ACIT, Cir.-6, Pune V. Sinhgad Technical Education society, Pune

MA 78/PUN/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7430 (ITAT-PUNE)
• Duration Of Justice: 5 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-12-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 09-12-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 17-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MITHALI MADHUSMITHA
• Assessee Lawyers: S N DOSHI
• Keywords: Loose papers; Documents seized
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B PUNE BEFORE SHRI I.C. SUDHIR, J.M. AND SHRI D. KARUNAKARA RAO, A.M. M.A. NO. 76 TO 79/PN/2011 ARISING OUT OF ITA NO. 114 TO 117/PN/2010 A.Y. 2000-01 TO 2003-04 ASSTT. CIT CIR. 6 PUNE .. APPLICANT VS. SINHGAD TECHNICAL EDUCATION SOCIETY S.NO. 44/A VADGAON (BK) OF SINHGAD ROAD PUNE-411 041 PAN AABTS 3300 Q R .. RESPONDENT APPELLANT BY: SMT MITHALI MADHUSMITHA CIT DR RESPONDENT BY: SHRI S.N. DOSHI A R DATE OF HEARING : 9-12-2011 DATE OF PRONOUNCEMENT: ___12-2011 ORDER PER D. KARUNAKARA RAO, AM THESE MISCELLANEOUS APPLICATIONS HAVE BEEN FILED BY THE REVENUE AGAINST THE ORDER OF THE TRIBUNAL VIDE ITA NO. 114 TO 117/PN/2010 FOR A.Y. 2000-01 TO 2003-04 DATED 28-1-2011. PARAGRPAHS 5 TO 11 OF THE MISCELLANEOUS APPLICATIONS CONTAIN THE PRAYER OF TH E REVENUE FOR RECTIFICATION. SAID ORDER OF THE TRIBUNAL CONTAINS THE DECISION IN FAVOUR OF QUASHING OF THE ASSESSMENTS IN VIEW OF THE INVAL ID NOTICE U/S 153C OF THE ACT. AO ISSUED THE SAID NOTICES TO THE ASSES SEE WHEN THE DOCUMENTS BELONGED TO THE ASSESSEE AND SEIZED BY TH E DEPARTMENT ARE ALREADY ACCOUNTED ONES AND THEREFORE ARE NOT INCRIM INATING DOCUMENTS. REVENUE IS OF THE OPINION THAT SAID ORDER OF THE TR IBUNAL REQUIRES RECTIFICATION. THE REVENUE IS OF THE OPINION, RELYI NG ON THE LITERAL INTERPRETATION OF THE PROVISION OF SECTION 153C OF THE ACT, THAT WHEN THE SATISFACTORY NOTE IS UNDISPUTEDLY AVAILABLE ON RECORD AND WHEN THE LOOSE PAPERS, BELONGING TO THE ASSESSEE AND ACCOUNT ED IN THE REGULAR BOOKS OF ACCOUNTS, ARE SEIZED BY THE REVENUE, THE A O HAS VALIDLY ASSUMED JURISDICTION UNDER THE PROVISIONS OF SECTIO N 153C OF THE ACT. FURTHER, SMT. MITHALI MADHUSMITHA, LD DR HAS MENTIO NED THAT THE TRIBUNAL HAS NOT ONLY FAILED TO CONSIDER THE ENTIRE SATISFACTORY NOTE BUT ALSO FAILED TO CONSIDER THE DECISIONS OF VARIOUS BE NCHES OF THE TRIBUNAL SUCH AS (I) RAJAT TRADECOM INDIA (P) LTD. VS. DCIT (2009) 120 ITD 48 (INDORE), (II) ACIT VS. PANCHURAM DESHMUKH AND OTHE RS (2010) 133 TTJ (BILASPUR) 53, AND (III) HARVEY HEART HOSPITAL LTD. VS. ACIT (2010) MA NO. 76 TO 79/PN/2011 SINHAGAD TECHNICAL EDUCATION A.Y. 2000-01 TO 2003-04 2 130 TTJ (CHENNAI) 700. FURTHER ALSO, SHE HAS ELABOR ATED AND STATED THAT THE PROVISIONS OF SECTION 153C NOWHERE REFERS TO THE REQUIREMENT OF INCRIMINATING NATURE OF THE DOCUMENTS IN QUESTIO N AND THE REQUIREMENT IS WITH REFERENCE TO THE BELONGING O F THE SAIS DOCUMENTS TO THE THIRD PERSON. 2. ON THE OTHER HAND, SHRI S.N. DOSHI, LEARNED COUN SEL FOR THE ASSESSEE, HAS FILED A WRITTEN NOTE AND MENTIONED TH AT THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL, WHICH MERELY FOLLOWED THE EXISTING LEGAL PROPOSITION ALREADY PRONOUNCED BY V ARIOUS BENCHES OF THE TRIBUNAL INCLUDING THE CALCUTTA BENCH OF THE TR IBUNAL IN THE CASE OF LMJ INTERNATIONAL (119 TTJ 214) AS EVIDENT FROM THE CONTENTS OF PARA 13 OF THE IMPUGNED ORDER DATED 28-1-2011. THIS DECI SION IS RELEVANT FOR THE PROPOSITION THAT WHERE NOTHING INCRIMINATING IS FOUND RELATING TO ANY ASSESSMENT YEAR, THE ASSESSMENT FOR SUCH YEAR CANNOT BE DISTURBED U/S 153C OF THE ACT. FURTHER, HE MENTIONED THAT THE DOCUMENTS SEIZED, WHICH ARE RECORDED IN TH E BOOKS OF ACCOUNTS MAINTAINED IN REGULAR COURSE OF THE BUSINE SS, CANNOT BE HELD INCRIMINATING AND RELIED ON VARIOUS DECISIONS IN TH IS REGARD. FURTHER, HE VEHEMENTLY ARGUED STATING THAT WHY THE SETTLED ASSE SSMENTS SHOULD BE DISTURBED, WHEN THERE IS NOTHING INCRIMINATING DOCU MENTS/SPECIFIED ASSETS BELONGING TO THE ASSESSEE ARE SEIZED BY THE REVENUE. HE HAS ALSO TAKEN US THROUGH THE PAPERS AND MENTIONED THAT THE ITAT HAS EXAMINED EVERY PAPER PERTAINING TO THE ASSESSEE WHI CH ARE MENTIONED IN THE SATISFACTION NOTE AND CAME TO THE CONCLUSION THAT NONE OF THE PAPERS BELONGING TO THE ASSESSEE ARE INCRIMINATING ONE. IN PARA 3 OF HIS NOTE, LD COUNSEL HAS MENTIONED THAT THE DECISIO NS RELIED ON BY THE REVENUE STATED ABOVE, ARE ALREADY CONSIDERED BY THE BENCH WHILE ADJUDICATING OTHER APPEALS INVOLVING AN IDENTICAL I SSUE. HE MENTIONED THAT THE PRESENT ORDER WAS MERELY DEPICTED THE PREV AILING RATIO DECIDED IN THE CASE OF LMJ INTERNATIONAL (119 TTJ 214) WHIC H WAS CITED IN THE ORDER OF THE TRIBUNAL. THE ORDERS RELIED UPON BY TH E THEN DR WERE DULY CONSIDERED WHILE ARRIVING AT THE DECISION. IN PARA 4 AND 5, THE LEARNED COUNSEL HAS DETAILED AS TO WHAT CONSTITUTES A MISTA KE WHICH IS RECTIFIABLE U/S 254(2) OF THE ACT. THE CITED JUDGM ENTS INCLUDE HARIVISHNU KAMAT VS. SAYED AHMED ISAQUE (1 SCR 1104 ) FOR THE PROPOSITION THAT ONCE JUDGMENT IS PRONOUNCED BY THE COURT OR TRIBUNAL OR ADJUDICATING AUTHORITY IT BECOMES FANCTAUS OFFICIO (CEASES TO HAVE THE CONTROL OVER THE MATTER). HE HAS ALSO MENTIONE D THE DECISION OF SUPREME COURT IN THE CASE OF PATEL NARSHI THAKERSHI & OTHERS VS SHRI MA NO. 76 TO 79/PN/2011 SINHAGAD TECHNICAL EDUCATION A.Y. 2000-01 TO 2003-04 3 PRADYUMANSINGHJI ARJUNSINGHJI (3 SCC 844-847) FOR T HE PROPOSITION THAT THE TRIBUNAL DOES NOT HAVE POWER TO REVIEW . LD COUNSEL ALSO REFERRED TO THE SIMILAR DECISIONS OF THIS TRIBUNAL IN THE GR OUP CASES OF BHARAT VIDHYAPEET, IE BHARATI VIDYAPEETH MEDICAL FOUNDATIO N 959/PN/10 FOR AY 2000- 01 AND 21 OTHER APPEALS AND THE CASE OF SONHIRA FOU NDATION FOR RURAL DEVELOPMENT-ITA NO.851 TO 856/PN/2011 FOR THE ASSES SMENT YEAR: 2000-01 TO 2005-06 ETC. THESE APPEALS WERE DECIDED BY THIS TRI BUNAL AFTER CONSIDERING THE ABOVE CITED ORDER/JUDGMENT. TO SUM UP, LD AR IS OF THE OPINION THAT THE IMPUGNED ORDER DOES NOT CALL F OR ANY RECTIFICATION U/S 254(2) OF THE ACT. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED OUR O RDER IN THE LIGHT OF THE MISCELLANEOUS APPLICATIONS FILED BEFOR E US. THE CASE OF THE REVENUE IN THE MISCELLANEOUS APPLICATIONS IS THAT WHEN THE LANGUAGE OF SECTION 153C DOES NOT CONTAINS THE EXPRESSION I NCRIMINATING, MERE BELONGING OF THE DOCUMENTS SEIZED IS ADEQUATE FOR T HE AO TO ASSUME JURISDICTION. ALTERNATIVELY, REVENUE IS OF THE OPIN ION, THAT SATISFACTION NOTE, WHICH IS UNDISPUTEDLY RECORDED BY THE AO SHOU LD BE CONSIDERED AS A WHOLE. CONSIDERING THE DECISIONS CITED BY THE REVENUE IN THE PARAGRAPH ABOVE, THE TRIBUNAL SHOULD RECALL ITS ORD ER U/S 254(2) OF THE ACT. ON THE OTHER HAND, THE CASE OF THE ASSESSEE IS THAT THE TRIBUNAL HAS ELABORATELY ANALYSED THE LAW OF SECTION 153C OF THE ACT AND CONSIDERED THE PRECEDENT ON THE ISSUE AND ALSO UPHO LD THE JUDICIAL DISCIPLINE OF THE TRIBUNAL, IN SUCH CIRCUMSTANCES, ANY ALTERATION OF THE IMPUGNED ORDER AMOUNTS TO REVIEW, WHICH IS NOT PERM ITTED U/S 254(2) OF THE ACT. THE CITED DECISIONS BY THE PRESENT DR D OES NOT ALTER THE DECISION OF THE TRIBUNAL AS THESE DECISION EITHER R EVOLVE AROUND THE PROVISIONS OF SECTION 153A OF THE ACT AND ALSO AROU ND THE CONCEPT OF BELONGING, AND THEY WERE ALREADY CONSIDERED WHILE ADJUDICATING OTHER APPEALS CITED ABOVE AND FOUND NOT APPLICABLE TO THE FACTS OF THIS CASE. WE HAVE PERUSED THE SAID DECISIONS AND FOUND THE CI TED DECISIONS SHALL NOT HELP THE REVENUE. WE HAVE EXAMINED ONCE AGAIN I F ANY DOCUMENT REFERRED TO IN THE SATISFACTION NOTE REFERRED BY THE DR AND WE AFFIRM THAT THAT EVERY DOCUMENT CITED THEREIN ARE THE ACCO UNTED ONES IN THE BOOKS REGULARLY MAINTAINED BY THE ASSESSEE. IN RESP ONSE THE QUERY FROM THE BENCH ABOUT ANY DOCUMENT BELONGING TO THE ASSESSEE AND UNACCOUNTED IN THE BOOK, LD DR HAS NOT BROUGHT OUT ANY SPECIFIC DOCUMENT BEFORE US WHICH IS NOT ACCOUNTED IN THE BO OKS AND BELONGING TO THE ASSESSEE. THUS, WE HAVE HELD IN THE IMPUGNED ORDERS THAT THE FOR ASSUMING JURISDICTION U/S 153C OF THE ACT, THER E IS NEED FOR MA NO. 76 TO 79/PN/2011 SINHAGAD TECHNICAL EDUCATION A.Y. 2000-01 TO 2003-04 4 DISCOVERY AND SEIZURE OF THE INCRIMINATING DOCUMENT S/BOOKS/OTHER SPECIFIED ASSETS BELONGING TO THE ASSESSEE. THERE I S NONE OF THAT KIND IN THE INSTANT CASE. IN SUCH CIRCUMSTANCES, IN OUR OPINION, ANY ALTERATION TO THE ORDER PASSED BY US AMOUNTS TO REV IEW AND NOT ENTERTAINABLE UNDER THE PROVISIONS OF SECTION 254(2 ) OF THE ACT. REGARDING OTHER DECISIONS CITED IN THE MISCELLANEOU S APPLICATIONS, WE FIND THAT THOSE DECISIONS WERE NOT REFERRED TO BY T HE THEN LEARNED DR AT THE APPROPRIATE TIME BEFORE US. NOTWITHSTANDING THE SAME, WE FIND THAT THE CONSIDERATION OF THE CITED ORDERS DOES NOT ALTER THE SITUATION, AS THEY WERE ALREADY CONSIDERED AND HELD INAPPLICAB LE TO THE ISSUE UNDER CONSIDERATION WHILE ADJUDICATING OTHER APPEAL S INVOLVING BHARAT VIDHPEETH GROUP OF CASES. ON FACTS, THESE DECISIONS ARE DELIVERED IN THE CONTEXT OF PROVISIONS OF SECTION 153A OF THE AC T AND ALSO IN THE CONTEXT OF EXPRESSION BELONG USED IN THE RELEVANT PROVISIONS OF SECTION 153C OF THE ACT. NONE OF THESE DECISIONS RE LATE TO THE DOCUMENTS - INCRIMINATING WHICH IS PROPOUNDED IN VARIOUS DECISIONS OF THE TRIBUNAL CITED IN PARA 13 OF THE IMPUGNED ORDER . THEREFORE, WE ARE OF THE OPINION THAT THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE ARE TO BE DISMISSED . 4. IN THE RESULT, ALL THE MISCELLANEOUS APPLICATION S FILED BY THE REVENUE ARE DISMISSED. DECISION IS PRONOUNCED IN THE OPEN COURT ON 16-12-2 011. SD/- SD/- (I.C. SUDHIR) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE DATED THE 16 TH DECEMBER 2011. ANKAM COPY OF THE ORDER FORWARDED TO: 1. ASSESSEE 2. DEPARTMENT 3. CIT(A)-II PUNE 4. CIT CENTRAL PUNE 5. THE D.R, PUNE BENCH B TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY ITAT, PUNE BENCH, PUNE