M/s. S.K.Finance & Investment Company, Anand V. The ACIT.,Cent.Circle-1, Baroda

ITSSA 126/AHD/2009

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8570 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 07-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 31-10-2012
• Assessment Year: 2000-2001
• Appeal Filed On: 15-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K SINGH
• Keywords: Principle of natural justice
• Section: 143(3); 153A; 132

Judgement Text

, , , , C , IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, C BENCH . .. . . .. . , !' !' !' !', , , , #$ #$ #$ #$ # ## #. .. .% $% % $% % $% % $%, , , , &' ( &' ( &' ( &' ( & ' & ' & ' & ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER) IT(SS)A NO.126, 127, 128, 129 AND 130/AHD/2009 [ASSTT. YEAR : 2000-2001, 2003-04, 2004-05, 2005-0 6 AND 2006-2007] M/S.S.K.FINANCE & INVESTMENT COMPANY OPP: PEOPLES BANK PARK SARDARGUNJ ROAD, ANAND. PAN : AAJFS 2689 A /VS. ACIT, CENT.CIR.1 BARODA. ( (( (*+ *+ *+ *+ / APPELLANT) ( (( (,-*+ ,-*+ ,-*+ ,-*+ / RESPONDENT) ./ 0 1 &/ ASSESSEE BY : SHRI ASEEM THAKKAR ( 0 1 &/ REVENUE BY : SHRI D.K. SINGH 3 0 /4'/ DATE OF HEARING : 1 ST NOVEMBER, 2012 5%6 0 /4'/ DATE OF PRONOUNCEMENT : 07-12-2012 &7 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THESE FIVE APPEALS BY ASSESSEE FOR THE ASSESSMENT YEARS 2000-2001, 2003-0 4, 2004-05, 2005-06 AND 2006-2007 ARE DIRECTED AGAINST THE ORDERS OF TH E CIT(A). SINCE IDENTICAL ISSUES ARE INVOLVED IN ALL THESE APPEALS, THEY ARE DISPOSED OF WITH THIS CONSOLIDATED ORDER. 2. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSES SEE SUBMITTED THAT THE ASSESSEE RAISED ADDITIONAL GROUNDS OF APPEAL BE FORE THE CIT(A), WHICH WERE NOT ADMITTED AND ADJUDICATED UPON BY THE CIT(A ) FOR NO VALID REASONS. HE SUBMITTED THAT ADDITIONAL GROUNDS RAISE D BY THE ASSESSEE GO TO THE ROOT OF THE MATTER AND BEING LEGAL IN NATURE SH OULD HAVE BEEN ADMITTED IT(SS)A NO.126, 127, 128, 129 AND 130/AHD/2009 -2- BY THE CIT(A). THE IDENTICAL ADDITIONAL GROUNDS OF APPEAL RAISED IN ALL THE FIVE APPEALS BY THE ASSESSEE BEFORE THE CIT(A) ARE AS UNDER: 1. THE LD. A.O. HAS ERRED IN PASSING THE ORDER U/S 143(3) R.W.S. 153C WHEN IT IS MENTIONED IN THE ASSESSMENT ORDER ITSELF THAT A SEARCH OPERATION U/S. 132 OF THE INCOME-TAX ACT, 1961, HAD TAKEN PLACE ON THE APPELLANT FIRM ON 19.01.2006. THEREFORE, THE ORDER PASSED BY THE LEARNED A.O. SHOULD HAVE BEEN U/S. 153A OF THE ACT. THE ORDER PASSED U/S 153C OF THE ACT BY THE A.O. IS HAD IN LAW AND T HE ASSESSMENT SO MADE DESERVES TO BE QUASHED. 2. THE LD. A.O. HAS ERRED IN PASSING THE ORDER U/S 143(3) R.W.S. 153C OF THE INCOME-TAX ACT, 1961, WHEN IN PARA I OF THE OMER SHE SPECIFIES THAT IN THE COURSE OF SURVEY OPERATION AT THE OFFIC E PROMISES OF ONE M/S. J.K SECURITIES PVT. LTD, CERTAIN BOOKS RELATING TO THE APPELLANT FIRM WERE SEIZED. THAT THE PROCEEDINGS U/S.153C CAN ORIG INATE ONLY WHEN THERE ARE SEARCH PROCEEDINGS AND NOT OTHERWISE AND THEREFORE, THE ORDER PASSED BY THE LEARNED A.O. IS BAD IN LAW AND THE ASSESSMENT SO MADE DESERVES TO BE QUASHED. 3. THE NOTICE ISSUED U/S 153C OF THE ACT BY THE LEA RNED A.O. IS VAGUE AND NEITHER MENTIONS THE NAME OF THE SEARCHED PARTY , THE SEIZED MATERIAL AND THE NATURE OF UNDISCLOSED INCOME. THE NOTICE U/S. 153C IN FACT MENTIONS THE SEARCHED PART AS 'ANAND GROUP OF CASES'. THEREFORE, THE ASSESSMENT MADE A.O. IS BAD IN LAW AND DESERVES TO BE QUASHED. 4. THE LEARNED A.O. HAS ERRED IN NOT GRANTING THE O PPORTUNITY OF RE- EXAMINING THE PARTIES/CUSTOMERS WHOSE STATEMENTS HA VE BEEN RECORDED BY HIM DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THEREFORE, THE ASSESSMENT ORDER PASSED IS IN VIOLATION OF THE PRIN CIPLES OF NATURAL JUSTICE AND EQUITY AND DESERVES TO BE QUASHED. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED IN T HE INTEREST OF JUSTICE, THE ENTIRE ORDER OF THE CIT(A) MAY BE RESTORED TO T HE FILE OF THE CIT(A) FOR DE NOVO APPELLATE ORDER IN ACCORDANCE WITH LAW AFTER ADMIT TING THE ADDITIONAL GROUNDS OF APPEAL AND THE EVIDENCES SOUG HT TO BE FILED BY THE ASSESSEE. 3. THE LEARNED DR HAS OPPOSED THE SUBMISSIONS OF TH E LEARNED COUNSEL OF THE ASSESSEE. HE SUBMITTED THAT THE ADD ITIONAL GROUNDS OF IT(SS)A NO.126, 127, 128, 129 AND 130/AHD/2009 -3- APPEAL WERE RIGHTLY NOT ADMITTED BY THE CIT(A) BY F OLLOWING THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT. HE RELIE D ON THE DECISIONS OF THE AO AND THE CIT(A). 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND HAVE PE RUSED THE ORDERS OF THE AO AND THE CIT(A) AND ALSO THE ADDITIONAL GR OUNDS OF THE APPEAL PREFERRED BY THE ASSESSEE FOR THE ADMISSION BEFORE THE CIT(A). WE FIND THAT THE ADDITIONAL GROUNDS OF THE APPEAL SOUGHT TO BE ADMITTED BY THE ASSESSEE ARE LEGAL IN NATURE AND GO TO THE ROOT OF THE MATTER, AND THEREFORE SHOULD HAVE BEEN ADMITTED AND ADJUDICATED UPON BY T HE CIT(A). IN VIEW OF THE FACT THAT THESE ADDITIONAL GROUNDS OF T HE APPEAL WERE NOT ADMITTED AND ADJUDICATED UPON BY THE CIT(A), WE HOL D THAT IT SHALL BE IN THE INTEREST OF JUSTICE TO RESTORE THE ISSUES TO TH E FILE OF THE CIT(A) WITH DIRECTION TO ADMIT THE ADDITIONAL GROUNDS OF APPEAL AND TO PASS DE NOVO APPELLATE ORDER IN ACCORDANCE WITH LAW AFTER ALLOWI NG DUE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. WE MAKE IT CLEAR THAT WE ARE NOT DECIDING OTHER ISSUES RAISED IN THE ORIGINAL GROUNDS OF THE APPEAL OF THE ASSESSEE BEFORE US ON MERIT, AS THE WHOLE OF THE APPELLATE O RDER PASSED BY THE CIT(A) IS RESTORED TO THE FILE OF THE CIT(A) FOR PA SSING DE NOVO APPELLATE ORDER. THE ASSESSEE IS DIRECTED TO CO-OPERATE WITH THE REVENUE AUTHORITIES IN THE DISPOSAL OF ITS CASE AND MAY FILE EVIDENCE I N SUPPORT OF ITS CASE BEFORE THE CIT(A) IN ACCORDANCE WITH LAW. WE DIREC T ACCORDINGLY. 5. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE A LLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD ( #.% $% /A.MOHAN ALANKAMONY) &' ( /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT