Maducon Binapuri J.V., Hyd, Hyderabad V. DCIT, Central Circle-4, Hyd, Hyderabad

ITA 899/HYD/2016

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1469 (ITAT-HYDERABAD)
• Duration Of Justice: 5 year(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 03-06-2021
• Assessment Year: 2001-2002
• Appeal Filed On: 15-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK KARDONU
• Assessee Lawyers: P MURALI MOHANA RAO
• Keywords: Question of law
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH, HYDERABAD. BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER AND SHRI L . P . SAHU, ACCOUNTANT MEMBER (THROUGH VIRTUAL HEARING) ITA NO. 899 /HYD/201 6 (ASSESSMENT YEAR : 20 01 - 02 ) M/S. MADHUCON BINAPURI JV, HYDERABAD. PAN AAAAM 1545P ..APPELLANT. VS. DY. COMMISSIONER OF INCOME TAX , CENTRAL CIRCLE - 4, HYDERABAD. ..RESPONDENT. APPELLANT BY : SHRI P. MURALI MOHANA RAO. RESPONDENT BY : SH RI ASHOK KARDONU (D.R.) DATE OF HEARING : 0 3. 0 6. 2021. DATE OF PRONOUNCEMENT : 02.0 7 .2021. O R D E R PER SHRI S.S. GODARA, J.M. : THIS ASSESSEES APPEAL FOR ASST. YEAR 20 01 - 02 ARISES FROM THE COMMISSIONER OF INCOME TAX (APPEALS) - 9 , HYDERABAD S ORDER DT. 29.02.2016 PASSED IN CASE NO. 0064/ DCIT, CENTRAL CIRCLE - 4/2015 - 16 IN PROCEEDINGS 2 ITA NO. 899/HYD/2016 UNDER SECTION 143(3) R.W.S. 153A OF INCOME TAX ACT, 1961 (THE ACT). HEARD BOTH THE PA RTIES . C ASE FILE PERUSED. 2. THE ASSESSEE HAS PROPOSED THE FOLLOWING SUBSTANTIVE GROUNDS IN THE INSTANT APPEAL : 3 ITA NO. 899/HYD/2016 3. THE ASSESSEE FIRST AND FOREMOST LEGAL ISSUE CHALLENGES VALIDITY OF THE IMPUGNED ASSESSMENT FRAMED U/S. 153A R.W.S. 143(3) OF THE ACT. THE REVENUE HAS SOUGHT TO OPPOSE THE SAME AT THIS STAGE ON THE GROUND THAT IT IS AN ATTEMPT ON THE ASSESSEE'S PART TO ALTER THE ENTIRE TEXTURE OF THE INSTANT CASE. WE FIND NO MERIT IN THE REVENUES FOREGOING TECHNICAL ARGUMENT IN VIEW OF THE FACT THAT THE ASSESSEE'S LEGAL GROUND HEREIN GOES TO THE ROOT OF THE MATTER . THIS TRIBUNAL'S S PECIAL BENCH S DECISION OF ALL CARGO GLOBAL LOGISTICS LTD. VS. DCIT (2012) 137 ITD 287 (ITAT - M UM) (SB) HOLDS THAT HE CAN VERY WELL E NTERTAIN A PURE QUESTION OF LAW AS PER NTPC LTD. VS. CIT 229 ITR 383 (SC); SO AS TO DETERMINE CORRECT TAX LIABILITY OF A TAXPAYER PROVIDED ALL THE RELAV ENT FACTS ARE ALREADY ON RECORD. 3. WE NOW ADVERT TO THE BASIC RELEVANT FACT S QUA VALIDITY OF THE IMPUGNED ASSESSMENT U/S. 153A R.W.S. 143(3) OF THE ACT. IT IS NOT IN DISPUTE THA T THE ASSESSEE HAD FIRST FILED ITS ORIGINAL R ETURN OF I NCOME ON 31.10.2001 WHICH LED TO SECTION 143(3) REGULAR ASSESSMENT FRAMED ON 18.11.2003. THE DEPARTMENT THEREAFTER CARRIED OUT THE IMPUGNED S EARCH 4 ITA NO. 899/HYD/2016 ON 20.10.2005 IN THE CASE OF M/S. MADHUCON GROUP COMPANIES CULMINAT ING IN ASSESSING OFFICERS NOTICE U/S.153A OF THE ACT. THE ASSESSEES RESPONSE TH ERETO SOUGHT TO TREAT THE FOREGOING ORIGINAL RETURN AS THAT FILED IN RESPONSE TO THE LATTER NOTICE. THE ASSESSING OFFICER FRAMED HIS SECTION 143(3) R.W.S. 153A ASSESSMENT DISALLOWING THE TWIN CLAIM OF SURVEY AND BUSINESS PROMOTION EXPENSES OF RS.13,77,2 24 AND RS.25 LAKHS, RESPECTIVELY IN ADDITION TO THE FACT THAT THE LATTER HEAD HAD ALREADY BEEN ADDED IN 143(3) ASSESSMENT ( SUPRA ) . 4. THE CIT(APPEALS) HAS CONFIRMED THE ASSESSING OFFICERS ACTION. 5. WE HAVE GIVEN OUR THOUGHTFUL CONSIDE RATION TO FOREGOING RIVAL PLEADINGS AGAINST AND IN SUPPORT OF CORRECTNESS OF THE IMPUGNED ASSESSMENT U/S.143(3) R.W.S. 153A OF THE ACT. THERE IS HARDLY ANY DISPUTE THAT WE ARE DEALING WITH AN UNABATED ASSESSMENT AS ON THE DATE OF SEARCH 20.10.2005 SINCE REGULAR ASSESSMENT HEREUNDER HAD ALREADY BEEN FRAMED ON 18.11.2003. L EARNED DEPARTMENTAL REPRESENTATIVE FAILS TO DISPUTE THIS ASSESSMENT IN ISSUE AS 5 ITA NO. 899/HYD/2016 WELL AS TWIN ADDITION S ARE NOWHERE BASED ON ANY INCRIMINATING MATERIAL FOUND OR SEIZED DURING THE COURSE OF SEARCH/ SURVEY. AND ALSO THAT THE ASSESSEE HAD ALREADY RECORDED THE SAME IN ITS REGULAR BOOKS OF ACCOUNTS WHICH HAS RESULTED IN LATTER DISALLOWANCE. W E THUS QUOTE CIT VS. KABUL CHAWLA (2016) 380 ITR 573 (DEL); CIT VS. CONTINENTAL WAREHOUSING CORPORATIO N (2015) 374 ITR 645 (BOM) AND CIT VS. SALASAR STOCK BROKING LTD. GA NO.1929/2016 DT.24.8.2016 (CAL) HOLDING THAT AN ASSESSMENT U/S. 153A FRAMED IN ABSENCE OF ANY INCRIMINATING MATERIAL FOUND OR SEIZED DURING THE COURSE OF SURVEY IS NOT V ALID. WE ADOPT THE VERY REASON MUTATIS MUTANDIS HEREIN TO QUASH THE IMPUGNED ASSESSMENT. ORDERED ACCORDINGLY. ALL OTHER PLEADINGS ARE RENDERED INFRUCTUOUS . 6 . THIS ASSESSEE'S APPEAL IS ALLOWED IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON 2ND JU LY , 2021. SD/ - SD/ - (L .P. SAHU) (S.S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DT. 02 .0 7 .2021. 6 ITA NO. 899/HYD/2016 * REDDY GP COPY TO : 1. M/S. MADHUCON BINAPURI J.V., MADHUCON HOUSE, PLOT NO.1129/A, ROAD NO.36, JUBILEE HILLS, HYDERABAD. 2. DCIT, CENTRAL CIRCLE 4, HYDERABAD. 3. PR. C I T - 6 , HYDERABAD. 4. CIT(APPEALS) - 9, HYDERABAD. 5. DR, ITAT, HYDERABAD. 6. GUARD FILE. BY ORDER SR. PVT. SECRETARY, ITAT, HYDERABAD.