TMI Blog2018 (6) TMI 1462X X X X Extracts X X X X X X X X Extracts X X X X ..... d from the residence of the assessee at the time of search by police alleging him to be a Satta operator is money withdrawn from his dairy business of M/s. Naman Dairy wherein he is a partner. Thus, there is no need to interfere with the findings of the CIT(A). - Decided against assessee. - ITA No. 1934/Del/2015 - - - Dated:- 27-6-2018 - MS. SUCHITRA KAMBLE, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER For The Assessee : Sh.Sanjeev Bajaj, CA For The Respondent/Revenue : Ms. Meeta Singh, CIT DR ORDER PER SUCHITRA KAMBLE, JM This appeal is filed by the assessee against the order dated 29.01.2015 passed by the CIT(Appeals)-3, Gurgaon for AY 2011-12. 2. The Grounds of appeal are as under: 1. That the order passed u/s 153B(1)(b) of the Income Tax Act, 1961 is bad in law and against facts. 2. On the facts and circumstances of the case, the order passed u/s 153B(1)(b) of the Income Tax Act, 1961 is bad in law as no proper notices were issued/served. The order passed is without jurisdiction and barred by limitation. 3. On the facts circumstances of the case, the Ld.CIT(A) has erred in sustaining the addition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is mandatory requirement and is not curable u/s 292BB of the Act. The Ld. AR further submitted that Ground Nos. 1 and 2 are not raised before the CIT(A). The Ld. AR relied upon the following decisions: i) ACIT anr. vs. Hotel Blue Moon (2010) 321 ITR 362 (SC) ii) Pr. CIT vs. Paramount Biotech Ind. Ltd. (2017) 11 TMI 127, (Del. HC) iii) DIT vs. V. R. Educational Trust 2013 (12) TMI 745 (Del. HC) iv) Alpine Electronics Asia Pvt. Ltd. vs. DGIT (2012) 341 ITR 247 (Del.) v) Dalmia (R) vs. CIT (1999) 236 ITR 480 (SC) vi) CIT vs. Pawan Gupta (2009) 318 ITR 322 (Del) vii) DCIT vs. M/s Silver Line (2014) 10 TMI 141 (Del.) viii) CIT vs. Rajeev Sharma (2011) 336 ITR 678 (All.) ix) UKT Software Technologies P. Ltd. vs. ITO 2013(1)TMI 678 (Del. Tri.) x) CIT vs. Mukesh Agarwal (2012) 345 ITR 29 (All.) xi) CIT vs. M/s Parikalpana Estate Development (P) Ltd. 2012(10)TMI 617 (All. HC) xii) CIT vs. M/s Cebon India Ltd. (2012) 347 ITR 583 (P H) xiii) Pr. CIT vs. Shri Jai Shiv Shanker Traders P. Ltd. (2016) 383 ITR 448 (Del.) xiv) CIT vs. Delhi Kalyan Samiti 2016 (4) TMI 172 (Del.) As regards to Ground No. 3, the Ld. AR submitted that the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d) ii) Bansal High Carbons (P) Ltd. (2009) 223 CTR 179 (Del) iii) Sanjeev Kumar Jain (2009) 310 ITR 178 (P H) iv) CIT vs. Uttamchand Jain 320 ITR 554 (Bom) v) Paul Mathews 263 ITR 101 (Ker) and Kadar Khan 300 ITR 157 (Mad) vi) Vinod Solanki vs. UOI 233 ELT 157 (SC) 6. The Ld. DR relied upon the Assessment Order and the order of the CIT(A). 7. We have heard both the parties and perused all the relevant records. As relating to Ground No. 1 and 2, it can be seen that in the present case the notice under Section 143(2) was issued to the assessee which is not the mandatory requirement under the provisions of Section 153A of the Act. As per Section 153A, simple notice has to be given to the assessee. Thus, the contention of the Ld. AR that issue of notice u/s 143(2) within stipulated time is mandatory requirement and is not curable u/s 292BB of the Act does not find support. The notice issued to the assessee has mentioned Section 143(2) but that can be treated as simple notice which has to be given under the provisions of Section 153A of the Act. In fact, the Hon ble Delhi High Court in case of Ashok Chaddha vs. ITO 337 ITR 399 after considering the decision of the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 153A - Assessment in case of search or requisition [1] Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, in the case of a person where a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A after the 31st day of May, 2003, the Assessing Officer shall - ( a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six assessment years referred to in clause (b), in the prescribed3 form and verified in the prescribed manner and setting forth such other particulars as may be prescribed 3 and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139 ; ..................... 9. There is no specific provision in the Act requiring the assessment made under section 153A to be after issue of notice under section 143(2) of the Act. Learned counsel for the assessee places heavy reliance on the judgment of the Hon_ble Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Clause(a) thereof provides for issuance of notice to the person searched under Section 132 or where documents etc are requisitioned under Section 132(A), to furnish a return of income. This clause nowhere prescribes for issuance of notice under Section 143(2). Learned counsel for the assessee/ appellant sought to contend that the words, so far as may be applicable made it mandatory for issuance of notice under Section 143(2) since the return filed in response to notice under Section 153A was to be treated as one under Section 139. Learned counsel relies upon R. Dalmia v CIT (supra) wherein the question of issue of notice under Section 143(2) was examined with reference to Section 148 by the Supreme Court in the context of Section 147. The Apex Court held as under: As to the argument based upon Sections 144-A, 246 and 263, we do not doubt that assessments under Section 143 and assessments and reassessments under Section 147 are different, but in making assessment and re-assessments under Section 147 the procedure laid down in Sections subsequent to Section 139, including that laid down by Section 144B, has to be followed. 12. The case of R. Dalmia v CIT (supra) pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhopal, whereas the claim of ownership was made on 23.01.2008, much after the date of seizure. No steps were taken by the assessee or Shri Sudhir Chadha for almost 5 years. It was only when the assessment order came to be passed on 31.12.2007, that Shri Sudhir Chadha submitted a claim that the money belongs to him. Also, there is no plausible explanation given by the assessee as to why his employee was found in possession of cash. No detail has been filed about the land sought to be purchased by him. In these circumstances, the Tribunal was right in holding that the claim made by Shri Sudhir Chadha is an afterthought to accommodate the assessee. Had the money really belonged to him, he would have made the claim soon after its seizure. Consequently, we are in agreement with the concurrent finding of both CIT (A) and the Tribunal. 17. In view of our above discussion, we decide both the issues in favour of the Revenue and against the assessee. The appeal is hereby dismissed. This decision has also considered other decision which was relied by the Ld. AR namely, R. Dalmia v. CIT, 236 ITR 480 (SC), CIT v. Pawan Gupta, 318 ITR 322. Thus, the contention of the Ld. AR that no pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded by the police, it is true that in any civil proceedings including assessment proceedings no conclusive or substantive findings can be drawn on the basis of such statements recorded by the Police. However under the provisions of Cr.P.C. the persons are nonetheless bound to answer truly all questions relating to the issue being put to him by the Police. In the case at hand, the Punjab Police Ludhiana raided the residence of the assessee on13.6.2010 and seized cash of ₹ 1,07,00,000/-. The assessee and his son Lalit admittedly were taken into police custody. The assessee has alleged police torture and that the statement dated 17.6.2010 had been obtained forcefully. However inkling of any police torture has not been brought out. The copy of Court order dated 21.7.2010 (PB page 09), rather illegible, is titled State vs. Amar Nath etc. from which it appears that the accused was further remanded to judicial custody, to be produced on 05.7.2010 and so on. In the statement dated 17.6.2010 (PB-page 06-08) which was after 4 days of remand, the assessee clearly admitted to doing satta business after 2004-05, and even the modus operandi was explained viz. business conducted by ph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he course of search from the residence of the assessee as follows: 01. The assessee has confessed in statement dated 17.06.2010 that he is carrying Satta activities and the cash found from his residence is pertaining to that activity. In answer to Question No. 1, he has categorically and emphatically confessed the above fact. Further, he has also explained the modus operandi that of that business stating that it was carried on phone and the payments are collected by the Munims from Bookies or by himself also, if required. In question No. 2, he submitted that he is earning money from Satta business but is not shown in the income tax return. In answer to Q No. 7 wherein he was asked to explain the cash found of ₹ 1.07 crores on 13.06.2010 from his residence, he submitted that ₹ 36 lacs are form two parties and he does not know the name of one of them and further sum is unaccounted earning from Satta business . On reading of his statement, it is apparent that he has given the minutest detail of the source of the money found during the course of search. He did not retract this statement subsequently. On 30.08.2010, in his statement u/s 131 of the act, he changed hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame on 17.05.2010 with the firm back in CASH. There is no explanation why asssessee has withdrawn such a huge sum and deposited the same within thirty days. Why the sum was kept for such a long time. Whether it was given to anybody etc. All these questions remained unanswered. Further he withdrew on 31.05.2010 in cash ₹ 50 lacs and once again on 11.06.2010 in cash ₹ 57 lacs from the firm. Therefore, from these accounts, assessee tried to show that ₹ 1.07 lacs found from the residence was this sum withdrawn from the firm. To show the cash in hand the assessee has furnished the cashbook from 01.04.2010 to 12.06.2010. The assessee has shown that it has opening cash in hand on 01.04.2010 of ₹ 4034843/- and subsequently, the assessee has shown the huge sale of milk of ₹ 1.75 lacs per day. It is important to note that the return of income for Assessment Year 2010-11 in which the opening balance was shown to be ₹ 40.34 lacs was also filed after the date of search i.e. 27.09.2010. Further it is interesting to note that in the month of April on 05.04.2010 the assessee has debited in cash staff salary of ₹ 2.70 lacs whereas, labour charges of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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