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TMI Blog2025 (4) TMI 614X X X X Extracts X X X X X X X X Extracts X X X X ..... on order dated 09.01.2017 (Annexure P/1) passed in ITA No. 111/BLPR/2012, 114/BLPR/2012, 113/BLPR/2012 and 110/BLPR/ 2012, respectively, by which the challenge made by the Revenue to the common order dated 31.05.2012 (Annexure A/2) passed by the Commissioner of Income Tax (Appeals), has been rejected. 4. The facts, in brief, as projected by the appellant/Revenue is that a search and seizure action under Section 132 of the Income Tax Act, 1961 (for short, the Act of 1961) was conducted on 04.02.2010 at the residential premises of the assessee. Similar search was also conducted at the residential premises of assessee's parents/brothers, business premises of M/s Prime Ispat Limited, a closely held Company and other related business concerns and also the residential and office premises of the then Chartered Accountant of the group Shri Sunil Kumar Agrawal. Subsequently, the assessments were completed under Section 143(3) read with Section 153A of the Act of 1961, on 30.12.2011. The year-wise total income as per return and as assessed by the AO on protective basis was as under: A.Y. Returned Income (In Rs.) Assessed Income (In Rs.) 2005-2006 4,18,530 5,70,30,437/- (Wrongly me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sant with the nitty-gritty of share trading activity and they have made huge cash deposits in the newly opened bank accounts, which were ultimately transferred to M/s Prime Ispat Ltd. The scheme of circulation of funds was fully exposed during search at the residence / office premises of Shri Sunil Kumar Agrawal, as well as his associates (Shri Vinod Agrawal, Uncle of Shri Sunil Kumar Agrawal and Shri Vimal Agrawal, Cousin of Shri Sunil Kumar Agrawal) deposed before the authorized officer and admitted of doing this work for the benefit of Prime Ispat Ltd. Shri Sunil Kumar Agrawal, when interrogated about the source of money, has stated that it possibly belongs to the assessee and he was getting commission of 2% for this work. During the search operation, Shri Vimal Agrawal accepted that on the direction of Shri Pawan Agrawal, Shri Ashok Agrawa and Shri Babulal Agrawal, 13 Companies and other firms were started as these persons wanted to convert their black money into white without paying any tax. For this purpose about 230 bank accounts in the name of different persons were opened. Shri Vinod Agrawal also repeated the same things in his statement. The assessee was asked to explain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere opened. 8. Mr. Mishra further submits that the learned Tribunal failed to appreciate that, unaccounted income of the assessee Shri Babulal Agrawal has been introduced in the form share capital/premium in the books of M/s Prime Ispat Ltd. It is pertinent to mention here that the assessee's brother Shri Ashok Agrwal & Shri Pawan Agrawal and his other close relative were Directors of M/s Prime Ispat Ltd. M/s Prime Ispat Limited is closely related to the assessee and he has used a colorable device to conceal his unaccounted income. Thus, protective assessment made in the case of assessee is fully justified. 9. Mr. Mishra lastly submits that recently action has been taken by the Central Bureau of Investigation and the Enforcement Directorate against the assessee which strengthens the fact unearthed by the Department that the assessee has moved his unaccounted income through different types of Benamidar and shell Companies. Shri Sunil Kumar Agrawal, C.A. has also been arrested by Enforcement Directorate on the basis of statement of some villagers of Kharora Village. 10. On the other hand, Mr. Vinay Kumar Jain, learned counsel for the respondent/Assessee submits that the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and under such circumstances, the protective assessment made by the AO is not correct. It is the settled position of law that, protective assessment can be possible only when the IT authorities are not clear as to in whose hands a particular income is to be assessed and then as a precautionary and protective measure they can initiate proceedings on more than one person in respect of the same income. There is no direct evidence or any confusion regarding ownership of the disputed income except the unsubstantiated and baseless statement of Shri Sunil Kumar Agrawal with respect of M/s Prime Ispat Limited. That there is also no evidence to hold that the respondent or the fruits of the investments have any time been enjoyed by him. Further, it is pertinent here to mention that it is undisputedly clear from the assessment orders in the case of Mahamaya Agrotech. Private Limited, Bapu Agricultre, Express Mining Private Limited that the AO completed substantive assessments in these cases without any reservations. This clearly shows that there was no doubt prevailing in the mind of the AO and under such circumstances, the same income which was assessed on substantive in one case cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the sole basis for addition is a statement of Chartered Accountant Shri Sunil Kumar Agrawal that he was doing capital building work for benefit of M/s Prime Ispat Ltd. It was stated that the Company amassed huge capital which was coming from cash deposits made by numerous individuals. Shri Sunil Kumar Agrawal has stated that the money belonged to the assessee and he was doing this activity on 2% commission basis. Shri Sunil Kumar Agrawal has later retracted his statement and has given an affidavit that his earlier statement was under duress. Further, it is pertinent here to mention that the appellant has alleged that the learned Tribunal has passed the order without even considering the statements of Shri Vimal Agrawal and Shri Vinod Agrawal who were the Directors in the shell Companies through which huge sum was introduced in the garb of share capital and share premium in the books of M/s Prime Ispat Limited. In relation to the same it is humbly submitted that, there is no pleadings/ grounds/ reference made to the above statements of Shri Vimal Agrawal and Shri Vinod Agrawal in any of the order dated 30.12.2011 passed by the AO, order dated 31.05.2012 passed by the learned CIT(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustified in ignoring the report of the forensic expert and recording a finding that Shri Anand Agrawal was not the benamidar of the assessee Shri B.L. Agrawal?" 15. Thereafter, the matter was listed on 12.03.2018, 04.04.2018, 08.05.2018, 17.12.2019, 14.02.2020, 17.03.2025, 18.03.2025, 25.03.2025. The matter was listed thereafter on 01.04.2025 for final hearing when a query was put by this Court to the learned counsel appearing for the parties as to whether there were any other criminal cases pending against the respondent/ Assessee. In order to answer the said queries, the matter was taken up today. 16. A covering memo has been filed by the learned counsel for the respondent/Assessee wherein a chart has been enclosed which states that there are three cases pending against the respondent filed by the CBI and one case is registered by the Economic Offence Wing and one case has been registered by the Enforcement Directorate which are also pending before the various Courts. Mr. Mishra has also provided a list of cases pending before the various Courts arising out of the search and seizure made by the Income Tax Department wherein one case relates to the offence registered by the CBI, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mes of various individuals, enabling the conversion and concealment of funds. These admissions should have been carefully considered, as they directly implicate the Assessee in a deliberate effort to evade tax obligations through illegal means. The learned Tribunal also erred by not acknowledging the full scope of the fund circulation scheme, which was exposed during the search at the premises of CA Shri Sunil Kumar Agrawal. The AO recorded a statement from Shri Sunil Kumar Agrawal, who confirmed that he was involved in the capital building activities for M/s Prime Ispat Limited and that the funds in question were attributable to the respondent/assessee, Shri Babulal Agrawal. Shri Sunil Kumar Agrawal also stated that he was receiving a 2% commission for facilitating these transactions. Despite the clear implication of this statement, the respondent/assessee failed to provide any satisfactory explanation regarding these assertions, merely claiming that the CA had retracted his statement. In the absence of a credible explanation, the AO appears to have rightfully added these funds to the Assessee's income under sections 69-A and 69-C of the Income Tax Act, 1961. The scheme of fun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent/Assessee and rejected the appeal filed by the appellant/Revenue is that earlier, Shri Sunil Kumar Agrawal has stated that the money belonged to the respondent/assessee and he was doing this activity on 2% commission basis. Shri Sunil Kumar Agrawal has later retracted his statement and has given an affidavit that his earlier statement was under duress. However, it is worthwhile to note that the learned Tribunal as well as the CIT(A) have not taken into account the statements of Shri Vimal Agrawal and Shri Vinod Agrawal who were the Directors in the shell Companies through which huge sum was introduced in the garb of share capital and share premium in the books of M/s Prime Ispat Limited. The statement of these two individuals ought to have been considered in proper perspective before arriving at any finding. Shri Vinod Agrawal and Vimal Agrawal have accepted in their statement that on the direction of Shri Pawan Agrawal, Shri Ashok Agrawal and the appellant, 13 shell Companies and other firms were created as these persons wanted to convert their black money into white without paying any tax. Even as per the learned counsel for the parties, the CBI, ED and EOW has registered var ..... X X X X Extracts X X X X X X X X Extracts X X X X
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