TaxTMI 
TaxTMI 
2018 (4) TMI 788
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....;) was conducted in the case of the assessee on 28.09.2010 in pursuance of warrant of authorization dt.27.9.2010. Notices under Section 153A of the Act dt.23.3.2011 were issued to the assessee for Assessment Years 2008-09 to 2011-12 and in response thereto, the assessee filed the returns of income for these years on 2.4.2012. The assessments were concluded under Section 143(3) r.w.s. 153A of the Act vide order dt.14.3.2013. The details of income returned, additions made and income assessed for Assessment Years 2008-09 to 2011-12 are as under : Asst. Year Income declared u/s.153A (Rs.) Total Additions Accrued Income (Rs.) Unaccounted cash receipts (Rs.) Wrong Claim of expenditure (Rs.) 2008-09 1,68,45,707 8,35,91,047 NIL 9,54,36,754 2009-10 15,28,58,320 17,79,43,250 1,85,00,000 34,43,01,569 2010-11 28,64,99,700 8,70,54,416 2,67,71,921 39,03,26,041 2011-12 42,16,56,730 9,58,64,287 NIL 50,75,21,020 2.2 Aggrieved by the orders of assessment for Assessment Years 2008- 09 to 2011-12 containing the above additions made by the Assessing Officer, the assessee filed appeals before the CIT (Ap....
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..... 15. Without prejudice, the authorities below erred in relying on the material A/BSG/01 & A/BSG/02 without clarifying the questions raised on the said seized material. 16. The authorities below erred in relying on statements recorded from Mr. Bharat S Ghorpade, Mr. Dinesh Kumar Singhi, Mr.Kartikeya M Ghorpade, Mr. K.V. Balan and Mr. Antony Balraj. 17. The authorities below erred in relying on statements supra in Ground No.16 without providing opportunity to cross examine. 18. That the approval granted u/s153D is not as per law. 19. The appellant denies the liabilities of interest u/s 234B & 234C of the Act. Further prays that the interest if any should be levied only on returned income. 20. No opportunity has been given before levy of interest u/s 234B and 234C of the Act. Without prejudice to the appellant's right of seeking waiver before appropriate authority, the appellant begs for consequential relief in the levy of interest u/s 234B and 234C of the Act. 21. For the above and other grounds and reasons which may be submitted during the course of hearing of the appeal, the assessee requests that the appeal be allowed....
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....short 'BSG'), Kartikeya M Ghorpade (in short 'KMG'), Ambika K Ghorpade (in short 'AKG') and Dinesh Kumar Singhi (in short 'DKS'). On an analysis of the above referred seized material, the Assessing Officer made the following additions : Asst. Year Total unaccounted cash sales Receipts (Rs.) Undisclosed income of KMIORE (Rs.) Undisclosed income of AKG (Rs.) 2008-09 16,71,82,094 8,35,91,047 8,35,91,047 2009-10 19,06,35,900 17,79,43,250 1,26,92,650 2010-11 15,27,27,045 8,70,54,416 6,56,72,629 2011-12 12,95,46,334 9,58,64,287 3,36,82,047 Total : 64,00,91,373 44,44,53,000 19,56,38,373 5.2 The Assessing Officer's case, based on an appraisal of the seized documents, is that it has transpired that the assessee along with Smt. Ambika Ghorpade had extracted iron ore both with and without permit and had received substantial sums both in cheque as well as in cash. While the amounts received by cheque have been duly recorded in the books of account, the cash components received have not been reflected in the books of account. The addition in the table above (at para 5.1 of this order) represents the alleged cash received....
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....M/s Kartikeyas Manganese and Iron Ores Private Limited at Kartikeya Niwas, Krutika Farm Sandur. The premises at Gaurihara, Gandhi Colony, Hospet, was also searched purportedly u/s 132 of the Act and certain materials were seized. The said premise does not belong to the assessee but belongs to Mr. S.Y. Ghorpade. The warrant of authorization in this search was also not shown to the assessee or its representatives. It was shown to one Mr. S.Y.Ghorpade to whom the said premises belonged to. The seizure of documents marked A/BSG/01 and A/BSG/02 were made in the hands of S.Y. Ghorpade and Bharath S Ghorpade. The said material did not belong to the assessee. During the course of search at Bangalore premises at Mantri Elite, C-1102, Bannerghatta Road, Bangalore, a statement was recorded from Mr. Karthikeya M Ghorpade in the wee hours of the day. The assessee had lot of apprehensions about the legality and the manner in which statement was recorded and immediately filed a letter before the DDIT (Inv) seeking amendment to the statement recorded (PB page 1 to 3). Inspite of the said request, the DDIT (Inv) refused to give a copy of statement recorded to enable the assessee to confirm the vera....
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....ssee and the entries are totally in variance with the books maintained. Not even the rudimentary evidence that the assessee has received cash in excess of what is recorded in the books has been led by the AO. The detailed explanation given by the assessee has been ignored. Thus the addition is based on wholly inconsistent and unsustainable conclusions. There is neither any asset commensurate to the alleged cash receipts nor is actual cash available with the assessee. In the absence of any such asset or valuable, it would be wholly inconsistent to make the above additions. In this regard, the assessee relies on the decision in Nirmal Fashions (P) Ltd vs DCIT - 123 TTJ 180 - Kolkata ITAT (CLPB page 306/317) wherein the tribunal has held as under: "... As per the presumption of the AO, the assessee is carrying on the business of purchase and sale of saree outside the books on large scale which has resulted in the huge income which is not recorded in the assessee's books of account every year. However, during the course of search of the assessee's premises, no unrecorded stock, cash or other assets were found. The Revenue has searched the business premises of the firm/company as well a....
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....udited. 6. In our view, if assessment is allowed to be reopened on the basis of search, in which no incriminating material had been found, and merely on the basis of further investigating the books of accounts which had been already submitted by the assessee and accepted by the Assessing officer at the time of regular assessment, the same would amount to the Revenue getting a second opportunity to reopen the concluded assessment which is not permissible under the law.'' Thus, non adherence to the provisions of section 145(3) of the Act, renders the additions unsustainable. Based solely on the seized material A/BSG/01 & A/BSG/02 the income in the form of alleged cash sales has been calculated at page 53 of the assessment order extracted as under: "Total cash receipts as per seized materials From the above discussion, it is clear that M/s. KMIORE and M/s. AKG have received total cash of Rs. 64,00,91,473/- as evidenced by the seized material. The amount received by M/s. KMIORE and M/s. AKG are purely their profits out of which these concerns might be incurring certain expenses on payment of royalty, administrative expenses etc. All the lega....
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.... 1) Vijaybhai N. Chandrani vs. ACIT - 333 ITR 436 - Guj HC (CLPB page 430/431) 2) Hon'ble Bangalore ITAT in Senate vs. DCIT - 181 TTJ 562 (CLPB page 436/446), 3) P.Srinivas Naik vs ACIT - 114 TTJ 856 - ITAT Bangalore (CLPB page 133/136) 4) PCIT vs Vinita Chaurasia - 394 ITR 758 - DEL HC (CLPB page 80/91) Since the department itself has held the material belongs to Bharat S Ghorpade no addition could be made in the hands of the assessee. Secondly the seized material A/BSG/01 & A/BSG/02 seized is mentioned in panchanama issued to SY Ghorpade/Bharat S Ghorpade at PB page 218. The extract of the portion of panchanama is as under : Sl No Description Total pages Written pages 1 Folder containing loose sheets 72 72 2 Folder containing loose sheets 150 150 When the assessee sought copies of the seized material it was provided by the department and the same has been filed before the Hon'ble ITAT. The assesseee immediately took objection of the contents and denied any cash transaction contemporaneously vide letter dt. 26.10.2010 & 22.11.2010 (PB page 1 & 2) and also requested for authentication of th....
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....ry seized marked as A/BSG/01 contains folder of loose sheets (total pages 72 & written pages 72) & A/BSG/02 contains folder of loose sheets (total pages 150 & written pages 150). The search was also conducted in the case of Ambika Ghorpade at C-1102, Mantri Elite Apartments, Bannerghatta Road, Bangalore (page 422 PB). The search commenced on 28.09.2010 at 9.30am and the proceedings closed on 29.09.2010 at 8.45am. During the search proceedings the statement on oath of Kartikeya M Ghorpade (husband of Ambika Ghorpade and Managing Director of KMIORE) was recorded on oath questioning him on certain pages of the seized material marked as A/BSG/01 & A/BSG/02 (page 408PB). The statement u/s 132(4) was also recorded of Ambika Ghorpade at the same time during the search proceedings questioning her on certain pages of the seized material marked as A/BSG/02 (page 420 PB). In view of the above factual position, it is incorrect to say that the seized material shown to Kartikeya M Ghorpade/Ambika Ghorpade while recording statement is the same seized material which was seized in the case of Bharat S Ghorpade at his father SY Ghorpade residence as the said seized material was sti....
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.... KIMORE Pvt., Ltd., and Karthikeyas Manganese & Iron Ore Mine with Bharath Mines & Minerals Ltd and also other parties. It contains details of supply of iron ore with permits and without permits to these parties and payments received against the same by both cheque and cash.'' The above indicates that the alleged seized material A/BSG/01 & A/BSG/02 were at Hospet which is about 500kms from Bangalore. The access to Hospet is by rail and road and there is no airport. The statement of Kartikeya M Ghorpade in question no. 7 & 13 (PB page 412) extracted hereunder: "Q.No.7: I am showing you pages 71,72,109,115,118,125,129,135 and 147 of the seized material marked as A/BSG/02 seized from the residence of Mr. Bharat Ghorpade at Gandhi Colony, Hospet during the course of search u/s 132(1) on 28/9/2010. Please go through the pages and explain the contents of the same. Also please state who has written these pages. Q.No.13: I am showing you page No.34 of the seized material marked as A/BSG/01 seized from the residence of Mr. Bharat Ghorpade at Gandhi Colony, Hospet during the course of search u/s 132(1) on 28/9/2010. Please go through the page and explain the conten....
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....mention by the AO that the cheque transaction in seized material tallies with the accounted transaction in the books of accounts of the assessee is again factually incorrect. The assessee has filed the copy of the ledger extracts indicating the bank transactions and also comparative statement between the seized material and the books of accounts (PB page 456 to 470) clearly indicating that the transaction through the bank accounts of the assessee does not tally with that of the seized material, thus rendering the only argument of the AO also incorrect. The seized material A/BSG/01 & A/BSG/02 are a bunch of loose sheets with semi legible scribblings is not a regular books of accounts and not even kaccha books of accounts. It has lot of overlapping information and not continuous. It does not even mention the individual transactions but mentions certain aggregate of transactions in somewhat non descriptive code words. Several conflicting interpretations are possible and no uniform conclusion can be drawn. It is in this context that the Hon'ble Supreme Court has held in Common Cause (A Registered Society) & Others vs. Union of India & Others - 98 CCH 28 (CLPB page 279, para 17....
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....e of the same statements cannot be relied on. In addition to the above, the assessee relies on the following case laws: On the issue of assessment made based on third party statements: PCIT vs Saumya Construction P Ltd - 387 ITR 529 - GUJ HC CIT vs SMC Share Brokers Ltd - 288 ITR 345 - Delhi HC On the issue that addition cannot be made on estimate basis, guess work and suspicion: Dhakeswari Cotton Mills Ltd vs CIT - 26 ITR 775 - SC (CLPB page 155/156) A.S.Sivan Pillai vs CIT - 34 ITR 328 - Madras HC(CLPB page 162/163) On the issue that admission is not conclusive and has no evidentiary value: Pullangode Rubber Produce Co Ltd vs. State of Kerala & Anr - 91 ITR 18 - Supreme Court (CLPB page 189/190) CIT vs. S.Khader Khan Son - 352 ITR 480 - SC (CLPB page 336) CBDT Instruction No.F.No.286/2/2003/IT(Inv) - confession of additional income during the course of search & seizure and survey operation (CLPB page 167) On the issue that loose sheets have no evidentiary value/no corroborative material: Common Cause (A Registered Society) & Others vs. Union of India & Others - 98 ....
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....marked as A/BSG/01 and A/BSG/02. iv. Show cause notice was issued and served on the assessee by making the seized documents as part of the show cause notice. The statements relevant of Mr Bharat S Ghorpade was also made as part of the show cause notice. The show cause notice is extracted in the assessment order at page 3 to 16 of the assessment order. The assessee in reply dated 15/11/2012 acknowledged the receipt of seized material marked as A/BSG/01 and A/BSG/02. All the statements recorded and relied on also provided to the authorised representative of the assessee. v. One more show cause notice dated 9/1/2013 was issued by incorporating the relevant pages of the seized material and the statements of Sri Kartikeya Ghorpade Managing Director of the assessee company (page 19 to 21 of the assessment order). The assessee filed reply on 6/2/2013 (page 21 to 24 of assessment order). vi. All the issues on point wise were considered and finding was recorded by the Assessing Officer as under: - a. with respect to objection stating statement does not indicate any payment of cash or activity outside books. Assessee attention was invited to statement date....
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....tion of the statements of Mr Bharat S Ghorpade are extracted at page 29 to 37 of assessment order. c. Mrs Ambika Ghorpade was questioned and she stated that entire business activities are undertaken by husband and he only explain the seized materials. d. Mr Dinesh Kumar Singhi accepted the payment of cash of Rs. 1.40 crores in respect of billing done in April 2010 reflected in seized material. e. Page 25 and 26 of the seized material marked as A/KMIORE/S/06 seized from the office of M/s.KMIORE Pvt Ltd during search and 28/9/2009 containing billing details for month of August 2009 and September 2009. As per this page, the total iron ore sold during these months was 127006.97 MT at the rate of Rs. 750 per MT for total sale value of Rs. 9,52,55,227. Out of this, the amounts covered in the invoice was Rs. 6,64,55,424/- adjusted to the permitted quantity of iron ore measuring 52442.780 MT. The remaining sale consideration of Rs. 2,87,99,803/- is written as cash for the month of August and September 2009 out of which a sum of Rs. 37,99,803/- is written to have been received and the balance of Rs. 2,50,00,000/- yet to be received. A sum of Rs. 1,50,00,000/- bein....
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.... MT of iron ore without permits during the period February 2008 to June 2008 and cash receipt for without permit quantity was Rs. 15,59,03,904/-. The total cash sales for the period February 2008 to June 2008 works out to Rs. 23,21,85,504/-. The Page further contains cash receipts of Rs. 8,86,98,500/- towards sale of iron ore without permits during month of July 2008 and August 2008 and the quantity of iron ore is 57041 MT (50767 Mt fines and 6274 MT lumps) hence total sale receipts for the period February 2008 to August 2008 is Rs. 32,08,84,004/-. i. Mr Bharat S Ghorpade admitted the above cash receipts on sale of iron ore during February 2008 to August 2008 and not being accounted in the books of accounts of the assessee for relevant period. (Statement extracted at page 44 to 48 of the assessment order). The above cash receipts have been admitted by Mr Kartikeya Ghorpade on sale of iron ore during the period on confrontation of the seized material, and the same has been admitted to be undisclosed income. (Relevant Statement of Mr Kartikeya Ghorpade extracted at page 49 to 50 of assessment order). j. The cheque component received on sale of iron ore by the assess....
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....Appellate Commissioner and upheld the same. 4. Reply to assessee submission. a. The contention of the assessee that addition of Rs. 7,85,91,047/- towards cash sales and cash receipt is without evidence is incorrect. The seized material marked as A/BSG/01 and A/BSG/02 clearly reflected the sale of iron ore with and without permits, cheque component and cash component. The sale of iron ore with permits and the consideration received in cheque component tallied with the books of accounts maintained by the assessee. Invoices are tampered to match the quantity with permits. Mr Bharat Ghorpade was looking after the affairs of the assessee company has admitted the content's to be correct. Another party to the contract Mr Dinesh Kumar Singhi has further admitted the contents to be true. Mr Kartikeya Ghorpade Managing Director of the assessee company has accepted the contention of the seized material to be correct and true. In such circumstances the contention of the assessee is an afterthought and without any basis. b. The contention of the assessee that objection filed has been summarily dismissed without meaningful going through the same is incorrect on the fac....
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.... the books of accounts maintained by the assessee. g. Another illogical contention raised by the assessee with respect to the possibility of confronting the same seized material to Mr Bharat Ghorpade and Mr Kartikeya Ghorpade's immaterial and irrelevant. What is relevant is whether the material found and seized has been confronted and the same aspect is not under dispute. In view of the present technology, the contention of the assessee is illogical. h. All other contentions which are not specifically commented are denied as false. The further contention of the assessee that approval granted under section 153D of the Act is without application of mind and in mechanical manner is incorrect. The approval has been granted strictly in conformity with the provisions of the Act. Wherefore it is respectfully prayed to dismiss the appeal filed by the assessee." 6. ANALYSIS & CONCLUSIONS. 6.1.1 We have heard the rival contentions, perused and carefully considered the submissions put forth, the orders of the authorities below and the others material on record, including references to the relevant seized material in AIBSG/01, AIBSG/02, A/KMIORES (Series), AIDKS-1 and t....
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.....2 The Assessing Officer considered the objections of the assessee and held that the material seized from Ambika Ghorpade and the assessee M/s. KMIORE belongs to Bharat S. Ghorpade and thereafter also issued a notice, under Section 153A r.w.s. 153C of the Act to 'BSG' for Assessment Years 2005-06 to 2010-11. In this background, it is the contention of the assessee that since the seized material, more specifically AIBSG/01 and AIBSG/02 did not belong to the assessee or Ambika Ghorpade ('AKG'), no assessment / addition could have been made on the basis of the said material. The learned Authorised Representative for the assessee further submitted that even if the name of the assessee is found in the seized material, the same cannot be used against the assessee as has been held in the following judicial pronouncements :- 1) Vijaybhai N. Chandrani vs. ACIT - (333 ITR 436) - Guj HC 2) Hon'ble Bangalore ITAT in Senate vs. DCIT - (181 TTJ 562) 3) P.Srinivas Naik vs ACIT - 114 TTJ 856 - ITAT Bangalore. 4) PCIT vs Vinita Chaurasia - (394 ITR 758) - DEL HC. 7.2 Per contra, the Ld. Standing Counsel for Revenue objected to the assessee's submissions, a....
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.... than that mentioned in the seized material were made available to it. Similarly in the case of seized material in AIBSG/02 wherein as per the Panchanama the total pages were 150 and written pages were 150, the written pages supplied to the assessee were 182. Thus, in both the aforesaid seized material, the copies thereof given to the assessee appears to be in excess of the seized material. 8.2 In response to the above objections raised by the assessee, the ld. standing counsel has submitted as under in para 5(f) of written submissions :- " 5.(f) The contention raised with respect to the discrepancies in the pagination of the seized material is hyper technical, afterthought and baseless. It is an attempt made by the assessee to deviate from the main issue. When the same material was provided to the assessee the same has been admitted and this is an attempt to overcome the admission made on oath. The entire set of seized material has been placed before this Hon'ble Tribunal and the authenticity can be examined. Each and every page of the document has been authenticated by Mr Bharat S Ghorpade by affising signature and date, from whose possession the same has been seized.....
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.... in the case of Ambika Ghorpade at C-1102, Mantri Elite Apartments, Bannerghatta Road, Bangalore (page 422 PB). The search commenced on 28.09.2010 at 9.30am and the proceedings closed on 29.09.2010 at 8.45am. During the search proceedings the statement on oath of Kartikeya M Ghorpade (husband of AmbikaGhorpade and Managing Director of KMIORE) was recorded on oath questioning him on certain pages of the seized material marked as A/BSG/01 & A/BSG/02 (page 408PB). The statement u/s 132(4) was also recorded of AmbikaGhorpade at the same time during the search proceedings questioning her on certain pages of the seized material marked as A/BSG/02 (page 420 PB). In view of the above factual position, it is incorrect to say that the seized material shown to Kartikeya M Ghorpade/Ambika Ghorpade while recording statement is the same seized material which was seized in the case of Bharat S Ghorpade at his father SY Ghorpade residence as the said seized material was still in Hospet on 29.09.2010 till 7.45am. Since the statements were taken from Kartikeya M Ghorpade and Ambika Ghorpade in the wee hours of the day and there being no clarity on the basis on which the statements ....
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....citing the time of search, the time of recording the statements and alleging the impossibility of showing documents which were in another premises which was far away. 9.3.2 Be that as it may, it is settled principle that the assessment of income has to be based on evidence. The statement recorded during search action can be relied upon provided it is supported by evidence collected during search action, However, mere reliance on a statement recorded during search action, that too of third persons, for making additions in the case of the assessee is not appropriate. More particularly so, in the circumstance of the case on hand where the assessee has claimed that the statement was not based on any documents. It is also settled principle that when documents / statements are used against the assessee, copies of the same have to be provided and opportunities afforded to the assessee to explain the statements made. Mere reliance on a statement recorded in the wee hours of the day in the course of search action without any further efforts to bring in corroborative evidence and afford opportunities to the assessee and to the deponents also to explain or rebut or correct the statements i....
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.... to the twin requirements of Sec. 34 of the Evidence Act, no liability under law can be brought about based upon the loose sheets and therefore they cannot be relied upon for framing of assessments. In support of the above contentions, the assessee had placed reliance on some judicial pronouncements. 10.2.1 We have considered the submissions and contentions put forth in this regard and perused and carefully considered the material on record. We have already held that the action of the Assessing Officer is making additions based on seized material in AIBSG/01 & AIBSG/02 are not appropriate as the Assessing Officer has not followed the due process and procedure and has not brought on record any corroborative evidence to support the statements made. Therefore, this issue and contention raised by the assessee that the loose sheets in the two seized bundles AIBSG/01 and AIBSG/02 does not constitute actionable evidence has been rendered academic and we therefore refrain from making any observation and adjudication on this issue. 10.3.1 Similar arguments / contentions as above have been put forth by both parties for Assessment Years 2009-10 to 2011-12 in respect of appeals in ITA No....
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....ed on the statements of Mr.K.V.Balan and Mr.Antony Balaraj. It is submitted that all the expenses are duly recorded in the books of accounts and the payments have been made through the regular banking channels. The seized material A/KMIORE/S/5 referred by the AO is not incriminating as the expenses referred therein and the TDS calculation is part of the books of accounts. No expenses can be disallowed merely on the basis of statement of third parties. The copies of the statements were not given to the assessee. No opportunity for cross examination has been provided to the assessee and in the absence of the same statements cannot be relied on. In addition to the above, the assessee relies on the following case laws: On the issue of assessment made based on third party statements: PCIT vs Saumya Construction P Ltd - (387 ITR 529) - GUJ HC CIT vs SMC Share Brokers Ltd - (288 ITR 345) - Delhi HC" 11.3 On his part, the standing counsel for the Department submitted that the Department's case is discussed at pages 54 to 65 of the order of assessment for Assessment Year 2008-09. Revenue has further sought to buttress its arguments in written submissions in para 2(vii),....
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....explain on account of lack of knowledge since he was not in charge of administration. Sri Antony Balaraj has stated that he has not carried out any contract work on behalf of the assessee company and the assessee has also pointed out certain discrepancies / contradictions in his statements. 11.4.2 These could have been clarified / confronted to the assessee, by the Assessing Officer. But it appears that neither has the assessee been provided with copies of statements recorded from the aforesaid persons nor been allowed cross examination. From an appreciation of the material on record, it appears to us that the situation which emerges is that the seized material from BSG and AIKMIOREIS/5 utilised by the Assessing Officer to make the disallowances on account of bogus expenses do not support or corroborate one another. The statements of Sri Antony Balaraj and Sri K.V. Balan recorded by the Department have not been supplied to the assessee for rebuttal and therefore it is trite that the same cannot be used against the assessee by the Assessing Officer. Further, opportunity for cross-examination of Sri K.V. Balan and Sri Antony Balaraj has also not been provided to the assessee by th....