M/s. Mount Echo Buildwell Pvt. Ltd., Noida V. ACIT, New Delhi

MA 109/DEL/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 6519 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-04-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2006-2007
• Appeal Filed On: 05-03-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S B SINGH
• Assessee Lawyers: DR RAKESH GUPTA
• Section: 153A; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH : FRIDAY NEW DELHI ] BEFORE SH.SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER A N D SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER MISC. APP. NO. 108/DEL/2020 [ IN ITA NO.637/DEL/2016 ] ASSESSMENT YEAR : 2005-06 PARAMOUNT PROBUILD PVT. LTD. 208, SIKKA MANSION, LSC, SAVITA VIHAR, NEW DELHI PAN : AADCP5228P VS. DCIT CENTRAL CIRCLE 18, NEW DELHI. (APPLICANT) (RESPONDENT) A N D MISC. APP. NO. 109/DEL/2020 [ IN ITA NO.1397/DEL/2016 ] AND [IN C.O. NO. 175/DEL/2016] ASSESSMENT YEAR : 2006-07 MOUNT ECHO BUILDWELL PVT. LTD., H-123, SECTOR-63 NOIDA PAN : AAECM6235C VS ACIT CENTRAL CIRCLE 27, NEW DELHI. (APPLICANT) (RESPONDENT) APPLICANTS BY : DR. RAKESH GUPTA, ADV.; & SHRI SOMIL AGGARWAL, ADV.; RESPONDENT BY : SHRI S. B. SINGH, SR. D.R.; DATE OF HEARING: 09/04/2021 DATE OF PRONOUNCEMENT: 09/04/2021 O R D E R PER PRASHANT MAHARISHI, AM : 01 THESE ARE THE TWO MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IN A COMMON ORDER PASSED BY ITAT INVOLVING COMMON MISTAKE APPARENT 2 | PA GE 2 FROM RECORD AND THEREFORE PARTIES ARGUED THEM TOGETHER AND WE DISPOSED THEM BY THIS COMMON ORDER. 02 MISCELLANEOUS APPLICATION NO. 108 (DEL) OF 2020 IS FILED BY PARAMOUNT PROBUILD PVT. LTD. [THE ASSESSEE] IN I.T. APPEAL NO. 637 (DEL) OF 2016 FOR ASSESSMENT YEAR 2005-06 PASSED BY THE CO-ORDINATE BENCH ON 5.02.2020. 03 THE MISC. APPLICATION STATES THAT VIDE PARA NOS. 18-21 & 27 ON PAGE NOS. 10-11 THE CO-ORDINATE BENCH DECIDED THE ISSUE STATING THAT THE APPEAL OF THE ASSESSEE AS WELL AS OF THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. HOWEVER, GROUND NOS. 1 & 4 IN THE APPEAL AS WELL AS APPLICATION UNDER RULE 27 OF THE ASSESSEE FILED ON 13 TH JUNE, 2019 WERE ARGUED AND IT WAS SUBMITTED THAT ORIGINAL ASSESSMENT STOOD COMPLETED ON THE DATE OF SEARCH I.E. 11 TH MARCH, 2011, DESPITE NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH ON PLAIN READING OF THE ASSESSMENT ORDER, THE LD. ASSESSING OFFICER HAS MADE THE ADDITION. IT FURTHER SAYS THAT IN CONCLUDED ASSESSMENTS WHERE NO INCRIMINATING MATERIAL IS FOUND, AS A RESULT OF SEARCH, NO ADDITION COULD BE MADE IN ASSESSMENT UNDER SECTION 153A AS HELD BY THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA (2016) 380 ITR 573 (DEL) AND PR. CIT VS. MEETA GUTGUTIA (2017) 395 ITR 526 (DEL). IT FURTHER SAYS THAT THE SPECIFIC GROUND WAS TAKEN BEFORE THE LD. CIT (APPEALS) WHICH IS EVIDENT AT PAGE NO. 2 OF THE ORDER OF THE LD. CIT (APPEALS). IT WAS BROUGHT TO THE ATTENTION OF THE BENCH THAT LD. CIT (APPEALS) HAS GIVEN A CATEGORICAL FINDING THAT WHILE MAKING AN ADDITION THE LD. ASSESSING OFFICER HAS NOT RELIED ON ANY INCRIMINATING MATERIAL FOUND IN THE SEARCH WITH RESPECT TO THE IMPUGNED ADDITION. THEREFORE, THERE IS AN ERROR IN THE ORDER OF THE ITAT IN DECIDING THE ISSUE ON THE MERITS IGNORING THE BINDING DECISIONS OF THE HONBLE DELHI HIGH COURT. THEREFORE, IT WAS STATED THAT THE ORDER IN THE IMPUGNED APPEAL MAY BE RECALLED AS THERE IS AN ERROR APPARENT FROM THE RECORD IN IGNORING 3 | PA GE 3 APPLICATION UNDER RULE 27 AS WELL AS THE BINDING DECISION OF THE HONBLE HIGH COURT. 04 THE LD. AR AT THE TIME OF HEARING REITERATED THE FACTS STATED IN THE MISCELLANEOUS APPLICATION. 05 THE LD. DR VEHEMENTLY OBJECTED THE MISCELLANEOUS APPLICATION AND STATED THAT WHEN THE CO-ORDINATE BENCH HAS DECIDED THE ISSUE ON THE MERITS OF THE CASE THERE IS NO MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE BENCH. 06 WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND FIND THAT DATE OF SEARCH AS AVAILABLE FROM THE RECORD IS 11 TH MARCH, 2011AND THE IMPUGNED ASSESSMENT ORDER IS 2005-06. NATURALLY, THE ASSESSMENT FOR THE IMPUGNED YEAR IS A CONCLUDED ASSESSMENT AND CAN BE DISTURBED ONLY IF ANY INCRIMINATING MATERIAL IS FOUND DURING THE COURSE OF SEARCH WITH RESPECT TO THE IMPUGNED ASSESSMENT YEAR. SUCH IS THE MANDATE OF THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA (SUPRA) AND PR. CIT VS. MEETA GUTGUTIA (SUPRA). IN VIEW OF THIS DECISION THE DECISION OF THE CO-ORDINATE BENCH ON THE MERITS OF THE ADDITION WHERE THE LD. CIT (APPEALS) HAS CATEGORICALLY STATED THAT LD. ASSESSING OFFICER HAS NOT RELIED UPON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH FOR THE MAKING OF ADDITION SUFFERS FROM MISTAKE APPARENT FROM RECORD. THE APPLICATION OF THE ASSESSEE UNDER RULE 27 DATED 13 TH JUNE, 2019 WAS ALSO ON THIS ASPECT. THEREFORE, IGNORING THE BINDING DECISIONS OF THE HONBLE JURISDICTIONAL HIGH COURT MAKES THE ORDER OF THE CO-ORDINATE BENCH ERRONEOUS. ACCORDINGLY, THE ORDER OF THE CO-ORDINATE BENCH IN THE CASE OF THE ASSESSEE FOR ASSESSMENT YEAR 2005-06 IN I. T. APPEAL NO. 637 (DEL) OF 2016 IS RECALLED. THE REGISTRY IS DIRECTED TO FIX THE IMPUGNED APPEAL IN DUE COURSE. THUS, MISC. APPLICATION NO. 108 (DEL) OF 2020 IS ALLOWED. 4 | PA GE 4 07 MISCELLANEOUS APPLICATION NO. 109 (DEL) OF 2020 IS FILED BY MOUNT ECHO BUILDWELL PVT. LTD., THE ASSESSEE IN I.T. APPEAL NO. 1397(DEL) OF 2016 AND C.O. NO. 175 (DEL) OF 2016 FOR ASSESSMENT YEAR 2006-07 WITH IDENTICAL FACTS. 08 FOR THE REASONS STATED IN MISC. APPLICATION NO. 108 (DEL) OF 2020, WE FIND THAT THE ORDER OF THE CO-ORDINATE BENCH HAS A SIMILAR MISTAKE APPARENT FROM RECORD AND, THEREFORE, I. T. APPEAL NO. 1397 (DEL) OF 2016 AND CROSS OBJECTION NO. 175 (DEL) OF 2016 OF THE ASSESSEE ARE RECALLED. THE REGISTRY IS DIRECTED TO FIX THE APPEAL OF THE ASSESSEE AND CROSS OBJECTION IN DUE COURSE. ACCORDINGLY, MISC. APPLICATION NO. 109 (DEL) OF 2020 IS ALLOWED. 09 IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATIONS ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON : 09.04.2021. SD/- SD/- (SUDHANSHU SRIVASTAVA) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE : 09.04.2021. *MEHTA* COPY FORWARDED TO: 1. APPLICANTS; 2. RESPONDENT 3. CIT 4. CIT (APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 5 | PA GE 5 DATE OF DICTATION 09.04.2021 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 09.04.2021 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 09.04.2021 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/ PS 09.04.2021 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 09.04.2021 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS 09.04.2021 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 09.04.2021 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 09.04.2021 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER 6 | PA GE 6 7 | PA GE 7