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Income Tax Appellate Tribunal, “D” BENCH, MUMBAI
Before: SHRI ABY T. VARKEY, HONBLE & SHRI S. RIFAUR RAHMAN, HONBLE
These appeals are filed by the assessee against different orders of the Learned Commissioner of Income Tax (Appeals)–50, Mumbai [hereinafter in short “Ld.CIT(A)”] dated 10.03.2017 for the A.Y. 2006-07.
Assessee has filed following grounds of appeal in ITA.No. 3771/Mum/2017 relating to A.Y. 2006-07: - “1. The Learned Commissioner of Income-tax (Appeals) erred in upholding the validity of notice under Section 153A of the Act and the order passed by the Learned Assessing Officer under Section 153A r.w.s. 143(3) of the Act on the ground that the Appellant did not object to the notice under section 153A of the Act and no submissions were made during the course of appeal proceedings. It is submitted that a notice under Section 153A of the Act can be issued only if a search is initiated under Section 132 of the Act on the appellant. The Appellant had explained the status of proceedings. In absence of a search, the notice issued under Section 153A of the Act and the subsequent assessment order passed under Section 153A r.w.s. 143(3) of the Act are bad in law and ought to be cancelled.
2. The Learned Commissioner of Income-tax (Appeals) without disposing the specific ground raised, erred up holding the order of Learned Assessing Officer passed without furnishing the information/details purported to have been received by him before using the same against the appellant. It is submitted that the learned Assessing Officer has made huge additions under Section 69A of the Act to the Returned Income of the Appellant without giving any opportunity to the Appellant to make his submissions in the matter. The order passed based the information/details which were never made available to the appellant and without affording an opportunity to the appellant is against the natural justice and is had in law and ought to be cancelled.
3. The Learned Commissioner of Income-tax (Appeals) erred in upholding the order passed by Learned Assessing Officer assessing the appellant in the status of "Resident" under Income-tax Act, 1961. It is submitted that in accordance with the provisions under Section 168 r.w.s. 6 of Income-tax Act, 1961 the appellant is a "non-resident" as claimed in the return of income. The appellant has furnished all details as available to establish the status of the "Estate" as non- resident and as such there is no reason to for the learned Assessing 3 & 4095/MUM/2017 (A.Y: 2006-07) Estate of Late Shri Ramniklal Mehta Officer to take a contrary view without bring any material evidence to negate the claim of the appellant.
The Learned Commissioner of Income-tax (Appeals) erred in upholding the addition of Rs.1,88,65,84,826/- made under Section 69A of the Act to the Returned Income. It is submitted that the appellant does not own any such money as alleged by the learned Assessing Officer as such there is no reason to make such huge addition under Section 69A of the Act. Learned Assessing Officer failed to bring any material on record to suggest that the Appellant owns the said money. The addition made by the Learned Assessing Officer is based on conjectures and surmises and is contrary to the facts. The addition made is bad in law and ought to be deleted.
The Learned Assessing Officer in proceedings under Section 153A of the Act, erred in adding Rs.188,65,84,826/- to the returned income. It is submitted that no addition can be made to the returned income other than the income determined on the basis of incriminating document/evidences found during the course of search. No evidence of what so ever in nature relating to the impugned addition was found the course of search. Impugned addition made in proceedings under Section 153A of the Act is without jurisdiction and bad in law.
The learned Assessing Officer erred in levying interest under Section 234B of the Act. It is submitted that the Appellant is not liable to pay interest under Section 234B of the Act. The appellant reserves the right to add, to alter or amend the grounds of appeal.”
3. At the time of hearing, Ld. AR of the assessee brought to our notice that Ground No. 4 and 5 which is relating to merits of the addition made by the Assessing Officer u/s. 69A of the Income-tax Act, 1961 (in short “Act”) and also the addition made by the Assessing Officer u/s. 153A of the Act in absence of any incriminating documents/evidences being found
4 & 4095/MUM/2017 (A.Y: 2006-07) Estate of Late Shri Ramniklal Mehta during the course of the search. He submitted that the above two issues are covered in favour of the assessee by the orders of the Tribunal in group cases wherein similar additions were made and it is relevant to refer those decisions. He submitted that the above said group orders of ITAT are placed on record in the form of Paper Book.
4. With regard to Ground No. 1, 2 and 3 are concerned which are relating to jurisdictional issues and Assessing Officer has not extended/afforded any opportunity to the assessee before passing the order which is against the natural justice and bad in law, for which he submitted that Ld.CIT(A) has failed to adjudicate or inappropriately considered. In this regard he submitted as under: - “a) By ground No. 1 in the appeal, the Appellant urged that Late Shri Ramniklal Rajmal Mehta has passed away on 07/04/2002, while the search action has been carried out on 25/08/2011. Therefore, search action has been carried out on a dead person. In this regard attention is invited to Panchanama at Page 1 of the paper book which shows that the search action was on Mr. Ramniklal Rajmal Mehta. It is fundamental principle that a search cannot be carried out on a dead. person. Hence, the consequential order passed under section 153A of the Act is also invalid. The said issue has been dealt with by the CIT(A) in paragraph 5 at page 4 of his appellate order. The Appellant submits that finding given by him to the effect that it did not make any submission in this regard is factually incorrect. Though no written submissions have been filed with the CIT(A) on any ground, all the grounds have been argued before him. b) By ground No. 2 of the appeal, the Appellant has urged that the AO had passed the assessment order without furnishing the 5 & 4095/MUM/2017 (A.Y: 2006-07) Estate of Late Shri Ramniklal Mehta information/details relied upon by him. The Appellant had inter alia relied upon letter dated 27/12/2011 from Mr. Karl French of White Cedar Investments Ltd. to the effect that he held only 5.73% of the corpus in the said company. However, relying on information received by the AO from the Spanish. Tax Authorities in response to the reference through FT of TR division of CBDT, he has observed that the authenticity of the aforesaid letter has not been established. Consequently, he has assessed the entire balance in the bank account held by White Cedar Investments Limited with HSBC Bank in Geneva as taxable in his hands. The said information has not been provided to the appellant till date. The CIT(A) in his appellate order in paragraph 8 at pages 16 to 18 had upheld the assessment at 100% on the ground that the appellant had not shown that he owned only 5.73% of the corpus. It is submitted that certificate from White Cedar Investments Ltd. would be the best evidence in this regard which clarifies that the Appellant held only 5.73% of the corpus. Without providing the information received from the Spanish Tax Authorities to the appellant, it is submitted that the AO and the CIT(A) could not have relied on the same to come to this conclusion. c) By ground No. 3, it is urged that the Appellant is to be regarded as a non-resident in India as per section 168 read with section 6 of the Act as Late Shri Ramniklal Mehta was non-resident in assessment year 2002-03 i.e., the year in which he passed away. The CIT(A) has dealt with this issue in paragraph 6 at pages 4 to 6 of his appellate order, wherein he has held that the appellant has not discharged the onus with documentary evidence. Though the passport of Late Shri Ramniklal Mehta is not available, the Appellant has placed the necessary facts for consideration in an affidavit before the AO and CIT(A). They have adjudicated on this issue without dealing with the said affidavit.
In view of the above, the Appellant most respectfully submits that the issues arising in grounds 1 to 3 which are preliminary in nature have either not been adjudicated or not appropriately dealt with by the CIT(A). In view thereof, the Tribunal may be pleased to set aside the appellate order and remit the matter back to him for re-consideration. Consequently ground Nos. 4 and 5 of the appeal may also be dealt with by him after considering grounds 1 to 3 herein.”
6 & 4095/MUM/2017 (A.Y: 2006-07) Estate of Late Shri Ramniklal Mehta 5. On the other hand, Ld.DR objected to the above submissions and however, relied on the orders passed by lower authorities.
6. Considered the rival submissions and material placed on record, we observe that Ld.CIT(A) even though considered the submissions made by the assessee, however, Ld. AR brought to our notice that Ld.CIT(A) has ignored or failed to adjudicate on the following issues which is relevant and at the same time does not satisfy the overall justice. With regard to Ground No. 1 raised by the assessee it is brought to our notice that the search action was carried on a dead person and Ld. AR brought to our notice Panchanama in this regard. Ld. AR also brought to our notice that Late Shri Ramniklal Mehta was passed away on 07.04.2002 whereas the search was carried on 25.08.2011. Therefore, the search cannot be initiated on a dead person. This is very relevant and which goes to the root of the initiation of the search proceedings and Ld.CIT(A) has not adjudicated on this ground. Therefore, we are inclined to accept the submissions of the Ld. AR and accordingly this issue is remitted back to the file of the Ld.CIT(A) with a direction to adjudicate on this important issue.
7 & 4095/MUM/2017 (A.Y: 2006-07) Estate of Late Shri Ramniklal Mehta 7. With regard to Ground No. 2 it is brought to our notice that Assessing Officer has completed the assessment without furnishing information/details relied upon by him. With regard to investment made by the assessee in White Cadar Investments Ltd., based on the letter from Mr. Karl French, we observe that this issue also was not adjudicated by Ld.CIT(A) that Assessing Officer has not submitted the relevant information received from Mr. Karl French without giving proper opportunity to the assessee. Further, with regard to Ground No. 3 it is brought to our notice that Late Shri Ramniklal Mehta was a “non-resident” in A.Y. 2002-03 i.e. in the year in which he passed away. Even though Ld.CIT(A) dealt this issue, however, he dismissed the submissions of the assessee with the observation that assessee has not discharged onus with documentary evidences. Even though the passport of Late Shri Ramniklal Mehta is not available, assessee has placed necessary facts for consideration in an affidavit before Assessing Officer and Ld.CIT(A). However, Ld.CIT(A) has not adjudicated on this issue without properly dealing with the above said affidavit. Therefore, we remit this issue back to the file of the Ld.CIT(A) with a direction to adjudicate on these three grounds afresh, after giving proper opportunity of being heard to the legal
8 & 4095/MUM/2017 (A.Y: 2006-07) Estate of Late Shri Ramniklal Mehta heir of Late Shri Ramniklal Mehta. Accordingly, Ground Nos. 1, 2 and 3 raised by the assessee are allowed for statistical purpose.
ITA.NO. 4095/MUM/2017 (A.Y. 2006-07)
With regard to appeal in ITA.No. 4095/Mum/2017 for the A.Y.2006- 07, the above appeal is filed by the assessee against the CIT(A) order on penalty on the additions made. However, we have remitted the above said issues back to the file of the Ld.CIT(A) to adjudicate the same afresh. Accordingly, this appeal also remitted back to the file of the Ld.CIT(A) to adjudicate the same after considering the outcome of the quantum appeal. Accordingly, this appeal is allowed for statistical purpose.
In the result, appeals filed by the assessee are allowed for statistical purpose.
Order pronounced in the open court on 25th August, 2022.