Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, “H” Bench, Mumbai
Before: Shri G. Manjunatha & Shri Ravish Sood
O R D E R
PER RAVISH SOOD, JM
The present appeals filed by the revenue are directed against the respective orders passed by the CIT(A)-51, Mumbai, dated 13.02.2018, which in turn arises from the respective orders passed by the A.O under Sec. 143(3) r.w.s. 153A of the Income Tax Act, 1961 (for short „Act‟) for A.Y. 2009-10, A.Y 2010-11 and A.Y 2013-14. As common facts are involved in the aforementioned appeals, therefore, the same are being taken up and disposed off by way of a consolidated order. We shall first advert to the appeal of the revenue for A.Y. 2009- 10. The revenue assailing the order of the CIT(A) has raised before us the following grounds of appeal :
P a g e | 2 3092 & 3094/Mum/2018 AYs. 2009-10, 2010-11 & 2013-14 Dy. Commissioner of Income Tax, Central Circle-3(1) Vs. Kalpana S. Mardia “1. On the facts and in the circumstances of the case and in law the Ld. CIT(A) erred in deleting the addition made by the AO on account of unexplained investments u/s 69, ignoring the fact that the assessee has failed to file adducing evidences to loan entry.
2. On the facts and in the circumstances of the case and in law the Ld. CIT(A) erred in deciding that the assessment u/s 143(3) r.w.s 153A as invalid by holding that the assessment was non-abetted and no incriminating material unearthed during search action to make the re- assessment without appreciating the incriminating circumstances and incriminating material collected during the Nirmal Group Search.
3. The appellant craves to leave, to add, to amend and/or to alter any of the ground of appeal
, if need be.
4. The appellant, therefore, prays that on the ground stated above, the order of the Ld. CIT(A)-51, Mumbai, may be set aside and that of the Assessing Officer restored.”
2. Briefly stated, the assessee who is a director of M/s Nirmal Manor Pvt. Ltd., an entity belonging to Nirmal Lifestyle Group had not filed any return of income for the year under consideration i.e A.Y. 2009-10. Search and seizure proceedings under Sec. 132 of the Act were carried out on 23.10.2013 in the case of M/s Nirmal Lifestyle Group. As the assessee was a director of M/s Nirmal Manor Pvt. ltd., an entity belonging to the aforementioned group, therefore, she was also covered in the said search proceedings. In compliance to the notice issued under Sec.153A of the Act, the assessee filed her return of income for the year under consideration viz. A.Y 2009-10 on 21.01.2016, declaring total income at Rs.2,64,096/-.
During the course of the assessment proceedings, it was observed by the A.O, that the assessee had advanced loans aggregating to an amount of Rs. 44,16,000/- to three parties, viz. (i) M/s Dhantan Land: Rs.42,00,000/-; (ii) M/s Ravi Development: Rs.2,00,000/-; and (iii) K.B. Phalka: Rs.16,000/-. As no details in respect of the said loans were furnished by the assessee in the course of the assessment proceedings in the form of confirmations, PAN details, copy of bank statements, and also the purpose for which the said loans were advanced to the aforesaid parties, therefore, the A.O added the amount of Rs. 44,16,000/- under Sec. 69 of the Act.
P a g e | 3 3092 & 3094/Mum/2018 AYs. 2009-10, 2010-11 & 2013-14 Dy. Commissioner of Income Tax, Central Circle-3(1) Vs. Kalpana S. Mardia Accordingly, the A.O vide his order passed under Sec. 143(3) r.w.s 153A, dated 31.03.2016 assessed the total income of the assessee at Rs. 46,72,488/-.
Aggrieved, the assessee carried the matter in appeal before the CIT(A). The assessee assailed the order of the A.O on two grounds viz. (i) that, the A.O had erred in making an addition of Rs. 44,16,000/- under Sec. 69 of the Act; and (ii) that, in the absence of any incriminating material found during the course of the search proceeding the addition made by the A.O under Sec. 69 in respect of the non-abated assessment of the assessee for the year could not be sustained. As regards the addition of Rs.44,16,000/- made by the A.O under Sec. 69, it was observed by the CIT(A) that the loans advanced by the assessee to the aforesaid three parties were duly recorded in her regular books of accounts. It was noticed by the CIT(A), that as the said investments made by the assessee were out of the corresponding liabilities shown in her „balance sheet‟ including ones which got squared-up, therefore, an addition, if any, could have been made by the A.O if the corresponding liabilities were found to be non-genuine. It was observed by the CIT(A) that the A.O in the course of the assessment proceedings had examined the various liabilities shown in the „balance sheet‟ of the assessee including the unsecured loans, other loans, as well as short term loans and had not drawn any adverse inferences as regards the genuineness of the same. Accordingly, the CIT(A) concluded that the addition made in the hands of the assessee under Sec.69 could not be sustained. Apart there from, it was also observed by the CIT(A), that the A.O while framing the assessment had failed to afford a reasonable opportunity of being heard to the assessee. Further, the CIT(A) was also persuaded to subscribe to the claim of the assessee that in the absence of any incriminating material unearthed during the course of the search P a g e | 4 3092 & 3094/Mum/2018 AYs. 2009-10, 2010-11 & 2013-14 Dy. Commissioner of Income Tax, Central Circle-3(1) Vs. Kalpana S. Mardia proceedings, no addition could have been made by the A.O in respect of the non-abated assessment of the assessee for the year under consideration. In this regard, it was observed by the CIT(A), that though the assessee had not filed any return of income for the year under consideration, but then neither any notice under Sec. 142(1) or any notice under Sec. 148 was issued to her prior to the date of the search action and, no proceedings were pending on the said date. Accordingly, the CIT(A) being of the view, that the assessment in the case of the assessee for the year under consideration were non-abated, therefore, concluded that in the absence of any incriminating material found during the course of the search proceedings no addition under Sec.69 of the Act could have been made in the hands of the assessee.
The revenue being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. We have perused the orders of the lower authorities and heard the rival contentions of both the parties. We shall first advert to the sustainability of the addition of Rs. 44,16,000/- made by the A.O under Sec. 69, in respect of the loans which were advanced by the assessee to the aforementioned three parties viz. (i) M/s Dhantan Land: Rs.42,00,000/-; (ii) M/s Ravi Development: Rs.2,00,000/-; and (iii) K.B. Phalka: Rs.16,000/-. On appeal, the aforesaid addition of Rs. 44,16,000/- was deleted by the CIT(A). Admittedly, the investments made by the assessee in the form of loans advanced to the aforementioned three parties were duly recorded in her regular books of accounts. As Sec. 69 of the Act presupposes cumulative satisfaction of two conditions viz. (i) that, the investments are found to be not recorded in the books of accounts, if any, maintained by the assessee for any source of income; and (ii) that, the assessee offers no explanation about the nature and source of the investments or the explanation offered by him is not, in the opinion of the assessing officer satisfactory, therefore, it is only on a P a g e | 5 3092 & 3094/Mum/2018 AYs. 2009-10, 2010-11 & 2013-14 Dy. Commissioner of Income Tax, Central Circle-3(1) Vs. Kalpana S. Mardia conjoint satisfaction of the aforesaid twin conditions that the value of the investments may be deemed to be the income of the assessee for the said financial year. As is discernible from the order of the CIT(A), the investments made by the assessee in the form of loans advanced to the aforementioned three parties was out of the corresponding liabilities shown in her „balance sheet‟, including the ones which had got squared-up. Insofar the genuineness of the liabilities is concerned, we find, that the various liabilities shown in the „balance sheet‟, including the unsecured loans, other loans, as well as short term loans were duly examined by the A.O in the course of the assessment proceedings and no adverse inferences as regards the same was drawn by him. Accordingly, in the backdrop of the aforesaid facts, we are of the considered view, that the CIT(A) had rightly concluded that the addition made by the A.O under Sec. 69 in respect of the investments of Rs. 44,16,000/- which were duly recorded in the regular books of the assessee could not be sustained. We thus not finding any infirmity in the order of the CIT(A), uphold the deletion of the addition of Rs. 44,16,000/- made by the A.O under Sec. 69 of the Act. The Ground of appeal
No. 1 raised by the revenue is dismissed.
6. We shall now advert to the contention of the ld. D.R that the CIT(A) has erred in concluding that the assessment framed under Sec. 143(3) r.w.s 153A was invalid, for the reason, that in the absence of any incriminating material unearthed during the course of the search proceeding no addition in respect of the non-abated assessment of the assessee for the year under consideration was liable to be made. As observed by us hereinabove, though the assessee had not filed any return of income for the relevant year, but then, neither any notice under Sec. 142(1) or any notice under Sec. 148 was ever issued to her prior to the date of the search action, nor any proceedings were pending in her case. The said factual position, as is discernible from P a g e | 6 3092 & 3094/Mum/2018 AYs. 2009-10, 2010-11 & 2013-14 Dy. Commissioner of Income Tax, Central Circle-3(1) Vs. Kalpana S. Mardia the order of the CIT(A), has not been contradicted by the ld. D.R before us. We find, that the CIT(A) in the course of the appellate proceedings had called upon the A.O to submit a report as to whether the assessment in the case of the assessee for the year under consideration was abated or non-abated, and also inform as to whether the additions made in the assessment order were on the basis of any incriminating material. However, in reply, the A.O had claimed that the assessee had filed an application before the Settlement Commission for an amount of Rs.9 crores, which was finally settled at 45 crores. Accordingly, it was claimed by the A.O that the aforesaid facts clearly suggested that incriminating material was found in the course the search proceedings. However, on a perusal of the order of the Settlement Commission, dated 21.08.2017 revealed that the application before the commission was filed by 7 entities viz. (i) M/s Nirmal Lifestyle Ltd.; (ii) M/s Nirmal Lifestyle (I) Pvt. Ltd.; (iii) M/s Nirmal Lifestyle Kalyan P. Ltd.; (iv) M/s Nirmal Manor P. Ltd.; (v) M/s Nirmal Developer; (vi) M/s Modella Textile Industries Ltd; and (vii) Dilip Premjibhai Joshi, for an aggregate amount of settlement of Rs.11,74,52,169/-. It was observed by the CIT(A), that the application before the Settlement Commission was on account of incriminating material of on-money, bogus purchases, kick-backs and errors & omissions. Further, a perusal of the final settlement amount of Rs. 15,89,26,995/- that was accepted by the settlement commission revealed, that the same was in the hands of viz. (i) M/s Nirmal Lifestyle Ltd; (ii) M/s M/s Nirmal Lifestyle (I) P. Ld.; (iii) M/s Nirmal Developer; (iv) M/s Nirmal Lifestyle Kalyan P. Ltd.; and (v) M/s Modella Textile Industries Ltd. On the basis of the aforesaid facts, it was observed by the CIT(A), that neither any application was ever made by the assessee before the Settlement Commission, nor was there any reference in the said order of any incriminating material of P a g e | 7 3092 & 3094/Mum/2018 AYs. 2009-10, 2010-11 & 2013-14 Dy. Commissioner of Income Tax, Central Circle-3(1) Vs. Kalpana S. Mardia unexplained investments made by the assessee in the form of loans to M/s Dhantan land, M/s Ravi Development etc. Further, it was observed by the CIT(A), that the A.O also in the assessment order had not made any reference to any seized material while making the addition on account of the unexplained loans. Apart there from, it was noticed by the CIT(A), that the A.O despite being provided a specific opportunity by way of remand proceedings, had however, not been able to refer to any incriminating material on the basis of which the aforesaid addition was made by him. Accordingly, in the backdrop of the fact that the assessment in the case of the assessee for the year under consideration was non-abated and no incriminating material was seized in context of the aforesaid additions so made by the A.O, it was concluded by the CIT(A) that the A.O was in error in making the said addition in the hands of the assessee.
We have given a thoughtful consideration to the aforesaid issue, and are persuaded to subscribe to the view taken by the CIT(A). As observed by us hereinabove, the assessment in the case of the assessee for the year under consideration i.e A.Y. 2009-10 was non- abated as on the date on which the search proceedings were conducted. As per the settled position of law so laid down by the Hon’ble High Court of Bombay in the case of CIT Vs. Continental Warehousing Corporation (2015) 374 ITR 645 (Bom), in so far pending assessments are concerned, the jurisdiction to make original assessment and assessment u/s 153A merge into one, and only one assessment for each assessment year shall be made separately on the basis of the findings of the search and, any other material existing or brought on the record of the A.O. However, as observed by the Hon‟ble High Court, in respect of non-abated assessments, the assessment is to be made on the basis of books of account or other documents not produced in the course of original assessment but found in the course P a g e | 8 ITA Nos. 3091, 3092 & 3094/Mum/2018 AYs. 2009-10, 2010-11 & 2013-14 Dy. Commissioner of Income Tax, Central Circle-3(1) Vs. Kalpana S. Mardia of search, and undisclosed income or undisclosed property discovered in the course of search proceedings. Accordingly, as in the case before us, no incriminating material pertaining to the additions made by the A.O towards unexplained investments in the hands of the assessee was unearthed during the course of the search proceedings, therefore, we find no infirmity in the order of the CIT(A), who in our considered view had rightly concluded that the addition made by the A.O under Sec. 153A r.w.s 143(3), in respect of the non-abated assessment in the case of the assessee could not be sustained. The Ground of appeal No. 2 raised by the revenue is dismissed.
Accordingly, finding no merit in the appeal of the revenue, the same is dismissed.
We shall now advert to the appeal of the revenue for A.Y. 2010- 11. The order of the CIT(A) has been assailed before us by the revenue on the following grounds of appeal :
“1. On the facts and in the circumstances of the case and in law the ld. CIT(A) erred in deleting the addition made by the AO on account of unexplained investments u/s 69 ignoring the fact that the assessee has failed to file adducing evidence to loan entry.
On the facts and in the circumstances of the case and in law the Ld. CIT(A) erred in deciding that the assessment u/s 143(3) r.w.s 153A as invalid by holding that the assessment was non-abetted and no incriminating material unearthed during search action to make the re- assessment without appreciating the incriminating circumstances and incriminating material collected during the Nirmal Group Search.”
Briefly stated, the assessee had filed her return of income for A.Y 2010-11 on 14.02.2012, declaring total income at Rs. 3,29,266/-. Subsequently, in compliance to notice issued under Sec. 153A the assessee had filed her return of income for the year under consideration on 21.01.2016 wherein she repeated the total income as was returned by her in the original return of income.
P a g e | 9 3092 & 3094/Mum/2018 AYs. 2009-10, 2010-11 & 2013-14 Dy. Commissioner of Income Tax, Central Circle-3(1) Vs. Kalpana S. Mardia
During the course of the assessment proceedings the A.O observed, that the assessee had advanced loans aggregating to Rs.42 lac to three parties, viz. (i) Shri Sunil Jain: Rs.20,00,000/-; (ii) Ms. Rupa Jain: Rs.6,00,000/- and (iii) advance for Dombivili land: Rs.16,00,000/-. As the assessee had not placed on record details in respect of the said loans and advances in the form of confirmations, PAN details, copies of bank statements, and the purpose for which the loans and advances were given, therefore, the A.O added the aforesaid amount of Rs. 42,00,000/- under Sec.69 of the Act. Accordingly, the income of the assessee was assessed by the A.O under Sec. 143(3) r.w.s 153A, vide his order dated 31.03.2016 at Rs.45,29,270/-.
Aggrieved, the assessee assailed the order of the A.O before the CIT(A) on two grounds viz. (i) that, the A.O had wrongly added loans and advances of Rs.42,00,000/- under Sec. 69 of the Act; and (ii) that, in the absence of any incriminating documents unearthed during the course of the search proceedings, no addition in respect of the non- abated assessments of the assessee for the year under consideration was liable to be made. The CIT(A) after necessary deliberations observed, that as the investments made by the assessee in the form of loans and advances of Rs. 42,00,000/- given to the aforementioned parties were duly recorded in her regular books of accounts and, the genuineness of the corresponding liabilities was also not doubted by the A.O, therefore, the addition of Rs.42,00,000/- made by him under Sec. 69 could not be sustained. Further, the CIT(A) was of the view, that as no incriminating material was unearthed during the course of the search proceedings, therefore, no addition in respect of the non- abated assessment of the assessee could have been made while framing of the assessment under Sec.143(3) r.w.s 153A. On the basis of his aforesaid observations the CIT(A) allowed the appeal.
P a g e | 10 3092 & 3094/Mum/2018 AYs. 2009-10, 2010-11 & 2013-14 Dy. Commissioner of Income Tax, Central Circle-3(1) Vs. Kalpana S. Mardia
The revenue being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. We find that as the facts and the issue involved in the present appeal remains the same, as were there before us in the revenues appeal for the immediately preceding years i.e A.Y. 2009-10 in , therefore, our order therein passed shall apply mutatis mutandis for the purpose of disposal of the present appeal. Accordingly, the appeal of the revenue for the year under consideration i.e A.Y. 2010-11 in is dismissed in the same terms.
The appeal of the revenue is dismissed.
We shall now take up the appeal of the revenue for A.Y. 2013-14. The revenue has assailed the order of the CIT(A) by raising before us the following grounds of appeal:
“1. On the facts and in the circumstances of the case and in law the Ld. CIT(A) erred in deleting the addition made by the AO on account of unexplained investments u/s 69 ignoring the fact that the assessee has failed to file adducing evidence to loan entry. The appellant craves to leave, to add, to amend and/or to alter any of the ground of appeal
, if need be. The appellant, therefore, prays that on the ground stated above, the order of the Ld. CIT(A)-51, Mumbai, may be set aside and that of the Assessing Officer restored.”
16. Briefly stated, the assessee had filed her return of income for A.Y. 2013-14 on 30.03.2015, declaring total income at Rs.4,21,828/-. In compliance to notice issued under Sec. 153A, the assessee requested that the return of income filed by her under Sec. 139 may be treated as the return filed in compliance to notice issued under Sec. 153A.
P a g e | 11 3092 & 3094/Mum/2018 AYs. 2009-10, 2010-11 & 2013-14 Dy. Commissioner of Income Tax, Central Circle-3(1) Vs. Kalpana S. Mardia 17. During the course of the assessment proceedings, it was observed by the A.O, that the assessee had made fresh investments aggregating to Rs. 83,55,428/- which comprised of viz. (i) purchase of agricultural land: Rs.53,15,178/-; (ii) loan to Abhishek Mardia: Rs.70,000/-; (iii) purchase of shares: Rs. 81,000/-; and (iv) purchase of land at Dombivili: Rs.28,89,250/-. At this stage, we may herein observe, that though the A.O had wrongly adopted the figures in respect of viz. (i) loan to Abhishek Mardia; and (ii) purchase of shares, however, the aggregate was correctly taken by him at an amount of Rs.83,55,428/- while framing the assessment. As the assessee failed to justify the aforesaid transactions by placing on record the requisite details viz. date/mode/source of the said investments, bank statements, confirmations etc., therefore, the A.O treated the aforesaid amount of Rs.83,55,428/- as an unexplained investment under Sec.69 and added the same to the returned income of the assessee.
Aggrieved, the assessee carried the matter in appeal before the CIT(A). The CIT(A) after deliberating on the facts observed, that the aforesaid investments made by the assessee were duly recorded in her regular books of accounts. Further, it was noticed by him that the aforesaid investments were sourced from the corresponding liabilities, including the squared up liabilities shown in the „balance sheet‟ of the assessee. Apart there from, the CIT(A) also found merit in the contention of the assessee that only the investments made during the year were to be considered. Accordingly, on the basis of his aforesaid deliberations, it was observed by the CIT(A) that the addition of Rs.83,55,428/- made by the A.O under Sec. 69 could not be sustained.
The revenue being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. We find, that as the issue and P a g e | 12 3092 & 3094/Mum/2018 AYs. 2009-10, 2010-11 & 2013-14 Dy. Commissioner of Income Tax, Central Circle-3(1) Vs. Kalpana S. Mardia the facts involved in the present appeal remains the same, as were involved in the appeal of the revenue before us for A.Y. 2009-10 in , therefore, our order therein passed shall apply mutatis mutandis for the purpose of disposal of the present appeal of the revenue for A.Y. 2013-14 in ITA No. 3094/Mum/2018. Accordingly, the appeal of the revenue for the year under consideration is dismissed in the same terms.
The appeal of the revenue is dismissed.
The appeals of the revenue for A.Y. 2009-10 in and A.Y. 2013-14 in ITA No. 3094/Mum/2018 are dismissed.