B.S. Ashok Kumar, Davangere V. ACIT, Davangere

ITA 579/BANG/2010

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 1607 (ITAT-BANGALORE)
• Duration Of Justice: 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-01-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 27-01-2011
• Assessment Year: 1998-1999
• Appeal Filed On: 22-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G V GOPALA RAO CITI
• Assessee Lawyers: S VENKATESAN
• Keywords: Unexplained investment; Recovery proceedings; Opportunity of being heard; Block assessment
• Section: 143(3); 142(1); 234B; 148

Judgement Text

PAGE 1 OF 10 ITA NO.577 TO 579/BANG/2010 1 IN THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH A BEFORE SHRI GEORGE GEORGE K., J.M. AND SHRI A MOHAN ALANKAMONY, A.M. ITA NO.577 TO 579/BANG/2010 (ASST. YEARS 1995-96, 1996-97 & 1998-99) SHRI B S ASHOK KUMAR, #673, CHOWKIPET, DAVANGERE. - APPELLANT VS THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE-1, DAVANGERE. - RESPONDENT APPELLANT BY : SHRI S VENKATESAN, C.A. RESPONDENT BY : SHRI G V GOPALA RAO, CIT-I O R D E R PER GEORGE GEORGE K : THESE THREE APPEALS PREFERRED BY THE ASSESSEE AR E DIRECTED AGAINST SEPARATE ORDERS OF THE CIT(A), HUB LI. THE RELEVANT ASSESSMENT YEARS ARE 1995-96, 1996-97 AND 1998-99. THE ORDERS OF THE CIT(A) EMANATE FROM THE ORDERS OF THE AO GIVING EFFECT TO THE ITAT ORDER DATED 31.1.2008. 2. IDENTICAL GROUNDS ARE RAISED IN THESE APPEALS E XCEPT FOR VARIATIONS IN ADDITIONS MADE ON MERITS. 3. THE ASSESSEE HAS RAISED TEN GROUNDS. GROUND NO S.1, 9 AND 10 ARE GENERAL IN NATURE AND NO SPECIFIC ADJUDI CATION IS CALLED FOR AND HENCE, THEY ARE DISMISSED. PAGE 2 OF 10 ITA NO.577 TO 579/BANG/2010 2 3. GROUND NO.8 RELATES TO LEVY OF INTEREST U/S 234B OF THE ACT. 3.1 LEVY OF INTEREST U/S 234B IS MANDATORY AND CONSE QUENTIAL IN NATURE AND HENCE, THIS GROUND IS DISMISSED. 4. IN THE OTHER GROUNDS, THE ASSESSEE HAS CHALLENG ED THE VALIDITY OF THE ORDERS PASSED BY THE AO WHILE GIVING EFFECT TO THE ORDER OF THE ITAT, THE VALIDITY OF SEARCH PROCEEDING S AND THE ADDITIONS MADE ON MERITS. ITA NO.577/BANG/2010 5. THE BRIEF FACTS OF THE CASE ARE AS FOLLOWS:- THE ASSESSEE WAS ORIGINALLY ASSESSED UNDER THE OR DER OF BLOCK ASSESSMENT DATED 29/11/1999 ON A TOTAL INCOME OF RS.8,88,590/-. THE BLOCK ASSESSMENT WAS CHALLENGED BEFORE THE FIRST APPELLATE AUTHORITY, WHO PARTLY ALLOWED THE APPEAL. ON FURTHER APPEAL, THE TRIBUNAL VIDE ITS COMMON ORDER DATED 31/1/2008 IN ITA NO.107/BANG/2002 CANCELLED THE ASSESSMENT ON THE GR OUND OF LIMITATION AND DID NOT ADJUDICATE THE ISSUE ON MERI TS. THE RELEVANT FINDINGS OF THE TRIBUNAL AT PARA 34.9 AT PAGE 135 R EADS AS FOLLOWS:- 34.9 SINCE WE ARE HOLDING THAT THE ASSESSMENT ORDERS ARE BARRED BY LIMITATION AND SUCH ORDERS ARE BEING CANCELLED, THEREFORE, WE ARE NOT ADJUDICATING THE ISSUES ON MERIT. 5.1 THUS, THE TRIBUNAL CANCELLED THE BLOCK ASSESSM ENT ORDER PASSED IN THE CASE OF ASSESSEE WITHOUT ADJUDICATING THE ISSUE ON PAGE 3 OF 10 ITA NO.577 TO 579/BANG/2010 3 MERITS. THE AO, WHILE GIVING EFFECT TO THE ITAT OR DER, PASSED ORDER ON 30.12.2008 FOR THE CONCERNED ASST. YEAR MAKING CE RTAIN ADDITIONS. 6. AGGRIEVED BY THE ORDER OF THE AO GIVING EFFECT T O THE ITAT ORDER, THE ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A) AND CONTENDED THAT ONCE A BLOCK ASSESSMENT ORDER IN THE CASE OF THE ASSESSEE IS CANCELLED BY THE TRIBUNAL WITHOUT ADJUDI CATING THE ISSUE ON MERITS, THE PROTECTIVE ADDITION MADE IN THE CASE OF THE ASSESSEE GETS AUTOMATICALLY DELETED. IT WAS FURTHER ARGUED THAT THE AO HAS NOT ASSUMED THE JURISDICTION VALIDLY BY ISSUING NOTICE U /S 142(1) OR U/S 148 AND THEREFORE, THE ORDER PASSED BY THE AO IS INVALID , WITHOUT ASSUMPTION OF JURISDICTION. 7. THE CIT(A), HOWEVER, DISMISSED THE APPEALS OF T HE ASSESSEE BY HOLDING THAT ITAT HAS GIVEN A CLEAR FIND ING WHILE DELETING THE ADDITION IN THE CASE OF THE FIRM, THAT ADDITION IS REQUIRED TO BE MADE IN THE HANDS OF THE ASSESSEE. THEREFORE, THE A.O. HAS VALIDLY ASSUMED THE JURISDICTION WHILE GIVING EFFECT TO THE ORDER OF THE ITAT. 8. AGGRIEVED BY THE ORDER PASSED BY THE FIRST APPELL ATE AUTHORITY, THE ASSESSEE HAS PREFERRED THIS APPEAL BE FORE US. 9. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW. 10. ON THE OTHER HAND, THE LEARNED DR SUPPORTED TH E FINDINGS/CONCLUSIONS OF THE CIT(A). PAGE 4 OF 10 ITA NO.577 TO 579/BANG/2010 4 11. WE HAVE HEARD THE RIVAL SUBMISSION AND PERUSED THE MATERIAL ON RECORD. THE BLOCK ASSESSMENT IN THE CA SE OF THE ASSESSEE WAS PASSED ON 29.11.1999 ON THE TOTAL INCOME OF RS. 8,88,590/-. FOR THE CONCERNED ASST. YEAR, THE AO HAD MADE ADDITION O F RS.1,81,000/- AND RS.2,78,043/- AS UNEXPLAINED INVESTMENT IN PURC HASE OF SITE FOR AYS 1995-96 AND 1998-99 RESPECTIVELY AND ADDITION OF RS.2,62,806/- FOR AY 1996-97 AS UNEXPLAINED INVESTMENT IN FIXED D EPOSITS ON PROTECTIVE BASIS IN THE HANDS OF THE ASSESSEE AND S UBSTANTIVE ADDITION WAS MADE IN THE HANDS OF THE FIRM M/S B N B TRADING CO. THE TRIBUNAL IN ITS COMMON ORDER HAD DELETED CERTAIN AD DITIONS MADE IN THE HANDS OF THE FIRM, BUT THE BLOCK ASSESSMENT MAD E IN THE HANDS OF THE ASSESSEE WAS CANCELLED BY HOLDING THE SAME TO BE BARRED BY LIMITATION. 11.1 ALTHOUGH THE TRIBUNAL VIDE ORDER CITED SUPRA HAS CANCELLED THE BLOCK ASSESSMENT IN THE CASE OF THE A SSESSEE AND DID NOT GO INTO THE ISSUE ON MERITS, THE A.O. WHILE GIV ING EFFECT TO THE ORDER OF THE ITAT, INDEPENDENTLY PASSED SEPARATE OR DERS FOR THE ASST. YEARS CONCERNED, NAMELY, 1995-96, 1996-97 AND 1 998-99 WITHOUT EVEN GIVING NOTICE TO THE ASSESSEE AND ALSO NOT GIV ING OPPORTUNITY OF BEING HEARD IN PERSON BEFORE THE ORDERS WERE PASSED . THE AO HAS ALSO CHARGED INTEREST U/S 234B OF THE ACT, WHICH CA NNOT BE LEVIED IN THE BLOCK ASSESSMENT AT ALL. 11.2 IN THE ORDER OF THE AO, IT IS STATED AS UNDER :- CONSEQUENT ON THE DECISION OF THE HONBLE ITAT BENCH A BANGALORE IN THEIR ORDER IN ITA NO.107/BANG/2002 DATED 31/01/2008 THE PAGE 5 OF 10 ITA NO.577 TO 579/BANG/2010 5 FOLLOWING AMOUNTS NEEDS TO BE BROUGHT TO TAX IN THE HANDS OF THE ASSESSEE. THE TOTAL INCOME OF THE ASSESSEE FOR THE ABOVE SAID ASSESSMENT YEAR IS AS UNDER. THE INCOME TAKEN IS THE INCOME ORIGINALLY RETURNED A ND ALSO CERTAIN ADDITIONS ARE MADE SUBSTANTIVELY. THIS ORDER IS PUR PORTED TO BE PASSED CONSEQUENT TO THE DECISION OF THE ITAT IN IT (SS)A NO.107/BANG/2002 DATED 31/1/2008. WHEN THE ITAT HA S NOT DEALT WITH THE MERITS ABOUT THE EXPLANATION GIVEN, THE QU ESTION OF ADDING THE SAID SUM WOULD NOT ARISE FOR CONSIDERATION AT A LL, SINCE THEY HAVE CANCELLED THE ASSESSMENT. THE AO HAS NOT ISSUED AN Y NOTICE EITHER U/S 142(1) OR U/S 148 OF THE ACT, TO ASSUME JURISDI CTION FOR EACH ONE OF THESE ASSESSMENT YEARS TO CONSIDER EACH ONE OF TH E ORDERS AS NORMAL REGULAR ASSESSMENT ORDERS. THEREFORE, IF TH ESE ORDERS ARE CONSIDERED AS REGULAR ASSESSMENTS MADE, THEN, IN AS MUCH AS THE AO HAS NOT ASSUMED JURISDICTION TO MAKE AN ASSESSMENT U/S 143(3) BY ISSUING NOTICES U/S 142(1) OR U/S 148 OF THE ACT. THEREFORE, THE ASSESSMENTS MADE REQUIRE TO BE CANCELLED AS NOT BEI NG IN ACCORDANCE WITH LAW. 11.3 HOWEVER, IN SO FAR AS TAXES ON THE RETURNED I NCOME ARE CONCERNED, IT IS FOR THE DEPARTMENT TO TAKE APPROPR IATE RECOVERY PROCEEDINGS, THOUGH THE BLOCK ASSESSMENT HAS BEEN C ANCELLED BY THE ITAT VIDE COMMON ORDER DATED 31.1.2008 IN THE LIGHT OF THE HONBLE SUPREME COURT DECISION IN THE CASE OF CIT V SHELLY P RODUCTS AND ANOTHER 261 ITR 367. PAGE 6 OF 10 ITA NO.577 TO 579/BANG/2010 6 11.4 IN THE RESULT, THE APPEAL (ITA NO.577/10) FIL ED BY THE ASSESSEE IS ALLOWED. 578/BANG/2010 12. THE BRIEF FACTS OF THE CASE ARE AS FOLLOWS:- THE ASSESSEE WAS ORIGINALLY ASSESSED UNDER THE OR DER OF BLOCK ASSESSMENT DATED 29/11/1999 ON A TOTAL INCOME OF RS.8,88,590/-. IN THE SAID ORDER OF BLOCK ASSESSM ENT, FOR AY 1996- 97, APART FROM INCOME RETURNED, THE AO MADE AN ADDI TION OF RS.2,62,806/- AS UNEXPLAINED INVESTMENT IN FIXED DE POSITS ON PROTECTIVE BASIS IN THE HANDS OF THE ASSESSEE AND S UBSTANTIVE ADDITION MADE IN THE HANDS OF THE FIRM M/S BNB TRADING CO. AGGRIEVED BY THE SAID ORDER OF BLOCK ASSESSMENT, THE ASSESSEE INSTIT UTED APPEAL BEFORE THE COMMISSIONER OF INCOME-TAX (APPEALS), DAVANGERE , WHO BY HIS ORDER IN ITA NO.399/DVG/CIT/99-00 DATED 5/3/2002, P ARTLY ALLOWED THE APPEAL. ON FURTHER APPEAL, THE TRIBUNAL VIDE ITS COMMON ORDER DATED 31/1/2008 IN ITA NO.107/BANG/2002 CANCE LLED THE ASSESSMENT ON THE GROUND OF LIMITATION AND DID NOT ADJUDICATE THE ISSUE ON MERITS. THE RELEVANT FINDINGS OF THE TRIB UNAL AT PARA 34.9 AT PAGE 135 READS AS FOLLOWS:- 34.9 SINCE WE ARE HOLDING THAT THE ASSESSMENT ORDERS ARE BARRED BY LIMITATION AND SUCH ORDERS ARE BEING CANCELLED, THEREFORE, WE ARE NOT ADJUDICATING THE ISSUES ON MERIT. 12.1 THUS, THE TRIBUNAL CANCELLED THE BLOCK ASSESS MENT ORDER PASSED IN THE CASE OF ASSESSEE WITHOUT ADJUDICATING THE ISSUE ON PAGE 7 OF 10 ITA NO.577 TO 579/BANG/2010 7 MERITS. THE AO, WHILE GIVING EFFECT TO THE ITAT OR DER, PASSED ORDER ON 30.12.2008 FOR THE CONCERNED ASST. YEAR MAKING CE RTAIN ADDITIONS. 12.2 AGGRIEVED BY THE ORDER OF THE AO GIVING EFFECT TO THE ITAT ORDER, THE ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A) AND CONTENDED THAT ONCE A BLOCK ASSESSMENT ORDER IN THE CASE OF THE ASSESSEE IS CANCELLED BY THE TRIBUNAL WITHOUT ADJUDI CATING THE ISSUE ON MERITS, THE PROTECTIVE ADDITION MADE IN THE CASE OF THE ASSESSEE GETS AUTOMATICALLY DELETED. IT WAS FURTHER ARGUED THAT THE AO HAS NOT ASSUMED THE JURISDICTION VALIDLY BY ISSUING NOTICE U /S 142(1) OR U/S 148 AND THEREFORE, THE ORDER PASSED BY THE AO IS INVALID , WITHOUT ASSUMPTION OF JURISDICTION. 12.3 THE CIT(A), HOWEVER, DISMISSED THE APPEALS OF THE ASSESSEE BY HOLDING THAT ITAT HAS GIVEN A CLEAR FIND ING WHILE DELETING THE ADDITION IN THE CASE OF THE FIRM, THAT ADDITION IS REQUIRED TO BE MADE IN THE HANDS OF THE ASSESSEE. THEREFORE, THE A.O. HAS VALIDLY ASSUMED THE JURISDICTION WHILE GIVING EFFECT TO THE ORDER OF THE ITAT. 12.4 AGGRIEVED BY THE ORDER PASSED BY THE FIRST APPE LLATE AUTHORITY, THE ASSESSEE HAS PREFERRED THIS APPEAL BE FORE US. 12.5 THE LEARNED COUNSEL FOR THE ASSESSEE REITERAT ED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW. 12.6 ON THE OTHER HAND, THE LEARNED DR SUPPORTED T HE FINDINGS/CONCLUSIONS OF THE CIT(A). PAGE 8 OF 10 ITA NO.577 TO 579/BANG/2010 8 12.7 WE HAVE HEARD THE RIVAL SUBMISSION AND PERUSE D THE MATERIAL ON RECORD. IN VIEW OF OUR REASONING STAT ED IN PARA 11 TO 11.4 IN ITA NO.576/2010, WE HOLD THAT THE AOS ORDER GIV ING EFFECT TO THE ITAT ORDER IS NOT VALID AND SUSTAINABLE IN LAW. 12.8 IN THE RESULT, THE APPEAL (ITA NO.577/10) FIL ED BY THE ASSESSEE IS ALLOWED. 579/BANG/2010 13. THE BRIEF FACTS OF THE CASE ARE AS FOLLOWS:- THE ASSESSEE WAS ORIGINALLY ASSESSED UNDER THE OR DER OF BLOCK ASSESSMENT DATED 29/11/1999 ON A TOTAL INCOME OF RS.8,88,590/-. IN THE SAID ORDER OF BLOCK ASSESSM ENT, FOR AY 1998- 99, APART FROM INCOME RETURNED, THE AO MADE AN ADDI TION OF RS.2,78,043/- AS UNEXPLAINED INVESTMENT IN PURCHASE OF SITE ON PROTECTIVE BASIS IN THE HANDS OF THE ASSESSEE AND S UBSTANTIVE ADDITION MADE IN THE HANDS OF THE FIRM M/S BNB TRADING CO. AGGRIEVED BY THE SAID ORDER OF BLOCK ASSESSMENT, THE ASSESSEE INSTIT UTED APPEAL BEFORE THE COMMISSIONER OF INCOME-TAX (APPEALS), DAVANGERE , WHO BY HIS ORDER IN ITA NO.399/DVG/CIT/99-00 DATED 5/3/2002, P ARTLY ALLOWED THE APPEAL. ON FURTHER APPEAL, THE TRIBUNAL VIDE ITS COMMON ORDER DATED 31/1/2008 IN ITA NO.107/BANG/2002 CANCE LLED THE ASSESSMENT ON THE GROUND OF LIMITATION AND DID NOT ADJUDICATE THE ISSUE ON MERITS. THE RELEVANT FINDINGS OF THE TRIB UNAL AT PARA 34.9 AT PAGE 135 READS AS FOLLOWS:- PAGE 9 OF 10 ITA NO.577 TO 579/BANG/2010 9 34.9 SINCE WE ARE HOLDING THAT THE ASSESSMENT ORDERS ARE BARRED BY LIMITATION AND SUCH ORDERS ARE BEING CANCELLED, THEREFORE, WE ARE NOT ADJUDICATING THE ISSUES ON MERIT. 12.1 THUS, THE TRIBUNAL CANCELLED THE BLOCK ASSESS MENT ORDER PASSED IN THE CASE OF ASSESSEE WITHOUT ADJUDICATING THE ISSUE ON MERITS. THE AO, WHILE GIVING EFFECT TO THE ITAT OR DER, PASSED ORDER ON 30.12.2008 FOR THE CONCERNED ASST. YEAR MAKING CE RTAIN ADDITIONS. 12.2 AGGRIEVED BY THE ORDER OF THE AO GIVING EFFECT TO THE ITAT ORDER, THE ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A) AND CONTENDED THAT ONCE A BLOCK ASSESSMENT ORDER IN THE CASE OF THE ASSESSEE IS CANCELLED BY THE TRIBUNAL WITHOUT ADJUDI CATING THE ISSUE ON MERITS, THE PROTECTIVE ADDITION MADE IN THE CASE OF THE ASSESSEE GETS AUTOMATICALLY DELETED. IT WAS FURTHER ARGUED THAT THE AO HAS NOT ASSUMED THE JURISDICTION VALIDLY BY ISSUING NOTICE U /S 142(1) OR U/S 148 AND THEREFORE, THE ORDER PASSED BY THE AO IS INVALID , WITHOUT ASSUMPTION OF JURISDICTION. 12.3 THE CIT(A), HOWEVER, DISMISSED THE APPEALS OF THE ASSESSEE BY HOLDING THAT ITAT HAS GIVEN A CLEAR FIND ING WHILE DELETING THE ADDITION IN THE CASE OF THE FIRM, THAT ADDITION IS REQUIRED TO BE MADE IN THE HANDS OF THE ASSESSEE. THEREFORE, THE A.O. HAS VALIDLY ASSUMED THE JURISDICTION WHILE GIVING EFFECT TO THE ORDER OF THE ITAT. 12.4 AGGRIEVED BY THE ORDER PASSED BY THE FIRST APPE LLATE AUTHORITY, THE ASSESSEE HAS PREFERRED THIS APPEAL BE FORE US. PAGE 10 OF 10 ITA NO.577 TO 579/BANG/2010 10 12.5 THE LEARNED COUNSEL FOR THE ASSESSEE REITERAT ED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW. 12.6 ON THE OTHER HAND, THE LEARNED DR SUPPORTED T HE FINDINGS/CONCLUSIONS OF THE CIT(A). 12.7 WE HAVE HEARD THE RIVAL SUBMISSION AND PERUSE D THE MATERIAL ON RECORD. IN VIEW OF OUR REASONING STAT ED IN PARA 11 TO 11.4 IN ITA NO.576/2010, WE HOLD THAT THE AOS ORDER GIV ING EFFECT TO THE ITAT ORDER IS NOT VALID AND SUSTAINABLE IN LAW. 12.8 IN THE RESULT, THE APPEAL (ITA NO.579/10) FIL ED BY THE ASSESSEE IS ALLOWED. THE ORDER PRONOUNCED ON FRIDAY, THE 28 TH DAY OF JANUARY, 2011 AT BANGALORE. SD/- SD/- (A MOHAN ALANKAMONY) (GEORGE GEORGE K) ACCOUNTANT MEMBER JUDICIAL MEMBER COPY TO : 1) THE ASSESSEE (2) THE REVENUE (3) THE CIT(A) CONCERNED. (4) THE CIT CONCERNED. (5) THE DR (6) GUARD FILE. MSP/25.1. BY ORDER ASST. REGISTRAR, ITAT, BANGALORE.