J.N INVESTMENT & TRADING COmpany PRIVATE LIMITED , MUMBAI V. PRINCIPAL COMMISSIONER OF INCOME TAX ( C ) 2 , MUMBAI

MA 176/MUM/2018

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 2677 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2011-2012
• Appeal Filed On: 12-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHANTESHWAR SWAMI
• Assessee Lawyers: A K GHOSH
• Keywords: Revision of order; Search and seizure; Reassessment proceedings
• Section: 143(3); 153A; 263

Judgement Text

P A G E | 1 M.A. NO. 176/MUM/2018 A.Y. 2011 - 12 (ARISING OUT OF ITA NO. 2373/MUM/2017) J.N. INVESTMENT & TRADING CO. PVT. LTD. VS. PR. CIT(C) - 2. IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, M UMBAI BEFORE SHRI G.S.PANNU , AM AND SHRI RAVISH SOOD, JM M.A. NO.176 /MUM/2018 (ARISING OUT OF ITA NO. 2373/MUM/2017 ) ( / ASSESSMENT YEAR:2011 - 12 ) J.N. INVESTMENT & TRADING CO. PVT. LTD. , A - 9, ENERCON TOWER, VEERA DESAI ROAD, VEERA INDUSTRIAL ESTATE, ANDHERI (E), MUMBAI - 400 053 / VS. PRINCIPAL CIT(C) - 2 MUMBAI. ./ ./ PAN NO. AAACJ2646L ( / APPLICANT) : ( / RESPONDENT ) / APPLICANT BY : SHRI A.K. GHOSH , A.R / RESPONDENT BY : SHRI SHANTESHWAR SWAMI , SR.D.R / DATE OF HEARING : 31 .08.2018 / DATE OF PRONOUNCEMENT : 1 0 . 10 .2018 / O R D E R PER RAVISH SOOD, JUDICIAL MEMBER: THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE UNDER SEC. 254(2) OF THE INCOME - TAX ACT, 1961 (FOR SHORT ACT) ARISES FROM THE ORDER PASSED BY THE TRIBUNAL UNDER SEC. 254(1) OF THE ACT IN ITA NO. 2373/MUM/2017, DATED 27.09.2017. THE LD. AUTHORIZED REPRESENTATIVE (FOR P A G E | 2 M.A. NO. 176/MUM/2018 A.Y. 2011 - 12 (ARISING OUT OF ITA NO. 2373/MUM/2017) J.N. INVESTMENT & TRADING CO. PVT. LTD. VS. PR. CIT(C) - 2. SHORT A.R) OF THE ASSESSEE , AT THE VERY OUTSET OF THE HEARING OF TH E APPLICATION SUBMITTED THAT A MISTAKE HAD CREPT IN PAGE 53 - 54 - PARA 49 OF THE TRIBUNAL, WHERE IN IT WAS OBSERVED AS UNDER: 49. WE FIND THAT THE LD. D.R VIDE HER CONSOLIDATE WRITTEN SUBMISSION, DATED 28.07.2017, PLACED ON OUR RECORD, HAD STATED AS UNDER : T HEREFORE, IT IS FACT THAT IN NONE OF THE CASES ORDER U/S 143(3) WAS PASSED ON OR BEFORE 14.03.2013 (DT. O F SEARCH) FOR THE ASSESSMENT YEARS INVOLVED. APART FROM M/S J.N. INVESTMENT, IN NONE OF THE CASES NOTICE U/S 143(2) WAS ISSUED, THEREFORE, IN NONE OF THE 3 CASE AT S. NO. 1, 2 & 3 OF THE CHART ABOVE, ASSESSMENT PROCEEDINGS WERE PENDING ON THE DATE OF SEARCH . ONLY IN THE J. N. INVESTMENTS OF THE ASSESSMENT GOT ABATED FOR A.Y. 2012 - 13 ON THE DATE OF SEARCH FOR WHICH NOTICE U/S 143(2) WAS ISSUED. THE LD. A.R HAD NOT BEEN ABLE TO DISLODGE THE CONTENTION OF THE REVENUE THAT ON THE DATE ON WHICH SEARCH & SEIZUR E PROCEEDINGS WERE CONDUCTED IN THE HANDS OF THE ASSESSEE A NOTICE UNDER SEC. 143(2) STOOD ISSUED AND THE PROCEEDINGS EMERGING THEREFROM WERE PENDING ADJUDICATION BEFORE THE A.O. WE THUS, IN THE BACKDROP OF THE PROCEEDINGS U/S 143(2) WHICH WERE PENDING IN THE CA S E OF THE ASSESSEE ON THE DATE OF SEARCH & SEIZURE PROCEEDINGS, VIZ. A.Y 2003 - 04, ARE OF THE CONSIDERED VIEW THAT THE ASSESSMENT PROCEEDINGS IN THE CASE OF THE ASSESSEE FOR A.Y 2002 - 03 STOOD ABATED. THE GROUND OF APPEAL NO. 4 RAISED BY THE ASSESSEE BEFORE US IS DISMISSED. 2. IT IS THE CONTENTION OF THE LD. A.R , THAT THE TRIBUNAL WHILE DISPOSING OF THE APPEAL OF THE ASSESSEE FOR A.Y 2011 - 12 HAD WRONGLY GONE BY THE FACTS WHICH WERE SUBMITTED BY THE LD. DEPARTMENTAL REPRESENTATIVE (FOR SHORT D.R) I N CONTEXT OF A.Y 2012 - 13 . THE LD. A.R TAKING US THROUGH THE FACTS RELEVANT TO THE ISSUE UNDER CONSIDERATION SUBMITTED THAT THE ASSESSEE VIDE G ROUND OF APPEAL NO. 4 HAD ASSAILED THE VALIDITY OF THE ASSESS MENT , ON THE FOLLOWING COUNT: THE LD. PR INCIPAL CIT FAILED TO APPRECIATE THAT AS ON THE DATE OF SEARCH, THE ASSESSMENT OR REASSESSMENT FOR THE ASSESSMENT YEAR UNDER CONSIDERATION WAS NOT PENDING AND NO ADDITION/DISALLOWANCE IS PERMISSIBLE IN RESPECT OF SUCH UNABATED ASSESSMENT YEAR IN THE A BSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. IT WAS SUBMITTED BY THE LD. A.R THAT DURING THE COURSE OF HEARING OF APPEAL , THE REVENUE HAD PLACED ON RECORD A CONSOLIDATE W RITTEN SUBMISSIONS, DATED 28.07.2017, W HER EIN IT WAS STATED AS UN DER: P A G E | 3 M.A. NO. 176/MUM/2018 A.Y. 2011 - 12 (ARISING OUT OF ITA NO. 2373/MUM/2017) J.N. INVESTMENT & TRADING CO. PVT. LTD. VS. PR. CIT(C) - 2. THEREFORE, IT IS FACT THAT IN NONE OF THE CASES ORDER U/S 143(3) WAS PASSED ON OR BEFORE 14.03.2013 (DT. OF SEARCH) FOR THE ASSESSMENT YEARS INVOLVED. APART FROM M/S J.N. INVESTMENT, IN NONE OF THE CASES NOTICE U/S 143(2) WAS ISSUED, THEREFORE, IN NONE OF THE 3 CASE AT S. NO. 1, 2 & 3 OF THE CHART ABOVE, ASSESSMENT PROCEEDINGS WERE PENDING ON THE DATE OF SEARCH . ONLY IN THE J. N. INVESTMENTS OF THE ASSESSMENT GOT ABATED FOR A.Y. 2012 - 13 ON THE DATE OF SEARCH FOR WHICH NOTICE U/S 143(2) WAS ISSUED. THE LD. A.R AVERRED THAT THE TRIBUNAL WHILE PASSING ITS ORDER , HAD MI ST OOK THE SUBMISSION OF THE REVENUE THAT O NLY IN THE J.N. INVESTMENTS THE ASSESS MENT GO ABATED FOR A.Y 2012 - 13 ON THE DATE OF SEARCH FOR WHICH NOTICE UNDER SEC. 143(2) WAS ISSUED , AS HAVING BEEN RENDERED IN CONTEXT OF THE YEAR UNDER CONSIDERATION VIZ. A.Y 2011 - 12. 3. FURTHER, IT WAS SUBMITTED BY THE LD. A.R THAT AS ADMITTED BY THE LD. D.R , THE ASSESSMENT FOR THE YEAR UNDER CONSIDERATION VIZ. A.Y 2011 - 12 WAS UNABATED ON THE DATE ON WHICH SEARCH & SEIZURE PROCEEDINGS WERE CONDUCTED . ON THE BASIS OF HIS AFORESAID SUBMISSION, THE LD. A.R AVERRED THAT THE TRIBUNAL BY PROCEEDING ON THE BASIS OF THE AFORESAID MISCONCEIVED FACT , WHICH CLEARLY MILITATES AGAINST THE ADMITTED POSITION AS IS BORNE FROM THE RECORD , HAD WRONGLY DISMISSED THE G ROUND OF APPEAL NO. 4 RAISED BY THE ASSESSEE , BY OBSERVING AS UNDER: THE ID. A. R. HAD NOT ABLE TO DISLODGE THE CONTENTION OF THE REVENUE THAT ON THE DATE ON WHICH SEARCH & SEIZURE PROCEEDINGS WERE CONDUCTED IN THE HANDS OF THE ASSESSEE A NOTICE UNDER SEC. 143(2) STOOD ISSUED AND THE PROCEEDINGS EMERGING THEREFROM WERE PENDING ADJUDICATION BEFORE THE A.O. WE THUS, IN THE BACKDROP OF THE PROCEEDINGS U/S 143(2) WHICH WERE PE NDING IN THE CASE OF THE ASSESSEE ON THE DATE OF SEARCH & SEIZURE PROCEEDINGS, VIZ. A.Y. 2003 - 03 ARE OF THE CONSIDERED VIEW THAT THE ASSESSMENT PROCEEDINGS IN THE CASE OF THE ASSESSEE FOR A.Y. 2002 03 STOOD ABATED. THE GROUND OF APPEAL NO. 4 RAISED BY THE ASSESSEE BEFORE US IS DISMISSED. 4. THE LD. A.R SUBMITTED , THAT NOW WHEN IT WAS AN ADMITTED FACT THAT THE ASSESSMENT FOR THE YE AR UNDER CONSIDERATION VIZ. A.Y 2011 - 12 WAS UNABATED ON THE DATE ON WHICH SEARCH PROCEEDING S WERE CONDUCTED , THEREFORE, THE AFORESAID OBSERVATIONS OF THE TRIBUNAL WHICH HAD BEEN ARRIVED AT ON THE BASIS OF A MISCONCEIVED FACT, THUS, COULD NOT BE SUSTAINED A ND MAY THERE FORE BE MODIFIED. P A G E | 4 M.A. NO. 176/MUM/2018 A.Y. 2011 - 12 (ARISING OUT OF ITA NO. 2373/MUM/2017) J.N. INVESTMENT & TRADING CO. PVT. LTD. VS. PR. CIT(C) - 2. 5. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE (FOR SHORT D.R) DID NOT CONTROVERT THE AFORESAID SUBMISSIONS ADVANCED BY THE LD. A.R . 6. WE HAVE HEARD THE AUTHORIZED REPRESENTATIVES OF BOTH THE PARTIES, PERUSED THE ORDER OF THE TRIBUNAL PASSED UNDER SEC. 254(1) , AS WELL AS THE ORDERS OF THE LOWER AUTHORITIES AND THE W RITTEN SUBMISSIONS DATED 28.07.2017 WHICH WERE FILED BY THE LD. D.R DURING THE COURSE OF HEARING OF THE APPEAL. WE ARE PERSUADED TO SUBSCRIBE TO THE C ONTENTION OF THE LD. A.R , THAT AN INADVERTENT MISTAKE HAD CREPT IN THE ORDER PASSED BY THE TRIBUNAL WHILE DISPOSING OFF THE APPEAL OF THE ASSESSEE. WE FIND THAT THE W RITTEN SUBMISSIONS PLACED ON RECORD BY THE LD. D.R, STATING THAT THE ASSESSMENT OF THE A SSESSEE COMPANY FOR A.Y 2012 - 13 HAD ABATED ON THE DATE OF SEARCH AS A NOTICE UNDER SEC. 143(2) WAS ISSUED, WAS WRONGLY CONSTRUED AND ADOPTED AT THE TIME OF PASSING OF THE ORDER BY THE TRIBUNAL , AS A SUBMISSION HAVING BEEN RENDERED IN CONTEXT OF THE YEAR UN DER CONSIDERATION VIZ. A.Y 2011 - 12. 7. WE THUS, IN TERMS OF OUR AFORESAID OBSERVATIONS , BEING OF THE CONSIDERED VIEW THAT THE ORDER PASSED BY THE TRIBUNAL UNDER SEC. 254(1), DATED 27.09.2017 SUFFERS FROM A MISTAKE WHICH IS GLARING, PATENT, OBVIOUS AND APPA RENT FROM RECORD, HENCE MODIFY/RECTIFY OUR ORDER TO THE SAID EFFECT. WE ARE OF THE CONSIDERED VIEW, THAT AS CAN SAFELY BE GATHERED FROM A PERUSAL OF THE W RITTEN SUBMISSIONS DATED 28.07.2017 FILED BY THE LD. D.R , THE ASSESSMENT FOR THE YEAR UNDER CONSIDER ATION VIZ. A.Y 2011 - 12 WAS UNABATED ON THE DATE OF THE SEARCH PROCEEDINGS. IN THE BACKDROP OF THE AFORESAID ADMITTED FACTUAL POSITION , OUR OBSERVATIONS RECORDED AT PARA 49 AT PAGE 53 - 45 SHALL STAND MODIFIED, AND BE SUBSTITUTED FOR OUR FOLLOWING OBSERVATIO NS: 29. THE ASSESSEE HAD FURTHER ASSAILED BEFORE US VIDE GROUND OF APPEAL NO. 4 THE VALIDITY OF THE ORDER PASSED BY THE PRINCIPAL CIT U/S 263, ON THE GROUND THAT AS NO ASSESSMENT OR REASSESSMENT FOR THE YEAR UNDER CONSIDERATION, VIZ. A.Y. 2011 - 12 OF THE ASSESSEE WAS PENDING ON THE DATE ON WHICH SEARCH AND SEIZURE PROCEEDINGS WERE INITIATED U/S 132(1), I.E. 14.03.2013, THEREFORE, NO ADDITION/DISALLOWANCE WAS PERMISSIBLE IN RESPECT OF SUCH UNABATED ASSESSMENT YEAR IN THE ABSENCE OF ANY INCRIMINATING MATERIA L FOUND DURING THE COURSE OF SEARCH AND SEIZURE PROCEEDINGS. WE THOUGH FIND THAT THE LD. D.R P A G E | 5 M.A. NO. 176/MUM/2018 A.Y. 2011 - 12 (ARISING OUT OF ITA NO. 2373/MUM/2017) J.N. INVESTMENT & TRADING CO. PVT. LTD. VS. PR. CIT(C) - 2. VIDE HER CONSOLIDATE WRITTEN SUBMISSIONS, DATED. 28.07.2017, PLACED ON OUR RECORD, HAD STATED AS UNDER: THEREFORE, IT IS FACT THAT IN NONE OF THE CASES ORDER U/S 143(3) WAS PASSED ON OR BEFORE 14.03.2013 (DT. OF SEARCH) FOR THE ASSESSMENT YEARS INVOLVED . APART FROM M/S J N INVESTMENT, IN NONE OF THE CASES NOTICE U/S 143(2) WAS ISSUED, THEREFORE, IN NONE OF THE 3 CASES AT S.NO. 1, 2 & 3 OF THE CHART ABOVE, ASSE SSMENT PROCEEDINGS WERE PENDING ON THE DATE OF SEARCH. ONLY IN THE J N INVESTMENTS THE ASSESSMENT GOT ABATED FOR A.Y. 2012 - 13 ON THE DATE OF SEARCH FOR WHICH NOTICE U/S 143(2) WAS ISSUED. ,HOWEVER, THE FACT AS IT SO REMAINS IS THAT THE ASSESSEE HAD FOR THE VERY FIRST TIME IN THE GROUND OF APPEAL NO. 4 RAISED THE CONTENTION THAT NO ASSESSMENT OR REASSESSMENT IN ITS CASE FOR THE YEAR UNDER CONSIDERATION, VIZ. A.Y. 2011 - 12 WAS PENDING ON THE DATE ON WHICH SEARCH AND SEIZURE PROCEEDINGS WERE INITIATED U/S 132(1), I.E. 14.03.2013, THEREFORE, NO ADDITION/DISALLOWANCE WAS PERMISSIBLE IN RESPECT OF SUCH UNABATED ASSESSMENT YEAR IN THE ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH AND SEIZURE PROCEEDINGS. WE ARE OF THE CONSIDERED VIEW T HAT THOUGH THE FACT THAT NO ASSESSMENT OR REASSESSMENT PROCEEDINGS WERE PENDING IN THE CASE OF THE ASSESSEE AT THE TIME WHEN SEARCH & SEIZURE PROCEEDINGS WERE CONDUCTED AGAINST THE ASSESSEE, HAD BEEN CONCEDED BY THE LD. D.R BEFORE US, BUT THEN, THE FACT AS TO WHETHER OR NOT ANY INCRIMINATING MATERIAL FOR THE YEAR UNDER CONSIDERATION, VIZ. A.Y. 2011 - 12 WAS FOUND DURING THE COURSE OF THE SEARCH & SEIZURE PROCEEDINGS, IS NOT BORNE FROM THE RECORDS. WE THUS IN THE BACKDROP OF THE AFORESAID FACTS, ARE UNABLE TO PERSUADE OURSELVES TO ACCEPT THE AFORESAID CONTENTION OF THE ASSESSEE ON THE VERY FACE OF IT. WE ARE OF THE CONSIDERED VIEW THAT AS THE ORDER PASSED BY THE PRINCIPAL CIT UNDER SECTION 263 OF THE ACT HAD ALREADY BEEN SET ASIDE AND THE ORDER PASSED BY THE A.O UNDER SEC. 153A R.W.S 143(3) HAD BEEN RESTORED BY US ON MERITS WHILE DISPOSING OF THE GROUNDS OF APPEAL NO. 1 & 2 RAISED BY THE ASSESSEE BEFORE US, THEREFORE, IN THE ABSENCE OF COMPLETE SET OF FACTS REQUIRED FOR ADJUDICATING THE GROUND OF APPEAL NO. 4 RAISED BY THE ASSESSEE BEFORE US, WHICH WE ARE OF THE CONSIDERED VIEW IS RENDERED AS ACADEMIC, THEREFORE, REFRAIN FROM ADJUDICATING THE SAME. WE THUS, IN TERMS OF OUR AFORESAID OBSERVATIONS MODIF Y /RECTIF Y THE ORDER PASSED BY THE TRIBUNAL WHILE DISPOSING OFF THE APPEAL OF THE ASSESSEE IN ITA NO. 2373/MUM/2017, DATED 27.09.2017 , AND THE G ROUND OF APPEAL NO. 4 RAISED BY THE ASSESSEE BEFORE US, HAVING BEEN RENDERED AS ACADEMIC, THEREFORE, WE REFRAIN FROM ADJUDICATING THE SAME. WE THUS, IN TER MS OF OUR AFORESAID OBSERVATIONS MODIFY OUR ORDER PASSED IN THE CASE OF THE ASSESSEE IN IN ITA NO. 2373/MUM/2017, DATED 27.09.2017, AND ALLOW THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE , IN TERMS OF OUR AFORESAID OBSERVATIONS. P A G E | 6 M.A. NO. 176/MUM/2018 A.Y. 2011 - 12 (ARISING OUT OF ITA NO. 2373/MUM/2017) J.N. INVESTMENT & TRADING CO. PVT. LTD. VS. PR. CIT(C) - 2. 8. THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED IN TERMS OF OUR AFORESAID OBSERVATIONS . ORDER PRONOUNCED ON 1 0 . 10.2018 S D / - S D / - ( G.S PANNU ) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 10 . 10 .2018 PS. ROHIT / COPY OF THE ORDER FORWARDED TO : 1. / THE APP LLICANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI