DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, PANAJI vs. SHRI SANJEEV KUMAR MATHIYAN, MUZAFFARNAGAR
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Income Tax Appellate Tribunal, PANAJI BENCH, PANAJI
Before: SHRI R.S. SYAL & SHRI PARTHA SARATHI CHAUDHURY
आदेश / ORDER
PER R.S.SYAL, VP :
These two appeals by the Revenue arise out of the separate
orders dated 04-10-2019 passed by the CIT(A)-2, Panaji in relation
to the assessment years 2012-13 & 2013-14. Since the issue raised
in these two appeals is common, we are, therefore, proceeding to
dispose them off by this consolidated order for the sake of
convenience.
2 ITA Nos.3 & 4/PAN/2020 Sanjeev Kumar Mathiyan
Briefly stated, the facts of the case for the A.Y. 2012-13 are
that the assessee was subjected to search and seizure proceedings on
10-02-2016. Prior to that, the assessee had furnished the original
return u/s.139(4) on 29-03-2013 declaring total income of
Rs.11,79,610/-. Pursuant to search, the Assessing Officer (AO)
completed the assessment by making an addition of
Rs.1,62,49,406/- u/s.56(2)(vii)(c) of the Act on the ground that the
assessee purchased shares of M/s. Mohit Ispat Limited and M/s.
Mathiyan Construction Pvt. Ltd. at a price lower than their Fair
Market Value. The ld. CIT(A) deleted the addition, against which
the Revenue has approached the Tribunal.
Having heard the rival submissions and gone through the
relevant material on record, it is seen as an admitted position that
the assessment year under consideration is 2012-13. Return for this
assessment year was filed belatedly u/s.139(4) on 29-03-2013.
Notice u/s.143(2) could have been issued within six months from
the end of the financial year in which the return was filed, namely,
by 30-09-2013. The assessee was subjected to search on
10-02-2016 and by that time no assessment for the year under
consideration was taken up nor could have been taken up by virtue
of the limitation u/s 143(2) of the Act. Once the position is so and
3 ITA Nos.3 & 4/PAN/2020 Sanjeev Kumar Mathiyan
admittedly no incriminating material was found during the course of
search, the addition in respect of such an unabated assessment year
could not have been made. Our view is fortified by the recent
judgment of the Hon’ble Supreme Court in Pr.CIT Vs. Abhisar
Buildwell (P) Ltd. (2023) 454 ITR 212 (SC) holding that if the
assessment is not pending and no incriminating material is found
during the course of search, no addition can be made in the
assessment u/s.153A of the Act. It has further been observed that
the completed assessment can be reopened by the AO in exercise of
powers u/s.147 subject to the fulfilment of requisite conditions and
those powers are saved. We are instantly concerned with the
assessment u/s.153A of an unabated assessment year for which no
incriminating material was found during the course of search. As
such, the decision of the ld. CIT(A), deleting the addition on this
score, is unexceptionable. However, the AO is at liberty to take
recourse to the appropriate legal provisions in the light of the
decision in of Abhisar Buildwell (supra), if permissible under the
law.
Both the sides are in agreement that the facts and
circumstances of the addition made for the A.Y. 2013-14 and
deleted in the first appeal are mutatis mutandis similar to the
4 ITA Nos.3 & 4/PAN/2020 Sanjeev Kumar Mathiyan
preceding year. Following the view taken hereinabove, we approve
the impugned order on this count.
In the result, both the appeals are dismissed. Order pronounced in the Open Court on 06th November, 2023.
Sd/- Sd/- (PARTHA SARATHI CHAUDHURY) (R.S.SYAL) JUDICIAL MEMBER VICE PRESIDENT पुणे Pune; िदनांक Dated : 06th November, 2023 सतीश आदेश की �ितिलिप अ�ेिषत/Copy of the Order is forwarded to: अपीलाथ� / The Appellant; 1. ��थ� / The respondent 2. 3. The CIT-2 , Panaji 4. DR, ITAT, Panaji Bench, Panaji गाड� फाईल / Guard file. 5. आदेशानुसार/ BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune
5 ITA Nos.3 & 4/PAN/2020 Sanjeev Kumar Mathiyan
Date 1. Draft dictated on 06-11-2023 Sr.PS 2. Draft placed before author 06-11-2023 Sr.PS 3. Draft proposed & placed before JM the second member 4. Draft discussed/approved by JM Second Member. 5. Approved Draft comes to the Sr.PS Sr.PS/PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order. *
