The ACIT, 1(1), v. Sagam Sahakari Girh Nirman Samiti,

ITSSA 40/IND/2009 | 1999-2000
Pronouncement Date: 24-02-2010 | Result: Dismissed

Appeal Details

RSA Number 4022716 RSA 2009
Assessee PAN AACAS6162L
Bench Indore
Appeal Number ITSSA 40/IND/2009
Duration Of Justice 1 year(s) 11 day(s)
Appellant The ACIT, 1(1),
Respondent Sagam Sahakari Girh Nirman Samiti,
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 24-02-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 24-02-2010
Date Of Final Hearing 27-01-2010
Next Hearing Date 27-01-2010
Assessment Year 1999-2000
Appeal Filed On 13-02-2009
Judgment Text
1 IN THE INCOME TA X APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI JOGINDER SINGH AND SHRI V.K. GUPTA AM IT(SS)A NOS.40 TO 44/IND/2009 ASSESSMENT YEARS: 1999-00 TO 2003-04 ASSISTANT COMMISSIONER OF INCOME TAX 1(1) BHOPAL .APPELLANT VS SANGAM SAHAKARI GRIH NIRMAN SAMITI C-2/1 SIMMI APARTMENT PADMANABH NAGAR BHOPAL (PAN AACAS 6162 L) .RESPONDENT APPELLANT BY : SMT. APARNA KARAN SR. DR RESPONDENT BY : S/SH. M.K. SHARMA & KISHORE CHAWLA CAS O R D E R PER JOGINDER SINGH JM THESE APPEALS ARE BY THE REVENUE AGAINST THE COMMON AND CONSOLIDATED ORDER OF THE LEARNED CIT(A) DATED 26. 11.2008 FOR ASSESSMENT YEARS 1999-00 TO 2003-04 ON THE GROUND T HAT THE LD. FIRST APPELLATE AUTHORITY ON THE FACTS AND IN THE CIRCUMS TANCES OF THE CASE ERRED IN DELETING THE ADDITION OF RS.65 88 975 EACH ON ACCOUNT OF UNEXPLAINED CREDIT. THE CRUX OF ARGUMENT ON BEHALF OF THE REVENUE IS IN SUPPORT TO THE ASSESSMENT ORDER WHEREAS THE LD. COU NSEL FOR THE 2 ASSESSEE DEFENDED THE IMPUGNED ORDER. 2. DURING THE HEARING OF THE APPEAL WE HAVE HEARD LD. COUNSEL FROM BOTH SIDES CONSIDERED THE ARGUMENTS ADVANCED BY TH EM AND PERUSED THE MATERIAL AVAILABLE ON THE FILE. SINCE THESE APP EALS WERE HEARD AND ARGUED TOGETHER BEING COMMON ISSUE INVOLVED AND A LSO AGAINST A CONSOLIDATED ORDER OF THE LD. FIRST APPELLATE AUTHO RITY CONSEQUENTLY THESE CAN BE DISPOSED OF BY THIS COMMON AND CONSOLIDATED ORDER. THE ASSESSEE HAS CHALLENGED THE ASSUMPTION OF JURISDICT ION BY THE ASSESSING OFFICER ON ISSUANCE OF NOTICE AND ASSESSM ENT PROCEEDINGS TAKEN U/S 153C. BRIEF FACTS ARE THAT SEARCH WAS CON DUCTED ON 2.11.2004 AND 3.11.2004 AT THE PREMISES OF PARTY A (RAJ BUILD ERS & RAJ DEVELOPERS RISHI CONSTRUCTION AND ASNANI BUILDERS & DEVELOPERS). CERTAIN LAND DOCUMENTS BELONGING TO CHIRANJILAL KAT ARIA (PARTY B) WERE ALLEGEDLY FOUND FROM THE POSSESSION OF PARTY A. THE ONLY RELEVANCE OF THESE DOCUMENTS WITH THE ASSESSEE WAS THAT THE ASSE SSEE SOLD THE IMPUGNED LAND TO PARTY B. VIDE LETTERS DATED 27.11. 2006 AND 22.12.2006 ALL THE EVIDENCE TO THE SATISFACTION OF THE ASSESSING OFFICER TO THE EFFECT THAT THE CONCERNED LAND WAS SOLD TO P ARTY B IN 1986 AND ALSO THAT THE ACTIVITIES OF THE SOCIETY WERE CLOSED DOWN SINCE 1999 WERE AVAILABLE WITH THE ASSESSING OFFICER. THE PRESIDENT OF THE SOCIETY DUE TO ILL HEALTH COULD NOT SUBMIT THE BOOKS OF ACCOUNTS. VIRTUALLY THERE WAS NO TRANSACTION OR INCOME ACTIVITY. EVEN IN THE ASSESSM ENT ORDER (PARA 3) AT 3 PAGE 4 HAS CONFIRMED THAT HE HAD COLLECTED INFORMAT ION FROM THE REGISTRAR OF FIRMS AND SOCIETY BHOPAL THAT THE SOC IETY HAS NOT CARRIED OUT ANY ACTIVITY IN PREVIOUS YEAR. IN VIEW OF THES E FACTS WE ARE REPRODUCING HEREUNDER SEC. 153C OF THE ACT: ASSESSMENT OF INCOME OF ANY OTHER PERSON. 153C. 96 [(1)] NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139 SECTION 147 SECTION 148 SECTION 149 SECTION 151 AND SECTION 153 WHERE THE ASSESSING OFFICER IS SATISFIED THAT ANY MONEY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCOUNT OR DOCUMENTS SEIZED OR REQUISITION ED BELONGS OR BELONG TO A PERSON OTHER THAN THE PERSON REFERRED T O IN SECTION 153A THEN THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON AND THAT ASSESSING OFFICER SHALL PROCEED AGAINST EACH SUCH OTHER PERSO N AND ISSUE SUCH OTHER PERSON NOTICE AND ASSESS OR REASSESS INC OME OF SUCH OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A :] 96A [ PROVIDED THAT IN CASE OF SUCH OTHER PERSON THE REFERENCE T O THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR MAKING OF REQUISITION UNDER SECTION 132A IN THE SECOND PROVISO TO 97 [SUB- SECTION (1) OF] SECTION 153A SHALL BE CONSTRUED AS REFERENCE TO THE DATE OF RECEIVING THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFFICER HA VING JURISDICTION OVER SUCH OTHER PERSON.] 98 [(2) WHERE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED AS REFERRED TO IN SUB-SECTION (1) HAS OR HAVE BEEN RECEIVED BY THE ASSESSING OFFICER HAVING JURISDICTI ON OVER SUCH OTHER PERSON AFTER THE DUE DATE FOR FURNISHING THE RETURN OF INCOME FOR THE ASSESSMENT YEAR RELEVANT TO THE PREV IOUS YEAR IN WHICH SEARCH IS CONDUCTED UNDER SECTION 132 OR REQUISITION IS MADE UNDER SECTION 132A AND IN RESPECT OF SUCH ASSESSMENT YEAR ( A ) NO RETURN OF INCOME HAS BEEN FURNISHED BY SUCH OT HER PERSON AND NO NOTICE UNDER SUB-SECTION (1) OF SECTION 142 HAS BEEN ISSUED TO HIM OR ( B ) A RETURN OF INCOME HAS BEEN FURNISHED BY SUCH OTH ER PERSON BUT NO NOTICE UNDER SUB-SECTION (2) OF SECTION 143 HAS BEEN SERVED AND LIMITATION OF SERVING THE NOTICE UN DER SUB- SECTION (2) OF SECTION 143 HAS EXPIRED OR ( C ) ASSESSMENT OR REASSESSMENT IF ANY HAS BEEN MADE BEFORE THE DATE OF RECEIVING THE BOOKS OF ACCOUNT O R DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON SUCH ASSESSING OFFICER SHALL 4 ISSUE THE NOTICE AND ASSESS OR REASSESS TOTAL INCOM E OF SUCH OTHER PERSON OF SUCH ASSESSMENT YEAR IN THE MANNER PROVID ED IN SECTION 153A .] 3. IF THE AFORESAID SEC. 153C IS ANALYSED IT CLEAR LY SPEAKS ABOUT THAT WHERE THE ASSESSING OFFICER IS SATISFIED ABOUT THE VALUABLE ARTICLES OR BOOKS OF ACCOUNTS OR DOCUMENTS SEIZED OR REQUISITI ONED BELONGS TO A PERSON OTHER THAN THE PERSON REFERRED TO IN SEC. 15 3A THEN THESE SHALL BE HANDED OVER TO THE ASSESSING OFFICER WHO SHALL PROC EED AGAINST EACH OTHER SUCH PERSON IN ACCORDANCE WITH THE PROVISIONS OF SEC. 153A. HOWEVER THE DOCUMENTS BELONGING TO PARTY B WHICH WERE FOUND IN THE POSSESSION OF PARTY A WHERE SEARCH WAS CONDUCTED T HE DEPARTMENT SHOULD HAVE INITIATED PROCEEDINGS AGAINST PARTY B WHICH WAS NEVER INITIATED. THE PROVISIONS OF SEC. 153C RESTRICT THE JURISDICTION OF THE ASSESSING OFFICER. IN THE INSTANT CASE DOCUMENT BS -5 WAS FOUND AND SEIZED FROM THE RESIDENCE OF SHRI J. BHANDARI E-1/ 47 ARERA COLONY SHOWING THAT THE APPELLANT SOCIETY SOLD A PLOT OF L AND TO SHRI C.L. KATARIA. ONCE THE ASSESSING OFFICER WAS SATISFIED THAT THE T RANSACTION REFLECTED IN THE SEIZED DOCUMENTS DID NOT HAVE A BEARING ON ANY OF THE ASSESSMENT OF THE APPELLANT SOCIETY THE MATTER SHOULD HAVE EN DED THERE. ON THE CONTRARY HE ASSUMED JURISDICTION OVER TRANSACTION THAT NEVER FIGURED IN THE SEIZED DOCUMENTS AND AFTER INVOKING PROVISIONS OF SEC. 153C HE PROCEEDED TO INVESTIGATE TRANSACTION BEYOND HIS LIM ITED JURISDICTION AS 5 PROVIDED UNDER THE ACT. THIS FACT ALONE WOULD PUT T HE MATTER BEYOND THE JURISDICTION OF THE ASSESSING OFFICER ON LIMITATION . TO BURDEN THE SOCIETY WITH TAX ON SUBSTANTIVE BASIS FOR THE ASSESSMENT YE AR 2003-04 AND PROTECTIVE BASIS FOR THE ASSESSMENT YEAR UNDER APPE AL IN OUR VIEW IS QUITE UNJUSTIFIED ESPECIALLY WHEN THE ASSESSEE SOCI ETY HAS PROVED BEYOND DOUBT THAT NO INCOME HAS ARISEN OR ACCRUED T O IT FOR THE PAST OF ONE DECADE. EVEN OTHERWISE THOUGH NO STRAIGHT JACK ET FORMULAE CAN BE EVOLVED STILL WHAT CAN BE TAXED CAN ONLY THE REAL INCOME OF THE ASSESSEE AND NOT SOME HYPOTHETICAL OR ILLUSORY INCO ME. OUR VIEW FINDS SUPPORT FROM THE DECISIONS FROM THE HONBLE APEX CO URT IN UCO BANK VS. CIT (237 ITR 889) (SC) AND CIT VS. BALRAMPUR CO MMERCIAL ENTERPRISES (262 ITR 439) (CAL). IN VIEW OF THESE F ACTS AND JUDICIAL PRONOUNCEMENTS WE HAVE NOT FOUND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A) IN DELETING THE IMPUGNED ADDITIONS. IN THE RESULT THESE APPEALS OF THE REVENUE ARE DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 24.2.2010. SD SD (V.K. GUPTA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 24.2.2010 {VYAS} COPY TO APPELLANT RESPONDENT CIT CIT(A) DR GU ARD FILE