ACIT CEN CIR 21, MUMBAI V. TINA R. BINDRA, MUMBAI

ITA 897/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75492 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 05-02-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 09-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAJESH SANGHVI IZRFKHZ DH LS
• Keywords: Opportunity of being heard; Retrospective amendment
• Section: 143(3); 153A; 132

Judgement Text

- 1 - VK;DJ VIHYH; VF/KDJ.K BZ U;K;IHB EQACBZ ESAA IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBA I JH ,U JH ,U JH ,U JH ,U- -- - DS DSDS DS- -- - LSUH] YS[KK LNL; ,OA JH LSUH] YS[KK LNL; ,OA JH LSUH] YS[KK LNL; ,OA JH LSUH] YS[KK LNL; ,OA JH VFER 'KQDYK VFER 'KQDYK VFER 'KQDYK VFER 'KQDYK] U;KF;D LNL; DS LE{K ] U;KF;D LNL; DS LE{K ] U;KF;D LNL; DS LE{K ] U;KF;D LNL; DS LE{K BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER VK;DJ VIHY LA[;K /ITA NO. 897/MUM/2012 FU/KKZJ.K O'KZ @ ASSESSMENT YEAR 2004-05) VK;DJ VIHY LA[;K /ITA NO. 898/MUM/2012 FU/KKZJ.K O'KZ @ ASSESSMENT YEAR 2005-06) VK;DJ VIHY LA[;K /ITA NO. 899/MUM/2012 FU/KKZJ.K O'KZ @ ASSESSMENT YEAR 2006-07) ACIT CEN. CIR. 21 ROOM NO. 404, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020. CUKE@ VS. MRS. TINA R. BINDRA, A/71, COZY HOME 251, PALI HILL, BANDRA (WEST) MUMBAI 400 050. PAN: - AEJPB3288C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT IZR;K{KSI /CO NO. 197/MUM/2013 ARISING OUT OF ITA 897/MUM/2012 FU/KKZJ.K O'KZ @ ASSESSMENT YEAR 2004-05) IZR;K{KSI /CO NO. 198/MUM/2013 ARISING OUT OF ITA 898/MUM/2012 FU/KKZJ.K O'KZ @ ASSESSMENT YEAR 2005-06) IZR;K{KSI /CO NO. 199/MUM/2013 ARISING OUT OF ITA 899/MUM/2012 FU/KKZJ.K O'KZ @ ASSESSMENT YEAR 2006-07) MRS. TINA R. BINDRA, R. SANGHVI & CO, 104, RIZVI CHAMBERS-2 JAIN MANDIR MARG, HILL ROAD, BANDRA (WEST), MUMBAI - 50 CUKE@ VS. ACIT CEN. CIR. 21 ROOM NO. 404, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020. PAN: - AEJPB3288C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VIHYKFKHZ DH VKSJ LS @ ASSESSEE BY SHRI RAJESH SANGHVI IZR;FKHZ DH VKSJ LS @ REVENUE BY SHRI S.D. SRIVASTAVA VKNS'K@ VKNS'K@ VKNS'K@ VKNS'K@ ORDER PER N.K. SAINI, AM. THE APPEALS FILED BY THE DEPARTMENT AND THE CROSS OBJE CTION ARISING OUT OF THESE APPEALS ARE DIRECTED AGAINST THE SEPARATE ORDERS EACH DATED 11/11/2011 OF CIT(A)-39, MUMBAI. THE ISSUE INVOLVED IN THESE APPEALS AND CROS S OBJECTIONS ARE SIMILAR, SO THESE LQUOKBZ DH RKJH[K@ DATE OF HEARING 05-02-2014 ?KKS'K.KK DH RKJH[K@ DATE OF PRONOUNCEMENT 05-02-2014 - 2 - ARE BEING DISPOSED OFF BY THIS SINGLE CONSOLIDATED O RDER FOR THE SAKE OF CONVENIENCE. IN THE DEPARTMENTAL APPEAL, THE COMMON ISSUE RAISED REA DS AS UNDER:- 1 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) ERRED IN TREATING THAT THE ASSESSMENT MADE BY THE AO IS BAD IN LAW AN D INVALID AND DIRECTING THE AO TO DELETE THE ADDITIONS MADE IN THE ASSESSMENT ORDER. 2. THE FACTS IN BRIEF ARE THAT A SEARCH & SEIZURE OPE RATION WAS CONDUCTED U/S 132 OF THE INCOME TAX ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT) ON 5.5.2007 AT THE RESIDENTIAL/BUSINESS PREMISES OF THE BINDRA GROUP OF CASES. THEREAFTER THE NOTICE U/S 153A WAS ISSUED AND THE ASSESSEE FILED THE RETURN OF INCOME IN RESPONSE TO THE SAID NOTICE. THE AO FRAMED THE ASSESSMENT U/S 143(3) R.W.S 153A OF THE ACT BY MAKING CERTAIN ADDITIONS. 3. AGAINST THE SAID ASSESSMENT ORDER THE ASSESSEE PREF ERRED APPEALS BEFORE LD. CIT(A), WHO VIDE IMPUGNED ORDERS ALLOWED THE APPEAL OF THE ASSESSEE BY FOLLOWING THE JUDGMENT OF HONBLE HIGH COURT OF ALLAHABAD IN THE CA SE OF THE CIT(A) VS. VANDANA VERMA 227 CTR 388 (ALL)., WHEREIN IT WAS HELD THAT WHE N A WARRANT WAS ISSUED IN JOINT NAME, THE ASSESSMENT COULD NOT BE MADE IN AN INDIVIDU AL CAPCITY. HOWEVER THE LD. CIT(A) HAS NOT ADJUDICTED THE ISSUES ON MERIT. AGAINS T THE SAID ACTION OF THE LD. CIT(A), THE DEPARTMENT IS IN APPEAL. 4. DURING THE COURSE OF HEARING THE LD. CIT (DR) SUB MITTED THAT THE LD. CIT(A) HAS NOT DECIDED THE APPEAL OF THE ASSESSE ON MERIT AND HAD SIMPLY ALLOWED THE APPEALS ON LEGAL GROUND. THEREFORE, THE MATTER MAY BE SENT BACK TO THE LD. CIT(A). HE ALSO STATED THAT AS PER THE PROVISONS OF SECTION 292CC OF IT ACT, I NSERTED BY FINANCE ACT 2012 WITH RETROSPECTIVE EFFECT FROM 1.04.1976, NOW IT IS NOT NECE SSARY TO ISSUE AUTHORIZATION U/S 132 TO MAKE A REQUISITION U/S 132A OF THE INCOME TAX A CT, SEPARATELY IN THE NAME OF EACH PERSON. 5. IN HIS RIVAL SUBMISSIONS THE LD. COUNSEL FOR THE A SSESSEE ALSO DID NOT OBJECT IF THE MATTER IS SENT BACK TO THE LD. CIT(A) TO BE DECIDED ON ME RIT HE ALSO GAVE IN WRITING AS UNDER: 1. WE ARE ENCLOSING HEREWITH A COPY OF CIT(A) ORDER D ATED 14/02/2011, COPY OF APPEAL MEMO (FORM 36) FILED BY THE DEPARTMENT & COP OF FOR M 36A (CROSS OBJECTION) IN THE CASE OF M/S LITTLE DEVELOPERS FOR AY 04-05, IN WHIC H CASE ALL THE FACTUAL ISSUES OF MRS. TINA BINDRA (APPELLANT HEREIN) HAS BEEN DISCLOSED & DECIDED UPON IN THE FAVOUR OF THE ASSESSEE. 2. THE DEPARTMENT APPEAL OF M/S LITTLE DEVELOPERS (ITA NO. 3813/MUM/2011, D-BENCH) IS SCHEDULED FOR 10/4/2014 BEFORE D-BENCH. 3. IN THE FACTS & CIRCUMSTANCES IT IS HUMBLY PRAYED TH AT THE CAPTIONED APPEALS OF MRS. TINA BINDRA BE KINDLY RESTRICTED TO THE FILE OF LD CIT(A)-39 TO DECIDE ON FACTUAL ISSUES. - 3 - 6. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PAR TIES AND GONE THROUGH THE MATERIALS ON RECORD. IN THE PRESENT CASE IT IS AN ADMI TTED FACT THAT LD. CIT(A) HAS NOT ADJUDICATED THE APPEALS OF THE ASSESSEE ON MERIT AND BO TH THE PARTIES AGREED THAT THE MATTER BE SENT BACK TO THE LD. CIT(A) TO BE DECIDED ON MERIT. WE, THEREFORE, SET ASIDE THE APPEALS OF THE DEPARTMENT TO THE FILE OF LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABL E OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. AS REGARDS THE CROSS OBJECTIONS FILED BY THE ASSES SEE WHICH ARE TIME BARRED BY 219 DAYS, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THA T HE HAS THE INSTRUCTION NOT TO PRESS THESE CROSS APPEALS AND GAVE IN WRITING AS UN DER:- CO ( FOR 04-05 TO 06-07) WITHDRAWN IN VIEW OF REF ERENCE OF CIT(A) 8. IN VIEW OF THE ABOVE, THE CROSS OBJECTIONS FILED B Y THE ASSESSE ARE DISMISSED AS WITHDRAWN. 9. IN THE RESULT APPEALS OF THE DEPARTMENT AND CROS S OBJECTIONS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 5/02/201 4 SD/- SD/- (AMIT SHUKLA) (N.K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED 05 /02/2014 SKS SR. P.S COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, E BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI