PR. COMMISSIONER OF INCOME TAX (CENTRAL)-2 vs. NAGAR DAIRY PVT. LTD.

PDF · subscribers
ITA/419/2023HC DelhiDLHC01029411202302 August 2023Bench: HON'BLE MR. JUSTICE RAJIV SHAKDHER,HON'BLE MR. JUSTICE GIRISH KATHPALIA4 pages
AI SummaryDismissed

What did the High Court hold?

The High Court held that no substantial question of law arose for its consideration and therefore, the appeal was closed. The court noted that the Tribunal had returned a finding of fact that no incriminating material was found concerning AY 2009-10. The seized documents, according to the Tribunal, pertained to AY 2010-11 and 2011-12, and not the assessment years under consideration (2007-08 to 2009-10). The Tribunal had relied on the ratio laid down in cases such as ACIT Vs. Anush Finlease & Construction (P.) Ltd., PCIT Vs. Index Securities (P.) Ltd., and CIT Vs. Kabul Chawla. The High Court observed that the issue was covered by the judgment of a coordinate bench in CIT v. Kabul Chawla, which was affirmed by the Supreme Court in Principal Commissioner of Income Tax v. Abhisar Buildwell. Given that no incriminating material was found for the AY in issue, the High Court found no reason to interfere with the Tribunal's impugned order.

What were the facts?

The appeal was filed by the Principal Commissioner of Income Tax (Central)-2 (the revenue) against an order dated 23.11.2022 passed by the Income Tax Appellate Tribunal (Tribunal). The assessment year in question is 2009-10. The revenue sought to challenge the Tribunal's decision which had held that no incriminating material was found pertaining to AY 2009-10, apart from AY 2007-08 and 2008-09. The Tribunal's finding was based on seized documents which, according to the Tribunal, pertained to AY 2010-11 and 2011-12, not the assessment years under consideration. The revenue's appeal was filed with a delay of 14 days, which was condoned by the High Court.

What were the issues?

1. Whether the Tribunal erred in holding that no incriminating material was found for Assessment Year (AY) 2009-10, thereby allowing the assessee's appeal against additions made by the Assessing Officer, turning on Section 153C of the Income Tax Act, 1961. Assessee's contentions: Not recorded in the judgment. Revenue's contentions: The issue raised in the appeal stands covered by a previous judgment of the High Court dated 01.06.2023, passed in other appeals arising from the same impugned order of the Tribunal. The revenue relied on the fact that the assessment for AY 2009-10 was completed. The revenue also implicitly supported the additions made by the Assessing Officer.

Which sections of the Income-tax Act were involved?

Section 153C

AI-generated summary — verify with the full judgment below

ITA 419/2023

Page 1 of 4 $~348 * IN THE HIGH COURT OF DELHI AT NEW DELHI %

Date of Decision:02.08.2023 + ITA 419/2023

PR. COMMISSIONER OF INCOME TAX (CENTRAL)-2 ..... Appellant Through: Mr Sanjay Kumar, Senior Standing Counsel with Ms Easha Kadian and Ms Hemlata Rawat, Advocates.

Versus

NAGAR DAIRY PVT. LTD.

..... Respondent

Through: None.

CORAM:

HON'BLE MR. JUSTICE RAJIV SHAKDHER

HON'BLE MR. JUSTICE GIRISH KATHPALIA [Physical Hearing/Hybrid Hearing (as per request)] RAJIV SHAKDHER, J. (ORAL): CM No.39036/2023 1. Allowed, subject to just exceptions. CM No. 39035/2023 [Application filed on behalf of the appellant/revenue seeking condonation of delay of 14 days in filing the appeal] 2. This is an application moved on behalf of the appellant/revenue, seeking condonation of delay in filing the appeal. 2.1 According to the appellant/revenue, there is a delay of 14 days in filing the appeal. 3. Having regard to the period of delay, we are inclined to allow the Digitally Signed By:NEELAM SHARMA Signing Date:13.08.2023 09:20:34 Signature Not Verified

ITA 419/2023

Page 2 of 4 prayer made in the application. 3.1 It is ordered accordingly. 4. The application is disposed of, in the aforesaid terms. ITA 419/2023 5. This appeal concerns Assessment Year (AY) 2009-10. 6. Via this appeal, the appellant/revenue seeks to assail the order dated 23.11.2022 passed by the Income Tax Appellate Tribunal [in short, “Tribunal). 7. Mr Sanjay Kumar, learned senior standing counsel, who appears on behalf of appellant/revenue, says that issue raised in this appeal stands covered by the judgment dated 01.06.2023, passed in appeals preferred by the appellant/revenue, arising from the aforementioned impugned order passed by the Tribunal. 8. These appeals are ITA No. 322/2023, ITA No. 323/2023 & ITA No. 327/2023. 9. We notice that it is not in dispute that the assessment in the above- captioned AY also stood completed. 10. The Tribunal has returned the finding of fact that no incriminating material was found, insofar as the AY in issue, i.e., AY 2009-10, was concerned, apart from AY 007-08 and 2008-09. 11. This is evident from the following extract embedded in the impugned order: “20. As per the seized paper 34 of Annexure A-2 and page 37 of Annexure A-3 which are containing vouchers showing payment in cash for purchase of milk for AY 2010-11 & 2011-12 pertaining to the assessee. Admittedly the alleged documents were seized during the search are not pertaining to the assessment year 2007-08 to 2009-10 Digitally Signed By:NEELAM SHARMA Signing Date:13.08.2023 09:20:34 Signature Not Verified

ITA 419/2023

Page 3 of 4 and the same is belongs to Assessment years 2010-11 & 2011-12. But the Ld. A.O. has made additions even the years under consideration i.e. 2007-08 to 2009-10. The initiation of the proceedings u/s 153C of the Act by the Assessing Officer should be related to assessment year sought to be reopened. As discussed above the additions made for the Assessment Year 2007-08 to 2009-10 is not related to the document found during the search. xxxx

xxxx

xxxx 23. In the present case, the alleged documents were seized during the search are not pertaining to the assessment year 2007-08 to 2009-10 and the same is belongs to Assessment years 2010-11 & 2011-12, therefore, the addition made by the A.O. for the years under consideration i.e. 2007-08 to 2009-10 cannot be sustained by applying the ratio laid down in the case of ACIT' Vs. Anush Finlease & Construction (P.) Ltd. [2019] 104 taxmann.com 295(Delhi-Trib.), PCIT Vs. Index Securities (P.) Ltd. [2017] 86 taxmann.com 84, CIT Vs. Kabul Chawla (380 ITR 573). Thus, it is clear that the satisfaction though recorded was not based on the material relevant to the year in question and also the additions made were not based on the incriminating material found and seized during the course of search u/s 132.” [Emphasis is ours]

12.

As correctly observed by the Tribunal, the issue is covered by the judgment of the coordinate bench of this court in CIT v. Kabul Chawla, (380 ITR 573). 13. The decision in Kabul Chawla’s case has been affirmed by the Supreme Court in Principal Commissioner of Income Tax v. Abhisar Buildwell, 2023 SCC Online SC 481. 14. Given the position that no incriminating material was found qua the AYs in issue, we find no reason to interfere with the impugned judgment. 15. Therefore, according to us, no substantial question of law arises for our consideration. 16. The appeal is accordingly closed. Digitally Signed By:NEELAM SHARMA Signing Date:13.08.2023 09:20:34 Signature Not Verified

ITA 419/2023

Page 4 of 4 17. Parties will act based on the digitally signed copy of the order.

RAJIV SHAKDHER JUDGE

GIRISH KATHPALIA JUDGE AUGUST 2, 2023/RY

Click here to check corrigendum, if any

Digitally Signed By:NEELAM SHARMA Signing Date:13.08.2023 09:20:34 Signature Not Verified

More judgments on Section 153C

All 9,619 judgments and leading authorities on Section 153C →

Recent GST High Court judgments

Search GST case law →