TaxTMI 
TaxTMI 
2025 (1) TMI 1729
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.... that, on the facts and in the circumstances, the learned Commissioner of Income Tax (Appeals), Guwahati-1, Guwahati ["CIT(A)" for short hereafter] has erred in law and in fact in dismissing the appeal and thereby confirming the assessment order, as held by him to be passed under section 143 (3) read with Sections 147 and 254, by the learned Assessing Officer ("AO" for short hereafter) on the pleas that: (A) the Appellant could not submit the judgements of the sub-judge within the time limit; (B) the learned CIT(A) had no other option but to sustain the assessment order in view of the fact that the Honourable Court had not passed any orders in the said cases; and (C) the request of the appellant to keep the appeal pending in the interest of justice could not be entertained by the learned CIT(A) in view of governmental policies and norms to be followed in respect of disposal of appeals. 2. For that, on the facts and in the circumstances, the learned Commissioner of Income Tax (Appeals), Guwahati-1, Guwahati ["CIT(A)" for short hereafter] has erred in law and in fact in confirming the assessment order dated 20/12/2016 that was liable to be set asid....
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....erred in law in fact in confirming the assessment order whereby an amount of Rs. 115500/- was added back to the income of the appellant representing the purchase consideration of a land standing in the name of Smt Giribala Saikia, wife of the appellant. 9. For that, the appellant begs leave of putting forward additional ground/ grounds in addition to, modification/substitution of the above ground of appeal before or at the time of hearing." II. I.T.A. No. 259/GTY/2018; AY 1993-94: "1. For that, on the facts and in the circumstances, the learned Commissioner of Income Tax (Appeals), Guwahati-1, Guwahati ["CIT(A)" for short hereafter] has erred in law and in fact in dismissing the appeal, save and except his direction that the assessed income was to be taken at Rs. 1822610/-, and not Rs. 2583060/-, as wrongly taken by the learned Assessing Officer ("AO" for short hereafter), and thereby in confirming the assessment order, which was held by him to be passed under section 143 (3) read with Sections 147 and 254, on the pleas that: (A) the Appellant could not submit the judgements of the sub-judge within the time limit; (B) the learned CIT(A) ....
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.... sheet, and thereby has caused grave miscarriage of justice by not adhering to the due process of law and by requiring the appellant to perform the impossible. 7. erred For that, on the facts and in the circumstances of the case, the learned CIT(A) has in law in fact in confirming the assessment order whereby an amount of Rs. 1747899/- was added back to the income of the appellant, as income from LOC Scam, computed by estimating Rs. 9,35,761/- at 1/16th part of 60 percent of Rs. 2,49,53,627/- of Barpeta DVO, as 16 officials were named therein, another amount of Rs. 5, 60, 117/- at 1/13th part of 60 percent of Rs. 1, 21, 35, 879/ of Howli ICDP Scam, as 13 officials were named therein and another Rs. 2,52,021/- at 1/5th part of 60 percent of Rs. 21,00,177/- from Nagaon Treasury, as 5 officials were named therein 1/16th of 60 percent of Rs. 4698049/-, which is patently without basis and mere surmises and conjectures. 8. For that, the appellant begs leave of putting forward additional ground/ grounds in addition to, modification/ substitution of the above ground of appeal before or at the time of hearing." 3. Rival contentions were heard and the records and the sub....
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....Tribunal's order at Page number 12 to 16 of the paper-book, at ANNEXURE-4) {emphasis supplied} 1.3 The learned AO has given effect to the Hon'ble Tribunal's order by the purported order u/s 254 (which should have been u/s 143(3)/147/254 or 143(3)/ 147/254, as the case may be) on 20/12/2016 by assessing the income, as per the original assessment order dated 31/03/2003, at Rs. 25,83,060/-. Prima-facie, this is a wrong order, as the income after appeal effect was Rs. 18,22,610/-. 1.4 The present appeal is against the said order. REGRADING GROUND No. 1 READ WITH GROUNDS 2 TO 7 2.0 An assessment cannot be passed under section 254. The original assessment was made u/s 143(3) read with section 147. The present order has been passed to give effect to an order u/s 254. I complied with the notice fixing hearing. The order should be under section 143(3)/147/254. 2.1 Apart from the wrong nomenclature, the original assessment was re-opened admittedly on the 'accusations' contained in 2 (two) CBI charge-sheet without any tangible material that income had escaped assessment. It makes the entire proceeding void ab initio, as the c....
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....to have a 'cause' or 'justification' to form a 'belief' as a prudent man that I had earned any income from such scam. I submit that there could be no tangible material on the basis of unproved allegation. No other corroborative material of evidentiary value had been indicated. Therefore, the impugned assessment order purportedly passed u/s 254 as a sequel to the void order u/s 143(3) / 147 dated 31/03/2003 is liable to be quashed. 3.1 As stated above, in view of the relief granted in the appeal order dated 30/11/2016 in Guwa-109/2003-04/TR on 30/11/2006 (ANNEXURE-2) the revised total income was scaled down to Rs. 18,22,610/- in appeal effect u/s 251 dated 21/03/2007 (ANNEXURE-3) that was not challenged in appeal by the Department before the Hon'ble ITAT. Therefore, the assessment of Income at Rs. 25,83,060/- in the purported order u/s 254 is evidently bad in law and in fact. 3.2 The learned AO has referred to the CBI allegations contained in the cases registered by it as RC-2(A)/ 94 of ACU-I and RC-5(A)/94-ACU-I. The learned AO has found that in respect of RC-2(A)/ 94 of ACU-I related to Nagaon Treasury, I, along with 4 (four) ....
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....e has two parts: Barpeta DVO and Howly ICDP, as found by the learned AO in the original order. These are still being prosecuted in The Court of Special Judge, CBI, Guwahati, Assam as Special Case no. 56 and 57/2004. My advocate Sri Kapil Jain on my request has issued a certificate dated 05/05/2017 about the present status of the cases. It clearly says that the cases are now pending for trial and the next dates for examination of prosecution witness are fixed on 31/05/2017, 01/06/2017 and 02/06/2017. (ANNEXURE- 5, 5A at Page No. 17, 18 of the Paper-book). By adding back Rs. 14,95,878/- (935761+560117) [Kindly refer to 1st paragraph of page 3 of P.B, ANNEXURE-1] as my income, the learned AO has without jurisdiction pre-judged the case before the Hon'ble Special Judge by finding me guilty of the crime. He did not stop at that; he went ahead to hold without any relevant finding that I had earned income from the said crime and that the quantum of such income was Rs. 14,95,878/-. The action of the learned AO Is against the due process of law, it is an abuse of the process of law, findings are perverse that render the assessment order without jurisdiction and the usu....
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.... the aforesaid reason as well. 3.5 In the original assessment order, which has been repeated in the present impugned assessment order purportedly passed u/s 254, the plea taken by the learned AO, in order to add back Rs. 17,47,899/-, has been that I had failed to prove my non-involvement in LOC SCAM. The plea is absurd in as much as till now my involvement in the crime alleged in CBI case RC-5(A)/94-ACU-I that is being prosecuted as Special Cases no. 56 & 57/2004 has not been proved. The Judgment of the Special Judge in Special Case 67/2004 related to Nagaon Treasury does not give any finding about my income from the crime or about any quantum. Even that case is in appeal before the Hon'ble High Court. It would be repetitive to say the well established principle that a person is considered as innocent of an alleged crime until proved guilty as charged. Therefore, the aforesaid plea in adding back Rs. 17,47,899/- is a pretence, being abuse of the process of law and liable to be quashed and deleted in full. It is the assertion on the part of the learned AO that I was involved in a crime. From a plain reading of the relevant provision of law relating to evidence ....
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....arge number of decisions of the Co-ordinate benches where similarly placed matters have been remitted to the file of Assessing Officer for fresh adjudication after validity of charge sheet is judicially examined by the Sub-judge. The Honourable Tribunal had further directed that the Assessing Officer should not keep the fresh assessment pending forever to await the decision of the Sub Judge, and that he must pass the fresh assessment order, well within the time limit, to protect the legitimate interest of revenue. In view of the fact that appellant could not submit the judgments within the time limit, the AO had no option but to pass the fresh assessment by determining the total income as earlier passed in his case u/s 143(3)/147 on 31/03/2003. In ground no. 1, the appellant raised a point that an assessment order cannot be passed under section 254. He submitted that in the instant case the original assessment was passed consequent to re-opening of assessment under section 147 after hearing the appellant under section 143(3). The present assessment was to give effect to order under section 254. So, it ought to be an assessment order u/s 143(3) read with Sections 1....
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....ition and power and obtained for themselves and for others pecuniary advantage to the tune of Rs. 21,00,177/-, as evident from the Paragraphs 5 to 5.1 of the said judgment. At paragraph 50 of the aforesaid Judgment the Hon'ble Special Court had found as follows in respect of the appellant: "........... From our earlier discussions of the evidence it has revealed that Ext. 5/4 is the draft of sanction order for an amount of Rs. 5,80,711.47 for ICDP, Nagaon in respect of payment to firm M/S Prabhat Surgicals and it bears the signature of J. C. Saikia, Director. It reveals from the materials on record that Prabhat Surgicals is not an approved firm of the Vety. department. It cannot be believed that it was not within the knowledge of the signatories of Ext. 5/4 and also of the sanction orders. During the course of argument it has been submitted that accused J. C. Saikia only revalidated the sanction order. But in our earlier discussions we have found sufficient materials against him and also against accused T. Chakravarty who gave notes and prepared draft sanction order." At paragraph 51, the Honourable Special Court had pronounced the following sentence ....
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....cided as above." 5. At the conclusion of the hearing, the Ld. AR was also required to furnish a synopsis of his arguments which were filed and have been perused and the extract from the same is as under: 3.0 As regards the matter related to ITA No. 259/GTY/2018 for the A.Y. 1993-94 the appellant seeks to put forward the submissions and notes, as directed by the Honourable Tribunal, to the best of his ability, as hereafter appearing 4.0 The appellant was an officer of the Government of Assam. He was one of the three Individuals, who held the post of the Director of the Animal Husbandry and Veterinary Department of the Government of Assam during the period 1990-92 obviously consisting of financial years 1989-90 (part), 1990-91, 1991-92 and 1992-93 (part). To his knowledge, he joined as the Director on 30.11.1991 and went into suspension on 08.08.1993 and retired on 11.04.1994. 5.0 The Central Bureau of Investigation (CBI) submitted two charge-sheets RC- 2(A)/94 of ACU-I and RC-5(A)/94 of ACU-II in respect of Nagaon Treasury and Barpeta Treasury respectively concerning a part of a larger scandal known as LOC scam. The appellant was an accused in those cha....
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....s share of pecuniary benefit at Rs. 560117 by dividing equally among 13 co-accused 60% of Rs. 12135879. 10.0 The total estimated income from LOC Scam in the hands of the appellant was assessed at Rs. 1747899 (Page 13 of Enclosure 82 of Paper-book dated 19.11.2020 at 1" paragraph of the original assessment order dated 31.03.2003). Besides, he added back Rs. 760455 on account of house construction. As the assessment order given to the appellant is incomplete, the addition of Rs. 760455 is evident from the learned CIT (A)'s order at Enclosure B3, ibid., at Page 18 thereof. Accordingly, the income was assessed at Rs. 2583060. 11.0 On appeal, the learned CIT(A) vide his order dated 30.11.2006 in Appeal no. Guwa-109/2003-04 confirmed the addition of Rs. 1747899 on the ground of surrounding circumstances and human probability while he deleted the addition of Rs. 760455 on account of house construction by setting off the amount of Rs. 760455 against Rs. 1747899. (These facts are evident from Enclosure 83, page 15 to 19 of the Paper-book dated 19.10.2020) 12.0 That the appeal effect to learned CIT(A)'s order dated 30.11.2006 in Appeal no. Guwa-109/2003-04 ....
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....give effect to the order dated 30.11.2006 passed by the learned CIT(A) in Appeal no.: Guwa-109/03-04 for A.Y. 1993-94 held that the learned AO adopted the assessed Total Income wrongly at Rs. 2583060 and accordingly directed the assessing authority to correct the mistake apparent from the records by taking the figure of Rs. 1822610. 11.0 In view of the fact that the Special Judge, CBI, Assam, Guwahati in the mean time had passed his verdict in Special Case no. 67/2004 (New)/18(c)/1997 (old) related to Nagaon Treasury arising out of CBI Charge-sheet bearing no. RC- 2(A)/94 of ACU-I [The verdict is available at ENCLOSURE 88, page 29 to 94 of the paper book dated 19.10.20201, in respect of which an amount of Rs. 252021 was added back on estimate to the appellant's income, that learned CIT(A) recorded his detailed finding in Page no. 11 to 13 of the impugned order regarding the verdict of the said Honourable Court. He referred to the issues decided in the said verdict wherein the appellant with 6 (Six) others were found guilty under section 1208/420 IPC/13(2) r. w. 13(1)(d) of the Prevention of Corruption Act. He quoted from paragraph 50 of the judgment to record that the ....
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.... of the Assam Financial Rules, as available in the public domain, clearly show that such amount is to be recovered from the person and departmental inquiries are to be undertaken for that purpose before the criminal investigation and prosecution commence. The Court of the Special Judge is trying the matters under Indian Penal Code and Prevention of Corruption Act to punish the errant persons, if any, for indulging in crimes. But the proceeds of such crime, if any, cannot be the income of a public servant for the reason that the ownership of the money or asset, misappropriated or defalcated, vests in the Government and it is diverted by overriding title before it reaches the errant public servant. The relevant part of the Assam Financial Rules containing Rule 466 and 467 has been enclosed as Annexure-2 (page 3 to 11) hereof. 14.0 (a) From the above, it is clear that the judgment and order dated 09.05.2014 in Special Case no.67/2004 (new)[18 (c)/1997 (old)] in "State (CBI) v Dr. Absaduz Zaman and Others" related to Charge-sheet no RC-2(A)/94 of ACU- I for Nagaon Treasury [ENCLOSURE B8, page 29-94 of the page-book dated 19.10.2020] is now in Criminal Appeal no.217/20....