DCIT, New Delhi V. M/s. Sahara India Commercial Corp. Ltd., Kolkata

ITA 6247/DEL/2013

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6334 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-08-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 26-07-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 22-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AJAY VOHRA SR SHRI ADITYA VOHR
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES D : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA.NO.6247/DEL./2013 ASSESSMENT YEAR 2005-2006 THE DCIT, CENTRAL CIRCLE-6, ROOM NO.334, ARA CENTRE, JHANDEWALAN EXTN., NEW DELHI. VS. M/S. SAHARA INDIA COMMERCIAL CORPORATION LTD., 2A, SHAKESPEARE SARANI, KOLKATA 700 071 PAN AADCS6118F (APPELLANT) (RESPONDENT) FOR REVENUE : SHRI J.K. MISHRA, CIT - D.R. FOR ASSESSEE: SHRI AJAY VOHRA, SR. ADVOCATE SHRI ADITYA VOHRA, ADVOCATE & SHRI DIVYESH MITTAL, C.A. DATE OF HEARING : 01 .0 8 .201 9 DATE OF PRONOUNCEMENT : 05 .0 8 .201 9 ORDER PER BHAVNESH SAINI, J.M. THIS APPEAL BY REVENUE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-1, NEW DELHI, DATED 14.09.2013, FOR THE A.Y. 2005-2006, CHALLENGING THE ORDER OF THE LD. CIT(A) IN CANCELLING THE ORDER PASSED BY THE A.O. UNDER SECTION 153C/143(3) OF THE I.T. ACT, 1961. 2 ITA.NO.6247/DEL./2013 SAHARA INDIA COMMERCIAL CORP. LTD., KOLKATA. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT ASSESSEE HAD FILED ITS RETURN OF INCOME ORIGINALLY ON 31.10.2005 SHOWING TOTAL LOSS OF RS.164.76 CRORES WITH DCIT, CIRCLE-8, KOLKATA. THE ASSESSEE COMPANY IS A FLAGSHIP COMPANY OF SAHARA GROUP. SPECIAL AUDIT UNDER SECTION 142(2A) WAS ALSO CONDUCTED AND ACCORDINGLY ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) ON 18.07 2008 AT TOTAL LOSS OF RS.138.58 CRORES BY THE DCIT, CIRCLE-8, KOLKATA. A SEARCH WAS CONDUCTED IN RADHEY GROUP OF CASES IN AHMADABAD WHEREIN SOME DOCUMENTS RELATING TO THE ASSESSEE WERE SEIZED. AS A RESULT PROCEEDINGS UNDER SECTION 153C READ WITH 153A WERE INITIATED AGAINST THE ASSESSEE FOR SEVERAL ASSESSMENT YEARS INCLUDING ASSESSMENT YEAR UNDER APPEAL. THE ASSESSEE FILED RETURN AS WELL AS REPLIES AND THE A.O. COMPLETED THE ASSESSMENT UNDER SECTION 153A/153C/143(3) DATED 29.12.2010 AND COMPLETED THE ASSESSMENT AT LOSS OF RS.138.58 CRORES. THE ASSESSEE CHALLENGED THE ASSESSMENT ORDER DATED 29.12.2010 PASSED BY DCIT, CC-6, NEW DELHI BEFORE LD. CIT(A). THE ASSESSEE RAISED SEVERAL GROUNDS OF 3 ITA.NO.6247/DEL./2013 SAHARA INDIA COMMERCIAL CORP. LTD., KOLKATA. APPEALS WHICH HAVE BEEN DECIDED BY LD. CIT(A) AND APPEAL WAS ALLOWED FOR STATISTICAL PURPOSES. 3. AS REGARDS THE MATTER IN ISSUE, THE LD. CIT(A) NOTED THAT EARLIER ASSESSMENT HAVE BEEN COMPLETED VIDE ORDER DATED 18.07.2008 AT A LOSS OF RS.138.58 CRORES UNDER SECTION 143(3) AND AGAIN SAME INCOME HAVE BEEN ASSESSED UNDER SECTION 153C/153A OF THE I.T. ACT THROUGH IMPUGNED ORDER DATED 29.12.2010, THEREFORE, ASSESSMENT ORDER UNDER APPEAL WAS FOUND TO BE INFRUCTUOUS AND WAS CANCELLED. THE RELEVANT FINDINGS OF THE LD. CIT(A) IN PARA 4.7 OF THE IMPUGNED ORDER ARE REPRODUCED AS UNDER : 4.7. IN THE VIEW I HAVE TAKEN ABOVE, I AM SUPPORTED BY HONBLE DELHI HIGH COURT IN SSP AVIATION LTD V. DCIT [2012] 346 I IR 177 CITED BY LD. AR ABOVE. THE AO HAD THE JURISDICTION TO INITIATE PROCEEDINGS U/S 153C BUT HAVING VERIFIED THE MATERIAL BELONGING TO THE APPELLANT, AND NOT FINDING ANY UNDISCLOSED INCOME ON THAT BASIS, SHOULD HAVE CLOSED THE PROCEEDINGS. THERE CANNOT BE TWO PROCEEDINGS IN RESPECT OF THE SAME ASSESSEE FOR THE SAME ASSESSMENT YEAR IN RESPECT OF THE 4 ITA.NO.6247/DEL./2013 SAHARA INDIA COMMERCIAL CORP. LTD., KOLKATA. SAME MATTERS IN ISSUE. THE PRESENT ASSESSMENT MADE AT THE SAME AMOUNT OF (-) RS. 138,58,88,634/-, AS WAS ASSESSED U/S 143(3)/142(2A) EARLIER VIDE ORDER DATED 18.07.2008, SHOULD NOT HAVE BEEN MADE IN VIEW OF THE EARLIER ORDER AND THE PROCEEDINGS U/S 153C/153A SHOULD HAVE BEEN DROPPED BY THE AO AFTER VERIFICATION OF THE SEIZED MATERIAL. I HOLD ACCORDINGLY. THE PRESENT ORDER U/S 153C/153A/143(3) IS INFRUCTUOUS AND IS CANCELLED. 4. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOTH THE PARTIES. LEARNED COUNSEL FOR THE ASSESSEE AT THE OUTSET SUBMITTED THAT SINCE THE ORIGINAL ASSESSMENT ORDER UNDER SECTION 143(3) DATED 18.07.2008 IS IN DIFFERENT APPEALS AND SAME IN LOSS HAVE BEEN ASSESSED IN THE IMPUGNED ORDER ALSO, THEREFORE, LD. CIT(A) CORRECTLY CANCELLED THE IMPUGNED ASSESSMENT ORDER. LD. D.R. HOWEVER RELIED UPON THE ORDER OF THE A.O. 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE ARE OF THE VIEW THAT THE LD. CIT(A) CORRECTLY CANCELLED THE ASSESSMENT ORDER DATED 29.12.2010 UNDER SECTION 5 ITA.NO.6247/DEL./2013 SAHARA INDIA COMMERCIAL CORP. LTD., KOLKATA. 153A/153C/143(3) OF THE I.T. ACT. SINCE IN THIS CASE SIMILAR LOSS HAVE BEEN ASSESSED UNDER SECTION 143(3) ORIGINALLY VIDE ORDER DATED 18.07.2009, THEREFORE, THE PRESENT PROCEEDINGS UNDER SECTION 153C/143A SHOULD HAVE BEEN DROPPED BY THE A.O, AFTER VERIFICATION OF THE SEIZED MATERIAL. THERE WERE NO JUSTIFICATION TO ASSESS THE SAME LOSS IN PARALLEL PROCEEDINGS. THE LD. CIT(A), THEREFORE, CORRECTLY CANCELLED THE ASSESSMENT ORDER. WE, ACCORDINGLY, CONFIRM THE ORDER OF THE LD. CIT(A) AND DISMISS THE DEPARTMENTAL APPEAL. 6. IN THE RESULT, APPEAL OF THE DEPARTMENT DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (R.K. PANDA) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DELHI, DATED 05 TH AUGUST, 2019 VBP/- COPY TO 1. THE APP ELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT D BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASSISTANT REGISTRAR : ITAT DELHI BENCHES : DELHI.