Kusum Powermet (P) Ltd., Bhubaneswar V. DCIT, Bhubaneswar

ITA 65/CTK/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3843 (ITAT-CUTTACK)
• Duration Of Justice: 2 year(s) 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 19-04-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 16-02-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K MOHAPATRA
• Keywords: Document seized; Documents seized
• Section: 154; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH , CUTTACK BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND KULDIP SINGH JUDICIAL MEMBER ITA NO. 65/CTK/2015 ASSESSMENT YEAR : 2007 - 08 KUSUM POWERMET (P) LTD., ROOM NO.F - 2, METRO CLASSIC BUILDING, PLOT NO.352, SAHID NAGAR, BHUBANESWAR. VS. DCIT, CIRCLE 1(2), BHUBANESWAR. PAN/GIR NO. AABCK 5799 C (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI SUNIL MISHRA, AR REVENUE BY : SHRI A.K.MOHAPATRA, CIT , DR DATE OF HEARING : 19 /04/ 2017 DATE OF PRONOUNCEMENT : 25 /04/ 2017 O R D E R PER N.S.SAINI, AM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - 1, BHUBANESWAR , DATED 11.11.2014 , FOR THE ASSESSMENT YEAR 2007 - 08 . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THAT, THE LEARNED CIT (A) HAS COMMITTED SERIOUS ERROR IN NOT ALLOWING THE LOSS FOR THE YEAR 2007 - 08 TO BE CARRIED FORWARD ON THE BASIS OF THE RETURN OF INCOME FILED U/S 139(1) OF THE INCOME - TAX ACT, 1961 (HEREINAFTER REFERRED AS 'THE ACT') WHIC H IS LIABLE TO BE ALLOWED AND THE LOSS IS TO BE CARRIED FORWARD TO THE SUBSEQUENT ASSESSMENT YEARS. 2 ITA NO. 65/CTK/2015 ASSESSMENT YEAR :2007 - 08 2. THAT, THE LEARNED CIT (A) HAS COMMITTED SERIOUS ERROR IN HOLDING THAT SEARCH HAS BEEN CONDUCTED IN THE CASE OF THE APPELLANT WHICH IS CONTRARY TO TH E FACTS AND CIRCUMSTANCES OF THE CASE AND FOR WHICH THE ISSUANCE OF NOTICE U/S 153A(A) OF THE ACT IS PER SE ILLEGAL, PRE - MATURE AND WITHOUT JURISDICTION. 3. THAT, THE LEARNED CIT (A) HAS COMMITTED SERIOUS ERROR BY NOT ALLOWING LOSS FOR THE YEAR 2007 - 0 8 AS PER THE RECORD OF THE INCOME - TAX DEPARTMENT TO BE CARRIED FORWARD TO SUBSEQUENT ASSESSMENT YEARS. 4. THAT, THE LEARNED CIT (A) HAS COMMITTED SERIOUS ERROR IN HOLDING THAT THE ASSESSING OFFICER HAS COMMITTED NOTHING WRONG IN REJECTING THE PETITION U/S 154 OF THE ACT IGNORING THE RETURN OF INCOME FILED BY THE APPELLANT U/S 139 (1) OF THE ACT WHICH IS VERY MUCH AVAILABLE WITH THE INCOME TAX DEPARTMENT FOR WHICH THE SAME IS LIABLE TO BE ACCEPTED. 5. THAT, THE LEARNED CIT (A) HAS COMMITTED SERIOUS ERROR IN NOT ALLOWING THE LOSSES FOR THE YEAR 2007 - 08 DISCLOSED IN THE RETURN OF INCOME AT RS.3,97,68,158/ - TO BE CARRIED FORWARD TO SUBSEQUENT ASSESSMENT YEARS AS THE APPELLANT HAS FURNISHED THE RETURN OF INCOME U/S 139(1) OF THE ACT BASED ON THE AUDITED BOOKS OF ACCOUNT WHICH WAS ACCEPTED BY THE LEARNED ASSESSING OFFICER U/S 143(1) OF THE ACT. 3. LD AUTHORISED REPRESENTATIVE OF THE ASSESSEE FILED AN ADJOURNMENT PETITION, WHICH WAS REJECTED BY THE BENCH ON THE GROUND THAT THE REASONS FOR SEEKING ADJOURNM ENT WAS NOT FOUND TO BE A PLAUSIBLE ONE. 3. WE FIND THAT T HE CIT(A) WHILE ADJUDICATING THE ABOVE GROUNDS TAKEN BY THE ASSESSEE HELD AS UNDER: 2. IN THIS CASE, A SEARCH & SEIZURE OPERATION WAS CONDUCTED U/S. 132(1) ON DT.28.5.2008. THE ASSESSING OFFICER (AO) PASSED THE ORDER U/S,153A ON DT.29.12.2010 DETERMINING THE TOTAL INCOME AT NIL. THE AO ALSO STATED THAT THERE IS NO LOSS TO BE CARRIED FORWARD TO THE SUBSEQUENT YEARS. IT APPEARS THAT NO APPEAL HAS BEEN FILED AGAINST THE SAID ORDER U/S,153A DT.29.12.2 010. 2.1' THE APPELLANT MADE A WRITTEN SUBMISSION ON DT.15.7.2014 AND FILED 3 ITA NO. 65/CTK/2015 ASSESSMENT YEAR :2007 - 08 COPY OF THE RETURN FILED U/S. 139(1) DT.23.10.2007. THE SAME WAS SENT TO THE AO FOR COMMENTS UNDER RULE 46A. THE AO'S REMAND REPORT DT.21.10.2014 WAS RECEIVED AN D COPY OF THE SAME WAS GIVEN TO THE APPELLANT. THE APPELLANT'S REJOINDER TO THE REMAND REPORT WAS SUBMITTED ONLL.11.2014. 3. THE APPELLANT FILED PETITION U/S. 154 ON DT.5,6.2013 WHICH WAS REJECTED BY THE AO VIDE HER ORDER DT.7.6.2013 AGAINST WHICH THE IMPU GNED APPEA 1 HAS BEEN FILED. AS MENTIONED BY THE AO, THE APPELLANT RAISED FOLLOWING ISSUES BEFORE HER IN THE PETITION FILED U/S. 154. 'I ) THERE WAS NOT A VALID SEARCH AND NO SEIZED DOCUMENTS IN THE CASE OF THE ASSESSEE AND HENCE THE ASSESSING O FFICER HAS WRONGLY ISSUED NOTICE U/S,153A(A) OF THE I. T. ACT, 1961. II) THE ASSESSING OFFICER IGNORED THE RETURN FILED BY THE ASSESSEE U/S. 139(1) OF THE I. T. ACT WHEREIN A LOSS OF RS.3,97,68,158/ - WAS CLAIMED WHILE COMPLETING THE ASSESSMENT' THE AO FOUND THAT A VALID SEARCH HAS BEEN CONDUCTED IN THE CASE OF THE ASSESSEE ON DT.28.5,2008 AND PANCHANAMA WAS DRAWN AND SUBSEQUENTLY NOTICE U/S.L53A(L)(A) WAS ISSUED FOR FILING OF RETURN. NO RETURN WAS FILED IN RESPONSE TO THE SAID NOTICE U/S,153A(L)(A) AND NO COMPLIANCE HAS ALSO BEEN MADE TO THE NOTICE ISSUED U/S.142(1). IN VIEW OF THE SAME, THE AO CONCLUDED THAT THERE HAS BEEN NO APPARENT MISTAKE FROM RECORDS AS UNDERSTOOD U/S. 154. ACCORDINGLY, THE AO REJECTED THE PETITION FILED BY THE APPELLANT U/S.154. 3.1 I HAVE CONSIDERED THE MATTER. SINCE THE SEARCH WARRANT WAS ISSUED AND A SEARCH & SEIZURE OPERATION HAS TAKEN PLACE, THERE IS NO APPARENT MISTAKE FROM RECORD WHEN THE AO ISSUED NOTICE U/S.L53A(L)(A). FURTHER, NO RETURN OF INCOME HAS BEEN FILED IN RESPONSE TO NOTIC E U/S,153A(L)(A) AND NO COMPLIANCE WAS MADE TO THE NOTICE U/S.142(1) FOR WHICH THE AO DETERMINED THE TOTAL INCOME AT NIL AND SUCH DETERMINATION OF INCOME BY THE AO CANNOT BE CALLED AS APPARENT MISTAKE FROM RECORD. IN VIEW OF THE SAME, THE AO WAS JUSTIFIED IN REJECTING THE PETITION U/S. 154 FILED BEFORE HER. THE INDIVIDUAL GROUNDS OF APPEAL ARE DEALT WITH AS UNDER: GROUND NO.1 : THE APPELLANT SUBMITS THAT THE AO IS NOT CORRECT IN NOT ALLOWING LOSS CLAIMED IN THE RETURN OF INCOME FILED U/S.139(1). HOWEVER, THIS GROUND OF APPEAL CANNOT BE ADJUDICATED SINCE NO APPEAL HAS BEEN FILED AGAINST THE ORDER DT.29.12.2010 U/S.153A IN WHICH THE AO HAS DETERMINED THE TOTAL INCOME AT NIL AND NO LOSS CAN BE CARRIED FORWARD. THE IMPUGNED APPEAL IS AGAINST THE ORDER U/S.154 WHICH HAS BEEN DEALT WITH IN PARA 3.1 OF THIS ORDER. IN THE IMPUGNED APPEAL FILED AGAINST THE ORDER U/S. 154, THE APPELLANT C ANNOT RAISE THE ISSUES WHICH ARE DEALT WITH IN THE ORDER U / S .153A. IN VIEW OF THE SAME, THIS GROUND OF APPEAL IS DISMISSED. 4 ITA NO. 65/CTK/2015 ASSESSMENT YEAR :2007 - 08 GROUND NO.2: THE APPELLANT SUBMITS THAT NO SEARCH HAS BEEN CONDUCTED, HENCE ASSESSMENT U/S.!53A IS ILLEGAL AND LOSS SHOWN IN THE RE TURN FILED U/S. 139(1) IS REQUIRED TO BE CARRIED FORWARD. THESE ISSUES ARISE OUT OF THE ORDER U/S,153A AND THE IMPUGNED APPEAL IS AGAINST THE ORDER U/S, 154 WHICH HAS BEEN DECIDED AT PARA 3.1 OF THIS ORDER. IN VIEW OF THE SAME, THIS GROUND OF APPEAL IS DI SMISSED. GROUND NOS.3, 4 & 5: THE APPELLANT SUBMITS THAT THE AO IS NOT CORRECT IN REJECTING THE PETITION FILED U/S. 154 AND RELYING ON THE DATA OF ROC AND IGNORING THE RETURN FILED U/S. 139(1). THE APPELLANT FURTHER STATES THAT LOSSES DISCLOSED IN THE RETURN OF INC OME FOR RS,3,97,68,158/ - SHOULD BE CARRIED FORWARD. THESE ISSUES ARISE OUT OF THE ORDER U/S.L53A AND THE IMPUGNED APPEAL IS AGAINST THE ORDER U/S. 154 WHICH HAS BEEN DECIDED AT PARA 3.1 OF THIS ORDER. IN VIEW OF THE SAME, THIS GROUND OF APPEAL IS DISMISSED . 4. DURING THE COURSE OF HEARING, IT WAS POINTED OUT TO THE LD A.R. OF THE ASSESSEE THAT THE ISSUES INVOLVED IN THE APPEAL REQUIRES VERIFICATION FACTS AND FIGURES AND ARE HIGHLY DEBATABLE IN NATURE AND THIS BEING AN APPEAL AGAINST AN ORDER UNDER SECTION 154 OF THE A CT, THE SAME CANNOT BE CONSIDERED AND DECIDED. THE HONBLE SUPREME COURT IN THE CASE OF T.S.BALARAM VS VOLKART BROS, (1971) 82 ITR 50 (SC) HAS HELD THAT ONLY MISTAKES APPARENT FROM RECORD CAN BE RECTIFIED UNDER SECTION 154 OF THE ACT. THE A.R . COULD NOT GIVE ANY REPLY. HENCE, THE ORDER OF THE CIT(A) IS CONFIRMED AND THE APPEAL OF THE ASSESSEE IS DISMISSED. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED . ORDER PRO NOUNCED IN THE OPEN COURT ON 25 /04/2017 IN THE PRESENCE OF PARTIES. SD/ - SD/ - (KULDIP SINGH) ( N.S SAINI) JUDICIAL MEMBER A CCOUNTANT MEMBER CUTTACK; DATED 25 /04/2017 B.K.PARIDA, SPS 5 ITA NO. 65/CTK/2015 ASSESSMENT YEAR :2007 - 08 COPY OF THE ORDER FORWARDED TO : BY ORDER, SR.PRIVATE SECRETARY ITAT, CUTTACK 1. THE APPELLANT : KUSUM POWERMET (P) LTD., ROOM NO.F - 2, METRO CLASSIC BUILDING, PLOT NO.352, SAHID NAGAR, BHUBANESWAR 2. THE RESPONDENT. DCIT, CIRCLE 1(2), BHUBANESWAR 3. THE CIT(A) - 1, BHUBANESWAR 4. PR.CIT - 1, BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//