TRILOK SINGH DHILLON V. COMMISSIONER OF INCOME TAX

TAXC/155/2010

AI Insights

The case involves multiple tax appeals by Trilok Singh Dhillon against the Commissioner of Income-Tax, Raipur, concerning the legality of a survey conducted under Section 133A at Raipur Airport, which was later converted into a search under Section 132. The appeals also challenged the subsequent assessments and additions made under Sections 68 and 153A. The primary legal issues revolved around the validity of the survey and search procedures, the treatment of certain individuals as benamidars, and the handling of unexplained cash credits. The High Court's decision affirmed the lower authorities' findings, rejecting the assessee's contentions and upholding the assessments made.

• Counselvise Citation: [2010] 140 COUNSELVISE.COM (IT) 752419 (HC-CHHATTISGARH)
• Appeal Type: Others
• Pronouncement Date: 15-10-2010
• Assessment Year: misc
• Other Referred Cases: Union of India Vs. Ajit Jain, CIT Vs. Paras Rice Mill, M.B. Lal Vs. CIT, Gaya Prasad Pathak Vs. ACIT, Lalji Haridas Vs. ITO, Commissioner of Income Tax Vs. Smt. Chitra Dew, Commissioner of Income Tax Vs. J.K. Charitable Trust, Commissioner of Income Tax Vs. Shakti Traders, Commissioner of Income Tax Vs. J.K. Charitable Trust
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: RAJEEV SHRIVASTAVA
• Assessee Lawyers: S RAO
• Keywords: Benami transaction; Income from undisclosed sources; Search; Survey; Unexplained cash credit
• Section: 142(1); 143(2); 271(1)(c); 132; 153A; 68; 153C; 133A

Judgement Text

"^^ APPELLANT (Revenue) HIGH COURT OF CHHATTISGARH AT BILASPUR TAX CASE No. 98 OF 2010 TRILOK SINGH DHILLON S/0 SURTA SINGH DHILLON, 7A/1, NEHRU NAGAR (E) BHILAI (CG) RESPONDENT (Assessee) Vs COMMISSIONER OF INCOME-TAX, RAIPUR And other connected matters '^ JUDGMENT FOR CONSIDERATION •^: Sd/- Dhirendra Mishra Judge -1^-TO-2aTO~ HON'BLE SHRI R.N. CHANDRAKAR. J ou^^-c^e^ '(T Sd/- R.N. Chandrakar Judge 1371072UTCT •f^ POST FOR JUDGMENT ON<50 OCTOBER. 201 Sd/- Dhirendra Mishra Judge ^. 15./10/2010, t^D •^-y HIGH COURT OF CHHATTISGARH AT^ILASPUR CORAM: HON'BLE SHRI DHIRENDRA MISHRA & HON'BLE SHRI R.N. CHANDRAKAR. JJ APPELLANT (Revenue) RESPONDENT (Assessee) APPELLANT (Revenue) RESPONDENT (Assessee) APPELLANT (Revenue) RESPONDENT (Assessee) APPELLANT RESPONDENT APPELLANT (Revenue) RESPONDENT (Assessee) TAX CASE No. 98 OF 2010 TRILOK SINGH DHILLON S/0 SURTA SINGH DHILLON, 7A/1, NEHRU NAGAR (E) BHILAI (CG) Vs COMMISSIONER OF INCOME-TAX, RAIPUR TAX CASE No. 132 OF 2010 PANCHURAM DESHMUKH THROUGH L/R. SMT. SARITA DESHMUKH, PADMANBHPUR, DURG (CG) Vs COMMISSIONER OF INCOME-TAX, RAIPUR TAXCASEN0.1310F2010 SHRI MANHARAN LAL VERMA, S/0 SHRI SHYAM LAL VERMA SANTRABADI, DURG (C.G.) Vs COMMISSIONER OF INCOME-TAX, RAIPUR TAX CASE No. 152 OF 2010 SHRISANJAYVAISHNAV S/0 SHRI BANSIDAS VAISHNAV WD. No. 15, TITURDIH, DURG (C.G.) Vs COMMISSIONER OF INCOME-TAX, RAIPUR TAX CASE No. 130 OF 2010 PANCHURAM DESHMUKH THROUGH L/R. SMT. SARITA DESHMUKH PADMANBHPUR, DURG (C.G.) Vs COMMISSIONER OF INCOME-TAX, RAIPUR ^r' \". 1 ;;^. ^sy '\"^sy APPELLANT (Revenue) RESPONDENT (Assessee) p( TAX CASE No. 151 OF 2010 SHRI SURAJ SHRISVASTAV S/0 SHRI LALOO SHRISTAVA SARASWATI NAGAR, DURG (C.G.) Vs COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) TAX CASE No. 150 OF 2010 SHRI GAUTAM JAGAT, S/0 SHRI SEMI JAGAT SUPELA, BHILAI (C.G.) Vs COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAX CASE No. 149 OF 2010 SHRI GAUTAM JAGAT, S/0 SHRI SEMI JAGAT SUPELA, BHILAI (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAX CASE No. 138 OF 2010 SHRIAMRIKSINGH, S/0 SHRI BHAGWAN SINGH SHANTI NAGAR, KOHKA, BHILAI (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAXCASEN0.1370F2010 SHRI GAUTAM JAGAT, S/0 SHRI SEMI JAGAT SUPELA, BHILAI (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR [OL APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAX CASE No. 136 OF 2010 SHRI GAUTAM JAGAT, S/0 SHRI SEMI JAGAT SUPELA, BHILAI (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAX CASE No. 143 OF 2010 SHRI SANJAY VAISHNAV, S/0 SHRI BANSIDAS VAISHNAV WD. No. 15, TITURDIH, DURG (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAX CASE No. 145 OF 2010 SHRI SANJAY VAISHNAV, S/0 SHRI BANSIDAS VAISHNAV WD. No. 15, TITURDIH, DURG (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAXCASENo. 146 OF 2010 SHRI HARISH CHAND MISHRA, S/0 SHRI KISHANLAL MISHRA SANTRA BADI, DURG (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAX CASE No. 158 OF 2010 SHRI MANHARAN LAL VERMA, S/0 SHRI SHYAM LAL VERMA SANTRA BADI, DURG (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT (Revenue) TAX CASE No. 157 OF 2010 SHRI AMAR SHRIVASTAVA, S/0 SHRI RAJENDRA SHRIVASTAVA SARASWATI NAGAR WARD No. 32, DURG (C.G.) 1° ^^^':y RESPONDENT (Assessee) Vs COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT RESPONDENT TAX CASE No. 156 OF 2010 PANCHURAM DESHMUKH THROUGH L/R. SMT. SARITA DESHMUKH PADMANBHPUR, DURG (C.G.) Vs COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAX CASE No. 97 OF 2010 SHRI GANESH GAJBHIYE, S/0 SHRI TARACHAND GAJBJIYE WD. No. 17, TITURDIH, DURG (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAXCASEN0.990F2010 SHRI MANOJ KUMAR CHELAK, S/0 SHRI B.D.CHELAK PRIYADARSHINI PARISAR, BHILAI, (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAX CASE No. 100 OF 2010 SHRI KULBHUSAM SHARMA, S/0 SHRI JAGDHISH CHAND SHARMA JAWAHAR NAGAR, BHILAI (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT RESPONDENT Vs TAX CASE No. 90 OF 2010 SHRI YUVRAJ SINGH MANE S/0 KACHRU MANE, DURG(C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR f^ APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAX CASE No. 106 OF 2010 SHRI SANDEEP KUMAR CHOUHAN, S/0 SHRI DEVENDRA NATH CHOUHAN SANTRA BADI, DURG (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAXCASEN0.890F2010 SHRI KULBHUSHAN SHARMA, S/0 SHRI JAGDHISH CHAND SHARMA JAWAHAR NAGAR,BHILAI (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAXCASEN0.880F2010 SHRI GAUTAM JAGAT, S/OSHRI SEMI JAGAT SUPELA, BHILAI (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAX CASE No. 139 OF 2010 SHRI SANJAY VAISHNAV, S/0 SHRI BANSIDAS VAISHNAV WD. No. 15, TITURDIH, DURG (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAX CASE No. 141 OF 2010 SHRIAMRIKSINGH, S/0 SHRI BHAGWAN SINGH SHANTI NAGAR, KOHKA, BHILAI (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAX CASE No. 118 OF 2010 SHRI GAUTAM JAGAT, S/0 SHRI SEMI JAGAT SUPELA, BHILAI (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR t^\" APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAX CASE No. 140 OF 2010 SHRI SANJAYVAISHNAV, S/0 SHRI BANSIDAS VAISHNAV WD. No. 15, TITURDIH,DURG (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAX CASE No. 119 OF 2010 SHRI GANESH GAJBHIYE, S/0 SHRI TARACHAND GAJBHIYE WD. No. 17, TITURDIH, DURG (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAX CASE No. 120 OF 2010 SHRIGANESH GAJBHIYE, S/0 SHRI TARACHAND GAJBHIYE WD. No. 17, TITURDIH, DURG (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAX CASE No. 142 OF 2010 SHRI SANJAYVAISHNAV, S/0 SHRI BANSIDAS VAISHNAV WD. No. 15, TITURDIH, DURG (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) APPELLANT (Revenue) RESPONDENT (Assessee) Vs Vs TAX CASE No. 121 OF 2010 SHRI GANESH GAJBHIYE, S/0 SHRI TARACHAND GAJBHIYE WD. No. 17, TITURDIH, DURG (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR TAX CASE No. 80 OF 2010 SHRI KULMEET SINGH, S/0 SHRI VIKRAM SINGH BATRA SANTRA BADI, DURG (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR loi, APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAXCASEN0.960F2010 SHRI MANHARAN LAL VERMA, S/0 SHRI SHYAM LAL VERMA SANTRABADI, DURG (C.G.) COMMISSIONER OF INCQME-TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAX CASE No. 79 OF 2010 SHRI KAMLESH KUMAR CHANDEL, S/0 SHRI BHAGCHAND CHANDEL BAGIYA HOTEL, TITURDIH, DURG (C.G.) COMMISSIONER QF INCOME-TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAXCASEN0.780F2010 SHRI MANOJ KUMAR CHELAK, S/0 SHRI B.D.CHELAK PRIYADARSHINI PARISAR, BHILAI (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAXCASEN0.870F2010 SHRI GAUTAM JAGAT, S/0 SHRI SEMIJAGAT SUPELA, BHILAI (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) APPELLANT (Revenue) RESPONDENT (Assessee) Vs Vs TAXCASEN0.760F2010 SHRI AMAR SHRIVASTAVA, S/OSHRI RAJENDRA SHRIVASTAVA SARASWATI NAGAR, WARD No. 32, DURG (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR TAX CASE No. 75 OF 2010 SHRI RAMASHRE PRAJAPATI, S/0 SHRI JALESHWAR PRAJAPATI JAWAHAR NAGAR.BHILAI (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR lo7 APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAX CASE No. 77 OF 2010 SHRI BALBIR SINGH, S/0 SHRI RAM SINGH PADMANABHPUR, DURG (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAX CASE No. 162 OF 2010 SHRI HARISH CHAND MISHRA, S/0 SHRI KISHANLAL MISHRA SANTRA BADI, DURG (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAX CASE No. 86 OF 2010 SHRI VINAY SINGH, S/0 SHRI RAMVILAS SINGH SANTRA BADI, DURG (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) APPELLANT (Revenue) RESPONDENT (Assessee) APPELLANT (Revenue) RESPONDENT (Assessee) Vs Vs Vs TAXCASEN0.910F2010 SHRI AMAR SHRIVASTAVA, S/0 SHRI RAJENDRA SHRIVASTAVA SARASWATI NAGAR, WARD No.32, DURG (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR TAX CASE No. 85 OF 2010 SHRI BHUPENDER SINGH, S/0 SHRI SWARAN SINGH SUPELA,BHILAI (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR TAX CASE No. 92 OF 2010 TRILOK SINGH DHILLON S/0 SURTA SINGH DHILLON, 7A/1,NEHRUNAGAR(E). BHILAt (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR ^•^^^^^ II 9 APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAX CASE No. 84 OF 2010 SHRI BHUPENDER SINGH, S/0 SHRI SWARAN SINGH SUPELA, BHILAI (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAXCASEN0.930F2010 SHRI MANHARAN LAL VERMA, S/0 SHRI SHYAM LAL VERMA SANTRA BADI, DURG (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAX CASE No. 83 OF 2010 SHRIBHUPENDERSINGH, S/0 SHRISWARAN SINGH SUPELA, BHILAI (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAXCASEN0.810F2010 SHRI BHUPENDER SINGH, S/0 SHRI SWARAN SINGH SUPELA, BHILAI (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs TAX CASE No. 82 OF 2010 SHRIBHUPENDERSINGH, S/0 SHRI SWARAN SINGH SUPELA, BHILAI (C.G.) COMMISSIONER OF INCOME-TAX, RAIPUR APPELLANT (Revenue) TAX CASE N0.108 OF 2010 SHRI HARISH CHAND MISHRA, S/0 SHRI KISDHANLAL MISHRA, SANTRA BADI, DURG (CG) Vs. 10 :.°? RESPONDENT (Assessee) COMMISSIONER OF INCOME TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) TAX CASE N0.126 OF 2010 SHRI MANHARAN LAL VERMA, S/0 SHRI SHYAM LAL VERMA, SANTRA BADUI, DURG (CG) Vs. COMMISSIONER OF INCOME TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) TAX CASE N0.129 OF 2010 PANCHURAM DESHMUKH THROUGH L/R. SMT SARITA DESHMUKH, PADMANBHPUR, DURG (CG) Vs. COMMISSIONER OF INCQME TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) TAX CASE N0.155 OF 2010 TRILOK SINGH DHILLON, S/0 SURTA SINGH DHILLON, 7A/1, NEHRU NAGAR (E), BHILAI (CG) Vs. COMMISSIONER OF INCOME TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) TAX CASE N0.111 OF 2010 SHRI KULBHUSHAN SHARMA, S/0 SHRI JAGDHISH CHAND SHARMA JAWAHAR NAGAR, BHILAI (CG) Vs. COMMISSIONER OF INCOME TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) TAX CASE N0.112 OF 2010 SHRI HARISH CHAND MISHRA, S/0 SHRI KISHANLAL MISHRA, SANTRA BADI, DURG (CG) Vs. COMMISSIONER OF INCOME TAX, RAIPUR 11 TAX CASE N0.128 OF 2010 Ifo APPELLANT (Revenue) RESPONDENT (Assessee) Vs. SHRI DHANIYA BHANDIWAR, S/0 LAVAIYA BHANDIWAR, TITURDIH, DURG (CG) COMMISSIONER OF INCOME TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) TAX CASE N0.134 OF 2010 SHRI AMRIK SINGH, S/0 SHRI BHAGWAN SINGH, SHANTI NAGAR, KOHKA, BHILAI (CG) Vs. COMMISSIONER OF INCOME TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs. TAX CASE N0.107 OF 2010 SHRI ARUN KUMAR TIWARI, S/0 SHRI SATYANARAYAN TIWARI, SANTRA BADI, DURG (CG) COMMISSIONER OF INCOME TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs. TAX CASE N0.135 OF 2010 SHRI SANJAY VAISHNAV, S/0 SHRI BANSIDAS VAISHNAV, WD. N0. 15, TITURDIH, DURG (CG) COMMISSIONER OF INCOME TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) TAX CASE N0.159 OF 2010 Shri Kulmeet Singh, S/o Shri Vikram Singh Batra, • Santra Badi, Durg (CG) Vs. COMMISSIONER OF INCOME TAX, RAIPUR APPELLANT TAXCASE N0.94 OF 2010 SHRI MANHARAN LAL VERMA, S/0 SHRI SHYAM LAL VERMA, SANTRA BADI, DURG (CG) 12 [[ RESPONDENT Vs. COMMISSIONER OF INCOME TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) TAX CASE N0.147 OF 2010 SHRI AMRIK SINGH, S/0 SHRI BHAGWAN SINGH, SHANTI NAGAR, KOHKA, BHILAI (CG) Vs. COMMISSIONER OF INCOME TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs. TAX CASE N0.95 OF 2010 SHRI TRILOK SINGH DHILLON, S/0 SHRI SURTA SINGH DHILLON, 7A/1, NEHRU NAGAR (E), BHILAI (CG) COMMISSIONER OF INCOME TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) TAX CASE N0.113 OF 2010 SHRI GANESH GAJBHIYE, S/0 SHRI TARACHAND GAJBHIYE, WARD N0.17, TITURDIH, DURG(CG) Vs. COMMISSIONER OF INCOME TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) TAX CASE N0.127 OF 2010 SHRI BHUPENDER SINGH S/0. SHRI SWARAN SINGH SUPELA, BHILAI (C.G.) Vs. COMMISSIONER OF INCOME TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) TAX CASE N0.125 OF 2010 SHRI RAMASHRE PRAJAPATI, S/0. SHRI JALESHWAR PRAJAPATI, JAWAHAR NAGAR, BHILAI (C.G.) Vs. COMMISSIONER OF INCOME TAX, RAIPUR 13 (t APPELLANT (Revenue) RESPONDENT (Assessee) Vs. TAX CASE N0.123 OF 2010 SHRI HARISH CHAND MISHRA, S/0. SHRI KISHANLAL MISHRA, SANTRA BADI, DURG (C.G.) COMMISSIONER OF INCOME TAX, RAIPUR ^ APPELLANT (Revenue) RESPONDENT (Assessee) Vs. TAXCASEN0.1140F2010 SHRI GANESH GAJBHIYE, S/0. SHRI TARACHAND GAJBHIYE, WARD N0.17, TITURDIH, DURG (C.G.) COMMISSIONER OF INCOME TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs. TAX CASE N0.115 OF 2010 SHRI HARISH CHAND MISHRA, S/0. SHRI KISHANLAL MISHRA, SANTRA BADI, DURG (C.G.) COMMISSIONER OF INCOME TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs. TAX CASE N0.116 OF 2010 SHRI GANESH GAJBHIYE, S/0. SHRI TARACHAND GAJBHIYE, WARD N0.17, TITURDIH, DURG (C.G.) COMMISSIONER OF INCOME TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs. TAX CASE N0.117 OF 2010 SHRI AMRIK SINGH, S/0. SHRI BHAGWAN SINGH SHANTI NAGAR, KOHKA, BHILAI (C.G.) COMMISSIONER OF INCOME TAX, RAIPUR 14 l Z APPELLANT (Revenue) RESPONDENT (Assessee) Vs. TAX CASE N0.124 OF 2010 SHRI RAMASHRE PRAJAPATI, S/0. SHRI JALESHWAR PRAJAPATI, JAWAHAR NAGAR, BHILAI (C.G.) COMMISSIONER OF INCOME TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) TAXCASEN0.1220F2010 SHRI VINAY SINGH, S/0. SHRI RAMVILAS SINGH, SANTRA BADI, DURG (C.G.) Vs. COMMISSIONER OF INCOME TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs. TAX CASE N0.163 OF 2010 SHRI KAMLESH KUMAR CHANDEL, S/0. SHRI BHAGCHAND CHANDEL, BAGIYA HOTEL, TITURDIH, DURG (C.G.) COMMISSIONER OF INCOME TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs. TAX CASE N0.165 OF 2010 SHRI ARUN KUMAR TIWARI, S/0. SHRI SAT»'ANARAYAN TIWARI, SANTRA BADI, DURG (C.G.) COMMISSIONER OF INCOME TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs. TAX CASE N0.74 OF 2010 SHRI MANHARAN LAL VERMA, S/0. SHRI SHYAMLAL VERMA, SANTRA BADI, DURG (C.G.) COMMISSIONER OF INCOME TAX, RAIPUR r^ f ^.^ \"^ i tl ^!^ I \"• '^ i ...^ •^,-.^^! APPELLANT (Revenue) RESPONDENT (Assessee) Vs. 15 TAX CASE N0.164 OF 2010 TRILOK SINGH DHILLON, S/0. SURTA SINGH DHILLON, 7A/1, NEHRU NAGAR (E), BHILAI (CG) COMMISSIONER OF INCOME TAX, RAIPUR w APPELLANT RESPONDENT Vs. TAX CASE N0.161 OF 2010 SHRI AMRIK SINGH, S/0. SHRI BHAGWAN SINGH SHANTI NAGAR, KOHKA, BHILAI (C.G.) COMMISSIONER OF INCOME TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) TAX CASE N0.160 OF 2010 SHRI YUVRAJ SINGH MANE, S/0. KACHRU MANE, DURG (C.G.) Vs. COMMISSIONER OF INCOME TAX, RAIPUR APPELLANT (Assessee) RESPONDENT (Revenue) Vs. TAX CASE N0.72 OF 2010 TRILOK SINGH DHILLON, S/0. SURTA SINGH DHILLON, 7A/1, NEHRU NAGAR (E), BHILAI DISTT. DURG (CG) COMMISSIONER OF INCOME TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) TAX CASE N0.154 OF 2010 SHRI ARUN KUMAR SARTHI, S/0 SHRI DEOSHARAN SARTHI, JAWAHAR NAGAR, BHILAI Vs. COMMISSIONER OF INCOME TAX, RAIPUR T;.. 16 CU\" APPELLANT (Revenue) RESPONDENT (Assessee) Vs. TAX CASE N0.153 OF 2010 TRILOK SINGH DHILLON, S/0. SURTA SINGH DHILLON, 7A/1, NEHRU NAGAR (E), BHILAI (CG) COMMISSIONER OF INCOME TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) TAX CASE N0.110 OF 2010 SHRI BHUPENDER SINGH S/0. SHRI SWARAN SINGH SUPELA, BHILAI (C.G.) Vs. COMMISSIONER OF INCOME TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) Vs. TAX CASE N0.109 OF 2010 SHRI HARISH CHAND MISHRA, S/0. SHRI KISHANLAL MISHRA, SANTRA BADI, DURG (C.G.) COMMISSIONER OF INCOME TAX, RAIPUR APPELLANT (Revenue) RESPONDENT (Assessee) TAX CASE N0.144 OF 2010 SHRI AMRIK SINGH, S/0. SHRI BHAGWAN SINGH SHANTI NAGAR, KOHKA, BHILAI (C.G.) Vs. COMMISSIONER OF INCOME TAX, RAIPUR Present: Shri S. Rajeshwara Rao, counsel forthe appellant. Shri Rajeev Shrivastava, counsel for the respondent. I? f i ^ JUDGMENT (Delivered on^^October, 2010) Per Dhirendra Mishra, J: These tax appeals under Section 260A of the Income Tax Act, 1961 preferred by assessee & cross objectors are being disposed of by this common judgment as they are directed against the common order dated 29 March, 2010 passed by the Income Tax Appellate Tribunal, Bilaspur, Bench Bilaspur (in short \"the Tribunal\"), by which all the connected appeals preferred by the revenue, assessee and cross objectors have been disposed of. 02. With the consent of learned counsel for the parties, all these appeals were heard for disposal at the admission stage. 03. For the purposes of this order, facts of Tax Case No.98/10, Trilok Singh Dhillon Vs. Commissioner of Income Tax, pertaining to assessment year 2005-06 and the substantial questions of law proposed in the Memo of Appeal, shall be referred until and unless specific reference is made to the other tax cases. 04. The appellant/assessee has preferred this appeal (Tax Case No.98/10) on the following substantial questions of law: \"1. Whether survey u/s 133A can be conducted at Airport on a person getting out of aircraft instead of search u/s. 132(1)(B)(iia) exclusively provided for such circumstances and if not, whether the survey and all the subsequent proceedings which followed such survey are valid, specifically keeping in view the law laid down by the Hon'ble Supreme Court in the case of Union of India Vs. Ajit Jain (2003) 260 ITR 80 (SC)? •n> 1% 2. Whether in the facts and circumstances of the case, the assessment order was made on the basis of instructions and dictates of other authorities and if so whether such assessment is not bad in law? 3. Whether the order of the Id. Tribunal is perverse with respect to restoring the issue of addition of Rs.24,85,000/- being cash found in the possession of the appellant, particularly when the sources of the same were satisfactorily explained and when the addition was made without any corroborative material? 4. Whether the order of the learned Appellate Tribunal, in the facts and circumstances of the case, is perverse with respect to treating various persons as benamidars of Shri Trilok Singh Dhillon, a co-partner, without disputing the genuineness of the firm, which has advanced the money, without questioning the genuineness of sources of the money advanced, when the borrowings were interest bearing, when the interest income was separately assessed in the hands of the firm/other partners, when the other persons were not treated as benamidars of the other partners who stand on the same plank as the appeltant with respect to their capital contribution in the firm and loaned to the appellant, when the Excise License was issued by the Excise Department in the names of different persons, when the Excise Department certified the execution of license by them and when those persons owned the business and offered the income to tax in their individual capacity? 5. Whether the ITAT is legally correct in confirming the addition of Rs.22,13,218/- made u/s. 68 as unexplained cash credit, especially when the gift was received with the rider that if the same was not recognized as gift for any reasons, the same shall be returnable to the donor, whose identity and creditworthiness and genuineness of the transaction were substantiated by the appellant? 05. Briefly stated, facts of the case are that on 24th August, 2004 assessee was carrying Rs.24,85,000/- in cash white travelling from l^ lc) Mumbai to Raipurby flight. Information to this effect was received from the Investigation Wing of Bombay. hle was intercepted at Mana Airport and his statement was recorded at the Airport. Later on, survey under Section 133A of the Income Tax Act, 1961 (in short \"the Act\") was conducted in the business premises ofthe assessee. In his statement, the assessee admitted that the cash found in hisbrief case is his income from undisclosed sources. Thereafter, survey was converted into search and the cash was seized. However, assessee retracted his statement by filing an affidavit on 7th December, 2005 wherein he stated that he surrendered the entire amount of Rs.24,85,000/- as his unexplained income for the assessment year-2005-06 since he was compelled by the income tax authorities. His explanation that he withdrew the above sum from his wife's cash balance from M/s Carole Barter (P) Ltd. was disregarded. The assessee filed return of income for the assessmenf year 2005-06 on 23rd November, 2006 showing total income of Rs.28,94,020/- and agricultural income of Rs.85,000/- and the assessment was completed on a total income of Rs.5,68,78,983/-. This assessment foltowed the assessment under Section 153A for the preceding six assessment years. The AO also issued notice under Section 153C read with Section 153A of the Act on 16.2.2005. An objection was raised by the assessee on the ground that the above notices were issued without requisite satisfaction and subsequently, the Objection regarding lack of jurisdiction was agitated before the Commissioner, Income Tax (Appeals) {in short \"CIT(A)\"} under Section 144. However, assessee filed return of income under protest. The AO f/^ 2LO issued notices under Section 143(2) and 142(1) and again issued another notice under Section 1 53A read with Section 1 53C on 4.9.2006. 06. The AO did not entertain explanation of the assessee through affidavit sworn on 7 December, 2005 on the ground that it was offered after 16 months and from the statement of the notary, it is clear that the affidavit is an afterthought. Contention of the assessee that there is no material to show that the assessee earned undisclosed income, which was found during the course of search, it was held that the assessee was engaged in liquor business in benami names, as detailed in the assessment order for the assessment year 1999-2000, which goes to show that the assessee is making income from undisclosed sources. The stand of the assessee was inconsistent. The assessee was not aware about the place of availability of books of account of M/s Carol Barter (P) Ltd., ofwhich he is the principal Director. Accordingly, his explanation that the cash amount seized from him is cash balance which he had withdrawn from M/s Carol Barter (P) Ltd. in connection with purchase of some property at Mumbai, has been rejected, and the amount of Rs. 24,85,0007- was assessed as undisclosed income of the assessee. The AO by reference to assessment order of the assessment year 1999-2000 rejected the claim of agricultural income of Rs.85,000/- and also assessed income of 35 benamidars of Rs.4,72,31,3107- in the hands of the assessee on substantive basis. The expenditure of Rs.18,41,758/- being amount of bills of Adarsh Service Station, Supela, Bhilai, seized during search proceedings issued in the name of different persons, has been assessed in the hands of assessee as unexplained expenditure with a [^ ^r finding that the same was unexplained expenditure of the assessee through benamidars. Similarly, an amount of Rs.18,096/-, on the basis of details mentioned in three papers found from the room of Manoj Chelak, and Rs.22,13,218/- received by the assessee as gifts from Parminder Singh Bains ($25000) and Shri Deepak Kumar ($26100) have been added under Section 68 as unexplained cash with an observation that the assessee has failed to furnish confirmation or any evidence regarding relation or creditworthiness ofthe donors. Depreciation of Rs. 1,22581/- claimed by the assessee on Qualis vehicle h^s also been rejected on the ground that looking to the nature of income, it cannot be said that the vehicle was used for the assessee's business purpose. Accordingly, assessment was completed at Rs.5,68,78,983/- under Section 153A. It has been also directed to charge interest under Section 234A, 234B & 234C and separate penalty proceedings under Section 271 (1 )(c) of the Act. 07. The assessee preferred appeal against the above order of the AO. The CIT(A) rejected the objection of the assessee regarding conducting survey under Section 133Aon the person ofthe assessee at Raipur Airport and converting the survey into search under Section 132 of the Act and contention of the assessee that assessment was not done independently by the AO, but at the instructions and dictates of other authorities. CIT(A), however, deleted addition of Rs.24,85,000/- which was seized from the assessee at Airport by accepting his explanation in this regard and further deleted addition of Rs.85,000/- and directed the AO to treat the above incomeas agricultural income. The Commissioner also deleted the addition of Rs.4,72,31,310/-, which ^; 2.2. was added as undisclosed income allegedly earned in the names of benamidars. Referring to the reasons detailed in the appeal order for the assessment year 2002-03, the addition has been deleted and the AO has been directed to assess income determined in the cases of those persons in their respective hands on substantive basis, as the income has already been assessed in their hands on protective basis. The addition of Rs. 18,41,7587- on account of unexplained expenditure on fuel purchase, has been further deleted by reference to the discussions in the appeal order for the assessment year 2004-05. The addition of Rs.18,096/- made on accountof Supela Bar Collection on 16.8.2004 has been further deteted on the ground that necessary elements in respect of benami transaction have not been established. However, addition of Rs.22,13,218/- made on account of NRI gifts has been confirmed, and disallowance of depreciation claimed at Rs.1,22,581/- has been set aside and the AO has been directed to allow the depreciation after disallowing 1/5 for personal purposes. 08. Revenue, assessee as well as cross objectors (benamidars) preferred separate appeal against the order of the CIT(A) passed for each assessment year, and the Tribunal has disposed of all the appeals by a common order in the following terms: (01) Rejecting the objection of the assessee and confirming the order of both the forums below against the initiation of survey under Section 133A at the Airport, it was held that scope of survey under Section 133A includes verification of cash with reference to books of account. Since the cash found with the person of the assessee was to be verified with reference to books of account, survey wasconducted. The assessee was accompanied to his officeand when he could not satisfactorily •-1 (^^ ^3 explain the nature and possession of the cash found with him, survey was rightly converted into search. (02) Consideringthe cross objection of the assessee with regard to validity of the notice under Section 153C and subsequent assessment, it has been observed that there was no requirement for recording of satisfaction that the documents found and seized reflected earning of any undisclosed income, as provision under Section 153C and erstwhile provisions under Section 158BD are differently worded. The seized material was received on 21.10.2005 and prior to this, the AO was having enough evidence to record satisfaction and the same is contained in order sheet and notice has been issued after application of mind. The subsequent notice was issued as a matter of abundant precaution and there is no bar for issuing second notice. Fresh notice under Section 153C supersedes the earlier proceedings. Accordingly, finding of the AO, which has been subsequently confirmed by the CIT(A), has been further confirmed. (03) Rejecting the alternative stand of the assessee that papers were found from the premises of Manharantal Verma, who has been projected as excise consultant of all benamidars of Trilok Singh Dhillon, it has been held that all the assessees of Trilok Singh Dhillon group were his benamidars, including Manharanlal Verma. Manharanlal Verma was one of his trusted employees for the past several years and he was also handling bank accounts of all benamidars and family member of Trilok Singh Dhillon and no such consultancy activity was done by him. Accordingly, the Tribunal rejected the claim of Manharanlal Verma being excise consultant. (04) Repelling the argument of the assessee that protective assessment is not permissible under Section 153C, it has been held that if the AO is of the opinion that income is assessable in the hands of some other person than the ostensible person, nothing precludes him in doing so. However, in order to safeguard the interest of Revenue, in the event of different L-3 24 view by the appellate authority, protective assessment is justified. Retiance is placed on the decision of the Supreme Court inthe matter of Lalji Haridas Vs. ITO, reported in (1961) 53 ITR 387. (05) After referring to the entire circumstances as emerging from the record, and after hearing rival submissions, findings offact have been recorded in para-26 of the impugned order and it has been finally hetd in para-33 thus: \"33. In view of the factual and legal discussion, we hold that the money was indirectly invested by Trilok Singh Dhillon and fruit of business has gone back to him as well. Therefore, the income computed in the Panchuram case was rightly held assessable only in the hands of the said Shri Trilok Singh Dhillon on substantive basis. Similar issue has been raised by the revenue on the point of benamidars of Shri Trilok Singh Dhillon, in case of different assesses. Facts and modes operandi being same, so following the same reasoning, we hold that all other assessees are also benamidars of Shri Trilok Singh Dhillon. According, these liquor business income is also directed to be assessed on substantive basis, in the hands of Shri Trilok Singh Dhillon. The AO is directed accordingly.\" First substantial question of law - Whether survey u/s 133Acan be conducted at Airport on a person getting out ofaircraft instead ofsearch u/s. 132(1)(B)(iia) exclusively provided for such circumstances and if not, whether the survey and all the subsequent proceedings which followed such sun/ey are valid, specifically keeping in view the law laid down by the Hon'ble Supreme Court in the case of Union of India Vs. Ajlt Jain (2003) 260 ITR 80 (SC)? 9. Shri Rajeshwar Rao, learned counsel appearing for the assessee, argued that survey under Section 133A can be conducted at business ^ ^5 premises. This aspect has been overlooked by all the forums below. In the instant case, the assessee was intercepted at Raipur Airport and his signatures were obtained on authorization for survey under Section 133A and thereafter, he was taken to his office at Bhilai where his second statement was recorded. The AO has admitted that survey was conducted at Airport for the purposes of verification of the cash. However, no document according legal sanction under which the assessee was intercepted at Airport has been filed, which was necessary as per proviso to Section 133A(6), which mandates approvat of the Joint Director. No reason has been shown for avoiding action under Section 132(1)(B)(iia). Since the matter was not considered within the ambit of Section 132(1 )(c) at the initial stage white intercepting the assessee at Airport, resorting to the same provision subsequently after survey was not called for as there was no change in circumstance. From the above fact, it is clear that survey at the Airport under Section 133A is without jurisdiction and therefore, all other proceedings which followed invalid survey are void, as held by the Supreme Court in the case of Union oflndia Vs. AjitJain . The argument that validity of search cannot be decided by the Tribunal has no force as the same was never advanced before the forums below. The assessee had raised this specific issue in his Memo of Appeal and the judgment cited by the Revenue is distinguishable inasmuch as the same relates to approval of assessment and not to acquisition of jurisdiction. It was alternatively submitted that no new materiat was found during survey and there was no need for converting (2003) 260 ITR 80 (SC) u' 26 the survey into search subsequently after extensive survey because the requisite ingredients were not present. It was further argued that the material found during illegal search may be used in assessment proceedings under regular provisions, but not under the special procedure for assessment of search cases under Sections 153Ato 153D. 10. Shri Rajeev Shrivastava, learned counsel for the Revenue, would arguetf that no search or survey was conducted at the Airport. On receiving information in the morning of 24 August, 2004 that the assessee was carrying cash while travelling by flight from Mumbai to Raipur, he was escorted from Airport to Dhillon complex where survey was conducted and subsequently, the same was converted into search. His initial statement was recorded at the Airport. All the three forums below have recorded a concurrent finding of fact with regard to legality of search. It was further argued that validity of search cannot be questioned in assessment proceedings. Reliance is placed on the decisions in the matters of CIT Vs. Paras Rice Mill2, M.B. Lal Vs. C17Q, and Gaya Prasad Pathak Vs. AC17A. It was further argued that the judgments relied upon by the appellants have been delivered by the Hon'ble Supreme Court and different High Courts in a matter arising out of the writ proceedings and not in a proceeding arising out of the assessment order. 2 (2009) 313 ITR 182 (Punjab & Haryana) 3(2005) 279ITR 298 (Delhi) (2007) 290 ITR 128 MP ^ 27 Finding. 11. In the assessment order, the AO has mentioned that on receipt of information that the assessee was carrying cash, his statement was recorded at the Airport. Later on, survey under Section 133A was conducted in the business premises of the assessee. The CIT(A) rejecting the argument of the assessee in this regard held that the scope of survey under Section 133A includes verification of cash with respect to books of account. In this case, the cash found in the person of the appellant was to be verified with respect to books of account and for this purpose, survey under Section 1 33A was carried out. The assessee was accompanied to his office and he could not satisfactorily explain the nature of possession of cash found with him along with evidences and accordingly, survey was converted into search. In the impugned order, the Tribunal affirmed the above finding in appeal by the CIT(A). 12. The question for our consideration is - whether the questions touching the validity of search conducted under Section 132 of the Act can be agitated during block assessment proceedings or in an appeal before the CIT(A) or before the Tribunal against the impugned order? 13. In the matter of Ajit Jain Vs. Union of India , in a writ petition filed by the assessee, issue before the High Court was validity of authorization issued by the Director, IT (Investigation) under Section 132(1) of the IT Act and block assessment order passed u/s 158 BC on the same date. The authorization under Section 132(1) by the Director, IT and assessment was challenged on the ground that there was no information on record on the basis whereof the Director, IT, could form ' (2000) 159 CTR (Del) 204: (2000)242ITR 302 (Del): (2001) 1 17 Taxman /^7 m the belief that the said recovered amount represented income which had not been or would not have been disclosed for the purposes of the Act, a condition precedent for exercise of power under Section 132(1) of the Act. Allowing the writ petition of the assessee, it was held that for the purposes of exercise of powers under Section 132(1), the aythorizing officer has to form the belief on the basis of receipt of information that the person is in possession of money etc., which represents undisclosed income. Though sufficiency or otherwise of the information cannot be examined by the Court in writ jurisdiction, the existence of information and its relevance to the formation of the belief is open to judicial scrutiny because it is the foundation of the condition precedent for exercise of a serious power of search of a private property or person, to prevent violation of privacy of a citizen. Therefore, for the purposes of Section 132, there has to be a rational connection between the information or material and the betief about undisclosed income. Hotding the search to be without jurisdiction and void ab initio on the facts of the above case, it was further held that provisions of Chapter XIV-B can also not be invoked pursuant to the said search and consequently, the block assessment order cannot be sustained. 14. The Revenue went up in appeal before the Hon'ble Supreme Courtand the Supreme Court affirmed the order of the High Court, vide Union of India Vs. Ajit Jain and another, (2003) 181 CTR (SC) 22 : (2003) 260 ITR 80 (SC) : (2003) 129 Taxman 74. 15. Chapter XIV-B deals with special procedure for assessment of search cases. Section 158BC provides for procedure for block t2g> 29 assessment, whereas Section 158BD deals with undisclosed income of any other person and Section 158BE prescribes time limit for completion of block assessment. Section 158BE(1)(b) and Explanation 2 are relevant for the present purpose and the same may be extracted as under: \"158BE. Time limit for completion of block assessment. - (1) The order under section 158BC shall be passed, - (a) xxxx xxxx xxxx (b) within two years from the end of the month in which the last of the authorizations for search under section 132 or for requisition undersection 132A, as the case may be, was executed in cases where a search is initiated or books of account or other documents or any assets are requisitioned on or after the 1 day of January, 1997. Explanation 2. For the removal of doubts, it is hereby ^ declared that the authorization referred to in sub- section (1) shall be deemed to have been executed, - (a) in the case of search, on the conclusion of search as recorded in the last panchnama drawn in relation to any person in whose case the warrant of authorization has been issued; (b) in the case of requisition under section 132A, on the actual receipt of the books of account or other documents or assets by the Authorized Officer. 16. The Division Bench of the Delhi High Court in the matter of M.B. Lal, considering the above deeming provisions contained in Section f^ 'i -30 158BE, held that the vatidity of search proceedings cannot be examined in appeal filed before the Tribunal against the block assessment and the remedy lies underArticle 226 ofthe Constitution. 17. In Paras Rice , the Punjab & Haryana High Court following the decision of the Delhi High Court in M.6. La/'s case, held that while hearing an appeal against the order of assessment, the Tribunal cannot go into the question of validity or otherwise of any administrative decision for conducting search and seizure. 18. In the matter of Gaya Prasac^, it has been held that the jurisdiction exercised by the statutory authority while hearing an appeal cannot enter into the justifiability of an action under Section 132A. Whether the order passed by the CIT is without jurisdiction or not cannot be thesubject-matter of assessment as the same does not arise in course of assessment. Therefore, neither the AO nor the appellate authority can dwetl upon the said facet. One may note with profit, it would not be a jurisdictional fact within the parameters of assessment proceeding or an appeal arising therefrom. It can only partake the nature and character of adjudicatory fact to the limited extent whether such search and seizure had taken place and what has been found during the search and seizure. The validity of search and seizure is neither jurisdictional fact nor adjudicatory fact and, therefore, the same cannot be dwelled upon or delved into in an appeal. Submission that the Tribunal having been constituted under Article 323 of the Constitution can delve into, is an unacceptabte proposition in law, especially in the teeth ofthe provision contained under Section 253. 5o 31 19. Shri Rajeshwara Rao, learned counsel for the assessee, placing reliance on the decision in the matter of Commissioner of Income Tax. Vs. Smt. Chitra Dew\" Son/6,argued that the question as to whether there existed any material at all, which constituted reason to believe, is a matter which can definitely be looked into by the Tribunal, as also by the Court, as the absence would vitiate the entire action. He stressed upon the proviso to Section 133(A)(6) and argued that to proceed under sub-section (i) or (iii) to Section 133A, approval of the Joint Director is a condition precedent. However, the respondent has not filed copy of the order/legal sanction under which the assessee was intercepted at Airport. 20. Considering the aforesaid submission of learned counsel for the assessee, the Revenue has produced the entire record of the assessment proceedings, including appraisal report in a sealed cover. From perusal of the orders of the forums below, we find that on the basis of search proceedings, notices under Section 153C read with Section 153A were issued to the assessee and thereafter, return was filed and assessment was completed and assessment order was passed. The assessee participated in the assessment proceedings and did not challenge the validity and legality of search and seizure proceedings initiated against him by filing any writ petition in the High Court. Therefore, following the decisions of the High Courts, referred to hereinabove, we are ofthe opinion that itwas not open to the assessee td question the legality and validity of search and seizure proceedings during assessment proceedings beforethe AO or in appeal before the / . / 6 (2008) 214 CTR (Raj) 118: (2009) 313 ITR 174 : (2008) 170 Taxman 164 : (2008) 1 DTR 98 13; 3i CIT or the Tribunal. Accordingly, we reject the objection of the assessee in this regard. Second substantial question of law - Whether in the facts and circumstances of the case, the assessment order was made on the jbas/'s of instructions and dictates of other authohties and if so whether such assessment is not bad in law? 21. Shri Rajeshwara Rao advancing argument on this question, submitted that the above issue has not been decided by the Tribunal. Notice under Section 153C was issued on 16.2.2005 on the basis of appraisal report. It clearly reveals that the AO was influenced by the directions in appraisal report. The entire assessment has been made at the dictates of other authorities and income of other persons has been treated as deposits in the bank accounts of the assessee as undisclosed income, by ignoring the fact that predecessor of the AO completed assessment in the cases of Kamlesh Kumar Chandel and Yuvraj Mane as independent persons and not benamidars. The successor AO has also completed assessment for the assessment year 2006-07 in the case of Manoj Kumar Chelak as independent person without treating him as benamidar of the assessee. However, action under Section 153C and 153A has been taken only on the basis of appraisal report at the dictates of other authorities. 22. On the other hand, Shri Rajeev Shrivastava, learned counsel appearing for the Revenue, would argue that the AO has recorded a categorical finding based on evidence available on record. The assessee has not disputed the factuat findings in the assessment order and there is no perversity in the order. The argument of the assessee in this regard is based on conjectures and surmises without any t^'^- 33 material or legal foundation. Reference to earlier order in the case of Kamlesh Chandel andothers is of no avail as the said persons filed their return on 31st March, 2004 for the relevant assessment year and the assessment order was passed on 28 March, 2006 whereas search was conducted on 24.8.2004 and Kamlesh replied to the notice under Section 153C on 24.2.2006 and assessment order was passed on 28.12.2006. The notice under Section 153C was issued on 16.2.2005. In view of sub-section (1)(b) of Section 153A, the assessment order passed by the AO in the case of Kamlesh Chandel under Section 143(3) is a nullity, without jurisdiction and void ab initio. Finding: 23. The objection of the assessee in this regard has been rejected by the CIT(A) with an observation that after considering the facts and circumstances of the case and the relevant record, 1 am of the opinion that the AO acted independently and there was no instructions, as allegedby the assessee. It appears that the appellant presumed that there might be some direction by the Investigation Wing in the appraisal report to complete the assessment in a particular manner. Appraisal report is a report furnishing brief discussion of the result of search and the points required to be examined while completing the assessment. The discussion in the appraisal report is not a direction influencing the liberty of the AO. The AO is free to complete the assessment on the basis of materials available on record and on the basis of the appellant's explanation. There is no such direction as alleged by the appellant in the instant case. -7 \"7 (^ 3tf The assessee, instead of referring to any specific para in the order of assessment based on factuat findings, has imputed biased approach at the dictates of otherauthorities, which has been rejected by the forums below after examination of the record. Thus, in our considered opinion, the question raised by the assessee is a pure question of fact that has already been answered by the forum below against the assessee. Third substantial question of law - Whether the order of the Id. Tribunal is perverse with respect to restohng the issue of addition of Rs.24,85,000/- being cash found in the possession of the appellant, particularly when the sources of the same were satisfactorily explained and when the addition was made without any corroborative material? 24. Addressing on the above issue, Shri Rao submitted that there is no dispute regarding availability of cash with the assessee. The genuineness of transaction was accepted in the case of M/s Carol Barter (P) Ltd in the assessment proceedings under Section 143(3) of the Act and the statement recorded during survey has no evidentiary value. There was no corroboratory material available with the AO to support the addition. The Tribunal was not justified in setting aside the order of the CIT(A), whereby addition was deleted, and restoring the matter to the AO to decide the same afresh. Finding: 25. We have perused the order of the AO as also that of CIT(A) in this regard and we are of the opinion that restoration of the above matter to the AO for fresh adjudication after affording opportunity of hearing to the parties does not involve any substantial question of law. c^ 35 Fourth substantial question of law - Whether the order of the learned Appellate Tribunal, in the facts and circumstances of the case, is perverse with respect to treating various persons as benamidars of Shri Thlok Singh Dhillon, a co-partner, without disputing the genuineness of the firm, which has advanced the money, without questioning the genuineness of sources of the money advanced, when the borrowings were interest bearing, when the interest income was separately assessed in the hands of the firm/other partners, when the other persons were not treated as benamidars ofthe other partners who stand on the same plank as the appellant with respect to their capital contribution in the firm and loaned to the appellant, when the Excise License was issued by the Excise Department in the names of different persons, when the Excise Department certified the execution of license by them and when those persons owned the business and offered the income to tax in their individual capacity? Finding: 26. The AO, after considering the entire evidence available on record and having elaborately detailed the circumstances teading to an inference that others were benamidars of Trilok Singh Dhillon, has recorded a finding of fact. The above finding of fact has been further confirmed by the Tribunal in its detaited order. After closely examining the assessment order, the order of CIT(A) and the impugned order of the Tribunal in this regard, we are of the opinion that the finding of fact arrived at by the Tribunal, which is a final Court of fact, is based on uncontroverted material available on record, which cannot be termed perverse and therefore, no such substantial question of law, as proposed by the assessee, arises for adjudication by this Court. Fifth Substantial question oflaw - Whether the ITAT is legally correct in confirming the addition of Rs.22,13,218/- made u/s. 68 as unexplained cash credit, especially when the gift was received with the rider that if the same was not recognized as gift for any reasons, the L.U\" 36 same shall be returnable to the donor, whose identity and creditworthiness and genuineness of the transaction were substantiated by the appellant? 27. Shri Rao argued that the gifts were received from the relatives of the assessee in America in the form of dollars. The addition has been made by the AO under Section 68 as unexplained cash credit, and confirmed by both the appellate forums on the ground that the assessee has not furnished confirmation or details of relations and creditworthiness of the donors etc. It was argued that the donors had forwarded affidavit and confirmation along with copy of bank accounts directly to the AO; the CIT(A) afforded opportunity under Rule 46A of the Income Tax Rules for examining the additional evidence; however, the AO did not allow time to produce these witnesses and in these circumstances, the Tribunal ought to have restored this issue also in the file of the AO for providing a reasonable opportunity to the assessee. Finding: 28. From perusal of fhe orders passed by the AO and the appeltate forums, it is clear that the above addition under Section 68 has been made as unexplained cash credit when the assessee failed to produce confirmation of the gifts by the donors even after he was afforded opportunity for the same by the CIT(A). We find substance in the argument of learned counsel for the Revenue that the above addition as unexplained cash credit has been rightly made, especiatly when the gift was received with the rider that if the same was not recognized as gift for any reason, it shall be returnable to the donor, whose identity, and creditworthiness and genuineness of the transaction were not substantiated by the assessee. We find that the question raised by the -. \"•• - F U4> 37 assessee in this regard is a pure question of fact and the same does not give rise to any substantial question of law. 29. Apart from the above issue, learned counsel for the appellants was also heard on the following substantial questions of law, proposed in other connected appeals at the instance of appellants other than Trilok Singh Dhillon. SQL No.6: Whether on the facts and circumstances of the case, Income Tax Appellate Tribunal was justified in law in summarily rejecting appellant's appeal on Ground No.1 and 2 of the grounds ofappeal, when these grounds were decided by speaking order by the first appellate authority7 SQL No.7: Whether, in the facts and circumstances of the case, the ITATis legally correct in allowing the Revenue's appeal by way of summarily remanding the matter to the file of the AO without passing a speaking order? 30. Learned counsel for the appellants submitted that they do not want to press these issues, hence the same need no consideration. SQL No. 8; Whether the learned Tribunal, in the facts and circumstances of the case, was legally correct in endorsing the order of the learned CIT(A) regarding validity of the assessment made under Section 153C, particularly when the notice under Section 153C was issued before receipt of the seized material, when the issue of notice preceded the initiation of search under provision to Section 153C, when the notice was issued without recording requisite proper satisfaction, which was not possible without receipt of the seized material and when the second notice was Issued without finally concluding the assessment proceedings set to motion through the first disputed notice? t3'7 38 31. Shri Rao submitted that the AO issued notices under Section 153C of the Act on 16.2.2005. The assessee filed objection and also filed an application under Section 144A before the Additional CIT. However, no reply was received and in these circumstances, he filed return under protest. Notices under Section 143(2) and 143(1) were issued by the AO and thereafter, assessment proceedings were set to motion. However, without deciding the earlier notice, another notice was issued under Section 153C on 4h September, 2005 and assessment was completed on the basis of both these notices. hle further argued that Sections 153C and 148 are pari materia. Relying upon the decisions of the Tribunal in the case of Suncity Alloys (P) Ltd. Vs. ACIT7, it was argued that once the proceedings were set to motion, the AO was required to logically conclude the same. 32. On the other hand, Shri Rajeev Shrivastava would argue that the forums below have rejected the arguments of the appellant in this regard by a concurrent finding and held the notices issued under Section 153C valid. This issue has been dealt with by the Tribunal in para-8 of its order in detail. The assessee could not point out any fautt with the findings recorded by the Tribunal. Even if, contention of the assessee with respect to issuance of subsequent notice under Section 153C is accepted, it is a mere procedural irregularity and not any illegality, and the entire assessment proceedings cannot be held to be invatid on this ground only. Finding: 33. The Tribunal has dealt with the issue of validity of notice under Section 153C in detail from paras 6 to 8 of its order, wherein it has been 7 (2009) 124 TTJ (Jd) 674 : (2009) 27 DTR 139 133 39 held that there was no requirement of recording satisfaction that the documents found and seized reflected the earning of any undisclosed income. The satisfaction may be inferred from the facts and circumstances of the case. The provisions of Section 153C were not at par with the erstwhile provisions of Section 158BD as the provisions under Section 153C are differently worded. As per amended provisions of Section 153C, satisfaction has to be arrived at with regard to belongingness of the documents found during search and not regarding the undisclosed income. The AO has issued notice after considering all the related particulars. Though the seized material was received on 21.10.2005, even prior to this, the AO was having enough evidence to record satisfaction and the same is contained in the order sheets. The satisfaction gives specific particulars of annexures to the seized materiat and the contents of the seized material, which shows that the AO applied his mind before issuing notices. For the purposes of proviso to Section 153C, the date of receipt of material is the date of search. In this case, the material was received on 21.10.2005, however, there was no deviation in the particulars of the seized material recorded in the order sheet and received physically. Thys, the satisfaction recorded earlier still holds good and a fresh notice under Section 153C was issued by way of abundant precaution and there is no bar for issuing second notice. In the instant case, the AO in the case of Shri Trilok Singh Dhitlon and Group is the same as AO having jurisdiction against the third person and therefore, there was no question of handing over the documents etc. to any other AO as provided in sub-section (1) to Section 153C of the Act. w ifO 34. On due consideration of the reasonings in the order of the Tribunal and after goingthrough the provisions under Section 153C, we are of the opinion that the Tribunal considering that the AO of the assessee and the third person was the same and therefore, issuance of notice to such other person in the manner provided under Section 153A even before the date of receiving the books of account or documents or assets seized, woutd not invalidate the notice as notice has been issued by the same AO, who has effected seizure during search and recorded the same in theorder sheets, has rightly observed the AO issued subsequent notice by way of abundant precaution. We find no illegality or infirmity in the finding ofthe Tribunal. SQL No.9: Whether the order of the learned Appellate Tribunal, in the facts and circumstances of the case, was perverse with respect to treating the appellant a benamidar ofShri Trilok Singh Dhillon, a co-partner, without disputing the genuineness of the firm, which has advanced the money, without questioning the genuineness of sources of the money advanced, when the borrowings were interest bearing, when the interest income was separately assessecf in the hands of the firm/other partners, when the appellant was not treated as benamidar of the other partners who stand on the same plank as Shri Dhillon with respect to their capital contribution in the firm and loaned to the appellant, when the Excise License was issued by the Excise Department in the appellant's name, when the Excise Department certified the execution of license by the appellant and when the appellant offered the income to tax in his individual capacity? Finding: 35. This issue has already been considered while considering issue No.4 and answered against the assessee and in favour of the revenue. f40 ^l SQL No.10: Whetherthe AO had jurisdiction to take the case under scrutiny for assessment year 2005-06 as a consequence ofnotices issued u/s 153C read with section 153A for preceding six assessment years against the provisions of the Acf? Finding. 36. The above issue has already been considered and decided while considering issue No.1. SQL No.11: Whether the order of the Tribunal, in the facts and circumstances of the case, is perverse with respect to restoring the matter of deposit in the bank accounts to the AO when the appellant filed his return under Section 44AF? 37. Learned counsel for the appellants submits that the appellants filed return of income for the assessment year 2005-06 under Section 44AF. For filing return under the aforesaid provision, the assessee is not required to maintain books of account and the addition was made on the basis of entries contained in the bank passbook. However, bank passbook cannot be regarded as assessee's books of account, therefore, addition is not justified. Finding: 38. From perusal of the order of the Tribunal, it is seen that in the case of Panchuram Deshmukh, the AO made addition of Rs.9,44,000/- as unexplained deposit in the bank account. In appeal, CIT(A) deleted the addition of Rs.4,50,000/- on the ground that the above amount was credited as the same was transferred from assessee's current account, which was ascertainable from the bank account, and granted relief to that extent. The Tribunal upheld the order of the CIT (A). Since similar issues arose in various other appeals filed by the Revenue, so following the same reasonings, the above issue in all appeals have been ^2. ^ restored to the AO with a direction to decide this addition in different cases after verification of nexus of deposits with liquor business. It has been categorically mentioned that in case, it is found to have nexus with the liquor business, it should be decided in the light of the assessee being benamidar of Shri Trilok Singh Dhilton and where the assessee comes out with cogent reasoning and establishes the deposits independent of liquor business, in that case, the addition may be deleted. We do not find any illegality or perversity in the above finding of the Tribunal giving rise to any substantial question of law, particularly when the matter is still open and to be considered by the AO afresh in the light of directions issued by the Tribunal. SQLNo.12: Whether the notice u/s 153C and all subsequent proceedings are not bad in law and without jurisdiction, when there was no search conducted u/s 132 in the premises of the person from whose possession the seized material was found and particularly when he owned the same? Finding: 39. In the light of reasonings detailed in this order while considering the issue No.4 and issue No.8, this question is also decided against the assessee and in favour of the Revenue. SQL No.13: Whether the Appellate Tribunal was legally correct in not following the order of the jurisdictional Bench without ascribing any reasons? 40. In the matters of Arihant Builders, Developers & Investors (P) Ltd. Vs. ITAT & others in a writ petition filed by the assessee, the ' (2005) 197 CTR (MP) 471: (2005)277 ITR 239 (MP): (2005) 144 Taxman 121 (MP) « •• ^ ^-3 matter was remanded to the Tribunal for decision afresh in accordance with law on the ground that the decision was passed by the Tribunal in the past and the Tribunal ought to have followed the same in later appeal to maintain consistency. 41. In Berger Paintslndia Ltd. Vs. Commissioner of Income Tax9 the Hon'ble Supreme Court considering that the issue involved in the matter was already decided in the case of other assessees by Gujarat High Court and the law laid down by the Gujarat High Court was accepted by the Revenue, held that in that case, it is not open to the Revenue to challenge its correctness in case of other assessees, without just cause. 42. Similar view has been taken by the Supreme Court in the matter of Commissioner of Income Tax Vs. J.K. Charitable Trust}°. 43. Placing reliance on the principles of law laid down in the aforesaid judgments, it is argued that in the case of M/s Shakti Traders, Durg, in identical circumstances, decision of CIT(A) was upheld by the coordinate Bench of the Tribunal and the Revenue accepted the said decision and did not prefer appeat under Section 260A of the Act and in such circumstances, the Tribunal ought to have referred the present set of appeals to the larger Bench under Section 255(4) of the Act. Finding: 44. The decision of the Tribunal is based on the material available on record in the present case and therefore, notice issued by the AO under Section 153C on the facts of the present case cannot be questioned on ' (2004) 187 CTR (SC) 193 : (2004) 266 ITR 99 (SC): (2004) 135 Taxman 586 0 (2008) 220 CTR (SC) 105:(2009)308ITR 161: (2008) 175 Taxman 251 : (2008) 15 DTR 41 ^ f43 the ground that on similar facts, the department accepted the decision of the Tribunal, whereby order of the CIT(A) holding that AO had no jurisdiction for issuing notice under Section 153C, was confirmed as the same is dependent on facts of the each case. SQL No.14: Whether the protective assessment is permissible under Section 153C, specifically when action under this Section is based on the ultimate satisfaction of the AO that the material relates to a person other than the person in whose case search was conducted? Finding: 45. Having heard learned counsel for the parties, we are of the opinion that the Tribunal was right in justifying the protective assessment to safeguard the interest of the Revenue in the event of different View by the appellant authority by relying upon the decision of the Hon'ble Supreme Court in the matter of Lalji Haridas (supra). SQL No.15: Whether the order of the learned Tribunal, in the facts and circumstances of the case, is perverse with respect to restoring the matter of estimation of profit to the AO, when the orcfer of the CIT(A) itself was based on the rate of profit estimated by the Revenue in identical cases? Finding: 46. Since the Tribunal has restored the matter to the AO with a direction to re-compute profit on the basis of profit shown in other similar cases, the same does not give rise to any substantial question of law. SQL No.16: Whether the order of the learned Appellate Tribunal, in the facts and circumstances of the case, is perverse with respect to confirming the disallowance of interest expenses, which are u< ^^ a/so assessecf to tax in the hands of the recipientfirm and without disputing the genuineness of the firm and all related transactions in the firm's case? Finding: 47. The Tribunal, on the basis of material available on record, has arrived at a conclusion that Firm M/s Supreme Traders is only an instrument to finance the money of Shri Trilok Singh Dhillon and his concerns etc and the assessees were made partner for the obvious reasons. The claim of interest of Rs.2,88,000/- has been disallowed _with a finding that the entire funds are that of Shri Trilok Singh Dhillon and the assesses are benamidar of Trilok Singh Dhillon. We have already considered the above finding while considering other issues and confirmed the finding of the Tribunal that the Firm is only an instrument to finance the money of Trilok Singh Dhillon and the assessees were made partners to circumvent the new liquor policy of the State Government. Accordingly, this issue is also decided against , the assessees and in favour of the Revenue. SQL No.17: Whether the order of the learned Tribunal, in the facts and circumstances of the case, is perverse with respect to rejecting the income from excise consultancy activity, particularly when the income was offered in returns regularly filed by the appellant before occurring of the search and accepted by the AO under regular provisions? Finding: 48. This aspect has already been dealt with by the Tribunal while dealing with the cross objection of the assessee with respect to validity of the notice under Section 153C of the Act and subsequent f<4- ^6 assessment. We are in agreement with the reasonings assigned by the Tribunal on this issue. SQL No. 18: Whether the order of the Appellate Tribunal was perverse with respect to restoring the issue raised in the appeal memo without considering the fact that no such addition was made by the AO 'in the assessment order? SQL No.19: Whether the order of the Id. Appellate Tribunal, in the facts and circumstances of the case, is perverse with respect to restoring the matter of unexplained investment to the AO when the same was already decided by the CIT(A) in appellant's favor? 49. Learned counsel for the appellants do not want to press these issues, hence the same need no consideration. SQL No.20: Whether the leamed Tribunal was legally correct in confirming the addition made by the AO without enquiry and without any basis? Finding: 50. The addition has been made on the basis of estimation by the AO and the same has been subsequently confirmed by the Tribunal. The assessee has not been able to establish that the estimate so made is not borne out of and contrary to the material available on record and as such, perverse. Therefore, in our considered opinion, it is a pure and simple question of fact, which has been decided against the assessee and in favour of the Revenue by the Tribunal, which is the final Court of fact. SQL N0.21: Whether the order of the Tribunal, in the facts and circumstances of the case, is perverse with respect to recording of satisfaction for initiating proceedings under Section 153C of the (44 4-7 Act, particularly when the seized bills were found verifiable from the records maintained by the appellant? Finding: 51. The notices have been issued under Section 153C to the appellant after the AO has recorded satisfaction that the assessee is running the restaurant as benamidar of Trilok Singh Dhillon and after due enquiry, the addition has been made. However, the Tribunal has restored the matter to the AO with a direction that in case, the assessee is running restaurant as benamidar of Trilok Singh Dhillon, then the same has to be assessed at the hands of TritokSingh Dhillon. There is a specific direction to the AO to decide the same as per facts and law after providing opportunity of hearing to the assessee. In our considered view, the above issue is to be ultimately decided by the AO afresh after affording opportunity to the assessee and therefore, no interference is called for on this issue by this Court as no substantial question of taw arises for adjudication. 52. On the basis of aforesaid discussions, we decide the issues proposed by the appellants/assessee in favour of the Revenue and against the appellants/assessee in this batch of appeals and accordingly, dismiss the appeals with no order as to costs. Sd/- Dhirendra Mishra Judge Sd/- R^. Chandrakar Judge ^ "