Appeal details
Counselvise Citation
32120914 RSA 2012
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 23 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
23-08-2013
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
DB
Next Hearing Date
19-08-2013
Assessment Year
2007-2008
Appeal Filed On
30-07-2012
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P. JAIN, ACCOUNTANT MEMBER I.T.A. NO. 321(ASR)/2012 ASSESSMENT YEAR: 2007-08 PAN: AFTPP7339D DEPUTY COMMISSIONER OF VS. CH. RAM PAUL, S/O- SH. KANSHI INCOME-TAX, CIRCLE-1, RAM (DECEASED) AAYAKAR BHAWAN, JAMMU (THROUGH L/H MS DARSHNA DEVI, W/O- LT. SH. RAM PAU L) 54- VILL. RAIPUR SATWARI, JAMMU (APPELLANT) (RESPONDENT) APPELLANT BY: SH. MAHAVIR SINGH, SR. DR RESPONDENT BY: SH. JOGINDER SINGH, CA DATE OF HEARING: 19.08.2013 DATE OF PRONOUNCEMENT: 23.08.2013 ORDER PER BENCH 1) THE REVENUE HAS FILED THE PRESENT APPEAL A GAINST THE IMPUGNED ORDER DATED 01.05.2012 PASSED BY LEARNED C IT(A), JAMMU, FOR THE ASSESSMENT YEAR 2007-08 ON THE FOLLO WING GROUNDS: I. ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. CIT( A) WAS RIGHT IN RELYING UPON THE DECISION OF JURISDICTIONA L I.T.A.T. BENCH AMRITSAR IN THE CASE OF ARUN KUMAR KAPOOR 149 TTJ 249 WHEN THE FACTS OF THE CASE ARE CLEARLY DISTINGU ISHABLE 2 I.T.A. NO. 321(ASR)/2012 ASSESSMENT YEAR: 2007-08 WITH THE FACTS OF THE PRESENT CASE AS NOTICE U/S 14 7 HAS BEEN INITIATED BY THE ASSESSING OFFICER IN THAT CASE AND NO ASSESSMENT PROCEEDINGS WERE PENDING AT THE TIME WHE N THE DOCUMENTS WERE RECEIVED BY THE ASSESSING OFFICER, W HEREAS IN THIS CASE, NOTICE U/S 143(2) OF THE INCOME TAX A CT, 1961 STOOD ALREADY ISSUED TO THE ASSESSEE AND REGULAR AS SESSMENT PROCEEDINGS WERE PENDING. II. ON THE FACTS AND CIRCUMSTANCES THE LD. CIT(A) HAS E RRED IN NOT APPRECIATING THE FACT THAT PROCEEDINGS IN THIS CASE WERE ALREADY INITIATED BEFORE THE INFORMATION WAS RECEIV ED BY THE ASSESSING OFFICER AND THE ASSESSING OFFICER WHO PAS SED THE INFORMATION, DID NOT RECORD HIS SATISFACTION NOR IN DICATE ANY SATISFACTION RECORDED BY ANY BOOKS OF ACCOUNT OR DO CUMENTS OR ASSETS BELONGING TO THE ASSESSEE. III. THE APPLICANT CRAVES TO AMEND OR ADD ANY ONE OR MOR E GROUNDS OF APPEAL. 2) THE BRIEF FACTS RELATING TO THE ISSUE IN DISPUTE , AS NARRATED BY THE REVENUE AUTHORITIES, ARE THAT THE ASSESSEE B Y DECLARING AN INCOME OF RS. 24,91,690/- HAS FILED HIS RETURN OF I NCOME ELECTRONICALLY AND THE SAME HAS BEEN REVISED IMMEDI ATELY ON THE SAME DATE I.E. 25.03.2008 AT AN INCOME OF RS. 31,68 ,970/-. THE CASE WAS PROCESSED UNDER SECTION 143(1) OF THE INCOME-TA X ACT, 1961 (IN SHORT THE ACT) ON 18.03.2008. THE ASSESSEE IS HAVING INCOME FROM CARRIAGE CONTRACT AND FOR THE YEAR UNDER CONSI DERATION HE HAS SHOWN GROSS FREIGHT INCOME OF RS. 1,49,25,198/-. SI NCE, THE TURNOVER OF THE BUSINESS IS MORE THAN THE THRESHOLD LIMITS AS 3 I.T.A. NO. 321(ASR)/2012 ASSESSMENT YEAR: 2007-08 PRESCRIBED UNDER THE ACT, HE WAS REQUIRED TO GET HI S BOOKS OF ACCOUNT AUDITED AS REQUIRED UNDER SECTION 44AB OF A CT AND HE HAS TO FILE HIS RETURN OF INCOME ON OR BEFORE 31.10.200 7, WHICH HE FAILED TO DO SO. ACCORDING TO THE A.O., THE ASSESSEE HAS V IOLATED THE PROVISIONS OF SECTION 44AB OF THE ACT, THEREFORE, P ENALTY PROCEEDINGS UNDER SECTION 27(1)(B) OF THE ACT WERE INITIATED AGAINST THE ASSESSEE. THE CASE OF THE ASSESSEE WAS TAKEN UP FOR SCRUTINY ON THE BASIS OF SELECTION BY CASS AND NOTICE UNDER SEC TION 143(2) OF THE ACT WAS ISSUED ON 24.09.2008, FIXING THE CASE O N 30.09.2008. IN RESPONSE TO THE SAME, NONE ATTENDED NOR ANY WRITTEN SUBMISSION WAS FILED BY THE ASSESSEE ON THE SAID DATE. THEREFORE, ANOTHER NOTICE UNDER SECTION 142(1) OF THE ACT WAS ISSUED ALONGWIT H A LETTER ON 20.11.2008, FIXING THE CASE FOR HEARING ON 07.12.20 08. THROUGH THE SAID LETTER, THE ASSESSEE WAS INFORMED THAT ASSESSM ENT IS GOING TO BE BARRED BY TIME LIMITATION ON 31.12.2009. AGAIN THE ASSESSEE FAILED TO COMPLY WITH THE REQUIREMENTS OF THIS STATUTORY N OTICE AND NO INFORMATION OR ANY WRITTEN SUBMISSION WAS FILED BY HIM. AGAIN AN OPPORTUNITY WAS AFFORDED TO THE ASSESSEE FIRM TO PR ESENT HIS CASE BY ISSUING A NOTICE UNDER SECTION 142(1) OF THE ACT AL ONGWITH A LETTER BUT NONE ATTENDED ON THE SAID DATE NOR ANY WRITTEN REPLY WAS FILED 4 I.T.A. NO. 321(ASR)/2012 ASSESSMENT YEAR: 2007-08 BY THE ASSESSEE. THE A.O. CLEARLY STATED IN THE SAI D LETTER THAT FAILURE TO COMPLY WITH THE NOTICES SHALL MADE THE ASSESSEE LIABLE FOR LEVY OF PENALTY UNDER SECTION 271(1)(B) OF THE ACT, AND THE NON-COOPERATIVE ATTITUDE ON THE ASSESSEES PART WILL CONSTRAIN THE ASSESSING OFFICER TO COMPLETE THE ASSESSMENT EX-PARTE UNDER SECTION 1 44 OF THE ACT, BASED ON THE FACTS/INFORMATIONS AVAILABLE ON RECORD . AS THE ASSESSEE HAS FAILED TO COMPLY WITH THE TERMS OF NOTICES ISSU ED UNDER THE INCOME TAX ACT, 1961 FROM TIME TO TIME, AT LAST, TH E ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS UNDER SECTION 271(1)(B) OF THE ACT. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT UNDER SECTION 144 OF THE ACT ON 30.12.2009 AND ADDED RS. 16,72,80 0/- TO THE RETURNED INCOME OF THE ASSESSEE. 3) AGGRIEVED BY THE ASSESSMENT ORDER DATED 30.12.20 09, THE ASSESSEE FILED AN APPEAL BEFORE LEARNED FIRST APPEL LATE AUTHORITY WHO VIDE IMPUGNED ORDER DATED 01.05.2012, ALLOWED T HE APPEAL OF THE ASSESSEE. NOW, THE REVENUE BEING AGGRIEVED BY T HE IMPUGNED ORDER, FILED THE PRESENT APPEAL. 4) AT THE TIME OF HEARING, SH. MAHAVIR SINGH, SR. DR, HAS RELIED UPON THE ORDER PASSED BY THE ASSESSING OFFIC ER AND CONTENTIONS RAISED IN THE GROUNDS OF APPEAL. 5 I.T.A. NO. 321(ASR)/2012 ASSESSMENT YEAR: 2007-08 4) AT THE TIME OF HEARING, SH. MAHAVIR SINGH, SR. DR, HAS RELIED UPON THE ORDER PASSED BY THE ASSESSING OFFIC ER AND CONTENTIONS RAISED IN THE GROUNDS OF APPEAL. 5) LEARNED COUNSEL FOR THE ASSESSEE STATED THAT THE ISSUE IN DISPUTE HAS ALREADY BEEN DECIDED IN FAVOUR OF THE A SSESSEE BY THIS BENCH IN THE CASE OF INCOME TAX OFFICER VS. ARUN KU MAR KAPOOR REPORTED IN (2011) 140 TTJ (ASR) 249. HE FURTHER ST ATED THAT THE LEARNED FIRST APPELLATE AUTHORITY HAS DECIDED THE L EGAL ISSUE IN FAVOUR OF THE ASSESSEE BY RESPECTFULLY FOLLOWING TH E ORDER OF THIS BENCH IN THE CASE OF ARUN KUMAR KAPOOR (SUPRA). THE REFORE, HE REQUESTED THAT THE APPEAL FILED BY THE REVENUE MAY BE DISMISSED. 6) WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORDS AVAILABLE WITH US, ESPECIALLY THE WRITTEN S UBMISSION AS WELL AS THE IMPUGNED ORDER PASSED BY LEARNED FIRST APPEL LATE AUTHORITY AND THE ORDER OF THIS BENCH I.E. INCOME TAX OFFICER VS. ARUN KUMAR KAPOOR REPORTED IN (2011) 140 TTJ (ASR) 249. FOR THE SAKE OF CONVENIENCE, THE RELEVANT FINDINGS GIVEN BY LEAR NED FIRST APPELLATE AUTHORITY IN THE IMPUGNED ORDER IN PARAS 4 TO 4(C) AND 5 TO 5(A) (PAGES 7 TO 10) ARE REPRODUCED AS UNDER: 6 I.T.A. NO. 321(ASR)/2012 ASSESSMENT YEAR: 2007-08 4. I HAVE CAREFULLY CONSIDERED THE ASSESSMENT ORD ER, WRITTEN SUBMISSION AND THE MATERIAL ON RECORDS. FIRST, THE LEGAL GROUNDS ARE TAKEN UP FOR DISPOSAL. AS FOR AS THE ADDITIONAL GRO UND TAKEN IS CONCERNED IT IS FOUND THAT IT IS ABSOLUTELY RELEVAN T TO THE ISSUE IN QUESTION. IT ALSO NEEDS NO FURTHER INVESTIGATING IN TO FACTS FOR ITS DECISION. THIS IS ALSO PURELY LEGAL IN NATURE. HENC E, CONSIDERING ALL THESE FACTORS IS ADMITTED FOR ADJUDICATION. 4A. THE FACTS ARE UNDISPUTED THAT A SEARCH WAS CO NDUCTED ON ONE CHOUDHARY NAGAR SINGH, RELEVANT TO A.Y. 2007-08 AND AN AGREEMENT TO SELL, FOR PURCHASE OF 37 KANALS OF LAN D WAS FOUND AND AS PER THOSE DOCUMENTS CHOUDARY NAGAR SINGH, CHOUDA RY JUGTAR SINGH, CHOUDHARY RAKESH KUMAR, CHOUDHARY RAMPAL (AS SESSEE) WERE HOLDING RESPECTIVE SHARES AS UNDER: 1. CH. NAGAR SINGH, 40% 2. CH. JAGAR SINGH 40% 3. CH. RAM PAUL 10% 4. CH. RAKESH KUMAR 10% 4B. THE INFORMATION REGARDING THE TRANSACTION WAS RECEIVED DURING THE PENDENCY OF ASSESSMENT. IT IS ALSO UNDIS PUTED THAT THE ASSESSEE IN HIS REVISED RETURN OF INCOME HAD INCLUD ED AN AMOUNT OF RS. 28,00,000 AS DISCLOSED U/S 132(4) OF I.T. ACT. SECTION 153C OF I.T. ACT READS AS UNDER: 1) NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139 S ECTION 147, SECTION 148 SECTION 149 SECTION 151 AND SECTION 153 WHERE THE ASSESSING OFFICER IS SATISFIED THAT ANY MONEY, BULL ION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT OR DO CUMENTS SEIZED OR REQUISITIONED BELONGS OR BELONG TO A PERSON OTHER T HAN THE PERSON REFERRED TO IN SECTION 153A, THEN THE BOOKS OF ACCO UNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON AND ISSUE SUCH OTHER PERSON NOTICE AND ASSESS OR REASSESS INCOME OF SUCH OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A:] PROVIDED THAT IN CASE OF SUCH OTHER PERSON, THE REF ERENCE TO THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR MAKIN G OF REQUISITION UNDER SECTION 132A IN THE SECOND PROVISO TO 50 [SUB -SECTION (1) OF] SECTION 153A SHALL BE CONSTRUED AS REFERENCE TO THE DATE OF RECEIVING 7 I.T.A. NO. 321(ASR)/2012 ASSESSMENT YEAR: 2007-08 THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON. 4C. AND, THE SECOND PROVISO TO SECTION 153A OF I.T . ACT READS AS UNDER: PROVIDED FURTHER THAT ASSESSMENT OR REASSESSMENT, IF ANY, RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SI X ASSESSMENT YEARS REFERRED TO IN THIS 72[SUB-SECTION] PENDING ON THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR MAKING OF REQUISITI ON UNDER SECTION 132A, AS THE CASE MAY BE, SHALL ABATE 5. IN VIEW OF THE LEGAL POSITION AS ABOVE AND THE CASE LAWS AS CITED BY ASSESSEES REPRESENTATIVE AS IN M/S JIN DAL STAINLESS LTD. 122 TTJ(DEL) 902 AND IN MAINSH MAHESHWARI 208 CTR ( S.C.) 97 THE ASSESSMENT IN NOT VALID. IN THE CASE OF MAINSH MAHESHWARI HON'BLE S.C. HAS DELIVERED THE JUDGMENT IN RESPECT OF ERSTWHILE SECTION 158 BD OF I.T. ACT WHICH WERE SIMILAR TO PR ESENT SECTION 153C OF I.T. ACT. ALSO, THE JURISDICTIONAL HON'BLE I.T.A.T. IN CASE OF ARUN KUMAR KAPOOR 140 TTJ(AMRITSAR) 149 HAS ALSO HE LD SIMILAR THAT: ON A PERUSAL OF THE ABOVE PROVISIONS, IT WOULD BE CLEAR THAT THE PROVISIONS OF SECTION 153C OF THE ACT WERE APPLICAB LE, WHICH SUPERSEDES THE APPLICABILITY OF PROVISIONS OF SECTI ONS 147 AND 148 OF THE ACT. AS WE HAVE ALREADY NOTED HEREINABOVE TH AT THE DOCUMENTS WERE SEIZED DURING THE SEARCH UNDER SECTI ON 132 OF THE ACT AND THE SAME WAS SENT TO THE ASSESSEE'S A.O. AT AMRITSAR BY THE OFFICER AT DELHI. IN OUR VIEW, THE LEARNED CIT( A) HAS CORRECTLY OBSERVED THAT ONLY THE PROVISIONS IN WHICH ANY ASSE SSMENT COULD BE MADE AGAINST THE ASSESSEE IN THE INCOME TAX ACT WAS SECTION 153C READ WITH SECTION 153 OF THE ACT. IT IS ALSO A PPARENT FROM THE RECORD THAT THE OFFICER AT DELHI HAS MENTIONED IN H IS LETTER THAT THE NECESSARY ACTION MAY BE TAKEN AS PER LAW UNDER SECTION 153C/148 OF THE ACT. HENCE, NOTICE ISSUED UNDER SEC TION 148 OF THE ACT AND PROCEEDINGS UNDER SECTION 147 OF THE AC T BY THE AO ARE ILLEGAL AND VOID AB INITIO. IN VIEW OF THE PROV ISIONS OF SECTION 153C OF THE ACT, SECTION 147/148 STAND OUSTED. IN T HE INSTANT CASE, THE PROCEDURE LAID DOWN UNDER SECTION 153C HAS NOT BEEN FOLLOWED BY THE A.O. AND, THEREFORE, ASSESSMENT HAS BECOME INVALID. WE ALSO OBSERVE THAT THE CIT(A) WAS JUSTIF IED IN FOLLOWING THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF 8 I.T.A. NO. 321(ASR)/2012 ASSESSMENT YEAR: 2007-08 MANISH MAHESHWARI VS. ACIT AND ANOTHER, REPORTED IN (2007) 289 ITR 341, WHEREIN IT HAS BEEN HELD THAT IF THE P ROCEDURE LAID DOWN IN SECTION 158BD IS NOT FOLLOWED, BLOCK ASSESS MENT PROCEEDINGS WOULD BE ILLEGAL. THE CIT(A) HAS CORREC TLY OBSERVED THAT THE PROVISIONS OF SECTION 153C ARE EXACTLY SIM ILAR TO THE PROVISIONS OF SECTION 158BD OF THE ACT IN BLOCK ASS ESSMENT PROCEEDINGS. THUS, CONSIDERING THE ENTIRE FACTS AND THE CIRCUMSTANCES OF THE PRESENT CASE, WE HOLD THAT THE CIT(A) WAS FULLY JUSTIFIED IN QUASHING THE REASSESSMENT ORDER. WE ALSO DO NOT FIND ANY MERIT IN THE SUBMISSIONS OF THE LEARNED DR THAT DURING THE COURSE OF SEARCH, IT WAS FOUND AT PREMISES OF M /S.TODAY HOMES & INFRASTRUCTURE PVT. LTD. PERTAINING TO M/S. P.R. INFRASTRUCTURE LTD. AND NOT THE ASSESSEE. IN THIS R EGARD, WE MAY POINT OUT THAT THE CONTENTION RAISED BY THE LEARNED D.R. IS FACTUALLY INCORRECT 11AND CONTRARY TO THE AVAILABLE RECORDS OF SEIZED DOCUMENTS SPECIFICALLY MENTIONED IN THE ASSE SSMENT ORDER DATED 30-12-2008. IN VIEW OF THE ABOVE FACTUAL DISC USSION, WE DO NOT FIND ANY MERIT AND SUBSTANCE IN THE CONTENTION OF THE LEARNED D.R. THEREFORE, WE UPHOLD THE ORDER OF THE CIT(A) A ND DISMISS THE GROUND NOS.1 TO 4 OF THE APPEAL . 5A. IN THE PRESENT CASE THE INFORMATION WAS RECORD ED BY THE A.O. ON 06.05.2009 RELEVANT TO THE A.Y. 2010-11. IN VIEW OF PROVISO TO SECTION 153(1) THE DATE OF INITIATION OF SEARCH WAS 06.05.09 AND READ WITH SECTION 153A(1)(B) OF I.T. A CT THE IMMEDIATE PRECEDING 6 A.YS WOULD BE A.Y. 04-05 TO A .Y. 09-10. FURTHER, IN VIEW OF SECOND PROVISO TO 153A(1)(B) I. T. ACT ASSESSMENT OR REASSESSMENT RELATING TO PERIODS FALL ING BETWEEN 04-05 TO 09-10 WOULD ABATE. CONSIDERING THE ABOVE A ND RELYING ON THE DECISION OF JURISDICTIONAL HON'BLE I.T.A.T., AMRITSAR IN CASE OF ARUN KUMAR KAPOOR 146 TTJ(AMRITSAR) 249, I HEREBY QUASH THE ASSESSMENT SO MADE. 7) KEEPING IN VIEW THE AFORESAID DISCUSSION, WE ARE OF THE VIEW THAT THE LEARNED FIRST APPELLATE AUTHORITY HAS RIGHTLY QUASHED THE ASSESSMENT IN DISPUTE BY RESPECTFULLY FOLLOWING THE DECISION OF THIS BENCH IN THE CASE OF ARUN KUMAR KAPOOR (SUPRA) . AS SUCH, NO 9 I.T.A. NO. 321(ASR)/2012 ASSESSMENT YEAR: 2007-08 INTERFERENCE IS CALLED FOR IN THE WELL REASONED ORD ER PASSED BY THE LEARNED FIRST APPELLATE AUTHORITY. ACCORDINGLY, WE DISMISS THE APPEAL FILED BY THE REVENUE AND UPHOLD THE IMPUGNED ORDER DATED 01.05.2012 PASSED BY LEARNED CIT(A), JAMMU. 8) IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD AUGUST, 2013 SD/./- SD/./- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 23 RD AUGUST, 2013 /RK/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: CH. RAM PAUL, S/O- KANSHI RAM(DECEASE D) (THROUGH L/H MS DARSHNA DEVI, W/O- LT. SH. RAM PAUL) 54- VI LL. RAIPUR SATWARI, JAMMU 2. THE DCIT, CIRCLE-I, JAMMU 3. THE CIT(A), JAMMU 4. THE CIT, JAMMU 5. THE SR DR, I.T.A.T., ASR TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.
Mehul