TaxTMI 
TaxTMI 
2021 (4) TMI 60
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....ged in the business of manufacture and sale of country liquor. The search under section 132 of the Income Tax Act, 1961 (hereinafter called "the Act") was conducted on 14.02.2006 on the premises of M/s. Radico Khaitan and Shri R.K. Miglani, Secretary General of M/s Uttar Pradesh Distilleries Association (UPDA). During the search, a large number of documents alleged to be belonging to several members of the distilleries of Uttar Pradesh Distillery Association were seized from the residence of Shri R.K. Miglani and office of the UPDA. Statement of Shri R.K. Miglani was recorded u/s 132(4) of the Act. The Assessing Officer having jurisdiction over the case of Shri R.K. Miglani recorded the satisfaction as provided in the provisions of Section 153C of the Act and handed over the documents so seized belonging to the Assessee to the Assessing Officer (AO) having jurisdiction over the case of the Assessee. Based on the material recovered during the course of search and also relying on the statement of Shri R.K. Miglani, the Income Tax Department invoked the provisions of section 153C of the Act and issued notice to the Assessee. The Assessee filed return of Income on 14.05.2007. Dur....
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....ner of Income Tax Appeals has erred in confirming the addition of Rs. 1,25,31,800.00 made by the Learned AO on account of alleged expenditure incurred by the assessee from unexplained sources. 6. The assessee reserves its right to add, amend, alter or delete any ground of appeal at the time of hearing. 2.2 The grounds of two appeals i.e. ITA No. 4193/Del/2010 & ITA No. 4194/Del/2010 are the identical except for ground No. 5 which are as under:- ITA No. 4193/Del/ 2010 - Asstt. Year 2004-05: 5. The Learned Commissioner of Income Tax Appeals has erred in confirming the addition of Rs. 1,33,67,800.00 made by the Learned AO on account of alleged expenditure incurred by the assessee from unexplained sources. ITA No. 4194/Del/2010 - Asstt. Year 2005-06: 5. The Learned Commissioner of Income Tax Appeals has erred in confirming the addition of Rs. 7011500.00 made by the Learned AO on account of alleged expenditure incurred by the assessee from unexplained sources. 2.3 The Grounds of appeal of ITA No. 1713/Del/2010 for the Asstt. Year 2006 07 are as under:- 1. The Learned Commissioner of Income Tax Appeals has erred in law and facts....
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....terest of justice and equity. 4.0 On the contrary, the learned DR strongly opposed the prayer to condone delay put forth by learned AR. She submitted that the petition filed by the assessee as well as affidavit filed is not supported by any other evidence. 5.0 We have heard the rival contentions on this preliminary issue and perused the record. We find that the issue contested in the appeal is a recurring issue and hence no malafide can be imputed on the Assessee in not filing the appeal in time. We are of the view that there was sufficient cause for the Assessee in filing the appeals belatedly. Accordingly, we condone the delay in filing the present appeal and admit the same. 6.0 Shri Salil Kapoor, learned counsel appearing on behalf of Assessee, at the outset, relied upon the order passed Coordinate Bench of this Tribunal in the case of Mohan Meakin Ltd. vs. Asstt. Commissioner of Income Tax in ITA No. 3787/Del/2008 vide order dated 01.08.2017 and also the on order of the Coordinate Bench in the case of Lords Distillery Ltd. vs. DCIT in ITA No. 2576/Del/2010 vide dated 14.12.2018 to submit that similar additions were made by the Assessing Officer in the case of the asses....
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....ative supported the orders of the authorities below. The Ld. Department representative argued that the Ld. CIT, New Delhi, vide order dated 16.11.2009 passed order u/s 12AA of Act, had cancelled the registration granted to the UPDA and that the cancellation of the registration u/s 12AA was upheld by ITAT vide order in ITA No. 118/Del/2010 dated 14.02.2017. It was further submitted that the appeal of M/s UPDA against the above ITAT order was dismissed by the Hon'ble High Court vide order dated 23.10.2017 and further, the SLP against the same was dismissed by the Hon'ble Apex court on 13.04.2018. The Ld. Departmental Representative placed strong reliance upon the statement on oath of Shri R.K. Miglani recorded u/s 132(4) of the Act on the date of search. It was reiterated that the ITAT has upheld the cancellation of registration u/s 12AA and has also endorsed the following of findings of the Assessing Officer wherein the Tribunal has upheld the validity of statement on oath of Shri RK Miglani recorded u/s 132(4) on 14.02.2006 despite his retraction vide letter dated 03.03.2008 and despite no cross examination of Shri RK Miglani by the assessee. 8.0 We have heard the rival subm....
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....is not synonymous to the expression "pertaining to" or "relating to". 48. This has prompted the Legislature to bring amendment to section 153C of the Act vide Finance Bill, 2015 wherein in clause (b) to section 153C, "belong to" has been replaced by "relates to". But the Legislature, in its wisdom, has given effect to this amendment w.e.f 01.06.2015. Therefore, the same cannot be applied to the assessment years under consideration. 49. Moreover, the Hon'ble Supreme Court in the case of Chuharmal Vs. CIT 172 ITR 250 has held that possession is proof of ownership and the seized documents were found from the possession of Shri R.K. Miglani. 50. As mentioned elsewhere, none of the documents referred to by the Assessing Officer belong to the captioned assessees nor it has been identified that which documents belong to which captioned assessees. In our considered opinion, the Assessing Officer has exceeded in his jurisdiction to initiate the proceedings u/s 153C of the Act. 51. The ld. DR has heavily relied upon the judgment of the Hon'ble Delhi High Court in the case of Super Malls Pvt Ltd 393 ITR 557. In our considered view, this judgment has....
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.... There is no independent evidence that the captioned assessees have contributed any sum except notings in the seized documents, which have been conclusively held hereinabove do not belong to the captioned assessees." .................. 64. The contention of the ld. DR that since Shri R.K. Miglani was related to the member distilleries of UPDA, therefore it was not necessary to allow cross examination is not acceptable. The Hon'ble High Court of Delhi in the case of Shri S.N. Aggarwal 293 ITR 43 has held as under: "11. In the present case the Assessing Officer has placed reliance on the statement of Smt. Sarla Aggarwal, daughter of the assessed while arriving at the conclusion, that the entries belong to the transactions of the assessed. This statement made by Smt. Sarla Gupta, cannot be said to be relevant or admissible evidence against the assessed, since the assessed was not given any opportunity to cross-examine her and even from the statement, no conclusion can be drawn that the entries made on the relevant page belongs to the assessed and represents his undisclosed income. It is also an admitted fact that the statement of the assessed was no....
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....y, bullion, jewellery or other valuable article or thing belong or belongs to such person; (ii) that the contents of such books of account and other documents are true; and (iii) that the signature and every other part of such books of account and other documents which purport to be in the handwriting of any particular person or which may reasonably be assumed to have been signed by, or to be in the handwriting of, any particular person, are in that person' s handwriting, and in the case of a document stamped, executed or attested, that it was duly stamped and executed or attested by the person by whom it purports to have been so executed or attested.] Section 292C [l)] Where any books of account, other documents, money, bullion, jewellery or other valuable article or thing are or is found in the possession ol of any person in the course of a search under section 132 20[or survey section 133A], it may, in any proceeding under this Act, be presumed- 1 i) that such books of account, other documents, money, bullion, jewellery or other valuable article or thing belong or belongs to such person; ii) that the contents of such book....
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....e accepted what was returned by Shri R.K. Miglani and on the strength of his statement that the documents seized from his premises belong to distilleries, the additions have been made as unexplained expenditure/contribution to UPDA." 71. It is well settled that only the person competent to give evidence on the truthfulness of the contents of the document is writer thereof. So, unless and until the contents of the documents are proved against a person, the possession of the document or hand writing of that person on such document by itself cannot prove the contents of the document. 72. Considering the facts of the dispute in totality, we are of the opinion that the assessment framed u/s 153C of the Act is in gross violation of the principles of natural justice and deserve to be tagged as nullity. " 8.1 We have gone through the order passed by the Coordinate Bench in detail. We find that the Assessee herein had raised a specific request before the Assessing Officer requesting cross-examination of Shri RK Miglani (Pg. 5 of the Assessment Order). However, despite that, the Assessee was not given an opportunity to cross examine Shri R.K. Miglani, and further, the additions h....