ZIAUDDIN A SIDDIQUE, V. JCIT 19(3) & ACIT 24 & 26,

MA 315/MUM/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2621 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2005-2006
• Appeal Filed On: 25-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUM BAI , , BEFORE SHRI SANJAY ARORA, AM AND SHRI VIJAY PAL RA O, JM MA NOS. ARISING OUT OF ITA NOS. A.YS. 310/MUM/2014 4699/MUM/2011 2004-05 311/MUM/2014 4700/MUM/2011 2005-06 312/MUM/2014 5293/MUM/2011 2003-04 313/MUM/2014 5294/MUM/2011 2004-05 314/MUM/2014 5295/MUM/2011 2002-03 315/MUM/2014 5296/MUM/2011 2005-06 ZIAUDDIN A. SIDDIQUE C/O. R. SANGHVI & CO. 104, RIZVI CHAMBERS-2, JAIN MANDIR MARG, BANDRA (W), MUMBAI-400 050 / VS. JT. CIT 19(3), 3 RD FLOOR, PIRAMAL CHAMBERS, PAREL, MUMBAI-400 012 ./ ./PAN/GIR NO. AHLPS 0554P ( APPLICANT ) : ( RESPONDENT ) APPLICANT BY : SHRI RAJESH SANGHVI RESPONDENT BY : SHRI PARMINDER ! ' # $ % & / DATE OF HEARING : 12.09.2014 '() $ % & / DATE OF PRONOUNCEMENT : 10.12.2014 * / O R D E R PER SANJAY ARORA, A. M.: THIS IS A SET OF SIX MISCELLANEOUS APPLICATIONS BY THE ASSESSEE ARISING OUT OF THE DISPOSAL OF THE CAPTIONED APPEALS BY IT BEFORE THE TRIBUNAL FOR THE ASSESSMENT YEARS (A.YS.) 2002-03 TO 2005-06, VIDE ITS ORDER DATED 25 /4/2014. THE SUBJECT MATTER OF THE APPLICATIONS BEING COMMON, THESE WERE HEARD TOGETHER, AND ARE ACCORDINGLY BEING DISPOSED OF VIDE A COMMON ORDER. 2 MA NOS. 310 TO 315/MUM/2014 ZIAUDDIN A. SIDDIQUE VS. JT. CIT 2. THE FOLLOWING ISSUES STAND RAISED BY THE ASSESSE E PER ITS INSTANT APPLICATIONS: A) FOR A.YS. 2002-03 TO 2004-05 : ASSESSMENTS IN ALL THESE STAND COMPLETED BEFORE TH E DATE OF SEARCH (I.E., 08.05.2007), ASSESSING THE INCOME FROM WHAT THE ASSESSEE CALLS AS A BUSINESS CENTRE (BY THE NAME ZEAR BUSINESS CENTRE), AS BUSINESS INCOME. THE SUBSEQUENT ASSESSMENTS U/S.153A IN RESPECT OF T HESE YEARS, HOWEVER, IS MADE ASSESSING THE SAID INCOME AS INCOME FROM HOUS E PROPERTY, EVEN AS NO INCRIMINATING MATERIAL IN RELATION TO THIS INCOM E, OR EVEN OTHERWISE, STANDS FOUND DURING SEARCH. ACCORDINGLY, THE ASSESS MENT AS ALREADY MADE COULD NOT BE DISTURBED. THE ASSESSEES RELIANCE ON ASST. CIT VS. PRATIBHA INDUSTRIES LTD. [2013] 141 ITD 151 (MUM) AND ALL CARGO GLOBAL LOGISTICS LTD. VS. DY. CIT [2012] 137 ITD 287 (MUM) (SB) HAS BEEN WRONGLY DISTINGUISHED BY THE TRIBUNAL VIDE ITS IMPUGNED ORD ER, RELYING ON THE DECISION IN THE CASE OF CIT VS. ANIL KUMAR BHATIA [2013] 352 ITR 493 (DEL) AND AHURA HOLDINGS VS. DY. CIT [2012] 346 ITR 106 (AP). B) FOR A.Y. 2005-06 THE TRIBUNAL HAS VIDE PARA 3.8 OF ITS IMPUGNED ORDE R, UPHELD THE FINDINGS AND DECISION BY THE REVENUE IN THE CASE OF THE SCRIP RAMAKRISHNA FINCAP LTD ., ON THE BASIS THAT ITS DECISION QUA THE SCRIP ELTROL LTD. SHALL APPLY EQUALLY FOR THE FORMER SCRIP AS WELL. THE LD. CIT(A) HAS, HOWEVER, IN CONTRADISTINCTION TO HIS DECISION QUA ELTROL LTD., ALLOWED THE ASSESSEES RELIEF IN RESPECT OF THE GAIN ARISING ON RAMAKRISHNA FINCAP LTD . THE SAME THUS COULD IN ANY CASE BE A SUBJECT MATTER OF THE R EVENUES APPEAL, AND NOT THAT BY THE ASSESSEE. THE REVENUES APPEAL FOR A.Y. 2005-06 IS OUTSTANDING BEFORE THE G BENCH OF THE TRIBUNAL, AND IS YET TO BE DECIDED. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. WE SHALL TAKE UP EACH OF THE TWO ISSUES BEING RAISED BY THE ASSESSEE IN SERIATIM: A) THE TRIBUNAL HAS VIDE ITS IMPUGNED ORDER UPHELD THE REVENUES ACTION AS VALID, STATING ITS REASONS AND, FURTHER, RELYING ON TWO DECISIONS BY THE HONBLE HIGH COURTS CITED SUPRA (PARA 5, PGS. 1 6 TO 18 OF THE ORDER). ITS STANDS EXPLICITLY HELD IN ANIL KUMAR BHATIA (SUPRA) THAT THE PURVIEW OF ASSESSMENT U/S.153A IS TO ASSESS THE TOTAL INCOME FOR ALL THE YEARS COVERED BY THE SECTION, I.E., IRRESPECTIVE OF WHETHER THE A SSESSMENT IN THEIR RESPECT 3 MA NOS. 310 TO 315/MUM/2014 ZIAUDDIN A. SIDDIQUE VS. JT. CIT STANDS ABATED OR NOT. THE ABATEMENT, ITS STAND FURT HER EXPLAINED, IS TO AVOID ANY PARALLEL PROCEEDINGS. THERE ARE AS SUCH NO FETT ERS ON THE POWER OF THE ASSESSING OFFICER (A.O.) TO ASSESS THE TOTAL INCOME FOR THE RELEVANT YEARS. LIKEWISE, IS A MANDATE OF AHURA HOLDINGS (SUPRA). IT IS THE RATIO OF THE DECISION THAT IS RELEVANT AND BINDING, AND NOT THE FACTS PER SE , WHICH COULD BE DIFFERENT FROM CASE TO CASE, SO THAT THE ASSESSE E SEEKING TO IMPUGN THE TRIBUNALS ORDER ON THE BASIS OF DIFFERING FACTS, I S, IN OUR VIEW INCORRECT. FURTHER, THE ASSESSMENT FOR A.YS. 2002-03 AND 200 3-04 IS U/S. 143(1), WHICH CANNOT BE REGARDED AS AN ASSESSMENT (REFER: ASST. CIT VS. RAJESH JHAVERI STOCK BROKERS (P.) LTD. [2007] 291 ITR 500 (SC)). AGAIN, THOUGH THE ASSESSMENT FOR A.Y. 2004-05 IS U/S.143(3) (DATE D 28.12.2006), THERE IS NO DISCUSSION WHATSOEVER IN THE ASSESSMENT ORDER NO R ANY CASE QUA APPLICATION OF ANY MIND IN THE MATTER BY THE A.O. S TANDS MADE OUT BEFORE US DURING HEARING. WE SAY SO AS, WITHOUT DOUBT, SECTIO N 153A COULD NOT POSSIBLY ALLOW REVIEW OF AN ASSESSMENT BY THE ASSES SING AUTHORITY. JURISDICTION FOR ASSESSMENT U/S.153A IS ASSUMED ON INITIATION AND CONDUCT OF A VALID SEARCH, THE MATERIAL INCRIMINATING OR OTHERWISE, WHICH CATEGORIZATION IS ITSELF SUBJECTIVE IN NATURE, WOUL D BE ONLY INCIDENTAL. AN INCRIMINATING MATERIAL COULD EVEN OTHERWISE BE EXPL AINED IN ASSESSMENT, SO THAT IT NO LONGER REMAINS SO. A JURISDICTION ONCE A SSUMED COULD NOT BE LOST ON ACCOUNT OF MATTERS SUBSEQUENT, I.E., THE MATERIA L FOUND, IF ANY, DURING SEARCH, OR ITS NATURE, OR CONTENTIONS RAISED IN RE SPECT THEREOF IN ASSESSMENT, ETC., WHICH MAY FURTHER BE APPROVED OR DISAPPROVED IN THE APPELLATE PROCEEDINGS. ASSESSMENT OF INCOME, IT MUST BE APPRE CIATED, IS IN ANY CASE TO BE BASED ON MATERIALS, APPLYING THE LAW IN THE M ATER. EVEN CONSIDERING THAT TWO POINTS OF VIEW ARE POSSIBLE ON THE SUBJECT , THE TRIBUNAL IS BOUND TO FOLLOW THAT WHICH APPEALS ITS CONSCIENCE, AS EXPLAI NED BY IT WITH REFERENCE TO THE DECISION IN THE CASE OF KANEL OIL & EXPORT INDS. LTD. VS. JT. CIT [2009] 121 ITD 596 (AHD.) (TM). WE ARE, BY STATING SO, WE MAY CLARIFY, NOT EXPANDING THE SCOPE OF OUR DECISION, BEING CAUT IOUS THAT WE ARE IN RECTIFICATION PROCEEDINGS, THE SCOPE OF WHICH IS SE VERELY LIMITED, BUT ONLY EXPLAINING IT. THE SAME COULD BE CHALLENGED UNDER R EVIEW PROCEEDINGS. THE ASSESSEES OBJECTION IS WITHOUT MERIT, AND IS ACCOR DINGLY REJECTED. WE ALSO DRAW SUPPORT FROM THE DECISIONS IN THE CASE OF CIT VS. RAMESH ELECTRIC & TRADING CO. [1993] 203 ITR 497 (BOM) AND CORROSSION ROADLINES VS. DY. CIT [2005] 92 ITD 181 (PUNE) (TM). 4 MA NOS. 310 TO 315/MUM/2014 ZIAUDDIN A. SIDDIQUE VS. JT. CIT B) IN-AS-MUCH AS THE TRIBUNAL HAS DECIDED ON A MATT ER AND WHICH WAS NOT BEFORE IT, OR ARISING OUT OF A MATTER BEFORE IT , THERE HAS CLEARLY BEEN A MISTAKE APPARENT FROM RECORED IN ITS ORDER. ACCORDI NGLY, THE WORDS THOUGH THE SCRIP FOR AY 2005-06 IS DIFFERENT, RAMAKRISHNA FINCAP LTD ., OUR DECISION WOULD HAVE EQUAL APPLICATION FOR THE SAME AS WELL. IN FACT, NO SEPARATE ARGUMENTS WERE ALSO MADE IN RESPECT THEREO F BEFORE US. APPEARING AT PARA 3.8 (PG. 15) OF ITS ORDER WOULD STAND TO BE OMITTED, AND IS DIRECTED TO BE SO. WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES MISCELLANEOUS APPL ICATIONS FOR A.YS. 2002-03 TO 2004-05 ARE DISMISSED, WHILE THAT FOR A.Y. 2005-06 IS ALLOWED TO THE EXTENT AND IN THE MANNER INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON DECEMBER 10, 2014 SD/- SD/- (VIJAY PAL RAO) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER ! +# MUMBAI; ,' DATED : 10.12.2014 .'../ ROSHANI , SR. PS !'#$% &%'# / COPY OF THE ORDER FORWARDED TO : 1. - / THE APPLICANT 2. ./- / THE RESPONDENT 3. ! 0% ( ) / THE CIT(A) 4. ! 0% / CIT - CONCERNED 5. 3 4 .%'56 , & 56) , ! +# / DR, ITAT, MUMBAI 6. 4 78 9 # / GUARD FILE ( / BY ORDER, )/(* (DY./ASSTT. REGISTRAR) , ! +# / ITAT, MUMBAI