The DCIT, Central Circle-1(3), Ahmedabad V. Suraj Impex Pvt.. Ltd., Ahmedabad

MA 57/AHD/2024

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 4987 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-08-2024
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 16-05-2024
• Assessment Year: 2010-2011
• Appeal Filed On: 28-02-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: WAY OF THESE MISCELLANEOUS APPLICATIONS SEEKING
• Keywords: Unexplained cash credit; Reassessment proceedings; Bogus
• Section: 153A; 254(2); 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “A” BENCH Before: Shri T.R. Senthil Kumar, Judicial Member And Shri Narendra Prasad Sinha, Accountant Member The DCIT, Central Circle-1(3), Ahmedabad (Appellant) Vs M/s. Suraj Enterprises Pvt. Ltd., Suraj House, Opp. Usmanpura Garden, Vidhyanagar Society, Usmanpura, Ahmedabad PAN No. AALCS2331N (Respondent) The DCIT, Central Circle-1(3), Ahmedabad (Appellant) Vs M/s. Suraj Impex Pvt. Ltd. Suraj House, Opp. Usmanpura Garden, Vidhyanagar Society, Usmanpura, Ahmedabad PAN No. AACCS9971R (Respondent) Assessee Represented: Shri Jignesh Parikh, A.R. Revenue Represented: Shri J. L. Bhatia, Sr. D.R. Date of hearing : 17-05-2024 Date of pronouncement : 14-08-2024 M.A. Nos: 55 & 56/Ahd/2024 (in IT(SS)A Nos: 7 & 8/Ahd/2019) Asst. Years: 2009-10 & 2010-11) M.A. Nos: 57 & 58/Ahd/2024 (in IT(SS)A Nos: 10 & 11/Ahd/2019) Asst. Years: 2010-11 & 2011-12) M.A. Nos. 55 to 58/Ahd/2024 A.Ys. 2009-10 to 11-12 DCIT Vs. Suraj Enterprises Pvt. Ltd. 2 आदेश/ORDER PER : T.R. SENTHIL KUMAR, JUDICIAL MEMBER:- These Miscellaneous Applications are filed by the Revenue as against the common order dated 30-11-2023 passed in IT(SS)A Nos. 7 & 8/Ahd/2019 for the Asst. Years 2009-10 & 2010-11 in the case of Suraj Enterprises Pvt. Ltd. and IT(SS)A Nos. 10 & 11/Ahd/2019 relating to Asst. Years 2010-11 & 2011-12 in the case of Suraj Impex Pvt. Ltd. 2. The Grounds of Appeal in M.A. No. 55/Ahd/2024 for Asst. Year 2009-10 in the case of Suraj Enterprises Pvt. Ltd. reads as under: “1. has erred in law and on facts in not appreciating the fact that as per direction contained in Instruction No. 1 of 2023 of the CBDT, time limit to reassess the income attributable to unexplained cash credit of Rs.3,00,00,000/- has already been lapsed in this case and suitable directions u/s 150 of the Income Tax Act are required to be delivered by Hon'ble ITAT to initiate reassessment proceedings u/s 147 of the Act to reassess the case of the assessee for AY 2009-10.” 2.1. The Grounds of Appeal in M.A. No. 56/Ahd/2024 for Asst. Year 2010-11 Suraj Enterprises Pvt. Ltd reads as under: “1. On the facts and in circumstances of the case and in law, the Hon'ble ITAT has erred in law and on facts in not appreciating the fact that as per direction contained in Instruction No. 1 of 2023 of the CBDT, time limit to reassess the income attributable to total transactions of Rs.1,61,19,375/on (bogus loss on sale of listed shares to related parties of Rs.30,00,000/-, Bogus loss on sale of unlisted shares to related parties of Rs.1,19,85,000/- and rent expenses of Rs.11,34,375) has already been lapsed in this case and suitable directions u/s 150 of the Income Tax Act are required to be delivered by Hon'ble ITAT to initiate reassessment proceedings u/s 147 of the Act to reassess the case of the assessee for AY 2010- 11.” 2.2. The Grounds of Appeal in M.A. No. 57/Ahd/2024 for Asst. Year 2010-11 Suraj Impex Pvt. Ltd reads as under: M.A. Nos. 55 to 58/Ahd/2024 A.Ys. 2009-10 to 11-12 DCIT Vs. Suraj Enterprises Pvt. Ltd. 3 “1. On the facts and in circumstances of the case and in law, the Hon'ble ITAT has erred in law and on facts in not appreciating the fact that as per direction contained in Instruction No. 1 of 2023 of the CBDT, time limit to reassess the income attributable to total transactions of Rs. 1,80,00,000/- on bogus loss on sale of unlisted shares to related parties has already been lapsed in this case and suitable directions u/s 150 of the Income Tax Act are required to be delivered by Hon'ble ITAT to initiate reassessment proceedings u/s 147 of the Act to reassess the case of the assessee for AY 2010-11.” 2.3. The Grounds of Appeal in M.A. No. 58/Ahd/2024 for Asst. Year 2011-12 Suraj Impex Pvt. Ltd reads as under: “1. On the facts and in circumstances of the case and in law, the Hon'ble ITAT has erred in law and on facts in not appreciating the fact that as per direction contained in Instruction No. 1 of 2023 of the CBDT, time limit to reassess the Income attributable to total transactions of Rs.5,56,19,000/ on account of u/s.56(2)(viia)(ii) of the act has already been lapsed in this case and suitable directions u/s 150 of the Income Tax Act are required to be delivered by Hon'ble ITAT to initiate reassessment proceedings u/s 147 of the Act to reassess the case of the assessee for AY 2011-12.” 3. The Revenue by way of these Miscellaneous Applications seeking reconsideration of ITAT common order dated 30.11.2023 in the light of the principles laid down by the Hon’ble Apex Court in the case of PCIT Vs. Abhisar Buildwell Pvt. Ltd. Thus the Revenue is seeking direction from the Tribunal for initiating the proceedings u/s. 148 of the Act. 4. Per contra Ld. A.R. appearing for the assessee submitted that there is no mistake apparent record and therefore the Misc. Application filed by the Revenue is not sustainable in law. 5. We have given our thoughtful consideration and perused the materials available on record. In Para 3.2 of the impugned order, it is clearly observed that the Ld. CIT(A) called for a Remand Report from the Assessing Officer. Even, there was no reference of any M.A. Nos. 55 to 58/Ahd/2024 A.Ys. 2009-10 to 11-12 DCIT Vs. Suraj Enterprises Pvt. Ltd. 4 seized material or incriminating document found during the course of search action, based upon which impugned addition was made by the Assessing Officer. Similarly at Para 10.1 of the impugned order, it is observed perusal of the assessment order clearly shows that there is no reference about incriminating/seized material found during the course of search. Thus the very basis of assessment itself is against the provisions of Section 153C of the Act. Therefore following the Supreme Court Judgment in the case of Abhisar Buildwell Pvt. Ltd., we dismissed the appeal filed by the Revenue. 6. In our considered view, the provisions of section 254(2) of the Act empowers the ITAT to rectify any type of mistake in its order provided it should be apparent from the record. The mistake apparent from the record has been the subject matter of continuous litigation. The Hon’ble Courts time and again has defined the apparent mistakes through judicial pronouncements. As such, the apparent mistake refers to those errors or inconsistencies that is evident from the face of the documents/order of the authority in respect of which two views are not possible. The apparent mistake can be in the form of calculation, data, wrong assumption of facts, misinterpretation of the provisions of law, misreporting of income, deduction, or any other relevant information. However, the mistakes which require arguments, debate, and evaluation of law/facts in its determination, the same cannot be referred as mistake apparent from the record. Likewise, in the event of any order given by the ITAT which is alleged to be based on the wrong assumption of facts M.A. Nos. 55 to 58/Ahd/2024 A.Ys. 2009-10 to 11-12 DCIT Vs. Suraj Enterprises Pvt. Ltd. 5 or law, but after due application of mind, then the same cannot be termed as a mistake apparent from the record. It is because the view has been formed by the ITAT after considering the necessary facts and the law on the point of dispute, then the same cannot be reviewed again in the garb of apparent mistake. In other words, the error of judgement cannot be described as a mistake apparent from record. In such a situation, the aggrieved party should approach the higher forum for the redressal of the issue involved in the dispute. 6.1. Coming to the facts on hand, at the outset, we note that the Hon’ble Apex Court in the case of Abhisar Buildwell Pvt. Ltd. (Supra) has nowhere directed the AO to initiate the proceedings u/s 147 of the Act, with respect to the unabated AY where no document of incriminating nature was found. As such, the Hon’ble Supreme Court has saved the power of the Revenue with respect to unabated AY, where no document of incriminating nature was found, to exercise the authority subject to the fulfillment of the conditions specified u/s 147/148 of the Act. As such, the Revenue has to decide to take up the call in-pursuance of the provisions of section147 of the Act. At this stage, it is important to note that the revenue has sought a clarification from the Hon’ble Apex Court with respect to the issue on the initiation of the proceedings under section 147 of the Act in the judgment of Abhisar Buildwell Pvt. Ltd. (Supra) but the same was dismissed as reported in 150 taxmann.com 257 by observing as under: "(a) This Hon'ble Court may clarify that the waiver of limitation as stipulated in section 150(2) is to be read in respect of the date of issue of notice for reassessment under section 148 (i.e.) if as on the date the assessment under M.A. Nos. 55 to 58/Ahd/2024 A.Ys. 2009-10 to 11-12 DCIT Vs. Suraj Enterprises Pvt. Ltd. 6 section 153A or section 153C was passed, a notice under section 148 could have been issued as per the law then in force, then fresh proceedings for reassessment of such income not arising from the incriminating material found in search can now be initiated pursuant to the findings of this Hon'ble Court in the present appeals/application and may further clarify as follows: (i) That the findings in para 11 and 14 would apply to all the proceedings pending in all the forums including before this Hon'ble Court. (ii) That even though the appeals of the Revenue are dismissed in respect of assessments passed under 153A and 153C, in the absence of incriminating material found during the search, in respect of such income which was found to have escaped assessment other than through incriminating material, the assessing officers would be entitled to reassess such income in terms of section 147/148 read with section 150. (iii) That the Assessing Officer, may if found necessary initiate fresh proceedings within 60 days from date of disposal of this application following the procedure stipulated in section 147-151 of the Act as is in force now." 2. Having gone through the averments made in the application and the prayers, we are of the opinion that the prayers sought can be said to be in the form of review which requires detail consideration at length looking into the importance of the matter. Therefore, the present application in the form of clarification is not entertained and we relegate the Revenue to file an appropriate are view application for the relief sought in the present application and as and when such review application is filed the same can be heard in the open court. 3. In view of the above and without further entering into the merits of the application and/or expressing anything on merits on the prayers sought in the present application, the present application is not entertained and we relegate the Revenue to file an appropriate review application seeking the reliefs which are sought in the present application and as and when such review application is filed the same be heard and decided and disposed of in the open court. At the cost of repetition, we observe that as we have not entered into the merits of the present application and we relegate the Revenue to file an appropriate review application, there view application be decided and disposed of in accordance with law and on its own merits. With this present application stands disposed of.” M.A. Nos. 55 to 58/Ahd/2024 A.Ys. 2009-10 to 11-12 DCIT Vs. Suraj Enterprises Pvt. Ltd. 7 7. As such, in our humble understanding, there was no direction issued by the Hon’ble Apex Court for initiating the proceedings under section 147 of the Act with respect to unabated assessment years where no document of incriminating nature was found. Accordingly, we are of the view that there is no error in the order of the ITAT, within the meaning of the provisions of section 254(2) of the Act, requiring our interference. Hence, the Miscellaneous Applications filed by the Revenue are hereby dismissed. 8. In the result, the Miscellaneous Applications filed by the Revenue are hereby dismissed. Order pronounced in the open court on 14 -08-2024 Sd/- Sd/- (NARENDRA PRASAD SINHA) (T.R. SENTHIL KUMAR) ACCOUNTANT MEMBER True Copy JUDICIAL MEMBER Ahmedabad : Dated 14/08/2024 आदेश कȧ ĤǓतͧलͪप अĒेͪषत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/आदेश से, उप/सहायक पंजीकार आयकर अपीलȣय अͬधकरण, अहमदाबाद