ACIT CEN CIR 13, MUMBAI V. GIRIRAJ DEVELOPERS, NAVI MUMBAI

ITA 952/MUM/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3613 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 17-05-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 10-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO. 952/MUM/2012 (ASSESSMENT YEAR : 2007-08) THE ACIT, CEN. CIR.13, OLD CGO ANNEXE BUILDING, ROOM NO.1103, 11 TH FLOOR, MAHARSHI KARVE MARG, MUMBAI 400 020 ... APPELLANT VS. M/S. GIRIRAJ DEVELOPERS, PLOT NO.43 A/B, SECTOR -20, KHARGHAR, NAVI MUMBAI 410 210. PAN:AAFFG 4761R .... RESPONDENT APPELLANT BY : SHRI MAURYA PRATAP RESPONDENT BY : SHRI RUSHABH MEHTA DATE OF HEARING : 17/05/2016 DATE OF PRONOUNCEMENT : 17/05/2016 ORDER PER MAHAVIR SINGH, J.M: THIS APPEAL BY REVENUE IS ARISING OUT OF THE ORDE R OF CIT(A)- 37,MUMBAI IN APPEAL NO. CIT(A)-37/IT-29/ACCC-13/11- 12 DATED 4/11/2011. ASSESSMENT WAS FRAMED BY ACIT, CEN. CIR .-13, MUMBAI UNDER SECTION 153C OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT) FOR THE ASSESSMENT YEAR 2007-08 VIDE HIS ORDER DATED 30 /12/2008. 2 ITA NO. 952/MUM/2012 (ASSESSMENT YEAR : 2007-08) 2. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE STAT ED THAT THIS PENALTY LEVIED BY THE ASSESSING OFFICER AND DELET ED BY CIT(A) AGAINST WHICH REVENUE HAS PREFERRED THIS APPEAL, WILL NOT S URVIVE BECAUSE THE TRIBUNAL IN ITA NO.5067/MUM/2009 FOR ASSESSMENT YEA R 2007-08 HAS QUASHED THE ASSESSMENT PROCEEDINGS VIDE ORDER DATED 24/02/2016 VIDE PARA 8.2.5 AS UNDER:- 8.2.5 IN THE CASE ON HAND, IT IS AN ADMITTED FACT R ECORDED IN THE ORDERS OF ASSESSMENT THAT THE INCRIMINATING DOCUMENTS IN THE FORM OF DIARIES WERE FOUND DURING THE SURVEY PROCEEDINGS UNDERTAKEN IN T HE BUSINESS PREMISES OF THE ASSESSEE FIRM. IT IS THEREFORE CLEAR THAT TH E CONCERNED DOCUMENTS/DIARIES DID NOT EMANATE FROM OUT OF SEIZU RES MADE IN THE COURSE OF SEARCH ACTION. IN THIS FACTUAL MATRIX OF THE CASE ON HAND, WE FIND THAT THE ESSENTIAL CONDITION OF SECTION 153C OF TH E ACT IS NOT FULFILLED. FURTHER, THE ASSESSING OFFICER VIDE LETTER DT. 16/1 0/2015 HAS ADMITTED THAT THE SATISFACTION NOTE FOR INITIATING THE PROCEEDING S U/S 143(3) R.W.S.153C OF THE ACT IS NOT AVAILABLE ON RECORD., BUT HAS STA TED THAT IT WAS THE SAME ASSESSING OFFICER FOR INITIATION OF THE PROCEEDINGS U/S 143(3) R.W.S 153C OF THE ACT. THEREFORE, WE FIND THAT THE TWIN CONDITION S (I) THAT THE INCRIMINATING DOCUMENTS SHOULD HAVE BEEN FOUND DURI NG THE COURSE OF SEARCH ACTION UNDER SECTION 132 OF THE ACT AND (II) THAT THE ASSESSING OFFICER SHOULD HAVE RECORDED HIS SATISFACTION ARE N OT FULFILLED IN THIS CASE. FURTHER, THE CBDT, CIRCULAR NO: 24/2015 DT. 31/12/2 015 HAS MADE ITS APPLICABILITY TO PENDING LITIGATION AS WELL. IN VIE W OF THE ABOVE FACTUAL AND LEGAL MATRIX OF THE CASE, WE UPHOLD THE GROUND RAIS ED THAT THE ORDERS OF ASSESSMENTS FOR ASST. YEARS 2006-07 AND 2007-08 PAS SED U/S 143(3) R.W.S. 153C OF THE ACT ARE WITHOUT JURISDICTION. IN SUCH CIRCUMSTANCES, LD. COUNSEL FOR THE ASSESSEE STATED THAT THE PENALTY PROCEEDINGS WILL NOT SURVIVE AND THE APPEAL OF REVENUE DESERVES TO BE DISMISSED ON THIS COUNT ONLY. ON T HE OTHER HAND, LD. SR. D.R. FAIRLY AGREED TO THE DECISION. 3. WE FIND THAT THE QUANTUM ASSESSMENT HAS BEEN QUA SHED BY THE TRIBUNAL IN ITA NO.5067/MUM/2009 VIDE ORDER DATED 2 4/02/2016. 3 ITA NO. 952/MUM/2012 (ASSESSMENT YEAR : 2007-08) SINCE THE QUANTUM ASSESSMENT IS QUASHED, THE PENALT Y WILL NOT SURVIVE. ACCORDINGLY, THE APPEAL OF THE REVENUE IS DISMISSED . 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 17/05/ 20 16. SD/- SD/- (ASHWANI TANEJA) (MAHAVIR SINGH) ACCOUNTNAT MEMBER JUDICIAL M EMBER MUMBAI, DATED 17/05/2016 VM , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT , 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI