The ACIT, Circle-3, Surat V. Smt. Savitaben N.Oza, Surat

ITSSA 132/AHD/2010

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8081 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 22-06-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 30-05-2012
• Assessment Year: misc
• Appeal Filed On: 11-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Keywords: Document seized; Question of law; Block assessment; Documents seized
• Section: 260A; 132

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD , .'# ,$% $ & BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER (SS) ./ I.T.(SS)A. NO.132/AHD/2010 ( BLOCK PERIOD 1990-91 TO 1999-2000 AND UPTO 29.10.19 99 ) ACIT CIRCLE-3 SURAT # # # # / VS. SMT.SAVITABEN N.OZA A-701, YOGI COMPLEX NEW RANDER ROAD SURAT ( $% ./)* ./ PAN/GIR NO. : - ( (+ / // / APPELLANT ) .. ( ,-(+ / RESPONDENT ) (+ . $ / APPELLANT BY : SHRI B.L.YADAV, SR.D.R. ,-(+ / . $ / RESPONDENT BY : -NONE- #0 / % / / / / DATE OF HEARING : 30.5.2012 1'2 / % / DATE OF PRONOUNCEMENT : 22/06/2012 $3 / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE REVENUE ARISING FR OM THE ORDER OF LEARNED CIT(APPEALS)-II, SURAT DATED 27.11.2009 AND THE REVENUES ONLY GROUND OF APPEAL IS AS FOLLOWS:- 1) ON THE FACTS AND CIRCUMSTANCE OF THE CASE AND I N LAW, THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITION MADE BY THE A.O. OF RS.3,11,190 ON ACCOUNT OF UNACCOUNTED ON-MONEY PAID BY THE ASSESSE E FOR PURCHASE OF FLAT A YOGI COMPLEX FROM OHM ORGANIZERS AND OHM DEV ELOPERS HOLDING THAT THERE WAS INORDINATE DELAY IN INFLATIO N OF ACTION U/S.158BD AND THEREBY THE PROCEEDINGS INITIATED U/S.158BD IS INVALID. IT(SS)A NO.132/AHD/2 010 ACIT VS. SMT.SAVITABEN N.OZA BLOCK PERIOD 90-91 TO 99-2000 AND UPTO 29.10.99 - 2 - 2. THE ISSUE RAISED BY THE REVENUE HAS ALREADY BEEN DECIDED BY RESPECTED BENCHES IN NUMBER OF APPEALS, THEREFORE, WE HAVE DECIDED TO PROCEED EX-PARTE QUA THE ASSESSEE, AFTER HEARING THE LD.SR.DR MR.B.L.YADAV WHO HAS PLACED RELIANCE ON THE ORDER O F THE ASSESSING OFFICER. 3. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING ASSESSMENT ORDER PASSED U/S.158BC R.W.S.158BD OF THE I.T. ACT, 1961 DATED 29/01/2009 ARE THAT, THE ASSESSING OFFICER HAS NOTED THAT A SE ARCH U/S.132 WAS CARRIED OUT AT THE BUSINESS PREMISE OF M/S.OHM DEVELOPERS, SURAT ON 29/10/1999. IT HAS ALSO BEEN NOTED THAT THE ABOVE REFERRED ASSESSEE HAS PURCHASED FLATS AND ALLEGEDLY PAID ON-MONEY TO TH E SAID BUILDER. THE ADMITTED FACTUAL POSITION IS THAT THE NOTICE U/S.15 8BD R.W.S. 158BC WAS DATED 22.01.2007 WHICH WAS SERVED UPON THE ASSESSEE ON 23/01/2007. THE ASSESSEE HAS AGITATED BEFORE US ON TWO COUNTS, FIRST, THAT THERE WAS NO SATISFACTION NOTE RECORDED BY THE ASSESSING OFFICER IN POSSESSION OF THE SEARCH MATERIAL HAVING JURISDICTION OF THE SAID BUI LDER. FOR THIS LEGAL PROPOSITION, RELIANCE WAS PLACED ON MANISH MAHESHWA RI 289 ITR 341(SC). THE SECOND CONTENTION WAS THAT THE PROCEE DINGS IN THE PRESENT CASE WAS INITIATED AFTER THE COMPLETION OF THE ASSE SSMENT, HENCE SUCH PROCEEDINGS U/S.158BD WERE BELATED AND NOT GOOD IN LAW AND FOR THIS LEGAL PROPOSITION, RELIANCE WAS PLACED ON KHANDUBHA I VASANJI DESAI & ORS. VS. DY.CIT 236 ITR 73(GUJ.). ALTHOUGH, THE AS SESSING OFFICER HAS NOT ACCEPTED THOSE LEGAL PROPOSITION AND THE ADDITI ON WAS MADE, HOWEVER, WHEN THE ISSUE WAS CARRIED BEFORE THE FIRST APPELLA TE AUTHORITY, THE LD.CIT(A) HAS HELD THE PROCEEDINGS AS BAD IN LAW PR IMARILY ON THE GROUND IT(SS)A NO.132/AHD/2 010 ACIT VS. SMT.SAVITABEN N.OZA BLOCK PERIOD 90-91 TO 99-2000 AND UPTO 29.10.99 - 3 - THAT THE ASSESSMENT OF M/S.OHM DEVELOPERS WAS COMPL ETED EARLIER AND THE NOTICES U/S.158BD WERE LATE BY 5 YEARS. THE PR OCEEDINGS WERE QUASHED, HENCE THE REVENUE IS NOW BEFORE US. 4. FROM THE SIDE OF THE RESPONDENT, FOLLOWING ORDER S WERE RELIED UPON:- 1. IT(SS)A NO.10 & 28/AHD/2008 BLOCK PERIOD 90-91 TO 1999-00 & OTHERS ITAT D BENCH AHMEDABAD ORDER IN THE CASE OF VIMAL VADILAL SHAH VS. DCIT ORDER DATED 21.5.2010 2.IT(SS)A NO.65/AHD/2007 BLOCK PERIOD FROM 90-91 TO 1999-2000 ITAT C BENCH AHMEDABAD ORDER IN THE CASE OF BALVANTRAI V.MEHTA VS. ACIT ORDER DATED 16.12.2010 3. MA NO.155/AHD/2008 (IN ITSS A NO.81/AHD/2007) BLOCK PERIOD 1.4.89 TO 29.10.99 ITAT D BENCH AHMEDABAD ORDER IN THE CASE OF AMITBHAI B.SOJITRA VS. ACIT ORDER DATED 7.1.2008 4. IT(SS)A NO.95 & 96/AHD/2007 BLOCK ASSESSMENT PERIOD FROM 30.10.89 TO 29.10.99 ITAT D BENCH AHMEDBAD ORDER IN THE CASE OF JAYESH T.DESAI VS. ACIT ORDER DATED 28.05.2010 5. IT(SS)A NO.66/AHD/2007 & 72/AHD/2007 BLOCK PERIOD ASSESSMENT YEAR 90-91 TO 99-2000 & UPTO 29.10.99 ITAT D BENCH AHMEDABAD ORDER IN THE CASE OF SHAILESH M.DESAI VS. DCIT ORDER DATED 15.10.2010 6.GUJARAT HIGH COURT DECISION KHANDUBHAI VASANJI DE SAI & ORS. VS. DY.CIT (236 ITR 73)(GUJ.) 4.1. ALL THESE CASES ARE COVERED BY SEARCH OPERAT ION WHICH WAS CONDUCTED ON M/S.OHM ORGANIZERS. THE TRIBUNAL HAS NOTED THAT SEARCH IN THE CASE OF OHM DEVELOPERS WAS CARRIED OUT ON 29 .10.1999. THE TRIBUNAL HAS FURTHER NOTED THAT THE ASSESSMENT IN T HE CASE OF OHM DEVELOPERS WAS COMPLETED ON 30.11.2001. THEREFORE, FOLLOWING MANISH MAHESHWARI 289 ITR 341 (SC)[SUPRA], THE SEVERAL RES PECTED CO-ORDINATE IT(SS)A NO.132/AHD/2 010 ACIT VS. SMT.SAVITABEN N.OZA BLOCK PERIOD 90-91 TO 99-2000 AND UPTO 29.10.99 - 4 - BENCHES HAVE UNANIMOUSLY HELD THAT THE BELATED ISSU ANCE OF NOTICE U/S.158BD WAS BARRED BY LIMITATION. OUT OF THE LIS T OF THE ORDERS REPRODUCED ABOVE, WE HEREINBELOW REPRODUCE THE RELE VANT PARAGRAPHS FROM THE ORDER OF DCIT VS. SHRI SHAILESH M.DESAI(SU PRA) AS UNDER:- 6. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE A RE OF THE VIEW THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE O RDER OF ITAT, AHMEDABAD BENCH 'D' (CAMP AT SURAT) IN THE CASE OF VIMAL VADILAL SH AH & ORS (SUPRA) IN WHICH THE TRIBUNAL AT PARAGRAPH 11 OF THE ORDER HELD AS UNDER :- '11. IN E.J. ULAHANNA V. ACIT IN IT A NO.19/AHD/2007 PRONOUNCED ON 18-03-2009, FOLLOWING THE DECISION OF SPECIAL BE NCH IN THE CASE OF MANOJ AGARWAL (SUPRA) HELD THAT WITHOUT THERE BEING SATIS FACTION RECORDED PRIOR TO COMPLETION OF ASSESSMENT OF THE PERSON SEARCHED PRO CEEDINGS SO INITIATED U/S 158BD OF THE ACT WILL NOT BE VALID. IN THAT CAS E NOTICE U/S 158BD OF THE ACT WAS ISSUED ON 10-06-2004. BUT SEARCHED AGAINST OHM DEVELOPERS WAS CARRIED OUT ON 29-10-1999, THEREFORE ASSESSMENT U./ S 158BD THEREOF COMPLETED AFTER 31-10-2001 COULD NOT BE HELD VALID. IN THE CASE OF SHRI VISHNUBHAI R BAROT V. ACIT IN IT(SS)A NO.104/AHD/20 09 ITAT AHMEDABAD 'D' BENCH PRONOUNCED ON 18-12-2009, IT WAS HELD, FO LLOWING THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF MANISH MAHESHW ARI V. ACIT (2007) 289 ITR 341 (SC) AND MANOJ AGARWAL (SUPRA) THAT IF THE ASSESSMENT U/S.158BC OF THE ACT IN THE CASE OF PERSON SEARCH ( OHM DEVELOPERS) WAS COMPLETED ON 30-11-2001 THEN ISSUING NOTICE U/S 158 BD OF THE ACT ON 29-03- 2006 AGAINST ASSESSEE IS BARRED BY LIMITATION. SIMI LAR VIEW WAS TAKEN BY THE ITAT AHEMDABAD BENCH IN IT(SS)A NO.25/AHD/2007 IN T HE CASE OF ADIL PARVEZ RANDERIA V. ACIT, CC-3(1), SURAT PRONOUNCED ON 01-09-2008. FOLLOWING THESE DECISIONS WE HOLD THAT THE BLOCK AS SESSMENT FRAMED IN CASE OF ALL THE ABOVE ASSESSEE ARE NOT LEGALLY VALID AND THEREFORE ARE QUASHED FOR THE REASON THAT NOTICES U/S 158BD OF THE ACT WERE I SSUED IN THESE CASES LONG AFTER COMPLETION OF ASSESSMENT IN THE CASE OF PERSO N SEARCHED I.E. OHM DEVELOPERS.' 7. WE MAY ALSO POINT OUT THAT RECENTLY THE HON'B LE PUNJAB & HARYANA HIGH COURT IN ITS UNREPORTED JUDGMENT IN ITA NO. 379 OF 2010 DATE D 25-08-2010 IN THE CASE OF CIT-I, LUDHIANA VS M/S PARVEEN FABRICS PVT LTD DISM ISSED THE APPEAL FILED BY THE DEPARTMENT BY PASSING THE FOLLOWING ORDER: '1. THIS APPEAL HAS BEEN PREFERRED BY THE REVENUE U NDER SECTION 260A OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT') AGAIN ST THE ORDER OF THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH (B) , CHANDIGARH (HEREINAFTER REFERRED TO AS 'THE TRIBUNAL') PASSED IN I.T.(SS)A. NO19/CHAND/2009 DATED 127.8.2009 FOR THE BLOCK PERI OD 01.04..1996 TO 05.02.2003, PROPOSING TO RAISE THE FOLLOWING SUBSTA NTIAL QUESTION OF LAW:- IT(SS)A NO.132/AHD/2 010 ACIT VS. SMT.SAVITABEN N.OZA BLOCK PERIOD 90-91 TO 99-2000 AND UPTO 29.10.99 - 5 - 'WHETHER ON THE FACTS AND IN LAW, THE HON'BLE INCOM E TAX APPELLATE TRIBUNAL WAS JUSTIFIED IN HOLDING THE REC ORDING OF SATISFACTION U/S 158BD BY THE ASSESSING OFFICER OF THE PERSON SEARCHED AND CONSEQUENCE ISSUANCE AND SERVICE OF NO TICE U/S 158BDE ON 2.12.2006 WAS BELATED AND BEYOND THE PERI OD PRESCRIBED BY LAW WHEN THE SECTION 158 BD READ WITH SECTION 158BE DOES NOT SPECIFY THAT SATISFACTION HAS TO BE RECORDED BY THE ASSESSING OFFICER BEFORE COMPLETION OF ASSESSMENT U /S 158BC OF THE INCOME TAX ACT, 1961 ?' 2 A SEARCH WAS CONDUCTED ON 5.2.2003 AT THE RESIDE NCE OF ONE S.K. BHATIA, AND FROM THE SEIZED DOCUMENTS AND AFTER FIN ALIZING BLOCK ASSESSMENT AGAINST THE SEARCHED PERSON ON 28.2.2005 , PROCEEDINGS WERE ALSO TAKEN AGAINST THE RESPONDENT AFTER RECORDING S ATISFACTION ON 31.3.2006. NOTICE UNDER SECTION 158BD WAS ISSUED ON 2.12.2006 WHICH WAS CONTESTED BY THE RESPONDENT ON THE GROUND THAT THE SATISFACTION NOTE ITSELF WAS AFTER CONCLUSION OF THE PROCEEDINGS AND NOT DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THIS PLEA WAS UPHELD BY THE CIT(A) FOLLOWING EARLIER JUDGMENT FO THE TRIBUNAL IN MANOJ AGGARWAL V. DCIT (2008) 113 KTD 377 (DEL)(SB). THE TRIBUNAL AFFIRMED THE SAID VIEW. 3. WE HAVE HEARD LEARNED COUNSEL FOR THE REVE NUE. 4. AN IDENTICAL MATTER WAS CONSIDERED BY THIS COURT IN ORDER DATED 207.2010 IN ITA NO.591 OF 2009, COMMISSIONER OF INCOME-TAX-L, LUDHIANA V. MRIDULA, PROP. M/S DHRUV FABRICS, LUDHI ANA AND IT WAS OBSERVED: 'THE ACT NO WHERE SPECIFICALLY PRESCRIBES ANY TIME LIMIT OR LIMITATION FOR INITIATION OF PROCEEDINGS UNDER SECTION 158BD O F THE ACT OR FOR RECORDING OF SATISFACTION BEFORE TAKING ACTION UNDE R THAT PROVISION. THE PLAIN AND REASONABLE CONSTRUCTION THAT CAN BE P LACED ON THE AFORESAID PROVISION WOULD BE THAT THE RECORDING OF SATISFACTION FOR TAKING ACTION AGAINST ANY OTHER PERSON UNDER SECTIO N 158BD OF THE ACT HAS TO BE BETWEEN INITIATION OF PROCEEDINGS UND ER SECTION 158BC AND BEFORE COMPLETION OF BLOCK ASSESSMENT UND ER SECTION 158BC OF THE ACT IN THE CASE OF THE PERSON SEARCHED I WOULD, THUS, MEAN THAT THE ACTION CONTEMPLATED UNDER SECTION 158 BD OF THE ACT AGAINST A THIRD PARTY TO A SEARCH, IS NECESSARILY T O BE DURING THE COURSE OF BLOCK ASSESSMENT PROCEEDINGS UNDER SECTIO N 158BC OF THE SEARCHED PERSON. IT CANNOT BE AFTER THE CONCLUS ION OF THE SAME AS THERE IS NO OCCASION FOR AN ASSESSING OFFICER TO EXAMINE THE SEIZED MATERIAL OR DOCUMENTS OF THE SEARCHED PERSON WHEN THE BLOCK ASSESSMENT PROCEEDINGS HAVE CONCLUDED AND NO OTHER PROCEEDINGS ARE PENDING BEFORE HIM. IF ANY OTHER TI ME LIMIT IS READ IT(SS)A NO.132/AHD/2 010 ACIT VS. SMT.SAVITABEN N.OZA BLOCK PERIOD 90-91 TO 99-2000 AND UPTO 29.10.99 - 6 - IN THE PROVISIONS / STATUTE, IT SHALL LEAD TO ANOMA LY AND WOULD BE ARBITRARY AND UNREASONABLE. IT COULD NOT BE READ IN THE PROVISION THAT WHERE BLOCK ASSESSMENT UNDER SECTION 158BC OF THE ACT IN THE CASE OF AN ASSESSEE AGAINST WHOM ACTION UNDER S ECTION 132 OR 132A OF THE ACT HAD BEEN CARRIED OUT IS FINALIZE D, REVENUE CAN TAKE ACTION AT ANY TIME IN THE ABSENCE OF ANY SPECI FIC LIMITATION PRESCRIBED IN THE STATUTE. A CONSTRUCTION WHICH LEA DS TO SUCH AN ANOMALY SHOULD BE AVOIDED.' 5. THE VIEW TAKEN BY THE TRIBUNAL IS, THUS, I N ACCORDANCE WITH THE VIEW TAKEN BY THIS COURT. NO SUBSTANTIAL QUESTION OF LAW ARISES. 6. THE APPEAL IS DISMISSED.' 8. CONSIDERING THE FACTS OF THE CASE IN THE LIGHT O F THE ABOVE DECISIONS, WE DO NOT FIND ANY JUSTIFICATION FOR INITIATION OF BLOCK ASSE SSMENT PROCEEDINGS U/S 158BD OF THE IT. ACT AGAINST THE ASSESSEE AFTER LONG GAP OF COMPLETION OF THE ASSESSMENT IN THE CASE OF PERSONS SEARCHED, VIZ. M/S OHM DEVEL OPERS. WE ACCORDINGLY SET ASIDE THE ORDER OF AUTHORITIES BELOW AND QUASH THE SAME. AS A RESULT, GROUNDS 1 & 2 OF THE APPEAL OF THE ASSESSEE ARE ALLOWED. 4. FOLLOWING THE AFORESAID DECISION(S) OF THE TRI BUNAL, WE DISMISS THE GROUND RAISED BY THE REVENUE. 5. IN THE RESULT, REVENUES APPEAL IS DISMISS ED. SD/- SD/- ( .'# ) ( ) $% ( A. MOHAN ALANKAMONY ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIA L MEMBER AHMEDABAD; DATED 22/ 06 /2012 4..#, .#../ T.C. NAIR, SR. PS IT(SS)A NO.132/AHD/2 010 ACIT VS. SMT.SAVITABEN N.OZA BLOCK PERIOD 90-91 TO 99-2000 AND UPTO 29.10.99 - 7 - $3 / ,5 6$52 $3 / ,5 6$52 $3 / ,5 6$52 $3 / ,5 6$52/ COPY OF THE ORDER FORWARDED TO : 1. (+ / THE APPLICANT 2. ,-(+ / THE RESPONDENT 3. 7 / CONCERNED CIT 4. 7() / THE CIT(A)-II, SURAT 5. 5:; ,# , , / DR, ITAT, AHMEDABAD 6. ; <0 / GUARD FILE. $3# $3# $3# $3# / BY ORDER, -5 , //TRUE COPY// = == =/ // / ) ) ) ) ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION ON 22.6.12 (DICTATION-PAD PAGES 2 ATTACHED) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 22.6.12 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S2.7.12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 2.7.12 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER