DCIT, CC-3(4), Kolkata, Kolkata V. M/s. Mukti Projects Pvt. Ltd., Kolkata

MA 20/KOL/2019

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2912 (ITAT-KOLKATA)
• Duration Of Justice: 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-02-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 29-01-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Documents seized
• Section: 132

Judgement Text

1 MA NOS. 14, 20 & 21/KOL/2019 (ITSS NOS. 19, 17 & 18/KOL/2017 A.YS 2010 - 11, 2009 - 10 & 2011 - 12 M/S. MUKTI PROJECTS PVT. LTD IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH , KOLKATA [BEFORE SHRI S.S. GODARA , J M & DR. SHRI A.L.SAINI,AM ] M.A NO. 14/KOL/2019 ( A/O IT (SS) NO. 19/KOL/2017 A.Y 2010 - 11 ACIT, CENTRAL CIRCLE - 3(4), KOLKATA VS. M/S. MUKTI PRO PERTIES PVT. LTD PAN: AA CC M0424D APPLICANT /DEPARTMENT RESPONDENT /ASSESSEE M.A NO. 20/KOL/2019 ( A/O IT (SS) NO. 17/KOL/2017 A.Y 2009 - 10 ACIT, CENTRAL CIRCLE - 3(4), KOLKATA VS. M/S. MUKTI PROJECTS PVT. LTD PAN: AAACH6312B APPLICANT /DEPARTMENT RESPONDENT /ASSESSEE M.A NO. 21/KOL/2019 ( A/O IT (SS) NO. 18/KOL/2017 A.Y 2011 - 12 ACIT, CENTRAL CIRCLE - 3(4), KOLKATA VS. M/S. MUKTI PROJECTS PVT. LTD PAN: AAACH6312B APPLICANT /DEPARTMENT RESPONDENT /ASSESSEE DATE OF HEARING 22 - 02 - 2019 DATE OF PRONOUNCEMENT 28 - 02 - 201 9 FOR THE APP LICANT/ ASSESSEE SHRI SANKAR HALDER, JCIT, LD. SR.DR FOR THE RESPONDENT /REVENUE SHRI A.K. TULSIYAN, FCA, LD.AR ORDER PER DR. A.L.SAINI, A.M .: BY WAY OF THE CAPTIONED APPLICATION S , THE REVENUE HAS SOUGHT TO POINT OUT THAT A MISTAKE APPARENT ON RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE ACT ( IN SHORT ACT) HAS BEEN CREPT IN THE ORDER OF TRIBUNAL DT. 14 - 12 - 2018. 2. THE CASE OF THE REVENUE IN TH ESE MISCELLANEOUS A PPLICATION S ARE AS FOLLOWS: 1. THAT, ON THE FAC TS AND CIRCUMSTANCES OF THE CASE IN LAW, HON' BLE ITAT HAS NOT CONSIDERED THE FACTS THAT INCRIMINATING DOCUMENTS HAVE BEEN FOUND AND SEIZED DURING THE COURSE OF SEARCH WHICH CLEARLY INDICATES THAT ACCOMMODATION ENTRY OF SHARE CAPITAL HAS BEEN TAKEN BY TH E ASSESSEE COMPANIES DURING THE RELEVANT PERIOD. 2 MA NOS. 14, 20 & 21/KOL/2019 (ITSS NOS. 19, 17 & 18/KOL/2017 A.YS 2010 - 11, 2009 - 10 & 2011 - 12 M/S. MUKTI PROJECTS PVT. LTD 2. THAT, ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, HON 'BLE ITAT HAS NOT CONSIDERED THE FACTS THAT KEY PERSON OF THE GROUP COMPANIES SRI RAJ KUMAR GUPTA HAS ACCEPTED THE ABOVE FACTS IN HIS STA TEMENT AS WELL AS HIS ACCOUNTANT SRI INDRA BHANU NAYAK IN HIS STATEMENT U/S 132(4) OF THE IT ACT. 3. IN THE COMMON ORDER FOR A.Y. 2009 - 10, 2010 - 11 AND 2011 - 12, THE HON'BLE ITAT HA S ERRED IN MAKING ORDER IN THE NAME OF M/S. MUKTI PROJECTS PVT. LTD. WHE REAS APP EAL RELATES TO M/S. MUKTI PROJECTS PVT. LTD. FOR A. Y. 2009 - 10 & 201 1 - 12 AND M/S. M U KTI PROPERTIES PVT. LTD. FOR A.Y. 2010 - 11.LT NEEDS TO BE RECTIFIED. 4. THE RESPONDENT CRAVES THE LEAVE TO MAKE ANY ADDITION, ALTERATION, MODIFICATION AND REMODEL LING OR WITHDRAWING OF THE GROUNDS. 3 . WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD . WE NOTE THAT THE MAIN GRIEVANCE OF THE REVENUE IS THAT THE TRIBUNAL HAS NOT CONSIDERED THE INCRIMINATING DOCUMENTS SEIZED DURING THE COURSE OF SEARCH. APART FROM THIS, THE TRIBUNAL HAS NOT CONSIDERED THE STATEMENT OF SRI INDRABHANU NAYAK U/S. 132 (4 ) OF THE ACT . WE NOTE THAT THERE IS NO WHISPER OF THE INCRIMINATING DOCUMENTS IN THE ASSESSEES CASE UNDER CONSIDERATION. ANOTHER GR IEVANCE OF THE REVENUE IS THAT THE TRIBUNAL HAS NOT CONSIDERED THE STATEMENTS RECORDED U/S. 132(4) OF THE ACT OF AN ACCOUNTANT, SRI INDRABHANU NAYAK . WE NOTE THAT THE STATEMENT OF SRI INDRABHANU NAYAK IS NOT SUPPORTED BY ANY CORROBORATIVE OR TANGIBLE MATE RIAL , THEREFORE, BASED ON STATEMENT ADDITION CANNOT BE MADE . THE CBDTS CIRCULAR DATED 10/3/2003 ITSELF MAKES IT CLEAR THAT SUCH A STATEMENT OR ADMISSION CARRIES NO SUBSTANCE IN ABSENCE OF ANY EVIDENCE. THEREFORE, THE GROUNDS NOS. 1 AND 2 RAISED BY TH E REVENUE DO NOT HAVE ANY BASE. THEREFORE, THERE IS NO APPARENT ERROR IN THE IMPUGNED ORDER OF THE TRIBUNAL D A T ED 14 - 12 - 2018. THEREFORE, WE DISMISS GROUND NOS. 1 AND 2 RAISED BY REVENUE. 4. IN GROUND NO. 3 RAISED BY THE REVENUE, WHEREIN THE REVENUE HAS POINTED OUT THAT THE ITAT HAS ERRED IN MAKING THE ORDER IN THE NAME OF M/S. MUKTI PROJECTS PVT. LTD ., WHEREAS APPEAL S RELATE TO M/S. MUKTI PROJECTS PVT. LTD ARE ONLY FOR A.YS 2009 - 10 & 2011 - 12 . W HEREAS IT(SS) NO. 19/KOL/2017 RELATES TO M/S. MUKTI PRO PERTIES PVT. LTD FOR A.Y 2010 - 11, WHICH NEEDS TO BE RECTIFIED. WE ARE OF THE VIEW THAT FOR THE A.Y 2010 - 11, THE APPEAL RELATES TO M/S. MUKTI PROPERTIES PVT. LTD, WHICH HAS BEEN ADJUDICATED AS IF IT IS M/S. MUKTI PROJECTS PVT. LTD . THEREFORE , WE RECTIFY THE SAID MISTAKE AS CREPT IN THE SAID ORDER D A T ED 14 - 12 - 2018 . THE FIRST PAGE OF TRIBUNALS ORDER ( DATED 14.12.2018) SO FAR ASSESSEES DETAILS ARE CONCERNED SHOULD BE READ AS FOLLOWS: - 3 MA NOS. 14, 20 & 21/KOL/2019 (ITSS NOS. 19, 17 & 18/KOL/2017 A.YS 2010 - 11, 2009 - 10 & 2011 - 12 M/S. MUKTI PROJECTS PVT. LTD SL. NO. NAME OF THE ASSESSEE PAN A.Y 01. MUKTI PROJECTS PVT. LTD AAA CH6312B 2011 - 12 02. MUKTI PROJECTS PVT. LTD AAACH6312B 2009 - 10 03. MUKTI PROPERTIES PVT. LTD AACCM0424D 2010 - 11 4 . IN THE RESULT, THE MISCELLANEOUS A PPLICATION S FILED BY THE REVENUE ARE ALLOWED AS PER THE DISCUSSION MADE (SUPRA) . ORDER PRONOUNCED IN THE OPEN COURT ON 28 - 02 - 201 9 SD/ - SD/ - S.S. GODARA DR. A.L.SAINI JUDICIAL MEMBER ACCOUNTANT MEMBER DATED 28 - 02 - 2019 PP(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APP LICANT / REVENUE: THE ACIT, CENTRAL CIR 3(4), AAYKAR BHAWAN POORVA, 5 TH FLOOR, 110 SHANTI PALLY, KOLKATA - 107. 2 RESPONDENT/ ASSESSEE: M/S. MUKTI PROPERTIES PVT. LTD & M/S. MUKTI PROJECTS PVT. LTD 4 CLIVE ROW, MUKTI CHAMBERS, KOLKATA - 1. 3. CIT, 4. CIT( A), KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA **PP/SPS TRUE COPY BY BY ORDER ASSISTANT REGISTRAR ITAT KOLKATA