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TMI Blog2017 (1) TMI 1784X X X X Extracts X X X X X X X X Extracts X X X X ..... ings. Shri Anand Agrawal has also filed an affidavit owning the entire contents of the said suitcase as belonging to himself. Thus in this view also on the anvil of section 292C of the I.T. Act there is no basis for considering this sum as addition in the hands of the assessee. This assessment is framed pursuant to notice u/s 153C of the I.T. Act. Before the assessment was framed under this section in this case, there was a search conducted on 04-02-2010 at the assessee s premises. In this search also no incriminating material or evidence relating to the addition made in this case was found. Thus from the above it is clear that the plea of the Revenue authority that Shri Anand Agrawal is a benamidar of assessee is devoid of any cogency. When the Revenue is alleging that the apparent is not real then onus lies upon the Revenue to prove the same. In the present case Revenue has totally failed to prove the same. The documents, cash jewellery involved have been found at the time of search at the premises of Shri Anand Agrawal, Shri Anand Agrawal has owned up the same, he has filed an affidavit in this regard, he has filed the return of income in this regard, the same has been added in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment under section 153C for AYs 2003-04 to 2009-10 were pending. The AO carried on the assessment proceedings and separate orders u/s 153C relating to earlier proceedings and u/s 153A in respect of search operation dated 4.2.2010 were passed. Therefore all these assessments are not validly passed as per the provisions of the IT Act. The appeals at sr. No. 1 and 2 relate to the assessments u/s 153C and those at sr. No. 3 relate to assessments u/s 153A. All these assessments are defective." 3. Referring to the above, learned D.R. submitted that all the assessments in this case should have been annulled by the learned CIT(Appeals) and matter remitted to the AO for fresh assessments, that the Department is in the process of filing additional grounds in this regard. Hence adjournment may be granted. 4. We have heard both the counsel and perused the records. We find that in the above averments learned D.R. is accepting that the assessments are defective and they have not been validly passed. This signifies that these are invalid assessments. If this plea is accepted then there cannot be any grievance to the Revenue in learned CIT(Appeals) deleting the additions made by the AO. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny order referred to in this sub-section and passed by the Assessing Officer had been the subject matter of any appeal 31[filed on or before or after the 1st day of June, 1988], the powers of the 31a[Principal Commissioner or] Commissioner under this sub-section shall extend 31[and shall be deemed always to have extended] to such matters as had not been considered and decided in such appeal.] 32[(2) No order shall be made under sub-section (1) after the expiry of two years from the end of the financial year in which the order sought to be revised was passed.] (3) Notwithstanding anything contained in sub-section (2), an order in revision under this section may be passed at any time in the case of an order which has been passed in consequence of, or to give effect to, any finding or direction contained in an order of the Appellate Tribunal, 33[National Tax Tribunal,] the High Court or the Supreme Court. Explanation.-In computing the period of limitation for the purposes of sub-section (2), the time taken in giving an opportunity to the assessee to be reheard under the proviso to section 129 and any period during which any proceeding under this section is stayed by an order or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be invalid. 7. Further more learned DR's plea that learned CIT(Appeals) should have annulled the assessment and sent the matter back to the AO for reconsideration also has no merits. Hence there is no cogent reason for seeking adjournment. 8. Revenue's appeal. The grounds of appeal read as under : 1. Whether in law and on facts & circumstances of the case, the CIT(A) has erred in concluding that the addition of ₹ 1,21,08,113/- made by A.O. did not make out a case for including the income on substantive basis in the hands of the assessee and directing the A.O. to assess in the hands of Shri Anand Kumar Agrawal. 2. Whether in law and on facts & circumstances of the case, the CIT(A) has erred in quashing the assessment on the ground that proceedings u/s 153C are not correct and no incriminating material was found. 9. In this case the AO laconically made the addition by observing as under : " The facts of the case and submissions of the assessee are common for assessment years 2003-04 to 2009-10. The findings are also applicable to this assessment year. Shri Anand Agrawal, brother in law of the assessee has offered the following income against the valuables and loose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by Shri Anand Kumar Agrawal was in fact the money of Shri B.L. Agrawal, which was ploughed back through Shri Anand Kumar Agrawal. Under these circumstances, the only logical conclusion, specifically with respect to movable assets, is that the possessor is the owner and the liability thereupon to explain the same rests with him unless otherwise proved by credible evidence. The provisions of sec.292C of the Act in fact aim at achieving this objective. In the instant case, the A.O. has neither, during the assessment proceedings nor, during the remand proceedings, pointed out any evidence to substantiate his opinion that' the cash and gold jewellery actually belong to the appellant, except holding that the red suitcase as a whole belongs to him on the ground that it was not immediately owned by Shri Anand Kumar Agrawal, which is' a fact contrary to the initial statement of Smt. Sita Devi Agrawal 'and Shri Anand Kumar Agrawal recorded during search. The appellant's argument that the jewellery was subsequently released to Shri Anand Kumar Agrawal also establishes that the department effectively recognized Shri Anand KumarAgrawal as the owner of the jewellery, hence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ornaments, cash and documens was found with Smt. Sita Devi Agrawal. In the course of search statement of Smt. Sita Devi Agrawal was recorded during proceedings u/s 132(4) of I.T. Act, 1961. In statement u/s 132(4) she deposed in answer to question No.2 that the aforesaid bag belonged to her and contents of the same are owned by her. The inventory drawn in respect to ornaments and cash found during the course of search clearly indicate that ornaments and cash are belonging to Smt. Sita Devi Agrawal. In the course of search itself Shri Anand Agrawal in answer to question No. 40, 91 & 95 has stated that the bag containing the ornaments and cash and documents belonged to them. No where in the statement it is averred that it belongs to Shri S.L. Agrawal. Shri Anand Agrawal in subsequent statement given on 28/01/2009 has reaffirmed that papers, cash and ornaments belong to him. That ornaments found in red bag were seized on 21/10/2008 from premises of Shri Anand Agrawal. Hon'ble Commissioner of Income Tax, Raipur released aforesaid ornaments to its owner Shri Anand Agrawal on 20101/2009. This clearly indicate that ornaments belongs to Shri Anand Agrawal. Such ornaments can in no ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er in the appellate proceedings of Shri Anand Agrawal has achieved finality as it is not under challenge by revenue authorities in appeal before ITA T. The substantive assessment as directed by CIT(A) having achieved finality the very same income cannot be assessed at the hands of assessee. It is elementary principle of law that same income cannot be assessed twice. Reliance on: i) (2002) 254 ITR 0606 CIT vs. Narendra Doshi That in the order passed by Hon'ble CIT(A) at para 6 ground of appeal of assessee challenging the validity of assessment u/s 153C of LT. Act 1961 has been decided in favour of assessee. The ground of validity of assessment is not under challenge by revenue authorities in appeal filed before Hon'ble IT AT for Asstt. Year 2003-04 to 2008-09, in view thereof adjudication of ground in respect to addition on merit is of academic nature. That in the case of assessee assessment has been framed pursuance to notice issued under section 153C of LT. Act 1961. In the course of search under section 132(1) of IT. Act 1961 at the premises of Shri Anand Agrawal no incriminating material or evidence belonging to assessee was found. The perusal of assessment order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rawal is benamidar of Shri B.L. Agrawal. Reliance on: i) 1977 AIR (SC) Krishnaqnand Agnihotri vs. State of M.P. That it is settled position of law that apparent is real. Asses found from Shri Anand Agrawal in search accepted by him to be belonging to him. He offered the value of assets found as income and paid taxes on such assets found from him in 153A proceedings. Reliance on: i) (1973) 87 ITR 349 (SC) CIT vs. Daulat Ram Rawatmull. Ground No. 2: Proceedings u/s 153C of I.T. Act, 1961. A) No notice u/s 153C of I.T. Act, 1961 has been issued in the case of assessee for Asstt. Year 2009-10. Perusal of satisfaction note placed in paper book (P-11) (Vol.-I) clearly indicates that satisfaction has been drawn by A.O. for initiation proceedings u/s 153C for Asstt. Year 2003-04 to 2008-09 and not for Asstt. Year 2009-10. Ground misconceived. 14. We have carefully heard both the counsel and perused the records. At the outset we note that the entire addition in this case in the hands of the assessee is based upon the income-tax return of Shri Anand Agrawal for the same assessment year and the income disclosed by him. This income has already been added in the hands of Shri Anand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, in any proceeding under this Act, be presumed- (i) that such books of account, other documents, money, bullion, jewellery or other valuable article or thing belong or belongs to such person; (ii) that the contents of such books of account and other documents are true; and (iii) that the signature and every other part of such books of account and other documents which purport to be in the handwriting of any particular person or which may reasonably be assumed to have been signed by, or to be in the handwriting of, any particular person, are in that person's handwriting, and in the case of a document stamped, executed or attested, that it was duly stamped and executed or attested by the person by whom it purports to have been so executed or attested.] 2[(2) Where any books of account, other documents or assets have been delivered to the requisitioning officer in accordance with the provisions of section 132A, then, the provisions of sub-section (1) shall apply as if such books of account, other documents or assets which had been taken into custody from the person referred to in clause (a) or clause (b) or clause (c), as the case may be, of sub-section (1) of section 132A, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , held, he cannot be held liable under PC Act for such assets." ii) Krishnanand v. State of M.P. AIR 977 Supreme Court 796. The burden of showing that a particular transaction is behami and the owner is not the real owner always rests on the person asserting it to be so and this burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of benami is the intention of the parties and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises as a substitute for proof. It is not enough merely to show circumstances which might create suspicion, because the court cannot decide on the basis of suspicion. It has to act on legal grounds established by evidence. AIR 1974 SC 171 (Para 26). In the instant case though the prosecution alleged that certain amouns lying in the name of accused's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the Revenue is alleging that the apparent is not real then onus lies upon the Revenue to prove the same. In the present case Revenue has totally failed to prove the same. The documents, cash & jewellery involved have been found at the time of search at the premises of Shri Anand Agrawal, Shri Anand Agrawal has owned up the same, he has filed an affidavit in this regard, he has filed the return of income in this regard, the same has been added in his hands on substantive basis as per the appellate order of the CIT(Appeals), the Revenue has decided not to appeal against the said order, thus the addition of this amount in the hands of Shri Anand Agrawal has reached finality. There is no evidence whatsoever found in the course of the search that that Shri Anand Agrawal is a benamidar of the assessee, rather the Department has made search on Shri Anand Agrawal as independent group, this itself dispels the doubt of the AO that Shri Anand Agrawal is a benamidar of the assessee. In the background of aforesaid discussion and precedent, we hold as under : 1. Once the same amount has been added on substantive basis by the appellate order in the case of Shri Anand Agrawal and Revenue h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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