CIT – Appeal has the jurisdiction to entertain additional claims made before them

CIT - Appeal has the jurisdiction to entertain additional claims made before them

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CIT – Appeal has the jurisdiction to entertain additional claims made before them

Short Overview The claim for deduction under section 24(a) had been made before the AO during the assessment proceedings (though not by revised return), but by revised computation of income, and in view of the fact that the amount in question, was basically Rental Receipt, it had to be taxed as Income from House Property and hence, the deduction allowable had to be given to the assessee.
Assessee claimed in the assessment proceedings that the Miscellaneous Receipts included Rental Receipt from HHG and revised computation of Total Income was filed disclosing the Annual Lettable Value under section 23 after deducting the deduction under section 24(a) at @ 30% of the Annual Value of which disallowance was made by AO.
It is held that  A perusal of the facts of the case and the legal position shows that there was no challenge to the fact that the amount was received from HHG as Rent, and that the appellate authorities had the jurisdiction to entertain additional claims made before them. In the instant case, the claim for deduction under section 24(a) had been made before the AO during the assessment proceedings (though not by revised return), but by revised computation of income, and in view of the fact that the amount in question, was basically Rental Receipt, it had to be taxed as Income from House Property and hence, the deduction allowable had to be given to the assessee.
Followed: Goetze India Ltd. v. CIT (2006) 284 ITR 323 (SC) : 2006 TaxPub(DT) 1528 (SC).
Decision: In assessee s favour.
IN THE ITAT, DELHI BENCH
BHAVNESH SAINI, J.M. & B.R.R. KUMAR, A.M.
ACIT v. Harvansh P. Chawla
ITA Nos. 5857 to 5858/Del/2017
26 April, 2021
Assessee by: Rohit Tiwari, Advocate
Revenue by: Sunita Singh, CIT DR
ORDER
B.R.R. Kumar, A.M.
The present appeals have been filed by the revenue against the orders of the learned Commissioner (Appeals)-25, New Delhi dated 31-5-2017.
  1. In theITA No. 5857/Del/2017, following grounds have been raised by the revenue :–
“1. That the order of the learned Commissioner (Appeals) is not correct in law and on facts.
  1. On the facts and circumstances of the case, the learned Commissioner (Appeals) has erred in deleting the addition of Rs. 28,00,00,000 made on account of undisclosed income and has failed to appreciate the fact that the addition was made on the basis of the documentary evidence.
  2. On the facts and circumstances of the case, the learned Commissioner (Appeals) has erred in allowing deduction under section 24 of Rs. 37,59,156.
  3. On the facts and circumstances of the case, the learned Commissioner (Appeals) has erred in deleting the addition of Rs. 10,91,67,051 made on account of unexplained unsecured loans.”
  4. In theITA No. 5858/Del/2017, following grounds have been raised by the revenue :–
“1. That the order of the learned Commissioner (Appeals) is not correct in law and on facts.
  1. On the facts and circumstances of the case, the learned Commissioner (Appeals) has erred in deleting the addition of Rs. 46,00,17,516 made on account of unexplained credits in the books.
  2. On the facts and circumstances of the case, the learned Commissioner (Appeals) has erred in deleting the addition of Rs. 4,15,141 made under section 14A read with Rule 8D.”
  3. The Appellant is a practicing Lawyer running a Law Firm by the name of M/s. K.R. Chawla and Co. As against the returned Income of Rs. 89,58,460 as per the return for assessment year 2008-09 filed on 29-9-2008, the income was assessed under section 143(3) at Rs. 40,36,11,984 (a).
  4. Information has been received by the assessing officer from the Deputy Director of Income Tax (Inv.) Unit-II(3) New Delhi containing the details pertaining to RC-21 & 22/2008/SVPS/365 dated 17-8-2009 from the office of the Director-Cum-Commissioner, Vigilance Gangtok Sikkim.
  5. Among the documents seized was a printout of e- mail conversations between the assessee. Shri Harvansh Chawla (e-mail hchawla@ krcco. com), Michael Boettcher of Storm International. Narinder Grover (e- mail: ngrover@krcco.eom) and one Shri Ivo Muijser. The subject of these e- mails is “payment for 2 licenses” and they seem to be related to getting licenses for casino in Sikkim. The e-mails have been exchanged in the month of November and December 2007. In the e-mail conversation there is a mention of remittance of $7,000,000. Shri Narinder Grover also acknowledges the receipt of this money in his e- mail, further Mr. Michael in his e-mail to Shri Harvansh Chawla mentions about the refund of the money paid to Shri Chawla in the situation that the licenses for casino are withdrawn.
  6. During the course of assessment proceedings for assessment year 2008-09 summons under section 131 were issued to the following parties on 12-7-2010 :–
S.No.
Name of the Party
Address
1.
Harvansh (assessee) P. Chawla
C-17, Nizamuddin Delhi East, New
2.
Shri Narinder Grover
C/O K.R. Chawla &. Co. 707, Kailash Building, 28, K. G. Marg, New Delhi- 110001
3.
Shri Kunwar Singh Omkar
H-3, Sector- 41, Noida, U.P.
  1. Shri Kunwar Omkar Singh did not comply and no response was received in. this office. The summons in the case of Shri Narinder Grover were sent to the address of M/s. K.R. Chawla & Co. as he was using an e-mail address owned by the said firm. This was apparent from the e-mail conversation seized from Shri Kunwar Omkar Singh. The summon was sent back by M/s. K.R. Chawla & Co. with the comments that Shri Narinder Grover was no longer available there. Shri Harvansh P. Chawla appeared before the undersigned on 17-8-2010 and gave his statement on oath.
  2. During the course of statement Shri Harvansh P. Chawla has admitted that he knew Shri Kunwar Omkar Singh and elaborated on his dealings with Shri Kunwar Omkar Singh. The relevant portion of the statement is reproduced below :–
“Q.2 Do you know Shri Kunwar Omkar Singh?
Ans. Yes, I know Shri Kunwar Omkar Singh. He was the Managing Director of Sikkim Distillers. He was introduced to us by a law firm called Norten Rose of London. I was in touch him in the following contexts :–
(a) He was interested in purchasing a Nursing Home situated a Noida. He had given a Cheque of Rs. 55 Crores (seized during the course of search from my residence on 28-2-2007) as an expression of his serious interest in the deal. This deal did not materialized and the Cheque was never presented. The Nursing Home is still in the name of the original owner.
(b) He introduced me in M/s. Storm International. I acted as a legal consultation to M/s. Storm International while they were in the process of obtaining a license for casino in India.
3.5 A perusal of the e-mail dated 19-12-2007 from Mr. Michael Boettcher (mpb@stormby.com) to Shri Harvansh P. Chawla shows that money was received by Shri Harvansh P. Chawla.
However, Shri Harvansh P. Chawla has denied having received this money. The relevant portion of his statement in this regard is reproduced below :–
“Q9. In the e-mail dated 19-12-2007 from Mr. Shri Michael Boettcher (mpb@stormby.com) addressed to you Mr. Michael Boettcher written as below:
“Mr. Chawla,
Mr. Singh the minister from Sikkim called me today and advised me that you told him you had not received any payment from Storm for the casino license(s). I tried to reach you by telephone without success. I do not have to tell you how disappointed I am especially you have had the opportunity in build something unique and special that would have put Sikkim firmly on the map as well as creating increased employment and visions in the region based on the investments by Storm as well as the possibility of a very positive future business together.
I am also advising you on behalf of Mr. Singh to send $ 2.5 m to Mr. Singh tomorrow. If you not he will (quite correctly in my opinion) to withdraw the casino licence.
In the case of the casino license being withdrawn you will be required to return to Storm the full amount of the sum we paid to you plus any interest incurred.
Yours sincerely,
Michael Boettcher
PRESIDENT & CEO
Storm International B.V.
www.stormbv.com
From the above e-mail, it appears that the money has been received with your knowledge and has been entrusted to you by M/s. Storm International. Please comment?
Ans. I affirm that neither me, my family or any of my associates concern have received any money from M/s. Storm International nor was I entrusted with any money by M/s. Strom International or Micheal Boettcher. The above email was sent erroneously or in mistaken belief. The fact that neither I nor my family or associates firms have received this money can be verified from our bank statements.
A detailed show-cause notice was issued to Shri Harvansh P. Chawla vide Letter, dated 13-12-2010. The above observations were brought to the notice of the assessee and he was given a final opportunity to furnish his explanation in this regard. The assessee vide Letter, dated 20-12-2010 submitted his detailed explanation. The main points are reproduced below :–
“In the light of facts and circumstances of the case, legal provision and case laws including the decisions of Delhi ITAT Jurisdictional High Court and Hon’ble Supreme Court cited above, the assessee submission are summarized below :–
  1. That the email referred in yourShow Cause Noticed, dated 13-12-2010is not written by the assessee and contents of the said email are denied.
  2. That the aforesaid print of email was not seized from the premises of the assessee during the course of search but it was forwarded by Sikkim Police after more than one year than the search was over. Hence, the presumption under section 132(4A) of the Income Tax Act, 1961 is not applicable.
  3. That the aforesaid print of email is a kind of Dumb Document which cannot be used against the assessee.
  4. That in the email there is no indication of receipt of any money or accrual of any income in favour of the assessee.
  5. That even in yourShow Cause Notice, dated 13-12-2010nothing is mentioned about receipt of any money or accrual of any income by the assessee.
  6. That in Para 2 ofShow Cause Notice, dated 13-12-2010, you have mentioned in the email conversation there is mention of remittance of $ 7,000,000 on the instruction of Shri Narender Grover. Shri Narender Grower also acknowledges the receipt of this money. This suggests that the assessee did not receive any money and he was also not responsible for the receipt of $ 7,000,000 by Shri Narender Grover as both are independent persons.
  7. That in Para 4 of show cause notice it is mentioned that the money was received with the knowledge of Shri Harvansh P. Chawla (assessee). Though there was no evidence about the knowledge of the assessee yet mere keeping the knowledge of receiving the money by some independent person (not an agent) does not make the assessee responsible for any taxation.” “
  8. The explanation of the assessee is not accepted by the assessing officer. He held that the assessee has merely denied that the money was received in his bank accounts or in the accounts of any of his concerns. The assessing officer held that no sane person would receive unaccounted income in his accounts or in the accounts of any of the concerns related to him.
  9. The assessing officer held that,
The email clearly fixes the liability to pay back on Shri Chawla in the event of licenses being cancelled.
There is also a mention of the repayment alongwith interest.
Thus, Shri Chawla is directly or indirectly the beneficiary of the amount of USD 7,000,000 mentioned in the email.
It is a settled legal principal that in a situation where the evidence and preponderance of probability points against the assessee, the onus is on the assessee to disprove the evidence.
The submission of Shri Chawla that his firm has no records of Shri Narinder Grover is not acceptable.
The relevant portion of the statement of the is as under :–
“Q 6. Please clarify on the status of Shri Narinder Grover and the use of your firms e-mail id by him?
Ans. He was working on behalf of M/s. Storm International M/s. Storm International was my client. It is customary among the law firms to provide table space and communications facilities on temporary basis to clients still they have their own setup. In a similar arrangement, Shri Narinder Grover was allowed to use the office facilities and the e-mail address. We billed the use of these facilities to our client M/s. Storm International. Shri Narinder Grover used to continuously work from our office for the period starting a few days before Diwali, 2007 till December, 2007. After January, 2008 he stopped coming to office and I have no information about his or his where about after that.”
The assessee has clearly admitted that Shri Narinder Grover was using the office premises and infrastructure at his law firm M/s. K.R. Chawla and Co. He had even been allotted an email id on the internal server of the assessee’s law firm. The email ids and other communication equipment are instruments that can misused to unimaginable extent. It is unlikely that a responsible lawyer like the assessee would let anyone use his office space and facilities without having the details regarding the background of the person. Thus Shri Chawla has not been telling the truth.
The assessee admitted the fact that the email from Mr. Micheal Boettcher was received by him. He has further accepted his association with M/s. Storm International.
The email clearly mentions but money has been received by the assessee and fixes the liability on him to pay back alongwith interest in the event of Casino license being cancelled.
In view of the circumstances listed above, it is clear that the evidence points to assessee has received. USD 7,000,000 through undisclosed sources. Hence, these USD 7,000,000 are treated as his undisclosed income. The rupee equivalent at prevailing rate of USD on 31-3-2008 is Rs. 28,00,00,000. An addition of Rs. 28,00,00,000 is made under the head income from other sources.
  1. The learned Commissioner (Appeals) deleted the addition.
  2. Before us, the respective parties relied on the submissions and information available on record.
  3. The submissions of the assessee with regard to this issue before the learned Commissioner (Appeals) are as under :–
On going through the assessment Order, dated 28-12-2010 para 3, it is evident that certain documents were seized from the residence of one Shri Kunwar Omkar Singh by the Sikkim Vigilance Police which was forwarded to the Investigation wing, New Delhi, and in turn, the DDIT (Inv.) Unit II(3), New Delhi vide Letter, dated 17-8-2009 forwarded the same to the learned assessing officer. The learned assessing officer observed that it was a printout of email conversation between Shri Harvansh P. Chawla, Shri Micheal Bochcer of M/s. Strom International, Shri Narender Grover and one Shri Ivo Mujjiser. The subject matter of the emails were, pertaining to licences for casino in Sikkim and remittance of USD 70,00,000. Shri Narender Grover has also acknowledged the receipt of money in his email. With reference to said exchange of email held in November & December 2007.
The learned assessing officer issued summon under section 131 to Shri Harvansh P. Chawla (Assessee), Shri Narender Grover and Shri Kunwar Omkar Singh. In response to said summon, Shri Harvansh P Chawla (Assessee) appeared before the learned assessing officer, whose statement was recorded on oath on 17-8-2010. The learned assessing officer issued Show Cause Notice, dated 13-12-2010 and in response, the appellant has submitted his reply dated 20-12-2010. Thus, after considering the assessee reply and statement, recorded on oath, the learned assessing officer held that the assessee received USD 70,00,000 through undisclosed sources, hence, the same was treated as assessee’s undisclosed income in Indian Rupees at Rs. 28,00,00,000.
Consequently, the learned assessing officer, made an addition of Rs. 28,00,00,000 in the case of appellant.
That on going through the email as reproduced in the assessment order and also enclosed with the assessment order, it is evident that the appellant has neither written/sent any email nor has acknowledged the contents of the email (under dispute). Since the printout of email was not/seized from the premises of the appellant, the presumption of section 132(4A) of the Income Tax Act, 1961 is not applicable against the appellant. The learned assessing officer Income Tax Department were under obligation to make necessary enquiry against the persons from whom it was seized. Further, it can be enquired who has either sent the email or has admitted the contents of the email. Since the appellant is not involved in emails exchange, no action can be taken against the appellant.
That in response to summon under section 131 of the Income Tax Act, 1961, the appellant appeared before the learned assessing officer and his statement was recorded on oath. The appellant in his statement categorically denied about the receipt of any money as mentioned in the email (under dispute) cither by himself or by anybody else on his behalf. Since the appellant has complied the summon issued under section 131 he should not be punished by making the addition of Rs. 28,00,000 without having any evidence. Those who did not comply the summons, no action have been taken against them. The appellant being law abiding person should not be penalized by making the addition of Rs. 28,00,00,000 without having any evidence. Hence, the addition is unjustified and the same is liable to be deleted.
That in response to show cause notice issued during course of assessment proceeding, the appellant filed a written submission dated 20-12-2010 before the learned assessing officer explaining the factual and legal position in respect of alleged receipt of Rs. 28,00,00,000 as mentioned in the disputed email.
However, the learned assessing officer without appreciating the factual position and legality of the issue, wrongly added Rs. 28,00,00,000 in the impugned assessment order. Hence, the addition of Rs. 28,00,00,000 is liable to be deleted. The copy of submission dated 20-12-2010 is enclosed as Annexure-1.
That on going through the emails either incorporated in the assessment order or attached with the assessment order, your goodself will find that nowhere it was mentioned that the appellant had received USD 70,00,000 equivalent to Rs. 28,00,00,000. Further, on going through the email dated 22-11-2007 written by Shri Ivo Mujjser to Shri Narinder Grover, it is evident that Shri Ivo Mujjser has instructed to his banker to transfer the amount of USD 70,00,000. In response, Shri Narender Grover replied on 26-11-2007 confirming the receipt of said money. Thus on the basis of email exchange, it appears that Shri Ivo Mujjser has transfer USD 70,000,000 to the bank instructed by Shri Grover and later on Shri Grover confirmed the receipt of said money. On going through the email exchange, it is evident that Shri Harvansh P Chawla (appellant) is not in picture at all. Hence, the addition of Rs. 28,00,00,000 in the case of appellant is without any evidence. Thus, the addition made in the case of appellant is unjustified and the same is liable to be deleted.
That now a question arises, how Shri Narender Grover was connected with the appellant? Second question is, whether Shri Grover was an agent of the appellant or he was working on behalf of the appellant? These questions are explained by Shri Harvansh P Chawla (appellant) in his statement recorded on oath. In response to question No. 6 which have been reproduced by the learned assessing officer in para of the assessment order, the appellant explained that M/s. Storm International was a client of the appellant and Shri Narender Grover was working on behalf of said Storm International. In the light of customary practice Shri Narinder Grover was allowed to use his office as well as the communication facilities of the appellant on behalf of said M/s. Storm International till December, 2007. Since the work of M/s. Storm International was over, he stopped coming to the appellant office thereafter. In the light of facts mentioned above, it is evident that Shri Narender Grover was neither the staff of the appellant nor he was an agent nor he was working on behalf of the appellant. In this situation, the appellant is not responsible for the work and conduct of Shri Narender Grover and no addition can be made in the case of the appellant, only on the reason that he (Shri Grover) sent the email by using the official server of the appellant.
That since Shri Narender Grover was working in the office of the appellant on temporary basis in connection with work of M/s. Storm International (appellant’s client). He was allowed the office facilities including the email addresses in order to professional practice and requirement. Accordingly, he might have sent the emails to Shri Ivo Mujjiser through the appellant office server by misusing the facilities provided by the appellant However, this may not be basis for holding that the said USD 70,00,000 was received either by the appellant or by anybody else on behalf of the appellant. Thus, the addition made merely on the reason of sending the email by Shri Narender Grover from the office server of the appellant is unjustified. Hence, the same is liable to be deleted.
That though the sending of email by Shri Narender Grover through the office server of the appellant may be a basis for enquiry, yet, it cannot be a basis for the addition in the case of appellant without having supporting evidences. No doubt, the learned assessing officer has correctly enquired the matter from the appellant by issuing the show cause notices and recording the statement on oath and also by examining the books of accounts and bank pass book etc. Since the learned assessing officer did not find any evidence of receipt of USD 70,00,000, he was required to gracefully accept the appellant submission and not to make any addition on presumption basis. In absence of any supporting evidence, the learned assessing officer was not justified by holding in para 3.8 of the assessment order, “thus Shri Chawla is directly or indirectly the beneficiary of the amount of USD 70,00,000 mentioned in the email.” However, the learned assessing officer failed to mention as to how Shri Harvansh Chawla was beneficiary of the said amount. The observation of the learned assessing officer is purely based on presumption, conjecture and surmises and the addition made on such presumption basis is not permissible in the eye of law. The relevant case laws are discussed in Para 1.2 of this submission.
That in email dated 19-12-2007 addressed to Mr. Chawla sent by Shri Michael P Boettcher, there is no reference of USD 70,00,000 but it was mentioned in the email dated 22-11-2007 sent by Shri Ivo Mujjiser to Shri Narinder Grover. Further, the appellant has no connection either with Shri Ivo Mujjiser or with Shri Narinder Grover (except Shri Narender Grover used the appellant’ s official server for professional requirement in connection with appellant’s client M/s. Storm International work). Hence, the appellant should not be punished by making the addition of Rs. 28,00,00,000 only because of allowing the official server to Shri Narender Grover. Hence, the addition of Rs. 28,00,00,000 made in appellant case is highly unjustified and the same is liable to be deleted.
-That in the email dated 22-11-2007, it is mentioned, “the total have been wired in 6 different amounts to the three bank accounts as you have instructed.” As per email, the aforesaid amount has been stated to be deposited in three bank accounts. In fact, it was matter of enquiry in which Bank accounts the said sum have gone. The learned assessing officer instead of making a detailed enquiry and ascertaining in whose Bank accounts the said sum was actually deposited, he chose to make the addition in appellant case, though the appellant bank account was examined by the learned assessing officer and the said sum was not found to be deposited. The learned assessing officer made his job over by making the addition of Rs. 28,00,00,000 in the ease of appellant, though, there was no evidence against the appellant. In substance, the appellant did not receive the said sum USD 70,00,000 equivalent to Rs. 28,00,00,000. Thus, the addition of Rs. 28,00,00,000 is not justified. Hence your goodself is requested to kindly delete the said addition.
 That in response to Show Cause Notice, dated 13-12-2010 para 2 & 4 the appellant had submitted following explanations before the learned assessing officer :–
“That in para 2 of Show Cause Notice, dated 13-12-2010, you have mentioned “In the email conversation there is mention of remittance of $70,00,000 on the instruction of Shri Narender Grover. Shri Narender Grover also acknowledges the receipt of this money.” This suggest that the assessee did not receive any money and he was also not responsible for the receipt of $70,00,000 by Shri Narender Grover as both are independent persons.
That in para 4 of show cause notice it is mentioned that the money was received with the knowledge of Shri Harvash P Chawla (assesseee) – Though there was no evidence about the knowledge of the assessee yet mere keeping the knowledge of receiving the money by some independent person (not an agent) does not make the assessee responsible for any taxation.”
That in respect of aforesaid reply, the learned assessing officer in para 3.7 mentioned, the explanation of assessee is not acceptable.
The assessee has merely denied that the money was received in his bank accounts or in the accounts of any of his concerns. It is given fact that no sane person would receive unaccounted income in his accounts or in the accounts of any of the concern related to him. On going through the learned assessing officer observation, it is evident that the appellant, has all along denied the receipt of Rs. 28,00,00,000 either by him directly or by anybody else on his behalf The learned assessing officer has also admitted that the said amount has neither gone to his bank account nor in his related concern. Since the amount of Rs. 28,00,00,000 was neither received by the appellant nor by his related concerns, it was onus on the learned assessing officer to prove that where such amount had gone and how the appellant became the owner of that amount. Further, there is no evidence to prove that the said sum of Rs. 28,00,00.000 have been deposited to the account of any benami person of the appellant. Further, the learned assessing officer failed to prove that the income of Rs. 28,00,00,000 was accrued in favour of the appellant Since, the income of Rs. 28,00,00,000 was neither received nor accrued in favour of the appellant, no addition can be made in appellant case. In this situation, the addition of Rs. 28,00,00,000 was not justified and the same is liable to be deleted.
  1. It was further explained as under :–
Legal Position of the printout of the E-mails
“(a) That as mentioned in earlier para that the disputed printout of the emails was not found and seized from the premises of the appellant but it was forwarded by the Sikkim Vigilance Police to the Investigation Wing. In turn, it was forwarded to the learned assessing officer. Hence, the legal presumption as prescribed under section 132(4A) is not applicable against the appellant. Further, it is already explained in the earlier para of this submission that out of aforesaid disputed emails, no email was sent by the appellant. Now, the question arises about the legal status of the email printouts forwarded by Sikkim Vigilance Police. In this regard, the appellant during the course of assessment proceeding has submitted detailed explanation dated 20-12-2010 and the learned assessing officer has also quoted the certain portion of the said explanation in the assessment order. In the said explanation dated 20-12-2010, certain case laws (including the cases decided by the Delhi ITAT. Hon’ble Delhi High Court and also by Hon’ble Supreme Court) have been quoted explaining the; legal position of the disputed printouts of the email. However, the learned assessing officer did not consider the case laws under reference as he neither accepted the ratio of these cases nor rejected the same in the assessment order. In fact, the learned assessing officer kept mum with reference to the case laws mentioned in the explanation dated 20-12-2010. Hence, the learned assessing officer being quasi judicial authority was not justified ignoring the case laws as quoted in the written submission and making the addition of Rs. 28,00,00,000. The addition made by learned assessing officer was against the principle laid by the Delhi ITAT, Jurisdictional High Court and by the Hon’ble Apex Court, which were binding in nature.
Hence, the addition of Rs. 28,00,00,000 is liable to be deleted.
(b) That in the light of copy of explanation dated 20-12-2010 enclosed as Annexure-1 submitted before the learned assessing officer, it is brought to your kind notice that the disputed printout of email was neither signed nor acknowledged by the appellant. Hence, it was a dumb document and in the light of judicial pronouncements, no addition can be made merely and exclusively on the basis of such dumb document without having any supporting evidence. Since in the Letter, dated 20-12-2010 the detailed description about the case laws have already been given and such letter is enclosed with this submission, there is no need to repeat the same. The appellant rely on following case laws :–
(a) Atul Kumar Jain v. DCIT (1999) 64 TTJ 768 (Del) : 1999 TaxPub(DT) 0884 (Del-Trib)
(a) Ramli Dayawal & Sons Pvt. Ltd. v. Invert Import AIR 1981 SC 2085
(b) Mohamad Yusuf v. D & Others AIR 1968 BOB 112
(c) CBI v. V.C. Shukla & Other JT (1998) 2 SC 172;
(b) Dy. CIT v. Krorilal Aggarwal (1994) SOM (Jab) 393 : 1994 TaxPub(DT) 0888 (Jab-Trib)
(c) Ashwani Kumar v. ITO (1992) 42 TTJ (Delhi) 644 : 1991 TaxPub(DT) 1532 (Del-Trib)
(d) CIT v. Girish Chaudhary (2008) 296 ITR 619 (Delhi) : 2008 TaxPub(DT) 0692 (Del-HC)
(e) Amarjit Singh Bakshi (HUF) v. ACIT (2003) 263 ITR 75 (Delhi) : 2003 TaxPub(DT) 1327 (Del-Trib)
(f) Bansal Strips Pvt. Ltd. v. ACIT (2006) 100 TTJ (Del) 665 : 2006 TaxPub(DT) 1290 (Del-Trib)
(g) Swadeshi Cotton Mills Co. Ltd. v. ITO 1976 CTR (All) 6
(h) Dhakeshwari Cotton Mills Ltd. v. CIT (1954) 26 ITR 775 (SC) : 1954 TaxPub(DT) 0123 (SC)
(i) CIT v. Ravi Kant Jain (2001) 167 CTR (Del) 566 : 2001 TaxPub(DT) 1243 (Del-HC)
(j) CIT v. P V Kalyan Sundram (2006) 203 CTR (Mad) 449 : 1993 TaxPub(DT) 1130 (Ori-HC)
(k) CIT v. Kailash Chand Sharma (2005) 198 CTR (Raj) 201 : 2005 TaxPub(DT) 0359 (Raj-HC)
(l) S.R. Koshti v. CIT (2005) 193 CTR (Guj) 518 : 2005 TaxPub(DT) 1136 (Guj-HC)
No addition on the basis of presumption
(a) That in the case of appellant, there is neither any direct evidence for the receipt of Rs. 28,00,00,000 nor any circumstantial evidence suggesting the appellant as beneficiary of that amount. In fact, the addition in appellant case was made on the basis presumption, surmises and conjecture, which is not permissible in the eye of law. The learned ITAT, Delhi “A” Bench, Bansal Strips Pvt. Ltd. v. ACIT (2006) 100 TTJ (Del) 665 : 2006 TaxPub(DT) 1290 (Del-Trib) relying on the decisions of Swadeshi Cotton Mills Co. Ltd. v. ITO 1976 CTR (All) 6 and Dhakeshwari Cotton Mills Ltd. v. CIT (1954) 26 ITR 775 (SC) : 1954 TaxPub(DT) 0123 (SC) held that the assessing officer cannot draw his inference on the basis of suspicion, conjectures and surmises. The assessing officer should act in the judicial manner, proceed with the judicial spirit and come to a judicial conclusion. For the sake of convenience of your kind perusal, the relevant portion of the finding is reproduced below :–
“While completing an assessment the assessing officer is not a Court. He is also not hound by technical rules of evidence. He may consider material which would be wholly inadmissible in a Court of law.
He may draw his conclusion and inferences on the cumulative effect of various circumstances based upon the test of human probability. At the same time though technical rules of evidence do not apply, the assessing officer is bound by the principles of natural justice. He cannot draw his inferences on the basis of suspicion, conjectures and surmises. Suspicion howsoever strong, cannot take place of the material in support of findings of the assessing officer. The assessing officer should art in the judicial manner, proceed with the judicial spirit and come to a judicial conclusion.–Swadeshi Cotton Mills Co. Ltd. v. ITO 1976 CTR (All) 6 : (1978) 112 ITR 1038 (All) : 1978 TaxPub(DT) 0283 (All-HC) and Dhakeshwari Cotton Mills Ltd. v. CIT (1954) 26 ITR 775 (SC) : 1954 TaxPub(DT) 0123 (SC) applied.”
In the light of facts and circumstances of the case, legal provision and judicial pronouncements, it is brought to your kind notice that the addition of Rs. 28,00,00,000 was made only on the basis of printout of emails exchange which was seized from the premises of one Shri Kunwar Omkar Singh and not from the appellant premises. The said printout of email was forwarded by the Sikkim Vigilance Police to the DIT(Inv), New Delhi who forwarded the same to the learned assessing officer Further, the disputed email exchange was held between Shri Michael Boccoher and Shri Narender Grover, who were neither appellant’ s agent nor working on behalf of the appellant. Shri Narender Grover has sent the email by misusing the official server of the appellant, when he was working in appellant office in order to professional practice and requirement in connection with M/s. Storm International case (appellant’s client). Thus, the appellant neither sent any email nor he admitted the contents of any email. Moreover, sending the email by Shri Grover by misusing the official server of appellant may not be basis for the addition in appellant case, particularly when the appellant books of accounts including the bank account was examined and appellant’ s statement was recorded on oath and no adverse evidence was found by the learned assessing officer. Since, the appellant neither received the disputed amount of Rs. 28,00,00,000 nor it was accrued in appellant favour, no addition can be made merely on the basis of printout of email seized from the residence of a third person and forwarded by the Sikkim Vigilance Police. In the light of judicial pronouncements, which have been discussed in the written explanation dated 20-12-2010 enclosed with this submission, the said printout of email was a dumb document and no addition can be made on the basis of such dumb document without having any supporting evidences. Since in appellant’ s case there is no evidence either for the receipt of Rs. 28,00,00,000 or for the accrual of income, thus, the addition for such amount was neither legal nor justified. Hence, your goodself is requested to kindly delete the addition of Rs. 28,00,00,000.
  1. The assessee further argued that, —
(a) The print out of the email (under dispute) was not seized under section 132 from the assessee’ s premises. Hence, no presumption under section 132(4A) is applicable against the assessee.
(b) The assessee’ s statement was recorded on oath under section 131(1) with reference to such print out of email who denied either to receipt of money or sending of email. The statement on oath has evidentiary are rebutted with the help of supporting evidences.
(c) The person from whom such print out of email was seized, was liable to explain and not the assessee.
(d) The assessee is not involved in email exchange; no action is required to be taken against the assessee.
(e) The assessee being law abiding person appeared before the learned assessing officer and his statement on oath was recorded and thereafter the addition of Rs. 28,00,00,000 was made. The persons who did not comply the summons, no action have been taken against them.
(f) In email no where it is mentioned that he assessee has received USD 70,00,000. On the contrary, through email dated 22-11-2007 it is evident that Shri IVO Mujjser transferred USD 70,00,000 in six different amounts in three banks.
(g) Further, through email dated 26-11-2007 Shri Narendra Grover confirmed the receipt of said amount.
(h) These two emails in which the transaction of USD 70,00,000 has been, mentioned, was neither sent nor received by the assessee but the sender is Mr. IVO Mujjser and the receiver is Mr. Narendra Grover both are persons and they are neither agent of the assessee nor they were working for and on the behalf of the assessee.
(i) In third and last email dated 19-12-2007 addressed to Mr. Chawla (specific name of the assessee is not mentioned), there is denial by Mr. Chawla about the receipt of any payment. Though the print out of the email is not a primary evidence, yet in case, it is treated as primary evidence, it is in favor of the assessee as it suggested that Mr. Chawla did not receive any money and both the payer and the payee are the independent persons.
(j) The assessee in response to Question No. 6, explained that M/s. Storm International was assessee’s client and Shri Narendra Grover was using his office on behalf of said client for certain period.
(k) During that period Shri Narendra Grover might have sent the email misusing the assessee’s email id. However, no addition can be made merely on the reason of sending the email assessee’ s email id.
(l) In email dated 19-12-2007 addressed to Mr. Chawla, there is no inference of USD 70,00,000.
(m) The learned assessing officer observed that no sane person would receive unaccounted money in bank account but he forgot that in email dated 22-11-2007 it is specifically mentioned that the amount was wired in three different bank accounts. Thus, there is contradiction in learned assessing officer’s observation and content of email.
(n) In show cause notice, the learned assessing officer pointed out that money was transferred with the knowledge of the assessee. First of all, there is no evidence about the knowledge of the assessee; secondly, no addition can be made merely on the basis of keeping the knowledge of transfer of money.
I. In legal term, the printout of email is neither the books of accounts nor a document as mentioned under section 132(4A) of the Income Tax Act, 1961.
J. The said print out of email is neither on pad of the assessee nor written nor signed by him. In other words, it is head less and leg less and it is not self speaking. In this situation, it is a dumb document.
K. In the light of judicial pronouncements, cited in the written submission, no addition can be made merely and exclusively on the basis of dumb document without having supporting evidence.
L. The said dumb document (print out of email) was seized from the premises of the third person and in the light of number of judicial pronouncements, cited in the written submission; no addition can be made on the basis of the documents seized from third person.
M. There is no legal provision for making the addition of Rs. 28,00,00,000 merely on the basis of email print out seized from a third person on following reasons :–
(a) Section 4 is a charging section which speaks about the ‘Total Income’. The term Total Income’ has been defined under section 2(45) which refer to section 5 of the Income Tax Act, 1961.
(b) Section 5 refers about either receipt of income or accrual of income. In the instant case of the assessee, there is no evidence that the assessee has received the money. On the contrary, in email dated 19-12-2007 Mr. Chawla has denied the receipt of the money.
(c) Further there is no evidence that there was accrual of any income in favor of the assessee. In absence of any receipt or accrual of income, no addition can be made in case of the assessee.
(d) Without prejudice, if it is presumed that the amount was received by the assessee even then, no addition can be made of the gross amount as there is description of payment in email for sake of licenses of two casinos. Once the amount is presumed to be received, it can also be presumed to have been paid. Thus, the incoming and the outgoing is the same and there is zero income in this transaction. Hence, no addition is called for.
(e) Further, the provision of section 68 is not applicable in this case as there is no cash credit.
(f) The provision of section 69 is not applicable as there is no unexplained investment.
(g) Similarly, the provision of section 69A is not applicable as the assessee is not found to be owner of any money, etc.
(h) The provision of section 69B is not applicable as there is no unexplained investment; hence there is no question of not fully recording in the books of accounts.
(i) The provision of section 69C is not applicable as there is no unexplained expenditure.
(j) The provision of section 69D is not applicable as there is no question of borrowed amount or repaid on hundi.”
  1. We find from the records, the Commissioner (Appeals)-XXVIII, New Delhi videF.No. Commissioner (Appeals)-XXVIII/2013-14/341, dated 24-2-2014, sent a letter to the Additional Commissioner of Income Tax, Range-37, New Delhi, stating as under :–
“Kindly refer to your Letter F.No. Addl.CIT/Range-37/2013-14/965, dated 24-2-2014 vide which you have forwarded the remand report of the assessing officer in the above referred appeals. The remand report has been forwarded without any comments on your part. Keeping in view the fact that substantial revenue is involved in the case you are directed to give detailed comments on the followings :–
  1. Evidence other than the e-mails in respect of receipt of USD 70 lakhs allegedly received by Shri H.P. Chawla.
  2. Authenticity and the evidentiary value of the e-mails seized by Sikkim Vigilance Police from the residence of Shri Kunwar Qnkar Singh.
  3. Copy of the letter issued to the assessee for producing Shri Narinder Grover.
  4. Efforts if any made to confirm the transaction from Michael Boettcher of Storm International and Shri Ivo Muiijser.
  5. Copy of the documents regarding details of US Dollars 7,59,485 from SBI Gantok arid other documents including statement of account relating to Kanchan Distilleries Pvt. Ltd. forwarded later by Director cum Commissioner of Vigilance Department, Sikkim reference to which is contained in the Commissioner (Appeals) Order for assessment year 2007-08 (Letter No. RC-21 & 22/2008/SVPS/365 dated 17-8-2009).
  6. Evidence that the above documents have been confronted to the appellant.
  7. Comments in detail on the identity, genuineness and credit worthiness of each person who have allegedly advanced loan to Shri Harvansh P. Chawla and addition regarding which have been made by the assessing officer under section 68 and whether you are satisfied or not regarding the source of the unsecured loans claimed by the appellant as per the bank account furnished by the appellant and forwarded by you.
  8. How have share application money been received from abroad in case of Pvt. Ltd. Company, i.e., M/s. Karina Hotels Pvt. Ltd., M/s. Storm Hotels Pvt. Ltd. and M/s. K R Chawla Consulting Pvt. Ltd., You are also required to specify that if the amount received in foreign currency is not share application money then what is the nature of the foreign currency receipt and whether these are in any way connected to the amount referred to in the e-mails, addition in respect of which has been made in assessment year 2008-09 in the case of the appellant.
  9. Whether there is any amount paid by Storm International to Shri Harvansh P. Chawla for providing legal consultancy, if so, the evidence produced by the assessee in this regard.
  10. In the assessment order it has been claimed time and again against addition made in respect of unsecured loans that the party did not have the capacity to finance the loan arid the loan has been financed through unaccounted money of the appellant by creating layer of intermediaries. Kindly give your comments on these statements of the assessing officer.
The detailed report should be received without fail by 26-2-2014 in view of the fact that it is a high demand case which has been pending for a long time.”
  1. We find that, a report was sent to the learned Commissioner (Appeals)-XXVIII, New Delhi by the assessing officer, i.e., Asstt. Commissioner of Income Tax, Circle-37(1), New Delhi videF.No. ACIT/Cir-37(1)/2013-14/1884, dated 26-2-2014, in response to the above mentioned Letter, dated 24-2-2014 of the learned Commissioner (Appeals), stating as under :–
“Kindly refer to your Letter No. Commissioner (Appeals)-XXVIII/2013-14/341, dated 24-2-2014 on the above mentioned subject.
  1. In this connection, at the outset, it is submitted that the Remand Report sent vide thisOffice Letter, dated 24-2-2014as well as the present report has been prepared under the continuous guidance and supervision of the Addl. CIT, Range-37.
  2. In addition to the comments already forwarded vide the above referred Remand Report dated 24-2-2014, following para-wise comments in response to the queries raised are being submitted:
3.1 As regards evidence related to the e- mail in respect of receipt of US$ 7 million, it is stated that as per law, the onus is on the assessee to rebut the presumptions under section 132(4A) of the Act. As the assessee has failed to discharge his onus on this issue, the conclusion that the assessee himself is beneficiary of the amount specified in the e-mail is inescapable.
3.2 It has been the stand of Revenue that the e- mails seized by Sikkim Vigilance Police are authentic and genuine source of information, and in absence of any evidence to the contrary, it may not be appropriate to doubt the veracity of information received from an independent, law enforcing agency. In any case, the onus is on the assessee to disprove the presumption in this regard;
3.3 As per para 3.3 of the assessment order for assessment year 2008-09, summons were issued to Shri Narinder Grover to the address of M/s. K.R. Chawla & Co. a law firm owned by the assessee. These summons were returned by the assessee’s law firm with the comments that Shri Narinder Grover was no longer available there, and they did not have any contact with him or his forwarding address. Thus, it is clear that the assessee was given sufficient opportunity to produce Shri Narinder Grover, if he desired to do so.
3.4 As regards efforts made to confirm the transaction from Michael Boettcher and Ivo Mujjser, it is stated that the assessee was confronted, with the documents and seized material during the assessment proceedings, and no plausible explanation could, be given by him to rebut the presumption of being the beneficiary of the amount in question. No further confirmation was required in the circumstances of the case.
3.5 In connection to the documents regarding details of US$ 759,485 from SBI Gangtok and other documents including statement of account relating to Kanchan Distilleries Pvt. Ltd. forwarded later by Director cum Commissioner of Vigilance Department, Sikkim reference to which is contained in the Commissioner (Appeals) order for assessment year 2007-08. (Letter No. RC-21 & 22/2008/SVPS/365, dated 17-8-2009) it is submitted that no such letter is found in the assessment file forwarded by the Central Circle and available with this office. It may be pertinent to mention here that this case was completed in Central Circle and the assessment folder was later transferred to the present jurisdiction, but the seized record has still not been transferred from the Central Circle. Efforts are being made to get the seized material also transferred. It is plausible that the desired letter may be a part of seized material. It may not be out of place to mention that a copy of the same letter (As mentioned, in the Commissioner (Appeals)’s order in the case of the assessee himself for assessment year 2007-08) was forwarded to the office of Commissioner (Appeals) by the ACIT, Central Circle-13 during the appellate proceedings in case of the assessee for the assessment year 2007-08.
3.6 It is reiterated that during the assessment proceedings, the assessee was confronted with all the documentary evidences, including the seized material, available. A detailed statement of the assessee was also recorded on oath during the assessment proceedings. As far as any evidence regarding the fact that the above documents have been confronted to the appellant is concerned, it is relevant mention that in the Commissioner (Appeals)’s order in the case of the assessee himself for assessment year 2007-08 in para No. 16 it is mentioned that the ACIT Central Cirlce-13 submitted his report to the Commissioner (Appeals). The point 5 of the report of the ACIT mentions about such letter. The Commissioner (Appeals) in para 17 mentions that “the A.R. of the appellant was given reports of the assessing officer for rejoinder”. A bare perusal of this order of Commissioner (Appeals) leads to the conclusion that the assessee may would have been confronted with these documents. Since, all these records must be available in the office of the Commissioner (Appeals) a conclusive inference can only be drawn after going through the same.
3.7 As regards the unsecured loans claimed to have been raised by the assessee, it may be recalled that in the assessment order, it is pointed out that the lenders in question did not have enough means to justify such high level of lending to the assessee. Nothing has so far come to the notice to alter the stand of Revenue on this account.
3.8 It is submitted that the query regarding receipt of Share Application Money from abroad appears to be not much related to the present case. The contention of Revenue has been that the lenders which advanced unsecured, loans to the assessee did not have sufficient means, and as such, it was assessee’ s own money which was being routed through. Nature of entry in the hands of Pvt. Ltd. Companies (the lenders) does not, in any way affect the above proposition. However, in case any new line of investigation is contemplated, the undersigned, would be most willing to carry out further investigation to the extent possible. It may not be out of place to mention that the undersigned does not have jurisdiction of the companies mentioned above.
3.9 As regards any amount paid to M/s. Strom International, it is stated that even if some amount was paid by the assessee to M/s. Strom International, it does not affect the Revenue’s case in any way. The question whether M/s. Storm International was a client of the assessee or not is not related to the Revenue’s case brought out in para 3.10, 3.11 and 3.12 of the assessment order for assessment year 2008-09. However, in case any new line of investigation is contemplated, the undersigned would be most willing to carry out further investigation to the extent possible.
3.10 The issue of creditworthiness of the lenders has already been dealt with in para 3.7 and 3.8 above.
  1. It is also submitted that the issue raised in the letter of Commissioner (Appeals) dated 24-2-2014 have been discussed at length in the assessment order, and the same is relied upon once again. However, if Commissioner (Appeals) so desires, the entire assessment record can be made available in support of various averments made in the assessment orders, for perusal and necessary verification. Further, if Commissioner (Appeals) desires to pursue a fresh line of investigation, in connection with the Unsecured Loans, not yet explored by Revenue the undersigned would be most willing to carry out further investigation to the extent possible. Issuing specific instructions to the relevant assessing officers might also be considered.
  2. It is also humbly, submitted that only one day time was given to prepare the remand report. It may be appreciated that at this state of the financial year, with a large number of time banning matters pending for disposal and this being a. high demand case, the time given was grossly inadequate.”
  3. Having gone through the submissions of the assessee after getting the various reports from the assessing officer, the learned Commissioner (Appeals) held as under :–
“8.41 Perusal of the entire facts of the case shows that the assessing officer has relied upon the email sent by Shri Michael Boettcher, President and CEO, M/s. Storm International B.V. to Shri Harvansh P Chawla, the Appellant, the fact that the printouts of emails were found from the premises of Shri Kunwar Onkar Singh, Managing Director of M/s. Sikkim Distilleries Ltd. and that Shri Narinder Grover has acknowledged the receipt of the payments. Though other than the fact that an email was sent by Shri Michael Boettcher to Shri Harvansh P Chawla, the other two aspects do not involve Shri Harvansh P Chawla, the assessing officer has linked each of the three aspects to the Appellant on the basis that the Appellant, i.e., Shri Harvansh P Chawla was associated with M/s. Storm International B.V., Shri Kunwar Onkar Singh and with Shri Narinder Grover in different ways.
8.42 Each aspect of the case was examined. No doubt, Shri Michael Boettcher sent an email to the Appellant in which there was discussion about some payments. However, even from the email, it is not clear as to what payment was even alleged to be paid to the Appellant. The contents of the email from Shri Michael Boettcher to Shri Harvansh P Chawla dated 19-12-2007, as reproduced in Para 3.5 of the Assessment Order 28-12-2010 are as under :–
“Mr. Chawla,
Mr. Singh the minister from Sikkim called me today and advised me that you told him you had not received any payment from Storm for the casino license(s).
I tried to reach you by telephone without success. I do not have to tell you how disappointed I am especially you have had the opportunity in build something unique and special that would have put Sikkim firmly on the map as well as creating increased, employment and visions in the region based on the investments by Storm as well as the possibility of a very positive future business together.
I am also advising you on behalf of Mr. Singh to sent $2.5 m to Mr. Singh tomorrow. If you not he will (quite correctly in my opinion) to withdraw the casino licence.
In the case of the casino license being withdrawn you will be required to return to Storm the full amount of the sum we paid to you plus any interest incurred.
Yours sincerely,
Michael Boettcher
PRESIDENT & CEO
Storm International B.V.
www.storrnbv.com”
8.43 A careful perusal of the above email, which is the most crucial document relied upon by the assessing officer to conclude that the amount of 7 Million US Dollars was received by the Appellant shows that :–
(a) The email mentions that Mr. Singh, who is stated to be a Minister in Sikkim has told the author of the email, i.e., Shri Michael Boettcher that the recipient of the email, i.e., Shri Harvansh P Chawla told the Minister that he had not received any payment from Storm.
(b) The email does not specifically mention the amount of $ 7 Million or even indirectly indicate as to what was the specific amount alleged to be paid.
(c) The email does allege that some payment had been made by M/s. Storm, as it states that the recipient of the email will have to return the full amount of the sum paid plus Interest, but such ‘ full amount’ is not specified.
(d) The email advises the recipient to send $ 2.5 m to Mr. Singh, who is stated to be a Minister in Sikkim.
8.44 From the above it is seen that rather than proving that any payment was received by Shri Harvansh P Chawla, the email rather informs about the denial by him, regarding having received any payment at all. Further, the email does not specifically mention as to what exactly was the specific or full amount alleged by M/s. Storm to be paid and denied to have been received by Shri Harvansh P Chawla. The email does advise the recipient to send an amount of $ 2.5 m, which apparently stands for US Dollars 25,00,000, but such payment is to be made to Mr. Singh, who is a Minister in Sikkim.
8.45 The Appellant, during the assessment proceedings was summoned under section 131 of the Income Tax Act, 1961, in response to which, he appeared before the assessing officer on 17-8-2010 and his Statement on Oath was recorded. In question number 9 of the Statement, the Appellant was confronted regarding the email and the assessing officer enquired that from the email, it appears that the money had been received with the knowledge of the Appellant and had been entrusted to him by M/s. Storm International and required him to comment. In his response, the Appellant stated that neither he nor his family nor any of his associate concerns had received any money from M/s. Storm International nor he was entrusted with any money by M/s. Storm International or Michael Boettcher. The Appellant further stated that the email in question was sent erroneously or in mistaken belief. He further, averred that neither he nor his family or associates Firms had received the money could be verified from there Bank Statements.
8.46 Perusal of the Assessment Order shows that the assessing officer rejected the contentions of the Appellant and has solely relied upon the abovementioned email from Shri Michael Boettcher to hold that Appellant had received the amount of $ 7 Million. Such conclusion has been drawn on the basis of his logic in Para 3.7 and 3.8 on Page 6 of the Assessment Order as under :–
(i) “no sane person would receive unaccounted income in his account or in the accounts of any of the concerns related to him”, (observation in Para 3.7 of the Assessment Order)
(ii) “the email clearly fixes the liability to pay back on Shri Chawla in the event of licenses been cancelled” (observation in Para 3.8 of the Assessment Order)
(iii) “there is also a mention of the repayment alongwith Interest” (observation in Para 3.8 of the Assessment Order)
8.47 On the basis of the above observations, the learned assessing officer has concluded in Para 3.8 of the Assessment Order that “Thus, Shri Chawla is directly or indirectly the beneficiary of the amount of USD 7,000,000 mentioned in the email”.
8.48 An analysis of each of the above three observations and the conclusion by the assessing officer shows that there was absolutely no justification at all for such conclusion. No doubt, it is unlikely that an intelligent person would receive Unaccounted Income in his account s or in the accounts of any of the concerns related to him, but it is a fact that every year numerous cases are detected by the Income Tax Department where Unaccounted Income is received in the accounts of a person and in accounts of related concerns. The receipt of such Unaccounted Income in the Bank Account of the person concerned or in the Bank Accounts of his related concerns would rather be compulsory where the payment was being received through Banking Channels. In the present case, the allegation is that the payments in question amounting to $ 70, 00,000 (US Dollars 7 Million) was sent in 6 different amounts to 3 different Bank Accounts. In such a situation, it is obvious that the payments would be received in some Bank Accounts, if the payment had actually been sent. The documents in question only show that there was an allegation or claim that the amount of US Dollars 7 Million was sent to 3 different Bank Accounts. In view of the nature of the allegations, it is obvious that it is only some Bank Accounts in which the amounts paid, if any, would be received. In such a situation, if there is an allegation against the Appellant that he received the amounts paid, the onus definitely lies upon the person claiming so, to show the link between the amounts received in the Bank Accounts with the Appellant, or the link of the Bank Accounts with some family member or associated concern or firm of the Appellant. If there is no linkage between the Appellant or any of his family members or any associated concern or firm etc. with any specific amount received in any specific Bank Account, then it would be illogical to presume that the amount sent through a Bank Account reached the Appellant.
8.49 The learned assessing officer has observed in Para 3.8 of page 6 of the Assessment Order that “the email clearly fixes the liability to pay back on Shri Chawla in the event of licenses been cancelled” and that “there is also a mention of the repayment alongwith Interest”. However, these are claims or allegations made by the email sent to the Appellant. There is no confirmation from the Appellant regarding the claim that any payment was received by him. Further, the assessing officer has ignored a very relevant aspect of the email that the opening lines of the email very clearly record that the Appellant had denied having receipt any payment at all from M/s. Storm for the Casino Licenses. It is stated in the opening part of the email as under :–
“Mr. Singh the minister from Sikkim called me today and advised me that you told him you had not received any payment from Storm for the casino license(s).”
8.50 Thus the email itself clearly records the denial of the Appellant of having received any payment from M/s. Storm for the Casino Licenses. Thus we have a situation where rather than having a confirmation from the Appellant of having received any payment, we have a clear denial from the Appellant recorded in the email itself. In such a situation, merely because the email required the Appellant to pay back the ‘full amount’ and to pay it back ‘alongwith Interest’, or advised the Appellant to pay $ 2.5 m to a certain Minister in Sikkim by the name of Mr. Singh, the email by itself does not establish any allegation, and rather it is only an allegation on the Appellant. In the absence of any corroboration, it is only an ‘Unsubstantiated Allegation’.
8.51 The learned assessing officer on the basis of the above observations in Para 3.7 and 3.8 of the Assessment Order has gone on to draw the conclusion that :–
“Thus, Shri Chawla is directly or indirectly the beneficiary of the amount of USD 7,000,000 mentioned in the email.”
8.52 It is seen that the above conclusion is not at all justified in view of the discussion in Para 8.43 to 8.45 above, as each of the 3 grounds (mentioned in Para 8.41) on the basis of which the assessing officer has drawn such a conclusion have been shown to be baseless. Whether any such amount was actually sent or merely a claim was made through email, without the amount having been actually sent, is a matter of investigation to prove as to what exactly was the amount and as to who received the amount.
8.53 Further, a careful perusal of the email in question shows that there is no mention at all of any specific amount having been directly or indirectly been given to Shri Chawla, as clearly pointed out above in Para 8.38 and Para 8.39. In such a situation, the claim of the assessing officer that the Appellant was directly or indirectly the beneficiary of the amount of USD 7,000,000 mentioned in the email, is not only baseless, but is rather a claim which is totally contrary to the facts, as what to say of USD 7 Million, there is no mention of any specific amount having been given in the email, as clearly evident from the email reproduced in Para 3.5 of the Assessment Order which has been re-reproduced above in Para 8.37 above and as discussed in Para 8.38 and 8.39 above. Thus the assessing officer has clearly failed to appreciate the true facts of the case.
8.54 Another aspect of the conclusion drawn by the assessing officer in Para 3.8 of the Assessment Order is that the assessing officer has held that “… Shri Chawla is directly or indirectly the beneficiary…”. From such conclusion by the assessing officer, it is obvious that the assessing officer himself is not sure whether the Appellant was a beneficiary directly or indirectly. Once the assessing officer desires to hold that an assessee was a beneficiary, then there should be clarity as to whether the assessee was a direct beneficiary or any indirect beneficiary. In the present case, the assessing officer could not show that the assessee was a direct beneficiary or an indirect beneficiary and has still given the finding that the assessee was a beneficiary. The doubt of the assessing officer is well recorded in the finding that the Appellant was “directly or indirectly the beneficiary”, and it goes on to further show that the assessing officer has failed to appreciate the facts of the case.
8.55 In fact, the above findings and conclusion of the assessing officer show that once the allegation had been put upon the assessee that he had received some Unaccounted Money, the assessing officer rushed to conclude that the assessee had indeed received that money, and in that process, ignored the basic facts of the case. If there is no evidence that any such amount was actually sent, then drawing conclusions merely on the basis of emails that such amount was sent, and that once it was sent, it would have been received by someone, and that someone could have been the Appellant, is certainly a very farfetched logic, and rather it goes beyond the realm of logic towards irrationality and speculation.
8.56 It is noteworthy that the documents in question, i.e., the printouts of the emails were seized by the Sikkim Vigilance Police from the residence of Shri Kunwar Onkar Singh, the Managing Director of M/s. Sikkim Distilleries Ltd. The assessing officer has observed in the Assessment Order that Shri Kunwar Onkar Singh did not comply to Summons under section 131 issued to him.
It has been further observed by the assessing officer in Para 3.4 of the Assessment Order that Shri Harvansh P Chawla, the Appellant, in his Statement recorded by the assessing officer on 17-8-2010 admitted that he knew Shri Kunwar Onkar Singh, who was the Managing Director of M/s. Sikkim Distilleries Ltd. and was interested in purchasing a Nursing Home at Noida and that he had given a Cheque of Rs. 55 Crores which was seized during the course of Search at the residence of the Appellant on 28-2-2007, as an expression of his serious interest in the deal, but the deal did not materialize and the Cheque was never presented and that the Nursing Home was still in the name of the Original Owner. Perusal of the Statement shows that Shri Kunwar Onkar Singh was introduced to the Appellant through a law firm called M/s. Norten Rose of London and that he, i.e., Shri Kunwar Onkar Singh further introduced the Appellant to M/s. Storm International B.V., and that the Appellant acted as a legal consultant to them while they were in the process of obtaining licences for Casinos India. Thus the Appellant has been able to show how and why he was in contact with the Parties involved in the emails. In fact, it was Shri Kunwar Onkar Singh himself who introduced the Appellant to M/s. Storm International B.V. In such a situation, the exchange of emails between those Parties and reference to the Appellant was not an extraordinary event. However, what was extraordinary was the claim by Shri Michael Boettcher, President & CEO of M/s. Storm International B.V. that “Mr. Singh, the Minister from Sikkim” had told Shri Michael Boettcher that the Appellant, i.e., Shri Harvansh P. Chawla had not received any payment from M/s. Storm International B.V., and that Shri Harvansh P. Chawla should “send $ 2.5 m to Mr. Singh” and that if the Casino License was withdrawn, the Appellant should “return to Storm the full amount of the sum we paid to you plus any interest incurred”.
8.57 An analysis of the Letter, dated 17-8-2009, No. RC-21 & 22/2008/S VPS/365 from the Senior Superintendent of Police, Sikkim Vigilance Police, Gangtok from the office of the Director-cum-Commissioner, Vigilance, Gangtok shows that it has been clearly stated that in the said email one Mr. Singh has been mentioned as a Minister from Sikkim. However, the Letter, dated 17-8-2009 itself makes it very clear that “there was no minister in Sikkim with the Surname Singh”.
8.58 From the above, it is clear that once there was no Minister in Sikkim with the Surname Singh, the claim by the above mentioned email from Shri Michael Boettcher that Mr. Singh, the Minister from Sikkim had called Shri Michael Boettcher was false or was the result of fraud or mistake, and also that there was no valid person to whom the Appellant or any other person could have given $ 2.5 m, i.e., 2.5 Million US Dollars.
8.59 In fact, the above mentioned Letter, dated 17-8-2009 itself again makes it very clear that the above mentioned Shri Kunwar Onkar Singh could have committed fraud or misrepresentation, as the letter states that “In all probability Shri Kunwar Onkar Singh might have posed himself as a Minister while contacting M/s. Storm International, Russia”.
8.60 In view of the above opinion expressed in the primary letter, i.e., the Letter, dated 17-8-2009 from the Sikkim Vigilance Police to the Director General of Income Tax (Vigilance), Delhi, it is clear that the Sikkim Vigilance Police itself was of the opinion that Shri Kunwar Onkar Singh was committing fraud upon M/s. Storm International, or at least that his conduct was dubious. In such a situation, it was quite likely that the persons coming in contact with the said person could be accused of wrongdoings, or having knowledge of things about which they knew nothing or of having possession of money or things about which they had no idea.
8.61 There is absolutely no doubt that there was no Minister Singh in Sikkim at that time, and whosoever discussed with M/s. Storm International posing as ‘Minister Singh from Sikkim’ was committing fraud and misrepresentation. The Letter, dated 17-8-2009 indicates that the Sikkim Vigilance Police was of the opinion that it was Shri Kunwar Onkar Singh who was the suspect. Whether such fraud and misrepresentation was committed by Shri Kunwar Onkar Singh (as strongly suspected by Sikkim Vigilance Police) or any other person is not relevant for deciding the issue in hand, as once it is clear that the person claiming to be ‘Minister Singh from Sikkim’ was committing fraud and misrepresentation, it is obvious that he would be making false claims, and any further claim made by M/s. Storm International (either as victim of such false claims or as a co-conspirator) on the basis of such false claims cannot be relied upon.
8.62 In view of the above discussion, it is clear that the email sent by Shri Michael Boettcher, President & CEO of M/s. Storm International B.V., to the Appellant, on which the entire case has been built up is not at all reliable. Further, in view of the absence of any confirmation by the recipient (the Appellant) and of any corroborative evidence, there was no justification at all for the conclusion that the Appellant had received the amount of 7 Million US Dollars. However, as pointed out above, even the assessing officer was not sure whether the amount had been received by the Appellant, as the conclusion was that the Appellant was “directly or indirectly the beneficiary of the amount of USD 7,000,000 mentioned in the email, which was a totally unjustified conclusion as discussed in Para 8.54 and 8.55 above.
8.63 The assessing officer has also stated in Para 3.8 that “If is a settled legal principal that in a situation where the evidence and preponderance of probability points against the assessee, the onus is on the assessee to disprove the evidence. The only way the assessee could have discharged the onus is by furnishing the names and other details of the beneficiaries.” However, as discussed above neither the evidence nor any preponderance of probability points against the assessee and hence the Onus was not upon the Appellant, it was rather upon the assessing officer, who in the absence of any direct evidence or material, money trail or Statement or any other factor against the Appellant has sought to conclude that an amount of $ 7 Million was received by the Appellant. The assessing officer has failed to discharge that onus.
8.64 The assessing officer has further mentioned that the Appellant has admitted that Shri Narinder Grover was using the office premises and infrastructure at his Law Firm M/s. K.R. Chawla and Co. and that he had even been allotted an email id on the internal server of the assessee’s Law Firm. The assessing officer has stated that “It is unlikely that a responsible lawyer like the assessee would let anyone used his office space and facilities without having the details regarding the background of that person”. However, it had been clarified by the Appellant at the assessment proceedings itself that Shri Narinder Grover was working on behalf of M/s. Storm International, who was Client of the Appellant, and that it was customary among the Law Firms to provide table space and communications facilities on temporary basis to Clients still they have their own setup, and that in a similar arrangement, Shri Narinder Grover was allowed to use the office facilities and the e-mail address. It was also stated by the Appellant that the use of these facilities was billed to the Client M/s. Storm International. The Appellant also informed that Shri Narinder Grover used to continuously work from the office of M/s. K.R. Chawla and Co. for the period starting a few days before Diwali, 2007 till December, 2007, and that after January 2008 he stopped coming to office. These facts were stated by the Appellant in reply to question 6 of his Statement, which has also been reproduced in the Assessment Order in Para 3.9.
Though the assessing officer has reproduced the information given by the Appellant, no further inquiry on the same has been conducted, nor any justification or reasoning for rejection has been given and the claims of the Appellant have been rejected outright stating that it was “unlikely that a responsible lawyer like the assessee would let anyone use…”. Here again, the claim of the Appellant has been rejected by the assessing officer, merely because in the opinion of the assessing officer, the allowing of use of office space and facilities was ‘unlikely’, thus making it clear that there was nothing definite, but only an ‘opinion’ that allowing of the use was ‘unlikely’. Even for such a conclusion, the assessing officer refers to the Appellant as a ‘responsible lawyer’, which is a contradictory comment, as on one hand in the opinion of the assessing officer, the Appellant is ‘responsible’, but on the other hand the assessing officer suspects him of irresponsible acts, and that too without any proper justification. It is seen that the use of the facilities of M/s. K.R. Chawla & Co. by Shri Narinder Grover was on behalf of M/s. Storm International B.V. and that the use of these facilities was billed to the Client M/s. Storm International B.V. Hence, the; drawing of any adverse inference against the Appellant was not at all justified.
8.65 In Para 3.11 of the Assessment Order the assessing officer has made the following observations, on the basis of which he has drawn final conclusions :–
  1. The assessee admitted the fact that the email from Mr. Michael Boettcher was received by him.
  2. The assessee accepted his association with M/s. Storm International B.V.
  3. The email clearly mentions that money has been received by the assessee and fixes the liability on him to pay back alongwith Interest in the event of Casino license being cancelled.
8.66 As discussed above, none of the above points can lead to the conclusion that the Appellant received any money. The Appellant was a legal consultant to M/s. Storm International B.V., which he has openly admitted, and was fully justified in view of his being a practicing Lawyer, and hence no adverse inference can be drawn on the basis of such association with M/s. Storm International B.Y. Further, Shri Michael Boettcher being the President & CEO of M/s. Storm International B.V. could be in communication with the Appellant and receiving an email from him was not at all extraordinary. The only extraordinary or suspicious issue amongst the above three observations of the assessing officer in Para 3.11 of the Assessment Order was the content of the email as per which there was an allegation that the Appellant had received some money (without specifying the amount received, when and how received), which has already been discussed above in detail from Para 8.43 to 8.62 above and the clear conclusion has been drawn that there was no reason to hold that the Appellant had received any money.
8.67 The assessing officer on the basis of the above observations in Para 3.11 of the Assessment Order has held that the evidence points to the assessee having received US Dollars 7 Million through Undisclosed sources, the Rupee equivalent of which being Rs. 28,00,00,000 was treated as his Undisclosed Income. As already discussed above, neither there was any evidence against the assessee nor there was any other material to show that the assessee had received the alleged amount of 7 Million US Dollars, nor any of the 3 observations prove any allegation against the Appellant.
8.68 Further, the Remand. Reports from the assessing officer and the comments/Reports from the Joint/Addl. Commissioner heading the Range only reiterate the stand of the assessing officer and there is nothing to add to the contentions and conclusions of the assessing officer. It has been mentioned in the Remand Report dated 26-2-2014 that it has been the stand of Revenue that the emails seized by Sikkim Vigilance Police are authentic and genuine source of information, and in the absence of any evidence to contrary, it may not be: appropriate to doubt the veracity of information received from an Independent Law Enforcing Agency. However, as discussed above, there is no evidence that any such amount was actually sent, and drawing conclusions merely on the basis of emails (which were neither confirmed by the Appellant, nor any corroborative evidence was found), that such amount was sent, and that once it was sent, it would have been received by someone, and that someone could have been the Appellant, is certainly in the realm, of irrationality and speculation. As already mentioned above, the Sikkim Vigilance Police itself has stated in the Letter, dated 17-8-2009 itself makes it very clear that “there was no minister in Sikkim with the Surname Singh”, and hence it is obvious that, the claim by the above mentioned email from Shri Michael Boettcher that Mr. Singh, the Minister from Sikkim had called Shri Michael Boettcher was false or was the result of fraud or mistake, and also that there was no valid person to whom the Appellant or any other person could have given $ 2.5 m, i.e., 2.5 Million US Dollars. The above mentioned Letter, dated 17-8-2009 itself again makes it very clear that the above mentioned Shri Kunwar Onkar Singh could have committed fraud or misrepresentation, as the letter states that ” In all probability Shri Kunwar Onkar Singh might have posed himself as a Minister while contacting M/s. Storm International, Russia”, from which it is clear that the Sikkim Vigilance Police itself was of the opinion that Shri Kunwar Onkar Singh was committing fraud upon M/s. Storm International, or at least that his conduct was dubious, and hence the allegation of M/s. Storm International on the basis of information/claims/allegations by Shri Kunwar Onkar Singh cannot at all taken to be authentic and genuine.
The Remand Report also states that the Onus was on the assessee to disprove the presumption against him. However, the emails were not found from the premise of the Appellant hence there was no presumption under section 132(4) of the Income Tax Act, 1961 against the Appellant, nor there was any other evidence or material which indicated presumption against the Appellant. In fact, the Onus was upon the assessing officer, as mentioned in Para 8.63 above, and he has failed to discharge the same.
8.69 In view of the above discussion, it is held that there is no justification for the claim that the Appellant received $ 7 Million. Accordingly, the addition of Rs. 28,00,00,000 as Undisclosed Income Hinder the head ‘Income from Other Sources’ is hereby deleted. Ground No. 2 of the appeal is hereby allowed.”
  1. We find that the learned Commissioner (Appeals) has analyzed each and every aspect of the allegations made the assessing officer called for reports, gone through the contents of the information received, the evidences before the revenue, the explanation of the assessee and the remand reports and came to a conclusion that there is no liabilities on the part of the assessee and the revenue could not bring about any cogent material to prove the allegations. Hence, we decline to interfere with the order of the learned Commissioner (Appeals).
Unsecured Loans:
  1. During the year, the assessee received unsecured loans from various parties as mentioned under :–
Loans received from
Received
M/s. Karina Hotels Pvt. Ltd.
Rs. 1,01,60,000
M/s. Karina Hospitality Pvt. Ltd.
Rs. 1,03,34,000
M/s. Navya Securities Pvt. Ltd.
Rs. 7,01,49,880
M/s. K.P. & Associates
Rs. 98,80,000
M/s. Storm Hotels Pvt. Ltd.
Rs. 46,50,000
M/s. H.N. Consultants Pvt. Ltd.
Rs. 9,93,171
Shri N.K. Ahuja
Rs. 30,00,000
Rs. 10,91,67,051
  1. Further, addition have been made on the basis that the assessee has received the following unsecured loans during the relevant year and in the next assessment year —
S.No.
Loan received
Amount (Rs.)
1.
M/s. Karina Hotels Pvt. Ltd.
1,01,60,000
2.
M/s. Karina Hospitality Pvt. Ltd.
1,03,34,000
3.
M/s. Navya Securities Pvt. Ltd.
7,01,49,880
4.
M/s. KP & Associates
98,80,000
5.
M/s. Strom Hotels Pvt. Ltd.
46,50,000
6.
M/s. HN Consultant Pvt. Ltd.
9,93,171
7.
Shri NK Ahuja
30,00,000
8.
M/s. Karina Hotels Pvt. Ltd.
28,00,000
9.
M/s. Navya Securities
1,79,201
10.
M/s. KR Chawla Consulting Pvt. Ltd.
9,16,42,740
11.
M/s. K.R. Chawla Infra & Aviation Academy Pvt. Ltd.
32,88,93,299
12.
M/s. Mansion Hotels Pvt. Ltd.
2,80,00,000
13.
HT Recon Construction Pvt. Ltd.
85,02,276
TOTAL
56,91,84,567
  1. During course of Assessment proceedings the assessee filed the confirmation, copy of ITR, copy of Balance Sheet, Bank Statement and other relevant evidences in respect of all the parties except from Shri NK Ahuja who was no more at that time.
  2. The assessing officer mentioned the evidences filed in the Assessment Order and made the addition holding that “the assessee appears to be bringing in unaccounted money in to his books after creating the layers of intermediaries. Hence the credit worthiness of the lender and the genuineness of the transaction are not established”.
  3. The assessing officer treated the aforesaid loans from the parties as bogus and made the addition thereof on following reasons :–
“(a) The creditors gave the loan to the appellant either after borrowing the fund or by obtaining the share application money (in case of corporate creditors only). Hence, he held that the creditors had no sufficient money of their own for giving the loan to the appellant.
(b) The assessee has created a layer of inter-mediatories to bring the unaccounted money in his books of accounts by way of unsecured loan.”
  1. Before the learned Commissioner (Appeals), the assessee filed a petition dated 16-9-2011 under Rule 46A enclosing the confirmation from the legal heir of Late Shri NK Ahuja, affidavit, copy of acknowledgement of ITR and bank statement of the creditor and also the death certificate, in respect of the loan amounting to Rs. 30,00,000.
  2. The assessing officer filed the remand report dated 16-12-2012 objecting the admission of new evidences and on merit he raised an objection that creditor’s return income was only for Rs. 6,71,750, it was not possible for him to advance Rs. 30,00,000 to the assessee.
  3. The assessee filed the rejoinder dated 14-3-2012 against the remand report dated 16-2-2012 explaining the reason of death of the creditor which prevented the assessee to file the confirmation. Since the assessee’s case is covered under Clause (b) of Rule 46A, the new evidences were admitted by the learned Commissioner (Appeals).
  4. Before the learned Commissioner (Appeals), it was also explained that on the basis of bank, the fact was evident that the creditor was having regular transaction of deposit or withdrawals of the funds. The assessee received Rs. 63,00,000 and repaid Rs. 33,00,000 during the year. Thus, the balance amount of Rs. 30,00,000 was appearing at the end of the year. During subsequent year, the assessee not only refunded the balance amount of Rs. 30,00,000 but he made the excess payment of Rs. 20,00,000 to Late Shri NK Ahuja.
  5. The learned Commissioner (Appeals) held that the on basis of evidences furnished with petition under Rule 46A, it is evident that the creditor was in existence and assessed to income tax. The loan was obtained through banking channel and the creditor had capacity to advance such loan. The loan was also refunded in subsequent years through banking channel. Hence, the identity of the creditor, genuineness of the loan and creditworthiness of the creditor is proved. Hence, the addition of Rs. 30,00,000 was deleted. We have gone through the contents and find no infarction of law. Hence, we decline to interfere with the order of the learned Commissioner (Appeals).
  6. Before the learned Commissioner (Appeals), the assessee has submitted as under :–
“I. Legal Provisions in case of Cash Credit
(i) That in respect of genuineness of loan, it is necessary to examine the legal provision of section 68 of the Income Tax Act, 1961, which is reproduced as below:–
“Where any sum is found credited in the book of an assessee maintained for any previous year, and the assessee offers no explanation about the nature and source thereof or the explanation offered by him is not, in the opinion of the assessing officer, satisfactory, the sum so credited may be charged to income tax as the assessee of that previous year”.
That going through the provision of section 68, it is evident that following ingredients are required for the application of provision of section 68 of the Income Tax Act, 1961 and also for proving the genuineness of loans/deposits :–
(a) Any sum found to be credited in the books of accounts of the assessee,
(b) Books maintained for any previous year,
(c) Explanation of the assessee is required about the nature and source of the said sum so credited to the satisfaction of the assessing officer.
  1. Assessee’ s explanation not to be rejected arbitrarily
(i) That on going through the assessment order, your good-self will find that there is no dispute about the first two ingredients of section 68, i.e., first, the loan amounts credited in the books of account of the appellant and secondly, the loan was obtained during the previous year (under consideration). In respect of third condition, i.e., “explanation of the assessee about the nature and source of the sum so credited to the satisfaction of the assessing officer”, it is brought to your kind notice that the appellant had submitted explanation enclosing the supporting evidences before the learned assessing officer during course of assessment proceedings. The learned assessing officer neither rejected the appellant explanation nor gave any observation showing the deficiency in the evidences. He further did not give any observation about the insufficiency of the evidences in support of the loans obtained by the appellant.
In sum and substance, it is evident from the assessment order that the learned assessing officer was satisfied with the appellant explanation and the supporting evidences enclosed with Written submission.
However, he made addition on the ground that the creditor gave the loan to the appellant after borrowing the fund from third person. Thus, the reason for addition is neither legal nor justified and the same is liable to be deleted.
(ii) That farther in respect of third requirement, i.e., “explanation of the assessee should be to the satisfaction of the assessing officer” the courts are of the view that the assessing officer cannot reject the assessee’ s explanation arbitrarily. Hon’ble Bombay High Court of Nagpur Bench in very old case of Naidu (RBNJ) v. CIT (1956) 29 ITR 194 (Nag) : 1956 TaxPub(DT) 0015 (Nag-HC) held that where the explanation furnished by an assessee about the amount credited is prima facie reasonable, the said explanation cannot be rejected on capricious and arbitrary grounds.
(iii) That Hon’ble Supreme Court in the case of CIT v. K.S. Kannan Kunhi (1973) 87 ITR 395 (SC) : 1973 TaxPub(DT) 0330 (SC) in para 6 of the judgment expressed its displeasure explanation furnished by the assessee and for rejecting the same arbitrarily and without assigning any reason for the same. The ratio of the judgment in this case is that the assessee’s explanation must, be examined carefully and if it is found not to be acceptable, the proper reason for rejecting the explanation should be given in the order. The relevant portion of the judgment is reproduced for your kind perusal.
The ITO did not examine the merits of those explanations. He rejected them by merely observing that they were not satisfactory. The explanations offered by the assessee are not prima facie absurd. They were capable of being examined by the ITO. It was possible for the ITO to go into the extent of the immovable property owned by the HUF and its income. He did not care to do so. It was also possible for the ITO to go into the question of remittances made by Kannan Kunhi from Ceylon.
Here again the ITO did not choose to do so. It was not even suggested by the ITO that the assesses was having any business activity in India prior to 17-8-1950, or any other source of income taxable wider the Act If the explanation given by the assessee that part of the initial business capital was supplied by Kannan Kunhi is correct then the same is a good explanation. That explanation has not been examined at all.
Similarly, the assessee’s explanation that he was having income from the agricultural property has not been examined. The AAC also did not choose to examine the explanation given nor did the Tribunal care to go into that explanation. It just brushed aside that explanation with the observation “that the assessee had no proper or satisfactory explanation for the sources of these amounts. In our opinion, the Departmental authorities as well as the Tribunal had arbitrarily rejected the explanation given by the assessee. Under these circumstances we do not think that we will be justified in going into the niceties of the law, whether the High Court was justified in going into, the merits of the findings reached by the Tribunal. All that we need say is that this is not a fit and proper case where we should exercise our discretionary jurisdiction.
That on going through the assessment order your good-self will find that the learned assessing officer did not pass any comment in respect of the evidences furnished in support of the aforesaid cash credit In other words, he neither accepted the assessee’ s explanation nor rejected the same. On the contrary, the learned assessing officer made addition of Rs. 10,91,67,051 on altogether different reasons, which are not required under section 68 of the Income Tax Act, 1961. The learned assessing officer made the aforesaid addition by observing that the creditors had given the loan to the appellant either by taking the loan/share application money (in the ease of corporate creditors) or they had no sufficient their own source of funds. In substance, the learned assessing officer has made the addition under section 68 in the case of appellant by examining the source of sources which is not permissible in the eye of law. Hence, the addition of Rs. 10,91,67,051 made by learned assessing officer by examining the source of sources is not justified and the same is liable to be deleted. The relevant case laws on the issue of examining the source of sources are given in this submission itself.
III. Ingredients for genuineness of the loan
That in the land mark decision in the case of Shanker Industries v. CIT (1978) 114 ITR 689 (Cal) : 1978 TaxPub(DT) 0901 (Cal-HC), Hoh’ble Calcutta High Court laid down following three conditions to prove prima facie the cash credit as genuine —
(a) The identity of the creditor,
(b) The capacity of such creditor to advance the loan, and
(c) The genuineness of the transaction,
(ii) That Hon’ble Calcutta High Court in C. Kant and Co. v. CIT (1980) 126 ITR 63 (Cal) : 1980 TaxPub(DT) 1090 (Cal-HC) held that in case above three ingredients have been proved by adducing the evidences, it will be presumed that the assessee has discharged his onus in proving the genuineness of the loan and no addition under section 68 can be made.
(iii) That Hon’ble Gujarat High Court in the case of CIT v. Rohini Builders (2002) 256 ITR 360 (Guj) : 2002 TaxPub(DT) 0305 (Guj-HC) held that where the assessee has proved the identity of the creditors, and the amounts were received by account payee cheques, the initial burden on the assessee is discharged. The finding of the tribunal that cash credit should be treated as proved in absence of any further material to discredit the same has to be upheld.
(iv) That Hon’ble Guahati High Court in the case of Kundanmal Kothari (HUF) v. CIT (1997) 93 Taxman 620 (Gua) : 1997 TaxPub(DT) 0653 (Gau-HC) found that the loan of Rs. 1,25,000 was entered in the books of account and the creditor was also identified. The creditor himself was an assessee under the Act. In spite of that the assessing officer did not accept the entries made in the books of account as well as in the returns and required further proof. Confirmatory letters were produced and the creditor himself appeared before the ITO to give his statement confirming the fact that the amount had been paid by him to the assessee. In the light of these evidences the Hon’ble Guahati High Court held that the addition under section 68 was not justified. Consequently, the deletion of said addition was upheld.
(v) That Hon’ble Bombay High Court in the case of CIT v. Tania Investments Pvt. Ltd. (2010) 322 ITR 394 (Bom) : 2010 TaxPub(DT) 0439 (Bom-HC) observed that the cash credits to the extent of Rs. 7,41,17,495 was entered in books of account the assessee. The assessee was required to establish, (i) the identity of the party, (ii) capacity arid (iii) the genuineness of the transaction. So far as identity is concerned the parties have been identified and similarly in the books of account produced by them corresponding entries were found Books of account itself would indicate the capacity of the party to advance loan. There was no further need on the part of the assessee to prove the capacity of the creditors. In the light of facts and evidences available, the Hon’ble High Court upheld the deletion of addition made under section 68.
That Hon’ble Gujarat High Court in the case of CIT v. Micro Melt Pvt. Ltd. (2010) 327 ITR 70 (Guj) : 2010 TaxPub(DT) 0201 (Guj-HC) that assessee having established the genuineness of the deposits and the identity of the depositors by producing their affidavits and bank statements and the Tribunal having upheld the order of the Commissioner (Appeals) deleting the addition under section 68 on the basis of appreciation of evidence, no question of law, much less a substantial question of law, arises.
That Hon’ble Patna High Court in the case of CIT v. Ansari Cloth Merchant (1990) 90 CTR (Pat) 172 : 1990 TaxPub(DT) 1331 (Pat-Trib) found that the cash credit of Rs. 17000 was satisfactorily explained by the assessee and this finding has been upheld by the Tribunal. The counsel for the Revenue contended that the assessment of creditor was reopened and was’ subject matter of further enquiry. That enquiry, however, cannot affect the finding of the Tribunal that the assessee had satisfactorily, explained the cash credit of Rs. 17000. Therefore, the Tribunal was right in holding that the AAC was justified in deleting the addition of Rs. 17,000.
That ITAT Delhi Bench in the case of Pankaj Sawhney v. Income Tax Officer (2004) 3 SOT 1 (Del) : 2005 TaxPub(DT) 0756 (Chd-Trib) held that assessee having furnished considerable material in support of identity of donors and having established all of them to be income tax assessee, addition was liable to be deleted.
That ITAT, Amritsar Bench in the case of ITO v. Parveen Kumar (2004) 2 SOT 77 (Asr) held that the identity of the creditor was disclosed and also source of the creditor was disclosed through an affidavit, the creditworthiness of the creditor was proved by giving the source as the creditors received money from Lucky Draw. In this regard, before the assessing officer relevant certificate was also produced, there was no violation of Rule 46A by the Commissioner (Appeals).
Considering the totality of the facts and in the absence of any new evidence/material, against the order of the learned Commissioner (Appeals), the Commissioner (Appeals) rightly deleted the addition and no interference is required in the order of the Commissioner (Appeals). The same is hereby upheld.
The assessee should not be asked to prove the source of sources.
That on going through the provision of section 68 of the Income Tax Act, 1961, it is evident that the assessee is required to offer the explanation about the nature and source of the sum credited in his books of accounts. In other words, the assessee cannot be asked to prove the source of sources, i.e., from where the creditor has brought the money is not required to be proved by the assessee. Hon’ble Madras High Court in the case of Hastimal v. CIT (1963) 49 ITR 273 (Mad) : 1963 TaxPub(DT) 0400 (Mad-HC)  herd that an assessee should not be placed upon the rack and called upon to explain not merely the origin and source of a capital contribution but the origin of origin and source of source as well.
That Hon’ble High Court of Assam in Tolaram Daga v. CIT (1966) 59 ITR 632 (Assam) : 1966 TaxPub(DT) 0106 (Assam-HC) in para