TaxTMI 
TaxTMI 
2021 (5) TMI 77
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....nd University of Delhi Vs. Union of India, Civil Appeal No. 9488 & 9489/2019 dated 17 December, 2019, hold that such a delay; supported by cogent reasons, deserves to be condoned so as to make way for the cause of substantial justice. We accordingly hold that assessee's impugned delay of 3 days is neither intentional nor deliberate but due to the circumstances beyond its control. The same stands condoned. Case is now taken up for adjudication on merits. 2. The assessee has raised the following grounds in his appeal: "1. On the facts and the circumstances of the case, the appellate order passed by the Ld. CIT(A) on 04-09-2019 is erroneous to the extent the order is prejudicial to the interest of the appellant. 2. On the facts and in the circumstances of the case, the Ld. CIT (A) has grossly erred in upholding the invocation of provisions of sec 153A of the LT. Act by the Assessing Officer, without there being any incriminating material found during the course of search at the premises. 3. On the facts and in the circumstances of the case, Ld. CIT(A) has erred in upholding the assessment order which was passed by the AO ul s 153A of the Act., without obt....
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....deposits of Rs. 2,39,00,000/- to the opening cash balance and withdrawals made from his bank account. 13. The Ld. CIT(A) erred in not adjudicating the grounds on addition of Rs. 2,39,00,000 was based on the bank statements which is not an incriminating material for making addition u/s 68 of the Act in the search assessment proceedings u/ s 153A of the Act. 14. The appellant craves leave for addition/ revision/ deletion/ rescinding of any ground of appeal either before or at the time of hearing of the appeal." 2.1 The revenue has raised the following Cross Objections in its appeal: "1. The order of the Ld cIT(A) is erroneous in law and on facts of the case. 2. The Ld. CIT(A) erred in deleting the addition of Rs. 2,39,OO,OOO/- made towards unexplained cash deposits on the ground that the additional income of Rs. 26,OO,OO,OOO/- offered to tax is more than the cash deposits, ignoring the fact that the assessee did not furnish the details of the additional income. 3. The Ld. CIT(A) erred in deleting the addition of Rs. 2,39,00,OOO/- by giving credit for the additional income of Rs. 26,00,000/- when the assessee had filed an additional grou....
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....bsence of any such details forthcoming from the assessee, no benefit can be given to the assessee of the above disclosed income in the return u/s 153A. 3.3 The AO observed that during the year, the assessee had deposited an amount of Rs. 2,39,00,000/- in his Axis Bank Account No. 02710100446525 during the demonetization period form 09/11/2016 to 31/12/2016. Further, the AO observed that during the course of search and seizure operation, assessee had submitted that he offered income of Rs. 4,70,28,830/- for the AY 2012-13 and paid tax of Rs. 2.10 crores for the same and submitted that the balance cash of Rs. 2.60 crore was stated to have been held as cash on hand since 2013. The details of cash deposits during the demonetization period is as under: Particulars Amount in Rs. 15/11/2016 30,00,000 16/11/2016 30,00,000 17/11/2016 30,00,000 18/11/2016 30,00,000 19/11/2016 1,19,00,000 Total 2,39,00,000 3.4 The AO observed from the cash book submitted by the assessee that for AY 2015-16, there was a cash balance of Rs. 5,29,36,571/- as on March, 2015 whereas in the return of income filed by the assessee cash on hand was shown of Rs. 1,53,795/....
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.....09.2018 admitting income of Rs. 26,31,52,080/- which included the income of Rs. 26,00,00,000/- admitted during the course of Search. Now, during the course of appellate proceedings, the appellant by way of Additional grounds filed on 11.08.2020 seeks withdrawal of declaration made. The appellant himself has filed Return of Income after retracting the declaration made ujs.132(4) of I.T Act by way of affidavit. The appellant now raised the ground for accepting "Revised Computation of Income' allegedly filed during the course of assessment proceedings. The appellant has not adduced any reasons for 'Revising the Computation'. The Return of Income was filed way after the Search was concluded and the appellant has verified his records as mentioned in the affidavit. In view of the above, the contentions of the appellant are without any acceptable reasons. The conduct of the appellant has been 'inconsistent' throughout. As the appellant has not come out with any reason for filing alleged 'Revised Computation', the grounds raised by the appellant are not acceptable and the same are rejected." 5. Aggrieved by the order of CIT(A) the assessee is in appeal befor....
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....me fact can also be evidenced from the Assessment order, extract of which is as under: 3.0 During the course of search and seizure operation, assessee filed an affidavit admitting additional income of Rs. 26,00,00,000/- without filing any details of head of income/assessment year or whose hands the additional is admitted. However, in the ROI filed in response to notice u/s 153A for AY 2017-18, the assessee had admitted the same as income from other sources in the individual ROI. During the course of assessment proceedings assessee was asked to furnish the nature and purpose of additional income admitted. However, assessee did not file any information in this regard. In absence of any such details forthcoming from the assessee, no benefit can be given to the assessee of the above disclosed income in the return u/s 153A against any further addition being made as per the subsequent paras. It is very clear that the AO himself has written in the order that declaration made has not mentioned anything about assessment year, assessee name and head of income declared. In those circumstances, in accordance with the CBDT circular in F.No. 286/2/2003-IT(INV.II) Dated....
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....S Khader Khan Son wherein Supreme Court Held that: "Section 133A of the Income Act, 1961 - Survey - Whether Section 133A does not empower any ITO to examine any person on oath; so statement recorded under section 133A has no evidentiary value and any admission made during such statement cannot be made basis of addition - Held, yes [In favour of assessee)" 5. Only real income to be taxed In this regard, it is submitted that only real income should be brought to tax. Once the income has not accrued to the assessee, no tax can be charged on the notional income. In this regard, reliance is placed on * Hon'ble Supreme Court of India in case of Lok Housing Construction Ltd in [2016] 70 taxmann.com 2 (SC) "Where assessee-company filed revised return claiming that income declared in original return in respect of sale of land/FSI stood withdrawn due to cancellation of sale agreements and High Court by impugned order held that no hypothetical income of assessee in respect of said sale could have been brought to tax, SLP filed was to be granted" * Hon'ble Hyderabad ITAT in case of BS Limited in ITA No. 2187/Hyd/2017 "18.2 ....
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.... pertinent to consider that assessee has filed its return of income only for an amount of Rs, 31,62,080 on 21.02.2018. Pursuant to the search proceedings, all the bank accounts, FD and other assets were attached by the Department. After the search proceeding, assessee was not well and hospitalized for some time. Since, all the bank accounts of assessee were attached; the assessee paid an amount of Rs. 5 crores on 31.03.2018. Only after which, lifting of attachment was done on 27.04.2018. Subsequently, assessee has retracted the admissions of addition income of Rs. 26 crores on 10.04.2018 by way of affidavit. The above facts clearly brings out the fact that even after search proceedings, assessee has only admitted an amount of Rs. 31,62,080 and has not disclosed an amount of Rs. 26 crores. We would like to further submit that, if any confession of income made during the search and seizure operation under the influence of officers, without any corroborative and credible evidence and later withdrawn by the assessee in his return of income filed then such confession made is not of any use. Without placing any reliance on the material evidence gathered during the searc....
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....true and correct. 9. Addition of Rs. 2,39,00,000 towards unexplained income In this regard, it is submitted that the assessee has admitted Rs. 4.7 Cr as additional income for AY 2012-13 and paid tax of Rs. 2.1 Cr and kept remaining cash on hand. It is to submit that the assessee has cash balance of 2.6 Cr since from the A Y 2012-13 and in mean while he deposited Rs. 1.32 Cr during the month of May in FY 2012 from the available balances of Rs. 2.6 Cr. Further he withdrawn the amount from his bank account and he deposited the following amounts in the bank account of the assessee. It is to submit that the cash deposits of Rs. 2,39,00,000/- in the bank account are from the opening balances and additional income offered. The same fact can be evidenced from opening cash balance of Rs. 4,72,52,000 as on 01.04.2016. Enclosed in Page 34 of Paper book. In this regard, reliance is placed on Chennai IT AT ruling in case of N. Sasikala in 151 TAXMAN53 Further, it is humbly submitted that the revenue has raised this ground against the deletion of the addition of Rs. 2.39 crores. In support of the ground, the Revenuer has relied on the decision of Andhra Prades....
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.... 16. M/s RPK Estates (India) Pvt. Ltd., ITA No. 1025/Hyd/2015 17. Divya Jyothi Steels Ltd., ITA No. 1176 & 29/Hyd/Hyd/2016 18. Concord Drugs Ltd., ITA No. 1901 to 1903/hyd/2017 19. KSP Shanmugavel Nadar, [1987] 30 Taxman 133 (Mad.) 20. N. Balakrishnan Vs. M. Krishnamurthy, Judgment dated 03/09/1998 (SC) 21. Collector Land Acquisition Vs. Mst. Katiji, 1987 AIR 1353 22. M/s BS Ltd., ITA No. 2187/Hyd/2017 23. Shri P. Madhusudan Reddy, ITA Nos. 1373 to 1375/Hyd/12 24. Maruti Securities Ltd., 468/Hyd/2009 25. H.M. Kashiparekh & Co Ltd., 379 ITR 706 (Bom.) 26. Hind Construction Ltd., 83 ITR 211 27. Sanjeev Woolen Mills, 149 Taxman 431 28. Lok Housing & Construction ltd., 58 taxmann.com 179. (Bom) 29. Lok Housing & Construction ltd., 27 taxmann.com 15 (Mumbai ITAT) 30. Lok Housing & Construction ltd., 70 taxmann.com 2 (SC) 31. Shoorji Vallabhdas & CO., [1962] 46 ITR 144 (SC) 32. Excel Industries Ltd., 358 ITR 295 33. Pruthvi Brokers & Shareholders, [2012] 23 Taxmann.com 23 34. Indian Express (Madurai) Pvt. Ltd., 140 ITR 705....
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....etraction and the revised computation filed before CIT(A) without any basis. 5. It is humbly submitted that while the AR relied on the letter dated 27.4.2018 lifting attachment u/s 281B on mutual fund investments worth Rs. 8 Cr(available in the Paper Book dated 15.3.2021 at page 35), the return of income declaring the unaccounted income was filed much later on 25.9.2018 and again on 21.11.2019, which clearly shows that the allegation of force is only an argument of convenience to gain unfair advantage. 6. It is also submitted that the assessee certified that copy of cash ledger at page numbers 12 to 18 of paper book dated 18.2.2021 and revised computation available at pages 21 to 24 of the same paper book were filed before AO but none of them were filed before the AO. Also the return of income was not contested before the AO. It is humbly submitted that there is wrong certification regarding above documents which were not filed before the AO. 7. It is humbly submitted that the AR relied on several decisions which are on the points of forcible admission and confession without any basis. It is humbly submitted that none of the decisions are applicable to th....
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....ment of Rs. 85,07,500j- for land purchase as admitted by the Jayanta Kumar Dutta. The assessee could not give any satisfactory explanation. - At Question No.35, details of amount brought into M/s SV Multi Logitech Pvt Ltd to the tune of 22.855 Cr during FY 2016-17 were shown to the assessee. Assessee could not give any satisfactory explanation. - At Question Nos.46 to 48, details of 13 shell companies used to bring-in money into the companies managed by the assessee were shown to the assessee and it was told to the assessee that said the companies do not exist at the given addresses. The assessee could not give any satisfactory explanation. - At Question No.49, details of Rs. 1.99 Cr credited to the account of assessee on 1.12.2016 was shown to the assessee. The assessee could not give any satisfactory explanation. - At Question No.61, the admission of Sri Amit Bansal stating that he does not know the source of deposits in the a/c of M/s Ankaa Realtors and the entire transactions were done as per the directions of Ajaz Farooqi. Sri Ambit Bansal stated that wherever the assessee wanted him to sign, he has signed and only the assessee can explain t....
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....actory explanation. - At Question No.92, it was stated that in spite of several opportunities, Sri Amit Bansal has not offered any explanation with regard to source of cash deposits in the five firms. Assessee could not give any satisfactory explanation. 9. It is humbly submitted that the assessee has disclosed an amount of Rs. 26 Cr vide statement recorded uj s 132(4) only to cover up the unaccounted transactions wherein cash deposits from unknown sources brought into the concerns of the assessee and the same were in tum invested in the companies and firms of the assessee. With mounting evidence on record, the claim of the assessee that there is no incriminating material and there is no basis for return of income falls flat. The retraction before the CIT(A) is without any basis whereas there is mounting evidence for the unaccounted transactions. 10. It is humbly submitted that as per the scheme of the Act, when the assessee files return of income pays tax on self assessment, there is no provision in the Act to claim that the return of income does not exist or the return of income is bad in law. The return of income is filed as per the statutory complianc....
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....round by observing as under: "5.1 I have considered the assessment order and submissions of the appellant. A Search was conducted in case of the appellant on 05.07.2017. The appellant filed original Return of Income on 06.02.2018 returning income of Rs. 31,52,080/- Notice u/s.153A was issued on 19.02.2018 and Return of Income in response to notice u/s153A was filed on 25.09.2018 admitting income of Rs. 26,31,52,080/-. The appellant included Rs. 26,OO,OO,OOO/- 1which is additional income admitted during the course of Search. Since this is not a concluded assessment, the contentions raised by the appellant as to 'absence of incriminating material' are not relevant to facts of the case. Accordingly, the grounds raised is rejected." We do not find any reason to interfere with the order of the CIT(A) and upholding the same, we dismiss ground No. 2 & 3 raised by the assessee on this issue. 8.3 As regards ground Nos. 4 to 11 regarding the affidavit filed by the assessee withdrawing the admission additional income of Rs. 26 crores made u/s 132(4) of the Act, the assessee retracted the statement given u/s 132(4) by way of affidavit on 10/04/2018 citing the reason that....
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....ration made has not mentioned anything about assessment year, assessee name and head of income declared. In those circumstances, in accordance with the CBDT circular in F.No. 286/2/2003-IT(INV.II) Dated 10.03.2003 and F.No. 286/98/2013-IT (Inv.!l) dated 18th December, 2014, no addition is warranted. 8.7 Further, since the assessee has admitted in ROI, the AO made addition of Rs. 26 crores while finalizing the assessment which is erroneous. The admission made by assessee is not a conclusive evidence to make addition. Mere statement of assessee is not the assessment of evidentiary value of the evidence when such statement is self-incriminating. The HIGH COURT OF TELANGANA AND ANDHRA PRADESH in the case of Gajjam Chinna Yellappa in 59 taxmann.com 69 held as under: "13....... We find that the appellate authority and the Tribunal did not apply the correct parameters, while adjudicating the appeals filed before them. On the undisputed facts of the case, there was absolutely no basis for the Assessing Officer to fasten the liability upon the appellants. Our conclusion find support from the Circular dated March 10,2003, issued by the Central Board of Direct Taxes, which took ex....
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....o tax, SLP filed was to be granted" 8.13 The Hon'ble Hyderabad ITAT in case of BS Limited in ITA No. 2187/Hyd/2017, held as under: "18.2 By considering the facts on record, we notice that this addition of Rs. 60 crores by AO is not real income or additional income. Assessee withdrew the additional income declared by it during search proceedings. Since assessee has increased the turnover in order to declare the additional income and the same was withdrawn subsequently. Assessee should have modified the turnover and filed the return of income, but, assessee chose to keep the turnover intact as per P&L and tried to reduce the profit by showing this additional turnover as other deduction. In our considered view, it is not additional or real income and also not a deduction in real sense. Hence, the same is deleted. Accordingly ground raised y the assessee is allowed. " 8.14 The ld. AR of the assessee submitted before us that under immense pressure the assessee has agreed the admission of income of Rs. 26 crores by way of affidavit. Subsequently, assessee has also submitted the revised computation of income declaring the correct income of the assessee at Rs. 31,62,080,....