Piyush Kumar Choubey, Rajnandgaon V. Pr. Commissioner of Income Tax-1, Raipur

ITA 53/RPR/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3835 (ITAT-RAIPUR)
• Duration Of Justice: 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2017-2018
• Appeal Filed On: 02-06-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K MISHRA
• Keywords: Set aside
• Section: 143(3); 153A; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI N. K. CHOUDHRY, JUDICIAL MEMBER ./ I.T.A. NO. 53/RPR/2021) ( ASSESSMENT YEAR : 2017-18) PIYUSH KUMAR CHOUBEY M/S. KHETIBARI BEEJ BHANDAR, LAKOHLI ROAD, GANJ CHOWK, RAJNANDGAON, CHHATISGARGH - 491441 / VS. PR. COMMISSIONER OF INCOME TAX -1 AAYAKAR BHAWAN, CIVIL LINES, RAIPUR - 492001 ./ ./PAN/GIR NO. : AGLPC5481C ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI MOOLCHAND JAIN, C.A. / RESPONDENT BY : SHRI P. K. MISHRA, CIT.DR DATE OF HEARING 30/07/2021 !'# / DATE OF PRONOUNCEMENT 11/10/2021 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE PRINCIPAL COMMISS IONER OF INCOME TAX, RAIPUR-1 (PCIT IN SHORT), DATED 22.03.2021 P ASSED UNDER S.263 OF THE INCOME TAX ACT, 1961 (THE ACT) WHEREBY THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER (AO) DATED 28 .12.2019 UNDER S. 143(3) OF THE ACT CONCERNING AY 2017-18 WAS SOUG HT TO BE SET ASIDE FOR REFRAMING ASSESSMENT IN TERMS OF SUPERVISORY DIRECTIONS. ITA NO. 53/RPR/2021 (PIYUSH KUMAR CHOUBEY VS. PCIT) A.Y. 2017-18 - 2 - 2. AS PER THE GROUNDS OF APPEAL, THE ASSESSEE HAS SOUGHT TO CHALLENGE THE JURISDICTION ASSUMED BY THE PCIT UNDE R S.263 OF THE ACT AND AS A COROLLARY, SOUGHT TO IMPUGN THE REVISI ONAL ORDER PASSED BY THE PCIT UNDER S.263 OF THE ACT. 3. BRIEFLY STATED IN THE ASSESSEE'S CASE, IN THE WA KE OF THE MUNICIPAL ELECTIONS IN THE VARIOUS PARTS OF VIDARBH A, THE DISTRICT ADMINISTRATION OF VARIOUS DISTRICTS HAD FORMED STAT IC SURVEILLANCE TEAMS (SST) AS WELL AS FLYING SQUADS TO CHECK THE M OVEMENT OF CASH, LIQUOR ETC. THE ASSISTANCE OF THE IT DEPARTME NT WAS ALSO SOUGHT BY THE STATE ELECTION COMMISSION WHEREIN THE DESIGNATED ITOS WERE APPOINTED AS THE VERIFICATION OFFICERS. T HE ITO, WARD-1, GONDIA WHO WAS THE DESIGNATED VERIFICATION OFFICERS FOR GONDIA DISTRICT FOR THE MUNICIPAL ELECTIONS, WAS INFORMED BY THE RESIDENT DEPUTY DISTRICT COLLECTOR, GONDIA VIDE LETTER DATED 15.11.2016 THAT A CASH OF RS. 20.00 LAKHS IN THE OLD CURRENCY DENOM INATION, HAD BEEN SEIZED BY SST-FS TEAM ON .15.11.2016 FROM THE POSSESSION OF THE ASSESSEE SHRI PIYUSH KUMAR CHOUBEY AS NO SATISF ACTORY EXPLANATIONS AS WELL AS SUPPORTING DOCUMENTS WHICH COULD PROVE THE SOURCE OF THE CASH FOUND IN HIS POSSESSION. SUBSEQU ENTLY THE MATTER WAS REFERRED TO THE DEPARTMENT. THEREAFTER, ACTION U/S 132A OF THE ACT WAS INITIATED AND CONCLUDED ON 28.12.2016. DURI NG THE COURSE OF THE ABOVE PROCESS, THE STATEMENT, IT WAS STATED BY THE ASSESSEE THAT THE CASH SEIZED BY THE SST-FS TEAM OF DISTRICT ADMI NISTRATION WAS NOT ACCOUNTED FOR IN HIS REGULAR BOOKS OF ACCOUNTS AND OFFERED THE SAID AMOUNT OF RS. 20,00,000/- AS HIS ADDITIONAL IN COME FOR THE F.Y. 2016-17 RELEVANT TO A.Y. 2017-18. SUBSEQUENTLY, THE DDIT(INV)-II, NAGPUR HAS FORWARDED A COPY OF APPRAISAL REPORT AND OTHER RELEVANT PAPERS AND DOCUMENTS TO THE ITO-1, RAJNANDGAON VIDE HIS LETTER DATED 05.04.2017. THE ITO-1, RAJNANDGAON, IN TURN, HAS FORWARDED THE ABOVE DOCUMENTS VIDE HER LETTER DATED 25.07.201 9. ASSESSEE HAS ITA NO. 53/RPR/2021 (PIYUSH KUMAR CHOUBEY VS. PCIT) A.Y. 2017-18 - 3 - FILED HIS ITR FOR THE A.Y. 2017-18 ON 23.01.2018 SH OWING INCOME AT RS. 24,77,390/-. 4. THE CASE WAS SELECTED UNDER SCRUTINY BY ISSUANCE OF NOTICE UNDER S.143(2) OF THE ACT DATED 11.09.2018. THE AS SESSMENT WAS EVENTUALLY CARRIED OUT UNDER S.143(3) OF THE ACT VI DE ORDER DATED 28.12.2019. 5. AFTER THE COMPLETION OF THE ASSESSMENT, IN EXERC ISE OF POWER VESTED UNDER S.263 OF THE ACT, THE CASE RECORDS OF THE ASSESSMENT SO MADE WERE CALLED BY THE REVISIONAL COMMISSIONER, RA IPUR (PCIT). THE PCIT OBSERVED THAT IMPUGNED ASSESSMENT ORDER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. A SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE SEEKING TO TAX THE SURRENDER OF RS.20 LAKHS @ PROVIDED UNDER S.115BBE OF THE ACT . THE REVISIONAL ORDER WAS CONSEQUENTLY PASSED WHEREBY TH E AO WAS DIRECTED TO MAKE ADEQUATE ENQUIRIES FOR ISSUES RAIS ED IN THE REVISIONAL ORDER. 6. AGGRIEVED BY THE REVISIONAL ORDER, THE ASSESSEE PREFERRED APPEAL BEFORE THE TRIBUNAL. 7. WHEN THE MATTER WAS CALLED FOR HEARING, THE LEAR NED COUNSEL FOR THE ASSESSEE, AT THE OUTSET, RAISED ADDITIONAL GROUND UNDER RULE 11 OF THE INCOME TAX APPELLATE TRIBUNAL RULES, THE COPY OF WHICH WAS PLACED ON RECORD. THE LEARNED COUNSEL SUBMITTE D THAT IN THE INSTANT CASE THE VERY ASSESSMENT ORDER PASSED UNDER S.143(3) OF THE ACT DATED 28.12.2019, WHICH IS SOUGHT TO BE REVISED BY THE REVISIONAL COMMISSIONER UNDER S.263 OF THE ACT IS NONEST AND VOID AB INITIO. HE, THUS, CONTENDED THAT THE REVISIONAL ORDER PAS SED BY THE PCIT, APPEALED AGAINST, IS BAD IN LAW. ADVERTI NG TO THE FACTS, ITA NO. 53/RPR/2021 (PIYUSH KUMAR CHOUBEY VS. PCIT) A.Y. 2017-18 - 4 - THE LEARNED COUNSEL REFERRED TO PARA 3 OF THE ASSES SMENT ORDER AND POINTED OUT THAT, IN THE INSTANT CASE, A REQUISITIO N UNDER S.132A OF THE ACT DATED 22.12.2016 WAS ISSUED BY THE PR.DIT ( INV.), NAGPUR REQUIRING CASH OF RS.20 LAKHS TO BE COLLECTED FROM DISTRICT TREASURY OFFICER, GONDIA. IT IS CATEGORICALLY STAT ED IN THE ASSESSMENT ORDER THAT ACTION UNDER S.132A OF THE AC T WAS INITIATED IN THE CASE OF THE ASSESSEE AND CONCLUDED ON 28.12. 2016. IN THE COURSE OF THE ABOVE PROCESS, THE STATEMENT OF THE A SSESSEE WAS ALSO RECORDED UNDER S.131 OF THE ACT. IN THIS BACKGROUN D, THE LEARNED COUNSEL SUBMITTED THAT THE AO COULD NOT HAVE COMPLE TED THE ASSESSMENT UNDER S.143(3) OF THE ACT IN VIEW OF THE SCHEME OF ASSESSMENT LAID DOWN UNDER S.153B OF THE ACT. IT W AS POINTED OUT THAT NO SUCH NOTICE UNDER S.153A OF THE ACT WAS ISS UED AND NO ASSESSMENT WAS CARRIED OUT UNDER S.153A OF THE ACT, WHICH WAS INCUMBENT UPON THE AO HAVING INVOKED SECTION 132A O F THE ACT. IT WAS, THUS, POINTED OUT THAT THE ASSESSMENT FRAMED U NDER S.143(3) OF THE ACT IS BAD IN LAW AND NULL AND VOID IN SO FAR A S IT IS WITHOUT JURISDICTION OF THE AO. CONSEQUENTLY, INVOCATION O F SECTION 263 OF THE ACT TO IMPROVISE SUCH NONEST ORDER IS ALSO AN ACT OF NULLITY. THE LEARNED COUNSEL, THUS, SUBMITTED THAT THE REVISIONA L ORDER UNDER S.263 OF THE ACT IS REQUIRED TO BE QUASHED ON THE G ROUND ALONE. IT WAS SECONDLY CONTENDED THAT WITHOUT PREJUDICE TO TH E FIRST PLEA, THE ASSESSMENT UNDER S.153A OF THE ACT IS REQUIRED TO B E COMPLETED WITHIN 2 YEARS FROM THE END OF THE FINANCIAL YEAR I N WHICH THE REQUISITION WAS MADE IN VIEW OF THE LIMITATION PLAC ED UNDER S.153B OF THE ACT. IN THE CONTEXT, IT WAS SUBMITTED THAT THE ASSESSMENT ORDER WAS FIRSTLY FRAMED WRONGLY UNDER S.143(3) OF THE ACT AS SUBMITTED ABOVE AND SECONDLY, THE ASSESSMENT WAS FR AMED ON 28.12.2019 AS AGAINST THE DAY OF CONCLUSION OF REQU ISITION UNDER S.132A OF THE ACT ON 28.12.2016. THE ASSESSMENT IS THUS CLEARLY TIME BARRED HAVING REGARD UNDER S.153B OF THE ACT. THE IMPUGNED ITA NO. 53/RPR/2021 (PIYUSH KUMAR CHOUBEY VS. PCIT) A.Y. 2017-18 - 5 - ASSESSMENT ORDER IS, THUS, A NULLITY ON THIS SCORE TOO. THE LEARNED COUNSEL, THUS, SUBMITTED THAT THE PCIT MIS-DIRECTED HIMSELF IN LAW AND ON FACTS IN SEEKING TO REVISE A PATENTLY ILLEGA L ASSESSMENT ORDER WHICH IS A NULLITY AT THE THRESHOLD. HE, THUS, URG ED FOR QUASHING OF THE REVISIONAL ORDER PASSED UNDER S.263 OF THE ACT IN QUESTION. 8. THE REVENUE, ON THE OTHER HAND, DEFENDED THE ACT ION OF THE PCIT. 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. THE ASSESSEE HAS RAISED A LEGAL POINT WHEREBY IT HAS BE EN CONTENDED THAT THE ASSESSMENT ORDER FRAMED, WHICH IS SUBJECT MATTE R OF REVISION, IN ITSELF, IS NULL AND VOID AND THEREFORE SUCH NULL AN D VOID ORDER WHICH HAS NO LEGAL EFFECT IN LAW CANNOT BE PERFECTED BY E XERCISE OF POWER UNDER S.263 OF THE ACT. THE ASSESSEE CONTENDS THAT WHEN A REQUISITION HAS BEEN MADE UNDER S.132A OF THE ACT, THE JURISDICTION TO COMPLETE THE ASSESSMENT IS GOVERNED BY THE PROVI SIONS OF SECTION 153A OF THE ACT. THE NORMAL PROVISIONS OF ASSESSME NT UNDER S.143(3) OF THE ACT WOULD NOT APPLY IN THE CASE WHE RE ACTION HAS BEEN TAKEN EITHER UNDER S.132 OF THE ACT OR UNDER S .132A OF THE ACT. THE ASSESSMENT, HOWEVER, HAS BEEN WRONGLY FRAMED WI TH THE AID OF SECTION 143(3) UNDER THE NORMAL PROVISIONS OF THE A CT. THE ASSESSEE, THUS, CONTENDS THAT THE ASSESSMENT MADE U NDER S.143(3) OF THE ACT IN PURSUANCE OF REQUISITION UNDER S.132A OF THE ACT IS GROSSLY OPPOSED TO THE VERY SCHEME OF THE ACT AND S UCH ASSESSMENT IS WHOLLY UNSUSTAINABLE IN LAW. THE ASSESSEE CONTE NDS THAT AN AB INITIO VOID ORDER CANNOT BE SUBJECT TO REVISION UNDER S.2 63 OF THE ACT. TO SUPPORT THE PLEA, A REFERENCE WAS MADE TO THE DECISION IN CIT VS KALYAN SOLVENT EXTRACTION LTD. (2005) 276 IT R 154 (MP) AND M/S. SUPERSONIC TECHNOLOGIES PVT. LTD. VS. PCIT ITA NO. 2269/DEL/2017 ORDER DATED 10.12.2018. ITA NO. 53/RPR/2021 (PIYUSH KUMAR CHOUBEY VS. PCIT) A.Y. 2017-18 - 6 - 8. WE FIND CONSIDERABLE SUBSTANCE IN THE PLEA OF TH E ASSESSEE. THE ORDER WHICH IS A NULLITY IN LAW AND HAS NO LEGA L EFFECT, CANNOT BE REVISED UNDER S.263 OF THE ACT. THE ASSESSMENT ORDER BEING INFRUCTUOUS IN LAW, THE CONSEQUENTIAL ACTION UNDER S.263 OF THE ACT IS EQUALLY INFRUCTUOUS. THE ASSESSMENT, IN THE INS TANT CASE, HAS NOT BEEN FRAMED UNDER S.153A OF THE ACT DESPITE REQUISI TION UNDER S.132A OF THE ACT. THE ERROR COMMITTED BY THE AO I N CONTRAVENTION OF EXPRESS PROVISIONS OF ACT IS INCURABLE AND HAS R ENDERED THE ASSESSMENT VOID AB INITIO AND A NULLITY IN LAW. SUCH ASSESSMENT ORDER BEING DEVOID OF ANY LEGAL EFFECT COULD NOT BE REVISED. THE REVISIONAL ORDER IS ACCORDINGLY QUASHED AND SET ASI DE. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . SD/- SD/- (N. K. CHOUDHRY) (PRADIP KUMA R KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER TRUE COPY S. K. SINHA / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT 4. ,- / CIT (A) /. 012 33*+4 *+#4 / DR, ITAT, RAIPUR 5. 267 8 / GUARD FILE. BY ORDER 4 SR. PRIVATE SECRETARY ITAT 4 RAIPUR (ON TOUR) ORDER PRONOUNCED ON 11 / 1 0/2021 BY PLAC ING THE RESULT ON THE NOTICE BOARD AS PER RULE 34(4 ) OF THE INCOME TAX (APPELLATE TRIBUNAL) RULE, 1963.