Sri.P. Shyamaraju, Bangalore V. CIT, Bangalore

ITA 613/BANG/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7750 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-06-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 26-05-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: FARAHAT HUSSIAN QURESHI CIT II
• Keywords: Unexplained investment
• Section: 143(3); 153A; 147; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH B BEFORE SMT. P MADHAVI DEVI, JUDICIAL MEMBER AND SHRI JASON P BOAZ, ACCOUNTANT MEMBER ITA NO. 613/BANG/2011 (ASST. YEAR 2004-05) SHRI P SHYAMARAJU, DIVYASREE CHAMBERS, WING-A, # 11, OSHAUGNESSY ROAD, BANGALORE-560 001. . APPELLANT VS. THE DY. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-2(2), BANGALORE. . RESPONDENT APPELLATE BY : SHRI NARENDRA SHARMA, ADVOCATE RESPONDENT BY : SHRI FARAHAT HUSSIAN QURESHI, CIT -II DATE OF HEARING : 04-06-2012 DATE OF PRONOUNCEMENT : 12-06-2012 O R D E R PER P MADHAVI DEVI, JUDICIAL MEMBER : THIS APPEAL IS FILED BY THE ASSESSEE. THE APPEAL I S DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX AT BANGALORE ITA NO./613/B/011 2 DATED 31.3.2011. THE APPEAL ARISES OUT OF THE ORDE R PASSED U/S 263 OF THE INCOME-TAX ACT, 1961. 2. IN THIS APPEAL, THE ASSESSEE IS AGGRIEVED BY THE ORDER OF THE CIT PASSED U/S 263 OF THE INCOME-TAX ACT DIRECTING THE AO TO MAKE FRESH ASSESSMENT ORDER. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2004-05 ON 14.12.200 7 DECLARING A TOTAL INCOME OF RS.25,69,536/-. THE ASSESSMENT U/S 143(3) READ WITH SEC. 153A OF THE INCOME-TAX ACT WAS COMPLETED ON 31 .12.2008. SUBSEQUENTLY THE CIT PERUSED THE RECORD OF THE ASSE SSEE AND OBSERVED THAT EVIDENCES RELATING TO PAYMENTS IN CASH OVER AN D ABOVE THE PAYMENTS MADE BY CHEQUES FOR THE PURPOSE OF ACQUIS ITION OF LAND WAS FOUND AND SEIZED DURING THE COURSE OF SEARCH U./S 1 32 OF THE INCOME- TAX ACT AND THAT THE SAID SEIZED MATERIAL CONTAINED THE SURVEY NOS. OF LANDS, THE DATES OF REGISTRATION AND TOTAL PAYMENTS MADE IN CASH AGAINST EACH DOCUMENTS REGISTERED ETC. HE OBSERVED THAT THE ASSESSING OFFICER WHILE MAKING THE ASSESSMENT HAS N OT CONSIDERED THESE CASH COMPONENTS AS UNEXPLAINED INVESTMENT IN RESPECT OF PURCHASE OF LANDS REGISTERED DURING THE ASSESSMENT YEAR 2004-05. HE, ITA NO./613/B/011 3 THEREFORE, CAME TO THE CONCLUSION THAT THE ORDER OF THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE AND ACCORDINGLY ISSUED A NOTICE U/S 263(1) OF THE INCOME-TAX ACT. THE ASSES SEE FILED ITS REPLY ON 24.11.2010. AFTER CONSIDERING THE ASSESSEES CON TENTION AND NOT ACCEPTING HIS EXPLANATION, THE CIT DIRECTED THE AO TO BRING TO TAX THE CASH COMPONENT OF THE PURCHASE OF LANDS MADE DURING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR 2004-05 FOR TH E LANDS REGISTERED DURING THE YEAR. MEANWHILE, THE ASSESSEE HAD PREFE RRED AN APPEAL AGAINST THE ORDER U/S 143(3) R.W.S 153A OF THE INCO ME-TAX ACT CHALLENGING THE VALIDITY OF THE SEARCH BEFORE THE C IT(A). THE CIT(A) HOWEVER UPHELD THE VALIDITY OF THE SEARCH BUT GRANT ED RELIEF ON MERITS OF THE ADDITIONS. 4. AGGRIEVED BOTH THE REVENUE AS WELL AS THE AS SESSEE PREFERRED APPEALS BEFORE THE ITAT AND B BENCH OF THE TRIB UNAL IN ASSESSEES APPEAL IN ITA NO. 5040 OF 2010 ALLOWED THE ASSESSEE S APPEAL BY HOLDING THAT THE SEARCH WAS NOT VALID AS NO INDIVID UAL WARRANT OF AUTHORIZATION WAS ISSUED AND WARRANT OF AUTHORIZATI ON WAS IN THE JOINT NAMES. FOR COMING TO THIS CONCLUSION THE TRIBUNAL F OLLOWED THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT I N THE CASE OF CIT VS. P.J KUMAR IN ITA NO.6005 TO 6006 OF 2010 DATED 17.9.2010. ITA NO./613/B/011 4 THUS, THE TRIBUNAL ANNULLED THE ASSESSMENT FRAMED B Y THE AO U/S 153A OF THE INCOME-TAX ACT. 5. MEANWHILE THE ASSESSEE HAS PREFERRED THIS APPEA L BEFORE US AGAINST THE ORDER PASSED BY THE CIT U/S 263 OF THE INCOME-TAX ACT. 6. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THE COPY OF THE ORDER OF THE TRIBUNAL IN ITA NO.440 OF 2010 AND SUBMITTED THAT THE ASSESSMENT COMPLETED U/S 143 (3) READ WITH SEC. 153A HAS BEEN ANNULLED BY THE TRIBUNAL AND, THEREFO RE, THE ASSESSMENT WHICH HAS BEEN REVISED BY THE CIT U/S 263 DOES NOT SURVIVE. THEREFORE ACCORDING TO HIM, THE ORDER U/S 263 DOES NOT SURVIVE AND HAS TO BE SET ASIDE. 7. THE LEARNED DR HOWEVER SUPPORTED THE ORDER OF TH E CIT U/S 263 OF THE INCOME-TAX ACT. 8. HAVING HEARD BOTH THE PARTIES AND HAVING CONSIDE RED THE RIVAL CONTENTIONS, WE FIND THAT THOUGH THE CIT HAS MENTIO NED IN HIS ORDER THAT THE ASSESSMENT U/S 143(3) READ WITH SEC. 147 W AS COMPLETED ON 31/12/2008 ASSESSING THE INCOME AT RS.18,98,47,383/ -, IT IS ACTUALLY AN ITA NO./613/B/011 5 ASSESSMENT COMPLETED U/S 143(3) READ WITH SEC. 153A OF THE INCOME- TAX ACT ON 31.12.2008 ASSESSING THE TOTAL INCOME AT RS.18,98,47,383/-. THE ASSESSMENT ORDER WHICH HAS BEEN REVISED BY THE CIT IN THE ASSESSMENT ORDER DATED 31.12.2008 COMPLETED U/S 143 (3) R.W.S 153A HAS BEEN ANNULLED BY THE TRIBUNAL AND, THEREFORE, T HE ORDER U/S 263 HAS NO BASIS. IN VIEW OF THE SAME, WE FIND THAT THE OR DER U/S 263 IS INFRUCTUOUS AND THE APPEAL AGAINST SUCH AN ORDER HA S ALSO BECOME INFRUCTUOUS. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED AS INFRUCTUOUS . ORDER PRONOUNCED IN THE OPEN COURT ON 12TH JUNE , 2012. SD/- SD/- (JASON P BOAZ) (MADHAVI DEVI) ACCOUNTANT MEMBER JUDICIAL MEMBER VMS. BANGALORE DATED : 12/06/2012 COPY TO : 1.THE ASSESSEE 2.THE REVENUE 3.THE CIT CONCERNED. 4.THE CIT(A) CONCERNED. 5.DR 6.GF BY ORDER SENIOR PRIVATE SECRETARY , ITAT, BANGALORE.