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Income Tax Appellate Tribunal, “B” BENCH, MUMBAI
O R D E R PER RAJESH KUMAR, A. M: The appeal bearing 29.2.2012 passed by the ld.CIT(A), 39, Mumbai and the Appeal bearing is also filed by the assessee against the order dated 3.3.2014 passed by the ld.CIT(A) against the penalty imposed by the AO u/s 271(1)( c ) of the Act. Both the appeals pertain to the assessment year 2004-05. Since these appeals belong to the same assessee, they are clubbed together, heard together and are being decided by this consolidated order, for the sake of convenience.
The issue raised in the first grounds of appeal is against the confirmation of addition of Rs.23,78,000/- as made by the AO under section 68 of the Income Tax act, 1961 in the assessment framed under section 143(3) read with section 153A of the Act even though there was no incriminating material or evidence for doubting the genuineness of the gift found or seized during the course of search.
3. Facts in brief are that a search and seizure operation under section 132 of the Act was conducted on 17.1.2008 on residential and business premises of the Edit II group of cases. A notice under section 153A was issued on 23.7.2008 calling upon the assessee to file return of income, which was responded vide letter dated 29.10.2004 under the receipt no.100353 with DCIT Cir 11(1) submitting that return of income filed earlier u/s 139(1) of the Act declaring total loss of Rs.16,04,325/- should be treated as returned filed in response to notice u/s 153A of the Act. During the assessee and her husband have received gifts from Dubai. The assessee received Rs.23,78,000/- as gift in the current financial year i.e. 2003-04. The AO added the said amount to the total income of the assessee u/s 68 of the Act by rejecting the submissions and contentions of the assessee as filed during the course of assessment proceeding from time to time by holding by holding the same as non-genuine in the assessment u/s 143(3) r.w.s.153A of the Act dated 23.12.2009 assessing the total income of the assessee at Rs.8,82,000/- by making various other disallowances. Aggrieved by the order of the AO, the assessee preferred an appeal before the First Appellate Authority who dismissed the appeal of the assessee after considering the submissions of the assessee by holding that the assessee could not prove the genuineness of the gift received. The ld. CIT(A) also dismissed the additional grounds raised
by the assessee vide letter dated 17.08.2010 which read as under : “1. That on the facts and in the circumstances of the case, the Ild.AO erred in making addition of Rs.23,78,000/- on account of gift received and disallowance of Rs.1,08,238/- u/ s.14A in the assessment u/s 153A of the IT Act as no relevant or incriminating material or evidence was found or seized during the course of search reflecting undisclosed income.
2. That on the facts and in the circumstances of the case, the addition of Rs.23,78,000/- and disallowance of Rs.1,08,238/- by the AO being without any basis deserves to be deleted”
4. The FAA dismissed the legal ground raised by the assessee by holding that certain documents were found with regard to alleged gift and statement was recorded of the appellant’s husband during the course of search which proved the gift to be non-genuine. The ld. AR vehemently submitted before us that the return of income was filed by the assessee on 29.10.2004, whereas the search was conducted on 17.1.2008. The ld. AR submitted that the assessment was completed under section 143(1) of the Act and therefore in terms of section 153A of the Act the assessment as on the date of search the assessment was already complete and attained finality and has abated. The ld. AR further submitted that in order to disturb the already finalized assessment in the case of search, the addition has to be based on the incriminating documents or evidence which were found during the course of search conducted u/s 132(1) of the Act. The ld. AR submitted that since no incriminating material was found and so much so that the gift was duly shown by the assessee in the capital account attached to the annual account filed with the return of income a copy of which is filed at page 11 of the paper book and therefore the addition as made by the AO without reference to any seized material was incorrect and void ab-initio. The ld. AR further relied on the decision of the Co-ordinate bench of the Tribunal in the case of Shri Sanjay Kohli who is husband of the assessee in (AY-2003-04) dated 14.1.2015, wherein an identical issue has been decided by the Tribunal in favour of the assessee qua the gift received from foreign resident. The l.d AR also relied on the series of judgments such as CIT V/s Continental Warehousing Corporation (Nhava Sheva) Ltd. [2015] 374 ITR 645 (Bombay) and CIT v.Anil Kumar Bhatia [2013] 352 ITR 493 (Delhi) and submitted that ratio laid down by the above mentioned decisions be followed in the assessee’s case and the addition made by the AO u/s 153A r.w.section 143(3) be deleted. On the contrary, the ld.DR heavily relied on the orders of authorities below.
We have heard the rival contentions and perused the material placed before us including the impugned orders and case law relied upon by the assessee. We find from the record that the return of income was filed on 29.10.2004 whereas the search was conducted on 17.1.2008 meaning thereby the assessee for the assessment year 2004-05 had attained finality on the date of search. In terms of section 153A of the Act, the already finalised assessment can only be disturbed if the search team has found some incriminating documents or material and which was relied upon by the AO at the time of framing the assessment or the addition is made in the order passed under section 143(3) r.w.s.153A of the Act by referring to seized material and not otherwise. Further in the case of assessee’s husband I the co-ordinate Bench vide para 2 and 9 has held as under :.
“2. The facts relating to these appeals are stated in brief. The department carried out search and seizure operations u/s 132 of the Act on 17.01.2008 in the hands of Edit II Group of cases and the assessee was also subjected to search operations. Consequent thereto these the assessments under consideration were completed by the assessing officer u/s 143(3) r.w.s. 153A of the Act. The additions made by the assessing officer in these three years, having been confirmed by Ld CIT(A), the assessee has preferred these three appeals before us.
We shall first take up the appeal filed for AY 2003-04. For this year, the assessee had originally filed return of income on 25.10.2002 and the assessment was completed u/s 143(3) on 30-01-2006. Hence, as on the date of search, the AY 2003-04 falls in the category of concluded assessment and hence it would not be abated u/s 153A of the Act. In the financial year relevant to this assessment year, the assessee had received a sum of Rs.50.00 lakhs as gift from a Dubai National, who happened to be his non-relative. This gift amount had already been declared in the original return of income. In sec. 153A proceedings, the assessing officer assessed the above said gift of Rs.50.00 lakhs as income of the assessee and the same was also confirmed by Ld CIT(A).
Before us, the Ld A.R submitted that the department did not unearth any incriminating material during the course of assessment proceeding in order to show that the impugned gift amount was bogus one or the assessee had funded the same. He submitted that, in the absence of any incriminating material, the assessing officer was not entitled to re-examine the concluded matters in the case of concluded assessments. He submitted that the AO has made enquiries about this gift during the course of original assessment proceedings and has accepted the same as genuine. In this regard, he invited our attention to page no.37 of the paper book, wherein a letter dated 09-01-2006 written by the assessing officer directly to the donor is placed. He then invited our attention to page no.36 of the paper book, wherein a letter dated 23-01-2006 written by the donor directly to the assessing officer is placed. Accordingly, he submitted that the assessing officer is revising the concluded matter in the sec. 153A proceeding. He further submitted that the department has found only the gift confirmation letter from the donor and the same cannot be considered as incriminating material. Accordingly he contended that the AO was not justified in re-examining this issue in sec. 153A proceeding in respect of concluded matter that too in the absence of incriminating material. He further submitted that the AO had made identical addition for the gift received in the succeeding assessment year, i.e., AY 2004-05 and the same was deleted by the Ld CIT(A). He submitted that the department has accepted the decision of the first appellate authority and hence it did not challenge his order. He submitted that the facts and circumstances are identical in this year also.
5. On the contrary, the Ld D.R placed reliance on the order dated 19-3-2013 passed by the Co-ordinate bench of Tribunal in the case of Satish L Babladi in & 2109/Mum/2010 and also the decision of Hon’ble High Court of Rajasthan rendered in the case of Chain Sukh Rathi Vs. CIT (270 ITR 368) and submitted that the proceedings initiated u/s 153A was valid and the AO was justified in making the addition relating to the gift.
The ld A.R, however, placed reliance on the following decisions to support his legal proposition that the concluded assessments should not be disturbed in the absence of any incriminating material:- (a) CIT Vs. M/s Murli Agro Products Ltd (ITA No.36 of 2009 dated 29-10-2010) (b) Smt Lakshmi Singh Vs. DCIT (ITA No.113/PNJ/2014 dated 09-12-2014) 7. We have heard the rival contentions and perused the record. The admitted facts are that the assessee had duly disclosed the receipt of gift of Rs.50.00 lakhs in the original return of income filed for this year well before the date of search. It is also an undisputed fact that the assessing officer, during the course of original assessment proceedings, has made enquiries about the gift not only with the assessee, but also with the donor directly. Both the assessee as well as the donor has duly replied to the queries raised by the AO. Having satisfied with the genuineness of the gift, the assessing officer did not make any addition.
8. During the course of search proceeding, the department has found the gift confirmation letter and the AO has proceeded to examine the same on the basis of this document. In this regard, we agree with the contentions of the Ld A.R that this gift confirmation letter cannot be considered to be an incriminating material warranting an examination, since it only confirms the disclosure already made by the assessee and not against such disclosure. A material can be considered to be an incriminating material, only if it shows that the apparent was not real. A perusal of the present assessment order also shows that the assessing officer has only revisited the concluded grounds not emanating from the search.
In our view, the decision rendered by Hon’ble jurisdictional Bombay High Court in the case of Murali Agro Products Ltd (supra) comes to the support of the assessee, i.e., the assessing officer is not entitled to disturb the concluded assessments in the absence of any incriminating material. Accordingly, we are of the view that the Ld CIT(A) was not justified in confirming the assessment of gift amount of Rs.50.00 lakhs in this year. We notice that the assessee has raised this legal ground before the Ld CIT(A), but the first appellate authority has declined to admit the same. In our view, the action of Ld CIT(A) in rejecting the legal ground is not justified. Accordingly, we set aside the order of Ld CIT(A) and direct the assessing officer to delete the addition of Rs.50.00 lakhs relating to the gift receipt.”
Similarly, in the case of Continental Warehousing Corporation (Nhava Sheva) Ltd. (supra), the Hon’ble Jurisdictional High Court held that where the assessments have abated upon the issuing the notice u/s 153A of the Act the AO has original jurisdiction as well as jurisdiction under section 153A so far as assessments for six assessment years are concerned. The Hon’ble High Court further held that no addition can be made in respect of unabated assessments which have become final if no incriminating material is found during search. The facts of the assessee are identical to one as has decided by the co-ordinate Bench of the Tribunal in assessee’s husband case where the search was conducted simultaneously and the fact are identical. We, therefore, respectfully following the decision of the Co-ordinate Bench of the Tribunal and set aside the order of ld.CIT(A) and direct the AO to delete the adition of Rs.23,78,000/- made u/s 68 of the Act.
6. Since, we have already decided the issue in favour of the assessee on technical and legal issue and therefore other grounds taken by the assessee need not be adjudicated.
The issue raised by the assessee in this appeal is against the imposition of penalty of Rs.7,84,740/- on the addition of Rs.23,80,000/- made on account of non-genuine gift in the assessment year 2004-05 in the assessment framed under section 143(3) r.w.s.153A of the Act. Since, we have already deleted the quantum addition while deciding the appeal bearing No.3832/Mum/2012 for the assessment year 2004-05 (supra), the penalty levied u/s 271(1)( c ) will not survive, hence this appeal also allowed.
In the result, both the appeals of the assessee are allowed.