ACIT, NEW DELHI vs. VRINDA FARMS PRIVATE LIMITED, NEW DELHI

This appeal is filed by the Revenue against the order of ld. Commissioner of Income Tax (Appeals)-23, New Delhi [“ld. CIT(A)”, for short] CO Nos.13 & 19/Del/2025 dated27.02.2024for Assessment Year 2016-17. The assessee has also filed cross objections.

The Revenue has raised the following grounds of appeal :-

With regard to addition of Rs.1,83,00,000/- made by the Assessing Officer under section 68 of the Income-tax Act, 1961 (for short ‘the Act’), at the time of hearing, ld. AR of the assessee brought to our notice that the assessee company is a Group company of Filatex India Limited and the issues involved in the case of Filatex India Limited in 5000, 2060, 4999, 4648, 3988, 2061, 1455, 2062/De1/2024 which was decided by the coordinate Bench vide order dated 30.06.2025 are exactly similar to the present case.

He further brought to our notice the facts narrated in the assessment order as under:-  It was alleged by AO that Filatex group companies had taken bogus Share premium and bogus unsecured loan from other Shell companies as well in past several years. List of such bogus Entities mentioned by AO on Page 3 of Assessment order.  Shri Ankit Bhageria's office and residence was also covered in the above referred search operation and statements of Sh. Ankit Bhageria was recorded u/s 132(4) and key points from the statements are reproduced by Ld. AO on page 4-6 of Assessment order. these companies are found to be typical shell entity acting as an intermediary layer and a pass-through mechanism for routing of unaccounted money into the books of account of beneficiaries.

Ld. AR further brought to our notice that the assessee made submissions before the ITAT in the case of Group Company Filatex India Limited (supra) and the Tribunal has dismissed the appeal of the Department accepting the contentions of the assessee: -  The unsecured Loans has been repaid in subsequent Assessment Years which has been accepted by the AO and to substantiate the same, Ledger Accounts of the above Parties was submitted before CIT(A).  The assessee submitted that no evidences were found which can prove that assessee has paid cash against receipt of loan from such entities.  The AO could not find any corroborative evidence to prove that the contents of the Whatsapp Messages were true and linked with the unsecured loan taken by the assessee.  Further, no cash trail was established by the AO to prove that unsecured loans were taken in exchange of Cash Payments.  The source as well as the source of source have been provided by the assessee.

Further, in the same Para point (vi) it was held by Ld. CIT(A) that WhatsApp chats relied upon by AO does gives rise to suspicion but the same nowhere proves that cash has been exchanged against any specific loan taken by appellant. Based on the above mentioned reasons, ld. CIT(A) held that the addition u/s 68 of Rs.590 Lakhs made by AO shall be deleted. He further relied on various decisions relied upon to prove that no addition can be made on unsecured loans taken when the repayment is not doubted.

In the conclusion, ld. AR submitted that out of addition of Rs.1,83,00,000/- on account of unsecured loan taken from M/s. R.N. Khemka P. Ltd. and M/s. Savita Holdings P. Ltd., the same are squarely covered by decision of coordinate Bench in the case of Filatex India CO Nos.13 & 19/Del/2025 Limited order in AY 2016-17 (supra) and as regards addition of Rs.50,00,000/- made in M/s. Fidus Finance (P) Ltd, he relied on the impugned order of the ld. CIT (A).

On the other hand, ld. DR of the Revenue did not controvert the findings that the issue is covered by the decision of coordinate Bench in the case of M/s. Filatex India Limited (supra).

Considered the rival submissions and material placed on record. We observe that out of the addition of Rs.1,83,00,000/- in dispute, loan taken from M/s. R.N. Khemka P. Ltd. and M/s. Savita Holdings P. Ltd. (group company of M/s. Filatex India Limited) is squarely covered by the decision of M/s. Filatx India Limited in & CO No.89/Del/2024 (supra). For the sake of brevity, we reproduce the order in the case of M/s. Filatx India Limited as under :- “ITA No.2060/Del/2024 & C.O.No.89/Del/2024 (AY-2016-17) 48. In the cross objections filed by the assessee, cross-objections No. 1.1 & 1.2 are taken wherein assessee has challenged the action of the AO in making additions on the issues for which no reasons were recorded and on issue for which reason was recorded, no addition is made. The cross objections taken by the assessee are as under: 1.1 On the facts and in the circumstances of the case and in law, the learned CIT(A) should have quashed the assessment order as illegal, not tenable, void and without jurisdiction. 1.2 On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in ignoring that no independent reason for reopening was recorded, as the notice was issued on the basis of report of received from TDS ward 1(3)(1), International Taxation, Delhi.

The respondent craves leave to add, alter, amend and/or withdraw any ground or grounds of cross objections either before or during the course of hearing of the same.

During the course of hearing it was requested by the ld.AR that the issues raised in cross objections No. 1.1 and 1.2 are legal and thus prayed to adjudicate the same separately, therefore, in the interest of justice and looking to the very nature of the cross objections, the same are hereby taken for consideration.

Before us, Ld.AR submits that the case of the assessee was reopened on the basis of the information received by the AO that the assessee has made payment on account of technical services to a foreign company and that these remittances are liable to withhold taxes within the definition of Fee for Technical Services under the provisions of Sec 9(1)(vi) and (vii) of the IT Act and as per Article 12(4) of the DTAA also, chargeable to tax u/s 115A(1)(b)(A) and 115A(1)(b)(B) of the Income Tax Act. The assessee was required to deduct Tax at source on the remittance amounting to Rs.87,34,375/- and thus after obtaining the approval from the competent authorities, notice u/s 148 was issued in 31.3.2021. Ld. AR submits that in response to said notice, return of income was filed on 14.07.2021. Thereafter, due enquiries were made by the AO and no addition was made on account of the reasons recorded and therefore, AO has no jurisdiction to make any other addition. For this, he placed reliance on the judgement of Hon’ble Jurisdictional High Court in the case of Ranbaxy Laboratories Ltd. vs CIT [2011] reported in 336 ITR 136 (Delhi) and in the case of CIT-II vs Jet Airways (I) Ltd. reported in [2011] 331 ITR 236 (Bom.). Ld. AR thus requested that the re-assessment order making additions of INR 100,11,32,484/- on the issues which are not the subject matter of reopening and without making additions on the issue for which reasons for reopening the CO Nos.13 & 19/Del/2025 assessment were recorded, is without jurisdiction and, therefore, the reassessment order deserves to be quashed.

On the other hand, Ld. Sr. DR for the Revenue supported the order of the lower authorities and stated that once the case is reopened, the AO has jurisdiction to consider and decide all the issues which have come to his knowledge. He thus, requested for the confirmation of the initiation of the proceedings and consequent order passed u/s 143(3)/147 of the Act.

Heard the contentions of both the parties and perused the material available on record. From the perusal of the reassessment order it is seen that the case of the assessee was reopened on the issue of the non-deduction of Tax at source on the payment made towards fees for technical services to a foreign company. The AO after reopening the case, vide notice issued on 24.3.2022 asked the assessee to file the details of transactions with foreign company which were replied by the assessee on 29.03.2022, as reproduced at re- assessment order at page 3. After considering the reply of the assessee, the AO in para 9.6 of the order observed that no adverse inference is drawn on this account. Thereafter, the AO from para 10 onwards of the reassessment order went on discussed the issue of accommodation entry and finally made the additions/ disallowance towards unsecured loans taken and interest paid thereon by holding the same as accommodation entries.

It is thus clear that the AO has recorded his satisfaction of the escapement of income of Rs. 87,34,375/- being the payment towards fee for technical services made to foreign company without making deduction of Tax at source. However, no adverse inference was taken on this issue as has been observed in para 9.6 of the order and no addition was made on this account. In the context, the Hon’ble Jurisdictional High Court in the case of Ranbaxy Laboratories Ltd. (supra) has held as under:- “18. “We are in complete agreement with the reasoning of the Division Bench of Bombay High Court in the case of V. Jaganmohan Rao (supra). We may also note that the heading of section 147 is "income escaping assessment" and that of section 148 "issue of notice where income escaped assessment". Section 148 is supplementary and complimentary to section 147. Sub-section (2) of section 148 mandates reasons for issuance of notice by the Assessing Officer and sub-section (1) thereof mandates service of notice to the assessee before the Assessing Officer proceeds to assess, reassess or recompute escaped income. Section 147 mandates recording of reasons to believe by the Assessing Officer that the income chargeable to tax has escaped assessment. All these conditions are required to be fulfilled to assess or reassess the escaped income chargeable to tax. As per Explanation (3) if during the course of these proceedings the Assessing Officer comes to conclusion that some items have escaped assessment, then notwithstanding that those items were not included in the reasons to believe as recorded for initiation of the proceedings and the notice, he would be competent to make assessment of those items. However, the CO Nos.13 & 19/Del/2025 legislature could not be presumed to have intended to give blanket powers to the Assessing Officer that on assuming jurisdiction under section 147 regarding assessment or reassessment of escaped income, he would keep on making roving inquiry and thereby including different items of income not connected or related with the reasons to believe, on the basis of which he assumed jurisdiction. For every new issue coming before Assessing Officer during the course of proceedings of assessment or reassessment of escaped income, and which he intends to take into account, he would be required to issue a fresh notice under section 148.”

The Hon’ble jurisdictional High Court in the case of CIT vs Adhunik Niryat Ispat Ltd. reported in [2011] 63 DTR 212 (Delhi) has held as under: “Reassessment – Scope - Additional reason - Notice issued by AO on the ground that the assessee had accepted accommodation entries in the garb of share capital-During the reassessment proceedings additions made in respect of the credits received from some other parties additions for accommodation entries were made were not found valid and additions were deleted by the Tribunal-Additions in respect of other items which were not part of "reasons to believe" were also not sustainable.”

Further the hon’ble jurisdictional high court in the case of ATS Infrastructure Ltd. vs ACIT reported in [2025] 166 taxmann.com 61 (Delhi) has that AO cannot be permitted to improve the reasons recorded which form basis for initiating action under section 148A. The relevant observations of the hon’ble high court as contained in para 29 to 32 of the order reads as under: “29. In our considered opinion, and bearing in mind the import of Explanation 3 as well as the language in which Section 147 of the Act stands couched, we find no justification to differ from the legal position which had been enunciated in Ranbaxy Laboratories Ltd. We also bear in consideration the said decision having been affirmed and approved subsequently in CIT (Exemption) v. Monarch Educational Society 2016 SCC OnLine Del 6636/[2017] 79 taxmann.com 43/387 ITR 416 (Delhi) and CIT v. Software Consultants 2012 SCC OnLine Del 316/[2012] 21 taxmann.com 155/211 Taxman 120/341 ITR 240 (Delhi).

We thus, come to the conclusion that the enunciation with respect to the indelible connection between Section 148A(b) and Section 148 A(d) of the Act are clearly not impacted by Explanation 3. As we read Sections 147 and 148 of the Act, we come to the firm conclusion that the subject of validity of initiation of reassessment would have to be independently evaluated and cannot be confused with the power that could ultimately be available in the hands of the AO and which could be invoked once an assessment has been validly reopened.

Explanation 3, cannot consequently be read as enabling the AO to attempt to either deviate from the reasons originally recorded for initiating action under Section 147/148 of the Act nor can those Explanations be read as empowering the AO to improve upon, supplement or supplant the reasons which formed the bedrock for initiation of action under the aforenoted provisions.

Similarly, the Hon’ble Bombay High Court in the case of CIT vs Jet Airways (I) Ltd. (supra) has held that “it is not open to AO to independently assess some income other than the income referred in section 148 for which reason was recorded”. The relevant head note of the judgement reads as under:- “Section 147 of the Income-tax Act, 1961 Income escaping assessment - Nondisclosure of primary facts Assessment years 1994-95 and 1995- 96 Whether an Explanation to a statutory provision is intended to explain its content and cannot be construed to override it or to render substance and core nugatory Held, yes Whether after insertion of Explanation 3 to section 147 by Finance (No. 2) Act, 2009, with effect from 1-4-1989, section 147 has an effect that Assessing Officer has to assess or reassess income ('such income') which escaped assessment and which was basis of formation of belief and if he does so, he can also assess or reassess any other income which has escaped assessment and which comes to his notice during course of proceedings Held, yes Whether, however, if after issuing a notice under section 148, he accepts contention of assessee and holds that income, for which he had initially formed a reason to believe that it had escaped assessment, has, as a matter of fact, not escaped assessment, it is not open to him to independently assess some other income; if he intends to do so, a fresh notice under section 148 would be necessary, legality of which would be tested in event of a challenge by assessee - Held, yes Words and phrases: The words 'and also' as occurring in section 147 of the Income tax Act, 1961.”

In view of the facts of the case as discussed above and by respectfully following the judgement of Hon’ble Delhi High Court and Hon’ble Bombay High Court, we are of the considered view that the AO in the instant case has exceeded its jurisdiction by making additions on the issue which is not forming part of the reasons recorded for reopening the assessment when no CO Nos.13 & 19/Del/2025 addition was made on the issue covered in the reasons recorded. Therefore, no additions could be made dehorse the reasons recorded before issue of notice u/s 148 of the Act. Accordingly, the reassessment order passed u/s 147 of the Act is hereby quashed. Cross objections No. 1.1 and 1.2 taken by the assessee are accordingly allowed.

As we have already quashed the reassessment order dt. 31.03.2022 passed u/s 147 r.w.s. 143(3) of the Act while allowing the cross objections No. 1.1 & 1.2 taken by the assessee, thus the issues challenged by the revenue on the merits of the additions made in such reassessment order become infructuous and thus, the appeal of the Revenue in is hereby dismissed.

In the result, appeal of the Revenue in Del/2024 is dismissed and C.O.No.89/Del/2025 of the assessee is allowed.”

Further with regard to addition of Rs.50,00,000/- made in M/s. Fidus Finance (P) Ltd., we observe that ld. AR relied on the impugned order of the ld. CIT (A) wherein the ld. CIT (A) has deleted the addition and the same is reproduced below for the sake of brevity :- “105. In view of above discussion, and considering relevant facts on record, it is observed as under: (i) The appellant has proved identity of the creditor which is not disputed by Assessing Officer in assessment order. (ii) The appellant has also proved creditworthiness of the creditor by submitting its audited annual account along with relevant bank statement of depositors. The Assessing Officer has not proved that any cash has been deposited prior to giving cheque to appellant even though appellant was not required to prove sources of source, the bank statement submitted by appellant clearly reflects such sources which is not doubted by A.O. nor any inquiry has been made by A.O. for concluding that loan received by appellant is accommodative loan from shell companies. As discussed herein above, when appellant was asked to further explain sources of source, the appellant has provided such details, availability of funds with depositors who have transferred funds to Fidus, Savita and RN Khemka who have in turn transferred funds CO Nos.13 & 19/Del/2025 to appellant and their sources are mainly from unsecured loan taken from group entities or third parties. The appellant had also submitted relevant return of income of depositors of Fidus, Savita and RN Khemka to prove that they have disclosed income arising from such transactions in return of income. The Assessing Officer has observed that relevant documents submitted by appellant prove creditworthiness of depositors (iii) The appellant has taken loan from Savita, Fidus and RN Khemka who are having sufficient funds as on 31st March, 2014 and 2015 and same is duly disclosed in audited annual accounts of such company and such details are from time to time submitted to MCA. Thus, the capacity of depositor is proved by the appellant. (iv) The A.O. has not doubted the utilisation of such loans by appellant and such loan has been repaid in subsequent Assessment Years after making payment of interest and deducting TDS on such interest payment. (v) During the course of assessment proceedings, notice u/s 133(6) was issued to Savita, Fidus and RN Khemka and in response to such notice they have filed relevant details. If the Assessing Officer had any doubt about sources of funds either in balance sheet or sources of funds in their bank statement, he could have made further inquiries either under Section 133(6) or 131 of the Act. (vi) While making the addition Assessing Officer has relied upon various WhatsApp chats but such chats nowhere prove that those cash has been exchanged against any specific loan taken by appellant. Though such evidences found during the course of search does give rise to suspicion but such suspicion alone cannot be the basis to reject all the documentary evidences filed by appellant in support of loans taken by it. (vii) Though according to Assessing Officer, Shri. Ankit Bhageria is an entry provider or he is operating shell companies, but what is required to be seen is whether in the case of Assessee the documents found during the course of search at their premises or from the premises of Shri. Ankit Bhageria or otherwise show that Assessee was beneficiary of any accommodation entry or not. In the present case, the A.O. sans any specific link about loan taken CO Nos.13 & 19/Del/2025 from the three companies with any cash trail and on the contrary the creditors in reply to notice u/s 133(6) has accepted that genuine loan was given to appellant. The A.O. has failed to prove any direct nexus linking the Assessee with accommodation entries from Sh Ankit Bhageria.

In view of detailed discussion made above it is observed that appellant has discharged its onus as required by provision 68 of the Act hence addition made u/s. 68 of the Act for Rs.1,83,00,000/- is deleted. Ground No.5 of appeal is allowed.

Respectfully following the aforesaid decision of coordinate Bench and relying on the impugned decision of ld. CIT (A), we are inclined to uphold the findings of the ld. CIT (A) and dismiss ground nos.1 to 9 raised by the Revenue.

With regard to ground no.10 regarding deletion of addition ofRs.7,74,727/- made by Assessing Officer on account of expenditure claimed for the year under consideration u/s 37 of the Act, at the time of hearing, ld. AR of the assessee submitted that this ground is in relation to the consequent interest disallowance made by AO as the unsecured Loans were held bogus by AO. Since, the Loans were held genuine by CIT(A) and TDS has been deducted on the interest expenses claimed, the disallowance of the same made by AO was deleted by CIT(A). After going through the submissions of both the parties and going through the order of ld. CIT (A), we are not inclined to disturb the findings of the ld. CIT (A) on this issue, accordingly this ground is dismissed.

Since we have already dismissed the grounds of appeal