PENTAGON WATERLINES P.LTD, MUMBAI V. DCIT CEN CIR 24& 26, MUMBAI

ITA 2274/MUM/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9760 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-07-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 30-01-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 20-04-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITTAL
• Assessee Lawyers: DISHA SONI
• Keywords: Retrospective amendment; Reason to believe
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C MUMBAI BEFORE SHRI JOGINDER SINGH (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 2274 / MUM/20 15 ASSESSMENT YEAR: 2010 - 11 M/S. PENTAGON WATERLINES P. LTD. VS. DCIT CEN CIR 24 & 26 G - 6, GR. FLOOR, EVEREST GRANDE BLDG. AAYAKAR BHAVAN MAHAKALI CAVES RD., NEAR AHUJA CENTRE MUMBAI SHANTI NAGAR, MUM BAI 400093 PAN NO. AADCP6334J (APPELLANT) (RESPONDENT) ASSESSEE BY : MS. DISHA SONI, AR REVENUE BY: MR. RAJAT MITTAL, DR DATE OF HEARING : 04/05/2017 DATE OF PRONOUNCEMENT: 28/07/2017 ORDER PER N.K. PRADHAN, AM THIS IS AN APPEAL FILED BY THE ASSESSEE . THE RELEVANT ASSESSMENT YEAR IS 2010 - 11 . THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER (APPEALS) 51, MUMBAI AND ARISES OUT OF THE ORDER U/S 143(3) R.W.S. 153A OF THE INCOME TAX ACT, 1961 (THE ACT). 2. THE GROUNDS OF APPEAL FILED BY THE ASSESSEE READ AS UNDER : GROUND NO. I 1. VALIDITY OF SEARCH IN THE FACTS AND CIR CUMSTANCES OF THE CASE AND IN LAW: 1.1 THE LEARNED CIT(A) ERRED IN REJECTING THE APPELLANTS GROUND OF APPEAL THAT IN THE ABSENCE OF SATISFACTION OF INGREDIENTS OF SEARCH ITA NO. 2274 /MUM/201 5 2 PRESCRIBED UNDER SECTION 132(1) OF THE ACT; THE ASSESSMENT BE DECLARED WITHOUT JURISDICTION AND INVALID. 1.2 THE LEARNED CIT(A) FAILED TO TAKE NOTE OF THE IMPORTANT FACT THAT THE APPELLANT HAD SUBMITTED ITSELF TO THE ASSESSMENT JURISDICTION UNDER PROTEST VI D E LETTER DATED 22.10.2012. 1.3 THE LEARNED CIT(A) FAILED TO APPRECIATE THE RA TIO LAID DOWN BY THE HIGH COURTS IN VARIOUS CASE LAWS CITED BEFORE HER WHEREIN THE RIGHT OF THE ASSESSEE TO CHALLENGE THE VALIDITY OF THE SEARCH BEFORE THE APPELLATE AUTHORITIES UNDER THE I.T. ACT HAS BEEN CONFIRMED. 1.4 THE LEARNED CIT(A) ERRED IN JUSTIFY ING THE REJECTION OF THE RIGHT OF CHALLENGE TO THE VALIDITY OF THE SEARCH BASED ON THE REASONS UNACCEPTABLE IN LAW. 1.5 CONSEQUENT UPON THE FOREGOING, THE LEARNED CIT(A) FAILED TO APPRECIATE THAT ASSESSMENT OF INCOME OF RS. 11,49,259/ - SOLELY ON THE BASIS OF DECLARATION OF INCOME MADE BY THE APPELLANT UNDER UNDUE INFLUENCE FROM THE INVESTIGATING TEAM IN THE COURSE OF SEARCH OPERATIONS, IS INVALID IN LAW AND THEREFORE LIABLE TO BE DELETED. ALTERNATIVE GROUND: IN THE FACTS OF THE CASE AND IN LAW, THE LEARN ED CIT(A) ERRED IN REJECTING THE APPELLANTS GROUND OF APPEAL THAT ASSESSMENT OF INCOME OF RS. 11,49,259/ - SOLELY ON THE BASIS OF DECLARATION OF INCOME MADE BY THE APPELLANT UNDER UNDUE INFLUENCE FROM THE INVESTIGATING TEAM I N THE COURSE OF SEARCH OPERATIO NS, IS INVALID IN LAW AND THEREFORE LIABLE TO BE DELETED. 3 . BEFORE US, THE LD. COUNSEL OF THE ASSESSEE FILES A PETITION STATING THE FOLLOWING : V IDE FINANCE ACT 2017, A RETROSPECTIVE AMENDMENT HAS BEEN MADE WITH EFFECT FROM 01.04.1962 BY INSERTION OF AN EXPLANATION BELOW SECTION 132(1) OF THE ACT AS FOLLOWS: [EXPLANATION FOR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARED THAT THE REASON TO BELIEVE, AS RECORDED BY THE INCOME - TAX AUTHORITY UNDER THIS SUB - SECTION, SHALL NOT BE DISCLOSED TO ANY PERSON OR AN Y AUTHORITY OR THE APPELLATE TRIBUNAL.] IN VIEW OF THE AFORESAID RETROSPECTIVE AMENDMENT, IT APPEARS THAT THE APPEAL BEFORE YOUR HONOR IS NOT MAINTAINABLE. ACCORDINGLY, THE GROUNDS OF ITA NO. 2274 /MUM/201 5 3 APPEAL (INCLUDING THE ALTERNATIVE GROUND) BEFORE THE HONBLE BENCH STAN D WITHDRAWN. IN THE CIRCUMSTANCES, THE HONBLE BENCH IS REQUESTED TO PASS AN APPROPRIATE ORDER IN ACCORDANCE WITH PROVISIONS OF THE ACT. 4 . ON THE OTHER HAND, THE LD. DR SUPPORTS THE ORDER PASSED BY THE LD. CIT(A). HE STATES THAT HE HAS NO OBJECTION TO TH E SUBMISSION OF THE ASSESSEE REQUESTING FOR WITHDRAWAL OF APPEAL. 5 . WE HAVE HEARD THE RIVAL SUBMISSION S AND PERUSED THE RELEVANT MATERIAL S ON RECORD. IN VIEW OF THE SUBMISSION BY THE LD. COUNSEL DELINEATED AT PARA 3 HERE - IN - ABOVE, THE APPEAL IS TREATED A S WITHDRAWN. 6. IN THE RESULT, THE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN C OURT ON 28/07/2017. SD/ - SD/ - ( JOGINDER SINGH) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 28/07/2017 RAHUL SHARMA , SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI