Devika Proteins Ltd.,, Ahmedabad v. The Income tax Officer,Ward-1(4),, Ahmedabad

ITA 1566/AHD/2009 | 2005-2006
Pronouncement Date: 18-03-2011 | Result: Allowed

Appeal Details

RSA Number 156620514 RSA 2009
Assessee PAN AAACD6594P
Bench Ahmedabad
Appeal Number ITA 1566/AHD/2009
Duration Of Justice 1 year(s) 10 month(s) 3 day(s)
Appellant Devika Proteins Ltd.,, Ahmedabad
Respondent The Income tax Officer,Ward-1(4),, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 18-03-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 18-03-2011
Date Of Final Hearing 21-01-2011
Next Hearing Date 21-01-2011
Assessment Year 2005-2006
Appeal Filed On 15-05-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B BEFORE SHRI G.D.AGARWAL VICE PRESIDENT AND SHRI MUKUL KR. SHRAWAT JUDICIAL MEMBER DATE OF HEARING : 21/1/2011 DRAFTED ON: 2 7/1/2011 ITA NO.1566/AHD/2009 ASSESSMENT YEAR : 2005-06 DEVIKA PROTEINS LTD. 203 ABHIJEET-I MITHAKHALI SIX ROADS AHMEDABAD VS. THE ITO WARD-1(4) AHMEDABAD PAN/GIR NO. : AAACD6594P ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SRI A.L.THAKKAR RESPONDENT BY: SRI K.MADHUSUDAN SR.DR. O R D E R PER SHRI MUKUL KR. SHRAWAT JUDICIAL MEMBER : THIS APPEAL IS AT THE BEHEST OF THE ASSESSEE WHIC H HAS EMANATED FROM THE ORDER OF LEARNED CIT(APPEALS)-VI AHMEDABA D DATED 29/01/2009. THERE ARE SEVERAL GROUNDS OF APPEAL CH ALLENGING THE DISALLOWANCE OF DEPRECIATION INTEREST EXPENSES AND GROSS PROFIT ADDITION. THE CORRESPONDING ASSESSMENT ORDER CHALLENGED BEFOR E US HAS BEEN PASSED U/S 143(3) R.W.S.144 OF I. T. ACT DATED 3 1.12.2007 FOR A.Y.2005-06. HOWEVER AT THE OUTSET THE LEARNED AUTHORISED REPRESENTATIVE MR.A.L. THAKKAR HAS PLACED AN ANOTHER ASSESSMENT ORDER FOR THAT VERY ASSESSMENT YEAR 2005-06 DATED 2 4/12/2009 PASSED U/S.153A R.W.S. 144 OF I.T.ACT AND STATED THAT ONCE AN ORDER HAS BEEN PASSED UNDER THE SPECIAL PROVISIONS COVERING S EARCH U/S 132 OF THE ITA NO.1566/AHD /2009 DEVIKA PROTEINS LTD. VS. ITO ASST.YEAR - 2005-06 - 2 - ACT THEN ALL OTHER PROCEEDINGS GOT ABATED AS PER THE SECOND PROVISO TO SECTION 153A OF THE I.T.ACT . HE HAS THEREFORE PLEADED THAT THE IMPUGNED ASSESSMENT ORDER PASSED U/S.143(3) R.W.S. 144 OF THE ACT DATED 31/12/2007 ALSO FOR A.Y. 2005-06 SHOULD BE QUASHED. IN SUPPORT OF THIS CONTENTION AN ADDITIONAL GROUND HAS BEEN RAISED WHICH READS AS FOLLOWS:- 1. THE APPELLANT SUBMITS THAT THE SEARCH HAS TAKE N PLACE IN THE CASE OF APPELLANT ON 25.07.2007 AND IN VIEW OF THE PROVISIONS OF SECTION 153A(1) OF THE ACT THE ASSESSMENT OR REASSE SSMENT IF ANY MADE BY THE ASSESSING OFFICER RELATING TO ANY ASSES SMENT YEAR FALLING WITHIN THE PERIOD OF SIX ASSESSMENT YEARS R EFERRED TO IN SUB- SECTION(B) OF SEC.153A(1) PENDING ON THE DATE OF IN ITIATION OF THE SEARCH U/S.132 OR MAKING REQUISITION U/S.132A AS T HE CASE MAY BE SHALL ABATE. IN VIEW OF THE ABOVE PROVISIONS OF THE INCOME TAX A CT 1961 THE ASSESSMENT MADE U/S.143(3) R.W.S. 144 OF THE ACT BY PASSING AN ORDER DATED 31.12.2007 SHALL ABATE. 2. WE FIND FORCE IN THIS PRELIMINARY LEGAL OBJECTIO N OF THE APPELLANT. UNDISPUTEDLY A SEARCH U/S.132 OF THE I.T.ACT WAS C ARRIED OUT ON THE GROUP CASES OF SEJAL MAHENDRA ON 25/07/2007. AS PER THE IMPUGNED ASSESSMENT ORDER NOW IN CONSIDERATION BEFORE US A N INCOME TAX RETURN IN THE REGULAR COURSE WAS PREVIOUSLY FILED ON 31/10/20 05 SHOWING NIL INCOME AND THEREUPON THE ASSESSMENT IN QUESTION WAS COMPLETED ON 31/12/2007 U/S.143 R.W.S. 144 OF THE I.T.ACT AND TH E INCOME WAS ASSESSED AT RS.97 19 470/-. MEANING THEREBY THE ASSESSMENT ORDER IN QUESTION HAS BEEN PASSED IN THE MONTH OF DECEMBER-2007 I.E. AFTE R THE SEARCH WHICH WAS CONDUCTED IN THE MONTH OF JULY-2007. ITA NO.1566/AHD /2009 DEVIKA PROTEINS LTD. VS. ITO ASST.YEAR - 2005-06 - 3 - 3. NOW BEFORE US AN ANOTHER ORDER IS PLACED DATED 24/12/2009 WHICH HAS BEEN PASSED U/S.153A OF THE I.T.ACT WHEREIN TH E ASSESSING OFFICER HAS MENTIONED THAT EARLIER AN ORDER HAS BEEN PASSED U/S 143(3) ON 31.12.2007 AND THEREIN THAT VERY INCOME WAS ASSESS ED RELEVANT PARAGRAPH NO.5; REPRODUCED BELOW:- 5. IN THIS CASE ASSESSMENT ORDER U/S.143(3) WAS PASSED ON 31.12.2007 IN WHICH INCOME OF THE ASSESSEE WERE DET ERMINED AT RS.97 19 473/-. THE ADDITIONS WERE CONFIRMED BY LE ARNED CIT (APPEALS) VIDE ORDER DT. 29.01.2009. THEREFORE T HE CASE OF ASSESSEE IS ASSESSED AS DETERMINED VIDE ORDER U/S.1 43(3) DT. 31.12.2007 AT RS.97 19 473/-. 4. WITH THIS FACTUAL AS WELL AS LEGAL BACKGROUND W E HAVE EXAMINED THE PROVISIONS OF SECTION 153A OF THE I.T.ACT ACCO RDING TO WHICH IN THE CASE OF A PERSON WHERE A SEARCH IS INITIATED U/S.13 2 OF THE I.T.ACT THEN THE ASSESSING OFFICER SHALL ASSESS OR RE-ASSESS THE TOTAL OF INCOME OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDINGS THE ASSESSM ENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED AND THAT ASSESSMENT OR RE-ASSESSMENT IF ANY RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SIX ASSESSMENT YEARS P ENDING ON THE DATE OF THE INITIATION OF SEARCH U/S.132 OF THE I.T.ACT SHALL ABATE . IN VIEW OF THE SAID SPECIFIC PROVISION PRESCRIBED U NDER THE STATUTES THE IMPUGNED ASSESSMENT ORDER PASSED U/S.143 OF THE I.T .ACT ADMITTEDLY AFTER SEARCH SHALL ABATE. THEREFORE THE ASSESSING OFFICER WAS NOT EMPOWERED TO PASS THE ASSESSMENT ORDER AS PER LAW. WE THEREFORE HOLD THAT THE ORDER IN QUESTION DATED 31.12.07 PASSED U/S 143 (3) IS VOID AB INITO HENCE ANNULLED . BEFORE WE CEASE WITH THIS APPEAL IT IS WORTH TO ITA NO.1566/AHD /2009 DEVIKA PROTEINS LTD. VS. ITO ASST.YEAR - 2005-06 - 4 - MENTION THAT LD. LEARNED AUTHORISED REPRESENTATIVE HAS COMMENTED THAT THE ORDER PASSED U/S.153A R.W.S. 144 OF THE I.T.ACT DATED 24/12/2009 IS ALREADY SUBJECT TO APPEAL AND THOSE PROCEEDINGS ARE IN PROGRESS AS PRESCRIBED UNDER LAW. HE HAS THUS PLEADED THAT AS A RESULT THE IDENTICAL ADDITION SHOULD NOT BE ASSESSED SIMULTANEOUSLY AT T WO PLACES IN THE HANDS OF THE ASSESSEE. THESE CONCLUDING REMARKS OF LD.AR ARE HEREBY PLACED ON RECORD FOR THE SAKE OF COMPLETENESS OF TH IS ORDER ESPECIALLY CONSIDERING THE ENACTMENT OF AN ANOTHER NEWLY INSER TED SUB-SECTION (2) TO SEC. 153A W.R.A.F. 1.6.2003. THE CONDITIONS LAID DO WN THEREIN IF NEED BE AS AN INEVITABLE RESULT SHALL IPSO-FACTO APPLY. CONSEQUENTLY THE ADDITIONAL GROUND RAISED BY THE APPELLANT IS HEREBY ALLOWED AND REST OF THE GROUNDS ON QUANTUM ADDITION NEED NOT TO BE ADJU DICATED AT THIS STAGE. 5. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED PROTANTO. ORDER SIGNED DATED AND PRONOUNCED IN THE COURT ON 18/ 03 /2011. SD/- SD/- (G.D. AGARWAL) ( MUKUL KR. SHR AWAT ) .VICE PRESIDENT JUDICIAL ME MBER AHMEDABAD; DATED 18 / 03 /2011 T.C. NAIR SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE DE PARTMENT. 3. THE CIT CONCERNED. 4. THE LD. CIT( APPEALS)-VI 5. THE DR AHMEDABAD BENCH. 6. THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD ITA NO.1566/AHD /2009 DEVIKA PROTEINS LTD. VS. ITO ASST.YEAR - 2005-06 - 5 - 1. DATE OF DICTATION.. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S .. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER