M/s. J.M. Corporation, Baroda V. The Dy.CIT, Central Circle-2, Baroda

ITSSA 1/AHD/2016

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 7867 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 30 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 31-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 01-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALIT P JAIN
• Keywords: Assessment record
• Section: 143(3); 153A

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMEBR () ./ I.T.(SS)A. NOS. 1 & 2/AHD/2016 ( ASSESSMENT YEARS : 2009-10 & 2010-11) M/S. J. M. CORPORATION 3, MANGALDHAM SOCIETY, ATMAJYOTI ASHRAM, ELLORA PARK, BARODA / VS. THE DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 2, BARODA ./ ./ PAN/GIR NO. : AAGFJ3414M ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI MUKUND BAKSHI, A.R. / RESPONDENT BY : SHRI LALIT P. JAIN, SR.D.R. !' DATE OF HEARING 31/12/2018 #$%& !' / DATE OF PRONOUNCEMENT 31/12/2018 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED TWO APPEALS HAVE BEEN BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-1 2, AHMEDABAD (CIT(A) IN SHORT), DATED 31.08.2015 ARISING IN AS SESSMENT ORDERS DATED 28.03.2013 PASSED UNDER S. 153A R.W.S. 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT) CONCERNING ASSESSMENT YEARS 2009-10 & 2010- 11. IT(SS)A NOS. 1 & 2/AHD/16 [M/S. J. M. CORPORATION VS. DCIT] AYS. 2009-10 &2010-11 - 2 - 2. THE ISSUES IN BOTH THE CAPTIONED APPEALS ARE INT ER-CONNECTED AND THEREFORE HEARD TOGETHER FOR ADJUDICATION PURPOSES. 3. WHEN THE MATTER WAS CALLED FOR HEARING, THE LEAR NED AR FOR THE ASSESSEE AT THE OUTSET REFERRED TO THE PETITION DAT ED 09.08.2018 FOR ADMISSION OF ADDITIONAL GROUND WITH REFERENCE TO AY 2009-10. SIMILAR ADDITIONAL GROUND OF LEGAL NATURE WAS STATED TO HAV E BEEN RAISED WITH REFERENCE TO AY 2010-11 AS WELL. THE LEARNED AR FO R THE ASSESSEE CONTENDED THAT AS PER THE ADDITIONAL GROUND, THE EN TIRE SEARCH ASSESSMENT UNDER S.153A/153C OF THE ACT IS LIABLE T O STRUCK DOWN IN THE ABSENCE OF INCRIMINATING MATERIAL FOUND IN THE COURSE OF SEARCH. WHEN INQUIRED BY THE BENCH, THE LEARNED AR SUBMITTE D THAT THE RELEVANT FACTS CONCERNING THE ISSUE AS TO WHETHER T HE ADDITIONS/DISALLOWANCES HAVE ANY CONNECTION WITH AN Y INCRIMINATING MATERIAL FOUND IN THE SEARCH WILL HAVE TO BE VERIFI ED FROM THE ASSESSMENT RECORDS AND SEARCH FOLDER. THE LEARNED AR THEREAFTER SUBMITTED THAT IN THE LIGHT OF DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF PR.CIT VS. SUNRISE FINLEASE (P.) LTD . [2018] 89 TAXMANN.COM 1 (GUJ), NO ADDITION COULD BE MADE IN S ECTION 153A PROCEEDINGS WHERE NO INCRIMINATING EVIDENCE AGAINST THE ASSESSEE WAS FOUND DURING THE COURSE OF SEARCH. IT WAS SIMULTAN EOUSLY POINTED OUT THAT SIMILAR VIEW HAS BEEN TAKEN IN THE CASE OF PR. CIT VS. SAUMYA CONSTRUCTION (P.) LTD. [2016] 387 ITR 529 (GUJ) MOR E SO WHERE THE ASSESSMENT PROCEEDINGS WERE NOT PENDING AT THE TIME OF SEARCH AND IT(SS)A NOS. 1 & 2/AHD/16 [M/S. J. M. CORPORATION VS. DCIT] AYS. 2009-10 &2010-11 - 3 - WERE STOOD CONCLUDED. THE LEARNED AR FOR THE ASSES SEE HOWEVER FAIRLY SUBMITTED THAT THE FACTS IN THIS REGARD ARE NOT FIN ALLY CONCLUDED AND REQUIRE FACTUAL VERIFICATION FROM THE ASSESSMENT RE CORDS IN THE LIGHT OF LEGAL PRINCIPLES LAID DOWN BY THE HONBLE JURISDICT IONAL HIGH COURT. 4. THE LEARNED DR FAIRLY ACCEPTED THE ASSERTIONS MA DE ON BEHALF OF THE ASSESSEE AND ENDORSED THE REQUEST OF THE LEARNE D AR FOR REMITTING THE MATTER BACK TO THE FILE OF THE CIT(A) FOR ADJUD ICATION OF LEGAL ISSUE. 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. THE ADDITIONAL GROUND RAISED IN BOTH THE APPEALS IS LEG AL IN NATURE AND GOES TO THE ROOT OF THE JURISDICTIONAL ASPECT OF THE SEA RCHED ASSESSMENT. HOWEVER, AS FAIRLY CONSENTED ON BEHALF OF BOTH THE SIDES, WE CONSIDER IT EXPEDIENT TO REMIT THE MATTER BACK TO THE FILE O F THE CIT(A) FOR EXAMINATION OF THE LEGAL OBJECTION SO RAISED ON BEH ALF OF THE ASSESSEE ON SUSTAINABILITY OF ADDITIONS/DISALLOWANCES IN PRO CEEDINGS UNDER S.153A/153C OF THE ACT IN THE ALLEGED ABSENCE OF IN CRIMINATING MATERIAL IN THE LIGHT OF LEGAL PROPOSITION SET OUT BY THE JURISDICTIONAL HIGH COURT WHERE NO ASSESSMENT IS STATED TO BE PEND ING. IN THE ABSENCE OF ASSESSMENT RECORDS AND MATERIAL FOUND IN THE COURSE OF SEARCH, WE ARE NOT IN A POSITION TO OPINE ON THE IS SUE EITHER WAY. THE LEGAL ISSUE IS THUS RESTORED TO THE FILE OF THE CIT (A) FOR DETERMINATION THEREOF IN ACCORDANCE WITH LAW. IT WILL BE OPEN TO THE ASSESSEE TO IT(SS)A NOS. 1 & 2/AHD/16 [M/S. J. M. CORPORATION VS. DCIT] AYS. 2009-10 &2010-11 - 4 - ESTABLISH ITS CASE BEFORE THE FIRST APPELLATE AUTHO RITY AFRESH WITH REFERENCE TO THE LEGAL ISSUE RAISED AS PER THE ADDI TIONAL GROUND. THE MATTER IS THUS REMANDED BACK TO THE FILE OF THE CIT (A) ACCORDINGLY. 6. IN THE RESULT, BOTH CAPTIONED APPEALS OF THE ASS ESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. SD/- SD/- (MAHAVIR PRASAD) (PRADIP KUMA R KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 31/12/2018 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- ). / REVENUE 2. / ASSESSEE +. ,-.! /! / CONCERNED CIT 4. /!- / CIT (A) 2. 345 6!6-.7 ' -.&7 89, / DR, ITAT, AHMEDABAD :. 5;< = / GUARD FILE. BY ORDER / 7 /8 ' -.&7 89, THIS ORDER PRONOUNCED IN OPEN COURT ON 31/12/2018