Popatlal Malaji Sanghvi-HUF, Pune V. Assistant Commissioner of Income tax,

ITSSA 9/PUN/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8078 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 5 month(s) 19 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 12-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 25-06-2019
• Assessment Year: misc
• Appeal Filed On: 24-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VISHWAS MUNDHE

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI PARTHA SARATHI CHAUDHURY, JM . / IT(SS)A NO.9/PUN/2017 / ASSESSMENT YEARS : 1996-97 TO 2002-03 SHRI POPATLAL MALAJI SANGHVI HUF, PROP. SANGHVI MALCHAND DHIRAJI & SONS, C/O. SHAH KHANDELWAL JAIN & ASSOCIATES, CHARTERED ACCOUNTANTS, LEVEL 3, RIVERSIDE BUSINESS BAY, WLLESLEY ROAD, NEAR RTO, PUNE 411 001. PAN : AABHS9474D. . / APPELLANT V/S THE ASST. C OMMISSIONER OF INCOME - TAX, CIRCLE 1(2), PUNE. . / RESPONDENT ASSESSEE BY : SHRI NEELESH KHANDELWAL REVENUE BY : SHRI VISHWAS MUNDHE. / ORDER PER ANIL CHATURVEDI, AM : 1. THIS APPEAL FILED BY THE ASSESSEE IS EMANATING OUT OF THE O RDER OF COMMISSIONER OF INCOME TAX (A) 11, PUNE DATED 30.11.20 16 FOR THE ASSESSMENT YEARS 1996-97 TO 2002-03. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON R ECORD ARE AS UNDER :- / DATE OF HEARING : 25.06.2019 / DATE OF PRONOUNCEMENT: 12.07.2019 2 ASSESSEE IS AN INDIVIDUAL STATED TO BE PART OF SANGHVI GR OUP. A SEARCH ACTION U/S 132(1) OF THE ACT WAS CONDUCTED IN SAN GHVI GROUP OF CASES ON 11.10.2001. THEREAFTER, NOTICE U/S 158BC OF THE ACT DATED 28.07.2003 WAS ISSUED AND SERVED ON THE ASSESSEE. THER EAFTER, THE CASE WAS TAKEN UP FOR SCRUTINY AND ASSESSMENT WAS FRAMED U/ S 158BC(C) R.W.S. 158BD VIDE ORDER DT.28.10.2005 AND THE TOTAL INCOME WAS DETERMINED AT RS.75,34,179/-. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A), WHO VIDE ORDER DATED 30.11.2016 (IN APPEAL NO.PN/CIT(A)-11/ACIT, CEN CIR. 1(2), PUNE/SET-ASIDE/10 1/2014- 15) DISMISSED THE APPEAL OF ASSESSEE. AGGRIEVED BY THE OR DER OF LD.CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS : 1. ON FACTS & CIRCUMSTANCES PREVAILING IN THE CASE & AS PER PROVISIONS OF LAW , IT BE HELD THAT THE ORDER PASSED BY THE ASSESSING O FFICER IN TERMS OF PROVISIONS OF SEC . 158BC(C) R.W . S 158BD OF THE INCOME TAX ACT, 1961 & CONFIRMED BY THE 1 ST APPELLANT AUTHORITY IS HELD AS INVALID ' , ILLEGAL & NOT TENABLE WITH LAW & IS WITHOUT ASSUMING JURISDICTION BY THE ASSESSING OFFICER IN TERMS OF THE RELEVANT PROVISIONS OF THE ACT . THE ORDER PASSED BE CANCELLED . 2. WITHOUT PREJUDICE TO GROUND NO.1 & IN THE ALTERNATIVE IT BE HELD THAT THE ORDER PASSED BY THE ASSESSING OFFICER IS BARRED BY LIMITATION OF TIME & IS NOT TENABLE IN LAW & SAME BE CANCELLED. 3. WITHOUT PREJUDICE TO GROUND 1 & 2 & IN THE ALTERNAT IVE, ON FACTS & C I RCUMSTANCES PREVAILING IN THE CASE & AS PER PROVISI ONS OF LAW , IT BE HELD THAT THERE IS NO UNDISCLOSED INCOME ASSESSABLE IN T HE HANDS OF THE APPELLANT IN TERMS OF PROVISIONS OF CHARTER XIVB OF THE ACT . IT FURTHER BE HELD THAT THE INCOME ASSESSED BY THE ASSESSING OFFICER O F RS . 75 , 34 , 179/- ON ACCOUNT OF ALLEGED DIFFERENCE IN VALUE OF STOCK IS ERRONEOUS & CONTRARY TO THE RELEVANT PROVISIONS OF THE ACT & FACTS PREVAILING IN THE CASE . THE INCOME SO ASSESSED BE DELETED FULLY , THE APPELLANT BE GRANTED JUST & PROPER RELIEF IN THIS RESPECT. 3. ALL THE GROUNDS BEING INTER-CONNECTED ARE CONSIDERED TOGETHE R. 4. BEFORE US, AT THE OUTSET, LD.A.R. SUBMITTED THAT THE ISS UE IN THE PRESENT CASE IS COVERED BY THE DECISION OF PUNE BENCH O F THE TRIBUNAL IN THE GROUP CASES OF SHRI POPATLAL MALAJI SANGHVI (HUF) AND OT HERS IN ITA NO.463/PN/2007 AND OTHERS ORDER DT.28.02.2011 AND ALSO T HE DECISION IN 3 THE CASE OF SHRI MANROOPLAL MALAJI SANGHVI (HUF) AND OTHER IN ITA NOS.8 & 10/PUN/2017 ORDER DT.17.01.2018 WHEREIN IT WAS HELD THA T SINCE THE PROCEEDINGS U/S 158BC WERE DROPPED THERE WAS NO QUES TION OF INITIATING PROCEEDINGS U/S 158BD OF THE ACT. HE POINTED TO THE RE LEVANT FINDINGS OF THE ITAT ORDER. HE SUBMITTED THAT THE FACTS OF THE CAS E IN GROUP WHICH HAS BEEN DECIDED BY THE CO-ORDINATE BENCH OF THE TRIBUN AL ARE IDENTICAL TO THE FACTS OF THE CASE FOR THE YEAR UNDER CONSIDERATIO N AND ARE RESULTING OUT OF THE SAME SURVEY ACTION. HE THEREFORE SUBMITTED T HAT FOLLOWING THE AFORESAID ORDERS OF CO-ORDINATE BENCH OF THE TRIBUNAL THE ISSUE BE DECIDED SIMILARLY. LD. D.R. ON THE OTHER HAND DID NOT CONTROVERT THE SUBMISSIONS MADE BY THE LD.A.R. BUT HOWEVER SUPPORTED THE ORDER OF LOWER AUTHOR ITIES. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT IN THE CASE OF SHRI MANROOPLAL MALAJ I SANGHVI (HUF) AND OTHER (SUPRA) THE CO-ORDINATE BENCH OF THE TRIBUNAL H AS HELD THAT ONCE THE PROCEEDINGS U/S 158BC HAVE BEEN DROPPED, THE RE WAS NO QUESTION OF INITIATING PROCEEDINGS U/S 158BD OF THE ACT. I N THE PRESENT CASE, IT IS AN UNDISPUTED FACT THAT THE PROCEEDINGS HAVE BEEN INITIATED U/S 158BC(C) R.W.S. 158BD OF THE ACT. BEFORE US, REVENUE HAS NOT POINTED OU T ANY DISTINGUISHING FACTS IN THE PRESENT CASE AND THAT OF M ANROOPLAL MALAJI SANGHVI (HUF) AND OTHER (SUPRA). WE THEREFORE FOLLOWING THE DECISION IN THE CASE OF MANROOPLAL MALAJI SANGHVI (HUF) AND OTHER (SUP RA) HOLD THAT INITIATION OF PROCEEDINGS U/S 158BD OF THE ACT WAS WITHOUT JURISDICTION IN THE ABSENCE OF 158BC PROCEEDINGS AND ACCORDINGLY, THE A SSESSMENT ORDER PASSED U/S 158BC R.W.S. 158BD OF THE ACT DOES NOT SURV IVE. THUS, THE GROUNDS OF THE ASSESSEE ARE ALLOWED. 4 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THE 12 TH DAY OF JULY, 2019. SD/- SD/- ( PARTHA SARATHI CHAUDHURY ) ( ANIL CHATURVEDI ) ! / JUDICIAL MEMBER '! / ACCOUNTANT MEMBER PUNE; DATED : 12 TH JULY, 2019. YAMINI #$%&'('% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A)-11, PUNE. PR. CIT(CENTRAL) - PUNE. '#$ %%&',) &', / DR, ITAT, A PUNE; $,-./ GUARD FILE. / BY ORDER // TRUE COPY // /01%2&3 / SR. PRIVATE SECRETARY ) &' , / ITAT, PUNE.