Sri Bhaskar Chowdary, Bhubaneswar V. ACIT, Corporate Circle-1(2), Bhubaneswar

ITSSA 37/CTK/2016

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 3651 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 3 month(s) 21 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 19-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 07-03-2018
• Assessment Year: 2002-2003
• Appeal Filed On: 28-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAAD KIDWAI
• Assessee Lawyers: B D OJHA
• Keywords: Unexplained investment; Search and seizure

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI N.S.SAINI, AM & SHRI PAV AN KUMAR GADALE, JM ./ IT ( SS) A NO. 36 TO 38 / CTK /20 1 6 ( / ASSESSMENT YEAR : 2001 - 20 02 TO 2003 - 2004 ) SRI BHASKAR CHOWDARY, PLOT NO.A/103,SAHEED NAGAR BHUBANESWAR - 751007 VS. ACIT, CORPORATE CIRCLE - 1(2), BHUBANESWAR - 751007 ./ PAN NO. : A HXPB 8818 K ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHR I B.D.OJHA , AR /REVENUE BY : SHRI SAAD KIDWAI , CITDR / DATE OF HEARING : 07 / 03 /201 8 / DATE OF PRONOUNCEMENT 19 / 03 /201 8 / O R D E R PER SHRI PAV AN KUMAR GADALE, JM : THESE ARE THE APPEALS FILE D BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) - 3 , BHUBANESWAR ALL DATED 30 .06.2016 FOR THE ASSESSMENT YEARS 200 1 - 0 2 TO 2003 - 04 . 2. SINCE THE ISSUE AND FACTS INVOLVED IN THESE APPEALS ARE INTERCONNECTED AND COMMON , THEY ARE BEING HEARD AND DISPOSED OFF B Y THIS CONSOLIDATED ORDER . FOR THE SAKE OF CONVENIENCE, WE SHALL TAKE THE FACTS RAISED IN IT (SS) A NO. 36 /CTK/2017, WHEREIN THE ASSESSEE HAS THE FOLLOWING ADDITIONAL GROUNDS : - 1. BECAUSE THAT THE LEARNED ASSESSING OFFICER ERRED IN LAW AS WELL AS IN FACT BY ADDING THE DEPOSITS IN BANK ACCOUNT TO THE TOTAL INCOME OF THE APPELLANT WHICH IS NOT BASED ON ANY SEIZED MATERIAL AS THE ASSESSMENT FOR THE IMPUGNED YEAR WAS COMPLETED U/S.143(1) OF THE ACT AND THE TIME LIMIT FOR ISSUING THE NOTICE U/S.143(2) OF THE ACT HAS EXPIRED ON THE DATE OF SEARCH. THE GROUNDS RAISED IN IT(SS)A NO.37 & 38/CTK/2016 ARE AS UNDER : - 1. BECAUSE THAT THE LEARNED ASSESSING OFFICER ERRED IN LAW AS WELL AS IN FACT BY ADDING THE DEPOSITS IN BANK ACCOUNT TO THE TOTAL INCOME OF THE APPELLANT WHICH IS NOT BASED ON ANY SEIZED MATERIAL AS THE SRI BHASKAR CHOWDARY 2 ASSESSMENT FOR THE IMPUGNED YEAR WAS COMPLETED U/S.143(1) OF THE ACT AND THE TIME LIMIT FOR ISSUING THE NOTICE U/S.143(2) OF THE ACT HAS EXPIRED ON THE DATE OF SEARCH. 2. BECAUSE THAT THE LEARNED ASSESSIN G OFFICER ERRED IN LAW AS WELL AS IN FACT BY ADDING THE UNEXPLAINED INVESTMENT IN HOUSE PROPERTY TO THE TOTAL INCOME OF THE APPELLANT WHICH IS NOT BASED ON ANY SEIZED MATERIAL AS THE ASSESSMENT FOR THE IMPUGNED YEAR WAS COMPLETED U/S.143(1) OF THE ACT AND THE TIME LIMIT FOR ISSUING THE NOTICE U/S.143(2) OF THE ACT HAS EXPIRED ON THE DATE OF SEARCH. 3. FACTS IN BRIEF ARE THAT A SEARCH AND SEIZURE OPERATION WAS CONDUCTED IN THE RESIDENTIAL PREMISES OF THE ASSESSEE ON 30.09.2005 AND ACCORDINGLY THE AO COMPLE TED THE ASSESSMENT U/S.153A(B) OF THE ACT ON 31.12.2007 . IN APPEAL, THE CIT(A) CONFIRMED THE ORDER OF AO AND THE ASSESSEE FILED AN APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL VIDE ORDER DATED 10.10.2013 SET ASIDE THE ASSESSMENT TO THE FILE OF AO WITH A DI RECTION TO FRAME DE - NOVO ASSESSMENT AS PER LAW. SUBSEQUENTLY, THE AO MADE THE ADDITION OF RS. 4,91 , 672 / - FOR THE ASSESSMENT YEAR 2001 - 02, RS.2,29,640/ - & RS.3,21,352/ - FOR THE ASSESSMENT YEAR 2002 - 03 AND RS. 3,10,236, RS.64,260/ - AND RS.2,50,000/ - FOR THE A SSESSMENT YEAR 2003 - 04, RESPECTIVELY AND PASSED THE ORDER U/S.153A/254 OF THE ACT DATED 30.03.2015. 4. AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A), HOWEVER, THE CIT(A) CONFIRMED THE ACTION OF AO AND DISMISSED THE APPEA L OF ASSESSEE. 5. AGAINST THE ORDER OF CIT(A), THE ASSESSEE HAS COME UP IN APPEAL BEFORE THE TRIBUNAL. 6 . BEFORE US THE LD. AR SUBMITTED , THIS ADDITIONAL GROUND PLAYS A VITAL ROLE AND HAVE A BEARING ON THE ASSESSMENT WHERE THE ASSESSMENT HAS BEEN MADE BY T HE AO WITH ADDITIONS NOT BASED ON THE SEIZED MATERIAL AND SRI BHASKAR CHOWDARY 3 ALSO THE TIME LIMIT FOR ISSUE OF NOTICE U/S.143(2) OF THE ACT WA S EXPIRED ON THE DATE OF SEARCH, THEREFORE, HE PRAYED FOR ADMITTING THE ADDITIONAL GROUND AND ALLOW THE APPEAL. 7. CONTRA, LD. DR OPP OSED TO THE GROUND AND THE MATERIAL FILED AND RELIED ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD., (1998) 229 ITR 383 (SC) ON THE FACTS EMERGED OUT OF THE ASSESSMENT PROCEEDINGS. 8 . WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WITHOUT GOING INTO THE MERITS OF THE CASE, AT THIS STAGE, WE CONSIDER IT APPROPRIATE FIRST TO DECIDE THE LEGAL GROUND OF ISSUE OF NOTICE U/S.143(2) OF THE ACT RAISED BEFORE US AS ADDITIONAL GROUND BY THE ASSESSEE AND EX PLAINED THAT THE TIME LIMIT FOR ISSUE OF NOTICE U/S.143(2) OF THE ACT HAS EXPIRED ON THE DATE OF SEARCH WHEREAS LD. DR HAS OPPOSED TO THIS ADDITIONAL GROUND. ACCORDINGLY, WE CONSIDERING THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD (SUPRA) ADMIT THE ADDITIONAL GROUND RAISED BY THE ASSESSEE FOR THE FIRST TIME BEFORE THE TRIBUNAL AND REMIT THIS ADDITIONAL GROUND TO THE FILE OF CIT(A) TO ADJUDICATE AND PASS A SPEAKING ORDER ON MERITS. IT IS ALSO RELEVANT TO MENTION HERE TH AT IF THE CIT(A) FOUND THE NOTICE U/S.143(2) OF THE ACT HITS THE QUESTION OF LIMITATION, THEN THE ADDITIONS MADE BY THE AO WILL HAVE NO LEGS TO STAND, HOWEVER, THE ADDITIONS CAN BE MADE ON THE BASIS OF SEIZED MATERIAL. KEEPING IN VIEW OF THE FACTS AND CIRC UMSTANCES OF THE PRESENT CASE AND THE ARGUMENTS RAISED BY THE LD. AR, WE ARE OF THE VIEW THAT THE ADJUDICATION OF GROUNDS OF APPEAL RAISED BY THE ASSESSEE SRI BHASKAR CHOWDARY 4 AGAINST THE ADDITIONS BY THE AO AND CONFIRMED BY THE CIT(A) ARE NOT NECESSARY AT THIS STAGE AND THE I SSUE IS REMITTED TO THE FILE OF CIT(A). THUS, APPEAL S FILED BY THE ASSESSEE IN IT (SS) A NOS. 36 TO 38 /CTK/201 6 FOR THE ASSESSMENT YEARS 2001 - 2002, 200 2 - 03 & 2003 - 04 ARE ALLOWED FOR STATISTICAL PURPOSES. 9 . IN THE RESULT, ALL APPEALS OF ASSESSEE ARE ALLOWED F OR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 19 / 03 /201 8 . SD/ - (N. S. SAINI) SD/ - ( PAVAN KUMAR GADALE ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER CUTTACK ; DATED 19 / 03 /201 8 . . / PKM , SENIOR PRIVATE SECRETARY / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - SRI BHASKAR CHOWDARY, PLOT NO.A/103,SAHEED NAGAR BHUBANESWAR - 751007 2. / THE RESPONDENT - ACIT, CORPORATE CIRCLE - 1(2), BHUBANESWAR - 751007 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, I TAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//