M/S.. MONOPLAN SECURITIES PVT. LTD, MUMBAI V. THE DY CIT CEN CIR-22, MUMBAI

ITA 5174/MUM/2007

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83876 (ITAT-MUMBAI)
• Duration Of Justice: 7 year(s) 1 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 23-09-2014
• Assessment Year: 2000-2001
• Appeal Filed On: 31-07-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KISHAN VYAS
• Keywords: Search and seizure; Bad and doubtful debts
• Section: 153A; 132; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH I, MUMBAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER ITA NO. 5174/MUM/2007 ASSESSMENT YEAR: 2000-01 MONOPLAN SECURITIES PVT. LTD. C/O. SSKI SECURITIES PVT. LTD. 803/804, TULSIANI CHAMBERS, NARIMAN POINT, MUMBAI- 400 021 VS. DCIT CEN CIR-22 AAYAKAR BHAVAN, M.K. ROAD MUMBAI- 400 020 (APPELLANT) (RESPONDENT) PERMANENT ACCOUNT NO. :- AAACS 6162 L ASSESSEE BY : SHRI HIRO RAI REVENUE BY : SHRI KISHAN VYAS DATE OF HEARING : 23.09.2014 DATE OF PRONOUNCEMENT : 23.09.2014 O R D E R PER DR. S.T.M. PAVALAN, JM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE LD.CIT(A)-4, MUMBAI DATED 29.06.2007 FOR THE ASSESS MENT YEAR 2000-01. 2. IN THIS APPEAL, THE ASSESSEE HAS AGITATED THE DE CISION OF THE LD.CIT(A) IN CONFIRMING THE ACTION OF THE AO DISALLOWING THE BUS INESS LOSS AND THE BAD DEBTS WRITTEN OFF CLAIMED BY THE ASSESSEE. ALSO, THE ASSE SSEE VIDE AN APPLICATION DATED 30.09.2013, HAS FILED THE ADDITIONAL GROUND OF APPE AL WHICH RELATE TO THE VALIDITY OF THE ASSESSMENT MADE U/S 153A OF THE INCOME TAX ACT. AFTER GOING THROUGH THE ADDITIONAL GROUND FILED BY THE ASSESSEE, IT IS NOTE D THAT THE SAME IS A LEGAL GROUND WHICH DOES NOT REQUIRE ANY NEW FACTS TO BE BROUGHT ON RECORD. IN VIEW OF THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF NATIONAL THERMAL POWER COMPANY LTD. VS. CIT (1998) 229 ITR 383 , THE LEGAL GROUND RAISED BY THE ASSESSEE IS ADMITTED. 3. HAVING HEARD BOTH THE SIDES AND PERUSED THE MATE RIAL ON RECORD, IT IS A MATTER OF FACT THAT SEARCH AND SEIZURE ACTION U/S 132 OF T HE ACT HAS BEEN CARRIED OUT IN THE SSKI GROUP ON 02.08.2003 AND THE ASSESSEE HAS ALSO BEEN COVERED UNDER SEARCH, ITA NO. 5174/MUM/2007 MONOPLAN SECURITIES PVT. LTD. ASSESSMENT YEAR: 2000-01 2 WHICH HAS BEEN CONCLUDED ON 03.08.2003. IT IS OBSER VED THAT IN RESPECT OF THE ORIGINAL RETURN OF INCOME FILED BY THE ASSESSEE ON 30.11.2000 FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, THE INTIMATION U/S 143(1) OF THE ACT HAS BEEN ISSUED, HOWEVER, NO NOTICE U/S 143(2) OF THE ACT HAS BEEN S ERVED BY THE AO. IT IS PERTINENT TO MENTION THAT THE ASSESSMENT FOR THE SAID ASSESSM ENT YEAR HAS ATTAINED FINALITY BEFORE THE DATE OF SEARCH HENCE THE ASSESSMENT IN T HE CASE DOES NOT ABATE. IT IS PERTINENT TO MENTION THAT THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF ALL CARGO GLOBAL LOGISTIC LTD. VS. DCIT 137 ITD 287 (MUM)(SB) HAS HELD THAT THE CRUCIAL FACTS TO BE RECORDED IN SUCH CASES IS THAT WHETHER ASSESS MENT OR RE-ASSESSMENT HAS BEEN PENDING AT THE TIME OF SEARCH CARRIED OUT OR IN THE COURSE OF ASSESSMENT PROCEEDINGS INITIATED U/S 153A. APPLYING THE SAID TEST TO THE C ASE IN HAND, THE ASSESSMENT FOR THE YEAR UNDER CONSIDERATION HAS ATTAINED FINALITY AND THEREFORE THE AO DOES NOT HAVE ANY JURISDICTION TO REVIEW THE ASSESSMENTS WHICH HA VE ATTAINED FINALITY. FURTHER, THE RAJASTHAN HIGH COURT IN THE CASE OF JAI STEEL (INDIA) VS. ACIT 88 DTR (RAJ) HAS HELD THAT IN CASE NOTHING INCRIMINATING IS FOUND ON ACCO UNT OF SEARCH OR REQUISITION, THE QUESTION OF REASSESSMENT OF THE CONCLUDED ASSESSMEN T DOES NOT ARISE. IT HAS FURTHER BEEN HELD THAT THE UNDERLYING PURPOSE OF MAKING ASS ESSMENT OF TOTAL INCOME U/S 153A IS TO ASSESS INCOME WHICH IS NOT DISCLOSED OR WOULD NOT HAVE BEEN DISCLOSED. SECOND PROVISO TO SECTION 153A PROVIDING FOR ABATEM ENT OF ASSESSMENT OR REASSESSMENT, WHICH IS APPLICABLE ONLY IN PROCEEDIN GS PENDING ON THE DATE OF SEARCH OR REQUISITION FOR THE REASON THAT THERE CANNOT BE TWO ASSESSMENTS FOR A SINGLE ASSESSMENT YEAR. THE SAME VIEW IS FORTIFIED BY THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. M/S MURALI AGRO PRODUCTS VIDE ITS ORDER DATED 29.10.2010 IN IT APPEAL NO 36 OF 2009. IT IS ALSO A SETTLED POSITION OF LAW THAT REASSESSMENT IS PERMITTED IN AN ASSESSMENT U/S 153A , ONLY IF INCRIMINATING MATERIAL IS FOUND DURING THE COURSE OF SEARCH. IN THE CASE I N HAND, THE QUESTION IS WHETHER ANY INCRIMINATING MATERIAL HAS BEEN FOUND IN THE CO URSE OF SEARCH RELATING TO THE ADDITIONS MADE. THE REVENUE COULD NOT SHOW ANY INCR IMINATING MATERIAL FOUND IN THE COURSE OF SEARCH WHICH WOULD WARRANT THE IMPUGNED A DDITIONS. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT THERE IS NO JUSTIFICATI ON FOR THE AUTHORITIES BELOW TO CONSIDER THE ISSUES IN THE ASSESSMENT PASSED U/S 15 3A. IN VIEW OF THAT MATTER, BOTH THE ADDITIONS MADE IN THE IMPUGNED ASSESSMENT ORDER ARE NOT JUSTIFIED. ITA NO. 5174/MUM/2007 MONOPLAN SECURITIES PVT. LTD. ASSESSMENT YEAR: 2000-01 3 CONSEQUENTLY, THE ORDERS OF THE AUTHORITIES BELOW M AKING/CONFIRMING THE DISALLOWANCES MADE IN RESPECT OF THE ASSESSMENT YEA R UNDER CONSIDERATION STANDS QUASHED. 4. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 23 RD DAY OF SEPTEMBER, 2014. SD/- SD/- (B.R. BASKARAN) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 23.09.2014. *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR I BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.