M/s Oriental Exports, V. ACIT,

ITA 46/BANG/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9510 (ITAT-BANGALORE)
• Duration Of Justice: 2 year(s) 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-08-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 27-07-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 10-01-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Principle of natural justice
• Section: 153A; 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NOS.46 & 47/BANG/2014 ASSESSMENT YEARS : 2007-08 & 2008-09 M/S. ORIENTAL EXPORTS, NO.21, ROHINI COMPLEX, HARSHA MAHAL ROAD, HASSAN. PAN: AAAFO 9768R VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1(2), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : NONE RESPONDENT BY : MS. NEERA MALHOTRA, CIT(DR) DATE OF HEARING : 27.07.2016 DATE OF PRONOUNCEMENT : 05.08.2016 O R D E R PER SUNIL KUMAR YADAV, JUDICIAL MEMBER THESE APPEALS ARE PREFERRED BY THE ASSESSEE AGAINS T THE COMMON ORDER DATED 07.10.2013 OF THE CIT(APPEALS)-VI, BANG ALORE FOR THE ASSESSMENT YEARS 2004-05 & 2007-08 ON THE FOLLOWING COMMON GROUNDS. FOR THE SAKE OF REFERENCE, THE GROUNDS RAISED IN IT A NO.46/BANG/2014 ARE EXTRACTED HEREUNDER:- ITA NOS.46 & 47/BANG/2014 PAGE 2 OF 5 1. THE ORDER OF THE LEARNED AUTHORITIES BELOW IN SO FAR AS IT IS AGAINST THE APPELLANT IS OPPOSED TO LAW, EQUITY, WEIGHT OF EVIDENCE, PROBABILITIES AND THE FACTS AND CIRCUMSTANCES IN TH E APPELLANT'S CASE. 2. THE APPELLANT DENIES ITSELF LIABLE TO BE ASSESSE D UNDER SECTION 153A R.W.S. 143[3] OF THE ACT UNDER THE IMPUGNED OR DER ON THE GROUND THAT:- I. THE SEARCH INITIATED IN THE CASE OF THE APPELLA NT IS ILLEGAL AND ULTRA VIRES THE PROVISIONS OF SECTION 132[1][A], [B ] & [C] OF THE ACT; II. THAT THE SEARCH IS CONDUCTED NOT ON THE BASIS OF ANY PRIOR INFORMATION OR MATERIAL INDUCING ANY BELIEF BUT PUR ELY ON THE SUSPICION AND THEREFORE, THE ACTION UNDER SECTION 1 32[2] IS BAD IN LAW [224 ITR 19 [SC] ] AND CONSEQUENT ASSESS MENT UNDER SECTION 153A IS NULL AND VOID-AB-INITO ON THE PARITY OF THE RATIO OF THE DECISION OF THE HON'BLE APEX COURT IN THE CASE OF AJITH JAIN, REPORTED IN 260 ITR 80. III. THE LEARNED AUTHORITIES BELOW HAS NOT DISCHAR GED THE BURDEN, OF PROVING THAT THERE IS A VALID INITIATION OF SEAR CH UNDER SECTION 132[1][A], [B] & [C] OF THE ACT, ITS EXECUT ION AND ITS COMPLETION IN ACCORDANCE WITH LAW TO RENDER THE PRO CEEDINGS VALID AND TO' ASSUME JURISDICTION TO MAKE AN ASSESS MENT UNDER SECTION 153A OF THE ACT. 3. THE LEARNED ASSESSING OFFICER FAILED TO APPRECIA TE THAT A VALID SEARCH IS A SINE QUA NON FOR MAKING A VALID ASSESSM ENT UNDER SECTION 153A OF THE ACT ON THE PARITY OF THE RATIO OF THE DECISION OF THE HON'BLE APEX COURT IN THE CASE OF AJIT JAIN, REPORTED IN 260 ITR 80 AND ALSO RELIANCE IS PLACED ON THE DECISION OF THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF C. RAMAIAH REDD Y VS. DCIT, REPORTED IN 339 ITR 210. 4. THUS THE ORDER OF ASSESSMENT PASSED BY THE LEARN ED ASSESSING OFFICER IS BAD IN LAW AS THE MANDATORY CONDITIONS T O INVOKE THE JURISDICTION U/S. 153A OF THE INCOME-TAX ACT, 1961 DID NOT EXIST OR HAVING NOT BEEN COMPLIED WITH AND CONSEQUENTLY T HE ASSESSMENT MADE IS BAD IN LAW FOR WANT OF REQUISITE JURISDICTION. ITA NOS.46 & 47/BANG/2014 PAGE 3 OF 5 5. THE ADDITIONS MADE BY THE LEARNED AUTHORITIES BE LOW IN THE ORDER OF ASSESSMENT PASSED UNDER SECTION 153A R.W.S. 143[ 3] OF THE ACT ARE NOT BASED ON THE MATERIALS FOUND DURING THE COU RSE OF SEARCH PROCEEDINGS AND HENCE THE ADDITION MADE REQUIRES TO BE DELETED UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. WITHOUT PREJUDICE THE APPELLANT DENIES ITSELF LI ABLE TO BE ASSESSED ON A TOTAL INCOME OF RS. 27,07,140/- AS DETERMINED BY THE LEARNED AUTHORITIES BELOW AS AGAINST THE INCOME REPORTED OF RS. 7,07,140/- BY THE APPELLANT, UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 7. THE LEARNED CIT[A] IS NOT JUSTIFIED IN LAW IN CO NFIRMING THE ADDITION OF RS.20,00,000/- MADE BY THE LEARNED ASSE SSING OFFICER AS UNACCOUNTED RECEIPTS UNDER THE PROVISIONS OF SEC TION 69A OF THE ACT UNDER THE FACTS AND CIRCUMSTANCES OF THE CA SE. 8. THE LEARNED CIT[A] FAILED TO APPRECIATE THE FACT THAT THE APPELLANT HAS NOT RECEIVED ANY ADDITIONAL MONEY OF RS.20,00,0 00/- FROM M/S. ANS GRANITES, SALEM ISSUED FROM THE ACCOUNT OF M/S. ICICI BANK, AS PER THE STATEMENT ALLEGED TO BE OBTAINED F ROM M/S. ANS GRANITES UNDER THE FACTS AND CIRCUMSTANCES OF THE C ASE. 9. WITHOUT PREJUDICE THE LEARNED AUTHORITIES BELOW ARE NOT JUSTIFIED IN LAW IN NOT GIVING THE APPELLANT AN OPPORTUNITY T O CROSS EXAMINE M/S. ANS GRANITES, SALEM WHICH IS AGAINST THE PRINC IPLES OF NATURAL JUSTICE. 10. THE LEARNED CIT[A] FAILED TO APPRECIATE THE FAC T THAT THE LEARNED ASSESSING OFFICER OUGHT NOT TO HAVE RELIED UPON AN UNSIGNED STATEMENT ISSUED BY M/S. ANS GRANITES WHICH DO NOT HAVE ANY CREDENTIAL OR EVIDENTIARY VALUE UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 11. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER A S PER THE PARITY OF REASONING OF THE DECISION OF THE HON'BLE APEX COURT IN THE CASE OF KARANVIR SINGH 349 ITR 692, THE APPELLANT DENIES IT SELF LIABLE TO BE CHARGED TO INTEREST UNDER SECTION 234 A, 234B & 234D OF THE INCOME TAX ACT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. FURTHER THE LEVY OF INTEREST UNDER SECTION 234A. 23 4B & 234D OF THE ACT IS ALSO BAD IN LAW AS THE PERIOD, RATE, QUA NTUM AND METHOD OF CALCULATION ADOPTED ON WHICH INTEREST IS LEVIED ARE ALL NOT DISCERNABLE AND ARE WRONG ON THE FACTS OF THE CASE. ITA NOS.46 & 47/BANG/2014 PAGE 4 OF 5 12. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, SUBST ITUTE, AMEND OR DELETE ANY OR ALL OF THE GROUNDS OF APPEAL URGED AB OVE. 13. FOR THE ABOVE AND OTHER GROUNDS TO BE URGED DUR ING THE HEARING OF THE APPEAL THE APPELLANT PRAYS THAT THE APPEAL BE A LLOWED IN THE INTEREST OF EQUITY AND JUSTICE. 2. THESE APPEALS WERE LISTED FOR HEARING ON 27.07.2 016, BUT NONE APPEARED ON BEHALF OF THE ASSESSEE, DESPITE SERVICE OF NOTICE OF HEARING. SINCE NONE APPEARED ON BEHALF OF THE ASSESSEE, WE H AVE NO OTHER OPTION, EXCEPT TO HEAR THE APPEALS EX PARTE , QUA THE ASSESSEE. 3. WE HAVE CAREFULLY EXAMINED THE ORDERS OF THE CIT (APPEALS) ON ALL THE GROUNDS RAISED BEFORE ME AND WE FIND THAT THE C IT(APPEALS) HAS ADJUDICATED ALL THE GROUNDS IN DETAIL IN HIS ORDER. SINCE NO DEFECT HAS BEEN POINTED OUT IN THE ORDER OF THE CIT(APPEALS), WE CONFIRM THE SAME. 4. IN THE RESULT, THE APPEALS BY THE ASSESSEE ARE D ISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS 5 TH DAY OF AUGUST, 2016. SD/- SD/- ( A.K. GARODIA ) (SUNIL KUMAR YA DAV ) ACCOUNTANT MEMBER JUDIC IAL MEMBER BANGALORE, DATED, THE 5 TH AUGUST, 2016. /D S/ ITA NOS.46 & 47/BANG/2014 PAGE 5 OF 5 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.