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Income Tax Appellate Tribunal, DELHI BENCH: ‘A’ NEW DELHI
Before: SHRI SATBEER SINGH GODARA & SHRI AVDHESH KUMAR MISHRA
C.O. No.125/Del/2023 Assessment Year: 2008-09 Vs. M/s. DCIT, Brindavan Enterprises Central Circle-14, Pvt. Ltd., New Delhi 318, 2nd Floor, DLF South Court Mall, Saket, New Delhi PAN: AAACB0067D (Appellant) (Respondent/Cross Objector) Assessee by Sh. Raj Kumar Gupta, CA Sh. Suraj Gupta, Adv. Department by Sh. Sanjeev Kaushal, CIT(DR) Date of hearing 16.01.2025 Date of pronouncement 16.01.2025 ORDER
PER SATBEER SINGH GODARA, JM
This Revenue’s appeal and assessee’s cross objection therein with C.O. No. 125/Del/2023 for assessment year 2008-09, arises against the Commissioner of Income Tax (Appeals)-28 [in short, the “CIT(A)”], New Delhi’s order dated 23.03.2023 in case no. 26/10420/2019-20 involving proceedings under section 153A r.w.s. 143(3) of the Income-tax Act, 1961 (hereinafter referred to as ‘the Act’).
Heard both the parties at length. Case files perused.
Learned counsel representing assessee submits at the outset that it has preferred an application under Rule 27 of the Income Tax (Appellate Tribunal) Rules, 1963 (in short “the ITAT Rules”) that the assessment year 2008-09 herein could not have been included for the purposes of framing assessment under section 153A of the Act; in furtherance to the search carried out on 28.11.2017, in M/s. Brindavan Enterprises group of cases as it falls so far beyond the specified period of six assessment years as well as for the additional block of “relevant assessment year or years”, under section 153A(1)(b) of the Act; as the case may be.
The Revenue, on the other hand, has vehemently objected to the admission of the assessee’s instant Rule 27 application. Learned CIT(DR) states that the same is a gross misuse of the process of law as the assessee is indeed barred from raising such a plea at this belated stage. 5. We have given our thoughtful consideration to the foregoing vehement rival submissions against and in support of the assessee’s Rule 27 application dated 04.01.2024 hereinabove. Learned CIT(DR) could hardly dispute the clinching fact that the 2 | P a g e assessee had raised the very ground no. 2 in the lower appellate proceedings as well, which stands declined in paras 6 to 6.3 of the CIT(A)’s order under challenge 6. Faced with this situation, we deem it appropriate at this stage to refer Rule 27 of the ITAT Rules, reading as “the respondent, thought may not have appealed, may support the order appealed against or any of the grounds decided against him.”. We Accordingly admit the assessee’s instant Rule 27 application since duly satisfies relevant condition of the CIT(A) having decided twin legal issue in the department’s favour.
Next comes the basic relevant facts regarding the legal issue arising herein for our apt adjudication as per the assessee’s foregoing Rule 27 application. Suffice to say, we are in assessment years 2008-09 as against the search having taken place in assessee’s case on 28.11.2017. Section 153A(1)(b) envisages that the Assessing Officer concerned “shall assess or re-assess” the total income of six years immediately preceding the assessment year relevant to the previous year in which such search conducted. Meaning thereby, that when we count the prescribed six assessment years as well as those covered under the statutory
3 | P a g e amendment “for the relevant assessment year or years” having maximum time span of ten assessment years, as immediately preceding assessment years relevant to the previous year of the search, such assessment year comes to AY 2018-19, and, therefore, the impugned assessment year 2008-09 falls out of the said block. We accordingly adopt stricter interpretation in light of CIT vs. Dilip Kumar And Co. & Ors. [2018] 9 SCC 1 (SC) (FB) to accept the assessee’s legal ground raised in the instant Rule 27 application to quash the assessment itself forming subject matter of adjudication.
8. We further quote to the Rule 27 hereinabove as well as B.R. Bamasi vs Commissioner of Income-Tax, Bombay (1972) 83 ITR 223 (Bom) to conclude that once the law is well settled that the maximum relief which could be granted in such an application is that of upholding the corresponding lower appellate order under challenge only, the learned CIT(A)’s findings on all other issues herein are upheld in very terms. The Revenue’s instant main appeal C.O. No.125/Del/2023 fail accordingly.