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Income Tax Appellate Tribunal, DELHI BENCH: ‘D’ NEW DELHI
Before: SHRI N.K. SAINI & SHRI SUDHANSHU SRIVASTAVA
ORDER PER SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER: This appeal has been preferred by the assessee against the order of the CIT (A)-III; New Delhi dated 26.07.2013 and pertains to assessment year 2005-06.
Brief facts of the case are that on 20th of November 2007, a survey was conducted by the investigation wing of the Department on one Mr SK Gupta, Chartered Accountant, who admitted during survey that he was controlling more than 38 companies whose primary task was to provide accommodation Assessment year 2005-06 entries. During the course of survey action certain documents/laptops were impounded in which records of providing accommodation entries to various entities including the assessee’s group were maintained and it also included the name of assessee’s counsel, one Mr. AS Aneja, who is alleged to have acted as a conduit in providing accommodation entries between Mr SK Gupta and the assessee’s group companies. Subsequently, search and seizure operation u/s 132 of the Income Tax Act, 1961 (the ‘Act’) was carried out on 5.1.2009 in M/s Taneja-Puri Group of cases. The case of the assessee was also covered u/s 132(1) of the Act. Simultaneously a survey was again conducted on 5th of January 2009 on Mr. SK Gupta, in which he is said to have confirmed that he had given accommodation entries from his 38 concerns to a number of people including assessee’s group companies. As per the statement of Mr. SK Gupta, the assessee had received Rs. 45 lakhs from 6 entities controlled by Mr. SK Gupta during the year under consideration. The notice u/s 153A was issued to the assessee on 9.11.2009 and in response to this notice, return declaring total income of Rs. 1,10,860/- was filed on 31.3.2010. Original return in this case had also been filed at a total income of Rs. 1,10,860/-. The Assessing Officer completed Assessment year 2005-06 the assessment vide order dated 31.12.2010 u/s 153A r/w section 143(3) of the Act at an income of Rs. 49,73,960/- after making the following additions/disallowances:-
i) Unexplained credit on account of share application money being accommodation entries - Rs. 45,00,000/- ii) Disallowance of 80% of security expenses – Rs. 2,40,516/- iii) Disallowance of 75% of telephone expenses - Rs. 1,22,586/-
3. Aggrieved, the assessee carried the matter in appeal before the Ld. CIT (A) challenging the assessment u/s 153A of the Act and also challenging the various additions on merits. The Ld. CIT (A) rejected the assessee’s grounds and confirmed the addition of Rs. 45,00,000/-alleged as accommodation entries u/s 68. Ld. CIT (A) only allowed the assessee’s ground challenging disallowances from security expense and telephone expenses.
Now, the assessee has approached the ITAT and has raised the following grounds of appeal:-
“1. That the learned Commissioner of Income Tax (Appeals) has grossly erred both in law and on facts in sustaining an assessment made under section 153A/143(3) of the Act at an income of Rs. 49, 73, 960/ as against returned income of Rs.1,10, 860/-.
2. That the learned Commissioner of Income Tax (Appeals) ignored the basic fact that the additions made were beyond the scope of assessment made under section 153A/ 143(3) of the I.T. Act, as no incriminating material was found during the course of search proceedings and assessment for the impugned assessment year had attained finality on the date of search and thus, the addition so made by learned assessing officer, should have been deleted as such.
That the learned Commissioner of Income Tax (Appeals) has further erred in law and on facts in sustaining addition of Rs. 45, 00, 000/- as alleged accommodation entry and brought to tax under section 68 of the I.T. Act, 1961, the breakup of which is as under:
(a) M/s Dhamaka Trading and Construction Ltd. Rs. 5, 00, 000/- (b) M/s Vasudeva Farms (P) Ltd. Rs. 10, 00, 000/- (c) M/s Belief Chits P. Ltd. Rs. 5, 00, 000/- (d) M/s SJ Securities P. Ltd. Rs. 5, 00, 000/- (e) M/s Champs Finvest P. Ltd. Rs. 15, 00, 000/- (f) M/s VA Food Ltd. Rs. 5, 00, 000/-
4.1 That further the learned Commissioner of Income Tax (Appeals) has ignored the basic fact that no amount was ever received from Sh. S.K. Gupta (the alleged accommodation entry operator), rather: Rs. 5, 00, 000/- were received from M/s Dhamaka Trading and Construction Ltd. on account of share application money, Rs. 10, 00, 000/- were received from M/s Vasudeva Farms P. Ltd. on account of share application money, Rs. 5, 00, 000/- were received from M/s Belief Chits P. Ltd. on account of share application money, Rs. 5, 00, 000/- were received from M/s SJ Securities P. Ltd. on account of share application money, Rs. 15, 00, 000/- were received from M/s Champs Finvest P. Ltd. on account of share application money, Rs. 5, 00, 000/- were received from M/s VA Foods P. Ltd. on account of share application money, and all the necessary details regarding the said transactions were filed before learned DCIT and CIT (A) as well, which were totally ignored and Assessment year 2005-06 arbitrarily brushed aside by both the lower authorities, thus, addition so made and sustained was clearly based on suspicion and surmises and is liable to be deleted as such.
That the learned Commissioner of Income Tax (Appeals) has ignored the basic fact that reliance placed on the statement made by Sh. D.N. Taneja on 07.01.2009 and surrender made of Rs. 6.23 crores is an irrelevant and extraneous consideration, as Sh. D.N. Taneja was never a director in the appellant company and has himself not accepted the surrender made by himself during the course of search operations, thus, his statement cannot be relied upon for making any addition.
6. That further the learned Commissioner of Income Tax (Appeals) has further erred in law and on facts by ignoring the fact that no opportunity was provided to the assessee to cross-examine Shri S.K. Gupta and thus, the addition so made and sustained on the basis of his alleged statement has no legs to stand and is liable to be deleted as such.
7. That the learned Commissioner of Income Tax (Appeals) has erred in law and on facts in sustaining additions in the hands of assessee company, without giving any fair and proper opportunity of being heard to the appellant company, thereby, violating the principles of natural justice.
8. That the learned Commissioner of Income Tax (Appeals) has further erred by sustaining levy of interest u/s 234B of the Act, which is not leviable on the facts of the appellant company.”
5. Ld. Authorised Representative submitted that the additions made were beyond the scope of assessment made u/s 5 Assessment year 2005-06 153A/143(3) of the Act as no incriminating material was found during the course of search proceedings and the assessment for the impugned Assessment Year had attained finality on the date of search. It was submitted by the Ld. authorised representative that the assessing officer had relied only on the statements recorded during the search proceedings and no incriminating material found during the course of the search had been linked to the addition. Ld. Authorised Representative relied on the decision of the Hon'ble Delhi High Court in the case of Kabul Chawla reported in 380 ITR 573 (Del) and submitted that since no incriminating evidence had been found, the impugned addition of Rs. 45,00,000 deserved to be deleted.
Ld. DR, on the other hand, supported the order of the Ld. CIT (A) and vehemently argued that the judgment of the Hon'ble Delhi High Court in the case of Kabul Chawla (supra) was not applicable on the facts and circumstances of the present case and he sought to place reliance on the judgment of the Hon'ble Delhi High Court in the case of Anil Kumar Bhatia reported in 352 ITR 493 (Del).
We have carefully considered the material placed before us and the issue involved. Section 153A of the Act provides that Assessment year 2005-06 where a search is initiated u/s 132 of the Act, the AO shall “assess or reassess the total income of the six assessment years immediately preceding the assessment year” relevant to the previous year in which the search is conducted or requisition is made. The first proviso states that the AO shall assess or reassess the total income in respect of each assessment year falling within such six assessment years. The second proviso states that the assessment or reassessment relating to the said six assessment years pending on the date of initiation of the search u/s 132 shall abate. It is seen that in assessee’s case search action was initiated and it is assessee’s claim that the addition of Rs. 45 lacs was not tenable as the regular return had been filed and the assessment order was passed u/s 143(3) of the Act and that no material has been found during the search to justify the addition. In our considered opinion section 153A does not authorise the making of a de novo assessment in this particular assessment year. While under the first proviso, the AO is empowered to frame assessment for six years, under the second proviso only assessments which are pending on the date of initiation of search abate. The effect is that completed assessments do not abate. The assessments can be said to be Assessment year 2005-06 pending only if the AO is statutorily required to do something further. If the section 143(2) notice has been issued, the assessment can be said to be pending. However the assessment in respect of an assessment framed u/s 143(3) is a completed assessment and nothing further is required to be done by the AO in this regard. The power given by the first proviso to assess income for six assessment years has to be confined to the undisclosed income unearthed during search and cannot include items which were disclosed in the original assessment proceedings.
It is seen on facts that the original assessment was completed u/s 143(3) on 31.12.2007 and nothing further was required to be done by the AO and as no material was found during the search, the addition has no feet to stand. It will also be worthwhile to reproduce Para 37 of the judgment of the Hon’ble High Court of Delhi in the case of CIT Central – III vs. Kabul Chawla (supra) which lays down the entire law with regard to section 153A as under :-
“37. On a conspectus of Section 153A(1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is under:
Assessment year 2005-06 I. Once a search takes place under Section 132 of the Act, notice under Section 153 A (1) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise. iii. The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. The AO has the power to assess and reassess the 'total income' 'of the aforementioned six years in separate assessment orders for each of the six years. In other words there will be only one assessment order in respect of each of the six AYs "in which both the disclosed and the undisclosed income would be brought to tax". iv. Although Section 153 A does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information available with the AO which can be related to the evidence found, it does not mean that the assessment "can be arbitrary or made without any relevance or nexus with the seized material. Obviously an assessment has to be made under this Section only on the basis of seized material. v. In absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. The word 'assess' in Section 153 A is relatable to Assessment year 2005-06 abated proceedings '(i.e. those pending on the date of search) and the word 'reassess' to completed assessment proceedings. vi. Insofar as pending assessments are concerned, the jurisdiction to make the original assessment and the assessment under Section 153A merges into one. Only one assessment shall be made separately for each AY on the basis of the finding of the search and any other material existing or brought on the record of the AO. vii. Completed assessments can be interfered with by the AO while making the assessment under section 153 A only on the basis of some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment.”
Perusal of the assessment order reveals that the AO has not referred to any incriminating material while making the additions but has rather relied on the statement of Mr SK Gupta and has doubted the genuineness of the transaction as well as the creditworthiness of the share applicants. A further perusal of the impugned order shows that the Ld. CIT (appeals) has also not made any linkage of the impugned addition to any incriminating material found during the course of search but has rather confirmed the addition relying on preponderance of probabilities Assessment year 2005-06 as espoused in the case of Sumati Dayal reported in 214 ITR 801 (SC). This action could have been upheld if it was a regular assessment under section 143 (3) of the Act but provisions of section 153A, as interpreted by the Hon’ble Delhi High Court, restrict the ambit of assessment to incriminating material un- earthed during the course of search. Thus, on the facts of the case and respectfully following the Hon’ble High Court of Delhi in CIT Central –III vs. Kabul Chawla (supra) we find that the addition of Rs. 45 lacs has been wrongly added to the income of the assessee.
In the result the appeal filed by the assessee is allowed.
Order pronounced in the open court on 5th April, 2017.