M/s. Green Mark Infra Ltd., New Delhi V. DCIT, New Delhi

CO 400/DEL/2015

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4898 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s) 4 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 26-10-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 22-12-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: S S RANA
• Keywords: Reopening of assessment; Unexplained cash credit; Unexplained expenditure; Share purchase agreement; Opportunity of being heard; Principle of natural justice; Opportunity of cross examination; Question of law; Tangible material; Difference of opinion; Corroborative evidences; Accommodation entries; Onus to prove; Revised return; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 143(3); 133A; 133(6); 147; 68; 69; 148; 132; 15

Judgement Text

PAGE | 1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G : NEW DELHI BEFORE SHRI KULDIP SINGH , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 6206 TO 6208 /DEL/2015 (ASSESSMENT YEAR: 2007 - 08 TO 2009 - 10 ) DCIT, CENTRAL CIRCLE - 18, ROOM NO. 102, ARA CENTRE, E - 2, JHANDEWALAN EXTN, NEW DELHI VS. GREEN MARK INFRA LTD, 5/5761, DEV NAGAR, KAROL BAGH, NEAR YES BANK ATM, NEW DELHI PAN: AAACJ3650Q (APPELLANT) (RESPONDENT) CO NO. 398 TO 400/DEL/2015 (IN ITA NO. 6206 TO 6208/DEL/2015 (ASSESSMENT YEAR: 2007 - 08 TO 2009 - 10 ) DCIT, CENTRAL CIRCLE - 18, ROOM NO. 102, ARA CENTRE, E - 2, JHANDEWALAN EXTN, NEW DELHI VS. GREEN MARK INFRA LTD, 5/5761, DEV NAGAR, KAROL BAGH, NEAR YES BANK ATM, NEW DELHI PAN: AAACJ3650Q (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S. S. RANA, CIT DR REVENUE BY: NONE DATE OF HEARING 25/09 / 2018 DATE OF PRONOUNCEMENT 2 6 / 10 / 2018 O R D E R PER PRASHANT MAHARISHI , A. M. 1. TH ESE ARE THE THREE APPEALS FILED BY THE REVENUE FOR THREE DIFFERENT ASSESSMENT YEARS IN CASE OF M/S. GREEN MARK INFRA LTD (ASSESSEE) FOR AY 2007 - 08, 2008 - 09 A N D 2009 - 10 , WHEREIN, THE LD CIT(A) VIDE ORDER DATED 28.09.2015 FOR THE ALL THESE ASSESSMENT YEAR S DELETED THE ADDITION OF RS. 39532500/ - , RS. 68531671/ - AND RS. 121033910/ - MADE BY THE LD AO FOR RESPECTIVE YEARS U/S 68 AS UNEXPLAINED DEPOSITS. THE LD CIT(A) FURTHER DELETED THE ADDITION MADE BY THE LD ASSESSING OFFICER @10% OF PROFIT O N INVESTMENTS FOR THESE YEARS HAVE ALSO BEEN DELETED. THEREFORE, REVENUE IS AGGRIEVED AND HAS FILED THESE APPEALS. DCIT VS GREEN MARK INFRA LTD, ITA NO. 6206 TO 6208/DEL/2015 & CO NO. 398 TO 400/DEL/2015 (ASSESSMENT YEAR: 2007 - 08 TO 2009 - 10) PAGE | 2 2. THE ASSESSEE HAS ALSO FILED CROSS OBJECTIONS CHALLENGING THE REOPENING OF THE ASSESSMENT FOR ALL THESE THREE YEARS BY FILING THE CROSS OBJEC TIONS. 3. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL FOR THE ASSESSMENT YEAR 2007 - 08: - (I) THAT THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING RS. 3,95,32,500/ - WHICH WAS ADDED TO THE INCOME OF THE ASSESSEE ON ACCOUNT OF AS UNEXPLAINED DEPOSITS. (II) THAT THE COMMISSIONER OF INCOME TAX (APPEALS) H AS ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING RS. 15,35,000/ - WHICH WAS ADDED TO THE INCOME OF THE ASSESSEE ON ACCOUNT OF AS UNEXPLAINED LIABILITIES. (III) THAT THE COMMISSIONER OF INCOME TAX(APPEAL) HAS ERRED IN LAW AND ON FACTS IN RELYING ON THE S UBMISSIONS FILED BY THE ASSESSEE WHICH WERE INADEQUATE, INCOMPLETE, NOT GENUINE, NOT RELIABLE AND ALREADY REJECTED BY AO DURING THE ASSESSMENT STAGE. (IV) (A) THE ORDER OF THE CIT(APPEALS) IS ERRONEOUS AND NOT TENABLE IN LAW AND ON FACTS. 4. THE ASSESSEE HA S RAISED THE FOLLOWING GROUNDS IN CROSS OBJECTION FOR THE ASSESSMENT YEAR 2007 - 08 : - 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN FRAMING IMPUGNED REASSESSM ENT ORDER AND THAT TOO WITHOUT ASSUMING JURISDICTION AS PER LAW AND WITHOUT COMPLYING THE MANDATORY CONDITIONS OF SECTION 147 TO 151 OF THE ACT. 2. T HAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, ACTION OF LD. CIT(A) IN CONFIRMING THE ACTION OF LD. AO IN FRAMING IMPUGNED REASSESSMENT ORDER U/S 147/143(3) IS BEYOND JURISDICTION, BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. IN ANY VIEW OF THE MATTER AND IN ANY CASE, IMPUGNED ASSESSMENT ORDER COULD NOT HAVE BEEN PASSED UNDER THE LAW, M ORE SO WHEN ORIGINAL ASSESSMENT WAS ANNULLED. 5. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL FOR THE ASSESSMENT YEAR 2008 - 09: - (I) THAT THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING RS. 6,85,31,671 / - WHICH WAS DCIT VS GREEN MARK INFRA LTD, ITA NO. 6206 TO 6208/DEL/2015 & CO NO. 398 TO 400/DEL/2015 (ASSESSMENT YEAR: 2007 - 08 TO 2009 - 10) PAGE | 3 ADDED TO THE INCOME OF THE ASSESSEE ON ACCOUNT OF AS UNEXPLAINED DEPOSITS. (II) THAT THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING RS. 4,35,320 / - WHICH WAS ADDED TO THE INCOME OF THE ASSESSEE ON ACCOUNT OF AS UNEXPLAINED LIABILITIES. (III) THAT THE COMMISSIONER OF INCOME TAX(APPEAL) HAS ERRED IN LAW AND ON FACTS IN RELYING ON THE SUBMISSIONS FILED BY THE ASSESSEE WHICH WERE INADEQUATE, INCOMPLETE, NOT GENUINE, NOT RELIABLE AND ALREADY REJECTED BY AO DURING THE ASSESSMENT STAGE. (IV) (A) THE ORDER OF THE CIT(APPEALS) IS ERRONEOUS AND NOT TENABLE IN LAW AND ON FACTS. 6. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN CROSS OBJECTION FOR THE ASSESSMENT YEAR 2008 - 09 : - 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN FRAMING IMPUGNED REASSESSMENT ORDER AND THAT TOO WITHOUT ASSUMING JURISDICTION AS PER LAW AND WITHOUT COMPLYING THE MANDATORY CONDITI ONS OF SECTION 147 TO 151 OF THE ACT. 2. T HAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, ACTION OF LD. CIT(A) IN CONFIRMING THE ACTION OF LD. AO IN FRAMING IMPUGNED REASSESSMENT ORDER U/S 147/143(3) IS BEYOND JURISDICTION, BAD IN LAW AND AGAINST THE FACT S AND CIRCUMSTANCES OF THE CASE. 3. IN ANY VIEW OF THE MATTER AND IN ANY CASE, IMPUGNED ASSESSMENT ORDER COULD NOT HAVE BEEN PASSED UNDER THE LAW, MORE SO WHEN ORIGINAL ASSESSMENT WAS ANNULLED. 7. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL FOR T HE ASSESSMENT YEAR 2009 - 10: - (I) THAT THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING RS. 12,10,33,910 / - WHICH WAS ADDED TO THE INCOME OF THE ASSESSEE ON ACCOUNT OF AS UNEXPLAINED DEPOSITS. (II) THAT THE COMMI SSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING RS. 3,10,500 / - WHICH WAS ADDED TO THE INCOME OF THE ASSESSEE ON ACCOUNT OF AS UNEXPLAINED PROFIT ON SALE INVESTMENT . (III) THAT THE COMMISSIONER OF INCOME TAX(APPEAL) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN NOT DISCUSSING THE ISSUE OF UNEXPLAINED PROFIT ON SALE INVESTMENT RAISED BY THE AO IN HIS ASSESSMENT ORDER ON DCIT VS GREEN MARK INFRA LTD, ITA NO. 6206 TO 6208/DEL/2015 & CO NO. 398 TO 400/DEL/2015 (ASSESSMENT YEAR: 2007 - 08 TO 2009 - 10) PAGE | 4 BASIS OF WHICH ADDITION OF RS. 3,10,500/ - WAS ADDED TO TH E INCOME OF THE ASSESSEE. (IV) THAT THE COMMISSIONER OF INCOME TAX (APPEAL) HAS ERRED IN LAW AND ON FACTS IN RELYING ON THE SUBMISSIONS FILED BY THE ASSESSEE WHICH WERE INADEQUATE, INCOMPLETE, NOT GENUINE, NOT RELIABLE AND ALREADY REJECTED BY AO DURING TH E ASSESSMENT STAGE. (V) (A) THE ORDER OF THE CIT(APPEALS) IS ERRONEOUS AND NOT TENABLE IN LAW AND ON FACTS. 8. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN CROSS OBJECTION FOR THE ASSESSMENT YEAR 2009 - 10 : - 1. THAT HAVING REGARD TO THE FACTS AND CIRCU MSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN FRAMING IMPUGNED REASSESSMENT ORDER AND THAT TOO WITHOUT ASSUMING JURISDICTION AS PER LAW AND WITHOUT COMPLYING THE MANDATORY CONDITIONS OF SECTION 147 TO 151 OF THE ACT. 2. T HAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, ACTION OF LD. CIT(A) IN CONFIRMING THE ACTION OF LD. AO IN FRAMING IMPUGNED REASSESSMENT ORDER U/S 147/143(3) IS BEYOND JURISDICTION, BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. IN ANY VIEW OF THE MATTER AND IN ANY CASE, IMPUGNED ASSESSMENT ORDER COULD NOT HAVE BEEN PASSED UNDER THE LAW, MORE SO WHEN ORIGINAL ASSESSMENT WAS ANNULLED. 9. WE BRIEFLY STATE THE FACTS FOR AY 2007 - 08. THE ASSESSEE IS A COMPANY WHO FILED ITS RETURN OF INCOME ON 17.03.2008 DECLARING INCOME OF RS. 5130/ - . THE ASSESSMENT U/S 143(3) WAS MADE ON AN INCOME OF RS. 41107800/ - WHEREIN, PROTECTIVE ADDITION OF RS. 39332500/ - WAS MADE ON ACCOUNT OF UNEXPLAINED DEPOSITS AND RS. 1535000/ - WAS MADE ON ACCOU NT OF UNEXPLAINED LIABILITIES. THE ASSESSEE PREFERRED AN APPLICATION U/S 264 BEFORE THE LD CIT(A) WHO PASSED AN ORDER ON 20.03.201 4. ACCORDING TO THAT ORDER THE ASSESSMENT ORDER U/S 153C OF THE ACT WERE CANCELLED AS THERE WAS NO PROPER ASSUMPTION OF JURISDICTION. HENCE, THE ASSESSMENT WAS HELD TO BE NULL AND VOID. CONSEQUENTLY, REOPENING U/S 147 OF THE ACT WAS INITIATED AFTER OBTAINING APPROVAL OF LD CIT U/S 151 OF THE ACT. THE LD ASSESSING OFFICER RECORDED THE SATISFACTION THAT THE ASSESSEE HAS MEREL Y CHALLENGED THE APPLICATION OF SECTION 153C BUT HAS NOT CHALLENGED THE MERITS OF THE ADDITION , HE REOPENED IT. HE FURTHER NOTED THAT ASSESSEE IS DCIT VS GREEN MARK INFRA LTD, ITA NO. 6206 TO 6208/DEL/2015 & CO NO. 398 TO 400/DEL/2015 (ASSESSMENT YEAR: 2007 - 08 TO 2009 - 10) PAGE | 5 ONE OF THE INTERMEDIARY COMPANIES USED BY SHRI ASHEEM GUPTA , WHO IS AN PROVIDING ACCOMMODATION ENTRY PROVIDER AND WHO HAS ADMITTED THE FACT OF ACCOMMODATION ENTRIES. HE FURTHER RECORDED THAT THERE WAS UNEXPLAINED DEPOSIT OF RS. 39332500/ - IN THE BANK ACCOUNTS FOR WHICH THERE IS NO EXPLANATION AVAILABLE HENCE, THEY ARE TO BE TREATED AS ESCAPED INCOME IN THE HANDS O F THE ASSESSEE. NOTICE U/S 148 OF THE ACT WAS ISSUED ON 27.03.2014 AND SERVED ON 28.03.2014. THE REASONS WERE PROVIDED TO THE ASSESSEE AND ASSESSEE SUBMITTED THAT THE ORIGINAL RETURN FILED MAY BE TREATED AS RETURN IN RESPONSE TO NOTICE U/S 148 OF THE ACT. MR. ASHEEM GUPTA WHO IS AN ACCOMMODATION ENTRY PROVIDER HIMSELF APPEARED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE LD AO DEALT WITH THE ISSUE VIDE PARA NO. 4.1 TO 8 AS UNDER: - 4.1 THE ASSESSEE COMPANY IS ENGAGED IN PROVIDING ACCOMMODATION ENTRIES T O THE COMPANIES WHICH ARE IN NEED OF THE ACCOMMODATION ENTRIES. IT IS WORTHWHILE TO MENTION HERE THAT IN HIS STATEMENT RECORDED ON OATH U/S 133(D) ON 26.03.2010 SHRI ASEEM KUMAR GUPTA HAS ADMITTED THAT HE IS DIRECTOR IN EIGHT SUCH COMPANIES WHICH ARE ENGAG ED IN PROVIDING THE ACCOMMODATION ENTRIES; NAMELY M/S JIWAN REALTORS LTD, M/S. GANPATI FINCAP SERVICES PVT LTD., M/S SAM PORTFOLIO PVT. LTD., MODERATE CREDIT CORPORATIONS PVT. LTD., M/S CHOTTI LEASING & FINANCE PVT. LTD., M/S S.G. PORTFOLIO PVT. LTD., M/S SUSHRE SECURITIES PVT. LTD AND M/S SHREY INFRADEVELOPERS PVT. LTD. THE ASSESSEE COMPANY IS ONE OF THEM. 5. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE COMPANY HAS FURNISHED THE COPY PROFIT & LOSS ACCOUNT, BALANCE SHEET AND SCHEDULES FORMING PARTS OF BALANCE SHEET ONLY. BUT NO BOOKS OF ACCOUNT WAS PRODUCED FOR EXAMINATION INSPITE OF THE REPEATED REQUESTS. VIDE REPLY DATED 15.12.2014 IT HAS BEEN CONTENDED THAT 'ONCE AN AMOUNT HAS BEEN ADDED TO THE INCOME OF ONE ASSESSEE IN THE CHAIN OF TRANSACTIONS, NO FURTHER ADDITION ON THE SAME CAN BE MADE IN THE HANDS 6F SUBSEQUENT ASSESSEE IN THE - CHAIN. SINCE CASH DEPOSIT HAS BEEN TAXED IN THE HANDS OF MR. MANOJ KUMAR AND MR. VIRENDER RAM BY WAY OF SUBSTANTIVE ADDITION, THE TAXED AMOUNT, WHEN TRANSFERRED TO ANOTHER COMPANY SHOULD BE TREATED AS EXPLAINED CREDIT. THE TRANSFER/INTRODUCTION OF THIS AMOUNT SHOULD ALSO BE TREATED AS EXPLAINED.' ALONGWITH EXPLANATION THE ORDER PASSED IN THE CASE OF SHRI MANOJ KUMAR BY THE COMMISSIONER OF INCOME TAX, APPEAL - XXXII, NEW DELHI HAS BEEN FILED. DCIT VS GREEN MARK INFRA LTD, ITA NO. 6206 TO 6208/DEL/2015 & CO NO. 398 TO 400/DEL/2015 (ASSESSMENT YEAR: 2007 - 08 TO 2009 - 10) PAGE | 6 6. I HAVE THOROUGHLY CONSIDERED THE REPLY FURNISHED, APPELLATE ORDER PASSED AND THE OTHER PAPERS FURNISHED BY THE COMPANY. BUT FIND NO FORCE BECAUSE OF THE FACT THAT IN THE CASE OF SHRI MANOJ KUMAR ADDITION WAS MADE PROTECTIVELY WHICH WAS THE RIGHT STEP AS THE ACCOMMODATION ENTRIES WERE PROVIDED BY BY SHRI MANOJ KUMAR WHO WORKS WITH SHRI ASEEM KUMAR GUPTA OR ON HIS BEHALF AS HAS BEEN ADMITTED BY SHRI ASEEM KUMAR GUPTA HIMSELF IN HIS STATEMENT RECORDED IN THE CASE OF SHRI MANOJ KUMAR VIDE QU ESTION NO. 5. ON THIS POINT THE ASSESSEE HAS MIS - PRESENTED THE FACTS AS ASSESSMENT IN CASE OF SHRI MANOJ KUMAR WAS PROTECTIVELY MADE WHEREAS THE ASSESSEE HAS CLAIMED THAT IT WAS MADE SUBSTANTIVELY. ALSO 1ST APPEAL HAS BEEN DISMISSED BY THE LD. CIT(A) IN TH E CASE OF SHRI MANOJ KUMAR. BUT HERE THE ADDITION WILL BE MADE SUBSTANTIALLY AS THE ASSESSEE COMPANY HAS REFLECTED THE TRANSACTIONS IN ITS BOOKS' OF ACCOUNT AS RECEIPT BUT FAILED TO EXPLAIN/JUSTIFY THE NATURE AND SOURCE OF THE DEPOSIT OF THE AMOUNTS. UNEXPLAINED DEPOSITS 7. DURING THE COURSE OF ASSESSMENT PROCEEDING ASSESSEE HAS FURNISHED BANK RECONCILIATION STATEMENT WHICH TALLIED AT RS. 3,03,87,500/ - WHEREAS AS PER BANK STATEMENT TOTAL DEPOSIT REFLECTS AT RS. 3,95,32,500/ - . THUS, IT IS SEEN THAT TH E RECONCILIATION STATEMENT FURNISHED BY THE ASSESSEE DO NOT TALLY WITH THAT OF BANK STATEMENT. THIS FACT LEADS TO THE IMPRESSION THAT THE ACCOUNTS SUBMITTED BY THE ASSESSEE COMPANY IS FABRICATED ONE AND CANNOT BE RELIED UPON. THE ASSESSEE WAS REQUIRED TO E XPLAIN THE NATURE AND SOURCE OF THE DEPOSITS REFLECTING IN THE BANK ACCOUNT WITH NECESSARY DOCUMENTARY EVIDENCES TO PROVE THE IDENTITY, CAPACITY AND GENUINENESS OF THE PARTIES FROM WHOM THE MONEY WAS RECEIPT AND DEPOSITED IN THE BANK. BUT ASSESSEE FAILED T O GIVE AN IOTA OF EVIDENCE IN THE MATTER. THEREFORE, I HOLD THAT THESE DEPOSITS ARE UNEXPLAINED MONEY OF THE COMPANY AND AS SUCH THE SAME WILL ADDED TOWARDS INCOME OF THE COMPANY. THIS ADDITION WILL COVER THE UNEXPLAINED CASH CREDIT FOUND/REFLECTED IN THE FINANCIAL STATEMENT. UNEXPLAINED OTHER CURRENT LIABILITIES: - 8. FURTHER, ON PERUSAL OF THE BALANCE SHEET IT IS FOUND THAT IN SCHEDULE - VI THE ASSESSEE HAS SHOWN AN AMOUNT OF RS.15,35,000/ - UNDER THE HEAD OTHER CURRENT LIABILITIES. THE ASSESSEE WAS REQUIRED TO EXPLAIN THE NATURE AND SOURCE OF THIS LIABILITY BUT INSPITE OF THE REPEATED REQUEST ASSESSEE FAILED TO ESTABLISH THE IDENTITY AND GENUINENESS OF THE PERSONS AND PURPOSE. THEREFORE, THIS LIABILITIES TO THE TUNE OF RS. 15,35,000/ - IS BEING DISALLOWED TO BE ADDED AS INCOME OF THE COMPANY. DCIT VS GREEN MARK INFRA LTD, ITA NO. 6206 TO 6208/DEL/2015 & CO NO. 398 TO 400/DEL/2015 (ASSESSMENT YEAR: 2007 - 08 TO 2009 - 10) PAGE | 7 10. CONSEQUENTLY THE ORDER U/S 147 READ WITH SECTION 143(3) OF THE ACT WAS PASSED ON 02.03.2015 , WHEREIN, THE TOTAL INCOME OF THE ASSESSEE WAS ASSESSED AT RS. 41072610/ - AGAINST THE RETURNED INCOME OF RS. 5110/ - . THE ASSESSEE PREFERRED APPEAL BEFORE THE LD CIT(A) CHALLENGING THE RE OPENING PROCEEDINGS AS WELL AS THE QUANTUM ADDITION. BEFORE THE LD CIT(A) SHRI ASHEEM GUPTA, CA APPEARED. 11. THE LD CIT(A) DECIDED THE ISSUE OF THE REOPENING OF THE ASSESSMENT VIDE PARA NO. 5 AN 6 OF THE APPELLATE ORDER AS UNDER: - 5. GROUND NO. 1 IS AGAINST THAT ID ASSESSING OFFICER WITHOUT APPRECIATING THE CORRECT FACTS OF THE CASE IS NOT JUSTIFIED IN LAW AND FACTS AND CIRCUMSTANCES OF THE CASE IN REOPENING THE ASSESSMENTS UNDER SECTION 147 OF THE I.T. ACT, WITHOUT COMPLYING WITH THE PROVISION OF SECTION 14 7 TO 151 OF THE I.T. ACT. 5.1 THE APPELLANT DURING THE COURSE OF APPEAL PROCEEDINGS SUBMITTED AS GROUND NO. 1 OF APPEAL RELATES THAT THE LD A.O. WITHOUT APPRECIATING THE CORRECT FACTS OF THE CASE IS NOT JUSTIFIED IN LAW AND CIRCUMSTANCES OF THE CASE IN REOPENING OF ASSESSMENT U/S 147 OF THE I.T. ACT WITHOUT COMPLYING THE PROVISIONS OF SECTION 147 TO 151 OF THE I.T. ACT 1961. A.O. HAS STATED IN HIS IMPUGNED ORDER THAT AFTER RECORDING REASONS PROCEEDINGS U/S 147 WERE TAKEN IN HAND AFTER RECEIPT OF THE AP PROVAL OF THE COMMISSIONER OF INCOME TAX, CENTRAL - 11, NEW DELHI ACCORDED ON 26.03.2014 U/S 151. WHILE SUBMITTING THE PROPOSAL FOR APPROVAL FOR INITIATION OF PROCEEDING U/S 147 THE A.O. RECORDED HIS SATISFACTION THAT INCOME CHARGEABLE TO TAX HAS ESCAPED THE ASSESSMENT AS UNDER: 'THE ASSESSMENT OF THE YEAR UNDER CONSIDERATION WAS MADE U/S 143(3) R.W.S. 153C ON 27.12.2011 AT A TOTAL INCOME OF RS. 4,11,07,800/ - AS AGAINST RETURNED INCOME OF RS. 5,130/. AGGRIEVED BY THE ABOVE ORDER, THE ASSESSEE FILED REVISION A PPLICATION U/S 264 OF THE INCOME TAX ACT, 1961 BEFORE CIT CENTRAL - II, NEW DELHI. THE ASSESSEE CHALLENGED ASSUMPTION OF JURISDICTION U/S 153C ON THE GROUNDS, THAT THE SATISFACTION ARRIVED BY THE A.O. IS NOT BASED ON DOCUMENTS FROM THE PREMISES OF OTHER PERS ON IN WHOM ACTION U/S 132 IS INITIATED. THE CIT, NEW DELHI ANNULLED THE ASSESSMENT ORDER ON THE GROUND OF INCORRECT ASSUMPTION OF JURISDICTION U/S 153C, DCIT VS GREEN MARK INFRA LTD, ITA NO. 6206 TO 6208/DEL/2015 & CO NO. 398 TO 400/DEL/2015 (ASSESSMENT YEAR: 2007 - 08 TO 2009 - 10) PAGE | 8 THE LD. CIT (CENTRAL) - L 1, HAS NOT ADJUDICATED THE GROUND ON WHICH THE ADDITIONS WERE MADE. THOUGH, THE ASSESSEE CHALLENGED THE ADDITIONS BUT NO SUBMISSIONS WERE FILED BEFORE THE (CENTRAL) - 11, NEW DELHI AS TO WHY ADDITIONS BE DELETED. IN VIEW OF THE FACT, WHEREAS NO N IS MADE BY THE ASSESSEE IN RESPECT OF THE MERITS ON WHICH ADDITIONS WERE MADE, IT SHOWS TH AT THE ASSESSEE HAD NOTHING TO SAY ON THESE GROUNDS. WITH REGARD TO ABOVE GROUND IT IS MOST HUMBLY SUBMITTED THAT REASONS TO FORM THE BELIEF THAT THE INCOME HAD ESCAPED ASSESSMENT BY THE A.O. ARE NOT PROPER AND ERRONEOUS. THE ASSESSEE DISCLOSED ALL THE M ATERIAL FACTS TRULY DURING THE ASSESSMENT MADE U/S 143(3) R.W.S. 153C OF THE I.T. ACT 1961. THE ASSESSMENT MADE U/S 143(3) R.W.S. 153C WAS QUASHED BY THE CIT CENTRAL - II ,NEW DELHI ON THE FACT THAT THE AO HAD NO JURISDICTION U/S 153C . THE A.O STATED IN T HE REASONS FOR OPENING RE - ASSESSMENT U/S 147 THAT THE ASSESSEE CHALLENGED ASSUMPTION OF JURISDICTION U/S 153C ON THE GROUNDS, THAT THE SATISFACTION ARRIVED BY THE A.O. IS NOT BASED ON DOCUMENTS FROM THE PREMISES OF OTHER PERSON IN WHOM ACTION U/S 132 IS IN ITIATED, WHEREAS IT IS EVIDENT ENOUGH FROM THE ORDER PASSED BY THE CIT CENTRAL - II THAT THE ASSESSEE HAS CHALLENGED THE ASSESSMENT PROCEEDINGS U/S 143(3) R.W.S. 153C ON VARIOUS GROUNDS OF PRINCIPLES OF NATURAL JUSTICE, EQUITY AND FAIR PLAY, TEMPERING OF AS SESSMENT RECORDS BY THE ASSESSING OFFICER. A.O. HAS NO FRESH TANGIBLE MATERIAL OTHER THAN THE ASSESSMENT PROCEEDINGS HELD U/S 143(3) R.W.S. 153C WHICH WERE QUASHED ON THE TECHNICAL AND FACTUAL GROUNDS BY THE CIT CENTRAL - II. IMPORTANCE OF FRESH INTANGIBLE M ATERIAL FOR RE - ASSESSMENT U/S 147 OF THE I.T. ACT 1961 HAS BEEN EMPHASIZED BY BOMBAY HIGH COUT IN THE CASE OF CIT. V/S AMBITABH BACHAN WHEREBY IT WAS HELD THAT REOPENING IN THE ABSENCE OF FRESH TANGIBLE MATERIAL IS INVALID . FOR AY 2002 - 03, THE ASSESSEE FILED A ROI DECLARING INCOME OF RS. 14.99 CRORES. A REVISED ROI WAS THEN FILED CLAIMING 30% ADHOC EXPENSES (RS. 6.31 CRORES) AND OFFERING INCOME OF RS. 8.11 CRORES. WHEN THE AO ASKED THE ASSESSEE TO SUBSTANTIATE THE EXPENSES, HE WITHDREW THE CLAIM. THE AO PASSED A S. 143(3) ASSESSMENT DETERMINING THE INCOME AT RS.56.41 CRORES. THE AO THEN ISSUED NOTICE UNDER SECTION 148 NOTICE (WITHIN 4 YEARS) TO REOPEN THE ASSESSMENT ON THE GROUND THAT THE CLAIM FOR EXPENSES (WHICH WAS WITHDRAWN) HAD TO BE ASSESSED AS UNE XPLAINED EXPENDITURE U/S 69. THE CIT (A) & TRIBUNAL STRUCK DOWN THE REASSESSMENT ORDER ON THE GROUND THAT THE MATERIAL ON THE BASIS OF WHICH DCIT VS GREEN MARK INFRA LTD, ITA NO. 6206 TO 6208/DEL/2015 & CO NO. 398 TO 400/DEL/2015 (ASSESSMENT YEAR: 2007 - 08 TO 2009 - 10) PAGE | 9 THE ASSESSMENT WAS SOUGHT TO BE REOPENED WAS ALWAYS AVAILABLE AT THE TIME OF THE ORIGINAL PROCEEDING AND THERE WAS NO NEW MATERIAL. ON APPEAL BY THE DEPARTMENT TO THE HIGH COURT, HELD DISMISSING THE APPEAL. THE REOPENING ON THE BASIS THAT THE SAID ADHOC EXPENDITURE CONSTITUTED UNEXPLAINED EXPENDITURE U/S 69 WAS BASED ON THE SAME MATERIAL. THERE WAS NO FRESH TANGIBLE MATERIAL BEFORE THE AO TO REACH A REASONABLE BELIEF THAT THE INCOME LIABLE TO TAX HAS ESCAPED ASSESSMENT. IT IS A SETTLED POSITION OF LAW THAT REVIEW UNDER THE GARB OF REASSESSMENT IS NOT PERMISSIBLE. HONBLE DELHI HIGH COURT IN THE CASE OF CIT V. KAMDHENU STEEL & ALLOYS LTD. (2012) 248 CTR 33 (DELHI)FHIGH COURT) HAS HELD THAT REASSESSMENT MERELY ON THE BASIS OF INVESTIGATION WING AND THE NOTICE ISSUED AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR BY THE ASSESSING OFFIC ER MERELY ACTING MECHANICALLY ON THE INFORMATION SUPPLIED BY THE INVESTIGATION WING ABOUT THE ACCOMMODATION ENTRIES PROVIDED BY THE ASSESSEE TO CERTAIN ENTITIES WITHOUT APPLYING HIS OWN MIND WAS LED TO BE NOT JUSTIFIED. IN THE CASE OF BALAKRISHNA HIRALAL W ANI VS. ITO (2010) 321 ITR 519 (BOM. IT WAS HELD THAT THERE WAS NO TANGIBLE MATERIAL BEFORE THE ASSESSING OFFICER TO FORM THE BELIEF THAT THE INCOME HAD ESCAPED ASSESSMENT AND THEREFORE, REOPENING OF ASSESSMENT UNDER SECTION 147 WAS NOT VALID. IN THE CASE OF NYK LINE (INDIA) LTD. V. DY. CIT (2012) BOMBAY HIGH COURT HAS HELD THAT WHERE THE ASSESSEE HAD MADE FULL AND TRUE DISCLOSURE AND ALSO THERE WAS A NOTE BY THE AUDITOR IN HIS AUDIT REPORT, REOPENING OF ASSESSMENT BEYOND THE PERIOD OF FOUR YEARS WAS HELD T O BE NOT VALID NOTWITHSTANDING THE FACT THAT FOR SUBSEQUENT ASSESSMENT YEAR A SIMILAR ADDITION HAD BE MADE BY THE ASSESSING OFFICER. ASSESSMENT CANNOT BE REOPENED ON THE BASIS OF A MERE CHANGE OF OPINION. THERE SHOULD BE SOME TANGIBLE MATERIAL WITH THE ASS ESSING OFFICER TO COME TO THE CONCLUSION THAT THERE IS AN ESCAPEMENT OF INCOME. A MERE CHANGE OF OPINION ON THE PART OF THE ASSESSING OFFICER IN THE COURSE OF ASSESSMENT FOR A SUBSEQUENT YEAR CANNOT JUSTIFY THE REOPENING OF AN ASSESSMENT. HONBLE DELHI HIG H COURT IN THE CASE OFTECHSPAN INDIA (P) LTD & ANR VS. ITO (2006) 283 ITR 212 (DEL) HAS HELD THAT AN ASST, ORDER PASSED AFTER DETAILED DISCUSSION CANNOT BE REOPENED WITHIN A PERIOD OF 4 YEARS UNLESS THE AO HAS REASON TO BELIEVE THAT THERE IS TO SOME INHERE NT DEFECT IN THE ASSESSMENT. DCIT VS GREEN MARK INFRA LTD, ITA NO. 6206 TO 6208/DEL/2015 & CO NO. 398 TO 400/DEL/2015 (ASSESSMENT YEAR: 2007 - 08 TO 2009 - 10) PAGE | 10 THE A.O. STATED IN HIS IMPUGNED ORDER THAT THE AFTER RECORDING REASONS PROCEEDINGS U/S 147 WERE TAKEN IN HAND AFTER RECEIPT OF THE APPROVAL OF THE COMMISSIONER OF INCOME TAX, CENTRAL - II, NEW DELHI ACCORDED ON 26.03.2014 U/S 15 1 WHEREAS IT IS HUMBLY AND RESPECTFULLY SUBMITTED TO YOUR GOODSELF THAT AS PER SECTION 151 OF I.T. ACT 1961 THE A.O. CAN INITIATE PROCEEDINGS AFTER TAKING APPROVAL FOR JC AND CIT BOTH. BRIEFLY DESCRIPTION OF SECTION 151 OF THE I.T. ACT 1961 IS AS FOLLOWS: SECTION 151 OF THE I.T. ACT 1961 - SANCTIONS FOR ISSUE OF NOTICE U/SL48 UPTO 4 YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR BEYOND 4 YEARS BUT UP TO 6 YEARS FROM THE END OF THE RELEVANT AY IN CASES SUBJECT TO SCRUTINY BY WAY OF ASSESSMENT U/SL43(3 ) OR 147 BY AN AO NOT BELOW THE RANK OF AC/DC . ANY AO BELOW THE RANK OF AC/DC WILL REQUIRE PRIOR APPROVAL OF THE JO BEFORE ISSUING THE NOTICE 1 )SAME APPROVAL, AND 2)NOTICE CAN BE ISSUED ONLY AFTER OBTAINING THE PRIOR APPROVAL OF CCIT OR CIT IN OTHER CASES BY ANY AO BY AN AO NOT BELOW THE RANK OF JC . ANY OFFICER BELOW THE RANK OF JC CAN ISSUE THE NOTICE WITH THE PRIOR APPROVAL OF JC IN THE LIGHT OF THE ABOVE JUDICIAL DECISIONS AND PROVISIONS OF THE SECTION 151 OF THE I. T. ACT 1961, IT IS VEHEMENTLY CONTENDED THAT THE REASONS RECORDED BY THE A.O. FOR THE BELIEF THAT INCOME HAS ESCAPED ASSESSMENT AND APPROVAL TAKEN U/S 151 ON 26.03.2014 FOR THE ISSUE OF NOTICE U/S 148 ARE VOID AND CONSEQUENTIAL ASSESSMENT PROCEEDINGS ARE VOID - AB - INTIO. FINDING 6. THE LEGALITY OF THIS GROUND IS NOT QUESTIONED AS I FIND NO CONSIDERATION IN THIS GROUND HENCE, REJECT THIS GROUND OF APPEAL. 12. ON THE ISSUE OF THE MERITS OF THE ADDITION , THE LD CIT(A) DELETED THE SAME VIDE PARA NO. 9 TO 12 OF THE ORDER AS UNDER: - DCIT VS GREEN MARK INFRA LTD, ITA NO. 6206 TO 6208/DEL/2015 & CO NO. 398 TO 400/DEL/2015 (ASSESSMENT YEAR: 2007 - 08 TO 2009 - 10) PAGE | 11 9. GROUND NO. 3 OF APPEAL IS ADDITION OF RS. 3,95,32,500/ - UNDER SECTION 68 OF THE I.T. ACT ON ACCOUNT OF ALLEGED UNEXPLAINED OTHER DEPOSITS IN THE BANK STATEMENTS OF THE APPELLANT COMPANY. 9.1 THE LD. AO HAS MADE ADDITION AND THE VIEW OF THE AO IS AS FOLLOWS: TH E ASSESSEE DURING THE APPELLATE PROCEEDINGS, SUBMITTED THE SUBMISSIONS AS FOLLOWS: GROUND NO. 3 OF APPEAL RELATES TO THE ADDITION OF RS. 3,95,32,500/ - U/S 68 ON ACCOUNT OF UNEXPLAINED DEPOSITS. THE APPELLANT SUBMITS THAT THE ADDITIONS HAVE BEEN MADE BY THE LD AO WITHOUT APPLICATION OF MIND AND WITHOUT MAKING THE PROPER VERIFICATIONS. THE LD AO WITHOUT APPRECIATING THE CORRECT FACTS OF THE CASE HAS SIMPLY COPIED PASTE THE ASSESSMENT ORDER PASSED U/S 143(3) RWS 153C ON 27/12/2011 WHEREBY THE SAME HAS BEEN ANN ULLED BY THE CIT CENTRAL - II IN THE ORDER PASSED U/S 264 OF THE ACT ON 20.03.2014. THE LD AO IN HIS ASSESSMENT ORDER STATED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE COMPANY HAS FURNISHED THE COPY OF PROFIT LOSS ACCOUNT, BALANCE SHEET AND SCHEDU LES FORMING PARTS OF BALANCE SHEET ONLY. BUT NO BOOKS OF ACCOUNT WAS PRODUCED FOR EXAMINATION INSPITE OF THE REPEATED REQUESTS WHEREAS THE ASSESSEE COMPANY HAS PROVIDED THE BOOKS OF ACCOUNTS FOR A. Y. 2007 - 2008 IN FORM TALLY DATA AS MAINTAINED BY THE COMP ANY VIDE REPLY DATED 30/10/2014 SAME CAN BE VERIFIED FROM THE SUBMISSIONS FILED BY THE ASSESSEE COMPANY. 9.2 ADVERSE OBSERVATIONS OF LD. A.O. ARE MET AS UNDER: - 1. THE LD AO STATED IN HIS ORDER STATED THAT NOTICE U/S 148 DATED 27.03.2014 WAS ISSUED AND D ULY SERVED ON 28.03.2014. THE ASSESSEE VIDE APPLICATION DATED 09.04.2014 REQUESTED FOR COPY OF REASONS ALONGWITH APPROVAL FOR INITIATION OF PROCEEDING WHICH WAS PROVIDED TO IT. IN REPLY TO THE NOTICE U/S 148 ISSUED ASSESSEE HAS GIVEN IN WRITING THAT ORIGIN AL RETURN FILED MAY KINDLY BE TREATED AS FILED IN REPLY TO THE NOTICE U/S 148. IN REPLY THEREOF SHRI ASEEM GUPTA F.C.A. APPEARED FROM TIME TO TIME WITH WHOM CASE DISCUSSED. DURING THE COURSE OF ASSESSMENT PROCEEDING ASSESSEE HAS FURNISH BANK RECONCILIATION STATEMENT WHICH SHOWS CREDIT ENTRY OF RS.3,03,87,500/ - . WHEREAS AS PER BANK STATEMENT TOTAL DEPOSIT REFLECTS RS. 3,95,32,500/ - . THUS IT IS SEEN THAT THE RECONCILIATION STATEMENT FILED BY THE ASSESSEE DO NOT TALLY WITH DCIT VS GREEN MARK INFRA LTD, ITA NO. 6206 TO 6208/DEL/2015 & CO NO. 398 TO 400/DEL/2015 (ASSESSMENT YEAR: 2007 - 08 TO 2009 - 10) PAGE | 12 THAT OF BANK STATEMENTS. THIS FACT LE ADS TO THE IMPRESSION THAT THE ACCOUNTS SUBMITTED BY THE ASSESSEE COMPANY IS FABRICATED ONE AND CANNOT BE RELIED UPON. THE ID AO HAS FAILED TO APPRECIATE THE FACT THAT THE ASSEESSEE COMPANY HAS VIDE ITS REPLY DATED 05/12/2014 HAS PROVIDED THE LD AO THE S UMMARY AND DETAILED NARRATIONS OF ALL DEBIT AND CREDIT ENTRIES OF BANK ACCOUNTS .THE SUMMARY OF DETAILED BANK NARRATIONS SUBMITTED TO THE LD AO TOTALED TO 3,95,23,500/ - AND DETAILED NARRATION SHEET TOTALED TO 3,03,87,500/ - . THE LD AO NEVER PURSUED THE SUMM ARY AND DETAILED NARRATIONS FILED WITH HIM AND PASSED THE ORDER IN HURRY WITHOUT MAKING FURTHER INQUIRY AND VERIFYING THE CORRECT FACTS OF THE CASE AND FAILED TO APPRECIATE THE FACT THE DIFFERENCE BETWEEN THE BANK STATEMENTS TOTAL AND BANK NARRATION SHEET TOTAL IS BECAUSE OF CHEQUE RETURNED AMOUNTING TO RS.91,45,000/ - WHICH IS CLEARLY MENTIONED IN THE BANK NARRATIONS SUMMARY SHEET SUBMITTED ALONG WITH THE DETAILED NARRATION SHEET AND NO OPPORTUNITY OF BEING HEARD WAS PROVIDED TO THE ASSESSEE BEFORE MAKING T HE VOLUMINOUS ADDITIONS. THE LD. A.O. HAS STATED IN HIS IMPUGNED ORDER THE THE ASSESSEE WAS REQUIRED TO EXPLAIN THE NATURE AND SOURCE OF THE DEPOSITS REFLECTING IN THE BANK ACCOUNT WITH NECESSARY DOCUMENTARY EVIDENCES TO PROVE THE IDENTITY, CAPACITY AND G ENUINENESS OF THE PARTIES FROM WHOM THE MONEY WAS RECEIPT AND DEPOSITED IN THE BANK BUT THE ASSESSEE FAILED TO GIVE AN IOTA OF EVIDENCES, THEREFORE, THE SUM OF RS.3,95,32,500/ - IS TREATED AS UNEXPLAINED DEPOSIT AND WILL BE ADDED TOWARDS INCOME OF THE COMPA NY. THIS ADDITION WILL COVER THE UNEXPLAINED CASH CREDIT FOUND/ REFLECTED IN THE FINANCIAL STATEMENT AS WELL AS OTHER POSSIBLE LEAKAGES. IN REPLY, IT IS SUBMITTED THAT THE ALLEGATIONS MADE BY LD. A.O. ARE NOT CORRECT WHICH IS CLEARLY EVIDENT FROM THE SUBM ISSIONS MADE BY THE ASSESSEE TO THE A.O. ON VARIOUS DATES. WHERE THE ASSESSEE HAS PROVIDED ALL THE DOCUMENTS CALLED FOR ALONG WITH CONFIRMATIONS AND PAN NUMBER, ADDRESS AND OTHER DETAILS OF THE PARTIES FROM WHOM THE CREDIT IN BANK ACCOUNTS HAS BEEN RECEIVE D BY THE ASSESSEE DURING THE YEAR. ALL THE PERSONS/ PARTIES FROM WHOM THE ASSESSEE HAS RECEIVED CREDITS IN BANK ARE BEING ASSESSED TO TAX AND PAN AND OTHER DETAILS WERE BEING PROVIDE TO THE LD. A.O. BUT NO ACCEPTANCE OF SAME WAS MADE BY THE LD. A.O. ACCORD ING TO SECTION 68 OF INCOME TAX ACT 1961, WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF AN ASSESSEE MAINTAINED FOR ANY PREVIOUS YEAR, AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE OF THE SAME OR THE EXPLANATION DCIT VS GREEN MARK INFRA LTD, ITA NO. 6206 TO 6208/DEL/2015 & CO NO. 398 TO 400/DEL/2015 (ASSESSMENT YEAR: 2007 - 08 TO 2009 - 10) PAGE | 13 OFFERED BY HIM IS NOT SATISFACTORY IN THE OPINION OF A.O., THE SUM SO CREDITED MAY BE CHARGED TO INCOME TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR. THE BASIC PRECONDITION FOR THE SECTION 68 IS THAT THE ASSESSEE SHOULD FILE A VALID CONFIRMATION. VALID CONFIRMATION H AS NO SPECIFIC FORMAT BUT IT MUST CONTAIN NAME, COMPLETE ADDRESS OF THE LENDER. IT IS BETTER IF PAN OF THE LENDER IS ALSO OBTAINED AS, IF NO PAN GIVEN THEN AMBIT OF DOUBT IS FAR MORE FOR THE AO. WITH THE CONFIRMATION THE AO MUST INSIST ON SOME IDENTITY PRO OF LIKE COPY OF DRIVING LICENSE, COPY OF PASSPORT, COPY OF RATION CARD OR ELECTION ID CARD ETC. THE CONFIRMATION SO FILED MUST INDICATE COMPLETE DETAILS OF TRANSACTIONS (LIKE MODE - CASH OR CHEQUE, WITH NUMBER DATE OF CHEQUE WITH BANK DETAILS). THE AO HAVE RIGHT TO DEMAND THE COPY OF BANK ACCOUNT OF THE LENDER EVIDENCING SUCH TRANSACTIONS AND THE SAME NEEDS TO BE FILED. IN CASE TRANSACTION IS IN CASH THEN AO MUST DEMAND CASH FLOW STATEMENT OF THE LENDER, PREFERABLY CONTAINING DETAILS OF OPENING BALANCE AND I TS SOURCE THEREOF. AS FAR AS THE CREDITWORTHINESS OR FINANCIAL STRENGTH OF THE CREDITOR/SUBSCRIBER IS CONCERNED, THAT CAN BE PROVED BY PRODUCING THE BANK STATEMENT OF THE CREDITORS/SUBSCRIBERS SHOWING THAT IT HAD SUFFICIENT BALANCE IN ITS ACCOUNTS TO ENABL E IT TO SUBSCRIBE TO THE SHARE CAPITAL. ONCE THESE DOCUMENTS ARE PRODUCED, THE ASSESSEE WOULD HAVE SATISFACTORILY DISCHARGED THE ONUS CAST UPON HIM. THEREAFTER, IT IS FOR THE ASSESSING OFFICER TO SCRUTINIZE THE SAME AND IN CASE HE NURTURES ANY DOUBT ABOUT THE VERACITY OF THESE DOCUMENTS, TO PROBE THE MATTER FURTHER. HOWEVER, TO DISCREDIT THE DOCUMENTS PRODUCED BY THE ASSESSEE ON THE AFORESAID ASPECTS, THERE HAS TO BE SOME COGENT REASONS AND MATERIALS FOR THE ASSESSING OFFICER AND HE CANNOT GO INTO THE REALM OF SUSPICION. THUS ELEMENT OF CREDIT WORTHINESS AND SATISFACTION OF AO THEREAFTER IS SUBJECTIVE AND REQUIRES MORE EFFORTS/ INQUIRY ON THE PART OF THE AO TO GIVE A FINDING IN THE ORDER THAT LENDER IS NOT CREDIT WORTHY. IF AO OBSERVE SOME CASH DEPOSIT BEFOR E ISSUE OF CHEQUE THEN SOME NEXUS MUST BE ESTABLISHED BETWEEN THE CASH DEPOSIT AND THE LENDEE. A MERE OBSERVATION THAT CHEQUE IS ISSUED AFTER FEW DAYS OF CASH DEPOSIT AND ADDITIONS MADE ON THIS COUNT WILL NOT SUSTAIN IN THE APPELLATE STAGE. HONBLE GUJAR AT HC HAS EVEN HELD IN 208 TAXMAN 35 THAT EVEN IF THERE IS CASH DCIT VS GREEN MARK INFRA LTD, ITA NO. 6206 TO 6208/DEL/2015 & CO NO. 398 TO 400/DEL/2015 (ASSESSMENT YEAR: 2007 - 08 TO 2009 - 10) PAGE | 14 DEPOSIT BEFORE THE CHEQUE IS ISSUED SAME CANNOT BE HELD HAS INCOME OF LENDEE IF LENDER IS INCOME TAX ASSESSEE. IN ORIENT TRADING CO. LTD. V. COMMISSIONER OF INCOME - TAX (1963) 49 ITR 723 (BOM.) , ONE OF THE QUESTIONS REFERRED TO THE BOMBAY HIGH COURT WAS WHETHER THERE WAS ANY MATERIAL BEFORE THE TRIBUNAL TO HOLD THAT A SUM STANDING IN THE BOOKS OF THE ASSESSEE TO THE CREDIT OF A THIRD PARTY BELONGED TO THE ASSESSEE. THE BOMBAY HIGH COURT DISCUSSE D THE NATURE AND SIGNIFICANCE OF CASH CREDITS IN SUCH CASES AND OBSERVED AS FOLLOWS: WHEN CASH CREDITS APPEAR IN THE ACCOUNTS OF AN ASSESSEE, WHETHER IN HIS OWN NAME OR IN THE NAME OF THIRD PARTIES, THE INCOME - TAX OFFICER IS ENTITLED TO SATISFY HIMSELF AS TO THE TRUE NATURE AND SOURCE OF THE AMOUNTS ENTERED THEREIN, AND IF AFTER INVESTIGATION OR INQUIRY HE IS SATISFIED THAT THERE IS NO SATISFACTORY EXPLANATION AS TO THE SAID ENTRIES, HE WOULD BE ENTITLED TO REGARD THEM AS REPRESENTING THE UNDISCLOSED INCOME OF THE ASSESSEE. WHEN THESE CREDIT ENTRIES STAND IN THE NAME OF THE ASSESSEE HIMSELF, THE BURDEN IS UNDOUBTEDLY ON HIM TO PROVE SATISFACTORILY THE NATURE AND SOURCE OF THESE ENTRIES AND TO SHOW THAT THEY DO NOT CONSTITUTE A PART OF HIS BUSINESS INC OME LIABLE TO TAX. WHEN, HOWEVER, ENTRIES STAND, NOT IN THE ASSESSEES OWN NAME, BUT IN THE NAME OF THIRD PARTIES, THERE HAS BEEN SOME DIVERGENCE OF OPINION EXPRESSED AS TO THE QUESTION OF THE BURDEN OF PROOF. THE INCOME - TAX OFFICERS REJECTION NOT OF THE EXPLANATION OF THE ASSESSEE, BUT OF THE EXPLANATION REGARDING THE SOURCE OF INCOME OF THE DEPOSITORS, CANNOT BY ITSELF LEAD TO ANY INFERENCE REGARDING THE NON - GENUINE OR FICTITIOUS CHARACTER OF THE ENTRIES IN THE ASSESSEES BOOKS OF ACCOUNT. IT HAS BEEN H ELD UNDER NOTED JUDICIAL DECISION THAT ADDITIONS CANNOT BE MADE U/S 68 IF THE ASSESSEE HAS PROVIDED CONFIRMATION, PAN, ADDRESS AND BANK STATEMENTS OF THE PERSONS FROM WHOM THE CREDIT IN THE BANK ACCOUNTS OF THE ASSESSEE HAS RECEIVED. A) IT HAS BEEN HELD I N THE CASE OF SHRI SURESH CHANDRA (INDL.) V. DCIT (ITAT LUCKNOW) APPEAL NO:ITA NO. 184/LKW/2010, ITA NO. 185/LKW/2010, ITA NO. 239/LKW/2010 THAT FURNISHING OF NAME, ADDRESS, PAN AND BANK STATEMENTS ARE SUFFICIENT COMPLIANCE U/ S 68. B) IN THE CASE OF CIT VS. WELLWORTH CONSTRUCTION UDYOG LTD., (DELHI HIGH COURT) THE APEX COURT HAS DECIDED THAT ONCE DCIT VS GREEN MARK INFRA LTD, ITA NO. 6206 TO 6208/DEL/2015 & CO NO. 398 TO 400/DEL/2015 (ASSESSMENT YEAR: 2007 - 08 TO 2009 - 10) PAGE | 15 ASSESSEE HAS PROVED IDENTITY AND CREDITWORTHINESS OF THE SHARE APPLICANTS , ADDITION U/S 68 CANNOT BE SUSTAINED. C) IN THE CASE OF CIT VS. GANGESHWARI METAL (P.) LTD. (DELHI HIGH COURT) THE APEX COURT HAS DECIDED THAT NO ADDITION U/S 68 IF ASSESSEE PROVES THE GENUINENESS OF TRANSACTIONS. INCOME - CASH CREDIT - SHARE APPLICATION MONEY - IF THE SHARE APPLICATION MONEY IS RECEIVED BY THE ASSESSEE COMPANY FROM ALLEGED BOGU S SHAREHOLDERS, WHOSE NAMES ARE GIVEN TO THE AO, THEN THE DEPARTMENT IS FREE TO PROCEED TO REOPEN THEIR INDIVIDUAL ASSESSMENTS IN ACCORDANCE WITH LAW, BUT IT CANNOT BE REGARDED AS UNDISCLOSED INCOME OF ASSESSEE COMPANY IT IS RESPECTFULLY SUBMITTED THAT SLP FILED BY THE DEPARTMENT HAS BEEN DISMISSED BY SUPREME COURT BY PASSING A SPEAKING ORDER IN THE FOLLOWING 5 CASES: 1. 'CIT VS. DIVINE LEASING & FINANCE LTD. (SLP NO. CC 37512008 ARISING OUT OF ITA NO. 53/2005 OF THE HIGH COURT OF DELHI AT NEW DELHI) 2. C IT (KOLKATA) VS MIS SHIPRA RETAILERS (P) LTD. (SLP NO. CC 45112008 ARISING OUT OF ITA NO. 576/ 04 OF THE HIGH COURT OF CALCUTTA) 3. CIT VS MIS. LOVELY EXPORTS (P) LTD. (SLP NO. CC 11993107 ARISING OUT OF/TA NO 953/ 06 OF THE HIGH COURT OF DELHI AT NEW DEL HI), 172 TAXMAN 44 (MAG) 4. CIT VS. MIS. PONDY METAL & ROLLING MILLS (P) LTD. (SLP NO. CC 12860107 ARISING OUT OF 788/ 06OFTHE HIGH COURT OF DELHI AT NEW DELHI) 5. CIT VS. MIS GENERAL EXPORTS CREDITS LTD. (SLP NO.21349107* ARISING OUT OF ITA 880/2006 OF THE HIGH COURT OF DELHI AT NEW DELHI.) 'UPON HEARING COUNSEL THE COURT MADE THE FOLLOWING ORDER: DELAY CONDONED, CAN THE AMOUNT OF SHARE MONEY BE REGARDED AS UNDISCLOSED INCOME UNDER SECTION 68 OF INCOME TAX ACT, 1961? WE FIND NO MERIT IN THIS SPECIAL LEAV E PETITION FOR THE SIMPLE REASON RAVNET SOLUTIONS (P) LTD. A.Y.2007 - 08 APPEAL NO. 233/09 - 10 THAT IF THE SHARE APPLICATION MONEY IS RECEIVED BY THE ASSESSEE COMPANY FROM ALLEGED BOGUS SHAREHOLDERS, WHOSE NAMES ARE GIVEN TO THE AO, THEN THE DEPARTMENT IS FRE E TO PROCEED TO RE - OPEN THEIR INDIVIDUAL ASSESSMENTS IN ACCORDANCE WITH LAW. HENCE, WE FIND NO INFIRMITY WITH THE DCIT VS GREEN MARK INFRA LTD, ITA NO. 6206 TO 6208/DEL/2015 & CO NO. 398 TO 400/DEL/2015 (ASSESSMENT YEAR: 2007 - 08 TO 2009 - 10) PAGE | 16 IMPUGNED JUDGMENT. SUBJECT TO THE ABOVE, SPECIAL LEAVE PETITION IS DISMISSED. ' BHAV SHAKTI STEEL MINES PVT. LTD., VS. CIT (HIGH COURT OF DELH I) - 16.12.2008 - 'SINCE THE COMMISSIONER OF INCOME TAX (A) HAS NOT ONLY FOUND THAT THE IDENTITY OF EACH OF THE SHARE HOLDERS/ CREDITOR STOOD ESTABLISHED, BUT HAS ALSO EXAMINED THE FACT THAT EACH OF THEM WERE INCOME TAX ASSESSEES AND HAD DISCLOSED THE SHARE APPLICATION MONEY OR AMOUNT PAID IN THEIR ACCOUNTS WHICH WERE DULY REFLECTED IN THEIR INCOME TAX RETURN AS WELL AS IN THEIR BALANCE SHEETS. IN THESE CIRCUMSTANCES WE SEE MERIT IN WHAT THE LEARNED COUNSEL FOR THE APPELLANT HAS SUBMITTED AND WE FEEL THAT THE TRIBUNAL WAS UNJUSTIFIED IN COMING TO THE CONCLUSION THAT THE CIT(A) HAD NOT CONSIDERED THE MATTER IN THE RIGHT PERSPECTIVE. CONSEQUENTLY WE DECIDE THE QUESTION IN FAVOUR OF THE ASSESSEE AND SET ASIDE THE ORDER PASSED BY THE TRIBUNAL.' CIT VS. TARUN AUTO( P) LTD. IN ITA 889/2010, DATE OF ORDER 19 - 07 - 2010 HELD AS UNDER: - BOTH THE COMMISSIONER AND ITAT HAVE FOUND THAT THE ASSESSEE HAD FILED COPIES OF SHARE APPLICATIONS, SHARE CERTIFICATE, CONFIRMATIONS/ AFFIDAVITS AND INCOME TAX RETURN ACKNOWLEDGEMENTS. THE P AN NUMBER OF THE INVESTOR HAD ALSO BEEN FURNISHED TO THE ASSESSING OFFICER. BOTH THE AUTHORITIES BELOW HAVE ALSO HELD THAT IF THE SHARE APPLICATION MONEY HAD BEEN RECEIVED BY THE ASSESSEE FROM ALLEGED BOGUS SHAREHOLDERS, THEN THE REVENUE WAS FREE TO OPEN T HE ALLEGED SHAREHOLDERS ASSESSMENT IN ACCORDANCE WITH LAW. ' IT VS DWARKADHISH INVESTMENT (P) LTD. IN ITA 91112010, DATE OF ORDER 02 - 08 - 2010 HELD AS UNDER: - 'IN ANY MATTER, THE ONUS OF PROOF IS NOT A STATIC ONE. THOUGH IN SECTION 68 PROCEEDINGS, THE INITI AL BURDEN OF PROOF LIES ON THE ASSESSEE YET ONCE HE PROVES THE IDENTITY OF THE CREDITORS/SHARE APPLICANTS BY EITHER FURNISHING THEIR PAN NUMBER OR INCOME TAX ASSESSMENT NUMBER AND SHOWS THE GENUINENESS OF TRANSACTION BY SHOWING MONEY IN HIS BOOKS EITHER BY ACCOUNT PAYEE CHEQUE OR BY DRAFT OR BY ANY OTHER MODE, THEN THE ONUS OF PROOF WOULD SHIFT TO THE REVENUE. JUST BECAUSE THE CREDITORS/SHARE APPLICANTS COULD NOT BE FOUND AT THE ADDRESS GIVEN, IT WOULD NOT GIVE THE REVENUE THE RIGHT TO INVOKE SECTION 68.... MOREOVER, IT IS SETTLED LAW THAT THE ASSESSEE NEED NOT TO PROVE THE 'SOURCE OF SOURCE ... 12. THOUGH WE WERE INITIALLY INCLINED TO IMPOSE COSTS YET WE ARE DCIT VS GREEN MARK INFRA LTD, ITA NO. 6206 TO 6208/DEL/2015 & CO NO. 398 TO 400/DEL/2015 (ASSESSMENT YEAR: 2007 - 08 TO 2009 - 10) PAGE | 17 OF THE OPINION THAT ENDS OF JUSTICE WOULD BE MET BY GIVING A DIRECTION TO THE REVENUE TO BE MORE CAR EFUL BEFORE FILING APPEALS IN A ROUTINE MANNER. IN OUR VIEW, APPEAL SHOULD NOT BE FILED IN MATTERS WHERE EITHER NO QUESTION OF LAW ARISES OR THE ISSUE OF LAW IS A SETTLED ONE. WE GIVE THIS DIRECTION BECAUSE THE ,JUDICIAL CAPITAL IN TERMS OF MANPOWER AND RE SOURCES IS EXTREMELY LIMITED.... ' ITO V/S M/S JAY IRON & STEEL LTD. IN ITA 30/2010, DATE OF ORDER13 - 08 - 2010 HELD AS UNDER: - APART FROM THIS ONE LAPSE ON THE PART OF THE ASSESSEE THAT IT FAILED TO PRODUCE THE DIRECTOR, IT HAS FILED ALL OTHER NECESSARY EVIDENCES FOR EXPLAINING SHARE APPLICATION MONEY RECEIVED BY IT. ON THE OTHER HAND, THE ONLY CIRCUMSTANCE NARRATED BY THE ASSESSING OFFICER IS THAT HE RECEIVED INFORMATION EXHIBITING THE INVOLVEMENT OF THESE SHARE APPLICANTS IN PROVIDING ACCOMMODATION ENTR Y BUT HE FAILED TO DISCLOSE THE NATURE OF THAT INFORMATION AND HOW IT IS RELATED TO THE ASSESSEE. HIS OBSERVATIONS ARE JUST GENERAL IN NATURE WITHOUT SPECIFYING ANY MATERIAL. WITH SUCH TYPE OF GENERAL INFORMATION, HE CANNOT TREAT THE SHARE APPLICATION RECE IVED BY THE ASSESSEE AS BOGUS IN A SWEEPING WAY. IN THE CASE OF CIT V. KAMDHENU STEEL & ALLIOYS LTD. (2012) 68 DTR 38 / 248 CTR 33/ 206 TAXMAN 254 HON'BLE HIGH COURT HELD THAT : - ONCE THE ASSESSEE PRODUCES ADEQUATE EVIDENCE WHICH PRIMA FACIE DISCHARGE TH E BURDEN OF PROVING IDENTITY, CREDITWORTHINESS OF THE SHAREHOLDERS AND GENUINENESS OF TRANSACTION, IN FACTS OF SUCH A CASE IF THE REVENUE AUTHORITIES WANT TO DISCARD THESE EVIDENCES AS 'CREATED EVIDENCES' THE REVENUE SHOULD MAKE THROUGH PROBE SO AS TO NAIL THE ASSESSEE UNDER SECTION 68 OF THE I.T. ACT. IN THE CASE OF CIT .U. BHAVAL SYNTHETICS (2013) 35 TAXMANN.COM 83 HON'BLE RAJASTHAN HIGH COURT DISMISSED THE APPEAL OF THE DEPARTMENT FOLLOWING THE DECISION OF THE HON'BLE. SUPREME COURT IN THE CASE OF CIT ST ELLER INVESTMENT LTD.[2001J 251 ITR 263 (SC). IN THIS CASE HON'BLE HIGH COURT OBSERVED THAT AO MADE AN ADDITION U/S. 68 OF THE ACT, TREATING AN AMOUNT OF RS.58.40 LAKHS, RECEIVED BY ASSESSEE ON ACCOUNT OF SHARE APPLICATION MONEY, AS UNEXPLAINED SHARE CAPIT AL ON THE GROUND THAT THE ASSESSEE FAILED TO FURNISH CONFIRMATION FROM THE ALLOTTEES / SHAREHOLDERS. THE CIT(A) AND THE TRIBUNAL DELETED THE ADDITION. ON APPEAL FILED BY THE DEPARTMENT, THE HIGH COURT DISMISSED THE DEPARTMENTAL DCIT VS GREEN MARK INFRA LTD, ITA NO. 6206 TO 6208/DEL/2015 & CO NO. 398 TO 400/DEL/2015 (ASSESSMENT YEAR: 2007 - 08 TO 2009 - 10) PAGE | 18 APPEAL FOLLOWING THE DECISIO N OF THE SUPREME COURT AS MENTIONED IN SUPRA. ONUS IS ON ASSESSEE TO DISCHARGE THAT CASH CREDITOR IS A MAN OF MEANS - THE ONUS IS ON THE ASSESSEE TO DISCHARGE THE ONUS THAT THE CASH CREDITOR IS A MAN OF MEANS TO ALLOW THE CASH CREDIT. THERE SHOULD BE IDENT IFICATION OF THE CREDITOR AND HE SHOULD BE A PERSON OF MEANS. WHEN THE CASH CREDITOR IS AN INCOME - TAX ASSESSEE, IT CANNOT BE SAID THAT HE IS NOT A MAN OF MEANS - KAMAL MOTORS V. CIT [2003] 131 TAXMAN 155 (RAJ). IT HAS BEEN HELD BY PUNE ITAT [2012] 19 TAXMA NN.COM 190 (PUNE - ITAT) THAT UNLESS ACCOUNTS ARE REJECTED FOR EXPRESS REASONS, AND CORROBORATED BY CONCLUSIVE EVIDENCE, ANY DECISION ON ESTIMATION OF INCOME IS UNSUSTAINABLE IN LAW. SUPREME COURT IN MEHTA PARIKH & CO. VS. CIT (1956) 30 ITR 181 (SC). IT WAS POINTED OUT THAT WHERE THE ASSESSEES ACCOUNT WERE ACCEPTED AS GENUINE, IT IS ORDINARILY NOT POSSIBLE TO SHOW THAT THE CREDITS THEREIN DO NOT COME FROM THE SOURCES ATTRIBUTED FOR THEM. TO SAY THAT THE BORROWING HAS NOT COME FROM THE ACCOUNTED SOURCE OF TH E LENDER MAY NOT BE SUFFICIENT IN ITSELF TO REACH A PRESUMPTION AS IT WAS HELD IN THE CASE OF CIT VS. METACHEM INDUSTRIES (2000) 245 ITR 160 (MP) THAT THERE IS NO FURTHER RESPONSIBILITY TO SHOW, THAT IT HAS COME FROM THE ACCOUNTED SOURCE OF THE LENDER. IN THE LIGHT OF THE ABOVE JUDGMENTS IT IS SUBMITTED THAT THE ASSESSEE HAS MADE SUBMISSIONS TO THE LD. A.O. OF THE BANK TRANSACTIONS IN THE BELOW FORMAT: S.NO. DATE PARTICULARS CHEQUE NO. WITHDRAWALS DEPOSITS NARRATION ADDRESS PAN NO. REMARKS IF ANY THE LD. A.O. HAS NOT CONSIDERED THE SUBMISSIONS NEITHER HE CONSIDERED THE CONFIRMATIONS PROVIDED FROM VARIOUS PARTIES FROM WHOM THE ASSESSEE RECEIVED CREDITS IN BANKS DURING THE NORMAL COURSE OF BUSINESS. THE LD. A.O. HAS NOT EVEN ISSUED ANY SUMMON U/S 131 TO PRES ENT BEFORE HIM IN ORDER TO CHECK THE GENUINENESS OF THE TRANSACTIONS NEITHER HE ISSUED ANY 133(6) FOR DEMAND OF INFORMATION TO PLACE RELIANCE ON THE SUBMISSIONS MADE BY THE ASSESSEE. THE LD. A.O. HAS PASSED THE IMPUGNED ORDER IN A HURRY ON 02.03.2015 WITHO UT ISSUING TO A SHOW CAUSE NOTICE TO THE ASSESSEE AND PROVIDING THE ASSESSEE A FINAL OPPORTUNITY OF BEING HEARD AND MAKING THE ASSESSMENT IN A HAPHAZARD MANNER AND DCIT VS GREEN MARK INFRA LTD, ITA NO. 6206 TO 6208/DEL/2015 & CO NO. 398 TO 400/DEL/2015 (ASSESSMENT YEAR: 2007 - 08 TO 2009 - 10) PAGE | 19 MAKING GENUINE HARDSHIP ON THE ASSESSEE BY ASSESSING AN INCOME WHICH IS NOT REAL IN ANY MANN ER. IF THE LD AO HAS ANY DOUBT ABOUT THE CREDIT ENTRIES, HE SHOULD HAVE ASKED FOR FURTHER CLARIFICATION FROM THE APPELLANT OR CONFIRMATION FROM CONCERNED PARTIES. BUT THE LD AO HAS PASSED THE ORDER ON 02/03/2015 WITHOUT ISSUING A SHOW CAUSE NOTICE TO THE A SSESSEE FOR THE ADDITION MADE. THE LD AO HAS NOT EVEN CONSIDERED THE CONFIRMATIONS AND OTHER EVIDENCES PROVIDED BY THE ASSESSEE COMPANY AND SIMPLY COPIED PASTE THE ASSESSMENT ORDER PASSED U/S 153C WHICH WAS ANNULLED BY THE CIT CENTRAL - II IN THE ORDER U/S 2 64 OF THE ACT. PROBABLY WHOLE OF THE ABOVE ADDITIONS ARE ALREADY MADE IN THE HANDS OF MR. MANOJ KUMAR AND MR. VIRENDER RAM BY ACIT - CC 09 AND CONFIRMED BY CIT APPEALS.AS ONCE ADDITIONS HAVE BEEN CONFIRMED IN THE HANDS OF ONE ASSESSEE SAME ADDITIONS CANNOT SUSTAINED IN HANDS OF ANOTHER ASSESSEE GIVING EFFECT TO DOUBLE TAXATION WHICH IS AGAINST THE LAW OF NATURAL JUSTICE AND SHOULD BE DELETED. IN THE LIGHT OF ABOVE JUDICIAL DECISIONS AND PROVISIONS OF SECTION 68 OF THE I.T. ACT 1961 IT IS VEHEMENTLY CONTENDED AND PRAYED TO YOUR KIND HONOR THAT THE REASSESSMENT PROCEEDINGS MADE ARE AGAINST THE PRINCIPLES OF NATURAL JUSTICE , EQUITY AND FAIR PLAY AND IS BAD IN LAW AND HEREBY SHOULD BE QUASHED. AS IT IS EVIDENT FROM THE ABOVE RECORDS THAT THE ASESSEE HAS ALWAYS P ROVIDE THE REQUISITE INFORMATION AS AND WHEN REQUIRED. IF THE LD AO HAS ANY DOUBT ABOUT THE CREDIT ENTRIES, HE SHOULD HAVE ASKED FOR FURTHER CLARIFICATION FROM THE APPELLANT OR CONFIRMATION FROM CONCERNED PARTIES. THE LD AO HAS NOT EVEN CONSIDERED THE CONF IRMATIONS AND OTHER EVIDENCES PROVIDED BY THE ASSESSEE COMPANY AND SIMPLY COPIED PASTE THE ASSESSMENT ORDER PASSED U/S 153C WHICH WAS ANNULLED BY THE CIT CENTRAL - II IN THE ORDER U/S 264 OF THE ACT. FINDING 10. I HAVE CONSIDERED THE FACTS OF THE CASE, WRITTEN SUBMISSIONS OF THE APPELLANT AND THE FINDINGS OF THE ASSESSING OFFICER. I FIND THAT THE APPELLANT HAD FILED COMPLETE DETAILS OF CREDIT AND DEBIT ENTRIES OF ITS BANK ACCOUNT AND ALSO THE DETAILS OF LOANS PAID AND INTEREST EARNED THERE FROM GIVING TH E NAME OF THE PARTY, PRINCIPAL AMOUNT OF LOAN, INTEREST EARNED THEREON DURING THE YEAR, TAX DEDUCTED AT SOURCE ON THE INTEREST INCOME, NET INTEREST DUE / RECEIVED AND THE BALANCE INTEREST RECEIVABLE. ON PERUSAL OF THE DETAILS OF CREDIT ENTRIES FILED BY THE APPELLANT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, I FIND THAT CLEAR NARRATION WAS GIVEN AGAINST THE CREDIT ENTRIES. IF THE ASSESSING OFFICER HAD ANY DOUBT ABOUT THE CREDIT DCIT VS GREEN MARK INFRA LTD, ITA NO. 6206 TO 6208/DEL/2015 & CO NO. 398 TO 400/DEL/2015 (ASSESSMENT YEAR: 2007 - 08 TO 2009 - 10) PAGE | 20 ENTRIES, HE COULD HAVE ASKED FOR FURTHER CLARIFICATION FROM THE APPELLANT OR C ONFIRMATION FROM THE CONCERNED PARTY. ON PERUSAL OF THE DETAIL OF THE CREDIT ENTRIES, SUCH AN ACTION OF THE ASSESSING OFFICER WAS NOT AT ALL JUSTIFIED. ACCORDINGLY, THE ADDITION OF RS. 3,95,32,500/ - MADE BY THE ASSESSING OFFICER IS DELETED. GROUND RAISED I N APPEAL IS ALLOWED. 11. GROUND NO. 4 OF APPEAL RELATES THAT LD A.O. WITHOUT APPRECIATING THE CORRECT FACTS OF THE CASE AND GIVING PROPER OPPORTUNITY OF BEING HEARD IS NOT JUSTIFIED IN LAW AND FACTS AND CIRCUMSTANCES OF THE CASE IN MAKING ADDITION OF RS. 15 ,35,000/ - ON ACCOUNT OF UNEXPLAINED CURRENT LIABILITIES. THE LD. AO. HAS STATED IN HIS IMPUGNED ORDER THAT ON PERUSAL OF BALANCE SHEET IT IS FOUND THAT IN SCHEDULE - VI THE ASSESSEE HAS SHOWN AN AMOUNT OF RS. 15,35,000/ - UNDER THE HEAD CURRENT LIABILITIES. THE ASSESSEE WAS REQUIRED TO EXPLAIN THE NATURE AND SOURCE OF THIS LIABILITY BUT IN SPITE OF THE REPEATED REQUEST ASSESSEE FAILED TO ESTABLISH THE IDENTITY AND GENUINESS OF PESRONS AND PURPOSE. THEREFORE, THE LIABILITIES TO THE TUNE OF RS. 15,35,000/ - IS B EING DISALLOWED TO BE ADDED AS INCOME OF THE COMPANY. 11.1 THAT THE ASSESSING OFFICER, ERRED IN LAW AND FACT OF THE CASE IN MAKING ASSESSMENT ON THE ISSUE OF OTHER LIABILITIES, AS REFLECTED IN THE BALANCE SHEET OF THE ASSESSE, WITHOUT CONSIDERING THE FACT AND SUBMISSION AVAILABLE ON RECORD AND ALSO WITHOUT PROVIDING SUFFICIENT AND REASONABLE OPPORTUNITY TO THE ASSESSEE. THE AMOUNT OF RS. 15,35,000/ - IS THE AMOUNT RECEIVED BY THE ASSESSEE FROM SHREY INFRADEVELOPERS PRIVATE LIMITED (RS. 14,00,000/ - ) AND SAM P ORTFOLIO PRIVATE LIMITED ( RECEIVED RS.3,35,000/ - RETURNED BACK RS.2,00,000/ - DURING THE YEAR) WHICH IS CLEARLY MENTIONED IN THE SUMMARY SHEET AND DETAILED NARRATION SHEET OF THE BANK ENTRIES SUBMITTED BY THE ASSESSEE. THE LD A.O. HAS ERRED IN CONSIDERING THE FACT THAT ONCE ALL THE ADDITIONS FOR THE AMOUNT RECEIVED BY THE ASSESSEE IN ITS BANK ACCOUNTS HAS BEEN ADDED TO THE INCOME OF THE ASSESSEE THAN HOW THE AMOUNT OF LIABILITIES AND OTHER ADDITIONS CAN BE MADE CAUSING DOUBLE TAXATION ON THE SAME AMOUNT OVE R AND OVER AGAIN WHICH IS UNFAIR, UNJUST AND BAD IN LAW. 11.2 IN THIS REGARD IT IS MOST HUMBLY SUBMIT THAT AS DEMONSTRATED ABOVE THE ASSESSMENT ORDER WAS FINALIZED WITHOUT PROVIDING ANY REASONABLE OPPORTUNITY TO THE ASSESSEE AND WITHOUT APPRECIATING FACTS AND SUBMISSION AVAILABLE ON RECORDS. THE BOOKS OF ACCOUNTS INCLUDING BANK BOOK HAS NOWHERE BEING REJECTED BY THE ASSESSING OFFICER. IT HAS BEEN HELD BY PUNE ITAT [2012] 19 TAXMANN.COM 190 (PUNE - ITAT) THAT UNLESS ACCOUNTS ARE REJECTED FOR EXPRESS REASONS, AND CORROBORATED BY CONCLUSIVE EVIDENCE, ANY DECISION ON ESTIMATION OF INCOME IS UNSUSTAINABLE IN LAW. THE PROTECTIVE ASSESSMENT HAS BEEN MADE BY THE ASSESSING OFFICER, WITHOUT DISCLOSING THE CASE WHERE SUSTENTATIVE ASSESSMENT HAS DCIT VS GREEN MARK INFRA LTD, ITA NO. 6206 TO 6208/DEL/2015 & CO NO. 398 TO 400/DEL/2015 (ASSESSMENT YEAR: 2007 - 08 TO 2009 - 10) PAGE | 21 BEEN MADE. IT HAS BEEN H ELD IN THE CASE OF SMT. FARZANA FAROOQ DESAI VS. DY. CIT (2002) 74 TTJ 507 (AHD.) THAT THERE CANNOT BE A PROTECTIVE ASSESSMENT. THE ASSESSING OFFICER WHILE MAKING THE ADDITIONS, HAS NOT PLACED ON RECORD ANY SUPPORTING EVIDENCE TO SUBSTANTIATE HIS CONTENTIO N. THUS THE ADDITION HAS BEEN MADE BY THE ASSESSING OFFICER, IS UN - JUSTIFIED, ILLEGAL AND BAD - IN - LAW. 11.3 PRAYER IN THE LIGHT OF THE SUBMISSION MADE ABOVE IT IS MOST RESPECTFULLY AND HUMBLY PRAYED BEFORE YOUR KIND HONOR, THAT AS THE ABOVE AMOUNT HAS BEEN ADDED BY THE A.O. TWO TIMES WHILE MAKING THE VOLUMINOUS AND UNFAIR ADDITIONS SHOULD BE DELETED. 11.4 IT IS EVIDENT FROM THE ABOVE THAT, THE LD. AO HAS NOT CONSIDERED THE FINANCIAL STATEMENTS AND SUBMISSION AVAILABLE ON RECORD AND ALSO WITHOUT PROVIDING S UFFICIENT AND REASONABLE OPPORTUNITY TO THE ASSESSEE. FINDING 12. I HAVE CONSIDERED THE FACTS OF THE CASE, WRITTEN SUBMISSIONS OF THE APPELLANT AND THE FINDINGS OF THE ASSESSING OFFICER. I FIND THAT THE APPELLANT HAD FILED COMPLETE DETAILS OF CREDIT AND DE BIT ENTRIES OF ITS BANK ACCOUNT AND ALSO THE DETAILS OF LOANS PAID AND INTEREST EARNED THERE FROM, GIVING THE NAME OF Y THE PARTY, PRINCIPAL AMOUNT OF LOAN, INTEREST EARNED THEREON DURING THE YEAR, TAX DEDUCTED AT SOURCE ON THE INTEREST INCOME, NET INTERES T DUE / RECEIVED AND THE BALANCE INTEREST RECEIVABLE. ON PERUSAL OF THE DETAILS OF CREDIT ENTRIES FILED BY THE APPELLANT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IJIND THAT CLEAR NARRATION WAS GIVEN AGAINST THE CREDIT ENTRIES. IF THE ASSESSING OFFICER HAD ANY DOUBT ABOUT THE CREDIT ENTRIES, HE COULD HAVE ASKED FOR FURTHER CLARIFICATION FROM THE APPELLANT OR CONFIRMATION FROM THE CONCERNED PARTY. ON PERUSAL OF THE DETAIL OF THE CREDIT ENTRIES, SUCH AN ACTION OF THE ASSESSING OFFICER WAS NOT AT ALL JUSTIF IED. IN VIEW OF THE ABOVE FACTS AND CONSIDERING THE EVIDENCE ON RECORD, I SEE NO JUSTIFICATION FOR THE ASSESSING OFFICER IN HOLDING THAT THE ABOVE TRANSACTIONS REMAINED UNEXPLAINED AND MAKING THE IMPUGNED ADDITION. ACCORDINGLY, THE ADDITION OF RS. 15,35,00 0/ - MADE BY THE ASSESSING OFFICER IS DELETED. GROUND RAISED IN APPEAL IS ALLOWED. 13. THEREFORE, THE REVENUE IS AGGRIEVED WITH THE ORDER OF THE LD CIT(A) WHERE THE ADDITION IS DELETED AND ASSESSEE HAS FILED CROSS OBJECTION ON THE ISSUE OF REOPENING. 14. COMING TO THE APPEAL OF THE REVENUE WHERE GROUND NO. 1 AND 2 ARE WITH RESPECT TO THE ADDITION OF RS. 393532500/ - AND RS. 1535000/ - THE LD CIT DCIT VS GREEN MARK INFRA LTD, ITA NO. 6206 TO 6208/DEL/2015 & CO NO. 398 TO 400/DEL/2015 (ASSESSMENT YEAR: 2007 - 08 TO 2009 - 10) PAGE | 22 DR VEHEMENTLY SUBMITTED THAT IT IS RESPONSIBILITY OF THE PERSON WHO DEPOSITS MONEY IN HIS BANK ACCOUNT TO SHOW THAT FROM WHOM THE MONEY IS RECEIVED AND HIS IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION IS REQUIRED TO BE PROVED BY THE ASSESSEE. HE STATED THAT ASSESSEE HAS FAILED TO SHOW THAT FROM WHOM THE MONEY HAS BEEN RECEIVED AND WHOSE MONEY IS DEPOSITED IN THE BANK ACCOUNT . UNLESS , ASSESSEE SHOWS THAT , ADDITION IN THE HANDS OF THE ASSESSEE CANNOT BE DELETED. HE SUBMITTED THAT MERELY FILING THE DETAIL WITHOUT CONFIRMATION OF THE PARTIES , ASSESSEE CANNOT GET AWAY WITH THE ADDITION. HE FURTHER STATED THAT INIT IAL ONUS U/S 68 OF THE ACT LIES UPON THE ASSESSEE. IF THE AO IS NOT SATISFIED WITH THE SAME THEN ONLY HE IS REQUIRED TO MAKE FURTHER ENQUIRY AND THEN ONLY THE ONUS SHIFTS ON THE LD ASSESSING OFFICER. IN THE PRESENT CASE THE ASSESSEE HAS NOT DISCHARGED THE INITIAL ONUS THEREFORE, THE LD CIT(A) HAS WRONGLY DELETED THE ADDITION. HE VEHEMENTLY REFERRED TO PARA NO. 10 OF THE ORDER AND STATED THAT THE WHOLE ADDITION HAS BEEN DELETED WITHOUT ANY APPLICATION OF MIND BY THE LD CIT(A). HE FURTHER REFERRED TO PARA NO. 11 OF THE ORDER WITH RESPECT TO THE ADDITION OF RS. 1535000/ - AND STATED THAT THE ADDITION IS DELETED BY THE LD CIT(A) WITHOUT INDEPENDENTLY APPLYING HER MIND BUT SIMPLY COPYING THE FINDING OF PARA NO. 10 IN PARA NO. 12 AND DELETED THE ADDITION. HE WAS OF THE VIEW THAT UNLESS THE ASSESSEE SHOWS THE NECESSARY INGREDIENTS U/S 68 HE CANNOT GET AWAY WITH THE ADDITION. HE FURTHER STATED THAT SHRI ASHEEM GUPTA AS STATED BY THE LD AO IN ASSESSMENT ORDER IS THE ACCOMMODATION ENTRY PROVIDER WHO APPEARED BEFORE THE LD CIT(A) ALSO. EVEN BEFORE THE LD CIT(A) NO INFORMATION WAS PROVIDED . HE FURTHER SUBMITTED THAT THE LD CIT(A) HAS HELD THAT THE DETAILS OF LOAN GIVEN TO THE PARTIES IS PROVIDED BY THE ASSESSEE ALONG WITH THE DETAILS OF INTEREST RECEIVED AND THE PRINCIPAL AMOUNT. HE STATED THAT IN CASE OF ENTRY OPERATOR THE LOANS OUTSTANDING IN THE BOOKS OF THE APPELLANT COMPANY IS THE REAL BENEFICIARY OF THE ACCOMMODATION ENTRY AND TAX CAN BE RECOVERED FROM THEM U/S 226(3) OF THE ACT AND FURTHER THE LD CIT(A) EVEN DID NOT CARE TO EVEN KNOW THAT DCIT VS GREEN MARK INFRA LTD, ITA NO. 6206 TO 6208/DEL/2015 & CO NO. 398 TO 400/DEL/2015 (ASSESSMENT YEAR: 2007 - 08 TO 2009 - 10) PAGE | 23 WHAT IS THE COMMISSION CHARGED BY THE ENTRY OPERATOR ASSESSEE BY PROVIDING ACCOMMODATION ENTRIES. HE THEREFORE, SUBMITTED THAT THE LD CIT(A) HAS DELETED THE ADDITION WITHOUT APPLYING THE LAW TO THE FACTS OF THE CASE. 15. THE LD DR RELI ED UPON THE FOLLOWING DECISIONS: - I. PCIT VS. PARAMOUNT COMMUNICATION (P) LTD (2017 - TIOL - 253 - HON'BLE SUPREME COURT IT) II. PCIT VS. PARAMOUNT COMMUNICATION (P) LTD (2017) 79 TAXMANN.COM 409 (DELHI) 392 ITR 444. III. ARADHNA ESTATE P LTD VS. DCIT (2018) 91 TAXMANN.COM 119 IV. PUSHPAK BULLION P LTD S. DCIT 85 TAXMANN.COM 84 V. ANKIT FINANCIAL SERVICES LTD VS. DCIT 78 TAXMANN.COM 58 VI. AASPAS MULTIMEDIA LTD VS. DCIT 83 TAXMANN.COM 82 VII. ANKIT AGROCHEM P LTD VS. JCIT (2018) 89 TAXMANN.COM 45 16. HE FURTHER REFERRED THE DECISION OF THE H ON'BLE DELHI HIGH COURT IN CASE OF SHRI CIT VS. DK GARG IN 404 ITR 757 TO STATE THAT EACH DEBIT AND CREDIT IS REQUIRED TO BE EXPLAIN ED BY THE ASSESSEE. HE FURTHER REFERRED TO DECISION OF THE HON'BLE DELHI HIGH COURT IN CASE OF SEEMA JAIN VS. ACIT 406 ITR 4 11 WHEREIN, TAXATION OF CREDIT AS INCOME OF ASSESSEE IS JUSTIFIED. IN VIEW OF THIS HE SUBMITTED THAT THE ORDER PASSED BY THE LD CIT(A) REQUIRED TO BE VACATED. 17. HE FURTHER REFERRED TO THE DECISION OF THE SHRI RAJ KUMAR CHAWLA VS ACIT, NEW DELHI DATED 26.09. 2018 WHEREIN, THE ISSUE WITH RESPECT TO THE ACCOMMODATION ENTRY BY MR ASHEEM GUPTA WAS DISCUSSED. HE REFERRED TO PARA NO. 11 OF THAT ORDER AND STATED THAT IN THE PRESENT CASE THERE IS NO OPPORTUNITY OF CROSS EXAMINATION OF SHRI ASHEEM KUMAR GUPTA IS REQUI RED SHRI ASHEEM KUMAR GUPTA HIMSELF APPEARED BEFORE THE LD CIT(A) AND AT NO STAGE HE REFUTED HIS OWN STATEMENT. FURTHER, BEFORE THE ASSESSING OFFICER ASSESSEE HAS NOT UTTERED A WORD ABOUT THE CROSS EXAMINATION. DCIT VS GREEN MARK INFRA LTD, ITA NO. 6206 TO 6208/DEL/2015 & CO NO. 398 TO 400/DEL/2015 (ASSESSMENT YEAR: 2007 - 08 TO 2009 - 10) PAGE | 24 18. HE FURTHER REFERRED TO THE DECISION OF THE C OORDINATE BENCH IN ITA NO. 2973/DEL/2014 DATED 30.01.2018 WHEREIN, THE ASSESSEE HIMSELF HAVE CONFESSED A SURRENDER OF RS. 55 LAKHS ON ACCOUNT OF ACCOMMODATION ENTRY RECEIVED FROM SHRI ASHEEM KUMAR GUPTA AND FURTHER THE PENALTY OF RS. 1699500/ - WAS CONFIRME D. HE THEREFORE, SUBMITTED THAT NOW THERE IS NO DOUBT THAT MR. ASHEEM KUMAR GUPTA IS BOGUS ACCOMMODATION ENTRY PROVIDER AND UNLESS HE GIVES THE NAMES OF BENEFICIARY OF THE APPELLANT COMPANY THE ADDITION CANNOT BE DELETED IN THE HANDS OF THE COMPANY. 19. ON THE ISSUE OF REOPENING OF THE ASSESSMENT IN THE CROSS OBJECTION OF THE ASSESSEE HE RELIED UPON THE ORDERS OF THE LD CIT(A) WHEREIN, THE REOPENING IS UPHELD. 20. DESPITE NOTICE NONE APPEARED ON BEHALF OF THE ASSESSEE AND THEREFORE, THE ISSUE IS DECIDED ON THE MERITS OF THE CASE AS PER INFORMATION AVAILABLE ON RECORD. 21. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND ALSO PERUSED THE ORDERS OF THE LOWER AUTHORITIES. THE BRIEF FACTS OF THE CASE SHOWS THAT ASSESSEE COMPANY IS PART OF ONE OF THE COMPANIES OPE RATED BY SHRI ASHEEM KUMAR GUPTA FOR PROVIDING ACCOMMODATION ENTRIES. DURING THE COURSE OF SURVEY , STATEMENT U/S 133A OF THE ACT WAS RECORDED OF MR. ASHEEM KUMAR GUPTA WHO IS DIRECTOR IN 8 COMPANIES WHICH WAS ENGAGED IN PROVIDING ACCOMMODATION ENTRIES AS U NDER: - A) M/S JIWAN REALTORS LTD, B) M/S. GANPATI FINCAP SERVICES PVT LTD., C) M/S SAM PORTFOLIO PVT. LTD., D) MODERATE CREDIT CORPORATIONS PVT. LTD., E) M/S CHOTTI LEASING & FINANCE PVT. LTD., F) M/S S.G. PORTFOLIO PVT. LTD., G) M/S SUSHRE SECURITIES PVT. LTD AND H) M/S SHREY INFRADEVELOPERS PVT. LTD. DCIT VS GREEN MARK INFRA LTD, ITA NO. 6206 TO 6208/DEL/2015 & CO NO. 398 TO 400/DEL/2015 (ASSESSMENT YEAR: 2007 - 08 TO 2009 - 10) PAGE | 25 22. ON THE BASIS OF THE ABOVE INFORMATION THE ASSESSMENT OF THE ASSESSEE WAS REOPENED U/S 147 OF THE ACT . EARLIER IN 153C ASSESSMENT THE ADDITIONS WERE MADE IN THE HANDS OF THE ASSESSEE ON PROTECTIVE BASIS AND ON SUBSTANTIVE BASIS WAS MADE IN THE HANDS OF MR. MANOJ KUMAR WHO WORKED WITH SHRI ASHEEM GUPTA, A CHARTERED ACCOUNTANT WHO WAS ENGAGED IN PROVIDING ACCOMMODATION ENTRIES. THE PROTECTIVE ADDITION WAS MADE ON ACCOUNT OF MISREPRESENTATION MADE BY SHRI ASHEEM KUMAR GUPTA IN HIS STATEMENT RECORDED VIDE QUESTION NO. 5 DURING THE COURSE OF SURVEY. HE MIS - REPRESENTED THE FACT THAT ASSESSMENT IN CASE OF SHRI MANOJ KUMAR HAS BEEN ASSESSED ON THIS INCOME ON SUBSTANTIVE BASIS WHEREAS, IN FACT HE WAS ASSESSED ON PROTECTIVE BASIS. THE ASSESSEE HAS CLAIMED BEFORE THE LD CIT(A) WITH RESPECT TO THE REOPENING OF THE ASSESSMENT THAT THE PROVISION TO SECTION 147 TO 151 OF THE ACT ARE NOT COMPLIED WITH, HOWEVER, NO ARGUMENTS WERE RAISED BEFORE THE LD CIT(A) WITH EVIDENCES. HOWEVER, IT WAS ARG UED THAT THERE WAS NO FRESH TANGIBLE MATERIAL FOR REOPENING OF THE ASSESSMENT WAS AVAILABLE WITH THE LD AO BUT IN FACT THE STATEMENT OF SHRI ASHEEM KUMAR GUPTA WHO IS A DIRECTOR OF THE COMPANY THAT HE HAS MADE THE STATEMENT THAT HE IS PROVIDING ACCOMMODATI ON ENTRY IS A TANGIBLE MATERIAL FOR REOPENING OF THE ASSESSMENT. IT IS THE STATEMENT OF THE DIRECTOR OF ASSESSEE COMPANY WHICH WAS NEVER RETRACTED AND IN FACT BY ARGUING BEFORE LOWER AUTHORITIES. SO IN TURN, IT WAS HIS TACIT APPROVAL OF HIS STATEMENT. HON' BLE BOMBAY HIGH COURT IN PEBBAL INVESTMENT AND FINANCE LTD VS. ITO HAS HELD THAT STATEMENT U/S 133A OF THE ACT CAN BE USED FOR THE PURPOSE OF MAKING AN ASSESSMENT IN THE HANDS OF THE ASSESSEE. FURTHER, WHEN SHRI ASHEEM KUMAR GUPTA HAS NEVER RETRACTED HIS S TATEMENT , AS HE APPEARED BEFORE THE LD CIT(A) , TO STATE THAT HIS STATEMENT WAS INCORRECT. THE REASONS WERE PROVIDED TO THE ASSESSEE HOWEVER, NO OBJECTIONS WERE RAISED BEFORE THE LD ASSESSING OFFICER. WITH RESPECT TO THE SANCTION OF THE ISSUE OF THE NOTICE ALSO NO INFIRMITY WAS SHOWN BEFORE THE LD CIT(A). IN VIEW OF THIS , WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD CIT(A) IN CONFIRMING THE DCIT VS GREEN MARK INFRA LTD, ITA NO. 6206 TO 6208/DEL/2015 & CO NO. 398 TO 400/DEL/2015 (ASSESSMENT YEAR: 2007 - 08 TO 2009 - 10) PAGE | 26 REOPENING OF THE ASSESSMENT MADE BY THE LD AO. IN VIEW OF THIS THE CROSS OBJECTION FILED BY THE ASSESSEE IS DISMISSED. 23. ON THE ISSUE OF THE MERITS OF THE ADDITION , IT IS APPARENT THAT ASSESSEE HAS MERELY SUBMITTED THE SUMMARY AND NARRATIONS OF THE DEBIT AND CREDIT ENTRIES OF THE BANK, HOWEVER, IT WAS NOT SHOWN THAT FROM WHOM THE ASSESSEE HAS RECEIVED THE ABOVE SU M AND TO WHOM IT HAS BEEN PAID ALONG WITH THE PURPOSES. THE LD AO EMPHATICALLY STATED THAT THE ASSESSEE HAS FAILED TO PROVIDE EXPLANATION WITH RESPECT TO THE NATURE AND SOURCE OF THE DEPOSITS REFLECTED IN THE BANK ACCOUNT. THERE IS NO EVIDENCE THAT ASSESSE E HAS SUBMITTED CONFIRMATION OF THOSE PARTIES. EVEN BEFORE THE LD CIT(A) IT WAS NOT REBUTTED THAT ASSESSEE IS NOT AN ACCOMMODATION ENTRY PROVIDER. FURTHER, IN ABSENCE OF PRELIMINARY DISCHARGE OF INITIAL ONUS BY THE ASSESSEE OF THE SUMS CREDITED IN THE BOOK S , OF THE ASSESSEE , THE LD AO IS NOT DUTY BOUND TO ISSUE ANY SUMMONS U/S 131 OF THE ACT. IT IS ALSO APPARENT THAT WHEN ASSESSEE HAS NOT PROVIDED THE COMPLETE DETAILS OF THE PERSONS FROM WHOM THE SUMS WERE RECEIVED , IT IS NOT CORRECT TO SAY THAT THE LD AO S HOULD HAVE ISSUED SUMMONS TO THOSE PARTIES. THE LD CIT(A) HAS DELETED THE ADDITION FOR THE REASON THAT ASSESSEE FILED DETAILS OF CREDIT AND DEBIT ENTRIES OF THE BANK ACCOUNT AND ALSO THE LOANS PAID. THE LD CIT(A) HAS BLINDFOLDEDLY ACCEPTED THE EXPLANATION OF THE ASSESSEE WITHOUT GIVING ANY CREDENCE TO THE FACT OF THE CASE THAT ASSESSEE COMPANY IS AN ACCOMMODATION ENTRY PROVIDER AND UNLESS THE REAL BENEFICIARIES ARE NAMED BY IT, IT CANNOT ESCAPE THE TAXATION OF THE SUM CREDITED IN ITS BOOKS OF ACCOUNT. FURTH ER, IN CASE OF ACCOMMODATION ENTRY PROVIDED BY THE ASSESSEE, NATURE OF SUCH ACCOMMODATION ENTRIES WERE ALSO NOT SHOWN BEFORE LOWER AUTHORITIES BY ASSESSEE. AS ASSESSEES DIRECTOR HAS CONFESSED THAT ASSESSEE COMPANY IS PROVIDING ACCOMMODATION ENTRIES, THEN, CIT(A) EVEN DID NOT CARE TO VERIFY THAT WHO ARE THE BENEFICIARIES AND WHAT IS THE AMOUNT OF COMMISSION RECEIVED BY ASSESSEE FROM THE BENEFICIARIES FROM PROVIDING ACCOMMODATION ENTRIES. WITHOUT EVEN CALLING FOR ALL THESE DETAILS, THE LD CIT(A) HAS DELETED THE ADDITION. IN VIEW OF DCIT VS GREEN MARK INFRA LTD, ITA NO. 6206 TO 6208/DEL/2015 & CO NO. 398 TO 400/DEL/2015 (ASSESSMENT YEAR: 2007 - 08 TO 2009 - 10) PAGE | 27 THIS , WE REVERSE THE FINDING OF THE LD CIT(A) AND CONFIRM THE ORDER OF THE LD ASSESSING OFFICER WITH RESPECT TO THE ADDITION OF RS. 39532500/ - FOR ASSESSMENT YEAR 2007 - 08. ACCORDINGLY, APPEAL OF THE LD ASSESSING OFFICER AND ITS GRO UND NOS. 1 IS ALLOWED ACCORDINGLY. 24. WITH RESPECT TO GROUND NO. 2 THE LD AO NOTED THAT ASSESSEE HAS SHOWN CURRENT LIABILITIES OF RS. 1535000/ - BUT HAS NOT GIVEN THE CONFIRMATION OF THOSE PARTIES. THE ASSESSEE SUBMITTED BEFORE THE LD CIT(A) THAT IT RECEIVED SUM OF RS. 14 LAKHS FROM SHREYS INFRADEVELOPERS PVT. LTD AND SAN PORTFOLIO PVT LTD OF RS. 135000/ - , HOWEVER, NO CONFIRMATION WAS PROVIDED OF THESE PARTIES. IN VIEW OF THIS THE ADDITION HAS BEEN MADE BY THE LD AO. THE LD CIT(A) DELETED THE ADDITION WITHOUT EVEN ASKING FOR THE CONFIRMATION. WE FIND THAT UNLESS THE ASSESSEE SUBMITS THE CONFIRMATION OF THESE PARTIES THE ADDITION CANNOT BE DELETED. IN VIEW OF THIS WE REVERSE THE FINDING OF THE LD CIT(A) AND RESTORE THE ORDER OF THE LD AO. GROUND NO. 2 OF THE AP PEAL OF THE REVENUE IS ALLOWED. 25. IN VIEW OF OUR ABOVE FINDING WE ALLOW ITA NO. 6206/DEL/2015 FILED BY THE AO AND DISMISS THE CROSS OBJECTION NO. 398/DEL/2015 FILED BY THE ASSESSEE. 26. THE FACTS OF THE CASE FOR AY 2008 - 09 AND 2009 - 10 ARE SIMILAR EXCEPT THAT FOR ASSESSMENT YEAR 2008 - 09 THE LD ASSESSING OFFICER MADE THE ADDITION OF RS. 68531671/ - ON ACCOUNT OF UNEXPLAINED DEPOSIT AND RS. 435320/ - ON ACCOUNT OF UNEXPLAINED PROFIT ON SALE OF INVESTMENTS. FOR ASSESSMENT YEAR 2009 - 10 THE ADDITION IS MADE ON ACCOUN T OF UNEXPLAINED DEPOSIT OF RS. 121033910/ - AND ON ACCOUNT OF UNEXPLAINED PROFIT ON SALE OF SHARES OF RS. 310500/ - . FOR ASSESSMENT YEAR 2009 - 10 THE LD ASSESSING OFFICER OVER AND ABOVE THE UNEXPLAINED DEPOSIT FOUND THAT THE ASSESSEE COMPANY HAS SHOWN INVEST MENT AMOUNTING TO RS. 35.05 LAKHS HOWEVER, NO PROFIT OR LOSS ON SALE OF INVESTMENT WAS SHOWN AND THEREFORE, THE LD ASSESSING OFFICER MADE ADDITION OF 10% OF THE SALE PRICE. SIMILARLY, FOR ASSESSMENT YEAR 2008 - 09 THE LD ASSESSING OFFICER NOTED THAT INVESTME NT OF RS. 4353208/ - WERE SHOWN, HOWEVER NO PROFIT AND LOSS THEREON HAS DISCLOSED DCIT VS GREEN MARK INFRA LTD, ITA NO. 6206 TO 6208/DEL/2015 & CO NO. 398 TO 400/DEL/2015 (ASSESSMENT YEAR: 2007 - 08 TO 2009 - 10) PAGE | 28 HENCE, 10% ADDITION HAS BEEN MADE. THE LD CIT(A) FOR BOTH THE YEARS DELETED THE ADDITION. BEFORE THE LD CIT(A) REOPENING FOR BOTH THE YEARS WERE CHALLENGED WHICH WERE UPHELD W HEREAS ON THE QUANTUM THE ADDITION WAS DELETED AND THEREFORE, BOTH THE PARTIES ARE IN APPEAL BEFORE US. 27. THE ASSESSEE IN CO FOR BOTH THE YEARS CHALLENGED THE REOPNIENG WHICH HAS BEEN DEALT WITH BY US IN CASE OF THE ASSESSEE FOR ASSESSMENT YEAR 2007 - 08. IN THAT YEAR WE HAVE UPHELD THE ACTION OF THE AO IN REOPENING THE ASSESSMENT AND THEREFORE, FOR THE SIMILAR REASONS WE DISMISS BOTH THE CROSS OBJECTION FOR BOTH THE YEARS FILED BY THE ASSESSEE. 28. THE REVENUE HAS CHALLENGED THE DELETION OF THE ADDITION BY THE L D CIT(A) ON ACCOUNT OF UNEXPLAINED DEPOSITS. WE HAVE ALREADY CONFIRMED THE ORDER OF THE LD ASSESSING OFFICER REVERSING THE ORDER OF THE LD CIT(A) FOR ASSESSMENT YEAR 2007 - 08. FOR THE SIMILAR REASONS WE ALSO CONFIRMED THE ADDITION ON ACCOUNT OF UNEXPLAINED DEPOSIT FOR ASSESSMENT YEAR 2008 - 09 AND 2009 - 10 IN THE HANDS OF THE ASSESSEE. ACCORDINGLY, GROUND NO. 1 OF THE APPEAL FOR ASSESSMENT YEAR 2008 - 09 AND 2009 - 10 OF THE LD AO IS ALLOWED. 29. GROUND NO. 2 OF THE APPEAL FOR BOTH THE YEARS IS ON ACCOUNT OF ESTIMATED PROFIT ON SALE OF INVESTMENT BY THE ASSESSEE. THE ABOVE ADDITION HAS BEEN MADE BY THE LD ASSESSING OFFICER PURELY ON THE BASIS OF SURMISES AND CONJECTURES AND WITHOUT MAKING ANY ENQUIRY WHETHER THE ASSESSEE HAS SOLD THE INVESTMENT AT PROFIT OR AT LOSSES. THERE WERE NO EVIDENCES ALSO MENTIONED BY THE LD ASSESSING OFFICER FOR MAKING THE ABOVE ADDITION. FURTHER, THE ADDITION IS ON ESTIMATE BASIS. THOUGH THE LD CIT(A) HAS DELETED THE ADDITION WITH WHICH HE DO NOT AGREED, HOWEVER, FOR THE REASONS GIVEN BY US AB OVE WE DIRECT THE LD ASSESSING OFFICER TO DELETE THE ADDITION OF RS. 435320/ - AND RS. 310500/ - FOR AY 2008 - 09 AND 2009 - 10. ACCORDINGLY, GROUND NO. 2 OF THE APPEAL OF THE REVENUE FOR BOTH THE YEARS IS DISMISSED. DCIT VS GREEN MARK INFRA LTD, ITA NO. 6206 TO 6208/DEL/2015 & CO NO. 398 TO 400/DEL/2015 (ASSESSMENT YEAR: 2007 - 08 TO 2009 - 10) PAGE | 29 30. ACCORDINGLY, APPEAL OF THE REVENUE FOR A Y 2008 - 09 AND 2009 - 10 ARE PARTLY ALLOWED AND CO FILED BY THE ASSESSEE FOR BOTH THE YEARS ARE DISMISSED. 31. NOW IT IS EVIDENT THAT ASSESSEE IS AN ENTRY OPERATOR AND PROVIDING ACCOMMODATION ENTRIES, SO IT IS ALSO CLEAR THAT THIS COMPANY WILL HAVE VERY SCARCE R ESOURCE FOR PAYMENT OF TAXES THEREFORE, THE LD AO MAY INVOKE PROVISIONS OF SECTION 226(3) OF THE ACT AND RECOVER TAXES FROM THOSE BENEFICIARIES, IN CASE ASSESSEE COMPANYS ASSETS ARE NOT ENOUGH FOR PAYMENT OF TAXES. 32. ACCORDINGLY, ALL THE SIX APPEALS PERTAINING TO THE ABOVE ASSESSEE ARE DISPOSED OFF BY THIS COMMON ORDER. ORDER PRONOUNCED IN THE OPEN COURT ON 2 6 / 10 / 2018 . - SD/ - - SD/ - ( KULDIP SINGH ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 6 / 10 / 2018 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI