2012 (9) TMI 484 - HC - Income Tax

Concealment of income - survey u/s 133A - assessee contested as error in exercise of jurisdiction by the Asstt. Commissioner of Income Tax, Circle-IV (1) Agra as the corporate office was shifted to Delhi - Held that - The petitioner did not file income tax return at Agra for the assessment year 2000-2001. Without any intimation or getting the jurisdiction transferred to Delhi the assessee had filed return at Delhi for the assessment year 2002-03. The Assistant Commissioner of Income Tax-IV (1) Agra proceeded in accordance with the law requiring the petitioner to furnish return/information. The petitioner participated in the proceedings. It was only at the end of the assessment period that the petitioner company intimated with AO at Agra that his office has shifted from Agra to Delhi and that he has filed income tax return with ACIT, Range-I, Delhi. Earlier no information was given of this suo-moto change of place of filing of return at Delhi. A survey was conducted u/S 133-A on 24.4.2001 in which a large number of incriminating documents were found depicting serious defects in the books of accounts. Shri Ravindra Kumar Agrawal-the Director of the company had created large number of fictitious concerns, which were not doing any business. In the circumstances the AO completed the assessment on protective basis - As the Director of the company appeared and filed reply to the notice and clearly stated before the AO that his company was assessed to tax with Company Circle-1 (2) at Agra. The petitioner thus acquiesced to the jurisdiction which the AO at Agra already possessed and allowed him to complete the assessment proceedings for the assessment year 2001-02 in the circumstances no error in exercise of jurisdiction by the Asstt. Commissioner of Income Tax, Circle-IV (1) Agra is found - against assessee.

Summary

Issues Involved:
1. Jurisdiction of the Assessing Officer (AO)
2. Validity of the assessment order
3. Compliance with procedural requirements
4. Allegations of concealment and furnishing inaccurate particulars
5. Protective vs. substantive assessment
6. Penalty proceedings

Detailed Analysis:

1. Jurisdiction of the Assessing Officer (AO):
The petitioner, a private limited company, contended that the assessment proceedings by the Asstt. Commissioner of Income Tax-4 (1), Agra were without jurisdiction as the company's registered office and principal place of business had shifted to Delhi. The petitioner argued that the income tax authority in Delhi alone had jurisdiction for making assessments post-2002-03. The court noted that the petitioner had participated in the proceedings at Agra and had not objected to the jurisdiction initially. The court emphasized that under Section 124 of the Income Tax Act, the jurisdictional question should have been referred to higher authorities if disputed. The court concluded that the petitioner acquiesced to the jurisdiction of the AO at Agra by participating in the proceedings and filing returns there until 2001-02.

2. Validity of the Assessment Order:
The petitioner challenged the assessment order dated 28.3.2005, where the income was assessed on a protective basis at Rs. 29,41,19,380/-. The substantive assessment was made in the hands of Shri Ravindra Kumar Agrawal. The petitioner argued that the assessment should have been made under Section 144 of the Act as the books of accounts were rejected. The court found that the AO had followed due process and made the assessment under Section 143(3) after considering all material evidence and conducting thorough enquiries.

3. Compliance with Procedural Requirements:
The petitioner argued that the transfer of the income tax return from Delhi to Agra was illegal as it did not comply with Section 127 of the Act and principles of natural justice. The court observed that the petitioner had not informed the AO at Agra about the change of the principal place of business to Delhi until the end of the assessment period. The AO at Agra proceeded with the assessment based on the information available and the participation of the petitioner in the proceedings.

4. Allegations of Concealment and Furnishing Inaccurate Particulars:
The AO found serious defects in the books of accounts and discovered that the petitioner was involved in providing accommodation entries through fictitious concerns. The petitioner was alleged to have concealed income and furnished inaccurate particulars. The court noted that the AO had conducted a detailed investigation, including summoning several persons and making enquiries from banks, stock exchanges, SEBI, and other clients. The evidence collected indicated that the petitioner was engaged in money laundering activities under the guise of a share broker.

5. Protective vs. Substantive Assessment:
The assessment was made on a protective basis in the hands of the petitioner company and on a substantive basis in the hands of Shri Ravindra Kumar Agrawal. The court upheld this approach, noting that the AO had provided a detailed explanation of the modus operandi of the petitioner and the involvement of Shri Ravindra Kumar Agrawal in creating fictitious concerns for providing accommodation entries.

6. Penalty Proceedings:
The petitioner also challenged the penalty notice dated 26.9.2005 for levying a penalty of Rs. 10,50,00,620/- under Section 271(1)(c) for the assessment year 2002-03. The court observed that the petitioner had not filed any appeal against the assessment order, indicating acceptance of the concealment. The penalty was imposed on a protective basis to safeguard the revenue's interest. The court found no merit in the petitioner's arguments against the penalty proceedings.

Conclusion:
The court dismissed the writ petition, upholding the jurisdiction of the AO at Agra and the validity of the assessment and penalty orders. The interim order was discharged. The court clarified that it had only decided on the jurisdictional issue and not on other substantive matters.