Appeal details
Counselvise Citation
[2019] 118 COUNSELVISE.COM (IT) 5943 (ITAT-CHENNAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 month(s) 27 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
23-01-2019
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
C
Assessment Year
2007-2008
Appeal Filed On
26-09-2018
Judgement Text
, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: CHENNAI , , ' BEFORE SHRI GEORGE MATHAN , JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ./ ITA NOS.2739 TO 2745/CHNY/2018 /ASSESSMENT YEARS: 2001-02 TO 2007-08 SHRI D.M.VENKATESWARAN, NO.9, A.A.ROAD, ARASARADI, MADURAI-625 016. VS. THE ASST. COMMISSIONER- OF INCOME TAX, CENTRAL CIRCLE-III, MADURAI. [PAN: A AYPV 5117 B ] ( ) /APPELLANT) ( *+) /RESPONDENT) ./ ITA NOS.2746 TO 2752/CHNY/2018 /ASSESSMENT YEARS: 2001-02 TO 2007-08 SHRI D.M.MAHESWARAN, NO.9, A.A.ROAD, ARASARADI, MADURAI-625 016. VS. THE ASST. COMMISSIONER- OF INCOME TAX, CENTRAL CIRCLE-III, MADURAI. [PAN: AFQPM 4097 L ] ( ) /APPELLANT) ( *+) /RESPONDENT) ./ ITA NOS.2753 TO 2759/CHNY/2018 /ASSESSMENT YEARS: 2001-02 TO 2007-08 SMT. M. JEYA, NO.9, A.A.ROAD, ARASARADI, MADURAI-625 016. VS. THE ASST. COMMISSIONER- OF INCOME TAX, CENTRAL CIRCLE-III, MADURAI. [PAN: AAVPJ 4900 B ] ( ) /APPELLANT) ( *+) /RESPONDENT) ITA NOS.2739-2745/CHNY/2018 ITA NOS.2746-2752/CHNY/2018 ITA NOS.2753-2759/CHNY/2018 :- 2 -: ) , / APPELLANT BY : MR.T.VASUDEVAN, ADV. *+) , /RESPONDENT BY : MR.SAILENDRA MAMIDI, PCIT , /DATE OF HEARING : 03.01.2019 , /DATE OF PRONOUNCEMENT : 23.01.2019 / O R D E R PER BENCH : THESE ARE THE APPEALS FILED BY THE ASSESSEES DIREC TED AGAINST THE DIFFERENT ORDERS OF THE LEARNED COMMISSIONER OF INC OME TAX (APPEALS)-II, MADURAI, DATED 10.05.2010 IN THE CASE OF SHRI D.M. VENKATESWARAN, DATED 24.05.2010 IN THE CASE OF SHRI D.M.MAHESWARAN & DAT ED 26.05.2010 IN THE CASE OF SMT.M.JEYA, FOR THE AYS 2001-02 TO 2007 -08 RESPECTIVELY. 2. SINCE THE COMMON ISSUES ARE INVOLVED IN ALL THES E APPEALS, WE PROCEED TO DISPOSE OF THE SAME VIDE THIS COMMON ORD ER. FOR THE SAKE OF CLARITY AND CONVENIENCE, THE FACTS RELEVANT IN THE CASE OF SHRI D.M.VENKATESWARAN, IN ITA NO.2739/CHNY/2018 ARE STA TED HEREIN. 3. THE ASSESSEE RAISED THE FOLLOWING GROUNDS OF APP EAL: 1. THE ORDER OF THE COMMISSIONER OF INCOME TAX (APP EALS) IN SO FAR AS IT IS AGAINST THE ASSESSEE IS CONTRARY TO LAW, ERRONEOUS AND UNSUSTAI NABLE ON THE FACTS OF THE CASE. A. JURISDICTION 2. THE CIT(A) OUGHT TO HAVE SEEN THAT THERE WAS LACK OF JURISDICTION FOR THE OFFICER IN COMPLETING THE ASSESSMENTS UNDER SEC.153C OF THE AC T. 3. THE CIT(A) OUGHT TO HAVE APPRECIATED THAT THE ADD ITIONS MADE SHOULD RELATE TO THE SATISFACTION RECORDED BY THE OFFICER FOR ISSUING NO TICE UNDER SEC.153C AND THERE BEING NO SUCH RECORDING, THE ASSESSMENT FRAMED U/S.153C STAND S VITIATED AND NEEDS TO BE CANCELLED. 4. THE CIT(A) OUGHT TO HAVE FURTHER APPRECIATED THAT WHERE THE SATISFACTION RECORDED ON ONE ISSUE IS IGNORED IN THE ASSESSMENT AND ADDITION IS MADE ON OTHER ITEMS WHICH ARE NOT ITA NOS.2739-2745/CHNY/2018 ITA NOS.2746-2752/CHNY/2018 ITA NOS.2753-2759/CHNY/2018 :- 3 -: PART OF SATISFACTION RECORDED, THEN THE WHOLE ASSES SMENT FRAMED UNDER SEC.153C IS AB INITIO VOID AND UNTENABLE IN LAW. 5. THE CIT(A) FURTHER OUGHT TO HAVE SEEN THAT WHILE SATISFACTION RECORDED FOR ISSUANCE OF NOTICE U/S.153C WAS ON JEWELLERY SEIZED IN THE SEARC H, NO ADDITION WAS MADE IN THE ASSESSMENT FRAMED AND HENCE THE OFFICER LACKS IN JU RISDICTION TO MAKE ADDITIONS ON ANY OTHER ISSUES AND THUS ASSESSMENT NEEDS TO BE ANNULL ED. 6. THE CIT(A) FURTHER FAILED TO APPRECIATE THAT RECO RDING OF SATISFACTION BY THE OFFICER AS TO THE UNDISCLOSED NATURE OF THE INCRIMINATING MATERIA L FOUND IN THE SEARCH WAS PARAMOUNT AND THERE BEING NO SUCH RECORDING, THE ASSESSMENT F RAMED U/S.153C STANDS VITIATED AND NEEDS TO BE CANCELLED. MERITS:- 7. THE CIT(A) OUGHT TO HAVE APPRECIATED THAT THERE W AS LACK OF SUFFICIENT OPPORTUNITY TO THE ASSESSEE AND COMPLETION OF ASSESSMENT UNDER SEC.144 WAS UNJUSTIFIED. 8. THE CLT(A) FURTHER FAILED TO APPRECIATE THAT THE ADDITIONS FOR THE A.Y.S 2001-02 TO 2007- 08 ON ACCOUNT INCOME FROM PLYING OF BUSES WAS ESTIM ATED BY OFFICER AT 5% OF GROSS COLLECTIONS AS AGAINST THE BOOKS MAINTAINED BY ASSE SSEE AND WAS NOT JUSTIFIED IN CONFIRMING THE ESTIMATED ADDITION OF 3.5% IN THE PROCEEDINGS U NDER SEC.153C OF THE ACT AND OUGHT TO HAVE DELETED THE ADDITIONS ENTIRELY. 9. THE C1T(A) FURTHER FAILED TO APPRECIATE THAT INCO ME FROM JEYAM THEATRE FOR A.Y.S 2005- 06, 06-07 & 07-08 WERE ADDED WITHOUT REJECTION OF T HE BOOKS MAINTAINED AND HENCE WAS NOT JUSTIFIED IN SUSTAINING ADDITION OF 20% OF COLL ECTIONS AND OUGHT TO HAVE DELETED THE ENTIRE ADDITION FOR THE REASON IT IS OUTSIDE THE PU RVIEW OF SEC.153C OF THE ACT. 10.THE CIT(A) FURTHER FAILED TO APPRECIATE THAT THE INCOME RETURNED FROM AMIRTHAM THEATRE FOR THE A.Y.S 2006-07 AND 2007-08 WAS BASED ON REGU LARLY MAINTAINED BOOKS OF ACCOUNTS AND THIS NOT BEING AN INCRIMINATING MATERIAL, THE A DDITION SUSTAINED ON ESTIMATED BASIS IS OUTSIDE THE PURVIEW OF SEC.153C AND HENCE UNTENABLE IN LAW. 11. THE CIT(A), IN ANY EVENT, FAILED TO APPRECIATE THAT THE ADDITIONS MADE IN THE ASSESSMENT, WHERE NO SATISFACTION IS RECORDED AND N OT BASED ON INCRIMINATING MATERIAL CANNOT BE A FODDER FOR THE PROCEEDINGS UNDER SEC.15 3C OF THE ACT. 4. BRIEFLY, THE FACTS OF THE CASE ARE AS UNDER: THERE WERE SEARCH AND SEIZURE OPERATION U/S.132 OF THE INCOME TAX ACT, 1961, IN THE CASE OF ONE SHRI D. MAYANDI & OTH ERS ON 23.08.2006. IT IS STATED THAT CERTAIN MATERIALS BELONGING TO THE A PPELLANT WERE FOUND AND SIZED DURING THE COURSE OF SEARCH AND SEIZURE PROCE EDINGS. CONSEQUENTLY, THE AO ISSUED A NOTICE U/S.153C OF INCOME TAX ACT, 1961 CALLING UPON THE APPELLANT TO FILE THE RETURN OF INCOME FOR THE AYS 2001-02 TO 2007-08. IN RESPONSE TO THE SAID NOTICES, THE APPELLANT FILED T HE RETURNS OF INCOME ITA NOS.2739-2745/CHNY/2018 ITA NOS.2746-2752/CHNY/2018 ITA NOS.2753-2759/CHNY/2018 :- 4 -: BELATEDLY ON 07.10.2008. AGAINST THE SAID RETURN O F INCOME, AFTER ISSUING NOTICE U/S.143(2), THE ASSESSMENT CAME TO BE COMPLE TED BY THE ACIT, CENTRAL CIRCLE-III, MADURAI, INVOKING PROVISIONS OF SEC.144 OF THE ACT AT A TOTAL INCOME OF RS.2,74,321/-. WHILE DOING SO, THE AO ESTIMATED THE PROFIT FROM THE BUSINESS OF PLYING OF BUSES AT 5% OF THE G ROSS RECEIPTS. AGAINST THE SAID ASSESSMENT ORDER, AN APPEAL WAS PREFERRED BEFORE THE LD.CIT(A) WHO VIDE IMPUGNED ORDER HAD DIRECTED THE AO TO ADOP T THE GROSS PROFIT AT 3.5% OF THE RECEIPTS. 5. BEING AGGRIEVED, THE APPELLANT IS BEFORE US IN T HE PRESENT APPEALS. AT THE OUTSET, THERE IS A DELAY OF 2969 DAYS IN FIL ING OF THE PRESENT APPEALS. THE ASSESSEE FILED A PETITION DULY SWORN BY HIM ON 25.09.2018 STATING THAT THE DELAY IN FILING THE PRESENT APPEAL S OCCURRED ON ACCOUNT OF THE WRONG ADVICE GIVEN BY THE EARLIER CHARTERED ACC OUNTANT, WHO ADVISED THE ASSESSEE NOT TO FILE ANY FURTHER APPEALS. IT I S ONLY AFTER THE PROCLAMATION NOTICE FOR THE SALE OF THE PROPERTIES TO REALIZE THE TAXES BY THE DEPARTMENT, THE ASSESSEE APPROACHED ANOTHER CHA RTERED ACCOUNTANT WHO ADVISED HIM TO FILE AN APPEAL. IT IS FURTHER S TATED THAT THE AO HAD NOT RECORDED ANY SATISFACTION AS REQUIRED UNDER THE PRO VISIONS OF SEC.153C OF THE ACT WHICH IS A CONDITION PRECEDENT FOR INVOKING THE PROVISIONS OF SEC.153C OF THE ACT. IN SUPPORT OF THIS, HE HAS AL SO FILED A COPY OF ORDER SHEET OF THE AO OBTAINED UNDER RTI ACT TO SAY THAT NO SATISFACTION WAS RECORDED BY THE AO. HE FURTHER SUBMITTED THAT THE TECHNICALITIES SUCH AS ITA NOS.2739-2745/CHNY/2018 ITA NOS.2746-2752/CHNY/2018 ITA NOS.2753-2759/CHNY/2018 :- 5 -: DELAY SHOULD NOT COME IN THE WAY OF RENDERING THE S UBSTANTIAL JUSTICE WHEN THE ASSESSEE HAD A STRONG CASE ON MERITS. HE FURTHER SUBMITTED THAT THE DELAY ON ACCOUNT OF NEGLIGENCE ON THE PART OF COUNSEL CONSTITUTES A REASONABLE CAUSE FOR CONDONATION OF THE DELAY. I N SUPPORT OF THIS HE PLACED RELIANCE ON THE DECISION OF THE HONBLE SUPR EME COURT REPORTED IN AIR 1979 SC 1666 (M/S. CONCORD OF INDIA INSURANCE C O. LTD. VS. SMT. NIRMALA DEVI AND OTHERS) AND ALSO THE HONBLE JURIS DICTIONAL HIGH COURT IN THE CASE OF M/S.HOSANNA MINISTRIES VS. THE ITO (EXE MPTIONS), TIRUNELVELI REPORTED IN 2017 (3) TMI 1387 AND ALSO THE HONBLE BOMBAY HIGH COURT IN THE CASE OF VIJAY VISHIN MEGHANI VS. THE DCIT, CIRC LE-23 (2), REPORTED IN 2017 (10) TMI 248. 6. ON THE OTHER HAND, LD.DR VEHEMENTLY OPPOSED THE CONDONATION OF THE DELAY. IT IS SUBMITTED THAT THE APPEALS FILED B Y THE REVENUE AGAINST THE ORDERS OF THE CIT(APPEALS) WERE DISPOSED OF BY THIS TRIBUNAL ON 26.05.2010 BY REMITTING TO THE FILE OF ASSESSING OF FICER TO RE-DO THE ASSESSMENT. THEREFORE, ACCORDING TO THE LD.DR, THE PRESENT APPEALS SHOULD BE TREATED AS INFRUCTUOUS. HE FURTHER SUBMI TTED THAT THE DELAY OF 2969 DAYS CANNOT BE CONDONED BY THIS TRIBUNAL. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW. THE DELAY IN FILING THE PRESEN T APPEALS IS EXPLAINED BY THE ASSESSEE STATING THAT THE DELAY HAD OCCURRED ON ACCOUNT OF WRONG ITA NOS.2739-2745/CHNY/2018 ITA NOS.2746-2752/CHNY/2018 ITA NOS.2753-2759/CHNY/2018 :- 6 -: LEGAL ADVICE GIVEN BY EARLIER COUNSEL WHO WAS HANDL ING HIS INCOME TAX MATTERS. IT IS ONLY AFTER THE APPELLANT APPROACHED ANOTHER PROFESSIONAL WHO ADVISED HIM TO FILE FURTHER APPEALS BEFORE TRIB UNAL, THE APPEALS CAME TO BE FILED WITH THE DELAY OF 2969 DAYS. THESE AVE RMENTS MADE BY THE APPELLANT REMAIN UNCONTROVERTED. IT IS A SETTLED PR INCIPLE OF LAW THAT IF A SUFFICIENT CAUSE HAD BEEN SHOWN FOR CONDONATION OF DELAY, IT IS THE DUTY OF THE COURT TO CONSIDER THE APPLICATION KEEPING IN VI EW THE WELL SETTLED PRINCIPLES. IF THE LITIGANT HAS ACTED UNDER LEGAL ADVICE BONA FIDE AND THAT IS MISTAKEN, ORDINARILY THE LITIGANT SHOULD NOT BE PENALIZED BY NOT CONDONING THE DELAY. IN THE PRESENT CASE ALSO AS S TATED BY US SUPRA, THE APPELLANT HAD ACTED BONA FIDE BY FOLLOWING THE ADVICE OF THE EARLIER COUNSEL NOT TO FILE THE APPEAL. THIS BY ITSELF CANNOT BE T REATED AS A DELIBERATE OR INTENTIONAL ACT, FOR WHICH, THE APPELLANT CAN BE PU NISHED. THE KERALA HIGH COURT AFTER REFERRING TO THE JUDGMENT OF SUPREME CO URT IN THE CASE OF CONCORD OF INDIA INSURANCE CO. LTD. VS. NIRMALA DEV I AND OTHERS, SUPRA, HELD AS FOLLOWS: 'THE LAW IS SETTLED THAT MISTAKE OF COUNSEL MAY IN CERTAIN CIRCUMSTANCES BE TAKEN INTO ACCOUNT IN CONDONING DELAY ALTHOUGH THERE IS N O GENERAL PROPOSITION THAT MISTAKE OF COUNSEL BY ITSELF IS ALWAYS A SUFFICIENT GROUND. IT IS ALWAYS A QUESTION WHETHER THE MISTAKE WAS BONAFIDE OR WAS MERELY A DE VICE TO COVER AN ULTERIOR PURPOSE SUCH AS LACHES ON THE PART OF THE LITIGANT OR AN ATTEMPT TO SAVE LIMITATION IN AN UNDERHAND WAY. THE HIGH COURT UNFORTUNATELY N EVER CONSIDERED THE MATTER FROM THIS ANGLE. IF IT HAD, IT WOULD HAVE SEEN QUIT E CLEARLY THAT THERE WAS NO ATTEMPT TO AVOID THE LIMITATION ACT BUT RATHER TO FOLLOW IT ALBEIT ON A WRONG READING OF THE SITUATION.' 'THE HIGH COURT TOOK THE VIEW THAT MR. RAIZADA BEIN G AN ADVOCATE OF 34 YEARS' STANDING COULD NOT POSSIBLY MAKE THE MISTAKE IN VIE W OF THE CLEAR PROVISIONS ON THE SUBJECT OF APPEALS EXISTING UNDER SECTION 39(1) OF THE PUNJAB COURTS ACT AND THEREFORE, HIS ADVICE TO FILE THE APPEAL BEFORE THE DISTRICT COURT WOULD NOT COME TO ITA NOS.2739-2745/CHNY/2018 ITA NOS.2746-2752/CHNY/2018 ITA NOS.2753-2759/CHNY/2018 :- 7 -: THE RESCUE OF THE APPELLANT UNDER SECTION 5 OF THE LIMITATION ACT. THE SUPREME COURT UPSET THIS APPROACH.' 'I AM OF THE VIEW THAT LEGAL ADVICE GIVEN BY THE ME MBERS OF THE LEGAL PROFESSION MAY SOMETIMES BE WRONG EVEN AS PRONOUNCEMENT ON QUE STIONS OF LAW BY COURTS ARE SOME TIMES WRONG. AN AMOUNT OF LATITUDE IS EXPE CTED IN SUCH CASES FOR, TO ERR IS HUMAN AND LAY MEN, AS LITIGANTS ARE, MAY LEGITIM ATELY LEAN ON EXPERT COUNSEL IN LEGAL AS IN OTHER DEPARTMENTS, WITHOUT PROBING THE PROFESSIONAL COMPETENCE OF THE ADVICE. THE COURT MUST OF COURSE, SEE WHETHER IN SU CH CASES THERE IS ANY TAINT OF MALA FIDES OR ELEMENT OF RECKLESSNESS OR RUSE. IF N EITHER IS PRESENT, LEGAL ADVICE HONESTLY SOUGHT AND ACTUALLY GIVEN, MUST BE TREATED AS SUFFICIENT CAUSE WHEN AN APPLICATION UNDER SECTION 5 OF THE LIMITATION ACT IS BEING CONSIDERED. THE STA TE HAS NOT ACTED IMPROPERLY IN RELYING ON ITS LEGAL AD VISERS.' 8. THE ANOTHER PRINCIPLE GOVERNING THE CONDONATION OF THE DELAY IS THAT THE TECHNICALITIES SHOULD NOT COME IN THE WAY OF ADVANCING OF SUBSTANTIAL JUSTICE. THE HONBLE APEX COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. M.S.T.KATIJI & OTHERS REPORTED IN 1 67 ITR 471 LAID DOWN THE FOLLOWING PRINCIPLES BASED ON WHICH THE ISSUE W ITH REGARD TO CONDONATION OF THE DELAY CAN BE APPROACHED: 1. ORDINARILY A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL LATE. 2. REFUSING TO CONDONE DELAY CAN RESULT IN A MERITO RIOUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTICE BEING DE FEATED. AS AGAINST THIS WHEN DELAY IS CON- DONED THE HIGHEST THAT CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERITS AFTER HEARING THE PARTIES. 3. EVERY DAYS DELAY MUST BE EXPLAINED DOES NOT M EAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOURS DELAY, EVERY S ECONDS DELAY? THE DOCTRINE MUST BE APPLIED IN A RATIONAL COMMON SENSE PRAGMATI C MANNER. 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERA TIONS ARE PITTED AGAINST EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEIN G DONE BECAUSE OF A NON- DELIBERATE DELAY. 5. THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MALA FIDES. A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IN FACT HE RUNS A SE RIOUS RISK. 6. IT MUST BE GRASPED THAT JUDICIARY IS RESPECTED N OT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. ITA NOS.2739-2745/CHNY/2018 ITA NOS.2746-2752/CHNY/2018 ITA NOS.2753-2759/CHNY/2018 :- 8 -: 9. KEEPING IN VIEW THE ABOVE PRINCIPLES, WE NOW PRO CEED TO DEAL WITH THE PRESENT CASE. NO DOUBT, THE DELAY OF 2969 DAYS IS HUGE AND ENORMOUS BUT LOOKING INTO THE REASONS GIVEN FOR THE DELAY, I T CANNOT BE SAID THAT THERE ARE MALAFIDES ON THE PART OF THE APPELLANT IN FILING THE APPEAL BELATEDLY. FURTHER, NO PEDANTIC VIEW OR APPROACH T O BE ADOPTED BY THE COURT IN CONSIDERING THE REASONS GIVEN BY THE PARTI ES FOR DELAY IN APPROACHING THE COURT. FURTHER, IT DOES NOT MEAN T HAT EVERY DAY DELAY MUST BE EXPLAINED. THUS, THE UNDERLYING PRINCIPLE I S THAT WHEN THE SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS AR E PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED. IN THE PRESENT CASE, IT IS A CASE OF THE ASSESSEE THAT NO SATISFACTION NOTE WAS RECORDED BY THE AO AT THE TIME OF ISSUE OF NOTICE U /S.153C. NOW, IT IS SETTLED PRINCIPLE OF LAW THAT RECORDING OF SATISFAC TION BY THE AO AT THE TIME OF ISSUANCE OF NOTICE U/S.153C IS A SINE QUA NON FOR GETTING JURISDICTION OVER THE SEIZED DOCUMENTS. IN CASE, A SATISFACTION NOTE WAS NOT RECORDED, THE ASSESSING OFFICER WOULD NOT GET JURISDICTION FO R THE SEIZED MATERIALS RECEIVED BY HIM. THIS POSITION OF LAW WAS EXPLAINE D BY THE HONBLE APEX COURT IN THE CONTEXT OF PROVISION OF SEC.158BD OF T HE ACT IN THE CASE OF CIT V. CALCUTTA KNITWEARS REPORTED IN 362 ITR 673 ( SC). THE CBDT VIDE ITS CIRCULAR NO.24/2015 DATED 31.12.2015 ACCEPTED T HAT THE SAME POSITION HOLDS GOOD EVEN IN THE CONTEXT OF PROVISIONS OF SEC .153C OF ACT. IN THE PRESENT CASE, THE APPELLANT HAD FILED THE COPIES OF ORDERSHEET ENTRIES OF THE ASSESSING OFFICER INDICATING THAT NO SATISFACTI ON NOTE WAS RECORDED BY ITA NOS.2739-2745/CHNY/2018 ITA NOS.2746-2752/CHNY/2018 ITA NOS.2753-2759/CHNY/2018 :- 9 -: THE ASSESSING OFFICER. EVEN THE LD.CIT(DR) ALSO FI LED COPIES OF THE ORDERSHEET ENTRIES, WHEREIN, NO SATISFACTION NOTE W AS RECORDED. THEREFORE, THIS MATERIAL CONCLUSIVELY ESTABLISHED THAT THE ASS ESSING OFFICER HAS NO JURISDICTION TO PROCEED AGAINST THE APPELLANT UNDER THE PROVISIONS OF SEC.153C OF THE ACT. THUS, IN THE INTEREST OF ADVA NCING SUBSTANTIAL JUSTICE TO THE APPELLANT, THE DELAY OF 2969 DAYS CAN BE CON DONED ACCORDINGLY, WE CONDONE THE DELAY OF 2969 DAYS AND ADMIT THE APPEAL . 10. NOW, WE SHALL DEAL WITH THE GROUND NO.11 OF APP EAL RAISED BY THE APPELLANT, WHICH GOES TO THE ROOT OF THE MATTER. I N THESE GROUNDS OF APPEAL, THE APPELLANTS CHALLENGES THE JURISDICTION OF THE ASSESSING OFFICER U/S.153C ON THE GROUND THAT NO SATISFACTION NOTE WA S RECORDED BY THE ASSESSING OFFICER AS WELL AS THE ASSESSING OFFICER OF SEARCHED PERSON SAYING THAT THE INCRIMINATING MATERIAL BELONGING TO THE APPELLANT WERE FOUND DURING THE COURSE OF SEARCH AND SEIZURE PROCE EDINGS IN THE CASE OF SHRI D. MAYANDI & OTHERS. IN SUPPORT OF THIS CONTE NTION, THE APPELLANT HAD FILED THE COPIES OF ORDERSHEET ENTRIES OF ASSESSING OFFICER OBTAINED UNDER RTI ACT. EVEN THE LD.CIT(DR) HAD FILED THE COPIES OF ORDERSHEET ENTRIES WHEREIN NO SUCH SATISFACTION WAS RECORDED BY THE AS SESSING OFFICER. WE MUST MENTION HERE THAT THOUGH THE LD.CIT(DR) IN HIS COVERING LETTER HAD STATED THAT COPY OF THE SATISFACTION NOTE IS FURNIS HED, IN FACT, WHAT IS FURNISHED IS ONLY A COPIES OF ORDERSHEET ENTRIES OF ASSESSING OFFICER WHICH ARE SAME AS FURNISHED BY THE APPELLANT. THEREFORE, KEEPING IN VIEW THE ITA NOS.2739-2745/CHNY/2018 ITA NOS.2746-2752/CHNY/2018 ITA NOS.2753-2759/CHNY/2018 :- 10 -: CBDT CIRCULAR NO.24/2015 DATED 31.12.2015 AND THE J UDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF CALCUTTA KNITW EARS, SUPRA, IN THE ABSENCE OF SUCH SATISFACTION NOTE RECORDED BY THE A SSESSING OFFICER, THE ASSESSMENT ORDER PASSED IS NULL AND VOID AB INITIO AND ACCORDINGLY, WE HOLD THAT THE ASSESSMENT ORDERS PASSED CANNOT BE SU STAINED IN THE EYES OF LAW. 11. SINCE THE ASSESSMENT ORDERS ARE QUASHED ON THE JURISDICTIONAL ORDERS, WE CONSIDER UNNECESSARY TO DEAL WITH THE OT HER GROUNDS OF APPEAL. 12. THE IDENTICAL FACTS ARE INVOLVED IN THE APPEALS IN ITA NOS.2739 TO 2745/CHNY/2018 IN THE CASE OF SHRI D.M.VENKATESWARA N, IN ITA NOS.2746 TO 2752/CHNY/2018 IN THE CASE OF SHRI D.M.MAHESWARA N, & IN ITA NOS.2753 TO 2759/CHNY/2018 IN THE CASE OF SMT.M.JEY A, FOR THE REASONS GIVEN BY US IN APPEAL NO.2739/CHNY/2018 OF SHRI D.M .VENKATESWARA, SUPRA, THE ABOVE APPEALS STAND ALLOWED. 13. IN THE RESULT, ALL THE APPEALS FILED BY THE ASS ESSEES ARE ALLOWED. ORDER PRONOUNCED ON THE 23 RD JANUARY, 2019 IN CHENNAI. SD/- SD/- ( ) (GEORGE MATHAN) /JUDICIAL MEMBER ( ) ( INTURI RAMA RAO ) /ACCOUNTANT MEMBER ITA NOS.2739-2745/CHNY/2018 ITA NOS.2746-2752/CHNY/2018 ITA NOS.2753-2759/CHNY/2018 :- 11 -: /CHENNAI, 3 /DATED: 23 RD JANUARY, 2019. TLN , *45 65 /COPY TO: 1. ) /APPELLANT 4. 7 /CIT 2. *+) /RESPONDENT 5. 5 * /DR 3. 7 ( ) /CIT(A) 6. /GF
