Mahendra Barumal Agarwal, Pune V. CIT(A-1), Pune,

ITA 769/PUN/2007

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79989 (ITAT-PUNE)
• Duration Of Justice: 7 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 23-05-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS M S VERMA
• Keywords: Block assessment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NO.769/PN/2007 (BLOCK PERIOD 1997-98 TO 2003-04) SHRI MAHENDRA BARUMAL AGARWAL 141/E, SHIV BHAVAN, YERWADA, CHITRA TALKIES ROAD, PUNE 411006 PAN: ADKPA3100E APPELLANT VS. ACIT, CENTRAL CIRCLE1(1), PUNE RESPONDENT ITA NO.802/PN/2007 (BLOCK PERIOD 1997-98 TO 2003-04) ACIT, CENTRAL CIRCLE1(1), PUNE APPELLANT VS. SHRI MAHENDRA BARUMAL AGARWAL 141/E, SHIV BHAVAN, YERWADA, CHITRA TALKIES ROAD, PUNE 411006 PAN: ADKPA3100E RESPONDENT ASSESSEE BY : SHRI P.D. KUDVA DEPARTMENT BY : MRS. M.S. VERMA DATE OF HEARING : 19.06.2014 DATE OF PRONOUNCEMENT : 30.06.2014 ORDER PER SHAILENDRA KUMAR YADAV : THE ABOVE CROSS APPEALS PERTAIN TO THE SAME ASSESSE E ON SIMILAR GROUND AGAINST THE ORDER OF THE COMMISSIONE R OF INCOME TAX(APPEALS)-I, [(IN SHORT CIT(A)] PUNE FOR BLOCK P ERIOD 1997-98 TO 2003-04. ITA NOS.769 & 802 /PN/2007 SHRI MAHENDRA BARUMAL AGARWAL 2. IN ITA NO.769/PN/2007, THE ASSESSEE HAS FILED TH E APPEAL ON THE FOLLOWING GROUNDS. 1. THE CIT(A) ERRED IN SUSTAINING ADDITION OF RS.9,60, 000/- COMPRISING OF FDS TOTALLING TO RS. 5 LACS AND ALLEG ED ACCRUED INTEREST THEREON RS.4,60,000 IN THE HANDS O F THE APPELLANT ON PROTECTIVE BASIS, BEING THE ADDITION M ADE BY THE AO IN ASSESSMENT ON ACCOUNT OF FDR NOS.10264 TO 10313 (50 NOS.X RS. 10000 EACH) STANDING IN VARIOUS NAMES IN AGRASEN CO-OP; BANK LTD. WITH MATURITY DAT E OF 09.02.2003 AND AGAINST WHICH LOAN OF RS. 764880 WAS SANCTIONED BY THE BANK & CREDITED TO SB A/C. NO 802 5 OF SHRI VIPUL P. SHINDE ON 11.10.2002 AND WITHDRAWN IN CASH ON THE SAME DAY. THE APPELLANT PLEADS THAT THE SUBJ ECT FDRS & SB A/C. NO. 8025 DO NOT BELONG TO HIM AND WI TH NO EVIDENCE FOUND IN THE SEARCH RELATING HIM TO THE SUBJECT FDRS & CASH WITHDRAWAL FROM SB A/C. 8025 NOR TRACED TO HIM IN THE BLOCK ASSESSMENT PROCEEDINGS, THE ADDITI ON MADE BY THE AO IS NOT VALID. 2. THE CIT(A) ERRED IN SUSTAINING ADDITION OF RS.4,29, 866/- ON ACCOUNT OF JEWELLERY FOUND IN THE SEARCH AT THE RES IDENCE OF THE APPELLANT. THE APPELLANT PLEADS THAT THE JEWELL ERY FOUND AT HIS RESIDENCE WAS A DISCLOSED ASSET DECLARED IN HIS/FAMILY MEMBERS TAX RETURNS AND THE ADDITION MAD E IN THE APPELLANT'S HANDS IS NOT JUSTIFIED. 3. WITHOUT PREJUDICE, THE APPELLANT PLEADS THAT IN COM PUTING UNDISCLOSED INCOME, CONSIDERING EFFECT OF TELESCOPI NG THE JEWELLERY VALUED AT RS.4,29,866/- IS EXPLAINED OUT OF CASH WITHDRAWAL OF RS.20,57,561/- ON ENCASHMENT OF FDRS WHICH IS ASSESSED AS INCOME. THE APPELLANT PLEADS THAT THE ADDITION MADE BY THE AO RESULTS IN DUPLICATION OF UNDISCLOSED INCOME. 4. THE APPELLANT PLEADS FOR DIRECTIONS DELETING THE AD DITIONS MADE BY THE A.O. AND CRAVES LEAVE TO ADD TO, AMEND, OR WITHDRAW ANY OR ALL GROUNDS OF APPEAL. 2.1 APART FROM THIS, THE ASSESSEE HAS MADE A PRAYER FOR ADMISSION OF AN ADDITIONAL GROUND IN THIS APPEAL WH ICH READS AS UNDER: THE UNDERSIGNED CRAVES LEAVE TO RAISE THE FOLLOWIN G ADDITIONAL GROUND AFTER GROUND NO.4 IN THE ORIGINAL GROUNDS OF APPEAL AS GROUND NO.5. ITA NOS.769 & 802 /PN/2007 SHRI MAHENDRA BARUMAL AGARWAL ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, FOLLOWING SEARCH ACTION CONDUCTED AND CONCLUDED ON THE ASSESSEE ON 05.09.2002. THE ASST ORDER UNDER SECTIO N 158BC(C) WAS REQUIRED TO BE PASSED ON OR BEFORE 30.09.2004. THE APPELLANT PLEADS THAT THE ASST ORD ER UNDER SECTION 158BC(C) DATED 29.11.2004 PASSED BY T HE A.O. IN HIS CASE IS BARRED BY LIMITATION AND IS NOT VALID THE ABOVE GROUND IS SOLELY LEGAL IN NATURE AND REMA INED TO BE RAISED DUE TO OVERSIGHT. THE SAME MAY BE ADMITTED AND ADJUDICATED UPON IN THE INTEREST OF JUSTICE. 3. IN THIS REGARD, THE LEARNED AUTHORIZED REPRESENT ATIVE HAS POINTED OUT THAT THE SEARCH ACTION CONDUCTED AND CO NCLUDED ON THE ASSESSEE ON 05.09.2002 FOR WHICH, HE DRAWN OUR ATTE NTION TO PAGE 3 & 4 OF THE PAPER BOOK, HAVING PANCHANAMA. ACCORD ING TO WHICH, SEARCH ACTION WAS CONDUCTED ON 05.09.2002 AND THE A SSESSMENT ORDER U/S.158BC(C) OF THE ACT WAS REQUIRED TO BE PA SSED ON OR BEFORE 30.09.2004. THE ASSESSEE HAS PLEADED THAT T HE ASSESSMENT U/S.158BC(C) OF THE ACT DT. 29.11.2004 PASSED BY TH E ASSESSING OFFICER IS BARRED BY LIMITATION AND NOT VALID. IT IS BEING A LEGAL ISSUE, WE ADMIT THIS ADDITIONAL GROUND AND ADJUDICA TE THE SAME AS PER FACT AND LAW. 4. THE LEARNED AUTHORIZED REPRESENTATIVE HAS POINTE D OUT THAT A SIMILAR ISSUE AROSE IN GROUP CASES OF RAMKUMAR B. A GARWAL IN ITA NO.49/PN/2007 FOR BLOCK PERIOD 1997-98 TO 2003-04 A ND OTHERS, WHEREIN A SIMILAR ISSUE AS RAISED IN ITA NO.769/PN/ 2007 WAS RAISED AND HAVING CONSIDERED THE SAME, THE ITAT, PU NE B BENCH HELD AS UNDER: 9. CONSIDERING THE FACTS OF THE ASSESSEES CASE, M ORE PARTICULARLY AFTER CAREFULLY EXAMINING THE LAST PAN CHNAMA DATED 1.11.2002, IN THE BACKDROPS OF LEGAL PRINCIPL ES LAID DOWN IN THE ABOVE TWO DECISIONS, WE HAVE TO HOLD TH AT THE PANCHNAMA DATED 1.11.2002 CANNOT BE EXTENDED TIME TO THE A.O FOR FURTHER 2 MONTHS WHEN IN FACT, IN THE CASE OF THESE ASSESSEES, THE SEARCH WAS FINALLY CONCLUDED ON 6.9. 2002. WE, THEREFORE, ALLOW THE GROUND TAKEN BY THE ASSESSEE A ND HOLD ITA NOS.769 & 802 /PN/2007 SHRI MAHENDRA BARUMAL AGARWAL THAT THE ASSESSMENTS FRAMED BY THE A.O ARE TIME BAR RED AND BAD IN LAW. WE, ACCORDINGLY, CANCEL THE ASSESSMENT S FRAMED BY THE A.O U/S.158BC(C) IN CASES OF ALL THE THREE A SSESSEES. 5. IN VIEW OF ABOVE, WE FIND THAT THE SEARCH WAS CO NCLUDED ON 05.09.2002 AND THE ASSESSMENT ORDER U/S.158BC(C) WA S REQUIRED TO BE PASSED ON OR BEFORE 30.09.2004 AND THE SAME I S BARRED BY LIMITATION. FOLLOWING THE DECISION IN THE GROUP CA SE OF RAMKUMAR B. AGARWAL (SUPRA), WHEREIN ON SIMILAR FACTS THIS I SSUE WAS DECIDED IN FAVOUR OF ASSESSEE. FOLLOWING THE SAME REASONIN G, WE HOLD THAT THE PANCHNAMA DT. 02.11.2002 CANNOT EXTEND THE TIME TO THE ASSESSING OFFICER FOR FURTHER TWO MONTHS WHEN IN FA CT IN THE CASE OF THESE CASES SEARCH WAS FINALLY CONCLUDED ON 05.09.2 002. ACCORDINGLY, WE CANCEL THE ASSESSMENT ORDER FRAMED BY THE ASSESSING OFFICER U/S.158BC(C). SINCE, WE HAVE ANN ULLED THE ASSESSMENT ORDER ON PRELIMINARY GROUND, WE ARE REFR AINING FROM COMMENTING ON THE MERIT OF THE ISSUE AT HAND. ACCO RDINGLY, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. 6. THE REVENUE HAS ALSO FILED CROSS APPEAL VIDE ITA NO.802/PN/2007. SINCE WE HAVE ANNULLED THE ASSESSM ENT FOR THE BLOCK PERIOD UNDER CONSIDERATION AS DISCUSSED ABOVE , THE ISSUE RAISED IN REVENUES APPEAL GOES INFRUCTUOUS. SO, T HE SAME NEEDS NO ADJUDICATION AT OUR HAND. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED AND THE APPEAL FILED BY THE REVENUE IS BEING DISMISSED AS INFRUCTUOUS. PRONOUNCED IN THE OPEN COURT ON THIS THE DAY OF 30 TH JUNE, 2014. SD/- SD/- (G.S. PANNU) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED THE 30 TH JUNE, 2014 GCVSR ITA NOS.769 & 802 /PN/2007 SHRI MAHENDRA BARUMAL AGARWAL COPY TO:- 1) ASSESSEE 2) THE DEPARTMENT 3) THE CIT(A)-I, PUNE 4) THE CIT-I, PUNE 5) THE DR, A BENCH, I.T.A.T., PUNE. 6) GUARD FILE BY ORDER //TRUE COPY// SENIOR PRIVATE SECRETARY, ITAT, PUNE.