Income Tax Appellate Tribunal - Jaipur
Tijaria Polypipes Limited,Jaipur vs Dcit Cirlce 4, Jaipur on 30 January, 2025
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IN THE INCOME TAX APPELLATE TRIBUNAL,
JAIPUR BENCHES,''B" JAIPUR
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BEFORE: SHRI RATHOD KAMLESH JAYANTBHAI, AM & SHRI NARINDER KUMAR, JM
vk;djvihyla-@ITA No. 616/JPR/2024
fu/kZkj.ko"kZ@AssessmentYear : 2013-14
TijariaPolypipes Ltd. cuke The DCIT
SP-1-2316, Ramchandrapura, RIICO Vs. Circle-4
Industrial Area, Sitapura, Jaipur- 302 022 Jaipur
LFkk;hys[kk la-@thvkbZvkj la-@PAN/GIR No.: AACCT 4796 M
vihykFkhZ@Appellant izR;FkhZ@Respondent
fu/kZkfjrh dh vksjls@Assesseeby : Shri Tarun Mittal, CA
jktLo dh vksjls@Revenue by: Shri Anoop Singh,Addl.CIT-DR
lquokbZ dh rkjh[k@Date of Hearing : 21/01/2025
mn?kks"k.kk dh rkjh[k@Date of Pronouncement: : 30/01/2025
vkns'k@ORDER
PER: RATHOD KAMLESH JAYANTBHAI, AM
This appeal filed by the assessee is directed against order of the ld.
CIT(A), Jaipur-4 dated 08-04-2024 for the assessment year 2013-14in the
matter of section 143(3)/ 147 of the Act by raising the following grounds of
appeal.
''1. On the facts and in the circumstances of the case and in law, Id. CTT(A) has
erred in confirming the re-opening u/s 147 of the Act, of the assessment completed
u/s 143(3) of the Income Tax Act, 1961, arbitrarily.
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TIJARIA POLYPIPES LTD VS DCIT CIRCLE-4, JAIPUR
1.1 That the Ld. CIT(A) has further erred in confirming the re-opening of
assessment by ld.AO without recording any subjective belief as to escapement of
income and in merely acting upon suspicion formed on the basis of so-called
information received from some other officials, by completely ignoring the pre-
requisite condition for re-opening of assessment which can be done only on the
basis of subjective belief of escapement of income and that suspicion cannot take
the place of belief. Thus, the consequent reassessment order deserves to be held
bad in law and additions thereof deserves to be deleted.
1.2 That the Id. CIT(A) has further erred in confirming the reopening proceedings
initiated u/s 148 after four years from the end of relevant assessment year.
wherein assessment stood completed u/s 143(3) of the Act, after complete
verification of all details. Appellant prays that re-opening proceedings so initiated
by Id.AO, without establishing any failure on the part assessee to disclose fully and
truly all facts or material necessary for its assessment, is contrary to the provisions
of the Act as well as bad-in-law, and hence void ab For TJARIA initio and the
consequent re-assessment order deserves to be quashed.
1.3 That the Id. CIT(A) has further erred in confirming the initiation of proceedings
u/s 147 in a case of assessment already completed u/s 143(3) which tantamount
to re-visiting a completed assessment without any evidentiary material on record,
which is not permissible as per provision of law. Appellant thus prays that such re-
opening being bad-in-law, the consequent re-assessment order deserves to be
quashed.
2. On the facts and in the circumstances of the case Id. CIT(A) has grossly erred in
confirming the reopening of assessment by not considering and appreciating the
vital fact that, in the reasons recorded, appellant was alleged to have taken
accommodation loan entries, whereas no such addition of unsecured loan was
made in reassessment order and rather addition was finally made by Id.AO on
allegation of unexplained share application money received from two parties.
Appellant prays that since no addition was made on the issue on which satisfaction
for re-opening was formed as same was found to be not existing, then Ld.AO was
not justified in making any other addition and, thus action of Id.CTT(A) in
confirming such addition is not in accordance with law and the consequent addition
deserves to be deleted.
Without prejudice to above on merits
3. On the facts and in the circumstances of the case and in law, Id.CIT(A) has
erred in confirming the addition of Rs.1,50,32,635/- made by ld.AO on account of
alleged unexplained share capital, which is contrary to the facts on record as no
share capital or application money was received by appellant during the year
under appeal. Appellant prays the addition so made by ld.AO and confirmed by
Id.CIT(A) is totally unjustified and deserves to be deleted.
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3.1. On facts and in the circumstances Id.CIT(A) has erred in confirming the
addition of Rs. 1,50,32,635/- made by ld.AO u/s 68 of the Act, by alleging that
assessee has paid cash and in turn received accommodation entry in the shape of
share capital received by the assessee, whereas actually the transaction alleged
as bogus, were purely in the nature of trading transaction in the form of duly
recorded in the books, which sales were duly accepted in assessment completed
u/s 143(3) as also in re-assessment proceedings for the preceding year, the
amount due recovered in the year under appeal cannot be doubted and cannot
treated as non genuine. Thus the addition made merely on presumptions and
surmises in a very casual manner, without proper verification of facts on record is
most un-justified, bad in law and deserves to be deleted.
3.2 That the Id.CIT(A) has further erred in confirming addition of the trade debtors
recovered during the year, by presuming the same to be accommodation entries
taken by the assessee from two allegedly bogus entities, that too solely on the
basis of the suspicion communicated by Investigation Unit Kolkata and also erred
in making addition without rebutting the various documentary evidences furnished
during the re-assessment proceedings. Thus, the addition made merely on the
basis of presumptions and assumptions and on incorrect facts deserves to be
deleted;
4. On facts and in the circumstances of the case the Id.CIT(A) has erred in
confirming the addition of Rs. 3,75,816/- made by Id.AO, by alleging the same as
commission paid on such accommodation entry alleged to have been taken by the
assessee Appellant prays such addition being made on assumptions and
presumptions, based on absolutely incorrect facts, without any material on record
deserves to be deleted.''
2.1 Brief facts of the case are that the assessee is a public limited
company and is engaged in the business of manufacturing PVC pipes,
HDPE Pipes, POY, DTY, Blankets etc. Return of Income for the year under
appeal was originally filed on 29.09.2013 declaring total income of Rs. NIL
and MAT was paid on the book profits. The case was selected for complete
scrutiny and after verification of the information as sought by AO from time
to time which were furnished, and after considering the same, assessment
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was completed u/s 143(3) vide order dated 12.03.2016, whereby
disallowance of Rs.5,12,198/- was made u/s 14A of the Income Tax Act,
1961. Subsequently, on the basis of some information stated to have been
received by AO from Income Tax Officer (Inv.), Unit-1 & AIU Kolkata,
assessment of assessee was reopened by issue of notice u/s 148 dated
18.03.2019. In response to such notice, the assessee filed Return of
Income and vide letter dt. 24.4.2019 a request was made for the supply of
reasons recorded before issue of notice for reopening, which were provided
to assessee vide letter dt. 30.9.2019. Assessee, vide letter dated
07.10.2019 (APB 64-68) objected the reopening of assessment on the
ground that the assessee company had never taken any loan or share
application money from the companies stated in the reasons recorded and
in respect to two companies namely M/s Raj Rajeshwari Metals & Minerals
Traders Pvt. Ltd and M/s Glorious Merchandise Pvt. Ltd. payments were
received during the year against the sale made to both of these companies
in immediately preceding year where the same stood accepted by the
department in the order passed u/s 143(3). However, from the perusal of
the assessment order it appears that AO without disposing off the
objections so raised, proceeded to complete assessment and
reassessment proceedings were concluded vide reassessment order
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passed u/s 143(3)/147 on 10.12.2019 by making addition of
Rs.1,50,32,635/- u/s 68 by alleging that assessee has obtained
accommodation entry of share application of this amount. The narration as
made by the AO in the assessment at para 7 of his order is reproduced as
under:-
''7. In view of the facts discussed above, it is apparent on record that the
assesse has failed to explain the genuineness of share application money
received amounting to Rs.68,08,020/- taken from M/s. Rajeshwari Metails&
Mineral Traders Pvt. Ltd. and Rs.82,24,615/- from M/s.Glorious Merchandise Pvt
Ltd. which were reflected in the books/ papers got from the search operation as
discussed above. Therefore, it is concluded that the transactions under
consideration were sham transactions and aimed only to bring unaccounted
money in the guise of unsecured loan and paper work has been got up and done
merely to give a colour of authenticity to the transaction and by creating a façade
of legitimate transactions.
After carefully examining the material available with the Department,
Rs.1,50,32,635/- shown as share application money received from M/s. Raj
Rajeshwari Metals & Minerals Traders Pvt. Lted and M/s. Gloroious Merchandise
Pvt. Ltd.as treated as unexplained income of the assessee introduced through
coloured transactions and added to the total income of the assessee u/s 68 of the
Act.
A further addition of Rs.3,75,816/- was made by the AO u/s 69C as
unexplained expenditure on presumption that assessee had paid
commission @ 2.5% for obtaining such accommodation entry. The relevant
observation of the AO at para 8 of his order is reproduced as under:-
''8. Further, the assessee had taken bogus share application money at
Rs.1,50,32,635/- in his book from the entry providers, thus an amount of
Rs.3,75,816/- i.e. @ 2.5% of Rs.1,50,32,635/- is being added u/s 69C of the I.T.
Act as unexplained expenditure of the assessee''
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2.2 Aggrieved of the additions so made by AO, assessee preferred an
appeal before ld. CIT(A) - 4, Jaipur who dismissed the appeal of the
assessee.
2.3 Being aggrieved by the order of the ld.CIT(A), the assessee preferred
an appeal before this Bench raising the grounds of appeal mentioned
hereinabove.
3.1 Apropos Ground No. 1 to 2 of the assessee wherein it is noticed that
the ld CIT(A) has dismissed these grounds of appeal of the assessee by
observing as under:-
4.2 I have considered the facts of the case and written submissions of the
appellant as against the observations/findings of the AO in the assessment order
for the year under consideration. The contentions/submissions of the appellant are
being discussed and decided as under:-
In these grounds, the appellant has agitated against the reassessment
proceedings initiated by the Id. AO and consequent reassessment order passed.
As the same issue is involved in these grounds, these have been discussed
together. Appellant company is engaged in business of manufacturing of PVC
pipes, HDPE pipes, POY, DTY, etc. Return of income for the year under appeal
was filed on 29.09.2013 declaring total income at NIL and MAT was paid on book
profits. The case was selected for scrutiny and assessment was completed u/s
143(3) vide order dated 12.03.2016 whereby disallowance of Rs. 5,12,198/- was
made u/s 14A of I.T. Act, 1961. Subsequently considering information received by
Id. AO from ITO (Inv.), Unit-1 and AIU, Kolkata, the assessment was reopened by
issue of notice u/s 148 dated 18.03.2019, in response to which the assessee filed
return of income and requested for supply of reasons recorded, which were
provided to the assessee vide letter dated 30.09.2019. The appellant objected to
the reopening of assessment on the ground that it has never taken any loan or
share application money from the companies stated in the reasons recorded and
in respect of two companies namely M/s Raj Rajeshwari Metals and Minerals
Traders Pvt. Ltd. and Mis Glorious Mercandise Pvt. Ltd. the payments were
received during the year against sales made to these companies in the
immediately preceding year which stood accepted by the department, as the order
u/s 143(3) was passed in preceding year also. However, without disposing off the
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objections by way of passing any order. Id. AO proceeded to complete the
reassessment proceedings and the assessment order was passed by making
addition of Rs. 1,50,32,635/- u/s 68 by alleging that assessee has obtained
accommodation entry of share application during the year under consideration.
It was submitted by the Id. AR that though the appellant vide letter dated
07.10.2019 has filed the objections for issuance of notice u/s 148 after the receipt
of reasons but the Id. AO has not passed any speaking order rejecting the
objections, which is contrary to the decision of Hon'ble Supreme Court in the case
of GKN Driveshaft (1) Ltd. reported in 259 ITR 19 and thus reassessment
proceedings deserves to be held illegal and consequent reassessment order
passed deserves to be held void-ab-inito. Other main legal issue raised by the Id.
AR is that the reopening was done beyond four years in the instant case wherein
already assessment uis 143(3) was completed and accordingly in view of proviso
to section 147, the AO has to establish that there was failure on the part of
assessee to disclose fully and truly all material facts necessary for his assessment.
It was submitted by the Id. AR that in the scrutiny assessment proceedings, list of
unsecured loans and other details as asked for by the Id. AO were submitted and
there was no failure on the part of assessee to disclose truly and fully all material
facts. It was submitted that Id. AO at para 8 of the reasons recorded has just
mentioned "I have carefully considered the assessment records containing the
submissions made by the assessee in response to various notices issued during
the original assessment proceedings u/s 143(3) of the I.T.Act, and it is found that
the assessee has not disclosed fully and truly all the material facts necessary for
the regular assessment for the year under consideration."
Ld. AR has submitted that Id. AO has failed to specify as to what exact material
fact has not been disclosed truly and fully by the assessee. On the other hand as
stated above, the appellant has filed confirmation of all unsecured loan taken and
moreover as from none of the company mentioned in the reasons recorded, the
appellant has taken any loan and accordingly name of these companies
specifically that two companies would obviously not appear / included in the list of
unsecured loan. Accordingly it was submitted that reopening of the completed
assessment beyond a period of four years, without pointing out failure on the part
of assessee to disclose fully and truly all material facts, is illegal, unjustified and
such proceedings deserve to be quashed.
Another important legal objection raised by the id. AR is that in the reasons
recorded it was alleged that appellant has taken accommodation entry in the
shape of unsecured loan whereas in the reassessment order no such addition of
unsecured loan was made but it was observed that appellant has taken bogus
share application money from these two companies and thus addition was made
as unexplained share application money. Thus it is seen that no addition was
made on the issue on which satisfaction was recorded before issuing notice u/s
148. It was further submitted that no independent application of mind was done by
ld. AO while initiating reassessment proceedings in the reasons so recorded there
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is only general mention about transaction totalling Rs. 1,50,32,635/-. It was not
specified as to from which company how much amount was allegedly taken as
loan. It was also pointed out by the Id. AR that Id. AO has made no effort to link
the reasons recorded with material available on record, as in the reasons recorded
it was alleged that appellant has introduced its unaccounted cash in the bank
account of various dummy / paper companies, without specifying as to which are
those companies where appellant allegedly deposited the cash and even in the
final reassessment order no such specific details have been mentioned. It clearly
reflects that reasons recorded were purely mechanical in nature and are
generalized, without having any specific detail and evidence related to the
appellant.
Decision:-
1. Information was received by the Id. AO from the Income Tax officer (Inv.),
Unit- 1 & AJU, Kolkata, vide letter no. 9301 dt. 06.03.2018. As per the information
and material provided by the investigation wing, it was seen that the assessee
company has accepted deposits from dummy companies in the form of RTGS/
Transfer through circulatory fashion of money. The transaction appears to be
circular nature and the account appears to have been part of a chain of accounts
used for routing large funds transfers. Appellant received transfer from different
shell companies' a/c having no business. Number of bank accounts of these shell
companies/concerns were used for effectuating the routing of these entries. As
regards reasons recorded is concerned, it is seen that the Id. AO has recorded the
reasons after going through the material available with him. In the said material
name of the two companies namely M/s Raj Rajeshwari Metals and Minerals
Traders Pvt. Ltd. and Mis Glorious Merchandise Pvt. Ltd. was mentioned and the
appellant did have transaction with these two companies during the year.
In the appeal the appellant has stated that no unsecured loan or share capital was
received from these two parties during the year, however in the reasons of
reopening no such fact has been stated that the appellant received unsecured loan
or share capital from these two parties. In the reasons of reopening the leamed AO
has stated that credits were received from these two parties. At the stage of
forming of the reasons of reopening the conclusive finding cannot be arrived at
due to the limited records of the appellant available on the file of the assessing
authority. At this stage there is no requirement to arrive at the conclusive nature of
the transaction. At the same time there is no error or contradiction in the reasons
of reopening. The appellant did receive the credits from these two companies and
addition has also been made in the assessment order in this regard. For reference
the reasons of reopening are extracted as under:-
"Reasons for reopening of the case:
1 Brief details of the assessee; The assessee is a company Le M/s
TijariyaPolypipes Ltd., A-130, Road No. 9D, VKI Area, Jaipur As per ITR filed on
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ITA NO.616/JPR/2024
TIJARIA POLYPIPES LTD VS DCIT CIRCLE-4, JAIPUR
29.09.2013 for the A.Y. 2013-14, the assessee has declared total Income of Rs.
NIL and carried forwarded unabsorbed depreciation of Rs. 1,90,73,215/-
2. Brief details of information collected/received by the AO: The information has
been received from the ITO(Inv.). Unit 1 & AIU, Kolkata vide letter No. 9301 dated
06.03.2018 in the case. As per credible information certain bank account
transactions appeared suspicious. The transactions appear to be circular nature
and the account appears to have been part of a chain of accounts used for routing
large funds transfers. In course of verification, bank statements of numbers of
accounts have been obtained. Bank account statement of the company (1) M/s
Amulya Distributors Pvt. Ltd. (account no 0015-R26084-050 IndusInd Bank), (2)
M/s Moonshine Distributors Pvt. Ltd. (account no. 0015-R25031-050 IndusInd
Bank), (3) Shivganga Suppliers Pvt. Ltd. (account no. 0015- R25020-050 Indusind
Bank) (4) Intime Distributors Pvt Ltd (account no. 0015-R26085-050 Indusind
Bank) (5) M/s Glorious Merchandise Pvt Ltd. (account no. 0515-AA1118-050
Indusind Bank) (6) Shivshakti Tradelink Company (account no. 0515-AA1249-050
IndusInd Bank) (7) R R Enterprise (account no. 0515-AA1250-050 Indusind Bank)
(8) Raj Rajeswari Metals & Minerals Traders Pvt Ltd (account no. 0515-AA1286-
050 IndusInd Bank) were verified as mentioned in the dissemination note.
Erstwhile investigation officer issued summons u/s 131 of the Income Tax Act,
1961 to all the companies as mentioned in the information, but non of
representative or directors appeared on behalf of the companies. Therefore, there
transactions remained unexplained. As per database of shell companies, (1) M/s
Moonshine Distributors Pvt. Ltd. (2) Shivganga Suppliers Pvt. Ltd. etc are shell
companies. Profiling all the companies mentioned in the STR has been done. It is
found that some of them are non-filer and some of them had no business as per
Profit and Loss accounts and even do not paid any rent or had any fixed asset to
run a business. Other proprietorship concerns are also non filer as per ITD
database. These facts prove that none of these companies did any kind of
business as declared by them. Further, they have regular transactions with each
other and money circulation have been observed, Funds are deposited in cash in
various companies account and the same is then transferred in a circulatory
fashion to transfer the fund to beneficiaries. On perusal of the bank accounts of all
the companies. It is observed that there are cash deposits and RTGS credits and
transfers from different a/cs and simultaneously the said amount transferred to the
different a/cs through RTGS/transfer Subsequently, funds were transferred to
different current accounts.
From the above, it can be inferred that the out of beneficiary companies took
entries from the shell companies which do not have any real business and was
operated only to bring their unaccounted money in the books. In this process these
beneficiary companies gradually brought their unaccounted cash bank in the
books without paying any tax.
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ITA NO.616/JPR/2024
TIJARIA POLYPIPES LTD VS DCIT CIRCLE-4, JAIPUR
3. Analysis of information collected/received: As per information, the assessee
company has introduced its unaccounted cash of Rs. 1,50,32,635/- in various
dummy/paper companies and gradually brought back the same in its books of
account in the form of RTGS/Transfer through circulatory fashion of money without
paying any tax.
4. Enquiries made by the AO as sequel ot information collected /received:-
The specific information was received from the ITO(Inv.) Unit-1 & AIU, Kolkata.
The information is specific and after going through this it is found that no further
inquiries is necessary before recording satisfaction for issuance of notice.
5. Findings of the AO: During investigation made by the department it was found
that some companies did not do any kind of business as declared by them and
they have regular transactions with each other and money circulation have been
observed. Funds are deposited in cash in various companies accounts and the
same is then transferred in a circulatory fashion to transfer the fund to
beneficiaries. The assessee is also one of such beneficiaries who have deposited
its cash in various dummy/paper companies and gradually brought back the same
in its books of account in the form of RTGS/Transfer through circulatory fashion of
money without paying any tax. Therefore it is a fit case for initiation of assessment
proceeding for escapement of income by the assessee.
6. Basis of forming reason to believe and details of escapement of income:
The information has been received from the ITO(Inv.), Unit-1 & AIU, Kolkata vide
letter No. 9301 dated 06.03.2018 in this case. As per credible information certain
bank account transactions appeared suspicious. The transactions appear to be
circular nature and the account appears to have been part of a chain of accounts
used for routing large funds transfers. In course of verification, bank statements of
number of accounts have been obtained. Bank account statement of the company
(1) M/s Amulya Distributors Pvt. Ltd. (account no 0015-R26084-050 Indusind
Bank), (2) M/s Moonshine Distributors Pvt. Ltd. (account no. 0015- R25031-050
IndusInd Bank), (3) Shivganga Suppliers Pvt. Ltd. (account no. 0015-R25020-050
IndusInd Bank) (4) Intime Distributors Pvt Ltd (account no. 0015-R26085-050
IndusInd Bank) (5) M/s Glorious Merchandise Pvt Ltd. (account no. 0515-AA1118-
050 IndusInd Bank) (6) Shivshakti Tradelink Company (account no. 0515-AA1249-
050 Indusind Bank) (7) R R Enterprise (account no. 0515-AA1250-050 Indusind
Bank) (8) Raj Rajeswari Metals & Minerals Traders Pvt Ltd (account no. 0515-
AA1286-050 Indusind Bank) were verified as mentioned in the dissemination note.
Erstwhile investigation officer issued summons u/s 131 of the Income Tax Act,
1961 to all the companies as mentioned in the information, but none of
representative or directors appeared or behalf of the companies. Therefore, there
transactions remained unexplained. As per database, of shell companies, (1) M/s
Moonshine Distributors Pvt Ltd (2) Shivganga Suppliers Pvt Ltd etc are shell
companies. Profiling all the companies mentioned in the STR has been done, It is
found that some of them are non-filer and some of them had no business as per
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ITA NO.616/JPR/2024
TIJARIA POLYPIPES LTD VS DCIT CIRCLE-4, JAIPUR
Profit and Loss accounts and even do not paid any rent or had any fixed asset to
run a business. Other proprietorship concerns are also non filer as per ITD
database. These facts prove that none of these companies did any kind of
business as declared by them. Further, they have regular transactions with each
other and money circulation have been observed. Funds are deposited in cash in
various companies account and the same is then transferred in a circulatory
fashion to transfer the fund to beneficiaries. On perusal of the bank accounts of all
the companies, It is observed that there are cash deposits and RTGS credits and
transfers from different a/cs and simultaneously the said amount transferred to the
different a/cs through RTGS/transfer. Subsequently, funds were transferred to
different current accounts.
From the above, it can be Inferred that the out of beneficiary companies took
entries from the shell companies which do not have any real business and was
operated only to bring their unaccounted money in the books. In this process these
beneficiary companies gradually brought their unaccounted cash bank in the
books without paying any tax. The assessee is also one of such beneficiaries who
have deposited its cash in various dummy/paper companies and gradually brought
back the same in its books of account in the form of RTGS/Transfer through
circulatory fashion of money without paying any tax. Apart from above, I have also
gone through the assessment records and ITR filed for the year under
consideration by the assessee but nowhere this transaction has been shown by
the assessee. Therefore it is a fit case for initiation of assessment proceeding u/s
147 of the IT Act, 1961 for escapement of income by the assessee.
7. Escapement of income chargeable to tax in relation to any assets
(including financial interest in any entity) located outside India; As of now, no,
such information is available in respect of the assessee
8. Applicability of the provisions of section 147/151 to the facts of the case:
Provisions of Section 147/151 are applicable in the case of the assessee. In this
case, a return of income was filed for the year under consideration and regular
assessment u/s 143(3) was made on 12.03.2016. Since, 4 years from the end of
the relevant assessment year have expired in this case, the requirement to initiate
proceedings u/s 147 of the Act are reason to believe that income for the year
under consideration has escaped from assessment because or failure on the part
of the assesses to disclose fully and truly all material facts necessary for the
regular assessment for the assessment year under consideration.
I have reason to believe that the above discussed income has escaped from
assessment for the year under consideration and the reason for the same has
already been recorded above in Para 6. I have carefully considered the
assessment records containing the submissions made by the assessee in
response to various notices issued during the original assessment proceedings u/s
143(3) of the I.T Act, and it is found that the assessee has not disclosed fully and
truly all the material facts necessary for the regular assessment for the year under
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consideration. In view of the discussion held in above paras, provisions of clause
(c) of explanation 2 to section 147 of the IT Act are clearly applicable to the facts of
this case. Therefore, I have reason to believe that the assessment year under
consideration is deemed to be a fit case where income chargeable to tax has
escaped from assessment."
1. In the case of Nova Promoters &Finlease P. Ltd (2012) 342 ITR 169 (Delhi), the
Hon'ble Delhi High Court held that prima facie belief of AO is enough that income
escaped assessment is enough at the stage of reopening and merits of the matter
are not relevant. In the case of Peass Industrial Engineers (P) Ltd (2016)
Taxmann.com 106 (Gujarat), it was held on the basis of tangible material in the
form of specific information received from Investigation Wing regarding bogus
transactions, re-opening u/s 147 is justified.
1. What is to be seen at the stage of recording the reasons is existence of belief
based on faithful appreciation of material which has link to an income escaping
assessment, but not the established fact of escapement of income by detailed
investigation or legal analysis. In other words, at the point of time of initiating the
reassessment proceedings, existence, and not adequacy of reasons, is material.
This view is supported by the decision in case of Rajesh Jhaveri Stock Brokers (P)
Ltd. 291 ITR 500 (SC), CARTIER SHIPPING CO. LTD. 40 DTR 459 (Mumbai
Trib), Praful Chunilal Patel 148 CTR (Guj.). The sufficiency of reasons cannot be
looked into by courts and there must be recording of prima facie belief has also
been held in cases of Raymond woollen mills 236 ITR 34 (SC), Phool Chand
Bjaranglal 203 ITR 456 (SC), K R Sadayappan 63 ITR 219 (SC). In case of Multi
Screen Media (P) Ltd. 324 ITR 54 (Bom) the Bombay High Court after considering
the decision in case of CIT vs. Kelvinator of India Ltd. (2010) 320 ITR 561 (SC)
has observed as under:
"where the AO purports to exercise power under s. 147 within a period of four
years from the end of the relevant assessment year, the condition precedent to the
exercise of the power is the existence of a reason to believe that any income
chargeable to tax has escaped assessment. The expression 'reason to believe'
must obviously be that of a prudent person and it is on the basis of the reasons
recorded by the AO that the question as to whether there was a reason to believe
that income has escaped assessment, has to be determined. At the same time,
the sufficiency of the reasons for reopening an assessment does not fall for
determination at the stage of a reopening of assessment. When the Court is
concerned with a challenge to a notice under s.148, the issue is not as to whether
it can be conclusively demonstrated that income had escaped assessment, but
whether as a matter of fact, there was a reason to believe that this was so, to
justify a recourse to the power under s.147."
1. The requirement, thus for reopening of assessment, is "reasonable belief. This
expression is not synonymous with Assessing Officer having finally ascertained
the fact by any legal evidence or conclusion. In this context, the Supreme Court in
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the case of Rajesh Jhaveri Stock Brokers Private Limited [Supra] had observed as
under :-
"Section 147 authorizes and permits the Assessing Officer to assess or reassess
income chargeable to tax if he has reason to believe that income for any
assessment year has escaped assessment. The word reason in the phrase reason
to believe would mean cause or justification. If the Assessing Officer has cause or
justification to know or suppose that income had escaped assessment, it can be
said to have reason to believe that an income had escaped assessment. The
expression cannot be read to mean that the Assessing Officer should have finally
ascertained the fact by legal evidence or conclusion. The function of the Assessing
Officer is to administer the statute with solicitude for the public exchequer with an
inbuilt idea of fairness to taxpayers. As observed by the Delhi High Court in
Central Provinces Manganese Ore Co. Ltd. v. ITO (1991 (191) ITR 662] for
initiation of action under section 147 (a) (as the provision stood at the relevant
time) fulfillment of the two requisite conditions in that regard is essential. At that
stage, the final outcome of the proceeding is not relevant. In other words, at the
initiation stage, what is required is reason to believe, but not the established fact of
escapement of income. At the stage of issue of notice, the only question is
whether there was relevant material on which a reasonable person could have
formed a requisite belief. Whether the materials would conclusively prove the
escapement is not the concern at that stage. This is so because the formation of
belief by the Assessing Officer is within the realm of subjective satisfaction (see
ITO v. Selected Dalurband Coal Co. Pvt. Ltd. [1996 (217) ITR 597 (SC)); Raymond
Woollen Mills Ltd. v. ITO (236) ITR 34 (SC)]."
1. In the case of Raymond Woollen Mills Limited v. Income Tax Officer & Ors.
[Supra], the Apex Court held and observed as under:
"In this case, we do not have to give a final decision as to whether there is
suppression of material facts by the assessee or not. We have only to see whether
there was prima facie some material on the basis of which the Department could
reopen the case. The sufficiency or correctness of the material is not a thing to be
considered at this stage. We are of the view that the court cannot strike down the
reopening of the case in the facts of this case. It will be open to the assessee to
prove that the assumption of facts made in the notice was erroneous. The
assessee may also prove that no new facts came to the knowledge of the Income-
tax Officer after completion of the assessment proceeding. We are not expressing
any opinion on the merits of the case. The questions of fact and law are left open
to be investigated and decided by the assessing authority. The appellant will be
entitled to take all the points before the assessing authority. The appeals are
dismissed. There will be no order as to costs." 12. Lastly, it is well settled that the
validity of the notice of reopening would be judged on the basis of reasons
recorded by the Assessing Officer for issuance of such notice. It would not be
permissible for the Assessing Officer to improve upon such reasons or to rely upon
some extraneous material to support his action. Reference in this respect can be
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made to the decision of this Court in the case of Aayojan Developers v. Income-tax
Officer, reported in [2011] 335 ITR 234 (Guj)"
1. In the judgement in the case of Principal CIT vs. Paramount Communication
Pvt. Ltd. (2017) 392 ITR 444 (Delhi), Hon'ble High Court of Delhi, has held as
under-
''8......... While it is true that the court is conscious that the reassessment notice
should not have been routinely issued, at the same time, the nature of power is
wide enough that when there an escapement of income and the Revenue has
information ruling that this escapement is also relatable to suppression of material
facts (which could include false claims), the power to reopen concluded
assessment can validly be exercised. The consideration which ought to weigh with
the Revenue and are considered valid are the existence of tangible material or
information in the light of the judgment in CIT v. Kelvinator of India [2010] 320 ITR
561 (SC)"
1. In the judgement in the case of AGR Investment Ltd. vs. Additional CIT &Anr
(2011) 333 ITR 146, Hon'ble High Court of Delhi, has held as under:-
"It is also noticeable that there was specific information received from the office of
the DIT (INV-V) as regards the transactions entered into by the assessee-
company with number of concerns which had made accommodation entries and
they were not genuine transactions. As we perceive, it is neither a change of
opinion nor does it convey a particular interpretation of a specific provision which
was done in a particular manner in the original assessment and sought to be done
in a different manner in the proceeding under section 147 of the Act. The reason to
believe has been appropriately understood by the Assessing Officer and there is
material on the basis of which the notice was issued."
1. In the judgement in the case of Sterlite Industries (India) Ltd. Vs. ACIT
&Anr.(2008) 302 ITR 275, Hon'ble High Court of Madras, has held:-
The definite stand of the department was that the previous sanction from the
Commissioner had been obtained and credible information had been received
related to the year 2000-01. It was also stated that an adjudication order dated 22-
8-2007 had already been passed and dispatched to the assessee but he did not
receive the same. [Para 9]
In the instant case, it was only required to see whether there was any prima facie
material available on the basis of which the department could reopen the file. In
view of the counter-affidavit and the impugned notice, the case of the revenue for
invoking the power under sections 147 and 148 could not be rejected. [Para 11]
In the light of the above, the writ petition was to be dismissed. [Para 12]
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1. In the judgement in the case of Shalimar Buildcon (P) Ltd. vs. ITO(2011) 128
ITD 396: ITAT, Jaipur 'B' Bench, Hon'ble ITAT, has held:-
Names of the companies were intimated to the AO by the Investigation Wing
information was given that the companies belonging to B.C.&Co. were engaged in
accommodation entries.
1. In the judgement in the case of ITO vs. Smt. Gurinder Kaur (2006) 102 ITD
0189: ITAT, Delhi'A' Bench, Hon'ble ITAT, has held:-
The material before the AO-the letter received from the CIB-had a rational or live
link with the formation of the belief that income chargeable to tax has escaped
assessment in the assessee's case. The belief was bona fide held, it was not a
pretence. The material gave rise to "reason to believe" and not merely "reason to
suspect. No doubt as pointed out by the CIT(A), the list of 41 persons to whom K is
supposed to have made gifts did not contain the name of the assessee.
The AO had relied on the letter of the CIB which contained a clear statement that
the Investigation wing has noticed that the assessee has purchased the gifts from
K by paying cash including the premium. This letter constitutes relevant material
for the formation of the belief, not mere suspicion, that income chargeable to tax
has escaped assessment in the assessee's case.
1. It is to be noted that the AO had material before him for formation of reasonable
belief of escapement which had live nexus with the material in his possession for
assuming the valid jurisdiction for reopening u/s. 147.
1. Objections to reopening:-
As regards not dealing the objection against reassessment proceedings is
concerned, the status is not clear. There is no date mentioned on the objection
letter (PB Page 64) and there is no acknowledgement stamp of office of the AO on
such letter The filing status is not ascertainable. Further, if the same was filed, it is
not the case that the appellant had requested the Id. AO for the copy of the order
disposing objections and in reply it was communicated that such order was not
passed. It cannot be conclusively said from the documents placed on record that
the objections were not disposed off by the Id. AO. The powers of the CIT Appeal
are coterminous with that of AO and the objections have been dealt with in this
order as well.
In the objection letter (PB Page 64), the appellant has incorrectly stated that
appellant has not received any amount from these companies during the year
(second para on Page 3 of objections letter at PB page 66). Further the appellant
has wrongly referred in the objection letter to the share application money and the
unsecured loan as having been mentioned in the reasons of reopening, whereas
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there is no such conclusion in the reasons of reopening. The objections to the
reasons of reopening are referring to / in context of incorrect facts
The appellant has also contended in the objections letter that exact amount is not
mentioned by the learned AO in the reasons of reopening whereas it is seen that
this contention is incorrect as in para 3 of the reasons of reopening the exact
amount received by the appellant from these shell/bogus companies has been
mentioned (PB page 61).
Further as per the legal procedure established through the judgements of Hon'ble
High Courts and Hon'ble Supreme Court is that in case the objections against the
reasons of reopening are not disposed by the Id. AO the assesse can challenge
the same in writ petition. That itself does not per se in itself render the entire
proceedings as illegal. In such several cases the view and the judgements of
Hon'ble Courts have been that the assessing officer is directed to dispose off the
objections. And in case in such matter, if the assessment order is also already
passed, the assessment order is set aside and the proceedings are restored to the
stage of disposal of objections and the assessing officer can pass the assessment
order thereafter
In the case of Home Finders Housing Ltd. v. Income-tax officer, Corporate Ward
2(3), Chennai [2018] 93 taxmann.com 371 (Madras) [2018] 404 ITR 611
(Madras)/[2018] 303 CTR 269 (Madras) (25-04-2018) it has been held by the
Hon'ble Madras High Court that non-compliance of direction of Supreme Court in
GKN Driveshafts (India) Ltd. v. Income Tax Officer [2002] 125 Taxman 963
regarding disposing of objections by passing a speaking order, would not make
reassessment order void ab initio. Relevant para of the order are as under-
"19. The core question is as to whether non compliance of a procedural provision
would ipso facto make the assessment order bad in law and non-est. The further
question is whether it would be permissible to comply with the procedural
requirement later and pass a fresh order on merits.
20. The learned counsel for the appellant by placing reliance on an order passed
by the learned Single Judge in Mrs.Jayanthi Natarajan (cited supra) submitted that
the order being one made without complying with the mandatory procedure, is non
est in law and it cannot be given life by complying with the procedure later. In
short, it is the contention that non compliance of a prescribed procedure would
nullify the order and the irregularity cannot be cured later.
21. The learned counsel for the Revenue contended that the order dated 14
September 2017 in W.P.No, 1905 of 2017 is bad in law. It was passed ignoring the
order passed by a Coordinate Bench which is challenged in this appeal.
22. Since the learned counsel for the appellant placed heavy reliance on the view
expressed in Mrs.Jayanthi Natarajan's case (supra), we have perused the said
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order. We are in respectful disagreement with the views expressed by the learned
Single Judge in W.P.No. 1905 of 2017.
23. The learned Single Judge by placing reliance on the decision of the Supreme
Court in Sona Builders, quashed the assessment order without remitting the matter
to the Assessing Officer for compliance of the procedure regarding disposal of
objection. In Sona Builders, it was the admitted case that only one week before the
expiry of the period of limitation, the reassessment proceedings were taken. The
Supreme Court found that the notice to the assessee was posted on 24 May 1993.
Though there were five days left to pass the order, within the period of limitation,
two days were Saturday and Sunday. The Supreme Court on the facts and
circumstances of the case quashed the proceedings without remitting it for passing
fresh orders. The learned Single Judge was therefore not correct in quoting Sona
Builders's case (supra) for giving an indication that in case there is a procedural
irregularity, it would vitiate the entire proceedings.
24. In case an order is passed without following a prescribed procedure, the entire
proceedings would not be vitiated. It would still be possible for the authority to
proceed further after complying with the particular procedure.
25. The enactments like the Land Acquisition Act, 1894, contain mandatory
provisions like Section 5A, the non compliance of which would vitiate the
declaration under Section 6 of the Act. Even after quashing the declaration for non
compliance of Section 5A, the Court would permit the conduct of enquiry and pass
a fresh declaration within the period of limitation.
26. We therefore make the position clear that non compliance of the procedure
indicated in the GKN Driveshafts (India) Ltd.'s case (supra) would not make the
order void or non est. Such a violation in the matter of procedure is only an
irregularity which could be cured by remitting the matter to the authority. The first
issue is accordingly answered against the appellant."
(Emphasis supplied)
In the case of Saroj Jalan v. Union of India [2022] 143 taxmann.com 33.
(Calcutta)[19-07-2022] it is held by the Hon'ble Calcutta High Court as under-
5. Mr. Bhattacharji, learned advocate appearing for the respondent income tax
authonty, by the order of this Court dated 15th July, 2022. was asked to produce
the record to establish as to whether the impugned assessment order and the
aforesaid objection of the petitioner against notice under section 148 of the Act
was considered and disposed of or not to which Mr. Bhattacharjee could not
produce any specific record to show that before passing the impugned
assessment order the aforesaid objection of the petitioner dated 8th July, 2021
was considered and disposed of. It is highly unfortunate that the assessing officer
concerned through Mr. Bhattacharjee has produced irrelevant record in total non-
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application of mind since those documents have no relevance to the queries asked
by this Court by the order dated 15th July, 2022.
6. Considering the facts and circumstances of this case as appears from record
and submission of the parties and the aforesaid judgments relied upon by the
petitioner, I am of the considered view that the impugned assessment order dated
31st March, 2022 being Annexure P-11 to the writ petition passed is in clear
violation of the law laid down by the Hon'ble Supreme Court in the case of GKN
Driveshafts (India) Ltd. (supra) and the same is not sustainable in law since it was
passed without considering and disposing objection of the petitioner by passing a
speaking order which he was obliged to do in view of the decision of the Apex
Court in the case of GKN Driveshafts (India) Ltd. (supra) before proceeding any
further in the impugned reassessment proceeding.
7. In view of the discussion made above impugned assessment order is quashed
and the matter is remanded back to the assessing officer concerned to first
dispose of the aforesaid objection of the petitioner against impugned notice under
section 148 of the Income-tax Act by passing a reasoned and speaking order and
after giving an opportunity of hearing to the petitioner or its authorised
representatives and any further proceeding with the impugned assessment
proceeding will depend upon the final outcome of the aforesaid objection of the
petitioner which has to be considered accordingly and by passing a reasoned and
speaking order."
Emphasis supplied)
In the case of Lucas TVS Ltd. v. Assistant Commissioner of Income-tax [2024]
160 taxmann.com 228 (Madras) [13-12-2023] it is held by the Hon'ble Madras
High Court as under.-
"25. It is submitted that after the reasons were furnished to the petitioner, the
petitioner did not ask for a separate speaking order disposing of the objection of
the petitioner. It is further submitted that, the reopening of the assessment was not
inspired from change of opinion.
26. I have considered the submission of the learned counsel for the petitioner.
Wide powers vested for reopening the assessment under section 148 read with
section 147 of the Income Tax Act, 1961.
27. It is precisely for this reason, the Hon'ble Supreme Court had held that a
speaking order should be passed after the assessee is furnished with reasons for
reopening of the assessment. In this case, the safeguards enunciated by the
Honourable Supreme Court in GKN Driveshafts (India) Ltd. (supra) has been
ignored by directly passing the impugned assessment order. Therefore, impugned
assessment order is therefore not sustainable.
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28. Therefore, the impugned order is set aside and the case is remitted back to the
respondent to pass a fresh order disposing of the petitioner's objection in the light
of the decision of Supreme Court in GKN Driveshafts (India) Ltd. (supra)."
(Emphasis supplied)
The appellant could have challenged the reasons of reopening by filing of
objections before the Id. AO and if not satisfied with the order disposing objection
then he could go before the Hon'ble High Court in Writ Petition as per the
judgement of Hon'ble Supreme Court in the case of GKN Drivesharfts (India)
Ltd. [2003] 259 ITR 19 and the judgement of Hon'ble Gujarat High Court in the
case of Garden Finance Limited reported in 268 ITR 48. Extract from the
Judgement of Hon'ble Gujarat High Court in the case of Garden Finance Limited
[268 ITR 48] is as under:-
"12. What the Supreme Court has now done in the GKN's case (supra) is not to
whittle down the principle laid down by the Constitution Bench of the Apex Court in
Calcutta Discount Co. Ltd.'s case (supra) but to require the assessee first to lodge
preliminary objection before the Assessing Officer who is bound to decide the
preliminary objections to issuance of the re-assessment notice by passing a
speaking order and, therefore, if such order on the preliminary objections is still
against the assessee, the assessee will get an opportunity to challenge the same
by filing a writ petition so that he does not have to wait till completion of the re-
assessment proceedings which would have entailed the liability to pay tax and
interest on re-assessment and also to go through the gamut of appeal, second
appeal before Income-tax Appellate Tribunal and then reference/tax appeal to the
High Court."
.......
15. The upshot of the above discussion is that while the GKN's case (supra) does
not purport to divest the Court of its constitutional power to issue a writ of
prohibition or any other appropriate writ in a fit case to restrain the assessing
authority from proceeding with the notice under section 148, the GKN's case
(supra) does lay down that ordinarily the procedure to be followed would be as
indicated in the GKN case, that is, after receiving reasons, the assessee shall
lodge his preliminary objections before the Assessing Officer against the notice for
reassessment and the Assessing Officer will decide the objections by a speaking
order so that an aggrieved assessee can challenge the order in a writ petition.
1. As per the judgement of Hon'ble Supreme Court in the case of GKN
Drivesharfts (India) Ltd. [2003] 259 ITR 19 and the judgement of Hon'ble Gujarat
High Court in the case of Garden Finance Limited reported in 268 ITR 48-
challenge to the reassessment proceedings is to be done in two stages (1)
challenging the reasons of reopening and (ii) challenging the assessment order.
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The order of the AO on the challenge to the reasons of reopening is not an
appealable order. Appellant's challenge to the order of the assessing officer not
disposing/rejecting the objections against the reasons of reopening and appellant's
challenge to the assessment order are two separate proceedings. The CIT(A)
does not have power to set aside the matter to the Id. AO whereas setting aside is
the ratio of judgments in Home Finders Housing Ltd. (Supra). Saroj Jalan(Supra),
Lucas TVS Itd. (Supra). Further the appellant has not filed the writ petition which is
the ratio of judgements in GKN Drivesharfts (Supra) and Garden Finance (Supra).
Further the status of filing of objections and disposal there off is not clearly shown
by appellant.
1. Objection regarding no failure on the part of assessee to disclose fully and truly
all material facts necessary for the assessment as the case was reopened beyond
four years is concerned, it is seen that appellant is having accommodation entry
transactions with these two parties and same was not disclosed. It is clear that
there was a failure on the part of assessee to disclose fully and truly all material
facts necessary for the assessment. This satisfaction is also clearly discernible
from the reasons of reopening recorded by the learned AO. The objections in this
regard are hereby rejected.
In view of these facts and circumstances and considering the legal position on the
issue under consideration, it is found that the reasons of reopening have been
properly recorded and the notice under section 148 of the Act has been issued
legally and the other objections of the appellant have also been dealt with in the
paragraphs above. Accordingly grounds of appeal No. 1 to 1.3 are hereby
dismissed.''
3.2 During the course of hearing, the ld. AR of the assessee submitted
that reassessment proceedings-initiated u/s 148 is bad in law and
consequent reassessment order passed deserves to be quashed. The ld.
AR reiterated the same written submission as made before the ld. CIT(A)
and it is not imperative to repeat.
3.3 On the other hand, the ld. DR supported the of the ld. CIT(A) and
submitted the following case laws as to the reopening of assessment u/s
147 & 148 of the Act
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Case laws compilation regarding reopening of assessment u/s 147/148 of the
I.T. Act, 1961
Sr. No. Name of the case
1. [1999] 236 ITR 34 (SC) SUPREME COURT OF INDIARaymondWoollen Mills Ltd.v.
Income-tax Officer
2. [2023] 148 taxmann.com 446 (Delhi) HIGH COURT OF DELHI Saif II Mauritius Company
Ltd.v. Assistant Commissioner of Income-tax
3. [1999] 103 TAXMAN 562 (PAT.)HIGH COURT OF PATNAP.K. Haldar
&Co.v.Commissioner of Income-tax
4. [2002] 123 Taxman 756 (Calcutta) HIGH COURT OF CALCUTTA Ispat Industries Ltd. v.
Deputy Commissioner of Income-tax
5. [2023] 153 taxmann.com 25 (Gujarat) HIGH COURT OF GUJARAT Akshat Pramodkumar
Chaudhary v. Deputy Commissioner of Income-tax
6. [2022] 139 taxmann.com 198 (Gujarat) HIGH COURT OF GUJARAT Amar
JewellersLtd.v.Assistant Commissioner of Income-tax
7. [2018] 94 taxmann.com 393 (Gujarat) HIGH COURT OF GUJARAT Amit Polyprints (P.)
Ltd.v.Deputy Commissioner of Income-tax
8. [2018] 91 taxmann.com 119 (Gujarat) HIGH COURT OF GUJARAT Aradhna Estate (P.)
Ltd.v.Deputy Commissioner of Income-tax, Circle-1(1)
9. [2023] 152 taxmann.com 573 (SC) SUPREME COURT OF INDIA Ajay Gupta v. Income-tax
Officer
10. [2019] 101 taxmann.com 231 (Madhya Pradesh) HIGH COURT OF MADHYA PRADESH
EtiamEmediaLtd.v. Income-tax Officer-2(2)
11. [2020] 115 taxmann.com 338 (Delhi) HIGH COURT OF DELHI Experion Developers (P.)
Ltd.v.Assistant Commissioner of Income-tax
12. [2018] 91 taxmann.com 181 (Gujarat) HIGH COURT OF GUJARAT Jayant Security &
Finance Ltd.v.Assistant Commissioner of Income-tax, officer Circle 1(1)
13. [2012] 18 taxmann.com 83 (Delhi) IN THE ITAT DELHI BENCH Ms. Rainee Singhv.Income-
tax Officer
14. [1995] 83 TAXMAN 194 (MAD.)HIGH COURT OF
MADRASPanchugurumurthyv.Commissioner of Income-tax
15. [2016] 72 taxmann.com 302 (Gujarat) HIGH COURT OF GUJARAT Peass Industrial
Engineers (P.) Ltd. v. Deputy Commissioner of Income-tax
16. [2020] 114 taxmann.com 718 (Gujarat) HIGH COURT OF GUJARAT Purnima Komalkant
Sharma v. Deputy Commissioner of Income-tax, Circle 1
17. [2022] 139 taxmann.com 409 (Gujarat) HIGH COURT OF GUJARAT Pushpa Uttamchand
Mehta v. Income-tax Officer
18. [2023] 153 taxmann.com 282 (Kolkata - Trib.) IN THE ITAT KOLKATA BENCH 'A'
Tarasafe International (P.) Ltd. v.Deputy Commissioner of Income-tax
19. [2021] 128 taxmann.com 229 (Gujarat) HIGH COURT OF GUJARAT
BhanubenMansukhlalKhimashiav.Income Tax Officer Ward 3(1)
20. [2021] 129 taxmann.com 48 (Gujarat) HIGH COURT OF GUJARAT Kaushaliya
SampatlalDudaniv.Income-tax Officer, Ward 1(3)
21. [2021] 129 taxmann.com 119 (Gujarat) HIGH COURT OF GUJARAT Nishant Vilaskumar
Parekh v.Income-tax Officer, Ward 1(3)
22. [2022] 138 taxmann.com 50 (Gujarat) HIGH COURT OF GUJARAT Nishant Vilaskumar
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Parekh v.Income-tax Officer
23. [2021] 131 taxmann.com 42 (Gujarat) HIGH COURT OF GUJARAT Sameer Gulabchand
Shah HUF v. Income-tax Officer, Ward 1(3)
24. [2021] 127 taxmann.com 679 (Gujarat) HIGH COURT OF GUJARAT Silverdale Inn (P.) Ltd.
v. Income Tax Officer
25. [2021] 129 taxmann.com 68 (Gujarat) HIGH COURT OF GUJARAT VilasVrajlal Parekh
HUF v.Income-tax Officer, Ward(1)3
26. [2021] 133 taxmann.com 397 (Gujarat) HIGH COURT OF GUJARAT Zaveri & Company (P.)
Ltd.v.Deputy Commissioner of Income-tax
27. [1980] 4 Taxman 83 (Delhi) HIGH COURT OF DELHI Commissioner of Income-tax v. H.P.
Sharma S. RANGANATHAN AND D.R. KHANNA, JJ
28. [2006] 151 Taxman 41 (Delhi) HIGH COURT OF DELHI Consolidated Photo &Finvest Ltd.
v. Assistant Commissioner of Income-tax
29. [2009] 315 ITR 84 (Bombay) HIGH COURT OF BOMBAY Yuvraj v. Union of India
30. [2011] 197 Taxman 415 (Delhi) HIGH COURT OF DELHI Honda Siel Power Products Ltd. v.
Deputy Commissioner of Income-tax.
31. [2012] 21taxmann.com438 (Delhi)HIGH COURT OF DELHIMoney Growth Investment &
Consultants (P.) Ltd.v.Income-tax Officer
32. [2014] 41taxmann.com21 (Delhi)HIGH COURT OF DELHIOPG Metals
&FinsecLtd.v.Commissioner of Income-tax
33. [2021] 128taxmann.com369 (Jaipur - Trib.)IN THE ITAT JAIPUR BENCH 'A'Smt. Uma
Mandalv.Income Tax Officer, Ward 5(4), Jaipur
34. [1997] 90 Taxman 553 (SC) SUPREME COURT OF INDIA
AssociatedStoneIndustries (Kotah) Ltd. v. Commissioner of Income-tax
It is also noted that the ld. DR has filed the synopsis of the case laws as to
the appeal filed by the assessee.
Synopsis of case laws
1. OWNERS AND PARTIES The court observed that Rules of procedure
INTERESTED IN M.V. "VALIPERO" are tools to achieve justice and are not hurdles
ETC.ETC Vs. FERNANDEO LOPEZ to obstruct the pathway to justice. Where the
& ORS on 19 September, 1989, outcome and fairness of the procedure have
1989 AIR 2206, 1989 SCR SUPL. been followed, there is no reason to discard
(1) 187, AIR 1989 SUPREME the result simply because certain details which
COURT 2206, 1989 (4) SCC 671, have not prejudicially affected the result have
(1990) 1 MAD LW 520, (1989) 4 JT been inadvertently omitted in a particular case.
10 (SC), (1990) 2 CALLT 1
2. Temple Of Thakurji vs State Of When sustained justice and technical
Rajasthan And Ors. on 30 consideration are pitted against each other,
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TIJARIA POLYPIPES LTD VS DCIT CIRCLE-4, JAIPUR
September, 1997, AIR 1998 RAJ 85, cause of substantial justice deserves to be
1997(2) WLN 535. preferred for the other side cannot claim to
3. Jai Jai Ram Manohar Lal vs National have vested right in injustice being done due
Building Material Supply, on 17 to some technical omission.
March, 1969, 1969 AIR 1267, 1970
SCR (1) 22, AIR 1969 SUPREME
COURT 1267
4. Ganesh Trading Co vs Moji Ram on
25 January, 1978, 1978 AIR 484,
1978 SCR (2) 614, AIR 1978
SUPREME COURT 484, 1978 2
SCC 91, 1978 REV LR 275, 1978 U
J (SC) 162, 80 PUN LR 458, 1978 2
SCR 614, 1978 2 SCJ 98.
5. Collector Land Acquisition, Anantnag
vs Mst. Katiji& Ors on 19 February,
1987, 1987 AIR 1353, 1987 SCR (2)
387, AIR 1987 SUPREME COURT
1353, 1987 21 STL 82, 1987
SCFBRC 147, (1987) 167 ITR 471,
(1987) 1 ALL WC 675, (1987) 1
APLJ 41, (1987) 1 LS 28, 1987
RAJLR 132, 1987 HRR 213, 1987
(12) ECC 346, 1987 REV LR 169,
1988 ALL CJ 114, (1987) 13 ALL LR
306, (1987) IJR 287 (SC), 1987
UJ(SC) 2 29, (1987) 1 JT 537 (SC),
1987 BLJR 465, ILR 1987 KANT
2844, 1987 (1) ALL RENT CAS 288
(2), (1987) 13 ECC 27, (1987) 1 ALL
RENTCAS 288(2), (1987) 28 ELT
185, (1987) 71 FJR 143, (1987) 1
LABLJ 500, (1987) 1 LANDLR 437,
(1987) 100 MAD LW 676, (1987) 66
STC 228, 1987 (2) SCC 107, (1987)
1 SUPREME 253, (1987) 1 CIVLJ
552, (1987) 62 COMCAS 370.
6. [1980] 4 Taxman 83 (Delhi) HIGH The court held that action under section 147 is
COURT OF DELHI Commissioner of permissible even if Assessing Officer gathered
Income-tax v. H.P. Sharma S. his reasons to believe from very same record
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RANGANATHAN AND D.R. as had been subject-matter of completed
KHANNA, JJ assessment proceedings. It was further held
7. [2006] 151 Taxman 41 (Delhi) HIGH that principle that a mere change of opinion
cannot be a basis for reopening completed
COURT OF DELHI Consolidated
assessments would have no application where
Photo &Finvest Ltd. v. Assistant order of assessment does not address itself to
Commissioner of Income-tax aspect which is basis for reopening of
8. [2009] 315 ITR 84 (Bombay) HIGH assessment.
COURT OF BOMBAY Yuvraj v.
Union of India
9. [2011] 197 Taxman 415 (Delhi) The court held that merely because material
HIGH COURT OF DELHI Honda Siel lies embedded in material or evidence, which
Power Products Ltd. v. Deputy Assessing Officer could have uncovered but
did not uncover, is not a good ground to deny
Commissioner of Income-tax.
or strike down a notice for reassessment.
10. Shri Pravinchandra R Patel, It is held that the date of issue would be the
Vadodara vs Dcit, Central Circle-2, date on which the same were handed over for
Vadodara on 13 January, 2022, service to the proper officer, which in fact of
(ITAT, Ahmedabad). the present case would be the date on which
11. [2011] 12 taxmann.com 198 the said notices were actually handed over to
(Gujarat) HIGH COURT OF the post office for the purpose of booking for
GUJARAT KanubhaiM. Patel (HUF) the purpose of effecting service on the
v. Hiren Bhatt or His Successors to assessee.
Office
The Reasons for Reopening of the
assessment
12. [1999] 236 ITR 34 (SC) SUPREME The Hon'ble SC held that in determining
COURT OF INDIA Raymond whether commencement of reassessment was
Woollen Mills Ltd. v. Income-tax valid, it has only to be seen whether there was
Officer prima facie some material on the basis of
which the department could reopen the case.
The sufficiency or correctness of material is
not a thing to be decided at this stage.
13 [2023] 148 taxmann.com 446 (Delhi) Since no scrutiny assessment had taken place
HIGH COURT OF DELHI Saif II in instant case and there was prima facie
Mauritius Company Ltd. v. Assistant material based on which reopening notice was
Commissioner of Income-tax issued within four years, sufficiency or
correctness of material would not be
considered at stage of issue of notice under
section 148.
14 [1999] 103 TAXMAN 562 (PAT.) It is held that in writ petition arising out of
HIGH COURT OF PATNA P.K. notice under section 148, Court is not
Haldar & Co. v. Commissioner of supposed to go into sufficiency or otherwise or
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Income-tax correctness of materials leading to notice, but
merely to see whether there is any material
before Assessing Officer on basis of which he
came to form reasonable belief that income
had escaped assessment.
15 [2002] 123 Taxman 756 (Calcutta) It is held that Court will only find out whether
HIGH COURT OF CALCUTTA Ispat there was any prima facie material to reopen
Industries Ltd. v. Deputy case and sufficiency or correctness cannot be
gone into by Court.
Commissioner of Income-tax
16 [2023] 153 taxmann.com 25 Where Assessing Officer had received
(Gujarat) HIGH COURT OF information from Investigation wing that
GUJARAT Akshat Pramodkumar assessee received accommodation entry in
Chaudhary v. Deputy Commissioner penny scrip, which was bogus in nature and
of Income-tax addition was required to be made to total
income of assessee and on basis of said
material before it, he was satisfied to harbour
reasons to believe that there was escapement
of income and on such basis, he had
exercised his powers under section 148, no
fault could be found in such reassessment
proceedings.
17 [2022] 139 taxmann.com 198 Where pursuant to survey under section 133A
(Gujarat) HIGH COURT OF conducted by Investigating Wing on BAS, he
GUJARAT Amar Jewellers Ltd. admitted on oath that he was engaged in
v.Assistant Commissioner of business of providing accommodation entries
Income-tax to beneficiaries in lieu of commission and had
named applicant as one of recipients of
accommodation entries and Assessing Officer
after examining facts formed belief that income
chargeable to tax had escaped assessment,
proceedings of reassessment initiated in cases
of applicant were justified.
18 [2018] 94 taxmann.com 393 Where reassessment proceedings were
(Gujarat) HIGH COURT OF initiated on basis of information received from
GUJARAT Amit Polyprints (P.) Investigation wing that assessee had received
Ltd.v.Deputy Commissioner of certain amount from shell companies working
Income-tax as an accommodation entry provider,
reassessment could not be held unjustified.
19 [2018] 91 taxmann.com 119 Where reassessment proceedings were
(Gujarat) HIGH COURT OF initiated on basis of information received from
GUJARAT Aradhna Estate (P.) Investigation wing that assessee had received
Ltd.v.Deputy Commissioner of certain amount from shell companies working
Income-tax, Circle-1(1) as an accommodation entry provider, merely
because these transactions were scrutinised
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by Assessing Officer during original
assessment, reassessment could not be held
unjustified.
20 [2023] 152 taxmann.com 573 (SC) SLP dismissed against order of High Court that
SUPREME COURT OF INDIA Ajay where a reopening notice was issued on
Gupta v. Income-tax Officer ground that assessee was beneficiary of
accommodation entry in form of long-term
capital gain (LTCG) on sale of shares which
was claimed as exempt under section 10(38),
since said transactions of sale and purchase of
shares were admitted by assessee and it had
not brought on record anything to suggest that
reassessment proceedings were being
undertaken in arbitrary manner, impugned
reopening notice was justified.
21 [2019] 101 taxmann.com 231 Where Assessing Officer had specific
(Madhya Pradesh) HIGH COURT information from DIT (Investigation) that
OF MADHYA PRADESH assessee company was merely a dummy
EtiamEmediaLtd.v. Income-tax concern of a person who allegedly used
Officer-2(2) dummy companies for routing his unaccounted
money and, further, assessee also had certain
amount of bogus share application, it could be
said that there was material on basis of which
notice under section 148 could be issued.
22 [2020] 115 taxmann.com 338 (Delhi) Where reassessment notice was issued on
HIGH COURT OF DELHI Experion basis of information received from DIT
Developers (P.) Ltd. v.Assistant (Investigation) that a parent company of
Commissioner of Income-tax assessee at Singapore had made an
investment of huge amount in assessee
company but said investing company did not
appear to be carrying out any regular business
activities and was floated to act as a conduit to
funnel funds into Indian companies, impugned
notice was justified.
23 [2018] 91 taxmann.com 181 Initiation of reassessment proceedings on
(Gujarat) HIGH COURT OF basis of information received from Investigation
GUJARAT Jayant Security & wing that assessee had received certain
Finance amount as a loan from a company, working as
Ltd.v.AssistantCommissioner of entry operator and earning bogus funds to
Income-tax, officer Circle 1(1) provide advances to various person, was
justified.
24 [2012] 18 taxmann.com 83 (Delhi) IN Validity of reassessment where AO had
THE ITAT DELHI BENCH Ms. received information from investigation wing
Rainee Singh v.Income-tax Officer regarding a bogus claim of long-term capital
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gains.
25 [1995] 83 TAXMAN 194 The Hon'ble High Court held that on going
(MAD.)HIGH COURT OF MADRAS through the materials on record, produced by
Panchugurumurthy v. Commissioner the department, it was clear that sufficient
of Income-tax reasons had been recorded by the competent
authority and the statutory approval had been
obtained from the appropriate authority.
Consequently, the general and vague
allegation of mala fides and want of sufficient
basis for the proposed action under section
148 had no basis in law. Further, as held
earlier, the action initiated under section 148
could not be said to be prima facie illegal to
warrant the interference of the Court.
26 [2016] 72 taxmann.com 302 Where Assessing Officer had reopened
(Gujarat) HIGH COURT OF assessee's assessment for assessment year
GUJARAT Peass Industrial 2012-13 for reasons that information was
Engineers (P.) Ltd. v. Deputy received from Competent Authority, Kolkata
Commissioner of Income-tax that one 'K' was very known entry operator and
instant assessee was also a beneficiary of 'K'
to extent of Rs. 183 lakhs pertaining to
assessment year 2012-13, reasons were
sufficient enough to reopen assessment.
27 [2020] 114 taxmann.com 718 Where evidence found during search in case of
(Gujarat) HIGH COURT OF third party was sufficient to form belief that
GUJARAT Purnima Komalkant LTCG shown by assessee was in nature of
Sharma v. Deputy Commissioner of accommodation entries and income to that
Income-tax, Circle 1 extent had escaped assessment, issue of
notice under section 148 was justified.
28 [2022] 139 taxmann.com 409 Where Assessing Officer had information in
(Gujarat) HIGH COURT OF form of accounts/documents received from
GUJARAT Pushpa Uttamchand Investigation wing that 'U' was a company run,
Mehta v. Income-tax Officer managed and operated by entry providers and
it was a penny stock and assessee had
entered into transaction with 'U' to claim bogus
capital gains, it could not be said that
Assessing Officer, on absolutely vague or
unspecific information initiated proceedings of
reassessment without taking pains to form his
own belief in respect of such materials.
29 [2023] 153 taxmann.com 282 Where Assessing Officer found that assessee
(Kolkata - Trib.) IN THE ITAT was beneficiary of bogus donation and was
KOLKATA BENCH 'A' Tarasafe able to lay its hand on a large number of
International (P.) Ltd. v.Deputy material and had recorded statements of
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Commissioner of Income-tax founder and director of said institution as well
as other persons, who have deposed during
survey and post-survey inquiries regarding
bogus loan given by assessee to said
institution, sufficient material was available with
Assessing Officer for forming an opinion that
income had escaped assessment.
Re-assessment is based not on
borrowed satisfaction
30 [2021] 128 taxmann.com 229 Where AO issued reopening notice on ground
(Gujarat) HIGH COURT OF that an information was received from DIT
GUJARAT (Investigation) that shares sold by assessee
BhanubenMansukhlalKhimashiav.Inc were of penny stock, thus, income on sale of
ome Tax Officer Ward 3(1) said shares could not be allowed as exempt
under section 10(38), since such information
was specific and AO made independent
enquiries and applied his mind and upon due
satisfaction to such information finally formed
a belief that income had escaped assessment,
impugned reopening notice was justified.
31 [2021] 129 taxmann.com 48 Where AO issued reopening notice against
(Gujarat) HIGH COURT OF assessee on ground that an information was
GUJARAT Kaushaliya received from AIMS module that shares sold
SampatlalDudaniv.Income-tax by assessee were of penny stock, since such
Officer, Ward 1(3) information was specific with regard to
transactions of penny stock entered into by
assessee and AO made independent
enquiries and applied his mind to information
and upon due satisfaction formed a belief that
income had escaped assessment, impugned
reopening notice was justified.
32 [2021] 129 taxmann.com 119 Where AO issued a reopening notice against
(Gujarat) HIGH COURT OF assessee on ground that an information was
GUJARAT Nishant Vilaskumar received from AIMS module that shares sold by
Parekh v.Income-tax Officer, Ward assessee were of penny stock, since such
1(3) information with regard to transactions of
penny stock entered into by assessee was
specific and AO had made independent
enquiry and applied his mind to said
information and upon due satisfaction, formed
an opinion that LTCG on sale of penny stock
shares had escaped assessment, impugned
reopening notice was justified.
33 [2022] 138 taxmann.com 50 Where assessee sold shares and claimed
(Gujarat) HIGH COURT OF exemption under section 10(38) and Assessing
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GUJARAT Nishant Vilaskumar Officer issued a reopening notice on ground
Parekh v.Income-tax Officer that an information was received from AIMS
module that shares sold by assessee were of
penny stock, since said information was
specific with regard to transactions of penny
stock entered into by assessee and Assessing
Officer made independent enquiries and
applied his mind to information and upon due
satisfaction and materials gathered during
enquiries, finally formed a belief that income
had escaped assessment, impugned reopening
notice issued against assessee was justified.
34 [2021] 131 taxmann.com 42 Where AO issued a reopening notice on
(Gujarat) HIGH COURT OF ground that an information was received that
GUJARAT Sameer Gulabchand shares sold by assessee were of penny stock,
thus, income on sale of said shares could not
Shah HUF v. Income-tax Officer,
be allowed as exempt under section 10(38),
Ward 1(3) since such information was specific and AO
made independent inquiries and applied his
mind and upon due satisfaction to such
information finally formed a belief that income
had escaped assessment, impugned reopening
notice was justified
35 [2021] 127 taxmann.com 679 Where Assessing Officer issued reopening
(Gujarat) HIGH COURT OF notice against assessee on ground that an
GUJARAT Silverdale Inn (P.) Ltd. v. information was received from NMS (Non filler
Income Tax Officer monitoring system) that assessee had received
cash deposits of certain amount in a bank
account but had not disclosed same in its
return, since assessee had failed to submit
supporting evidences and source of income
with regard to said cash deposits, impugned
reopening notice issued against assessee was
justified.
36 [2021] 129 taxmann.com 68 Where AO issued reopening notice on ground
(Gujarat) HIGH COURT OF that an information was received from AIMS
GUJARAT VilasVrajlal Parekh HUF module that shares sold by assessee were of
v.Income-tax Officer, Ward(1)3 penny stock, since information was specific
with regard to transactions of penny stock
entered into by assessee and AO made
independent enquiries and applied his mind to
such information and upon due satisfaction
formed a belief that income had escaped
assessment, impugned reopening notice was
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justified.
37 [2021] 133 taxmann.com 397 Where Assessing Officer issued a reopening
(Gujarat) HIGH COURT OF notice on ground that an information was
GUJARAT Zaveri & Company (P.) received from Deputy Director (Investigation)
Ltd.v.Deputy Commissioner of that assessee company had entered into
Income-tax transactions of trading in penny stocks of two
companies which were used for providing
accommodation entries in respect of bogus
LTCG and contrived losses, impugned
reopening notice issued on basis of such
specific information outlining systematic
evasion of tax by assessee and fresh material
in hands of Assessing Officer was justified.
38 [1965] 57ITR185 (SC) SUPREME It is held that The date of sale or transfer is the
COURT OF INDIA Alapati date when the sale or transfer takes place,
Venkataramiah v. Commissioner of and for the purpose of determining that date,
Income-tax
entries in the account books are irrelevant.
Further ENTRIES IN ACCOUNT BOOKS
ARE NOT RELEVANT.
39 [2012] 20 taxmann.com 5 (SC) The court held that assessee having not
SUPREME COURT OF INDIA pointed out during assessment proceedings
Honda Siel Power Products Ltd. v. about expenses incurred relatable to tax free
Deputy Commissioner of Income-tax income there was omission and failure on its
part to disclose fully and truly material facts
and hence reopening of assessment was
justified.
40 [2017] 79 taxmann.com 267 (SC),
Larsen & Toubro Ltd. v. State of
Jharkhand.
41 [2022] 140taxmann.com510 (Allahab It is held that notice under section 148 had
ad) HIGH COURT OF ALLAHABAD been issued by Assessing Officer to assessee,
Distributors India (South) after conducting an investigation and going
v. Union of India through income tax return and other related
documents of assessee and after forming
reason to believe that assessee had received
payments under section 194J, but it had not
shown said receipts in his P&L account which
resulted in income having escaped
assessment, reopening of assessment was
justified.
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3.4 We have heard the parties and perused the materials available on
record. It is noted that in the present case, assessee filed its return of
income in response to notice u/s 148 on 20.09.2019 and vide letter dt.
24.09.2019 e-filed on 25.9.2019 (APB 59) sought the copies of the reason
recorded for initiation of proceedings u/s 148. In response, vide letter dt.
30.09.2019 (APB 60-63) AO supplied the copies of reasons recorded for
reopening the case u/s 148. Thereafter vide letter dated 07.10.2019 (APB
64-68), assessee filed objections against the reopening of completed
assessment wherein it was stated that assessee has not taken any
unsecured loans to the tune of Rs. 1,50,32,635/- from the companies
referred to in the reasons nor any share application money was received
from them in the year under appeal. It was further contended that for the
year under reference, assessment was already completed u/s 143(3)
wherein during the course of assessment proceedings, the issue of
unsecured loans was thoroughly examined by AO and necessary
confirmations of the loans taken during the year were filed by the assessee
and none of the companies referred in the reasons is appearing in the list
of parties from whom loans were taken / repaid during the year nor any
confirmation was filed of these parties were filed. Therefore, it was
requested to drop the re-assessment proceedings so initiated based on
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such reasons. Despite the specific objections so filed by the assessee
against the initiation of reassessment proceedings, AO without passing
any speaking order in writing, proceeded to conclude the pending
reassessment proceedings by issuing notices u/s 142(1) wherein certain
details were asked. It was stated that the AO on 20.09.2019 has passed an
order for the disposal of the objections against the reasons recorded for
issue of notice u/s 148 but the fact is that till that date no such objections
were filed and immediately after uploading the same, the AO has
withdrawn the said order (APB 69-73).The narration as made by the AO in
his order dated 20-09-2019 is reproduced as under:-
''This office letter of order disposing of objections to the notice
u/s 148 dated 20-09-2019 is wrongly sent on your portal. So it treated
''Null and Void''
In response to which the assessee had filed requisite details vide letters dt
05.11.2019 and 03.12.2019(APB 76& 83) and further requested for the
disposal of the objections raised against the reasons recorded. In the
replies so filed it was also submitted that the payment was received from
two companies out of the 8 companies referred in the reason recorded, but
the same was against the supply of goods i.e. the sale made to them that
too in the preceding assessment year. It was also stated that the
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assessment for the preceding assessment year was completed u/s 143(3)
wherein the sales made to these companies have been accepted and no
doubts were raised about such sales. Thus, payment received as sales
consideration which arises on account of sale accepted by the revenue
cannot be treated as an accommodation entry. During the year under
appeal, only the pending consideration was received through banking
channels for which the copies of the sales invoices and the ledger accounts
were submitted by the assessee. The AO has taken note of the facts of
sales is proved from the perusal of the query letter dt. 28.11.2019 wherein
the details related to the sales made to these companies were sought.
However, no separate speaking order was passed for the disposal of the
objections raised by the assessee against the reopening of completed
assessment before completing the reassessment proceedings. Further, it is
noted from the record that assessee has not received any such amount as
loan/share capital during the year under consideration from any of such
companies as mentioned in the Reasons for reopening. Basically,
assessee had made certain sales in F.Y. 2011-12 relevant to A.Y. 2012-13
to M/s Raj Rajeshwari Metal and Minerals Pvt. Ltd. and M/s Glorious
Merchandise Pvt. Ltd. of Rs.68,08,020/- and Rs.82,24,615/- respectively. It
is pertinent to note here that assessment for A.Y. 2012-13 stood completed
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u/s 143(3) (APB 127-137), which was also reopened subsequently u/s 147
(Re assessment order dated 30-12-2016 at APB 138-156) and in none of
the proceedings i.e. either in original assessment proceedings or in
reassessment proceedings, sales made to these two companies was
doubted by the department, i.e. sales were accepted as such. It is noted
that during the year under consideration, the assessee has only received
the sum receivable from these two parties against the sales made to them
in immediately preceding year and the submission in this regard was made
before ld. CIT(A) who rejected the plea of assessee by relying upon certain
judicial pronouncements and held at page 29 that "As regards not dealing
the objection against reassessment proceedings is concerned, the status is
not clear. There is no date mentioned on the objection letter (PB Page 64)
and there is no acknowledgement stamp of office of the AO on such letter.
The filing status is not ascertainable. Further, if the same was filed, it is not
the case that the appellant had requested the ld. AO for the copy of the
order disposing objections and in reply it was communicated that such
order was not passed. It cannot be conclusively said from the documents
placed on record that the objections were not disposed off by the ld. AO.
The powers of the CIT Appeal are coterminous with that of AO and the
objections have been dealt with in this order as well." With regards to
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above observations of ld. CIT(A), it is mentioned by the assessee that
though the letter raising objections was undated, however the same was
furnished Online (copy of acknowledgement placed on record) and
therefore filing status thereof cannot be doubted. Also as stated in above
that AO had mistakenly uploaded one order disposing objections and
withdrawn the same soon thereafter no further order was passed, and
therefore it was clear that objections have not been disposed off thereafter.
Further, it is noted that Ld. CIT(A) has further stated that powers of CIT
appeal are coterminous with that of AO and the objections have been dealt
with in appellate order as well. The ld. AR submitted that the assessing
officer was dutybound to dispose off objections by passing separate
speaking order whether assessee makes request for the same or not. At
this juncture, we take into consideration the decision of Hon'ble Supreme
Court in the case of GKN Driveshafts (India) Ltd. reported in 259 ITR
Page 19, wherein it has been heldthat,
".....on receipt of the reasons, the noticee is entitled to file
objections to issuance of notice and the Assessing Officer is
bound to dispose of the same by passing a speaking
order....."
However, as noted above, in the present case, no such speaking order was
ever passed despite the fact that assessee has filed objections in writing,
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which fact is proved beyond doubt and in various subsequent proceedings
the fact of pendency of disposal of such objections was intimated to the
AO which was evident from the subsequent correspondence filed (APB 76-
126). It is noted that the assessee duly complied with the procedure laid
down by the Hon'ble Apex court in the case of GKN Driveshafts (Supra) by
filing the return of income in response to notice u/s 148 and thereafter upon
receiving the copies of the reasons recorded, filed objections against the
initiation of reassessment proceedings (APB 64-68). Thus it was the duty
of the AO that before proceeding further in the matter, objections so filed
should have been disposed-off first which AOhas failed to do. Moreover,
ld. CIT(A) tried to justify such mistake of AO stating that CIT (Appeals) has
power as coterminous to that of AO and objections have been dealt with in
appellate order. Courts have even held that disposing off objections in
assessment order itself would not absolveAO from passing separate
speaking order. Thus, disposal of objections by ld.CIT(A) in the appellate
order was not sufficient. Thus, due process of law has not been followed in
the present caseand the re-opening the assessment proceedings u/s 148
of the Income Tax Act, 1961, deserves to be held illegal and consequent
reassessment order passed deserves to be held void ab-initio. We also
take into consideration the judgement of Hon'ble Rajasthan High Court in
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the case of M/s K.C. Mercantile Ltd. (Presently Known As Genus
Innovation Limited) vs. Deputy Commissioner of Income Tax Circle-2,
Jaipur (Case Law Paper Book 01-31)in ITA No. 292/2016, wherein the
high court held that:
"7. We have heard the counsel for the parties.
8. Before proceeding with the matter, it is not out of place to mention that the
law declared by the Supreme Court in GKN Driveshafts (supra) clearly held
that the preliminary objection is to be decided as the first, it cannot be
decided subsequently. The argument which has been canvassed by the
assessee is required to be considered very seriously more particularly in view
of the observations made by the Supreme Court in the case of KSS Petron
Private Ltd (supra) which is followed in Hotel Blue Moon (supra), the law
declared by the Supreme Court is taken in true spirit whether it will open a
second inning in his own. Section 153(3) is to be read very cautiously as 153
powers are given to the Department, the Court has to look into whether the
law declared by the Supreme Court is given away or protected. In the present
case, as the Assessing Officer has clearly ignored the law declared by the
Supreme Court, in that view of the matter, the issues which are raised in the
matter, the Tribunal ought not to have remitted back for reassessment since
period of limitation has already expired as the authority will get extended
time of limitation beyond 9 months which is not the object of the Income Tax
Act.
9. In that view of the matter, on issue No. 1 and 2, the order of reassessment
passed by the Tribunal is declared null and void. The questions are answered
in favour of assessee and against the Department.
10. The appeal of the assessee is allowed."
We also take into consideration the decision of ITAT Jaipur Bench in the
case of Girraj Prasad Gilara HUF vs Income Tax Officer, Ward 6(5),
Jaipur in ITA No. 354/JP/2019wherein it is held as under:-
"Thus the requirement of disposing off the objections against the notice issued
under section 148 by a separate and speaking order is a mandatory requirement in
view of the judgment of the Hon'ble Supreme Court in case of GKN Driveshafts
(India) Ltd. vs. ITO (supra), the failure of the AO to dispose off the objections
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renders the reassessment order not sustainable in law. In the case in hand there is
complete failure on the part of the AO to dispose off the objections against notice
u/s 148 of the Act and not merely a procedural irregularity of separate and
speaking order. Accordingly, in the facts and circumstances of the case and
specifically involving the issue of addition of Rs. 2,71,317/-, we find that in this case
the AO does not deserve a second inning. Accordingly, without remitting the matter
to the record of the AO, the reassessment order passed by the AO is set aside being
invalid."
It is felt that order passed by AO without disposing objections raised by
assessee is contrary to the decision of Hon'ble Supreme Court and order
so passed deserves to be quashed. With regards to reopening of
assessment, which was already completed u/s 143(3) of the Income tax
Act, it is noted that assessment u/s 143(3) was completed after due
verification of complete details filed by the assessee, including related to
the unsecured loans taken/ repaid during the year under appeal and
therefore reopening of assessment beyond 4 years was not in accordance
with law more particularly when AO could not establish any fault on the
part of assessee in disclosing fully and truly all material facts
necessary for assessment. The relevant extracts of section 147 are
reproduced hereunder for ready reference:
"Income escaping assessment.
147. If the [Assessing] Officer [has reason to believe] that any income chargeable
to tax has escaped assessment for any assessment year, he may, subject to the
provisions of sections 148 to 153, assess or reassesssuch income and also any
other income chargeable to tax which has escaped assessment and which comes
to his notice subsequently in the course of the proceedings65 under this section, or
recompute the loss or the depreciation allowance or any other allowance, as the
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case may be, for the assessment year concerned (hereafter in this section and
in sections 148 to 153 referred to as the relevant assessment year) :
Provided that where an assessment under sub-section (3) of section 143 or this
section has been made for the relevant assessment year, no action shall be taken
under this section after the expiry of four years from the end of the relevant
assessment year, unless any income chargeable to tax has escaped assessment
for such assessment year by reason of the failure on the part of the assessee to
make a return under section 139 or in response to a notice issued under sub-
section (1) of section 142 or section 148 or to disclose fully and truly all
material factsnecessary for his assessment, for that assessment year:"
Hence, from perusal of provisions as contained in proviso to section 147, it is
apparent that in normal circumstances, an assessment already completed
u/s 143(3) can be reopened within 4 years only and reopening beyond 4
years is permissible only if there is failure on the part of assessee in
disclosing fully and truly all the material facts necessary for
assessment. The Bench noted that in the instant case also, assessment
was already completed u/s 143(3) vide order dated 12.03.2016 (APB 55-
58), thus the re-opening proceedings initiated vide notice dated 18.03.2019
is governed by the first proviso to sec 147 of the I T Act, 1961, whereby no
action could be taken u/s 147 of the I T Act after expiry of four years from
the end of relevant assessment year, unless it is established that an
income chargeable to tax has escaped assessment by the reason of failure
on the part of the assessee to truly and fully disclose all material facts
required for making assessment. We also noticed that in the instant case,
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AO at para 8 of Reasons recorded (APB 60-63), i.e."Applicability of the
provisions of section 147/151 to the facts of the case" has stated that
"Since 4 years from the end of the relevant assessment year have expired
in this case, the requirement to initiate proceedings u/s 147 of the Act are
reason to believe that income for the year under consideration has escaped
from assessment because of failure on the part of the assessee to disclose
fully and truly all material facts necessary for the regular assessment for
the year under consideration"However, going further,AO has simply
mentioned that"I have carefully considered the assessment records
containing the submissions made by the assessee in response to various
notices issued during the original assessment proceedings u/s 143(3) of
the I.T.Act, and it is found that the assessee has not disclosed fully and
truly all the material facts necessary for regular assessment for the year
under consideration."In fact, ld. CIT(A) has also affirmed such finding of AO
without bringing on record or pin pointing any specific material fact which
was not disclosed truly and fully by the assessee and it was necessary for
completion of assessment. It is noted that on the other hand, assessee had
filed confirmations for all the unsecured loans taken / repaid during the year
under consideration in the course of assessment proceedings, and none of
the company appearing in the reasons recorded from whom it is alleged
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that assessee has taken accommodation entry of unsecured loans, is in the
list of parties from whom loans were taken, as the assessee had not taken
any unsecured loans from any of those entities. Thus there was no failure
on the part of the assessee in truly and fully disclosing any material which
was now in possession of AO, having bearing on the assessment of
income of the assessee. Hence such re-opening of a completed
assessment, beyond a period of four years from the relevant assessment
year, without pointing any default of the assessee to disclose all necessary
facts, is not justified and the proceedings thus deserve to be quashed. This
contention of the assessee is supported by the decision of the Hon'ble
Chennai High Court in the case of Fenner (India) Ltd. Vs. CIT (241 ITR
672 (Mad) wherein ithas been held as under:
"In cases where the initiation of proceedings is beyond the period of four
years from the end of the assessment year, the Assessing Officer must
necessarily record not only his reasonable belief that income has
escaped assessment but also the default of failure committed by the assessee.
Failure to do so would vitiate notice and the entire proceedings".
In the case of DCIT v. Hyundai Motor India Ltd. 148 ITD 333 (Chen) and
CIT Vs. Cholamandalam Investment & Finance Company Ltd., 309 ITR
110 (Mad) by placing reliance on the decision of the Hon'ble Apex Court in
the case of CIT Vs. Kelvinator India Ltd [320 ITR 561 SC] it is held that
since during the original assessment proceedings all the requisite details
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were filed by the assessee and after considering such details, the claims
made by the assessee were duly accepted. The issues which have already
been considered in the original assessment cannot be re-appreciated in
reassessment proceedings under the garb of income escaping
assessment. If the Assessing Officer has not given any finding after
considering the evidence on record, it cannot be said that the income had
escaped assessment on account of concealment of assessee.It is further
noted that during the course of assessment proceedings u/s 143(3), after
proper verification of the books of account and other records the
assessment was completed after making disallowance u/s 14A and any
further action u/s 148 alleging Sales of preceding year as accommodation
entry is mere change of opinion which cannot be permitted under the eyes
of law. In other words, no new material was brought on record for
reopening the case rather merely relying upon some information from
Investigation Wing, Kolkata that too on the basis of search conducted in
case of a third party reopening of completed assessment was made. Thus,
reopening amounts to mere change of opinion. The Jaipur bench of ITAT
under the similar circumstances in following cases has quashed the notice
issued u/s 148 of the Act where purchases have been considered and
trading additions were made in original assessment proceedings
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1. M/s Dwarka Gems Ltd. in ITA No. 71/JP/2017 vide orders dt.
27/3/2018, copy at Case Law Paper Book pages 32-39.
2. Nirmala Agarwal Vs. ACIT in ITA Nos. 995 & 996/JP/2016 vide orders dt.
11.04.2018 copy at Case Law Paper Book pages 40-53
Further, it is noted that assessee has challenged the reopening of
assessment without recording any subjective belief as to escapement of
income and merely on suspicion formed on the basis ofso-called
information received from some other officials. It is noted that that the issue
ought to have been considered objectively and not on the so-called
information received from some other official, therefore, the action of the
AO in reopening the completed assessment is without independent
application of mind and deserves to be held bad in law. From the perusal of
the reassessment order , we found that no efforts have been made by
lower authorities AO/CIT(A) even to link the reasons recorded with the
material available on record where the satisfaction was recorded that the
assessee had introduced its unaccounted cash in the bank account of
various dummy/ paper companies and gradually brought back into its
books of accounts in the form of RTGS / transfer through circulatory
fashion without paying any tax. It is noted that allegation of bogus
accommodation loans being taken, as made in reasons recorded was
changed to bogus share application money without appreciating the fact
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that no fresh share application money was received during the year under
appeal. All this shows the casual approach taken by the AO in completing
the reassessment proceedings without even appreciating the belief of
escapement of income recorded at the time of reopening the
assessment. We take into considerationthe following case laws:
(i) Ram Singh 306 ITR 343 (Rajasthan)
Reassessment - Income escaping assessment - Income believed to have
escaped investment explained by assessee - Tribunal rightly holding
reassessment proceedings initiated on non-existing facts and invalid - Income Tax
Act, 1961, ss. 147, 148.
Hon'ble Court in this case has inter alia held that:
29. To clarify it further, or to put it in other words, in our opinion, if in the course of
proceedings under section 147, the AO were to come to conclusion, that any
income chargeable to tax, which, according to his "reason to believe", had
escaped assessment for any assessment year, did not escape assessment, then,
the mere fact, that the AO entertained a reason to believe, albeit even a genuine
reason to believe, would not continue to vest him with the jurisdiction, to subject to
tax, any other income, chargeable to tax, which the AO may find to have escaped
assessment, and which may come to his notice subsequently, in the course of
proceedings under section 147."
By following the aforesaid judgment, hon'bejurisdictional high in the case of MS
Prime Chem Oil Ltd. Vs. ACIT in DBITA No. 220/2017 vide order dt. 17.4.2018 has
also expressed the same view.
(ii) 63 DTR 212 - CIT vs. AdhunikNiryatIspat Ltd. (Delhi) [DOD:
28.07.2011]
Reassessment - Scope - Issue not subject-matter of reasons to believe -
Assessment reopened on the ground that the assessee had accepted
accommodation entries from some parties in the garb of share capital - However
during the reassessment proceedings, the AO also made certain additions of the
credits received from some other parties though on that basis the assessment was
not reopened - Reasons which persuaded the AO to reopen the assessment
proceedings ands on the basis of which additions were made were not found valid
and those additions were deleted by the Tribunal - Since the grounds for
reopening the assessment do not exist any longer and no additions were ultimately
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made on that account, the additions in respect of other items which were not part
of "reasons to believe" cannot be made.
It is also noted that the validity of initiation of reassessment proceedings
has to be judged with regard to the material available with the AO and that
too by framing the opinion strictly based on the documents and information
in possession, that certain income has escaped assessment and not in a
mechanical manner, which has been done in the case in hand. There is no
specific enquiry from the parties who are alleged as bogus entry providers
and who are further alleged to have given bogus loan through these
intermediary shell companies. Thus, re-opening of the case based on the
borrowed satisfaction on the information provided by some other official
without carrying independent verification of the information with reference
to return of income and financial affairs of the assessee and without
recording her own independent satisfaction on the basis of such
independent verification deserves to be held illegal.In this regard we place
reliance onfollowing judgements:
(i) CIT Vs. Atul Jain (Delhi) reported in 299 ITR 383 where in Hon'ble High Court
has dismissed the appeal of Revenue by stating below reasons:-
Lookedat in the light of the decisions placed before us and the law laid down
therein, it is necessary to appreciate the information available with the Assessing
Officer in the present case. The only information is that the assessed had taken a
bogus entry of capital gains by paying cash along with some premium for taking a
cheque of that amount. The information does not indicate the source of the capital
gains (which in this case are shares). We do not know which shares have been
transacted and with whom has the transaction taken place. There are absolutely
no details available and the information supplied is extremely scanty and vague. In
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so far as the basis for the reasons is concerned, even this is absent. The
Assessing Officer did not verify the correctness of the information received by him
but merely accepted the truth of the vague information in a mechanical manner.
The Assessing Officer has not even recorded his satisfaction about the
correctness or otherwise of the information or his satisfaction that a case has been
made out for issuing a notice under Section 148 of the Act. Read in this light, what
has been recorded by the Assessing Officer as his "reasons to believe" is nothing
more than a report given by him to the Commissioner of Income Tax. As held by
the Supreme Court in Chhugamal Rajpal, the submission of a report is not the
same as recording of reasons to believe for issuing a notice. The Assessing
Officer has clearly substituted form for substance and, therefore, the action of the
Respondent falls foul of the law laid down by the Supreme Court in Chhugamal
Rajpal which is clearly applicable to the facts of these appeals.
(ii) Seth Brothers Vs. CIT169 CTR 519(Guj) wherein the Hon'ble High Court has
laid down following principles for the re-opening of the assessment u/s 148 of the
Income Tax Act, 1961: (Reproduced in 28 TW 57,79)
"11 (a) There must be material for belief
(b) Circumstances must exist and cannot be deemed to exist for arriving
at an opinion.
(c) Reason to believe must be honest and not based on suspicion,
gossip, rumour or conjuncture.
(d) Reasons referred must disclose the process of reasoning by which he
holds 'reasons to believe' and change of opinion does not confer jurisdiction to
reassess.
(e) There must be nexus between material and belief.
(f) The reasons referred must show application of mind by the assessing
officer. The validity of initiation of reassessment proceedings has to be judged
with regard to the material available with the officer at the point of time of issue
of notice u/s 148 and cannot be sought to be substantiated by reference to
material that may have come to light subsequently in the course of
reassessment proceedings.
In the light of what is stated above, we hold that there was no material with the
AO for having reasons to believe that the income as chargeable to tax, has
escaped assessment. We are unable to hold that the jurisdiction assumed u/s
147/148 was legal and valid."
We also take into consideration the decision in case of PCIT vs.
Meenakshi Overseas (P.) Ltd. [2017] 82 taxmann.com 300
(Delhi)wherein it was held by the Hon'ble Delhi High court that where
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reassessment was resorted to on basis of information from
DIT(Investigation) that assessee had received accommodation entry but
there was no independent application of mind by Assessing Officer to
tangible material and reasons failed to demonstrate link between tangible
material and formation of reason to believe that income had escaped
assessment, reassessment was not justified. In case of Haryana Acrylic
Manufacturing Co. v. CIT [2008] 175 Taxman 262 (Delhi) it was held by the
Hon'ble Delhi High Court that notice under section 148, giving reason that it
had come to his notice that assessee had taken accommodation entries
from 'H' during relevant year when assessee, in course of original
assessment proceedings, had supplied all relevant details; in assessment
order which were verified and moreover, in reasons supplied to assessee
there was no allegation that it had failed to disclose fully and truly all
material facts necessary for assessment and because of its failure there
had been an escapement of income chargeable to tax, reopening of
assessment after expiry of four years from end of relevant assessment year
was without jurisdiction. Hence in view of the facts and circumstances and
the case laws discussed hereinabove, it is felt that since there was no
independent application of mind neither by AO while initiation of
reassessment proceedings by issue of notice u/s 148 nor by ld. CIT(A) - 4,
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Jaipur while deciding the issue under consideration. They simply
proceeded on borrowed satisfaction reached by some other officials and
even without making any enquiry before reaching to the conclusion of
escapement of income, which is apparent from the perusal of the reasons
where no specific transaction with any of the company alleged as paper
companies is specifically mentioned and on general observations that no
such transaction was shown by the assessee and no tax was paid on such
transaction, the case was reopened. Hence, in this view of the matter, we
do not concur with the findings of the ld CIT(A) and this issue raised by the
ld. AR of the assessee is allowed.
4.1 Apropos Ground No. 3 to 3.2 of the assessee, wherein it is noticed
that the ld. CIT(A) has dismissed the grounds of the assessee by observing
as under:-
''5.2 I have considered the facts of the case and written submissions of the
appellant as against the observations/findings of the AO in the assessment order
for the year under consideration. The contentions/submissions of the appellant are
being discussed and decided as under:-
In these grounds, the appellant has objected to the addition of Rs. 1,50,32.635/-so
made by the Id. AO by considering the transaction from impugned two parties as
unexplained. During the assessment proceedings the learned AO provided
opportunity to the appellant to prove the identity and genuineness and
creditworthiness of two parties namely M/s Raj Rajeshwari Metals and Minerals
Traders Pvt. Ltd. and M/s Glorious Merchandise Pvt. Ltd. with respect to the credit
entries received from these two parties. The appellant explained that there is no
loan taken from these two parties but the payments were received as recovery of
outstanding dues on account of sale made to these two parties in preceding years.
The Id. AO got the enquiries conducted through Investigation Wing. Kolkata and
Inspector deputed for field enquiry reported that at the given address there was
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neither sign board of Mis Raj Rajeshwari Metals and Minerals Traders Pvt. Ltd. nor
any name plate nor any letter box of this company. The building is very old and he
met with the other people who told that they have never heard the name of
aforesaid company. Thus, it is clear that whereabouts and existence of this
company is clearly not proved and rather fully incorrect and non-existent. The Id.
AO has held that the credit received from these two companies as unexplained.
It was submitted by the Id. AR that Id. AO has made addition by considering the
amount received from impugned two parties namely M/s Raj Rajeshwari Metals
and Minerals Traders Pvt. Ltd. and M/s Glorious Mercandise Pvt. Ltd. as share
application money which is totally contrary to the fact on record. In fact, during the
year under consideration the appellant has not received any share capital or share
application money not only from these two companies but not from any of the
companies. Thus addition per-se being on wrong facts deserves to be out-rightly
deleted. The Id. AR has further explained that appellant had made sales to these
two parties in the preceding year and these parties were appearing as debtors at
the end of FY 2011-12. In FY 2012-13 relevant to AY 2013-14, the appellant has
merely received the outstanding amount from these two companies through
banking channel. It was submitted that Id. AO is not justified in making the addition
in AY 2013-14 when the sales have been duly declared and accepted in the
preceding year, which tantamounts to double taxation on same income. Sales
made in the preceding year to these two companies are supported by the sales
invoice containing complete name and address at which goods were delivered,
and details of transporter, truck number etc. mentioned in the invoice itself. As
regards Inspector's report is concerned wherein the Inspector stated to have
visited, the office address of the one of the company, it was submitted that the
matter is related to FY 2011-12 and 2012-13 and it may be possible that after such
a long gap, the office address have changed. Moreover, without prejudice to
above, it was also submitted that in any case, the goods were not supplied at the
address at which the Inspector made enquiry but it was supplied at the different
address namely "Commerce House", 2-A G.C. Avenue, 8th Floor, Calcutta-700013
as mentioned in the sales invoice itself and no any enquiry was made at this
address.
Decision:-
It is seen that as per the report of ITO (Inv.), Unit-1 and AIU, Kolkata the impugned
two parties were part of the parties providing accommodation entries. It is further
noticed that the appellant has done transaction with these two parties and has
received payment during the year under consideration, though these payments
were stated to be recovery of outstanding dues of sales made in the preceding
years. However it is noticed that appellant was not able to support his claim of sale
with clinching evidence of physical transportation of the goods. The appellant has
claimed that truck details etc. are mentioned on invoices however such details are
not mentioned. Further there are no normal course stampings on invoices. And
also there are no acknowledgements of material having been received by the
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buyers. The financial data/ITR of these companies as analysed by the Id. AD does
not show the credit worthiness. None of the companies responded in response to
the notices u/s 133(6) of the Act issued by the Id. AO. Further, in the field inquiries
during the assessment proceedings the company was found to be not existing at
the address given as per the field enquiry conducted by the Inspector. In this
regard opportunity was provided to the appellant, however the appellant did not
produce the parties and also did not produce the new address etc. in case there
was any change of address. These parties are the witnesses of the appellant and
onus in this regard is on the appellant. The argument of the appellant that the
companies might have changed the address is a mere self-serving and convenient
excuse and is not legally acceptable. as the onus is on the appellant in the peculiar
facts of the case. Further the assesses are required to maintain the complete
books of accounts and records till the time the assessment can be reopened. The
argument of the assessee that some invoices could be traced out after much effort
is also a mere self-serving statement and excuse which is not legally acceptable,
as the onus is on the appellant.
In the case of Bharati (P.) Ltd. v. CIT [1978] 111 ITR 951 (Hon'ble Calcutta High
Court) it was held that production of even confirmatory letters from the lender
parties before the Income-tax Officer in support of the loan alone would not suffice
the loan as genuine.
In the case of CIT v. Precision Finance (P.) Ltd. 11994] 208 ITR 465/11995] 82
Taxman 31 (Hon'ble Calcutta High Court) it was held that "It was not for the
Income-tax Officer to find out by making investigation from the bank accounts
unless the assessee proves the identity of the creditors and their creditworthiness.
Mere payment by account payee cheque is not sacrosanct nor can it make a non-
genuine transaction genuine."
In the case of CIT v. United Commercial & Industrial Co. (P) Ltd. [1991] 1871TR
596/56 Taxman 304 (Hon'ble Calcutta High Court) it was held that the primary
onus lies on the assessee to prove the nature and source of credits in its account.
It is necessary for the assessee to prove prima facie the identity of his creditors,
the capacity of such creditors to advance the money and lastly the genuineness of
the transactions. Only when these things are proved by the assessee prima facie
and only after the assessee has adduced evidence to establish the aforesaid facts
does the onus shift on to the Department. It is not enough to establish the identity
of the creditors. Mere production of the confirmation letters before the Income-tax
Officer would not by itself prove that the loans have been obtained from those loan
creditors or that they have creditworthiness.
The appellant has not been able to prove the sales to these parties. For the same
the appellant has not producethe verifiable documents like the truck bilti, challan,
weighment slips. State Govt. taxes slips on crossing border, etc. It is a known fact
that mal practice of accommodation billing exists whereby in several cases bogus
billing is done by the parties. The mere fact that invoice has been raised on
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payment is received through banking channel does not make the transaction to be
genuine and does not prove the creditworthiness and identity of the parties.
In the case of Commissioner of Income Tax, Jaipur-ll v. Bright Future Gems [2017]
88 taxmann.com 476 (Rajasthan) [HON'BLE HIGH COURT OF RAJASTHAN]
entire bogus purchases were disallowed and upheld. The reasons like non-
availability of the said two suppliers at the given addresses, non production of two
suppliers by the assessee in spite of various opportunities granted. Assessee has
failed to produce the owners of the two concerns. Hon'ble High Court also
observed that merely voucher of the import export challans or chllans of the
custom clearance will not prove physical delivery of the material (precious stones).
There is nothing on record to certify the stones which were verified by any of the
value. It was held that it is all paper transactions for the purpose of taking benefit
of the export and tax benefits.
The Hon'ble High Court observed as under-
"3. The brief facts of the case are that the assessee firm is engaged in the
business of precious and semi preciousstones and it is a 100% exporter. During
the course of assessment proceedings the AO. has noticed that the assessee was
not maintaining quantitative details of day to day purchases and manufacturing of
the items. Further on verification it was also noticed by him that the purchases was
made from M/s. Vinayak Overseas and M/s JVH Gems. The purchases from
above parties were established to be bogus after making in depth enquiries by the
AO. During the course of assessment the AO has recorded Statements of
concerned parties were established to be bogus after making in depth enquiries by
the AO. During the course of assessment proceeding it has been gathered that the
assessee has failed to produce the owners of the two concerns. The reasons like
non- availability of the said two suppliers at the given addresses, non production of
two suppliers by the assessee in spite of various opportunities granted, statement
of Sh. Mohan Prakash Sharma Power of Attorney holder of M/s Vinayak Overseas
stating of giving accommodation entireties only and nature and volume of
transaction appearing in their bank accounts leads the AOto the conclusion that
the purchases were bogus.
......
......
7. Before considering the matter, it will not be out of place to mention here that
question which is posed for our consideration is whether the purchases which has
been done from Vinayak Overseas is genuine or not. The Assessing Officer while
observing at page 12 referred hereinabove and which was already considered by
the CIT (A) has confirmed the finding and Vinayak overseas has specifically
contended that they were not transfer by Vinayak overseas and they were
absconding. The Tribunal only on the statement of M.P. Sharma who was power of
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attorney holder of Vinayak overseas has given the finding. In our view, the finding
is perverse. The view taken by the Tribunal is required to be reversed.
8. Apart from that merely voucher of the import export chanals or chanals of the
custom clearance will not prove physical delivery of the material (precious stones).
There is nothing on record to certify the stones which were verified by any of the
value. In our view it is all paper transactions for the purpose of taking benefit of the
export and tax benefits.
9. In that view of the matter, we are of the opinion that the view taken by the CIT
(A) is required to be upheld and view taken by the Tribunal is required to be
reversed. In that view of the matter, we are of the opinion that it is a bogus
purchase and in our opinion, the finding which has been arrived by the Tribunal is
not in consonance with the provisions of law, therefore, it is required to be
reversed"
In the case of Indian Woolen Carpet Factory V/s ITAT and Others (2002) 260 ITR
658 (Raj)/178 CTR 4420 (Raj) (https://indiankanoon.org/doc/942953/) entire bogus
purchases were disallowed and upheld. It is held that onus was upon the assessee
to prove genuineness of purchases. It is observed in the order as under:-
"3. The Assessing Officer was of the view that the purchases are not genuine and
he added Rs. 2,75,000 in the assessment order dated March 6, 1986. Summons
were issued to those parties on the given address. One or two parties appeared
and considering their submissions, the addition was reduced to Rs. 2,25,000.
Again the assessee went in appeal before the Commissioner of Income-tax
(Appeals).
........
........
6. Considering the report of the Inspector of Income-tax and submissions of some
parties, who are available, from whom wool was purchased, third time addition
have been reduced to Rs. 1,12,500.
7 In appeal before the Tribunal, the Tribunal found that many opportunities were
given to the assessee, twice the assessment order was set aside, thereafter,
assessments were made one after the other, but in spite of that the assessee
failed to prove the genuineness of the transactions or the credits. Therefore, the
Tribunal confirmed the addition invoking the provisions of Section 68 holding that
once the credit entry has been made in the books of account in the names of
various parties and if the genuineness of these cash credits could not be proved,
the Assessing Officer was justified in making the addition of Rs. 1,12,500.
9. We can understand that they will not be available at one point of time. When the
parties from whom the wool was purchased are not nomadics, it cannot be said
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that they have no permanent address and if they are the genuine parties, they
should have some address. No person in the name of such party was found
particularly when the summons were issued under Section 131 to those parties. If
the transactions are genuine and if the parties have migrated somewhere else,
their latest address should have been supplied and the burden is on the assessee
to prove the genuineness of the transaction, when the assessee claimed that the
purchases are genuine."
Though the Id. AO has apparently due to typographical error used the term share
application money/unsecured loan, but the fact remains that the amount received
is credit which is treated as unexplained. The genuine existence of these parties
itself is not proved and further the documentation is not shown regarding the sales
and the sales by the appellant and purchased by these parties is not proved which
is claimed to have taken place in the earlier year. Such sale is found to be sham
and thus books of accounts are not reliable and liable to be rejected for the earlier
year in which such sales are reflected and such sale amount will get reduced from
the sales leading to increase in closing stock. Further, without prejudice, the credit
has been received in the year under appeal and the identity and genuineness and
creditworthiness are not proved irrespective of the claim of the appellant that the
money has been received with respect to the sales made in earlier year, these
factors are not proved. The argument of the appellant that the sales were accepted
in the immediately preceding year assessment is not borne out of the record that
whether the sales were examined in the immediately preceding year. Merely
because the fact that in case the assessment has taken place in the earlier year in
which such transactions have been recorded in the books of account does not
render these transactions automatically to be explained as during the assessment
only limited issues can be examined and the appellant has not shown with the
documents that the sales were examined in the earlier year and that notices under
section 133(6) of the Act was issued to these parties. The present assessment
under appeal has been done based on the extra evidences gathered during the
assessment proceedings
Where the assessee has failed to prove satisfactorily the source and nature of a
credit entry in his books, and it is held that the relevant amount is the income of
the assesse, it is not necessary for the department to locate its exact source (CIT
v. M.Ganapathi Mudaliar [1964] 53 ITR 623 (SC)/A. Govindarajulu Mudaliar v. CIT
[1958] 34 ITR 807 (SC)).
In the case of Roshan Di Hatti v. Commissioner of Income-tax [1977] 107 ITR 938
(SC) (08-03-1977] it is held by the Hon'ble Supreme Court as under-
"Now, the law is well settled that the onus of proving the source of a sum of money
found to have been received by an assessee is on him. If he disputes the liability
for tax, it is for him to show either that the receipt was not income or that if it was, it
was exempt from taxation under the provisions of the Act. In the absence of such
proof, the revenue is entitled to treat it as taxable income. This was laid down as
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far back as 1958 when this court pointed out in A. Govindarajulu Mudaliar v
Commisioner of Income-tax [1958] 34 ITR 807, 810 (SC) that
"There is ample authority for the position that where an assessee fails to prove
satisfactorily the source and nature of certain amount of cash received during the
accounting year, the Income-tax Officer is entitled to draw the inference that the
receipts are of an assessable nature."
In the case of Kale Khan Mohammad Hanif v. Commissioner of Income-tax [1963]
50 ITR 1 (SC)(08-02-1963] it is held by the Hon'ble Supreme Court as under-
"It seems to us that the answer to this question must be in the affirmative and that
is how it was answered by the High Court. It is well established that the onus of
proving the source of a sum of money found to have been received by the
assessee is on him. If he disputes liability for tax, it is for him to show either that
the receipt was not income or that if it was, it was exempt from taxation under the
provisions of the Act. In the absence of such proof, the Income-tax Officer is
entitled to treat it as taxable income: see A. Govindarajulu Mudaliar v.
Commissioner of Income-tax [1958] 34 ITR 807 (SC)
Referring to the above judgements of Hon'ble Supreme Court, it is held by the
Hon'ble ITAT in the case of Navin Shantilal Mehta v. Income-tax Officer, Ward-32
(2) (4), Mumbai [2018] 90 taxmann.com 16 (Mumbai - Trib.) as under-
"3.2 As per section 68 of the Act, onus is upon the assessee to discharge the
burden so cast upon. First burden is upon the assessee to satisfactorily explain the
credit entry contained in his books of accounts. The burden has to be discharged
with positive material (Oceanic Products Exporting Co. v. CIT [2000] 241 ITR 497
(Ker.). The legislature had laid down that in the absence of satisfactory
explanation, the unexplained cash credit may be charged u/s 68 of the Act. Our
view is fortified by the ratio laid down in Hon'ble Apex Court in CIT v. P.
Mohankala [2007] 291 ITR 278/161 Taxman 169, A close reading of section 68
and 69 of the Act makes it clear that in the case of section 68, there should be
credit entry in the books of account whereas in the case of 69 there may not be an
entry in such books of account. The law is wellsettled, the onus of proving the
source of a sum, found to be received/transacted by the assessee, is on him and
where it is not satisfactorily explained, it is open to the Revenue to hold that it is
income of the assessee and no further burden lies on the Revenue to show that
income is from any other particular source. Where the assessee failed to prove
satisfactorily the source and nature of such credit, the Revenue is free to make the
addition. The principle laid down in CIT v. M. Ganpati Mudaliar [1964] 53 ITR 623
(SC)A. Govinda Rajulu Mudaliar v. CIT [1958] 34 ITR 807 (SC) and also CIT v.
Durga Prasad More [1969] 72 ITR 807 (SC) are the landmark decisions. The ratio
laid down therein are that if the explanation of the assessee is unsatisfactory, the
amount can be treated as income of the assessee. The ratio laid down in CIT v.
Daulat Ram Rawatmal [1973] 87 ITR 349 (SC) further throws light on the issue. In
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the case of a cash entry, it is necessary for the assessee to prove not only the
identity of the creditor but also the capacity of the creditor and genuineness of the
transactions. The onus lies on the assessee, under the facts available on record. A
harmonious construction of section 106 of the evidence Act and section 68 of the
Income Tax Act will be that apart from establishing the identity of the creditor, the
assessee must establish the genuineness of the transaction as well as the
creditworthiness of the creditors. In CIT v. Korlay Trading Co. Ltd. [1998] 232 ITR
820 (Cal.), it was held that mere mention of file number of creditor will not suffice
and each entry has to be explained separately by the assesseeCIT v. R.S.
Rathaore [1995] 212 ITR 390/86 Taxman 20 (Raj.). The Hon'ble Guwahati High
Court in Nemi Chandra Kothari v. CIT [2003] 264 ITR 254/[2004] 136 Taxman 213
held that transaction by cheques may not be always sacrosanct,
(Emphasis Supplied)
The appellant has not discharged the primary onus cast on it as even the complete
documentation itself has not been produced before the learned AO. The nature of
credit itself is not proved by the appellant. Further, these parties are found to be
non- existent and bogus in different enquiries at different times. During field
enquiries it was found that for several years in past also no such company was
known to be existing at given address. Considering these facts and the legal
jurisprudence, the explanation of appellant of payment received as recovery from
outstanding dues of sales is not acceptable and is rejected and the same is
unexplained credit in terms of section 68 of the Act. The law is now settled by the
judgment of Hon'ble Supreme Court of India in the case of PCIT Vs. NRA Iron &
Steel Pvt. Ltd. SLP (Civil) No. 29855 of 2018) decided on 05.03.2019 wherein it
was held that the taxpayer failed to establish the credit worthiness of investor
companies and it was further held that the taxpayer failed to establish the
investor's identity, as a few investors were found to be non-existent. Therefore,
since the taxpayer failed to discharge the onus required under section 68 of the
Act, the assessing authority's action of adding the receipt of share capital/ share
premium as income in the hands of the taxpayer as unexplained credits u/s 68 was
upheld.
Thereby addition of Rs. 1,50,32,635/- made u/s 68 of 1.T. Act, 1961 by the Id. AO
is hereby upheld. These grounds of appeal are dismissed.''
4.2 During the course of hearing, the ld. AR of the submitted that the ld.
CIT(A) was not justified in confirming the addition of Rs.1,50,32,635/- as
made by the AO. The ld. AR of the assessee reiterated the same
arguments as made before the lower authorities.
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4.3 On the other hand, the ld. DR supported the order of the ld. CIT(A).
4.4 We have heard both the parties and perused the materials available
on record. In these grounds of appeal, it is noted that assessee challenged
the action of ld. CIT(A) in confirming the addition of Rs.1,50,32,635/- u/s 68
of the Income Tax Act made by AO on the allegation that assessee had
paid cash and in turn received accommodation entry. In the above case, it
is noted that the assessment has been reopened based on some
information received from some officials of Investigation Wing of the
department that assessee had brought back his own unaccounted income
in books by obtaining accommodation entry. In the reasons recorded, a
single figure of Rs.1,50,32,635/- has been mentioned as unaccounted cash
without even giving specific bifurcation as to from which company, how
much sum is received by the assessee (APB 60-63). The narration as
mentioned at page 2 of ACIT, Circle-4, Jaipur order is as under:-
''3. Analysis of information collected / received: As per information, the
assessee company has introduced its unaccounted cash of Rs.1,50,43,035/- in
various dummy/ paper companies and gradually brought back the same in its
books of account in the form of RTGS/Transfer through circulatory fashion of
money without paying any tax.''
4. Enquiries made by the AO as sequel to information collected / received:
The specific information was receive from the ITO (Inv). Unit-I & AIU, Kolkata. The
information is specific and after going through this it is found that no further
inquiries is necessary before recording satisfaction for issuance of notice.''
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In this case, it was reiterated by the assessee that they had made sales in
F.Y. 2011-12 relevant to A.Y. 2012-13 to M/s Raj Rajeshwari Metal and
Minerals Pvt. Ltd. and M/s Glorious Merchandise Pvt. Ltd. of
Rs.68,08,020/- and Rs.82,24,615/- respectively, which aggregated to
Rs.1,50,32,635/-. The Sales so made by the assessee were subjected to
verification by AO during scrutiny assessment proceedings of A.Y.2012-13
completed u/s 143(3), wherein no adverse inference whatsoever was
drawn with regards to trading results or regarding parties to whom sales
waseffected nor any doubts were raised against the Debtors outstanding at
the end of the year. In the year under consideration, i.e. in F.Y. 2012-13
relevant to A.Y. 2013-14, assessee has merely received the amount
through banking channels, being the sum outstanding from debtors which
includes the payment received from above stated two companies. It
wasargued by the ld. AR that AO has exceeded his jurisdiction in taxing the
amount in the year of recovery when Sales was already declared and
accepted as such in the preceding year and such action of AO amounts to
double taxation of same income in A.Y. 2012-13 as well as A.Y. 2013-14,
which is against the principle of taxation. It is further submitted by the ld AR
that eventually, AO has made addition of Rs.1,50,32,635/- by holding the
same as accommodation entries in the shape of Share Application Money,
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which is not only clearly contrary to the reasons recorded but also contrary
to the fact on record as no fresh share application money was taken during
the year, which is evident from face of Balance Sheet itself (APB 06-49),
where there is no change in the figure of Share capital/ application money
as compared to preceding year. Also, no loan is appearing from any of the
companies as mentioned in the Reasons recorded. At this juncture, the ld.
AR invited our attention to para 4 page 10 of assessment order titled as
"Some important facts", where AO has noted that "....As per database of
shell companies, (1) M/s Moonshine Distributors Pvt. Ltd. (2) Shivganga
Suppliers Pvt. Ltd. etc. are shell companies.....". Basically, these are not
the new facts compiled by ld.AO during the course of assessment
proceedings and are rather exactly the same words as are appearing in the
Reasons recorded (para 2 of reasons) (APB 60-63). The AO in para 2 at
page 11 of the reassessment order has further observed that "Further, the
field enquiries by the ITI substantiated the above facts. It is pertinent to
mention here that the name of the companies which reflects in the said
investigation report, have financial transactions with the assessee as
well......."These observations of AO also clarify that no enquiries
whatsoever were made by AO to substantiate the reasons recorded and
assessment was completed solely on the basis of information received
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from investigation wing without application of mind. It is also noted that AO
at page 11 of the order has observed that"...On perusal of bank accounts
of all the companies, it is observed that there are cash deposits and RTGS
credits and transfers from different a/cs and simultaneously the said
amount transferred to the different a/cs through RTGS/transfer...." Thus it
is clear from these observations that there is no specific information which
substantiates the allegation of AO as to how assessee has routed his
unaccounted income. Similarly, AO, though had named 8 companies in the
reasons recorded, however eventually has treated only 2 companies as
"shell companies". All these facts show that AO has relied upon only
generalized information for making such a huge addition. Going further,
AO observes that "....the assessee have paid interest to all other
persons/firms from where he has taken unsecured loan except to the
companies which reflects in the said report." We appreciate that these
remarks also strengthen the case of assessee and are self-explanatory that
sum received by assessee were not in the nature of loan as has been
alleged by the AO. It is noted that assessee is a public limited company
and has to make different compliances under various Government
departments, i.e. Excise, Income Tax, ROC etc. and is also at times,
subject to spontaneous verification by such departments. Books of
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accounts of the company were also subject to audit, wherein no adverse
remarks have been given by the auditor. In the scenario, an addition made
by AO, without rebutting any of the documentary evidences submitted by
assessee and without bringing any document in support of his allegation is
absolutely arbitrary and deserves to be deleted. It is also noted from the
records that, assessee has not received any credit entry during the year in
the shape of unsecured loan or share application money from these two
companies as has been alleged by AO rather assessee has received the
sales consideration money in lieu of sales made in immediately preceding
year, i.e. A.Y. 2012-13. As noted above, assessment for A.Y. 2012-13 was
completed u/s 143(3) after thorough examination of details furnished by
assessee, which was again subject to reopening and both in proceedings
u/s 143(3) and in 147, sales of assessee was accepted as such, no action
could be taken in AY. 2013-14, where assessee has merely received
payment against outstanding balances of debtors and no transaction of
loan or share application has taken place. During the course of assessment
proceedings, assessee furnished copies of ledger accounts of respective
parties as appearing in its books of accounts for F.Y. 2011-12 as well as for
F.Y. 2012-13, wherein no discrepancy was pointed out and addition was on
pre conceived notion that assessee has obtained accommodation entry.
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We noticed that AO has also alleged that notices u/s 133(6) were issued to
Raj Rajeshwari Metals & Minerals Traders Pvt. Ltd. and Glorious
Merchandise Pvt. Ltd. in response to which no compliance was made by
them. Further the AO on the basis of field enquires stated to be made
through inspector of the office of DDIT, Kolkatta has alleged that these
"INVESTOR COMPANIES" have not existed at the given addresses. At
page 6 of the re-assessment order, report of the inspector in the case of
M/s Raj Rajeshwari Metals & Minerals Pvt. Ltd. was also
reproduced. During the course of reassessment proceedings, this
information was also provided to the assessee and assessee was asked to
establish the identity, genuineness and creditworthiness of the
"INVESTOR". In reply, assessee vide letter dt. 03.12.2019 (APB 83-85)
has clearly submitted that no unsecured loan or share application money
from these two companies was received and only payment received was
against the sales made to them. In support of the same copy of sale
invoices issued containing complete name, addresses at which goods were
delivered, details of transporter, Truck No. etc. and the amount of VAT
charged on the same were furnished, which remained uncontroverted.
Rather the AO has based her allegations on the strength of judgment of
Hon'ble Apex court given in the case of NRA Iron & Steel Pvt. Ltd. which
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case is not applicable to the facts of the present case in appeal as the
assessee in the present case has never received any unsecured loan or
share application money and the amount under reference was received
against the sales made. Further it is noticed that no effort was made by the
Department to make verification at the address given in the sale invoices
which is incidentally be the different from the address at which the spot
enquiry was made by the Inspector of DDIT, Investigation Wing, Kolkata.
All these facts further prove that the transaction carried out by the
assessee with these two companies were genuine transactions and were
already accepted by the department in the order passed u/s 143(3) for A.Y.
2012-13 at the time of sales and resultant profit has already been assessed
to tax. Therefore, by making addition of the consideration received against
the sales made is nothing but taxation of an income twice which is not
permissible under any provisions of Income Tax Act. Regarding non-
compliance of notice u/s 133(6), reliance is placed on the judgment of
Delhi Benches of ITAT in the case of Phool Singh vs ACIT,
ITANo.2901/Del/2014 (Case Law Paper Book pages 60-68), wherein
purchases made by assessee from certain supplier was doubted for the
reason that notices issued to them u/s 133(6) returned unserved. In this
case, it was categorically held that:
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".......assessee is regularly purchasing material from the above party and in
the past the assessment under section 143(3) were made in case of the assessee
wherein purchases from these parties are accepted. The purchases are made
from the party through account payee cheques and the proper adequate bills
supporting purchases were submitted. The assessee has submitted the confirmed
copy of the account from the books of the supplier and also stated that he is
assessed to income tax with ITO Ward 25/4 New Delhi. Further regarding the
address supplied by the assessee on which notices under section 133(6) remained
unserved, assessee supplied the same address which is also shown in the income
tax return of the supplier. Non complianceof summons under section 131 by the
suppliers cannot be the concern of the assessee. It is not the case of the revenue
that assessee was asked to produce the supplier.
............
............ The assessing officer made the whole addition by pointing out certain
lacunas in the bank account of the suppliers of the assessee, which cannot be
permitted. Merely because 133(6) notices issued to the party returned un-served
though it was the same address, which was supplied by supplier while filing its
income tax return, no fault can be put on the shoulder of assessee. Further, the
learned Commissioner (Appeals) confirmed the finding of the learned assessing
officer without giving any reason but merely reiterating the findings of the
assessing officer. In view of this the addition made by the learned assessing
officer of Rs. 2657303 from Suresh HYP Enterprises cannot be sustained and
hence, deleted. In the result ground No. 2 of the appeal of the assessee is
allowed."
It is noted that the assessee's case is on a better footing where the notices
issued u/s 133(6) were served upon the respective parties. However, it is
well known fact that usually people have a fear of ongoing inquiries and
litigation by the Income Tax Department, thus non-compliance of notices
u/s 133(6) could be for any reason and no adverse view be taken in the
case of assessee for this reason. It is also submitted by the ld.AR that
Address as mentioned in the Inspector's report is "27, Western Street,
Room No. 511, 2nd Floor, Kolkata, -700012", whereas the supply of material
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was made to that company at the address i.e. "Commerce House, 2A, GC
Avenue, 8th Floor, Kolkata 700013" which was also appearing on the copies
of the sale invoices (APB 86-126) submitted during the course of
assessment proceedings. It therefore appears that field enquiry has been
conducted by the inspector at the wrong address and adverse inference
drawn on the basis of such reportis not justified. Moreover, no result of the
inquiry carried out in the case of Glorious Merchandise Pvt. Ltd. has been
brought on record, therefore, it is not clear whether any field inquiry was
actually carried out or not in the case of this company. Thereafter, as
submitted above, from pages 8 to 15 in para 3 to 8 of the assessment
order, AO has tried to make out a case of accommodation entry in the
shape of unsecured loan / share application money and nothing is stated
about the claim of the assessee that the sales were made to these parties
which fact remained uncontroverted. Further as noted above in these paras
no new fact was brought on record rather AO has reproduced the reasons
recorded at the time of initiation of reassessment proceedings that too in
identical words. Further the other judgments relied upon of Hon'ble Delhi
High Court in case of CIT Vs. N.R. Portfolio Pvt. Ltd., Hon'ble Guwahati
High Court in case of Nemichand Kothari Vs. CIT, Hon'ble Supreme Court
in case of CIT Vs. P. Mohan Kala, Sumati Dayal Vs. CIT are all related to
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section 68 of the Act and not relevant to the fact of the case in hand and
thus are totally distinguishable to the fact and not applicable. It is time and
again submitted during the course of reassessment proceedings as well as
in the present submission that the amounts received from these two
companies is against the sales made to them in preceding years and AO
while recording the reasons has alleged the same as the assessee's own
money routed through RTGS in the shape of accommodation entries and
while completing the assessment changed his stand from unsecured loan
to share application money without any basis or material brought on record
to allege the same more particularly when no amount whatsoever was
received by the assessee as share application money in the year under
appeal as is clearly evident from the perusal of the financial statements of
the assessee company available with the Assessing Officer (APB 06-49).
We also noticed that AO has further alleged that assessee could not
provide evidences regarding transportation of goods from its place to the
destination companies. In this regard, it was submitted that assessee not
only furnished ledger copies of both the parties but also furnished copies of
invoices, which contained the necessary details of transporters and details
of vehicle through which goods were transported, but the AO brushed aside
the same without any cogent reason. We find that it is a matter of fact that
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the AO made addition by relying upon the information received from
Investigation Unit and some enquiries made, without even providing
assessee an opportunity to cross examine. Hon'ble Apex court in the case
of CCE Vs. Andaman Timber Industries, (324) ELT 641 (Case Law
Paper Book pages 69-75) has held as under:
"6. According to us, not allowing the assessee to cross-examine the witnesses
by the Adjudicating Authority though the statements of those witnesses were made
the basis of the impugned order is a serious flaw which makes the order nullity
inasmuch as it amounted to violation of principles of natural justice because of
which the assessee was adversely affected. It is to be borne in mind that the order
of the Commissioner was based upon the statements given by the aforesaid two
witnesses. Even when the assessee disputed the correctness of the statements and
wanted to cross-examine, the Adjudicating Authority did not grant this
opportunity to the assessee. It would be pertinent to note that in the impugned order
passed by the Adjudicating Authority he has specifically mentioned that such an
opportunity was sought by the assessee. However, no such opportunity was granted
and the aforesaid plea is not even dealt with by the Adjudicating Authority. As far
as the Tribunal is concerned, we find that rejection of this plea is totally untenable.
The Tribunal has simply stated that cross-examination of the said dealers could not
have brought out any material which would not be in possession of the appellant
themselves to explain as to why their ex-factory prices remain static. It was not for
the Tribunal to have guess work as to for what purposes the appellant wanted to
cross-examine those dealers and what extraction the appellant wanted from them.
7. As mentioned above, the appellant had contested the truthfulness of the
statements of these two witnesses and wanted to discredit their testimony for which
purpose it wanted to avail the opportunity of cross-examination. That apart, the
Adjudicating Authority simply relied upon the price list as maintained at the depot
to determine the price for the purpose of levy of excise duty. Whether the goods
were, in fact, sold to the said dealers/witnesses at the price which is mentioned in
the price list itself could be the subject matter of cross-examination. Therefore, it
was not for the Adjudicating Authority to presuppose as to what could be the
subject matter of the cross-examination and make the remarks as mentioned
above."
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We also take into consideration the decision of Hon'ble Apex Court in the
case of CIT vs Odeon Builders Pvt. Ltd. in Civil Appeal No. 9604-9605 of
2018(Case Law Paper Book pages 76-78) has held as under:-
S. 68/69 Bogus Purchases: Disallowance cannot be made solely on third party
information without subjecting it to further scrutiny. The assessee has prima facie
discharged the initial burden of substantiating the purchases through various
documentation including purchase bills, transportation bills, confirmed copy of
accounts and the fact of payment through cheques, & VAT Registration of the
sellers & their Income Tax Return. The AO has also not provided a copy of the
statements to the assessee, thus denying it opportunity of cross examination.
Hence, it is observed that ld. CIT(A) while deciding the matter on merits
has observed that the assesseewas unable to support claim of sale since
there is neither any truck details nor any stamping on invoices. In this
regard it was submitted that observations of ld. CIT(A) are not in parity with
evidence adduced before him. The attention of the Bench was invited to
paper book pages 86 to 126, wherein assessee has furnished the copies of
invoices of both the parties i.e M/s Glorius Merchandise Private Limited
(APB 86-107) &M/s Raj Rajeswari Metals & Minerals Traders Pvt. Ltd.
(APB 108-126). On perusal of invoices, it is clearly evident that Truck No.
are clearly mentioned in the Dispatch Document No. & Transporter Name
in "Dispatched through" details. Further Invoices are duly verified and
properly stamped by the authorized signatory. It is further relevant to state
that ld. CIT(A) has also failed to acknowledge the fact that Address as
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mentioned in the Inspector's report for one of the party i.e. M/s Raj
Rajeswari Metals & Minerals Traders Pvt. Ltd. is "27, Western Street,
Room No. 511, 2nd Floor, Kolkata, -700012", whereas the supply of
material was made to that company at the address i.e. "Commerce House,
2A, GC Avenue, 8th Floor, Kolkata 700013" which was also appearing on
the copies of the sale invoices (APB 108-126). Thus, the allegation of ld.
CIT(A) that assessee has not provided new address of the parties is
infructuous and it clearly depicts that ld. CIT(A) has confirmed the additions
so made by AO by solely relying upon the information of Investigation wing.
Hence, the bench noticed that addition confirmed by ld. CIT(A) is contrary
to the facts on record and is against the principle of taxation, whereas
assessee has substantiated its claim by furnishing all the necessary
documentary evidences, therefore, the Bench does not concur with the
findings of the ld. CIT(A) and addition so sustained is directed to be
deleted. Thus ground No. 3 to 3.2. of the assessee is allowed.
5.1 Apropos Ground No. 4 of the assessee, it is noticed that the ld.
CIT(A) dismissed this ground of the assessee by observing as under:-
''6.2 I have considered the facts of the case and written submissions of the
appellant as against the observations/findings of the AO in the assessment order
for the year under consideration. The contentions/submissions of the appellant are
being discussed and decided as under:-
69
ITA NO.616/JPR/2024
TIJARIA POLYPIPES LTD VS DCIT CIRCLE-4, JAIPUR
In this ground of appeal, the appellant has challenged the addition of Rs.
3,75,816/- made by Id. AO by alleging the commission @ 2.5% being paid for
obtaining accommodation entry. It was submitted that no accommodation entry of
share application money has been taken by the appellant and rather no share
application money or share capital has been raised by the appellant during the
year under consideration and accordingly there is no question of payment of
commission.
I have considered the argument of the Id. AR and facts on record. As I have
upheld the addition of the credit shown as received as unexplained credit u/s 68 of
1.T. Act, 1961 wherein impugned companies have provided accommodation
entries, the payment of commission for obtaining these entries cannot be ruled out
and is in natural course. Accordingly the addition so made by the Id. AO is hereby
confirmed. The ground of appeal is dismissed.
5.2 During the course of hearing, the ld. AR of the assessee submitted
that that the ld. CIT(A) was not justified in upholding the addition of
Rs.3,75,816/- by alleging the same as commission for obtaining
accommodation entry. The ld. AR further submitted that while holding the
sum received from debtors bogus merely on the basis of information
received from investigation wing, the AO as well as ld. CIT(A) have further
presumed that a commission of the above mentioned amount @ 2.5%
might have been paid by assessee as a consideration for arranging such
accommodation entry.The ld. AR submitted that firstly, no transaction in the
nature of unsecured loan / share application money was entered into by
Assessee Company during the year under consideration with the two
companies from which it was alleged that assessee has received share
application money. It is also an uncontroverted fact that the sales were
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ITA NO.616/JPR/2024
TIJARIA POLYPIPES LTD VS DCIT CIRCLE-4, JAIPUR
made to these two parties in preceding year and assessee has received
outstanding amount in the year under appeal. It was also submitted that
sale made by assessee in F.Y. 2011-12 is completely genuine as has been
stated in ground of appeal No. 2 above, and assessee has not taken any
loan/share capital as has been alleged. Thus, in view of the same there
arises no question of any commission payment. Secondly, the ld. AR
submitted that this addition also is solely based upon the information
received from third party absolutely uncorroborated in much as there is no
material available on record to rebut the documentary evidences furnished
by assessee. It is therefore submitted that the addition of Rs.3,75,816/- so
confirmed by ld. CIT(A) are on the basis of assumptions and presumptions
deserves to be deleted.
5.3 On the other hand, the ld. DR supported the order of the ld CIT(A)
5.4 After hearing both the parties and perusing the materials available on
record, the Bench noticed that when we have deleted the addition to the
tune of Rs.1,50,32,535/- made by the AO u/s 68 of the Act then there is no
question arise relating to commission amount of Rs.3,75,816/- paid by the
assessee for obtaining accommodation entry. Hence, the same is directed
to be deleted.
71
ITA NO.616/JPR/2024
TIJARIA POLYPIPES LTD VS DCIT CIRCLE-4, JAIPUR
6. In the result, the appeal of the assessee deserves to be allowed
Sd/-
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PER :NARINDER KUMAR, JUDICIAL MEMBER.
I have gone through the draft order received from Learned Brother. I find it to be a fit case to discuss the contentions, actually put forth in the course of arguments, by Learned AR for the appellant, and Learned DR for the Department, and record reasons and findings on the issues raised.
2. Appellant-assessee claimed to be engaged in the business of manufacturing of PVC Pipes, HDPE Pipes, POY, DTY, Blankets etc. has come up in appeal against impugned order whereby Learned CIT(A) has dismissed the appeal preferred while challenging assessment order dated 10.12.2019 passed by Learned Assessing Officer, under section 143(3) read with section 147 of Income Tax Act, 1961 (in short "the Act").
3. Vide impugned assessment order, Learned AO made two additions i.e. one under section 68 of the Act and the othr under section 69C of the Act, and thereby assessing the total taxable income of the assessee at Rs.1,54,08,541/-.
Ist Addition
4. Addition of Rs. 1,50,32,635/- under section 68 of the Act was made on the ground that the assessee had failed to explain genuineness of share application money to the tune of Rs. 68,08,020/-received from M/s Raj Rajeshwari Metals & Minerals Traders Pvt. Ltd., and share application money to the tune of Rs. 82,24,615/-received from M/s Glorious Merchandise Pvt. Ltd.
2nd Addition
5. Addition under section 69C of the Act was made as the assessee was found to have taken bogus share application money of Rs.
72ITA NO.616/JPR/2024 TIJARIA POLYPIPES LTD VS DCIT CIRCLE-4, JAIPUR 1,50,32,635/-in his books from the entry providers. Said addition of Rs.3,75,816/-was made being 2.5% of Rs. 1,50,32,635/-, as unexplained expenditure of the assessee.
6. It may be mentioned here that the case was earlier completed on 12.3.2016 under section 143(3) of the Act, after addition of Rs. 5,12,198/-. However, the case was re-opened under section 148 of the Act, after seeking approval of the competent authority.
It was re-opened on receipt of information that the assessee was found to have received a credit entry from shell/dummy/paper companies and introduced his own unaccounted cash by routing it through a web of dubious companies and by way of suspicious transactions.
7. The assessee filed his return of income on 20.9.2019, in response to the notice under section 148 of the Act, and declared current year loss of Rs. 1,90,14,577/-. Notice under section 143(2) of the Act was then served, followed by notice under section 142(1) and subsequent notices.
In the assessment proceedings, the assessee was called upon to establish identity and creditworthiness of share holders/investors and also genuineness of the transactions.
The assessee submitted his reply dated 3.12.2019. Same has been reproduced at page 7 and 8 of the assessment order by way of scanning.
Learned Assessing Officer discussed the version put forth by the assessee in the reply and recorded his observations at page 9 of the assessment order to arrive at the conclusion that the amount credited in the books by the dummy companies remained unexplained, and further that merely because identity of investors is proved, but creditworthiness is not proved, the assessee does not stand discharged of the onus on him. That is how, additions came to be made to the income of the assessee.
As noticed above, Learned CIT(A) upheld the two additions and thereby dismissed the appeal filed by the assessee.
73ITA NO.616/JPR/2024 TIJARIA POLYPIPES LTD VS DCIT CIRCLE-4, JAIPUR Contentions & Discussion
8. While arguing the appeal, Learned AR for the appellant has submitted that the subject amount was as against sales of the previous year, but received in the year under consideration, and that the Assessing Officer had checked the account books of the assessee including ledger accounts, and further that the invoices contained all relevant details, and as such, the Assessing Officer should not have reopened the case by issuing notice under section 148 of the Act.
On the other hand, Learned DR for the department has submitted that addition under section 68 of the Act was made finding that the subject entry was not on account of sales, and further that while discussing the ground raised on behalf of the appellant, CIT(A) had discussed the version of the assessee as regards sales part and held the sales to be sham, and as such, there is no merit in the contention raised on behalf of the appellant.
9. Per contra, Learned AR for the appellant has pointed out that the assessee had filed objections before the Assessing Officer to the re- opening of the case, but those never came to be disposed of, and rather, CIT(A) has dealt with said point without notice or opportunity to the appellant of being heard in this regard. Further, it has been pointed out that subsequently, an order disposing of the objections was passed by the Assessing Officer, but ultimately said order disposing of the objections was withdrawn. The contention is that the objections to the re-opening were never decided by the Assessing Officer. Learned DR does not dispute this factual position regarding subsequent disposal of the objections by the Assessing Officer and ultimate withdrawal of the said order disposing of the objections. The only submission put forth by Learned DR in this regard is that the same was withdrawn, as it pertained to some other case and was inadvertently uploaded as if relating it to the appellant.
10. The fact remains that the order disposing of the objections was withdrawn.
11. As regards Ld. CIT(A) having dealt with the issue of non disposal of objections by the Assessing Officer, Learned DR has contended that when CIT(A) discussed the issue of re-opening and referred to case law as regards his powers co-terminus with that of Assessing Officer, the order does not become invalid.
74ITA NO.616/JPR/2024 TIJARIA POLYPIPES LTD VS DCIT CIRCLE-4, JAIPUR
12. In this regard, suffice it to state that when as per requirement of the law, the objections filed by the assessee were to be disposed of by the Assessing Officer, same were required to be disposed of by the said Officer, before framing of the assessment, and not by Learned CIT(A). Therefore, there is no merit in the explanation put forth on behalf of the department on this issue.
13. The fact remains that this is a case where the Assessing Officer failed to dispose of the objections filed by the assessee as to the re-opening of the matter. Consequently, it is held that the Assessing Officer proceeded to conduct assessment proceedings in an arbitrary manner and without following the requirement of law. This fact adversely affects the framing of the assessment order.
14. The last contention raised by Learned AR for the appellant is that notice under section 148 of the Act having been issued on 18.3.2019 was clearly issued after the prescribed period of 4 years, and as such, the assessment order passed by the Assessing Officer was without jurisdiction. In support of his contention, Learned AR has referred to decisions, by giving title of the decided cases with reference to the citations where the same stand reported, as noticed above at page 21 and 22 of the draft order from Learned Brother. In the written submission, some portions from the decisions have been extracted here and there, on the issue. In other words, full text thereof has not been provided. However, separate compilation has been provided with full text so as to cite decisions by Hon'ble Courts and by Co-ordinate Benches of ITAT.
On the other hand, Learned DR for the department has submitted that case could be re-opened and assessment order passed even beyond 4 years period due to non-disclosure or concealment of material particulars by the assessee. In this regard, Learned DR has provided synopsis of the case laws, as available above at page 22 to 30 of the draft order received from Learned Brother. In other words, full text thereof has not been provided.
15. Admittedly, assessment stood already completed under section 143(3) of the Act on 12.3.2016. Assessment pertains to the assessment year 2013-14.
16. In view of the proviso to section 147 of the Act, during the relevant period, such an assessment could be re-opened beyond 4 years period in 75 ITA NO.616/JPR/2024 TIJARIA POLYPIPES LTD VS DCIT CIRCLE-4, JAIPUR case of any failure on the part of the assessee in disclosing complete and true material particulars.
17. Admittedly, notice for re-opening the came came to be issued on 18.3.2019. Even if it is case of the department that there was failure on the part of the assessee in disclosing of any material fact, as noticed above, the Assessing Officer did not dispose of the objections filed by the assessee as regards re-opening of the case, and rather, proceeded to conduct assessment proceedings leading to the assessment order. No just reason or explanation has been put forth in non disposal of the objections filed by the assessee. This amounts to violation of the principles of natural justice i.e. reasonable opportunity of being heard to the assessee. Had the objections been disposed of, then the things would have been otherwise. In that situation, the assessee would have been able to know his position and the stand to be taken or would have taken recourse to lawful remedy, in accordance with law, while participating in the steps taken for conducting of the assessment proceedings.
18. In view of the well settled legal proposition on the issue of limitation for issuance of notice for re-opening of a completed assessment, beyond the period of limitation, there is merit in the contention raised on behalf of the appellant.
19. In view of the above discussion, the impugned order passed by Learned CIT(A) thereby sustaining the assessment year, deserves to be set aside.
20. As a result, the appeal deserves to be allowed. Appeal file be laid before Learned Brother for pronouncement.
Sd/-
(Narinder Kumar) Dated: 29.1.2025. Judicial Member.
76ITA NO.616/JPR/2024 TIJARIA POLYPIPES LTD VS DCIT CIRCLE-4, JAIPUR Operative Part As a result, this appeal of the assessee is hereby allowed.
Order pronounced on 30/01/2025
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(NARINDER KUMAR) (RATHOD KAMLESH JAYANTBHAI)
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Tk;iqj@Jaipur
fnukad@Dated:- 30/01/2025
*Mishra
vkns'k dh izfrfyfivxzsf'kr@Copy of the order forwarded to:
1. The Appellant- M/s. Tijara Polypipes Ltd., Jaipur
2. izR;FkhZ@ The Respondent- The DCIT, Circle-4, Jaipur
3. vk;djvk;qDr@ The ld CIT
4. foHkkxh; izfrfuf/k] vk;djvihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur
5. xkMZQkbZy@ Guard File (ITA No.616/JP/2024) vkns'kkuqlkj@ By order, lgk;diathdkj@Asstt. Registrar