SHIVANAND KOMAL SINGH, MUMBAI V. DCIT CEN CIR 6, MUMBAI

ITA 1407/MUM/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7983 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-07-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2006-2007
• Appeal Filed On: 28-02-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R MANJUNATHA SWAMY
• Assessee Lawyers: B N RAO
• Keywords: Accommodation entries; Retraction

Judgement Text

1 ITA 1407/MUM/2017 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E, MUMBAI BEFORE SHRI PAWAN SINGH (JUDICIAL MEMBER) AND SHRI G MANJUNATHA (ACCOUNTANT MEMBER) ITA NO.1407/MUM/2017 (ASSESSMENT YEAR : 2006-07) SHI SHIVANAND KOMAL SINGH PROP. M/S CHANCHAL TUBE CORPORATION, 123/979, MOTILAL NAGAR, GOREGAON (W), MUMBAI-400 017 PAN : AVFPS0644A VS DY.CIT, CENT.CIR.6, MUMBAI APPELLANT RESPONDEDNT APPELLANT BY SHRI B.N. RAO RESPONDENT BY SHRI R MANJUNATHA SWAMY DATE OF HEARING 11-07-2019 DATE OF PRONOUNCEMENT 14-07-2019 O R D E R PER G MANJUNATHA, AM : THIS APPEAL BY ASSESSEE U/S 253 OF INCOME-TAX ACT, 1961 IS DIRECTED AGAINST THE ORDER OF CIT(A)-47, MUMBAI DATED 30-12- 2016 FOR AY 2006-07. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE: 1. THE ASSESSING OFFICER ERRED IN INVOKING P ROVISIONS OF SECTION 153 C OF THE I T ACT, 1961 WHICH IS AB INITIO VOID AND BAD IN LAW. 2 ITA 1407/MUM/2017 2. THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS) ERRED IN UPHOLDING THE ADDITION MADE* FRY THE ASSESSING OFFICER TO THE EXT ENT OF 1% COMMISSION ON THE ALLEGEDBOGUS BILLS PROVIDED BY THE APPELLANT. 2. AT THE OUTSET OF HEARING, THE LD.AR FOR THE ASSE SSEE SUBMITS THAT GROUNDS OF APPEAL RAISED BY ASSESSEE ARE COVERED AG AINST THE ASSESSEE BY THE ORDER OF TRIBUNAL IN ASSESSEES OWN CASE FOR AYS 2 007-08 TO 2012-13 IN ITA NO.1859 TO 1864/MUM/2016 DATED 11-04-2018. THE LD. AR FOR THE ASSESSEE ALSO FURNISHED COPY OF ORDER OF TRIBUNAL. ON THE O THER HAND, THE LD.DR FOR THE REVENUE SUBMITS THAT BY FOLLOWING THE ORDER OF TRIB UNAL FOR AYS 2007-08 TO 2012-13, THE APPEAL FOR THE YEAR UNDER CONSIDERATIO N MAY ALSO BE DISMISSED. 3. WE HAVE CONSIDERED THE SUBMISSION OF BOTH THE PA RTIES AND IT IS SEEN THAT ALMOST ON SIMILAR GROUNDS OF APPEAL, THE APPEA LS OF ASSESSEE FOR AYS 2007- 08 TO 2012-13 WERE DISMISSED BY CO-ORDINATE BENCH O F TRIBUNAL BY HOLDING AS UNDER:- 8. UP ON CAREFUL CONSIDERATION WE FIND THAT FACTS OF THE CASE AND THE MATERIALS FOUND BY THE DEPARTMENT AND THE ADMISSION OF THE ASSESSEE AN D ITS CONNECTED PERSONS CLEARLY INDICATE THAT ASSESSEE HAS BEEN OPERATING THE BUSIN ESS OF PROVIDING BOGUS ACCOMMODATION ENTRIES. THE BOOKS OF ACCOUNT FINANCI AL STATEMENT HAS BEEN FOUND TO BE FALSELY MAINTAINED. INCRIMINATING MATERIALS IN THIS REGARD WERE DULY FOUND IN SEARCH. CONSEQUENT TO WHICH ACTION U/S 153C HAS BEEN TAKEN IN THIS CASE. DESPITE RAISING A GROUND CHALLENGING THE VALIDITY OF ACTION U/S 153C, THE ASSESSEE HAS NOT PRESSED THE SAME. IN THIS VIEW OF THE MATTER WHEN THE ASSESSEE IS CLEARLY ENGAGED INTO BOGUS ACCOMMODATION ENTRY AND THERE IS NO DISPUTE TO THE SAME; ASSEESSEE'S RELIANCE UPON THE DECISION OF HONBLE APEX COURT IN THE ABOVE CAS E OF S KADER KHAN (SUPRA) CANNOT OXYGENATE CASE OF THE ASSESSEE. IN THE SAID DECISIO N OF THE HONBLE APEX COURT THERE WAS RETRACTION WITHIN FOUR DAYS AND THERE WAS NO CORROB ORATING MATERIAL FOUND. THIS IS NOT AT ALL THE CASE IN THE PRESENT CASE. AS REGARDS THE CL AIM OF REDUCTION IN THE RATE OF ADDITION WE FIND THAT REVENUE IS NOT IN APPEAL AGAINST THE R EDUCTION GRANTED BY THE LEARNED CIT-A. IN OUR CONSIDERED OPINION LD CIT-A HAS BEEN FAIRLY LIBERAL IN GRANTING RELIEF TO THE ASSESSEE. AS HELD BY THE HONBLE APEX COURT IN THE CASE OF LEAVE, KALE KHAN H. MOHAMMED VS CIT 50 ITR 1, WHEN ASSESSEE CLAIMS THAT A SUM RECEIVED IS NOT TAXABLE 3 ITA 1407/MUM/2017 ONUS IS UPON HIM TO PROVE THAT THE SAME IS NOT EXIG IBLE TO TAX. HERE WE FIND THAT ASSESSEE HAS INDULGED IN BOGUS ACCOMMODATION ENTRIE S AND HAS RECEIVED HUGE TURNOVER. THE LEARNED CIT-A IS TAXING ONLY 0.85% AS PROFIT OU T OF THE SAME. IN OUR CONSIDERED OPINION THE ASSESSEE HAS NOT DISCHARGED ITS ONUS AS PER RATIO OF ABOVE HONBLE APEX COURT DECISION. WE FIND THAT THE ORDER OF LEARNED C IT-A IS REASONABLE AND DOES NOT NEED ANY INTERFERENCE ON OUR PART. 4. CONSIDERING THE DECISION OF TRIBUNAL IN ASSESSEE S OWN CASE FOR AYS 2007-08 TO 2012-13, ON SIMILAR SET OF FACTS ON SIMI LAR GROUND OF APPEAL AND THE FACT THAT THE LD.AR OF THE ASSESSEE HIMSELF HAS REL IED UPON THE ORDER OF THE TRIBUNAL, THEREFORE, WE DO NOT FIND ANY MERIT IN TH E GROUND OF APPEAL RAISED BY ASSESSEE. 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11-07-2019. SD/- SD/- ( G. MANJUNATHA) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIALMEMBER MUMBAI, DT : 11 TH JULY, 2019 PK/- COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR /TRUE COPY/ BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI