The ACIT, 1(1), v. Smt. Beenu Agrawal,

ITSSA 184/IND/2007 | misc
Pronouncement Date: 05-02-2010 | Result: Dismissed

Appeal Details

RSA Number 18422716 RSA 2007
Bench Indore
Appeal Number ITSSA 184/IND/2007
Duration Of Justice 2 year(s) 4 month(s) 2 day(s)
Appellant The ACIT, 1(1),
Respondent Smt. Beenu Agrawal,
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 05-02-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 05-02-2010
Date Of Final Hearing 27-01-2010
Next Hearing Date 27-01-2010
Assessment Year misc
Appeal Filed On 03-10-2007
Judgment Text
PAGE 1 OF 7 - I.T(SS).A.NOS. 184/IND/2007 & 185/IN D/2007 SMT.BINU AGARWAL AND SMT. SADHNA DEVI AGRAWAL IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH : INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER AND SHRI V.K. GUPTA ACCOUNTANT MEMBER PAN NO. : N.A. I.T(SS).A.NO. 184/IND/2007 BLOCK PERIOD : 1.4.1996 TO 23.10.2002 ACIT SMT. BEENU AGRAWAL 1(1) VS 9 TH LANE BHOPAL ITARSI APPELLANT RESPONDENT PAN NO. : N.A. I.T(SS).A.NO. 185/IND/2007 BLOCK PERIOD : 1.4.1996 TO 23.10.2002 ACIT SMT. SADHNA DEVI AGRAWAL 1(1) VS 9 TH LANE BHOPAL ITARSI APPELLANT RESPONDENT APPELLANT BY : SMT.APARNA KARAN SR. DR RESPONDENTS BY : SHRI ANIL KHABYA C. A. DATE OF HEARING : 27/01/2010 PAGE 2 OF 7 - I.T(SS).A.NOS. 184/IND/2007 & 185/IN D/2007 SMT.BINU AGARWAL AND SMT. SADHNA DEVI AGRAWAL O R D E R PER V.K. GUPTA A.M. THESE APPEALS FILED BY THE DIFFERENT ASSESSEES ARI SE OUT OF THE ORDER OF LD. CIT(A)-I DATED 23.7.2007. 2. WE HAVE HEARD BOTH THE PARTIES AND HAVE ALSO PERUSE D THE MATERIAL AVAILABLE ON RECORD. 3. IN BOTH THESE APPEALS THE REVENUE HAS CHALLENGED T HE DECISION OF THE LD. CIT(A) ON MERITS AS WELL AS ON HIS FINDI NG THAT ASSESSMENT ORDER WAS LIABLE TO BE QUASHED IN VIEW OF THE NON-R ECORDING OF SATISFACTION. 4. THE FACTS IN BRIEF ARE THAT AS A CONSEQUENCE OF S EARCH AT THE PREMISES OF SANWARIA GROUP AT ITARSI NOTICE U/S 15 8BD WAS ISSUED ON 1.12.2004 REQUIRING THE ASSESSEE TO FILE BLOCK RETU RN. AS PER THE ASSESSMENT ORDER NOTICE U/S 143(2) WAS ALSO ISSUE D ON 15/9/2006 FIXING THE DATE OF HEARING AS ON 3.10.2006. HOWEVER NOBOD Y ATTENDED THE HEARING ON THAT DATE. THE NOTICE ISSUED U/S 142(1) ON THE SAME DATE ALSO REMAINED UNRESPONDED. THEREAFTER THE A.O. COMPLETE D THE ASSESSMENT BY MAKING VARIOUS ADDITION ON THE BASIS OF SEIZED DOCU MENTS FOUND DURING THE COURSE OF SEARCH PURPORTEDLY BELONGING TO THE A SSESSEE. AGGRIEVED BY THIS THE ASSESSEE CARRIED THE MATTER INTO APPEAL B EFORE THE LD. CIT(A) WHEREIN THE ASSESSMENT ORDER WAS CHALLENGED ON PREL IMINARY GROUND OF PAGE 3 OF 7 - I.T(SS).A.NOS. 184/IND/2007 & 185/IN D/2007 SMT.BINU AGARWAL AND SMT. SADHNA DEVI AGRAWAL NON-RECORDING OF SATISFACTION AS REQUIRED IN LAW AN D IN VIEW OF THE DECISION OF THE LAW HON'BLE SUPREME COURT IN THE CA SE OF MANISH MAHESHWARI VS. ACIT AS REPORTED IN 289 ITR 341. IT WAS ALSO SUBMITTED THAT NOTICE U/S 143(2) WAS ISSUED AFTER THE PERIOD STIPULATED U/S 143(2) HENCE FOR THIS REASON ALSO THE ASSESSMENT WAS VOID . THE LD. CIT(A) AGREEING WITH THESE CONTENTIONS OF THE ASSESSEE QUA SHED THE ASSESSMENT PROCEEDINGS FOR BOTH THESE REASONS. THE RELEVANT FI NDINGS OF THE LD. CIT(A) ARE AS UNDER :- I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE LD. AR AND FOUND FORCE IN HIS ARGUMENTS. THE PROCEDURE OF BLOC K ASSESSMENT HAS BEEN PRESCRIBED U/S 158BC. UNDER SECTION (B) OF SECTION 158BC IT IS PROVIDED THAT PROVISIONS OF SECTION 142 143(20 AND 143(3) ARE APPLICABLE TO BLOCK PROCEEDINGS ALSO. TH E NOTICE U/S 143(2) HAS TO BE ISSUED WITHIN 12 MONTHS OF FILING OF THE RETURN IF THE RETURN IS NOT ACCEPTED AS TRUE. IN THE INSTANT CASE IT IS ADMITTED THAT THE NOTICE WAS ISSUED ON 15.09.2006 W HEN THE RETURN WAS FILED ON 18.01.2005. THE ASSESSMENT PROC EEDINGS CONDUCTED ON THE BASIS OF SUCH NOTICE IS BAD IN LAW AND THE ASSESSMENT ORDER IS ALSO BAD IN LAW. THE A.O. HAS ALSO NOT RECORDED ANY SATISFACTION TO THE EFFECT THAT ANY UN DISCLOSED INCOME BELONGS TO THE APPELLANT BEFORE ISSUING NOTI CE U/S 158BD. MERELY ON THE BASIS OF DOCUMENTS FOUND IN THE COURS E OF SEARCH IT PAGE 4 OF 7 - I.T(SS).A.NOS. 184/IND/2007 & 185/IN D/2007 SMT.BINU AGARWAL AND SMT. SADHNA DEVI AGRAWAL CANNOT BE INFERRED THAT ANY INCOME WAS UNDISCLOSED. AT THE TIME OF SEARCH MANY DOCUMENTS CAN BE FOUND WHICH MAY HAV E BEEN ALREADY DISCLOSED TO INCOME TAX DEPARTMENT. THE A.O . IS REQUIRED TO VERIFY THESE DOCUMENTS AND FORM HIS SAT ISFACTION BEFORE EMBARKING ON PROCEEDING U/S 158BD. FAILURE T O RECORD SUCH SATISFACTION VITIATES THE PROCEEDING OF ASSESS MENT. IN VIEW OF THE FACT CIRCUMSTANCES AND LEGAL POSITION THE ORD ER OF ASSESSMENT PASSED BY THE ASSESSING OFFICER IS HEREB Y QUASHED. HENCE THE APPEAL ON THESE GROUNDS IS ALLOWED. 5. THE LD. CIT(A) ALSO DELETED THE ADDITION MADE BY TH E ASSESSING OFFICER ON MERITS. AGGRIEVED BY THIS THE REVENUE I S IN APPEAL BEFORE US. 6. THE LD. DEPARTMENTAL REPRESENTATIVE FIRST SOUGHT TO SEEK THE ADJOURNMENT. HOWEVER ON PERUSAL OF THE CASE RECORD S IT WAS FOUND THAT FOR SIMILAR REASON FEW ADJOURNMENTS HAD BEEN TAKEN IN THE PAST HENCE SUCH REQUEST WAS NOT ACCEDED TO. APART FROM THIS I T WAS ALSO CONTENDED BY THE LEARNED COUNSEL THAT THE ISSUES RAISED IN T HIS APPEAL WERE ALSO COVERED BY THE DECISION OF THE TRIBUNAL IN I. T. (S S) A.NO. 207/IND/2007 208 & 209/IND/2007 DATED 20.02.2009 IN THE CASE OF CONNECTED ASSESSEES. HENCE FACTUAL MATRIX OF THESE CASES BEING THE SAME AND THEREFORE THERE WAS NO REQUIREMENT OF ANY CASE RECORDS. THE LEARNED COUNSEL FURTHER REITERATED THE SUBMISSIONS MADE BEFORE THE LD. CIT( A) AND ALSO PLACED PAGE 5 OF 7 - I.T(SS).A.NOS. 184/IND/2007 & 185/IN D/2007 SMT.BINU AGARWAL AND SMT. SADHNA DEVI AGRAWAL RELIANCE THEREON. HE ALSO POINTED OUT THAT THE DEPA RTMENT HAD NOT CHALLENGED THE ASPECT OF NON-SERVICE OF THE NOTICE U/S 143(2) WITHIN THE STIPULATED TIME HENCE THIS APPEAL WAS TO BE DISMI SSED CONSIDERING THIS ASPECT. 7. WE HAVE CONSIDERED THE SUBMISSIONS MADE BY BOTH THE SIDES MATERIAL ON RECORD AND THE ORDERS OF THE AUTHORITIE S BELOW. 8. WE FIND THAT FOR THE REASON OF NON-SERVICING OF NOT ICE U/S 143(2) ALONE THESE APPEALS ARE LIABLE TO BE DISMISSED. THE COORDINATE BENCH OF THE TRIBUNAL IN THIS REGARD HAS ALSO HELD SO IN T HE CASE OF CONNECTED ASSESSEES. THE RELEVANT FINDINGS OF THE TRIBUNAL IN THE SAID ORDER ARE REPRODUCED AS UNDER :- 4. ON CONSIDERATION OF RIVAL SUBMISSIONS WE ARE O F THE VIEW THAT THE APPEAL OF THE REVENUE EVEN IF DECIDED ON T HE ABOVE FOUR GROUNDS OF APPEAL WOULD NOT YIELD ANY RESULT. ADMIT TEDLY THE ASSESSEE HAS TAKEN SPECIFIC GROUNDS OF APPEAL BEFOR E LD. CIT(A) THAT THE NOTICE U/S 143(2) HAVE NOT BEEN SERVED UPO N THE ASSESSEE WITHIN 12 MONTHS FROM THE DATE OF THE FILING OF THE RETURN. THE CIT(A) DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE AND QUASHED THE ASSESSMENT ORDER AND ALLOWED THE APPEAL OF THE ASSESSEE ON THIS ISSUE. THE REVENUE HAS NOT TAKEN ANY GROUND OF APPEAL BEFORE THE TRIBUNAL CHALLENGING THE AFORESAID FINDI NGS OF THE LD. PAGE 6 OF 7 - I.T(SS).A.NOS. 184/IND/2007 & 185/IN D/2007 SMT.BINU AGARWAL AND SMT. SADHNA DEVI AGRAWAL CIT(A). IT IS THEREFORE UNDISPUTED FACT THAT THE FINDINGS OF THE LD. CIT(A) IN QUASHING THE ASSESSMENT PROCEEDINGS O N THE ISSUE OF NON-SERVICE OF NOTICE U/S 143(2) WITHIN THE PERI OD OF LIMITATION REMAINED UNCHALLENGED. EVEN THE LD. CIT BHOPAL WH ILE SANCTIONING THE APPEAL HAS NOT TAKEN CARE OF SUCH F ACT AND NO GROUND OF APPEAL CHALLENGING THE AFORESAID FINDING OF THE LD. CIT(A) HAVE BEEN APPROVED. THE CONTENTION OF THE LD . DEPARTMENTAL REPRESENTATIVE THAT THE ISSUE IS DECID ED IN FAVOUR OF THE REVENUE BY THE SPECIAL BENCH WOULD NOT BE R ELEVANT IN VIEW OF THE JUDGMENT OF HON'BLE GAUHATI HIGH COURT IN THE CASE OF SMT. BANDANA GOGOI VS. CIT 289 ITR 28 IN WHIC H IT WAS HELD THAT REQUIREMENT OF NOTICE U/S 143(2) IN THE B LOCK ASSESSMENT IS MANDATORY. SINCE THE LD. CIT(A) QUASHED THE REAS SESSMENT PROCEEDINGS ON THE ABOVE ISSUE AND SUCH FINDINGS O F THE LD. CIT(A) ARE NOT CHALLENGED BEFORE THE TRIBUNAL THER EFORE IT STANDS CONFIRMED THAT THE ASSESSMENT ORDER REMAINED QUASHED AND IS NO MORE ASSESSMENT ORDER UNDER THE EYES OF T HE LAW AND ALL ADDITIONS STAND DELETED. THEREFORE THERE IS NO PUR POSE LEFT FOR CONSIDERING THE ABOVE GROUNDS OF APPEAL ON MERIT IN THE DEPARTMENTAL APPEAL. THE DEPARTMENTAL APPEAL IS HAV ING ONLY ACADEMIC INTEREST AND HAVE BECOME INFRUCTUOUS BECAU SE NO PURPOSE WOULD SERVE TO DECIDE THE SAME ON MERIT DUE TO THE ABOVE PAGE 7 OF 7 - I.T(SS).A.NOS. 184/IND/2007 & 185/IN D/2007 SMT.BINU AGARWAL AND SMT. SADHNA DEVI AGRAWAL FACTS. THE DEPARTMENTAL APPEAL HAS BECOME INFRUCTUO US AND STANDS DISPOSED OF. THE GROUNDS OF APPEAL ARE ADMIT TEDLY SAME IN THE REMAINING APPEALS THEREFORE BY FOLLOWING THE ABOVE FINDINGS THE OTHER DEPARTMENTAL APPEALS HAVE BECOME INFRUCTU OUS AND ARE ALSO DISPOSED OF ACCORDINGLY. 9. ACCORDINGLY WE DISMISS THESE APPEALS OF THE REVENU E. 10. BEFORE PARTING WE MAY ALSO ADD THAT EVEN OTHER REQ UIREMENT OF RECORDING OF SATISFACTION IN THE MANNER AS REQUIRED IN LAW HAS NOT BEEN COMPLIED WITH HENCE FOR THIS REASON ALSO BOTH TH ESE ASSESSMENT ORDERS ARE LIABLE TO BE QUASHED. 11. IN THE RESULT BOTH THE APPEALS FILED BY THE REVENU E ARE DISMISSED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 5 TH FEBRUARY 2010. SD/- SD/- (JOGINDER SINGH) (V. K. GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 5 TH FEBRUARY 2010. CPU* 281