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09-01-2020, Mohan Thakur, Section 148, 147, 153A, 158BC, Tribunal Mumbai

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1 week 5 days ago #12005 by amit
Section - 148, 147, 153A, 158BC, 139, 149, 151, 153
Order Date - 09-01-2020
Favouring - Assessee
Court - Tribunal Mumbai
Appellant - Mohan Thakur
Respondent - ACIT
Justice - SHAMIM YAHYA, AM & AMARJIT SINGH, JM
Citation - 120Taxpundit76
Appeal No. - I.T.A. No.7413 /Mum/2017
Asstt. Year - 2008-09

Order

PER : AMARJIT SINGH JM

The assessee has filed the present appeal against the order dated 30.10.2017 passed by the Commissioner of Income Tax (Appeals)-50, Mumbai [hereinafter referred to as the “CIT(A)”] relevant to the A.Y.2008- 09.

2. The assessee has raised the following grounds of appeal: -

“The Learned CIT(A) erred in upholding the validity of Notice u/s 148 where the proceedings u/s 153C had already been initiated which were dropped and immediately the reassessment proceedings had been initiated without any fresh material on record and hence reopening is void- ab - initio Merit : Addition of Rs.237.00.000/- based on entries in diary of Third person:

2. No addition can be made based on entries found in the books in third party's premises since no search u/s 132 had taken place on the Assessee and hence S.132(4A) would not be applicable to the present facts of the case. In view of the same the entire addition may be deleted.

3. The Learned CIT(A) erred in confirming the addition of Rs.2,37,00,000/- made by the AO merely on the basis of entries found in the Diary of Mr. Jitendra Mehta by neither providing the entire copy of the diary to cross verify the veracity of such entries to the assessee nor could the assessee have an opportunity to cross examine the person giving the statement (since deceased), hence the entire addition may be deleted. Merit: Addition of Rs.3,02,17,593/- based on information received from Australian Tax authorities.

4. No addition can be made based on mere information received from foreign authorities without any evidence on record, hence the entire addition is bad and may be deleted.

5. The CIT(A) erred in confirming the addition of Rs.3,02,17,593/- based on information received from DDIT (I&CI) via Australian Tax Office that there was receipt of money through alleged hawala system by the Appellant's Son from various parties, all of whom were living outside India, which was assumed to be transferred from the Appellant to his son without any evidence on record and a statement given by the appellant's son before the Australian tax authorities, the copy of which had not been provided to the Assessee and on mere suspicion and conjectures and hence the addition made should be deleted.

6. The CIT(A) erred in not appreciating that no transaction has taken place between appellant and his son and also that the transactions, which would be repaid by the Appellant's son and not the appellant himself, as confirmed by the partie providing loans, were outside the Jurisdiction of the Income Tax Act, where no provision have been provided under which such foreign transactions could be taxed, and hence the said addition should be deleted.

7. The appellant craves leave to add, amend, alter or delete any of the above grounds of appeal.”

3. The assessee has also raised the following additional grounds: -

“Without prejudice to ground no. 1 to 7 Ld. CIT(A) erred in confirming the order of the AO being Deputy Commissioner of Income tax, where no sanction had been taken from the joint Commissioner of Income tax prior to issuing notice under section 148 since such notice was issued beyond 4 years which is bad in law and hence the no assessment could have been made under section 143(3) r.w.s. 147 of the Income tax Act. The appellant craves leave to add, amend, alter or delete any or all the above grounds of appeal.”

4. The brief facts of the case are that the case of the Assessee was reopened by issuance of notice dated 31.03.2014 u/s 148 of the I. T. Act, after recording necessary reason to believe that an income chargeable to tax has escaped Assessment and after obtaining the prior approval of higher authorities. In response to the notice, the assessee has filed the return of income on 23.04.2014 declaring the total income to the tune of Rs.4,25,15,255/-. Notices u/s 143(2) & 142(1) of the Act were issued and served upon the assessee. The reasons for reopening of the case were supplied to the assessee who filed the objection and the objection of the assessee was disposed of. A search and seizure action u/s 132 of the I. T. Act, 1961 was carried out at the residences and business premises of the Rohan Group related entities on 26.05.2011 by the Dy DIT(Inv.), UnitIII(3), Mumbai. During the course of search and seizure action at the residence of late Jitendra N. Mehta at 2601, Shivtapi, Harishachandra Goregaonkar Marg, Gamdevi, Mumbai-400007, certain documents were found and seized. On page no. 7 & 8 of annexures no. 1, various abbreviations were mentioned. While recordings the statements u/s 132(4) of the Act of late Jitendra N. Mehta, it came into notice that transaction appearing on that page related with Mysore property purchased by the Rohan Group. On the same paper an abbreviation „MT‟ was reflected against which various transactions were appearing. Some of them were carrying cheque numbers and some of them were without cheque numbers which were actually cash transaction which were not recorded in books of account. The abbreviation „MT‟ has been identified as Mr. Mohan Thakur who was an interested party in Mysore property purchase. It was written that „MT‟ who was actually Mr. Mohan Thakur had received Rs.2,37,00,000/- in three parts i,e Rs.1,27,50,000/- & 84,50,000/- on 21.10.2007 and Rs.25,00,000/- on 03.11.2007 in cash, therefore, showcause-notice was issued and after the reply of the assessee the amount was added to the income of the assessee.

4. The information was received from Australian Tax office that Mr. Mohan Thakur sent funds amounting to Rs.12,97,122/- Australian Dollar (Rs.5 crore approx.) to Mr. Shagun Thakur and other family members i.e. Shri Shikhar Thakur (son) & Smt. Desiree Ann Thakur (wife) through Hawala System for the period w.e.f 2007-08 to 2012-13. Mr. Shagun Thakur claimed before Australian Tax office that funds received were the gifts from his father to buy a property situated at Australia. Mr. Shagun Thakur also stated that on account of foreign exchange restrictions which was currently existed in India, his father had instructed to his friends and business associates at overseas to send the funds to him under the Hawala system. The details were received from Mr. Shagun Thakur, Shri Shikhar Thakur and Smt. Desiree Ann Thakur during F.Y. 2007-08 were as under.: -

5. Thereafter, the notice was given and after the reply of the assessee an amount of Rs 3,02,17,593/- was added to the income of the assessee. The total income of the assessee was assessed to the tune of Rs.9,64,34,443/-. Feeling aggrieved, the assessee filed an appeal before the CIT(A) who dismissed the appeal of the assessee, therefore, the assessee has filed the present appeal before us.

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