TaxTMI 
TaxTMI 
2016 (10) TMI 163
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....in various steel products under the name and style of M/s. Gupta Steel Corporation. A search action under section 132(1) of the Income Tax Act, 1961 ( in short 'the Act') was carried out by the Department in the premises of the aforesaid company and also at the residential premises of the directors, including the assessee on 10/11/2006. As a consequence, proceedings under section 153A of the Act were initiated by the Assessing Officer for seven assessment years starting from assessment year 2001-02 to 2007-08 and in response, assessee filed returns for each of the said assessment years. In so far as the assessment years 2002-03 to 2005-06 are concerned, the returns so filed have been subject to scrutiny assessments, which were completed under section 143(3) r.w.s. 153A of the Act dated 18/12/2008, and for assessment year 2006-07, assessment has been completed under section 143(3) of the Act. In the assessments so finalized, the Assessing Officer made various additions which were carried in appeal before the CIT(A), who has allowed substantial relief. Against the reliefs allowed by the CIT(A), Revenue is in appeal for the captioned assessment years of 2002-03 to 2006-07. The assesse....
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....evenue in ITA NO.9215/Mum/2010 for assessment year 2002-03 is dismissed as not-maintainable. Thus, the relevant cross-objection preferred by the assessee for assessment year 2002-03, which is merely in support of the order of CIT(A), is rendered infructuous and is accordingly dismissed. 7. Now, we may take up the appeal of the Revenue pertaining to assessment year 2003-04 in ITA No.9216/Mum/2010 and cross objection of the assessee vide C.O.No.180/Mum/2012, 7.1 In this appeal, Revenue has raised the following Grounds of appeal:- "1. On the facts and in the circumstances of the case, and in law, the CIT (A) was not Justified in deleting the addition of Rs. 69,28,100/ - made under section 68 of the Act, as unexplained cash credit, claimed to be advances received from customers, by holding that there was no material to doubt assessee's explanation, though the assessee had neither furnished confirmations with PAN details etc., nor produced the party for verification to establish their identity and creditworthiness and the genuineness of the transaction and thus the assessee had failed to discharge the onus cast upon him under the provisions of section 68 of the Act. ....
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....oss-objector carves leave to add to, amend, alter or delete all or any of the foregoing grounds of cross-objection." S. No. Particulars Amount (Rs.) 1. Addition on account of advance from customers 69,28,100 2. Ad-hoc addition of Household Expenses 6,00,000 3. Addition on account of Deemed Dividend under section. 2(22)(e). 14,26,974/- 2. The cross-objector carves leave to add to, amend, alter or delete all or any of the foregoing grounds of cross-objection." 7.4 At the time of hearing the Ld. Representative for the assessee submitted that the cross objection involves a point of law and, the Second Ground in the cross-objection has been raised as matter of abundant caution because even otherwise, the same point is subsumed in the Ground of cross objection raised originally. The point sought to be made out by the assessee is that the additions in question are not based on any incriminating material found in the course of the search; and, since the original assessment for the year under consideration does not abate in terms of the Second Proviso to section 153A(1) of the Act, therefore, following the judgment of the Hon'ble ....
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....itions made during the course of assessment proceedings, there was no incriminating material found at the time of search and that such additions have been made as a result of the verification exercise carried out in the course of assessment proceedings itself. It is also pointed out that in the context of the original return of income filed under section 139(1) of the Act on 02/12/2003, no notice under section 143(2) of the Act was issued within the prescribed period and, therefore, such assessment proceedings stood complete and that in any case on the date of search i.e. on 10/11/2006, the assessment for the impugned assessment year of 2003-04 was not pending. The said factual matrix has been canvassed by the assessee to say that assessment for the year under consideration does not abate in terms of the Second Proviso to section 153A(1) of the Act. As a consequence, it is canvassed that the impugned additions made by the Assessing Officer could not have been made in the impugned assessment proceedings as they are not based on any material seized or found during the course of search at the premises of the assessee. 7.7 On the other hand, Ld. Departmental Representative has point....
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....essments do not abate in the terms of the second proviso to sec. 153A(1) of the Act. The controversy before us is with respect to the scope and ambit of such an assessment because in the present case the assessment as on the date of search stood completed inasmuch as the date for issuance of notice under section 143(2) of the Act had lapsed in relation to the return originally filed by the assessee under section 139(1) of the Act on 02/12/2003. 7.9 In this context, the judgment of the Hon'ble Bombay High Court in the case of Continental Warehousing Corporation (NHAVA SHEVA) Ltd. (supra) is relevant, whereby the decision of the Special Bench of the Tribunal in the case of All Cargo Global Logistics Ltd. & Ors. Vs. DCIT,137 ITD 287(Mum) has been upheld. A pertinent point addressed by the Hon'ble High Court was as to whether the scope of assessment under section 153A of the Act envisages additions, which are otherwise not based on any incriminating material found during the course of search. As per Hon'ble High Court, no addition could be made in respect of the assessment that had become final in the event no incriminating material was found during the course of search. The Hon....
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....he basis of seized material." v. In absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. The word 'assess' in Section 153 A is relatable to abated proceedings (i.e. those pending on the date of search) and the word 'reassess' to completed assessment proceedings. vi. Insofar as pending assessments are concerned, the jurisdiction to make the original assessment and the assessment under Section 153A merges into one. Only one assessment shall be made separately for each AY on the basis of the findings of the search and any other material existing or brought on the record of the AO. vii. Completed assessments can be interfered with by the AO while making the assessment under Section 153 A only on the basis of some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment. 7.11 In the above background, now we may examine the manner in which the impugned additions ....
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.... of our Co-ordinate Bench in the case of Govind Agarwal in ITA No.3389&3390/Mum/2011 dated 10/01/2004, wherein under identical circumstances the addition made in assessment under section 153A of the Act without support of the incriminating material was held unsustainable even when the original assessment was completed under section 143(1) of the Act. The relevant discussion in the case of Govind Agarwal (supra) is as under:- "Decision of the Tribunal: 9.We have heard both the parties on the legal issue relating to the sustainability or validity of the additions made in the assessments made u/s 153A read with section 143(3) of the Act in respect of completed assessments. 10.The stand of the Revenue is that the first proviso to section 153A empowers the AO to issue notice u/s 153A of the Act in respect of the 6 AYs prior to the assessment year in which the search took place. The relevance of the existence of incriminating material is not provided in the said provisions. As per the revenue there should not be any difference qua the completed assessments and the abated assessments for all six AYs in so far as the powers of the AO is concerned and he is empowered to issue notic....
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....ccounted books and certainly not based on either the unaccounted books of accounts of the assessee or books not produced to the AO earlier or the incriminating material gathered by the investigation wing of the revenue. Considering the legal propositions place before us by the assessee‟s counsel, we are of the opinion, such assessments or additions are unsustainable in law. 13.For the sake completeness of the assessee, we insert here some of the extracts from relevant judgments and they are: A. [2013 36 taxmann.com 523 (Rajasthan) in the case of Jai Steel (India) vs. ACIT - From Held portion: ....The requirement of assessment or reassessment under the said section has to be read in the context of sections 132 or 132A, inasmuch as, in case nothing incriminating is found on account of such search or requisition, then the question of reassessment of the concluded assessments does not arise, which would require more reiteration and it is only in the context of the abated assessment under second proviso which is required to be assessed. ......From a plain reading of the provision along with the purpose and purport of the said provision, which is intricately....
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.... available under section 153A - Held, yes [Para 6.2] [In favour of assessee] Para 6.1 of the Order: The Special bench in the case of Alcargo Global Logistics Ltd. (supra), has held that provisions of section 153A come into operation if a search or requisition is initiated after 31.5.2003 and on satisfaction of this condition, the AO is under obligation to issue notice to the person requiring him to furnish the return of income for six years immediately preceding the year of search. The Special Bench further held that in case assessment has abated, the AO retains the original jurisdiction as well as jurisdiction under section 153A for which assessment shall be made for each assessment year separately. Thus in case where assessment has abated the AO can make additions in the assessment, even if no incriminating material has been found. But in other cases the Special Bench held that the assessment under section 153A can be made on the basis of incriminating material which in the context of relevant provisions means books of account and other documents found in the course of search but not produced in the course of original assessment and undisclosed income or property disclosed during....
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....notices issued u/s 153A of the Act and the same is pronounced in the context of the notice u/s 153C of the Act. Further, also, the Coordinate Bench decision in the case of Scope (P) Ltd (supra) has granted relief to the assessee though the notice issued u/s 153A of the Act was upheld. However, this order has not considered the then existing decision of the Coordinate Bench decision in the case of Pratibha Industries Ltd (supra) which is relevant for the proposition that the completed assessment may not be disturbed in the absence of any incriminating material specific to the assessee. In fact, all these judgments take spirit from the Special Bench decision in the case of All Cargo Global Logistics Ltd (supra), which is relevant for the proposition that the assessment u/s 153A will be made on the basis of incriminating material such as books of accounts, other documents found in the search but not produced in the course of original assessment and undisclosed income or property discovered in the course of the search. 15.We also find that the CIT(A) made a reference to the incriminating material, which yielded disclosure of some undisclosed income. But, on perusal of the documents,....
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....uring the course of search, the AO should have dropped the proceedings initiated u/s 153‟C‟ of the Act. (e) As there is no dispute that no assessment or reassessment has abated in this case for the reason, that the date of search, the date of search which in the case on hand would be 25.3.2010, by virtue of First Proviso to section 153‟C‟, i.e., the date of passing an order u/s 127 transferring the cases of the assessee to the present Assessing Officer no assessment or reassessment was pending. When no assessment has abated, the question of making any addition or making disallowance which are not based on only material found during the search is bad in law." 16. In these circumstances, we have no doubt about the absence of any seized material which are incriminating in nature to back the additions u/s 68 or 14A o the Act made in the assessment made u/s 153A of the Act for the AY under consideration. Regarding the DVO‟s report gathered during the search action, we find that the report suffers from certain deficiencies qua cost of construction of residential property and the land obtained thereto. The said report constitutes an opinion of ....
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.... the AO is only to reiterate the returned income filed in response to the notice u/s 153A of the Act. Accordingly, in substance, the common legal issue raised in the grounds for both the appeals of the assessee (ITA NO 3389&3390/M/2011) is allowed." 7.13 Quite clearly, the Tribunal in the case of Shri Govind Agarwal (supra) has upheld that making of an addition in an assessment under section 153A of the Act, without the backing of incriminating material, is unsustainable even in a case where the original assessment on the date of search stood completed under section 143(1) of the Act, thereby resulting in non-abatement of such assessment in terms of the Second Proviso to section 153A(1) of the Act. Notably, the Tribunal has referred to various decisions, including the judgment of the Hon'ble Rajasthan High Court in the case of Jai Steel (India) (supra). Therefore, the plea of the Ld. Departmental Representative is rejected in view of the aforesaid precedent. 7.14 In conclusion, by following the ratio of the judgment of the Hon'ble Bombay High Court in the case of Continental Warehousing Corporation (Nhava-Sheva) Ltd. (supra) and that of the Hon'ble Delhi High Court in the cas....
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....d brokerage for verification and also that the confirmations from the parties were not filed by the assessee and thus genuineness of the expenditure claimed as business expenditure was not proved." "3. On the facts and in the circumstances of the case, and in law, the CIT(A) was not justified in deleting the addition made by the Assessing Officer by estimating the household expenses of the assessee at Rs. 6lakhs without appreciating that the assessee had not furnished details of his household expenses and contribution, if any, by other family members for scrutiny particularly when the personal withdrawals shown by the assessee were very meager." "4. On the facts and in the circumstances of the case, and in law, the CIT(A) was not justified in deleting the addition of Rs. 2,50,89,124/- made u/s 2(22)(e) of the Act by holding that the transaction were not by way of loan or borrowing and were for supply of goods and repaid in kind without appreciating that the assessee had not adduced any evidence before the Assessing Officer in this regard and hence, the CIT(A) erred in accepting the additional evidence in contravention of the rule 46A of I T Rules, 1962" "....
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.... - Rs. 35,44,18,832/-. Notably, when assessee carried these additions before the CIT(A), the same have been deleted by the CIT(A) for the reasons assigned in the order. 9.3 In the context of the proposition laid down by the Hon'ble Bombay High Court in the case of Continental Warehousing Corporation (Nhava-Sheva), which has been adverted to at length by us in the earlier paras in the appeal for the assessment year 2003-04, in the present year too, we have perused the manner in which the additions have been made in the assessment order. Quite clearly, the entire discussion in the assessment order does not refer to any material found during the course of search, leave alone any incriminating material, in order to support the impugned additions. Therefore, it is quite clear that the additions are not based on any seized material found during the course of search at the premises of the assessee and, therefore, following our discussion in the earlier paras for assessment year 2003-04(supra), herein also such additions are held to be beyond the scope and ambit contemplated under section 153A r.w.s. 143(3) of the Act. The facts and circumstances in the instant year are identical to....
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....creditors was not correct and convincing, ignoring his own conclusion that the assessee was not reporting true and correct state of affairs particularly when assessee had no delivery details, lorry receipts and the alleged creditors had admitted that the transaction were only on paper." 4. "On the facts and in the circumstances of the case, and in law, the CIT(A) was not justified in deleting the addition of Rs. 76,50,46,685/- made u/s 68 of the Act without appreciating that the assessee did not produce books of a/cs, bills, vouchers before the A.O. for examination and particularly when the parties in their original statement recorded u/s 131 had denied the transaction of any sale of goods to the assessee and also some of them have declared commission income only on the amount of accommodation entries of purchase/sale ". 5. "On the facts and in the circumstances of the case, and in law, the CIT(A) was not justified in deleting the addition of Rs. 2,14,45,387/- made u/s 68 of the Act, as unexplained cash credit, claimed to be advance received from customers, by holding that the addition was uncalled for, without appreciating that assessee had neither furnished the ....
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....ing that provisions of Sec 68) 69 etc. do not apply without appreciating that the addition was made on the basis of papers seized from assessee's trusted employee and there was sufficient material to infer that the notings in the seized paper pertained to the assessee. The appellant prays that the order of the CIT(A) on the above ground be set aside and that of the Assessing Officer be restored." 10.1 In its cross-appeal, assessee has raised the following two Grounds of appeal:- "1. That on the facts and in the circumstances of the appellant's case and in law learned CIT (Appeal) has erred in sustaining, in part, the addition made by the assessing officer on the basis of maximum credit standing in the accounts of the Sundry Creditors of Rs. 76,50,46,685/- u/s. 68 of the Act to the extent of Rs. 11.76/- crores after applying the Gross Profit rate of 6.5% on the sales of Rs. 430.94/- crores. 2. That on the facts and in the circumstances of the appellant's case and in law learned CIT (Appeal) has erred in upholding the interest charged by the assessing officer under the provisions of section 234A, 234B & 234C of the Act. 3. That on the facts a....
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....already been examined by us in the earlier paras for assessment year 2003-04. In the light of our said discussion, in the present year also we have perused the manner in which the additions have been made in the assessment order. It is quite clear that except in relation to the addition on account of unexplained receipts of Rs. 30,00,000/-, the discussion in the assessment order does not refer to any material found during the course of search, leave alone any incriminating material, to justify the additions. Therefore, in so far as the additions on account of item Nos.(i), (ii), (iii)(iv)(vi) and (vii) mentioned in para 10.3 above are concerned, it is quite clear the same are not based on only material seized during the course of search at the premises of the assessee; therefore, following the discussion in the earlier paras for assessment year 2003-04(supra), herein also we hold that such additions are beyond the scope and ambit contemplated under section 153A r.w.s. 143(3) of the Act, and our decision in the cross-objection of the assessee for assessment year 2003-04 applies mutatis mutandis in this year too, qua the additions enumerated by us in item Nos.(i) to (iv), (vi) and (v....
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....tten or printed the same. 11.3 The CIT(A) has considered the submissions put-forth by the assessee and found that there was no material brought on record to establish that the seized papers belonged to the assessee. The CIT(A) also found that the seized documents do not indicate who is the recipient of the amounts mentioned and in what connection the money was paid. According to the CIT(A), merely because there is an account appearing in the account books of the assessee in the name of Mr. Suresh Agarwal, it would not lead to an assumption that the seized document reflect transactions between assessee and Mr.Suresh Agarwal. In fact, the CIT(A) infers that the document reflects transaction between Mr. Bharat G. Shah and Mr. Suresh Agarwal, as the document was found in the possession of Bharat G. Shah. Under these circumstances, CIT(A) has deleted the addition in the hands of the assessee. 11.4 Before us, the Ld. Departmental Representative pointed out that the employee from whom the impugned loose papers were found is a trusted employee of the assessee and the notings in the seized paper showed that it pertain to the assessee. It was, therefore, contended that the addition has....
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....the case, and in law, the CIT (A) was not justified in deleting the addition of Rs. 24,03,56,882/- made u/s 68 of the Act by holding that that the addition made on a/c of the progressive peak balance relating to unexplained sundry creditors was not sustainable ignoring his own conclusion that the assessee was not reporting true and correct state of affairs particularly when assessee had no delivery details, lorry receipts and the alleged creditors had admitted that the transaction were only on paper." 3. "On the facts and in the circumstances of the case, and in law, the CIT (A) was not justified in. deleting the addition of Rs. 24,03,56,882/-made u/s 68 of the Act without-appreciating that the assessee did not produce books of accounts, bills, vouchers before the A.O. for examination and particularly when the alleged creditors had in their original statement recorded u/s 131 had denied the transaction of any sale of goods to the assessee and also some of them have declared commission income only on the amount of accommodation entries of purchase/sale". 4. On the facts and in the circumstances of the case, and in law, the CIT (A) was not justified in deleting the additi....
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.... aforesaid grounds of appeal before or at the time of hearing and to produce such further evidence, documents and papers in support of its claim as may be necessary. 12.1 The first Ground in the appeal of the Revenue is with respect to the decision of the CIT(A) in holding that there was no justification for the Assessing Officer to make an adhoc addition of Rs. 6.00 lacs on account of unexplained household expenses. In this context, the relevant facts are that the Assessing Officer notes in the assessment order that looking at the status of the assessee a lumpsum addition of Rs. 6.00 lacs is made as unaccounted expenditure for household expenses. The CIT(A) has deleted the same on the ground that it is purely an adhoc addition. 12.2 In our view, the order of the CIT(A) deserves to be affirmed as there is no evidence regarding unaccounted household expenses found during the course of search. The CIT(A) further notes that the Assessing Officer has not considered the number of family members and the individual withdrawals made by them. None of the aforesaid findings of the CIT(A) have been negated by the Revenue before us and, therefore, we hereby uphold his decision of deletin....
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....d., the statements were not retracted and, therefore, there remained an element of doubt and the trading results of the assessee could not be taken at its face value. For this reason, the CIT(A) deleted the addition of Rs. 24,03,56,882/- made by the Assessing Officer under section 68 of the Act, but proceeded to retain an addition of Rs. 10.96 crores with respect to the trading results of the assessee. The CIT(A) arrived at such an addition by considering that the gross profit normally earned is @ 6.5% and after taking into account the gross profit of 2.32% declared by the assessee, the differential of 4.18% was applied on the total turnover of Rs. 262 crores declared by the assessee and computed the addition of Rs. 10.96 crores to the trading results. In this background, the Revenue is in appeal, challenging the action of the CIT(A) in holding that there was no justification for the addition of Rs. 24,03,56,882/- made under section 68 of the Act, whereas the assessee is in appeal challenging the order of the CIT(A) in retaining an addition of Rs. 10.96 crores to the trading results. 13.3 In the course of hearing, the Ld. Departmental Representative pointed out that the CIT(A) h....
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....hat the transactions were genuine. 2 Loha Ispat Ltd. 40,280,019 The addition was made without raising any specific query for this party. A.O. added the closing outstanding balance ignoring the business transactions during the year. No summons has been issued by the A.O. The Assessee has paid the entire outstanding amount in subsequent year. The assessee has filed confirmation of party with PAN before the CIT(A) and the same was forwarded to the A.O. 3 Bhagwati Steel Cast.Ltd. 14,961,115 The addition was made without raising any specific query for this party. No summons has been issued by the A.O. The Assessee has paid the entire outstanding amount in subsequent year. The assessee has filed confirmation of party with PAN before the CIT(A) and the same was forwarded to the A.O. The party appeared before A.O. in remand proceedings and confirmed the transaction. 4 Offshore Industrial Const. (P.)Ltd. 29,315,674 The addition was made without raising any specific query for this party. No summons has been issued by the A.O. The Assessee has paid the entire outstanding amount in subsequen....
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....ion disallowance of the purchases on account of they being bogus and the book results have been paid by a/c payee cheques in the subsequent financial year by the appellant and has been so allowed by the same AO . it is also gathered that out of the 169 parties who have allegedly issued accommodation bills or given entries, only 7 were examined and on that basis the addition has been made, This meant that the entire addition has been based on the examination of only less than 5% of the parties who initially accepted the transaction, then denied the same and later again changed the stance by accepting it. The frequent change of stance by such parties is by itself (making their entire statements doubtful and not worth taking as evidence on record. 48. During the course of hearing, the appellant without prejudice to the submission already made submitted without admitting that assuming all the purchases are bogus then the corresponding sales has also to be treated as bogus. The AR of the appellant further emphasized that once the purchased are allowed as genuine then how come the outstanding balance can be disallowed and added to the income while the appellant is following merc....
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....-facts of the case made therefore on a/ c of progressive peak balance is not sustainable. 13.6 The first point to be noticed is the finding of the CIT(A) that the aforesaid parties have not denied making of sales to the assessee, but the aforesaid parties had made purchases from certain other parties who stated that they had issued only accommodation bills in favour of the aforesaid parties. This aspect has not been disputed by the Revenue before us, and in any case, the further finding of the CIT(A) that no particular purchase effected by the assessee has been linked to such accommodation bills obtained by the suppliers has also not being disputed before us. In fact, it is for this reason that the Assessing Officer chose to treat the maximum credit balance standing in the aforesaid eight creditor's as unexplained within the meaning of section 68 of the Act. The said approach of the Assessing Officer is itself suspect because what is expected to be assessed under section 68 of the Act are the particular credits which are found to be unexplained. 13.7 It is also emerging that the action of Assessing Officer is based on the verification carried out from seven parties involve....
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....id concern retracting the earlier statement dated 6/9/2008 has been reproduced, which also refers to the sales made to the assessee for the instant period. Be that as it may, in our view, the findings of the CIT(A) do not require any interference in so far as they relate to setting-aside of the action of the Assessing Officer in treating the sundry creditors as unexplained. Therefore, on this aspect Revenue fails. 13.9 In so far as assessee's appeal is concerned, it is contended that the CIT(A) was not justified in making an addition of Rs. 10.96 crores to the trading results. It is seen that the CIT(A) opined that the trading results were not reliable for the reason that in the case of one of the parties i.e. Mrs Mehrunisa Husseini , director of M/s. Chevend Technology P. Ltd. and Cheveron Metal Product (P) Ltd., the initial statements were not retracted, which showed an element of doubt on the purchases effected by the assessee. For this reason, he had made addition to the trading results. 13.10 On this aspect, the Ld. Representative for the assessee pointed out that so far as the instant assessment year is concerned, the statement of Mrs. Mehrunisa Husseini has no relevanc....