ACIT, New Delhi V. Sh. Rakesh Kumar, Prop., New Delhi

ITSSA 14/DEL/2012

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 0729 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 6 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 06-05-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 23-04-2015
• Assessment Year: misc
• Appeal Filed On: 29-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIVEK WADEKAR
• Keywords: Opportunity of being heard; Block assessment
• Section: 132; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : F : NEW DELHI BEFORE SHRI G.C. GUPTA, VICE PRESIDENT AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ITA NO. 14 /DEL / 2012 BLOCK PERIOD : 01.04.1996 TO 18.12.2002 ASSTT. COMMISSIONER OF INCOME VS. SH. RAKESH KUMAR, PROP. TAX, CENTRAL CIRCLE - 18, M/S DAILY FOODS INDIA 9, PARK ROOM NO. 327, 3 RD FLOOR, AREA, KAROL BAGH, NEW DELHI ARA CENTRE, E - 2, JHANDEWALAN EXTN., (PAN: AAHPK7643Q) NEW DELHI (APPELLANT) (RESPONDENT) APPELLAN T BY : SH. VIVEK WADEKAR, CIT (DR) RESPONDEN T BY: SH. K. SAMPATH, ADV. DATE OF HEARING: 23.04.2015 DATE OF PRONOUNCEMENT: 06.05.2015 ORDER PER SHRI INTURI RAMA RAO, A.M. : THIS IS AN APPEAL FILED BY THE REVENUE FOR THE BLOCK PERIOD 01.04.1996 TO 18.12.2002 RAISING THE FOLLOWING GROUNDS OF APPEAL: I. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED ON FACTS AND IN LAW IN DE LETING THE ADDITION OF RS. 23,28,18,587/ - MADE BY THE A.O. II. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, CIT(A) HAS ERRED IN HOLDING THAT CONSEQUENT UPON THE DECISION OF HON BLE DELHI HIGH COURT IN THE ASSESSEE S CASE IN ITA NO. 688/2009 THE ASSESSMEN T ORDER HAD BECOME BARRED BY LIMITATION, WHEREAS THE SAME ISSUE HAS BEEN DECIDED IN FAVOUR OF THE REVENUE BY HON BLE DELHI HIGH COURT IN THE CASE OF SH. RAJESH KUMAR (ASSESEE S BROTHER) IN ITA NO. 184/2009 ON EXACTLY SIMILAR FACTS HOLDING THAT STRIKING DO WN OF ORDER U/S 142(2A) DOES NOT TAKE AWAY THE ADDITIONAL TIME AVAILABLE WITH THE ASSESSING OFFICER FOR COMPLETING THE ASSESSMENT. III. THE ORDER OF THE CIT(A) IS ERRONEOUS AND IS NOT TENABLE ON FACTS AND IN LAW. 2 ITA NO. 14/DEL/2012 BLOCK PERIOD: 01.04.96 TO 18.12.02 IV. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AM END ANY/ALL ON THE GROUND OF APPEAL BEFORE OR DURING THE COURSE OF THE HEARING OF THE APPEAL. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL. S EARCH AND SEIZURE OPERATION UNDER SECTION 132 OF THE INCOME - TAX ACT, 1961 (FOR SHORT THE ACT ) WERE CONDUCTED IN THE CASE OF DELHI FOOD GROUP OF CASES ON 18.12.2002 DURING WHICH THE CASE OF THE ASSESSEE WAS ALSO COVERED. CONSEQUENTLY, NOTICE UNDER SECTION 158BC OF THE ACT WAS ISSUED ON 19.05.2003 FOR FILING RETURN OF UNDISCLOSED INCOME F OR THE BLOCK PERIOD 01.04.1996 TO 18.1 2.2002. IN RESPONSE TO THE SAME, THE ASSESSEE FILED RETURN FOR BLOCK PERIOD ON 02.06.2003 DECLARING UNDISCLOSED AT NIL. 3. SUBSEQUENTLY, VIDE ORDER DATED 03.06.2005 PASSED UNDER SECTION 144 READ WITH SECTION S 153BC/158BA OF THE ACT , THE TOTAL UNDISCLOSED INCOME W AS ASSESSED AT RS. 9,91,35,615/ - . AGAINST THIS ORDER , ON AN APPEAL FILED BY THE ASSESSEE, THE LEARNED CIT(A) - III VIDE ORDER DATED 28.02.2007 ANNULLED THE BLOCK ASSESSMENT ORDER. AGAINST THIS ORDER , THE D EPARTMENT FILED AN APPEAL BEFORE THE ITAT, DELHI WHICH DECIDED THE APPEAL VIDE ORDER DATED 25.08.2008 IN ITA NO. 101/DEL/2007. VIDE THIS ORDER THE ITAT DISMISSED THE APPEAL FILED BY THE ASSESSEE AND UPHELD THE ORDER PASSED BY LEARNED CIT(A). HOWEVER, ON A MISCELLA NEOUS APPLICATION FILED BY THE D EPARTMEN T UNDER SECTION 254(2) OF THE ACT , THE DELHI BENCH OF ITAT VIDE ORDER DATED 18.12.2009 IN MISC. APPLICATION NO. 394/DEL/2009 (ITA NO. 101/DEL/2007) SET ASIDE THE ASSESSMENT FOR FRAMING DE NOVO ASSESSMENT AF TER AFFORDING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. IT IS IN COMPLIANCE TO THE ABOVE DIRECTION OF THE ITAT , DELHI IN MISC. APPLICATION 3 ITA NO. 14/DEL/2012 BLOCK PERIOD: 01.04.96 TO 18.12.02 THAT A FRESH ASSESSMENT ORDER DATED 31.12.2010 HAS BEEN PASSED, AND WHICH IS THE SUBJECT MATTER OF THE IMPUGNED APP ELLANT PROCEEDINGS. BEING AGGRIEVED WITH THE ASSESSMENT ORDER , AN APPEAL WAS FILED BEFORE THE LEARNED CIT(A) - III, DELHI, WHO VIDE ORDER DATED 16.12.2011 ALLOWED THE APPEAL OF THE ASESSEE. 4. AGGRIEVED BY THIS ORDER, THE REVENUE CAME UP WITH THE PRESENT A PPEAL. 5. LEARNED DR VEHEMENTLY ARGUED THAT IT IS NOT BARRED BY LIMITATION THAT THE ASSESSMENT ORDER IS VERY MUCH VALID AND RELIED UPON THE ORDER OF THE ASSESSING OFFICER. 6. ON THE OTHER HAND, LEARNED AUTHORIZED REPRESENTATIVE ARGUED THAT THE ASSESSMEN T MADE IS NON - EST IN THE EYE OF LAW AND THEREFORE, THE ASSESSMENT SHOULD BE DECLARED TO BE NULLIFIED , INASMUCH AS , THE ASSESSMENT MADE WAS BARRED BY LIMITATION. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD. LEA RNED CIT(A) ANNULLED THE ASSESSMENT BY GIVING THE FOLLOWING FINDINGS: THIS ORDER OF THE HIGH COURT IS AGAINST THE DEPARTMENT S APPEAL AGAINST THE ITAT ORDER DATED 25.08.2008 WHEREBY THE TRIBUNAL HAD UPHELD THE CIT(A) S ORDER DATED 28.02.2007 ANNULLING THE BLOCK ASSESSMENT ORDER PASSED IN CASE OF THE APPELLANT ON 03.06.2005. IN THE LAST PARA OF THE ORDER DATED 06.09.2011, THE JURISDICTIONAL HIGH COURT HAS CLEARLY HELD THAT IN SO FAR AS THE ASSESSEE IS CONCERNED NO FURTHER PROCEEDINGS WERE REQUIRED IN TERMS OF THE DECISION OF THE SUPREME COURT IN CASE OF RAJESH KUMAR AND OTHERS VS. DCIT REPORTED AT (287 ITR 91 IN THIS DECISION OF THE HON BLE SUPREME COURT THE APPELLANT WAS ONE OF THE PARTY). THE APPELLANT HAS ALSO ENCLOSED THE ORDER OF JURISDICTIONAL HIGH COURT IN SUSHILA MILK SPECIALTIES P. LTD. IN ITA NO. 1218/2010 DATED 06 .09.2011. IN THIS MATTER SUSHILA MILK SPECIALTIES P. LTD. WAS THE APPELLANT KEEPING IN VIEW THE FACT THAT THE TRIBUNAL S SPECIAL BENCH VIDE ORDER DATED 30.10.09 IN AN APPEAL FILED BY THE APPELLANT HAD SET ASIDE THE BLOCK ASSESSMENT ORDER FOR A FRESH ORDER BEING PASSED 4 ITA NO. 14/DEL/2012 BLOCK PERIOD: 01.04.96 TO 18.12.02 BY THE ASSESSING OFFICER. AGAINST THIS ORDER OF THE SPECIAL BENCH OF THE ITAT, SUSHILA MILK SPECIALTIES P. LTD. HAD GONE IN APPEAL BEFORE THE HIGH COURT WHICH HAS BEEN ALLOWED IN ITA NO. 1218/2010 IN FAVOUR OF THIS APPELLANT AND AGAINST THE DE PARTMENT. THUS ON A READING OF BOTH THESE ORDERS OF THE HIGH COURT THE POSITION WHICH EMERGES IS THAT THE INITIAL ASSESSMENT ORDER PASSED BY THE AO IN CASE OF THE APPELLANT FOR THE IMPUGNED BLOCK PERIOD ON 03.06.2005 AND WHICH HAS BEEN HELD AS ANNULLED BY THE CIT(A) VIDE APPELLATE ORDER DATED 28.02.2007 IS NOW UPHELD AS ANNULLED BY THE JURISDICTIONAL HIGH COURT. IN A RESULT, THE DE NOVO ASSESSMENT ORDER PASSED ON 31.12.2010 IN TERMS OF THE ITAT DECISION IN M.A. NO. 394/DEL/2009 DATED 18.12.2009 BECOMES NON - EST IN EYES OF LAW. CONSEQUENTLY, IN TERMS OF THE ORDER OF JURISDICTIONAL HIGH COURT DATED 06.09.2011, THE PRESENT APPEAL FILED BY THE ASSESSEE IS ALLOWED IN GROUND OF APPEAL NO. 1. 8. THE ABOVE FINDINGS REMAINED UNCONTROVERTED AND FURTHER WE NOTICE D T HAT THE HON BLE SUPREME COURT ALSO DISMISSED THE SPECIAL LEAVE PETITION FILED BY THE REVENUE IN THE CASE OF CIT VS. SUSHILA MILK SPECIALTIES P. LTD., BEING NUMBERED AS PETITION FOR SPECIAL LEAVE TO APPEAL (C) NO. 20106/2012, VIDE ORDER DATED 12.01.2015. H ENCE, THE ORDER IN THE CASE OF RESPONDENT ASSESSEE ALSO ATTAINED FINALITY. THEREFORE, WE DISMISS THE GROUNDS OF APPEAL FILED BY THE REVENUE. 9. IN THE RESULT, THE APPEAL IS DISMISSED . THE DECISION IS PRONOU NCED IN THE OPEN COURT ON 6 T H M A Y , 2015 . S D / - S D / - (G.C. GUPTA) (INTURI RAMA RAO) VICE PRESIDENT ACCOUNTANT MEMBER DATED: 6 T H M A Y , 2015. RK/ - COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI