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2016 (6) TMI 480 - AT - Income TaxValidity of the proceedings initiated under section 158BD - non incriminating material found at the time of search - AO has initiated and completed the assessment proceedings u/s 158BD / 144 of the Act on the basis of documents found at the time of search from the place of UIC group of companies where the search was conducted - Held that - We find lot of force in the argument made by Ld. AR before us with regard to the satisfaction recorded as per the provisions of section 158BD of the Act. AO of UIC group was to record the satisfaction before initiating the proceeding under section 115BD of the Act. But in the instant case the AO having the jurisdiction over the assessee has recorded the satisfaction which is incorrect as per law. Taking the consistent views in the decisions of Hon'ble Supreme Court in the case of Manish Maheshwari (2007 (2) TMI 148 - SUPREME COURT OF INDIA ) and the judgment of Hon ble Gujarat Hon'ble High Court in the case of Champakbhai Mohanbhai Patel (2014 (2) TMI 1168 - GUJARAT HIGH COURT ) we reverse the orders of Authorities Below - Decided in favour of asseessee
Issues Involved:
1. Validity of proceedings initiated under section 158BD of the Income Tax Act. 2. Addition of ?63,30,000/- under section 68 of the Income Tax Act. 3. Denial of cross-examination opportunity to the assessee. Issue-wise Detailed Analysis: 1. Validity of Proceedings Initiated under Section 158BD: The assessee challenged the validity of the proceedings initiated under section 158BD on the grounds that no incriminating material was found during the search at the UIC Group premises. The search and seizure operation conducted on 7th May 2002 at the UIC Group's corporate office led to the discovery of share scripts allotted in the name of various companies, including the assessee. Subsequent inquiries revealed that the share money was received from four individuals who deposited substantial cash in their bank accounts and then transferred the funds to the assessee and other companies. The AO initiated proceedings under section 158BD against the assessee after recording a satisfaction note, which indicated that the funds were channeled through fictitious bank accounts. The assessee argued that the proceedings were invalid as the satisfaction was not recorded by the AO of the UIC Group, where the search was conducted. The Tribunal found merit in this argument, relying on the judgments of the Hon’ble Gujarat High Court in CIT vs Champakbhai Mohanbhai Patel and the Hon’ble Supreme Court in Manish Maheshwari v. ACIT, which mandated that the AO of the searched person must record satisfaction before initiating proceedings under section 158BD. Since the satisfaction was recorded by the AO having jurisdiction over the assessee, the Tribunal held the proceedings to be invalid and allowed the assessee's appeal on this ground. 2. Addition of ?63,30,000/- under Section 68: The AO added ?63,30,000/- to the assessee's income under section 68, considering the receipt of this amount as unexplained. The assessee contended that the amount was received through account payee cheques against the sale of investments, duly recorded in the books of accounts, and disclosed in the income tax return. The AO based the addition on the statements of the four individuals who claimed that the cash deposited in their accounts was not their money but was received from other persons through Mr. Sandip Singhi. The assessee argued that the provisions of section 68 were not applicable as the amount was received through legitimate banking channels and disclosed in the tax return. Moreover, the statements of the four individuals were not made available for cross-examination, violating the principles of natural justice. The Tribunal, having allowed the appeal on the primary issue of the validity of proceedings under section 158BD, did not find it necessary to adjudicate this ground separately. 3. Denial of Cross-examination Opportunity: The assessee argued that the AO erred in not providing an opportunity to cross-examine the depositions of the four witnesses, which were relied upon for making the addition. The Tribunal noted that the statements of these individuals were crucial to the AO's findings, and the denial of cross-examination violated the principles of natural justice. However, since the Tribunal had already allowed the appeal on the ground of invalid proceedings under section 158BD, this issue did not require separate adjudication. Conclusion: The Tribunal allowed the assessee's appeal, holding that the proceedings initiated under section 158BD were invalid as the satisfaction was not recorded by the AO of the UIC Group. Consequently, the addition of ?63,30,000/- under section 68 and the denial of cross-examination opportunity did not require separate adjudication. The order of the lower authorities was reversed, and the appeal was allowed in favor of the assessee.
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