Income Tax Appellate Tribunal - Bangalore
M/S Oriental Exports, vs Assessee on 5 August, 2016
IN THE INCOME TAX APPELLATE TRIBUNAL
"B" BENCH : BANGALORE
BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER
AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER
ITA Nos.46 & 47/Bang/2014
Assessment years : 2007-08 & 2008-09
M/s. Oriental Exports, Vs. The Assistant Commissioner of
No.21, Rohini Complex, Income Tax,
Harsha Mahal Road, Central Circle 1(2),
Hassan. Bangalore.
PAN: AAAFO 9768R
APPELLANT RESPONDENT
Appellant by : None
Respondent by : Ms. Neera Malhotra, CIT(DR)
Date of hearing : 27.07.2016
Date of Pronouncement : 05.08.2016
ORDER
Per Sunil Kumar Yadav, Judicial Member
These appeals are preferred by the assessee against the common order dated 07.10.2013 of the CIT(Appeals)-VI, Bangalore for the assessment years 2004-05 & 2007-08 on the following common grounds.
For the sake of reference, the grounds raised in ITA No.46/Bang/2014 are extracted hereunder:-
ITA Nos.46 & 47/Bang/2014 Page 2 of 5 "1. The order of the learned authorities below in so far as it is against the Appellant is opposed to law, equity, weight of evidence, probabilities and the facts and circumstances in the Appellant's case.
2. The appellant denies itself liable to be assessed under section 153A r.w.s. 143[3] of the Act under the impugned order on the ground that:-
i. The search initiated in the case of the appellant is illegal and ultra vires the provisions of section 132[1][a], [b] & [c] of the Act;
ii. That the search is conducted not on the basis of any prior information or material inducing any belief but purely on the suspicion and therefore, the action under section 132[2] is bad in law [224 ITR 19 [SC] ] and consequent assessment under section 153A is null and void-ab-inito on the parity of the ratio of the decision of the Hon'ble Apex Court in the case of Ajith Jain, reported in 260 ITR 80.
iii. The learned authorities below has not discharged the burden, of proving that there is a valid initiation of search under section 132[1][a], [b] & [c] of the Act, its execution and its completion in accordance with law to render the proceedings valid and to' assume jurisdiction to make an assessment under section 153A of the Act.
3. The learned assessing officer failed to appreciate that a valid search is a sine qua non for making a valid assessment under section 153A of the Act on the parity of the ratio of the decision of the Hon'ble Apex Court in the case of Ajit Jain, reported in 260 ITR 80 and also reliance is placed on the decision of the Hon'ble Karnataka High Court in the case of C. Ramaiah Reddy Vs. DCIT, reported in 339 ITR 210.
4. Thus the order of assessment passed by the learned assessing officer is bad in law as the mandatory conditions to invoke the jurisdiction u/s. 153A of the Income-tax Act, 1961 did not exist or having not been complied with and consequently the assessment made is bad in law for want of requisite jurisdiction.
ITA Nos.46 & 47/Bang/2014 Page 3 of 5
5. The additions made by the learned authorities below in the order of assessment passed under section 153A r.w.s. 143[3] of the Act are not based on the materials found during the course of search proceedings and hence the addition made requires to be deleted under the facts and circumstances of the case.
6. Without prejudice the appellant denies itself liable to be assessed on a total income of Rs. 27,07,140/- as determined by the learned authorities below as against the income reported of Rs. 7,07,140/- by the appellant, under the facts and circumstances of the case.
7. The learned CIT[A] is not justified in law in confirming the addition of Rs.20,00,000/- made by the learned assessing officer as unaccounted receipts under the provisions of section 69A of the Act under the facts and circumstances of the case.
8. The learned CIT[A] failed to appreciate the fact that the appellant has not received any additional money of Rs.20,00,000/- from M/s. ANS Granites, Salem issued from the account of M/s. ICICI Bank, as per the statement alleged to be obtained from M/s. ANS Granites under the facts and circumstances of the case.
9. Without prejudice the learned authorities below are not justified in law in not giving the appellant an opportunity to cross examine M/s. ANS Granites, Salem which is against the principles of natural justice.
10. The learned CIT[A] failed to appreciate the fact that the learned assessing officer ought not to have relied upon an unsigned statement issued by M/s. ANS Granites which do not have any credential or evidentiary value under the facts and circumstances of the case.
11. Without prejudice to the right to seek waiver as per the parity of reasoning of the decision of the Hon'ble Apex Court in the case of Karanvir Singh 349 ITR 692, the Appellant denies itself liable to be charged to interest under section 234 A, 234B & 234D of the Income Tax Act under the facts and circumstances of the case. Further the levy of interest under section 234A. 234B & 234D of the Act is also bad in law as the period, rate, quantum and method of calculation adopted on which interest is levied are all not discernable and are wrong on the facts of the case.
ITA Nos.46 & 47/Bang/2014 Page 4 of 5
12. The Appellant craves leave to add, alter, substitute, amend or delete any or all of the grounds of appeal urged above.
13. For the above and other grounds to be urged during the hearing of the appeal the Appellant prays that the appeal be allowed in the interest of equity and justice."
2. These appeals were listed for hearing on 27.07.2016, but none appeared on behalf of the assessee, despite service of notice of hearing.
Since none appeared on behalf of the assessee, we have no other option, except to hear the appeals ex parte, qua the assessee.
3. We have carefully examined the orders of the CIT(Appeals) on all the grounds raised before me and we find that the CIT(Appeals) has adjudicated all the grounds in detail in his order. Since no defect has been pointed out in the order of the CIT(Appeals), we confirm the same.
4. In the result, the appeals by the assessee are dismissed.
Pronounced in the open court on this 5th day of August, 2016.
Sd/- Sd/-
( A.K. GARODIA ) (SUNIL KUMAR YADAV )
Accountant Member Judicial Member
Bangalore,
Dated, the 5th August, 2016.
/D S/
ITA Nos.46 & 47/Bang/2014
Page 5 of 5
Copy to:
1. Appellant
2. Respondent
3. CIT
4. CIT(A)
5. DR, ITAT, Bangalore.
6. Guard file
By order
Assistant Registrar,
ITAT, Bangalore.