Late Sh. Hasti RamMeghwal, JODHPUR V. ITO, JODHPUR

ITA 349/JODH/2010

• Counselvise Citation: 34923314 RSA 2010
• Duration Of Justice: 2 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 24-07-2012
• Assessment Year: 2002-2003
• Appeal Filed On: 19-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G R KOKANI
• Assessee Lawyers: O P MAHESHWARI
• Keywords: Document seized; Opportunity of being heard; Documents seized
• Section: 143(3); 153A; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI R.K.GUPTA, JUDICIAL MEMBER AND SHRI N.K.SAINI, ACCOUNTANT MEMBER ITA NOS. 345 & 349/JU/2010 ASSESSMENT YEARS: 1999-2000 & 2002-03 LATE SHRI HASTI RAM MEGHWAL, VS. THE ITO, WARD-3(2) , THROUGH SMT. SHANTI DEVI, JODHPUR (ONE OF THE LEGAL HEIR) JODHPUR PAN NO. ADDPC5099D ITA NO 346/JU/2010 ASSESSMENT YEAR: 2002-03 SMT. PUNNI DEVI, VS. THE ITO, WARD-3(2), VILLAGE PAL , JODHPUR JODHPUR PAN NO. ADDPC5099D ITA NO 347/JU/2010 ASSESSMENT YEAR: 2002-03 LATE SHRI HIMTA RAM MEGHWAL, VS. THE ITO, WARD-3(2) , THROUGH SMT. PUNNI DEVI, JODHPUR (ONE OF THE LEGAL HEIR) VILLAGE PAL, JODHPUR PAN NO. ADDPC5099D ITA NO 348/JU/2010 ASSESSMENT YEAR: 2002-03 LATE SHRI HUKMA RAM MEGHWAL, VS. THE ITO, WARD-3(2) , THROUGH SMT. TEEJA DEVI, JODHPUR (ONE OF THE LEGAL HEIR) VILLAGE PAL, JODHPUR PAN NO. ADDPC5099D 2 & ITA NO 350/JU/2010 ASSESSMENT YEAR: 2002-03 SHRI GOPA RAM CHOUDHARY, VS. THE ITO, WARD-3(2), VILLAGE PAL, JODHPUR JODHPUR PAN NO. ADDPC5099D (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI O.P.MAHESHWARI RESPONDENT BY : SHRI G.R. KOKANI DATE OF HEARING : 24.07.2012 DATE OF PRONOUNCEMENT : 24.07.2012 ORDER PER BENCH THESE SIX APPEALS BY THE DIFFERENT ASSESSEES ARE DI RECTED AGAINST THE SEPARATE ORDERS EACH DATED 12.3.2010 OF CIT(A), JOD HPUR. 2. IN THESE APPEALS, A SIMILAR ISSUE IS INVOLVED HA VING IDENTICAL FACTS AND THE APPEALS WERE HEARD TOGETHER, SO THESE ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 3. FIRST, WE WILL DEAL WITH ITA NO. 345/JU/2010. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL:- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E NOTICE ISSUED U/S 153C IS WITHOUT JURISDICTION, TIM E 3 BARRED AND THEREFORE, THE NOTICE AND ORDER DESERVES TO BE QUASHED. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE ORDER PASSED BY THE LD ASSESSING OFFICER U/S 15 3C / 143(3) AND CONFIRMED BY THE LD CIT(A) IS BAD IN LAW AND BAD IN FACTS AS PROVISIONS OF SECTION 153C ARE NOT APPLICABLE IN THE CASE OF APPELLANT. SUCH AN ORDER IS NULL AND VOID AND WITHOUT JURISDICTION AND THEREFORE, DE SERVES TO BE DISMISSED. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD.CIT(A) AND LD ASSESSING OFFICER HAS NOT FOLLOWE D THE DIRECTION ISSUED IN THE CASE OF THE APPELLANT BY TH E HON'BLE ITAT JODHPUR BENCH OF PROVIDING AN OPPORTUN ITY TO THE ASSESSEE FOR CROSS EXAMINATION OF THE SEARCH ED PERSON. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD CIT(A) ERRED IN NOT FOLLOWING THE LAW LAID D OWN BY THE HON'BLE JURISDICTIONAL ITAT BENCH IN THE CASE O F BEEJARAM BHEEL AND OTHERS (ITA NO. 847/JODHPUR/2007 DATED 26.6.2008) 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE THE ORDER PASSED IS LIABLE TO BE QUASHED AS THE DEPARTM ENT FAILED TO ISSUE NOTICES TO ALL THE LEGAL HEIRS. 6. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE PROCEEDINGS INITIATED AGAINST THE DECEASED PERSON I S BAD IN LAW AND AS SUCH THE LD CIT(A) OUGHT TO HAVE CANC ELLED THE ORDER PASSED BY THE ASSESSING OFFICER. 4 7. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD CIT(A) ERRED IN SUSTAINING THE ADDITION OF R S. 119345/ ON ACCOUNT OF LONG TERM CAPITAL GAIN. 8. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD CIT(A) ERRED IN CONFIRMING LEVY OF INTEREST U/S 234A AND 234B. 9. THAT THE APPELLANT CRAVE LIBERTY TO ADD, AMEND, ALT ER, MODIFY OR DELETE ANY OF THE GROUND OF APPEAL ON OR BEFORE ITS HEARING BEFORE YOUR HONOUR. 4. BOTH THE PARTIES AT THE FIRST INSTANCE ARGUED TH E GROUNDS RELATING TO THE VALIDITY OF THE ORDER PASSED U/S 153C OF THE ACT. 5. THE FACTS OF THE CASE IN BRIEF ARE THAT THE ASSE SSMENT WAS FRAMED IN THIS CASE U/S 153 / 143 (3) OF THE INCOME-TAX ACT, 1961 [HEREINAFTER REFERRED TO AS THE ACT IN SHORT] ON 27.12.2006, WHICH ROUTED TH ROUGH CIT(A) TO ITAT WHEREIN VIDE ORDER DATED 10.2.2009 IN ITA NO. 78/JU /2008, THE ASSESSMENT ORDER DATED 27.12.2006 WAS SET ASIDE WITH THE DIREC TION TO MAKE ASSESSMENT AFRESH AFTER ISSUING PROPER NOTICE AND EFFECTIVE O PPORTUNITY OF BEING HEARD . THE ASSESSEE CHALLENGED THE ISSUANCE OF NOTICE U/S 153C READ WITH SECTION 153A OF THE I.T. ACT. THE ASSESSING OFFICER OBSERV ED THAT PROPER NOTICES U/S 153C R.W.S. 153A WERE ISSUED AND SERVED, HENCE, THI S OBJECTION WAS NOT SUSTAINABLE. THE ASSESSEE CARRIED THE MATTER TO TH E LD CIT(A) AND SUBMITTED THAT IN THE ASSESSMENT ORDER IT HAD BEEN STATED THA T THE SEIZED DOCUMENTS / MATERIAL WERE FORWARDED BY THE ACIT, CENTRAL CIRCLE -1, JODHPUR TO THE ITO THROUGH JCIT, RANGE-3, JODHPUR VIDE LETTER NO. 686 DATED 21.11.2005, WHICH MEANS THAT THE LAST ASSESSMENT ORDER THAT SHALL CON STITUTE SIX ASSESSMENT YEARS 5 SHALL BE THE ASSESSMENT YEAR 2000-01, HOWEVER, THE ASSESSING OFFICER COMPELLED THE ASSESSEE TO FILE THE RETURN FOR SEVEN ASSESSMENT YEARS FROM ASSESSMENT YEARS 1998-99 TO 1999-2000. THE ASSESSE E ALSO SUBMITTED THAT THERE WAS NO PROPER SERVICE OF NOTICE U/S 153C ON EACH OF THE LEGAL HEIRS AND THAT THE ISSUE WAS COVERED BY THE DECISION OF THE I TAT, JODHPUR IN THE CASE OF SHRI BEEJARAM BHEEL & OTHERS, JODHPUR (ITA NO. 847/ JU/2007 DATED 27.6.2008). THE LD CIT(A) DID NOT FIND MERIT IN T HE SUBMISSIONS OF THE ASSESSEE BY OBSERVING THAT THE ASSESSEE HAD NOT PRO DUCED ANY MATERIAL TO INDICATE THAT NO SATISFACTION HAD BEEN RECORDED. H E ALSO OBSERVED THAT THERE WAS NO REQUIREMENT TO AFFORD HEARING TO A PARTY BEF ORE RECORDING SATISFACTION U/S158 BD, SINCE OPPORTUNITY OF HEARING HAS TO BE G IVEN TO THE ASSESSEE BEFORE MAKING THE ASSESSMENT AND HENCE IT WOULD BE UNREASONABLE TO REQUIRE ANOTHER OPPORTUNITY OF HEARING BEFORE RECORDING SA TISFACTION. NOW THE ASSESSEE IS IN APPEAL. 6. THE LD. COUNSEL FOR THE ASSESSEE AT THE VERY OU TSET STATED THAT THIS ISSUE IS SQUARELY COVERED BY THE ORDER DATED 27.6.2008 O F THIS BENCH OF THE TRIBUNAL IN THE CASE OF SHRI SHRI BEEJARAM BHEEL & OTHERS, JODHPUR V ITO, WARD-3(3), JODHPUR IN ITA NO. 847/JU/2007 AND OT HERS. IT WAS FURTHER SUBMITTED THAT THE SAID ORDER OF THE ITAT HAS BEEN CONSIDERED IN THE SUBSEQUENT ORDER DATED 4.10.2010 IN ITA NO. 412./JU /2010 FOR THE ASSESSMENT YEAR 1998-99 IN THE CASE OF SHRI MEPA RAM BHEEL JOD HPUR V ITO, WARD-3(3), JODHPUR. 7. THE LD. DR IN HIS RIVAL SUBMISSIONS ALTHOUGH SUP PORTED THE ORDERS OF THE AUTHORITIES BELOW BUT COULD NOT CONTROVERT THE AFORESAID CONTENTION OF LD. 6 COUNSEL FOR THE ASSESSEE. HOWEVER, BOTH THE PARTIE S AGREED THAT THEY HAVE NO OBJECTION, IF THE ISSUE BE SENT BACK TO THE ASSESSI NG OFFICER TO BE DECIDED AFRESH AS THE FACTS OF THE PRESENT CASE ARE SIMILAR TO THE FACTS INVOLVED IN THE CASE OF SHRI SHRI BEEJARAM BHEEL & OTHERS, JODHPUR (SUPRA). 8. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PA RTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD, IN THE INSTANT CA SE, IT APPEARS THAT THE LD CIT(A) HAS NOT ADJUDICATED UPON THE LEGAL ISSUE REL ATING TO VALIDITY OF PROCEEDINGS U/S 153C WHICH IS CLEAR FROM HIS OBSERV ATION AT PAGE NO.4 OF THE IMPUGNED ORDER, WHEREIN IN PARA 2, THE OBSERVATION MADE BY THE LD CIT(A) READ AS UNDER:- UPON CONSIDERATION OF RELEVANT FACTS, I FIND THAT THE PROCEEDINGS U/S 153C HAS BEEN RIGHTLY INITIATED BY THE ASSESSING OFFICER WHICH IS, THEREFORE, UPHELD. FURT HER, I FIND THAT IN THE INSTANT PROCEEDINGS ARISING AS A CONSEQUENCE OF THE ORDER OF HONBLE ITAT DATED 10.2.2009 IN ITA NO. 78/JODHPUR/2008, THE ONLY ISSU E COMING UP FOR CONSIDERATION IS FRESH ASSESSMENT AS THE HON'BLE ITAT HAD BEEN PLEASED TO SET ASIDE THE INIT IAL ASSESSMENT ORDER FOR ENABLING THE ASSESSING OFFICER TO MAKE ASSESSMENT AFRESH AFTER ISSUING PROPER NOTICES ON THE LEGAL REPRESENTATIVE AND PROVIDING HIM / HER REASONABLE AND EFFECTIVE OPPORTUNITY OF BEING HEARD FROM WHICH IT IS APPARENT THAT ONLY ASSESSMENT OF INCOME CAN BE SUBJECT MATTER OF THE FRESH PROCEEDINGS CONSEQU ENTIAL TO THE ORDER OF HON'BLE ITAT AND NO LEGAL ISSUE REL ATING TO VALIDITY OF THE PROCEEDINGS U/S 153C CAN BE CONSIDERED. THE ASSESSEES APPEAL IN RESPECT OF GR OUND NOS. 1 TO 4 IS, THEREFORE, NOT ALLOWED. 7 9. FROM THE ABOVE OBSERVATION OF THE LD CIT(A) IT IS CRYSTAL CLEAR THAT HE HAS NOT DECIDED THE VALIDITY OF PROCEEDINGS U/S 153 C BY STATING THAT ONLY ASSESSMENT OF INCOME COULD BE A SUBJECT MATTER OF T HE FRESH PROCEEDINGS CONSEQUENTIAL TO THE ORDER OF ITAT. IN OUR CONSIDE RED VIEW, THE AFORESAID VIEW OF THE LD CIT(A) IS CONTRARY TO THE FACTS OF THE PRESENT CASE BECAUSE THE ASSESSING OFFICER IN THE ASSESSMENT ORDER DATED 22. 12.2009 HAS CLEARLY OBSERVED AS UNDER:- THE HON'BLE ITAT BENCH JODHPUR VIDE ORDER DATED 10.2.2009 IN APPEAL NO. ITA NO. 78/JODHPUR/2008 (ASSESSMENT YEAR 1999-2000) SET ASIDE THE SAID ORDE R WITH THE DIRECTION TO MAKE ASSESSMENT AFRESH AFTER ISSUING PROPER NOTICES AND EFFECTIVE OPPORTUNITY OF BEING HEARD. 10. FROM THE ABOVE NOTING OF THE ASSESSING OFFICER, IT IS CRYSTAL CLEAR THAT THE APPEAL WAS SET ASIDE BY THE ITAT TO THE ASSESS ING OFFICER WITH THE DIRECTION TO MAKE ASSESSMENT AFRESH AFTER ISSUING P ROPER NOTICE OF HEARING AND OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IT IS ALSO NOTICED FROM THE SAID ASSESSMENT ORDER, THAT THE MAIN ISSUE RAISED V IDE LETTER DT 4.9.2009 BEFORE THE ASSESSING OFFICER WAS THAT THE ASSESSING OFFICER HAS ERRED IN ISSUING NOTICE U/S 153C OF THE ACT, WHICH ALSO SHOW S THAT THE ASSESSEE CHALLENGED THE VALIDITY OF THE ASSESSMENT U/S 153C OF THE ACT NOT ONLY BEFORE THE LD. CIT(A) BUT ALSO BEFORE ASSESSING OFFICER. FURTHERMORE, NO WHERE IT IS STATED IN THE ORDER DATED 10.2.2009 OF THE ITAT THA T THE LEGAL ISSUE RELATING TO THE VALIDITY OF JURISDICTION U/S 153C OF THE ACT BE NOT DECIDED BY THE ASSESSING OFFICER. WE, THEREFORE, CONSIDERING THE TOTALITY OF FACTS AS NARRATED HEREINABOVE, DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF THE 8 ASSESSING OFFICER AND DIRECT HIM TO DECIDE THE ISSU E BY KEEPING IN VIEW THE DIRECTIONS AND OBSERVATIONS GIVEN BY ITAT IN THE OR DER DT 27.6.2008 IN THE CASE OF SHRI BEEJARAM BHEEL & OTHERS, JODHPUR V IT O, WARD-3(3) IN ITA NO. 847/JU/2007. 11. IN THE OTHER APPEALS I.E. IN ITA NOS. 346 TO 35 0/JU/2010, THE FACTS WERE THE SAME AS WERE IN ITA NO. 345/JU/2010 (SUPRA), TH EREFORE, OUR FINDINGS GIVEN IN THE FORMER PART OF THIS ORDER SHALL APPLY MUTATIS-MUTANDIS FOR THE OTHER APPEALS ALSO. 12. IN THE RESULT, ALL THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON THIS 24.07.2 012 ) SD/- SD/- (R.K.GUPTA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMER DATED : 24 TH JULY, 2012 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR