M/S. HARESH C. GANDHI, MUMBAI V. THE ITO 25(2)(1), MUMBAI

ITSSA 43/MUM/2008

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8370 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 month(s) 29 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 20-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 11-04-2011
• Assessment Year: misc
• Appeal Filed On: 21-04-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GOLI SRINIVAS RAO
• Assessee Lawyers: VIPUL J SHAH
• Keywords: Opportunity of being heard; Peak credit; Block assessment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES H, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI V.DURGA RAO, JM IT(SS)A NO.43/MUM/2008 : BLOCK PERIOD 01.04.1987 TO 19.03.1998 ITA NO.1297/MUM/2010 : ASST. YEAR 1992-93 ITA NO.1298/MUM/2010 : ASST. YEAR 1995-96 ITA NO.1299/MUM/2010 : ASST. YEAR 1996-97 ITA NO.1300/MUM/2010 : ASST. YEAR 1997-98 SHRI HARESH C.GANDHI 308 PARSHWA CHAMBERS 19/21, ISSAJI STREET, VADGADI MUMBAI 400 003. PAN : AGFPG1196G. VS. THE INCOME TAX OFFICER WARD 25(2)(1) MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VIPUL J.SHAH RESPONDENT BY : SHRI GOLI SRINIVAS RAO O R D E R PER BENCH : THIS IS A BATCH OF FIVE APPEALS BY THE ASSESSEE. IT (SS)A NO.43/MUM/2008 IS APPEAL AGAINST THE ORDER PASSED BY THE CIT(A) IN RE LATION TO BLOCK ASSESSMENT FOR THE PERIOD 01.04.1987 TO 19.03.1998. THE OTHER APPE ALS ARE BY THE ASSESSEE FOR THE ASSESSMENT YEARS 1992-93, 1995-96, 1996-97 AND 1997 -98. SINCE COMMON ISSUES ARE RAISED IN THESE APPEALS, WE ARE, THEREFORE, PRO CEEDING TO DISPOSE THEM OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. SEARCH WAS CONDUCTED IN THIS CASE ON 17.3.1998. ORDER U/S.158BC WAS PASSED ON 9.3.2000 DETERMINING TOTAL UNDISCLOSED IN COME AT RS.7,54,86,160. THIS ORDER WAS CHALLENGED BY THE ASSESSEE BEFORE THE LEA RNED CIT(A) WHO VIDE HIS ORDER DATED 21.08.2000 SET ASIDE THE ASSESSMENT ORDER PAS SED U/S.158BC BY HOLDING THAT SINCE CASH SEIZED U/S.132 FROM THE BANK ACCOUNT WAS DEPOSITED BY THE DEPARTMENT IN THE SAME BANK ACCOUNT AS PER THE DIRECTION OF TH E HONBLE HIGH COURT AND FURTHER THERE WAS NO SEIZURE U/S.132, NO UNDISCLOSED INCOME COULD HAVE BEEN CALCULATED. IT(SS)A NO.43/MUM/2007 & ORS. SHRI HARESH C.GANDHI. 2 THE REVENUE PREFERRED APPEAL BEFORE THE TRIBUNAL AG AINST THE SAID ORDER WHICH CAME TO BE DISPOSED OFF IN IT(SS)A NO.111/MUM/2000 VIDE ORDER DATED 25.03.2006 SETTING ASIDE THE ORDER OF THE CIT(A) AN D RESTORING THE MATTER TO THE FILE OF THE LEARNED CIT(A) FOR DISPOSAL OF THE APPEAL ON MERITS. BY THE INSTANT ORDER DATED 02.08.2007 THE LEARNED CIT(A) GAVE 8 OPPORTUN ITIES TO THE ASSESSEE WHICH HAVE BEEN RECORDED IN PARA 5 OF THE IMPUGNED ORDER. HOWEVER DUE TO NON- COOPERATION ON THE PART OF THE ASSESSEE, THE LEARN ED CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE AGAINST WHICH NOW THE PRESENT APPEAL H AS COME. 3. BEFORE US THE LEARNED COUNSEL FOR THE ASSESSEE C ONTENDED THAT THE ADDITIONS MADE UNDER THE BLOCK ASSESSMENT HAVE BEEN REPEATED BY THE ASSESSING OFFICER IN REGULAR ASSESSMENT FOR THE YEARS AGAINST WHICH THE ASSESSEE HAS FILED SEPARATE APPEALS CLUBBED WITH THE INSTANT APPEAL AGAINST THE BLOCK ASSESSMENT, WHICH HAVE BEEN POSTED FOR HEARING SIMULTANEOUSLY. IT WAS STA TED THAT THE ASSESSING OFFICER HAS MADE DUPLICATE ADDITIONS, FIRSTLY, BY WAY OF INCLUDING THE AMOUNT IN BLOCK ASSESSMENT AND, SECONDLY, BY TAXING THE SAME AMOU NT IN THE REGULAR ASSESSMENT. IT WAS CONTENDED THAT AT THE MOST PEAK BALANCE SHOULD HAVE BEEN TAXED WHICH HAS NOT BEEN DONE. THE LEARNED A.R. CONTENDED THAT THE FOUR SEPARATE APPEALS FILED BY THE ASSESSEE FOR ASSESSMENT YEARS 1992-93, 1995-96, 199 6-97 AND 1997-98 ARE AGAINST THE ORDERS PASSED BY THE LEARNED CIT(A) WITHOUT GRA NTING ADEQUATE OPPORTUNITY AND FURTHER THE ORDERS PASSED BY THE A.O. WERE ALSO U/S .144. IT WAS, THEREFORE, URGED CONTENDED THAT AS ALL THE PROCEEDINGS HAVE GONE WIT HOUT PROVIDING ADEQUATE OPPORTUNITY TO THE ASSESSEE AND THE SUBMISSIONS MAD E AT VARIOUS STAGES HAVE NOT BEEN CONSIDERED WHILE PASSING THE ORDERS, ONE MORE OPPORTUNITY BE GIVEN TO PUT ASSESSEE FOR PUTTING FORWARD ITS CASE BEFORE THE AS SESSING OFFICER IN RIGHT PERSPECTIVE. NO SERIOUS OBJECTION WAS TAKEN BY THE LEARNED DEPARTMENTAL REPRESENTATIVE. IT(SS)A NO.43/MUM/2007 & ORS. SHRI HARESH C.GANDHI. 3 4. IN THE GIVEN CIRCUMSTANCES WE ARE OF TH E CONSIDERED OPINION THAT THE ENDS OF JUSTICE WOULD MEET ADEQUATELY IF THE IMPUGNED OR DERS ARE SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF A.O. FOR FRESH DI SPOSAL OF THE CASES AFTER ALLOWING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. IT IS MADE CLEAR THAT ONE ADDITION CAN BE MADE EITHER IN THE REGULAR ASSESSME NT OR IN THE BLOCK ASSESSMENT. IT CANNOT BE MADE TWICE IN BOTH THE ASSESSMENTS. THE ASSESSEE IS ALSO DIRECTED TO EXTEND FULL CO-OPERATION TO THE ASSESSING OFFICER I N THE FINALIZATION OF THE CASES. 5. IN THE RESULT, ALL THE APPEALS ARE ALLOWED FOR S TATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 20 TH DAY OF APRIL, 2011 . SD/- SD/- (V.DURGA RAO) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 20 TH APRIL, 2011. DEVDAS* COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) - XXVMUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.