SADHANA PHOSPHATES & CHEMICALS LTD.,NEW DELHI vs. ITOW, NEW DELHI

That the order of the Assessing officer was not1 a speaking order and therefore tantamount to nullity in the eyes of law.

Brief facts of the case are as under: Assessee filed its return of income declaring loss of Rs. 97,85,985/- and the same was processed under section 143(1) of the Act. The case was selected for scrutiny and notice under section 143(2) of the Act was issued. Thereafter, Ld. AO passed assessment order on 28.03.2003 making addition in the hands of assessee at Rs.7,07,070/-. Against assessment order passed, assessee preferred appeal before Ld. CIT(A), who vide order dated 30.04.2004 confirmed additions. Aggrieved by order of Ld. CIT(A), assessee preferred appeal before this Tribunal. This Tribunal vide order dated 21.09.2007 passed in restored the file back to Ld. AO for deciding afresh after giving assessee an opportunity. 2.1 Subsequently notice under section 143(2) was issued and served upon assessee. In response to which representative of assessee attended assessment proceedings. Assessing officer issued show cause notice under section 274 read with section 271 of the Act requesting assessee to show cause as to why penalty under section 271 (1)(b) of the Act should not be imposed for non-compliance of notice under section 143(2) dated 09.04.2008 without reasonable cause. However, Ld. AO observed that none on behalf of assessee appeared on 26.08.2008, being scheduled date of hearing. Ld. AO again passed assessment order, by making addition in the hands of assessee amounting to Rs. 70,07,070/-. He levied penalty under section 271(1)(b) of the Act for non-compliances statutory notices without any reasonable cause.

Aggrieved by addition made by Ld. AO, assessee preferred appeal before Ld. CIT(A). Ld. CIT(A) deleted addition made in regards to share application and unsecured loans. He, however, sustained addition on alleged over invoicing, to an extent of Rs.12,50,000/-, and 50% of depreciation claimed on plant and machinery. Against this, both assessee as well as revenue are in appeal before us. We shall 1st take up the appeal filed by assessee.

Ground No. 1 raised by assessee is general in nature and hence do not require any adjudication.

Ground No. 2 and 3 is on additions of sustained by Ld. CIT(A) on account of alleged over invoicing of bills. Ground No. 4 in appeal filed by revenue is on balance amount that has been disallowed in hands of assessee. As this ground in appeal filed by assessee and Ground no. 4 of revenue of relates to same issue, they are disposed off together. 6. Ld. Counsel submitted that assessee had withdrawn an amount of Rs.1,35,16,165/- from Oriental Bank of commerce, South Extension Branch, New Delhi, out of which an amount of Rs. 61,42,000/-, was sent to Udaipur, in order to avoid clearing delays and commission. He submitted that there is no unaccounted cash in Udaipur to treat cash sent to as undisclosed income. Ld. Counsel submitted that addition has been made on basis of some papers belonging to contract. He submitted that during survey, accounting persons admitted this transaction indicated over invoicing regarding erection of plant and construction of building. Ld. Counsel submitted that assessing officer did not provide opportunity of cross- examining witnesses of whom statements have been recorded. He further submitted that this Tribunal vide order dated 21.09.2007 restored the issue back to file of Ld. CIT(A) with a direction to pass fresh order after giving adequate opportunity of being heard. 7. Ld. Counsel submitted that assessee had furnished bank statements showing day twice cash withdrawn from the bank at Delhi which has been transferred to airport alongwith bank statement which shows cash withdrawn. He claimed that transfer of cash has no relevance with any bogus purchases or over invoicing. He further submitted that all payments made to various parties has been duly accounted for. Ld. Counsel submitted that copies of bank statement in support of contentions that cash was transferred from Delhi to Udaipur in order handle day to day expenses like salaries, administrative expenses, current expenses etc., have been furnished. He submitted that, as source of cash deposit in bank’s duly explained additions made on account of mere suspicion, cannot stand test of law. He further submitted that assessing officer has never rejected books of account and additions have been made on imaginary ground that bills were inflated and cash was received back and deposited in the bank. He also placed his reliance upon retracted statements of witnesses that were recorded during remand proceedings. 8. On the contrary Ld. DR submitted that entire addition made by assessing officer deserves to be sustained, as survey report prepared by investigation wing, Udaipur, shows that there are instances where papers found during course of survey revealed that against issue of checks, cash has been received back which points towards some extent of over invoicing. 9. We have perused submissions advanced by both sides in the light of records placed before us.

It is observed that witnesses examined by assessing officer during assessment proceedings retracted their statements during remand proceedings. However, from the survey report prepared by investigating wing reveals that cash has been transferred from head office to Udaipur. It is difficult to agree that it was merely for running day-to-day affairs of company and to avoid any delay in reaching money to Udaipur that the cash was withdrawn and sent. There is a categorical finding of Ld. CIT(A) which reads as under: “22. With regard to the balance, after considering all the above evidences, the survey report, the submissions of the appellant, the two remand reports of the AO and the statements of the concerned persons, I am of the considered view that in spite the fact that there is a retraction of the statements by the above mentioned persons, the same cannot be entirely accepted at their face value. Any reasonable person going through the records of the appellant's case, notwithstanding the explanation of transfer of money from Delhi to Udaipur, would reasonably come to the conclusion that over invoicing and inflation of expenses to some extent .was definitely being carried on by the appellant company. There are some specific instances cited at page 4 of the DDIT (Inv.)'s report where figures of amounts of cheques issued have been mentioned alongwith the figures of the cash received back. In one instance, cheque was issued for Rs.31,20,000/- and cash of Rs.29,80,000/- was received showing a difference of Rs.1,40,000/-. In another instance, cheques of Rs. 21,05,501/- were issued and cash of Rs. 16,80,760/- was received back showing a difference of Rs. 4,24,751/-. From the survey report it is also seen that certain other papers were also found during the course of survey which point toward inflation of expenses and purchases. Hence, no reasonable person can conclude under these circumstances that the appellant is entirely correct when it is asserted that there was no over invoicing or inflation of bills. Keeping in view the facts and circumstances of the case including the statements of the witnesses and the remand report of the AO, the addition made by the AO amounting to Rs.61,42,000/- (after reducing Rs.8 lacs deleted as above) is upheld to the extent of Rs.12,50,000/- and the balance is deleted. The appellant gets relief of Rs.48.92 lacs.”

We agree with above findings of Ld. CIT(A). Further, it is very hard to believe that assessee would incur such huge amount of admin/office expenses at Udaipur, as has been advocated by Ld. Counsel. Assessee has not established by way of any evidence to prove what was the kind/nature of expenses that it had incurred with these monies that has have been transferred from Delhi to Udaipur. In our view, requirement under section 69C of the Act has not been fulfilled by assessee at all. It is observed that Ld. CIT(A) has sustained addition to an extent of Rs.12,50,000/- regardless the report of DDIT Investigation without any basis. Assessee has also not been able to prove that it is not a case of over invoicing and inflation of expenses. Ld. CIT(A) records that cheques were issued for Rs. 31,20,000/- and cash of Rs. 29,80,000/- was received showing difference of Rs.1,40,000/- similar instances were reported by Director Investigation wing. On perusal of statements recorded by Sh. Ravi Chandran, proprietor of M/s M.R Consultants and Engineers shows that bogus expenses relating to other parties have been invoiced by assessee.

It is observed that assessing officer has initiated proceedings under section 274 read with section 271 of the Act for non-compliance of notices under section 143(2) for which penalty also has been levied under section 271(1)(b) of the Act. We do not see any reason to set aside this issue to Ld. AO again for any further verification as it would not serve any purpose. Assessee has failed to cooperate twice with assessing officer in the past.

We are convinced with findings of Ld. AO regarding expenditure that has not been explained by assessee as required under section 69C of the Act. Invoices raised by assessee for an amount of Rs.61,42,000/-, during the year under consideration, the same deserves to be added as income in the hands of assessee as unexplained. Accordingly, we allow ground No. 4, raised by Revenue and dismiss ground No. 2 & 3 raised by Assessee.

Ground No. 4 raised by assessee is in respect of disallowance to an extent of 50% of depreciation disallowed by assessing officer amounting to Rs.4,79,615/- and Ground No. 5 in appeal filed by revenue relates to the balance amount that has been allowed to assessee. As these grounds relates to common issue these are disposed of together.

Ld. Counsel submitted that no disallowance can be made in respect of depreciation claimed on plant and machinery, as these are fixed assets that has been added during year under consideration.

On the contrary Ld. DR relied upon order of Ld. CIT(A).

We have perused submissions advanced by both sides in the light of records placed before us.

It is observed that Ld. CIT(A) has sustained that 50% disallowance by observing as under: “23. The next ground relates to addition of Rs.4,79,615/- on account of depreciation. From the assessment order dt. 28-03-2003 it is seen that there is an addition of Rs.1,34,26,276/- in the fixed assets during the year and the depreciation of Rs. 16,78,286/- has been claimed on plant and machinery. The AO has made the disallowance out of depreciation keeping in view the over invoicing alleged to have been indulged in by the appellant. The AO has noted that in view of the purchases made from MR Consultants (Rs.28,30,000/-), Jain Laxmi Construction Co. (Rs.8,90,000/-) and Raju Builders (Rs. 1,17,0007-) the claim of depreciation is not fully allowable. No evidence has been discussed in the second assessment order with regard to the basis on which the claim of depreciation has been disallowed. However, keeping in view the facts and circumstances of the case and the discussion relating to M.R. Consultants in the Survey Report and the assessment order, the disallowance made by the AO is reduced to the extent of 50% on account of the fact that as held in the foregoing paras, some extent of over invoicing in plant and machinery is evident and cannot be overlooked or denied and for which a part of the addition has been sustained, as above.”

As we have already observed in the above paragraphs that assessee has been involved in over invoicing its purchase bills for plant and machinery. In our considered view Ld. AO has correctly disallowed the claim of depreciation. Assessee has also failed to establish by way of evidences regarding purchase price of these plant and machineries before authorities below. Even when matter was remanded back to Ld. AO for fresh verification, assessee has not undertaken any initiative to provide any documentation in respect of same. It is observed that assessing officer has initiated proceedings under section 274 read with section 271 of the Act for non- compliance of notices under section 143 (2), for which penalty has been levied under section 271(1)(b) of the Act. We do not see any reason to set aside this issue to Ld. AO for any further verification as assessee has failed to cooperate twice with assessing officer.

Accordingly, we uphold addition made by Ld. AO amounting to Rs.4,79615/-. In the result, ground raised by assessee stands dismissed and ground raised by revenue stands allowed. In the result appeal filed by assessee stands dismissed.

Ground No. 1 ,2 & 3 the only ground that remains to be adjudicated is upon deletion of Rs. 55,50,000 made by Ld. AO by treating it as unexplained share capital and an amount of Rs. 38,00,501/- treating it as unexplained cash credits and unsecured loans under section 68 of the Act. The revenue is also aggrieved with additional evidences being admitted in contravention to rule 46A of the Act. This Tribunal remanded the issue back to file of Ld. AO to decide in accordance with ratio laid down by Hon’ble Delhi High Court vide order dated 30.07.2007 decided in the case of CIT Vs Himalaya International Ltd.

Ld. DR submits that in accordance with directions of this Tribunal, assessing officer issued notice to assessee under section 143(2) of the Act. He submitted that representative of assessee attended assessment proceedings once, subsequently none appeared before assessing officer and accordingly, assessing officer was left with no choice but to issue show cause notice under section 274 read with section 271 of the Act as to why penalty under section 271(1)(b) of the Act should not be imposed for non-compliance without reasonable cause. Ld. DR submitted that it is very much apparent that assessee failed to cooperate with assessing officer to complete assessment as per directions of this Tribunal. He submitted that sufficient opportunities were granted to assessee, which was a futile exercise. He submitted that assessing officer was left with no choice but to complete assessment on the basis of his observations made in original assessment order. 23. Ld. DR objected to admission of additional evidence by Ld. CIT(A) on the ground that assessee has not made out sufficient reason as to why assessee could not appear before assessing officer, and under rule 46A these documents cannot be accepted. 27. On the contrary, Ld. Counsel submitted that no opportunity was granted to assessee to file relevant documents in reassessment proceedings which emanates from remand report obtained by Ld. CIT(A).

We have perused submissions advanced by both sides in the light of records placed before us.

Ld. CIT(A) had called for remand report in which assessing officer denied acceptance of these documents. Ld. CIT(A) while admitting evidences observed as under: “As stated earlier, these submissions of the appellant alongwith annexures were forwarded to the AO for his remand report. In his remand report dt. 09-08-2010, the AO has stated that these amounts of share capital are "apparently accommodation entries". It has been stated by the AO that though the assessee is claiming that these are admissible amounts on the basis the ratio of M/s Lovely Exports, Steller etc, the amounts having been received through bank, and the identities of shareholders of the companies and their PAN confirmations etc having been filed by the appellant. It is seen that the AO in his Remand Report has submitted that additional evidence filed by the appellant should not be accepted. The AO has stated that the Tribunal has set aside the case to decide the issue afresh after affording the assessee a reasonable opportunity of being heard. In this regard, the AO has denied that no opportunity was given to the appellant during the course of the reassessment proceedings. But he has also admitted that the assessment was completed in the month of September without affording another opportunity to the appellant. It has been stated that as per the ordersheet there was one attendance of the AR during the reassessment

In the facts of present case before us, it has been argued by Ld. Counsel that, monies credited into books of account of assessee, are invested by respective shareholders, and are share capital in the hands of assessee. If that is so, assessee is duty bound to establish true nature of credit, by providing evidences about identity, creditworthiness and most importantly genuineness of the transaction, which could discharge the initial onus cast upon assessee under section 68 of the Act. On perusal of order passed by Ld. CIT(A), it is observed that he has merely deleted additions without the initial onus being discharged by assessee as per section 68. Ld. CIT(A) on the basis of scanty evidences placed before him, deleted additions under section 68 .

We are of considered opinion that Ld. AO and Ld. CIT(A) have not made any enquiry towards amount credited, either as share capital or as sale of shares in the profit and loss account. Ld. Counsel and Ld. DR agreed that such enquiries can only be conducted at the level of assessing officer. Therefore, we set aside issue for examination of cash credits either as share capital and premium or as sale of shares, or unsecured loans back to file of Ld. AO. Ld. AO shall first grant opportunity to assessee to discharge its initial onus by proving identity, creditworthiness and most importantly genuineness of transaction as per section 68 of the Act. After discharge of initial onus by assessee, Ld. AO may conduct any other enquiry that he may deem fit and proper to inquire about the veracity of the evidences/information submitted by assessee in respect of credit entries. Ld. AO may take all necessary steps, in order to identify, examine the creditors and decide the issue on merits. Needless to say that, adequate opportunity may be granted to assessee to support its case. Accordingly, this ground is allowed for statistical purposes with above direction. In the result appeal filed by revenue is allowed. Order pronounced in the open court on 11th May, 2017. Sd/- Sd/- (R. K.PANDA) (BEENA A. PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER Date: 11.05.2017 @m!t