ACIT, Ahmednagar V. Late Shri. Kamlakar Vasant Gaikwad, L/H- Vandana Gaikwad., Ahmednagar

ITA 2400/PUN/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 76068 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-01-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 09-04-2014
• Assessment Year: misc
• Appeal Filed On: 03-12-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P L PATHADE
• Keywords: Block assessment; Tax effect
• Section: 143(3); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NOS.2398, 2399 & 2400/PN/2012 (A.YS. 1996-97 TO 2002-03) S. NO. ITA NO. A.Y. APPELLANT RESPONDENT 1 ITA NO.2398/ PN/2012 1996-97 TO 2002-03 DCIT, AHMEDNAGAR CIRCLE, AHMEDNAGAR LATE SHRI VINAYAK VASANT GAIKWAD, L/H ROHINI GAIKWAD, DHANAJI NAGAR, SAVEDI, AHMEDNAGAR 2 ITA NO.2399/ PN/2012 1996-97 TO 2002-03 DCIT, AHMEDNAGAR CIRCLE, AHMEDNAGAR LATE SHRI DHANANJAY VASANT GAIKWAD L/H SHUBHANGI GAIKWAD, DHANAJI NAGAR, SAVEDI, AHMEDNAGAR 3 ITA NO.2400/ PN/2012 1996-97 TO 2002-03 DCIT, AHMEDNAGAR CIRCLE, AHMEDNAGAR LATE SHRI KAMLAKAR VASANT GAIKWAD L/H VANDANA GAIKWAD DHANAJI NAGAR, SAVEDI, AHMEDNAGAR ASSESSEE BY : SHRI BHARAT SHAH DEPARTMENT BY : SHRI P.L. PATHADE DATE OF HEARING : 21.01.2014 DATE OF ORDER : 27.01.2014 ORDER PER BENCH ALL THESE APPEALS FILED BY THE REVENUE AGAINST THE DIFFERENT LEGAL HEIRS OF LATE SHRI VINAYAK VASANT GAIKWAD ON SIMILA R ISSUE. SO THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF F BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. IN ITA NO.2398/PN/2012, THE REVENUE HAS RAISED T HE FOLLOWING GROUNDS: 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME- TAX(APPEALS) IS CONTRARY TO LAW AND TO THE FACTS A ND CIRCUMSTANCES OF THE CASE. 2 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS) GROSSLY ERRED IN CANCELING THE ASSESSMENT MADE BY ASSESSING OFFICER UNDER SECTION 158BD READ WITH SECTION 143(3) OF THE INCOME TAX ACT 1961 BY HOLDING THE SAME AS BAD IN LAW. 3. THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS) GRO SSLY ERRED IN CANCELING THE ASSESSMENT IN A VERY TENTATI VE MANNER AND WITHOUT THERE BEING ANY CONCLUSIVE EVIDENCE TO SHOW THAT NO SATISFACTION HAD BEEN RECORDED BY THE ASSESSING OFFICER AS REQUIRED U/S 158BD AND NO STATUTORY APPROVAL HAD BE EN TAKEN BEFORE MAKING THE ASSESSMENT AS REQUIRED U/S 158BG OF THE INCOME-TAX ACT, 1961. 4. THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS) GRO SSLY ERRED IN DECIDING ABOUT THE ABSENCE OF SATISF ACTION ON A 'PRIMA FACIE' READING OF THE ASSESSMENT ORDE R AND WITHOUT CAUSING ANY VERIFICATION TO BE MADE WITH REFERENCE TO THE RECORDS MAINTAINED BY THE TRANSFEROR ASSESSING OFFI CER. THE WORD 'PRIMA FACIE' AND 'SEEM' CLEARLY POINT OF THE TENTATIVENESS OF THE APPELLATE FINDINGS IN THIS MATTER. 5. THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS) ERR ED IN HOLDING THAT NO STATUTORY APPROVAL U/S. 158BG HAD BEEN TAKEN BY THE ASSESSING OFFICER, WHEREAS THE PRESENT ASSES SING OFFICER IN HIS REPORT HAD ONLY STATED THAT 'NO APPROVAL U/S 158BG IS CURRENTLY SEEN AVAILABLE ON RECORD'. 6. THE COMMISSIONER OF INCOME-TAX(APPEALS) GROSSLY ERR ED IN CANCELING THE ASSESSMENT BY RELYING ON SKETCHY AND INCOMPLETE INFORMATION AND WITHOUT CALLING FOR AND EXAMINING T HE RECORDS AND REGISTERS GERMANE TO THE ISSUES INVOLVED. 7. FOR THESE AND SUCH OTHER GROUNDS AS MAY BE URGED AT THE TIME OF HEARING, THE ORDER OF THE LEARNED COMMISSIO NER OF INCOME-TAX(APPEALS) MAY BE VACATED AND THAT OF TH E ASSESSING OFFICER BE RESTORED. 8. THE APPELLANT CRAVES TO ADD, AMEND, ALTER OR DEL ETE ANY OF THE ABOVE GROUNDS OF APPEAL DURING THE COURSE OF TH E APPELLATE PROCEEDINGS BEFORE THE HON'BLE TRIBUNAL. 2. SEARCH ACTION U/S.132 WAS CONDUCTED IN THE CASE OF DR. BAPU KANDEKAR ON 31.01.2003. AS PER THE PROVISIONS OF SECTION 158BE, SEARCH ASSESSMENT U/S.158BC IN THE CASE OF DR. KHAN DEKAR WAS COMPLETED ON 28.02.2005. DURING THE SEARCH, DOCUME NTS INCLUDING VISAR PAVATI OF SALE OF PLOTS AT SAVEDI, AHMEDNAGAR WAS FOUND AND SEIZED. ON ENQUIRY, IT WAS FOUND THAT DR. KANDEKAR PAID 3 RS.86,38,990/- TO FAMILY MEMBERS OF GAIKWAD FAMILY, OVER AND ABOVE PRICE OF RS.37,00,000/- MENTIONED IN THE SALE DEED. THEREFORE, NOTICE U/S.158BD WAS ISSUED TO THE ASSESSEE. THE A SSESSEE WAS AGGRIEVED BY THE ISSUE OF NOTICE AND COMPLETION OF ASSESSMENT U/S. 158BD R.W.S 143(3) AND FILED THE APPEAL AGAINST THE SAME ORDER. 2.1 IN APPEAL, IT WAS OBSERVED THAT THE ISSUE INVOL VED IS SIMILAR TO THE CASE OF SMT. MALATIBAI VASANTRAO GAIKWAD FOR TH E BLOCK PERIOD 1996-97 TO 2002-03 WHICH WAS DECIDED ON 26.09.2006 BY THE CONCERNED CIT(A) AND THE APPEAL OF THE ASSESSEE WAS ALLOWED. THE CIT(A) HAS HELD THAT THE FACTS AND CIRCUMSTANCES AR E SAME, SO GROUNDS RAISED BEFORE HIM ARE ALLOWED. BEFORE US, IT WAS POINTED OUT THAT THE APPEAL IN THE CASE OF SMT. MALATIBAI VASAN TRAO GAIKWAD, CIT(A) GRANTED THE RELIEF TO ERSTWHILE ASSESSEE AND DECIDED IN FAVOUR OF THE ASSESSEE BY OBSERVING AS UNDER: 6.3 PRIMA FACIE, A READING OF THE ASSESSMENT ORDER SHOWS THAT SUCH SATISFACTION HAS NOT BEEN RECORDED. THE SEARCH ON DR. KHANDEKAR TOOK PLACE ON 31/1/2003 (WRONGLY MENTIONE D BY AO ON 31/3/2003). BLOCK ASSESSMENTS IN THAT CASE WERE COMPLETED ON 28/2/2005. HOWEVER, NOTICE U/S 158BD WAS ISSUED AND SERVED ON THE APPELLANTS ONLY ON 30/3/2008. IT WOUL D THEREFORE, SEEM THAT SATISFACTION AS REQUIRED U/S 158BD HAS NO T BEEN RECORDED BY THE ASSESSING OFFICER. 6.4 VIDE GROUND OF APPEAL NO.4, THE APPELLANT OBJEC TED TO THE SAID ASSESSMENT ORDER ON THE GROUND THAT THE AO COM PLETED ASSESSMENT U/S 158BD R.W.S. 143(3), WITHOUT TAKING PRIOR APPROVAL OF JT. CIT OR ADDL. CIT FOR COMPLETION OF ASSESSMENT, U/S 158BG OF THE ACT. SECTION 158BG IS QUOTED BELOW : THE ORDER OF ASSESSMENT FOR THE BLOCK PERIOD SHALL BE PASSED BY AN ASSESSING OFFICER NOT BELOW THE RANK O F AN ASSISTANT COMMISSIONER [OR DEPUTY COMMISSIONER] OR AN ASSISTANT DIRECTOR [OR DEPUTY DIRECTOR], AS THE CAS E MAY BE: PROVIDED THAT NO SUCH ORDER SHALL BE PASSED WITHOUT THE PREVIOUS APPROVAL OF- (A) THE COMMISSIONER OR DIREC TOR, AS THE CASE MAY BE, IN RESPECT OF SEARCH INITIATED UND ER SECTION 132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS REQUISITIONED UNDER SECTION '132A, AFTER THE 30 TH DAY OF JUNE, 1995 BUT BEFORE THE 1 ST DAY OF JANUARY, 1997; 4 (B) THE [JOINT] COMMISSIONER OR THE [JOINT] DIRECTO R, AS THE CASE MAY BE, IN RESPECT OF SEARCH INITIATED UNDER SECTION 132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS REQUISITIONED UNDER SECTION 132A, ON OR AFTE R THE 1 ST DAY OF JANUARY, 1997] THIS SECTION IS PARA MATERIAL TO SECTION 153D UNDER THE NEW SCHEME OF SEARCH ASSESSMENTS. 6.5 THIS OFFICE LETTER DATED 18/9/2012 WAS ISSUED T O THE DCIT AHMEDNAGAR CIRCLE, AHMEDNAGAR ENQUIRING WHETHE R STATUTORY APPROVAL FOR COMPLETION OF ASSESSMENT U/S 158BD R.W.S.143(3) WAS OBTAINED FROM THEN JT.CIT / ADDL. CIT U/S 158BG. REPLY DATED 21/9/2012 HAS BEEN RECEIVED FROM DCIT AHMEDNAGAR CIRCLE STATING THAT 'THE RECORDS HAVE BE EN PERUSED AND NO APPROVAL U/S 158BD (TO BE READ AS 158BG) IS CURRENTLY SEEN AVAILABLE ON RECORD. 6.6 IT IS THEREFORE CLEAR FROM THE ABOVE THAT NO ST ATUTORY APPROVAL AS REQUIRED U/S 158BG HAS BEEN TAKEN BY TH E AO. IN VIEW OF THE SAME, THE ASSESSMENT BECOMES BAD IN LAW AND CANNOT BE SUSTAINED. 2.2 ON THIS LINE, THE LEARNED AUTHORIZED REPRESENTA TIVE HAS SUBMITTED THAT NO STATUTORY APPROVAL AS REQUIRED U/ S.158BG HAS BEEN TAKEN BY THE ASSESSING OFFICER. ACCORDINGLY, THE ASSESSMENT BECOMES BAD AS HELD IN SMT. MALATIBAI VASANTRAO GAI KWAD AND THE SAME SHOULD BE FOLLOWED IN THIS CASE. ON THE OTHER HAND, IT WAS POINTED OUT ON BEHALF OF THE LEARNED DEPARTMENTAL R EPRESENTATIVE THAT THE REVENUE HAS NOT REFERRED APPEAL AGAINST TH E ORDER OF CIT(A) BECAUSE OF TAX EFFECT. SO, IT COULD NOT BE PRECEDE NT IN ALL CASES AND MOREOVER EACH CASE HAS TO BE DECIDED IN ITS FACTS A ND CIRCUMSTANCES. THE CIT(A) BEFORE US HAS FOLLOWED THE DECISION OF S MT. MALATIBAI VASANTRAO GAIKWAD, WHEREIN IT WAS CLEARLY HELD BY T HE CIT(A) THAT NO STATUTORY APPROVAL AS REQUIRED U/S.158BG HAS BEEN T AKEN BY THE ASSESSING OFFICER, SO ASSESSMENT WAS NULLIFIED. WE FIND THAT IN THE CASE BEFORE US, THERE IS NOTHING ON RECORD TO SUGGE ST THAT THE ASSESSING OFFICER IN ASSESSEES OWN CASE HAS NOT OB TAINED STATUTORY APPROVAL AS REQUIRED U/S.158BG BY THE CONCERNED ASS ESSING OFFICER, SO THE SAME CANNOT BE FOLLOWED AS SUCH IN THE ABSEN CE OF PARTICULAR FINDING ON THE POINT. SO, IN THE INTEREST OF JUSTI CE, WE SET ASIDE THE 5 ORDER OF CIT(A) AND RESTORE THE SAME TO HIM WITH A DIRECTION TO DECIDE THE SAME AS PER FACT AND LAW AFTER PROVIDING DUE OP PORTUNITY OF HEARING TO THE ASSESSEE. SINCE WE ARE RESTORING TH E ISSUE ON PRELIMINARY ISSUE, WE ARE REFRAINING TO COMMENT ON THE MERIT OF THE ISSUE AT HAND. AS A RESULT, APPEAL OF REVENUE IS A LLOWED FOR STATISTICAL PURPOSES. 2.3 IN ITA NOS.2399 AND 2400/PN/2012 SIMILAR ISSUE AROSE AS IN THE ITA NO.2398/PN/2012 WHICH HAS BEEN DISCUSSED AN D DECIDED BY US IN PARA 4 OF THIS ORDER. FACTS BEING SIMILAR, S O FOLLOWING THE SAME REASONING, THESE TWO APPEALS ARE RESTORED TO THE CO NCERNED CIT(A) WITH A SIMILAR DIRECTION. 3. IN THE RESULT, ALL THREE APPEALS FILED BY THE RE VENUE ARE ALLOWED FOR STATISTICAL PURPOSES AS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT ON THIS THE 27 TH DAY OF JANUARY, 2014. SD/- SD/- (G.S. PANNU) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 27 TH JANUARY, 2014 GCVSR COPY TO:- 1. DEPARTMENT 2. ASSESSEE 3. THE CIT(A)-I, PUNE 4. THE CIT-I, PUNE 5. THE DR, A BENCH, I.T.A.T., PUNE. 6. GUARD FILE BY ORDER //TRUE COPY// SENIOR PRIVATE SECRETARY, I.T.A.T., PUNE