Shyam Sunder Jindal Vs. Asst. CIT (ITAT Delhi)
In the present case, no original document was brought on record and also not confronted to the assessee. The assessing officer also admitted in para 11 of the assessment order that a copy of bank statement for a period from November 2005 to February 2007 was provided to the Authorized Representative of the assessee on 21-11-2014 but nowhere he stated that the original document/evidence was confronted to the assessee. It is also noticed from the translation version of the said information reproduced by the assessing officer at pages no. 3 to 10 of the assessment order dated 27-2-2015 that the said document/evidence was not signed by any authority and did not demonstrate in any manner that the same was a photocopy of bank statement, it was also not on the letter head of any bank, neither it was stamped by any bank nor it bore signature of any official of any bank. Therefore, it is not clear how and in what manner the said document was considered as the bank statement of HSBC Bank, Geneva, particularly when there was no indication as to the branch and country to which the alleged bank statement related. In the present case, the assessing officer although stated that the documents had been obtained under DTAA but nowhere it was mentioned that under which DTAA those documents had been obtained. If the aforesaid documents had been received under DTAA, nothing is brought on record to substantiate that any letter was issued by the competent authority of the relevant country from which the aforesaid documents were obtained, the assessee also asked for the same but nothing was provided to the assessee. Therefore, in the absence of all the relevant documents/evidences on record, it is not possible to come to a just conclusion relating to the authenticity of the document relied by the assessing officer or to the facts as to whether these documents pertained to the assessee.
In the present case also the documents relied by the assessing officer are the copies of the copies which did not have any signature of bank official or name of the bank or the place or the country were the branch was situated. The assessing officer himself admitted in para 6 of the assessment order that the requisite information from the Swiss Banking Authority had not been received.
We, therefore, considering the totality of the facts as discussed herein above, set aside the impugned order and restore the matter back to the file of the assessing officer to be adjudicated afresh in accordance with law after providing due and reasonable opportunity of being heard and by confronting the assessee with the documents which relates to him.
Full Text of the ITAT Order is as follows:-
This is an appeal by the assessee against the order dated 24-8-2016 of learned Commissioner (Appeals)-30, New Delhi
2. Following grounds have been raised in this appeal :–
“1. That the Commissioner (Appeals) erred on the facts and in law, in not holding that the assessment order dated 27-2-2015 passed by the assessing officer under section 153A of the Income Tax Act, 1961 (‘the Act”) was bad in law and void-ab-intio.
1.1 That the Commissioner (Appeals) erred on the facts and in law in not appreciating that the above assessment order passed under section 153A is barred by limitation as prescribed in section 153B(1)(viii) of the Act.
1.2 That the Commissioner (Appeals) erred on the facts and in law in not appreciating that the assessing officer passed the assessment order in undue haste and in gross violation of principles of natural justice.
Without prejudice:
That the Commissioner (Appeals) erred on facts and in law in confirming addition of Rs. 69,07,414 (US$ 155923.57 @ Rs. 44.30), being the peak balance lying in some account of HSBC Bank, Geneva made by the assessing officer alleging that:–
(a) the above bank account though belongs to the appellant was not disclosed either in the return of income or during the course of assessment proceedings; and
(b) the appellant failed to furnish explanations/documents, etc. in respect of the deposits lying in the above bank account.
2.1 That the Commissioner (Appeals) erred on facts and in law in not appreciating that the aforesaid addition has been made by the assessing officer de hors any material found/seized during the course of search in the premises of the appellant and is not sustainable in law.
2.2 That the Commissioner (Appeals)/assessing officer erred on facts and in law in drawing adverse inference on the basis of some general/vague particulars appearing in some unsigned/undated/unauthenticated loose photocopied sheets of papers, whose source is also not known/reliable/credible, not appreciating that the same does not constitute evidence in the eyes of law.
2.3 That the Commissioner (Appeals) erred on facts and in law in confirming the above addition without appreciating that the assessing officer has admitted in para 6 of the assessment order that authentic information/communication regarding the alleged foreign bank account was still awaited from the Swiss Authorities.
2.4 That the Commissioner (Appeals) erred on facts and in law in not appreciating that — (a) the above alleged foreign bank account did not belong to the appellant; (b) none of the deposits, as alleged, related to the appellant; and (c) no transaction was made by the appellant, and that the above addition made in the hands of the appellant is without any evidence or basis.
2.5 That the Commissioner (Appeals)/assessing officer erred on facts and in law in alleging that the appellant had intentionally concealed vital information by not signing the consent/declaration form and drawing adverse inference therefrom, without appreciating that the question of signing such form did not arise as the appellant denied having any foreign bank account in the first place.
The appellant craves leave to add to, alter, amend or vary the aforesaid grounds of appeal at or before the time of hearing.”
3. From the aforesaid grounds, it would be clear that the assessee had challenged the jurisdiction of the assessing officer in passing the assessment order under section 153A of the Income Tax Act, 1961 (hereinafter referred to as the Act) and sustenance of the addition of Rs. 69,07,414 made by the assessing officer.
4. Facts of the case in brief are that the assessee filed the original return of income on 29-7-2006 declaring an income of Rs. 7,05,730 which was processed as such on 20-11-2006. Later on, the case was selected for scrutiny and the assessment was framed under section 143(3) of the Act on 8-10-2008. Subsequently, a search and seizure operation under section 132 of the Act was conducted on various business premises of Shri V.C. Jindal Group of cases as well as the residential premises including the residence of the assessee at 12A, Vasant Kunj, Pocket-D, New Delhi on 14-11-2011. The assessing officer issued the notice under section 153A of the Act on 19-10-2012. In response to the said notice, the assessee filed the return of income declaring an income of Rs. 7,05,730. The said income was declared on account of professional fee and income from other sources being interest on dividend and also included income of minor son Shri Bhavesh Jindal in the form of interest income and dividend income.
5. During the course of assessment proceedings, the assessing officer observed that as per the information available with his office, the assessee maintained an account with HSBC Bank, Geneva, Switzerland. A reference was made to the appropriate authority for exchange of information. The assessing officer reproduced translation in English of the said information which was available in French in para 4.1 of the assessment order dated 27-2-2015, for the cost of repetition, the same is not reproduced herein. The assessing officer mentioned that the assessee was maintaining a bank account with HSBC Bank, Geneva, Switzerland with BUP No. 9070145843 and this account remained undisclosed to the Income Tax Department and that the assessee had not furnished a copy of complete statement of this bank account. The assessing officer also mentioned that the requisite information from Swiss Banking Authorities had not been received. At the same time, he stated that as per the bank statement with his office, the credit balance in this account was US$155507.80 at the end of March 2006 and US$152027.93 at the end of February, 2007. The peak balance was US$156740.81 in the month of September 2006 and maximum balance in this account for the financial year 2005-06 was US$155923.57 in February 2006. The assessing officer asked the assessee to furnish the complete statement, the details and particulars of HSBC Bank account and observed that the assessee had not furnished bank account statement or consent waiver form to obtain statement, in spite of various opportunities given to him. The assessing officer pointed out that during the search proceedings, statement of the assessee was recorded under section 132(4) of the Act and he denied of having any such bank account. He also mentioned in para 9 of the assessment order that the assessee during the course of assessment proceedings on queries made by notices or letters did not accept of having bank account with HSBC Bank, Geneva, Switzerland.
The assessing officer highlighted the facts of the aforesaid bank account with HSBC Bank, Geneva, Switzerland with BUP No. 9070145843 as under :–
