M/S CONSUMER PACKAGING SERVICES PVT. LTD, Nagpur V. A.C.I.T. CIRCLE-2, Nagpur

ITA 400/NAG/2014

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5237 (ITAT-NAGPUR)
• Duration Of Justice: 4 year(s) 7 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 14-06-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 19-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: U U KASAR JT
• Assessee Lawyers: S C THAKAR; C J THAKAR
• Keywords: Search and seizure
• Section: 143(3); 80IB; 131; 139

Judgement Text

UKXIQJ , UKXIQJ IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH, NAGPUR . , , BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NOS.399 TO 404/NAG/2014 / ASSESSMENT YEARS : 200304 TO 200809 CONSUMER PACKAGING SERVICES PVT. LTD., DHADIWAL COMPLEX KATOL ROAD, CHHAONO, NAGPUR440013. PAN : AABCC4267F ....... / APPELLANT / V/S. ACIT, CIRCLE2, NAGPUR. / RESPONDENT ASSESSEE BY : SHRI C. J. THAKAR, ADV. & SHRI S. C. THAKAR, ADV. REVENUE BY : SHRI U. U. KASAR, JT.CIT / DATE OF HEARING : 27.03.2019 / DATE OF PRONOUNCEMENT : 29.03.2019 / ORDER PER BENCH : THERE ARE SIX APPEALS UNDER CONSIDERATION. ALL THESE SIX APPEALS ARE FILED BY THE ASSESSEE AGAINST THE COMMON ORDERS OF CIT(A)- I, NAGPUR DATED 28.05.2014 FOR THE DIFFERENT ASSESSMENT YEARS I.E. ASSESSMENT YEARS 2003-04 TO 200809 RESPECTIVELY. SINCE THE FACTS 2 ITA NOS.399 TO 404/NAG/2014 AND ISSUES ARE COMMON IN ALL THESE SIX APPEALS, THEREFORE, THEY WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMPOSITE ORDER. 2. SINCE THE FACTS, ISSUES AND ARGUMENTS ARE COMMON IN ALL THESE SIX APPEALS, THEREFORE, THE APPEAL IN ITA NO.399/NAG/2014 FOR THE ASSESSMENT YEAR 200304 TAKEN AS THE LEAD CASE. ITA NO.399/NAG/2014 (A.Y. 200304) 3. BEFORE US, AT THE OUTSET, DEVIATING FROM THE GROUNDS OF APPEAL, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS IS A CASE WHERE THE ASSESSMENT WAS COMPLETED U/S 143(3) R.W.S. 147 OF THE ACT. REFERRING TO THE SAID ASSESSMENT ORDER, LD. COUNSEL SUBMITTED THAT THE DISALLOWANCE OF RS.3,92,485/ WAS MADE U/S 80IB OF THE ACT WHICH WAS ALREADY ACCOUNTED IN THE BOOKS OF ACCOUNT. AS SUCH, NO SEIZURE MATERIAL WAS FOUND DURING THE SEARCH AND SEIZURE ACTION IN SUPPORT OF THE SAID ADDITION/DISALLOWANCE. FAIRLY REFERRING TO THE VARIOUS PARAGRAPHS OF THE ASSESSMENT ORDER, LD. COUNSEL SUBMITTED THAT THOUGH THERE WAS SEIZED MATERIAL IN GENERAL AND A STATEMENT WAS RECORDED U/S 131 OF THE ACT, THERE IS NO SEIZED OR INCRIMINATING EVIDENCES LINKED DIRECTLY OR INDIRECTLY RELATABLE TO THE ADDITION MADE BY THE ASSESSING OFFICER AMOUNTING TO RS.3,92,485/. FURTHER, HE 3 ITA NOS.399 TO 404/NAG/2014 SUBMITTED THAT THIS IS A CASE WHERE THE ASSESSEE FILED THE RETURN OF INCOME U/S 139 OF THE ACT ORIGINALLY ON 30.10.2004 AND THE ASSESSMENT WAS COMPLETED IN ALL RESPECTS. THUS, THE ASSESSMENT MADE BY THE ASSESSING OFFICER CONSTITUTES NON-ABATED ASSESSMENT. UNDER THESE FACTS, AS PER THE LD. COUNSEL FOR THE ASSESSEE, THE ADDITION MADE BY THE ASSESSING OFFICER CONSTITUTES A GENERAL ADDITION AND IS UNSUSTAINABLE IN LAW. THE LD. COUNSEL FOR THE ASSESSEE RELIED ON THE FOLLOWING JUDGEMENTS IN SUPPORT OF CASE OF THE ASSESSEE : (I) CIT V/S. DINSHAW FROZEN FOOD LTD., DT. 29.09.2007; (II) CIT V/S. PAUL BROTHERS, 216 ITR 548; (III) CIT V/S. SESA GOA LTD., 271 ITR 331; (IV) ITO V/S. ARIHANT TILES & MARBLES (P) LTD., 320 ITR 79; (V) ANWARKHAN MAHBOOB CO. V/S. STATE OF BOMBAY, DT. 20.09.1960; (VI) HAJEE ABDUL SHAKOOR AND CO. V/S. STATE OF MADRAS, DT. 07.05.1964; (VII) STATE OF MADRAS V/S. SWASTIK TOBACCO FACTORY, VEDARANYAM, DT. 14.12.1965; AND, (VIII) DURANDEL FOODS (P) LTD. V/S. ITO, 6 ITR 207. 4. ON THE OTHER HAND, LD. DR FOR THE REVENUE RELIED HEAVILY ON THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A). 5. ON HEARING BOTH THE SIDES ON THIS LEGAL ISSUE, WE FIND THE ADDITION MADE BY THE ASSESSING OFFICER HAS NO RELIANCE TO THE SEIZED 4 ITA NOS.399 TO 404/NAG/2014 MATERIAL FOUND DURING THE SEARCH AND SEIZURE ACTION. THERE IS NO DISPUTE ON THE FACT THAT THE ASSESSMENT UNDER CONSIDERATION IS NON ABATED ASSESSMENT (COMPLETED) AND THE ADDITION CAN BE MADE IN SUCH CASES OF ASSESSMENT WITH THE SUPPORT/STRENGTHEN OF A SEIZED MATERIAL ONLY. THE ABOVE REFERRED JUDGEMENTS ARE STRONGLY SUPPORTED IN FAVOUR OF THE ASSESSEE. ACCORDINGLY, THE LEGAL ISSUE RAISED BY THE ASSESSEE IN THE PRESENT APPEAL HAS TO BE ALLOWED IN FAVOUR OF THE ASSESSEE. 6. CONSIDERING THE ABOVE DECISION ON THE LEGAL ISSUE IN FAVOUR OF THE ASSESSEE, THE ADJUDICATION OF OTHER ISSUES RAISED BY THE ASSESSEE BECOMES ACADEMIC EXERCISE. ACCORDINGLY, THE SAME ARE DISMISSED AS ACADEMIC. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN ITA NO.399/NAG/2014 FOR THE ASSESSMENT YEAR 200304 IS ALLOWED. REST OF FIVE APPEALS 8. THE FACTS AND CIRCUMSTANCES OF THE CASES AND THE ISSUES RAISED IN THE APPEAL AS DISCUSSED IN PRELIMINARY ISSUE ABOVE ARE COMMON IN REST OF THE FIVE APPEALS. THEREFORE, WE ARE OF THE OPINION, THE ISSUES RAISED BY THE ASSESSEES IN THEIR RESPECTIVE GROUNDS OF APPEAL SHOULD BE ALLOWED. THE CONDITION SPECIFIED IN ITA NO.399/NAG/2014 FOR THE 5 ITA NOS.399 TO 404/NAG/2014 ASSESSMENT YEAR 200304 APPLIES MUTATIS-MUTANDIS IN REST OF FIVE APPEALS ALSO. 9. TO SUM UP, ALL THE SIX APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED ON 29 TH DAY OF MARCH, 2019. SD/- SD/- ( /VIKAS AWASTHY) ( . /D. KARUNAKARA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER UKXIQJ / NAGPUR; / DATED : 29 TH MARCH, 2019. SUJEET / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A) 4. THE CIT 5. , , UKXIQJ , UKXIQJ / DR, ITAT, NAGPUR BENCH, NAGPUR. 6. / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , UKXIQJ / ITAT, NAGPUR.