9911796707
TMI Blog2025 (4) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... eciate the contention of the assessee that the proceedings have wrongly been initiated u/s 148 and, if at all, the proceedings were liable to be initiated, the same could have been initiated only by issuance of notice u/s 153C and, thus, the assessment as framed by the AO u/s 148/143(3) deserves to be quashed. b) That the Ld. CIT(A) has ignored the binding judgement of the Hon'ble Apex Court in the case of 'Vikram Sujit Kumar Bhatia' reported in, 453 ITR page 417 and that binding judgement have been ignored in a summary manner. c) That the re-opening of the assessment whether u/s 148 or 153C goes to the root of assumption of jurisdiction and since the very basis of the initiation of proceedings have wrongly been initiated u/s 148, the proceedings as initiated by issuance of notice u/s 148 deserves to be quashed. d) That the same contention were raised before the Ld. Assessing Officer as per objections to the reasons recorded for proceedings u/s 148, as made by the appellate but the same have been dismissed without assigning any reasons. 2.a) Notwithstanding, the above said grounds of appeal has erred in confirming the action of the AO in re-opening the case u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... getting barred by time. This is apparently incorrect observations as the assessee had made a request for cross-examination vide letter dated 26.11.2018 vide para 2.1 of the letter and repeated request was made by letter dated 26.12.2018. b.) That the finding of the CIT(A) that Sh. Sushil Kumar Accountant of Sh. Sanjay Bansal was known to the assessee is totally misconceived, as appellate had no link or connection with the said Sh. Sushil Kumar as Sh. Sushil Kumar had never worked with the appellate. c.) That the finding of the CIT(A) in para 6.7 about the filing of the affidavit by Sh. Sanjay Bansal and accountant Sh. Sushil Kumar's retraction is concerned, this observation is totally incorrect as Sh. Sanjay Bansal has never stated that the amount have been paid to the appellate and regarding the other person namely Sh. Sushil Kumar, the appellate had/have no connection with him as he is totally stranger, rather Sanjay Bansal have denied to made any such alleged payment, which is even recorded at Para No. 9.2 of Order U/s 153A of Searched person, namely Sanjay Bansal, relied upon by the Ld. AO in the present matter. d.) That the CIT(A) has failed to appreciate that while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received on transfer from ITO Ward-2, Kurukshetra which was received by him through JCIT, Range, Kurukshetra from Dy Commissioner of Income tax, Centre Circle, Dehradun vide file No. DCIT/CC/DDN/MISC/2015-16/5 dated 15.04.2015, a search under Section 132 of the I.T. Act 1961 had taken place on Dev Bhomi Institute of Technology Group on 26.4.2012 and its Chairman Sh. Sanjay Bansal R/o 32/4 EC Road, Dehradun and premises of Shri Krishna Educational Trust, Rattan Dera, Kurukshetra was also covered. During the course of search certain evidences were gathered and subsequently post search enquiries of investigation wing, certain facts emerged which indicated that Sh. Sanjay Bansal and his family members have taken over the management and control of M/S Shri Krishna Educational Trust, Rattan Dera, Kurukshetra by virtue of amended trust deed dated 14.10.2010 from outgoing trustees including the assessee Sh Subash Gupta of SKET. Documents seized from the premises of Shri Krishna Educational Trust, Rattan Dera, Kurukshetra during search revealed that Sh. Sanjay Bansal has made cash payment of about 35 crores to 40 crores to the outgoing trustees of this Trust for taking over the control and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tries are clearly reflected in the balance sheet of Shree Krishna Education Trust which therefore, makes a safest assumption that the seized document is true/real/authentic as if, transactions in white are matching with balance sheet then the other notings also have to be correct and true in all true respect. 4. In addition to the above, it is also pertinent to note that during the course of scrutiny proceedings U/s 153A in the case of Sh. Sanjay Bansal, statement of Sh. Sushil Kumar, Accountant of Sh. Sanjay Bansal was recorded who categorically admitted in his statement that this particular document which was seized during search was a real/authentic document and that the same was in his handwriting written on the directions of Sh. Sanjay Bansal. 5. Further, the retired trustees who received payment on sale of the trust (SKIET) were also examined during search and it was found that Sh. Sushil Kumar in his statement had submitted that vehicles of the trust had been retained and used by the individual trustees for personal purposes and that is why different vehicles are mentioned under the name of each trustee in above documents. The above facts have been found to be correct. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... information contained therein relates to a person other than the person referred to in Section 153A, then the AO of the searched person would record his satisfaction that action under Section 153C is required to be taken against any other person qua him books of account/documents/information unearthed during the course of search. In other words, if any information could be inferred from a seized document, then also notice under Section 153C is required to be issued. The ld. Counsel for the assessee further relied upon the judgement of Hon'ble Supreme Court in the case of Vikram Sujit Kumar Bhatia reported in 453 ITR 417. Before the Finance Act 2015, Section 153C contemplates that where AO is satisfied that any money, bullion, jewellery or other valuable articles or things or books of account or documents seized or requisitioned BELONGS OR BELONGS TO a person other than a person referred to in Section 153A. The expression 'belong or belong to' has been further amplified in the Finance Act 2015 wherein under sub-clause (b) of subclause (1), the Legislature has used the expression PERTAINS OR PERTAINS TO in place of BELONGS OR BELONGS TO. The ld. Counsel for the assessee has emph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, relates to, a person other than the person referred to in section 153-A, then, the books of account or documents or assets, seized or requisitioned shall be handed over to the Assessing Officer having jurisdiction over such other person and that Assessing Officer shall proceed against each such other person and issue notice and assess or reassess the income of the other person in accordance with the provisions of section 153A, if, that Assessing Officer is satisfied that the books of account or documents or assets seized or requisitioned have a bearing on the determination of the total income of such other person for six assessment years immediately preceding the assessment year relevant to the previous year in which search is conducted or requisition is made and for the relevant assessment year or years referred to in sub-section (1) of section 153-A: Provided that in case of such other person, the reference to the date of initiation of the search under section 132 or making of requisition under section 132-A in the second proviso to sub-section (1) of section 153-A shall be construed as reference to the date of receiving the books of account or documents or assets seized or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtains to or any information contained therein relates to a person other than the person referred in Section 153A, then AO of the searched person would record his satisfaction and transmit those materials to the AO of such other person qua whom these materials have been found during the course of search. Prior to Finance Act, 2015, this Section was not in the present shape. It has been divided in two categories post 2015. The first limb of Section deals with items discovered in physical form i.e. money, bullion, jewellery and the second limb of Section provides if any books of account, documents seized or requisitioned pertains or pertains to or any information contained therein pertains to a person other than the person covered under Section 153A, then procedure contemplated under Section 153C is required to be followed. In the old Section, only sub-clause (1) was available, however in the post amendment, this sub-clause (1) has been divided in (a) and (b). Under sub-clause (b), the scope of the Section has been amplified. It provides that any books of account, documents seized or requisitioned pertains or pertains to or any information contained therein relates to a person other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and it is observed that if said appeals are preferred within four weeks from today, the same be considered in accordance with law and on their own merits, on any other grounds. Present appeals are accordingly allowed in terms of the above. However, in the facts and circumstances of the case, there shall be no order as to costs." 11.2 Thus, according to this decision of the Hon'ble Supreme Court, this post amended Section of 153C will be applicable in this assessment year also. The assessment order is dated 31.12.2018 i.e. after the amendment carried out in Section 153C by Finance Act, 2015. 12. We have taken cognizance of the alleged seized material (extracted supra) as well as the belief formed by the AO while recording the reasons for re-opening of the assessment. According to the Revenue, this paper pertains to the assessee. The information contained in this paper is regarding payment of Rs.13 Cr to the assessee. Thus, this also pertains to the assessee. In such situation, to our mind, the AO ought to have initiated the proceedings under Section 153C. In other words, AO of the searched person i.e. AO of Shri Sanjay Bansal or of the Trust should have recorded satisfacti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gether with other group of trustees; that during the year 201011 the management of said trust was handed over to another team of trustees headed by aforesaid Shri Sanjay Bansal as its chairman; that subsequently, a search & seizure action under section 132 was carried at the residence of said Sanjay Bansal and his business premises in which the premises of SKET were also covered; that during search several incriminating documents were found and seized; that such documents also contained the documents written by one Shri Sushil Kumar accountant of Shri Sanjay Bansal; that Shri Sanjay Bansal as well as Shri Sushil Kumar accountant admitted to have written these documents in the handwriting of Shri Sushil Kumar accountant. These documents contained entries showing the Shri Sanjay Bansal as to have paid Rs. 13.00 crore to the assessee; and Shri Sushil Kumar accountant of Shri Sanjay Bansal confirmed that these seized documents contained the detail of settlement of account, inter alia, with the assessee. A copy of said seized document containing the information relating to the assessee is attached herewith. 7.3 A perusal of the seized document shows that it contain both type of entrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfied that the assessee has also violated the provisions of section 269SS rendering him liable for penalty under section 27ID." 15. Appeal to the CIT(A) did not bring any relief to the assessee. 15.1 While impugning the order of the Revenue Authorities below, ld. Counsel for the assessee has submitted that this document was not found from the possession of the assessee. It was not in his handwriting. It was a document allegedly recovered from the premises of a third person. It cannot be an incriminating document qua the assessee because assessee has no control over a third person what he writes in his diary, loose paper, books etc. There was no paralleled search conducted upon the assessee. It was stated by the AO that this document was in the handwriting of Shri Sushil Kumar who happened to be the Accountant of Shri Sanjay Kumar Bansal at the relevant time. Statement of Shri Sushil Kumar was not recorded under Section 132(4) of the Income Tax Act. This declaration came to the notice of the Department when his statement was recorded during the assessment proceedings of Shri Sanjay Bansal. It was taken under Section 131 of the Income Tax Act and not under Section 132(4) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee nor was found from his premises. It is a document found at the premises of a third person. The assessee had no control over any other person, what they write in their accounts at their office/residence. He cannot be charged to any liability on the basis of writing made by a third person. This aspect was considered by the Hon'ble Supreme Court in the case of CBI Vs V.C.Shukla and others (1998) 3 SCC page 410 wherein CBI sought to prosecute certain politicians on the basis of one Diary written by one 'Jain' which was known as 'Jain Hawala Diary'. All the charges were quashed by the Hon'ble Supreme Court by holding that a person shall not be made accountable for the writings made by a third person in his notings. It has came on the record the paper was in the handwriting of one Shri Sushil Kumar whose statement was not recorded under Section 132(4), therefore, no presumption of truth can be attached to his statement. Even otherwise, presumption of truth can be drawn qua deponent who made such declaration. Qua the third person, no presumption of truth can be inferred. He has imputed these allegations in order to settle certain disputes with his erstwhile employer i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, assessee has pleaded that alleged re-assessment is not sustainable because no notice was issued to the assessee under Section 143(2) of the Income Tax Act. 18. The brief facts of the case are that a notice under Section 148 of the Income Tax Act was served upon the assessee on 31.03.2018. The assessee has raised objection against re-opening of the assessment. Simultaneously he submitted that return filed originally under Section 139(1) is to be treated as filed in response to the notice received under Section 148. The assessee again reminded the AO that his original return be treated as filed in response to 148 notice. Copies of these replies are available on page No. 8 and 21 of the Paper Book. On receipt of this reply, the AO was bound to issue notice under Section 143(2) but he has not issued any notice. A narration is being made in the first page of the assessment order that subsequently information was called for vide notices under Section 143|(2) and 142(1). But specifically no notice under Section 143(2) was issued. Thus, according to the ld. Counsel for the assessee, the assessment order is not sustainable. In support of the contention, he relied upon following judgem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in cash in violation of Section 269SS of the Income Tax Act. This penalty has been confirmed by the CIT(A). 23. With the assistance of ld. Representative, we have gone through the record carefully. If Section 269SS of the Income Tax Act is being perused, then it would reveal that it prohibits any person to take or accept from any other person any deposit or loan or any specified sum other than by Account Payee Cheque/Bank Draft or Electronic Clearing System, then such person will be liable to pay penalty of equal amount. According to the AO, assessee has accepted a sum of Rs.13 Cr from Shri Sanjay Bansal in cash, therefore, he deserves to be visited with penalty. To our mind, this penalty is not sustainable for two reasons : a) We have already deleted the addition made to the total income of the assessee, therefore, it cannot be construed that assessee has accepted a sum of Rs.13 Cr in cash. b) This was neither loan nor deposits. This amount does not fall within the ambit of Section 269SS of the Income Tax Act. Therefore, no penalty is imposable on the assessee. Accordingly, this appeal of the assessee is allowed and both orders are set aside. The assessee does not deserve to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
