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Income Tax Appellate Tribunal, MUMBAI BENCHES “B”, MUMBAI
Before: Shri Mahavir Singh, & Shri Ashwani Taneja
आदेश / O R D E R
Per Ashwani Taneja, A.M: These appeals have been filed by the Assessee against order of Commissioner of Income Tax (Appeals), Mumbai-21 [in short ‘CIT(A)], involving common issues, therefore, these appeals are being disposed of by this common order. 2. First, we shall take up appeal for A.Y. 1977-78, in filed on the following grounds:- “
The Ld. Commissioner of Income Tax (Appeals)
23. (herein referred to as “CIT(A) has erred in law, facts and evidence brought on record and in not accepting the explanation of the appellant in determination of total income of Rs.72,79,480/- and thereby upholding the demand raised by the A.O. thereon of Rs.49,24,665/-. The Ld. CIT(A) has erred by upholding the decision of the A.O. u/s 143(3) r.w.s 254 by considering the appellant as the proprietor of the Industrial Agencies, Nagpur instead of Shri S.J.
2 N.M.R. Tara Mumbai Baid based on the statement given by Shri S.J. Baid before the IT department during the search and seizure operation conducted in the premises of the appellant. The Ld. CIT(A) has erred in not considering the Dossier Report of the Department wherein the remarks prove that Tribunal order arose out of protective assessment of Mr. S.J.Baid was passed, however recovery could not be made. The CIT(A) has erred in passing the order with the assumption that there would not be a possibility of confirming the substantive addition in the case of Shri S.J. Baid unless further investigation would have been carried out on the appellant on whom the substantive addition has been made. The CIT(A) had erred in upholding the order of the A.O. who had passed the order on assumption and surmise based on the statement recorded u/s 131 of the Income Tax Act, 1961 of Mr. S.J. Baid without relying on the submission/evidence provided by the assessee based on which order was passed by the then Commissioner of Income Tax (Appeals) XVII dated 26th March, 1993.”
During the course of hearing, none appeared on behalf of the assessee. It is noted from perusal of the order-sheet entries that hearing was adjourned at the request of the counsel of the assessee but there has been no appearance on behalf of the assessee at more than four occasions. Under these circumstances, we have no option but to decide this appeal exparte qua the assessee.
During the course of hearing, it was submitted by the Ld.DR on behalf of the revenue that this is second round of proceedings. In the first round, this matter was remitted back by the ITAT to the Assessing Officer vide order dated 5.5.2006. The Assessing Officer passed the fresh order after taking into account all the facts as per directions issued by the tribunal and addition was made. Ld. CIT(A) examined all the aspects in detail and upheld of the order Assessing Officer after recording detailed and well reasoned findings, therefore, order of Ld. CIT(A) should be upheld.
3 N.M.R. Tara Mumbai
We have gone through the order passed by the lower authorities. It is noted that tribunal had sent this matter back to the AO in the first round with following observations:- “We have heard the Ld. D.R. and have considered the facts. The Ld. D.R. and also the Ld. Counsel for the assessee have expressed their inability to produce before us a copy of the Tribunal order in the case of Shri S.J. Baid on the plea that the matter being very old, it is difficult to trace the record. We feel that there is no point in keepings these old appeals pending any more. In our view, the order of the Tribunal in the case of Shri S.J. Baid who is shown to be the owner of Industrial Agencies, Nagpur has to be the basis for deciding this issue in the present case. From the dossier in the case of Shri S.J. Baid the normal assumption is that the additions made on protective basis in the case have achieved the finality by virtue of the Tribunal’s order. However, we would not like to record any finding in this regard in the absence of the order of the Tribunal. Under these circumstances, we deem it proper to restore the matter for all the three years to the assessing officer. The assessing officer is directed to bring on record the ITAT’s order in the case of Shri S.J. Baid. If the additions made in the case of the assessee have been confirmed and finally brought to charge to tax in the case of Shri S.J. Baid by virtue of the ITAT order, there would be no justification whatsoever for making any addition of the same income in the case of assessee which would amount to a double addition and therefore, the additions made in the present case shall stand deleted as already held by the learned CIT(A). However, if in the case of Shri S.J. Baid this issue has been decided by the Tribunal in a different way, the A.O. shall reconsider the entire matter in the present case for all the three years after allowing adequate opportunity to the assessee and keeping in mind any direction contained in the order of the Tribunal in the case of Shri S.J.Baid. Accordingly, the issue is restored back to the file of the A.O. for all the three assessment years to be reconsidered in the light of the observations made by us as above”.
In the second round proceedings, the AO gave adequate opportunity of hearing to the assessee to provide all the documents and after 4 N.M.R. Tara Mumbai considering the same,the A.O. confirmed the addition by making detailed discussion in the assessment order. The submissions of the assessee were not found acceptable by the A.O. since the assessee did not submit copy of ITAT order in the case of Shri S.J. Baid. The reasoning given by the A.O. for making addition in the hands of the assessee has been summarized by him in concluding part of his assessment order, which is reproduced hereunder:- “The assessee has not submitted the copy of ITAT order in the case of Shri S.J. Baid. Shri S.J. Baid has categorically stated in his recorded statement that he is not assessed to tax. It is inconceivable that an order of ITAT would have been passed in the case of Shri S.J. Baid when he is not assessed to tax. When confronted with the recorded statement of Shri S.J. Baid the assessee has merely stated that it should not be relied upon. The assessee has not given any cogent reason for rejecting the statement of Shri S.J. Baid. In view of the above stated facts, total income of the assessee is total income as per order”. u/s 143(3) r.w.s 148 dated 24-3-1986. Rs.72,79,480 Total Income Rs.72,79,480 7. In appeal before Ld. CIT(A), all the submissions made by the assessee were considered, but these were not found acceptable. Thus, addition made by the A.O. was confirmed by Ld. CIT(A) by observing as under:- “It was submitted for the appellant that the decision of ITAT in the case arose out of protective assessment and substantive assessment made in the case of NMR Tara which is pending before the ITAT. That the A.O. was to pass order taking into consideration the Hon'ble Tribunal Order. Assessing Officer should have relied, before passing the assessment order, on the Dossier Report of the Department in which it is apparently stated that the order has been passed by the Tribunal in the case of Shri S.J. Baid. Also, it is evidently clear in the order passed u/s 143(3) r.w.s. 148 in the case of assessee dated 24/03/1986 wherein in para 5 of the order it is clear that 5 N.M.R. Tara Mumbai protective assessment proceeding was initiated against Shri S.J. Baid. The finality of which has been achieved as per the Dossier Report. As stated by A.O. in his order that assessee has not submitted copy of the ITAT order is totally incorrect since assessee could not have the possession of the ITAT order in case of Shri S.J.Baid. Lastly A.O. has stated in his order that no cogent reason was given for rejecting the statement of Shri S.J. Baid. This is also incorrect since based on the dossier report it is clear that for the above said assessment year Shri S.J. Baid was liable to tax, however demand was not paid by him. To conclude the above assessee had stated that he was not proprietor of Industrial Agency and the real proprietor was Shri S.J. Baid. The addition made by the A.O. is incorrect since the assessee was not a proprietor of M/s Industrial agency (1975), Nagpur. Also the order u/s 143(3) r.w.s 254 was passed by the A.O based on the recorded statement of Shri S.J. Baid without bringing any evidence to prove that no order of the Tribunal in the case of S.J. Baid was passed. Assessing Officer had also asked for the order of S.J. Baid from the assessee for which the assessee has clearly stated that he was not in a possession of the same. The A.O. was asked to make efforts to obtain a copy of the ITAT’s order in the case of Shri S.J. Baid, if any, from the records of the officer who submitted the dossier report. In response the A.O. submitted his report stating that the officer who submitted the dossier report could not be contacted. However extracts of the correspondence and dossier comments mentioned were furnished to indicate that there is no such case pending before the ITAT. No records in respect of Shri S.J. could be traced, and that the comments recorded by the then A.O. were vague and meaningless. Thereupon letters were issued by this office to the Registrar of ITAT at Mumbai as also at Nagpur, with a copy to the appellant, stating that: In appeal filed against the said assessment order (which is pending before the undersigned) the appellant submitted, inter alia, that the assessment order has been passed without bringing any evidence to prove that no order of the Tribunal in the case of Shri S.J. Baid was passed.
6 N.M.R. Tara Mumbai That the matter was remanded to the A.O.to make efforts to obtain a copy of ITAT order/s in the case of Shri S.J. Baid from the ITAT and also from then ITO 14(5), Mumbai who had submitted the dossier report in the said case. That the A.O. has submitted report stating that the ITAT’s order could not be obtained either from the ITAT in the absence of bench details, order no., date of order or from the ITO submitting the dossier report. It will also be appreciated that the matter being about 30 years old, in all likelihood, the records of the department would have been weeded out in accordance with the extant instructions on weeding out of old records. The ITAT was therefore requested that the records/archives of the ITAT may kindly be searched to confirm whether or not order in the case of Shri S.J. Baid, proprietor of M/s Industrial Agencies, Nagpur, has been passed by the ITAT, Mumbai in respect of A.Y.s 1975-76 ,76-77 & 77-78. A copy of the ITAT order if passed in such case in respect of each of the years may also be forwarded. Copy of the ITAT order dated 05/05/2006 in the case of Shri N.M.R. Tara is enclosed for reference. That since in terms of the action plan for CIT(A), all high demand appeals are required to be finalized by the end of March, 2012, it is requested that your reply may kindly be furnished within one month. If no report is received on or before 20th of January, 2012 it will be presumed that the records of the ITAT in the said matter are not traceable and the appeal shall be decided on the basis of materials available on record. No reply was received either form ITAT Mumbai or ITAT Nagpur till 09/03/2012 (or in fact even till date of this order). Accordingly, letter dated 09/03/2012 was issued to the appellant enclosing copies of the A.O. interim and final reports and letter of Addl. CIT Range 12(2), Mumbai. The appellant was also informed about the correspondence to ITAT Mumbai and ITAT Nagpur enclosing copies of the correspondence and informing him that no reply has been received from ITAT Mumbai or ITAT Nagpur. The appellant was given a final opportunity to furnish his comments on the A.O. report etc. fixing the date of hearing on 20/03/2012. The appellant was also informed that if no-compliance is made, the matter shall 7 N.M.R. Tara Mumbai be finalized on the basis of materials on record. None attended on that matter till the date of passing of this order. Thus this order is passed on the basis of written submissions filed by the appellant on earlier date and materials on record. The A.O. order, submissions made for the appellant and materials on record have been considered. The basis of the additions is on account of income from business carried on in the name of M/s Industrial Agencies, Nagpur. Shri S.J. Baid was considered as the nominal owner of the business and the A.O. held that the actual business was controlled by Shri N.M.R Tara, the appellant Shri S.J. Baid was only signing the papers as directed by the appellant. Even the Income Tax returns were filed by the appellant. These facts were admitted by Shri S.J. Baid in his statement given before the I.T. Department during the search and seizure operation conducted in the premised of Shri N.M.R Tara and M/s Industrial Agencies. The ITAT in its order dated 05/05/06 has inferred that from the dossier in the case of Shri S.J.Baid, the normal assumption is that the additions have been made on protective basis in the case of Shri S.J. Baid and would have achieved finality by virtue of the Tribunal’s order. Accordingly, the ITAT has directed the A.O. to bring on record the ITAT’s order in the case of Shri S.J. Baid. Neither the A.O. nor the appellant have been able to furnish copy of the Tribunal’s Officer (if passed at all) in the case of Shri S.J. Baid. On approaching the ITAT Mumbai and ITAT Nagpur, no copy of the Tribunal’s order was furnished. Thus such order, if passed at ala, has not been located. The ITAT has itself stated in its order that there is no point in keeping these old appeals pending anymore. It is clear that the department’s stand was that substantive assessment has been made in the case of Shri N.M.R. Tara, appellant and protective assessment in the case of Shri S.J. Baid. The dossier report relied upon by the appellant and as stated by the ITAT in its order in the case of Shri N.M.R. Tara, show clearly that addition in the hands of Shri S.J.Baid was on protective basis and not substantive basis. Had the appeal in the case of Shri S.J. Baid been taken up and been decided by the ITAT, the said addition would have(a) either been confirmed in the hands of Shri S.J. Baid or (b) the addition would have been deleted. Since the department had made 8 N.M.R. Tara Mumbai addition in the hands of Shri Baid on protective basis, the confirmation by ITAT would be to hold the income in the name of Shri S.J. Baid on protective basis. In either of the two alternative outcomes, there would not be a possibility of confirming the substantive addition in the case of Shri S.J. Baid, unless further investigation would have been carried out at the instance of the present appellant shri N.M.R. Tara, who was the interested party as substantive addition has been made in his hands. Had Shri N.M.R. Tara been an intervener in the appeals of Shri S.J. Baid, details of the outcome by way of appellate orders would have been available with the appellant and been filed in the further proceedings. Thus if by virtue of the tribunal orde r(if any), the protective addition in the case of Shri S.J. Baid have achieved finality, this would in fact strengthen the A.O. case that the substantive addition has correctly been made in the case of Shri N.M.R. Tara. Thus, unless the ITAT order specifically held the addition in the hands of Shri S.J. Baid as a substantive addition, the decision of ITAT would have no material effect in the present appellant’s case (in who’s hands substantive addition has been made). In these circumstances, in view of the detailed discussions in the assessment order, wherein the statement of Shri S.J. Baid has been reproduced, the fact that no order of the Tribunal in the case of Shri S.J. Baid has been brought on record, for the reasons recorded in the assessment order, the addition made in the hands of the Shri N.M.R. Tara is confirmed.”
Perusal of the order passed by the Ld. CIT(A) shows that it has been noted by him after considering all the facts of this case that assessee was real owner of the business carried on in the name of M/s Industrial Agencies, Nagpur and Shri S.J. Baid was only nominal owner of the business. It was held that actual business was controlled by the assessee and Shri S.J. Baid was only signing the papers as per directions of the assessee. Under these circumstances the substantive addition has been rightly made in the hands of the assessee. Nothing has been brought before us to negate the well reasoned factual findings of Ld. CIT(A). Under these 9 N.M.R. Tara Mumbai circumstances, we have no other option but to uphold the order of CIT(A). As a result, all the grounds are dismissed.
As a result of appeal is dismissed.
It is noted that in the appeal for A.Y. 1975-76(I.T.A No. 3200/M/13) and A.Y. 1976-77(I.T.A No. 3201/M/13) involve identical issues. Ld. CIT(A) has followed the order of A.Y. 1977-78. No distinction has been made on facts or legal position. Under these circumstances following the order of A.Y.1977-78, these appeals are also dismissed. As a result, all the three appeals filed by the assessee are dismissed. Order was pronounced in the open court at the conclusion of hearing.