Addition on protective basis not justified when AO already taxed on substantive basis

ACIT Vs Siyaram Gupta (HUF) (ITAT Allahabad)

Conclusion: Once the substantive assessment in the case of Mr. Siya Ram Gupta was confirmed , the protective assessment had no independent standing but dependent on the final outcome of the substantive assessment. CIT(A) was right for deleting the addition on protective basis on the ground that AO had already taxed the same in the hands of Mr. Siya Ram Gupta on substantive basis.

Held: Assessee for assessment year 2003-04 was assessed on protective basis to the tune of Rs. 70,000/- by AO, vide assessment order dated 29.03.2006 passed u/s 143(3), as against returned income of Rs. 60,000/-. The additions on the substantive basis were made by AO in the hands of Shri Siya Ram Gupta , vide assessment order dated 29.03.2006 passed by AO u/s 143(3). The said Shri Siya Ram Gupta filed first appeal with CIT(A) against the assessment order dated 29.03.2006 passed by AO u/s 143(3) which appeal stood dismissed by CIT(A) on the ground that the income held to be assessed in the hands of assessee by AO on protective basis did not stand any more, as the same was brought to tax in the hands of Sri Siya Ram Gupta on substantive basis , and hence the additions on protective basis made by AO in the hands of assessee did not survive. It was held that assessee never raised the ground of appeal before CIT(A) that the addition be sustained in the hands of Mr. Siya Ram Gupta, as Shri Siya Ram Gupta owned up the amounts of income of other family members as his income and no challenge was made by assesse before CIT(A) for deleting the addition on protective basis on the grounds that the AO had already taxed the same in the hands of Mr. Siya Ram Gupta on substantive basis , and thus there was no occasion before CIT(A) to have allowed the appeal of assessee. Thus, CIT(A) dismissed the appeals of the assessee because the same had become infructuous, because the substantive additions made of the income of the assessee in the hands of Mr. Siya Ram Gupta stood confirmed in the hands of Shri Siya Ram Gupta and in view of that protective addition of the same amount of income in the hands of the assessee would not stand. Once the substantive assessment in the case of Mr. Siya Ram Gupta was confirmed , the protective assessment had no independent standing but dependent on the final outcome of the substantive assessment. Thus, to that extent, order of Tribunal stand modified and MA filed by Revenue was allowed.

FULL TEXT OF THE ITAT JUDGEMENT

These are batch of fifteen Miscellaneous Applications(MA) , out of which twelve MA’s bearing No. 05-16/Alld/2012 are filed by Revenue , while three MA’s bearing Nos. 48-50/Alld/2016 are filed by assessee namely Mr. Siya Ram Gupta. First, we will take up Revenue’s MA No. 09/Alld/2012.This Miscellaneous application (MA) bearing number 09/Alld./2012 arising out of ITA no. 325/Alld/2008 for assessment year (ay) : 2003-04 was filed by Revenue with Income Tax Appellate Tribunal, Allahabad( herein after called “ the tribunal” ) u/s 254(2) of the Income-tax Act,1961 (hereinafter called “the Act”) , on 11.06.2012 , seeking to rectify an mistake apparent from record which as per Revenue has crept in the appellate order dated 17.03.2009 passed by tribunal. This Misc. Application was filed within the time as was then available during relevant time as provided under Section 254(2) of the Act , before its amendment by Finance Act, 2016 w.e.f. 01.06.2016. The main grievance of the Revenue in this MA is that the tribunal erred in holding that learned Commissioner of Income-tax(Appeals) while adjudicating appeal of the assessee has erroneously held that the appeal of the assessee stand dismissed , while as per Revenue the tribunal further erroneously held that the learned CIT(A) ought to have allowed the appeal of the assessee and thus reversing the order of ld. CIT(A), which as per Revenue , the ld. CIT(A) had rightly dismissed the appeal of the assessee. Thus, the appeal of the assessee filed with tribunal stood allowed by tribunal , vide its appellate order dated 17.03.2009. Before proceeding further , it will be relevant at this stage to reproduce the decision of the tribunal in the case of the assessee, vide appellate order dated 17.03.2009 in ITA no. 325/Alld/2008 for ay: 2003-04, wherein tribunal held as under:

“4. ………………… After discussions with learned DR, we notice that learned CIT(A) upheld assessment on substantive basis in the case of Shri Siya Ram Gupta in appeal No. 221/DCIT/CC/Alld dated 21/2/08 and further held that addition made on protective basis in all these cases did not stand any more. However, he has dismissed the appeal of the assessee.

5. After hearing learned D.R. , we hold that once learned CIT(A) has held that assessment can be made on substantive basis in the case of Shri Siya Ram Gupta and not on protective basis in the case of present assesses, then there was no reason for him to dismiss the appeal of the assessee. So, he ought to have allowed the appeal. It was also not pointed out by learned D.R. as to whether any rectification has been carried out by learned CIT(A) in his order. It was also not informed as to whether department has filed any cross appeal or any cross objections in these cases. Accordingly, we reverse the final order of the learned CIT(A) wherein he has dismissed the appeal of the assessee. The appeal of the assessee are allowed. In the result , all the appeals are allowed .”

1.2 It will be relevant at this stage to reproduce the decision of learned CIT(A) in appellate order dated 21.02.2008 passed in the case of the assessee for ay : 2003-04, wherein ld. CIT(A) held as under:

“ 2. The only effective ground of appeal is against the addition of Rs. 10,000/- on protective basis. This addition has already been upheld on substantive basis in the case of Siya Ram Gupta in A.No.221/DCIT/CC/Alld/06-07 dated 21.02.2008 for the Asst. Year 2003-04, the entire income of the assessee is assessed on a substantive basis in the hands of Shri Siya Ram Gupta therefore, the addition on protective basis does not stand any more.

In result, the appeal is dismissed.”

1.3 Briefly stated that income of the assessee for ay: 2003-04 was assessed on protective basis to the tune of Rs. 70,000/- by AO , vide assessment order dated 29.03.2006 passed u/s 143(3) of the 1961 Act , as against returned income of Rs. 60,000/-. The additions on the substantive basis were made by AO in the hands of Shri Siya Ram Gupta , vide assessment order dated 29.03.2006 passed by AO u/s 143(3) of the 1961 Act. The said Shri Siya Ram Gupta filed first appeal with ld. CIT(A) against the assessment order dated 29.03.2006 passed by AO u/s 143(3) of the 1961 Act, which appeal stood dismissed by ld. CIT(A) vide appellate order dated 21.02.2008 in Appeal No. 221/DCIT/CC/Alld/06-07 , by holding as under:

“3. The third and fourth grounds of appeal is against the inclusion of income of the following members in the hands of the appellant:

3.1 The AO has made the following additions in the assessment order in the hands of the following persons, the amount is shown against their names:

3.2 The appellant has objected to the inclusion of income of the above mentioned persons in the hands of the appellant but has not object to the additions of the said income in the individual hands of the assessee. This contention of the appellant is not acceptable because for the reasons mentioned hereunder, the entire income of the above mentioned persons has been held to be rightly clubbed in the hands of the appellant.

3.3 A Search and Seizure operation was carried out at the residential cum business premises of the appellant on 23.10.2002. In the block assessment order passed on 29^th March, 2004 for the block period 01.04.1995 to 20.03.2002, the Assessing Officer, Central Circle , Allahabad made the following observation:

“Before the search and seizure operation returns were filed in the names of different family members disclosing source of income as under:

Except that of Km. Sumedha Gupta , all other persons have source of income from pawning , money lending and sarraffa and during the course of search and seizure operation nothing could be found which may say that they have their separate accounts, separate stock and which may indicate that they were separately carrying out their business as discussed by them, Km. Sumedha Gupta has disclosed her income from knitting and sewing but no evidence for the same could be found during the course of search and seizure operation that she was separately carrying out knitting and sewing.

During the course of regular assessment proceedings in the case of Kumari Sumedha Gupta she has submitted that she has sold out machines etc employed for her business therefore , no evidence regarding that could be found during the course of search and seizure operation. In the regular assessment proceedings fir A.Y. 2001-02 in all the cases the assessee has submitted that all the undisclosed income for the block period over and above the returned income of above entities should be taxes in his hands and he has offered Rs. 20,00,000/- as undisclosed income in the block assessment.

It was required from the assessee to explain as to why it should not be considered that the business of sarraffa , money lending and pawning during the block period has been carried out by him and returns filed in the names of different family members is nothing but diversion of income and all the income disclosed in the names of different entities mentioned above is that of his.

In the written submission dated 24.03.2004 the assessee has not submitted anything about the above question and therefore, it is presumed that the assessee has accepted the preposition and so all the income/investment disclosed by him in the hands of Satya Narayan Gupta (Individual), Satya Narayan Gupta(HUF), Smt. Munni Devi , Sri Siyaram Gupta(HUF) and Kumari Sumedha Gupta will be treated as income of the assessee and clubbed together.”

3.2 Thus from the above observation of the AO it is clear that the appellant has himself accepted that the entire income of the family members is nothing but the income of the appellant. Further, it is also to be noted that the entire undisclosed income which was found during search was also surrendered in the hands of the appellant . Thus this stand of the AO that the income of the above mentioned persons is to be clubbed in the hands of the appellant is found to be correct and the same is upheld.”

1.4 Thus, it could be seen from the appellate order of ld. CIT(A) in the case of Siya Ram Gupta that the income of the assessee namely Siya Ram Gupta(HUF) was upheld to be brought to tax in the hands of Shri Siya Ram Gupta as he has admitted that income of the assessee belongs to him and entire undisclosed income found during search was also surrendered in the hands of Siya Ram Gupta. Since , the income of the assessee was held to be taxable in the hands of Shri Siya Ram Gupta on substantive basis by ld. CIT(A) , hence based on that the ld. CIT(A) while disposing of appeal of the assessee held that since substantive additions in the hands of Mr. Siya Ram Gupta is already upheld by ld. CIT(A), the additions to income on protective basis in the hands of the assessee is not sustainable and hence the appeal of the assessee stood dismissed by ld. CIT(A). The tribunal while adjudicating appeal of the assessee is of the view that by deleting the additions to income on protective basis in the hands of the assessee by ld. CIT(A) while adjudicating appeal of the assessee on the grounds that similar additions stood affirmed on substantive basis in the case of Mr. Siya Ram Gupta, has infact allowed the appeal of the assessee as the additions stood deleted and the tribunal was pleased to reverse the final order of ld. CIT(A), wherein the ld. CIT(A) on its part has dismissed the appeal of the assessee. The decision of ld. CIT(A) and also of the tribunal in the case of the assessee is already reproduced by us on preceding para’s of this order. We have heard ld. CIT-DR in details through video conferencing through virtual court who drew our attention to various orders passed by authorities, while none appeared for the assessee when this appeal was called for hearing before the Bench. In order to adjudicate the concerns raise in this MA by Revenue, it will be relevant at this stage to reproduce the grounds of appeal raised by assessee before learned CIT(A), which are reproduced hereunder:

1. That the learned Assessing Officer was wrong in law & on facts in making the assessment on protective basis & enhancing the returned income by Rs. 10,000/-.

2. That the learned A.O. has failed to appreciate that the assessee is an old income tax assessee and upto A.Y. 2001-02, the income shown was accepted as belonging to the assessee and only in A.Y.2002-03, such income was included in the case of Shri Siya Ram under the provisions of Section 158BB(1)(d).

3. That the inclusion of income as made in A.Y.2002-03 has been excluded by the learned CIT(A) in the appeal of SIya Ram Gupta against Block Assessment.

4. That the provisions of section U/S 158BB(1)(d) were not applicable during the year under consideration.

5. That the learned A.O. was also unjustified in enhancing the income by Rs. 10,000/-

6. In any case & without prejudice to the above grounds, the income assessed is much too high & excessive.

7. That the order of the learned Assessing Officer is against law, facts & principles of natural justice.”

1.5 On careful perusal of the above grounds of appeal filed by assessee before ld. CIT(A) and the appellate order passed by ld. CIT(A), it is seen that the ld. CIT(A) dismissed the appeal of the assessee on the grounds that the income held to be assessed in the hands of the assessee by the AO on protective basis does not stand any more , as the same is brought to tax in the hands of Sri Siya Ram Gupta on substantive basis , and hence the additions on protective basis made by AO in the hands of the assessee does not survive . To proceed further to address grievance of Revenue in this MA to ascertain whether the ld. CIT(A) was right in dismissing the appeal of the assessee or not , it is important to see the grounds of appeal raised by assessee in its appeal filed with ld. CIT(A) , which grounds of appeal are already reproduced above in this order in para 1.4.

a) Vide Ground of appeal No. 1 raised by assesse before ld. CIT(A), the assessee is claiming that the AO erred in making addition in the hands of the assessee on protective basis. The AO had made addition on substantive basis in the hands of Mr. Siya Ram Gupta , while additions on protective basis were made in the hands of the assessee. This position is upheld by ld. CIT(A), while ld. CIT(A) further held that once addition is sustained in the hands of Mr. Siya Ram Gupta on substantive basis, the addition in the hands of the assessee on protective basis does not sustain any more. Thus, the ld. CIT(A) was right in impliedly dismissing this ground of appeal raised by assessee, although he has not expressly dismissed the grounds separately, as the stand of AO to make substantive addition in the hands of Mr. Siya Ram Gupta was upheld by ld. CIT(A).

b) Vide Ground of appeal No. 2 raised by assesse before ld. CIT(A), the assessee is claiming that income needs to be assessed in the hands of the assesse as was done in earlier years upto ay:2001-02. This stand was implicitly rejected by ld. CIT(A) while affirming the addition in the hands of Mr. Siya Ram Gupta on substantive basis. Thus, the ld. CIT(A) was right in impliedly dismissing this ground of appeal raised by the assessee, although he has not expressly dismissed the grounds separately.

c) Vide Ground of appeal no. 3 raised by assesse before ld. CIT(A), the assesse is claiming that the inclusion of the income so assessed for ay: 2002-03 was excluded in the appeal of Shri Siya Ram Gupta against Block Assessment. This ground is not relevant so far as this appeal of the assesse is concerned as no income is finally held to be assessed in the hands of the assesse and more-over presently the ld. CIT(A) was seized of the appeal against assessment framed u/s 143(3) of the 1961 Act and not appeal against Block Assessment. Thus, the ld. CIT(A) was right in impliedly dismissing this ground of appeal raised by the assessee, although he has not expressly dismissed the grounds separately.

d) Vide Ground of Appeal No. 4 raised by assesse before ld. CIT(A), the assesse had claimed that provisions of Section 158BB(1)(d) were not applicable for the year under consideration. This ground is not relevant as the assessment which is under challenge was not Block Assessment framed u/s 158BC , but the normal assessment framed u/s 143(3) of the 1961 Act. Thus, the ld. CIT(A) was right in impliedly dismissing this ground of appeal raised by the assessee, although he has not expressly dismissed the grounds separately.

e) The Ground of appeal No. 5 raised by assesse is with respect to challenge in making addition of Rs. 10,000/- to the returned income of the assesse. The addition was made by AO on protective basis , as Mr. Siya Ram Gupta has himself accepted that the addition be sustained in his hands and hence addition was made on substantive basis in the hands of Mr. Siya Ram Gupta, which was upheld by ld. CIT(A). Thus, the ld. CIT(A) was right in impliedly dismissing this ground of appeal raised by the assessee, although he has not expressly dismissed the grounds separately.

f) Ground of appeals No. 6 and 7 are general in nature. Thus, the ld. CIT(A) was right in impliedly dismissing these ground of appeal raised by the assessee, although he has not expressly dismissed the grounds separately.

1.6 It is also observed that the assessee never raised the ground of appeal before ld. CIT(A) that the addition be sustained in the hands of Mr. Siya Ram Gupta , as Shri Siya Ram Gupta owned up the amounts of income of other family members as his income and no challenge was made by assesse before ld. CIT(A) for deleting the addition on protective basis on the grounds that the AO has already taxed the same in the hands of Mr. Siya Ram Gupta on substantive basis , and thus there was no occasion before ld. CIT(A) to have allowed the appeal of the assessee. Thus, in fact ld. CIT(A) dismissed the appeals of the assessee because the same had become infructuous, because the substantive additions made of the income of the assessee in the hands of Mr. Siya Ram Gupta stood confirmed in the hands of Shri Siya Ram Gupta and in view of that protective addition of the same amount of income in the hands of the assessee would not stand. Once the substantive assessment in the case of Mr. Siya Ram Gupta is confirmed , the protective assessment has no independent standing but dependent on the final outcome of the substantive assessment. Thus, to that extent , order of the tribunal stand modified and MA filed by Revenue is allowed .We order accordingly.

1.7 . In the result, M.A. No. 09/Alld/2012 arising out of ITA No. 325/Alld/2008 filed by Revenue for assessment year 2003-04, is allowed.

MA No. 05/Alld./2012 arising out of ITA No. 319/Alld/2008 for ay: 2003-04-Shri Siya Ram Gupta L/H of Shri Satya Narain Gupta

2. Since facts are identical in this MA, our decision in MA no. 09/Alld/2012 shall apply mutatis mutandis to the MA No. 05/Alld/2012 arising out of ITA No. 319/Alld/2008 for ay: 2003-04. We order accordingly.

2.2 In the result, M.A. No. 05/Alld/2012 arising out of ITA No. 319/Alld/2008 filed by Revenue for assessment year 2003-04, is allowed.

MA No. 06/Alld./2012 arising out of ITA No. 320/Alld/2008 for ay: 2004-05-Shri Siya Ram Gupta L/H of Shri Satya Narain Gupta

3. Since facts are identical in this MA, our decision in MA no. 09/Alld/2012 shall apply mutatis mutandis to the MA No. 06/Alld/2012 arising out of ITA No. 320/Alld/2008 for ay: 2004-05. We order accordingly.

3.2 In the result, M.A. No. 06/Alld/2012 arising out of ITA No. 320/Alld/2008 filed by Revenue for assessment year 2004-05, is allowed.

MA No. 07/Alld./2012 arising out of ITA No. 329/Alld/2008 for ay: 2003-04-M/s. Siya Ram Gupta,Firm

4. Since facts are identical in this MA, our decision in MA no. 09/Alld/2012 shall apply mutatis mutandis to the MA No. 07/Alld/2012 arising out of ITA No. 329/Alld/2008 for ay: 2003-04. We order accordingly.

4.2 In the result, M.A. No. 07/Alld/2012 arising out of ITA No. 329/Alld/2008 filed by Revenue for assessment year 2003-04, is allowed.

MA No. 08/Alld./2012 arising out of ITA No. 330/Alld/2008 for ay: 2004-05-M/s. Siya Ram Gupta,Firm

5. Since facts are identical in this MA, our decision in MA no. 09/Alld/2012 shall apply mutatis mutandis to the MA No. 08/Alld/2012 arising out of ITA No. 330/Alld/2008 for ay: 2004-05. We order accordingly.

5.2 In the result, M.A. No. 08/Alld/2012 arising out of ITA No. 330/Alld/2008 filed by Revenue for assessment year 2004-05, is allowed.

MA No. 10/Alld./2012 arising out of ITA No. 326/Alld/2008 for ay: 2004-05-M/s. Siya Ram Gupta(HUF)

6. Since facts are identical in this MA, our decision in MA no. 09/Alld/2012 shall apply mutatis mutandis to the MA No. 10/Alld/2012 arising out of ITA No. 326/Alld/2008 for ay: 2004-05. We order accordingly.

6.2 In the result, M.A. No. 10/Alld/2012 arising out of ITA No. 326/Alld/2008 filed by Revenue for assessment year 2004-05, is allowed.

MA No. 11/Alld./2012 arising out of ITA No. 321/Alld/2008 for ay: 2003-04-Ms. Sumedha Gupta

7. Since facts are identical in this MA, our decision in MA no. 09/Alld/2012 shall apply mutatis mutandis to the MA No. 11/Alld/2012 arising out of ITA No. 321/Alld/2008 for ay: 2003-04. We order accordingly.

7.2 In the result, M.A. No. 11/Alld/2012 arising out of ITA No. 321/Alld/2008 filed by Revenue for assessment year 2003-04, is allowed.

MA No. 12/Alld./2012 arising out of ITA No. 322/Alld/2008 for ay: 2004-05-Ms. Sumedha Gupta

8. Since facts are identical in this MA, our decision in MA no. 09/Alld/2012 shall apply mutatis mutandis to the MA No. 12/Alld/2012 arising out of ITA No. 322/Alld/2008 for ay: 2004-05. We order accordingly.

8.2 In the result, M.A. No. 12/Alld/2012 arising out of ITA No. 322/Alld/2008 filed by Revenue for assessment year 2004-05, is allowed.

MA No. 13/Alld./2012 arising out of ITA No. 323/Alld/2008 for ay: 2003-04-Mrs. Munni Devi

9. Since facts are identical in this MA, our decision in MA no. 09/Alld/2012 shall apply mutatis mutandis to the MA No. 13/Alld/2012 arising out of ITA No. 323/Alld/2008 for ay: 2003-04. We order accordingly.

9.2  In the result, M.A. No. 13/Alld/2012 arising out of ITA No. 323/Alld/2008 filed by Revenue for assessment year 2003-04, is allowed.

MA No. 14/Alld./2012 arising out of ITA No. 324/Alld/2008 for ay: 2004-05-Mrs. Munni Devi

10. Since facts are identical in this MA, our decision in MA no. 09/Alld/2012 shall apply mutatis mutandis to the MA No. 14/Alld/2012 arising out of ITA No. 324/Alld/2008 for ay: 2004-05. We order accordingly.

10.2 . In the result, M.A. No. 14/Alld/2012 arising out of ITA No. 324/Alld/2008 filed by Revenue for assessment year 2004-05, is allowed.

MA No. 15/Alld./2012 arising out of ITA No. 327/Alld/2008 for ay: 2003-04-M/s Satya Narain Gupta(HUF)

11. Since facts are identical in this MA, our decision in MA no. 09/Alld/2012 shall apply mutatis mutandis to the MA No. 15/Alld/2012 arising out of ITA No. 327/Alld/2008 for ay: 2003-04. We order accordingly.

11.2 In the result, M.A. No. 15/Alld/2012 arising out of ITA No. 327/Alld/2008 filed by Revenue for assessment year 2003-04, is allowed.

MA No. 16/Alld./2012 arising out of ITA No. 328/Alld/2008 for ay: 2004-05-M/s Satya Narain Gupta(HUF)

12. Since facts are identical in this MA, our decision in MA no. 09/Alld/2012 shall apply mutatis mutandis to the MA No. 16/Alld/2012 arising out of ITA No. 328/Alld/2008 for ay: 2004-05. We order accordingly.

12.2 In the result, M.A. No. 16/Alld/2012 arising out of ITA No. 328/Alld/2008 filed by Revenue for assessment year 2004-05, is allowed.

13. In the result, all the twelve MA’s filed by Revenue from M.A. No.05 to 16/Alld/2008 , stood allowed.

MA No. 48-50/Alld./2016 arising out of ITA No. 317-318/Alld/2008 for ay:  2003-04 & 2004-05 & ITA No. 19/Alld/2009 for ay: 2005-06- Mr. Siya Ram Gupta

14. These are three Miscellaneous applications (MA) bearing number 48-50/Alld./2016 arising out of ITA no. 317-318/Alld/2008 & 19/Alld/2009 for assessment year (ay) : 2003-04 to 2005-06 are filed by Assessee namely Mr. Siya Ram Gupta with tribunal u/s 254(2) of the 1961 Act , on 07.11.2016 , seeking to rectify an mistake apparent from record which as per assessee has crept in the common appellate order dated 21.04.2016 passed by tribunal in ITA no. 317-318/Alld/2008 and 19/Alld/2009, for ay:2003-04 to 2005-06. The main grievance of the assessee in these MA is that the tribunal has vide its earlier orders dated 17.03.2009 and 31.08.2009 had already held that the income of the family members of the assesse is to be brought to tax in their respective hands on substantive basis and hence accordingly income of the family members for the impugned assessment years cannot be brought to tax in the hands of the assessee . The ld. CIT-DR made detailed submissions before us , while none appeared for the assesse. We have already dealt with MA’s filed by Revenue with respect to the appellate orders passed by tribunal dated 17.03.2009 in the cases of respective family members/entities in MA No. 05-16/Alld/2012 for ay: 2003-04 and 2004-05 in the preceding para’s of this order, wherein Revenue MA’s were allowed by us. Our disposal of aforesaid MA’s No. 05-16/Alld/2012 in favour of Revenue has direct bearing on these MA’s Nos. 48-50/Alld/2016 filed by assesse for ay: 2003-04 to 2004-05 and our orders in aforesaid MA’s filed by Revenue should be read in conjunction with our orders in these three MA’s filed by Mr. Siya Ram Gupta, the assessee . The tribunal while disposing of the appeal of the assessee for ay: 2003-04 to 2005-06, vide orders dated 21.04.2016 has rejected the contention of the assessee that the tribunal vide orders dated 17.03.2009 and 31.08.2009 has held that the income of the family members are to be assessed in their respective hands and not in the hands of the assessee. In-fact the tribunal while passing orders in the hands of respective family members/entities has held that their income has to be assessed in the hands of the assessee namely Mr. Siya Ram Gupta. The said order dated 17.03.2009 by tribunal in the case of respective family members/entities is reproduced in the preceding para’s of this order. The decision of tribunal (SMC)dated 21.04.2016 in the case of the assessee is reproduced hereunder:

“3.  I heard the rival submissions and carefully considered the same alongwith orders of the tax authorities below. I have also gone through the order of this Tribunal dated 31.08.2009 and 17.03.2009. I noted that the Tribunal vide its order dated 31.08.2009 in ITA Nos. 20 to 24 under para-5 held as under:

“ On consideration of the facts , I am of the view that the ld. CIT(A) was not justified in dismissing the appeals of the assesse. Once the ld. CIT(A) held that entire income of the assesse shall have to be assessed on substantive basis in the case of Siyaram Gupta and that protective assessment in the hands of the assesse cannot stand . Therefore, the appeals of the assesse shall have to be allowed. The I.T.A.T. , Allahabad Bench , vide order dated 17t^h March , 2009(supra) , accordingly, passed the order accordingly. By following the same order and considering the above discussion , I reverse the final outcome of the order of the CIT(Appeals), whereby the appeals of the assesse have been dismissed. Accordingly, all the appeals of the assesse are allowed.”

4. In view of the aforesaid finding of the Tribunal, this income has not been assessed on the substantive basis in the hands of family members of the assesse as contended by the learned A.R. . The Tribunal has deleted the addition. I, therefore, respectfully following the decision of the Tribunal , I do not find any merit in the grounds taken by the assesse. The Assessing Officer in my opinion has rightly assessed in the hands of the assesse in each of the assessment years. I, accordingly, dismissed the ground of appeal of the assesse in all the assessment years.”

14.2 Thus, as could be seen that tribunal vide its orders dated 21.04.2016 in the case of the assessee for ay: 2003-04 to 2005-06 , has held that income of the family members has to be assessed in the hands of the assessee namely Mr. Siya Ram Gupta, and contention of the counsel of the assessee that tribunal vide its earlier orders dated 17.03.2009 and 31.08.2009 has held that income of the family members of the assessee has to be assessed in their respective hands , was rejected by tribunal in aforesaid order dated 21.04.2016 and the appeal of the assessee was dismissed by tribunal . Now, once again similar contentions are raised in these MA’s filed by assessee that tribunal while earlier orders dated 17.03.2009 and 31.08.2009 has directed to assesss income of the respective family members/entities in their respective hands and hence now the income of these family members/entities cannot be brought to tax in the hands of the assessee which will lead to doubly taxing the same income, has no valid justification . We donot find any merit in the contention of the assessee in these three MA’s , which stand rejected. The tribunal vide its appellate order dated 21.04.2016 for ay: 2003-04 to 2005-06 has rightly held that income of family members be brought to tax in the hands of the assessee and consequently appeal of the assessee was rightly dismissed by tribunal vide its orders dated 21.04.2016. Thus, we dismiss all these three MA’s bearing Nos. MA No. 48—50/Alld/2016 filed by assessee , for ay: 2003-04 to 2005-06. We order accordingly.

14.3 . In the result, M.A. Nos. 48-50/Alld/2016 arising out of ITA No. 317-318/Alld/2008 and 19/Alld./2009 filed by assessee namely Mr. Siya Ram Gupta for assessment year 2003-04 to 2005-06 , are dismissed.

15. In the result, all the twelve MA’s filed by Revenue from M.A. No.05 to 16/Alld/2008 , stood allowed and M.A. Nos. 48-50/Alld/2016 arising out of ITA No. 317-318/Alld/2008 and 19/Alld./2009 filed by assessee namely Mr. Siya Ram Gupta for assessment year 2003-04 to 2005-06 , are dismissed.

Order pronounced in the open Court on 15/04/2021 through video conferencing.