GOPAL AGARWAL, MUMBAI V. ACIT CC38, MUMBAI

ITA 7075/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100562 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 8 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 09-06-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 26-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY BAHADUR
• Keywords: Documents seized
• Section: 143(3); 153A

Judgement Text

GOPAL AGARWWAL ITA S 7075 & 7076 / M/201 2 1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G , MUMBAI . , , BEFORE SHRI D KARUNAKARA RAO , ACCOUNTANT MEMBER AND SHRI AMIT SHUK LA , JUDICIAL MEMBER ITA NO S . : 7075 AND 7076 /MUM/20 1 2 (ASSESSMENT YEAR S : 2007 - 08 AND 200 8 - 0 9 ) GOPAL AGARWWAL , A - 304, NIRANJAN APT, HIRA NAGAR, LINK ROAD, MULUND (WEST), MUMBAI - 400 080 .: PAN : A AJPA 1324 L VS AC IT CC - 38 , MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VIJAY MEHTA RESPONDENT BY : SHRI SANJAY BAHADUR /DATE OF HEARING : 04 - 0 8 - 2015 / DATE OF PRONOUNCEMENT : 07 - 0 8 - 20 15 ORDER PER BENCH : TH E AFORESAID APPEAL S HA VE BEEN FILED BY THE ASSESSEE AGAINST SEPARATE IMPUGNED ORDERS DATED 16.10.2012 AND 17.10.2012 PASSED BY CIT(A) - 41 , MUMBAI FOR THE QUANTUM OF ASSESSMENT PASSED U/S 143(3) R.W.S. 153C FOR THE ASSESSMENT YEA R S 2007 - 08 AND 2008 - 09 RESPECTIVELY. 2. T HE PRELIMINARY GROUND RAISED IN BOTH THE APPEALS BY WAY OF ADDITIONAL GROUNDS ARE THAT; THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN AFFIRMING THE ASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 153C , WITHOUT APPR ECIATING THE FACT THAT THERE WAS NO INCRIMINATING DOCUMENTS SEIZED OR INFORMATION GATHERED DURING THE SEARCH , WHICH CAN LEAD TO ANY ADVERSE INFERENCE FOR MAKING THE ADDITION IN THE HANDS OF THE ASSESSEE. GOPAL AGARWWAL ITA S 7075 & 7076 / M/201 2 2 3. BEFORE US, THE LD. COUNSEL SHRI VIJAY MEHTA SUBM ITTED THAT IN BOTH THE YEARS, THE ASSESSMENTS STOOD FINALIZED AT THE TIME OF SEARCH, WHICH HERE IN THIS CASE SHOULD BE RECKONED FROM THE DATE OF ISSUANCE OF NOTICE U/S 153C . N O ASSESSMENT WAS PENDING AND, THE SE ARE NON - ABATED ASSESSMENTS WITHIN THE MEANING OF SECOND PROVISO TO SECTION 153A . AFTER REFERRING TO F OLLOWING DATES AND EVENTS : - AY 2007 - 08 AY 2008 - 09 RETURN OF INCOME FILED U/S 139(1) 29.10.2007 16.09.2008 DATE OF SEARCH 12.08.2009 12.08.2009 RELEVANT DATE OF ISSUANCE OF NOTICE U/S 153C 17.08.2 010 17.08.2009 LAST DATE OF ISSUANCE OF NOTICE U/S 143(2) 31.10.2008 30.09.2009 HE SUBMITTED THAT AT THE TIME OF ISSUANCE OF NOTICE U/S 153C, THERE WAS NO PENDING ASSESSMENT FOR THE ASSESSMENT YEAR 2007 - 08 & 2008 - 09 AND THEREFORE , THEY DO NOT GET ABATED IN TERMS OF SECOND PROVISO TO SECTION 153A. IN SUCH A SITUATION, HE SUBMITTED THAT UNLESS ANY INCRIMINATING MATERIAL IS FOUND DURING THE COURSE OF SEARCH , NO ADDITION CAN BE MADE BY THE ASSESSING OFFICER OVER AND ABOVE THE INCOME ALREADY ASSESSED . HE SUBM ITTED THAT IN THE CASE OF ANOTHER FAMILY MEMBER OF THE ASSESSEE , SHRI GOPAL AGARWAL THE TRIBUNAL IN ITA NO. 4823/MUM/2012 VIDE ORDER DATED 28.05.2014 HAS DECIDED THE SIMILAR ISSUE IN FAVOUR OF THE ASSESSEE. ON THE OTHER HAND, LD. DR STRONGLY RELIED UPON TH E ORDER OF THE CIT(A) . 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE FIND THAT I N THE ADDITIONAL GROUND RAISED BY THE AS S ESSEE, THE MAIN ISSUE WHICH HAS BEEN CHALLENGED BEFORE US, IS THAT , I N ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF THE SEARCH, THE ADDITIONS MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE CIT(A) ARE BAD IN LAW AS THE ASSESSMENT S FOR THE IMPUGNED ASSESSMENT YEAR S WE RE NOT ABATED AT THE TIME OF ISSUANCE OF NOTICE U/S 153C. HERE IN THIS CASE, ADMITTEDLY, SEARCH TOO K PLACE ON 12.08.2009 AND NOTICE U/S 153C FOR ACQUIRING THE JURISDICTION FOR FOR MING THE ASSESSMENT S FOR 6 ASSESSMENT YEARS IN TERMS OF SECTION 153A, WAS ISSUED ON 17.08.2010. THUS, THE TIME LIMIT FOR GOPAL AGARWWAL ITA S 7075 & 7076 / M/201 2 3 EXAMINING THE PENDING ASSESSMENT HAS TO BE RECKONED FRO M THIS DATE. AS NOTED ABOVE, THE TIME LIMIT OF ISSUANCE OF NOTICE U/S 143(2) IN AYS 2007 - 08 & 2008 - 09 HA D EXPIRED BEFORE THE DATE OF ISSUANCE OF NOTICE U/S 153C AND RETURN OF INCOME FILED BY THE ASSESSEE THUS STOOD FINALIZED AND SUCH AN ASSESSMENT DOES NOT GET ABATED IN TERMS OF SECOND PROVISO TO SECTION 153A. ONCE THAT IS SO, NO ADDITION OVER AND ABOVE RETURNED INCOME CAN BE MADE , UNLESS ANY INCRIMINATING DOCUMENT/MATERIAL OR INFORMATION IS UNEARTHED/GATHERED AT THE TIME OF SEARCH. THIS PROPOSITION HAS NOW BEEN UPHELD BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF ALLCARGO GLOBAL LOGISTIC LTD VS CIT, REPORTED IN 374 ITR 645 (BOM) . THUS, ON THIS PRELIMINARY GROUND ALONE, THE IMPUGNED ADDITIONS MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE CIT(A) STANDS DELETED. 5. IN THE RESULT, APPEALS OF ASSESSEE FOR BOTH THE YEARS ARE TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH AUGUST , 2015. SD/ - SD/ - ( . ) ( ) ( D KARUNAKARA RAO ) ( AMIT SHUKLA ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 7 TH AUGUST , 2015 / COPY TO: - 1) / THE APPELLANT. 2) / THE RESPONDENT. 3) THE CIT (A) - 41 , MUMBAI 4) THE CIT CENTRAL I I I, MUMBAI . 5) , , / THE D.R. G BENCH, MUMBAI. 6) COPY TO GUARD FILE. / BY ORDER / / TRUE COPY / / GOPAL AGARWWAL ITA S 7075 & 7076 / M/201 2 4 / , DY. / ASSTT. REGISTRAR I.T.A.T., MUMBAI * . . *CHAVAN, SR .PS