ACIT, New Delhi V. Ms. Aashna Monga, New Delhi

ITSSA 66/DEL/2009

• Counselvise Citation: [2010] 124 COUNSELVISE.COM (IT) 9164 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 4 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 03-06-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 02-06-2010
• Assessment Year: misc
• Appeal Filed On: 29-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAYANT MISHRA
• Keywords: Unexplained cash credit; Search and seizure; Block assessment
• Section: 132

Judgement Text

IT(SS)A NO. 66/DEL/2009 & CO NO. 370/DEL/09 BLOCK PERIOD : 1.4.1990 TO 20.8.2000 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.(SS)A. NO. 66/DEL/2009 BLOCK PERIOD : 1.4.1990 TO 20.8.2000 ASSTT. COMMISSIONER OF INCOME TAX, VS. MS. AASHNA MONGA, CIRCLE-23(1), A-40, KAILASH COLONY, ROOM NO. 190, CR BUILDING, NEW DELHI I.P. ESTATE, NEW DELHI (PAN: AANPM 0370 N) AND C.O. NO. 370/DEL/2000 (I.T.(SS)A. NO. 66/DEL/2009) BLOCK PERIOD : 1.4.1990 TO 20.8.2000 MS. AASHNA MONGA, VS. ASSTT. COMMISSIONER OF INCOME TAX, C/O RAJ KUMAR & ASSOCIATES, CIRCLE-23(1), CHARTERED ACCOUNTANT, ROOM NO. 190, CR BUILDING, 4435/7, ANSARI ROAD, I.P. ESTATE, NEW DELHI DARYAGANJ, NEW DELHI 110 002 (PAN: AANPM 0370 N) [APPELLANT] (RESPONDENT) DEPARTMENT BY : SHRI JAYANT MISHRA, C.I.T. (D.R.) ASSESSEE BY : SHRI R.K. GUPTA, CA PER SHAMIM YAHYA: AM THIS APPEAL BY THE REVENUE AND CROSS OBJECTION BY THE ASSESSEE EMANATE OUT OF ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 16.7.2009 PERTAINING TO BLOCK PERIOD 1.4.1990 TO 20.8.2000. IT(SS)A NO. 66/DEL/2009 & CO NO. 370/DEL/09 BLOCK PERIOD : 1.4.1990 TO 20.8.2000 2 REVENUES APPEAL 2. THE GROUNDS RAISED READ AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD. C.I.T.(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THE ASSESSMENT FRAMED U/S 158BC IS BARRED BY LIMITATION. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. C.I.T.(A) ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS. 12 ,20,282/- ON ACCOUNT OF UNEXPLAINED CASH CREDIT AND COMMISSION. 3. THE BRIEF FACTS OF THE CASE ARE AS UNDER:- THIS IS THE CASE OF AN INDIVIDUAL. THE CASE EMANAT ES FROM A SEARCH AND SEIZURE OPERATIONS U/S 132 OF THE INCOME TAX ACT, 1 961. THE SEARCH WAS CONDUCTED IN THE CASE OF SHRI MANOJ AGGARWAL AND M/S BEMCO JEWELLERS PVT. LTD. ON 3.8.2000. FROM THE PAPERS SEIZED DURIN G THE SEARCH OPERATION AND FURTHER INVESTIGATION CARRIED OUT IT WAS OBSERV ED THAT THE ASSESSEE HAD RECEIVED AN AMOUNT OF RS. 12,14,211/- FROM M/S BEMC O JEWELLERS PVT. LTD. DURING THE FINANCIAL YEAR 2000-01 AS ALLEGED SALE C ONSIDERATION OF JEWELLERY. IT WAS PRIMA FACIE CONSIDERED TO BE AN ACCOMMODATIO N ENTRY. ON INFORMATION RECEIVED FROM DCIT, CIRCLE-3, NEW DELHI WHO WAS THE ASSESSING OFFICER OF M/S BEMCO JEWELLERS PVT. LTD., NOTICE W AS ISSUED UNDER SECTION 158 BD ON THE ACT ON 6.5.2005. THE ASSESSEE FILED RETURN, IN RESPONSE TO THE NOTICE, IN FORM NO. 2B ON 15.2.2006. AFTER CONS IDERING VARIOUS ISSUES, THE ASSESSING OFFICER PROCEEDED TO MAKE AN ADDITI ON OF RS. 12,14,211/-. THE ORDER UNDER SECTION 158BD OF THE ACT WAS ISSUED BY THE ASSESSING OFFICER ON 29.5.2007. IT(SS)A NO. 66/DEL/2009 & CO NO. 370/DEL/09 BLOCK PERIOD : 1.4.1990 TO 20.8.2000 3 4. IN APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) THE ASSESSEE SUBMITTED THAT THE ORDER U/S 158 BC IN THE CASE OF M/S BEMCO JEWELLERS PVT. LTD. WAS FRAMED ON 29.8.2002, AND THEREFORE IN ACCORDANCE WITH SPECIAL BENCH DECISION IN THE CASE OF SHRI MANOJ AGGARWAL V S. DCIT 310 ITR (AT) 100, THE NOTICE UNDER SECTION 158BD TO THE ASSESSEE SHOULD H AVE BEEN ISSUED PRIOR TO 29.8.2002. REFERRING TO THE SPECIAL BENCH DECISIO N AS ABOVE, LD. COMMISSIONER OF INCOME TAX (APPEALS) HELD AS UNDER:- IN THE IMPUGNED ORDER, IT IS OBSERVED THAT AFTER A BOUT 16 MONTHS, THE LD. DCIT, CEN. CIRCLE 3, NEW DELHI VIDE HIS LET TER DATED 13.1.2004, INFORMED THE ASSESSING OFFICER ABOUT HIS FINDINGS, IN THE FORM OF A SATISFACTION NOTE. PURSUANT TO THIS INTIMATION, AF TER ANOTHER 14 MONTHS, THE ASSESSING OFFICER ISSUED NOTICE UNDER SECTION 158BD ON 6.5.2005 AFTER RECORDING SATISFACTION ON THE SAME DATE AS EVIDENT FROM A PERUSAL OF THE ASSESSMENT FOLDER. AS PER THE DECISION OF THE SPECIAL BENCH, THIS NOTICE, AFTER RECORDING OF SATI SFACTION, SHOULD HAVE BEEN ISSUED BY THE ASSESSING OFFICER BY 31.8.2002, WHICH IS THE DATE WHEN THE LIMITATION UNDER SECTION 158BE EXPIRED. S INCE THE NOTICE UNDER SECTION 158BD HAS BEEN ISSUED AFTER MORE THAN 30 MONTHS OF THE DATE OF EXPIRY OF LIMITATION UNDER SECTION 158B E, THE SAME HAS TO BE CONSIDERED TO BE BEYOND THE PERIOD OF LIMITATIO N AND THEREFORE THE BLOCK ASSESSMENT ORDER WOULD ALSO HAVE TO BE CO NSIDERED AS BARRED BY LIMITATION. THIS WOULD BE IN ACCORDANCE W ITH THE SPECIAL BENCH DECISION IN MANOJ AGGARWAL VS. DCIT (SUPRA). I T IS CLARIFIED THAT THE OTHER PETITIONERS, IN THE SAID DECISION, WERE B EMCO JEWELLERS P. LTD., BISHAN CHAND MUKESH KUMAR, TEJINDER SINGH. THE DECISION OF THE SPECIAL BENCH IS BINDING ON ME, AS HELD BY JURI SDICTIONAL HIGH COURT IN NOKIA CORPORATION V. DIT (INTERNATIONAL TA XATION) (2007) 292 ITR 22 (DELHI. 5. IN VIEW OF THE DECISION ON THE JURISDICTIONAL IS SUE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DID NOT GO INTO THE MERITS OF THE CASE. IT(SS)A NO. 66/DEL/2009 & CO NO. 370/DEL/09 BLOCK PERIOD : 1.4.1990 TO 20.8.2000 4 6. AGAINST THIS ORDER THE REVENUE IS IN APPEAL BEFO RE US. 7. LD. AUTHORISED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT IN IDENTICAL CASE EMANATING OUT OF THE SAME SEARCH, IN ONE OF TH E GROUP MEMBER OF THE ASSESSEE, THE TRIBUNAL HAD DISMISSED THE REVENUES APPEAL. LD. COUNSEL OF THE ASSESSEE FURTHER CONTENDED THAT RELEVANT DATES IN THE SAID CASE AS WELL AS IN THE PRESENT ONE ARE IDENTICAL. IN THE SAID CASE THE ASSESSEE HAS REFERRED TO DECISION OF HONBLE SUPREME COURT IN THE CASE OF MANISH M AHESHWARI VS. ACIT 289 ITR 341 (SC) AND DELHI SPECIAL BENCH DECISION IN THE C ASE OF MANOJ AGGARWAL 310 ITR (AT) 100. CONSIDERING THE ABOVE, THE TRIBUNAL HAS HELD AS UNDER:- WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED TH E MATERIAL ON RECORD. FROM THE ABOVE MENTIONED FACTS, IT IS EVIDENT THAT THE BLOCK ASSESSMENT IN THE CASE OF BAMCO JEWELLERS (SUPRA) WAS COMPLETED O N 28.9.02. FOLLOWING THE ABOVE AUTHORITIES, THE SATISFACTION FOR ISSUIN G NOTICE U/S 158BD QUA THE ASSESSEE SHOULD HAVE BEEN RECORDED UPTO 29.8.02 WH EREAS IN THE INSTANT CASE SATISFACTION HAS BEEN RECORDED ON 13.1.04 IN TERMS OF A LETTER TO ASSESSEES ASSESSING OFFICER WHICH AGAIN HAS TO BE CONSTRUED AS IMPLIED SATISFACTION. RELIANCE OF CASE LAWS BY LEARNED COU NSEL IS WELL PLACED SINCE THE SATISFACTION U/S 158BD WAS NOT RECORDED WITHIN THE MANDATORY STIPULATED TIME, THE ASSESSMENT PROCEEDINGS IN THE ASSESSEES CASE HAVE BEEN RIGHTLY QUASHED BY LD. COMMISSIONER OF INCOME TAX (APPEALS), WE UPHOLD HIS ORDER. 8. LD. DEPARTMENTAL REPRESENTATIVE HAD FAIRLY AGREE D THAT DATES IN THE PRESENT CASE ARE IDENTICAL TO THE CASE OF SMT. RASHMI MONGA REFERRED BY THE LD. COUNSEL OF THE ASSESSEE. 9. WE HAVE CAREFULLY CONSIDERED THE ISSUE. ADMITTE DLY IN THE PRESENT CASE ALSO THE SATISFACTION FOR ISSUING NOTICE U/S 158BD QUA T HE ASSESSEE SHOULD HAVE BEEN RECORDED UPTO 29.8.2002, WHEREAS THE SAME WAS ACTUA LLY RECORDED ON 13.1.2004. IT(SS)A NO. 66/DEL/2009 & CO NO. 370/DEL/09 BLOCK PERIOD : 1.4.1990 TO 20.8.2000 5 HENCE, RESPECTFULLY FOLLOWING THE PRECEDENT, WE UPH OLD THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ON QUASHING TH E ASSESSMENT AND DECIDE THE CASE AGAINST THE REVENUE. HENCE, THE APPEAL FIL ED BY THE REVENUE IS DISMISSED. ASSESSEES CROSS OBJECTION 10. LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT HE W OULD NOT PRESS THE CROSS OBJECTION. ACCORDINGLY THE CROSS OBJECTION FILED B Y THE ASSESSEE STANDS DISMISSED BEING NOT PRESSED. 11. IN THE RESULT, THE APPEAL FILED BY THE REVENUE AND CROSS OBJECTION FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 03/06/2010 UP ON CONCLUSION OF HEARING. SD/- SD/- [R.P. TOLANI] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE 03/06/2010 SRB COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES