M/s. Shree Lakshmi Finance Corporation, Puttur V. Deputy commissioner of Income- Tax, Central Circle, Mangaluru

ITA 572/BANG/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7902 (ITAT-BANGALORE)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 09-07-2019
• Assessment Year: 2000-2001
• Appeal Filed On: 22-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P V PRADEEP KUMAR
• Assessee Lawyers: V SRINIVASAN
• Keywords: Document seized; Documents seized
• Section: 143(3); 133A; 153A; 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCHES C BENCH: BANGALORE BEFORE SHRI A.K. GARODIA, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA. NO. 572 & 573 /BANG/201 9 (ASSESSMENT YEAR S : 2000 - 01 & 2002 - 03 ) M/S. SHREE LAKSHMI FINANCE CORPORATION, NEAR POST OFFICE, MAIN ROAD, ALANGAR, PUTTUR TALUK, D.K. 574 241 PAN: ABAFS 1171P VS. DY. COMMISSIONER OF INCOME TAX , CENTRAL CIRCLE, MANGALURU . (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI V. SRINIVASAN, ADVOCATE. REVENUE BY: DR. P. V. PRADEEP KUMAR, ADDL. CIT (D.R) DATE OF HEARING : 09.07 .2019 DATE OF PRONOUNCEMENT : 19 .07 .2019 O R D E R PER SHRI PAVAN KUMAR GADALE, JM : THE ASSESSEE HAS FILED APPEALS AGAINST THE DIFFERENT ORDERS OF COMMISSIONER OF INCOME TAX (APPEALS), MANGALORE UNDER SECTION 143(3) AND 250 OF THE INCOME TAX ACT, 1961. SINCE BOTH THE APPEALS HAVE A COMMON ISSUE AND IDENTICAL, THEY ARE CLUBBED TOGE THER AND COMMON ORDER IS PASSED. FOR THE SAKE OF CONVENIENCE, WE SHALL TAKE UP ITA NO.572/BANG/2019 FOR THE ASSESSMENT YEAR 2000 - 01. 2. THE ASSESSEE HAS RAISED GROUNDS OF APPEAL IN ITA NO.572/BANG/2019 AS UNDER : 2 ITA NO.572 & 573/BANG/2019 3 ITA NO.572 & 573/BANG/2019 3 THE BRIEF FACTS OF THE CA SE ARE THAT THERE WAS A SEARCH OPERATION IN THE CASE OF SHRI E. KRISHNA MURTHY ON 29.7.2004 AND ASSESSEE NAME WAS INCLUDED IN THE WARRANT WHERE THE ASSESSEE IS ENGAGED IN FINANCE BUSINESS AND SURVEY UNDER SECTION 133A OF THE ACT CARRIED OUT BY THE REVEN UE. SUBSEQUENTLY A NOTICE UNDER SECTION 153A(A) WAS ISSUED FOR FILING RETURN OF INCOME . THE ASSESSEE HAS CONTESTED THE VALIDITY OF THE SEARCH AND THE SUBMISSIONS ARE REFERRED AT PARA 6 OF THE ASSESSMENT ORDER . W HEREAS THE ASSESSING OFFICER FINALLY DU E TO NON - PRODUCTION OF THE D ETAILS MADE AN ADDITION OF RS.1,02,620 AND PASSED UNDER SECTION 153A R.W. S. 143(3) OF THE ACT DT.27.12.2006. AGGRIEVED BY THE ORDER, THE ASSESSEE HAS FILED AN APPEAL WITH THE CIT(APPEALS). THE ASSESSEE HAS CHALLENGED THE OR DER PASSED UNDER SECTION 153A R.W. S. 143(3) OF THE ACT AS THERE WAS ONLY A SURVEY OPERATION . HENCE ASSESSMENT CANNOT BE FRAMED UNDER ABOVE PROVISIONS AND ALSO IN THE CASE OF SEARCH OPERATION IN THE PREMISES OF SHRI E. VIDYA RANYA AND SHRI E. KRISHNAMURTHY, NO INCRIMINATING MATERIAL IS FOUND WHICH BELONG TO THE ASSESSEE OR SEIZED DOCUMENTS. BUT THE CIT(APPEALS) REJECTED THIS GROUND OF APPEAL AND CONFIRMED THE ACTION OF ASSESSING OFFICER IN PASSING THE ORDER UNDER SECTION 153A AND DISMISSED T HE ASSESSEE'S APPEAL. AGGRIEVED BY THE ORDER, THE ASSESSEE HAS FILED AN APPEAL WITH THE TRIBUNAL. 4. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT THE CIT(APPEALS) HAS ERRED IN CONFIRMING THE ASSESSMENT UNDER SECTION 153A R.W. S. 143(3) OF T HE ACT AS 4 ITA NO.572 & 573/BANG/2019 THERE WAS ONLY SURVEY OPERATION IN THE CASE OF ASSESSEE AND IN THE CASE OF SEARCH. ON OTHER GROU P , NO INCRIMINATING MATERIAL PERTAINING TO ASSESSEE WAS FOUND. THE LEARNED AUTHORISED REPRESENTATIVE ALSO REFERRED TO THE PAPER BOOK FILED IN THE COURSE OF HEARING IN PART ICULAR WRITTEN SUBMISSIONS AND ALSO DEMONSTRATED THE CONTENTS OF PANCHANAMA. CONTRA, THE LEARNED DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDERS OF CIT(APPEALS). 5 . WE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL O N RECORD. PRIMA FACIE, THE CONTENTION OF THE LEARNED AUTHORISED REPRESENTATIVE THAT THE CIT(APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN PASSING THE ORDER UNDER SECTION 153 A R.W. S. 143(3) OF THE ACT IRRESPECTIVE OF THE FACT T HAT THE ASSESSEE'S NAME IS NOT INCLUD E D IN THE SEARCH WARRANT . THE LD. AR DEMONSTRATED WITH THE COPY OF PANCHANAMA PLACED AT PAGE 1 OF PAPER BOOK AND THE LEARNED DEPARTMENTAL REPRESENTATIVE COULD NOT CONTROVERT THE SUBMISSIONS . WE FIND CIT (APPEALS) HAS DEALT ON THIS DISPUTED ISSUE AT PAR A 5.4 OF THE ORDER BUT THERE IS NO PROPER FINDINGS OF FACTS AND DECISION ON THE DISPUTED ISSUE THAT WHETHER THE NAME OF THE ASSESSEE IS INCLUDED IN SEARCH WARRANT. BUT CONFIRMED THE ACTION OF T HE ASSESSING OFFICER. FURTHER THE LD. AR FURTHER SUBMITTED THAT THE SEARCH WARRANT DOES NOT INDICATE NAME OF THE ASSESSEE. CONTRA, THE LEARNED DEPARTMENTAL REP RESENTATIVE SUBMITTED THAT THE A SSESSMENT RECORDS HAVE TO BE VERIFIED TO SUBSTANTIATE WHETHE R THE SEARCH WARRANT WAS IN THE NAME OF ASSESSEE . WE ARE OF 5 ITA NO.572 & 573/BANG/2019 THE OPINION THAT THE ASSESSEE HAS RAISED THE GROUND OF APPEAL BEFORE THE CIT(APPEALS) ON THIS DISPUTED ISSUE, AND CIT (APPEALS) DEALT ON ISSUE BUT THERE IS NO FINDING THAT INCRIMINATING DOCUM ENTS RELATE TO THE ASSESSEE WAS FOUND IN SEARCH. HENCE WE ARE OF THE SUBSTANTIVE OPINION THAT THE MATTER NEEDS TOBE RELOOKED BASED ON THE SEARCH WARRANT AND WE RESTORE ENTIRE ISSUES TO THE FILE OF CIT (APPEALS) TO ADJUDICATE AFRESH AND P A S S A REASONABLE AND S PEAKING ORDER AND FURTHER THE ASSESSEE BE PROVIDED ADEQUATE OPPORTUNITY OF HEARING AND SHALL CO - OPERATE IN SUBMITTING THE INFORMATION FOR EARLY DISPOSAL OF APPEAL AND ALLOW THE GROUND OF APPEAL FOR STATISTICAL PURPOSE . 6 . SIMILARLY IN ITA NO.573/BAN G/2019, THE FACTS ARE SIMILAR AND IDENTICAL. APPLYING THE R ATIO HELD IN THE CASE OF ITA 572/BANG/2019, WE REMIT THE MATTER TO THE FILE OF CIT(APPEALS) FOR ADJUDICATING FRESH AND ALLOW THE GROUNDS OF ASSESSEE'S APPEAL FOR STATISTICAL PURPOSES. 7 . IN T HE RESULT, BOTH APPEALS OF ASSESSEE ITA NOS.572/BANG/2019 AND 573/BANG/2019 ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 1 9 T H JULY, 2019. S D / - S D / - (A.K. GARODIA) (PAVAN KUMAR GADALE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 1 9 .07. 2019. *REDDY GP 6 ITA NO.572 & 573/BANG/2019 COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT (A) 4. PR. CIT 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME - TAX APPELLATE TRIBUNAL BANGALORE