Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, “DEHRADUN BENCH”
Before: SHRI AMIT SHUKLA & SHRI B.R.R. KUMAR
- INCOME TAX APPELLATE TRIBUNAL “DEHRADUN BENCH” BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI B.R.R. KUMAR, ACCOUNTANT MEMBER ITA No.26/DDN/2019 Assessment Year: 2010-11
Rukman Agarwal, 21/1, ACIT, D1 & D2, Nainital Road, Central Circle Vs. Civil Lines, Rudrapur, Haldwani Udham Singh Nagar, Uttarakhand Pin 263 153 PAN ABXPA3879K (Appellant) (Respondent)
ITA No. 27/DDN/2019 Assessment year 2011-12 Shiv Kumar Agarwal, 21/1, Vs. ACIT, D1 & D2, Nainital Road, Central Circle Civil Lines, Rudrapur, Haldwani Udham Singh Nagar, Uttarakhand Pin 263 153 PAN AAPPA0222P (Appellant) (Respondent)
ITA No. 28/DDN/2019 Assessment year 2012-13 Saurabh Agarwal, 21/1, D1 Vs. ACIT, Central & D2, Circle Haldwani Nainital Road, Civil Lines, Rudrapur, Udham Singh Nagar, Uttarakhand Pin 263 153 PAN ABXPA3881D (Appellant) (Respondent)
ITA No. 29/DDN/2019 Assessment Year 2012-13 Abhishek Agarwal, 21/1, Vs. ACIT, D1 & D2, Central Circle Nainital Road, Haldwani Civil Lines, Rudrapur, Udham Singh Nagar, Uttarakhand Pin 263 153 PAN ABXPA3880C (Appellant) (Respondent)
Assessee by: Shri Rakesh Sehgal, CA Department by : Shri Naveen Chand Upadhyay, Sr.DR Date of Hearing 29/01/2021 Date of 18/03/2021 pronouncement
O R D E R PER AMIT SHUKLA, J.M.: The aforesaid appeals have been filed by the above mentioned assessees against separate impugned orders dated, 20.3.2019 in the case of Ms. Rukman Aggarwal, Shri Saurabh Aggarwal and Shri Abhishek Aggarwal; and order dated 19.3.2019 in the case of Shri Shiv Kumar Aggarwal, passed by the Ld. CIT (Appeals) III Lucknow for the quantum of assessment passed u/s 143(3) read with section 153A for the assessment year 2011-12. Since common issues are involved in all the appeals arising out of identical set of facts, therefore, same were heard together and are being disposed of by way of this consolidated order. In all the appeals, common grounds have been raised which are verbatim the same. For the sake of ready reference,
the grounds of appeal in the case of Ms. Rukman Agarwal is incorporated as under :-
“The Ld. AO/CIT Appeals have erred in law and on facts in disturbing the assessment already completed without there being any incriminating material found during search qua subject Assessment Year ignoring Apex Court Judgment and thus the proceedings initiated and conducted were beyond the scope of reassessment U/s 153A of the IT Act, 1961. 2. That non-consideration of additional evidence after admission under rule 46A by Ld. CIT Appeals, on account of non-submission of remand report by AO in time, with the given facts and circumstances of the case, is against the principles of natural justice and therefore, the same is liable to be admitted and considered. 3. The addition of Rs. 2,00,00,000/- was bad in law, illegal, unjustified and contrary to the facts and law on merits alone, by recording incorrect facts and findings and without considering the replies filed and material on records justifying identity, creditworthiness and genuineness of the transaction. 4. The Ld. AO failed to submit the remand report to CIT Appeals in time after receiving due direct confirmation U/s 133(6) on direction of appellate authority and thus the assesse discharged its primary onus to establish the identity, creditworthiness and genuineness of the transaction and hence the addition is liable to be deleted.”
The facts qua the issue of addition of Rs. 2,00,00,000/- in all the cases are that, a search and seizure operation was carried out on 20.3.2016 at the residential and office premises belonging to the Kumar Group including in the cases of all the four assessees. During the course of assessment proceedings, the Ld. AO from the bank account filed by the assessee with the Axis Bank, Civil Lines, Rudrapur noted that there are credit entries received from M/s. Sunview Retail Pvt. Ltd. and M/s. Siddheswari Vyapaar Pvt. Ltd. For the sake of ready reference, the details of amount received through
cheque from M/s. Sunview Retail Pvt. Ltd. and M/s. Siddheswari Vyapaar Pvt. Ltd. are as under:-
Rukman Agarwal
! S.No, Date Description Amount 1. 03.03.2011 Sunview Retail/CN#_123496 Rs, 25,00,000/- 05.03.2011 Sunview Retail/ CN#_038105 Rs. 25,00,000/- 2. 3. 07.03.2011 Sunview Retail/CN#038109 Rs. 50,00,000/- 4. 10.03.2011 Sunview Retail/CN#219803 Rs, 25,00.,000/- : 5. 03.03.2011 Sunview Retail/CN# 123494 Rs. 50,00,000/- 10.03.2011 Sunview Retail Bank Receipt Rs. 25,00,000/- 6.
Shiv Kumar Agarwal S.No, Date Description Amount 1. 02.03.2011 Sunview Retail/CN#_23493 Rs, 50,00,000/- 02.03.2011 Sunview Retail/ CN#_23497 Rs. 25,00,000/- 2. 3. 05.03.2011 Sunview Retail/CN#038102 Rs. 25,00,000/- 4. 07.03.2011 Sunview Retail/CN#2_9801 Rs, 50,00.,000/- 5. 10.03.2011 Sunview Retail/CN# 2_9802 Rs. 25,00,000/- 10.03.2011 Sunview Retail Receipt Rs. 25,00,000/- 6.
Saurabh Agarwal Amount credited Date Description (Rs.) 18/10/2011 RTGS - Rs, 25,00,000/- ORBCH1129107G389/Siddheshawri 20/10/2011 RTGS Rs.30,00,000/- ORBCH11293089764/Siddheshawri Vypaar Pvt., Ltd. 01/11/2011 RTGS Rs. 10,00,000/- ORBCH 11305064096/ Siddheshawri Vypaar Pvt. Ltd.
01/11/2011 RTGS -ORBCH Rs. 20,00,000/- 11305069164/Siddheshawri Vypaar 01/11/2011 RTGS –ORBCH1 Rs. 10,00,000/- 1305070069/Siddheshawri Vypaar Pvt. 08/11/2011 RTGS -ORBCH Rs. 72,00,000/- 11312020259/Siddheshawri Vypaar 11/11/201t RTGS -ORBCH 1131 Rs. 33,00,000/- 5047108/Siddheshawri Vypaar Pvt..
Abhishek Agarwal Date Cheque Particulars Credit No. 15.10.2011 RTGS-ORBCH 11288046229 55,00,000/- Siddheshwari Vyapaar Pvt. Ltd. 15.10.2011 RTGS-ORBCH 11288050575 16,00,000/- Siddheshwar Vyapaar Pvt. Ltd. 17.10.2011 RTGS-ORBCH 11290052503 50,00,000/- Siddheshwari Vyapaar Pvt. Ltd. 17. 10.2011 RTGS-ORBCH 11290060380 44,00,000/- Siddheshwari Vyapaar Pvt. 'Ltd, 18.10.2011 RTGS-ORBCH 11291064949 20,00,000/- Siddheshwari Vyapaar Pvt. Ltd.
18.10.2011 RTGS-ORBCH 11291070149 15,00,000/-
The Ld. AO thus observed that in these bank statements, huge amount aggregating to Rs. 2,00,00,000/- in each of the assessees have been received either from M/s. Sunview Retail Pvt. Ltd. or M/s. Siddheswari Vyapaar Pvt. Ltd. However, the same are not appearing anywhere in the balance sheet or profit and loss account except the bank statement. He accordingly, asked the assessee to give justification of the explanation of the said credit entries with supporting evidences to establish the identity, creditworthiness and genuineness of the transaction. The AO observed that in response,
assessee could not furnish any satisfactory explanation and corroborating evidences except for filing of photocopy of account of these two parties and confirmation and address was filed. Thereafter, AO had issued notices u/s 133(6), however, in response to such notices, no reply was received. The assessee’s case on the other hand had been that the amount of Rs. 2,00,00,000/- had been received against the sale of property from these two entities. Since as per the AO, assessee could not file the details and discharge their onus, therefore, addition of Rs. 2,00,00,000/- was made in all these cases u/s 69.
Before the Ld. CIT (A), the assessee had taken a legal ground that no incriminating document was found during the course of search and, therefore, the addition made by the AO is beyond the scope of assessment under section 153A. However, the Ld. CIT (A) rejected the assessee’s contention holding that Hon’ble Allahabad High Court in the case of CIT vs. Raj Kumar Arora (2014) 52 taxmann.com 172 (Allahabad) had held that AO has power to assess and reassess the return of income of the assessee not only for the undisclosed income found during the search operation, but also with regard to material available at the time of original assessment. Similar view was taken by the Hon’ble Allahabad High Court in the case of CIT vs. Kesarwani Zarda Bhandar in appeal No. 269 to 270 and appeal No. 15 to 17 wherein similar view was upheld. Accordingly, he rejected the said contention. 5. On merits with regard to the amount of sum of Rs. 2,00,00,000/- received in the bank account with Axis Bank, Rudrapur in the case of Shri Shiv Kumar Agarwal and Ms. Rukman Agarwal, it was contended by the assessee that the same was received from M/s. Sunview Retail Pvt. Ltd. against the proposed sale of property at Plot No. 21/1, D-1,
D-2, Civil Lines, Nainital Road, Rudrapur including super structure in terms of agreement to sell dated 3rd March, 2011. These amounts were appearing in the individual balance sheet of the assessee under the head ‘advance against the sale of property’. Similarly, in the case of Shri Saurabh Agarwal and Shri Abhishek Agarwal, it was stated that the amount of Rs. 2,00,00,000/- each received in the Axis Bank account from M/s. Siddheshwari Vyapar Pvt. Ltd. Kolkata against proposed sale of the property at plot No. 41/50 Kishanpur Canal Road, Dehradun including super structure in terms of agreement to sell dated 11th November, 2011. In all these cases following documents were filed:- i) Copy of agreement to sell. ii) Copy of confirmation of account and balance dated 1st April, 2012. iii) Copy of bank account of M/s Sunview Retail Pvt. Ltd. and M/s. Siddheshwari Vyapar Pvt. Ltd. showing the subject transfer. iv) Copy of annual accounts of the company as per MCA records. v) Copy of loans and advances showing name of the assessee.
It was further submitted that the said transaction could not be completed as the purchaser was not able to make payments as per the terms and conditions of agreement due to sudden downfall in the prices of real estate in Uttarakhand and finally the assessee has forfeited the advance against sale of property and transferred the said amount to the capital account to the individual balance sheet. Apart from that, various other submissions were made.
Ld. CIT (A) observed that the documents which have been filed along with the petition in rule 46A for admission of additional evidences the Ld. CIT (A) forwarded all the documents and the 7
additional evidences filed before him to submit remand report vide remand order dated 6.2.2019. Thereafter, Ld. CIT (A) had further sent the reminder to the AO on 20.02.2019 to submit the remand report by 5.3.2019. Despite adequate time allowed, the AO did not submit the remand report. Since AO did not filed the remand report, the Ld. CIT (A) had rejected the additional evidence and upheld the order of the AO.
Before us Ld. Counsel for the assessee submitted that here in this case the addition has been made for the assessment year 2011-12 which could not have said to be abated on the date of search that is, on 20.3.2016 in terms of second proviso to section 153A. Once the assessments for the assessment year 2011-12 have attained finality, then the return of income filed earlier should accepted and no addition could have been made within the scope of section 153A, without there being any incriminating material found during the course of search. He strongly relied upon the judgment of the Hon’ble Delhi High Court in the case of: Kabul Chawla (2016) 380 ITR 573 (Delhi) PCIT vs. Meeta Gutgutia 395 ITR 526 (Delhi)
On merits, he submitted that the assessee has given the explanation before the AO alongwith the confirmation and the statement of account that the amounts have been received towards advance as per the agreement to sale for the properties; and then again further evidences were filed before the Ld. CIT (A) under rule 46A. Despite the matter was remanded to the AO, the AO did not file any remand report. If the AO chooses not to file the remand report, then the Ld. CIT (A) has erred in law on facts in rejecting the additional evidences simply on the ground that AO has not submitted
his remand report. Thus, on this ground, the order of the Ld. CIT (A) cannot be sustained. 9. On the other hand, Ld. DR submitted that the Ld. CIT (A) has dealt the legal issue in detail and has relied upon the two judgment of Hon’ble Allahabad High Court as well as decision of Karnataka High Court in the case of M/s. Canara Housing Development Company vs. DCIT, Central Circle-1, Bangalore in ITA No. 38/2014 dated 25.07.2014 wherein the court has observed as under :- “When once the proceedings are initiated under section 153A of the Act, the legal effect is even in case where the assessment order is passed it stands reopened. In the eye of law there is no order of assessment. Re-opened means to deal with or begin with again. It means the Assessing Officer shall assess or reassess the total income of six assessment years. Once the assessment is reopened, the assessing authority can take note of the income disclosed in the earlier return, any undisclosed income found during search or and also any other income which is not disclosed in the earlier return or which in not unearthed during the search, in order to find, out what is the "total income" of each year and then pass the assessment order.”
On merits, he submitted that, firstly in the inquiry made by the AO u/s 133(6) either the notices returned back or no reply was received. Neither the directors were produced despite AO specifically asked to the assessee. Accordingly, the onus cast upon the assessee was not discharged. Thus addition has rightly been confirmed by the Ld. CIT (A).
We have heard the rival submissions and also perused the relevant findings given in the impugned orders. From a bare perusal of the assessment order, it is not clear as to whether the so called addition on account of credit entries in the bank account is in the nature of incriminating material found during the course of search or 9
the bank account was undisclosed account. It transpires that these are the bank accounts of the assessee duly disclosed in the balance sheet and even the amounts received as advances have been duly disclosed and shown in the respective balance sheets of the individuals. In all these cases, the original return of income was filed on July 2011 and thereafter, no notice u/s 143(2) was issued, which inter alia means that the return of income had attained finality and is to be reckoned as assessed income. On the date of search i.e., on 20.3.2016 the assessment for the assessment year 2011-12 is to be treated as unabated assessment in terms of second proviso to section 153A. If that be the situation, then any addition which has to be made should be based on incriminating material qua that assessment year during the course of search and seizure operation. There are now plethora of various high Court judgments which have reiterated the principle that in case of unabated assessment, the addition can be made in the assessment framed u/s 153A only when there is any incriminating material found during the course of search and it is only in the cases of abated assessment AO has power to assess or reassess the undisclosed income and the other income. This view is supported by the following judgements:- i) Jai Steel (India), Jodhpur v. ACIT [2013] 36 Taxmann.Com 523 (Raj); ii) Judgement dated 29th October, 2010 of Bombay High Court in ITA No.36/2009 in CIT v. M/s. Murli Agro Products Ltd.) iii) Commissioner of Income Tax v. Continental Warehousing Corporation (Nhava Sheva) Ltd. [2015] 58 Taxmann.Com 78 (Bom) iv) Kabul Chawla (2016) 380 ITR 573 (Delhi) v) PCIT vs. Meeta Gutgutia 395 ITR 526 (Delhi)
Ld. CIT (A) has relied upon the judgment of Hon’ble Allahabad High Court and Karnataka High Court which are non jurisdictional High Court judgments, because the jurisdiction of the assessee is that Uttarakhand High Court because the jurisdiction of AO is Haldwani, Central Circle, Haldwani. Once the jurisdiction will lie with the Uttarakhand High Court then in that situation where there are various judgments of High Courts most of them in favour of the assessee and other in favour of the revenue, then decisions which are favourable to the assessee should be followed. 13. Even Ld. CIT (A) in the impugned order has not disputed the fact that the additions made by the AO in all the four cases are based on any incriminating material found during the course of search albeit they are based on entries in the regular bank account duly disclosed by the assessee. It is not the case of the AO that these are unaccounted bank statements which were unearthed during the course of search. Hence it can be concluded that these additions are not based on any incriminating material found during the course of search and thus in such a situation and following the principle laid down by Hon’ble Delhi High Court, Hon’ble Bombay High Court and Hon’ble Rajasthan High Court (supra), thus such an addition are beyond the scope of assessment u/s 153A therefore, the same are directed to be deleted. 14. In the result the appeals filed by the assessee are allowed. Order pronounced in the Open Court on 18th March, 2021.
sd/- sd/- (B.R.R. KUMAR) (AMIT SHUKLA) ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated: 18/03/2021
Veena Copy forwarded to 1. Applicant 2. Respondent 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, New Delhi