TaxTMI 
TaxTMI 
2019 (1) TMI 696
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....ness of manufacturing and trading of gold and silver ornaments, precious/semi precious and coloured stones etc. The assessee filed its return of income U/s 139(1) of the Income Tax Act, 1961 (in short the Act) on 11/10/2010 declaring total income of Rs. 19,72,000/-. Subsequently there was a search and seizure action U/s 132 of the Act on 03/4/2013 at the business premises of the assessee. During the course of search from 03/04/2013 to 05/04/2013, statement of the assessee was recorded on three days. Even during the post search investigation, the statement of the assessee was again recorded on 30/5/2013. Consequently, the Assessing Officer issued notice U/s 153A of the Act and completed the reassessment by making the addition on account of loan taken by the assessee from 12 parties, total amounting to Rs. 4,82,00,000/- U/s 68 of the Act. 3. The assessee challenged the action of the Assessing Officer before the ld. CIT(A). The ld. CIT(A) deleted the addition made by the Assessing Officer on two aspects viz (i) there was no incriminating material either found or seized during the search and seizure action and further the assessee has established the claim of genuineness of the transa....
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....ficer, therefore, in absence of any incriminating material found or seized during the course of search and seizure action, no addition can be made to the income of the assessee when the assessment was not pending on the date of search. The ld AR has pointed out that the assessee filed return of income U/s 139(1) of the Act on 11/10/2010 and the time to issue notice U/s 143(2) of the Act expired on 30/10/2011 and therefore, the assessment for the assessment year under consideration was not pending as on the date of search. Admittedly there is not incriminating material or document was found during the course of search disclosing any undisclosed income of the assessee. All the transactions of loan were duly recorded in the books of account of the assessee and were subjected to a verification of the Assessing Officer. The ld AR has further submitted that the alleged admission in the statement recorded U/s 132(4) of the Act is nothing but it was obtained by the department when the assessee was continuously grilled for three days to get this admission. He has referred to the question No. 77 and again referred to question No. 39 which was already put to the assessee prior to question No.....
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....i Steel (India) Vs ACIT (2013) 259 CTR 281 (Raj). Hence, the ld. CIT(A) has rightly deleted the addition on the ground that there was no incriminating material found or seized during the search and seizure operation. 6.1 On merits, the ld AR of the assessee has submitted that the Assessing Officer issued noted U/s 136 of the Act to all the loan creditors which was duly responded. The assessee has also filed all the relevant supporting documentary evidence in respect of all the loan creditors to establish the identity and creditworthiness of the creditor as well as genuineness of the transaction. He has referred to the documents filed by the assessee before the Assessing Officer in support of the claim at page No. 207 to 505 of the paper book. Further no cash was either found or deposited in the bank accounts and the loan creditors to arrive to the conclusion that these are accommodation entries against the payment of the cash. In support of his contention, he has relied upon the decision of Hon'ble Mumbai High Court in the case of CIT Vs. Deepak Kumar Agarwal 398 ITR 586 and the decision of the Kolkata Benches of the Tribunal in the case of ITO Vs M/s Shlok Fashions Pvt. Ltd. orde....
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....eafter the statement of the assessee was again resumed in the morning of 05/4/2013 and continued up to question No. 78. It is manifest from the statement recorded U/s 132(4) of the Act that repeated questions were asked about the genuineness of the loans taken by the assessee during the financial year 2009-10 relevant to the assessment year under consideration and the assessee has given the answer and stated that all these loans are genuine and taken through banking channel and the assessee also repaid these loans prior to the date of the search. These transactions are very much part of the regular books of account of the assessee. However, the search team again put question to the assessee as question No. 77 in which the assessee has stated that the assessee has checked the details of the loans from M/s Dipnarayan Vyapar Pvt. Ltd. for which the assessee received cash and the same was declared as undisclosed income for the year of the search. We find that prior to that the assessee was also asked question No. 34 to 36 and question No. 39. Even after the statement recorded U/s 132(4) of the Act, the Investigation Wing again summoned the assessee U/s 131 of the Act for conducting pos....
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....again restarted in the morning at 7.50 a.m. and the question No. 77 was again asked specifically regarding loan from M/s Dipnarayan Vyapar Pvt. Ltd. in reply to that the assessee has explained that after trying to remember for continuously for two days and hoping the cooperation from the department, he said that he received cash against the said loan which was declared as undisclosed income for the year of search. The Investigation Wing was still not satisfied with the statement of the assessee and again called the assessee for further investigation on 30/5/2013 and thereafter on 21/6/2013. The assessee was again put the question about the loan taken from M/s Dipnarayan Vyapar Pvt. Ltd., in reply, the assessee explained that on repeated instances of the investigation team and due to exhausted mind, the assessee given an incorrect reply to question No. 77 recorded U/s 132(4) of the Act on 05/4/2013 and again stated that after verifying the books of account, the said loan was taken on interest and was also repaid both the transactions are through banking channel. Thus, having regard to the background of the circumstances in which statement of the assessee regarding said transaction o....
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.... which the search takes place. ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise. iii. The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. The AO has the power to assess and reassess the 'total income' of the aforementioned six years in separate assessment orders for each of the six years. In other words there will be only one assessment order in respect of each of the six AYs "in which both the disclosed and the undisclosed income would be brought to tax". iv. Although Section 153 A does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information available with the AO which can be related to the evidence found, it does not mean that the assessment "can be arbitrary or made without any relevance or nexus with the seized material. Obviously an assessment has to be made under this Section only on the basis of seized material." v. In absence of any incriminating material, the co....
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....etan Das Lachman Das (supra). Incidentally, both these decisions were discussed threadbare in the decision of this Court in Kabul Chawla (supra). As far as Anil Kumar Bhatia (supra) was concerned, the Court in paragraph 24 of that decision noted that "we are not concerned with a case where no incriminating material was found during the search conducted under Section 132 of the Act. We therefore express no opinion as to whether Section 153A can be invoked even under such situation". That question was, therefore, left open. As far as Chetan Das Lachman Das (supra) is concerned, in para 11 of the decision it was observed: "11. Section 153A (1) (b) provides for the assessment or reassessment of the total income of the six assessment years immediately preceding the assessment year relevant to the previous year in which the search took place. To repeat, there is no condition in this Section that additions should be strictly made on the basis of evidence found in the course of the search or other post-search material or Information available with the Assessing Officer which can be related to the evidence found. This, however, does not mean that the assessment under Section 153A can be ....
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....provision, which is intricately linked with search and requisition under Sections 132 and 132A of the Act, it is apparent that: (a) the assessments or reassessments, which stand abated in terms of II proviso to Section 153A of the Act, the AO acts under his original jurisdiction, for which, assessments have to be made; (b) regarding other cases, the addition to the income that has already been assessed, the assessment will be made on the basis of incriminating material; and (c) in absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made." 34. The argument of the Revenue that the AO was free to disturb income de hors the incriminating material while making assessment under Section 153A of the Act was specifically rejected by the Court on the ground that it was "not borne out from the scheme of the said provision" which was in the context of search and/or requisition. The Court also explained the purport of the words "assess" and "reassess", which have been found at more than one place in Section 153A of the Act as under: "26. The plea raised on behalf of the assessee that as the first provi....
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....s. In other words there will be only one assessment order in respect of each of the six AYs "in which both the disclosed and the undisclosed income would be brought to tax". iv. Although Section 153 A does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information available with the AO which can be related to the evidence found, it does not mean that the assessment "can be arbitrary or made without any relevance or nexus with the seized material. Obviously an assessment has to be made under this Section only on the 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 ba....
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....sclosed income of the block period that was assessed, section 153A of the Act seeks to assess the total income for the assessment year, which is clear from the first proviso thereto which provides that the Assessing Officer shall assess or reassess the total income in respect of each assessment year falling within such six assessment years. The second proviso makes the intention of the Legislature clear as the same provides that assessment or reassessment, if any, relating to the six assessment years referred to in the sub-section pending on the date of initiation of search under section 132 or requisition under section 132A, as the case may be, shall abate. Sub-section (2) of section 153A of the Act provides that if any proceeding or any order of assessment or reassessment made under sub-section (1) is annulled in appeal or any other legal provision, then the assessment or reassessment relating to any assessment year which had abated under the second proviso would stand revived. The proviso thereto says that such revival shall cease to have effect if such order of annulment is set aside. Thus, any proceeding of assessment or reassessment falling within the six assessment years pri....
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....te that the scope and ambit of the assessment would include any order which the Assessing Officer could have passed under section 147 of the Act as well as under section 153A of the Act. ** ** ** 19. On behalf of the appellant, it has been contended that if any incriminating material is found, notwithstanding that in relation to the year under consideration, no incriminating material is found, it would be permissible to make additions and disallowance in respect of an the six assessment years. In the opinion of this court, the said contention does not merit acceptance, inasmuch as. the assessment in respect of each of the six assessment years is a separate and distinct assessment. Under section 153A of the Act, assessment has to be made in relation to the search or requisition, namely, in relation to material disclosed during the search or requisition. If in relation to any assessment year, no incriminating material is found, no addition or disallowance can be made in relation to that assessment year in exercise of powers under section 153A of the Act and the earlier assessment shall have to be reiterated. In this regard, this court is in complete agreement with the view adop....
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....al distinguishing features in that case which makes its ratio inapplicable to the facts of the present case. In the first place, the Assessees there were engaged in the business of Pan Masala and Gutkha etc. The answers given to questions posed to the Assessee in the course of search and survey proceedings in that case bring out the points of distinction. In the first place, it was stated that the statement recorded was under Section 132(4) and not under Section 133A. It was a statement by the Assessee himself. In response to question no. 7 whether all the purchases made by the family firms, were entered in the regular books of account, the answer was: "We and our family firms namely M/s. Assam Supari Traders and M/s. Balaji Perfumes generally try to record the transactions made in respect of purchase, manufacturing and sales in our regular books of accounts but it is also fact that some time due to some factors like inability of accountant, our busy schedule and some family problems, various purchases and sales of Supari, Gutka and other items dealt by our firms is not entered and shown in the regular books of accounts maintained by our firms." 65. Therefore, there was a cle....
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....n such cases have to draw inferences, because of the nature of the materials - since they could be scanty (as one habitually concealing income or indulging in clandestine operations can hardly be expected to maintain meticulous books or records for long and in all probability be anxious to do away with such evidence at the shortest possibility) the element of guess work is to have some reasonable nexus with the statements recorded and documents seized. In tills case, the differences of opinion between the CIT (A) on the one hand and the AO and ITAT on the other cannot be the sole basis for disagreeing with what is essentially a factual surmise that is logical and plausible. These findings do not call for interference. The second question of law is answered again in favour of the revenue and against the assessee." 69. What weighed with the Court in the above decision was the "habitual concealing of income and indulging in clandestine operations" and that a person indulging in such activities "can hardly be accepted to maintain meticulous books or records for long." These factors are absent in the present case. There was no justification at all for the AO to proceed on surmises an....
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....at: (a) the assessments or reassessments, which stand abated in terms of II proviso to Section 153A of the Act, the AO acts under his original jurisdiction, for which, assessments have to be made; (b) regarding other cases, the addition to the income that has already been assessed, the assessment will be made on the basis of incriminating material and (c) in absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. Though such a claim by the assessee for the first time under Section 153A of the Act is not completed, the case in hand, has to be considered at best similar to a case where in spite of a search and/or requisition, nothing incriminating is found. In such a case though Section 153A of the Act would be triggered and assessment or reassessment to ascertain the total income of the person is required to be done, however, the same would in that case not result in any addition and the assessments passed earlier may have to be reiterated. 23. The reliance placed by the counsel for the appellant on the case of Anil Kumar Bhatia (supra) also does not help the case of the assessee. The rel....
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....away with in a case covered by Section 153A. With all the stops having been pulled out, the Assessing Officer under Section 153A has been entrusted with the duty of bringing to tax the total income of an assessee whose case is covered by Section 153A, by even making reassessments without any fetters, if need be. 21. Now there can be cases where at the time when the search is initiated or requisition is made, the assessment or reassessment proceedings relating to any assessment year falling within the period of the six assessment years mentioned above, may be pending. In such a case, the second proviso to sub-section (1) of Section 153A says that such proceedings "shall abate". The reason is not far to seek. Under Section 153A, there is no room for multiple assessment orders in respect of any of the six assessment years under consideration. That is because the Assessing Officer has to determine not merely the undisclosed income of the assessee, but also the 'total income' of the assessee in whose case a search or requisition has been initiated. Obviously there cannot be several orders for the same assessment year determining the total income of the assessee. In order to e....
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....s have to be made taking note of the undisclosed income, if any, unearthed during the search and the income that escaped assessments are required to be clubbed together with the total income determined in the original assessment and assessed as the total income. The observations made in the judgment contrasting the provisions of determination of undisclosed income under Chapter XIVB with determination of total income under Sections 153A to 153C of the Act have to be read in the context of second proviso only, which deals with the pending assessment/reassessment proceedings. The further observations made in the context of de novo assessment proceedings also have to be read in context that irrespective of the fact whether any incriminating material is found during the course of search, the notice and consequential assessment under Section 153A have to be undertaken. 25. The argument of the learned counsel that the AO is also free to disturb income, expenditure or deduction de hors the incriminating material, while making assessment under Section 153A of the Act is also not borne out from the scheme of the said provision which as noticed above is essentially in context of search an....
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....R 645 etc. 7.3 I have perused the order of the AO and submissions made in this regard. Perusal of assessment order passed u/s 143(3)/153A shows that all the additions made by the AO are not relatable to any seized material. I also find that for the A.Yr the assessment stood completed on the date of search. 7.4 The issue of additions made by the AO in the assessment u/s 143(3)/153A without any reference to incriminating seized material was considered by the Hon'ble Rajasthan High court in the case of Jai Steel limited vs. ACIT (88 DTR 1). The Hon'ble court was of the view in case of completed assessments no addition can be made if no incriminating seized material is found during the course of search. The relevant observation of the judgment is reproduced below: "In the firm opinion of this Court from a plain reading of the provision along with the purpose and purport of the said provision, which is intricately linked with search and requisition under Sections 132 and 132A of the Act, it is apparent that: (a) The assessments or reassessments, which stand abated in terms of II proviso to Section 153A of the Act, the AO acts under his original jurisdiction, for which, asses....
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....terated 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. Conclusion 38. The present appeals concern AYs, 2002-03, 2005-06 and 2006-07.0n the date of the search the said assessments already stood completed. Since no incriminating material was unearthed during the search, no addi....
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....t amount to admission of any bogus transaction. Further the transactions were duly recorded in the books of account at the time of taking the loans in the F.Y. 2009-10 and again at the time of repayment of these loans in the F.Y. 2011-12, which was not disturbed by the Assessing Officer. Even the interest paid by the assessee after deducting TDS was not disturbed by the Assessing Officer in the assessment order passed U/s 153A read with Section 143(3) of the Act for the A.Y. 2011-12. The copy of the said order was filed by the ld AR of the assessee, which reveals that the Assessing Officer though made disallowances of certain expenditure but has not made any disallowance of the interest paid by the assessee in respect of the loans in question. We further note that the assessee has produced documentary evidence in support of claim and to discharge the onus of proving the identity and creditworthiness of the creditor as well as the genuineness of the transaction. The documents produced by the assessee in respect of these creditors are as under: Name of party from whom loan taken Particulars of Documents submitted Interlink Saving & Finance Pvt. Ltd * Confirmation of party ....
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....ng with all annexure of 31.03.2012. Tara Vinimay Pvt. Ltd a) Pertaining to AY 2010-11: - Confirmation of party of loan taken. The copy of ITR for AY 2010-11. * The copy of director report, audit report, Balance Sheet and Profit & Loss a/c along with all annexure of 31.03.2010. * Copy of bank statement showing the entry of payment made to assessee. b) Pertaining to AY 2011-12: - * Confirmation of party of loan taken. * The copy of ITR for AY 2011-12. * The copy of director report, audit report, Balance Sheet and Profit & Loss a/c along with all annexure of 31.03.2011. c) Pertaining to AY 2012-13: - * Confirmation of party of loan taken. * PAN Card Copy of Party. * The copy of ITR for AY 2012-13. * The copy of director report, audit report, Balance Sheet and Profit & Loss a/c along with all annexure of 31.03.2012. * Copy of bank statement showing the relevant entry. Dipnarayan Vyapaar Pvt. Ltd a) Pertaining to AY 2010-11: - * Confirmation of party of loan taken. * PAN Card Copy of Party * The copy of ITR for AY 2010-11. * The copy of director report, audit report, Balance Sheet and Profit & Loss a/c along with all annexure of 31.03.2010. * Copy o....
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....lakha Transmedi Pvt. Ltd * Confirmation of party of loan taken. * The copy of ITR for AY 2010-11. * Copy of bank statement showing the entry of payment made to assessee. It is manifest that the assessee filed confirmation of the parties, the PAN card, copy of ITR, their financial statements/accounts duly audited alongwith audit report, copy of bank statements showing the payment and receipts of the amounts of loan. All these documents are relevant for proving the transaction of loan in questions and Assessing Officer has not brought any contrary material or record to disprove or contradict the documentary evidence produced by the assessee. The identity of the loan creditors is even otherwise not in dispute. The only ground of the Assessing Officer is that these are accommodation entries, however the Assessing Officer has not pointed out any discrepancy in the documentary evidence filed by the assessee either in the bank account statement or in the financial statement of the loan creditors. Once the loan creditors have accepted the transactions and which is also established from the relevant record then the said documentary evidence cannot be rejected merely on the basis of t....
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....s also complied the notices issue by AO. With respect to the statement of the of the partner Shri Mahendra K Agarwal the records reveal that Shri Mahendra Kumar Agarwal in his statement recorded on dated 04.04.2013 recorded during the course of search in answer to Q. No. 77 admitted that the transaction with M/s Dipnarayan Vypar Pvt. Ltd was not genuine transaction. However in his post search statement recorded on 21.06.2013 before the ADIT he retracted from the admission made in Q. No. 77 of statements dated 04.04.2013 and said that admission was due to mental tiredness because of repetitive questions of department officer. Further in the answer to same question of post search statement he stated that he took loan from M/s Dipnarayan Vypar Pvt. Ltd through cheque and repaid the same through cheque. He further said that he did not do any cash transaction with this company. The relevant question and its answer is reproduced as under: - At this juncture it is important to point out that the mere statement u/s 132[4] per se does not constitute incriminating material for the purposes of assessment u/s 153A. Judgments of Hon'ble Delhi High court in the case of Best Infrastructure'....
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....he appeal, that all the cash creditors were assessed to Income-tax and they provided a confirmation as well as their permanent account number. They had their own respective bank accounts which they had been operating and it was not the claim of the Assessing Officer that the assessee was operating their bank accounts. Most of the cash creditors appeared before the Assessing Officer and their statements under section 131 of the Income-tax Act, 1961, were also recorded on oath. There was no clinching evidence nor had the Assessing Officer been able to prove that the money actually belonged to none but the assessee. The addition of Rs. 17,27,250 under section 68 was not justified. (ii) In the case of Nemi Chand Kothari vs CIT (2003) 264 ITR 254 (Gau): Held that it is not the business of the assessee to find out the source or sources from where the creditor had accumulated the amount which he had advanced in the form of loan to the assessee and section 68 cannot be read to show that in the case of failure of sub-creditors to prove their creditworthiness the amount advanced as loan to the assessee by the creditor shall have to be read as corollary as the income from undisclosed sourc....
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.... the findings in favour of the assessee. Even as regards the three referred share capital contributors, it is noticed that they are existing assessees having PA numbers; and are being regularly assessed to tax. The appellate authorities cannot be said to have erred in deleting the additions in their regard too at the hands of assessee-company. 11. Ultimately, the question as to whether the source of investment or of credit has been satisfactorily explained or not remains within the realm of appreciation of evidence; and the Courts have consistently held that such a matter does not give rise to any substantial question of law. In the case of CIT v. Orissa Corpn. (P.) Ltd. [1986) 159 ITR 78 (SC), the Hon'ble Supreme Court held as under:- "13. In this case, the assessee had given the names and addresses of the alleged creditors. It was in the knowledge of the Revenue that the said creditors were income-tax assessees. Their index numbers were in the file of the Revenue. The Revenue, apart from issuing notices under s. 131 at the instance of the assessee, did not pursue the matter further. The Revenue did not examine the source of income of the said alleged creditors to find o....
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....d certain additions made by AO holding the transaction of shares to be genuine, then it would not involve any substantial issue of law as such. In other words, this Court in its appellate jurisdiction under s. 260A ibid, would not again de novo hold yet another factual inquiry with a view to find out as to whether explanation offered by assessee and which found acceptance to the CIT(A) and Tribunal is good or bad, or whether it was rightly accepted, or not. It is only when the factual finding recorded had been entire!, de hors the subject, or that it had been based on no reasoning, or based on absurd reasoning to the extent that no prudent man of average judicial capacity could ever reach to such conclusion, or that it had been found against any provision of law, then a case for formulation of substantial question of law' on such finding can be said to have been made out. 11. In our view, no such error could be noticed by us in the impugned order because as observed supra, the Tribunal did go into the details of explanation offered by assessee and then accepted the explanation by placing reliance on the documents filed by assessee. As a consequence thereof, the additions mad....
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....on'ble High Court has given the finding and observation on the specific facts of the said case in para 14 and 15 as under: "14 Having noticed the arguments of the learned counsel for the parties, we deem it proper at the outset to take into consideration the finding of the Tribunal about retraction/resiling of the statements recorded under Section 132(4) as the Tribunal has primarily come to a finding that retraction is proper. We would also deal with the judgments relied on by the learned counsel which has a bearing on the issues and would then give our own view on questions posed by the Revenue. 15. In our view, the statements recorded under Section 132(4) have great evidentiary value and it cannot be discarded as in the instant case by the Tribunal in a summary or in a cryptic manner. Statements recorded under Section 132(4) cannot be discarded by simply observing that the assessee retracted the statements. One has to come to a definite finidng as to the manner in which retraction takes place. On perusal of the facts noticed hereinbefore, we have noticed that while the statements were recorded at the time of search on 09/11/1995 and onwards but retraction is almost afte....