DCIT, V. MADHU J BIJLANI & OTHERS,

MA 25/MUM/2010

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 3848 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-07-2010
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: J
• Assessment Year: misc
• Appeal Filed On: 18-01-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: A K NAYAK
• Keywords: Search and seizure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'J' BENCH, MUMBAI BEFORE SHRI D.K. AGARWAL, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER MA NO. 25/MUM/2010 (ARISING OUT OF IT(SS) NOS. 170 TO 172/MUM/2006) (BLOCK PERIOD: 01.04.1987 TO 03.09.1997) SHRI MADHU J. BIJLANI PAN AAWPB 0486 B SHRI ANIL J. BIJLANI PAN AAWPB 4862 B SHRI DEEPAK BIJLANI PAN AAWPB 4863 B DCIT, CIRCLE 2 INCOME TAX OFFICER RANI MANSION FLAT NO. 2, RAID ROSE SOCIETY MURBAD ROAD, KALYAN OPP. CHOPRA COURT, ULHASNAGAR 421003 VS. APPLICANT RESPONDENT APPLICANT BY: SHRI ASHOK PATIL RESPONDENT BY: SHRI A.K. NAYAK O R D E R PER B. RAMAKOTAIAH, A.M. THIS MISCELLANEOUS APPLICATION WAS FILED BY THREE A SSESSEES AS THE ORDER WAS COMMON AND THE FINDINGS WERE ALSO COMMON. 2. THE LEARNED COUNSEL DURING THE COURSE OF ARGUMENT SUBMITTED THAT SOME OF THE FINDING GIVEN BY IN THE ITAT ORDER WERE NOT CORRECT ON FACTS AS NO STATEMENT OF SHRI AJIT S. CHIWANI WERE GIVEN TO THE RESPONDENTS DURING 158BD PROCEEDINGS AND ANY OF THE ALLEGEDLY SEIZED D OCUMENTS WERE GIVEN DURING THE PROCEEDINGS. RESPONDENTS WERE ALSO NOT GIVEN ANY CHANCE TO CROSS EXAMINE SHRI AJIT S. CHIJWANI. CONSEQUENTLY T HE ASSESSEE HAS A RIGHT TO QUESTION THE PROCEEDINGS UNDER SECTION 158. IT W AS FURTHER SUBMITTED THAT THE STOCK DECLARED IN THE VDIS AND THE ASSESSED INC OME IN RESPECT OF STOCK ARE TOTALLY DIFFERENCE AND THEREFORE, THE FINDINGS GIVEN BY THE BENCH NEEDS TO BE DELETED OR MODIFIED. FURTHER HE SUBMITTED THAT S INCE THE MATTER WAS RESTORED BACK TO THE FILE OF THE A.O. THE ORDER OF THE ITAT IN PARA 18 CAN BE MODIFIED TO THE EXTENT THAT THE A.O. IS FREE TO EXA MINE ALL THE ISSUES AND ISSUE CAN BE EXAMINED DE NOVO. 3. THE LEARNED D.R., HOWEVER, SUBMITTED THAT THERE IS NO MISTAKE IN THE ORDER OF THE ITAT. MA NO. 25/MUM/2010 SHRI MADHU J. BIJLANI & OTHERS 2 4. WE HAVE CONSIDERED THE ISSUE. THERE ARE CERTAIN OBS ERVATIONS MADE BY THE ITAT WHILE ARRIVING AT THE CONCLUSION IN RESTOR ING THE MATTER TO THE FILE OF THE A.O. FOR FRESH EXAMINATION. THE DIRECTION OF TH E ITAT IN PARA 18 IS AS UNDER; UNDER THESE CIRCUMSTANCES, WE ARE OF THE CONSIDERED OPINION THAT ORDER OF THE CIT(A) MUST BE SET ASIDE AND ALL THESE ISSUES ARE RESTORED TO THE FILES OF THE AO FOR FRESH EXAMINATION AND DECIDE TH E ISSUE AFRESH IN THE LIGHT OF THE DISCUSSION GIVEN ABOVE . MAY BE THE LAST PART OF THE SENTENCE MAY CREATE AN IMPRESSION THAT THE ITAT HAS GIVEN FINDINGS ON C ERTAIN ISSUES. SINCE THE ITAT HAS EXPRESSED DIFFICULTY IN EXAMINING THE ISSU ES AS PER THE DISCUSSION IN PARA 18, WE ARE OF THE OPINION THAT THE DIRECTIO N IS MODIFIED AS UNDER: - UNDER THESE CIRCUMSTANCES, WE ARE OF THE CONSIDERED OPINION THAT THE IMPUGNED ORDER OF THE CIT(A) MUST BE SET A SIDE AND ALL THESE ISSUES ARE RESTORED TO THE FILES OF A.O. FOR FRESH EXAMINATION AND DECIDE THE ISSUE AFRESH . 5. WITH THIS MODIFICATION OF THE DIRECTION, THE MISCEL LANEOUS APPLICATION IS CONSIDERED ALLOWED. ASSESSEE IS FREE TO AGITATE THE ISSUES RAISED IN THE M.A. BEFORE THE A.O ALONG WITH OTHER CONTENTIONS. 2. IN THE RESULT, M.A IS CONSIDERED PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH JULY 2010. SD/- SD/- (D.K. AGARWAL) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 30 TH JULY 2010 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) II, THANE 4. THE CIT III, THANE 5. THE DR, J BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.