SUNIL ARYA, CHENNAI V. ACIT CEN CIR 17 & 28, MUMBAI

ITA 4360/MUM/2009

• Counselvise Citation: 436019914 RSA 2009
• Duration Of Justice: 2 year(s) 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 26-12-2011
• Assessment Year: 2000-2001
• Appeal Filed On: 17-07-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAIBIR SINGH
• Keywords: Search and seizure; Assessment record
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E MUMBAI BEFORE SHRI B.R. MITTAL (JUDICIAL MEMBER) AND SHRI J. SUDHAKAR REDDY (ACCOUNTANT MEMBER) ITA NOS.4360 TO 4364/MUM/2009 ASSESSMENT YEARS-2000-01 TO 2004-05 SHRI SUNIL ARYA, NO. 15 (NEW 31) ARMENIAN STREET, CHENNAI-600 001 PAN ABMPA 2292F VS. THE ACIT, CEN. CIR. 17 & 28, MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI VIJAY MEHTA RESPONDENT BY: SHRI SAIBIR SINGH DATE OF HEARING : 26.12.2011 DATE OF PRONOUNCEMENT:26.12.20111 O R D E R PER BENCH THE ASSESSEE HAS FILED THESE APPEALS FOR ASSESSMEN T YEARS 2000-01 TO 2004-05 AGAINST ORDERS OF LD. CIT(A) ALL DT. 13 TH MAY, 2009, ARISING OUT OF ASSESSMENT ORDERS PASSED U/S. 143(3) R.W.S 153C OF I.T. ACT. 2. AT THE TIME OF HEARING, LD. AR SUBMITTED THAT TH ERE WAS A SEARCH AND SEIZURE ACTION U/S. 132 OF THE ACT AT THE OFFICE PR EMISES OF M/S. ECONOMIC TRANSPORT ORGANISATION, WESTERN ARYA TRANSPORT GROU P OF CASES. ASSESSEE IS A PARTNER IN M/S. ECONOMIC TRANSPORT ORGANISATION. HE SUBMITTED THAT THERE WAS NO SATISFACTION NOTE RECORDED BY AO OF THE PERS ONS SEARCHED TO INITIATE PROCEEDINGS AGAINST THE ASSESSEE AND THEREFORE ASSE SSMENT ORDERS ARE NOT VALID. LD. AR RELYING ON THE DECISION OF APEX COUR T IN THE CASE OF MANISH MAHESHWARI V. ASST. COMMISSIONER OF INCOME-TAX 289 ITR 341 SUBMITTED THAT PROCEEDINGS AGAINST A PERSON OTHER THAN PERSON SEAR CHED COULD BE INITIATED ITA NOS. 4360 TO 64/M/09 2 ONLY AFTER SATISFACTION OF AO OF SEARCHED PERSON MA DE. THE AR SUBMITTED THAT LD. DEPARTMENTAL REPRESENTATIVE HAS BEEN GIVEN NUMB ER OF OPPORTUNITIES TO PRODUCE SATISFACTION NOTE OF THE AO BUT SAME HAS NO T BEEN PRODUCED TILL DATE. THEREFORE ASSESSMENT ORDERS PASSED FOR ASSESSMENT Y EARS UNDER CONSIDERATION AGAINST THE ASSESSEE SHOULD BE QUASHE D. ON THE OTHER HAND, LD. DR SUBMITTED THAT THIS IS THE NEW GROUND TAKEN BY ASSESSEE FOR THE FIRST TIME BEFORE TRIBUNAL AND RELYING ON THE DECISION OF HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME-TA X VS. TOLLARAM HASSOMAL 298 ITR 22 SUBMITTED THAT MATTER SHOULD BE REMANDED TO LD. CI T(A) TO CONSIDER THE SAME AFRESH. HE FURTHER SUBMITTED THAT AO OF SEARCHED PERSON IS AT KOLKATA AND REQUISITE ASSESSMENT RECORD IS AWAIT ED. 2.1 LD. AR SUBMITTED THAT HE HAS NO OBJECTION TO RE STORE THE MATTER TO LD. CIT(A) FOR HIS FRESH CONSIDERATION TO ADJUDICATE TH E LEGAL GROUND TAKEN BEFORE THE TRIBUNAL FOR THE FIRST TIME. HE SUBMITTED THAT MATTER PERTAINS TO ASSESSMENT YEARS 2000-01 AND ONWARDS, LD. CIT(A) MAY BE DIRECT ED TO DECIDE THESE APPEALS EXPEDITIOUSLY. 3. WE HAVE CONSIDERED THE SUBMISSIONS OF LD. REPRES ENTATIVES OF THE PARTIES AND ORDERS CITED BEFORE US (SUPRA). WE AGR EE WITH LD. AR THAT SATISFACTION OF AO OF THE PERSON SEARCHED MUST BE R ECORDED TO THE EFFECT THAT THERE IS UNDISCLOSED INCOME BELONGING TO ANY PERSON OTHER THAN THE PERSON IN RESPECT OF WHOM SEARCH WAS MADE U/S. 132 OF THE ACT . HOWEVER, NO SUCH NOTE OF SATISFACTION OF AO OF THE SEARCHED PERSON I S PLACED ON RECORD. WE ALSO OBSERVE THAT SAID GROUND IS TAKEN BY ASSESSEE FOR THE FIRST TIME BEFORE TRIBUNAL. WE FIND SUBSTANCE IN THE SUBMISSION OF L D. DR THAT IF AN ADDITIONAL GROUND IS TAKEN FOR THE FIRST TIME BEFORE TRIBUNAL, HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF CIT VS TOLLARAM HASSOMAL ( SUPRA) HAS HELD THAT THE TRIBUNAL SHOULD REMAND CASE TO LD. CIT(A) TO DE CIDE THE ADDITIONAL GROUND ON MERIT. CONSIDERING ABOVE DECISION AND THE FACT THAT DEPARTMENT HAS NOT PLACED ON RECORD SATISFACTION NOTE OF AO OF THE SEA RCHED PERSON TO INITIATE ASSESSMENT PROCEEDINGS AGAINST THIS ASSESSEE I.E. P ERSON OTHER THAN PERSON SEARCHED, WE CONSIDER IT PRUDENT TO RESTORE THIS IS SUE TO THE FILE OF LD. CIT(A) TO DECIDE THE SAME ON MERITS IN ACCORDANCE WITH LAW , AFTER GIVING DUE ITA NOS. 4360 TO 64/M/09 3 OPPORTUNITY OF HEARING TO THE PARTIES. SINCE THIS ISSUE GOES TO THE ROOT OF ASSESSMENT ORDERS PASSED FOR ALL THE ASSESSMENT YEA RS UNDER CONSIDERATION VIZ. ASSESSMENT YEARS 2000-01 TO 2004-05, WE DO NOT CONSIDER IT NECESSARY TO DECIDE OTHER GROUNDS DISPUTING CONFIRMATION OF ADD ITIONS MADE BY AO. 4. IN VIEW OF ABOVE, ALL THE APPEALS OF ASSESSEE FO R ASSESSMENT YEARS 2000-01 TO 2004-05 ARE ALLOWED FOR STATISTICAL PURP OSES. 5. BEFORE WE PART WITH THESE APPEALS, WE MAY STATE THESE APPEALS RELATE TO ASSESSMENT YEARS 2000-01 TO 2004-05, LD. CIT(A) WILL DECIDE THESE APPEALS EXPEDITIOUSLY, PREFERABLY WITHIN A PERIOD O F 6 MONTHS FROM THE DATE OF RECEIPT OF THIS ORDER. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING I.E. ON 26 TH DECEMBER, 2011 SD/- SD/- ( J. SUDHAKAR REDDY) (B.R. MITTAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 26 TH DECEMBER,2011 RJ COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR E BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI