STATE BANK OF INDIA, MUMBAI V. DCIT CIR 2(2), MUMBAI

ITA 7039/MUM/2011

• Counselvise Citation: 703919914 RSA 2011
• Duration Of Justice: 1 year(s) 10 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 21-08-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 18-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GIRIJA DAYAL
• Assessee Lawyers: K K VED; U A MEHTA
• Keywords: Search and seizure
• Section: 143(3); 153A; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E, MUMBAI BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER ITA NO. 7039/MUM/2011 ASSESSMENT YEAR: 2003-04 STATE BANK OF INDIA FINANCIAL REPORTING, COMPLIANCE & TAXATION DEPT. 3 RD FLOOR, CORPORATE CENTRE, MADAM CAMA ROAD, NARIMAN POINT, MUMBAI- 400 021 PAN: AAACS 8577 K VS. DCIT CIR 2(2) MUMBAI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI K.K. VED & MS.U.A. MEHTA REVENUE BY : SHRI GIRIJA DAYAL DATE OF HEARING : 21.08.2013 DATE OF PRONOUNCEMENT : 04.09.2013 O R D E R PER DR. S.T.M. PAVALAN, JM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF THE LD.CIT(A) -5, MUMBAI DATED 18.07.2011 FOR THE ASSES SMENT YEAR 2003-04. 2. IN THIS APPEAL, THE ASSESSEE HAS IN THE ORIGINAL GROUNDS OF APPEAL RAISED TWO ISSUES REGARDING THE VALIDITY OF RE-OPENING OF THE ASSESSMENT U/S 147 AND REDUCTION OF VALUATION OF THE SECURITIES & THE ADDITION OF DE PRECIATION. VIDE LETTER DATED 22.02.2013 THE ASSESSEE HAS ALSO RAISED THE FOLLOWI NG ADDITIONAL GROUNDS BEFORE US. THE SAID ADDITIONAL GROUNDS READ AS FOLLOWS: VALIDITY OF RE-ASSESSMENT PROCEEDINGS: 1.1 THE ASSESSING OFFICER HAS ERRED IN MAKING MULTI PLE ASSESSMENT ORDERS FOR THE SAME ASSESSMENT YEAR. 1.2 THE APPELLANT SUBMITS THAT THE CONSIDERING THE FACTS AND CIRCUMSTANCES OF ITS CASE AND THE LAW PREVAILING ON THE SUBJECT THE RE-ASSESSMENT PROCEEDINGS ITA NO. 7039/MUM/2011 STATE BANK OF INDIA ASSESSMENT YEAR: 2003-04 2 WERE NOT IN ACCORDANCE WITH LAW AND THE PROVISIONS OF THE INCOME-TAX ACT, 1961. 1.3 THE APPELLANT SUBMITS THAT THE RE-ASSESSMENT PR OCEEDINGS BE HELD TO BE BAD IN LAW AND STRUCK DOWN. RE: GENERAL 2.1 THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEN D, SUBSTITUTE AND/OR MODIFY IN ANY MANNER WHATSOEVER ALL OR ANY OF THE F OREGOING GROUNDS OF APPEAL AT OR BEFORE THE HEARING OF THE APPEAL. SINCE THE AFOREMENTIONED GROUNDS ON THE LEGAL ISSUE GO TO THE ROOT OF THE SUBJECT MATTER IN DISPUTE, WE ADMIT THE ADDITIONAL GROUND R AISED BY THE ASSESSEE. 3. AT THE OUTSET, IT HAS BEEN POINTED OUT THAT ITAT IN THE ASSESSEE OWN CASE IN ITA NOS. 5420 & 5421/MUM/2011 FOR THE ASSESSMENT YE ARS 2001-02 & 2002-03 HAS QUASHED THE ASSESSMENT ORDER PASSED U/S 143 R.W.S. 147 OF THE ACT AS ILLEGAL, ARBITRARY & WHOLLY WITHOUT JURISDICTION. THE RELEVA NT FINDINGS OF THE TRIBUNAL ARE EXTRACTED HEREUNDER: 20. APPLYING THE RATIO OF THE ABOVE DECISIONS TO THE F ACTS OF THE PRESENT CASE, WE FIND THAT THERE IS NO DISPUTE THAT THE ORIGINAL ASSESSMENT FOR THE A.Y. 2001-02 WAS COMPLETED U/S 143(3) ON 13.02. 2004 DETERMINING THE TOTAL INCOME AT RS.26,35,49,42,360/-. THEREAFTER, A SEARCH AND SEIZURE ACTION WAS INITIATED IN ASSESSEES CASE BY THE DEPARTMENT ON 02.07.2005 ON WHICH DATE THE ASSESSMENT FOR THE A.Y. 2001-02 WAS NOT PE NDING. THEREFORE, IN VIEW OF THE NON-OBSTINATE CLAUSE WITH WHICH SUB SEC TION (1) OF SECTION 153A OPENS, THE AO HAS NO JURISDICTION TO ISSUE NOTICE U /S 148 OF THE ACT IN RESPECT OF THOSE SIX ASSESSMENT YEARS WHICH FALLS WITHIN TH E EXCLUSIVE JURISDICTION OF SECTION 153A OF THE ACT AND ACCORDINGLY THE AO WAS NOT JUSTIFIED IN ISSUING NOTICE U/S 148 ON 28.08.2006 AND IN COMPLETING THE IMPUGNED ASSESSMENT U/S 143(3) R.W.S. 147 OF THE ACT ON 31.10.2006. THE AO INSTEAD OF COMPLYING WITH THE REQUIREMENT OF SECTION 153A PROCEEDED WITH THE PROVISIONS OF SECTION 147/148 WHICH ARE NOT APPLICABLE IN THE ASS ESSMENT U/S 153A OF THE ACT, THEREFORE, THE IMPUGNED ASSESSMENT COMPLETED U /S 143(3) R.W.S. 147 OF THE ACT IS A NULLITY AND AS SUCH THE ASSESSMENT ORD ER DATED 31.10.2006 PASSED U/S 143(3) R.W.S. 147 OF THE ACT IS ILLEGAL, ARBITRARY, WHOLLY WITHOUT JURISDICTION AND, HENCE, THE SAME IS QUASHED. IT IS OBSERVED THAT IN THE INSTANT CASE ALSO, THE A SSESSMENT ORDER HAS BEEN PASSED IN THE LIGHT OF THE IDENTICAL FACTS ON THE BASIS OF TH E SAME REOPENING MADE U/S 147 OF THE ACT. WHEN THE FACTS ARE BEING SO, WE ARE OF THE CONSIDERED OPINION THAT THE THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE IN THE PR ESENT CASE ARE SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE AFOREMENTIONED DEC ISION OF THE ITAT. THEREFORE WE, BY FOLLOWING THE SAID DECISION OF THE ITAT QUASH TH E ASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 147 IN THIS CASE ALSO IN THE SAME LIN E ACCORDINGLY. ITA NO. 7039/MUM/2011 STATE BANK OF INDIA ASSESSMENT YEAR: 2003-04 3 4. SINCE WE HAVE DECIDED THE ISSUE ON THE ADDITIONA L LEGAL GROUNDS RAISED BY THE ASSESSEE, THE ORIGINAL GROUNDS RAISED BY THE ASSESS EE ON THE MERITS REQUIRE NO ADJUDICATION AS THE SAME BECOME INFRUCTUOUS. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 4 TH DAY OF SEPTEMBER, 2013. SD/- SD/- (P.M. JAGTAP) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 04.09.2013. *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR E BENCH //TRUE COPY// [ BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.