MAHESH NARAYAN JOGLEKAR,MUMBAI vs. DCIT CC-4(1), MUMBAI

In so far as appeal for the AY 2011-12 is concerned, the reopening u/s 147 has been done on the following reasons recorded:-

Hence, I have reason to believe that income of Rs. 30,00,000/- chargeable to tax, has escaped assessment by reason of the failure on part of assessee to disclose fully and truly all material facts necessary for its assessment for AY 2011-12 within the

Mr Bindal, the learned counsel of the assessee, vehemently stated that the entire proceedings are null and void because there is complete non-application of mind not only by the AO but also by the PCIT while granting approval u/s 151 of the Act to reopen the assessment u/s 147. To support his above averment, the ld. Counsel referred to the following anomalies in the reasons recorded by the AO as mentioned on PB page no. 4 which does not have any date but presumably before 30/03/2018 when the notice u/s 148 of the Act was issued:

He also submitted vehemently that even otherwise in view of the infirmities in the reasons where not only the amount mentioned is incorrect, presuming that the statement of Mr Nilesh Bharani relied for the purpose vis-a-vis code, amount is correct, yet the said amount fell in the period relevant to the preceding AY 2010-11, because the date of the alleged transaction was 20/01/2010 which is clearly mentioned on page no. 28 of the assessment order, para no. 4.5 as well as a copy of the information relied upon by the Revenue given to the assessee placed at PB page no. 6.

He also stated that the fact that there was a complete non- application of mind not only by the AO as above but also by the PCIT granting approval u/s 151 of the Act as is given in the letter and others Mahesh Narayan Joglekar dated29/03/2018 given by the PCIT to the Addl. CIT intimating approval in the case of the assessee and also another assessee Evergreen Enterprises from the premises of whom the alleged material was recovered in a search on the said firm clearly shows that it was a borrowed satisfaction on the basis of information sent by the Investigation Unit because Evergreen Enterprises mentioned at Sr. No. 3 on the said letter at PB page no. 38 was not in existence at all during the period relevant to the AY 2011- 12 as per copy of the PAN:AADFE8617J of Evergreen Enterprises placed on record. The said firm came into existence on 01/04/2012 and the first assessment year could only be the AY 2013-14.

All these facts clearly demonstrate non-application of mind by the authorities below to initiate the reassessment proceedings u/s 148 of the Act.

On the similar issue, the learned counsel of the assessee also drew attention of the bench to the decision of the coordinate bench in Nilesh Bharani ITA 612/M/2020for the AY 2011-12 dated 28/02/2023where the following has been held: and others Mahesh Narayan Joglekar 91. We have already observed in our earlier paragraphs that the entire procedure to make an assessment or reassessment of income of the alleged escaped income either u/s 148 or section 153C of the Act practically is the same except the jurisdiction and root cause which are different. The legislature has specifically carved out scope of assessment / reassessment of income of a person not searched of such alleged escaped income based on some incriminating information found during a search on some other person searched by taking recourse to the section 153C of the Act. The AO has not been empowered to extend the scope of an assessment/ reassessment u/s 153A read with the section 153C of the Act beyond the alleged incriminating material found during the course of search in the case of some other person, because assessment / reassessment in such case is specifically restricted to the income based on the said incriminating information only. Whereas, in the proceedings initiated u/s 148 of the Act, the AO may extend the scope of the assessment / reassessment on other amounts also if any information about those is on his record over and above the alleged escaped income as per the reasons recorded. The purpose of restriction of assessment for amount of income by taking recourse to the provisions u/s 153C of the Act to alleged incriminating material and not on suspicion has been upheld by the Hon’ble Supreme Court in the case of Sinhgad Technical Education Society (supra).

Accordingly, we hold that any incriminating information of any undisclosed income of the person not searched which was found during the course of a search having taken place up to 31/03/2021 on some other assessee, can only be taken into consideration for an assessment / reassessment in the hands of the said person not searched through the domain of the section 153C of the Act. Thus, any assessment / reassessment proceedings-initiated u/s 148 of the Act in respect of the said incriminating information found during the course of a search up to 31/03/2021 on some other assessee is illegal and is ab initio as the same can be considered only by taking recourse to the and others Mahesh Narayan Joglekar provisions of the section 153C r.w.s. 153A of the Act. Thus, the assessment of the said amount of LTCG, which was claimed to be exempt u/s 10(38) of the Act by the assessee, made u/s 147 of the Act is beyond the scope of section 147, albeit it can be roped in only u/s 153C.

If on overall appreciation of the scheme of assessment / reassessment of income after the income-tax searches on the assessee searched and also for the persons not searched based on detection of some incriminating information during the said searches conducted upto 31/03/2021, the following legal course of action is open for the AOs, which can be summed up, in the following manner: It is mandatory for the AO of the person searched to (i) make an assessment / reassessment of income of the said assessee u/s 153A of the Act for the 6 assessment years prior to the date of search and also for the extended 4 relevant assessment years, subject to fulfillment of the prescribed conditions for the same, on the basis of an income-tax search conducted on him. (ii) However, in the assessment / reassessment orders passed within the scope of section 153A of the Act, the AO cannot consider any undisclosed income detected by way of an incriminating information pertaining / relating to the said assessee, during an income-tax search conducted in the premises of some other assessee(s), even conducted at the same time or in some connected matter. In such a case where AO gets any information or material about any assessee from the search of some other person, he can, make assessment of the undisclosed income/ amount emanating from such information or material for the assessment / re assessment vide separate assessment / reassessment orders to be passed u/s 153A by taking recourse to the provisions of the section 153C of and others Mahesh Narayan Joglekar the Act. Because the cause of action for the said incriminating information for different amounts had originated in different search(es) in the different premises of other assessees and for the same, the mandatory route legislated u/s 153C of the Act must be followed. (iii) Further, an assessee can also be assessed multiple times u/s 153C r.w.s 153A of the Act, despite having already been assessed u/s 153A of Act on the basis of an income-tax search in his premises, where the incriminating information has been received u/s 153C of the Act by the AOs of the searched person as well as of the person not searched, which information originates in different searches at different times on different persons as well.

The ld. counsel also he relied on the judgments of the jurisdictional Bombay High Court in the case of Plus Paper Food Pac Ltd vs ITO 374 ITR 485(Bombay), and other judgments viz., Best Cybercity (India) (P) Ltd [2019]107 taxmann.com215(Delhi), Tajendra Kumar Ghai 2017-TIOL-961-ITAT-DEL, Piramal Enterprises Ltd 2017-TIOL-363-HC-MUM-IT,Bhanumati Malraj Kabali 2019-TIOL-289-HC-MUM-IT, Styric Chem (P) Ltd 2019- TIOL-2243-ITAT-DEL, Dr Ajit Gupta[2017] 79 taxmann.com 316 (Delhi), Kumar Dugar (HUF) (2008) 12 DTR (Del)(Trib) 16, Vithalbhai G Prajapati Vs ITO 2017-TIOL-1786-HC-AHM-IT, Inder Jeet, Sohna Gurgaon Shamshad Khan vs ACIT 2017-TIOL-1607-HC-DEL-IT, Natrajan Monie ITA No. 1817/Del/2017, MunniDevi 2016-TIOL-2475-ITAT-DEL. and others Mahesh Narayan Joglekar 12. He also pointed out that no copy of the actual approval granted by the PCIT u/s 151 of the Act was given to the assessee and what was given is a letter given approval in a consolidated list of 22 cases. This is a complete violation to the judgment of the Hon’ble Delhi High Court in the case of Sabh Infrastructure Ltd vs ACIT [2018] 99 taxmann.com 409 (SC) (DoD: 25/09/2017) approved by the Hon’ble Supreme Court in the said case as ACIT vs Sabh Infrastructure Ltd [2024] 159 taxmann.com 184 (SC) (DoD: 01/02/2024).

In rebuttal, the Ld. CIT DR did not controvert the facts as above however submitted that once the information was received that assessee has given cash loan to Evergreen Enterprises, based on seized material the AO is justified in reopening the case u/s 147. In so far as certain discrepancy pointed out by the Ld. Counsel for the assessee those are minor and trivial mistakes but fact of the matter is that there was concrete material before the AO to entertain reason to believe that assessee has given cash loan out his unaccounted income.

We have heard both the parties, perused the relevant facts and material referred to at the time of hearing. As pointed out by the ld. Counsel from the bare perusal of the reasons recorded it is seen that, there are number of infirmities as highlighted above. It clearly shows that there is non-application of mind on the facts and material coming on record. Apart from many errors one particular fact that the entire premise of which reopening has and others Mahesh Narayan Joglekar been done is that amount of Rs.30,00,000 which has been alleged to have been paid by the assessee to Mr Nilesh Bharani / Evergreen Enterprises did not even pertain to A.Y. 2011-12. On perusal of the said seized documents placed in the paper book, it is seen that the said amount falls in the period relevant to preceding A.Y.2010-11 because the date of alleged transaction was 20/01/2010 and this has also been mentioned on page No.28 of the assessment order in para 4.5 and also is relevant from the documents placed at page No.6 of the paper book. This addition itself could not have been made in A.Y.2011-12. This itself shows that there is no application of mind. We are also in agreement that the contention raised by the ld. Counsel that even the ld. PCIT while granting the approval u/s.151 has not seen these facts and particularly if the amount has been alleged to have been received or given to the firm Evergreen Enterprises in the impugned assessment years when the firm Evergreen Enterprises did not even exist at that time and how ld. AO could send reopening proposals in the assessment folders of a non- existing assessee. Thus, we hold that the reasons recorded u/s.147 is based on incorrect assumption of facts and therefore, the entire proceedings initiated vide notice u/s.148 is void ab initiO and is hereby quashed.

In so far as appeals relating to A.Y.2012-13 to 2018-19, it has been pointed out that the entire basis for the addition made by the ld. AO is documents seized during the course of search. The said documents have been referred and scanned in the and others Mahesh Narayan Joglekar assessment order for A.Y.2012-13 at pages 22 and 23. It refers to same documents seized from Mr Nilesh Bharani / Evergreen Enterprises wherein there is detailed list of lenders alongwith code, name, actual amount, contact person and contact number. The said material refers to the name of some person “S.M. Joglekar” from where ld. AO has inferred to be the name of the assessee because even according to ld. AO whose finding is based on alleged material seized, name of the assessee is not there. Thus, as per him, in the alleged material seized, name of the assessee is not at all there. Even in para 5.19, telephone diary seized also show alphabet “J”“J/ 71/SJ” where the name of assessee is not there. In fact, in respect of the alleged transaction of the assessee, added in the AY 2011-12, no code was there for the assessee but full name “M Joglekar” is mentioned. The learned counsel also mentioned that even if the assessee knew Mr SM Joglekar, in one manner or other, but undisputedly as per the information found during the course of search though denied by the assessee, and even if the contact number of the assessee is mentioned, yet as per the impugned material the same, the assessee was different and no amount could be assessed in respect thereof in his hands. The entire premise of the ld. AO is amount mentioned against such name and code that the cash loan was advanced by the assessee and found recorded from the material seized from the premises of Evergreen Enterprises. For the sake of ready reference table of such amount appeared in the various assessment years is as under:- and others Mahesh Narayan Joglekar Assessment Opening Cash loan Cash loan Balance year Balance given received outstanding during the back cash Loan year during the year Amt In Amt In Amt In '000 Amt In '000 '000 '000 2012-13 3000 3000 2013-14 3000 1500 4500 2014-15 4500 4500 2015-16 4500 4500 2016-17 4500 3000 1500 2017-18 1500 1500 2018-19 1500 1500 Total 4500 3000

Based on these entries he has held that interest earned and received in cash is also to be taxed as unexplained money in the hands of the assessee. Thereafter, ld. AO has referred to various statements etc., and has made addition of Rs.30,00,000/- based on these seized documents and also addition on account of interest on such loans.

On the other hand, ld. DR submitted that it is a matter of fact that there is a seized document which was found from Evergreen Enterprises there was clear cut evidence that the and others Mahesh Narayan Joglekar various persons have given cash loans to Evergreen Enterprises on interest. The seized document contains ledger accounts of the lenders of unaccounted money being lent and it also maintained different code for different persons. These documents duly corroborated with various statements, it is clear that these are unaccounted money given as cash loan to Mr Nilesh Bharani / Evergreen Enterprises, therefore, addition made by the ld. AO has to be confirmed.

We have heard both the parties and gone through the material referred to and the finding of the AO. From the bare perusal of the seized documents which have been scanned at page 23 and also list mentioned by the ld. AO in page 22, it is seen that the name mentioned as ‘S.M. Joglekar‟ with and with contact number. Nowhere this name or contact number pertain to the assessee because assessee is Mahesh N Joglekar and nowhere it has been brought on record whether S.M. Joglekar is the same as Mahesh N Joglekar. Further, there is a reference of some name Ramesh Gala, which also has no connection with the assessee. It is not the case here that this document is found or seized from the possession of the assessee, albeit from different person subjected to search, therefore for acquiring jurisdiction to assess u/s 153C, AO has to correlate that the seized ledger/document where name written is ‘S.M. Joglekar‟, pertains to assessee or it is some alias name of assessee. If the ld. AO is drawing some adverse inference based on these seized documents, at least he should have verified whether it actually and others Mahesh Narayan Joglekar pertains to the assessee or not? Because neither assessee’s name is Ramesh Gala nor S.M. Joglekar. Even in para 5.19 of the AO, telephone diary seized also show alphabet “J”“J/ 71/SJ” where the name of assessee is not there. Once there is no name mentioned of the assessee in the seized documents then, it cannot be said that it is an incriminating material to rope in any addition in the name of the assessee.

After considering the above facts on record, we are of the firm view that irrespective of the other issues, since the amounts assessed in the hands of the assessee did not pertain to him at all, the additions made for the alleged amount of loan lent in cash and estimated interest earned thereon cannot be sustained and otherwise also for all the assessment years there is no other incriminating material in respect of the assessee is there or referred by the AO. Accordingly, we hold that irrespective of various other issues and contentions raised, once the amount which has been assessed in the hands of the assessee did not pertain to him, consequently addition made on account of alleged amount loan lent in cash and estimated interest and thereon cannot be sustained and same is deleted.

On this ground alone the additions made in A.Yrs 2012-13 to 2018-19 which is based on same seized documents wherein name of the assessee is not mentioned is deleted. and others Mahesh Narayan Joglekar 21. Since, all the above appeals have been decided on the above grounds by deleting the additions, other grounds taken by the assessee have become academic and not adjudicated for any of the above assessment years.

In the result, appeals filed by the assessee are allowed.