ITO WD-2(5), Jamshedpur V. Sri Naresh Kumar, Jamshedpur

ITA 86/RAN/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 9658 (ITAT-RANCHI)
• Duration Of Justice: 1 year(s) 11 month(s) 1 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 05-04-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 04-05-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: CHANDAN DAS J
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RANCHI BENCH, RANCHI BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 86 / RAN / 2017 ASSESSMENT YEAR :2011-12 INCOME TAX OFFICER, WARD-2(5), 2, BAGMATI ROAD, NORTHERN TOWN, JAMSHEDPUR-831001 V/S . SRI NARESH KUMAR, Q. NO.21, ROAD, NO.2, GURUDWARA BASTI, BISTUPUR, JAMSHEDPUR, [ PAN NO.ACLPK 8400D ] /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI CHANDAN DAS, JCIT-DR /BY RESPONDENT NONE /DATE OF HEARING 09-01-2019 /DATE OF PRONOUNCEMENT 15-02-2019 / O R D E R PER BENCH:- THIS REVENUES APPEAL FOR ASSESSMENT YEAR 2011-12 ARISES AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)-JAMSHEDPURS O RDER DATED 15.02.2017 PASSED IN CASE NO.10/JSR/2014-15 INVOLVI NG PROCEEDINGS U/S 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE A CT. CASE CALLED TWICE. NONE APPEARS AT THE ASSESSEES B EHEST DESPITE SERVICE OF NOTICE DATED 31.12.2018 THROUGH RPAD MOD E. IT IS ACCORDINGLY PROCEEDED EX PARTE . 2. WE NOTICE AT THE OUTSET THAT THE CIT(A)S ORDER HAS DELETED THE PROTECTIVE ADDITION OF RS.2,58,75,464/- AS FOLLOWS: 4.3 I HAVE GONE THROUGH THE ORDER OF THE LEARNED AO AS WELL AS THE WRITTEN SUBMISSION MADE BY THE APPELLANT. THE ASSESSEE IS N OT CORRECT TO SAY THAT ADDITION OF RS.2,60,60,574/- HAS BEEN MADE. THE AMOUNT INCLUDES THE RETURN OF INCOME OF RS.1,85,110/- ALSO. THUS ADDITION MADE IS ONLY RS.2 ,58,75,464/- WHICH WILL BE ITA NO.86/RAN/2017 A.Y. 2011-12 ITO WD-2(5) JSR VS. SRI NARESH KUMAR PAGE 2 CONSIDER HERE. IT IS FACT MENTIONED HEREINABOVE THA T FROM THE ASSESSING OFFICER'S ORDER ITSELF THE AO DID NOT CONCLUDED THAT THE IMPO UNDED BOOKS BELONGS TO THE ASSESSEE PARTICULARLY WHEN THE ASSESSEE DENIED HAVI NG THE BOOKS PERTAINING TO HIM AND RAJESH KUMAR WHOSE BOOKS WERE IMPOUNDED ACCEPTI NG THE SAME. IT APPEARS THAT THE AUTHORIZATION WAS NOT EXECUTED AT PROPER P LACES AND IF THE PLACE IS PROPER THE AUTHORIZATION SHOULD HAVE BEEN IN THE NAME OF RAJES H KUMAR. THE ASSESSEE PRODUCES THE COPY OF ORDER ETC., PASSED IN THE CASE OF SHRI RAJESH KUMAR WHERE THE IMPOUNDED BOOKS HAVE BEEN CONSIDER DURING ASSESSMEN T PROCEEDINGS AND THE AO HAS MADE ADDITION THEREIN ALSO. IT IS THE ACCEPTED PRINCIPLE THE SAME INCOME CANNOT BE TAXED TWICE. ACCORDINGLY, TAKING THE INCOME IN T HE HANDS OF NARESH KUMAR AGAIN IN THE HAND OF RAJESH KUMAR IS NOT CORRECT. MOREOVE R THE AO DID NOT SUBMIT ANY REMAND REPORT DESPITE CALLED FOR ON 17.12.2015 AND AGAIN ON 29.02.2016, I ALSO FIND THAT ONCE THE ASSESSEE WHOSE BOOKS OF ACCOUNT WAS I MPOUNDED OR THE REVENUE CANNOT ASCERTAINED IT AS THAT OF NARESH KUMAR, THE ASSESSEE, ANY ADDITION MADE IS NOT PROPER, THEREFORE ADDITION MADE BY THE AO FOR R S.2,58,75,464/- IS HEREBY DELETED. IT IS THEREFORE SUFFICIENTLY CLEAR THAT THE CIT(A) HAS TAKEN NOTE OF THE SUBSTANTIVE ADDITION MADE IN THE CASE OF THE SEARCH ED ASSESSEE SHRI RAJESH KUMAR. WE HOLD IN THESE PECULIAR FACTS AND CIRCUMST ANCES THAT THE SAME TAKES CARE OF THE IMPUGNED PROTECTIVE ADDITION AS W ELL. WE ALSO MAKE IT CLEAR THAT THERE IS NO MATERIAL BEFORE US INDICATING THE SAID SUBSTANTIVE ADDITION IN CASE OF SEARCHED ASSESSEE NOT TO HAVE ATTAINED NOT FINALITY ON SUBSTANTIVE BASIS. WE THUS REJECT REVENUES INSTANT SOLE SUBSTA NTIVE GRIEVANCE ON THIS COUNT ALONE. 3. THIS REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN ACCORDANCE WITH RULE 34(4) OF THE ITAT RULES BY PUTTING ON NOTICE BOARD ON 15/02/2019 SD/- SD/- ( ) ( ) (DR. A.L. SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) RANCHI, *DKP SR.P.S - 15 / 02 /2019 RANCHI / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-ITO WARD-2(5), 2, BAGMATI ROAD,NORTHERN TO WN, JAMSHEDPUR-831001 2. /RESPONDENT-SRI NARESH KUMAR, Q. NO.21, ROAD NO.2, GU RUDWAREA BASTI, JAMSHEDPUR-831001 3. , / / CONCERNED CIT RANCHI 4. /- / CIT (A) RANCHI 5. 2 55,, ,, / DR, ITAT, RANCHI 6. 9 / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR.PS, ITAT , RANCHI