M/s Bengal Emta Coal Mines Ltd., Kolkata V. DCIT, CC-XVI, KOLKATA, Kolkata

ITSSA 14/KOL/2014

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 3469 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 9 month(s) 6 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 03-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 04-05-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 28-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANAND R BAIWAR
• Assessee Lawyers: L N MALIK; MANISH MALIK ARS
• Section: 143(3); 153A

Judgement Text

1 IT(SS)A NOS.11-15/KOL/2014 BENGAL EMTA COAL MINES LTD., AYS 2003-04 TO 2007-08 , A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE .., /AND , ) [BEFORE SHRI A. T. VARKEY, JM & SHRI WASEEM AHMED, AM] I.T(SS).A NOS. 11 TO 15/KOL/2014 / ASSESSMENT YEARS: 2003-04 TO 2007-08 M/S. BENGAL EMTA COAL MINES LTD. (PAN: AABCB2949R) VS. DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-XVI, KOLKATA ( /APPELLANT ) ( !' / RESPONDENT ) DATE OF HEARING 11.10.2017 DATE OF PRONOUNCEMENT 03.11.2017 FOR THE ASSESSEE/ S/SHRI L. N. MALIK & MANISH MALIK , ARS FOR THE REVENUE/ !' SHRI ANAND R. BAIWAR, CIT, DR / ORDER PER SHRI A.T.VARKEY, JM ALL THESE APPEALS PREFERRED BY THE ASSESSEE ARE AGAINST THE SEPARATE ORDERS OF THE CIT(A), CENTRAL-II, KOLKATA, ALL DATED 18.11.2013 F OR AYS. 2003-04 TO 2007-08. 2. IN THESE APPEALS THE COMMON GROUND NO. 1 RELATES TO THE LEGAL ISSUE THAT THE AO CANNOT ADD BACK ITEMS OF REGULAR ASSESSMENTS IN THE PROCEEDINGS U/S 153A OF THE ACT WHEN THE FACT REMAINS THAT THESE ASSESSMENTS WERE NOT PE NDING (SO NOT ABATED) BEFORE THE AO ON THE DATE OF SEARCH I.E. 15.01.2009. IN ORDER TO APP RECIATE THE FACTS CLEARLY THE CHART MADE FOR THE AFORESAID ASSESSMENT YEARS ARE REPRODUCED BELOW : ASSTT. YEAR DATE OF FILING ORIGINAL RETURN DATE OF ORIGINAL ASSESSMENT ASST. COMPLETED U/S. DATE OF FILING RETURNS U/S. 153A WHETHER ABATED (1) (2) (3) (4) (5) (6) 2003-04 11.11.2003 31.03.2006 143(3) 30.07.2010 UNA BATED 2004-05 30.10.2004 27.12.2006 143(3) 30.07.2010 UNA BATED 2005-06 31.10.2005 19.12.2007 143(3) 30.07.2010 UNABATED 2006-07 30.11.2006 26.12.2008 143(3) 30.07.2010 UNA BATED 3 IT(SS)A NOS.11-15/KOL/2014 BENGAL EMTA COAL MINES LTD., AYS 2003-04 TO 2007-08 RELATABLE TO ABATED PROCEEDINGS (I.E. THOSE PENDING ON THE DATE OF SEARCH) AND THE WORD REASSESS TO COMPLETED ASSESSMENT PROCEEDINGS. VI. INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, THE J URISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UNDER SECTION 153A ME RGES INTO ONE. ONLY ONE ASSESSMENT SHALL BE MADE SEPARATELY FOR EACH AY ON THE BASIS O F THE FINDINGS OF THE SEARCH AND ANY OTHER MATERIAL EXISTING OR BROUGHT ON THE RECORD OF THE A O. VII. COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153 A ONLY ON THE BASIS OF SOME INCRIMINATI NG MATERIAL UNEARTHED DURING THE COURSE OF PROPERTY DISCOVERED IN THE COURSE OF SEARCH WHIC H WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL A SSESSMENT. 5. THE HON'BLE JURISDICTIONAL HIGH COURT IN CIT VS VEERPRABHU MARKETING LTD. REPORTED IN (2016) 73 TAXMANN.COM 149 (CAL) HAS ALSO HELD AS UNDER: WE AGREE WITH THE VIEW EXPRESSED BY THE DELHI HIGH COURT THAT INCRIMINATING MATERIAL IS PRE- REQUISITE BEFORE POWER COULD HAVE BEEN EXERCISED U/ S 153(C) R.W SECTION 153(A). IN THE CASE BEFORE US, THE AO HAS MADE A DISALLOWANCE OF THE EXPENDITU RE, WHICH WAS HELD DISCLOSED, FOR ONE REASON OR THE OTHER, BUT SUCH DISALLOWANCES MADE BY THE AO WE RE UPHELD BY THE LD.CIT(A) BUT THE LD. TRIBUNAL DELETED THESE DISALLOWANCE. WE FIND NO INF IRMITY IN THE AFORESAID ACT OF THE LD. TRIBUNAL. THE APPEAL IS, THEREFORE, DISMISSED. 6. IN THE LIGHT OF THE AFORESAID RATIO LAID BY THE HON'BLE HIGH COURTS, WHEREIN, THE HONBLE HIGH COURT HELD THAT IN THE ABSENCE OF ANY INCRIMINATING MATERIALS, THE COMPLETED ASSESSMENT CAN BE RE-ITERATED AND IN THE TWO CASES BEFORE US FROM A PERUSAL OF THE CHART, IT IS CLEAR THAT ON THE DATE OF SEARCH I.E. ON 15.01.2009 , ASSESSMENTS PERTAINING TO A.YS. 2003-04 TO 2007-08 WERE NOT PENDING BEFORE THE AO BECAUSE T HE LAST DATE FOR ISSUANCE OF SECTION 143(2) NOTICE FOR SCRUTINY WAS ON 30.09.2008 FOR AY 2007-08 AND FOR AY 2003-04 TO AY 2006-07 ASSESSMENT WAS COMPLETED U/S. 143(3) OF THE ACT BEFORE 26.12.2008 AND SO, IT CAN BE SAFELY PRESUMED THAT THESE ASSESSMENTS WERE NOT PENDING BEFORE THE AO AND AS PER THE RATIO LAID BY THE HONBLE HIGH COURTS THESE ASSESS MENTS ARE CONCLUDED ASSESSMENTS, WHICH CANNOT BE TINKERED WITH FRESH ADDITIONS WITHOUT INC RIMINATING MATERIALS SEIZED DURING SEARCH. WE NOTE THAT THE AO AT PAGE 3 OF HIS ORDER HAS OBSERVED IN VIEW OF THIS, THE BANK ACCOUNTS OF THE ASSESSEE COMPANY ARE CONSIDERED AS EXPLAINED .. SIMILARLY, THE AO OBSERVED AT PARA 3 OF HIS ORDER AS UNDER: 3. SEIZED/IMPOUNDED BOOKS OF ACCOUNTS/DOCUMENTS: DURING THE COURSE OF SEARCH OPERATION DOCUMENTS WITH IDENTIFICATION MARK S, SC/1 TO SC/3, PR/1 TO PR/12, A/1 & A/2, EMT/1 TO 23 AND ELECTRONIC DEVICES WERE SEIZED /IMPOUNDED. A QUESTION WAS RAISED VIDE THE QUESTIONNAIRE ISSUED TO THE ASSESSEE COMPANY IN RESPECT OF THE CONTENTS OF SUCH DOCUMENTS. IN RESPONSE THE ASSESSEE COMPANY HAS SUBMITTED A PA GE WISE EXPLANATION OF THE ENTRIES SHOWING NATURE OF THE ENTRIES AND TO WHOM THE SAID DOCUMENTS RELATES.