ACIT CC-XXX, KOL, Kolkata V. M/s Patangi Trade & Holdings Pvt. Ltd., Kolkata

ITA 1533/KOL/2012

• Counselvise Citation: 153323514 RSA 2012
• Duration Of Justice: 1 year(s) 10 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-09-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 26-08-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 25-10-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AJAY KUMAR SINGH
• Assessee Lawyers: A K TIBREWAL
• Keywords: Bogus Share capital; Income from undisclosed sources; Document seized; Accommodation entries; Reason to believe; Documents seized; Reassessment proceedings
• Section: 147; 68; 69; 148; 153A; 234B; 133(6)

Judgement Text

I.T.A. NOS. 1533-1537, 1541-1544, 1547-1575/KOL./2012 & C.O. NOS. 110-141/KOL/2012 ASSESSMENT YEAR: 2004-05 TO 2009-1 0 PAGE 1 OF 30 , B IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH: KOL KATA () , !'!# 1%& , BEFORE HONBLE SRI SHA MIM YAHYA, AM & HONBLE SRI GEORGE MATHAN, JM ' / ITA NOS.1533 TO 1537/KOL/2012 ASSESSMENT Y EARS 2004-05, 20O5-06, & 2007-08 TO 2009-10 ASSISTANT COMMISSI ONER OF INCOME TAX, CENTRAL CIRCLE-XXX, KOLKATA, AAYKAR BHAWAN, POORVA, 4 TH FLOOR, 110 SHANTIPALLY, KOLKATA-700 107 VS. M/S. PATANGI TRADE & HOLDINGS PVT. LTD., 9/12 LALBAZAR STREET, BLOCK-E, 2 ND FLOOR, KOLKATA-700 001 [PAN : AABCP 6834 H] APPELLANT/DEPARTMENT RESPONDENT/ASSESSEE C.O NOS. 137 TO 141/KOL/2012 [A/O / ITA NOS. 1533 TO 1537KOL/2012 A.YS. 2004-05, 20O 5-06, & 2007-08 TO 2009-10 M/S. PATANGI TRADE & HOLDINGS PVT. LTD., 9/12 LALBAZAR STREET, BLOCK-E, 2 ND FLOOR, KOLKATA-700 001 [PAN : AABCP 6834 H] VS. DEPUTY COMMISSI O NER OF INCOME TAX, CENTRAL CIRCLE-XXX, KOLKATA, AAYKAR BHAWAN POORVA, 4 TH FLOOR, 110 SHANTIPALLY, KOLKATA-700 107 CROSS OBJECTOR/ASSESSEE RESPONDENT/DEPARTMENT ' / ITA NOS.1541 TO 1544/KOL/2012 ASSESS MENT YEARS 2005-06,06-07, 07-08, 09-10 ACIT,CC - XXX, KOLKATA VS. M/S. SHREE SUDRASHAN CASTING PVT. LTD. PAN; AADCS 9429B APPELLANT/DEPARTMENT RESPONDENT/ASSESSEE C.O NOS. 131 TO 134/KOL/2012 [A/O / ITA NOS. 1541 TO 1544/KOL/2012 A.YS. 2005-06,06 -07, 07-08, 09-10 M/S. SHREE SUDRASHAN CASTING PVT. LTD., PAN : AADCS 9429 B VS. DCIT,CC-XXX, KOLKATA I.T.A. NOS. 1533-1537, 1541-1544, 1547-1575/KOL./2012 & C.O. NOS. 110-141/KOL/2012 ASSESSMENT YEAR: 2004-05 TO 2009-1 0 PAGE 2 OF 30 CROSS OBJECTOR/ASSESSEE RESPONDENT/DEPARTMENT ' / ITA NOS.1547 & 1548//KOL/2012 ASSESSMENT YEARS 2005-06 & 2006-07 ACIT,CC - XXX, KOLKATA VS. M/S. HOPEFUL MERCHANTS PVT. LTD PAN : AAACH 7696 C APPELLANT/DEPARTMENT RESPONDENT/ASSESSEE ] C.O NOS. 135 & 136/KOL/2012 [A/O ITA NOS. 1547 & 1548//KOL/2012 A.YS 2005-06 & 06- 07] M/S. HOPEFUL MERCHANTS PVT. LTD PAN; AAACH 7696C VS. DCIT,CC-XXX, KOLKATA CROSS OBJECTOR/ASSESSEE RESPONDENT/DEPARTMENT ' / ITA NOS.1549-1550/KOL/2012 ASSESSMENT YEARS 2006-07 & 2007-08 ACIT,CC-XXX, KOLKATA VS. M/S. PICADELLY TR ADE & HOLDINGS PVT. LTD PAN; AABCP 5669 G APPELLANT/DEPARTMENT RESPONDENT/ASSESSEE C.O NOS. 116 TO 117/KOL/2012 [A/O / ITA NOS. 1549-1550/KOL/2012 A.YS 2006-07 & 2007-0 8] M/S. PICADELLY TRADE & HOLDINGS PVT. LTD. PAN; AABCP 5669G VS. D.C.I.T,CC XXX, KOLKATA CROSS OBJECTOR/ASSESSEE RESPONDENT/DEPARTMENT ' / ITA NO. 1551/KOL/2012 ASSESSMENT YEAR 2010-11 ACIT,CC - XXX, KOLKATA VS. M/S. SUNIYOJIT DISTRIBUTORS P VT. LTD I.T.A. NOS. 1533-1537, 1541-1544, 1547-1575/KOL./2012 & C.O. NOS. 110-141/KOL/2012 ASSESSMENT YEAR: 2004-05 TO 2009-1 0 PAGE 3 OF 30 PAN : AANCS 3415 R APPELLANT/DEPARTMENT RESPONDENT/ASSESSEE ' / ITA NOS.1552 TO 1558/KOL/2012 A.YS. 2004-05, 05-06,06-07, 07-08, 08-09, 09-1 0 & 10-11 ACIT,CC - XXX, KOLKATA VS. M/S. SHAKTIRAJ HOLDING & CONSTRUCTION PVT. LTD PAN AADCS 7143J APPELLANT/DEPARTMENT RESPONDENT/ASSESSEE C.O NOS. 110 TO 115/KOL/2012 [A/O ITA NOS.1552 TO 1557/KOL/2012 A.YS. 2004-05, 05-06 ,06-07, 07-08, 08-09, 09-10] M/S. SHAKTIRAJ HOLDING & CONSTRUCTION P. LTD PAN AADCS 7143J VS. D.C.I.T, CC-XXX, KOLKATA CROSS OBJECT OR/ ASSESSEE RESPONDENT/DEPARTMENT ' / ITA NOS. 1559 TO 1564/ KOL/2012 A.YS. 2004-05, 05-06,06-07, 07-08, 09-10 & 10 -11 ACIT,CC-XXX, KOLKATA VS. M/S. NAVENEEL IS PAT PVT. LTD PAN: AABCN6278K APPELLANT/DEPARTMENT RESPONDENT/ASSESSEE C.O NOS. 120 TO 124/KOL/2012 [A/O ITA NOS. 1559 TO 1563/KOL/2012 A.YS. 2004-05, 05-0 6,06-07, 07-08, 09-10 ] M/S. NAVENEEL ISPAT P.LTD PAN: AABCN6278K VS. D.C.I.T, CC-XXX, KOLKATA CROSS OBJECTOR/ ASSESSEE RESPONDENT/DEPARTMENT '/ ITA NOS.1565 TO 1568/KOL/2012 A.YS. 2004-05, 05-06,06-07, & 07-08 ACIT,CC-XXX, KOLKATA M/S. HAMILTON DISTRIBUTORS PV T. LTD I.T.A. NOS. 1533-1537, 1541-1544, 1547-1575/KOL./2012 & C.O. NOS. 110-141/KOL/2012 ASSESSMENT YEAR: 2004-05 TO 2009-1 0 PAGE 4 OF 30 PAN AAACH7638C APPELLANT/DEPARTMENT RESPONDENT/ASSESSEE C.O NOS. 125 TO 128/KOL/2012 [A/O. ITA NOS. 1565 TO 1568/KOL/2012 A.YS. 2004-05, 05-06,06-07, & 07-08] M/S. HAMILTON DISTRIBUTORS P.LTD PAN AAACH7638C D.C.I.T, CC-XXX, KOLKATA CROSS OBJECTOR/ASSESSEE RESPONDENT/DEPARTMENT ' / ITA NOS. 1569 TO 1571/KOL/2012 A.YS. 2007-08,0 8-09 & 10-11 ACIT,CC-XXX, KOLKATA VS. M/S. SUKHSAGAR SA LES PVT. LTD PAN: AAKCS7800B APPELLANT/ASSESSEE RESPONDENT/DEPARTMENT C.O NOS. 118 & 119/KOL/2012 [A/O ITA NOS.1569 & 1 570/KOL/2012 A.Y 2007-08 & 08-09]. M/S. SUKHSAGAR SALES P VT . LTD PAN: AAKCS 7800 B VS. D.C.I.T, CC - XXX, KOL KATA CROSS OBJECTOR/ASSESSEE RESPONDENT/DEPARTMENT ' / ITA NOS. 1572 & 1573/KOL/2012 A.YS. 2007-08 & 10-11 ACIT,CC-XXX, KOLKATA VS. M/S. PUSPANJALI ME RCHANTS PVT. LTD PAN: AAECP2312H APPELLANT/DEPARTMENT RESPONDENT/ASSESSEE ' / ITA NOS. 1574 & 1575/KOL/2012 A.YS. 2005-06 & 06-07 ACIT,CC-XXX, KOLKATA VS. M/S. UDAIPURIA CO MMODITIES PVT. LTD PAN: AAACU3190N APPELLANT/DEPARTMENT RESPONDENT/ASSESSEE C.O NOS.129 & 130/KOL/2012 [A/O ITA NOS.1574 & 1575/KOL/2012 A.YS. 2005 -06 & 06-07]. I.T.A. NOS. 1533-1537, 1541-1544, 1547-1575/KOL./2012 & C.O. NOS. 110-141/KOL/2012 ASSESSMENT YEAR: 2004-05 TO 2009-1 0 PAGE 5 OF 30 M/S. UDAIPURIA COMMODITIES PV T. LTD PAN: AAACU3190N VS. D.C.I.T, CC - XXX, KOL KATA CROSS OBJECTOR/ASSESSEE RESPONDENT/DEPARTMENT APPEARANCES BY: SHRI AJAY KUMAR SINGH, CIT, D.R., FOR THE DEPARTMENT SHRI A.K. TIBREWAL, FCA, FOR THE ASSESSEES DATE OF CONCLUDING THE HEARING : SEPTEMBER 02, 201 4 DATE OF PRONOUNCING THE ORDER : SEPTEMBER 12, 2014 O R D E R PER GEORGE MATHAN: THESE ARE THE APPEALS FILED BY THE REVENUE AGAINST THE ORDERS OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AND THE CR OSS OBJECTIONS FILED THEREON BY THE ASSESSEES. 2. IT WAS SUBMITTED BY THE LD. CIT (D.R.) AND THE L D. A.R. ON BEHALF OF THE ASSESSEES THAT THE FACTS IN ALL THE CASES ARE I DENTICAL AND IF ONE OF THE APPEALS IS DECIDED, IT WOULD COVER ALL THE OTHER AP PEALS ALSO. CONSEQUENTLY IT WAS THE SUBMISSION BY THE LD. A.R. ON BEHALF OF THE ASSESSEES THAT THE APPEALS OF THE ASSESSEE IN THE C ASE OF PATANGI TRADE & HOLDINGS PVT. LTD. AS ALSO THE CROSS OBJECTIONS THE RETO MAY BE TAKEN AS THE BASE APPEAL. 3. SHRI AJAY KUMAR SINGH, LD. CIT (D.R.) REPRESENTE D ON BEHALF OF THE REVENUE AND SHRI A.K. TIBREWAL, FCA, REPRESENTED ON BEHALF OF THE ASSESSEES IN THESE BUNCH OF APPEALS. 4. IN THE CROSS OBJECTIONS FILED BY THE ASSESSEE, T HE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- (1) THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) E RRED IN HOLDING THAT THERE WAS A VALID SEARCH UNDER SECT ION I.T.A. NOS. 1533-1537, 1541-1544, 1547-1575/KOL./2012 & C.O. NOS. 110-141/KOL/2012 ASSESSMENT YEAR: 2004-05 TO 2009-1 0 PAGE 6 OF 30 132 OF THE INCOME TAX ACT, 1961 IN THE CASE OF THE RESPONDENT ASSESSEE AND THEREFORE, THE ASSESSING OF FICER LEGALLY ASSUMED JURISDICTION FOR ISSUE OF NOTICES U NDER SECTION 153A OF THE INCOME TAX ACT, 1961 FOR THE SI X ASSESSMENT YEARS. (2) THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) E RRED IN HOLDING THAT THE IMPUGNED ASSESSMENT ORDER PASSE D BY THE ASSESSING OFFICER UNDER SECTION 153A OF THE SAI D ACT WAS LEGAL IN PURSUANCE TO SEARCH CONDUCTED AT THE PREMISES OF BANK IN PURSUANCE TO WARRANT OF AUTHORISATION ISSUED IN THE NAME OF A/C. NO. 6323 WITH AXIS BANK LTD., LAKE TOWN, KOLKATA OF M/S. PATANGI TRADE & HOLDINGS PVT. LTD. AND A/C. NO. 03828640000291 WITH HDFC BANK, G.C. AVENUE BRANCH, KOLKATA-13 WITH M/S. PATANGI TRADE & HOLDINGS PVT. LTD.. (3) THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) E RRED IN RELYING ON THE DECISION OF HONBLE DELHI BENCH O F TRIBUNAL IN THE CASE OF SHIVNATH RAI HARNARAIN (IND IA) VS.- DCIT (2008) 117 TTJ (DEL) 480 JUSTIFYING THE V ALIDITY OF IMPUGNED ASSESSMENT ORDER PASSED UNDER SECTION 1 53A OF THE ACT, WITHOUT CONSIDERING VARIOUS OTHER DECIS IONS INCLUDING DECISIONS OF JURISDICTIONAL TRIBUNAL REFE RRED TO BY THE RESPONDENT ASSESSEE BEFORE HIM WITH REGARD T O ABATEMENT AND/OR PENDING ASSESSMENTS ON THE DATE OF IN INITIATION OF SEARCH WITHIN THE MEANING OF SECOND P ROVISO TO SECTION 153A OF THE ACT. (4) THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) E RRED IN CONFIRMING THE CHARGEABILITY OF INTEREST UNDER S ECTION 234B OF THE INCOME TAX ACT, 1961. 5. IT WAS THE SUBMISSION BY THE LD. A.R. ON BEHALF OF THE ASSESSEE THAT IN THE CROSS OBJECTIONS, GROUNDS NO. 1 & 2 WERE AGA INST THE SEARCH PROCEEDINGS ITSELF IN SO FAR AS NO VALID SEARCH HAD BEEN CONDUCTED ON THE ASSESSEE. IN RESPECT OF GROUND NO. 3, IT WAS THE SU BMISSION THAT THE ISSUE WAS THAT NO INCRIMINATING DOCUMENT HAD BEEN FOUND I N THE COURSE OF SEARCH AND CONSEQUENTLY NO PROCEEDINGS UNDER SECTIO N 153A COULD HAVE BEEN INITIATED IN THE CASE OF THE ASSESSEE. IT WAS THE FURTHER SUBMISSION THAT GROUND NO. 4 WAS AGAINST THE LEVY OF INTEREST UNDER SECTION 234B OF THE ACT. I.T.A. NOS. 1533-1537, 1541-1544, 1547-1575/KOL./2012 & C.O. NOS. 110-141/KOL/2012 ASSESSMENT YEAR: 2004-05 TO 2009-1 0 PAGE 7 OF 30 6. IT WAS THE SUBMISSION THAT IN RESPECT OF GROUNDS NO. 1 & 2, THE PANCHNAMA CLEARLY SHOWED THAT THE WARRANT WAS ON TH E BANK ACCOUNT. LD. A.R. DREW OUR ATTENTION TO PAGE NO. 2 AND PAGE NO. 8 OF THE PAPER BOOK. IT WAS THE SUBMISSION THAT PAGE 2 WAS THE PANCHNAMA IN RESPECT OF THE SEARCH ON ACCOUNT NO. 6323 OF AXIS BANK LTD., LAKE TOWN BRANCH, KOLKATA OF M/S. PATANGI TRADE & HOLDINGS PVT. LTD. AND PAGE 8 WAS THE COPY OF THE WARRANT OF PANCHNAMA IN RESPECT OF THE WARRANT ON A CCOUNT NO. 03828640000291 WITH HDFC BANK, G.C. AVENUE BRANCH, KOLKATA-13 OF M/S. PATANGI TRADE & HOLDINGS PVT. LTD. IT WAS THE SUBMISSION THAT THE SAID PANCHNAMAS CLEARLY SHOWED THAT THE SEARCH WAS NOT ON THE ASSESSEE M/S. PATANGI TRADE & HOLDINGS PVT. LTD. BUT THE BAN K ACCOUNTS AS MENTIONED IN THE PANCHNAMA. IT WAS THE FURTHER SUBM ISSION THAT THE SEARCH WARRANTS HAVE BEEN EXECUTED ON THE BANK MANA GER OF THE SAID BRANCHES OF THE BANKS. IT WAS THE SUBMISSION THAT I T IS THE BANK MANAGERS, WHO HAVE SIGNED THE PANCHNAMAS AS EVIDENC ING THE EXECUTION OF THE WARRANT. IT WAS THUS THE SUBMISSION THAT THE SEARCHES IN THE CASE OF THE ASSESSEE HAD NOT TAKEN PLACE. IT WAS THE FURTHE R SUBMISSION THAT ALL THAT WAS DONE BY THE EXECUTION OF THE SEARCH WARRAN T AND THE DRAWING OF THE PANCHNAMA WAS THE SEIZURE OF THE BALANCES AS AV AILABLE IN THE SAID TWO BANK A/CS. IT WAS THE SUBMISSION 153A REQUIRED THE PRE-CONDITION THAT THE SEARCH OR REQUISITION MUST BE IN THE CASE OF THE ASSESSEE AND THE SEARCH ON THE BANK A/CS. AND THE BANK PREMISES WAS NOT A SEARCH ON THE ASSESSEE NOR WERE ANY INCRIMINATING DOCUMENT FOUND IN THE COURSE OF THE SEARCH. LD. A.R. FURTHER DREW OUR ATTENTION TO PAGE NO.13 OF THE PAPER BOOK, WHICH WAS THE COPY OF THE NOTICE UNDER SECTIO N 153A, WHICH MENTIONED THAT THE SEARCH WAS ON THE OFFICE PREMISE S. IT WAS THE SUBMISSION THAT THERE WAS NO SEARCH ON THE OFFICE P REMISES OF THE ASSESSEE AND THERE IS NO SEARCH WARRANT ON THE OFFI CE PREMISES OF THE ASSESSEE NOR IS THERE PANCHNAMA IN RESPECT OF THE E XECUTION OF SUCH A SEARCH WARRANT. LD. A.R. PLACED RELIANCE ON THE FOL LOWING DECISIONS TO I.T.A. NOS. 1533-1537, 1541-1544, 1547-1575/KOL./2012 & C.O. NOS. 110-141/KOL/2012 ASSESSMENT YEAR: 2004-05 TO 2009-1 0 PAGE 8 OF 30 SUPPORT HIS CONTENTION THAT THE SEARCH AND THE CONS EQUENTIAL PANCHNAMA DRAWN IN RESPECT OF THE BANK A/C. DID NOT AMOUNT TO THE SEARCH ON THE ASSESSEE:- (1) MAHESH KUMAR NANGALIA VS.- ACIT, CENTRAL CIRCL E, KOLKATA- ITA NOS. 78/KOL./2012 & 79/KOL/2012; (2) C. RAMAIAH REDDY-VS.- ASSISTANT COMMISSIONER OF INCOME TAX- (2011) 339 ITR 210 (KAR.)-KARNATAKA HC HEAD NOTES ONLY; (3) COMMISSIONER OF INCOME TAX VS.- SMT. SUBBALAKS HMI (2011) 202 TAXMAN 448 (KAR)-KARNATAKA HC; (4)SIKSHA O ANUSANDHAN VS.- COMMISSIONER OF INCO ME TAX (2011) 336 ITR 112 (ORISSA)- ORISSA HC; (5) DR. MANSUKH KANJIBHAI SHAH VS.- ASSISTANT COMMISSIONER OF INCOME TAX- (2011) 129 ITD 376 (AHD.) (AHMEDABAD ITAT); (6) SMT. JYOTI AGRAWAL VS.- ASSISTANT COMMISSIONER OF INCOME TAX ITA NOS. 82, 83 AND 91/IND/2006-07 INDORE ITAT; (7) PARMA RAM BHAKAR VS.- DEPUTY COMMISSIONER OF INCOME TAX [2013] 39 TAXMAN.COM 119 (JODHPUR TRIB.); (8) COMMISSIONER OF INCOME TAX-II VS.- RAMESH D. PATEL [2014] 42 TAXMANN.COM 540 (GUJARAT) IT WAS THUS THE SUBMISSION THAT 153A PROCEEDINGS WE RE LIABLE TO BE QUASHED ON ACCOUNT OF THE FACT THAT THERE WAS NO SE ARCH ON THE ASSESSEE. 7. IN RESPECT OF GROUND NO. 3. IT WAS THE SUBMISSIO N THAT NO INCRIMINATING DOCUMENT WAS FOUND IN THE SEARCH ON T HE BANK ACCOUNTS AS MENTIONED IN THE PANCHNAMA. IT WAS THE FURTHER SUBM ISSION THAT THE SAID BANK ACCOUNTS WERE DISCLOSED BANK ACCOUNTS AND THEY WERE ALSO SHOWN IN THE BALANCE SHEET OF THE ASSESSEE. IT WAS THE SUBMI SSION THAT NO DOCUMENT INCRIMINATING AGAINST THE ASSESSEE WHATSOEVER WAS F OUND IN THE SEARCH ON THE BANK ACCOUNTS. IT WAS THUS THE SUBMISSION THAT THE CONCLUDED ASSESSMENTS COULD NOT BE DISTURBED IN SO FAR AS NO INCRIMINATING I.T.A. NOS. 1533-1537, 1541-1544, 1547-1575/KOL./2012 & C.O. NOS. 110-141/KOL/2012 ASSESSMENT YEAR: 2004-05 TO 2009-1 0 PAGE 9 OF 30 DOCUMENT HAD BEEN FOUND IN THE COURSE OF THE SEARCH ON THE BANK ACCOUNTS. LD. A.R. PLACED RELIANCE ON THE FOLLOWING DECISIONS TO SUPPORT HIS CONTENTIONS: (1) ALL CARGO GLOBAL LOGISTICS LTD. VS.- DCIT [201 2] 18 ITR (TRIB.) 106 (ITAT SPL. BENCH MUMBAI); (2) SHRI GURINDER SINGH BAWA VS- DY. CIT, CENTRAL CIRCLE ITA NO. 2075/MUM/2010 (ITAT MUMBAI); (3) JAI STEEL (INDIA) VS.- ASST. CIT [2013] 259 CTR (RAJ) 281 (RAJASTHAN HIGH COURT); (4) LMJ INTERNATIONAL VS.- DEPUTY COMMISSIONER OF INCOME TAX (2008) 119 TTJ 214 (CAL.) (KOLKATA ITAT) ; (5) ANIL KUMAR BHATIA VS.- ASSISTANT COMMISSIONER OF INCOME TAX ITA NOS. 2660 TO 2665/DEL/2009 (ITAT DELHI); (6) COMMISSIONER OF INCOME TAX VS.- SMT. SHAILA AGARWAL (2012) 346 ITR 130 (ALL) (ALLAHABAD HC); (7) KUSUM GUPTA VS.- DCIT- ITA NOS. 4873/DEL/2009 (ITAT DELHI); (8)ATUL BAROT VS.- DY. COMMISSIONER OF INCOME TAX [2014] 44 TAXMANN.COM 167 (MUM ITAT); (9) SANJAY AGGARWAL VS.- DCIT ITA NO. 3184/DEL/2013 (ITAT DELHI); (10) CIT VS.- MURLI AGRO PRODUCTS LIMITED INCOME TAX APPEAL NO. 36 OF 2009 (BOM. HC); (11) ACIT VS.- JAYENDRA P. JHAVERI [2014] 46 TAXMANN.COM 457 (ITAT MUMBAI) (12) ACIT VS.- HINDUSTAN STORAGE & DISTRIBUTION CO. LTD. IT(SS)A NO. 133/KOL/2011 (KOLKATA ITAT). 8. IT WAS THE SUBMISSION THAT THE LD. CIT(APPEALS) HAD NOT ACCEPTED THE CONTENTION OF THE ASSESSEE BUT HAD RELIED UPON THE DECISION OF THE HONBLE DELHI BENCH OF THIS TRIBUNAL IN THE CASE OF SHIVNATH RAI HARNARAIAN REPORTED IN 117 TTJ 480 (DEL.) TO REJECT THE ASSESSEES PRAYER. IT WAS THE SUBMISSION THAT THE HONBLE DELHI BENCH IN A SUBSEQUENT DECISION IN THE CASE OF ANIL KUMAR BHATIA IN ITA NO S. 2660 TO I.T.A. NOS. 1533-1537, 1541-1544, 1547-1575/KOL./2012 & C.O. NOS. 110-141/KOL/2012 ASSESSMENT YEAR: 2004-05 TO 2009-1 0 PAGE 10 OF 30 2665/DEL/2009 HAD ITSELF EXPRESSED ITS DISAGREEMENT WITH THE VIEW OF THE COORDINATE BENCH OF DELHI BENCH OF THIS TRIBUNAL IN THE CASE OF SHIVNATH RAI HARNARAIAN BEING THE CASE CITED SUPRA WHICH HAS BEEN RELIED UPON BY THE LD. CIT(APPEALS). 9. IN RESPECT OF GROUND NO. 4, IT WAS THE SUBMISSIO N THAT THE ASSESSEE HAD NO LIABILITY TO PAY ADVANCE TAX AND CONSEQUENTL Y NO INTEREST UNDER SECTION 234B WAS LIABLE TO THE LEVIED. LD. A.R. DRE W OUR ATTENTION TO PAGES 132 TO 146 OF THE PAPER BOOK, WHEREIN AT PAGE 140 L D. A.R. REFERRED TO THE NOTE IN RESPECT OF THE ARGUMENTS AGAINST THE LEVY O F INTEREST UNDER SECTION 234B. IT WAS ALSO THE SUBMISSION THAT THE A SSESSMENT ORDER DID NOT CONTAIN ANY DIRECTION TO CHARGE INTEREST UNDER SECTION 234B OF THE ACT AND CONSEQUENTLY INTEREST UNDER SECTION 234B WAS NO T LIABLE TO BE LEVIED ON THE ASSESSEE. 10. IN REPLY, LD. CIT, D.R. SUBMITTED THAT THE WARR ANT OF AUTHORISATION IN RESPECT OF THE SEARCH SHOWS THAT THE SEARCH WAS CON DUCTED ON THE BANK ACCOUNTS WITH AXIS BANK AND HDFC BANK IN THE NAME O F THE ASSESSEE. IT WAS ADMITTED THAT THE WARRANT WAS EXECUTED ON THE B ANK MANAGER. IT WAS THE FURTHER SUBMISSION THAT THE PANCHNAMA CLEARLY C ONTAINED THE BANK ACCOUNT NUMBER AS ALSO THE NAME OF THE ASSESSEE. IT WAS THE SUBMISSION THAT THE PROCEEDINGS WERE RIGHTLY DONE UNDER SECTIO N 153A OF THE ACT. IT WAS THE FURTHER SUBMISSION THAT THE WHOLE ISSUE RES TED ON THE SEARCH WHICH TOOK PLACE ON ONE SHRI SANTOSH KUMAR SHAH. IT WAS THE SUBMISSION THAT THE SEARCH ON SHRI SANTOSH KUMAR SHAH WHICH TO OK PLACE IN 2009 SHOWED 404 ACCOUNTS OPERATED BY SHRI SANTOSH KUMAR SHAH. THE TWO BANK ACCOUNTS BELONGING TO THE ASSESSEE WERE ALSO O PERATED BY SHRI SANTOSH KUMAR SHAH AND THE BOGUS SHARE APPLICATION MONEY WAS ROUTED THROUGH THESE TWO ACCOUNTS WHICH WERE MAINTAINED BY SHRI SANTOSH KUMAR SHAH. IT WAS THE FURTHER SUBMISSION THAT SHRI SANTOSH KUMAR SHAH HAD ALSO ADMITTED TO THE ENTRY OPERATION AND HAD AL SO EXPLAINED THE I.T.A. NOS. 1533-1537, 1541-1544, 1547-1575/KOL./2012 & C.O. NOS. 110-141/KOL/2012 ASSESSMENT YEAR: 2004-05 TO 2009-1 0 PAGE 11 OF 30 MODUS OPERANDI OF THE ENTRY OPERATION. IT WAS THE S UBMISSION THAT SHRI SANTOSH KUMAR SHAH HAD SUBSEQUENTLY FILED A PETITIO N BEFORE THE HONBLE SETTLEMENT COMMISSION BUT THE SAME STOOD REJECTED B Y THE HONBLE SETTLEMENT COMMISSION AS SHRI SANTOSH KUMAR SHAH HA D NOT IDENTIFIED THE BENEFICIARIES IN RESPECT OF THE ENTRY OPERATION. IT WAS THE FURTHER SUBMISSION, IN THE SEARCH OF SHRI SANTOSH KUMAR SHA H, THE DEMAT A/C. DETAILS OF THE ASSESSEE WAS ALSO FOUND AS ALSO DELI VERY INSTRUCTION AND DETAILS OF SUCH SHARE DELIVERIES. IT WAS THE FURTHE R SUBMISSION THAT BOTH THE ACCOUNTS WHICH WERE SEARCHED WERE THE ACCOUNTS USED BY SHRI SANTOSH KUMAR SHAH FOR THE PURPOSE OF MAKING BOGUS ENTRIES TO ITS SHARE CAPITAL. IT WAS THE FURTHER SUBMISSION THAT INTERES T UNDER SECTION 234B HAD BEEN RIGHTLY CHARGED AND THAT LEVY OF INTEREST WAS CONSEQUENTIAL IN NATURE. 11. IN REPLY, LD. A.R. SUBMITTED THAT THE STATEMENT OF SHRI SANTOSH KUMAR SHAH AND HIS EMPLOYEES WERE BEING ATTEMPTED T O BE LINKED WITH THE ASSESSEE. IT WAS THE SUBMISSION THAT THE BANK W AS IN NO WAY AN AGENT OF THE ASSESSEE NOR WAS THE BANK MANAGER, AN AGENT OF THE ASSESSEE. IT WAS THE FURTHER SUBMISSION THAT NO UNDISCLOSED MONE Y OR INCRIMINATING DOCUMENT HAD BEEN FOUND IN THE COURSE OF THE SEARCH ON THE BANK ACCOUNTS. ON A SPECIFIC QUERY AS TO WHAT WAS THE ST ATUS OF SHRI SANTOSH KUMAR SHAH WITH THE ASSESSEE-COMPANY. IT WAS SUBMIT TED BY THE LD. A.R. THAT SHRI SANTOSH KUMAR SHAH WAS A DIRECTOR IN THE ASSESSEE-COMPANY AND IN THE OTHER COMPANIES EITHER SHRI SANTOSH KUMA R SHAH WAS THE DIRECTOR OR HIS RELATIVES WERE THE DIRECTORS. IT WA S FURTHER ADMITTED BY THE LD. A.R. THAT THE SAID TWO BANK ACCOUNTS WERE O PERATED BY SHRI SANTOSH KUMAR SHAH IN THE ASSESSEES CASE. IT WAS T HE SUBMISSION THAT JUST BECAUSE SHRI SANTOSH KUMAR SHAH HAD MADE STATE MENTS THAT HE WAS DOING ENTRY OPERATION, IT DOES NOT MEAN THAT THE SE TTLED ASSESSMENT IN THE CASE OF THE ASSESSEE COULD BE REOPENED UNDER THE GU ISE OF PROCEEDINGS UNDER SECTION 153A. IT WAS THE SUBMISSION THAT THE STATEMENTS RECORDED I.T.A. NOS. 1533-1537, 1541-1544, 1547-1575/KOL./2012 & C.O. NOS. 110-141/KOL/2012 ASSESSMENT YEAR: 2004-05 TO 2009-1 0 PAGE 12 OF 30 FROM SHRI SANTOSH KUMAR SHAH COULD AT BEST BE USED IN THE ASSESSMENT OF SHRI SANTOSH KUMAR SHAH AND NOT IN THE CASE OF THE ASSESSEE. IT WAS THE SUBMISSION THAT THE ASSESSMENTS WERE LIABLE TO BE A NNULLED AS THE SEARCH ITSELF WAS NOT THERE IN THE CASE OF THE ASSESSEE MU CH LESS OF VALID SEARCH. 12. IN REGARD TO THE REVENUES APPEAL FOR THE ASSES SMENT YEARS 2004-05 TO 2009-10 IT WAS THE SUBMISSION BY THE LD. CIT, D. R. THAT AS A CONSEQUENCE TO THE SEARCH ON SHRI SANTOSH KUMAR SHA H AS ALSO THE SEARCH CONDUCTED THEREON, THE CONSEQUENTIAL SEARCH ON THE ASSESSEE HAVE BEEN CONDUCTED. IT WAS THE SUBMISSION THAT THE BANK ACCO UNTS OF THE ASSESSEE WHICH HAD BEEN SEARCH WERE THE BANK ACCOUNTS, WHICH WERE FOUND TO HAVE BEEN OPERATED BY SHRI SANTOSH KUMAR SHAH FOR THE PU RPOSE OF INTRODUCING THE SHARE APPLICATION MONEY INTO THE ASSESSEE-COMPA NY AS ALSO FOR THE PURPOSE OF MAKING THE SHARE APPLICATION MONEY IN OT HER COMPANIES. IT WAS THE SUBMISSION THAT THROUGH THE VARIOUS BANK AC COUNTS SHRI SANTOSH KUMAR SHAH HAD CONDUCTED CIRCULAR TRANSACTIONS WHER E CASH IS INTRODUCED AND CHEQUES WERE ISSUED TO THE BENEFICIARY COMPANIE S IN THE FORM OF SHARE APPLICATION. IT WAS THE SUBMISSION THAT SHRI SANTOSH KUMAR SHAHS STATEMENT HAD EVEN BEEN RECORDED IN APRIL & OCTOBER , 2012 WHEREIN HE HAS CATEGORICALLY ADMITTED TO THE ASSESSEE-COMPANY BEING ONE OF THE BENEFICIARIES AS ALSO BEING ONE OF THE COMPANIES TH ROUGH WHICH THE SHARE APPLICATION TRANSACTIONS HAVE BEEN ROUTED. IT WAS T HE SUBMISSION THAT THE SAID SHRI SANTOSH KUMAR SHAH HAD ALSO APPROACHED TH E HONBLE SETTLEMENT COMMISSION, WHO HAD REJECTED THE SETTLEM ENT APPLICATION FILED ON THE GROUND THAT SHRI SANTOSH KUMAR SHAH HAD NOT IDENTIFIED THE BENEFICIARIES OF THE TRANSACTIONS. IT WAS THE FURTH ER SUBMISSION THAT SHRI SANTOSH KUMAR SHAH HAD CATEGORICALLY EXPLAINED THE TRANSACTIONS DONE BY HIM AND IT WAS CATEGORICALLY ADMITTED THAT CHEQUES WERE ISSUED IN LIEU OF CASH AND COMMISSION RANGING FROM 1% TO 3% WAS CHARG ED FOR THE CHEQUES ISSUED. IT WAS THE FURTHER SUBMISSION THAT SHRI SAN TOSH KUMAR SHAH HAD ALSO CATEGORICALLY ADMITTED THAT EITHER HE OR HIS R ELATIVES WERE THE I.T.A. NOS. 1533-1537, 1541-1544, 1547-1575/KOL./2012 & C.O. NOS. 110-141/KOL/2012 ASSESSMENT YEAR: 2004-05 TO 2009-1 0 PAGE 13 OF 30 DIRECTORS IN ALL THE COMPANIES WHEN SUCH TRANSACTIO NS WERE ROUTED. IT WAS ALSO THE SUBMISSION THAT AFTER THE SAID TRANSAC TIONS ARE COMPLETED, THE BENEFICIARY COMPANIES ARE SOLD OFF OR TRANSFERR ED TO THOSE PERSONS WHO HAD REQUIRED THE SAID SHELL COMPANIES WHICH HAD HUGE SHARE CAPITAL. IT WAS THE FURTHER SUBMISSION THAT THE STATEMENT FR OM THE RELATIVES AND THE EMPLOYEES OF SHRI SANTOSH KUMAR SHAH HAD ALSO B EEN RECORDED AND THEY HAD ALSO ADMITTED TO SHRI SANTOSH KUMAR SHAH B EING THE CONTROLLING PERSON IN RESPECT OF SUCH TRANSACTIONS AND ON WHOSE INSTRUCTIONS THE OPERATIONS WERE CARRIED OUT. 13. LD. CIT, D.R. FURTHER DREW OUR ATTENTION TO PAG E 13 PARA 6.14 OF THE ORDER OF THE LD. CIT(APPEALS). IT WAS THE SUBMISSIO N THAT THE LD. CIT(APPEALS) HAD HELD THAT THE ASSESSING OFFICER HA D NOT BROUGHT ANYTHING ON RECORD TO SHOW THAT THE SOURCE OF THE A SSESSEES SHARE APPLICATION/ SHARE CAPITAL AND SHARE PREMIUM MONEY EMANATED FROM ITS UNACCOUNTED INCOME. IT WAS THE SUBMISSION THAT THE ASSESSING OFFICER HAD CATEGORICALLY BROUGHT OUT IN HIS ORDER THE STATEMEN T OF SHRI SANTOSH KUMAR SHAH AS ALSO THE EMPLOYEE OF SHRI SANTOSH KUM AR SHAH WHICH SHOWED THE SOURCE OF THE UNACCOUNTED INCOME. IT WAS THE SUBMISSION THAT THE ORDER OF THE LD. CIT(APPEALS) WAS LIABLE TO BE REVERSED AND THAT OF THE ASSESSING OFFICER RESTORED. LD. CIT, D.R. ALSO SUBM ITTED THAT SHRI SANTOSH KUMAR SHAH WAS THE DIRECTOR WHO HAD ALSO FILED THE RETURNS OF MANY OF THE ASSESSEE-COMPANIES FOR THE ASSESSMENT YEARS UND ER APPEAL AND HIS STATEMENT IN RESPECT OF THESE COMPANIES HAD TO BE C ONSIDERED AS TRUE AND CORRECT AS THIS STATEMENT HAS NOT BEEN WITHDRAWN NO R SHOWN TO BE WRONG IN ANY MANNER. IN FACT, THE SETTLEMENT APPLICATION OF SHRI SANTOSH KUMAR SHAH SUPPORTED THE STATEMENT RECORDED FROM SHRI SAN TOSH KUMAR SHAH AND HIS EXPLANATION IN RESPECT OF THE TRANSACTIONS DONE BY HIM. I.T.A. NOS. 1533-1537, 1541-1544, 1547-1575/KOL./2012 & C.O. NOS. 110-141/KOL/2012 ASSESSMENT YEAR: 2004-05 TO 2009-1 0 PAGE 14 OF 30 14. AT THE END OF HEARING TODAY CONSIDERING THE COM PLEXITY OF THE ISSUE, THE LD. A.R. ON BEHALF OF THE ASSESSEE WAS REQUESTE D TO PRODUCE THE FOLLOWING DOCUMENTS:- 1) LIST OF THE ASSESSEE-COMPANIES WHERE SHRI SANTOS H KUMAR SHAH OR HIS RELATIVES OR ASSOCIATES ARE THE DIRECTORS OR SHAREHOLDERS AND WHEN THEY CAME IN AND WHEN THEY LEFT. (2) THE BANK ACCOUNTS AND THE BANK STATEMENTS OF EA CH OF THE COMPANIES FOR EACH OF THE ASSESSMENT YEARS UNDER AP PEAL IN RESPECT OF EACH OF THE ASSESSEE-COMPANIES. (3) THE METHOD OF VALUATION OF THE SHARE PREMIUM; (4) THE DATE OF INCORPORATION OF THE ASSESSEE-COMPA NY, (5) PROFIT & LOSS A/C. AND BALANCE-SHEET FOR EACH O F THE COMPANIES FOR EACH OF THE ASSESSMENT YEARS UNDER APPEAL, (6) THE SHARE ALLOTMENT REGISTER IN RESPECT OF EACH OF THE COMPANIES. 15. LD. A.R. WAS REQUESTED TO PROVIDE THE SAME ON O R BEFORE 12 TH SEPTEMBER, 2014. SOME OF THE DETAILS BUT NOT ALL WE RE PRODUCED. FOR EXAMPLE THE DETAILS OF ALL THE BANK ACCOUNTS AND TH EIR EXTRACTS, THE BREAK- UP OF THE METHOD OF VALUATION OF THE SHARE PREMIUM AND THE SHARE ALLOTMENT REGISTER WERE NOT PRODUCED. THE BALANCE S HEET AND PROFIT & LOSS A/CS. FILED ARE DEVOID OF THE SCHEDULES THERET O. 16. IN REPLY, LD. A.R. SUBMITTED THAT 133(6) NOTICE S HAD BEEN ISSUED TO THE VARIOUS SHARE APPLICANTS AND REPLIES HAD BEEN R ECEIVED. NO DEFECT IN THE REPLIES TO THE NOTICES ISSUED UNDER SECTION 133 (6) HAD BEEN FOUND. IT I.T.A. NOS. 1533-1537, 1541-1544, 1547-1575/KOL./2012 & C.O. NOS. 110-141/KOL/2012 ASSESSMENT YEAR: 2004-05 TO 2009-1 0 PAGE 15 OF 30 WAS THE SUBMISSION THAT ONLY ON THE STATEMENT OF SH RI SANTOSH KUMAR SHAH AND OTHERS, THE ADDITIONS HAD BEEN MADE. IT WA S THE SUBMISSION THAT EVEN ON MERITS NO ADDITION WAS CALLED FOR IN THE HA NDS OF THE ASSESSEE IN SO FAR AS NO LINKING HAS BEEN DONE TO SHOW THAT THE MONIES BELONGING TO THE ASSESSEE-COMPANY HAD BEEN USED FOR MAKING THE S HARE APPLICATION MONEY. 17. ON A SPECIFIC QUERY AS TO HOW THE DECISION OF T HE HONBLE DELHI HIGH COURT IN THE CASE OF NOVA PROMOTERS & FINLEASE PVT. LTD. REPORTED IN (2012) 18 TAXMANN.COM 217 (DELHI) WOULD NOT APPLY T O THE FACTS OF THE ASSESSEES CASE. IT WAS SUBMITTED BY THE LD. A.R. T HAT THE CASE OF NOVA PROMOTERS & FINLEASE PVT. LTD. WAS DISTINGUISHABLE IN SO FAR AS IN THE CASE OF NOVA PROMOTERS & FINLEASE PVT. LTD. TWO OF THE P ERSONS TO WHOM SUMMONS HAD BEEN ISSUED, HAD CONFIRMED THAT THE TRA NSACTIONS WERE ENTRIES GIVEN. IT WAS THE SUBMISSION THAT THOSE TWO ENTRY OPERATORS HAD ALSO ACCEPTED THAT THEY WERE ENTRY OPERATORS AND TH EY HAD SUBSEQUENTLY RETRACTED THEIR STATEMENTS AND OPPORTUNITY WAS GIVE N TO THE ASSESSEE TO CROSS EXAMINE THE SAID TWO PERSONS WHICH THE ASSESS EE DID NOT USE. IT WAS THE SUBMISSION THAT IN THE CASE OF NOVA PROMOTERS & FINLEASE PVT. LTD., THE LINK WAS ESTABLISHED TO SHOW THAT IT WAS THE AS SESSEES MONEY WHICH HAD BEEN ROUTED THROUGH THE ENTRY OPERATORS FOR MAK ING THE SHARE APPLICATION. IT WAS THE SUBMISSION THAT IN THE ASSE SSEES CASE, NO SUCH LINK HAS BEEN SHOWN BY THE DEPARTMENT. IT WAS THE SUBMIS SION THAT ONLY ON THE BASIS OF THE STATEMENT MADE BY SHRI SANTOSH KUM AR SHAH, THE ADDITION HAS BEEN MADE. IT WAS THE SUBMISSION THAT AFTER THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF NOVA PROMOT ERS & FINLEASE PVT. LTD., THE HONBLE DELHI HIGH COURT HAD IN THE CASE OF GANGESWARI METALS PVT. LTD. IN ITA NO. 597 OF 2012 VIDE AN ORDER DATE D 21.01.2013 HAD HELD THAT THE ASSESSING OFFICER HAVING DONE NOTHING BUT SIT BACK WITH FOLDED HANDS TILL THE ASSESSEE EXHAUSTS ALL THE EVIDENCES OF MATERIAL IN HIS POSSESSION AND THEN COMES FORWARD TO MERELY REJECT THE SAME ON I.T.A. NOS. 1533-1537, 1541-1544, 1547-1575/KOL./2012 & C.O. NOS. 110-141/KOL/2012 ASSESSMENT YEAR: 2004-05 TO 2009-1 0 PAGE 16 OF 30 PRESUMPTION, THE ADDITION CANNOT BE MADE. IT WAS T HE SUBMISSION THAT THE ASSESSEES CASE WAS SIMILAR TO THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF GANGESWWARI METALS PVT. LTD. I N SO FAR AS THE ASSESSING OFFICER HAS NOT BROUGHT OUT ANY DEFECT IN THE EVIDENCES AND MATERIAL SUBMITTED BY THE ASSESSEE BUT HAS ONLY MAK E THE ADDITION BY MERELY REJECTING THE SAME ON PRESUMPTION. IT WAS TH E SUBMISSION THAT NO CASH HAD BEEN DEPOSITED IN THE BANK ACCOUNTS OF THE ASSESSEE AND THE ASSESSEE HAD ALSO NOT BEEN GRANTED THE OPPORTUNITY TO CROSS EXAMINE THE PERSONS FROM WHOM THE STATEMENT HAD BEEN RECORDED. IT WAS THE FURTHER SUBMISSION THAT NEITHER THE COPIES OF THE STATEMENT WHICH HAD BEEN USED AGAINST THE ASSESSEE, HAD BEEN PROVIDED TO THE ASSE SSEE. IT WAS THE SUBMISSION THAT THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF LOVELY EXPORTS REPORTED IN 319 ITR (STATUTE) 5 (SC) APPLIED IN THE ASSESSEES CASE. IT WAS THE SUBMISSION THAT EVEN ON MERITS, THE ADDITION AS DELETED BY THE LD. CIT(APPEALS) WAS LIABLE TO BE SU STAINED. 18. IN REPLY, LD. D.R. SUBMITTED THAT EVEN PERMANEN T ACCOUNT NUMBERS IN ALL THE CASES WERE NOT SUBMITTED. THE SHAREHOLDE RS AND DIRECTORS WERE EITHER SHRI SANTOSH KUMAR SHAH HIMSELF OR HIS CRONI ES. IT WAS THE SUBMISSION THAT THE FUNDS IN CASH WERE INTRODUCED O RIGINALLY THROUGH THE SAVINGS BANK ACCOUNT WITH SOUTH INDIAN BANK. LD. SR . D.R. FURTHER SUBMITTED THAT EVEN IN THE ASSESSEES BANK ACCOUNT, WHICH WAS THE SUBJECT MATTER OF THE SEARCH, CASH HAD BEEN INTRODU CED WHICH HAS NOT BEEN EXPLAINED. IT WAS THE FURTHER SUBMISSION THAT THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF GANGESWARI METALS PVT. LTD. WOULD NOT APPLY TO THE ASSESSEES CASE IN SO FAR AS IN TH E ASSESSEES CASE THE ASSESSING OFFICER HAS DONE SUBSTANTIAL INVESTIGATIO N AND DEFECTS HAVE BEEN POINTED OUT. IT WAS THE SUBMISSION THAT THE OR DER OF THE LD. CIT(APPEALS) WAS LIABLE TO BE REVERSED. I.T.A. NOS. 1533-1537, 1541-1544, 1547-1575/KOL./2012 & C.O. NOS. 110-141/KOL/2012 ASSESSMENT YEAR: 2004-05 TO 2009-1 0 PAGE 17 OF 30 19. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AT TH E OUTSET, AS THE CROSS OBJECTIONS IN THE ASSESSEES CASE GO TO THE R OOT OF THE ISSUE, THE SAME IS BEING DISPOSED OF. IN THE CROSS OBJECTIONS, THE MAIN ARGUMENT OF THE ASSESSEE IS THAT THERE WAS NO VALID SEARCH, IN SO FAR AS THE WARRANT IS IN THE NAME OF THE BANK ACCOUNT AND NOT THE ASSESSE E. ON THIS ISSUE WHAT IS TO BE PRIMARILY UNDERSTOOD IS THAT THE COPY OF T HE WARRANT IS NEVER GIVEN TO THE ASSESSEE. IT IS ONLY THE COPY OF THE P ANCHNAMA THAT GOES TO THE ASSESSEE. A PERUSAL OF THE PROVISIONS OF SECTIO N 132(1) SHOWS THAT THE WARRANT IS TO BE SPECIFICALLY IN THE NAME OF THE PE RSON AND IT HAS TO SPECIFY THE PLACE. 20. A PERUSAL OF THE PANCHNAMA CLEARLY SHOWS THAT T HE NAME OF THE ASSESSEE IS MENTIONED IN THE PANCHNAMA, THE PLACE H AS BEEN IDENTIFIED CATEGORICALLY AS THE BANK ACCOUNT. ON A SPECIFIC DI RECTION TO THE LD. CIT, DR, HE HAS SHOWN THE COPY OF THE WARRANT TO THE BEN CH. THE WARRANT ALSO CONTAINS THE NAME OF THE ASSESSEE AND THE BANK ACCO UNT NUMBER AND THE BRANCH NAME, ETC. IN ANY CASE, WHEN AN ASSESSEE IS CHALLENGING THE WARRANT TO BE ILLEGAL, THEN IT IS REQUIRED TO BE CH ALLENGED BY FILING AFFIDAVIT ALLEGING THE SAME. IN ANY CASE, SUCH AN A FFIDAVIT HAS NOT BEEN FILED IN ANY OF THE CROSS OBJECTIONS IN THE BUNCH O F APPEALS. CONSEQUENTLY WE ARE OF THE VIEW THAT THE SEARCH HAD VALIDLY BEEN CONDUCTED ON THE ASSESSEE. 21. THE NEXT ISSUE RAISED BY THE LD. A.R. THAT THE WARRANT WAS SERVED ON THE BANK MANAGER AND NOT ON THE ASSESSEE AND THAT T HE PANCHNAMA IS SIGNED BY THE BANK MANAGER AND NOT THE ASSESSEE AND , THEREFORE, THE SEARCH IS INVALID. WE ARE UNABLE TO SUBSCRIBE TO TH IS ARGUMENT. THE BANK ACCOUNT OF AN ASSESSEE IS HIS PRIVATE ACCOUNTS, NOB ODY, NOT EVEN THE BANK ITSELF CAN DO ANY TRANSACTION THROUGH SUCH BANK ACC OUNT UNLESS OTHERWISE AUTHORISE TO DO SO BY THE ACCOUNT HOLDER. IN EFFECT THE BANK ACTS AS THE AGENT OF THE ASSESSEE. THE BANK MANAGER, THE REPRES ENTATIVE OF THE BANK, I.T.A. NOS. 1533-1537, 1541-1544, 1547-1575/KOL./2012 & C.O. NOS. 110-141/KOL/2012 ASSESSMENT YEAR: 2004-05 TO 2009-1 0 PAGE 18 OF 30 IS ADMITTEDLY RESPONSIBLE FOR ANYTHING THAT GOES ON IN RESPECT OF THE SPECIFIED BANK ACCOUNTS OF THE ACCOUNT HOLDERS. THE BANK IS ANSWERABLE TO THE ACCOUNT HOLDER FOR ANY ACT DONE WITH THE ACC OUNT OF THE ACCOUNT HOLDER WITHOUT THE INSTRUCTION OF THE ACCOUNT HOLDE R. THUS THE EXECUTION OF THE WARRANT ON THE BANK MANAGER OF THE BRANCH WH ERE THE ASSESSEE WAS MAINTAINING ITS ACCOUNTS, WHICH WERE SEARCHED, CANN OT BE FAULTED WITH. ONCE IT IS HELD THAT THE SEARCH ON THE BANK ACCOUNT IS VALID THEN ADMITTEDLY THE PROVISIONS OF SECTION 153A WOULD OPE RATE. THE ARGUMENT OF THE LD. A.R. THAT NO INCRIMINATING DOCUMENT WAS FOUND IN THE COURSE OF SEARCH DOES NOT HOLD ANY WATER IN SO FAR AS THE SEA RCH HAD ORIGINALLY BEEN CONDUCTED ON SHRI SANTOSH KUMAR SHAH AND IN THE COU RSE OF THE SEARCH ON SHRI SANTOSH KUMAR SHAH, THE SAID BANK ACCOUNTS BEL ONGING TO THE ASSESSEE HAD BEEN FOUND TO HAVE BEEN USED BY SHRI S ANTOSH KUMAR SHAH FOR THE PURPOSE OF HIS ENTRY OPERATION. THE CONSEQU ENTIAL SEARCH HAS TAKEN PLACE ON THE BANK ACCOUNT WHICH ALSO SHOWED S UCH TRANSACTIONS, AS HAS BEEN ADMITTED BY SHRI SANTOSH KUMAR SHAH. THE C ASE LAW AS RELIED UPON BY THE LD. A.R. DOES NOT SUPPORT THE CONTENTIO N OF THE ASSESSEE THAT THE SEARCH CANNOT BE TREATED AS VALID IF THE WARRAN T IS EXECUTED IN THE HANDS OF THE BANK MANAGER. IN FACT, THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF DR. MANSUKH KANJIBH AI SHAH VS.- ACIT REPORTED IN 129 ITD 376 SHOWS THAT IN THE SAID DECI SION THE COORDINATE BENCH OF THIS TRIBUNAL HAS NOT HELD THAT THE EXECUT ION OF THE WARRANT BY DRAWING OF THE PANCHNAMA WAS NOT THE SEARCH ON THE ASSESSEE. IN THAT CASE, THE SERVICE OF THE WARRANT WAS ON THE BANK MA NAGER OF THE TRUST. IT WAS BECAUSE THE SERVICE OF THE WARRANT WAS ON THE B ANK MANAGER OF THE TRUST, IT WAS HELD THAT IT WAS NOT SEARCH ON THE AS SESSEE IN THE INDIVIDUAL CASE OF THE ASSESSEE. IN THE ASSESSEES CASE, THE S EARCH WARRANT IS EXECUTED ON THE BANK MANAGER OF THE BRANCH WHERE TH E ACCOUNT OF THE ASSESSEE IS OPERATING. IN FACT, THE DECISION IN THE CASE OF DR. MANSUKH KANJIBHAI SHAH GOES AGAINST THE ARGUMENT RAISED BY THE ASSESSEE. AS WE I.T.A. NOS. 1533-1537, 1541-1544, 1547-1575/KOL./2012 & C.O. NOS. 110-141/KOL/2012 ASSESSMENT YEAR: 2004-05 TO 2009-1 0 PAGE 19 OF 30 HAVE HELD THAT THE SEARCH WARRANT HAS BEEN RIGHTLY EXECUTED, THE QUESTION OF ABATEMENT DOES NOT ARISE. 22. COMING TO THE ISSUE OF LEVY OF INTEREST UNDER S ECTION 234B, THOUGH THE LD. A.R. HAS FILED A DETAILED NOTE AT PAGES 140 -145 OF THE PAPER BOOK, WE ARE UNABLE TO AGREE WITH THE LD. A.R. IN SO FAR AS THE LEVY OF INTEREST UNDER SECTION 234B IS NOW CONSEQUENTIAL IN NATURE. THE ARGUMENT THAT THERE WAS NO ADVANCE TAX LIABILITY DOES NOT HOLD WA TER IN SO FAR AS THE ADDITION ARE ON WHICH TDS WAS NOT LIABLE TO BE MADE AND THE ASSESSEE HAD THE LIABILITY TO PAY ADVANCE TAX. THE ADDITIONS MAD E ARE CLEARLY UNDER SECTIONS 68 & 69 OF THE ACT. IN THESE CIRCUMSTANCES , THE CROSS OBJECTIONS FILED BY THE ASSESSEE STAND DISMISSED. 23. COMING TO THE REVENUES APPEALS, WE HAVE CONSID ERED THE SUBMISSIONS. THE TRIBUNAL BEING THE HIGHEST FACT FI NDING BODY, WE HAVE ATTEMPTED TO DISENTANGLE THE SHARE APPLICATION TRAN SACTIONS IN THE PRESENT GROUP OF CASES. HOWEVER, WE MUST ADMIT THAT WE HAVE HIT ABSOLUTE ROAD BLOCKS. THE CLEAR INGENUINITY WITH WHICH THESE TRANSACTIONS HAVE BEEN DONE CLEARLY SHOWS EXTENDED TO WHICH PERSONS I NVOLVED IN THE SCHEME HAVE MANIPULATED NOT ONLY THE COMPANIES ACT PROVISIONS BUT ALSO THE INCOME TAX PROVISIONS AND BANKING PROVISIONS. W E CAN ONLY SYMPATHISE WITH THE LD. CIT(APPEALS) WHO HAVING LOS T HIS POWERS OF SET ASIDE WAS LEFT WITH NO OTHER ALTERNATIVE BUT TO ALL OW THE ASSESSEES APPEAL. TAX AVOIDANCE IS AN ACCEPTED PRINCIPLE. HOWEVER, T HE METHODOLOGY AND ACTS DONE IN SUCH CASES OF CAPITAL FORMATION IS NOT TAX AVOIDANCE. IT IS ENTIRELY IN THE REALM OF TAX EVASION. THESE TRANSAC TIONS HAVE IN EFFECT 3 LIMBS. THE FIRST LIMB IS THE CREATION OF THE SHELL COMPANIES WITH SUBSTANTIAL SHARE CAPITAL WHICH IS BALANCED WITH IN VENTORIES IN THE FORM OF SHARES IN OTHER SHELL COMPANIES. THE SECOND LIMB IS THE TRANSFER OF SUCH SHELL COMPANIES TO PERSONS WHO DESIRE TO USE S UCH SUBSTANTIAL SHARE I.T.A. NOS. 1533-1537, 1541-1544, 1547-1575/KOL./2012 & C.O. NOS. 110-141/KOL/2012 ASSESSMENT YEAR: 2004-05 TO 2009-1 0 PAGE 20 OF 30 CAPITAL COMPANIES FOR CONVERTING THEIR UNACCOUNTED MONEY INTO ACCOUNTED FUNDS AND USE SUCH SHELL COMPANIES TO DO LEGITIMATE BUSINESS. THE THIRD LIMB IS WHEN THE SHELL COMPANIES AFTER BEING TAKEN OVER, THE ASSETS IN THE FORM OF INVENTORIES ARE ENCASHED WHEREBY THE UNACCO UNTED MONIES ARE LAUNDERED AND BROUGHT INTO THE COMPANY FOR CONDUCTI NG THE LEGITIMATE BUSINESS. ALL THESE THREE LIMBS ARE NOT DONE IN ONE ASSESSMENT YEAR BUT IN DIFFERENT ASSESSMENT YEARS. AT TWO POINTS UNACCOUNT ED MONIES ARE LAUNDERED. AT THE FIRST STAGE AND AT THE THIRD STAG E, I.E. ONCE AT THE POINT OF CREATION OF SHARE CAPITAL AND THEN AGAIN AT THE POINT OF CONVERTING THE INVENTORIES/INVESTMENTS/LOANS AND ADVANCES INTO FUN DS FOR THE LEGITIMATE BUSINESS PURPOSE. 24. FROM THE PAPERS AND THE FACTS AS HAVE BEEN PLAC ED BEFORE US, THOUGH WE WOULD SAY THAT THE SAME ARE SUBSTANTIALLY INADEQUATE, THE FOLLOWING PICTURE EMERGES. SHRI SANTOSH KUMAR SHAH HAD CREATED A NUMBER OF SHELL COMPANIES. THIS IS EVIDENCED FROM T HE FACT THAT SHRI SANTOSH KUMAR SHAH HIMSELF HAS ADMITTED TO THE SAME IN THE COURSE OF THE SEARCH CONDUCTED ON HIM ON 14.12.2009. THE SAID SHR I SANTOSH KUMAR SHAH IN HIS STATEMENT SUBSEQUENTLY RECORDED IN APRI L, 2012, OCTOBER, 2012 HAS FURTHER CATEGORICALLY ADMITTED THAT HE IS A DIRECTOR IN THE ASSESSEE-COMPANY. IN THE STATEMENT RECORDED IN APRI L, 2012, HE HAS ALSO IDENTIFIED THE RELATIONSHIP BETWEEN HIM AND THE VAR IOUS DIRECTORS OF THE VARIOUS COMPANIES. IN HIS STATEMENT OF OCTOBER, 201 2, HE AGAIN REITERATES THAT HE IS A DIRECTOR OF THE ASSESSEE-COMPANY. IN T HE STATEMENT HE HAS EXPLAINED HOW HE HAS ACCOMMODATED THE PERSONS. A PE RUSAL OF THE RETURN OF INCOME IN THE CASE OF THE ASSESSEE FOR THE ASSES SMENT YEAR 2004-05 SHOWS THAT SHRI SANTOSH KUMAR SHAH HAS SIGNED THE V ERIFICATION OF THE RETURN. THIS CLEARLY SHOWS THAT SHRI SANTOSH KUMAR SHAH WAS CONTROLLING THE AFFAIRS OF THE ASSESSEE. A PERUSAL OF THE BANK ACCOUNT OF THE ASSESSEE, SOUTH INDIAN BANK, KOLKATA SHOWS THAT CASH HAS BEEN DEPOSITED VARYING BETWEEN RS.25,000/- AND RS.1,50,000/- ON VARIOUS DA TES AND IMMEDIATELY I.T.A. NOS. 1533-1537, 1541-1544, 1547-1575/KOL./2012 & C.O. NOS. 110-141/KOL/2012 ASSESSMENT YEAR: 2004-05 TO 2009-1 0 PAGE 21 OF 30 WHEN THE AMOUNT REACHES A FIGURE OF TWO TO THREE OR MORE LAKHS, IMMEDIATELY CHEQUES WERE ISSUED TO VARIOUS OTHER CO MPANIES OR OTHER ACCOUNTS. IT SHOWS THAT THE DIRECTOR OF THE ASSESSE E COMPANY SHRI SANTOSH KUMAR SHAH HIMSELF HAS GIVEN A STATEMENT EXPLAINING THE TRANSACTIONS OF HOW HE HAS DONE THE ACCOMMODATION ENTRIES IN THE AS SESSEES CASES. CONSEQUENTLY THE QUESTION OF CROSS EXAMINING SHRI S ANTOSH KUMAR SHAH NO MORE SURVIVES IN SO FAR AS HE IS A DIRECTOR HIMS ELF WHO HAS EXPLAINED THE TRANSACTIONS AND HAS ACCEPTED THE FACTUM OF ACC OMMODATION ENTRIES. THIS IS FURTHER SUPPORTED BY THE FACT THAT SHRI SAN TOSH KUMAR SHAH HAS FILED A SETTLEMENT APPLICATION ADMITTING TO THE PRO VIDING OF THE ACCOMMODATION ENTRIES BY TAKING CASH AND ROUTING IT THROUGH VARIOUS BANK ACCOUNTS. IT HAS ALSO BEEN ADMITTED BY THE LD. A.R. THAT THE BANK ACCOUNTS OF THE ASSESSEE WERE ALSO DURING THAT RELE VANT PERIOD OPERATED BY SHRI SANTOSH KUMAR SHAH AND THE APPRAISAL REPORT IN THE CASE OF SHRI SANTOSH KUMAR SHAH IN RESPECT OF THE SEARCH CONDUCT ED ON SHRI SANTOSH KUMAR SHAH ON 14.12.2009 HAS FOUND THE DEMAT ACCOUN TS OF THE ASSESSEE AS ALSO THE BANK ACCOUNTS IN THE NAME OF THE ASSESS EE, WHICH WERE THE BANK ACCOUNTS WHICH HAVE BEEN SEARCHED. THIS PROVES THE LINK OF CASH FOR CHEQUE ENTRIES. AS MENTIONED EARLIER, THERE IS AN I NTRICATE WEB. IT IS RELEVANT BECAUSE THE CREATION OF THE SHELL COMPANIE S AND INTRODUCTION OF THE SHARE CAPITAL IS NOT THE ONLY ISSUE THAT COMES UP. THIS IS BUT THE TIP OF THE ICE BERG. A PERUSAL OF THE BALANCE SHEET AND PR OFIT & LOSS ACCOUNT IN THE CASE OF THE ASSESSEE SHOW THAT THE SHARE APPLIC ATION MONIES RECEIVED BY THE ASSESSEE ALONGWITH THE PREMIUM ARE REPRESENT ED IN THE BALANCE SHEET IN THE FORM OF CURRENT ASSETS BEING THE UNQUO TED EQUITY SHARES IN OTHER SUCH COMPANIES. THAT IS THE SHARE APPLICATION MONEY RECEIVED BY THE ASSESSEE IS USED FOR MAKING FURTHER INVESTMENTS IN OTHER SUCH SIMILAR SHELL COMPANIES FROM WHOM CASH IS TAKEN AND REROUTE D THROUGH CHEQUES. THESE SHELL COMPANIES WHICH ARE ACQUIRED BY THE INT ERESTED THIRD PARTIES PURCHASE THESE COMPANIES AT A FRACTIONAL AMOUNT OF THE VALUE OF THE SHARES. THAT MEANS A COMPANY WHOSE SHARE VALUE IS R S.10/-, THE SHARE IS I.T.A. NOS. 1533-1537, 1541-1544, 1547-1575/KOL./2012 & C.O. NOS. 110-141/KOL/2012 ASSESSMENT YEAR: 2004-05 TO 2009-1 0 PAGE 22 OF 30 ISSUED AT A PREMIUM OF RS.490/- TOTAL VALUE OF THE SHARE BECOMES RS.500/-. THIS CONTAINS FIRST PORTION OF THE UNACCO UNTED CASH BROUGHT IN OR CONVERTED THROUGH THE ACCOMMODATION ENTRY. NOW T HIS 500 RUPEES SHARE IS PURCHASED BY THE THIRD PARTY OR THE INTERE STED PERSON IN TAKING OVER THE SHARE COMPANY FOR THE PURPOSE OF UTILIZING ITS CAPITAL. IT MAY BE TWO RUPEES OR THREE RUPEES PER SHARE. HERE THE PURC HASE PRICE IS EVEN BELOW THE FACE VALUE OF THE SHARES OR AT THE FACE V ALUE. THE PREMIUM IS IN EFFECT THE BONUS. THE PREMIUM ALREADY INTRODUCED SI TS IN THE LIABILITY SIDE AS A RESERVE AND ON THE ASSET SIDE AS INVESTMENTS I N OTHER SHELL COMPANIES. NOW ONCE THE CONTROLLING INTEREST IS TAK EN, THEN THE BALANCE SHEET HAS TO BE CLEANED. THE BALANCE SHEET WHICH NO W HOLDS IN CURRENT ASSETS THE UNQUOTED SHARES OF OTHER SHELL COMPANIES AND LOANS AND ADVANCES GET CLEANED BY AGAIN LIQUIDATING THESE CUR RENT ASSETS. NOW THESE CURRENT ASSETS REPRESENTING THE SHARE APPLICATION M ONEY OR THE INVENTORIES BEING SHARES IN THE UNQUOTED COMPANIES ARE SITTING AT A PREMIUM BECAUSE THESE SHARES HAVE ALSO BEEN APPLIED FOR AND PURCHASED AT A PREMIUM. HOW THIS MONEY WAS BROUGHT BACK INTO THE COMPANY HAS NOT BEEN EXAMINED. WHEN THIS HAS COME BACK HAS NOT BEEN EXAMINED AND WHO ARE THE PEOPLE RESPONSIBLE WHEN THESE TRANSACTI ONS TOOK PLACE HAS NOT BEEN EXAMINED. HERE THE SECOND ROUND OF LAUNDER ING OF UNACCOUNTED FUNDS IS DONE. MUCH LESS BEING EXAMINED, THE DETAIL S ARE NOT AVAILABLE NOR GIVEN. THIS IS BECAUSE THE INVENTORIES ARE ALSO SHA RES OF SHELL COMPANIES AND NO INVESTOR WORTH HIS SALT WOULD ACQUIRE THE SH ARES OF SUCH SHELL COMPANIES AT SUCH PREMIUM. THE QUESTION WOULD ARISE ALSO AS TO WHETHER ANY OF THESE SHELL COMPANIES IN WHICH THE ASSESSEE COMPANY HAS MADE THE INVESTMENT, HAVE ALSO BEEN SOLD OR TRANSFERRED. IN SUCH A CASE, IT BECOMES MORE INTRICATE. THERE IS NO INFORMATION AS TO WHETH ER THERE IS A CLAIM OF CAPITAL LOSS OR THERE IS AN OFFER OF CAPITAL GAINS IN THE RETURNS OF INCOME OF THE ASSESSEE WHEN THESE SHARES MORE SO THE CURRENT ASSETS WERE CLEANED FROM THE BALANCE SHEET. THIS IS WHY AT THE EARLIER PORTION OF THIS ORDER WE HAD MENTIONED THAT THESE ARE CASES OF CLEAR HUMAN I NGENUINITY WITH THE I.T.A. NOS. 1533-1537, 1541-1544, 1547-1575/KOL./2012 & C.O. NOS. 110-141/KOL/2012 ASSESSMENT YEAR: 2004-05 TO 2009-1 0 PAGE 23 OF 30 CLEAR AND CONTUMACIOUS INTENTION TO DEFRAUD THE REV ENUE. IT IS NOT THE HANDIWORK OF ONE PERSON ALONE. ONE PERSON HAS CREAT ED THE SHELL, ANOTHER HAS FUNDED THE SHELL WITH AN INTENTION TO LAUNDER U NACCOUNTED FUNDS AND AFTER HAVING ACQUIRED THE SHELL HAS USED IT FOR CON VERTING ITS FUNDS ALSO. THERE IS NO INFORMATION AS TO WHO ARE THE LATEST BE NEFICIARIES OF SUCH SHELL COMPANIES AND FOR WHAT PURPOSE THE COMPANIES ARE BEING USED. THIS IS JUST THE REASON WHY THE PROVISION OF SECTION 56( VIIB) HAS BEEN INTRODUCED. IN FACT, A PERUSAL OF THE PROFIT & LOSS A/C. AND BALANCE-SHEET OF THE ASSESSEE HEREIN BEING PATANGI TRADE & HOLDIN GS (P) LTD. FOR THE YEAR ENDING 31 ST MARCH, 2004 SHOWS THE SALE OF RS.10,88,000/- AND T HE PROFIT AFTER TAX OF RS.70,359/- WHEREAS THE INVENTO RIES ITSELF HAS GONE UP BY RS.5,00,000/-, LOANS AND ADVANCES BY RS.5,00,000 /- AND THE FIXED ASSET OF THE ASSESSEE-COMPANY IS ONLY ONE COMPUTER. IT SH OWS OPENING STOCK OF RS.17,55,000/- AND ANOTHER PURCHASE OF RS.17,23,000 /- AND RECEIPT OF SHARE APPLICATION MONEY OF NEARLY RS.35,00,000/-. T HE SHARES HAVE BEEN ISSUED AT A PREMIUM OF RS.30/- DURING THIS PERIOD. THERE ARE NO EMPLOYEES IN MANY OF THE COMPANIES. THE DIRECTORS I N MOST OF THE COMPANIES, WHO HAVE MADE THE SHARE APPLICATION MONE Y, ARE EITHER BROTHER OF SHRI SANTOSH KUMAR SHAH OR HIS NEPHEW OR BROTHER, WIFE, ETC. IT MAY ALSO BE WORTHWHILE TO EXTRACT THE ORDER OF THE SETTLEMENT COMMISSION IN THE CASE OF SHRI SANTOSH KUMAR SHAH W HEREIN THE SETTLEMENT COMMISSION HAS HELD AS FOLLOWS WHEN REJE CTING THE SETTLEMENT APPLICATION:- 5. IT IS AN ADMITTED POSITION THAT THE APPLICANT I S ENGAGED IN THE BUSINESS OF PROVIDING ACCOMMODATION ENTRIES TO VARIOUS PARTIES FOR A COMMISSION. ACCORDING TO THE APPLICANT, HE HAS ALSO AT TIMES ACTED AS A FINANCE AGENT IN TRANSACTIONS SUCH AS NEGOTIATION FOR FINANCES, BROKERAGE, STANDING GUARANTEE IN FINANCIAL TRANSACTIONS, ETC. IT APPEARS THAT A SEARCH WAS CAR RIED OUT AT APPLICANTS OFFICE PREMISES ON 14 TH DECEMBER, 2009. THE SEARCH WAS FINALLY CONCLUDED ON 11 TH FEBRUARY, 2010. A LIST OF 404 BANK ACCOUNTS WAS FOU ND FROM APPLICANTS PREMISES IN THE COURSE OF SEARCH. ACCORDING TO THE CITS REPORT, THE TOTAL DEPOSITS I N I.T.A. NOS. 1533-1537, 1541-1544, 1547-1575/KOL./2012 & C.O. NOS. 110-141/KOL/2012 ASSESSMENT YEAR: 2004-05 TO 2009-1 0 PAGE 24 OF 30 THESE ACCOUNTS AMOUNTED TO RS.642.80 CRORE. IT WAS CLARIFIED LATER BY THE AR THAT APART FROM THE 404 ACCOUNTS REFERRED TO BY THE COMMISSIONER, THERE WER E 29 MORE ACCOUNTS THROUGH WHICH THE APPLICANT HAD CARRIED OUT HIS BUSINESS. AS SUCH, THERE WERE IN AL L 433 ACCOUNTS. IT IS APPLICANTS CASE THAT ONLY 101 BANK ACCOUNTS OUT OF THESE WERE USED BY THE APPLICANT FO R INITIAL DEPOSITS. THE REST OF THE ACCOUNTS WERE USE D ONLY FOR CIRCULATION OF MONEY WITH THE OBJECTING OF PROV IDING MULTIPLE LAYERS OF COVER FOR THE TRANSACTIONS OF ACCOMMODATION ENTRIES. THE APPLICANT HAS PROVIDED T HE DETAILS OF THESE 101 ACCOUNTS, SUCH AS NAMES OF THE ACCOUNT HOLDERS, ACCOUNT NUMBERS AND THE NAMES OF T HE BANKS. AS FAR AS THE REMAINING BANK ACCOUNTS ARE CONCERNED, THEY ARE HELD BY 274 COMPANIES AND 58 INDIVIDUALS WHOSE NAMES HAVE BEEN FURNISHED BY THE APPLICANT. IT WAS STATED THAT 58 ACCOUNTS IN THE NA MES OF THE INDIVIDUALS WERE HELD IN THE NAMES OF APPLIC ANTS STAFF MEMBERS, FAMILY MEMBERS AND RELATIVES. IT WAS STATED THAT THESE ARE THE SAVINGS BANK ACCOUNTS HAV ING SMALL DEPOSITS WHICH ARE NOT CONNECTED WITH THE BUSINESS OF THE APPLICANT. THE 274 COMPANIES ARE ST ATED TO BE REGULAR ASSESSEES OF INCOME TAX. THE DETAILS OF THE DEPOSITS IN THE 101 ACCOUNTS IN WHICH INITIAL DEPOS ITS WERE MADE, HAVE BEEN FURNISHED BY THE APPLICANT THROUGH SHRI MIHIR BANDYOPADHYAYS LETTER DATED 27 TH NOVEMBER, 2012 AS UNDER:- TOTAL DEPOSIT MADE IN THE INITIAL 101 BANK ACCOUNTS (TAKING INTO CONSIDERATION ALL THE ASSESSMENT YEARS) WORKS OUT TO RS.940 CRORES ADDED TO ABOVE, OTHER BANK DEPOSITS (GROSS) RS.21.61 CRORES UNACCOUNTED TRANSACTIONS IN SEIZED DOCUMENTS RS.141.01 CRORES TOTAL RS.1102.62 CRORES IT WAS STATED BY SHRI BANDYOPADHYAY THAT THE APPLIC ANT HAD DISCLOSED INCOME OF RS.6.06 CRORE BEFORE THE DEPART MENT. FURTHER DISCLOSURE OF RS.1.65 CRORE HAS BEEN MADE B EFORE THE SETTLEMENT COMMISSION. SHRI BANDYOPADHYAY PLEADED T HAT THE NET PROFIT MARGIN IN THIS KIND OF ACTIVITY IS VERY SMALL. ACCORDING TO HIM, NET COMMISSION AT THE RATE OF 0.5 5% OF THE TOTAL TURNOVER SHOULD BE REGARDED AS FAIR AND REASO NABLE. SHRI BANDYOPADHYAY DISTINGUISHED HIS CLIENTS CASE FROM THE I.T.A. NOS. 1533-1537, 1541-1544, 1547-1575/KOL./2012 & C.O. NOS. 110-141/KOL/2012 ASSESSMENT YEAR: 2004-05 TO 2009-1 0 PAGE 25 OF 30 CASE OF SHRI PRAVEEN KUMAR AGARWAL VS.- DEPUTY COMMISSIONER OF INCOME TAX WHEREIN A RATE OF 2% WAS UPHELD BY THE ITAT, KOLKATA IN THE CASE OF AN ENTRY PROVID ER. ACCORDING TO THE LD. AR, THE CASE OF SHRI PRAVEEN K UMAR AGARWAL WAS MORE THAN 10 YEARS OLD. SINCE THEN, THE NUMBER OF ENTRY PROVIDERS HAS MULTIPLIED WITH THE RESULT THAT THE PROFIT MARGIN HAS DECLINED CONSIDERABLY. IT WAS ALS O POINTED OUT BY THE LEARNED AR THAT THE APPLICANT IS ONE OF THE BIGGER ENTRY PROVIDERS AND HE HAS TO SACRIFICE HIS MARGIN OF PROFIT IN ORDER TO INCREASE HIS TURNOVER. THOUGH NORMALLY WE ARE BOUND BY THE JUDICIAL FINDIN GS OF ANOTHER JUDICIAL AUTHORITY DEALING WITH THE SAME SUBJECT, WE ARE REF ERRING TO THIS ORDER ONLY TO REITERATE THE EARLIER FINDING GIVEN BY US T HAT THE INTRICACIES AND THE FACTS HAVE NOT BEEN BROUGHT OUT IN ITS ENTIRETY BY EITHER THE ASSESSEE OR SHRI SANTOSH KUMAR SHAH. 25. IN THESE CIRCUMSTANCES, AS MENTIONED EARLIER TH E WEB OF THE INTRICACIES OF THE TRANSACTIONS BEING SO VAST AND T HE FACTS ARE BEING HIDDEN IN SUCH WEB WITH THE INTENTION NOT COMING FO RWARD FROM THE ASSESSEE WE ARE LEFT WITH NO OTHER ALTERNATIVE BUT TO RESTORE THE ISSUE IN THE REVENUES APPEALS IN RESPECT OF THE SHARE APPLI CATION MONEY TO THE FILE OF THE ASSESSING OFFICER FOR RE-ADJUDICATION A ND WE DO SO. THE ARGUMENTS RAISED BY THE LD. A.R. THAT THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF NOVA PROMOTERS & FINLEASE PVT. LTD. DOES NOT APPLY AND IT IS THE DECISION IN THE CASE OF GANGESW ARI METALS PVT. LTD., THAT IS TO BE APPLIED ALSO DOES NOT HOLD WATER, IN SO FAR AS IN THE PRESENT CASE SHRI SANTOSH KUMAR SHAH IS THE DIRECTOR OF THE ASSESSEE-COMPANY, HE IS THE SIGNATORY TO THE RETURN, HE IS THE SIGNATORY TO THE BANK ACCOUNTS AND HE HAS ADMITTED CATEGORICALLY IN HIS STATEMENT IN THE SEARCH THAT HE IS PROVIDING ENTRIES. HE HAS EXPLAINED THE METHODOLOGY ADOPTED BY HIM THOUGH NOT ALL THE BENEFICIARIES IN ITS ENTIRETY AN D HE HAS ALSO GONE TO THE EXTENT OF FILING SETTLEMENT APPLICATION WHICH HAS B EEN REJECTED BY THE SETTLEMENT COMMISSION. I.T.A. NOS. 1533-1537, 1541-1544, 1547-1575/KOL./2012 & C.O. NOS. 110-141/KOL/2012 ASSESSMENT YEAR: 2004-05 TO 2009-1 0 PAGE 26 OF 30 26. THESE FACTS CLEARLY SHOW THAT IT IS THE DECISIO N IN THE CASE OF NOVA PROMOTERS & FINLEASE PVT. LTD. REFERRED TO SUPRA WH ICH APPLY TO THE FACTS OF THE ASSESSEES CASE AND NOT THE DECISION IN THE CASE OF GANGESWARI METALS PVT. LTD. WE MAY ALSO MENTION HERE THAT THOU GH THERE HAS BEEN AN ARGUMENT THAT THE SHARE APPLICANTS HAVE RESPONDED F OR PROVIDING 133(6) NOTICES. IT IS NOT ONLY THE RESPONSE TO 133(6) NOTI CES THAT HAS AN EFFECT OF PROVIDING INFORMATION. THE INFORMATION PROVIDED ARE INCOMPLETE IN SO FAR AS THE APPLICANTS BANK ACCOUNTS HAVE NOT BEEN FURNI SHED IN DETAIL. COPIES OF THE SHARES IN PHYSICAL FORM HAVE NOT BEEN PROVID ED. THE ASSESSEE IS BOUND TO PROVIDE ALL SUCH INFORMATION AS ARE CALLED FOR BY THE ASSESSING OFFICER IN THE COURSE OF ASSESSMENT. THE ASSESSEE K NOWS WHAT HAS BEEN DONE IN HIS BOOKS. WHAT STARTED AS A PRESUMPTION BY THE REVENUE WAS SUBSTANTIALLY FORTIFIED WITH PROOF IN THE COURSE OF THE SEARCH ON THE ASSESSEES AND SHRI SANTOSH KUMAR SHAH. NOW IT IS N OT OPEN TO THE ASSESSEES IN SUCH CIRCUMSTANCES TO HIDE BEHIND THE CLAIM THAT IT IS FOR THE REVENUE TO PROVE THAT THE SHARE APPLICATION MONEY R ECEIVED IS THE MONEY OF THE ASSESSEE. THE REVENUE HAS PROVED ITS CLAIM W ITH THE EVIDENCES FOUND IN THE COURSE OF SEARCH AND THE UNRETRACTED S TATEMENT OF THE DIRECTOR OF THE ASSESSEE COMPANY SHRI SANTOSH KUMAR SHAH. NOW IT IS FOR THE ASSESSEE TO PROVE OTHERWISE WITH SUBSTANTIAL DO CUMENTARY EVIDENCE THAT IT IS NOT THE ASSESSEES FUNDS WHICH HAVE BEEN ROUTED THROUGH THE CASH FOR CHEQUE TRANSACTIONS, WHICH THE ASSESSEE HA S FAILED TO DO REPEATEDLY. THE ASSESSING OFFICER HAS ASKED FOR VAR IOUS DETAILS VIDE HIS LETTERS DATED 18.02.2011, 29.09.2011, 27.12.2011, E TC. EVEN A SHOW-CAUSE NOTICE HAS BEEN ISSUED. THE ASSESSEE HAS NOT PROVID ED ALL THE INFORMATION CALLED FOR BY THE ASSESSING OFFICER. THE REPLIES GI VEN BY THE ASSESSEE CLEARLY SHOW THAT THEY ARE VAGUE AND BALD, WITH THE CLEAR INTENTION TO DELAY THE PROCEEDINGS AND DENY THE ASSESSING OFFICE R ADEQUATE TIME FOR FURTHER INVESTIGATION. THIS ADMITTEDLY HAS FORCED T HE ASSESSING OFFICER TO ISSUE THE SHOW-CAUSE NOTICE DATED 27.12.2011 TO WHI CH THE ASSESSEE I.T.A. NOS. 1533-1537, 1541-1544, 1547-1575/KOL./2012 & C.O. NOS. 110-141/KOL/2012 ASSESSMENT YEAR: 2004-05 TO 2009-1 0 PAGE 27 OF 30 WRONGLY ASKED THE ASSESSING OFFICER AS TO WHAT IS T HE EVIDENCE AND ON WHAT BASIS HE HAS ISSUED SUCH A SHOW-CAUSE NOTICE. HERE WHAT BECOMES CLEAR IS THAT THE ASSESSING OFFICER HAS NOT BEEN SI TTING IDLE, HE HAS BEEN ATTEMPTING TO COLLECT THE INFORMATION WHICH IS UNDE R THE CONTROL OF THE ASSESSEES AND SHRI SANTOSH KUMAR SHAH, WHICH THE AS SESSEE HAS BEEN SUCCESSFULLY DELAYING AND THWARTING FOR REASONS BES T KNOWN TO ASSESSEE AND WHEN THE CASE IS GETTING TIME BARRED HAS DEMAND ED THE EXPLANATION FROM THE ASSESSING OFFICER AS TO ON WHAT BASIS HE I S RAISING THE ALLEGATION, WHEN ALL THE EVIDENCES ARE BEING HIDDEN BY THE ASSE SSEE. IN THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF NOVA PROMOTERS & FINLEASE PVT. LTD. WOULD CLEARLY APPLY TO THE ASSESSEES CASE. BUT INSTEAD O F DISMISSING THE ASSESSEES CLAIM FOLLOWING THE DECISION IN THE CASE OF NOVA PROMOTERS & FINLEASE PVT. LTD, IN THE INTEREST OF JUSTICE, THE ASSESSEE IS BEING GRANTED ANOTHER OPPORTUNITY TO CLEAN UP ITS CASE AND PLACE ALL THE FACTS AND DETAILS BEFORE THE ASSESSING OFFICER FOR PROPER ADJUDICATIO N. 27. WE MAY ALSO IN THE PRESENT SITUATION PLACE RELI ANCE ON THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF YO GENDRAKUMAR GUPTA VS.- ITO REPORTED IN (2014) 366 ITR 186 (GUJ.), WHE REIN THE HONBLE GUJARAT HIGH COURT HAS HELD AS FOLLOWS:- 18. AS MENTIONED HEREINABOVE, WE HAD CALLED FOR TH E ORIGINAL FILE, WHICH HAD REVEALED NEW, VALID AND TANGIBLE INFORMATION SUPPOR TING THE ASSESSING OFFICERS OPINION RECEIVED FROM THE DEPUTY COMMISSIONER OF IN COME-TAX, KOLKATA, BASED ON THE MATERIAL FOUND DURING THE SEARCH BY THE CBI, WH ERE BASANT MARKETING PVT. LTD., IS SAID TO BE A DUMMY COMPANY OF ONE SHRI ARU N DALMIA. WHAT HAS BEEN EMPHASIZED BY THE LEARNED SENIOR COUN SEL APPEARING FOR THE PETITIONER IS THAT THE ASSESSING OFFICER HAD AT TEMPTED TO FILL IN THE GAP BY TERMING THE AMOUNT RECEIVED FROM BASANT MARKETING P VT. LTD. AS ACCOMMODATION ENTRY, WHICH SHE COULD NOT HAVE DON E WITHOUT FURTHER INQUIRY/VERIFICATION. YET ANOTHER CONTENTION EMPHAS IZED BY THE LEARNED SENIOR COUNSEL IS THAT THE POST-NOTICE CORRESPONDENCE MADE AFTER THE REASONS RECORDED COULD NOT HAVE ADDED ANYTHING WHICH WAS LACKING IN THE REASONS THEMSELVES. HE URGED THAT IN THE ABSENCE OF ANY STATEMENT GIVEN BY ANY DIRECTOR OF BASANT MARKETING PVT. LTD. STATING THAT THE ASSESSEE RECEI VED AND OBTAINED ACCOMMODATION ENTRY IN THE FORM OF LOANS AND ADVANC ES, THE REASONS LACK BASIS. I.T.A. NOS. 1533-1537, 1541-1544, 1547-1575/KOL./2012 & C.O. NOS. 110-141/KOL/2012 ASSESSMENT YEAR: 2004-05 TO 2009-1 0 PAGE 28 OF 30 THE DIRECTOR, MR. DALMIA OF BASANT MARKETING PVT. L TD. AS CONTENDED ALSO DOES NOT REVEAL ANYWHERE AND, THEREFORE, IT IS PREMATURE ON THE PART OF THE ASSESSING OFFICER TO SO RECORD THE REASONS. IT IS FURTHER URG ED THAT THE AFFIDAVIT OF RISHABH DALMIA STATING ON OATH THAT THE LOAN TRANSACTIONS W ITH THE PETITIONER ARE GENUINE FOR HAVING BEEN CARRIED OUT ONLY THROUGH CHEQUES, P RIMA FACE VINDICATES THAT THE ENTIRE EXERCISE IS BASED ON SUSPICION. THE ENTIRE T HRUST, THEREFORE, IS THAT ISSUANCE OF NOTICE IS NOTHING BUT A FISHING INQUIRY. AS DISCUSSED AT LENGTH WHILE ADVERTING TO THE LAW, THAT SUFFICIENCY OF REASONS RECORDED BY THE ASSESSING OFFICER NEED NOT BE GONE INTO BY THIS COURT. OF COURSE, THE ASSESSING OFFICER WHEN FORMS HIS BELIEF ON THE BASIS OF SUBSEQUENT NEW AND SPECIFIC INFORMATION THAT THE INCOME CHARGE ABLE TO TAX HAS ESCAPED ASSESSMENT ON ACCOUNT OF OMISSION ON THE PART OF T HE ASSESSEE TO MAKE FULL AND TRUE DISCLOSURE OF PRIMARY FACTS, HE MAY START REAS SESSMENT PROCEEDINGS AS FRESH FACTS REVEALED THE NON-DISCLOSURE FULL AND TRUE SUC H FACTS WERE NOT PREVIOUSLY DISCLOSED OR IT CAN BE SAID THAT IF PREVIOUSLY DISC LOSED, THEY EXPOSE UNTRUTHFULNESS OF FACTS REVEALED. THE ASSESSING OFFICER REQUIRED JURISDICTION TO REOP EN UNDER SECTION 147 READ WITH SECTION 148 OF THE ACT, WHERE THE INFORMA TION MUST BE SPECIFIC AND RELIABLE. AS HELD BY THE APEX COURT IN THE CASE OF PHOOL CHAND BAJRANG LAL (SUPRA), SINCE THE BELIEF IS THAT OF THE INCOME-TAX OFFICER, THE SUFFICIENCY OF REASONS FOR FORMING THE BELIEF, IS NOT FOR THE COURT TO JUDGE B UT IS OPEN TO AN ASSESSEE TO ESTABLISH THAT THERE EXISTS NO BELIEF OR THAT THE B ELIEF IS NOT AT ALL A BONA FIDE ONE OR BASED ON VAGUE, IRRELEVANT AND NON-SPECIFIC INFO RMATION. TO THAT LIMITED EXTENT, THE COURT MAY LOOK AT THE VIEW TAKEN BY THE INCOME-TAX OFFICER AND CAN EXAMINE WHETHER ANY MATERIAL IS AVAILABLE ON RECORD FROM WHICH THE REQUISITE BELIEF COULD BE FORMED BY THE ASSESSING OFFICER AND WHETHER THAT MATERIAL HAS ANY RATIONAL CONNECTION OR A LIVE LINK WITH THE FORMATI ON OF THE REQUISITE BELIEF. IT IS ALSO IMMATERIAL THAT AT THE TIME OF MAKING THE ORIG INAL ASSESSMENT, THE ASSESSING OFFICER COULD HAVE FOUND BY FURTHER INQUIRY OR INVE STIGATION AS TO WHETHER THE TRANSACTIONS WERE GENUINE OR NOT. IF ON THE BASIS O F SUBSEQUENT VALID INFORMATION, THE ASSESSING OFFICER FORMS A REASON TO BELIEVE ON SATISFYING THE TWIN CONDITIONS PRESCRIBED UNDER SECTION 147 OF THE ACT THAT NO FUL L AND TRUE DISCLOSURE OF FACTS WAS MADE BY THE ASSESSEE AT THE TIME OF ORIGINAL AS SESSMENT AND, THEREFORE, THE INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT, HI S BELIEF AND THE NOTICE OF REASSESSMENT BASED ON SUCH BELIEF/OPINION NEEDS NO INTERFERENCE. IN THE PRESENT CASE, SINCE BOTH THE NECESSARY CONDI TIONS HAVE BEEN DULY FULFILLED, SUFFICIENCY OF THE REASONS IS NOT TO BE GONE INTO BY THIS COURT. THE INFORMATION FURNISHED AT THE TIME OF ORIGINAL ASSES SMENT, WHEN BY SUBSEQUENT INFORMATION RECEIVED FROM THE DEPUTY COMMISSIONER O F INCOME-TAX, KOLKATA ITSELF FOUND TO BE CONTROVERTED, THE OBJECTION TO THE NOTI CE OF REASSESSMENT UNDER SECTION 147 OF THE ACT MUST FAIL AT THE COSTS OF IN GEMINATION, IT NEEDS TO BE MENTIONED THAT AT THE TIME OF SCRUTINY ASSESSMENT, A SPECIFIC QUERY WAS RAISED WITH REGARD TO UNSECURED LOANS AND ADVANCES RECEIVE D FROM THE SAID COMPANY, NAMELY, BASANT MARKETING PVT. LTD. BASED AT KOLKATA . THESE BEING THE TRANSACTIONS THROUGH THE CHEQUES AND DRAFTS, THERE WOULD ARISE NO QUESTION OF THE ASSESSING OFFICER NOT ACCEPTING SUCH VERSION OF THE ASSESSEE AND NOT TREATING I.T.A. NOS. 1533-1537, 1541-1544, 1547-1575/KOL./2012 & C.O. NOS. 110-141/KOL/2012 ASSESSMENT YEAR: 2004-05 TO 2009-1 0 PAGE 29 OF 30 THEM AS GENUINE LOANS AND ADVANCES. FURNISHING THE DETAILS OF NAMES, ADDRESSES, PANS, ETC., ALSO WOULD LOSE ITS RELEVANCE IF SUBSEQ UENTLY FURNISHED INFORMATION, WHICH HAS BEEN MADE BASIS FOR ISSUANCE OF NOTICE IM PUGNED, CONCLUDES THAT BASANT MARKETING PVT. LTD. IS MERELY A DUMMY COMPAN Y OF ONE SHRI ARUN DALMIA, WHICH PROVIDED THE ACCOMMODATION ENTRIES TO VARIOUS BENEFICIARIES. THIS COURT HAS EXAMINED THE BELIEF OF THE ASSESSING OFFICER TO A LIMITED EXTENT TO INQUIRY AS TO WHETHER THERE WAS SUFFICIEN T MATERIAL AVAILABLE ON RECORD FOR THE ASSESSING OFFICER TO FORM A REQUISITE BELIE F WHETHER THERE WAS A LIVE LINK EXISTING OF THE MATERIAL AND THE INCOME CHARGEABLE TO TAX THAT ESCAPED ASSESSMENT. THIS DOES NOT APPEAR TO BE THE CASE WHE RE THE ASSESSING OFFICER ON VAGUE OR UNSPECIFIC INFORMATION INITIATED THE PROCE EDINGS OF REASSESSMENT, WITHOUT BOTHERING TO FORM HIS OWN BELIEF IN RESPECT OF SUCH MATERIAL. WE NEED TO NOTICE THAT THE JOINT DIRECTOR CBI, MUMBAI, INTIMAT E TO THE DIT (INVESTIGATION), MUMBAI. A CASE IS REGISTERED AGAINST MR. ARUN DALMI A, HARSH DALMIA AND DURING THE SEARCH AT THEIR RESIDENCE AND OFFICE PREMISES, THE SUBSTANTIAL MATERIAL INDICATED THAT 20 DUMMY COMPANIES OF MR. ARUN DALMI A WERE ENGAGED IN MONEY LAUNDERING AND THE INCOME-TAX EVASION. THE SAID ENT ITIES INCLUDED BASANT MARKETING PVT. LTD. ALSO. FORM THE ANALYSIS OF DETA ILS FURNISHED AND THE BENEFICIARIES REFLECTED, WHICH ARE SPREAD ACROSS TH E COUNTRY, THE COMMISSIONER OF INCOME-TAX, KOLKATA, SUSPECTED THE ACCOMMODATION EN TRY RELATED TO THE ASSESSMENT YEAR 2006-07 AS WELL, THIS INFORMATION H AS BEEN PROVIDED TO THE DIRECTOR GENERAL OF INCOME-TAX, KOLKATA, WHO IN TUR N, COMMUNICATED TO THE CHIEF COMMISSIONER O INCOME-TAX, AHMEDABAD. FURTHER REVEL ATION OF INVESTIGATION AS COULD BE NOTICED FROM THE RECORD EXAMINED (FILE) DE SERVES NO REFLECTION IN THIS PETITION. INSISTENCE ON THE PART OF THE PETITIONER TO PROVIDE ANY FURTHER MATERIAL FORMING THE PART OF INVESTIGATION CARRIED OUT AGAIN ST DALMIAS ALSO NEEDS TO MEET WITH NEGATION, AS THE LAW REQUIRES SUPPLY OF INFORM ATION ON WHICH ASSESSING OFFICER RECORDED HER SATISFACTION, WITHOUT NECESSIT ATING SUPPLY OF ANY SPECIFIC DOCUMENTS. THE PROCEEDINGS INITIATED UNDER SECTION 147 OF THE ACT WOULD NOT BE RENDERED VOID AND NON-SUPPLY OF SUCH DOCUMENT FOR W HICH CONFIDENTIALITY IS CLAIMED AT THIS STAGE, FOLLOWING THE DECISIONS OF T HE DELHI HIGH COURT IN THE CASE OF ACORUS UNITECH WIRELESS (P.) LTD. (SUPRA). THE ASSU MPTION OF JURISDICTION ON THE PART OF THE ASSESSING OFFICER IS SINCE BASED ON FRE SH INFORMATION, SPECIFIC AND RELIABLE AND OTHERWISE SUSTAINABLE UNDER THE LAW, C HALLENGE TO REASSESSMENT PROCEEDINGS WARRANT NO INTERFERENCE. 28. WITH THESE FINDINGS, THE ISSUES IN THESE APPEAL S ARE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR RE-ADJUDICATION A FTER GRANTING THE ASSESSEE ADEQUATE OPPORTUNITY TO SUBSTANTIATE ITS C ASE. 29. WE MAY MENTION HERE THOUGH IT MAY NOT BE TAKEN AS A DIRECTION FROM THE BENCH, THAT THE ASSESSING OFFICER WOULD DO WELL TO INITIATE I.T.A. NOS. 1533-1537, 1541-1544, 1547-1575/KOL./2012 & C.O. NOS. 110-141/KOL/2012 ASSESSMENT YEAR: 2004-05 TO 2009-1 0 PAGE 30 OF 30 PROCEEDINGS AT A SUBSTANTIAL EARLY DATE AND THE REV ENUE WOULD DO WELL TO HAVE AN INDEPENDENT DIVISION FOR LOOKING AFTER SUCH CASES. 30. IN THE RESULT, THE APPEALS OF THE REVENUE ARE A LLOWED FOR STATISTICAL PURPOSES AND THE CROSS OBJECTIONS FILED BY THE ASSE SSEES ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH SEPTEMBER, 2014. SD/- SD/- SHAMIM YAHYA GEORGE MATHAN (ACCOUNTANT MEMBER) (JU DICIAL MEMBER) KOLKATA, THE 12 TH DAY OF SEPTEMBER, 2014 COPIES TO : (1) DEPUTY/ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-XXX, KOLKATA, AAYAKAR BHAWAN, POORAVA, 4 TH FLOOR, 110, SHANTIPALLY, KOLKATA- 700107 (2) PATANGI TRADE & HOLDINGS (P) LTD. 9/12, LAL BAZAR STREET, BLOCK-E, 2 ND FLOOR, KOLKATA-700 001; (3) OTHER ASSESSEES; (4) COMMISSIONER OF INCOME-TAX (APPEALS) (5) COMMISSIONER OF INCOME TAX (6) THE DEPARTMENTAL REPRESENTATIVE (7) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.