9911796707
TMI Blog2023 (5) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the appellant's case and in not directing the AO to delete the addition of Rs.6,93,02,104/- which is not relating to the assessment year 2013-14. 4. On the facts and the circumstances of the appellant's case and in directing the AO to assess the unexplained cash credit in the year's the loan was received amounting to Rs.6,93,02,104/-. 5. The appellant craves leave to alter, amend, modify or substitute any ground or grounds and to add any new ground/(s) as may be necessary." 3. The first ground of appeal of the assessee is against the action of the Ld. CIT(A) in confirming the action of the AO making an addition of Rs.75,94,000/- on account of unexplained cash deposits. 4. Brief facts the AO noted on this issue was that the assessee who is an individual had filed his return of income on 28.09.2013 declaring total income to the tune of Rs.12,62,258/-. Later, the case of the assessee was selected for scrutiny and the AO notes that the assessee was the business manager and also proprietor of M/s. B. R Entertainment. The AO noted that as per the AIR data, the assessee had deposited cash to the tune of Rs.77,94,000/- and has made credit card paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. So the AO did not accept the new-explanation given by assessee during the First Appellate Proceedings. The Ld. CIT(A) gave a copy of the remand report for assessee's reply. And pursuant to it, the assessee drew the attention of the Ld. CIT(A) to the bank-statement received from HDFC Bank account of M/s. B. R. Entertainment which reflected the cash withdrawal of Rs.97 Lakhs from (HDFC bank account no. 00192560003761 Richmond Road, Bangalore Branch) and cash deposited of Rs.70 Lakhs in the said bank account (same bank/HDFC) along with copy of the ledger account of HDFC Bank in the books of assessee. And the assessee offered balance cash of Rs.5,94,000/- as additional income for the year under consideration because he was unable to prove the source of it. The assessee also brought to the notice of the Ld. CIT(A) that Shri Indrajit Chatterjee who withdrew and deposited the cash was co-producer of the film 'Joe bhi karwalo' and to support this assertion brought to his notice the copies of media reports showing that Shri Indrajit Chatterjee was the co-producer of the film; and also invoices issued in the name of Shri Indrajit Chatterjee by "Hotel the Chancery Pavilion at Bangalore." B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ils to AO as under: - "I have current account in the name of M/s. BR Entertainment at HDFC bank Versova Branch Account No. 00192560003761 and saving account (2) In my personal name in the same HDFC Bank bearing account no. 00191000089838. I also have a joint account with my son Rishikesh Malviya bearing account no. 0019130013592." 6. And answer to question no. 9 regarding the source of the funds, the assessee had admitted to have taken a loan of (i) Rs.4.73 crores from Shri Indrajit Chatterjee and (ii) from Shri Ajay Bagdal (M/s. Rajvi Entertainment) of Rs.5 crores and (iii) loan from Shri Ramchandra about 50 Lakhs and (iii) from friends (Shri Shefani Rs.25 to 30 Lakhs). Answering to question no. 10, the assessee also brought to AO's notice that the loan confirmation from Shri Indrajit Chatterjee could not be given since he was in police/judicial custody (arrested by the Kolkata Police) for alleged fraud of fixed deposit involving M/s. West Bengal Infrastructure Development Finance Corporation. And also he furnished the loan confirmation from all the other parties from whom he has availed loans. In order to substantiate the cash deposit, the assessee stated that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anch and pursuant thereto, the Ld. CIT(A) called for remand report from the AO who was of the opinion that though there was total cash deposit of Rs.75,94,000/-, the assessee's contention that the cash deposit of Rs.70 Lakhs was made by Shri Indrajeet Chatterjee out of the cash withdrawn by him from the bank account of M/s. BR Entertainment itself has no supporting evidence to prove that the total cash deposited of Rs.70 Lakhs were out of cash withdrawn by Shri Indrajeet Chatterjee to the tune of Rs.75 Lakhs. According to AO other than, the Hotel bills of Shri Indrajeet Chatterjee, Railway ticket etc. and Media report about him co-producing the movie along with assessee the hindi Movie there was no other evidence. So he did not accept the ibid explanation of the assessee. In this respect, we note that an amount of Rs.97 Lakhs was withdrawn from the bank account of M/s. BR Entertainment. The details of withdrawal of cash and deposited of cash in the assessee's bank account is as under: - (i) Details of cash withdrawn by Shri Indrajit Chterjee of Rs.97 Lakhs is given below - Date Amount 05/01/2013 5,00,000 07/01/2013 3,00,000 08/01/2013 3,00,000 10/01/2013 6,00,000 11/01 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs.97 Lakhs. And we note that Rs.70 Lakhs have been deposited between 06.02.2013 and 21.03.2013 when this fact of cash withdrawal as well as cash deposit was brought to the notice of the AO (during remand report proceedings), the AO did not accept the justification of the later deposit of Rs.70 Lakhs on the ground that the assessee could not prove that it was Shri Indrajeet Chatterjee who had withdrawn Rs.97 Lakhs and had deposited Rs. 70 Lakhs in the bank account of M/s. BR Entertainment. However, from a perusal of the bank statement of M/s. BR Entertainment for FY. 2012-13 which is placed at page no. 36 to 46 of PB from which it is noted that Rs. 97 Lakhs was withdrawn between 05.01.2013 to 04.10.2013 (which has been highlighted in the bank statement) and deposit of Rs.70 Lakhs has been made between 10.02.2013 and 21.03.2013. In the light of the aforesaid, we are of the opinion that assessee need to be given one more opportunity to adduce evidence from Shri Indrajeet Chaterjee that after withdrawal of amount he has deposited the same in assessee's/proprietary bank account as contended by assessee even though we are aware that assessee has changed the source of income from sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween 24.10.2013 to 01.01.2014; Rs.50 Lakhs from Shri Ramchandra on 16 & 17 May 2013; Rs.25-30 Lakhs from Shefan on 30.12.2013 all pertaining to AY. 2014-15) and it was brought to the notice of Ld. CIT(A) that Rs.1,13,02,104/- was the opening balance as on 31.03.2013. Therefore, Ld. CIT(A) did not confirm the addition of Rs.6,93,02,104/- (after calling for remand report). So we are concerned about balance Rs.4,92,60,000/- (i.e. Rs.11.85,62,104/- - Rs.6,93,02,104/-). And the assessee brought to the notice of the Ld. CIT(A) in respect of addition of Rs.4,73,00,000/- the following facts given in the form of chart as under: - S. No. Name Amount CIN Income Tax Jurisdiction Address 1 JCC Holding Pvt. Ltd. (PAN-AAACJ7214N) 50,00,000 U65999WB1993PTC058902 Ward 12(1), Kolkata 167/4, Lenin Sarani, PSBowbazar Kolkata-700072 68/5C, Ballygunge Place Ground Floor (Rear Side) Kolkata700019 2 Madhuvan Dealers Pvt. Ltd. (PAN- AACCM2074K) 50,00,000 U51909WB1995PTC074965 Ward 12(1), Kolkata 167/4, Lenin Sarani, PS- Bowbazar Kolkata-700072 13A, Deodar Street, Ground Floor Kolkata 700019 3 Rasraj Enclave Maker Pvt. Ltd. (Director-Ram Mohan Chatterjee 1,00,00,000 U69191WB200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) "With respect to Rs. 4,73,00,000/-- credited to the account of M/s. B.R. Entertainment from Shri Indrajit Chatterjee, the assessee, during appellate and remand proceedings, has submitted media report showing that Shri Indrajit Chatterjee was co--producer of the film alongwith details of expenses incurred in the production of film and bank book of M/s. B.R. Entertainment. The assessee has furnished copies of certain bills/vouchers exceeding Rs. 2,00,000/-- incurred in making of the film at Bangalore. Comments on additional evidence: In the copies of media reports furnished by the assessee, it is reported that Mr. Indrajit Chatterjee was co--producer of the film titled as Joe Bhi Karwalo and reportedly have invested in movies. The copies of certain bills/vouchers of expenses furnished by the assessee claimed to have been incurred in making of the film at Bangalore during the year under consideration mainly consists of-- i) Copies of invoices/bills of hotel The Chancery Pavilion, Bangalore and Hotel Nandhini, Bangalore in the names of Mr. Indrajit Chatterjee, Mr. Javed Jafferey, Ms. Tanya Pal, Mr. Sameer Sipi, Mr. AnsumanTakur, Mr. Samir Tiwari, Mr. Bhola Malvia, Mr. Asim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 2 crores and Shri Ram Mohan Chatterjee director of Shri Rasraj Enclave Maker Pvt. Ltd. gave Rs.2.73 crores and had furnished the CIN/DIN no. as well as PAN number of Shri Ram Mohan Chatterjee along with their jurisdictional Income Tax Officers and their respective address, the Ld. CIT(A) had confirmed of Rs.4,92,60,000/-. We find that out of Rs.4.73 crores given by three (3) corporate entities/ Pvt. Ltd. companies namely (i) M/s. Madhuvan Dealers Pvt. Ltd. (Rs. 50 Lakhs) (ii) M/s. JCC Holding Pvt. Ltd. (Rs.50 Lakhs) and (iii) M/s. Rajraj Enclave Maker Pvt. Ltd. (Rs. 1 crores), we note from the evidences adduced before us (which needs to be verified) that the amounts have come through cheque/RTGS in the bank account maintained in the name of M/s. BR Entertainment (a separate bank account number 00192560003761 was opened and maintained with HDFC Bank and a separate books of account were also maintained by the assessee of M/s. B. R. Entertainment which was solely for making the movie/film and placed for consideration of Ld. CIT(A) and AO at page 50 of PB) and the assessee had filed the CIN/DIN number of all the three (3) entities, their addresses and also has brought to the not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ank account. Thus, according to the assessee, from the current account of his proprietorship concern M/s. BR Entertainment i.e. A/c 00192560003761 an amount of Rs.9.60 Lakhs has been transferred to his saving bank account which fact has been brought to the notice of the AO and in the remand report placed at page no. 174 of PB. We note that the AO in the remand report observed about this "with respect to unsecured loan of Rs.9,60,000/- from M/s. BR Entertainment, the assessee has furnished the copy of ledger account in the books of assessee and......" 15. And regarding Rs.10 Lakhs, the AO noted that the unsecured loan of Rs.10 Lakhs shown as outstanding from Shri Indrajit Chatterjee has been offered by the assessee as additional income for the year under consideration. Thus, we note that the AO has not disputed the claim of the assessee in respect of both the aforesaid amounts i.e. Rs.9,60,000/- has been received in the form of loan from proprietor concern to himself/assessee (saving bank account). Therefore, the source of Rs.9.60 Lakhs stands proved and since its nature of transaction is loan as noted by AO in his remand report, it cannot be taxed. And since AO has accepted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T [140 ITR 1035 (Cal)] (b) ITO Vs. Murlidhar Bhagwan Das [52 ITR 335 (SC)] (c) N. Kt Sivalingam Chettiar Vs. CIT [66 ITR 586 (SC)] (d) Bakshish Singh Vs. ITO [93 ITR 178 (SC)] (e) ITO Vs. Sri Biswajit Chatterjee in ITA. No.565/Kol/2013 dated 10.11.2017 (f) Shri Sanjay Thakur Vs. DCIT in ITA No. 3785/Del/2015 dated 12.07.2018. 18. Per contra, the Ld. DR vehemently supported the order of the Ld. CIT(A) and contended that Explanation to Section 251 of the Act as well as section 150(1) of the Act gave power to Ld. CIT(A) to record his findings/direction necessary for disposal of the appeal; and then in such an event, the limitation period as prescribed u/s 149 of the Act gets lifted. So he doesn't want us to interfere in the impugned action of Ld. CIT(A). 19. We have heard both the parties. The issue is against the direction given by Ld. CIT(A) to AO to assess the income when it was received by the assessee. So first of all let us see to whether Ld. CIT(A) had power to give such a direction or not. For that we have to look at section 251 of the Act, which reads as under: - 251. (1) In disposing of an appeal, the Commissioner (Appeals) shall have the following powers- ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere any such assessment, reassessment or re-computation as is referred to in that sub-section relates to an assessment year in respect of which an assessment, reassessment or re-computation could not have been made at the time the order which was the subject-matter of the appeal, reference or revision, as the case may be, was made by reason of any other provision limiting the time within which any action for assessment, reassessment or re-computation may be taken." 23. A bare reading of Section 150(1) of the Act, it reveals that it is an enabling provision which extends the limitation time provided u/s 149 of the Act, which is turn prescribes the limitation time for re- opening an assessment of assessment year. And it should be noted that sub-section (2) of Section 150 of the Act circumscribes even sub-section (1) of Section 150 of the Act which reiterates the principle of law that no direction by any authorities can extend the statutory limitation period prescribed by the Income Tax Act 1961. 24. Before us, it is urged that the first appellate authority had no power to direct the Assessing Officer to bring the amount to tax in another assessment year. According to Ld. AR, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore him and not otherwise. This view of the Tribunal is corroborated by several decisions of the Supreme Court We may refer to the latest decision of the Supreme Court in the case of Rajinder Nath v. CIT , where the Supreme Court categorically observed that the expressions "finding" and "direction", in Section 153(3) were limited in meaning. The Supreme Court observed that a finding given in an appeal, revision or reference, arising out of assessment must be a finding necessary for the disposal of the particular case, that is to say, in respect of the assessee and in relation to the particular assessment year; to be a necessary finding, the Supreme Court observed, that it must be directly involved in the disposal of the case ; it was possible in certain cases that in order to render a finding in respect of A, a finding in respect of B might be called for; for instance where the facts showed that the income could belong to either A or B and to none else, a finding that it belonged to B or did not belong to B, would be determinative of the issue as to whether it could be taxed as A's income ; a finding respecting B was initially involved as a step in the process of reaching the u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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