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2023 (10) TMI 189
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.... behalf of the assessee, at the outset, submitted that originally orders for A. Y. 2004-05 and A. Y. 2005-06 were passed u/s 153C of the Income Tax Act. These Orders passed by the Ld. AO were quashed by the Ld. CIT(A) which gave jurisdiction to Ld. AO u/s 153A(2) of Act to redo the assessments, because these assessments were pending and got abated as on the date of recording the satisfaction for the purpose of initiation of proceedings u/s 153C of the Act and as per the said provisions u/s 153A(2), the Ld. AO got jurisdiction to proceed against the assessee u/s 143(3) if the Orders earlier passed u/s 153C are annulled. 3. The Ld. AR of the assessee further submitted that in the earlier round of proceedings u/s 153C of the Act, the issues arising from these appeals were decided in favour of the assessee. However, the department filed appeals before Hon'ble Delhi High Court and the matters were remitted back to the Hon'ble ITAT for re-adjudication as per the directions of Hon'ble Delhi High Court. These appeals were re-heard by Hon'ble ITAT as per the directions of Hon'ble Delhi High Court and again an order dated 14.12.2018 was passed by 'E' Bench of Delhi ITAT in a batch of appe....
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....ed from UPDA or its Secretary General Sh. R. K. Miglani belonged to the assessee, whereas in the present assessment proceedings it has been alleged that these documents pertain to assessee. It has been submitted that, this Tribunal has already rendered the findings on the nature of such documents and now it really does not matter whether the documents are held to be belonging to or pertaining to the assessee. Because all such documents have been rejected as unreliable and dumb documents by the Tribunal. 7. Mr. Pradeep Dinodia, submitted that in both round of proceedings undertaken at the level of ITAT were against orders passed u/s 153C of the Income Tax Act in the case of various distilleries who were members of UPDA and against whom identical proceedings had been initiated, because the documents found during search, were common and it has been categorically held by the ITAT that documents which came in the possession of the department neither belong to any of the assessee nor conveyed that any such alleged payments out of books of accounts have been made by any of the distilleries including the assessee to the UPDA. 8. At this stage, the Ld. AR took us through the various r....
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....im by the Investigation Wing. 52. As mentioned elsewhere, the Revenue has not brought anything on record to establish that the production figures reflected in the tables were forwarded by the appellants through a fax message or on its letter head. This was clear mandate of the Hon'ble High Court when it remitted the matter to the file of the Tribunal. 54. Another theory propounded by the Revenue is that every distillery had to contribute Rs.20/- per case and had thus contributed such a sum is entirely unsupported by any material. It is not known who had collected the alleged sum to have been contributed and what is the destination of such sum. In none of the documents, name of the payee, any public servant or politician appears. This itself establishes that the documents are dumb. 60. We are of the considered opinion that the allegation of the Revenue is entirely unjustified, unsupported by any document found from the possession or control of the appellants. It is well settled rule of law that burden of proof is on the alleger and not on the person against whom the allegation is made. In the present appeals, the burden is thus on the Revenue to establish ....
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....atement 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 not recorded at any stage during the assessment proceedings. The only conclusion which can be drawn about the nature and contents of the document is that it is a dumb document and on the basis of the entry of nothings or figure etc. in this document, it cannot be concluded that this represents the undisclosed income of the assessee." 65. The Hon'ble Supreme Court in the case of Andaman Timber Vs. CIT in Civil Appeal No. 4228 of 2006 has held as under: "According to us, not allowing the assessee to cross-examine the witnesses by the Adjudicating Authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity in as much as it amounted to violation of principles of natural justice because of....
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.... making the alleged onward payments through the UPDA. It has been submitted that eventually no discrepancy was found to exist and no unaccounted income or expenditure was found to have been incurred by the assessee. It has been submitted that under these circumstances making an addition u/s 69C of the Income Tax Act for the alleged illegal payments to any party is wholly unjustified. Assessment Year 2005-06 ITA No. 375/Del/2013 13. Apart from additions made u/s 69C of the Income Tax Act, on account of alleged unexplained expenditure incurred, another Ground of Appeal has been raised in A. Y. 2005-06 in which the AO has made the addition u/s 41 of the Income Tax Act towards the waiver of principal amount of loan which the assessee got from Morgan Stanley amounting to Rs. 5,37,12,480/-. The Counsel for the assessee submitted that assessee, being a listed company in the Stock Exchange had made a public offer for the issue of debentures (NCDs) for 58.01 Crores in F. Y. 1993-94. Such public offer, as per the documents, was meant only for capital expenditure wherein the assessee wanted to expand its existing manufacturing facilities as per the offer documents. M/s. Morgan Stanley h....
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....having been recorded for A. Y. 2006-07 u/s 153C of the Income Tax Act, the AO was not justified in passing the order u/s 143(3) of the Income Tax Act. The assessee has argued that the ground is pure legal ground and goes to the jurisdiction of making an assessment and should be decided as per the judgment of Hon'ble Delhi High Court in the case of RRJ Securities 380 ITR 612 and many other judgments on this legal proposition. 15. The Ld. DR, who represented the matter on behalf of the department, heavily relied upon the orders of Ld. AO as also the orders of Ld. CIT(A) wherein the additions made, against which the assessee has come up before us, have been confirmed. The Ld. DR submitted that the reliance on the order of Hon'ble ITAT dated 14.12.2018 in proceedings u/s 153C of the Act is misplaced because assessee never made these submissions before the Ld. CIT (A) and did not inform CIT(A) about such an order and all these submissions, according to Ld. DR, are fresh which don't flow from the order of either AO or Ld. CIT(A). 16. At this stage, against the query from the Bench, it was clarified that the orders of Ld. CIT(A) were passed in 2014 and in fact order for A. Y. 2006-0....
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....n made, have been made part of the order of ITAT at Pages 195 to 207. The Ld. DR has also not been able to point out any additional fact or evidence which could justify in taking a different view of the matter based on these documents or based on the statement of Sh. R. K. Miglani. 19. Thus, we are in tandem with the submissions of Ld. Counsel that whether the documents seized from the searched party are held as "belonging to" or "pertaining to", it does not materially effect the findings rendered by the Tribunal, in the batch of appeals decided on this issue and categorical findings have been rendered on the evidentiary value of the documents seized/impounded wherein it has been held by the Tribunal that such documents are dumb documents. Hence no mileage can be availed on this difference between "belonging to" or "pertaining to" as has been observed by AO/CIT(A) in their orders. 20. We therefore, are of the considered view that since the documents relied upon by the department or the statement of Sh. R. K. Miglani remains the same having no evidentiary value as per the factual findings recorded in the said order of ITAT and already relevant paras from the said order have al....