ACIT, CC- XXVII, Kolkata, Kolkata V. M/s. Hindustan Storage & Distribution Co. Ltd., Kolkata

ITSSA 133/KOL/2011

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8499 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 2 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 04-08-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2001-2002
• Appeal Filed On: 02-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: L K S DALIYA
• Assessee Lawyers: A K TIBREWAL
• Section: 143(3); 153A

Judgement Text

I.T(SS).A. NO.: 133/ KOL. / 2011 ASSESSMENT YEAR : 2001-02 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C BENCH, KOLKATA BEFORE SHRI PRAMOD KUMAR (ACCOUNTANT MEMBER), AND SHRI MAHAVIR SINGH (JUDICIAL MEMBER) I.T.(SS)A. NO.: 133/ KOL. / 2011 ASSESSMENT YEAR : 2001-02 ASSISTANT COMMISSIONER OF INCOME TAX, ..APPELLANT CENTRAL CIRCLE-XXVII, KOLKATA, 5 TH FLOOR, 18, RABINDRA SARANI, KOLKATA-700 001 -VS.- M/S. HINDUSTAN STORAGE & DISTRIBUTION CO. LTD.... RESPONDENT, 53, CHOWRINGHEE ROAD, KOLKATA-700 071 [PAN : AAACH 7211 BJ] APPEARANCES BY: SHRI L.K.S. DALIYA, CIT(D.R.), FOR THE APPELLANT SHRI A.K. TIBREWAL, FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : AUGUST 04, 2012 DATE OF PRONOUNCING THE ORDER : AUGUST 04 , 2012 O R D E R PER PRAMOD KUMAR: 1. BY WAY OF THIS APPEAL, THE ASSESSING OFFICER HAS CHALLENGED CORRECTNESS OF COMMISSIONER OF INCOME TAX (APPEALS) S ORDER DATED 29.09.2011 IN THE MATTER OF ASSESSMENT U/S. 153A R. W.S. 143(3) OF THE INCOME TAX ACT, 1961, FOR THE ASSESSMENT YEAR 2001- 02. GRIEVANCES RAISED IN THE APPEAL ARE AS FOLLOWS :- (1) THAT IN THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW IN HOLD ING THAT WHERE NOTHING INCRIMINATING IS FOUND IN THE COURSE OF SEARCH PROCEEDINGS, THE COMPLETED ASSESSMENT CAN NO T BE I.T(SS).A. NO.: 133/ KOL. / 2011 ASSESSMENT YEAR : 2001-02 PAGE 2 OF 3 DISTURBED WITHOUT CONSIDERING THAT THE PROVISION OF SECTION 153A OF THE ACT EMPOWERS THE AO TO ASSESS OR REASSE SS THE TOTAL INCOME OF SIX ASSESSMENT YEARS PRIOR TO THE Y EAR OF SEARCH. (2) THAT ON THE FACTS AND IN THE CIRCUMSTANCES IN T HE CASE, THE LD. CIT(A) HAS ERRED IN LAW IN DELETING THE ADD ITION OF RS.17,94,690/- IN RESPECT OF DIFFERENT HEADS OF EXP ENDITURE AS DISCUSSED IN THE ASSESSMENT YEAR BY HOLDING THAT THE ADDITION DOES NOT EMANATE FROM ANY INCRIMINATING MA TERIAL FOUND DURING THE SEARCH WITHOUT CONSIDERING THAT NO SUCH CONDITION IS STIPULATED IN COMPLETING THE ASSESSMEN T OR RE- ASSESSMENT U/S. 153A OR U/S. 153C OF THE ACT. 2. LD. REPRESENTATIVES AGREED THAT THE ISSUES IN AP PEAL ARE NOW SQUARELY COVERED BY ITAT, SPECIAL BENCH, MUMBAI DEC ISION IN THE CASE OF ALL CARGO LOGISTICS LTD. VS.- DCIT (ITA NOS. 50 18 TO 5022/MUM./2010, ORDER DATED 06.07.2012), WHEREIN IT HAS BEEN HELD THAT ANY ADDITION TO THE INCOME THAT HAS ALREADY BEEN AS SESSED, THE ASSESSMENT UNDER SECTION 153A WILL BE MADE ONLY ON THE BASIS OF INCRIMINATING MATERIAL, I.E. (A) THE BOOKS OF ACCOU NTS AND OTHER DOCUMENTS FOUND IN THE COURSE OF SEARCH BUT NOT PRO DUCED IN THE COURSE OF ORIGINAL ASSESSMENT, AND (B) UNDISCLOSED INCOME OF PROPERTY DISCLOSED DURING THE COURSE OF SEARCH. AS EVIDENT F ROM THE GROUNDS OF APPEAL BEFORE US, IT IS EVEN THE CASE OF THE REVENU E THAT ANY INCRIMINATING MATERIAL WITH RESPECT TO THE ADDITION IN QUESTION WAS FOUND DURING THE COURSE OF SEARCH PROCEEDINGS. LD. D.R., HOWEVER, VEHEMENTLY CONTENDED THAT THE INTERPRETATION ACCEPT ED BY THE SPECIAL BENCH DECISION IN THE CASE OF ALL CARGO LOGISTICS L TD. (SUPRA) IS CONTRARY TO THE SCHEME OF THE ACT. BUT HE FAIRLY AC CEPTS THAT THIS DIVISION BENCH IS DUTY BOUND TO FOLLOW THE ORDER OF THE HIGHER-TIER, I.E. THE SPECIAL BENCH IN THIS CASE. I.T(SS).A. NO.: 133/ KOL. / 2011 ASSESSMENT YEAR : 2001-02 PAGE 3 OF 3 3. IN VIEW OF THE ABOVE DISCUSSIONS AND ALSO BEARIN G IN MIND THE BINDING NATURE OF SPECIAL BENCH DECISION IN THE CAS E OF ALL CARGO LOGISTICS LTD. (SUPRA), WE CONFIRM THE STAND OF THE COMMISSIONER (APPEALS), WHEREIN IT HAS BEEN HELD THAT WHERE INCR IMINATING MATERIAL FOUND IN THE COURSE OF SEARCH PROCEEDINGS RELATING TO ANY ASSESSMENT YEAR, THE COMPLETED ASSESSMENT FOR SUCH YEARS CANNO T BE DISTURBED. THE STAND SO TAKEN BY THE COMMISSIONER IS CONSISTENT WI TH THE STAND TAKEN BY THE SPECIAL BENCH, MUMBAI OF THIS TRIBUNAL, WHIC H HAS BEEN POINTED OUT EARLIER, IS A BINDING JUDICIAL PRECEDENCE FOR U S. ACCORDINGLY, GRIEVANCES OF THE ASSESSING OFFICER ARE REJECTED. 4. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH DAY OF AUGUST, 2012. SD/- SD/- MAHAVIR SINGH PRAMOD KUMAR (JUDICIAL MEMBER) (ACC OUNTANT MEMBER) KOLKATA, THE 4 TH DAY OF AUGUST, 2012 COPIES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ETC ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.