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Judgment
PER AMITABH SHUKLA, AM:
This appeal filed by the assessee is directed against the order of Ld. Commissioner of Income Tax (Appeals)-29, New Delhi, dated 04.12.2025 arising out of assessment order dated 23.06.2021 passed by the Deputy Commissioner of Income Tax, Central Circle-27, New Delhi, under section 153A of the Act for the Assessment Year 2012-13. The word ‘Act’ herein this order would mean Income Tax Act, 1961.
The assessee has raised following grounds of appeal:-
1.On the facts and circumstances of the case, the order passed by the learned Commissioner of Income Tax (Appeals) [CIT(A)] is bad both in the eyes of law as well as on facts of the case and thus, liable to be quashed.
2.(i) On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in confirming the order passed u/s 153A which is bad in law in the absence of a proper approval obtained by the AO as prescribed under Section 153D of the Act. (ii) That the said approval has been granted in a mechanical manner and as such the assessment order so passed is illegal and void-ab-initio.
3.(i) On the facts and circumstances of the case, the Ld. CIT(A) has erred both on fats and in law in confirming the initiation of the assessment proceedings u/s 153A of the Act in pursuance to the execution of warrant of requisition u/s 132A of the Act issued on 30.03.2019 which is without jurisdiction and deserves to be quashed as such. (ii) That the Ld. CIT(A) has erred in not appreciating that the cash found being the assets under question have been fully disclosed in the books of accounts of its respective owners and thus, pre-requisites of Section 132A of the Act are not being satisfied with which renders the warrant of requisition as invalid, illegal and untenable in law.
4.On the facts and circumstances of the case, the Ld. CIT(A) has erred both on facts and in law in confirming the addition without any incriminating material having been found during the course of search.
5.(i) On the facts and circumstances of the case, the Ld. CIT(A) has erred both on facts and in law in confirming the addition of Rs. 80,10,000/- treating the same as unexplained money u/s 69A of the Act on account of cash found during the search operation carried out by Anti Evasion Branch of Central Excise Commissionerate, New Delhi. (ii) That the Ld. CIT(A) has failed to appreciate that the cash so found belonged to the business receipts of the appellant and his three brothers and cannot be construed as the sole property of the appellant and hence, the addition of cash found is illegal, invalid and not sustainable in law. (iii) That the Ld. CIT(A) has failed to appreciate that the cash of Rs. 10,10,000/- to the extent as belonging to the appellant have been made out of available stock and has also been disclosed in the VAT Returns as well as audited books of accounts and as such, no separate addition can be made u/s 69A of the Act for the cash which has already been disclosed in t
6.On the facts and circumstances of the case, the Ld. CIT(A) has erred both on facts and in law in confirming the aforesaid addition of cash as unexplained money u/s 69A of the Act which has already been declared in the respective books of accounts and that it tantamount to double taxation of the same amount which is invalid, illegal and not sustainable in law.
7.On the facts and circumstances of the case, the Ld. CIT(A) has erred both on facts and in law in confirming the addition without appreciating the fact that no show cause notice was issued by the AO before making such addition.
8.On the facts and circumstances of the case, the Ld. CIT(A) has erred both on facts and in law in confirming the issuance of notice of demand u/s 156 of the Act without having any Document Identification Number (DIN).
Brief factual matrix of the case as culled from the orders of the lower authorities is that, the appellant had filed Return of Income on 23.09.2012 declaring income of Rs.6,44,800/-. In the case of the appellant a search and seizure operation was conducted by the Anti Evasion Branch of Central Excise Commissionerate of Delhi on 02.09.2011 at its business and residential premises. The search action led to recovery of cash of Rs.80,10,000/-, which was transferred in the form of fixed deposits by the Excise Authority to their counter parts in the Income Tax Department. Consequently, warrant of requisition u/s 132A(1) was executed and the ld. Assessing Officer initiated proceedings u/s 153A of the Act. As regards, the sources of the impugned amount of cash of Rs.80,10,000/-, the appellant submitted to the Assessing Officer that it is engaged in the business of footwear and that an amount of Rs.10,10,000/- belongs to his proprietary concerns Delhi Plastics. As regards the balance cash, it was submitted that the same was found from another house in the locality, where his mother and three brothers reside. The assessee had submitted that the remaining amount of Rs.70 lakhs was business cash belonging to his three brothers who were also engaged in the same line of business. In support of its contentions, the assessee had submitted financial statements of self and his brothers for FYs 2010-11, 2011-12, etc., confirmation of brothers, etc. The ld Assessing Officer rejected the impugned justification holding that at the time of search before the excise authority, the appellant had admitted that tax levies under Excise Act may be recovered from the cash found. The ld. Assessing Officer also noted that, even though the assessee had submitted that the cash found allegedly belonging to him and brothers had a direct nexus with the sales of the proprietary business, no satisfactory evidence could be found in support thereof. No evidences for the forthcoming for the stock present at the premises. The ld. Assessing Officer also noted that as per Excise Records, the cash was found from two trunks kept in store rooms. The ld. Assessing Officer also noted non-availability of such large quantity of cash in hand in preceding or succeeding years. It was also noted that the proprietary business alleged to be belonging to the appellant’s brother was actually controlled by the assessee himself and that none of them were registered with Excise Authority. The ld. Assessing Officer observed in the order in para-5.1.1 that the cash was seized by the Excise authority as it was not found to be recorded in the books of accounts and for failure of assessee to give any satisfactory explanation. The Excise Authority also did not find any stock register at the premise. In view of the above, the ld. Assessing Officer concluded that the theory propounded by the assessee and the evidences produced is an afterthought supported by manufactured evidences. Therefore, he proceeded to make the impugned addition of Rs.80,10,000/- u/s 69A of the Act. The assessee preferred an appeal before the ld. CIT(A), who confirmed the addition made by the ld. Assessing Officer. While confirming the order of the ld. Assessing Officer in para-9.2 of his order, the ld. CIT(A) observed that as per the Punchnama prepared by the Excise authority Rs.50 lakhs found in Almirah and Rs.30,10,000/- from drawers, which were all solely under the assessee’s possession. The ld. CIT(A) also observed that the supporting documents produced by the assessee are all dated post seizure by the Excise Authority and there is no contemporaneous sale bill, customers ledgers or quantitative stock reconciliation so as to add credence to the hypothesis propounded by the assessee. While rejecting assessee’s arguments, it was also concluded that the affidavit of brothers were mere self-serving statements without having any independent corroborative value. Accordingly, the addition was confirmed.
We have heard rival submissions in the light of material placed on records.
At the outset, the ld. Counsel for the assessee submitted that it does not wishes to press ground of appeal no.1 and 2. Accordingly, grounds of appeal nos.1 and 2 are dismissed as withdrawn.
The ld. Counsel for the assessee reiterated the same arguments taken before the ld. Assessing Officer and ld. CIT(A). A voluminous paper book comprising the same set of documents filed before the lower authorities have been resubmitted with same set of arguments. The first issue raised by the assessee through ground of appeal no.3 and 4 is regarding infirmity of proceedings u/s 153A. It was submitted that the cash found was fully explained and disclosed in the books of accounts and therefore action u/s 132A r.w.s. 153A was not permissible. It was accordingly requested that the assessment order may be quashed and set-aside. We have noted that the ld. CIT(A) has extensively dealt this issue in para-8 to 8.2 of his order. We have noted that he has rightly held that in the absence of any satisfactory explanation for the source of Rs.80,10,000/-, the ld. Assessing Officer was well within his authority to have invoked action u/s 132A r.w.s. 153A of the Act. The ld. DR heavily supported the order of the lower authorities. We are in agreement with the conclusion drawn by the ld. CIT(A) and do not see any possibility to interfere with the same at this stage. Accordingly, ground of appeal no.3 and 4 are dismissed.
The appellant through grounds of appeal no.5 and 6 is contesting the addition of Rs.80,10,000/- made by the ld. Assessing Officer on account of cash found by the Excise Authority. We have noted from the order of the ld. Assessing Officer and Ld. CIT(A) that all the facts of the case have been clearly brought on records and analyzed in the light of available evidences. We have noted that the appellant has not been able to place on records any contemporaneous evidence so as to allude truthfulness of its statements. We have noted the observation of the ld. CIT(A) in para -9.2 of his order regarding the discovery of cash from the Almirahs and drawers solely under assessee’s possession. We have also noted the statement of the assessee given before the Excise Authority that their tax demands be adjusted against seized cash. Needless to say if the cash was not belonging to assessee, he did not have any authority to request for an adjustment against tax levies. The statements given by the assessee’s three brothers have no independent corroborative value as they have not been backed by any contemporaneous evidence at the time of search. Thus, we are of the considered view that the hypothesis propounded by the assessee that the cash found has nexus with assessee’s sales and also largely belongs to his brother is a case of an afterthought and cannot be accepted. We are accordingly of the considered view that the order of the ld. CIT(A) is based upon correct understanding and appreciation of the facts of the case and does not require any intervention at this stage. We therefore confirm the order and dismissed ground of appeal no. 5 and 6 raised by the assessee.
The next issue raised by the appellant through ground of appeal no.7 is regarding non-issue of show-cause notice by the ld. Assessing Officer before making the impugned addition. We have noted from the order of the ld. Assessing Officer that he has given umpteen opportunities to the assessee before making the impugned addition and hence the ground of appeal no.7 is devoid of any merits and hence dismissed.
In the result, the appeal of the assessee is dismissed.