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TMI Blog2021 (4) TMI 685X X X X Extracts X X X X X X X X Extracts X X X X ..... 19/Alld/2009 Shri.Vijay Pal Rao, Judicial Member And Shri Ramit Kochar, Accountant Member For the Assessee : None For the Revenue : Ms. Namita S. Pandey, CIT-DR ORDER PER SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER: These are batch of fifteen Miscellaneous Applications(MA) , out of which twelve MA's bearing No. 05-16/Alld/2012 are filed by Revenue , while three MA's bearing Nos. 48-50/Alld/2016 are filed by assessee namely Mr. Siya Ram Gupta. First, we will take up Revenue's MA No. 09/Alld/2012.This Miscellaneous application (MA) bearing number 09/Alld./2012 arising out of ITA no. 325/Alld/2008 for assessment year (ay) : 2003-04 was filed by Revenue with Income Tax Appellate Tribunal, Allahabad( herein after called " the tribunal" ) u/s 254(2) of the Income-tax Act,1961 (hereinafter called "the Act") , on 11.06.2012 , seeking to rectify an mistake apparent from record which as per Revenue has crept in the appellate order dated 17.03.2009 passed by tribunal. This Misc. Application was filed within the time as was then available during relevant time as provided under Section 254(2) of the Act , before its amendment by Finance Act, 2016 w.e.f. 01.06.2016. The main grievance of the Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT/CC/Alld/06-07 dated 21.02.2008 for the Asst. Year 2003-04, the entire income of the assessee is assessed on a substantive basis in the hands of Shri Siya Ram Gupta therefore, the addition on protective basis does not stand any more. In result, the appeal is dismissed." 1.3 Briefly stated that income of the assessee for ay: 2003-04 was assessed on protective basis to the tune of Rs. 70,000/- by AO , vide assessment order dated 29.03.2006 passed u/s 143(3) of the 1961 Act , as against returned income of Rs. 60,000/-. The additions on the substantive basis were made by AO in the hands of Shri Siya Ram Gupta , vide assessment order dated 29.03.2006 passed by AO u/s 143(3) of the 1961 Act. The said Shri Siya Ram Gupta filed first appeal with ld. CIT(A) against the assessment order dated 29.03.2006 passed by AO u/s 143(3) of the 1961 Act, which appeal stood dismissed by ld. CIT(A) vide appellate order dated 21.02.2008 in Appeal No. 221/DCIT/CC/Alld/06-07 , by holding as under: "3. The third and fourth grounds of appeal is against the inclusion of income of the following members in the hands of the appellant: 1. Km. Sumedha Gupta, Individual Rs. 76,110/- 2. Late Satya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing , money lending and sarraffa and during the course of search and seizure operation nothing could be found which may say that they have their separate accounts, separate stock and which may indicate that they were separately carrying out their business as discussed by them, Km. Sumedha Gupta has disclosed her income from knitting and sewing but no evidence for the same could be found during the course of search and seizure operation that she was separately carrying out knitting and sewing. During the course of regular assessment proceedings in the case of Kumari Sumedha Gupta she has submitted that she has sold out machines etc employed for her business therefore , no evidence regarding that could be found during the course of search and seizure operation. In the regular assessment proceedings fir A.Y. 2001-02 in all the cases the assessee has submitted that all the undisclosed income for the block period over and above the returned income of above entities should be taxes in his hands and he has offered Rs. 20,00,000/- as undisclosed income in the block assessment. It was required from the assessee to explain as to why it should not be considered that the business of sarraf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ram Gupta, has infact allowed the appeal of the assessee as the additions stood deleted and the tribunal was pleased to reverse the final order of ld. CIT(A), wherein the ld. CIT(A) on its part has dismissed the appeal of the assessee. The decision of ld. CIT(A) and also of the tribunal in the case of the assessee is already reproduced by us on preceding para's of this order. We have heard ld. CIT-DR in details through video conferencing through virtual court who drew our attention to various orders passed by authorities, while none appeared for the assessee when this appeal was called for hearing before the Bench. In order to adjudicate the concerns raise in this MA by Revenue, it will be relevant at this stage to reproduce the grounds of appeal raised by assessee before learned CIT(A), which are reproduced hereunder: 1. That the learned Assessing Officer was wrong in law & on facts in making the assessment on protective basis & enhancing the returned income by Rs. 10,000/-. 2. That the learned A.O. has failed to appreciate that the assessee is an old income tax assessee and upto A.Y. 2001-02, the income shown was accepted as belonging to the assessee and only in A.Y.2002-03, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b) Vide Ground of appeal No. 2 raised by assesse before ld. CIT(A), the assessee is claiming that income needs to be assessed in the hands of the assesse as was done in earlier years upto ay:2001-02. This stand was implicitly rejected by ld. CIT(A) while affirming the addition in the hands of Mr. Siya Ram Gupta on substantive basis. Thus, the ld. CIT(A) was right in impliedly dismissing this ground of appeal raised by the assessee, although he has not expressly dismissed the grounds separately. c) Vide Ground of appeal no. 3 raised by assesse before ld. CIT(A), the assesse is claiming that the inclusion of the income so assessed for ay: 2002-03 was excluded in the appeal of Shri Siya Ram Gupta against Block Assessment. This ground is not relevant so far as this appeal of the assesse is concerned as no income is finally held to be assessed in the hands of the assesse and more-over presently the ld. CIT(A) was seized of the appeal against assessment framed u/s 143(3) of the 1961 Act and not appeal against Block Assessment. Thus, the ld. CIT(A) was right in impliedly dismissing this ground of appeal raised by the assessee, although he has not expressly dismissed the grounds separa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but dependent on the final outcome of the substantive assessment. Thus, to that extent , order of the tribunal stand modified and MA filed by Revenue is allowed .We order accordingly. 1.7 . In the result, M.A. No. 09/Alld/2012 arising out of ITA No. 325/Alld/2008 filed by Revenue for assessment year 2003-04, is allowed. MA No. 05/Alld./2012 arising out of ITA No. 319/Alld/2008 for ay: 2003-04- Shri Siya Ram Gupta L/H of Shri Satya Narain Gupta 2. Since facts are identical in this MA, our decision in MA no. 09/Alld/2012 shall apply mutatis mutandis to the MA No. 05/Alld/2012 arising out of ITA No. 319/Alld/2008 for ay: 2003-04. We order accordingly. 2.2 . In the result, M.A. No. 05/Alld/2012 arising out of ITA No. 319/Alld/2008 filed by Revenue for assessment year 2003-04, is allowed. MA No. 06/Alld./2012 arising out of ITA No. 320/Alld/2008 for ay: 2004-05- Shri Siya Ram Gupta L/H of Shri Satya Narain Gupta 3. Since facts are identical in this MA, our decision in MA no. 09/Alld/2012 shall apply mutatis mutandis to the MA No. 06/Alld/2012 arising out of ITA No. 320/Alld/2008 for ay: 2004-05. We order accordingly. 3.2 . In the result, M.A. No. 06/Alld/2012 arising out of ITA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evi 9. Since facts are identical in this MA, our decision in MA no. 09/Alld/2012 shall apply mutatis mutandis to the MA No. 13/Alld/2012 arising out of ITA No. 323/Alld/2008 for ay: 2003-04. We order accordingly. 9.2 . In the result, M.A. No. 13/Alld/2012 arising out of ITA No. 323/Alld/2008 filed by Revenue for assessment year 2003-04, is allowed. MA No. 14/Alld./2012 arising out of ITA No. 324/Alld/2008 for ay: 2004-05- Mrs. Munni Devi 10. Since facts are identical in this MA, our decision in MA no. 09/Alld/2012 shall apply mutatis mutandis to the MA No. 14/Alld/2012 arising out of ITA No. 324/Alld/2008 for ay: 2004-05. We order accordingly. 10.2 . In the result, M.A. No. 14/Alld/2012 arising out of ITA No. 324/Alld/2008 filed by Revenue for assessment year 2004-05, is allowed. MA No. 15/Alld./2012 arising out of ITA No. 327/Alld/2008 for ay: 2003-04- M/s Satya Narain Gupta(HUF) 11. Since facts are identical in this MA, our decision in MA no. 09/Alld/2012 shall apply mutatis mutandis to the MA No. 15/Alld/2012 arising out of ITA No. 327/Alld/2008 for ay: 2003-04. We order accordingly. 11.2 . In the result, M.A. No. 15/Alld/2012 arising out of ITA No. 327/Alld/2008 filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the assessee . The tribunal while disposing of the appeal of the assessee for ay: 2003-04 to 2005-06, vide orders dated 21.04.2016 has rejected the contention of the assessee that the tribunal vide orders dated 17.03.2009 and 31.08.2009 has held that the income of the family members are to be assessed in their respective hands and not in the hands of the assessee. In-fact the tribunal while passing orders in the hands of respective family members/entities has held that their income has to be assessed in the hands of the assessee namely Mr. Siya Ram Gupta. The said order dated 17.03.2009 by tribunal in the case of respective family members/entities is reproduced in the preceding para's of this order. The decision of tribunal (SMC)dated 21.04.2016 in the case of the assessee is reproduced hereunder: "3. I heard the rival submissions and carefully considered the same alongwith orders of the tax authorities below. I have also gone through the order of this Tribunal dated 31.08.2009 and 17.03.2009. I noted that the Tribunal vide its order dated 31.08.2009 in ITA Nos. 20 to 24 under para-5 held as under: " On consideration of the facts , I am of the view that the ld. CIT(A) was not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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