2019 (2) TMI 708 - AT - Income Tax

Addition made on protective basis - proceedings arising from the substantive assessment - Held that - CIT(Appeals) did not await the outcome of the proceedings arising from the substantive assessment and since the said information was not forthcoming even after a considerable period from the concerned AO, he proceeded to dispose of the appeals arising from the protective assessments by his impugned orders and deleted the addition made on protective basis without awaiting the final outcome of the proceedings arising from the substantive assessment. Keeping in view the decision of CIT vs.- Surendra Gulab Chand Modi 1981 (3) TMI 21 - GUJARAT HIGH COURT , we hold that the CIT(Appeals) was not justified in deleting the additions made by the Assessing Officer on protective basis in all the three years under consideration without awaiting for the final outcome of the proceedings arising from this substantive assessment. We, therefore, set aside the impugned orders of the CIT(Appeals) on this issue and remit the matter back to him for keeping it alive and pending till the outcome of the proceedings arising from the substantive assessment. Additions made on account of commission income allegedly received by the assessee for giving accommodation entries - Held that - We find that this issue is consequential to the issue relating to the addition made on protective basis on account of accommodation entries allegedly given by the assessee-company to the Mumbai based companies. Since the said issue is remitted back by us to the ld. CIT(Appeals), we also remit the consequential issue relating to addition on account of commission income back to the CIT(Appeals) for deciding the same afresh. Grounds No. 1 & 2 of the Revenue s appeals for all the three years under consideration are accordingly treated as allowed for statistical purposes. Addition made on account of unexplained cash deposits found to be made in the Bank account of the assessee, which is involved in A.Y. 2005-06 and 2006-07 - Held that - We find that the impugned cash deposits were claimed to be made by the assessee out of cash balances available in the cash book on the respective dates as well as the sale proceeds of shares and in his remand report submitted to the ld. CIT(Appeals), this claim of the assessee was accepted by the Assessing Officer himself by stating that the cash deposits in the bank account were verifiable from the cash book which was produced before him and even the sale proceeds of shares reflected in the cash book were duly supported by sales invoices which were also produced before him. Keeping in view this remand report submitted by the AO accepting the claim of the assessee regarding the availability of cash for deposits made in the Bank account after verification, the ld. CIT(Appeals) deleted the addition made by the Assessing Officer on account of the alleged unexplained cash deposits found to be made in the Bank account of the assessee and we do not find any infirmity in the impugned orders of the CIT(Appeals) giving relief to the assessee on this issue for A.Y. 2005-06 and 2006-07. Even the D.R. has not raised any material contention in this regard. We accordingly uphold the impugned order of the CIT(Appeals) on this issue and dismiss Ground No. 3 of the Revenue s appeals for A.Y. 2005-06 and 2006-07.

Summary

Issues Involved:
1. Deletion of additions made on protective basis for alleged accommodation entries.
2. Deletion of additions made on account of commission income for providing accommodation entries.
3. Deletion of additions made on account of unexplained cash deposits in bank accounts.

Issue-wise Detailed Analysis:

1. Deletion of Additions Made on Protective Basis for Alleged Accommodation Entries:
The Revenue appealed against the deletion of additions made on a protective basis by the Assessing Officer (AO) for the alleged accommodation entries provided by the assessee-company to Mumbai-based companies. The AO had added substantial amounts on a protective basis, observing that the unexplained income in the form of cash given by the Mumbai-based companies was assessable on a substantive basis in the hands of those companies. The CIT(Appeals) deleted these additions, stating that the AO's reliance on the retracted statement of the Director was not corroborated by any independent material. The Tribunal noted that protective assessments are permissible in law and should await the outcome of substantive assessments. Citing the decision of the Hon'ble Gujarat High Court in CIT vs. Surendra Gulab Chand Modi, the Tribunal held that the CIT(Appeals) should have awaited the final outcome of the substantive assessments. Consequently, the Tribunal set aside the orders of the CIT(Appeals) on this issue and remitted the matter back to him to keep it pending until the outcome of the proceedings arising from the substantive assessments.

2. Deletion of Additions Made on Account of Commission Income for Providing Accommodation Entries:
The AO had added commission income allegedly received by the assessee for providing accommodation entries. The CIT(Appeals) deleted these additions, reasoning that the AO's assessment was based on a retracted admission by the Director, which lacked corroborative evidence. The Tribunal found that this issue was consequential to the protective assessment issue. Since the matter of protective assessment was remitted back to the CIT(Appeals), the Tribunal also remitted the issue of commission income back to the CIT(Appeals) for a fresh decision. Grounds No. 1 & 2 of the Revenue's appeals for all three years were thus allowed for statistical purposes.

3. Deletion of Additions Made on Account of Unexplained Cash Deposits in Bank Accounts:
For A.Y. 2005-06 and 2006-07, the AO had added amounts on account of unexplained cash deposits found in the assessee's bank accounts. The CIT(Appeals) deleted these additions, noting that the cash deposits were verifiable from the cash book and supported by sales invoices for shares. The AO, in his remand report, accepted the assessee's claim regarding the availability of cash for these deposits. The Tribunal upheld the CIT(Appeals)'s decision, finding no infirmity in the deletion of these additions. Ground No. 3 of the Revenue's appeals for these years was dismissed.

Conclusion:
The appeals of the Revenue for A.Y. 2005-06 and 2006-07 were treated as partly allowed for statistical purposes, while the appeal for A.Y. 2007-08 was treated as allowed for statistical purposes. The Tribunal remitted the issues of protective assessments and commission income back to the CIT(Appeals) for further consideration, and upheld the deletion of additions related to unexplained cash deposits.