TECHNO SOLUTIONS (INDIA) LTD, NAVI MUMBAI V. ASST CIT CEN CIR 3(2), MUMBAI

ITA 3813/MUM/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9004 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 10-08-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 22-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M V RAJGURU
• Assessee Lawyers: DILIP V LAKHANI
• Keywords: Search and seizure
• Section: 143(3); 153A

Judgement Text

, INCOME-TAX APPELLATE TRIBUNAL -IBENCH MUMBAI , , , BEFORE S/SHRI RAJENDRA,ACCOUNTANT MEMBER AND RAM LAL NEGI,JUDICIAL MEMBER ./I.T.A./3813-3814/MUM/2015, /ASSESSMENT YEAR: 2009-10, 2010-11 ./I.T.A./3816/MUM/2015, /ASSESSMENT YEAR: 2011-12 TECHNO SOLUTIONS (INDIA) LIMITED 307, SAI CHAMBERS, SECTOR-11, CBD BELAPUR, NAVI MUMBAI-410 614. PAN:AABCT 3653 L VS. ACIT , CENTRAL CIRCLE-3(2) (ERSTWHILE DCIT, CENTRAL CIRCLE-18 & 19) 402, AAYAKAR BHAVAN, M.K. ROAD MUMBAI-400 020. ( /APPELLANT ) ( / RESPONDENT ) REVENUE BY: SHRI M.V. RAJGURU- DR ASSESSEE BY: SHRI DILIP V. LAKHANI / DATE OF HEARING: 22.09.2017 / DATE OF PRONOUNCEMENT: 03.11.2017 ,1961 254(1) ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA, AM - CHALLENGING THE ORDERS DATED 11/03/2015 OF CIT (A)- 51, MUMBAI, THE ASSESSEE HAS FILED APPEALS FOR THE ABOVE MENTIONED THREE ASSESSMENT YE ARS (AY.S). ASSESSEE-COMPANY,IS ENGAGED IN BUSINESS OF PROVIDING MANAGEMENT CONSULT ANCY SERVICES TO VARIOUS CORPORATE BODIES.AN ACTION U/S. 132(1) OF THE ACT WAS CARRIE D OUT IN THE ISPAT INDUSTRIES GROUP ON 30/11/2010. ASSESSEE IS A SISTER-CONCERN OF THE IS PAT GROUP AND WAS ALSO COVERED UNDER THE SEARCH AND SEIZURE ACTION.AS MOST OF THE ISSUES IN THE APPEAL ARE SIMILAR, SO, WE ARE ADJUDICATING THEM TOGETHER.A NOTICE U/S. 153 A WERE ISSUED ON 17/1/2012. THE DETAILS OF DATES OF FILING OF RETURN, RETURNED INCOMES, DATES OF ASSESSMENT U/S/ 153A R.W.S. 143(3) OF THE ACT AND ASSESSED INCOMES CAN BE SUMMARIZED AS UNDER :- AY. ROI FILED ON RETURNED INCOME (RS.) ORDER U/S. 153A R.W.S. 143(3) ASSESSED INCOMES 2009-10 09/05/2012 17,56,116/- 22/03/2013 24,27,756/- 2010-11 09/05/2012 39,70,117/- 22/03/2013 50,72,580/- 2011-12 28/09/2011 86,40,288/- 22/03/2013 93,50,950/- ITA/3813/MUM/15-AY.2009-10: 2. DURING THE ASSESSMENT PROCEEDINGS,THE ASSESSEE WAS DIRECTED TO RECONCILE TOTAL RECEIPTS AS REFLECTED IN FORM NO.26AS WITH THE TOTAL RECEIPTS C REDITED TO P&L ACCOUNT.IN RESPONSE TO THE DIRECTIONS,IT FILED A CHART CONTAINING THE DETAILS SUCH AS NAME OF THE PERSON INCOME EARNED AND TAX DEDUCTED AT SOURCE ETC.THE AO OBSERVED THAT THE ASSESSEE WAS IN RECEIPT OF CERTAIN INCOME 3813-14,3816- TECHNO SOLUTIONS(INDIA) LTD. 2 THAT WERE NOT TAKEN INTO ACCOUNT IN THE BOOKS . HE MADE AN ADDITION OF RS. 6.71 LAKHS UNDER THE HEAD DIFFERENCE BETWEEN THE TOTAL INCOME AS PER THE FORM NO.26AS AND TOTAL INCOME SHOWN IN THE BOOKS OF ACCOUNT. 2.1. AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE PREFERRE D AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY (FAA) AND MADE DETAILED SUBMISSIONS WHO D IRECTED THE AO TO VERIFY CERTAIN ADDITIONS AND BALANCE AMOUNT WAS CONFIRMED. 2.2. BEFORE US, THE AUTHORISED REPRESENTATIVE STATED THA T PROCEEDING FOR AY 2009-10 WAS OVER ON THE DATE OF THE SEARCH, THAT ON THAT DATE N O PROCEEDINGS WERE PENDING, THAT PROCEEDINGS FOR THE YEAR UNDER APPEAL DID NOT ABATE , THAT THE AO COULD DEAL ONLY WITH THE ISSUE THAT WAS FOUND DURING THE COURSE OF SEARCH, T HAT ONLY THE UNDISCLOSED INCOME DETECTED COULD BE ADDED IN THE HANDS OF THE ASSESSEE, THAT T HE AO HAD MADE ADDITION ON ACCOUNT OF ALLEGED DIFFERENCE IN FORM NO.26 AS AND BOOKS OF AC COUNT,THAT THERE WAS NO MENTION OF ANY MATERIAL FOUND DURING THE COURSE OF SEARCH IN THE A SSESSMENT ORDER. HE RELIED UPON THE JUDGMENT OF HON'BLE BOMBAY HIGH COURT IN CASE OF AL L CARGO GLOBAL LOGISTICS (374 ITR 645)AND STATED THAT ORDER PASSED BY AO WAS BAD IN L AW.THE DEPARTMENTAL REPRESENTATIVE (DR) LEFT THE ISSUE TO THE DISCRETION OF THE BENCH. 2.3. WE HAVE HEARD RIVAL SUBMISSION AND FIND THAT SEARCH AND SEIZURE ACTION WAS CARRIED OUT IN GROUP COMPANIES BY DEPARTMENT , THAT ON THE DATE OF SEARCH THE ASSESSMENT FOR THE YEAR UNDER APPEAL WAS OVER, THAT THE AO HAD NOT REFERRED TO A NY SEIZED MATERIAL FOUND /SEIZED DURING THE SEARCH AND SEIZURE PROCEEDING WHILE PASSING ASSESSM ENT ORDER, THAT THE ONLY ADDITION IS ON ACCOUNT OF DIFFERENCE IN FIGURES APPEARING IN FORM NO. 26AS AND BOOKS OF ACCOUNT AS ASSESSMENT IS NOT BASED ON SOME SEIZED MATERIAL,.SO , IN OUR OPINION, THE ORDER PASSED BY AO AND FAA IS INVALID. IN THE MATTER OF ALL CARGO GLOB AL LOGISTICS (SUPRA),THE HON'BLE BOMBAY HIGH COURT HAS CLEARLY HELD THAT WHERE THE ASSESSM ENTS ARE OVER NO ADDITION CAN BE MADE TO THE INCOME OF ASSESSEE WITHOUT REFERRING TO A SEI ZED DOCUMENT/ASSET.THEREFORE, REVERSING THE ORDER OF FAA, WE DECIDE THE EFFECTIVE GROUND OF APP EAL IN FAVOUR OF THE ASSESSEE . 3814 AND 3816/MUM/2015 -A.Y.S2010-11 AND 2011-12: 3. THE EFFECTIVE GROUND OF APPEAL IN BOTH THE YEARS A RE ABOUT ADDITION MADE ON ACCOUNT OF DIFFERENCE APPEARING IN THE FORM NO.26AS AND BOOKS OF ACCOUNT.THE AO,DURING THE ASSESSMENT PROCEEDINGS,HELD THAT ENTRIES REFLECTED IN FORM NO.26AS COULD NOT BE RECONCILED WITH THE INCOME DISCLOSED IN THE P&L ACCOUNTS IN BO TH THE YEARS. THE AO MADE ADDITION OF RS.11.02 LAKHS AND RS.7.10 LAKHS FOR THE AY.S 2010- 11 AND 2011-12 RESPECTIVELY. IN THE APPELLATE PROCEEDINGS ,THE FAA ALOWED PARTIAL REL IEF. 3813-14,3816- TECHNO SOLUTIONS(INDIA) LTD. 3 3.1. DURING THE COURSE OF HEARING BEFORE US, THE AR STA TED THAT THE FAA SHOULD HAVE GIVEN FULL RELIEF,THAT THE ASSESSEE HAD RECONCILED THE DIFFERENCE BETWEEN FORM NO. 26AS IN THE BOOKS OF ACCOUNT, THAT INCOME BELONGING TO ASSESSEE WAS OFFERED FOR TAXATION, THAT CERTAIN ENTRIES IN FORM 26AS DID NOT PERTAIN TO THE ASSESSE E . HE REFERRED TO VARIOUS PAGES OF THE PAPER BOOK FILED BEFORE US. THE DR STATED THAT FAA HAD ALREADY GIVEN PARTIAL RELIEF TO THE ASSESSEE AFTER CONSIDERING THE AVAILABLE MATERIAL. 3.2. AFTER HEARING BOTH THE SIDES, WE ARE OF THE OPINION , THAT MATTERS NEED FURTHER VERIFICATION. THEREFORE,IN THE INTEREST OF JUSTICE, WE ARE RESTOR ING BACK THE ISSUE OF RECONCILIATION OF INCOME AS PER FORM NO.26 AND AS PER BOOKS OF ACCOUNT TO TH E FILE OF AO. HE IS DIRECTED TO CONSIDER PB FILED BEFORE US BEFORE PASSING THE ORDER.THE AO TAXED THE INCOME THAT HAS BEEN EARNED BY THE ASSESSEE FOR THE ABOVE MENTIONED TWO YEARS AND WOULD GIVE RELIEF FOR THE OTHER ITEMS OF INCOME,EFFECTIVE GROUNDS OF APPEAL RAISED BY THE A SSESSEE FOR BOTH THE YEARS ARE DECIDED IN FAVOUR OF THE ASSESSEE,IN PART. AS A RESULT, APPEALS FOR THE AY.S 2009-10 IS ALLOWE D AND APPEALS FOR AY. 2010-11 AND 2011- 12 STAND PARTLY ALLOWED. . . 2009-10 . .2010-11 2011-12 . ORDER PRONOUNCED IN TH E OPEN COURT ON 3 RD NOVEMBER, 2017. 03 , 2017 SD/- SD/- ( / RAM LAL NEGI ) ( / RAJENDRA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; /DATED : 03.11.2017. JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR A BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.