TaxTMI 
TaxTMI 
2013 (11) TMI 1235
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.... Ld CIT(A) and also from the arguments advanced by Ld CIT(A), we notice that following two issues mainly arise for our consideration:- (a) Whether the money transactions carried out through the bank accounts opened in the name of various partnership firms constituted by the employees and relatives of the assessee, belong to the assessee or not? (b) If the answer to the above question is in affirmative, then whether the quantum of income determined by the assessing officer and confirmed by Ld CIT(A) is correct. However, in the written submissions, the Ld counsel for the assessee has submitted his contentions with regard to the validity of re-opening of assessments also. 3. The facts relating to the case are set out in brief. The assessee is running a lodging house in the name of "Everest Lodge" in Calicut. He filed his returns of income for the year under consideration declaring income from business. He also declared commission income received on sale of gold biscuits. The assessing officer re-opened the assessments of all the years under consideration by issuing notices u/s 148 of the Act. In response thereto, the assessee filed letters requesting the assessing officer ....
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....re-opened the assessment of that year for considering the bank transactions relating to the three firms listed in S. No. 7-9, supra. Hence, two assessment orders came to be passed for assessment year 2003-04. 5. The assessing officer made enquiries with the partners of the above said firms and found that they are the employees/relatives of the assessee herein. Further enquiries revealed that:- (a) All the partnership firms have given their address as "1/1859, 'Nishanth', Beach Road, West Hill, Kozhikode - 673 005. It was found that the said building belonged to the assessee herein and he was residing there only earlier. (b) The telephone number of all the partnership firms was declared as "381491" in the bank records. The said telephone number was found to be installed in the above said premises. (c) All the firms have given the mobile number as "9847321007" and "9846126662". It was noticed that both the numbers were taken in the name of assessee's spouse named "Mrs. Umaiba". (d) All the partnership deeds were found to have been prepared by M/s Raghunath & Associates, the advocate of the assessee herein. (e) All the partners did not have capacity to carry out such....
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....further submitted that the assessee herein used to give cheque leaves and he used withdraw money from the bank accounts. (l) Shri Nazar Ali Koya, another employee of the assessee submitted that he deposit money in the bank account in Mumbai. He further submitted that the assessee herein used to give instructions over phone as to where to go to collect money and cheques and also the details of bank account wherein they should be deposited. 6. The assessing officer noticed that the business of all the partnership firms was stated as "Sea food exports" in the partnership deed. However, they did not carry out any activity relating to sea food export. The bank accounts were having only deposits and withdrawals of money. In view of the information listed in the preceding paragraph, the assessing officer came to the conclusion that (a) All the partnership firms are bogus firms floated by the assessee herein. (b) The assessee has used these bank accounts to carry out hawala transactions, viz., distributing money and deriving commission. 7. Since the assessee did not explain the sources of the funds deposited in the bank accounts, the assessing officer determined the peak cre....
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....ort dated 14.12.2012 and the same is extracted by Ld CIT(A) in pages 7 to 9 of his order. 11. The Ld CIT(A) forwarded a copy of the remand report submitted by the assessing officer to the assessee and the Ld counsel for the assessee furnished his comments on the remand report by his letter dated 04.12.2012. The comments of the Ld Counsel are extracted by the Ld CIT(A) in pages 9 - 12 of his order. 12. Thereafter, the Ld CIT(A) again sought a report from the assessing officer on the comments submitted by Ld A.R and the Assessing officer submitted point-wise comments, vide his report dated 14.12.2012, which is extracted by Ld CIT(A) in pages 12 to 14 of his order. Upon consideration of all the reports referred above and the materials available on record, the Ld CIT(A) sustained the additions made by the assessing officer in all the years and accordingly dismissed all the appeals filed by the assessee. Aggrieved, the assessee has filed these appeals before us. 13. The Ld Counsel for the assessee has moved a petition before us, wherein it is submitted that the Ld CIT(A) has obtained comments from the assessing officer on 14.12.2012 and the same were not put to the assessee. It....
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....ements taken by the Enforcement Directorate referred above, when the assessing officer has not placed any reliance at all on them. Accordingly, we do not find any merit in the petition filed by the assessee in this regard and accordingly, we decline to give any direction to the assessing officer, as sought by the Ld counsel for the assessee. However, the assessee is free to approach the assessing officer to get copies of those documents in accordance with the law, if so desired. 16. With regard to the validity of re-opening of assessments, the Ld Counsel submitted that the reasons cited by the assessing officer do not justify issue of notices u/s 148 of the Act. In the written submissions, the assessee has extracted the reasons for re-opening, which reads as under:- Asst. year 2002-03 and 2003-04:- "Enquiries conducted by the Enforcement Directorate and the DDI (Inv), Thrissur had revealed that Rs.333.24 crores were transferred from the bank accounts operated by Shri C Surendra, V. Abdul Kareem and their associates from Mumbai to various accounts in Kerala and Coimbatore between November 1999 and Dec 2000. Further enquiries conducted revealed transfer and encashment of Rs.....
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....f Shri Abdul Majeed and his wife. Looking at the amounts involved, the financial status of the partners, the relationship of the partners of the firm with the assessee and the past history of the assess of having carried out such activities, there is reason to believe that the entire transactions in the firms were carried out by and on behalf of the assessee. The income from such huge transactions could not be so meager an amount as declared by the assessee". 17. It is contended by Ld Counsel for the assessee that the reasons stated by the assessing officer are not sufficient to justify the re-opening of impugned assessments, more particularly in view of the fact that there is no material to link the bank accounts with the assessee. The Ld Counsel has placed reliance on the decision rendered by the Hon'ble Supreme Court in the case of Income tax officer, I ward, Distt. VI, Calcutta and others Vs. Lakhmani Mewas Das (1976)(103 ITR 437). We notice that the assessing officer has formed the belief on the basis of investigations carried out by DDIT (Inv.). Further the partners of the partnership firm have confessed that they were acting on behalf of the assessee herein. It is seen th....
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.... in our view, it is his own invention only. The Ld CIT(A), in our view, is entitled in law to carry out any further examination on the issues emanating out of the assessment order, which is clear from the fact that he has got power of enhancement and further his power is co-terminus with that of the assessing officer. This statutory position is further made clear under Rule 46A of the Income tax Rules. Accordingly, in our view, the Ld CIT(A) has issued the said directions only to exercise his judicial power in a judicious manner and hence it cannot be found fault with. However, we have already noticed that the assessing officer has recorded his findings based upon his independent enquiry and the reports of the investigative agencies only vindicated the stand already taken by the assessing officer. Hence, in our view, the assessee cannot be said to be affected by the direction given by Ld CIT(A). In any case, it is seen that the Ld CIT(A) has provided necessary opportunity to the assessee to rebut the remand report given by the assessing officer. In view of the foregoing, we reject the contentions raised by the assessee that the order of Ld CIT(A) is vitiated. 19. The Ld Counsel ....
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....ether the money transactions carried out through the bank accounts opened in the name of various partnership firms constituted by the employees and relatives of the assessee, belong to the assessee or not? The ld Counsel strongly contended that there is no evidence to connect the assessee herein with the bank accounts and further the surrounding circumstances stated by the tax authorities are not sufficient enough to implicate the assessee. The relevant portions from the written submissions given by Ld A.R are extracted below, for the sake of convenience. "8.4: POINT "D": WHETHER the finding of the Assessing Authority that the Nine Partnership firms and the bank accounts in the name of such Partnership firms belonged to and were run by the Appellant is based on proper materials? 8.4.1: The finding of the Assessing Authority that the various partnership firms and bank accounts in the names of such firms belonged to the appellant mainly based on the statements of Sri Bineesh Mathew, Sri K.T. Sheriff, Sri N.P. Saidu and K.P. Abdul Gafoor and on the statement that all the Partnership firms had shown as their address, the address of the residential house belonging to the Appellant....
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.... But I do not know the nature of business done by these firms or who is in possession of the accounts. The overall supervision of these businesses were done by Sri Kasim. My main work was to withdrawn cash from Bank. The addresses of these establishments - Door No. 1/1859, Nishanth, Beach Road, West Hill, Calicut-5 - is the house of Abdul Majeed. To Question No. 7 where he was asked about the statement given by the Bank Manager that he had withdrawn from NRE Account of Sri Assrulla Khan K.P., s/o Abdul Majeed, an amount of Rs. 37.50 lakhs from fixed deposit receipt as loan and who the said Assarulla Khan is and what is the relationship with him, Bineesh Mathew has stated that he withdrew the said amount at the direction of Sri Abdul Majeed who is the father of Asarulla Khan, the account holder and that he used to withdraw money like that every now and then, at the instructions of Majeed, the Appellant. It may be noted that even during this answer, he had never indicated that the withdrawals from the various firms" accounts were made by him at the instance of the Appellant. However, quite strangely, to question No. 9 and 10, he gives answers connecting not only him but also Kasim....
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....any way involve the appellant with the firms. 8.4.6: As against the above, in cross examination, Sri Bineesh Mathew, specifically states that the businesses were being run by Sri Kasim and the latter answers were all given at the instance of the Officers who had threatened him with penalty and prosecution. 8.4.7: Sri K.T.Sheriff was first examined on 19-08-2002 by the ADI, Calicut when he also indicated that he had signed papers at the instance of Sri Kasim and that he had signed the account opening forms at his house and that he did not sign the Partnership Deeds in the presence of Notary Public and that the papers were brought by Kasim only. He also explained that from his house, calls have been made to Umaiba who is Majeed's wife. He has not indicated that Sri Majeed was connected with the various firms in any manner. In cross examination on 30-06-2008, he stated that Mr Majeed was his relative and that I had worked with him for about six months during 1998 or 1999 and that his mother used to talk to Mr Majeed's people at home. He once again confirmed having signed papers at the instance of Kasim. Thus it may be seen that Sri Sheriff has not stated that Mr Majeed was ru....
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....sistance given by the son of the Appellant and that the appellant had come to him to open the NRE Account in the name of his son Asarulla Rakha Khan and in connection with the loan account in the name of National Sea Foods. IT IS THEREFORE APPARENT THAT THERE IS NO JUSTIFICATION OR REASONABLENESS IN HOLDING THAT THE FIRMS AND THE BANK ACCOUNTS INVOLVED WERE OPERATED BY THE APPELLANT. POINT"D" MAY BE FOUND ACCORDINGLY." 22. However, the Ld D.R strongly placed reliance on the findings given by Ld CIT(A), which are extracted below:- "10. On going through the assessment orders, remand reports and submissions of the counsel for the assessee, the following facts emerge:- (i) The principal place of business of all the firms was shown as Door No. 1/1959, Beach Road, West Hill, Calicut-673005. This is a house owned by Shri K.P. Abdul Majeed and his wife and at no point of time, the assessee denied this fact. Merely because the house is attached by some government agencies does not prevent the assessee from using/occupying this house and the only restriction for transfer of the property. The premises is in the custody of the assessee and has not acquired or taken over by any gove....
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....increased bank demanded additional comfort in the form of some deposits and accordingly Shri Asarulla Raka Khan KP opened the term deposit of Rs. 50,00,000/-. When the partners wanted more than one account to spread over their huge turnover, the bank allowed the same persons to open other accounts in the name of the bogus firm only because of the assistance given by the son of the assessee. As per answer to the last question, Shri Arun Kumar stated that - "Shri KP Abdul Majeed is not maintaining any accounts with our branch. He had come to me to open the NRE account in the name of his son Shri Asarulla Raka Khan KP. He had also visited us in connection with the loan account in the name of National Sea Foods." Why did assessee enquire about loan account of a firm, i.e., National Sea Foods, about which he has claimed total ignorance? The assessee has not been able to bring on record any material to contradict the statement of Shri Arunkumar. (vi) Almost all the partners in the firms and other persons involved in these transactions are either employees or close relatives of Shri KP Abdul Majeed. They had admitted in their statements that they have signed the deeds and bank account ....
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....ts relied upon by the Enforcement Directorate have not been tested in cross examination, simple application of logic drives home the fact that two independent enquiries by separate agencies arriving at the same point is too much of a coincidence. It is not the case of the Assessing Officer that since the complaint filed by the Enforcement Directorate concludes that the assessee was the mastermind behind the activities of the firm, the Income Tax Department should necessarily conclude the same. The picture that emerges through a superimposition of the Enforcement Directorate's complaint with the conclusions arrived at by the Assessing Officer is loud and clear that the kingpin and beneficiary of all these activities are none other than Shri KP Abdul Majeed. (viii) A statement on oath was recorded from Shri KP Abdul Majeed on 15- 11-2012. It was stated by Shri Abdul Majeed in response to question No. 10 that he has never met or known a person called Shri Bineesh Mathew, who was a partner in the four firms floated by Shri Abdul Majeed. However, in the affidavit dated 21-01-2008 filed by Shri Abdul Majeed, it was stated that - "I find from the statement given by Shri Bineesh Mathew ....
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..... The contradictory positions taken by Shri KP Abdul Majeed suggest that it was for him that Shri Bineesh Mathew and other partners of the said firms were working and the firms were only a front for Shri KP Abdul Majeed's business. The assessee has not given any reply on this point and has merely pointed out procedural/technical points. (x) The fact that some employees in their later statements retracted from their original statement that they were being directed by the assessee cannot be taken cognizance of, because they did not explain that if they were not being directed by the assessee who was the person directing them in handling so much money, as they could not be doing so independently since they were men of small means. During remand proceedings, notice was sent to the partners of these firms but they chose not to appear either before the Assessing Officer or me. Instead most of the partners were represented by the same advocate during the appellate proceedings related to the firms. When the advocate was asked to produce these partners before me, the advocate said that they were untraceable and any retraction of their original statements should be ignored (This has been ....
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....enches of the Tribunal also. The Delhi bench of the ITAT, in the case of Shri Jai Karan Sharma in ITA 2940/Del/11 & Page 50 of 66 ITA 2812/Del/2011, has discussed relevance of Indian Evidence Act in the Income tax Proceedings as under in its order dated 20-07-2012:- "8.7. It is trite law that Evidence Act is not strictly applicable to the income tax proceedings as the proceedings being quasi judicial proceedings as opposed to judicial proceedings, the A.O. no doubt is not fettered by technical rules of evidence, however like any other judicial proceedings even in the income tax proceedings the issues are decided on the basis of evidences. 8.8. The law of evidence governs the means and the manner in which a party may substantiate his own case or refute that of the opponents. Evaluation of evidence is the measurement or the determination of its probatic value. In judicial proceedings the accurate measurement of the evidential value of facts is a condition and an endeavour towards the goal of the discovery of truth. 8.9. Evidences in income tax proceedings like judicial proceedings include both oral and documentary evidences. Oral evidences, inter alia, include statements whi....
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.... be ignored. Even in situations where the witness proves an unreliable witness, the portion of the statement or evidence which is verified and verifiable that part of the testimony of the witness if found credit worthy can be taken cognizance of by the Court. The Apex Court in its various judgements has held that a declaration of witness to be hostile does not ipso facto reject the evidence and it is now well settled that the portion of evidence being advantageous to both the parties may be taken advantage of, but the Court before whom such a reliance is placed shall have to be extremely cautious in such acceptance. It may be worth referring to the judgement of the Apex Court in the case of the State of UP vs Ramesh Prasad Mishra and another, AIR 1992 SC 2766 wherein it was laid down that it is equally settled law that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but it can be subjected to scrutiny and that portion of evidence which is consistent with the case of the prosecution or the defence may be accepted. 25. The same question was dealt with in detail by the Delhi bench of the ITAT in the case of Hersh....
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....ence may consist of material which would be wholly inadmissible in a court of law. (iv) In Vimal Chandra Golecha v. ITO (1982) 134 ITR 119 (Raj), secondary evidence in the form of photo copies received from the Indian Consulate was held to be material on record. (v) The Hon'ble Supreme court in CIT v. East Coast Commercial Co. Ltd. (1967) 63 ITR 449(SC), held that even information contained in some judgment or admissions before a Commission's proceedings, before they were declared ultra virus, were also to be treated as material available on record. (vi) In the case of Baghat Halwai, In re (1928) 3 ITC 48 (All) it has been held that AOs proceedings are, to some extent, in the nature of a private inquisition; they are confidential and they are not open to the public. To some extent, he is a party and a judge in his own cause. (vii) The Hon'ble Supreme court in Gadgil (SS) v Lal & Co. (1964) 53 ITR 231 (SC), held that the AO is, no doubt, an Authority appointed by the State to exercise statutory powers to ascertain the income of a subject and the tax payable by him to the State, but his position cannot be equated to that of a judge or a court deciding a "lis" between a ci....
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....payer and to assess him to tax on the basis of that estimate. Tax legislation necessitates the setting up of machinery to ascertain the taxable income, and to assess tax on the income, but that does not impress the proceeding with the character of an action between the citizen and the State. (xii) It has been held by the Hon'ble Allahabad High court in ITO v. Joti Prasad Agarwal (1962) 44 ITR 574 (All.) that proceedings for assessment are not proceedings relating to a civil rights. The liability to income-tax is not a civil right enforceable as such in courts of law. Such proceedings are of the nature of revenue proceedings. 6.3. Rules of evidence do not govern the income tax proceedings, as the proceedings under the Income-tax Act are not judicial proceedings in the sense in which the phrase `judicial proceedings" is ordinarily used. The Assessing Officer is not fettered or bound by technical rules about evidence contained in the Indian Evidence Act, and he is entitled to act on material which may not be accepted as evidence in a court of law. 6.4. The Hon'ble Supreme Court in the case of Chuhannal v. CIT (1988) 172 ITR 250 (SC), in this context held that - What is meant ....
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....easonably. ............... Having regard to the conduct of the appellant as disclosed in her sworn statement as well as other material on the record, an inference could reasonably be drawn that the winning, tickets were purchased by the appellant after the event. The majority opinion after considering surrounding circumstances and applying the test of human probabilities had rightly concluded that the appellant's claim about the amount being her winning from races, was not genuine. It could not be said that the explanation offered by the appellant in respect of the said amounts had been rejected unreasonably and that the finding that the said amounts were income of the appellant from other sources was not based on evidence." CIRCUMSTANTIAL EVIDENCE HOW TO BE USED 6.13. It would, at this stage, be relevant to consider the admissibility and use of circumstantial evidence in income tax proceedings. Circumstantial evidence is evidence of the circumstances, as opposed to direct evidence. It may consist of evidence afforded by the bearing on the fact to be proved, of other and subsidiary facts, which are relied on as inconsistent with any result other than the truth of the principa....
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....h a process of adjudication of assesses tax liability i.e. assessment under Income Tax Act rather than conducting, criminal or civil court proceedings. As held by the Hon'ble Supreme Court in the case of S.S. Gadgil (supra) no 'lis' is involved in adjudication of tax liability. The Assessee's contention that there was no new material before the AO after the CIT(A)'s setting aside order cannot be accepted. New information and material did indeed come on record. In our view, in a sensitive matter like this, even a single clue or revelation can be of great importance. To reverse the order of the AO on this technical plea will amount to taking a lopsided view of the proceedings. Besides, the JPC has underlined the importance of Reports of investigation agencies like CBI, DRI, ED whose were in the offing, as the relevant investigations were in process. In view of these observations, we do not accede to the assessee's pleas in this behalf. The Assessee's contentions and objections in this behalf that the material available on record was not admissible as evidence and that it cannot be relied on by the AO, are devoid of any merit and are rejected outright." ................................
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....of partnership deeds also, Mr. Kasim has acted upon the instructions of the assessee herein. Further the tax authorities have come to the conclusion, which was not rebutted at all by the assessee, that the partners are men of small means and further they are employees/relatives of the assessee. Hence, in our view, the tax authorities might have thought it not necessary to examine Mr. Kasim and the same, in our view, would not vitiate the conclusions reached by the tax authorities. 27. Ld Counsel also contended that some of the partners have retracted the statements given by them, during the course of cross examination. It is a fact that the cross examination conducted by the advocate of the assessee herein took place after the expiry of about two years. It is also a fact that the partners of the firm are employees/relatives of the assessee herein. After lapse of considerable time and further in view of their relationship with the assessee, it is quiet natural to expect them to retract from the statement given by them on an earlier occasion. However, in the appellate proceedings of the partnership firms, the authorized representative of the partnership firms has again reiterated ....
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....hat he does not know Sri Bineesh Mathew at all, while on another occasion, he has confessed that Sri Bineesh Mathew was working with him as his driver. These contradictions cast shadow of doubt on the veracity of the claims made/statements given by the assessee. 29. In view of the foregoing discussions, in our view, the surrounding circumstances, preponderance of probabilities, conduct of the assessee herein and evidences gathered by the department show that the partnership firms do belong to the assessee and their bank accounts also belong to the assessee. Hence, in our view, it is his responsibility to explain the transactions carried out in those bank accounts. Accordingly, we answer the first question against the assessee. 30. The next issue relates to the determination of the amount to be assessed in the hands of the assessee, i.e., whether the quantum of income determined by the assessing officer and confirmed by Ld CIT(A) is correct. In this regard, the assessee has raised following questions:- (a) Whether the assessing officer was justified in invoking different sections, viz., sec. 68, 69 and 69A for making additions. (b) Whether the computation of "peak credit....
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....me of the assessee, when they cannot be considered as revenue receipts under accounting and common parlance. The parliament, in its wisdom, has categorized those items of receipts in different sections. It may be correct to say that the bank pass book, per se, cannot be considered as "books of account" contemplated u/s 68 of the Act, but that view, by itself, would not exonerate the assessee from explaining the sources for the deposits made into the bank account. We get support for this view from the decision rendered by Delhi Special Bench of Tribunal (Larger bench consisting of 5 members) in the case of Manoj Aggarwal Vs. DCIT (113 ITD 377)(SB). The Head notes relating thereto are extracted below, for the sake of convenience. "Though s. 68 may not be strictly applicable since the assessee was not maintaining any books of account and the bank statement cannot be considered as the assessee's books of account, it is the onus of the assessee to explain the cash received by him and if there is no explanation or acceptable evidence to prove the nature and source of the receipt, the amount may be added as the assessee's income on general principles and it is not necessary to invoke s....
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....e deposits as the income of the assessee. During the course of hearing, a specific query was put to the Ld. A.R, as to whether the assessee could furnish the name and identity the persons who had transferred funds to the bank accounts of the partnership firms. It was also suggested that the bench would be in a position to direct the assessing officer to assess only commission income, if the assessee is able to furnish the name and identity of the persons who transferred the funds. However, the Ld A.R maintained his stand that the bank accounts do not belong to the assessee herein. 36. Under sec. 68/69/69A of the Act, the initial burden of proof to explain the cash credits/investments is placed upon the assessee. If an assessee fails to discharge the initial burden of proof, the legal fiction enshrined in those sections would come into play automatically. In the instant case, admittedly, the assessee did not discharge the initial burden of proof placed upon him, i.e., the assessee is not ready to disclose the name and identity of the persons who transferred funds to the bank accounts of the partnership firms. Hence, the revenue was constrained to invoke the legal fiction enshrine....
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....n the succeeding year. In the third year, the net peak credit amount of the first two years should be aggregated and given credit from the peak credit amount determined in the third year and so on. In our view, this method of computation only gives realistic picture of unaccounted funds rotated in the bank accounts. (c) In the assessment year 2004-05, the AO has assessed the entire amount of deposits as the income of the assessee, which is contradictory to the stand taken in other years. When the assessing officer has proposed to assess the peak credit amount in assessment years 2002-03, 2003-04 and 2005-06, in our view, it would not be correct on his part to assess the entire amount of deposits as income of the assessee in assessment year 2004-05 alone. In our view, the assessing officer should have assessed the peak credit amount only in the assessment year 2004-05 also. 38. The next question relates to the computation of Commission income. In our view, it may not be correct on the part of the assessee to bank upon the assessment made in the hands of Shri Surendran for the reasons that (a) in the case of Shri Surendran, the AO has only estimated the commission income, meani....