SRI. RAMESH SETH,MUMBAI vs. ACIT CIR. - 12(2), MUMBAI

ORDER

PER N.K. PRADHAN, AM

Ramesh Seth 3 1820/Mum/2007 3. The 2nd ground is against the order of the Ld. CIT(A) confirming the order of the AO in making an addition of Rs.6,06,388/- u/s 68 of the Act. 3.1 The AO observed that during the search proceedings, SB Account No. 6241 in Abhyudaya Co-op. Bank Ltd. standing in the name of the assessee was detected. The assessee failed to establish before the AO that the bank transactions were disclosed in the return of income filed by him. The AO noted that despite repeated reminders, the assessee did not file the bank statements or the explanation of the credit entries more than Rs.10,000/- in case of cash and more than Rs.25,000/- in case of cheque deposits. Therefore, the AO made an addition of the peak credit of Rs.6,06,388/- as undisclosed income u/s 68 of the Act. 3.2 In appeal, the Ld. CIT(A) agreed with the reasons given by the AO and dismissed the appeal filed by the assessee. 3.3 Before us, the Ld. counsel of the assessee submits that this account was always disclosed in the Income Tax and Wealth Tax Return of the assessee and is thus outside the purview of block assessment proceedings. The assessee had furnished confirmation that on 19.01.2004, out of Rs.6,00,000/- an amount of Rs.3,00,000/- was received from M/s Magikraft which was cleared and confirmation that Rs.3,00,000/- was received from Gemini Oils Pvt. Ltd. on 18.01.2004, by way of four cheques of Rs.75,000/- each, which were dishonoured on 19.01.2004, thus even the peak credit calculation is erroneous.

Ramesh Seth 4 1820/Mum/2007 3.4 On the other hand, the Ld. DR supports the order passed by the Ld. CIT(A). 4. The 3rd ground of appeal is against the order of the Ld. CIT(A) confirming the order of the AO holding that the amount of Rs.7,20,000/- received in cheques by the assessee towards his share as co-parcener of B.D. Seth & Sons (HUF) was his undisclosed income. 4.1 During the course of assessment proceedings, the AO noticed from page number 46 to 48 of annexure-13 seized that the assessee had received a sum of Rs.7,20,000/- as his share on sale of 19 Kilas and 8 Marla’s agricultural land. The AO asked the assessee vide order sheet entry dated 06.09.2001 to submit the details of agreement/settlement regarding family properties. The assessee failed to file the same before the AO. The AO also noted that in the returns filed, the assessee had not mentioned the above receipts. Therefore, he made an addition of Rs.7,20,000/-. 4.2 In appeal, the Ld. CIT(A) agreed with the reasons given by the AO and dismissed the appeal filed by the assessee. 4.3 Before us, the Ld. counsel of the assessee submits that they had submitted before the AO papers showing that the land belongs to M/s B.D. Seth & Sons (HUF), which is the appellant’s father’s HUF and that it was in any case, non-taxable being receipts from sale of agricultural land. It is stated that the appellant had submitted the Wealth Tax Returns and Government appointed valuer’s report showing that the land belongs to M/s B.D. Seth & Sons (HUF). The Ld. counsel further Ramesh Seth 5 ITA No. 36, 1820/Mum/2007 submits that the appellant had furnished the recent income tax returns of M/s B.D. Seth & Sons (HUF), in order to show that the said entity/HUF is still in existence and not partitioned. 4.4 On the other hand, the Ld. DR supports the order passed by the Ld. CIT(A).

5. The 4th ground of appeal is against the order of the Ld. CIT(A) confirming the addition of Rs.20,40,000/- made by the AO as undisclosed investment u/s 69 of the Act. 5.1 During the course of assessment proceedings, the AO observed from page 128 of the diary seized and marked as A-8 that the assessee had purchased 25,000 shares of RTT. The assessee himself has written as under: “Since January I had been dealing with Pawan Dharmidharka, is my market operations. He did buy at market rates Lately he jacked up his rate to 20/-. So, since last week I shifted to Anil Mehra. In 8 days I purchased approximately 25,000 shares of RTT/around Rs.17-18/-. Total purchase by now is approximately 1,50,000 shares in my account.” However, the AO noted from the details filed by the assessee that he had shown to have held 30,000 shares of RTT on 31.03.1992. The assessee could not file any further details. Therefore, the AO treated the purchase of remaining shares of 1,20,000 (1,50,000 - 30,000) as unaccounted and made an addition of Rs.20,40,000/- (Rs.1,20,000 x Rs.17) as undisclosed income u/s 69 of the Act.

Ramesh Seth 6 1820/Mum/2007 5.2 In appeal, the Ld. CIT(A) agreed with the reasons given by the AO and dismissed the appeal filed by the assessee. 5.3 Before us, the Ld. counsel of the assessee submits that the appellant was never confronted by the AO with this diary during the assessment proceedings or in the 142(1) notice issued. Also it is stated that the appellant had made a written request to the AO on 03.10.2001 to furnish a copy of page number 128, but the same was not provided. The said diary number A-8, as per panchnama issued at the time of search and seizure action refers to the diary number A-8 being that of the financial year 1994 i.e. for the period January 1994 to December 1994. It is stated that the appellant had given details of the shares purchased by his group company amounting to 3.5 lacs shares of M/s Radan Tapes and Tubes Ltd., which were purchased by his group company M/s Kalyani Leasing Ltd. in the year 1994. The appellant had also furnished the ledger account of M/s Kalyani Leasing Ltd., showing the purchase of shares of M/s Radan Multimedia from January 1994 to December 1994 as well as the balance sheet of M/s Kalyani Leasing Ltd. showing the shares of M/s Radan Multimedia Ltd. owned by it. The Ld. counsel further states that the appellant had furnished the annual returns of M/s Radan Tapes and Tubes Ltd. to show that it had invested only in 30,000 shares. The appellant had also furnished his Wealth Tax Return showing that he only owned 30,000 shares in M/s Multimedia Ltd. 5.4 On the other hand, the Ld. DR supports the order passed by the Ld. CIT(A).

Ramesh Seth 7 1820/Mum/2007 6. The 5th and 6th ground of appeal are against the order of the Ld. CIT(A) confirming the addition of Rs.25,725/- and Rs.54,678/- made by the AO as undisclosed income. 6.1 During the course of assessment proceedings, the AO noted that the assessee had filed his return of income for the assessment year (AY) 1997-98 declaring total income at Rs.25,725/- and for AY 1998-99 Rs.54,678/- on 01.02.2000. Both these returns were filed after the date of search as well as after the due date of filing returns. Accordingly, the AO treated the income declared in these returns as undisclosed income as per section 158 BB(1)(c) of the Act. 6.2 In appeal, the Ld. CIT(A) agreed with the reasons given by the AO and dismissed the appeal filed by the assessee. 6.3 Before us, the Ld. counsel of the assessee submits that for AY 1997-98, the net income of the appellant was Rs.29,503/- which was below the taxable limit in that year and hence the amount was not taxable even if the return was filed late. Also it is stated by him that for AY 1998-99 his net income was Rs.54,678/- and after the rebate u/s 88, it was below the taxable limit and thus not taxable even if the return was filed late. 6.4 On the other hand, the Ld. DR supports the order passed by the Ld. CIT(A).

7. The 7th ground of appeal is against the order of the Ld. CIT(A) confirming the order of the AO making an addition of Rs.72,000/- (sale Ramesh Seth 8 ITA No. 36, 1820/Mum/2007 proceeds of 11 carat diamonds) during AY 1997-98 and Rs.1,80,000/- being sale proceeds of 20 carat diamonds during AY 1998-99. 7.1 During the course of assessment proceedings, the AO observed that for the AY 1998-99, the assessee had shown sale of diamonds at Rs.1,80,000/- and offered capital gains of Rs.40,980/- on this account. The AO remarked that the assessee had not given any evidence regarding parties to whom sold, copy of sale bills etc. Therefore, the AO made an addition of Rs.2,57,000/- (Rs.1,80,000/- plus Rs.77,000/-) as undisclosed income. 7.2 In appeal, the Ld. CIT(A) agreed with the reasons given by the AO and dismissed the appeal filed by the assessee. 7.3 Before us, the Ld. counsel of the assessee submits that in the computation of income annexed to the income tax returns for the AY 1997-98 and AY 1998-99, the appellant had annexed working of the capital gains and capital loss for the respective years which have been accounted for. Also it is stated that in the Wealth Tax Return for AY 1992-93, the appellant had declared jewellery of Rs.22,00,442/- as per valuation report dated 31.03.1990. Further it is stated that this information about sale of diamonds was not detected during the search action but picked up from the assessee’s return of income for AY 1997- 98 to 1998-99. Also it is stated that this question was never raised while issuing notice u/s 142(1) dated 11.09.2001. 7.4 On the other hand, the Ld. DR supports the order passed the Ld. CIT(A).

Ramesh Seth 9 1820/Mum/2007 8. The 8th ground of appeal is against the order of the Ld. CIT(A) confirming the order of the AO in charging surcharge @ 10% on 60% of tax computed in impugned block assessment, as it is contrary to the provisions of section 113 of the Act. 8.1 Before us, the Ld. counsel of the assessee submits that the AO has wrongly levied surcharge @ 10% while framing the assessment order dated 28.09.2001, since the levy of surcharge was only introduced prospectively from June 2002 onwards. 8.2 We have heard the rival submissions and perused the relevant materials on record. As inserted by the Finance Act, 2002 the levy of surcharge u/s 113 of the Act is effective from 1.6.2002. Thus it is not applicable to the impugned assessment year. Accordingly, the 8th ground of appeal is allowed.

9. The 9th ground of appeal is against the order of the Ld. CIT(A) confirming the charging of interest u/s 158BFA(1) by the AO amounting to Rs.12,62,235/- for not filing the return in terms of Chapter XIVB. 9.1 The Ld. counsel of the assessee submits that as the appellant was not required in law to file the return of income, the AO should not have charged interest of Rs.12,62,235/- u/s 158BFA. 9.2 We direct the AO to verify the contentions of the assessee that he was not required in law to file the return of income.

Ramesh Seth 10 1820/Mum/2007 10. The assessee has filed an additional ground of appeal which reads as under:

1. That the Ld. CIT(A) Appeal erred in not directing the Assistant Commissioner of Income Tax to provide the Appellant with page No. 128 of the Diary seized from the Appellant (& which was marked a A-8 attached) & which leads to the addition of imaginary purchase of shares of Radan Multimedia Ltd., (previously known as Radan Tapes & Tubes Ltd.), by the Department.

2. Consequently (due to lack of proper explanation, for wasnts of the above documents by the appellant); both of them has treated the amount of Rs.20,40,000/- as undisclosed income of the appellant in the impugned Block Assessment without having even an iota of evidence in the possession of the department proving any investment in 1,20,000 shares of Radan Multimedia Ltd., (previously RTT). 10.1 We find that the facts ralating to the above additional grounds are a part of record before the AO. Accordingly, we hold that the assessee is entitled to raise the above additional grounds.

11. We have heard the rival submissions and perused the relevant materials on record. The reasons for our decisions are given below. Before us, the Ld. counsel of the assessee submits that at the end of 2006, when this appeal was heard, the original appellant late Ramesh Seth was very ill with severe heart problem and within six months i.e. on 02.07.2007 he expired. Thus late Ramesh Seth could not attend the remand proceedings before the AO. After the death of late Ramesh Seth, his wife late Asha Seth was trying to follow up the present appeal but even she sadly developed brain cancer and passed away on 29.12.2013, Ramesh Seth 11 1820/Mum/2007 whereupon the son of the appellant i.e. Mr. Dinesh Kumar Seth substituted himself in the present appeal. We find that the Ld. CIT(A) fixed the date of hearing for the impugned assessment years on 22.12.2006. He passed the order on 27.12.2006. As per the death certificate filed before the Tribunal, the original appellant late Ramesh Seth expired on 02.07.2007. There is merit in the contentions of the Ld. counsel that the late Ramesh Seth because of severe heart problem before his death could not attend the remand proceedings before the AO. We also find that the AO has not examined whatever evidence/explanation filed by the assessee before him. Also it is noticed that the Ld. CIT(A), without giving reasons, has agreed with the additions made by the AO. In view of the above factual scenario, we set aside the order of the Ld. CIT(A) and restore the matter to the file of the AO to pass a de novo order on issues emerging out of the 2nd, 3rd, 4th, 5th, 6th, 7th, 9th and the additional ground after giving reasonable opportunity of being heard to the assessee. We direct the assessee to file the relevant documents/evidence before the AO.