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Saturday, 31 August 2019 17:01

ROHIT KUMAR GUPTA vs PCIT

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ROHIT KUMAR GUPTA vs PCIT Taxpundit.org

1. An interesting question of law arises in the present petition concerning the interpretation of Sections 153, 153 B, 245 D and 245 HA of the Income Tax Act, 1961 („Act‟).

2. The challenge in both these petitions is to the order dated 4th August, 2016 passed by the Income Tax Settlement Commission („ITSC‟) under Section 245 D (4) of the Income Tax Act 1961 (Act) as well as to the notices dated 6 th April, 2017 in respect of assessment proceedings under Section 143(3) read with Section 153A of the Act for the Assessment Years (AYs) 2009- 2010, 2010-2011 and 2011-2012 issued by the Assistant Commissioner of Income Tax, Central Circle-13, New Delhi (Respondent No.2). A further challenge is to the impugned letter and notice dated 4th July, 2017 issued by Respondent No.2 under Section 142(1) of the Act for the aforementioned AYs calling for further information from the two Assessees.

Background facts

3. The background facts are that PRG Consultants Private Limited („PRGCPL‟) the Petitioner in WP(C) No. 6060/2017 was incorporated on 9th September, 2008. Its entire share capital was held by Mr. Rohit Kumar Gupta, the Petitioner in WP (C) No. 6054/2017, along with his family members. PRGCPL was established with the main business object of providing consultancy services and acting as an advisor and consultant to technical industries. 

4. Mr Rohit Kumar Gupta was a full time Director with M/s BSBK Engineers Private Limited („BSBK‟) and M/s. Macawber Beekay Private Limited („MBPL‟). Both BSBK and MBPL are related concerns and are referred to by the Petitioners as the BSBK group. It is stated that the primary source of income of Mr. Gupta was derived from the BSBK group. It is stated that PRGCPL is also a shareholder in the BSBK Group.

5. On 24th May, 2012 a search under Section 132 of the Act was conducted on the BSBK Group of Companies. Simultaneously a search was conducted at the premises of Mr. Gupta jointly with PRGCPL.

6. On 9th June, 2014 notices under Section 153A of the Act were issued by the Income Tax Department (Department) to Mr. Gupta as well as PRGCPL. In response thereto both Petitioners i.e. Mr. Gupta and PRGCPL filed respective returns of income for AYs 2009-2010 to 2011-2012.

7. The Assessing Officer (AO) (Respondent No.2) picked up their returns for scrutiny and on 25th September 2014 issued notices to each of the Petitioners under Section 143 (2) of the Act. One of the contentions of the Department was that PRGCPL had introduced bogus share capital of Rs.5.30 crores with hefty a premium from various fictitious concerns.

8. During the pendency of the above assessment proceedings both Mr. Gupta and PRGCPL filed applications with the ITSC under Section 245C of the Act on 26th February, 2015 for settlement of their cases for the aforementioned AYs 2009-2010 to 2011-2012. Mr. Gupta stated in his application that he had received Rs.5.60 crores in cash from his employer i.e. BSBK Group and the said sum had been utilised in raising share capital of PRGCPL. 

9. Mr. Gupta disclosed that incentives of Rs.2.40 crores in each of the AYs 2009-2010 and 2010-2011 and Rs.80 lacs in AYs 2011-2012 had been received. Mr. Gupta also stated that the above share capital transactions were arranged through accommodation entries arranged from fictitious companies. He disclosed before the ITSC the names of such companies for each of the aforementioned AYs.

10. On its part, the PRGCPL disclosed additional consultancy charges received by it in cash from BSBK group over and above the consultancy receipts offered for taxation in its income tax returns.

Orders of the ITSC under Section 245 C (1) of the Act

11. It is stated that on 5th March, 2015 the ITSC passed an order under Section 245D (1) of the Act dismissing the two applications filed under Section 245 C (1) of the Act by Mr. Gupta and PRGCPL. As regards Mr. Gupta, the ITSC held as under:

“3.2 It was observed by us that the applicant has disclosed additional income being the incentive received from M/s. Macawar Beekay (P) Ltd. of Rs.2.40 crore, Rs.2.40 crore and Rs.80 lakh in AY 2009-10, AY 2010-11 and AY 2011-12 

respectively. Regarding the manner of deriving such income, the AR was required to explain whether such income was disclosed in the statement u/s. 132(4) by the applicant or any confirmation from M/s. Macawar Beekay (P) Ltd., the employer was available. The AR was also required to clarify whether during the course of search in the applicant's premises or at the premises of M/s. Macawar Beekay (P) Ltd. any evidence was found regarding the payment of incentive to the applicant, The AR was further required to explain whether there is any other basis to b, justify the payment of incentive by the employer to the applicant. The AR replied that providing reply to all the above queries would not only require substantial time but also would need examination of the entire seized material recovered in the search in the group cases. The AR accordingly submitted that he may not be able to provide this information in the short time and therefore may be permitted to withdraw the application with liberty to file it again along with the clarifications on the above points.

3.3 After considering the arguments of the AR that settlement application and the facts/materials therein, we are satisfied that the applicant has not brought any material on record to establish the manner of deriving additional income disclosed in the settlement application und has also not been able to bring the clarification on the queries raised. We are of the opinion that the essential condition of a valid application u/s. 245C (1) namely full and true disclosure of manner of deriving additional income has not been satisfied. We therefore reject the application of Sh. Rohit Kumar Gupta with liberty that he may file it again.”

12. As regards the PRGCPL application, it was held by the ITSC as under:

“4.3 After considering the arguments of the AR, the settlement application and the facts/materials therein, we are satisfied that the applicant has not paid the amount of tax and interest payable on the basis of income disclosed in the settlement application as required by section 245C (l) and therefore essential condition of a valid application is not been satisfied. We therefore reject the application of M/s. PRG Consultants Pvt. Ltd. with liberty that it may file application again.” 

13. Liberty was granted to the PRGCPL as well as Mr. Gupta to file fresh applications.

14. On 26th March, 2015 both Mr. Gupta and PRGCPL again filed fresh applications in the ITSC under Section 245 C (1) of the Act. It is stated that the technical discrepancy in the application of PRGCPL pointed out by the ITSC was rectified.

Orders of the ITSC under Section 245 D (1) of the Act

15. On 7th April, 2015 orders were passed in both applications by the ITSC on 26th March, 2015 under Section 245 D (1) of the Act allowing the applications to be proceeded with. As far as the application of Mr. Gupta was concerned the ITSC observed as under:

“3.3 The AR submitted that, after the filing of settlement application on 26.02.2015 and its subsequent rejection on 05.03 2015, the applicant approached his employer to obtain confirmation regarding the payment of incentive. The AR further submitted that the application also approached his employer i.e. M/s.Macawar Beekay (P) Ltd. to allow examination of the seized material so as to find out any reference or evidence in such seized material regarding the payment of incentive to the applicant. The AR stated that on account of souring of relations with the employer, neither M/s. Macawar Beekay (P) Ltd. has provided any certificate/ confirmation regarding payment of incentive nor allowed access to the seized material to the applicant. Consequently the applicant has not been able to obtain any evidence in this regard. The applicant has however been able to obtain balance sheet of M/s. Macawar Beekay (P) Ltd. for FYs 2006-07, 2007- 08 and 2008-09 copy of which have been enclosed with the Statement of Fact filed by the applicant. The AR argued that because of the efforts put in by the applicant, profit of M/s.Macawar Beekay (P) Ltd. increased tremendously which was evidence from the following figures. 

The AR further mentioned that it is gathered that M/s. Macawar Beekay (P) Ltd. and M/s. BSBK Engineers Pvt. Ltd., the two main concerns of the group, have also filed settlement applications and have disclosed substantial unaccounted income. The AR argued that Sh.Rohit Kumar Gupta has been working with M/s.Macawar Beekay (P) Ltd. for the last 20 years and is the key personnel of the group. It is stated by the Assessee because of his efforts that his employer M/s. Macawar Beekay (P) Ltd has progressed and has earned more and more income year after year. The AR argued that the applicant is deriving salary income and has disclosed the additional incentive income which is also derived from the same source even though it was not disclosed earlier. He argued that both the applicant and M/s. Macawar Beekay (P) Ltd. are before the Principal Bench of the Commission and therefore matter could be inquired in the settlement proceedings in these two cases to establish the correctness of incentive received by the applicant. He stated that in case source of income of the applicant was found to be false, immunity from penalty and prosecution may not be given to him. The AR argued that the applicant has made a full and true disclosure of his income and the manner of deriving such income. The AR stated that all facts have been disclosed correctly and nothing has been withheld. The AR urged that the application may be admitted.

3.4 We have considered the arguments of the AR, the settlement application and the material/record brought on record. We find that the applicant has disclosed additional income in the form of incentive received from the employer with whom he has been employed from the last 20 years. We also find that the substantial increase in the profits of M/s.Macawar Beekay (P) Ltd. has been demonstrated and claimed to be partly due to the efforts of the applicant. The application of M/s.Macawar Beekay (P) Ltd. has already been admitted u/s. 245D (1) and therefore the correctness of the receipt of incentive by Sh.Gupta from M/s.Macawar Beekay (P) Ltd. could be examined in the subsequent settlement proceeding of the two cases. We find that there is no evidence available, as of now, to hold that the disclosure made by the applicant is not full and true.

3.5 After considering the arguments of the AR, the settlement application and the facts/materials therein, we are of the opinion that the application of Sh.Rohit Kumar Gupta satisfied all the conditions of a valid application as mentioned in section 245C(1) and 245D(1). The tax and interest due on the basis of the additional income disclosed have been paid. The manner of deriving the additional income disclosed has been explained. There is no adverse information available on record, as of now, to prove that the disclosure of income in this case is not full and true. Accordingly, the settlement application of Sh. Rohit Kumar Gupta is admitted and allowed to be proceeded with u/s 245D(1).”

16. As regards the application of PRGCPL it was held by the ITSC in the same common order dated 7th April 2015 as under:

4.1 The AR stated that the deficiency of payment of tax and interest as noted in the order u/s. 245D (1) dated 05.03.2015 has been removed as the required amount of tax and interest has been paid. The AR further explained that m/s. PRG Consultants Pvt. Ltd. is related to Sh. Rohit Kumar Gupta as Sh. Gupta holds 40% voting power in the applicant company.

The AR stated that the applicant company has earned additional income from consultancy services which has been offered in the settlement application in the 3 assessment years. The AR stated that the application of the company satisfies all necessary conditions and should be admitted.

4.2 After considering the arguments of the AR, the settlement application and the facts and materials therein, we are of the opinion that the application of M/s. PRG Consultants Pvt. Ltd. satisfies all the conditions of a valid application as mentioned in Section 245C(1) and 245D(l). The tax and interest due on the basis of the additional income disclosed have been paid. The manner of deriving the additional income has been explained. There is no adverse information available on record as of now to prove that the disclosure of income in this case is not full and true. Accordingly, the settlement application of M/s. PRG Consultants Pvt. Ltd. is admitted and allowed to be proceeded with u/s 245D(1).”

17. In both cases reports were called for by the ITSC under Section 245 D (2B) of the Act from the Principal Commissioner of Income Tax (PCIT). The PCIT submitted reports on 7th May, 2015 objecting to the validity of both applications on the ground that full and true disclosure of undisclosed income had not been made by each of the Petitioners.

Orders of the ITSC under Section 245 D (2C) of the Act

18. On 20th May, 2015 the ITSC passed a further order under Section 245D (2C) holding as under:

“8.1 We have heard the arguments put before by both the ld. CIT (DR) and the ld. AR of the applicants. We observed that the CIT has raised mainly the issue of manner of earning of additional income. The applicant has spelt out the manner of earning being the cash incentives received from the employer; however he expressed his inability to furnish the evidences due to the strained relationship with his employer. After examining the facts and circumstances of the case, the contentions of the AR regarding the manner of earning of additional income declared are found reasonable and tenable. 

9. After careful consideration, we find that the above two applicants have fulfilled all the conditions prescribed u/s 245C (1) as there is no adverse material on record to suggest otherwise. Even otherwise the issues raised by the Ld. CIT in his reports dated 07.05.2015 shall be open for the Bench during the course of proceedings u/s 245D (4). The CIT will have opportunity to examine the same and offer further comments, if any, during the course of proceedings u/s 245D (4). The decision to hold these Settlement Applications “not invalid” is without prejudice to initiation of penalty and launching of prosecution proceedings, if required on facts available on the records at the relevant time in subsequent proceedings by the Commission. Accordingly, we hold that these Settlement Applications are prima-facie 'not invalid' and therefore, are allowed to be proceeded with further.”

19. Thereafter the ITSC called the PCIT to submit a report under Rule 9 of the Settlement Commission Procedure Rules, 1997. A report was submitted by PCIT dated 7th August, 2015 pointing out that the BSBK Group had itself filed petitions under Section 245(C) before the ITSC and neither the PRGCPL nor Mr. Gupta nor the BSBK have made a full and true disclosure of their incomes before the ITSC. Mr. Gupta, in reply to the Report submitted by the PCIT under Rule 9 filed a rejoinder clarifying that he had no other source of income other than salary from BSBK group.

20. On 16th March, 2016 the ITSC passed an order under Section 245D (3) of the Act allowing PCIT to conduct verification/investigation on the “issue of incentive received by the applicant from BSBK Engineers Pvt. Ltd. and Macawar Beekay (P) Ltd. from the seized documents of these companies.” Thereafter, a notice dated 7th April, 2016 was issued by the AO directing each of the Petitioners to participate in the verification/investigation process as directed by the ITSC by order dated 16th March 2016. A reply was submitted by Mr. Gupta on 25th April, 2016 to the AO stating that he was unable to provide any confirmation from the BSBK group regarding payment of incentives on account of „strained relations‟. It was also submitted by Mr. Gupta that, copies of applications and submissions filed by BSBK Group with ITSC had not been made available to him.

55. It requires to be noted that clause (iii a) to Section 245 HA (1) was inserted with effect from 1st June, 2015. It envisages abatement on the „specified date‟ as a result of an order under Section 245D (4) being passed, in respect of an application under Section 245C, “not providing for the terms of settlement.” This makes therefore two things clear. One is that it legislatively recognises that under Section 245D (4) an order could be passed by the ITSC “not providing for the terms of settlement”. This is consistent with the judicial verdict in Ajmera Housing Corporation v. Commissioner of Income Tax (supra) of the scope and ambit of the expression “such other order” appearing in Section 245D (4) as including an order of rejecting an application for settlement. The second is that such an order would result in abatement of the proceedings before the ITSC. What this abatement does to the limitation period under Section 153B has been  spelt out, not by the provisions as it stands after 1st January, 2016 but the provision as it stood prior thereto which takes it back to Section 153 itself and in particular the second proviso below the Explanation 1. 

56. The second proviso to Section 153 of the Act was inserted by the Finance Act 2008 with retrospective effect from 1st June 2007 and it reads as under

“Provided also that where a proceeding before the Settlement Commission abates under section 245HA, the period of limitation available under this section to the Assessing officer for making an order of assessment or reassessment, as the case may be, shall, after the exclusion of the period under subsection (4) of section 245HA, be not less than one year; and where such period of limitation is less than one year, it shall be deemed to have been extended to one year; and for the purposes of determining the period of limitation under sections 149, 153B, 154, 155, 158BE and 231 and for the purposes of payment of interest under section 243 or section 244 or, as the case may be, section 244A, this proviso shall also apply accordingly

57. The submission of learned counsel for the Revenue drawing attention to the fact that this further proviso was inserted by the Finance Act, 2008 was part of legislative scheme as is evident from the explanatory notes thereto is again well founded. That explanatory note in para 37.1 states as under:

“37.1 The Finance Act, 2007 carried out a comprehensive amendment to the scheme of settlement of cases. This scheme provides for abatement of proceedings before the Settlement Commission under various circumstances. In order to deal with the various issues that may arise in the event of abatement of proceedings before the Settlement Commission, an amendment has been carried out to empower the Commissioner of Income tax to grant immunity from penalty and prosecution in cases which abate.” 

58. The position that emerges in the context of the case in hand is as under:

(i) The search in the present case took place on 24th May 2012 and notices to the two Petitioners under Section 153 A of the Act for AYs 2009-10, 2010- 11 and 2011-12 were issued on 2nd June 2014.

(iii) The proceedings in the ITSC at the instance of the two Petitioners were pending from 26th February 2015 till 4th August 2016.

(iii) While in the normal course the assessments under Section 153 A of the Act would have had to be completed by 31st March 2015, in view of the Petitioners having approached the ITSC the period during which they were there awaiting the decision of the ITSC has to be excluded.

(iv) After excluding the above period, the period remaini

ng to complete the assessments was obviously less than one year. In terms of the second proviso to Section 153 of the Act the period of extension for completing the assessment was „deemed‟ to be extended to one year. In the present case there was time till 16th August 2017 for the AO to complete the assessments. Consequently, the notices issued to the Petitioners on 6th April 2017 under Section 143 (3) read with Section 153 A of the Act, were not invalid as the limitation period for completing the assessments had not expired by then.

59. The case of the Petitioners is, however, built entirely around Section 153 B of the Act as it stood prior to its amendment with effect from 1st April 2017 by the Finance Act 2017. It reads thus:

“153 B Time limit for completion of assessment under Section 153 A

(1) Notwithstanding anything contained in section 153, the Assessing Officer shall make an order of assessment or reassessment,—

(a) in respect of each assessment year falling within six assessment years and for the relevant assessment year or years referred to in clause (b) of sub-section (1) of section 153A, within a period of twenty-one months from the end of the financial year in which the last of the authorisations for search under section 132 or for requisition under section 132A was executed;

(b) in respect of the assessment year relevant to the previous year in which search is conducted under section 132 or requisition is made under section 132A, within a period of twenty-one months from the end of the financial year in which the last of the authorisations for search under section 132 or for requisition under section 132A was executed‟.

Explanation.-In computing the period of limitation for the purposes of this section,

(i) the period during which the assessment proceeding is stayed by an order or injunction of any court; or

…… (iv) in a case where an application made before the Settlement Commission under section 245C is rejected by it or is not allowed to be proceeded with by it, the period commencing from the date on which such application is made and ending with the date on which the order under sub-section (1) of section 245D is received by the Principal Commissioner or Commissioner under sub-section (2) of that section; or

Provided that where immediately after the exclusion of the aforesaid period, the period of limitation referred to in clause (a) or clause (b) of this sub-section available to the Assessing Officer for making an order of assessment or reassessment, as the case may be, is less than sixty days, such remaining period shall be extended to sixty days and the aforesaid period of limitation shall be deemed to be extended accordingly.”

60. The submission that Clause (iv) of the Explanation to Section 153 B of the Act applies is premised on the order passed by the ITSC on 4th August 2016 being an order under Section 245 D (1) of the Act. For the reasons already noted hereinbefore, that submission is inconsistent with the plain reading of the provisions discussed, and in particular Section 245 D (4) as explained in Ajmera Housing Corporation v. Commissioner of Income Tax (supra).

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61. It must be noted here that by the Finance Act 2017, with effect from 1st April 2017, the following further proviso was added to Section 153 B:

“Provided also that where a proceeding before the Settlement Commission abates under section 245HA, the period of limitation available under this section to the Assessing Officer for making an order of assessment or reassessment, as the case may be, shall, after the exclusion of the period under subsection (4) of section 245HA, be not less than one year; and where such period of limitation is less than one year, it shall be deemed to have been extended to one year.”

62. Correspondingly with effect from the same date, Clause (v) to Explanation 1 to Section 153 of the Act got amended to delete the reference therein to Section 153 B of the Act. Till this change was made, the provision that was required to be referred to for determining the limitation for completing the assessment under Section 153 A, where there had been an abatement of the proceedings before the ITSC, was Clause (v) to Explanation 1 to Section 153 of the Act and not Section 153 B of the Act which made no reference to abatement of the proceedings before the ITSC by virtue of an order passed under Section 245 D (4) of the Act. The change brought about by the Finance Act 2017 does not apply to the case on hand where the proceedings under Section 153 A of the Act commenced long prior to the said amendment.

63. The submission that for determining the limitation for completion of an assessment under Section 153 A, the only provision that can be examined is Section 153 B of the Act and that no other provision of the Act can be referred to is based on a restricted understanding of the scope of a nonobstante clause. A non obstante clause is meant to give an overriding effect to certain provisions or others in the same statute or some other statute which are inconsistent. In Vishin N.Khanchandani. v. Vidya Lachmandas Khanchandani (supra), the Supreme Court observed as under:

“There is no doubt that by non-obstinate clause the Legislature devices means which are usually applied to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other statute. In other words such a clause is used to avoid the operation and effect of all contrary provisions. The phrase is equivalent to showing that the Act shall be no impediment to measure intended. To attract the applicability of the phrase, the whole of the section, the scheme of the Act and the objects and reasons for which such an enactment is made has to be kept in mind.” 

64. Indeed there is no inconsistency between Clause (v) of Explanation 1 below Section 153 read with the second proviso thereto as they stood prior to 1st April 2017 and Section 153 B read with Clause (iv) below the Explanation thereto read with the first proviso which only dealt with the abatement of proceedings before the ITSC as a result of an order under Section 245 D (1) of the Act and not, as in the present case, an order under Section 245 D (4) of the Act.

65. Inasmuch as in the instant case the order passed by the ITSC on 4th August, 2016 is an order under Section 245D (4) of the Act it enlarges the period of extension of limitation by one year in terms of further proviso to Section 153 below Explanation 1 that would apply. In terms thereof the notices issued to the Petitioners on 6th April, 2017 cannot be said to be time barred. Consequently, the objection raised by the Petitioners to the said notice was rightly rejected by the Respondent No.2 by the second impugned order dated 4th July, 2017.

66. The ground on which the impugned orders dated 4th August 2016 of the ITSC are assailed are that they did not account for the numerous interlocutory orders earlier passed by the ITSC in the same matter that prima facie found in favour of the Petitioners.

67. As already discussed earlier, the impugned final order dated 4th August 2016 of the ITSC under Section 245 D (4) of the Act was passed after a detailed report was received from the PCIT. This was a comprehensive report which provided more than adequate justification for the decision of the ITSC to conclude that there had not been a full and true disclosure by the Petitioners of all relevant facts. The impugned order dated 4th August 2016 of the ITSC calls for no interference.

68. The period during which the present petitions were pending in this Court shall stand excluded for calculating the period within which the impugned assessments have to be completed.

69. The writ petitions are accordingly dismissed but in the circumstances no order as to costs. The interim orders are hereby vacated.

Cases Referred to  

1. Orders of the ITSC under Section 245 D (2C) of the Act

2. CIT v. Om Prakash Mittal (2005) 2 SCC 751

3. Ajmera Housing Corporation v. Commissioner of Income Tax (2010) 8 SCC 739.

4. PCIT v. Settlement Commission [2016] 386 ITR 660 (Guj)

5. CIT v. ITSC [2014] 360 ITR 407

6. CIT Mumbai v. Anjum Ghaswala (2001) 252 ITR 1 (SC)

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Additional Info

  • Order Date: Monday, 19 August 2019
  • Court: High Courts
  • Cout Name: https://www.taxpundit.org/phocadownload/Taxpundit_Reporter/Taxpundit_Reporter_2019/August_2019/819Taxpundit247.pdf
  • Section: 153, 153 B, 245D, 245HA, 132, 245C
  • Favouring: Revenue
Read 95 times Last modified on Saturday, 31 August 2019 17:23
Deepak Kumar

A Post Graduate and Chartered Accountant Deepak Sinha is a member of Taxpundit's core team. An analytical, result oriented professional with more than 10 years of combined experience in industry and consultancy.

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