Shivaji Bhagwanrao Jadhav, Pune V. Deputy Commissioner of Income-tax, Circle - 7, Pune

ITA 361/PUN/2018

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 7379 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 4 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 18-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASSESSEES ANY OTHER
• Section: 143(3); 153A; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “B”, PUNE BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER ITA No.361/PUN/2018 निर्धारण वषा / Assessment Year : 2007-08 Mr. Shivaji Bhagwanrao Jadhav Row House No.79/80, Himali Co-op Housing Society, Erandwane, Pune-411004 PAN : AAKPJ7226M Vs. DCIT, Circle 7, Pune Appellant Respondent आदेश / ORDER PER S.S. GODARA, JM : This assessee‟s appeal for AY 2007-08 arises against the CIT(A), Pune-5, Pune‟s order dated 21-12-2015 passed in case No. PN/CIT(A)-5/Dy.CIT/Cir-7, Pune/3/2009-10 in proceedings under Section 143(3) of the Income Tax Act, 1961, in short „the Act‟. Heard both the parties. Case file perused. 2. We note at the outset that the CIT(A)‟s order under challenge holds the assessee to have withdrawn its lower appeal on the Assessee by Shri Kishor Phadke Revenue by Shri M.G. Jasanani Date of hearing 06-07-2022 Date of pronouncement 14-07-2022 ITA No.361/PUN/2018 Shivaji Bhagwanrao Jadhav 2 ground that he had already succeeded in section 143(3) r.w.s. 153A assessment involving the very addition. It emerges in this backdrop of facts that the assessee has raised its additional ground No.10 seeking to restore its lower appeal before the CIT(A). 3. We have given our thoughtful consideration to the vehement rival stands and find no merit in the Revenue‟s arguments. A perusal of the case file suggests that we are in first round of section 143(3) regular assessment framed on 30.12.2009 making various disallowances / additions. The assessee had thereafter filed its lower appeal before the CIT(A) on 18.01.2010. There is further no issue between the parties that the department carried out the search in assessee‟s case in the intervening period on 08.09.2010 culminating in section 143(3) r.w.s. 153A assessment, wherein the Assessing Officer once again adopted his foregoing regular assessment‟s addition. The assessee thereafter filed his yet another appeal No.129/13-14 before the CIT(A) in section 143(3) r.w.s. 153A assessment which was allowed on 27.02.2015. The ITA No.361/PUN/2018 Shivaji Bhagwanrao Jadhav 3 Revenue‟s appeal ITA No.679/PUN/2015 against the same stood accepted on 06.12.2017 as under: “7. Ld. Counsel for the assessee submitted that the appeal before the First Appellate Authority in connection with the said additions made in the regular assessment u/s.143(3) of the Act, is pending for adjudication. Further, Ld. Counsel for the assessee submitted that he has no objection if appeal of the Revenue is allowed confirming the decisions of the AO. 8. We have heard both the parties on this issue and perused the orders of the AO/CIT(A) as well as the paper book filed by the assessee. There is no dispute on the fact that the additions narrated in Para 22 above of this order were actually made by the AO in the regular assessment u/s.143(3) of the Act. Further, we find that the AO adopted the assessed income in the present assessment made u/s.153A of the Act. The same is evident in the said order of the AO, who accepted the assessed income of Rs.1,20,11,195/- as determined u/s.143(3) of the Act. Further, in the First Appellate proceedings, we find the Ld. CIT(A) gave a finding deleting the additions on one side and treated the grounds as infructuous and refused to adjudicate the same on the other. By inference, the grounds are dismissed as infructuous. In the process, CIT(A) held that the additions needs to be deleted as they were made without having the basis of the any incriminating material to support the additions in the non-abated assessment. Thus, the CIT(A) on one side gave a finding in favour of deletion on one side and he refused to adjudicate the ground on the other side. The above extracted paras are relevant. 9. We find no merit in the order of CIT(A) since AO has not made any addition in the order passed u/s.143(3) r.w.s. 153A of the Act. The AO simply adopted the assessed income u/s.143(3) of the Act. There is thus no occasion to consider the aspect of abatement or non- abatement of proceedings, in the present case. Further there is no need to look into the aspect of incriminating documents or not. The assessed income is to be adopted as such. If the assessee has any grievance against the said additions, then the same has to be perused in appeal against the order u/s.143(3) of the Act, separately. Accordingly, we reverse the order of CIT(A) and restore the order of the AO. The grounds of appeal raised by Revenue are thus allowed.” ITA No.361/PUN/2018 Shivaji Bhagwanrao Jadhav 4 4. It is therefore, clear that the assessee‟s various substantive grounds raised against Assessing Officer‟s action(s) in section 143(3) regular assessment have remained un-adjudicated on merits as on date. Faced with this clinching factual position, we are of the view that the CIT(A) herein needs to decide the assessee‟s lower appeal in the foregoing former round as per law as contemplated u/s 250(6) of the Act. Ordered accordingly. The assessee succeeds in his pleadings to this limited extent in 10 th additional ground (supra) at this stage. Learned counsel does not press for assessee‟s any other ground in above terms. 5. This assessee‟s appeal is allowed for statistical purposes in above terms. Order pronounced in the Open Court on 14 th July, 2022. Sd/- Sd/- (DIPAK P. RIPOTE) (S.S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER प ु णे Pune; ददिधांक Dated : 14 th July, 2022 GCVSR ITA No.361/PUN/2018 Shivaji Bhagwanrao Jadhav 5 आदेश की प्रतिलिपि अग्रेपिि/Copy of the Order is forwarded to: 1. अपीऱधर्थी / The Appellant; 2. प्रत्यर्थी / The Respondent; 3. The CIT(A), Pune-5, Pune 4. 5. The Pr.CIT, Pune-4, Pune विभागीय प्रविविवि, आयकर अपीलीय अविकरण, पुणे “B” / DR „B‟, ITAT, Pune 6. गार्ड फाईल / Guard file आदेशान ु सार/ BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अविकरण ,पुणे / ITAT, Pune Date 1. Draft dictated on 07-07-2022 Sr.PS 2. Draft placed before author 08-07-2022 Sr.PS 3. Draft proposed & placed before the second member JM 4. Draft discussed/approved by Second Member. JM 5. Approved Draft comes to the Sr.PS/PS Sr.PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order.