The ACIT, Central Circle-1(2), Ahmedabad V. Jivraj V. Desai, Mehsana

ITSSA 354/AHD/2011

• Counselvise Citation: [2014] 119 COUNSELVISE.COM (IT) 3106 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 8 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 03-11-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 18-09-2014
• Assessment Year: 1999-2000
• Appeal Filed On: 25-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T P KRISHNA KUMAR
• Assessee Lawyers: G C PIPARA
• Keywords: Income from undisclosed sources; Document seized; Block assessment; Documents seized
• Section: 143(3); 153A; 154

Judgement Text

, , , , C, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, C BENCH . .. . . .. . , !' !' !' !', , , , #$ %&'( #$ %&'( #$ %&'( #$ %&'(, , , , )* + ) ' )* + ) ' )* + ) ' )* + ) ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND ANIL CHATURVEDI, ACCOUNTANT MEMBER) IT(SS)A NO.354/AHD/2011 WITH CO NO.117/AHD/2011 [ASSTT.YEAR : 1999-2000] ACIT, CENT.CIR.1(2) AHMEDABAD. /VS. SHRI JIVRAJ V. DESAI 5, ASHOKNAGAR SOCIETY RADHANPUR ROAD, MEHSANA. PAN : AAWPD 3565 P ( (( ( -. -. -. -. / APPELLANT) ( (( ( /0-. /0-. /0-. /0-. / RESPONDENT) + 1 2 ) / REVENUE BY : SHRI T.P. KRISHNAKUMAR, CIT-DR 4& 1 2 ) / ASSESSEE BY : SHRI G.C. PIPARA 5 1 &(* / DATE OF HEARING : 18 TH SEPTEMBER, 2014 678 1 &(* / DATE OF PRONOUNCEMENT : 03/11/2014 )9 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THIS APPEAL BY THE REVENUE AND CO BY THE ASSESSEE FOR THE ASSTT.YEAR 1999-2000 ARE DIRECTED AGAINST THE ORDER OF THE CIT(A). THESE ARE BEING DISPOSED OF WITH THIS CONSOLIDATED ORDER. IT(SS)A NO.354/AHD/2011 (REVENUES APPEAL): 2. THE GROUNDS OF THE APPEAL OF THE REVENUE ARE AS UNDER: IT(SS)A NO.354/AHD/2011 WITH CO -2- 1. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN DIRE CTING THE AO TO VERIFY THE ENTRIES IN THE SEIZED DOCUMENTS THAT HAV E ALREADY BEEN CONSIDERED AS UNDISCLOSED INCOME DURING THE BLOCK A SSESSMENT ORDER PASSED U/S.158BC OF THE ACT AND TO CONSIDER ONLY TH AT INCOME WHICH HAS NOT BEEN CONSIDERED IN THE EARLIER ASSESSMENT O RDER. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE CIT(A) OUGHT TO HAVE UPHELD THE ORDER AND NOT D IRECTED THE AO TO VERIFY THE SUBMISSION OF THE ASSESSEE IGNORING T HAT SUCH DIRECTION AMOUNTED TO SETTING ASIDE THE ASSESSMENT ORDER WHIC H HE NO LONGER CAN DO AFTER 01/06/2001. 3. THE LEARNED DR HAS RELIED ON THE ORDER OF THE AO . HE REFERRED TO RELEVANT PORTIONS OF THE ASSESSMENT ORDER IN SUPPOR T OF THE CASE OF THE REVENUE. THE LEARNED COUNSEL FOR THE ASSESSEE SUBM ITTED THAT THE CIT(A) HAS IN FACT RESTORED THE ISSUE OF ADDITION TO THE F ILE OF THE AO TO VERIFY ENTRIES, WHICH MAY HAVE ALREADY BEEN CONSIDERED AS UNDISCLOSED INCOME OF THE ASSESSEE IN THE BLOCK ASSESSMENT PASSED UNDER S ECTION 158BC AND CONSIDER ONLY THAT INCOME IN THE RELEVANT ASSESSMEN T YEAR, WHICH HAS NOT BEEN CONSIDERED IN THE BLOCK ASSESSMENT ORDER. HE SUBMITTED THAT THE AO VIDE HIS ORDER DATED 12.9.2011 PASSED UNDER SECTION 154 AFTER VERIFICATION FOUND THAT THE ADDITION OF RS.25,60,000/- WAS MADE IN THE ASSESSMENT ORDER UNDER SECTION 153C READ WITH SECTION 153A(B) R.W.S. SECTION 143(3) ORDER DATED 28.12.2006, ACCORDINGLY, THE ADDITION O N ACCOUNT OF UNDISCLOSED INCOME/RECEIPT AMOUNTING TO RS.25,60,00 0/- WAS DEDUCTED OUT OF THE TOTAL INCOME ASSESSED VIDE ORDER DATED 13.7. 2011, AND THE REVISED TOTAL INCOME WAS DETERMINED AT RS.9,37,890/-. IN T HESE FACTS, HE SUBMITTED THAT SINCE THE AO HIMSELF HAS ACCEPTED, THERE REMAI NS NO GRIEVANCE TO THE DEPARTMENT. THE LEARNED DR COULD NOT CONTROVERT TH E SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE. IT(SS)A NO.354/AHD/2011 WITH CO -3- 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND HAVE PE RUSED THE ORDERS OF THE AO AND THE CIT(A) AND ALSO THE ORDER OF THE AO DATED 12.9.2011 PASSED UNDER SECTION 154 OF THE ACT. WE FIND THAT THE CIT(A) VIDE ORDER DATED 15.2.2011 HAS DIRECTED THE AO TO VERIFY THE R ECORD THE AMOUNT WHICH HAVE ALSO BEEN CONSIDERED AS UNDISCLOSED INCOME OF THE ASSESSEE IN THE BLOCK ASSESSMENT ORDER PASSED UNDER SECTION 158BC A ND CONSIDER ONLY THAT INCOME IN THE ASSESSMENT YEAR UNDER APPEAL, WHICH H AS NOT BEEN CONSIDERED IN THE BLOCK ASSESSMENT ORDER. WE FIND THAT THE AO AFTER VERIFICATION HAS FOUND THAT THE AMOUNT OF RS.25,60, 000/- WAS ASSESSED TO TAX VIDE ASSESSMENT ORDER UNDER SECTION 153C R.W.S. 153A(B) R.W.S. 143(3) DATED 28.12.006. IT IS WELL SETTLED THAT THE SAME AMOUNT OF INCOME CANNOT BE ASSESSED TWICE IN THE HANDS OF THE ASSESSEE, AND THE ADDITION SHOULD NOT RESULT IN DOUBLE TAXATION OF THE INCOME. IN VIEW O F THE FACT THAT THE AO HERSELF HAS ACCEPTED THE CONTENTION OF THE ASSESSE, AND HAS DELETED THE ADDITION ON ACCOUNT OF UNACCOUNTED INCOME/RECEIPT A MOUNTING TO RS.25,60,000/-, VIDE ITS ORDER DATED UNDER SECTION 154 OF THE ACT, DATED 12.9.2011, THERE REMAINS NO MERITS IN THE GROUNDS O F THE APPEAL OF THE REVENUE, WHICH ARE ACCORDINGLY, DISMISSED. CO NO.117/AHD/2011 (ASSESSEES CO) 5. THE GROUNDS OF THE CO OF THE ASSESSEE ARE AS UND ER: 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN REJECTING THE GROUND OF APPEAL CHALLENGING THE VALIDITY OF THE AS SESSMENT ORDER U/S.153C R.W.S. 153A OF THE ACT. IN VIEW OF THE FA CTS OF THE CASE AND SUBMISSIONS FILED, THE IMPUGNED ORDER REQUIRES O BE QUASHED AS INVALID AND BAD IN LAW. 2. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF THE AO IN REFUSING TO GRANT ORAL CROSS EX AMINATION OF SHRI VIKAS A. SHAH FROM WHOSE POSSESSION THE MATERIAL RE LIED UPON IN IT(SS)A NO.354/AHD/2011 WITH CO -4- CASE OF THE APPELLANT HAVE BEEN FOUND AND SEIZED AN D WHOSE STATEMENTS HAVE BEEN RELIED UPON BY THE AO WHILE PA SSING THE ASSESSMENT ORDER AND MAKING VARIOUS ADDITIONS THERE IN IN CASE OF THE APPELLANT. THE IMPUGNED ASSESSMENT ORDER THUS REQUIRES TO BE QUASHED ON THIS GRO9UND ITSELF. 6. THE LEARNED COUNSEL FOR THE ASSESSEE HAS NOT PRE SSED THESE GROUNDS OF THE APPEAL OF THE CO, WHICH ARE ACCORDINGLY DISM ISSED. 7. IN THE RESULT, BOTH APPEAL OF THE REVENUE AND TH E CO OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %&'( %&'( %&'( %&'( / ANIL CHATURVEDI) )* + )* + )* + )* + /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD