Income Tax Appellate Tribunal - Mumbai
Sriram Security And Consultancy ... vs Acit Cent Cir. 35, Mumbai on 23 February, 2018
IN THE INCOME TAX APPELLATE TRIBUNAL " H" BENCH, MUMBAI
BEFORE SRI MAHAVIR SINGH, JM AND SRI RAJENDRA, AM
MA No. 165/Mum/2016
(Arising in ITA No. 5667/Mum/2010 for A.Y. 2001-02)
MA No. 166/Mum/2016
(Arising in ITA No. 5668/Mum/2010 for A.Y. 2002 -03)
MA No. 167/Mum/2016
(Arising in ITA No. 5669/Mum/2010 for A.Y. 2003 -04)
MA No. 168/Mum/2016
(Arising in ITA No. 5670/Mum/2010 for A.Y. 2004 -05)
M/s Sriram Security & Consultancy ACIT -CC 35,
Services Mumbai
Through Ex-partner Mr. Hemendra R
Merchant, Vs.
nd
211/219, 2 Floor, Bharti Bhavan,
P'DMello Road, Fort,
Mumbai -400 001
Appellant .. Respondent
PAN No. AAOFS 9271 R
MA No. 169/Mum/2016
(Arising in ITA No. 56 52/Mum/2010 for A.Y. 2001 -02)
MA No. 170/Mum/2016
(Arising in ITA No. 56 53/Mum/2010 for A.Y. 2002 -03)
MA No. 171/Mum/2016
(Arising in ITA No. 56 54/Mum/2010 for A.Y. 2003 -04)
MA No. 172/Mum/2016
(Arising in ITA No. 56 55/Mum/2010 for A.Y. 2004 -05)
M/s Sriram Warehousing Corporation ACIT -CC 35,
Through its Ex-partner Mr. Hemendra R Mumbai
Merchant,
Vs.
211/219, 2nd Floor, Bharti Bhavan,
P'DMello Road, Fort,
Mumbai -400 001
Appellant .. Respondent
PAN No. AAOFS 8812 N
2
MA No. 173/Mum/2016
(Arising in ITA No. 5659/Mum/2010 for A.Y. 2001 -02)
MA No. 174/Mum/2016
(Arising in ITA No. 5660/Mum/2010 for A.Y. 2002 -03)
MA No. 175/Mum/2016
(Arising in ITA No. 5661/Mum/2010 for A.Y. 2003 -04)
MA No. 176/Mum/2016
(Arising in ITA No. 5662/Mum/2010 for A.Y. 2004 -05)
M/s Sriram Krishna Security Services ACIT -CC 35,
(Since Dissolved) Through its
Ex-partner Mr. Hemendra Merchant,
Vs.
211/219, 2nd Floor, Bharti Bhavan,
P'DMello Road, Fort,
Mumbai -400 001
Appellant .. Respondent
PAN No. AAMFS 2023 E
MA No. 177/Mum/2016
(Arising in ITA No. 56 63/Mum/2010 for A.Y. 2001 -02)
MA No. 178/Mum/20 16
(Arising in ITA No. 566 4/Mum/2010 for A.Y. 2002 -03)
MA No. 179/Mum/2016
(Arising in ITA No. 5665/Mum/2010 for A.Y. 2003 -04)
MA No. 180/Mum/2016
(Arising in ITA No. 56 66/Mum/2010 for A.Y. 2004 -05)
M/s Sriram Security Agency ACIT -CC 35,
Through Ex-partner Mr. Hemendra R
Merchant,
Vs.
211/219, 2nd Floor, Bharti Bhavan,
P'DMello Road, Fort,
Mumbai -400 001
Appellant .. Respondent
PAN No. AAMFS 7296 J
MA No. 181/Mum/2016
(Arising in ITA No. 56 71/Mum/2010 for A.Y. 2001 -02)
MA No. 182/Mum/2016
(Arising in ITA No. 56 72/Mum/2010 for A.Y. 2002 -03)
MA No. 183/Mum/2016
(Arising in ITA No. 56 73/Mum/2010 for A.Y. 2003 -04)
3
MA No. 184/Mum/2016
(Arising in ITA No. 56 74/Mum/2010 for A.Y. 2004 -05)
M/s SriKrishna Security Services ACIT -CC 35,
Through Ex-partner Mr. Hemendra R
Merchant,
Vs.
211/219, 2nd Floor, Bharti Bhavan,
P'DMello Road, Fort,
Mumbai -400 001
Appellant .. Respondent
PAN No. AAMFS 7297 K
Assessee by : DV Lakhani, AR
Revenue by : M.C. Omi Ningshen , DR
Date of hearing: 23-02-2018 Date of pronouncement : 23-02-2018
ORDER
PER MAHAVIR SINGH, JM:
By these above Misc. Applications, the assessee has requested for rectifying the mistake apparent from the record in the common order of the Tribunal dated 16-12-2015.
2. Brief facts are that the assessee partnership firm was dissolved as on 31-03-2004 and business was continued in proprietary concern of Shri Hemendra R Merchant in his individual capacity. A search action under section 132 of the Act was carried out on the residential and business premises of Shri Hemendra R Merchant on 21-12-2006. It was claimed by the assessee that search action was carried out in the premises of the even though this firm does not existed at the time of search. The assessee filed writ petition before Hon'ble Bombay High Court challenging the authorization issue under section 132 of the Act on the dissolved firm and Hon'ble Bombay High Court in writ petition no. 47 of 2011 vide judgment dated 02-04-2012 dismissed the writ petition.
4Aggrieved, assessee filed SLP before the Hon'ble Supreme Court and Hon'ble Supreme Court in SLP (Civil) No. 29309 of 2012 order dated 05- 11-2014 vide para no. 7 of the judgment directed the Tribunal to consider the contention as to whether the Revenue can proceed to issue a warrant of authorization under section 132 of the Act against the dissolved firm. Now, before us, the learned Counsel for the assessee referred to para 7 of the judgment, which reads as under: -.
"7. In that view of the matter without going into the other details of the case, we dispose of the special leave petition permitting the petitioner assessee to raise the contentions insofar as whether the Income Tax authorities can proceed to issue a warrant of authorization under section 132(1) of the Act against the firm, admittedly, dissolved "as on the date of the issuance of authorization" before the Tribunal, if already not issued in the memorandum of appeal so filed. The Tribunal may consider the said question, independently, in accordance with law."
3. In view of the above, the learned Counsel also referred to Tribunal's order, wherein the grounds raised regarding validity of search operation vide ground no. 1 to 3 as under:-
"1. The CIT(A) erred in holding that the validity of the search and seizure operation cannot be challenged in appeal proceedings before the CIT(A) or the Tribunal.
2. That independent of the issue of whether validity of the search and seizure operation can be challenged in appeal proceedings, the CIT(A) ought to have held that validity of the 5 assessment proceedings can be raised in appeal proceedings.
3. The CIT(A) ought to have held that the proceedings taken by the AO under section 153A of the Act without fulfilling the jurisdiction pre-conditions in that section is illegal and bad in law."
The learned Counsel for the assessee in view of the above grounds raised, stated that the Tribunal has not adjudicated these grounds and treated the same as academic by observing in para 16 as under:-
"16. So far as issue relating to validity of search, the same is treated as academic solely for the reason that, on merits the assessee has got substantial relief. Accordingly, the issue of validity of search is left open. Accordingly, the appeal of the assessee is treated as partly allowed."
4. The learned Counsel for the assessee stated that the Tribunal has committed mistake apparent from record in not adjudicating the grounds raised before it and moreover, he referred to the directions of the Hon'ble Supreme Court to the Tribunal to decide the contentions regarding issuance of warrant of authorization under section 132 of the Act against the dissolved firm as on the date of the issuance of the authorization. Another aspect raised by the learned Counsel is that the Tribunal has not considered the decision of Hon'ble Bombay High court in the case of CIT vs. Continental Warehousing Corporation (Nhava Sheva) Ltd. (2015) 374 ITR 645 (Bom) which is dated 21-04-2015 which is delivered much prior to the passing of the order by the Tribunal on 16-12-2015. The learned counsel of the assessee stated that there is no incriminating material and the specific ground No. 3 which deals with this particular issue has not 6 been adjudicated despite binding decision of Hon'ble Bombay High court. In view of these facts, the learned Counsel stated that there are mistakes apparent from the record and on account of non-adjudication of issues, the matter can be recalled and can be decided accordingly.
5. On the other hand, the learned Sr. Departmental Representative supported the order of the Tribunal.
6. After hearing rival considerations and going through the facts and circumstances of the case, we find that the Hon'ble supreme Court in SLP(Civil) No. 29309 of 2012 dated 05-11-2014 clearly directed the Tribunal permitting the assessee to raise the contention as to whether the Revenue can proceed to issue a warrant of authorization under section 132 of the Act against the dissolved firm before the Tribunal. If not raised already in the memorandum of appeal, the Tribunal may consider the said question independently in accordance with law. Once Hon'ble Supreme Court directed the Tribunal to consider the contention, as above, we recall the order of the Tribunal to adjudicate the direction.
7. As regards to non-adjudication of grounds regarding validity of search and non-consideration of the decision of jurisdictional High Court in the case of Continental Warehousing Corporation (Nhava Sheva) Ltd. (supra), we recall the order qua these two issues. The registry will fix these appeals in due course.
8. In the Result, the Misc. Applications of assessee are allowed.
Order pronounced in the open court on 23-02-2018.
Sd/- Sd/-
(RAJENDRA) (MAHAVIR SINGH)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Mumbai, Dated: 23-02-2018
Sudip Sarkar /Sr.PS
7
Copy of the Order forwarded to:
1. The Appellant
2. The Respondent.
3. The CIT (A), Mumbai.
4. CIT
5. DR, ITAT, Mumbai BY ORDER,
6. Guard file.
//True Copy//
Assistant Registrar
ITAT, MUMBAI