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Income Tax Appellate Tribunal, DELHI BENCH ‘G’ : NEW DELHI
Before: SHRI KULDIP SINGH & DR. B.R.R. KUMAR
PER KULDIP SINGH, JUDICIAL MEMBER
Appellant, ACIT, Central Circle 15, New Delhi (hereinafter referred to as ‘the Revenue’) by filing the present appeal sought to set aside the impugned order dated 20.08.2015 passed by the Commissioner of Income-tax (Appeals)-XXVI, New Delhi qua the assessment year 2009-10 on the grounds inter alia that :-
“1. Whether on the facts and in the circumstances of the case learned CIT(A) is right in holding that approval obtained u/s 153D of the I.T. Act from Addl. CIT of the Range was invalid under the law?
2. Whether on the facts and in the circumstances of the case the learned CIT(A) is right in holding that notice u/s 143(2) was not served in time? 3. Whether on the facts and i the circumstances of the case the learned CIT(A) is right in deleting the addition of Rs. 5 crore made u/s 68 of the Act and was correct in accepting the creditworthiness if the party? 4. Whether on the facts and in the circumstance of the case the learned CIT(A) is right in deleting the addition of Rs.3.5 crore when the same was surrendered u/s 132(4) of the Act and subsequently retracted which was an afterthought on the part of the assessee? 5. Whether on the facts and in the circumstances of the case the learned CIT(A) has erred in deleting the addition of Rs.80,47,690/- made by the AO on account of bogus purchases from M/s Rash Textiles? 6. That the CIT(A) has erred on facts in deleting the addition of Rs.7,00,000/- without properly appreciating the terms of the agreement entered into between the assessee and MPPL as no stipulated dates for payment of money had been fixed. 7. That CIT(A) has erred on facts is wrongly observing that the AO had made enquiries u/s 133(6) to cross verify the claim of the assessee with regard to receipt of advance of Rs.7,00,000/- by the assessee.”
Briefly stated the facts necessary for adjudication of the controversy at hand are : Assessee filed return of income on 23.10.2009 at Rs.1,19,68,930/-. Notices under section 142(1)/143(2) of the Income-tax Act, 1961 (for short ‘the Act’) were issued on 18.10.2010 along with questionnaire requiring the assessee to furnish details. Assessing Officer (AO) noticed that during the year under assessment, the assessee has received a loan of Rs.5,00,00,000/- from Smt. Abha Bansal on 05.02.2009.
Assessee claimed that Smt. Abha Bansal lent the loan out of sale proceeds of the property sold by her for Rs.50-60 crores out of which assessee has already returned Rs.4,80,00,000/- and only Rs.20,00,000/- is outstanding. Assessee also offered PAN of Smt.
Abha Bansal. One Inspector Incharge was deputed to make enquires who has reported that Smt. Abha Bansal was not available at the given address. Then on receiving new address, notice u/s 131 of the Act was issued calling upon Smt. Abha Bansal to furnish her bank statement, ledger account of Shri B.K. Dhingra appearing in her books of account along with IT returns, balance sheet and profit & loss account, to which Smt. Abha Bansal sought 10 days time vide letter dated 23.12.2010 but subsequently Smt.
Abha Bansal claimed that she is unable to produce the bank statement. Assessee also shown his helplessness to produce Smt.
Abha Bansal as he has not cordial relations with her. Second summon was issued to Smt. Abha Bansal for her personal appearance on 27.121.2010 but she did not appear. Then a letter was written to ITO, Ward 1(1), Gurgaon who has informed vide letter dated 27.12.2010 and sent the downloaded copy of return from AST module which shows that the assessee has declared income of Rs.7,42,400/-. Return shows that Smt. Abha Bansal has no creditworthiness to lent such huge amount of Rs.5,00,00,000/-.
Therefore, it is held that neither the assessee has proved the identity and creditworthiness of his creditor nor has he produced the genuineness of the transaction. Consequently, amount of Rs.5,00,00,000/- is held to be unexplained cash credit entry added to the income of the assessee u/s 68 of the Act.
AO also made addition of Rs.3,50,00,000/- u/s 69A of the Act. AO further made addition of Rs.44,16,000/- as unexplained income u/s 69A of the Act. AO further made addition of Rs.80,47,690/- on account of unexplained expenditure by showing purchases from a fraudulent company/concern. AO further made addition of Rs.55,74,600/- as unexplained source of deposit in the bank account. AO also made addition of Rs.7,00,000/- u/s 68 of the Act having been received in cash from M/s. Mevron Projects (P) Ltd.. AO passed the assessment order at the income of Rs.10,98,32,574/- after obtaining prior approval of the Addl.
Commissioner of Income-tax, Central Range 2, New Delhi u/s 153D vide letter No.ADDL. CIT/CR-2/App. u/s 153D/2010-11/707 dated 24.12.2010.
Assessee carried the matter before the ld. CIT (A) by way of filing the appeal who has deleted the additions on the ground of invalid approval obtained u/s 153D of the Act as well as on merit.
Feeling aggrieved by the order passed by the ld. CIT (A), the Revenue has come up before the Tribunal by way of filing the present appeal.
We have heard the ld. Authorized Representatives of the parties to the appeal, gone through the documents relied upon and orders passed by the revenue authorities below in the light of the facts and circumstances of the case.
Undisputedly, no order of assessment shall be passed in case of search or requisition u/s 153A(1)(b) and 153B(1)(b) except with the prior approval of the Joint Commissioner or Addl.
Commissioner as required u/’s 153D of the Act. When we peruse the impugned assessment order passed by the AO, AO has categorically recorded the fact as to obtaining mandatory approval u/s 153D which is as under :-
“The assessment order is issued after obtaining prior approval of the Additional Commissioner of Income Tax, Central Range 2, New Delhi u/s 153D vide letter No. ADDL. CIT/CR-2/App. u/s 153D/2010-11/707 dated 24.12.2010.
The Revenue has not disputed the fact that AO passed the assessment order on the basis of prior approval dated 24.12.2010 as required u/s 153D of the Act.
The ld. DR for the Revenue contended that mandatory approval u/s 153D has been received by the AO during the course of passing assessment order and relied upon the order passed by the AO.
However, to repel the arguments addressed by the ld. DR for the Revenue, assessee relied upon the order passed by the ld. CIT(A) by contending that approval dated 24.12.2010 is an anti- dated exercise and as such a sham approval which has made the entire assessment proceedings null and void and drew our attention towards facts recorded by the AO as to effecting service of Smt.
Abha Bansal u/s 131 of the Act in para 2 of the assessment order which is extracted for ready perusal as under :-
“ During the year under consideration the assessee has received loan of Rs.5,00,00,000/- on 05.02.2009 from Smt. Abha Bansal. The assessee was asked to explain the same vide letter F.No.AAFPD2778P/CC-17/ACIT/153A/942 dated 24.11.2010. The assessee replied that Smt. Abha Bansal has given loan out of selling her property worth Rs.50-60 Crores. The assessee vide letter dated 09.12.2010 stated that he has returned back Rs.4.80 crore and Rs.20.00 Lacs is outstanding liability. The assessee vide letter dated NIL submitted on 14.12.2010 gave details of Smt. Abha Bansal. Again the assessee vide letter dated 15.12.2010 offered the PAN of Smt. Abha Bansal. The Inspector of this charge was deputed to make enquiries. The inspector reported that Smt. Abha Bansal was not available at the given address. After receiving new address from the assessee summons u/s 131 was issued and Smt. Abha Bansal was asked to submit her bank statement, ledger account of Sh. B.K. Dhingra appearing in her Books of accounts alongwith her I.T. returns, Profit & Loss account and Balance Sheet. Smt. Abha Bansal vide her letter dated 23.12.2010 sought time of 10 days. The assessee meanwhile again by his letter dated 20.12.2010 claimed that the bank statement of Smt. Abha Bansal could not he produced. He further stated that he cannot produce Smt. Abha Bansal as his relations are not cordial with her. Second summons was issued to Smt. Abha Bansal for her personal appearance on 27.12.2010. However, again Smt. Abha Bansal did not appear on 27.12.2010. Meanwhile a letter was written to ITO, Ward - 1(1) Gurgaon vide this office letter F.No.ACIT/CC-17/2010-11/1218 dated 20.12.2010. The ITO, Ward -1(1), Gurgaon vide his letter F.No.ITO/W-1(1)/~GN/10-11/2865-66 dated 24/27.12.2010 has sent the downloaded copy of return from AST module. From the copy of the return it is seen that the assessee has declared income of Rs.7,42,400/-. The return suggests that Smt. Abha Bansal has no creditworthiness of lending such a huge amount of Rs.5.00 crores . Therefore, it is held that the assessee has not been able to prove the identity and creditworthiness of his creditors Smt. Abha Bansal. Further, genuineness of the transactions is also not proved. The assessee does not know the specific details of Smt. Abha Bansal and there is no agreement also to show why this loan was taken. There are no earlier and later transactions with Smt. Abha Bansal. Thus, in a way the transaction is with a stranger for Rs.5.00 crores. The assessee has also not been able to prove that any security or collateral was issued by him.”
Bare perusal of para 2 of the assessment order, extracted above, containing sequence of notices issued to procure the presence of Smt. Abha Bansal go to prove that when the AO deputed Inspector Incharge to make enquiries, he has reported that Smt. Abha Bansal was not available at the given address. Then AO on receiving new address from the assessee issued summon u/s 131 of the Act to Smt. Abha Bansal to submit her bank statement, ledger account, etc. and consequently, Smt. Abha Bansal sought 10 days time vide letter dated 23.12.2010 but subsequently vide letter dated 20.12.2010 Smt. Abha Bansal stated that she could not produce the bank statement. Then AO proceeded to issue second summon to Smt. Abha Bansal for her personal appearance on 27.12.2010 on which date she did not appear. Then on 27.12.2010, ITO, Ward 1(1), Gurgaon sent the copy of the return downloaded from AST Module wherein Smt. Abha Bansal has declared income of Rs.7,42,400/- which shows that she has no creditworthiness of lending such a huge amount of Rs.5,00,00,000/-. Then AO proceeded to make the assessment.
When the AO himself issued second notice for procuring personal appearance of Smt. Abha Bansal on 27.10.2010 and received a letter from the ITO concerned along with copy of return of Smt. Abha Bansal showing declared income of Rs.7,42,400/- on 27.12.2010, it is very surprising that as to how he has obtained the approval u/s 153D on 24.12.2010, particularly when investigation was going on with the AO. It shows that the entire exercise of obtaining mandatory approval u/s 153D by the AO is an ante-dated thus a sham approval given by the Addl. Commissioner of Income-tax without applying his mind, which is apparent from the approval dated 24.12.2010, available at page 262 of the paper book, is extracted as under for ready perusal :-
“OFFICE OF THE ADDL.COMMISSIONER OF INCOME-TAX CENTRAL RANGE – 2, ROOM NO.343, ARA CENTRE, E-2, JHANDEWALAN, NEW DELHI F.No.:ADDL.CIT/CR-2/App.u/s153D/2010-11/707 Dated 24.12.2010 To The Asstt. Commissioner of Income Tax, Central Circle 17, New Delhi. Sub: Approval for framing assessment proceedings in the M/s. Thapar Homes Ltd. Group-reg. Ref.: F.No.ACIT/CC-17/10-11/1226 dated 24.12.2010
Please refer to the subject cited above. Approval to the draft assessment orders is hereby granted u/s 153D of the Income Tax Act, 1961 in the following cases :-
S.No. Name of the Company Assessment years for which approval is sought 1 M/s. Madhusudan Fiber Goods Pvt. Ltd. 2005-06 to 2009-10 2 M/s. Esteem Buildwell Pvt. Ltd. 2003-04 to 2009-10 3 Shri Bhupesh Kumar Dhingra 2003-04 to 2009-10 4 M/s. D.M. Info Tech Pvt. Ltd. 2007-08 to 2009-10 5 M/s. Mirage Investment Pvt. Ltd. 2006-07 to 2009-10 6 M/s. Mirage Management & Training 2007-08 to 2009-10 Pvt. Ltd. 7 M/s. Newera Sanitary Wares Pvt. Ltd. 2005-06 to 2009-10 8 M/s. Mirage Infocom Pvt. Ltd. 2006-07 to 2009-10 9 M/s. Madhusudan Buildcon Pvt. Ltd. 2005-06 to 2009-10 Sd/- (L.K.S. Dehiya) Addl. Commissioner of Income Tax, Central Range-2, New Delhi.”
Aforesaid approval given by the Addl. Commissioner of Income-tax shows that approval to the draft assessment order u/s 153D is granted in case of the assessee, Shri Bhupesh Kumar Dhingra along with 8 other assessees without perusing the draft assessment order in this case. Because when assessment proceedings were going on 27.12.2010 before the AO then it is beyond comprehension that as to how the draft assessment order has been placed before the Addl. Commissioner of Income-tax on 24.12.2010. It goes to prove that approval has been given contrary to the provisions of section 153D.
12. To controvert this factual position, ld. DR has not brought on record or argued any new facts. So, when mandatory approval u/s 153D is not there, entire assessment made by the AO u/s 153A/143(3) is not sustainable as it is no approval in the eyes of law, hence rightly quashed by the ld. CIT (A). So, without going into the merits of the other grounds raised by the Revenue which have otherwise become academic and as such not been argued in the face of the fact that the assessment order is not sustainable on ground of invalid/no approval obtained u/s 153D of the Act.
Consequently, the appeal filed by the Revenue is hereby dismissed on legal ground. Order pronounced in open court on this 31st day of January, 2020.