Jolly Fantasy World Ltd.,, Baroda v. The ACIT., Circle-1(2),, Baroda

ITSSA 138/AHD/2005 | misc
Pronouncement Date: 29-04-2014 | Result: Allowed

Appeal Details

RSA Number 13820516 RSA 2005
Bench Ahmedabad
Appeal Number ITSSA 138/AHD/2005
Duration Of Justice 9 year(s)
Appellant Jolly Fantasy World Ltd.,, Baroda
Respondent The ACIT., Circle-1(2),, Baroda
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 29-04-2014
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 29-04-2014
Date Of Final Hearing 27-03-2014
Next Hearing Date 27-03-2014
Assessment Year misc
Appeal Filed On 29-04-2005
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH BEFORE: SRI D.K TYAGI JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI ACCOUNTAN T MEMBER SR. NO. APPELLANT IT (SS) A NO S ASSTT. YEAR RESPONDE NT 1 JOLLY FANTASY WORLD 138/AHD/2005 1986 - 87 TO 15.12.95 ACIT 2 JOLLY LEASING & FINSTOCK 140/AHD/2005 DO ACIT 3 BARODA AGRO INDUSTRIES 141/AHD/2005 DO ACIT 4 RAINBOW AGENCY 142/AHD/2005 DO ACIT 5 ISHAWAKU FINSTOCK 143/AHD/2005 DO ACIT 6 KOKILABEN A CHOKSHI 145/AHD/2005 DO ACIT 7 HITESH A CHOKSHI 146/AHD/2005 DO ACIT 8 NEELKANTH LEASE FINANCE 149/AHD/2005 DO ACIT 9 DAXABEN B CHOKSHI 152/AHD/2005 DO ACIT ASSESSEE BY: SMT. URVASHI SODHAN A.R. REVENUE BY: SRI KETAN M. PARIKH STANDING COU NSEL SRI K.C. MATHEWS. SR. D.R. DATE OF HEARING : 04-04-2014 DATE OF PRONOUNCEMENT : 29-04-20 14 / ORDER PER BENCH:- I.T(SS)A NOS. 138 140 141 142 143 145 146 149 & 152 /AHD/2005 A.Y. BLOCK ASSTT. DIFFERENT ASSESSEES V. ACIT 2 ALL THESE APPEALS OF THE ASSESSES ARE AGAINST THE DIFFERENT ORDERS OF ASSESSING OFFICER PASSED BY HIM IN PURSUANCE OF HO NBLE ITATS ORDER DATED 17-07-2003 SETTING ASIDE THE ORIGINAL ASSESSM ENT ORDERS PASSED BY AO. 2. IN ALL THESE APPEALS FOLLOWING ADDITIONAL GROUND OF APPEAL WAS TAKEN:- 1. THE ORDER PASSED U/S 158BC R.W.S. 254 OF THE AC T IS BAD IN LAW INVALID AND NOT TENABLE SINCE NO WARRANT AUTHO RIZING SEARCH WAS ISSUED IN THE NAME OF THE APPELLANT BUT ON THE BASI S OF THE WARRANT ISSUED IN THE JOINT NAMES AS SHOWN IN THE PANCHNAMA ENCLOSED HEREWITH ARUN CHOKSI SANJAY CHOKSI AND FAMILY AN D JOLLY TEA (INDIA) LTD. AND JOLLY GROUP OF COMPANIES PROCEE DINGS IN THE CASE OF THE APPELLANT WERE INITIATED. THE PROVISIONS OF LAW CLEARLY LAYS DOWN THAT NO ASSESSMENT CAN BE FRAMED WITHOUT ISSUA NCE OF VALID WARRANT AND HENCE ASSESSMENT FRAMED IS PERVERSE IN VALID AND BAD IN LAW WHEN FRAMED ON THE BASIS OF ISSUANCE OF WARR ANT IN JOINT NAMES THAT DESERVES TO BE QUASHED . WHICH WAS ADMITTED VIDE ORDER DATED 17-08-2010. TH IS ADDITIONAL GROUND WAS SUBSEQUENTLY VIDE INTERIM ORDER DATED 08-11-201 2 WAS MODIFIED AS UNDER:- WHETHER OR NOT THE ADDITIONAL GROUND IN RESPECT OF VALIDITY OF A WARRANT ALLEGED TO BE EITHER NOT ISSUED OR ISSUED I N JOINT NAMES AND ANOTHER LEGAL ISSUE OF NON- ISSUANCE OF NOTICE U/S 143 (2) CAN BE RAISED IS THE QUESTION FOR WHICH MATTER WAS HEARD . MODIFIED TO THIS EXTENT ONLY. REST OF THE INTERIM ORDER STANDS AS IT WAS. WE ORDER ACCORDINGLY.. 3. REVENUE CHALLENGED THE ABOVE MODIFIED INTERIM OR DER BEFORE HONBLE JURISDICTIONAL HIGH COURT. SPECIAL CIVIL A PPLICATION OF THE REVENUE WAS DISMISSED BY HONBLE HIGH COURT BY HOLDING AS U NDER:- I.T(SS)A NOS. 138 140 141 142 143 145 146 149 & 152 /AHD/2005 A.Y. BLOCK ASSTT. DIFFERENT ASSESSEES V. ACIT 3 '4. HEARD SHRI K. M. PARIKH LEARNED ADVOCATE APPEA RING ON BEHALF OF THE PETITIONER. AS SUCH THE LEARNED ADVOCATE APPEA RING ON BEHALF OF THE PETITIONER IS NOT IN A POSITION TO POINT OUT WH AT PREJUDICE WILL BE CAUSED TO THE DEPARTMENT. AMPLE OPPORTUNITY WILL BE GIVEN TO THE PETITIONER TO MEET WITH THE ADDITIONAL GROUND WHIC H THE ORIGINAL APPELLANT IS PERMITTED TO RAISE. WE SEE NO REASON T O INTERFERE WITH THE IMPUGNED INTERIM ORDER/ INTERLOCUTORY ORDER PAS SED BY THE LEARNED TRIBUNAL AT THIS STAGE. HOWEVER IT IS OBSE RVED THAT IN CASE ANY ORDER IS ADVERSE TO THE PETITIONER IT WILL ALW AYS BE OPEN TO THE PETITIONER TO CONTEND AND RAISE THE GROUND WHICH I S RAISED IN THE PRESENT SPECIAL CIVIL APPLICATION AT THE TIME OF FI LING OF THE APPEAL WHICH SHALL BE CONSIDERED IN ACCORDANCE WITH LAW AN D ON ITS OWN MERITS. 4. AT THE TIME OF HEARING BEFORE US LD. SPECIAL COU NSEL ON BEHALF OF THE REVENUE RAISED FOLLOWING PRELIMINARY OBJECTIONS:- I. THE ADDITIONAL GROUND RAISED BY THE RESPECTIVE A SSESSEES IS BEYOND THE SCOPE AND PURVIEW OF THE SET ASIDE PROCEEDINGS AS THE TRIBUNAL RESTORED BACK THE APPEAL TO THE FILE OF AO DIRECTIN G TO MAKE FRESH BLOCK ASSESSMENT IN ACCORDANCE WITH THE PROVISIONS OF SEC TION 158BB OF THE ACT THAT MAKES IT A CASE OF CLOSE REMAND AND NOT THE OPEN REMAND THAT BARS THE ASSESSEE TO TRAVEL BEYOND THE ORDER PASSED IN THE FIRST ROUND. II. THE AO HAS FRAMED FRESH ASSESSMENT AS PER THE D IRECTIONS OF THE HONBLE TRIBUNAL THAT HAS BECOME FINAL AND CONCLUSI VE AND THE ASSESSEE IS NOT PERMITTED TO CHALLENGE JURISDICTION OF AO IN SE COND ROUND. TRIBUNAL DOSE NOT HAVE POWER TO REVIEW ITS ORDER IN SECOND R OUND OF PROCEEDINGS. III. EXAMINATION OF VALIDITY OF SEARCH PROCEEDINGS IS OUTSIDE THE PURVIEW OF THE APPELLATE AUTHORITIES. I.T(SS)A NOS. 138 140 141 142 143 145 146 149 & 152 /AHD/2005 A.Y. BLOCK ASSTT. DIFFERENT ASSESSEES V. ACIT 4 4.1 FOR MAKING THESE SUBMISSIONS LD. SPECIAL COUNSE L RELIED UPON THE FOLLOWING CASE LAWS:- I) CIT VS. DR. A.K. BANSAL-355 ITR 513 (ALL) II) TRILOK SINGH DHILLON V CIT-332 ITR 185 (CHATTIS GARH) III) MB LAL V CIT-279 ITR 298 (DEL) IV) RITZ THREATRE V ITO-236 CTR 246 (DEL) V) U.S. SRINASTAVA EDUCATIONAL MEMORIAL SOCIETY V A CIT-82 TTJ 471 (LUCK) VI) SAHELI SYNTHICS PVT. LTD V CIT-302 ITR 126 (GUJ ) VII) BASUDEO PRASAD AGARWALLA V ITO- 180 ITR 388 (C AL) VIII) SHRI VINDHYA VASINI PRASAD GUPTA V CIT- 186 I TR 253 (ALL) XI) CIT V S.V. DIVAKAR-201 ITR 914 (ORISSA) 5. IN REPLY TO ABOVE ASSESSEES CONTENTION WAS THAT ASSESSEE WAS NOT BARRED FROM RAISING A LEGAL GROUND AT ANY STAGE OF THE PROCEEDINGS. PLACING RELIANCE ON THE DECISION OF JURISDICTIONAL HIGH COURT IN THE CASE OF P.V. DOSHI VS. CIT AS WELL SHRIMANT FP GAEKWAD (DEE D.) V ASST. CWT. IT WAS ALSO SUBMITTED THAT HONBLE TRIBUNAL HAS ALL TH E POWERS TO ADJUDICATE AS TO WHETHER ASSESSMENT FRAMED WERE WITHOUT JURISD ICTION OR NOT. THE CASE LAWS RELIED BY THE REVENUE WERE ALSO DISTINGUI SHED AND IT WAS SUBMITTED THAT ADDITIONAL GROUND TAKEN BY THE ASSES SEE MAY KINDLY BE ADJUDICATED AND ALLOWED. 6. AFTER HEARING BOTH THE PARTIES IN RESPECT OF PRE LIMINARY CONTENTIONS RAISED BY THE REVENUE WE ARE OF THE CONSIDERED OPI NION THAT THESE OBJECTIONS SHOULD HAVE BEEN RAISED BY THE REVENUE A T THE TIME OF ADMISSION OF THE ADDITIONAL GROUND BY THE HONBLE T RIBUNAL. SINCE ADMISSION OF ADDITIONAL GROUND HAS BEEN UPHELD BY T HE HONBLE HIGH COURT BY OBSERVING AS UNDER:- I.T(SS)A NOS. 138 140 141 142 143 145 146 149 & 152 /AHD/2005 A.Y. BLOCK ASSTT. DIFFERENT ASSESSEES V. ACIT 5 HOWEVER IT IS OBSERVED THAT IN CASE ANY ORDER IS A DVERSE TO THE PETITIONER IT WILL ALWAYS BE OPEN TO THE PETITIONER TO CONTEND AND RAISE THE GROUND WHICH IS RAISED IN THE PRESENT SPECIAL CIVIL APPLIC ATION AT THE TIME OF FILING OF THE APPEAL WHICH SHALL BE CONSIDERED IN ACCORDAN CE OF LAW AND ON ITS MERIT. WE ARE REFRAINING OURSELVES FROM ADJUDICATING THE SE PRELIMINARY OBJECTIONS RAISED BY THE REVENUE. 7. NOW COMING TO THE MERITS OF THE ADDITIONAL GROUN D AFTER HEARING BOTH THE PARTIES PERUSING THE RECORD AND CASE LAWS RELI ED BY BOTH THE PARTIES WE FIND THAT IN THE PANCHNAMA (FILED ALONG WITH ADD ITIONAL GROUND) PREPARED BY THE REVENUE AT THE TIME OF SEARCH IN THE COLUMN A FOLLOWING NARRATION IS MENTIONED:- WARRANT IN THE CASE OF: ARUN CHOKSI SANJAY CHOKSI AND FAMILY AND JOLLY TEA (INDIA) LTD. AND JOLLY GROUP OF COMPANIES IT IS CLEAR FROM THE ABOVE THAT NONE OF THE ASSSESS EES NAME IS APPEARING IN ABOVE NARRATION. THE ISSUE TO BE DECIDED BY US IN THESE APPEALS IS WHETHER IN THE ABSENCE OF NAMES OF THE ASSESSEES ON THE WARRANT AUTHORIZING SEARCH CAN PROCEEDINGS U/S. 158BC BE IN ITIATED AGAINST THEM OR NOT. TO DECIDE THE ISSUE THE PROVISIONS OF SECT ION 292CC OF THE INCOME TAX ACT INSERTED W.E.F. 1 ST APRIL 1976 ARE RELEVANT AND FOR THE SAKE OF CONVENIENCE THE SAME ARE REPRODUCED AS UNDER:- '292CC. AUTHORISATION AND ASSESSMENT IN CASE OF SEA RCH OF REQUISITION. - (1) NOTWITHSTANDING ANYTHING CONTAINED IN THIS ACT- (I) IT SHALL NOT BE NECESSARY TO ISSUE AN AUTHORISA TION UNDER SECTION 132 OR MAKE A REQUISITION UNDER SECTION 132A SEPARA TELY IN THE NAME OF EACH PERSON; I.T(SS)A NOS. 138 140 141 142 143 145 146 149 & 152 /AHD/2005 A.Y. BLOCK ASSTT. DIFFERENT ASSESSEES V. ACIT 6 (II) WHERE AN AUTHORISATION UNDER SECTION 132 HAS B EEN ISSUED OR REQUISITION UNDER SECTION 132A HAS BEEN MADE MENTIO NING THEREIN THE NAME OF MORE THAN ONE PERSON THE MENTION OF SU CH NAMES OF MORE THAN ONE PERSON ON SUCH AUTHORISATION OR REQUI SITION SHALL NOT BE DEEMED TO CONSTRUE THAT IT WAS ISSUED IN THE NAM E OF AN ASSOCIATION OF PERSONS OR BODY OF INDIVIDUALS CONSI STING OF SUCH PERSONS. (2) NOTWITHSTANDING THAT AN AUTHORISATION UNDER SEC TION 132 HAS BEEN ISSUED OR REQUISITION UNDER SECTION 132A HAS B EEN MADE MENTIONING THEREIN THE NAME OF MORE THAN ONE PERSON THE ASSESSMENT OR REASSESSMENT SHALL BE MADE SEPARATELY IN THE NAME OF EACH OF THE PERSONS MENTIONED IN SUCH AUTHORISAT ION OR REQUISITION. 8. IT IS CLEAR FROM THE ABOVE THAT FOR MAKING ASSES SMENT U/S. 158BC OF THE ACT IT IS NOT NECESSARY TO ISSUE AUTHORIZATION U/S. 132 OR MAKE REQUISITION U/S. 132A SEPARATELY IN THE NAME OF EAC H PERSON. AUTHORIZATION OR REQUISITION IN THE NAME OF MORE THAN ONE PERSON IS PERMISSIBLE. HOWEVER ASSESSMENT OR RE-ASSESSMENT CAN BE MADE ONL Y IF THE NAME OF THE PERSON IS MENTIONED IN SUCH AUTHORIZATION OR RE QUISITION. SINCE THERE IS NO DISPUTE ABOUT THE FACT THAT NAMES OF THESE ASSES SEES ARE NOT APPEARING IN THE AUTHORIZATION/REQUISITION PROCEEDINGS INITI ATED U/S. 158BC OF THE ACT AGAINST THEM ARE VOID AB-INITIO. IN THE CASE OF CIT V. MS. PUSHPA RANI [2004] 136 TAXMAN 627 HONBLE HIGH COURT OF DELHI H AS HELD THAT WHERE NO SEARCH WARRANT IS ISSUED IN NAME OF ASSESSEE PROCEE DINGS INITIATED U/S. 158BC ARE AB-INITIO VOID AND WITHOUT JURISDICTION. IN THE CASE LAWS RELIED BY THE REVENUE NAMES OF THE PERSONS ASSESSED WERE THERE IN THE AUTHORIZATION AND THEREFORE IN THOSE CASES ASSESSME NT FRAMED BY AO WERE HELD TO BE VALID. IN VIEW OF THE ABOVE ADDITIONAL GROUND RAISED BY THE ASSESSEES IS ALLOWED. 9. IN VIEW OF OUR ABOVE DECISION OTHER GROUNDS TAK EN BY THE ASSESSEES DO NOT REQUIRE ADJUDICATION. I.T(SS)A NOS. 138 140 141 142 143 145 146 149 & 152 /AHD/2005 A.Y. BLOCK ASSTT. DIFFERENT ASSESSEES V. ACIT 7 10. IN THE RESULT ASSESSSEES APPEALS ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE SD/- SD/- (ANIL CHATURVEDI) ( D.K. TYAGI) ACCOUNTANT MEMBER J UDICIAL MEMBER AHMEDABAD : DATED 29/04/2014 AK / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER/ /