ACIT, Central Circle - XVIII, Kolkata, Kolkata V. Shri Mahesh Kumar Nangalia, Kolkata

MA 129/KOL/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9407 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-10-2012
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: 2002-2003
• Appeal Filed On: 03-08-2012
• Court: TRIBUNAL
• Department Lawyers: DILIP KR RAKSHIT LD
• Assessee Lawyers: K M ROY FCA LD

Judgement Text

, C, , IN THE INCOME TAX APPELLATE TRIBUNAL C B ENCH : KOLKATA [ , ! 1#$, ] [BEFORE HONBLE SHRI PRAMOD KUMAR,, AM & HONBLE S HRI GEORGE MATHAN, JM %% $ & /M.A. NOS.129 & 130/KOL/2012 [IN I.T .A NOS. 78 & 79/KOL/2012] ASSESSMENT YEARS : 2002-03 & 2004-05 A.C.I.T, C.C XVIII, KOLKATA VS. MAHESH KUMAR NANGALIA PAN: AEYPN 4179F [ /APPLICANT ] [)#*/ RESPONDENT ] /APPLICANT BY : SHRI DILIP KR. RAKSHIT, LD. SR.DR )#* / RESPONDENT BY : SHRI K.M ROY, FCA, LD. AR $, - . /DATE OF HEARING : 05/10/2012 /0 - . /DATE OF PRONOUNCEMENT: 12/10/2012 1 /ORDER ! 1#$, SHRI GEORGE MATHAN, JUDICIAL MEMBER THESE ARE THE MISCELLANEOUS APPLICATIONS U/S. 254(2 ) OF THE ACT FILED BY THE REVENUE AGAINST THE ORDER OF THE TRIBUNAL IN ITA NOS. 78 & 79/KOL/2012 FOR THE ASSESSMENT YEARS 2002-03 & 2004 -05 DATED 20-04-2012. 2. SHRI DILIP KR. RAKSHIT, LEARNED. SR.DR REPRESEN TED ON BEHALF OF THE REVENUE AND SHRI K.M ROY, FCA, LEARNED AR REPRESENTED ON BEHALF OF THE ASSESSEE. 3. IT WAS SUBMITTED BY THE LEARNED SR.DR THAT IN PA RA 8 OF THE SAID ORDER DATED 20-04-2012 OF THE TRIBUNAL, THE TRIBUNAL HAD CATEGORICALLY GIV EN ITS FINDINGS THAT AS PER PROVISION OF SECTION 132(1) NO WARRANT OF AUTHORIZATION CAN BE I SSUED ON AN INANIMATE OBJECT. IT WAS THE SUBMISSION THAT CONSEQUENTLY PANCHANAMA DATED 17-04 -07, WHICH WAS THE PANCHANAMA IN RESPECT OF A WARRANT OF AUTHORIZATION DATED 30-03- 2007 DID NOT CONTAIN THE NAME OF THE ASSESSEE. IT WAS HELD THAT THE SEARCH STOOD CONCLUDED IN THE CASE OF THE ASSESSEE IN RESPECT OF A WARRANT OF AUTHORIZATION DATED 28-03-07 ON 29-03-07. THE LEAR NED DR DREW OUR ATTENTION TO THE WARRANT OF AUTHORIZATION DATED 30-03-07, WHEREIN NAME OF THE A SSESSEE AND HIS WIFES NAME HAVE BEEN SPECIFICALLY MENTIONED, WHICH IS THE AUTHORIZATION IN RESPECT OF LOCKER IN RESPECT OF WHICH THE PANCHANAMA HAS BEEN ISSUED ON 17-4-07. IT WAS THE SUBMISSION THAT AS WARRANT OF AUTHORIZATION U/S. 132(1) DID CONTAIN THE NAME OF THE ASSESSEE, S AID ORDER OF THE TRIBUNAL IN PARA 8 SUFFERS FROM [M.A. NOS. 129 & 130/KOL/12-C-GM 2 AN ERROR. IT WAS THE SUBMISSION THAT THE ORDER DA TED 20-04-2012 OF THE TRIBUNAL IN SO FAR AS THE SAID ERROR VITIATED THE FINDING OF THE TRIBUNALS ORDER DATED 20-04-2012 WAS LIABLE TO BE RECALLED. 4. IN REPLY, THE LEARNED AR FOR THE ASSESSEE SUBM ITTED THAT THE WARRANT OF AUTHORIZATION HAD NOT BEEN PART OF THE DETAILS PRODUCED AT THE TIME O F HEARING AND CONSEQUENTLY, THE SAME COULD NOT BE TAKEN INTO CONSIDERATION IN THE MISC. APPLIC ATIONS FILED BY THE REVENUE. IT WAS THE SUBMISSION THAT THE ORDER OF THE TRIBUNAL PER SE D ID NOT SHOW ANY MISTAKE APPARENT FROM THE RECORD. IT WAS THE SUBMISSION THAT THE MISC. APPLI CATIONS FILED BY THE REVENUE WERE LIABLE TO BE DISMISSED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE EX ISTENCE OF THE WARRANT OF AUTHORIZATION DATED 30-03-07 IS NOT DISPUTED. TRUE, THE WARRANT O F AUTHORIZATION DATED 30-3-07 WAS NOT BEFORE THE TRIBUNAL WHEN THE APPEALS WERE ORIGINALLY HEARD . HOWEVER, THE WARRANT OF AUTHORIZATION IS A GOVERNMENT DOCUMENT AND PART OF THE RECORD. IT IS ALSO NOT DISPUTED THAT THE NAME OF THE ASSESSEE APPEARS IN THE WARRANT OF AUTHORIZATION D ATED 30-03-07. ONCE, IT IS SHOWN THAT THE WARRANT OF AUTHORIZATION DATED 30-03-07 DID CONTAIN THE NAME OF THE ASSESSEE, THEN THE SPECIFIC FINDING OF THE TRIBUNAL THAT SUCH WARRANT DATED 30 -03-07 AND THE PANCHANAMA IN RESPECT OF THAT WARRANT CAN NOT BE TREATED AS PANCHANAMA IN RESPE CT OF THE ASSESSEE WOULD BE ERRONEOUS. 6. IN THE CIRCUMSTANCES, WE ARE OF THE VIEW THAT A MISTAKE HAS CREPT IN THE ORDER OF THE TRIBUNAL IN ITA NOS. 78 & 79/KOL/2012 DATED 20-04- 2012.. 7. IN THE CIRCUMSTANCES, THE ORDER DATED 20-04-201 2 OF THE TRIBUNAL IN ITA NOS. 78 & 79/KOL/2012 FOR THE ASSESSMENT YEARS 2002-03 & 2004 -05 STANDS RECALLED AND THE APPEALS ARE RESTORED. REGISTRY IS DIRECTED TO FIX THE CASES FOR HEARING IN REGULAR COURSE BY ISSUING THE NOTICES TO THE RESPECTIVE PARTIES. . 8. IN THE RESULT, THE MISC. APPLICATIONS FILED BY T HE REVENUE ARE ALLOWED 1 2 $ 3 45 ORDER PRONOUNCED IN THE OPEN COURT ON 12/10/2012. SD/- SD/- [ , ] [ ! 1#$ , ] [ PRAMOD KUMAR, ACCOUNTANT MEMBER ] [GEORGE MATHAN, JUDICIAL MEMBER ] . / DATED : 12/10/12 [M.A. NOS. 129 & 130/KOL/12-C-GM 3 1 - 66% 7%0/ COPY OF THE ORDER FORWARDED TO: 2 . #* /APPELLANT- SHRI MAHEST KUMAR NANGALIA 10 BELVEDR E ROAD, FLAT-6B, KOL- 27. 1. )#* / RESPONDENT : ACIT, CENTRAL CIRCLE-XVIII, PODDAR C OURT, 5 TH FL., KOL-1. 3. 61$/ CIT, 4. 61$ ()/ CIT(A), 5. >63 6$/ DR, KOLKATA BENCHES, KOLKATA *PP/SPS [)% 6/ TRUE COPY] 1$/ BY ORDER, /ASSTT REGISTRAR.