Smt. Renukaben J.Parikh, Kadi V. The ACIT.,Cent.Circle-1(4), Ahmedabad

ITSSA 630/AHD/2011

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 0831 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 10 month(s) 1 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 30-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 12-08-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 28-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS VIBHA BHALLA
• Keywords: Search and seizure
• Section: 143(3); 153A; 234B; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER & SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER) IT(SS)A NOS: 628 TO 631/AHD/20 11 (ASSESSMENT YEAR: 2003-04, 2005-06 TO 2007-08) RENUKABEN J. PARIKH 47, RAJESHWARI SOCIETY, THOD ROAD, KADI-382715 V/S A.C.I.T., CENTRAL CIRCLE- 1(4), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: ABUPP1413H APPELLANT BY : SHRI VIJAY RANJAN WITH HIREN TRIVE DI RESPONDENT BY: MRS. VIBHA BHALLA CIT/ D.R. ( )/ ORDER DATE OF HEARING : 12-08-2015 DATE OF PRONOUNCEMENT : 30 -09-2015 PER BENCH 1. THESE FOUR APPEALS FILED BY THE ASSESSEE ARE AGAINS T THE CONSOLIDATED ORDER OF CIT(A)-I, AHMEDABAD DATED 04.10.2011 FOR A.Y. 20 03-04, 2005-06, 2006-07 & 2007-08. ITA NOS. 628 TO 631/AHD/2011 . A.YS. 2003-0 4, 2005-06 TO 2007-08 2 2. BEFORE US, AT THE OUTSET THE LD. A.R. SUBMITTED THA T THOUGH THE APPEALS OF ASSESSEE RELATES TO 4 DIFFERENT ASSESSMENT YEARS BU T THE FACTS AND CIRCUMSTANCES OF ALL THE CASES ARE SIMILAR EXCEPT F OR THE ASSESSMENT YEARS AND AMOUNTS AND THE SUBMISSIONS ARE ALSO COMMON FOR ALL THE APPEALS AND LD. CIT(A) HAS ALSO DISPOSED OF ALL THE APPEALS BY A CO NSOLIDATED ORDER AND THEREFORE ALL THE APPEALS CAN BE HEARD TOGETHER. LD D.R DID NOT OBJECT TO THE AFORESAID SUBMISSIONS OF LD.A.R. WE THEREFORE PROCE ED TO DISPOSE OF ALL THE APPEALS TOGETHER FOR THE SAKE OF CONVENIENCE AND PR OCEED WITH THE FACTS IN A.Y. 2003-04 IN ITA NO. 628/AHD/2011. 3. A SEARCH ACTION U/S. 132 OF THE ACT WAS CONDUCTED I N THE CASE OF RAJA GROUP OF KADI ON 05.02.2009. A WARRANT OF AUTHORIZATION U /S. 132 WAS ISSUED IN THE CASE OF ASSESSEE AND SUBSEQUENTLY NOTICE U/S. 153A WAS ISSUED ON 24.08.2009 AND SERVED UPON THE ASSESSEE AND IN RESP ONSE TO WHICH ASSESSEE FILED HER RETURN OF INCOME FOR A.Y. 03-04 ON 23.12. 2009 DECLARING TOTAL INCOME OF RS. 1,67,590/- AND AGRICULTURAL INCOME OF RS. 8,55,504/-. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESS MENT WAS FRAMED UNDER SECTION 143(3) R.W.S. 153A VIDE ORDER DATED 21.12.2 010 AND THE TOTAL TAXABLE INCOME WAS DETERMINED AT RS. 2,64,972/- INTERALIA B Y DISALLOWING ON ESTIMATION BASIS 20% OF EXPENSES INCURRED FOR EARNI NG AGRICULTURAL INCOME AS THE A.O WAS OF THE VIEW THAT THE EXPENSES WERE I NCURRED FROM UNDISCLOSED INCOME. HE ACCORDINGLY DISALLOWED RS. 97,382/- AND CONSIDERED IT TO BE UNDISCLOSED INCOME. AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) WHO BY A CONSOLIDATED ORDE R DATED 04.10.2011 UPHELD THE ADDITION OF EXPENDITURE MADE BY THE A.O. AGGRIEVED BY THE AFORESAID ORDER OF LD. CIT(A), ASSESSEE IS NOW IN A PPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS:- ITA NOS. 628 TO 631/AHD/2011 . A.YS. 2003-0 4, 2005-06 TO 2007-08 3 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELL ANT'S CASE, THE CIT(A) ERRED IN DISMISSING THE ASSESSEE'S APPEAL. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) ERRED IN NOT ACCEPTING THE ASSESSEE'S PLEA THAT IT WAS NOT AT ALL A FIT CA SE FOR INVOKING THE PROVISIONS OF SECTION 153A AND HE FURTHER ERRED IN UPHOLDING THE VALIDITY OF IMPUGNED ASSESSMENT ORDER UNDER SECTION 153A, DATED 21 ST DECEMBER, 2010. 3. WITHOUT PREJUDICE, ON THE FACTS AND IN THE CIRCUMST ANCES OF THE CASE THE CIT(A) SHOULD HAVE REALIZED THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN EMBARKING UPON THE PROCESSING AND SCRUTINY OF THE ASSESSMENT IN A FASHION WHICH WAS PERMISSIBLE IN A REGULAR ASSESSMENT UNDER SECTION 143(3) BUT IN THIS PARTICULAR CASE IT WAS NOT PERMISSIBLE UNDER SECTION 153A. 4. WITHOUT PREJUDICE, THE CIT(A) SHOULD HAVE HELD THAT IN AN ASSESSMENT MADE IN PURSUANCE OF SECTION 153A, THE ADJUSTMENT MADE IN T HE AFORESAID ASSESSMENT ORDER WAS NOT REQUIRED TO BE MADE. 5. WITHOUT PREJUDICE, ON THE FACTS AND IN THE CIRCUMST ANCES OF THE CASE, THE CIT(A) ERRED IN UPHOLDING ASSESSING OFFICER'S PRESUMPTION THAT S OME EXPENDITURE ON AGRICULTURAL OPERATIONS WAS INCURRED OVER AND ABOVE THE EXPENDIT URE SHOWN IN THE ACCOUNTS AND HE FURTHER ERRED IN UPHOLDING THE PRESUMPTION OF T HE ASSESSING OFFICER THAT SUCH DIFFERENCE IN EXPENDITURE WAS INCURRED FROM ASSESSE S' S INCOME WHICH WAS LIABLE TO TAX AND HE FURTHER ERRED IN UPHOLDING AN ADDITION O F RS.87,382, AS IN FACT IT CANNOT BE MADE EVEN UNDER SECTION 69C. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) ERRED IN NOT ALLOWING RELIEF TO THE ASSESSEE IN REGARD TO INTEREST UNDER SECTION 234B AND 234D. 4. AT THE OUTSET, LD. A.R. SUBMITTED THAT THOUGH ASSES SEE HAS RAISED VARIOUS GROUNDS BUT THE ONLY ISSUE IS AS TO WHETHER ANY ADD ITION COULD BE MADE IN THE ABSENCE OF ANY INCRIMINATING MATERIAL FOUND AT THE TIME OF SEARCH. HE FURTHER SUBMITTED THAT NO INCRIMINATING MATERIAL OR UNDISCL OSED INCOME WAS DETECTED DURING THE SEARCH AND SEIZURE OPERATIONS AND THEREF ORE THE PROVISIONS OF SECTION 153A WERE NOT APPLICABLE IN ASSESSEES CASE AND IF THE DEPARTMENT ITA NOS. 628 TO 631/AHD/2011 . A.YS. 2003-0 4, 2005-06 TO 2007-08 4 ENTERTAINED DOUBTS ABOUT THE EXPENDITURE, THE MATTE R COULD HAVE BEEN PROCESSED IN THE COURSE OF ORIGINAL ASSESSMENT PROC EEDINGS BUT COULD NOT HAVE BEEN PROCESSED IN THE PROCEEDINGS U/S. 153A. HE FURTHER SUBMITTED THAT SIMILAR ADDITIONS WERE MADE IN THE CASE OF DAHYABHA I PATEL OF THE SAME GROUP ARISING OUT OF THE SAME SEARCH THE ADDITION M ADE BY THE A.O WAS CHALLENGED BEFORE THE HONBLE TRIBUNAL IN APPEAL NO . IT(SS)A NOS. 578 TO 582 OF 2011. HE FURTHER SUBMITTED THAT THE HEARING IN THOSE CASE HAVE ALREADY BEEN CONCLUDED ON 13.07.2015 AND SINCE THE FACTS OF THE PRESENT CASE ARE IDENTICAL TO THAT OF DAHYABHAI P. PATEL, A SIMILAR DECISION AS TAKEN BY THE CO- ORDINATE BENCH OF TRIBUNAL IN THE CASE OF DAHYABHAI PATEL BE TAKEN IN THE PRESENT CASE ALSO. THE LD. D.R. DID NOT OBJECT TO T HE AFORESAID SUBMISSION OF LD. A.R. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPECT TO ADDITI ON MADE IN THE ASSESSMENT FRAMED U/S. 153A. IN THE PRESENT CASE, REVENUE HAS NOT POINTED TO ANY INCRIMINATING MATERIAL FOUND AT THE TIME OF SEARCH WHICH HAS RESULTED INTO MAKING THE ADDITIONS IN THE ASSESSMENT FRAMED U/S. 153A. WE FIND THAT IN THE CASE OF DAHYBHAI P. PATEL (SUPRA), WHO IS STATED TO BE OF THE SAME GROUP AS OF THE ASSESSEE AND IN THAT CASE, THE ADDITION MADE ON ACCOUNT OF THE SAME SEARCH ACTION WERE DELETED BY THE CO-ORDINATE BENCH OF TRIBUNAL BY HOLDING AS UNDER:- 5.4. IN THE PRESENT CASE, THE ASSESSMENT PERTAINING TO ASSESSMENT YEARS 2003-04 TO 2007- 08 HAD NOT BEEN ABATED. THIS FACT IS NOT DISPUTED B Y THE REVENUE. THEREFORE, IN THESE YEARS, THE ASSESSMENT OUGHT TO HAVE BEEN MADE ON TH E BASIS OF INCRIMINATING MATERIAL AS PER THE DECISION OF THE HON'BLE SPECIAL BENCH IN TH E CASE OF ALL CARGO GLOBAL LOGISTICS LTD. VS. DY.CIT, CENTRAL CIRCLE-44(SUPRA). THE REVE NUE HAS NOT POINTED OUT WHAT WAS THE ITA NOS. 628 TO 631/AHD/2011 . A.YS. 2003-0 4, 2005-06 TO 2007-08 5 INCRIMINATING MATERIAL AVAILABLE ON THE BASIS OF WH ICH THE IMPUGNED ASSESSMENT ORDERS HAD BEEN FRAMED. IN THE ABSENCE OF SUCH MATERIAL, W E CANNOT SUSTAIN THE IMPUGNED ASSESSMENT IN VIEW OF THE BINDING PRECEDENT AS RELI ED UPON BY THE ASSESSEE. THEREFORE, WE HEREBY QUASH THE ASSESSMENT ORDERS PERTAINING TO AY S 2003-04 TO 2007-08 AS CHALLENGED BEFORE US IN THIS BUNCH OF APPEALS. THUS, GROUND NO . L OF ASSESSEE'S APPEAL(S) IS ALLOWED. 6. BEFORE US, REVENUE HAS NOT POINTED OUT ANY DISTINGU ISHING FEATURE IN THE CASE OF ASSESSEE WITH THAT OF DAHYABHAI P. PATEL (SUPRA) . IN VIEW OF THE AFORESAID FACTS AND FOLLOWING THE SAME REASONING GIVEN BY THE CO-ORDINATE BENCH WHILE PASSING THE ORDER IN THE CASE OF DAHYABHAI P. PATEL (SUPRA), THE ORDERS PASSED FOR A.Y. 2003-04, 2005-06, 2006-07 & 2007-08 ARE QUASHED. THUS THE GROUND RAISED BY THE ASSESSEE ARE ALLOWED. 7. IN THE RESULT, ALL THE APPEALS OF ASSESSEE ARE ALLO WED. ORDER PRONOUNCED IN OPEN COURT ON 30 - 09 - 2015. SD/- SD/- (RAJPAL YADAV) (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