Tribhuvan Nath Nigam, Kanpur Dehat V. Income Tax Officer-3(4), Kanpur

ITA 366/LKW/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6488 (ITAT-LUCKNOW)
• Duration Of Justice: 2 year(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 26-06-2018
• Assessment Year: 2012-2013
• Appeal Filed On: 09-06-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: H K
• Keywords: Search and seizure
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI. T.S. KAPOOR, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER ITA NO. 366/LKW/2016 ASSESSMENT YEAR: 2012 - 13 TRIBHUVAN NATH NIGAN KESHAV NAGAR RASULABAD K ANPUR DEHAT V. INCOME TAX OFFICER 3(4) KANPUR T AN /PAN : AGVPN1415B (APP ELL ANT) (RESPONDENT) APPELLANT BY: SHRI ABHINAV MEHROTRA, ADVOCATE RESPONDENT BY: SHRI H.K. PANDEY, D.R. DATE OF HEARING: 26 0 6 201 8 DATE OF PRONOUNCEMENT: 26 0 6 201 8 O R D E R PER P ARTHA SARATHI CHAUDHURY, J.M : THIS APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM THE ORDER OF THE LD. CIT(A) - I, KANPUR DATED 1/3/2016 AS PER THE GROUNDS OF APPEAL APPEARING ON RECORD. 2 . AT THE TIME OF HEARING, THE LD. A.R. OF THE ASSESSEE SUBMITTED THAT THE GROUNDS RAISED BY THE ASSESSEE RELATE TO THE ADDITION OF RS.4 LAKHS CONFIRMED BY THE LD. CIT(A). THE LD. A.R. OF THE ASSESSEE FURTHER SUBMITTED THAT THE ASSESSMENT PROCEEDINGS ITSELF WAS NOT VALID IN LAW SINCE IT WAS DONE BY INVOKING THE PROVISI ONS OF SECTION 153A OF THE ACT WHEREAS IT SHOULD HAVE BEEN DONE UNDER SECTION 143(3) OF THE ACT. THE LD. A.R. OF THE ASSESSEE PRAYED BEFORE US TO ADJUDICATE THIS LEGAL GROUND AS IT GOES TO THE ROOT OF THE MATTER. AS PRAYED BY THE LD. A.R. OF THE ITA NO.366/LKW/2016 PAGE 2 OF 3 ASSESSEE BEFORE US, WE PROCEED TO ADJUDICATE THE LEGAL GROUND WHICH GOES TO THE ROOT OF THE MATTER. WHEN WE LOOK INTO THE ASSESSMENT ORDER, WE FIND THAT THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3)/153B(1)(B) OF THE ACT. IN THE ASSESSMENT ORDER ITSELF , IT I S STATED THAT THE PROCEEDINGS UNDER SECTION 153A OF THE ACT WAS INITIATED. THEREAFTER, THE LD. A.R. OF THE ASSESSEE INVITED OUR ATTENTION TO THE PROVISIONS OF SECTION 153A OF THE ACT AND AS PER THIS SECTION FR OM 1/4/2017 ALL THE SEARCH MATTERS PROCEEDINGS HAVE TO BE INITIATED UNDER SECTION 153A OF THE ACT BUT PRIOR TO THAT PERIOD, THE ASSESSMENT WAS TO BE COMPLETED UNDER SECTION 143(3) OF THE ACT. WE ENQUIRED FROM THE LD. A.R. OF THE ASSESSEE WHETHER THIS LEGAL GROUND WAS TAKEN UP BEFORE THE LD. CIT(A) AN D WHETHER THE LD. CIT(A) HAS ADJUDICATED UPON THE SAME, IN RESPONSE TO WHICH THE LD. A.R. OF THE ASSESSEE SUBMITTED THAT THIS GROUND WAS NOT TAKEN UP BEFORE THE LD. CIT(A) AND THIS GROUND WAS PRIMA - FACIE RAISED FOR THE FIRST TIME BEFORE THE TRIBUNAL. 3 . THE LD. D.R. OBJECTED TO THE ADMISSION OF THIS LEGAL GROUND WITH THE SUBMISSION THAT THIS GROUND WAS NEVER TAKEN UP BEFORE THE FIRST APPELLATE AUTHORITY . HE FURTHER SUBMITTED THAT ADJUDICATION OF LEGAL GROUND BY THE DEPARTMENTAL AUTHORITY I S REQUIRED AND THE REAFTER THE VERACITY OF SUCH ADJUDICATION COULD BE PLACED BEFORE TH E TRIBUNAL . IN THE ABSENCE OF SUCH EXERCISE , FOR THE VERY FIRST TIME THE GROUND SHOULD NOT BE TAKEN UP. 4 . WE HAVE PERUSED THE CASE RECORDS AND HEARD THE RIVAL CONTENTIONS AND WE FIND THAT TH OUGH TECHNICALLY PROVISIONS OF SECTION 153A OF THE ACT IS MANDATORY IN SEARCH AND SEIZURE PROCEEDINGS FROM 1/4/2017, HOWEVER, REGARDING THE VALIDITY OF THIS ASSESSMENT ORDER, IN THE INTEREST OF JUSTICE AND TAKING INTO THE TOTALITY OF THE FACTS INTO CONSIDE RATION, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE ITA NO.366/LKW/2016 PAGE 3 OF 3 MATTER BACK TO HIS FILE WITH A DIRECTI ON TO THE ASSESSEE TO PUT FORTH THIS LEGAL GROUND BEFORE THE LD. CIT(A) AND HE SHALL ADJUDICATE TH E LEGAL GROUND TAKEN UP BY THE ASSESSEE AND PASS A SPEA KING ORDER AFTER PROVIDING OPPORTUNITY OF HEARING TO THE ASSESSEE. 5 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 26 / 0 6 / 201 8 . SD/ - SD/ - [ T.S. KAPOOR ] [PARTHA SARATHI CHAUDHURY ] ACCOUNT ANT MEMBER JUDICIAL MEMBER DATED: 26 TH JUNE , 201 8 JJ: 2606 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR