Shri Shree Prakash Pandey , Kolkata V. DCIT, Central Circle - 3(3), Kolkata , Kolkata

ITSSA 73/KOL/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5580 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 14 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 17-09-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 03-09-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 153A; 73; 132

Judgement Text

1 IT(SS)A NOS. 73 TO 78/KOL/2018 SHRI SHREE PRAKASH PANDEY AYS 2008-09 TO 2013-14 , B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOLKATA [BEFORE HONBLE SHRI A. T. VARKEY, JM & HONBLE SHRI MANISH BORAD, AM] I.T.(SS)A. NOS. 73 TO 78/KOL/2018 ASSESSMENT YEARS: 2008-09 TO 2013-14 SHRI SHREE PRAKASH PANDEY (PAN: AKNPP 2692 Q) VS. DCIT, CENTRAL CIRCLE-3(3), KOLKATA APPELLANT RESPONDENT DATE OF HEARING (VIRTUAL) 09.09.2021 DATE OF PRONOUNCEMENT 17.09.2021 FOR THE APPELLANT NONE FOR THE RESPONDENT SHRI TUSHAR DHAWAL SINGH, CITDR ORDER PER BENCH: THESE APPEALS ARE PREFERRED BY THE ASSESSEE AGAINST THE COMMON ORDER OF LD. CIT(A)-21, KOLKATA DATED 12.06.2021 FOR ASSESSMENT YEARS 2008-09 TO 2013-14 RESPECTIVELY. 2. NONE APPEARED FOR THE ASSESSEE EVEN THOUGH THE APPEALS WERE FIXED FOR TWENTY TIMES. 3. THE LD. CITDR SHRI TUSHAR DHAWAL SINGH AT THE OUTSET SUBMITTED THAT THE ASSESSMENT ORDERS WERE FRAMED U/S 153A/143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) PURSUANT TO SEARCH U/S 132 OF THE ACT DATED 21/22 ND NOVEMBER, 2013 FOR AY 2014-15. ACCORDING TO LD. CITDR THE ASSESSEE FOR THE FIRST TIME HAS RAISED IN ALL THESE APPEALS THE LEGAL ISSUE AS TO WHETHER ANY ADDITION CAN BE SUSTAINED IN THE UNABATED ASSESSMENT PROCEEDINGS WITHOUT THE AID OF INCRIMINATING MATERIALS UNEARTHED DURING THE SEARCH I.E. FOR THESE RESPECTIVE ASSESSMENT YEARS. WE NOTE THAT THIS ISSUE HAS NOT BEEN RAISED BEFORE THE LD. CIT(A) AND THIS REQUIRED FACTUAL VERIFICATIONS AS TO WHETHER THE ASSESSMENT YEARS ARE ABATED OR UN-ABATED AND WHETHER THE AO HAS MADE ANY ADDITIONS BASED ON INCRIMINATING MATERIAL UNEARTHED DURING SEARCH OR NOT. AND WE NOTE THAT THE ASSESSEE HAS NOT 2 IT(SS)A NOS. 73 TO 78/KOL/2018 SHRI SHREE PRAKASH PANDEY AYS 2008-09 TO 2013-14 FILED ANY PAPER BOOKS TO SUBSTANTIATE THIS LEGAL GROUND RAISED BY THE ASSESSEE FOR ALL THE ASSESSMENT YEARS. SO THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY AND TAKING NOTE THAT THE ASSESSEE IS NOT REPRESENTING HIMSELF BEFORE US, WE ADMIT THE GROUNDS OF APPEAL WHICH IS THE SAME FOR ALL THE ASSESSMENT YEARS. THE GROUNDS OF APPEAL RAISED FOR AY 2008-09 IS AS UNDER: 1. FOR THAT THE ADDITION MADE BY THE AO U/S 153A PROCEEDINGS DID NOT HAVE ANY NEXUS WITH THE INCRIMINATING MATERIALS UNEARTHED DURING THE COURSE OF THE SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT. 2. FOR THAT COMPLETED ASSESSMENT CAN BE INTERFERED WITH WHILE MAKING THE ASSESSMENT U/S 153A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIALS UNEARTHED IN COURSE OF THE SURVEY. 3. FOR THAT THERE IS NO SATISFACTION RECORDED BY THE AO IN PROCEEDING U/S 153A THAT THE ASSESSMENT MADE U/S 153A BASED ON THE MATERIAL UNEARTHED IN COURSE OF THE SURVEY. 4. FOR THAT JURISDICTIONAL CALCUTTA HIGH COURT HAS ALREADY SETTLED THE LAW IN ASSESSMENT U/S 153A ADDITION MUST BE BASED ON INCRIMINATING MATERIAL FOUND IN COURSE OF SEARCH. 5. FOR THAT IN ANY EVENT, THE LD. CIT(A) WAS NOT CORRECT IN LAW IN NOT ALLOWING THE PETITIONERS GROUNDS OF APPEAL REGARDING (I) ADJUSTMENT OF LOSSES OF RS. 4,70,683/-. YOUR APPELLANT CRAVES LEAVE TO ADD SUPPLEMENT OR AMEND FURTHER GROUND OR GROUNDS AT THE TIME OF HEARING. AND IN ALL OTHER APPEALS OTHER THAN THE CHANGE OF FIGURES/SUMS, THE GROUNDS OF APPEAL ARE SAME/SIMILAR. AND SINCE THESE GROUNDS WERE NOT RAISED BEFORE THE LD. CIT(A), THEREFORE WE ARE OF THE OPINION THAT THESE GROUNDS OF APPEAL NEED TO BE ADJUDICATED AFRESH BY THE LD. CIT(A) AND MAY CALL FOR REMAND REPORT FROM THE AO ON THESE SPECIFIC GROUNDS OF APPEAL THAT WHEN THERE WAS NO INCRIMINATING MATERIAL AGAINST THE ASSESSEE WHETHER ANY ADDITION CAN BE MADE IN AN UNABATED ASSESSMENT OR NOT ? THE WELL SETTLED LAW ON THE SAME IS THAT IF IT IS AN UN-ABATED ASSESSMENT, MEANING IF THE ASSESSMENT IS NOT PENDING BEFORE THE AO ON 21/22 ND NOVEMBER, ( DATE OF SEARCH ), THEN NO ADDITION CAN BE MADE OTHER THAN REITERATING THE ASSESSED/RETURNED INCOME. IF THE ASSESSMENT IS AN ABATED ON THE DATE OF SEARCH, THE AO IS AT 3 IT(SS)A NOS. 73 TO 78/KOL/2018 SHRI SHREE PRAKASH PANDEY AYS 2008-09 TO 2013-14 LIBERTY TO MAKE ASSESSMENT EVEN WITHOUT THE AID OF INCRIMINATING MATERIALS AND FOR THAT WE RELY ON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS.. KABUL CHAWLA REPORTED IN 380 ITR 573 (DEL) WHEREIN IT WAS HELD AS UNDER: 37. ON A CONSPECTUS OF SECTION 153A(1) OF THE ACT, READ WITH THE PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLAINED IN THE AFOREMENTIONED DECISIONS, THE LEGAL POSITION THAT EMERGES IS AS UNDER : (I) ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF THE ACT, NOTICE UNDER SECTION 153A(1) WILL HAVE TO BE MANDATORILY ISSUED TO THE PERSON SEARCHED REQUIRING HIM TO FILE RETURNS FOR SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR IN WHICH THE SEARCH TAKES PLACE. (II) ASSESSMENTS AND REASSESSMENTS PENDING ON THE DATE OF THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH ASSESSMENT YEARS WILL HAVE TO BE COMPUTED BY THE ASSESSING OFFICERS AS A FRESH EXERCISE. (III) THE ASSESSING OFFICER WILL EXERCISE NORMAL ASSESSMENT POWERS IN RESPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT ASSESSMENT YEAR IN WHICH THE SEARCH TAKES PLACE. THE ASSESSING OFFICER HAS THE POWER TO ASSESS AND REASSESS THE 'TOTAL INCOME' OF THE AFOREMENTIONED-SIX YEARS IN SEPARATE ASSESSMENT ORDERS FOR EACH OF THE SIX YEARS. IN OTHER WORDS, THERE WILL BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF'EACH OF THE SIX ASSESSMENT YEARS 'IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX'. (IV) ALTHOUGH SECTION 153A DOES NOT SAY THAT ADDITIONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SEARCH, OR OTHER POST-SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE ASSESSING OFFICER WHICH CAN BE RELATED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THAT THE ASSESSMENT 'CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY, AN ASSESSMENT HAS TO BE MADE UNDER THIS SECTION ONLY ON THE BASIS OF THE SEIZED MATERIAL.' (V) IN THE ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMENT CAN BE MADE. THE WORD 'ASSESS' IN SECTION 153A IS RELATABLE TO ABATED PROCEEDINGS (I.E., THOSE PENDING ON THE DATE OF SEARCH) AND THE WORD 'REASSESS' TO THE COMPLETED ASSESSMENT PROCEEDINGS. (VI) IN SO FAR AS THE PENDING ASSESSMENTS ARE CONCERNED, THE JURISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UNDER SECTION 153A MERGES INTO ONE. ONLY ONE ASSESSMENT SHALL BE MADE SEPARATELY FOR EACH ASSESSMENT YEAR ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER MATERIAL EXISTING OR BROUGHT ON THE RECORD OF THE ASSESSING OFFICER. (VII) COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE ASSESSING OFFICER WHILE MAKING THE ASSESSMENT UNDER SECTION 153A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS OR UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT. CONCLUSION 4 IT(SS)A NOS. 73 TO 78/KOL/2018 SHRI SHREE PRAKASH PANDEY AYS 2008-09 TO 2013-14 38. THE PRESENT APPEALS CONCERN THE ASSESSMENT YEARS 2002-03, 2005-06 AND 2006-07. ON THE DATE OF THE SEARCH THE SAID ASSESSMENTS ALREADY STOOD COMPLETED. SINCE NO INCRIMINATING MATERIAL WAS UNEARTHED DURING THE SEARCH, NO ADDITIONS COULD HAVE BEEN MADE TO THE INCOME ALREADY ASSESSED. 39. THE QUESTION FRAMED BY THE COURT IS ANSWERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. IN THE LIGHT OF THE AFORESAID RATIO-DECIDENDI, WE SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(A) IN RESPECT OF ALL THESE ASSESSMENT ORDERS AND REMAND THE AFORESAID GROUNDS OF APPEAL BEFORE THE LD. CIT(A) FOR FRESH ADJUDICATION IN ALL THE ASSESSMENT YEARS [ASSESSMENT YEARS: 2008-09 TO 2013-14] IN ACCORDANCE TO LAW. 4. IN THE RESULT, ALL THE APPEALS OF ASSESSEE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 17TH SEPTEMBER, 2021. SD/- SD/- (MANISH BORAD) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 17.09.2021 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. APPELLANT- SHRI SHREE PRAKASH PANDEY, P-214, BLOCK-A, LAKE TOWN, KOLKATA- 700089. 2. RESPONDENT DCIT, CENTRAL CIRCLE-3(3), KOLKATA 3. CIT(A)- 21, KOLKATA 4. CIT- KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA (SENT THROUGH E-MAIL) TRUE COPY BY ORDER ASSISTANT REGISTRAR/DDO ITAT, KOLKATA BENCHES, KOLKATA