Smt. Lalitaben Jivanlal Jagani, RAJKOT-GUJARAT V. The Assistant Commr. Income Tax,Cen.Cir-1, RAJKOT-GUJARAT

ITA 290/RJT/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6677 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 8 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 15-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Validity of assessment
• Section: 143(3); 153A; 132; 11

Judgement Text

ITA NO S . 289 & 290 / RJT/201 5 A.Y S . 20 08 - 09 & 2011 - 12 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT (CONDUCTED THROUGH E - COURT AT AHMEDABAD) [CORAM: PRAMOD KUMAR AM AND MAHAVIR PRASAD JM ] ITA NO S . 289 & 290 /RJT/201 5 ASSESSMENT YEAR S : 2008 - 09 & 2011 - 12 LALITABEN JIVANLAL JAGANI, ... ........... . APPE LLANT 61, AMI APARTMENT, OPP. GIRNAR CINEMA, RAJKOT. [PAN: AAXPJ 8636 J ] VS. ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1, RAJKOT. ..... ............ RESPONDENT APPEARANCES BY: M.J. RANPURA , F OR THE A PPELLANT YOGESH PANDEY, FOR T HE RESPONDENT DATE OF CONCLUDING THE HEARING : 01.12. 201 6 DATE OF PRONOUNCING THE ORDER : 2 8 .02.2017 O R D E R PER PRAMOD KUMAR AM: 1. BY W A Y OF TH ESE APPEAL S , THE ASSESSEE APPELLANT HAS CHALLENGED CORRECTNESS OF THE ORDER S DATED 24 TH MARCH 2015 & 20 TH MARCH, 2015 , PASSED BY THE LD. CIT (A) , I N THE MATTER OF ASSESSMENT UNDER SECTION 153A R.W.S. 143(3) OF THE INCOME TAX AT 1961, FOR THE ASSESSMENT YEAR S 2 0 08 - 09 & 2011 - 12 . 2. THE MAIN GRIEVANCE OF THE ASSESSEE , COMMON IN BOTH THE APPEALS , IS AS FOLLOWS : - THE LEARNED COMMISSIONER OF I NCOME T AX (A PPEAL S ) - 11 , AHMEDABAD [ (CIT ( A) ] ERRED ON FACTS AS ALSO IN LAW IN NOT DECIDING THE ADDITIONAL GROUND OF APPEAL RAISE D DURING THE COURSE OF HEARING RELATED TO VALIDITY OF ASSESSMENT. THE INITIATION OF ACTION U/S.153A OF THE INCOME TAX ACT, 1961 [ HEREINAFTER REFE RRED TO AS THE ACT ] IN RESPECT OF COMPLETED ASSESSMENT IN ABSENCE OF ANY INCRIMINATING MATERIALS IS VOID AB INITIO AND BAD IN LAW, ITA NO S . 289 & 290 / RJT/201 5 A.Y S . 20 08 - 09 & 2011 - 12 PAGE 2 OF 4 THEREFORE , THE INITIATION OF ACTION AND ORDER PASSED THERE UNDER MAY KINDLY BE QUASHED. 3. A SEARCH AND SEIZURE OPERATION WAS CARRIED OUT , IN THE CASE OF THE ASSESSEE, ON 08.09.2011 BUT IT IS AN UNDISPUTED POSITION THAT NO INCRIMINATING MATERIAL WAS FOUND . IT IS IN THIS BACKDROP THAT LEARNED COUNSEL FOR THE ASSESSEE HAS MADE FOLLOWING WRITTEN SUBMISSION: - A) SEARCH U/S. 132 OF THE ACT WAS CARRIED OUT ON 08.09.2011 AT THE APPELLANT'S RESIDENCE. DURING THE COURSE OF SEARCH NOTHING INCRIMINATING WAS FOUND. B) SINCE NO MATERIAL WAS FOUND, INITIATION OF ACTION U/S 153A OF THE ACT IS BAD IN LAW. C) FURTHER, THE AO FINALISED TH E PROCEEDING U/S. 153A OF THE ACT BY REVIEWING OR REVISITING THE COMPLETED ASSESSMENTS FINALISED U/S 143(1)/143(3) OF THE ACT WHICH IS AGAINST THE PROVISIONS OF SECTION 153A OF THE ACT. D) THE SECOND PROVISO TO SECTION 153A CONTEMPLATES THAT IF ANY OF THE SIX ASSESSMENTS IS PENDING ON THE DATE OF INITIATION OF THE SEARCH OR REQUISITION, THE SAME SHALL ABATE. THUS, ONLY PENDING ASSESSMENTS AS ON THE DATE OF SEARCH SHALL ABATE. IT IMPLIES THAT COMPLETED ASSESSMENTS EITHER U/S 143(3} OR 143(1) OF THE A CT DOES NOT ABATE AND BECOMES FINAL. E) T HUS THE AO WAS NOT JUSTIFIED IN MAKING DISALLOWANCES IN RESPECT OF COMPLETED ASSESSMENTS. F) IN THIS CONNECTION, RELIANCE IS PLACED ON THE FOLLOWING JUDICIAL PRONOUNCEMENTS: I) JIVANLAL JADAVIJIBH AI JAGANI VS. ACIT, CC - 1, RAJKOT [ITA NOS.291 TO 293/RJT/2015]. COPY ATTACHED AT PAG E 2 TO 6. II) CIT VS. MGF AUTOMOBILES LTD. [2015] 63 TAXMANN.COM 137 (DELHI) II I) CIT VS. KABUL CHAWLA IN [2015] 61 TAXMANN.COM 412 (DELHI) IV) CIT - LL VS. CONTINENTAL WAR EHOUSING CORP. LTD. [2015] 58 TAXMANN.COM 78 V) CIT VS. JAYABEN RATILAL SORATHIA IN TAX APPEAL NO. 914 OF 2012 (GUJ.). VI) ALL CARGO GLOBAL LOGISTICS LTD. VS DCIT, [2012] 23 TAXMANN.COM 103 (MUM). VII) SANJAY AGARWAL VS. DCIT [2014] 47 TAXMANN.COM 210; ITA NO S . 289 & 290 / RJT/201 5 A.Y S . 20 08 - 09 & 2011 - 12 PAGE 3 OF 4 VIII) HON'BLE ITAT AHMEDABAD BENCH 'D' IN THE CASE OF SAUMYA CONSTRUCTION PVT. LTD. VS. ACIT CENTRAL CIRCLE - 1(3), AHMEDABAD IN ITA NO.3/AHD/2014. 4. LEARNED DEPARTMENTAL REPRESENTATIVE RELIES ON THE STAND OF THE AUTHORITIES BELOW AND SUBMITS THAT THERE ARE CONFLICTING VIEWS ON THE ISSUE. 5. HAVING HEARD THE RIVAL CONTENTIONS AND HAVING PERUSED THE MATERIAL ON RECORD, WE SEE NO REASONS TO T AKE ANY OTHER VIEW OF THE MATTER THAN THE VIEW TAKEN BY A CO - ORDINATE BENCH, IN THE CASE OF JIVANLAL JADAVJI B HAI JAG ANI VS ACIT (ITA NOS.291 TO 293/RJT/2015; ORDER DATED 31.12.2015) , WHEREIN THE CO - ORDINATE BENCH HAS OBSERVED AS FOLLOWS : - 3. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BE LOW AS WELL AS THE DECISIONS RELIED UPON BY THE PARTIES. THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT THE ASSESSING OFFICER (AO) HAS NOT PLACED THE ASSESSMENT ON THE BASIS OF ANY MATERIAL FOUND DURING THE COURSE OF SEARCH. THE REVENUE HAS NOT POINTED O UT THAT WHAT MATERIAL WAS FOUND DURING THE COURSE OF SEARCH PROCEEDINGS. IN THE ABSENCE OF ANY INCRIMINATING MATERIAL THE ASSESSMENT FRAMED BY THE AO VIDE ORDER DATED 31/01/2014 U/S.153A R.W.S. 143(3) OF THE ACT CANNOT BE SUSTAINED. IN VIEW OF THE FOLLOWIN G JUDGEMENTS/DECISION OF VARIOUS HON BLE HIGH COURTS/TRIBUNAL: 1. DELHI IN THE CASE OF CIT VS. MGF AUTOMOBILES LTD. [2015] 63 TAXMANN.COM 137 (DELHI) 2. CIT VS. KABUL CHAWLA IN [2015] 61 TAXMANN.COM 414 (DELHI) 3. CIT - II VS. CONTINENTAL WAREHOUSIN G CORP. LTD. [2015] 58 TAXMANN.COM 78 4. CIT VS. JAYABEN RATILAL SORATHIA IN TAX APPEAL NO.914 OF 2012 (GUJ.) 5. HON BLE ITAT AHMEDABAD BENCH D IN THE CASE OF SAUMYA CONSTRUCTION PVT. LTD. VS. ACIT CEN.CIRCLE - 1(3), AHMEDABAD IN ITA NO.3/AHD/2014. 3.1. RESPECTFULLY FOLLOWING THE AFORESAID JUDICIAL PRONOUNCEMENTS, WE HEREBY QUASH THE ASSESSMENT BEING BAD IN LAW. THEREFORE, THE GROUND NO.1 AS RAISED BY WAY OF NOTE IS ALLOWED AND THE OTHER GROUNDS HAVE BECOME ACADEMIC WHICH ARE NOT ADJUDICATED. RESUL TANTLY, ALL THE THREE APPEALS OF THE ASSESSEE ARE ALLOWED. ITA NO S . 289 & 290 / RJT/201 5 A.Y S . 20 08 - 09 & 2011 - 12 PAGE 4 OF 4 6. THE VIEWS SO EXPRESSED BY THE CO - ORDINATE BENCH HAVE NOT BEEN REVERSED BY HON BLE JURISDICTIONAL HIGH COURT. THERE ARE NO BINDING PRECEDENTS, TO THE CONTRARY, BY HON BLE JURISDICTIONAL HIGH C OURT OR BY HON BLE SUPREME COURT. IN THIS VIEW OF THE MATTER, RESPECTFULLY FOLLOWING THE BINDING JUDICIAL PRECEDENTS, WE UPHOLD THE PLEA OF THE ASSESSEE. THE IMPUGNED ASSESSMENT S , THEREFORE, STAND QUASHED. 7. IN THE RESULT, THE APPEAL S ARE ALLOWED IN THE TERMS INDICATED ABOVE. P RONOUNCED IN THE OPEN COURT ON THIS 2 8 TH DAY OF FEBRUARY , 2017 . SD/ - SD/ - MAHAVIR PRASAD PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) AHMEDABAD , THE 28 TH DAY OF FEBRUARY , 201 7 COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL RAJKOT B ENCH, RAJKOT