Case Law Details
Sanjay Punamchand Kothari Vs ACIT (ITAT Pune)
ITAT Pune held that default in allotting ‘DIN and Order’ results into quashing of the impugned assessment as according to CBDT circular no. 19/2019 dated 14.08.2019 such an order ought to be treated as to have never been issued herein.
Facts- The main contention in the present matter is that neither Assessing Officer’s assessment nor his 154 rectification contains the corresponding ‘DIN & Order’ details as prescribed in CBDT’s twin circular no. 19/2019 dated 14.08.2019 and 27/2019 dated 26.09.2019.
Another issue in latter assessment year relates to ‘telescoping’ of section 69A unexplained money addition of Rs. 1,66,40,000/- made by AO which has been partly allowed to be set off in CIT(A)’s order.
Conclusion- Held that once the CBDT circular no. 19/2019 dated 14.08.2019 has clarified that such an order ought to be treated as to have never been issued herein. We conclude that the impugned assessment deserves to be quashed on this count alone. This tribunal’s order in ITA No.625 Bang 2021 in Shri H.K. Suresh vs. PCIT has already rejected the Revenue’s identical contentions that its default in allotting “DIN and Order” number in above terms could not be condoned by way of any subsequent intimation as well. We therefore quash the impugned assessment herein as well as the Assessing Officer’s section 154 rectification dated 04.01.2021 in very terms.
We reiterate that the foregoing sole seized document is totally “dumb” as there are no clear-cut entries which could suggest any payments or receipts, as the case may be involving this assessee. Faced with the situation, we accept the assessee’s pleadings as well as the main appeal ITA No.47/PUN/2021 and dismiss the Revenue’s cross appeal ITA No.59/PUN/2021 as the necessary corollary. Ordered accordingly.
FULL TEXT OF THE ORDER OF ITAT PUNE
The instant batch of four appeals pertains to one single assessee Shri Sanjay P. Kothari. Former assessment year 2017-18 herein con ins the assessee’s twin n appeals IT(SA Nos. 12/PUN/2021 and 11/PUN/2022 arising against the CIT(A), Pune- 11’s separate orders, dated 10.11.2021 and 25.01.2022, passed in case Nos. ITBA/APL/S/250/2021-22/1036818962(1) and ITBA/APL/S/250/202 1-22/1039080137(1), in proceedings u/s 154 and 143(3) r.w.s. 153A of the Income Tax Act, 1961, in short the Act’ Later assessment year 2018-19 involves assessee’s and Revenue’s cross appeals ITA Nos.47 and 59/PUN/2021 directed against the very CIT(A)’s DIN & order No. ITBA/APL/S/ 250 /2020-2 1/1029367933(1), dated 30.12.2020 in proceedings u/s 143(3) of the Act.
Heard both the parties. Case files perused.
2. It transpires during the course of hearing that the assessee’s twin appeals IT(SS)A Nos. 12/PUN/2021 and 11/PUN/2022 for former assessment year 2017-18 hardly requires us to delve deeper in the relevant factual matrix. This is for the precise reason that neither the Assessing Officer’s assessment herein dated 27.12.2019 nor his 154 rectification in both these appeals; respectively contain the corresponding “DIN & Order” details as prescribed in CBDT‟s twin circular Nos.19/2019 dated 14.08.2019 and 27/2019 dated 26.09.2019; respectively. The above former circular rather makes it explicitly clear in para 4 thereof that any communication not containing such DIN and Order number “shall be treated as invalid and shall be deemed to have never been issued” Faced with the situation, Mr. Jasnani filed the Assessing Officer’s subsequent intimation to the assessee dated 29.12.20 19 that he had duly allotted “DIN & Order” number to his assessment order dated 27.12.2019.
We find no merit in the Revenue’s instant vehement argument supporting the assessment herein as once the CBDT circular has clarified that such an order ought to be treated as to have never been issued herein (supra). We conclude that the impugned assessment deserves to be quashed on this count alone. This tribunal’s order in ITA No.625 Bang 2021 in Shri H.K. Suresh vs. PCIT has already rejected the Revenue’s identical contentions that its default in allotting “DIN and Order” number in above terms could not be condoned by way of any subsequent intimation as well. We therefore quash the impugned assessment herein as well as the Assessing Officer’s section 154 rectification dated 04.01.2021 in very terms. These assessee’s twin appeals IT(SS)A Nos.12/PUN/2021 and 11/PUN/2022 stand accepted.
3. This leaves us with the latter assessment year 2018-19 wherein both the assessee as well as the Revenue have filed their respective appeals ITA Nos.47 & 59/PUN/2021; respectively. The sole issue that arises for our apt adjudication in both these appeals is that of “telescoping’ of section 69A unexplained money addition of Rs. 1,66,40,000/- made by the Assessing Officer which has been partly allowed to be set off in CIT(A)‟s order to the extent of Rs.1,18,22,400/- vide following detailed discussion:
This leaves both the parties aggrieved to the extent indicated in their respective pleadings.
The assessee’s case before us not only seeks to delete the impugned section 69A addition of Rs. 1,66,40,000/- in entirety but also learned counsel submitted that the same is very much eligible to be set off as well; both against unaccounted cash of Rs.1,18,22,400/- as well as unaccounted jewellery of Rs.1,00,90,400/-, as per (1995) 52 ITD 412 (Pune) Kantilal & Bros. vs. ACIT and (1983) 15 Taxman 487 (Bom) CIT vs. Jawanmal Gemaji Gandhi, so as to avoid double addition.
The Revenue’s pleadings on the other hand vehemently support the Assessing Officer’s action in entirety not allowing the impugned set off.
4. We have given our thoughtful consideration for vehement rival stands. Learned departmental representative could hardly dispute that the foregoing twin judicial precedents are already in assessee’s support that such a set off could very well be granted even against jewellery items and vice-versa. This is further coupled with the clinching fact that page 41 before us is the seized material against the assessee found during the course of search on 04.11.2017. There is neither any amount mentioned therein nor the sum total thereof so as to draw any presumption of correctness of contents thereof u/s 292C of the Act.
Mr. Jasnani at this stage vehemently argued that the assessee’s search statement had admitted various amounts as per the contents of seized document. We find no merit in the Revenue’s instant argument in light of CBDT‟s twin landmark circulars dated 10.03.2003 and 18.12.2004 that a searched party’ s admissions or confessions during search or survey hardly carry any significance in the absence of any supportive evidence. We reiterate that the foregoing sole seized document is totally “dumb” as there are no clear-cut entries which could suggest any payments or receipts, as the case may be involving this assessee. Faced with the situation, we accept the assessee’s pleadings as well as the main appeal ITA No.47/PUN/2021 and dismiss the Revenue’s cross appeal ITA No.59/PUN/2021 as the necessary corollary. Ordered accordingly.
5. To sum up, these assessee’s three appeals ITA Nos.47/PUN/2021, IT(SS)A Nos.12/PUN/2021 and 11/PUN/2022 are allowed and Revenue’s cross appeal ITA No.59/PUN/2021 is dismissed in above terms. A copy of this common order be placed in the respective case files.
Order pronounced in the Open Court on 14th February, 2023.
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