Appeal Details
Counselvise Citation
[2016] 131 COUNSELVISE.COM (IT) 1780 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
4 year(s) 9 month(s) 17 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
01-12-2016
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
C
Next Hearing Date
12-01-2015
Assessment Year
2004-2005
Appeal Filed On
14-02-2012
Judgement Text
, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, C MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.1076/MUM/2012 ASSESSMENT YEAR: 2004-05 M/S PANNA GOLD IMPEX LTD. (FORMERLY KNOWN AS M/S SHREE MARUDHAR JEWELLERS LTD.), 11/12, CHUNAWALA BLDG. 3 RD FLOOR, 489B, JSS ROAD, CHIRA BAZAR, MUMBAI-400002 / VS. INCOME TAX OFFICER-4(3)(4), R. NO.637, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020 ( ! ' /ASSESSEE) ( # / REVENUE) PAN. NO. AACCG7035Q #$ % ' & / DATE OF HEARING : 01/12/2016 % ' & / DATE OF ORDER: 28/12/2016 ! ' ! / ASSESSEE BY SHRI SHARAD PATEL # ! / REVENUE BY SHRI PRATAP SINGH CIT-DR & SHRI A. RAMACHANDRAN-DR ITA NO. 1076/MUM/2012 M/S PANNA GOLD IMPEX LTD. 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 21/12/2011 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS:- 1. ON THE FACTS AND CI R CUMSTANCES OF THE CASE AND I N LAW THE CIT ( A ) ER R ED I N CONF I RMING THE ACTION OF THE INCOME TAX OFFICER , WARD - 4 ( 3 ) ( 4 ) , M UMBA I O F COMPLET I NG THE ASSESSMENT AND PASSING THE O R DER U/S 147/148 OF THE A C T BY HOLDING THAT THE ASSESSMENT IS NOT BAD I N LAW S I NCE THE RE-OPENING OF THE ASSESSMENT WAS BASED ON PROPER APPLICATION O F MIND AND NOT BASED ON MERE SURMISE AND DOUBTS . 2. ON THE FACTS AND C I R C UMSTANCES OF T HE CASE AND I N LAW THE CIT ( A ) ERRED IN HOLD I NG THAT ORDER PASSED BY THE ITO U/S 147 FOR DISPOSA L OF OB J EC TI ON AGAINST NOTICE U/S 148 I S PROPER , S I NCE THE OBJECTION OF THE ASSESSEE HAS BEEN APPROPRIATELY DEALT WITH BY THE ITO AND THEREF ORE , THE ORDER I S NOT BAD IN LAW . 3. ON THE FACTS AND C I RCUMSTANCES OF THE CASE AND I N LA W THE C IT( A ) ER R ED I N CONF I R M ING THE ACT I ON OF THE ITO OF MAKING ADDITION OF RS. 15 , 00 , 0001 - U / S 68 OF THE ACT , BE I NG THE SHARE APPLICATION MONEY ON THE A LL EGED GROUND THAT THE AMOUNT IS UNEXP L AINED CASH CRED I T ALTHOUGH THE EX I STENCE , IDENT I TY AND CREDIT WORTHINESS OF THE SHARE APPLICANT WAS ESTABL I SHED BY THE ASSESSEE . 4. ON THE FACTS AND CIRCUMSTANCES O F THE C ASE AND I N LAW THE CIT ( A ) ER R ED I N HOLD I NG THAT BY NOT PROVIDING COPIES OF THE STATEMEN T OF MR . NA R ENDRA R SHA H AND BY NO T AL L OWING TH E OPPORTUN I TY TO C R OSS EXAMINING HIM TO THE ASSESSEE , NATURAL JUSTICE HAS NO T BEEN DENIED TO THE ASSESSEE AND THE R EFORE , THE R E - OPEN I NG WHICH I S SO LEL Y BASED ON THE LETTER OF MR . NARENDRA R SHAH TO C I T ( A ) - 37 , MUMBA I AND THE ADDITION OF RS . 1 5 , 00 , 000 1 - ARE N O T BAD IN LA W . 2. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE IS C LOSELY HELD COMPANY, ENGAGED IN THE BUSINESS OF GOLD JEWEL LERY. THE ASSESSEE FILED ORIGINAL RETURN OF INCOME WHICH WAS ITA NO. 1076/MUM/2012 M/S PANNA GOLD IMPEX LTD. 3 PROCESSED U/S 143(1) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) AND NO ASSESSMENT U/S 143(3) OF THE ACT WAS MADE BY THE REVENUE. THE ASSESSING OFFICER RECEIVED INFORMATION THAT THE ASSESSEE COMPANY HAS RECEIVED SHARE APPLICATION MONEY FROM M/S SURYA DEE P SALT REFINERY AND CHEMICAL WORKS LTD., WHICH WAS FOUND T O BE ENGAGED IN PROVIDING ACCOMMODATION ENTRIES PER SHAR E APPLICATION MONEY, ETC. AND THE ASSESSEE WAS ONE OF THE BENEFICIARY OF THE SHARE APPLICATION OF MONEY OF RS .15 LAKH. IT WAS OBSERVED BY THE ASSESSING OFFICER THAT ONE M R. NAREDRA R. SHAH WAS IN CONTROL OF THE M/S SURYA DEE P SALT REFINERY AND CHEMICAL WORKS LTD. ALONG WITH MANY OT HER COMPANIES. A SEARCH AND SEIZURE ACTION WAS CARRIED OUT U/S 132 OF THE ACT, BY THE INVESTIGATION WING AND SAID SHRI NARENDRA R. SHAH WAS FOUND PROVIDING BOGUS FINANCIA L ACCOMMODATION ENTRIES TOWARDS SHARE PROFIT, CAPITA L GAINS, DONATIONS, GIFTS, AND ONE TIME ENTRY BY SHARE APPLI CATION MONEY/SHARE CAPITAL. DURING THE COURSE OF APPELLATE PROCEEDING, THE SAID NARENDRA R. SHAH HAS ADMITTED OF PROVIDING ACCOMMODATION ENTRIES BY VARIOUS CONCERN INCLUDING THE COMPANY M/S SURYA DEEP SALT REFINERY AND CHEMICAL WORKS LTD. THE SAID LIST OF BENEFICIARIES PROVIDED BY SAID SHRI NARENDRA R. SHAH WITH ADDRESS IN WHICH RS.15 LAKHS WAS SHOWN TO HAVE BEEN GIVEN TO THE ASSESSEE BY WAY OF SHARE APPLICATION FROM THE BANK ACCOUNT OF M/S S URYA DEEP SALT REFINERY AND CHEMICAL WORKS LTD. BASED UP ON THIS INFORMATION, THE ASSESSING OFFICER RECORDED TH E REASONS, THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMEN T, ITA NO. 1076/MUM/2012 M/S PANNA GOLD IMPEX LTD. 4 AMOUNTING TO RS.15 LAKH, IN THE CASE OF THE ASSESSE E, AS THE ASSESSEE HAS RECEIVED ACCOMMODATION SHARE ENTRY FRO M THE M/S SURYA DEEP SALT REFINERY AND CHEMICAL WORKS LTD . ACCORDINGLY, NOTICE U/S 148 OF THE ACT WAS ISSUED T O THE ASSESSEE AND ASSESSMENT WAS REOPENED. IT IS PERTINE NT TO MENTION HERE THAT NO ASSESSMENT WAS ORIGINALLY FRAM ED U/S 143(3) OF THE ACT AND RETURN WAS ORIGINALLY PROCESS ED U/S 143(1) OF THE ACT. NOTICE U/S 148 OF THE ACT WAS IS SUED ON 31/03/2010, WHICH WAS BEYOND FOUR YEAR FROM THE END OF THE ASSESSMENT YEAR. REASONS WERE COMMUNICATED TO T HE ASSESSEE IN THE COURSE OF HEARING BY THE ASSESSING OFFICER ON 01/07/2010, TO WHICH THE ASSESSEE FILED OBJECTION T O THE ISSUANCE OF NOTICE U/S 148 OF THE ACT WHICH WAS DEA LT WITH BY SEPARATE ORDER PASSED BY THE ASSESSING OFFICER O N 13/09/2010, BY FOLLOWING THE DIRECTIONS OF HON'BLE SUPREME COURT IN THE CASE OF G. K. N. DRIVESHAFTS (INDIA) L TD. VS INCOME TAX OFFICER IN (2003) 259 ITR 19. THE ASSE SSEE IN THE COURSE OF REASSESSMENT PROCEEDINGS, SUBMITTED T HAT PAYMENT OF RS.15 LAKHS WAS RECEIVED FROM M/S SURYA DEEP SALT REFINERY AND CHEMICAL WORKS LTD. TOWARDS SHARE APPLICATION MONEY VIDE THROUGH BANKING CHANNEL, COP Y OF BOARD RESOLUTION ALONG WITH SHARE APPLICATION, COPY OF ACCOUNTS OF M/S SURYA DEEP SALT REFINERY AND CHEMIC AL WORKS LTD. WITH AN EXPLANATION THAT THE SAID COMPAN Y HAS SHARE CAPITAL OF RS.8 CRORES WHICH IS SUFFICIENT TO PROVE THE CREDITWORTHINESS OF THE SAID COMPANY. ASSESSING OFF ICER WAS NOT SATISFIED WITH THE GENUINENESS OF THE TRANSACTI ON AND NOTICE U/S 133(6) WAS ISSUED TO M/S SURYA DEEP SALT ITA NO. 1076/MUM/2012 M/S PANNA GOLD IMPEX LTD. 5 REFINERY AND CHEMICAL WORKS LTD., TO FURNISH THE DE TAILS OF TRANSACTION. THE SAID COMPANY I.E. M/S SURYA DEEP S ALT REFINERY AND CHEMICAL WORKS LTD. DID NOT FURNISH T HE DETAILS OF TRANSACTIONS WITH THE ASSESSEE TO THE AS SESSING OFFICER IN RESPONSE TO NOTICE U/S 133(6) OF THE ACT . THE ASSESSING OFFICER ASKED THE ASSESSEE TO SUBSTANTIAT E THE GENUINENESS OF THE TRANSACTION AND ASSESSEE REITERA TED THE SAME CONTENTION AS WERE MADE EARLIER. THE LD. ASSES SING OFFICER REJECTED THE CONTENTION OF THE ASSESSEE AND MADE THE ADDITION OF RS. 15 LAKH AS UNEXPLAINED CASH CREDIT IN THE BOOKS OF THE ASSESSEE U/S 68 OF THE ACT. 2.1. THE AGGRIEVED ASSESSEE HAS FILED APPEAL BEFOR E THE LD. CIT(A) AND CHALLENGED THE ISSUANCE OF NOTICE U/ S 148 OF THE ACT. THE ASSESSEE SUBMITTED THAT NO ORIGINAL R ECORDS WERE AVAILABLE WITH THE ASSESSING OFFICER AND REOPE NING HAS BEEN DONE WITHOUT REFERENCE TO THE ORIGINAL RECORD AND IS BEING MADE MERELY ON THE BASIS OF SURMISES AND CONJ ECTURES AND NO SATISFACTION WAS RECORDED TO THE EFFECT THAT INCOME HAS ESCAPED ASSESSMENT AND REOPENING WAS DONE MEREL Y ON THE BASIS THAT INFORMATION WAS RECEIVED FROM INVEST IGATION WING THAT TOO ON THE BASIS OF STATEMENT OF SHRI NA RENDRA R. SHAH, WHO WAS SEARCHED BY THE REVENUE U/S 132 OF TH E ACT. THE LD. COMMISSIONER OF INCOME TAX (APPEAL) REJECTE D THE CONTENTION OF THE ASSESSEE AS THE INFORMATION DIVUL GED BY THE SHRI NARENDRA R. SHAH DURING APPELLATE PROCEEDI NGS, BEFORE CIT(A)-37, THAT HE IS PROVIDING BOGUS ACCOMM ODATION ENTRIES AND NAME OF THE ASSESSEE WAS FOUND MENTIONE D IN ITA NO. 1076/MUM/2012 M/S PANNA GOLD IMPEX LTD. 6 THE DETAILS, FURNISHED BY SAID NARENDRA R. SHAH, WH ICH CONCLUSIVELY PROVES THAT HE IS IN CONTROL OF M/S SU RYA DEEP SALT REFINERY AND CHEMICAL WORKS LTD. AND ALSO ENGA GED IN THE BUSINESS OF PROVIDING ACCOMMODATION ENTRIES. TH US, THE ASSESSING OFFICER HAS ACTED ON SPECIFIC INFORMATION COUPLED WITH CATEGORICAL ADMISSION OF SHRI NARENDRA R. SHAH WHO WAS IN CONTROL OF M/S SURYA DEEP SALT REFINERY AND CHEMICAL WORKS LTD. AND THE SAID COMPANY HAS PROVID ED ACCOMMODATION ENTRIES OF RS.15 LAKH TO THE ASSESSEE WHICH HAS LED TO THE REASON TO BELIEF THAT INCOME HAS ESC APED ASSESSMENT IN THE HANDS OF THE ASSESSEE TO THE TUNE OF RS.15 LAKH LEADING TO REOPENING OF THE ASSESSMENT. THE CONTENTION OF THE ASSESSEE THAT ASSESSING OFFICER H AS NOT GIVEN THE COPY OF STATEMENT OF SHRI NARENDRA R. SHA H AND HAS NOT ALLOWED THE OPPORTUNITY OF CROSS EXAMINE SA ID NARENDRA R. SHAH WAS MET BY LD. COMMISSIONER OF INC OME TAX (APPEAL) BY REMANDING MATTER TO THE ASSESSING O FFICER WITH A DIRECTION TO MAKE NECESSARY ENQUIRY WITH THE COMPANY M/S SURYA DEEP SALT REFINERY AND CHEMICAL WORKS LTD. THE ASSESSING OFFICER ISSUED SUMMONS U/S 131 OF THE ACT TO M/S SURYA DEEP SALT REFINERY AND CHEM ICAL WORKS LTD. AND IN RESPONSE, NEITHER ANYBODY APPEARE D NOR ANY WRITTEN SUBMISSIONS WERE FILED. THE ASSESSING O FFICER HAS ALSO ISSUED NOTICES U/S 133(6) OF THE ACT BUT N O INFORMATION WAS RECEIVED AND NONE APPEARED IN RESPO NSE TO SAID NOTICES. THE ASSESSING OFFICER FURNISHED THE COPY OF LETTER WRITTEN BY SHRI NARENDRA R. SHAH ALONG WITH THE LIST OF BENEFICIARY SUBMITTED BY HIM TO CIT(A)-37, WAS FORW ARDED TO ITA NO. 1076/MUM/2012 M/S PANNA GOLD IMPEX LTD. 7 CIT(A) ALONG WITH REMAND REPORT. THE CIT(A) FORWAR DED THE REMAND REPORT ALONG WITH DOCUMENTS TO THE ASSESSEE. THE ASSESSEE ALSO DID NOT PRODUCE THE ABOVE PARTIES. T HUS, IT WAS OBSERVED BY THE LD. COMMISSIONER OF INCOME TAX (APPEAL) THAT SUFFICIENT OPPORTUNITY WAS GIVEN. THE SAID PARTY SHRI NARENDRA R. SHAH HAS CONFIRMED BEFORE TH E REVENUE THAT HE HAS RECEIVED CASH AGAINST THE SHARE APPLICATION MONEY OF RS.15 LAKH GIVEN TO THE ASSESS EE. WITH RESPECT TO THE SHARE HOLDING OF INVESTMENT OF RS.3,42,25,000/- AS ON 31/03/2004 HELD BY M/S SURYA DEEP SALT REFINERY AND CHEMICAL WORKS LTD, IT WAS O BSERVED BY THE LD. COMMISSIONER OF INCOME TAX (APPEAL) THAT THE BALANCE SHEET OF M/S SURYA DEEP SALT REFINERY AND CHEMICAL WORKS LTD. DID NOT CONTAIN THE NAMES OF TH E VARIOUS COMPANIES/CONCERNS IN WHICH INVESTMENTS ARE MADE. THUS, THE CIT (A) CAME TO THE CONCLUSION THAT ASSESSEE HAS NOT SUBSTANTIATED THE GENUINENESS OF T HE TRANSACTION, CREDIT WORTHINESS AND IDENTITY OF THE PARTY/PARTIES AND HENCE THE ADDITIONS WERE CONFIRME D BY LD. COMMISSIONER OF INCOME TAX (APPEAL) VIDE APPELLATE ORDER DATED 21/12/2011. THE LD. COMMISSIONER OF INCOME TA X (APPEAL) DISTINGUISHED THE CASE LAWS RELIED UPON BY THE ASSESSEE, WHICH ARE DETAILED IN PAGE NO.11 TO 14 OF THE IMPUGNED ORDER. 2.2. AGGRIEVED BY THE DECISION OF THE LD. COMMISSI ONER OF INCOME TAX (APPEAL), THE ASSESSEE IS IN APPEAL B EFORE THE TRIBUNAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTE D BEFORE ITA NO. 1076/MUM/2012 M/S PANNA GOLD IMPEX LTD. 8 US THAT THE ADDITIONS OF RS.15 LAKH HAS BEEN MADE U /S 68 OF THE ACT WITH RESPECT TO THE SHARE APPLICATION MONEY RECEIVED BY THE ASSESSEE FROM M/S SURYA DEEP SALT REFINERY A ND CHEMICAL WORKS LTD. MERELY ON THE BASIS OF STATEMEN T OF SHRI NARENDRA R. SHAH IT WAS SUBMITTED THAT THE ORI GINAL ASSESSMENT WAS NOT FRAMED U/S 143(3) OF THE ACT BUT ORIGINALLY THE RETURN WAS PROCESSED U/S 143(1) OF T HE ACT. THE ASSESSING OFFICER HAVING RECEIVED INFORMATION F ROM THE INVESTIGATION WING BASED UPON THE SEARCH AND SEIZUR E OPERATIONS CARRIED OUT U/S 132 OF THE ACT IN THE C ASE OF SHRI NARENDRA R. SHAH, WHEREIN HE ADMITTED TO HAVE GIVEN ACCOMMODATION ENTRIES TO VARIOUS PARTIES THROUGH VA RIOUS CONCERN CONTROLLED BY HIM IN WHICH THE NAME OF ASSE SSEE ALSO APPEARED IN ONE OF THE CORRESPONDENCE WITH THE LD. COMMISSIONER OF INCOME TAX (APPEAL)-37 IN HIS OWN APPELLATE PROCEEDINGS. IT WAS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE WHOLE REASSESSMENT PROCEE DINGS ARE BAD IN LAW THAT ASSESSING OFFICER DOES NOT HAVE ORIGINAL RECORD AND THE REOPENING HAS BEEN DONE WITHOUT MAKI NG ANY REFERENCE TO THE ORIGINAL RECORDS, WHICH IS BAD IN LAW AS NO CONCLUSION CAN BE DRAWN IN SUCH CIRCUMSTANCES TH AT ANY INCOME HAS ESCAPED ASSESSMENT. THE NOTICE HAS BEEN ISSUED U/S 148 OF THE ACT BEYOND THE PERIOD OF FOUR YEAR F ROM THE END OF THE ASSESSMENT YEAR. IT WAS SUBMITTED THAT THIS IS THE FIRST YEAR OF ASSESSMENT OF THE ASSESSEE AS ASS ESSEE WAS INCORPORATED IN THE PREVIOUS YEAR RELEVANT TO THE I MPUGNED ASSESSMENT YEAR. THE RETURN OF INCOME WAS FILED WI TH INCOME TAX OFFICER-15(1)(1) WHILE THE NOTICE U/S 14 8 WAS ITA NO. 1076/MUM/2012 M/S PANNA GOLD IMPEX LTD. 9 ISSUED BY INCOME TAX OFFICER-4(3)(4). OUR ATTENTION WAS DRAWN TO PAGE 95 OF THE PAPER BOOK FILED BY THE ASS ESSEE WHICH CONTAINS THE REASON FOR REOPENING. IT WAS SUB MITTED THAT NO APPROVAL WAS TAKEN BY THE ASSESSING OFFICER FROM THE LD. CIT AND HENCE WHOLE PROCEEDING ARE BAD IN L AW. OUR ATTENTION WAS ALSO DRAWN TO PAGE NO. 156 OF THE PAP ER BOOK, WHICH IS IN ORDER SHEET ENTRY, WHICH CLEARLY SHOWS THAT THE ASSESSING OFFICER NEVER PERUSED THE RECORDS. OUR AT TENTION WAS ALSO DRAWN TO PAGE 161 TO 163, WHEREIN THE PROP OSAL TO CIT WAS SUBMITTED BY THE ASSESSING OFFICER FOR SEEK ING APPROVAL FOR REOPENING . IT WAS SUBMITTED THAT THESE ARE THE ADDITIONAL PLEAS RAISED BY THE ASSESSEE FOR THE FIR ST TIME BEFORE THE TRIBUNAL AND SINCE THESE ARE LEGAL PLEA, WHICH GOES TO THE ROOT OF THE MATTER, THE SAME SHOULD BE ALLOWED TO BE ARGUED. IT WAS FURTHER SUBMITTED THAT NO AMOUNT HAS BEEN RECEIVED BY THE ASSESSEE FROM SHRI NARENDRA R. SHAH AND ASSESSEE IS NOT AWARE HOW SHRI NARENDRA R. SHAH IS CONNECTED WITH M/S SURYA DEEP SALT REFINERY AND CHE MICAL WORKS LTD.. STATEMENT OF SHRI NARENDRA R. SHAH HAS NOT BEEN PROVIDED TO THE ASSESSEE NOR ANY CONNECTION WA S ESTABLISHED BETWEEN NARENDRA R. SHAH AND SAID M/S S URYA DEEP SALT REFINERY AND CHEMICAL WORKS LTD. AND MERE LY BASED UPON THE STATEMENT/LETTER GIVEN BY SHRI NAREN DRA R. SHAH, DURING APPELLATE PROCEEDING, NO ADDITION CAN BE MADE IN THE HANDS OF THE ASSESSEE. THE ASSESSEE WAS ALSO NOT ALLOWED TO CROSS EXAMINE SAID NARENDRA R. SHAH, WHI CH IS A DIRECT INFRINGEMENT OF PRINCIPLE OF NATURAL JUSTICE AND PREJUDICE HAS BEEN CAUSED TO THE ASSESSEE AS THE ST ATEMENT ITA NO. 1076/MUM/2012 M/S PANNA GOLD IMPEX LTD. 10 OF SHRI NARENDRA R. SHAH WAS NEVER CONFRONTED TO TH E ASSESSEE AND WITHOUT ALLOWING THE CROSS EXAMINATION TO THE ASSESSEE AND HENCE THE REASSESSMENT ORDER U/S 147 R .W.S 143(3) IS NOT SUSTAINABLE IN LAW. IT WAS SUBMITTED THAT SHRI NARENDRA R. SHAH IS NOT CONNECTED WITH THE SAID COM PANY M/S SURYA DEEP SALT REFINERY AND CHEMICAL WORKS LTD . AND ITS ANNUAL RETURN AS AT 30/09/2004 IS PLACED ON REC ORD AT PAGE NO.62 TO 67 OF THE PAPER BOOK. IT WAS SUBMITTE D THAT DESPITE BEING SPECIFICALLY ASKED FOR CROSS EXAMINAT ION, THE REVENUE HAS NOT PROVIDED OPPORTUNITY TO THE ASSESS EE OF CROSS EXAMINATION OF SHRI NARENDRA R. SHAH. OUR AT TENTION WAS INVITED TO THE PAPER BOOK PAGE NO.50, WHEREIN, THE LETTER TO THE ASSESSING OFFICER IS PLACED ON RECORD. IT WA S ALSO SUBMITTED THAT NO STATEMENT WAS RECORDED OF THE ASS ESSEE BY THE REVENUE. 2.3. ON THE OTHER HAND, THE LD. DR, , RELIED UPON THE ORDER OF THE CIT(A) AND CONFIRMED THAT NO CASE RECO RD IS AVAILABLE WITH THE ASSESSING OFFICER WITH RESPECT T O THE ORIGINAL ASSESSMENT RECORDS AND PROCESSING OF THE R ETURN U/S 143(1) OF THE ACT. HE ALSO CONFIRMED THAT NO S TATEMENT OF THE ASSESSEE WAS RECORDED BY THE REVENUE. 2.4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE O BSERVED THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF GOL D JEWELLERY AND IS CLOSELY HELD COMPANY INCORPORATED ON 11/08/2 003 AND THIS IS THE FIRST YEAR OF ASSESSMENT OF THE AS SESSEE. THE ORIGINAL ASSESSMENT WAS NOT FRAMED U/S 143(3) OF TH E ACT ITA NO. 1076/MUM/2012 M/S PANNA GOLD IMPEX LTD. 11 WHILE THE RETURN OF INCOME WAS PROCESSED U/S 143(1) OF THE ACT. THE ASSESSING OFFICER HAS RECEIVED INFORMATION FROM THE INVESTIGATION WING, BASED UPON SEARCHED AND SEIZURE OPERATION U/S 132 OF THE ACT, IN THE CASE OF SHRI N ARENDERA R. SHAH, THAT HE IS ENGAGED IN BUSINESS OF PROVIDIN G ACCOMMODATION ENTRIES IN LIEU OF CASH, THROUGH VARI OUS CONCERNS, CONTROLLED BY HIM AND HE HAS CONFIRMED TO HAVE PROVIDED SHARE APPLICATION MONEY OF RS.15 LAKH, AS ACCOMMODATION ENTRIES, IN LIEU OF CASH, TO THE ASSE SSEE DURING THE PREVIOUS YEAR RELEVANT TO THE IMPUGNED ASSESSMENT YEAR. THE CASE OF THE ASSESSEE WAS REOPE NED U/S 147/148 OF THE ACT, BASED UPON THE INFORMATION RECEIVED FROM THE INVESTIGATION WING AS SET OUT ABO VE. THE NOTICES U/S 133(6) WERE ISSUED BY THE ASSESSING OFF ICER TO VERIFY THE GENUINENESS OF THE TRANSACTION, WHICH RE MAIN UN- COMPLIED WITH. FURTHER SUMMONS WERE ISSUED U/S 131 OF THE ACT BY THE ASSESSING OFFICER AND AGAIN THERE WA S NO COMPLIANCE WITH RESPECT TO THESE SUMMONS. THE ASSES SEE WAS ASKED TO PRODUCE THE PARTY, WHICH ASSESSEE FAIL ED TO DO SO DURING THE PROCEEDINGS BEFORE THE AUTHORITIES BE LOW. THE ASSESSEE HAS SUBMITTED COPIES OF SHARE APPLICATION, BANK STATEMENT, DETAIL OF PAN OF M/S SURYA DEEP SALT REF INERY AND CHEMICAL WORKS LTD., HOWEVER, IN VIEW OF THE INCRIMINATING EVIDENCE/BY WAY OF STATEMENT OF SHRI NARENDRA R. SHAH, THE REVENUE HAS DOUBTED THE GENUINENESS OF THE TRANSACTION. ONCE THE REVENUE H AS DOUBTED THE GENUINENESS OF THE TRANSACTION, THE ONU S SHIFTS BACK TO THE ASSESSEE TO PROVE BY THE COGENT ITA NO. 1076/MUM/2012 M/S PANNA GOLD IMPEX LTD. 12 EVIDENCES/MATERIAL THAT THE ABOVE SAID TRANSACTION IN SHARES WAS GENUINE. THE ASSESSEE DURING THE COURSE OF PRO CEEDINGS BEFORE US HAS RAISED LEGAL ISSUES WHICH GOES TO THE ROOT OF THE MATTER THAT THE ASSESSING OFFICER HAS DOES NOT HAVE THE ORIGINAL RECORDS OF THE ASSESSMENT AND ALSO THAT NO APPROVAL OF CIT WAS TAKEN BEFORE REOPENING OF THE ASSESSMENT . FURTHER CONTENTION WAS RAISED THAT THE STATEMENT OF SHRI NARENDERA R. SHAH WAS NOT PROVIDED TO THE ASSESSEE NOR OPPORTUNITY TO CROSS EXAMINE SAID NARENDRA R SHAH W AS GIVEN TO THE ASSESSEE. FURTHER THE ASSESSEE HAS RAI SED THE CONTENTION THAT SAID NARENDRA R. SHAH IS NOT CONNEC TED WITH M/S SURYA DEEP SALT REFINERY AND CHEMICAL WORKS LTD .. ALL THESE CONTENTIONS ARE LEGAL CONTENTION, WHICH REQUI RES INVESTIGATION OF FACTS, THEREFORE, THE INTEREST OF JUSTICE WILL BE BEST SUB SERVED IF THE MATTER IS SET-ASIDE AND REST ORED TO THE FILE OF THE ASSESSING OFFICER TO DENOVO DETERMINE T HE ISSUE ON MERITS AFTER GIVING OPPORTUNITY OF BEING HEARD TO T HE ASSESSEE. THE ASSESSING OFFICER IS DIRECTED TO PROV IDE THE COPY OF STATEMENT OF SHRI NARENDRA R. SHAH TO THE A SSESSEE AND ALLOW CROSS EXAMINATION OF SHRI NARENDRA R. SHA H. THE ASSESSEE SHALL BE ALLOWED TO RAISE ALL LEGAL CONTEN TIONS AND BE ALLOWED TO SUBMIT ALL NECESSARY AND RELEVANT EVI DENCES IN SUPPORT OF ITS CONTENTIONS BEFORE THE ASSESSING OFF ICER IN REMAND PROCEEDINGS. WE WOULD LIKE TO CLARIFY AT THI S STAGE THAT ONCE THE REVENUE HAS DOUBTED THE GENUINENESS O F THE TRANSACTION WITH INCRIMINATING MATERIAL, THE ONUS S HIFTS BACK TO THE ASSESSEE TO PROVE BY COGENT MATERIAL TH AT THE SAID SHARE TRANSACTION IS GENUINE. NEEDLESS TO MENT ION HERE ITA NO. 1076/MUM/2012 M/S PANNA GOLD IMPEX LTD. 13 THAT THE ASSESSEE BE PROVIDED DUE OPPORTUNITY OF BE ING HEARD WITH FURTHER LIBERTY TO FURNISH NECESSARY EVI DENCE, IF ANY, IN SUPPORT OF ITS CLAIM. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 01/12/2016. SD/- SD/- ( RAJESH KUMAR ) (JOGINDER SINGH) '!# / ACCOUNTANT MEMBER $!# /JUDICIAL MEMBER $ MUMBAI; ( DATED : 28/12/2016 F{X~{T? P.S / /. .. %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. *+,- / THE APPELLANT (RESPECTIVE ASSESSEE) 2. ./,- / THE RESPONDENT. 3. 0 0 1' ( *+ ) / THE CIT, MUMBAI. 4. 0 0 1' / CIT(A)- , MUMBAI, 5. 3#4 .' , 0 *+& * 5 , $ / DR, ITAT, MUMBAI 6. 6 7$ / GUARD FILE. ! / BY ORDER, /3+' .' //TRUE COPY// /! (DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI
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