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TMI Blog2018 (9) TMI 1686X X X X Extracts X X X X X X X X Extracts X X X X ..... o exist and the same is taxable u/s 41(1)(a) of the Act. The assessment order under consideration is dated 24.02.2014 and that of JBPL was framed on 29.12.2016 which means that it was passed subsequent to assessment order of the appellant company. The Assessing Officer of JBPL, while framing the assessment order in its case, has taken a clue from the arbitration award. The above facts clearly show that there was a liability of 53 crores which was discharged by the appellant company and claimed it as expenditure which it is lawfully entitled for. Both the lower authorities have grossly erred in not appreciating the facts in true perspective while making disallowance. Considering the facts of the case in totality, in our considered opinion, the assessee is entitled for deduction of 53 crores. We accordingly direct the Assessing Officer to allow the same. - Decided in favour of assessee Addition on account of failure by the assessee to prove the identity, credit worthiness and genuineness of the unsecured loans and advances received - Held that:- The undisputed fact is that the loan liability amounting to 2.66 crores is coming from earlier years and therefore, provisions of section 68 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f expense of ₹ 53,00,00,000/- claimed as per Debit Note issued by M/s Jasmine Buildmart Private Limited made by AO only on the basis that the said debit note was not found at the premises of the appellant." 4. Vide an application filed on 23.08.2018, the assessee raised the following additional grounds of appeal: "4. On the facts and circumstances of the case, the Assessment Order passed under section 153B(1)(b)/143(3), considering the impugned year as year of search, is bad in law, as the impugned year is not search year rather falls under proceedings years by virtue of the proviso to section 153C of the Act. 5. It is well settled that an assessee can raise a legal additional ground or even fresh legal plea at any stage of the proceedings In support the appellant seeks to rely on the judgments of Apex Court in the case of CIT Vs Varas International reported in 284 ITR 80(SC) and NATIONAL THERMAL POWER CO LTD vs CIT reported in 229 ITR 383(SC) Special Bench decision in the case of DHL operators reported in 108 TTJ 152(SB). 6. It is further relevant to mention here that in assessment year 2010-11, which is also impugned before the ITAT and pending adjudication vide I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year under consideration is one of the six assessment years to be considered in the cases of search. The issue of notice u/s 153C of the Act becomes mandatory. The assessee has consistently submitted that no notice u/s 153C of the Act has been issued to the assessee. 8. However, having proceeded on the wrong premise that the year under consideration is the year of search, the Assessing Officer has framed the assessment u/s 153B(1)(b) r.w.s 143(3) of the Act whereas the assessment should have been framed u/s 153B(1)(a) r.w.s 143(3) of the Act. 9. When the Bench asked the ld. DR to furnish evidence in respect of issue of notice u/s 153C of the Act, the ld. DR pointed out that no such notice is available on record. 10. On identical set of facts, the two other assessees of Krrish Group, namely, Shri Ranjan Gupta [ITA No. 503/DEL/2015] & BNB Investment & Properties Ltd [ITA No. 504/DEL/2015[ were assessed and the matter travelled upto the co-ordinate bench and the same issues were agitated before the co-ordinate bench. In those appeals also, the following additional grounds were raised: "That under the facts and circumstances, in the absence of issuance and service of notice U/s. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of search. However, the First Proviso to Section 153C of the I.T. Act provides that the 06 assessment years for which assessments or re-assessments could be made under section 153C of the I.T. Act, would also have to be construed with reference to the date of handing-over of the assets or documents to the A.O. of the assessee. Therefore, the 06 assessment years under section 153C of I.T. Act in the case of assessee would be A.Y. 2008-2009 to 2013-2014. The A.O, therefore, shall have to pass the assessment order under section 153C of the I.T. Act. However, A.O. has not issued any notice under section 153C of the I.T. Act before initiating the proceedings against the assessee which is also admitted by the A.O. in reply to the assessee under RTI Act. The Amendment in Section 153C of the I.T. Act by the Finance Act, 2017, w.e.f. 01.04.2017 to the effect that block period for the person in respect of whom the search was conducted as well as the "other person" would be the same six assessment year immediately preceding the year of search is prospective in nature. The issue have been dealt in detail by the Hon'ble jurisdictional Delhi High Court in the case of Pr. CIT vs. Sarwar Agency P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained a license for development of group housing project on the said land with a permissible area of 8,50,000 Sq ft. from the Director, Town planning (DTCP). Thereafter, the assessee entered into MOU with JMD Ltd for development of group housing society, which was subsequently cancelled. The assessee again entered into development agreement with Brahma Homes Private Limited, which was also terminated. Finally, the appellant entered into development agreement with Jasmine Build Mart Private Limited (JBPL) for a consideration of ₹ 110.04 crores on 20.01.2011. A supplementary agreement dated 18.02.2011 was also entered into by virtue of which it was agreed upon by both the parties that certain expense relating to the project, such as, External Development Charges [EDC], Infrastructure Development Charges [IDC], conversion charges, bank guarantees, duty taxes, fee, cess, leveling of the project land will be borne by the owner, i.e. the appellant company. It was further agreed that after the amounts were incurred by JBPL, then the assessee will reimburse the same. It would be pertinent to mention here that both these documents were found during the course of search and seizure pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its books and subsequently, paid to JBPL through banking channel in the following manner: 17. Details of payments made to JMD by the assessee via banking channel in assessment year 2013-14: Date Amount Paid- Syndicate Bank (in Rs.) Page No. of Paper Book Asst Year 21.05.2012 50,00,000/- 129 2013-14 28.05.2012 50,00,000/- 130 2013-14 24.07.2012 2,00,00,000/- 131 2013-14 26.07.2012 2,00,00,000/- 131 2013-14 27.07.2012 1,00,00,000/- 131 2013-14 09.08.2012 2,00,00,000/- 132 2013-14 17.08.2012 2,00,00,000/- 132 2013-14 24.08.2012 75,00,000/- 132 2013-14 25.08.2012 75,00,000/- ' 132 2013-14 18.09.2012 1,20,00,000/- 133 2013-14 19.09.2012 50,00,000/- 133 2013-14 09.10.2012 1,00,00,000/- 134 2013-14 24.01.2013 3,00,00,000/- 138 2013-14 30.03.2013 1,01,09,666/- 138 2013-14 TOTAL 18,21,09,666/- 18. Details of payments made to JMD by the assessee via banking channel in assessment year 2013-14 Date Amount Paid- Syndicate Bank (in Rs.) Page No. of Paper Book Asst Year 08.04.2013 1,00,00,000/- 139 2014-15 09.04.2013 1,00,00,000/- 139 , 2014-15 10.04.2013 1,00,00,000/- 139 2014-15 11.04.2013 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has been reimbursed by the appellant company and hence the liability of JBPL seized to exist and the same is taxable u/s 41(1)(a) of the Act. The assessment order of JBPL is exhibited at pages 227 to 245 of the Paper Book Volume 2. 22. The assessment order under consideration is dated 24.02.2014 and that of JBPL was framed on 29.12.2016 which means that it was passed subsequent to assessment order of the appellant company. The Assessing Officer of JBPL, while framing the assessment order in its case, has taken a clue from the arbitration award as is evident from para 2.7 of the assessment order. 23. The above facts clearly show that there was a liability of ₹ 53 crores which was discharged by the appellant company and claimed it as expenditure which it is lawfully entitled for. Both the lower authorities have grossly erred in not appreciating the facts in true perspective while making disallowance. Considering the facts of the case in totality, in our considered opinion, the assessee is entitled for deduction of ₹ 53 crores. We accordingly direct the Assessing Officer to allow the same. 24. In the result, the appeal is allowed on merits of the case also. 25. Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and that confirmations i.r.o. Advance India Projects Ltd. (Rs.2 crs) and Swift Infracon Pvt Ltd.(Rs.20 lakhs) were on record (PR- 94 to 104). It was further argued that no initiation was called for as the amount of ₹ 2.66 crores could not be considered in the year under consideration having received prior to 1.4.2011, leaving the advance amount of ₹ 1 cr from Krrish Reality Ventures P Ltd. whose identity could not be also disregarded. The advances from Brahm Singh (Rs.26 lakhs) and from Om Prakash Godhra (Rs.20 lakhs) were stated to have been forfeited in AY 2013-14. On a perusal of the documents furnished in the PB pages 43 to 55, it is seen from the audited copy of account for the assessment year under consideration i.e. AY 2012- 13 containing the balance figures of the previous AY 2011-12, the loans from Advance India, Swift Infracon, Brahm Singh and Om Prakash have been apparently b/f into the relevant financial year. So even the contention about forfeiture of advances received from Brahm Singh and Om Prakash in AY 2013-14 though unsubstantiated is not really material in this present proceedings. In other words as the unsecured loans/advances to the extent of & ..... X X X X Extracts X X X X X X X X Extracts X X X X
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