Assistant Commissioner OF Income Tax Central Circle3-(4), Hyderabad V. GVK Enterprises, Hyderabad

ITA 49/Hyd/2021

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 5941 (ITAT-HYDERABAD)
• Duration Of Justice: 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB-B
• Assessment Year: 2017-2018
• Appeal Filed On: 12-01-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y.V.S.T. SAI
• Section: 153A; 139(1); 64; 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD ‘B’ BENCH, HYDERABAD. BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER AND SHRI L. P. SAHU, ACCOUNTANT MEMBER (Through Virtual Hearing) O R D E R Per Bench : The instant batch of eleven cases pertains to a single assessee M/s. GVK Enterprises. Relevant details qua all the instant appeals are given as follows : ITA Nos.20 to 25/Hyd/2021 Assessment Years: 2010-11 to 2013-14, 2015-16 and 2017-18 M/s. GVK Enterprises, Hyderabad. PAN : AAPFG5485L. Vs. Deputy Commissioner of Income Tax, Central Circle 3(4), Hyderabad. (Appellant) (Respondent) ITA Nos.45 to 49/Hyd/2021 Assessment Years – 2010-11 to 2012-13, 2015-16 and 2017-18 ACIT, Central Circle – 3(4), Hyderabad. Vs. M/s. GVK Enterprises, Hyderabad. PAN : AAPFG5485L. (Appellant) (Respondent) Assessee by: Shri P. Murali Mohan Rao Revenue by : Sri Y.V.S.T. Sai. Date of hearing: 18.11.2021 Date of pronouncement: 21.12.2021 2 ITA Nos.20 to 25/Hyd/2021 and ITA Nos.45 to 49/Hyd/2021 ITA No. Name of the Appellant Respondent A.Y. CIT(A) Order under challenge date and case No. Proceed- ings under section 20 to 25/Hyd/2021 M/s. GVK Enterprises, Hyderabad. DCIT, Central Circle -3(4), Hyderabad 2010-11 to 2013- 14, 2015- 16 and 2017-18 CIT(A)-11, Hyderabad dt.11.09.2020 10143, 10147, 10117, 10120, 10133 and 10170 /2019-20 143(3) r.w.s 153C 45 to 49/Hyd/2021 ACIT, Central Circle -3(4), Hyderabad M/s. Sri Krishna Constructions, Hyderabad. PAN : ABBFS8556K 2010-11 to 2012- 13, 2015- 16 and 2017-18 -do- 10143, 10147, 10117, 10133 and 10170/ 2019-20 -do- Heard both parties. Case files perused. 2. The captioned appeals filed by the assessee are found to be barred by 23 days’ delay in filing. It has moved a petition requesting the bench to condone the delay. We heard the party on this preliminary issue. Having regard to the reasons given in the petition, we condone the delay and admit the appeal for hearing. 3. It is noticed at the outset that with the able assistance of both the learned representatives that the Revenue’s five appeals ITA 45 to 49/Hyd/2021 challenge correctness of the CIT(A)’s findings quashing section 153C proceedings as not based on any incriminating material during the course of search in issue dated 04.07.2017 as follows : 3 ITA Nos.20 to 25/Hyd/2021 and ITA Nos.45 to 49/Hyd/2021 4 ITA Nos.20 to 25/Hyd/2021 and ITA Nos.45 to 49/Hyd/2021 5 ITA Nos.20 to 25/Hyd/2021 and ITA Nos.45 to 49/Hyd/2021 6 ITA Nos.20 to 25/Hyd/2021 and ITA Nos.45 to 49/Hyd/2021 7 ITA Nos.20 to 25/Hyd/2021 and ITA Nos.45 to 49/Hyd/2021 4. The assessee’s six appeals i.e. ITA 21 to 25/Hyd/2021 assessment year wise; respectively on the other hand plead that the CIT(A) has erred in law and on facts in not deciding the various issues on merits. 5. We have given our thoughtful consideration to rival contentions. Learned CIT-DR vehemently contended during the course of hearing that the impugned lower appellate findings are not sustainable in law since there existed ample incriminating material as per the Assessing Officer’s sec 153C satisfaction. And that the CIT(A) has wrongly held the assessee to have filed its returns for A.Y. 2010-11 onwards validly whereas the same had been submitted only in the year 2016 i.e. on 04.08.2016 to be precise which ought to be treated as invalid ones being belated. He quoted case laws Gopal Bhadruka Vs. DCIT 346 ITR 106 (Andhra Pradesh), E.N. Gopakumar Vs. CIT (2017) 390 ITR 131 (Kerala), ITA 270 of 2014 CIT Vs. Kesarwani Zarda Bhandar and CIT Vs. Raj Kumar Arora (2014) 367 ITR 517 (Allahabad) that it is nowhere 8 ITA Nos.20 to 25/Hyd/2021 and ITA Nos.45 to 49/Hyd/2021 necessary to initiate and frame section 153A / 153C assessments only in case of incriminating material found / seized during the course of search. 6. We find no merit in the Revenue’s instant argument since not only hon’ble apex court’s recent decision in CIT Vs. Sinhghad Technical Educational Society (supra) but also various decisions of hon’ble high courts i.e. CIT vs. Kabul Chawla (2016) 360 ITR 573 (Del), CIT Vs. Salasar Stock Broking Limited (Calcutta high court) in G.A.No.1929 of 2016 dt.24.08.2016 and CIT Vs. Continental Warehousing Corporation (2015) 374 ITR 64 (Bom) to name a few, indeed support the assessee’s case that the impugned proceedings could be taken recourse to only in case of incriminating material to have been found or seized during the course of search. Hon’ble jurisdictional high court’s judgment (supra) quoted at Revenue’s behest also nowhere holds that such an assessment is valid even in absence of the foregoing incriminating material. Their lordships rather observe that whilst framing an assessment u/s 153A / 153C, the Assessing Officer is nowhere barred from taking cognizance of any other material as well. 7. Now comes the equally important question as to whether the assessee’s return(s) in issue would be treated as invalid being belated ones or not. Our reply is negative in assessee’s favour and against the department. This is because of the fact that the assessee had filed its return(s) under the Income Declaration Scheme, 2016 on 04.08.2016 followed by the search in issue 9 ITA Nos.20 to 25/Hyd/2021 and ITA Nos.45 to 49/Hyd/2021 dt.04.07.2017. The Revenue’s argument that it had not filed any return in the corresponding assessment year u/s 139(1) of the Act, we are of the opinion that the decision as to whether the income sought to be added as under the head “undisclosed income” has to be seen on the date of search only which purely stands satisfied in the facts of instant appeal. We further wish to observe here that the assessee’s returns filed under 2016 scheme stands stood duly accepted as there is no ground in Revenue’s pleadings to the contrary. 8. Learned CIT-DR lastly contended that the assessee had not disclosed its IDBI bank account in the computation corresponding to the alleged returns filed in the year 2016. We find no substances in the instant last argument as well since a perusal of the corresponding account documents indicate that the same had been opened only on 05.08.2016 and therefore, it could not be treated as an undisclosed bank account in assessment years 2010-11 to 2016-17 to say the least. So far as the last A.Y. 2017-18 is concerned, it is made clear that the relevant proceedings therein are in the search year itself only. We therefore decline the Revenue’s foregoing arguments in light of all the relevant facts and circumstances forming part of record before us. Revenue’s five appeals i.e. ITA 45 to 49/Hyd/2021 seeking to reverse the CIT(A)’s identical action quashing the impugned section 153C assessments fail accordingly. 10 ITA Nos.20 to 25/Hyd/2021 and ITA Nos.45 to 49/Hyd/2021 9. The assessee’s six cross appeals ITA 20 to 25/Hyd/2021 are dismissed as withdrawn in light of our findings recorded in the Revenue’s foregoing appeals. No other ground has been pressed before us. 10. To sum up, the Revenue’s five appeals ITA 45 to 49/Hyd/2021 are dismissed whereas the assessee’s cross appeals ITA 20 to 25/Hyd/20201 are dismissed as withdrawn. A copy of this common order be placed in respective case files. Order pronounced in the open court on 21 st December, 2021. Sd/- Sd/- (L.P. SAHU) (S.S. GODARA) Accountant Member Judicial Member Hyderabad, Dt. 21.12.2021. TYNM/Sr.P.S. 11 ITA Nos.20 to 25/Hyd/2021 and ITA Nos.45 to 49/Hyd/2021 Copy to : 1. M/s. GVK Enterprises, C/o. P. Murali & Co., Chartered Accountants, 6-3-655/2/3, Somajiguda, Hyderabad – 500082. 2. The Deputy Commissioner of Income Tax, Central Circle – 3(4), Hyderabad. 3. The Assistant Commissioner of Income Tax, Central Circle – 3(4), Hyderabad. 4. The CIT (Appeals)- 11, Hyderabad. 5. The Pr. Commissioner of Income Tax (Central), Hyderabad. 6. DR, ITAT, Hyderabad. 7. Guard File. By Order