Shri Rohit Goyal, Jamshedpur V. ACIT,C.C., Jamshedpur

ITSSA 14/RAN/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 5999 (ITAT-RANCHI)
• Duration Of Justice: 1 year(s) 7 month(s) 24 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 23-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 29-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: INDERJEET SINGH
• Keywords: Opportunity of being heard; Question of law
• Section: 143(3); 153A; 143(2); 139(1); 153; 22; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RANCHI, E COURT, AT KOLKATA BEFORE SHRI J. SUDHAKAR REDDY, AM & SHRI S.S. GODAR A, JM ./IT(SS)A NO.13/RAN/2019 ( / ASSESSMENT YEAR:2013-14) SHRI SHYAM SUNDER GOYAL, JAMSHEDPUR 1A, CIRCUIT HOUSE AREA (OLD), 67, APSARA APARTMENT, BISTUPUR, JAMSHEDPUR VS. ACIT, CC-JAMSHEDPUR ./ ./PAN/GIR NO.: ADSPG 8407 G (APPELLANT) .. (RESPONDENT) ./IT(SS)A NO.14/RAN/2019 ( / ASSESSMENT YEAR:2013-14) SHRI ROHIT GOYAL, JAMSHEDPUR 1A, CIRCUIT HOUSE AREA (OLD), BISTUPUR, JAMSHEDPUR VS. ACIT, CC-JAMSHEDPUR ./ ./PAN/GIR NO.: AFTPG 9586 R (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI DEVESH PODDAR, ADVOCATE RESPONDENT BY : SHRI INDERJEET SINGH, CIT / DATE OF HEARING : 02/09/2020 /DATE OF PRONOUNCEMENT : 23/09/2020 I.T.(SS).A NOS.13 & 14/RAN/2019 SHRI SHYAM SUNDER GOYAL & SHRI ROHIT GOYAL A.Y.: 2013-14 PAGE | PAGE | PAGE | PAGE | 2 22 2 / O R D E R PER SHRI S. S. GODARA, JM: THESE TWO ASSESSEES APPEALS FOR ASSESSMENT YE AR 2013-14 ARISE AGAINST THE CIT(A)- 3, PATNAS SEPARATE ORDERS BOTH DAT ED 27.11.2018, PASSED IN CASE NOS. 248 & 249/CIT(A)-3/PAT/2018-19; RESPECTIVELY INVOLVING PROCEEDINGS U/S 143(3) OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT). HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. LEARNED COUNSEL AT THE OUTSET INVITED OUR ATTENT ION TO THE ASSESSEES PETITION SEEKING ADMISSION OF THAT IDENTICAL LEGAL GROUND TH AT BOTH THE LOWER AUTHORITIES HAVE ERRED IN LAW AND ON FACTS IN FRAMING THE IMPUG NED ASSESSMENTS U/S 153A OF THE ACT IN ABSENCE OF ANY INCRIMINATING EVIDENCE FO UND / SEIZED DURING THE COURSE OF THE SEARCH. THE REVENUE HAS RAISED A VERY STRONG OBJECTION THAT THESE ASSESSEES ARE ESTOPPEL FROM RAISING FOREGOING LEGAL PLEA AT THIS BELATED STAGE AND MORE SO, WHEN THE AUTHORITIES BELOW HAVE AFFORDED THEM ADEQU ATE OPPORTUNITY OF BEING HEARD. 3. WE FIND NO MERIT IN REVENUES FOREGOING TECHNIC AL FAULT. HONBLE APEX COURT LANDMARK DECISION IN NTPC VS. CIT IN 221 ITR 383 (SC); CONSIDERED IN M/S ALL CARGO GLOBAL LOGISTICS LTD. VS. DCIT (2012) 137 ITD 287 (MUM)(SB), HOLDS THAT THIS TRIBUNAL CAN VERY WELL ENTERTAIN A PURE QUESTION OF LAW PROCEEDED ALL THE RELEVANT FACTS ARE ALREADY IN RECORD SO AS TO D ETERMINE THE CORRECT TAX LIABILITY OF TAXPAYER. WE THEREFORE ADMIT THE ASSSSEES FOREGOIN G LEGAL GROUND FOR ADJUDICATION. 4. COMING TO ABOVE STATED LEGAL ISSUE, WE NOTICE TH AT THE RELEVANT FACTS ARE IN A VERY NARROW COMPOSE. THESE TWO ASSESSEES HAD FILED THEIR REGULAR RETURNS U/S 139(1) OF THE ACT ON 31.07.2013 AND 29.09.2013; RES PECTIVELY. THIS FOLLOWED THE I.T.(SS).A NOS.13 & 14/RAN/2019 SHRI SHYAM SUNDER GOYAL & SHRI ROHIT GOYAL A.Y.: 2013-14 PAGE | PAGE | PAGE | PAGE | 3 33 3 IMPUGNED SEARCH CARRIED OUT ON 11.09.2015. MEANING THEREBY, THERE WAS NO ASSESSMENT PENDING ON THE DATE OF SEARCH IN LIGHT OF THE CORRESPONDING TIME LIMIT OF ISSUING SCRUTINY NOTICE (S) U/S 143(2) AVAILABLE UPTO 30.09.2014. THE ASSESSING OFFICER THEREAFTER INITIATED U/S 153A PROCEEDING CU LMINATING THE LTCG ADDITION OF RS. 22,81,450/- EACH IN THE ASSESSMENT FRAMED ON 2 8.12.2016 AS UPHELD IN THE LEARNED CIT(A)S ORDER(S) UNDER CHALLENGE. 5. WE NOTICE IN THIS BACKDROP THAT NEITHER THE IM PUGNED ADDITION NOR ASSESSMENTS ARE BASED ON ANY INCRIMINATING MATERI AL FOUND / SEIZED DURING THE COURSE OF SEARCH. THAT BEING THE HONBLE DELHI HIGH COURT LANDMARK JUDGMENT IN CIT VS. KABUL CHAWLA (2016) 380 ITR 573 (DEL) HOLDS SUCH PROCEEDINGS TO BE NOT SUSTAINABLE IN LAW AS UNDER: 37. ON A CONSPECTUS OF SECTION 153A(1) OF THE ACT, REA D WITH THE PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLAINED IN T HE AFOREMENTIONED DECISIONS, THE LEGAL POSITION THAT EMERGES IS AS UNDER: I. ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF THE ACT, NOTICE UNDER SECTION 153 A(1) WILL HAVE TO BE MANDATORILY ISSUED TO THE PERSON SEARCHED REQUIRING HIM TO FILE RETURNS FOR SIX AYS IMMEDIATELY PRECEDING THE PREVIOUS YEAR RELEVANT TO THE AY IN WHICH THE S EARCH TAKES PLACE. II. ASSESSMENTS AND REASSESSMENTS PENDING ON THE DATE OF THE SEARCH SHA LL ABATE. THE TOTAL INCOME FOR SUCH AYS WILL HAVE TO B E COMPUTED BY THE AOS AS A FRESH EXERCISE. III. THE AO WILL EXERCISE NORMAL ASSESSMENT POWERS IN RE SPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT AY IN WHICH THE SEARCH TAKES PLACE. THE AO HAS THE POWER TO ASSESS AND REASSESS THE 'TOTAL INCOME' OF THE AFOREMENTIONED SIX YEARS IN SEPARATE ASSESSMENT ORD ERS FOR EACH OF THE SIX YEARS. IN OTHER WORDS THERE WILL BE ONLY ONE AS SESSMENT ORDER IN RESPECT OF EACH OF THE SIX AYS 'IN WHICH BOTH THE DISCLOSED AN D THE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX'. IV. ALTHOUGH SECTION 153 A DOES NOT SAY THAT ADDITIONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE O F THE SEARCH, OR OTHER PO ST- SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE A O WHICH CAN BE RELATED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THA T THE ASSESSMENT 'CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MA DE UNDER THIS SECTION ONLY ON THE BASIS OF SEIZED MATERIAL.' I.T.(SS).A NOS.13 & 14/RAN/2019 SHRI SHYAM SUNDER GOYAL & SHRI ROHIT GOYAL A.Y.: 2013-14 PAGE | PAGE | PAGE | PAGE | 4 44 4 V. IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPL ETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESS MENT CAN BE MADE. THE WORD 'ASSESS' IN SECTION 153 A IS RELATABLE T O 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 MERGES INTO ONE. ONLY ONE ASSESSMENT SHALL BE MADE SEPARAT ELY FOR EACH AY ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTH ER MATERIAL EXISTING OR BROUGHT ON THE RECORD OF THE AO. VII. COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY TH E AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153 A ONLY ON THE BASI S OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS OR UNDISCLOSED INCOME OR P ROPERTY DISCOVERED IN THE COURSE OF SEARCH WHICH WERE NOT PROD UCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL A SSESSMENT. 6. WE ADOPT THE ABOVE SUMMARY OF LEGAL PROPOSITION; MORE PARTICULARLY IN CLAUSES (IV) AND (V) HEREINABOVE AND HOLD THAT THE IMPUGNED ADDITIONS / ASSESSMENTS DESERVE TO BE QUASHED. WE ORDER ACCORDINGLY. ALL O THER PLEADING ON MERITS ARE RENDERED INFRUCTUOUS. 7. THESE TWO ASSESSEES APPEALS ARE ALLOWED. ORDER PRONOUNCED IN THE COURT ON 23.09.2020 SD/- (J.SUDHAKAR REDDY) SD/- (S.S.GODARA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER /KOLKATA; / DATE: 23/09/2020 SB, SR.PS I.T.(SS).A NOS.13 & 14/RAN/2019 SHRI SHYAM SUNDER GOYAL & SHRI ROHIT GOYAL A.Y.: 2013-14 PAGE | PAGE | PAGE | PAGE | 5 55 5 COPY OF THE ORDER FORWARDED TO: 1. SHRI SHYAM SUNDER GOYAL & SHRI ROHIT GOYAL 2. ACIT, CC-JAMSHEDPUR 3. C.I.T(A)- 4. C.I.T.- RANCHI 5. CIT(DR), RANCHI BENCH, RANCHI . 6. GUARD FILE. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY ITAT, KOLKATA BENCHES