2018 (12) TMI 1595 - HC - Income Tax

Addition made on protective assessment - criminal case is pending against assessee - Held that - A criminal case is pending, the Assessing Officer only made a protective assessment. The Tribunal, in the common impugned order, deleted it and directed the same to be assessed in the hands of the company namely M/s.Millennium Motors. In our considered view, since the CBI filed the final report before the Special Court, any finding, as given by the Assessing Officer though as a protective assessment, may render the criminal case a futile exercise. That apart, we found that the reasons given by the Tribunal are not sufficient to delete the protective assessment in the hands of the assessee with a direction to assess the same in the hands of the company namely M/s.Millennium Motors. As the assessee submits that there are sufficient records to show that the said Ms.Dhanalakshmi swindled substantial amount and the assessee is ready and willing to substantiate the same before the Tribunal, if one opportunity is granted considering the peculiar facts and circumstances of the case, we deem it appropriate to remand the matters to the Tribunal to consider the above referred to substantial questions of law. We make it clear that in so far as the issues, which have been remanded by the Tribunal to the Assessing Officer, against which, no appeals have been filed by either the Revenue or the assessee, we do not interfere with the same and the Assessing Officer is directed to carry out the directions issued by the Tribunal.

Issues Involved:
1. Whether the ITAT erred in ignoring the facts and documents submitted by the assessee.
2. Whether the ITAT was correct in confirming the CIT(A) orders without proper appreciation of evidence.
3. Whether the Tribunal was justified in holding that embezzlement by an employee cannot be assessed in the hands of the assessee.
4. Whether the Tribunal erred in not inferring that the source of the assessee's investments was the embezzled sum.
5. Whether the Tribunal was correct in deciding that additions can be made in the hands of a proprietary concern and not the assessee.
6. Whether the Tribunal was justified in accepting the assessee's contention regarding the sales abstract without supporting evidence.
7. Whether the Tribunal was right in holding that no addition could be made based on the sales abstract found during the search.

Detailed Analysis:

1. Ignoring Facts and Documents Submitted by the Assessee:
The assessee contended that the ITAT ignored the facts and documents submitted in defense before the CIT(A) and the Assessing Officer for the assessment years 2011-12, 2009-10, and 2010-11. The court noted that the Tribunal recorded the withdrawal of the assessee's counsel on the hearing date and proceeded with the merits of the case, which was procedurally correct. However, the court found that the assessee was not effectively represented due to the counsel's withdrawal and decided to remand the matter to the Tribunal for fresh consideration, ensuring the assessee gets an opportunity to present his case.

2. Confirming CIT(A) Orders Without Proper Appreciation of Evidence:
The assessee argued that the ITAT confirmed the CIT(A) orders without appreciating the materials and evidence available. The court observed that the Tribunal had to proceed with the case due to the counsel's withdrawal and the peremptory time limit set by a previous writ petition. The court decided to remand the matter to the Tribunal, allowing the assessee to substantiate his claims with proper representation.

3. Embezzlement by an Employee:
The Revenue appealed against the Tribunal's decision that embezzlement by an employee cannot be assessed in the hands of the assessee. The court noted that the assessee claimed an employee swindled the money and that a CBI investigation was underway. The Tribunal had deleted the protective assessment and directed it to be assessed in the hands of the company. The court found the Tribunal's reasons insufficient and decided that the protective assessment should be reconsidered by the Tribunal in light of the ongoing criminal case.

4. Source of Assessee's Investments:
The Revenue contended that the Tribunal failed to infer that the source of the assessee's investments was the embezzled sum. The court noted that the Tribunal had directed the assessment to be made in the hands of the company. Given the complexity and the ongoing criminal case, the court remanded the matter to the Tribunal for fresh consideration, allowing the assessee to present evidence regarding the source of investments.

5. Additions in the Hands of Proprietary Concern vs. Assessee:
For the assessment year 2014-15, the Revenue raised the issue of whether additions should be made in the hands of a proprietary concern or the assessee. The court noted that the Tribunal had directed the assessment to be made in the hands of the company. The court remanded the matter to the Tribunal to reconsider this issue, allowing the assessee to present his case.

6. Sales Abstract and Supporting Evidence:
The Revenue questioned the Tribunal's acceptance of the assessee's contention regarding the sales abstract without supporting evidence. The court observed that the Tribunal had not sufficiently addressed this issue and remanded the matter for fresh consideration, allowing the assessee to provide supporting evidence.

7. Addition Based on Sales Abstract Found During Search:
The Revenue argued that the Tribunal erred in holding that no addition could be made based on the sales abstract found during the search. The court noted that the Tribunal had not adequately considered this issue and remanded it for fresh consideration, allowing the assessee to present his arguments.

Conclusion:
The court allowed the tax case appeals, set aside the common impugned order passed by the Tribunal, and remanded the matters to the Tribunal for fresh consideration. The Tribunal was directed to afford the assessee an opportunity to present his case, and the assessee was instructed not to seek adjournments and to cooperate fully. The court left the substantial questions of law open for the Tribunal's decision and directed the Department to keep recovery proceedings in abeyance for two weeks, allowing the assessee to seek interim protection.

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