SHRI LOKESH JAIN, MUMBAI V. ACIT 18(2), MUMBAI

ITSSA 97/MUM/2007

• Counselvise Citation: [2010] 124 COUNSELVISE.COM (IT) 9104 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 9 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 11-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 02-06-2010
• Assessment Year: misc
• Appeal Filed On: 01-06-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUM EET KUMAR
• Assessee Lawyers: N M PORWAL
• Keywords: Opportunity of being heard; Block assessment; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI R.S.PADVEKAR, JM IT(SS)A NO.97/MUM/2007 : BLOCK PERIOD 1.4.1991 TO 5.3.2001 SHRI LOKESH JAIN 3 BOOTWALA CHAWL, NEW PRABHADEVI ROAD MUMBAI PA NO.ADKPJ2969A. VS. THE ASSTT.COMMISSIONER OF INCOME - TAX CIRCLE 18(2) MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI N.M.PORWAL RESPONDENT BY : SHRI SUMEET KUMAR O R D E R PER R.S.SYAL, AM : THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDE R PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) ON 5.1.2007 IN RELATION TO THE BLOCK PERIOD 1.4.1991 TO 5.3.2001. 2. THE APPEAL WAS FILED BELATEDLY BY 49 DAYS. APPLI CATION FOR CONDONATION OF DELAY HAS BEEN PLACED ON RECORD ALONG WITH AFFIDAVI T STATING THE REASONS FOR SUCH DELAY. WE ARE SATISFIED WITH THE REASONS SO STATED IN THE APPLICATION. DELAY IS CONDONED AND WE ARE TAKING UP THE APPEAL FOR DISPOS AL ON MERITS. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT ON E SHRI JITENDRA KUMAR GANDHI, A RESIDENT OF MUMBAI WAS ARRESTED BY THE RAILWAY PO LICE, VASCO, GOA ON 3.3.2001 HAVING CASH AMOUNTING TO RS.9,25,000 IN HIS POSSESS ION. AS HE COULD NOT GIVE SATISFACTORY EXPLANATION OF THE CASH, A WARRANT OF AUTHORIZATION U/S.132A WAS ISSUED IN ORDER TO SEIZE THE CASH. THE WARRANT WAS EXECUTE D ON 5.3.2001 AND THE CASH OF RS.9,25,000 WAS REQUISITIONED FROM THE RAILWAY POLI CE. STATEMENT OF SHRI JITENDRA IT(SS)A NO.97/MUM/2007 SHRI LOKESH JAIN. 2 KUMAR GANDHI WAS RECORDED U/S.132(4) WHO CLAIMED TO BE AN EMPLOYEE OF SNOW WHITE LAUNDRY OF MUMBAI BUT COULD NOT GIVE ITS FUL L ADDRESS. HE STATED THAT THIS MONEY WAS GIVEN TO HIM TO BY THE PROPRIETOR OF M/S. SNOW WHITE LAUNDRY TO HAND OVER THE SAME TO HIS RESIDENCE AT BHATKAL. SUBSEQUE NTLY FOUR PERSONS IN THEIR STATEMENTS RECORDED U/S.131 EXPLAINED THAT THE AMOU NT OF RS.9,25,000 WAS COLLECTED FOR THE PURPOSE OF ACQUISITION OF 45% PAR TNERSHIP SHARE-HOLDING OF SHRI R.ABDUL LATIF AND MRS.SAHARABHANU LATIF, THE RETIR ING PARTNERS OF M/S.SNOW WHITE CLEANING WORKS. THOSE FOUR PERSONS INCLUDED THE NAM E OF ASSESSEE ALONG WITH SHRI ABDUL REHMAN DAMDA AND SHRI ZIA UR REHMAN. IN THIS BACKGROUND OF THE FACTS THE ASSESSING OFFICER FRAMED THE ASSESSMENT IN THE CASE OF THE ASSESSEE BY TREATING THE SUM OF RS.2,25,000 BEING THE SHARE IN SEIZED CASH O F RS.9,25,000 AS HIS UNDISCLOSED INCOME. APART FROM THAT A FURTHER ADDITION OF RS.3, 63,447 WAS MADE. THE ASSESSEE TOOK UP THE MATTER BEFORE THE LEARNED CIT(A) INTER ALIA CHALLENGING THE ISSUANCE OF NOTICE U/S.158BD ON THE ASSESSEE. THE LEARNED CIT(A ) DISMISSED THE ASSESSEES APPEAL WITHOUT GIVING ANY FINDING ON GROUND NO.3 RA ISED BY THE ASSESSEE CHALLENGING THE ISSUANCE OF NOTICE U/S.158BD. 4. BEFORE US THE LEARNED COUNSEL FOR THE ASSESSEE C ONTENDED THAT THE BLOCK ASSESSMENTS FRAMED IN THE NAMES OF SHRI ABDUL REHMA N DAMDA AND SHRI ZIA UR REHMAN HAVE BEEN SET ASIDE BY THE TRIBUNAL IN IT(SS )A NOS.1 & 3/MUM/2007 BY HOLDING THAT THE NOTICES ISSUED FOR ASSESSMENT WERE INVALID. IT WAS, THEREFORE, PRAYED THAT SIMILAR TREATMENT BE GIVEN IN THE CASE OF THE PRESENT ASSESSEE. HOWEVER IT WAS OBSERVED AND ALSO POINTED OUT TO THE LD. AR DURING THE COURSE OF HEARING, THAT THE ASSESSEE HAS NOT RAISED ANY GROUND CHALLEN GING THE ISSUANCE OF NOTICE U/S.158BD, SIMILAR TO WHICH WAS RAISED BEFORE THE LEARNED CIT(A). THE LEARNED A.R. CONTENDED THAT THOUGH THE ISSUE WAS RAISED BEF ORE THE LEARNED CIT(A) VIDE GROUND NOS. 3 AND 4 BUT HE OMITTED TO DISPOSE OFF T HE SAME. IT(SS)A NO.97/MUM/2007 SHRI LOKESH JAIN. 3 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD IT IS NOTICED FROM FORM NO. 35 THAT THE ASSE SSEE RAISED GROUND NOS. 3 AND 4 CHALLENGING THE ISSUANCE OF NOTICE U/S.158BD SERVED ON THE ASSESSEE ON 24.9.2003, WHICH WERE NOT DISPOSED OFF BY THE LEARNED CIT(A). RATHER THERE IS NO DISCUSSION IN THE IMPUGNED ORDER ON THIS ASPECT OF THE MATTER. UN DER THESE CIRCUMSTANCES WE ARE CONSTRAINED TO GIVE ANY FINDING ON THE VALIDITY OF ISSUANCE OF NOTICE FOR WANT OF NECESSARY MATERIAL. WE, THEREFORE, SET ASIDE THE IM PUGNED ORDER AND RESTORE THE MATTER TO THE FILE OF THE LEARNED CIT(A) FOR DISPOS ING OFF GROUND NOS.3 AND 4 RAISED IN FORM NO.35 AS PER LAW AFTER ALLOWING A REASONABL E OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN VIEW OF OUR DECISION ON GROUND NOS . 3 AND 4 RAISED BEFORE US FOR NON-ADJUDICATION OF GROUND NOS. 3 AND 4 BY THE LEAR NED CIT(A), WE DO NOT INTENDED TO DISPOSE OFF OTHER GROUNDS ON MERITS. 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED ON THIS 11 TH DAY OF JUNE, 2010 . SD/- SD/- (R.S.PADVEKAR) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 11 TH \JUNE, 2010 . DEVDAS* COPY TO : 1. THE APPELLANT. 2. THE RESPONDENTS. 3. THE CIT CONCERNED 4. THE CIT(A)-XVIII, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.