MANOJ CHATURVEDI, MUMBAI V. ITO 4(2), THANE

ITA 384/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1605 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 28-01-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANPREET SINGH DUGGAL
• Keywords: Document seized; Opportunity of cross examination; Third party statement; Competent authority; Condonation of delay; Reassessment proceedings
• Section: 143(3); 153A; 143(1); 201; 143(2); 69A; 153

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D , MUMBAI BEFORE S HRI SHAMIM YAHYA (AM ) AND SHRI RAM LAL NEGI (JM) ITA NO. 384 /MUM/2019 ASSESSMENT Y EAR: 2010 - 11 MANOJ CHATURVEDI, 701, NIKHIL HERITAGE, ACHOLE ROAD, NALLASOPARA (E), TAL: VASAI, DIST : PALGHAR - 401209 PAN: ACIPC2076Q VS. THE ITO 4(2), A WING, 6 TH FLOOR, ASHAR IT PARK, WAGLE INDL. ESTATE, ROAD NO. 16Z, THANE (W) - 400604 (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI MANPREET SINGH DUGGAL (DR) DATE OF HEARING: 18 /11 /2020 DATE OF PRONOUNCEMENT: 23 / 11 /2020 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 03.12.2018 PASSED BY THE COMMISSIO NER OF INCOME TAX (APPEALS) - 3 (FOR SHORT THE CIT(A) , THANE , FOR THE ASSESSMENT YEAR 2010 - 11 , WHEREBY THE LD. CIT(A) HAS DISMISSED T HE APPEAL FILED BY THE ASSESSEE AGAINST THE ASSESSMENT ORDER PASSED U/S 143 (3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT). 2. THE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER PASSED BY THE LD. CIT (A) ON THE FOLLOWING EFFECTIVE GROUND : - 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED ASSESSING OFFICER ERRED IN PASSING ORDER U/S 143 (3) R .W.S. 147 MERELY ON THE BASIS OF THIRD PARTY STATEMENTS. 2 ITA NO. 384 / MUM/2019 ASSESSMENT YEAR: 201 0 - 1 1 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED A.O. ERRED IN ADDING RS. 86,75,000/ - AS UNEXPLAINED MONEY U/S 69A EVEN THOUGH: A. THE NOTICE U/S 143(2) WAS ISSUED 6 MONTHS AFTE R ISSUANCE OF NOTICE OF REOPENING; THIS RENDERS THE ENTIRE REASSESSMENT PROCEEDINGS VOID. B. THE ASSESSING OFFICER CANNOT CARRY OUT REASSESSMENT PROCEEDINGS IN SPITE OF THE FACT THAT ASSESSMENT WAS COMPLETED U/S 143(1) EARLIER. C. THE ASSESSING OFFICER CAN NOT INITIATE REASSESSMENT PROCEEDINGS MERELY ON THE STATEMENTS OF THIRD PARTIES. D. THE ASSESSING OFFICER HAS NOT FURNISHED COPIES OF STATEMENTS OF THE PERSONS ON WHOM SEARCH WAS CONDUCTED. E. THE SAID DOCUMENTS ON THE BASIS OF WHICH ADDITIONS WERE MADE WHICH WERE SEIZED FROM MAAD GROUP HAD NO EVIDENTIARY VALUE. 3. IN FACTS AND CIRCUMSTANCE OF THE CASE AND IN LAW, THE LEARNED ASSESSING OFFICER ERRED IN PASSING THE ORDER U/S 143(3) R W S 148 AS THE REASSESSMENT PROCEEDINGS INITIATED BY ASSESSI NG OFFICER UNDER SECTION 148 WERE ILLEGAL AND VOID AB INITIO BECAUSE THE ASSESSING OFFICER SHOULD HAVE ISSUED NOTICE UNDER SECTION 1 53C AND SHOULD HAVE FRAMED ASSESSMENT UNDER SECTION 1 53C, READ WITH SECTION 153A PARTICULARLY WHEN THE ASSESSING OFFICER REC EIVED INFORMATION FROM THE OFFICE OF THE ACIT CENTRAL CIRCLE 2, THANE THAT A SEARCH ACTION HAD BEEN CONDUCTED ON THE MAAD GROUP OF COMPANIES ON 31/07/2014 AND ASSESSED U/S 153A. 4. IN FACTS AND CIRCUMSTANCE OF THE CASE AND IN LAW, THE LEAR NED ASSESSING OFFICER ERRED IN MAKING ROUTINE ADDITIONS IN REASSESSMENT U/S 148 IN THE ABSENCE OF ANY INCRIMINATING MATERIAL. 5 IN FACTS AND CIRCUMSTANCE OF THE CASE AND IN LAW, THE LEARNED ASSESSING OFFICER ERRED IN COMPLETING SEARCH ASSESSMENT U/S 1 43(3) RWS 148 WITHOUT FURNISHING COPY OF THE SATISFACTION RECORDED U/S 153 [C] 6 IN FACTS AND CIRCUMSTANCE OF THE CASE AND IN LAW, THE LEARNED ASSESSING OFFICER ERRED IN COMPLETING SEARCH ASSESSMENT U/S 143(3) RWS 148 AND HAS PASSED THE ORDER ON THE BASIS OF APPROVAL NOT GRANTED U/S 153D. 7 IN FACTS .AND CIRCUMSTANCE OF THE CASE AND IN LAW, THE LEARNED ASSESSING OFFICER ERRED IN COMPLETING SEARCH ASSESSMENT U/S 3 ITA NO. 384 / MUM/2019 ASSESSMENT YEAR: 201 0 - 1 1 143(3) RWS 148 ON THE BASIS OF ENCLOSED DOCUMENT SEIZED FROM AND BELONGING TO THE SAID MAAD GROUP BUT NOT FURNIS HING THE COPY OF THE SAME TO THE APPELLANT . 8 IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED A.O. ERRED IN INITIATING PENALTY U/S 271 (1) (C) AND CHARGING INTEREST U/S 234 A, B, C & D. 3 . THIS CASE WAS FIXED FOR HEARING ON 1 8.11.2020. HOWEVER, WHEN THE CASE WAS CALLED OUT FOR HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE. WE NOTICE D THAT THE ASSESSEE HAS SUBMITTED AN APPLICATION STATING THAT THE ASSESSEE HAS OPTED TO SETTLE THE DISPUTE UNDER VIVAD SE VISHWAS ACT, 2020, THE REFORE THE APPEAL MAY BE KEPT IN ABEYANCE. 4 . THE LD. DEPARTMENTAL REPRESENTATIVE DID NOT OPPOSE THE ASSESSEES APPLICATION. I N THE CASE OF M/S. NANNUSAMY MOHAN (HUF) VS . ACIT , THE HONBLE MADRAS HIGH COURT HAS DISMISSED THE APPEAL OF THE ASSESSEE AS WITH DRAWN IN WHICH THE COUNSEL HAD MADE THE SIMILAR SUBMISSIONS BEFORE THE HONBLE COURT. THE OBSERVATIONS OF THE HONBLE HIGH COURT ARE AS UNDER: - 3. THE LEARNED COUNSEL FOR THE APPELLANT / ASSESSEE, ON INSTRUCTIONS, SUBMITTED THAT THE APPELLANT / ASSESSEE INTENDS TO AVAIL THE BENEFIT OF VIVAD SE VISHWAS SCHEME (VVS SCHEME FOR BREVITY) AND IN THIS REGARD, THE ASSESSEE IS TAKING STEPS TO FILE THE APPLICATION / DECLARATION IN FORM NO. I. 4. IT MAY NOT BE NECESSARY FOR THIS COURT TO DECIDE THE SUBSTANTIAL QU ESTIONS OF LAW FRAMED FOR CONSIDERATION ON ACCOUNT OF CERTAIN SUBSEQUENT DEVELOPMENTS. THE GOVERNMENT OF INDIA ENACTED THE DIRECT TAX VIVAD SE VISHWAS ACT, 2020 (ACT 3 OF 2020) TO PROVIDE FOR RESOLUTION OF DISPUTED TAX AND FOR MATTERS CONNECTED THEREWITH O R INCIDENTAL THERETO. THE ACT OF THE PARLIAMENT RECEIVED THE ASSENT OF THE PRESIDENT ON 17 TH MARCH 2020 AND PUBLISHED IN THE GAZETTE OF INDIA ON 17 TH MARCH 2020. 5. IN TERMS OF THE SAID ACT, THE ASSESSEE HAS BEEN GIVEN AN OPTION TO PUT AN END TO THE TAX DISPUTES, WHICH MAY BE PENDING AT DIFFERENT LEVELS EITHER BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL OR BEFORE THE HIGH COURT OR BEFORE THE HON'BLE SUPREME COURT OF INDIA. UNDER SECTION 2(J) DISPUTED TAX HAS BEEN DEFINED. IN TERMS OF SEC TION 3, WHERE A DECLARANT MEANS A PERSON, WHO FILES A DECLARATION UNDER SECTION 4 ON OR 4 ITA NO. 384 / MUM/2019 ASSESSMENT YEAR: 201 0 - 1 1 BEFORE THE LAST DATE FILES A DECLARATION TO THE DESIGNATED AUTHORITY IN ACCORDANCE WITH THE PROV ISIONS OF SECTION 4 IN RESPECT OF TAX ARREARS, THEN, NOTWITHSTANDING ANY THING CONTAINED IN THE INCOME TAX ACT OR ANY OTHER LAW FOR THE TIME BEING IN FORCE, THE AMOUNT PAYABLE BY THE DECLARANT SHALL BE DETERMINED IN TERMS OF SECTION 3(A - C) THEREUNDER. 6. THE FIRST PROVISO TO SECTION 3 STATES THAT IN CASE, WHERE AN APPEAL OR W RIT PETITION OR SPECIAL LEAVE PETITION IS FILED BY THE INCOME TAX AUTHORITY ON ANY ISSUE BEFORE THE APPELLATE FORUM, THE AMOUNT PAYABLE SHALL BE ONE - HALF OF THE AMOUNT IN THE TABLE STIPULATED IN SECTION 3 CALCULATED ON SUCH ISSUE, IN SUCH A MANNER AS MAY B E PRESCRIBED. THE SECOND PROVISO DEALS WITH THE CASES, WHERE THE MATTER IS BEFORE THE COMMISSIONER (APPEALS) OR BEFORE THE DISPUTE RESOLUTION PANEL. THE THIRD PROVISO DEALS WITH CASES, WHERE THE ISSUE IS PENDING BEFORE THE INCOME TAX APPELLATE TRIBUNAL. TH E FILING OF THE DECLARATION IS AS PER SECTION 4 OF THE ACT AND THE PARTICULARS TO BE FURNISHED ARE ALSO MENTIONED IN THE SUB SECTIONS OF SECTION 4. SECTION 5 OF THE ACT DEALS WITH THE TIME AND MANNER OF THE PAYMENT AND SECTION 6 DEALS WITH IMMUNITY FROM IN ITIATION OF PROCEEDINGS IN RESPECT OF OFFENCE AND IMPOSITION OF PENALTY IN CERTAIN CASES. SECTION 9 OF THE ACT DEALS WITH CASES, WHERE THE ACT 3 OF 2020 WILL NOT BE APPLICABLE. 7. AS OBSERVED, THE ASSESSEE IS GIVEN LIBERTY TO RESTORE THIS APPEAL IN THE E VENT THE ULTIMATE DECISION TO BE TAKEN ON THE DECLARATION TO BE FILED BY THE ASSESSEE UNDER SECTION 4 OF THE SAID ACT IS NOT IN FAVOUR OF THE ASSESSEE. IF SUCH A PRAYER IS MADE, THE REGISTRY SHALL ENTERTAIN THE PRAYER WITHOUT INSISTING UPON ANY APPLICATION TO BE FILED FOR CONDONATION OF DELAY IN RESTORATION OF THE APPEAL AND ON SUCH REQUEST MADE BY THE ASSESSEE BY FILING A MISCELLANEOUS PETITION FOR RESTORATION, THE REGISTRY SHALL PLACE SUCH PETITION BEFORE THE DIVISION BENCH FOR ORDERS. 8. IN THE LIGHT OF THE ABOVE, WE DIRECT THE APPELLANT / ASSESSEE TO FILE THE FORM NO.I ON OR BEFORE 20.11.2020 AND THE COMPETENT AUTHORITY SHALL PROCESS THE APPLICATION / DECLARATION IN ACCORDANCE WITH THE ACT AND PASS APPROPRIATE ORDERS AS EXPEDITIOUSLY AS POSSIBLE PREFERA BLY WITHIN A PERIOD OF SIX (6) WEEKS FROM THE DATE ON WHICH THE DECLARATION IS FILED IN THE PROPER FORM. 5. SINCE THE ASSESSEE HAS OPTED TO SETTLE THE DISPUTE UNDER VIVAD SE VISHWAS ACT, 2020, WE RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF M/S. NANNUSAMY MOHAN (HUF) VS. ACIT 5 ITA NO. 384 / MUM/2019 ASSESSMENT YEAR: 201 0 - 1 1 (SUPRA) , DISMISS THE PRESENT APPEAL AS WITHDRAWN . HOWEVER, THE APPELLANT/ASSESSEE IS AT LIBERTY TO FILE MISCELLANEOUS APPLICATION FOR RESTORATION OF APPEAL AS DISCUSSED BY THE HONBLE MADRAS HIG H COURT IN PARAGRAPH 7 OF THE JUDGMENT. IN THE RESULT, APPEAL FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 201 0 - 201 1 IS DISMISSED. ORDER PRONOUNCED ON 23 RD NOVEMBER , 2020 UNDER RULE 34 (4) OF THE INCOME TAX APPELLATE TRIBUNAL RULES, 1963. SD/ - SD/ - ( SHAMIM YAHYA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 23 / 1 1 /2020 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. RE GISTRAR) , / ITAT, MUMBAI