Appeal details
Counselvise Citation
49023714 RSA 2011
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 5 month(s) 18 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
30-01-2014
Appeal Filed By
Department
Order Result
Allowed
Bench Allotted
B
Next Hearing Date
07-01-2014
Assessment Year
misc
Appeal Filed On
12-08-2011
Judgement Text
1 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.490 TO 493/LKW/2011 ASSESSMENT YEARS:2000 - 01 TO 2003 - 04 DY.C.I.T., CENTRAL CIRCLE - 2, KANPUR. VS. M/S VIKRANT CHEMICO INDUSTRIES (P) LTD., 49 GOVT. INDUSTRIAL ESTATE, KANPUR. PAN:AAACV4467H (APPELLANT) (RESPONDENT) C.O.NO.01 TO 04/LKW/2014 (IN ITA NO.490 TO 493/LKW/2011) ASSESSMENT YEARS:2000 - 01 TO 2003 - 04 M/S VIKRANT CHEMICO INDUSTRIES (P) LTD., 49 GOVT. INDUSTRIAL ESTATE, KANPUR. PAN:AAACV4467H VS. DY.C.I.T., CENTRAL CIRCLE - 2, KANPUR. (OBJECTOR) (RESPONDENT) REVENUE BY SHRI VIVEK MISHRA, CIT, D.R. ASSESSEE BY SHRI S. K. GARG, ADVOCATE SHRI P. K. KAPOOR, C.A. DATE OF HEARING 08/01/2014 DATE OF PRONOUNCEMENT 3 0 /01/2014 O R D E R PER BENCH: ALL THESE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE DELAYED BY 695 DAYS. ALTHOUGH THE ASSESSEE HAS SUBMITTED SEPARATE APPLICATIONS FOR CONDONATION OF DELAY BUT THE ASSESSEE COULD NOT POINT OUT ANY ACCEPTABLE AND SATISFACTORY REASON FOR SUCH A LONG DELAY AND HENCE, WE DO NOT CONDONE THE DELAY AND, THEREFORE, THESE CROSS OBJECTIONS ARE NOT ADMITTED AND ARE REJECTED ACCORDINGLY. 2 2. ALL THE FOUR APPEALS ARE FILED BY THE REVENUE, WHICH ARE DIRECTED AGAINST THE FOUR SEPARATE ORDERS OF LEARNED CIT(A) - I, KANPUR ALL DATED 04/05/2011 FOR ASSESSMENT YEARS 2000 - 2001, 2001 - 2002, 2002 - 2003 & 203 - 2004. ALL THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 3. LEARNED D.R. OF THE REVENUE SUBMITTED THAT WRITTEN SUBMISSIONS ARE ALREADY SUBMITTED ON 07/02/2012 IN RESPECT OF HEARING FIXED ON 20/03/2012 AND THE SAME MAY BE CONSIDERED. HE FURTHER SUBMITTED THAT THE LEARNED CIT(A) HAS NOT DECIDED THE APPEAL ON MERIT AND, THEREFORE, THE MATTER SHOULD GO BACK ON THE FIL E OF LEARNED CIT(A) FOR DECIDING ON MERIT. 4. AS AGAINST THIS, THE LEARNED A.R. OF THE ASSESSEE SUPPORTED THE ORDER OF LEARNED CIT(A) AND ALSO PLACED RELIANCE ON THE FOLLOWING JUDICIAL PRONOUNCEMENTS: (I) COMMISSIONER OF INCOME - TAX VS RAJEEV SHARMA [2011] 33 6 ITR 678 (ALL) (II) ASSISTANT COMMISSIONER OF INCOME - TAX VS HOTEL BLUE MOON [2010] 321 ITR 362 (SC) 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. T HE WRITTEN SUBMIS SIONS FILED BY THE REVENUE ARE REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: AT THE OUTSET, A SEARCH & SEIZURE ACTION U/S 132 OF THE IT ACT WAS CARRIED OUT ON 29.12.2005. THE ASSESSMENT OF ASSESSEE - COMPANY FOR THE ASSESSMENT YEAR 2000 - 01 WAS MADE UND ER SECTION 153A OF THE ACT ON 31.12.2007 DETERMINING THE TOTAL INCOME AT RS.10,55,015/ - . AN ADDITION OF RS.8,52,635/ - WAS MADE ON ACCOUNT OF APPLICATION OF HIGHER G.P. ON THE ESTIMATED SALES. HOWEVER, THE CIT(A) HAS ALLOWED THE APPEAL OF THE ASSESSEE BY H OLDING THAT THE IMPUGNED ASSESSMENT ORDER IS 3 INVALID ON THE REASON THAT THE NOTICE U/S 143(2) WAS NOT ISSUED TO THE ASSESSEE - COMPANY. THE CIT(A) HAS NOT DECIDED THE APPEAL ON THE POINT OF ADDITION I.E. ON ITS MERITS. AGGRIEVED WITH THE ORDER OF CIT(A), THE DEPARTMENT HAS PREFERRED THIS APPEAL. 2. THE GROUND NOS. 3,4 & 5 RELATE TO THE ISSUANCE OF NOTICE U/S 143(2) OF THE ACT. AT THE OUTSET, IT IS STATED THAT THE PROVISIONS OF SECTION 153A ARE SELF CONTAINED PROVISIONS, AND IT IS NOT A REQUISITE TO ISSUE NOT ICE U/S 143(2) WHILE COMPLETING THE ASSESSMENT UNDER SECTION 153A OF THE ACT. THE NOTICE U/S 153A OF THE ACT WAS ISSUED TO THE ASSESSEE ON 24.07.2007 AND WHICH WAS SERVED UPON ASSESSEE ON 25.07.2007. THE ASSESSEE - COMPANY HAS ALSO ATTENDED THE ASSESSMENT PR OCEEDINGS ON SOME DATES AS MENTIONED IN THE ASSESSMENT ORDER. 3. FURTHER, THE HON'BLE DELHI HIGH COURT HAS HELD IN THE CASE OF SHRI ASHOK CHHADDA VS. ITO, REPORTED IN (2011) 63 DTR (DEL) 353 THAT 'A SPECIFIC NOTICE WAS REQUIRED TO BE ISSUED UNDER CL. (A) OF SUB - S.(1) OF S. 153A CALLING UPON THE PERSONS SEARCHED OR REQUISITIONED TO FILE RETURN AND THAT BEING SO, NO FURTHER NOTICE UNDER S. 143(2) COULD BE CONTEMPLATED FOR ASSESSMENT UNDER S. 153A.' A PHOTOCOPY OF ABOVE CITED CASE LAW IS ENCLOSED HEREWITH FOR YOUR KIND PERUSAL. 4. AS REGARDS GROUND NOS. 1 & 2, THE ASSESSEE COMPANY HAS NOT RAISED THIS ISSUE BEFORE THE ASSESSING OFFICER. THIS ISSUE WAS RAISED BEFORE THE CIT(A) AS AN ADDITIONAL GROUND OF APPEAL. 5. UNDER THESE FACTS AND CIRCUMSTANCES, THE FINDING GIVEN BY THE CIT(A) IS NOT IN ACCORDANCE WITH THE PROVISIONS OF INCOME TAX ACT AND HENCE THE ORDER OF THE CIT(A) DESERVES TO BE VACATED. 5.1 FROM THE ORDER OF LEARNED CIT(A), WE FIND THAT THE LEARNED CIT(A) HAS HELD THAT THE ASSESSMENT FRAMED BY THE ASSESSING OFFICER U/S 153A OF THE ACT IS INVALID BECAUSE NO NOTICE WAS ISSUED BY THE ASSESSING OFFICER U/S 143(2). THEREAFTER, THERE IS A DECISION OF HON'BLE DELHI HIGH COURT RENDERED IN THE CASE O F ASHOK CHADDHA VS. INCOME TAX OFFICER [2011] 063 DTR 03 53 ON WHICH RELIANCE HAS BEEN PLACED BY THE REVENUE IN WRITTEN SUBMISSIONS REPRODUCED ABOVE. IN THIS JUDGMENT, IT WAS HELD BY HON'BLE DELHI HIGH COURT 4 THAT SPECIFIC NOTICE WAS REQUIRED TO BE ISSUED U NDER CLAUSE (A) OF SUB SECTION (1) OF SECTION 153A CALLING UPON THE PERSONS SEARCHED OR REQUISITIONED TO FILE RETURN AND THAT BEING SO, NO FURTHER NOTICE UNDER SECTION 143(2) COULD BE CONTEMPLATED FOR ASSESSMENT UNDER SECTION 153A. AS PER THIS JUDGMENT OF HON'BLE HIGH COURT, THE ASSESSMENT FRAMED BY THE ASSESSING OFFICER U/S 153A WITHOUT ISSUING NOTICE U/S 143(2) IS NOT INVALID AS HAS BEEN HELD BY LEARNED CIT(A). NOW WE CONSIDER THE APPLICABILITY OF TWO JUDGMENTS CITED BY LEARNED A.R. OF THE ASSESSEE. 5.2 THE FIRST JUDGMENT IS THE JUDGMENT OF HON'BLE ALLAHABAD HIGH COURT RENDERED IN THE CASE OF COMMISSIONER OF INCOME - TAX VS RAJEEV SHARMA [2011] 336 ITR 678 (ALL) . WE FIND THAT THIS JUDGMENT IS IN RESPECT OF ASSESSMENT COMPLETED BY THE ASSESSING OFFICER U/S 148 OF THE ACT AND NOT U/S 153A WHEREAS THE JUDGMENT CITED BY LEARNED D.R. OF THE REVENUE OF HON'BLE DELHI HIGH COURT IS IN RESPECT OF ASSESSMENT FRAMED BY THE ASSESSING OFFICER U/S 153A. THEREFORE, IN THE PRESENT CASE, THIS JUDGMENT IS APPLICABLE AN D NOT THE JUDGMENT OF HON'BLE ALLAHABAD HIGH COURT. 5.3 THE SECOND JUDGMENT CITED BY LEARNED A.R. OF THE ASSESSEE BEING THE JUDGMENT OF HON'BLE APEX COURT WAS RENDERED IN THE CASE OF ASSISTANT COMMISSIONER OF INCOME - TAX VS HOTEL BLUE MOON [2010] 321 ITR 3 62 (SC) . IN THAT CASE, THE ASSESSMENT WAS FRAMED BY THE ASSESSING OFFICER U/S 158BC AND NOT U/S 153A OF THE ACT AND, THEREFORE, IN THE PRESENT CASE , THIS JUDGMENT IS ALSO NOT APPLICABLE. 5.4 AS PER THE ABOVE DISCUSSION, WE HAVE SEEN THAT BOTH THE JUDGMEN TS CITED BY LEARNED A.R. OF THE ASSESSEE ARE NOT APPLICABLE WHEREAS AS PER THE JUDGMENT OF HON'BLE DELHI HIGH COURT CITED BY LEARNED D.R. OF THE REVENUE, THE ORDER OF LEARNED CIT(A) IS NOT SUSTAINABLE. WE, THEREFORE, SET ASIDE THE ORDER OF LEARNED CIT(A) IN ALL THE FOUR YEARS. BUT SINCE THE ISSUE WAS NOT 5 DECIDED BY LEARNED CIT(A) ON MERIT, WE RESTORE THE ISSUE TO THE FILE OF LEARNED CIT(A) FOR HIS DECISION ON MERIT . THE LEARNED CIT(A) SHOULD PASS NECESSARY ORDER AS PER LAW ON MERIT O F VARIOUS ADDITIONS M ADE BY THE ASSESSING OFFICER AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES. 6. IN THE RESULT, ALL THE APPEALS OF THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE COMBINED RESULT, ALL THE APPEALS OF THE REVENUE ARE ALL OWED FOR STATISTICAL PURPOSES WHEREAS ALL THE CROSS OBJECTIONS OF THE ASSESSEE ARE DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 3 0 T H JANUARY, 2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR
