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06-09-2019, Rajesh Madanlal Partani, Section 153A, 271B, Tribunal Pune

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1 week 1 day ago #10735 by amit
Section - 153A, 271B, 133A, 132
Order Date - 06-09-2019
Favouring - Allowed for statistical purposes
Court - Tribunal Pune
Appellant - Rajesh Madanlal Partani
Respondent - ACIT
Justice - R.S. SYAL VP & PARTHA SARATHI CHAUDHURY JM
Citation - 919Taxpundit64
Appeal No. - ITA Nos.1016 & 1017/PUN/2012
Asstt. Year - 2001-02 & 2002-03

Order

PER : R.S. SYAL

This batch of 31 appeals contains 28 quantum appeals and 3 appeals against penalty imposed u/s.271B of the Income-tax Act, 1961 (hereinafter called ‘the Act’) by different but connected assessees for the years captioned above. As some common issues are involved in these appeals, we are, therefore, proceeding to dispose them off by this consolidated order.

2. The first legal ground raised in lead appeal by Sh. Rajesh Madanlal Partani for the assessment year 2005-06 (ITA No.852/PUN/2012), which is common in almost all the quantum appeals, is against failure to issue and service notice upon the assessee u/s.143(2) of the Act within the time prescribed. On an earlier occasion, this ground was not pressed on behalf of the assessee. However, the assessee has again chosen to press this ground of appeal. The ld. Counsel submitted that notice u/s.143(2) was not issued within the stipulated period of six months before completing the assessment u/s.153A r.w.s. 143(3) of the Act. This was factually controverted by the ld. DR who submitted that the first notice u/s.143(2) was issued in time.

3. We have briefly heard the parties on this issue. The ld. AR fairly pointed out that the Third Member bench of the Mumbai Tribunal in Smt. Sumanlala Bansal vs. ACIT (TM) vide its order dt. 20.5.2015 (ITA no. 525-530/Mum/2008), following the direct judgment of the Hon’ble Delhi High Court in Ashok Chaddha vs. ITO (2011) 337 ITR 399 (Del), has held that non-issuance of notice u/s 143(2) is not a requirement for completing assessment u/s 153A. However, relying on another judgment in CIT VS. N.S. Software (Firm) (2018) 403 ITR 0259 (Delhi), the ld. AR contended that the provisions of section 143(2) apply to the proceedings u/s 153A as well, even though it was not a direct issue before the Hon’ble High Court. In view of the fact that the ld. DR contended that the first notice u/s 143(2) of the Act was, in fact, issued within the stipulated period and further that the ld. AR also evinced interest in keeping the issue alive to be taken up before the higher forums rather than extensively arguing before the Tribunal, we decide this issue against the assessee without going further deep into it. ITA Nos.850-855/PUN/2012 and 1016-17/PUN/2012 –Shri Rajesh Madanlal Partani

4. Briefly stated, the facts of the lead year 2005-06 (in ITA No.852/PUN/2012) which are mutatis mutandis similar to the other seven quantum appeals are that the assessee is a member of Partani group in which a survey was initially conducted u/s.133A of the Act on 04-07-2007, which was converted into search u/s.132 on the same day. The Partani group is engaged in doing business on commission agency and financing of auto rickshaw vehicles through personal finance as well as finance through Shree Gangadhar Nagari Sahakari Pat Sanstha. Sixteen diaries were found during the course of search and seizure containing details regarding old and new vehicles arranged by the assessee. It had further details of the commission received from each transaction, finances made to the borrowers and interest etc. Statement of the assessee was recorded on 04-07-2007. The assessee made a surrender of Rs.2.00 crore spread over certain years in his individual hands, however the same was not fully offered in the returns filed pursuant to the search. The assessee filed his return for the lead year at total income of Rs.31,55,980/- including the amount surrendered for the year at Rs.26,02,000/-, but the assessment was completed at a total income of Rs.1,63,73,720/- making additions on account of suppressed commission income of Rs.83.78,812/-; interest income of Rs.55,87,963/-; suppressed profit of Rs.14,63,000/-; and suppressed interest of Rs.3,88,967/-. The assessee appealed before the ld. CIT(A) but remained unrepresented, as a result of which this appeal and host of other appeals came to be decided ex parte qua the respective assesses. This is how, the assessee has approached the Tribunal.

5. We have heard the rival submissions and considered the relevant material on record. It is seen that the ld. CIT(A) fixed the appeal of the assessee for hearing on 14-10-2010. Adjournment was sought, which was granted for 22-11-2010. Series of adjournments were taken by the assessee as has been recorded in para 3 of the impugned order. Since the assessee could not represent himself before the ld. CIT(A), the ld. first appellate authority was left with no alternate option but to proceed with the material available on record. That is how, most of the additions came to be countenanced by the ld. CIT(A). The ld. AR contended that the assessee s father was not keeping good health during the course of relevant proceedings which prevented him from putting in appearance before the ld. CIT(A).

6. The ld. DR vehemently argued that the assessee was given proper opportunity by the ld. CIT(A) but the assessee failed to avail the same. It was thus prayed that the appeals of the assessee be dismissed. It was further pointed out by him that the assessment was getting time barred but the assessee failed to adduce the evidence in time enabling the AO to embark upon proper enquiry. It was thus prayed that the additions so made and sustained be confirmed.

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