Income Tax Appellate Tribunal - Pune
Amritsingh J. Bindra,, Nashik vs Assessee on 26 August, 2013
IN THE INCOME TAX APPELLATE TRIBUNAL
PUNE BENCHES "B", PUNE
BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER
AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER
ITA Nos. 329 to 332/PN/2012
(Assessment Years : 2001-02 to 2004-05)
Shree Amritsingh J. Bindra
"Amrit Villa", Nashik-Pune Road,
Nashik Road, Nashik - 422 101
PAN : AIUPB3841N .... Appellant
Vs.
Income Tax Officer,
Central, Nashik .... Respondent
ITA Nos. 377 & 378/PN/2012
(Assessment Years : 2001-02 & 2002-03)
P.D. Bindra
"Amrit Villa"
Near Bytco College, Nashik,
Pune Road Nashik - 422 101
PAN : AFXPB7440R .... Appellant
Vs.
Income Tax Officer,
Central, Nashik .... Respondent
ITA Nos. 379 & 380/PN/2012
(Assessment Years : 2001-02 & 2002-03)
S.J. Bindra
"Amrit Villa"
Near Bytco College, Nashik,
Pune Road Nashik - 422 101
PAN : AEJPB0371E .... Appellant
Vs.
Income Tax Officer,
Central, Nashik .... Respondent
ITA Nos. 381 to 383/PN/2012
(Assessment Years : 2001-02, 2004-05 & 2005-06)
R.J. Bindra
"Amrit Villa"
Near Bytco College, Nashik,
Pune Road Nashik - 422 101
PAN : AFXPB7546Q .... Appellant
Vs.
Income Tax Officer,
Central, Nashik .... Respondent
2
A.Y. 2007-08
ITA Nos. 1050 & 1051/PN/2012
(Assessment Years : 2004-05 & 2005-06)
Sarvindersingh Jagatsingh Bindra
"Amrit Villa", Nashik-Pune Road,
Nashik Road, Nashik - 422 101
PAN : AEJPB0371E .... Appellant
Vs.
Income Tax Officer,
Central, Nashik .... Respondent
ITA No. 1052/PN/2012
(Assessment Year : 2002-03)
Montysingh Darshansing Bindra
"Amrit Villa", Nashik-Pune Road,
Nashik Road, Nashik - 422 101
PAN : AEJPB4642N .... Appellant
Vs.
Income Tax Officer,
Central, Nashik .... Respondent
ITA No. 29/PN/2013
(Assessment Year : 2007-08)
Smt. Sarvinderkaur J. Bindra
"Amrit Villa", Nashik-Pune Road,
Nashik Road, Nashik - 422 101
PAN : AEJPB0371E .... Appellant
Vs.
Income Tax Officer,
Central, Nashik .... Respondent
ITA No. 30/PN/2013
(Assessment Year : 2007-08)
Jagdishsingh Amritsingh Bindra
"Amrit Villa", Nashik-Pune Road,
Nashik Road, Nashik - 422 101
PAN : AEJPB4641R .... Appellant
Vs.
Income Tax Officer,
Central, Nashik .... Respondent
3
A.Y. 2007-08
ITA No. 31/PN/2013
(Assessment Year : 2007-08)
Paramjitkaur Darshansingh Bindra
"Amrit Villa", Nashik-Pune Road,
Nashik Road, Nashik - 422 101
PAN : AFXPB7440B .... Appellant
Vs.
Income Tax Officer,
Central, Nashik .... Respondent
ITA No. 33/PN/2013
(Assessment Year : 2007-08)
Darshansingh Amritsingh Bindra
"Amrit Villa", Nashik-Pune Road,
Near Bytco College, Nashik Road,
Nashik - 422 101
PAN : AGKPB9502A .... Appellant
Vs.
Income Tax Officer,
Central, Nashik .... Respondent
ITA No.868/PN/2013
(Assessment Year : 2001-02)
Darshansingh Amritsingh Bindra
"Amrit Villa", Nashik-Pune Road,
Near Bytco College, Nashik Road,
Nashik - 422 101
PAN : AGKPB9502A .... Appellant
Vs.
Income Tax Officer,
Central, Nashik .... Respondent
ITA No.872/PN/2013
(Assessment Year : 2001-02)
Jagdishsingh Amritsingh Bindra
"Amrit Villa", Nashik-Pune Road,
Near Bytco College, Nashik Road,
Nashik - 422 101
PAN : AEJPB4641R .... Appellant
Vs.
Income Tax Officer,
Central, Nashik .... Respondent
4
A.Y. 2007-08
Assessee by : Mr. M.K. Kulkarni
Department by : Mr. A. K. Modi
Date of hearing : 26-08-2013
Date of pronouncement : 29-08-2013
ORDER
PER BENCH The captioned appeals relate to different assessees belonging to the same family and involve certain common issues, therefore they have been clubbed and heard together and a consolidated order is being passed for the sake of convenience and brevity.
2. A search and seizure action under Section 132(1) of the Income Tax Act, 1961 (in short "the Act") was conducted by the Department on 15.03.2007 in the captioned Bindra group of cases. The dispute in the captioned appeals arises out of the assessments made by the Assessing Officer as a consequence of the search and seizure action in such cases. In the captioned appeals, one of the common issue relates to the claim made by the assessee in the course of assessment proceedings before the Assessing Officer that the depreciation allowance under the Act, being a non-cash expenditure was a source of availability of cash to that extent while preparing the cash-flow statements for the period of the respective assessments. Since it was a common point between the rival counsels that the facts and circumstances in relation to the aforesaid dispute are identical in all the appeals, the appeal in the case of Jagdishsingh Amritsingh Bindra vide ITA No. 872/PN/2013 pertaining to the assessment year 2001-02 is considered as the lead case in order to understand the rival positions.
3. ITA No.872/PN/2013 is an appeal by the assessee directed against an order of the Commissioner of Income Tax (Appeals)-II, Nashik dated 06.03.2013 which, in turn, has arisen from an order dated 24.12.2008 passed 5 A.Y. 2007-08 by the Assessing Officer, under Section 153A read with Section 143(3) of the Act, pertaining to the assessment year 2001-02. In the Memo of Appeal, the three Grounds of Appeal raised by the assessee read as under :-
"(1) On the facts and circumstances of the case and in law the Ld.CIT(A)-Nashik was not justified in upholding the assessment completed u/s153A of the Act by A.O. as a result of search and seizure action under S.132(1) of the Act in the assessee's family and especially when no incriminating materials were found and seized as far as this appellant is concerned and also when the return filed prior to search action and subsequent to it under S. 153A of the Act was accepted.
(2) On the facts and circumstances of the case and in law it is an admitted position that the assessee had not maintained the regular account books and the income was declared in the return computed under S.44AE of the Act that is under presumptive provisions of law. It is settled law as pronounced by co-ordinate benches of the Tribunal and High Court that Depreciation being non-cash expenditure the assessee was having income as declared plus this non-cash expenditure in the hands which was also disclosed in his cash-flow statement. The cash available was held to be a good source for explaining any investments/outgoings. It be held accordingly.
(3) On the facts and circumstances of the case and in law the levy of interest u/s 234A, 234B and 234C is not justified. The levy of interest be quashed."
4. In so far as the Ground of Appeal No. 1 is concerned the same has not been pressed at the time of hearing and is accordingly dismissed as not pressed.
5. The substantive dispute is with regard to the Ground of Appeal No. 2, and the background of such dispute can be summarized as follows. The appellant is an individual who was covered by search and seizure action conducted under Section 132(1) of the Act by the Department on 15.03.2007. Consequentially, the Assessing Officer issued notice under Section 153A of the Act on 26.07.2007 calling for a return of income and in response, assessee filed a return of income on 20.09.2007 declaring total income of Rs.7,69,818/- whereas in the return of income originally filed under Section 6 A.Y. 2007-08 139 of the Act on 29.01.2002 assessee had declared total income of Rs.7,58,220/-. In the course of assessment proceedings, the Assessing Officer noticed that the search and seizure action revealed certain incriminating material showing acquisition and investment in immovable properties, which were undeclared and certain amount of cash and jewellery was also found in the course of search. The appellant is engaged in the business of transportation, sales commission, C&F agency income, income from house property and income from other sources. In para 6 of the assessment order, Assessing Officer has noted that assessee was not maintaining books of account; that assessee had not prepared any Profit and Loss account or Balance-sheet; and that the same were also never enclosed with the original returns of income filed. In para 8 of the assessment order, the Assessing Officer noticed that in order to examine the sources of income for the investments found to have been made, in the absence of regular books of account, assessee furnished cash-flow statements which were examined. However, the Assessing Officer rejected the cash-flow statements submitted by the assessee and according to him, the same did not explain the sources of investment in the assets found during the search. One of the points of rejection was that the claim of the assessee for considering the depreciation allowance as a source of cash-flow. This particular claim of the assessee is the subject matter of dispute before us, as the CIT(A) has also concurred with the Assessing Officer on this aspect and accordingly assessee is in appeal before us.
6. The assessee is engaged in the business of truck plying for transportation of material, the income from such source was declared by the assessee in the return of income filed under Section 139 of the Act as well as in the return filed in pursuance to notice under Section 153A of the Act on a presumptive basis in terms of Section 44AE of the Act. In the cash-flow statement, assessee claimed that the amount of depreciation allowable on the 7 A.Y. 2007-08 Trucks was as a source of income/cash available to explain the investments. The Assessing Officer did not dispute the assessability of income from truck plying business under Section 44AE of the Act and further observed that as per Section 44AE of the Act "the depreciation is deemed to have been allowed". However, as per the Assessing Officer, the amount of fund/cash available to the extent of depreciation allowance must have been used by the assessee in the course of carrying on the truck plying business and that there was no material to say that such fund/cash was actually available in order to explain the investment in the assets found during the search. For the aforesaid reason, assessee's claim for treating the amount of depreciation as a source of cash availability in the cash-flow statement has been rejected by the Assessing Officer.
7. Assessee carried the matter in appeal before the CIT(A). Before the CIT(A), assessee contended that it was not maintaining any books of account and the income was returned as per the provisions of Section 44AE of the Act; that when no books of account were maintained and in terms of Section 44AE of the Act, the depreciation is 'deemed to have been allowed' then profits as per Section 44AE plus the amount of depreciation is to be viewed as 'cash available' from the business of trucking. It was therefore contended that the Assessing Officer was not justified in rejecting the claim without bringing any evidence on record in support of his assertion that the funds to the extent of depreciation would have been used for the purposes of trucking business itself.
8. The CIT(A) has also not accepted the plea of the assessee. As per the CIT(A), the cash-flow statements prepared by the assessee during the impugned assessment proceedings to justify availability of cash to explain the source of investments in the assets noticed during the search was unreliable and was indeed concocted. As per the CIT(A), the component of depreciation 8 A.Y. 2007-08 was already taken into consideration in the Balance-sheet filed along with original return of income and that in such Balance-sheet the WDV statement of trucks was adopted after depreciation. Furthermore, the CIT(A) verified the claim of the assessee by preparing a Receipts and Payment Account for the period 01.04.2005 to 31.02.2006, as the issue was same in all the assessment before him. In the impugned order for assessment year 2001-02, the CIT(A) has primarily relied upon his discussion on this aspect in the order passed by him in the assessee's case for assessment year 2003-04 dated 27.02.2012. In the course of hearing before us, the substantive discussion made in the order passed by the CIT(A) for assessment year 2003-04 on this aspect has been the basis for the rival arguments. On the basis of the Receipts and Payments Account prepared by the CIT(A) for the period 01.04.2005 to 31.02.2006 it is concluded by him that the closing balance of cash in the re-worked Receipts and Payments Account tallied with the cash balance shown by the assessee in its Balance-sheet as on 31.03.2006 enclosed with the original return of income. Therefore, according to him, the Assessing Officer was justified in rejecting assessee's contentions with regard to cash-flow statements and availability of cash on account of depreciation allowance. Against the aforesaid, assessee is in further appeal before us.
9. Before us, the learned counsel for the assessee submitted that where the income under Section 44AE of the Act has been determined in the absence of books of account, the income so computed plus depreciation allowance is the total cash based income inasmuch as depreciation allowance is a notional deduction allowed to the assessee. Thus, the accumulated depreciation year after year was nothing but cash available with the assessee apart from the income determined under Section 44AE of the Act and that such cash was available to explain the investments in the assets which have been found during the course of search. The learned counsel for the assessee pointed out that Section 44AE of the Act does not require the assessee to file 9 A.Y. 2007-08 any Profit and Loss account or Balance-sheet or any other statement of account and therefore in the present case, assessee was justified in formulating the cash-flow statement after considering the cash from business income plus availability of depreciation cash and also the incomes declared during the course of search. The learned counsel pointed out that the stand of the Assessing Officer to the effect that the depreciation cash must have been utilized for payment of installments of loan/interest or for purchase of diesel, repairs and maintenance of trucks while carrying out the truck business was based on mere surmises and not on any evidence or material and therefore the claim of the assessee has been unjustly rejected. Regarding the contention of the CIT(A) that on the basis of the Receipts and Payments Account worked out by him, there was no enhanced cash available even after considering the amount of depreciation, the learned counsel referred to such re-worked Receipts and Payments Account appearing in para 6 of the order of the CIT(A) dated 27.03.2012 for assessment year 2003-04 and submitted that same was erroneous and factually incorrect. Firstly, it is pointed out that the said Receipts and Payments Account was not confronted to the assessee at any stage. Secondly, it is submitted that the same has not been prepared on the basis of sound accounting principles inasmuch as even certain non-cash transactions have been considered. In this context, the learned counsel has submitted a Written Synopsis pointing out the mistakes in the Receipts and Payments Account prepared by the CIT(A) and it has been stated that if the same is corrected the cash balance would come to Rs.8,74,686/- as against as Rs. 1,00,207/- worked out by the CIT(A). It was therefore contended that the corrected Receipts and Payments Account would show that assessee was in possession of cash corresponding to the depreciation allowance and that the same was available for explaining the investment in the assets found at the time of search. In support of his submissions, the learned counsel also relied upon the decision of Cochin Bench of the Tribunal in the case of Shri C.J. Dominic vs. ITO, ITA No.577/Coch/2011 dated 17.02.2012 and also the 10 A.Y. 2007-08 decision of Ahmadabad Bench of the Tribunal in the case of Shri Rakesh Arvindbhai Patel vs. ITO, ITA No.608/Ahd/2010 dated 23.07.2010, copies of which have been placed on record.
10. On the other hand, the learned Departmental Representative appearing for the Revenue has primarily reiterated the reasons adopted by the Assessing Officer as well as the CIT(A) in opposing the plea of the assessee and such reasons have been noted by us in the earlier paras and are not being repeated for the sake of brevity. According to the learned Departmental Representative, in the original return of income filed, assessee had not made any such claim while declaring income under Section 44AE of the Act. In particular, the learned CIT-DR referred to the observation of the Assessing Officer that assessee had violated Section 139(9)(f) of the Act inasmuch as no Statement of Affairs was filed alongwith the original return of income, which would have reflected the closing cash balance. In sum and substance, it has been contended by the learned CIT-DR that there is no reliable working or material to verify and allow assessee's claim that to the extent of depreciation allowance, cash was available to explain the investment in assets found during the search, and therefore the claim has been rightly denied by the lower authorities.
11. We have carefully considered the rival submissions. The crux of the controversy emanates from the cash-flow statements prepared by the assessee to explain the source of funds available for investment in assets by way of plots, shops, flats, etc. found in the course of search and seizure action. In such cash-flow statements, one of the sources of cash-flow was the amount of depreciation stated to have been allowed to the assessee with respect to its business of Truck plying. Admittedly, assessee is inter-alia, engaged in the business of Tuck plying. It is also not in dispute that the assessee is not maintaining any books of account for such business, and the 11 A.Y. 2007-08 Assessing Officer has observed that assessee "has not submitted the profit and loss account and balance-sheet and which were also never enclosed in the original return of income filed". The income from Truck plying business has been assessed on a presumptive basis as provided in Section 44AE of the Act and in terms of Sub-section (4) of Section 44AE of the Act, depreciation is deemed to have been allowed. Thus, cash earnings of an assessee from the business of Truck plying to which Section 44AE of the Act applies, shall comprise of profit computed under Section 44AE of the Act plus depreciation, which is deemed to have been allowed in terms of Section 44AE(4) of the Act, as depreciation is a non-cash expense. Ostensibly, depreciation allowance claimed or allowed while computing total income is a notional deduction, unaccompanied by cash out-flow. Therefore, funds represented by the depreciation allowance can be said to be available with the assessee in a given situation. So, however, having accepted the aforesaid proposition in- principle, we proceed to examine as to whether such a proposition is available to the assessee in the present case, having regard to the facts and circumstances of the case.
12. In-fact, even the Assessing Officer has not disputed the claim of the assessee in-principle inasmuch as it is accepted by him in the assessment order that "As per provision of Section 44AE, the depreciation is deemed to have been allowed." Be that as it may, the Assessing Officer did not allow the claim of the assessee on the ground that such depreciation fund has not been kept aside by the assessee. According to him, such depreciation fund would have been utilized by the assessee in his Trucking business towards purchase of diesel, repairs, maintenance of truck, repayment of installments of loan and interest, etc. The Assessing Officer further noticed that in the original return of income filed, the assessee did not furnish any Statement of Affairs in terms of Section 139(9)(f) of the Act which, inter-alia, required the assessee to show the available cash balance at the end of the previous year. For the aforesaid 12 A.Y. 2007-08 reasons, Assessing Officer held that assessee's claim for availability of cash to the extent of depreciation claimed in the cash-flow statement was liable to be rejected.
13. We have carefully considered the objections raised by the Assessing Officer. Admittedly, assessee is not maintaining regular books of account and therefore it is not a case where the availability of cash can be verified with respect to any documented accounts. In-fact, where assessment of income is made in terms of Section 44AE of the Act, assessee is not required to maintain books of account and prepare Balance Sheet or Profit and Loss account. In the course of hearing before us, assessee was required to furnish copy of the return of income originally filed under Section 139 of the Act with a view to peruse the manner in which the income from Trucking business has been computed, and it reveals that income from Trucking business was declared on a presumptive basis in accordance with Section 44AE of the Act, apart from incomes from sales commission, C&F agency income, house property income and income from other sources. A Balance-sheet at the year- end was also annexed to the return of income. However, as noted earlier the Assessing Officer had observed that the return of income filed by the assessee did not contain any Balance Sheet or Profit & Loss Account. We can appreciate the said observation of the Assessing Officer because in the absence of regular books of account, which the assessee admittedly is not maintaining, the sanctity and veracity of such a Balance Sheet enclosed with the return of income is quite suspect, to say the least. It is in backdrop of the absence of any regular account books, one has to examine the efficacy of assessee's claim that cash represented by 'depreciation allowance' was available for making investments in the stated assets found during search. Clearly, the onus is on the assessee to substantiate his claim that to the extent of 'depreciation allowance' cash was available to explain the source of investment in the assets found during search. The manner in which the 13 A.Y. 2007-08 assessee has filed his returns of income originally leaves much to be desired even if we find it expedient to accept the proposition of assessee in-principle that the amount of depreciation allowance in Trucking business is available as a cash in-flow. It is equally true that the Assessing Officer has also dismissed the plea of the assessee on a mere presumption that such cash flow would have been used by the assessee is in his Trucking business.
14. In so far as the order of the CIT(A) is concerned his inference that even after the considering the depreciation as a source of cash in the Receipts and Payments Account, the resultant cash balance remained the same as stated in the Balance-sheet originally filed is concerned, the same in our view, is misplaced. Firstly, we find that such an exercise carried out by the CIT(A) in relation to the period 01.04.2005 to 31.03.2006 as discussed by him in the order of the assessment year 2003-04 dated 27.03.2012 contains some inherent errors. In the said Receipts and Payments Account, certain items have been considered which are of non-cash in nature for instance, interest accrued on NSC, etc. whereas only transactions of pure cash are required to be considered while preparing the Receipts and Payments Account. Moreover, once it is not in dispute that the assessee was not maintaining any books of account, the reliance placed by the CIT(A) on the cash balance depicted in Balance-sheet originally filed is quite misplaced, as such a Balance-sheet is obviously unreliable. In-fact, the Assessing Officer has noticed that in the original return there was no statement of affairs filed which could show inter- alia, show cash balance at the end of the year. Therefore, considering the overall facts and circumstances of the case, the CIT(A) was not justified in altogether denying the case of the assessee.
15. In the final analysis, what we find is that there is no adequate material to correctly ascertain the amount of cash available with the assessee against the depreciation allowed while determining the income from Trucking 14 A.Y. 2007-08 business. In the cash-flow statements prepared by the assessee during the post-search assessments, the depreciation allowable in each year has been fully considered as a source of cash. Per contra, the Revenue has declined the claim in toto. Having regard to the totality of facts and circumstances of the case, in our view, the only way forward for resolving the controversy is to make an estimation of the amount of cash available corresponding to the depreciation allowance, keeping in mind that there is no clinching material on either side to say as to whether or not cash equivalent to the depreciation has been utilized by the assessee fully or otherwise in his Trucking business in the respective years. Therefore, we deem it fit and proper to direct the Assessing Officer to allow credit to the extent of 40% of the claim made by the assessee in the cash-flow statements for each year. Needless to say, the Assessing Officer shall allow assessee a reasonable opportunity to re-work the cash-flow statements on the aforesaid basis and thereafter the Assessing Officer shall recompute the total incomes accordingly as per law. Thus, assessee partly succeeds on Ground of Appeal No. 2.
16. The last ground in this appeal is with regard to levy of interest under Sections 234A, 234B and 234C of the Act which is consequential in nature.
17. In the result, appeal of the assessee in ITA No. 872/PN/2013 is partly allowed.
18. In view of our decision in Ground of Appeal No. 2 of ITA No.872/PN/2013 (supra) relating to assessee's claim for the depreciation as cash in-flow, the similar Grounds raised in other captioned appeals are also liable to be decided accordingly, as it was a common point between the parties that the facts and circumstances in all the appeals are similar with respect to the said dispute.
15
A.Y. 2007-08
19. ITA No.30/PN/2013 is an appeal by the assessee (Jagdishsingh Amritsingh Bindra) directed against an order of the Commissioner of Income Tax (Appeals)-II, Nashik dated 06.03.2013 which, in turn, has arisen from an order dated 24.12.2008 passed by the Assessing Officer, under Section 143(3) of the Act, pertaining to the assessment year 2007-08. In the Memo of Appeal, the Ground of Appeal No. 1 is read as under :-
"1. On the facts and circumstances of the case and in law since the assessment year under appeal is the year in which search and seizure action was conducted under S. 132(1) of the Act. Therefore, in view of settled position of law by orders and judgments of co-ordinate Benches of Tribunal and also the judicial precedent of Hon'ble High Court of Kerala reported as Dr. K. M. Mehboob vs. Dy. CIT &Anr. (2012) 76 DTR (Ker) 90, the assessment of the year in which search took place should have been completed under S. 153A or 153C of the Act, as the case may be. The assessment of the year under appeal completed under S.143(3) is vitiated in law and is without jurisdiction. The same be quashed."
20. The said Ground is relating to the validity of assessment completed by the Assessing Officer which was hitherto not raised before the lower authorities. But, being a point of law, the same is admitted for adjudication in the light of the judgement of Hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. vs. CIT, (1998) 229 ITR 383.
21. As mentioned here-in-above, there was a search and seizure action against the Bindra Group u/s. 132(1) of the Act on 15-03-2007. In consequence of search and seizure operation the assessments upto the A.Y. 2006-07have been completed u/s. 153A or 153C r.w.s. Sec. 143(3) of the Act save the A.Y. 2007-08 for which year the assessments have been completed u/s. 143(3) of the Income-tax Act. The Learned Counsel submits that the assessments completed for the A.Y. 2007-08 are without jurisdiction and void ab initio as those assessments ought to have been made u/s. 153A r.w.s. 143(3) of the Act. He has placed his reliance on the following decisions:
1. Dr. K.M. MahaboobVs. DCIT &Anr. (2012) 76 DTR (Ker) 90.16
A.Y. 2007-08
2. M/s. BahubaliNeminathMuttin Vs. ACIT, Central Circle-I, Belgaum, ITA Nos. 161 &165/PN/2010 order dated 08-07-2011.
3. Dr.MansukhKanjibhai Shah Vs. ACIT (2010) 36 (II) ITCL 62 (Ahd) order dated 21-05-2010.
4. DCIT, Circle-1(1), Ujjain Vs. Sushil Kumar Jain (2010) 127 ITD 264 (INDORE).
5. M/s. Giridhar& Sons Vs. JCIT (OSD) Central Circle, Kolhapur, ITA No. 1358/PN/2007 order dated 30-08-2011.
We have also heard the Ld. DR.
22. In the case of Dr. K.M. Mahaboob (supra),batch of writ petitions were filed with prayer to quash the assessment orders passed, in consequence of the search and seizure action (u/s. 144 r.w.s. Sec. 153A and 153C of the Act) for the A.Ys. 2003-04 to 2009-10. It was the case of the assessee-petitioner that notices u/s. 153A were issued only for the A.Ys. 2003-04 to 2008-09 and there was no notice for the A.Y. 2009-10. It was also stated that the six assessment years in respect of which assessment could have been made u/s. 153A were the A.Ys. 2003-04 to 2008-09 and that the assessment for the A.Y. 2009-10 was also made u/s. 144 r.w.s. 153C of the Act which was patently illegal (Para No. 13 of the judgment). The Department resisted the said statement of the assessee by filing the affidavit in reply which is as under:
"14. In view of the aforesaid contentions raised, an additional statement dt. 14th March, 2011 has been filed on behalf of the respondent. Insofar as the validity of the assessment for the year 2009-10 is concerned, in the additional statement it has been stated thus :
"2. In para No. 3 of the reply-affidavit the petitioner is trying to establish that the assessment made for asst. yr. 2009-10 is illegal since the assessment should have been made only from asst. yr. 2003-04 to asst. yr. 2008-09 i.e. fox six assessment years only and not for asst. yr. 2009-10. This argument is wrong for the following reasons:
(a) As per the provisions of the Act the assessment in such cases shall be made for six assessment years immediately preceding the assessment year relevant to the previous year in which the search is conducted or requisition is made. The relevant search in this case was conducted in the financial year 2008-09 which is relevant to the asst. yr. 2009-10. Hence, the six assessment 17 A.Y. 2007-08 years will be 2003-04, 2004-05, 2005-06, 2006-07, 2007-08 and 2008-09.
Accordingly notices under s. 153A r/w s. 153C were issued for these years.
(b) As per the existing instructions all search and seizure cases have to be compulsorily scrutinized for the relevant assessment year. That means the assessee's assessment for the asst. yr. 2009-10 had to be completed under s. 143(3). Since the assessee had not filed his return a notice under s. 142(1) was issued calling for his return. The assessee did not respond to this notice nor did he co-operate in completing the assessment which was therefore completed under s. 144. No notice under s. 153A was issued for the asst. yr. 2009-10. For these reasons the assessee's observation is against facts."
23. In sum and substance, the case of the revenue was that for the A.Y. 2009-10 the assessment had to be completed u/s. 143(3) of the Act and the assessee was also issued a notice u/s. 142(1) calling for return for the said year. Finally the assessment was completed u/s. 144 of the Act and no notice was issued u/s. 153A for the A.Y. 2009-10. The Hon'ble High Court finally dismissed the writ petition. In our opinion decision relied on by Ld. Counsel in Dr.K.M. Mahaboob (supra) in fact support case of the Revenue.
24. The Tribunal has occasion to consider the identical issue in the case of AkbaniSalim Abdul GaffarVs. DCIT, Central Circle, Kolhapur, ITA No. 873/PN/2008 order dated 31-08-2012. In the said case, the assessment was completed u/s. 143(3) for the A.Y. 2005-06 and the assessee took the stand that the Assessing Officer was legally bound to pass the assessment order u/s. 153A/153B of the Act as there was a search and seizure action against the assessee u/s. 132 of the Act on 02-02-2005. In the said decision this Tribunal has considered the decisions relied on by the Learned Counsel in the following cases - (1) Sushil Kumar Jain (supra), (2) M/s. BahubaliNeminathMuttin (supra) and (3) Dr.MansukhKanjibhai Shah (supra). The operative part of the decision is as under:
8. We find that the contention of the Ld. Counsel is well supported by the decision in the case of ShriSushil Kumar Jain (Supra) as well as M/s.
BahubaliNeminathMuttin (Supra). In the case of ShriSushil Kumar Jain which is the lead case and has held by the co-ordinate Bench even in respect of the 18 A.Y. 2007-08 assessment relevant to the previous year in which the warrant of authorization is executed, should also to be made in compliance with the provisions of Sec. 153A and 153B.
9. In the assessment order, Section 143(3) is mentioned, can it be said that the assessee's assessment is not in conformity as contemplated in the provisions 153A, 153B and 153C ? So far as the time limit for assessment is concerned, it is provided in Sec. 153B(1)(b). The Ld Counsel fairly admitted that the assessment is completed as per the time limit as povided in the said proviso i.e. within the period of 2 years from the end of F.Y. 2004-05 as admittedly, the assessment is completed on 29.12.2006. Hence, the A.O has made the compliance of the mandatory condition in completing the assessment as provided u/s. 153B(1)(b) of the Act.
10. Then next question which arises for consideration is whether the A.O has considered the seized material found during the course of search for framing the assessment of the assessee or not. We find that the A.O has considered the seized material found during the course of search and the assessment is not merely based on the books of account and record produced by the assessee during the course of the assessment proceedings. What is to be seen in the substance of the assessment order and not merely format of an order. In our opinion, merely because Sec. 143(3) is typed by the A.O but otherwise, the substance of the assessment is in conformity that the assessment as contemplated u/s 153A & 153B, the assessment order cannot be said to be unlawful. We, therefore, hold that the assessment order, as it is based on the seized material as well as as per post search enquiry, there is no infirmity in the assessment order. We, accordingly, dismiss the additional ground raised by the assessee.
25. On perusal of the impugned assessment orders, it is seen that the Assessing Officer has considered the income offered by the assessee during the course of search and seizure proceedings as well as the cash and jewellery found and seized. Moreover, said assessment has been completed within time specified u/s. 153B(1)(b) i.e. within period of two years from end of financial year in which search has taken place. Hence, otherwise also there is compliance of the mandatory condition in completing the assessment as provide u/s. 153B(1)(b) of the Act. We accordingly hold that there is no merit in the grounds taken by the assessee in A.Y. 2007-08 and respective ground is dismissed 19 A.Y. 2007-08
26. In Grounds of Appeal Nos. 3 and 4, which read as under :-
"3. On the facts and circumstances of the case and in law the Ld. CIT(A) was not justified in rejecting the claim of the appellant that the depreciation amount in respect of assessment completed under S.44AE represents accumulated cash balance in hand. It be held accordingly.
4. On the facts and circumstances of the case and in law the Ld. CIT(A) was not justified in sustaining the addition of Rs.4,93,400/- out of the addition made by the A.O. of Rs.8,00,000/- as unexplained cash balance and rejecting the cash flow statement submitted. The sustained addition being not according to law be deleted."
the only plea of the assessee is that assessee be allowed benefit of the depreciation as a cash in-flow to explain the sources of the impugned investments. This aspect has been dealt with by us in Ground of Appeal No. 2 in ITA No. 872/PN/2013 and the Assessing Officer is directed to apply the same and thereafter re-work the total income accordingly.
27. In the result, appeal of the assessee in ITA No.30/PN/2013 is partly allowed.
28. ITA No.33/PN/2013 is an appeal by the assessee directed against an order of the Commissioner of Income Tax (Appeals)-II, Nashik dated 29.11.2012 which, in turn, has arisen from an order dated 24.12.2008 passed by the Assessing Officer, under Section 143(3) of the Act, pertaining to the assessment year 2007-08.
29. The first issue in this appeal is similar to what has been dealt with by us in Ground of Appeal No. 1 in ITA No.30/PN/2013 and following the same, the said Ground is hereby rejected.
30. The only other Ground in this appeal is with regard to assessee's claim for availability of depreciation found as a cash in-flow. This aspect has been 20 A.Y. 2007-08 dealt with by us in Ground of Appeal No. 2 in ITA No. 872/PN/2013 and the Assessing Officer is directed to apply the same and thereafter re-work the total income accordingly.
31. In the result, appeal of the assessee in ITA No.33/PN/2013 is partly allowed.
32. ITA No.868/PN/2013 is an appeal by the assessee directed against an order of the Commissioner of Income Tax (Appeals)-II, Nashik dated 06.03.2013 which, in turn, has arisen from an order dated 24.12.2008 passed by the Assessing Officer, under Section 153A read with Section 143(3) of the Act, pertaining to the assessment year 2001-02.
33. In this appeal, the first Ground is relating to the validity of assessment order under Section 153A of the Act which has not been pressed at the time of hearing and accordingly, this Ground is dismissed.
34. The only other Ground in this appeal is with regard to assessee's claim for availability of depreciation found as a cash in-flow. This aspect has been dealt with by us in Ground of Appeal No. 2 in ITA No. 872/PN/2013 and the Assessing Officer is directed to apply the same and thereafter re-work the total income accordingly.
35. In the result, appeal of the assessee in ITA No.868/PN/2013 is partly allowed.
36. ITA No.1050/PN/2012 is an appeal by the assessee is directed against an order of the Commissioner of Income Tax (Appeals)-II, Nashik dated 02.03.2012 which, in turn, has arisen from an order dated 24.12.2008 passed 21 A.Y. 2007-08 by the Assessing Officer, under Section 153A read with Section 143(3) of the Act, pertaining to the assessment year 2004-05.
37. The only Ground in this appeal is with regard to assessee's claim for availability of depreciation found as a cash in-flow. This aspect has been dealt with by us in Ground of Appeal No. 2 in ITA No. 872/PN/2013 and the Assessing Officer is directed to apply the same and thereafter re-work the total income accordingly.
38. In the result, appeal of the assessee in ITA No. 1050/PN/2012 is partly allowed.
39. ITA No.1051/PN/2012 is an appeal by the assessee is directed against an order of the Commissioner of Income Tax (Appeals)-II, Nashik dated 02.03.2012 which, in turn, has arisen from an order dated 24.12.2008 passed by the Assessing Officer, under Section 153A read with Section 143(3) of the Act, pertaining to the assessment year 2004-05.
40. In this appeal the only point raised by the assessee is to allow the benefit of the depreciation as cash in-flow in order to explain the addition of Rs.50,000/- representing investment in KVP which has been considered to be unexplained. This aspect has been dealt with by us in Ground of Appeal No. 2 in ITA No. 872/PN/2013 and the Assessing Officer is directed to apply the same and thereafter re-work the total income accordingly.
41. In the result, appeal of the assessee in ITA No. 1051/PN/2012 is partly allowed.
42. ITA No.29/PN/2013 is an appeal by the assessee is directed against an order of the Commissioner of Income Tax (Appeals)-II, Nashik dated 22 A.Y. 2007-08 31.10.2012 which, in turn, has arisen from an order dated 24.12.2008 passed by the Assessing Officer, under Section 143(3) of the Act, pertaining to the assessment year 2007-08.
43. The first issue in this appeal is similar to what has been dealt with by us in Ground of Appeal No. 1 in ITA No.30/PN/2013 and following the same, the said Ground is hereby rejected.
44. The only other Ground in this appeal is with regard to assessee's claim for availability of depreciation as a cash in-flow. This aspect has been dealt with by us in Ground of Appeal No. 2 in ITA No. 872/PN/2013 and the Assessing Officer is directed to apply the same and thereafter re-work the total income accordingly.
45. In the result, appeal of the assessee in ITA No.32/PN/2013 is partly allowed.
46. ITA No.379/PN/2012 is an appeal by the assessee is directed against an order of the Commissioner of Income Tax (Appeals)-II, Nashik dated 24.01.2012 which, in turn, has arisen from an order dated 24.12.2008 passed by the Assessing Officer, under Section 153A read with Section 143(3) of the Act, pertaining to the assessment year 2001-02.
47. In this appeal the only point raised by the assessee is to allow the benefit of the depreciation as cash in-flow in order to explain the addition of Rs.50,000/- made by the Assessing Officer representing repayment of loan in cash to Raj Mohan builders. This aspect has been dealt with by us in Ground of Appeal No. 2 in ITA No. 872/PN/2013 and the Assessing Officer is directed to apply the same and thereafter re-work the total income accordingly. 23
A.Y. 2007-08
48. In the result, appeal of the assessee in ITA No. 379/PN/2012 is partly allowed.
49. ITA No.380/PN/2012 is an appeal by the assessee is directed against an order of the Commissioner of Income Tax (Appeals)-II, Nashik dated 24.01.2012 which, in turn, has arisen from an order dated 24.12.2008 passed by the Assessing Officer, under Section 153A read with Section 143(3) of the Act, pertaining to the assessment year 2002-03.
50. In this appeal the only point raised by the assessee is to allow the benefit of the depreciation as cash in-flow in order to explain the addition of Rs.25,000/- made by the Assessing Officer representing repayment of loan in cash to Madhushree Apartment. This aspect has been dealt with by us in Ground of Appeal No. 2 in ITA No. 872/PN/2013 and the Assessing Officer is directed to apply the same and thereafter re-work the total income accordingly.
51. In the result, appeal of the assessee in ITA No. 380/PN/2012 is partly allowed.
52. ITA No.377/PN/2012 is an appeal by the assessee is directed against an order of the Commissioner of Income Tax (Appeals)-II, Nashik dated 24.01.2012 which, in turn, has arisen from an order dated 24.12.2008 passed by the Assessing Officer, under Section 153A read with Section 143(3) of the Act, pertaining to the assessment year 2001-02.
53. In this appeal the only point raised by the assessee is to allow the benefit of the depreciation as cash in-flow in order to explain the addition of Rs.50,000/- made by the Assessing Officer representing repayment of loan in cash to Raj Mohan builders. This aspect has been dealt with by us in Ground 24 A.Y. 2007-08 of Appeal No. 2 in ITA No. 872/PN/2013 and the Assessing Officer is directed to apply the same and thereafter re-work the total income accordingly.
54. In the result, appeal of the assessee in ITA No. 377/PN/2012 is partly allowed.
55. ITA No.378/PN/2012 is an appeal by the assessee is directed against an order of the Commissioner of Income Tax (Appeals)-II, Nashik dated 24.01.2012 which, in turn, has arisen from an order dated 24.12.2008 passed by the Assessing Officer, under Section 153A read with Section 143(3) of the Act, pertaining to the assessment year 2001-02.
56. In this appeal the only point raised by the assessee is to allow the benefit of the depreciation as cash in-flow in order to explain the addition of Rs.25,000/- made by the Assessing Officer representing repayment of loan in cash to Raj Mohan builders. This aspect has been dealt with by us in Ground of Appeal No. 2 in ITA No. 872/PN/2013 and the Assessing Officer is directed to apply the same and thereafter re-work the total income accordingly.
57. In the result, appeal of the assessee in ITA No. 378/PN/2012 is partly allowed.
58. ITA No.31/PN/2013 is an appeal by the assessee is directed against an order of the Commissioner of Income Tax (Appeals)-II, Nashik dated 31.10.2012 which, in turn, has arisen from an order dated 24.12.2008 passed by the Assessing Officer, under Section 143(3) of the Act, pertaining to the assessment year 2007-08.
25
A.Y. 2007-08
59. The first issue in this appeal is similar to what has been dealt with by us in Ground of Appeal No. 1 in ITA No.30/PN/2013 and following the same, the said Ground is hereby rejected.
60. The only other Ground in this appeal is with regard to assessee's claim for availability of depreciation as a cash in-flow. This aspect has been dealt with by us in Ground of Appeal No. 2 in ITA No. 872/PN/2013 and the Assessing Officer is directed to apply the same and thereafter re-work the total income accordingly.
61. In the result, appeal of the assessee in ITA No.31/PN/2013 is partly allowed.
62. ITA No.381/PN/2012 is an appeal by the assessee is directed against an order of the Commissioner of Income Tax (Appeals)-II, Nashik dated 25.01.2012 which, in turn, has arisen from an order dated 24.12.2008 passed by the Assessing Officer, under Section 153A read with Section 143(3) of the Act, pertaining to the assessment year 2001-02.
63. In this appeal the only point raised by the assessee is to allow the benefit of the depreciation as cash in-flow in order to explain the addition of Rs.20,000/- made by the Assessing Officer representing repayment of loan in cash to Raj Mohan builders. This aspect has been dealt with by us in Ground of Appeal No. 2 in ITA No. 872/PN/2013 and the Assessing Officer is directed to apply the same and thereafter re-work the total income accordingly.
64. In the result, appeal of the assessee in ITA No. 381/PN/2012 is partly allowed.
26
A.Y. 2007-08
65. ITA No.382/PN/2012 is an appeal by the assessee is directed against an order of the Commissioner of Income Tax (Appeals)-II, Nashik dated 25.01.2012 which, in turn, has arisen from an order dated 24.12.2008 passed by the Assessing Officer, under Section 153A read with Section 143(3) of the Act, pertaining to the assessment year 2004-05.
66. In this appeal the only point raised by the assessee is to allow the benefit of the depreciation as cash in-flow in order to explain the addition of Rs.25,000/- made by the Assessing Officer representing repayment of loan in cash to Raj Mohan builders. This aspect has been dealt with by us in Ground of Appeal No. 2 in ITA No. 872/PN/2013 and the Assessing Officer is directed to apply the same and thereafter re-work the total income accordingly.
67. In the result, appeal of the assessee in ITA No. 382/PN/2012 is partly allowed.
68. ITA No.383/PN/2012 is an appeal by the assessee is directed against an order of the Commissioner of Income Tax (Appeals)-II, Nashik dated 25.01.2012 which, in turn, has arisen from an order dated 24.12.2008 passed by the Assessing Officer, under Section 153A read with Section 143(3) of the Act, pertaining to the assessment year 2005-06.
69. The only Ground in this appeal is with regard to assessee's claim for availability of depreciation as a cash in-flow. This aspect has been dealt with by us in Ground of Appeal No. 2 in ITA No. 872/PN/2013 and the Assessing Officer is directed to apply the same and thereafter re-work the total income accordingly.
27
A.Y. 2007-08
70. In the result, appeal of the assessee in ITA No.383/PN/2012 is partly allowed.
71. ITA No.1052/PN/2012 is an appeal by the assessee is directed against an order of the Commissioner of Income Tax (Appeals)-II, Nashik dated 14.03.2012 which, in turn, has arisen from an order dated 24.12.2008 passed by the Assessing Officer, under Section 153A read with Section 143(3) of the Act, pertaining to the assessment year 2002-03.
72. The first issue in this appeal is with regard to assessee's claim for availability of depreciation as a cash in-flow. This aspect has been dealt with by us in Ground of Appeal No. 2 in ITA No. 872/PN/2013 and the Assessing Officer is directed to apply the same and thereafter re-work the total income accordingly.
73. In so far as the Grounds of Appeal No. 2 and 3 with regard to addition of Rs.25,000/- as unexplained investment, only plea raised by the assessee was to allow benefit of the amount of depreciation as cash in-flow in order to explain the aforesaid investments. Our decision in Ground of Appeal No. 1 above covers the said controversy and the Assessing Officer is directd to re- work the aforesaid addition after applying the above decision. Thus, assessee partly succeeds on this Ground.
74. In the result, appeal of the assessee in ITA No.1052/PN/2012 is partly allowed.
75. ITA No.329/PN/2012 is an appeal by the assessee is directed against an order of the Commissioner of Income Tax (Appeals)-II, Nashik dated 08.12.2012 which, in turn, has arisen from an order dated 24.12.2008 passed 28 A.Y. 2007-08 by the Assessing Officer, under Section 153A read with Section 143(3) of the Act, pertaining to the assessment year 2001-02.
76. The only Ground in this appeal is with regard to assessee's claim for availability of depreciation as a cash in-flow. This aspect has been dealt with by us in Ground of Appeal No. 2 in ITA No. 872/PN/2013 and the Assessing Officer is directed to apply the same and thereafter re-work the total income accordingly.
77. In the result, appeal of the assessee in ITA No. 329/PN/2012 is partly allowed.
78. ITA Nos.330 to 332/PN/2012 is appeal by the assessee are directed against an order of the Commissioner of Income Tax (Appeals)-II, Nashik dated 08.12.2012 which, in turn, have arisen from an order dated 24.12.2008 passed by the Assessing Officer, under Section 153A read with Section 143(3) of the Act, pertaining to the assessment years 2002-03 to 2004-05.
79. The only Ground in these appeals are with regard to assessee's claim for availability of depreciation as a cash in-flow. This aspect has been dealt with by us in Ground of Appeal No. 2 in ITA No. 872/PN/2013 and the Assessing Officer is directed to apply the same and thereafter re-work the total income accordingly.
80. In the result, appeals of the assessee in ITA Nos. 330 to 332/PN/2012 are partly allowed.
81. Resultantly, appeals of the respective assessees are partly allowed as above.
29
A.Y. 2007-08 Order pronounced in the open Court on 29 th August, 2013.
Sd/- Sd/-
(R.S. PADVEKAR) (G.S. PANNU)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Pune, Dated: 29 th August, 2013
Sujeet
Copy of the order is forwarded to: -
1) The Assessee;
2) The Department;
3) The CIT(A)-II, Nashik;
4) The CIT-II, Nashik;
5) The DR, "B" Bench, I.T.A.T., Pune;
6) Guard File.
By Order
//True Copy//
Sr. Private Secretary
I.T.A.T., Pune