DCIT, Central Circle-3, Vadodara V. Smt. Pragnaben K. Patel, Vadodara

MA 96/AHD/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3494 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-07-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 14-07-2022
• Assessment Year: 2009-2010
• Appeal Filed On: 05-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Document seized; Retrospective amendment; Tax effect; Documents seized
• Section: 132; 153A; 254(2)

Judgement Text

, ‘D’ । IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH, AHMEDABAD BEFORE SMT. ANNAPURNA GUPTA, ACCOUNTANT MEMEBR & SHRI MAHAVIR PRASAD, JUDICIAL MEMEBR MISCELLANEOUS APPLICATION No. 96/Ahd/2019 (in IT(SS)A No. 198/Ahd/2018) ( Assess ment Ye ar : 2009-10) De pu ty C o mmi ss io ner o f In co me- tax Ce ntr al C ir cl- 3, V a do dar a, 6 t h F lo or , Aa ya k ar Bh ava n, Rac e Co ur se C ir cle , Va do dar a / V s . S mt. Pr ag na be n K Pa te l 87, Mah es hw ar N ag ar So cie t y, Ne w IP CL Ro ad, Su bh an pur a, V ad od ara / /P A N / G IR N o . : A N A P P 5 4 2 5 B ( Appellant) . . ( / Respondent) /Appellant by : Shri Shramdeep Sinha, Sr. D.R. / Respondent by : Shri Mukund Bakshi, A.R. D a t e o f H e a r i n g 15/07/2022 !"# /D a t e o f P r o n o u n c e m e n t 20/07/2022 ORDER PER MAHAVIR PRASAD, JM: This present miscellaneous applications has been filed by the Revenue with the following contents: “A search action u/s. 132 of the I.T. Act was carried out in the Vaghela Group of cases including the case of the assessee on 30.08.2013.Thereafter, the case of the assessee was centralized to this office and the proceedings u/s. 153A were initiated. In response to notice u/s. 153A of the Act assessee filed her return of income on 21.01.2015, declaring total income at Rs. 13,17,850/-. MA No. 96/Ahd/2019 [DCIT vs. Smt. Pragnaben K. Patel] AY 2009-10 - 2 - 2 During the course of assessment proceedings. The assessee has failed to prove the identity, genuineness and creditworthiness of the individual from whom unsecured loan of Rs. 5.85 lakh wjas taken. Therefore, the amount of Rs. 5.85 lakh was added back to the returned income of the assessee. 3 Farther the assessee could only submit documentary evidence of Rs. 59,558 out of Rs. 70,000/- claimed as deduction under chapter VI-A. Accordingly, deduction of Rs. 10,442/- was disallowed and added back to the total income of the assessee. 4 Aggrieved with the assessment order assessee filed first appeal before the Ld. CIT(A), Ahmadabad. The Ld. CIT(A), Ahmadabad quashed the assessments framed u/s. 153A on relying upon the judicial decision in the case of Pr. CIT Vs. Saumya Construction Pvt. Ltd. 81 taxmann.com 292 by contending that the additions made without the incriminating seized documents! in these assessments, which remained unabated as on the date of the search, are without requisite authority in law. 5 The decision of the Ld. CIT(A) was considered not acceptable and hence department filed further appeal before the Hon'ble ITAT vide ITSSA No. 198/Ahd/2018. The Hon'ble ITAT dismissed the Revenue's appeal involving tax effect of less than Rs. 20.00 lakh in the light of circular dated 11.07.2018 as withdrawn taking into consideration that the instructions have been made applicable with retrospective effect and are applicable on pending appeals also. The merits of the case as well as the legal issue have not been taken into consideration. However, the Hon'ble ITAT has also given liberty that in case on re-verification at the end of the A.O. Revenue's case falls within the ambit of excepts provided in the circular then the department' wilt be at liberty to approach the Tribunal for recall of this order. 6. Further, it must be mentioned that as per the website of Hon'ble Supreme Court of India an SLP filled by the Department against the decision of Gujarat high Court in CIT Vs. Saumya Construction Pvt. Ltd. has been disposed as dismissed vide order dated 24.04.2018 of Hon'ble Supreme Court of India. However, there is no speaking order as such as to why it has been dismissed.. Also, there is no observation of the court with regard to interpretation of scope of Section 153A of the Act that is still kept open as the interpretation that additions made without any| incriminating material in complete and unabated assessments are not stipulated under the Section clearly limits section 153A of the Act and gives it an interpretation not originally included in the provision when it was inserted. 7. Thus, though the aggregate tax effect involved of Rs. 2,02,391/- is below the prescribed limit for filing further appeal and the issue involved also falls within the ambit of the exception 10(a) for filing further appeal as per Board's instruction No. 3/2018 dated 11.07.2018, the undersigned pray your honour to restore the appeal ITSSA No. 198/Ahd/2018 for A.Y. 2009-10. An intimation of having restored the appeal before the Hon'ble ITAT may kindly be sent to this office. It is also prayed that the Hon'ble ITAT may kindly pass an appropriate order on merits, as it may deem fit. It is also submitted that no miscellaneous application u/s. 254(2) has been filed earlier in this case. MA No. 96/Ahd/2019 [DCIT vs. Smt. Pragnaben K. Patel] AY 2009-10 - 3 - 8. The appellant craves to add to, amend or alter the above grounds as may be deemed necessary.” 3. We have heard both the parties. In this case, matter was decided on the basis of CIT Vs. Saumya Construction Pvt. Ltd. (supra) and SLP is pending before the Hon’ble Supreme Court. Hon’ble Supreme Court has not stayed the order of the Saumya Construction Pvt. Ltd. (supra). Therefore, to our mind, the order of the Jurisdictional High Court in respect of Saumya Construction Pvt. Ltd. (supra) binding for us. Therefore, we do not find any merit in the miscellaneous application and thus, same is dismissed. 4. In the result, the miscellaneous applications filed by the Revenue is dismissed. Sd/- Sd/- (ANNAP UR NA GUP TA) (MAHAVIR PRASAD) ACC OUNTANT MEMB ER JUDICIAL MEMBER Ahmedabad: Dated 20/07/2022 True Copy S.K.SINHA ेश ! " #े" / Copy of Order Forwarded to:- $ / Revenue 2 द / Assessee ' ( )* + / Concerned CIT 4 + - / CIT (A) . / 0 1 2 2 )*3 )* #3 45द ( द / DR, ITAT, Ahmedabad 6 1 78 9 / Guard file. By order/ द श 3 उ / 4 )* #3 45द ( द । This Order pronounced in Open Court on 20/07/2022