Income Tax Appellate Tribunal - Raipur
Trilok Singh Dhillon, Bhilai vs The Deputy Commissioner Of Income Tax, ... on 17 April, 2024
आयकर अपील य अ धकरण यायपीठ रायपरु म।
IN THE INCOME TAX APPELLATE TRIBUNAL,
RAIPUR BENCH, RAIPUR
BEFORE SHRI RAVISH SOOD, JUDICIAL MEMBER
AND
SHRI ARUN KHODPIA, ACCOUNTANT MEMBER
आयकर अपील सं. / ITA No. 114/RPR/2018
नधारण वष / Assessment Year : 2007-08
Trilok Singh Dhillon
Nehru Nagar (East)
Bhilai, Dist. Durg (C.G.)
PAN : ACQPD6148N
.......अपीलाथ / Appellant
बनाम / V/s.
The Deputy Commissioner of Income Tax-1(1),
Bhilai (C.G.)
...... यथ / Respondent
Assessee by : Shri S.R. Rao, Advocate
Revenue by : Shri S.K Meena, CIT-DR
सुनवाई क तार ख / Date of Hearing : 22.01.2024
घोषणा क तार ख / Date of Pronouncement : 17.04.2024
2
Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai
ITA No. 114/RPR/2018
आदे श / ORDER
PER RAVISH SOOD, JM:
The present appeal filed by the assessee is directed against the order passed by the Commissioner of Income-Tax (Appeals)-II, Raipur, dated 05.04.2018 which arises from the order passed by the A.O under Section 143(3)/254 of the Income-tax Act, 1961 (in short 'the Act') dated 30.03.2016 for assessment year 2007-08. The assessee has assailed the impugned order on the following grounds of appeal:
"1. In the facts and circumstances of the case and in law, the learned Commissioner of Income-tax (Appeals) has erred in confirming the disallowance of Rs.10,28,653/- made u/s.40A(3) in respect of payment made to dealers authorized by the Government of Punjab for sale of liquor on wholesale basis overlooking the law laid down in the case of Ram Nagar Pachwani (S) Shop vs. ITO, Asansol and Hon'ble Jurisdictional High Court in the case of ACIT vs. R.P. Real Estate Pvt. Ltd (2016) 95 CCH 0086 (Chhat.HC).
2. In the facts and circumstances of the case and in law, the learned Commissioner of Income-tax (Appeals) has erred in confirming addition of Rs.7,78,99,000/- made on account of undisclosed investment in purchase of demand draft solely on the basis of findings contained in original assessment order and overlooking inquiry report obtained during set-aside assessment proceedings.
3. The impugned order is bad in law and on facts.
4. The appellant reserves the right to add, alter, amend or omit all or any of the grounds of appeal."
The assessee has also raised additional grounds of appeal which read as under:
"1. In the facts and circumstances of the case and in law the assessment order passed on the basis of notice issued u/s.143(2) of the Income-tax Act, 1961 in violation of Scrutiny Guidelines issued by CBDT is illegal and without jurisdiction.3
Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018
2. In the facts and circumstances of the case and in law the ld. Assessing Officer has erred in issuing notice u/s.143(2) without obtaining approval of the Chief Commissioner of Income-tax, Raipur.
3. In the facts and circumstances of the case and in law the assessment order passed u/s.143(3) of the Act is illegal and without jurisdiction because the proceedings were initiated on the basis of search conducted in Amolak Singh Bhatia group of cases of Bilaspur and in such circumstances the proceedings should have been initiated u/s.153C of the Income-tax Act.
4. In the facts and circumstances of the case and in law the ld. Assessing Officer has erred in making addition of Rs.7,78,99,000/- without any material for said quantification except purported statement of third party that too without supplying it and without allowing cross-examination of the deponent which is against law laid down by Hon'ble Supreme Court in the case of Andaman Timber Industries vs. CCE reported in 2015 (10) TMI 442 - Supreme Court.
5. In the facts and circumstances of the case and in law ld. Assessing Officer has erred in making the addition of Rs.7,78,99,000/ - without conducting inquiry from the persons who were referred as associates of Appellant or from the Excise Department despite specific request made by Appellant.
6. In the facts and circumstances of the case ld. Assessing Officer has erred in making addition of Rs.7,78,99,000/ - misquoting the reply of the Bank Manager during set-aside assessment proceedings."
Although the scope of the present second round of litigation is circumscribed by the order passed by the Tribunal in ITA No.180/BLPR/2010 dated 17.12.2014, but as the assessee by raising the additional grounds of appeal has sought our indulgence for adjudication of certain legal issues and also, the sustainability of the impugned order which is stated to have been passed in violation of the principles of natural justice, which would not require looking any further beyond the facts available on record, therefore, we have no hesitation in admitting the same. Our aforesaid view that where an assessee, had raised, though for the first time, an additional ground of appeal before the Tribunal which involves purely a question of law and requires no 4 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 further verification of facts, then, the same merits admission finds support from the judgment of the Hon'ble Supreme Court in the case of National Thermal Power Company Ltd. Ltd. Vs. CIT (1998) 229 ITR 383 (SC).
2. It is the second round of litigation before us. Facts, in brief, are that the assessee had filed his return of income for A.Y.2007-08 on 31.03.2008, declaring an income of Rs.32,42,140/-. The assessment was completed by the A.O. vide his order passed u/s. 143(3) dated 31.12.2009 wherein after, inter alia, making the following additions/disallowances the total income of the assessee was determined at Rs.8,24,17,920/-:
Sr. No. Particulars Amount
1. Disallowance u/s. 40A(3) of the Act Rs.10,28,653/-
2. N.P addition Rs.1,37,320/-
3. Addition on a/c of undisclosed investment in 7,78,99,000/-
bank drafts
4. Addition on a/c of leakage expenses Rs.1,10,805/-
3. On appeal, the CIT(Appeals) vide his order dated 30.03.2010 deleted some of the additions/disallowances made by the A.O, viz. (i) disallowance u/s. 40A(3) of the Act: Rs.10,28,653/-; (ii) NP addition:1,37,320/-; (iii) addition made towards unexplained investment in bank drafts: Rs.,7,78,99,000/- and further allowed part- relief of the disallowance out of leakage expenses of Rs.1,10,805/-. 5
Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018
4. The department being aggrieved with the order of the CIT(Appeals), dated 30.03.2010 carried the matter in appeal before the Tribunal. The Tribunal vide its order passed in ITA No.180/BLPR/2010 dated 17.12.2014, inter alia, did not approve the relief that was allowed by the CIT(Appeals) both on account of undisclosed investment in bank drafts and disallowance u/s. 40A(3) of the Act, and restored the said matters to the file of the A.O. with a direction to decide the same afresh after affording a reasonable opportunity of being heard to the assessee.
5. The A.O. during the course of the set-aside proceedings conducted enquiries with the Chief Manager, State Bank of India, Branch: Civic Centre, Bhilai. On perusal of the record, the A.O. observed that Shri. T.S. Grewal, Chief Manager, State Bank of India, Branch: Civic Centre, Bhilai, vide his letter dated 12.02.2007 addressed to the regional office of the bank had stated that Shri Trilok Singh Dhillon had requested that as against the usual exchange/fees of Rs.30/- for preparation of a draft a lower exchange/fees of Rs.20/- be charged by the bank. The A.O. further observed that the competent authority had thereafter approved the aforesaid proposal for issuance of drafts at concessional exchange/fees. Also, the A.O. observed that Shri T.S. Grover (supra) had confirmed the aforesaid facts in his statement recorded by the Investigating Wing, Raipur on 25.04.2007. Although the A.O. in the course of the set-aside proceedings had called for certain information/details from the bank u/s. 133(6) of the Act, but the said request was turned down by the bank for the reason that as it being an old case the relevant documents had not been preserved. 6
Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018
6. Observing, that as neither any convincing explanation was filed by the bank, nor any fresh evidence was furnished by the assessee in the course of the set-aside proceedings, the A.O once again made an addition towards undisclosed investment in bank drafts of Rs.7,78,99,000/-. Also, the A.O in absence of any fresh explanation of the assessee as regards the disallowance u/s. 40A(3) of Rs. 10,28,653/- endorsed the view of his predecessor. Accordingly, the A.O vide his order passed u/ss. 143(3)/254 of the Act, dated 30.03.2016 after, inter alia, sustaining the subject additions/disallowances which were earlier made by his predecessor while framing the original assessment u/s.143(3), dated 31.12.2009, viz. (i) disallowance u/s. 40A(3) of the Act: Rs.10,28,653/-; and (ii) addition of undisclosed investment in bank drafts: Rs.7,78,99,000/- determined the income of the assessee at Rs.8,22,35,200/-.
7. Aggrieved the assessee carried the matter in appeal before the CIT(Appeals) but without success. Apropos the disallowance u/s. 40A(3) of the Act of Rs.10,28,653/-, the CIT(Appeals) vide his impugned order had sustained the same by observing as under:
"1.4 I have considered the grounds of appeal gone through the order of the AO and seen the submissions of the appellant. I find that the payments made by the appellant for purchases from distilleries have been made in cash and the persons to whom payments were made have recognized banking facilities. The appellant himself has stated that sale of liquor is controlled by State Excise Policy and hence payments are made to relevant persons as per norms. In his submissions the reasons postulated by the appellant that the wholesaler and distillers denied to receive cheques is not a justified proposition as in this context the appellant has not brought out cogent reasons and facts in support of the submissions made. Payments can be made by account transfers or by account payee DDs 7 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 which are acceptable norms of payments whose authenticity cannot be in doubt. In the original assessment completed the AO has tabulated the names of the parties to whom cash payments has been made and all of whom are engaged in established liquor business and for which no justification for cash payments has been made out by the appellant. In the pattern of payments made it is noticed that the receipts have been made in cash keeping each amount paid of Rs.20,000/- or less. In fact, in order of the hon'ble ITAT Raipur in ITA No.180/BLPR/2010 for A.Y. 2007-08 the Hon'ble Tribunal in setting aside the observations of CIT(A) held In the instant case, the Id. CIT(A) has deleted the addition without assigning any reason. The ld. CIT(A) observed that the disallowance which is covered by exceptions provided in Rule 6DD is not maintainable. However, the ld. CIT(A) has not given any instance where the A.O. has made disallowance only on the basis of section 40A(3) of the Act, overlooking Rule 6DD of the Income tax Rules, 1963. The onus was on the assessee to show that the payment made in cash exceeded an amount of Rs.20,000/- is covered by the exceptions provided in Rule 6DD. There is nothing on record to show that the impugned payments were covered by the specific exceptions provided in Rule 6DD of the Income tax Rules, 1961.
1.5 The Hon'ble Tribunal in their impugned decision categorically observed that there is nothing on record to show that the impugned payments were covered by the specific provisions provided in Rule 6DD of the Income Tax Rules, 1963. In the reassessment proceedings I observe that no new material has been brought on record in support of the claims made by the appellant. The position remains the same as it was during the original assessment proceedings. The appellant has not been able to demonstrate the mitigating circumstances as enjoined under rule 6DD in explaining the circumstances compelling Lim to make payments in cash exceeding the stipulated limit. The Hon'ble Gujarat High Court in the case of [CIT v. Hynoup Food & Oil Ind. (P) Ltd., (2005) 199 CTR (Guj) 350, 359 = (2007) 290 ITR 702] held the rule 6DD(j) can be applied only in cases where the genuineness of the payments is established, the payee is identified and only then the question as to whether the payment in cash was made in exceptional or unavoidable circumstances can be examined. The Hon'ble Kerala High Court in the case of [Silk Fab Exports v. CIT, (2007) 295 ITR 123, 126(Ker)] held that the Rule 6DD(j) is not applicable as all the suppliers to whom the payments were made are well established business concerns. I have not come across any cogent reasons adduced by the appellant for the exceptional or unavoidable circumstances for making the impugned payments above the stipulated limit in cash. Accordingly, the addition is confirmed and this ground of appeal is dismissed."8
Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 As regards the addition of Rs. 7,78,99,000/- made by the A.O on account of undisclosed investment made by the assessee in bank drafts, the CIT(Appeals) sustained the same by observing as under:
"1.8 I have considered the grounds of appeal gone through the order of the A.O. and seen the submissions of the appellant. I find that the A.O. had accorded proper opportunity to the appellant regarding the enquiries conducted by him from the Bank with respect to the Bank Drafts issued. The letter of the Bank Manager also does not convey that the impugned drafts were not made by the appellant. It was Incumbent upon the appellant to bring on record cogent material evidences that the drafts did not pertain to the appellant and his associates. In fact significant observation has been made by the AO in the original assessment wherein he has categorically mentioned that the enquires conducted by him and the replies obtained from the Bank Manager was confronted to the appellant for his comments and for which no satisfactory replies were furnished by the appellant. The relevant portion of the AO's observation on this issue from the original assessment is extracted herein below:-
Information was received form ACIT-1(1), Bilaspur vide letter dated 15/09/08 No. 743 regarding Enbloc preparation of bank drafts by Shri Trilok Singh Dhillon, the assessee. It was informed that during post search investigation in the Amolak Singh Bhatia group of cases of Bilaspur, it was observed that Shri Trilok Singh Dhillon made a verbal request to his banker, SBI, Civic Centre, Bhilai. Acting on this request the branch manager, vide letter dt. 12/02/07 sought permission from the Regional Officer regarding issue of drafts on concessional commission rates. Vide letter dated 22/02/07 addressed to the Chief Manager, SBI, IP Branch, Bhilai, the regional manager Sal conveyed his approval for issue of drafts on concessional commission rates. Therefore, the total of 33933 DDs amounting to Rs.7,78,99,000/- were made. For preparation of these DDs a total of 1792 vouchers filled in the name of various persons, filled in hand-writing of a set of few persons were submitted to the bank along with cash. These facts were duly confirmed by Shri T.S. Grover, Chief Manager, SBI, IP Branch, Bhilai in his statement dated 25/04/07 given before the officers of investigation wing, Raipur.
During the course of assessment proceedings a letter dated 12/02/07 from the Chief Manager to the AGM was obtained along with letter from the regional manager to the Chief Manager, SBI dated 22/02/07 the same were provided to the assessee for his comments.
1.9 From the above narration of facts extracted from the material on record it is clear that the evidences in the possession of the department 9 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 was confronted to the appellant and hence the burden was on the appellant to explain that the DDs issued at concessional rates for the liquor licenses had nothing to do with him. No statement from the bank or letter from the bank manager was obtained by the appellant in his support and assailing the views taken by the AO. It is clear from the facts that the DDs were issued only for country liquor shop licenses in bulk and not for different kind of payments and hence the bank would have little difficulty in stating that the DDs issued at concessional rates did not pertain to the appellant.
In the original DDs issued at concessional rates did not pertain to the appellant. In the original assessment the AO has quoted the language of the Chief Manager, SBI that indicates the relationship between the CM and the appellant leading to charging of lower exchange rates for the appellant. The extract from the original assessment order is extracted here in below :-
"We have been approached by our valued customer Shri T.S. Dhillion for want of draft on behalf of is various numbers of individual persons who will participate in allotment of Desi Sharab Theka through the Excise Department at various places with less exchange at Rs.20/- instead of usual exchange of Rs.30/-. We have examined his request and accepted to prepare draft of approximate quantity 50000 fifty thousand) of various denomination i.e. Rs.100/-, Rs.3000/-, and Rs.5000/- in cash at Rs.20/- exchange, for which we have already communicated to yourself.
In view of the above, looking the quantum of draft, connection with the customer, long association with the Bank and past satisfactory experience and conduct of the account, we recommended for remission in exchange of Rs.10/- on each draft.
Please accord your approval.
2.0 The above evidences have not been rebutted by the appellant either during the original assessment proceedings or during the subsequent assessment. In view of the above facts and circumstances no case has been made out by the appellant against the actions of the AO in making the addition on account of undisclosed investment in bank drafts which is hence confirmed, and this ground of appeal is dismissed.
In the result the appeal is dismissed."
8. The assessee being aggrieved with the order of the CIT(Appeals) has carried the matter in appeal before us.
10
Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018
9. The assessee based on the additional grounds of appeal has assailed the validity of the jurisdiction assumed by the A.O for framing assessment vide his order passed u/s.143(3) of the Act for two fold-reasons, viz. (i) that he had grossly erred in law and facts of the case in issuing notice u/s. 143(2) of the Act without obtaining the approval of the Chief Commissioner of Income Tax, Raipur as was mandatorily required as per the scrutiny guidelines issued by the CBDT; and (ii) as the proceedings in the assessee's case were initiated on the basis of search conducted on M/s. Amolak Singh Bhatia group of cases, Bilaspur, therefore, the assessment could have only been framed u/s. 153C of the Act.
10. Apropos the claim of the assessee that the A.O had grossly erred in assuming jurisdiction by not complying with the scrutiny guidelines issued by the CBDT as per which he was required to obtain approval of the Chief Commissioner of Income Tax, Raipur for issuance of notice u/s. 143(2) of the Act, we are unable to concur with the same. The Ld. AR in the course of hearing of the appeal had filed before us.
"Revised procedure for selection of cases for scrutiny for A.Y.2008-09", which inter alia, provides at Para-3 the seeking of approval of the Chief Commissioner of Income Tax for selecting the case of an assessee for compulsory scrutiny. The Ld. AR submitted that as the A.O while issuing notice u/s. 143(2) of the Act had not taken any approval of the Chief Commissioner of Income Tax as was mandatorily required, therefore, the assumption of jurisdiction on his part was bad in law and the consequential assessment so framed by him was liable to be quashed.11
Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018
11. We have thoughtfully considered the aforesaid claim of the Ld. AR and are unable to persuade ourselves to subscribe to the same. As the "Revised procedure for selection of cases for scrutiny" which contemplates obtaining of the approval of the Chief Commissioner of Income Tax, as had been filed before us pertains to A.Y.2008-09 and not the subject year, i.e. A.Y.2007-08, therefore, the same by no means could be pressed into service for assailing the validity of the jurisdiction assumed by the A.O for issuance of notice u/s. 143(2) of the Act. On being confronted with the fact, that the scrutiny guidelines as had been filed before us pertained to A.Y.2008-09 and were not for the subject year, i.e. A.Y.2007-08, the Ld. AR failed to rebut the same.
12. Considering the aforesaid facts, we find no substance in the contention of the Ld. AR who had assailed the validity of jurisdiction assumed by the A.O for the reason that he had issued notice u/s.143(2) of the Act without obtaining the approval of the Chief Commissioner of Income Tax, Raipur. Accordingly, Additional Grounds of Appeal Nos. 1 & 2 raised by the assessee being devoid and bereft of any merit are dismissed in terms of our aforesaid observations.
13. We shall now deal with the contention of the Ld. AR that as the proceedings in his case were initiated based on the information gathered during the course of search conducted on M/s. Amolak Singh Bhatia group of cases, Bilaspur, therefore, assessment in his case could have only been framed u/s. 153C of the Act. At the threshold we may herein observe that Section 153C of the Act, i.e. prior to its 12 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 amendment vide the Finance Act, 2015 w.e.f. 01.06.2015 read as under: (relevant extract) "153C. Assessment of income of any other person.
Notwithstanding anything contained in Section 139, Section 147, Section 148, Section 149, Section 151 and Section 153, where the Assessing Officer is satisfied that any money, bullion, jewellery or other valuable article or thing or books of account or documents seized or requisitioned belongs or belong to a person other than the person referred to in Section 153A, then the books of account or documents or assets seized or requisitioned shall be handed over to the Assessing Officer having jurisdiction over such other person..........."
(emphasis supplied by us) Accordingly, the pre-requisite for assuming jurisdiction u/s. 153C of the Act, inter alia, required that "documents seized or requisitioned belongs or belong to a person other than the person referred to in Section 153A of the Act." It was only vide the Finance Act, 2015 w.e.f. 01.06.2015 that an amendment was available on the statute, wherein, the term " belongs or belong to a person other than the person referred to in Section 153A of the Act" was substituted by "any books of account or documents, seized or requisitioned, pertains or pertain to, or any information contained therein relates to a person other than the person referred to in Section 153A."
14. Accordingly, upto 01.06.2015, for valid assumption of jurisdiction u/s. 153C of the Act, it was mandatorily required that the document seized during the course of search proceedings, belongs or belong to a person other than the person referred to 13 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 in Section 153A of the Act. In case the contents of the document seized or requisitioned though pertained to a third party but the document seized did not belong to such third party, then the A.O was divested from assuming jurisdiction in the case of said third party u/s. 153C of the Act. Our aforesaid view is fortified by the judgment of the Hon'ble High Court of Delhi in the case of Pepsico India Holding Pvt. Ltd. Vs. ACIT & Ors, WP (C) No.414 of 2014 dated 14.08.2014, wherein the Hon'ble High Court relying on its earlier order in the case of Pepsi Foods Pvt. Ltd. Vs. Assistant Commissioner of Income Tax, WP (C) No.415/2014 and Ors., had held as under:
"4. Before we examine these writ petitions in detail it would be pertinent to point out that recently in the case of Pepsi Foods Pvt. Ltd. Vs. Assistant Commissioner of Income Tax, WP (C) No.415/2014 and other connected matters, this court had occasion to examine the very provisions which are under consideration in the matters before us. In the judgement delivered on 07.08.2014 in the case of Pepsi Foods Pvt. Ltd. (supra), after examining the provisions of Sections 153C, 132(4A)(i) & 292C(1)(i) of the said Act, this Court had observed as under:
"6. On a plain reading of Section 153C, it is evident that the Assessing Officer of the searched person must be "satisfied" that inter alia any document seized or requisitioned "belongs to" a person other than the searched person. It is only then that the Assessing Officer of the searched person can handover such document to the Assessing Officer having jurisdiction over such other person (other than the searched person). Furthermore, it is only after such handing over that the Assessing Officer of such other person can issue a notice to that person and assess or re- assess his income in accordance with the provisions of Section 153A. Therefore, before a notice under Section 153C can be issued two steps have to be taken. The first step is that the Assessing Officer of the person who is searched must arrive at a clear satisfaction that a document seized from him does not belong to him but to some other person. The second step is - after such satisfaction is arrived at - that the document is handed over to the Assessing Officer of the person to whom the said document "belongs". In the present cases it has been 14 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 urged on behalf of the petitioner that the first step itself has not been fulfilled. For this purpose it would be necessary to examine the provisions of presumptions as indicated above. Section 132(4A)(i) clearly stipulates that when inter alia any document is found in the possession or control of any person in the course of a search it may be presumed that such document belongs to such person. It is similarly provided in Section 292C(1)(i). In other words, whenever a document is found from a person who is being searched the normal presumption is that the said document belongs to that person. It is for the Assessing Officer to rebut that presumption and come to a conclusion or "satisfaction" that the document in fact belongs to somebody else. There must be some cogent material available with the Assessing Officer before he/she arrives at the satisfaction that the seized document does not belong to the searched person but to somebody else. Surmise and conjecture cannot take the place of "satisfaction".
xxxx xxxx xxxx xxxx xxxx "11. It is evident from the above satisfaction note that apart from saying that the documents belonged to the petitioner and that the Assessing Officer is satisfied that it is a fit case for issuance of a notice under Section 153C, there is nothing which would indicate as to how the presumptions which are to be normally raised as indicated above, have been rebutted by the Assessing Officer. Mere use or mention of the word "satisfaction" or the words "I am satisfied" in the order or the note would not meet the requirement of the concept of satisfaction as used in Section 153C of the said Act. The satisfaction note itself must display the reasons or basis for the conclusion that the Assessing Officer of the searched person is satisfied that the seized documents belong to a person other than the searched person. We are afraid, that going through the contents of the satisfaction note, we are unable to discern any "satisfaction" of the kind required under Section 153C of the said Act."
Also, we may herein observe that the issue as to whether the amendment to Section 153C of the Act as had been made available on the statute vide the Finance Act, 2015 w.e.f.01.06.2015 would be prospective in nature had been looked into by the Hon'ble High Court of Gujrat in the case of Pr. CIT v. Hitesh Ashok Vaswani 15 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 (2023) 459 ITR 610 (Guj), wherein the Hon'ble High Court after exhaustive deliberations held as under:
"17. Hon'ble Gujarat High Court has formulated the following question "whether section 153C of the Act as amended w.e.f. 1.6.2015 would be applicable to cases where search initiated prior to that date ?"
After an elaborate discussion, Hon'ble court arrived at the conclusion that this section would be applicable prospectively only on the search conducted after 1.6.2015. We would like to take note of the relevant discussion made in the judgment, which reads as under:
"19.8 While it is true that section 153C of the Act is also a machinery provision for assessment of income of a person other than the person searched, in the opinion of this court, this is not a case where by virtue of the amendment, there is merely a change in the procedural provisions affecting the assessees who were covered by the unamended provision. By the amendment, a new class of assessees are sought to be brought within the sweep of section 153C of the Act, which affects the substantive rights of the assessees and cannot be said to be a mere change in the procedure. Since the amendment expands the scope of section 153C of the Act by bringing in an assessee if books of account or documents pertaining to him or containing information undefined relating to him have been seized during the course of search, within the fold of that section, this question assumes significance, inasmuch as in the facts of the present case, as on the date of search, it was only if such material belonged to a person other than the searched person, that the Assessing Officer of the searched person could record such satisfaction and forward the material to the Assessing Officer of such other person. However, subsequent to the date of search, the amendment has been brought into force and based on the amendment, the petitioners who were not included within the ambit of section 153C of the Act as on the date of the search, are now sought to be brought within its fold on the ground that the satisfaction note and notice under section 153C of the Act have been issued after the amendment came into force. Therefore, this case does not relate to the interpretation of the provisions of any of the sections, but relates to the stage at which the amended section 153C of the Act can be made applicable, as to whether it relates to the date of search; or the date of recording of satisfaction by the Assessing Officer of the searched person; or the date of recording of satisfaction by the Assessing Officer of the other person; or the date of issuance of notice under section 153C of the Act.
19.9 In the facts of the present case, the search was conducted in all the cases on a date prior to 1st June, 2015. Therefore, on the date of the 16 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 search, the Assessing Officer of the person searched could only have recorded satisfaction to the effect that the seized material belongs or belong to the other person. In the present case, the hard-disc containing in the information relating to the petitioners admittedly did not undefined belong to them, therefore, as on the date of the search, the essential jurisdictional requirement to justify assumption of jurisdiction under section 153C of the Act in case of the petitioners, did not exist. It was only on 1st June, 2015 when the amended provisions came into force that the Assessing Officer of the searched person could have formed the requisite belief that the books of account or documents seized or requisitioned pertain to or the information contained therein relates to the petitioners.
19.10 In this backdrop, to test the stage of applicability of the amended provisions, a hypothetical example may be taken. The search is carried out in the case of HN Safal group on 4.9.2013. If the Assessing Officer of the searched person had recorded satisfaction that some of the seized/requisitioned material belongs to a person other than the searched person and forwarded the material to the Assessing Officer of the other person, had issued notice under section 153C of the Act prior to the coming into force of the amended provision. The notice under section 153C of the Act was challenged before the appropriate forum on the ground that the seized material does not belong to such other person and such issue was decided in favour of such person on a finding that the seized material does not belong to the other person. Thereafter, in view of the amendment in section 153C (1) of the Act, since the books of account or documents did not belong to the other person but did pertain to him or the information contained therein related to him, can the Assessing Officer of the searched person once again record satisfaction as contemplated under the amended provision and forward the material to the Assessing Officer of such other person. The answer would be an emphatic "no" as the Assessing Officer of the searched person after recording the earlier satisfaction would have already forwarded the material to the Assessing Officer having jurisdiction over the other person, therefore, there would be no question of his again forming a satisfaction as required under the amended provisions of section 153C of the Act.
19.11 In the opinion of this court, if a date other than the date of search is taken to be the relevant date for the purpose of recording satisfaction one way or the other, it would result in an anomalous situation wherein in some cases, because the notices under section 153C of the Act were issued prior to the amendment, they would be set aside on the ground that the books of account or documents seized or requisition did not belong to the other person though the same pertained to or the information contained therein related to such person, whereas in other cases arising out of the same search proceedings, merely because the 17 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 notices are issued after the amendment, the same would be considered to be valid as the books of account or documents seized or requisitioned pertain to or the information contained therein relate to the other person. It could not have been the intention of the legislature to deal with two sets of identically situated persons differently, merely because in one case the Assessing Officer of the searched person records satisfaction as required under section 153C of the Act prior to the coming into force of the amended provisions and in any another case after the coming into force of the amended provisions.
19.12 In Pr. CIT v. Vinita Chaurasia, [2017] 394 ITR 758/248 Taxman 172/82 taxmann.com 153 (Delhi), the Delhi High Court has held that, at the outset, it requires to be noticed that the search in the present case took place on 19th June, 2009, i.e., prior to the amendment in section 153C(1) of the Act with effect from 1st June, 2015. Therefore, it is not open to the Revenue to seek to point out that the document in question 'pertains to' or 'relates to' the assessee. Against this decision the revenue filed a special leave petition before the Supreme Court being Pr. CIT v. Vinita Chaurasia [2018] 98 taxmann.com 414/259 Taxman 88 (SC) condoned the delay and dismissed the special leave petition. 19.13 In Pr. CIT v. Index Securities (P.) Ltd. , [2017] 86 taxmann.com 84 (Delhi), on which reliance had been placed on behalf of the petitioners, the Delhi High Court has held thus:
"28.4 The Supreme Court also agreed with the decision of the Gujarat High Court in Kamleshbhai Dharamshibhai Patel (supra) to the extent it held that "it is an essential condition precedent that any money, bullion or jewellery or other valuable articles or thing or books of account or documents seized or requisitioned should belong to a person other than the person referred to in Section 153A of the Act."
The Supreme Court observed: "This proposition of law laid down by the High Court is correct, which is stated by the Bombay High Court in the impugned judgment as well."
15. Accordingly, based on our aforesaid deliberations, we find that the post- amended Section 153C of the Act being prospective in nature would only be applicable to searches conducted after 01.06.2015. As in the case of the present assessee before us, the provisions of the pre-amended Section 153C of the Act were applicable, therefore, the claim of the assessee that the assessment in his case could 18 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 have only been framed u/s. 153C of the Act cannot be accepted. We, say so, for the reason that as the information gathered by the A.O in the course of search proceedings conducted on M/s. Amolak Singh Bhatia Group (supra) was not based on any document "belonging to the assessee", but in fact, was based on certain information pertaining to the assessee, therefore, the A.O could not have assumed jurisdiction u/s. 153C of the Act. Considering our aforesaid observations, we find no infirmity in the assumption of jurisdiction and framing of the consequential assessment by the A.O vide his order u/s. 143(3) of the Act dated 30.03.2016. Accordingly, Additional Ground of appeal No.3 raised by the assessee is dismissed in terms of our aforesaid observations.
16. Apropos the merits of the case, we have heard the ld. authorized representatives of both the parties, perused the orders of the lower authorities and the material available on record, as well as considered the judicial pronouncements that have been pressed into service by the Ld. AR to drive home his contentions.
17. Controversy involved in the present appeal hinges around the sustainability of the addition/disallowance made by the A.O, which thereafter had been approved by the CIT(Appeals) (in the second round of litigation), viz. (i). disallowance u/s. 40A(3) of the Act of the cash payments made by the assessee for purchase of liquor to wholesale dealers/distilleries authorized by the State Government of Punjab:
Rs.10,28,653/-; and (ii). addition made by the A.O. on account of undisclosed 19 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 investment made by the assessee in demand drafts prepared in the names of various persons : Rs.7,78,99,000/-.
18. Apropos the addition of Rs.7,78,99,000/- (supra) made by the A.O which, thereafter, had been approved by the CIT(Appeals) in the second round of litigation, the controversy lies in a narrow compass. The A.O. based on information gathered in the course of post search investigation in the case of Amolak Singh Bhatia (group of cases), observed that the assessee had made a verbal request to his banker, viz. State Bank of India, Branch: Civic Centre, Bhilai for issuance of "demand drafts" at concessional commission rates on behalf of various individual persons who were to participate in the allotment of licenses for selling country liquor. As is discernible from the assessment record the genesis of the controversy can be traced in a letter dated 12.02.2007 of the Chief Manager, State Bank of India, Branch: Civic Centre, Bhilai addressed to the regional office of the bank. On a perusal of the contents of the aforesaid letter dated 12.02.2007 (supra) which had been culled out in the order of the CIT(Appeals), it transpires that the Chief Manager, State Bank of India, Branch:
Civic Centre, Bhilai had mentioned that Shri Trilok Singh Dhillon, a valued customer of the bank, had requested that as against the usual exchange/fees of Rs.30/- for preparation of a draft a lower exchange/fees of Rs.20/- be charged by the bank. It is further stated in the letter that the bank after examining the request of Shri Trilok Singh Dhillon (supra) had accepted to prepare 50000 (fifty thousand) drafts of various denominations of Rs.100/-, Rs.3000/- and Rs.5000/- at an exchange/charge 20 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 of Rs.20/- as was earlier communicated to the regional office. The Chief Manager (supra) had further in his letter requested the regional office of the bank for remission of the exchange/fees of Rs.10/- on each draft. For the sake of clarity, the letter of the Chief Manager (supra) dated 12.02.2007 as reproduced in the CIT(Appeals)'s order is culled out as under:
"We have been approached by our valued customer Shri T.S. Dhillion for want of draft on behalf of is various numbers of individual persons who will participate in allotment of Desi Sharab Theka through the Excise Department at various places with less exchange at Rs.20/- instead of usual exchange of Rs.30/-. We have examined his request and accepted to prepare draft of approximate quantity 50000 fifty thousand) of various denomination i.e. Rs.100/- Rs.3000/- and Rs.5000/- in cash at Rs.20/- exchange, for which we have already communicated to yourself.
In view of the above, looking the quantum of draft, connection with the customer, long association with the Bank and past satisfactory experience and conduct of the account, we recommended for remission in exchange of Rs.10/- on each draft.
Please accord your approval."
19. On a perusal of the order of the Tribunal, dated 17.12.2014, it transpires that the order of the CIT(Appeals), to the extent he had vacated the addition of Rs.7,78,99,000/- made by the A.O regarding the unexplained investment of the assessee for purchase of drafts, was set aside, as it was found that the relief was granted based on general observations which were devoid and bereft of any cogent reasoning. The Tribunal, after observing that the CIT(Appeals) had summarily vacated the addition for the reason that the A.O had failed to carry out a proper inquiry, set aside his order and restored the matter to the file of the A.O with a 21 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 direction to decide the issue afresh after affording reasonable opportunity of being heard to the assessee.
20. During the course of set-aside proceedings, the A.O, after referring to the aforesaid letter dated 12.02.2017 of the Chief Manager, State Bank of India, Branch:
Civic Centre, Bhilai, wherein approval was sought from the regional office of the bank for issuance of drafts at concessional commission rate, observed that the regional office vide its letter dated 22.02.2007 addressed to the Chief Manager (supra) had conveyed its approval and thereafter, 33933 demand drafts amounting to Rs.7,78,99,000/- were made by the bank. It was further observed that 1792 vouchers filled in the name of various persons in the handwriting of a set of few persons were submitted to the bank along with cash for preparation of 33933 demand drafts. Also, the A.O had observed that in the course of the set-aside proceedings, Shri T.S. Grover, the then Chief Manager, State Bank of India, Branch: Civic Centre, Bhilai had confirmed the aforesaid factual position in his statement recorded by the Investigation Wing of the Income-tax Department on 25.04.2007. As the assessee had denied before the A.O. of having made any request for making the drafts at a concessional commission rate, therefore, the A.O. vide notice u/s. 133(6) of the Act had called upon the bank to confirm whether the assessee had made any written request or had orally requested for the issuance of drafts at a lower exchange rate in favor of the various individuals. In reply, the bank vide its letter dated 18.03.2016 had stated that as the records relating to the matter which pertained to the year 22 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 2007 had been destroyed, therefore, it could not be verified as to whether any written request for issuance of drafts for winning licenses for selling liquor in the name of various individuals at a concessional rate was obtained from Shri Trilok Singh Dhillon.
Also, it was stated by the bank that as a large number of customers in the process of allotment of licenses for selling liquor used to requisition for demand drafts in favor of the Excise Department, therefore, the bank considering the said business opportunity in the normal course used to generally offer concession in the draft exchange/fees to all such customers to lure/retain the draft business. Also, the bank had stated that the letter advising approval of the concessional draft exchange rate did not specify the name of Shri Trilok Singh Dhillon, and the concession appeared to have been granted for all individuals purchasing drafts for participating in allotment of "Desi Sharab Theka". The bank had further stated in its letter that even though the request for concession in demand draft exchange/fees was initiated by Shri Trilok Singh Dhillon, it may, however, not be necessary that the entire number of "demand drafts" made in favor of the Excise department in the process of allotment of licenses for selling country liquor pertained to Shri Trilok Singh Dhillon and his associates.
21. As is discernible from the assessment order, the A.O., not being convinced by the reply received from the bank had called upon it to furnish the list of persons to whom concessional demand draft exchange rate/fees was granted during the subject year, along with the amount of the respective "demand drafts" purchased by them. 23
Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 However, the bank failed to provide the aforesaid details for the reason that due to the closure of the financial year they were busy and could not retrieve the old information.
22. The A.O, observing that the assessee in the course of the set-aside proceedings had failed to place on record any supporting material that would substantiate his claim that the addition towards unexplained investment of Rs.7.79 crore (approx.) towards purchase of the "demand drafts" drawn by State Bank of India, Branch: Civic Centre, Bhilai was not called for in his case, thus, relied upon the view taken by his predecessor and once again made an addition of Rs.7.79 crore (supra) towards undisclosed investment made by him for purchase of demand drafts.
23. As observed by us hereinabove, the CIT(Appeals) had, thereafter, approved the addition of undisclosed investment in bank drafts of Rs.7.79 crore (supra) made by the A.O. The CIT(Appeals) while approving the view taken by the A.O had relied on the letter of the Chief Manager, State Bank of India, Branch: Civic Centre, Bhilai, dated 12.02.2007, wherein he had sought approval of the regional office of the bank for issuance of demand drafts at concessional commission rates as was requested by Shri Trilok Singh Dhillon. The CIT(Appeals) while making the aforesaid addition observed that the assessee during the course of the set-aside proceedings had failed to bring on record any cogent material which would evidence that the demand drafts in question did not pertain to him and his associates.
24
Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018
24. We have thoughtfully considered the issue in hand in the backdrop of the observations of the lower authorities. Ostensibly, the Tribunal vide its order dated 17.12.2014 did not find favor with the order of the CIT(Appeals), and had vacated his order and restored the matter for fresh adjudication to the file of the A.O. The Tribunal in its order observed that the CIT(Appeals) had vacated the addition of Rs. 7.79 crore (supra) primarily for three reasons, viz. (i). that in absence of any supporting material which would prove that the assessee had provided the funds for investing in the "demand drafts" the addition could not be sustained based on general observations; (ii). the A.O. had failed to make proper inquiry in the matter; and (iii). the concerned persons who were referred to as the associates of the assessee for the preparation of the drafts were never confronted to the assessee.
25. We are of the view that in the backdrop of the aforesaid observations of the Tribunal, now when the matter was restored for fresh adjudication, the A.O. ought to have done the bare minimum that was expected of him and plugged the lapses of his predecessor which had formed the very basis for quashing the addition of Rs. 7.79 crore (supra) in the first round of litigation by the CIT(Appeals). However, we find that the A.O. in the course of the set-aside proceedings had repeated the addition of Rs. 7.79 crore (supra) made by his predecessor for the reason that the assessee had failed to place on record any fresh evidence which would reveal that the addition made in the original assessment was arbitrary or made without examination of the facts. We are unable to comprehend the aforesaid observation of 25 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 the A.O. As it is a case where the A.O while framing the original assessment had made the addition by alleging that the "demand drafts" of Rs.7.79 crore (supra) in the name of various persons was the unexplained investment of the assessee, therefore, it was for him to have supported his allegation based on clinching material evidence. It would be relevant to point out that as brought to our notice by the Ld. A.R, the "Order sheet" entry of the A.O in the course of the original assessment proceedings, reveals that the assessee had on 14.12.2009 categorically denied of having made any written request to the bank regarding the bank drafts under consideration, Page 92 of APB. As it was the conviction of the A.O that what was apparent was not real, i.e the "demand drafts" stated to have been made by various persons were, in reality, the investment of the assessee from his unexplained sources, therefore, the onus was cast upon him to prove his allegation based on supporting evidence and not for the assessee to prove to the contrary. One cannot be expected to prove the negative, i.e prove the non-existence of a fact. Also, we would mince no words in observing that though the A.O in the course of the set- aside proceedings had called for certain details from the Chief Manager, State Bank of India, Branch: Civic Centre, Bhilai, which though were partly made available by the Bank, but thereafter, he had sat tight on the said information, and had neither acted upon the material available with him nor carried out any independent enquiry. In fact the A.O had hushed through the matter with a pre-determined approach to endorse the view taken by his predecessor. If the view of the predecessor was only 26 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 to be approved in the course of set-aside proceedings, then we are unable to fathom that as to what was the purpose of restoring the matter to his file for fresh adjudication by the Tribunal.
26. Admittedly, it is a matter of fact borne from record that the Chief Manager, State Bank of India, Branch: Civic Centre, Bhilai had in the course of the set-aside proceedings not provided the complete details as were called for by the A.O. The A.O was conveyed by the bank that as it was an old case, therefore, the records had been destroyed and were not available. At the same time, we find that the copy of the record of Investigation Wing as filed before us by the Ld. DR, reveals that the complete details of the individuals who had applied for the "demand drafts" for participating in the allotment of the licenses for country liquor vends alongwith their mobile numbers are very much available on record. The list of 1792 persons who as per the bank record had made "demand drafts" of Rs. 7,78,99,000/- with State Bank of India, Branch: Civic Centre, Bhilai is culled out as under: 27
Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 28 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 29 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 30 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 31 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 32 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 33 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 34 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 35 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 36 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 37 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 38 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 39 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 40 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 41 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 42 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 43 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 44 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 45 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 46 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 47 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 48 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 49 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 50 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 51 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 52 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 53 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 54 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 55 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 56 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 57 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 58 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 59 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 60 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 61 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018
27. Also, the Ld. D.R has filed before us a copy of the Order u/s 131(3) of the Act, dated 14.11.2007 of the Deputy Director of Income-Tax (Inv.), Raipur. The Dy. DIT (Inv.), Raipur in his order dated 14.11.2007 had stated to have impounded the application forms that were filed with the bank for preparation of "demand drafts" in favour of the Excise Department as were produced before him by the Branch Manager, State Bank of India, Branch: Civic Centre, Bhilai. Copy of the order of the Dy. DIT(Inv.), Raipur u/s 131(3) of the Act, dated 14.11.2007 is culled out as under: 62
Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 63 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 We are of the view that now when the details of the 1792 applicants who had purchased the "demand drafts" from State Bank of India, Branch: Indira Palace, Bhilai were available on record, the A.O ought to have carried out necessary verifications from the said persons in order to arrive at the true state of affairs. Also, considering the fact that the 1792 application forms for preparation of demand drafts of Rs. 7.79 crore (supra) were lying impounded with the Dy. DIT(Inv)-II, Raipur vide his order dated 14.11.2007, the A.O, thus, should have pressed into service the same for carrying out further verifications. Also, the A.O should have looked into the aforesaid application forms for taking his observation that the 33933 demand drafts of Rs.7.79 crore (supra) prepared based on 1792 vouchers in the name of various persons were in the hand writing of a set of few persons to a logical end.
28. We, thus, in terms of our aforesaid deliberations are of the view that as the A.O in the course of the set-aside proceedings had failed to carry out the bare minimum verifications which he ought to have done, therefore, we are unable to approve the endorsement by him of the earlier view of his predecessor, as the same in no way serves the very purpose for which the matter was restored to his file by the Tribunal.
29. Although we are not oblivion of the fact that it is the second round of litigation of the case before us and the litigation should not be allowed to be prolonged, but at the same time, we are of the considered view that considering the quantum of the addition involved in the case, neither a person who is not liable to be assessed be 64 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 wrongly assessed and saddled with tax; nor a person who is liable to be assessed be allowed to evade taxes that are legally due from him. We, thus, in terms of our aforesaid observations, restore the matter to the file of the A.O with a specific direction to carry out necessary verifications and conclude the assessment in so far the aforesaid issue is concerned afresh in the backdrop of our aforesaid deliberations.
30. Before parting, we may herein observe that the assessee in the course of the proceedings before us has filed a letter dated 27.09.2023 a/w. an affidavit under Rule 10 of the Income Tax (Appellate Tribunal) Rules, 1963, wherein it is stated by him that no material based on which the aforesaid addition had been made in his case till date have been made available to him by the department. As the A.O in course of the set aside proceedings had on 18.03.2016 made available a copy of the letter of the Chief Manager, SBI, Branch : Civic Centre, Bhilai to the assessee dated 12.02.2007 (as is discernible from the order sheet) which is the very foundation of the aforesaid addition made by the A.O, therefore, we are unable to concur with the assessee that no material, based on which, the addition of Rs.7.79 crore (supra) had been made in his case was provided to him. At the same time, the A.O is directed to verify as to whether or not the assessee had at any stage during the set aside proceedings requested for a copy of the statement of Shri T.S. Grover, Ex-Chief Manager, SBI, Branch: Civic Centre, Bhilai dated 25.04.2017 that was recorded by the Dy. DIT (Inv.-II), Raipur and also, in case the statement of the aforesaid person viz, Shri T.S. Grover (supra) had not been made available to the assessee then, in 65 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 all fairness provide a copy to him and also facilitate the cross-examination of the aforementioned persons, if available. Also, as a word of caution, the A.O is directed to make available the statements of all the third parties that would be recorded by him in the course of the set-aside proceedings while giving effect to the present order and also allow their cross examination if so requested by the assessee. Thus, the Ground of appeal No.2 and Additional Grounds of appeal Nos. 4, 5 & 6 raised by the assessee are allowed for statistical purposes in terms of our aforesaid observations.
31. We shall now deal with the grievance of the assessee that the CIT(Appeals) had erred in confirming the disallowance of Rs.10,28,653/- made by the A.O u/s. 40A(3) of the Act regarding the payments made to dealers authorized by the State Government of Punjab for sale of liquor on wholesale basis.
32. Succinctly stated, the A.O while framing the original assessment observed that the assessee had flouted the provisions of Section 40A(3) of the Act while making the payments towards purchase of liquor from wholesalers/distilleries in the State of Punjab. The A.O observed that the violation of Section 40A(3) of the Act were of two types, viz. (i) that where the payments made by the assessee were admittedly in excess of the threshold limit of Rs.20,000/- contemplated in Section 40A(3) of the Act; and (ii) that where the payments were made in excess of the threshold limit of Rs.20,000/- contemplated in Section 40A(3) of the Act, but the assessee had deliberately split the same and based on vouchers camouflaged them as respective 66 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 payments of amounts below the aforesaid threshold limit made to a single party on the same day.
33. On a perusal of the original assessment framed u/s. 143(3) dated 31.12.2009, we find that the complete details of the payments of Rs.51,43,266.15 stated to have been made in violation of Section 40A(3) of the Act, are as under: 67
Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 68 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 69 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 70 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 Out of the aforesaid payments, it was observed by the A.O that cash payments made by the assessee towards purchase of liquor to distilleries/wholesalers of country liquor amounting to Rs.11,59,863/- were admittedly made in excess of the threshold limit of Rs.20,000/- contemplated in Section 40A(3) of the Act. As regards the balance payments of Rs.39,83,430.15 [Rs.51,43,266.15 (-) Rs.11,59,863/-], the A.O observed that the same were though made by the assessee in excess of the threshold limit of Rs.20,000/-, but as per vouchers were split by him into payments which were shown to have been made in tranches, on the same day, in order to project as if the respective payments on every occasion was below the threshold limit of Rs.20,000/-
as prescribed u/s. 40A(3) of the Act. The A.O observed that a careful perusal of the vouchers pertaining to multiple payments made by the assessee to a single party on the same day, revealed that while for the said vouchers would be of a denomination of Rs.20,000/- but the last one carrying the balancing figure of the total payment made during the day would make a reference of the total amount of payment on its back side.
34. The A.O based on his aforesaid deliberations, concluded that the payment of the entire amount of purchase consideration of Rs.51,43,266.15 (supra) was made by the assessee in violation of Section 40A(3) of the Act. Accordingly, the A.O disallowed 20% of the aforesaid amount and made an addition/disallowance of Rs.10,28,653/- in the hands of the assessee.
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35. As is discernible from the record, the Tribunal vide its order dated 17.12.2014 had restored the aforesaid issue of disallowance made by the A.O u/s. 40A(3) of the Act of Rs.10,28,653/- for the reason that the order passed by the CIT(Appeals) vacating the said disallowance was devoid and bereft of any plausible reasoning. Also, the Tribunal while restoring the matter to the file of the A.O had directed him to decide the issue afresh in accordance with law after affording a reasonable opportunity of being heard to the assessee.
36. During the course of set-aside proceedings, the A.O finding no infirmity in the view taken by his predecessor had once again worked out the disallowance u/s. 40A(3) of the Act at Rs.10,28,653/-. On appeal, the CIT(Appeals) finding no infirmity in the view taken by the A.O as regards the addition made u/s. 40A(3) of the Act, upheld the same.
37. Shri S.R. Rao, Ld. AR for the assessee has assailed the disallowance u/s. 40A(3) of the Act on two counts, viz. (i) that as the genuineness of the respective payments made by the assessee towards purchase of liquor to wholesalers/distilleries had not been doubted by the A.O, therefore, there was no justification for him to disallow any part of the said payment u/s. 40A(3) of the Act; and (ii) that the respective payments made by the assessee towards purchase of liquor to wholesalers/distilleries of an amount below the threshold limit of Rs.20,000/-, though the aggregate of the said payments on the same day exceeded the threshold limit, did not entail any disallowance u/s. 40A(3) of the Act.
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38. As it is the claim of the Ld. AR that now when genuineness of the payments in question had not doubted by the department, then the same could not have been disallowed u/s. 40A(3) of the Act, therefore,we shall first deal with the same.
39. We may herein observe that Section 40A(3) of the Act as was applicable during the subject year, read as under:
"40A. (1) The provisions of this section shall have effect notwithstanding anything to the contrary contained in any other provision of this Act relating to the computation of income under the head "profits and gains of business or profession."
XXXXXXXXXXXXXXXXX (3)(a) Where the assessee incurs any expenditure in respect of which payment is made in a sum exceeding twenty thousand rupees otherwise than by an account payee cheque drawn on a bank or account payee bank draft, no deduction shall be allowed in respect of such expenditure;
(b) Where an allowance has been made in the assessment for any year in respect of any liability incurred by the assessee for any expenditure and subsequently during any previous year (hereinafter referred to as subsequent year) the assessee makes payment in respect thereof, otherwise than by an account payee cheque drawn on a bank or account payee bank draft, the payment so made shall be deemed to be the profits and gains of business or profession and accordingly chargeable to income-tax as income of the subsequent year if the amount of payment exceeds twenty thousand rupees:
Provided that no disallowance shall be made and no payment shall be deemed to be the profits and gains of business or profession under this sub-section where any payment in a sum exceeding twenty thousand rupees is made otherwise than by an account payee cheque drawn on a bank or account payee bank draft, in such cases and under such circumstances as may be prescribed, having regard to the nature and extent of b facilities available, considerations of business expediency and other relevant actors."73
Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 On a perusal of the aforesaid statutory provision, it transpires that the same contemplates incurring of any expenditure in excess of the threshold limit of Rs.20,000/- through specified mode, i.e. an account payee cheque drawn on a bank or account payee bank draft. It is clearly provided that in case of incurring of any expenditure in a manner other than that prescribed, the same shall not be allowed as a deduction. Nothing is discernible therefrom, as per which, it can be inferred that a genuine expenditure would not fall within the sweep of the aforesaid statutory provision. In fact, the set of conditions wherein application of the rigors of the aforesaid statutory provision has been relaxed is found in the exceptions carved out in Rule 6DD of the Income Tax Rules, 1962. We, thus, in terms of our aforesaid observations are of the view that the Ld. AR's claim that as the genuineness of the payments made by the assessee to wholesalers/distilleries towards purchases of liquor by the assessee had not been doubted by the department, therefore, the provisions of Section 40A(3) could not be triggered, does not merit acceptance.
40. We shall now deal with the judgments/orders as had been pressed into service by the Ld.AR in his attempt to support his contention that no disallowance u/s. 40A(3) of the Act is called for if the expenditure in question is found to be genuine. (A) ACIT, Circle-1(2), Raipur Vs. M/s. R.P Real Estate Pvt. Ltd., Tax Case (Income Tax Appeal) No.13 of 2016 dated 01.03.2016
41. The Ld. AR had relied on the judgment of the Hon'ble High Court of Chhattisgarh in the case of ACIT, Circle-1(2), Raipur Vs. M/s. R.P Real Estate Pvt. 74
Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 Ltd., Tax Case (Income Tax Appeal) No.13 of 2016 dated 01.03.2016. On a perusal of the aforesaid order of the Hon'ble High Court, we find that in the said case, the assessee who was engaged in the business of real state trading and construction of multistoried buildings, had made payment of Rs.61,06,000/- in cash to four different persons towards purchase price of land. The aforesaid payment made by the assessee was disallowed by the A.O. u/s. 40A(3) of the Act.
42. On appeal, the Tribunal observed that as the cash payments made by the assessee were covered by the exception carved out in Rule 6DD(g), therefore, the same could not have been disallowed u/s. 40A(3) of the Act. On further appeal, the Hon'ble High Court approved the view taken by the Tribunal and dismissed the appeal filed by the revenue on the ground that no substantial question of law was involved for determination u/s. 260A of the Act. Although in the aforesaid case, the Tribunal had taken cognizance of the fact that the cash payments made by the assessee towards purchase of land in the course of its business was made to the identified land owners from whom the lands were purchased vide registered purchase deeds, and the genuineness of the payments made to them were confirmed by the registered deeds, but it had vacated the disallowance u/s. 40A(3) of the Act for the reason that the facts of the case were saved by the exception carved out in Rule 6DD(g) of the Income Tax Rules, 1962. For the sake of clarity, the observations of the Hon'ble High Court are culled out as under:
75
Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 "3. The Commissioner Income Tax (Appeals) after hearing the assessee and the departmental representative concluded that payments were made in cash to actual identified recipient land owners from whom purchase was made by duly registered purchase deed with tlairo4dentity of each seller established beyond doubt and the genuineness of the payments also confirmed by the registered deeds. The Appellate Authority dwelt into the introduction of Section 40A(3) of the Act by circular dated 6.7.1968 in the Finance Act, 1968 with effect from 1.4.1969 holding that the purpose of inserting the provision in the Act was not to penalize a bonafide assessee for making cash payment above the prescribed limit.The purpose was preventive to check evasion of tax and flow of unaccounted money or to check transactions which were not genuine and which may be a camouflage to evade tax by showing fictitious and false transactions. In support of his conclusions the Appellate Authority relied upon in 1999 240 ITR 902 Gauhati [Watford Transport (Eastern India) v. CIT]. The payment could be allowed towards expenditure if circumstances so warranted keeping in mind considerations of business expediency and other relevant factors as may be permissible under the rules. The Appellate Authority therefore arrived at the conclusion that in the facts of the case the Assessing Officer had acted mechanically without due and proper application of mind to statutory provisions.
4. In appeal before the Tribunal, the departmental representative in It a rhetorical manner simply relied upon the order of the Assessing Officer without any ground to assail the order of the Commissioner of Income Tax (Appeals). The Tribunal again noticed that full payment had been made to the seller under the registered deeds was not disputed by the Assessing Officer and neither was the identity or genuineness of the sellers in dispute or the contention of the assessee that the sellers being villagers had no bank accounts and therefore insisted on cash payment. The Tribunal held that payment in cash was out of business compulsion and not optional. The Tribunal held that the facts of the case were in pari materia with Saraswati Housing and Developers V. Additional Commissioner of Income Tax (2013) 142 ITD 0198, Delhi Bench (G). Reference may also be made to Rule 6DD(g) & (j) permitting cash payments for reasons specified and which reads as follows:
" 6DD. No disallowance under sub-section (3) of section 40A shall be made and no payment shall be deemed to be the profits and s of business or profession under sub-section (3A) of section 40A where a payment or aggregate of payments made to a person in a day, otherwise than by an account payee cheque drawn on a bank or account payee bank draft, exceeds twenty thousand rupees in the cases and circumstances specified hereunder, namely :-
XXX XXX XXX 76 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018
(g) Where the payment is made in a village or town, which on the date of such payment is not served by any bank, to any person who ordinarily resides, or is carrying on any business. profession or vocation, in any such village or town;
XXX XXX XXX
(j) where the payment was required to be made on a day on which the banks were closer either on account of holiday or strike."
5. The Tribunal has interpreted the aforesaid to hold that cash payments above twenty thousand rupees could be accepted if the conditions prescribed in the rules were fulfilled to the satisfaction of the authority concerned. The reasoning of the Tribunal and the interpretation by it of Section 40A(3) and Rule 6DE)(g) supported by judicial precedents have not been assailed in this appeal and no submission has been made before us with regard to the same. We are satisfied that the appeal ought not to have filed and raises no substantial question of law for determination under Section 260A of the Act.
6. Before parting we consider it appropriate to quote the following extract from the CBDT Circular dated 10.12.2015:
"it is clarified that an appeal should not be filed merely because the tax effect in a case exceeds the monetary limits prescribed above. Filing of appeal in such cases is to be decided on merits of the case."
7. There is no merit in the appeal. The appeal is dismissed."
43. As the facts involved in the case before the Hon'ble High Court in no way supports the claim of the Ld. AR that the provisions of Section 40A(3) cannot be triggered in case of payments where the genuineness of the expenditure had not been doubted by the department, therefore, we are of the view that the same would not carry the case of the assessee any further. In fact, we would mince no words in observing that the aforesaid judgment supports our view. We, say so, for the reason that in the case before the Hon'ble High Court the disallowance made by the A.O u/s. 40A(3) of the Act was vacated by the Tribunal not on the ground that the payments 77 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 made towards purchase of land was found to be genuine but for the reason that the payments so made were covered by the exception carved out in Rule 6DD(g) of the Income Tax Rules, 1962.
(B) Ramnagar Pachwani & C.S.(S) Shop Vs. ITO, Ward-2(3), Asansol, ITA No.148/Kol/2015, ITA No.185/Kol/2014 & ITA No.186/Kol/2014 dated 05.08.2016.
44. On a perusal of the aforesaid order of the Tribunal, we find that though in the said case, the payments were made by the assessee, a retail trader of country liquor, to the wholesale licencees by depositing cost price, excise duty, bottling charges etc. in cash in the bank account of its supplier, but the said mode/manner of payment was in compliance to the notification dated 29.08.2005 of the Government of West Bengal, Excise Department, which required the retail vendors of country liquor to deposit the aforesaid payments in the bank account of the wholesale licensees who were held to be the collecting agent of the government. In other words, the wholesale licensees were held to be the collecting agents of the government and any payment to them was to be treated as a payment to the government. Accordingly, the Tribunal based on the aforesaid facts, had observed that as the payments made by the assessee to the wholesale licensees was to be construed as payments to the government, therefore, the same was saved by the exception contemplated in Rule 6DD(b) of the Income Tax Rules, 1962.
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45. Ostensibly, the facts involved in the case before us are distinguishable for the reason that it is not the case of the assessee before us that it had made cash payments to the wholesale licensees/distilleries, pursuant to any notification/order of State Government of Punjab. Accordingly, in terms of our aforesaid observations, we are unable to persuade ourselves to subscribe to the contention of the Ld. AR that as the genuineness of the payments made by the assessee to the wholesalers/distilleries for purchase of liquor had not been doubted by the department, therefore, no disallowance on the said count itself could have been made u/s. 40A(3) of the Act.
46. We shall now deal with the contention of the Ld. AR that to the extent, the respective payments made by the assessee towards purchase consideration were below the threshold limit of Rs.20,000/- but the aggregate of the said payments made in tranches to the same party on a single day exceeded the said prescribed limit, the assessee could not be held to have violated the provisions of Section 40A(3) of the Act.
47. Before proceeding any further, it would be relevant to point out that as per Section 40A(3) of the Act that was applicable during the year under consideration, as culled out by us hereinabove, i.e. prior to its amendment vide the Finance Act, 2008 w.e.f. 01.04.2009, the assessee remained under a statutory obligation not to make any payment in respect of expenditure of any sum exceeding Rs.20,000/- otherwise than vide the prescribed modes. After amendment to Section 40A(3) of 79 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 the Act vide the Finance Act, 2008 w.e.f. 01.04.2009, the scope of the restriction of the assessee was broadened and he was restrained from making payment in excess of the threshold limit of Rs.20,000/- or in aggregate to a person in a day, otherwise than by the prescribed mode. Accordingly, during the year under consideration, which was regulated as per the mandate of the pre-amended Section 40A(3) of the Act, there was no bar on the assessee in making respective payments to a single party on multiple occasions in a day below the prescribed limit, though the aggregate of the said payments so made on the same day exceeded the prescribed amount of Rs.20,000/-.
48. Our aforesaid view can safely be gathered by referring to the Circular No.1/2009 dated 27.03.2009 wherein the purpose for making available the aforesaid amendment to sub section (3) of Section 40A had been explained, as under:
"13. Amendment to the provisions of sub-section (3) of section 40A of the Income-tax Act 13.1 Clause (a ) of sub-section (3) of section 40A of the Income-tax Act, 1961 provides that any expenditure incurred in respect of which payment is made in a sum exceeding Rs. 20,000 otherwise than by an account payee cheque drawn on a bank or by an account payee bank draft, shall not be allowed as a deduction. Clause (b) of sub-section (3) of section 40A also provides for deeming a payment as profits and gains of business or profession if the expenditure is incurred in a particular year but the payment is made in any subsequent year in a sum exceeding Rs. 20,000 otherwise than by an account payee cheque or by an account payee bank draft. However, the provisions of this section are subject to exceptions as provided in Rule 6DD of the Income- tax Rules, 1962.
13.2 Sub-section (3) of section 40A is an anti-tax-evasion measure. By requiring payments to be made by an account payee instrument, it is possible to verify the genuineness of the transaction. Thereby the risk of evasion is substantially mitigated. Field formations have reported that assessees 80 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 tend to circumvent the provisions of sub-section (3) of section 40A by splitting a particular high value payment to one person into several cash payments, each below Rs. 20,000. This splitting is also resorted to for payments made in the course of a single day. The courts have approved such splitting by interpreting the words in a sum used in the section to mean a single sum thereby applying the limit to each transaction. This interpretation is against the legislative intent and has, consequently, adversely affected the efficacy of this anti-abuse provision.
13.3 Therefore, the provisions of sub-section (3) of section 40A have been amended providing that the provisions of sub-section (3) of section 40A shall also be attracted where the aggregate of payments made to a single party otherwise than by an account payee cheque, drawn on a bank or account payee bank draft exceeds twenty thousand rupees in a day."
(emphasis supplied by us)
49. Based on the aforesaid scope of Section 40A(3) of the Act, i.e. as was available under the pre-amended provision, we are principally in agreement with the Ld. AR that the A.O could not have triggered the provisions of Section 40A(3) of the Act as regards such respective payments, which though were below the threshold limit of Rs.20,000/-; but aggregate of such payments made during the same day to a single party exceeded the said prescribed limit.
50. Adverting to the facts of the case before us, we find that the A.O had observed that the assessee in order to escape the rigors of Section 40A(3) of the Act had split the payments, which in fact, were made by him to the wholesalers/distilleries in excess of prescribed limit of Rs.20,000/-. Only basis for supporting the aforesaid assumption of the A.O can be traced in his observation that while for certain vouchers of payments made on the same day to a single party were of Rs.20,000/- each but 81 Trilok Singh Dhillon Vs. DCIT-1(1), Bhilai ITA No. 114/RPR/2018 the last voucher of the balancing amount of payment on its backside would make a reference of the aggregate amount of payment made to the said party during the day. We are unable to concur with the aforesaid view taken by the A.O as the same is merely based on a presumption, assumption and suspicion. As nothing has been proved to the hilt that the assessee had made payments to the aforesaid parties in lumpsum in excess of the prescribed limit of Rs.20,000/-, therefore, to the said extent, we find no justification in bringing the payments of Rs.39,83,403.15 made by the assessee for purchase of liquor to wholesalers/distilleries as having been made in contravention of the mandate contemplated in Section 40A(3) of the Act. Accordingly, the disallowance in the case of the assessee is restricted by us to the extent of payments of Rs.11,59,863/- which comprises of the respective payments made towards purchase of liquor to the wholesaler/distilleries in excess of the threshold limit contemplated under Section 40A(3) of the Act. Resultantly, the disallowance u/s. 40A(3) of the Act is restricted to Rs.2,31,973, i.e. 20% of Rs.11.59,863/-. The order passed by the CIT(Appeals) is modified in terms of our aforesaid observations. Thus, Ground of appeal No.1 raised by the assessee is partly allowed in terms of our aforesaid observations.
51. Grounds of appeal Nos.3 & 4 being general in nature are dismissed as not pressed.
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52. In the result, the appeal of the assessee is partly allowed/allowed for statistical purposes in terms of our aforesaid observations.
Order pronounced in open court on 17th day of April, 2024 Sd/- Sd/-
ARUN KHODPIA RAVISH SOOD
(ACCOUNTANT MEMBER) (JUDICIAL MEMBER)
रायपुर/ RAIPUR ; दनांक / Dated : 17th April, 2024
*****#SB
आदे श क त ल प अ े षत / Copy of the Order forwarded to :
1. अपीलाथ / The Appellant.
2. यथ / The Respondent.
3. The CIT(Appeals)-II, Raipur (C.G.)
4. The Pr. CIT-II, Raipur (C.G)
5. वभागीय त न ध, आयकर अपील य अ धकरण, रायपुर बच,
रायपुर / DR, ITAT, Raipur Bench, Raipur.
6. गाड फ़ाइल / Guard File.
आदे शानस
ु ार / BY ORDER,
// True Copy //
नजी स चव / Private Secretary
आयकर अपील य अ धकरण, रायपुर / ITAT, Raipur.