Sri Tirupati Panigrahi, Bhubaneswar V. ACIT, Corporate Circle-1(2), Bhubaneswar

ITSSA 6/CTK/2017

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 3446 (ITAT-CUTTACK)
• Duration Of Justice: 7 month(s) 19 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 12-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2002-2003
• Appeal Filed On: 22-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KUNAL SINGH
• Assessee Lawyers: B D OJHA
• Section: 2

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI N.S.SAINI, AM & SHRI PAV AN KUMAR GADALE, JM ./ IT ( SS) A NO. 04 TO 07 / CTK /20 1 7 ( / ASSESSMENT YEAR :20 00 - 2001 TO 200 3 - 200 4 ) SRI TIRUPATI PANIGRAHI, PLOT NO.1/103, SAHEED NAGAR, BHUBANESWAR - 751007 VS. ACIT, CIRCLE - 1 (2), BHUBANESWAR ./ PAN NO. : A BDPP 5772 C ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI B.D.OJHA , AR /REVENUE BY : SHRI KUNAL SINGH , CITDR / DATE OF HEARING : 09 / 10 /201 7 / DATE OF PRONOUNCEMENT 12/10 /201 7 / O R D E R PER SHRI PAV AN KUMAR GADALE, JM : THESE ARE THE APPEALS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) - II , BHUBANESWAR ALL DATED 21.10.2016 FOR THE ASSESSMENT YEARS 2000 - 2001 TO 200 3 - 2004 . 2. SINCE THE ISSUE AND FACTS INVOLVED IN THESE APPEALS ARE INTERCONNECTED AND COMMON , THEY ARE BEING HEARD AND DISPOSED OFF BY THIS CONSOLIDATED ORDER . FOR THE SAKE OF CONVENIENCE, WE SHALL TAKE THE FACTS RAISED IN IT (SS) A NO.04/CTK/2017, WHEREIN THE ASSESSEE HAS THE FOLLOWING ADDITIONAL GROUNDS : - BECAUSE THAT THE LEARNED ASSESSING OFFICER ERRED IN LAW AS WELL AS IN FACT BY MAKI NG ADDITIONS TO THE TOTAL INCOME TO THE ASSESSEE WHICH ARE NOT BASED ON ANY SEIZED MATERIAL AS THE ASSESSMENT FOR THE IMPUGNED YEAR WAS COMPLETED U/S.143(1) OF THE ACT AND THE TIME LIMIT FOR ISSUING THE NOTICE U/S.143(2) OF THE ACT HAS EXPIRED ON THE DATE OF SEARCH. 3. FACTS IN BRIEF ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF BAR & RESTAURANT. THERE WAS A SEARCH A ND SEIZURE OPERATION S CONDUCTED IN THE RESIDENTIAL PREMISES OF THE ASSESSEE ON 30.09.2005 AND SRI TIRUPATI PANIGRAHI 2 ASSESSMENT U/S.153A(B) OF THE ACT WAS COMP LETED ON 31.12.2007 ON A TOTAL INCOME OF RS.5,41,760/ - . IN APPEAL, THE CIT(A) CONFIRMED THE ORDER OF AO AND THE ASSESSEE FILED AN APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL VIDE ORDER DATED 10.10.2013 SET ASIDE THE ASSESSMENT TO THE FILE OF AO WITH A DIRE CTION TO FRAME DE - NOVO ASSESSMENT AS PER LAW. SUBSEQUENTLY, THE AO MADE THE ADDITION OF NON - AGRICULTURAL INCOME AND TREATED UNDER THE HEAD INCOME FROM OTHER SOURCES AND ASSESSED THE TOTAL INCOME OF ASSESSEE AT RS.2,49,640/ - AND PASSED THE ORDER U/S.153A/ 254 OF THE ACT DATED 30.03.2015. 4. AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A), HOWEVER, THE CIT(A) CONFIRMED THE ACTION OF AO AND DISMISSED THE APPEAL OF ASSESSEE. 5. AGAINST THE ORDER OF CIT(A), THE ASSESSEE HAS COM E UP IN APPEAL BEFORE THE TRIBUNAL. 6 . BEFORE US THE LD. AR SUBMITTED , THIS ADDITIONAL GROUND PLAYS A VITAL ROLE AND HAVE A BEARING ON THE ASSESSMENT WHERE THE ASSESSMENT HAS BEEN MADE BY THE AO WITH ADDITIONS NOT BASED ON THE SEIZED MATERIAL AND ALSO THE TIME LIMIT FOR ISSUE OF NOTICE U/S.143(2) OF THE ACT WAS EXPIRED ON THE DATE OF SEARCH. THE LD. AR FURTHER SUBSTANTIATED HIS ARGUMENTS AND SUBMITTED COPY OF ACKNOWLEDGEMENT OF RETURN OF INCOME FILED FOR THE ASSESSMENT YEARS 2000 - 2001 TO 2003 - 2004 AND PRAYE D FOR ADMITTING THE ADDITIONAL GROUND AND ALLOW THE APPEAL. CONTRA, LD. DR OPPOSED TO THE GROUND AND THE MATERIAL FILED AND RELIED ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD., (1998) SRI TIRUPATI PANIGRAHI 3 229 ITR 383 (SC) ON THE FACTS EMERGED OUT OF THE ASSESSMENT PROCEEDINGS. 7 . WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WITHOUT GOING INTO THE MERITS OF THE CASE, AT THIS STAGE, WE CONSIDER IT APPROPRIATE FIRST TO DECIDE THE LEGAL GROUND OF ISSUE OF NOTICE U/S. 143(2) OF THE ACT RAISED BEFORE US AS ADDITIONAL GROUND BY THE ASSESSEE. PRIMA FACIE, THE LD. AR SUPPORTED HIS ARGUMENTS BY PROVIDING THE COPIES OF THE INCOME TAX RETURN FILED AND EXPLAINED THAT THE TIME LIMIT FOR ISSUE OF NOTICE U/S.143(2) OF THE ACT HAS EXPIRED ON THE DATE OF SEARCH WHEREAS LD. DR HAS OPPOSED TO THIS ADDITIONAL GROUND. ACCORDINGLY, WE CONSIDERING THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD (SUPRA) ADMIT THE ADDITIONAL GROUND RAISED BY THE ASSESSEE F OR THE FIRST TIME BEFORE THE TRIBUNAL AND REMIT THIS ADDITIONAL GROUND TO THE FILE OF CIT(A) TO ADJUDICATE AND PASS A SPEAKING ORDER ON MERITS. IT IS ALSO RELEVANT TO MENTION HERE THAT IF THE CIT(A) FOUND THE NOTICE U/S.143(2) OF THE ACT HITS THE QUESTION OF LIMITATION, THEN THE ADDITIONS MADE BY THE AO WILL HAVE NO LEGS TO STAND, HOWEVER, THE ADDITIONS CAN BE MADE ON THE BASIS OF SEIZED MATERIAL. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE ARGUMENTS RAISED BY THE LD. AR, WE A RE OF THE VIEW THAT THE ADJUDICATION OF GROUNDS OF APPEAL RAISED BY THE ASSESSEE AGAINST THE ADDITIONS BY THE AO AND CONFIRMED BY THE CIT(A) ARE NOT NECESSARY AT THIS STAGE AND THE ISSUE IS REMITTED TO THE FILE OF CIT(A). THUS, APPEAL FILED BY THE ASSESSEE IN SRI TIRUPATI PANIGRAHI 4 IT (SS) A NOS. 04 TO 07 /CTK/201 7 FOR THE ASSESSMENT YEARS 2000 - 2001 TO 2003 - 04 ARE ALLOWED FOR STATISTICAL PURPOSES. 8 . IN THE RESULT, ALL APPEALS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 12/10 /2 01 7 . SD/ - (N. S. SAINI) S D/ - ( PAVAN KUMAR GADALE ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER CUTTACK ; DATED 12/10 /201 7 . . / PKM , SENIOR PRIVATE SECRETARY / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - 2. / THE RESPONDENT - 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//