THE ACIT-1(1), Bhopal V. SHRI YOGESH PATERIYA, Bhopal

MA 58/Ind/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3124 (ITAT-INDORE)
• Duration Of Justice: 4 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-11-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 19-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K G GOYAL
• Section: 143(3); 133A; 153A; 143(2); 254(2)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER MA NO.58/IND/2019 (ARISING OUT OF IT(SS)ANOS.86 TO 88/IND/2016) ASSESSMENT YEARS: 2006-07 TO 2008-09 ACIT,1(1) BHOPAL / VS. SHRI YOGESH PATERIYA PROP. RADIATION IMAGE COMMUNICATION M-704 VIJAY STAMBH, ZONE-I, BHOPAL ( REVENUE ) ( RE SPONDENT ) PAN: AHXPP4957H REVENUE BY SHRI K.G. GOYAL , SR. DR RESPONDENT BY SHRI SUMIT NEMA, SR. ADV. & SHRI GAGAN TIWARI, CA DATE OF HEARING: 22.11.2019 DATE OF PRONOUNCEMENT: 28.11.2019 / O R D E R PER MANISH BORAD, A.M: THIS MISCELLANEOUS APPLICATION U/S 254(2) OF THE INCOME TAX ACT HAS BEEN FILED BY THE REVENUE AGAINST T HE ORDER OF THE TRIBUNAL DATED 14.02.2019 IN IT(SS)A NOS . 86 TO 88/IND/2016. SHRI YOGESH PATERIA MANO.58/IND/2019 2 2. LEARNED DEPARTMENTAL REPRESENTATIVE (DR) VEHEMENTLY ARGUED REFERRING TO THE FOLLOWING SUBMISSIONS MADE I N THE MISC. APPLICATION CONTENDING THAT HON'BLE TRIBUNAL HAS COMMITTED MISTAKE OF LAW BY QUASHING THE PROCEEDINGS FOR A.Y. 2008-09 WHICH WERE INITIATED U/S 143(2) OF THE ACT AND NOT UNDER SECTION 153C OF THE ACT:- 1.THE APPLICANT HAD FILED AN APPEAL BEFORE THE HON' BLE I.T.A.T., INDORE BENCH AGAINST THE ORDER DATED 10.03.2016 OF THE CIT(A)- I, BHOPAL FOR THE ASSESSMENT YEAR 2008-09 WHEREIN T HE ADDITIONS MADE BY THE ASSESSING OFFICER ON ACCOUNT OF SUB CONTRACT TO BOYS OF RS.1,84,50,000/- PAYMENT PAID T O NIKITA FILMS OF RS.50,25,522/- AND PAYMENT MADE TO YASH DI GITAL OF RS.60,14,593/- WERE DELETED. 2. THE HON'BLE I.T.A.T. VIDE ORDER ITA NO.88/IND/20 16 DATED 14.02.2019 HAS QUASHED THE ASSESSMENT PROCEEDINGS U /S 153C R.W.S. 153A R.W.S. 143(3) OF THE ACT IN LIMINE BEING PROPER SATISFACTION NOTE WAS NOT RECORDED BY THE AO OF THE SEARCHED PERSON BEFORE HANDING OVER THE INCRIMINATING MATERI AL TO THE AO OF THE ASSESSEE FOR INITIATING ASSESSMENT PROCEEDIN GS U/S 153C OF THE ACT AS PER THE GUIDELINES ISSUED VIDE CIRCUL AR NO.24/2014 BY THE CBDT. 3. IN VIEW OF THE ABOVE, IT IS PRAYED BEFORE THE HO N'BLE TRIBUNAL THAT WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE INCOME TAX APPELLATE TRIBUNAL WAS JUSTIFIED IN DISMISSING THE APPEAL IN LIMINE WITHOUT GOING INTO THE MERITS OF THE CASE WHEN THE SEARCH WAS CONDUCTED IN THE CASE OF SHRI Y OGIRAJ SHARMA ON 07.09.2007 AND A SURVEY WAS CARRIED OUT A T THE PREMISES OF SHRI YOGIRAJ PATERIA ON 07.09.2007. THE REFORE, SINCE A SURVEY U/S 133A WAS CARRIED OUT IN THE CASE OF AS SESSEE IN F.Y. 2007-08, THEREFORE, PROCEEDINGS U/S 143(2) WER E TO BE INITIATED FOR A.Y. 2008-09. ALSO A.Y. 2008-09 WAS T HE YEAR OF SEARCH IN THE CASE OF SHRI YOGIRAJ SHARMA AND THERE FORE, FOR A.Y. 20002-03 TO A.Y. 2007-08, PROCEEDINGS U/S 153C WERE INITIATED & FOR A.Y. 2008-09 PROCEEDINGS U/S 143(2) WERE INIT IATED IN THE CASE OF YOGESH PATERIA. THEREFORE, PROCEEDINGS FOR A.Y. 2008-09 SHRI YOGESH PATERIA MANO.58/IND/2019 3 ARE NOT COVERED PROVISIONS U/S 153C OF THE ACT, AND CIRCULAR NO.24/2015 IS NOT APPLICABLE FOR A.Y. 2008-09. 4. THEREFORE, IN VIEW OF THE ABOVE, HON'BLE I.T.A.T . HAS COMMITTED MISTAKE OF LAW BY QUASHING THE PROCEEDING S FOR A.Y.2008-09, WHICH WERE INITIATED U/S 143(2) OF THE ACT AND NOT UNDER SECTION 153C OF THE ACT AND THEREFORE, THERE WAS NOT REQUIREMENT OF EXISTENCE OF SATISFACTION NOTE FOR A .Y. 2008-09. 5. IT IS PRAYED ACCORDINGLY THAT THE TRIBUNALS ORD ER IN ITA NO.88/IND/2016 DATED 14.02.2019 MAY KINDLY BE RECON SIDERED U/S 254(2) BY CONSIDERING THE ABOVE FACTS. SUITABLE ORDER MAY KINDLY BE QUASHED ON MERITS IN THE INSTANT CASE. 3. PER CONTRA LD. COUNSEL FOR THE ASSESSEE STRONGLY O PPOSED THE SUBMISSIONS MADE BY THE LD. DR AND SUBMITTED THAT THE ASSESSMENT ORDER FOR A.Y. 2008-09 WAS FRAMED U/S 153C R.W.S. 153A R.W.S. 143(3) OF THE ACT AND BY ISS UANCE OF NOTICE U/S 153C OF THE ACT ANT NOT U/S 143(2) OF THE ACT. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD PLACED BEFORE US. VIDE OUR ORDER DATED 14.02. 2019 WE QUASHED THE ASSESSMENT PROCEEDINGS FOR A.Y. 2008-09 CONDUCTED BY THE LD. AO U/S 153C R.W.S. 153A OF THE ACT, BY WAY OF ISSUANCE OF NOTICE U/S 153C R.W.S. 153A OF THE ACT. THE IMPUGNED ASSESSMENT ORDER FOR A.Y. 2008-09 WAS QUASHED SINCE NO PROPER SATISFACTION NOTE PROVIDED IN THE PROVISIONS OF LAW WAS RECORDED BY THE LD. AO OF THE SEARCHED PERSON MR. YOGIRAJ SHARMA BEFORE TRANSFERRING INFORMATION/DOCUMENTS PERTAINS TO THE ASSESSEE I.E. SHRI YOGESH PATERIA MANO.58/IND/2019 4 YOGESH PATERIA FOR INITIATION OF THE PROCEEDINGS U/S 1 53C OF THE ACT. 5. WE, THEREFORE, ARE OF THE VIEW THAT THE PRESENT M ISC. APPLICATION DOES NOT HAVE ANY MERIT, SINCE THE ASSESSM ENT PROCEEDINGS FOR A.Y. 2008-09 HAVE NOT BEEN INITIATED BY ISSUANCE OF NOTICE U/S 143(2) OF THE ACT AS CONTENDE D BY THE LD. DR BUT HAS BEEN ISSUED U/S 153C OF THE ACT AN D THE SAME HAS BEEN RIGHTLY OBSERVED BY THE TRIBUNAL BEFORE QUASHING THE ASSESSMENT PROCEEDINGS. 6. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY T HE REVENUE STANDS DISMISSED, AS PER THE TERMS INDICATED ABOVE. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 28 .11 . 2019. SD/- (KUL BHARAT) SD/- (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER INDORE; DATED : 28/11/2019 CTX? P.S/. . . COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR