Gulab Maharu Badgujar (HUF), Thane V. Additional Commissioner of Income-tax, Nashik

ITA 766/PUN/2017

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 3116 (ITAT-PUNE)
• Duration Of Justice: 5 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 30-03-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Tangible material
• Section: 263; 143(3); 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER ITA NoS. 766 & 767/PUN/2017 (Assessment Years: 2008-09 & 2009-10) Shri Gulab Maharu Badgujar (HUF) 204. Pashpuatinath, C-02 B-Wingh, Mahadev Nashik Sankalp Complex Gandhar Village, Kalyan (W) Thane 421301 Vs. ACIT, Circle-2 Room No. A-316, 3rd Floor Kendria Rajaswan Bhavan Gadkri Chowk, Old Agra Rd. Nashik 422002 PAN – AAEHG6745C Appellant Respondent Appellant by: Shri Pramod S Shingte Respondent by: Shri S.P. Walimbe Date of Hearing: 26.04.2022 Date of Pronouncement: 04.05.2022 O R D E R Per S.S. Godara, JM These assessee’s twin appeals for AYs 2008-09 & 2009-10 arise against the CIT(A) 12, Pune’s common order dated 11.01.2017 passed in case No. PN/CIT (A)-12/371 & 373/2015-16 involving proceedings under Section 143(3) r.w.s. 147 of the Income Tax Act, 1961 (in short the Act). Heard both the parties. Case files perused. 2. The assessee’s identical first and foremost substantive ground challenges validity of the impugned reopening. It emerges at the outset that the Assessing Officer had initiated Section 148/147 proceedings on account of the fact that there was a search action dated 17.09.2010 in the case of M/s. Suyojit Group wherein the department had found/seized alleged incriminating documents which followed the assessee’s search statement recorded on 16.10.2010. The Assessing Officer thereafter appears to have taken recourse to Section 148/147 mechanism thereby treating corresponding information and material unearthed during the search as the tangible material for recording reopening reasons that the assessee’s taxable ITA No. 766/Pun/2017 Shri Gulab Maharu Badgujar (HUF) 2 income had escaped assessment. The same culminated in the impugned addition of Rs.45,00,000/- and Rs.40,00,000/-; assessment year wise, respectively made in its hands which stands upheld in the CIT(A)’s common order. 3. Learned counsel vehemently argued during the course of hearing that this tribunal’s coordinate bench’ order in assessee’s cases itself for AYs 2006- 07 and 2011-12 involving appeals ITA Nos. 798 & 799/Pun/2015 has quashed the CIT’s action assuming Section 263 revision jurisdiction. Mr. Shingte also sought to invite our attention to the learned coordinate bench’s detailed discussion that it had very well examined the corresponding land transactions in AYs 2006-07, 2009-10 and 2011-12 involving a total amount of Rs.2.98 crores. And that the tabulation in para 7, page 4 that the Assessing Officer had not initiated any reopening action in AY 2007-08 allegedly involving 127 lakhs. 4. We have given our thoughtful consideration to the rival pleadings. We make it clear first of all that any incriminating material found in a search belong to a third party in a search on or before 01.06.2015 led to initiation of 153C proceedings. The legislature thereafter added the clinching statutory expression(s) “pertains to” and “relates” in Section 153C of the Act w.e.f. 01.06.2015. We make it clear that we are dealing with a search dated 17.09.2010 leading to the documentary evidence as well as the assessee’s statement recorded during the course thereof. All that stood treated as the tangible material by the Assessing Officer for recording his reasons to believe that this assessee’s impugned taxable income liable to be taxed has escaped assessment. We also deem it appropriate to observe here that we put a query as to whether the impugned reopening has been initiated beyond four years from the end of the relevant assessment year in light of Section 147 first proviso. It turn out that neither of these twin assessment years involve Section 143(3) regular assessment which forms a pre-condition for application of foregoing statutory proviso. We thus uphold validity of the impugned reopening. 5. Now comes assessee’s seeking parity with other remaining assessment years. Suffice to say, a perusal of record suggests that the Assessing Officer ITA No. 766/Pun/2017 Shri Gulab Maharu Badgujar (HUF) 3 had completed his Section 143(3) r.w.s 147 assessment(s) on 14.02.2014 which formed subject matter of the CIT’s Section 263 revision orders; both dated 19.03.2015. Learned coordinate bench has reversed the same. Meaning thereby that similar reopening stands upheld in principle. Coming to the arguments that since no addition is being made in other assessment year pertaining to the entire sum of Rs. 2.80 lakhs and therefore, he should be allowed necessary relief in these two assessment years as well, we find that there is not even a single documentary evidence filed before us that the Assessing Officer had very well examined or applied his mind on the corresponding tangible material in any other assessment year. We further wish to make it clear that we are dealing with a reopening action based on a specific tangible material in these twin assessment years which had been found in the course of search as well as assessee’s statement whose rebuttal has not come on facts at all. We accordingly affirm these twin additions of Rs.45,00,000/- and Rs.40,00,000/-; respectively. No other ground has been pressed before us. 6. Theses assessee’s twin appeals are dismissed in above terms. A copy of the common order be placed on the respective case files. Order pronounced in the open court on 4 th May, 2022. Sd/- Sd/- (Dipak P. Ripote) (S.S. Godara) Accountant Member Judicial Member Pune, Dated: 4 th May, 2022 Copy to: 1. The Appellant 2. The Respondent 3. The CIT(A) -12, Pune 4. The Pr.CIT - Central, Nagpur 5. The DR, “A” Bench, ITAT, Pune By Order //True Copy// Assistant Registrar ITAT, Pune Benches, Pune n.p.