9911796707
TMI Blog2019 (9) TMI 1715X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act. In so doing, he has failed to comprehend that even the assumption of jurisdiction us 147 of the Income Tax Act by the AO was outside the pale of the aforesaid statutory provisions. 2. That the learned CIT(A) has further failed to appreciate that the proceedings had been initiated by the AO on the directions of the CIT(A), which was beyond his jurisdiction and as such the initiation of proceedings itself on that ground alone is untenable in law. 3. That even otherwise, the learned CIT(A) has failed to appreciate that the assessment had been framed us 153A of the Act and as such, no valid proceedings could have been initiated us 147 of the Act. 4. That the learned CIT(A) has further failed to comprehend that the third proviso below section 147, specifically excludes the taxability of such income which are the subject matter of appeal, as such the learned AO could not have initiated the proceedings to tax such income by issue a notice us 147 of the Act to tax only that income which was the subject matter of appeal and to tax such an income. 5. That the learned CIT(A) has failed to appreciate that the sum sought to be added and has been alleged to be an escaped inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carried out on 16012013 at the premises of the assessee along with the search action at the premise of "Vatika" group. (iii) Consequent to search action, in response to notice under section 153A of the Act, the assessee again filed return of income and assessment was completed on 30032015 under section 153A read with section 143(3) of the Act at total income of Rs.5,18,09,223- after making addition of Rs.4,95,00,000- as unexplained credit under section 68 of the Act. (iv) The assessee filed appeal before the learned First Appellate Authority against the assessment order and filed confirmation letter from Ms Stanford Hospitality (India) Private Limited (in short the 'Stanford Hospitality') in respect of the loan received of Rs.4,95,00,000- as an additional evidence. The Ld. CIT(A) asked remand report from the Assessing Officer with the direction to conduct enquiry regarding the loan received. (v) During remand proceeding, the Assessing Officer issued summon under section 131 of the Act to the assessee for producing Principal Officer of 'Stanford Hospitality'. The Assessing Officer also issued summon directly to the 'Stanford Hospitality' but no compliance was made either by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfy ingredient of section 68 of the Act and accordingly, made the addition of Rs.4,95,00,000-. (ix) The Ld. CIT(A), upheld the legality of initiating reassessment proceeding challenged by the assessee and also upheld merit of the addition. (x) Aggrieved with the impugned order of the Ld. CIT(A), the assessee is in appeal before the Tribunal raising the grounds as reproduced above challenging the legality of the reassessment proceeding as well as merit of the addition. 4. In the grounds raised, grounds No. 1 to 6 are with respect challenge of reassessment proceeding and ground No.7 to 9 are related to merit of the addition. 4.1 Before us, Ld. Senior Counsel of the assessee filed paperbook containing pages 1 to 480 and filed brief synopsis of the case. The Ld. Senior Counsel mainly argued ground No. 5 of the appeal. The Ld. Senior Counsel drawn our attention to the copy of reasons recorded available on page 120 of the paper-book and submitted that reassessment proceedings have been initiated on the advice of the Ld. CIT(A). He further submitted that addition of unexplained cash credit made by the Assessing Officer in the reassessment proceeding was deleted by the Ld. First ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the summon us 131 of the I.T. Act, 1961 was issued to the assessee with a direction to produce the party ;Ms. Stanford Hospitality (India) Pvt. Ltd', before the undersigned on 13.03.2017. But the assessee failed to produce the party. Hence, it is evident that the loan which has been shown by the assessee in its books as received from Ms. Stanford Hospitality (I) P. Ltd. are not genuine and are bogus credits in the assessee'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 CIT(A) on technical grounds, without considering above fact noted during remand proceeding. Thus at this stage, the income of Rs. 4,25,00,000- 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. 2010-11. 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 fit case for issuance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, we are not adjudicating upon those arguments. 4.7 The appeal of the assessee is accordingly allowed. ITA No.1472/Del/2019 for AY: 2011-12 5. In ITA No.147/12/2019 for assessment year 2011-12 following grounds have been raised 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 jurisdiction us 147 of the Income Tax Act by the AO was outside the pale of the aforesaid statutory provisions. 2. That the learned CIT(A) has further failed to appreciate that the proceedings had been initiated by the AO on the directions of the CIT(A), which was beyond his jurisdiction and as such the initiation of proceedings itself on that ground alone is untenable in law. 3. That even otherwise, the learned CIT(A) has failed to appreciate that the assessment had been framed us 153A of the Act and as such, no valid proceedings could have been initiated us 147 of the Act. 4. That the learned CIT(A) has further failed to comprehend that the third proviso below section 147, specifically excludes the ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase are also identical to the facts and circumstances of assessment year 2010-11. The only change in respect of the amount of unexplained cash credit made under section 68 of the Act, which in the instant year, is of Rs.4,62,94,000-. A copy of reasons recorded for reopening the assessment for the year into consideration, is available on page 124 of the paper book filed by the assessee, are reproduced as under "The case of the assessee was completed us 153A r.w.s 143(3) of the Income Tax Act. 1961 vide assessment order dated 30.03.2015 and the income was assessed at Rs. 5,43,83,644- after making an addition of Rs. 4,62,94,000- on account of unexplained credit us 68 of the Income Tax Act, 1961. 2. The Ld. CIT(A) vide its order dated 08.03.2017 has deleted 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 ld. CIT(A) has not given any comment ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
