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Income Tax Appellate Tribunal, “I” BENCH, MUMBAI
Before: SHRI RAJENDRA, AM & SHRI C.N. PRASAD, JM
आदेश / O R D E R
PER C.N. PRASAD, JM:
The appeals in & 640/Mum/2015 are cross-appeals filed by the Revenue and assessee respectively against the order of CIT(A)-38, Mumbai dated 8.9.2014 for the Assessment Year 2000-01 arising out of assessment order dated 29.10.2013 passed u/s 143(3) r.w.s 254 of the Income Tax Act, 1961 (in short ‘the Act’) and CIT(A)- 49 for Assessment Year 2001-02 arising out of assessment order dated 7.8.2015 also passed u/s 143(3) r.w.s 254 of the Act.
First we take up the appeals of assessee for Assessment Years 2000-01 & 2001-02 in & 5126/Mum/2015. The assessee has raised preliminary objections in his appeal as under :-
“1. On the facts and circumstance of the case the Hon. CIT (A) was not justified in not accepting the submission of the appellant that the assessing officer had failed to comply with directions of superior authority of not following Mumbai ITAT special bench judgment and hence the order of the assessing officer needed to be quashed as it amounted to contempt of court and against the hierarchical system of jurisprudence.
2. On facts and circumstance of the case the Hon. CIT (A) was not justified in distinguishing the Bombay High court decision of Murli Agro Products by stating that the said decision was on different facts. The Ld. CIT (A) erred in further stating that the additions in the appellant's case were made on the basis of enquiry conducted during the course of 153A proceedings. The appellant submits that Ld. CIT (A) ought to have followed jurisdictional High court judgment rather than relying on Karnataka High court in the case of Canara Housing Development Company.
3 Shri Purshottam G. Budhwani 640 & 5126/Mum/2015
3. On facts & circumstances of the case the Hon. CIT(A) was not justified in not accepting the submission of the appellant with regard to the change of legal matrix relating to the provisions of section 153A of the Act as it is now settled in view various judicial pronouncements that in case of completed assessments the assessment u/s 153A has to be made on the basis of incrementing material only.”
The learned counsel for the assessee at the outset submits that when the search took place on 20.10.2005 in the residential premises of assessee, the time limit for completion of assessment for Assessment Years 2000-01 & 2001-02 had lapsed. He submits that there were no pending proceedings for Assessment Years 2000-01 & 2001-02. The learned counsel further submits that the additions made in the assessments completed for Assessment Years 2000-01 & 2001-02 pursuant to search proceedings are not based on the materials found in the course of search and they are all based on the information gathered during the course of assessment proceedings. Therefore, he submits that since there were no pending proceedings for the Assessment Years 2000-01 & 2001-02 and the assessments are not abated and the additions were not based on search materials, the orders passed u/s 143(3) r.w.s. 153A of the Act are bad in law. For this proposition, he placed reliance on the decisions of Hon'ble Bombay High Court in the case of All Cargo Global Logistics Ltd., 374 ITR 645 (Bom.) and Shri Gurinder Singh Bawa, IT Appeal No. 1839 of 2013 dated 5.10.2015 reported in 386 ITR 483.
The ld. DR vehemently supported the orders of the authorities below.
4 Shri Purshottam G. Budhwani 640 & 5126/Mum/2015
We have heard the rival submissions, perused the orders of authorities below and the case laws relied on. It is the submission of learned counsel that both the assessments for Assessment Years 2000- 01 and 2001-02 were not abated and there are no pending proceedings as on the date of search u/s 132 of the Act. He also further submits that none of the additions made in these assessments consequent to the search were based on the materials unearthed during the search proceedings. He submits that all these additions were made based on the material already on record or gathered during the course of assessment proceedings without there being any incriminating materials. The ld. DR could not produce any material to suggest that the assessments for Assessment Years 2000-01 and 2001-02 were abated and the additions were made based on the seized materials. No incriminating material is placed before us suggesting that the additions were made based on these materials. In any case, since there are no pending proceedings for these assessment years and the assessments were not abated, no additions can be made while completing the assessment u/s 153 of the Act without there being any incriminating materials in view of the decision of the jurisdictional High Court in the case of Shri Gurinder Singh Bawa, 386 ITR 483. We find that an identical issue has been considered and decided by the coordinate Bench of Tribunal in the case of Narpat Mehta vs. ACIT, & 2154/Mum/2015 dated 21.10.2016 wherein the coordinate Bench of Tribunal, considering the decision of the Hon'ble Supreme Court in the case of Calcutta Knitwears, 362 ITR 673 (SC) and the decision of the jurisdictional High Court in the case of Continental Warehousing
5 Shri Purshottam G. Budhwani 640 & 5126/Mum/2015 Corporation, 374 ITR 645 and the decision in the case of Shri Gurinder Singh Bawa, 386 ITR 483 (supra) held as under:-
“4. We have heard the rival submissions and perused the orders of the authorities below and the case-laws relied on. The short point for consideration in all these appeals before going into the merits of the disallowance is whether there is any incriminating material found in the course of search and whether the assessments have been abated or not. On a specific query by the Bench to the Ld. Departmental Representative to show the kind of seized material found in the course of search, based on which the impugned addition in the appeal was made and to show whether these assessments have been abated and there is no pending proceedings, Departmental Representative could not bring any incriminating material on record to suggest that the additions/disallowances were made in the impugned assessments were based on incriminating material. The Revenue also did not dispute before us that all these assessments were non-abated assessments. The decision relied on by the Ld. Departmental Representative in the case of Calcutta Knitwears (supra) has no application to the facts of these cases. The question before the Hon'ble Supreme Court was whether the Assessing Officer has to record satisfaction that undisclosed income is involved before transferring the files to the concerned Assessing Officer and the time limit regarding such satisfaction was the issue, but in the cases on hand, the issue was whether any incriminating material was found and whether any disallowance was made based on which incriminating material and whether the assessments have abated by virtue of such incriminating materials or not is to be decided. The Revenue could not prove with evidences that the disallowances were made based on incriminating material seized in the course of search and the assessments have abated by virtue of such seized materials.
5. We find that an identical issue has been dealt with in assessee's own case i.e. Narpat Mehta for the Assessment Years 2005-06 & 2008-09 and set aside the additions/ disallowances made in those two years. Recently, the Bombay High Court in the case of CIT Vs.
6 Shri Purshottam G. Budhwani 640 & 5126/Mum/2015
Gurinder Singh Bawa (supra) considered the question as to whether the addition can be made in non-abated assessments without there being any seized incriminating material and by applying its decision in the case of CIT Vs. Continental Warehousing Corporation reported in 374 ITR 645 (Bom.) held that once an assessment was not pending but had attained finality for a particular year, it could not be subject to proceedings under section 153A of the Act, if no incriminating materials were found in the course of the search. While dealing with the issue, the Jurisdictional High Court also considered the Special Bench decision of the Tribunal in the case of All Cargo Global Logistics Ltd. Vs. DCIT [2012] 18 ITR (Trib.) 106 (Mum), which was affirmed by the Jurisdictional High Court in CIT vs. All Cargo Global Logistics [374 ITR 645]. The Hon'ble Bombay High Court in Gurinder Singh Bawas (supra) held as under:-
“3) For the Assessment Year 2005 -06, the respondent - assessee had filed his return of income declaring an income of Rs. 9.61 lakhs. The return of income as filed by the respondent - assessee was processed under Sec. 143(1) of the Act. Admittedly, no notice under Sec. 143(2) of the Act has been issued. Thereafter on 5 January 2007, a search was conducted on the respondent - assessee under Sec. 132 of the Act. Consequent thereto, proceedings under Sec. 153A of the Act were initiated. During the assessment proceedings for A. Y. 2005 -06, the Assessing Officer added an amount of Rs. 93.72 lakhs (declared as gifts) as being covered by Sec. 68 of the Act and an amount of Rs. 43.67 lakhs (accumulated profits of the lender) out of Rs. 1.5 crores received as loan from one K.P. Developers Pvt. Ltd. as deemed dividend under Sec. 2(22)(e) of the Act. Undisputedly, respondent -assessee was a shareholder in M/s K.P. Developers (P) Ltd. The aforesaid additions are reflected in an assessment order dated 31 December 2008 passed under Sec. 143(3) r/w 153A of the Act determining the respondent -assessee's total income at Rs.1.47 crores.
In appeal, the Commissioner of Income-tax (Appeals) held that the addition of an amount of Rs. 43.67 lakhs as deemed dividend
7 Shri Purshottam G. Budhwani 640 & 5126/Mum/2015 has to be deleted. This on the ground that there were no accumulated profits available with M/s. K. P. Developers (P.) Ltd. to distribute amongst it's shareholders. However, so for as the addition in respect of the unexplained gifts aggregating to Rs. 93.70 Iakhs is concerned, the Commissioner of Income- tax (Appeals) did not disturb the finding of the Assessing Officer.
On further appeal before the Tribunal, the assessee inter alia challenged the validity of the assessment made under section 153A of the Act. This onaccount of the fact that no assessment in respect of the six assessment years were pending so as to have abated. The impugned order accepted the aforesaid submission of the respondent- assessee by inter alia placing reliance upon the decision of the Special Bench of the Tribunal in All Cargo Global Logistics Ltd. rendered on July 6, 2012 - [2012] 18 ITR (Trib) 106 (Mum) [SB]. The Tribunal in the impugned order further held that no incriminating material was found during the course of the search. Thus the entire proceedings under section 153A of the Act were without jurisdiction and therefore the addition made had to be deleted on the aforesaid ground. The impugned order also thereafter considered the issues on the merits and on it also held in favour of the respondent-assessee.
Mr. Kotangale, the learned counsel for the Revenue very fairly states that the decision of the Special Bench of the Tribunal in All Cargo Global Logistics Ltd. v. Deputy CIT [2012] 18 ITR (Trib) 106 (Mum) [SB] was a subject matter of challenge before this court as a part of the group of appeals disposed of as CIT v. Continental Warehousing Corporation (Nhava Sheva) Ltd. [2015] 374 ITR 645 (Bom) upholding the view of the Special Bench of the Tribunal in All Cargo Global Logistics Ltd. Consequently, once an assessment has attained finality for a particular year, i.e., it is not pending then the some cannot be subject to tax in proceedings under section 153A of the Act. This of course would not apply if incriminating materials are gathered in the course of search or during proceedings under section 153A of the Act which are contrary to and/or not disclosed during the regular assessment
8 Shri Purshottam G. Budhwani 640 & 5126/Mum/2015 proceedings. In view of the above, on issue of jurisdiction itself the issue stands concluded against the Revenue by the decision of this court in Continental Warehousing Corporation (Nhava Sheva) Ltd. (supra). In the appeal before us, the Revenue has made no grievance with regard to the impugned order of the Tribunal holding that in law the proceedings under section 153A of the Act are without jurisdiction. This in view of the fact that no assessment was pending, so as to abate nor any incriminating evidence was found. The grievance of the Revenue is only with regard to finding in the impugned order on the merits of the individual claim regarding gifts and deemed dividend. However once it is not disputed by the Revenue that the decision of this court in Continental Warehousing Corporation (Nhava Sheva) Ltd. (supra) would apply to the present facts and also that there are no assessments pending on the time of the initiation of proceedings under section 153A of the Act. The occasion to consider the issues raised on the merits in the proposed questions becomes academic."
6. Respectfully following the above said decision of the Jurisdictional High Court and the decision in assessee's own case by the Coordinate Bench of this Tribunal, we hold that no disallowance will survive as such disallowance was not made based on any incriminating material found in the course of search and all these assessments are admittedly, non-abated assessments. Thus, we delete the disallowance made in respect of interest paid and business expenses against interest income received from partnership in all these assessment years.”
Respectfully following the said decisions, we hold that none of the additions/disallowances made in these two assessments made u/s 153A of the Act for Assessment Years 2000-01 and 2001-02 will survive and hence all these additions/disallowances are deleted for the reason that in this case no additions were made based on any incriminating materials seized and the assessments were not abated.
9 Shri Purshottam G. Budhwani 640 & 5126/Mum/2015
Since we have held that the assessments are not abated and the additions/disallowances are not made based on any incriminating materials, the grounds raised by Revenue in its appeal will not survive. We reject the grounds raised by Revenue in its appeal. As we have decided the issue on the preliminary ground, all other arguments advanced by both the parties become academic.
In the result, the appeals filed by assessee are allowed and Revenue’s appeal is dismissed.
Order pronounced in the open court on 25th January, 2017.