ACIT, Cir. 2(1), Jalgaon, Jalgaon V. Shri Manoharlal Bhuralal Sharma, Jalgaon

MA 128/PUN/2010

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 3907 (ITAT-PUNE)
• Duration Of Justice: 5 year(s) 8 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 26-06-2015
• Assessment Year: misc
• Appeal Filed On: 11-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DHEERAJ KUMAR JAIN
• Assessee Lawyers: SUNIL PATHAK
• Keywords: Rectification of order; Period of limitation
• Section: 143(3); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUN E , , !'!! # , $ % BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM '!'! !& / MA NO. 128/PN/2010 (ARISING OUT OF ITA NO. 360/PN/2004) BLOCK PERIOD: 01-04-1988 TO 09-01-1999 ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 2(1), JALGAON ....... / APPELLANT '& / V/S. SHRI MANOHARLAL BHURALAL SHARMA, SADHANA BHAWAN, SHARMA GEEN, BURHANPUR ROAD, A/P. & TAL.-RAVER, DISTT.-JALGAON-425508 PAN : ACHPS6918G / RESPONDENT ASSESSEE BY : SHRI SUNIL PATHAK REVENUE BY : SHRI DHEERAJ KUMAR JAIN / DATE OF HEARING : 08-01-2016 / DATE OF PRONOUNCEMENT : 13-01-2016 ( / ORDER PER VIKAS AWASTHY, JM : THE MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE REVENUE U/S. 254(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) SEEKING RECTIFICATION OF THE ORDER OF TRIBUNAL DATED 30-10-2009. 2 MA NO. 128/PN/2010 2. THE ASSESSEE HAD FILED APPEAL AGAINST THE ORDER OF C OMMISSIONER OF INCOME TAX (APPEALS)-I, AURANGABAD DATED 30-01-2004 PASSED U/S. 158 BC R.W.S. 143(3) OF THE ACT. THE TRIBUNAL VIDE ORDER DA TED 30-10-2009 ALLOWED THE APPEAL OF THE ASSESSEE WITH THE FO LLOWING OBSERVATIONS: 10. FINALLY PLACING RELIANCE ON PLASTICA ENTERPRIS ES - 23 DTR 333 (BOM), WHEREIN A SUBSEQUENT PANCHANAMA WAS PREPARED TO INSPECT THE SEAL WHETHER PLACED IN ORDER, HOWEVER FOUND INTACT; THAT PANCHANAMA WAS NOT CONSIDERED BY THE HON'BLE COURT FOR THE PUR POSE OF CALCULATION OF PERIOD OF LIMITATION, WE HEREBY HOLD THAT THE SEARC H ACTION HAD COMPLETED/CONCLUDED ON 11/1/99 WHEN THE AUTHORIZED OFFICER HAS MADE A REMARK THAT THE SEARCH ACTION HAD CONCLUDED. THE RE WAS NO LOGIC OR RATIONALE TO EXTEND THE PROHIBITORY ORDER FOR A LOC KER WHICH HAD NO CONTENTS AND NOTHING WAS FOUND IN THE SAID LOCKER. THE REVENUE HAS NOT DEMONSTRATED THE NECESSITY OR RATIONALE OF FURTHER ORDER U/S.132(3) OF IT. ACT, THEREFORE, THOSE SUBSEQUENT ACTIONS MUST NOT B E TAKEN INTO ACCOUNT FOR THE PURPOSE OF CALCULATION OF THE PERIOD OF COM PLETION OF ASSESSMENT. IN THE LIGHT OF THE DETAILED DISCUSSION AND THE CAS E LAWS CITED WE HEREBY UPHOLD THE GRIEVANCE OF THE ASSESSEE AND ALLOW THE GROUND. WITH THE RESULT THE ASSESSMENT IN QUESTION IS QUASHED. 3. SHRI DHEERAJ KUMAR JAIN REPRESENTING THE DEPARTMENT SUBMITTED THAT THE TRIBUNAL HAS NOT FULLY APPRECIATED THE FACTS OF T HE CASE. THE TRIBUNAL IN THE ORDER HAS HELD THAT THE LOCKER WAS FIRST O PERATED ON 09-01-1999 AND THE SAME WAS FOUND EMPTY. THEREFORE, TH ERE WAS NO JUSTIFICATION IN PLACING THE PROHIBITORY ORDER U/S. 132(3) OF T HE ACT. HOWEVER, THE FACT IS THAT THE LOCKER KEY OF LOCKER NO. 21, CENTRAL BANK OF INDIA, RAVER BRANCH, DISTT.-JALGAON WAS NOT AVAILABLE, THE AUTHORIZED OFFICER WAS COMPELLED TO PLACE THE PROHIBITORY ORDER IN COMP LIANCE TO WARRANT OF AUTHORIZATION DATED 09-01-1999. THE LOCKER W AS LATER BROKE OPEN ON 08-02-1999 IN THE PRESENCE OF THE ASSESSEE AN D OTHER 3 MA NO. 128/PN/2010 WITNESSES. HOWEVER, NOTHING WAS FOUND IN THE LOCKER. TH E PANCHANAMA WAS ACCORDINGLY PREPARED ON 08-02-1999 AN D THE SAME WAS PLACED ON RECORD BEFORE THE TRIBUNAL. HOWEVER, THE S AID PANCHANAMA WAS NOT TAKEN INTO CONSIDERATION WHILE PASSING THE ORDER. THE TRIBUNAL HAS ALLOWED THE APPEAL OF THE ASSESSEE ON THE GROUND THAT THE LAST PANCHANAMA WAS DRAWN ON 11-01-1999 AND ACCO RDINGLY THE SEARCH ACTION HAD CONCLUDED ON 11-01-1999. THE APPEA L OF THE ASSESSEE WAS ALLOWED FOR TECHNICAL REASONS. THE LD. DR ALSO PLACED ON RECORD A COPY OF THE STATEMENT OF FACTS FILED BY THE AS SESSEE BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) TO SHOW THAT THE ASS ESSEE HAD ADMITTED THE FACT THAT THE LOCKER OF THE CENTRAL BANK OF INDIA, RAVER BRANCH, JALGAON WAS OPENED ON 08-02-1999. THE LD. DR PR AYED FOR RECALLING THE ORDER OF TRIBUNAL DATED 30-10-2009 AS THER E WAS MISTAKE APPARENT FROM THE RECORD IN THE ORDER OF TRIBUNAL. 4. ON THE OTHER HAND SHRI SUNIL PATHAK APPEARING ON BEH ALF OF THE ASSESSEE SUBMITTED THAT THE ORDER OF TRIBUNAL IS JUSTIFIED AND WELL REASONED. THERE IS NO ERROR IN THE ORDER DATED 30-10- 2009 PASSED BY THE TRIBUNAL. THE LD. AR SUBMITTED THAT THE LAST PANCHANA MA WAS DRAWN ON 11-01-1999 AND ACCORDINGLY SEARCH HAD CONCLU DED ON THE SAME DAY. THE TRIBUNAL AFTER CONSIDERING ALL THE PANCHANA MAS PLACED ON RECORD BY THE DEPARTMENT HAD GIVEN A CATEGORIC FINDIN G THAT THE DATE OF LOCKER OPENING ON 08-02-1999 AND THE PANCHANAMA DRA WN ON THE SAID DATE IS ONLY AN ATTEMPT TO EXTEND THE TIME OF SEAR CH. ONCE, NOTHING WAS FOUND IN THE LOCKER WHEN IT WAS OPENED ON 11 -01-1999 THERE WAS NO POINT IN PASSING THE PROHIBITORY ORDER AN D AGAIN OPENING THE LOCKER ON 08-02-1999. THE LD. AR FURTHER SUBMITTED T HAT THE 4 MA NO. 128/PN/2010 PANCHANAMA DATED 11-01-1999 DOES NOT MENTION THAT TH E KEY OF THE LOCKER IS NOT AVAILABLE. THE REVENUE IS TRYING TO IMPROVE T HE CASE BY STATING THAT LOCKER WAS OPENED FOR THE FIRST TIME ON 08-0 2-1999. IN MISCELLANEOUS APPLICATION FILED U/S. 254(2), ONLY ERROR APPARENT FROM RECORDS CAN BE RECTIFIED. FRESH DOCUMENTS CANNOT BE C ONSIDERED BY THE TRIBUNAL AT THIS STAGE. IN SUPPORT OF HIS SUBMISSIONS THE LD. AR PLACED RELIANCE ON THE DECISION OF HON'BLE CALCUTTA HIGH COURT IN T HE CASE OF SHEW PAPER EXCHANGE VS. INCOME TAX OFFICER REPORTED AS 93 ITR 186 (CAL.) AND COMMISSIONER OF INCOME TAX VS. BALLABH PRASAD AGAR WALLA REPORTED AS 233 ITR 354. THE LD. AR FINALLY SUBMITTED THAT THE TRIBUN AL IN PARAS 6, 8 AND 10 OF THE ORDER HAS ALREADY DEALT WITH THE CONTENTIONS OF THE REVENUE AND AFTER CONSIDERING ALL THE DOCUMENTS ON RECORD INCLUDING PANCHANAMA DATED 08-02-1999 HAS ACCEPTED THE APPEAL OF THE ASSESSEE. THE LD. AR PRAYED FOR DISMISSING THE MISCELLAN EOUS APPLICATION SEEKING RECTIFICATION OF ORDER FILED BY THE REVENUE. 5. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESEN TATIVES OF RIVAL SIDES. THE MISCELLANEOUS APPLICATION HAS BEEN FILED BY T HE DEPARTMENT ONLY ON THE GROUND THAT THE TRIBUNAL HAS FA ILED TO CONSIDER THE FACT THAT THE LOCKER NO. 21 AT CENTRAL BANK OF INDIA, RAVER BRANCH WAS OPENED ON 08-02-1999 AND THIS FACT HAS NOT BEEN C ONSIDERED BY THE TRIBUNAL WHILE PASSING ORDER DATED 30-10-2009. THE CONTENTION OF THE DEPARTMENT IS THAT THE TRIBUNAL HAS ALLOWED THE APPE AL OF THE ASSESSEE ONLY ON TECHNICAL GROUND WITHOUT CONSIDERING TH E COMPLETE FACTS. AFTER PERUSAL OF THE ORDER OF THE TRIBUNAL AND THE DOCUMENTS ON RECORD WE FIND THAT THERE IS NO ERROR AS ALLEGED BY THE DEPARTMENT IN THE MISCELLANEOUS APPLICATION. THE TRIBUNAL AT THE TIME OF PASSING OF 5 MA NO. 128/PN/2010 THE ORDER CONSIDERED ALL THE DOCUMENTS THAT HAVE BEEN PLACED ON RECORD BY THE DEPARTMENT. A COPY OF PANCHANAMA FILED BY THE D EPARTMENT AT PAGE 7 OF THE PAPER BOOK CLEARLY SHOWS THAT ON 11-01- 1999 THE LOCKER NO. 21, CENTRAL BANK OF INDIA, RAVER BRANCH WAS SEARCHED AND THE RECOVERY MEMO SHOWS THAT NOTHING WAS RECOVERED. THE PRELIMINARY SEARCH REPORT U/S. 132 OF THE ACT DATED 11-01-1999 AT PAGE 8 OF THE PAPER BOOK SHOWS THAT IN THE REMARKS COLUMN NO. 9 THE FOLLOWING OBSERVATIONS HAVE BEEN MADE BY THE OFFICER-IN-CHARGE: THE LOCKER NO. 21 OF CENTRAL BANK OF INDIA RAVER, OF SHRI MANOHARLAL B. SHARMA OF SMT. CHAMABRI M. SHARMA, IS SEALED. THE ACTION IS TEMPORARILY CONCLUDED. 6. NOTHING HAS BEEN MENTIONED EITHER IN THE PANCHANAMA OR AFORESAID REPORT THAT THE KEY OF THE LOCKER WAS NOT MADE AVAILABLE OR THE LOCKER WAS BROKE OPEN. THE THEORY OF LOST KEY OF LOCK ER HAS BEEN FIRST TIME PLEADED BY THE DEPARTMENT IN THE PRESENT PROCEEDI NGS. THE TRIBUNAL IN PARAS 6 AND 8 OF THE ORDER, SOUGHT TO BE REC TIFIED HAS DISCUSSED THIS ISSUE IN DETAIL. THE TRIBUNAL HAS ALSO CONS IDERED THE SUBSEQUENT PANCHANAMA AND PRELIMINARY REPORT DATED 08- 02-1999. THE TRIBUNAL AFTER PLACING RELIANCE ON THE DECISION OF HON'B LE BOMBAY HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. P LASTICA ENTERPRISES REPORTED AS 23 DTR 333 (BOM) HAS QUASHED THE ASSESSMENT. 7. WE ARE OF THE CONSIDERED VIEW THAT THE PRESENT MISCE LLANEOUS APPLICATION IS AN ATTEMPT BY THE DEPARTMENT TO SEEK REV IEW OF THE ORDER EARLIER PASSED BY THE TRIBUNAL, WHICH IS NOT PERMISSIBLE UND ER THE 6 MA NO. 128/PN/2010 PROVISIONS OF THE INCOME TAX ACT. WE DO NOT FIND ANY MIST AKE, MUCH LESS THE APPARENT MISTAKE AS ALLEGED BY THE DEPARTMENT IN THE ORDER OF TRIBUNAL DATED 30-10-2009. THE MISCELLANEOUS APPLICATION FILE D BY THE REVENUE IS ACCORDINGLY DISMISSED BEING DEVOID OF ANY MERIT. ORDER PRONOUNCED ON WEDNESDAY, THE 13 TH DAY OF JANUARY, 2016. SD/- SD/- ( . . / R.K. PANDA) ( ! ' / VIKAS AWASTHY) #' / ACCOUNTANT MEMBER $ % #' / JUDICIAL MEMBER / PUNE; &# / DATED : 13 TH JANUARY, 2016 RK ()*$+,'-'.+ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ' () / THE CIT(A)-I, AURANGABAD 4. ' / THE CIT-II, NASHIK 5. !*+ %%,- , ,- , . /01 , / DR, ITAT, A BENCH, PUNE. 6. + 2 34 / GUARD FILE. // ! % // TRUE COPY// #5 / BY ORDER, %6 ,1 / PRIVATE SECRETARY, ,- , / ITAT, PUNE