2014 (10) TMI 535 - HC - Income Tax

Transfer of jurisdiction from regular assessment u/s 143(3) to make block assessment u/s 158BC - Non-execution of warrants of authorization Seized cash not handed over by FEMA authorities Commission earned on the distribution of compensatory payments - Held that - The assessment u/s 158BC of the Act is a special provision and the conditions prescribed thereunder are required to be satisfied before any action for block assessment can be initiated - The assessee had not even paid the taxes due as per return filed for the block period and the AO had rightly dropped the proceedings under Chapter XIV-B of the Act - the assessment framed u/s 143(3) of the Act was in consonance with the provisions of the statute. The AO had doubted the paying capacity of Mr. Banerjee and no material had been produced to show that Mr. Banerjee had the capacity to pay the amount - The affidavit of Mr. Banerjee by itself would not be sufficient to conclude that he had the capacity to pay the amount in the absence of any supporting material to substantiate the availability of funds with him to give it to the assessee Tribunal rightly noted that no details have been placed on record as to what was the compromise between the two parties and how the deal was called off - There are variations in all the documents and in the name of the purchaser and no witness to the agreement. As regards the identity, credit worthiness and genuineness of the transaction, filing of the affidavit does not prove credit worthiness and genuineness of the transaction and it is a story which has been fabricated as a subterfuge to explain the seized cash of ₹ 16 lacs - CIT(A) rightly rejected the contention of the assessee and has rightly confirmed the action of AO thus, no substantial question of law arises for consideration Decided against assessee.

Summary

Issues:
1. Valid jurisdiction of ACIT Central Circle-I for regular assessment under section 143(3) after block assessment was dropped.
2. Correctness of Tribunal's confirmation of regular assessment under section 143(3) by ACIT Central Circle-I.
3. Validity of holding that warrant for requisition under section 132A remained unexecuted due to cash not handed over to AO.
4. Legality of confirming addition of Rs. 16 lacs without considering documentary evidence.
5. Justification of confirming estimated addition of Rs. 10 lacs for commission earned on distribution of compensatory payments.
6. Allegation of Tribunal's order being perverse and contrary to facts and evidence.

Analysis:
1. The appeal questioned the jurisdiction of ACIT Central Circle-I for regular assessment under section 143(3) after the block assessment was dropped. The Tribunal found that the warrant of authorization under section 132A was not executed as the cash seized was not handed over, leading to the dropping of proceedings under Chapter XIV-B. The Tribunal upheld the regular assessment under section 143(3) as the conditions for block assessment were not met, and no prejudice was shown to the assessee by the regular assessment.

2. The Tribunal confirmed the regular assessment under section 143(3) by ACIT Central Circle-I, rejecting the contention that the assessee should have been assessed under section 158BC. It was held that the assessment under section 143(3) was in line with the statute, and the higher tax rate on undisclosed income under section 113 justified the assessment under section 143(3).

3. The issue of the unexecuted warrant for requisition under section 132A was addressed by the Tribunal, emphasizing that the cash seized was not handed over to the Income Tax Department, leading to the dropping of proceedings under Chapter XIV-B. The Tribunal found no bar to frame regular assessment under section 143(3) and rejected the argument that the warrant was executed.

4. The Tribunal analyzed the addition of Rs. 16 lacs without considering documentary evidence, particularly the affidavit of Mr. Banerjee. It was found that the affidavit alone was not sufficient to prove the paying capacity of Mr. Banerjee, and no supporting material was presented to substantiate his capacity to pay the amount, leading to the rejection of this contention.

5. The Tribunal justified the estimated addition of Rs. 10 lacs for commission earned on distribution of compensatory payments, relying on statements and documents seized by FEMA authorities. The Tribunal rejected the argument that the authorization under section 132A was not executed, as the same documents were relied upon for the estimated addition.

6. The Tribunal dismissed the allegation of the order being perverse, citing reasons such as lack of details in the agreement, variations in documents, and absence of legal steps taken by parties involved. The Tribunal upheld the decision of the CIT(A) and found no substantial question of law arising for consideration, leading to the dismissal of the appeal.