Siksha 'O' Anusandhan, Bhubaneswar V. ACIT, Bhubaneswar

ITSSA 39/CTK/2008

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8256 (ITAT-CUTTACK)
• Duration Of Justice: 2 year(s) 8 month(s) 17 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 23-06-2011
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 14-06-2011
• Assessment Year: 2000-2001
• Appeal Filed On: 06-10-2008
• Court: TRIBUNAL
• Department Lawyers: PARAMITA TRIPATHY
• Assessee Lawyers: G NAIK AN D RAJAT KAR ARS
• Keywords: Opportunity of being heard
• Section: 153A; 32

Judgement Text

IN THE INCME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE : HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER, AND HONBLE SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER. IT (SS) A NO. 39, 40, 41,42,43, 44 AND 45/CTK/2008 (ASSESSMENT YEAR 2000 - 01, 2001 - 02, 200 2 - 03, 2003 - 04, 2004 - 05 2005 - 06 AND 2006 - 07) SIKHYA O ANUSANDHAN, 224, DHARMA VIHAR, KHANDAGIRI, BHUBANESWAR AN:AABTS 1525 R VERSUS ASST.COMMISSIONER OF INCOME - TAX, CIRCLE 1(2), BHUBANESWAR. (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI G.NAIK, AN D RAJAT KAR, ARS FOR THE RESPONDENT SMT. PARAMITA TRIPATHY, DR ORDER PER BENCH : IN ALL THE CASES, V IDE CONSOLIDATED ORDER DT.27.7.2009 IN ITA NO.39 TO 45/CTK/2008, THE TRIBUNAL HAD RESTORED THE MATTER TO THE LEARNED CIT(A) TO DECIDE FIRST THE ADDITIONAL GROUND OF THE ASSESSEE RELATING TO THE JURISDICTION OF ASSESSMENT U/S.153A AND DECIDE THE OTHER GROUNDS ON MERITS AFTER GIVING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. AGAINST THIS ORDER, THE ASSESSEE WENT ON APPEAL U/S.260A BEFORE THE HONBLE H IGH COURT OF ORISSA AND VIDE ORDER DT. 2.7.2010 IN ITA NO.71 OF 2009 HONBLE COURT HAS DISPOSED OF THE SAME HOLDING THAT THE TRIBUNAL HAS TO DECIDE THE MATTER IN THE LIGHT OF THE LEGAL POSITION HIGHLIGHTED IN THE SAID ORDER AFTER VERIFYING THE RECORDS WITH REGARD TO THE STAND TAKEN BY THE ASSESSEE AND BECAUSE OF INADEQUATE FACTUAL FINDINGS, THEY DIRECTED THE TRIBUNAL TO REHEAR THE MATTER AND AFTERWARDS IF THE TRIBUNAL COMES TO THE CONCLUSION THAT THERE WAS NO SEARCH WARRANT IN THE NAME OF THE ASSESSEE, AS C ONTENDED BY THE ASSESSEE, THEN IT WOULD BE OPEN TO THE DEPARTMENT TO MAKE ASSESSMENT IN A MANNER OTHER THAN SECTION 153A, IF PERMISSIBLE UNDER LAW. SOON AFTER THE RECEIPT OF THE SAID ORDER, THE APPEALS WERE FIXED FOR HEARING BY ISSUING NOTICES TO BOTH THE PARTIES AND SCHEDULED FOR HEARING O N 26. 4.2011. ON THAT DATE, THE LEARNED DR SOUGHT FOR ADJOURNMENT FOR PROD UCING THE SEARCH WARRANT AS WAS REFERRED TO BY THE HONBLE HIGH COURT IT(SS)A NO.39, 40, 41,42,43, 44 AND 45/CTK/2008 2 OF ORISSA VIDE ORDER DT.2.7.2010 (SUPRA). HENCE, THE HEARING OF THE APPEALS WA S ADJOURNED TO 2.6.2011 AND BOTH PARTIES WERE INFORMED IN THE OPEN COURT. SINCE ON 2.6.2011 THE LEARNED ACCOUNT MEMBER WAS ON LEAVE, THE HEARING WAS ADJOURNED TO 14.6.2011. 2. ON DT.14.6.2011 THE CASES WERE HEARD AND T HE DEPARTMENT FAILED TO PRODUCE THE S EARCH WARRANT STATED TO HAVE BEEN ISSUED IN THE NAME OF THE ASSESSEE ALONG WITH RECORDS CONNECTED THERETO. ON THE OTHER HAND, THE LEARNED DR HAS VEHEMENTLY ARGUED CONTENDING INTER ALIA THAT THE STAND OF THE DEPARTMENT IS FROM THE VERY BEGINNING TO THE EFFE CT THAT THE ASSESSEES CASE FALLS AS OTHER PERSON MENTIONED IN SECTION 153C THEREFORE THE ASSESS MENT ORDER S PASSED AGAINST THE ASSESSEE ARE PERFECTLY VALID AND THEY ARE NOT LIABLE TO BE DISREGARDED FOR THE REASON OF WRONG QUOTING THE PROVISIONS OF SECTIO N 153A AS QUOTED IN THE ASSESSMENT ORDERS. THIS STAND OF THE DEPARTMENT IS THERE SINCE THE VERY BEGINNING WHICH HAS BEEN VENTILATED BY THE DEPARTMENT IN THE WRITTEN SUBMISSIONS DT.8.4.2099 SUBMITTED BY THE THEN DR WHILE ARGUING THE ADDITIONAL GROUND OF JU RISDICTION RAISED BY THE ASSESSEE IN THIS MATTER. 3. THE LEAR NED AR OF THE ASSESSEE HAS REITERATED HIS STAND TO THE EFFECT THAT IN VIEW OF THE DECISION OF HONBLE ORISSA HIGH COURT (SUPRA) THE TRIBUNAL HAS TO COME TO A CONCLUSION WHETHER THERE WAS SEARCH W ARRANT ISSUED IN THE NAME OF THE ASSESSEE OR NOT AND SINCE THE LEARNED DR IS NOT ABLE TO PRODUCE ANY SUCH RECORD OR THE ALLEGED WARRANT OF SEARCH ISSUED IN THE NAME OF THE ASSESSEE BEFORE THE TRIBUNAL, HENCE, AS PER THE DIRECTION OF THE HONBLE JURISDICTIO NAL HIGH COURT IN PARAGRAPH 10 OF THE ORDER DT.2.7.2010 AT PAGE 16, IT IS EVIDENT THAT THERE IS NO SUCH WARRANT IN THE CASE OF THE ASSESSEE AND THEREFORE, THE ENTIRE PROCEEDINGS INITIATED U/S.153A IS WITHOUT JURISDICTION AND IS LIABLE TO BE QUASHED ACCORDI NGLY. HE FURTHER IT(SS)A NO.39, 40, 41,42,43, 44 AND 45/CTK/2008 3 SUBMITTED THAT WHEN THE PROCEEDINGS ARE LIABLE TO BE QUASHED FOR WANT OF JURISDICTION, THE MERITS OF THE CASE NEED NOT BE EXAMINED. 4. IN REPLY TO THE ABOVE SUBMISSIONS OF THE LEARNED AR OF THE ASSESSEE, THE LEARNED DR HAS REITERATED THE S TAND OF THE DEPARTMENT AS MENTIONED IN THE WRITTEN SUBMISSION ON 8.5.2009 BY THE THEN LEARNED DR AND CONTENDED VEHEMENTLY TO THE EFFECT THAT THE ASSESSMENT ORDER S MADE U/S.153A IS NOT PREJUDICIAL TO THE ASSESSEE OR TO THE DEPARTMENT AND ON GOING THROUGH TH E ORDER S PASSED BY THE ASSESSING OFFICER AND LEARNED CIT(A) IT IS THE STAND OF THE DEPARTMENT IS VERY CLEAR THAT THE PROVISIONS OF SECTION 153C IS WITH REGARD TO ASCERTAIN JURISDICTION IN CASE OF OTHER PERSONS THAN THE ASSESSEE AND THERE IS NO PROCEDURE PRESCRIBED IN THE ACT OR RULES TO ISSUE A SEPARATE NOTICE U/S.153C AND HENCE, THE ASSESSEES CONTENTION THAT THE ASSESSMENT ORDERS PASSED BY THE ASSESSING OFFICER U/S.153A ARE WITHOUT JURISDICTION IS NOT AT ALL SUSTAINABLE FOR LEGAL SCRUTINY. HENCE, HE PRA YED TO REJECT THE GROUND RAISED BY THE ASSESSEE IN THIS REGARD AND OTHER ISSUES RAISED BY THE ASSESSEE ON MERITS MAY BE DISPOSED OF. 5. ON CAREFUL CONSIDERATION OF THE MATERIAL MADE AVAILABLE TO THE TRIBUNAL AND ANALYZING THE SAME IN THE LIGHT OF THE RIVAL SUBMISSIONS OF BOTH THE PARTIES MORE SO IN THE LIGHT OF THE ORDER DT.2.7.2010 OF HONBLE HIGH COURT OF ORISSA (SUPRA) IT IS FOUND THAT THE CONTENTION OF THE ASSESSEE THAT THERE IS NO WARRANT OF SEARCH ISSUED IN THE NAME OF THE ASSESSEE TO CONDUCT THE SEAR CH U/S.1 32 IS CORRECT , HENCE, NO PROCEEDING U/S.153A COULD BE INITIATED AGAINST THE ASSESSEE. IF FIND SUITABLE TO THE DEPARTMENT THEY HAVE TO PROCEED WITH THE ASSESSEE U/S.153C ONLY AFTER FOLLOWING THE MANDATORY REQUIREMENTS AS MENTIONED IN THE LAW. IN VI EW OF NON - PRODUCTION OF SEARCH WARRANT STATED TO HAVE BEEN ISSUED IN THE NAME OF THE ASSESSEE BY THE DEPARTMENT, WE ARE OF THE CONSIDERED VIEW THAT THE DEPARTMENT IS NOT ABLE IT(SS)A NO.39, 40, 41,42,43, 44 AND 45/CTK/2008 4 TO PRODUCE ANYTHING MUCH LESS THE ALLEGED SEARCH WARRANT STATED TO HAVE BEEN ISSU ED IN THE NAME OF THE ASSESSEE. THEREFORE, AS CONTENDED BY THE LEARNED AR OF THE ASSESSEE, IT IS CLEAR THAT NO PROCEEDINGS U/S.153A COULD BE INITIATED AGAINST THE ASSESSEE FOR WANT OF WARRANT OF SEARCH IN THE CASE OF THE ASSESSEE. CONSEQUENTLY THE ASSESSME NTS MADE AGAINST THE ASSESSEE U/S.153A ARE HEREBY FOUND TO BE WITHOUT JURISDICTION AND ARE LIABLE TO BE QUASHED. ACCORDINGLY, THE ASSESSMENTS IN QUESTION ARE HEREBY QUASHED. AS WE HAVE F OUND THAT THE DEPARTMENT HAS NOT BEEN ABLE TO PRODUCE THE WARRANT OF S EARCH STATED TO HAVE BEEN ISSUED IN THE NAME OF THE ASSESSEE AND IN VIEW OF OUR FINDING THAT IN ABSENCE OF SUCH WARRANT OF SEARCH IN THE NAME OF THE ASSESSEE, THE PROCEEDINGS U/S.153A ARE WITHOUT JURISDICTION , ON MERIT S OF THE ISSUES RAISED BY THE ASSESSEE IN ALL THESE APPEALS NEED NOT BE ADJU DICATED AS THEY ARE CONSEQUENTIAL TO THE ASSESSMENT ORDER S PASSED U/S.153A. FOR THIS, WE RELY ON THE DECISION OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF RAWATMAL HARAKCHAND V. CIT [129 ITR 346 (CAL)], WHEREIN IT WA S HELD WHILE CONSIDERING THE REASSESSMENT MADE U/S.148 , THAT AS THE REASSESSMENT U/S.148 ARE QUASHED AS NOTICE U/S.148 WAS NOT VALID THE CONSEQUENCE WILL FOLLOW AND THERE IS NO NEED TO PASS ORDER ON MERITS OF ADDITIONS IN REASSESSMENT. THE ANALOGY IN THE P RESENT CASES BEING SAME, WE RESPECTFULLY FOLLOW THE DECISION OF CALCUTTA HIGH COURT (SUPRA) AS NO CONTRA DECISION WAS BROUGHT TO OUR ATTENTION , WE HEREBY QUASH THE IMPUGNED ASSESSMENTS IN VIEW OF THE FINDING OF FACTUAL ASPECT I.E., ABSENCE OF WARRANT OF SE ARCH IN THE NAME OF THE ASSESSEE, NO PROCEEDING U/S.153A CAN BE INITIATED AGAINST THE ASSESSEE AND ALSO THERE IS NO NEED TO ADJUDICATE THE MERITS OF THE ADDITIONS MADE IN SUCH ASSESSMENTS. 6. AS THE HONBLE HIGH COURT OF ORISSA ITSELF HAS MADE AN OBSERVATI ON IN PARAGRAPH 10 OF ITS ORDER DT.2.7.2010 THAT IN CASE IT IS CONCLUDED THAT THERE IT(SS)A NO.39, 40, 41,42,43, 44 AND 45/CTK/2008 5 IS NO SEARCH WARRANT IN THE CASE OF THE ASSESSEE, IT WOULD BE OPEN TO THE DEPARTMENT TO MAKE ASSESSMENT IN THE MANNER OTHER THAN 153A, IF PERMISSIBLE UNDER THE LAW. 7. IN T HE RESULT ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED. PRONOUNCED IN OPEN COURT ON DT. 23.6.2011 SD/ - SD/ - (K.K.GUPTA) ACCOUNTANT MEMBER (K.S.S.PRASAD RAO) JUDICIAL MEMBER DATE: 23.6.2011 H.K.PADHEE, SENIOR PRIVATE SECRETARY. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT: SIKHYA O ANUSANDHAN, 224, DHARMA VIHAR, KHANDAGIRI, BHUBANESWAR 2. THE RESPONDENT: ASST.COMMISSIONER OF INCOME - TAX, CIRCLE 1(2), BHUBANESWAR. 3. THE CIT, 4. THE CIT(A), 5. THE DR, CUTTACK 6. GUARD FILE (IN DUPLICATE) TRUE COPY, BY ORDER, SENIOR PRIVATE SECRETARY.