DCIT, Agra V. M/s Gupta Academic (P) Ltd., Agra

ITA 692/AGR/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 6765 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 6 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 28-05-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 16-12-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHEFALI JUNEJA
• Assessee Lawyers: K K JAIN
• Section: 133A; 153A; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI R.K. GUPTA, JUDICIAL MEMBER AND SHRI P.K. BANSAL, ACCOUNTANT MEMBER ITA NO.692/AGR/2008 ASST. YEAR: 2002-03 DY. C.I.T., CENTRAL CIRCLE, VS. M/S. GUPTA ACAD EMIC (P) LTD., AGRA. 7, DEV NAGAR, AGRA. (PAN : AABCG 4361 J). (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. SHEFALI JUNEJA, SR. D.R. RESPONDENT BY : SHRI K.K. JAIN, C.A. ORDER PER P.K. BANSAL, A.M.: THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST T HE ORDER OF THE CIT(A) DATED 22.09.2008 BY WHICH THE CIT(A) HAS HELD THAT THE OR DER PASSED UNDER SECTION 153A OF THE INCOME-TAX ACT, 1961 (THE ACT HEREINAFTER) IS VOI D. 2. THE BRIEF FACTS OF THE CASE ARE THAT THERE HAD B EEN A SEARCH IN THE PREMISES OF SHRI RISHI KUMAR GUPTA, 7, DEV NAGAR, AGRA ON 16.09.2004. DOC UMENTS AND BOOKS OF ACCOUNTS WERE SEIZED AS PER ANNEXURE-A OF THE PANCHHNAMA. THE DO CUMENTS IN SERIAL NOS.A-5 TO A-17 WERE FOUND TO BE BELONGING TO M/S GUPTA ACADEMICS PVT. L TD. THERE WAS ALSO A SURVEY UNDER SECTION 133A ON 16.09.2004 IN THE PREMISES OF THE ASSESSEE. NOTICE UNDER SECTION 153A READ WITH SECTION 153(C) WAS ISSUED TO THE ASSESSEE FOR THE A .Y. 1999-00 TO 2004-05 FOLLOWED BY NOTICE UNDER SECTION 143(2) AND 142(1). THE ASSESSMENT UN DER SECTION 153A WAS FRAMED ON 29.12.2006. THE ASSESSEE CHALLENGED THE LEGALITY O F THE ASSESSMENT BEFORE THE CIT(A). THE 2 CIT(A), AFTER HEARING THE SUBMISSIONS OF THE ASSESS EE ALONGWITH THE PAPER BOOK, HELD THAT THE ORDER PASSED UNDER SECTION 153A WAS INVALID BY OBSE RVING AS UNDER :- I HAVE GONE THROUGH THE SUBMISSIONS OF THE APPELLA NT TOGETHER WITH THE PAPER BOOK, THE AOS CONTENTIONS AND THE FACTS ON R ECORD. THE A.O. HAS ASSUMED JURISDICTION U/S 153A READ WITH SEC. 153C ON THE SO LE GROUND THAT CERTAIN INCRIMINATING MATERIAL REFERRED TO IN ANNEXURE A OF THE PANCHNAMA WERE SEIZED BY THE DEPARTMENT IN THE COURSE OF SEARCH OF MR. RI SHI KUMAR GUPTA,. HOWEVER THE DOCUMENTS AVAILABLE ON RECORD IN THE PANCHNAMA AND ORDER U/S 133A(3)(IA) CLEARLY SHOW THAT THE DOCUMENTS AS REFERRED TO IN A NNEXURE A WERE NEVER SEIZED IN THE COURSE OF SEARCH OF MR. RISHI KUMAR GUPTA BUT I N FACT THEY WERE IMPOUNDED IN THE COURSE OF SURVEY IN THE PREMISES OF THE ASSE SSEE. HENCE THE VERY BASIS OF ASSUMING JURISDICTION U/S 153A READ TO WITH SEC. 15 3C BECOMES UNTENABLE IN LAW. THEREFORE THE VERY ORDER PASSED U/S 153A IS HELD TO BE VOID. BE THAT AS IT MAY, THE OTHER GROUNDS ARE ALSO TAKEN UP ON MERITS SO AS TO DISPOSE THEM OF ON SUBSTANTIVE BASIS ALSO. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y CONSIDERED THE SAME. THE LD. D.R. BEFORE US ALTHOUGH RELIED ON THE DOCUMENTS REFERRED TO IN ANNEXURE-A WHICH WERE SEIZED DURING THE COURSE OF SEARCH AT THE PREMISES OF SHRI RISHI KUMAR GUPTA, THE CIT(A) HAS GIVEN FINDING THAT THESE DOCUMENTS WERE SEIZED DURING THE COURSE OF SURVEY UNDER SECTION 133A. THE A.O. HAS TAKEN THE ACTION UNDER SECTION 153C ON THE BASIS OF DOCUMENTS IMPOUNDED DURING THE COURSE OF SURVEY UNDER SECTION 133A NOT ON THE BASIS OF THE M ATERIAL FOUND DURING THE COURSE OF SEARCH TAKEN PLACE AT THE PREMISES OF SHRI RISHI KUMAR GUP TA. UNDER THESE FACTS, WE DO AGREE WITH THE FINDING OF THE CIT(A) THAT THE A.O. DOES NOT HAVE A NY JURISDICTION UNDER SECTION 153 TO MAKE ASSESSMENT ON THE ASSESSEE. WE ACCORDINGLY CONFIRM THE ORDER OF THE CIT(A) 4. IN THE RESULT, APPEAL FILED BY THE REVENUE STAND S DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 25.06.201 0). SD/- SD/- (R.K. GUPTA) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: AGRA DATE: 25 TH JUNE, 2010. PBN/* 3 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR, ITAT, AGRA BENCH, AGRA 6. GUARD FILE ASSIST ANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY