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2015 (9) TMI 80 - DELHI HIGH COURT

2015 (9) TMI 80 - DELHI HIGH COURT - [2016] 380 ITR 573 - Deemed dividend u/s 2(22)(e) - Whether additions made to the income of the Assessee for the AYs were not sustainable because no incriminating material concerning such additions were found during the course of search and further no assessments for such years were pending on the date of search? - Held that:- Once a search takes place under Section 132 of the Act, notice under Section 153 A (1) will have to be mandatorily issued to the perso .....

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he 'total income' of the aforementioned six years in separate assessment orders for each of the six years. In other words there will be only one assessment order in respect of each of the six AYs “in which both the disclosed and the undisclosed income would be brought to tax”.

Although Section 153 A does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information available with the AO which can .....

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rch) and the word 'reassess' to completed assessment proceedings.

Insofar as pending assessments are concerned, the jurisdiction to make the original assessment and the assessment under Section 153A merges into one. Only one assessment shall be made separately for each AY on the basis of the findings of the search and any other material existing or brought on the record of the AO. Completed assessments can be interfered with by the AO while making the assessment under Section 153 A on .....

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additions could have been made to the income already assessed. Decided in favour of the Assessee - ITA 707/2014, ITA 709/2014, ITA 713/2014 - Dated:- 28-8-2015 - Dr. S. Muralidhar and Mr. Vibhu Bakhru, JJ. For the Petitioner : Ms. Suruchi Aggarwal, Senior Standing counsel with Ms. Lakshmi Gurung, Advocate. For the Respondent : Mr. C.S. Aggarwal, Senior Advocate with Mr. Manish Sharma, Mr. Prakash Kumar and Mr. Pranay Raj Singh, Advocates. Judgment Dr. S. Muralidhar, J. The issue 1. These three .....

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er Section 2(22)(e) of the Income Tax Act, 1961 ( Act ) were not sustainable because no incriminating material concerning such additions were found during the course of search and further no assessments for such years were pending on the date of search?' Background facts 3. A search was carried out under Section 132 of the Act on 15th November 2007 on BPTP Ltd., a leading real estate developer operating all over India and mainly in the National Capital region and some of its group companies. .....

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ee filed returns for the three AYs on 19th January 2009. For AY 2002-03, the Assessee declared a total income of ₹ 12,42,740. The assessment was finally completed by the Assessing Officer (AO) on the total income of ₹ 68,31,740 which, inter alia, included an addition of ₹ 50 lakhs on account of a gift received by the Assessee from Mrs. Gianna Fissore, ₹ 2 lakhs on account of low house withdrawals and ₹ 37,162 on account of deemed dividend under Section 2 (22) (e) of .....

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the Assessee was a substantial shareholder. For the AY 2006-07, the income was assessed at ₹ 1,35,87,112 which, inter alia, included two additions of ₹ 12,77,193 and ₹ 90,26,389 on account of deemed dividend under Section 2 (22) (e) of the Act corresponding to the additions made on protective basis in the hands of Shalimar Town Planners Pvt. Ltd. (STTPL) and on a substantive basis in the hands of other companies of the BPTP Group in which the Assessee was a substantial shareho .....

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urged before the CIT (A) was that as far as the additions made under Section 2 (22) (e) of the Act were concerned, no evidence had been unearthed during the search to warrant such additions. It may be mentioned here that as far as AY 2002-03 was concerned, the Assessee did not contest the addition of ₹ 50 lakhs made on account of the gift received from Ms. Fissore and tax thereon was paid. 7. By the orders dated 27th November 2012, the CIT (A) dismissed the appeals. The CIT (A) noted the s .....

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der of the lending companies concerned. The AO had observed that in the respective assessment orders of STPPL etc for the relevant AYs it had been noted that the Assessee herein was a registered shareholder in the companies that had advanced them loans. The AO had rejected the contention of the Assessee herein that he himself had not received any sum by way of dividend and that the advance had been received by the sister concerns of the group during the normal course of business. 8. The CIT (A) .....

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d held that giving such loans or advances to the sister concerns was with the ultimate aim of making the money available to the shareholders of such sister concerns. In the present case since the loans and advances were given by one group company to other group company where the Assessee had shares constituting more than 10% of voting rights, such loans and advances were to be assessed in the hands of the Assessee as deemed dividend under Section 2(22)(e) of the Act. There were no facts supporti .....

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the completed assessment on the date of the search would stand on the same footing as the pending assessments which in terms of the second proviso to Section 153A(1) of the Act would abate. It was noticed that in CIT v. Anil Kumar Bhatia (supra), this Court had left open the question whether in order to frame an assessment in terms of the first proviso to Section 153A(1) of the Act in respect of those AYs for which the assessments had already been completed, there was a requirement that some inc .....

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roceedings under Section 153A(1) of the Act shall be computed by considering the originally determined income. If some incriminating material is found in respect of such assessment years for which assessment is not pending, then the total income would be determined by considering the originally determined income plus (+) income emanating from the incriminating material found during the course of search." 10. In the facts of the present cases, the ITAT concluded that the additions made for A .....

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11. The submission of Ms. Suruchi Aggarwal, learned Senior Standing Counsel for the Revenue, is that there is no mention in Section 153A of the Act that any incriminating material had to be found during the search in order that an assessment could be framed in terms of the first proviso to Section 153A(1) of the Act for those AYs where the assessment already stood completed on the date of the search. Referring the judgement of this Court in Madugula Venu v. Director of Income Tax [2013] 29 Taxm .....

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assessment for each of the six previous years had to be carried to the logical end. If in that process any undisclosed income relating to completed assessments came to light, it would be open to the AO to proceed to make such additions, as was done in the present case. 12. Ms. Aggarwal also placed reliance on the decision dated 7th August, 2012 of this Court in ITA No.2021/2010 (CIT v. Chetan Das Lachman Das). Referring to the observations of the Court in Filatex India Ltd. v. CIT-IV [2014] 49 .....

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hands of two entities, i.e. STPPL and PPDPL. 13. Replying to the above arguments, Mr. C.S. Aggarwal, learned Senior Counsel for the Assessee, referred to the observations in CIT v. Anil Kumar Bhatia (supra) and the subsequent judgements and emphasised that notwithstanding that Section 153A(1) of the Act may itself not specifically state that some incriminating material had to be found during the course of search on the basis of which an addition could be made to the income in the course of the a .....

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ncome Tax [2011] 12 Taxmann.Com 74 (Del), of the Rajasthan High Court in Jai Steel (India), Jodhpur v. ACIT [2013] 36 Taxmann.Com 523 (Raj) and the judgement dated 29th October, 2010 of the Bombay High Court in ITA No.36/2009 (CIT v. M/s. Murli Agro Products Ltd.). 14. Mr. Aggarwal added that if, in the absence of any material unearthed during the course of search, an AO has come to a different conclusion on the documents and evidence already available at the time of finalisation of the earlier .....

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e belief that any income had escaped assessment . The decision in Anil Kumar Bhatia 15. At the outset this Court would like to observe that an analysis of the provisions of Section 153A of the Act has been undertaken by this Court in the decision in CIT v. Anil Kumar Bhatia (supra), which decision was given on the same date that the Court rendered another decision in CIT v. Chetan Das Lachman Das (supra). However, in neither case was the Court considering a situation where there was absolutely n .....

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20th November, 2007 along with detailed questionnaire. In response thereto the Assessee on 29th November, 2007 submitted an explanation. Thereafter the AO made additions to the income including a sum of ₹ 1.50 lakh given by the Assessee as loan to one Mrs. Mohini Sharma on 10th February, 2003. The information regarding giving of the loan was available from a document seized from the premises during search and found undisclosed in the return filed for AY 2003-2004. Concluding that the loan .....

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he Department. The question before the Court, therefore, was whether the AO had wrongly invoked Section 153A of the Act since no material had been found during the search to justify the addition made ? 17. This Court in CIT v. Anil Kumar Bhatia (supra) then analysed Section 153A of the Act and explained that with the introduction of the group of sections, viz., Sections 153A to 153C, the concept of a single block assessment was given a go-by. It was explained that where a search was made after 3 .....

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e assessment orders for each of the six years. This meant that there could be only one Assessment Order in respect of each of the six AYs in which both the disclosed and the undisclosed income would be brought to tax . 18. This Court in CIT v. Anil Kumar Bhatia (supra) posed the question as under: 21. A question may arise as to how this is sought to be achieved where an assessment order had already been passed in respect of all or any of those six assessment years, either under Section 143(1)(a) .....

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moved by the non obstante clause with which sub section (1) of Section 153A opens. 19. The Court then explained that the concept of time-limit for completion of assessment or reassessment under Section 153 had been done away with in a case covered by Section 153A and with all the stops having been pulled out, the Assessing Officer under Section 153A has been entrusted with the duty of bringing to tax the total income of an Assessee whose case is covered by Section 153A, by even making reassessme .....

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tal income' would include both the income declared in the returns, if any, furnished by the Assessee as well as the undisclosed income, if any, unearthed during the search or requisition. Therefore, merely because the returns of income filed by the Assessee for the AYs previous to the date of the search already stood processed under Section 153A(1)(a) of the Act it could not be held that the provisions of Section 153A could not be invoked. 20. As regards the material unearthed during the sea .....

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case where no incriminating material was found during the search conducted under Section 132 of the Act. We, therefore, express no opinion as to whether Section 153A can be invoked even in such a situation. That question is therefore left open. 21. Therefore it is clear that the decision in CIT v. Anil Kumar Bhatia (supra) does not deal with a situation where, as in the present case, no incriminating material was found during the search conducted under Section 132 of the Act. The decision in Ch .....

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f Hing. Consequently that was again not a case where there was no material unearthed during the search. The judgement also notes that it is on the basis of the material unearthed that the AO made additions of suppressed sale value of Hing and compound Hing. The High Court interfered with the order of the ITAT on the ground that it had failed to examine the seized material itself to find out if the findings of the CIT(A) were justified. Consequently the decision in CIT v. Chetan Das Lachman Das ( .....

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the previous year in which the search took place. To repeat, there is no condition in this Section that additions should be strictly made on the basis of evidence found in the course of the search or other post-search material or information available with the Assessing Officer which can be related to the evidence found. This, however, does not mean that the assessment under Section 153A can be arbitrary or made without any relevance or nexus with the seized material. Obviously an assessment ha .....

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search and, therefore, there was no basis to issue the notice under section 153A. It must be remembered that the Petitioner in that case had come forth with a writ petition to challenge the search and seizure proceedings under Section 132 of the Act by questioning the very issuance of notice under Section 153A of the Act. It is in that context that the Court found no merit in the writ petition and observed that once a search was conducted under Section 132 of the Act, it was mandatory for the AO .....

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in case he has evidence or material to show that he has not earned any income which is not disclosed to the income tax authorities or to rebut the material gathered during the search, it is perfectly open to him to do so. One observation in the said judgement is, however, important. While explaining Section 153A of the Act, the Court observed it is not merely the undisclosed income that will be brought to tax in such assessments, but the total income of the assessee, including both the income e .....

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estate business filed its return for AY 2008-2009. His case was taken up under Section 143(3) of the Act and an order came to be passed on 31st December, 2010. Subsequently a search took place in the premises of the Assessee under Section 132 of the Act on 12th April, 2011. The judgement notes in the course of search, incriminating material leading to undisclosed income was seized. The notice was issued to the Assessee under Section 153A(1) of the Act to file return of income on 13th January, 20 .....

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s stood reopened and it is for the assessing authority to pass appropriate order on the basis of the return filed under Section 153A(1)(a) of the Act. 26. In the High Court the question was whether the CIT could invoke the power under Section 263 of the Act once the proceedings under Section 153A was initiated. The High Court in Canara Housing (supra) answered the question in the negative. It referred to the decision of this Court in CIT v. Anil Kumar Bhatia (supra) and came to the conclusion th .....

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disclosed in the earlier return or which is not unearthed during the search, in order to find out what is the total income of each year and then pass the assessment order. 27. It is important to note that Canara Housing was also a case where some material was unearthed during the search. Further, the High Court was clear that the addition to the income already disclosed would have to be based on some material unearthed during the search. This is clear from the observation in para 9 of the decisi .....

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x India Ltd. v. CIT-IV (supra), one of the questions framed was whether the ITAT erred on facts and in law in not holding that recomputation of book profit, de-hors any material found during the course of search, in the order passed under Section 153A of the Act was without jurisdiction, being outside the scope of proceedings under that Section? The facts of the case were that there was incriminating material found during the course of search conducted in the premises of the Assessee on 18th Jan .....

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on under Section 115JB of the Act, since there was some incriminating material found which would sustain additions made and since the 'total income' had to be computed, they were sustained by the High Court. 29. In Filatex India Ltd. the Court sought to explain the observations in CIT v. Chetan Das Lachman Das (supra) in the following manner: 3. Learned counsel for the appellant-assessee has relied on the decision of this Court in CIT v. Chetan Das Lachman Das [20121 211 Taxman 61/25 tax .....

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assessment or reassessment of the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which the search took place. It was emphasized that there is no condition in this Section that the additions should be strictly made on the basis of evidence found during the course of the search or other post search material or information available with the Assessing Officer, related to the evidence found. Subsequent observation to the effect that th .....

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ot mean that the assessment under Section 153A can be arbitrary or made without any relevance or nexus with the seized material". However, the immediately next line in CIT v. Chetan Das Lachman Das (supra)reads: Obviously an assessment has to be made under this Section only on the basis of seized material.... 31. What distinguishes the decisions both in CIT v. Chetan Das Lachman Das (supra) and Filatex India Ltd. v. CIT-IV (supra) in their application to the present case is that in both the .....

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come Tax v. Kurele Paper Mills P. Ltd.), this Court declined to frame a question of law in a case where, in the absence of any incriminating material being found during the search under Section 132 of the Act, the Revenue sought to justify initiation of proceedings under Section 153A of the Act and make an addition under Section 68 of the Act on bogus share capital gain. The order of the CIT(A), affirmed by the ITAT, deleting the addition, was not interfered with. The decision in Jai Steel India .....

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ined as under: 22. In the firm opinion of this Court from a plain reading of the provision along with the purpose and purport of the said provision, which is intricately linked with search and requisition under Sections 132 and 132A of the Act, it is apparent that: (a) the assessments or reassessments, which stand abated in terms of II proviso to Section 153A of the Act, the AO acts under his original jurisdiction, for which, assessments have to be made; (b) regarding other cases, the addition t .....

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rom the scheme of the said provision which was in the context of search and/or requisition. The Court also explained the purport of the words assess and reassess , which have been found at more than one place in Section 153A of the Act as under: 26. The plea raised on behalf of the assessee that as the first proviso provides for assessment or reassessment of the total income in respect of each assessment year falling within the six assessment years, is merely reading the said provision in isolat .....

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d which would also necessarily support the interpretation that for the completed assessments, the same can be tinkered only based on the incriminating material found during the course of search or requisition of documents. The decision in Continental Warehousing 35. In Commissioner of Income Tax v. Continental Warehousing Corporation (Nhava Sheva) Ltd. [2015] 58 Taxmann.Com 78 (Bom) the question addressed by the Bombay High Court was whether the scope of assessment under Section 153A encompasses .....

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hereto. One of the specific pleas taken by the Assessee was that if no incriminating material was found during the course of search in respect of an issue then no addition in respect of any issue can be made to the assessment under Sections 153A and 153C. It was observed that the assessment or reassessment under Section 153A arises only when a search has been initiated and conducted and, therefore, such an assessment has a vital link with the initiation and conduct of the search. The Court then .....

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al assessment and found in the course of search in our humble opinion such books of account or other documents have to be taken into account while making assessment or reassessment of total income under the aforesaid provision. Similar position will obtain in a case where undisclosed income or undisclosed property has been found as a consequence of search. In other words, harmonious interpretation will produce the following results: (a) Insofar as pending assessments are concerned, the jurisdict .....

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property discovered in the course of search 36. Ultimately in Continental Warehousing (supra), the Bombay High Court answered the question framed by it as under: a. In assessments that are abated, the AO retains the original jurisdiction as well as jurisdiction conferred on him u/s 153Afor which assessments shall be made for each of the six assessment years separately; b. In other cases, in addition to the income that has already been assessed, the assessment u/s 153A will be made on the basis .....

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under: i. Once a search takes place under Section 132 of the Act, notice under Section 153 A (1) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise. iii. The AO will exercise normal assessmen .....

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