T DCIT, Sagar v. Shri Pradeep Kesherwani,, Bhopal

ITA 95/JAB/2007 | 2003-2004
Pronouncement Date: 15-03-2011 | Result: Dismissed

Appeal Details

RSA Number 9522714 RSA 2007
Assessee PAN AFFPK9930H
Bench Indore
Appeal Number ITA 95/JAB/2007
Duration Of Justice 3 year(s) 11 month(s) 23 day(s)
Appellant T DCIT, Sagar
Respondent Shri Pradeep Kesherwani,, Bhopal
Appeal Type Income Tax Appeal
Pronouncement Date 15-03-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 15-03-2011
Date Of Final Hearing 22-10-2010
Next Hearing Date 22-10-2010
Assessment Year 2003-2004
Appeal Filed On 22-03-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH : INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER AND SHRI R.C.SHARMA ACCOUNTANT MEMBER PAN NO. : AFFPK9930H I.T.A.NO.90 94 & 95/JAB/2007 A.Y. : 1998-99 2002-03 & 2003-04 DY. CIT SHRI PRADEEP KESHERWANI CIRCLE SAGAR VS. 99 BRIGHT COLONY IDGAH HILLS BHOPAL. APPELLANT RESPONDENT APPELLANT BY : SHRI K.K.SINGH CIT DR RESPONDENT BY : SHRI H.P.VERMA ADV.AND SHRI ASHISH GOYAL C. A. O R D E R PER R. C. SHARMA A.M. THESE ARE THE APPEALS FILED BY THE REVENUE AGAINST THE CONSOLIDATED ORDER OF CIT(A) DATED 18.01.2007 FOR T HE ASSESSMENT YEARS 1998-99 TO 2004-05 IN THE MATTER O F ORDER PASSED U/S 153A READ WITH SECTION 143(3) OF THE INC OME-TAX ACT 1961. -: 2: - 2 2. COMMON GROUNDS HAVE BEEN TAKEN IN ALL THE THREE YEARS UNDER CONSIDERATION WHICH READ AS UNDER :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN NOT APPRECIATING THE MERITS OF THE CASE AND TREATING THE ORDER OF THE AO TO BE AB INITIO NULL AND VOID. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN NOT CONSIDERING THE PROVISIONS OF SECTION 292B OF THE INCOME-TAX ACT 1961. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN NOT CONSIDERING THE SECTION OF HON'BLE HIGH COURT OF MADRAS IN THE CASE OF AREVA T & D INDIA LIMITED VS. ACIT CASE NO.2278 OF 2006 (2007) CTR (MAD) 497 WHEREIN IT IS HELD THAT MERE PROCEDURAL IRREGULARITIES WILL NOT MAKE T HE ASSESSMENT NULLITY IN LAW. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE ORDER OF THE LD. CIT(A) ON THE ABOVE ISSUES MAY BE SET ASIDE AND THAT OF THE AO BE RESTORED. -: 3: - 3 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORDS PERUSED. 4. FACTS IN BRIEF ARE THAT SEARCH ACTION U/S 132 WAS INITIATED AGAINST MR.SANTOSH KUMAR SAHU AND M/S. AS HOK TRADERS. HOWEVER NOTICE U/S 153A WAS ISSUED IN THE NAME OF ASSESSEE AGAINST WHOM NO SEARCH ACTION WAS CARRIED OUT IN PURSUANCE TO WARRANT OF AUTHORIZATION ISSUED IN HIS NAME. MAIN PLEA OF THE ASSESSEE WAS THAT THERE WAS NO WAR RANT OF AUTHORIZATION WHICH HAD BEEN ISSUED AND EXECUTED I N ASSESSEES OWN CASE. ACCORDINGLY IT WAS PLEADED TH AT ASSUMPTION OF JURISDICTION BY THE ASSESSING OFFICER TO FRAME ASSESSMENT U/S 153A WAS AB INITIO VOID AND UNLAWFUL . 5. AT THE OUTSET IT WAS SUBMITTED BY THE LD. AUTHORIZ ED REPRESENTATIVE THAT IN CASE OF ASSESSEE SHRI PRADEE P KESHARWANI AGAINST THE VERY SAME ORDER OF CIT(A) D ATED 18 TH JANUARY 2007 APPEALS WERE FILED BY THE DEPARTMENT IN RESPECT OF ASSESSMENT YEAR 1999-2000 2000-01 2001 -02 AND 2004-05 AND ON THE SIMILAR FACTS THE CIT(A) HAS CO NCLUDED THAT PROCEEDINGS INITIATED U/S 153A WAS AB INITIO N ULL AND VOID. AN APPEAL WAS FILED BY THE DEPARTMENT AGAINST THIS ORDER -: 4: - 4 OF THE CIT(A) BEFORE THE TRIBUNAL JABALPUR BENCH A ND THE JABALPUR BENCH VIDE ORDER DATED 26.4.2007 DISMISSED ALL THE FOUR APPEALS OF THE REVENUE. HE ACCORDINGLY PLEAD ED THAT THE ISSUE IN QUESTION IS SQUARELY COVERED BY THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEARS 1999-2000 TO 2001-02 AND 2004-05. 6. WE HAVE CONSIDERED THE RIVAL CONTENTIONS CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AN D ALSO ORDER OF THE TRIBUNAL DATED 26.4.2007 IN ASSESSEES OWN CASE IN RESPECT OF FOUR ASSESSMENT YEARS WHICH WAS ALSO DECIDED IN THE SAME BUNCH OF APPEAL BY THE LD. CIT(A) VIDE ORD ER DATED 18 TH JANUARY 2007. THERE IS NO DISPUTE WITH REGARD TO THE FACTUAL POSITION THAT NO SEARCH WAS CARRIED OUT AT ASSESSEES PREMISES IN PURSUANCE OF AUTHORIZATION ISSUED IN TH E NAME OF THE ASSESSEE. IT IS ALSO CLEAR FROM THE ORDER OF TH E CIT(A) THAT IN PURSUANCE OF THE LEGAL OBJECTION OF THE ASSESSEE FOR FRAMING ASSESSMENT U/S 153A REPORT WAS SOUGHT FROM THE AO WHICH HE FILED VIDE LETTER DATED 29.12.2006. IN THE REPLY THE AO HAS STATED THAT THE ASSESSEE IN RESPONSE TO THE NOTICE U/S 153A DID NOT FILE ANY OBJECTION AND IN VIEW OF THIS FACT THE OBJECTION -: 5: - 5 NOW RAISED DESERVES TO BE REJECTED. IT WAS ALSO ADM ITTED THAT WARRANT OF AUTHORIZATION IN PURSUANCE TO WHICH HIS RESIDENCE WAS COVERED WAS IN THE NAMES OF MR. SANTOSH KUMAR S AHU AND M/S. ASHOK TRADERS AND DURING THE COURSE OF THI S SEARCH ACTION INCRIMINATING DOCUMENTS LIKE BANK PASS BOOK AND CASH WERE SEIZED. THE LD. CIT(A) HAS CONSIDERED THE COMM ENTS OF THE AO. THE TRIBUNAL IN ITS ORDER DATED 26.4.2007 AFTER ELABORATELY DISCUSSING THE PROVISIONS OF SECTION 153A HELD AS U NDER :- SINCE LANGUAGE OF THE PROVISION IS VERY CLEAR WHIC H MANDATES THAT NOTICE UNDER THIS SECTION CAN BE ISSUED TO SUCH PERSON IN WHOSE CASE SEARCH IS INITIATED U/S 132 OR BOOKS OF ACCOUNT OTHER DOCUMENTS OR ANY OTHER ASSETS ARE REQUISITIONED U/S 132A AFTER THE 31 ST DAY OF MAY 2003 AND UNDISPUTEDLY NEITHER ANY SEARCH ACTION U/S 132 HAS BEEN AUTHORIZED OR CONDUCTED IN THIS CASE NOR BOOKS OF ACCOUNT OTHER DOCUMENTS OR ANY OTHER ASSETS ARE REQUISITIONED U/S 132A AT ALL AFTER THE STIPULATED DATE THEREFORE I AM OF THE CONSIDERED VIEW THAT NEITHER ANY NOTICE COULD BE ISSUED UNDER THIS -: 6: - 6 SECTION NOR ASSESSMENT BE FRAMED U/S 153A OF THE INCOME-TAX ACT 1961 IN VIEW OF FACTS CIRCUMSTANCES AND DISCUSSIONS AS HELD IN THE EARLIER PARAGRAPHS. SO THE ACTION OF THE AO IN THIS REGARD IS UNWARRANTED UNCALLED FOR AND BAD IN LAW WHICH HAS RIGHTLY BEEN HELD TO BE AB INITIO VOID BY LD. CIT(A). WHILE CONCURRING WITH HIS FINDINGS AND CONCLUSION IN VIEW OF SPECIFIC PROVISION IN THIS REGARD AND INTERPRETATIONS AS GIVEN BY VARIOUS COURTS I UPHOLD THE ACTION OF THE LD. CIT(A) AND DISMISS ALL THE APPEALS OF THE REVENUE. 7. THE FACTS IN ALL THE THREE ASSESSMENT YEARS UNDER CONSIDERATION ARE ALSO FOUND TO BE PARI-MATERIA WI TH THE FACTS OF ASSESSMENT YEAR 1999-2000 TO 2001-02 AND 2004-05 WHICH HAS BEEN DEALT WITH BY THE TRIBUNAL IN ITS ORDER AN D HAS BEEN NARRATED IN PARAS 2 3 4 & 5 OF HIS ORDER WHICH R EADS AS UNDER :- 2. THESE APPEALS ARISE OUT OF THE CONSOLIDATED ORDER WERE HEARD TOGETHER AND INVOLVE SAME -: 7: - 7 FACTS AND SIMILAR ISSUE HENCE BEING DISPOSED OFF BY SINGLE ORDER FOR THE SAKE OF CONVENIENCE. 3. BEFORE LD. CIT(A) IN ALL THESE CASES A BASIC OBJECTION WAS RAISED VIZ. THAT THE NOTICES ISSUED U/S 153A WAS VOID OF JURISDICTION AND HENCE THE IMPUGNED ORDERS SO PASSED ARE AB INITIO NULL AND VOID FOR THE REASON THAT NO SEARCH ACTION HAD BEEN AUTHORIZED IN THE CASE OF THE ASSESSEE. NOTICE U/S 153A CAN ONLY BE ISSUED IN A CASE WHERE ACTION HAS BEEN CARRIED OUT IN PURSUANT TO WARRANT OF AUTHORIZATION ISSUED IN THAT CASE IT IS STATED BEFORE THE FIRST APPELLATE AUTHORITY THAT THERE WAS NO WARRANT OF AUTHORIZATION WHICH HAD BEEN ISSUED AND EXECUTED IN THE ASSESSEES OWN CASE. A COPY OF THIS PRELIMINARY OBJECTION WAS GIVEN TO THE AO FOR HIS COMMENTS WHICH HE FILED VIDE LETTER DATED 29.12.06. IN REPLY THE AO HAS STATED THAT THE ASSESSEE IN RESPONSE TO THE NOTICE U/S 153A DID NOT FILE ANY OBJECTION AND IN VIEW OF -: 8: - 8 THIS FACT THE OBJECTION NOW RAISED DESERVES TO BE REJECTED. FURTHER THE RESIDENTIAL PREMISES OF THE ASSESSEE HAD BEEN COVERED UNDER A SEARCH ACTION BUT AT THE SAME TIME HAS ADMITTED THE WARRANT OF AUTHORIZATION IN PURSUANCE TO WHICH HIS RESIDENCE WAS COVERED WAS IN THE NAMES OF MR. SANTOSH KUMAR SAHU & M/S. ASHOK TRADERS AND DURING THE COURSE OF THIS SEARCH ACTION INCRIMINATING DOCUMENT LIKE BANK PASS BOOKS AND CASH WERE SEIZED. FURTHER IN PARA 6 HE HAS CONCLUDED THAT IN VIEW OF THESE FACTS THE PROCEEDINGS U/S 153A MAY BE HELD TO BE VALIDLY INITIATED. 4. IN ORDER TO COUNTER THE COMMENTS OF THE AO THE ASSESSEES COUNSEL HAS STATED BEFORE THE FIRST APPELLATE AUTHORITY THAT AO HAS SOUGHT TO JUSTIFY ASSUMPTION OF JURISDICTION TO PROCEED AGAINST THE ASSESSEE ON THE GROUND THAT IN RESPONSE TO THE NOTICE ISSUED U/S 153A THE ASSESSEE DID NOT RAISE ANY OBJECTION. IT IS A WELL -: 9: - 9 SETTLED POSITION OF LAW THAT THE LEGALITY OF AN ORDER CAN BE QUESTIONED AT ANY STAGE. AS PER THE PROVISIONS OF SECTION 153A THE PRE- REQUISITE CONDITION TO ASSUME JURISDICTION TO PROCEED AGAINST A PERSON IS THAT A SEARCH ACTION SHOULD HAVE BEEN CARRIED OUT IN PURSUANT TO THE WARRANT OF AUTHORIZATION ISSUED IN THE NAME OF THAT PERSON AS THE WORDS USED FOR ASSUMING JURISDICTION IN THE NAME OF THAT PERSON AS THE WORDS USED FOR ASSUMING JURISDICTION IN THIS SECTION ARE IN THE CASE OF A PERSON WHERE A SEARCH ACTION IS INITIATED. THIS FACT HAS EVEN BEEN CLEARLY STATED IN SECTION 153B(2)(A) WHICH IS REPRODUCED HEREUNDER : IN THE CASE OF SEARCH ON THE CONCLUSION OF SEARCH AS RECORDED IN THE LAST PANCHNAMA DRAWN IN RELATION TO ANY PERSON IN WHOSE CASE THE WARRANT OF AUTHORIZATION HAS BEEN ISSUED. -: 10: - 10 5. THE AO HAS NOT DISPUTED THE FACT THAT NO SEARCH ACTION HAS BEEN INITIATED IN THE CASE OF THE ASSESSEE. HIS RESIDENCE WAS COVERED IN PURSUANT TO THE SEARCH ACTION INITIATED IN THE CASE OF MR. SANTOSH KUMAR SAHU AND M/S. ASHOK TRADERS. THE AO THUS HAS WRONGLY ASSUMED JURISDICTION U/S 153A TO PROCEED AGAINST THE ASSESSEE. IT WAS THUS PLEADED THAT THE ORDERS SO PASSED THEREFORE ARE AB INITIO NULL AND VOID. 8. AS THE FACTS ARE COMMON THE ISSUE UNDER DISPUTE IS SQUARELY COVERED BY THE ORDER OF THE TRIBUNAL IN AS SESSEES OWN CASE FOR THE REMAINING ASSESSMENT YEARS COMPRI SING IN THE SAME ORDER OF THE CIT(A) WE RESPECTFULLY FOLLO W THE ORDER OF THE TRIBUNAL AND UPHOLD THE ACTION OF THE CIT(A). 9. IN THE RESULT ALL THE APPEALS OF THE REVENUE ARE DISMISSED. -: 11: - 11 THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 15 TH MARCH 2011. SD/- SD/- (JOGINDER SINGH) ( R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 15 TH MARCH 2011. CPU* 14163