ACIT, CC-XVIII, Kolkata, Kolkata V. Mahesh Kumar Nangalia, Kolkata

MA 62/KOL/2016

• Counselvise Citation: [2016] 123 COUNSELVISE.COM (IT) 5449 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-08-2016
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: 2002-2003
• Appeal Filed On: 11-05-2016
• Court: TRIBUNAL
• Keywords: Search and seizure; Period of limitation; Question of law; Time period of passing order
• Section: 132

Judgement Text

1 MA NO. 62 & 63/KOL/2016 M K. NANGALIA AY 2002-03 & 2004-05 IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA [BEFORE SHRI M. BALAGANESH, AM & SHRI S. S. VISWAN ETHRA RAVI, JM] M.A. NOS. 62 & 63/KOL/2016 I.T.A NSO.78 & 79/KOL/2012 ASSESSMENT YEARS: 2002-03 & 2004-05 ASSISTANT COMMISSIONER OF INCOME-TAX, VS. MAHESH KUMAR NANGALIA CENTRAL CIRCLE-XVIII, KOLKATA. (PAN: AEYPN4179F ) ( APPLICANT ) ( RESPONDENT ) DATE OF HEARING: 01.07.2016 DATE OF PRONOUNCEMENT: 10.08.2016 FOR THE APPLICANT: SHRI RAJAT KUMAR KUREEL, SR . DR FOR THE RESPONDENT: SHRI K. M. ROY, A.R ORDER PER SHRI M. BALAGANESH, AM: BY VIRTUE OF THESE MISC. APPLICATIONS THE REVENUE B ROUGHT TO THE NOTICE OF THIS TRIBUNAL THAT THE ORDER PASSED BY THIS TRIBUNAL DAT ED 18.11.2015 WAS ERRONEOUS INASMUCH AS THE TRIBUNAL HAD HELD THAT THERE WAS NO SEARCH W ARRANT IN THE NAME OF THE ASSESSEE FOR EXECUTION OF THE SAME ON 17.04.2007 AND ACCORDINGLY , THE ASSESSMENT FRAMED ON 31.12.2009 WAS BARRED BY LIMITATION. THE REVENUE IS SEEKING TO DISPUTE THIS PARTICULAR FINDING OF THE TRIBUNAL. 2. THE BRIEF FACTS OF THE ISSUE ARE THAT A WARRANT OF AUTHORIZATION U/S. 132 OF THE ACT WAS ISSUED IN THE NAME OF THE ASSESSEE AND A SEARCH WAS CONDUCTED ON 28.03.2007 WHICH GOT CONCLUDED ON 29.03.2007. SUBSEQUENTLY, ANOTHER WARRANT OF AUTHORIZATION WAS ISSUED IN THE JOINT NAME OF THE MRS. PREMLATA NANGALIA (WI FE OF THE ASSESSEE) AND SHRI MAHESH KUMAR NANGALIA (ASSESSEE HEREIN) IN ORDER TO VERIFY THE LOCKER NO. 34 WITH UCO BANK, ALIPORE, BELVEDERE ROAD, KOLKATA-700 027. PURSUANT TO THIS SECOND WARRANT A SEARCH WAS CONDUCTED ON 17.04.2007 BY DRAWING A PANCHANAMA IN THE NAME OF LOCKER NO. 34 WITH UCO BANK, ALIPORE, BELVEDERE ROAD, KOLKATA-700 027 WHICH GOT CONCLUDED ON 17.04.2007 ITSELF. THE SEARCH AND SEIZURE WAS FRAM ED BY THE LD. AO ON 31.12.2009 WHICH WAS WITHIN 21 MONTHS FROM THE END OF THE FY IN WHIC H LAST OF THE PANCHANAMA WAS DRAWN. 2 MA NO. 62 & 63/KOL/2016 M K. NANGALIA AY 2002-03 & 2004-05 ACCORDING TO LD. AO, THE ASSESSMENT FRAMED ON 31.12 .2009 WAS WELL WITHIN THE TIME PRESCRIBED IN THE STATUTE. 3. THE LD. DR IN HIS MISC. PETITION BROUGHT TO TH E ATTENTION OF THIS BENCH A COPY OF FORM NO. 45 BEING THE WARRANT OF AUTHORIZATION ISSU ED ON 30.03.2007 IN THE JOINT NAME OF ASSESSEE AND HIS WIFE WHERE THE PREMISES TO SEARCH I.E. THE LOCKER NO. 34 WITH UCO BANK, ALIPORE, BELVEDERE ROAD, KOLKATA-700 027 WAS ALSO D ULY MENTIONED. WHEN THE LOCKER NO. 34 WAS SEARCHED ON 17.04.2007 A PANCHANAMA WAS DULY DRAWN AND BOTH THE SEARCH WARRANT DATED 30.03.2007 AND THE PANCHANAMA DRAWN O N 17.04.2007 WERE SIGNED BY THE WIFE OF THE ASSESSEE SMT. PREMLATA NANGALIA. HENCE , THE FINDING RECORDED BY THE TRIBUNAL IN ITS ORDER DATED 18.11.2015 THAT THE SECOND SEARC H WARRANT AND PANCHANAMA WAS NOT SIGNED BY THE ASSESSEE AND HENCE, THE SEARCH WAS NO T INTENDED TO BE CARRIED ON IN THE NAME OF THE ASSESSEE HEREIN, BUT INSTEAD WAS INTENDED ON LY TO BE CARRIED ON IN THE NAME OF THE ASSESSEES WIFE IS ERRONEOUS AND ACCORDINGLY, REQUI RES RECTIFICATION IN TERMS OF SECTION 254(2) OF THE ACT. ON A SPECIFIC QUERY FROM THE BE NCH WITH REGARD TO SUBSTANTIAL QUESTION OF LAW WHICH WERE RAISED BY THE REVENUE IN THESE M ISC. APPLICATIONS AND WHETHER THE SAME WOULD BE SUBJECT MATTER OF POWERS OF RECTIFICA TION BY THE TRIBUNAL IN TERMS OF SECTION 254(2) OF THE ACT, THE LD. DR FAIRLY CONCEDED THAT THE TRIBUNAL DOES NOT HAVE POWERS TO ADJUDICATE ON THE SUBSTANTIAL QUESTION OF LAW IN TH E RECTIFICATION PROCEEDINGS. 4. THE LD. AR VEHEMENTLY ARGUED THAT THERE WAS NO MISTAKE APPARENT FROM RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE ACT HAD CREPT IN IN THE EARLIER ORDER DATED 18.11.2015. ALL THESE FACTS BROUGHT OUT BY THE LD. DR WERE VERY MUCH IN THE KNOWLEDGE OF THE TRIBUNAL WHILE PASSING THE ORDER ON 18.11.20 15. ACCORDINGLY, HE OBJECTED TO THE MISC. PETITIONS FILED BY THE REVENUE ON THE GROUND THAT THE REVENUE IS ONLY SEEKING A REVIEW OF ORDER OF THE TRIBUNAL, WHICH IS NOT PERMI SSIBLE IN LAW. 5. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MA TERIAL AVAILABLE ON RECORD. WE FIND THAT THIS TRIBUNAL IN PARA 4.1 OF ITS ORDER HA D STATED THAT T IS SEEN FROM THE RECORDS THAT ANOTHER WARRANT OF AUTHORIZATION DATED 30-03-2 007 WAS ISSUED IN THE JOINT NAME OF 3 MA NO. 62 & 63/KOL/2016 M K. NANGALIA AY 2002-03 & 2004-05 MRS. PREM LATA NANGALIA (WIFE OF THE ASSESSEE HEREI N) AND SHRI MAHESH KUMAR NANGALIA (THE ASSESSEE HEREIN). HENCE IT IS IMPROPER ON THE PART OF THE LD DR TO S TATE THAT THE COPY OF FORM NO. 45 BEING WARRANT OF AUTHORIZATION DATED 30-03-2007 WAS NOT BROUGHT TO THE ATTENTION OF THIS TRIBUNAL WHILE PASSING THE ORDER DATED 18.11.2015. MOREOVER, WE FIND THAT THIS TRIBUNAL HAD TAKEN ONE VIEW BASED ON THE FACTS PRESENTED BEFORE IT AT THE TIME OF HEARING AND BASED ON MATERIALS AVAILABLE ON RECORD. THE SAME CANNOT BE SUBJECTED TO REVIEW IN THE GARB OF RECTIFICATION OF THE ORDER. INFACT WHAT IS CONTEMPLATED IN SECTION 254(2) OF THE ACT IS ONLY MISTAKES / ERRORS APPAREN T FROM THE FACE OF THE RECORD AND NOT WHICH REQUIRES ANY VERIFICATION OR INVESTIGATION OF THE FACTS AND READJUDICATION OF THE ISSUES. HENCE WE HOLD IN THE FACTS OF THE INSTANT CASE THERE IS NO ERROR OR MISTAKE WARRANTING ANY RECTIFICATION IN TERMS OF SECTION 25 4(2) OF THE ACT. MOREOVER, WE FIND THAT THE REVENUE HAD ALSO RAISED THE FOLLOWING SUBSTANTI AL QUESTION OF LAW IN ITS MISC. PETITIONS WHICH ARE REPRODUCED HEREINBELOW FOR THE SAKE OF CO NVENIENCE: I) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. ITAT HAS ERRED IN LAW IN HOLDING THAT NO WARRANT OF AUTHORIZATION WAS ISS UED AGAINST THE ASSESSEE WHICH WAS LAST EXECUTED ON 17.04.2007, ON THE BASIS OF THE PANCHNA MA AND WITHOUT CONSIDERING THE NAMES AS APPEARING IN THE WARRANT OF AUTHORIZATION FOR TH E SEARCH. II) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. ITAT HAS ERRED IN LAW IN CONSIDERING THE PANCHNAMA AND NOT THE WARRANT OF AUTHORIZATION FOR SEARCH FOR DETERMINING THE LIMITATION PERIOD OF THE ASSESSMENT S AS PRESCRIBED IN SEC. 153B OF THE ACT. III) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. ITAT HAS ERRED IN LAW IN HOLDING THAT THE ASSESSMENTS FOR THE AY 2002-03 & 2004-05 WERE BARRED BY LIMITATION. WE FIND THAT THE ISSUES INVOLVING SUBSTANTIAL QUEST IONS OF LAW ITSELF MAKES THE ISSUE DEBATABLE AND HENCE A DECISION ON DEBATABLE POINT O F LAW IS NOT A MISTAKE APPARENT FROM RECORD AND WOULD DEFINITELY FALL OUTSIDE THE SCOPE OF SECTION 254(2) OF THE ACT. 6. IN THE RESULT, BOTH THE MISC. APPLICATIONS OF R EVENUE ARE DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 10.08.201 6 SD/- SD/- (S.S. VISWANETHRA RAVI) (M. BALAGANESH) JUDICIAL MEMBER ACCOUNTAN T MEMBER DATED : 10TH AUGUST, 2016 JD.(SR.P.S.) 4 MA NO. 62 & 63/KOL/2016 M K. NANGALIA AY 2002-03 & 2004-05 COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT ACIT, C.C.-XVIII, KOLKATA. 2 RESPONDENT SHRI MAHESH KUMAR NANGALIA, 10, BELVED RE ROAD, FLAT - 6B, KOLKATA-700 027 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .