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TMI Blog2023 (3) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... Chand, Sr.DR ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER:- The above captioned 24 appeals are filed by 8 different appellants, preferred against 3 set of orders each pertaining to Assessment Year 2017-18. Since all these appeals were heard together and common issues are involved, therefore, these are being disposed of by this common order for the sake of convenience brevity. 2. The representatives of both the sides agreed that the facts in the case of Shri Sourabh Aggarwal, Legal Heir of Smt. Kamala Agarwal may be considered as the facts in all other appeals are identical and on such concession, we are considering the facts in ITA No. 962/DEL/2022 alongwith ITA No. 677/DEL/2022 and ITA No. 919/DEL/2022 for disposal of the captioned appeals. 3. We will first address to the issues raised in ITA No. 962/DEL/2022. 4. The impugned assessment order is dated 17.12.2019 framed u/s 143(3) of the Income-tax Act, 1961 [hereinafter referred to as 'The Act'] and the order of the first appellate authority is that of CIT(A)-3, Gurgaon dated 31.03.2022. 5. The sum and substance of the quarrel is that the ld. CIT(A) erred in upholding an addition made of Rs. 4.50 crores u/s 69A of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto the aforementioned findings of the Assessing Officer are as under: (i) Return of income was filed on 24.07.2017 declaring an income of Rs. 17,40,150/-; (ii) Return was selected for scrutiny assessment and detailed questionnaire was issued on 09.09.2019 alongwith notice u/s 142(1) of the Act; (iii) The assessee was asked to furnish requisite details as under: "Please refer to your return of income filed on 24.07.2017. You are aware that your case is selected in scrutiny and notice u/s 143 (2) has already been issued. In order to complete the assessment proceedings, you are requested to furnish the following details/information alongwith supporting documentary evidences on or before 24.09.2019 through e-filing. There is large value of cash deposits by you during demonetization period as compared to returned income as cash deposits are significantly large as compared to returned income. Furnish details of all cash deposits along with source of investment thereof. Also furnish the details of total exempt income and agricultural income earned by you during the year under consideration along with source of investment to earned said income." (iv) The assessee filed he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ADIT, Investigation, Ambala as under: "Statement of Smt. Kamla Aggarwal D/o, Sh. Harbans Lal Aggarwal R/o, E-49, Industrial Area, Yamuna Nagar Recorded u/s 13(1) of the Income Tax Act, 1961 on 28.12.2016 at the time of attendance in this office in compliance to the summons issued u/s 131 (1) of the Income Tax Act, 1961 dt. 23.12.2016 I swear in the name of God that I will speak the truth, only and nothing else but only truth. Q. Please identify yourself. Ans. Myself Kamla Aggarwal D/o, Sh. Harbans Lal Aggarwal R/o E- 49, Industrial Area, Yamuna Nagar. As a proof of my identity I am furnishing a copy of my Adhaar Card. Q. Information has been received by this office that you have deposited Rs.4.50 cr in your saving bank account No. 02101000050007 with HDFC Bank Ltd. Yamuna Nagar on 13.11.2016, 15.11.2016 & 21.11.2016 post 08.11.2016. In this regard, please explain the nature of the aforesaid cash deposits. Ans. I have deposited Rs.4.50 cr. In demonization of Rs.500/- and Rs.1000/- after demonetization on 08.11.2016. The said cash deposit has been made from my current year income i.e. F.Y. 2016- 17 in the saving bank account and I have already deposited the adva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2016 notified by the Central Govt. to buy peace of mind and to avoid any litigation under the provisions of Income Tax Act, 1961 before the ld. Assistant Director-of Income Tax (Inv.), Aayakar Bhawan, B.C. Bazar, Ambala Cantt. and the balance tax of Rs.5,20,72,500/- was deposited from 16-02-2017 to 17-03- 2017. In view of above, we have discharged our total tax liability @49.9% i.e. Rs. 16,34,22,500/- on the declared income of Rs.32.75 crores and also amount deposited @25% i.e. Rs.8,18,75,000/- on the declared income of Rs.32.75 crores in PMGKDS, 2016. It is further submitted that we had also filed the declaration Form 1 with Hon'ble CIT (Central Circle), Gurgaon under PMGKY scheme 2016 for processing the same as reported to Id. Assistant Director of Income Tax (Inv.), Aayakar Bhawan, B.C. Bazar, Ambala Cantt. The detailed chart of above said eight family members in respect of income declared under PMGKY Scheme 2016 and the details of tax deposited as well as amount deposited in PMGKDS, 2016 is being enclosed herewith. We came to know that the department software is not accepting our tax of Rs. 11,13,50,000/- deposited and declared before the Id. Assistant Director of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RY Scheme 2016 (4) Advance Tax Paid in challan No. 280 (5) Tax Paid in Challan No. 287 (6) Total Tax paid (49.9%) (7) Amount deposited in PMGKY Deposit Scheme 2016 (25%) (8) 1. Kamla Aggarwal AAGPA4655K 4,50,00,000 1,53,00,000 71,55,000 2,24,55,000 1,12,50,000 2. Summon dtd. 23/12/2016 was received from Asst. Director of Income Tax (Inv), Ambala in my name for cash deposited in demonetized currency after 8/11/2016 in the bank account. In response to the summon myself attended and appeared before the ADIT (Inv.), Ambala on 28/12/2016. As per the advise of ADIT (Inv.), Ambala, the amount of cash deposited in the bank account after 8/11/2016 in old currency notes were agreed to be declared under PMGKY Scheme 2016. The scheme 'was announced on 16th December, 2016 wherein the tax was to be deposited at 49.9% and 25% of the amount was to be deposited in the PMGKY Deposit Scheme which is refundable after a certain period. I were assured by the ADIT (Inv.), Ambala that the advance tax deposited on 16/11/2016 and 22/11/2016 by me would be adjusted against the tax payable under PMGKY Scheme. I were further informed that balance amount of tax may be deposited on or befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm is not being processed. 5. In view of this I have no other alternative but to approach the Hon'ble CBDT to issue suitable instructions in this regard to the concerned official of Systems of the Department so that the amount paid in challan No.280 on 16/11/2016 and 22/11/2016 by me can be transferred to the' payment under PMGKY scheme so that the undue hardship can be avoided in the matter. The details of Advance Tax paid on 16/11/2016 and 22/11/2016 by me are enclosed in the statement. 6. It is further submitted that I have not claimed the payment made in challan No.280 on 16/11/2016 and 22/11/2016 aggregating to Rs. 1,53,00,000/- in the return of income filed by me for A.Y.2017-18. As such this .amount of tax paid has not been adjusted against the regular tax liability for A.Y.2017-18 and therefore there is no case of any double credit for the said amount. 7. Kindly do the needful in the matter and oblige. Hoping to be excused for trouble and thanking you, Yours faithfully, (Kamla Aggarwal) (xiv) On 12.11.2019, the Deputy Commissioner/ACIT, Central, Karnal wrote the following letter to the assessee: "Subject: Assessment proceedings in your case for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, the assessee would like to submit that out of an income of Rs. 4,50,00,000/-, the assessee has deposited Rs. 3,00,00,000/- in the saving bank account with HDFC Bank Ltd., Yamuna Nagar during the year and I have deposited the advance tax of Rs: 1,02,00,000/- on the income of Rs.3,00,00,000/- vide challan no.00180 dated 16/11/2016 BSR 0510308 for the A.Y. 2017-18. This is for your kind information please." 2.3 That on 16.12.2016, PMGKY scheme was announced wherein tax was to. be deposited at 49.9%; and 25% of the amount was to be deposited in the PMGKY Deposit Scheme which is refundable after a certain period. 2.4 That on 23.12.2016, summon was received from learned Assistant Director of Income Tax (Inv.), Ambala in the name of assessee in respect of cash deposit made after 8.11.2016 in the bank account. A copy of the summon is already placed on record. 2.5 That on 28.12.2016 in response to the summon, the assessee attended and appeared before the learned ADIT (Inv.) Ambala and on the basis of advice of learned ADIT the amount of cash deposited in the bank accounts after 8.11.2016 in old currency notes was agreed to be declared under PMGKY Scheme 2016. A copy of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore the system is not processing the declaration in the case of assessee. -A copy of letter dated 31.3.2017 to learned Pr. CIT (Central). Gurgaon is already placed on record. It was requested in the said letter that the declaration filed in Form No.1 under PMGKY scheme may be processed manually and certificate may be issued accordingly. 2.9 In the meantime, my representative again appeared before learned Pr. CIT (Central) Gurgaon again requested to process the forms and to issue the certificate because the tax required to be paid under the scheme has been duly paid within the due dates and also the amount of deposit made within time. It was submitted that the difference was of challan numbers- and he requested again to the learned Pr. CIT (Central) Gurgaon to adjust the tax paid in challan No.280 between 14.11.2016 to 24.11.2016 under the PMGKY Scheme; and the learned Pr. CIT (Central) Gurgaon stated that the system is not accepting the request and therefore the form is not being processed. 2.10 Thereafter on 8.1.2018 assessee submitted. a representation to the CBDT (copy of the same submitted in office of learned Pr. CIT (Central) Gurgaon on 15.01.2018) wherein assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Department. The relevant portion of form 26AS is as under: FORM 26AS Name of Assessee : Kamla Aggarwal PAN : AAOPA4655K. Assessment Year : 2017-18 PART A - Details of Tax Deducted at Sources PART B - Details of Tax Collected at Sources PART C - Details of Tax Paid (other than TDS or TCS) S. No Major Head Min or Head Tax Sur charge Education Cess Other Total Tax BSR Code Date of Deposit Challan Serial No. i) 0021 300 15,093 0.00 453 0.00 22,400 0510308 21-July-2017 01679 ii) 0021 100 1,50,000 0.00 0.00 0.00 1,50,000 0510308 21-July-2017 71974 iii) 0021 100 51,00,000 0.00 0.00 0.00 51,00,000 0510308 21-July-2017 00348 iv) 0021 100 -51,00,000 0.00 0.00 0.00 -51,00,000 0510308 21- July-2017 00348 v) 0021 100 1,02,00,000 0.00 0.00 0.00 1,02,00,000 0510308 21-July-2017 00180 vi) 0021 100 1,02,00,000 0.00 0.00 0.00 1,02,00,000 0510308 21-July-2017 00180 Remarks: On 16.11.2016 the advance tax payment of Rs. 1.02crs. & Rs. 51 Lakhs respectively removed from the advance tax payment and balance advance tax shown in 26AS for AY 2017-18 is Rs. 1.50 lak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arwal E-49 Industrial Area, Yamunanagar 3.25 crores 3.25 crores 3 SharwanAggarwal E-49 Industrial Area, Yamunanagar 7crores 7crores 4 Rama Aggarwal E-49 Industrial Area, Yamunanagar 5crores 5crores 5 KamlaAggarwal E-49 Industrial Area, Yamunanagar 4.5crores 4.5crores 6 RajanAggarwal E-49 Industrial Area, Yamunanagar 5crores 5crores 7 ManjuAggarwal E-49 Industrial Area, Yamunanagar 3crores 3crores 8 SarikaAggarwal E-49 Industrial Area, Yamunanagar 3crores 3crores 32.75 crores 32.75 crores (xviii) Copy of letter issued by the DGIT, Chandigarh to the Dy. Director, INV, Chandigarh read as under: "Sub.: Report of STR No. 10316517 P-1 in the case of Sh. Sourabh Aggarwal C/o Globe Ranel Industries I. Pvt. Ltd. 419 Industrial Area, Behind, Yamuna Nagar (PAN: AALPA1253A) Kindly refer to your office letter F. No. Fr. DIT/INV/CHD/STRIP-II/2017-18/1280 dated 31.07.2017 dated 31.07.2017 vide which approval for closure of the STR in the above said case was sought. 2. In this regard, I am directed to convey that the worthy DGIT (Inv.) NWR has accorded the approval for closure of the STR. Letter dated 11.08.2017 Sub.: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re appears to be no Bonafide error involved as the intention at the time of making advance tax payment was not to make payment towards PMGKY Scheme and the payment was also made before the notification of the PMGKY Scheme. (iv) As per the provision of the PMGKY Scheme, the credit of advance tax paid was not allowed in respect of income declared under the PMGKY Scheme. In this context, reliance is placed on Q. No. 6 of FAQ released by CBDT vide Circular No. 2/2017 dated 18.01.2017, wherein it is specifically clarified that No credit of advance tax paid, TDS or TCS shall be allowed under the Scheme. This issue has been decide in favour of the Revenue by the Hon'ble High Court of Delhi in the case of Virag Tiwari V. Pr. CIT-21 vide order dated 12.03.2018, SLP filed by Sh. Virag Tiwari is pending for adjudication at the Supreme Court. 3. In this regard, it has been reported by the DGIT (System that correction in original challan attributes from advance tax challans (minor head 100) to PMGKY challan (minor head 112) which was wrongly carried out by DGIT (systems) on the basis of order u/s 119 dated 27.09.2017 has been rectified and challan attributes have been reverted back to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome, and the assessee offers no explanation about the nature and source of acquisition of the money, bullion, Jewellery or other valuable article, or the explanation offered by him is not in the opinion of the 57 [Assessing] Officer, satisfactory, the money and the value of the bullion, jewellery or other valuable article may be deemed to be the income 56 of the assessee for such financial year." 11. A perusal of the above shows that this section is attracted when some unexplained money for which the assessee is found to be the owner and such money is not recorded in the books of accounts, if any, maintained by the assessee for any source of income for which the assessee does not offer any explanation or the explanation of the assessee is not satisfactory in the opinion of the Assessing Officer. 12. The facts explained hereinabove clearly show that it is the assessee who came forward with the explanation that the amount deposited in the bank account on which advance taxes have been paid in November 2016 and subsequently, the same was offered under PMGKY Scheme, 2016 cannot become assessable u/s 69A of the Act. 13. The assessee in her statement, given u/s 131 of the Act before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny assessment or reassessment made under the I.T. Act or W.T. Act or to claim any set off or relief in any appeal, reference or other proceeding in relation to such assessment or reassessment. c) The contents of the declaration shall not be admissible in evidence against declarant for the purpose of any proceedings under any Act other than the Acts referred to in Para 8 above and Para 8 contains declaration not eligible in certain cases and read as under: "Declaration not eligible in certain cases : 8. The provisions of this Scheme shall not apply- (a) in relation to any person in respect of whom an order or detention has been made under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 subject of the conditions specified under the Scheme. (b) in relation to prosecution for any offence punishable under Chapter IX or Chapter XVII of the Indian Penal Code, the Narcotic Drugs and Psychotropic Substances Act, 1985, the Unlawful Activities (Prevention) Act, 1967, the Prevention of Corruption Act, 1988, the Prohibition of Benami Property 40 Transaction Act, 1988 and the Prevention of Money- Laundering Act, 2002; (c) to any person noti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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