ACIT, Bhubaneswar V. Achyutananda Samant, Bhubaneswar

ITSSA 9/CTK/2010

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8428 (ITAT-CUTTACK)
• Duration Of Justice: 9 month(s) 23 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 04-04-2011
• Appeal Filed By: Department
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 11-06-2010
• Court: TRIBUNAL
• Section: 153A

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK ( ) BEFORE . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER. /AND . . . , S HRI K.S.S.PRASAD RAO , JUDICIAL MEMBER / I.T (SS) A.NO. 09/CTK/2010 AND C.O. NO.15/CTK/2010 (FILED BY ASSESSEE) / ASSESSMENT YEAR 2006 - 07 ASST.COMMISSIONER OF INCOME - TAX, CIRCLE 2(2), BHUBANESWAR. - - - VERSUS - ACHUTANANDA S AMANT, PLOT NO.1002/2478, IRC VILLAVE,NAYAPALLI, BHUBANESWAR PAN NO.ABVPS 8598 Q ( /APPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI P.C.MOHANTY, DR / FOR THE RESPONDENT: / SHRI S.K.AGARW AL, AR / ORDER . . . , , SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER . THE APPEAL IS FILED BY THE REVENUE WHEREAS THE CROSS OBJECTION IS FILED BY THE ASSESSEE, AGAINST THE ORDER PASSED BY THE COMMISSIONER OF INCOME - TAX (APP EALS) DT.15./3.2010 FOR THE ASSESSMENT YEAR 2006 - 07 IN CASE OF THE ASSESSEE. 2. THE DEPARTMENT HAS RAISED THE SOLE ISSUE THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) IS NOT JUSTIFIED IN ANNULLING THE ASSESSMENT ORDER PASSED U/ S.153B(B)/143(3) OF THE INCOME - TAX ACT,1961 FORGETTING FOR A MOMENT THAT THE SAID ORDER IS CURABLE U/S.292B OF THE ACT. THE C.O. FILED BY THE ASSESSEE IS IN SUPPORT OF THE ORDER OF THE LEARNED CIT(A). 3. BOTH THE PARTIES WERE HEARD REGARDING THE ISSUES RAI SED AND THEIR LEGAL IMPLICATIONS. 4. DURING THE COURSE OF HEARING THE LEARNED DR HAS CONTENDED MAINLY THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER IS CURABLE U/S.292B OF THE ACT AND IN THAT VIEW OF THE MATTER, THE IMPUGNED ORDER PASSED BY THE LEARNED CIT(A) BY ANNULLING THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S.153(B(B)/143(3) OF THE ACT. THEREFORE, IN THAT VIEW OF THE MATTER, THE IMPUGNED ORDER IS I.T(SS)A.NO. 09/CTK/2010 AND C.O. NO.15/CTK/2010 2 UNSUSTAINABLE FOR LEGAL SCRUTINY AND SOUGHT FOR SETTING ASIDE THE SAME AND UPHOLD ING THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER AND ALLOWING THE APPEAL OF THE REVENUE. 5. CONTRARY TO THIS, THE LEARNED AR OF THE ASSESSEE HAS VEHEMENTLY ARGUED SUPPORTING THE IMPUGNED ORDER PASSED BY THE LEARNED CIT(A) AND ASSAILING THE ORDER PA SSED BY THE ASSESSING OFFICER CONTENDING INTER ALIA THAT THE PROVISIONS CONTAINED IN SECTIONS 153A TO 153D, WHICH ARE EFFECT FROM1.6.2003 CLEARLY SAYS THAT THE ASSESSING OFFICER IS ENTITLED TO REOPEN THE ASSESSMENT OF SIX YEARS PRIOR TO THE YEAR IN WHICH SEARCH WAS TAKEN PLACE. UNDISPUTEDLY THE SEARCH IN THIS CASE HAS TAKEN PLACE ON 9.8.2005. THEREFORE, THE ASSESSING OFFICER IS ENTITLED TO REOPEN THE ASSESSMENT OF SIX YEARS PRIOR TO THE YEAR IN WHICH THE SEARCH WAS MADE WHICH COMES TO AYS 2000 - 01 TO 2005 - 0 6. AS THE DATE OF SEARCH BEING 9,.8.2005 WHICH FALLS WITHIN THE ASSESSMENT YEAR 2006 - 07, THE ASSESSING OFFICER HAS NO JURISDICTION TO ISSUE NOTICE U/S.153A(1)(A) OF THE ACT. THIS PROPOSITION WAS ACCEPTED BY THE ITAT, CUTTACK BENCH IN ITS ORDER DT. 4.4.200 9 IN THE CASE OF KALINGA INSTITUTE OF INDUSTRIAL TECHNOLOGY V. DCIT IN IT(SS)A NO.85/CTK/2009.THEREFORE,THE APPEAL OF THE DEPARTMENT IS NOT HAVING ANY MERITS IN THE LIGHT OF THE SAID DECISION OF THE TRIBUNAL BASING ON THE RULES OF PRECEDENCE. ACCORDINGLY, HE SOUGHT FOR DISMISSAL OF THE APPEAL OF THE DEPARTMENT ALLOW THE CROSS OBJECTION FILED BY THE ASSESSEE. 6. ON CAREFUL ANALYSIS OF THE IMPUGNED ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AS WELL AS THE ORDER OF THIS BENCH IN THE CASE OF KALINGA INSTITUTE OF INDUSTRIAL TECHNOLOGY V. DCIT IN IT(SS)A NO.85/CTK/2009, WE FIND THAT AS PER THE PROVISIONS CONTAINED IN SECTIONS 153A TO 153D, THE ASSESSING OFFICER IS HAVING POWER TO REOPEN THE ASSESSMENTS FOR SIX YEARS PRIOR TO THE YEAR IN WHICH SEARCH TOOK PLACE. ADMITEDLY, IN THE PRESENT CASE AT HAND, THE SEARCH HAD TAKEN PLACE ON 9.8.2005 WHICH FALLS IN THE ASSESSMENT YEAR ASSESSMENT YEAR 2006 - 07 AND THE PREVIOUS YEARS BEING AYS 2000 - 01 TO 2005 - 06.THEREFORE, THE NOTI CE ISSUED BY THE ASSESSING OFFICER U/S.153A(1)(A) TO THE ASSESSEE FOR THE ASSESSMENT YEAR 2006 - 07 IS WITHOUT JURISDICTION THEREBY IT IS INVALID. THIS VIEW IS SUPPORTED BY THE DECISION OF ITAT, CUTTACK BENCH IN THE CASE OF I.T(SS)A.NO. 09/CTK/2010 AND C.O. NO.15/CTK/2010 3 KALINGA INSTITUTE OF INDUSTRIAL TE CHNOLOGY V. DCIT IN IT(SS)A NO.85/CTK/2009 AS STATED SUPRA, BASING ON WHICH ONLY THE LEARNED CIT(A)HAS PASSED HIS ORDER. IN THIS VIEW OF THE MATTER, THE ORDER PASSED BY THE LEARNED CIT(A) IS NOT INFIRM IN ANY WAY REQUIRING INTERFERENCE. HENCE, THE SAME IS UPHELD. BY FINDING THE DEPARTMENTAL APPEAL DEVOID OF MERITS, WE DISMISS THE SAME. SINCE THE CROSS OBJECTION FILED BY THE ASSESSEE IS IN SUPPORT OF THE LEARNED CIT(A) AND SINCE WE HAVE UPHELD THE IMPUGNED ORDER OF THE LEARNED CIT(A), THE CROSS OBJECTION FIL ED BY THE ASSESSEE IS DISPOSED OF ACCORDINGLY. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED AND THE CROSS OBJECTION FILED BY THE ASSESSEE IS DISPOSED OF ACCORDINGLY. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 4 TH APRIL, 2011 ( . . ) , , (K.K.GUPTA), ACCOUNTANT MEMBER. ( . . . ) , (K.S.S.PRASAD RAO), JUDICIAL MEMBER. ( ) DAT E: 4 TH APRIL, 2011 - COPY OF THE ORDER FORWARDED TO: 1 . / THE APPELLANT : ASST.COMMISSIONER OF INCOME - TAX, CIRCLE 2(2), BHU BANESWAR. 2 / THE RESPONDENT: ACHUTANANDA SAMANT, PLOT NO.1002/2478, IRC VILLAVE,NAYAPALLI, BHUBANESWAR. 3 . / THE CIT, 4 . ( )/ THE CIT(A), 5 . / DR, CUTTACK BENCH 6 . GUARD FILE . / TRUE COPY, / BY ORDER, [ ] SENIOR PRIVATE SECRETARY ( ), ( H.K.PADHEE ), SENIOR.PRIVATE SECRETARY.