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Income Tax Appellate Tribunal, PUNE BENCH “B”, PUNE
आदेश / ORDER
PER SUSHMA CHOWLA, JM:
Both the appeals filed by different assessee are against separate orders of CIT(A)-12, Pune, both dated 27.10.2015 relating to assessment year 2007- 08 against respective orders passed under section 143(3) r.w.s. 147 of the Income-tax Act, 1961 (in short ‘the Act’).
The connected appeals on similar issue were heard together and are being disposed of by this consolidated order for the sake of convenience. In order to adjudicate the issues, first we are making reference to the facts and issues in ITA No.1666/PUN/2015.
The assessee in ITA No.1666/PUN/2015 has raised the following grounds of appeal:- 1. On facts and circumstances prevailing in the case and as per provisions & scheme of the Act it be held that framing of assessment under section 147 of the Act after issue of notice under section 153A is bad in law and invalid. It be held that the reassessment proceedings got abated on issue of notice under section 153A(i) of the Act. It further be held that the Hon'ble CIT(A) erred in concluding that issue of notice u/s 153A(i) for the year under consideration is void-ab-initio. The assessment framed by the AO and that confirmed by the Hon'ble CIT(A) u/s 143(3) r.w.s. 147 be set aside. Just and proper relief be granted to the appellant in this respect. 2. On facts and circumstances prevailing in the case and as per provisions & scheme of the Act it be held that resorting to the provisions of sec. 148 /147 by the AO for reopening the assessment is improper, without satisfying the conditions for resuming the jurisdiction in terms of provisions of sec.147. It be held that assessment framed without granting an opportunity to raise objections on the reopening of assessment proceedings is contrary to the provisions of law. The assessment framed by the AO and that confirmed by the Hon'ble CIT(A) u/s. 143(3) r.w.s. 147 on this score be set aside. Just and proper relief be granted to the appellant in this respect. 3. On facts and circumstances prevailing in the case and as per provisions & scheme of the Act it be held that finalization of assessment without granting an opportunity to cross examine the evidences/statements relied upon by the AO is against the principle of natural of justice and is bad in law. The assessment framed by the AO and that confirmed by
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the Hon'ble CIT(A) be set aside. The addition so made be deleted. Just and proper relief be granted to the appellant on this score. 4. On facts and circumstances prevailing in the case and as per provisions & scheme of the Act it be held that additions made of Rs.3,60,00,000/- on account of alleged bogus unsecured loans and of Rs.1,70,961/- on account of interest on such unsecured loans is improper, unjustified and contrary to the provisions and scheme of the Act and facts prevailing in the case. The addition made be deleted. Just and proper relief be granted to the appellant in this respect. 5. On facts and circumstances prevailing in the case and as per provisions & scheme of the Act it be held that an adhoc addition made of Rs.7,20,000/- as bogus commission being 2% of the alleged accommodation entries for unsecured loans is improper, unjustified and contrary to the provisions and scheme of the Act and facts prevailing in the case. The addition made be deleted. Just and proper relief be granted to the appellant in this respect. 6. On facts and circumstancing prevailing in the case and as per provisions & scheme of the Act it be held that the AO erred in presuming and the Hon'ble CIT(A) erred in confirming that an amount of Rs.15,00,000/- has been paid in cash for purchase of immovable property by the appellant and his brother jointly on the basis of document found and seized in the course of search conducted at the premises of a third party. 7. On facts and circumstances prevailing in the case and as per provisions & scheme of the Act, it be held that an adhoc addition made of Rs.7,50,000/- on account of alleged unexplained investment merely on the basis of presumption is improper, unjustified and contrary to the provisions and scheme of the Act and facts prevailing in the case. The addition so made be deleted. Appellant be granted just and proper relief in this respect. 8. Assuming without admitting that the addition of Rs.7,50,000/- on account of alleged unexplained investment gets sustained, it be held the said amount deserves to be allowed to be claimed as cost of acquisition of the said investment. Just and proper relief be granted to the appellant in this respect. 9. The appellant be granted consequential relief if any as deemed to be fit.
The learned Authorized Representative for the assessee pointed out that preliminary issue is raised vide grounds of appeal No.1 to 3. First, we will address the preliminary issue raised in the present appeal, which affects the jurisdiction of completion of assessment in the case under section 143(3) r.w.s. 147 of the Act.
Briefly, in the facts of the case, the assessee had furnished the original return of income on 07.02.2008 disclosing income of ₹ 44,96,415/-. The
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assessment was completed under section 143(3) of the Act after making addition of ₹ 1,75,000/- on account of low household withdrawals. Search and seizure operations under section 132 of the Act were conducted in the case of Agarwal group on 17.12.2013. The assessee was also covered as part of the said group under section 132 of the Act. Another concern at Bhosari i.e. M/s. Camron Infrastructure India Ltd. (hereinafter referred to as ‘CIIL’) was also covered, wherein certain documents were found and seized. When Shri Raj Agarwal, Director of CIIL was confronted with the said documents by the Investigation Wing, in answer to question No.5 of his statement recorded under section 131 of the Act on 20.12.2012, he stated that seized documents were found and seized from his office premises pertained to purchase of land by S.N. and B.N. Agarwal at Ambethan. The box file was handed over by both the parties to see if some of the litigations in the said land could be resolved with the help of one Shri Rajendra D. Gaikwad. He further requested the Investigation Team to get the details in this regard from the concerned parties. The said statement given by Shri Raj Agarwal along with the seized documents were confronted to Shri S.N. Agarwal, brother of assessee. In his statement dated 17.02.2014, when he was questioned about the seized papers, he replied that he would consult Shri B.N. Agarwal on this matter and submit the details on 20.02.2014. Thereafter, on 03.03.2014, he admitted before the Investigation Wing, Pune that all the cheque payments as mentioned in the seized page No.10 were found in the records of Shri S.N. Agarwal and that of assessee; however, cash payment of ₹ 15 lakhs was not found in their records. The Assessing Officer further observed that exact copy of said page No.10 was also found and seized as paper No.30 of Bundle No.1 on 20.12.2013 from the corporate office premises of M/s. Veena Industries Ltd., wherein the assessee was Director and it was seized by Party No.AOX-1. In his explanation on the seized paper No.30 before DDIT(Inv), Shri S.N. Agarwal referred to his reply
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submitted vide letter dated 03.03.2014, which has already been referred. The seized document is scanned under para 2.3 at page 3 of assessment order. The Assessing Officer then, observed that page pertained to transaction of land bearing Gat No.150, Ambethan, Tal. Khed, Pune. The said land was purchased by assessee and his brother Shri S.N. Agarwal from Chavan family vide registered document dated 22.02.2007 for agreed consideration of about ₹ 2.90 crores. But apart from the said consideration, cash payment of ₹ 15 lakhs was also reflected on the said page. The Assessing Officer then notes that as the assessee and his brother had failed to explain the source of cash payment, then it was to be believed that income of assessee to the extent of his share i.e. ₹ 7,50,000/- had escaped assessment within meaning of section 147 of the Act on account of failure on the part of assessee to fully and truly disclose all the facts.
Another search and survey action was carried out in the case of Shri Pravin Kumar Jain and his group on 01.10.2013 and it was noted that he was providing accommodation entries of various nature like bogus unsecured loans, bogus share applications and bogus sales, books of account of different share companies were also under his control and further pen drive was also found during the course of search. Statements of various persons were recorded and the contents are referred in the assessment order and the list of companies controlled by Shri Pravin Kumar Jain whose books of account were found were also impounded. The list of said concerns are placed at pages 15 and 16 and part of page 17 of assessment order. The Assessing Officer further noted that the name of assessee was appearing in the list of beneficiaries and the assessee had also taken accommodation entries from the entities operated and controlled by Shri Pravin Kumar Jain. The list of aforesaid entries on account of unsecured loans totaling ₹ 2.90 crores is available at page 8 of assessment
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order. The Assessing Officer thus, concluded that it was proved beyond the doubt that the assessee had taken accommodation entries to the extent of ₹ 2.90 crores in the form of bogus unsecured loans; ₹ 1,14,742/- as non- genuine interest expenses and had also failed to explain the source of cash payment of ₹ 15 lakhs, where the assessee’s share was ₹ 7.50 lakhs on page No.10 of Bundle No.1, seized from the office of CIIL and page 30 of Bundle No.1 seized from the office of M/s. Veena Industries Ltd. and hence, it was believed that income of assessee to the extent of his share i.e. ₹ 2,98,64,742/- had escaped assessment. Therefore, proceedings under section 147 of the Act were initiated. Accordingly, the Assessing Officer recorded reasons for reopening the assessment which are available at page 19 of assessment order. Thereafter, notice under section 148 of the Act was issued on 28.03.2014. In response thereto, the assessee vide letter dated 23.04.2014 submitted return disclosing income of ₹ 46,71,420/-. The assessee requested for copy of reasons to believe recorded under section 147 of the Act, which were supplied by the Assessing Officer vide letter dated 25.04.2014. The assessee was asked to file objections, if any. However, the assessee did not submit any objections during the course of assessment proceedings. Subsequently, notice under section 143(2) of the Act was issued to the assessee and the case of assessee was taken up for scrutiny.
The assessee in appeal before the CIT(A) challenged the assessment framed under section 143(3) r.w.s. 147 of the Act on the ground that framing of assessment under section 147 of the Act after issue of notice under section 153A of the Act was bad in law and invalid. The assessee also challenged the proceedings initiated and completed under section 147/148 of the Act, wherein the assessment was framed without granting opportunity to raise objections on reopening of assessment proceedings. Further issues were raised on merits of
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additions. The CIT(A) vide para 3.1 took note of reasons recorded for reopening the assessment, which are reproduced at pages 6 and 7 of appellate order. The CIT(A) also took note of the fact that the assessee filed return of income on 23.04.2014 in response to notice issued under section 147 of the Act. The assessee requested for supply of copy of reasons recorded which were given by the Assessing Officer on 25.04.2014. Thereafter, the assessee sought inspection of file and also to supply the statement given by Shri Pravin Kumar Jain. The Assessing Officer on 15.09.2014 informed the assessee that copies of statements recorded during the course of search and copies of seized material had already been supplied to him by DDIT(Inv) and also informed that his request to supply copy of letter forwarded to DDIT(Inv), dated 20.03.2014 could not be acceded to as it was internal document of the Department. The Assessing Officer forwarded the gist of findings of said letter to the assessee. The CIT(A) notes that thereafter the assessee did not file any objections against reasons recorded by the Assessing Officer and participated in re- assessment proceedings. Vide para 3.1.1 at page 8 of appellate order, the CIT(A) noted that in between the Assessing Officer issued notice for the year under consideration under section 153A of the Act on 12.05.2014. The assessee had raised the issue vide ground of appeal No.1 before the CIT(A) that after the issuance of notice under section 153A of the Act, proceedings pending under section 147 of the Act had abated and the order passed under section 143(3) r.w.s. 147 of the Act was invalid. The said objection was forwarded to the Assessing Officer for his comments. The Assessing Officer in turn, submitted report dated 13.08.2015 and the same is reproduced under para 3.1.1 at pages 8 and 9 of appellate order. In reply, the Assessing Officer intimated that the premises of assessee was searched on 17.12.2013 and the proceedings covered under section 153A of the Act i.e. for six years started from assessment year 2008-09 to 2013-14 and the year under consideration
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was assessment year 2007-08. The Assessing Officer further reported that notice under section 153A of the Act dated 12.05.2014 was issued by mistake and the proceedings initiated had been dropped vide order sheet dated 05.07.2014. Hence, the contention of assessee that re-assessment order passed in the case being bad in law does not carry any weight. The Assessing Officer reiterated that 147 proceedings were initiated receiving information from the office of DDIT(Inv) and other information and documents seized and forwarded and hence, notice issued under section 148 of the Act was a valid notice.
The assessee was given an opportunity to comment on the report and he commented that during the course of appeal hearing, the assessee had moved an application for admission of additional evidence and the Assessing Officer was requested to give his comments on the same. However, the Assessing Officer resorted to give his comments on the grounds raised by the assessee and wanted to improve or enlarge his assessment order, which was not permissible. The CIT(A) noted that no notice under section 153A of the Act could be issued for assessment year 2007-08. Therefore, notice issued by Assessing Officer in this regard was void ab initio and had no legal force. The said proceedings were also dropped by the Assessing Officer. The CIT(A) further goes on to say that Issuance of invalid notice u/s 153A by no means would result in abatement of proceedings as per second proviso to section 153A of the Act. Ongoing proceedings u/s 147 were neither dropped nor got abated. He further held that since notice under section 147 of the Act was validly initiated and the assessee did not raise any objection and participated in re-assessment proceedings, then the same would not abate on the issue of illegal notice issued under section 153A of the Act. Vide para 3.1.5, the CIT(A) acknowledges that the Assessing Officer had given full opportunity by supplying
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reasons recorded as well as gist of information in his possession running into six pages, against which the assessee did not raise any objection and now at this juncture, the assessee has raised the issue of non-providing of relevant material and hence, the assessment being contrary to the provisions of law. The Assessing Officer in this regard also submitted remand report, wherein he clarified that the Assessing Officer had supplied copy of reasons to assessee on 25.04.2014. On 15.09.2014, queries raised by assessee were clarified by the Assessing Officer and other details which were required by assessee were also furnished. In the said letter, the Assessing Officer clearly stated that if the assessee had any objection against initiation of proceedings under section 148 of the Act, then the same may be communicated on or before 01.10.2015. Thus, period of 15 days was given to the assessee. However, the assessee did not raise any objections even after four months since reasons were supplied to him on 25.04.2014 and also the assessee participated in assessment proceedings and hence, from the chronological order of events, it was clear that the assessee was given opportunity to raise objections but the assessee did not file the same. In rejoinder, the assessee pointed out that after furnishing the reasons recorded for reopening the assessment along with incriminating documents relied upon by the Assessing Officer, request was made to the Assessing Officer to provide copies of all documents along with statements relied upon and being used against the assessee. However, the same were not provided by Assessing Officer. The assessee was not granted copies of incriminating document, so, he could raise any objections and hence, the assessee was prohibited from filing objections against reopening of assessment under section 147 of the Act. The assessee in this regard challenged the procedure of assessment and pointed out that principles laid down by the Apex Court in GKN Driveshafts India Ltd. Vs. ITO (2002) 125 TAXMAN 963 (SC) have not been followed by the Assessing Officer and
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therefore, proceedings under section 147 of the Act be held to be invalid. He further goes on to state that the assessee had not only sought the copies of documents / information / statements but also asked cross-examination of the evidences and parties whose statements were relied upon for reopening the assessment. However, the Assessing Officer denied the said request by stating that information received being internal departmental document, could not be shared. The assessee stressed that since the documents were not shared, they had no evidentiary value and further the assessee was not given an opportunity to cross-examine the evidences and witnesses, which was patent violation of natural justice. He stressed that assessment could be completed only if the documents were provided, but the CIT(A) agreed with the Assessing Officer that due procedure was followed and sufficient opportunity was given. The assessee was specifically asked to raise objections, if any, against reopening of assessment proceedings and all the relevant material was also supplied to the assessee. He further submits that where the assessee had taken accommodation entries and the information was gathered on the basis of statements recorded on oath of entry operators and it was sufficient for having reason to believe that the income had escaped assessment. Since the Assessing Officer was not supposed to frame assessment order at the stage of issuance of notice under section 147 of the Act; and where the assessee had not discharged the primary onus of proving genuineness of entries and then seeking of cross-examination of entry operators before discharging primary onus of proving cash credits as genuine was against the principles of Administrative Law. He further observed that there was another basis for reopening the assessment i.e. on the basis of documents found, wherein the assessee had made cash payments for purchasing piece of land. Since the assessee had not challenged the validity of reasons recorded on that aspect and hence, the objections raised by assessee were held to have no merit.
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The assessee is in appeal against the order of CIT(A).
The learned Authorized Representative for the assessee before us has filed chronological sequence of events along with supporting documents. After taking us through the basic facts of case of furnishing the original return of income and assessment being framed under section 143(3) of the Act and thereafter, notice being issued under section 148 of the Act, the learned Authorized Representative for the assessee pointed out that the assessee had furnished return of income and had filed the letter dated 23.04.2014 seeking reasons recorded for reopening the assessment. He further referred to copy of notice issued under section 153A of the Act on 12.05.2014 and pointed out that 153A proceedings were dropped on 05.07.2014 since the year under consideration was beyond period of six years. Referring to the order of Assessing Officer, it was pointed out that in para 6 at page 20 of assessment order, the Assessing Officer notes that there were no objections filed by assessee to reopen the assessment. Our attention was drawn to page 5 of Paper Book, wherein the assessee filed letter dated 14.05.2014 asking for reasons recorded for reopening the assessment, copy of reasons recorded; documents relied upon; statements of persons and also their cross- examination. The assessee further asked for letter of DDIT(Inv), on which basis the Assessing Officer refused on the ground that it was internal document. However, he gave gist of letter of DDIT(Inv), which is placed at pages 6 to 11 of Paper Book. However, verbatim copy of reasons for reopening the assessment were not given. All other issues raised by assessee were not referred and even the copy of letter of Shri Pravin Kumar Jain was not given. He stressed that cross-examination was not allowed. In respect of documents found at CIIL i.e. land deal and documents found at M/s. Veena Industries Ltd., where the assessee was Director, the name of assessee was
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not there at pages 14 and 15 of Paper Book. He referred to sale deed at page 60 of Paper Book and pointed out that the assessee never paid cash amount. The learned Authorized Representative for the assessee pointed out that 148 proceedings were started on account of two issues i.e. accommodation entries of Shri Pravin Kumar Jain and entry of cash in the land purchase of ₹ 15 lakhs. However, no opportunity was given to assessee to rebut the documents seized and even no cross-examination was allowed, hence the proceedings initiated under section 148 of the Act fails. In addition, he pointed out that even if 153A notice issued was not valid notice but once 153A notice has been issued to the assessee, then proceedings initiated under section 147 of the Act would fail. The learned Authorized Representative for the assessee then, placed reliance on the following decisions:- i) GKN Driveshafts India Ltd. Vs. ITO (2002) 125 TAXMAN 963 (SC) ii) Nitin P. Shah alias Modi Vs. DCIT (2005) 146 TAXMAN 536 (Guj) iii) CIT Vs. Kelvinator of India Ltd. (2010) 187 Taxman 312 (SC) iv) Oracle India (P.) Ltd. Vs. ACIT (2017) 83 taxmann.com 368 (Del) v) Sabh Infrastructure Ltd. Vs. ACIT in W.P (C) 1357/2016, judgment dated 25.09.2017
He then referred that where the addition has been made without giving cross-examination of witnesses, then such addition cannot be sustained. In this regard, he placed reliance on the following decisions:- i) Kishinchand Chellaram Vs. CIT (1980) 4 Taxman 29 (SC) ii) Jalco Financial Services (P) Ltd. Vs. ITO in ITA No.2250/Del/2010, relating to assessment year 2001-02, order dated 31.01.2014. iii) CIT Vs. Pradeep Kumar Gupta (2008) 303 ITR 95 (Del)
He pointed out that both Assessing Officer and CIT(A) had relied on the decision of the Hon’ble High Court of Delhi in CIT Vs. Nova Promoters &
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Finlease (P) Ltd. (2012) 18 taxmann.com 217 (Del), which has been overturned.
The learned Departmental Representative for the Revenue in reply, stated that abatement of proceedings can happen as per second proviso to section 153A of the Act. He relying on the orders of authorities below also placed reliance on the decision of Hon'ble Supreme Court in Phool Chand Bajrang Lal Vs. ITO (1993) 203 ITR 456 (SC) and also on the decision of Hon’ble High Court of Delhi in Bawa Abhai Singh Vs. DCIT (2002) 253 ITR 83 (Del).
The learned Authorized Representative for the assessee in rejoinder pointed out that case laws relied upon by the learned Departmental Representative for the Revenue do not cover the jurisdictional issue raised by the assessee. He further pointed out that Shri S.N. Agarwal in his statement has stated that cash payment was not recorded but he never admitted that cash was paid. The learned Authorized Representative for the assessee also pointed out that in Agarwal group of cases, there was no assessment under section 143(3) of the Act and addition has been made only on account of evidence found from Shri Pravin Kumar Jain and his statement.
We have heard the rival contentions and perused the record. The issue which has been raised in the present appeal is in respect of proceedings initiated under section 147/148 of the Act by way of grounds of appeal No.1 to 3. The learned Departmental Representative for the Revenue has furnished chronological sequence of events in the case of Agarwal Group Corporate Holding Pvt. Ltd. and has also remarked that almost identical sequence of even had occurred in the case of Shri Brijendra Nath Agarwal. The assessee in the
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case of Shri B.N. Agarwal has filed Paper Book, wherein documents have been taken note of and it transpires that some letters of same dates have been issued in both the cases. We are referring to the chronological sequence of events, documents filed by learned Departmental Representative for the Revenue but for the contents, we will refer to the letter filed in the case of assessee i.e. Shri B.N. Agarwal first. The case of assessee was reopened under section 147 of the Act by recording reasons for reopening the assessment and notice under section 148 of the Act was issued on 23.03.2014. In response, the assessee filed return of income on 23.04.2014, copy of which is placed at pages 3 and 4 of Paper Book. Thereafter, the assessee furnished another letter dated 23.04.2014, wherein the Assessing Officer was asked to issue verbatim copy of reasons recorded for issue of notice under section 148 of the Act. The said letter is placed at pages 3 and 4 (2) (in the case of Shri B.N. Agarwal). On 14.04.2014, the assessee had also sought inspection of file. The Assessing Officer vide letter dated 25.04.2014, placed at pages 7 and 8 of Paper Book, supplied reasons recorded for issue of notice under section 148 of the Act. We are referring to documents placed at pages 3 and 4 of assessee’s Paper Book, wherein reason for reopening is mentioned as the search conducted on Shri Pravin Kumar Jain, who had under his control various paper companies, which were used to provide accommodation entries to various entities. The assessee was alleged to have taken loan and paid interest thereon. The total loan in various hands is ₹ 2.90 crores and interest paid is ₹ 1,14,742/-. Further, reference was made to search and seizure proceedings in the case of CIIL, wherein brother of assessee had admitted that he along with assessee had in equal share purchased piece of land at Ambethan and had made cash payment of ₹ 15 lakhs on 23.02.2007. The Assessing Officer then comments on the information passed by DDIT(Inv) and holds that in view thereof, the stated amount of ₹ 2.91 crores and ₹ 7,50,000/- represent
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undisclosed income of assessee, therefore, it was held to be a fit case. The assessee vide letter dated 14.05.2014 points out that for the issue of notice under section 148 of the Act, your goodself (AO) had relied upon above information / documents / statements / materials of third party, wherein reference was made to both search at Shri Pravin Kumar Jain and at premises of CIIL. The assessee then requests “we may be given copies of all such statements and copy of letter forwarded by DDIT(Inv), dated 20.03.2014 along with all supporting documents as it will have direct bearing on the case….” The assessee further requested that opportunity to cross-examine the persons whose material / statements were being relied upon be given, then the assessee has enlisted documents required to be given, which are as under:- 1. Copy of letter forwarded by DDIT (Inv), Unit II(1), Pune dtd 20/03/2014 2. Copy of statements/material given by Shri Praveen Jain. Copy of relevant supporting to above documents, if any. 3.
The assessee then again reiterates that after issuing the said documents, an opportunity to cross-examine all evidences relied upon may be given. He also says that he is ready to pay compliance or fees for the issue of copies. The assessee further states that he would file detailed objections, if any, for reopening of assessment thereafter. The Assessing Officer vide letter dated 15.09.2014 alleges that the copies of statements recorded during the course of search and in post-search verification along with copies of seized material had already been issued to the assessee by the office of DDIT(Inv) and as far as the copy of information forwarded by DDIT(Inv) was concerned, the Assessing Officer pointed out that the said document was an internal departmental document and cannot be issued to assessee. However, gist of the same was given, which is placed at pages 6 to 11 of Paper Book. The Assessing Officer concludes at page 11 as under:- “In my opinion, the abovestated details would address the issues raised by you in your abovereferred letter. As far the your others contentions are concerned
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the same may be addressed during the course of making final assessment as well. Please note that in case you have any objection/objections against the initiation of proceedings u/s. 148 in your case, you are requested to communicate the same on or before 1st October, 2014 as it may not be possible for this office to address the same at a later date.” (Underline provided by us for emphasis)
The assessee again files another letter dated 24.11.2014, again requesting for issue of copies of documents and an opportunity to cross- examination, which is placed at pages 12 and 13 of Paper Book. In this, the assessee requests for specific copies of documents, which reads as under:- a) Copy of letter dated 07/03/2014 officially forwarded by DGIT(Iv.) Mumbai. b) Copy of statement recorded u/s. 132(4) of Shri Praveen Jain c) It is noted from above said letter and alleged by you that “Shri Praveen Jain used to work on a laptop and used to maintain his parallel books of account on a pen drive.” It is requested that in case any thing of assessee is found, provide us copies of the same. d) It is noted from above said letter and alleged by you that Shri Praveen Jain has stated that “I mostly provide accommodation entries through brokers who are known to me.” It is requested to give details of who is the broker in this case. e) Copy of Page No. 6 to 15 of bundle No.1 seized from office of M/s. Comron Infrastructure India Ltd. (CIIL) at Bhosari. f) Details of the Directors of the companies as mentioned in the above letter.
The assessee thereafter also asked for cross-examination of different persons whose statements / materials were being relied upon, which reads as under:- a) Shri Praveen Jain b) Broker(s) in the case of the assessee c) Directors of the Companies as mentioned in the above letter d) Shri Raj Agarwal e) Chandrakant Chiman Chavan f) Dyneshwar Chiman Chavan g) Maruti Bala Chavan
The copy of said letter is placed at pages 12 and 13 of Paper Book. The assessee also files replies to assessment proceedings reserving the right to object to re-assessment proceedings. The learned Authorized Representative
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for the assessee further referred to the seized documents from the premises of CIIL and points out that in respect of purchase of land at Ambethan, list of cheques paid to different persons was provided in the said documents, which totals to ₹ 2.90 crores; in that list of cheque payments, name of assessee is missing. Further, on the said document itself, there is cash payment of ₹ 15 lakhs, which also do not relate to the assessee as the name of assessee is missing. He then referred to the affidavit of Shri Pravin Kumar Jain, which is placed at pages 16 to 20 of Paper Book, wherein he has retracted the statement recorded at the time of search. The said retraction statement was submitted by the assessee vide letter dated 05.02.2015 to the Assessing Officer, copy of which is placed at page 21 of Paper Book.
The issue which arises in the present appeal in such scenario, is whether re-assessment proceedings which have been completed against assessee, can stand in the eyes of law, where (a) documents asked for have not been supplied to the assessee and (b) cross-examination of witnesses have not been provided to the assessee. Before proceeding further, it may be pointed out that the Assessing Officer refers to the proceedings before DDIT(Inv) and alleges that all the documents have been handed over by DDIT(Inv) to the assessee and hence, they were not being provided. It is not clear as to what documents were provided by DDIT(Inv). Even if it was so, then it was incumbent upon the Assessing Officer to provide the documents, which were in his possession and which he was seeking to rely on in order to complete assessment against assessee. The assessee has time and again asked for the copies of documents and even was ready to pay copying charges but the Assessing Officer had blatantly refused to give the documents on the premise that they have already been received by assessee. But no such evidences of such documents being handed over by DDIT(Inv) has been filed
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on record. Another aspect to be noted is that the Assessing Officer is relying on statements of two persons, the assessee had sought cross-examination of the said persons and of many evidences also, which have not been provided by Assessing Officer. Another aspect of the issue is that the Assessing Officer has purely relied on the statement of Shri Pravin Kumar Jain of having provided accommodation entries in order to first initiate re-assessment proceedings and then also to complete re-assessment proceedings but the copy of said statement made by Shri Pravin Kumar Jain has been refused by him. After the search proceedings, the assessee has even filed copy of affidavit of Shri Pravin Kumar Jain in this regard, but the same has not been commented on by the Assessing Officer nor referred to before making addition in the hands of assessee. The issue which has been raised before us is whether in such circumstances, re-assessment order passed by the Assessing Officer without providing copies of documents and without affording cross-examination is invalid and bad in law.
One more aspect is to be noted is that notice issued under section 153A of the Act. Search under section 132 of the Act was conducted at the premises of assessee. However, it is not in dispute that the year under consideration was beyond the period of six years from the date of search, which is covered under the proceedings under section 153A of the Act. In such circumstances, the plea of assessee that proceedings initiated under section 147 of the Act would come to an end once the notice under section 153A of the Act was issued to the assessee. First of all, the said notice was invalid and also the said proceedings initiated were dropped by Assessing Officer, hence invalid notice issued would not invalidate the re-assessment proceedings already initiated against assessee.
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The issue which needs to be addressed is non providing of copies of documents and non affording of cross-examination of the witnesses is whether fatal to the assessment proceedings. The Assessing Officer alleges that the documents were provided by DDIT(Inv). However, it is not clear as to copies of what documents have been given by DDIT(Inv). In any case, the investigation was carried out not in the hands of assessee but in the hands of other person, so once the assessee asks that the documents be issued to it on which reliance is placed upon for reopening the assessment, then it was incumbent upon the Assessing Officer to provide the same to the assessee in order to enable the assessee to peruse the same and then point out whether by relying on the said documents, the re-assessment has been validly reopened. May be, the letter which is forwarded by DDIT(Inv) to the Assessing Officer is an internal document and the Assessing Officer has provided gist of the same to the assessee. However, there are other documents the assessee has asked for i.e. copies of page No.6 to 15 of bundle No.1 seized from the office of CIIL, Bhosari, the details of Directors of the companies as mentioned in the said letter. In addition, the assessee had sought cross-examination of different persons whose statements / materials seized from them were being relied upon. However, we have already made reference to the said documents in paras 15, 17 and 18 hereinabove. The assessee has time and again asked for the copies of said documents but the same have not been supplied to the assessee. The assessee has also sought cross-examination of the persons whose statements were being relied upon to propose re-assessment in the hands of assessee, for which reasons were recorded for reopening the assessment but none of the cross-examinations have been allowed. The non- allowance of cross-examination has been held by the Hon'ble Supreme Court in M/s. Andaman Timber Industries Vs. Commissioner of Central Excise in Civil Appeal No.4228 of 2006, judgment dated 02.09.2015 to be most fatal. We
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have already relied on the said ratio laid down in M/s. Jaydeep M. Kher Vs. DCIT in ITA No.973/PN/2013, relating to assessment year 2003-04, order dated 28.12.2016, wherein also the addition was made in the hands of said assessee on the basis of statements recorded of other person and the assessee had time and again sought for cross-examination which was not provided and it was held as under:- “16. The first plea raised by the assessee before us is lack of opportunity given during the course of assessment proceedings which has impaired his rights. The assessee is aggrieved by the order of Assessing Officer in passing the assessment order relying on the statement of Shri Aditya Dadhe, which was never confronted to the assessee. The said statement was recorded during the course of investigation proceedings by the ADIT(Inv)-4 and not by the Assessing Officer during the course of assessment proceedings. Further, the said statement was relied on without confronting the assessee during the course of assessment proceedings that such a statement exists on record. On receipt of assessment order, the assessee became aware of the reliance of Assessing Officer on said statement and before the CIT(A) he raised a plea that he should be given copy of statement and also be allowed an opportunity not only to examine the witness but also be allowed an opportunity to cross- examine the witness before the Assessing Officer. The CIT(A) in fairness while passing order under section 250(4) of the Act considered the submissions of assessee and remanded the issue to the file of Assessing Officer to carry out further investigations and also directed the Assessing Officer to give the copy of statement of Shri Aditya Dadhe to the assessee and also examine the said person in assessee’s presence and also to allow the assessee to cross- examine him. The Assessing Officer in the first instance gave the copy of statement recorded to the assessee. However, despite several requests by the assessee to examine the said person in his presence and also allow cross- examination of the said witness, the Assessing Officer time and again rejected the plea of assessee and asked him to file his say on the averments in the statement recorded behind back of the assessee. Vide letter dated 14.09.2012, copy of which is placed at page 25 of the Paper Book, the Assessing Officer goes one step ahead and states that the said person would be cross-examined by the undersigned and report would be submitted accordingly to the CIT(A), Pune i.e. the Assessing Officer does not allow examination of the said Shri Aditya Dadhe in assessee’s presence and further goes on to say that the cross-examination would be done by the Assessing Officer and report would be submitted before the CIT(A). Another request made by the assessee thereafter on 04.10.2012 was also dismissed by the Assessing Officer on similar lines. Thereafter, the assessee approached the CIT(A) for suitable directions on 17.10.2012 and asked the Assessing Officer to hold the remand report. However, the Assessing Officer submitted remand report in total defiance and without complying with the directions of CIT(A). The said remand report was furnished on 22.10.2012. Thereafter, during the course of appellate proceedings, the assessee again made a request to the CIT(A) that his directions have not been complied with by the Assessing Officer and no examination of witness has taken place in his presence nor any cross- examination has been allowed but the CIT(A) goes one step ahead to say that the parties are related parties and there is no need to give cross-examination. He further holds that it seems to be tax planning between the parties in order to avoid the payment of taxes and dismissed the plea of assessee in entirety.
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The issue which arises before us is whether where the assessee has not been given the copy of statement relied on by the Assessing Officer during the course of assessment proceedings and addition has been made in the hands of assessee on the basis of such recorded statement, then whether such an act of the Assessing Officer is fatal. Further, in case the so-called statement recorded at the back of assessee by an officer, who was an Investigation Officer and not the adjudication officer, is handed over to the assessee during the course of appellate proceedings and the said witness is not examined in the presence of assessee nor his request of allowing examination and / or cross- examination of the witness allowed during the course of appellate proceedings, can such a statement be the basis for making the addition in the hands of assessee. 18. The Hon’ble Supreme Court in M/s. Andaman Timber Industries Vs. Commissioner of Central Excise (supra) took note of the plea of assessee before the Tribunal that it was not allowed cross-examination of dealers whose statements were relied on by the adjudicating authority in passing the orders, wherein the Tribunal rejected the plea in the following manner:- “6. The plea of no cross examination granted to the various dealers would not help the appellant case since the examination of the dealers would not bring out any material which would not be in the possession of the appellant themselves to explain as to why their ex factory prices remain static. Since we are not upholding and applying the ex factory prices, as we find them contravened and not normal price as envisaged under section 4(1), we find no reason to disturb the Commissioners orders.” 19. The assessee challenged the said order of Tribunal before the Hon’ble Supreme Court and it was held by the Apex Court that not allowing the assessee to cross-examine the witness by the adjudicating authority, where the statements of witnesses were made basis for impugned order, was a serious flaw which makes the order invalid in as much as it amounted to violation of principles of natural justice. The relevant findings of the Hon’ble Supreme Court are as under:- “According to us, not allowing the assessee to cross-examine the witnesses by the Adjudicating Authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity inasmuch as it amounted to violation of principles of natural justice because of which the assessee was adversely affected. It is to be borne in mind that the order of the Commissioner was based upon the statements given by the aforesaid two witnesses. Even when the assessee disputed the correctness of the statements and wanted to cross-examine, the Adjudicating Authority did not grant this opportunity to the assessee. It would be pertinent note that in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that cross- examination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their ex-factory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the appellant wanted from them.” 20. The Hon’ble Supreme Court also observed that it was not for the Tribunal to guess work as for what purpose the appellant wanted to cross-
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examine those dealers. The Hon’ble Supreme Court was also against the manner in which the adjudicating authority acted and held that it was not for the adjudicating authority to pre-suppose as what could be the subject matter of cross-examination and make the remarks as mentioned above. The Hon’ble Supreme Court held that if the testimony of two witnesses is discarded, then there was no material with the Department on the basis of which it could justify its action, as the statements of aforesaid two witnesses were only the basis of issuing show cause notice, hence the impugned order passed by the Tribunal was set aside and the appeal of the assessee was allowed. 21. The Hon’ble Supreme Court in Sahara India (Firm) Vs. CIT and Another (2008) 300 ITR 403 (SC) while deciding issue of principles of natural justice and Rule of audi alteram partem held as under:- “11. Rules of "natural justice" are not embodied rules. The phrase "natural justice" is also not capable of a precise definition. The underlying principle of natural justice, evolved under the common law, is to check arbitrary exercise of power by the State or its functionaries. Therefore, the principle implies a duty to act fairly, i.e., fair play in action. As observed by this court in A. K. Kraipak v. Union of India (1969) 2 SCC 262, the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. They do not supplant the law but supplement it. (Also see : ITO v. Madnani Engineering Works Ltd. (1979) 2 SCC 455. 12. In Swadeshi Cotton Mills Co. Ltd. v. Union of India (1981) 1 SCC 664, R. S. Sarkaria J., speaking for the majority in a three-judge Bench, lucidly explained the meaning and scope of the concept of "natural justice". Referring to several decisions, his Lordship observed thus (SCC p. 666 ; headnote) : "Rules of natural justice are not embodied rules. Being means to an end and not an end in themselves, it is not possible to make an exhaustive catalogue of such rules. But there are two fundamental maxims of natural justice, viz., (i) audi alteram partem, and (ii) nemo judex in re sua. The audi alteram partem rule has many facets, two of them being (a) notice of the case to be met ; and (b) opportunity to explain. This rule cannot be sacrificed at the altar of administrative convenience or celerity. The general principle as distinguished from an absolute rule of uniform application seems to be that where a statute does not, in terms, exclude this rule of prior hearing but contemplates a post decisional hearing amounting to a full review of the original order on merits, then such a statute would be construed as excluding the audi alteram partem rule at the pre-decisional stage. Conversely if the statute conferring the power is silent with regard to the giving of a pre-decisional hearing to the person affected and the administrative decision taken by the authority involves civil consequences of a grave nature, and no full review or appeal on merits against that decision is provided, courts will be extremely reluctant to 1.[1969] 2 SCC 262 ; 1970] AIR 1970 SC 150. 2.[1979] 2 SCC 455 ; [1979] 118 ITR 1 (SC). 3.1981] 1 SCC 664 ; [1981] 51 Comp Cas 210 (SC) construe such a statute as excluding the duty of affording even a minimal hearing, shorn of all its formal trappings and dilatory features at the pre-decisional stage, unless, viewed pragmatically, it would paralyse the administrative process or frustrate the need for utmost promptitude. In short, this rule of fair play must not be jettisoned save in very exceptional circumstances where
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compulsive necessity so demands. The court must make every effort to salvage this cardinal rule to the maximum extent possible, with situational modifications. But, the core of it must, however, remain, namely, that the person affected must have reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise." 13. Initially, it was the general view that the rules of natural justice would apply only to judicial or quasi-judicial proceedings and not to an administrative action. However, in State of Orissa v. Dr. Miss Binapani Dei(1), the distinction between quasi-judicial and administrative decisions was perceptively mitigated and it was held that even an administrative order or decision in matters involving civil consequences, has to be made consistently with the rules of natural justice. Since then the concept of natural justice has made great strides and is invariably read into administrative actions involving civil consequences, unless the statute, conferring power, excludes its application by express language. 14. Recently, in Canara Bank v. V. K. Awasthy(2), the concept, scope, history of development and significance of the principles of natural justice have been discussed in extenso, with reference to earlier cases on the subject. Inter alia, observing that the principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights, the court said (headnote) : "Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and 1.[1967] 2 SCR 625 ; [1967] AIR 1967 SC 1269. 2.[2005] 6 SCC 321. an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression 'civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life." 15. Thus, it is trite that unless a statutory provision either specifically or by necessary implication excludes the application of the principles of natural justice, because in that event the court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences for the party affected. The principle will hold good irrespective of whether the power conferred on a statutory body or tribunal is administrative or quasi-judicial.” 22. In the facts of the present case before us, there is violation of principles of natural justice as the statement of Shri Aditya Dadhe which was made the basis for making addition was not given to the assessee by the Assessing Officer and his request to examine and cross-examine the said witness was rejected by the Assessing Officer in the remand proceedings and also by the
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CIT(A) when this fact was brought to his knowledge. The assessment order was passed in the present case relying on the said statement which was recorded during investigation by ADIT(Inv) and not by the Assessing Officer during assessment proceedings. The said statement was recorded at the back of assessee and copy of which was not given to assessee and assessment order was passed relying on the same. The assessee was held liable for tax on the basis of said statement. But in case the testimony of the said witness is discarded as before the Apex Court for violation of Rule of audi alteram partem, then there is no basis for making addition in the hands of assessee, since both the authorities below have made addition on the basis of statement given by Shri Aditya Dadhe. Accordingly, for violation of principles of natural justice and Rule of audi alteram partem, the addition made by the Assessing Officer and upheld by the CIT(A) is not sustainable and hence, the same is deleted. The preliminary issue raised vide ground of appeal No.3 in this regard is allowed and the issue on merits becomes academic.”
The facts of present case are similar, wherein no cross-examination has been allowed though the assessee has time and again asked for the same. Even if we accept the reasoning of Assessing Officer that seized documents have been supplied to the assessee but no cross-examination of witnesses has been provided to the assessee. In such scenario, invoking of jurisdiction under section 147/148 of the Act gets affected as the assessee has a right to file objections to reopening of assessment and such a right of assessee has been violated. The learned Authorized Representative for the assessee has pointed out that in the absence of getting the documents relied upon and in not allowing cross-examination of witnesses, the assessee was not in a position to file objections against reopening of assessment. The jurisdiction is conferred upon the Assessing Officer for making re-assessment in the case of assessee only on the basis of aforesaid seized documents and the communication from DDIT(Inv), who in turn, has relied on the statements of various persons who were searched. Hence, in such circumstances, it was incumbent upon the Assessing Officer not only to allow cross-examination of witnesses but also furnish the copies of all the seized documents relied upon and even the letter forwarded by DDIT(Inv). It is this letter which has been relied upon by Assessing Officer to carry out investigation against assessee. Hence, the same partakes the character of an evidence to be used against assessee and
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the principles of natural justice demand that such evidence which is to be used against assessee, then copy of the same should be made available to the assessee. The contents of said letter have been made available by the Assessing Officer, hence we do not understand what stopped him for making available the letter, copy of which was forwarded by DDIT(Inv). The perusal of assessment order reflects that the Assessing Officer has elaborately referred to the contents of said letter and relied upon the investigation carried out by DDIT(Inv) in order to reopen the assessment in the case of assessee. In the totality of the above said facts and circumstances, where the assessee has been denied copy of statement recorded and copy of letter issued by DDIT(Inv), which has been extensively relied upon by the Assessing Officer to record reasons for reopening the assessment and failure of Assessing Officer in not providing cross-examination of witnesses in order to enable the assessee to meet the case of both reopening and also the assessment being carried out against the assessee on the basis of such statements, violates the basic fundamental principle of natural justice and in such scenario, the assessment which has been completed against the assessee cannot stand. Accordingly, we hold so.
The Hon'ble Supreme Court in GKN Driveshafts India Ltd. Vs. ITO (supra) has held that it is incumbent upon the Assessing Officer to provide an opportunity to the assessee to submit his objections to reopening of assessment and where the Assessing Officer has failed to provide such an opportunity, re-assessment order cannot stand. In the facts of present case, since the assessee did not receive copies of documents relied upon and also no cross-examination of witnesses on whose statements the Assessing Officer relied upon to record reasons for reopening assessment, was provided to the assessee, hence the assessee was prevented from filing the objections to
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reopening of assessment. In such scenario, even if the assessee was well aware of reasons for reopening but the failure to provide opportunity to file objections to the reopening of assessment violates the governing principle of law and hence, re-assessment order needs to be quashed and set aside.
The Hon’ble Bombay High Court in Agarwal Metals and Alloys Vs. ACIT (2012) 346 ITR 64 (Bom) has propounded such a view in turn relying on the judgment of the Hon'ble Supreme Court in GKN Driveshafts (India) Ltd. Vs. ITO (supra).
The learned Authorized Representative for the assessee has raised various issues of change of opinion in the case of Shri B.N. Agarwal, wherein original assessment was completed under section 143(3) of the Act. However, since we have decided the issue on the other aspects of case and held the assessment order invalid and bad in law, we are not addressing the same. It may be pointed out herein itself that since the Assessing Officer did not provide copies of statements and did not allow cross-examination, then the plea of assessee that it could not object to the reasons recorded for reopening the assessment has merits to be allowed and for such act, wherein no proper opportunity was given to the assessee to file objections to re-assessment, proceedings initiated under section 147/148 of the Act cannot stand. There is no merit in the observations of CIT(A) that the assessee had participated in assessment proceedings and hence, it cannot be said that he had any objections to reopening of assessment. The preliminary issue affecting the jurisdiction of Revenue authorities can be raised at any stage and accordingly, we admit the plea of assessee and hold that assessment order passed in the case without jurisdiction is both invalid and bad in law. The grounds of appeal No.1 to 3 raised by assessee are thus, allowed. Since the preliminary issue
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has been decided, we are not addressing the other grounds of appeal raised by assessee.
The facts and issues in ITA No.1667/PUN/2015 are identical to the facts and issues in ITA No.1666/PUN/2015 and our decision in ITA No.1666/PUN/2015 shall apply mutatis mutandis to ITA No.1667/PUN/2015.
In the result, both the appeals of assessee are allowed as indicated above.
Order pronounced on this 29th day of November, 2018.
Sd/- Sd/- (ANIL CHATURVEDI) (SUSHMA CHOWLA) ऱेखा सदस्य / ACCOUNTANT MEMBER न्याययक सदस्य / JUDICIAL MEMBER ऩुणे / Pune; ददनाांक Dated : 29th November, 2018. GCVSR आदेश की प्रयतलऱपप अग्रेपषत/Copy of the Order is forwarded to : 1. अऩीऱाथी / The Appellant; 2. प्रत्यथी / The Respondent; 3. आयकर आयुक्त(अऩीऱ) / The CIT(A)-12, Pune; The Pr.CIT(Central), Pune; 4. ववबागीय प्रतततनधध, आयकर अऩीऱीय अधधकरण, ऩुणे “फी” / DR 5. ‘B’, ITAT, Pune; गार्ड पाईऱ / Guard file. 6. आदेशािुसार/ BY ORDER, सत्यावऩत प्रतत //True Copy// वररष्ठ तनजी सधिव / Sr. Private Secretary आयकर अऩीऱीय अधधकरण ,ऩुणे / ITAT, Pune