PUNJAB SIND DAIRY PRODUCTS P.LTD, MUMBAI v. ACIT CEN CIR 33, MUMBAI

ITA 1253/MUM/2012 | 2006-2007
Pronouncement Date: 05-11-2014 | Result: Allowed

Appeal Details

RSA Number 125319914 RSA 2012
Bench Mumbai
Appeal Number ITA 1253/MUM/2012
Duration Of Justice 2 year(s) 8 month(s) 11 day(s)
Appellant PUNJAB SIND DAIRY PRODUCTS P.LTD, MUMBAI
Respondent ACIT CEN CIR 33, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 05-11-2014
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 11-11-2014
Date Of Final Hearing 28-07-2014
Next Hearing Date 28-07-2014
Assessment Year 2006-2007
Appeal Filed On 23-02-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH MUM BAI BEFORE SHRI SANJAY ARORA AM AND SHRI AMIT SHUKLA JM ./ I.T.A. NO. 1253/MUM/2012 ( / ASSESSMENT YEAR: 2006-07) PUNJAB SIND DAIRY PRODUCTS PVT. LTD. C/O. K. K. LALKAKA & CO. 507 CHURCHGATE CHAMBERS 5 NEW MARINE LINES MUMBAI-400 020 / VS. ASST. CIT CENTRAL CIRCLE-33 MUMBAI ! ./' ./PAN/GIR NO. ( !# /APPELLANT ) : ( $%!# / RESPONDENT ) !# & ' / APPELLANT BY : SHRI K. K. LALKAKA $%!# & ' / RESPONDENT BY : SHRI NEIL PHILIP () * & + / DATE OF HEARING : 05.11.2014 DATE OF ORDER : 11.11.2014 / O R D E R PER SANJAY ARORA A. M.: THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-41 MUMBAI (CIT(A) FOR SH ORT) DATED 27.01.2012 PARTLY ALLOWING THE ASSESSEES APPEAL CONTESTING ITS ASSES SMENT U/S.143(3) OF THE INCOME TAX ACT 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMEN T YEAR (A.Y.) 2006-07 VIDE ORDER DATED 31.12.2008. 2.1 THE APPEAL BESIDES OTHER ISSUES RAISES THE PR INCIPAL ISSUE QUESTIONING THE VALIDITY OF THE ASSESSMENT VIDE THE ADDITIONAL GROUND AS U NDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE ASSESSMENT ORDER PASSED BY ASSTT. COMMISSIONER OF I NCOME-TAX CENTRAL 2 ITA NO. 1253/MUM/2012 (A.Y. 2006-07) PUNJAB SIND DAIRY PRODUCTS PVT. LTD. VS. ASST. CIT CIRCLE MUMBAI DATED 31 ST DECEMBER 2008 IS INVALID AND BAD IN LAW SINCE A SEARCH WAS INITIATED ON 8 TH MAY 2007 ON THE SAID APPELLANT AND HAVING REGARD TO THE PROVISIONS OF SECTION 153A THE LEGAL POSITION IN TERMS OF SUB- SECTION (1) OF SECTION 153A THAT EMERGES IS THAT WH EN ASSESSMENT IS PENDING COMPLETION WHEN THE SEARCH IS INITIATED SUCH PROCE EDINGS SHALL ABATE. THE SAID ISSUE BEING LEGAL AND GOING TO THE ROOT O F THE MATTER THE ADDITIONAL GROUND WAS ADMITTED IN VIEW OF THE SETTLED LAW AND THE APPEAL HEARD; IN FACT ONLY THEREON. IT WAS POINTED OUT BY THE LD. AUTHORIZED R EPRESENTATIVE (AR) THE ASSESSEES COUNSEL THAT THE ASSESSMENT IN THE INSTANT CASE WA S FRAMED ON 31.12.2008 I.E. MUCH AFTER THE DATE OF SEARCH ON THE ASSESSEE ON 08.05.2 007 TAKING US THROUGH THE WARRANT OF AUTHORIZATION (IN FORM 45) DATED 07.05.2007 (PB PGS .1-2). THE ASSESSMENT BEING PENDING AS ON THE DATE OF SEARCH THE SAME GETS ABA TED. ACCORDINGLY THE IMPUGNED ASSESSMENT IS BAD IN LAW. RELIANCE FOR THE PURPOSE WAS PLACED BY HIM ON THE DECISION IN THE CASE OF CIT VS. ANIL KUMAR BHATIA (REPORTED AT [2012] 211 TAXMANN 453 (DEL)/PB PGS.4-22). THE REVENUE HAS IN FACT SUBSEQUENTLY A LSO FRAMED THE ASSESSMENT U/S.153A R/W S. 143(3) FOR THE RELEVANT YEAR ON 29.12.2009 PLACING A COPY THEREOF ON RECORD AT THE INSTANCE OF THE BENCH. THIS SUMS UP THE ASSESSEES CASE. 2.2 THE LD. DEPARTMENTAL REPRESENTATIVE (DR) COULD NOT REBUT THE ASSESSEES CONTENTIONS THOUGH WOULD STATE THAT THE PURVIEW OF AN ASSESSMENT POST SEARCH U/S.153A WOULD BE THE TOTAL INCOME. 3. WE HAVE HEARD THE PARTIES AND PERUSED THE MATER IAL ON RECORD. 3.1 THE RETURN OF INCOME DECLARING AN INCOME OF RS .5 08 030/- FOR THE RELEVANT YEAR WAS FURNISHED ON 29.11.2006 (REFER THE STATEMENT OF FACTS BEFORE THE FIRST APP ELLATE AUTHORITY; THE MENTION OF THE SAID DATE AS 14.12.2 007 IN THE ASSESSMENT ORDER IS INCORRECT). THIS DATE IS MATERIAL IN-AS-MUCH AS THE ASSESSMENT PROCEEDINGS COMMENCE WITH THE FILING OF THE RETURN U/S. 139(1) OF THE AC T. THIS WAS FOLLOWED BY A NOTICE U/S. 143(2) ON 27.09.2007 I.E. SUBSEQUENT TO THE DATE OF SEARCH. NO ASSESSMENT HAVING BEEN MADE BY 08.05.2007 THE DATE OF SEARCH WITH THE RE LEVANT YEAR FALLING WITHIN THE PERIOD OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSE SSMENT YEAR RELEVANT TO THE PREVIOUS 3 ITA NO. 1253/MUM/2012 (A.Y. 2006-07) PUNJAB SIND DAIRY PRODUCTS PVT. LTD. VS. ASST. CIT YEAR IN WHICH THE SEARCH IS CONDUCTED OR REQUISITIO N MADE THE SAME SHALL ABATE IN TERMS OF THE CLEAR PROVISION OF LAW WHICH WE MAY REPRODU CE HERE-IN-BELOW FOR READY REFERENCE: ASSESSMENT IN CASE OF SEARCH OR REQUISITION. 153A. (1) NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139 SECTION 147 SECTION 148 SECTION 149 SECTION 151 AND SECTION 1 53 IN THE CASE OF A PERSON 79 WHERE A SEARCH IS INITIATED UNDER SECTION 132 OR B OOKS OF ACCOUNT OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UND ER SECTION 132A AFTER THE 31ST DAY OF MAY 2003 THE ASSESSING OFFICER SH ALL ( A ) ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FURN ISH WITHIN SUCH PERIOD AS MAY BE SPECIFIED IN THE NOTICE THE RETURN OF IN COME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE ( B ) IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIB ED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED A ND THE PROVISIONS OF THIS ACT SHALL SO FAR AS MAY BE APPLY ACCORDINGLY AS I F SUCH RETURN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139; ( B ) ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSESS MENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVI OUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE : PROVIDED THAT THE ASSESSING OFFICER SHALL ASSESS OR REASSES S THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING W ITHIN SUCH SIX ASSESSMENT YEARS: PROVIDED FURTHER THAT ASSESSMENT OR REASSESSMENT IF ANY RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SIX AS SESSMENT YEARS REFERRED TO IN THIS SUB-SECTION] PENDING ON THE DATE OF INITIAT ION OF THE SEARCH UNDER SECTION 132 OR MAKING OF REQUISITION UNDER SECTION 132A AS THE CASE MAY BE SHALL ABATE : (2) . EXPLANATION .FOR THE REMOVAL OF DOUBTS IT IS HEREBY DECLARED THAT ( I ) SAVE AS OTHERWISE PROVIDED IN THIS SECTION SECTI ON 153B AND SECTION 153C ALL OTHER PROVISIONS OF THIS ACT SHALL APPLY TO THE ASSESSMENT MADE UNDER THIS SECTION; ( II ) 3.2 THE LAW IN THE MATTER IS THUS PATENTLY CLEAR A ND DOES NOT CONTEMPLATE OR ENVISAGE TWO ASSESSMENTS PROCEEDINGS RUNNING IN PARALLEL AND CONSEQUENTLY TWO ASSESSMENTS I.E. ONE WHICH STANDS INITIATED OR MAY BE ON AS THE CAS E MAY BE I.E. AT THE TIME OF SEARCH (OR REQUISITION) AND ANOTHER SUBSEQUENT THERETO. THIS IS AS THE SCOPE OF THE PROCEEDINGS U/S.153A FALLING UNDER CHAPTER XIV OF THE ACT IN CONTRADISTINCTION TO THOSE U/C.XIV-B 4 ITA NO. 1253/MUM/2012 (A.Y. 2006-07) PUNJAB SIND DAIRY PRODUCTS PVT. LTD. VS. ASST. CIT IS TO BE ASSESS (OR REASSESS) THE TOTAL INCOME OF T HE ASSESSEE FOR THE RELEVANT YEAR/S. THERE ARE EVEN AS EXPLAINED BY THE HONBLE COURT IN ANIL KUMAR BHATIA (SUPRA) NO FETTERS ON THE POWER OF THE ASSESSING OFFICER (A.O.) WHO IS U /S.153A ENTRUSTED WITH THE DUTY TO BRING TO TAX THE TOTAL INCOME OF AN ASSESSEE WHOSE CASE IS COVERED U/S.153A (OR SECTION 153C). WE MAY FURTHER CLARIFY THAT THERE IS NO CONC EPT OF UNDISCLOSED INCOME AS INTRODUCED IN CHAPTER XIV-B AND THE TOTAL INCOME O F THE ASSESSEE FOR THE RELEVANT YEAR IS TO BE SUBJECT TO REGULAR ASSESSMENT. IN THE PRESENT CASE RATHER WE FIND THE NOTICE U/S.143(2) TO HAVE BEEN ISSUED AND SERVED ON THE AS SESSEE ON 27.09.2007 I.E. THE PROCEDURE TO BE ADOPTED FOR SUBJECTING THE ASSESSEE S RETURN AS ORIGINALLY FILED (WHICH WE MAY CLARIFY WAS A VALID RETURN IN LAW) TO VERIFICA TION PROCEDURE SUBSEQUENT TO THE DATE OF SEARCH. THAT IS RATHER THAN PUTTING THE ASSESSMENT PROCEEDINGS WHERE ON TO REST THE REVENUE INITIATES STEPS FOR A REGULAR ASSESSMENT ON THE BASIS OF THE SAID RETURN. THE SAID NOTICE AND CONSEQUENTLY THE ASSESSMENT FRAMED IN PURSUANCE THEREOF ARE BAD IN LAW AND WE HAVE NO QUALMS IN STATING SO. WE ACCORDINGLY S ET ASIDE THE IMPUGNED ASSESSMENT AS BAD IN LAW. WE THEREFORE DO NOT ANSWER ANY OF THE OTHER GROUNDS RAISED BY THE ASSESSEE PER ITS APPEAL; THE SAME NOT SURVIVING FOR ADJUDICA TION WITH THE LD. AR ALSO RESTING HIS CASE UPON ARGUING THE ADDITIONAL GROUND AFORE-REFER RED. WE DECIDE ACCORDINGLY. 4. IN THE RESULT THE ASSESSEES APPEAL IS ALLOWED. - . (/ 0 & ) 1 & 23 ORDER PRONOUNCED IN THE OPEN COURT ON 05/11/2014 AT THE CONCLUSION OF THE HEARING SD/- SD/- (AMIT SHUKLA) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER 4* MUMBAI; 5( DATED : 11.11.2014 ).(../ ROSHANI SR. PS 5 ITA NO. 1253/MUM/2012 (A.Y. 2006-07) PUNJAB SIND DAIRY PRODUCTS PVT. LTD. VS. ASST. CIT !' # $%&' (!'% / COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $%!# / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. 8)9 : $(;/ + ;/- 4* / DR ITAT MUMBAI 6. : =0 > * / GUARD FILE !' / BY ORDER )/* + (DY./ASSTT. REGISTRAR) 4* / ITAT MUMBAI