M/s. Krishna Corporation, Mumbai V. The ACIT., Circle-1, Bhavnagar

ITSSA 41/AHD/2007

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9256 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 05-07-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 24-06-2013
• Assessment Year: misc
• Appeal Filed On: 26-02-2007
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: BHUPENDRAKUMAR
• Assessee Lawyers: A J PAREKH
• Section: 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, AHMEDABAD BEFORE SHRI G. C. GUPTA, HONBLE VICE PRESIDENT AN D SHRI A. K. GARODIA, ACCOUNTANT MEMBER I.T.(SS)A. NO.41 / AHD/2007 (BLOCK PERIOD 01.04.1990 TO 07.11.2000) M/S. KRISHNA CORPORATION, C/O SHRI VINOD S BUSHA, B/G-5, NAGESWAR BUILDING, PADMAWATI NAGAR, 150 FT. ROAD, THANA DISTT-401101 VS. ACIT, INV. CIRCLE, I, BHAVNAGAR PAN/GIR NO. : AACFK2773Q (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI A J PAREKH, AR RESPONDENT BY: SHRI BHUPENDRA KUMAR, SR. DR DATE OF HEARING: 27.06.2013 DATE OF PRONOUNCEMENT: 05.07.2013 O R D E R PER SHRI A. K. GARODIA, AM:- THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORD ER OF LD. CIT(A) IX, AHMEDABAD DATED 30.11.2006 FOR THE BLOCK PERIOD 01.04.1990 TO 07.11.2000. 2. BEFORE PROCEEDING TO DECIDE THE APPEAL, WE FEEL IT PROPER TO TAKE NOTE OF BRIEF HISTORY OF THIS APPEAL TILL DATE. TH IS APPEAL WAS EARLIER DECIDED BY THE TRIBUNAL AS PER TRIBUNAL ORDER DATED 09.02.2012 AND THE APPEAL OF THE ASSESSEE WAS DISMISSED. AGAINST THIS TRIBUNAL ORDER, THE ASSESSEE MOVED MISCELLANEOUS APPLICATION AND IN MIS CELLANEOUS APPLICATION NO.87/AHD/2012 DATED 06.07.2012, THE TR IBUNAL ORDER DATED I.T(SS).A.NO.41 /AHD/2007 2 09.02.2012 WAS RECALLED FOR THE LIMITED PURPOSE TO DECIDE THE ASSESSEES OBJECTION REGARDING VALIDITY OF THE JURISDICTION OF THE A.O. U/S 158 BD IN THE LIGHT OF THE WRITTEN SUBMISSION OF THE ASSESSEE FILED BEFORE THE TRIBUNAL DATED 28.04.2011 WHICH WAS AVAILABLE ON RECORD BUT WERE NOT CONSIDERED BY THE TRIBUNAL IN THIS TRIBUNAL ORDER DATED 09.02. 2012. THEREAFTER, THE APPEAL WAS HEARD AGAIN BY THE TRIBUNAL AND ORDER WA S PASSED ON 28.09.2012 AND IT WAS HELD THAT THE DECISION OF HON BLE APEX COURT RENDERED IN THE CASE OF MANISH MAHESHWARI VS ACIT HEAVILY RELIED UPON BY THE ASSESSEE, IS NOT APPLICABLE TO THE FACTS OF THIS CASE. THE TRIBUNAL ALSO NOTED THAT IT IS PERTINENT TO NOTE FROM THE AS SESSMENT ORDER THAT THE ASSESSEE WAS NOT COOPERATING DURING THE PROCEEDINGS BEFORE THE REVENUE. THE TRIBUNAL ALSO NOTED THAT AS PER THE ORDER OF TH E A.O. AND LD. CIT(A), IT IS EVIDENT THAT THE OFFICER WHO CONDUCTED THE SE ARCH, HAD UNEARTHED INCRIMINATING DOCUMENTS BELONGING TO THE ASSESSEE A ND HAD RECORDED HIS SATISFACTION TO PROCEED AGAINST THE ASSESSEE U/S 15 8BD OF THE INCOME TAX ACT, 1961 AND, THEREFORE, IT WOULD BE UNFAIR TO KNO CK DOWN THE ENTIRE ASSESSMENT FOR WANT OF SPECIFIC SHEET OF PAPER RECO RDING SATISFACTION WHEN THE OVERALL SATISFACTION LEAD TO THE FACTS AND SUCH SATISFACTION WAS DULY RECORDED BY THE APPROPRIATE OFFICER AT THE APPROPRI ATE TIME. AGAINST THIS TRIBUNAL ORDER, THE ASSESSEE AGAIN MOVED A MISCELLA NEOUS APPLICATION AND AS PER THE MISCELLANEOUS APPLICATION NO.236/AHD/201 2 DATED 12.04.2013, SECOND TRIBUNAL ORDER DATED 28.09.2012 WAS ALSO REC ALLED AS PER PARA 4 OF THIS TRIBUNAL ORDER DATED 12.04.2013 WHICH IS REPRO DUCED BELOW FOR THE SAKE OF READY REFERENCE: 4. AT THE OUTSET, WE MUST MENTION THAT THE ORDER P ASSED BY THE TRIBUNAL ON 28-09-2012 WAS ON THE LIMITED ISSUE OF JURISDICTION OF THE AO U/S 158BD OF THE ACT BECAUSE THIS CASE WAS R ECALLED EARLIER IN MA NO.87/AHD/2012 VIDE ORDER DATED 06-07-2012 TO DECIDE THE ISSUE FOR SUCH LIMITED PURPOSE. FURTHER, AT THE TIM E OF HEARING THE I.T(SS).A.NO.41 /AHD/2007 3 MAIN ISSUE RAISED BEFORE THE TRIBUNAL WAS THAT THE SATISFACTION NOTE RECORDED BY THE RELEVANT ASSESSING OFFICER FOR ISSU ANCE OF NOTICE U/S 158 BD OF THE ACT WAS NOT IN THE FILE OF THE RE VENUE. AFTER ELABORATE ARGUMENTS, THE BENCH HAD DECIDED THE MATT ER BY DELIVERING A SPEAKING ORDER AFTER CONSIDERING THE C ASE LAWS CITED BY THE ASSESSEE AT THE TIME OF HEARING BEFORE THE B ENCH. HOWEVER, THE LEARNED AR HAD POINTED BEFORE US THAT THERE WAS OTHER RELEVANT FACTUAL AND LEGAL ISSUES DISCUSSED IN THE WRITTEN S UBMISSION PLACED BEFORE THE BENCH AND THE SAME WERE NOT CONSIDERED B Y THE BENCH IN ITS ORDER. ON PERUSING THE WRITTEN SUBMISSION WE FIND THE SUBMISSION OF THE LEARNED AR HAS MERIT. SINCE CERTA IN FACTUAL AND LEGAL ASPECTS DISCUSSED IN THE WRITTEN SUBMISSIONS WERE NOT ARGUED BEFORE THE BENCH AT THE TIME OF HEARING THE SAME WA S NOT TAKEN NOTE OFF BY THE BENCH WHILE WRITING THE ORDER. THER EFORE IT APPEARS THAT A MISTAKE HAS OCCURRED IN THE ORDER OF THE TRI BUNAL AND TO RECTIFY THE SAME WE HEREBY RECALL OUR ORDER WITH RE SPECT TO THE LIMITED ISSUE TO BE ADJUDICATED BY VIRTUE OF THE OR DER IN MA NO.87/AHD/2012 DATED 06-07-2012. 3. HENCE, WE FEEL THAT NOW, WE ARE REQUIRED TO DECI DE THE ISSUE AS TO WHETHER THE JURISDICTION OF THE A.O. U/S 158BD IS V ALID OR NOT. AFTER GOING THROUGH BOTH THESE TRIBUNAL ORDERS IN MISCELL ANEOUS APPLICATION PROCEEDINGS IN MISCELLANEOUS APPLICATION 87/AHD/201 2 DATED 06.07.2012 AND MISCELLANEOUS APPLICATION 236/AHD/2012 DATED 12 .04.2013. HENCE, IN THE PRESENT ORDER, WE HAVE TO DECIDE ONLY THIS L IMITED ASPECT. 4. IN THE COURSE OF HEARING BEFORE US, IT WAS SUBMI TTED BY THE LD. A.R. THAT IF THE ASSESSMENT ORDER U/S 158BC IN THE CASE OF SEARCHED PERSON IS NOT VALID THEN THE SUBSEQUENT ORDER U/S 158BD IN TH E CASE OF OTHER PERSON IS ALSO NOT VALID. BUT APART FROM MAKING THIS CONT ENTION, HE COULD NOT PRODUCE BEFORE US ANY EVIDENCE IN SUPPORT OF THIS C ONTENTION THAT THE ORDER PASSED BY THE A.O. U/S 158BC IN THE CASE OF S EARCHED PERSON I.E. MUKESH M OZA WAS NOT A VALID ASSESSMENT AND HENCE, THIS ARGUMENT OF THE LD. A.R. IS NOT RENDERING ANY HELP TO THE ASSES SEE AND WE DO NOT FIND ANY REQUIREMENT TO COMMENT UPON THIS CONTENTION RAI SED BY THE LD. A.R. I.T(SS).A.NO.41 /AHD/2007 4 IN THE ABSENCE OF ANY EVIDENCE REGARDING THE FACT T HAT THE ORDER PASSED BY THE A.O. U/S 158BC IN THE CASE OF SEARCHED PERSON I .E. MUKESH M OZA WAS NOT VALID ASSESSMENT. 5. THE 2 ND ARGUMENT RAISED BY THE LD. A.R. WAS THIS THAT THER E IS NO SEIZURE IN THE CASE OF SEARCHED PERSON SHRI MUKESH M OZA AND, THEREFORE, CANNOT BE ANY SEIZED DOCUMENT ON THE BASIS OF WHICH A SATISFACTION CAN BE THERE OF THE A.O. OF THE SEARCHED PERSON THAT THERE IS ANY UNDISCLOSED INCOME OF SOME OTHER PERSON I.E. THE PRESENT ASSESS EE. AT THIS JUNCTURE, A QUERY WAS RAISED BY THE BENCH AS TO WHETHER ANY SUC H CONTENTION WAS RAISED BEFORE THE AUTHORITIES BELOW I.E. LD. CIT(A) OR THE A.O. AND IN REPLY, IT WAS SUBMITTED BY THE LD. A.R. THAT THIS C ONTENTION WAS VERY MUCH RAISED BEFORE LD. CIT(A) BUT NO FINDING IS GIV EN BY THEM IN THIS REGARD. THEREUPON, A PROPOSITION WAS MADE BY THE B ENCH AS TO WHETHER THE MATTER CAN BE RESTORED BACK TO THE FILE OF LD. CIT(A) FOR FRESH DECISION FOR A LIMITED ASPECT AS TO WHETHER THERE W AS ANY MATERIAL SEIZED OR NOT IN THE CASE OF SEARCHED PERSON I.E. MUKESH M OZA BASED UPON WHICH A SATISFACTION CAN BE HAD BY THE A.O. OF THE SEARCHED PERSON I.E. MUKESH M OZA THAT THERE WAS ANY UNDISCLOSED INCOME OF ANY OTHER PERSON I.E. THE PRESENT ASSESSEE. IN REPLY, IT WAS SUBMITTED BY THE LD. A.R. THAT THE MATTER MAY BE RESTORED BACK TO THE FI LE OF LD. CIT(A) BUT HE SHOULD BE GIVEN A FIXED TIME FOR DECIDING THE APPEA L AGAIN BY WAY OF SPEAKING ORDER. AS AGAINST THIS, IT WAS SUBMITTED BY THE LD. D.R. THAT SPEAKING ORDER HAS BEEN PASSED BY LD. CIT(A) AND, T HEREFORE, THE MATTER IS NOT REQUIRED TO BE RESTORED BACK TO HIS FILE FOR A FRESH DECISION. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE F IND THAT THIS IS NOTED BY THE A.O. IN THE ASSESSMENT ORDER THAT IN T HE COURSE OF SEARCH CARRIED OUT ON 07.11.2000 IN THE PREMISES OF MUKESH M OZA, VARIOUS I.T(SS).A.NO.41 /AHD/2007 5 INCRIMINATING DOCUMENTS AND PAPERS WERE FOUND AND S EIZED AND THE A.O. WHO MADE THE ASSESSMENT OF SHRI MUKESH M OZA U/S 15 8BC HAD CONSIDERED THE SEIZED MATERIAL IN THE SATISFACTION NOTE WRITTEN FOR FORMATION OF A BELIEF THAT THE PRESENT ASSESSEE HAD EARNED UNDISCLOSED INCOME FOR THE CONCERNED BLOCK PERIOD. BUT THERE I S NO FINDING GIVEN BY LD. CIT(A) AS TO WHETHER ANY MATERIAL WAS FOUND IN THE COURSE OF SEARCH CARRIED OUT IN THE CASE OF MUKESH M OZA ALTHOUGH IT IS THE CLAIM OF THE LD. A.R. THAT THIS CONTENTION WAS RAISED BEFORE LD. CIT(A) IN SUPPORT OF GROUND NO.1 RAISED BY THE ASSESSEE BEFORE LD. CIT(A ) WHICH WAS REJECTED BY HIM BY STATING THAT THIS GROUND IS GENE RAL IN NATURE. UNDER THESE FACTS, WE FEEL THAT IN THE INTEREST OF JUSTIC E, THIS MATTER SHOULD GO BACK TO THE FILE OF LD. CIT(A) FOR A FRESH DECISION ON THIS ASPECT ALONE, AS TO WHETHER THE A.O. OF THE PRESENT ASSESSEE COULD H AD ANY JURISDICTION ON THE ASSESSEE U/S 158BD AFTER EXAMINING THIS ASPECT AS TO WHETHER ANY INCRIMINATING MATERIAL/DOCUMENT WAS SEIZED IN THE C OURSE OF SEARCH CARRIED ON 07.11.2000 IN THE CASE OF MUKESH M OZA B ECAUSE WE FIND THAT THERE IS AN ARGUMENT OF THE LD. A.R. BEFORE US THAT ALTHOUGH A PAPER BOOK OF 221 PAGES HAD BEEN FILED BY THE REVENUE BEFORE T HE TRIBUNAL, THERE IS NO DOCUMENT AVAILABLE IN THE PAPER BOOK SHOWING ANY INCRIMINATING MATERIAL FOUND AND SEIZED IN THE COURSE OF SEARCH C ARRIED OUT ON 07.11.2000 IN THE CASE OF MUKESH M OZA. WE, THEREF ORE, SET ASIDE THE ORDER OF LD. CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE FOR A DECISION ON THIS LIMITED ASPECT AFTER PROVIDING ADEQUATE OPP ORTUNITY OF BEING HEARD TO BOTH THE SIDES AND AFTER EXAMINING THE RECORDS A ND HE SHOULD PASS A SPEAKING AND REASONED ORDER WITHIN A PERIOD OF THRE E MONTHS FROM THE DATE OF RECEIPT OF THIS TRIBUNAL ORDER. WE ALSO WA NT TO MAKE IT CLEAR THAT THE ASSESSEE SHOULD NOT SEEK ANY ADJOURNMENT BEFORE LD. CIT(A) WITHOUT I.T(SS).A.NO.41 /AHD/2007 6 COMPELLING REASONS AND SHOULD COOPERATE WITH HIM AN D SHOULD PROVIDE ALL THE DETAILS/EVIDENCES REQUIRED BY LD. CIT(A) WHICH ARE IN HIS POSSESSION AND CONTROL. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 8. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (G. C. GUPTA) (A. K. GARODIA) VICE PRESIDENT ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 27/6/13 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 28/6/13. OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 05/07/2013 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.5/7 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 5/7/2013 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .