VINAY RAMAKANT SAPTE, MUMBAI V. DCIT CEN CIR 40, MUMBAI

ITA 3287/MUM/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6729 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 8 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2006-2007
• Appeal Filed On: 10-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POOJA SHAH
• Assessee Lawyers: K P KAPARIA
• Keywords: Unexplained cash credit; Search and seizure
• Section: 153A; 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'D' BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, AM AND SHRI RAVISH SOOD, JM ITA NOS. 3826, 3827, 3828 & 3829/MUM/2016 (ASSESSMENT YEARS: 2006 - 07, 2007 - 08, 2008 - 09 & 2009 - 10) DCIT, CC - 7(1), ROOM NO. 653, 6TH FLOOR, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI - 20 PAN/GIR NO. AADPS 6169 H VS. SHRI VINAY RAMAKANT SAPTE 61/62, TOWER A, KALPATARU RESIDENCY, OPP. CINE PLANET, SION (E), MURNBAI - 400 02 ( REVENUE ) : ( ASSESSEE ) ITA NOS. 3287, 3432 & 3433/MUM/2016 (ASSESSMENT YEARS: 2006 - 07, 2007 - 08 & 2009 - 10) AND CROSS OBJECTION NO.36/MUM/2019 (ARISING OUT OF ITA NO. 3828/MUM/2016) (ASSESSMENT YEAR : 2008 - 09) SHRI VINAY RAMAKANT SAPTE 61/62, TOWER A, KALPATARU RESIDENCY, OPP. CINE PLANET, SION (E), MURNBAI - 400 02 VS. DCIT, CC - 7(1), ROOM NO. 653, 6TH FLOOR, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI - 20 ( APPELLANT ) : ( RESPONDENT ) APPELLANT BY : SHRI K. P. KAPARIA RESPONDENT BY : MS. POOJA SHAH DATE OF HEARING : 01.11.2018 DATE OF PRONOUNCEMENT : 22.01 .2019 ORDER PER BENCH: THESE ARE APPEALS BY THE REVENUE FOR ASSESSMENT YEARS (A.YS.) 2006 - 07 TO 2009 - 10 AND THE CROSS APPEALS BY THE ASSESSEE FOR A.YS. 2006 - 07, 2007 - 08 AND 2009 - 10 AND CROSS OBJECTION BY THE ASSESSEE FOR A.Y. 2008 - 09 ARISING OUT OF THE RESPECTIVE ORDERS OF THE LD. CIT(A) FOR THE CONCERNED ASSESSMENT YEAR. 2 ITA NOS. 3826, 3827, 3828 & 3829 AND 3287, 3432 & 3433/MUM/2016 CO NO.36/MUM/2019 2. THE ASSESSEE HAS ALSO FILED THE ADDITIONAL GROUND OF THE APPEAL AND RAISED A CROSS OBJECTION FOR THE A.Y. 2008 - 09. 3. IN THE ADDITIONAL GROUND AND THE CROSS OBJECTION , THE ISSUE RAISED IS THAT NO INCRIMIN ATI NG MATERIAL WAS FOUND DURING THE COURSE OF SEARCH. HENCE, IT HAS BEEN SUBMITTED THAT NONE OF THE ADDITION IS BASED ON THE INCRIMINATING MATERIAL. HENCE, THE ASSESSEE HAS PLEADED THAT IN VIEW OF THE JUDGMENT OF ITAT, MUMBAI SPECIAL BENCH IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD. VS. DY. CIT [2012] 137 1TD 287 (SB) WHICH WAS FURTHER CONFIRMED BY THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. CONTINENTAL WAREHOUSING CORPORATION [2015] 374 ITR 645 (BORN) THE ADDITIONS CANNOT BE SUSTAINED. HENCE, THE ASSESSEE HAS PLEADED THAT SINCE THE ABOVE IS PURELY THE LEGAL GROUND, THE SAME MAY BE ADMITTED AND ADJUDICATED. 4. UPON HEARING BOTH THE COUNSEL AND PERUSING THE RECORDS, ON THE TOUCH STONE OF THE HON'BLE APEX COURT DECISION IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. VS CIT, [1998] 229 1TR 383 (SC), WE ADMIT THE AFORESAID ADDITIONAL GROUND. SINCE THE ADDITIONALGROUND GOES TO THE ROOT OF THE MATTER, WE ARE ADJUDICATING THE SAME. 5. WE FIND THAT IN A.Y. 2006 - 07 THE RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 31.03.200 7 DECLARING TOTAL INCOME OF RS. 1,08,07,000/ - . P URSUANT TO SEARCH AND SEIZURE ACTION IN THE MANISH GROUP OF COMPANIES , NOTICE WAS ISSUED U/S. 153A OF THE INC OME TAX ACT , 1961. I N RESPONSE TO THE NOTICE ISSUED U/S. 153A, THE ASSESSEE FILED RETURN OF INCOME AGAIN DECLARING TOTAL INCOME OF RS.1,08,07,000/ - . THE ADDITIONS MADE BY THE A.O. HAVE ALL BEEN BASED UPON THE COMPUTATION OF THE INCOME ALREADY GIVEN BY THE ASSESSEE. THIS RELATED TO THE ADDITION/DISALLOWANCE ON: 3 ITA NOS. 3826, 3827, 3828 & 3829 AND 3287, 3432 & 3433/MUM/2016 CO NO.36/MUM/2019 1. LOWER WITHDRAWAL 2. UNEXPLAINED CASH CREDIT 3. LTCG ON SALE OF SHARES 4. INTEREST EXPENSES 5. DISALLOWANCE U/S. 14A 6. SIMILAR FACTS PREVAILED IN THE OTHER THREE ASSESSMENT YEARS. THE ASSESSEE HAS ALREADY FILED THE RETURN OF INCOME ORIGINALLY AND SUBSEQUENT TO THIS NOTICE U/S.153A SAME INCOME WAS RETURNED. S AID DISALLOWANCES AND ADDITIONS MADE BY THE A.O. WERE ALL FROM THE COMPUTATION OF THE INCOME AND THE INCOME TAX RETURN WITH NO REFERENCE WHATSOEVER OF ANY INCRIMINATING MATERIAL FOUND WITH RESPECT TO THE ADDITION. HENCE, IT IS A MPLY CLEAR THAT NONE OF THE ADDITION IS BASED UPON THE INCRIMINATING MATERIAL FOUND DURING SEARCH. 7. IN THIS REGARD, THE ASSESSEE HAS PLACED RELIANCE UPON THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CONTINENTAL WAREHOUSING CORPORATION (SUPRA). IN THE SAID CASE, THE HON'BLE JURISDICTIONAL HIGH COURT HAS EXPOUNDED THAT IN CASE OF ASSESSMENT PURSUANT TO SEARCH U/S. 153A, IN CASE OF UN ABATED ASSESSMENTS, NO ADDITION DE HORS INCRIMINA TING MATERIAL CAN BE DONE. THIS VIEW WAS ALSO UPHELD BY THE HON'BLE APEX COURT DECISION IN THE CASE OF CIT VS. SINHGAD TECHNICAL EDUCATION SOCIETY (IN CIVIL APPEAL NO. 11080 OF 2017 AND OTHERS VIDE ORDER DATED 29.08.2017). 8. THE ID. DEPARTMENTAL REPRESENTATIVE (ID. DR FOR SHORT) COULD NOT DISPUTE THE PROPOSITION THAT ADDITIONS IN THESE CASES HAVE NOT BEEN DONE ON THE BASIS OF ANY INCRIMINATING MATERIAL FOUND DURING SEARCH. HENCE, IN THE BACKGROUND OF THE AFORESAID DISCUSSION AND PRECEDENT, WE QUAS H THE ASSESSMENT ORDER PASSED IN ALL THE ABOVE YEARS INASMUCH AS THE ADDITIONS ARE NOT BASED UPON ANY INCRIMINATING MATERIAL FOUND DURING SEARCH AND THESE WERE THE CASES OF UNABATED ASSESSMENTS, AS NO ASSESSMENT WAS PENDING ON THE DATE OF SEARCH. 9. SINCE THE ASSESSMENT HAS BEEN QUASHED/SET ASIDE ON THE JURISDICTIONAL ISSUE ITSELF, THE 4 ITA NOS. 3826, 3827, 3828 & 3829 AND 3287, 3432 & 3433/MUM/2016 CO NO.36/MUM/2019 VARIOUS GROUNDS RAISED IN THE APPEALS BY THE ASSESSEE AND THE REVENUE ARE ONLY OF ACADEMIC INTEREST. HENCE, WE ARE NOT ENGAGING INTO THE SAME. 10. IN THE RESULT, THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IN ASSESSEES APPEALS AND THE CROSS OBJECTION BY THE ASSESSEE ARE ALLOWED AND CONSEQUENTLY ALL THE OTHER ISSUE IN THE APPEALS ARE DISMISSED AS INFRUCTRUOS. ORDER PRONOUNCED IN THE OPEN COURT ON 2 2 . 0 1 . 2 0 1 9 S D / - S D / - ( RAVISH SOOD ) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 2 2 . 0 1 . 2 0 1 9 ROSHANI , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT - CONCERNED 5. DR, ITAT, MUMBAI 6. GUARD FILE BY ORDER, (DY./ASSTT. REGISTRAR) ITAT, MUMBAI