Income Tax Appellate Tribunal - Hyderabad
Ahura Holdings,, Bangalore vs Assessee on 17 April, 2015
IN THE INCOME TAX APPELLATE TRIBUNAL
HYDERABAD BENCHES "B", HYDERABAD
BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER
AND
SHRI SAKTIJIT DEY, JUDICIAL MEMBER
ITA No. A.Y. Appellant Respondent
789/HYD/2014 2003-04 Ahura Holdings, Asst.
790/HYD/2014 2004-05 Hyderabad Commissioner
791/HYD/2014 2005-06 Through: of Income Tax,
792/HYD/2014 2006-07 Partner Circle-6(1),
793/HYD/2014 2007-08 Bimal Poddar, Hyderabad
Bangalore
[PAN: AAJFA0644D]
For Assessee : Shri Satish Chandra Bagadiya,
Sr. Advocate
Shri Pavanved &
Shri Kantilal Bam, ARs
For Revenue : Shri D. Sudhakar Rao, DR
Date of Hearing : 17-02-2015
Date of Pronouncement : 17-04-2015
ORDER
PER B. RAMAKOTAIAH, A.M. :
These five appeals are by assessee ( Partner Bimal Poddar ) against the common order of the Commissioner of Income Tax(Appeals)-IV, Hyderabad dated 13-12-2013 on the issue of rejecting assessee's application u/s. 154 of the Income Tax Act [Act]. Before adverting to the issues raised by assessee, it is necessary to explain the back ground to the filing of applications u/s. 154 before Assessing Officer [AO] which was rejected by him as it pertains to disputed issues.
I.T.A. Nos. 789, 790, 791, 792 &
:- 2 -: 793/Hyd/2014
Ahura Holdings
2. Search and seizure operations were conducted at the residential cum business premises of Sri Gopal Lal Badruka on 26-07- 2006, partner of assessee-firm u/s. 132 of the Act. In the course of search it was found that assessee actively involved in developing a property situated at 205, Tarbund, Secunderabad Cantonment. Certain incriminating material was seized. Statements were recorded from two partners who admitted that there was extra consideration received in the course of business transactions which were in fact invested in various other properties. Assessment was framed u/s. 153A of the Act in the hands of Sri Gopal Lal Badruka in whose name warrant u/s. 132 was issued along with that, since the source of extra consideration received was from the firm, assessment was framed in the name of assessee-firm u/s. 153C. Assessment was also completed in the name of other partner Sri Avadesh Badruka u/s. 153C r.w.s. 153A of the Act. Assessee herein filed return of income for AY. 2003-04 to AY. 2007-08. In AY.2003-04, there is a claim of loss of Rs. 1,73,191/- which was disallowed by the AO on the reason that no business has started in that year. In other years, assessee has declared incomes as follows:
A.Y. (Rs.)
2004-05 2,11,91,490
2005-06 1,45,95,361
2006-07 30,63,937
2007-08 1,14,06,343
3. AO however, on the basis of the incriminating material and analyzing various statements in seized material assessed the incomes as under:
A.Y. (Rs.)
2004-05 10,61,82,676
2005-06 4,63,83,800
2006-07 99,08,940
2007-08 3,32,39,000
I.T.A. Nos. 789, 790, 791, 792 &
:- 3 -: 793/Hyd/2014
Ahura Holdings
4. Being aggrieved against the aforesaid assessments, assessee went in appeal before CIT(A) who has agreed with the order of AO for AYs. 2003-04, 2005-06, 2006-07 & 2007-08. He has given partial relief for AY.2004-05. While giving relief in that year, CIT(A) considered the ratio of un-accounted receipts to accounted receipts at 1.80 : 1 and determined the un-accounted receipts in respect of layout of plots at Rs.2,48,48,523/-. These orders of the CIT(A) were contested before the ITAT both by Revenue and assessee, along with the individual assessments of Sri Gopal Lal Badruka and Sri Avadesh Badruka. In the appeals of the firm, assessee inter alia contested, as seen from the grounds of appeal that instead of entire on-money receipts, AO should have assessed profit born of such un-recorded receipts, no expenditure was allowed even though it was not possible not to have any expenditure to earn the income and further that additions were confirmed in the hands of the firm against the claim of assessee that it should be assessed in the hands of partners Sri Gopal Lal Badruka and Sri Avadesh Badruka. Assessee also raised certain additional grounds about the quantification of income also. As seen from the ITAT's order in assessee's case in the course of arguments, assessee also contested the initiation of proceedings u/s. 153C without incriminating material and also with reference to contention that statements were obtained under coercion. In the appeals of the individuals, they have contested that the amount should be assessed in the hands of individual substantially who admitted the income but not in the hands of the firm. There were cross- appeals also with reference to CIT(A)'s directions to assessee on the income from un-recorded receipts in the hands of the firm M/s. Ahura Holdings. These issues were considered by the ITAT and issues were more or less confirmed in favour of Revenue i.e., assessing the un- accounted income in the hands of assessee-firm and protectively in the hands of individual partners and also with reference to quantifications.
I.T.A. Nos. 789, 790, 791, 792 &
:- 4 -: 793/Hyd/2014
Ahura Holdings
The contentions raised with reference to invoking the provisions of Section 153C were considered in para 16, 17 and 18 and held that proceedings were correctly initiated in the hands of the assessee u/s. 153A / 153C. It was also held that AO can also place reliance on all material available, even though it is not found during the course of search operations. It was also further held vide para 19 of the order, the AO was well within his powers in the interpolating the receipt of on- monies on the basis of material available on record, even in respect of other transactions for which no direct material was found at the time of search. ITAT considered all the grounds and held in favour of the Revenue. Thereafter, assessee also filed Miscellaneous Applications on various issues which were also rejected by the bench. In the mean time, assessee carried the matter to the Hon'ble jurisdictional High Court and the Hon'ble High Court in the case of Sri Gopal Lal Badruka, Sri Avadesh Badruka and M/s. Ahura Holdings Vs. DCIT [346 ITR 106 (AP)] held as under:
"Sections 153A, 153B and 153C were inserted in the Income-tax Act, 1961, with effect from June 1, 2003, in Chapter XlV. These sections are applicable to search operations or requisitions made after May 31, 2003. Simultaneously section 158BI was inserted in Chapter XIV-B. By virtue of section 158BI of the Act, the various provisions of Chapter XIV-B of the Act are made inapplicable to proceedings under sections 153A and 153C of the Act. The effect of this is that while the provisions of Chapter XIV -B of the Act limit the inquiry by the Assessing Officer to those materials found during the search and seizure operation, no such limitation is found in so far as sections 153A and 153C of the Act are concerned. Therefore, it follows that for the purposes of sections 153A and 153C of the Act, the Assessing Officer can take into consideration material other than what was available during the search and seizure operation for making an assessment of the undisclosed income of the assessee."
I.T.A. Nos. 789, 790, 791, 792 & :- 5 -: 793/Hyd/2014 Ahura Holdings
5. Various contentions raised by assessee were considered and appeals were dismissed upholding the orders of ITAT. Thus, matters were concluded by the order of Hon'ble High Court and assessee has not preferred any further appeals to Hon'ble Supreme Court and accordingly the assessments in the case of the firm have become final.
6. Assessee-firm is consisting of two groups of partners, two from Badruka Group against whom the search proceedings were initiated at Hyderabad and other two from Poddar Group, who live in Bangalore. There were no proceedings in the hands of the Poddar Group and this fact was even accepted by the Revenue and was also considered by the Hon'ble High Court. Consequent to completion of assessment proceedings after the orders of the Hon'ble High Court, recovery proceedings were initiated against the firm. In the course of recovery proceedings, AO/TRO initiated recovery action against Poddar Group. On record, there were affidavits from the partners of Poddar Group (two partners) that they have nothing to do with the activities of M/s. Ahura Holdings outside the Books of Accounts and they were only receiving amounts as recorded in the Books of Accounts. This fact was also accepted by Badruka Group. Therefore, the Poddar group of assessee has filed written submissions in the present appeals stating that "
"Equity and justice demanded that the recovery by the department should have been made first from the unaccounted assets of Gopal Badruka; but the department recovered it from Poddar Group of partners because the department found it to be more convenient, with legal case. In order to protect its own interest, Poddar Group re-examined entire gamut of assessment, appeals and final creation of liability against the firm. The matter was referred to legal experts and all the documents were examined. It was found that the assessments were legally not tenable and were null and void ab- initio; because of the following reasons:-
I.T.A. Nos. 789, 790, 791, 792 & :- 6 -: 793/Hyd/2014 Ahura Holdings
2. Legal validity of action of AO u/s.153C:
3. Assessment was time barred u/s.153B:
4. Orders are null and void in view of non compliance of the provisions of section 153D:
5. No formal approval as envisaged u/s.153D Orders passed under Block Assessment: AYs.2003-04, 2004-05, 2005-06 2006-07 and 2007-08 ( Emphasis supplied)
7. In view of the above, assessee preferred an applications u/s. 154 in the impugned assessment years before the AO. AO in his brief order dt.06-06-2012 addressed to Mr. Bimal Poddar and Abishek Poddar vide a letter rejected the applications u/s. 154 stating as under:
"2. The block assessment proceedings for the Asst. Years 2003-04 to 2007-08 are originally completed on 29.12.2008, as stated by you in your letters. The firm has preferred appeal before CIT(A) against the orders of assessment against which further appeal before ITAT was also filed. The appeal before ITAT was also disposed. The issue raised by you vide letter dated 29.05.2012 (para 5) and letter dt. 04.06.2012 are debatable and cannot be adjudicated under the provisions of letter dated 29.05.2012 (para 5) and letter dt. 04.06.2012, as application u/s.154 of the I.T.Act, 1961 cannot be entertained and the letters filed by you are lodged".
8. The matter was carried to the Ld.CIT(A) and assessee in fact asked for time to represent the case as they have asked for certain information under the provisions of RTI. However, Ld.CIT(A) rejected the same and dismissed all the appeals by stating as under:
"7. I have examined the facts on record and the submissions of the appellant in its appeal memo. The objections of the appellant on the basis of which the rectification had been sought are debatable issues as noted by the Assessing Officer. The contentions of the appellant require not only a detailed analysis of facts but also of the legal provisions associated with the validity of the assessment proceedings and the assessment of income as such. These are not errors I.T.A. Nos. 789, 790, 791, 792 & :- 7 -: 793/Hyd/2014 Ahura Holdings apparent from record rectifiable u/s 154.
8. Further, in its application u/s 154, the appellant has questioned the validity of the assessment order and the assessment of on money receipts as its income. These issues have been adjudicated upon in the earlier appellate proceedings before the CIT(A), the ITAT and the High Court. To adjudicate on the assessability of the on money receipts as the income of the appellant would amount to a review of the earlier order of the CIT(A) which is not permitted under the Act. Indeed, in view of the fact that the assessment has been the subject matter of an appeal before the High Court, fresh adjudication of the same issue is out of question.
9. It is to be noted in this regard that notices dated 20.03.2013, 23.07.2013, 02.09.2013 & 31.10.2013 had been issued to the appellant in the course of the appellate proceedings. Sri Bimal Kumar Poddar, partner of the appellant, vide his letter dated 06.12.2013 has submitted that the appellant was awaiting information relating to the assessment under the Right to Information Act and requested that the hearing in the case be adjourned till receipt of the information.
10. Indeed, one of the prayers of the appellant, appended to its grounds of appeal is that the Assessinq Officer be directed to provide the information sought.
11. For the sake of clarity, it is to be mentioned here that the appellant is a partnership firm with the following four partners:
1. Sri Gopal Lal Badruka
2. Sri Avadesh Badruka
3. Sri Bimal Kurnar Poddar
4. Sri Abhishek Poddar It is seen from the record that the earlier appeals against the assessment orders were filed by Sri Avadesh Badruka on behalf of the appellant. In its order, the High Court has also noted as follows:
"The assessees before us are Gopal Lal Bhadruka, his son, Avedesi, Bhadruka, and their firm, Ahura Holdings. In fact, the firm, Ahura Holdings, has two other partners but they are not concerned with these proceedings.
I.T.A. Nos. 789, 790, 791, 792 &
:- 8 -: 793/Hyd/2014
Ahura Holdings
Ahura Holdings is engaged, inter alia, in real estate and at the relevant time it was developing a property in the Secunderabad cantonment. "
12. The application u/s 154 was filed by AR representing S/Sri Bimal Kumar Poddar and Abhishek Poddar. The present appeals, similarly have been filed by Sri Bimal Kumar Poddar on behalf of the firm. In other words, while the earlier appeals were filed by one group of partners, the present appeals have been filed by the second group.
13. The fact that some of the partners have applied for information and awaiting its supply by the Assessing Officer is not, in my view, cause for further adjourning hearing in the case. Such information, available in the Assessing Officer's record, would pertain to the merits of the validity of the assessment order and the assessment of the income. As noted above, these are not issues that are the subject matter of a proceedings u/s 154 and/or are no longer open to adjudication. Therefore, the availability or otherwise of information with the appellant is irrelevant to disposal of these appeals. In view of the above, the appellant's request for an adjournment has been rejected and the appeals are being disposed of as noted herein.
14. With regard to the appellant's prayer that the Assessing Officer be directed to provide the information as applied for, it is held that this is not an appealable issue u/s 246A and this prayer is dismissed".
8.1 Assessee is aggrieved on the above common order of the Ld.CIT(A). Assessee has raised as many as 16 grounds. Out of which, Ground No.1, 2, 3, 4, 7, 8 and 11 to 16 are not pressed. The only effective grounds argued by assessee are Ground No.3 on three issues which are considered in the order. Ground No.5 is on the issue that CIT(A) erred in holding that the matter cannot be adjudicated and the issues are debatable. Ground No.6 is also same. Ground No.9 is that CIT(A) has not provided opportunity of hearing. Ground No.10 is on the issue that CIT(A) held that information required by assessee as irrelevant I.T.A. Nos. 789, 790, 791, 792 & :- 9 -: 793/Hyd/2014 Ahura Holdings for disposal of this appeal. Assessee is contesting basically the order of CIT(A) extracted above in its grounds rejecting assessee contentions.
9. We have heard Ld. Counsel who represented the Poddar Group and perused the written submissions filed running to 12 pages along with Annexures running to 300 pages. We have also perused various case laws placed on record and circulars relied upon in the separate case law Paper Book running to 94 pages. These were heard originally on 10-11-2014 and when orders are pending vide letter dt.27- 12-2014, Assessee enclosed copy of the jurisdictional High Court's order in another case requesting that the same be considered. In order to provide an opportunity to both the parties, the case was re-posted and was heard finally on 17-02-2015.
10. It was the submission that on examination of the records, Poddar Group found that assessment orders themselves were ab initio null and void because of jurisdictional defects in the assessment. The submissions on first prayer are as under:
"The first prayer of the appellant was that the initiation of proceedings against the firm u/s 153C was not in accordance with the law as laid down by various courts. As per provisions of assessment relating to search cases, the assessment of search person is required to be made u/s 153A. However, if the AO is satisfied that valuables and/or documents found in the course of search 'belong to' any person other than the searched person; then the assessing officer is required to hand over such material to the assessing officer of such other person. Then assessing officer of such other person is to proceed in case of other person as if search has taken place in case of other persons (as required u/s 153C of the IT Act). Hon'ble Supreme Court has laid down law in case of Manish Maheshwari Vs. ACIT & Another 289 ITR 0341 and held that if the assessing officer of searched person is satisfied that the income found from seized documents/assets belong to other person, then such satisfaction should be in writing. In view of the above decisions, the Poddar Group tried to find from records whether any I.T.A. Nos. 789, 790, 791, 792 & :- 10 -: 793/Hyd/2014 Ahura Holdings such satisfaction was ever recorded which has resulted in ultimate implication of Poddar Group in the matter and found from records themselves for all the assessment years that no satisfaction was ever recorded by the AO".
10.1. This prayer of assessee cannot be accepted in view of the fact that judgment of the Hon'ble Supreme Court in the case of Manish Maheshwari Vs. Asst. Commissioner of Income Tax which was considered by the Hon'ble jurisdictional High Court in assessee's own case vide para 18 of the order wherein it was held as under:
"At this stage, we may mention that learned counsel for the assessee relied upon Manish Maheshwari Vs. Asst. Commissioner of Income Tax for the purpose of interpreting Section 158BB of the Act. We have gone through the decision cited by learned counsel and find that it does not support his case for the simple reason that the provisions Chapter XIV-B of the Act are not applicable to proceedings under sections 153A/153C of the Act. Consequently, the principles of Section 158BB of the Act cannot be imported for the purpose of interpreting Section 153A/153C of the Act. The view expressed by the Supreme Court in Manish Maheshwari has no application to the present case".
10.2. In view of the specific finding of the Hon'ble jurisdictional High Court, the contentions raised under this ground cannot be re- considered in the 154 proceedings as requested. In view of the specific finding of the jurisdictional High Court, the other contentions on the order sheet entries extracted in the written submissions also become infructuous since the entire issue of assessment cannot be re-considered in the proceedings u/s. 154.
11. The next prayer is with reference to contention that assessment was time barred u/s. 153B. It was the contention that the assessment orders were even though dated 29-12-2008 and there was endorsement recorded that they were dispatched, the orders were not I.T.A. Nos. 789, 790, 791, 792 & :- 11 -: 793/Hyd/2014 Ahura Holdings exactly dispatched on 31-12-2008 as they are served on 02-01-2009. In view of this, the date of order passed on 29-12-2008 was back dated and hence it should be held as time barred. This contention was neither raised by the Badruka Group in the original assessment nor is evident from the records. Therefore, we cannot place reliance on the arguments on presumptions and assumptions made by Poddar Group. In fact the orders were dated 29-12-2008 and were said to have been dispatched on 31-12-2008 and also served before 04-01-2009 as per assessee's own contentions. Just because the orders were served after few days of date of passing the order, it cannot be held that the order is back dated as contended by assessee. Moreover, as seen from the submissions, this issue was raised for the sake of questioning the veracity of the assessment order on presumptions and assumptions. When assessments were originally completed invoking the jurisdiction u/s. 153C, if there was any doubt about the service of the orders/back dating of orders, the same would have contested by Managing Partner. Poddar Group, who are residing in Bangalore and are not party to the assessment proceedings could not have visualised these. Since there is no evidence, the presumptions raised by assessee on the basis of service of orders cannot be accepted and that too in the proceedings u/s. 154. As the assessments itself got finalized after the orders of the Hon'ble jurisdictional High Court, it is not expected from assessee to file fresh appeals by other group and contest the issues which are not even contested in the first round of appeal. In view of this, this ground is also rejected.
12. Likewise, assessee also contested as third prayer that orders are null and void in view of non-compliance of provisions of Section 153D. Assessee has raised various contentions that draft order was put up but there was no final approval on the order by competent authority.
I.T.A. Nos. 789, 790, 791, 792 &
:- 12 -: 793/Hyd/2014
Ahura Holdings
This contention cannot be accepted as AO in all the impugned orders has clearly stated in the final order that "the order is passed with the previous approval of Additional CIT, Central Range-I, Hyderabad as per the provisions of Section 153D of the I.T.Act 1961". In view of the clear finding in the assessment order, this contention of assessee cannot be accepted. Just because assessee sought information under RTI, it does not mean that AO has not followed the procedures u/s. 153D, when, he has clearly stated in the assessment order that requisite approvals have been received and order has been passed with approval of Additional Commissioner. In view of this, this contention of assessee also requires to be rejected.
13. Assessee relied on various case laws with reference to powers of ITAT to rectify the orders, powers of AO in modifying the order and various other directions. List of cases relied upon are as under:
S.No Citation Parties 1. Circular No.(1958)14(XI-35) of Circular of CBDT (807) & 1955 (2820) 2. 34 ITR 143 M.K. Venkatachalam, ITO & Supreme Court Anr Vs. Bombay Dying & Mfg. Co.Ltd. 3. (1959) 36 ITR 350 Maharana Mills (Pvt) Ltd., Vs. Supreme Court Income Tax Officer, Porbandar 4. (1961)/41 ITR 732 The Income Tax Officer, Supreme Court Alwaye Vs. The Asok textiles Ltd. Alwaye 5. (1963) 47 ITR 895 Central Indian Insurance Co. (MP) Madhya Pradesh Ltd. Vs. ITO 'A' Ward, Indore High Court 6. (1969) 73 ITR 283 Blue Star Engineering Co. (Bom) Bombay High Court (Bombay) Pvt. Ltd. Vs. Commissioner of Income Tax, Bombay city 7. (1970) 78 ITR 26(SC) L. Hirday Narain Vs. Supreme Court of India Income Tax Officer, Bareilly I.T.A. Nos. 789, 790, 791, 792 & :- 13 -: 793/Hyd/2014 Ahura Holdings 8. (1981)/132 ITR 7 (P&H) High Baij Nath Vs. Court of Punbaj, Haryana Commissioner of Income Tax 9. (1998) 229 ITR 383 National Thermal Power (SC) Supreme Court Ltd. Vs. Commissioner of Income Tax 10. (2007) 289 ITR 341 Manish Maheshwari Vs. Supreme Court of India Asst. Commissioner of Income Tax & Another 11. (2011) 333 ITR 281 Commissioner of Income (2012) 20 Taxmann Tax Vs. Panchajanyam 584 (Kerala) Management Agencies & Services 12. (2012) 23 Taxmann 28 (Kerala) Commissioner of Income Tax Vs. Dr. T.M.Knitwears 13. (2014) 43 Taxmann 446 Commissioner of Income (Supreme Court) Tax Vs. Calcutta Knitwears Supreme Court 14. (2014) 46 Taxmann 280 Commissioner of Income (Allahabad) Tax Vs. Gopi Apartment 15. ITR 359 - 2013 From Reporter (Supreme Court)
14. There is no need to analyse each of the above, for the simple reason that those cases are given in the course of assessment proceedings or pending assessment proceedings. In the present case, the proceedings have come to a finality by the orders of Hon'ble High Court. Therefore, if at all any rectification has to be done, those powers are not either with the AO or with the CIT(A) or with the ITAT. Since assessee has not preferred any further appeal to the Supreme Court, as far as the assessments are concerned, all matters are stated to have become final and therefore the applications filed by Poddar Group in the guise of petition u/s. 154 can only be considered as prolonging the litigation in the guise of Rectification Applications in a different front and trying to unsettle the settled matters.
I.T.A. Nos. 789, 790, 791, 792 &
:- 14 -: 793/Hyd/2014
Ahura Holdings
15. It is also seen that Poddar Group has become partners of the firm as early as 01-04-1995 and the partnership then consisted of these persons:
1. Feroza Colah
2. Seemonil Nargolwala
3. Bimar Poddar
4. Abishek Poddar
5. Gopal Lal Badruka
6. Avadesh Badruka
16. Parties 1 and 2 are owning property admeasuring 15,350 sq. yds., situated at 205, Tarbund, Secunderabad Cantonment and they have introduced as their capital and partnership commenced from 01- 04-1995. As per the deed of partnership, other four partners shall bring capital as may be required and all partners shall have all powers to enter into all transactions. On 30-04-1998 by way of Retirement Deed, partners 1 & 2 have retired from the firm by accepting the credit balance in their capital account and then a fresh Partnership Deed dt. 01-05- 1998 was executed. The Partnership Deed drawn on 01-05-1998 mentions that Poddar Group has 50% share and Badruka Group has 50% share and partnership does not dissolve even on death of any of the partners. Further, General Power of Attorney was granted to Sri Gopal Lal Badruka on behalf of the firm. Even as per the admission of Poddar Group in the affidavits filed before the AO as available in the Paper Book at the time of original appeals, Poddar Group were not managing the day to day affairs of the firm. In view of this, Returns were filed by Badruka Group and assessments were also completed already on the returns filed by/on behalf of the firm. Since, Sri Gopal Lal Badruka is the active partner or managing the affairs and has filed the returns validly at the point of time, the present applications filed by Poddar group are per se is not maintainable. The appeals filed before us also I.T.A. Nos. 789, 790, 791, 792 & :- 15 -: 793/Hyd/2014 Ahura Holdings are signed by the other group who are not managing the partnership firm. As per the provisions of The income Tax Act, the appeals are to be preferred and to be verified by Managing Partner. But, in this case as admitted, Poddar Group is not managing the affairs for firm. Therefore preferring the appeals itself is not correct and appeals per se are not maintainable. This aspect was not examined by CIT(A). Therefore, we refrain from commenting on the above, except to state that the appeals itself are not maintainable for the reason that Poddar Group cannot prefer appeals as per the provisions of the Act. Be that as it may, what Poddar group is asking, in the guise of applications under Section 154, is review of the orders, which have become final by the order of the jurisdictional High Court.
17. Section 16 of the Indian Partnership Act states that subject to a contract between the partners, if partner carries on a business of the same nature as and competing with that of the firm he shall account for and pay to the firm of profits by him in that business. In this case, one group of the partners admitted that the undisclosed receipts arose from carrying on the business of the firm which might have been appropriated for personal purposes. This admission remains un- challenged. The assessment of the firm has reached finality by the orders of AO, CIT(A), ITAT and after the order of the Hon'ble High Court. There is no dispute with reference to assessments of the income in the hands of the firm. Under section 25 of the Indian Partnership Act, 1932, partners are jointly and severally liable for all acts of the firm which they were partners. Therefore, whether Poddar Group has participated in the day to day business of the firm or not, under the provisions of the Act, they are jointly and severally liable for the tax liability of the firm. Section 188A of the Income Tax Act, 1961 also specifies that the partners are jointly and severally liable for the tax payable by the firm.
I.T.A. Nos. 789, 790, 791, 792 &
:- 16 -: 793/Hyd/2014
Ahura Holdings
In the case of Tity Thomas Vs. Tax Recovery Officer and Another [207 ITR 1072] Hon'ble Kerala High Court held as under:
"The provisions of a taxing statute laying down the machinery for the calculation of the tax or the procedure for its collection have to be construed in such a way as to effectuate the intention of the Legislature, which is to make the charge effective and to make the machinery of assessment workable.
Having regard to the provisions of Section 25 of the Indian Partnership Act, 1932, the partners are jointly and severally liable for all acts of the firm while they were partners. Therefore, the partners are jointly and severally liable for the tax dues of the firm. In fact Section 189 of the Income tax Act, 1961, casts a liability on the partners, and makes the amount recoverable from them in case the firm is dissolved or if the business of the firm is discontinued. What section 188A which came into force from April 1, 1989, appears to have done is to extent the principles of section 189 to a firm in existence as well. Hence section 188A which does not cast any new liability on the partners, is liable to be invoked for recovery of all amounts remaining unpaid by firms, and authorizes proceedings against the partners thereof even though the firms continue to subsist.
Held, dismissing the writ petition, (i) that section 188A could be applied for recovery of dues of the firm for the years 1981-82 and 1982-83 from its partners;
(ii) that the assessment was one completed on the firm as reconstituted under section 187. There was no case that the procedure prescribed in that section had not been followed. The petitioners were partners of the firm during the years 1981-82 and 1982-83. If so, there could not be any room for any complaint that the assessment was bad for violation of the principles of natural justice".
Any dispute on extent of tax liability interse between two groups, consequent to the orders can be subject matter of civil dispute between parties, but the same can not be agitated in the form of application under Section 154 of the IT Act so as to review the proceedings finalized earlier.
I.T.A. Nos. 789, 790, 791, 792 &
:- 17 -: 793/Hyd/2014
Ahura Holdings
18. As briefly stated, assessee filed a copy of the jurisdictional High Court order in the case of CIT Vs. Shetty's Pharmaceuticals and Biologocals ltd., dt. 26-11-2014 in ITA No. 662 & 668/2014 for fresh consideration. First of all this order was passed by the Hon'ble jurisdictional High Court after the case was originally heard on 10-11- 2014. Moreover, as seen from the order, the issue raised in the appeal itself is whether the satisfaction when not recorded vitiates the assessment order u/s. 153C. The entire issue right from the AO level is on the fact that there is no proper satisfaction and in that context, the Hon'ble jurisdictional High Court has held that Section 153C mandates record of satisfaction of the AO which is a precondition for invoking jurisdiction and it is not a mere formality. However, this question was indirectly raised in the original proceedings of this assessee, as assessees have challenged initiation of proceedings u/s. 153C and Hon'ble High Court has already given judgment against assessee in assessee own case as quoted supra. In view of the specific decision of the jurisdictional High Court in assessee's own case, this forum cannot re-examine, review the decision of the jurisdictional High Court in the present proceedings, that too initiated in the guise of Sec.154 proceedings as rectification, which has very limited scope. Following later High Court judgment is considered to be a judicial norm when there are conflicting judgments, but in our view, there are no conflicting judgments applicable now. The judgment in assessee's own case was given in a set of facts and this cannot be upset by relying on the subsequent High Court judgment given in another case in different set of facts. Even though this forum has to follow the principles laid down / ratio decidendi in all the cases being adjudicated afresh, since the matters in this particular group of cases have already reached finality, these cannot be reviewed in the guise of proceedings u/s. 154 of the Act. Accordingly, assessee's reliance on above judgment was rejected.
I.T.A. Nos. 789, 790, 791, 792 &
:- 18 -: 793/Hyd/2014
Ahura Holdings
19. Supreme Court in Volkart Brothers Vs. CIT [82 ITR 50] held that bringing debatable issues or on issue conceivable two views are possible on the subject matter or a matter which is subject to long drawn process of reasoning, the provisions of Section 154 are not applicable. In the case of ACIT Vs. Saurashtra Kutch Stock Exchange Ltd., [305 ITR 227 (SC)] the Hon'ble Supreme Court held that a patent, manifest and self evident error which does not require elaborate discussion of evidence or arguments to establish it, can be said to be an error apparent on the face of the record and can be corrected while exercising certiorari jurisdiction. An error cannot be said to be apparent on the face of the record if one has to travel beyond the record to see whether the judgment is correct or not. An error apparent on record means an error which strikes one on mere looking and does not need a long drawn out process of reasoning on points on which there may be conceivably two opinions. Such error should not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest and clear that no court would permit it to remain on record. If the view accepted by the court in the original judgment is one of possible views, the case cannot be said to be covered by an error apparent on the face of record". In view of the clear principles laid down by the Hon'ble Supreme Court in the above said cases, we are of the opinion that there is no mistake apparent from record which require a modification as sought out by assessee. The issues raised by Poddar group involves long drawn process of examination of records and the conclusions can be divergent. As considered by us above, there is no merit in the contentions as well. Therefore, AO is correct in holding that these are disputed matters which cannot be attended to under the provisions of Section 154. Moreover, when the jurisdictional High Court order was not contested by assessee in further appeal before the Hon'ble Supreme Court, the assessment cannot be subject matter of further proceedings, that too questioning the I.T.A. Nos. 789, 790, 791, 792 & :- 19 -: 793/Hyd/2014 Ahura Holdings very basis of the assessment order. It is not open to assessee to question the assessment order which have already become final in one set of appeals in the guise of Section 154 so as to review the entire procedure. This sort of action by the one party of the partnership cannot be encouraged, as it may lead to a situation where if there are more than one group of partners and each one want to pursue the litigation on concluded matters in a different manner on different issues, there can be no end to the litigation. These sort of proceedings by assessee cannot be entertained and should be discouraged. In view of this, we are of the opinion that what assessee is trying to agitate in the guise of Section 154 is review of earlier orders. Hon'ble Madhya Pradesh High Court in the case of CIT Vs. Shyamlal M. Sony [276 ITR 156] considered binding precedents and held that an appeal arising out of the same order of the Tribunal has been dismissed, then it necessarily follows that all appeals from that order are to be disposed off on the same lines. It is of no significance whether the dismissal was by a speaking order or otherwise. Respectfully following the principles laid down therein, since the matters were already concluded against assessee in the original proceedings, represented by the Managing Partner of the firm, the matters cannot be re-agitated in the guise of an application u/s. 154, as is being done by Poddar Group in the present batch of appeals. Accordingly, we dismiss the grounds raised and we uphold the orders of the AO and CIT(A). There is no order as to the costs.
Order pronounced in open Court on 17th April, 2015.
Sd/- Sd/-
(SAKTIJIT DEY) (B. RAMAKOTAIAH)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Hyderabad, Dated 17th April, 2015
TNMM
I.T.A. Nos. 789, 790, 791, 792 &
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Copy to :
1. Ahura Holdings, Plot No.684/A, Rd No. 33, Jubilee Hillls, Hyderabad: Through - Partner Sri Bimal Kumar Poddar, 3/1/1, Poddar Niket, Ali Askar Road, Bangalore-560 052.
2. Asst. Commissioner of Income Tax, Circle-6(1), Hyderabad.
3. CIT(Appeals)-IV, Hyderabad
4. CIT-III, Hyderabad
5. D.R. ITAT, Hyderabad