M/s. PUNJABI GHASITAARAM HALWAI (P.G), MUMBAI V. ACIT CIR - 18(2), MUMBAI

ITSSA 42/MUM/2007

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 1534 (ITAT-MUMBAI)
• Duration Of Justice: 8 year(s) 10 month(s) 6 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 19-01-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 24-02-2015
• Assessment Year: misc
• Appeal Filed On: 13-03-2007
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AJIT K SHRIVASTAVA
• Assessee Lawyers: V K TULSIAN
• Keywords: Rectification of order; Search and seizure; Block assessment; Condonation of delay
• Section: 154; 15

Judgement Text

IT(SS) 42/MUM/2007 1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D , MUMBAI , , BEFORE SHRI AMIT SHUKLA , JUDICIAL MEMBER AND SHRI RA MIT K OCH AR , ACCOUNTAN T MEMBER IT(SS) 42 /MUM/20 07 BLOCK PERIOD 01.04.1990 TO 14.09.2000 PUNJABI GHASITARAM HALWAI (P.G.), A TO Z INDUSTRIAL ESTATE, G K MARG, LOWER PAREL, MUMBAI - 400 013 .: PAN: AACHD 1828 F VS ACIT - CIR . 18 ( 2 ), PIRAMAL CHAMBERS, MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI V K TULSIAN RESPONDENT BY : SHRI AJIT K SHRIVASTAVA /DATE OF HEARING : 19 - 0 1 - 201 6 / DATE OF PRONOUNCEMENT : 19 - 01 - 2016 ORDER : . . : PER AMIT SHUKLA , JM : T HE AFORESAID APPEAL HAS BEEN FILED BY THE A SSESSEE AGAINST IMPUGNED ORDER DATED 2 7 . 06 .20 0 3 , PASSED BY CIT(A) - 28 , MUMBAI IN RELATION TO THE RECTIFICATION PROCEEDINGS U/S 154 FOR TH E BLOCK PERIOD 01.04.1990 TO 14.09.2000 ON FOLLOWING GROUNDS: 1. THE HONBLE COMMISSIONER OF INCOME - TAX (APPEALS) XVIII/[CIT(A)] ERRED IN CONFIRMING THE ORDER PASSED BY THE ASSESSING OFFICER [AO] UNDER SECTION 154 OF THE INCOME - TAX, 1961 [THE ACT] WITHOUT GIVING PROPER OPPORTUNITY OF HEARING TO THE APPELLANT. 2. THE LD. CIT(A) FAILED TO APPRECIATE THAT THE ORDER PASSED BY THE AO UNDER SECTION 154 OF THE ACT WAS HAD, ILLEGAL AND VOID IN LAW AND REQUIRES TO BE QUASHED. 3. IT IS SUBMITTED THAT IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE, AND IN LAW NO SUCH RECTIFICATION WAS PERMISSIBLE. 2. AT THE OUTSET, IT WAS NOTICED THAT, APPEAL OF THE ASSESSEE WAS TIME BARRED BY 1256 DAYS. IT(SS) 42/MUM/2007 2 3. BEFORE US, THE LD. COUNSEL EXPLAIN ING THE ENTIRE FACTS AND THE R EASONS FOR DELAY OF 1275 DAYS IN FILING OF APPEAL STATED THAT, A SEARCH AND SEIZURE ACTION U/S 132(1) WAS CONDUCTED ON THE BUSINESS PREMISES OF THE ASSESSEE FIRM ON 14.01.2000 AND IN PURSUANCE OF THE SEARCH , BLOCK ASSESSMENT ORDER U/S 158BC WAS FRAMED VIDE ORDER DATED 29.11.2002. AFTER PASSING OF THE BLOCK ASSESSMENT ORDER, AO NOTICED THAT THERE WAS MISTAKE IN THE FIGURES OF COMPUTATION OF UNDISCLOSED INCOME, HENCE HE PASSED RECTIFICATION ORDER UNDER SECTION 154 DATED 06.12.2003 AND THEREBY THE ENHANCED UND ISCLOSED INCOME FROM RS. 4,55,90,584/ - TO RS. 6,39,98,662/ - . HOWEVER, HE SUBMITTED THAT THIS ASPECT OF THE MATTER HAS BEEN DEALT BY THE CIT(A) IN THE QUANTUM PROCEEDINGS AGAINST THE ORIGINAL BLOCK ASSESSMENT ORDER, THEREFORE, THIS APPEAL WILL BECOME INFRUC TUOUS . HOW EVER, THE ASSESSEE HAD FILED THE APPEAL OUT OF ABUNDANT PRECAUTION THAT, IN CASE THE ISSUE AS DEALT BY THE CIT(A) STANDS DECIDED BY THE TRIBUNAL , THEN REVENUE SHOULD NOT RAKE - UP THE ISSUE ON THE GROUND THAT ORDER U/S 154 HAS BEEN CONFIRMED WHEREB Y UNDISCLOSED INCOME WAS ENHANCED . HE ALSO ADMITTED THAT THE RECTIFICATION CARRIED OUT U/S 154 BY THE AO IS OTHERWISE CORRECT AS THERE WAS ACTUAL MISTAKE IN THE CALCULATION MADE BY THE AO , WHILE DETERMINING THE UNDISCLOSED INCOME. THE APPEAL HAS BEEN FILED FOR TECHNICAL REASONS. 4. ON THE OTHER HAND, LD. DR SUBMITTED THAT , ONCE THE ASSESSEE DID NOT HAD ANY SUBSTANTIAL GRIEVANCE FROM THE IMPUGNED ORDER AND THE MATTER HAS ALREADY BEEN TAKEN NOTE OF AND DECIDED BY THE CIT(A) IN THE QUANTUM PROCEEDINGS, THERE FORE, THE ISSUE ITSELF GOT DECIDED AND APPEAL OF THE ASSESSEE SHOULD BE DISMISSED AS NOT MAINTAINABLE. 5. AFTER CONSIDERING THE ENTIRE FACTS AND ISSUE INVOLVED, WE FIND THAT IN THE ORIGINAL ASSESSMENT PASSED UNDER SECTION 15 8 BC ON 29.11.2002, THE AO HAS C OMPUTED THE UNDISCLOSED INCOME AT RS. 4,55,90,584/ - . LATER ON, THE AO NOTED THAT UNDISCLOSED INCOME IN RESPECT OF NON - RECORDING OF CATERING SALES FOR THE WHOLE BLOCK IT(SS) 42/MUM/2007 3 PERIOD WAS MADE BY THE AO WHICH WAS WORKED OUT AT RS. 2,14,76,091/ - H OWEVER WAS WRONGLY TA KEN BY HIM AT RS. 30,61,013/ - . ACCORDINGLY, HE ISSUED A RECTIFICATION ORDER ON WHICH THE ASSESSEE DID NOT OBJECT ION ON MERITS AS THERE WAS A GENUINE MISTAKE AND ACCORDINGLY THE INCOME WAS ENHANCED BY AN AMOUNT OF RS. 2,14,76,091/ - . IT IS ALSO PERTINENT TO NOTE THAT, THIS ISSUE HAS BEEN DEALT BY THE CIT(A) IN THE QUANTUM PROCEEDINGS AGAINST THE BLOCK ASSESSMENT ORDER U/S 158BC ON WHICH THE CIT(A) HAS GIVEN ITS ADJUDICATION, THEREFORE, THE ISSUE RAISED IN THE IMPUGNED APPEAL FILED AGAINST PROCEEDINGS U/S 154 IS PURELY ACADEMIC AND INFRUCTUOUS EXERCISE. THE IMPUGNED ORDER U/S 154 , ULTIMATELY WILL NOT HAVE ANY EFFECT OVER AND ABOVE THE QUANTUM PROCEEDINGS AS DECIDED BY THE CIT(A) AND WHICH IS SUB JUDICE BEFORE THE TRIBUNAL . T H US, THE IMPUGNED APPEAL IS BEING DIS MISSED AS BEING INFRUCTUOUS AND ALSO CONDONATION OF DELAY AGAIN IS ACADEMIC EXERCISE ONLY. 6. THUS, RESULTANTLY THE APPEAL OF THE ASSESSEE IS TREATED AS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH JANUARY , 201 6. SD/ - SD/ - ( ) ( ) ( RAMIT KOCHAR ) ( AMIT SHUKLA ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 19 TH JANUARY , 2016 / COPY TO: - 1 ) / THE APPELLANT. 2 ) / THE RESPONDENT. 3) THE CIT (A) - 35 , MUMBAI . 4 ) THE COMMISSIONER OF INCOME TAX - 25 , MUMBAI . 5 ) , , / THE D.R. D BENCH, MUMBAI. 6 ) \ COPY TO GUARD FILE. IT(SS) 42/MUM/2007 4 / BY ORDER / / TRUE COPY / / / , DY. / ASSTT. REGISTRAR I.T.A.T., MUMBAI * . . *CHAVAN, SR.PS