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06-03-2019, German Express Shipping, Section 132(4), 132, Tribunal Mumbai

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2 weeks 1 day ago #8756 by amit
Section - 132(4), 132, 153A, 132(1)(c), 139, 147, 148, 149, 151, 153
Order Date - 06-03-2019
Favouring - Partly
Court - Tribunal Mumbai
Appellant - German Express Shipping Agency (I) P. Ltd.
Respondent - DCIT
Justice - MAHAVIR SINGH, JM & M.BALAGANESH, AM
Citation - 319Taxpundit196
Appeal No. - ITA No.4181/Mum/2016 to 4187/Mum/2016
Asstt. Year - 2006-07 TO 2012-13

Order

PER : MAHAVIR SINGH, JM

These appeals filed by assessee are directed against the order of Commissioner of Income Tax (Appeals)-54 [hereinafter referred to as the ld CITA] dated 16/04/2014 for A.Y.2006-07 in the matter of order passed u/s.143(3) r.w.s. 153A of the Income Tax Act, 1961. Since identical issues are involved in these appeals, they were heard together and are being disposed off by this consolidated order for the sake of convenience.

2. Let us first take up the appeals of the assessee in ITA Nos. 4181 to 4185/Mum/2016 for the Asst Years 2006-07 to 2010-11. With the consent of both the parties, the appeal of Asst Year 2006-07 is taken as the lead case and the decision rendered thereon would apply to Asst Years 2007-08 to 2010-11 in view of identical facts except with variance in figures.

3. The preliminary issue to be decided in this appeal is as to whether the ld CITA was justified in upholding the addition of Rs 26,29,982/- towards disallowance of expenses already reflected in the regular cash book of the assessee in the search assessment framed u/s 153A/143(3) of the Act in the absence of any incriminating material found during the course of search to that effect.

4. The brief facts of this issue is that there was a search and seizure operation conducted u/s 132 of the Act on J.M.Baxi & Co. Group on 20.3.2012. The assessee is one of the companies in the said group. Consequent to the search, notice u/s 153A of the Act was issued and for the year under consideration, the assessee filed a letter dated 3.9.2012 to treat the original return of income filed on 31.10.2006 u/s 139(1) of the Act disclosing total income of Rs 16,24,63,299/- as a return in response to notice u/s 153A of the Act dated 25.7.2012. The assessee stated that against the original return filed on 31.10.2006, an assessment u/s 143(3) of the Act was framed in the hands of the assessee for the Asst Year 2006-07 on 18.3.2008 accepting the income returned. For the Asst Years 2007- 08 to 2009-10, the assessments against the original return of income filed u/s 139(1) of the Act were completed by the revenue u/s 143(3) of the Act. For the Asst Year 2010-11, though the assessee had furnished its original return of income u/s 139(1) of the Act, the time limit for issuance of notice u/s 143(2) of the Act had expired on 30.9.2011. Hence as on the date of search on 20.3.2012, the assessments for the Asst Years 2006-07 to 2010-11 fall under the category of completed / unabated assessments and hence the income assessed originally thereon could not be disturbed unless there is any incriminating material found in the course of search relatable to such assessment year. It was argued that admittedly no incriminating materials were found for Asst years 2006-07 to 2010-11 in the course of search with regard to disallowance of certain expenses and accordingly pleaded not to disturb the originally assessed income, which is same as the returned income.

5. The brief facts as no ed in the assessment order are as under:-

“5.1. M S J M Baxi Group was founded in 1916. It is the largest Shipping Agency House in India. The company has a strong presence in all its business activities and leadership in several of the shipping support services. Currently, over 200 National and International shipping companies avail their services, The group has over 70 offices in all major and minor port cities and other big cities. The company has set up a strong marketing network via various group companies / affiliates operating across the globe. The group companies of J M Baxi have their marketing offices located at London, Dubai and Singapore. The majority of the business activities are done through these marketing channels. The group is owned by Shri Naresh J Kotak and his nephew Shri Krishna B Kotak. The two sons of Shri Krishna B Kotak are also actively involved in the business. The other key person is Shri S K Parikh, CFO of the group.

5.2. Company is operating as licensed Custom House Agents at most Indian ports. M/s J M Baxi & Co. and its group provide clearing and freight forwarding services including custom clearance, compliance with import / export regulations and comprehensive multi nodal 'point to point' service comprising land, rail, air and sea transport and warehousing.

5.3. They have recently diversified into setting up of Container Freight Stations (CFS) and Inland Container Depots (ICDs).

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