Shri Sanjay Jayendra Dave, Ahmedabad V. The Dy.CIT.,Cent.Circle-2(2), Ahmedabad

ITSSA 556/AHD/2010

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0030 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 29 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 14-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 05-02-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 15-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIMALENDU VERMA
• Assessee Lawyers: P M MEHTA
• Keywords: Income from undisclosed sources
• Section: 153A; 234B; 69; 132; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD (BEFORE SHRI D.K. TYAGI, J.M. & SHRI ANIL CHATURVE DI, A.M.) I.T.(SS) A. NOS. 554 TO 557 /AHD/2010 (ASSESSMENT YEAR:20 03-04 TO 2006-07) SHRI SANJAY JAYENDRA DAVE 12/141, POOJA APARTMENT, NR. HIMMTALAL PARK, AHMEDABAD V/S DCIT CENTRAL CIRCLE-2(2), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AAPPD 7758K APPELLANT BY : SHRI P.M. MEHTA A.R. RESPONDENT BY : SHRI VIMALENDU VERMA, CIT D.R . ( )/ ORDER DATE OF HEARING : 05-02-2014 DATE OF PRONOUNCEMENT : 14 -02-2014 PER BENCH. 1. THESE FOUR APPEALS FILED BY THE ASSESSEE ARE AGAINS T THE CONSOLIDATED ORDER OF CIT(A)-III, AHMEDABAD DATED 15.10.2009 FOR A.YS. 2003-04 TO 2006-07. 2. AT THE OUTSET BEFORE US, THE LD. A.R. SUBMITTED THA T THOUGH THE FOUR APPEALS ARE FOR DIFFERENT ASSESSMENT YEARS BUT THE FACTS ARE IDENTICAL AND RELATES TO THE SAME ISSUE EXCEPT FOR THE AMOUNTS AN D THEREFORE ALL FOUR APPEALS CAN BE CONSIDERED TOGETHER. WE THEREFORE PR OCEED TO DISPOSE OFF ALL THE FOUR APPEALS OF THE ASSESSEE BY A CONSOLIDA TED ORDER FOR THE SAKE IT(SS)A NOS. 554 TO 557/AHD/2010 . A.YS. 2003- 04 TO 2006- 07 2 OF CONVENIENCE AND THUS PROCEED WITH THE FACTS OF C ASE IN IT(SS)A NO. 554/AHD/2010 (FOR A.Y. 2003-04). 3. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 4. A SEARCH ACTION UNDER SECTION 132 OF THE ACT WAS CA RRIED OUT IN THE GROUP CASES OF M/S. PRAVIN RATILAL SHAREDALAL ON 22.09.20 05 WHERE CERTAIN DOCUMENTS AND COMPUTER DATA PERTAINING TO THE ASSES SEE WAS FOUND WHICH REVEALED THAT ASSESSEE HAD ENTERED INTO LARGE SCALE TRANSACTION OF GIVING HAWALA PROFITS TO DESIROUS PERSONS THROUGH M /S. PRAVIN RATILAL SHARE AND STOCK BROKERS LTD. ACCORDINGLY NOTICE UN DER SECTION 153C OF THE ACT WAS ISSUED AND SERVED ON ASSESSEE ON 08.11. 2007 ASKING THE ASSESSEE TO FILE THE RETURN OF INCOME. ASSESSEE DID NOT FILE RETURN OF INCOME NOR APPEARED BEFORE A.O. ON THE DATE FIXED F OR HEARING. A.O. THEREFORE PROCEEDED TO COMPLETE THE ASSESSMENT EX P ARTE U/S. 144 OF THE ACT ON THE BASIS OF MATERIAL ON RECORD. A.O. NOTED THAT ASSESSEE HAD A SAVING BANK ACCOUNT WITH UCO BANK IN WHICH ASSESSEE HAD DEPOSITED CASH OF RS. 70,500/- ALONG WITH SUNDRY SMALL DEPOSI TS. A.O. NOTED THAT ASSESSEE WAS A SMALL TIME EMPLOYEE WITH A FIRM OF C HARTERED ACCOUNTANTS AND HAVING A SALARY OF RS. 3,000/- P.M. AND THEREFORE HAD NO RESOURCES TO DEPOSIT THE CASH IN HIS BANK ACCOUNT. SINCE THE SOURCE OF CASH DEPOSITS WERE NOT EXPLAINED. A.O. CONSIDERED T HE CASH DEPOSITS OF RS. 70,500/- IN HIS BANK ACCOUNT AS UNEXPLAINED IN VESTMENT UNDER SECTION 69 ON PROTECTIVE BASIS AND COMPUTED THE TOT AL INCOME AT RS. 70,500/-. A.O. ALSO NOTED THAT INCOME TO BE CONSID ERED ON SUBSTANTIVE BASIS IN THE CASE OF PRAVINKUMAR RATILAL SHARE AND STOCK BROKERS LTD. AGGRIEVED BY THE ORDER OF A.O, ASSESSEE CARRIED THE MATTER BEFORE IT(SS)A NOS. 554 TO 557/AHD/2010 . A.YS. 2003- 04 TO 2006- 07 3 CIT(A). CIT(A) VIDE ORDER DATED 15.10.2009 DISMISSE D THE APPEAL OF THE ASSESSEE BY HOLDING AS UNDER:- 6. APART FROM THIS IT CAN BE NOTICED THAT THE ASSESSIN G OFFICER OF PRAVINKUMAR RATILAL SHARE BROKER WAS OF THE VIEW THAT HE HAD GIVEN HAWALA ENTRIES TO DIF FERENT PERSONS AND IN THEIR RECORD NAME OF THE APPELLANT REGARDING TRANSACTION WERE NOTICED. THE A SSESSING OFFICER WAS OF THE VIEW THAT THE NOTING AN D THE ACCOUNTS WERE RELATED TO PRAVINKUMAR RATILAL SH ARE BROKER PARTICULARLY IN VIEW OF THE FACT THAT TH E APPELLANT IS NOT HAVING MAJOR SOURCE OF INCOME. HEN CE, THE ASSESSMENT IS MADE ON PROTECTIVE BASIS IN THIS CASE. THIS IT SELF SUGGEST THAT THERE WAS NO S ATISFACTION RECORDED BY THE A.O OF PRAVINKUMAR RATI LAL SHARE BROKER REGARDING ANY UNACCOUNTED INCOME OF TH E APPELLANT WHICH COULD ENABLE THE A.O TO ISSUE OF NOTICE U/S 153C OF THE ACT. HENCE IN THE ABSENCE OF ANY SUCH SPECIFIC SATISFACTION THE INITIATION O F PROCEEDINGS IN THIS CASE U/S 153C IS BAD IN LAW. 5. AGGRIEVED BY THE ORDER OF CIT(A), THE ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS:- 1. THE ASSESSMENT ORDER PASSED U/S 153A R.W.S 153C AND U/S 144 OF IT ACT AND CONFIRMED BY FIRST APPELLATE AUTHORITY IS BAD IN LAW MORE SO WHEN NO S ATISFACTION WAS RECORDED BY THE ASSESSING OFFICER BEFORE INITIATION OF 153C PROCEEDINGS. THE SAID ORDER DESERVES TO BE UNCALLED FOR. 2. THE ASSESSING OFFICER AS WELL AS FIRST APPELLATE AU THORITY HAS ERRED IN LAW IN MAKING AND CONFIRMING RESPECTIVELY ADDITIONS OF RS.70,500/-U/S 69 OF IT ACT. THE SAME DESERVES TO BE DELETED. 3. THE ASSESSING OFFICER AS WELL AS THE FIRST APPELLAT E AUTHORITY HAS ERRED IN LAW AND ON FACT IN LEVYING AND CONFIRMING RESPECTIVELY INTEREST U/S. 234B AND 234C OF I.T. ACT. THE SAME DESERVES TO BE UNCALLED FOR. 4. THE APPELLANT CRAVES TO RESERVE HIS RIGHT TO ADD, A LTER, AMEND OR DELETE ANY GROUND OF APPEAL DURING THE COURSE OF HEARING. 6. AT THE OUTSET THE LD. A.R. SUBMITTED THAT BEFORE CI T(A), ASSESSEE HAD RAISED THE GROUND WITH RESPECT TO JURISDICTION OF T HE A.O. IN PASSING ORDER UNDER SECTION 153C R.W.S. 154 OF THE ACT BUT THE SA ME WAS NOT ADJUDICATED BY CIT(A). HE POINTED TO THE GROUNDS O F APPEAL RAISED BEFORE CIT(A). HE THEREFORE SUBMITTED THAT THE MAT TER BE REMITTED BACK TO THE FILE OF CIT(A) TO DECIDE THE AFORESAID GROUN D WITH RESPECT TO JURISDICTION. THE LD. D.R. ON THE OTHER HAND SUPPO RTED THE ORDER OF LOWER AUTHORITIES. IT(SS)A NOS. 554 TO 557/AHD/2010 . A.YS. 2003- 04 TO 2006- 07 4 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. ON THE BASIS OF MATERIAL ON RECORD WE FIND THAT BEF ORE CIT(A) ASSESSEE HAD RAISED GROUND NO. 1 WITH RESPECT TO JURISDICTIO N OF A.O WHICH READS AS UNDER:- THE ORDER UNDER SECTION 153C R.W.S. 154 OF THE I.T. ACT DATED 20.12.2007 PASSED BY DCIT CENTRAL CIRCLE-2(2) AHMEDABAD IS BAD IN LAW AND IS WITHOUT JURISDICTION. THE ORDER SO PASSED THEREFORE DESERVES TO BE QUASHED. 8. ON PERUSING THE ORDER OF CIT(A) WE FIND THAT THOUGH THE AFORESAID GROUND WAS RAISED BEFORE CIT(A) BUT CIT(A) HAS NOT ADJUDICATED IT AS THERE IS NO FINDING OF CIT(A) ON THE SAME. WE ARE T HEREFORE OF THE VIEW THAT THE AFORESAID GROUND NEEDS TO BE ADJUDICATED B Y CIT(A). WE THEREFORE REMIT BACK THE GROUND TO THE FILE OF CIT( A) TO DECIDE THE GROUND AFRESH AFTER RECORDING A CLEAR FINDING AND BY PASS ING A SPEAKING ORDER. SINCE THE GROUND OF JURISDICTION HAS BEEN REMITTED TO THE FILE OF CIT(A), THE OTHER ARE NOT DISPOSED. 9. IN THE RESULT, THIS APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ITA NO. 555, 556 & 557/AHD/2010 (FOR A.Y. 2004-05, 05-06 & 06-07). 10. SINCE THE FACTS OF ALL THE CASES ARE IDENTICAL TO T HAT OF IN ITA NO. 554/AHD/2010, WE FOR SIMILAR REASONS GIVEN HEREINAB OVE WHILE DECIDING THE APPEAL IN ITA NO. 554/AHD/2010 HEREINABOVE ALSO ALLOW THE PRESENT APPEAL OF THE ASSESSEE FOR STATISTICAL PURPOSES. TH US THE GROUNDS OF ASSESSEE IN ALL THE APPEALS ARE ALLOWED FOR STATIST ICAL PURPOSES. IT(SS)A NOS. 554 TO 557/AHD/2010 . A.YS. 2003- 04 TO 2006- 07 5 11. IN THE RESULT, ALL THE APPEALS OF ASSESSEE ARE ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 14 -02 - 2014. SD/- SD/- (D.K. TYAGI) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AH MEDABAD