Radhey Shyam Bansal, Delhi V. ACIT, New Delhi

ITA 1795/DEL/2017

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 7212 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2012-2013
• Appeal Filed On: 24-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUSHMA SINGH
• Keywords: Gift; Search and seizure; Document seized; Accommodation entries; Assessment record; Onus to prove; Documents seized
• Section: 142(1); 153A; 133(6); 143(2); 13; 153; 131; 132; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH, F: NEW DELHI (THROUGH VIDEO CONFERENCING) BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE, JUDICIAL MEMBER ITA NOS.1789 TO 1795 /DEL/2017 [ASSESSMENT YEARS: 2006-07 TO 2012-13] RADHE SHYAM BANSAL, 202, IIND FLOOR, E-371, NIRMAN VIHAR, DELHI-110092 ACIT, CENTRAL CIRCLE-14, NEW DELHI PAN-AAGPB1737M ASSESSEE REVENUE ASSESSEE BY SH. MAYANK PATWARI, CA REVENUE BY SMT. SUSHMA SINGH CIT-DR DATE OF HEARING 29.07.2021 DATE OF PRO NOUNCEMENT 03.09.2021 ORDER PER R.K. PANDA, AM, THE ABOVE SEVEN APPEALS FILED BY THE ASSESSEE ARE D IRECTED AGAINST THE SEPARATE ORDERS DATED 21.12.2021 OF THE LEARNED CIT(A)-30, NEW DELHI, RELATING TO ASSESSMENT YEARS 2006-07 TO 2012-13 RESPECTIVELY. SINCE, IDENTICAL GROUNDS HAV E BEEN TAKEN BY THE ASSESSEE IN ALL THESE APPEALS, THEREFORE, TH ESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON O RDER. ITA NO.1789/DEL/2017 (AY 2006-07) 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSES SEE IS AN INDIVIDUAL. A SEARCH AND SEIZURE ACTION U/S 132 OF THE INCOME 2 ITA NOS.1789 TO 1795/DEL/2017 TAX ACT, 1961 (IN SHORT THE ACT) WAS CONDUCTED ON THE ASSESSEE ON 11.04.2011. IN RESPONSE TO NOTICE U/S 153A OF T HE ACT ISSUED ON 28.03.2013, THE ASSESSEE FILED THE RETURN OF INC OME ON 19.12.2013 DECLARING TOTAL INCOME OF RS.1,41,930/-. THE AO ISSUED STATUTORY NOTICE U/S 143(2) OF THE ACT AND A LSO A QUESTIONNAIRE ALONG WITH NOTICE U/S 142(1) OF THE A CT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTED THAT THE ASSESSEE WAS INTRODUCER IN OPENING OF BANK ACCOUNTS IN THE CASE OF ABOUT 30 PARTIES. ON PERUSAL OF THE BANK STATEM ENT OF THESE PARTIES, HE NOTED THAT THERE ARE VARIOUS CASH DEPOS ITS IN THESE ACCOUNTS AND THE AMOUNT CREDITED IN THESE BANK ACCO UNTS ARE ROTATED EITHER IN THE ACCOUNTS OF THE COMPANIES CON TROLLED BY THE ASSESSEE SUCH AS BANSAL INFINLEASE (P) LTD. AND BAN SAL INHOLD LTD. OR THE CHEQUES HAVE BEEN ISSUED TO DIFFERENT P ARTIES. HE THEREFORE, ASKED THE ASSESSEE TO EXPLAIN AS TO WHY THE DEPOSITS IN THESE BANK ACCOUNTS SHOULD NOT BE TREATED AS INC OME OF THE ASSESSEE IN THE YEAR OF DEPOSITS. HE ALSO ASKED THE ASSESSEE TO EXPLAIN THE VARIOUS ENTRIES IN THE DIARIES FOUND DU RING THE COURSE OF SEARCH BY GIVING DETAILS SUCH AS NAMES OF THE PERSONS TO WHOM IT PERTAINS, THE DATE OF TRANSACTION, AMOUN T OF TRANSACTION, ETC. HE ALSO ASKED THE ASSESSEE TO EX PLAIN THE VARIOUS TRANSACTION AND THE DETAILS OF LOANS AND GI FTS TAKEN BY 3 ITA NOS.1789 TO 1795/DEL/2017 THE ASSESSEE. SINCE, THERE WAS NO COMPLIANCE, A SU MMON U/S 131 OF THE ACT WAS ISSUED TO THE ASSESSEE ON 30.01. 2014 FOR PERSONAL ATTENDANCE ON 03.02.2014. 3. HOWEVER, THERE WAS NO PROPER COMPLIANCE TO THE VARIOUS QUESTIONS RAISED BY THE AO. THE AO, THEREFO RE MADE ADDITION OF RS.1,68,42,943/- U/S 68 OF THE ACT BY O BSERVING AS UNDER:- THE ASSESSEE DID NOT PRODUCE BOOKS OF ACCOUNT DESP ITE SPECIFIC REQUIREMENT IN THIS REGARD WHICH SUGGESTS THAT NO B OOKS OF ACCOUNT IS MAINTAINED BY THE ASSESSEE. ALSO NO STAT EMENT OF AFFAIRS WAS FURNISHED. IN SPITE OF SUFFICIENT OPPO RTUNITY GRANTED TO ASSESSEE THE REQUIRED DETAILS & PARTICULARS WERE NOT FURNISHED. IN THESE CIRCUMSTANCES IT CAN REASONABL Y BE DEDUCED THAT THE ASSESSEE UTILIZED THESE ACCOUNT AS SHELL A CCOUNTS. THE ASSESSEE HAS FAILED TO DISCHARGE THE ONUS CAST UPON IT UNDER THE PROVISIONS OF SECTION 68 OF THE INCOME TAX ACT. SI NCE, THERE ARE CREDITS APPEARING IN THE BANK ACCOUNTS OF THE ASSES SEE, WHICH THE ASSESSEE HAS FAILED TO EXPLAIN AND HAS ALSO FAI LED IN ESTABLISHING THE GENUINENESS OF THE SUM CREDITED, T HE CREDITS APPEARING IN THE ACCOUNTS OF THE ASSESSEE, DURING T HE FINANCIAL YEAR 2005-06 RELEVANT ASSESSMENT YEAR 2006-07, TO T HE TUNE OF RS.1,68,42,943/- IS TREATED AS INCOME OF THE ASSESS EE UNDER THE PROVISIONS OF SECTION 68 OF THE INCOME TAX ACT AS U NEXPLAINED CASH CREDITS AND ADDED ACCORDINGLY. 4. SIMILARLY, THE AO NOTED THAT THE ASSESSEE HAS R ECEIVED GIFT OF RS.24,000/- DURING THE YEAR IN CASH. HE, T HEREFORE, ASKED THE ASSESSEE TO SUBSTANTIATE THE SAME BY GIVING THE NAME OF THE DONOR, THE OCCASION WARRANTING FOR GIVING OF SUCH G IFT AND ALSO TO PRODUCE THE PERSON GIVING THE SO CALLED GIFT TO DIS CHARGE THE ONUS. SINCE, THE ASSESSEE FAILED TO PRODUCE THE PE RSON AND SUBSTANTIATE THE DETAILS AS ASKED BY HIM, THE AO AD DED THE 4 ITA NOS.1789 TO 1795/DEL/2017 AMOUNT OF RS.24,000/- TAKEN BY THE ASSESSEE AS GIFT DURING THE YEAR BY INVOKING THE PROVISIONS OF SECTION 68 OF TH E ACT. THUS, THE AO DETERMINED THE TOTAL INCOME OF THE ASSESSEE AT RS.1,70,08,873/- AS AGAINST THE RETURNED INCOME OF RS.1,47,930/-. 5. SIMILAR ADDITIONS HAVE BEEN MADE BY THE AO FOR THE FOLLOWING ASSESSMENT YEARS WHICH ARE AS UNDER:- SL. NO. ITA NOS. ASSESSMENT YEARS RETURNED INCOME ASSESSED INCOME 1 1790/DEL/2017 2007-08 1,64,893 2,54,39,689 2 1791/DEL/2017 2008-09 2,19,972 3,34,31,637 3 1792/DEL/2017 2009-10 3,47,823 3,03,89,704 4 1793/DEL/2017 2010-11 3,91,191 105,61,05,072 5 1794/DEL/2017 2011-12 6,03,819 83,35,88,812 6 1795/DEL/2017 2012-13 5,46,480 49,77,40,380 6. IN APPEAL, THE LEARNED CIT(A) IN THE EX-PARTE O RDER PASSED BY HIM SUSTAINED BOTH THE ADDITIONS MADE BY THE AO. 7. SO FAR AS THE ADDITION OF RS.1,68,42,930/- IS CONCERNED, THE LEARNED CIT(A) SUSTAINED THE ADDITIO N MADE BY THE AO BY OBSERVING AS UNDER:- FROM THE ABOVE, IT IS CLEAR THAT THE APPELLANT/AR FAILED TO SUBSTANTIATE THE OBJECTIONS RAISED THROUGH VARIOUS GROUNDS FILED IN THIS APPEAL, SINCE: 5 ITA NOS.1789 TO 1795/DEL/2017 IN CASE OF THE APPELLANT, IT IS CLEAR THAT AT THE T IME OF SEARCH, THE DOCUMENTS WERE FOUND, WHICH WERE SEIZED AND INVENTORISED AS ANNEXURE A-I TO A-II , WHICH CONTAIN THE INFORMATION RELATING TO DIFFERENT BANK ACCOUNTS OF DIFFERENT PERSONS, IN WHOSE CASE APPELLANT IS THE INTRODUCER. THESE BANK ACCOUNTS ARE OPERATED BY THE APPELLANT. ACCORD INGLY, IT IS CLEAR THAT THE ANNEXURE A-I TO A-II , ARE INCRIMINATING DOCUMENT, SINCE INCOME FROM THE ALLEGED TRANSACTION S IN THESE BANK ACCOUNTS, IS NOT TAKEN INTO ACCOUNT BY T HE APPELLANT. IT IS ALSO, ESTABLISHED BY THE A.O. IN THE ASSESSME NT PROCEEDINGS THAT THESE ALLEGED BANK ACCOUNTS, ARE B EING OPERATED AND USED BY THE APPELLANT, FOR PROVIDING ACCOMMODATION ENTRIES AND THEREFORE, IT IS CLEAR TH AT INCOME REFLECTED IN THESE ACCOUNTS, BELONG TO APPEL LANT ONLY. THE OBJECTION OF THE APPELLANT THAT ENQUIRIES INITI ATED THROUGH NOTICES U/S 131 / 133(6) OF THE ACT, ISSUED BY THE A.O. WERE NOT TAKEN TO THE LOGICAL CONCLUSION. THIS OBJECTION OF THE APPELLANT, IS NOT SUBSTANTIATED, S INCE SAME IS NOWHERE MENTIONED BY THE A.O. IN THE ASSESSMENT ORDER, EXCEPT THE SUMMONS ISSUED TO THE ASSESSEE ON 09.12. 2013 AND 13.12.2013 FOR FURNISHING BANK STATEMENTS. IN T HESE FACTS, OBJECTIONS OF THE APPELLANT ARE NOT CORRECT. THE OBJECTION OF THE APPELLANT THAT THE MATERIAL CO LLECTED AT THE BACK OF THE ASSESSEE, WAS NOT CONFRONTED, IS AL SO NOT SUBSTANTIATED, IN ABSENCE OF ANY EVIDENCE/ MATERIAL BOUGHT ON RECORD. ON PERUSAL OF THE ASSESSMENT RECO RD AND PROCEEDINGS REPRODUCED AT PAGE 6 OF THIS ORDER, IT IS CLEAR THAT SEVERAL OPOPPORTUNITIES WERE ALLOWED, IN RESPECT OF SEIZED MATERIAL AND FINAL SHOW CAUSE WAS ALSO GI VEN, IN THESE FACTS, THIS OBJECTION OF THE APPELLANT IS NOT CORRECT, THE OBJECTION OF THE APPELLANT THAT HE IS ENGAGED I N THE BUSINESS OF ACCOMMODATION ENTRIES AND THEREFORE, A. O. SHOULD HAVE CONSIDERED ONLY SUCH INCOME ARISING FRO M ACCOMMODATION ENTRIES AND NOT THE ENTIRE AMOUNT OF ACCOMMODATION ENTRIES. THIS OBJECTION OF THE APPELL ANT IS NOT SUBSTANTIATED, SINCE APPELLANT FAILED TO EXPLAI N THE SOURCE OF DEPOSITS IN THE ALLEGED BANK ACCOUNTS, IN SPITE OF REPEATED OPPORTUNITIES. FURTHER, IT IS ALSO CLEAR T HAT APPELLANT FAILED TO DISCLOSE ANY SUCH INCOME IN THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE U/S 153 A OF THE ACT. THE ALTERNATE OBJECTION TAKEN BY THE APPELLANT WITH OUT PREJUDICE TO THE ABOVE, THAT ONCE A.O. HAS CONSIDER ED THESE ACCOUNTS AS BENAMI, THEREFORE, PEAK OF THESE TRANSA CTIONS REFLECTED IN THE BANK ACCOUNTS, SHOULD HAVE BEEN 6 ITA NOS.1789 TO 1795/DEL/2017 CONSIDERED BY THE A.O. WHILE MAKING ADDITION U/S 68 OF THE ACT. THIS OBJECTION OF THE APPELLANT IS NOT SUBSTAN TIATED, SINCE NO SUCH CLAIM WAS MADE IN THE ASSESSMENT PROCEEDINGS AND ALSO FOR CONSIDERING THE PEAK OF TH E TRANSACTIONS, THE APPELLANT HAS TO DEMONSTRATE BEYO ND DOUBT THAT SAME MONEY HAS BEEN ROUTED FROM ONE ACCO UNT TO ANOTHER ACCOUNT, WHICH WAS NOT DONE. IN THESE FA CTS, THIS OBJECTION OF THE APPELLANT IS NOT CORRECT. FROM THE DISCUSSION OF THE A.O. IN THE ASSESSMENT O RDER, IN RESPECT OF SEIZED MATERIAL, STATEMENT OF THE ASSESS EE RECORDED U/S 132(4) OF THE ACT, IT IS CLEAR THAT THE APPELLA NT FAILED TO DISCHARGE THE ONUS U/S 68 OF THE ACT, FOR THE UNEXP LAINED CASH DEPOSITS IN THESE ALLEGED BANK ACCOUNTS, OPERATED A ND USED BY THE APPELLANT, IN THE ASSESSMENT PROCEEDINGS AS WEL L AS IN THE APPELLATE PROCEEDINGS, INSPITE OF SEVERAL OPPORTUNI TIES ALLOWED BY THE A.O., AS WELL AS IN THE APPELLATE PROCEEDING S. ACCORDINGLY, IT IS CLEAR THAT THE APPELLANT FAILED TO SUBSTANTIATE THE OBJECTIONS RAISED THROUGH VARIOUS GROUNDS OF AP PEAL. IN VIEW OF THE ABOVE, I AM OF THE CONSIDERED OPINIO N THAT THE APPELLANT FAILED TO DISCHARGE THE ONUS CAST UPON U/ S 68 OF THE ACT, NOT ONLY IN THE ASSESSMENT PROCEEDINGS, BUT AL SO IN THE APPELLATE PROCEEDINGS. IN THESE FACTS AND CIRCUMSTA NCES, I DO NOT FIND ANY INFIRMITY IN THE FINDINGS OF THE A.O. AND THEREFORE, ADDITION U/S 68 OF THE ACT, OF RS. 1,68,42,943/-, I S CONFIRMED. 8. SO FAR AS THE ADDITION OF RS.24,000/- ON ACCOUN T OF GIFT RECEIVED IS CONCERNED, THE LEARNED CIT(A) SUST AINED THE ADDITION BY OBSERVING AS UNDER:- 9.3 I HAVE CAREFULLY CONSIDERED ASSESSMENT ORDER, GROUNDS OF APPEAL AND ASSESSMENT RECORD. THE OBJECTIONS RA ISED BY THE APPELLANT THROUGH GROUNDS OF APPEAL ARE DISCUSS ED AS UNDER:- (I) IN THE ASSESSMENT PROCEEDINGS, IT HAS BEEN STA TED BY THE A.O. THAT THE ASSESSEE HAS RECEIVED GIFTS FR OM VARIOUS PERSONS, AMOUNTING TO RS. 24,000/-, DURING THE F.Y. 2005- 06, RELATING TO A.Y. 2006-07. IN THE ASSESSMENT PRO CEEDINGS, THE ASSESSEE HAS MERELY FILED SOME PAPERS FOR JUSTI FYING THE CREDITWORTHINESS AND GENUINENESS OF ALLEGED GIFTS. IN THE ASSESSMENT PROCEEDINGS, THE A.O. REQUIRED THE ASSES SEE VIDE OFFICE LETTER DATED 24.02.2014, TO PRODUCE THE DONO RS ON 28.02.2014 AND 03.3.2014, IN ORDER TO PROVE IDENTIT Y, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION . IN THE 7 ITA NOS.1789 TO 1795/DEL/2017 ASSESSMENT ORDER THE CONTENT OF THE ABOVE LETTER DA TED 24.02.2014, HAS ALSO BEEN REPRODUCED. (II) IN THE ASSESSMENT PROCEEDINGS, IT HAS BEEN ST ATED BY THE A.O. THAT THE ASSESSEE WAS SPECIFICALLY ASKE D TO PRODUCE THESE ALLEGED DONORS, ON SPECIFIC DATE AND TIME. HOWEVER, ASSESSEE FAILED TO PRODUCE ANY OF THE DONO RS AT THE GIVEN DATES. IN VIEW OF THE ABOVE, THE A.O. WAS OF THE VIEW THAT ASSESSEE HAS GROSSLY FAILED TO DISCHARGE THE BURDEN OF PROOF CAST UPON HIM AND THEREFORE, THE GENUINENESS OF THE ALLEGED GIFT, REMAINED UNEXPLAINED. IN THESE FACTS, THE A.O . MADE THE ADDITION U/S 68 OF THE ACT OF RS. 24,000/-, AS UNEX PLAINED CASH CREDITS RECEIVED IN CASH, AS ON 31.3.2006. (III) IN THE APPELLATE PROCEEDINGS, THE APPELLANT WAS GIVEN ADEQUATE OPPORTUNITIES TO REPRESENT THE CASE, AFTER FILING OF APPEAL ON 30,4.2014. THE SAME HAS BEEN GI VEN AT PAGE 4 AND 5 OF THIS ORDER. FROM THE ABOVE, IT IS CLEAR THAT THE APPELLANT/AR F AILED TO SUBSTANTIATE THE OBJECTIONS RAISED THROUGH THIS GROUND, FILED IN THIS APPEAL. FROM THE DISCUSSION OF THE A. O. IN THE ASSESSMENT ORDER, IT IS CLEAR THAT THE APPELLANT FA ILED TO DISCHARGE THE ONUS U/S 68 OF THE ACT, FOR THE UNEXP LAINED CASH CREDITS, IN RESPECT OF ALLEGED GIFT RECEIVED, IN THE ASSESSMENT PROCEEDINGS, AS WELL AS IN THE APPELLATE PROCEEDINGS, INSPITE OF SEVERAL OPPORTUNITIES ALLOW ED BY THE A.O., AS WELL AS IN THE APPELLATE PROCEEDINGS. ACCO RDINGLY, IT IS CLEAR THAT THE APPELLANT FAILED TO SUBSTANTIATE THE OBJECTION RAISED THROUGH THIS GROUND OF APPEAL. IN VIEW OF THE ABOVE, I AM OF THE CONSIDERED OPINIO N THAT THE APPELLANT FAILED TO DISCHARGE THE ONUS CAST UPO N U/S 68 OF THE ACT, NOT ONLY IN THE ASSESSMENT PROCEEDINGS, BUT ALSO IN THE APPELLATE PROCEEDINGS. IN THESE FACTS AND CIRCUMSTANCES, 1 DO NOT FIND ANY INFIRMITY IN THE F INDINGS OF THE A.O. AND THEREFORE, ADDITION U/S 68 OF THE ACT, OF RS. 24,000/-, ON ACCOUNT OF ALLEGED GIFTS, IS CONFIRMED . 9. AGGRIEVED WITH SUCH ORDER OF THE LEARNED CIT(A) , THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISIN G THE FOLLOWING GROUNDS:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORD ER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) [CIT(A)J IS BAD BOTH IN THE EYE OF LAW AND ON FACTS. 8 ITA NOS.1789 TO 1795/DEL/2017 ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LEARNE D CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN PASSING THE O RDER WITHOUT GIVING ASSESSEE A PROPER AND ADEQUATE OPPOR TUNITY OF BEING HEARD IN CLEAR VIOLATION OF PRINCIPLE OF NATU RAL JUSTICE. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LE ARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN REJECTING THE CONTENTION OF THE ASSESSEE THAT THE PROCEEDINGS INITIATED UNDE R SECTION 153A AND ORDER PASSED BY THE LEARNED ASSESSING OFFI CER (AO) UNDER SECTION 153A/143(3) IS WITHOUT JURISDICTION. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LE ARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN REJECTING THE CONTENTION OF THE ASSESSEE THAT THE ORDER PASSED BY THE LEARNE D AO UNDER SECTION 153A IS BAD AND LIABLE TO BE QUASHED AS THE SAME HAS BEEN FRAMED CONSEQUENT TO A SEARCH WHICH ITSELF WAS UNLAWFUL AND INVALID IN THE EYE OF LAW. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LE ARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN REJECTING THE CONTENTION OF THE ASSESSEE THAT THE ADDITIONS MADE UNDER SECTI ON 153A ARE BAD IN LAW IN THE ABSENCE OF ANY INCRIMINATING MATERIAL BELONGING TO THE ASSESSEE BEING FOUND DURING THE CO URSE OF THE SEARCH. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LEARNE D CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING TH E ADDITION OF RS.1,68,42,943/- MADE BY THE AO ON ACCOUNT OF DE POSITS IN VARIOUS BANK ACCOUNTS. (I) THAT THE LEARNED CIT(A) HAS ERRED IN CONFIRMIN G THE FINDING OF THE AO THAT THE BANK ACCOUNTS OF VARIOUS PERSONS STATED IN THE ASSESSMENT ORDER BELONG TO THE ASSESSEE. THAT THE LEARNED CIT(A) HAS ERRED IN IGNORING THE F ACT THAT THE TRANSACTIONS RECORDED IN SUCH BANK ACCOUNTS CLE ARLY DEMONSTRATE THAT THE AMOUNT PERTAINS TO THE PERSONS IN WHOSE NAMES THE ACCOUNTS STAND. THAT THE LEARNED CIT(A) HAS ERRED IN IGNORING THE PROVISIONS OF SECTION 68 OF THE ACT WHEREBY AN UNEXPLAINED CRE DIT IS TO BE ADDED AS INCOME OF THE PERSON IN WHOSE ACCOUNT THE AMOUNT IS FOUND TO BE CREDITED. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LEARNE D CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN REJECTING THE CONTENTION OF THE ASSESSEE THAT THE AO HAS ERRED IN MAKING THE ADDITION WITHOUT TAKING THE ENQUIRY INITIATED BY HIM BY ISSU E OF NOTICES TO A LOGICAL END. 9 ITA NOS.1789 TO 1795/DEL/2017 ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LEARNE D CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING TH E ADDITION WHICH WAS MADE USING THE MATERIAL / STATEMENT COLLE CTED /' RECORDED AT THE BACK OF THE ASSESSEE WITHOUT GIVING HIM AN OPPORTUNITY TO REBUT/ CROSS EXAMINE THE SAME. WITHOUT PREJUDICE TO THE ABOVE AND IN THE ALTERNAT IVE, THE LEARNED CIT(A) HAS ERRED IN REJECTING THE CONTENTIO N OF THE ASSESSEE THAT THE ASSESSEE BEING ENGAGED IN THE BUS INESS OF ACCOMMODATION ENTRY PROVIDER, AS SUCH THE INCOME AR ISING ONLY FROM SUCH ACCOMMODATION ENTRY CAN BE CONSIDERED TO BE THE INCOME OF THE ASSESSEE. (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LE ARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING AD DITION OF RS.24,000/- MADE BY THE AO ON ACCOUNT OF GIFTS RECE IVED BY THE ASSESSEE. (II) THAT THE ADDITION HAS BEEN CONFIRMED DESPITE T HE ASSESSEE BRINGING EXPLANATION AND EVIDENCES ON RECORD TO PRO VE THE IDENTITY AND CREDITWORTHINESS OF THE DONOR AS WELL AS GENUINENESS OF THE GIFT RECEIVED. 10. THE LEARNED COUNSEL FOR THE ASSESSEE STRONGLY CHALLENGED THE EX-PARTE ORDER OF THE LEARNED CIT(A) IN CONFIRMING THE VARIOUS ADDITIONS MADE BY THE AO. HE SUBMITTED THAT IN ALL THESE ASSESSMENT YEARS, THE AO MADE HIGH PITCH ASSE SSMENT BY MAKING HUGE ADDITIONS ON ACCOUNT OF CLERICAL ERROR. REFERRING TO VARIOUS PAGES OF THE PAPER BOOK, HE SUBMITTED THAT THE CREDITS IN THE BANK ACCOUNTS OF THE CLIENTS OF THE ASSESSEE HA VE BEEN ADDED TO THE INCOME OF THE ASSESSEE DESPITE NO INCRIMINAT ING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH. REFERRING T O VARIOUS BANK ACCOUNTS, HE SUBMITTED THAT THERE IS DOUBLE AD DITION OF THE BANK DEPOSITS I.E. IN THE HANDS OF THE ASSESSEE AS WELL AS IN THE HANDS OF TWO COMPANIES I.E. BANSAL INFINLEASE (P) L TD. AND 10 ITA NOS.1789 TO 1795/DEL/2017 BANSAL INHOLD LTD. RELYING ON VARIOUS DECISIONS, H E SUBMITTED THAT THE AO HAS INCORRECTLY INVOKED THE PROVISIONS OF SECTION 68 OF THE ACT AND MADE ADDITION DESPITE THE FACT THAT NO CREDIT APPEARS IN THE BOOKS OF THE ASSESSEE BUT IN THE BOO KS OF DIFFERENT OTHER PERSONS. FURTHER, THE CREDITS WERE ADDED TO THE TOTAL INCOME OF THE ASSESSEE IN SPITE OF COMMISSION EARNE D BY THE ASSESSEE, HE BEING A MODERATOR OR FACILITATOR OF AC COMMODATION ENTRIES. REFERRING TO THE STATEMENT OF THE ASSESSEE RECORDED DURING THE COURSE OF SEARCH U/S 132(4) OF THE I.T. ACT, 1961, HE SUBMITTED THAT THE ASSESSEE HAS CATEGORICALLY STATE D IN HIS STATEMENT THAT HE IS MODERATOR AND FACILITATOR OF A CCOMMODATION ENTRIES. THE LEARNED COUNSEL FOR THE ASSESSEE RELI ED ON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CAS E OF CIT VS KABUL CHAWLA, REPORTED IN 380 ITR 573 (DEL.) AND SU BMITTED THAT IN CASE OF SEARCH ASSESSMENTS, ADDITION HAS TO BE C ONFINED TO SEIZE MATERIAL FOUND DURING THE COURSE OF SEARCH. H E SUBMITTED THAT IN THE INSTANT CASE, THE ADDITIONS MADE BY THE AO ARE NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING TH E COURSE OF SEARCH AND, THEREFORE, SUCH ADDITION MADE BY THE AO AND UPHELD BY THE LEARNED CIT(A) IS NOT IN ACCORDANCE WITH LAW . HE SUBMITTED THAT ALTHOUGH THE ASSESSEE COULD NOT APPE AR BEFORE THE LEARNED CIT(A) FOR WHICH THE EX-PARTE ORDER HAS BEEN PASSED, 11 ITA NOS.1789 TO 1795/DEL/2017 HOWEVER, IT IS NOT A CASE OF NON-COMPLIANCE BUT THE ASSESSEE WAS SEEKING ADJOURNMENT FROM TIME TO TIME. HE SUBMITTE D THAT IN THE INTEREST OF JUSTICE, THE ASSESSEE SHOULD BE GIV EN ONE MORE OPPORTUNITY TO SUBSTANTIATE HIS CASE AS THE EARLIER COUNSEL WAS MISLEADING THE ASSESSEE AND WAS UNABLE TO REPRESENT THE CASE PROPERLY BEFORE THE LOWER AUTHORITIES. HE ACCORDING LY SUBMITTED THAT THE MATER SHOULD BE RESTORED BACK TO THE FILE OF THE AO FOR DENOVO ASSESSMENT. 11. THE LEARNED DR ON THE OTHER HAND, STRONGLY OBJ ECTED TO THE ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FO R THE ASSESSEE. SHE SUBMITTED THAT THE ASSESSEE WAS NON-C OOPERATIVE DURING THE COURSE OF ASSESSMENT PROCEEDINGS AS WELL AS APPELLATE PROCEEDINGS. THEREFORE, THE MATTER SHOULD NOT BE R EMANDED BACK TO THE FILE OF THE AO BUT MAY BE REMANDED BACK TO THE FILE OF LEARNED CIT(A). RELYING ON VARIOUS DECISIONS, S HE SUBMITTED THAT THE ASSESSEE COULD NOT DISCHARGE THE ONUS CAST ON HIM BY PROVING THE IDENTITY AND CREDITWORTHINESS OF THE LO AN CREDITORS/DONORS AND GENUINENESS OF THE TRANSACTION S INCLUDING THE GIFT TRANSACTION. THEREFORE, THE ADDITION MADE BY THE AO AND SUSTAINED BY THE LEARNED CIT(A) SHOULD BE UPHELD. I N HER 12 ITA NOS.1789 TO 1795/DEL/2017 ALTERNATE CONTENTION, SHE SUBMITTED THAT THE MATTER MAY BE REMANDED TO THE FILE OF THE AO. 12. THE LEARNED COUNSEL FOR THE ASSESSEE IN HIS RE JOINDER SUBMITTED THAT SINCE THE CREDITS IN THE BANK ACCOUN T OF THE CLIENTS OF THE ASSESSEE ARE ADDED AND CERTAIN ADDIT IONS HAVE BEEN MADE TWICE IN THE HANDS OF THE ASSESSEE AS WEL L AS IN THE HANDS OF VARIOUS COMPANIES AND OTHER PERSONS, THERE FORE, EVEN IF THE MATTER IS RESTORED TO THE FILE OF THE LEARNED C IT(A), HE HAS TO CALL FOR A REMAND REPORT FROM THE ASSESSING OFFICER . HE SUBMITTED THAT IN THE INTEREST OF JUSTICE AND TO SA VE TIME, THE MATTER SHOULD BE RESTORED TO THE FILE OF THE ASSESS ING OFFICER SO THAT PROPER VERIFICATION CAN BE MADE BY HIM OF THE SEIZED DOCUMENTS. 13. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFI CER AND THE LEARNED CIT(A) AND THE PAPER BOOK FILED ON BEHALF O F THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECI SIONS CITED BEFORE US. WE FIND THE AO IN THE INSTANT CASE MAD E ADDITION OF RS.1,68,42,943/- U/S 68 OF THE ACT, SINCE, THE ASSE SSEE COULD NOT EXPLAIN THE VARIOUS CREDITS APPEARING IN THE BA NK ACCOUNTS OF THE ASSESSEE AND COULD NOT ESTABLISH THE GENUINE NESS OF THE 13 ITA NOS.1789 TO 1795/DEL/2017 SAID TRANSACTIONS. SIMILARLY, HE ALSO MADE ADDITIO N OF RS.24,000/- BEING GIFT RECEIVED BY THE ASSESSEE IN CASH, SINCE THE ASSESSEE COULD NOT PRODUCE THE DONOR NOR JUSTIF Y THE OCCASION AND THE GENUINENESS OF SUCH GIFT. WE FIND THE LEARNED CIT(A) IN THE EX-PARTE ORDER PASSED BY HIM HAS SUST AINED BOTH THE ADDITION, THE REASONS OF WHICH HAVE ALREADY BEE N REPRODUCED IN THE PRECEDING PARAGRAPHS. IT IS THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT SINCE THE LEARNED CIT (A) HAS PASSED THE EX-PARTE ORDER AND SINCE THE CREDITS IN THE BANK ACCOUNTS OF THE CLIENTS OF THE ASSESSEE HAVE BEEN A DDED TO THE TOTAL INCOME OF THE ASSESSEE DESPITE NO INCRIMINATI NG MATERIAL WAS FOUND DURING THE COURSE OF SEARCH AND SINCE THE RE IS DOUBLE ADDITION OF THE SAME CREDITS IN THE HANDS OF THE AS SESSEE AS WELL AS IN THE HANDS OF TWO OTHER COMPANIES IN SPITE OF THE ASSESSEE BEING A MODERATOR/FACILITATOR OF ACCOMMODATION ENTR IES, THEREFORE, IN THE INTEREST OF JUSTICE, THE MATTER S HALL BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR DENOVO ASS ESSMENT. 14. WE FIND SOME FORCE IN THE ABOVE ARGUMENTS OF T HE LEARNED COUNSEL FOR THE ASSESSEE. ADMITTEDLY, THE L EARNED CIT(A) HAS PASSED THE EX-PARTE ORDER DUE TO NON-APPEARANCE OF THE ASSESSEE DESPITE NUMBER OF OPPORTUNITIES GRANTED BY HIM BUT 14 ITA NOS.1789 TO 1795/DEL/2017 THE ASSESSEE WAS SEEKING ADJOURNMENT FROM TIME TO T IME. IT IS TO BE NOTED THAT DURING THE COURSE OF ASSESSMENT PROCE EDINGS ALSO THE ASSESSEE HAD NOT FILED THE REQUISITE DETAILS TO THE SATISFACTION OF THE ASSESSING OFFICER FOR WHICH HUGE ADDITIONS H AVE BEEN MADE. HOWEVER, IT IS SEEN THAT VARIOUS ADDITIONS H AVE BEEN MADE BY THE ASSESSING OFFICER WHICH AMOUNTS TO DOUB LE ADDITION OF THE SAME AMOUNT I.E. IN THE HANDS OF THE ASSESSE E AS WELL AS IN THE HANDS OF TWO COMPANIES AND OTHER RELATIVES. THE SUBMISSION OF THE ASSESSEE DURING THE COURSE OF SEA RCH IN HIS STATEMENT RECORDED U/S 132(4) OF THE ACT THAT HE WA S A MODERATOR OR FACILITATOR OF ACCOMMODATION ENTRIES A ND THAT ONLY COMMISSION INCOME SHOULD BE CONSIDERED AS HIS INCOM E ALSO HAS NOT BEEN CONSIDERED BY THE LOWER AUTHORITIES. CONSI DERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE INTERE ST OF JUSTICE, WE DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO GRANT ONE MORE OPPORTUN ITY TO THE ASSESSEE TO SUBSTANTIATE HIS CASE AND DECIDE THE IS SUE AS PER FACTS AND LAW. THE AO WHILE DECIDING THE ISSUE SHA LL ALSO KEEP IN MIND THE DECISION OF THE HONBLE DELHI HIGH COUR T IN THE CASE OF CIT VS KABUL CHAWLA (SUPRA). THE ASSESSEE IS ALS O HEREBY DIRECTED TO APPEAR BEFORE THE ASSESSING OFFICER AND SUBSTANTIATE HIS CASE FAILING WHICH THE ASSESSING OFFICER IS AT LIBERTY TO PASS 15 ITA NOS.1789 TO 1795/DEL/2017 APPROPRIATE ORDER AS PER LAW. WE HOLD AND DIRECT AC CORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. ITA NOS. 1790 TO 1795/DEL/2017 15. IDENTICAL GROUNDS HAVE BEEN RAISED IN ALL THES E APPEALS. SINCE WE HAVE ALREADY RESTORED THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR AFRESH ADJUDICATION, THER EFORE, FOLLOWING SIMILAR REASONING, WE RESTORE THESE APPEALS ALSO TO THE FILE OF THE ASSESSING OFFICER FOR AFRESH ADJUDICATION IN THE LI GHT OF OUR ABOVE DIRECTION. 16. IN THE RESULT, ALL THE APPEALS FILED BY THE AS SESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 03/09/202 1. SD/- SD/- [SUCHITRA KAMBLE] [R.K.PA NDA] JUDICIAL MEMBER ACCOUNTANT MEMBER DELHI; DATED: 03/09/2021. F{X~{T? F{X~{T? F{X~{T? F{X~{T? FA FA FA FA P.S P.SP.S P.S COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI