The ITO, Ward-10(4), Ahmedabad V. Smt. Smita S.Patel, Ahmedabad

ITA 575/AHD/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94237 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 05-08-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 06-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PRAVIN KUMAR
• Keywords: Search and seizure; Tax effect
• Section: 142(1); 148; 6; 132; 144; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV JUDICIAL MEMBER AND ANIL CHATURVEDI ACCOUNTANT MEMBER I.T.A. NO.575/AHD/2012 (ASS TT. YEAR 2003-04) INCOME TAX OFFICER, WARD 10(4), NARAYAN CHAMBERS, ASHRAM ROAD, AMEDABAD. PAN AAMPP 7977 M VS SMT. SMITA S. PATEL, 6 TH FLOOR, SHIKHAR BUILDING, NAVRANGPURA, AHMEDABAD. (APPELLANT) (RESPONDENT) APPELLANT BY SHRI PRAVIN KUMAR, SR. D.R. REVENUE BY NONE. / DATE OF HEARING : 05- 08-2015 / DATE OF PRONOUNCEMENT: 11/08/2015 / O R D E R PER ANIL CHATURVEDI ACCOUNTANT MEMBER: THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORD ER OF CIT (A)-V, SURAT DATED 28-11-2011 FOR ASSESSMENT YEAR 2008-09. 2. IN THIS CASE, THE NOTICE FIXING THE DATE OF HEAR ING WAS SENT TO ASSESSEE THROUGH REGISTERED A.D. ON 26-6-2015 BUT T HE NOTICE WAS RETURNED UNDELIVERED BY POSTAL AUTHORITIES WITH THE REMARKS NOT ITA NO 575/AHD/2012 ASSESSMENT YEAR 2003-04 SMITA S. PATEL. 2 KNOWN. THE ASSESSEE HAS ALSO NOT INTIMATED THE NE W ADDRESS. ON THE DATE OF HEARING SINCE NO ONE APPEARED ON BEHALF OF THE ASSESSEE, THE APPEAL IS DECIDED EX-PARTE QUA THE ASSESSEE AND ON THE BASIS OF MATERIAL ON RECORD. 3. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI AL ON RECORD ARE AS UNDER. 4. IN THIS CASE, THE ASSESSING OFFICER HAS NOTED TH AT ON THE BASIS OF SEARCH AND SEIZURE ACTION U/S. 132 OF THE ACT WHICH WAS CARRIED IN THE CASE OF MAHASAGAR SECURITIES PVT. LTD., AND ITS GRO UP COMPANIES, IT WAS NOTICED THAT SHRI MUKESH M. CHOKSHI ONE OF THE DIRE CTOR OF MAHASAGAR SECURITIES PVT. LTD., HAD FLOATED VARIOUS COMPANIES OF WHICH SOME WERE LISTED IN AHMEDABAD STOCK EXCHANGE AND PUNE STOCK E XCHANGE, THOSE COMPANIES WERE NOT HAVING ANY GENUINE BUSINESS AND WERE ENGAGED IN THE BUSINESS OF ISSUING BOGUS BILLS FOR PROVIDING L ONG TERM CAPITAL GAIN AND LOSS. FROM THE LIST OF CLIENTS THAT WAS EXTRACT ED FROM THE COMPUTER SEIZED FROM OFFICE PREMISES OF THE GROUP, IT WAS FO UND TO BE HAVING MORE THAN 3000 BENEFICIARIES AND OF WHICH ASSESSEE WAS ONE OF THE BENEFICIARY WHO WAS STATED TO HAVE TAKEN BENEFIT IN THE FORM OF CAPITAL GAIN/SPECULATIVE PROFIT/BOGUS CAPITAL LOSS OF RS.7, 54,945/-. ASSESSING OFFICER HAS NOTED THAT ASSESSEE HAD NOT FILED RETUR N OF INCOME AND ACCORDINGLY ASSESSEE WAS ISSUED NOTICE U/S. 148 AND EVEN IN RESPONSE TO THE NOTICE ASSESSEE DID NOT FILE ANY RETURN OF I NCOME. ASSESSING OFFICER ACCORDINGLY FRAMED EX-PARTE ORDER U/S. 144 AND CONSIDERED THE BENEFIT OF RS.7,54,945/- ALLEGED TO HAVE BEEN RECEI VED FROM MAHASAGAR SEURITIES PVT. LTD. BY THE ASSESSEE AS INCOME FROM UNDISCLOSED SOURCE. AGGRIEVED BY THE ORDER OF A.O ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT (A) WHO GRANTED PARTIAL RELIEF TO THE ASSES SEE BY HOLDING AS UNDER :- ITA NO 575/AHD/2012 ASSESSMENT YEAR 2003-04 SMITA S. PATEL. 3 2.2. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE C ASE AND THE SUBMISSION OF THE LD. COUNSEL. IT IS EVIDENT FROM T HE AFORESAID SUBMISSION OF THE LD. COUNSEL THAT THE APPELLANT IS REGULARLY ASSESSED TO INCOME TAX BUT NEVER FILED HER RETURN O F INCOME WITH THE INCOME TAX OFFICER, WARD 10(4), AHMEDABAD. IN T HE RETURNS OF INCOME FILED FOR THE A.YS. 2003-04 TO 2008-09, T HE ADDRESS SHOWN BY THE ASSESSEE WAS AS UNDER:- ASSTT. YEAR ADDRESS JURISDICTIONAL ITO 2003-04 RAM BNIVAS-1, KHANPUR, AHMEDABAD. ITO WARD 3(4) 2004-05 -DO- -DO- 2005-06 -DO- -DO- 2006-07 -DO- -DO- 2007-08 -DO- -DO- 2008-09 FLAT NO.505/506, KAIVANNA, AMBAWADI, AHMEDABAD. ITO WARD 10(3) 2.3. IT IS EVIDENT FROM THE ABOVE TABLE THAT THE IN COME TAX OFFICER, WARD 10(4), AHMEDABAD WAS NEVER HAVING THE JURISDICTION OVER THE ASSESSEE. IT IS SEEN FROM THE NOTICE U/S. 148 DATED 31-3- 2010, NOTICE U/S. 142(1) DATED 15-11-2010, NOTICE D ATED 22-12- 2010, 22-11-2010 AND 26-11-2010 AND ALSO FROM ASSES SMENT ORDER DATED 23-12-2010 THAT THE ADDRESS OF THE ASSE SSEE IN THE AFORESAID NOTICES AS WELL AS IN THE ASSESSMENT ORDE R WAS 6 TH FLOOR, SHIKHAR BUILDING, NAVRANGPURA, AHMEDABAD WHEREAS N O SUCH ADDRESS WAS EVER DISCLOSED BY THE ASSESSEE IN HER R ETURNS OF INCOME SO FILED FOR THE A.Y. 2003-04 TO 2008-09. IT IS THUS CORRECT TO SAY THAT NO ANY NOTICE U/S.148 OF THE ACT WAS VA LIDLY SERVED UPON THE ASSESSEE. IT IS NOTICED FROM THE COPY OF ACKNOWLEDGEMENT DATED 30-9-2003 OF ACIT FOR FILING OF RETURN OF INCOME FOR THE A.Y. 2003-04 THAT THE ASSESSEE HAD D ISCLOSED THE INCOME OF RS.26,33,650/- WHEREAS THE INCOME TAX OFF ICER, WARD 10(4), AHMEDABAD HAD ASSESSED THE INCOME AT RS.7,54 ,945/-. THERE IS NO JUSTIFICATION FOR ACCEPTING THE ASSESSE D INCOME OF RS.7,54,945/- AS AGAINST HE RETURNED INCOME OF RS. 26,33,650/-. 2.4. CONSIDERING THE FACTS OF THE CASE, I AM OF THE OPINION THAT THE INCOME TAX OFFICER, WARD 10(4), AHMEDABAD WAS N OT HAVING THE JURISDICTION OVER THE ASSESSEE, THE NOTICE U/S. 148 OF THE ACT WAS NOT SERVED UPON THE ASSESSEE AT HER CORRECT MAI LING ADDRESS AVAILABLE ON THE RETURNS OF INCOME FILED FOR THE A. Y. 2003-04 TO A.Y. 2008-09 AND THE ASSESSED INCOME OF RS.7,54,945 /- CANNOT BE ACCEPTED AS AGAINST THE RETURNED INCOME OF RS.26 ,33,650/-. ITA NO 575/AHD/2012 ASSESSMENT YEAR 2003-04 SMITA S. PATEL. 4 THEREFORE, THE ORDER PASSED BY THE ITO WARD 10(4), AHMEDABAD IS WITHOUT JURISDICTION AND IS VOID AB INITIO AND D ESERVES TO BE ANNULLED. THE ASSESSMENT ORDER IS THEREBY ANNULLED AND THE FIRST GROUND OF APPEAL IS ACCORDINGLY ALLOWED. 5. AGGRIEVED BY THE ORDER OF LD.CIT (A), REVENUE I S NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS:- 1. THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS I N DELETING THE ADDITION OF RS.7,54,945/- WITHOUT CONSIDERING THE M ERITS OF THE CASE AND ALLOWING THE APPEAL OF THE ASSESSEE ON TEC HNICAL GROUNDS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFF ICER. 3. IT IS, THEREFORE, PRAYED TAT THE ORDER OF THE LD . CIT (A) MAY BE SET ASIDE AND THAT THE ORDER OF THE ASSESSING OF FICER BE RESTORED TO THE ABOVE EXTENT. 6. WE FIND THAT THE PRESENT APPEAL HAS BEEN FILED B Y THE REVENUE ON 6-3-2012 AND ACCORDINGLY THE MONETARY LIMIT FOR FIL ING APPEALS FIXED BY C.B.D.T., VIDE INSTRUCTION DATED 9-2-2011 WOULD BE APPLICABLE IN THE PRESENT CASE. ON PERUSAL OF THE GROUNDS OF APPEAL, IT IS SEEN THAT REVENUE IS AGGRIEVED BY THE DELETION OF ADDITION OF RS.7,54,945/-, THE TAX EFFECT OF WHICH WOULD BE AROUND RS.2.26 LACS WH ICH IS BELOW THE MONETARY LIMIT OF RS.3 LACS STIPULATED BY CBDT IN T HE AFORESAID INSTRUCTIONS. BEFORE US, LD. D.R. HAS ALSO NOT PLAC ED ANY MATERIAL ON RECORD TO DEMONSTRATE THAT THE ISSUE IN THE PRESENT CASE IS COVERED BY THE EXEMPTION SPECIFIED IN CLAUSE (8) OF THE AFORES AID CBDT INSTRUCTION AND THEREFORE THE INSTRUCTIONS OF THE CIRCULAR FOR NOT FILING THE APPEAL BASED ON MONETARY LIMITS WOULD BE NOT APPLICABLE. I N SUCH CIRCUMSTANCES, WITHOUT EXPRESSING ANY OPINION ON ME RITS OF THE CASE, WE ARE OF THE VIEW THAT THE PRESENT APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE AND ACCORDINGLY DISMISS THE SAME ONLY ON THE BASIS OF CBDT INSTRUCTIONS REFERRED TO HEREINABOVE. ITA NO 575/AHD/2012 ASSESSMENT YEAR 2003-04 SMITA S. PATEL. 5 7. IN THE RESULT APPEAL OF THE REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE COURT ON TUESDAY, THE 11 TH AUGUST, 2015 AT AHMEDABAD. SD/- SD/- (RAJPAL YADAV) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER PATKI AHMEDABAD. DATE:-11/08/2015 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! / CONCERNED CIT 4. ! () / THE CIT(A), AHMEDABAD 5. $%& '', , )*++ / DR, ITAT, AHMEDABAD 6. &,- . / GUARD FILE. / BY ORDER, / ( DY./ASSTT.REGISTRAR) ! '#$, &' / ITAT, AHMEDABAD. 1. DATE OF DICTATION- 5-8-2015 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER :6-8-2015 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P .S./P.S. - 10-8-2015 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 11-8-2015: 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 11-8-2015 : 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 8. DATE OF DESPATCH OF THE ORDER ITA NO 575/AHD/2012 ASSESSMENT YEAR 2003-04 SMITA S. PATEL. 6