TaxTMI 
TaxTMI 
2023 (5) TMI 1095
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....ear 2013-14. 3. On the facts and the circumstances of the appellant's case and in not directing the AO to delete the addition of Rs.6,93,02,104/- which is not relating to the assessment year 2013-14. 4. On the facts and the circumstances of the appellant's case and in directing the AO to assess the unexplained cash credit in the year's the loan was received amounting to Rs.6,93,02,104/-. 5. The appellant craves leave to alter, amend, modify or substitute any ground or grounds and to add any new ground/(s) as may be necessary." 3. The first ground of appeal of the assessee is against the action of the Ld. CIT(A) in confirming the action of the AO making an addition of Rs.75,94,000/- on account of unexplained cash deposits. 4. Brief facts the AO noted on this issue was that the assessee who is an individual had filed his return of income on 28.09.2013 declaring total income to the tune of Rs.12,62,258/-. Later, the case of the assessee was selected for scrutiny and the AO notes that the assessee was the business manager and also proprietor of M/s. B. R Entertainment. The AO noted that as per the AIR data, the assesse....
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....ording to AO, the new explanation was an afterthought without any support evidences. So the AO did not accept the new-explanation given by assessee during the First Appellate Proceedings. The Ld. CIT(A) gave a copy of the remand report for assessee's reply. And pursuant to it, the assessee drew the attention of the Ld. CIT(A) to the bank-statement received from HDFC Bank account of M/s. B. R. Entertainment which reflected the cash withdrawal of Rs.97 Lakhs from (HDFC bank account no. 00192560003761 Richmond Road, Bangalore Branch) and cash deposited of Rs.70 Lakhs in the said bank account (same bank/HDFC) along with copy of the ledger account of HDFC Bank in the books of assessee. And the assessee offered balance cash of Rs.5,94,000/- as additional income for the year under consideration because he was unable to prove the source of it. The assessee also brought to the notice of the Ld. CIT(A) that Shri Indrajit Chatterjee who withdrew and deposited the cash was co-producer of the film 'Joe bhi karwalo' and to support this assertion brought to his notice the copies of media reports showing that Shri Indrajit Chatterjee was the co-producer of the film; and also invoices issued in the....
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....an as lead rolls]. Answering to question no. 8, the assessee gave bank accounts details to AO as under: - "I have current account in the name of M/s. BR Entertainment at HDFC bank Versova Branch Account No. 00192560003761 and saving account (2) In my personal name in the same HDFC Bank bearing account no. 00191000089838. I also have a joint account with my son Rishikesh Malviya bearing account no. 0019130013592." 6. And answer to question no. 9 regarding the source of the funds, the assessee had admitted to have taken a loan of (i) Rs.4.73 crores from Shri Indrajit Chatterjee and (ii) from Shri Ajay Bagdal (M/s. Rajvi Entertainment) of Rs.5 crores and (iii) loan from Shri Ramchandra about 50 Lakhs and (iii) from friends (Shri Shefani Rs.25 to 30 Lakhs). Answering to question no. 10, the assessee also brought to AO's notice that the loan confirmation from Shri Indrajit Chatterjee could not be given since he was in police/judicial custody (arrested by the Kolkata Police) for alleged fraud of fixed deposit involving M/s. West Bengal Infrastructure Development Finance Corporation. And also he furnished the loan confirmation from all the other parties from whom....
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....t out of Rs.75,94,000/- (deposited in HDFC Bank Account of M/s. BR Entertainment), Rs.75 Lakhs was deposited in the HDFC Branch situated at Richmond Road, Bangalore which was sourced out of the cash withdrawn from the same Branch and pursuant thereto, the Ld. CIT(A) called for remand report from the AO who was of the opinion that though there was total cash deposit of Rs.75,94,000/-, the assessee's contention that the cash deposit of Rs.70 Lakhs was made by Shri Indrajeet Chatterjee out of the cash withdrawn by him from the bank account of M/s. BR Entertainment itself has no supporting evidence to prove that the total cash deposited of Rs.70 Lakhs were out of cash withdrawn by Shri Indrajeet Chatterjee to the tune of Rs.75 Lakhs. According to AO other than, the Hotel bills of Shri Indrajeet Chatterjee, Railway ticket etc. and Media report about him co-producing the movie along with assessee the hindi Movie there was no other evidence. So he did not accept the ibid explanation of the assessee. In this respect, we note that an amount of Rs.97 Lakhs was withdrawn from the bank account of M/s. BR Entertainment. The details of withdrawal of cash and deposited of cash in the assessee's b....
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....money for hindi film production. And to buttress this fact the Ld. AR drew our attention to the page no. 35 of PB (report of Telegraph dated 17.04.2013). From the aforesaid facts, the Ld. AR of the assessee urged before us that the source of deposit of Rs.70 Lakhs in the bank account of the proprietary concern of M/s. BR Entertainment (where the assessee is a proprietor), was from cash withdrawal of Rs.97 Lakhs. And we note that Rs.70 Lakhs have been deposited between 06.02.2013 and 21.03.2013 when this fact of cash withdrawal as well as cash deposit was brought to the notice of the AO (during remand report proceedings), the AO did not accept the justification of the later deposit of Rs.70 Lakhs on the ground that the assessee could not prove that it was Shri Indrajeet Chatterjee who had withdrawn Rs.97 Lakhs and had deposited Rs. 70 Lakhs in the bank account of M/s. BR Entertainment. However, from a perusal of the bank statement of M/s. BR Entertainment for FY. 2012-13 which is placed at page no. 36 to 46 of PB from which it is noted that Rs. 97 Lakhs was withdrawn between 05.01.2013 to 04.10.2013 (which has been highlighted in the bank statement) and deposit of Rs.70 Lakhs has be....
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....total income of the assessee. Addition: Rs.11,85,62,104/- 11. Aggrieved, the assessee preferred an appeal before the Ld. CIT(A) wherein the assessee brought to the notice of Ld. CIT(A) that out of the total addition of Rs.11,85,62,104/- under section 68 of the Act, receipt of Rs.6,93,02,104 pertained to other years and not of this relevant AY. 2013-14. (ie. Rs.4 crores from Shri Ajay begdai was received between 24.10.2013 to 01.01.2014; Rs.50 Lakhs from Shri Ramchandra on 16 & 17 May 2013; Rs.25-30 Lakhs from Shefan on 30.12.2013 all pertaining to AY. 2014-15) and it was brought to the notice of Ld. CIT(A) that Rs.1,13,02,104/- was the opening balance as on 31.03.2013. Therefore, Ld. CIT(A) did not confirm the addition of Rs.6,93,02,104/- (after calling for remand report). So we are concerned about balance Rs.4,92,60,000/- (i.e. Rs.11.85,62,104/- - Rs.6,93,02,104/-). And the assessee brought to the notice of the Ld. CIT(A) in respect of addition of Rs.4,73,00,000/- the following facts given in the form of chart as under: - S. No. Name Amount CIN Income Tax Jurisdiction Address 1 JCC Holding Pvt. Ltd. (PAN-AAACJ7214N) 50,00,000 U65999WB1993PTC0....
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.... of PB as well as at page no. 36 to 46 of PB which shows the utilization of funds for the production of film. It is noted from the extract of the books of accounts of M/s. BR Entertainment specifies the expenditure incurred in production of the film and the same was also brought to the notice of the Ld. CIT(A) which is found placed at page no. 63 to 65 of the PB. And it is noted that the Ld. CIT(A) had forwarded the additional evidences to the AO for remand report who has given the report as under: - a) "With respect to Rs. 4,73,00,000/-- credited to the account of M/s. B.R. Entertainment from Shri Indrajit Chatterjee, the assessee, during appellate and remand proceedings, has submitted media report showing that Shri Indrajit Chatterjee was co--producer of the film alongwith details of expenses incurred in the production of film and bank book of M/s. B.R. Entertainment. The assessee has furnished copies of certain bills/vouchers exceeding Rs. 2,00,000/-- incurred in making of the film at Bangalore. Comments on additional evidence: In the copies of media reports furnished by the assessee, it is reported that Mr. Indrajit Chatterjee was co--producer of the ....
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....arding the identity & genuineness of the amount of Rs.4.73 crores which was credited in the books of account of M/s. BR Entertainment has added Rs.4,92,60,000/- out of total addition of Rs.11,85,62,104/- which was added by the AO (supra). The Ld. CIT(A) noted out of this total amount (Rs.11,85,62,104/-) Rs.1,32,62,104/- pertains to period prior to AY. 2013-14 i.e. opening amount; and Rs.5,75,00,000/- pertains to AY. 2014-15. And therefore he directed deletion of the same. Even though, the assessee brought to the notice that the three (3) corporate entities made an amount of Rs. 2 crores and Shri Ram Mohan Chatterjee director of Shri Rasraj Enclave Maker Pvt. Ltd. gave Rs.2.73 crores and had furnished the CIN/DIN no. as well as PAN number of Shri Ram Mohan Chatterjee along with their jurisdictional Income Tax Officers and their respective address, the Ld. CIT(A) had confirmed of Rs.4,92,60,000/-. We find that out of Rs.4.73 crores given by three (3) corporate entities/ Pvt. Ltd. companies namely (i) M/s. Madhuvan Dealers Pvt. Ltd. (Rs. 50 Lakhs) (ii) M/s. JCC Holding Pvt. Ltd. (Rs.50 Lakhs) and (iii) M/s. Rajraj Enclave Maker Pvt. Ltd. (Rs. 1 crores), we note from the evidences addu....
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....ertainment. Since these facts aforestated are relevant it needs to be verified, we set aside the impugned order of Ld. CIT(A) regarding addition of Rs.4.73 crores and direct him to call for remand report for verifying the aforesaid details and thereafter to pass order on this issue in accordance to law after hearing the assessee. 14. Regarding an amount of Rs.9,60,000/- the assessee submitted that this amount was transferred from the current account of the proprietorship concern of M/s. BR Entertainment to the saving bank account of the assessee i.e. 00089838 with HDFC bank account. Thus, according to the assessee, from the current account of his proprietorship concern M/s. BR Entertainment i.e. A/c 00192560003761 an amount of Rs.9.60 Lakhs has been transferred to his saving bank account which fact has been brought to the notice of the AO and in the remand report placed at page no. 174 of PB. We note that the AO in the remand report observed about this "with respect to unsecured loan of Rs.9,60,000/- from M/s. BR Entertainment, the assessee has furnished the copy of ledger account in the books of assessee and......" 15. And regarding Rs.10 Lakhs, the AO noted that the unsecur....
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....rect deletion if not done by AO himself [while giving effect to Ld CIT(A)'s impugned order]. 17. Coming to ground no. 4 which is against the action of the Ld. CIT(A) directing the AO to assess the unexplained cash credit in the year in which it was received under Section 150(1) of the Act. According to the Ld. AR, the direction of the Ld. CIT(A) to the AO to assess the income of the assessee pertaining to the year in which the money was received could not have been done by the Ld. CIT(A) and for that he relied on the following decisions as under:- (a) Mrs. R. H. Dave Vs. CIT [140 ITR 1035 (Cal)] (b) ITO Vs. Murlidhar Bhagwan Das [52 ITR 335 (SC)] (c) N. Kt Sivalingam Chettiar Vs. CIT [66 ITR 586 (SC)] (d) Bakshish Singh Vs. ITO [93 ITR 178 (SC)] (e) ITO Vs. Sri Biswajit Chatterjee in ITA. No.565/Kol/2013 dated 10.11.2017 (f) Shri Sanjay Thakur Vs. DCIT in ITA No. 3785/Del/2015 dated 12.07.2018. 18. Per contra, the Ld. DR vehemently supported the order of the Ld. CIT(A) and contended that Explanation to Section 251 of the Act as well as section 150(1) of the Act gave power to Ld. CIT(A) to record his findings/direction nece....
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....ions." 21. The CBDT in its Circular has also clarified that the power of the appellate commissioner does not include the power to set aside the assessment. 22. Now let us look at Section 150 of the Act which reads as under: - "150. (1) Notwithstanding anything contained in section-149, the notice under section-148 may be issued at any time for the purpose of making an assessment or reassessment or re-computation in consequence of or to give effect to any finding or direction contained in an order passed by any authority in any proceeding under this Act by way of appeal, reference or revision. (2) The provisions of sub-section (1) shall not apply in any case where any such assessment, reassessment or re-computation as is referred to in that sub-section relates to an assessment year in respect of which an assessment, reassessment or re-computation could not have been made at the time the order which was the subject-matter of the appeal, reference or revision, as the case may be, was made by reason of any other provision limiting the time within which any action for assessment, reassessment or re-computation may be taken." 23. A bare reading of Section 150(1....
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....ion was: "Whether, on the facts and in the circumstances of the case, the Tribunal having held that the Appellate Assistant Commissioner had no jurisdiction to direct the Income-tax Officer to bring the amount to tax in an assessment year not involved in the appeal before him, was justified in law in refusing to delete such direction given by the Appellate Assistant Commissioner ?" 26. On the above question, the Hon'ble Calcutta High Court gave the following findings: "The Tribunal, as we have mentioned before, came to a categorical finding that the AAC had no jurisdiction to direct the ITO to bring the amount to tax in the correct assessment year, for, he could only decide the matter relating to the assessment year before him and not otherwise. This view of the Tribunal is corroborated by several decisions of the Supreme Court We may refer to the latest decision of the Supreme Court in the case of Rajinder Nath v. CIT , where the Supreme Court categorically observed that the expressions "finding" and "direction", in Section 153(3) were limited in meaning. The Supreme Court observed that a finding given in an appeal, revision or reference, arising out of as....