DCIT, Central Circle-25, V. Shibani Dutta,

ITSSA 303/DEL/2003

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 8783 (ITAT-DELHI)
• Duration Of Justice: 9 year(s) 9 month(s) 16 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 22-03-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 21-03-2013
• Assessment Year: misc
• Appeal Filed On: 05-06-2003
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALITHA KRISHNAMURTHY
• Assessee Lawyers: A K MISHRA
• Keywords: Unexplained cash credit; Period of limitation; Question of law; Block assessment
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH H HH H : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI SHRI SHRI SHRI I.C.SUDHIR I.C.SUDHIR I.C.SUDHIR I.C.SUDHIR, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER IT ITIT IT(SS) A.NO.303/DEL/2003 (SS) A.NO.303/DEL/2003 (SS) A.NO.303/DEL/2003 (SS) A.NO.303/DEL/2003 BLOCK PERIOD : 01.04.1990 TO 28.04.2000 BLOCK PERIOD : 01.04.1990 TO 28.04.2000 BLOCK PERIOD : 01.04.1990 TO 28.04.2000 BLOCK PERIOD : 01.04.1990 TO 28.04.2000 DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CENT CENT CENT CENTRAL CIRCLE RAL CIRCLE RAL CIRCLE RAL CIRCLE- -- -25, 25, 25, 25, JANPATH BHAWAN, JANPATH BHAWAN, JANPATH BHAWAN, JANPATH BHAWAN, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. VS. VS. VS. VS. MRS. SHIBANI DUTTA, MRS. SHIBANI DUTTA, MRS. SHIBANI DUTTA, MRS. SHIBANI DUTTA, C/O RAMANAND AIYAR & CO., CAS, C/O RAMANAND AIYAR & CO., CAS, C/O RAMANAND AIYAR & CO., CAS, C/O RAMANAND AIYAR & CO., CAS, 708, SURYA KIRAN BUILDING, 708, SURYA KIRAN BUILDING, 708, SURYA KIRAN BUILDING, 708, SURYA KIRAN BUILDING, 19, KASTURBA GANDHI MARG, 19, KASTURBA GANDHI MARG, 19, KASTURBA GANDHI MARG, 19, KASTURBA GANDHI MARG, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 001. 110 001. 110 001. 110 001. (APPELLANT) (RESPONDENT) APPELLANT BY : SMT.LALITHA KRISHNAMURTHY, CA. RESPONDENT BY : SHRI A.K.MISHRA, CIT-DR. ORDER ORDER ORDER ORDER PER G. PER G. PER G. PER G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VP VPVP VP : : : : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE O RDER OF LEARNED CIT(A)-I, NEW DELHI DATED 27 TH MARCH, 2003 FOR THE BLOCK PERIOD 01.04.1990 TO 28.04.2000. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD.CIT(A) ERRED IN DELETING THE ADDITION OF RS.2,26, 248/- MADE ON ACCOUNT OF JEWELLERY BY IGNORING THAT NO INVESTMENT IN JEWELLERY WAS DISCLOSED AND NO WEALTH TAX RETURN WAS FILED. IT(SS)-303/DEL/2003 2 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD.CIT(A) ERRED IN DELETING THE ADDITION OF RS.9,41, 289/- ON ACCOUNT OF UNEXPLAINED CREDITS IN TWO BANKS ACCOUNTS. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD.CIT(A) ERRED IN DELETING THE ADDITION OF RS.1,95, 193/- MADE ON ACCOUNT OF UNDISCLOSED INTEREST INCOME. 3. HOWEVER, AT THE TIME OF HEARING BEFORE US, IT WAS POINTED OUT BY THE LEARNED COUNSEL THAT IN THIS CASE, THE ASSESSEE HAD CH ALLENGED THE BLOCK ASSESSMENT TO BE BARRED BY LIMITATION. THE ITAT IN THE INTERIM ORDER DATED 25 TH OCTOBER, 2011 HAS HELD THE ORDER TO BE WITHIN THE PERIOD OF LIMITATION. AGAINST THE SAID INTERIM ORDER , THE ASSESSEE HAD FILED THE APPEAL BEFORE THE HON'BLE JURISDICTIONAL HIGH COURT WHICH, VIDE ORDER DATED 12 TH JULY, 2012 IN ITA NO.169/2012, HAS HELD THE ASSESSMENT TO BE BARRED BY LIMITATION. ONCE THE ASSESSMENT ITSELF HAS BEEN HELD TO BE BARRED BY LIMITATION, THE GROUNDS RA ISED BY THE REVENUE IN ITS APPEAL DO NOT SURVIVE. 4. LEARNED DR, ON THE OTHER HAND, RELIED UPON THE O RDER OF THE ASSESSING OFFICER. HOWEVER, HE WAS FAIR ENOUGH TO SAY TH AT THE BENCH MAY PASS APPROPRIATE ORDER IN THE LIGHT OF THE DECISIO N OF HON'BLE JURISDICTIONAL HIGH COURT. 5. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND P ERUSED THE MATERIAL PLACED BEFORE US. IT(SS) A.NO.303/DEL/2003 (REVENUES APPEAL) AND CROSS-OBJECTION NO.28/DEL/2008 BY THE ASSE SSEE CAME UP FOR HEARING BEFORE THE ITAT ON 17 TH OCTOBER, 2011. IN THE CROSS- OBJECTION, THE ASSESSEE HAS CHALLENGED THE VALIDITY OF T HE ASSESSMENT ORDER ON THE GROUND THAT IT IS BARRED BY LIMITATION UNDER SECTION 158BE OF THE INCOME-TAX ACT, 1961. AS THE CROSS-OBJECTION G OES TO THE ROOT OF THE MATTER, THE SAME WAS TAKEN UP FIRST AND ADJUDICATE D VIDE INTERIM ORDER DATED 25 TH OCTOBER, 2011. THE ITAT HELD THAT THE ASSESSMENT IT(SS)-303/DEL/2003 3 WAS COMPLETED WITHIN THE PERIOD OF LIMITATION. AGAI NST THE SAID INTERIM ORDER, THE ASSESSEE FILED APPEAL BEFORE THE HON'BLE JUR ISDICTIONAL HIGH COURT. HON'BLE JURISDICTIONAL HIGH COURT, VIDE ORDE R DATED 12 TH JULY, 2012 IN ITA NO.169/2012, DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE AND HELD AS UNDER:- 12. IN OUR OPINION AND FOR THE ABOVE REASONS THE TRI BUNAL ERRED IN RELYING ON CLAUSE (III) OF THE EXPALNATION- 1 TO SECTION 158BE TO HOLD THAT BLOCK ASSESSMENT ORDER PASSE D ON 30.07.2002 IS WITHIN THE PERIOD OF LIMITATION. I T FAILED TO NOTE THAT NEITHER SECTION 129 NOR ITS PROVISO IS ATTRA CTED TO THE CASE. ITS FURTHER REASONING THAT THE FIRST PROVISO TO SECTION 158BC(A) REQUIRED NO NOTICE UNDER SECTION 1 48 FOR MAKING A BLOCK ASSESSMENT, MERELY BECAUSE THE NOTICE REQUIRED TO BE ISSUED UNDER SECTION 158BC(A) CALLING FOR THE BLOCK RETURN IS ANALOGOUS TO THE NOTICE UNDER SEC TION 148 TO REOPEN AN ASSESSMENT, IS WITHOUT ANY BASIS, EITHER ON PRINCIPLE OR ON AUTHORITY. THE TRIBUNAL HAS ERRO NEOUSLY EQUATED THE NOTICE ISSUED UNDER SECTION 158BC(A) TO A NOTICE ISSUED UNDER SECTION 148 TO REOPEN AN ASSESSMENT AND ERRED IN FURTHER UNDERSTANDING THE WORDS THE TIM E TAKEN IN REOPENING THE WHOLE OR ANY PART OF THE PROCEEDING APPEARING IN CLAUSE (III) OF EXPALNATION -1 TO MEAN A REOPENING OF THE ASSESSMENT UNDER SECTION 148. WITH RESPECT, THE REASONING APPEARS TO BE CONVOLUTED A ND UNTENABLE. THE REOPENING OF THE PROCEEDINGS REFERRE D TO IN CLAUSE (III) OF EXPALNATION-1 IS THE REOPENING OF THE PROCEEDINGS FOR THE ASSESSMENT WHICH HAVE BEEN COMPLETED IN PART BY AN EARLIER INCUMBENT OF OFFICE , AND NOT THE REOPENING OF THE ASSESSMENT UNDER SECTION 148. THIS MUCH SHOULD HAVE BEEN CLEAR TO THE TRIBUNAL SINCE THE SAID CLAUSE IN THE EXPLANATION CLEARLY REFERS TO THE P ROVISO TO SECTION 129. THE LOGIC EMBODIED IN THE CLAUSE HA S BEEN COMPLETED MISSED BY THE TRIBUNAL. 13. FOR THE ABOVE REASONS, WE ANSWER THE SUBSTANTIAL QUESTION OF LAW IN THE NEGATIVE, IN FAVOUR OF THE ASSE SSEE AND AGAINST THE REVENUE AND ALLOW THE APPEAL OF THE ASSESSEE WITH NO ORDER AS TO COSTS. 6. IN VIEW OF THE ABOVE JUDGMENT OF THE HON'BLE JUR ISDICTIONAL HIGH COURT HOLDING THE ASSESSMENT ITSELF TO BE BARRED BY LIMI TATION, WE ARE IT(SS)-303/DEL/2003 4 OF THE VIEW THAT THE GROUNDS RAISED BY THE REVENUE IN ITS APPEAL DO NOT SURVIVE. THE SAME ARE DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED . DECISION PRONOUNCED IN THE OPEN COURT ON 22 ND MARCH, 2013. SD/- SD/- ( (( (I.C.SUDHIR I.C.SUDHIR I.C.SUDHIR I.C.SUDHIR) )) ) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER VICE PRESI VICE PRESI VICE PRESI VICE PRESIDENT DENT DENT DENT DATED : 22.03.2013 VK. COPY FORWARDED TO: - 1. APPELLANT : DEPUTY COMMISSIONER OF INCOME TAX, DEPUTY COMMISSIONER OF INCOME TAX, DEPUTY COMMISSIONER OF INCOME TAX, DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -25, JANPATH BHAWAN, NEW DELHI. 25, JANPATH BHAWAN, NEW DELHI. 25, JANPATH BHAWAN, NEW DELHI. 25, JANPATH BHAWAN, NEW DELHI. 2. RESPONDENT : MRS. SHIBANI DUTTA, MRS. SHIBANI DUTTA, MRS. SHIBANI DUTTA, MRS. SHIBANI DUTTA, C/O RAMANAND AIYAR & CO., CAS, C/O RAMANAND AIYAR & CO., CAS, C/O RAMANAND AIYAR & CO., CAS, C/O RAMANAND AIYAR & CO., CAS, 708, SURYA KIRAN BUILDING, 708, SURYA KIRAN BUILDING, 708, SURYA KIRAN BUILDING, 708, SURYA KIRAN BUILDING, 19, KASTURBA 19, KASTURBA 19, KASTURBA 19, KASTURBA GANDHI MARG, GANDHI MARG, GANDHI MARG, GANDHI MARG, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 001. 110 001. 110 001. 110 001. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR