Asst. Commissioner of Income Tax, Central Circle-3(2), Hyderabad V. Aster Building Solution Private Limited , Hyderabad

ITA 471/Hyd/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0059 (ITAT-HYDERABAD)
• Duration Of Justice: 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-07-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB-B
• Assessment Year: 2012-2013
• Appeal Filed On: 31-08-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJIV RANKA
• Assessee Lawyers: P MURALI MOHANA RAO
• Keywords: Bogus purchase; Search and seizure
• Section: 153A; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B : HYDERABAD (THROUGH VIDEO CONFERENCE) BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER ITA NO. A.Y. APPELLANT RESPONDENT 468/HYD/2020 2010-11 ASST.COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-3(2), HYDERABAD M/S.ASTER PRIVATE LIMITED, HYDERABAD [PAN: AACCA5469L] 469/HYD/2020 2011-12 470/HYD/2020 2011-12 M/S.ASTER BUILDING SOLUTIONS PRIVATE LIMITED, HYDERABAD [PAN: AAHCA1162B] 471/HYD/2020 2012-13 FOR REVENUE : SHRI RAJIV RANKA, CIT - DR FOR A SSESSEE : SHRI P.MURALI MOHANA RAO, AR DATE OF HEARING : 30 - 0 6 - 20 2 1 DATE OF PRONOUNCEMENT : 20 - 0 7 - 2021 O R D E R PER S.S.GODARA, J.M. : THESE FOUR REVENUES APPEALS, TWO APPEALS EACH ITA NOS.468 & 469/HYD/2020 IN CASE OF THE FORMER ASSESSE E, M/S.ASTER PRIVATE LIMITED AND ITA NOS.470 & 471/HYD/20 20 INVOLVING LATTER APPEALS OF M/S.ASTER BUILDING SOLUT IONS PRIVATE LIMITED ARISE AGAINST THE CIT(A)-11, HYDERABADS SEPAR ATE ORDERS; ALL DATED 03-01-2020 PASSED IN CASE NOS.321, 354, 319 & 313 / CIT(A)-11 / HYD / 2018-19, 2019-20 INVOLVIN G PROCEEDINGS U/S.143(3) R.W.S.153A OF THE INCOME TAX ACT, 1961 [IN SHORT, THE ACT]; RESPECTIVELY. HEARD BOTH THE PARTIES. CASE FILES PERUSED. ITA NOS. 468, 469, 470 & 471/HYD/2020 :- 2 -: 2. THE REVENUES IDENTICAL SUBSTANTIVE GROUNDS RAISED IN ALL THE INSTANT APPEALS READ AS UNDER: THE LD.CIT(A) ERRED BOTH IN LAW AND ON FACTS OF TH E CASE IN ALLOWING RELIEF TO THE ASSESSEE. 2.THE LD.CIT(A) FAILED TO APPRECIATE THE FACT THAT IN THE ASSESSMENT ORDER THE ASSESSING OFFICER HAS CLEARLY MENTIONED T HAT THE SEARCH AND POST-SEARCH ENQUIRIES HAS REVEALED ACCOMMODATION PU RCHASES BY THE ASSESSEE BASING ON WHICH THE ADDITION WAS MADE. 3.THE LD.CIT(A) OUGHT TO HAVE APPRECIATED THE FACT THAT A DETAILED SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE COMPAN Y WHEREIN ALL THE FACTS RELATING TO THE BOGUS/ACCOMMODATION ENTRI ES OF PURCHASE BILLS/UNEXPLAINED & UNVERIFIED EXPENSES WITH VARIOU S VENDORS HAVE BEEN POINTED OUT TO THE ASSESSEE. 4.THE LD.CIT(A) ERRED IN ALLOWING THE APPEAL WITHOU T APPRECIATING THE FACT THAT A DETAILED SHOW CAUSE NOTICE WAS ISSUED C OVERING THE ISSUES OF SEARCH INVOLVING CLAIM OF NON-GENUINE/BOGUS PURCHASES/UNEXPLAINED & UN VERIFIED EXPENSES, AS AP PLICABLE TO VARIOUS VENDORS AS NOTICED DURING THE SEARCH AND SU RVEY PROCEEDINGS CONDUCTED IN THIS GROUP CASES. 5.THE LD.CIT(A) ERRED IN NOT FOLLOWING THE PRINCIPL E LAID DOWN BY THE JURISDICTIONAL HIGH COURT OF ANDHRA PRADESH IN THE CASE OF GOPAL LA BHADRUKA VS DCIT 346 ITR 106, WHEREIN IT HAS HELD T HAT 'FOR THE PURPOSE OF SECTION 153A/153C OF THE I.T. ACT THE AO CAN TAKE INTO CONSIDERATION MATERIAL OTHER THAN WHAT WAS AVAILABL E DURING SEARCH AND SEIZURE OPERATION FOR MAKING AN ASSESSMENT.' 6.THE LD.CIT(A) IS NOT JUSTIFIED ON FACTS AND IN LA W IN DELETING THE ADDITION IGNORING THE DECISION IN THE CASE OF EN GO PA KUMAR VS CIT(2016) WHEREIN IT HAS HELD THAT THE PRESENCE OF INCRIMINATING MATERIAL IS NOT A REQUIREMENT AND THE ASSESSEE U/S1 53A CAN BE MADE WITHOUT THERE BEING ANY INCRIMINATING MATERIAL . 7.THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD ANY OTHER GROUNDS WHICH MAY BE NECESSARY. 3. THERE IS HARDLY ANY DISPUTE THAT WE ARE IN AYS.201 0-11 AND 2011-12 IN FORMER ASSESSEE AND AYS.2011-12 AND 2012- 13 IN CASE OF THE LATTER TAXPAYER; RESPECTIVELY. ALL TH ESE FOUR CASES INVOLVE THE SAME SEARCH IN QUESTION DT.23-12-201 5. MEANING THEREBY THAT ALL THESE ASSESSMENTS ARE UN-ABATED ONES U/S.153A OF THE ACT SINCE NO ASSESSMENT WAS PENDI NG IN ITA NOS. 468, 469, 470 & 471/HYD/2020 :- 3 -: THE SAID DATE U/S.153(1) 2 ND PROVISO. THE REVENUES IDENTICAL SOLE SUBSTANTIVE GRIEVANCE IS THAT IT IS NOWHERE MANDATO RY IN LAW THAT SUCH UN-ABATED ASSESSMENTS HAVE TO BE INITIATE D AND FINALISED ONLY ON THE BASIS OF ALL THE INCRIMINATING MATERIAL FOUND OR SEIZED BY THE INVESTIGATION WING AS IT HAS B EEN HELD IN E.N.GOPA KUMAR VS.CIT (2016) [390 ITR 131]; GOPAL L AL BHADRUKA (SUPRA); CIT VS. KESARVANI ZARDA BHANDAR T AX APPEALS 270/2014, (ALLAHABAD), CIT VS. RAJKUMAR ARO RA 367 ITR 517 (ALLAHABAD) AND THEREFORE, THE CIT(A) HAS ER RED IN LAW AND ON FACTS IN ACCEPTING THIS LEGAL ISSUE IN ASSESSE ES FAVOUR. 4. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO REVENU ES FOREGOING GRIEVANCE AND FOUND NO MERIT IN THE SAME AS PER THE FOLLOWING CASE LAW : I. CIT VS. KABUL CHAWLA [318 ITR 573] (DEL); II. DCIT VS. META GUTGUTIA [395 ITR 526] (DEL) III. CIT VS. CONTINENTAL WAREHOUSING CORPORATION (2015) [374 ITR 645] (BOM); IV. CIT VS. VEERPRABHU MARKETING LTD. (2013) [73 TAXMANN.COM 149] (KOL); V. PCIT VS. SOUMYA CONSTRUCTION LTD., [387 ITR 529] HOLDING THAT SECTION 153A COMES INTO PLAY ONLY IN CAS E OF INCRIMINATING MATERIAL FOUND/SEIZED DURING THE COURSE OF SEARCH. AND THE HON'BLE JURISDICTIONAL HIGH COURT (S UPRA) ALSO REITERATED THE VERY VIEW SINCE DEALING WITH INCRIMINATING MATERIAL FOUND AS AGAINST THE FACTS OF TH E INSTANT CASE. 4.1. WE THEREFORE ARE OF THE OPINION THAT THE LEARNED CIT(A)S IDENTICAL CONCLUSION, QUASHING ALL THESE ITA NOS. 468, 469, 470 & 471/HYD/2020 :- 4 -: ASSESSMENTS BEING NOT BASED ON THE SEIZED MATERIAL FOU ND DURING THE COURSE OF SEARCH DESERVES TO BE UPHELD. WE ORDER ACCORDINGLY. 5. THESE REVENUES APPEALS ARE DISMISSED. A COPY OF THIS COMMON ORDER BE PLACED IN THE RESPECTIVE CASE FILES. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH JULY, 2021 SD/- SD/- (LAXMI PRASAD SAHU) (S.S.G ODARA) ACCOUNTANT MEMBER JUDICIAL MEM BER HYDERABAD, DATED: 20-07-2021 TNMM ITA NOS. 468, 469, 470 & 471/HYD/2020 :- 5 -: COPY TO : 1.ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIR CLE- 3(2), HYDERABAD. 2.M/S.ASTER PRIVATE LIMITED, E67, 4 TH STREET, SAINIKPURI, HYDERABAD. 3.M/S.ASTER BUILDING SOLUTIONS PRIVATE LIMITED, 3 RD FLOOR, A-8, AISHWARYA CHAMBER, 4 TH CRESCENT ROAD, RUKMINI COLONY, HYDERABAD. 4.CIT(APPEALS)-11, HYDERABAD. 5.THE PR.CIT(CENTRAL), HYDERABAD. 6.D.R. ITAT, HYDERABAD. 7.GUARD FILE.