Emkay Fabricators & Finvest Pvt. Ltd., Kolkata V. ACIT, CC-XXIII, KOLKATA, Kolkata

ITSSA 125/KOL/2004

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0244 (ITAT-KOLKATA)
• Duration Of Justice: 9 year(s) 9 month(s) 21 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 24-06-2014
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 02-09-2004
• Court: TRIBUNAL
• Department Lawyers: N O N E
• Assessee Lawyers: R CHOWDHURY
• Keywords: Document seized; Opportunity of being heard; Principle of natural justice; Block assessment; Documents seized
• Section: 144

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA () BEFORE , /AND , ! ) [BEFORE SHRI MAHAVIR SINGH, JM & SHRI SHAMIM YAHYA, AM] ( !' # '$ ) % / I.T(SS).A NO.125/KOL/2004 !& '( )*/ BLOCK PERIOD: 1991-92 TO 2000-01 EMKAY FABRICATORS & FINVEST (PVT.) LTD. VS. ASSTT . COMMISSIONER OF INCOME-TAX, (PAN: AAACE7421Q) C.C. XXIII, KOLKATA (,- /APPELLANT ) (./,-/ RESPONDENT ) DATE OF HEARING: 24.06.2014 DATE OF PRONOUNCEMENT: 24.06.2014 FOR THE APPELLANT: SHRI R. CHOWDHURY, FCA FOR THE RESPONDENT: N O N E / ORDER PER SHRI MAHAVIR SINGH, JM : THIS APPEAL BY REVENUE IS ARISING OUT OF ORDER OF C IT(A), CENTRAL-III, KOLKATA IN APPEAL NO. 414/CC-XXIII/CIT(A)C-III/2002-2003 DATED 19.03. 2004. ASSESSMENT WAS FRAMED BY ACIT, C.C-XXIII, KOLKATA U/S. 144 READ WITH 158BC O F THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 1991- 92 TO 2000-01 VIDE HIS ORDER DATED 31.01.2003. 2. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE BLOCK ASSESSMENT FOR BLOCK PERIOD 01.04.1992 TO 24.10.2000 WAS FRAMED BY THE A O U/S. 158BC READ WITH SECTION 144 OF THE ACT VIDE HIS ORDER DATED 31.01.2003 IN CONSEQUE NCE TO SEARCH ACTION CONDUCTED U/S. 132(1) OF THE ACT ON 24.10.2000. LD. COUNSEL FOR THE ASSE SSEE STATED THAT AFTER SEARCH ASSESSEE REQUESTED THE AO TO GIVE COPIES AND DOCUMENTS SEIZE D SO THAT RETURN U/S. 158BC OF THE ACT CAN BE PREPARED. THIS FACT IS NOTED BY THE AO IN HIS B LOCK ASSESSMENT ORDER PARA 2 PAGE 2 AND THE RELEVANT PORTION READS AS UNDER: ON 18-12-2002 A LETTER WAS RECEIVED CONTAINING THE REQUEST OF ASSESSEE TO MAKE ARRANGEMENTS TO HAND OVER THE DOCUMENTS/PHOTO COPIE S OF SEIZED DOCUMENTS. ASSESSEE WAS ADVISED TO COLLECT THE COPY OF THE SEIZED DOCUM ENTS ON 19.12.2002. HOWEVER, ASSESSEE FAILED TO COLLECT THE SEIZED DOCUMENT. A LETTER ON 13.01.2003 WAS ISSUED TO THE ASSESSEE GIVING IT A FINAL CHANCE TO EXPLAIN THE TRANSACTION S AND DEPOSITS IN THE BANK A/CS. ON 20.01.2003 A LETTER WAS RECEIVED BY POST ASKING THA T COPY OF THE SEIZED DOCUMENT SHOULD 2 IT(SS)A NO. 125/K/2004 EMKAY FABRICATOR & FINVEST P. LTD. BP 1991-92 TO 2 000-01 BE HANDED OVER. ON THE SAME ASSESSEE WAS INFORMED IN WRITING TO COLLECT THE DOCUMENTS WHICH WAS COLLECTED BY ITS NOMINEE ON 21.01.2003. HOWEVER, NO EXPLANATION REGARDING THE TRANSACTIONS REFLECTED IN SEIZED DOCUMENTS AND SOURCES OF THE CASH DEPOSITED IN THE VARIOUS BANK A/C. WAS FURNISHED BY THE ASSESSEE. APPARENTLY IT SEEMS FROM THE ABOVE NOTING OF THE AO IN THE BLOCK ASSESSMENT ORDER, THAT PRACTICALLY, THE ASSESSEE WAS NOT GIVEN COPIES OF S EIZED DOCUMENTS. THE ASSESSEE BEFORE US FROM THE VERY BEGINNING CONTENDING THAT AO HAS NOT PROVIDED COPIES OF SEIZED DOCUMENTS AND THESE SEIZED RECORDS ARE VITAL FOR MAKING OF RETURN OF BLOCK PERIOD FOR BLOCK ASSESSMENT IN THE CASE OF ASSESSEE, WHICH WERE NEVER PROVIDED BY THE AO. THE ASSESSEE FILED REQUEST LETTERS DATED 05.11.2012, 30.01.2013, 18.06.201309.07.2013, 12.08 .2013, 13.08.201321.11.2013, 09.12.2013, 19.06.2014, 17.06.2014, 13.05.2014, 29. 01.2014 AND 10.03.2014 BEFORE US ALSO AND IN TURN WE DIRECTED LD DR AT THOSE POINTS OF TI ME TO PROVIDE WITH THE COPIES OF SEIZED MATERIAL TO THE ASSESSEE BUT IT SEEMS OUR EFFORTS A LSO FAILED. THE REQUEST LETTERS ARE IDENTICAL AND RELEVANT WORDING READS AS UNDER: THE ABOVE CASE ORIGINALLY WAS UNDER YOUR JURISDICT ION, LATER ON IT WAS TRANSFERRED TO CIRCLE 3. AS YOU ARE FULLY AWARE THAT THE ASSESSEE COMPANY IS CONTESTING AGAINST THE DEMAND BEFORE HONBLE ITAT. THE HONBLE TRIBUNAL HA S RECALLED THE CASE FOR FRESH HEARING. AS THERE ARE NO RECORD WITH THE PRESENT JU RISDICTION AND ALSO THERE IS NO RECORD TRACEABLE INDICATING THE TRANSFER OF ABOVE DOCUMENT TO THE PRESENT JURISDICTION. SO IT IS PRESUMED THAT THESE RECORDS ARE STILL AT YOUR END. YOU ARE ALSO AWARE THAT ON NUMBER OF OCCASION THE ASSESSEE COMPANY HAS APPLIED BEFORE YO UR GOOD SELF FOR ISSUANCE OF CERTIFIED COPY OF SEIZED RECORD AND DOCUMENT AND NOTE SHEET & STATEMENT. IN LACK OF NON AVAILABILITY OF RECORDS THE ASSESSEE COMPANY IS UNA BLE TO MAKE OUT THE CASE BEFORE THE AUTHORITY. SO WE ONCE AGAIN REQUEST YOU TO ISSUE US THE CERTIF IED COPY OF ALL SEIZED RECORDS AND DOCUMENTS AND COMMUNICATE US THE NECESSARY CHANGE I N THIS RESPECT. YOUR EARLY ACTION IN THIS REGARD SHALL BE HIGHLY APPRECIATED. 3. IN TERM OF THE ABOVE, LD. COUNSEL FOR THE ASSESS EE STATED THAT THE BLOCK ASSESSMENT WAS COMPLETED U/S. 144 OF THE ACT EX PARTE AND WITHOUT PROVIDING COPIES OF SEIZED DOCUMENTS. HENCE, THERE IS A VIOLATION OF NATURAL JUSTICE AND ASSESSEE SHOULD BE PROVIDED REASONABLE OPPORTUNITY OF BEING HEARD. ON THE OTHER HAND, THE RE WAS NONE TO REPRESENT THE ASSESSEE DESPITE THE FACT THAT THIS CASE IS TO BE REPRESENTED BY CIT , DR. ON QUERY FROM THE BENCH, LD. SR. DR SMT. RENU BISWAS STATED THAT SHE HAS NO KNOWLEDGE A S TO WHO WILL ARGUE THIS CASE AND TO WHOM THIS CASE IS ALLOTTED. HOWEVER, SHE DENIED THAT TH IS CASE IS ALLOTTED TO HER. IT SEEMS THAT THE REVENUE IS NOT INTERESTED IN ARGUING THE CASE. AS THE FACTS ARE CLEAR FROM THE ABOVE THAT THE BLOCK ASSESSMENT WAS COMPLETED EX PARTE U/S. 144 OF THE ACT AND EVEN SEIZED MATERIAL WAS NOT PROVIDED BY REVENUE TO THE ASSESSEE, SO HE COULDNT ASSESS THE DOCUMENTS IN TERM OF THE ABOVE. 3 IT(SS)A NO. 125/K/2004 EMKAY FABRICATOR & FINVEST P. LTD. BP 1991-92 TO 2 000-01 ACCORDINGLY, WE SET ASIDE THIS BLOCK ASSESSMENT AND ALSO DIRECT THE AO TO REDO THE BLOCK ASSESSMENT AFTER PROVIDING ALL SEIZED DOCUMENTS TO ASSESSEE. NEEDLESS TO SAY, THE REVENUE WILL SERVE THE COPIES OF SEIZED DOCUMENTS ON THE ASSESSE E BEFORE THE RESTARTING OF BLOCK ASSESSMENT PROCEEDINGS. IN TERM OF THE ABOVE, THE BLOCK ASSESS MENT IS SET ASIDE DE NOVO AND APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 4. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- SD/- , ! , (SHAMIM YAHYA ) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 24TH JUNE, 2014 01 '2' 3 JD.(SR.P.S.) 4 .5 6 5)7- COPY OF THE ORDER FORWARDED TO: 1 . ,- / APPELLANT EMKAY FABRICATORS & FINVEST (PVT.) LTD. , 187, RABINDRA SARANI, 1 ST FLOOR, ROOM NO. 52, KOLKATA-700 007 2 ./,- / RESPONDENT ACIT, CC.XXIII, KOLKATA. 3 . ' ( )/ THE CIT(A), KOLKATA 4. 5. ' / CIT KOLKATA 5=> .' / DR, KOLKATA BENCHES, KOLKATA /5 ./ TRUE COPY, '?/ BY ORDER, ' /ASSTT. REGISTRAR .