LEELAVATI VIJAYKUMAR KOTECHA,JALGAON vs. DEPUTY COMMISSIONER OF INCOME-TAX,

आदेश / ORDER

PER VIKAS AWASTHY, JM

This bunch of four appeals by the assessee are directed against the order of Commissioner of Income Tax (Appeals)-12, Pune dated 21.03.2016 common for the assessment years 2007-08, 2008-09, 2010-11, 2012-13.

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through RPAD. As is evident from acknowledgement card on record, the notice

was duly served on the assessee. On 28.03.2018, a request letter was received

from assessee seeking adjournment on account of pre-occupation of the Counsel.

On the request of assessee, the case was adjourned to 03.04.2018. The next date

of hearing was pronounced in open Court. On 03.04.2018, neither the assessee

nor any Authorized Representative/Counsel of assessee appeared in the Court.

No letter seeking adjournment has either been filed. It appears that assessee is

not keen to pursue her appeals. In such circumstances, we proceed to decide

these appeals with the assistance of ld. DR and material available on record.

Since, the issues involved in all the four appeals are similar and are arising

from same set of facts, these appeals are taken up together for adjudication and

are disposed of vide this common order.

are : A search and seizure action was carried on Kotecha Group of Jalgaon on

09.08.2011. As a part of search action, the residential premise of assessee was

also searched. Notice u/s.153A of the Income Tax Act, 1961 (hereinafter referred

to as ‘the Act’) was issued to the assessee on 18.05.2012 which was duly served

on 25.05.2012. The assessee did not file any return of income in response to the

said notice. After more than a year, the assessee vide letter dated 03.06.2013

submitted that the return of income filed u/s.139 of the Act be treated as return

in response to the notice u/s.153A of the Act. The assessee at belated stage of

assessment i.e. on 15.01.2014 filed objections before the Assessing Officer

against change of jurisdiction from Jalgaon to Nashik vide order dated

02.12.2011 passed u/s. 127 of the Act. The Assessing Officer rejected the

objection raised by assessee qua change of jurisdiction and finalized the

3 ITA Nos. 1294 to 1297/PUN/2016 A.Ys. 2007-08, 2008-09, 2010-11, 2012-13

assessment vide separate orders of even date i.e. 11.03.2014 for all assessments

under appeal.

orders before the Commissioner of Income Tax (Appeals). Apart from challenging

the additions on merit, the assessee also assailed change of jurisdiction u/s. 127

of the Act. The Commissioner of Income Tax (Appeals) vide combined order for

assessment years 2007-08, 2008-09, 2010-11, 2012-13 rejected assessee’s

challenge to change of jurisdiction u/s. 127 of the Act. However, on merits, the

Commissioner of Income Tax (Appeals) granted substantial relief to the assessee

and confirmed minor additions in the assessment years 2007-08, 2008-09, 2010-

11, 2012-13. Against the additions confirmed, the assessee is in appeal before the

Tribunal.

4.1 Similar grounds have been raised by the assessee in appeals for

assessment years 2007-08, 2008-09, 2010-11 and 2012-13 challenging the

validity of assessment u/s.153A r.w.s 144 of the Act and confirming of additions

by Commissioner of Income Tax (Appeals) in the absence of any incriminating

material. Thus, the common legal ground raised in all the four of appeals is

validity of assessment proceedings u/s. 153A r.w.s. 144 in the absence of any

incriminating material. The additions confirmed by the Commissioner of Income

Tax (Appeals) against which the assessee is in appeal before the Tribunal in

impugned assessment years are as under.

Assessment year 2007-08 Sr. Nature of Amount Explanation by No. additions ( in Rs.) assessee. 1. Unexplained cash 1,10,000/- Machines hire credit u/s.68. charges. 2. Unexplained cash 90,000/- Transfer of funds credit from Shri Anil Kotecha (son)

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the impugned assessment orders confirming the additions. The ld. DR prayed for

dismissing appeals of the assessee.

orders of Authorities below. For the sake of convenience, we will decide the

appeals of assessee in seriatim of assessment years.

ITA No.1294/PUN/2016 A.Y. 2007-08

assailing the order of Commissioner of Income Tax (Appeals) are as under:

“1) In facts and circumstance of the case and in law, the learned Assessing Officer erred in making routine additions 1 disallowances in assessment u/s

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153A r.w.s. 144 in the absence of any incriminating material and without appreciating the fact that original assessment made u/s.143(1)(a) which is completed on the date of initiation of search get abated.

2) In facts and circumstance of the case and in law, the learned Assessing Officer erred in passing order u/s. 153A r.w.s 144 even though no order u/s 127 was passed.

3) In the facts and circumstances of the case and in law the Assessing Officer erred in adding Rs.1,10,000/- even though the same was explained to be generated out machine hire out charges received and even though the Appellant is not required to maintain books of accounts and therefore entries in passbook cannot be added u/s 68.

4) In the facts and circumstances of the case and in law the Assessing Officer erred in adding Rs.90,000/- even though the same was explained to be transfer of funds from the son of the Appellant Shri Anil Kotecha and even though the same was backed by bank statements of the son.

5) In the facts and circumstances of the case and in law the Assessing Officer erred in adding Rs.1,14,072/- even though the same was explained to be received from maturity of Postal Recurring Deposit and even though the Appellant is not required to maintain books of accounts and therefore cannot be added as cash credit u/s. 68.

6) In the facts and circumstances of the case and in law, the Commissioner of Income Tax(A) erred in confirming above addition by overlooking explanations submitted to him and.

7) The Assessing Officer wrongly charged interest u/s 234A, B, C and D and initiated penalty u/s.271(1)(b).

assessment u/s.153A r.w.s. 144 of the Act on the ground that in the absence of

incriminating material, no addition can be made when there is no pending

assessment. A perusal of documents on record reveals that the assessee had filed

return of income for the assessment year 2007-08 u/s. 139 of the Act on

03.12.2007. Assessment was made in the case of assessee u/s. 143(1)(a) of the

Act. No notice u/s. 143(2) of the Act was issued to the assessee. Therefore, on

the date of search i.e. 09.08.2011, there was no pending assessment. A perusal of

assessment order and order of Commissioner of Income Tax (Appeals) show that

the additions which are subject matter of appeal before Tribunal are not arising

out of any incriminating material found and seized during search.

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during search and no assessments are pending at the time of initiation of

proceedings u/s. 153A, assessments made u/s. 153A is without jurisdiction. The

Hon'ble Bombay High Court in the case of CIT vs. Continental Warehousing

Corporation (Nava Sheva) Ltd. 374 ITR 645 (Bom) has held that if there was no

incriminating material found during search, no addition can be made where there

was no pending assessments. Similar view has been taken by the Hon'ble

Jurisdictional High Court in the case of CIT Vs. Gurinder Singh Bawa 386 ITR

483 (Bom).

In the instant case, we find that since the assessment for assessment year

2007-08 had attained finality and no incriminating material was found during

search, assessment u/s.153A r.w.s. 144 is without jurisdiction. Accordingly, the

impugned order is set aside and ground No. 1 raised in appeal by assessee is

allowed.

the other grounds raised in appeal have become infractuous and are dismissed as

such.

allowed on the legal issue alone.

ITA No.1295/PUN/2016 A.Y. 2008-09

2008-09:

“1) In facts and circumstance of the case and in law, the learned Assessing Officer erred in making routine additions 1 disallowances in assessment u/s 153A r.w.s. 144 in the absence of any incriminating material and without

7 ITA Nos. 1294 to 1297/PUN/2016 A.Ys. 2007-08, 2008-09, 2010-11, 2012-13

appreciating the fact that original assessment made u/s.143(1)(a) which is completed on the date of initiation of search get abated. 2) In facts and circumstance of the case and in law, the learned Assessing Officer erred in passing order u/s. 153A r.w.s 144 even though no order u/s 127 was passed. 3) In the facts and circumstances of the case and in law the Assessing Officer erred in adding Rs.44,220/- and Rs.1,00,000/- u/s.68 by way of undisclosed cash credit in the bank account even though the Appellant is not liable to maintain books of accounts and therefore, section 68 does not apply and even though the source of Rs.44,220/- was attributable to cash withdrawn from Jalgaon Janta Sahakari Bank Ltd. from time to time and thereafter the said cash was deposited in the same Bank Account and Rs.1,00,000/- was received by cheque from Sunil R Pawar and rejected by the Assessing Officer even during the remand proceedings. 4) In the facts and circumstances of the case and in law, the Commissioner of Income Tax(A) erred in confirming above addition by overlooking explanations submitted to him and. 5) The Assessing Officer wrongly charged interest u/s 234A, B, C and D and initiated penalty u/s.271(1)(b).

u/s. 153A r.w.s 144 on the similar lines as is in assessment year 2007-08. The

assessee has filed return of income u/s. 139 on 26.11.2008. The assessment was

completed u/s.143(1)(a). Thus, on the date of search no assessment was pending.

Nothing has been brought on record to show that the assessment was pending or

addition was made on the basis of incriminating material found during search.

Since the facts in assessment year 2007-08 & assessment year 2008-09 are

similar, the findings given by us in assessment year 2007-08 mutatis-mutandis

would apply in assessment year 2008-09 as well. For the reasons given while

deciding the appeal of assessee in assessment year 2007-08, the ground No.1

raised in appeal for assessment year 2008-09 is allowed.

raised in appeal have become infractuous and are dismissed as such.

allowed.

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ITA No.1296/PUN/2016 A.Y. 2010-11

2010-11:

“1. In the facts and circumstances of the case and in law, the learned Assessing Officer erred in passing the assessment order without having jurisdiction because, no opportunity of being heard was granted to the Appellant u/s. 127 and also disregarding the objections raised u/s. 292BB in this regard.

jurisdiction u/s. 127 of the Act. The Commissioner of Income Tax (Appeals)

dismissed the objections raised by assessee against change of jurisdiction by

observing as under:

“3.3 At the fag end of the assessment proceedings, Appellant objected to the order u/s 127 vide letter dated 15.1.2014 filed by speed post and received in

9 ITA Nos. 1294 to 1297/PUN/2016 A.Ys. 2007-08, 2008-09, 2010-11, 2012-13

the office of AO on 20.1.2014. In response to this, AO vide a letter dated 21.1.2014 informed that communication regarding objection to order u/s. 127 passed by the superior authority must be addressed to the office of CIT- II, Nashik. Thereafter, Appellant chose not to file any objection before the CIT- II, Nashik and continued to participate in the assessment proceedings. Appellant was in knowledge of order u/s.127 since December 2011 and kept mum till 15.1.2014. Thereafter, rather than approaching the office of the CIT- II, Nashik, objected was raised before the AO who was not competent authority to decide the issue. 3.4 In this manner, Appellant neither filed any objection to the order passed by the CIT u/s 127 before the office of CIT-II, Nashik and nor it was challenged by way of writ petition. Appellant continued his participation in the assessment proceedings. Moreover, order passed u/s. 127 of the Act is not appealable before the CIT(A). Hence, appeal on this ground is not maintainable and therefore treated as dismissed.”

We do not find any infirmity in the order of Commissioner of Income Tax

(Appeals) in rejecting assessee’s challenge to change of jurisdiction u/s. 127 of

the Act. Even otherwise, the order passed u/s. 127 is not appealable.

Accordingly, ground No. 1 and 2 raised in appeal for assessment year

2010-11 is dismissed being devoid any merit.

passed u/s. 153A r.w.s. 144 being without any jurisdiction, as assessment was

made without there being any incriminating material. A perusal of the records

reveal that the assessee had filed return of income for assessment year 2010-11

on 16.11.2010. The assessment was processed u/s. 143 (1)(a) of the Act before

the date of search i.e. 09.08.2011. Admittedly, on the date of search no

assessment proceedings were pending. However, we observe that there was still

time for issuance of notice u/s.143(2) of the Act. As per second proviso to section

153A, the assessment or reassessment, if any, relating to any assessment year

falling within the period of six assessment years referred to under section 153A is

pending on the date of initiation of the search under section 132, shall abate.

Thus, on the date of search, there was still some time with the department for

issuance of notice u/s. 143(2) of the Act. Therefore, it cannot be said that in the

10 ITA Nos. 1294 to 1297/PUN/2016 A.Ys. 2007-08, 2008-09, 2010-11, 2012-13

assessment year under consideration, no assessment was pending or it is a case

of non abated assessment. Hence, the plea of assessee that in the absence of

incriminating material, assessment made u/s. 153A r.w.s. 144 is without any

jurisdiction sans merit. Accordingly, ground No. 3 raised in appeal by assessee

is dismissed.

merits.

The plea of the assessee before Authorities below is that the assessee has

received amount as advance from Shri Deepesh Kotecha for selling share of Tapi

Pre-stressed Ltd. The findings of Commissioner of Income Tax (Appeals) on this

issue are as under:

“The appellant submitted that amount of Rs 47,12,511 was received as advance from Mr.Deepesh for selling shares of Tapi Pre-stress Ltd. In support appellant filed confirmation of Deepesh Motilal Kotecha stating that he had given advance of Rs 47,12,511 vide cheque dated 2.4.2009 against the purchase of 69,500 shares held by appellant. Appellant had failed to furnish the confirmation during the course of assessment proceedings as well as at the time of filing application for admission of additional evidences. At the fag end photocopy of confirmation was filed. It was also ascertained that no share transfer had taken place till the date of filing the confirmation although advance was received around 7 years back. Neither money was refunded nor shares were transferred. Moreover, confirmation filed does not include details like PAN or the other details like Bank Statement to show the creditworthiness of Mr. Deepesh Kotecha. In the circumstances, Xerox copy of confirmation is not found credible. For the appellant’s failure to furnish satisfactory evidences regarding the transaction claimed by the appellant the cash credit of Rs. 47,12,511 remains unexplained and addition made by AO to that extent is upheld.”

There is no material on record to contradict the findings of Commissioner

of Income Tax (Appeals). Accordingly, ground No. 4 raised in appeal by assessee

is dismissed being devoid of any merit.

no adjudication.

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234B, 234C and 234D and initiation of penalty proceedings u/s. 271(1)(b) of the

Act.

Charging of interest u/s. 234A, 234B, 234C and 234D is consequential and

mandatory; hence, the objection raised by assessee is dismissed. In so far as

assailing of initiation of penalty proceedings u/s. 271(1)(b) is concerned, the issue

is premature at this stage, therefore, the same is dismissed.

dismissed.

ITA No.1297/PUN/2016 A.Y. 2012-13

2012-13:

“1. In the facts and circumstances of the case and in law, the learned Assessing Officer erred in passing the assessment order without having jurisdiction because, no opportunity of being heard was granted to the Appellant u/s. 127 and also disregarding the objections raised u/s. 292BB in this regard. 2. In facts and circumstance of the case and in law, the learned assessing officer erred in passing order u/s.153A r.w.s.144 even though no order u/s 127 was passed. Without prejudice to the above and alternatively under protest: 3. On facts and circumstance of the case and in law, the learned Assessing Officer erred in making routine additions / disallowances in assessment u/s 153A r.w.s. 144 in the absence of any incriminating material and without appreciating the fact that original assessment made u/s 143(1)(a) which is completed on the date of initiation of search get abated.

12 ITA Nos. 1294 to 1297/PUN/2016 A.Ys. 2007-08, 2008-09, 2010-11, 2012-13

2012-13, are identical to ground No. 1 and 2 raised in assessment year 2010-11.

The findings given by us in assessment year 2010-11 would mutatis-mutandis

apply to appeal for assessment year 2012-13 as well. For the detailed reasons

given in assessment year 2010-11, the ground No. 1 and 2 raised in appeal for

assessment year 2012-13 are dismissed.

Authorities below in making addition/disallowance u/s.153A r.w.s. 144 of the Act

in the absence of any incriminating material. As pointed earlier, search was

carried on 09.08.2011 i.e. in the period relevant to assessment year under

appeal. The assessee filed return of income u/s. 139 of the Act on 03.06.2013 i.e.

after the date of search. The entire proceedings were open before the Assessing

Officer. Therefore, the plea of assessee that in the absence of any incriminating

material, no addition/disallowance could have been made is without any merit.

Accordingly, the contentions of assessee are rejected. In the result, ground No. 3

raised in appeal by assessee is dismissed.

seized during assessment proceedings from locker No.98 of United Western Bank

Ltd. Navi Peth, Jalgaon. The plea of the assessee before Authorities below is that

the cash in the locker is from accumulated savings on which tax has been duly

paid. The Commissioner of Income Tax (Appeals) confirmed the addition by

observing as under :

“59.3Brief facts are that during the course of search of locker No.98 with United Western Bank Ltd. at Navi Peth, Jalgaon, cash of Rs.1,65,900 was

13 ITA Nos. 1294 to 1297/PUN/2016 A.Ys. 2007-08, 2008-09, 2010-11, 2012-13

found in the locker. Appellant contended that amount was her savings out of the tax paid income. Appellant failed to furnish any evidence to justify the cash balance being recorded in any of the books of accounts. Therefore, amount of Rs.1,65,900 was added u/s 69A of the Act. During the course of appellate proceedings the appellant reiterated her submissions. Appellant does not maintain any cash book and there is no corroborative evidence to explain the source of cash found in the locker. It has been noted that appellant was investing in FDRs and keeping deposits in the group concerns. Only possible source of cash could be from hiring of machines. For want of cash book, it is not possible to ascertain as to what was cash left with the appellant after meeting out business and personal expenditure. Therefore no interference with the finding of AO is called for. Addition made by the AO of Rs 1,65,900 is upheld and ground raised by the appellant is dismissed.”

We do not find any infirmity in the order of Commissioner of Income Tax

(Appeals) in confirming the addition. There is no material on record contrary to

the findings of Commissioner of Income Tax (Appeals). Accordingly, the findings

of Commissioner of Income Tax (Appeals) are confirmed and ground No. 4 raised

in appeal by assessee is dismissed.

hence, requires no adjudication.

234B, 234C and 234D and initiation of penalty proceedings u/s. 271(1)(b) & (c)

and 271 AAA of the Act.

Charging of interest u/s. 234A, 234B, 234C and 234D is consequential and

mandatory; hence, the objection raised by assessee is dismissed. In so far as

challenge to initiation of penalty proceedings u/s. 271(1)(b) & (c) and 271AAA is

concerned, the same is premature, therefore, the same is dismissed.

dismissed.

14 ITA Nos. 1294 to 1297/PUN/2016 A.Ys. 2007-08, 2008-09, 2010-11, 2012-13

Appeal of Assessee Assessment Result year ITA No.1294/PUN/2016 2007-08 Allowed ITA No.1295/PUN/2016 2008-09 Allowed ITA No.1296/PUN/2016 2010-11 Dismissed ITA No.1297/PUN/2016 2012-13 Dismissed

Order pronounced on Thursday, the 26th day of April, 2018.

Sd/- Sd/- (डी. क�णाकरा राव/D. KARUNAKARA RAO) (�वकास अव�थी /VIKAS AWASTHY) लेखा सद�य/ACCOUNTANT MEMBER �या�यक सद�य/JUDICIAL MEMBER

पुणे / Pune; �दनांक / Dated : 26th April, 2018 SB आदेश क� ��त�ल�प अ�े�षत / Copy of the Order forwarded to : अपीलाथ� / The Appellant. 1. ��यथ� / The Respondent. 2. 3. The CIT(Appeals)-12, Pune. 4. The Pr. CIT (Central), Nashik. 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, “बी” ब�च, पुणे / DR, ITAT, “B” Bench, Pune. गाड� फ़ाइल / Guard File. 6.

// True Copy // आदेशानुसार / BY ORDER,

�नजी स�चव / Private Secretary आयकर अपील�य अ�धकरण, पुणे / ITAT, Pune.