M/s Heera Moti Agro Industries, Solan V. DCIT, Chandigarh

ITA 997/CHANDI/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5231 (ITAT-CHANDIGARH)
• Duration Of Justice: 7 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 21-02-2017
• Assessment Year: 2004-2005
• Appeal Filed On: 16-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Search and seizure; Document seized; Documents seized
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO.997/CHD/2016 (ASSESSMENT YEAR : 2004-05) M/S HEERA MOTI AGRO INDUSTRIES, VS. THE D.C.I.T., 204, HPSIIDC, INDUSTRIAL AREA, CENTRAL CIRCLE -1, BADDI, DISITT. SOLAN. CHANDIGARH. PAN: AADFH7463B (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUDHIR SEHGAL RESPONDENT BY : SHRI MANJIT SINGH DR DATE OF HEARING : 21.02.2017 DATE OF PRONOUNCEMENT : 18.04.2017 O R D E R PER ANNAPURNA GUPTA, A.M . : THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAIN ST THE ORDER OF CIT(APPEALS)-3, GURGAON DATED 30.6.201 6 RELATING TO ASSESSMENT YEAR 2004-05. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1. THAT THE WORTHY COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN NOT ALLOWING THE APPEAL OF THE APPELLAN T AND, AS SUCH, CONFIRMING PENALTY OF RS.14,00,000/- IMPOSED BY THE ASSESSING OFFICER U/S 271(1)(C). 2. THAT THE WORTHY CIT (A) HAS ERRED IN NOT CONSIDE RING THAT THERE WAS NEITHER ANY CONCEALMENT OF INCOME NOR FURNISHING OF ANY INACCURATE PARTICULARS OF INCOME. 3. THAT THE DETAILED SUBMISSION FILED DURING THE CO URSE OF HEARING BEFORE THE ASSESSING OFFICER AND ALSO BEF ORE THE CIT (A) HAS NOT BEEN CONSIDERED PROPERLY. 2 4. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEARD OR DISPOSED OFF. 3. BRIEF FACTS ARE THAT SEARCH AND SEIZURE OPERATI ON WAS CARRIED OUT AT THE RESIDENTIAL/BUSINESS PREMISE S OF JINDAL GROUP OF CASES, PANCHKULA ON 15.7.2008. THE PREMISES BELONGING TO THE ASSESSEE GROUP WAS COVERE D U/S 132(1) OF THE INCOME TAX ACT, 1961 (IN SHORT THE A CT). ON PERUSAL OF THE PANCHNAMA AND SEIZED DOCUMENTS OF TH E PREMISES IT WAS NOTICED THAT SOME DOCUMENTS RELATIN G TO THE ASSESSEE I.E. M/S HEERA MOTI AGRO INDUSTRIES WERE F OUND AND SEIZED. CONSEQUENTLY, NOTICE U/S 153C OF THE ACT W AS ISSUED TO THE ASSESSEE AND THEREAFTER ASSESSMENT FRAMED MA KING ADDITION OF RS.64,950/- U/S 40(A)(IA) OF THE INCOME TAX ACT,1961, ON ACCOUNT OF NON DEDUCTION OF TDS ON PAY MENT MADE ON ACCOUNT OF GRINDING CHARGES AND ADDITION OF RS.37,61,892/- BEING BALANCE OF SUNDRY CREDITORS AD DED BACK TO THE INCOME OF THE ASSESSEE ON ACCOUNT OF FA ILURE OF THE ASSESSEE TO FILE CONFIRMATION OF THE SAME. PE NALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT READ WITH EXPLANATION 5A WERE ALSO INITIATED FOR BOTH THE SAI D ADDITIONS. NOTICE UNDER SECTION 271(1)(C) WAS ISSU ED. IN THE MEANWHILE, THE LD. CIT (APPEALS) DISMISSED THE ASSE SSEES APPEAL IN QUANTUM PROCEEDINGS ON THE ISSUE OF ADDIT ION MADE ON ACCOUNT OF SUNDRY CREDITORS. THEREAFTER TH E ASSESSING OFFICER GAVE THE ASSESSEE ANOTHER OPPORTU NITY, IN PENALTY PROCEEDINGS, TO FILE ITS REPLY WHICH WAS DU LY SUBMITTED AND AFTER CONSIDERING WHICH THE ASSESSING OFFICER REJECTED THE CONTENTIONS OF THE ASSESSEE AND IMPOSE D PENALTY 3 OF RS.14 LACS. ON THE ADDITION SUSTAINED I.E. ON SU NDRY CREDITORS BALANCE ADDED BACK OF RS. 37,61,892/-. 4. THE MATTER WAS CARRIED IN APPEAL BEFORE THE CIT (APPEALS) WHO DISMISSED THE ASSESSEES APPEAL AND C ONFIRMED THE LEVY OF PENALTY. 5. AGGRIEVED BY THE SAME, THE ASSESSEE HAS NOW COM E UP IN APPEAL BEFORE US. DURING THE COURSE OF HEARI NG BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE POINTED OUT TH AT THE HON'BLE I.T.A.T. HAD DELETED THE ADDITION MADE ON A CCOUNT OF SUNDRY CREDITORS IN ITS ORDER PASSED IN ITA NO.736/CHD/2013 DATED 23.8.2016. THE COPY OF THE O RDER WAS PLACED BEFORE US. THE LD. COUNSEL FOR THE ASSE SSEE, THEREFORE, CONTENDED THAT SINCE THE ADDITION MADE H AD BEEN DELETED, THERE WAS NO CASE FOR LEVY OF ANY PENALTY AT ALL. 6. WE HAVE HEARD BOTH THE PARTIES. WE HAVE ALSO GONE THROUGH THE ORDER OF THE I.T.A.T., CHANDIGARH BENCH IN THE CASE OF THE ASSESSEE IN ITA NO.736/CHD/2013 DA TED 23..6.2016 PLACED BEFORE US. THE SAME, WE FIND, IS A CONSOLIDATED ORDER PASSED IN A GROUP OF CASES WITH THE LEAD CASE BEING M/S MALA BUILDERS PVT. LTD. ,WHEREIN THE HON'BLE I.T.A.T. HAD DEALT WITH THE ISSUE WHETHER ADDITION COULD BE MADE TO INCOME OF ASSESSEE WHICH WAS NOT BASED ON A NY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH IN THE CASE OF COMPLETED ASSESSMENT. THE HON'BLE I.T .A.T. IN THE SAID CASE HELD THAT IN THE ABSENCE OF ANY INCRI MINATING MATERIAL FOUND DURING THE COURSE OF SEARCH AND ASSE SSMENT 4 PROCEEDINGS HAVING NOT ABATED AT THE TIME OF SEARCH , THE ASSESSING OFFICER HAD NO JURISDICTION TO MAKE ADDI TION U/S 153A OF THE ACT. THE CASE OF THE ASSESSEE IN ITA NO.736/CHD/2013 WAS ONE OF THE CASES AMONG THE GROU P IN WHICH THE FACTS BROUGHT OUT SHOWED THAT THE ADDITIO N HAD BEEN MADE IN THE ABSENCE OF ANY INCRIMINATING MATE RIAL FOUND DURING THE COURSE OF SEARCH. THE HON'BLE I.T .A.T., THEREFORE, WE FIND, HAS DELETED THE ADDITION MADE I N QUANTUM PROCEEDINGS IN THE CASE OF ASSESSEE VIDE TH E AFORESAID ORDER. SINCE THE ADDITION MADE ITSELF HA S BEEN DELETED, NO CASE REMAINS FOR LEVY OF PENALTY. THE PENALTY LEVIED, THEREFORE, IN THE PRESENT CASE AMOUNTING TO RS.14 LACS IS DIRECTED TO BE DELETED. THE ORDER OF THE C IT (APPEALS) IS SET ASIDE AND THE APPEAL OF THE ASSESSEE IS ALLO WED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (BHAVNESH SAINI) (ANNAPURNA GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 18 TH APRIL, 2017 *RATI* COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT 5. THE DR ASSISTANT REGISTRAR, ITAT, CHANDIGARH 5