Income Tax Appellate Tribunal - Pune
Manoharlal Bhuralal Sharma, Jalgaon vs Department Of Income Tax on 13 January, 2016
आयकर अपील
य अ धकरण "ए" यायपीठ पण
ु े म ।
IN THE INCOME TAX APPELLATE TRIBUNAL "A" BENCH, PUNE
ी आर. के. पांडा, लेखा सद य, एवं ी "वकास अव थी, या$यक सद य के सम% ।
BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM
"व"वध आवेदन सं. / MA No. 128/PN/2010
(Arising out of ITA No. 360/PN/2004)
Block Period: 01-04-1988 to 09-01-1999
Assistant Commissioner of Income Tax,
Circle - 2(1), Jalgaon
.......अपीलाथ / Appellant
बनाम / V/s.
Shri Manoharlal Bhuralal Sharma,
Sadhana Bhawan, Sharma Geen,
Burhanpur Road, A/p. & Tal.-Raver,
Distt.-Jalgaon-425508
PAN : ACHPS6918G
......
यथ / Respondent
Assessee by : Shri Sunil Pathak
Revenue by : Shri Dheeraj Kumar Jain
सन
ु वाई क तार ख / Date of Hearing : 08-01-2016
घोषणा क तार ख / Date of Pronouncement : 13-01-2016
आदे श / ORDER
PER VIKAS AWASTHY, JM :
The Miscellaneous Application has been filed by the Revenue u/s. 254(2) of the Income Tax Act, 1961 (hereinafter referred to as "the Act") seeking rectification of the order of Tribunal dated 30-10-2009. 2 MA No. 128/PN/2010
2. The assessee had filed appeal against the order of Commissioner of Income Tax (Appeals)-I, Aurangabad dated 30-01-2004 passed u/s. 158 BC r.w.s. 143(3) of the Act. The Tribunal vide order dated 30-10-2009 allowed the appeal of the assessee with the following observations:
"10. Finally placing reliance on Plastica Enterprises - 23 DTR 333 (Bom), wherein a subsequent panchanama was prepared to inspect the seal whether placed in order, however found intact; that panchanama was not considered by the Hon'ble Court for the purpose of calculation of period of limitation, we hereby hold that the search action had completed/concluded on 11/1/99 when the authorized officer has made a remark that the search action had concluded. There was no logic or rationale to extend the prohibitory order for a locker which had no contents and nothing was found in the said locker. The Revenue has not demonstrated the necessity or rationale of further order u/s.132(3) of IT.
Act, therefore, those subsequent actions must not be taken into account for the purpose of calculation of the period of completion of assessment. In the light of the detailed discussion and the case laws cited we hereby uphold the grievance of the assessee and allow the ground. With the result the assessment in question is quashed."
3. Shri Dheeraj Kumar Jain representing the Department submitted that the Tribunal has not fully appreciated the facts of the case. The Tribunal in the order has held that the locker was first operated on 09-01-1999 and the same was found empty. Therefore, there was no justification in placing the prohibitory order u/s. 132(3) of the Act. However, the fact is that the locker key of locker no. 21, Central Bank of India, Raver Branch, Distt.-Jalgaon was not available, the Authorized Officer was compelled to place the prohibitory order in compliance to Warrant of Authorization dated 09-01-1999. The locker was later broke open on 08-02-1999 in the presence of the assessee and other 3 MA No. 128/PN/2010 witnesses. However, nothing was found in the locker. The Panchanama was accordingly prepared on 08-02-1999 and the same was placed on record before the Tribunal. However, the said Panchanama was not taken into consideration while passing the order. The Tribunal has allowed the appeal of the assessee on the ground that the last Panchanama was drawn on 11-01-1999 and accordingly the search action had concluded on 11-01-1999. The appeal of the assessee was allowed for technical reasons. The ld. DR also placed on record a copy of the statement of facts filed by the assessee before the Commissioner of Income Tax (Appeals) to show that the assessee had admitted the fact that the locker of the Central Bank of India, Raver Branch, Jalgaon was opened on 08-02-1999. The ld. DR prayed for recalling the order of Tribunal dated 30-10-2009 as there was mistake apparent from the record in the order of Tribunal.
4. On the other hand Shri Sunil Pathak appearing on behalf of the assessee submitted that the order of Tribunal is justified and well reasoned. There is no error in the order dated 30-10-2009 passed by the Tribunal. The ld. AR submitted that the last Panchanama was drawn on 11-01-1999 and accordingly search had concluded on the same day. The Tribunal after considering all the Panchanamas placed on record by the Department had given a categoric finding that the date of locker opening on 08-02-1999 and the Panchanama drawn on the said date is only an attempt to extend the time of search. Once, nothing was found in the locker when it was opened on 11-01-1999 there was no point in passing the prohibitory order and again opening the locker on 08-02-1999. The ld. AR further submitted that the 4 MA No. 128/PN/2010 Panchanama dated 11-01-1999 does not mention that the key of the locker is not available. The Revenue is trying to improve the case by stating that locker was opened for the first time on 08-02-1999. In Miscellaneous Application filed u/s. 254(2), only error apparent from records can be rectified. Fresh documents cannot be considered by the Tribunal at this stage. In support of his submissions the ld. AR placed reliance on the decision of Hon'ble Calcutta High Court in the case of Shew Paper Exchange Vs. Income Tax Officer reported as 93 ITR 186 (Cal.) and Commissioner of Income Tax Vs. Ballabh Prasad Agarwalla reported as 233 ITR 354. The ld. AR finally submitted that the Tribunal in paras 6, 8 and 10 of the order has already dealt with the contentions of the Revenue and after considering all the documents on record including Panchanama dated 08-02-1999 has accepted the appeal of the assessee. The ld. AR prayed for dismissing the Miscellaneous Application seeking rectification of order filed by the Revenue.
5. We have heard the submissions made by the representatives of rival sides. The Miscellaneous Application has been filed by the Department only on the ground that the Tribunal has failed to consider the fact that the locker no. 21 at Central Bank of India, Raver Branch was opened on 08-02-1999 and this fact has not been considered by the Tribunal while passing order dated 30-10-2009. The contention of the Department is that the Tribunal has allowed the appeal of the assessee only on technical ground without considering the complete facts. After perusal of the order of the Tribunal and the documents on record we find that there is no error as alleged by the Department in the Miscellaneous Application. The Tribunal at the time of passing of 5 MA No. 128/PN/2010 the order considered all the documents that have been placed on record by the Department. A copy of Panchanama filed by the Department at page 7 of the paper book clearly shows that on 11-01-1999 the locker no. 21, Central Bank of India, Raver Branch was searched and the recovery memo shows that nothing was recovered. The preliminary search report u/s. 132 of the Act dated 11-01-1999 at page 8 of the paper book shows that in the Remarks column no. 9 the following observations have been made by the Officer-in-charge:
"The Locker No. 21 of Central Bank of India Raver, of Shri Manoharlal B. Sharma of Smt. Chamabri M. Sharma, is sealed. The Action is temporarily concluded."
6. Nothing has been mentioned either in the Panchanama or aforesaid report that the key of the locker was not made available or the locker was broke open. The theory of 'lost key' of locker has been first time pleaded by the department in the present proceedings. The Tribunal in paras 6 and 8 of the order, sought to be rectified has discussed this issue in detail. The Tribunal has also considered the subsequent Panchanama and preliminary report dated 08-02-1999. The Tribunal after placing reliance on the decision of Hon'ble Bombay High Court in the case of Commissioner of Income Tax Vs. Plastica Enterprises reported as 23 DTR 333 (Bom) has quashed the assessment.
7. We are of the considered view that the present Miscellaneous Application is an attempt by the Department to seek review of the order earlier passed by the Tribunal, which is not permissible under the 6 MA No. 128/PN/2010 provisions of the Income Tax Act. We do not find any mistake, much less the apparent mistake as alleged by the Department in the order of Tribunal dated 30-10-2009. The Miscellaneous Application filed by the Revenue is accordingly dismissed being devoid of any merit.
Order pronounced on Wednesday, the 13th day of January, 2016.
Sd/- Sd/-
(आर. के. पांडा / R.K. Panda) (!वकास अव"थी / Vikas Awasthy)
लेखा सद"य / ACCOUNTANT MEMBER $या%यक सद"य / JUDICIAL MEMBER
पण
ु े / Pune; &दनांक / Dated : 13th January, 2016
RK
आदे श क) *$त,ल"प अ-े"षत / Copy of the Order forwarded to :
1. अपीलाथ / The Appellant.
2. यथ / The Respondent.
3. आयकर आयु'त (अपील) / The CIT(A)-I, Aurangabad
4. आयकर आयु'त / The CIT-II, Nashik
5. !वभागीय %त%न,ध, आयकर अपील य अ,धकरण, "ए" ब0च, पुणे / DR, ITAT, "A" Bench, Pune.
6. गाड2 फ़ाइल / Guard File.
//स या!पत %त // True Copy// आदे शानुसार / BY ORDER, %नजी स,चव / Private Secretary, आयकर अपील य अ,धकरण, पुणे / ITAT, Pune