Swarnasathi Advisory Services Pvt. Ltd., , Kolkata V. ITO, Ward - 9(4), Kolkata , Kolkata

ITA 1929/KOL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 8494 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 06-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BAIJAAAANATH SINGH
• Assessee Lawyers: M SATNALIWALA
• Keywords: Bogus purchase; Unexplained cash credit; Unexplained investment; Search and seizure; Opportunity of cross examination; Source of fund; Accommodation entries; Reassessment proceedings
• Section: 147; 68; 69; 148; 143(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC KOLKATA BEFORE SHRI S.S, GODARA, JUDICIAL MEMBER ITA NO.1929/KOL/2018 ASSESSMENT YEAR:2006-07 SWARNASATHI ADVISORY SERVICES PVT. LTD., BLOCK- C, FLAT NO.201, 2 ND FLOOR, 4, D.L. KHAN ROAD, KOLKATA-25 [ PAN NO.AAGCS 9358 A ] / V/S . INCOME TAX OFFICER, WARD-9(4), P-7, CHOWRINGHEE SQUARE, KOLKATA-69 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI M.SATNALIWALA, FCA /BY RESPONDENT SHRI BAIJAAAANATH SINGH, ADDL. CIT-DR /DATE OF HEARING 02-01-2019 /DATE OF PRONOUNCEMENT 04-01-2019 /O R D E R THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2006-07 , ARISES AGAINST THE COMMISSIONER OF INCOME-TAX (APPEALS)-3, KOLKATAS O RDER DATED 13.08.2018 PASSED IN CASE NO.1754/CIT(A)-3/C-10(2)/14-15/KOL: INVOLVING PROCEEDINGS U/S. 147 R.W.S. 143(3)/153B(1)(B) OF THE INCOME TAX ACT, 1961; IN S HORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE ASSESSEE APPEAR TO HAVE RAISED THREE SUBSTAN TIVE GROUNDS IN THE INSTANT APPEAL. ITS FIRST PLEA IS LEGAL IN NATURE CHALLENGI NG VALIDITY OF RE-OPENING IN QUESTION. IT THEN SEEKS TO DELETE SEC. 68 ADDITIONS OF UNEXPLAIN ED CASH CREDITS AMOUNTING TO 1.25 LAC AND 18 LAC REPRESENTING ENTRIES AND UNEXPLAINED SHARE M ONEY; RESPECTIVELY. THERE IS NO DISPUTE THAT ABOVE LATTER SUM REPRESENTS ENHA NCEMENT MADE IN THE COURSE OF LOWER APPELLATE PROCEEDINGS IN THE CIT(A)S ORDER. ITA NO.1929/KOL/2018 A.Y. 2006-07 SWARNASATHI ADVISORY SERVICES PVT. LTD. VS. I TO WD-9(4), KOL. PAGE 2 3. THIS ASSESSEE IS STATED TO BE A COMPANY GRANTING LOAN AN ADVANCES AS WELL AS COMMISSION AGENTS ETC. IT FILED ITS RETURN ON 331.0 3.2009 STATING TOTAL INCOME OF 4,528/-. THE ASSESSING OFFICER FRAMED REGULAR ASSES SMENT IN ITS CASE ON 31.12.2007 ASSESSING THE ABOVE STATED INCOME OF 48,234/-. HE THEREAFTER TERMED REASONS TO BELIEVE THAT THE ASSESSEES TAXABLE INCOME LIABLE T O BE ASSESSED HAD ESCAPED ASSESSMENT FOR THE SOLE REASON THAT THE DIT(INV)-11 DELHI LATTER DATED 15.03.2013 HAD INDICATED IT HAVING TAKEN ACCOMMODATION ENTRIES FRO M ONE SHRI SURENDRA KUMAR JAIN TO THE TUNE OF 1.25 LAC. THE SAME CULMINATED IN THE IMPUGNED RE-AS SESSMENT FRAMED ON 25.03.2014 LEADING TO SEC. 68 ADDITION OF UNEXPL AINED CASH CREDITS AMOUNTING TO 1.25 LAC. 4. THE ASSESSEE PREFERRED APPEAL. THE CIT(A) HAS EN HANCED THE ABOVE STATED INCOME TO THE TUNE OF 18 LAC AFTER ADDING SHARE APPLICATION MONEY TO BE LACKING GENUINENESS OF THE INVESTOR PARTIES. IT IS IN THIS BACKDROP OF FACTS THAT ASSESSEE HAS FILED THE INSTANT APPEAL. 5. I HAVE GIVEN MY THOUGHTFUL CONSIDERATION TO RIVA L CONTENTION. BOTH PARTIES REITERATE THEIR RESPECTIVE STANDS AGAINST AND IN SU PPORT OF THE LOWER AUTHORITIES ACTION TAKING RECOURSE TO SEC. 148 R.W.S. 147 PROCEEDINGS THEREBY MAKING THE TWO ADDITION(S). THERE IS HARDLY ANY DISPUTE ABOUT THE ASSESSING OFF ICER HAVING INVOKED THE SECTION OF RE-ASSESSMENT PROCEEDINGS ON ACCOUNT OF ALLEGED EN TRY AVAILED BY THE ASSESSEE FROM ONE SHRI SURENDRA KUMAR JAIN. THE TAXPAYERS CASE T HROUGHOUT IN THIS REGARD HAS BEEN THAT THERE ARE NO DETAILS OF THE SAID ENTRY. THE CI T(A) HAS CONFIRMED THE IMPUGNED ADDITION AS FOLLOWS:- VI. GROUND NO3: ADDITION OF R.1,25,000/- U/S. 68 O F THE ACT. SUBMISSIONS OF THE APPELLANT . THE ADDITION OF RS.1,25,000/- WAS MADE WITHOUT ANY BASIS. THE DATE OF TRANSACTIONS AND THE NAME OF THE LOAN CREDITOR WAS NOT GIVEN TO THE ASSESSEE, SO HOW IT CAN BE EXPLAINED. AS THERE WAS NO CASH CREDI T GIVEN TO THE ASSESSEE, SO HOW IT CAN BE EXPLAINED. AS THERE WAS NO CASH CREDI T IN THE BOOKS OF THE ASSESSEE, NO ADDITION U/S. 68 CAN BE MADE. MOREOVER ANY UNRECORDED/UNACCOUNTED TRANSACTIONS WERE ASSESSED I N THE HANDS OF SRI ANAND SHARMA, SO IF ANY ESCAPEMENT WAS MADE, THAT HAS TO BE ADDED IN THE HANDS OF SRI ANAND SHARMA. THE AO ON THIS ISSUE IN REMAND REPORT DATED 09.05.2 018 HAS OBSERVED AS FOLLOWS : ITA NO.1929/KOL/2018 A.Y. 2006-07 SWARNASATHI ADVISORY SERVICES PVT. LTD. VS. I TO WD-9(4), KOL. PAGE 3 DURING THE APPELLATE PROCEEDINGS, THE ASSESSEE HAS STATED BEFORE YOUR GOODSELF THAT THERE IS NO UNSECURED LOAN SHOWN IN THE BALANC E SHEET AS ON 31.03.2016 AND THE ADDITION HAS BEEN MADE WITHOUT SPECIFYING T HE NATURE OF THE TRANSACTIONS WHICH HAS BEEN TREATED AS ACCOMMODATIO N ENTRY. HOWEVER, THE DDIT(INV), NEW DELHI HAS CATEGORICALLY PINPOINTED T HAT ON A SEARCH IN THE CASE OF AN ENTRY OPERATOR, SHRI SURENDRA KUMAR JAIN GROUP OF CASES AND SUBSEQUENT FURTHER ENQUIRIES, IT WAS FOUND THAT THE ABOVE REFERRED ASSESSEE HAD OBTAINED A ACCOMMODATION ENTRY OF R.1,25,000/- FROM THE SAID ENTRY OPERATOR GROUP., THE ASSESSEE HAD ALSO FAILED TO SUBSTANTIAT E THAT IT HAD NOT TAKEN ANY ACCOMMODATION ENTRY FROM THE SAID GROUP BY PROVIDIN G ANY PROPER AND COGENT EVIDENCE/EXPLANATION REGARDING THE NATURE AND SOURC E OF THE SAID FU9ND.HOWEVER, IT IS CORRECT THAT THERE IS NO UNSEC URED LOAN AS ON 31.03.2016 IN THE BALANCE SHEET OF THE ASSESSEE COMPANY. BUT IT I S ALSO OBSERVED FROM THE AUDITED ACCOUNTS OF THE ASSESSEE THAT THE ASSESSEE HAD RECEIVED SHARE APPLICATION OF RS.18,00,000/- DURING THE FINANCIAL YEAR 2005-06 RELEVANT TO THE ASSESSMENT YEAR 2006-07. HOWEVER, THE ASSESSEE HAD NOT ALLOTTED ANY SHARE AGAINST THE SAID APPLICATION MONEY AND THE SAME HAV E BEEN SHOWN BY THE ASSESSEE IN SCHEDULE -7 OF ITS BALANCE SHEET UNDER CURRENT LIABILITY & PROVISIONS. IT IS ALSO EVIDENT FROM THE RECORDS THA T THE ASSESSEE HAD NEITHER PROVIDE ANY DETAILS OF THE SAID SHARE APPLICATION M ONEY NOR EXPLAINED THE SOURCE OF THE AID FUND. IN VIEW OF THE ABOVE N ABSE NCE OF PROPER EXPLANATION ON THE PART OF THE ASSESSEE, THERE WAS NO ALTERNATIVE FOR THE AO BUT TO ADD THE SAID AMOUNT OF RS.1,25,000/- UNDER THE PROVISION OF SECT ION 68 OF THE INCOME TAX ACT, WHICH WAS FOUND BY THE DIT(INV.), NEW DELHI AS AN ACCOMMODATION ENTRY OBTAINED BY THE ASSESSEE FROM THE ABOVE MENTIONED G ROUP ON ACCOUNT OF SEARCH CONDUCTED IN THE CASE OF SHRI SURENDRA KUMA R JAIN GROUP. THE A/R OF THE APPELLANT HAS MADE FOLLOWING REJOIND ER TO THE REMAND REPORT OF THE AO TO THIS ISSUE. MOREOVER, IN THE ORIGINAL ASSESSMENT U/S. 143(3)/15 3(B)(I)(B) FOR THE ABOVE ASSESSMENT YEAR, IT HAS BEEN CATEGORICALLY MENTIONE D THAT ALL THE TRANSACTIONS WERE EXPLAINED AND ANY UNRECORDED/UNACCOUNTED TRANS ACTIONS IF ANY, WERE ASSESSED IN THE HANDS OF SRI ANAND SHARMA. DECISION : THE ISSUE RAISED IN THIS GROUND IS REGARDING THE AD DITION MADE BY THE AO ON ACCOUNT OF UNEXPLAINED CREDIT OF RS.1,25,000/- U/S 68 OF THE ACT. IT IS OBSERVED FROM THE ASSESSMENT ORDER OF THE AO THAT AN INFORMA TION WAS RECEIVED FROM THE OFFICE OF THE DITX(INV)-II, NEW DELHI VIDE HIS LETE R NO. DIT(INV)-II/U/S 148/2012-13/266, DTD. 15.03.2013, WHEREIN IT WAS ME NTIONED THAT THE APPELLANT COMPANY HAD TAKEN ACCOMMODATION ENTRIES FROM SUREND RA KUMAR JAIN GROUP COMPANIES. THE AO AFTER TAKING NECESSARY APPROVAL I SSUED NOTICE U/S. 148 AND SERVED ON THE APPELLANT ON 30.03.2013. REASONS FOR REOPENING WAS SERVED ON THE APPELLANT ON 16.08.2013. OBJECTION RAISED BY TH E APPELLANT AGAINST INITIATION OF REOPENING PROCEEDINGS WAS DISPOSED OF F BY THE AO ON 11.02.2013. FURTHER NOTICES U/S. 143(2) AND U/S.142(1) WERE ISS UED AND SERVED ON THE APPELLANT. AS THE APPELLANT FAILED TO SUBSTANTIATE THE SOURCE OF FUND OF ITA NO.1929/KOL/2018 A.Y. 2006-07 SWARNASATHI ADVISORY SERVICES PVT. LTD. VS. I TO WD-9(4), KOL. PAGE 4 RS.1,25,000/- THE AO THEREFORE ADDED THE SUM OF RS. 1,25,000/- TREATING IT UNEXPLAINED AND ADDED TO THE TOTAL INCOME OF THE AP PELLANT U/S.68 OF THE ACT. 6. IT IS THEREFORE CLEAR FROM THE ABOVE EXTRACTED C IT(A)S DETAILED DISCUSSION THAT THE ASSESSING OFFICERS REMAND REPORT HAS NOWHERE B EEN ABLE TO PROVE THE RELEVANT ENTRY OF 1.25 LAC ALLEGED TO HAVE BEEN AVAILED FROM SHRI SU RENDRA KUMAR JAIN. THE ASSESSING OFFICER HAS RATHER SHIFTED NEGATIVE BURDE N ON THE ASSESSEE THAT IT COULD NOT BE PROVED THAT IT HAD NOT TAKEN ANY ACCOMMODATION E NTRY IN THIS REGARD. I FIND THAT THE SAME SUFFICIENTLY TILTS THE CASE IN ASSESSEES FAVO UR AS THE ASSESSING OFFICERS RE- OPENING REASONS ITSELF DOES NOT SURVIVE IN THESE FA CTS AND CIRCUMSTANCES. I THEREFORE HOLD THAT THE ASSESSING OFFICER HAD NOT CORRECTLY A SSUMED THE RE-OPENING JURISDICTION IN ABSENCE OF ANY SUCH ENTRY BETWEEN ASSESSEE AND T HE SAID ENTRY OPERATOR. THE SOLE RE- OPENING REASON IS NOT SUSTAINABLE IN THE EYES OF LA W THEREFORE. 7. BOTH THE PARTIES THEREAFTER RAISED THEIR RESPECT IVE ARGUMENTS AS TO WHETHER THE LATTER ADDITION OF 18 LAC SHARE APPLICATION MONEY COULD BE UPHELD IN T HESE CIRCUMSTANCES OR NOT. I FIND THAT THE CO-ORDINATE B ENCHS ORDER IN SANJU K JALAN VS. ITO ITA NO.634/KOL/2017 DECIDED ON 10.01.2018 HAS QUASHED VALIDITY OF RE-O PENING IN CASE THE ABOVE BASED ON SOLE REASON WHEREIN STAN D DELETED IN APPEAL PROCEEDINGS AS FOLLOWS:- 2. THE ASSESSEE IS AN INDIVIDUAL. HIS SOURCE OF IN COME IS INCOME UNDER THE HEAD SALARIES, OTHER SOURCES AND CAPITAL GAINS. FOR A.Y.2012-13 TH E ASSESSEE FILED RETURN OF INCOME ON 17.02.2013 SHOWING A TOTAL INCOME OF RS.3,55,512/-. THE SAID RETURN WAS ACCEPTED AND AN INTIMATION U/S 143(1) OF THE INCOME TAX AC6T, 1961 (ACT) WAS ISSUED. SUBSEQUENTLY THE ASSESSMENT WAS REOPENED BY A NOTICE ISSUED U/S 148 OF THE ACT DATED 27.03.2015 FOR MAKING A RE-ASSESSMENT U/S 147 OF THE ACT. THE REASONS RECOR DED BY THE AO BEFORE ISSUING A NOTICE U/S 148 OF THE ACT READS AS FOLLOWS :- 23/03/2015 IT APPEARS FROM THE RECORD THAT THE ASS ESSEE FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2012-13 ON 17/02/2013 DECLARING TOTAL INCOME AT RS.3,55,512/. THE RETURN OF THE ASSESSEE WAS PROCESSED ON 21/03/2 013. ITA NO.634/KOL/2017 SANJU JALAN A.YR.2012-13 INFORM ATION HAS BEEN RECEIVED FROM DIT (INV.)-II, MUMBAI THAT THE ASSESSEE DURING THE FINANCIAL YEAR 2011-12 HAD AVAILED OF ENTRIES OF BOGUS PURCHASES AMOUNTING TO RS. 14,5 5,472/-FROM A CONCERN M/S. NICE DIAMONDS OF MUMBAI. THE ABOVE INFORMATION HAS BEEN RECEIVED CONSEQUENT TO THE SEARCH & SEIZURE OPERATION CONDUCTED IN THE CASE OF BHANWARLAL JAIN GROUP OF C ASES. A SEARCH & SEIZURE OPERATION ON THE ABOVE MENTIONED GROUP WAS CONDUCTED ON 03.10.2013. AS A RESULT OF THE SAID SEARCH AND FOLLOW - UP INVESTIGATION, IT CAME TO THE LIGHT THA T BHAWARLAL JAIN GROUP IS A LEADING ENTRY PROVIDER OF MUMBAI. THE GROUP PROVIDES ACCOMMODATIO N ENTRIES OF BOGUS PURCHASES THROUGH VARIOUS BENAMI CONCERN OPERATED AND MANAGED BY BHAN WARLAL JAIN AND HIS SON. THE SEARCH REVEALED VARIOUS INCRIMINATING DOCUMENTARY EVIDENCE S INDICATING THE SAME. STATEMENTS OF ITA NO.1929/KOL/2018 A.Y. 2006-07 SWARNASATHI ADVISORY SERVICES PVT. LTD. VS. I TO WD-9(4), KOL. PAGE 5 VARIOUS PERSONS (WHO ASSISTS BHANWARLAL JAIN IN PRO VIDING BOGUS PURCHASES THROUGH BENAMI CONCERN TO THE BENEFICIARIES) WERE RECORDED. IT IS FURTHER MENTIONED IN THE SAID REPORT THAT THE ENTIRE BOGUS NATURE OF THE TRANSACTIONS HAS ALSO BE EN ADMITTED BY BHAWARLAL JAIN IN HIS STATEMENT RECORDED U/S. 132(4) OF THE I.T.ACT,1961. ON THE BASIS OF DETAILED REPORT, IT IS SUMMARIZED THAT THE GROUP INDULGED IN PROVIDING BOG US PURCHASE BILLS AND RETURNING THE AMOUNT IN CASH AFTER DEDUCTING COMMISSION AND THIS MODUS OPERANDI WAS ALSO FOLLOWED IN THE ASSESSEE'S CASE. BASED ON THE ABOVE INFORMATION, I HAVE THE REASON T O BELIEVE THAT THE ASSESSEE ENTERED INTO BOGUS PURCHASES THROUGH ACCOMMODATION ENTRIES WITHO UT ACTUAL DELIVERY OF GOODS AND PAYMENTS AS DETAILED ABOVE BEING THE MODUS OPERANDI OF SELLER GROUP AND SO TAXABLE INCOME TO THE EXTENT OF RS. 14,55,472/- HAS ESCAPED ASSESS MENT WITHIN THE MEANING OF SECTION 147 OF THE I.T.ACT,1961. 3. THE ASSESSEE OBJECTED TO THE VALIDITY OF INITIAT ION OF RE-ASSESSMENT PROCEEDINGS BUT THE SAME WAS REJECTED BY THE REVENUE AUTHORITIES. 4. IT CAN BE SEEN FROM THE REASONS RECORDED BY THE AO FOR INITIATING PROCEEDINGS FOR REASSESSMENT THAT THE AO WANTED TO EXAMINE THE GENU INENESS OF PURCHASE OF DIAMONDS BY THE ASSESSEE DURING THE PREVIOUS YEAR OF THE VALUE OF R S.4,55,472/- FROM M/S. NICE DIAMONDS, MUMBAI. AS FAR AS THE QUESTION WHETHER PURCHASE OF DIAMOND WAS BOGUS THE ASSESSEE HAD SUBMITTED BEFORE THE AO THAT THE PURCHASES WERE GEN UINE AND FURNISHED DOCUMENTARY EVIDENCE LIKE INVOICE DATED 17.03.2012 ISSUED BY NI CE DIAMONDS, BANK STATEMENT MAINTAINED WITH UNION BANK OF INDIA EVIDENCING PAYMENT TO NICE DIAMONDS THROUGH CHEQUES DATED 27.03.2012 FOR RS.10,02,472/- AND CHEQUE DATED 3 IT A NO.634/KOL/2017 SANJU JALAN A.YR.2012-13 3 28.03.2012 FOR RS.4,53,000/-. AS PER THE INVOICE DIAMONDS WERE SOLD AT SURAT. THE AO INSISTED ON PROOF OF DELIVERY OF DIAM ONDS AT SURAT. THE ASSESSEE ALSO WANTED RIGHT OF CROSS EXAMINATION OF SHRI BHAWARLAL JAIN W HO THE REVENUE CLAIMS TO HAVE GIVEN A CONFESSION THAT THEY ARE ENGAGED IN PROVIDING BOGUS PURCHASES. SUCH OPPORTUNITY OF CROSS EXAMINATION WAS NOT PROVIDED AND THE AO PROCEEDED T O RELY ON THE STATEMENT RECORDED BY D.I.T. (INVESTIGATION),-II, MUMBAI. 5. IN THE COURSE OF SEARCH OF BHANWARLAL JAIN THE A O WAS OF THE VIEW THAT SINCE INVESTMENT IN DIAMONDS WAS SHOWN IN THE BALANCE SHEET AND THE SAM E MUST HAVE BEEN ACQUIRED FROM SOME OTHER PARTIES AND SINCE THE DETAILS OF SUCH PURCHAS ES WERE NOT FURNISHED THE INVESTMENT SHOULD BE TREATED AS UNEXPLAINED AND ADDED TO THE TOTAL IN COME OF THE ASSESSEE. THE AO ACCORDINGLY MADE ADDITION OF RS.14,55,472/- ON ACCOUNT OF UNEXP LAINED PURCHASE FROM NICE DIAMONDS. 6. APART FROM THE ABOVE THE AO ALSO TREATED THE LON G TERM CAPITAL GAIN WHICH WERE DECLARED BY THE ASSESSEE IN THE RETURN OF INCOME ON ACCOUNT OF SALE OF SHARES AS BOGUS AND ULTIMATELY DETERMINED THE TOTAL INCOME OF THE ASSESEE AS FOLLO WS :- RS. RS. RETURNED INCOME 3,55,512 ADD : PURCHASE FROM UNA CCOUNTED SOURCE [AS DISCUSSED] 14,55,472 ADD: UNEXPLAINED CASH CREDIT [AS DISCUSSED] 41,3 8,799 TOTAL INCOME 59,49,783 7. IT MAY BE SEEN FROM THE ABOVE ADDITIONS MADE BY THE AO THAT THE LONG TERM CAPITAL GAIN WHICH WAS TREATED AS BOGUS VIZ. RS.41,38,799/- WAS NOT THE REASON FOR WHICH THE ASSESSMENT PROCEEDINGS WERE INITIATED BY THE AO U/S 147 OF THE ACT AS RECORDED IN THE REASONS FOR INITIATING REASSESSMENT PROCEEDINGS WHICH WE HAVE E XTRACTED IN PARAGRAPH 2 OF THIS ORDER. 8. ON APPEAL BY THE ASSESSEE THE CIT(A) CONFIRMED T HE ORDER OF THE AO. THE CONCLUSION OF THE CIT(A) ON THE ISSUE OF BOGUS PURCHASE OF DIAMONDS W ERE AS FOLLOWS: ITA NO.1929/KOL/2018 A.Y. 2006-07 SWARNASATHI ADVISORY SERVICES PVT. LTD. VS. I TO WD-9(4), KOL. PAGE 6 A. THE ASSESSEE HAS BEEN UNABLE TO PROVE THE ACTUA L TRANSPORT AND RECEIPT OF THE DIAMOND IN HER HANDS, DESPITE BEING REPEATEDLY ASKED IN THE MA TTER BY THE LD. AO. B. THE TWO CHEQUES WERE PAID BY THE ASSESSEE AFTER A HIATUS OF 10 DAYS TO THE ALLEGED SUPPLIER, QUITE AN IMPOSSIBILITY IN THE JEWELLERY TRADE, MORE SO IN THE DIAMOND TRADE. C. IT IS QUITE IMPOSSIBLE FOR ANY JEWELLER NOT TO D EMAND AND ACCEPT MONEY ON HANDING OVER THE 'DIAMOND' TO THE BUYER, MORE SO AN UNKNOWN BUYE R WITH A SINGLE TRANSACTION. D. IN THE JEWELLERY BUSINESS PURCHASE AND PAYMENT A RE SIMULTANEOUS AND NOT SUCCESSIVE, ESPECIALLY FOR A NEW AND ONE-TIME BUYER. E. THE RECEIPT OF THE PURCHASE THEREFORE IS A DOUBT FUL DOCUMENT, WHEN VIEWED IN THE SURROUNDING CIRCUMSTANCES OF THE CASE. F. NO DIAMONDS WERE FOUND DURING THE SEARCH AND SEI ZURE OPERATIONS CARRIED OUT IN THE PREMISES OF THE BHANWARLAL JAIN GROUP, WHO WERE ALL EGED TO BE ACCOMMODATION ENTRY GIVERS. G. THERE IS NO MERIT IN THE CONTENTION OF THE ASSES SEE THAT SHE OUGHT TO BE PROVIDED AN OPPORTUNITY FOR CROSS-EXAMINATION, AS THE SELLER HA S ALREADY DENIED THE TRANSACTION. H. THEREFORE, ONCE THE INFORMATION HAD BEEN PROVIDE D BY THE LD AO TO THE ASSESSEE, THE ONUS WAS CAST ON THE ASSESSEE TO CONTROVERT THE INFORMAT ION, AND THIS HAS CLEARLY NOT BEEN DONE. 9. THE OTHER ADDITIONS OF BOGUS LONG TERM CAPITAL G AIN WAS ALSO CONFIRMED BY THE CIT(A). AGGRIEVED BY THE ORDER OF CIT(A), THE ASSESSEE HAS PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL RAISING THE FOLLOWING GROUNDS OF APPEAL : 1.FOR THAT THE ORDER 01 THE LD. CIT (A) IS ARBITRA RY, ILLEGAL AND BAD IN LAW. 2. FOR THAT THE LD. C.I.T (A) ERRED IN CONFIRMING T HE INITIATION OF PROCEEDINGS U/S. 147 BY THE AO WHO MERELY RELIED ON THE INFORMATION FROM DGIT(INV), MUMBAI WITHOUT APPLYING H 5 ITA NO.634/KOL/2017 SANJU JALAN A.YR.2 012-13 5 REASONABLE BELIEF THAT ANY INCOME HAS ESCAPED ASSESSMENT AND THE PROCEEDIN GS IS BAD IN LAW . 3. FOR THAT THE LD. CLT(A) ERRED IN CONFIRMING THE INITIATION OF PROCEEDINGS U/S. 147 WHEN THE AO DID NOT APPLY HIS OWN MIND AND EXAMINED THE RECORDS OF THE ASSESSEE SINCE THE ASSESSEE NEVER CLAIMED THE SUM OF RS.14,5 5,472/ - AS DEDUCTION IN ANY MANNER WHILE COMPUTING THE TOTAL INCOME AND AS SUCH THERE WAS NO ESCAPEMENT OF INCOME. 4. FOR THAT THE LD. CLT(A) ERRED IN CONFIRMING THE INITIATION OF PROCEEDINGS U/S.147 WHICH WERE BAD IN LAW SINCE IT WAS NOT THE CASE 01 THE AO THAT THE PURCHASE WAS NOT DISCLOSED IN THE BOOKS OR THAT THE PAYMENT MADE 10R SUCH PURCHASE WAS NOT EXPLAINED AND THUS THERE WAS NO QUESTION OF ANY INCOME OR ESC APEMENT OF INCOME. 5. FOR THAT THE LD. CI.T (A) ERRED IN CONFIRMING TH E ADDITION OF RS. 14,55,472/- AS PURCHASED FROM UNACCOUNTED SOURCES WHEN PAYMENT FOR SUCH PURCHASES WAS MADE BY ACCOUNT PAYEE CHEQUE FOR WHICH BANK STATEMENT WAS P RODUCED, THERE WAS NO EVIDENCE OF ANY OTHER PAYMENT AND NO DEDUCTION WAS CLAIMED A S THE SOURCE OF THE PURCHASE WAS DULY PROVED AND THERE WAS NO EVIDENCE THAT HE ASSES SEE EARLIER PURCHASED THE DIAMONDS BY PAYING CASH MONEY. 6. FOR THAT THE LD. C.I.T(A) ERRED IN CONFIRMING TH E ADDITION OF RS. 41,17,365/- AS UNEXPLAINED CASH CREDIT U/S. 68 WHEN THERE IS NOTHI N8 ON RECORD TO TREAT THE SAID SUM AS CONCEALED INCOME WHICH HAD COME TO HIS NOTICE 01 THE AO IN THE COURSE OF ASSESSMENT PROCEEDINGS, 7. FOR THAT THE LD. C.I.T(A) ERRED IN ADDIN8 BACK R S. 41,17,365/- AS UNEXPLAINED CASH CREDIT WHEN ALL THE EVIDENCES WITH REGARD TO THE EARNING O F THE SAID CAPITAL AAIN WERE FILED AND THE LD. AO FAILED TO BRING ON RECORD ANY EVIDENCE TO PR OVE THE CONTRARY EXCEPT RELYING OF THE HERE SAY COMMUNICATION FORWARDED BY THE DGIT(INV). 8. FOR THAT THE LD. C.I.T(A) ERRED IN CONFIRMING TH E ESTIMATE AND MAKING ADDITION OF RS. 21,434/- AS PAYMENT MADE FOR ARRANGING THE CAPITAL GAIN WHEN THERE WAS NO SUCH PAYMENT NOR ANY EVIDENCE WAS BROUGHT ON RECORD TO PROVE THE SAM E. ITA NO.1929/KOL/2018 A.Y. 2006-07 SWARNASATHI ADVISORY SERVICES PVT. LTD. VS. I TO WD-9(4), KOL. PAGE 7 9. FOR THAT THE REOPENING OF THE ASSESSMENT FOR THE REASONS RECORDED WAS NOT MAINTAINABLE SINCE THE SOURCE OF THE PAYMENT FOR PURCHASE FROM B HAWARLAL JAIN GROUP WAS EXPLAINED AND THEREFORE NO OTHER ADDITION ON ANY OTHER ISSUE WAS CALLED FOR. ITA NO.634/KOL/2017 SANJU JALAN A.YR.2012-13 6 10. FOR THAT THE ASSESSEE CRAVES LEAVE TO ADD, ALTE R OR AMEND ANY GROUND BEFORE OR AT THE TIME OF HEARING. 10. FIRST WE WILL TAKE UP FOR CONSIDERATION GROUND NO.5 WITH REGARD TO THE ADDITION ON ACCOUNT OF BOGUS PURCHASES OF DIAMONDS. ON THE ABOVE ISSUE THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS WERE MADE BEFORE THE REVENUE AUT HORITIES. THE LD DR RELIED ON THE ORDER OF THE REVENUE AUTHOR ITIES. 11. THE UNDISPUTED FACTS OF THE CASE ARE THAT THE A SSESSEE PURCHASED JEWELLERY WORTH RS.14,55,472/- FROM NICE DIAMONDS, MUMBAI ON 17.3.2 012. THE ASSESSEE PAID NICE DIAMONDS THE PURCHASE VALUE OF THE JEWELLERY BY TWO CHEQUES FOR RS.10,02,472 AND RS.4,53,000 RESPECTIVELY DATED 27.3.2012 AND 28.3.2 012 RESPECTIVELY. IN THE BALANCE SHEET AS ON 31.3.2013 THE ASSESSEE HAS SHOWN THE VALUE OF TH E JEWELLERY AS ADDITION TO HIS CAPITAL. THE DOCUMENTARY EVIDENCE LIKE BILLS, INVOICES, BANK STA TEMENTS ETC., WERE FURNISHED BY THE ASSESSEE AND THERE IS NO DISPUTE ON THIS ASPECT. 12. THE RETURN OF INCOME FILED BY THE ASSESSEE FOR AY 2012-13 WAS ACCEPTED AND AN INTIMATION WAS ISSUED U/S.143(1) OF THE ACT. 13. IT APPEARS THAT THERE WAS INFORMATION RECEIVED BY THE AO OF THE ASSESSE FROM D.I.T. (INVESTIGATION)-II, MUMBAI. THE INFORMATION RECEIVE D WAS THAT THERE WAS A SEARCH AND SEIZURE OPERATION CONDUCTED IN THE CASE OF BHAWARLAL JAIN G ROUP OF CASES ON 03.10.2013. CONSEQUENT TO THE SAID SEARCH AND INVESTIGATION CONDUCTED, IT CAME TO LIGHT THAT BHAWARLAL JAIN GROUP WAS PROVIDING BOGUS/ACCOMMODATION ENTRIES TO SEVERAL PE RSONS AND ENTITIES AND THESE ENTRIES WERE BOGUS ENTRIES. NICE DIAMONDS IS ONE OF THE ENTITIES BELONGING TO BHAWARLAL JAIN GROUP OF CASES. SINCE THE ASSESSEE CLAIMED TO HAVE MADE PURC HASES FROM NICE DIAMONDS, THE ASSESSMENT IN THE CASE THE ASSESSEE WAS REOPENED U/ S 147 OF THE INCOME TAX ACT, 1961 (ACT.). ITA NO.634/KOL/2017 SANJU JALAN A.YR.2012-13 14. IN THE ASSESSMENTS CONCLUDED, THE AO AFTER MAKI NG REFERENCE TO ALL THE EVIDENCES FILED BY THE ASSESSEE TO PROVE THE SOURCE OF FUNDS AS WELL A S EVIDENCE OF PAYMENTS AND CAME TO THE CONCLUSION THAT THE PURCHASES IN QUESTION WERE NOT GENUINE. ULTIMATELY THE AO MADE AN ADDITION IN THE CASE OF THE ASSESSEE BY OBSERVING T HAT SINCE THE ASSESSEE IN THE BALANCE SHEET HAS SHOWN INCREASE IN JEWELRY THERE IS NO EVIDENCE ON RECORD TO DOUBT THAT HE DIDN'T MAKE ANY PURCHASE IN THE FY-2011-12 BUT THE PURCHASES WERE M ADE BY THE ASSESSEE FROM SOME OTHER PARTY IN EARLIER YEAR BUT THE ASSESSEE HAS NOT FURN ISHED THE DETAILS OF THE SAME. ACCORDINGLY, EXPENDITURE INCURRED TOWARDS PURCHASE OF DIAMONDS S HOWN AS JEWELERY IN THE BALANCE SHEET IS CONSIDERED AS UNEXPLAINED INVESTMENT U/S 69 OF THE ACT AND DEEMED TO BE THE INCOME OF THE ASSESSEE FOR THE FINANCIAL YEAR 2009-10. ON APPEAL BY THE ASSESSEE THE CIT(A) CONFIRMED THE ORDERS OF THE AO. 15. WE HAVE HEARD THE SUBMISSIONS OF THE LD. COUNSE L FOR THE ASSESSEE AND THE LD. DR. THE LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE JEWEL LERY IN QUESTION HAS BEEN PURCHASED BY THE ASSESSEE WHICH WAS CONFIRMED BY NICE DIAMONDS AND T HE PAYMENT HAS BEEN MADE BY CHEQUES. MORE IMPORTANT IT WAS POINTED OUT THAT THE INVESTMENTS HAS BEEN SHOWN IN THE BOOKS OF ACCOUNTS AND THE SOURCE HAD BEEN DULY EXPLAINED AS FROM THE DISCLOSED BANK ACCOUNTS OF THE ASSESSEE. IT WAS SUBMITTED THAT IN THE CIRCUMST ANCES THE ADDITION MADE U/S 69 OF THE ACT CANNOT BE SUSTAINED. THE LD. DR RELIED ON THE ORDER S OF CIT(A). ITA NO.1929/KOL/2018 A.Y. 2006-07 SWARNASATHI ADVISORY SERVICES PVT. LTD. VS. I TO WD-9(4), KOL. PAGE 8 16. WE HAVE GIVEN A VERY CAREFUL CONSIDERATION TO T HE RIVAL SUBMISSIONS. IT IS AN UNDISPUTED POSITION THAT ADDITION IN CASE OF THE ASSESSE HAS B EEN MADE U/S 69 OF THE ACT. SECTION 69 OF THE ACT READS AS FOLLOWS :- UNEXPLAINED INVESTMENTS 69. WHERE IN THE FINANCIAL YEAR IMMEDIATELY PRECEDING THE ASSESSMENT YEAR THE ASSESSEE HAS MADE INVESTMENTS W HICH ARE NOT RECORDED IN THE BOOKS OF ACCOUNT, IF ANY, MAINTAINED BY HIM FOR ANY SOURCE OF INCOME, AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE OF THE INVESTMENTS OR THE EXPLANATION OFFERED BY HIM IS NOT, IN THE OPINION O F THE ASSESSING OFFICER, SATISFACTORY, THE 8 ITA NO.634/KOL/2017 SANJU JALAN A.YR.2012-13 8 VALUE OF THE INVESTMENTS MAY BE DEEMED TO BE THE INCOME OF THE A SSESSEE OF SUCH FINANCIAL YEAR. 17. IN THE PRESENT CASE INVESTMENTS OF JEWELLERY IS DULY REFLECTED IN THE BOOKS OF ACCOUNTS OF THE ASSESSES. THEREFORE THERE IS NO SCOPE OF APPLYI NG THE PROVISION OF SECTION 69 OF THE ACT. APART FROM THE ABOVE SOURCE OF FUNDS IS EVIDENCED B Y THE PAYMENTS FROM DISCLOSED BANK ACCOUNTS. THEREFORE THE SOURCE OF INVESTMENTS IS AL SO PROPERLY AND SATISFACTORILY EXPLAINED BY THE ASSESSES. IN THE CIRCUMSTANCES, WE ARE OF THE V IEW THAT THE ADDITIONS MADE BY THE AO AND CONFIRMED BY CIT(A) CANNOT BE SUSTAINED AND THE SAM E IS DIRECTED TO BE DELETED. GROUND NO.5 RAISED BY THE ASSESSEE IS ACCORDINGLY ALLOWED. 18. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ON THE OTHER GROUNDS OF APPEAL VI., GR.NO.6 TO 8, IT IS THE PLEA OF THE ASSESSEE BEFORE US THAT WHEN AN ASSESSMENT IS REOPENED FOR ONE REASON BUT NO ADDITION IS MADE IN THE REASSESSM ENT PROCEEDINGS IN RESPECT OF THAT REASON OR WHEN THE SAID ADDITION IS DELETED, THEN, NO FURT HER ADDITION CAN BE MADE IN THE REASSESSMENT PROCEEDINGS. IN THIS REGARD LD. COUNSEL FOR THE ASS ESSEE PLACED RELIANCE ON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. JE T AIRWAYS INDIA LTD., 331 ITR 326 (BOM), WHEREIN THE HONBLE BOMBAY HIGH COURT HELD T HAT IF AO DOES NOT ASSESS INCOME FOR WHICH REASONS WERE RECORDED U/S 147 OF THE ACT, HE CANNOT ASSESS OTHER INCOME U/S 147 OF THE ACT. THE HONBLE COURT OBSERVED THAT (I) S. 147 PRO VIDES THAT THE AO MAY ASSESS THE INCOME WHICH HAS ESCAPED ASSESSMENT AND ALSO ANY OTHER IN COME CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT AND WHICH COMES TO HIS NOTICE SU BSEQUENTLY IN THE COURSE OF THE PROCEEDINGS UNDER THIS SECTION. EXPLANATION 3 TO S . 147 INSERTED BY F (NO. 2) ACT, 2009 W.R.E.F 1.4.1989 PROVIDES THAT THE AO MAY ASSESS O R REASSESS THE INCOME IN RESPECT OF ANY ISSUE NOTWITHSTANDING THE REASONS FOR SUCH ISSUE HAVE NOT BEEN INCLUDED IN THE REASONS RECORDED ITA NO.634/KOL/2017 SANJU JALAN A.YR.2012-13 9 (II) THE WORDS AND ALSO INDICATE THAT REASSESSMEN T MUST BE WITH RESPECT TO THE INCOME FOR WHICH THE AO HAS FORMED AN OPINION AND ALSO IN RESP ECT OF ANY OTHER INCOME WHICH COMES TO HIS NOTICE SUBSEQUENTLY. HOWEVER, IF THE AO ACCEPTS THE OBJECTION OF THE ASSESSEE AND DOES NOT ASSESS THE INCOME WHICH WAS THE BASIS OF THE NO TICE, IT IS NOT OPEN TO HIM TO ASSESSEE INCOME UNDER SOME OTHER ISSUE INDEPENDENTLY; (III) EXPLANATION 3 TO S. 147 WAS INSERTED TO SUPER SEDE THE JUDGMENTS IN VIPIN KHANNA 255 ITR 220 (P&H) & TRAVANCORE CEMENTS 305 ITR 170 (KER ) WHERE IT WAS HELD THAT THE AO COULD NOT ASSESS INCOME IN RESPECT OF ISSUES UNCONN ECTED WITH THE ISSUE FOR WHICH THE NOTICE WAS ISSUED. HOWEVER, EXPLANATION 3 DOES NOT AFFECT THE JUDGMENTS IN SHRI. RAM SINGH 306 ITR 343 (RAJ) & ATLAS CYCLE INDUSTRIES 180 ITR 319 (P&H) WHERE IT WAS HELD THAT IF THE AO ACCEPTED THAT THE REASONS FOR WHICH THE NOTICE WAS ISSUED WERE NOT CORRECT, HE WOULD CEASE TO HAVE JURISDICTION TO PROCEED WITH THE REASSESSMENT; (IV) EXPLANATION 3 LIFTS THE EMBARGO INSERTED BY JU DICIAL INTERPRETATION ON THE MAKING OF AS 147 ASSESSMENT IN RESPECT OF ITEMS NOT REFERRED TO IN T HE RECORDED REASONS. HOWEVER, IT DOES NOT AND CANNOT OVERRIDE THE SUBSTANTIVE PART OF S. 147 THAT THE INCOME FOR WHICH THE NOTICE WAS ISSUED MUST BE ASSESSABLE. THE LEARNED DR RELIED ON THE ORDER OF THE CIT(A). 19. WE HAVE CONSIDERED THE SUBMISSION OF THE LEARNE D COUNSEL FOR THE ASSESSEE IN THE LIGHT OF THE JUDGMENT OF THE HONBLE BOMBAY IN THE CASE OF J ET AIRWAYS (I) LTD. (SUPRA). WE ARE OF ITA NO.1929/KOL/2018 A.Y. 2006-07 SWARNASATHI ADVISORY SERVICES PVT. LTD. VS. I TO WD-9(4), KOL. PAGE 9 THE VIEW THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE PRESENT CASE THE RATIO LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF JET AI RWAYS INDIA LTD. (SUPRA)IS SQUARELY APPLICABLE. AS WE HAVE ALREADY SEEN THAT THE ASSESS MENT WAS REOPENED FOR THE REASON THAT THE JEWELLERY PURCHASED BY THE ASSESSEE WAS FROM UNDISC LOSED SOURCES AND THE PURCHASES WERE BOGUS. THAT ADDITION HAS NOT BEEN SUSTAINED NOW. TH E ASSESSING OFFICER HOWEVER, PROCEEDED TO MAKE AN ADDITION ON ACCOUNT OF LONG TERM CAPITAL GAIN (LTCG) ON SALE OF SHARES. THIS WAS CLEARLY BEYOND 10 ITA NO.634/KOL/2017 SANJU JAL AN A.YR.2012-13 10 THE SCOPE OF THE PROCEEDINGS UNDER SECTION 148 OF THE ACT. THE ASSES SING OFFICER, THEREFORE, COULD NOT HAVE PROCEEDED TO MAKE THE IMPUGNED ADDITION OF BOGUS LT CG. SIMILAR VIEW HAS BEEN EXPRESSED BY THE HONBLE DELHI HIGH COURT IN THE CASE OF RANB AXY LABORATORIES VS. CIT, ITA 148 OF 2008 DATED 3/6/2011. THE HONBLE DELHI HIGH COURT F OLLOWED THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF JET AIRWAYS (SUPRA ). IN THAT VIEW OF THE MATTER WE HOLD THAT THE ADDITION BY TREATING THE LTCG AS BOGUS CANNOT B E SUSTAINED AS IT WAS BEYOND THE SCOPE OF THE PROCEEDINGS UNDER SECTION 147 OF THE ACT. WE TH EREFORE DELETE THE SAID ADDITION ALSO AND ALLOW GROUND NO..6 TO 8. 8. I ADOPT THE ABOVE DETAILED REASONING MUTATIS MU TANDIS TO CONCLUDE THAT THE LATTER ADDITION OF 18 LAC SHARE APPLICATION MONEY HAS TO BE DELETED SI NCE THE SOLE RESPECTING REASONS ITSELF DOES NOT SURVIVE. I ORDER . 9. THIS ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 04/01/2019 SD/- (S.S. GODARA) JUDICIAL MEMBE R KOLKATA, *DKP/SR.PS - 04/01/2019 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-SWARANSATHI ADVISORY SERVICES PVT. LTD., BLOCK-C, FLAT NO.201, 2 ND FL, 4, D.LK. KHAN ROAD, KOLKATA-25 2. /RESPONDENT-ITO WARD-9(4), P-7, CHOWRINGHEE SQUARE, KOLKATA-69 3. ' % / CONCERNED CIT 4. % - / CIT (A) 5. & ))' , ' / DR, ITAT, KOLKATA 6. + / GUARD FILE. BY ORDER/ , /TRUE COPY/ / ',