TMI Blog2017 (1) TMI 1784X X X X Extracts X X X X X X X X Extracts X X X X ..... on 292C of the I.T. Act there is no basis for considering this sum as addition in the hands of the assessee. This assessment is framed pursuant to notice u/s 153C of the I.T. Act. Before the assessment was framed under this section in this case, there was a search conducted on 04-02-2010 at the assessee s premises. In this search also no incriminating material or evidence relating to the addition made in this case was found. Thus from the above it is clear that the plea of the Revenue authority that Shri Anand Agrawal is a benamidar of assessee is devoid of any cogency. When the Revenue is alleging that the apparent is not real then onus lies upon the Revenue to prove the same. In the present case Revenue has totally failed to prove the same. The documents, cash jewellery involved have been found at the time of search at the premises of Shri Anand Agrawal, Shri Anand Agrawal has owned up the same, he has filed an affidavit in this regard, he has filed the return of income in this regard, the same has been added in his hands on substantive basis as per the appellate order of the CIT(Appeals), the Revenue has decided not to appeal against the said order, thus the addition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remises, assessment under section 153C for AYs 2003-04 to 2009-10 were pending. The AO carried on the assessment proceedings and separate orders u/s 153C relating to earlier proceedings and u/s 153A in respect of search operation dated 4.2.2010 were passed. Therefore all these assessments are not validly passed as per the provisions of the IT Act. The appeals at sr. No. 1 and 2 relate to the assessments u/s 153C and those at sr. No. 3 relate to assessments u/s 153A. All these assessments are defective. 3. Referring to the above, learned D.R. submitted that all the assessments in this case should have been annulled by the learned CIT(Appeals) and matter remitted to the AO for fresh assessments, that the Department is in the process of filing additional grounds in this regard. Hence adjournment may be granted. 4. We have heard both the counsel and perused the records. We find that in the above averments learned D.R. is accepting that the assessments are defective and they have not been validly passed. This signifies that these are invalid assessments. If this plea is accepted then there cannot be any grievance to the Revenue in learned CIT(Appeals) deleting the additions made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ination by the 29a [Principal Commissioner or] Commissioner; (c) where any order referred to in this sub-section and passed by the Assessing Officer had been the subject matter of any appeal 31 [filed on or before or after the 1st day of June, 1988], the powers of the 31a [Principal Commissioner or] Commissioner under this sub-section shall extend 31 [and shall be deemed always to have extended] to such matters as had not been considered and decided in such appeal.] 32 [(2) No order shall be made under sub-section (1) after the expiry of two years from the end of the financial year in which the order sought to be revised was passed.] (3) Notwithstanding anything contained in sub-section (2), an order in revision under this section may be passed at any time in the case of an order which has been passed in consequence of, or to give effect to, any finding or direction contained in an order of the Appellate Tribunal, 33[National Tax Tribunal,] the High Court or the Supreme Court. Explanation.-In computing the period of limitation for the purposes of sub-section (2), the time taken in giving an opportunity to the assessee to be reheard under the proviso to se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such ground raised either by the Revenue or by the assessee, we do not deem it appropriate to engage into this adjudication to hold the assessments to be invalid. 7. Further more learned DR s plea that learned CIT(Appeals) should have annulled the assessment and sent the matter back to the AO for reconsideration also has no merits. Hence there is no cogent reason for seeking adjournment. 8. Revenue s appeal . The grounds of appeal read as under : 1. Whether in law and on facts circumstances of the case, the CIT(A) has erred in concluding that the addition of ₹ 1,21,08,113/- made by A.O. did not make out a case for including the income on substantive basis in the hands of the assessee and directing the A.O. to assess in the hands of Shri Anand Kumar Agrawal. 2. Whether in law and on facts circumstances of the case, the CIT(A) has erred in quashing the assessment on the ground that proceedings u/s 153C are not correct and no incriminating material was found. 9. In this case the AO laconically made the addition by observing as under : The facts of the case and submissions of the assessee are common for assessment years 2003-04 to 2009-10. The finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant on the basis of various inferences. Perusal of the initial statement reveals that the red suitcase was owned by Shri Anand Kumar Agrawal. Smt. Sita Devi Agrawal also admitted the ownership, thus, in so far as the appellant is concerned, there is no incriminating material relating to the cash and jewellery. Hence, these facts suggest that these assets do not belong to the appellant. Similarly, there is no evidence brought on record by the AO, to show that the family contribution made by Shri Anand Kumar Agrawal was in fact the money of Shri B.L. Agrawal, which was ploughed back through Shri Anand Kumar Agrawal. Under these circumstances, the only logical conclusion, specifically with respect to movable assets, is that the possessor is the owner and the liability thereupon to explain the same rests with him unless otherwise proved by credible evidence. The provisions of sec.292C of the Act in fact aim at achieving this objective. In the instant case, the A.O. has neither, during the assessment proceedings nor, during the remand proceedings, pointed out any evidence to substantiate his opinion that' the cash and gold jewellery actually belong to the appellant, except h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that; Shri Anand Kumar Agrawal had offered income in the return filed under section 153A of I.T. Act, 1961. The aforesaid income has been assed by the A.O. on protective basis at the hands of Shri Anand Agrawal and has been assessed on substantive basis at the hands of assessee. It has been held by A.O. that Shri Anand Agrawal is benamidar of Shri B.L. Agrwal. That in the course of action u/s 132(1) of I.T. Act, 1961 at the premises of Shri Anand Agrawal a red bag containing certain ornaments, cash and documens was found with Smt. Sita Devi Agrawal. In the course of search statement of Smt. Sita Devi Agrawal was recorded during proceedings u/s 132(4) of I.T. Act, 1961. In statement u/s 132(4) she deposed in answer to question No.2 that the aforesaid bag belonged to her and contents of the same are owned by her. The inventory drawn in respect to ornaments and cash found during the course of search clearly indicate that ornaments and cash are belonging to Smt. Sita Devi Agrawal. In the course of search itself Shri Anand Agrawal in answer to question No. 40, 91 95 has stated that the bag containing the ornaments and cash and documents belonged to them. No where in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Shri Anand Agrawal are belonging to assessee. The addition for cash and ornaments is unjustified and unsustainable. That the protective assessment made by A.O. in the case of Shri Anand Agrawal was challenged in appeal filed by him before Hon'ble CIT(A), Raipur.In the appellate proceedings the Hon'ble CIT(A) has held that income as offered in the returns of income u/s 153A of I.T. Act 1961 is liable to be assessed on substantive basis and not on protective basis as concluded by AO. The aforesaid order in the appellate proceedings of Shri Anand Agrawal has achieved finality as it is not under challenge by revenue authorities in appeal before ITA T. The substantive assessment as directed by CIT(A) having achieved finality the very same income cannot be assessed at the hands of assessee. It is elementary principle of law that same income cannot be assessed twice. Reliance on: i) (2002) 254 ITR 0606 CIT vs. Narendra Doshi That in the order passed by Hon'ble CIT(A) at para 6 ground of appeal of assessee challenging the validity of assessment u/s 153C of LT. Act 1961 has been decided in favour of assessee. The ground of validity of assessment is not under chall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 015. iii) ITA No. 254 of 2014 Judgement (per Hon ble the Chief Jusice Shri Kalyan Jyoti Sengupta). iv) CBDT Circular No. 24/2015 dated 31-12-2015. That it is settled position of law that onus lies on Revenue Authoritis to show that Shri Anand Agrawal is benami of assessee. No evidence on record are found in the course of search to show that Shri Anand Agrawal is benamidar of assessee. In fact Department has made search on Shri Anand Agrawal as independent group and this itself dispel the doubt of A.O. that Shri Anand Agrawal is benamidar of Shri B.L. Agrawal. Reliance on: i) 1977 AIR (SC) Krishnaqnand Agnihotri vs. State of M.P. That it is settled position of law that apparent is real. Asses found from Shri Anand Agrawal in search accepted by him to be belonging to him. He offered the value of assets found as income and paid taxes on such assets found from him in 153A proceedings. Reliance on: i) (1973) 87 ITR 349 (SC) CIT vs. Daulat Ram Rawatmull. Ground No. 2: Proceedings u/s 153C of I.T. Act, 1961. A) No notice u/s 153C of I.T. Act, 1961 has been issued in the case of assessee for Asstt. Year 2009-10. Perusal of satisfaction note placed in paper book ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has owned up the entire amounts, reflected the same in the return of income and the same has been added in his hands. In such circumstances there does not remain any basis of making any addition in the hands of the assessee. 16. Section 292C of the I.T. Act provides as under : 292C. 99 [(1)] Where any books of account, other documents, money, bullion, jewellery or other valuable article or thing are or is found in the possession or control of any person in the course of a search under section 132 1 [or survey under section 133A], it may, in any proceeding under this Act, be presumed- (i) that such books of account, other documents, money, bullion, jewellery or other valuable article or thing belong or belongs to such person; (ii) that the contents of such books of account and other documents are true; and (iii) that the signature and every other part of such books of account and other documents which purport to be in the handwriting of any particular person or which may reasonably be assumed to have been signed by, or to be in the handwriting of, any particular person, are in that person s handwriting, and in the case of a document stamped, executed or attest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proportionate to known source of income joint possession Effect of other party claiming ownership/contribution Accused public servant and his wife living together Prosecution discharged its initial burden by proving recovery of unaccounted for money and other assets from premises jointly in possession of accused and his wife Accused on his part satisfactorily establishing that the monies and assets recovered belonged to his wife which she amassed from the business run by her separately In absence of any evidence that the assets belonged to the accused, held, he cannot be held liable under PC Act for such assets. ii) Krishnanand v. State of M.P. AIR 977 Supreme Court 796. The burden of showing that a particular transaction is behami and the owner is not the real owner always rests on the person asserting it to be so and this burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of benami is the intention of the parties and not unoften, such intention is shrouded in a thick veil wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt the fact that the office of the Central Bank, is in the same building in which there are the business premises of the respondent-firm. This was, a wholly extraneous and irrelevant circumstances for determining the ownership of ₹ 5,00,000 which had been deposited in fixed deposit in the name of B. There should, be some direct nexus between the conclusion of fact arrived at by the authority concerned and the primary facts upon which that conclusion is based. 19. The above case laws fully support the case of the assessee. The law expounded herein above is that when the Revenue is alleging that the apparent is not real then onus lies upon the Revenue to prove the same. In the present case Revenue has totally failed to prove the same. The documents, cash jewellery involved have been found at the time of search at the premises of Shri Anand Agrawal, Shri Anand Agrawal has owned up the same, he has filed an affidavit in this regard, he has filed the return of income in this regard, the same has been added in his hands on substantive basis as per the appellate order of the CIT(Appeals), the Revenue has decided not to appeal against the said order, thus the addition of this a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
