ACIT, V. Bajrang post Graduate Degree College,

MA 68/LKW/2009

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 5393 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 3 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-03-2011
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 25-03-2011
• Assessment Year: misc
• Appeal Filed On: 26-11-2009
• Court: TRIBUNAL
• Department Lawyers: P K B AJAJ
• Assessee Lawyers: R D SINGH VICE PRINCIPLE
• Keywords: Retrospective amendment; Block assessment
• Section: 132; 144

Judgement Text

IN THE INCOME TAX A IN THE INCOME TAX A IN THE INCOME TAX A IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH PPELLATE TRIBUNAL LUCKNOW BENCH PPELLATE TRIBUNAL LUCKNOW BENCH PPELLATE TRIBUNAL LUCKNOW BENCH, LUCKNOW , LUCKNOW , LUCKNOW , LUCKNOW BEFORE HONBLE SHRI H.L. KARWA BEFORE HONBLE SHRI H.L. KARWA BEFORE HONBLE SHRI H.L. KARWA BEFORE HONBLE SHRI H.L. KARWA AND HONBLE SHRI N.K. SAINI AND HONBLE SHRI N.K. SAINI AND HONBLE SHRI N.K. SAINI AND HONBLE SHRI N.K. SAINI MA NO.68/LKW/2009 [ARISING OUT OF ITA NO. 224/LUC/2006] BLOCK PERIOD : 1.4.1996 TO 16.12.2002 ACIT CIRCLE, SULTANPUR V. BAJRANG POST GRADUATE DEGREE COLLEGE KUNDA PRATAPGARH PAN/GIR:B-613 (APPLICANT) (RESPONDENT) APPLICANT BY: SHRI P. K. BAJAJ, D.R. RESPONDENT BY: SHRI R D SINGH, VICE PRINCIPLE O R D E R PER H. L. KARWA: THIS MISCELLANEOUS APPLICATION BY THE REVENUE ARIS ES OUT OF THE ORDER OF THE TRIBUNAL DATED 28.2.2007 PASSED IN ITA NO. 224/LUC/ 2006 RELATING TO THE BLOCK PERIOD 1.4.1996 TO 16.12.2002. 2. IN THIS MISCELLANEOUS APPLICATION, SHRI HIMANSHU KU MAR PANDEY, DY. COMMISSIONER OF INCOME-TAX, CIRCLE, SULTANPUR VIDE HIS APPLICATION DATED 24.11.2009 HAS STATED AS UNDER:- THE HON'BLE INCOME-TAX APPELLATE TRIBUNAL LUCKNOW BENCH 'B' LUCKNOW VIDE PARA 4 OF ITS ORDER DATED 28.02.2007 AND FOLLO WING THE ORDER DATED 14.07.2006 OF HON'BLE ALLAHABAD HIGH COURT IN WRIT PETITION NUMBER 5015(MB) OF 2004 IN THE CASE BAJRANG DEGREE COLLEGE VS. A.C.I.T., SULTANPUR HAD QUASHED THE ASSESSMENT ORDER U/S 158B C/144 DATED 13.12.2004 PASSED IN PURSUANCE OF PROCEEDINGS INITI ATED U/S 158BC. 2. THE HON'BLE ITAT, WHILE DECIDING THE ISSUE, HAD OBSERVED AS UNDER IN PARA 3 AND 4 OF ITS ORDER DATED 28/02/2007:- 'WE HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE LD. REPRESENTATIVES OF THE PARTIES AND THE ORDERS OF THE AUTHORITIES BE LOW. WE OBSERVE THAT NO SPECIFIC GROUND HAS BEEN TAKEN BY THE ASSESSEE I N THE GROUNDS OF :-2-: APPEAL THAT PROCEEDINGS U/S 158BC OF THE ACT WERE I NITIATED PURSUANT TO WARRANT OF AUTHORIZATION ISSUED BY THE ADDITIONAL D IRECTOR OF INCOME-TAX (INVESTIGATION), ALLAHABAD AND THE ADDITIONAL DIREC TOR OF INCOME-TAX (INVESTIGATION), ALLAHABAD IS NOT COMPETENT TO ISSU E AUTHORIZATION U/S 132(1) OF THE ACT, BUT THE FACT IS THAT THE ABOVE I SSUE IS COVERED BY THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT D ATED 14.07.2006 (SUPRA). THEIR LORDSHIPS OF THE HON'BLE JURISDICTIO NAL HIGH COURT HAVE HELD IN THE ABOVE ORDER THAT WARRANT OF AUTHORIZATION IS SUED BY THE ADDITIONAL DIRECTOR (INVESTIGATION) CANNOT BE SAID TO BE LEGAL AUTHORIZATION AND SEARCH MADE IN PURSUANCE OF SUCH AUTHORIZATION COUL D NOT BE SAVED. THEREFORE, THE ENTIRE PROCEEDINGS OF SEARCH AND INI TIATION OF BLOCK ASSESSMENT PROCEEDINGS AND ISSUANCE OF NOTICE U/S 1 58BC OF THE ACT ARE WHOLLY WITHOUT JURISDICTION AND AUTHORITY, AND CONS EQUENTLY THEY ARE LIABLE TO BE SET ASIDE. THEIR LORDSHIPS OF THE HIGH COURT HAVE QUASHED THE ENTIRE PROCEEDINGS OF SEARCH AND ALSO PROCEEDINGS I NITIATED U/S 158BC OF THE ACT. IN VIEW OF THE ABOVE AND RESPECTFULLY FOLLOWING THE ABOVE ORDER OF THE HON'BLE HIGH COURT DATED 14.7.2006, COPY PLACED ON RECORD, WE QUASH THE IMPUGNED ASSESSMENT ORDER, AS THE SAME WAS FRAM ED PURSUANT TO AUTHORIZATION ISSUED BY THE ADDITIONAL DIRECTOR (IN VESTIGATION), ALLAHABAD ON THE BASIS OF WHICH IMPUGNED ASSESSMENT U/S 158BC / 144 OF THE ACT DATED 13.12.2004 HAS BEEN FRAMED.' 3. IN THIS REGARD IT IS SUBMITTED THAT SECTION 132 (1) AND SECTION 132A(1) BOTH HAVE SINCE BEEN AMENDED BY THE FINANCE (NO.2) ACT, 2009 WITH RETROSPECTIVE EFFECT W.E.F. 01.06.1994 TO EMPO WER THE ADDITIONAL DIRECTOR OF INCOME TAX TO ISSUE OF WARRANT OF AUTHO RIZATION OF SEARCH. 4. IN VIEW OF THE ABOVE EXPLAINED POSITION, IT IS PRAYED THAT THE HON'BLE TRIBUNAL MAY KINDLY CONSIDER RE-CALLING THE ORDER D ATED 28.2.2007 PASSED BY IT IN ITA NO. 224/LUC/06 AND RECONSIDER THE ISSU E IN THE LIGHT OF AMENDED PROVISIONS OF THE INCOME TAX ACT 1961. 5. THIS MAY KINDLY BE TREATED AS A MISCELLANEOUS A PPLICATION U/S 254 OF :-3-: THE I. T. ACT, 1961. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE ALSO P ERUSED THE MATERIALS AVAILABLE ON RECORD. SHRI P. K. BAJAJ, THE LD. D. R. REITERATED THE AVERMENTS AS MADE IN THE MISCELLANEOUS APPLICATION. WE FIND THAT THE TR IBUNAL HAS QUASHED THE ASSESSMENT ORDER BECAUSE THE SAME WAS FRAMED PURSUANT TO THE W ARRANT OF AUTHORIZATION ISSUED BY THE ADDITIONAL DIRECTOR (INVESTIGATION), ALLAHABAD ON THE BASIS OF WHICH ASSESSMENT U/S. 158BC/144 OF THE INCOME-TAX ACT, 1961 (IN SHORT TH E ACT) DATED 13.12.2004 WAS FRAMED. WHILE QUASHING THE ASSESSMENT ORDER, THE T RIBUNAL HAS FOLLOWED THE ORDER DATED 14.7.2006 OF THE HON'BLE JURISDICTIONAL HIGH COURT IN WRIT PETITION NO.5015(MB) OF 2004 IN THE CASE OF BAJRANG DEGREE COLLEGE V. ACIT, SULTANPUR WHEREIN THE HON'BLE HIGH COURT QUASHED THE ASSESSMENT ORDER FRAMED U/S. 158B C/144 OF THE ACT DATED 13.12.2004 PASSED IN PURSUANCE OF THE PROCEEDINGS I NITIATED U/S. 158BC OF THE ACT. IN THE SAID CASE, THE PROCEEDINGS U/S. 158BC OF THE AC T WERE INITIATED PURSUANT TO WARRANT OF AUTHORIZATION ISSUED BY THE ADDITIONAL DIRECTOR OF INCOME-TAX (INVESTIGATION), ALLAHABAD. THE HON'BLE COURT RULED THAT THE ADDITI ONAL DIRECTOR OF INCOME-TAX (INVESTIGATION), ALLAHABAD WAS NOT COMPETENT TO ISS UE AUTHORIZATION U/S. 132(1) OF THE ACT. THEIR LORDSHIPS OF THE HON'BLE ALLAHABAD HIGH COURT VIDE ORDER DATED 14.7.2006 HAVE HELD IN THE ABOVE ORDER THAT WARRANT OF AUTHOR IZATION ISSUED BY THE ADDITIONAL DIRECTOR (INVESTIGATION) CANNOT BE SAID TO BE A LEG AL AUTHORIZATION AND THE SEARCH MADE IN PURSUANCE OF SUCH AUTHORIZATION COULD NOT BE SAV ED. THEREFORE, THE HON'BLE HIGH COURT HELD THAT THE ENTIRE PROCEEDINGS AND ISSUANCE OF NOTICE U/S. 158BC OF THE ACT ARE WHOLLY WITHOUT JURISDICTION AND AUTHORITY, AND CONS EQUENTLY THEY ARE LIABLE TO BE SET ASIDE. CONSEQUENTLY, THE ENTIRE PROCEEDINGS OF SEA RCH AND ALSO PROCEEDINGS INITIATED U/S. 158BC OF THE ACT WERE QUASHED. THE FACTS OF T HE PRESENT CASE ARE SIMILAR TO THE FACTS OF THE CASE OF BAJRANG DEGREE COLLEGE V. ACIT , SULTANPUR (SUPRA) AND THEREFORE THE TRIBUNAL FOLLOWING THE DECISION OF THE HON'BLE JURI SDICTIONAL HIGH COURT QUASHED THE ASSESSMENT ORDER. AT THE TIME OF PASSING THE ORDER BY THE TRIBUNAL IN ITA NO. 224/LUC/2006, THE ADDITIONAL DIRECTOR OR THE ADDITI ONAL COMMISSIONER WAS NOT COMPETENT TO ISSUE WARRANT OF AUTHORIZATION. NO DO UBT SECTION 132 AND 132A(1) OF THE ACT HAVE BEEN AMENDED BY THE FINANCE (NO.2) ACT, 20 09 WITH RETROSPECTIVE EFFECT W.E.F. 1.6.1994 TO EMPOWER THE ADDITIONAL DIRECTOR OF THE INCOME-TAX TO ISSUE WARRANT OF AUTHORIZATION OF SEARCH. IN OUR VIEW, THE AMENDMEN T WITH RETROSPECTIVE EFFECT CAN BE :-4-: MADE APPLICABLE ONLY TO THE CASES WHICH HAVE NOT BE EN DECIDED FINALLY AND PENDING FOR ADJUDICATION. WE CANNOT TAKE ADVANTAGE OF THE SUBS EQUENT AMENDMENT MADE WITH RETROSPECTIVE EFFECT IN A CLOSED AND SETTLED MATTER , PARTICULARLY IN THE MATTER DECIDED AND SETTLED THREE YEARS BACK IN THE GUISE OF RECTIFICAT ION. IN THAT VIEW OF THE MATTER, THE AFORESAID ORDER OF THE TRIBUNAL DATED 28.2.2007 CAN NOT BE RECTIFIED U/S. 254(2) OF THE ACT. IN FACT, THERE IS NO MISTAKE APPARENT FROM RE CORD WHICH NEEDS RECTIFICATION. WE, THEREFORE, DO NOT FIND ANY MERIT IN THE APPLICATION FILED BY THE REVENUE AND DISMISS THE SAME. 4. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY T HE REVENUE IS DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 25.3.201 1. SD/- SD/- [ N. K. SAINI] [H. L. KARWA] ACCOUNTANT MEMBER VICE PRESIDENT DATED:25.3.2011 JJ:2503 COPY FORWARDED TO: 1. APPLICANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR