SUSHILA S. PUJARI, V. ACIT CIR (2)2,

MA 262/MUM/2009

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 3861 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-07-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: misc
• Appeal Filed On: 16-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARIGOVIND SINGH
• Assessee Lawyers: DR K SHIVARAM
• Keywords: Search and seizure
• Section: 32

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C : MUMBAI BEFORE SHRI D.K. AGARWAL, (JM) AND SHRI P.M. JAGTA P ,(AM) M.A. NO.262/MUM/2009 ARISING OUT OF IT(SS)A NO.456/MUM/2003 ASSESSMENT YEAR : BLOCK PERIOD ENDING ON 24.01.2 001 SUSHILA S. POOJARI L/H OF LATE SHRI SHANKAR B. POOJARI 11, DHARAM PREM APARTMENT NEHRU ROAD, VILE PARLE MUMBAI-400057. ..(APPLICANT) P.A. NO. (AAAPP 9896 P) VS. THE ASSTT. COMMISSIONER OF INCOME TAX CIRCLE 21(2) MUMBAI-400051. ..(RESPONDENT) APPLICANT BY : DR. K . SHIVARAM RESPONDENT BY : SHRI HAR I GOVIND SINGH O R D E R PER D.K. AGARWAL (JM). THE ASSESSEE VIDE APPLICATION DATED 31.5.2010 STATED THAT THE HONBLE BOMBAY HIGH COURT VIDE ORDER DATED 5.10.09 HAS SET ASIDE THE ITAT ORDERS DATED 22.12.08 AND 23.9.09 AND DIRECT ED THE ITAT TO RE-HEAR THE APPEAL AFRESH AFTER HEARING THE PARTIES I N ACCORDANCE WITH LAW. THE ASSESSEE ALSO PLACED ON RECORD THE COPY OF THE SA ID ORDER OF THE HONBLE HIGH COURT. MA NO.262/M/09 A.Y:BP 2 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT IT HAS BEEN OBSERVED BY THE ASSESSING OFFICER THAT A SEARCH AND SEIZURE ACTION U/S.1 32 OF THE INCOME TAX ACT, 1961 (THE ACT) WAS CARRIED OUT IN THE CASE OF THE ASSESSEE ON 21.1.2001. IN RESPONSE TO NOTICE ISSUED U/S.158B C OF THE ACT, THE ASSESSEE FILED RETURN FOR THE BLOCK PERIOD DECLAR ING TOTAL UNDISCLOSED INCOME AT RS.18.00 LACS. HOWEVER, THE ASSESSMENT WAS COMPLETED ON A TOTAL UNDISCLOSED INCOME OF RS.2,48,23,66 0/- VIDE ORDER DATED 31.1.2003 PASSED U/S.158BC OF THE ACT. ON APPEAL THE LD. CIT(A), WHILE ALLOWING SUBSTANTIAL RELIEF TO THE ASSESSE E COMPUTED THE INCOME AS UNDER :- INCOME DISCLOSED BY THE APPELLANT FOR THE BLOCK RET URN RS.18,00,000/- ADDITIONS MADE BUT NOT CHALLENGED IN THE ASSESSMENT ORDER RS. 1,86,000/- ADDITION ON ACCOUNT OF FOREIGN TRAVEL UPHELD RS. 2,00,000/- TOTAL INCOME RS.21,86,000/- AGAINST THE ORDER PASSED BY THE LD. CIT(A) THE REVENUE PREFERRED APPEAL BEFORE THE TRIBUNAL. THE TRIBUNAL VIDE ORDE R IN IT(SS)A NO.456/M/2003 FOR THE BLOCK PERIOD ENDING ON 24.1.20 01 DATED 3.10.2006 AGAINST THE DELETION OF ADDITION OF UNEXPL AINED CASH LOANS OF RS.154.25 LACS AND INTEREST PAYMENT OF RS.4,46,000/- WHI LE RESTORING THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH DIRECT IONS, DISMISSED THE REVENUES GROUND NO.2 AGAINST THE DELETION OF ADD ITION MADE ON THE ENTIRE UNACCOUNTED SALES ESTIMATED BY THE ASSESSING OFFI CER AND ACCORDINGLY PARTLY ALLOWED THE REVENUES APPEAL FOR STA TISTICAL PURPOSES. MA NO.262/M/09 A.Y:BP 3 3. AGAINST THE ORDER PASSED BY THE TRIBUNAL, THE ASSESSEE FILED MISCELLANEOUS APPLICATION POINTING OUT THAT THE TRIBUNA L HAS WRONGLY MENTIONED THE DATE OF SEARCH AS 21.1.2001 IN PLACE OF 24.1.2001, THEREFORE, THE ORDER PASSED BY THE TRIBUNAL ON GROUND NO.1 MAY BE RECALLED. 4. THE TRIBUNAL VIDE MA NO.179/M/2007 ARISING OUT OF IT(SS)A NO.456/M/2003 VIDE ORDER DATED 6.7.2007 RE-CALLED TH E ORDER OF THE TRIBUNAL DATED 3.10.2006 WITH REGARD TO GROUND NO.1 OF THE REVENUE. 5. PURSUANT TO THE ORDER OF THE TRIBUNAL, THE TRIBUN AL VIDE ITS ORDER IN IT(SS)A NO.456/M/2003 DATED 22.12.2008 DECIDED THE REVENUE S APPEAL IN GROUND NO.1 AFRESH AND SET ASIDE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH DIRECTIONS TO RE-DECIDE THE ISSUE ON MERITS AFTER ALLOWING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE AND THE ASSESSING OFFICER. 6. AGAINST THE SAID ORDER OF THE TRIBUNAL THE ASSESSEE AG AIN FILED MISCELLANEOUS APPLICATION POINTING OUT CERTAIN MISTAKES AN D ALSO THAT THE TRIBUNAL ERRED IN SETTING ASIDE THE MATTER TO THE ASSESSING OFFICER GIVING DIRECTION TO MAKE FURTHER ENQUIRY ON THE SOURCE OF INVESTMENT IN SHOPS WHICH WAS NOT THE ISSUE BEFORE ANY AUTHORITY THERE BY PROVIDING SECOND INNINGS TO THE DEPARTMENT WHICH IS AGAINST THE BL OCK ASSESSMENT YEAR. MA NO.262/M/09 A.Y:BP 4 7. THE TRIBUNAL VIDE ITS ORDER IN MISCELLANEOUS APPLICAT ION NO.262/M/2009 ARISING OUT OF IT(SS)A NO.456/MUM/2003 DATED 23.6.2009 WHILE OBSERVING THAT THERE IS NO MERIT IN T HE MISCELLANEOUS APPLICATION, DISMISSED THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE . 8. AGAINST THE ORDERS PASSED BY THE TRIBUNAL IN QUANTUM APPEAL DATED 22.12.2008 AND MISCELLANEOUS APPLICATION ORDER DA TED 23.6.2009 THE ASSESSEE FILED WRIT PETITION BEFORE THE HON'BLE JURISDICTIONAL HIGH COURT. THE HON'BLE JURISDICTIONAL HIG H COURT HAS HELD VIDE PARA-6 OF ITS ORDER IN WRIT PETITION NO.16 61 OF 2009 DATED 5.10.2009 AS UNDER : 6. CONSIDERING THESE CIRCUMSTANCES, THE ENDS OF JUSTICE WOULD BE MET IF THE IMPUGNED ORDER DATED 22 ND DECEMBER, 2008 AND SUBSEQUENT ORDER DATED 23 RD JUNE, 2009 ARE SET ASIDE AND THE MATTER IS RESTORED TO TH E FILE OF THE LEARNED TRIBUNAL TO HEAR THE PARTIES DE NOVO AC CORDING TO LAW. 9. AT THE TIME OF HEARING BOTH PARTIES HAVE AGREED T HAT IN VIEW OF THE ORDER OF THE HONBLE HIGH COURT WHEREIN THEIR LOR DSHIPS HAVE SET ASIDE BOTH THE ORDERS OF THE TRIBUNAL DATED 22.12.200 8 AND 23.6.2009 AND RESTORED BACK THE MATTER TO THE FILE OF THE TRIBU NAL, THEREFORE, THE PRESENT MISCELLANEOUS APPLICATION MAY BE DISPOSED OF BY FI XING A FRESH DATE OF HEARING IN THE QUANTUM APPEAL FILED BY THE REVENUE AGAINST THE ORDER PASSED BY THE LD. CIT(A). MA NO.262/M/09 A.Y:BP 5 10. THAT BEING SO, AND IN THE ABSENCE OF ANY OTHER CONT RARY MATERIAL PLACED ON RECORD BY THE PARTIES WE RESPECTFULLY FOLLOWIN G THE ORDER OF THE HONBLE JURISDICTIONAL HIGH COURT FIX THE FRESH DAT E OF HEARING IN THE ABOVE APPEAL FOR 13.9.2010 AS ANNOUNCED IN THE O PEN COURT. THE PARTIES ARE DIRECTED TO TAKE NOTE OF THE ABOVE DATE O F HEARING I.E., 13.9.2010 AS NO FRESH NOTICE SHALL BE SENT TO THE PARTIE S. ACCORDINGLY THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISPOSE D OF AS INDICATED ABOVE. 11. IN THE RESULT MISCELLANEOUS APPLICATION STANDS ALLOWE D AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 9.7.2010. SD/- SD/- (P.M. JAGTAP) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 9.7.2010. JV. COPY TO: THE APPLICANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI. MA NO.262/M/09 A.Y:BP 6 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 2.7.10 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 2.7.10 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 9.7.10 SR.PS/PS 7. FILE SENT TO THE BENCH CLERK 12.7.10 SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER