Income Tax Appellate Tribunal - Ahmedabad
Vijen Zhaveri, Mumbai vs Income Tax Officer,Ward-5(2),, ... on 7 February, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL
AHMEDABAD "A" BENCH
(BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER
& SHRI MAHAVIR PRASAD, JUDICIAL MEMBER)
ITA. No:740/AHD/2013
(Assessment Year: 1995-96)
Shri Vijen Jhaveri 27, V/S Income Tax Officer, Ward-
Navyug Society, 612 "Raj 5 (2), Surat
Hem" Building Opp.
Sunflower Hospital, V.M.
Road, Vile Parle (w),
Mumbai 400056
(Appellant) (Respondent)
PAN: AAZPJ4467H
Appellant by: Shri Dharmesh Shah with Kulin Mehta, AR
Respondent by : Shri K. Madhusudan, Sr. D.R.
(आदे श)/ORDER
Date of hearing : 24 -01-2017
Date of Pronouncement : 07 -02-2017
PER N.K. BILLAIYA, ACCOUNTANT MEMBER:
1. With this appeal, the assessee has challenged the correctness of the order of the Ld. CIT(A)-I, Surat dated 09.01.2013 pertaining to A.Y. 1995-96.
2 ITA No. 740/Ahd/2013. A.Y. 1995-96
2. The assessee has raised four substantive grounds of appeal. The ld. counsel for the assessee stated that he is not pressing ground no. 1 and, therefore, the same is dismissed as not pressed.
3. Vide ground no. 2, the assessee has questioned the validity of the assessment made u/s. 147 r.w.s 143(3) r.w.s. 254 of the Act. This is the second round of litigation, a perusal of the record show that in the first round of litigation, the quantum additions made u/s. 68 of the Act travelled up to the Tribunal. The Tribunal in ITA No. 4361/Ahd/2003 vide order dated 01.02.2010 observed as under:-
3. The ld. counsel for the assessee, first of all, started argument on the reopening. The ld. CIT-DR made preliminary objection to this issue and stated that this was not raised before CIT(A) and even now before the Tribunal also the ground No. 1 is regarding the confirmation of the action of the Assessing Officer in completing the ex parte assessment and not on re-opening. The relevant ground no. 1 reads as under:-
"On the facts and in circumstances of the case as well as law on the subject the ld. CIT(A) has erred in confirming the action of the Assessing Officer in completing and passing order u/s. 144 r.w.s 147 of the I.T. Act."
We find from the arguments of both the sides that the issue of re-opening u/s. 147 of the Act has not been raised neither before the CIT(A) nor before the Tribunal. At this, the ld. counsel for the assessee fairly stated that he is not interested in taking up this argument as he fairly conceded that no such ground was raised before CIT(A) and even now before Tribunal. He also agreed that there is no case for re-opening in assessee's facts. Accordingly, he has not pursued this issue.
4. Coming to merits of the case, the assessee has raised two issues i.e. making of addition of unexplained cash credits and also disallowance of expenses. At the outset, the ld. counsel for the assessee stated that the assessment was framed ex-parte u/s. 144 of the Act and no opportunity was provided by the Assessing Officer. Even the CIT(A) has also not provided the opportunity as the appellate order is not at all a speaking order. Accordingly, he urged the Bench that the matter be restored before the CIT(A) on merits. He fairly conceded that he will 3 ITA No. 740/Ahd/2013 . A.Y. 1995-96 not raise the legal issues. On going through the case records and on hearing the ld. CIT-DR we find that none of the authorities below have decided the issues on merits and also made addition without providing reasonable opportunity of being heard. Keeping in view the principles of natural justice in mind, we set aside the two issues on merits to the case of the CIT(A). Accordingly, the CIT(A) after taking a remand report from the Assessing Officer will decide after providing reasonable opportunity of being heard to the assessee.
4. A perusal of the aforementioned observation and the findings of the Co- ordinate Bench show that the assessee has conceded more than ones so far as the issue relating to the reopening of the assessment is concerned. We also find that the Co-ordinate Bench has set aside the assessment to the files of the A.O. because none of the authorities below have decided the issues on merits and made the impugned additions.
5. On such observations and findings, we fail to understand how the assessee could question the re-opening of the assessment once again before us. On the given facts, we do not find any force in this grievance of the assessee at this stage and the same is dismissed.
6. On merits of the case, rival contentions were heard at length. We have given a thoughtful consideration to the orders of the authorities below and the order of the Co-ordinate Bench in the first round of litigation.
7. The directions of the Tribunal were very specific and the A.O. was directed to decide the issue on merits of the case.
4 ITA No. 740/Ahd/2013. A.Y. 1995-96
8. The bone of contention is the credit of Rs. 2.68 crores found in the balance sheet on account of various creditors. The assessee was asked to furnish details of all the creditors in the light of the provisions of section 68 of the Act. In one of his reply, the assessee categorically stated that the creditors shown in the balance sheet are bogus. The assessee also explains his modus operandi regarding transactions of cash deposited and cheques given in the statement recorded by the A.O. u/s. 131 of the Act.
9. By way of an affidavit, the assessee stated that all the depositors are not genuine and all the lenders are fictitious and the real owner and beneficiaries of such cash received were partly to whom the cheques were issued. It was explained that the amount shown as loans given, merely represent accommodation transaction and are not actual loans taken or given. It was strongly contended that the assessee was only receiving commission for providing for such accommodation entries.
10.The modus operandi of the assessee and his detailed submission did not find any favour with the A.O. who was of the firm belief that the onus is upon the assessee to explain the credit entries in his books of accounts and since, the assessee has grossly failed in discharging the onus cast upon him by the provisions of section 68 of the Act, the impugned credit entry of Rs. 2.68 crores was treated as deemed income of the assessee and was added by the A.O. 5 ITA No. 740/Ahd/2013 . A.Y. 1995-96
11.Assessee unsuccessfully litigated the matter before the First Appellate Authority. The First Appellate Authority confirmed the additions made by the A.O.
12.Before us, the ld. counsel for the assessee reiterated what has been stated throughout the proceedings before the lower authorities. It is the say of the ld. counsel that the assessee is a man of meager means and, therefore, cannot be said to have earned such exorbitant unaccounted income. Ld. Counsel once again stated that the assessee is merely an entry provider earning commission on such accommodation entries.
13.The ld. D.R. strongly supported the findings of the lower authorities. It is the say of the ld. D.R. that the assessee has grossly failed in discharging the burden cast upon him by the provisions of section 68 of the Act. Therefore, there is no error or infirmity in the findings of the ld. CIT(A).
14.Before proceeding further, certain facts emanating from the record before us need special mention. In his statement recorded u/s. 131 of the Act on 01.12.2012, the assessee had explained that since past 10 years he is employed in China from where he is drawing salary of Rs. 10.80 lacs (in Indian Currency). It is also seen that the assessee has specifically stated that he is not maintaining any bank account in China and was drawing salary in cash. It is also found that in Indian rupees, the total expenditure of the assessee was 6.50 lacs. These facts show that the assessee was a man of small means. This also shows that since past 10 years, the assessee is doing 6 ITA No. 740/Ahd/2013 . A.Y. 1995-96 job in China. This explains why the assessee could not furnish the requisite details for the assessment year under consideration. We also find that this was specifically explained by the assessee in his reply dated 21st November 2011 exhibited at pages 25 to 27 of the paper book. We also find that vide letter dated 12th October 2011 exhibited at pages 21 and 22 of the paper book. The assessee had requested the A.O. to make enquiries u/s. 131 or u/s. 133(6) of the Act so as to obtain relevant bank statements. The information given in the remand proceedings read as under:-
Annexure 1 It is submitted that during the financial year 1994-95, the assessee was in need of funds. Hence, under the guidance from the friends, the assessee decided to carry on the activity of providing accommodation transactions which could help him to generate some income.
In the course of the business being carried on by the assessee, various customers approach the assessee for obtaining adjustment bills. The customers make deposits in cash amounts and in turn they take cheques from the assessee for amounts slightly lesser than the amounts of deposits, the difference representing the commission realised by the assessee. Many a times, commission is paid in cash. The prevalent commission on such dealings is 0,15%. The said cash so received from the customers/beneficiaries are then deposited in the bank account under the guise of loan received from certain fictitious parties in cash in the amounts of Rs, 20,000/- each. Out of the amounts so deposited in the bank account, the cheques of the identical amounts are issued to the beneficiaries. The said payments are reflected as part of the loans and advances in the balance sheet of the assessee.
It is submitted that the cash so deposited in the bank account represents the cash belonging to the parties to whom the cheques are issued since the said parties are the ultimate beneficiaries of the amounts, in order to show the said transaction as genuine financing transaction, the assessee also periodically receives interest from the parties which are deposited in the bank account and the cash is repaid back to them.
It is submitted that the entire transaction representing loan given and the corresponding loan taken are non-genuine transaction and that the assessee has 7 ITA No. 740/Ahd/2013 . A.Y. 1995-96 never taken any such loan or given any loan to these parties and that the transactions are only in the nature of accommodation transaction. By engaging in such transaction, the beneficiaries tend to convert their unaccounted money into accounted money and hence can utilize the same. It is submitted that the real owners and beneficiaries of the said amount are those parties who have been issued the cheques and hence the assessee should not be subjected to tax on the amounts or income which does not belong to him. It is submitted that the tax should be levied on the persons who have actually earned the said amounts and to whom the said cash belong. The details of the names and addresses of the parties have already been furnished to your goodself. Based on the said details, we humbly request: your goodself that the aforesaid submissions made by the assessee may kindly be confirmed by Issuing summons to these parties and calling upon them to explain the correct facts. We submit that these facts can be only examined by summoning these parries and ascertaining the correct truth from them. Your goodself is vested with vide powers under the law to make necessary enquiries so as to ensure that only correct income is taxed in the hands of the assessee.
In light of the above,, we submit that the amounts shown as loans taken in the balance sheet cannot be added as unexplained income of the assessee and that the assessee can only be subjected to tax on the commission income for arranging the said transactions.
15. A perusal of the afore-stated information for remand report substantiates the facts given at the time of the statement of the assessee recorded on 01.12.2012.
16.The A.O. was well aware of the fact that the impugned transactions were done by account payee cheques which means that the money has flown from one identified bank account to another identified bank account.
Nothing prevented the A.O. to trace the beneficiary bank account but we find that the A.O. has not done any such exercise. No doubt, the burden is on the assessee but considering the nature of the transactions in the light 8 ITA No. 740/Ahd/2013 . A.Y. 1995-96 of the statement of the assessee, the A.O. should have made enquiries in depth to trace out the real beneficiaries of the accommodation entries provided by the assessee.
17.As mentioned elsewhere, the assessee is a man of small means, therefore, cannot be said to have earned such exorbitant unaccounted income. More so, the assessee is employed in China and his only source of income is the salary received by him in China.
18.It is a settled proposition of law that Income Tax proceedings are civil proceedings and the degree of proof is by preponderance of probabilities. Considering the facts in totality in their true perspective, in our considered view, the balance of convenience, in the light of the preponderance of probabilities, is in favour of the assessee.
19.In our considered opinion, considering the nature of transactions and the acceptance by the assessee being an entry provider, the impugned transactions have to be considered in the light of the acceptance of the assessee. "Don't shoot the messenger". The assessee is earning commission by providing such accommodation bills and in our considered view and the understanding of the facts, the only addition that can be made on the given facts is the commission earned by the assessee by providing such accommodation entries. Considering the peculiarity of the facts of the case in hand, addition of the commission @ 3% of the accommodation entries 9 ITA No. 740/Ahd/2013 . A.Y. 1995-96 should meet the ends of justice. We, accordingly, direct the A.O. to treat 3% of the accommodation entry as the income of the assessee.
20.We would like to make it clear that our findings are based on the peculiar facts of the case in hand and should not be used as precedence in any other case.
21.Since, we have decided the appeal in favour of the assessee on the peculiar facts of the case only we do not find it necessary to dwell into the judicial decisions relied upon by both sides.
22.In the result, the appeal filed by Assessee is allowed.
Order pronounced in Open Court on 07- 02- 2017
Sd/- Sd/-
(MAHAVIR PRASAD) (N. K. BILLAIYA)
JUDICIAL MEMBER True Copy ACCOUNTANT MEMBER
Ahmedabad: Dated 07/02/2017
Rajesh
Copy of the Order forwarded to:-
1. The Appellant.
2. The Respondent.
3. The CIT (Appeals) -
4. The CIT concerned.
5. The DR., ITAT, Ahmedabad.
6. Guard File.
By ORDER
Deputy/Asstt.Registrar
ITAT,Ahmedabad