DCIT, Central Circle-1(3), Ahmedabad V. Shri Sureshbhai U Gadhecha, Ahmedabad

MA 18/AHD/2024

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 3066 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-04-2024
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 14-03-2024
• Assessment Year: 2016-2017
• Appeal Filed On: 06-02-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 147; 148

Judgement Text

M.A. Nos.13, 14, 15, 16, 17 & 18/Ahd/2024 (In IT(SS)A Nos.88, 89, 90, 91, 92 & 151/Ahd/2021) AYs: 2011-12, 2012-13, 2013-14, 2014-15, 2015-16 & 2016-17 Page 1 of 3 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “C” BENCH, AHMEDABAD BEFORE Ms. SUCHITRA KAMBLE, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER M.A. Nos.13, 14, 15, 16, 17 & 18/Ahd/2024 (In IT(SS)A Nos.88, 89, 90, 91, 92 & 151/Ahd/2021) Assessment Years: 2011-12, 2012-13, 2013-14, 2014-15, 2015-16 & 2016-17 respectively) The DCIT, Central Circle – 1(3), Ahmedabad. Vs. Shri Sureshbhai U. Gadhecha, 1/A, Dipawali Centre, Opp. Old High Court, Income Tax, Ahmedabad – 380 014. [PAN – AAZPG 9771 D] (Appellant) (Respondent) Assessee by Shri Aseem L. Thakkar, AR Revenue by Shri Ashok Kumar Suthar, Sr. DR Da t e o f He a rin g 15.03.2024 Da t e o f P ro n o u n ce m e n t 10.04.2024 O R D E R PER SUCHITRA KAMBLE, JUDICIAL MEMBER: 1. These Miscellaneous Applications are filed by the Revenue in respect of common order dated 27.09.2023 passed by the Tribunal. 2. The Ld. DR submitted that the Tribunal held that no additions were made based on the incriminating documents. The Ld. DR submitted that the order of the Tribunal is passed after the latest judgment of Hon’ble Supreme Court in the case of Pr. CIT vs. Abhisar Buildwell Pvt. Ltd. delivered on 24.04.2023. As per para 14(iv) of the said decision “in case no incriminating material is unearthed during search, the AO cannot assess or reassess taking into consideration the other material in respect of completed assessment/unabated assessment. However, the completed assessment / unabated assessment can be reopened by the AO in M.A. Nos.13, 14, 15, 16, 17 & 18/Ahd/2024 (In IT(SS)A Nos.88, 89, 90, 91, 92 & 151/Ahd/2021) AYs: 2011-12, 2012-13, 2013-14, 2014-15, 2015-16 & 2016-17 Page 2 of 3 exercise of powers u/s 147 / 148 of the Act subject to fulfilment of conditions as envisaged / mentioned u/s 147 / 148 of the Act those powers are saved. Further, in the case of DCIT vs. M/s U. K. Paints (Overseas) Limited, another judgment delivered by the Apex Court on 25.04.2023 wherein the Court held that in case any other information, other than the incriminating seized material, which comes to the notice of the Revenue, it will be open for the Revenue to initiate reassessment proceedings in accordance with law and if permissible under the law. The Ld. DR further submitted that as per direction in Instruction No. 1 of 2023 of the CBDT in this case time limit to reassess the income attributable to cash deposit of Rs. 15,04,700/- and unexplained sales of Rs. 2,56,42,457/- has already been lapsed. Therefore, the Ld. DR submitted that the Tribunal should give the suitable direction u/s 150 of the Income Tax Act to initiate reassessment proceedings u/s 147 of the Act to reassess the case of the assessee for AY 2011- 12 to 2016-17. 3. The Ld. AR submitted that both the decisions of the Hon’ble Apex Court was passed prior to the decision of the Tribunal and in fact the decision of Abhisar Buildwell (supra) was relied upon by the Ld. AR during the hearing of the appeal. The Ld. AR submitted that the Tribunal has given a clear and factual finding, therefore, there is no need to interfere with the same as the department through this Misc. Applications is calling upon the review of the order dated 27.09.2023. 4. We have heard both the parties and perused all the relevant material available on record. It is pertinent to note that the Tribunal vide order dated 27.09.2023 has given a factual finding that the seized material is not co-related with the assessee’s name / proprietorship firm. Thus, the Ld. DR at this juncture is building a case for which the Tribunal has already given a clear factual finding. Besides this the decisions of Hon’ble Apex Court were not cited by the Ld. DR at the time of hearing, but the same was very well quoted by the Ld. AR during the hearing of the appeal. In fact, the Tribunal was also aware about the same. The assessee’s case was fully decided on its merit and as per the Income Tax provisions interpreted by the Hon’ble Apex Court in various decisions from time to time. Thus, the direction which is sought by the Ld. DR at this juncture is coming M.A. Nos.13, 14, 15, 16, 17 & 18/Ahd/2024 (In IT(SS)A Nos.88, 89, 90, 91, 92 & 151/Ahd/2021) AYs: 2011-12, 2012-13, 2013-14, 2014-15, 2015-16 & 2016-17 Page 3 of 3 under the purview of review of our order dated 27.0.2023. In fact, the decision of Abhisar Buildwell (supra) reinterprets that Assessing Officer can exercise the power of Section 147 / 148 of the Act after fulfilment of certain conditions but in the present assessee’s case before us, these conditions seems to be not pointed out by the Ld. DR. As relates to the decision of U. K. Paints (supra), the Hon’ble Apex Court in case there is any other information available to Assessing Officer then the department can reopen the case, but in the present assessee’s case the department did not have any other information and also not pointed the same if any during the hearing or in the present M.A. Therefore, the Revenue is seeking review of the order dated 27.09.2023 which is beyond the provisions of Income Tax Act, 1961. Therefore, the present Misc. Applications for A.Ys. 2011-12 to 2016-17 which are identical in nature are dismissed. 5. In result, all Misc. Applications filed by the Revenue are dismissed. Order pronounced in the open Court on this 10 th April, 2024. Sd/- Sd/- (WASEEM AHMED) (SUCHITRA KAMBLE) Accountant Member Judicial Member Ahmedabad, the 10 th day of April, 2024 PBN/* Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Assistant Registrar Income Tax Appellate Tribunal Ahmedabad benches, Ahmedabad