The ACIT,Vapi Circle, Vapi V. Shri Narvirsinh Parmar L/h.late of Ramaben D.Zala, Vapi

ITSSA 381/AHD/2011

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0152 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 17 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 06-06-2014
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: misc
• Appeal Filed On: 19-05-2011
• Court: TRIBUNAL
• Department Lawyers: ROOP CHAND
• Assessee Lawyers: J P SHAH
• Keywords: Search and seizure; Loose papers; Block assessment
• Section: 143(3); 132

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD 0 00 0 0 00 0 , , , , !'# !$ !'# !$ !'# !$ !'# !$0 00 0! !! !0 00 0 %$ %$ %$ %$, , , , &' ( &' ( &' ( &' ( & & & & BEFORE SHRI G.C. GUPTA, VICE PRESIDENT AND SHRI N.S. SAINI, ACCOUNTANT MEMBER IT(SS)A NO. 381/AHD/2011 BLOCK ASSESSMENT PERIOD 1997-98 TO 2003-04 ASSISTANT COMMISSIONER OF INCOME TAX, VAPI CIRCLE, VAPI. VS SHRI NARVIRSINH PARMAR LEGAL HEIR OF SMT. RAMABEN D. ZALA, VAPI. PAN: AABPZ1948F )*/ APPELLANT ,-)* / RESPONDENT REVENUE BY : SHRI ROOPCHAND, SR. DR ASSESSEE(S) BY : SHRI J.P. SHAH, AR $'. / 0'/ // / DATE OF HEARING : 30/05/2014 123 / 0' / DATE OF PRONOUNCEMENT : 06/06/2014 &4 &4 &4 &4/ // / O R D E R PER SHRI N.S. SAINI, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE REVENUE AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), VALSAD DATED 05.01.2011. 2. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APP EAL: 1. THE LD. CIT(A) HAS FAILED TO APPRECIATE THAT FRE SH PROCEEDINGS U/S.158BD WERE INITIATED 15.10.2007 AND THE SAME WERE DISPOSED OFF OF BY AN ORDER U/S.158BD DAT ED 30.10.2009, WHEREIN THE ADDITIONS MADE IN THE ORIGI NAL ORDER HAVE BEEN RETAINED. IT(SS)A NO. 381/AHD/2011 SHRI NARVIRSINH PARMAR FOR BLOCK PERIOD1997-98 TO 2003-04 - 2 - 2. THE LD. CIT(A) HAS GRANTED RELIEF TO THE ASSESSE E WITHOUT GOING INTO THE FACTS OF THE CASE BROUGHT IN BY THE DEPARTMENT IN THE ASSESSMENT ORDER WHEREIN IT HAS B EEN CLARIFIED WHY THE FRESH PROCEEDINGS HAVE BEEN INITI ATED. 3. THE LD. C1T(A) HAS ERRED IN HOLDING THAT THE AO DID NOT CONSIDER THE SUBMISSIONS DATED 15.10.2009 MADE BY T HE ASSESSEE, WITHOUT APPRECIATING THE FACTS THAT SUCH SUBMISSIONS HAVE BEEN CONSIDERED BY THE AO, AS EVID ENT FROM THE PAGE NO.2 TO 5 OF THE ASSESSMENT ORDER. 4. THE LD. CIT(A) HAS ERRED IN NOT CONSIDERING THE FACTS BROUGHT IN BY THE DEPARTMENT THAT DEPARTMENTAL APPE ALS ARE PENDING WITH THE VARIOUS APPELLATE AUTHORITIES IN THE PARMAR GROUP OF CASES. 5. THE LD. CIT(A) HAS GRANTED RELIEF TO THE ASSESSE E, RELYING UPON THE SUBMISSIONS MADE BY THE ASSESSEE, WITHOUT GOING INTO MERITS OF THE ADDITIONS MADE BY THE ASSE SSEE. 3. A SEARCH AND SEIZURE OPERATION U/S. 132 OF THE ACT WAS CARRIED OUT AT THE RESIDENTIAL PREMISES OF SHRI KRISHNAKUMA R R. PARMAR AT PARMARWADI, S. DELKAR MARG, SILVASSA (D&H) ON 17.07 .2002. DURING THE COURSE OF SEARCH, THREE LOOSE PAPER FILES WERE FOUN D AND SEIZED FROM THE RESIDENCE OF SHRI K.R. PARMAR. AS PER LOOSE PAPERS , IT WAS FOUND THAT THE FLATS WERE BEING SOLD @ RS 651/- PER SQ.FT. AS AGAI NST THE APPARENT CONSIDERATION WHICH WAS BELOW RS 500/-. IT WAS ALS O FOUND THAT THE LAND FOR DEVELOPMENT WAS SOLD @ RS 175/- PER SQ.FT. FOR F&G BUILDING AS AGAINST APPARENT CONSIDERATION OF RS 125/- PER SQ.FT. THERE FORE, THE ASSESSING OFFICER MADE ADDITION OF RS 19,93,200/- ON ACCOUNT OF UNDISCLOSED PROFIT ON INITIAL INVESTMENT IN LAND AND RS 60,19,464/- ON AC COUNT OF UNDISCLOSED PROFIT ON SALE OF FLATS IN BUILDING F&G. 4. ON APPEAL FILED BY THE ASSESSEE, THE COMMISSION ER OF INCOME TAX (APPEALS) QUASHED THE ORDER OF THE ASSESSING OF FICER PASSED ON IT(SS)A NO. 381/AHD/2011 SHRI NARVIRSINH PARMAR FOR BLOCK PERIOD1997-98 TO 2003-04 - 3 - 30.10.2009 UNDER SECTION 143(3) READ WITH SECTION 1 58BD OF THE ACT WITH THE FOLLOWING OBSERVATION: BEFORE ME THE LD. AR CONTENDED THAT THE SAID ASSES SMENT IS ILLEGAL AND DUPLICATION OF THE ASSESSMENT MADE EARL IER VIDE ORDER DATED 29.12.2006. FURTHER, THE APPELLANT CONTENDED THAT THE MATTER HAS ALREADY TRAVELLED TO LD. CIT(A) AND HON BLE ITAT, AHMEDABAD. THE RECOVERY OF DEMAND WAS STAYED BY TH E HON'BLE GUJARAT HC VIDE ORDER DATED. 29.12.2009. THEREFORE, THE APPELLANT PLEADED THAT THE ASSESSMENT ORDER SHOULD BE SQUASHED AND BE TREATED AS ILLEGAL. DURING THE APPELLATE PRO CEEDING THE ID. AR ALSO RAISED CERTAIN TECHNICAL ISSUE AGAINST THE ASSESSMENT ORDER. I HAVE CAREFULLY CONSIDERED THE SUBMISSION O F THE ID. AR. I HAVE ALSO PERUSED THE ORDER OF THE AO. IT WAS SEEN FROM THE ASSESSMENT ORDER THAT THE APPELLANT HAS DULY BROUGH T TO THE NOTICE OF THE AO VIDE SUBMISSION DATED 15.10.2009 T HAT THE PROPOSED ADDITION HAS BEEN ALREADY MADE IN THE ORDE R DATED. 29.12.2006. FURTHER, THE APPELLANT STATED THAT THE ADDITIONS MADE IN THESE CASES HAVE BEEN DELETED BY THE CIT(A) , AND HON'BLE ITAT, AHMEDABAD BUT THE AO IGNORED WITHOUT ANY REASON. BEFORE ME THE ID. AR FURNISHED A COPY OF TH E ASSESSMENT ORDER DATED. 29.12.2006, ORDER OF THE ID . CIT(A) DATED. 4.09.2008, COPY OF THE ORDER GIVING EFFECT T O THE ORDER OF CIT(A) AND COPY OF THE HON'BLE HC FOR STAY OF DEMAN D. THEREFORE, THERE IS NO DOUBT THAT THE IMPUGNED ORDE R IS DUPLICATION/DOUBLE ASSESSMENT. HENCE, THE IMPUGNED ORDER IS SQUASHED AS NO-NEST. AS THE ENTIRE ASSESSMENT ORDER IS TREATED NULL AND VOID, THE GROUNDS OF APPEAL RAISED ARE NOT DEALT WITH IN THIS APPEAL. THE APPEAL OF THE APPELLANT IS ALLOWED . 5. THE DEPARTMENTAL REPRESENTATIVE COULD NOT POINT OUT ANY SPECIFIC ERROR IN THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS). 6. THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE S UBMITTED THAT THE ASSESSEE FILED WRIT PETITION BEFORE THE HONBLE GUJARAT HIGH COURT AGAINST THE ORDER OF THE ASSESSING OFFICER PASSED U/S. 143( 3) READ WITH SECTION 158BD OF THE ACT ON 30.10.2009 AND AS AN ABUNDANT P ROTECTION ALSO FILED APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEA LS) IT(SS)A NO. 381/AHD/2011 SHRI NARVIRSINH PARMAR FOR BLOCK PERIOD1997-98 TO 2003-04 - 4 - 7. THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE F ILED BEFORE US A COPY OF ORDER OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF NARVIRSINGH PARMAR LEGAL HEIR OF LATE RAMABEN D ZALA VS. ACIT I N SPECIAL CIVIL APPLICATION NO. 12242 OF 2009 AND SUBMITTED THAT TH E HONBLE HIGH COURT HELD AS UNDER: 15. WE NOTICE THAT ON THE IDENTICAL GROUNDS OF UNA CCOUNTED INITIAL INVESTMENT AND UNDISCLOSED PROFIT ON SALE O F FLATS REVEALED FROM THE SEIZED MATERIAL, THE SECOND NOTICE UNDER S ECTION 158BD IS ISSUED AGAINST THE PRESENT PETITIONER. ALTHOUGH THE SAME HAS RESULTED INTO THE ASSESSING OFFICER HAVING MADE CER TAIN ADDITIONS ON THE GROUND OF UNDISCLOSED INCOME HAVING BEEN PRO VED, THE PETITIONER HAS CHALLENGED THE SAID ASSESSMENT DATED 30.01.2009 BEFORE THE CIT(APPEALS), WE SEE NO REASON TO ALLOW CONTINUATION OF SUCH SECOND ROUND OF LITIGATION PARTICULARLY, WH EN IN CASE OF SHRI KRISHNAKUMAR PARMAR, THE PROCEEDINGS INITIATED FOR BLOCK PERIOD UNDER SECTION 158BC HAVE RESULTED INTO DELET ION OF ADDITIONS MADE ON THE VERY GROUND OF UNDISCLOSED IN COME. THIS COURT AND THE APEX COURT HAVING CONFIRMED SUCH DECI SION OF THE TRIBUNAL, ON IDENTICAL SET OF FACTS AND THE BACKGRO UND TAKING THE VERY BASE OF LOOSE PAPERS FOUND DURING SEARCH, WHEN SUCH SECOND NOTICE UNDER SECTION 158BD HAS BEEN ISSUED, WE ARE OF THE FIRM OPINION THAT RELEGATING THE PETITIONER TO THE JURISDICTION OF THE CIT(APPEALS) WOULD SURELY NOT ONLY NOT SERVE THE PURPOSE BUT THAT WOULD DEFEAT THE VERY CAUSE OF JUSTICE. IN CIDENTALLY, IT IS NEEDED TO MENTION THAT SUBSEQUENT ORDER OF ASSESSME NT UNDER SECTION 158BD IMPUGNED IN THE PRESENT PETITION HAS BEEN PASSED ON 30.01.2009. THIS COURT IN THE CASE OF SEARCHED P ERSON DISMISSED REVENUE'S APPEALS ON 19.1.2009 AND THIS F ACT WAS BROUGHT TO THE NOTICE OF ASSESSING OFFICER WHO ON T HE GROUND OF DEPARTMENT PREFERRING SLP DID NOT HEED TO THAT VITA L FACT. UNDER NO CIRCUMSTANCES, THE VERY FOUNDATIONAL FACTS AND M ATERIALS, NOT SUSTAINED IN CASE OF THE SEARCHED PERSON, BE PERMIT TED TO BE USED IN CASE OF PERSON OTHER THAN SEARCHED PERSON F OR THE ALLEGED UNDISCLOSED INCOME AND THEREBY ALLOWING CON TINUATION OF SUCH PROCEEDINGS. THUS, ON CUMULATIVE EXAMINATION O F THE ENTIRE GAMUT OF FACTS, PETITION OF THE PRESENT PETITIONER DESERVES TO BE ALLOWED. 16. THE IMPUGNED ORDER DATED 30.10.2009 PASSED FOR THE BLOCK ASSESSMENT PURSUANT TO THE SECOND NOTICE UNDE R SECTION 158BD OF THE ACT BY THE ASSESSING OFFICER AND ALL C ONSEQUENTIAL PROCEEDINGS ARE HEREBY QUASHED. IT(SS)A NO. 381/AHD/2011 SHRI NARVIRSINH PARMAR FOR BLOCK PERIOD1997-98 TO 2003-04 - 5 - 8. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, T HE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON FRIDAY, THE 6 TH OF JUNE, 2014 AT AHMEDABAD. SD/- SD/- (G.C. GUPTA) VICE PRESIDENT ( N.S. SAINI) ACCOUNTANT MEMBER AHMEDABAD; DATED 06/06/2014 GHANSHYAM MAURYA, SR. P.S. TRUE COPY &4 / ,5 6&53 &4 / ,5 6&53 &4 / ,5 6&53 &4 / ,5 6&53/ COPY OF THE ORDER FORWARDED TO : 1. )* / THE APPELLANT 2. ,-)* / THE RESPONDENT. 3. ## 7 / CONCERNED CIT 4. 7() / THE CIT(A)-III, AHMEDABAD 5. 5': ,$ , , / DR, ITAT, AHMEDABAD 6. ;< =. / GUARD FILE. &4$ &4$ &4$ &4$ / BY ORDER, / // / # # # # ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD