SHAHEEN BANO KHAN, MUMBAI V. CIT CEN CIR-I, MUMBAI

ITA 3318/MUM/2008

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9054 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 7 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 03-12-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 12-05-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A C TEJPAL
• Keywords: Principle of natural justice
• Section: 153A; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH J BENCH BEFORE SHRI B.R.MITTAL(JUDICIAL MEMBER) AND SHRI RAJENDRA (ACCOUNTANT MEMBER) ITA NO.3318/MUM/2008 ASSESSMENT YEAR: 2003-04 SHAHEEN BANO KHAN, GALA NO.30, KOHINOOR HSG SOCIETY, LINK ROAD, SAKI NAKA, MUMBAI-72 PA NO.AGEFPK 7632 P ACIT, CENT. CIRCLE-12, MUMBAI. (APPELLANT) VS. (RESPONDENT) APPELLANT BY : SHRI JAYANT R BHATT RESPONDENT BY: SHRI A.C.TEJPAL DATE OF HEARING: 3 .12.2012 DATE OF PRONOUNCEMENT: 28.12.2012 ORDER PER B.R.MITTAL, JM: THE ASSESSEE HAS FILED THIS APPEAL FOR ASSESSMENT YEAR 2003-04 AGAINST ORDER DATED 28.3.2008 OF LD CIT, CENTRAL -1, MUMBAI PASSE D U/S.263 OF THE I.T.ACT, 1961 ON FOLLOWING GROUNDS: 1) THE COMMISSIONER OF INCOME TAX CENTRAL -1, MUMB AI HAS GROSSLY ERRED IN CANCELLING THE ASSESSMENT MADE U/S 153A R. W.S. 143 (3) BY THE THEN ACIT, CC-12 BY INVOKING THE PROVISIONS OF SECT ION 263, MERELY ON THE BASIS OF COMPARING THE INCOMPLETE DATA WITH AUD ITED ACCOUNTS AND WITHOUT BRINGING ON RECORD ANY MATERIAL TO SHOW ANY INFIRMITIES IN AUDITED ACCOUNTS. 2) THE CIT CENTRAL-1 HAS ERRED IN NOT APPRECIATING THE FACT THAT THE THEN AO HAD ALREADY COMPARED AND VERIFIED THE DETAILS OF INCOMPLETE DATA WITH THAT OF THE AUDITED ACCOUNTS AND THAT ASSESSMENT WA S COMPLETED ON THE BASIS OF SUCH AUDITED AND COMPLETE ACCOUNTS AND HEN CE THE SAID ORDER COULD NOT BE TREATED AS ERRONEOUS OR FOR THAT MATTE R PREJUDICE TO THE INTEREST OF THE REVENUE AND THEREFORE HIS ACTION OF CANCELLING THE ASSESSMENT U/S 263 SHOULD BE SET ASIDE! STRUCK OFF. 3) THE CIT CENTRAL-L HAS ERRED IN NOT ALLOWING PROP ER OPPORTUNITY TO PRESENT ITS CASE AND TO EXPLAIN THE ALLEGED DIFFERE NCE WHICH WAS ALREADY EXPLAINED BEFORE THE AO AND THEREBY HAS VIOLATED TH E PRINCIPLES OF NATURAL JUSTICE AND AS SUCH HIS ORDER U/S 263 SHOULD BE STR UCK OFF. ITA NO.3318/MUM/2008 ASSESSMENT YEAR: 2003-04 2 4) ON PERUSAL OF THE ORDER IT IS SEEN THAT THE COMM ISSIONER OF INCOME TAX CENTRAL -1, MUMBAI HAS REOPENED THE CASE MERELY ON SUSPICION AND NOT ON THE BASIS OF ANY MATERIAL WHICH COULD LEAD T O ANY BASE TO ASCERTAIN THAT INCOME HAD ESCAPED THE ASSESSMENT. AND THEREFO RE THE ACTION OF THE CIT CENTRAL-I IN INVOKING THE PROVISIONS OF SECTION 263 IS NOT ONLY VIOLATIVE OF JURISPRUDENCE BUT IS ALSO BAD IN LAW AND AS SUCH THE SAME SHOULD BE STRUCK OFF 2. AT THE TIME OF HEARING, LD A.R. CONCEDED THAT SI MILAR ISSUE HAS BEEN CONSIDERED BY THE TRIBUNAL IN OTHER FAMILY MEMBERS OF THE ASSE SSEE AND THE TRIBUNAL BY ITS ORDER DATED 12.9.2012 UPHELD THE ORDER OF LD CIT PASSED U /S.263 OF THE ACT AND, ACCORDINGLY, DECIDED THE ISSUE AGAINST THE ASSESSEE AND IN FAVOU R OF REVENUE. LD A. R ALSO CONCEDED THAT THE FACTS OF THE CASE OF THE ASSESSEE ARE IDEN TICAL AND AS SUCH THE IMPUGNED ORDER OF LD CIT PASSED U/S.263 IS TO BE CONFIRMED. HOWEV ER, LD A.R. FILED A WRITTEN NOTE STATING THAT THE CONTENTS OF THE SAID NOTE BE INCOR PORATED IN THE ORDER TO BE PASSED BY THE TRIBUNAL THOUGH THE GROUNDS OF APPEAL ARE TO BE DECIDED AGAINST ASSESSEE. 3. WE HAVE GONE THROUGH THE IMPUGNED ORDER OF LD CI T, EARLIER ORDER OF THE TRIBUNAL DATED 12.9.2012 AS WELL AS THE BRIEF NOTE FILED BY THE ASSESSEE. 4. WE OBSERVE THAT IN THE BRIEF NOTE, ASSESSEE HAS STATED SAME FACTS WHICH HAVE BEEN CONSIDERED BY THE TRIBUNAL IN ITS ORDER DATED 12.9.2012 IN THE CASE OF OTHER FAMILY MEMBERS OF THE ASSESSEE AND AFTER CONSIDERING THE S AID FACTS, THE TRIBUNAL HAS HELD THAT MAZHARNAMA SIMPLY SHOWS THAT THE SEALED COMPUTER BA CK UP SEIZED FROM THE OFFICE OF THE ASSESSEE AND OTHERS WERE FOUND TO BE INTACT BEF ORE IT WAS OPENED AND LOOK OUT THE COMPUTER BACK UP AND AGAIN SEALED AND SIGNED BEFORE THE WITNESSES PRESENT. THAT MAZHARNAMA DOES NOT INDICATE THAT THE ASSESSING OFF ICER EXAMINED THE DETAILS IN THE COMPUTER BACK UP SEIZED AND SEALED AT THE TIME OF S EARCH AND SEIZURE BUT ONLY IT WAS VERIFIED THAT SEALS WERE INTACT, WHICH WAS OPENED AND IT WAS FOUND AS WORKING AND THEREAFTER AGAIN SEALED AND SIGNED. THUS, THE MAZH ARNAMA ITSELF DOES NOT EXHIBIT THAT THE DETAILS OF DATA CONTAINING IN THE COMPUTER BACK UP WERE EXAMINED OR VERIFIED BY THE ASSESSING OFFICER. THE SAME FACTS HAVE BEEN HIGHLI GHTED BY THE ASSESSEE IN THE NOTE FILED BEFORE US IN STATING THAT MAZHARNAMA SHOULD B E TREATED THAT AO VERIFIED THE AUDITED ACCOUNTS WITH INCOMPLETE DATA AND SEIZED FL OPPIES THOUGH THERE WAS NO MENTION OF SUCH COMPARISON OR VERIFICATION IN THE ASSESSMEN T ORDER PASSED BY HIM. SINCE THE TRIBUNAL HAS ALREADY GIVEN ITS FINDINGS IN THE ORDE R DATED 12.9.2012 (SUPRA) PASSED IN THE CASE OF OTHER FAMILY MEMBERS BY CONCLUDING THA T THERE WAS NO MATERIAL ON RECORD TO ITA NO.3318/MUM/2008 ASSESSMENT YEAR: 2003-04 3 SUGGEST THAT AO APPLIED HIS MIND WHILE PASSING THE ASSESSMENT ORDER IN RESPECT OF ISSUE OF INFLATED EXPENDITURE IN THE FINAL ACCOUNTS IN CO MPARISON TO THE ACCOUNTS FOUND IN THE FLOPPY. HENCE, CONSIDERING THE ORDER OF COORDINATE BENCH ON SIMILAR FACTS AND ON SIMILAR ISSUE, WE DECIDE THE VALIDITY OF REVISION ORDER PAS SED BY LD CIT U/S.263 IN FAVOUR REVENUE AND AGAINST ASSESSEE. HENCE, WE REJECT T HE GROUNDS OF APPEAL TAKEN BY ASSESSEE AND UPHOLD THE ORDER OF LD CIT. 5. IN THE RESULT, APPEAL FILED BY ASSESSEE IS DISMI SSED. PRONOUNCED IN THE OPEN COURT ON 28 TH DECEMBER, 2012 SD/- (RAJENDRA) ACCOUNTANT MEMBER SD/- (B.R. MITTAL) JUDICIAL MEMBER MUMBAI, DATED 28 TH DECEMBER, 2012 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS), CONCERNED 4. COMMISSIONER OF INCOME TAX, 1 , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH J MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI