Gujarat High Court
Pr. Commissioner Of Income ... vs Rsa Digi Prints....Opponent(S) on 6 September, 2017
Author: Akil Kureshi
Bench: Akil Kureshi, Biren Vaishnav
O/TAXAP/469/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX APPEAL NO. 469 of 2017
With
TAX APPEAL NO. 471 of 2017
With
TAX APPEAL NO. 504 of 2017
With
TAX APPEAL NO. 505 of 2017
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PR. COMMISSIONER OF INCOME TAX-VADODARA-1....Appellant(s)
Versus
RSA DIGI PRINTS....Opponent(s)
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Appearance:
MR KM PARIKH, ADVOCATE for the Appellant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 06/09/2017
COMMON ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. These Tax Appeals arise out of common background and concerning the same respondent assessee. For convenience, we may record facts from Tax Appeal No.469 of 2017.
2. The appeal concerns assessment year 200910. The Revenue has suggested following questions for our consideration:
"(1) Whether on the facts and in the circumstances of the case, the ITAT was right in law in allowing the appeal of the assessee without appreciating the fact that had the Page 1 of 5 HC-NIC Page 1 of 5 Created On Sun Sep 10 05:42:40 IST 2017 O/TAXAP/469/2017 ORDER search been not initiated u/s. 132 and thereafter assessment proceedings were not initiated u/s 153A r.w.s. 143(3) of the Act, the assessee would have wriggled out of the issue of unexplained cash credit of Rs.1,14,04,609/, which the AO during the assessment proceedings had found out and the same was rightly added to the total income of the assessee?
(2) Whether on the facts and in the circumstances of the case, the ITAT was right in law in allowing the appeal of the assessee referring to abatement of assessment as per second proviso of section 153A?
(3) Whether on the facts and in the circumstances of the case, the ITAT was right in law in quashing the impugned assessment pertaining to A.Y. 200910 on the ground that none of the regular assessment in these three assessment years (A.Y. 200708 to 200910) could be stated to be pending u/s.153A(1) second proviso?"
3. The assessee had filed the return of income under section 139(1) of the Income Tax Act, 1961 ('the Act' for short) on 19.09.2009. Search was carried out at the premises of the assessee on 20.01.2010. In response to the notice issued by the department for filing return under section 153A of the Act, the assessee filed such return on 10.10.2011. The Assessing Officer passed the order of assessment under section 153A of the Act on 28.11.2011. Several additions were made in such order by the Assessing Officer which became subject matter of appeal before Page 2 of 5 HC-NIC Page 2 of 5 Created On Sun Sep 10 05:42:40 IST 2017 O/TAXAP/469/2017 ORDER the Commissioner. Eventually, the issue reached the Tribunal. Before the Tribunal, the assessee raised an additional legal contention on the validity of order under section 153A of the Act on the ground that no incriminating material was found during the search with the aid of which the additions could have been made. Ignoring the objections of the department to raise the additional grounds, the Tribunal permitted the assessee to raise it on the premise that the same was a legal contention which would go to the root of the matter. The Tribunal thereupon held that there was no incriminating material found during the search with the aid of which, the Assessing Officer could have made the additions. The Tribunal relied on the decision of Delhi High Court in case of CIT vs Kabul Chawla reported in (2016) 380 ITR 573 (Delhi) and on the decisions of this Court in case of M/s. Desai Construction Pvt. Ltd. dated 20.07.2016 and Saumya Construction Pvt. Ltd. dated 14.03.2016. The Tribunal also was of the view that in three assessment years involved the assessments could not be held to be pending as per the second proviso to section 153A(1) of the Act on the ground that the time limit for Page 3 of 5 HC-NIC Page 3 of 5 Created On Sun Sep 10 05:42:40 IST 2017 O/TAXAP/469/2017 ORDER issuing notice under subsection (2) of section 43 of the Act has expired long before the search was carried out.
4. We have heard learned counsel Shri Parikh for the department. There is nothing on record to suggest that the observations of the Tribunal that no incriminating material was found during the search with the aid of which the additions could have been made was inaccurate. In that view of the matter as held by this Court and the Delhi High Court, the Tribunal was correct in quashing the assessments under section 153A(1) of the Act. In that view of the matter, we see no reason to interfere. The second subsidiary observation and conclusion of the matter with respect to the pendency of the assessment in terms of second proviso to subsection (1) of section 153A, we need not comment.
5. Tax Appeals are dismissed.
(AKIL KURESHI, J.)
(BIREN VAISHNAV, J.)
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O/TAXAP/469/2017 ORDER
ANKIT
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