Sunil Gupta, V. ACIT, Central Cir 16,

ITSSA 88/DEL/2007

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6462 (ITAT-DELHI)
• Duration Of Justice: 12 year(s) 28 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 07-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 07-06-2017
• Assessment Year: misc
• Appeal Filed On: 09-04-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Assessee Lawyers: V RAJ KUMAR S
• Keywords: Document seized; Principle of natural justice; Documents seized; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH G GG G : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI G.D. AGRAWAL, G.D. AGRAWAL, G.D. AGRAWAL, G.D. AGRAWAL, VICE VICE VICE VICE PRESIDENT PRESIDENT PRESIDENT PRESIDENT AND AND AND AND MS. SUCHITRA KAMBLE MS. SUCHITRA KAMBLE MS. SUCHITRA KAMBLE MS. SUCHITRA KAMBLE, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER IT ITIT IT (SS) (SS) (SS) (SS) A AA A . .. . NO NONO NO . .. . 88/DEL/2007 88/DEL/2007 88/DEL/2007 88/DEL/2007 BLOCK PERIOD : 1990 BLOCK PERIOD : 1990 BLOCK PERIOD : 1990 BLOCK PERIOD : 1990 - -- - 91 TO 2000 91 TO 2000 91 TO 2000 91 TO 2000 - -- - 01 0101 01 SHRI SUNIL GUPTA, SHRI SUNIL GUPTA, SHRI SUNIL GUPTA, SHRI SUNIL GUPTA, B BB B- -- -346, RAJENDRA NAGAR, 346, RAJENDRA NAGAR, 346, RAJENDRA NAGAR, 346, RAJENDRA NAGAR, BAR BAR BAR BAREILLY. EILLY. EILLY. EILLY. PAN : ABWPG7523P. PAN : ABWPG7523P. PAN : ABWPG7523P. PAN : ABWPG7523P. VS. VS. VS. VS. ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -16, 16, 16, 16, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K. SAMPATH AND SHRI V. RAJ KUMAR, ADVOCATES. RESPONDENT BY : SHRI S.S. RANA, CIT - DR. DATE OF HEARING : 25.04.2019 25.04.2019 25.04.2019 25.04.2019 DATE OF PRONOUNCEMENT : 07.05.2019 07.05.2019 07.05.2019 07.05.2019 ORDER ORDER ORDER ORDER PER G.D. AGRAWAL, PER G.D. AGRAWAL, PER G.D. AGRAWAL, PER G.D. AGRAWAL, VICE VICE VICE VICE PRESIDENT PRESIDENT PRESIDENT PRESIDENT : :: :- -- - THIS APPEAL BY THE ASSESSEE FOR THE BLOCK PERIOD 1 990-91 TO 2000-01 IS DIRECTED AGAINST THE ORDER OF LEARNED CI T(A)-II, NEW DELHI DATED 2 ND FEBRUARY, 2007. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUND OF APPEAL :- THAT THE CIT(A) ERRED IN CONFIRMING THE ADDITION O F RS.16,00,000/- MADE ON THE BASIS OF ANNEXURE A-4/70 MERELY ON PRESUMPTION AND SUSPICION AND EVEN IN THE ABSENCE OF THE ORIGINAL DOCUMENT. IN ANY CASE THE ADDITION BEING IN VIOLATION OF THE RULES GOVERNING BLOCK ASS ESSMENT U/S 158BC MUST BE QUASHED. 3. AT THE TIME OF HEARING BEFORE US, IT IS STATED B Y THE LEARNED COUNSEL THAT IN THIS CASE, THE ORIGINAL ASSESSMENT WAS COMPLETED UNDER SECTION 158BC VIDE ORDER DATED 28 TH JUNE, 2002. THE ITAT SET ASIDE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER VI DE ORDER DATED 25 TH IT(SS) A.NO.88/DEL/2007 2 AUGUST, 2004 IN IT(SS) A.NO.192/DEL/2003. WHILE SE TTING ASIDE THE MATTER, THE ITAT GAVE FOLLOWING DIRECTION :- WE ARE OF THE VIEW THAT THERE HAS BEEN VIOLATION O F THE PRINCIPLE OF NATURAL JUSTICE. WE THEREFORE SET ASI DE THE ORDER OF THE AO AND DIRECT THE AO TO CONSIDER THE I SSUE AFRESH AFTER FURNISHING A COPY OF THE SEIZED DOCUME NT TO THE ASSESSEE AND AFFORD HIM AN OPPORTUNITY TO EXPLA IN THE SEIZED DOCUMENTS. THIS GROUND OF APPEAL IS TREATED AS ALLOWED. 4. THE ASSESSING OFFICER, IN PURSUANCE TO THE ORDER OF THE ITAT, COMPLETED THE ASSESSMENT VIDE ORDER DATED 30 TH MARCH, 2006 IN WHICH THE ADDITION OF `16 LAKHS WAS REPEATED. THE ITAT, VIDE ORDER DATED 9 TH MAY, 2008 IN ITA NO.88/DEL/2007, DISMISSED THE APPE AL OF THE ASSESSEE. HOWEVER, IN M.A. NO.299/DEL/2008 VIDE OR DER DATED 6 TH FEBRUARY, 2009, THE ITAT RECALLED ITS ORDER DATED 9 TH MAY, 2008 AND RESTORED THE APPEAL IN ITA NO.88/DEL/2007 FOR FRESH HEARING. SUBSEQUENTLY, IN M.A. NO.240/DEL/2009 VIDE ORDER DA TED 17 TH SEPTEMBER, 2010, THE ITAT MODIFIED ITS ORIGINAL ORD ER DATED 25 TH AUGUST, 2007 IN ITA NO.192/DEL/2003 AND HELD AS UND ER :- 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. ON PERUSAL OF OUR ORDER IT IS CLEAR THAT THE MATTER WAS SET ASIDE TO THE FILE OF THE ASSESSI NG OFFICER WITH A DIRECTION TO CONSIDER THE ISSUE AFTER FURNIS HING THE COPY OF THE SEIZED DOCUMENT TO THE ASSESSEE AND AFF ORD AN OPPORTUNITY TO EXPLAIN THE SEIZED DOCUMENT. MERE FURNISHING COPY OF SEIZED DOCUMENT TO THE ASSESSEE WOULD NOT SERVE THE PURPOSE UNLESS THE ASSESSEE IS ALSO A LLOWED THE OPPORTUNITY TO INSPECT THE ORIGINAL DOCUMENT, W HICH IS INHERENT WHEN ANY DIRECTION IS GIVEN FOR FURNISHING THE COPY OF THE DOCUMENT. WE, THEREFORE, CLARIFY THAT THE A SSESSING OFFICER SHALL ALLOW THE ASSESSEE TO INSPECT THE DOC UMENT AND TO FURNISH A COPY THEREOF TO THE ASSESSEE IN OR DER TO ENABLE HIM TO EXPLAIN THE SEIZED DOCUMENT. WE ORDE R ACCORDINGLY. 5. THUS, BY MODIFYING THE ORDER OF THE ITAT DATED 2 5 TH AUGUST, 2004, NOW THE ITAT DIRECTED THE ASSESSING OFFICER T O NOT ONLY SUPPLY IT(SS) A.NO.88/DEL/2007 3 THE COPY OF SEIZED MATERIAL BUT ALSO ALLOW OPPORTUN ITY TO INSPECT THE ORIGINAL DOCUMENT. ADMITTEDLY, THE ASSESSMENT ORDE R UNDER CONSIDERATION WAS ALREADY PASSED ON 30 TH MARCH, 2006 WHEN THIS ORDER OF THE MISCELLANEOUS APPLICATION WAS NOT IN EXISTEN CE AND THEREFORE, THERE WAS NO OCCASION FOR THE ASSESSING OFFICER TO ALLOW INSPECTION OF SEIZED RECORD TO THE ASSESSEE. HE, THEREFORE, STAT ED THAT THE ONLY WAY TO GIVE EFFECT TO THE ORDER OF THE ITAT IN M.A. NO. 240/DEL/2009 IS TO SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFIC ER AND DIRECT HIM TO MAKE THE ASSESSMENT AFRESH AFTER MAKING PROPER COMP LIANCE OF THE ORDER OF THE ITAT IN M.A. NO.240/DEL/2009. 6. LEARNED DR THOUGH RELIED UPON THE ORDER OF THE A SSESSING OFFICER BUT HE ALSO FAIRLY ADMITTED THAT AFTER THE ORDER OF THE ITAT IN M.A. NO.240/DEL/2009, THE MATTER NEEDS TO BE SET ASIDE T O THE FILE OF THE ASSESSING OFFICER SO THAT THE ASSESSING OFFICER CAN COMPLY WITH THE ORDER OF THE ITAT. IN VIEW OF THE ABOVE, WE SET AS IDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THE MATTER TO THE FIL E OF THE ASSESSING OFFICER. WE DIRECT HIM TO ALLOW THE ASSESSEE TO IN SPECT THE DOCUMENT AND ALSO FURNISH A COPY THEREOF TO THE ASSESSEE IN ORDER TO ENABLE HIM TO EXPLAIN THE SEIZED DOCUMENT. NEEDLESS TO MENTIO N THAT THE ASSESSING OFFICER WILL ALSO ALLOW ADEQUATE OPPORTUN ITY OF BEING HEARD TO THE ASSESSEE AND THEREAFTER WILL READJUDICATE THE M ATTER IN ACCORDANCE WITH LAW. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DEE MED TO BE ALLOWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 07.05.2019 . SD/- SD/- (SUCHITRA KAMBLE (SUCHITRA KAMBLE (SUCHITRA KAMBLE (SUCHITRA KAMBLE ) )) ) ( (( ( G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL ) )) ) JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER VICE VICE VICE VICE PRESIDENT PRESIDENT PRESIDENT PRESIDENT VK. IT(SS) A.NO.88/DEL/2007 4 COPY FORWARDED TO: - 1. APPELLANT : SHRI SUNIL GUPTA, B SHRI SUNIL GUPTA, B SHRI SUNIL GUPTA, B SHRI SUNIL GUPTA, B- -- -346, RAJENDRA NAGAR, 346, RAJENDRA NAGAR, 346, RAJENDRA NAGAR, 346, RAJENDRA NAGAR, BAREILLY. BAREILLY. BAREILLY. BAREILLY. 2. RESPONDENT : ASSISTANT COMMISSIONER OF INC ASSISTANT COMMISSIONER OF INC ASSISTANT COMMISSIONER OF INC ASSISTANT COMMISSIONER OF INCOME TAX, OME TAX, OME TAX, OME TAX, CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -16, NEW DELHI. 16, NEW DELHI. 16, NEW DELHI. 16, NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR