Sh. Mukesh Mittal, Panchkula V. ACIT, CC-II, Chandigarh

ITA 37/CHANDI/2018

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5526 (ITAT-CHANDIGARH)
• Duration Of Justice: 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 05-11-2018
• Assessment Year: 2005-2006
• Appeal Filed On: 11-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G S PHANI KISHORECIT
• Keywords: Bonafide belief; Condonation of delay
• Section: 143(3); 153A; 143(2)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH B,CHANDIGARH , ! . .. . # $ , %& BEFORE: SH. SANJAY GARG, JM & DR. B.R.R.KUMAR, AM ./ ITA NOS. ITA 37 TO 39/CHD/2018 / ASSESSMENT YEAR : 2005-06 TO 2007-08 SHRI MUKESH MITTAL, HOUSE NO. 515, SECTOR 16, PANCHKULA. THE ACIT, CENTRAL CIRCLE=-II, CHANDIGARH. ./ PAN NO: ACBPM4280H / APPELLANT / RESPONDENT ! ' / ASSESSEE BY : SHRI SACHIN JAIN # ! ' / REVENUE BY : SHRI G.S.PHANI KISHORE, CIT $ % ! &/ DATE OF HEARING : 05.11.2018 '()* ! &/ DATE OF PRONOUNCEMENT : 05.11.2018 %'/ ORDER PER BENCH: THE PRESENT APPEALS HAVE BEEN PREFERRED BY THE ASSESSEE AGAINST THE SEPARATE ORDERS OF THE CIT(A) (CENTRAL), GURGAON DATED 04.10.2013. 2. ALL THE APPEALS ARE TIME BARRED BY 397 DAYS. SEPARATE APPLICATIONS FOR CONDONATION OF DELAY HAVE ALSO BEEN FILED. IT HAS BEEN PLEADED IN THE APPLICATIONS FOR CONDONATION OF DELAY THAT THE IMPUGNED ORDERS OF TH E CIT(A) WERE RECEIVED BY THE ASSESSEE ON 15.01.2015 WHICH WERE FURTHER GIVEN/FORWARDED TO THE OLD COUNS EL OF THE ASSESSEE FOR FILING FURTHER APPEALS TO THIS TRI BUNAL. THE ASSESSEE WAS UNDER BONAFIDE BELIEF THAT THE OLD ITA NOS. 37TO39/CHD/2018 PAGE 2 OF 5 COUNSEL OF THE ASSESSEE HAD ALREADY FILED THE APPEA LS. HOWEVER, THE THEN COUNSEL OF THE ASSESSEE NEITHER INFORMED THE ASSESSEE ABOUT THE NON FILING OF THE A PPEALS NOR GIVEN ANY OTHER INFORMATION IN THIS RESPECT. TH EN, THEREAFTER THE ASSESSEE CHANGED HIS COUNSEL. THE N EW COUNSEL ENGAGED BY THE ASSESSEE LOOKED INTO THE MAT TER AND FOUND THAT THE APPEALS FOR THE AFORESAID ASSESS MENT YEARS HAVE NOT BEEN FILED. THE ASSESSEE, THEREAFTE R CONTACTED HIS OLD COUNSEL BUT THE OLD COUNSEL DID N OT GIVE ANY INFORMATION IN THIS RESPECT TO THE ASSESSE E. THEREAFTER, IT WAS VERIFIED BY THE NEW COUNSEL THAT THE APPEALS FOR THE AFORESAID ASSESSMENT YEARS I.E. 200 5-06, 2006-07 AND 2007-08 REMAINED TO THE FILED. IT HAS, THEREFORE, BEEN PLEADED THAT NON FILING OF THE APPE ALS WITHIN THE STATUTORY LIMIT WAS NOT INTENTIONAL BUT DUE TO THE AFORESAID NON-COOPERATIVE ATTITUDE OF THE OLD C OUNSEL OF THE ASSESSEE. 3. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER BRO UGHT OUR ATTENTION TO AN ORDER DATED 10.11.2017 OF THIS TRIBUNAL PASSED IN ASSESSEE'S OWN CASE IN M.A.NO. 11/CHD/2017 & ORTS. WHEREBY THE APPEALS DISMISSED E X- PARTE OF THE ASSESSEE FOR ASSESSMENT YEAR 2008-09 A ND 2009-10 WERE RECALLED. THE PLEA TAKEN IN THE MISCELLANEOUS APPLICATION WAS THAT A DISPUTE WAS GO ING ON BETWEEN THE ASSESSEE AND HIS OLD COUNSEL AND THA T IS WHY HE DID NOT APPEAR ON THE DATE OF HEARING IN THO SE APPEALS. THEREAFTER, THE ASSESSEE ENGAGED HIS NEW COUNSEL AND IN VIEW OF THE ABOVE SUBMISSIONS WHICH WERE ITA NOS. 37TO39/CHD/2018 PAGE 3 OF 5 SUPPORTED BY THE AFFIDAVIT OF THE ASSESSEE, THE EX- PARTE DISMISSAL ORDER IN APPEALS DATED 18.11.2015 WAS REC ALLED VIDE ORDER DATED 10.11.2017. IN VIEW OF THIS, WE A RE CONVINCED THAT THE DELAY IN FILING THE APPEALS FOR THE ASSESSMENT YEARS UNDER CONSIDERATION IS UN-INTENTIO NAL BUT DUE TO THE AFORESAID FACTORS AS PLEADED ABOVE. IN VIEW OF THIS, THE DELAY IN FILING OF THESE APPEALS IS HEREBY CONDONED AND WE PROCEED TO DECIDE THE APPEALS ON MERITS. 4. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE IMPUGNED ADDITIONS CONFIRMED BY THE CIT(A) IN RELATION TO ALL THE AFORESAID ASSESSMENT YEARS WERE MADE BY THE ASSESSING OFFICER IN THE COURSE OF ASSESSMENT PROCEEDINGS CARRIED OUT U/S 153A READ WI TH SECTION 143(3) OF THE ACT PURSUANT TO SEARCH ACTION CARRIED OUT AT THE PREMISES OF THE ASSESSEE BY THE INCOME TAX AUTHORITIES ON 16.01.2009. IT HAS BEEN FURTHER PLEADED THAT ON THE DATE OF SEARCH, THE ORIGINAL ASSESSMENT PROCEEDINGS ALREADY STOOD COMPLETED AND THE ASSESSMENT FOR NONE OF THE ABOVE NOTED ASSESSMENT Y EARS WAS PENDING. EVEN THE LIMITATION FOR ISSUING OF SE PARATE NOTICES U/S 143(2) OF THE ACT HAD EXPIRED. NO INCRIMINATION MATERIAL WAS FOUND DURING THE SEARCH ACTION AND HENCE, NO ADDITIONS WERE WARRANTED UNDER THE ASSESSMENT CARRIED OUT U/S 153 OF THE ACT. HE IN T HIS RESPECT HAS RELIED UPON VARIOUS JUDICIAL DECISIONS INCLUDING THE DECISION OF THE IN THE HON'BLE BOMBA Y HIGH COURT IN THE CASE OF CIT VS. MURLI AGRO PRODUCTS PVT LTD, ITA NOS. 37TO39/CHD/2018 PAGE 4 OF 5 (2014) 49 TAXMAN.COM 172 (BOM.), ITA NO.36 OF 2009 AND IN THE CASE OF CIT VS. CONTINENTAL WAREHOUSING CORPOR ATION ITA NO. 523 OF 2013 REPORTED IN (2015) 279 CTR 0389 (BOMBAY) AND OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA 234 TAXMAN 300 (DELHI) AND SUBSEQUENT DECISION OF THE DELHI HIGH COURT IN THE CASE OF PRINCIPAL CIT VS. MEETA GUTGUTIA PROP M/S FERNS N PETALS, ITA 306/2017 AND OTHERS DECIDED VIDE ORDER DATED 25 .5.201. 5. THE LD. DR HAS ALSO BEEN FAIR ENOUGH TO ADMIT TH AT NO INCRIMINATING MATERIAL WAS FOUND IN THE CASE DUR ING THE SEARCH ACTION AND THAT THE FACTS AND ISSUE INVO LVED ARE SQUARELY COVERED BY THE AFORESAID DECISIONS. 6. WE FIND FORCE IN THE CONTENTION OF THE LD. AR. ADMITTEDLY, THE ASSESSMENT FOR THE YEAR UNDER CONSI DERATION STOOD COMPLETED ON THE DATE OF SEARCH. NO INCRIMINA TING MATERIAL WHATSOEVER IN RELATION TO THE SHARE APPLIC ATION MONEY WAS FOUND. IT HAS BEEN TIME AND AGAIN HELD BY THE VARIOUS HIGH COURTS THAT IF NO INCRIMINATING MATER IAL IS FOUND DURING THE SEARCH ACTION, THE ADDITION IN THE CASE OF ALREADY CONCLUDED ASSESSMENT CANNOT BE MADE WHILE F RAMING ASSESSMENT U/S 153A OF THE ACT. RELIANCE IN THIS RE SPECT CAN BE PLACED IN THE CASE OF CIT VS. CONTINENTAL WARE HOUSING CORPORATION ITA NO. 523 OF 2013 REPORTED IN (2015) 279 CTR 0389 (BOMBAY) AND OF THE HON'BLE DELHI HIGH COURT I N THE CASE OF CIT VS. KABUL CHAWLA 234 TAXMAN 300 (DELH I). 7. WE FIND THAT THE CASE OF THE ASSESSEE IS SQUARE LY COVERED BY THE AFORESAID DECISIONS. THE AFORESAID DECISIONS HAVE BEEN ITA NOS. 37TO39/CHD/2018 PAGE 5 OF 5 FURTHER AFFIRMED BY THE DECISION OF THE DELHI HIGH COURT IN THE CASE OF PRINCIPAL CIT VS. MEETA GUTGUTIA PROP M/S FERNS N PETALS, ITA 306/2017 AND OTHERS DECIDED VIDE O RDER DATED 25.5.2017. THE AFORESAID CASE LAWS CAN BE WELL APPL IED TO THE FACTS AND CIRCUMSTANCES OF THE CASE IN HAND. IN VIE W OF THIS, THE IMPUGNED ADDITIONS MADE/CONFIRMED BY THE LOWER AUTHORITIES FOR ONE ASSESSMENT YEAR UNDER CONSIDERA TION ARE HEREBY, ORDERED TO BE DELETED. 8. IN VIEW OF THIS, ALL THE APPEALS OF THE ASSESSEE ARE HEREBY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- ( . .. . # $ ) ( ) (DR. B.R.R.KUMAR ) (SANJAY GARG) %& / ACCOUNTANT MEMBER / JUDICIAL MEMBER DATED: 05.11.2018 POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT,DR ASSISTANT REGISTRAR, ITAT/CHD