2012 (10) TMI 709 - AT - Income Tax

Addition on account of Hawala Payment Certain call were made to Dubai from the telephone of assessee - Timing of phone calls matches with the timing of the transaction of hawala payment as per police report Held that - As said amount of money is also not the established by any material or evidence except the police report. Since the police report is subject to the Court finding and judgment; therefore, until and unless the decision of the Court on the police report is available the said evidence brought on record by the Department is not sufficient to make the addition. Therefore issue remand back to AO to be decides on the basis of the decision of Court on the police report. Addition on account of difference in balance with party and assessee Held that - The assessee has clearly mentioned the reasons of difference being the cheque received and payment accounted twice; but none of the authorities below examined the said factual explanation and even overlooked the same. Issue remand back to AO

Summary

Issues Involved:
1. Addition of Rs. 23,36,000 as unaccounted income due to alleged Hawala payment to Dubai.
2. Addition of Rs. 3,50,000 due to the difference in book balance between the assessee and Mega Bollywood Pvt Ltd.
3. Validity of initiation of proceedings under section 158 BD based on information from external sources.

Detailed Analysis:

1. Addition of Rs. 23,36,000 as Unaccounted Income:
Facts and Circumstances:
A search and seizure action under section 132 was conducted at the premises of M/s Anand Motor Garage, resulting in the seizure of various books of accounts and loose papers. During the block assessment proceedings of M/s Anand Motor Garage, proceedings under section 158 BC read with section 158 BD were initiated against the assessee. The Assessing Officer received information from the Maharashtra police that the assessee had sent US$ 50,000 to Dubai through hawala, corroborated by telephonic conversations recorded by the police.

Assessing Officer's Findings:
The Assessing Officer found that phone calls were made from the assessee's office to Dubai, supporting the police report's claim of hawala transactions. Consequently, an addition of Rs. 23,36,000 was made to the assessee's undisclosed income.

Assessee's Contentions:
The assessee argued that the calls were made by business partners or representatives visiting their office and not by the assessee themselves. The assessee also contended that the police report did not conclusively identify them as a party to the hawala transaction.

Tribunal's Findings:
The Tribunal noted that while the phone calls established a connection, there was no direct evidence proving the actual payment of US$ 50,000 by the assessee. The police report alone, without corroborating evidence, could not be taken as conclusive proof. Therefore, the issue was remanded back to the Assessing Officer to reconsider in light of the court's decision on the police report.

2. Addition of Rs. 3,50,000 Due to Difference in Book Balance:
Facts and Circumstances:
During the search, loose papers were seized indicating transactions between the assessee and Mega Bollywood Pvt Ltd. The Assessing Officer noted a discrepancy of Rs. 3,50,000 between the seized documents and the assessee's books of accounts.

Assessing Officer's Findings:
The discrepancy was treated as unexplained investment and added to the assessee's undisclosed income.

Assessee's Contentions:
The assessee explained that the discrepancy was due to non-inclusion of certain cheque payments and receipts pending reconciliation, and a manual totaling error on the seized paper.

Tribunal's Findings:
The Tribunal found that the authorities below failed to properly consider the assessee's explanation. Therefore, the issue was remanded back to the Assessing Officer for reconsideration after examining the factual explanation provided by the assessee.

3. Validity of Initiation of Proceedings Under Section 158 BD:
Assessee's Additional Ground:
The assessee argued that the addition of Rs. 23,36,000 was based on external information and did not form part of the satisfaction recorded for initiating proceedings under section 158 BD.

Tribunal's Findings:
The Tribunal referred to the satisfaction note written by the Assessing Officer, which indicated that the seized material showed some undisclosed income belonging to the assessee. The Tribunal concluded that the initiation of proceedings under section 158 BD was valid, as the satisfaction note sufficiently established the presence of undisclosed income. The additional ground raised by the assessee was dismissed.

Conclusion:
The appeal was partly allowed for statistical purposes. The issues concerning the additions of Rs. 23,36,000 and Rs. 3,50,000 were remanded back to the Assessing Officer for reconsideration, while the validity of the initiation of proceedings under section 158 BD was upheld.