TaxTMI 
TaxTMI 
2024 (9) TMI 276
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....) M/s. Radha Madhav Developers 23/03/2021 2011-12 5] 48/NAG/2021 (By Revenue) 6] CO No.4/NAG/2021 (by Assessee) M/s. Radha Madhav Developers 23/03/2021 2012-13 7] 49/NAG/2021 (By Revenue) 8] CO No.5/NAG/2023 (by Revenue) M/s. Radha Madhav Developers 23/03/2021 2013-14 9] 140/NAG/2021 M/s. Radha Madhav Developers 06/09/2021 2018-19 2. The department has raised following grounds of appeal:- [1] ITA No. 26/NAG/2020 (A.Y. 2014-15) Tax Effect 1. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition of Rs. 6,38,21,488/- made by the AO towards difference in cost of investment in the property based on Department Valuer's Report. Rs. 4,21,21,617/- 2. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition of Rs. 6,38,21,488/- made by the AO as there had been no rejection of books of account u/s 145 failing to appreciate that by the Finance (No.2) Act, 2014 w.e.f 01.10.2014 the amendment in section 142A enunciates that the AO may make a reference to the valuation Officer whether or not he is satisfied about the correctness or completeness of the account of t....
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....the total income of the six assessment years? 11. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in holding that the scope of section 153A is limited to assessing only search related income, thereby denying Revenue the opportunity of taxing other escaped income that comes to the notice of the AO? 12. On the facts and circumstances of the case and in law, the Ld. CIT(A) failed to appreciate that assessing officer while computing income u/s 153A is well within his powers to compute taxable income on the basis of material on record even though such material was not found during the course of search operation in view of section 15881 w.e.f.01/06/2003. 13. On the facts and the circumstances of the case and in law, the Ld. CITIA) failed to appreciate that the AO while computing income u/s 153A is well within his powers to compute taxable income on the basis of material/information received on record even though such material or information received is not reliable to the material found during the course of search in view of section 158BI w.e.f. 01/06/2003. 14. On the facts and circumstances of the case and in law, the Ld. C....
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.... by the assessee and his family members. 20 On the facts and circumstances of the case and in law, the Ld. CIT(A) failed to appreciate that the credit entries in form of share premium, loans were received from shell companies who are part of financial manoeuvring to legitimise illicit money and evade taxes and lack of genuineness in actual operations of shell companies. 21. On the facts and circumstances of the case and in law, the Ld. CITIA) has deleted the addition by superficially assessing the genuineness of transactions by accepting the documents sighted before him on face value ignoring the surrounding circumstances, preponderance of human probabilities and ground realities? 22. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition of Rs. 6,00,00,000/- holding that the amount is received through banking channel by incorrectly distinguishing the ratio of decision of Hon'ble Supreme Court in the case of P. Mohan Kala and Ors. 23 On the facts and circumstances of the case and in law, the Ld. CIT(A) failed to appreciate that the true nature of transactions have to be ascertained in the light of....
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....s. 1,38,48,953/- made by the AO towards difference in cost of investment in the property based on Department Valuer's Report. Rs. 47,07,260/- Total Tax Effect Rs,47,07,260/- (5) ITA NO. 49/NAG/2021 (A.Y. 2013-14) Tax Effect 1. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition of Rs. 8,20,24,434/- made by the AO towards difference in cost of investment in the property based on Department Valuer's Report. Rs. 3,65,17,247/- Total Tax Effect Rs. 3,65,17,247 /- (6) ITA NO. 140/NAG/2021 (A.Y. 2018-19) Tax Effect 1. Addition u/s 68 for Rs.1.65 crores Rs. 55,00,000/- Total Tax Effect Rs. 55,00,000/- 2. The order u/s 263 of the Income Tax Act, 1961, PCIT(C), dated 8/10/2018 for the Assessment Years 2011-12, 2012-13 & 2013-14 is reproduced below: "ORDER U/S 263 OF INCOME TAX ACT, 1961 Original return of income for A.Y. 2011-12, 2012-13 & 2013-14 was filed on 20.09.2011, 30.07.2012, 11,09.2014 showing total income of Rs 4,64,83,340/-, 'Nil', Rs 27,95,19,170/- respectively. The assessment under Section 143(3) r.w.s. 153C for A.Y. 2011-12 & u/s 143(3) for A.Y. 2012-13 was completed on 30....
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.... (DVO) to find out the total cost of project and the expenditure incurred by the assessee for development for project "Vrindavan". The District Valuation Officer (DVO), Bhopal has submitted his report dated 22.12.2016 which is given in brief as under:- F.Y. A.Y. Cost of Investment in the Project declared by Assessee (Rs.) Assessed by Valuation Cell (Rs.) Difference in amount (Rs.) 2010-11 2011-12 4,45,86,000/- 5,25,45,132/- 79,59,132/- 2011-12 2012-13 7,75,80,000/- 9,14,28,953/- 1,38,48,953/- 2-12-13 2013-14 45,94,90,000/- 54,15,14,434/- 8,20,24,434/- 4. The summery of the cases before the ITAT is as under: S. No ITA AY Appeal by Asst. Order Abated/ Unabated Additions CIT (A) Orde 1. 47/NAG/2021 2011-12 Department 143(3) r.w.s. 263 (153A Assessment) Unabated 1.Sec.69C - Investment based on DVO Report Amount Rs. 75,59,132/- Common CIT (A) Order 23.3.2021 2. 48/NAG/2021 2012-13 Department 143(3) r.w.s. 263 (153A Assessment) Unabated 1.Sec.69C - Investment based on DVO Report Amount Rs. 1,38,48,953/- 3. 49/NAG/2021 2013-14 Department 143(3) r.w.s. 263 (153A Assessment) Abated 1.Sec.69C - Investment based on DVO Report Amount Rs. 8....
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....ld that, when the AO has obtained the DVO report then the same is binding.' However, that decision was given in the context of addition made under section 50C and DVO's report obtained for determining the fair market value of the property for the purpose of section 50C of the Act. The decision given by the H'ble Allahabad High Court cannot, by any stretch of imagination, be applied in this case. In the assessment order, the AO has emphasised that provisions of section 142A(2) of the Act have been amended by the Finance Act, 2014, and as per the amended provisions, the AO can make a reference to the DVO whether or not he is satisfied with the correctness or completeness of the accounts of the assessee. Even though the amended provisions allow the AO to make a reference to the DVO without rejection of the books of account, this power cannot be used arbitrarily and indiscriminately. Before the AQ makes a reference to the DVO, he must have a reason to believe based on some credible evidence that the actual investment made by the assessee is in excess of what is shown in the books of accounts. 6. As regards the assessment year 2011-12 and 2012-13 are concerned, it is clea....
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....en the view that no addition can be made in respect of completed/unabated assessments in absence of any incriminating material. The lead judgment is by the Delhi High Court in the case of Kabul Chawla (supra), which has been subsequently followed and approved by the other High Courts, referred to here in above. One another lead judgment on the issue is the decision of the Gujarat High Court in the case of Saumya Construction (supra), which has been followed by the Gujarat High Court in the subsequent decisions, referred to here in above. Only the Allahabad High Court in the case of Pr. Commissioner of Income Tax v. Mehndipur Balaji, 2022 SCC On Line All 444: (2022) 447 ITR 517 has taken a contrary view. 7.1 In the case of Kabul Chawla (supra), the Delhi High Court, while considering the very issue and on interpretation of Section 153A of the Act, 1961, has summarised the legal position as under: Summary of the legal position 38. On a conspectus of Section 153A(1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is as under: i. Once a search takes place under Section 132 of the ....
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....eafter in the case of Saumya Construction (supra), the Gujarat High Court, while referring the decision of the Delhi High Court in the case of Kabul Chawla (supra) and after considering the entire scheme of block assessment under Section 153A of the Act, 1961, had held that in case of completed assessment/unabated assessment, in absence of any incriminating material, no additional can be made by the AO and the AO has no jurisdiction to re-open the completed assessment. In paragraphs 15 & 16, it is held as under: "15. On a plain reading of section 153A of the Act, it is evident that the trigger point for exercise of powers thereunder is a search under section 132 or a requisition under section 132A of the Act. Once a search or requisition is made, a mandate is cast upon the Assessing Officer to issue notice under section 153A of the Act to the person requiring him to furnish the return of income in respect of each assessment year falling within six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made and assess or reassess the same. Since the assessment under section 153A of the Act is lin....
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.... clear, viz, to provide for assessment in case of search and requisition. When, the very purpose of the provision is to make assessment in case of search or requisition, it goes without saying that the assessment has to have relation to the search or requisition. In other words, the assessment, should be connected with something found during the search or requisition, viz., incriminating material which reveals undisclosed income Thus, while in view of the mandate of sub- section (1) of section 153A of the Act, in every case where there is a search or requisition, the Assessing Officer is obliged to issue notice to such person to furnish returns of income for the six years preceding the assessment year relevant to the previous year in which the search is conducted or requisition is made, any addition or disallowance can be made only on the basis of material collected during the search or requisition. In case no incriminating material is found, as held by the Rajasthan High Court in the case of Jai Steel (India) v. Asst. CIT (supra), the earlier assessment would have to be reiterated. In case where pending assessments have abated, the Assessing Officer can pass assessment orders for ....
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.... of a valid search under Section 132 of the Act, 1961. The very purpose of search, which is a prerequisite/trigger for invoking the provisions of sections 153A/153C is detection of undisclosed Income by undertaking extraordinary power of search and seizure, i.e the income which cannot be detected in ordinary course of regular assessment. Thus, the foundation for making search under Sections 153A/153C can be said to be the existence of incriminating material showing undisclosed income detected as a result of search. 10. On a plain reading of Section 1534 of the Act, 1961, it is evident that once search or requisition is made, a mandate is cast upon the AD to issue notice under Section 153 of the Act to the person, requiring him to furnish the return of income in respect of each assessment, year falling within six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made and assess or reassess the same. Section 153A of the Act reads as under: "153A. Assessment in case of search or requisition (1) Notwithstanding anything contained in Section 139, Section 147, Section 148, Section 149, Section ....
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....o such assessment year." 11. As per the provisions of Section 153A, in case of a search under Section 132 or requisition under Section 132A, the AO gets the jurisdiction to assess or reassess the 'total income' in respect of each assessment year falling within six assessment years. However, it is required to be noted that as per the second proviso to Section 153A, the assessment or re-assessment, if any, relating to any assessment year falling with the period of six assessment years pending on the date of initiation of the search under Section 132 or making of requisition under Section 132A, as the case may be, shall abate. As per sub-section (2) of Section 153A, if any proceeding initiated or any order of assessment or reassessment made under sub-section (1) has been annulled in appeal or any other legal proceeding, then, notwithstanding anything contained in sub-section (1) or section 153, the assessment or reassessment relating to any assessment year which has abated under the second proviso to sub- section (1), shall stand revived with effect from the date of receipt of the order of such annulment by the Commissioner. Therefore, the intention of the legislation seems ....
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....search or requisition. Therefore, only in a case where the undisclosed income is found on the basis of Incriminating material, the AO would assume the jurisdiction to assess or reassess the total income for the entire six years block assessment period even in case of completed/unabated assessment. As per the second proviso to Section 153A, only pending assessment/reassessment shall stand abated and the AO would assume the jurisdiction with respect to such abated assessments. It does not provide that all completed/unabated assessments shall abate. If the submission on behalf of the Revenue is accepted, in that case, second proviso to section 153A and sub-section (2) of Section 153A would be redundant and/or re- writing the said provisions, which is not permissible under the law. 13. For the reasons stated hereinabove, we are in complete agreement with the view taken by the Delhi High Court in the case of Kabul Chawla (supra) and the Gujarat High Court in the case of Saumya Construction (supra) and the decisions of the other High Courts taking the view that no addition can be made in respect of the completed assessments in absence of any incriminating material. 14. In view of the....
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....ch and seizure operation conducted in the Respondent's premises. During the course of search, valuation report of the site engineers of the projects regarding work in progress (WIP) as on 30.11.2008 were found. It was noticed the figures indicated in the valuation report of the site engineers were higher than the work-in-progress recorded in the books of the Respondent as on 30.11.2008. As per the provisional Profit and Loss Account, this difference was Rs.9.30 Crores. Thus, the Respondent had agreed on 16.2.2008 to addition of Rs.10 Crores being made. However, at the end of subject Assessment Year in its return of income the Respondent had not offered the additional income of Rs.10 Crores. Nevertheless, the Assessing Officer proceeded to add Rs.10 Crores being the additional income on account of excess work in progress, which was financed out of unexplained source of income. Thus, attracting Section 69C of the Act. Resultantly, the Assessing Officer by order dated 31.12.2010 passed under Section 143(3) of the Act made an addition of Rs.10 Crores under Section 69C of the Act. 4. Being aggrieved, the Respondent preferred an appeal to the Commissioner of Income Tax (Appeals) [C....
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....e of search on 18.12.2008 i.e. provisional estimate of the work-in- progress and not a result of taking physical inventory by the respondent- assessee or the search party In the above circumstances, the Appeal of the Respondent was allowed. On further appeal, the tribunal by the impugned order inter-alia records the fact that the Assessing Officer had not disputed the valuation of closing work in progress as on 31.3.2009. This figure has been arrived on actual verification,. There is also no disallowance of any expenditure or suppression of income detected by the Revenue. In the aforesaid facts, the Tribunal held that in absence of any material being brought on record to show that the valuation done as on 31.3.2009 is incorrect, no occasion to apply Section 69C of the Act can arise. The Tribunal further holds that Section 69C of the Act would not be applicable to the facts of the present case as there is no evidence of any record or reference and the difference was only on account of estimation of the value of Work in Progress by the site engineers in November, 2008 and actually arriving at the value on physical verification which is reflected in the return of income as on 31.3.2....
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....stock i.e. work-in- progress is in excess of that recorded/disclosed by the Respondent, the same has to be added to the income only under Section 69A of the Act as held by this Court in Dialust v. DCIT 261 ITR 456. In fact, the impugned order of the Tribunal places reliance upon the above decision of this Court. No submission was made on the part of the Revenue as to why the above decision is not applicable to the present facts. 10. In view of the above, the question as proposed does not give rise to any substantial question of law. Thus, not entertained." 10. Respectfully following the ratio of the judgment of the Hon'ble Jurisdictional High Court, we feel that no interference is called for in the order of CIT (A). However, we have traversed to a different part to hold that the addition is not sustainable. 11. There are certain excruciating and glaring facts to be considered which will shake the very foundation of the addition on account of so called difference in valuation of the construction carried away as per the valuation report. [i] It is an established fact that the appellant is acting only as the developer and the entire construction was subcontracted on back to back....
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....ral Range-1, Nagpur. The order u/s 263 was passed on 08.10.2018. Subsequent to such revision order, the impugned assessment orders were passed on 26.12.2019. We are unable to judiciously accept the proposition that while PCIT Central has revived the order u/s 263 in the case of the appellant. She had not ordered similarly in the case of Sufalam Infra Projects Pvt. Ltd. Indirectly she concluded that the order of Sufalam Infra Projects Pvt. Ltd., was neither erroneous nor prejudicial to the case of the revenue. Then, if that be so, the entire assessment of jurisdiction u/s 263 in case of appellant is doubt, because of the close connection and proximity of the business transaction. [iii] The sale of flats in the project was never doubted or questioned by the department and the sales as per books of account were duly accepted. Therefore, if at all the appellant has made such huge unexplained expenditure, he must have recovered the same by taking on money from the purchasers of the flats so that the entire transaction is outside the regular books of accounts. It is a matter of fact that no such evidences were unearthed by the department in the course of search and seizure proceeding. ....
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....rted by the Finance (No. 2) Act, 1998, with effect from 1 April, 1999. Board Circular, which explains the amendment as under: "29. Amendment of section 69C.-29.1 Under the existing provisions, where an expenditure incurred by the taxpayer in respect of which he either offers no explanation regarding expenditure such expenditure or where explanation offered is found unsatisfactory, the expenditure is treated as "income" under section 69C. There is corresponding provision for disallowance of such expenditure. 29.2 This used to enable the taxpayer charged to tax under section 69C to claim the expenditure as deduction under section 37 defeating the very objective of the section. 29.3 The Act has amended section 69C of the Income-tax Act according to which unexplained expenditure deemed as income cannot be allowed as deduction under any head of income. 29.4 This amendment will take effect from 1st day of April, 1999, and will, accordingly, apply in relation to the assessment year 1999-2000 and subsequent years." 4. Unexplained expenditure. It has been held that it is a normal rule of presumption and evidence that where an assessee has in fact incurred certain expenditure and i....
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....aken into cognizance by the AO, but she had judiciously ordered for denovo assessment. Therefore, the Assessing Officer had all the powers to further conduct enquiry and to positively come to a conclusion that certain unexplained expenditure was there. But in the subsequent proceeding, the Assessing Officer simply added back the difference in the valuation u/s 69 of the IT Act and after cursorily dismissing the objection raised by the assessee against the valuation report. Since the assessment order is continuation of such proceedings and is a fresh order, he even passed the order without taking approval u/s 153D of the IT Act, 1961. 13. Now, the only point that remains to be adjudicated is the addition u/s 68 towards unsecured loans from various companies for A.Y. 2014-15, 2015-16 and 2018-19. We find that the CIT (A) is his combine order for A.Y. 2014-15 and 2015-16 has elaborately dealt with the matter as follows. "8. Ground no 5-6: Additions U/s 68: The AO has made additions u/s 68 in respect of unsecured loans taken by the appellant as under: Α.Υ. 2014-15 Α.Υ. 2014-15 M/s Anubhav Vinimay Pvt. Ltd. Rs. 2,00,00,000/- M/s Blue View Trade com ....
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....onjectures formed the belief that the transaction is not genuine and has proceeded to make the addition which is unsustainable in law. While doing so, the AO has also not brought record any adverse evidences to reject the confirmations submitted by the Lenders in the independent enquiries as well. 8.4 The appellant further pleaded that AO ignoring the financials of the Lenders which are more than sufficient to justify the grant of loan to the appellant, has proceeded to analyse the source of the funds of the Lenders and has come to the incorrect conclusion that the source of funds of the Lenders are not genuine and has made the addition. This action of the AO not sustainable in law as the appellant has duly discharged the onus cast upon it under law. The source of the loans having been already explained by the lender themselves, the appellant would not be required to prove the source of the source- as has been wrongly presumed by the AO. Section 68 mandates the assessee to prove the identity, creditworthiness and genuineness of the Lenders. The Lenders being private limited companies, the identity stands established. The appellant having filed the audited statement of accounts of....
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....y the appellant during the course of assessment proceedings which is not acceptable. 8.8 The appellant has rightly placed reliance on Anil Chhaganlal Jain Vs. ACIT (ITAT Mumbai)[supra] wherein it has been held that if the assessee has explained the source of the loans received by it, the fact that the lender may have raised bogus share capital to advance the funds to the assessee does not mean that the loan received by the assessee can be treated as unexplained income. 8.9 The appellant has also very rightly pointed out the application of proviso to section 68 which creates the obligation on the issuing company to explain the source when the amount credited pertains to share application money, share capital, share premium or any such amount by whatever name called. The proviso does not apply to unsecured loans as in the present case. The appellant has argued and placed reliance on CIT Vs. Lovely Exports Pvt. Ltd. (2008) 6 DTR 308 (SC) that in case the department was not satisfied about the source of the funds of the Lenders, it was free to proceed against the Lenders rather than making additions in the hands of the Appellant. 8.10 The appellant has rightly placed reliance on ....
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....he amount has been invested by a particular person, be he a partner or an individual, then the responsibility of the assessee-firm is over. The assessee- firm cannot ask that person who makes investment whether the money invested is properly taxed or not. The assessee is only to explain that this investment has been made by the particular individual and it is responsibility of that individual to account for the investment made by him. If that person owns that entry, then, the burden of the assessee- firm is discharged. It is open for the assessing officer to undertake further investigation with regard to that individual who has deposited this amount. 5. So far as the responsibility of the assessee is concerned, it is satisfactorily discharged. Whether that person is income-tax payer or not or from where he has brought this money is not the responsibility of the firm. The moment the firm gives satisfactory explanation and produces the person who has deposited the amount, then the burden of the firm is discharged and in that case the credit entry cannot be treated to be income of the firm for the purposes of income-tax. It is open for the assessing officer to take appropriate actio....
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....39;ble SC has held as under: "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 Sechon for at the instance of the did not pursue the matter further. The Revenue did not examine the source of income of the said alleged creditors to find out whether they were credit worthy or were such who could advance the alleged loans. There was no effort made to pursue the so-called alleged creditors. In those circumstances, the assessee could not do anything further. In the premises, if the Tribunal came to the conclusion that the assessee had discharged the burden that lay on him, then it could not be said that such a conclusion was unreasonable nor perverse or based on no evidence. If the conclusion is based on some evidence on which a conclusion could be arrived at, no question of law as such arises." Simply issue of notice u/s 133(6) thus does not justify as AO making independent enquiries and in absence of the same the addition so made is unsustainable under law. ....
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....d M/s Bonanza Suppliers P. Ltd. had share holders fund amounting to Rs. 22,39,09,152/- and Rs. 1,44,78,422/-respectively. I also find that the loan has been given through banking channel and it is reflection in bank account of both the parties (viz., the appellant and the creditor company). The appellant has also submitted that the companies which had given the loan have issued cheques and that the transactions are duly reflected in appellant's bank account. The appellant vehemently contested that the creditor companies had enough fund to advance loan of Rs. 12,50,00,000/- to the appellant. Accordingly, in view of these facts, I am of the considered view that the appellant has discharged the primary onus cast upon it to prove the identity, creditworthiness and genuineness of transaction in its case. 6.1 The AO concluded that the lending companies were paper companies engaged in providing accommodation entries of share capital along with share premium in lieu of cash. However, the AO has not been able to bring out any evidence in support of this ascertain in the assessment order. A search and seizure action was conducted at appellants premise on 02/12/2014. During the course o....
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....ses yet once he proves the identity of the creditors/ share applicants by either furnishing their PAN number or income-tax assessment number and shows the genuineness of transaction by showing money in his books either by account payee cheque or by draft or by any other mode, then the onus of proof would shift to the Revenue. Just because the creditors/ share applicants could not be found at the address given, it would not give, it would not give the Revenue the right to invoke section 68. One must not lose sight of the fact that it is the Revenue which has all the wherewithal to trace any person. Moreover, it is settled law that the assessee need not to prove the source of source." The assessee-company was engaged in the business of financing and trading of shares. For the assessment year 2001-02 on scrutiny of accounts, the Assessing Officer found an addition of Rs. 71,75,000/- in the share capital of the assessee. The Assessing Officer sought an explanation of the assessee. The Assessing Officer sought an explanation of the assessee about this addition in the share capital. The assessee offered a detailed explanation. However, according to the Assessing Officer, the assessee fai....