RATINDER PAL SINGH, SRINAGAR V. ACIT, CIRCLE III SRINAGAR

ITA 98/ASR/2024

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 4981 (ITAT-AMRITSAR)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 02-07-2024
• Assessment Year: 2012-2013
• Appeal Filed On: 28-02-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AVINASH MISHRA
• Section: 147; 143(3); 250; 69A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. UDAYAN DAS GUPTA, JUDICIAL MEMBER I.T.A. Nos.97 & 98/Asr/2024 Assessment Year: 2011-12 to 2012-13 Sh. Ratinder Pal Sigh, H. No. Opp HS Oberoi Chopra House Near GQ Pardesi MLC Chopra Lane Shivpora, J & K. [PAN: AENPA7618F] (Appellant) Vs. ACIT, Circle-III, Srinagar. (Respondent) Appellant by Sh. Avinash Mishra and Sh.Rahul, CA Respondent by Sh. Ravinder Mittal, Sr. DR Date of Hearing 03.07.2024 Date of Pronouncement 14.08.2024 ORDER Per: Udayan Das Gupta, JM: These two appeals are filed by the assessee against the orders of the CIT ( A ) NFAC passed u/s 250 of the Act 61 , dated 25/01/2024, for both years , which in turn has arisen out of the orders of the ACIT, Circle – 3, Srinagar , dated 13/12/2018 and 07/12/2019 , for Asst years 2011-12 and 2012-13 , respectively. I.T.A. Nos.97 & 98/Asr/2024 Assessment Year: 2011-12 to 2012-13 2 2. The grounds of appeal taken by the assessee for A.Y. 2011-12 are as below: “1 That on the facts and circumstances of the case the order of CIT(A)/NFAC is bad in law as well as on facts on facts 2 That on the facts and circumstances of the case Ld CIT(A)/NFAC has erred in affirming the jurisdiction of AO under section 148. 3 That on the facts and circumstances of the case Ld. CIT(A)/NFAC has erred in ignoring that the AO has not followed the mandate of section 147 to 151 of the Income Tax Act, 1961. 4 That on the facts and circumstances of the case Ld. CIT(A)/NFAC instead of quashing the entire proceedings being void-ab-initio has erred in directing the AO to commence reassessment after the order of Customs department. 5 That on the facts and circumstances of the case Ld CIT(A)/NFAC failed to appreciate, that the entire proceedings of 148 was triggered on the basis of illegal show cause of DRI, and hence not tenable in law. 6 Without prejudice to the above the CIT(A)/NFAC, while directing the AO to commence reassessment, has erred in overlooking the limitation provided u/s 148 r.w. 149 7 The Appellant craves the leave to add/modify/alter any ground during the course of hearing/pendency of appeal.” I.T.A. Nos.97 & 98/Asr/2024 Assessment Year: 2011-12 to 2012-13 3 3. The grounds of appeal taken by the assessee for the A.Y. 2012-13 are as below: “1 That on the facts and circumstances of the case the order of CIT(A)/NFAC is bad in law as well as on facts on facts 2 That on the facts and circumstances of the case Ld CIT(A)/NFAC has erred in affirming the jurisdiction of AO under section 148. 3 That on the facts and circumstances of the case Ld. CIT(A)/NFAC has erred in ignoring that the AO has not followed the mandate of section 147 to 151 of the Income Tax Act, 1961. 4 That on the facts and circumstances of the case Ld. CIT(A)/NFAC instead of quashing the entire proceedings being void-ab-initio has erred in directing the AO to commence reassessment after the order of Customs department. 5 That on the facts and circumstances of the case Ld CIT(A)/NFAC failed to appreciate that the entire proceedings of 148 was triggered on the basis of illegal show cause of DRI, and hence not tenable in law. 6 Without prejudice to the above the CIT(A)/NFAC, while directing the AO to commence reassessment, has erred in overlooking the limitation provided u/s 148 r.w. 149 I.T.A. Nos.97 & 98/Asr/2024 Assessment Year: 2011-12 to 2012-13 4 7 On the facts and circumstances of the case, the order of CIT(A)/NFAC is a nullity as the same was passed mentioning incorrect dates/observation/facts in the order. 8. The Appellant craves the leave to add/modify/alter any ground during the course of hearing/pendency of appeal.” 4. The facts of the case and the grounds of appeal, are identical for both the years and as such for the sake of convenience both are being disposed off by this consolidated order. 4.1 The brief facts are that the assessee is engaged in the business of furniture and has been regularly assessed to tax and has been regularly filing his returns before jurisdictional AO. 4.2 On the basis of information received from the office of Directorate `of Revenue Intelligence ( Hqrs ) , DRI , the assessee is alleged to have received an amount of Rs.60 lakhs from various parties which has resulted out of some alleged fraudulent imports, under the Customs Act ‘62 , which is not reflected in the books of accounts of the assessee , and as such the AO initiated proceedings u/s 148 of the Act 61, which has resulted in an addition of Rs.60,00,000/- u/s 69A of the Act 61, to the returned income of Rs.42,86,215/-, as per reasons contained in the assessment order, which has been subjected to rates u/s 115BBE Vide order dated 13/12/2018 passed u/s 147/143(3) of the Act 61. I.T.A. Nos.97 & 98/Asr/2024 Assessment Year: 2011-12 to 2012-13 5 5. The matter was carried in appeal before the first appellate authority , and the Ld CIT ( A ) NFAC , has quashed the assessment u/s 148 of the Act , on the ground that the very show cause notice issued by the DRI , has been stayed by the Principal Commissioner of Customs and since the said SCN which was the basis for commencement of the 148 proceedings , is stayed till further orders , there are no reason to presume any undeclared or suppressed imports by the AO which may result in escapement of income . 6. The observation of the Ld. CIT (A) is as follows: “The proceedings initiated by the AO u/s 148 are premature and any suppression of imports and consequent sale will be determined only by an order of the authority holding Jurisdiction in the Department of Customs and not the show cause notice of the DRI. In view of the above, the additions made by the AO u/s 69A r.w.s. 115BE is hereby deleted. However, the AO is also further directed to obtain all the relevant details of the proceedings before the Department of Customs and take all necessary actions as per Law. These grounds are partly allowed.” 7. Now the assessee is in appeal before the tribunal on the grounds contained in the memo of appeal in Form 36. I.T.A. Nos.97 & 98/Asr/2024 Assessment Year: 2011-12 to 2012-13 6 8. The argument of the Ld AR of the assessee is that the Ld CIT ( A ) , was not justified in giving a direction to the AO to obtain all the relevant details of the proceedings before the Department of Customs and take all necessary actions as per law. 9. The ld. DR argued that in the instant case the proceedings u/s 147/143(3) dated 13.12.2018 has been quashed by the first appellate authority vide his order dated 25.01.2024. The department has not filed any appeal before the Tribunal and it is the assessee who has filed this appeal on the grounds contained in the memorandum of appeal. 10. It is seen that the first 5 grounds relates to issue u/s 148 and since the entire assessment proceeding has been quashed by the ld. CIT(A) all these grounds are infructuous and there is nothing against to argue or argue in favour of the said grounds because the grounds are infructuous. 10.1 Regarding ground no. 6, he submits that the powers of the Commissioner’s appeal are co-terminus with the power of the AO and the CIT(A) can correct any error or correct any wrong, he can do what the AO can do and also direct him to do what he has failed to do. 10.2 He further submits that the first appellate authority has got the power to give a direction to the AO for gathering of information and collection of details. I.T.A. Nos.97 & 98/Asr/2024 Assessment Year: 2011-12 to 2012-13 7 10.3 As such, he prayed that on the facts of the case, the assessee is not prejudiced and as such, the appeal of the assessee should be treated as infructuous. 11. We have heard both the parties and considered the material available on record. We are of the view, that the entire assessment proceedings initiated by the AO u/s 148 / 147 has been quashed and the addition made by the AO has been deleted, in first appeal by the ld. CIT(A) vide order dated 25/01/2024. 11.1 As such, there cannot be grievance of the assessee and the assessee is also not prejudiced. However, we are of opinion that when the ld. CIT(A) being the first appellate authority has already deleted the additions and considered the proceedings, as premature, as such any further comments regarding obtaining of relevant details from the department of customs are unnecessary because the said direction has no bearing on the outcome of the current proceedings, which is already concluded. As such discussions on the grounds contained in the Memo of appeal in Form 36, becomes purely academic, on the face of such concluded proceedings. ITA No. 98/Asr/2024 A.Y. 2012-13 12. The facts in this appeal are, mutatis mutandis, exactly similar to those in ITA I.T.A. Nos.97 & 98/Asr/2024 Assessment Year: 2011-12 to 2012-13 8 No. 97/Asr/2024, where the addition u/s 69A is Rs.1,39,25,000/- taxed at rates applicable u/s 115BBE, vide order dated 17/12/2019 passed u/s 147 r.w.s. 143(3) of the Act 1961. Therefore, our above observations in ITA No. 97/Asr/2024 are squarely applicable to ITA No.98/Asr/2024. 13. In the result, both the appeals are allowed for statistical purposes. Order pronounced in the open court on 14.08.2024 Sd/- Sd/- (Dr. M. L. Meena) (Udayan Das Gupta) Accountant Member Judicial Member AKV Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T. True Copy By Order