M/S SHIVANS STEEL PVT.LTD.,KOLKATA V. DEPUTY COMMISSIONSER OF INCOME TA, CENTRAL CIRCLE, JAMSHEDPUR, JAMSHEDPUR

CO 3/RAN/2022

AI Insights

The case involves appeals by the revenue against the orders of the CIT(A), Patna, which had provided relief to the assessee, M/s Shivans Steel Pvt. Ltd., for the assessment years 2007-2008 and 2010-2011. The revenue challenged the CIT(A)'s decision on grounds of violation of Rule 46A of the Income Tax Rules, while the assessee's cross objections argued that the assessments were not based on any seized or incriminating material. The Tribunal noted that no incriminating material was found during the search and upheld the CIT(A)'s decision, dismissing the revenue's appeals and allowing the assessee's cross objections.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 780092 (ITAT-RANCHI)
• Duration Of Justice: 3 year(s) 6 month(s) 5 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 06-10-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 01-04-2022
• Other Referred Cases: Abhishar Buildwell Pvt. Ltd. vs. 459 ITR 212 (SC)
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Block assessment
• Section: 132

Judgement Text

" आयकर अपीलीय अधिकरण, र ाँची न्य यपीठ, र ाँची IN THE INCOME TAX APPELLATE TRIBUNAL RANCHI BENCH, RANCHI BEFORE SHRI GEORGE MATHAN, JM & SHRI RATNESH NANDAN SAHAY, AM IT(SS)A Nos.21 & 22/RAN/2021 (निि ारण वर्ा / Assessment Years :2007-2008 & 2010-2011) DCIT, Central Circle-1, Jamshedpur Vs. M/s Shivans Steel Pvt. Ltd., 149, Cotton Steel, Kolkata-700007 स्थायी लेखा सं./PAN No. : AAJCS 9663 D (अपीलार्थी /Appellant) .. (प्रत्यर्थी / Respondent) AND Cross Objection Nos.03 & 04/RAN/2022 (Arising out of IT(SS)A Nos.21&22/Ran/2021) (निि ारण वर्ा / Assessment Years :2007-2008 & 2010-2011) M/s Shivans Steel Pvt. Ltd., 149, Cotton Steel, Kolkata-700007 Vs. DCIT, Central Circle-1, Jamshedpur स्थायी लेखा सं./PAN No. : AAJCS 9663 D (अपीलार्थी /Appellant) .. (प्रत्यर्थी / Respondent) राजस्व की ओर से /Revenue by : None निर्ाारिती की ओर से /Assessee by : None सुनवाई की तारीख / Date of Hearing : 06/10/2025 घोषणा की तारीख/Date of Pronouncement : 06/10/2025 आदेश / O R D E R Per Bench : The revenue has filed two appeals being IT(SS)A Nos.21&22/Ran/2021 against the separate orders passed by the ld. CIT(A), Patna-3, both dated 13.09.2021, for the assessment years 2007- 2008 & 2010-2011. The assessee has also filed cross objections being CO Nos.03&04/Ran/2022 arising out of the above appeals of the revenue. 2. The ld. CIT-DR also sought adjournment in these cases on the following grounds :- Printed from counselvise.com IT(SS)A Nos.21&22/Ran/21 CO Nos.03&04/Ran/2022 2 Printed from counselvise.com IT(SS)A Nos.21&22/Ran/21 CO Nos.03&04/Ran/2022 3 3. The number of cases posted during the week is nearly 250, out of the same, on daily basis, nearly in 72 to 75% of the cases, adjournments are being sought. As the Bench was constituted and the same was also Printed from counselvise.com IT(SS)A Nos.21&22/Ran/21 CO Nos.03&04/Ran/2022 4 intimated much in advance and the adjournment has been sought in the last minute, therefore, the adjournment applications are being rejected. 4. It may also be worthwhile to mention here that another reason given by the ld. CIT-Departmental Representative for adjournment is that in some of the appeals, orders have been passed by the office of the impugned CIT- DR personally. Here, it is to be mentioned that in respect of the orders of the ld. CIT(A), which have been challenged by the revenue, it can be said that it would be difficult for the ld. CIT-Departmental Representative to defend such orders, in so far as he would be arguing against his own orders. But in such cases, where the orders have been passed against the assessee and the assessee is in appeal, we find no reason as to why the ld. CIT-DR would not be able to defend his own orders. In any case orders have been issued against the assessee. When this was put to the ld. CIT- DR, it was a submission that should the Tribunal pass an order reversing the order of ld. CIT(A), he could be questioned under administrative provisions. This does not stand to be a reason, in so far as the appeal provisions have been provided by the statute. It is human to err. If there is no order passed by the Assessing Officer, then obviously post of CIT(A) is required and if there is no order of ld. CIT(A), there is no requirement of the Tribunal so on and so forth. Various stages of appeals are provided so that necessary proceedings are available for both the assessee and the revenue to defend their stands. Decisions taken by the appellate authority as a judicial or quasi judicial forums, are not subject to administrative reviews. Appeal provisions are provided by the statute. It would also be Printed from counselvise.com IT(SS)A Nos.21&22/Ran/21 CO Nos.03&04/Ran/2022 5 worthwhile to mention here that repeatedly the courts have been holding that the ld. CIT(A) are quasi judicial authorities and no administrative pressure can be put on them to decide any issues in any specific manner. We are of the view that such apprehension of the ld. CIT-DR is unfounded. Consequently, the submission of the ld. CIT-Departmental Representative was that he is recusing from the arguments. His plea is accepted. The matters are disposed off on merits on the basis of records and documents available before the Tribunal. 5. The ld. AR on behalf of the assessee has filed an adjournment application for both the years under consideration mentioning that he is busy at ITAT Mumbai Benches. The reasons taken for adjournment of the appeals on behalf of the assessee, in our opinion, are not plausible, so also not substantiated, insofar as alternate arrangement should have been made for arguments of these appeals. Seeking time on the above reasons do not make any reason for accepting the adjournment application. Accordingly, the adjournment application filed on behalf of the assessee is rejected and we proceed to dispose off the appeals of the revenue along with the cross objections filed by the assessee after considering the materials available on record, ex-parte qua the revenue and assessee. 6. We have perused the assessment order as well as the order of the ld. CIT(A). A perusal of the facts in the present case shows that in the cross objections filed by the assessee, the assessee has basically raised the issue that the assessments for both the years under consideration are not based on any seized or incriminating material. In the revenue’s appeal, the Printed from counselvise.com IT(SS)A Nos.21&22/Ran/21 CO Nos.03&04/Ran/2022 6 issue raised is that the addition has been made on the basis of statement recorded and that the ld. CIT(A) has given relief in violation of Rule 46A of the I.T.Rules. A perusal of the assessment order shows that there was a search on the premises of one Shri Madhu Korah and his associates on 31.10.2009. Further survey operations u/s.133A of the Act were also carried out in the business premises of the assessee company. It is noticed that the assessment order has been passed u/s.153C r.w.s.143(3) of the Act. A perusal of the facts stated in page 3 of the assessment order shows that in regard to the issue of cash credit of Rs.1,55,55,950/-, the primary evidence is a statement recorded u/s.131 of the Act dated 25.12.2009. Here, it must be reiterated that the search took place on 31.10.2009. The assessment in the present case has been framed u/s.153C r.w.s.143(3) of the Act. Admittedly, in the course of search, no incriminating material in regard to the statement recorded u/s.131 of the Act dated 25.12.2009 is available. The said statement which has been extracted by the ld. AO from pages 3 to 6 in his assessment order, also do not show any incriminating material being referred to or considered. 7. Coming to the issue of addition of Rs.44,88,713/-, a perusal of the para 4 of the assessment order at page 6, shows that the survey u/s.133A of the Act was conducted on 07.09.2007. Again, this is much before the search and no evidence has been found in the course of search to support the evidence found in the course of survey. A perusal of the order of the ld. CIT(A) shows that the ld. CIT(A) has deleted the addition on the ground that no cross-examination of the witnesses, which were relied upon by the AO Printed from counselvise.com IT(SS)A Nos.21&22/Ran/21 CO Nos.03&04/Ran/2022 7 while making the addition, has been provided to the assessee. This is in regard to the addition of Rs.1,55,55,950/- and in regard to the addition of Rs.44,38,713/-, the AO has referred to in the remand report that there is no comments on the issue as it is discussed in detail in the assessment order. The fact that a remand report has been called for from the AO and the ld. CIT(A) has recognized that Rule 46A of IT Rules required the evidence produced to be examined by the AO and such remand report submitted after examination by the AO, thus, the ground raised by the revenue in respect of violation of Rule 46A of IT Rules, no more survives. 8. In regard to the other grounds, as it is noticed that no incriminating material has been found in the course of search or has been used by the AO in the course of assessment done u/s.153C r.w.s.143(3) of the Act, therefore, in view of the principle laid down by the Hon’ble Supreme Court in the case of Abhishar Buildwell Pvt. Ltd., reported in 459 ITR 212 (SC), more specifically, para 14, the assessment framed u/s.153C r.w.s.143(3) of the Act in both the cases under consideration is unsustainable. The relevant findings of the Hon’ble Supreme Court reads as follows :- 14. In view of the above and for the reasons stated above, it is concluded as under: i) that in case of search under Section 132 or requisition under Section 132A, the AO assumes the jurisdiction for block assessment under section 153A; ii) all pending assessments/reassessments shall stand abated; iii) in case any incriminating material is found/unearthed, even, in case of unabated/completed assessments, the AO would assume the jurisdiction to assess or reassess the ‘total income’ taking into consideration the incriminating material unearthed during the search and the other material available with the AO including the income declared in the returns; and Printed from counselvise.com IT(SS)A Nos.21&22/Ran/21 CO Nos.03&04/Ran/2022 8 iv) in case no incriminating material is unearthed during the search, the AO cannot assess or reassess taking into consideration the other material in respect of completed assessments/unabated assessments. Meaning thereby, in respect of completed/unabated assessments, no addition can be made by the AO in absence of any incriminating material found during the course of search under Section 132 or requisition under Section 132A of the Act, 1961. However, the completed/unabated assessments can be re- opened by the AO in exercise of powers under Sections 147/148 of the Act, subject to fulfilment of the conditions as envisaged/mentioned under sections 147/148 of the Act and those powers are saved. The question involved in the present set of appeals and review petition is answered accordingly in terms of the above and the appeals and review petition preferred by the Revenue are hereby dismissed. No costs. 9. In view of the above, we are of the opinion that the assessment orders in the present case under consideration are unsustainable and consequently we quash the same. Thus, the appeals of the revenue are dismissed and cross objections of the assessee are allowed. 10. In the result, both appeals of the revenue are dismissed and cross objections of the assessee are allowed. Order dictated and pronounced in the open court on 06/10/2025. Sd/- (RATNESH NANDAN SAHAY) Sd/- (GEORGE MATHAN) लेख सदस्य / ACCOUNTANT MEMBER न्य नयक सदस्य / JUDICIAL MEMBER र ाँची Ranchi; दिनाांक Dated 06/10/2025 Prakash Kumar Mishra, Sr.P.S. आदेश की प्रनिललपप अग्रेपर्ि/Copy of the Order forwarded to : आदेश िुस र/ BY ORDER, (Senior Private Secretary) आयकर अपीलीय अधिकरण, र ाँची / ITAT, Ranchi 1. अपीलार्थी / The Appellant- . 2. प्रत्यर्थी / The Respondent- 3. आयकि आयुक्त(अपील) / The CIT(A), 4. आयकर आयुक्त / CIT 5. निभागीय प्रनतनिनर्, आयकि अपीलीय अनर्किण, र ाँची / DR, ITAT, Ranchi 6. गार्ड फाईल / Guard file. सत्यापपत प्रतत //True Copy// Printed from counselvise.com "