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Facts
The assessee, Raghuvir Retailers Pvt. Limited, filed a NIL return for A.Y. 2012-13. Reassessment proceedings were initiated under Section 148, alleging escaped assessment, based on bank transactions and an alleged Rs. 25 Lakh credit from R.K. Enterprise, which the assessee denied. The Assessing Officer added Rs. 1,61,48,750/-, representing the peak balance in the assessee's bank account, as unexplained cash credit under Section 68, stating the assessee was not engaged in regular business activities and had not explained the transactions. The assessee challenged the validity of the reassessment proceedings and the addition.
Held
The Ld. CIT(Appeals) allowed the assessee's appeal, deleting the addition of Rs. 1,61,48,750/- made under Section 68. The CIT(A) found that the reassessment proceedings were bad in law as the 'reason to believe' recorded by the AO was mechanically flawed and factually incorrect, and the original ground for reopening did not survive. The Tribunal upheld the order of the Ld. CIT(Appeals), finding no infirmity in it, and accordingly dismissed the Revenue's appeal.
Key Issues
1. Validity of reassessment proceedings initiated under Section 148 based on mechanically flawed and factually incorrect 'reason to believe'. 2. Justification of addition made under Section 68 for unexplained cash credit (peak bank balance).
Sections Cited
148, 143(2), 142(1), 133(6), 68, 147, 139(1), 143(3)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, ‘D’ BENCH, KOLKATA
Before: Shri Rajesh Kumar & Shri Pradip Kumar Choubey
Per Pradip Kumar Choubey, Judicial Member:- The present appeal is preferred by the Revenue against the order of Id. Commissioner of Income Tax (Appeals), National
Brief facts of the case are that the assessee being a Company filed its return of income for the A.Y. 2012-13 declaring total income at NIL. It appears that during the assessment year 2012- 13, the assessee-Company has escaped assessment. Accordingly, a notice under section 148 of the Act was issued and in response to the same, the assessee filed its return of income declaring total income at NIL. A notice under section 143(2) was issued and in response to the same, the assessee submitted Balance-sheet and Profit & Loss Account. Thereafter notice under section 142(1) of the Act was issued. Notices under section 133(6) were also issued to the parties, but the same were returned back. The ld. Assessing Officer found from the Balance-sheet and Profit & Loss Account that the assessee was not involved in any regular business activities from the assessment year 2012-13. However, from the Bank Statement, it appears that regular transactions took place in the said account and annual turnover do not match with the Profit & Loss account. The ld. Assessing Officer has further observed that the assessee did not come forward with any explanation so the peak balance of the account as on 21.03.2012 being Rs.1,61,48,750/- has been treated as the assessee’s current year’s income. Accordingly show-cause notice was issued and asked the assessee to explain why the peak balance of above rupees should not be added to the total income of the assessee under section 68 of the Act, but no response has been submitted by the assessee.
Aggrieved by the order of the ld. Assessing Officer, the assessee preferred an appeal before the ld. CIT(Appeals), wherein the appeal of the assessee has been allowed on legal grounds as the reason to believe as recorded by the ld. Assessing Officer was in mechanical fault.
Being aggrieved and not being satisfied with the order of ld. CIT(Appeals), the Revenue preferred an appeal before us.
The ld. Departmental Representative has taken the following grounds of appeal:- (1) Whether on the facts and circumstances of the case and in law, the ld. CIT(A) erred in deleting the addition of Rs.1,61,48,750/- made u/s 68 of the Act without going into the merits of the case based on unexplained fund deposits, unestablished identity, genuineness and creditworthiness of the creditors. The only economic rationale behind such transaction is to provide accommodation entries for brining back the unaccounted money/fund of the clients to their regular books of account. (2) Whether on the facts and circumstances of the case and in law, the ld. CIT(A) erred in ignoring the fact that the amount of Rs.25,00,000/- was indeed credited in the bank account of the assessee vide account no 001783800006069 on 20.03.2012 from R.K. Enterprise during the FY 2011-12 relevant to AY 2012-13, which was the reason for reopening of the case u/s 147 of the Act. (3) That the ld. CIT(A) erred in law and on the facts and circumstances of the case without considering the assessee’s submission dated 10.12.2019 where the assessee admitted that the bank account no. 001783800006069 was issued for accommodation (A.Y. 2012-2013) Raghuvir Retailers Pvt. Limited entries and the assessee also offered 0.10% of the entire deposits in the bank account as income for taxation through the submission was furnished after the completion of the assessment proceedings u/s 147 of the Income Tax Act, 1961. (4) Whether on the facts and in the circumstances of the case, the Hon’ble ITAT has erred in deleting the addition made by the AO u/s 68, which were based on the probability of surrounding circumstances, wherein the transactions were blatantly suspicious and the rules of suspicious transactions apply, as has been held in the case of Hersh W. Chadha -vs.- Deputy Director of Income Tax, Circle- 1(1), International Taxation [2011] 9 taxmann.cm
1. (Delhi)/[2011]
43. SOT 544 (Delhi)/[2011] 135 TTJ 513 (delhi). (5) whether on the facts and circumstances of the case and in law, the ld. CIT(A) has erred in facts and in law in not appreciating the judicial principles laid down in the matter of Pr. CIT -vs.- Swati Bajaj reported in [2022] 139 taxmann.com 353 (Cal.)/446 ITR
56. (Cal.), wherein the Hon’ble High Court at Calcutta laid down guidelines on the manner in which the allegation against the assessee has to be considered. (6) Whether on the facts and circumstances of the case, and in law, the ld. CIT(A) has failed to appreciate the judicial principles laid down in the matter of Sumati Dayal -vs.- CIT [1995] 214 ITR 801 (SC) and also in the matter of CIT -vs.- Durga Prasad More [1973 CIT (SC) 500] : [1971]
82. ITR 540 (SC). (7) The appellant prays that the tax effect in the instant case is 52,39,462/- which is below the monetary limit prescribed by the CBDT Circular No. 9/2024 dated 17.09.2024. However, it is humbly prayed that the case falls within the exception clause 3.1(h) of Circular No.05/2024 dated 15.03.2024 as a modus operandi of evasion is involved in the case, meaning thereby that large amounts of money have been brought to the books /system of the assessee company in highly suspicious circumstances.
The ld. Authorized Representative of the Revenue has also cited a decision dated July 17, 2014 of the Hon’ble Punjab (A.Y. 2012-2013) Raghuvir Retailers Pvt. Limited & Haryana High Court in the case of CIT -vs.- Mehak Finvest (P) Limited reported in [2014] 52 taxmann.com 51 (P&H). He also relied on the decision of Hon’ble High Court of Karnataka passed on July 1, 2015 in the case of N. Govindaraju -vs.- ITO, Ward-8(2), Bangalore reported in [2015] 60 taxmann.com 333 (Karnataka). Contrary to that, the ld. A.R. supports the impugned order by submitting that the ld. Assessing Officer did not provide the assessee copies of the material relied upon, enquiry made before initiation of reassessment proceeding, approval taken from the prescribed authority for initiation of reassessment proceeding and the reasons recorded, hence, entire reassessment proceedings are factually incorrect and bad in law. He has placed several decisions of the Hon’ble High Court and submits that the ld. CIT(Appeals) has passed the order in favour of the assessee after going over the cited decisions and facts of the case of the assessee. His further submission is that the reassessment proceedings initiated merely on the basis of the information received without application of mind, hence, that is bad in law. According to him, the ld. CIT(Appeals) has passed the order after going over the several judicial pronouncements, hence need not required to be interfered.
Upon hearing the submissions of the ld. Counsel of the respective parties, we have perused the impugned order and found the admitted fact, which is as under:- Sr.No. Date Particulars Page Page from upto 1. 24.09.2012 Assessee filed return u/s 01 01 139(1) 2. 29.03.2019 Notice issued u/s 148 02 02 (A.Y. 2012-2013) Raghuvir Retailers Pvt. Limited 3. 26.04.2019 Assessee filed return in 03 03 response to notice issued u/s 148 4. 29.04.2019 Assessee filed reply to notice 04 04 issued u/s 148 asking for reasons recorded for reopening 5. 10.05.2019 AO issued notice providing 05 06 reasons for reopening 6. 05.07.2019 Notice issued u/s 143(2) 07 07 7. 22.07.2019 Assessee filed reply in 08 09 response to notice issued u/s 143(2) along with audited financial statement 10 26 of assessee company computation of income of 27 27 assessee-company IT return of assessee 28 50 ITR acknowledgment of 51 51 assessee-company 8. 23.07.2019 Notice issued u/s 142(1) 52 54 9. 20.08.2019 Assessee filed reply in 55 55 response to notice issued u/s 142(1) 10. 05.09.2019 Notice issued u/s 142(1) 56 57 10.09.2019 Assessee filed reply in 58 58 response to notice issued u/s 142(1) 02.12.2019 SCN issued 59 63 06.12.2019 Assessee filed request for 64 64 adjournment 06.12.2019 Order passed u/s 143(3) 65 72 06.12.2019 DIN intimation letter for order 73 73 u/s 143(3)
Going over the facts of the case and the impugned order, it is an admitted fact that the reasons were recorded, which is apparent from the reassessment proceedings in respect of the alleged receipts from M/s. R.K. Enterprises by the assessee-company. It is pertinent to mention here that the assessee has clearly stated that it had not entered into any transaction with the alleged entity during the financial year 2011-12. Since the very reason for which (A.Y. 2012-2013) Raghuvir Retailers Pvt. Limited the reassessment proceedings have been initiated is non-est. The entire reassessment proceedings are bad in law. It has been held by several judicial pronouncements that has been discussed by the ld. CIT(Appeals) in his order, which is as under:- In Oriental Insurance Co. Ltd. v CIT [2015] 378ITR 421 (Delhi) it was held as under:- “The assumption that the assessee had not credited the profits in question to the Profit and Loss Account was also found, factually incorrect. Thus, the reasons which led the Assessing Officer to form a belief that income of the assessee had escaped assessment are admittedly based on palpably incorrect assumptions. It is well established that reasons to believe that income had escaped assessment is a necessary pre-condition for the Assessing Officer to assume jurisdiction. Clearly, it would be difficult to sustain that this precondition is met if such reasons to believe that income of an assessee has escaped assessment are based on palpably erroneous assumptions.’’ Sunbarg Tradelink Pvt. Ltd. v ITO reported in [2016] 74 taxmann.com 16 (Gujarat) Head Notes Section 68, read with sections 147 and 148 of the Income-tax Act, 1961 - Cash credit (Accommodation entries) - Assessment year 2008-09 - Assessee filed its return of income which was accepted without scrutiny - Assessing Officer issued impugned notice to reopen assessment on ground that as per information, assessee company had received share capital and share premium of Rs. 20 lakhs from entities managed and controlled by one PR during year under consideration which were merely accommodation entries against cash receipts from assessee company - Assessee however, in its objection letter to Assessing Officer stated that it had not received any such share capital or share premium from any of companies having any connection with PR and alongwith this letter, assessee also provided share capital account of company for verification - However, instead of examining such an objection, Assessing Officer conveyed that in absence of supporting documents accompanying share capital account and bank statement same could not have been relied on - Whether on perusal of order of assessment it was evident that Assessing Officer straightaway added a sum of Rs. 20 lakhs to total income of assessee without even once pointing out source for such addition - Held, yes - Whether thus it was 7 (A.Y. 2012-2013) Raghuvir Retailers Pvt. Limited clear that Assessing Officer had no material to suggest that assessee company had received accommodation entries against cash receipts from entities, and notice for reopening assessment was based on completely wrong reasons and had to be set aside - Held, yes [Paras 10, 13 & 14] In Shri Niranjan Das v ITO dated 31.10.2018 it was held as under: "7. From the above, it is clear that the Assessing Officer has mentioned that the assessee is not assessed to tax. This is factually incorrect as Exhibit 1 shows that the assessee has filed return of income on 29.09.2010 electronically.
11. All these facts when considered with reasons recorded for reopening of the assessment would lead to only one conclusion that the reasons recorded for reopening the assessment are devoid of any application of mind. In our considered opinion, such reopening cannot be upheld. We, accordingly, quash the notice u/s 148 of the Act thereby quashing the assessment order so framed. Since we have quashed the assessment order, we do not find it necessary to dwell into the merits of the case." In Vijay Harishchandra Patel vs. ITO (2018) 400ITR 167 (Guj.) (HC) it was held that: “When the original ground for reopening the assessment did not survive, the Assessing Officer had sought to proceed further with the assessment on totally different grounds, which was impermissible. Despite the fact that the assessee had duly submitted that he had filed his return, wherein the very same issue had been examined, instead of dropping the proceedings, the Assessing Officer had sought to proceed further for reasons which were alien to the reasons recorded for reopening the assessment. Thus the very intent and purpose behind submitting the objections by an assessee and passing an order thereon, was Page 26 of 59 frustrated. Considering the fact that a return had been fled disclosing the sale of the immovable property, the very foundation on which the reopening of the assessment was based, in the reasons recorded was unsustainable. Therefore, on the reasons recorded, the Assessing Officer could not have formed the belief that income had escaped assessment, inasmuch as such belief had been 8 (A.Y. 2012-2013) Raghuvir Retailers Pvt. Limited formed on a factually incorrect premise. The notice, dated March 31, 2017, issued under section 148, for reassessment, was to be quashed" In Rajender Kumar Sehgal W.P.(C) 11255/2017, CM No.46017/2017 Date of Decision: 19.11.2018 the Hon'ble Delhi High Court held that as under:- “11. As far as the second argument, with regard to the clarification is concerned, this court is unpersuaded by the revenue’s argument. The petitioner's objection that the transaction with an entity attributed to the deceased was unsupported by the books furnished to the revenue was straightaway rejected. However, the “reasons to believe" are premised upon such a transaction with one Varun Capital Services Ltd. (as is evident from the table at Appendix B to that document). After rejection, of the objection, which meant that according to the revenue, such a transaction was indeed recorded in the deceased's books, the revenue attempted to “correct” the “error" by changing the name of the entity (with whom the suspect transaction occurred). This court is of opinion that such “correction” is neither innocuous nor innocent; it was clearly aimed at improving what was a fatally defective “reasons to believe” and mask the reality, to wit, that the revenue authorities utterly failed to apply their minds to the facts and Page 27 of 59 circumstances of the case. On the last issue, i.e. the fatality attached to the completed reassessment in the absence of a notice under Section 143 (2), this court notices that the omission renders the assessment (or reassessment as in this case) void a proposition of law enunciated in Asstt. CIT v. Hotel Blue Moon (2010) 321 ITR 362.
In view of the foregoing conclusions, the impugned reassessment notice and all consequent proceedings- including the reassessment order-have to be and are, hereby quashed. The writ petition is accordingly allowed, but without order on costs". Here also we find that Id CIT(A) has tried to make such “correction” which is neither innocuous nor innocent; as it was clearly aimed at improving what was a fatally defective “reasons to believe" and mask the reality, to wit, that the revenue authorities utterly failed to apply their minds to the facts and circumstances of the case." In Rajendra Amin in ITA 2880/Ahd/2015 order dated 30.11.2016 it was held as under: 9 (A.Y. 2012-2013) Raghuvir Retailers Pvt. Limited “4. We have heard both the sides. Case file perused. It is not is dispute that the Assessing Officer's main ground as extracted hereinabove is that the assessee had not filed his return for the impugned assessment year. The same turns to be contrary to page (s) 16 to 18 of the paper book wherein the assessee's return in question is stated to have been filed on 19.12.2011 declaring total income as Rs.27,02,520/- including long term capital gains of Rs.35,35,765/- on sale of the impugned immovable Page 28 of 59 property in question. The Assessing Officer’s order dated 09.02.2015 disposing of assessee’s objection to reopening reads that the said return had not been filed u/s.139(1) of the Act. The CIT(A) on the other hand is of the view that the said return was not filed with the Assessing Officer issuing Section 148 notice. The fact however remains that the filing of assessee's return in question (supra) is not otherwise in dispute. We put up a specific query to Ld. Departmental Representative to prove that assessee’s residential status or his ward is different in the above stated return or in Section 148 notice or in reassessment. He could not point out such difference. It has further come on record that assessee had also received acknowledgement of his return from department’s end forming part of the paper book. We quote hon’ble jurisdictional high court in Special Civil Application No.15475/2015 Manish Kumar Pravinbhai Kiri vs. ACIT decided on 11.01.2016 holding that the only reason of non-filing of return forming basis of the impugned reopening in such circumstances stands belied. We thus accept assessee’s challenge to validity of the reopening and conclude that the Assessing Officer’s above stated reasoning goes contrary to the record. The same is accordingly quashed rendering assessee’s other ground on merits as infructuous. We find this decision is also applicable to present facts fully."
We have gone through the order passed by the ld. CIT(Appeals) and the relevant portion of the order of ld. CIT(Appeals) is reproduced as under:- “5.4. (a) As noticed from the assessment order, the appellant had filed return of income declaring income at Rs. Nil on 24.09.2012 for the year under consideration. Subsequently, the case of the appellant was reopened u/s 147 of the Act and notice u/s 148 of the Act dated 29.03.2019 was issued to the 10 (A.Y. 2012-2013) Raghuvir Retailers Pvt. Limited appellant. In response to the same, the appellant filed ITR on 26.04.2019declaring income at Rs. Nil. During the proceedings, the appellant furnished the copy of balance sheet and profit and loss a/c but has not furnished the copy of bank statement. The appellant has also stated that no transactions had been made by the appellant company with the parties as mentioned in notice u/s 142(1) of the Act. Notice u/s 133(6) was also issued to the related parties through speed post but the same returned back. The AO obtained the bank statement of bank account No 001783800006069. On perusal of the Balance sheet & Profit and loss account, the AO observed that the appellant was not involved in any regular business activities during the year under consideration. However, from the bank statement, it was observed by the AO that regular transactions took place in the said account and annual turnover do not match with the P&L account. Further, on perusal of bank statement, If was also observed by the AO that the money was credited in the bank account of the appellant and immediately transferred to the other account and since, the appellant had not justified the transactions, the AO made the addition of peak balances of the account as on 12.09.2012 of Rs.1,61,48,750/- as unexplained cash credits u/s 68 of the Act. (b) During the appellate proceedings, the appellant filed submission vide letter dated 01.07.2024 submitting written submissions and other relevant documents in written submission, the appellant has submitted that the grounds on jurisdictional issues regarding validity of reassessment proceedings being without jurisdiction, regarding ’approval not taken from the prescribed authority for initiation of reassessment proceedings. The appellant has relied upon various case laws and challenged the validity for initiation of reassessment proceedings. Further, the appellant has also raised grounds that the reasons recorded for reassessment proceedings in respect of alleged receipts from M/s. R.K. Enterprise by the assessee company. In this regard, the assessee stated that it had not entered into any transactions with the alleged entity during the FY 2011-12. As such the very reason for which re-assessment proceedings have been initiated is factually in correct in as much as non-est. Since the very reason for which the reassessment proceedings have been initiated is nonest, hence, the entire reassessment proceedings are bad in law and ab initio void. The appellant also submitted that in the present case, the reassessment proceedings have been initiated for the reasons of receipt of Rs. 25 Lakh from R. R7 Enterprises whereas no such amount has been received. As a result, no addition has been made on such account. Since there is no addition on the issued for 11 (A.Y. 2012-2013) Raghuvir Retailers Pvt. Limited which the reassessment proceedings have been initiated, no other addition can be made. On this ground, the appellant has placed reliance on various judicial decision. The appellant has also relied upon the decision of the Hon’ble jurisdictional Calcutta High Court in the case of Hotel Regal International & Anr. vs. ITO [2010] 320 ITR 573(Cal.)(HC), wherein the Hon’ble Court held as under:- “3. So far as the first issue is concerned the answer has to be in the negative. Since the petitioners were called upon to file objection to the notice under section 148 proposing to reopen the assessment on the ground a sum of Rs.73,219 had "escaped income", the respondents cannot shift their stand and pass an order on the ground of "concealment of investment" as the petitioners had no opportunity to file objection regarding such "concealment". (c) From the perusal of Assessment order as well as the “reasons to belief’ as recorded by the Assessing office vide letter No. ITO/Ward (6)(4)/KOL/u/s148/2019-20/28 dated 10.05.2019 it is clearly evident that the AO has formed the basis of the funds— transferred from R.K. Enterprises to the Appellant amounting to Rs.25,00,000/- as sole reason for reopening the assessment and concluded that “Therefore I am of the considered view that assessee company has received its unaccounted money amounting to Rs. 25,00,000/- during the financial year 2011-12 relevant to AY 12-13 through accommodation entry. In view of the above, I have reasons to believe that income has escaped assessment within the meaning of section 147 of the Act for the AY 2012-13 to the tune of Rs. 5,00,000/-” (d) However, in the Assessment order the AO proceeded to add the peak balance in the - bank account amounting to Rs.1,61,48,750/- as unexplained cash credit within the meaning of section 68 of the Act. (e) In light of the above I found merit in the submission of the Appellant as well as of the considered opinion that the ratio provided by Honourable Calcutta High Court in the Case of Hotel Regal International & Anr. vs. ITO [2010] 320 ITR 573 (Cal.)(HC), being the jurisdictional High Court is squarely applicable in the case of the Appellant. Respectfully, following the decision of Honourable High Court I hold the order passed under section 143(3) rws147 of the Act as bad in law, and, hence the addition amounting to Rs.1,61,48,750/- as unexplained cash credit within the meaning of section 68 of the Act is liable to be deleted.
Going over the facts of the case as well as the order passed by the ld. CIT(Appeals), we do not find any infirmity in the impugned order. Accordingly, the grounds of appeal of the Revenue are hereby dismissed.
In the result, the appeal filed by the Revenue is dismissed. Order pronounced in the open Court on 11/08/2025.