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TMI Blog2017 (1) TMI 1784X X X X Extracts X X X X X X X X Extracts X X X X ..... eration. As per the second proviso to section 153A of the Act, " Assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years referred to in this subsection pending on the fate of initiation of the search under section 132.....shall abate." On 4.2.2010 i.e. on the date of search and seizure operation in assessee's premises, 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Director General or] Director General or 29a[Principal Commissioner or] Commissioner authorised by the Board in this behalf under section 120; (b) "record" 30[shall include and shall be deemed always to have included] all records relating to any proceeding under this Act available at the time of examination 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter back to the AO for reconsideration. 6. In view of the above discussion it appears from the above averments of the learned D.R. that the assessments in this case deserve to be quashed abinitio. However, since there is no 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 Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 holding that the red suitcase as a whole belongs to him on the ground that it was not immediately owned by Shri Anand K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said 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 statement it is averred that it belongs to Shri S.L. Agrawal. Shri Anand Agrawal in subsequent statement given on 28/01/2009 has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment 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 challenge by revenue authorities in appeal filed before Hon'ble IT AT for Asstt. Year 2003-04 to 2008-09, in view thereof adjudication of ground in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (P-11) (Vol.-I) clearly indicates that satisfaction has been drawn by A.O. for initiation proceedings u/s 153C for Asstt. Year 2003-04 to 2008-09 and not for Asstt. Yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 attested, that it was duly stamped and executed or attested by the person by whom it purports to have been so executed or attested.] 2[(2) Where any books of account, other documents or ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of the serious onus that rests on him, nor justify the acceptance of mere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determining the ownership of Rs. 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 amount in the hands of Shri Anand Agrawal has reached finality. There is no evidence whatsoever found in the course of the search that that Shri Anand Agrawal is a benamidar of the assessee, rather the Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X
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