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TMI Blog2024 (11) TMI 318X X X X Extracts X X X X X X X X Extracts X X X X ..... abled the assessee to utilize the same wherever he is. Assessee being a resident in India holding various international credit cards of various friends and relatives and the assessee was able to utilize the same wherever he is. When the Investigation Wing asked for details, the assessee was not able to provide the same nor submitted any information during the investigation. The same was forwarded to the AO and AO having jurisdiction over the assessee and after verification of the information available on record, the information forwarded by the Investigation Wing was not reflected anywhere in the information available with the AO - AO has no option but to reopen the assessment to make further investigation. Accordingly, the AO also issued notice u/s 143(2) of the Act to collect the information. In response only, assessee attended the proceedings and submitted the relevant information. Therefore, the submissions of the assessee and relying on the decision of Hon ble Delhi High Court are distinguishable to the facts on record. Accordingly, grounds raised by the assessee are dismissed and also we observed that ld. CIT (A) has elaborately discussed the above points and rightly dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred to Ld. CIT (A) ) dated 26.08.2019 for Assessment Year 2008-09. 2. Since the issues are common and the appeals are connected, hence the same are heard together and being disposed off by this common order. 3. Brief facts of the case are, the assessee filed his return of income for AY 2008-09 on 11.08.2008 declaring total income of Rs. 33,99,804/-. A survey action u/s 133A of the Income-tax Act, 1961 (for short the Act ) was carried on 15.04.2010 on the assessee by DDIT (Inv.), Unit-II (1), Mumbai and a survey report along with impounded material were forwarded to the Assessing Officer. Accordingly, the case was selected for scrutiny and notice u/s 148 of the Act was issued and served on the assessee on 29.03.2012. Accordingly, notice u/s 143 (2) of the Act was issued and served on the assessee. Ld. AR of the assessee appeared from time to time and filed the relevant information as called for. 4. The Assessing Officer considered the income declared by the assessee and statements on oath recorded during the course of survey proceedings, analysed materials impounded and information received from FT TR, the assessment was finalized by the Assessing Officer by observing as under. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onged to him and all these payments were settled by the respective members of the family or friends and settled by them. 5. After considering the above submissions, the Assessing Officer observed that it is well settled rule of evidence relating to material found during the course of survey proceedings is that the onus to prove that the same are not related to the party on whom survey was carried out lies on the assessee himself. In this case, assessee could not produce evidence that the payment was made by his wife. Mere submission of the assessee cannot be accepted as evidence and proof and the assessee failed to discharge the onus of proving in this regard. It is alleged that his wife is an NRI, hence is staying abroad either in US or UK and while the assessee is maintaining their credit cards in India and making the payments accordingly. The assessee has not shifted the burden of proof to Department as he has failed to produce those persons who are supposed to confirm on oath with relevant documentary evidences regarding owning up of the ownership of the credit cards found in the possession of the assessee during the survey proceedings. The claim of the assessee is based on ora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g added protectively in the hands of the assessee. 8. Aggrieved with the above order, assessee preferred an appeal before the ld. CIT (A)-28, New Delhi by raising several grounds of appeal objecting to the reopening of the assessment u/s 147 of the Act and additions proposed by the Assessing Officer on merits. 9. After considering the detailed submissions of the assessee, ld. CIT (A) rejected the submissions on reopening of the assessment, on the issue of reopening of assessment u/s 143(1) and issue relating to notice u/s 143(2) of the Act. 10. With regard to addition u/s 69C and 68 of the Act, ld. CIT (A) sustained the additions with the following observations :- 4.1 I have considered the facts of the case, basis of additions made by AO and submissions of the appellant. As it can be seen from the assessment order that the aforesaid credit cards were detected during the survey proceedings u/s 133A of the IT Act having evidentiary value of the material found. The onus was on the appellant to explain that why he was in possession of these credit cards having knowledge of each and every entry transactions and being capable of using these credit cards regularly for his own personal pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Assessing Officer had not formed any opinion in terms of section 147 of the Act but he proceeded on borrowed satisfaction which is repugnant of the provisions of Section 147 of the Act. 1.3 The Ld. Commissioner of Income tax (Appeals) failed to appreciate that in the report from Mumbai Income-tax Department it was their observation that the information needs to be scrutinized and the Assessing officer proceeded on that basis; oblivious of the fact that once section 147 of the Act, it cannot be applied for scrutinizing. 2. Without prejudice to the above, the Ld. Commissioner of Income-tax (Appeals) erred in confirming the addition of Rs. 5,12,85,8951- u/s. 69C of the I.T. Act, 1961 on account of alleged unexplained expenditure incurred by the appellant through 14 credit cards in the assessment year under consideration. 2.1 The Ld. Commissioner of income-tax (Appeals) failed to appreciate that the credit cards mentioned in the reasons recorded, 12 credit cards did not belong to the appellant and they were never found in the possession of the appellant ( except two credit cards). 2.2 The Ld. Commissioner of Income-tax (Appeals) failed to appreciate that 12 of the 14 credit card ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit cards and amounts alleged to be spent by the assessee in US$ and UK Pound are listed. He submitted that except Item No.1 3, all other credit cards are not relating to the assessee. The Assessing Officer merely recorded that it needs scrutiny. Therefore, he proceeded to reopen the assessment and there is no other information in the reasons recorded by the Assessing Officer of any escapement of income. In this regard, he relied on the decision of Hon ble Delhi High Court in PCIT vs. Meenakshi Overseas Pvt. Ltd. (2017) 395 ITR 677 (Delhi) dated 26.05.2017 and he brought to our notice page 680 of the decision wherein similar case of information received from DIT (Inv.) with regard to accommodation entries. The Assessing Officer proceeded to issue notice u/s 148 of the Act after taking approval from ACIT wherein similar reasons for the plea of income escapement was recorded and then he brought to our notice page 684 of the decision. The Hon ble High Court has observed that one would have expected the Assessing Officer to point out what he found when he went through the information and what in such information led him to prove that the income has escaped assessment. They observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed on the tangible material available on record. He further relied on various decisions relied by the ld. CIT (A) that the information received from DIT (Inv.) constitute tangible material. With regard to issue of non-issue of notice u/s 143(2), he submitted that ld. CIT (A) has given a clear cut finding that notices u/s 142(1) or 143 (2) will not issue again and these notices cannot be issued only when there are assessment proceedings pending against the case of the assessee. He further submitted that in this case, the Assessing Officer issued 143(2) notice to the assessee and in response, ld. AR of the assessee appeared on behalf of the assessee from time to time and the same fact was already recorded in the assessment order itself. 17. Ld. DR further submitted that all the credit cards were found in the mobile of the assessee and the assessee was using those credit cards. He submitted that the presumption is that the tangible material belongs to the assessee and the assessee has not provided any detail before the Investigation Wing at the time of survey nor before the Assessing Officer. He relied on the findings of the ld. CIT (A) that assessee has not provided any details exce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holding various international credit cards of various friends and relatives and the assessee was able to utilize the same wherever he is. When the Investigation Wing asked for details, the assessee was not able to provide the same nor submitted any information during the investigation. The same was forwarded to the Assessing Officer and Assessing Officer having jurisdiction over the assessee and after verification of the information available on record, the information forwarded by the Investigation Wing was not reflected anywhere in the information available with the Assessing Officer. Therefore, the Assessing Officer has no option but to reopen the assessment to make further investigation. Accordingly, the Assessing Officer also issued notice u/s 143(2) of the Act to collect the information. In response only, ld. AR of the assessee attended the proceedings and submitted the relevant information. Therefore, the submissions of the assessee and relying on the decision of Hon ble Delhi High Court are distinguishable to the facts on record. Accordingly, grounds raised by the assessee are dismissed and also we observed that ld. CIT (A) has elaborately discussed the above points and rig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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