Shri Ajay Hirachand Lakdawala, Surat V. The ACIT.,Circle-5, Surat

ITSSA 320/AHD/2010

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8321 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 2 month(s) 19 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 04-07-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 04-07-2011
• Assessment Year: misc
• Appeal Filed On: 15-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR JAYANT JHAVERI
• Assessee Lawyers: R N VEPARI
• Keywords: Opportunity of being heard; Principle of natural justice; Block assessment; Documents seized

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, B BENCH (BEFORE S/SHRI G.D. AGARWAL, VICE-PRESIDENT AND BHAVNESH SAINI, JUDICIAL MEMBER) IT(SS)A NO. & ASSTT.YEAR APPELLANT RESPONDENT 320/AHD/2010 BLOCK PERIOD 1995-96 & 2000-01 AJAY HIRACHAND LAKDAWALA RUBI TERRACE 8/1441, KAYASTHA MOHALLO GOPIPURA, SURAT. PAN : AAOPL 4970 E ACIT, CIR.5, SURAT. 321/AHD/2010 BLOCK PERIOD 1995-96 & 2000-01 YASHWANT CHIMANLAL SHAH PROP: SHAH PUBLICITY 8/1311, BHANSALINI POLE GOPIPURA, SURAT. PAN : ADEPS 9307 B ACIT, CIR.5, SURAT. 322/AHD/2010 BLOCK PERIOD 1995-96 & 2000-01 ASHWIN LAKDAWALA RUBI TERRACE JAY HIRACHAND LAKDAWALA KAJI MAIDAN GOPIPURA, SURAT. PAN : ACOPL 6125 F ACIT, CIR.5, SURAT. 459/AHD/2010 BLOCK PERIOD 1995-96 & 2000-01 JASUKHBHAI KALIDAS DOSHI JK TRADING CO. KAYASTHA STREET GOPIPURA, SURAT. PAN : ABDPB 3510 F ACIT, CIR.5, SURAT. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI R.N. VEPARI REVENUE BY : DR. JAYANT JHAVERI O R D E R PER G.D. AGARWAL, VICE-PRESIDENT : THESE ARE FOUR APPEALS BY THE DIFFERENT ASSESSEES AGAINST THE ORDERS OF TH E LEARNED COMMISSIONER IT(SS)A.NO.320/AHD/2010 AND 3 OTHERS. -2- OF INCOME-TAX (APPEALS)-IV, SURAT DATED 24.02.2010 ARISING OUT OF THE ORDER OF THE AO UNDER SECTION 158BD OF THE INCOME T AX ACT, 1961. SINCE ISSUE RAISED IN ALL THE APPEALS IS COMMON, WE DISPOSE OF ALL THE APPEALS BY THIS CONSOLIDATED ORDER. 2. SINCE ISSUE IS COMMON IN ALL THE APPEALS, FOR CO NVENIENCE, WE TAKE THE GROUND RAISED IN IT(SS)A.NO.320/AHD/2010 FOR DI SPOSAL OF ALL THE APPEALS AS UNDER: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND AS PER LAW, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE O RDER OF THE AO. 2. THE APPELLANT SUBMITS THAT THE LD.CIT(A) HAS MAD E FACTUALLY INCORRECT STATEMENTS, NOT FOLLOWED THE ORDER OF THE TRIBUNAL, NOT CONSIDERED THE ISSUE OF NATURAL JUSTICE AND IN VIEW THEREOF THE ORDER IS THEREFORE REQUIRED TO BE VACATED. 3. WITHOUT PREJUDICE TO THE ABOVE, THE APPELLANT SU BMITS THAT WHEN THE BLOCK ASSESSMENT WAS COMPLETED IN CASE OF PARIVAR TELEVISION PVT. LTD. U/S.158BC ON 31.12.2003 ISSUE OF NOTICE U/S,.158BD HAVING BEEN MADE ON 28.05.2007 WAS ITSEL F TIME BARRED AND PROCEEDINGS PURSUANT TO THE ABOVE WERE REQUIRED TO BE HELD ILLEGAL. 3. AT THE TIME OF HEARING BEFORE US, IT IS STATED B Y THE LEARNED COUNSEL THAT AS PER THE ASSESSMENT ORDER, THE AO HAS TAKEN ACTION UNDER SECTION 158BD OF THE ACT AS A CONSEQUENCE OF THE SEARCH AT THE BUSINESS PREMISES OF PARIVAR TELEVISION PVT. LTD. (PTPL FOR SHORT). THAT THE BLOCK ASSESSMENT OF PTPL UNDER SECTION 158BC WAS COMPLE TED ON 31-12- 2003. THAT IN THE ASSESSMENT ORDER OF PTPL, THER E IS NO FINDING THAT THE BOOKS OF ACCOUNTS OR DOCUMENTS SEIZED IN THE CA SE OF PTPL BELONGED TO THE ASSESSEE. THEREFORE, THE BASIC COND ITION FOR APPLICABILITY OF SECTION 158BD IS NOT SATISFIED. MOREOVER, THE N OTICE UNDER SECTION IT(SS)A.NO.320/AHD/2010 AND 3 OTHERS. -3- 158BD IS ISSUED ON 18-5-2007 WHICH IS MORE THAN THR EE YEARS AFTER THE COMPLETION OF THE BLOCK ASSESSMENT IN THE CASE OF PTPL. THAT THE SPECIAL BENCH OF THE ITAT IN THE CASE OF MANOJ AGGA RVAL VS. DCIT, 113 ITD 377 (DELHI)(SB) HAS HELD THAT THE PROCEEDINGS U NDER SECTION 158BD SHOULD BE INITIATED BEFORE THE COMPLETION OF THE AS SESSMENT IN THE CASE OF THE PERSON SEARCHED. THAT IN THE CASE UNDER APPEAL , THE PROCEEDINGS UNDER SECTION 158BD IS INITIATED AFTER MORE THAN THREE YE ARS FROM THE COMPLETION OF ASSESSMENT OF THE PERSON SEARCHED VIZ . PTPL. THEREFORE, AS PER THE DECISION OF THE SPECIAL BENCH IN THE CAS E OF MANOJ AGGARVAL (SUPRA), THE INITIATION OF THE PROCEEDINGS UNDER SE CTION 158BD IS BARRED BY LIMITATION. HE THEREFORE SUBMITTED THAT THE INI TIATION OF PROCEEDINGS UNDER SECTION 158BD SHOULD BE QUASHED AND CONSEQUEN TLY, THE ASSESSMENT ORDER PASSED IN PURSUANCE THERETO SHOULD ALSO BE QUASHED. 4. THE LEARNED DR, ON THE OTHER HAND, STATED THAT T HIS GROUND WAS NOT TAKEN BEFORE THE CIT(A) THEREFORE EFFECTIVELY THIS IS ADDITIONAL GROUND BEFORE THE ITAT. THAT THE INDORE BENCH OF THE MADH AY PRADESH HIGH COURT IN THE CASE OF CIT VS. TOLLARAM HASSOMAL, 298 ITR 22 HAS TAKEN THE VIEW THAT WHENEVER ANY ADDITIONAL GROUND IS ADM ITTED BY THE ITAT, THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF T HE CIT(A). HE THEREFORE STATED THAT THE MATER SHOULD BE SET ASIDE TO THE FI LE OF THE CIT(A) FOR DECIDING THE APPEAL AFRESH ON ALL THE ISSUES INCLUD ING THE INITIATION OF PROCEEDINGS UNDER SECTION 158BD. THE LEARNED COUNS EL FOR THE ASSESSEE HAS FAIRLY AGREED TO THIS SUGGESTION OF THE LEARNED DR THAT THE MATTER MAY BE SET ASIDE TO THE FILE OF THE CIT(A). 5. IN VIEW OF THE ABOVE, WE SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF THE CIT(A) F OR DECIDING THE APPEAL IT(SS)A.NO.320/AHD/2010 AND 3 OTHERS. -4- AFRESH ON ALL THE ISSUES INCLUDING THE ISSUE OF VAL IDITY OF INITIATION OF PROCEEDINGS UNDER SECTION 158BD. THE CIT(A) IS DIR ECTED TO RE- ADJUDICATE THE MATTER AFRESH IN ACCORDANCE WITH LAW AFTER ALLOWING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . 6. IN IT(SS)A.NO.321, 322 AND 459/AHD/2010, SIMILAR ISSUE IS RAISED. BOTH THE PARTIES AGREED THAT FACTS IN ALL THESE THR EE APPEALS ARE IDENTICAL TO THE FACTS IN THE CASE OF IT(SS)A.NO.320/AHD/2010 IN THE CASE OF AJAY HIRACHAND LAKDAWALA AND THEREFORE WHATEVER DECISION IS TAKEN IN THAT CASE, SHOULD BE APPLIED TO THESE THREE APPEALS ALSO . 7. IN VIEW OF THE ABOVE, WE SET ASIDE ORDERS OF THE CIT(A) IN THESE THREE APPEALS ALSO AND REMAND THE MATTER BACK TO TH E FILE FOR DECIDING ALL APPEALS AFRESH ON ALL HIS ISSUES INCLUDING THE ISSU E OF VALIDITY OF INITIATION OF PROCEEDINGS UNDER SECTION 158BD. THE CIT(A) IS DIRECTED TO ALLOW ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THEREFORE RE- ADJUDICATE THE APPEAL AFRESH IN ACCORDANCE WITH LAW . 8. IN THE RESULT, THE APPEALS OF THE ASSESSEES ARE DEEMED TO BE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 4 TH JULY, 2011 SD/- SD/- (BHAVNESH SAINI) JUDICIAL MEMBER (G.D. AGARWAL) VICE-PRESIDENT PLACE : AHMEDABAD DATE : 04-07-2011