Case Law Details
Facts of the case
The assessee in the instant case was an individual and proprietor of M/s. S. Chains engaged in the business of job work in gold ornaments. M/s. S.D.D. Agencies was the C&F Agent of M/s. Dhariwal Industries Ltd. in the State of Maharashtra for their Gutkha and Pan Masala business. A search and seizure action on the premises of Mr. Mittulal at Bangalore was carried on 09-10-2009 wherein documents maintained by Mr. Sohan Raj Mehta, C&F Agent of M/s. Dhariwal Industries Ltd were found. The AO noted that as per the seized pages being Bundle No. A/M/08 of the panchanama dated 09-10-2009 the assessee has received an amount of Rs.21 Crores from M/s. Dhariwal Industries Ltd. The assessee’s premise was also searched on 20-01-2010, i.e. after a period of about 3 months and 10 days. During the course of search at the premises of the assessee he was questioned about the documents found from the premises of Mr. Mittulal which contain documents maintained by Mr. Sohan Raj Mehta. Based on the statement of Shri Sohan Raj Mehta on oath u/s 132(4) that the said amount of Rs.21 crores as mentioned in seized documents was paid by M/s Dhariwal Industries Ltd to the assessee through him as per instructions received from Sri Rasiklal M. Dhariwal/SriPrakash R. Dhariwal, a show cause notice was issued to the assessee. The assessee in response to the questionnaire flatly denied to have received any such amount and to have any connection with Shri Sohan Raj Mehta nor any business connection with M/s. Dhariwal Industries Ltd. in his personal capacity. The assessee also requested the AO to provide the copy of statement recorded u/s 132(4) during the course of search of Shri Sohan Raj Mehta, Shri Rasiklal M. Dhariwal and Prakash M. Dhariwal. The assessee also requested the AO to grant opportunity of cross examination of Shri Sohan Raj Mehta, Shri Rasiklal M. Dhariwal and Prakash M.Dhariwal. However, the AO was not convinced with the explanation given by the assessee and made addition in the hands of the assessee as undisclosed cash receipt. Before CIT(A) the assessee challenged the validity of the assessment on the ground that no incriminating documents were found from the assessee during the course of search from his custody, does not belong to the assessee and not in his hand writing. However, the Ld.CIT(A) also was not convinced with the arguments advanced by the assessee. So far as the validity of the assessment u/s.153A is concerned he held that the requirement of making assessment/reassessment u/s.153A has no relation with the nature of incriminating material found or not found in the course of search. Total income will include any kind of income and it cannot be restricted to undisclosed income or escaped income. In view of the above he dismissed the above contention of the assessee as misplaced and not tenable. The Ld.CIT(A) further held that the amount is without consideration and liable to tax under provisions of section 56(2)(vi)of the I.T. Act. Aggrieved with such order of the CIT(A) the assessee filed an appeal before ITAT by taking the following grounds:-
Grounds of Appeal
“The ground or grounds of appeal are without prejudice to one another.
1. a) On the facts and in the circumstances of the case and in law, the Id. CIT(A) erred in not appreciating that the assessment order passed u/s. 143(3) r.w.s. 153A by the AO is without jurisdiction and bad in law as the jurisdiction u/s. 153A is vitiated.
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