Appeal Details
Counselvise Citation
[2017] 128 COUNSELVISE.COM (IT) 3277 (ITAT-DELHI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 year(s) 4 month(s) 10 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
28-04-2017
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
D
Next Hearing Date
17-04-2017
Assessment Year
2004-2005
Appeal Filed On
18-12-2013
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : D : NEW DELHI BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND MS SUCHITRA KAMBLE, JUDICIAL MEMBER ITA NO.6759/DEL/2013 ASSESSMENT YEAR : 2004-05 ACIT, CENTRAL CIRCLE-13, NEW DELHI. VS. K.G. FINVEST PVT. LTD., 10, 3 RD FLOOR, SATYA NIKETAN, NEW DELHI. PAN: AAACK4032H ITA NO.6662/DEL/2013 ASSESSMENT YEAR : 2004-05 K.G. FINVEST PVT. LTD., 10, 3 RD FLOOR, SATYA NIKETAN, NEW DELHI. PAN: AAACK4032H VS. ACIT, CENTRAL CIRCLE-13, NEW DELHI. ASSESSEE BY : SHRI SALIL KAPOOR, SHRI SUMIT LALCHANDANI & MS ANANYA KAPOOR, ADVOCATES DEPTT. BY : SHRI NAVEEN CHANDRA, CIT, DR DATE OF HEARING : 25.04.2017 DATE OF PRONOUNCEMENT : 28.04.2017 ITA NOS.6759 & 6662/DEL/2013 2 ORDER PER R.S. SYAL, VP. THESE TWO CROSS APPEALS - ONE BY THE ASSESSEE AND THE OTHER BY THE REVENUE - ARISE OUT OF THE ORDER PASSED BY THE CIT( A) ON 14.10.2013 IN RELATION TO THE A.Y. 2004-05. 2. SUCCINCTLY, THE FACTS, AS RECORDED IN THE ASSESS MENT ORDER, ARE THAT A SEARCH AND SEIZURE ACTION U/S 132 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER ALSO CALLED `THE ACT) WAS C ARRIED OUT IN THE SWASTIK PIPES GROUP OF CASES ON 28.08.2008. NO TICE U/S 153A WAS ISSUED ON 25.08.2010 AND SERVED ON THE ASS ESSEE. IN RESPONSE TO THE SAME, THE ASSESSEE SUBMITTED VIDE I TS LETTER DATED 7.10.2010 THAT THE RETURN FILED U/S 139 OF TH E ACT MAY BE TREATED AS ITS RETURN OF INCOME IN RESPONSE TO NOTI CE U/S 153A. NOTICE U/S 142 WAS ISSUED AND EVENTUALLY, THE ASSES SMENT WAS COMPLETED ON TOTAL INCOME OF RS.33,43,390/- AS AGAI NST THE RETURNED INCOME OF RS.13,390/-, THEREBY MAKING AN A DDITION OF RS.33,30,000/- ON ACCOUNT OF UNPROVED SHARE APPLICA TION ITA NOS.6759 & 6662/DEL/2013 3 MONEY RECEIVED FROM VARIOUS PERSONS. THE ASSESSEE C HALLENGED INITIATION OF PROCEEDINGS U/S 153A BEFORE THE LD. C IT(A), PRIMARILY, CONTENDING THAT NO WARRANT OF SEARCH WAS EXECUTED ON THE ASSESSEE COMPANY. THE LD. CIT(A) DISMISSED SUCH CONTENTION. THEREAFTER, HE DEALT WITH THE ADDITION MADE U/S 68 OF THE ACT ON MERITS. OUT OF TOTAL ADDITION OF RS.3 3,30,000/- MADE BY THE ASSESSING OFFICER, THE LD. CIT(A) DELET ED THE ADDITION TO THE TUNE OF RS.30,80,000/- AND SUSTAINE D THE REMAINING ADDITION OF RS.2,50,000/-. BOTH THE SIDES ARE IN APPEAL ON THEIR RESPECTIVE STAND POINTS. THE ASSESS EE, IN ITS APPEAL, HAS, INTER ALIA, CHALLENGED THE INITIATION OF PROCEEDINGS U/S 153A OF THE ACT. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. BEFORE EMBARKING UPON THE EXAMINATION OF THE CONTENTION RAISED ON BEHALF OF T HE ASSESSEE AGAINST THE INVALID INITIATION OF PROCEEDINGS U/S 1 53A OF THE ITA NOS.6759 & 6662/DEL/2013 4 ACT, IT IS BEFITTING TO NOTE DOWN THE RELEVANT PART S OF SECTION 153A, WHICH RUN AS UNDER:- 153A. (1) NOTWITHSTANDING ANYTHING CONTAINED IN SE CTION 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECT ION 153, IN THE CASE OF A PERSON WHERE A SEARCH IS INITIATED UNDER SECTI ON 132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS ARE REQUISIT IONED UNDER SECTION 132A AFTER THE 31ST DAY OF MAY, 2003, THE ASSESSING OFFICER SHALL (A) ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO F URNISH WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, THE RETU RN OF INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE (B), IN THE PRESCRIBED FORM A ND VERIFIED IN THE PRESCRIBED MANNER AND SETTING FORTH SUCH OTHER PART ICULARS AS MAY BE PRESCRIBED AND THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APPLY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRE D TO BE FURNISHED UNDER SECTION 139; (B) ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSESSME NT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE : PROVIDED THAT 4. SUB-SECTION (1) OF SECTION 153A PROVIDES THAT: IN CASE OF A PERSON WHERE A SEARCH IS INITIATED U/S 132 OR BOO KS OF ACCOUNT.. ARE REQUISITIONED U/S 132A, THE ASSES SING OFFICER SHALL ISSUE A NOTICE UNDER THIS SECTION REQ UIRING SUCH PERSON TO FURNISH RETURN OF INCOME IN RESPECT OF EA CH OF THE ASSESSMENT YEARS FALLING WITHIN THE SIX ASSESSMENT YEARS. IT IS, ITA NOS.6759 & 6662/DEL/2013 5 THEREAFTER, THAT THE ASSESSING OFFICER HAS TO COMPL ETE THE ASSESSMENT OF SUCH SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVI OUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS M ADE. ON GOING THROUGH THE PLAIN LANGUAGE OF SUB-SECTION (1) OF SECTION 153A, IT IS OVERT THAT NOTICE UNDER THIS PROVISION CAN BE ISSUED ON A PERSON ON WHOM SEARCH IS INITIATED U/S 132 OR REQUISITION IS MADE U/S 132A. IT IS NOT THE CASE OF THE REVENU E THAT BOOKS OF ACCOUNT OR ANY OTHER DOCUMENTS OR ASSETS WERE RE QUISITIONED U/S 132A QUA THE ASSESSEE. THUS, WE ARE CONFINED TO THE FORMER PART OF SUB-SECTION (1), WHICH MANDATES THAT NOTICE U/S 153A CAN BE ISSUED ON A PERSON WHERE A SEARCH IS I NITIATED U/S 132 OF THE ACT. THIS SHOWS THAT INITIATION OF SEA RCH U/S 132 IS A PRE-REQUISITE FOR ISSUING NOTICE U/S 153A, THOUGH ASSESSMENT HAS TO BE MADE OF THE TOTAL INCOME OF SIX ASSESSMEN T YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS `CONDUCTED. IN OTHER WORDS, UNLESS A SEARCHED IS INITIATED ON A PERSON U /S 132, THE ITA NOS.6759 & 6662/DEL/2013 6 ASSESSING OFFICER CANNOT ACQUIRE JURISDICTION FOR I SSUING NOTICE U/S 153A OF THE ACT. THE CASE OF THE ASSESSEE BEFO RE US IS THAT NO SEARCH WAS INITIATED ON IT AND HENCE NOTICE U/S 153A OF THE ACT IS BAD IN LAW. 5. LET US EXAMINE IF THE SEARCH WAS INITIATED ON THE ASSESSEE U/S 132 OF THE ACT. THE ASSESSING OFFICER HAS UNEQ UIVOCALLY RECORDED THAT THE SEARCH AND SEIZURE ACTION WAS TAK EN U/S 132 IN THE SWASTIK PIPES GROUP OF CASES ON 28.8.2008 AN D THE CASE OF THE ASSESSEE WAS CENTRALISED BY THE CIT AND, THE REAFTER, NOTICE U/S 153A WAS ISSUED AND SERVED ON THE ASSESS EE. THE ASSESSEE HAS CHALLENGED THE VERY FACT OF INITIATION OF ANY SEARCH ON IT. IT IS NOT ONLY THAT THE ASSESSEE CHA LLENGED VALIDITY OF ISSUANCE OF NOTICE U/S 153A BEFORE THE LD. CIT(A) AND THE TRIBUNAL, BUT, THIS ISSUE WAS STRONGLY PITC HED BEFORE THE ASSESSING OFFICER AS WELL, CONTENDING THAT NO S EARCH TOOK PLACE ON IT. THIS CLEARLY EMERGES FROM THE FACTS TH AT THE ASSESSING OFFICER ISSUED NOTICE DATED 25.08.2010 U/ S 153A, ITA NOS.6759 & 6662/DEL/2013 7 WHOSE COPY IS AVAILABLE ON PAGE 49 OF THE PAPER BOO K. SUCH NOTICE WAS ADDRESSED TO THE PRINCIPAL OFFICER OF M /S K.G. FINVEST & TRADE PVT. LTD. WITH PAN AAACK4032H. TH E ASSESSEE OBJECTED TO SUCH NOTICE AND SHOT A LETTER DATED 14.09.2010 TO THE ASSESSING OFFICER CONTENDING THAT NO SEARCH WAS INITIATED U/S 132 ON IT AND, HENCE, THE NOTICE ISSUED U/S 153A BE WITHDRAWN. THE ASSESSING OFFICER REPLIED V IDE HIS LETTER DATED 17.9.2010, A COPY OF WHICH HAS BEEN PL ACED ON PAGE 51 OF THE PAPER BOOK. THIS LETTER OF THE ASSE SSING OFFICER WAS AGAIN ADDRESSED TO THE PRINCIPAL OFFICER OF M/ S K.G. FINVEST & TRADE PVT. LTD. WITH PAN AAACK4032H. THR OUGH THIS LETTER, THE ASSESSING OFFICER CONVEYED THAT TH E ASSUMPTION OF JURISDICTION U/S 153A OF THE ACT WAS VALID. TO JUSTIFY HIS POINT, THE AO ANNEXED A COPY OF FORM NO. 45, BEING THE WARRANT OF AUTHORISATION U/S 132 OF THE ACT ISSUED BY THE DIRECTOR OF INCOME-TAX, WHICH IS AVAILABLE ON PAGE 52-53 OF THE PAPER BOOK. IT CAN BE SEEN THAT SUCH WARRANT O F AUTHORIZATION WAS ISSUED IN THE NAME OF `M/S NORTHE RN STRIPS ITA NOS.6759 & 6662/DEL/2013 8 LTD., M/S SUPER PLASTIC COATS PVT. LTD. & OTHERS AS PER ANNEXURE. THE SAID ANNEXURE CONTAINS NAMES OF SIX PARTIES INCLUDING K.G. FINVEST AND TRADE LTD. THE ADDRESS GIVEN ON THE WARRANT OF AUTHORIZATION IS 1-2, CENTRAL MARKET , WEST AVENUE ROAD, PUNJABI BAGH, NEW DELHI. THE ASSESSEE RETURNED ITS REPLY DATED 24.9.2010 TO THE ASSESSING OFFICER, WHOSE COPY IS AVAILABLE ON PAGE 54 OF THE PAPER BOO K, CONTENDING THAT THE WARRANT CONTAINS THE NAME OF K .G. FINVEST & TRADE LTD., AS AGAINST THE ITS NAME OF K.G. FIN VEST PVT. LTD. IT WAS ALSO ASSERTED THAT NONE OF ITS DIRECTO RS HAD ANY DIRECTORSHIP IN THE TWO COMPANIES MENTIONED IN FORM NO.45 OR ANY OF THE OTHER FIVE COMPANIES ENUMERATED IN THE A NNEXURE. THE ASSESSING OFFICER REPLIED VIDE HIS LETTER DATED 30.09.2010 THAT THE PERMANENT ACCOUNT NUMBER REFERRED TO IN TH E REPORT OF ADIT (INV.), NEW DELHI PERTAINED TO THE ASSESSEE CO MPANY AND, HENCE: THE INTENDED SEARCH IS ON M/S K.G. FIN VEST PVT. LTD. THE ASSESSEE WAS DIRECTED TO FILE RETURN OF I NCOME U/S 153A. PURSUANT TO SUCH LETTER, THE ASSESSEE FILED A RETURN AND ITA NOS.6759 & 6662/DEL/2013 9 THE ASSESSMENT WAS FINALIZED. THE ABOVE CORRESPONDE NCE BETWEEN THE ASSESSEE AND THE AO TOOK PLACE BEFORE T HE COMPLETION OF ASSESSMENT ON 28.12.2010. FROM THE AB OVE CORRESPONDENCE, IT BECOMES PALPABLE THAT THE WARRAN T OF AUTHORIZATION INCLUDED THE NAME OF `K.G. FINVEST AN D TRADE LTD., WHEREAS THE ASSESSEES NAME IS `K.G. FINVEST PVT. LTD.; THE ADDRESS GIVEN ON THE WARRANT OF AUTHORIZATION I S 1-2, CENTRAL MARKET, WEST AVENUE ROAD, PUNJABI BAGH, NEW DELHI, AS AGAINST THE ASSESSEES ADDRESS OF 10, 3 RD FLOOR, SATYA NIKETAN, NEW DELHI; AND THE ASSESSEE CATEGORICALLY SUBMITTED BEFORE THE ASSESSING OFFICER THAT NONE OF ITS DIREC TORS HAD ANY DIRECTORSHIP IN THE COMPANIES NAMED IN THE WARRANT OF AUTHORIZATION AND ITS ANNEXURE, WHICH WAS NOT CONTR OVERTED BY THE ASSESSING OFFICER IN HIS LATER LETTER. THESE FA CTS HAVE ALSO NOT BEEN DISPUTED BY THE LD. DR. WHEN THE LAPSES, A S HIGHLIGHTED BY THE ASSESSEE, BECAME KNOWN TO THE AO , HE COINED A NEW CONCEPT OF `INTENDED SEARCH ON THE AS SESSEE, WHICH IS UNKNOWN TO THE LAW. THERE IS EITHER A SEAR CH OR NO ITA NOS.6759 & 6662/DEL/2013 10 SEARCH ON A PERSON. NOT BEING SEARCHED, A PERSON CA NNOT SUFFER THE CONSEQUENCES OF AN `INTENDED SEARCH, WHICH IS NOT INITIATED. 6. AT THIS STAGE, THE LD. DR PLEADED THAT THERE I S NO NEED TO ESTABLISH THAT ANY SEARCH WAS ACTUALLY CONDUCTED ON THE ASSESSEE BECAUSE SECTION 153A USES THE WORD `INITIA TION OF SEARCH. POINTING OUT A DISTINCTION BETWEEN THE INIT IATION AND ACTUAL CONDUCT OF THE SEARCH, THE LD. DR RELIED ON THE ORDER PASSED BY THE JODHPUR BENCH IN SURAJ PRASAD SONI VS. ACIT (2007) 106 ITD 321 (JODHPUR), IN WHICH THE MEANING OF THE WORD `INITIATION OF SEARCH HAS BEEN DEALT WITH. WE FULLY AGREE WITH THE LD. DR THAT, FIRSTLY, WHAT IS SIGNIFICANT FOR THE ISSUE OF NOTICE U/S 153A OF THE ACT IS THE INITIATION OF SEA RCH AND SECONDLY, THERE IS A MARKED DISTINCTION BETWEEN `IN ITIATION AND `COMMENCEMENT OF SEARCH. IN COMMON PARLANCE, INI TIATION MEANS THE BEGINNING OF A PROCESS OR, IN OTHER WORDS , A FIRST STEP IN THE ENTIRE PROCESS. SEARCH COMMENCES WITH THE ISSUE OF ITA NOS.6759 & 6662/DEL/2013 11 AUTHORIZATION BY THE COMPETENT AUTHORITY. THUS, TH E INITIATION OF SEARCH COMMENCES WITH THE ISSUE OF AUTHORIZATION BY THE DIT. EXECUTION OF SEARCH WA RRANT, WHICH IS A STEP AFTER THE INITIATION OF SEARCH, TAK ES PLACE LATER ON, WHICH LEADS TO THE ACTUAL CONDUCT OF THE SEARC H AT THE PREMISES OF THE PERSON SEARCHED. GOING BY THE CONTE NTION OF THE LD. DR, SEEN IN THE CONTEXT OF SECTION 153A, TH ERE REMAINS NO DOUBT THAT NOTICE U/S 153A CAN BE ISSUED WHERE A SEARCH IS INITIATED U/S 132 OR, IN OTHER WORDS, A WARRANT OF AUTHORIZATION IS ISSUED. PER CONTRA, IN THE ABSENCE OF A WARRANT OF AUTHORIZATION ON THE ASSESSEE, NO NOTICE U/S 153A C AN FOLLOW. WE HAVE GONE THROUGH THE COPY OF WARRANT OF AUTHORI ZATION IN THIS CASE, FROM WHICH IT IS APPARENT THAT NEITHER T HE ASSESSEE IS NAMED THEREIN NOR ITS ADDRESS IS GIVEN IN IT. EVEN, THERE IS NO MENTION OF ANY PERMANENT ACCOUNT NUMBER OF THE ASSE SSEE IN THAT. ITA NOS.6759 & 6662/DEL/2013 12 7. THE LD. DR SUBMITTED THAT SOME INADVERTENT TYP OGRAPHICAL ERROR MUST HAVE CREPT IN THE WARRANT OF AUTHORIZATI ON BY WHICH THE NAME OF THE ASSESSEE, NAMELY, `K.G. FINVEST PVT . LTD., CAME TO BE WRONGLY WRITTEN AS K.G. FINVEST & TRADE LTD. TO BUTTRESS THIS POINT, HE REFERRED TO A COPY OF CHAPT ER-7 OF THE APPRAISAL REPORT, WHICH IS AVAILABLE ON PAGE 4 OF T HE DPB. NAME GIVEN AT SERIAL NO. 17 OF THIS LIST IS `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`INITIATED NOR `CONDUCTED ON THE ASSESSEE. 9. THE LD. DR ARGUED THAT THE ASSESSEE SUBJECTED ITSELF TO THE JURISDICTION OF THE AO IN AS MUCH AS IT FILED THE R ETURN OF INCOME IN RESPONSE TO NOTICE U/S 153A AND ALSO PART ICIPATED IN THE COMPLETION OF ASSESSMENT. IN VIEW OF SUCH SUBMI SSION TO THE JURISDICTION OF THE AO, THE LD. DR FERVENTLY AR GUED THAT THE INITIATION OF SEARCH CANNOT BE FAULTED WITH. TO SUP PORT THIS CONTENTION, HE RELIED ON A RECENT JUDGMENT OF THE H ONBLE SUPREME COURT IN GUNJAN GIRISHBHAI MEHTA VS. D.I. (2017) 80 TAXMANN.COM 23(SC). 10. BEFORE CONSIDERING THE RATIO DECIDENDI OF THE VERDICT OF THE HONBLE SUPREME COURT, LET US FIND OUT THE ELAB ORATE FACTS OF THIS CASE FROM THE APPEALED AGAINST JUDGMENT OF THE HONBLE GUJARAT HIGH COURT IN GUNJAN GIRISHBHAI MEHTA AND ORS. VS. DIRECTOR OF INVESTIGATION (2014) 49 TAXMANN.COM 69 (GUJARAT) . IN THAT CASE, ONE LATE SHRI GIRISHBHAI K. MEHTA PAS SED AWAY ITA NOS.6759 & 6662/DEL/2013 16 ON 11.10.1998. A SEARCH WARRANT WAS ISSUED BY THE D IRECTOR OF INVESTIGATION IN THE NAME OF THE DECEASED ON 27.09. 2001. SEARCH AT THE RESIDENTIAL PREMISES OF THE DECEASED WAS CARRIED OUT. ON SEEING THE AUTHORIZATION, IT WAS POINTED OU T TO THE SEARCH PARTY BY HIS SON, SH. GUNJAN GIRISHBHAI, THA T THE PERSON IN WHOSE NAME THE SEARCH WARRANT WAS ISSUED HAD PAS SED AWAY LONG BACK AND THEREFORE, NO SEARCH COULD BE EFFECTE D. DESPITE THAT, THE SEARCH AND SEIZURE PROCEEDINGS CONTINUED THOUGH THE SEARCH PARTY TOOK NOTE OF THE SAID FACT INASMUCH AS A LIST OF INVESTMENTS AND SEIZED PAPERS PREPARED SUBSEQUENTLY CARRIED THE HEADING 'LATE SHRI GIRISHBHAI K. MEHTA'. THEREA FTER A WARRANT OF PANCHNAMA CAME TO BE DRAWN IN THE NAME O F DECEASED PERSON AND CASH OF RS.25,000/ WAS SEIZED A ND ALSO VARIOUS OTHER DOCUMENTS. ASSESSMENT WAS COMPLETED I N THE NAME OF DECEASED AT NIL INCOME UNDER SECTION 158BC BY AN ORDER DATED 11.09.2003. THEREAFTER A NOTICE DATED 0 4.11.2003 WAS ISSUED IN THE NAME OF GUNJAN GIRISHBHAI UNDER S ECTION 158BD OF THE ACT DIRECTING HIM TO FILE BLOCK ASSESS MENT RETURN ITA NOS.6759 & 6662/DEL/2013 17 OF INCOME. AT THAT STAGE, GUNJAN GIRISHBHAI PREFERR ED THE PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF I NDIA, PRAYING I) TO QUASH THE WARRANT OF AUTHORIZATION ISSUED UND ER SECTION 132; II) TO QUASH THE ASSESSMENT ORDER DATED 11.09. 2003 FRAMED UNDER SECTION 158BC OF THE ACT AND III) TO QUASH TH E NOTICES DATED 04.11.2003 ISSUED UNDER SECTION 158BD OF THE ACT. THE HONBLE HIGH COURT NOTICED THAT IN SO FAR AS THE CH ALLENGE TO THE WARRANT OF AUTHORIZATION ISSUED UNDER SECTION 1 32 OF THE ACT AND CONSEQUENTLY TO QUASH THE ASSESSMENT ORDER DATED 11.09.2003 FRAMED UNDER SECTION 158BC OF THE ACT WA S CONCERNED, THE SAME WAS MAINLY ON THE GROUND THAT T HE SAID WARRANT OF AUTHORIZATION ISSUED UNDER SECTION 132 O F THE ACT WAS IN THE NAME OF A DEAD PERSON I.E. LATE SHRI GIR ISHBHAI K. MEHTA. THE HONBLE COURT NOTICED THAT AS A PART OF SEARCH IN THE NIRMA GROUP, THE RESIDENTIAL PREMISES OF DECEAS ED PERSON WAS COVERED UNDER SECTION 132 OF THE ACT AS THE SAI D DECEASED PERSON WAS A DIRECTOR IN AN INVESTMENT COMPANY OF T HE GROUP. IT WAS NOTICED THAT THOUGH THE AUTHORIZATION WAS IN THE NAME OF ITA NOS.6759 & 6662/DEL/2013 18 THE DECEASED, BUT THE SEARCH WARRANT WAS ISSUED FOR THE CORRECT ADDRESS OF THE DECEASED. IT WAS ALSO NOTED THAT AT THE TIME OF SEARCH OF THE AFORESAID PREMISES, GUNJAN GIRISHBHAI SIGNED THE PANCHNAMA, CLAIMING TO BE THE HEIR OF DECEASED PERS ON. NOT ONLY THAT EVEN THEREAFTER WHEN THE PROCEEDINGS UNDE R SECTION 158BC OF THE ACT CAME TO BE INITIATED, NO PROTEST W AS RAISED BY THE PETITIONER AND ON THE CONTRARY, THE RETURN O F THE INCOME FOR THE BLOCK PERIOD WAS FILED ON 03.10.2002 AND TH E SAME WAS ALSO SIGNED BY HIM AND THEREAFTER THE ASSESSMENT OR DER DETERMINING THE INCOME AT 'NIL' WAS PASSED ON 11.09 .2003. SINCE THE SEARCH WARRANT WAS ISSUED FOR A PREMISES AS A PART OF SEARCH IN NIRMA GROUP, THE HONBLE HIGH COURT HELD THAT IT COULD NOT BE SAID THAT SUCH SEARCH WARRANT WAS NULL AND VOID. THE HONBLE HIGH COURT THEN ESPOUSED THE CHALLENGE TO THE NOTICE U/S 158BD ON THE GROUND THAT AS THE WARRANT OF AUTHORIZATION ISSUED UNDER SECTION 132 OF THE ACT W AS PER SE ILLEGAL AS IT WAS AGAINST A DEAD PERSON, THE SEARCH COULD NO LONGER BE VALID AND THEREFORE, CHAPTER XIVB OF THE ACT WOULD ITA NOS.6759 & 6662/DEL/2013 19 BECOME INAPPLICABLE AND AS SUCH NO NOTICE U/S 158BD WOULD STAND. REJECTING SUCH A CONTENTION, THE HONBLE HIG H COURT NOTED THAT NOTICE U/S 158BD WAS SERVED ON GUNJAN GI RISHBHAI, AND EVEN IF IT WAS PRESUMED THAT THE AUTHORIZATION FOR SEARCH UNDER SECTION 132 OF THE ACT WAS BAD AND ILLEGAL AS THE SAME WAS AGAINST THE DEAD PERSON, THE PROCEEDINGS U/S 15 8BD COULD NOT BE DECLARED AS INVALID ON THE GROUND OF INVALID ITY OF SEARCH WARRANT BECAUSE THERE WAS NO REQUIREMENT U/S 158BD THAT THERE MUST BE A LEGAL AND/OR VALID SEARCH UNDER SECTION 1 32 OF THE ACT. AS SUCH, GUNJAN GIRISHBHAI WAS HELD TO BE NOT ENTITLED TO ANY RELIEF WITH RESPECT TO THE CHALLENGE TO THE NOT ICE UNDER SECTION 158BD OF THE ACT. THE HONBLE APEX COURT HA S SINCE DISMISSED THE SLP IN GUNJAN GIRISHBHAI MEHTA (SUPRA) . THEIR LORDSHIPS HAVE NOTED IN PARA 4 OF THE JUDGMENT THAT THE POINT URGED BEFORE IT WAS THAT IF THE ORIGINAL SEARCH WAR RANT WAS INVALID THE CONSEQUENTIAL ACTION UNDER SECTION 158B D WOULD ALSO BE INVALID. REJECTING SUCH A CONTENTION, THE H ONBLE SUMMIT COURT HELD THAT : `THE ISSUE OF INVALIDITY O F THE SEARCH ITA NOS.6759 & 6662/DEL/2013 20 WARRANT WAS NOT RAISED AT ANY POINT OF TIME PRIOR T O THE NOTICE UNDER SECTION 158BD. IN FACT, THE PETITIONER HAD PA RTICIPATED IN THE PROCEEDINGS OF ASSESSMENT INITIATED UNDER SECTI ON 158BC OF THE ACT. THE INFORMATION DISCOVERED IN THE COURS E OF THE SEARCH, IF CAPABLE OF GENERATING THE SATISFACTION F OR ISSUING A NOTICE UNDER SECTION 158BD, CANNOT ALTOGETHER BECOM E IRRELEVANT FOR FURTHER ACTION UNDER SECTION 158BD O F THE ACT. 11. ON GOING THROUGH THE MANDATE OF THE JUDGMENT OF THE HONBLE SUPREME COURT, IT BECOMES EVIDENT THAT THE CHALLENGE BEFORE IT WAS TO THE NOTICE U/S 158BD, BEING THE NO TICE FOR ASSESSMENT OF INCOME OF ANY PERSON OTHER THAN THE P ERSON SEARCHED. WHEREAS SECTION 158BC IN THE EARLIER PRO VISIONS OF ASSESSMENT OF SEARCH CASES UNDER CHAPTER XIV-B DEAL T WITH THE ASSESSMENT OF A PERSON SEARCHED, SECTION 158BD DEAL T WITH THE ASSESSMENT OF `ANY OTHER PERSON. IN THE SUCCESSOR PROVISIONS, DEALING WITH SEARCH, INTRODUCED W.E.F. 1.6.2003, SE CTION 153A DEALS WITH THE ASSESSMENT OF A PERSON SEARCHED AND SECTION ITA NOS.6759 & 6662/DEL/2013 21 153C WITH THE ASSESSMENT OF `ANY OTHER PERSON. IN OTHER WORDS, SECTION 153A IS A PARALLEL OF SECTION 158BC AND SECTION 153C IS A PARALLEL OF SECTION 158BD. IN THE INSTANT CASE, IT IS THE ASSESSMENT OF PERSON ALLEGEDLY SEARCHED, WHICH IS DISPUTED BEFORE US, UNLIKE THE NOTICE ISSUED FOR THE ASSESSM ENT OF `OTHER PERSON BEFORE THE HONBLE SUPREME COURT. EVEN OTHE RWISE, THE ISSUE OF INVALIDITY OF THE SEARCH WARRANT IN TH AT CASE WAS NOT RAISED AT ANY POINT OF TIME PRIOR TO THE NOTICE UNDER SECTION 158BD. ON THE CONTRARY, THE ASSESSEE CONTESTED THE VALIDITY OF SEARCH BEFORE THE AO AT THE VERY THRESHOLD, IMMEDIA TELY ON RECEIPT OF NOTICE U/S 153A. MOREOVER, IN THAT CASE, A SEARCH OPERATION ACTUALLY TOOK PLACE AND THE DEFECT, IF AN Y, CLAIMED WAS IN THE WARRANT OF AUTHORIZATION. IN THE OPPUGNA TION, THE REVENUE IN THE INSTANT CASE HAS FAILED TO DEMONSTRA TE THAT ANY SEARCH ACTION WAS, IN FACT, TAKEN ON THE ASSESSEE. WE ARE REMINDED OF THE CELEBRATED JUDGMENT OF THE HONBLE SUPREME COURT IN POORAN MAL VS. DIRECTOR OF INSPECTION (1974) 93 ITR 505 (SC) LAYING DOWN THAT THE MATERIAL SEIZED IN AN ILLEGA L ITA NOS.6759 & 6662/DEL/2013 22 SEARCH CAN BE VALIDLY USED BY THE INCOME-TAX AUTHO RITIES. THE JUDGMENT IN GUNJAN GIRISHBHAI MEHTA (SUPRA) IS REITERATION OF ALMOST THE SAME VIEW, WHEN IT HELD THAT `THE INFORM ATION DISCOVERED IN THE COURSE OF THE SEARCH, IF CAPABLE OF GENERATING THE SATISFACTION FOR ISSUING A NOTICE UNDER SECTION 158BD, CANNOT ALTOGETHER BECOME IRRELEVANT FOR FURTHER ACT ION UNDER SECTION 158BD OF THE ACT. WHAT TO TALK OF SOME `I NFORMATION DISCOVERED IN THE COURSE OF SEARCH IN THE CASE UND ER CONSIDERATION, THE REVENUE HAS NOT PROVED THE BASIC FACT THAT THE ASSESSEE WAS SUBJECTED TO ANY SEARCH. CONTENTIO N OF THE LD. DR, ON THE BASIS OF CERTAIN OBSERVATIONS MADE IN TH E JUDGMENT OF GUNJAN GIRISHBHAI (SUPRA) VALIDATING THE ASSESSMENT ON ATTENDING THE ASSESSMENT PROCEEDINGS, THAT THE VALI DITY OF NOTICE U/S 153A BE UPHELD AS THE PRESENT ASSESSEE A LSO ATTENDED THE ASSESSMENT PROCEEDINGS, IS SANS MERIT. SUCH OBS ERVATIONS IN THE JUDGMENT ARE TO BE SEEN IN THE CONTEXT IN WH ICH THESE WERE MADE, BEING THE ACTUALLY CARRYING OUT OF A SEA RCH OPERATION AND FINDING OF SOME INCRIMINATING MATERIA L. IT GOES ITA NOS.6759 & 6662/DEL/2013 23 WITHOUT SAYING THAT IF NO SEARCH IS INITIATED OR CA RRIED OUT, A SIMPLE PARTICIPATION BY THE ASSESSEE PURSUANT TO NO TICE OF ASSESSMENT, AND THAT TOO, AFTER REGISTERING A PROTE ST AGAINST SUCH PROCEEDINGS, CANNOT VALIDATE THE JURISDICTION OF AO, IF SUCH JURISDICTION IS, IN FACT, ABSENT. AS SUCH, WE FIND THAT THIS JUDGMENT DOES NOT HELP THE REVENUE IN ANY MANNER. 12. THE LD. DR NEXT PRESSED INTO SERVICE ANOTHER JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN MDLR RESORTS PVT. LTD. VS. CIT & ORS. (2014) 361 ITR 407 (DEL) TO PROP UP HIS CONTENTION THAT MERE FAILURE OF THE REVENUE TO NAME THE ASSESS EE IN WARRANT OF AUTHORIZATION COULD NOT AFFECT THE VALID ITY OF NOTICE ISSUED U/S 153A OF THE ACT. IN THAT CASE, NOTICE U /S 153A WAS ISSUED PURSUANT TO SEARCH AND SEIZURE OPERATION U/S 132 IN THE PREMISES OF THE PETITIONER. THE ASSESSING OFFICER PASSED ASSESSMENT ORDER MAKING ADDITION THEREOF. REVISION PETITION U/S 264 WAS FILED CLAIMING THAT THE ASSESSMENT PROC EEDINGS U/S 153A WERE INVALID AS NO PANCHNAMA WAS DRAWN IN TH E NAME ITA NOS.6759 & 6662/DEL/2013 24 OF THE PETITIONER. THE HON'BLE HIGH COURT DISMISSED THE OBJECTION BY HOLDING THAT THOUGH THE NAME OF THE PE TITIONER DID NOT FIGURE IN THE PANCHNAMA, BUT, SEARCH WARRANT WAS ISSUED AGAINST ALL THE PETITIONERS AND DOCUMENTS AND PAPER S, ETC., RELATING TO THE PETITIONER WERE ALSO SEIZED AND DUL Y MENTIONED IN THE ANNEXURE TO THE PANCHNAMA. WE ARE UNABLE TO COMPREHEND AS TO HOW THIS JUDGMENT ADVANCES THE CAS E OF THE REVENUE. ADMITTEDLY, IN THAT CASE, SEARCH WARRANT WAS ISSUED IN THE NAME OF THE ASSESSEE AND SUCH WARRANT WAS AL SO EXECUTED. CERTAIN INCRIMINATING MATERIAL WAS ALSO FOUND. MERE FAILURE TO MENTION THE NAME OF THE PETITIONER IN PANCHNAMA WAS HELD TO BE NOT AFFECTING THE VALIDI TY OF THE SEARCH. AU CONTRAIRE , THE FACTS OF THE INSTANT CASE ARE ABSOLUTELY DISTINGUISHABLE. WE ARE CONCERNED WITH A SITUATION IN WHICH NEITHER ANY WARRANT OF AUTHORIZATION WAS I SSUED IN THE NAME OF THE ASSESSEE NOR ANY SEARCH HAD ACTUALLY TA KEN PLACE, MUCH LESS THE FINDING OF ANY INCRIMINATING MATERIAL . AS SUCH, WE HOLD THAT THIS JUDGMENT DOES NOT HELP THE REVENU E. ITA NOS.6759 & 6662/DEL/2013 25 13. THE LD. DR, IN AN UNTIRING ENDEAVOUR, INVOKE D THE PROVISIONS OF SECTION 124(3) OF THE ACT. HE CONTEND ED THAT THE JURISDICTION OF THE ASSESSING OFFICER CAN BE CHALLE NGED ONLY BEFORE THE AO AND THAT TOO, WITHIN A PERIOD OF 30 D AYS FROM THE DATE OF NOTICE U/S 142(1) OR SECTION 143(2). AS THE ASSESSEE FAILED TO DO SO, THE LD. DR CONTENDED THAT, IT LOST THE RIGHT TO TAKE UP THIS ISSUE BEFORE THE TRIBUNAL AT THIS STAG E. TO BUTTRESS HIS CONTENTION, HE RELIED ON THE JUDGMENT DATED 05. 08.2010 OF THE HON'BLE DELHI HIGH COURT IN CIT VS. KAPIL JAIN (ITA NO.613 OF 2009) . WITH THE HELP OF THIS JUDGMENT, WHOSE COPY HAS BEEN PLACED ON RECORD, IT WAS CONTENDED THAT IF NO OBJECTION IS TAKEN WITHIN ONE MONTH IN TERMS OF SEC TION 124 (3), THEN, THE ASSESSEE IS DEBARRED FROM RAISING SU CH OBJECTION IN THE ASSESSMENT PURSUANT TO SEARCH. 14. THERE CAN BE NO QUARREL ON THE RATIO OF THE JUDGMENT. HOWEVER, WE ARE AGAIN NOT CONVINCED WITH THE POINT PUT FORTH ON BEHALF OF THE REVENUE. IT IS SEEN THAT NOTICE U /S 153A OF ITA NOS.6759 & 6662/DEL/2013 26 THE ACT WAS ISSUED BY THE ASSESSING OFFICER ON 25.0 8.2010. THE ASSESSEE OBJECTED TO THE SAME VIDE ITS LETTER D ATED 14.09.2010, CONTENDING THAT THE PROVISIONS OF SECTI ON 153A WERE NOT ATTRACTED AS NO SEARCH WAS INITIATED ON IT U/S 132. IT IS VIVID FROM THE ABOVE DATES THAT THE ASSESSEE RAISED OBJECTION TO THE JURISDICTION OF THE ASSESSING OFFICER WITHIN TH E STIPULATED PERIOD OF 30 DAYS FROM THE DATE OF NOTICE U/S 153A. WHEN POINTED OUT, THE LD. DR TOOK THE ARGUMENT TO A NEW LEVEL BY CONTENDING THAT SECTION 124 TALKS OF RAISING OBJECT ION WITHIN 30 DAYS FROM THE DATE OF NOTICE U/S 143(2) AND 142(1) AND NOT THE NOTICE U/S 153A. SINCE THE RELEVANT NOTICE IN THIS CASE WAS ISSUED ON 11.10.2010, HE ARGUED THAT IN THE ABSENCE OF THE ASSESSEE OBJECTING TO THE SAME WITHIN 30 DAYS FROM THIS DATE, THE PLEA OF LACK OF JURISDICTION COULD NOT BE TAKEN UP. 15. WE ARE UNABLE TO APPRECIATE THE CONTENTION F OR THE OBVIOUS REASON THAT ONCE THE ASSESSEE PLACED ON REC ORD ITS OBJECTION BEFORE THE ASSESSING OFFICER PURSUANT TO NOTICE U/S ITA NOS.6759 & 6662/DEL/2013 27 153A, THERE WAS NO OCCASION FOR IT TO ONCE AGAIN RE PEAT THE SAME OBJECTION AFTER THE ISSUANCE OF NOTICE U/S 143 (2). THE ASSESSEE KEPT ON VEHEMENTLY CONTESTING BEFORE THE A SSESSING OFFICER THAT HE HAD NO JURISDICTION BECAUSE NO WARR ANT OF AUTHORIZATION WAS ISSUED IN ITS NAME, BUT, THE ASSE SSING OFFICER REJECTED THE SAME. ONCE THE ASSESSING OFFI CER ISSUED NOTICE U/S 143(2), AFTER REJECTING THE ASSESSEES O BJECTIONS IN THIS REGARD, THE ASSESSEE COULD NOT HAVE, POSSIBLY TAKEN UP THE SAME ISSUE ONCE AGAIN. THE ESSENCE OF THE MATTER I S THAT THERE SHOULD BE SOMETHING TO DEMONSTRATE THAT THE ASSESSE E DID CHALLENGE BEFORE THE ASSESSING OFFICER THE JURISDIC TION TO ISSUE NOTICE U/S 153A, WHICH IS PATENTLY PRESENT IN THE I NSTANT CASE. IN KAPIL JAIN (SUPRA) , SEARCH WAS CONDUCTED AT THE PREMISES OF THE FATHER OF THE ASSESSEE. NOTICE U/S 158BC WAS I SSUED ON THE ASSESSEE. SUBSEQUENTLY, THE CASE WAS TRANSFERRED T O ANOTHER CIRCLE. JURISDICTION OF THE ASSESSING OFFICER TO I SSUE NOTICE U/S 158BD READ WITH SECTION 158BC WAS CHALLENGED. THE SAME WAS ACCEPTED BY THE TRIBUNAL. IN FURTHER APPEAL, R ELYING ON ITA NOS.6759 & 6662/DEL/2013 28 SECTION 124(3) OF THE ACT, THE HON'BLE HIGH COURT H ELD THAT THE PLEA OF TRANSFER WAS NOT RAISED BY THE ASSESSEE `WI THIN ONE MONTH FROM WHICH HE WAS SERVED NOTICE U/S 158BD OF THE ACT. AS SUCH, THE TRIBUNAL ORDER WAS SET ASIDE. 16. WE FIND THAT THE JUDGMENT RATHER THAN SERVIN G THE STAND OF THE LD. DR, SUPPORTS THE ASSESSEE. IN THAT CASE , THE HON'BLE HIGH COURT NOTICED: IT IS NOT IN DISPUTE THAT THE PLEA OF THE JURISDICTION WAS NOT RAISED BY THE ASSESSEE AT ALL WITHIN ONE MONTH FROM THE DATE ON WHICH HE WAS SERVED NOTICE U /S 158BD OF THE ACT. REFERENCE TO THE ONE MONTH PERIOD IN T HIS JUDGMENT HAS BEEN MADE FROM THE DATE OF NOTICE U/S 158BD AND NOT THE NOTICE UNDER SECTIONS 142(1) AND 143(2) OF THE ACT. THERE IS NO DISPUTE THAT THE ASSESSEE DID RAISE OBJ ECTION WITHIN ONE MONTH FROM THE DATE OF NOTICE U/S 153A. AS SUC H, WE ARE NOT INCLINED TO ACCEPT THE CONTENTION ADVANCED BY T HE LD. DR IN THIS REGARD. ITA NOS.6759 & 6662/DEL/2013 29 17. NOW WE TAKE UP THE REASONING IN THE IMPUGNED ORDER REJECTING THE CONTENTION OF THE ASSESSEE OF INVALID ITY OF NOTICE U/S 153A. THE LD. CIT(A) RECORDED IN PARA 3.2 OF TH E IMPUGNED ORDER THAT THE ASSESSEE NEVER RAISED THE ISSUE OF A LLEGED INVALIDITY OF SEARCH OR NOTICE U/S 153A AT THE ASSE SSMENT STAGE. WE HAVE REFERRED TO THE CORRESPONDENCE BETWEEN THE ASSESSEE AND THE ASSESSING OFFICER, WHICH AMPLY SHOWS THAT T HE ASSESSEE DID RAISE OBJECTION BEFORE THE ASSESSING O FFICER IN THIS REGARD. THEREAFTER, THE LD. CIT(A) RELIED ON THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. ANIL KUMAR BHATIA (2013) 352 ITR 493 (DEL) FOR REJECTING THE ASSESSEES CONTENTION. THIS JUDGMENT, IN OUR CONSI DERED OPINION, HAS NO APPLICATION TO THE FACTS OF THE INS TANT CASE INASMUCH AS THE PROPOSITION LAID DOWN IN THAT CASE IS THAT THE ASSESSING OFFICER HAS POWER U/S 153A TO MAKE ASSESS MENT FOR ALL THE SIX YEARS AND COMPUTE TOTAL INCOME INCLUDIN G UNDISCLOSED INCOME NOTWITHSTANDING THAT THE ASSESSE E FILED RETURN BEFORE THE DATE OF THE SEARCH. ADMITTEDLY, IN THAT CASE, ITA NOS.6759 & 6662/DEL/2013 30 THE SEARCH WAS CONDUCTED ON THE ASSESSEE, BUT, NO D OCUMENT OR INCRIMINATING MATERIAL EXCEPT ONE UNSIGNED UNDERTAK ING FOR THE LOAN WAS FOUND. CONTRARY TO THAT, THE CASE OF THE ASSESSEE BEFORE US IS THAT NO SEARCH WAS CONDUCTED AT ALL ON IT. THUS, THIS JUDGMENT IS NOT APPLICABLE. THEREAFTER, THE L D. CIT(A) RELIED ON THE CASE OF ASHOK CHADHA VS. ITO (2011) 337 ITR 399 (DEL) . THAT JUDGMENT IS, AGAIN, OF NO CONSEQUENCE BECAUSE OF THE PROPOSITION LAID DOWN THEREIN TO THE EFFECT THAT NO NOTICE WAS REQUIRED TO BE ISSUED U/S 143(2) OF T HE ACT WHICH IS OBVIOUSLY NOT AN ISSUE BEFORE US. THE LAS T RELIANCE OF THE LD. CIT(A) IS ON THE JUDGMENT OF THE HON'BLE SU PREME COURT IN THE CASE OF POORAN MAL (SUPRA) IN WHICH IT HAS BEEN LAID DOWN THAT EVEN THOUGH SEARCH AND SEIZURE WAS I N CONTRAVENTION OF THE PROVISIONS OF SECTION 132, BUT , THE MATERIAL SEIZED CAN BE USED AGAINST THE PERSON FROM WHOSE CUSTODY IT WAS SEIZED. THIS JUDGMENT, AGAIN, DOES NOT SUPPORT THE CASE OF THE REVENUE ANY FURTHER FOR THE REASON THAT NO INCRIMINATING MATERIAL WORTH THE NAME COULD HAVE BE EN SEIZED ITA NOS.6759 & 6662/DEL/2013 31 FROM THE ASSESSEE AS THE SEARCH ITSELF WAS NOT COND UCTED. ERGO, IT IS ABUNDANTLY CLEAR THAT THE VIEW CANVASSED BY T HE LD. CIT(A) IN VALIDATING THE ISSUE OF NOTICE U/S 153A F OLLOWED BY THE ASSESSMENT UNDER THIS SECTION, CANNOT BE COUNTE NANCED. 18. IN VIEW OF THE FOREGOING DISCUSSION, IT IS CL EAR BEYOND ANY SHADOW OF DOUBT THAT THE NOTICE U/S 153A OF THE ACT WAS ISSUED WITHOUT ANY JURISDICTION. THE NATURAL COROLL ARY, WHICH THEREFORE, FOLLOWS IS THAT ALL THE PROCEEDINGS FLOW ING FROM SUCH INVALID NOTICE, INCLUDING THE RESULTANT ASSESSMENT ORDER, ARE BAD IN LAW AND HENCE LIABLE TO BE QUASHED. WE ORDE R ACCORDINGLY. 19. QUA THE APPEAL OF THE REVENUE, WITHOUT PREJUDICE TO TH E ARGUMENT ABOUT THE INVALIDITY OF NOTICE AND THE RES ULTANT ASSESSMENT ORDER, THE LD. AR SUBMITTED THAT PURSUAN T TO THE MANDATE OF SECTION 268A, THE CBDT HAS ISSUED CIRCUL AR NO. 21 OF 2015 DATED 10.12.2015 WITH RETROSPECTIVE EFFECT, REVISING THE MONETARY LIMIT TO RS.10,00,000/- FOR NOT FILING APPEAL BY ITA NOS.6759 & 6662/DEL/2013 32 THE REVENUE BEFORE THE TRIBUNAL. HE FURTHER SUBMIT TED THAT AS THE TAX EFFECT INVOLVED IN THE APPEAL OF THE REVENU E IS LESS THAN RS.10,00,000/-, THE EXTANT APPEAL IS NOT MAINT AINABLE. THE LD. D.R., ALTHOUGH SUPPORTED THE ORDER OF THE A SSESSING OFFICER, BUT COULD NOT CONTROVERT THE FACT THAT TAX EFFECT INVOLVED IN THIS APPEAL IS LESS THAN RS.10,00,000/- . GOING BY THE PRESCRIPTION OF THE AFORENOTED CIRCULAR, WE ARE OF THE VIEW THAT THE REVENUE SHOULD HAVE EITHER NOT FILED THE I NSTANT APPEAL BEFORE THE TRIBUNAL OR WITHDRAWN THE SAME AS THE TA X EFFECT IN THIS APPEAL IS ADMITTEDLY LESS THAN THE PRESCRIBED LIMIT FOR NOT FILING THE APPEALS. FROM PARA 10 OF THE ABOVE CIRC ULAR IT IS OVERT THAT THE INSTRUCTION IS APPLICABLE TO THE PEN DING APPEALS ALSO WITH RETROSPECTIVE EFFECT AND THERE IS A CLEAR -CUT DIRECTION TO THE DEPARTMENT TO WITHDRAW OR NOT PRESS SUCH APP EALS FILED BEFORE THE ITAT WHEREIN TAX EFFECT IS LESS THAN RS. 10,00,000/-. EX CONSEQEUNTI, WE DISMISS THE INSTANT APPEAL ON THIS SCORE AS WELL. ITA NOS.6759 & 6662/DEL/2013 33 20. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED AND THAT OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28.04.2017. SD/- SD/- [SUCHITRA KAMBLE] [R.S. SYAL] JUDICIAL MEMBER VICE PRESIDENT DATED, 28 TH APRIL, 2017. DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT NEW DELHI.
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