The ACIT, Centre Circle-1(4), Ahmedabad V. Mahalaxmi Bhavan Co.Op.Housing So.Ltd., Ahmedabad

ITSSA 357/AHD/2011

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 0679 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 16 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 15-05-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 20-04-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 29-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAGDISH
• Keywords: Search and seizure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD (BEFO RE SHRI G.D. AGRAWAL & SHRI RAJPAL YADAV , J .M.) I. T. (SS) A. NO. 357 / AHD/ 20 1 1 (A SSESSMENT YEAR: 2007 - 08) ACIT, CENTRAL CIRCLE 1(4), ROOM NO. 337, 3 RD FLOOR, AAYKAR BHAVAN, ASHRAM ROAD, AHMEDABAD V/S MAHALAXMI BHAVAN CO - OPERTI VE HOUSING SOCIETY LTD, SITE OFFICE AT GHANTAKARN MAHAVIR MARKET, O /S, SARANGPUR GATE, AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AABCM 0364 R APPELLANT BY : SHRI JAGDISH , CIT - DR RESPONDENT BY : SHRI MANISH J. SHAH ( )/ ORDER DATE OF HEARING : 20 - 04 - 2015 DATE OF PRONOUNCEMENT : 15 - 05 - 2015 PER : - SHRI RAJPAL YADAV, J UDICIAL M EMBER REVENUE IS IN APPEAL BEFORE US AGAINST THE ORDER OF LD. CIT(A) - I DATED 28 TH FEBRUARY,2 011 PASSED FOR ASSESSMENT YEAR 2007 - 08. IT (SS) A NO 357/AHD/2011 . A.Y. 2007 - 08 2 2. THE SOLITARY SUBSTANTIAL GROUND OF APPEAL TAKEN BY THE REVENUE IS THAT LD. CIT(A) HAS ERRED IN DELETING ADDITION OF RS. 10 LACS MADE BY THE AO BY ESTIMATING INCOME OF ASSESSEE. 3. THE BRIEF FACTS OF THE CASE AR E THAT A SEARCH U/S. 132(1) OF THE INCOME TAX ACT, 1961 WAS CONDUCTED ON FIRST OF NOVEMBER, 2006 IN THE NEPTUNE GROUP OF CASES. ACCORDING TO THE AO, THE ASSESSEE CO - OPERATIVE SOCIETY IS FROM THIS GROUP. THUS, IT WAS ALSO COVERED FOR SEARCH AND SEIZURE A CTION U/S. 132(1). THE LD. AO HAD ISSUED A NOTICE U/S. 153A(1)(A) DATED 27 - 08 - 2008 REQUIRING THE ASSESSEE SOCIETY TO FURNISH RETURN OF INCOME IN RESPECT OF A.Y. 2007 - 08. ASSESSEE DID NOT FILE THE RETURN. LD. AO , THEREAFTER ISSUED A NOTICE U/S. 142(1). IN RESPONSE TO THIS NOTICE, IT WAS CONTENDED THAT ASSESSEE HAS BEEN BIFURCATED INTO TWO PARTS. THEREFORE , IT HAS NEITHER FURNISHED RETURN OF INCOME NOR THIS ASSESSEE HAS FURNISHED BALANCE SHEET. THE LD. AO HAD PROCEEDED TO PASS AN EX - PARTE ORDER. HE EST IMATED AN INCOME OF RS. 10 LACS WITHOUT MAKING REFERENCE TO ANY D OCUMENT OR MATERIAL. ON APPEAL , LD. CIT(A) HAS OBSERVED THAT SOC IETY IS NOT IN EXISTENC E AFTER 07 - 12 - 2005. THE AO IS NOT JUSTIFIED IN ESTIMATING THE INCOME IN THE HANDS OF SOCIETY WHICH IS A NON - EXISTENT ENTITY. THE O BSERVATION OF LD. CIT(A) READS AS UNDER: - 3. I HAVE CONSIDERED THE SUBMISSIONS OF THE APPELLANT. FROM THE DETAILS FURNISHED, IT IS APPARENT THAT APPELLANT SOCIETY HAS CEASED TO EXIST W.E.F. 07 - 12 - 2005, AS PER THE ORDER OF TH E REGISTRAR OF THE CO - OPERATIVE SOCIETY. THEREFORE, THE APPELLANT SOCIETY S INCOME COULD BE TAXED ONLY UPTO THE DATE OF EXISTENCE OF THE SOCIETY I.E. UPTO 07 - 12 - 2005. IN OTHER WORDS, THE APPELLANT SOCIETY S INCOME COULD BE BROUGHT TO TAX TILL A.Y. 2006 - 0 7. AS THE APPELLANT SOCIETY IS NOT IN EXISTENCE AFTER 07 - 12 - 2005, THEREFORE, NO ASSESSMENT OF THE APPELLANT SOCIETY COULD BE FRAMED FOR A.Y. 2007 - 08. ACCORDINGLY, THE ASSESSING OFFICER S ACTION OF ESTIMATING THE INCOME OF THE APPELLANT SOCIETY AT RS. 10 ,00,000/ - IS NOT APPROVED AND SUCH ADDITIONS ARE DIRECTED TO BE DELETED. IT (SS) A NO 357/AHD/2011 . A.Y. 2007 - 08 3 4. BEFORE US, LD. DR WAS UNABLE TO POINT OUT AS TO HOW ORDER OF LD. CIT(A) CAN BE SET ASIDE. LD. FIRST APPELLATE AUTHORITY HAS RECORDED A FINDING OF FACT THAT S THE SOCIETY HAD C EASED TO EXISTENCE W.E.F. 07 - 12 - 2005. A SEARCH ACTION HAS BEEN TAKEN ON FIRST NOVEMBER, 2006 I.E. MUCH BEFORE THE SEARCH ACTION CARRIED OUT IN THE NEPTUNE GROUP OF CASES. 5. WE HAVE PERUSED THE ASSESSMENT ORDER AND DO NOT FIND ANY JUSTIFICATION FOR EST IMATING THE INCOME IN THE HANDS OF ASSESSEE. THE ASSESSEE HAS POINTED OUT THAT IT HAS BEEN BIFURCATED INTO TWO PARTS. IT S ACCOUNT HAS BEEN CLOSED. LD. AO DID NOT TOUCH THIS ASPECT IN THE ASSESSMENT ORDER AND DID NOT VERIFY WHETHER ASSESSEE IS A ASSESSA BLE ENTITY OR NOT. HE SIMPLY MADE THE ADDITION. LD. FIRST APPELLATE AUTHORITY HAS CONSIDERED ALL THIS ASPECT AND DELETED THE ADDITION. AFTER GOING THROUGH THE ORDER OF LD. CIT(A), WE DO NOT FIND ANY REASON TO INTERFERE IN IT. ACCORDING, THE APPEAL OF T HE REVENUE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 15 - 05 - 201 5 . SD/ - SD/ - (G.D.AGRAWAL ) (RAJPAL YADAV ) VICE PRESIDENT JUDICIAL MEMBER AHMEDABAD. A.K. COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD