Akshaya Kumar Parija, Bhubaneswar V. DCIT, Circle-2, Bhubaneswar

ITSSA 1/CTK/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3283 (ITAT-CUTTACK)
• Duration Of Justice: 3 year(s) 9 month(s) 20 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 21-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 01-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BEFORE S/ AND MANISH BORAD, ACCOUNTANT MEMBER AKSHAYA KUMAR PARIJA, A- 1/1, PALLASPALI, BHUBANESWAR. PAN/GIR NO. (APPELLANT PER BENCH THIS IS AN APPEAL FILED BY THE ASSESSEE A CIT(A)-3 , BHUBANESWAR 2011. 2. THE APPEAL IS TIME BARRED BY 448 DAYS. THE ASSESSEE HAS FILED CONDONATION PETITION DATED 1.9.2018 STATING THAT THE APPELLATE ORDER WAS RECEIVED BY THE ASSESSEE ON 7 TRIBUNAL COULD HAVE BEEN FILED ON OR BEFORE 7 NEGLIGENCE OF LD A.R. OF THE ASSESSEE, APPEAL COULD NOT BE FILED WITHIN THE DUE TIME. IN SUPPORT OF ABOVE CONTENTION, THE ASSESSEE HAS FILED AFFIDAVIT IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK S/ SHRI CHANDRA MOHAN GARG, JUDICIAL AND MANISH BORAD, ACCOUNTANT MEMBER IT(SS)A NO.01 /CTK/20 18 ASSESSMENT YEAR : 2010- 2011 AKSHAYA KUMAR PARIJA, 1/1, PALLASPALI, BHUBANESWAR. VS. DCIT, CIRCLE BHUBANESWAR. NO. AOLPP 8587 N (APPELLANT ) .. ( RESPONDENT ASSESSEE BY : SHRI P.R.MOHANTY REVENUE BY : SHRI M.K.GAUTAM . CIT ( DATE OF HEARING : 20 /10 / 20 DATE OF PRONOUNCEMENT : 21/ 10 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE A GAINST THE ORDER OF THE , BHUBANESWAR DATED 29.7.2016 FOR THE ASSESSMENT YEAR THE APPEAL IS TIME BARRED BY 448 DAYS. THE ASSESSEE HAS FILED CONDONATION PETITION DATED 1.9.2018 STATING THAT THE APPELLATE ORDER WAS RECEIVED BY THE ASSESSEE ON 7 TH AUGUST, 2016,AND AS SUCH APPEAL BEFORE THE TRIBUNAL COULD HAVE BEEN FILED ON OR BEFORE 7 TH OCTOBER, 2016 BUT DUE TO NEGLIGENCE OF LD A.R. OF THE ASSESSEE, APPEAL COULD NOT BE FILED WITHIN THE DUE TIME. IN SUPPORT OF ABOVE CONTENTION, THE ASSESSEE HAS FILED AFFIDAVIT P A G E 1 | 7 IN THE INCOME TAX APPELLATE TRIBUNAL, JUDICIAL MEMBER AND MANISH BORAD, ACCOUNTANT MEMBER 18 2011 DCIT, CIRCLE - 2, BHUBANESWAR. RESPONDENT ) P.R.MOHANTY , AR . CIT ( DR) / 20 21 10 /2021 GAINST THE ORDER OF THE FOR THE ASSESSMENT YEAR 2010- THE APPEAL IS TIME BARRED BY 448 DAYS. THE ASSESSEE HAS FILED CONDONATION PETITION DATED 1.9.2018 STATING THAT THE APPELLATE ORDER WAS AUGUST, 2016,AND AS SUCH APPEAL BEFORE THE OCTOBER, 2016 BUT DUE TO NEGLIGENCE OF LD A.R. OF THE ASSESSEE, APPEAL COULD NOT BE FILED WITHIN THE DUE TIME. IN SUPPORT OF ABOVE CONTENTION, THE ASSESSEE HAS FILED AFFIDAVIT IT(SS)A NO.01 /CTK/2018 ASSESSMENT YEAR : 2010-2011 P A G E 3 | 7 OF LAW WHICH HAPPENS BE AN VALID EXCUSE SO FAR AS FISCAL STATUTE IS CONCERNED. 2. THAT THEREFORE, THE ASSESSEE APPELLANT REQUEST AND PRAY BEFORE THIS AUGUST BENCH TO KINDLY ALLOW & ADJUDICATE THIS GROUND OF APPEAL NOT RAISED BEFORE THE LOWER FORUM AS UNDER: 1. FOR THAT THE ASSESSMENT AND CONSEQUENTIAL ADDITIONS TO BE TOTAL INCOME U/S.153A DESERVES TO BE QUASHED AND DELETED ON THE GROUND THAT NO ADDITIONS OR REASSESSMENT FOR THE UNABATED YEARS CAN BE MADE IN ABSENCE OF ANY INCRIMINATING MATERIALS/DOCUMENTS/EVIDENCE UNEARTHED DURING THE COURSE OF SEARCH. 2. FOR THAT THE ASSESSMENT AND CONSEQUENTIAL ADDITIONS TO THE TOTAL INCOME U/S.153A DESERVES TO BE QUASHED AND DELETED ON THE GROUND THAT NO ADDITIONS OR REASSESSMENT CAN BE MADE PURELY ON THE BASIS OF PRESUMPTIONS AND ASSUMPTIONS IN ABSENCE OF ANY INCRIMINATING MATERIAL FOUND FOR THE UNABATED YEARS OF ASSESSMENT ON THE GROUND THAT COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE AO WHILE MAKING THE ASSESSMENT U/S.153A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS OR UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN COURSE OF ORIGINAL ASSESSMENT. 6. THE LD COUNSEL FOR THE ASSESSEE CONTENDED THAT HE HAS RAISED A LEGAL GROUND, WHICH GOES TO THE ROOT OF THE DISPUTE, AND ITS ADJUDICATION IS PARAMOUNT FOR THE DISPOSAL OF THE ENTIRE DECISION. HE REFERRED TO THE DECISION OF HON SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. V. CIT (1998) 229 ITR 383 TO BRING HOME THE POINT THAT THE ADDITIONAL GROUND CAN BE VALIDLY RAISED AT THIS JUNCTURE. LD CIT DR OPPOSED TO THE ADMISSION OF ADDITIONAL GROUND AT THE BELATED STAGE. IT(SS)A NO.01 /CTK/2018 ASSESSMENT YEAR : 2010-2011 P A G E 5 | 7 9. REPLYING TO ABOVE, LD CIT DR VEHEMENTLY ARGUED THAT ASSESSEE CANNOT TAKE THE ARGUMENT THAT NO INCRIMINATING DOCUMENT WAS FOUND. IT WAS SUBMITTED THAT THE DOCUMENTS RELIED ON BY THE ASSESSING OFFICER WAS THOUGH FOUND DURING THE SEARCH & SEIZURE OPERATION. LD CIT DR SUBMITTED THAT ON VERIFICATION OF BANK STATEMENT, THE AO NOTICED THAT THE ASSESSEE RECEIVED RS.20,00,000/- FROM M/S. LOHARU INFRA, WHICH CLAIMED TO HAVE BEEN AS REFUND OF LOAN AND ADVANCE GIVEN EARLIER BUT COULD NOT PROVIDE THE EXACT DATE OF LENDING AND IN THE ABSENCE OF BANK STATEMENT, THE AO WAS COMPELLED IN MAKING THE ADDITION TO THE INCOME OF THE ASSESSEE. LD CIT DR RELIED ON THE DECISION OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. RAJ KUMAR ARORA [2014] 367 ITR 517 (ALL), WHEREIN, IT HAS BEEN HELD THAT THERE IS NO REQUIREMENT OF INCRIMINATING MATERIAL FOR INVOKING THE PROVISIONS OF SECTION 153A . 10. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE FIND THAT A SEARCH AND SEIZURE ACTION WAS CONDUCTED IN THE CASE OF THE ASSESSEE AND THE AO ISSUED NOTICE U/S.153A OF THE ACT, IN RESPONSE TO WHICH, THE ASSESSEE FILED RETURN SHOWING INCOME AT RS.4,02,256/-. THERE IS NO WHISPER IN THE ASSESSMENT ORDER THAT ANY INCRIMINATING MATERIAL WAS UNEARTHED IN THE CASE OF THE ASSESSEE. HOWEVER, THE AO HAS MADE ADDITION OF RS.20,00,000/- BEING THE AMOUNT RECEIVED FROM M/S. LOHARU INFRA. IT WAS THE CONTENTION OF THE ASSESSEE THAT THE SAME AMOUNT WAS REFUND OF LOANS AND ADVANCE WHICH WAS GIVEN EARLIER ON 31.7.2008 FROM THE REMITTED FUNDS OUTSIDE INDIA. IT(SS)A NO.01 /CTK/2018 ASSESSMENT YEAR : 2010-2011 P A G E 7 | 7 TO INITIATE PROCEEDINGS U/S.153A OF THE ACT AND CONSEQUENTLY MAKING ADDITION TO THE TOTAL INCOME OF THE ASSESSEE. WE, ACCORDINGLY, QUASH THE ASSESSMENT MADE U/S.153A READ WITH 143(3) OF THE ACT AND ALLOW THE ADDITIONAL GROUNDS OF THE ASSESSEE. SINCE, WE HAVE QUASHED THE ASSESSMENT U/S.153A OF THE ACT WHILE ADJUDICATING ADDITIONAL GROUND, THERE IS NO NECESSITY TO ADJUDICATE THE APPEAL ON MERITS ON THE MAIN GROUNDS. 12. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 21/10/2021. SD/- SD/- (MANISH BORAD) (CHANDRA MOHAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER CUTTACK; DATED 21 /10/2021 B.K.PARIDA, SPS (OS) COPY OF THE ORDER FORWARDED TO : BY ORDER SR.PVT.SECRETARY ITAT, CUTTACK 1. THE APPELLANT : AKSHAYA KUMAR PARIJA, A-1/1, PALLASPALI, BHUBANESWAR 2. THE RESPONDENT. DCIT, CIRCLE - 2, BHUBANESWAR 3. THE CIT(A) - 3 , BHUBANESWAR 4. PR.CIT - 3 , BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//