Sri Hareram Chowdary, Bhubaneswar V. ACIT, Corporate Circle-1(2), Bhubaneswar

ITSSA 11/CTK/2017

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 3447 (ITAT-CUTTACK)
• Duration Of Justice: 7 month(s) 19 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 12-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2002-2003
• Appeal Filed On: 22-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KUNAL SINGH
• Assessee Lawyers: B D OJHA

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI N.S.SAINI, AM & SHRI PAV AN KUMAR GADALE, JM ./ IT ( SS) A NO. 11 & 12 / CTK /20 1 7 ( / ASSESSMENT YEAR : 2002 - 03 & 2003 - 04 ) SRI HA RERAM CHOWDARY , PLOT NO.1/103, SAHEED NAGAR, BHUBANESWAR - 751007 VS. ACIT, CIRCLE - 1 (2), BHUBANESWAR ./ PAN NO. : A FBPC 2046 J ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI B.D.OJHA , AR /REVENUE BY : SHRI KUNAL SINGH , CITDR / DATE OF HEARING : 12 / 10 /201 7 / DATE OF PRONOUNCEMENT 12/10 /201 7 / O R D E R PER SHRI PAV AN KUMAR GADALE, JM : THESE ARE THE APPEALS FILED BY THE ASSESSEE A GAINST THE ORDER OF THE CIT(A) - 3 , BHUBANESWAR BOTH DATED 21.10.2016 FOR THE ASSESSMENT YEARS 2002 - 03 TO 200 3 - 2004 . 2. SINCE THE ISSUE AND FACTS INVOLVED IN THESE APPEALS ARE INTERCONNECTED AND COMMON, THEY ARE BEING HEARD AND DISPOSED OFF BY THIS CONSOLID ATED ORDER. FOR THE SAKE OF CONVENIENCE, WE SHALL TAKE THE FACTS RAISED IN IT(SS)A NO.11/CTK/2017, WHEREIN THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS : - BECAUSE THAT THE LEARNED ASSESSING OFFICER ERRED IN LAW AS WELL AS IN FACT BY CONFIRMING THE ADDIT ION OF RS.3,75,197/ - ON ACCOUNT OF DEPOSITS IN BANK ACCOUNT IGNORING THE CASH FLOW FILED EXPLAINING THE SOURCE OF THE SAME. HOWEVER, DURING THE COURSE OF HEARING, LD. AR OF THE ASSESSEE FILED FOLLOWING ADDITIONAL GROUNDS : - SRI HARERAM CHOWDARY 2 BECAUSE THAT THE LEARNED ASSE SSING OFFICER ERRED IN LAW AS WELL AS IN FACT BY MAKING ADDITIONS TO THE TOTAL INCOME TO THE ASSESSEE WHICH ARE NOT BASED ON ANY SEIZED MATERIAL AS THE ASSESSMENT FOR THE IMPUGNED YEAR WAS COMPLETED U/S.143(1) OF THE ACT AND THE TIME LIMIT FOR ISSUING THE NOTICE U/S.143(2) OF THE ACT HAS EXPIRED ON THE DATE OF SEARCH. 3. FACTS IN BRIEF ARE THAT THE T HERE WAS A SEARCH A ND SEIZURE OPERATION S CONDUCTED IN THE RESIDENTIAL PREMISES OF THE ASSESSEE ON 30.09.2005 AND ASSESSMENT U/S.153A OF THE ACT WAS COMPLETED O N 31.12.2007 ON A TOTAL INCOME OF RS. 7,84,030 / - . IN APPEAL, THE CIT(A) CONFIRMED THE ORDER OF AO AND THE ASSESSEE FILED AN APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL VIDE ORDER DATED 10.10.2013 SET ASIDE THE ASSESSMENT TO THE FILE OF AO WITH A DIRECTION T O FRAME DE - NOVO ASSESSMENT AS PER LAW. SUBSEQUENTLY, THE AO MADE THE ADDITION AND ASSESSED THE TOTAL INCOME OF ASSESSEE AT RS. 4,39,030/ - AND PASSED THE ORDER U/S.153A (B) /254 OF THE ACT DATED 30.03.2015. 4. AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE PREFE RRED AN APPEAL BEFORE THE CIT(A), HOWEVER, THE CIT(A) CONFIRMED THE ACTION OF AO AND DISMISSED THE APPEAL OF ASSESSEE. 5. AGAINST THE ORDER OF CIT(A), THE ASSESSEE HAS COME UP IN APPEAL BEFORE THE TRIBUNAL. 6 . BEFORE US THE LD. AR SUBMITTED , THIS ADDITIONA L GROUND PLAYS A VITAL ROLE AND HAVE A BEARING ON THE ASSESSMENT WHERE THE ASSESSMENT HAS BEEN MADE BY THE AO WITH ADDITIONS NOT BASED ON THE SEIZED MATERIAL AND ALSO THE TIME LIMIT FOR ISSUE OF NOTICE U/S.143(2) OF THE ACT WAS EXPIRED ON THE DATE OF SEARC H. THE LD. AR FURTHER SUBSTANTIATED HIS ARGUMENTS AND SUBMITTED COPY OF ACKNOWLEDGEMENT OF RETURN OF INCOME FILED FOR THE SRI HARERAM CHOWDARY 3 ASSESSMENT YEAR 200 2 - 03 & 2003 - 04 AND PRAYED FOR ADMITTING THE ADDITIONAL GROUND AND ALLOW THE APPEAL. CONTRA, LD. DR OPPOSED TO THE G ROUND AND THE MATERIAL FILED AND RELIED ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD., (1998) 229 ITR 383 (SC) ON THE FACTS EMERGED OUT OF THE ASSESSMENT PROCEEDINGS. 7 . WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WITHOUT GOING INTO THE MERITS OF THE CASE, AT THIS STAGE, WE CONSIDER IT APPROPRIATE FIRST TO DECIDE THE LEGAL GROUND OF ISSUE OF NOTICE U/S.143(2) OF THE ACT RAISED BEFORE US AS ADDITIONAL GROUND BY THE ASSESSEE. PRIMA FACIE, THE L D. AR SUPPORTED HIS ARGUMENTS BY PROVIDING THE COPIES OF THE INCOME TAX RETURN FILED AND EXPLAINED THAT THE TIME LIMIT FOR ISSUE OF NOTICE U/S.143(2) OF THE ACT HAS EXPIRED ON THE DATE OF SEARCH WHEREAS LD. DR HAS OPPOSED TO THIS ADDITIONAL GROUND. ACCORDI NGLY, WE CONSIDERING THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD (SUPRA) ADMIT THE ADDITIONAL GROUND RAISED BY THE ASSESSEE FOR THE FIRST TIME BEFORE THE TRIBUNAL AND REMIT THIS ADDITIONAL GROUND TO THE FILE OF CIT(A ) TO ADJUDICATE AND PASS A SPEAKING ORDER ON MERITS. IT IS ALSO RELEVANT TO MENTION HERE THAT IF THE CIT(A) FOUND THE NOTICE U/S.143(2) OF THE ACT HITS THE QUESTION OF LIMITATION, THEN THE ADDITIONS MADE BY THE AO WILL HAVE NO LEGS TO STAND, HOWEVER, THE A DDITIONS CAN BE MADE ON THE BASIS OF SEIZED MATERIAL. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE ARGUMENTS RAISED BY THE LD. AR, WE ARE OF THE VIEW THAT THE ADJUDICATION OF GROUNDS OF SRI HARERAM CHOWDARY 4 APPEAL RAISED BY THE ASSESSEE AGAINST TH E ADDITIONS BY THE AO AND CONFIRMED BY THE CIT(A) ARE NOT NECESSARY AT THIS STAGE AND THE ISSUE IS REMITTED TO THE FILE OF CIT(A). THUS, APPEAL FILED BY THE IS ALLOWED FOR STATISTICAL PURPOSES. 8 . SINCE SIMILAR GROUND HAS BEEN RAISED IN ITA NO. 12/CTK/2017 FOR THE ASSESSMENT YEAR 2003 - 04, FOLLOWING THE REASONING GIVEN ABOVE IN ITA NO.11/CTK/2017 FOR THE ASSESSMENT YEAR 2002 - 03, WE ALSO ALLOW THIS APPEAL OF THE ASSESSEE FOR STATISTICAL PURPOSES. 9 . IN THE RESULT, BOTH APPEALS OF ASSESSEE ARE ALLOWED FOR STAT ISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 12/10 /2017. SD/ - (N. S. SAINI) SD/ - ( PAVAN KUMAR GADALE ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER CUTTACK ; DATED 12/10 /2017 . . /PKM , SENIOR PRIVATE SECRETARY / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - 2. / THE RESPONDENT - 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//