GOPAL BHAGWANDAS AHUJA, MUMBAI V. DIT CC 6 (2), MUMBAI

ITA 7501/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8671 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2014-2015
• Appeal Filed On: 06-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AJAY PRATAP SINGH
• Section: 143(3); 153A; 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH G, MUMBAI BEFORE SHRI RAJESH KUMAR, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH, JUDICIAL MEMBER ITA NO.7501/M/2019 ASSESSMENT YEAR: 2014-15 SHRI GOPAL BHAGWANDAS AHUJA, 121, SOONA VILLA PERY CROSS ROAD, BANDRA WEST, MUMBAI - 400050 PAN: AABPA5620P VS. DIT CC 6(2), 19 TH FLOOR, AIR INDIA BUILDING, NARIMAN POINT, MUMBAI - 400021 (APPELLANT) (R ESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI GIRISH DAVE, A.R. REVENUE BY : SHRI AJAY PRATAP SINGH, D.R. DATE OF HEARING : 07.07.2021 DATE OF PRONOUNCEMENT : 22.07.2021 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 26.09.2019 OF THE COMMISSIO NER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS TH E CIT(A)] RELEVANT TO ASSESSMENT YEAR 2014-15. 2. THE ONLY ISSUE RAISED IN THE VARIOUS GROUNDS OF APPEAL BY THE ASSESSEE IS AGAINST THE ORDER OF LD. CIT(A) UPH OLDING THE ASSESSMENT FRAMED UNDER SECTION 153C READ WITH SECT ION 143(3) OF THE ACT DATED 29.12.2013 BY IGNORING THE FACTS THAT THE ASSESSEE WAS A SEARCHED PERSON AND ASSESSMENT SHOUL D HAVE BEEN FRAMED UNDER SECTION 153A AND NOT UNDER SECTIO N 153C OF THE ACT. ITA NO.7501/M/2019 SHRI GOPAL BHAGWANDAS AHUJA 2 3. THE FACTS IN BRIEF ARE THAT THE ASSESSEE FILED R ETURN OF INCOME ON 27.09.2013 DECLARING A TOTAL INCOME OF RS.47,45,580/-. THE CASE OF THE ASSESSEE WAS SELEC TED FOR SCRUTINY AND ASSESSMENT UNDER SECTION 143(3) OF THE ACT DATED 13.12.2012 WAS FRAMED DETERMINING THE TOTAL INCOME AT RS.4,75,12,580/- BY MAKING AN ADDITION OF RS. 4,27, 67,000/- THEREAFTER, A SEARCH OPERATION UNDER SECTION 132(1) OF THE ACT WAS CONDUCTED ON M/S. AHUJA GROUP ON 25.06.2015 AND THE RESIDENTIAL PREMISES/LOCKERS OF THE ASSESSEE WERE A LSO SEARCHED. IN PARA 2, THE AO STATED THAT NOTICE UNDER SECTION 153C OF THE ACT WAS ISSUED TO THE ASSESSEE ON 22.09.2017 AFTER RECORDING SATISFACTION IN THE CASE OF SHRI AHUJA PROPERTIES A ND REALTOR PVT. LTD. AS WELL AS IN THE CASE OF ASSESSEE WHICH WAS C OMPLIED WITH BY THE ASSESSEE BY FILING RETURN OF INCOME ON 07.11 .2017 DECLARING INCOME OF RS.47,45,581/- AND FINALLY THE ASSESSMENT WAS COMPLETED BY ASSESSING THE SAME INCOME AS ASSES SED UNDER SECTION 143(3) DATED 13.12.2016. IN THE APPELLATE PROCEEDINGS THE LD CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE BY HOLDING THAT THE ASSESSMENT HAS BEEN FRAMED CORRECTLY AND T HERE IS NO DOUBLE ADDITION. 4. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD, WE NOTE THAT IN THIS CASE THE SEARCH HAS AL SO BEEN CONDUCTED ON THE ASSESSEE AS NOTED AND OBSERVED BY THE AO IN PARA 1 OF THE ASSESSMENT ORDER. HOWEVER, IN THE SE COND PARA THE AO MENTIONED THAT NOTICE UNDER SECTION 153C OF THE ACT HAS BEEN ISSUED TO THE ASSESSEE ON 22.09.2017 AFTER REC ORDING SATISFACTION IN THE CASE OF SHRI AHUJA PROPERTIES A ND REALTOR PVT. LTD. AS WELL AS THE ASSESSEE. THEN FINALLY THE AO ASSESSED THE ITA NO.7501/M/2019 SHRI GOPAL BHAGWANDAS AHUJA 3 SAME INCOME AS WAS ASSESSED UNDER SECTION 143(3) OF THE ACT. IN THIS CASE, WE NOTE THAT ON THE DATE OF SEARCH, T HE ASSESSMENT YEAR UNDER CONSIDERATION HAS ATTAINED FINALITY. IN OTHER WORDS, THE ASSESSMENT HAS NOT ABATED ON THE DATE OF SEARCH AND THEREFORE IN ORDER TO MAKE ANY ADDITION THERE HAS T O BE INCRIMINATING MATERIAL. IN THIS CASE, WE ARE OF TH E VIEW THAT THE ASSESSMENT HAS TO BE FRAMED UNDER SECTION 153A READ WITH 143(3) OF THE ACT. HOWEVER, THE AO HAS FRAMED THE ASSESSMENT UNDER SECTION 153C READ WITH SECTION 143(3) OF THE ACT. EVEN FOR MAKING ADDITION IN THE ASSESSMENT FRAMED UNDER SECT ION 153C OF THE ACT THERE HAS TO BE SATISFACTION OF THE AO OF THE SEARCHED PERSON AS WELL AS OF THE OTHER PERSON IN RESPECT O F WHOM THE SATISFACTION HAS BEEN RECORDED WHICH IS ASSESSEE IN THE PRESENT CASE PRESUMING THAT ASSESSEE HAS NOT BEEN SEARCHED. BUT NOTHING IS COMING OUT OF THE RECORDS BEFORE US. U NDER THESE CIRCUMSTANCES, WE ARE NOT IN A POSITION TO SUSTAIN THE ORDER OF LD. CIT(A) WHEREIN THE ASSESSMENT FRAMED BY THE AO HAS BEEN UPHELD. IN OUR CONSIDERED OPINION, THE ASSESSMENT AS FRAMED BY THE AO IS NO ASSESSMENT IN THE EYES OF LAW. ACCORD INGLY, THE SAME IS QUASHED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22.07.2021. SD/- SD/- ( AMARJIT SINGH) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 22.07.2021. * KISHORE, SR. P.S. ITA NO.7501/M/2019 SHRI GOPAL BHAGWANDAS AHUJA 4 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORDER DY/ASS TT. REGISTRAR, ITAT, MUMBAI.