Planet Educational Consultants, Ahmedabad v. The Dy.CIT.,Cent.Circle-2(2),, Ahmedabad

ITSSA 167/AHD/2009 | 2004-2005
Pronouncement Date: 13-01-2011 | Result: Allowed

Appeal Details

RSA Number 16720516 RSA 2009
Bench Ahmedabad
Appeal Number ITSSA 167/AHD/2009
Duration Of Justice 1 year(s) 1 month(s) 10 day(s)
Appellant Planet Educational Consultants, Ahmedabad
Respondent The Dy.CIT.,Cent.Circle-2(2),, Ahmedabad
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 13-01-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 13-01-2011
Date Of Final Hearing 11-01-2011
Next Hearing Date 11-01-2011
Assessment Year 2004-2005
Appeal Filed On 03-12-2009
Judgment Text
- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B AHMEDABAD BEFORE S/SHRI MUKUL KUMAR SHRAWAT JM AND D.C.AGRAW AL AM PLANET EDUCATIONAL CONSULTANTS 3 SREEPALNAGAR SOCIETY OPP. HOTEL FOURTUNE LANDMARK USMANPURA AHMEDABAD. VS. DY. CIT CEN.CIR.2(2) AHMEDABAD. (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI S. N. DIVETIA AR RESPONDENT BY:- SHRI ALOK JOHRI CIT DR O R D E R PER D.C. AGRAWAL ACCOUNTANT MEMBER . THIS IS AN APPEAL FILED BY THE ASSESSEE RAISING FO LLOWING GROUNDS :- 1.1 THE ORDER PASSED U/S 250 OF THE ACT ON 18.09.2009 F OR ASST. YEAR 2004-05 BY CIT(A)-III ABAD UPHOLDING THE ADDITION OF RS.2 95 000/- MADE BY THE AO IS WHOLLY ILLEGAL UNL AWFUL AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 1.2 THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN UPHOLDING TH E ORDER PASSED BY AO WITHOUT CONSIDERING FULLY AND PROPERLY THE EX PLANATION OFFERED AND EVIDENCE PRODUCED BY THE APPELLANT. 2.1 THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND/OR O N FACTS IN UPHOLDING THAT (A) THE ENTRIES IN THE IMPUGNED DOCU MENT HAD IMMEDIATE AND DIRECT NEXUS TO THE BUSINESS/PARTNERS OF THE APPELLANT FIRM (B) THE AO HAD ESTABLISHED THE QUANT UM NAME OF PERSONS NATURE OF TRANSACTIONS ETC. WHICH WERE NOT REFUTED IN ANY MANNER. IT(SS)A NO.167/AHD/2009 ASST. YEAR 2004-05 IT(SS)A NO.167/AHD/2009 ASST. YEAR 2004-05 2 2.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW THE LD. CIT(A) OUGHT NOT TO HAVE CONFIRMED THE ADDI TION OF RS.2 95 000/- AS SUPPRESSED INCOME OF THE APPELLANT FIRM. 3.1 THE LD. CIT(A) HAS FILED TO APPRECIATE THAT THE PRO CEEDINGS INITIATED U/S 153A BY AO FOR ASST. YEAR 2004-05 ITSELF WERE I LLEGAL BAD IN LAW AND WITHOUT JURISDICTION INASMUCH AS ONLY SURVE Y OPERATIONS U/S 133A WERE CARRIED OUT AT THE BUSINESS PREMISES OF THE APPELLANT FIRM AND THE IMPUGNED DOCUMENTS WERE FOUND DURING T HE COURSE OF SEARCH U/S 132(1) AT THE RESIDENTIAL PREMISES OF IT S PARTNER. 2. DURING THE COURSE OF HEARING THE LD. AR FOR THE ASSESSEE SUBMITTED THAT GROUND NO.3.1 GOES TO THE ROOT OF THE MATTER. THE ASSESSMENT HAS BEEN DONE UNDER SECTION 153A WHEREAS NO SEARCH WARR ANT HAS BEEN ISSUED IN THE CASE OF THE ASSESSEE. ACCORDINGLY THE AO DO ES NOT GET JURISDICTION TO FRAME ASSESSMENT UNDER SECTION 153A. 3. HE ALSO FAIRLY ADMITTED THAT THIS ISSUE WAS NOT RAISED BEFORE THE LD. CIT(A) AND HAS BEEN FIRSTLY TAKEN UP BEFORE THE TRI BUNAL. SINCE IT IS A LEGAL ISSUE IT IS REQUIRED TO BE ADJUDICATED IN VI EW OF THE DECISION OF THE HON. SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. VS. CIT (1998) 229 ITR 383 (SC). 4. THE LD. DR ON THE OTHER HAND SUBMITTED THAT THIS GROUND SHOULD NOT BE ADMITTED AS IT WAS NOT RAISED BEFORE THE LD. CIT (A). THE LD. DR ALSO SUBMITTED THAT SOME MATERIAL AS REFERRED TO BY AO I N HIS ORDER WAS FOUND AT THE PREMISES OF SHRI SANKET C. SHAH WHICH RELAT ED TO THE ASSESSEE THEREFORE BY VIRTUE OF SECTION 292B THE ASSESSMENT SHOULD BE TREATED AS PASSED U/S 153C. 5. WE HAVE HEARD THE PARTIES AND HAVE CAREFULLY CON SIDERED THE ISSUE BEFORE US. WE ARE OF THE VIEW THAT THE ISSUE RAISED BY THE LD. AR IS LEGAL AND JURISDICTIONAL. IF NO SEARCH WARRANT IS ISSUED ASSESSMENT U/S 153A IT(SS)A NO.167/AHD/2009 ASST. YEAR 2004-05 3 WOULD BE INVALID AND FURTHER IF ASSESSMENT COULD NO T BE DONE UNDER SECTION 153A WHETHER IT CAN BE SAID TO BE VALID UND ER SECTION 153C AS SOME MATERIAL WAS FOUND IN THE CASE OF THE PERSON S EARCHED NAMELY SHRI SANKET C. SHAH WHO IS RELATED TO THE ASSESSEE. ACCO RDINGLY WE RESTORE THE MATTER TO THE FILE OF LD. CIT(A) TO FIND OUT WH ETHER ANY SEARCH WARRANT WAS ISSUED IN THE CASE OF THE ASSESSEE AND WHETHER ASSESSMENT CAN BE SAID TO HAVE VALIDLY MADE UNDER SECTION 153C ALSO BY VIR TUE OF SECTION 292B. THE APPEAL FILED BY THE ASSESSEE IS ALLOWED BUT FOR STATISTICAL PURPOSES. 6. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED BUT FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN OPEN COURT ON 13/1/11 SD/- SD/- (MUKUL KR. SHRAWAT) (D.C. AGRAWAL) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD DATED : 13.1.11 MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER DEPUTY / ASSTT.REGISTRAR ITAT AHMEDABAD IT(SS)A NO.167/AHD/2009 ASST. YEAR 2004-05 4 1.DATE OF DICTATION 11/1/2011 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 12/1/ 2011 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 DICTATING 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 ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..