M/s. Ramprastha Builders Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 3245/DEL/2013

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6660 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-05-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 05-07-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 22-05-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Search and seizure; Document seized; Charitable institution; Opportunity of being heard; Validity of assessment; Documents seized
• Section: 143(3); 133A; 153A; 234B; 143(1); 68; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : F : NEW DELHI BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE, JUDICIAL MEMBER ITA NOS.3245, 3248 & 3250/DEL/2013 ASSESSMENT YEARS: 2005-06, 2009-10 & 2010-11 RAMPRASTHA BUILDERS PVT. LTD., B-23-25, KAILASH COLONY, NEW DELHI. PAN: AADCR3877N VS DCIT, CENTRAL CIRCLE-14, NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAJESH JAIN, CA REVENUE BY : SHRI KANWALJIT SINGH, CIT, DR DATE OF HEARING : 14.02.2019 DATE OF PRONOUNCEMENT : 07.05.2019 ORDER PER R.K. PANDA, AM: THE ABOVE THREE APPEALS FILED BY THE ASSESSEE ARE D IRECTED AGAINST THE SEPARATE ORDERS OF THE CIT(A)-23, NEW DELHI, RELATING TO ASS ESSMENT YEARS 2005-06, 2009-10 AND 2010-11, RESPECTIVELY. FOR THE SAKE OF CONVENI ENCE, ALL THE THREE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CO MMON ORDER. ITA NO.3245/DEL/2013 (A.Y. 2005-06) 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS A COMPANY. A SEARCH AND SEIZURE OPERATION U/S 132 OF THE IT ACT, 1961 WAS C ONDUCTED BY THE INVESTIGATION WING ITA NOS.3245, 3248 & 3250/DEL/2013 2 OF THE DEPARTMENT ON 30 TH JULY, 2009 IN THE RAMPRASTHA GROUP OF CASES. THE BUSINESS PREMISES OF THE ASSESSEE COMPANY SITUATED AT B-23-2 5, KAILASH COLONY, NEW DELHI, GURGAON WAS ALSO COVERED U/S 132(1) OF THE IT ACT. IN RESPONSE TO NOTICE U/S 153A OF THE IT ACT ISSUED ON 11 TH MAY, 2011, THE ASSESSEE FILED ITS RETURN OF INCOME DECLARING AN INCOME OF RS.1,01,98,710/- ON 31 ST MAY, 2010. 3. THE ASSESSING OFFICER NOTED THAT DURING THE EXAM INATION OF BOOKS OF ACCOUNT AND SEIZED MATERIAL, IT WAS NOTICED THAT AS PER PAG E 114 TO 118, ANNEXURE A-6/PARTY A.O.-6 WHICH IS A SUMMARY OF DRAFT VERIFICATION REP ORT BY COMPANY LAW BOARD AUDITORS ON THE ISSUE OF DIVERSION/SIPHONING OF FU NDS OF RAMPRASTHA GROUP OF COMPANIES, IN THE HEADING OF SUM OF MONEY MENTIONED IN THE AGREEMENTS/DOCUMENTS VERIFIED BY THE AUDITOR BUT NOT REFLECTED IN THE BO OKS OF ACCOUNT, IT WAS MENTIONED THAT RBPL HAS GIVEN ADVANCE TO SHYAM SUNDER CHARITABLE T RUST FOR PURCHASE OF LAND IN VILLAGE CHAJARSI, GAUTAM BUDH NAGAR. THE SAID TRUS T DID NOT TRANSFER THE LAND AS PER THE AGREEMENT AND M/S RAMPRASTHA BUILDERS PVT. LTD. , HAS FILED A CASE IN THE COURT OF CIVIL JUDGE, GAUTAM BUDH NAGAR. ON GOING THROUGH T HE PETITION FILED BY SHRI BALWANT SINGH ON BEHALF OF THE ASSESSEE COMPANY, IT WAS NOTICED THAT M/S RAMPRASTHA BUILDERS PVT. LTD., HAS PAID A SUM OF RS.50 LAKHS O N 20 TH JANUARY, 2005 TO THE SAID TRUST WHICH IS NOT REFLECTED IN THE BOOKS OF M/S RA MPRASTHA BUILDERS PVT. LTD. IT HAS FURTHER BEEN MENTIONED THAT M/S RAMPRASTHA BUILDERS PVT. LTD. HAS PURCHASED LAND MEASURING 1 BIGHA, 15 BISWA AT VILLAGE CHAJARSI, DI STRICT GAUTAM BUDH NAGAR. HOWEVER, ALL THE DOCUMENTS OF PURCHASE OF LAND ARE IN FAVOUR OF SHRI SURAT SINGH, ITA NOS.3245, 3248 & 3250/DEL/2013 3 DIRECTOR OF M/S RAMPRASTHA BUILDERS PVT. LTD. THE ASSESSING OFFICER, THEREFORE, ASKED THE ASSESSEE TO EXPLAIN AS TO WHY THE AMOUNT OF RS.50 LAKHS ADVANCED TO M/S SHYAM SUNDER CHARITABLE TRUST TOWARDS ADVANCE FOR P URCHASE OF LAND AND NOT REFLECTED IN THE BOOKS OF ACCOUNT MAY NOT BE ADDED TO ITS INC OME. HE FURTHER MENTIONED IN THE SAID NOTICE THAT THIS PAYMENT HAS BEEN MADE ON 20 TH JANUARY, 2005. THE ASSESSEE IN ITS REPLY SUBMITTED THAT IT HAS MADE A PAYMENT OF ADVAN CE OF RS.50 LAKHS TO M/S SHYAM SUNDAR CHARITABLE TRUST TOWARDS ADVANCE FOR PURCHAS E OF LAND. THE MATTER IS PENDING IN THE COURT OF LAW. THE ADVANCE AMOUNT WAS RECEIV ED FROM OTHER PARTY AND THE JOURNAL ENTRY COULD NOT BE PASSED DUE TO SOME OVERS IGHT. 4. THE ASSESSING OFFICER NOTED FROM THE REPLY FILED BY THE ASSESSEE THAT THE ASSESSEE HAS RECEIVED THE ADVANCE AMOUNT FROM OTHER PARTY AND JOURNAL ENTRY COULD NOT BE PASSED DUE TO SOME OVERSIGHT, BUT, NO EVIDENCE I N SUPPORT OF THIS CONTENTION WAS FURNISHED. HE, THEREFORE, TREATED THE ARGUMENT OF THE ASSESSEE AS VAGUE AND WITHOUT ANY SUPPORT. SINCE THE ADVANCE OF RS.50 LAKHS HAS BEEN GIVEN TO SHYAM SUNDAR CHARITABLE TRUST ON 20 TH JANUARY, 2005 AND HAS BEEN ADMITTED BY THE ASSESSE E AND SINCE NO SOURCE OF THIS MONEY/ADVANCE WAS EXPLAINED , THE ASSESSING OFFICER MADE ADDITION OF RS.50 LAKHS INVOKING THE PROVISIONS OF SECTION 68 OF THE IT ACT. THE ASSESSING OFFICER HAS ALSO MADE ANOTHER ADDITION OF RS.1,98,060/-. HOWEVER, THE ASSESSEE IS NOT IN APPEAL ON THIS ISSUE. THEREFORE , WE ARE NOT CONCERNED WITH THE SAME. THUS, THE ASSESSING OFFICER DETERMINED THE TOTAL IN COME OF THE ASSESSEE AT RS.1,53,96,770/-. ITA NOS.3245, 3248 & 3250/DEL/2013 4 5. BEFORE THE CIT(A), THE ASSESSEE CHALLENGED THE V ALIDITY OF THE ASSESSMENT ON THE GROUND THAT NO INCRIMINATING DOCUMENTS HAS BEEN SEI ZED U/S 132(1) OF THE ACT AND THE DOCUMENTS RELIED BY THE ASSESSING OFFICER FOR MAKIN G THE ADDITION IN THE ASSESSMENT U/S 153A/143(3) OF THE ACT WERE DULY ACCOUNTED FOR IN THE REGULAR BOOKS OF ACCOUNT. THE ASSESSEE HAS ALSO CHALLENGED THE ADDITION ON ME RIT. HOWEVER, THE LD.CIT(A) REJECTED BOTH THE ISSUES. SO FAR AS THE LEGAL GROU ND IS CONCERNED, HE HELD THAT THERE IS INCRIMINATING SEIZED DOCUMENTS ON THE BASIS OF WHIC H THE ADDITION OF RS.50 LAKHS WAS MADE. THEREFORE, THE LEGAL GROUND RAISED BY THE AS SESSEE IS NOT SUSTAINABLE. SO FAR AS THE MERIT OF THE CASE IS CONCERNED, HE ALSO DISMISS ED THE GROUND RAISED BY THE ASSESSEE BY OBSERVING AS UNDER:- I HAVE CONSIDERED THE ASSESSMENT ORDER AND WRITTEN SUBMISSION OF LD. AR. AS PER THE DOCUMENT SEIZED REFERRED IN THE ASSESSMENT, NAMELY, PAGE NO. 114 TO 118, ANNEXURE A6/PARTY AO-6, WHICH IS THE VERIFICATION R EPORT OF COMPANY LAW BOARD STATING THAT THE APPELLANT COMPANY HAS PAID R S. 50 LACS ON 20.01.2005 TO M/S SHYAM SUNDER CHARITABLE TRUST. THEREFORE, PAYME NT MADE BY THE APPELLANT COMPANY IS CONCLUSIVE. DURING ASSESSMENT PROCEEDING S, THE APPELLANT COMPANY HAS NOT OBJECTED THE TRUTHFULNESS OF THE PAYMENT. T HE APPELLANT COMPANY HAS CONTENDED THAT IT HAS RECEIVED ADVANCE FROM VARIOUS PERSONS FOR MAKING ADVANCE OF RS. 50 LACS TO M/S SHYAM SUNDER CHARITABLE TRUS T AND NECESSARY ENTRIES COULD NOT BE MADE. NOW, AT APPELLANT STAGE, LD. AR IS TAK ING THE STAND THAT RS. 50 LACS WAS ONLY PAID AND THE MATTER IS SUBJUDICE AND BALAN CE RS. 50 LACS WAS NOT PAID. AS PER SEIZED MATERIAL THE PAYMENT IS RS 50 LACS AL ONGWITH SPECIFIC DATE. THEREFORE, THE QUESTION OF TOTAL PAYMENT AND BALANC E PAYMENT DOES NOT ARISE. THE FACT IS RS. 50 LACS AS PER THE SEIZED DOCUMENT WAS PAID BY THE APPELLANT COMPANY WHICH IS NOT RECORDED IN THE BOOKS OF ACCOUNTS. HEN CE, THE SOURCE REMAINS UNEXPLAINED. KEEPING THE ENTIRE FACTS AND CIRCUMSTA NCES OF THE CASE, I CONFIRM THE ADDITION MADE BY A.O. TO THE TUNE OF RS. 50 LAC S. THIS GROUND OF APPEAL IS HEREBY DISMISSED. ITA NOS.3245, 3248 & 3250/DEL/2013 5 6. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE AS SESSEE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GROUNDS:- 1. THAT THE LEARNED CIT(A) ERRED IN UPHOLDING THE VALIDITY OF THE ASSESSMENT ORDER PASSED U/S 153A/143(3) OF THE ACT IN SPITE OF THE FACT THAT NO SEARCH U/S132(1) OF THE ACT WAS INITIATED ON THE AP PELLANT OR DOCUMENTS OR ANY ASSETS OF THE APPELLANT WERE REQUISITIONED U/S 132A OF THE ACT WITHOUT PREJUDICE TO GROUND NO.1 ABOVE, 2. THAT THE LEARNED CIT(A) FAILS TO APPRECIATE THE FACT THAT THE APPELLANT COMPANY HAS ALREADY BEEN ASSESSED U/S 143(3) OF THE ACT VIDE ASSESSMENT ORDER DT.02 NOV, 2007 AND ADDITION OF RS.3,49,475/- WAS M ADE ON ACCOUNT OF UNEXPLAINED CREDITORS AND THEREFORE, ASSESSMENT NOW MADE U/S153A /143(3) OF THE ACT ON DIFFERENT INCOME, WITHOUT REFERENCE TO A NY SEIZED DOCUMENT, IS NOT VALID AND AGAINST THE VARIOUS JUDICIAL PRECEDENTS. 3. THAT THE LEARNED CIT(A) ERRED IN UPHOLDING ADDIT ION OF RS.51,98,060/- IN SPITE OF THE FACT THAT NO INCRIMINATING DOCUMENT HAS BEEN SEIZED U/S 132(1) OF THE ACT AND THE DOCUMENTS RELIED BY THE ASSESSING O FFICER FOR MAKING ADDITION IN THE ASSESSMENT U/S 153A/143(3) OF THE ACT, WERE DUL Y ACCOUNTED FOR IN THE REGULAR BOOKS OF ACCOUNTS. 4. THAT THE LEARNED CIT(A) ERRED IN UPHOLDING ADDIT ION OF RS.50,00,000/- ON ACCOUNT OF ADVANCE TO M/S SHYAM SUNDER CHARITABL E TRUST WITHOUT CONSIDERING THE FACTS OF THE CASE AND WITHOUT GIVIN G ADEQUATE OPPORTUNITY TO THE APPELLANT TO JUSTIFY ITS CLAIM. 5. THAT THE LEARNED CIT(A) ERRED IN UPHOLDING THE C ONTENTIONS OF ASSESSING OFFICER IN CHALLENGING THE GENUINENESS OF THE VARIOUS LIABILITIES AMOUNTING TO RS.1,98,060/- SHOWN UNDER THE HEAD CU RRENT LIABILITIES BY THE APPELLANT AS THE SAID AMOUNTS WERE RECEIVED IN THE PRECEDING YEARS. 6. THAT THE LEARNED CIT(A) ERRED IN UPHOLDING THE A SSESSMENT U/S 153A/143(3) OF THE ACT WITHOUT GIVING REASONABLE OP PORTUNITY OF BEING HEARD TO THE APPELLANT. 7. THAT THERE WAS NO JUSTIFICATION FOR LEVYING OF I NTEREST U/S 234A AND 234B OF THE ACT ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND AS PER LAW. 8. WITHOUT PREJUDICE TO THE GROUND NO. 7, INTEREST U/S 234A AND 234B OF THE ACT HAS BEEN WRONGLY CALCULATED AS THE STARTING DATE FOR CALCULATION SHOULD HAVE BEEN THE DATE OF ASSESSMENT ORDER U/S 143(3) O F THE ACT. THE CREDIT FOR THE TAX PAID HAS BEEN GIVEN ONLY FOR RS.35,38,184/- AGA INST RS.38,67,221/-(INCLUDING RS. 2,71,929/- PAID AS REGULAR ASSESSMENT. ITA NOS.3245, 3248 & 3250/DEL/2013 6 9. THAT THE APPELLANT CRAVES LEAVE TO ADD TO, ALTER, A MEND, MODIFY, SUBSTITUTE, DELETE AND/OR RESCIND ALL OR ANY OF THE GROUNDS OF APPEAL ON/OR BEFORE THE FINAL HEARING. 10. THAT THE ORDERS OF THE ASSESSING OFFICER & CIT(APPE ALS) ARE NOT BASED ON THE FACTS OF THE CASE & AS PER LAW AND HENCE ADD ITIONS SUSTAINED BY THE CIT(APPEALS) ARE TOTALLY ILLEGAL AND NOT BASED ON B INDING JUDICIAL PRECEDENTS. 7. THE LD. COUNSEL FOR THE ASSESSEE STRONGLY CHALLE NGED THE ORDER OF THE CIT(A). HE SUBMITTED THAT THE ORIGINAL ASSESSMENT IN THIS C ASE WAS COMPLETED U/S 143(3) OF THE ACT ON A TOTAL INCOME OF RS.1,01,98,710/- ON 2 ND NOVEMBER, 2007 AGAINST THE RETURNED INCOME OF RS.96,69,150/-. A SEARCH AND SEIZURE OPE RATION U/S 132(1) OF THE ACT WAS CONDUCTED ON 30 TH JULY, 2009 ON RAMPRASTHA GROUP OF COMPANIES WHOSE REGISTERED OFFICES WERE LOCATED AT C-10, C BLOCK MARKET, VASAN T VIHAR, NEW DELHI AND THEIR CORPORATE OFFICE AT 114, SECTOR-44, GURGAON. HE SU BMITTED THAT THE REGISTERED OFFICE OF THE ASSESSEE COMPANY I.E., RAMPRASTHA BUILDERS PVT. LTD. IS AT B-23, 25 KAILASH COLONY, NEW DELHI AND CORPORATE OFFICE IS AT C-165, RAMPRASTHA COLONY, GHAZIABAD. THERE IS NO OTHER PLACE OF BUSINESS OF THE SAID COM PANY IN DELHI OR ANY OTHER PLACE IN INDIA. HE SUBMITTED THAT ONLY A SURVEY ACTION U/S 133A OF THE ACT WAS CONDUCTED AT B- 23, 25 KAILASH COLONY, NEW DELHI AND AT CORPORATE OFFICE AT C-165, RAMPRASTHA COLONY, GHAZIABAD. THEREFORE, WHEN THERE WAS NO SE ARCH AT THE PREMISES OF THE ASSESSEE AT B-23, 25 KAILASH COLONY, NEW DELHI, U/ S 132(1) OF THE ACT AS THERE IS NO PANCHNAMA OTHER THAN THE PANCHNAMA PREPARED U/S 133 A, THEREFORE, THE ASSESSING OFFICER COULD NOT HAVE COMPLETED THE ASSESSMENT U/S 153A/143(3). HE SUBMITTED THAT DURING THE APPELLATE PROCEEDINGS BEFORE THE CIT(A), THE ASSESSEE HAS CHALLENGED THE ITA NOS.3245, 3248 & 3250/DEL/2013 7 VALIDITY OF THE ASSESSMENT ORDER U/S 153A AS THERE WAS NO SEARCH U/S 132(1) OF THE ACT ON ANY OF THE BUSINESS PREMISES OF THE ASSESSEE COM PANY AND ONLY SURVEY PROCEEDINGS U/S 133A OF THE ACT WAS CONDUCTED. HOWEVER, THE LD .CIT(A) WITHOUT ANY VALID REASONS, HAS UPHELD THE ACTION OF THE ASSESSING OFF ICER. 7.1 REFERRING TO THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF ACIT VS. SARVMANGALAM BUILDERS & DEVELOPERS PVT. LTD., V IDE ITA NO.196 TO 198/DEL/2011 AND VICE VERSA , HE SUBMITTED THAT THE TRIBUNAL HAS HELD THAT SINC E NO SEARCH WAS CONDUCTED IN THE PREMISES OF THE ASSESSEE AND THE S EARCH CONDUCTED ON THE PREMISES NOT OWNED BY THE ASSESSEE THEREFORE THE PROCEEDINGS U/S 153A OF THE ACT ARE INVALID AND BAD IN LAW. HE SUBMITTED THAT THE ABOVE DECISI ON OF THE TRIBUNAL HAS BEEN UPHELD BY THE DELHI HIGH COURT VIDE ITA 943 TO 945/2015 . HE ALSO RELIED ON VARIOUS OTHER DECISIONS FILED IN THE PAPER BOOK AND SUBMITTED THA T WHEN THERE IS NO SEARCH TOOK PLACE AND ONLY SURVEY U/S 133A WAS CONDUCTED, THE ASSESSM ENT U/S 153A/143(3) IS INVALID, ILLEGAL AND VOID AB INITIO . 7.2 SO FAR AS THE MERIT OF THE CASE IS CONCERNED, H E SUBMITTED THAT THE AUDIT REPORT AS MENTIONED BY THE ASSESSING OFFICER IS ONLY A DRAFT AUDIT REPORT WITHOUT ANY SIGNATURE WHICH WAS FOUND DURING THE COURSE OF THE SURVEY. H E SUBMITTED THAT THE ORIGINAL ASSESSMENT U/S 143(3) WAS COMPLETED BEFORE THE SURV EY TOOK PLACE, THEREFORE, THAT ASSESSMENT ORDER CAN BE DISTURBED ONLY WHEN SOME IN CRIMINATING MATERIAL OR DOCUMENT IS FOUND OR COMES TO THE NOTICE OF THE ASS ESSING OFFICER. HE SUBMITTED THAT THE DRAFT AUDIT REPORT CANNOT BE CALLED AS AN INCRI MINATING DOCUMENT AT ALL BECAUSE IT IS ITA NOS.3245, 3248 & 3250/DEL/2013 8 AN UNSIGNED DOCUMENT OR AUDIT REPORT AND, THEREFORE , MUCH CREDENCE CANNOT BE GIVEN TO THE SAME. REFERRING TO PAGE 129 OF THE PAPER BO OK, HE SUBMITTED THAT THE AUDITORS M/S K.C. JAIN & CO. HAS WRITTEN TO THE DIRECTORS OF RAMPRASTHA BUILDERS PVT. LTD. THAT IT IS ONLY A DRAFT REPORT AND THEY HAVE ASKED FOR T HE COMMENTS ON THE SAME. HE ACCORDINGLY SUBMITTED THAT THE DRAFT AUDIT REPORT C ANNOT BE CALLED AS INCRIMINATING MATERIAL. OTHERWISE ALSO, THE LD. COUNSEL FOR THE A SSESSEE SUBMITTED THAT THE AUDIT REPORT WAS FOUND AND SEIZED DURING THE COURSE OF SURVEY U/ S 133A OF THE ACT ON THE CORPORATE OFFICE OF THE ASSESSEE SITUATED AT C-165, RAMPRASTH A COLONY, GHAZIABAD. REFERRING TO PAGE 108 OF THE PAPER BOOK, HE SUBMITTED THAT AS PE R THE PETITION FILED BY SHRI BALWANT SINGH, DIRECTOR, ON BEHALF OF THE RBPL, IT IS MENTI ONED THEREIN THAT A TOTAL SUM OF RS.1 CRORE HAS BEEN PAID TO THE SAID TRUST THE DETAILS O F WHICH ARE AS UNDER:- CHEQUE NO./PAY ORDER DATE AMOUNT (RS.) 898503 (CHEQUE) 27/01/2005 5,000,000 589557 (PAY ORDER) 27/01/2005 1,000,000 589558 (PAY ORDER) 27/01/2005 1,000,000 589559 (PAY ORDER) 27/01/2005 1,000,000 589560 (PAY ORDER) 27/01/2005 1,000,000 589561 (PAY ORDER) 27/01/2005 1,000,000 8. THE ABOVE AMOUNT OF RS.50 LAKHS PAID BY FIVE PAY ORDERS HAS NOT BEEN FOUND TO BE RECORDED IN THE BOOKS OF ACCOUNT OF RBPL. REFER RING TO THE AUDIT REPORT, HE SUBMITTED THAT NEITHER ANY DOCUMENT HAS BEEN SEIZED DURING THE COURSE OF SURVEY WHICH INCORPORATES SUCH DETAILS NOR THE DRAFT AUDIT REPORT EXPLAINS FROM WHICH ITA NOS.3245, 3248 & 3250/DEL/2013 9 DOCUMENT THE SAID DETAILS WERE PROCURED. HE ACCORDI NGLY SUBMITTED THAT BOTH LEGALLY AS WELL AS FACTUALLY THE ADDITION IS NOT SUSTAINABLE. 9. THE LD. DR, ON THE OTHER HAND, HEAVILY RELIED ON THE ORDER OF THE CIT(A). HE SUBMITTED THAT THE NAME OF THE ASSESSEE IS APPEARIN G IN THE WARRANT OF AUTHORIZATION U/S 132 OF THE ACT. AS PER THE PANCHNAMA PREPARED AFTE R EXECUTION OF SEARCH WARRANT AT THE PREMISES 7/27, SOUTH PATEL NAGAR, NEW DELHI, TH E NAME OF THE APPELLANT IS NOT APPEARING IN THE PANCHNAMA. HE SUBMITTED THAT THE STATEMENT OF THE DIRECTOR WAS RECORDED U/S 132(4) WITH RESPECT TO ALL GROUP CONCE RNS INCLUDING THE ASSESSEE WHEREIN HE SURRENDERED THE UNDISCLOSED INCOME OF RS.52 CROR ES IN VARIOUS ENTITIES INCLUDING THE ASSESSEE. SURVEY ACTION U/S 133A HAS BEEN CONDUCTE D AT THE OTHER PREMISES OF THE ASSESSEE. THEREFORE, IT CANNOT BE SAID THAT NO SEA RCH HAS TAKEN PLACE IN THE CASE OF THE ASSESSEE. FURTHER, THE ISSUE OF VALIDITY OF SEARCH WAS NEVER RAISED IN THE ASSESSMENT PROCEEDINGS. REFERRING TO VARIOUS DECISIONS, HE SU BMITTED THAT THE ASSESSEE JUST WANTS TO SCUTTLE THE SEARCH PROCEEDINGS BY CREATING A TEC HNICAL ISSUE WHICH CANNOT BE CONSIDERED AT THIS STAGE. HE SUBMITTED THAT THE DR AFT AUDIT REPORT WAS FOUND DURING THE COURSE OF SURVEY WHERE THE AUDITORS HAVE MENTIONED REGARDING THE PAYMENT OF RS.50 LAKHS MADE TO THE TRUST FOR PURCHASE OF LAND. THE ABOVE LAND IS NOT REFLECTED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE, THEREFORE, WHEN T HE ASSESSEE WAS UNABLE TO EXPLAIN THE SOURCE OF SUCH PAYMENT, THE ADDITION MADE U/S 68 OF THE ACT OF RS.50 LAKHS BY THE ASSESSING OFFICER AND UPHELD BY THE CIT(A) IS FULLY JUSTIFIED IN THE FACTS AND CIRCUMSTANCES OF THE CASE. ITA NOS.3245, 3248 & 3250/DEL/2013 10 10. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW. WE FIND WHEN THE APPEALS FOR ASSESSMENT YEARS 2004- 05, 2006-07 AND 2008-09 WERE ARGUED BY THE COUNSEL FOR THE ASSESSEE BEFORE THE TRIBUNAL, IT WAS ARGUED THAT THE ADDITIONS MADE IN THE ASSESSMENT WITHOUT HAVING ANY REFERENCE TO ANY INCRIMINATING MATERIAL SEIZED DURI NG THE COURSE OF SEARCH, SUCH ADDITIONS CANNOT BE SUSTAINED. ONCE THE ASSESSEE H AS ARGUED BEFORE THE TRIBUNAL THAT NO INCRIMINATING MATERIAL WAS FOUND DURING THE COUR SE OF SEARCH, NO ADDITION CAN BE MADE FOR WHICH IT GOT RELIEF. NOW IT CANNOT BACKTR ACK AND SAY THAT NO SEARCH HAS TAKEN PLACE IN THE CASE OF THE ASSESSEE AND ONLY SURVEY A CTION WAS CONDUCTED U/S 153A. WE, THEREFORE, DISMISS THE LEGAL GROUND RAISED BY THE A SSESSEE CHALLENGING THE VALIDITY OF ASSESSMENT FRAMED U/S 153A/143(3). 11. SO FAR AS THE MERIT OF THE CASE IS CONCERNED, NO DO UBT, THE SAME IS MADE ON THE BASIS OF A DRAFT VERIFICATION REPORT. WE FIND SOME FORCE IN THE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESSEE THAT IT IS NOT UNDERSTOOD AS TO FROM WHERE THE AUDITORS GOT THESE FIGURES AND THEY HAVE NOT EXPLAINED FROM WHIC H DOCUMENT THE SAID DETAILS WERE PROCURED. NO SUCH DOCUMENT WAS ALSO SEIZED DURING T HE COURSE OF SEARCH WHICH INCORPORATES SUCH DETAILS. THE AUDITORS HAVE SIMPL Y ASKED FOR SOME COMMENTS FROM THE ASSESSEE. HOWEVER, WHAT COMMENTS WERE GIVEN BY THE ASSESSEE WAS NEITHER FOUND IN THE DRAFT AUDIT REPORT NOR THE ASSESSING OFFICER ASKED DURING THE COURSE OF ASSESSMENT PROCEEDINGS REGARDING THE COMMENTS OF TH E ASSESSEE. IT IS ALSO PERTINENT TO MENTION HERE THAT DURING THE COURSE OF ASSESSMENT P ROCEEDINGS, THE ASSESSEE HAD ITA NOS.3245, 3248 & 3250/DEL/2013 11 SUBMITTED THAT HE HAD OBTAINED CERTAIN AMOUNT FROM OTHERS WHICH WAS GIVEN TO THE TRUST TOWARDS PURCHASE OF LAND AND JOURNAL ENTRIES COULD NOT BE PASSED. SINCE SUCH DETAILS WERE NOT PROVIDED DURING THE COURSE OF ASSE SSMENT PROCEEDINGS, THE ASSESSING OFFICER MADE ADDITION U/S 68 OF THE IT ACT WHICH HA S BEEN UPHELD BY THE CIT(A). CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE A ND IN THE INTEREST OF JUSTICE, WE DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE A SSESSING OFFICER WITH A DIRECTION TO GIVE AN OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE THE SOURCE OF THE AMOUNT OF RS.50 LAKHS PAID AS ADVANCE TOWARDS PURCHASE OF LAND. THE ASSE SSING OFFICER SHALL DECIDE THE ISSUE AS PER FACT AND LAW, AFTER GIVING DUE OPPORTU NITY OF BEING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. THE GROUNDS ON MER IT ARE ACCORDINGLY ALLOWED FOR STATISTICAL PRUPOSES. ITA NO.3248/DEL/2013 (A.Y. 2009-10) 12. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER:- 1. THAT THE LEARNED CIT(A) ERRED IN UPHOLDING THE VALIDITY OF THE ASSESSMENT ORDER PASSED U/S 153A/143(3) OF THE ACT IN SPITE OF THE FACT THAT NO SEARCH U/S132(1) OF THE ACT WAS INITIATED ON THE AP PELLANT OR DOCUMENTS OR ANY ASSETS OF THE APPELLANT WERE REQUISITIONED U/S 132A OF THE ACT WITHOUT PREJUDICE TO GROUND NO.1 ABOVE, 2. THAT THE LEARNED CIT(A) ERRED IN UPHOLDING ADDIT ION OF RS.8,94,487/- (ACTUAL TOTAL OF DIFFERENT AMOUNTS MENTIONED IN THE ASSESSMENT ORDER COMES TO RS.4,40,012/-) IN SPITE OF THE FACT THAT NO INCRIMI NATING DOCUMENT HAS BEEN SEIZED U/S 132(1) OF THE ACT AND THE DOCUMENTS RELIED BY T HE ASSESSING OFFICER FOR MAKING ADDITION IN THE ASSESSMENT U/S 153A/143(3) O F THE ACT, WERE DULY ACCOUNTED FOR IN THE REGULAR BOOKS OF ACCOUNTS. 3. THAT THE LEARNED CIT(A) ERRED IN UPHOLDING THE C ONTENTIONS OF ASSESSING OFFICER FOR CHALLENGING THE GENUINENESS O F THE VARIOUS LIABILITIES ITA NOS.3245, 3248 & 3250/DEL/2013 12 AMOUNTING TO RS.8,94,487/- (ACTUAL TOTAL OF DIFFERE NT AMOUNTS MENTIONED IS THE ASSESSMENT ORDER COMES TO RS.4,40,012/-) SHOWN UNDE R THE HEAD CURRENT LIABILITIES BY THE APPELLANT AS THE SAID AMOUNTS W ERE RECEIVED IN THE PRECEDING YEARS. 4. WITHOUT PREJUDICE TO GROUND NO.2 &3, THAT THE LD . CIT(A) ERRED IN NOT GIVING RELIEF EVEN IN RELATION TO ARITHMETICAL ERRO R OF ADDITION OF RS.8,94,487/- IN PLACE OF RS.4,40,012/- (ACTUAL TOTAL OF DIFFERENT A MOUNTS MENTIONED IN THE ASSESSMENT ORDER COMES TO RS.4,40,012/-) 5. THAT THE LEARNED CIT(A) ERRED IN UPHOLDING THE A SSESSMENT U/S 153A/143(3) OF THE ACT WITHOUT GIVING REASONABLE OP PORTUNITY OF BEING HEARD TO THE APPELLANT. 6. THAT THERE WAS NO JUSTIFICATION FOR LEVYING OF I NTEREST U/S 234A AND 234B OF THE ACT ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND AS PER LAW. 7. WITHOUT PREJUDICE TO THE GROUND NO. 6, INTEREST U/S 234A AND 234B OF THE ACT HAS BEEN WRONGLY CALCULATED AS THE STARTING DATE FOR CALCULATION SHOULD HAVE BEEN THE DATE OF INTIMATION ORDER 143(1) OF TH E ACT. THE CREDIT FOR THE TAX PAID HAS BEEN GIVEN ONLY FOR RS.2,14,22,938/- AGAIN ST RS.2,28,75,485/- PAID BY THE ASSESSEE. 8. THAT THE APPELLANT CRAVES LEAVE TO ADD TO, ALTER, A MEND, MODIFY, SUBSTITUTE, DELETE AND/OR RESCIND ALL OR ANY OF THE GROUNDS OF APPEAL ON/OR BEFORE THE FINAL HEARING. 9. THAT THE ORDERS OF THE ASSESSING OFFICER & CIT(APPE ALS) ARE NOT BASED ON THE FACTS OF THE CASE & AS PER LAW AND HENCE ADD ITIONS SUSTAINED BY THE CIT(APPEALS) ARE TOTALLY ILLEGAL AND NOT BASED ON B INDING JUDICIAL PRECEDENTS. 13. SO FAR AS GROUND OF APPEAL NO.1 IS CONCERNED, THE S AME IS INTER-CONNECTED TO THE GROUND RAISED IN ASSESSMENT YEAR 2005-06. WE HAVE ALREADY DECIDED THE ISSUE AGAINST THE ASSESSEE. FOLLOWING THE SAME REASONING, THIS G ROUND RAISED BY THE ASSESSEE IS DISMISSED. 14. SO FAR AS THE SECOND GROUND IS CONCERNED, I.E., THE ADDITION OF RS.8,94,487/- IS CONCERNED, IT IS THE CASE OF THE LD. COUNSEL THAT T HERE IS A CALCULATION ERROR. WE, ITA NOS.3245, 3248 & 3250/DEL/2013 13 THEREFORE, RESTORE THIS ISSUE TO THE FILE OF THE AS SESSING OFFICER WITH A DIRECTION TO VERIFY THE ARITHMETICAL ERROR IN ADDITION AND PASS SUITABLE ORDER. NEEDLESS TO SAY, THE ASSESSING OFFICER SHALL DECIDE THE ISSUE AFTER AFFO RDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND DECIDE THE ISSUE AS PER FACT AND LAW. SO FAR AS LEVY OF INTEREST U/S 234A AND 234B IS CONCERNED, IT IS THE CASE OF THE LD. COUNSEL FOR THE ASSESSEE THAT THERE IS SOME CALCULATION ERROR AND L ESS CREDIT OF TAX. WE, THEREFORE, DEEM IT PROPER TO RESTORE THIS ISSUE ALSO TO THE FI LE OF THE ASSESSING OFFICER WITH A DIRECTION TO VERIFY THE CORRECTNESS OF THE INTEREST CALCULATION AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE GRO UNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY PARTLY ALLOWED FOR STATISTICAL PURPOSES . ITA NO.3250/DEL/2013 (A.Y. 2010-11) 15. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER:- 1. THAT THE LEARNED CIT(A) ERRED IN UPHOLDING THE VALIDITY OF THE ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT IN AC CORDANCE WITH SECTION 153B OF THE ACT IN SPITE OF THE FACT THAT NO SEARCH U/S1 32(1) OF THE ACT WAS INITIATED ON THE APPELLANT OR DOCUMENTS OR ANY ASSETS OF THE APP ELLANT WERE REQUISITIONED U/S 132A OF THE ACT WITHOUT PREJUDICE TO GROUND NO.1 ABOVE, 2. THAT THERE WAS NO JUSTIFICATION FOR LEVYING OF I NTEREST U/S 234B OF THE ACT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND AS P ER LAW. 3. WITHOUT PREJUDICE TO THE GROUND NO. 2, INTEREST U/S 234A AND 234B OF THE ACT HAS BEEN WRONGLY CALCULATED AS CREDIT OF SE IZED CASH OF RS.50 LACS WHICH WAS TO BE ADJUSTED AS ADVANCE TAX AS REQUESTED BY T HE APPELLANT WAS NOT CONSIDERED. 4. WITHOUT PREJUDICE TO GROUND NO.3 ABOVE, THAT THE LD. CIT(A) ERRED IN NOT ADJUDICATING GROUND OF APPEAL WHEREIN THE APPEL LANT WAS AGGRIEVED AS THE ASSESSING OFFICER ERRED IN NOT PROVIDING CREDIT FOR THE TAX PAID AGAINST ITA NOS.3245, 3248 & 3250/DEL/2013 14 RS.2,11,95,392/- (INCLUDING RS.50,00,000/-) SEIZED BY THE SEARCH PARTY FOR WHICH ADJUSTMENT FOR ADVANCE TAX WAS MADE BY THE ASSESSEE . 5. THAT THE APPELLANT CRAVES LEAVE TO ADD TO, ALTER, A MEND, MODIFY, SUBSTITUTE, DELETE AND/OR RESCIND ALL OR ANY OF THE GROUNDS OF APPEAL ON/OR BEFORE THE FINAL HEARING. 6. THAT THE ORDERS OF THE ASSESSING OFFICER & CIT(APPE ALS) ARE NOT BASED ON THE FACTS OF THE CASE & AS PER LAW AND HENCE ADD ITIONS SUSTAINED BY THE CIT(APPEALS) ARE TOTALLY ILLEGAL AND NOT BASED ON B INDING JUDICIAL PRECEDENTS. 16. THE LD. COUNSEL FOR THE ASSESSEE DID NOT PRESS GROU ND NOS.1, 2 AND 3 FOR WHICH LD. DR HAS NO OBJECTION. ACCORDINGLY, THESE GROUND S ARE DISMISSED. 17. SO FAR AS GROUND NO.4 IS CONCERNED, IT IS THE G RIEVANCE OF THE ASSESSEE THAT CREDIT FOR TAX PAID AGAINST RS.2,11,95,392/- SEIZED BY THE SEARCH PARTY WAS NOT TREATED AS ADVANCE TAX. IN VIEW OF THE CBDT CIRCULAR ISSUED O N 12 TH JUNE, 2017 AND DECISION OF VARIOUS HIGH COURTS AS WELL AS THE COORDINATE BENCH ES OF THE TRIBUNAL WHENEVER ANY AMOUNT IS SEIZED DURING THE COURSE OF SEARCH AND TH E ASSESSEE MOVES AN APPLICATION FOR TREATING SUCH AMOUNT SEIZED AS PAYMENT TOWARDS ADVA NCE TAX, THE SAME HAS TO BE CONSIDERED AS TAX PAID BY THE ASSESSEE AS ADVANCE T AX FROM THE DATE OF MAKING SUCH APPLICATION. SINCE, IN THE INSTANT CASE, THE ASSES SEE HAS MOVED AN APPLICATION FOR TREATING THE SEIZED CASH AS PAYMENT TOWARDS ADVANCE TAX, THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT THE GRIEVANCE OF THE ASSESS EE IS JUSTIFIED. WE FIND THE LD.CIT(A) HAS NOT ADJUDICATED THIS GROUND ALTHOUGH SPECIFICALLY RAISED BEFORE HIM. WE, THEREFORE, DEEM IT APPROPRIATE TO RESTORE THIS ISSUE TO THE FILE OF THE CIT(A) WITH A DIRECTION TO DECIDE THE ISSUE AS PER FACT AND LAW, AFTER GIVING DUE OPPORTUNITY OF BEING ITA NOS.3245, 3248 & 3250/DEL/2013 15 HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDING LY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY PARTLY ALLOWED FOR STATIST ICAL PURPOSES. 18. IN THE RESULT, ALL THE THREE APPEALS FILE D BY THE ASSESSEE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 0 7.05.2019. SD/- SD/- (SUCHITRA KAMBLE) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 07 TH MAY, 2019 DK COPY FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASSTT. REGISTRAR, ITAT, NEW DELHI