ITA No. 5448/Del/2016. Case: Shyam Sunder Jindal Vs Asstt. Commissioner of Income Tax, Central Circle-30. ITAT (Income Tax Appellate Tribunal)

Case NumberITA No. 5448/Del/2016
CounselFor Appellant: Ajay Vohra, Sr. Adv. and Rohit Garg, Adv. and For Respondents: S.S. Rana, CIT, DR
JudgesN.K. Saini, Member (A) and Beena Pillai, Member (J)
IssueIncome Tax Act, 1961 - Sections 115WD, 132, 132(4), 133(6), 139, 139(1), 139(ii), 142(1), 143(3), 153, 153 A, 153A, 153A(1), 153A(1)(a), 153B, 153B(1), 153B(1)(a), 153B(1)(viii), 158B(d), 158BA, 271(1)(b), 69, 90, 90A, 94A, 94A(3)(a)
Judgement DateApril 10, 2017
CourtITAT (Income Tax Appellate Tribunal)

Order:

N.K. Saini, Member (A), (New Delhi Bench)

1. This is an appeal by the assessee against the order dated 24.08.2016 of ld. CIT(A)-30, New Delhi.

2. Following grounds have been raised in this appeal:

"1. That the CIT (Appeals) erred on the facts and in law, in not holding that the assessment order dated 27.02.2015 passed by the assessing officer under section 153A of the Income-tax Act, 1961 ('the Act") was bad in law and void-ab-intio.

1.1 That the CIT (Appeals) erred on the facts and in law in not appreciating that the above assessment order passed under section 153A is barred by limitation as prescribed in section 153B(1)(viii) of the Act.

1.2 That the CIT (Appeals) erred on the facts and in law in not appreciating that the assessing officer passed the assessment order in undue haste and in gross violation of principles of natural justice.

Without prejudice:

2. That the CIT(A) erred on facts and in law in confirming addition of Rs. 69,07,414 (US $ 155923.57 @ Rs. 44.30), being the peak balance lying in some account of HSBC Bank, Geneva made by the assessing officer alleging that:

a) the above bank account though belongs to the appellant was not disclosed either in the return of income or during the course of assessment proceedings; and

b) the appellant failed to furnish explanations/documents, etc. in respect of the deposits lying in the above bank account.

2.1 That the CIT(A) erred on facts and in law in not appreciating that the aforesaid addition has been made by the assessing officer de-hors any material found/seized during the course of search in the premises of the appellant and is not sustainable in law.

2.2 That the CIT(A)/assessing officer erred on facts and in law in drawing adverse inference on the basis of some general/vague particulars appearing in some unsigned/undated/unauthenticated loose photocopied sheets of papers, whose source is also not known/reliable/credible, not appreciating that the same does not constitute evidence in the eyes of law.

2.3 That the CIT(A) erred on facts and in law in confirming the above addition without appreciating that the assessing officer has admitted in para 6 of the assessment order that authentic information/communication regarding the alleged foreign bank account was still awaited from the Swiss Authorities.

2.4 That the CIT(A) erred on facts and in law in not appreciating that - (a) the above alleged foreign bank account did not belong to the appellant; (b) none of the deposits, as alleged, related to the appellant; and (c) no transaction was made by the appellant, and that the above addition made in the hands of the appellant is without any evidence or basis.

2.5 That the CIT(A)/assessing officer erred on facts and in law in alleging that the appellant had intentionally concealed vital information by not signing the consent/declaration form and drawing adverse inference therefrom, without appreciating that the question of signing such form did not arise as the appellant denied having any foreign bank account in the first place.

The appellant craves leave to add to, alter, amend or vary the aforesaid grounds of appeal at or before the time of hearing."

3. From the aforesaid grounds, it would be clear that the assessee had challenged the jurisdiction of the AO in passing the assessment order u/s. 153A of the Income Tax Act, 1961 (hereinafter referred to as the Act) and sustenance of the addition of Rs. 69,07,414/- made by the AO.

4. Facts of the case in brief are that the assessee filed the original return of income on 29.07.2006 declaring an income of Rs. 7,05,730/- which was processed as such on 20.11.2006. Later on, the case was selected for scrutiny and the assessment was framed u/s. 143(3) of the Act on 08.10.2008. Subsequently, a search and seizure operation u/s. 132 of the Act was conducted on various business premises of Sh. V.C. Jindal Group of cases as well as the residential premises including the residence of the assessee at 12A, Vasant Kunj, Pocket-D, New Delhi on 14.11.2011. The AO issued the notice u/s. 153A of the Act on 19.10.2012. In response to the said notice, the assessee filed the return of income declaring an income of Rs. 7,05,730/-. The said income was declared on account of professional fee and income from other sources being interest on dividend and also included income of minor son Sh. Bhavesh Jindal in the form of interest income and dividend income.

5. During the course of assessment proceedings, the AO observed that as per the information available with his office, the assessee maintained an account with HSBC Bank, Geneva, Switzerland. A reference was made to the appropriate authority for exchange of information. The AO reproduced translation in English of the said information which was available in French in para 4.1 of the assessment order dated 27.02.2015, for the cost of repetition, the same is not reproduced herein. The AO mentioned that the assessee was maintaining a bank account with HSBC Bank, Geneva, Switzerland with BUP No. 9070145843 and this account remained undisclosed to the Income Tax Department and that the assessee had not furnished a copy of complete statement of this bank account. The AO also mentioned that the requisite information from Swiss Banking Authorities had not been received. At the same time, he stated that as per the bank statement with his office, the credit balance in this account was US$155507.80 at the end of March 2006 and US $152027.93 at the end of February, 2007. The peak balance was US $156740.81 in the month of September 2006 and maximum balance in this account for the financial year 2005-06 was US$155923.57 in February 2006. The AO asked the assessee to furnish the complete statement, the details and particulars of HSBC Bank account and observed that the assessee had not furnished bank account statement or consent waiver form to obtain statement, inspite of various opportunities given to him. The AO pointed out that during the search proceedings, statement of the assessee was recorded u/s. 132(4) of the Act and he denied of having any such bank account. He also mentioned in para 9 of the assessment order that the assessee during the course of assessment proceedings on queries made by notices or letters did not accept of having bank account with HSBC Bank, Geneva, Switzerland. The AO highlighted the facts of the aforesaid bank account with HSBC Bank, Geneva, Switzerland with BUP No. 9070145843 as under:

Particulars appearing in Bank information

Particulars of the assessee

Name mentioned -Shyam Sunder Jindal

Name of assessee. Each alphabet of the name & surname are that of assessee as mentioned in return as well as passport.

Date of Birth 26.08.1955

26.08.1955 is the correct date of birth of the assessee as mentioned in the return filed & passport.

Profession - Chairman

The assessee is chairman of Jindal Group of companies.

Postal - 56, Hanuman Road, New Delhi/India (Legal Address)

This was the Registered Office of M/s. Jindal Rubber Pvt. Ltd. as proved by a screenshot downloaded from website.

Place of birth - 356, Bhiwani, Haryana.

This is birth place of assessee as mentioned in his passport.

The telephone no. - +11 3345463.

This telephone no. 23345463 is a MTNL telephone issued in the name of M/s. Jindal Rubber Pvt. Ltd. A screen shot obtained from MTNL directory through website establishes this fact Screen shot is place in file. The earlier seven digit number was 3345463 and 2 was prefixed to all MTNL numbers to make them eight digit. +11 denote the state code number of Delhi.

Client profile linked to person - Bhavesh Jindal. Profile created on 24-11-2000 was closed on 27/06/2001.

The name of son of assessee who was minor at the time of profile created & closed. Iincome of Sh. BhaveshJindal, minor, has been shown by assessee in his return of income for AY 2006-07.

Identification marks & pieces

Appearing in Account

No. B0129826

This is the number of passport issued in the name of assessee. A certificate confirming this fact obtained from passport authority vide F. No. 25/Misc./15/Pol.GR.II/24-S dated 20/02/2015 establishes the fact.

Place of office - New Delhi

New Delhi, Head Office of the business of assessee as well as his residence is in Delhi.

Date -23/08/1999-

This is the date of issue of passport No. B0129826 in the name of assessee. Copy obtained u/s. 133(6) of I.T. Act from passport authority Delhi vide letter No. 25/Misc./15/Pol.GR.II/24-S dated 20/02/2015 established the fact. Although the assessee was asked to furnish copy of passport issued on 23/08/1999 but instead assessee filed copy of passport issued dated 23/08/2011.

Date of modification 11/03/2005

From the details of arrival & departure it has been found that the assessee departed on 05/03/2005 through flight Q407 with passport no ZO52887 issued on 06/12/2000 from Delhi & arrived on 22/03/2005 through flight AF148 at Delhi Airport. During the intermediate time the assessee is likely to have done the modification on 11/03/2005 in the bank.

6. The AO provided copy of account statement for the period November 2005 to February 2007 to the Authorized Representative of the assessee on 21.11.2014 and observed that the details of account holder mentioned in the account as name of the assessee, date of birth, address, telephone number, residential address, passport number etc. pertaining to the assessee which established that the assessee was maintaining his bank account with HSBC Bank, Geneva and he deliberately and willfully had avoided the production of statement of his bank account and had preferred not to avail the help extended by the department to obtain the account statement from HSBC, Geneva, Switzerland through FT & TR by not furnishing the consent waiver form. He, therefore, considered the maximum credit balance of US $ 155923.57 on conversion of Indian Rupees @ Rs. 44.30 per $ (rate of $ taken at average rate for the...

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