Smt. Heera Mani Agarwal, Kanpur V. Asstt. Commissioner of Income Tax, Kanpur

MA 41/LKW/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3325 (ITAT-LUCKNOW)
• Duration Of Justice: 11 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 08-08-2014
• Assessment Year: 2001-2002
• Appeal Filed On: 12-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Assessee Lawyers: S K GARG SHRI P K KAPOOR
• Keywords: Search and seizure; Opportunity of being heard
• Section: 139

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER M.A. NO.41 /LKW/20 14 (ARISING OUT OF I.T.A.NO.584/LKW/2011) ASSESSMENT YEAR:2001 - 02 & M.A. NO.42 /LKW/20 14 (ARISING OUT OF I.T.A.NO.586/LKW/2011) ASSESSMENT YEAR:2003 - 04 & M.A. NO.43 /LKW/20 14 (ARISING OUT OF I.T.A.NO.587/LKW/2011) ASSESSMENT YEAR:2005 - 06 & M.A. NO.44 /LKW/20 14 (ARISING OUT OF I.T.A.NO.588/LKW/2011) ASSESSMENT YEAR:2006 - 07 SMT. HEERA MANI AGARWAL, 112/284, SWAROOP NAGAR, KANPUR. PAN:AANPA5148A VS. A.C.I.T., CENTRAL CIRCLE - VI, KANPUR. (A PPLICANT ) (RESPONDENT) APPLICANT BY SHRI S. K. GARG, ADVOCATE SHRI P. K. KAPOOR, C.A. RESPONDENT BY SHRI ALOK MITRA, D.R. DATE OF HEARING 08/08/2014 DATE OF PRONOUNCEMENT 1 8 /09/2014 O R D E R PER A. K. GARODIA, A.M. ALL THE SE FOUR MISC. APPLICATIONS HAVE BEEN FILED BY THE ASSESSEE POINTING OUT CERTAIN APPARENT MISTAKES IN THE COMBINED TRIBUNAL ORDER DATED 28/02/2014. IN THESE MISC. APPLICATIONS , THIS IS THE CONTENTION RAISED BY THE ASSESSEE THAT THE TRIBUNAL DECISION REGARDING CO NFIRMATION OF ADDITION OF RS.59,000/ - IS CONTRARY TO THE OBSERVATIONS/PRONOUNCEMENT MADE IN THE OPEN COURT AND THEREFORE, THIS IS A N APPARENT MISTAKE RECTIFIABLE U/S 254(2) OF THE [ 2 ] ACT BUT THE ASSESSEE HAS NOT BROUGHT ON RECORD ANY EVIDENCE IN SUPPORT OF TH IS CONTENTION THAT CONTRARY PRONOUNCEMENT WAS MADE BY THE TRIBUNAL IN COURSE OF HEARING OF THESE APPEALS AND HENCE, WE DO NOT FIND ANY MERIT IN THIS CONTENTION OF THE ASSESSEE AND THEREFORE, THE SAME IS REJECTED. 2. ANOTHER CONTENTION RAISED BY THE ASSESSE E IS THAT GROUND NO. 8 & 9 WERE NOT CONSIDERED AND DECIDED. IN COURSE OF HEARING OF THESE MISC. APPLICATIONS, A QUERY WAS RAISED BY THE BENCH AS TO WHETHER THESE ISSUES WERE RAISED BY THE ASSESSEE BEFORE THE CIT(A) AND WHAT IS THE DECISION OF CIT(A) ON TH IS ASPECT. IN REPLY, IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT THIS IS A LEGAL ISSUE WHICH WAS NOT RAISED BEFORE CIT(A) BUT IT CAN BE VERY MUCH RAISED BEFORE THE TRIBUNAL AND THEREFORE, THIS ISSUE COULD HAVE BEEN DECIDED BY THE TRIBUNAL. 3. AS AGAINST THIS, IT WAS SUBMITTED BY LEARNED D.R. OF THE REVENUE THAT SINCE THE ISSUE WAS NOT RAISED BEFORE THE CIT(A), THIS IS A NEW ISSUE AND HENCE, THE MATTER MAY BE RESTORED TO CIT(A) FOR DECISION. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. ADMITTEDLY GROUND NO. 8 & 9 WERE RAISED BY THE ASSESSEE BEFORE THE TRIBUNAL AND FOR THE SAKE OF READY REFERENCE, THE SE GROUNDS ARE REPRODUCED BELOW : 8. BECAUSE IN ANY CASE AND WITHOUT PREJUDICE TO THE CONTENTION RAISED IN THE FOREGOING GROUNDS THERE BEING NO UNDISCLOSED INCOME HAVING BEEN FOUND AS A RESULT OF SEARCH AND SEIZURE ACTION (VALIDITY OF WHICH IS ALREADY IN DISPUTE), THE ASSESSMENT THAT HAD BEEN MADE EARLIER (WITH REFERENCE TO THE 'RETURN' FILED UNDER SECTION 139) CANNOT BE SAID TO HAVE ABATED AND TH E ASSESSMENT ORDER DATED 31.12.2008 AND THE ADDITION AS STOOD COMPRISED THEREIN ARE VITIATED IN LAW. 9. BECAUSE DEPOSITS IN BANK ACCOUNT STOOD DULY DISCLOSED IN THE 'RETURN' FILED ORIGINALLY UNDER SECTION 139 READ WITH THE DOCUMENTS ACCOMPANYING THE SAME A ND THERE BEING NO MATERIAL FOUND DURING THE COURSE OF ALLEGED SEARCH AND SEIZURE ACTION UNDER SECTION 132(1) WHICH COULD GO TO IMPINGE UPON THE GENUINENESS OF THE SAID DEPOSITS, THE ADDITION OF SUMS AGGREGATING RS.59,000/ - IN THE BANK ACCOUNT OF THE 'APPEL LANT' COULD NOT HAVE BEEN MADE/UPHELD BY THE AUTHORITIES BELOW. [ 3 ] 5. ADMITTEDLY, THESE GROUNDS WERE NOT DECIDED AS PER THE IMPUGNED TRIBUNAL ORDER AND HENCE, THIS IS A MISTAKE APPARENT FROM THE RECORD AND WE RECTIFY THE SAME BY DECIDING THESE GROUNDS. 6. WE FIND THAT THE ISSUE RAISED BY THE ASSESSEE IS A LEGAL ISSUE AND THEREFORE, THIS CAN BE RAISED BEFORE THE TRIBUNAL FOR THE FIRST TIME ALSO BUT SINCE THIS ISSUE WAS NOT RAISED BEFORE THE CIT(A), WE FEEL IT PROPER THAT THE MATTER SHOULD GO TO CIT(A) FOR HI S DECISION ON THIS ISSUE. WE ALSO FIND THAT SINCE THE VALIDITY OF THE ASSESSMENT ORDERS ITSELF IS IN QUESTION AS PER THESE TWO GROUNDS OF APPEAL, THE TRIBUNAL DECISION ON MERIT OF THE ADDITION CANNOT REMAIN VALID BEFORE A DECISION ON THIS LEGAL ASPECT. HENCE, WE RESTORE THE ENTIRE MATTER BACK TO CIT(A) FOR FRESH DECISION ON THIS ASPECT, WHICH IS RAISE D BY THE ASSESSEE BEFORE THE TRIBUNAL AS PER GROUND NO. 8 & 9 AND IF IT IS FOUND THAT THE ASSESSEE SUCCEEDS ON THIS ISSUE, THEN THE ASSESSMENT GOES IN FULL BUT IF IT IS FOUND THAT THE ASSESSEE DOES NOT SUCCEED ON THIS ISSUE AND IT IS HELD BY CIT(A) THAT TH E IMPUGNED ASSESSMENT ORDERS ARE VALID THEN HE SHOULD DECIDE THE ISSUE ON MERIT ALSO AFRESH AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES . HENCE, IN THE RESULT, THESE FOUR APPEALS OF THE ASSESSEE STAND ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, ALL THE MISC. APPLICATIONS ARE ALLOWED IN THE TERMS INDICATED ABOVE. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 1 8 /09/2014. *C.L.SINGH COPY OF THE O RDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A ) 5. DR, ITAT, LUCKNOW ASSTT. REGISTRAR