9911796707
TMI Blog2003 (8) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... isfaction, as envisaged by s. 158BD, was reached by the AO of Shri Alok Aggarwal searched under s. 132, against the appellant as the other person referred to in s. 158BD. 1.3 That the impugned block assessment was also barred by limitation, as no satisfaction was reached under s. 158BD by the AO of Shri Alok Aggarwal, being the person searched under s. 132, against the appellant as the other person referred to in s. 158BD in the course of framing the original block assessment against Shri Alok Aggarwal, or even during the completion of fresh assessment against the said Shri Alok Aggarwal assessment under s. 158BC/254 under directions of the Hon ble Tribunal after setting aside the original block assessment framed against him. 1.4 The impugned order is also vitiated and unsustainable in law, as it was passed in breach of the principles of natural justice and without allowing a prior hearing to the appellant before issuing notice under s. 158BC/BD and of explaining its case. 2.1 That without prejudice to the preceding grounds 1.1 to 1.4, the learned AO brought to tax the entire paid-up share capital of the appellant-company as its undisclosed income of the block period, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the documents seized, he was of the view that the shareholders of the assessee-company are Benami and have in fact signed blank receipts, blank sale bills, blank share transfer forms and also confirmatory affidavits which form part of the seized material in Annexs. A-38 and A-97 of Panchnama dt.24th April, 1996/25thApril, 1996. The fact that the blank signed share transfer forms and blank sale bills are kept with the assessee-company according to the AO confirmed the belief that the same were kept so as to have control over the Benami shareholders which would enable the assessee-company to get these shares transferred in its name or in the name of any other person at its will. The confirmatory affidavits filed before the AO were considered to be not sufficient as he was of the view that since the distinctive numbers have not been mentioned as such it showed that the shareholders are not even aware about their shares. The AO was of the view that the availability of these documents with the assessee clearly showed that the allottees were not the real shareholders and in fact merely name lenders and the total control of shares was considered to be in the hands of the company. 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction over such other person) shall proceed against such other person and the provision of block assessment shall apply accordingly. He was of the view that in case the AO of the person searched, i.e., Shri Alok Aggarwal, had handed over the seized documents/books of accounts pertaining to M/s Real Overseas (P) Ltd. i.e., the assessee to him accordingly, assessment in the case of M/s Real Overseas (P) Ltd. under s. 158BC/158BD was being made. The objection of the AO under s. 143(2) notice dt.16th Aug., 2001, was also considered and dismissed since the same was given to the assessee before finalisation of the assessment proceedings. As such, the addition of ₹ 47,26,800 was made. Aggrieved by this, the assessee is in appeal before us. 9. Various submissions were made by the learned Authorised Representative contending that the impugned order is without jurisdiction and, in fact, the action of the AO is beyond limitation since no satisfaction as envisaged by s. 158BD has been recorded by the AO of Shri Alok Aggarwal within the time prescribed under the chapter. The learned Departmental Representative was afforded an opportunity to verify from the records and state whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1996. Paper book p. 120 was also referred to in support of the contention that the return for 1990-91 was filed on31st Dec., 1990. Similarly, it was submitted that the returns for 1992-93, 1994-95, 1995-96 and 1996-97 have been filed by the assessee. In support of the above claim, our attention was invited to p. 101 which is the intimation under s. 143(1)(a) in the case of the assessee for 1994-95 which was issued on 28th Feb., 1995, i.e., much before the date of the search on Mr. Alok Aggarwal, the CA of the assessee. Page 102 was referred to in support of the said claim so as to highlight that for 1994-95 assessment year, the assessee had filed its return on18th Nov., 1994, as per the signature appearing on the acknowledgement which was received on30th Nov., 1994, as per the stamp on the said acknowledgement. Attention was invited to p. 110 which is the s. 143(3) assessment in the case of the assessee for 1992-93 assessment year which was completed on28th Oct., 1993, again before the date of the search. Page 111 is the s. 143(1)(a) intimation for the same assessment year bearing dt.26th Feb., 1993. Page 120 is the acknowledgement for the return filed for the asst. yr. 1990-91. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l shareholders had subscribed towards share capital which stood credited in the bank account of the assessee. 13. It was also pointed out that, in fact, vide letter dt.29th Aug., 2001, it was submitted that if the presence of any shareholder was required, he should be summoned under s. 131 of the IT Act. 14. The contention was also raised that the AO has, in fact, ignored enquiries made through his own Inspector. Our attention was invited to p. 56 of the paper book which is internal p. 2 of letter dt. 29th Aug., 2001, addressed to the Dy. CIT by the assessee to show that when the assessee was confronted by the Inspector s report, the assessee with respect to Surinder Garg/Seema Gupta/Suresh Chand/Ram Niwas: Address 508/36, Onkar Nagar, Trinagar, Delhi, gave the following reply: As per report of the Inspector who visited the above address for verification of the abovenamed four shareholders, a lady who was found at the above address confirmed that the abovenamed persons resided at that place, but have now shifted to some other place. She provided telephone number for making contacts with them (Phone No. 5434654). The lady confirmed to the Inspector that Shri Surinder Garg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fully covered vide order dt.21st July, 2003, in IT(SS)A No. 204/Del/2002 in the case of Makhni Tyagi (P) Ltd. It was specifically put to him that whether he would like to point out any distinguishing fact or circumstance. Learned Departmental Representative did not point out any distinguishing fact or circumstance and, in fact, conceded that the facts more or less are identical. As such, the issue is covered by the said order. It was fairly conceded that the additions in identical circumstances have been made (sic deleted) in the case of Makhni Tyagi (P) Ltd. but for the record, reliance was placed upon the impugned order. 20. Having heard the rival submissions and perused the material placed on our files, we are of the view that in the peculiar facts and circumstances, the identical issue has been considered by the Tribunal in the case of Makhni Tyagi (P) Ltd. wherein relying upon the jurisdictional decision of the High Court in the case of CIT vs. Ravi Kant Jain and Gujarat High Court in the case of N.R. Paper vs. CIT amongst others has deleted the additions. The Tribunal has also considered the decision of the Delhi High Court in the case of CIT vs. Steller Investment ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
