ITO 2(2)(1), MUMBAI V. I.A. & I.C PVT .LTD, MUMBAI

ITA 7479/MUM/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5704 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-05-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2005-2006
• Appeal Filed On: 19-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AWUNGSHI GIMSON LD
• Assessee Lawyers: POOJAN MEHTALD
• Keywords: Opportunity of being heard; Set aside
• Section: 132; 15

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.7479/MUM/2016 ( / ASSESSMENT YEAR: 2005-06) & ./ I.T.A. NO.7480/MUM/2016 ( / ASSESSMENT YEAR: 2006-07) INCOME T AX OFFICER - 2(2)(1) ROOM NO.549, 5 TH FLOOR AAYKAR BHAVAN, M.K. ROAD NEW MARINE LINES, MUMBAI-400 020. / VS. M/S. I.A. & I.C. PVT. LTD. 16, GUNDECHA CHAMBER NAGINDAS MASTER ROAD FORT, MUMBAI-400 023. ! ./ ./PAN/GIR NO. AAACI-2620-K ( /APPELLANT ) : ( / RESPONDENT ) ASSESSEE BY : SHRI POOJAN MEHTA-LD.AR DEPA RTMENT BY : SHRI AWUNGSHI GIMSON-LD.DR / DATE OF HEARING : 09/05/2019 / DATE OF PRONOUNCEMENT : 14/05/2019 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER):- 1. AFORESAID APPEALS BY REVENUE FOR ASSESSMENT YEAR S [AYS] 2005-06 AND 2006-07 CONTEST SEPARATE ORDERS OF LD. FIRST AP PELLATE AUTHORITY ON IDENTICAL GROUNDS OF APPEAL AND THEREFORE, DISPOSED -OFF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE & BREVITY. 2 2. THE REGISTRY HAS NOTED A DELAY OF 52 DAYS IN ITA NO. 7480/MUM/2016. HOWEVER, WE OBSERVE THAT THE SAME IS ARISING IN VIE W OF THE FACT THAT THE DATE OF COMMUNICATION OF THE ORDER APPEALED AGAINST IN COLUMN NO.9 OF FORM 36 HAS BEEN MENTIONED AS 29/08/2016 WHICH IS THE DATE OF THE ORDER APPEALED AGAINST. THE PERUSAL OF AUTHORIZATION MEMO DATED 15/12/2016, AS PLACED ON RECORD, REVEAL THAT THE ORDER HAS BEEN RE CEIVED ON 19/10/2016 AND NOT 29/08/2016 AS ERRONEOUSLY MENTION IN COLUMN NO.9. THEREFORE, FINDING NO DELAY IN FILING OF THE APPEAL, WE PROCEE D TO DISPOSE-OFF THE SAME. 3. THE COMMON GROUNDS OF REVENUES APPEAL, INTER-ALIA, ARE THAT THE ADDITIONS AS MADE BY LD. AO WERE DELETED MERELY ON TECHNICAL ISSUES OF NON-RECEIPT OF COMMENT FROM LD. AO AGAINST ASSESSEE S SUBMISSIONS. 4. BOTH THE REPRESENTATIVES, AT THE OUTSET, CONVERG E ON THE POINT THAT BOTH THE APPEALS MAY BE RESTORED BACK TO THE FILE O F LD. CIT(A) AS DONE BY TRIBUNAL FOR AYS 2007-08 & 2009-10 VIDE ITA NOS.7481/MUM/2016 & 7440/MUM/2016 ORDER DATED 30/08/2017 UNDER IDENTICAL FACTUAL MATRIX. THE COPY OF THE ORDER HAS BEEN PLACED ON RECORD. 5. UPON PERUSAL, WE FIND THAT THE REVENUE HAD RAISE D IDENTICAL GROUNDS OF APPEAL FOR AYS 2007-08 & 2009-10 WHEREIN THE MATTER HAS BEEN RESTORED BACK BY THE TRIBUNAL WITH FOLLOWING OBSERVATIONS: - 7. WE HAVE HEARD THE AUTHORISED REPRESENTATIVES FOR BOTH THE PARTIES, PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL AV AILABLE ON RECORD. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE FACTS OF THE CASE A ND ARE NOT IMPRESSED BY THE MANNER IN WHICH THE CIT(A) HAD PROCEEDED WITH AND DISPOSED OF THE APPEAL OF THE ASSESSEE. WE FIND THAT IT REMAINS AS A MATTER OF FACT THAT THE C ASE RECORDS OF THE ASSESSEE AS WERE THERE BEFORE THE CIT(A), AS CONCEDED BY THE LATTER, WERE FOUND TO BE INCOMPLETE. WE ARE UNABLE TO COMPREHEND THAT AS TO HOW THE CIT(A) IN T HE ABSENCE OF COMPLETE RECORDS HAD CONCLUDED THAT NO INCRIMINATING MATERIAL BELONG ING TO THE ASSESSEE WAS FOUND AND SEIZED DURING THE COURSE OF THE SEARCH & SEIZURE PR OCEEDINGS CONDUCTED UNDER SEC. 132 ON M/S JIK INDUSTRIES LTD AND ITS PROMOTER SHRI . R.G. PARIKH. WE ALSO FIND IT BEYOND OUR COMPREHENSION THAT IN THE ABSENCE OF THE COMPLE TE RECORDS HOW THE CIT(A) HAD 3 OBSERVED THAT THE ASSESSMENT IN THE CASE OF THE ASS ESSEE FOR THE YEAR UNDER CONSIDERATION, VIZ. A.Y. 2007-08 WAS UNABATED. WE A RE OF THE CONSIDERED VIEW THAT A CORRECT FACTUAL POSITION IN CONTEXT OF THE AFORESAI D ISSUES NOT ONLY HAD A MATERIAL BEARING, BUT RATHER WAS INDISPENSABLY REQUIRED FOR FAIR ADJUDICATION ON THE VALIDITY OF THE ASSUMPTION OF JURISDICTION BY THE A.O UNDER SEC. 15 3C IN THE CASE OF THE ASSESSEE. WE ARE UNABLE TO PERSUADE OURSELVES TO BE IN AGREEMENT WITH THE AFORESAID VIEW ARRIVED AT BY THE CIT(A) IN RESPECT OF THE VALIDITY OF THE ASS UMPTION OF JURISDICTION BY THE A.O UNDER SEC. 153C ON THE AFORESAID COUNT, AS THE SAME CAN S AFELY BE HELD TO HAVE BEEN ARRIVED AT BY THE CIT(A) ON THE BASIS OF AN HALF HEARTED AP PROACH ADOPTED BY HIM WHILE RECORDING THE FACTS ON THE BASIS OF INCOMPLETE RECO RDS. WE FURTHER FIND THAT EVEN OTHERWISE THE AFORESAID OBSERVATIONS OF THE CIT(A) THAT NO INCRIMINATING MATERIAL WAS SEIZED DURING THE COURSE OF SEARCH & SEIZURE PROCEE DINGS CONDUCTED ON M/S JIK INDUSTRIES LTD AND ITS PROMOTER SHRI. R.G. PARIKH, IS ITSELF FOUND TO MILITATE AND IS IN SERIOUS CONFLICT WITH HIS OBSERVATION THAT IT WAS N OT THE CASE OF THE ASSESSEE THAT ONLY ACKNOWLEDGEMENT OF RETURN AND COPIES OF THE FINAL A CCOUNT OF THE ASSESSEE WERE SEIZED DURING THE COURSE OF THE AFORESAID SEARCH & SEIZURE PROCEEDINGS. THE AFORESAID OBSERVATIONS OF THE CIT(A) THOUGH RENDERED IN CONTE XT OF THE CLAIM OF THE ASSESSEE THAT NO INCRIMINATING MATERIAL WAS FOUND AND SEIZED DURI NG THE COURSE OF THE SEARCH & SEIZURE PROCEEDINGS, THEREFORE, THE A.O COULD NOT H AVE ASSUMED JURISDICTION UNDER SEC. 153C, THUS RAISES DOUBTS AS REGARDS THE TRUE STATE OF AFFAIRS IN RESPECT OF THE NATURE OF THE MATERIAL BELONGING TO THE ASSESSEE, AS WAS SEIZ ED DURING THE COURSE OF THE SEARCH & SEIZURE PROCEEDINGS CONDUCTED ON M/S JIK INDUSTRIES LTD AND ITS PROMOTER SHRI. R.G. PARIKH. WE THUS IN THE BACKDROP OF OUR AFORESAID OB SERVATIONS, THUS IN ALL FAIRNESS AND IN THE INTEREST OF JUSTICE RESTORE THE MATTER TO THE F ILE OF THE CIT(A) FOR FRESH ADJUDICATION ON THE ISSUE AS TO WHETHER THE ASSESSMENT IN THE CASE OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION, VIZ. A.Y. 2007-08 WAS ABATED OR NOT, AND AS TO WHETHER ANY INCRIMINATING DOCUMENT /MATERIAL BELONGING TO THE ASSESSEE WAS FO UND DURING THE COURSE OF THE SEARCH & SEIZURE PROCEEDINGS CONDUCTED AS ON 04.02. 2011 ON M/S JIK INDUSTRIES LTD AND ITS PROMOTER SHRI. R.G. PARIKH. THE CIT(A) IS D IRECTED TO PROCEED WITH THE FRESH ADJUDICATION DURING THE COURSE OF THE SET ASIDE P ROCEEDINGS ONLY AFTER SUMMONING THE COMPLETE CASE RECORDS OF THE ASSESSEE. THE CIT(A) S HALL AFTER PERUSING THE COMPLETE CASE RECORDS OF THE ASSESSEE ADJUDICATE THE VALIDIT Y OF THE ADDITIONS MADE BY THE A.O IN THE HANDS OF THE ASSESSEE, IN THE BACKDROP OF THE J UDGMENT OF THE HONBLE HIGH COURT OF BOMBAY IN THE CASE OF CIT-II, THANE VS. CONTINENTAL WAREHOUSING CORPORATI ON (2015) 374 ITR 645 (BOM) . NEEDLESS TO SAY, THE CIT(A) SHALL DURING THE COUR SE OF THE SET ASIDE PROCEEDINGS AFFORD SUFFICIENT OPPORTUNITY OF BEING HEARD TO BOTH THE PARTIES, WHO SHALL REMAIN AT A LIBERTY TO SUBSTANTIATE THEIR RESPECTIVE CONTENTIONS DURING THE COURSE OF THE SET ASIDE PROCEEDINGS. WE FURTHER DIR ECT THE CIT(A) TO COMPLETE THE SET ASIDE PROCEEDINGS WITHIN A PERIOD OF SIX MONTHS FRO M THE DATE OF RECEIPT OF THIS ORDER. THE EFFECTIVE GROUNDS OF APPEAL NO(S). 1 TO 4 ARE A LLOWED FOR STATISTICAL PURPOSES IN TERMS OF OUR AFORESAID OBSERVATIONS. 4 IN VIEW OF THE ADMITTED POSITION AND TAKING A CONSI STENT STAND, BOTH THE APPEALS STANDS REMITTED BACK TO THE FILE OF LD. CIT (A) FOR FRESH ADJUDICATION ON SIMILAR LINES. 6. BOTH THE APPEALS STAND ALLOWED FOR STATISTICAL P URPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH JUNE, 2019. SD/- SD/- (SAKTIJIT DEY) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 14/05/2019 SR.PS:-JAISY VARGHESE ! '! / COPY OF THE ORDER FORWARDED TO : 1. !% / THE APPELLANT 2. &'!% / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. ( )& * , * , / DR, ITAT, MUMBAI 6. ) ,- / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.