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Facts
The assessee appealed against the CIT(A)'s order upholding the reassessment order. The Assessing Officer had made significant additions to the assessee's income under Section 68 of the Income Tax Act, 1961, primarily concerning cash receipts and payments related to transactions with one Mr. Subhash Akerkar, which the assessee claimed were advance fees for finance arrangement that were subsequently returned. The assessee provided documentation like MOUs and bank statements, but the AO denied the explanations.
Held
The Tribunal held that the Assessing Officer had not conducted independent inquiries or verifications and remained silent on issuing notices to relevant parties like ICICI Bank or Mr. Subhash Akerkar. Despite the assessee's claim of returning the amounts and having no contact with Mr. Akerkar, the AO failed to consider these submissions. The Tribunal also noted that the source of funds and source of source were disclosed but not properly investigated by the AO.
Key Issues
Whether the Assessing Officer erred in making additions under Section 68 without conducting adequate independent inquiry and disregarding the assessee's explanation regarding the nature and source of funds, especially when the assessee claimed repayment and lack of contact with the involved party.
Sections Cited
250, 144, 147, 148, 68, 271(1)(c), 133(6)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “F” BENCH, MUMBAI
order : 30.05.2025 O R D E R [ Per Rahul Chaudhary, Judicial Member:
1. 1. The present appeal preferred by the Assessee is directed against the order, dated 12/05/2023, passed by the National Faceless Appeal Centre (NFAC), Delhi [hereinafter referred to as ‘the CIT(A)’] under Section 250 of the Income Tax Act, 1961 [hereinafter referred to as ‘the Act’] whereby the Ld. CIT(A) had dismissed the appeal against the Assessment Order, dated 14/12/2018, passed under Section 144 read with Section 147 of the Act for the Assessment Year 2011- 2012.
2. The Assessee has raised following grounds of appeal :
1. Dear sir, the assessment order which has been issued on dated 14.12.2018 with demanding order/payment of Rs.1,25,19,140/- that simply not accepted. The following are Assessment Year 2011-2012 some reasons and some confusion behind it. 1) To the beginning Mr. A.K.Mahala, Dy. Director of Income Tax (INV) Unit-2, Kolhapur have issued notice to us clearly mentioned in subject as: Income Tax proceedings in case of Subhash Akerkar regarding . Ref:No.KOP/DDIT(Inv) 1552/2014-15 dt.2.3.2015. They simply ask to provide our ledge account details. To the answer, we provide the same on dated 10.03.2015. It means they issued notice regarding Subhash Akerkar case. The information which we have provide to them that same information they passed to the Mumbai Income Tax office for further Investigation. Upon this information, Mumbai office issued first notice to us 2) Mumbai AO accepted this information and started investigation. We took money and same has been returned but AO denied to accept this fact.
When the appeal was taken up for hearing none was present on behalf of the Assessee. However, the Assessee has filed written synopsis/submission which reads as under:
“Dear Sir/Madam, xx xx The assessment order which has been issued on dated 14.12.2018 with demanding order/payment of Rs.1,25,19,140/- that simply not acceptable. The following are some reasons and some confusion behind it. 1) To the beginning, Mr. A.K. Mahala, Dy. Director of Income Tax (INV) Unit-3, Kolhapur have issued notice to us clearly mentioned in subject as: Income Tax proceeding in case of Subhash Akerkar regarding. Ref: No.KOP/DDIT (Inv)1552/2014-15 dt.2.3.2015. They simply ask to provide our ledger account details. To the answer, we provide the same on dated 10.03.2015. It means they issued notice regarding subhash Akerkar case. The information which we have provide to them that same information they passed to the Mumbai Income Tax office for further Investigation. Upon this information, Mumbai office issued first notice to us. 2) Mumbai AO accepted this information and started investigation. The information clearly showing that we took 73.20 L from Mr. Sbhash Akerkar as advance fee and same has been returned to them. This fact has been accepted by AO Mumbai & also mentioned in assessment order. Your statement (para 3.1 on page 3) is that we have not shown any proof/receipt of this transaction between we & Akerkar but you have received the information from DDIT (Inv) kolhapur in form of MOU made between we & Akerkar. That also you stated that you seen this MOU & also mentioned in assessment order 2 Assessment Year 2011-2012 on page no.1. 3) The last payment of Rs. 16,50,000/- out of this 73.21 which we transferred to Mr. Akerkar that we took from Emperor Builders Pvt. Ltd. Just before this transaction made to Akerkar. Your statement is that the same amount has been credited to the capital account of Emperor Builders Pvt. Ltd. The fact is that there is no such credit entry that we made again to the Emperor Builder account. You can again check the statement details. 4) You ask to produce Mr. Akerkar in personal along with all relevant documents. We unable to produce because there is no any contact between us since the date, we made transfer their last payment in the year 2011. 5) All information, we have provided in original copies include MOU, Bank passbook where we got credit of Rs. 73.201, Our statement copy of returned transaction to Mr. Akerkar etc. every thing we submitted to Mr. Sukumaran AO at Mumbai income tax. Office. But as per assessment order this information not taken on account. So what is purpose to submit physical original copies to you on trust. One of your inspector told during Investigation that there is nothing on desk. Now your demand is simply on returned amount. The sum we took from X party & same has been returned to X party. We neither did any business from that amount. No any profit we made. So how your accessing officer asking to pay tax on simply returned amount? Just because of we never produce to Mr. Akerkar in physical before you but you can not denied the bank statement where we got credit & same we returned to Mr. Akerkar. We are extremely sorry and apologize if we fail to produce Mr. Akerkar before you because we have never contacted upon last payment transfer. One useful info regarding this case which is not on table. (Mr. Akerkar has took money in crores from their client in Goa for the purpose of arranging loan. We didn't knew that person. Mr. Akerkar in alone approach to me and ask to do their work. We took 73.20 L from Akerkar for the work but unfortunately their client's property was in litigation and hence their proposal could not be proceed further and we returned this amount to Mr. Akerkar. Now here what I supposed to that my responsibility is over by returned this amount but in the year of 2017 one day evening Goa police came to my office with Mr. Akerkar and arrested me for the fraud. I was in 5 days custody in Goa. When we produced all our bank statement before Goa court then even court has agreed that all amount we returned to Mr. Akerkar and our bail has granted. The original party which was client of Mr. Akerkar that client has filed one fraud complaint against Mr. Akerkar and Akerkar indicate to me. In their complaint, even in charge sheet filed by Goa Police, my name was not there in anywhere. The whole amount in crores which Mr. Akerkar took from their client, that simply not returned to their client even after we returned 73.20 L to Mr. 3 Assessment Year 2011-2012 Akerkar. Mr. Akerkar used that all money for their personal use. Here when we got arrested by Goa police, we shocked that all money he never returned to their client so their client has filed complaint. Even after one year struggle Goa court has given an order for removal my name from whole this case. We have all documents even court order also. You can check online Goa court portal. All this information is not officially on record to you because assessing officer has passed an order in the year of 2018 & we received Goa court order in Dec, 2021 for removal our name from this case.”
We have heard that Learned Departmental Representative and have perused the material on record including the written note/synopsis filed by the Assessee along with the appeal memorandum.
The relevant facts in brief are that for the Assessment Year 2011- 2013, Assessee a resident individual, filed return of income on 28/03/2013 declaring total income of INR.1,51,860/-. Subsequently, the reassessment proceedings under Section 147 of the Act were initiated in the case of Assessee by issuance of notice dated 31/03/2018 under Section 148 of the Act on the basis of information received from Deputy Director Income Tax, Unit III(1), Kalhapur. Following reasons were recorded for the reopening the assessment: “The DDIT(Inv.), Unit-III(1), Kolhapur, vide his letter No. Kop/DDIT/UIII(1)/STR(16)/2015-16 dated 16.06.2015 provided information regarding the assessee is a director of the company M/s. Emperor Builders Pvt. Ltd. The information forwarded states that there are frequent withdrawal of cash through RTGS in ICICI Bank account No.0988050000078 amounting to Rs. 73.20 lakhs to Rs. 1.20 crores during FY 2008-09 to FY 2011-12. On perusal of information it is seen that there is a MOU between assessee and Shri Subhash Akerkar, being a CA for arranging loans of Rs. 10 crores from international lenders and he was to be commission @ 1.5% basis. The investigation report further states that assessee has received total amount of Rs. 73.20 lacs as advance from Shri Subhash Akerkar, even if on loan of Rs. 10 crores an amount of Rs. 15 lacs was admissible @ 1.50% of the disbursed amount. In assessee's case no disbursement has been made and assessee has return the money almost after a year. The sources of payments and the expenditure, if any, made in cash do not match with the normal pattern of the business of the assessee.
4 Assessment Year 2011-2012 The assessee has e-filed return of income for AY 2011-12 on 28.03.2013 declaring total income of Rs. 151860/- claiming deduction under chapter VIA of the Act of Rs.1040671/-. On perusal of return of income, it is noted that assessee has declared his business as "Nagpure Interior Designer" and has shown Income from salary at Rs.120000/-, income from Profits & gains from business or profession at Rs.248427/-. The Individual Transaction statement of ITD system also shows frequent RTGS transaction from the account with Barclay Bank PLC, HDFC Bank and ICICI Bank Ltd. Therefore, the deposit of Rs. 73.20 lakhs is not in commensurate with its business which need verification. On the basis of information received / available in the return of income filed, I have reason to believe that the income chargeable to tax in the case of Shri Uday V. Nagpure, to the tune of Rs. 73.20 lakhs has escaped assessment for AY 2011-12 and need to be reopened u/s. 147 of the I. T. Act, 1961 so that this income can be brought to tax.”
During the reassessment proceedings, the Assessee was directed to produce Shri Subhash Akerkar in person, while the Assessee could not produce Shri Subhash Akerka, the Assessee made following submissions (recorded in paragraph 3 of the Assessment Order):
“Subhash Akerkar who introduced himself as CA & as mediator behalf of their client who were seeking financial help against their various properties valuation, approach me to assist in financial help. For the purpose we took 73.20 lacks from Mr. Subhash Akerkar as advance processing fees but meantime that proposal got cancelled due to delay in legal reports of properties. In that case I was liable to return this amount to Mr. Subhash Akerkar. So I returned this amount to Mr. Akerkar in partial payment. Mr. Akerkar gave this amount to me in my Bank of India personal account. That account entry with original passbook of Bank of India & Original MoU made between me and Mr. Akerkar already shown and kept with AO Mr. Sukumaran at your office to their reference.” 5.1. After taking into consideration the above submissions the Assessing Officer made an addition of INR.73,20,000/- in the hands of the Assessee under Section 68 of the Act holding as under: “3.1 The submission of the assessee has been carefully perused but the same is not acceptable. From the submission of the assessee it can be seen that the assessee has failed to produce Shri Subhash Akerkar in person alongwith his books of accounts and 5 Assessment Year 2011-2012 all other documents to prove the source of Rs.73,20,000/- paid to him. The assessee during the course of the assessment proceedings has also failed to produce any receipts / voucher to prove that the payment were received against the said services as stated in his submission. The Onus was on the assessee to prove the nature and the source of payments which he has failed to do so. Considering the said fact, the sum of Rs. 73,20,000/- is added back to the total income of the assessee u/s. 68 of the I. T. Act. Penalty proceedings u/s. 271(1)(c) of the I.T. Act are initiated separately for concealing particulars of income.” (Emphasis Supplied) 7. Further, the Assessing Officer also observed that an amount of INR.16,50,000/- was paid by the Assessee to Shri Subhash V. Akerkar in his ICICI Bank Account No. 003501069368 on 01/09/2010. According to the Assessing Officer the aforesaid amount was paid by the Assessee on behalf of M/s. Emperor Builders Pvt. Ltd. In this regards, during the course of assessment proceedings, the Assessee was required to show cause why the said amount should not be added back to his total income. In response, the Assessee filed the following written submission (recorded in paragraph 4 of the Assessment Order):
Before transferring 1650000/- to Mr. Akerkar from my ICICI personal account, we got credit form Emperor Builders account for the same amount to my ICICI personal account. Only after I transfer this amount to Mr. Akerkar. But there is no such credit entry of this sum of Rs. 1650000/- from my personal account to Emperor Builder after done this transaction. This amount was partial payment out of 73.20 lacks. It is cleared that we took 73.20 lacks from Akerkar and the same has been returned to him in trench from my personal account. Hence total obligation is over. Also here I confirmed that, after finished this transaction I neither met him nor kept any contact till today.
(Emphasis Supplied) 6.1. After taking into consideration the above submissions the Assessing Officer made an addition of INR.16,50,000/- in the hands of the Assessee under Section 68 of the Act holding as under:
4.1 The submission of the assessee has been perused but the same is not acceptable. The assessee in his submission has failed to explain when the amount of Rs.16,50,000/- which was paid to Shri Subhash 6 Assessment Year 2011-2012 V. Akerkar in his ICICI Bank Account No. 003501069368 on 01.09.2010 and why the said amount was again credited to the capital account of M/s. Emperor Builders. The onus was on the assessee to furnish his explanation with supporting documentary evidences which he has failed to do so. In view of the same, the sum of Rs. 16,50,000/- credited to the capital account of M/s. Emperor Builders is added to the total income of the assessee. Penalty proceedings u/s. 271(1)(c) of the I.T. Act are initiated separately for concealing particulars of income.
(Emphasis Supplied) 8. During the assessment proceedings M/s. Emperor Builder Pvt. Ltd. was asked to submit the ledger account of the Assessee as appearing in the books of M/s. Emperor Builder Pvt. Ltd. The ledger account submitted showed rise in his capital of the Assessee from INR.16.15 Lacs (as on 31/03/2010) to INR.120.55 Lacs (as on 31/03/2011). M/s. Emperor Builder Pvt. Ltd. submitted ledger account of the Assessee in his capacity as a director of the said company. The Assessee was directed to prove the source of the capital introduced in M/s. Emperor Builders Pvt. Ltd. with supporting documentary evidences. In this regard the Assessee submitted as under (recorded in paragraph 5 of the Assessment Order):
We received the amount from Emperor Builders Pvt. Ltd. As director as advance pay on return basis. We received entire sum from M/s.Lalitha Cement Ind. Ltd., Hyderabad….. Lalitha Cement Ind. Limited has given this sum to Emperor Builders as an advance on return basis, Same original MOU we already been submitted to AO Mr. Sukumaran at your office. (please see separate attachment for the copy of this MOU). The source of all funds are clear. We got credit from Lalitha Cement to Emperor Builder Pvt. Ltd. as an advance on return basis. Lalitha Cement has given many reminder to jus that advance pay but still we unable to return them. But in any how condition we have to return each single penny to them, which they gave credit to us as per MoU made between us. No other company or entity has been involved in all of these transaction, other than Lalitha Cement Ind. Limited.
7.1. After taking into consideration the above submissions the Assessing Officer made an addition of INR.1,04,05,000/- in the hands of the 7 Assessment Year 2011-2012 Assessee under Section 68 of the Act holding as under:
5.1 the submission of the assessee has been carefully perused and the same is not acceptable. The assessee during the course of the assessment proceedings has stated that the sum of Rs. 1,04,05,000/- has been received from M/s. Lalitha Cement Ind. Limited. However, the assessee has failed to prove the creditworthiness of the party to advance such huge amount to the assessee. The onus was on the assessee to prove the creditworthiness of the said lender and the genuineness of the transaction which he has failed to do so. In view of the said facts a sum of Rs. 1,04,05,000/- is added back to the total income of the assessee u/s. 68 of the I.T. Act. Penalty proceedings u/s. 271(1)(c) of the I.T. Act are initiated separately for concealing particulars of income.
The Assessee was also asked to disclose of the source of credit card payments of INR.21,81,122/- and cash deposits of INR.7,97,671/- in HDFC Bank. In this regards the Assessee made following submissions (recorded in paragraph 6 of the Assessment Order)
HDFC Bank credit that I used in past which had limit of only 4 lacs. We spent this sum for our installation of water plant business as well as purchase and install various accessories in part of. But right now to be honest we don't have evidence for such transactions. The sum Rs. 7,97,671/- as I paid in cash in entire year as might be interest of each month that paid to the HDFC bank. Also the original source is clear. Lalitha Cement to Emperor Builder and Emperor Builders to my personal account. Was director of Emperor Builder Pvt. Ltd. here confirms that company neither did any business nor made any profit during entire financial and assessment year. Right now this company has been strike off from MCA portal also their account is in Non- operative status.
8.1. After taking into consideration the above submissions, the Assessing Officer made an addition of INR.21,81,122/- and INR.7,97,671/- in the hands of the Assessee under Section 68 of the Act holding as under:
6.1 The submission of the assessee has been carefully perused. The assessee in his submission has stated that the entire amount of credit card were spent for our installation of water plant business as well as purchase and install various accessories in part for which as on date the assessee does not have evidence for such transactions. In the case of the assessee the issue which arises is how the assessee has 8 Assessment Year 2011-2012 repaid the credit card company against the credit card payments made by him. The onus was on the assessee to prove the source of the said payments of Rs. 21,81,122/- with supporting documentary evidences which he has failed to do so. In view of the same, credit card payment amounting to R.s 21,81,122/- are added back to the total income of the assessee. Penalty proceedings u/s. 271(1)(c) of the I.T. Act are initiated separately for concealing particulars of income.
6.2 Further, the assessee in his submission has failed to explain the source of the cash deposited in his bank account with HDFC bank amounting to Rs. 7,97,671/-. The onus was on the assessee to prove the source of the said cash deposits of Rs. 7,97,671/- with supporting documentary evidences which he has failed to do so. In view of the same, cash deposits amounting to Rs 7,97,671/- are added back to the total income of the assessee. Penalty proceedings u/s. 271(1)(c) of the I.T. Act are initiated separately for concealing particulars of income.” (Emphasis Supplied) 10. Thus, vide Assessment Order, dated 14/12/2018, passed under Section 144 read with Section 147 of the Act, the Assessing Officer made aggregate addition of INR. 2,23,53,793/- under Section 68 of the Act.
Being aggrieved, the Assessee challenged the Assessment Order in appeal before the CIT(A). The Assessee contested the Additions of INR.73,20,000/-, INR.16,50,000/- and INR.1,04,05,000/- before the CIT(A). It was contended the original Memorandum of Understanding, Bank Statements and Bank Pass-Books were provided during the investigation and during the assessment proceedings despite this addition was made in the hands of the Assessee. It was submitted that the since the Assessee had returned the entire amount to Mr. Subhash Akerkar in the year 2011, the Assessee was not in a position to produce Mr. Subhash Akerkar as there was no contact between with him. However, the CIT(A) was not convinced and therefore, the appeal preferred by the Assessee was dismissed.
Being aggrieved the Assessee has preferred the present appeal before the Tribunal.
9 Assessment Year 2011-2012
As noted hereinabove, none was present on behalf of the Assessee. However, the Assessee had filed a written note/synopsis wherein the stand taken by the Assessee before the Assessing Officer and the CIT(A) was reiterated. The stand taken by the Assessee is as under:
(a) The Assessee received INR.73,20,000/- from Mr. Subhash Akerkar as advance for securing finance.
(b) Since the proposed transaction did not go through, the Assessee had to return the entire amount of INR.73,20,000/- in piecemeal payments.
(c) The entire amount was repaid in full, and the last payment of INR,16,50,000/- was made in 2011 though ICICI Bank Account.
(d) The source of funds used for repayment of the above amount of INR.73,20,000/- was funds received from Emperor Builder Pvt. Ltd.
(e) The source of source was disclosed by the Assessee to be Lalitha Cement Ind. Limited
(f) It was contended by the Assessee the Original Memorandum of Understanding and Bank Statements were furnished during the investigation and assessment proceedings.
(g) Since the Assessee had no contact with Mr. Subhash Akerkar, he was unable to secure his presence.
Per Contra, the stand taken by the Revenue was that the Assessee had failed to discharge the onus to establish nature and source of credits. No supporting documents were furnished by the Assessee before the Assessing Officer and the CIT(A). The Assessee also failed to produce Mr. Subhash Akerkar before the Assessing Officer. In support, the Learned Departmental Representative placed reliance 10 Assessment Year 2011-2012 upon the observations and findings of the Assessing Officer.
We have given thoughtful consideration to the stand taken by both the sides and the material on record. On bare perusal of the reasons recorded for re-opening assessment it becomes clear that it was admitted position that there was a Memorandum of Understanding between Mr. Subhash Akerkar and the Assessee for arranging finance of INR.10 Crores from international lenders. The Assessee had received INR.73.20 Crores through bank transfer and the Assessee had also returned an amount of INR.73.20 Crores. The Assessing Officer noted that the Assessee had disclosed income of INR.1,51,860/- after claiming deduction of INR.10,40,671/- under Chapter VIA of the Act. According to the Assessing Officer the Assessee did not have sufficient funds to repay the amount of INR.73,20,000/-. Therefore, reassessment proceedings were initiated. During the Assessment Proceedings, the Assessee had explained that funds were received by the Assessee from Emperor Builder Pvt. Ltd. which had, in turn, received funds from Lalitha Cement Ind. Limited. In this regard, in response to the query raised by the Assessing Officer, the Assessee had submitted that payment of INR.16,50,000/- was made by the Assessee to Mr. Subhash Akrekar through ICICI Bank Account on 01/09/2010 after receiving funds from Emperor Builder Pvt. Ltd. During the investigation by the Investigation Wing, ledger account of the Assessee maintained by Emperor Builder Pvt. Ltd. was requisitioned. The relevant extract of the same has been reproduced in paragraph 5 of the Assessment Order. As per the said extract, there is an entry of INR.16,50,000/- in the ledger according to which INR.16,50,000/- was transferred to the bank account of the Assessee on 01/09/2010. This clearly supports the submission of the Assessee that funds received by the Assessee from Emperor Builder Pvt. Ltd. were used for repayment of money received from Mr. Subhash Akrekar. We note that on 11 Assessment Year 2011-2012 perusal of the reasons recorded and the Assessment Order, it was evident that (a) Memorandum of Understanding between the Assessee & Mr. Subhash Akrekar, (b) the Bank Account Statement / Pass Book of the account maintained by the Assessee with ICICI Bank and (c) the Ledger Account of the Assessee maintained in the books of account of Emperor Builder Pvt. Ltd. were available with the Assessing Officer. In our view, the content thereof and/or the entries contained therein corroborated the stand taken by the Assessee. Despite this, no independent inquiry/verification was carried out by the Assessing Officer. We find that The Assessment Order is completely silent in relation to any notice or summons having been issued by the Assessing Officer to ICICI Bank or Mr. Subhash Akrekar (who has in first place has admittedly paid INR.73,20,000/- to the Assessee). Even though the Assessee had stated that the Assessee had returned the entire amount in 2011 (fact which formed the very basis of reasons recorded for reopening the assessment), the Assessing Officer failed to take into account the submission of the Assessee that the Assessee had no contact with Mr. Subhash Akrekar and had no means of producing him in the assessment proceedings. In the written synopsis filed before the Tribunal it has been stated by the Assessee that Mr. Subhash Akrekar is being investigated by Goa Police for taking money from various clients on the pretext of arranging loans and not returning the same back to them. Further, we find that the Assessee had not only disclosed the source (i.e. Emperor Builder Pvt. Ltd.) but also the source of source as Lalitha Cement Ind. Limited. However, no information/details were called for by the Assessing Officer from Lalitha Cement Ind. Limited before making addition of INR.1,04,05,000/- in the hands of the Assessee. Given the aforesaid facts, we are of the view that the additions of INR.73,20,000/-, INR.16,50,000/- and INR.1,04,05,000/- made by the Assessing Officer under Section 68 of the Act cannot be sustained and are, therefore, set aside with the 12 Assessment Year 2011-2012 directions to the Assessing Officer to decide the issues afresh after considering the documents/details forming part of the assessment record and the report received from the investigation wing. The Assessing Officer is directed to exercise power under Section 133(6) of the Act to carry out such inquiry/investigation as the Assessing Officer may deem fit. It is clarified that no addition shall be made in the hands of the Assessee solely on account of failure of the Assessee to produce Mr. Subhash Akrekar. The Assessee would also be at liberty to produce such further documents/details as the Assessee may deem fit to support his claims/contentions (including documents relating to order passed by the Trial Court in Goa directing removal of the name of the Assessee in the criminal case filed against Mr. Subhash Akrekar). Since we have remanded the issue back to the file of the Assessing Officer, all the rights and contentions are left open. In terms of the aforesaid, grounds raised by the Assessee in the present appeal are treated as allowed for statistical purposes.
In result, the present appeal is treated as allowed for statistical purposes.