ANIL JASUMAL BIJLANI, ULHASNAGAR V. ASST CI R 2 KALYAN, KALYAN

ITSSA 60/MUM/2011

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 3364 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 7 month(s) 4 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 30-06-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 15-02-2016
• Assessment Year: misc
• Appeal Filed On: 25-11-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R P MEENA
• Assessee Lawyers: ASHOK J PATIL
• Keywords: Opportunity of being heard; Principle of natural justice; Block assessment
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A , MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD , JUDICIAL MEMBER IT (SS) NO. 59 /MUM/ 2011 : BLOCK PERIOD : 01/04/1987 TO 03/09/1997 SHRI MADHUKANT JASUMAL BIJLANI FLAT NO. 1, RED ROSE SOCIETY, OPP. CHOPRA COURT, ULHASNAGAR 421 003 (APPELLANT) PAN : AAWPB0486B VS. ACIT, CIRCLE - 2, KALYAN (RESPONDENT) IT (SS) NO. 60 /MUM/ 2011 : BLOCK PERIOD : 01/04/1987 TO 03/09/1997 SHRI ANIL JASUMAL BIJLANI FLAT NO. 1, RED ROSE SOCIETY, OPP. CHOPRA COURT, ULHASNAGAR 421 003 (APPELLANT) PAN : AAWPB486 2 B VS. ACIT, CIRCLE - 2, KALYAN (RESPONDENT) IT (SS) NO. 61 /MUM/ 2011 : BLOCK PERIOD : 01/04/1987 TO 03/09/1997 SHRI DEEPAK JASUMAL BIJLANI FLAT NO. 2 , RED ROSE SOCIETY, OPP. CHOPRA COURT, ULHASNAGAR 421 003 (APPELLANT) PAN : AAWPB486 3A VS. ACIT, CIRCLE - 2, KALYAN (RESPONDENT) APPELLANT S BY : SHRI ASHOK J. PATIL RESPONDENT BY : SHRI R.P. MEENA DATE OF HEARING : 27 / 06 /201 7 DATE OF PRONOUNCEMENT : 30 /0 6 /201 7 2 IT(SS) NOS. 59 TO 61/MUM/2011 MADHUKANT JASUMAL BIJLANI & ORS. O R D E R PER G.S. PANNU , AM : THE CAPTIONED APPEALS RELATE TO THREE ASSESSEES BELONGING TO THE SAME FAMILY INVOLVING COMMON ISSUES, THEREFORE, THEY HAVE BEEN CLUBBED AND HEARD TOGETHER AND A CONSOLIDATED ORDER IS BEING PASSED FOR THE SAKE OF CONVENIENCE AND BRE VITY. 2. IT(SS) NO. 60/MUM/2011 IN THE CASE OF SHRI ANIL JASUMAL BIJLANI IS BEING TAKEN AS THE LEAD CASE. THIS APPEAL IS DIRECTED AGAINST THE ORDER OF CIT(A) - 2, THANE, WHICH IN TURN HAS ARISEN FROM THE ORDER OF THE ASSESSING OFFICER PASSED U/S 158BD R.W. S 143(3) R.W.S 254 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) GIVING EFFECT TO THE ORDER OF THE TRIBUNAL DATED 9.2.2009. 3. BEFORE WE PROCEED TO ADDRESS THE SPECIFIC GRIEVANCE OF THE APPELLANT, A BRIEF BACKGROUND IS RELEVANT, WHICH IS AS FOLLOWS. INITIALLY, AN ASSESSMENT U/S 158BD R.W.S. 143(3) OF THE ACT WAS FINALISED IN THE HANDS OF THE ASSESSEE ON 28.2.2005 ASSESSING AN UNDISCLOSED INCOME OF RS.7,25,000/ - , WHICH WAS DELETED IN APPEAL BY THE CIT(A). ON AN APPEAL BY THE REVENUE, THE TRIBUNAL VIDE ORDER IN IT(SS) NO. 172/MUM/2006 DATED 9.2.2009 SET - ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH CERTAIN DIRECTIONS. AS A CONSEQUENCE, BY WAY OF THE IMPUGNED ORDER THE ASSESSING OFFICER HAS ASSESSED THE UNDISCLOSED INCOME AT RS.7,25,000/ - , WHICH HAS ALSO BEEN AFFIRMED BY THE CIT(A), AND ACCORDINGLY, ASSESSEE IS IN FURTHER APPEAL BEFORE US. NOTABLY, THE 3 IT(SS) NOS. 59 TO 61/MUM/2011 MADHUKANT JASUMAL BIJLANI & ORS. UNDISCLOSED INCOME OF RS.7,25,000/ - PERTAINS TO ASSESSMENT YEARS 1994 - 95 TO 1997 - 98 COMPRISED IN THE BLOCK PERIOD 1.4.1987 TO 3.9.1997 AND I S IN ON ACCOUNT OF UNACCOUNTED STOCKS AND ADDITIONALLY, ON ACCOUNT OF SHARE IN M/S. SAI D EEP GARMENTS FOR ASSESSMENT YEAR 1996 - 97 . THE TRIBUNAL VIDE ITS ORDER DATED 9.2.2009 (SUPRA) UPHELD THE ASSESSMENT OF UNDISCLOSED INCOME, BUT NOTICED THAT ASSESSEE HAD ALREADY PAID TAXES ON SUCH INCOME , WHICH WAS DECLARED UNDER THE VDIS. THE TRIBUNAL NOTED THAT THOUGH FILING OF DECLARATION AND PAYMENT OF TAXES UNDER VDIS WAS MADE UNDER QUESTIONABLE CIRCUMSTANCES , BUT WENT ON TO OBSERVE THAT ASSESSEE SH OULD NOT BE AS KED TO PAY TAX TWICE ON THE SAME INCOME , WHICH IS AGAINST THE BASIC PRINCIPLES OF TAXATION . T HE OPERATIVE PART OF THE ORDER OF THE TRIBUNAL ON THIS ASPECT READS AS UNDER: - 18. THUS, WE FIND ON HAND THE BLOCK ASSESSMENT PROCEEDINGS ARE INITIATED VALIDLY AND ON THE OTHER HAND, THE FILING DECLARATION AND PAYMENT OF TAX UNDER VDIS WAS MADE UNDER QUESTIONABLE CIRCUMSTANCES WITH IN THE MEANING OF THE FORE SAID APEX COURT JUDGMENT. FURTHER, WE FIND THAT THIS TRIBUNAL HAVE NO JURISDICTION TO DECIDE ON THE VALI DITY OF THE CERTIFICATE ISSUED BY THE CIT UNDER VDIS PROVISIONS AS PROVISIONS OF SECTION 253 DO NOT SPECIFY ORDER/CERTIFICATE. AT THE SAME TIME, THE ASSESSEE ALREADY PAID TAX UNDER VDIS ONCE ON THE SAID INCOME AND AO HAS DEMANDED PAYMENT OF TAX U/S 156 IN CONNECTION WITH THE BLOCK ASSESSMENT ASSESSMENT MADE U/S 158BD. IN OUR OPINION, THE ASSESSEE SHOULD NOT BE ASKED TO PAY TAX TWICE ON THE SAME INCOME, WHICH IS AGAINST THE BASIC PRINCIPLES OF TAXATION. THE AO HAS COMPLETELY IGNORED THIS ISSUE. AS SUCH, WE DO NOT HAVE THE BASIC INFORMATION ABOUT THE FATE OF THE SAID CERTIFICATE ISSUED BY THE CIT UNDER VDIS AS ON DATE. UNDER THESE CIRCUMSTANCES, WE ARE OF THE CONSIDERED OPINION THAT IMPUGNED ORDER OF THE CIT(A) MUST BE SET ASIDE AND ALL THESE ISSUES ARE R ESTORED TO THE FILES OF THE AO FOR FRESH EXAMINATION AND DECIDE THE ISSUE AFRESH IN THE 4 IT(SS) NOS. 59 TO 61/MUM/2011 MADHUKANT JASUMAL BIJLANI & ORS. LIGHT OF THE DISCUSSION GIVEN ABOVE. FURTHER, THE AO SHALL PROVIDE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS PER THE PRINCIPLES OF NATURAL JUSTICE. ACC ORDINGLY, ALL THE GROUNDS OF THE REVENUE ARE SET ASIDE. 4. IN THIS BACKGROUND, THE ASSESSING OFFICER MADE THE IMPUGNED ASSESSMENT. IN THE COURSE OF THE IMPUGNED PROCEEDINGS, THE ASSESSEE RAISED CERTAIN PLEAS WHICH, INTER - ALIA , INCLUDED THAT THE NOTICE U/S 158BD OF THE ACT WAS ISSUED AFTER AN INORDINATE DELAY OF 66 MONTHS AND 25 DAYS, WHICH WAS BAD - IN - LAW. THE ASSESSING OFFICER DID NOT ENTERTAIN THE PLEA, INTER - ALIA, ON THE GROUND THAT THE TRIBUNAL HAD ALREADY UPHELD THE PROCE EDINGS INITIATED U/S 158BD OF THE ACT. WITH REGARD TO THE OBSERVATIONS OF THE TRIBUNAL THAT THE ASSESSEE SHOULD NOT BE ASKED TO PAY TAX TWICE ON THE SAME INCOME, THE ASSESSING OFFICER DID NOT GIVE ANY SUCH BENEFIT. THE CIT(A) HAS ALSO AFFIRMED THE ACTION OF THE ASSESSING OFFICER, AGAINST WHICH THE ASSESSEE IS IN APPEAL BEFORE US. 5. BEFORE US, THE ASSESSEE REITERATED THAT THE POINT OF LAW WITH REGARD TO THE INVALIDITY OF NOTICE ISSUED U/S 158BD OF THE ACT IS PERMISSIBLE TO BE RAISED AT ANY TIME . THE LEA RNED REPRESENTATIVE POINTED OUT THAT AT THE TIME OF HEARING BEFORE THE TRIBUNAL ON THE EARLIER OCCASION, ASSESSEE HAD SOUGHT TO RAISE THIS ISSUE IN TERMS OF RULE 27 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 AS A RESPONDENT SINCE WHAT WAS BEFORE THE TRIBUNAL WAS THE APPEAL OF THE REVENUE. BY REFERRING TO PARA 2 OF THE ORDER OF THE TRIBUNAL DATED 9.2.2009 (SUPRA), IT WAS EXPLAINED THAT THE SAID PLEA WAS NOT ADMITTED BY THE TRIBUNAL ON THE GROUND THAT RULE 27 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 ONLY PERMITS RAISING OF AN ISSUE WHICH HAS BEEN DECIDED AGAINST 5 IT(SS) NOS. 59 TO 61/MUM/2011 MADHUKANT JASUMAL BIJLANI & ORS. THE RESPONDENT, WHEREAS IN THIS CASE THE PLEA WAS NOT RAISED BY THE ASSESSEE AT ALL AND THUS THERE WAS NO OCCASION FOR THE CIT(A) TO DECIDE T HE ISSUE . IT WAS, THEREFORE, SOUGHT TO BE POINTED OUT THAT THE ASSESSING OFFICER ERRED IN PRESUMING THAT SUCH A PLEA HAS BEEN DECIDED BY THE TRIBUNAL AGAINST THE ASSESSEE, RATHER IT IS A CASE WHERE THE TRIBUNAL HAD NOT DECIDED THE ISSUE ONE WAY OR THE OTH ER. SECONDLY, IT IS EMPHASISED THAT THE ASSESSING OFFICER HAS NOT ALLOWED THE BENEFIT OF TAX PAID BY THE ASSESSEE UNDER THE VDIS AND, THEREFORE, THE SAME WAS NOT IN CONFORMITY WITH THE DIRECTIONS OF THE TRIBUNAL. 6. ON THE OTHER HAND, THE LD. CIT - DR POIN TED OUT THAT THE ADDITION HAS BEEN IN - PRINCIPALLY UPHELD BY THE TRIBUNAL VIDE ORDER DATED 9.2.2009 (SUPRA) WHICH HAS SINCE BECOME FINAL AND, THEREFORE, THE NEW PLEA COULD NOT HAVE BEEN ENTERTAINED BY THE ASSESSING OFFICER. FURTHER, IT IS POINTED OUT THAT THE ONUS IS ON THE ASSESSEE TO PUT FORTH THE CLAIM OF TAX BEING PAID TWICE AND, THEREFORE, THE ASSESSING OFFICER WAS JUSTIFIED IN DENYING ANY SUCH RELIEF. 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS. IN OUR CONSIDERED OPINION, THE ASSESSING OFF ICER BY WAY OF THE IMPUGNED ORDER HAS MISSED THE SPIRIT IN WHICH THE MATTER WAS RESTORED BY THE TRIBUNAL VIDE ITS ORDER DATED 9.2.2009 (SUPRA). IN FACT, AFTER ITS ORDER DATED 9.2.2009 (SUPRA), THE TRIBUNAL ALSO PASSED A SUBSEQUENT ORDER ON 30.7.2010 ON A MISCELLANEOUS APPLICATION MOVED BY THE ASSESSEES , BEING MA NO. 25/MUM/2010 , WHEREBY THE DIRECTION GIVEN IN PARA 18 OF THE ORDER, WHICH WE HAVE REPRODUCED ABOVE, WAS PARTLY MODIFIED. IN FACT, INSTEAD OF UNDER THESE CIRCUMSTANCES, WE ARE OF THE CONSIDERED 6 IT(SS) NOS. 59 TO 61/MUM/2011 MADHUKANT JASUMAL BIJLANI & ORS. OPINION THAT ORDER OF THE CIT(A) MUST BE SET ASIDE AND ALL THESE ISSUES ARE RESTORED TO THE FILES OF THE AO FOR FRESH EXAMINATION AND DECIDE THE ISSUE AFRESH IN THE LIGHT OF THE DISCUSSION GIVEN ABOVE. , THE DIRECTION W AS MODIFIED TO READ AS UNDER : - UND ER THESE CIRCUMSTANCES, WE ARE OF THE CONSIDERED OPINION THAT THE IMPUGNED ORDER OF THE CIT(A) MUST BE SET ASIDE AND ALL THESE ISSUES ARE RESTORED TO THE FILES OF A.O FOR FRESH EXAMINATION AND DECIDE THE ISSUE AFRESH. 8. IN FACT, IN PARA 4 OF THE ORDER D ATED 30.7.2010 (SUPRA), THE TRIBUNAL HAS GIVEN THE REASON FOR ISSUING THE MODIFICATION, WHICH IS QUITE EXPLICIT . AS PER THE TRIBUNAL, THE EARLIER DIRECTION MAY CREATE AN IMPRESSION THAT THE ITAT HAS GIVEN FINDINGS ON CERTAIN ISSUES . TO CORRECT THIS PER SPECTIVE, THE TRIBUNAL MODIFIED THE DIRECTION. IN FACT, THE MODIFIED DIRECTION PERMITTED THE ASSESSING OFFICER TO EXAMINE ALL ISSUES AND DECIDE THE ISSUE AFRESH . T HEREFORE, IN THIS VIEW OF THE MATTER, THE ASSESSING OFFICER OUGHT TO HAVE CONSIDERED FOR AD MISSION AND CONSEQUENT ADJUDICATION ANY PLEA OF THE ASSESSEE REGARDING THE VALIDITY OF THE PROCEEDINGS U/S 158BD OF THE ACT ON ITS MERIT. THEREFORE, IN THIS VIEW OF THE MATTER, WE ARE OF THE VIEW THAT THE IMPUGNED ORDER PASSED BY THE ASSESSING OFFICER TO GIVE EFFECT TO THE ORDER OF THE TRIBUNAL IS NOT APPROPRIATE AND REQUIRES TO BE SET - ASIDE. THE ASSESSING OFFICER SHALL GIVE EFFECT TO THE O RDER OF THE TRIBUNAL STRICTLY IN ACCORDANCE WITH THE DIRECTION S OF THE TRIBUNAL CONTAINED IN ITS ORDER DATED 9.2.2009 (SUPRA) READ WITH THE ORDER DATED 30.7.2010 (SUPRA). THEREFORE, WITHOUT GOING INTO THE MERITS OF THE VARIOUS ISSUES RAISED BY THE ASSESSE E BEFORE US, WE DEEM IT FIT AND PROPER TO SET - ASIDE THE ORDER 7 IT(SS) NOS. 59 TO 61/MUM/2011 MADHUKANT JASUMAL BIJLANI & ORS. OF THE CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER, WHO SHALL ALLOW THE ASSESSEE A REASONABLE OPPORTUNIT Y OF BEING HEARD AND THEREAFTER PASS AN ORDER IN ACCORDANCE WI TH OUR AFORESAID DIRECT ION AND AS PER THE LAW. 9. IN THE RESULT, IN THIS APPEAL, ASSESSEE PARTLY SUCCEEDS. 10. IT WAS A COMMON POINT BETWEEN THE PARTIES THAT THE FACTS AND CIRCUMSTANCES IN THE OTHER TWO APPEALS IN THE CASE OF SHRI MADHUKANT JASUMAL BI JLANI AND SHRI DEEPAK JASUMAL BIJLANI BEING IT(SS) NOS. 59/MUM/2011 & 61/MUM/2011 RESPECTIVELY ARE PARI MATERIA TO THOSE CONSIDERED BY US IN IT (SS) NO. 60 /MUM/201 1 , THEREFORE, OUR DECISION THEREIN SHALL APPLY MUTATIS MUTANDIS IN THE SAID APPEAL S ALSO . 11. RESULTANTLY, THE CAPTIONED THREE APPEALS OF THE ASSESSEES ARE PARTLY ALLOWED, AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 3 0 T H JUNE, 2017. SD/ - SD/ - ( RAVISH SOOD ) JUDICIAL MEMBER ( G.S. PANNU ) ACCOUNTANT MEMBER MUMBAI, DATE : 3 0 T H JUNE , 201 7 * SSL * COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 8 IT(SS) NOS. 59 TO 61/MUM/2011 MADHUKANT JASUMAL BIJLANI & ORS. 4) THE CIT CONCERNED 5) THE D.R, A BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI