Mahesh Kumar Nangalia, Kolkata V. ACIT, Central Circle - XVIII, Kolkata, Kolkata

ITA 78/KOL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100107 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2015
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2002-2003
• Appeal Filed On: 13-01-2012
• Court: TRIBUNAL
• Department Lawyers: UDAY KUMAR S ARDAR CIT LD
• Assessee Lawyers: K M ROY FCA LD
• Section: 132

Judgement Text

IT.A NOS. 78 & 79/KOL/2012- C-AM MAHESH KU MAR NANGALIA 1 IN THE INCME TAX APPELLATE TRIBUNAL, C BENCH, KO LKATA BEFORE : SHRI M. BALAGANESH, ACCOUNTANT MEMBER, AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A NOS. 78 & 79/KOL/2012 A.YS. 2002-03 & 2004-05 MAHESH KUMAR NANGALIA VS. A.C.I.T, C.C-XVIII, KOLKATA PAN: AEYPN 4179F (APPELLANT/ASSESSEE) ( RESPONDENT/DEPARTMENT) FOR THE APPELLANT: SHRI K.M ROY, FCA, LD..A R FOR THE RESPONDENT : SHRI UDAY KUMAR S ARDAR, ADDL.CIT, LD.SR.DR DATE OF HEARING: 12-11-2015 DATE OF PRONOUNCEMENT: 18 -11-2 015 ORDER SHRI M.BALAGANESH, AM THESE APPEALS OF THE ASSESSEE ARISE OUT OF THE ORD ERS OF THE LEARNED CIT(A), CENTRAL-II, KOLKATA IN APPEAL NO. 160/CC-XVIII/CIT( A), C-II/09-10 DATED 16-11-2011 AND APPEAL NO. 162/CC-XVIII/CIT(A), C-II/09-10 DAT ED 16-11-2011 FOR THE ASST YEARS 2002-03 & 2004-05 RESPECTIVELY PASSED AGAINST THE ORDERS OF ASSESSM ENT FRAMED BY THE LEARNED AO U/S. 153A/143(3) OF THE INCOME T AX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. SHRI K.M. ROY, FCA, THE LEARNED AR ARGUED ON BE HALF OF THE ASSESSEE AND SHRI UDAY KUMAR SARDAR, ADDL.CIT, THE LEARNED SR. DR ARGUED ON BEHALF OF THE REVENUE . 3. THE ONLY GROUND TO BE DECIDED IN THIS APPEAL I S THAT WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE ASSESSMENTS FRAMED B Y THE LD.AO ARE WITHIN THE TIME LIMIT PRESCRIBED U/S. 153B OF THE ACT. IT.A NOS. 78 & 79/KOL/2012- C-AM MAHESH KU MAR NANGALIA 2 4. THE BRIEF FACTS OF THIS ISSUE ARE THAT A SEA RCH WAS CONDUCTED U/S. 132 OF THE ACT UNDER WARRANT OF AUTHORIZATION IN THE NAME OF THE A SSESSEE AND THE SAID WARRANT WAS EXECUTED ON 28-03-2007. THIS SEARCH GOT CONCLUDED O N 29-03-2007. ACCORDINGLY, THE ASSESSMENTS OUGHT TO HAVE BEEN FRAMED LATEST BY 31 -12-2008, WHICH IS WITHIN 21 MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE LA ST PANCHANAMA WAS EXECUTED IN TERMS OF SECTION 153B OF THE ACT. 4.1 IT IS SEEN FROM THE RECORDS THAT ANOTHER WARRAN T OF AUTHORIZATION DATED 30-03-2007 WAS ISSUED IN THE JOINT NAME OF MRS. PREM LATA NANG ALIA ( WIFE OF THE ASSESSEE HEREIN) AND SHRI MAHESH KUMAR NANGALIA ( THE ASSESSEE HEREI N). THE SAID WARRANT WAS SIGNED BY SMT. PREM LATA NANGALIA AT THE TIME OF ITS EXECUTIO N ON 17-04-2007. ON 17-04-2007 THE PANCHANAMA WAS DRAWN IN THE NAME OF LOCKER NO.34, UCO BANK, BELVEDRE ROAD BRANCH, ALIPORE, KOLKATA-27. IT WAS ALSO SIGNED BY SMT. PREM LATA NANGALIA (WIFE OF THE ASSESSEE HEREIN). IT IS PERTINENT TO NOTE THAT NAM E OF THE ASSESSEE IS NOT MENTIONED IN THE PANCHANAMA DRAWN ON 17-04-2007. IT IS ALSO SEEN FR OM THE RECORDS THAT THE ASSESSEE HAD NOT SIGNED THE SEARCH WARRANT DATED 30-03-2007 IN THE FORM NO.45. THIS PANCHANAMA WAS DRAWN ON 17-04-2007 IN ORDER TO OPEN THE SAID LOCKER NO.34 OF UCO BANK, BELVEDRE ROAD BRANCH, ALIPORE, KOLKATA-27 AT 3.40 P M AND GOT CONCLUDED ON 4.40 PM ON THAT DAY. ADMITTEDLY, NO SEIZURE WAS EFFECTED F ROM THE SAID LOCKER, WHICH IS EVIDENT FROM THE PANCHANAMA PREPARED ON 17-04-2007 BY THE REVENUE BEFORE US. HENCE, THE ARGUMENTS MADE BY THE LD.AR THAT PANCHANAMA DRAWN ON 17-04-2007 IS IN RESPECT OF SEARCH CONDUCTED IN THE NAME OF ASSESSEES WIFE [S MT. PREM LATA NANGALIA] AND NOT IN THE NAME OF ASSESSEE STANDS APPRECIATED. THE SEARC H PROCEEDINGS IN THE NAME OF THE ASSESSEE GOT CONCLUDED ON 29-03-2007 ITSELF . HENCE , THE LEARNED AR ARGUED THAT THE ASSESSMENT IN THE HANDS OF THE ASSESSEE SHOULD HAVE BEEN FRAMED ON OR BEFORE 31-12- 2008 WHEREAS THE ASSESSMENT IN RESPECT OF THE ASS ESSEE HAS BEEN FRAMED ON 31-12-2009, WHICH IS BARRED BY LIMITATION. IN RESPONSE TO THIS, THE LEARNED DR VEHEMENTLY SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. IT.A NOS. 78 & 79/KOL/2012- C-AM MAHESH KU MAR NANGALIA 3 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND FROM THE RECORDS THAT NEITHER THE SEARCH WARRANT DATED 30-03-2007 NOR THE PANCHANAMA DATED 17-04-2007 WAS SIGNED BY THE ASSES SEE. BOTH THESE DOCUMENTS HAVE BEEN SIGNED ONLY BY ASSESSEES WIFE, SMT. PREM LAT A NANGALIA. ON SPECIFIC QUERY FROM THE BENCH REGARDING THE STATUS OF THE SEARCH ASSESS MENTS IN THE HANDS OF WIFE OF ASSESSEE, THE LD.AR REPLIED THAT ASSESSMENT HAS BEEN FRAMED IN THE HANDS OF THE ASSESSEES WIFE ON 31-12-2009, WHICH GOT UPHELD UPTO ITAT LEVEL AND T HE PROCEEDINGS GOT CONCLUDED IN THE HANDS OF ASSESSEES WIFE, SMT. PREM LATA NANGALIA. 5.1 FROM THE AFORESAID FACTS, IT CAN BE SAFELY CONC LUDED THAT THE ORIGINAL SEARCH CONDUCTED ON 28-03-2007 WAS IN THE HANDS OF THE AS SESSEE, WHICH GOT CONCLUDED ON 29- 03-2007. SUBSEQUENT SEARCH DATED 17-04-2007 IN TH E LOCKER NO.34 OF UCO BANK, BELVEDRE ROAD BRANCH, ALIPORE, KOLKATA-27 WAS COND UCTED TO FRAME SEARCH ASSESSMENT IN THE HANDS OF THE ASSESSEES WIFE ONLY. IN THESE FACTS AND CIRCUMSTANCES, WE HAVE NO HESITATION TO CONCLUDE THAT THE ASSESSMENT FRAMED IN THE HANDS OF THE ASSESSEE ON 31- 12-2009 IS BARRED BY LIMITATION IN TERMS OF SECTION 153B OF THE ACT AND CONSEQUENTLY, THE ASSESSMENTS FRAMED U/S.153A/143(3) OF THE ACT ARE QUASHED. 6. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE ALLOWED. THIS ORDER IS PRONOUNCED IN OPEN COURT ON 18/11 / 2015 SD/- ( S.S VISWANETHRA RAVI, JUDICIAL MEMBER ) SD/- (M. BALAGANESH, ACCOUNTANT MEMBER) DATE 18 /11/2015 IT.A NOS. 78 & 79/KOL/2012- C-AM MAHESH KU MAR NANGALIA 4 COPY OF THE ORDER FORWARDED TO: 1.. THE APPELLANT/ASSESSEE: SHRI MAHESH KUMAR NANG ALIA 10 BELVEDRE ROAD, FLAT-6B, KOLKATA-27. 2 THE RESPONDENT/DEPARTMENT- THE ACIT, CENTRAL CIR CLE-XVIII, PODDAR COURT, 5 TH FL., KOL-1. 3 4.. /THE CIT, / THE CIT(A) 5. DR, KOLKATA BENCH 6. GUARD FILE. TRUE COPY, BY ORDER, ASSTT REGISTRAR ** PRADIP SPS