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TMI Blog2019 (9) TMI 1715X X X X Extracts X X X X X X X X Extracts X X X X ..... io thus, the reassessment proceeding are accordingly quashed. Decided in favour of assessee. - Shri Bhavnesh Saini, Judicial Member And Shri O.P. Kant, Accountant Member For the Appellant : Shri C.S. Aggarwal, Sr. Adv. Shri Ravi Pratap Mal, Adv. For the Respondent : Shri Amit Katoch, Sr.DR ORDER PER O.P. KANT, A.M. These two appeals by the Revenue are directed against two separate orders, both dated 14-01-2019 passed by the Ld. Commissioner of Income-tax (Appeals)-24, New Delhi [in short the Ld. CIT(A) ] for assessment years 2010-11 and 2011-12 respectively. As identical grounds have been raised in same set of circumstances in both these appeals, therefore, same were heard together and disposed off by way of this consolidated order for sake of convenience. 2. First we take up the appeal having ITA No. 1471/Del/2019 for assessment year 2010-11. The grounds raised in the appeal are reproduced as under 1. That the learned Commissioner of Income Tax (Appeals) has erred both in law and on facts in upholding the order of assessment passed us 148 r.w.s. 143(3)153A of the Act. In so doing, he has failed to comprehend that even the assumption of juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te that the assessee had received a sum of Rs. 3,15,00,000- from Ms Stanford Hospitality (India) Private Limited and remaining sums were received from (a) Anglican Indian Consultancy Private Limited and (b) Stanford Hotel Management Private Limited., though the same were under same management and one of the director was a common director of the company. 9. That without prejudice to each of the aforesaid ground of appeal, the learned CIT(A) ought to have remanded the matter to the AO to have either summoned the creditors whose identity was well established or the manager of the bank with whom the said creditors had their accounts and monies had been received by the assessee from the said bank accounts. It is therefore prayed the addition sustained of Rs. 4,95,00,000- be directed to be deleted. 3. Briefly stated facts of the case are that (i) The assessee, an individual filed its original return of income for the year under consideration on 27-07-2010, declaring total income of Rs.93,09,220-. (ii) Subsequently, a search and seizure action under section 132(1) of the Income-tax Act, 1961 (in short the Act ) was carried out on 16012013 at the premises of the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee was supplied copy of reasons recorded for reopening the assessment on 28-08-2017. The objections filed by the assessee on 20-11-2017 challenging the reassessment proceeding, were disposed off by the Assessing Officer on 18-12-2017 and the reassessment under section 147 was completed on 28-12-2017 at total income of Rs.5,88,09,223-, inter alia, making addition of Rs.4,95,00,000-. (viii) During reassessment proceeding, the Assessing Officer again issued summon under section 131 to the assessee requiring to produce Principal Officer of Stanford Hospitality along with relevant document, however, the assessee failed to do so. The Assessing Officer further observed from the assessment order dated 28-03-2013 in the case of Stanford Hospitality for the year under consideration that name of the assessee was not appearing in the loans of Rs.1,04,95,500- provided by said identity during the year under consideration. The assessee for the first time claimed that a part of the unexplained credit of Rs.4,95,00,000- was received from some other entities also. In view of the facts, the Assessing Officer concluded that the assessee failed to satisfy ingredient of section 68 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the additions made by the assessing officer relying upon Hon ble Delhi High Court order in the case of Kabul Chawla. The addition was deleted on technical ground that no incriminating material was found during the search action conducted upon the assessee from which it can be established that the loan received from Ms. Stanford Hospitality (I) P. Ltd. are not genuine and are bogus. 3. The Id. CIT(A) has not given any comment regarding the merits of the case. During the remand report proceeding of the case, it was noticed that the party named Ms. Standard Hospitality does not exist. This party had filed confirmation letter dated 23.12.2016 regarding the loan transaction before the Ld. C1T(A). But, when the enquiries were conducted by the inspector in this matter, it was found that the address given by it in its confirmation letter during the appellate proceeding, i.e. T-5B, Windsor Court, DLF City Phase- IV, Gurgaon. is a residential complex. The said flat is in the possession of Miss Anushka and she does not even know Ms. Stan fort Hospitality (India) pvt. Ltd. (Inspector report is enclosed with this proposal as per annexure 'X .) 4. further, the summon us 131 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereafter in this section and in sections 148 to 153 referred to as the relevant assessment year): Provided . Provided further . Provided also that the Assessing Officer may assess or reassess such income, other than the income involving matters which are the subject matters of any appeal, reference or revision, which is chargeable to tax and has escaped assessment. 4.5 In view of the clear provisions, we are of the considered opinion that Assessing Officer was not justified in reopening the assessment for assessing the income which was subject matter of the appeal before the Tribunal. Accordingly, we hold the reassessment in the instant case as void-ab-initio thus, the reassessment proceeding are accordingly quashed. 4.6 As we have already quashed the reassessment proceeding, the other arguments of the Ld. Senior Counsel challenging the reassessment proceeding and the merit of the addition are rendered merely academic and, therefore, we are not ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the end of the year aggregated to Rs. 6,14,00,000- in the account of Ms Stanford Hospitality (India) Pvt. Ltd. out of which only Rs. 3,44,00,000- had been received during the year and after repayment of Rs. 45,00,000- the balance remained at Rs. 2,99,00,000-. 8. That in any case and without prejudice the learned CIT(A) has erred in sustaining addition of Rs. 1,63,94,000- received from Ram Shanti Co-operative Group Housing Society Limited, which was not the sum held as unexplained credit (though the same were under same management and one of the director was common director of the company)., 9. That without prejudice to each of the aforesaid ground of appeal, the learned CIT(A) ought to have remanded the matter to the AO to have either summoned the creditors whose identity was well established or the manager of the bank with whom the said creditors had their accounts and monies had been received by the assessee from the said bank accounts. It is therefore prayed the addition sustained of Rs.4,62,94,000- be directed to be deleted. 6. The grounds raised in the instant assessment year are identical to the grounds raised in assessment year 2010-11. The facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee s books. 5. The fact of non-existence of alleged lender was not known during assessment proceedings and the addition has been deleted by the C1T(A) on technical grounds, without considering above fact noted during remand proceeding. Thus at this stage, the income of Rs. 4,62,94,000- stands escaped assessment, which should be charged in the hands of the assessee. Therefore, the case of Sh. Gautam Bhalla is required to be reopened for the A.Y. 2011-12. 6. From the facts and discussion above, it is clear that the escapement of tax in the case is only due to the incomplete and partial disclosure of facts by the assessee during the assessment proceedings as well as appellate proceedings. Hence, I am satisfied that this is the lit case for issuance of notice under section 148 of the Act. 7. In view of above facts, I have reasons to believe that income of Rs.4,62,94,000- which should be charged to tax in the hands of Sh. Gautam Bhalla has escaped from being taxed for A.Y. 2011-12. Hence, I am satisfied that it is a fit case for issuance of notice us 148 of the Income Tax Act, 1961. 7. In view of the facts and circumstances of the instant year identical to fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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