Shiva Lokenath Rice Mills (P) Ltd., Dakshin Dinajpur V. DCIT, CC-XXVII, Kolkata, Kolkata

ITSSA 185/KOL/2014

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 3738 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 06-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 24-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MD USMAN CIT LD
• Assessee Lawyers: SUBASH AGARWAL LD
• Keywords: Document seized; Documents seized
• Section: 153A; 80IB

Judgement Text

1 IT(SS) A NO185/KOL/2014 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA BEFORE: SHRI M. BALAGANESH, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUD ICIAL MEMBER I.T (SS)A NO. 185/KOL/2014 A.Y: 2009-10 M/S. SHIVA LOKENATH RICE VS. D.C.I.T, CC-XVII, KOL KATA MILLS (P) LTD. PAN: AAHCS 6376B [APPELLANT] [RESPONDENT] FOR THE APPELLANT : SHRI SUBASH AGARWAL, ADVOC ATE, LD.AR FOR THE RESPONDENT : MD. USMAN, CIT, LD.DR DATE OF HEARING : 05-03-2018 DATE OF PRONOUNCEMENT : 06-04-2018 ORDER SHRI S.S.VISWANETHRA RAVI, JM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), CENTRAL-II, K OLKATA DT. 12- 09-2014 FOR THE A.Y 2009-10. 2. THE LD. AR SUBMITS THAT THE CONTENTION OF THE A SSESSEE IN THE MISCELLANEOUS APPLICATION WAS THAT GROUND NOS. 6 & 9 RAISED IN THE APPEAL WERE NOT ADJUDICATED BY THIS TRIBUNAL IN ITS ORDER DT. 03-01- 2018. THE ASSESSEE FILED MISC. APPLICATION TO RECTI FY THE MISTAKE APPARENT ON RECORD, WHICH WAS ALLOWED AND RECALLED BY THIS TRIBUNAL VIDE ITS ORDER DT. 3-1-2018 TO THE LIMITED EXTENT O NLY TO ADJUDICATE THE GROUND NOS. 6 & 9. 3. THE LD. AR FURTHER SUBMITS THAT THE ISSUES RAISE D IN THE GROUNDS OF APPEAL CHALLENGING THE ADDITION OF CIT-A IN CONF IRMING MADE BY THE AO FOR NON-DEDUCTION OF TDS AND DENIAL OF DEDUC TION U/SEC. 80IB OF THE ACT. THE SAID ADDITIONS WERE NO WAY CONCERNE D WITH SEIZED DOCUMENTS AND NO REFERENCE WHATSOEVER WAS MADE BY THE AO IN HIS ORDER. THE LD.AR REFERRED TO PARA 11.0 OF AOS ORDE R AND ARGUED THAT THE AO BASING ON SEIZED DOCUMENT MARKED AS ACP/4 MA DE ADDITION 2 IT(SS) A NO185/KOL/2014 ON ACCOUNT OF UNACCOUNTED PURCHASE. FURTHER, HE SUB MITS THAT THE TRANSACTIONS INVOLVED IN GROUND NOS. 6 & 9 WERE CAU SED IN GENERAL COURSE OF ASSESSEES BUSINESS AND WERE ALREADY PART OF REGULAR RETURNS FILED BY THE ASSESSEE AND THERE WAS NO INC RIMINATING MATERIAL FOUND IN THE SEARCH. THE LD.AR PRAYED TO ALLOW GR OUND NOS. 6 TO 9 AS THE ADDITIONS WERE MADE IN THE ABSENCE OF INCRIMINA TING MATERIAL. 4. LD. DR DID NOT CONTROVERT THE SAME AND RELIED ON THE ORDER DT. 3-1-18 OF TRIBUNAL. 5. HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT THE SEIZED DOCUMENT MARKED AS -ACP-4 I S RELATING TO UNACCOUNTED PURCHASE, BUT NOT RELATING TO ISSUE RAI SED IN GROUND NOS. 6 TO 9. IT IS CLEAR FROM THE ASSESSMENT ORDER THAT THERE WAS NEITHER INCRIMINATING MATERIAL FOUND IN THE SEARCH PROCEEDI NGS NOR THE AO MADE ANY REFERENCE TO THIS EFFECT REGARDING THE ADD ITIONS INVOLVED IN GROUND NOS. 6 TO 9 OF THE APPEAL. WE FIND THAT THE SEARCH WAS CONDUCTED ON 17-01-2012 IN THE PAUL GROUP CASES AND ASSESSEE IS ONE OF THE ENTITIES OF THE SAID GROUP. ON EXAMINATI ON OF AOS ORDER, WE FIND NO INCRIMINATING MATERIAL FOUND NOR REFERE NCE THERETO IN RESPECT OF ADDITIONS INVOLVING GROUND NOS. 6 TO 9. THEREFORE, THE CIT- A IS NOT JUSTIFIED IN CONFIRMING THE ADDITIONS MADE BY AO ON THESE TWO ISSUES IN THE ASSESSMENT COMPLETED U/SEC. 153A PRO CEEDINGS IN THE ABSENCE OF INCRIMINATING MATERIAL. THERE WAS NO INC RIMINATING MATERIAL FOUND DURING SEARCH ATTRACTING THE ADDITIO NS MADE IN GROUND NOS. 6 TO 9. RELIANCE IN THIS REGARD IS PLACED ON T HE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. KAB UL CHAWLA REPORTED IN (2016) 380 ITR 573(DEL). THUS, WE HOLD THAT THE ASSESSMENT FRAMED U/S. 153A RELATING TO ADDITIONS FOR NON DED UCTION OF TDS AND DENIAL OF DEDUCTION U/SEC.80IB INVOLVING GROUND NOS . 6 TO 9 OF THE APPEAL ARE NOT VALID. THUS, GROUND NOS. 6 TO 9 OF THE APPEAL RAISED BY ASSESSEE CHALLENGING THE ACTION OF CIT-A IN CONF IRMING THE SAME ARE ALLOWED. 3 IT(SS) A NO185/KOL/2014 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE-IT (SS) A NO. 185/KOL/2014 FOR THE A.Y 2009-10 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 06-0 4-2018 SD/- SD/- M. BALAGANESH S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 06-04-2018 PP(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT/ASSESSEE: SHIVA LOKENATH RICE MILLS P.LTD THANA ROAD, GANGARAMPUR, DAKSHIN DINAPUR-733124. 2 RESPONDENT :DEPUTY COMMISSIONER OF INCOME [DCIT], C C-XXVII, AAYKAR BHAWAN-PURVA, 110 SHANTI PALLY,EM BY-PASS, K OLKATA-107. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, SR.PS/H.O.O ITAT KOLKATA