D.D.Builders Limited, Bhubaneswar V. ACIT,Central Circle-2, Bhubaneswar

ITSSA 1/CTK/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3104 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 5 month(s) 17 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 24-08-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 24-08-2022
• Assessment Year: 2012-2013
• Appeal Filed On: 08-03-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BEFORE AND ARUN KHODPIA, ACCOUNTANT MEMBER D.D.Builders Ltd.,Plot No.36-F, BJB Nagar, Bhubaneswar. PAN/GIR No. (Appellant Per Bench These are of the ld CIT(A) 0462 & 0463 2. The only dispute raised by the assessee in both the appeals is that the ld CIT(A) is not justified in confirming the AO u/s.40A(3) of the Act. IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE S/SHRI GEORGE MATHAN, JUDICIAL AND ARUN KHODPIA, ACCOUNTANT MEMBER IT(ss)A Nos.1 & 2/CTK/2021 Assessment Years : 2012-13 & 2015 D.D.Builders Ltd.,Plot F, BJB Nagar, Bhubaneswar. Vs. ACIT, Central Circle Bhubaneswar PAN/GIR No.AABCD 1433 E (Appellant) .. ( Respondent Assessee by : Shri K.K.Agrawalla, AR Revenue by : Shri M.K.Gautam, CIT Date of Hearing : 25/8 Date of Pronouncement : 25/8 O R D E R These are appeals filed by the assessee against the of the ld CIT(A)-2, Bhubaneswar both dated 15.1.2021 for the assessment year 2012-13 & 2015 The only dispute raised by the assessee in both the appeals is that the ld CIT(A) is not justified in confirming the part disallowance made by the AO u/s.40A(3) of the Act. Page1 | 4 IN THE INCOME TAX APPELLATE TRIBUNAL, JUDICIAL MEMBER AND ARUN KHODPIA, ACCOUNTANT MEMBER 21 13 & 2015-16 ACIT, Central Circle-2, Bhubaneswar Respondent) K.K.Agrawalla, AR M.K.Gautam, CIT DR 8/2022 8/2022 filed by the assessee against the separate orders 15.1.2021 in Appeal Nos. 13 & 2015-16, respectively. The only dispute raised by the assessee in both the appeals is that part disallowance made by IT(ss)A Nos.1 & 2/CTK/2021 Assessment Years : 2012-13 & 2015-16 Page2 | 4 3. Shri Kamal Kumar Agrwalla, ld AR appeared for the assessee and Shri M.K.Gautam, ld CIT DR appeared for the revenue. 4. It was the submission by ld AR that the ld CIT(A) had dismissed the assessee’s appeal on the ground that incriminating material had been found in the course of search, which led to the assessment u/s.153A of the Act. It was submitted by ld AR that in the course of search, only cash books were found and cash book could not be under any stretch of imagination be termed as incriminating materials in view of the decision of Hon’ble Delhi High Court in the case of Param Dairy Ltd., 439 ITR 89 (Del). It was the submission that in assessee’s case for the assessment years 2012-13 & 2015-16 intimation u/s.143(1) was issued and as no notice u/s.143(2) has been issued, in view of the decision in the case of Param Dairy ltd (supra), no addition much less in the assessment u/s.153A could be made in the case of the assessee. He also referred to the decision of Hon’ble Delhi High Court in the case of Kabul Chawla, 380 ITR 573 (Del). 5. In reply, ld CIT DR vehemently supported the order of the ld CIT(A). It was the submission that it was categorically found that the assessee had paid cash in excess of the prescribed limit and this was not disclosed in the audit report and the fact that this was found in the course of search, same should be treated as incriminating material for the purpose of assessment u/s.153A of the Act. It was further submitted that there is no requirement of incriminating material for the purpose of assessment u/s.153A of the Act. IT(ss)A Nos.1 & 2/CTK/2021 Assessment Years : 2012-13 & 2015-16 Page3 | 4 He relied upon his arguments as was made in assessee’s own case for the assessment year 2010-2011. 6. We have considered the rival submissions. In the assessee’s own case for the assessment year 2010-2011 in IT(SS) A No.7/CTK/2020, of even date we have categorically held that the intimation u/s.143(1) would be deemed to be completed assessment especially when the time limit for issuance of notice u/s.143(2) has also expired. Consequently, it was held that in a case of completed assessment, unless there is incriminating material, proceedings u/s.153A could not be initiated against the assessee on whom search has been done. In these circumstances, respectfully following the decision of the Co-ordinate Bench in the case of the assessee for the assessment year 2010-11 (supra), it is held that assessment u/s.153A is unsustainable and consequently, the assessment the assessment is quashed and the addition stands deleted. 7. In the result, appeals of the assessee are allowed. Order dictated and pronounced in the open court on 25/8/2022. Sd/- sd/- (Arun Khodpia) (George Mathan) ACCOUNTANT MEMBER JUDICIAL MEMBER Cuttack; Dated 25/8/2022 B.K.Parida, SPS (OS) IT(ss)A Nos.1 & 2/CTK/2021 Assessment Years : 2012-13 & 2015-16 Page4 | 4 Copy of the Order forwarded to : By order Sr.Pvt.secretary ITAT, Cuttack 1. The Appellant : D.D.Builders Ltd.,Plot No.36-F, BJB Nagar, Bhubaneswar. 2. The Respondent: ACIT, Central Circle-2, Bhubaneswar 3. The CIT(A)-2, Bhubaneswar 4. Pr.CIT-,-2, Bhubaneswar 5. DR, ITAT, Cuttack 6. Guard file. //True Copy//