Harmony Yarns Pvt.Ltd., Surat V. The Income tax Officer,Ward-1(2), Surat

ITA 1590/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1925 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 8 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 19-01-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 20-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRADEEPKUMAR MAJMUDAR
• Assessee Lawyers: MEHUL R SHAH
• Keywords: Reopening of assessment; Search and seizure; Source of fund; Question of law; Accommodation entries; Onus to prove; Reason to believe; Documents seized; Reassessment proceedings
• Section: 143(3); 133(6); 131; 69; 148; 132; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH AHMEDABAD BEFORE SHRI RAJPAL YADAV, JM, & SHRI MANISH BORA D, AM. ITA NO.1590/AHD/2012 ASST. YEAR: 2005-06 HARMONY YARNS PVT. LTD., 105, J. K. TOWER, RING ROAD, SURAT. VS. ITO, WD 1(2), SURAT. APPELLANT RESPONDENT PAN AAACH 5895F APPELLANT BY SHRI MEHUL R. SHAH, AR RESPONDENT BY SHRI PRADEEPKUMAR MAJMUDAR, SR.DR DATE OF HEARING: 19/1/2016 DATE OF PRONOUNCEMENT: 01/04/2016 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER . THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A) I, SURAT, DATED 26.6.2012 IN APPEAL NO.CAS- 1,208/2011-12 PASSED AGAINST ORDER U/S 143(3) R.W.S 147 OF THE IT ACT, 1961 (IN SHORT THE ACT) FOR ASSESSMENT YEAR 2005-06 FRAMED ON 29.8 .2011 BY ITO WD -1(2), SURAT. ASSESSEE HAS RAISED FOLLOWING GROU NDS OF APPEAL :- 1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (AP PEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN R EOPENING ASSESSMENT BY ISSUING NOTICE U/S. 148 OF THE ACT. ITA NO. 1590/AHD/2012 ASST. YEAR 2005-06 2 2. ON THE FACTS AND IN CIRCUMSTANCE OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HA S ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN MAKING ADDIT ION OF RS. 26,00,000/- U/S 68 OF THE ACT ON ACCOUNT OF SHARE APPLICATION A ND SHARE PREMIUM MONEY. 3. IT IS THEREFORE PRAYED THAT ASSESSMENT FRAMED U/ S 143(3) R.W.S. 147 OF THE ACT MAY KINDLY BE QUASHED OR ALTERNATIVELY THE ADDI TIONS MADE BY ASSESSING OFFICER AND CONFIRMED BY LEARNED COMMISSI ONER OF INCOME-TAX (APPEALS) MAY PLEASE BE DELETED. 4. APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE A NY GROUND(S) EITHER BEFORE OR IN THE COURSE OF HEARING OF THE APPEAL. 2. BRIEFLY STATED FACTS AS CULLED OUT FROM THE ASSE SSMENT RECORDS ARE THAT ASSESSEE IS A PRIVATE LIMITED COMPANY WHIC H FILED ITS RETURN OF INCOME AT RS.NIL ON 20.09.2005. THE CASE WAS SELECT ED FOR SCRUTINY ASSESSMENT AND ORDER U/S 143(3) OF THE ACT WAS FRAM ED ON 28.12.2007 AFTER MAKING AN ADDITION OF RS.1,58,771/ - AND AFTER GIVING CREDIT TO CARRY FORWARD LOSSES INCOME WAS ASSESSED AT RS.NIL. THEREAFTER NOTICE U/S 148 OF THE ACT WAS ISSUED ON 29/3/2011 AND SERVED UPON THE ASSESSEE ON 31/03/2011 AND IN RESPO NSE TO THE NOTICE U/S 148 OF THE ACT ASSESSEE VIDE ITS LETTER DATED 27.4.2011 SUBMITTED THAT THE ORIGINAL RETURN FILED BY THE ASS ESSEE COMPANY FOR ASST. YEAR 2005-06 MAY BE TREATED AS RETURN FILED I N RESPONSE OF THIS NOTICE. IT WAS OBSERVED BY THE ASSESSING OFFICER DU RING REASSESSMENT PROCEEDINGS THAT ASSESSEE HAS TAKEN SHARE APPLICATI ON MONEY OF RS.26 LACS FROM FOLLOWING TWO PERSONS :- M/S MIHIR AGENCY PVT. LTD. RS.11,00,000/- M/S BUNIYAD CHEMICALS PVT. LTD. RS.15,00,000/- ------------------------- TOTAL RS.26,00,000/- ------------------------ ITA NO. 1590/AHD/2012 ASST. YEAR 2005-06 3 LD. ASSESSING OFFICER EXAMINED THE SHARE APPLICATIO N MONEY OF RS.26, LACS RECEIVED BY THE ASSESSEE COMPANY, IN TH E LIGHT OF DOCUMENTS SEIZED DURING THE COURSE OF SEARCH AND SE IZURE U/S 132 IN THE CASE OF M/S MAHASAGAR SECURITIES PRIVATE LIMITE D WHEREIN IT WAS REVEALED THAT MAHASAGAR SECURITIES PVT. LTD. AND IT S RELATED GROUP OF 34 ODD COMPANIES WERE ENGAGED IN FRAUDULENT BILLING ACTIVITIES AND IN THE BUSINESS OF PROVIDING BOGUS SPECULATION PROFIT/ LOSS, SHORT TERM/LONG TERM CAPITAL GAIN/LOSS, SHARE APPLICATION MONEY, COMMODITIES PROFIT/LOSS ON COMMODITY TRADING [THROU GH MCX] FOR MANY YEARS. IN THE LIST OF CLIENTS WHO HAD TAKEN AC COMMODATION ENTRIES FROM THESE COMPANIES, THE NAME OF THE PRESE NT ASSESSEE I.E. M/S HARMONY YARNS PVT. LTD. HAD ALSO APPEARED. ON T HE BASIS OF STATEMENT ON OATH SHRI MUKESH M. CHOKSI (THE MAIN P ERSON BEHIND THAT SCAM AND ALSO DIRECTOR OF ALL THESE COMPANIES) WAS RECORDED ON 25.11.2009 WHEREIN HE REVEALED THE COMPLETE MODUS O PERANDI OF HIS COMPANIES AND ADMITTED THAT ACCOMMODATION ENTRIES F OR SHARE APPLICATION MONEY HE USED TO RECEIVE MONEY IN CASH FROM THE CLIENT AND ACCOMMODATION ENTRY OF THAT MONEY HAD BEEN PROV IDED THROUGH BANKING CHANNELS. DURING THE COURSE OF RE-ASSESSMEN T PROCEEDINGS ASSESSEE SUBMITTED THAT STATEMENT GIVEN BY A THIRD PARTY SHOULD NOT BE RELIED AND PLACED RELIANCE ON THE JUDGMENT OF H ON. SUPREME COURT IN THE CASE OF CIT VS. LOVELY EXPORTS PVT. LT D. (2009) 319 ITR (ST.) 5 WHEREIN IT WAS HELD THAT IF THE NAMES OF THE SHARE APPLICANTS ARE FURNISHED TO THE DEPARTMENT THEN THE SAID AMOUN T CANNOT BE REGARDED AS INCOME OF THE ASSESSEE COMPANY AND FURTHER SUBMITTED THAT RE-ASSESSMENT PROCEEDINGS CANNOT BE INITIATED ON THE BASIS OF ITA NO. 1590/AHD/2012 ASST. YEAR 2005-06 4 STATEMENT OF THIRD PARTY IN A SITUATION WHEN ALL NE CESSARY DETAILS AND DOCUMENTS WERE DULY VERIFIED DURING THE COURSE OF R EGULAR ASSESSMENT PROCEEDINGS U/S 143(3) OF THE ACT AND CR EDITWORTHINESS AND GENUINENESS OF THE PERSONS GIVING SHARE APPLICA TION MONEY WAS PROVED. 3. HOWEVER, THE SUBMISSIONS MADE BY APPELLANT WERE NOT ENOUGH TO CONVINCE LD. ASSESSING OFFICER WHO WAS OF THE VI EW THAT AS ALL THE DOCUMENTS PRODUCED IN RESPECT OF M/S MIHIR AGENCY P VT. LTD. AND M/S BUNIYAD CHEMICALS PVT. LTD. ARE UNDER THE SIGNATURE OF SHRI MUKESH M. CHOKSI C/O M/S MAHASAGAR SECURITIES PRIVATE LIMI TED, ONUS TO PROVE NATURE AND SOURCE OF CASH CREDIT IN FORM OF S HARE APPLICATION MONEY IS NOT DISCHARGED BY THE ASSESSEE SATISFACTOR ILY AND HE WENT AHEAD TO MAKE ADDITION OF RS.26 LACS TO THE INCOME OF ASSESSEE UNDER THE PROVISIONS OF SECTION 68 OF THE ACT FOR U NEXPLAINED SOURCE OF SHARE APPLICATION AND SHARE PREMIUM MONEY. 4. AGGRIEVED, ASSESSEE WENT IN APPEAL BEFORE LD. CI T(A) WHO DISMISSED THE APPEAL OF ASSESSEE BY OBSERVING AS UN DER :- DECISION . 8.1 . DURING THE COURSE OF APPELLANT PROCEEDINGS, T HE APPELLANT RELIED ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF LOVELY EXPORTS (F) LTD. BEFORE PROCEEDING FURTHER, IT IS NECESSARY TO DISCUSS THE INTERPRETATION OF THE ABOVE JUDGEMENT BY THE HON'BLE MUMBAI HIGH COURT IN THE C ASE OF M/S .MAJOR METALS LIMITED REPORTED IN 19 TAXMAN. COM 176 ( BOM ). THE HON'BLE BOMBAY HIGH COURT IN JUDGMENT DATED 22. 02. 2012 HAS ANALYZED T HE DECISION OF M/S LOVELY EXPORTS PVT LTD IN DETAIL AND DISTINGUISHED THE SAM E IN THE ABOVE CASE OF ADDITION RELATED TO 'SHARE CAPITAL*. THE RELEVANT PARAS OF T HE SAID JUDGMENT (PAGES 23 TO 28) ARE REPRODUCED HEREIN UNDER:- ITA NO. 1590/AHD/2012 ASST. YEAR 2005-06 5 23. ............. .NOW IT IS IN THIS BACKGROUND THAT THE SETTLEME NT COMMISSION HAS ARRIVED AT A CONSIDERED FINDING OF FACT THAT THE TRANSACTIONS OF THE TWO COMPANIES WERE NOT GENUINE TRANSACTIONS; THAT THE TWO COMPANI ES LACKED A CREDIT STANDING WHICH WOULD HAVE ENABLE THEM TO PAY LARGE AMOUNTS TOWARDS SHARE PREMIUM OF RS 990/- ON A FACE VALUE OF RS 10/- PER SHARE AND THAT NEI THER THE PAST PERFORMANCE OR THE 'FINANCIALS OF THE PETITIONER ITSE1F~WOULD-JUSTIF Y THE PAYMENT OF SUCH A LARGE PREMIUM. THE SETTLEMENT COMMISSION HAS RELIED UPON THE LAW LAID DOWN BY THE SUPREME COURT IN SUMATI DAYAJ VS CIT (1995) 214 ITR 801 / 80 TAXMAN 89 ( SC) IN APPLYING THE TEST OF HUMAN PROBABILITIES. SECTION 68 OF THE INCOME TAX ACT, PROVIDES THAT WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF AN ASSESSEE MAINTAINED FOR ANY PREVIOUS YEAR , AND THE ASSESSEE OFFERS NO EXPLANA TION ABOUT THE NATURE, AND SOURCE THEREOF OR THE EXPLANATION OFFERED BY HIM IS NOT, IN THE OPINION OF THE . ASSESSING OFFICER , SATISFACTORY, THE SUM SO CREDITED MAY BE CHARGED TO INCOME TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR. THE SUPREME COURT HELD AS FOLLOWS : ' IT IS NO DOUBT TRUE THAT IN ALL CASES IN WHICH A RECEIPT IS SOUGHT TO BE TAXED AS THE BURDEN LIES ON THE DEPARTMENT TO PROVE THAT IT IS WITHIN THE TA XING PROVISION AND IF A RECEIPT IS IN THE NATURE OF INCOME, THE BURDEN OF P ROVING THAT IT IS NOT TAXABLE INCOME BECAUSE IT FALLS WITHIN EXEMPTION PROVIDED BY THE A CT LIES UPON THE ASSESSEE. ( SEE PARIMISETTI SEETHARARNAMMA ( 1965) 57UTR 532 AT PAG E 536) BUT, IN VIEW OF SECTION 68 OF THE ACT, WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF ASSESSEE FOR ANY PREVIOUS YEAR, THE SAME MAY BE CHARGED TO INCOME TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR IF ME EXPLANATION OFFERED BY THE ASSE SSEE ABOUT .THE NATURE AND SOURCE THEREOF, IS IN THE OPINION OF THE ASSESSING OFFICER , NOT SATISFACTORY. IN SUCH A CASE, THERE IS, PRIMA FACIE , EVIDENCE AGAINST THE ASSESSEE VIZ ; THE RECEIPT OF MONEY, AND IF HE FAILS TO REBUT IT, THE SAID EVIDENCE BEING UNREBUTTED , C AN BE USED AGAINST HIM BY HOLDING THAT IT WAS A RECEIPT OF AN INCOME NATURE. WHILE CONSIDE RING THE EXPLANATION OF THE ASSESSEE THE DEPARTMENT CANNOT, HOWEVER, ACT UNREASONABLY, 24. BUT, IT HAS BEEN URGED ON BEHALF OF THE PETITIO NER THAT AN ADDITION WITHIN .THE MEANING OF SECTION 68 WOULD NOT BE JUSTIFIED IN LAW IN ITS HANDS EVEN IF THE SHARE APPLICATION MONEY WAS RECEIVED FROM BOGUS SHARE HOLDERS. COUNSE L APPEARING ON BEHALF OF THE PETITIONER SUBMITTED THAT IN THE PRESENT CASE THE R EPORT SUBMITTED BY THE COMMISSIONER U/S 245D(3) SHOWED THAT THE TWO. COMPANIES WERE DUL Y IDENTIFIED BEING INCOME TAX ASSESSEES WHOSE PANS WERE ALSO FURNISHED. CONSEQUEN TLY, RELYING ON THE DECISION OF THE DELHI HIGH COURT IN THE CASE OF CIT VS LOVELY E XPORTS (P) LTD, ( 2008) 299ITR 268 ( 2007) 158 TAXMAN 440 (DELHI) AND THE ORDER RENDERED BY THE SUPREME COURT IN A SPECIAL LEAVE PETITION ARISING THEREFROM, IT WAS UR GED THAT RECOURSE TO THE PROVISIONS OF SECTION 68 WAS NOT IN ORDER. NOW, IN ORDER TO APPRE CIATE THE SUBMISSION IT WOULD BE .NECESSARY TO CONSIDER THE JUDGMENT OF DELHI HIGH C OURT IN LOVELY EXPORTS (P) LTD ( SUPRA). THE DIVISION BENCH OF THE DELHI HIGH COURT DEALT WITH A BATCH OF APPEALS RELATING TO THREE ASSESSEES. IN THE CASE OF LOVELY EXPORTS ( P) LTD( SUPRA), THE ASSESSING OFFICER HAD PROCEEDED TO MAKE AN ADDITION ON THE, GROUND TH AT THE SHARE APPLICANTS IN QUESTION DID NOT EXIST. THE ASSESSEE HAD FURNISHED NECESSARY DETAILS SUCH AS THE PAN OF THE SHARE APPLICANTS. THE SHARE MONEY HAD BEEN RECEIVED THROUGH BANKING CHANNELS. THE A O MADE AN ADDITION ONLY ON THE GROUND THAT SOME OF THE SUMMONS WHICH WERE ISSUED TO THE APPLICANTS WERE RETURNED UNSERVED, WHEREAS IN T HE CASE OF OTHERS THE SUMMONS THOUGH SERVED, HAD NOT BEEN COMPLIED WITH NOW, IT I S IN THIS BACKGROUND THAT THE DIVISION BENCH OF THE DELHI HIGH COURT NOTED THAT THE ASSESS ING OFFICER 'DID NOT CARRY OUT ANY ENQUIRY INTO THE INCOME TAX RECORD OF THE PERSONS W HO HAD FURNISHED THE DETAILS IN ORDER ITA NO. 1590/AHD/2012 ASST. YEAR 2005-06 6 TO ASCERTAIN THE STATUS OF THE SHARE APPLICANTS. SI GNIFICANTLY, THE JUDGMENT OF THE DELHI HIGH COURT MAKES A DISTINCTION BETWEEN A CASE WHERE SHARES ARE ALLOTTED IN THE COURSE OF A LARGE SCALE SUBSCRIPTION TO THE SHARES OF A PUBLIC COMPANY ON THE ONE HAND AND A CASE OF PRIVATE PLACEMENT ON THE OTHER. IN THE CASE OF ALLOTMENT OF SHARES OF A PUBLIC COMPANY, THE COMPANY MAY HAVE NO IDENTITY OF THE SU BSCRIBERS. THIS DISTINCTION BETWEEN A PUBLIC ISSUE OF SHARE CAPITAL AND PRIVATE PLACEME NT HAS BEEN MADE OUT IN THE FOLLOWING OBSERVATIONS OF THE DELHI HIGH COURT. 15 THERE CANNOT BE TWO OPINIONS ON THE ASPECTS THA T THE PERNICIOUS PRACTICE OF CONVERSION OF UNACCOUNTED MONEY THROUGH THE MASQUER ADE OR CHANNEL OF INVESTMENT IN THE SHARE CAPITAL OF A COMPANY MUST B E FIRMLY EXCORIATED BY THE REVENUE. EQUALLY, WHERE THE PREPONDERANCE OF EVIDEN CE INDICATES ABSENCE OF CULPABILITY AND COMPLEXITY (SIC) OF THE ASSESSEE IT SHOULD NOT BE HARASSED BY THE REVENUE'S INSISTENCE THAT IT SHOULD PROVE THE NEGAT IVE. IN THE CASE OF A PUBLIC ISSUE, THE COMPANY CONCERNED CANNOT BE EXPECTED TO KNOW EVERY DETAILS PERTAINING TO THE IDENTITY AS WELL AS FINANCIAL WOR TH OF EACH OF ITS SUBSCRIBERS. THE COMPANY MUST, HOWEVER, MAINTAIN AND MAKE AVAILABLE TO THE ASSESSING OFFICER FOR HIS PERUSAL, ALL THE INFORMATION CONTAINED IN T HE STATUTORY SHARE APPLICATION DOCUMENTS. IN THE CASE OF PRIVATE PLACEMENT THE LEG AL REGIME WOULD NOT BE THE SAME A DELICATE BALANCE MUST BE MAINTAINED WHILE WA LING THE TIGHTROPE OF SECTIONS 68 AND 69 OF THE INCOME TAX ACT. THE BURDE N OF PROOF CAN SELDOM BE DISCHARGED TO THE HILT BY THE ASSESSEE; IF THE A O HARBOURS DOUBTS OF THE LEGITIMACY OF ANY SUBSCRIPTION HE IS EMPOWERED, NAY DUTY-BOUND, TO CARRY OUT THOROUGH INVESTIGATIONS. BUT IF THE AO FAILS TO UNE ARTH ANY WRONG OR ILLEGAL DEALINGS, HE CANNOT OBDURATELY ADHERE TO HIS SUSPIC IONS AND TREAT THE SUBSCRIBED CAPITAL AS THE UNDISCLOSED INCOME OF THE COMPANY ( EMPHASIS SUPPLIED). 25, NOW, IT IS THIS DECISION OF THE DELHI COURT AGA INST WHICH A SPECIAL LEAVE PETITION BEFORE THE SUPREME COURT CAME TO BE DISMIS SED ON 11 JANUARY 2008. IN CIT VS LOVELY EXPORTS (P) LTD ( 2008) 6 DTR 308( SC) WHITE DISMISSING THE SPECIAL LEAVE PETITION THE SUPREME COURT OBSERVED T HAT IF THE SHARE APPLICATION MONEY WAS RECEIVED BY THE ASSESSEE FROM ALLEGEDLY B OGUS SHARE HOLDERS WHOSE NAMES WERE GIVEN TO THE AO, THE DEPARTMENT WAS FREE TO PROCEED, TO RE - OPEN THEIR INDIVIDUAL ASSESSMENTS IN ACCORDANCE WITH LAW . ON THIS GROUND, THE SUPREME COURT WHILE DISMISSING THE SPECIAL LEAVE PE TITION FOUND NO INFIRMITY IN THE JUDGMENT OF THE DELHI HIGH COURT, THE PRINCIPLE WHICH WAS EMPHASIZED BY THE DEL HI HIGH COURT I/I THE CASE OF LOVELY EXPORTS WAS FOLLOWED BY ANOTHER DIVISION BENCH IN CIT VS VALUE CAPITAL SERVICES (P) LTD ( 2008) 307 ITR 334 (DE LHI). IN CIT VS OASIS HOSPITALITIES (P) LTD(2011) 331 ITR 119. _/_19S TAXMAN 247/9 TAXMAN.COM 179 ( DELHI), A DIVISION BENCH OF THE DELHI HIGH COURT OBSERVED T HAT THE INITIAL BURDEN MUST BE UPON THE ASSESSES TO EXPLAIN THE NATURE AND SOURCE OF THE SHARE APPLICAT ION MONEY RECEIVED. IN ORDER TO DISCHARGE THIS BURDEN, THE ASSESSEE IS REQUIRED TO PROVE (A) IDENTITY OF SHARE HOLDER (B) GENUINENESS OF TR ANSACTION AND (C) CREDIT WORTHINESS OF SHAREHOLDERS. AS FAR AS THE CREDITWORTH INESS OF THE SUBSCRIBER IS CONCERNED, THAT CAN BE PROVED BY PRODUCING A BANK S TATEMENT OF THE SUBSCRIBER SHOWING THAT IT HAS SUFFICIENT BALANCE IN ITS ACCOUNT TO ENABLE IT TO SUBSCRIBE TO THE SHARE CAPITAL. THE DELHI HIGH COURT HELD THAT ONCE THE INITIAL BURDEN HAS BEEN DISCHARGED, THE OBSERVATIONS OF THE SUPREME COURT IN THE CASE OF LOVELY EXPORTS (P) LTD ( SUPRA ) WOULD SUGGEST THAT T HE DEPARTMENT IS FREE TO PROCEED ITA NO. 1590/AHD/2012 ASST. YEAR 2005-06 7 TO REOPEN THE INDIVIDUAL ASSESSMENTS IN THE CASE OF AL LEGED BOGUS SHAREHOLDERS IN ACCORDANCE WITH LAW AND IS NOT REMEDILESS. THIS W OULD BE MORE SO WHEN THE ASSESSEE IS A PUBLIC LIMITED COMPANY AND HAS ISSU ED SHARE CAPITAL TO THE PUBLIC AT LARGE AS IN SUCH CASES THE COMPANY CANNOT BE EXPECTED TO K NOW EVERY DETAIL PERTAINING TO THE IDENTITY AND FINANCIAL WORTH OF THE SUBSCRIBER. HOWEVER, THE INITIAL BURDEN ON THE ASSESSEE WOULD BE SOME W HAT HEAVY IN CASE THE ASSESSEE IS A PRIVATE LIMITED COMPANY WHERE THE SHAREHOLDERS ARE CLOSELY RELATED BECAUSE IN SUCH A CASE, THE ASSESSEE C ANNOT FEIGN IGNORANCE ABOUT THE STATUS OF THE PARTIES. THE JUDGMENT OF A DIVISIO N BENCH OF THIS COURT IN CIT VS CREATIVE WORLD TELEFILMS LTD (2011) 203 TAXMAN 36 ( MAG) 333 ITR 100/15 TAXMANN.COM 183 (BOM) IS ALONG THE SAME LINES. 26. IN THE PRESENT CASE, IT NEEDS TO BE EMPHASIZED THAT THE SETTLEMENT COMMISSION HAS CONSIDERED ALL THE MATERIAL ON RECOR D INCLUDING THE MATERIAL WHICH HAD A BEARING ON THE CREDIT WORTHINESS AND FINANCIAL S TANDING OF THE ALLEGED SUBSCRIBING COMPANIES TO THE SHARE CAPITAL OF THE P ETITIONER. NONE OF THE COMPANIES WAS HELD TO HAVE A FINANCIAL STANDING OR CREDIT WORTHIN ESS WHICH WOULD JUSTIFY MAKING SUCH A LARGE INVESTMENT OF RS. 6 CRORES AT A PRE MIUM OF RS 990/- PER SHARE. THE ALLOTMENT OF SHARES, IT MUST BE NOTED, HAS TAKEN PLA CE IN PURSUANCE OF A PRIVATE PLACEMENT. THE PRINCIPLES WHICH HAVE BEEN APPLIE D IN RELATION PARTICULARLY TO THE PUBLIC SUBSCRIPTION OF SHARES OF A PUBLIC LIMITED COMPANY CAN OBVIOUSLY HAVE NO APPLICATION TO THE FACTS OF A CASE SUCH AS THE PRESENT. THE VIEW WHICH HAS BEEN TAKEN BY THE SETTLEMENT COMMISSION IS CON SEQUENTLY, BORNE OUT ON THE BASIS OF THE MATERIAL ON RECORD. THIS IS NOT A CASE WHERE THE COMMISSION HAS PROCEEDED CONTRARY TO LAW OR ON THE BASIS OF NO EVID ENCE. THERE IS NO PER'ERSITY IN THE FINDINGS OF SETTLEMENT COMMISSION. 27. BEFORE LEAVING THIS ASPECT OF THE MATTER, IT WOULD BE NECESSARY TO ADVERT TO TWO DECISIONS OF THE SUPREME COURT, THE FIRST BEING IN C!T VS P. MOHANAKALA (2007) 161TAXMAN 169 / 291 ITR 278 ( SC). WHILE CON SIDERING THE SCOPE OF SECTION 68, THE SUPREME COURT OBSERVED AS FOLLOWS:- '15. ..... WHEN AND IN WHAT CIRCUMSTANCES SECTION 68 OF THE ACT WOULD COME INTO PLAY? THAT A BARE READING OF SECTION Q8 S UGGESTS THAT THERE HAS TO BE CREDIT OF AMOUNTS IN THE BOOKS .MAINTAINE D BY AN ASSESSES; SUCH CREDIT HAS TO BE OF A SUM DURING THE PREVIOUS YEAR; AND THE ASSESSEE OFFER NO EXPLANATION ABUT THE NATURE AND S OURCE OF SUCH CREDIT FOUND IN THE BOOKS; OR THE EXPLANATION OFFERED BY T HE ASSESSEES IN THE OPINION OF THE AO IS NOT SATISFACTORY. IT IS ONLY ( HEN THE SUM SO CREDITED MAY BE CHARGED TO INCOME - TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR. THE EXPRESSION ' THE ASSESSES OFFER NO EXPLANATION * MEANS WHERE THE ASSESSEES OFFER NO PROPER, REASONABLE AND ACCEPTABLE EXPLANATION AS REGARDS THE SUMS FOUND CREDITED IN T HE BOOKS MAINTAINED BY THE ASSESSEES. IT IS TRUE THE OPINION OF THE AO FOR NOT ACCEPTING THE EXPLANATION OFFERED BY THE ASSESSEE AS NOT SATISFAC TORY IS REQUIRED, TO BE BASES ON PROPER APPRECIATION OF MATERIAL AND OTHER ATTENDING CIRCUMSTANCES AVAILABLE ON RECORD. THE OPINION OF T HE AO IS REQUIRED TO BE FORMED OBJECTIVELY WITH REFERENCE TO THE MATERIA L AVAILABLE ON RECORD. APPLICATION OF MIND IS THE SINE QUA NON FOR FORMING THE OPINION...........................' ITA NO. 1590/AHD/2012 ASST. YEAR 2005-06 8 THE SUPREME COURT NOTED, FOLLOWING THE EARLIER DECI SION IN CIT VS ORISSA CORPN (P) LTD : ( 1986) 159 ITR 78/25 TAXMAN 80 ( SO) THAT WHERE TH E CONCLUSION, OF THE TRIBUNAL WAS NOT REASONABLE OR PERVERSE OR BASE D ON NO EVIDENCE, NO QUESTION OF LAW AS SUCH WOULD ARISE FOR CONSIDERATI ON. THE COURT FURTHER OBSERVED THUS: 25, THE DOUBTFUL NATURE OF THE TRANSACTION AND THE MANN ER IN WHICH THE SUMS WERE FOUND CREDITED IN THE BOOKS OF ACCOUNTS M AINTAINED BY THE ASSESSEE HAVE BEEN DULY TAKEN INTO CONSIDERATION BY THE AUTHORITIES BELOW. THE TRANSACTIONS THOUGH APPARENT WERE HELD T O BE NOT REAL ONE. MAY BE THE MONEY CAME BY WAY OF BANK CHEQUES AND PA ID THROUGH THE PROCESS OF BANKING TRANSACTION BUT THAT ITSELF IS O F NO CONSEQUENCE. ' '28. IN A MORE RECENT JUDGMENT OF THE SUPREME COURT IN VIJAY KUMAR TALWAR VS CIT (2011) 330 ITR 1/196 TAXMAN / 136(201 0) 8 TAXMAN. COM 264 (SC), THE SAME PRINCIPLE WAS APPLIED IN THE FOLLOWING OBSERVATIONS :- ' 24 ALL THE AUTHORITIES BELOW, IN PARTICULAR THE 'TR IBUNAL, HAVE OBSERVED IN UNISON THAT THE ASSESSEE DID NOT PRODUCE ANY EVI DENCE TO REBUT THE PRESUMPTION DRAWN AGAINST HIM UNDER SECTION 68 OF T HE ACT, BY PRODUCING THE PARTIES IN. WHOSE NAME THE AMOUNTS IN QUESTION BID- BEEN CREDITED BY THE ASSESSEE IN-HIS BOOKS OF ACCOUNT. IN THE ABSENCE OF ANY COGENT EVIDENCE, A BALD EXPLANATION FURNISHED BY THE ASSESSEE ABOUT THE SOURCE OF THE CREDITS IN QUESTION VIZ, RE ALIZATION FROM THE DEBTORS OF THE ERSTWHILE FIRM, IN THE OPINION OF TH E AO, WAS NOT SATISFACTORY . IT IS WELL SETTLED THAT IN VIEW OF S ECTION 68 OF THE ACT, WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF THE ASSESSEE FOR PREVIOUS YEAR, THE SAME MAY BE CHARGED TO INCOME TA X AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR, IF THE EXPLA NATION OFFERED BY THE ASSESSEE ABOUT THE. NATURE AND SOURCE THEREOF , IS, IN THE OPINION OF THE ASSESSING OFFICER NOT SATISFACTORY............. ..' 8.2 IN THIS BACKGROUND WE MAY EXAMINE THE JUDGEMEN T OF HON. SUPREME COURT IN THE CASE OF M/S LOVELY EXPORTS (P) LTD. WH ICH IS REPRODUCED HEREIN BELOW '1 ....... DELAY CONDONED. 2. CAN THE AMOUNT OF SHARE MONEY BE REGARDED AS UND ISCLOSED INCOME UNDER SECTION 68 OF THE IT ACT,1961? WE FIND NO MERIT IN THIS SPECIAL LEAVE PE TITION FOR THE SIMPLE REASON THAT IF THE SHARE APPLICATION MONEY IS RECEIVED BY THE ASSESSEE COMPA NY FROM ALLEGED BOGUS SHAREHOLDERS, WHOSE NAMES ARE GIVEN TO THE AO, THEN THE DEPARTMEN T IS FREE TO PROCEED TO RE - OPEN THEIR INDIVIDUAL ASSESSMENTS IN ACCORDANCE WITH LAW. HENC E, WE FIND NO INFIRMITY WITH THE IMPUGNED JUDGMENT. 3. SUBJECT TO THE ABOVE, SPECIAL LEAVE PETITION IS DISMISSED........................... ....' ITA NO. 1590/AHD/2012 ASST. YEAR 2005-06 9 SINCE THIS DECISION WAS GIVEN IN RESPECT OF THE DECISION OF THE HON 'BLE DELHI COURT AGAINST WHICH, THE SLP WAS FILED, THE FINDING S OF THE HONBLE SUPREME COURT ARE TO BE INFERRED IN THE BACKGROUND OF THE F ACTS OF THE SAID CASE. IT IS PERTINENT TO MENTION HERE THAT IN THE CASE OF M/S L OVELY EXPORTS PVT LTD, THE ASSESSING OFFICER HAD MADE AN ADDITION ONLY ON THE GROUND THAT SOME SUMMONS WERE RETURNED 'UN-SERVED' AND SOME PARTIES DID NOT COMPL Y WITH THE SUMMONS ISSUED.' FURTHER, THE HOBBLE DELHI HIGH COURT HELD THAT IN THIS CASE , THE ASSESSING OFFICER DID NOT CARRY OUT ANY FURTHER INQUIRIES AND THEREFO RE, THE ONUS DID NOT SHIFT BACK TO THE ASSESSEE. 8.3 DURING THE COURSE OF APPELLATE PROCEEDINGS, V IDE ORDER SHEET ENTRY DT.7.2.2012 THE APPELLANT CONFIRMED THAT THE SHA RE APPLICATION MONEY WAS BY PRIVATE PLACEMENT AND FRESH CONFIRMATION FRO M SHRI. MUKESH M CHOKSI CANNOT .BE FILED. THE APPELLANT WAS ALSO ASKED TO F ILE THE PRESENT STATUS ES ISSUED IN THE NAME OF THOSE TWO COMPANIES I.E. WHET HER THE SHARES IN THE NAME OF THOSE COMPANIES OR HAVE BEEN TRAN SFERRED TO ELSE. HOWEVER, THE SAID DETAILS WERE NOT FILED BY THE APPELLANT.' 8.4 ON THE BASIS OF FACTS OF THE CASE AND IN THE I NTERPRETATION OF DECISION IN THE CASE OF M/S LOVELY EXPORTS BY THE HON'BLE M URNBAI HIGH COURT'S (SUPRA), I APPARENT .THAT THE DECISION OF M/S L OVELY EXPORTS DOES NOT APPLY IN THE CASE AS IT WAS A CASE OF PRIVATE PLACEMENT AND COLLUSIVE TRANSACTIONS. CASH WAS PAID FOR TAKING ACCOMMODATION ENTRIES. EVIDENCE OF THE SAME FOUND IN THE FORM OF LISTS MAINTAINED BY THE ENT RY PROVIDER. IT IS NOT A CASE WHERE ADDITION HAS BEEN MADE ONLY ON THE BASIS OF S TATEMENT OF ENTRY PROVIDER. THE LISTS FOUND DURING THE COURSE OF SEARCH WERE MAINTAINED BY THE ENTRY PROVIDER IN THE NORMAL COURSE OF HIS BUSINESS. THE APPELLANT WAS INFORMED OF THE EVIDENCE GATHERED BUT, IT NE ITHER REQUESTED FOR CROSS - EXAMINATION OF ENTRY PROVIDER NOR FURNISHED HIS FRESH CONFIRMATION. THE STATEMENT ON OATH OF SHRI MUKESH M. CHOKSI, DIRECTO R OF THOSE TWO COMPANIES WAS ALSO RECORDED DURING THE COURSE OF SEARCH OPERA TION. ...... 8.5 AS DISCUSSED SUPRA, APPELLANT DID NOT GIVE THE OWNERSHIP DETAILS OF THOSE SHARES AS ON DATE. SUBSEQUENT MOVEMENT OF SHA RES AFTER ALLOTMENT TIL! - DATE, IS C CRUCIAL EVIDENCE IN THIS CASE WHICH IS I N THE POSSESSION OF THE APPELLANT, BUT IT NOT TO FURNISH THE SAME. 8.6 THE MERE FACT THAT BOTH THE COMPANIES HAVE ALLO TTED BY PAN AND HAVE BEEN REGISTERED WITH ROC DOES NOT HELP THE CASE OF THE APPELLANT, AS IT CASE OF COLLUSIVE TRANSACTION. IT IS NOT A CASE WHERE TH E ASSESSEE IS BEING ASKED TO ESTABLISH SOURCE OF SOURCE OF FUNDS. IT IS A CASE W HERE APPELLANT HAS CASH FOR TAKING ACCOMMODATION ENTRIES. THE 'APPELLANT IS NEI THER IN A ;N TO FURNISH THE ITA NO. 1590/AHD/2012 ASST. YEAR 2005-06 10 CONFIRMATION OF SHRI MUKESH M CHOKSI AS ON DATE NOR THE PRESENT CONTACT ADDRESSES OF THESE TWO-COMPANIES. SINCE THE DECISION OF HON *BLE SUPREME COURT IN THE CASE OF M/S LOVELY EXPORT (P) LTD. WAS IN RESPECT OF EARLIER DECISION OF HON. DELHI HIGH COURT IT IS WORTHWHILE TO REPRODUCE THE OBSERVATIONS OF THE HON . DELHI HIGH COURTS RECENT JUDGMENT DT.15.02.2012. IN THE CASE OF NOVA PROMOTERS & FINLEASE (P) LTD. REPORTED IN (2012) 206 TAXMAN 207 (DELHI). THE FACTS OF THE CASE ARE SIMILAR TO THE FACTS IN THE CASE OF THE APPELLANT. IN THAT CASE ALSO, THE ISSUE INVOLVED WAS OF AN ENTRY PROVIDER AND EVIDENCE WAS GATHERED BY THE INVESTIGATION WING. THE RELEVANT PORTION OF THE SAI D JUDGMENT IS REPRODUCED HEREINUNDER :- ' 38. THE RATION OF A DECISION IS TO BE UNDERSTOOD AND APPRECIATED IN THE BACKGROUND OF THE FACTS OF THAT CASE. SO UNDERSTOOD, IT WILL BE S EEN THAT WHERE THE COMPLETE PARTICULARS OF THE SHARE APPLICANTS SUCH AS THEIR NAM ES AND ADDRESSES, INCOME TAX FILE NUMBERS, THEIR CREDITWORTHINESS, SHARE APPLICATION FORMS AND SHARE HOLDERS' REGISTER, SHARE TRANSFER REGISTER ETC. ARE FURNISHED TO THE ASSESSING OFFICER AND THE ASSESSING OFFICER HAS NOT CONDUCTED ANY ENQUIRY INTO THE SAME OR HAS NO MATERIAL IN HIS POSSESSION TO SHOW THAT THOSE PARTICULARS ARE FALSE AND CANNOT BE ACTED UPON, THEN NO ADDITION CAN BE MADE IN THE HANDS OF THE COM PANY UNDER SEC. 68 AND THE REMEDY OPEN TO THE REVENUE IS TO GO AFTER THE SHARE APPLICANTS IN ACCORDANCE WITH LAW. WE ARE AFRAID THAT WE CANNOT APPLY THE RATIO TO A CASE, SUCH AS THE PRESENT ONE, WHERE THE ASSESSING OFFICER IS IN POSSESSION OF MATER IAL THAT DISCREDITS AND IMPEACHES THE PARTICULARS FURNISHED BY THE ASSESSEE A ND ALSO ESTABLISHES THE LINK BETWEEN SELF - CONFESSED ACCOMMODATION ' ENTRY PRO VIDERS' WHOSE BUSINESS IT IS TO HELP ASSESSEES BRING INTO THEIR BOOKS OF ACCOUNT 'THEIR UNACCOUNTED MONIES THROUGH THE MEDIUM OF SHARE SUBSCRIPTION, AND THE ASSESSEE. THE RATIO IS INAPPLICABLE TO A CASE, AGAIN SUCH .AS THE PRESENT ONE, WHERE THE INVOL VEMENT OF THE ASSESSEE IN SUCH MODUS OPERAND! IS CLEARLY INDICATED BY VALID MATERIAL MADE AVAILABLE TO THE ASSESSING OFFICER AS A RESULT OF INVESTIGATIONS CARRIED OUT BY THE REVENUE AUTHORITIES INTO THE ACTIVITIES OF SUCH 'ENTRY PROVIDERS'. THE EXI STENCE WITH THE ASSESSING .OFFICER OF MATERIAL SHOWING THAT THE SHARE SUBSCRIPTIONS WE RE COLLECTED AS PART OF A PRE - MEDIATED PART OF A PRE MEDIATED PLAN- A SMOKESCREEN - CONCEIVED AND EXECUTED WITH THE CONNIVANCE OR INVOLVEMENT OF THE ASSESSEE EXCLUDES THE APPLICABILITY OF THE RATIO. IN OUR UNDERSTANDING, THE RATIO IS ATTRACTED TO A CAS E WHERE IT IS A SIMPLE QUESTION OF WHETHER THE ASSESSEE HAS DISCHARGED THE BURDEN PLACE D UPON HIM UNDER SEC. 68 TO PROVE AND ESTABLISH THE IDENTITY AND CREDITWORTHINESS OF THE SHARE APPLICANT AND THE GENUINENESS OF THE TRANSACTION. IN SUCH A CASE, THE A SSESSING OFFICER CANNOT SIT BACK WITH FOLDED HANDS TILL THE ASSESSEE EXHAUSTS ALL THE EVI DENCE OR MATERIAL IN HIS POSSESSION AND THEN COME FORWARD TO MERELY REJECT THE SAME, WITHOUT CARRYING OUT ANY VERIFICATION OR ENQUIRY INTO THE MATERIAL PLACED BEFO RE HIM. THE CASE BEFORE US DOES NOT' FALL UNDER THIS CATEGORY AND IT WOULD BE A T RAVESTY OF TRUTH AND JUSTICE TO EXPRESS A VIEW TO THE CONTRARY....,...............' 10. FROM A PERUSAL OF THE JUDGEMENT, IT IS APPARENT THAT THIS JUDGEMENT OF HON'BLE DELHI HIGH COURT IS SQUARELY APPLIES IN THE CASE OF THE APPELLANT. IN VIEW OF THE LEGAL POSITION DISCUSSED ABOVE, THE APPELLAN T'S APPEAL DESERVES TO BE ITA NO. 1590/AHD/2012 ASST. YEAR 2005-06 11 DISMISSED. THEREFORE, THE ADDITION MADE BY THE ASSE SSING OFFICER IS CONFIRMED AND THE APPEAL IS DISMISSED. 11. IN THE RESULT, APPEAL IS DISMISSED. 5. AGGRIEVED, ASSESSEE IS NOW IN APPEAL BEFORE THE TRIBUNAL. 6. FIRST WE TAKE UP GROUND NO.2 RAISED AGAINST THE ACTION OF LD. CIT(A) CONFIRMING THE ADDITION OF RS.26 LACS U/S 68 OF THE ACT ON ACCOUNT OF SHARE APPLICATION AND SHARE PREMIUM MONE Y RECEIVED BY THE ASSESSEE. 7. AT THE OUTSET LD. AR SUBMITTED THAT THE ISSUE RA ISED IN THIS GROUND IS SQUARELY COVERED IN FAVOUR OF ASSESSEE BY THE DECISION OF THE CO-ORDINATE BENCH IN THE CASE OF M/S PANKAJ ENK A PVT. LTD. VS. DCIT IN ITA NO.816/AHD/2013 FOR ASST. YEAR 2005-06 VIDE ORDER DATED 15.4.2015. 8. ON THE OTHER HAND LD. DR SUPPORTED THE ORDERS OF LOWER AUTHORITIES. 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE BEFORE US IS IN REGARD TO ACTI ON OF LD. CIT(A) IN CONFIRMING THE ADDITION OF RS.26 LACS MADE U/S 68 O F THE ACT FOR SHARE APPLICATION AND SHARE PREMIUM MONEY RECEIVED BY ASS ESSEE DURING THE YEAR AND ADDITION WAS MADE IN THE PROCEEDINGS U /S 143(3) R.W.S.147 OF THE ACT PURSUANT TO NOTICE U/S 148 OF THE ACT. WE OBSERVE THAT LD. AR HAS PLACED RELIANCE ON THE DECISION OF CO-ORDINATE BENCH ITA NO. 1590/AHD/2012 ASST. YEAR 2005-06 12 IN THE CASE OF M/S PANKAJ ENKA PVT. LTD. VS. DCIT ( SUPRA). THE FACTS IN THE APPEAL BEFORE US ARE IDENTICAL TO THE FACTS ADJUDICATED IN THE CASE OF M/S PANKAJ ENKA PVT. LTD. VS. DCIT (SUPRA). IN ORDER TO EXAMINE THE SAME WE REPRODUCE THE NOTICE U/S 148 OF THE ACT RAISED IN THE CASE OF ASSESSEE AT PAGE 13 OF THE PAPER BOO K. REASONS RECORDED FOR REOPENING THE ASSESSMENT. THE RETURN OF INCOME WAS FILED ON 20.09.2O05 DECLAR ING THE INCOME OF RS. NIL/. ORDER U/S!43(3) OF THE ACT WAS COMPLETED ON 28.12.2007 MAKING AN ADDITION OF ES.85,005/- EN ACCOUNT OF EXCESS DEP RECIATION AND RS.73,766/- ON ACCOUNT OF VALUATION OF WORK IN PROGRESS. A SEARCH AND SEIZURE ACTION U/S. 132 OF THE INCOME TAX ACT *?.~CIZ CONDUCTED IN THE CASE OF M/S. MAHASAGAR SECURITIE S PRIVATE LIMITED BY INVESTIGATION WING OF INCOME-TAX DEPARTMENT, MUMBA I, ON 25-11-2009. THE SEARCH WAS CONDUCTED ON THE BASIS OF INFORMATION RE CEIVED IN AN FIU ALERT FROM NEW DELHI REGARDING SUSPICIOUS TRANSACTIONS TA KING PLACE IN THE BANK ACCOUNTS OF THIS COMPANY AND ITS RELATED COMPANIES. THE DIRECTORS OF THESE COMPANIES WERE ONE MUKESH M.CHOKSI AND JAYESH K.SAM PAT. DURING THE COURSE OF THE SEARCH IT WAS REVEALED THAT THE MAHAS AGAR SECURITIES PRIVATE LIMITED AND ITS RELATED GROUP OF 34 ODD COMPANIES ( THE PROMINENT ONES BEING ALLIANCE INTERMEDIARIES & NETWORK PRIVATE LIM ITED, M/S. MIHIR AGENCIES PRIVATE LIMITED, M/S. GOLDSTAR FINVEST PRI VATE LIMITED ETC- ALL RUN BY MUKESH CHOKSI) WERE ENGAGED IN. FRAUDULENT BILL ING ACTIVITIES AND IN THE BUSINESS OF PROVIDING BOGUS SPECULATION PROFIT/LOSS , SHORT TERM/LONG TERM CAPITAL GAIN/LOSS, SHARE APPLICATION MONEY, COMMOD ITIES PROFIT/LOSS ON COMMODITY TRADING (THROUGH MCXJ AND HAD BEEN CONTIN UING THIS BUSINESS FOR MANY YEARS. IN THE LIST OF CLIENTS WHO HAVE TAKEN ACCOMMODATION ENTRIES FROM THESE COMPANIES, THE NAME OF THIS ASSESSEE I.E HARMONY YARN PVT. LTD.. IS AL SO APPEARING. DURING THE COURSE THE PROCEEDINGS THE ST ATEMENT OF SHRI MUKESH CHOKSI, MAIN PERSON BEHIND THIS SCAM, WAS ALSO RECORDED ON 25-1 1-2009. IN HIS STATEMENT RECORDED ON OATH HE HAS ADMITTED THAT THESE TRANSACTIONS ARE BOGUS. ITA NO. 1590/AHD/2012 ASST. YEAR 2005-06 13 FROM THE DETAILS SUBMITTED BY THE INVESTIGATION WI NG IT IS SEEN THAT THE ASSESSEE HAS OBTAINED THE SHARES APPLICATION MONEY OF RS.11,00,000/- FROM MIHIR AGENCY PVT. LTD. ONE OF COMPANY RUN BY MUKESH CHOKSHI, DURING THE FINANCIAL YEAR 2004-05 (A.Y.2005-06). IN VIEW OF TH IS NEW FACT, I HAVE REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPE D ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF THE ACT THE APPROVAL OF THE CIT-I, SURAT IS THEREFORE SOUGH T FOR ISSUE OF NOTICE UNDER THE PROVISIONS OF SECTION 151(2) OF THE ACT. 10. WE FURTHER FIND THAT SIMILAR REASONS WERE RECOR DED IN THE NOTICE RAISED U/S 147 OF THE ACT IN THE CASE OF M/S PANKAJ ENKA PVT. LTD. WHICH IS REPRODUCED BELOW :- REG: M/S. PANKAJ ENKA PVT. LTD., THE RETURN OF INCOME WAS FILED ON 17.10.2005 DECLAR ING THE INCOME OF RS 96,552/-THE SAME IS PROCESSED U/S. 143(1) OF THE AC T. ON 20.03.2006. ACCEPTING THE RETURNED INCOME. NO ORDER U/S 143(3) PASSED IN THIS CASE. A SEARCH AND SEIZURE ACTION U/S. 132 OF THE INCOME TAX ACT WAS CONDUCTED IN THE CASE OF M/S. MAHASAGAR SECURITIES PVT. LTD., BY DY. DIT (INV.)-UNIT -(4), MUMBAI, ON 25.11.2009. THE SEARCH WAS CONDUCTED ON- THE BASIS OF INFORMATION RECEIVED IN AN FIU ALERT FROM NEW DELHI REGARDING SUSPICIOUS TRANSACTIONS TAKING PLACE IN THE BANK ACCOUNTS OF T HIS COMPANY AND ITS RELATED COMPANIES. THE DIRECTORS OF THESES COMPANIE S WERE ONE MUKESH M. CHOKSHI AND JAYESH K. SAMPAT. DURING THE COURSE OF THE SEARCH IT WAS REVEALED THAT THE MAHASAGAR SECURITIES PVT. LTD., A ND ITS RELATED GROUP OF 34 ODD COMPANIES ( THE PROMINENT ONES BEING ALLIANCE I NTERMEDIATES & NETWORK PRIVATE LIMITED, M/S, MIHIR AGENCIES PRIVAT E LIMITED, M/S. GOLD STAR FINVEST PRIVATE LIMITED ETC. ALL RUN BY MUKESH CHOKSHI) WERE ENGAGED IN FRAUDULENT BILLING ACTIVITIES AND IN THE BUSINES S OF PROVIDING BOGUS SPECULATION PROFIT/LOSS, SHORT TERM/LONG TERM CAPIT AL GAIN/LOSS, SHARE APPLICATION MONEY, COMMODITIES PROFIT/LOSS ON COMMO DITY TRADING (THROUGH MCX) AND HAD BEEN CONTINUING THIS BUSINESS FOR MANY YEARS. ITA NO. 1590/AHD/2012 ASST. YEAR 2005-06 14 IN THE LIST OF CLIENTS WHO HAVE TAKEN ACCOMMODATION ENTRIES FROM THESE COMPANIES, THE NAME OF THIS ASSESSEE I.E. PANKAJ ENKA PVT. LTD., IS ALSO APPEARING. DURING THE COURSE THE SEARCH AND SEIZURE PROCEEDINGS THE STATEMENT OF SHRI MUKESH CHOKSHI. MAIN PERSON BEHIN D THE SCAM, WAS ALSO RECORDED ON 25.011.2009. IN HIS STATEMENT RECORDED ON OATH HE HAS ADMITTED THAT THESE TRANSACTIONS ARE BOGUS. FROM THE DETAILS SUBMITTED BY THE INVESTIGATION WIN G, MUMBAI, IT IS SEEN THAT THE ASSESSEE HAS OBTAINED ENTRY OF THE SHARE APPLIC ATION MONEY OF RS. 11,00,000/- FROM MIHIR AGENCY PVT. LTD., ONE OF COMPANY RUN BY SHRI MUKESH CHOKSHI, DURING THE FINANCIAL YEAR 2004-05 ( A.Y. 2005-06). IN VIEW OF THIS NEW FACT, I HAVE REASON 10 BELIEVE THAT INC OME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT WITHIN THE MEANING OI SECTION 14 7 OF THE ACT. IN VIEW OF THE ABOVE, INCOME TO THE EXTENT BEING MO RE THAN RS.1,00,000/-HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 14 7 OF THE ACT. THEREFORE, NOTICE U/S 148 NEED TO BE ISSUED. THE APPROVAL OF THE ADDL. CIT RANGE-I, SURAT IS TH EREFORE, SOUGHT FOR ISSUE OF NOTICE UNDER THE PROVISIONS OF SECTION 151(2) OF THE ACT. 11. FROM COMPARISON OF BOTH THE NOTICES RAISED IN T HE CASE OF ASSESSEE AND M/S PANKAJ ENKA P. LTD. WE OBSERVE THA T THE REASONS RECORDED ARE VERBATIM SIMILAR EXCEPT THE CHANGE OF FIGURE, NAME OF ASSESSEE AND DATE OF ISSUE AND SOME MINOR CHANGES. 12. WE FURTHER OBSERVE THAT ASSESSEE HAS SUBMITTED ALL DETAILS AND SUPPORTING DOCUMENTS TO PROVE THE IDENTITY, CREDITW ORTHINESS AND GENUINENESS OF BOTH THE PARTIES M/S MIHIR AGENCY PV T. LTD. AND M/S BUNIYAD CHEMICALS PVT. LTD. FROM WHOM SHARE APPLICA TION AND SHARE PREMIUM MONEY OF RS.11 LACS AND RS.15 LACS RESPECTI VELY WERE RECEIVED BY THE ASSESSEE IN THE YEAR UNDER APPEAL. THESE DOCUMENTS INCLUDED REGISTRATION CERTIFICATES WITH REGISTRAR O F COMPANIES, PAN ITA NO. 1590/AHD/2012 ASST. YEAR 2005-06 15 ALLOTTED BY THE DEPARTMENT, COPIES OF INCOME-TAX RE TURNS OF BOTH THE COMPANIES, FINANCIAL STATEMENT AND RELEVANT PORTION OF BANK STATEMENT ALONG WITH DULY SIGNED SHARE APPLICATION FORM IN RELATION TO BOTH THE PARTIES NAMELY M/S MIHIR AGENCY PVT. LTD. AND M/S BUNIYAD CHEMICALS PVT. LTD. AND FURTHER NO SPECIFIC DEFECTS HAVE BEEN BROUGHT ON RECORD BY THE LOWER AUTHORITIES IN RESPECT OF GE NUINENESS OF THE DOCUMENTS SUBMITTED BY THE ASSESSEE IN REGARD TO ID ENTITY, GENUINENESS AND CREDITWORTHINESS OF M/S MIHIR AGENC Y PVT. LTD. AND M/S BUNIYAD CHEMICALS PVT. LTD. WE FURTHER FIND THA T CO-ORDINATE BENCH IN THE CASE OF M/S PANKAJ ENKA P. LTD. VS. DC IT IN ITA NO.816/AHD/2013 FOR ASST. YEAR 2005-06 HAS DULY CON SIDERED AND DECIDED SIMILAR ISSUE IN FAVOUR OF ASSESSEE, IN REG ARD TO ADDITION OF RS.85 LACS FROM 12 PARTIES IN REGARD TO SHARE APPLI CATION AND SHARE PREMIUM MONEY, BY OBSERVING AS UNDER :- 6.13 REGARDING ADDITION OF RS. 85,00,000/- ON ACCOU NT OF SHARE, APPLICATION MONEY AND SHARE PREMIUM MONEY, WE FIND THAT ASSESSE E HAS RECEIVED RS. 85,00,000/- TOWARDS SHARE APPLICATION MON EY AND SHARE PREMIUM. LIST OF THE SAID PARTIES IS AS UNDER:- SR. NO. NAME OF THE PARTY SHARE APPLICATION MONEY 1, M/S HITESHWARI MARKETING PVT A .TD., KOLKATA 5,00,000/- 2. M/S JMD MERCANTILE PVT. LTD., KOLKATA 5,00,000/- 3. M/S SUNFLOWER VINIMAY PVT. LTD., KOLKATA 5,00,000/- 4. M/S SUGAM COMMERCIAL PVT. LTD., KOLKATA 5,00,000/- 5. EDMOND COMMERCIAL PVT. LTD. 5,00,000/- 6. M/S BHAGYALAXMI MERCANTILE PVT. LTD., KOLKATA 5,00,000/- 7. M/S KOMAL COMMERCIAL LTD., MUMBAI 10,00,000/- ITA NO. 1590/AHD/2012 ASST. YEAR 2005-06 16 8. DHAWANI MARKETING PVT. LTD. 15,00,000/- 9. EMERALD SYSTEM ENG. LTD. 5,00,000/- 10. M/S LARITE INDUSTRIES LTD., MUMBA 15,00,000/- 11. M/S SARGOSSA INVESTMENT & FINANCE PVT. LTD., MUMBAI 5,00,000/- 12 STUDY SALES PVT. LTD. 5,00,000/ TOTAL 85,00,000/- ASSESSES FILED LIST OF APPLICANTS OF SHARE APPLICAT ION MONEY VIDE LETTER DATED 22.02.2012. A NOTICE U/S. 133(6) OF THE ACT WAS ISS UED ON 12.03.2012 TO ALL PARTIES. ASSESSING OFFICER OBSERVED THAT NO REPLY I S RECEIVED FROM PARTIES AT SR. NOS. 5, 8, 9 85 12. 6.14 FURTHER IN ASSESSMENT ORDER, ASSESSING OFFICER OBSERVED THAT A SSESSEE HAS NOT TILED ANY CONFIRMATION AS WELL AS ORIGINAL SHARE APPLICATION FORM IN RESPECT OF ABOVE 4 PARTIES AND THEREFORE HE MA DE ADDITION. IN RESPECT OF 8 PARTIES, A NOTICE DATED 12.03.2012 U/S 133(6) OF THE ACT WAS ISSUED AND SUBSEQUENTLY A REMINDER DATED 03.04.2012 WAS ISSUED. ASSESSING OFFICER OBSERVED THAT ALL THE PARTIES HAVE GIVEN SA ME K REPLIES ON THE SAME DAY. A SHOW CAUSE NOTICE DATED 23.04.2012 WAS ISSUED TO ASSESSEE AND ASSESSING OFFICER REQUESTED TO SUPPLY DETAILS ALONG WITH CONFIRMATION. ASSESSEE ASKED FOR MORE TIME FOR SUBMISS ION OF DETAILS. HOWEVER, ASSESSING OFFICER WITHOUT PROVIDING SUFFICIENT OPPO RTUNITY WENT ON FINALIZING ASSESSMENT ORDER. IN ASSESSMENT ORDER, HE CONCLUDED THAT ASSESSEE HAS NOT SUBMITTED DETAILS REQUIRED AND FAILED TO ESTABL ISH NATURE AND SOURCE OF CREDIT. ON THIS BASIS, HE MADE ADDITION OF RS. 8 5,00,000/- U/S 68 OF THE ACT TO THE TOTAL INCOME OF ASSESSEE. 6.15 DURING REMAND PROCEEDINGS, ASSESSEE WAS AGAIN REQUESTED TO PRODUCE ORIGINAL SHARE APPLICATION FROM ITS RECO RD IN RESPECT OF 4 PARTIES. ASSESSEE VIDE LETTER DATED 09.08.2012 SUBMITTED COP Y OF APPLICATION FOR SHARE ALONG WITH COPY OF ACKNOWLEDGEMENT OF RETURN , AUDITED STATEMENT AND COPY OF RELEVANT PORTION OF BANK STATEMENT TOGE THER WITH THEIR REPLY IN RESPONSE TO NOTICE U/S. 133(6) IN RESPECT OF 3 OUT OF 4 PARTIES. IN CASE OF STURDY SALES PVT. LTD., NO SUCH DETAILS HAVE BEEN G IVEN BY ASSESSEE. ON VERIFICATION OF COPY OF SHARE APPLICATION FORM, ASS ESSING OFFICER OBSERVED THAT SHARE APPLICATION FORMS WERE NOT BEARING DATE . ITA NO. 1590/AHD/2012 ASST. YEAR 2005-06 17 6.16 FURTHER, DURING REMAND PROCEEDINGS, ASSESSEE A GAIN FILED ALL DETAILS IN REGARD TO 8 PARTIES WHO FILED REPLIES BEFORE ASSESS ING OFFICER IN RESPONSE TO NOTICE U/S. 133(6) OF THE ACT. ASSESSEE FILED ACKNO WLEDGEMENT OF RETURN OF THEIR INCOME AND AUDITED FINANCIAL STATEMENTS AND C OPY OF RELEVANT PORTION OF BANK STATEMENTS OF THE PARTIES. ASSESSEE ALSO PR ODUCED ORIGINAL SHARE APPLICATION FORMS DURING THE REMAND PROCEEDINGS. 6.17 WE FIND THAT ALL THE TRANSACTIONS WERE DULY SU PPORTED BY THE SHARE APPLICATION FORM, ACKNOWLEDGEMENT OF RETURN OF INCOME, AUDITED FINANCIAL STATEMENTS 85 BANK STATEMENTS, ME MORANDUM OF ASSOCIATION (HEREINAFTER REFERRED AS 'MOA') AND ARTICLES OF ASS OCIATION (HEREINAFTER REFERRED AS AOA) OF THE SHARE APPLICANT. ALL THE SHARE APPLICATION MONIES HAVE BEEN RECEIVED THROUGH PROPER BANKING CHANNEL AND THERE IS NO EVIDENCE THAT ASSESSEE HAS PAID ANY MONEY IN CASH T O THE SHARE APPLICANT IN CONSIDERATION OF CHEQUE RECEIVED FROM SHARE. NO INQ UIRY IS MADE BY THE ASSESSING GMCER ONCE THE ASSESSEE HAS DISCHARGED HIS PRIMARY ONUS TO PROVE THE IDENTITY, GENUINENESS AND CREDIT WORTHINESS OF THE SHARE APPLICANTS. ON PERUSAL OF THE BANK STATEMENTS OF SHARE APPLICANT, IT CAN BE SEEN THAT NO CASH HAS BEEN DEPOSITED BY THEM BEFORE ISSUE OF CHEQUE TO ASSESSEE TOWARDS SHARE APPLICATION MONEY. NONE OF T HE PARTIES ARE RELATED TO ASSESSEE COMPANY. THE ASSESSEE HAS PROVED ALL THE T HREE INGREDIENTS OF PROVING A GENUINE CASH CREDIT BY ESTABLISHING IDENT ITY (LIMITED/LISTED COMPANIES), GENUINENESS (TRANSACTIONS THROUGH NORMA L BANKING CHANNEL) AND CREDITWORTHINESS (IT RETURNS AND BALANCE SHEET WITH HUGE SHARE CAPITAL). IF THE ASSESSING OFFICER DOUBTS THE SOURCE OF THE S OURCE OF THE SOURCE, HE WAS FREE TO CONDUCT INQUIRIES IN THE CASE OF PERSONS FROM WHOM ASSESSEE HAS RECEIVED FUNDS. HOWEVER, ON THAT COUNT, ADDI TION CANNOT BE MADE U/S 68 IN THE HANDS OF THE ASSESSEE ONCE THE ASSESSEE D ISCHARGES THE ONUS ON IT AS PER THE REQUIREMENT OF SECTION 68. THE HONOURABL E SUPREME COURT IN CASE OF LOVELY EXPORTS (P) LTD. [216 CTR 195] HAS H ELD THAT 'IF SHARE APPLICATION MONEY IS RECEIVED BY THE ASSESSEE COMP ANY FROM ALLEGED BOGUS SHAREHOLDERS, WHOSE NAMES ARE GIVEN TO THE ASSESSING OFFICER, THEN DEPARTMENT IS FREE TO PROCEED TO REOPEN THEI R INDIVIDUAL ASSESSMENTS IN ACCORDANCE WITH LAW, BUT IT CANNOT BE REGARDED A S UNDISCLOSED INCOME OF ASSESSEE COMPANY. HONOURABLE DELHI HIGH COURT IN CASE OF CIT V. KAMDHENU STEEL & ALLOYS LTD. (2012) 361 ITR 220 ( DELHI) HELD THAT THOUGH INITIAL BURDEN IS UPON THE ASSESSE E, ONCE HE PROVES THE IDENTITY OF CREDIT/SHARE APPLICATIONS BY EITHER FUR NISHING PERMANENT ACCOUNT NUMBERS OR COPIES OF BANK ACCOUNTS AND SHOWS THE GE NUINENESS OF THE ITA NO. 1590/AHD/2012 ASST. YEAR 2005-06 18 TRANSACTION BY SHOWING MONEY IN THE BANKS IS BY AC COUNT PAYEE CHEQUES OR BY DRAFT, ETC., THEN THE ONUS TO WOULD SHIFT TO THE REVENUE. AFTER ASSESSEE FURNISHED THE REQUIRED DETAILS TO THE REVENUE, ONUS SHIFTED TO THE REVENUE AND REVENUE HAS NOT THEREAFTER PROVED THE TRANSACTION O F THE SHARE APPLICATION AS NON-GENUINE. IT HAS BEEN FURTHER HELD IN THIS JUDGE MENT THAT ONCE ADEQUATE EVIDENCE/MATERIAL IS GIVEN, WHICH WOULD PRIMA FACIE DISCHARGE THE BURDEN OF THE ASSESSEE IN PROVING THE IDENTITY OF SHAREH OLDERS, GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS OF THE SHAREHOLDER S, THEREAFTER IN CASE SUCH EVIDENCE IS TO BE DISREGARDED OR IT IS PR OVED THAT IT HAS 'CREATED' EVIDENCE, THE REVENUE IS SUPPOSED TO MAKE THOROUGH PROBE BEFORE IT COULD NAIL THE ASSESSEE AND FASTEN THE ASSESSEE WITH SUCH A LIABILITY U/S 68 OF THE ACT. THE ASSESSING OFFICER FAILED TO CARRY HIS SUSP ICION TO LOGICAL CONCLUSION BY FURTHER INVESTIGATION AND THEREFORE ADDITION U/S 68 WAS NOT SUSTAINABLE. THE ABOVE JUDGMENT IS SQUARELY APPLICABLE TO THE FA CTS OF THE CASE OF ASSESSEE. THE ASSESSING OFFICER AND CIT (A) HAS REL IED UPON THE DECISION OF DELHI HIGH COURT IN THE CASE OF NOVA PROMOTERS F INLEASE PVT. LTD. WHICH HAS BEEN DISTINGUISHED AND DIFFERED BY THE SAME DEL HI HIGH COURT IN THE CASE OF CIT VS. GANGESHWARI METAL (P.) LTD. 30 TAXM ANN.COM 328 WHEREIN IT WAS HELD THAT WHEN AN ASSESSEE BRINGS VARIOUS DOCUM ENTARY EVIDENCES IN SUPPORT OF ITS CLAIM THAT SHARE APPLICATION MONEY I S GENUINE, NO ADDITION CAN BE MADE U/S 68 OF ACT. IN THE RATIO OF NOVA PROMOTE RS FINLEASE PVT. LTD, TWO TYPES OF CASES HAVE BEEN INDICATED. ONE IN WHICH TH E ASSESSING OFFICER CARRIES OUT THE EXERCISE WHICH IS REQUIRED IN LAW A ND THE OTHER IN WHICH THE ASSESSING OFFICER 'SITS BACK WITH FOLDED HANDS' TI LL THE ASSESSEE EXHAUSTS ALL THE EVIDENCE OR MATERIAL IN HIS POSSESSION AND THEN COMES FORWARD TO MERELY REJECT THE SAME ON THE PRESUMPTIONS. THE FACTS OF N OVA PROMOTERS AND FINLEASE (P) LTD, FALL IN THE FORMER CATEGORY AS TH E ASSESSING OFFICER HAD REJECTED THE AFFIDAVITS FILED BY APPLICANTS ON MERI TS; FURTHER THE AO HAD ALSO INITIATED INQUIRIES THROUGH ISSUANCE OF SUMMONS U/S 131 WHICH RETURNED _UNSERVED, AND THAT IS WHY THE COURT DECIDED IN FAVOUR OF THE REVENUE IN SAID CASE. HOWEVER, THE FACTS OF THE PRESENT CASE ARE CLEARLY DISTINGUISHABLE AND FALL IN THE SECOND CATEGORY AND ARE MORE IN LINE WITH FACTS OF LOVELY EXPORTS (P) LTD. (SUPRA). IN THE RE MAND REPORT, THE ASSESSING OFFICER HIMSELF HAS STATED THAT THE ASSESSEE HAS REQUESTED TO ISSUE SUMMONS U/S 131 BUT NO FURTHER PROBE WAS MA DE BY THE ASSESSING OFFICER. THUS THERE WAS A CLEAR LACK OF INQUIRY ON THE PART OF THE ASSESSING OFFICER ONCE THE ASSESSEE HAD FURNISHED ALL THE MAT ERIAL WHICH HAS ALREADY BEEN REFERRED TO ABOVE. FURTHER IN THE CASE OF NOVA PROMOTERS FINLEASE PVT. LTD., THE SHAREHOLDERS DIDN'T CONFIRM THE TRANSA CTIONS OF SHARE CAPITAL AND ADMITTED BEFORE ADDITIONAL COMMISSIONER ( INVESTIGATION) THAT THEY ITA NO. 1590/AHD/2012 ASST. YEAR 2005-06 19 WERE ACTING AS ACCOMMODATION ENTRY PROVIDERS AND TH EREAFTER LATER ON THEY HAVE FILED THE AFFIDAVIT RETRACTING THEIR STATEMENT . THE AFFIDAVITS WERE NOT NOTARIZED AND THE DEPONENTS OF THE AFFIDAVIT DIDN'T APPEAR BEFORE ASSESSING OFFICER FOR CROSS EXAMINATION. SO RATIO OF NOVA P ROMOTERS FINLEASE PVT. LTD. DOES NOT SUPPORT CASE OF REVENUE. IN VIEW OF A BOVE LEGAL AND FACTUAL DISCUSSION ON MERIT, THE ADDITION MADE BY ASSESSING OFFICER OF RS. 1,06,00,000/- [RS.21,00,000/- +RS.85,00,000/-) ON, ACCOUNT OF SHARE APPLICATION MONEY UNDER PROVISION OF SECTION 68 OF ACT IS DIRECTED TO BE DELETED. 7. IN RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. 13. RESPECTFULLY FOLLOWING THE DECISION OF THE CO-O RDINATE BENCH IN THE ABOVE REFERRED CASE, WE ARE OF THE VIEW THAT TH E FACTS DEALT IN BY THE CO-ORDINATE BENCH IN THE CASE OF M/S PANKAJ ENK A P. LTD. VS. DCIT (SUPRA) ARE SIMILAR TO THE FACTS OF THE CASE O F ASSESSEE, AND THEREFORE, IN OUR OPINION THAT ASSESSEE HAS BEEN AB LE TO EXPLAIN THE SOURCE OF SHARE APPLICATION AND SHARE PREMIUM MONEY OF RS.26 LACS RECEIVED FROM M/S MIHIR AGENCY PVT. LTD. AND M/S BU NIYAD CHEMICALS PVT. LTD. ACCORDINGLY THE ADDITION MADE U/S 68 OF T HE ACT IS DELETED. THIS GROUND OF ASSESSEE IS ALLOWED. 14. NOW WE TAKE UP GROUND NOS.1 & 3 WHICH HAVE BEEN RAISED BY THE ASSESSEE AGAINST THE ACTION OF LD. CIT(A) CONFI RMING THE REOPENING OF ASSESSMENT MADE BY LD. ASSESSING OFFIC ER BY ISSUING NOTICE U/S 148 OF THE ACT AND FRAMING THE ASSESSMEN T U/S 143(3) R.W.S. 147 OF THE ACT. ITA NO. 1590/AHD/2012 ASST. YEAR 2005-06 20 14.1 FROM PERUSAL OF THE ORDER OF LD. CIT(A) WE OBS ERVE THAT IN FORM NO.35 FILED BY ASSESSEE AT THE TIME OF FILING OF AP PEAL BEFORE LD. CIT(A) FOLLOWING THREE GROUNDS HAVE BEEN RAISED :- 1. THE LEARNED INCOME TAX OFFICER HAS GROSSLY ER RED IN MAKING ADDITION OF RS. 26, 00,000/- IN THE TOTAL INCOME OF THE APPE LLANT COMPANY U/S 68 OF THE IT A CT. 2 . THE ACTION OF THE LEARNED AO IS NOT JUSTIFIED TO CO NSIDER THE SHARE APPLICATION MONEY RECEIVED BY THE COMPANY AS BOGUS AND UNRELIABLE JUST BASED ON THE STATEMENT PROVIDED BY A THIRD PARTY. 3 THE APPELLANT CRAVES LEAVE TO CHANGE, AMEND, ALTE R, ADD OR DELETE ANY OF THE GROUNDS OF APPEAL. FROM GOING THROUGH THE ABOVE GROUNDS OF APPEAL RAIS ED BY THE ASSESSEE BEFORE LD. CIT(A), WE FIND THAT ASSESSEE H AS NOT RAISED THE GROUND AGAINST THE ACTION OF ASSESSING OFFICER FOR ISSUING NOTICE U/S 148 OF THE ACT AND FURTHER FRAMING ASSESSMENT U/S 1 43(3) R.W.S. 147. NORMALLY GROUNDS OF APPEAL WHICH ARE RAISED BEFORE THE TRIBUNAL OUGHT TO HAVE BEEN RAISED BEFORE LD. CIT(A) WHICH I N THIS CASE HAS NOT BEEN SO. HOWEVER, LOOKING TO THE FACTS OF THE C ASE DISCUSSED BY US WHILE ADJUDICATING GROUND NO.2 OF THIS APPEAL, W HERE WE HAVE APPLIED THE DECISION OF THE CO-ORDINATE BENCH IN TH E CASE OF M/S PANKAJ ENKA PVT. LTD. VS. DCIT (SUPRA), GROUND RELA TING TO ISSUING OF NOTICE U/S 148 AND ASSESSMENT FRAMED U/S 143(3) R.W .S. 147 OF THE ACT WAS DECIDED IN FAVOUR OF ASSESSEE AND THEREAFTE R WHEN REVENUE WENT IN APPEAL BEFORE THE HON. JURISDICTIONAL HIGH COURT IN THE CASE OF PRINCIPAL CIT VS. PANKAJ ENKA PVT. LTD., THE TAX APPEAL NO.967 OF 2015 OF REVENUE WAS DISMISSED VIDE ORDER DATED 5.1. 2016. WE, THEREFORE, ARE OF THE VIEW THAT AS THE ISSUE HAS BE EN SETTLED ON SIMILAR FACTS BY HON. GUJARAT HIGH COURT THEN IT WILL NOT B E DESIRABLE TO SET ITA NO. 1590/AHD/2012 ASST. YEAR 2005-06 21 ASIDE THESE GROUND NOS.1 & 3 RAISED BY THE APPELLAN T IN THIS APPEAL TO THE FILE OF LD. CIT(A) FOR ADJUDICATION AND, THEREF ORE, WE DEAL WITH THESE GROUNDS OF APPEAL. 15. AT THE OUTSET LD. AR REFERRED AND RELIED ON THE DECISION OF HON. JURISDICTIONAL HIGH COURT IN THE CASE OF PRINCIPAL CIT VS. PANKAJ ENKA PVT. LTD. (SUPRA) WHEREIN TAX APPEAL OF THE REVENUE WAS DISMISSED FOR LACK OF QUESTION OF LAW AND THE ORDER OF THE CO -ORDINATE BENCH IN THE CASE OF M/S PANKAJ ENKA PVT. LTD. VS. DCIT WAS UPHELD. 15.1 ON THE OTHER HAND LD. DR COULD NOT CONTROVERT THE SUBMISSIONS OF LD. AR. 16. ON GOING THROUGH THE DECISION OF THE TRIBUNAL I N THE CASE OF M/S PANKAJ ENKA PVT. LTD. VS. DCIT WE FIND THAT THE CO-ORDINATE BENCH HAS DECIDED THE ISSUE BY OBSERVING AS UNDER : - 5. AFTER GOING THROUGH RIVAL SUBMISSIONS AND MA TERIAL ON RECORD. ASSESSEE IS ENGAGED IN BUSINESS OF HIGH SEAS SALES OF IMPORTED GOODS, YEARN, PLASTIC GRANULES ETC. ON THE POINT OF REOPEN ING, WE FIND THAT RETURN OF INCOME WAS FILED BY ASSESSEE ON 17.10.200 5 DECLARING TOTAL INCOME AT RS.96,520/- FOR A.Y. 2005-06. RETURN WA S ACCOMPANIED WITH AUDITED ACCOUNTS AS PER AUDIT REPORT IN FORM N O. 3CB AND 3CD AS DISCUSSED ABOVE. IN THIS CASE, NO ASSESSMEN T WAS MADE UNDER SCRUTINY ASSESSMENT AND RETURN WAS ACCE PTED U/S. 143(1) ON 20.03.2006. THEREAFTER, ASSESSING OFFICER ISSUED NO TICE U/S. 148 ON 01.07.2011 AFTER RECORDING REASONS DATED 23.06.2011 ON THE BASIS OF DETAILS SUBMITTED BY INVESTIGATION WING OF MUMBAI. THE RELEVANT EXTRACTS OF REASONS RECORDED ARE AS UNDER: ITA NO. 1590/AHD/2012 ASST. YEAR 2005-06 22 'THE RETURN OF INCOME WAS FILED ON 17.10.2005 DECLA RING TOTAL INCOME OF RS. 96,552/-, THE SAME IS PROCESSED U/S 143(1) ON 20.03 .2006 ACCEPTING THE RETURNED INCOME. NO ORDER U/S 143(3) PASSED IN THIS CASE. A SEARCH AND SEIZURE ACTION U/S. 132 OF THE INCOME TAX ACT WAS CONDUCTED IN THE CASE OF M/S MAHASAGAR SECURITIES PVT. LTD., BY DY. DIT (INV.)-UNIT - (4), MUMBAI, ON 25.11.2009. THE SEARCH WAS CONDUCTED ON THE BASIS OF INFORMATION RECEIVED IN AN FIU ALERT FROM NEW DELHI REGARDING SUSPICIOUS TRANSACTIONS TAKING PLACE IN THE BANK ACCOUNTS OF T HIS COMPANY AND ITS RELATED COMPANIES. THE DIRECTORS OF THESE COMPANIES WERE ONE MUKESH M. CHOKSHI AND JAYESH K. SAMPAT. DURING THE COURSE OF THE SEARCH IT WAS REVEALED THAT THE MAHASAGAR SECURITIES PVT. LTD., A ND ITS RELATED GROUP OF 34 ODD COMPANIES (THE PROMINENT ONES BEING ALLIANCE IN TERMEDIARIES 85 NETWORK PRIVATE LIMITED, M/S MIHIR AGENCIES PRIVATE LIMITED, M/S GOLD STAR FINEST PRIVATE LIMITED ETC. ALL RUN BY MUKESH CHOKSHI) WERE ENGAGED IN FRAUDULENT BILLING ACTIVITIES AND IN THE BUSINESS O F PROVIDING BOGUS SPECULATION PROFIT/LOSS, SHORT TERM/LONG TERM CAPIT AL GAIN/LOSS, SHARE APPLICATION MONEY, COMMODITIES PROFIT/LOSS ON COMMO DITY TRADING (THROUGH MCX) AND HAD BEEN CONTINUING THIS BUSINESS FOR MANY YEARS. IN THE LIST OF CLIENTS WHO HAVE TAKEN ACCOMMODATION ENTRIES FROM THESE COMPANIES, THE NAME OF THIS ASSESSEE I.E. PANKAJ EN KA PVT. LTD., IS ALSO APPEARING. DURING THE COURSE THE SEARCH AND SEIZURE PROCEEDINGS THE STATEMENT OF SHRI MUKESH CHOKSHI, MAIN PERSON BEHIN D THE SCAM, WAS ALSO RECORDED ON 25.11.2009. IN HIS STATEMENT RECORDED O N OATH HE HAS ADMITTED THAT THESE TRANSACTIONS ARE BOGUS. FROM THE DETAILS SUBMITTED BY THE INVESTIGATION WIN G, MUMBAI, IT IS SEEN THAT THE ASSESSEE HAS OBTAINED ENTRY OF THE SHARE APPLIC ATION MONEY OF RS. 11,00,000/- FROM MIHIR AGENCY PVT. LTD., ONE OF COM PANY RUN BY SHRI MUKESH CHOKSHI, DURING THE FINANCIAL YEAR 2004-05 ( A.Y. 2005-06). IN THE VIEW OF THIS NEW FACT, I HAVE REASON TO BELIEVE THA T INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTIO N 147 OF THE ACT. IN VIEW OF THE ABOVE, INCOME TO THE EXTENT BEING MO RE THAN RS.1,00,000/- HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 14 7 OF THE ACT. THEREFORE, NOTICE U/S.148 NEED TO BE ISSUED. THE APPROVAL OF THE ADDL CIT RANGE-I, SURAT IS THER EFORE, SOUGHT FOR ISSUE OF NOTICE UNDER THE PROVISIONS OF SECTION 151(2) OF TH E ACT' ITA NO. 1590/AHD/2012 ASST. YEAR 2005-06 23 5.1 THE PLAIN READING OF REASONS RECORDED BY ASSESS EE MAKES IT CLEAR THAT NOTICE U/S. 148 WAS ISSUED AS PER INFORMATION RECEIVED FROM INVESTIGATION WING FROM MUMBAI. THE REASONS RECORDE D BY ASSESSING OFFICER ONLY INDICATE THAT AS PER INFORMATION OF IN VESTIGATION WING FROM MUMBAI, CERTAIN COMPANIES OF MUKESH CHOKSHI GROUP W ERE OPERATING AND ALLEGEDLY PROVIDING ACCOMMODATION ENTRIES AND A SSESSEE HAS ALSO RECEIVED SHARE APPLICATION MONEY FROM SUCH COMPANY. ASSESSING OFFICER JUST MADE GENERAL OBSERVATION ABOUT INFORMA TION SUPPLIED BY INVESTIGATION WING AND SOUGHT TO REOPEN THE ASSESSM ENT WITHOUT POINTING OUT HOW INFORMATION COMING IN HIS PO SSESSION HAS NEXUS WITH ESCAPEMENT OF INCOME. THE PRIMARY CONDITIO N OF SECTION 148 OF THE ACT IS THAT ASSESSING OFFICER MUST HAVE REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT AND THIS SATISFACTION SHOULD BE OF ASSESSING OFFICER HIMSELF AND NOT A BORROWED SATISF ACTION. THEREFORE, NOTICE SO ISSUED TO ASSESSEE WAS ILLEGAL AND BAD IN LAW ON FACT OF IT. 5.2 AS PER THE PROVISIONS OF SECTION 147/148, IT IS CLEAR THAT FOR TAKING ACTION U/S 147 OF THE ACT, ASSESSING OFFICER MUST H AVE REASON TO BELIEVE THAT AN INCOME CHARGEABLE TO TAX HAS ESCAPE D ASSESSMENT FOR ANY ASSESSMENT YEAR. THEREFORE, ASSESSING OFFICER M UST SATISFY HIMSELF REGARDING ESCAPEMENT OF INCOME. HE SHOULD NOT ACT MECHANICALLY OR ON INFORMATION SUPPLIED BY ANY OTHER PERSON. IN THE PR ESENT CASE, ASSESSING OFFICER ACTED ON INFORMATION SUPPLIED BY THE DIRECTORATE OF INCOME TAX (INV.), MUMBAI BUT HE HAS NOT APPLIED HIS INDEPENDENT MIND AND REASSESSMENT PROCE EDINGS WERE INITIATED ONLY ON THE BASIS OF INFORMATION RECEIVED FROM ABOVE INVESTIGATION WING MUMBAI. HONBLE DELHI HIGH COU RT IN CASE OF CIT V. KAMDHENU STEEL & ALLOYS LTD, (2012) 361 ITR 220 (DELHI) OBSERVED THAT WHERE ASSESSING OFFICER ACTED MECHANICALLY ON INFORMATION SUPPLIED BY THE DIRECTORATE OF IT (I NV.) ABOUT THE ALLEGED BOGUS/ACCOMMODATION ENTRIES PROVIDED BY CER TAIN INDIVIDUALS/COMPANIES, WITHOUT APPLYING HIS OWN MIN D, HE WAS NOT JUSTIFIED IN INVOKING JURISDICTION U/S. 147. HONB LE APEX COURT IN CASE OF CALCUTTA DISCOUNT CO. LTD. (1961) 41 IT R 191 (SC) ANALYSED ITA NO. 1590/AHD/2012 ASST. YEAR 2005-06 24 THE PHRASE 'REASON TO BELIEVE' AND OBSERVED THAT 'I T IS FOR HIM TO DECIDE WHAT INFERENCES OF FACTS CAN BE REASONABLY DRAWN AN D WHAT LEGAL INFERENCES HAVE ULTIMATELY TO BE DRAWN.' 5.3 THE CASE OF ASSESSEE IS SQUARELY COVERED BY THE DECISION OF ITAT, JODHPUR BENCH IN CASE OF M/S SURBHI MMCHEM PVT. LTD . (ITA NOS. 102 & 103/JODH/2014). IN SAID CASE, CASE WAS REOPENED U /S. 148 ON THE BASIS OF SAME STATEMENT OF MUKESH CHOKSI DATED 25.11.2009 , THE DIRECTOR OF MAHASAGAR GROUP OF COMPANIES AND ON THIS POINT IT W AS HELD AS UNDER: ' THE REASON RECORDED BY THE ASSESSING OFFICER WERE MERELY ON THE BASIS OF INFORMATION RECEIVED FROM DDIT (INV.) UDAIPUR AN D MUMBAI, THEREFORE, FROM THE SO CALLED REASON, IT WAS NOT AT ALL DISCERNABLE AS TO WHETHER THE ASSESSING OFFICER HAD APPLIED HIS MIND TO THE INFORMATION AND INDEPENDENTLY ARRIVED AT A BELIEF THAT ON THE B ASIS OF THE MATERIAL WHICH HE HAD BEFORE HIM THE INCOME HAD ESCAPED ASSE SSMENT, THEREFORE, THE REASSESSMENT U/S 147 OF THE ACT WAS NOT VALID A ND ACCORDINGLY THE SAME IS QUASHED. SINCE WE HAVE QUASHED THE REASSESS MENT ORDER, THEREFORE, NO FINDINGS ARE BEING GIVEN FOR THE GROU NDS RAISED BY THE ASSESSEE ON MERIT.' THE REASONS RECORDED IN CASE OF M/S. SURBHI MINCHEM PVT. LTD. (SUPRA) U/S. 148 ARE REPRODUCED AS UNDER: 'IN DUE COURSE, THE INFORMATION HAVE RECEIVED FROM THE DDIT (INV.-2), UDAIPUR ALONGWITH REPORT OF THE DDIT (INV.), UNIT-1 (4), MUMBAI THAT SEARCH & SEIZURE ACTION UNDER SECTION 132 OF THE IN COME TAX ACT, 1961 WAS UNDERTAKEN IN THE CASE OF MAHASAGAR GROUP OF CO MPANIES MUMBAI ON 25.11.2009 ON THE BASIS OF INFORMATION RECEIVED IN AN FIU ALERT FROM NEW DELHI REGARDING SUSPICIOUS TRANSACTIONS TAKING PLACE IN THE BANK ACCOUNTS OF M/S MAHASAGAR SECURITIES PRIVATE LIMITE D AND ITS RELATED COMPANIES. THE DIRECTORS OF THESE COMPANIES WERE ON E MUKESH CHOKSI AND JAYESH K. SAMPAT. DURING THE COURSE OF SEARCH I T WAS REVEALED THAT THE MAHASAGAR SECURITIES PRIVATE LIMITED AND ITS RE LATED GROUP OF 34 ODD COMPANIES (THE PROMINENT ONES BEING M/S. ALLIAN CE INTERMEDIATERIES & NETWORK PRIVATE LIMITED, M/S MIH IR AGENCIES ITA NO. 1590/AHD/2012 ASST. YEAR 2005-06 25 PRIVATE LIMITED, M/S. GOLDSTAR FINVEST PRIVATE LIMI TED, ETC. ALL RUN BY MUKESH CHOKSI) WERE ENGAGED IN FRAUDULENT BILLING A CTIVITIES AND IN THE BUSINESS OF PROVIDING BOGUS SPECULATION PROFIT/TOSS , SHORT TERM/LONG TERM GAIN/LOSS, SHARE APPLICATION MONEY, COMMODITIE S PROFIT/LOSS ON COMMODITY TRADING (THROUGH MCX) AND HAD BEEN CONTIN UING THIS BUSINESS FROM MANY YEARS IN THIS BACKGROUND, WE FIND THAT LANGUAGE US ED IN ABOVE REASONS RECORDED IS EXACTLY SAME AS IN CASE OF ASSESSEE AND HENCE THE CASE OF ASSESSEE IS SQUARELY COVERED BY CASE OF M/S SURBHI MINCHEM PVT. LTD. (SUPRA). IN FACT PARA NO. 2 OF REASONS RECORDED IN CASE OF ASSESSEE AND ABOVE PARA OF REASONS RECORDED IN CASE OF SURBHI MINCHEM PVT. LTD. WAS EXACTLY SAME. IN THE SAID CASE, CA SE WAS REOPENED U/S 148 BY ASSESSING OFFICER MERELY ON THE BASIS OF I NFORMATION RECEIVED FROM INVESTIGATION WING, MURNBAI, AND THEREFORE, FR OM REASON RECORDED, IT WAS NOT AT ALL DISCERNABLE AS TO WHETHER ASSESSI NG OFFICER HAD APPLIED HIS MIND TO THE INFORMATION AND INDEPENDENTLY ARRIVED AT BELIEF ON THE BASIS OF MATERIAL WHICH HE HAD BEFORE HIM THAT IF ANY INCOME HAD ESCAPED ASSESSMENT AND THEREFORE, AS SESSMENT FRAMED U/S. 143(3) R.W.S. 147 WAS REQUESTED TO BE QUASHE D. NOTHING CONTRARY WAS BROUGHT TO OUR KNOWLEDGE WITH REGARDS TO DECISI ON TAKEN IN SIMILAR FACTS AND CIRCUMSTANCES IN CASE OF M/S. SURBH I MINCHEM PVT. LTD. (SUPRA) WHEREIN REOPENING WAS QUASHED ON T HE GROUND REOPENING U/S. 148 OF THE ACT BY ASSESSING OFFICER WAS DONE M ERELY ON THE BASIS OF INFORMATION FROM INVESTIGATION WING, MUMBAI. EVEN IN CASE BEFORE US, IT CANNOT BE INFERRED THAT CONCERN ASSESSING OF FICER HAS APPLIED HIS MIND INFORMATION AND INDEPENDENTLY ARRIVED AT CERTA IN BELIEF ON THE BASIS OF MATERIAL BEFORE HIM THAT ANY INCOME HAD ESCAPED ASSESSMENT. IN VIEW OF ABOVE LEGAL DISCUSSION, ASSESSMENT FRAMED U/S. 1 43(3) R.W.S. 147 OF ACT IS QUASHED. 17. FURTHER ON GOING THROUGH THE DECISION OF HON. J URISDICTIONAL HIGH COURT IN THE CASE OF PRINCIPAL CIT VS. M/S PAN KAJ ENKA PVT. LTD. WE FIND THAT REVENUE WENT IN APPEAL AGAINST THE ORD ER OF THE TRIBUNAL AND THEIR LORDSHIPS HAVE DISMISSED THE TAX APPEAL N O.967 OF 2015 ITA NO. 1590/AHD/2012 ASST. YEAR 2005-06 26 OF REVENUE AS THEY WERE OF THE VIEW THAT NO QUESTIO N OF LAW AROSE IN THE APPEAL, BY OBSERVING AS UNDER :- 2. ESSENTIALLY THREE QUESTIONS ARE RAISED. FIRST I S WITH RESPECT TO REOPENING OF ASSESSMENT BEYOND A PERIOD OF FOUR YEA RS. THE TRIBUNAL RECORDED THAT THE ASSESSING OFFICER ONLY ON THE BAS E OF INFORMATION SUPPLIED BY THE INVESTIGATION WIND AT MUMBAI THAT THE ASSESS EE HAD RECEIVED SHARE APPLICATION MONEY FROM ONE OF THE TAINTED COMPANIES , ISSUED NOTICE. THE TRIBUNAL WAS OF THE OPINION THAT THE ASSESSING OFFI CER HIMSELF DID NOT SATISFY ABOUT THE REQUIREMENT AND ISSUED NOTICE UNDER SECTI ON 148 OF THE ACT WITHOUT FORMING A REASON TO BELIEVE THAT THE INCOME OF THE ASSESSEE HAD ESCAPED ASSESSMENT. THE TRIBUNAL REGARDLESSLY PROCEEDED TO EXAMINE THE ISSUE ON MERITS AND DELETED THE ADDITION OF RS.21 LACS AND F URTHER DELETED ADDITION OF RS.85 LACS TOWARDS SHARE APPLICATION MONEY. UPON PE RUSAL OF THE JUDGEMENT OF THE TRIBUNAL WITH THE ASSISTANCE OF LEARNED COUN SEL FOR THE REVENUE, WE ARE OF THE OPINION THAT THE ISSUES RAISED ARE FUNDA MENTALLY QUESTIONS OF FACTS. THE TRIBUNAL HAVING PERUSED THE FACTS ON RECORD COM E TO THE FACTUAL FINDINGS. NO QUESTION OF LAW ARISES. UNDER THE CIRC UMSTANCES QUITE APART FROM THE VALIDITY OF REOPENING, IN OUR OPINION, JUD GEMENT DOES NOT REQUIRE ANY FURTHER CONSIDERATION. TAX APPEAL IS THEREFORE, DISMISSED. 18. RESPECTFULLY FOLLOWING THE DECISION OF HON. JUR ISDICTIONAL HIGH COURT IN THE CASE OF PRINCIPAL CIT VS. PANKAJ ENKA PVT. LTD. (SUPRA) AND THE DECISION OF THE CO-ORDINATE BENCH IN THE CA SE OF M/S PANKAJ ENKA PVT. LTD. VS. DCIT (SUPRA), WE ALLOW THE GROUN DS OF ASSESSEE AND QUASH THE ASSESSMENT FRAMED U/S 143(3) R.W.S. 1 47 OF THE ACT. ITA NO. 1590/AHD/2012 ASST. YEAR 2005-06 27 19. GROUND NO.4 IS GENERAL IN NATURE, WHICH NEEDS N O ADJUDICATION. 20. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 01/04/2016 SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 01/ 04 /2016 MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: 21/03/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 22/03/2016 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 01/04/16 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: