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Income Tax Appellate Tribunal, “B” BENCH : BANGALORE
Before: SHRI ARUN KUMAR GARODIA & SHRI LALIET KUMAR
O R D E R Per Shri A.K. Garodia, Accountant Member These appeals and CO were heard together and are being disposed of by way of this common order for the sake of convenience.
ITA Nos. 820 to 822 & 1107/Bang/2015 & C.O. No. 216/Bang/2015 Page 2 of 9 2. First we take up the appeal of the revenue for Assessment Year 2006-07, 2007-08 and 2008-09 in to 822/Bang/2015. Ground no. 2 in all these appeals is identical which reads as under. “2. On the facts and in the circumstances of the case the CIT (A) erred in holding that issue of reassessment u/s 147 is bad in law.”
The ld. DR of revenue supported the assessment order. He also submitted that as per identical Para no. 7.2 in all orders of CIT(A), it was held by him that the objections raised by the assessee vide letter dated 11.01.2013 were not disposed of by way of any speaking order of AO and therefore, the assessment proceedings are bad in law and were cancelled. He submitted that it is not necessary for the AO to pass a separate order for disposing of objections raised by the assessee against the validity of reopening. He supported the assessment order. As against this, the ld. AR of assessee supported the order of CIT (A).
We have considered the rival submissions. For the sake of ready reference, we reproduce Para no. 7.2 of order of CIT (A) which is identical in all years. The same reads as under. “7.2 It is a settled position of law that in view of Hon'ble Supreme Court in the case of G.K N Driveshafts (India) Ltd (2003) 259 ITR 19 (SC), the Assessing Officer is duty bound to provide the reasons recorded by him for initiating the proceeding u/s.147 within a reasonable time, and decide the Objections if any, filed by the appellant by a speaking order, before proceeding to complete the assessment. It is also settled position of law that the appellant needs to be provided the certified copy of the complete reasons as recorded and not mere extract, summary, gist or paragraph out of the reasons recorded. This is necessary to enable the assessee to raise proper and effective objections if any on facts and in law, which has to be disposed of before proceeding further. In the present case, after the issue of notice u/s 148 on 20.3.2012 to file return within 30 days, no action was taken by the Assessing Officer till 4.10.2012 when assessee was asked to comply with notice u/s 148. Even after assessee filed letter dated 22.10.2012 requesting the Assessing Officer to treat the return filed u/s 139 on 25.7.2006 as return filed u/s 148 and seeking the reasons recorded for initiating proceeding u/s 147/148, the Assessing Officer issued notice u/s 143(2) on 26.12.2012 before providing the reasons (reasons were provided vide letter dated 28.12.2012 which is more than two months after the to 822 & 1107/Bang/2015 & C.O. No. 216/Bang/2015 Page 3 of 9 request was made by the appellant) and allowing the assessee to file objections if any. The reassessment proceeding could not have been legally gone ahead by the issue of notice u/s 143(2) without first providing the certified copies of reasons within a reasonable time and allowing reasonable time to the assessee to object with regard to assumption of fact, procedural compliance and jurisdiction to re- open an assessment. Reliance is placed on the decision reported in case of CIT Vs VRSR Securities P Ltd (2013)Tax Pub(DT) 1788 (All.)- IT.A 94/2009 order dated 28.2.2013, where it was held that reassessment proceeding cannot be initiated if reasons not supplied, and such defect cannot be cured if the same is supplied in the appellate proceedings by CIT(A). In case of Raymond Woolen Mills Ltd V ITO (1999) 299 ITR 34 (SC) it has been held that in case of S.147 it is open to assessee to prove that assumption of facts made in the notice was erroneous, and assessee may also prove that no new facts came to the knowledge of Assessing Officer. Thus opportunity to challenge proceeding u/s 147 by the assessee cannot be curtailed by issue of notice u/s 143(2) and proceeding to frame the re- assessment. The fact that the objections raised vide letter dated 11.1.2013 (Para only 1-7 out of 1-9 reproduced in Para 1 of the assessment order) were not disposed of by any speaking order by the Assessing Officer also vitiates the reassessment proceedings. In view of the above, the initiation of re-assessment proceeding without supply of reasons recorded, and further proceeding without disposing of the objections raised, is held to be vitiated and bad in law, and hence cancelled.”
From the above Para reproduced from the order of CIT(A), it is seen that this is only finding given by the CIT(A) in all years except A. Y. 2006 – 07 that the objections raised by the assessee vide letter dated 11.01.2013 were not disposed of by the AO by any speaking order. In AY 2006 – 07, this is also held by CIT (A) in Para 7.3.2 of his order for that year that the notice u/s 148 was issued on 22.03.2011 and the same is after four years from the end of the relevant A. Y. 2006 – 07. We fail to understand as to how the CIT (A) is saying so because the period of four years from the end of the relevant A. Y. 2006 – 07 expires on 31.03.20111 and the notice u/s 148 for that year as per CIT (A) was issued on 22.03.2011. Hence, it is before four years and therefore valid.
In Para 7.2, learned CIT (A) is relying on a decision reported in case of CIT vs. VRSR Securities Pvt. Ltd. in ITA 94/2009 dated 28.02.2013 and as per CIT (A), it was held in this judgment that reassessment proceedings cannot be initiated to 822 & 1107/Bang/2015 & C.O. No. 216/Bang/2015 Page 4 of 9
if reasons not supplied. In the present case, reasons were supplied by the AO to the assessee and therefore, this decision is not relevant in the present case.
The learned CIT (A) has also referred to a judgment of Hon’ble apex court rendered in the case of Raymond Woolen Mills Ltd V ITO (1999) 299 ITR 34 (SC) in Para 7.2 of his order reproduced above. There is no such judgment as per this citation. A judgment of Hon’ble apex court rendered in the case of Raymond Woolen Mills Ltd V ITO is available on page 34 of 236 ITR. Hence, we take in this way that there is a typing mistake about citation and hence, we consider this judgment as the judgment referred to by CIT (A) and examine its applicability in the present case. This judgment is dated 17.12.1997 and A. Y. is not available in the judgment but the reference is made to section 147 (a). Section 147 was amended by Direct Tax Laws (Amendment) Act, 1987 w.e.f. 01.04.1989, In the amended provisions of section 147, there is no clause (a). Hence, it seems that this judgment is in respect of an Assessment year prior to amendment in section 147. Moreover, this judgment is not rendering any help to the assessee. Rather it is in favour of the revenue. Hence, we do not understand why the CIT (A) has referred to this judgment.
We also find that in Para 7.3 of his order for A. Y. 2007 – 08, Learned CIT (A) has reproduced the reasons recorded by the AO. As per the same, this was the objection of the AO that the assessee has paid LIC Premium of Rs. 109,987/- and self assessment tax of Rs. 145,602/- but there is no drawing in the capital account. It is also noted by the AO in the reasons that there is no drawing towards house hold expenses. Under these facts, he held that he had reasons to believe that income has escaped assessment.
Similarly, in AY 2007 – 08, as per the reasons reproduced by CIT (A) in Para 7.3 of his order for that year, the reasons recorded by the AO includes a) No personal drawings, b) No disallowance of interest paid for borrowed funds used for giving interest free loans to Sri Santosh & Shri Pappanna in addition to some other reasons. to 822 & 1107/Bang/2015 & C.O. No. 216/Bang/2015 Page 5 of 9 10. Hence, it is seen that reasons are recorded by the AO and the same were supplied to the assessee also. Now this is the basis of the order of CIT (A) that since the objections were not disposed off by the AO by a separate speaking order, the reassessment order is bad in law. For holding so, learned CIT (A) has followed a judgment of Hon’ble Delhi High Court rendered in the case of Ranbaxy Laboratory limited vs. CIT as reported in 336 ITR 136. The question of law in this case was as under:- "Whether on facts the Tribunal was right in law in holding that the AO had jurisdiction to reassess issues other than the issues in respect of which proceedings were initiated especially when the reasons for the latter ceased to survive ?"
Hence, it is seen that reliance placed by CIT (A) on this judgment is misplaced because the dispute in that case was different as can be seen from the question of law raised in that case as reproduced above.
As per above discussion, we find that the decision of the learned CIT (A) on this aspect of the validity of the reassessment order is not sustainable because it is not based on any sound and valid reasoning and all the reliance on all judgments is misplaced. Under these facts, we feel it proper to restore the matter back to CIT (A) for a fresh decision by way of a speaking and reasoned order after providing adequate opportunity of being heard to both sides.
In view of our above decision as per which the technical aspect is restored back to CIT (A), no adjudication on merit is called for at this stage because on merit, the issue should be decided after deciding the technical aspect. Hence, we direct the CIT (A) to decide the issues on merit afresh after deciding the technical aspect afresh.
In the result, all the three appeals of the revenue for A. Y. 2006 – 07 to 2008 – 09 are allowed for statistical purposes.
Now, we take up the appeal of the revenue for A. Y. 2009 – 10 in ITA No. 1107/Bang/2015. to 822 & 1107/Bang/2015 & C.O. No. 216/Bang/2015 Page 6 of 9
In this year, the assessment is completed u/s 143 (3) and as per the grounds raised
by the revenue, the main grievance is about violation of Rule 46A while making deletion of the addition made by the AO of Rs. 147,51,750/-, Rs.
51. Lacs and Rs. 24,92,748/-.
Learned DR of the revenue submitted that learned CIT (A) has admitted and considered additional evidence for deleting these additions without obtaining remand report from the AO. Learned AR of the assessee could not show that there is no violation of Rule 46A of I T Rules, 1962. Hence, we feel it proper to restore the entire matter involved in the appeal of the revenue back to CIT (A) for a fresh decision after obtaining Remand Report from the AO and after providing adequate opportunity of being heard to both sides.
In the result, the appeal of the revenue for A. Y. 2009 – 10 is also allowed for statistical purposes.
Now, we take up the C. O. of the assessee for A. Y. 2009 – 10 in C. O. No. 216/Bang/2015.
As per the grounds raised in the C. O., the grievances of the assessee are regarding upholding of the addition of Rs. 92 Lacs, Rs. 19,11,400/- and Rs. 52,446/-.
Learned AR of the assessee reiterated the same submissions which were made before CIT (A).
We have considered the rival submissions and gone through the orders of the authorities below. We find that the issue in respect of addition of Rs. 19,11,400/- is interlinked with the connected ground raised
by the revenue in this year. Out of total addition made by the AO of Rs. 73,11,400/-, learned CIT (A) deleted the addition of Rs.
51. Lacs and confirmed the addition of Rs. 19,11,400/-. For the balance amount of Rs.
3. Lacs, his decision is not clear. Since, the issue in respect of deletion of Rs. 51 lacs is restored back to CIT (A) for fresh decision while deciding the appeal of the revenue for same A. Y., we feel it proper to restore this issue also to CIT (A) for a simultaneous fresh to 822 & 1107/Bang/2015 & C.O. No. 216/Bang/2015 Page 7 of 9 decision in respect of this part addition upheld by him of Rs. 19,11,400/-. Accordingly, Ground No. 3 of the C. O. is allowed for statistical purposes.
Now, we decide the issue in respect of the addition of Rs. 92 lacs upheld by CIT (A). The relevant Para of the order of CIT (A) in this regard is Para 15.2 The same is reproduced herein below for the sake of ready reference. The same reads as under:- “15.2 With regard to payment of Rs. 82,00,000/- to Amjad Pasha by the appellant in cash on 1.4.2008, and another Rs. 10,00,000/- on 1.7.2008 in cash by E-Cosmos through self/bearer cheques, before the Assessing Officer the appellant claimed that the whole amount of Rs. 92,00,000/- (including Rs. 82,00,000/- to 8 site owners) was paid to Amjad Pasha during FY 2008-09, for the payments to be made to various claimants for the settlement of disputes, and the source of amount of Rs.82,00,000/- was the cash received from Rajeev S. Kanadam. The Assessing Officer found that in the absence of confirmation from Amjad Pasha, whose identify remained unproven, the amount was not allowable as expenditure towards the cost of land. She also observed that the claimants would have been settled through bank payments since they were not "settled in one go" and invoked Section 40A(3) to make the addition of Rs.92,00,000/-. Perusal of the settlement agreements and endorsements of payments with 8 of the site owners dated 15.2.2006 (3 site owners) and 10.8.2006 (5 site owners) filed during the appellate proceeding, clearly shows that the cash amounts at the time of agreement (para 2 on page 4 of the agreement) was paid by the second party (the appellant), and it could not be said to have been paid by Amjad Pasha. For example, in case of S. Balasubramaniam the agreement dated 10.8.2006 and endorsement dated 14.11.2006 for receipt of Rs.200,000/- in cash, clearly states that total amount of Rs. 12,00,000/- was-received as advance till that date. All the agreements are identical in terms of its content. The 8 agreements signed by the site owners and the appellant, which have been filed by the appellant to prove the title, interest and ownership of site owners as also the liability to pay to them as per agreement, have to be read in its entirety, and as a whole, and the averments and statements have to be accepted as true, unless proven wrong by evidence. There is nothing to show that these amounts in cash were paid at the time of agreement or thereafter by Amjad Pasha, whose identity and creditworthiness has not been established, as the person is without even a PAN and there is no evidence of his source of income. There is also no truth in the statement that these cash amounts were paid to the site owners in FY 2008-09, by Amjad Pasha, as such cash amounts stood paid in Feb/August, 2006 itself. In any case, the amounts having been paid to site owners in FY 2005-06 and FY 2006-07 from unknown sources, the said amount of to 822 & 1107/Bang/2015 & C.O. No. 216/Bang/2015 Page 8 of 9 Rs. 82,20,000/- was not at all payable to the site owners as on 31.3.2008, or to Mr. Amjad Pasha, and hence the question of paying the said amount in FY 2008-09 to Amjad Pasha does not arise, even if it is accepted that the said amount of cash was received by the appellant from Rajiv S Kanadam pursuant to the agreement with him dated 2.2.2008 for the purchase of entire property No.19/6. The fact of liability of Rs. 82 lakhs towards Amjad Pasha is not established by the appellant and hence the same has been rightly disallowed by the Assessing Officer as not genuine, and the same is upheld. The finding is without prejudice to the application of Section 40A(3) with regard to payment to Amjad Pasha in cash. Further, payment of Rs. 10,00,000/- in cash to Amjad Pasha on 1.7.2008 by E-Cosmos has also rightly been disallowed by the Assessing Officer in the absence of identity of the person and genuineness of transaction. The nature and purpose of payment is also not proven, and provisions of IT Act has not been followed in terms of Section 40(i)(ia) in case it was commission for brokerage service, or Section 40A(3) for having been paid in cash. To sum up, the disallowance of Rs. 92,00,000/- towards the cost of property at 19/6 is upheld.”
We find that a categorical finding is given by CIT (A) that identity of Amjad Pasha is not proved, to whom this amount is claimed to have been paid. He has also recorded a finding that as per the provisions of section 40A (3) also, this addition is justified. He has also recorded a finding that there is no proof that the amount in question was paid by Mr. Amjad Pasha to site owners. He has also recorded a finding that the fact of liability of Rs. 82 Lacs towards Mr. Amjad Pasha is not established by the assessee. Regarding payment of Rs. 10 Lacs, he has recorded a finding that the nature and purpose of this payment is not proved. These findings of CIT (A) are not controverted by the learned AR of the assessee and therefore, we find no reason to interfere in the order of CIT (A) on this issue. Accordingly, Ground No. 2 of the C. O. is rejected.
Regarding Ground No. 4 of the C. O., we find that this issue is decided by CIT (A) against the assessee as per Para 18 of his order. In this Para, a categorical finding is given by him that the assessee failed to prove that the expenditure was required for business purpose. This finding of CIT (A) also could not be controverted by the learned AR of the assessee and therefore, we find no reason to interfere in the order of CIT (A) on this issue also. Accordingly, Ground No. 4 of the C. O. is also rejected. to 822 & 1107/Bang/2015 & C.O. No. 216/Bang/2015 Page 9 of 9
In the result, the C. O. filed by the assessee is partly allowed for statistical purposes.
In the combined result, all four appeals filed by the revenue are allowed for statistical purposes and the C. O. filed by the assessee is partly allowed for statistical purposes.
Order pronounced in the open court on the date mentioned on the caption page.