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

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...