ACIT, Central Circle,1(1), Pune V. Mr Mukund Krishnaji Purandare, Pune

ITA 608/PUN/2003

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9941 (ITAT-PUNE)
• Duration Of Justice: 9 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 21-05-2003
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K SINGH
• Keywords: Search and seizure; Document seized; Block assessment; Tax effect; Documents seized

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO. 608/PN/03 (BLOCK PERIOD : 1/4/89 TO 8 /12/99) ASST. CIT, CENT.CIR 1(1), PUNE APPELLANT V. MR.MUKUND KRISHNAJI PURANDARE RESPONDENT A-7 SNEHSHILP SOCIETY, SHRIPATI SUTAR PATH, PAUD ROAD, KOTHRUD, PUNE 38 PAN : ABFPP 7089 N C.O. NO.9/PN/04 (ARISING OUT OF ITA NO. 608/PN/03 ) (BLOCK PERIOD : 1/4/89 TO 8/12/99) MR.MUKUND KRISHNAJI PURANDARE CROSS OBJECTOR A-7 SNEHSHILP SOCIETY, SHRIPATI SUTAR PATH, PAUD ROAD, KOTHRUD, PUNE 38 PAN : ABFPP 7089 N V. ASST. CIT, CENT.CIR 1(1), PUNE . RESPONDENT ASSESSEE BY : SHRI S UNIL GANOO DEPARTMENT BY : SHRI S.K . SINGH DATE OF HEARING : 18/9/12 DATE OF PRONOUNCEMENT : - 9-12 O R D E R PER R.S. PADVEKAR, JM THE REVENUE HAS FILED THE APPEAL CHALLENGING THE IMPUGNED ORDER OF THE LD CIT(A) I, PUNE DATED 7.3.2003 FOR THE BL OCK PERIOD FROM 01.4.1989 TO 08.12.1999. THERE WAS A SEARCH ACTION AGAINST THE ASSESSEE U/S. 132(1) OF THE ACT ON 8.12.1999. IN C ONSEQUENCE OF THE SEARCH AND SEIZURE ACTION, THE ASSESSMENT OF THE AS SESSEE WAS COMPLETED U/S. 158BC(C) OF THE I.T. ACT , DETERMINING TOTAL UNDISCLOSED INCOME AT RS. 5,76,440/-. THE A.O. CALCULATED THE TAX BY TAK ING THE RATE AT 60% WITH SURCHARGE AT 10%, WHICH IS WORKED OUT AT RS. 3 ,80,450/-. THE 2 ITA NO. 608/PN/03 & C.O.9/PN/04 MR. MUKUND K. PURANDARE, (BLOCK PERIOD 1-4-89 TO 8-12-99) ASSESSEE HAD DECLARED UNDISCLOSED INCOME TO THE EX TENT OF RS.1,53,853/- IN RETURN FILED FOR THE BLOCK PERIOD AND BALANCE A DDITION WAS MADE BY THE A.O. THE ASSESSEE CHALLENGED THE BLOCK ASSESSMENT BEFORE THE LD CIT(A). THE LD CIT(A) DELETED THE ADDITION WHICH WA S MADE BY THE A.O. TOWARDS UNEXPLAINED CASH. NOW, REVENUE IS IN APPEA L BEFORE US. 2. WE HAVE HEARD THE PARTIES. THE LD COUNSEL TOOK THE PRELIMINARY OBJECTION THAT THE APPEAL FILED BY THE REVENUE IS N OT MAINTAINABLE AS THE TAX EFFECT I.E. TAX AS WELL AS SURCHARGE, IN RESPEC T OF THE ISSUE ARISING FROM THE REVENUES APPEAL IS LESS THAN RS. 3,00,000/-. HE SUBMITS THAT IN VIEW OF THE CIRCULAR NO. 3 OF THE CBDT DATED 9.2.2011, T HE MONETARY LIMIT FOR FILING THE APPEAL FIXED BY THE CBDT IS APPLICABLE E VEN FOR APPEALS PENDING FOR ADMISSION OR FOR FINAL DISPOSAL. THE LD COUNS EL RELIED ON THE DECISION OF THE HONBLE HIGH COURT OF BOMBAY IN THE CASE OF CIT VS. PITHWA ENGINEERING 276 ITR 519 AND MADHUKAR K. INAMDAR 318 ITR 149 (BOM). THE LD D.R. WAS FAIR ENOUGH TO ADMIT THAT THE TOTAL TAX EFFECT IN THIS CASE IS LESS THAN RS. 3,00,000/-. WE, THEREFORE, RESPEC TFULLY FOLLOWING THE DECISIONS OF THE HONBLE JURISDICTIONAL HIGH COURT , CITED SUPRA, DISMISS THE APPEAL FILED BY THE REVENUE AS NOT MAINTAINABLE. 3. NOW WE TAKE UP THE CROSS OBJECTION FILED BY TH E ASSESSEE. THE ASSESSEE HAS FILED THE FOLLOWING CONCISE GROUNDS IN THE APPEAL : 1. THE RESPONDENT ASSESSEE DENIES HIS LIABILITY TO PAY SUR-CHARGE. THE LEARNED C.I.T.(A) HAS GROSSLY ERRED IN CONFIRMING T HE LEVY OF SUR-CHARGE AS LEVIED BY THE LEARNED ASSESSING OFFICER. IT MAY PL EASE BE HELD THAT THE RESPONDENT ASSESSEE IS NOT LIABLE TO PAY ANY SUR-CH ARGE. 2. THE RESPONDENT ASSESSEE DENIES HIS LIABILITY TO PAY ANY INTEREST U/S 158 BFA (1) OF THE I.T. ACT 1961. THE LEARNED C.I.T.[A] ERRED IN DIRECTING THE LEARNED ASSESSING OFFICER TO CHARGE THE SAID INTEREST. THE AFORESAID DIRECTION OF THE LEARNED C .I.T.[A] BEING PATENTLY ILLEGAL AND WITHOUT AUTHORITY OF LAW THE S AME DESERVES TO BE VACATED. 4. WE HAVE HEARD THE PARTIES . THE ONLY GRIEVANCE OF THE ASSESSEE IS THAT THE INTEREST CHARGED BY THE A.O U/S. 158BFA (1 ) IS ILLEGAL AS ASSESSEE FILED THE RETURN OF INCOME WITHIN 45 DAYS AS PER THE GRACE PERIOD GIVEN BY THE A.O. THE LD COUNSEL SUBMITS THAT THE A.O. HAS FIXED THE TIME LIMIT OF 30 DAYS FOR THE NOTICE ISSUED TO THE ASSESSEE, BUT AS PER 3 ITA NO. 608/PN/03 & C.O.9/PN/04 MR. MUKUND K. PURANDARE, (BLOCK PERIOD 1-4-89 TO 8-12-99) LAW, THE ASSESSEE HAD TIME LIMIT UPTO 45 DAYS. HE P LEADED THAT PRESUMING THERE IS A SMALL DELAY, AND THAT WAS NOT ATTRIBUTABLE TO THE ASSESSEE AS ASSESSEE WAS NOT FURNISHED WITH THE COP IES IN RESPECT OF THE SEIZED DOCUMENTS FOR PREPARING THE RETURN FOR THE B LOCK PERIOD. HENCE, AT LEAST TO THE EXTENT OF THE PERIOD I.E. BETWEEN THE DATE OF THE APPLICATION FOR GETTING THE COPIES TILL THE DATE OF FURNISHING THE COPIES OF THE SEIZED DOCUMENTS TO THE ASSESSEE, THE PERIOD IS TO BE EXCL UDED FOR COMPUTING THE PERIOD OF 30 DAYS. THE LD COUNSEL RELIED ON T HE DECISION OF HONBLE HIGH COURT OF DELHI IN THE CASE OF CIT VS. MESCO AI RLINES LTD., 327 ITR 554 (DEL.). HE SUBMITS THAT HE HAS NO OBJECTION EVEN I F THE ISSUE OF LEVY OF INTEREST IS RESTORED TO THE FILE OF THE A.O FOR RE CONSIDERATION IN THE LIGHT OF THE PRINCIPLES LAID DOWN IN THE CASE OF MESCO AIRLI NES LTD.(SUPRA). THE LD. D.R. HAS NO OBJECTION. WE, ACCORDINGLY, RESTORE TH E ISSUE OF LEVY OF INTEREST U/S. 158BFA(1) TO THE FILE OF THE A.O. FOR FRESH CONSIDERATION. ACCORDINGLY, GROUND NO. 2 IS ALLOWED FOR STATISTICA L PURPOSES. 5. SO FAR AS GROUND NO. 1 IS CONCERNED, THE LD COUN SEL FAIRLY CONCEDED SAME AS AGAINST THE ASSESSEE BY THE DECISION OF HO NBLE SUPREME COURT IN THE CASE OF SURESH N. GUPTA, 297 ITR 322. AS GR OUND NO. 1 IS COVERED AGAINST THE ASSESSEE BY THE DECISION OF HONBLE S UPREME COURT (SUPRA), SAME IS DISMISSED. THE ASSESSEE HAS FILED APPLICAT ION FOR ADMISSION OF THE ADDITIONAL GROUNDS BUT AS THE APPEAL OF THE REV ENUE IS DISMISSED, THE LD COUNSEL DID NOT PRESS SAME. 6. IN THE RESULT, REVENUES APPEAL IS DISMISSED AND ASSESSEES CROSS OBJECTION IS PARTLY ALLOWED FOR STATISTICAL PURPOSE S. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 28 TH SEPTEMBER 2012. SD/- SD/- (G.S. PANNU) ACCOUNTANT MEMBER (R.S.PADVEKAR ) JUDICIAL MEMBER PUNE, DATED THE 28TH SEPTEMBER, 2012 US COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-I,PUNE 4. THE CIT(A)-I, PUNE 4 ITA NO. 608/PN/03 & C.O.9/PN/04 MR. MUKUND K. PURANDARE, (BLOCK PERIOD 1-4-89 TO 8-12-99) 5. THE D.R. B BENCH, PUNE 6. GUARD FILE /- TRUE COPY-/ BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE