Asstt. Commissioner of Income Tax, Kanpur V. M/s. Gopi Apartments, Kanpur

ITA 495/LKW/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4972 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 21-10-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 13-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S K GARG SHRI P K KAPOOR

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YA DAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.495/LKW/2012 A.Y.: 2005-06 A .C.I.T., CENTRAL CIRCLE-2, KANPUR. VS. M/S GOPI APARTMENTS, 59/44, BIRHANA ROAD, KANPUR. PAN:AAGFG3611D (APPELLANT) (RESPONDENT) C.O.NO.83/LKW/2012 (IN ITA NO.495/LKW/2012) A.Y.: 2005-06 M/S GOPI APARTMENTS, 59/44, BIRHANA ROAD, KANPUR. PAN:AAGFG3611D VS. A .C.I.T., CENTRAL CIRCLE-2, KANPUR. (OBJECTOR) (RESPONDENT) REVENUE BY SHRI MANOJ KUMAR GUPTA, CIT, D.R. A SSESSEE BY SHRI S. K. GARG, ADVOCATE SHRI P. K. KAPOOR, C. A. DATE OF HEARING 21/10/2013 DATE OF PRONOUNCEMENT 25/10/2013 O R D E R PER A. K. GARODIA, A.M. THIS APPEAL IS FILED BY THE REVENUE AND THE CROSS OBJECTION IS FILED BY THE ASSESSEE, WHICH ARE DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-I, KANPUR DATED 04/06/2012 FOR THE ASSESSMENT YEAR 2005-06. 2 2. IN THE VERY BEGINNING, WE WOULD LIKE TO NOTE DOWN THE BRIEF HISTORY OF THIS CASE BECAUSE THE PRESENT APPEAL BEFO RE US IS IN THE THIRD ROUND. AS PER THE FIRST TRIBUNAL ORDER DATED 07/07/ 2010 PASSED IN I.T.A.NO.325/LKW/2010 AND C.O. NO.20/LKW/2010, THE MATTER WAS RESTORED BACK TO THE FILE OF CIT(A) FOR FRESH ADJUDICATION. AGAINST THE CONS EQUENTIAL ORDER PASSED BY CIT(A), THE APPEAL WAS FILED BY THE REVENUE AND C. O. WAS FILED BY THE ASSESSEE BEFORE THE TRIBUNAL. THE SECOND ORDER WAS PASSED BY THE TRIBUNAL ON 26/04/2011 AND AGAIN SET ASIDE THE MATTER BACK TO THE FILE OF THE LEARNED CIT(A) IN I.T.A.NO.738/LKW/2010 AND C.O. NO.02/LKW/ 2011. IN THIS ORDER IT WAS HELD BY THE TRIBUNAL REGARDING VA RIOUS GROUNDS RAISED BY THE ASSESSEE IN ITS CROSS OBJECTION THAT SINCE MAIN ISSUE HAS BEEN RESTORED TO THE FILE OF THE CIT(A) FOR FRESH ADJUDICATION AND, THEREFORE, THE ISSUES RAISED BY THE ASSESSEE IN THE CROSS OBJECTION ARE ALSO RESTORED BACK TO THE FILE OF THE LEARNED CIT(A) WITH THE DIRECTION TO DECIDE THE SAME. AS PER THE DIRECTION OF THE TRIBUNAL, THE IMPUGNED ORDER WAS PASSED BY LEARNED CIT(A) ON 04/06/2012. AGAINST THIS ORDER OF LEARNED CIT(A), THE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE AND CROSS OBJECTION HAS BEEN FILED BY THE ASSESSEE. 3. FIRST WE WILL TAKE UP THE APPEAL FILED BY THE REVENUE. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1. THAT LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE ASSUMPTION OF JURISDICTION AND FRAMING OF ASSESSMENT ORDER BY THE ASSESSING OFFICER U/S 153C WAS VOID. 2. THAT LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE ASSUMPTION OF JURISDICTION AND FRAMING OF ASSESSMENT ORDER U/S 153C WAS BAD IN LAW. 3. THAT LD. CIT (A) HAS ERRED IN LAW AND ON FA CTS IN ANNULLING THE ASSESSMENT BY COMING TO THE CONCLUSION THAT NO SATISFACTION WAS RECORDED BY TH E A.O., DESPITE THE FACT THAT 3 THE A.O. HAS SPECIFICALLY MENTIONED THE FACTS THAT LEAD TO RECORDING OF HIS SATISFACTION AS WELL AS NOTICE U/S 153C WAS ISSUED AFTER RECORDING THE SATISFACTION. 4. THAT THE ORDER OF THE LD. CIT (A) DESERVES TO BE VACATED AND THE ASSESSMENT ORDER PASSED BY THE A.O. BE RESTORED. 5. THAT THE APPELLANT CRAVES LEAVE TO AMEND ANY ONE OR MORE OF THE GROUNDS OF THE APPEAL AS STATED ABOVE AS AND WHEN NEED FOR DOING SO MAY ARISE. 4. LEARNED D.R. OF THE REVENUE SUPPO RTED THE ASSESSMENT ORDER WHEREAS THE LEARNED A.R. OF THE ASSESSEE SUPPORTED THE ORDE R OF LEARNED CIT(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT ON PAGE NO. 4 AT PARA 5, THE LEARNED CIT(A) HAS REPRODUCED THE COMMENTS GIVEN BY THE ASSESSING OFFICER IN THE COURSE OF REMAND PROCEEDINGS AND AS PER THE SAME, IT WA S REPORTED BY THE ASSESSING OFFICER THAT ALTHOUGH THE ASSESSING OFFICER IN HIS ASSESSMENT ORDER HAS SPECIFICALLY STATED THAT SATISFACTION FOR ISSUING NO TICE UNDER SECTION 153C WAS RECORDED, HOWEVER, ON EXAMINATION OF RECORDS, SUCH SATISFACTION RECORDED BY THE ASSESSING OFFICER IS NOT AVAILABLE. THIS GOES TO SHOW THAT IT WAS NOT BROUGHT ON RECORD BY THE ASSESSING OFFICER BEFORE THE LEARNED CIT(A) THAT ANY SATISFACTION WAS RECORDED BY THE ASSESSING OFFICER BEFORE ISSUING NOTICE U/S 153C OF THE ACT BY PRODUCING A COPY OF SUCH SATISFACTION . INSTEAD OF THIS, IT IS SPECIFICALLY REPORTED BY THE ASSESS ING OFFICER TO THE CIT(A) THAT ON EXAMINATION OF RECORDS, ANY SATISFACTION RECORDED BY THE ASSESSING OFFICER IS NOT AVAILABLE. BEFORE US ALSO, LEARNE D D.R. OF THE REVE NUE HAS NOT BROUGHT ON RECORD THE COPY OF ANY SATISFACTION RECORDED BY THE ASSESSING OFFICER OF THE SEARCHED PERSON, WHICH IS NECESSARY FOR ISSUING NOTICE TO THE PRESENT ASSESSEE U/S 153C OF THE ACT. IN THE ABSENCE OF SUCH SATISFACTION HAVING BEEN RECORDED BY THE ASSESSING OFFICE R OF THE SEARCHED PERSON, THE PRESENT 4 PROCEEDINGS INITIATED BY THE PRESENT ASSESSING OFFICER AGAINST THE PRESENT ASSESSEE U/S 153C IS WITHOUT JURISDICTION AND IN OUR CONSIDERED OPINION, THE SAME HAS BEEN RIGHTLY QUASHED BY LEARNED CIT(A) BY FOLLOWING THE JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CA SE OF MANISH MAHESH WARI AS REPORTED IN 208 CTR 97. WE, THEREFORE, DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF LEARNED CIT(A). 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIMISSED. 7. IN VIEW OF OUR DECISION, AS PER WHICH THE APPEAL OF THE REVENUE HAS BEEN DISMISSED, THE CROSS OBJECTIO N FILED BY THE ASSESSEE HAS BECOME INFRUCTUOUS AND, THEREFORE, DISMISSED ACCORDINGLY. 8. IN THE RESULT, THE APPEAL OF THE RE VENUE AS WELL AS CROSS OBJECTION OF THE ASSESSEE IS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:25/10/2013 *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. T HE APPELLANT 2. T HE RESPONDENT. 3. CONCERNED CIT 4. T HE CIT( A ) 5. DR, ITAT, LUCKNOW ASSTT. REGISTRAR