9911796707
TMI Blog2012 (8) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... MUKUL Kr. SHRAWAT, JUDICIAL MEMBER : This is an appeal filed by the Revenue arising from the order of Learned CIT(Appeals)-II, Surat dated 12.11.2009 and the Revenue s only ground of appeal is as follows:- 1) On the facts and circumstance of the case and in law, the Ld.CIT(A) has erred in deleting the addition made by the A.O. of Rs.4,40,000 on account of unaccounted on-money paid by the assessee for purchase of flat at Chandan Park Society from Ohm Organizers and Ohm Developers holding that there was inordinate delay in inflation of action u/s.158BD and thereby the proceedings initiated u/s.158BD is invalid. 2. The assessee is in cross objection by raising following grounds:- [1] On the facts and in the circumstances of the case as well as law on the subject, the learned CIT(A)-II, Surat has rightly deleted the addition of Rs.4,40,000/- made by the AO treating that there was inordinate delay in initiating the proceedings u/s.158BD and therefore the block assessment framed is invalid. [2] On the facts and in the circumstances of the case as well as law on the subject, the assessment framed u/s.158BC r.w.s. 158BD of the Act, is bad in law and without jurisdiction on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the assessment of M/s.Ohm Developers was completed earlier and the notices u/s.158BD were late by 5 years. 4.1. From the notings on page-12 of Khatavahi marked as BS-4, the Assessing Officer observed that the Assessee had paid a sum of Rs.4,40,000 as on-money towards the purchase of the said flat at Chandan Park. On the other hand, Shri Ketan O.Der a partner of M/s.Ohm Developers had stated on oath, that the khatavahi BS-4 contained the accounts of flat/shop owners of Chandan Park. It also contained the details of date-wise payments received through cheques as well as in cash, which was the on-money. 4.2. When the matter was carried before the first appellate authority, the ld.CIT(A) held as under:- Decision 6. I have carefully considered both the positions. In all the cases of the investors with M/s.Ohm Developers and Ohm Organisers whose appeals have been decided by me so far, I have taken the view that there is o time limit prescribed for proceedings to be initiated u/s.158BD of the IT Act. While taking such a view, I have respectfully disagreed with the view taken by the Special Bench of the ITAT, Delhi in the case of Manoj Aggarwal (supra) on the basis of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the AO u/s.158BD was inordinately delayed and therefore was invalid. Consequently, the addition of the sum of Rs.5,06,000 made by the AO will stand deleted. 4.3. Since the proceedings were quashed, hence the Revenue is now before us. 5. From the side of the respondent, following orders were relied upon:- 1. IT(SS)A No.10 28/Ahd/2008 Block Period 90-91 to 1999-00 Others ITAT D Bench Ahmedabad order in the case of Vimal Vadilal Shah vs. DCIT order dated 21.5.2010 2.IT(SS)A No.65/Ahd/2007 Block Period from 90-91 to 1999-2000 ITAT C Bench Ahmedabad order in the case of Balvantrai V.Mehta vs. ACIT order dated 16.12.2010 3. MA No.155/Ahd/2008 (in ITSS A No.81/Ahd/2007) block period 1.4.89 to 29.10.99 ITAT D Bench Ahmedabad order in the case of Amitbhai B.Sojitra vs. ACIT order dated 7.1.2008 4. IT(SS)A No.95 96/Ahd/2007 Block assessment period from 30.10.89 to 29.10.99 ITAT D Bench Ahmedbad order in the case of Jayesh T.Desai vs. ACIT order dated 28.05.2010 5. IT(SS)A No.66/Ahd/2007 72/Ahd/2007 block period Assessment Year 90-91 to 99-2000 upto 29.10.99 ITAT D Bench Ahmedabad order in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se decisions we hold that the block assessment framed in case of all the above assessee are not legally valid and therefore are quashed for the reason that notices u/s 158BD of the Act were issued in these cases long after completion of assessment in the case of person searched i.e. Ohm Developers." 7. We may also point out that recently the Hon'ble Punjab Haryana High Court in its unreported judgment in ITA No. 379 of 2010 dated 25-08-2010 in the case of CIT-I, Ludhiana vs M/s Parveen Fabrics Pvt Ltd dismissed the appeal filed by the department by passing the following order: "1. This appeal has been preferred by the revenue under Section 260A of the Income Tax Act, 1961 (in short "the Act") against the order of the Income Tax Appellate Tribunal, Chandigarh Bench (B), Chandigarh (Hereinafter referred to as "the Tribunal") passed in I.T.(SS)A. No19/CHAND/2009 dated 127.8.2009 for the block period 01.04..1996 to 05.02.2003, proposing to raise the following substantial question of law:- "Whether on the facts and in law, the Hon'ble Income Tax Appellate Tribunal was justified in holding the recording of satisfaction u/s 158BD by the Assessing Officer of the person searched and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t shall lead to anomaly and would be arbitrary and unreasonable. It could not be read in the provision that where block assessment under Section 158BC of the Act in the case of an assessee against whom action under Section 132 or 132A of the Act had been carried out is finalized, Revenue can take action at any time in the absence of any specific limitation prescribed in the statute. A construction which leads to such an anomaly should be avoided." 5. The view taken by the Tribunal is, thus, in accordance with the view taken by this court. NO substantial question of law arises. 6. The appeal is dismissed." 8. Considering the facts of the case in the light of the above decisions, we do not find any justification for initiation of block assessment proceedings u/s 158BD of the IT. Act against the assessee after long gap of completion of the assessment in the case of persons searched, viz. M/s Ohm Developers. We accordingly set aside the order of authorities below and quash the same. As a result, grounds 1 2 of the appeal of the assessee are allowed . 6. Following the aforesaid decision(s) of the Tribunal, we dismiss the ground raised by the Revenue. 7. In the result, Revenu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
