Vimala Devi, Bengaluru V. Income Tax Officer , Ward-7(2)(2), Bengaluru

ITA 178/BANG/2018

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5538 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 17-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHANKAR PRASAD K JDIT
• Assessee Lawyers: B SUDHEENDRA
• Keywords: Principle of natural justice; Accommodation entries; Reassessment proceedings
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH SMC-A, BANGALORE BEFORE SHRI A.K.GARODIA, ACCOUNANT MEMBER ITA NOS.177 & 178 (BANG) 2018 (ASSESSMENT YEARS : 2008 09 & 2009 10) SMT. VIMALA DEVI, NO. 27, 7 TH CROSS, 5 TH MAIN ROAD, S. R. NAGAR, BANGALORE 560027. PAN. AGGPD9558M APPELLANT VS THE ITO, WARD 7 (2)(2), BANGALORE. RES PONDENT & ITA NO.179(BANG) 2018 (ASSESSMENT YEAR : 2008 09) SMT. LAKSHMI DEVI, NO. 27, 7 TH CROSS, 5 TH MAIN ROAD, S. R. NAGAR, BANGALORE 560027. PAN. AEVPD4488C APPELLANT VS THE ITO, WARD 7 (2)(2) BANGALORE. RESPONDENT & ITA NO.180(BANG) 2018 (ASSESSMENT YEAR : 2008 09) SMT. DAI DEVI, NO. 27, 7 TH CROSS, 5 TH MAIN ROAD, S. R. NAGAR, BANGALORE 560027. PAN. AEVPD4489D APPELLANT VS THE ITO, WARD 7 (2)(2), BANGALORE. RESPONDENT ITA NOS. 177 TO 181(BANG)2018 2 & ITA NO.181(BANG) 2018 (ASSESSMENT YEAR : 2008 09) SMT. RANGILA SOLANKI, NO. 27, 7 TH CROSS, 5 TH MAIN ROAD, S. R. NAGAR, BANGALORE 560027. PAN. APHPS0961E APPELLANT VS THE ITO, WARD 7 (2)(2) BANGALORE. RESPONDENT ASSESSEE BY : SHRI B. SUDHEENDRA, C. A. REVENUE BY : SHRI SHANKAR PRASAD K, JDIT DR DATE OF HEARING : 21-02-2018 DATE OF PRONOUNCEMENT : 23-02-2018 O R D E R PER A. K. GARODIA, A.M.: ALL THESE FIVE APPEALS ARE FILED BY FOUR DIFFERENT BUT CONNECTED ASSESSEES WHICH ARE DIRECTED AGAINST FIVE SEPARATE ORDERS OF CIT (A ) 7 BANGALORE ALL DATED 02.01.2018. SINCE THE ISSUE INVOLVED IS COMMON, ALL THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON O RDER FOR THE SAKE OF CONVENIENCE. 2. THE GROUND NO. 3 IN ALL THESE APPEALS IS IDENTIC AL AND IT READS AS UNDER:- IN ANY CASE, NEITHER THE INFORMATION RECEIVED FROM CIT, CENTRAL IV, MUMBAI REGARDING ACCOMMODATION ENTRIES NOR THE SWOR N STATEMENT RECORDED FROM MR. MUKESH CHOKSI WAS PROVIDED TO THE ASSESSEE FOR REBUTTAL TO THE REASSESSMENT PROCEEDINGS DESPITE TH E ASSESSEES REQUEST BEFORE THE ASSESSING OFFICER TO PROVIDE THE SAME. THE ASSESSEES REQUEST FOR CROSS EXAMINING MR. MUKESH C HOKSI WAS ALSO NOT AT ALL CONSIDERED. THUS THE REASSESSMENT PROCEE DINGS AND THE ORDER U/S 147 R.W.S. 143 (3) HAS BEEN PASSED CONTRA RY TO PRINCIPLES OF NATURAL JUSTICE AND HENCE THE IMPUGNED ORDER PASSED SHOULD BE QUASHED. 3. LEARNED AR OF THE ASSESSEE SUBMITTED THAT SIMILA R ISSUE WAS DECIDED BY THE TRIBUNAL IN THE CASE OF SHRI MUKESH KUMAR SOLANKI V S. ITO IN ITA NO. ITA NOS. 177 TO 181(BANG)2018 3 2168/BANG/2016 DATED 17.03.2017. A COPY OF THIS TRI BUNAL ORDER WAS SUBMITTED AND IT WAS POINTED OUT THAT THE TRIBUNAL HAS FOLLOW ED THE JUDGMENT OF HONBLE KARNATAKA HIGH COURT RENDERED IN THE CASE OF CHANDR A DEVI KOTHARI IN WRIT PETITION NO. 39370/2014 DATED 02.02.2015AND REPRODU CED THE RELEVANT PARA 8 OF THAT JUDGMENT IN PARA 5 OF THIS TRIBUNAL ORDER A ND AS PER PARA 6 OF THAT TRIBUNAL ORDER, THE MATTER WAS RESTORED TO THE FILE OF THE AO FOR FRESH DECISION WITH THE SAME DIRECTIONS AS WERE GIVEN BY THE HONB LE KARNATAKA HIGH COURT IN THAT CASE AS PER PARA 8 OF THAT JUDGMENT. HE SUBMIT TED THAT IN THE PRESENT CASE ALSO, THE MATTER SHOULD BE RESTORED TO THE FILE OF THE AO FOR FRESH DECISION WITH THE SAME DIRECTIONS AS WERE GIVEN BY THE HONBLE KA RNATAKA HIGH COURT IN THAT CASE AS PER PARA 8 OF THAT JUDGMENT. LEARNED DR OF THE REVENUE SUPPORTED THE ORDER OF CIT (A). HE ALSO SUBMITTED THAT IT IS NOTE D BY CIT (A) IN PARA 8 OF HIS IDENTICAL ORDERS THAT NO REQUEST WAS MADE BY THE AS SESSEE SPECIFICALLY FOR THE STATEMENT OF MR. MUKESH CHOKSI AND THEREFORE, THE F ACTS IN THE PRESENT CASES ARE DIFFERENT. IN REJOINDER, LEARNED AR OF THE ASSE SSEE SUBMITTED THAT COPY OF THE REPLY DATED 10.02.2014 FILED WITH THE AO ON 19. 02.2014 IS AVAILABLE IN THE RESPECTIVE PAPER BOOKS AND AS PER THAT LETTER, THE AO WAS SPECIFICALLY REQUESTED TO SHARE WITH THE ASSESSEE THE DETAILS/EV IDENCES WHICH ARE IN THE POSSESSION OF THE AO ON THE BASIS OF WHICH, IT IS A LLEGED BY THE AO THE TRANSACTIONS IN QUESTION REPRESENTED ACCOMMODATION ENTRIES GIVEN BY MUKESH CHOKSI GROUP AND IT WAS ALSO REQUESTED THAT AFTER G ETTING THE MATERIAL, IF REQUIRED, THE ASSESSEE WILL REQUEST FOR CROSS EXAMI NATION OF MR. MUKESH CHOKSI. IT WAS SUBMITTED THAT THERE IS NO DIFFERENC E IN FACTS. 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. I FIND THAT THERE IS NO DIFFERENCE IN FACTS IN THE PRESENT CASE AND IN THE CASE OF SHRI MUKESH KUMAR SOLANKI VS. ITO (SUPRA). IN THAT CASE, THE ISSUE WAS DECIDED AS PER PARA 5 & 6 OF THAT TRIBUNAL ORDER AND THESE PARAS OF THAT TRIBUNAL ORDER ARE RE PRODUCED HERE IN BELOW FOR READY REFERENCE. THESE ARE AS UNDER:- 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FIRS T OF ALL, I REPRODUCE PARA NO.8 OF THE JUDGMENT OF HON'BLE KARN ATAKA HIGH COURT RENDERED IN THE CASE OF M/S CHANDRA DEVI KOTH ARI (SUPRA) AND THIS IS AS UNDER:- 8. IN THE LIGHT OF THE FACTS AND CIRCUMSTANCES AS A DVERTED TO ABOVE, AND AS THE PETITIONER HAS BEEN DENIED AN OPP ORTUNITY OF ITA NOS. 177 TO 181(BANG)2018 4 FAIR HEARING BY PROVIDING COPY OF THE STATEMENT AND RELATED DETAILS REGARDING THE ALLEGED SHARE AMOUNT, I AM OF THE VIEW THAT THE MATTER REQUIRES TO BE RE-CONSIDERED BY THE RESPONDENT BY PROVIDING FAIR AND REASONABLE OPPORTUNITY OF HEA RING TO THE PETITIONER AND BY FURNISHING THE DETAILS/COPY OF TH E STATEMENT BASED ON WHICH THE IMPUGNED ASSESSMENT ORDER HAS BE EN PASSED.' 6. FROM THE ABOVE PARA FROM THE JUDGMENT OF HON'BLE KARNATAKA HIGH COURT, IT IS SEEN THAT MATTER WAS RESTORED BAC K TO THE FILE OF THE AO FOR FRESH DECISION AFTER PROVIDING COPY OF THE S TATEMENT OF SHRI MUKESH CHOKSI. AS PER THE FACTS NOTED BY THE H IGH COURT IN THE EARLIER PARAS OF JUDGMENT AND AS PER THE FACTS OF T HE PRESENT CASE, I FIND THAT THE FACTS ARE SIMILAR AND LD DR OF THE RE VENUE ALSO COULD NOT POINT OUT ANY DIFFERENCE IN FACTS AND HENCE, BY RES PECTFULLY FOLLOWING THIS JUDGMENT OF KARNATAKA HIGH COURT, I SET ASIDE THE ORDER OF LD CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE AO FOR FRESH DECISION WITH THE SAME DIRECTIONS AS WERE GIVEN BY THE HON'B LE KARNATAKA HIGH COURT IN THE CASE AS PER PARA NO.8 OF THE JUDGMENT REPRODUCED ABOVE. IN VIEW OF THIS DECISION, NO ADJUDICATION IS CALLED FOR AT THIS STAGE REGARDING THE MERIT OF THE ADDITION. 5. RESPECTFULLY FOLLOWING THIS TRIBUNAL ORDER AND I N TURN FOLLOWING THE JUDGMENT OF HONBLE KARNATAKA HIGH COURT RENDERED IN THE CASE O F CHANDRA DEVI KOTHARI (SUPRA), I SET ASIDE THE ORDERS OF CIT (A) IN ALL T HE PRESENT CASES AND RESTORE THE MATTER BACK TO AO FOR A FRESH DECISION WITH SAM E DIRECTIONS AS WERE GIVEN BY HONBLE KARNATAKA HIGH COURT IN THAT CASE AS PER PARA NO. 8 OF THAT JUDGMENT REPRODUCED ABOVE. IN VIEW OF THIS DECISION , NO ADJUDICATION IS CALLED FOR AT THIS STAGE REGARDING THE MERIT OF THE ADDITI ON RAISED BEFORE ME AS PER REMAINING GROUNDS. 6. IN THE RESULT, ALL THE FIVE APPEALS OF THE ASSES SEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- (A.K. GARODIA) ACCOUNTANT MEMBER BANGALORE D A T E D : 23.02.2018 /MS/ ITA NOS. 177 TO 181(BANG)2018 5 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.