Income Tax Appellate Tribunal - Indore
The Acit, 3(1), Indore vs Smt. Vandana Agrawal, Indore on 10 January, 2018
आयकर अपील
य अ धकरण, इ दौर यायपीठ, इ दौर
IN THE INCOME TAX APPELLATE TRIBUNAL
INDORE BENCH, INDORE
BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER
AND
SHRI MANISH BORAD, ACCOUNTANT MEMBER
IT(SS)A No.63/Ind/2013
Block Period: 01.04.1996 to 31.11.2002
ACIT-3(1), Smt. SangeetaAgrawal,
Indore बनाम/ 147/47, Bhagwandeen
Nagar, Indore
Vs.
(Revenue) (Respondent )
P.A. No. Not available
IT(SS) A No.64/Ind/2013
Block Period: 01.04.1996 to 31.11.2002
ACIT-3(1), Smt. VandanaAgarwal,
Indore बनाम/ 8/2, New AnajMandi,
Chawani, Indore(M.P.)
Vs.
(Revenue) (Respondent )
P.A. No. Not available
Revenue by ShriLal Chand CIT-DR
Respondent by ShriC.P. Rawka, CA
Date of Hearing: 08.01.2018
Date of Pronouncement: 10.01.2018
आदे श / O R D E R
PER KUL BHARAT, J.M:
These two appeals by different assessee against the different orders of Ld. Commissioner of Income Tax(Appeals), (in short Sangeeta&VandanaAgarwal 'CIT(A)'), both dated 22.01.2013 relating to two different assessee. Since the identical facts and grounds are raised both the appeals were taken up together and are being disposed by way of consolidated order.
First we take up IT(SS) A No.63/Ind/2013 The Revenue has raised following grounds of appeal:
"On the facts & in law and in the circumstances of the case, the Ld. CIT (A) has erred in:
1.On the facts and circumstances of the case, the Ld. CIT (A)-II has erred in annulling the order passed by the Assessing Officer.
2.On the fact and circumstances of the case, the Ld. CIT(A)-II Has erred in relying upon the Hon'ble Supreme Court decision in Manish Maheshwari case without appreciating the fact that the facts in the instant case are completely different from the facts in Manish Maheshwari case.
3.On the fact and circumstances of the case, the Ld. CIT(A)-II Has erred in not appreciating the facts that the jurisdictional officer ACIT- 1(1) issued the notice u/s. 158BD on the basis of implicit satisfaction gathered from the seized material of the entities searched who were his assessee.
4.On the fact and circumstances of the case, the Ld. CIT(A)-II Has erred in failed to appreciate the fact that ACIT-3(1) has received the case record after the centralization order of CCIT, Indore dated 31-08-2004, whereas in the case record the U/S. 158bd was issued by the then jurisdictional assessing officer of the assessee as well as of the entities searched.
5.On the fact and circumstances of the case, the Ld. CIT(A)-II, Indore has erred in holding so when in a recent decision of Hon'ble Chhatisgarh High Court cited as 17 ITJ 446, distinguishing the decision of Hon'ble Apex Court in the case of manishMaheshwari, it was laid down that "if the Assessing 2 Sangeeta&VandanaAgarwal Officer having jurisdiction over search cases where notice u/s.
153BCis issued, issue notice u/s. 153BD, which are in a way consequential notices, there is no specific requirement of recording satisfaction and the same can be inferred from the facts and the circumstances of the case,"
6. On the fact and in the circumstances of the case, the Hon'ble. CIT(A)-II Has erred by ignoring the definition of "Assessing Officer" as per section 2(7A) wherein the Assistant Director of Income Tax may also be treated as "Assessing Officer" as per section 158BD, hence , the satisfaction recorded by the Assistant Director of Income Tax may also be treated as satisfaction recorded as per section 158BD."
2. Briefly stated facts are that thesearch and seizure operation was carried out u/s 132 of the Income Tax Act 1961,(hereinafter called as 'the Act') on the residential as well as business premises of Mahesh Niranjan Group of Indore. The premises of the assessee were also covered by that search operation. Subsequently, notice u/s 158BD was issued and served upon the assessee. The Assessing Officer after considering the submissions and material on record made assessment u/s 158BD read with section 143(3) of the Act. Thereby,the Assessing officer made addition of Rs. 68,44,441/- on substantive basis and Rs.53,42,305/- on protective basis for the block period.
3. Aggrieved by this, the assessee preferred an appeal before the Ld. CIT(A) who after considering the submissionsannulled the assessment on the ground that there was no satisfaction note recorded by the AO.
4. Now the Revenue is in further appeal before the Tribunal.
3Sangeeta&VandanaAgarwal
5. Apropos Ground Nos. 1 to 6 the Ld. DR supported the orders of the authorities below and submitted that the satisfaction recorded by the assessee, Director of Income tax may be treated as a satisfaction recorded by the AO.
6. On the contrary Ld. AR submitted that the issue is covered by the decision of Coordinate Bench in IT(SS)A No.83/Ind/2010 in the case of ACIT vs. Smt. KamalaAgrawal Indore. He submitted that there is not satisfaction noted by the AO, therefore, the entire proceedings have been vitiated.
7. We have heard rival submissions and perused the relevant material on record. Under the identical facts the coordinate bench in IT(SS) A No.83/In/2010 has observed as under:
"3. We have considered the rival submission and perused the material available on file. Before us, the finding recorded by the learned Commissioner of Income Tax (Appeals) was not controverted by the learned Senior DR. We, therefore, do not find any infirmity in the order of the learned Commissioner of Income Tax (Appeals) in annulling the assessment in the absence of satisfaction recorded by the Assessing Officer. Finally, the appeal of the revenue is having no merit, therefore, dismissed."
8. Admittedly, the assessment is annulled on the basis that there was not satisfaction noted before us also revenue has not produced any satisfaction note recorded by the AO. Since the satisfaction noted by the AO is sine qua none for making assessment u/s 158BD. In the absence of the same we do not see any infirmity in the order of Ld. CIT(A) same is hereby affirmed. Thus, grounds raised by the Revenue are dismissed.
4Sangeeta&VandanaAgarwal
9. As a result, appeal of the Revenue is dismissed.
Now we take up IT(SS) A No.64/Ind/2013 The Revenue has raised following ground of appeal:
"On the facts & in law and in the circumstances of the case, the Ld. CIT (A) has erred in:
1.On the facts and circumstances of the case, the Ld. CIT (A)-II has erred in annulling the order passed by the Assessing Officer.
2.On the fact and circumstances of the case, the Ld. CIT(A)-II Has erred in relying upon the Hon'ble Supreme Court decision in Manish Maheshwari case without appreciating the fact that the facts in the instant case are completely different from the facts in Manish Maheshwari case.
3. On the fact and circumstances of the case, the Ld. CIT(A)-II Has erred in not appreciating the facts that the jurisdictional officer ACIT- 1(1) issued the notice u/s. 158BD on the basis of implicit satisfaction gathered from the seized material of the entities searched who were his assessee.
4. On the fact and circumstances of the case, the Ld. CIT(A)-II Has erred in failed to appreciate the fact that ACIT-3(1) has received the case record after the centralization order of CCIT, Indore dated 31-08-2004, whereas in the case record the U/S. 158bd was issued by the then jurisdictional assessing officer of the assessee as well as of the entities searched.
5. On the fact and circumstances of the case, the Ld. CIT(A)-II, Indore has erred in holding so when in a recent decision of Hon'ble Chhatisgarh High Court cited as 17 ITJ 446, distinguishing the decision of Hon'ble Apex Court in the case of manishMaheshwari, it was laid down that "if the Assessing Officer having jurisdiction over search cases where notice u/s.
153BCis issued, issue notice u/s. 153BD, which are in a way consequential notices, there is no specific requirement of 5 Sangeeta&VandanaAgarwal recording satisfaction and the same can be inferred from the facts and the circumstances of the case,"
6. On the fact and in the circumstances of the case, the Hon'ble. CIT(A)-II Has erred by ignoring the definition of "Assessing Officer" as per section 2(7A) wherein the Assistant Director of Income Tax may also be treated as "Assessing Officer" as per section 158BD, hence , the satisfaction recorded by the Assistant Director of Income Tax may also be treated as satisfaction recorded as per section 158BD."
10. The arguments in this appeal are identical as IT(SS)A No.63/Ind/2013.There is no change in facts and circumstances, therefore, following our decision in IT(SS)A No.63/Ind/2013, we decide the issues against the Revenue in this appeal too, wherein we have decided the issue against the assesseeby observing as under:
"6.On the contrary Ld. AR submitted that the issue is covered by the decision of Coordinate Bench in IT(SS) A No.83/Ind/2010 in the case of ACIT vs. Smt. Kamala Agrawal Indore. He submitted that there is not satisfaction noted by the AO, therefore, the entire proceedings have been vitiated.
7. We have heard rival submissions and perused the relevant material on record. Under the identical facts the coordinate bench in IT(SS) A No.83/In/2010 has observed as under:
"3. We have considered the rival submission and perused the material available on file. Before us, the finding recorded by the learned Commissioner of Income Tax (Appeals) was not controverted by the learned Senior DR. We, therefore, do not find any infirmity in the order of the learned Commissioner of Income Tax (Appeals) in annulling the assessment in the absence of satisfaction recorded by the Assessing Officer.6
Sangeeta&VandanaAgarwal Finally, the appeal of the revenue is having no merit, therefore, dismissed."
8. Admittedly, the assessment is annulled on the basis that there was not satisfaction noted before us also revenue has not produced any satisfaction noted by the AO. Since the satisfaction noted by the AO is sine qua none for making assessment u/s 158BD. In the absence of the same we do not see any infirmity in the order of Ld. CIT(A) same is hereby dismissed. Thus, grounds raised by the Revenue are dismissed.
9. As a result, appeal of the Revenue is dismissed."
Thus, grounds raised in this appeal are dismissed.
11. In the result, Bothappeals of the Revenue are dismissed. Order was pronounced in the open court on 10.01.2018.
Sd/- Sd/-
(MANISH BORAD) (KUL BHARAT)
लेखा सद य/ACCOUNTANT MEMBER या यक सद य / JUDICIALMEMBER
Indore; दनांक Dated : 10/ 01/2018
Patel, P.S/. न.स.
Copy to: Assessee/AO/Pr. CIT/ CIT (A)/ITAT (DR)/Guard file.
By order Private Secretary/DDO, Indore 7