Bakliwal Holding Pvt Ltd, West Bengal V. Pr,CIT (Central)-3, New Delhi

ITA 392/DEL/2021

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 2718 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 25-02-2024
• Assessment Year: 2013-2014
• Appeal Filed On: 06-04-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revision of order; Assessment record
• Section: 263; 143(3); 142(1); 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : A : NEW DELHI BEFORE SHRI G.S. PANNU, HON’BLE VICE PRESIDENT AND SHRI ANUBHAV SHARMA, JUDICIAL MEMBER ITA No.2843/Del/2022 Assessment Year: 2012-13 DCIT, Central Circle-30, New Delhi Bakliwal Holding Pvt. Ltd., 516, RN Guha Road, Kolkata, Park Street H.O., Kolkata, West Bengal – 700 016. PAN: AABCB0328E ITAs No.391 & 392/Del/2021 Assessment Years: 2012-13 & 2013-14 Bakliwal Holding Pvt. Ltd., Subash Agarwal & Associates, Advocates, Siddha Gibson, 1, Gibson Lane, Suite 213, 2 nd Floor, Kolkata– 700 069, West Bengal. PAN: AABCB0328E Vs. Pr. CIT (Central)-3, New Delhi. (Appellants) (Respondents) Assessee by : Shri Subhash Agarwal, CA Revenue by : Shri Zafarul Haque Tanweer, CIT-DR Date of Hearing : 26.02.2024 Date of Pronouncement : 30.04.2024 ORDER PER ANUBHAV SHARMA, JM: These are appeals preferred by both the Revenue and the assessee against the orders of the Commissioner of Income Tax (Appeals) (hereinafter referred ITAs No.2843/Del/2022; & ITAs No.391 & 392/Del/2021 2 to as Ld. First Appellate Authority or ‘the ld. FAA’ for short)/Pr. Commissioner of Income-tax (Ld. PCIT) in appeals filed before them against the orders of the ld. Assessing Officer (hereinafter referred to as the Ld. AO, for short). Further details of the orders of the lower authorities are as under:- ITA No. CIT(A)/PCIT who passed the order Appeal No. & Date of order of the CIT(A) AO who passed the assessment order & Date of order Section of the IT Act under which the AO passed the order 2843/Del/2022 CIT(A)-31, New Delhi 1144/22-23 date 22.09.2022 DCIT, Central Cir.30, New Delhi, date 29.12.2021 263 R.w.s. 153C 391/Del/2021 Pr. CIT (Central), Delhi-3 PCIT (Central), Delhi-3/ Revision- 263 /100000168299/2021 ACIT, Central Cir.30, New Delhi, date 27.12.2018 153C/ 143(3) 392/Del/2021 - Do - PCIT (Central), Delhi-3/ Revision- 263 /100000168298/2021 - Do - - Do - 2. Heard and perused the record. 2.1 On hearing the ld. AR, it comes up that ITAs No.391 & 392/Del/2021 arise out of the order passed u/s 263 of the Act. The ld. PCIT, on the basis of assessment record had examined the receipt of loan of Rs.3.50 crores from M/s Beefin Commodities Ltd. and Rs.12.50 crores from M/s Jajodia Finance Ltd. in AY 2012-13; and Rs.11.50 crores in AY 2013-14. The PCIT examined the same on the basis of Investigation Wing, Kolkata inputs and had concluded that the AO had not made independent verification/inquiry. The ld. AR, however, canvassed that the AO had issued notice u/s 142(1) of the Act and requisite ITAs No.2843/Del/2022; & ITAs No.391 & 392/Del/2021 3 details along with confirmations were filed before the AO. However, what is material is that the assessment was completed on 27.12.2018 u/s 153C r.w.s. 143(3) of the Act. Thus, it was a case of unabated assessment which had attained finality on the date of search. The law in this regard being that no addition over and above originally assessed income can be made unless there is incriminating material found for the said year during the course of search. It comes up from the order of the ld.PCIT that this objection of the assessee was not sustained for the reason that Revenue had preferred SLP before the Hon’ble Supreme Court in the case of M/s Apar Industries Ltd. However, now the issue stands squarely covered after the judgement of the Hon’ble Supreme Court in the case of PCIT vs. Abhisar Buildwell Pvt. Ltd. (2023) 149 taxmann.com 399. 3. We are in agreement with the contention of the ld. AR that when the invocation of jurisdiction itself by the AO was invalid, by exercising powers u/s 263 of the Act, the PCIT could not have infused life in an assessment order void ab initio. Thus impugned assessment order could not have been subject matter of revisional jurisdiction u/s 263 of the Act. 4. The aforesaid findings when applied pari materia to the Revenue’s appeal in ITA No.2843/Del/2022, on the one hand make the effect giving order dated 19.12.2021, which was subject matter of appeal before the CIT(A) giving rise to the present appeal of the Revenue redundant. On the other hand, we are ITAs No.2843/Del/2022; & ITAs No.391 & 392/Del/2021 4 satisfied that the CIT(A) has duly appreciated the evidences like giving a categorical finding on the basis of evidences that the assessee was able to discharge the onus with regard to the identity, genuineness and credit worthiness of the creditors. We find no substance in the grounds of the Revenue. 5. Accordingly, the appeals of the assessee are allowed and the appeal of the Revenue is dismissed. Order pronounced in the open court on 30.04.2024. Sd/- Sd/- (G.S. PANNU) (ANUBHAV SHARMA) VICE PRESIDENT JUDICIAL MEMBER Dated: 30 th April, 2024. dk Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asstt. Registrar, ITAT, New Delhi