Smt. Bina Modi, Kolkata V. CIT, Patna

ITA 59/RAN/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 85436 (ITAT-RANCHI)
• Duration Of Justice: 1 year(s) 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2014
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 01-05-2013
• Court: TRIBUNAL
• Department Lawyers: DEEPAK ROSHAN SR S C LD
• Assessee Lawyers: JITENDRA KAUSHIK LD
• Section: 40A(3); 143(3); 153A; 263

Judgement Text

1 ITA NO.59/RAN/2013 SMT. BINA MODI INCOME TAX APPELLATE TRIBUNAL, CIRCUIT BENCH, RANCHI BEFORE HON'BLE SHRI H.L. KARWA, PRESIDENT , AND HON'BLE SHRI B.R. BASKARAN, ACCOUNTANT M EMBER ITA NO . 59 /RAN/2013 A.Y 200 6 - 07 SMT. BINA MODI, KOLKATA VS. DY. C.I.T, CENTRAL CIRCLE - 2, RANCHI PAN: A EOPM9608L ( APPELLANT ) ( RESPONDENT ) FOR THE APPELLANT : SH RI JITENDRA KAUSHIK, ADVOCATE, LD.AR FOR THE RESPONDENT : SHRI DEEPAK ROSHA N, SR. S.C, LD.DR DATE OF HEARING : 25 - 11 - 2014 DATE OF PRONOUNCEMENT: 25 - 11 - 201 4 ORDER SHRI B.R. BASKARAN, ACCOUNTANT M EMBER : IN THIS APPEAL, THE ASSESSEE IS CHALLENGING THE VALIDITY OF THE REVISION ORDER DATED 18.3.2013 PASSED BY LD CIT (CENTRAL), PATNA U/S 263 OF THE ACT FOR THE ASSESSMENT YEAR 2006 - 07. 2. WE HEARD THE PARTIES AND PERUSED THE RECORD. THE ASSESSMENT FOR THE YEAR UNDER CONSIDERATION WAS COMPLETED BY THE ASSESSING OFFICE R U/S 143(3) OF THE ACT ON 28.6.2007 DETERMINING THE TOTAL INCOME AT RS.9,34,452/ - . IN THE SAID ORDER, THE ASSESSING OFFICER ADDED 2% OF CONSTRUCTION EXPENSES TO COVER UP THE DEFICIENCIES . THE ASSESSEE WAS SUBJECTED TO SEARCH ON 20.03.2009 AND CONSEQUEN T THERETO, THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U/S 153A R.W.S. 143(3) OF THE ACT ON 30.12.2010. IT IS PERTINENT TO NOTE THAT THE AO PROCEEDED TO COMPUTE THE TOTAL INCOME IN 153A PROCEEDING BY ADOPTING THE TOTAL INCOME OF RS.9,34,452/ - DETERMINE D IN THE ORIGINAL ASSESSMENT PROCEEDING. THE AO MADE FURTHER ADDITION OF RS.40,773/ - AND ACCORDINGLY DETERMINED THE TOTAL INCOME AT RS.9,75,225/ - IN 153A PROCEEDING. 2 ITA NO.59/RAN/2013 SMT. BINA MODI 3. THE LD CIT INITIATED REVISION PROCEEDINGS ON TAKING THE VIEW THAT THE ASSESSING OF FICER HAS FAILED TO EXAMINE THE APPLICABILITY OF PROVISIONS OF SEC. 40A(3) OF THE ACT IN 153A PROCEEDING. ACCORDINGLY HE SET ASIDE THE ASSESSMENT ORDER PASSED U/S 153A AND DIRECTED THE AO TO EXAMINE THE APPLICABILITY OF PROVISIONS OF SEC. 40A(3) OF THE AC T. 4. ACCORDING TO LD A.R, THE DETAILS OF CONSTRUCTION EXPENSES HAVE BEEN EXAMINED BY THE AO IN THE ORIGINAL ASSESSMENT PROCEEDINGS AND ACCORDINGLY THE ASSESSING OFFICER HAS MADE ADDITION OF 2% OF THE EXPENSES. HE FURTHER SUBMITTED THAT IN THE 153A PRO CEEDING, THERE WAS NO NECESSITY FOR THE AO TO RECONSIDER THE CONCLUDED MATTERS AND HENCE THE LD CIT WAS NOT JUSTIFIED IN DIRECTING THE AO TO EXAMINE THE APPLICABILITY OF SEC. 40A(3) OF THE ACT. 5. WE ALSO HEARD LD D.R. HOWEVER, WE FIND FORCE IN THE C ONTENTIONS OF THE LD A.R ON TWO GROUNDS. FIRSTLY, THE AO HAS EXAMINED THE CONSTRUCTION EXPENSES IN THE ORIGINAL ASSESSMENT PROCEEDINGS AND HAS MADE DISALLOWANCE OF 2% OF THE EXPENSES. SECONDLY, THE IMPUGNED ASSESSMENT YEAR FALLS IN THE CATEGORY OF CONCLU DED ASSESSMENTS IN SEC. 153A OF THE ACT AND HENCE THE SAME WILL NOT ABATE. IT IS WELL SETTLED PROPOSITION THAT THE ADDITIONS, IF ANY, COULD BE MADE IN THE CONCLUDED ASSESSMENTS ONLY ON THE BASIS OF INCRIMINATING MATERIALS FOUND DURING THE COURSE OF SEARCH . IT IS AN ADMITTED FACT THAT NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH WARRANTING DISALLOWANCE U/S 40A(3) OF THE ACT. UNDER THESE CIRCUMSTANCES, THE AO COULD NOT HAVE INVOKED THE ABOVE SAID PROVISIONS TO EXAMINE A CONCLUDED MATTER. IN THIS VIEW OF THE MATTER, IN OUR VIEW, THE LD CIT CANNOT DIRECT THE ASSESSING OFFICER TO DO SOME THING, WHICH THE AO WAS NOT AUTHORISED TO DO UNDER THE ACT. 3 ITA NO.59/RAN/2013 SMT. BINA MODI 6. IN VIEW OF THE FOREGOING, IN OUR VIEW, THE LD CIT WAS NOT JUSTIFIED IN INITIATING THE I MPUGNED REVISION PROCEEDING. ACCORDINGLY WE SET ASIDE THE IMPUGNED REVISION ORDER. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 25 - 11 - 2014 SD/ - SD/ - [ H.L. KARWA ] [ B.R. BASKARAN ] PRESIDENT ACCOUNTANT MEMBER DATE: 25.11.2014 PLACE : RANCHI PP, SPS COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT : SMT. BINA MODI C/O SRI R.P SHARMA, ADVOCATE, 19 - D, MUKTARAM BABU STREET,KOL - 7 . 2 THE RESPONDENT: D CIT, CENTRAL CIR - 2 , RANCHI, JHARKHAND . 3. .THE CIT, 4.THE CIT(A), 5.DR, ITAT CIRCUIT BENCH, RANCHI 6. GUARD FILE. TRUE COPY, BY ORDER, ASSTT. REGISTRAR 4 ITA NO.59/RAN/2013 SMT. BINA MODI 1. DATE OF DICTATION ............. 25 - 11 - 2014 ....................... 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ........................OTHER MEMBER ....... 26 - 11 - 2014 ........................ 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. ..................... 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT................... 25 - 11 - 14 .................................................................. 5. DAT E ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S ................ 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK ....................................... 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ......................................... 8 . THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER ................................................................................................. 9. DATE OF DESPATCH OF THE ORDER ..................................... .........................