Smt. Godavariben R. Patel, Ahmedabad V. The Dy. CIT, Central Circle-1(2), Ahmedabad

ITSSA 407/AHD/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6413 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 17-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 17-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P SHARMA
• Assessee Lawyers: G C PIPARA
• Keywords: Search and seizure
• Section: 143(3); 153A; 201; 143(2); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER I.T.(SS)A. NOS. 406 & 407/AHD/2017 (ASSESSMENT YEARS : 2008-09 & 2009-10) SMT. GODAVARIBEN R. PATEL, 66, TIRTHNAGAR SOCIETY, PART-1, B/H. SUN-N- STEP CLUB, BHUYANGDEV, AHMEDABAD 380 061. VS. THE DCIT, CENTRAL CIRCLE 1(2), AHMEDABAD 380 015. [ PAN NO. ABRPP 7960 Q ] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI G. C. PIPARA, A.R. RESPONDENT BY : SHRI O. P. SHARMA, CIT-D.R. DATE OF HEARING 01.08.2019 DATE OF PRONOUNCEMENT 17.10.2019 O R D E R PER MS. MADHUMITA ROY - JM: BOTH THE APPEALS FILED BY THE ASSESSEE ARE DIRECTE D AGAINST THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)- 11, AHMEDABAD BOTH DATED 11.08.2017 UNDER SECTION 143(3)/153A OF THE I NCOME TAX ACT, 1961 (HEREINAFTER REFERRED AS TO THE ACT) ARISING OUT OF THE ORDER DATED 28.02.2014 PASSED BY THE DCIT, CENTRAL CIRCLE-1(2), AHMEDABAD FOR THE ASSESSMENT YEARS 2008-09 & 2009-10. IT(SS)A NOS. 406 & 407/AHD/2017 SMT GODAVARIBEN R. PATEL VS. DCIT ASST.YEARS 2008-09 & 2009-10 - 2 - SINCE BOTH THE APPEALS RELATE TO THE SAME ASSESSEE, THE SAME ARE HEARD ANALOGOUSLY AND ARE BEING DISPOSED OF BY A COMMON O RDER. 2. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSES SEE SUBMITTED THAT THE ORDER PASSED BY THE LEARNED AO U/S 153A/143(3) DATE D 28.02.2014 IS NOT MAINTAINABLE IN VIEW OF THE FACT THAT THERE WAS NO INCRIMINATING DOCUMENT FOUND DURING THE SEARCH PROCEEDINGS CONDUCTED UNDER SECTION 132 OF THE ACT DATED 27.04.2011. THE LEARNED AR FURTHER SUBMITTED THAT THE ADDITION IN THE SEARCH PROCEEDINGS WAS MADE ON ACCOUNT OF BEING DIV IDEND U/S 2(22)E OF THE ACT AMOUNTING TO RS.20,20,100/- WHICH WAS NOT BASED ON ANY SUCH DOCUMENTS. LEARNED AR IN RESPECT OF HIS CONTENTION RELIED UPON THE JUDGMENT OF PCIT-VS- SAUMYA CONSTRUCTION (PVT.) LTD. REPORTED IN 81 TAXM ANN.COM 292 (GUJARAT). ON THE OTHER HAND, LEARNED DR VEHEMENTLY SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. 3. HEARD THE RESPECTIVE PARTIES, PERUSED THE RELEVA NT MATERIALS AVAILABLE ON RECORD. THE YEARS INSERTED HEREIN ARE UNABATED ASSE SSMENT YEARS WHICH CAN BE DISTURBED IF THERE WAS SOME INCRIMINATING DOCUMENT FOUND DURING SEARCH. THE TIME LIMIT FOR ISSUING THE NOTICE U/S 143(2) FOR TH E A.Y. 2008-09 WAS SIX MONTHS FROM THE RELEVANT A.Y. I.E. 30.09.2009 AND I N CASE OF A.Y. 2009-10 IS 30.09.2010. BUT NO NOTICE WAS ISSUED BY THAT SPECIF IED TIME. BEING THE UNABATED ASSESSMENT YEAR THIS CAN REOPENED U/S 153A ONLY IN CASE OF INCRIMINATING DOCUMENTS FOUND DURING SEARCH. WE, ON THIS ASPECT RELY ON THE JUDGMENT PREFERRED BY THE LEARNED AR PASSED BY THE HONBLE HIGH COURT IN IT(SS)A NOS. 406 & 407/AHD/2017 SMT GODAVARIBEN R. PATEL VS. DCIT ASST.YEARS 2008-09 & 2009-10 - 3 - THE MATTER OF SAUMYA CONSTRUCTION (PVT) LTD. (SUPRA ). THE RELEVANT PORTION WHEREOF IS AS FOLLOWS: SECTION 153A OF THE INCOME-TAX ACT, 1961 - SEARCH AND SEIZURE - ASSESSMENT IN CASE OF (CONDITION PRECEDENT) - ASSESSMENT YEAR 2006-07 - UNDER SECTION 153A, AN ASSESSMENT HAS TO BE MADE IN RELATION TO S EARCH OR REQUISITION, NAMELY, IN RELATION TO MATERIAL DISCLOSED DURING SE ARCH OR REQUISITION; IF NO INCRIMINATING MATERIAL IS FOUND DURING SEARCH, NO A DDITION CAN BE MADE ON BASIS OF MATERIAL COLLECTED AFTER SEARCH [IN FAVOUR OF ASSESSEE] IN VIEW OF THE RATIO LAID DOWN IN THE ABOVE PREFERR ED JUDGMENT, WE ARE OF THE CONSIDERED OPINION THAT THE ORDER IMPUGNED U /S 153 R.W.S 143(3) IS LIABLE TO BE QUASHED. HENCE, THE SAME IS HEREBY QUASHED. 4. IN THE RESULT, BOTH THE ASSESSEES APPEALS ARE A LLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 17 / 10 / 201 9 SD/- SD /- ( WASEEM AHMED) ( MS. MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 17/10/2019 PRITIYADAV, SR.PS IT(SS)A NOS. 406 & 407/AHD/2017 SMT GODAVARIBEN R. PATEL VS. DCIT ASST.YEARS 2008-09 & 2009-10 - 4 - / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. () / THE CIT(A)-11, AHMEDABAD. 5. , ! ', #$%% / DR, ITAT, AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER, //TRUE COPY// / (DY./ASSTT.REGISTRAR) !, #$ / ITAT, AHMEDABAD 1. DATE OF DICTATION 01.08.2019 (DICTATION PAGES 2) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 08.08.2019 3. OTHER MEMBER. 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 08.08.2019 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER