M/s. Avichal Buildcon Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 3036/DEL/2014

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6854 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 18-01-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 16-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVI JAIN
• Assessee Lawyers: SATYAJEET S
• Keywords: Search and seizure
• Section: 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH A AA A : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT AND AND AND AND SHRI KULDIP SINGH SHRI KULDIP SINGH SHRI KULDIP SINGH SHRI KULDIP SINGH, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA NO ITA NO ITA NO ITA NO S SS S . .. . 3036/DEL/2014, 3037/DEL/2014, 3038/DEL/2014 & 3039/ DEL/2014 3036/DEL/2014, 3037/DEL/2014, 3038/DEL/2014 & 3039/ DEL/2014 3036/DEL/2014, 3037/DEL/2014, 3038/DEL/2014 & 3039/ DEL/2014 3036/DEL/2014, 3037/DEL/2014, 3038/DEL/2014 & 3039/ DEL/2014 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR S SS S : : : : 2007 2007 2007 2007 - -- - 08, 2008 08, 2008 08, 2008 08, 2008 - -- - 09, 200 09, 200 09, 200 09, 200 9 99 9 - -- - 10 & 2010 10 & 2010 10 & 2010 10 & 2010 - -- - 11 1111 11 M/S AVICHAL BUILDCON PVT.LTD., M/S AVICHAL BUILDCON PVT.LTD., M/S AVICHAL BUILDCON PVT.LTD., M/S AVICHAL BUILDCON PVT.LTD., 1711, S.P. MUKHERJEE MARG, 1711, S.P. MUKHERJEE MARG, 1711, S.P. MUKHERJEE MARG, 1711, S.P. MUKHERJEE MARG, DELHI. DELHI. DELHI. DELHI. PAN : AAFCA6846A. PAN : AAFCA6846A. PAN : AAFCA6846A. PAN : AAFCA6846A. VS. VS. VS. VS. DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -4, 4,4, 4, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R.S. SINGHVI AND SHRI SATYAJEET, ADVOCATES. RESPONDENT BY : SHRI RAVI JAIN, CIT - DR. DATE OF HEARING : 18.01.2017 18.01.2017 18.01.2017 18.01.2017 DATE OF PRONOUNCEMENT : 31.01.2017 31.01.2017 31.01.2017 31.01.2017 ORDER ORDER ORDER ORDER PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP : :: :- -- - THESE APPEALS BY THE ASSESSEE FOR THE ASSESSMENT Y EARS 2007- 08, 2008-09, 2009-10 & 2010-11 ARE DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-XXXIII, NEW DELHI DATED 23 RD JANUARY, 2014. 2. THE FIRST COMMON GROUND RAISED BY THE ASSESSEE I N ALL THESE APPEALS READS AS UNDER :- THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN AS SUMING JURISDICTION U/S 153A MORE SO WHEN THERE WAS NO SEA RCH U/S 132 OF THE INCOME TAX ACT, 1961, ON THE APPELLANT. 3. AT THE TIME OF HEARING BEFORE US, THE LEARNED CO UNSEL MADE A CATEGORICAL STATEMENT THAT NO SEARCH PROCEEDINGS HA VE TAKEN PLACE AT THE PREMISES OF THE ASSESSEE. THERE WAS NO SEARCH WARRANT IN THE CASE OF THE ASSESSEE, NO PANCHNAMAS WERE DRAWN AND, THER EFORE, ITA-3036 TO 3039/D/2014 2 PROCEEDINGS U/S 153A ARE VOID. HE ALSO REFERRED TO THE ASSESSMENT ORDER AND POINTED OUT THAT THE ASSESSING OFFICER HA S MENTIONED THAT SEARCH AND SEIZURE OPERATION U/S 132 WAS CARRIED OU T IN M/S DHARAMPAL SATYAPAL GROUP OF CASES. THERE IS NO MENTION BY TH E ASSESSING OFFICER THAT THE SEARCH OPERATION WAS CARRIED OUT IN THE CA SE OF THE ASSESSEE. LEARNED CIT-DR WANTED SOME TIME TO VERIFY THIS POSI TION. HOWEVER, BOTH THE PARTIES AGREED THAT THESE APPEALS CAN BE T REATED AS HEARD AND NO ORDER WOULD BE PRONOUNCED FOR A PERIOD OF TE N DAYS. IN THE MEANWHILE, IF THE REVENUE PRODUCES ANY EVIDENCE OF SEARCH AT ASSESSEES PLACE, THE CASES WOULD BE REFIXED FOR HE ARING ON MERITS. 4. AFTER THE LAPSE OF TEN DAYS, NO EVIDENCE IS PROD UCED BY THE REVENUE FOR SEARCH AT THE ASSESSEES BUSINESS PREMI SES. THEREFORE, WE PROCEED WITH THE PRESUMPTION THAT NO SEARCH HAS TAKEN PLACE VIS-A- VIS THE PRESENT ASSESSEE IS CONCERNED. SECTION 153 A READS AS UNDER :- 153A. ASSESSMENT IN CASE OF SEARCH OR REQUISITION. 153A. ASSESSMENT IN CASE OF SEARCH OR REQUISITION. 153A. ASSESSMENT IN CASE OF SEARCH OR REQUISITION. 153A. ASSESSMENT IN CASE OF SEARCH OR REQUISITION. - -- - (1) NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECT ION 153, IN THE CASE OF A PERSON WHERE A SEARCH IS INITIATED UNDER SECTION 132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UNDER SECTION 132A AFTER T HE 31ST DAY OF MAY, 2003, THE ASSESSING OFFICER SHALL 5. THUS, SECTION 153A WOULD BE APPLICABLE IN THE CA SE OF THE ASSESSEE WHERE A SEARCH IS INITIATED U/S 132 OR BOO KS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSET ARE REQUISITIONED U/S 132A. THE REVENUE HAS NOT BEEN ABLE TO POINT OUT THAT EITHER THE SEARCH H AS TAKEN PLACE AT THE PREMISES OF THE ASSESSEE OR BOOKS OF ACCOUNT OR DOC UMENT OR ANY OTHER ASSET ARE REQUISITIONED U/S 132A IN THE CASE OF THE ASSESSEE. MERELY BECAUSE THE SEARCH HAS TAKEN PLACE IN THE OT HER GROUP COMPANIES WOULD NOT BE A GROUND FOR TAKING ACTION U /S 153A IN THE CASE OF THE ASSESSEE. FOR THE PURPOSE OF TAKING RE COURSE TO SECTION 153A, SEARCH U/S 132 OR REQUISITION OF DOCUMENT/ASS ET U/S 132A IN THE CASE OF THE ASSESSEE IS AN ESSENTIAL CONDITION. SI NCE THE SAME IS NOT ITA-3036 TO 3039/D/2014 3 FULFILLED, WE QUASH THE INITIATION OF PROCEEDINGS U /S 153A AND CONSEQUENTIALLY, THE RESULTANT ASSESSMENT ORDERS AR E ALSO QUASHED. 6. BEFORE WE PART WITH THIS MATTER, WE MAY MENTION THAT EVEN IF LATER ON THE REVENUE IS ABLE TO FIND THAT SEARCH HA D ACTUALLY TAKEN PLACE AT THE ASSESSEES PREMISES, THEY WOULD BE AT LIBERTY TO FILE THE APPLICATION FOR RECALLING THE ORDER IN ACCORDANCE W ITH LAW BY PRODUCING NECESSARY EVIDENCE OF SEARCH HAVING TAKEN PLACE AT THE PREMISES OF THE ASSESSEE. WITH THESE OBSERVATIONS, THE APPEALS OF THE ASSESSEE ARE ALLOWED AS ABOVE. 7. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE A RE ALLOWED AS ABOVE. DECISION PRONOUNCED IN THE OPEN COURT ON 31.01.2017 . SD/- SD/- (KULDIP SINGH (KULDIP SINGH (KULDIP SINGH (KULDIP SINGH ) )) ) ( (( ( G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL ) )) ) JUDICIAL M JUDICIAL M JUDICIAL M JUDICIAL M EMBER EMBER EMBER EMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VK. COPY FORWARDED TO: - 1. APPELLANT : M/S AVICHAL BUILDCON PVT.LTD., M/S AVICHAL BUILDCON PVT.LTD., M/S AVICHAL BUILDCON PVT.LTD., M/S AVICHAL BUILDCON PVT.LTD., 1711, S.P. MUKHERJEE MARG, DELHI. 1711, S.P. MUKHERJEE MARG, DELHI. 1711, S.P. MUKHERJEE MARG, DELHI. 1711, S.P. MUKHERJEE MARG, DELHI. 2. RESPONDENT : DEPUTY COMMISSIONER OF INCOME TAX, DEPUTY COMMISSIONER OF INCOME TAX, DEPUTY COMMISSIONER OF INCOME TAX, DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -4, NEW DELHI. 4, NEW DELHI. 4, NEW DELHI. 4, NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR