Deputy Commissioner of Income-tax, Central Circle -1 (3), Pune V. Rajendrasingh Yadav, Pune

ITSSA 101/PUN/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2752 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 20-09-2022
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 20-07-2022
• Assessment Year: 2006-2007
• Appeal Filed On: 07-07-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence
• Section: 132; 143(3); 142(1); 153A; 142(2A)

Judgement Text

आयकर अपीलीय अधधकरण “बी” न्यायपीठ पुणे में । IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, PUNE BEFORE SHRI S.S.GODARA, JM AND SHRI DR. DIPAK P. RIPOTE, AM आयकर अपील सं. / IT (SS)A No.100/PUN/2019 & IT (SS)A No. 101/PUN/2019 धनधाारण वषा / Assessment Year : 2005-06 & 2006-07 DCIT, Central Circle -1(3), Pune .......अपीलाथी / Appellant बनाम / V/s. Rajendra Singh Yadav, Flat No.1202,Building No. P-4, Empire Estate,Chinchwad, Pune – 411 017. PAN : AABPY0300N ......प्रत्यथी / Respondent Assessee by : None Revenue by : Shri Sardar Singh Meena सुनवाई की तारीख / Date of Hearing : 21.07.2022 घोषणा की तारीख / Date of Pronouncement : 21.09.2022 आदेश / ORDER PER S. S. GODARA, JM : 1. These Revenue’s twin appeals for AY 2005-06 & 2006-07 arise against CIT(A)-13, Pune’s common order dated 12.04.2019 passed in case No. PN/CIT(A)-13/ITO Central-I, Pune/202,203/2008-09/27 respectively, in proceeding u/s. 143 (3) r.w.s. 153A(b) of the Income Tax Act, 1961; in short "the Act”. Case called twice. None appears at assessee’s behest. He is accordingly proceeded ex-parte. 2 IT (SS)A No.100/PUN/2019 & IT (SS)A No. 101/PUN/2019 A.Y. : 2005-06 & 2006-07 Rajendra Singh Yadav, Heard the Revenue. Case files perused. 2. The Revenue raised the following identical substantive grounds “in both these appeals “1. Whether on the facts in the circumstances of the case in law, the CIT(A) was right in holding that opportunity of being heard has to be given by the AO only and opportunity of being heard given by the superior authority, i.e., Commissioner of Income-Tax (Central), does not constitute sufficient compliance with the rules of audi altern partem, ignoring the fact that the task of determining whether the case involves a situation where a special audit is necessary is placed on the AO and the Commissioner simultaneously ? 2. Whether on the facts and in the circumstances of the case and in law, the CIT(A) was right in holding that the assessment order is invalid and bad in law, ignoring the fact that reasonable opportunity of being heard was afforded by the Commissioner of Income Tax (Central) before the order of Special Audit u/s. 142(2A) of the Act was passed by the Assessing Officer, which constitutes compliance with the principle of natural justice? 3. Whether on the facts and in the circumstances of the case and in law, the CIT(A) was right in relaying on the decision of ITAT in the case of Vilson Particle Boad Industries Ltd. where in turn reliance is placed on the decisions of the Hon’ble Supreme Court in the Sahara India(Firm) Vs CIT and another (2008) 300 ITR 403 (SC) and in the case of Rajesh Kumar and Others Vs DCIT(2006) 287 ITR 91 (SC) and treating the assessment orders are bad in law though the facts are distinguishable and not squarely applicable to the facts of the assessee’s case ? 3 IT (SS)A No.100/PUN/2019 & IT (SS)A No. 101/PUN/2019 A.Y. : 2005-06 & 2006-07 Rajendra Singh Yadav, 4. The appellant prays that the order of the CIT(A) may be vacated on the issue and that of the AO be restores.” 3. Learned CIT DR submits at the outset that the first and foremost issue or sole substantive issue or for that, the dispute between the parties is regarding validity of the AO’s action appointing special auditor u/s.142(2A) of the Act wherein the CIT(A) has held the same to be non-sustainable in law. Mr. Meena next sought to butteress the point that this tribunal’s co-ordinate bench order in assessee’s appeal in IT(SS) No.84/PUN/2017 for AY 2004-05 decided very recently on 10.05.2022 has upheld validity of section 142(2A) proceedings initiated vide assessing authorities common order in all these years. Learned CIT–DR took us to relevant part of tribunal’s detailed discussion to this effect as follows:- “4. Heard ld. DR and perused the material available on record. We note that the assessee is an individual derives income from consultancy service in the education sector. A search was conducted on 20-07-2005 in the case of Yadav Group u/s. 132 of the Act. The assessee is a member of the said group. The assessee provides consultancy service under the name and style of “Siddhant Consultancy Services” in respect of professional education, besides also arranges admissions in different colleges, for which charges commission from prospective students. In response to the notice u/s. 153A of the Act, the assessee filed return of income declaring a total income of Rs.42,50,820/-. We note that the AO received special audit report in response to order of CIT(Central) u/s. 142(2A) of the Act. Before the CIT(A) a contention was raised, there was 4 IT (SS)A No.100/PUN/2019 & IT (SS)A No. 101/PUN/2019 A.Y. : 2005-06 & 2006-07 Rajendra Singh Yadav, no opportunity for the assessee of being heard by the AO regarding invocation of special audit u/s. 142(2A) of the act and it was vehemently contended that the order passed by the AO is barred by limitation which was passed beyond the date stipulated as per Act. The CIT(A) discussed the said issue from Page Nos. 16 to 27 and held the assessment order passed by the AO is valid by rejecting the contention of assessee that it was barred by limitation. We note that there were no response from the assessee regarding the notice u/s. 142(1) of the Act which was issued on 20-08-2007 fixing the date of hearing on 04-09-2007. The AO forwarded a proposal for special audit to the CIT on 26-09-2007. The CIT issued show cause notice on 02-11-2007 and conducted hearing on 13-11-2007. There is no dispute by the assessee that he was not called for hearing in respect of AO’s proposal to get the accounts of the special audit of assessee. Having heard on 13-11- 2007, the CIT ordered special audit u/s. 142(2A) of the Act on 22-11-2007. It is established from the record that there was a reasonable opportunity was provided by the AO and also CIT(A) in the impugned proceedings to the assessee in respect of proposal u/s. 142(2A) of the Act. We find that the assessee participated before the AO in respect of proposal for special audit and the order of CIT(A) for the same and raising a ground challenging the order passed by the AO without giving an opportunity which was confirmed by the CIT(A) is invalid, in our opinion, is contrary to the evidence on record. Therefore, ground Nos. 1 to 4 raised by the assessee challenging the validity of assessment passed u/s. 143(3) r.w.s. 153A of the Act are dismissed. 5. In respect of ground Nos. 5 to 23 raised by the assessee, it was submitted by the ld. DR that the assessee filed additional evidences and referred to Page No. 29. We note that the said additional evidences filed for the first time before the Tribunal and we find there was no opportunity for the lower authorities to examine the same. Therefore, we deem it proper to remand the issues raised in ground No. 5 to 23 to the 5 IT (SS)A No.100/PUN/2019 & IT (SS)A No. 101/PUN/2019 A.Y. : 2005-06 & 2006-07 Rajendra Singh Yadav, file of AO for its fresh adjudication and the assessee is liberty to file evidences, if any, in support of its claim. Thus, ground Nos. 5 to 23 are allowed for statistical purpose.” 4. It therefore emerges that once the learned co-ordinate bench has upheld the AO’s 142(2A) common special audit, the CIT(A)’s findings in issue quashing the impugned assessment for the very reason deserve to be reversed. We therefore adopt the judicial consistency to restore the Revenue’s instant twin appeals back to the Assessing Officer for his afresh adjudication on merits as per law. No other ground or argument has been raised before us. 6. This Revenue’s twin appeals are allowed for statistical purposes in above terms. A Copy of this common order be placed in the respective files. Order pronounced in the Open Court on this 21 st day of September, 2022. Sd/- Sd/- (DR.DIPAK P.RIPOTE) (S.S. GODARA) लेखा सदस्य/ ACCOUNTANT MEMBER न्याधयक सदस्य/JUDICIAL MEMBER पुणे / Pune; ददनांक / Dated : 21 st September, 2022. Ashwini 6 IT (SS)A No.100/PUN/2019 & IT (SS)A No. 101/PUN/2019 A.Y. : 2005-06 & 2006-07 Rajendra Singh Yadav, आदेश की प्रधतधलधप अग्रेधषत / Copy of the Order forwarded to : 1. अपीलाथी / The Appellant. 2. प्रत्यथी / The Respondent. 3. The CIT(A) -13, Pune 4. The PCIT-1, Pune. 5. धवभागीय प्रधतधनधध, आयकर अपीलीय अधधकरण, “बी” बेंच, पुणे / DR, ITAT, “B” Bench, Pune. 6. गार्ा फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अधधकरण, पुणे / ITAT, Pune. 7 IT (SS)A No.100/PUN/2019 & IT (SS)A No. 101/PUN/2019 A.Y. : 2005-06 & 2006-07 Rajendra Singh Yadav, S.No. Details Date Initials 1 Draft dictated on 22.07.2022 2 Draft placed before author 19.09.2022 3 Draft proposed & placed before the Second Member 4 Draft discussed/approved by Second Member 5 Approved Draft comes to the Sr. PS/PS 6 Kept for pronouncement on 7 Date of uploading of Order 8 File sent to Bench Clerk 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R. 11 Date of Dispatch of order