ACIT 20(1), MUMBAI V. ARCHIE ABRAHAM, MUMBAI

ITA 4515/MUM/2010

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71950 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-12-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 17-12-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 01-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHISH KEDIA
• Keywords: Tax effect
• Section: 153A; 2; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ./I.T.A. NO.4511/M/2010 (AY: 2002 - 2003) ./I.T.A. NO.4512/M/2010 (AY: 2003 - 2004) ./I.T.A. NO.4513/M/2010 (AY: 2004 - 2005) ./I.T.A. NO.4515/M/2010 (AY: 2006 - 2007) ACIT - 21(1), R. NO.603, 6 TH FLOOR, PIRAMAL CHAMBER, PAREL, MUMBAI - 400 012. / VS. SHRI ARCHIE ABRAHAM, E - 703/ 704, RAMIBIZ COURT, OFF. VEERA DESAI ROAD, ANDHERI (W), MUMBAI 400 053. ./ PAN : AAFPA 5621 A ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI ASHISH KEDIA / RESPONDENT BY : SHRI SANTOSH KUMAR, DR / DATE OF HEARING : 17.12.2013 / DATE OF PRONOUNCEMENT : 17.12.2013 / O R D E R PER BENCH : THERE ARE FOUR APPEALS UNDER CONSIDERATION. ALL THESE APPEALS ARE FILED BY THE REVENUE ON 1.6.2010 AGAINST THE ORDER OF CIT (A) - 31, MUMBAI DATED 15.3.2010 FOR THE AYS 2002 - 03 TO 2004 - 05 AND 2006 - 07. SINCE, THE IDENTICAL ISSUES ARE INVOLVED IN ALL THESE FOUR APPEALS, T HEREFORE, FOR THE SAKE OF CONVENIENCE, THEY ARE CLUBBED, HEARD COMBINEDLY AND BEING DISPOSED IN THIS CONSOLIDATED ORDER. 2. SINCE , THE GROUNDS RAISED IN ALL THE FOUR AP PEALS ARE IDENTICAL AND THE ONLY DIFFERENCE IS IN FIGURES, THEREFORE, FOR THE SAKE OF C ONVENIENCE WE SHALL TAKE UP THE GROUNDS RAISED BY THE REVENUE WITH REGARD TO THE AY 2002 - 2003, WHICH READ AS UNDER: 1. THE LD CIT (A) HAS ERRED ON FACTS AND IN LAW AND IN THE CIRCUMSTANCES OF THE CASE IN DELETING THE ADDITION OF RS. 18,000/ - MADE BY THE A O ON ACCOUNT OF LOANS NOT PROVED GENUINE TREATED AS UNDISCLOSED INCOME, HOLDING THAT AO HAS NO JURISDICTION OR POWER TO INITIATE PROCEEDINGS UNDER SECTION 153A / 153C OF THE IT ACT, 1961. HE ALSO ERRED IN HOLDING THAT THE ABOVE LOANS ARE ALREADY DISCLOSED IN ITS RETURNS FILED U/S 139(1). 2 2. THE LD CIT (A) HAS ERRED ON FACTS AND IN LAW AND IN THE CIRCUMSTANCES OF THE CASE IN ARRIVING AT THE DECISION IN THE LIGHT OF THE DECISION BY HONBLE ITAT, DELHI IN ITA NO.2660 TO 2665/DEL/2009 DATED 1.1.2010 IN THE CAS E OF SHRI ANIL KUMAR BHATIA AND IN THE CASE OF MEGHMANI ORGANICS LTD 38 DTR 187 (AHMEDABAD) BY HONBLE ITAT, AHMEDABAD, AS THE FACTS OF THE CASE ARE DIFFERENT FROM THE PRESENT CASE. 3. THE LD CIT (A) HAS FAILED TO APPRECIATE THE INTENTION OF THE LEGISLATUR E THAT ONCE THE SEARCH IS CONDUCTED AND NOTICES U/S 153A OR 153C IS SERVED THEN THE PROVISIONS OF SECTION 153A(1)(A) COMES INTO PICTURE, WHICH SPECIFICALLY LAYS DOWN THAT THE RETURNS FILED IN RESPONSE TO THE NOTICE SHALL BE TREATED AS IF IT HAS BEEN FILED U/S 139 OF THE IT ACT. FURTHER, NOT A SINGLE WORD OF SECTION 153A SUGGESTS THAT PROVISIONS OF THIS SECTION ARE WITH REFERENCE TO SEIZED MATERIAL FOUND DURING THE COURSE OF SEARCH, AS ALSO THERE IS NO PRE CONDITION OF PENDING ASSESSMENT THAT THERE SHOULD B E A SPECIFIC MATERIAL FOUND FOR EACH ASSESSMENT YEAR DURING THE COURSE OF SEARCH AND THAT THE AO CANNOT EXERCISE RIGHTS FOR WHICH HE IS EMPOWERED WITHIN THE MEANING OF SECTION 153A(1)(A) OF THE ACT. 4. ON THE ABOVE GROUNDS, THE ORDER OF THE CIT (A) BE SET ASIDE AND THAT OF THE AO BE RESTORED. 3 . AS PER THE INSTRUCTIONS ISSUED BY THE CBDT, MINIMUM MONETARY LIMIT IS FIXED FOR FILING THE APPEAL BEFORE THE TRIBUNAL. IN THE PRESENT 4 APPEALS UNDER CONSIDERATION , QUANTUM OF PENALTY IS BELOW RS. 3 LAKHS . THE C.B.D.T. HAS ISSUED INSTRUCTIONS TO ALL THE CHIEF COMMISSIONERS/COMMISSIONERS THAT WHERE THE TAX EFFECT IS LESS THAN RS. 3 LAKHS, THEN THE APPEAL SHOULD NOT BE FILED IN THE TRIBUNAL. MOREOVER, INSTRUCTIONS ISSUED BY THE CBDT PUTTING CEILING FOR APPROA CHING THE TRIBUNAL HAS BEEN CONSIDERED BY HONBLE HIGH COURT OF BOMBAY IN THE CASE OF CIT VS. PITHWA ENGINEERING 276 ITR 519 AND HELD THAT INSTRUCTION IS APPLICABLE TO PENDING APPEALS ALSO. MOREOVER IN THE CASE OF MADHUKAR K. INAMADAR 318 ITR 149 (BOM) TH EIR LORDSHIPS HAVE HELD THAT THE CIRCULAR NO.3 OF THE CBDT DATED 09.01.2011 IS APPLICABLE TO THE APPEALS PENDING FOR ADMISSION OR FOR FINAL DISPOSAL. WE, THEREFORE, RESPECTFULLY FOLLOWING THE DECISIONS OF THE HONBLE J URISDICTIONAL HIGH COURT ( SUPRA ) , DIS MISS ALL THE 4 APPEAL S FILED BY THE R EVENUE AS NOT MAINTAINABLE. 4. IN THE RESULT, ALL THE FOUR APPEALS FILED BY THE R EVENUE ARE DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH DECEMBER, 2013 IMMEDIATELY AFTER COMPLETION OF HEARING. S D / - S D / - (SANJAY GARG) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 17 .12 .2013 . . ./ OKK , SR. PS 3 / 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 . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI