Smt. Vandana Pandey , Kanpur V. Dy. Commissioner of Income Tax , Kanpur

ITA 47/LKW/2013

• Counselvise Citation: 4723714 RSA 2013
• Duration Of Justice: 2 year(s) 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 07-07-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 28-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR A K SINGH
• Keywords: Sale consideration of property below Jantri Value
• Section: 143(3); 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.47/LKW/2013 ASSESSMENT YEAR:2003-04 SMT. VANDANA PANDEY 133/88, M BLOCK KIDWAI NAGAR, KANPUR V. DCIT CENTRAL CIRCLE V KANPUR TAN/PAN:ACLPP5250C (APPELLANT) (RESPONDENT) S.P. 06/LKW/2015 [ARISING OUT OF ITA NO.47/LKW/2013] ASSESSMENT YEAR:2003-04 SMT. VANDANA PANDEY 133/88, M BLOCK KIDWAI NAGAR, KANPUR V. DCIT CENTRAL CIRCLE V KANPUR TAN/PAN:ACLPP5250C (APPLICANT) (RESPONDENT) ITA NO.762/LKW/2014 ASSESSMENT YEAR:2004-05 SMT. VANDANA PANDEY 133/88, M BLOCK KIDWAI NAGAR, KANPUR V. DCIT CENTRAL CIRCLE V KANPUR TAN/PAN:ACLPP5250C (APPELLANT) (RESPONDENT) S.P. 07/LKW/2015 [ARISING OUT OF ITA NO.762/LKW/2014] ASSESSMENT YEAR:2004-05 SMT. VANDANA PANDEY 133/88, M BLOCK KIDWAI NAGAR, KANPUR V. DCIT CENTRAL CIRCLE V KANPUR TAN/PAN:ACLPP5250C (APPLICANT) (RESPONDENT) :- 2 -: ITA NO.586/LKW/2014 ASSESSMENT YEAR:2006-07 SMT. VANDANA PANDEY 133/88, M BLOCK KIDWAI NAGAR, KANPUR V. DCIT CENTRAL CIRCLE IV KANPUR TAN/PAN:ACLPP5250C (APPELLANT) (RESPONDENT) S.P. 05/LKW/2015 [ARISING OUT OF ITA NO.586/LKW/2014] ASSESSMENT YEAR:2006-07 SMT. VANDANA PANDEY 133/88, M BLOCK KIDWAI NAGAR, KANPUR V. DCIT CENTRAL CIRCLE IV KANPUR TAN/PAN:ACLPP5250C (APPLICANT) (RESPONDENT) ITA NO.585/LKW/2014 ASSESSMENT YEAR:2002-03 SHRI. SATISH CHAND PANDEY 133/88, M BLOCK KIDWAI NAGAR, KANPUR V. DCIT CENTRAL CIRCLE IV KANPUR TAN/PAN:ACJPP7982K (APPELLANT) (RESPONDENT) S.P. NO.04/LKW/2015 [ARISING OUT OF ITA NO.585/LKW/2014] ASSESSMENT YEAR:2002-03 SHRI. SATISH CHAND PANDEY 133/88, M BLOCK KIDWAI NAGAR, KANPUR V. DCIT CENTRAL CIRCLE IV KANPUR TAN/PAN:ACJPP7982K (APPLICANT) (RESPONDENT) ASSESSEE BY: SHRI. ABHINAV MEHROTRA, ADVOCATE DEPARTMENT BY: DR. A. K. SINGH, CIT (DR) DATE OF HEARING: 09 07 2015 DATE OF PRONOUNCEMENT: 07 2015 :- 3 -: O R D E R PER SUNIL KUMAR YADAV: THESE APPEALS ALONG WITH STAY PETITIONS ARE LISTED FOR HEARING. SINCE THE ARGUMENTS ON THE APPEALS WERE HEARD, THE STAY PETITIONS HAVE BECOME INFRUCTUOUS AND WE ACCORDINGLY DISMISS THE SAME FINDING NOT MERIT THEREIN. 2. IN I.T.A. NO. 762/LKW/2014, THERE WAS A DELAY OF 4 DAYS IN FILING OF THE APPEAL. SINCE THE ASSESSEE HAS SATISFACTORILY EXPLAINED THE REASON FOR DELAY IN FILING OF THE APPEAL, WE CONDONE THE DELAY AND ADMIT THE APPEAL FOR HEARING. 3. SO FAR AS THE MERIT OF THESE APPEALS ARE CONCERNED, THE ASSESSEES HAVE RAISED A PRELIMINARY OBJECTION IN THESE APPEALS THAT THE ASSESSMENT UNDER SECTION 153A OF THE INCOME-TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT') WAS FRAMED CONSEQUENT TO THE SEARCH CONDUCTED UNDER SECTION 132 OF THE ACT. THE LD. COUNSEL FOR THE ASSESSEE HAS, HOWEVER, CONTENDED THAT DURING THE COURSE OF SEARCH NO INCRIMINATING MATERIAL WAS FOUND, THEREFORE, THE ASSESSMENT UNDER SECTION 153A OF THE ACT IS NOT POSSIBLE ON THE BASIS OF THE INFORMATION FURNISHED BY THE ASSESSEE. IN SUPPORT OF HIS CONTENTION, THE LD. COUNSEL FOR THE ASSESSEE HAS PLACED RELIANCE UPON THE ORDER OF THIS BENCH OF THE TRIBUNAL IN THE CASE OF SHRI. ANURAG PANDEY VS. DCIT IN I.T.A. NO. 165/LKW/2014, BUT DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE COULD NOT STATE SPECIFICALLY WHETHER THE ORIGINAL ASSESSMENT CONSEQUENT TO THE RETURN FILED UNDER SECTION 143(3) OF THE ACT WAS COMPLETED OR IT WAS PENDING AND WAS ABATED CONSEQUENT TO THE SEARCH CONDUCTED UNDER SECTION 132 OF THE ACT AND ASSESSMENT FRAMED UNDER SECTION 153A OF THE ACT. IN THIS REGARD, THE LD. COUNSEL FOR THE ASSESSEE HAS AGREED THAT LET THE MATTER BE SET ASIDE TO THE ASSESSING OFFICER WITH A DIRECTION TO VERIFY THESE FACTS AND IN CASE IT IS ESTABLISHED THAT THE ORIGINAL :- 4 -: ASSESSMENT WAS COMPLETED CONSEQUENT TO THE RETURN FILED UNDER SECTION 143(3) OF THE ACT, THE ASSESSMENT UNDER SECTION 153A OF THE ACT CANNOT BE FRAMED CONSEQUENT TO THE SEARCH UNDER SECTION 132 OF THE ACT, IN WHICH NO INCRIMINATING MATERIAL WAS FOUND AND ADDITION WAS MADE ON THE BASIS OF THE INFORMATION FURNISHED BY THE ASSESSEE. 4. THIS PROPOSITION WAS NOT OBJECTED TO BY THE LD. D.R. 5. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES AND THE ORDER OF THE TRIBUNAL IN THE CASE OF SHRI. ANURAG PANDEY VS. DCIT (SUPRA) IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT IN THAT CASE THE TRIBUNAL HAS TAKEN A VIEW THAT IF THE ASSESSMENT UNDER SECTION 153A OF THE ACT IS FRAMED CONSEQUENT TO THE SEARCH CONDUCTED UNDER SECTION 132 OF THE ACT, IN WHICH NO INCRIMINATING MATERIAL WAS FOUND AND THE ASSESSMENT WAS FRAMED ON THE BASIS OF THE INFORMATION FURNISHED BY THE ASSESSEE UNDER SECTION 153A OF THE ACT, THE ASSESSMENT IS UNSUSTAINABLE IN THE EYES OF LAW. THE RELEVANT OBSERVATIONS OF THE TRIBUNAL ARE EXTRACTED HEREUNDER FOR THE SAKE OF REFERENCE:- 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. FIRST WE TAKE UP THE APPEAL OF ANURAG PANDEY FOR ASSESSMENT YEAR 2001-2002 IN I.T.A. NO.165/LKW/2012. IN THIS CASE, ONLY ONE ADDITION WAS MADE BY THE ASSESSING OFFICER OF RS.1,35,110/- BY ALLEGING THAT AS PER CASH FLOW STATEMENT FILED BY THE ASSESSEE IN COURSE OF ASSESSMENT PROCEEDINGS FOR THIS YEAR, THE ASSESSEE HAS SHOWN RS.1,35,110/- AS BROUGHT FORWARD CASH BALANCE BUT THE ASSESSEE COULD NOT PRODUCE ANY DIRECT EVIDENCE TO PROVE THE AVAILABILITY OF CASH. THE CIT(A) HAS REPRODUCED THE CASH FLOW STATEMENT FOR ASSESSMENT YEAR 2000-01 ON PAGE NO. 3 OF HIS ORDER. IN THIS CASE, SEARCH U/S 132 OF THE ACT WAS CARRIED OUT IN PANDEY GROUP OF CASES ON 19/04/2006. RETURN FOR ASSESSMENT YEAR 2001-02 WAS FILED BY ANURAN PANDEY ON 31/10/2001 DECLARING TOTAL INCOME AT RS.84,981/- AS NOTED BY THE ASSESSING OFFICER IN PARA 3 OF THE ASSESSMENT ORDER BECAUSE IN REPLY TO NOTICE, ISSUED BY THE ASSESSING OFFICER U/S 153 C, IT WAS SUBMITTED BY THE :- 5 -: ASSESSEE THAT THE SAID RETURN FILED ON 31/10/2001 MAY BE TREATED AS RETURN FILED IN RESPONSE TO THIS NOTICE. THIS IS NOT THE CASE OF THE ASSESSING OFFICER THAT ASSESSMENT PROCEEDINGS FOR THIS ASSESSMENT YEAR WAS PENDING ON THE DATE OF SEARCH AND HENCE, THE ASSESSMENT HAS ABATED. NOW THIS IS SETTLED POSITION OF LAW AS PER THE DECISION OF SPECIAL BENCH OF THE TRIBUNAL RENDERED IN THE CASE OF ALL CARGO GLOBAL LOGISTICS VS. DCIT 137 ITD 287 (MUM) (SB) THAT IN THOSE ASSESSMENT YEARS WHERE THE ASSESSMENT HAS NOT ABATED, THE ASSESSMENT U/S 153 A WILL BE MADE ON THE BASIS OF INCRIMINATING MATERIAL FOUND DURING SEARCH. IN THE PRESENT CASE, THIS IS NOT THE CASE OF THE ASSESSING OFFICER THAT ANY INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH FOR THIS ASSESSEE. THE ADDITION HAS BEEN MADE ON THE BASIS OF CASH FLOW STATEMENT FILED IN COURSE OF ASSESSMENT PROCEEDINGS. IN OUR CONSIDERED OPINION, SUCH AN ADDITION CANNOT BE MADE IN THE PRESENT YEAR IN THE ABSENCE OF ANY INCRIMINATING MATERIAL HAVING BEEN FOUND IN COURSE OF SEARCH BECAUSE THE ASSESSMENT OF THIS YEAR HAS NOT ABATED. THEREFORE, RESPECTFULLY FOLLOWING THIS DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL, WE HOLD THAT THE ADDITION MADE BY THE ASSESSING OFFICER IS NOT SUSTAINABLE. 6. IN THE LIGHT OF THE AFORESAID ORDER OF THE TRIBUNAL, WE ARE OF THE CONSIDERED VIEW THAT IF NO INCRIMINATING MATERIAL IS FOUND DURING THE COURSE OF SEARCH, ASSESSMENT UNDER SECTION 153A OF THE ACT CANNOT BE FRAMED AND ADDITION CANNOT BE MADE ON THE BASIS OF INFORMATION FURNISHED BY THE ASSESSEE IF ORIGINAL ASSESSMENT UNDER SECTION 143(3) OF THE ACT OR 143(1) OF THE ACT IS COMPLETED CONSEQUENT TO THE RETURN FILED UNDER SECTION 143(3) OF THE ACT. WE, THEREFORE, SET ASIDE THE ORDER OF THE LD. CIT(A) IN ALL THESE APPEALS AND RESTORE THE MATTER TO THE ASSESSING OFFICER TO VERIFY THE FACTS. IF ORIGINAL ASSESSMENT IS COMPLETED BEFORE SEARCH OR INITIATION OF PROCEEDINGS UNDER SECTION 153A OF THE ACT, NO ASSESSMENT CAN BE FRAMED UNDER SECTION 153A OF THE ACT WHERE NO INCRIMINATING MATERIAL IS FOUND DURING THE COURSE OF SEARCH UNDER SECTION 132 OF THE ACT AND ADDITION MADE :- 6 -: ON THE BASIS OF INFORMATION FURNISHED BY THE ASSESSEE IS NOT SUSTAINABLE IN THE EYES OF LAW. IN CASE IT IS NOTICED THAT ASSESSMENT UNDER SECTION 143(3) OF THE ACT WAS PENDING AND IT WAS ABATED ON ACCOUNT OF INITIATION OF PROCEEDINGS UNDER SECTION 153A OF THE ACT, ASSESSMENT COMPLETED UNDER SECTION 153A OF THE ACT IS VALID AND ADDITION CAN BE MADE ON THE BASIS OF THE INFORMATION FURNISHED BY THE ASSESSEE. ACCORDINGLY THE ORDER OF THE LD. CIT(A) IS SET ASIDE AND THE MATTER IS RESTORED TO THE ASSESSING OFFICER WITH A DIRECTION TO VERIFY THE FACTS AND PASS A CONSEQUENTIAL ORDER IN TERMS INDICATED. 7. IN THE RESULT, APPEALS OF THE ASSESSEES ARE ALLOWED FOR STATISTICAL PURPOSES AND THE STAY PETITIONS ARE DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 17 TH JULY, 2015 JJ:0907 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR