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Income Tax Appellate Tribunal, “B” BENCH : BANGALORE
Before: SHRI A. K. GARODIA & SMT. BEENA PILLAI
IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH : BANGALORE BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER ITA No. 212 & 589/Bang/2020 Assessment year : 2005 – 06 M/s Annapurneswari Investments, No. 10/1, Lakshminarayana Complex, DCIT Circle – 2 (2), Palace Road, Vs. Bengaluru Bangalore – 560052 PAN : AALFA0704E APPELLANT RESPONDENT Assessee by : Smt. Sheetal Borkar, Advocate Revenue by : Shree Muzaffar Hussain, CIT DR Date of hearing : 10.09.2020 Date of Pronouncement : 16.10.2020 O R D E R PER ARUN KUMAR GARODIA, A. M.: Both these appeals are filed by the assessee and the same are directed against two separate orders of learned CIT (A) – 11 Bengaluru dated 20.12.2019 & 13.01.2020 and the assessment year involved in both appeals is same i.e. A. Y. 2005 – 06. Both these appeals were heard together and are being disposed of by way of this common order for the sake of convenience.
The Grounds raised by the assessee in ITA 212/Bang/2020 are as under:-
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The learned C.I.T. (A) has erred in passing the order in the manner which she did. 2. The learned C.I.T. (A) is erred in upholding the addition made by the Assessing Officer without appreciating that the Assessing Officer has passed the order without adhering to the direction of the Hon'ble ITAT dt.20.09.2013. 3. The learned C.I.T. (A) failed to appreciate that the Appellant has provided all the details of the creditors, and therefore, the addition made by the Assessing Officer ought to be deleted. 4. The learned C.I.T. (A) is wrong in law by allowing the addition made by the Assessing Officer as there had been no failure to disclose truly and fully the material facts necessary for completing the assessment. 5. The reassessment proceedings and reassessment order in appeal are illegal, as section 153 C prohibits proceedings under 147 where seized materials found and seized at third party premises is the basis for re- opening the assessment. 6. Without prejudice, the disallowance is excessive, arbitrary, unreasonable and ought to be deleted. 7. The learned C.I.T. (A) erred in allowing the interest levied by the A.O. u/S.234B and 234C of the Act. 8. For these and other grounds that may be urged at the time of hearing of the appeal, the Appellant prays that the appeal may be mowed.
The Grounds raised by the assessee in ITA 589/Bang/2020 and additional grounds raised in this appeal are as under:-
(a) Original Grounds
The learned C.I.T. (A) has erred in passing the order without appreciating the submissions of the appellant. 2. The learned C.I.T. (A) has erred in passing the order in the manner which she did. 3. The learned C.I.T. (A) has erred in law by not considering the fact that the Assessment Order as passed by the learned A.O. was not in accordance with the directions of the Hon'ble ITAT dt.20.09.13 and therefore, the same requires to be cancelled.
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The learned C.I.T. (A) has failed to appreciate that the amount of Rs. 4,87,88,586/- for sundry creditors as added by the A.O. as unexplained credit balance is part of the assessment dt.30.03.13 and therefore must be deleted as it is one and the same. 5. The learned C.I.T. (A) has failed to appreciate that the impugned order is bad in law as the learned A.O. has already passed the order u/s 154 on 20/05/2013 as observed in the impugned order, determining the demand as Rs. 12,15,21,686/- and thus the learned A.O. has become functus officio to pass the impugned order and the impugned order requires to be cancelled. 6. The learned C.I.T. (A) has failed to appreciate that the A.O. has not assessed the Total Income of the assessee in the assessment, and therefore, since no assessment has been done, the order passed by the learned A.O. must be cancelled and the additions made, be deleted. 7. The learned C.I.T. (A) ought to have appreciated that the appellant had filed the PAN of all the sundry creditors and has proven their identity, and the mere fact that the creditors have not responded cannot be a factor to assess the amount payable to them at the end of the year as unexplained cash credits u/s 68 of the Act. 8. & Without prejudice, the disallowance is excessive, arbitrary, unreasonable and ought to be deleted. 9. The learned C.I.T. (A) erred in allowing the interest levied by the A.O. u/s 234B and 234C of the Act. 10. For these and other grounds that may be urged at the time of hearing of the appeal, the Appellant prays that the appeal may be allowed.
(b) Additional Grounds
The learned A.O. has erred in law by issuing a notice u/ 5.148 to the 1. Appellant. The learned A.O. ought to have appreciated that he had no 2. jurisdiction to issue Notice u/ S.148 which falls under the exclusive jurisdiction of S.153C / S.153A of the Act in search proceeding. The learned A.O. ought to have appreciated that the assessment 3. could only be made under the provisions of S.153C or S.153A of the Act, thereby making the notice issued u/ S.148 of the Act is void ab initio and assessment made under section 143(3) r.w.s 147 is bad in law.
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Since, the assessment year involved in both appeals is same, we first take note of the sequence of events appearing on page 1 of the paper book to understand as to why there are two appeals filed by the assessee for the same assessment year. As per the same, an order u/s 143 (3) r.w.s. 147 was passed by the AO on 29.12.2009 and when the assessee filed an appeal against the same before CIT (A), an order was passed by CIT (A) on 28.02.2011. Thereafter, the AO passed an order on 15.03.2011 to give effect to this order of CIT (A). Against this order of CIT (A), cross appeals were filed by the assessee and revenue before the tribunal on 26.04.2011 and these appeals were disposed of by the tribunal as per its order dated 20.09.2013, copy available on pages 44 to 52 of the paper book. In the meantime, there was a search carried out in the case of Sri P. Dayanand Pai on 12.04.2011 after which, another notice u/s 148 was again issued by the AO on 19.03.2012 and the AO passed order u/s 143 (3) r.w.s. 147 on 30.03.2013. Subsequently, an order u/s 154 was passed by the AO on 20.05.2013, copy available on pages 89 to 91 of the paper book. As per the tribunal order dated 20.09.2013, the matter was restored back to the AO for a fresh decision with some directions and accordingly, the AO passed an order u/s 143 (3) r.w.s. 254 on 31.03.2015. Against this order of the AO, the assessee filed an appeal before CIT (A) which was disposed of by CIT (A) on 13.01.2020 and one of the present two appeals before the tribunal is arising out of this order of CIT (A). Against the
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order passed by the AO u/s 143 (3) r.w.s. 147 on 30.03.2013 also, an appeal was filed by the assessee before CIT (A) and this appeal was disposed of by CIT (A) as per his order dated 20.12.2019 and the second appeal out of the present two appeals before the tribunal is arising out of this order of CIT (A).
First, we take up the appeal in ITA No. 212/Bang/2020. In this appeal, the issue involved is about the addition of Rs. 487,88,586/- made by the AO again while passing fresh order as directed by the tribunal. In para 11 of this tribunal order available on page 48 of the paper book, the tribunal noted that in reassessment proceedings for the same year, the AO seemed to have examined the parties whom the assessee claimed to be sundry creditors and has accepted that except for four of them, all of them are genuine and allowable and in order to avoid multiplicity of proceedings on the very same issue, the tribunal remanded the matter to the AO for a fresh decision with the direction contained in para 12 of that tribunal order. As per the assessment order passed by the AO on 31.02.2015, the AO noted that the assessee was asked to prove genuineness of the sub contractors outstanding credit balances of Rs. 487,88,586/- and in reply, the assessee stated that the genuineness of the sub contractors had been confirmed during the course of second reassessment proceedings vide notice dated 19.03.2012`. After considering this second reassessment order dated 30.03.2013, the AO has given a
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categorical finding that during the second reassessment proceedings, the genuineness of the sub contractors had not been proved and the entire sub contract payments had been disallowed. In the impugned order of CIT (A) dated 13.01.2020 in para 16, the CIT (A) has also noted that during second reassessment proceedings, entire expenditure claimed as paid to sub contractors amounting to Rs. 25,35,07,740/- was held to be bogus and therefore, this claim of the assessee that the assessee has proved genuineness of payments to sub contractors is factually incorrect. CIT (A) has noted in para 18 of the impugned order that the assessee has failed to produce any documentary evidence in support of the contentions and therefore, no interference is called for in the assessment order on this issue being addition of Rs. 487,88,586/- made by the AO.
Both sides were heard. We find that in the first round, this was the claim of the assessee before the tribunal that in the second reassessment proceedings, genuineness of all sub contractors except four was accepted by the AO and the tribunal remanded the matter to AO for fresh decision and in second round, both the AO and CIT (A) had repeated the addition of Rs. 487,88,586/- on the basis of this finding that this claim of the assessee that the assessee has proved genuineness of payments to sub contractors during second reassessment proceedings is factually incorrect. Copy of this tribunal
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dated 20.09.2013 in first round is available on pages 44 to 52 of the paper book and we find that in para 12 of this tribunal order, this is the only direction of the tribunal that the AO will follow his own order in the subsequent reassessment proceedings for making additions/disallowance. The said second reassessment order dated 30.03.2013 available on pages 53 to 88 of the paper book, in para 14.4 of this second reassessment order on page 81 of the paper book, the AO held that the entire amount of Development Expenses Rs. 25,35,07,740/- is disallowed since the assessee has failed to prove the genuineness, evidence of work done like valuation report, or any other details w.r.t. this claim and he further observed in the same para that since an amount of Rs. 487,88,586/- is already added in the order dated 29.12.2009, only the balance amount of Rs. 20,47,19,154/- (Rs. 25,35,07,740/- minus Rs. 487,88,586/-) is required to be disallowed further and he made the disallowance of Rs. 487,88,586/- in this second reassessment order dated 30.03.2013. Since, the impugned order of CIT (A) and the assessment order dated 31.03.2015 passed by the AO u/s 143 (3) r.w.s. 254 are in line with the direction of the tribunal in para 12 of the said tribunal order dated 20.09.2013 in first round as per copy available on pages 44 to 52 of the paper book, we hold that no interference is called for in the order of CIT (A) dated 13.01.2020.
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In the result, the appeal of the assessee in ITA No. 212/Bang/2020 is dismissed.
Now, we take up the second appeal in ITA No. 589/Bang/2020. In this appeal, as per additional ground no. 2 raised by the assessee as reproduced above, this is the grievance of the assessee that the AO did not have jurisdiction to issue notice u/s 148 and he might have issued notice u/s 153C/153A because the material was found in case of search at the place of a third party.
In course of hearing, learned AR of the assessee submitted that as per the assessment order dated 30.03.2013, it is noted by the AO that a search action was conducted in the case of Sri Dayanand Pai and group on 12.04.2011 and thereafter on 19.03.2012, notice u/s 148 was issued to the assessee. She submitted that the reopening is based on material found in course of search conducted in the case of a third party and therefore, the AO might have issued notice u/s 153A r. w. s. 153C but the AO had no jurisdiction to issue notice u/s 148 in the facts of the present case. She submitted that as per sub section (1) of section 153C, section 148 cannot be invoked where section 153C is applicable. She placed reliance on the tribunal order rendered in the case of ACIT vs. Shri Srinivas Rao Haskote in ITA No. 1154 & 1155/bang/2015 dated 21.02.2018, copy available on pages 103 to 111 of
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Paper Book – 2. She pointed out that in Para 6 of this tribunal order, the tribunal has reproduced paras 1 to 14 of another tribunal order rendered in the case of G. Koteswara Rao vs. DCIT (2015) 64 Taxmann.com 159 and in para 14 thereof, it is noted by the tribunal that in that case also, the AO reopened the assessment based on a search conducted in a third party case as in the present case. She pointed out that in that case in the same para, it is noted by the tribunal that the AO formed the opinion based on the statement recorded from the assessee, consequent to post search proceedings taken up by the DDIT (Inv) and held that the AO is not justified in reopening the assessment u/s 147 and his order is illegal and arbitrary.
As against this, learned DR of the revenue submitted that as per sub section (1) of section 153C, this section is applicable only if some valuable article as noted in clause (a) or books of accounts etc. as noted in clause (b) are found in search and the same are related to a person other than the searched person. He submitted that in the present case, neither any valuable article as noted in clause (a) or books of accounts etc. as noted in clause (b) of section 153C (1) were found in search and therefore, section 153C cannot be invoked in the present case and as a consequence, the tribunal order cited by the learned AR of the assessee is not applicable in the present case.
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We have considered the rival submissions. We find that this is true that notice u/s 148 dated 19.03.2012was issued by the AO after carrying out of search in the case of Sri Dayanand Pai and group on 12.04.2011. Hence, the have to examine the applicability of the tribunal order cited by the learned AR of the assessee having been rendered in the case of ACIT vs. Shri Srinivas Rao Haskote (Supra) and in the case of G. Koteswara Rao vs. DCIT (Supra) after considering the submissions of the learned DR of the revenue that since no valuable article as noted in clause (a) or books of accounts etc. as noted in clause (b) of section 153C (1) were found in search, section 153C cannot be invoked in the present case and as a consequence, the tribunal orders cited by the learned AR of the assessee are not applicable in the present case. We first reproduce the provisions of section 153C for ready reference. It reads as under:-
“Assessment of income of any other person. 153C. (1) Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, where the Assessing Officer is satisfied that,— (a) any money, bullion, jewellery or other valuable article or thing, seized or requisitioned, belongs to; or (b) any books of account or documents, seized or requisitioned, pertains or pertain to, or any information contained therein, relates to, a person other than the person referred to in section 153A, then, the books of account or documents or assets, seized or requisitioned shall be handed over to the Assessing Officer having jurisdiction over such other person and that Assessing Officer shall proceed against each such other person and issue notice and assess or reassess the income of the other person in accordance
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with the provisions of section 153A, if, that Assessing Officer is satisfied that the books of account or documents or assets seized or requisitioned have a bearing on the determination of the total income of such other person for six assessment years immediately preceding the assessment year relevant to the previous year in which search is conducted or requisition is made and for the relevant assessment year or years referred to in sub-section (1) of section 153A: Provided that in case of such other person, the reference to the date of initiation of the search under section 132 or making of requisition under section 132A in the second proviso to sub-section (1) of section 153A shall be construed as reference to the date of receiving the books of account or documents or assets seized or requisitioned by the Assessing Officer having jurisdiction over such other person : Provided further that the Central Government may by rules made by it and published in the Official Gazette, specify the class or classes of cases in respect of such other person, in which the Assessing Officer shall not be required to issue notice for assessing or reassessing the total income for six assessment years immediately preceding the assessment year relevant to the previous year in which search is conducted or requisition is made and for the relevant assessment year or years as referred to in sub-section (1) of section 153A except in cases where any assessment or reassessment has abated. (2) Where books of account or documents or assets seized or requisitioned as referred to in sub-section (1) has or have been received by the Assessing Officer having jurisdiction over such other person after the due date for furnishing the return of income for the assessment year relevant to the previous year in which search is conducted under section 132 or requisition is made under section 132A and in respect of such assessment year— (a) no return of income has been furnished by such other person and no notice under sub-section (1) of section 142 has been issued to him, or (b) a return of income has been furnished by such other person but no notice under sub-section (2) of section 143 has been served and limitation of serving the notice under sub-section (2) of section 143 has expired, or (c) assessment or reassessment, if any, has been made, before the date of receiving the books of account or documents or assets seized or requisitioned by the Assessing Officer having jurisdiction over such other person, such Assessing Officer shall issue the notice and assess or reassess total income of such other person of such assessment year in the manner provided in section 153A.”
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As per these provisions of section 153C (1) as reproduced above, it is seen that this section can be invoked if in course of search, some valuable article as noted in clause (a) of this section as reproduced above or books of accounts etc. as noted in clause (b) of section 153C (1) as reproduced above were found in course of search and the same are belonging or related to a person other than the searched person, the same has to be handed over to the AO of such other person by the AO of the searched person after recording of satisfaction in this regard. Hence, it has to be seen that whether these requirements of section 153C are met in the present case or not. For this purpose, we first examine the assessment order dated 30.03.2013 passed by the AO for A. Y. 2005 -06, copy available on pages 53 to 88 of the paper book. In this, the AO has noted on page 1 that a search action was conducted in the case of Sri Dayanand Pai and Group on 12.04.2011 and during the course of investigation, it was found that in the assessee’s books, a sum of Rs. 25,35,07,740/- has been debited as development expenses. Some other findings of investigation were also noted by the AO and based on such findings in course of post search investigation, the AO formed a belief that certain income has escaped assessment in the present case and the AO recorded the reasons and issued notice u/s 148 on 19.03.2012. The assessee has requested the AO to provide copy of the reasons recorded by the AO before issuing notice u/s 148. In para 8 of the assessment order, it is noted that
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the copy of reasons as requested by the assessee was given on 08.01.2013 and thereafter, the assessee has raised objection about validity of re-opening and a speaking order dated 08.02.2013 was passed after considering the objections raised by the assessee. The AR of the assessee has filed a paper book containing 126 pages but in the same, the assessee has neither submitted the copy of reasons recorded by the AO for reopening although copy of the same was provided by the AO on 08.01.2013 nor the assessee has provided the copy of objection raised before the AO about validity of reopening and nor the assessee has provided the copy of the order passed by the AO on 08.02.2013 for disposing of those objections. In fact, no material is brought on record by the learned AR of the assessee to establish or even to indicate that some valuable article as noted in clause (a) of section 153C (1) as reproduced above or books of accounts etc. as noted in clause (b) of section 153C (1) as reproduced above were found in course of search and the same are belonging or related to the present assessee being a person other than the searched person. In the absence of it, section 153C cannot be invoked in the present case and under these facts, the tribunal orders cited by the learned AR of the assessee are not applicable because the facts are different. Accordingly, this additional ground is rejected and it is held that this ground has no merit in the facts of the present case.
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Learned AR of the assessee also placed reliance on the tribunal order in assessee’s own case for A. Y. 2005 – 06 in ITA Nos. 495 & 701/Bang/2011 dated 20.09.2013, copy available on pages 44 to 52 of the paper book. This appeal is in respect of the first reassessment order dated 29.12.2009 against which, first appeal was filed by the assessee before CIT (A) and the same was disposed of by CIT (A) on 28.02.2011 against which, cross appeals were filed by the assessee and the revenue before the tribunal and the same were disposed of by the tribunal as per this tribunal order dated 20.09.2013. In these appeals before the tribunal, the issue raised by the assessee before the tribunal was about the addition of Rs. 487,88,586/- confirmed by the CIT (A) and this issue was remanded by the tribunal to AO for a fresh decision as per the direction of the tribunal in para 12 of this tribunal order and accordingly, the AO passed fresh order on dated 31.03.2015 against which, fresh order of CIT (A) is dated 13.01.2020 and the present appeal in ITA No. 589/Bang/2020 is against this tribunal order. As pe para 14 of this tribunal order, an additional ground was also raised by the assessee before the tribunal in which, the issue raised was this that assumption of jurisdiction by the AO u/s 148 was challenged by alleging that the AO has not recorded reasons. The tribunal rejected this additional ground. In the cross appeal filed by the revenue, the issue raised by the revenue was about deletion of addition made by the AO of Rs. 37,03,90,625/- being the difference in the amount paid to M/s Gouri
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Ganesha and it was alleged by the AO that it is inflation of purchases. The explanation of the assessee was this that the assessee was following mercantile system of accounting and that party M/s Gouri Ganesha was following cash system of accounting and the difference was because of this reason. This addition was deleted by CIT (A) by accepting this contention of the assessee that that the assessee was following mercantile system of accounting and that party M/s Gouri Ganesha was following cash system of accounting and the difference was because of this reason. The revenue was in appeal before the tribunal against this relief allowed by CIT (A). The tribunal in this order restored this issue also to the AO with the direction to verify as to the exact method of accounting followed by the assessee as well as M/s Gouri Ganesha. Hence, it is seen that in this tribunal order, there was no such issue about applicability of section 153C vs. section 148 and therefore, this tribunal order has no relevance about this issue raised by the assessee as per Additional Grounds in ITA No. 589/Bang/2020. We reject the additional Grounds of ITA No. 589/Bang/2020.
As per the main grounds 1 to 10 of ITA No. 589/Bang/2020, the grievance of the assessee is about addition made by the AO u/s 68 of Rs. 20,47,19,154/- and consequent demand raised of Rs. 12,15,21,686/- as per order u/s 154 dated 20.05.2013. In respect of these grounds, no argument was
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advanced by the learned AR of the assessee before us and therefore, we infer that she is reiterating the arguments made before CIT (A). We find that the impugned order of CIT (A) dated 20.12.2019 and it is available on pages 100 to 108 of the paper book and the issue on merit was decided by CIT (A) as per para 14 to 20 of this order available on page 107 of the paper book. For ready reference, these paras are reproduced hereinbelow:
“14. Ground no 5.1- The appellant states AO is not justified in making an addition of Rs. 20.47.19.154/-. 15. Perusal of assessment order shows that during assessment proceedings u's 148 the partners of the firm were asked to furnish detail of land sold by firm during the last 6 years It was discovered that the appellant did not file return for AY 2006-07 and subsequent years even though the appellant derived taxable income. This fact was admitted by A Ramakrish.na, partner in appellant firm. 16. AO found that appellant debited Rs. 25,35,07.740/- in its P& L a/c for FY 2004-05 These were debited under the head development expenses paid to sub contractors Enquiries revealed Rs. 18.95.26.555/- were paid in cash. Notices were issued to the sub contractors. Most of the said sub contractors filed return up to AY 2005-06 and not thereafter. This shows that payments made to these sub contractors was a onetime payment. Further 4 persons appeared before Investigation Wing and admitted that they were just name lenders and had not carried out any sub contract work for the appellant. 17. It may be noted that an addition of an amount of Rs 4.87 38 586/- was already made in assessment order passed u/s 143(3) rws 147 on 29/12/2009. Therefore, addition amounting to Rs 20,47,19.154 1- was made by AO on the balance remaining amount which had escaped taxation.
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It may be noted mat AO in paras14.2 to 14.4 has brought out in detail the detail of sub contractors Most of these sub contractors did not appear before AO. Most did not appear before AO. Most did not file return of income. Furthermore many of these so called sub contractors were not receiving notices issued by department. This casts a shadow of doubt on their whereabouts. Therefore, since payments claimed to have been made by appellant to these sub contractors remained unproven. AO made the said addition of Rs 20,47,19,154/- 19. It may be noted that even during appellate proceedings, appellant failed to submit any evidence in support of its contentions raised in grounds of appeal. No documentary evidence has been produced nor any evidence furnished to substantiate its claims 20. Therefore, in view of the overwhelming evidence gathered against the appellant in the form of seized materials, and in view of the fact that appellant failed to produce any documentary evidence in support its contentions_ no interference in AO addition is called for since no infirmity arose. Ground no 5.1 is rejected Addition of Rs. 20,47.19.154/- is upheld sustained and confirmed.” 15. We find that in para 19 of his order as reproduced above, it is observed by the learned CIT (A) that the assessee failed to submit any evidence in support of its contentions raised in grounds of appeal and no documentary evidence has been produced nor any evidence furnished to substantiate its claims. Before us also, no material is produced to show that the transaction in question is genuine although it is held by the AO that the same is not genuine. Hence, we hold that no interference is called for in the order of CIT (A) in respect of merit of the addition also and accordingly, grounds 1 to 10 of this appeal in ITA No. 589/Bang/2020 are also rejected.
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In the result, the appeal of the assessee in ITA No. 589/Bang/2020 is also dismissed.
In the combined result, both the appeals of the assessee in ITA No. 212/Bang/2020 and in ITA No. 589/Bang/2020 are dismissed.
Pronounced in the open court on the date mentioned on the caption page.
Sd Sd/- Sd/-Sd/- (BEENA PILLAI) (A.K. GARODIA) Judicial Member Accountant Member Bangalore, Dated: 16th October, 2020. /NS/*AKG Copy to: 1. Appellants 2. Respondent 3. CIT 4. CIT(A) 5. DR, ITAT, Bangalore. 6. Guard file
By order
Assistant Registrar, ITAT, Bangalore.