Shri Yatish Kumar Amarnath Bansal, Ahmedabad V. ACIT, Circle-5(1), Ahmedabad

ITA 2137/AHD/2017

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 1792 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 16-03-2020
• Assessment Year: 2008-2009
• Appeal Filed On: 26-09-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: L P JAIN
• Assessee Lawyers: PF JAIN
• Keywords: Unexplained investment; Principle of natural justice; Additional evidence; Corroborative evidences; Reassessment proceedings; TDS; FORM 26AS
• Section: 133(6); 264; 194J; 13; 22; 147; 148

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, AHMEDABAD (CONDUCTED THROUGH VIRTUAL COURT AT AHMEDABAD) BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER AND SHRI WASEEM AHMED , ACCOUNTANT MEMBER ASSESSEE BY : SHRI P.F. JAIN, A.R REVENUE BY : SHRI L.P. JAIN , SR .D R / DATE OF HEARING : 25 / 11 / 2020 / DATE OF PRO NOUNCEMENT: 22 / 02 /2021 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER : THESE FOUR APPEALS HAVE BEEN FILED AT THE INSTA NCE OF THE ASSESSEE AGAINST THE APPELLATE ORDERS OF THE LEARNED COMMISSI ONER OF INCOME - TAX (APPEALS) , SL. NO(S) ITA NO(S) ASSET. YEAR(S) APPEAL(S) BY APPELLANT VS. RESPONDENT APPELLANT RESPONDENT 1 - 2 . 2137 /AHD/2017 & 2138/AHD/2017 2008 - 09 & 2009 - 10 SHRI YATISH KUMAR AMARNATH BANSAL, C/O. PARAS F. JAIN & CO. 102, DWARKESH COMPLEX, OPP. PATEL VAS, MITHAKHALI GAM, MITHAKHALI, AHMEDABAD - 380001. PAN: AFAPB5457P A.C.I.T., CIRCLE - 5(1) AHMEDABAD 3 - 4 . 690/AHD/2019 & 171/AHD/2016 2010 - 11 & 2011 - 12 SHRI YATISH KUMAR AMARNATH BANSAL, 31, BLOCK - B, SECOND FLOOR, GH - 38, TRIVENI APPARTMENT, SECTOR - 20, EVERSHINE NAGAR, PANCHKULA, HARYANA - 134109 & C/O. PARAS F. JAIN & CO. 102, DWARKESH COMPLEX, OPP. PATEL VAS, MITHAKHALI GAM, MITHAKHALI, AHMEDABAD - 380001. PAN: AFAPB5457P A.C.I.T., CIRCL E - 5(1) AHMEDABAD ITA NOS.171/AHD/2016 AND 3 OTHERS ASSTT. YEAR 2011 - 12 2 AHMEDABAD [ LD. CIT (A) IN SHORT] RELEVANT TO ASSESSMENT YEAR S 2008 - 09 , 2009 - 10, 2010 - 11 AND 20 11 - 12 . 2. FIRST WE TAKE ITA NO. 171/AHD/2016 FOR A.Y. 2011 - 1 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THE LEARNED CIT(APPEALS) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE ADDITION OF RS.1,55,55,551/ - BEING RECEIPTS FROM ACCUTEST RESEARCH LABORATORIES PVT. LTD. IN AS MUCH AS THAT IN THE REAL SENSE IT DID NOT PERTAIN TO THE ASSESSEE WITHOUT PROPERLY CONSIDERING THE FACTS AND EVIDENCE ADDUCED BY THE APPELLANT. 2. THE LEARNED CIT(APPEALS) HAS ERRED IN LAW AND ON FACTS IN NOT PROPERLY C ONSIDERING THE WRITTEN SUBMISSION MADE BEFORE HIM AND REPLY TO THE REMAND REPORT OF THE AO AGAINST THE ADDITION OF RS.1,55,55,551/ - 3. THE LEARNED CIT(APPEALS) OUGHT TO HAVE DELETED THE ADDITION OF RS.1,55,55,551/ - BEING ALLEGED RECEIPT FROM ACCUTEST RESEARC H LABORATOTIES PVT. LTD. CONSIDERING THE SURROUNDING CIRCUMSTANCES, TEST OF HUMAN PROBABILITY, PRINCIPLE OF TAXING INCOME IN THE HANDS OF REAL PERSON. 4. THE LEARNED CIT( APPEALS) HAS ERRED IN LAW AND ON FACTS IN NOT PROPERLY CONSIDERING THE BANK ACCOUNT OF THE ASSESSEE WITH JANKALYAN SAHAKARI BANK ATTACHED WITH THE ASSESSING OFFICER AS ANNEXURE - 4, THE AFFIDAVIT OF THE APPELLANT PROVING THE FUNDS GOING BACK TO THE PRAYER CO MPANY ITS DIRECTOR AND ASSOCIATE CONCERNS. 5. THE LEARNED CIT(APPEALS) HAS ERRED IN LAW AND FACTS IN NOT APPRECIATING THE FACT THE NO INQUIRIES WERE MADE BY THE A.O REGARDING THE CONTENTIONS OF THE ASSESSEE AGAINST THE RECEIPTS BY THE PAYER COMPANY AT THE MO ST PROTETIVE ADDITION OUGHT TO HAVE BEEN SUSTAINED IN THE HANDS OF THE ASSESSEE. 6. THE LEANRED CIT(APPEALS) HAS ERRED IN LAW AND FACTS IN NOT APPRECIATING THE FACT THAT DEPOSITS APPLICATION MADE ON U/S.271(1)(C) OF THE ACT/01/2015 TO THE AO FOR INSPECTION O F FILE AND OBTAINMENT OF VARIOUS DOCUMENTS REFERRED TO IN THE ASSESSMENT ORDER, THE SAME WERE NOT MADE AVAILABLE RESULTING INTO VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. 7. HE HAS ERRED IN LAW AND FACTS IN UPHOLDING THE FOLLOWING ADDITIONS WITHOUT PROPERLY APPRECIATING THE FACTS. A) BANK INTEREST: 6,620 B) UN - ACCOUNTED BANK RECEIPTS 6,60,000 C) UN - DISCLOSED INVESTMENTS IN PROPERTIES 10,66,000 8. ON THE FACTS NO INTEREST UNDER SECTION 234 - B OUGHT TO HAVE BEEN LEVIED. 9. THE APPELLANT CRAVES LEAVE, TO ADD/TO ALTER AND/OR MODIFY ANY GROUNG OF APPEAL. 3 . THE ISSUE RAISED BY THE ASSESSEE IS THAT THE LEARNED CIT (A) ERRED IN CONFIRMING THE ADDITION MADE BY THE AO FOR 1,55,55,551/ - ON ACCOUNT OF PROFESSIONAL RECEIPT. ITA NOS.171/AHD/2016 AND 3 OTHERS ASSTT. YEAR 2011 - 12 3 4 . T HE FACTS IN BRIEF ARE THAT THE ASSESSEE IN THE PRESENT CASE IS A QUALIFIED DOCTOR AND A FULL - TIME EMPLOYEE IN A COMPANY NAMELY IPCA LABORATORIES LTD. THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION HAS FILED HIS RETURN OF INCOME DECLARING AN INCOME OF 93 ,56,590/ - UNDER THE HEAD SALARY AND HOUSE PROPERTY. 4 .1 THE AO DURING THE ASSESSMENT PROCEEDINGS FOUND THAT THE ASSESSEE HAS RECEIVED A SUM OF 1,55,55,551/ - FROM A COMPANY NAMELY ACCUTEST REASEARCH LABORATORIES (I) PVT. LTD. (FOR SHORT ARLPL) AS PROF ESSIONAL CHARGES AFTER DEDUCTING THE T AX AT SOURCE UNDER SECTION 194J OF THE ACT. THE OBSERVATION OF THE AO WAS BASED ON THE BASIS OF FORM 26AS WHEREIN THE IMPUGNED TRANSACTION WAS APPEARING. HOWEVER, THE ASSESSEE HAS NOT SHOWN SUCH PROFESSIONAL RECEIPT IN THE INCOME TAX RETURN FILED BY HIM. ON QUESTION BY THE AO, THE ASSESSEE CONTENDED THAT HE HAS NOT RENDERED ANY SERVICE TO SUCH COMPANY AS WELL AS HE HAS NOT RECEIVED ANY PROFESSIONAL FEES FROM SUCH COMPANY. THE ASSESSEE IN SUPPORT OF HIS CONTENTION HAS FI LED AN AFFIDAVIT DATED 03 AUGUST 2013 TO THE AO DURING THE ASSESSMENT PROCEEDINGS. 4 .2 HOWEVER, THE AO CONDUCTED THE ENQUIRY FROM THE COMPANY NAMELY ARLPL WHICH CONFIRMED TO HAVE MADE PAYMENT TO THE ASSESSEE THROUGH THE BANKING CHANNEL AND AFTER DEDUCTING THE TDS UNDER THE PROVISIONS OF SECTION 194J OF THE ACT. THIS FACT WAS ALSO CONFIRMED BY THE AO ON SUBSEQUENT ENQUIRY FROM THE ASSESSEE BANK NAMELY JANAKALYAN SAHAKAARI BANK VASHI MUMBAI. THE AO FURTHER FOUND THAT IMPUGNED BANK ACCOUNT SB/2470 WAS NOT DISCLOSED BY THE ASSESSEE IN THE INCOME TAX RETURN. FURTHER THE AO ANALYZED THE PAYMENT SIDE OF BANK STATEMENT AND FOUND, INTER - ALIA THAT PAYMENT WAS MADE BY THE ASSESSEE TO TWO ENTITIES NAMELY ANI LINE CONSTRUCTION FOR 7,50,000/ - AND GOKULDHAM R EAL ESTATE FOR 18 LAKH RESPECTIVELY. AS SUCH THE ASSESSEE HAS PURCHASED FLATS AND INCURRED INTERIOR DECORATION EXPENSES FROM THE AFORESAID COMPANIES. THIS FACT WAS ALSO CONFIRMED BY THE REGISTRAR OF PROPERTY THAT THE FLATS WERE REGISTERED JOINTLY IN THE NAME OF THE ASSESSEE AND HIS WIFE. ITA NOS.171/AHD/2016 AND 3 OTHERS ASSTT. YEAR 2011 - 12 4 4 .3 ON CONFRONTATION BY THE AO THE DETAILS GATHERED FROM THE ARLPL, THE BANK, THE BUILDER AND THE REGISTRAR, THE ASSESSEE AGREED TO HAVE RECEIVED THE IMPUGNED AMOUNT OF PROFESSIONAL FEES FROM THE COMPANY. HOWEVER, TH E ASSESSEE FURTHER CONTENDED THAT HE HAS INCURRED EXPENSES AGAINST SUCH PROFESSIONAL FEES BUT THE DETAILS OF SUCH EXPENSES WERE NOT MAINTAINED BY HIM. AS PER THE ASSESSEE, SUCH A HUGE AMOUNT OF PROFESSIONAL FEES CANNOT BE EARNED WITHOUT INCURRING EXPENSES. ACCORDINGLY THE ASSESSEE PRAYED TO ALLOW THE DEDUCTION FOR THE AMOUNT WITHDRAWN FROM THE BANK IN CASH TOWARDS THE EXPENSES AGAINST SUCH PROFESSIONAL INCOME. THE ASSESSEE BESIDES THE CASH WITHDRAWAL ALSO CONTENDED THAT IT HAS INCURRED CERTAIN EXPENSES BY I SSUING THE CHEQUES TO THE PARTIES WHICH WOULD BE ALLOWED AS DEDUCTION AGAINST SUCH PROFESSIONAL INCOME. 4 .4 HOWEVER, THE AO DISREGARDED THE CONTENTION OF THE ASSESSEE BY OBSERVING AS UNDER: I. THE PRIMARY ONUS LIES UPON THE ASSESSEE TO JUSTIFY THE EXPENSES INCURRED BY HIM BASED ON THE DOCUMENTARY EVIDENCE. II. THE ASSESSEE HAS PROVIDED SPECIALIZED SERVICES IN THE FIELD OF CLINICAL PHARMACOLOGY STUDIES I.E. THE INTERPRETATION OF IN - VITRO DATA AND I TS EXTRAPOLATION TO FIND OUT SUITABILITY OF INVESTIGATIONAL PRODUCT TO UNDERGO IN - VIVO BIO - AVAILABILITY AND BIO - EQUIVALENCE STUDIES TO THE COMPANY WHICH SUGGESTS THAT THE ASSESSEE, BEING AN EXPERT, WAS NOT REQUIRED TO AVAIL ANY OTHER SERVICES FROM ANY OTH ER COMPANY/ORGANIZATION/PERSON. THUS IT WAS NOT NECESSARY FOR THE ASSESSEE TO INCUR ANY EXPENSE AGAINST SUCH PROFESSIONAL RECEIPTS. III. THE ASSESSEE IS CHANGING HIS STATEMENT FREQUENTLY AND THEREFORE THE CONTENTION I.E. FOR THE EXPENSES OF THE ASSESSEE CANNO T BE RELIED UPON UNTIL AND UNLESS IT IS SUPPORTED ON THE DOCUMENTARY EVIDENCES. ITA NOS.171/AHD/2016 AND 3 OTHERS ASSTT. YEAR 2011 - 12 5 4 .5 IN VIEW OF THE ABOVE, THE AO DISREGARDED THE CONTENTION OF THE ASSESSEE AND MADE THE ADDITION OF THE FULL AMOUNT OF RS. 1,55,55,551/ - TO THE TOTAL INCOME OF THE ASSESSEE A S UNDISCLOSED INCOME. 5 . AGGRIEVED ASSESSEE PREFERRED AN APPEAL TO THE LEARNED CIT (A). 5.1 THE ASSESSEE BEFORE LEARNED CIT (A) MADE EXTENSIVE SUBMISSION S CHALLENGING THE ADDITION WHICH ARE ELABORATED HERE - IN - UNDER: 5.2 THE ASSESSEE BEFORE THE LEARNED C IT (A) SUBMITTED THAT HE HAS NOT RECEIVED ANY PROFESSIONAL FEES FROM THE ARLPL IN THE YEAR UNDER CONSIDERATION AS ALLEGED BY THE AO. IN FACT HE HAS ADMITTED THE RECEIPT OF PROFESSIONAL FEE DURING THE ASSESSMENT PROCEEDINGS IN THE AFFIDAVIT FURNISHED DATED 10 TH FEBRUARY 2014 ON THE WRONG ADVICE OF THE CHARTERED ACCOUNTANT WHO WAS APPOINTED BY ARLPL. IN FACT THE COMPANY, ARLPL HAS FRAMED HIM ( THE ASSESSEE ) BY ENGAGING ITS CONSULTANT TO REPRESENT H IS ( THE ASSESSEE ) CASE BEFORE THE AO. THE ARLPL FOR THIS PURPOS E HAS ALSO PAID THE FEES TO THE CONSULTANT. AS SUCH, THE 1 ST AFFIDAVIT FURNISHED BY THE ASSESSEE DATED 3 RD AUGUST 2013 IS TRUE AND CORRECT WHEREIN IT WAS CONTENDED THAT HE HAS NOT RECEIVED ANY PROFESSIONAL FEES FROM THE COMPANY. ACCORDINGLY, THE ASSESSEE HAS NOT RAISED ANY GROUND OF APPEAL BEFORE THE LEARNED CIT (A) FOR ALLOWING THE EXPENSES AGAINST SUCH PROFESSIONAL FEES WHICH WAS DEMANDED BY THE CHARTERED ACCOUNTANT, APPOINTED BY THE COMPANY ARLPL, DURING THE ASSESSMENT PROCEEDINGS. AS SUCH, THE QUESTION OF CLAIMING ANY EXPENSE AGAINST THE SO - CALLED PROFESSIONAL FEE DOES NOT ARISE. ACCORDINGLY, THE EXPENDITURE CLAIMED BY THE COMPANY ARLPL UNDER THE HEAD PROFESSIONAL FEE PAID TO THE ASSESSEE SHOULD HAVE BEEN DISALLOWED IN ITS (ARLPL) HANDS AND ACCORDINGLY THE SAME SHOULD HAVE BEEN TAXED SUBSTANTIVELY IN THE HANDS OF ARLPL. FURTHERMORE, THE CHARTERED ACCOUNTANT WHO WAS APPOINTED AND PAID BY THE COMPANY, WILL CERTAINLY PROTECT THE INTEREST OF THE COMPANY AND NOT THE ASSESSEE. THE ASSESSEE IN SUPPORT OF HIS CO NTENTION FILED COPIES OF EMAIL CONVERSATION BETWEEN COUNSEL, ARLPL OFFICIAL AND ASSESSEE WHICH IS SUGGESTING THAT THE COUNSEL WAS APPOINTED BY THE ARLPL. ITA NOS.171/AHD/2016 AND 3 OTHERS ASSTT. YEAR 2011 - 12 6 5.3 THE COMPANY, ARLPL IS ENGAGED IN THE ACTIVITY OF CLINICAL RESEARCH ACTIVITIES AND IT IS NOT CARRYING OUT ANY MANUFACTURING ACTIVITY. AS SUCH, THE ASSESSEE IS NOT A SUBJECT EXPERT IN THE FIELD OF CLINICAL TRIALS AND THEREFORE HE IS NOT IN A POSITION TO RENDER THE SERVICES TO THE COMPANY AS CLAIMED BY IT (THE COMPANY ARLPL). 5.4 THE IMPUGNED BAN K ACCOUNT BEARING NUMBER SB/2470 IN JAN KALYAN SAHKARI BANK WAS OPENED ON 22 ND APRIL 2010 ON THE INTRODUCTION OF DR. SANTOSH JOSHI, DIRECTOR OF THE COMPANY ARLPL AND REMAINED OPERATIVE FOR A SHORT PERIOD OF TIME TILL 9 TH SEPTEMBER 2010 WHEREIN A SUM OF 12 9 LAKHS WAS DEPOSITED BY THE ARLPL. THE PERIOD FOR WHICH THE BANK ACCOUNT WAS IN OPERATION IN - FACT WAS FOR A SHORT PERIOD WHICH IS VERY UNUSUAL AND ACCORDINGLY SUGGESTS THAT THE TRANSACTIONS FOR THE RECEIPT OF PROFESSIONAL FEES SHOWN IN SUCH BANK ACCOUNT W AS NOT THE REAL TRANSACTIONS. THE ASSESSEE ALSO CONTENDED THAT THE IMPUGNED BANK ACCOUNT WAS NOT OPERATED BY HIM. THE SUBMISSION OF THE ASSESSEE STANDS AS UNDER: I. THE CHEQUES FOR THE PROFESSIONAL FEES WERE DEPOSITED IN THE BANK ACCOUNT BY THE PERSON OF THE COMPANY, ARLPL WHICH CAN BE VERIFIED FROM THE DEPOSIT SLIPS. II. SIMILARLY THE CASH WAS WITHDRAWN FROM THE BANK ACCOUNT BY THE PERSON OF THE COMPANY WHICH CAN BE VERIFIED FROM THE SIGNATURE ON THE BACK OF THE CHEQUE. III. THE WITHDRAWAL THROUGH THE CHEQUE/RTGS WERE ALSO MADE BY THE PERSONS OF THE COMPANY FOR THE BENEFIT OF THE ENTERPRISES ASSOCIATED WITH THE ARLPL . IN FACT CHEQUE BOOK AND THE DEPOSIT SLIPS WERE NOT IN THE POSSESSION OF ASSESSEE BUT IN THE POSSESSION OF THE ARLPL . IV. THE AMOUNT RECEIVED IN THE IMPUGBED BANK ACCOUNT TRANSFERRED TO THE ACCOUNT OF DIRECTOR AND ASSOCIATE OF THE COMPANY ARLPL. THUS THE AMOUNT ULTIMATELY HAS GONE BACK TO THE COMPANY. ITA NOS.171/AHD/2016 AND 3 OTHERS ASSTT. YEAR 2011 - 12 7 5.5 THE ASSESSEE HAS NOT ENTERED INTO ANY AGREEMENT WITH THE COMPANY, ARLPL, FOR PROVIDING THE SO - CALLED SERVICES TO IT (ARLPL). SIMILARLY, THE COMPANY HAS NOT ADDUCED ANY DOCUMENTARY EVIDENCE FOR THE SERVICES RECEIVED FROM THE ASSESSEE THOUGH IT WAS SPECIFICALLY CALLED FOR BY THE AO IN THE NOTICE ISSUED UNDER SECTI ON 133(6) OF THE ACT. THUS IN THE ABSENCE OF ANY DOCUMENTARY EVIDENCE IT IS PROVED THAT THE ASSESSEE HAS NOT RENDERED ANY SERVICE TO THE COMPANY (ARLPL). THEREFORE, THE EXPENDITURE CLAIMED BY THE COMPANY WAS FOR PERSONAL BENEFIT OF THE DIRECTORS AND THE AS SOCIATED CONCERNS. IT WAS ALSO POINTED OUT THAT THE ASSESSEE IS A SENIOR EXECUTIVE OF A LIMITED COMPANY AND IN FULL - TIME SERVICE. THEREFORE IT WAS NOT POSSIBLE FOR THE ASSESSEE TO RENDER SERVICES TO A 3 RD COMPANY WHICH IS ALSO IN CONFLICT TO THE INTEREST O F ITS OWN COMPANY I.E. IPCA LABORATORIES LTD. 5.6 THE ASSESSEE ALSO CLAIMED THAT HE HAS NEVER MET WITH THE COUNSEL APPOINTED BY THE COMPANY AND REPRESENTED THE CASE BEFORE THE AO. THEREFORE THE FACTS OF THE CASE WERE NOT CORRECTLY PRESENTED BEFORE THE AO DURING THE ASSESSMENT PROCEEDINGS. THIS FACT WAS ALSO NOTICED BY THE AO THAT THE QUALITY OF THE COMPLIANCE WAS EXTREMELY POOR. 5.7 THE ASSESSEE IN VIEW OF THE ABOVE PRAYED THAT FACTS OF THE CASE HAVE NOT BEEN CONSIDERED IN THE RIGHT PERSPECTIVE WHICH REQUIRES DETAILED INVESTIGATION BY LIFTING THE CORPORATE VEIL OF THE COMPANY. 6. THE LEARNED CIT (A) CALLED FOR THE REMAND REPORT FROM THE AO ON THE DOCUMENTS FILED BY THE ASSESSEE VIDE LETTER DATED 24 TH FEBRUARY 2015 WHICH WAS SUBMITTED BY THE AO VIDE L ETTER DATED 11 TH SEPTEMBER 2015. 7. THE AO, AT THE OUTSET OBJECTED ON THE ADMISSION OF THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE ON THE GROUND THAT THE ASSESSEE WAS PROVIDED SUFFICIENT OPPORTUNITIES FOR SUBMITTING THE NECESSARY DETAILS DURING ASSESSMENT PROCEEDINGS ITA NOS.171/AHD/2016 AND 3 OTHERS ASSTT. YEAR 2011 - 12 8 AND THEREFORE THERE W AS NO VIOLATION OF RULE 46A OF THE INCOME TAX RULE. BUT THE AO WITHOUT PREJUDICE TO THE ABOVE FILED THE REPLY AS DETAILED UNDER: I. THE CONTENTION OF THE ASSESSEE THAT THE PAYMENT MADE TO M/S POORVI ENTERPRISES FOR 3 LACS DATED 19 TH JULY 2010 WAS FOR THE BE NEFIT OF THE DIRECTOR OF THE COMPANY NAMELY SHRI SANTOSH JOSHI WAS REJECTED BY THE AO BY OBSERVING THAT THERE WAS NO EVIDENCE THAT AMOUNT RECEIVED FROM THE ASSESSEE WAS FORWARDED TO SHRI SANTOSH JOSHI DATED 28 TH JULY 2010. AS SUCH THE AMOUNT TRANSFERRED TO SHRI SANTOSH JOSHI DATED 28 TH JULY 2010 IS OF 4,15,000/ - . SIMILARLY THERE WERE ALSO OTHER TRANSACTIONS BETWEEN SHRI SANTOSH JOSHI AND M/S POORVI ENTERPRISES DATED 17 TH JUNE 2010. II. ALL THE EMAILS EXCHANGED BETWEEN THE COMPANY AND THE ASSESSEE FOR THE APP OINTMENT OF A NEW COUNSEL ARE NOT AVAILABLE WITH THE DEPARTMENT. THEREFORE IT IS NOT POSSIBLE TO COMMENT ON THE SAME. BUT LOOKING AT THE RELATIONSHIP BETWEEN THE ASSESSEE AND THE COMPANY, IT IS CLEAR THAT BOTH ARE CLOSELY WORKING WITH EACH OTHER. FURTHERMO RE, THE ASSESSEE HIMSELF HAS SIGNED POWER OF ATTORNEY IN FAVOUR OF THE NEW COUNSEL. SIMILARLY, BOTH THE AFFIDAVIT BEARING DATED 3 RD AUGUST 2013 AND 10 TH FEBRUARY 2014 WERE DULY SIGNED BY THE ASSESSEE. III. THE CONTENTION OF THE ASSESSEE THAT BANK ACCOUNT IN D ISPUTE WAS OPENED BY HIM ON THE INTRODUCTION OF SHRI SANTOSH JOSHI, THE DIRECTOR OF THE COMPANY DOES NOT CARRY ANY FORCE FOR THE REASON THAT GENERALLY NO STRANGER INTRODUCES UNKNOWN PERSON FOR OPENING THE BANK ACCOUNT. AS SUCH, THE ASSESSEE WAS VERY MUCH C ONNECTED WITH THE COMPANY. IV. LIKEWISE, THE AMOUNT RECEIVED IN THE IMPUGNED BANK WAS INVESTED BY THE ASSESSEE IN THE PROPERTIES TO THE TUNE OF 25.50 LAKHS WHICH EVIDENCES THAT THE ASSESSEE WAS OPERATING THE SO - CALLED BANK ACCOUNT. SIMILARLY, AN AMOUNT OF 6 LACS WAS DIRECTLY PAID BY THE COMPANY ARLPL ON BEHALF OF THE ASSESSEE FOR THE INVESTMENTS IN THE IMPUGNED PROPERTY. ITA NOS.171/AHD/2016 AND 3 OTHERS ASSTT. YEAR 2011 - 12 9 V. THE ASSESSEE HAS ALSO RECEIVED PROFESSIONAL FEES AMOUNTING TO 11,27,778/ - , 1,29,69,664/ - AND 1,08,49,440/ - IN THE ASSESSMENT YEAR 20 08 - 09, 2009 - 10 AND 2010 - 11. THUS, THE CONTENTION OF THE ASSESSEE THAT THERE WAS NO WRITTEN AGREEMENT WITH THE COMPANY DOES NOT HAVE MUCH FORCE IN THE GIVEN FACTS AND CIRCUMSTANCES. VI. THE ASSESSEE HAS SIGNED VARIOUS PAPERS FOR RTGS/NEFT ON NUMEROUS OCCASION WHICH PROVES THAT THE ASSESSEE WAS VERY WELL AWARE OF THE MODUS OPERANDI AND THE TRANSACTIONS CARRIED OUT IN THE BANK ACCOUNT. THUS THE CONTENTION OF THE ASSESSEE THAT THE DEPOSIT SLIPS WERE SIGNED BY THE OTHER PARTIES HAS NO RELEVANCE WHICH IS OTHERWISE ALSO A NORMAL PRACTICE. SIMILARLY, AT THE TIME OF WITHDRAWAL OF CASH FROM THE BANK THE PERSON COLLECTING THE CASH IS REQUIRED TO SIGN ON THE REVERSE SIDE OF THE CHEQUE WHICH IS ALSO A NORMAL PRACTICE. SIMILARLY, THE ACCOUNT OPENING FORM WAS SIGNED BY THE A SSESSEE HIMSELF AND THEREFORE DEPOSIT OF THE CHEQUE/CASH IN THE BANK ACCOUNT BY A 3 RD PERSON DOES NOT BRING ANY MATERIAL CHANGE. VII. AS THE ASSESSEE WAS OPERATING THE BANK ACCOUNT THROUGH A RELIABLE PERSON WHICH WAS ALSO USED FOR THE PERSONAL INVESTMENT OF THE ASSESSEE. THUS THE PAYMENT MADE TO THE COMMISSION ER OF CUSTOM ON BEHALF OF SEQUEL PHARMACHEM PVT. LTD. AND PAYMENT MADE TO M/S VASUNDRA ENTERPRISE HAVING COMMON DIRECTORS DOES NOT REQUIRE ANY NEGATIVE COMMENTS. VIII. THE CONTENTION OF THE ASSESSEE THAT HE HAS NOT SIGNED THE RTGS/NEFT R EQUEST DOES NOT APPEAR TO BE OF ANY VALUE AS HE HAS NOT TAKEN ANY ACTION AGAINST THE COMPANY/DIRECTOR /BANK. 7.2 IN VIEW OF THE ABOVE THE AO IN THE REMAND REPORT SUBMITTED THAT THE IMPUGNED RECEIPT OF 1.55 CRORES REPRESENTS THE PROFESSIONAL FEE RECEIVED BY THE ASSESSEE AND THEREFORE THE SAME IS LIABLE TO TAX IN HIS HANDS. ITA NOS.171/AHD/2016 AND 3 OTHERS ASSTT. YEAR 2011 - 12 10 7.3 THE ASSESSEE VIDE LETTER DATED 16 NOVEMBER 2015, FILED THE REJOINDER WHERE THE SIMILAR CONTENTIONS WERE RAISED BEFORE THE LEARNED CIT (A). 7.4 HOWEVER THE LEARNED CIT (A) CONFIRMED THE ORDER OF THE AO BY OBSERVING AS UNDER: THE AO HAS MADE DETAILED INQUIREIES IN THIS REGARD WHICH CLEARLY SHOWS THAT THE ASSESSEE HAS RECEIVED THE PROFESSIONS FEES FROM A CCUTEST RESEARCH LABORATORIES PVT. LTD. THROUGH UNDISCLOSED BANK ACCOUNT. INQUIRIES WITH REGARD TO THIS UNDISCLOSED BANK ACCOUNT REVEALS THAT THE ASSESSEE HAS USE D THESE ACCOUNTS FOR MAKING PAYMENTS TOWARDS INVESTMENT IN IMMOVABLE PROPERTIES. THIS CLEARLY ESTABLISHES THAT THE ASSESSEE WAS IN FULL KNOWLEDGE OF THESE ACCOUNT AND DEPOSITS MADE IN THESE ACCOUNTS. WHEN THE ASSESSEE WAS CONFRONTED WITH THE RESULTS OF THE SE INQUIRIES HE ADMITTED THE RECEIPT OF THE PROFESSIONAL FEES AND OFFERED THE SAME AS HIS INCOME FOR THE A.Y. 2011 - 12. THE CONTENTION OF THE APPELLANT THAT THE COMPANY HAS PLAYED A DEVIOUS ROLE AND FROM ALL THESE TRANSACTIONS ONLY THE COMPANY GOT BENEFITED NOT THE ASSESSEE, IS DEVOID OF ANY MERIT. THE COPIES OF E - MAILS FURNISHED BY THE APPELLANT ARE NOT SUFFICIENT TO PROVE THAT THE COMPANY HAS APPOINTED THE NEW COUNSEL TO REPRESENT HIM AND DRAFTED THE NEW AFFIDAVIT TO SUIT REQUIREMENT OF THE COMPANY. THE DO CUMENTS PRODUCED SHOWS THAT THE ASSESSEE IS CLOSELY RELATED WITH THE COMPANY AND SHARES EACH AND EVERYTHING WITH THE COMPANY. THE ASSESSEE HIMSELF SIGNED BOTH THE LETTER OF AUTHORITY THEN HOW THE COMPANY HAS APPOINTED NEW COUNSEL. SIMILARLY BOTH THE AFFID AVITS WERE DULY SIGNED BY THE ASSESSEE AND NOBODY ELSE HAS FILED AFFIDAVIT ON HIS BEHALF. THERE IS NO FORCE IN THE CONTENSION OF THE APPELLANT THAT HE DID NOT OPERATE THE ACCOUNT NO.2470 WITH JAN KALYAN SAHAKARI BANK LTD. AS THE INQUIRIES MADE BY THE A.O. CLEARLY PROVES THAT THE ASSESSEE HAD MADE PAYMENTS FOR IMMOVABLE PROPERTIES OUT OF THIS BANK ACCOUNT. IT IS ALSO IMPORTANT TO MENTION THAT THE ASSESSEE HAS RECEIVED PROFESSIONAL FEES OF RS.11,27,778/ - AND RS.1,29,69,664/ - IN THE A.Y.2008 - 09 AND 2009 - 10 RES PECTIVELY FROM ACCUTEST RESEARCH LABORATORIES PVT. LTD. WHICH HAD NOT BEEN OFFERED FOR TAXATION. IN THE REMAND REPORT THE AO HAD DEALT WITH THE ARGUMENTS OF THE APPELLANT IN DETAIL. CONSIDERTING THE FACTS I AM IN AGREEMENT WITH THE VIEW OF THE ASSESSING OFFICER. THEREFORE, THE GROUND RAISED BY THE APPELLANT IS DISMISSED. 8. BEING AGGRIEVED BY THE ORDER OF THE LEARNED CIT (A) THE ASSESSEE IS IN APPEAL BEFORE US. 9. THE LEARNED AR BEFORE US FILED A PAPER BOOK RUNNING FROM PAGES 1 TO 284 AND SUBMITTED THA T THE ASSESS EE HAS NOT RENDERED ANY SERVICE TO THE COMPANY AND SIMILARLY HE HAS NOT RECEIVED ANY PROFESSIONAL FEE FROM THE COMPANY. THE BENEFIT OF TDS WAS ALSO NOT CLAIMED BY THE ASSESSEE. FURTHERMORE, THE LEARNED AR CONTENDED THAT THE TDS CERTIFICATES OF THE EARLIER YEARS WERE FABRICATED AND THIS FACT WAS BROUGHT TO THE NOTICE OF THE AO WHO HAS NOT TAKEN A NOTE OF THE SAME. THE LEARNED ITA NOS.171/AHD/2016 AND 3 OTHERS ASSTT. YEAR 2011 - 12 11 AR REITERATED THE CONTENTIONS MADE IN THE RESPECTIVE ORDERS OF AUTHORITIES BELOW WHICH HAVE BEEN ADVERTED IN THE PRECEDING PARAGRAPH. THEREFORE, WE ARE NOT INCLINED TO REPEAT THE SAME FOR THE SAKE OF BREVITY AND CONVENIENCE. 10. ON THE OTHER HAND THE LEARNED DR BEFORE US SUBMITTED THAT THE ADDITION WAS MADE BY THE AO AFTER MAKING NECESSARY VERIFICATION FROM THE COMPANY AND BANK REGARDING RECEIPT WHICH WAS NOT DISCLOSED IN THE INCOME TAX RETURN. THE ASSESSEE WAS MAINTAINING SEVERAL BANK ACCOUNTS WHICH WERE NOT DISCLOSED IN THE INCOME TAX RETURN. THE ASSESSEE HAS ALSO ADMITTED IN THE REVISED AFFIDAVIT TO HAVE EARNED SUCH PROFESSIONAL RECEIPTS FROM THE COMPANY. LIKEWISE, THE ASSESSEE HAS ALSO MADE INVESTMENTS IN THE PROPERTIES OUT OF THE PROFESSIONAL RECEIPT FROM THE COMPANY. THEREFORE IT CANNOT BE SAID THAT THE TRANSACTION SHOWN BY THE COMPANY WAS BOGUS IN NATU RE. 11. THE ASSESSEE INITIALLY HAS NOT FILED ANY COMPLAINT IN THE COURT OF LAW BUT THE SAME WAS FILED ONCE THE PROCEEDINGS UNDER SECTION 147 WERE INITIATED AGAINST HIM ON ACCOUNT OF ESCAPEMENT OF INCOME FOR EARLIER YEARS . AS SUCH COMPLAINT FILED BY THE A SSESSEE IN THE YEAR 2016 IS AFTERTHOUGHT TO AVOID THE PAYMENT OF TAX ON THE INCOME RECEIVED BY HIM. THE LEARNED DR VEHEMENTLY SUPPORTED THE STAND OF THE AUTHORITIES BELOW BY REITERATING THE FINDINGS CONTAINED IN THEIR RESPECTIVE ORDERS WHICH HAVE BEEN ADVE RTED IN THE PRECEDING PARAGRAPH. THEREFORE, WE ARE NOT INCLINED TO REPEAT THE SAME FOR THE SAKE OF BREVITY AND CONVENIENCE. 12. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE CONTROVERSY BEFORE US RIGMAROLES WHETHER THE AMOUNT OF 1.55 CRORES REPRESENTS THE INCOME OF THE ASSESSEE WHICH WAS NOT DISCLOSED IN THE INCOME TAX R ETURN. THE UNDISPUTED FACT THAT THE COMPANY ARLPL HAS CLAIMED PROFESSIONAL CHARGES OF 1.55 CRORES IN ITS IN PROFIT AND LOSS AFTER DEDUCTING THE TDS UNDER SECTION 194J OF THE ACT IN THE NAME OF THE ASSESSEE, WHO IS A QUALIFIED DOCTOR. THIS FACT WAS ALSO RE FLECTED IN THE FORM 26AS GENERATED BY THE INCOME TAX DEPARTMENT. OUT OF A SUM OF 1.55 CRORES, A SUM OF 1.29 CRORES WAS ITA NOS.171/AHD/2016 AND 3 OTHERS ASSTT. YEAR 2011 - 12 12 CREDITED IN THE BANK ACCOUNT OF THE ASSESSEE AND 6 LAKH WAS DIRECTLY PAID TO BUILDER ON BEHALF OF ASSESSEE . SUCH, PROFESSIONAL FEES WAS ALSO RECEIVED BY THE ASSESSEE IN THE EARLIER ASSESSMENT YEARS AS DETAILED BELOW: ASSESSMENT YEAR 2008 - 09 11,27,778/ - ASSESSMENT YEAR 2009 - 10 1,29,69.664/ - ASSESSMENT YEAR 2010 - 11 1,08,49,440/ - 12.1 ALL THE FACTS OF THE CASE, THE SUBMISSIO N OF THE ASSESSEE AND THE ALLEGATION OF THE REVENUE HAVE BEEN DULY ELABORATED IN THE PRECEDING PARAGRAPH. THEREFORE, FOR THE SAKE OF BREVITY AND CONVENIENCE, WE ARE NOT INCLINED TO REPEAT THE SAME. 12.2 AMONG OTHER THINGS, WHAT WE FIND, A CRUCIAL FACT WH ICH REQUIRES TO BE CONSIDERED I.E. THERE WERE CERTAIN WITHDRAWALS FROM THE BANK ACCOUNT OF THE ASSESSEE AS DETAILED BELOW: VASUNDHARA ENTERPRISE 30 LACS DR. SANTOSH JODHI 14 LACS SEQUEAL PHARMA 32.87 LACS CASH WITHDRAWALS 24.05 LACS 12.3 IT WAS POINTED OUT BY THE LEARNED AR THAT THE AFORESAID PARTIES ARE THE ASSOCIATED CONCERN OF THE COMPANY, ARLPL. THEREFORE, THE MONEY WHICH HAS BEEN WITHDRAWN FROM THE BANK THROUGH CHEQUE/ CASH OUT OF THE MONEY RECEIVED FROM THE COMPANY HAS GONE BACK TO T HE ASSOCIATED CONCERN OF THE COMPANY. HOWEVER, WE FIND THAT THE AO HAS NOT MADE ANY COMMENT ON SUCH CONTENTION OF THE ASSESSEE I.E. CASH WITHDRAWAL AND PAYMENT TO SHRI SANTOSH JOSHI IN THE REMAND REPORT. 12.4 FURTHER T HE COMMENTS OF THE AO FOR THE PAYMEN T MADE TO M/S SEQUEL PHARMACHEM PVT. LTD AND M/S VASUNDHRA ENTERPRISE DO NOT PUT ANY LIGHT IN THE REMAND REPORT WHICH READS AS UNDER: 8. CHEQUES ISSUED TO PREPARE DDS IN FAVOR OF COMMISSIONER OF CUSTOMS NHAVE SHEVA A/C SEQUEL PHARMACHEM PVT. LTD. NO. CO MMENTS AS THE MOTIVE BEHIND THIS IS NOT CLEAR AND POSSIBILITIES OF INVOLVEMENT OF ASSESSEE CANNTO BE RULED OUT AS MENTIONED IN POINT NO.6 ABOVE. 9. A LARGE AMOUNT, 30 LACS TRANSACTION CREDITED TO VASUNDRA ENTERPRISES HAVING COMMON DIRECTOR WITH M/S SEQUEL PHARMACHEM - NO COMMENTS AS THE MOTIVE BEHIND THIS IS ITA NOS.171/AHD/2016 AND 3 OTHERS ASSTT. YEAR 2011 - 12 13 NOT CLEAR AND POSSIBILITY OF INVOLVEMENT OF ASSESSEE CANNOT BE RULED OUT AS MENTIONED IN POINT NO.6 ABOVE. 12. 5 IN THE BACKDROP OF ABOVE FACTS AND CIRCUMSTANCES WE ARE OF THE VIEW THAT THE ENTIRE FLOW OF TRANSACTIONS AS DISCUSSED ABOVE SHOULD HAVE BEEN SEEN IN SUBSTANCE OVER THE FORM. IN TAX MATTERS, THE FORM IS NOT ALWAYS CONCLUSIVE. THERE ARE CASES WHERE THE SUBST ANCE MUST BE LOOKED AT IN ORDER TO ASCERTAIN THE REAL NATURE OF THE TRANSACTION. TO FIND OUT THE SUBSTANCE, IT IS PERMISSIBLE TO PIERCE THE CORPORATE VEIL. THE AO HAD POWER, IN FACT, A DUTY WAS CAST ON HIM TO LIFT THE VEIL AND FIND OUT THE TRUE NATURE OF E ACH TRANSACTION IN THE SERIES OF TRANSACTIONS OF THIS NATURE. A COLOURABLE DEVICE IS NOT AN INSTRUMENT OR A SPECIFIC DOCUMENT BUT IT IS WHOLE SET OR SERIES OF TRANSACTIO N WHICH CREATE IN A WAY TO GIVE DIFFERENT IMPRESSION WHEN LOOKED AT ITS FORM ALONE OR S EEN FROM RESULT THEY CREATE, BUT WHEN IT IS LOOKED THROUGH AND THE SUBSTANCE OF THE TRANSACTION IS BROUGHT INTO LIMELIGHT AND SUCH SUBSTANCE OF THE TRANSACTION CLEARLY INDICATES AN INTENTION OF TAX EVASION AS WELL AS MANIPULATION, DODGING OR EVEN FRAUD, SU CH DEVICE HAD TO BE IGNORED AND THE EFFECT COMING OUT OF THE SUBSTANCE HAS TO BE APPLIED FOR WORKING OUT TAXABLE INCOME. 12. 6 IT MAY BE TRUE THAT THE ASSESSEE CAN NOW TAKE A STAND THAT SUBSTANCE OVER FORM IS TO BE CONSIDERED BUT WHAT IS IMPORTANT IS THAT THE ASSESSEE AT THE FIRST INSTANCE HAD A DUTY TO GIVE PROPER AND CORRECT DETAILS. IT MIGHT BE SAID THAT THE ASSESSEE FAILED IN DOING SO. BE THAT AS IT MAY, WHAT IS REQUIRED ON THE PART OF THE ASSESSING OFFICER IS NOT TO GO MECHANICALLY BY THE DETAILS DISCL OSED BY THE ASSESSEE IN THE STATUTORY FORM AND OR FOR THAT MATTER SIGNED AND CERTIFIED BY THE COMPANY. 12. 7 THE ASSESSING OFFICER BEING CAST WITH A STATUTORY DUTY TO CARRY OUT NECESSARY ENQUIRY IS REQUIRED TO TEST THE CORRECTNESS OF THE DISCLOSURE MADE I N SUCH STATUTORY FORMS . THIS IS WHY THE CONCEPT OF SUBSTANCE OVER FORM WAS ALWAYS PR EFERRED BY COURTS WHILE DEALING WITH SUCH MATTERS. 12.8 IN THIS BACKGROUND , WE ALSO FIND THAT THE INCOME TAX DEPARTMENT HAS INTRODUCED GAAR IN THIS SCENARIO WHICH HAS CONSIDERED THE SUBSTANCE OVER FORM. ITA NOS.171/AHD/2016 AND 3 OTHERS ASSTT. YEAR 2011 - 12 14 THE EXPLANATORY MEMORANDUM TO THE FINANCE BILL, 2012, SPECIFIED THAT THERE IS A NEED FOR STATUTORY PROVISIONS TO CODIFY THE DOCTRINE OF ' SUBSTANCE OVER FORM ' WHERE THE REAL INTENTION OF THE PARTIES AND EFFECT O F TRANSACTIONS AND PURPOSE OF AN ARRANGEMENT IS TAKEN INTO ACCOUNT FOR DETERMINING THE TAX CONSEQUENCES, IRRESPECTIVE OF THE LEGAL STRUCTURE THAT HAS BEEN SUPER IMPOSED TO CAMOUFLAGE THE REAL INTENT AND PURPOSE. 12. 9 IN THE LIGHT OF THE ABOVE DISCUSSION WE FIND THAT T HERE ARE OTHER FACTUAL ASPECTS AS CONTENDED BY THE ASSESSEE BEFORE THE AUTHORITIES BELOW WHICH REQUIRES TO LOOK AT THE TRANSACTIONS IN SUBSTANCE OVER THE FORM AS DETAILED UNDER: I. IT IS PERTINENT TO NOTE THAT THE ASSESSEE IS A FULL - TIME EMPLOYEE IN A COMPANY KNOWN AS IPCA LABORATORIES LTD AND DRAWING A HANDSOME SALARY THEREFROM. AS SUCH THE ASSESSEE IS NOT ENGAGED IN ANY BUSINESS / PROFESSIONAL ACTIVITY. II. THERE WAS NO WRITTEN/FORMAL AGREEMENT WITH THE COMPANY FOR PROVIDING THE ALLEGED PROFESSIONAL SERVICES. GENERALLY IN THE CORPORATE WORLD, IT IS NECESSARY TO HAVE THE WRITTEN/ FORMAL AGREEMENT WHICH SPECIFIES THE SERVICES TO BE RENDERED, TERMS OF PAYMENT, D UTIES/ RESPONSIBILITIES OF THE PARTIES, THE MANNER OF ARBITRATION IN CASE DISPUTES AND SECRECY OF THE WORK ETC. BUT IN THE PRESENT CASE THE SAME IS MISSING WHICH CREATES A DOUBT, PARTICULARLY IN A SITUATION WHERE THE COMPANY IS INCURRING HUGE COST AND SHAR ING THE SECRETS OF ITS BUSINESS WITHOUT ANY LEGAL BINDING. III. AS THE ASSESSEE WA S NOT ENGAGED IN ANY BUSINESS / PROFESSIONAL ACTIVITY, A CCORDINGLY, THERE WAS NO OCCASION/REASON FOR THE ASSESSEE TO MAKE THE PAYMENT FOR THE CUSTOM DUTY ON BEHALF OF M/S SEQU EL PHRAMACHEM PVT. LTD. ITA NOS.171/AHD/2016 AND 3 OTHERS ASSTT. YEAR 2011 - 12 15 IV. THERE WAS THE PAYMENT MADE BY THE ASSESSEE TO M/S VASUNDHRA ENTERPRISES AMOUNTING TO RS. 30 LACS AND IT WAS THE CONTENTION OF THE ASSESSEE THAT THIS COMPANY WAS ASSOCIATE OF THE COMPANY I.E. ARLPL AND THEREFORE SUCH AMOUNT HAS GON E BACK TO THE COMPANY. V. IT WAS CONTENDED BY THE ASSESSEE THAT A SUM OF 14 LACS HAS BEEN WITHDRAWN BY THE DIRECTOR OF THE COMPANY DR. SANTOSH JOSHI. VI. IT WAS FURTHER CONTENDED BY THE ASSESSEE THAT ALL THE WITHDRAWALS THROUGH CHEQUE/ CASH WERE WITHDRAWN BY THE COMPANY ONLY. BUT THE AO IS SILENT ON THIS CONTENTION OF THE ASSESSEE. VII. IT WAS ALSO POINTED OUT BY THE ASSESSEE THAT HE ( ASSESSEE ) IS NOT THE SUBJECT EXPERT FOR THE ALLEGED SERVICES RENDERED TO THE COMPANY. IT WAS SUBMITTED AS UNDER: AS PER ACCUTEST, THE NATURE OF SERVICES WERE RELATED TO THE INTERPRETATION OF IN - VITRO DATA AND ITS EXTRAPOLATION TO FIND OUT SUITABILITY OF INVESTIGATIONAL PRODUCTS TO UNDERGO IN - VIVO - BIO - AVAILABILITY AND BIO - EQUIVALENCE STUDIES. NO. WAY THIS INTERPRETATION IS THE NEED TO ACCUTEST AS THEY ARE RESPONSIBLE ONLY TO CONDUCT THE STUDIES AS A SERVICE PROVIDER. HENCE, QUESTION OF TAKING MY SERVICES AND MAKING PAYMENTS BY ACCUTEST DOES NOT ARISE AT ALL. M/S ACCUTEST IN ONLY A SERVICE INDUSTRY/PROVIDER, CHARGE FEE FOR SERVICES TO CONDUCT THE STUDIES FOR VARIOUS OUTSIDE CUSTOMER/COMPANIES AND PROVIDE THE RESULTS AND REPORT, MEANS THEY ARE WORKING FOR OTHER CLIENTS. THEREFORE, OPINION IF ALL IS REQUIRED AND SOUGHT IS N OT UNDER THEIR PERVIEW AND SCOPE OF STUDY/WORK. HENCE, QUESTION OF HIRING EXPERTS AND MAKING PAYMENT TO THEM BY ACCUTEST DOES NOT ARISE AT ALL IF NEED BE, THIS IS THE REQUIREMENT OF CLIENTS WHO ARE DEVELOPING THE FORMULATION FOR SUCCESSFUL TRAIL RESULTS T O HIRE EXPERTS AT THEIR END DURING THE COURSE OF PRODUCT DEVELOPMENT AND MUCH BEFORE FINALIZING SAMPLES FOR CONDUCTING CLINICAL TRIALS AT ACCUTEST OR ANY OTHER CRO, NOT AFTER SUBMITTING THE SAMPLES TO CONDUCT THE TRIALS. ACCORDINGLY, PAYMENTS SHALL ALSO BE MADE BY FORMULATOR/CLIENT AND NOT BY ACCUTEST/OTHER CRO HIMSELF. THEREFORE, THE TRANSACTIONS SHOWN ARE NOT GENUINE AND ONLY THE BOOK ENTRIES. VIII. THE ASSESSEE HAS NOT RAISED ANY BILL TO THE COMPANY. AS SUCH THE COMPANY HAS SELF - GENERATED THE BILL TO SUIT IT S REQUIREMENT. THESE BILLS DO NOT CONTAIN ADDRESS, PAN, TELEPHONE NOS., DESCRIPTION OF SERVICES AS WELL AS SIGNATURE AND STAMP ON SUCH BILLS. THIS FACT CAN BE VERIFIED FROM THE COP IES OF THE BILLS PLACED ON RECORD IN THE PAPER BOOK. ITA NOS.171/AHD/2016 AND 3 OTHERS ASSTT. YEAR 2011 - 12 16 IX. THE IMPUGNED SAVING B ANK ACCOUNT WAS IN OPERATION FOR VERY SHORT SPAN OF TIME I.E. FROM 22 ND APRIL 2010 TO 9 TH SEPTEMBER 2010, ONLY FOR LESS THAN 6 MONTHS . HAD THE ASSESSEE BEEN INTO ANY BUSINESS/ PROFESSIONAL ACTIVITY, THERE WOULD HAVE BEEN CURRENT ACCOUNT AND THE SAME SHOULD NOT HAVE BEEN CLOSED IN SUCH A SHORT PERIOD OF TIME. AS SUCH THE ACT OF THE ASSESSEE IS VERY UNUSUAL IN THE CORPORATE WORLD. X. THE BANK ACCOUNT WHERE THE MONEY WAS RECEIVED BY THE ASSESSEE WAS IN THE SAME BANK WHERE THE COMPANY, ARLPL WAS ALSO MAINTAINING ITS BANK ACCOUNT . 12. 10 FROM THE ABOVE CONTENDING FACTS WHAT IS SUGGESTED THAT THE FLOW OF TRANSACTIONS ARE NOT FREE FROM THE DOUBT AND SUSPICION AND REQUIRES DETAILED INVESTIGATION. IN OUR CONSIDERED VIEW, IT WAS THE DUTY OF THE REVENUE TO VERIFY FROM THE COMPANIES I.E. SEQUEL PHRAMACHEM PVT. LTD. AND M/S VASUNDHRA ENTERPRISES AND THE DIRECTOR OF THE COMPANY, ARLPL ABOUT THE PAYMENT RECEIVED FROM THE ASSESSEE WHETHER IT WAS LOAN, INCOME OR INVESTMENT INCLUDING OTHER FACTS ETC. AS DISCUSSE D ABOVE. BUT NONE OF THE AUTHORITIES BELOW HAS DONE ANY EXERCISE DESPITE HAVING POWER UNDER SECTION 131/133(6) OF THE ACT. 13. MOVING FURTHER, WE ALSO FIND THAT THE COMPANY (ARLPL) HAS CLAIMED TO HAVE MADE PAYMENT TO THE ASSESSEE FOR A SUM OF RS. 11, 27,778, RS, 1,29,69,664/ - AND RS.1,08,49,444/ - IN A.Y. 2008 - 09, 2009 - 10 AND 2010 - 11 AFTER DEDUCTING TDS OF 28,26,685 FOR ALL THREE YEARS I.E. AGGREGATING A SUM OF RS. 2,21,20,201/ - BEGINNING FROM THE PERIOD OF 1 ST AUGUST 2007 TO 19 TH SEPTEMBER 2009 THROUG H BANKING CHANNEL. AS SUCH THE UNDISCLOSED BANK ACCOUNT I.E. STATE BANK OF MYSORE IN WHICH THESE AMOUNT WERE CLAIMED TO BE DEPOSITED WAS OPENED DATED 23 RD AUGUST 2008 AND ONLY AN AGGREGATE OF RS. 1,30,00,000/ - ONLY WAS DEPOSITED IN IMPUNGED BANK ACCOUNT TI LL THE CLOSURE. THE QUESTION ARISES HOW THE PAYMENT WAS MADE BEFORE 23 RD AUGUST 2008 I.E. BEFORE THE OPENING OF THE BANK ACCOUNT AND IN WHICH BANK ACCOUNT OF ASSESSEE. LIKEWISE HOW THE BALANCE PAYMENT OF RS. 91,20,201.00 ( RS. ITA NOS.171/AHD/2016 AND 3 OTHERS ASSTT. YEAR 2011 - 12 17 2,21,20201 1,30,00,000.00) WAS MADE AND IN WHICH BANK ACCOUNT OF THE ASSESSEE BY THE COMPANY, ARLPL. THE RELEVANT COPIES OF THE LEDGERS ARE PLACED ON PAGES 99 TO 103 OF THE PAPER BOOK WHICH ARE SHOWING THE AMOUNT PAID TO THE ASSESSEE. IN THIS RESPECT WE DID NOT FIND ANY FINDING OR D ETAIL FROM THE ORDER OF THE AUTHORITIES BELOW. 13.1 FURTHER IN ALL THE THREE PREVIOUS YEARS ALSO ASSESSEE CLAIMED THAT THE AMOUNT RECEIVED IN STATE BANK OF MYSORE GOT TRANSFERRED TO ARLPL AND ITS ASSOCIATE ACCOUNTS. THE RELEVANT DETAILS OF RECEIPT AND PA YMENT OF RS. 1,30,0000.00 ARE PLACED ON PAGES 6 & 7 OF PAPER BOOK II FOR AY 2009 - 10 AND PAGE 7 OF PAPER BOOK - 1 FOR THE AY 2009 - 10. THE RELEVANT DETAILS FOR READY REFERENCE STAND AS UNDER: DETAILS OF THE RECEIPT OF RS. 1,30,00000 SR.NO. DATE AMOUNT EXPLANATION 1. 23/08/2008 1000 CASH DEPOSITED IN THE BANK AND IN THE SLIP, THE HANDLING IS NOT OF THE ASSESSEE. 2. 18/09/2008 10,00,000 CHEQUE NO 342562 FROM THE SHAMRAO VITHAL CO - OP BANK - ON THE SLIP SIGNATURE OF DEPOSITOR IS MENTIONED WHICH IS NOT OF THE ASSESSEE. 3. 16/10/2008 15,50,000 CHEQUE NO 287628 DATED 15/10/2008 OF AXIS BANK LTD. 4. 16/10/2008 2,50,000 CHEQUE NO.828823 OF HDFC BANK LTD DATED 13/10/2008 5. 18/10/2008 1,00,000 CASH DEPOSITED ON THE SLIP ILLEGIBLE SIGNATURE OF THE DEPOSITOR BUT NOT OF THE ASSESSEE 6. 08/12/2008 15,00,000 RTGS BY ACCUTEST 7. 19/01/2009 14,00,000 CHEQUE NO354571 OF SHARMRAO VITHAL CO - OP BANK - THE SIGNATURE ON THE SLIP IS NOT OF THE ASSESSEE 8. 04/02/2009 6,00,000 CASH DEPOSITED SIGNATURE ON THE SLIP IS NOT OF THE ASSESSEE 9. 25/02 /2009 18,00,000 CHEQUE NO 036939 OF JANKALYAN BANK SIGNATURE ON THE SLIP IS NOT OF THE ASSESSEE OF THE ASSESSEE. 10. 07/03/2009 13,00,000 CHEQUE NO037071 OF JANKALYAN BANK SIGNATURE ON THE SLIP IS NOT OF THE ASSESSEE OF THE ASSESSEE. 11. 25/03/2009 25,00,000 CHEQUE NO037551 OF JANKALYAN BANK SIGN ATURE ON THE SLIP IS NOT OF THE ASSESSEE OF THE ASSESSEE ITA NOS.171/AHD/2016 AND 3 OTHERS ASSTT. YEAR 2011 - 12 18 12. 25/03/2009 10,00,000 CHEQUE NO 037552 OF JANKALYAN BANK SIGNATURE ON THE SLIP IS NOT OF THE ASSESSEE OF THE ASSESSEE TOTAL 1,30,01,000 DETAILS OF THE PAYMENT OF RS. 1,30,00000 DATE CHEQUE NO. AMOUNT NAME OF RECIPIENT/BENEFICIARIES OF PROFESSIONAL FEES - COMPANY AND ITS ASSOCIATE THEMSELVES 22.09.08 712001 1000000 VASTU NIRMAN CORPORATION - MOHAN K. KADAM 22.10.08 712002 1900000 ACCUTEST RESEARCH LAB. - ACCOUNT WITH OBC, SATELLITE BRANCH, AHMEDABAD 10.12.08 712003 1500000 VASTU NIRMAN CORPORATION - WLOHAN K. KADAM U 21.01.09 712004 600000 CASH - ON THE BACK SIDE OF THE CHEQUE, SIGNATURE OF THE ASSESSEE FORGED 22.01.09 712005 800000 CASH - ON THE BACK SIDE OF THE CHEQUE, SIGNATURE OF THE ASSESSEE FORGED 07.02.09 712006 6 0000 SANTOSH SHRIKRISHNA JOSHI - DIRECTOR OF ACCUTEST 27.02. 09 712009 500000 DR. SANTOSH JOSHI - DIRECTOR OF ACCUTEST 27.02.19 712008 1000000 DR. SANTOSH JOSHI - DIRECTOR OF ACCUTEST 04.03.09 712007 300000 DR. SATISH SAWANT - DIRECTOR OF ACCUTEST 13.03.09 712012 450000 DR. SATISH SAWANT - DIRECTOR OF ACCUTEST 14.03.09 712011 450000 DR. SANTOSH JOSHI - DIRECTOR OF ACCUTEST 17.03.09 712014 200000 DR. SATISH SAWANT - DIRECTOR OF ACCUTEST 18.03.09 712015 200000 SANKALP ENTERPRISE - ASSOCIATE COMPANY DIRECTOR 30.03.09 712017 1000000 DR. SATISH SAWANT - DIRECTOR OF ACCUTEST 30.03.09 712016 2500000 DR. SANTOSH JOSHI - DIRECTOR OF ACCUTEST TOTAL : 13000000 ITA NOS.171/AHD/2016 AND 3 OTHERS ASSTT. YEAR 2011 - 12 19 13.2 THUS IN THE ABSENCE OF ANY FINDING OF THE REVENUE, THE CONTENTION OF THE ASSESSEE THAT HE HAS NOT RECEIVED ANY MONEY FROM THE COMPANY APPEARS TO BE CORRECT IN THE GIVEN FACTS AND CIRCUMSTANCES FOR THE SIMPLE REASON THAT THERE IS NO FINDING OF THE AUTHORITI ES BELOW. 13.3 IT IS ALSO IMPORTANT TO NOTE THAT THE ASSESSEE HAS RAISED A QUESTION ON VALIDITY OF TDS CERTIFICATE SUBMITTED BY THE COMPANY ALPL FOR A.Y. 2008 - 09 TO A.Y. 2010 - 11. AS SUCH ON TDS CERTIFICATE, THE PAN AND ADDRESS OF THE ASSESSEE WAS NOT ME NTIONED. FURTHER THE ASSESSEE NAME WRITTEN ON THE CERTIFICATE APPEARS TO BE REWRITTEN WHICH CREATES A DOUBT, BUT THE AO BRUSHED ASIDE THE ASSESSEE S CONTENTION BY HOLDING THAT THE SAME IS THE MATTER OF FORENSIC INVESTIGATION. 13.4 IT IS ALSO SIGNIFICAN T TO NOTE THAT THE AO IN ASSESSMENT ORDER HAS GIVEN FINDING THAT ASSESSEE DURING THE ASSESSMENT PROCEEDING OF A.Y. 2009 - 10 HAS ACKNOWLEDGED THAT HE HAS ACCEPTED LOAN OF RS. 22.5 LAKH FROM ARLPL FOR THE PURPOSE OF MAKING INVESTMENT IN PROPERTIES. BUT THERE WAS NO DETAIL OF SUCH LOAN REPAYMENT WAS FUR NISHED BY THE ASSESSEE. 13.5 ADMITTEDLY ALL THE FACTS AS DISCUSSED ABOVE WERE IMPORTANT TO DETERMINE THE TAXABLE INCOME OF THE ASSESSEE BUT THE REVENUE HAS NOT LOOKED INTO ALL THESE FACTS. 13.6 WITHOUT PREJU DICE TO THE ABOVE, THE ASSESSEE IN THE YEAR UNDER CONSIDERATION HAS BEEN ALLEGED BY THE REVENUE TO HAVE RECEIVED AN INCOME OF 1.55 CRORES. IF THE CONTENTION OF THE REVENUE IS ASSUMED CORRECT THEN THE SAME SHOULD BE AVAILABLE WITH THE ASSESSEE IN THE FORM OF INVESTMENTS/CASH IN HAND/BANK BALANCE OR THE ASSESSEE MUST HAVE INCURRED SUCH INCOME BY INCURRING T HE EXPENSES. BUT NO SUCH DETAIL HAS BEEN BROUGHT ON RECORD BY THE AUTHORITIES BELOW EXCEPT THE INVESTMENT MADE BY THE ASSESSEE IN THE PROPERTIES TO THE TU NE OF 25.50 LACS AND 22.50 OUT OF ITA NOS.171/AHD/2016 AND 3 OTHERS ASSTT. YEAR 2011 - 12 20 THE MONEY RECEIVED FROM THE COMPANY. IT IS ALSO IMPORTANT TO NOTE THAT A SUM OF 6 LACS WAS ALSO DIRECTLY PAID FOR THE INVESTMENT IN PROPERTIES MADE BY THE ASSESSEE BY THE COMPANY ALPL WHICH ALSO EVIDENCES INVESTMENT MADE BY THE ASSESSEE. THUS WE ARE OF THE VIEW THAT TO THE EXTENT OF THE INVESTMENT MADE BY THE ASSESSEE DESERVES TO BE CONFIRMED AS INCOME IN THE HANDS OF THE ASSESSEE I.E. RS. 31.50 LACS FOR THE YEAR UNDER CONSIDERATION AND RS. 22.50 LACS IN THE AY 2009 - 10. 13.7 BEFORE PARTING , ON ANALYSING COMPLETE FLOW OF THE TRANSACTIONS BASED ON DOCUMENTARY EVIDENCE, IT IS SEEMED THAT THE ASSESSEE WAS INVOLVED IN THE MODUS OF OPERANDI, IN CONNIVANCE WITH THE COMPANY. IT IS BECAUSE, THE BANK WAS OPENED IN THE NAME OF THE ASSESSEE AND ALL THE CHEQUES/RTGS/NEFT WERE SIGNED BY HIM. MOREOVER, THE ASSESSEE BEING A QUALIFI ED DOCTOR AND HOLDING THE HIGH POST IN THE ORGANISATION AND DRAWING A SALARY OF 92 LAKHS CANNOT BE SAID THAT HE HAS SIGNED THE CHEQUE BOOKS IN GOOD - FAITH AND THEREFORE THE BANK ACCOUNT WAS MISUSED. THUS ON THE ABOVE FACTUAL POSITION, IT IS TO BE DECIDED WHETHER THE ENTIRE SUM INVOLVED IN THE FRAUDULE NT ACTIVITY CARRIED OUT BY THE ASSESSEE IN CONNIVANCE WITH THE COMPANY WAS TO BE TREATED AS INCOME AND TAXED IN THE ASSESSEE'S HAND. THE PROVISIONS OF SECTION 4 OF THE IT ACT BRINGS TO CHARGE INCOME OF AN ASSESSEE EARNED DURING THE YEAR. IN A CASE WHERE MONEY WHICH HAS BEEN FRAUDULE NTLY SHOWN AS INCOME OF THE ASSESSEE CANNOT CONSTITUTE INCOME CHARGEABLE TO TAX WITHI N THE PROVISIONS OF ACT. IN ORDER TO BRING TO TAX A RECEIPT, AS ALREADY STATED ABOVE, AN ASSESSEE SHOULD HAVE UNFLINCHING RIGHT OF OWNERSHIP AND DISPOSITION, CONTROL AND USER. HERE IN THIS CASE, IT SEEMS THAT EVERYTHING IS BELONGING TO THE COMPANY. IN SUCH A CASE, WE ARE IN AGREEMENT WITH THE CONTENTION OF THE ASSESSEE'S LEARNED COUNSEL THAT IF THE IMPUGNED AMOUNT NEEDS TO BE TAXED THAT WILL AMOUNT TO TAXING AN AMOUNT WHICH BELONGS TO THE OTHER PERSON AND NOT TO THE APPELLANT. 13.8 IT IS ALSO IMPORTANT TO HIGHLIGHT THE FACT THAT THE AO WAS INTIMATED DURING THE ASSESSMENT PROCEEDINGS IN THE AFFIDAVIT DATED 3 RD AUGUST 2013 BY THE ASSESSEE THAT IMPUGNED RECEIPTS DOES NOT BELONG TO HIM. SIMILARLY, THE ASSESSEE ALSO BROUGHT LOT OF FACTS WITH ADDITIONAL EVIDENCES TO THE NOTICE OF THE AO DURING THE REMAND ITA NOS.171/AHD/2016 AND 3 OTHERS ASSTT. YEAR 2011 - 12 21 PROCEEDINGS TO JUSTIFY THAT THE IMPUGNED AMOUNT DOES NOT BELONG TO HIM (THE ASSESSEE) WHICH HAVE BEEN DISCUSSED SOMEWHERE IN THE PRECEDING PARAGRAPH. THUS I N SUCH CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE AO SHOU LD HAVE ALSO ISSUED A NOTICE UNDER SECTION 148 OF THE ACT TO THE COMPANY AND THEREFORE THE ASSESSMENT SHOULD HAVE BEEN MADE ON THE CONCEPT OF SUBSTANTIVE/PROTECTIVE IN THE HANDS OF THE PARTIES INVOLVED. BUT THE AO HAS ISSUED THE NOTICE ONLY TO THE ASSESSEE AND NOT TO THE COMPANY, ARLPL. HOWEVER IT WAS THE WISDOM OF THE AO TO ISSUE THE NOTICE UNDER SECTION 148 OF THE ACT, THEREFORE WE ARE NOT MAKING ANY COMMENT ON IT. AS SUCH WE KEEP THE ISSUE OPEN. 13.9 A QUESTION ALSO ARISES THAT IF THE ADDITION IS DELETED IN THE HANDS OF THE AS SESSEE THEN THE IMPUGNED AMOUNT SHALL GO TAX FREE. IN SIMPLE WORDS, THE COMPANY ARLPL SHALL GET THE DEDUCTION OF THE EXPENSES WHICH WILL NOT TAXED IN THE HANDS OF THE ASSESSEE. THUS THE RE IS THE LOSS OF R EVENUE TO THE GOVERNMENT EXCHEQUER. IN THIS REGARD WE NOTE THAT T HERE ARE PROVISIONS UNDER SECTION 150 OF THE ACT WHICH AUTHORIZES THE AO FOR INITIATING THE PROCEEDINGS UNDER SECTION 148 OF THE ACT AGAINST THE COMPANY WHICH READS AS UNDER: 150. (1) NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 149 , THE NOTICE UNDER SECTION 148 MAY BE ISSUED AT ANY TIME FOR THE PURPOSE OF MAKING AN ASSESSMENT OR REASSESSMENT OR RECOMPUTATION IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR D IRECTION CONTAINED IN AN ORDER PASSED BY ANY AUTHORITY IN ANY PROCEEDING UNDER THIS ACT BY WAY OF APPEAL, REFERENCE OR REVISION OR BY A COURT IN ANY PROCEEDING UNDER ANY OTHER LAW. (2) THE PROVISIONS OF SUB - SECTION (1) SHALL NOT APPLY IN ANY CASE WHERE ANY SUCH ASSESSMENT, REASSESSMENT OR RECOMPUTATION AS IS REFERRED TO IN THAT SUB - SECTION RELATES TO AN ASSESSMENT YEAR IN RESPECT OF WHICH AN ASSESSMENT, REASSESSMENT OR RECOMPUTATION COULD NOT HAVE BEEN MADE AT THE TIME THE ORDER WHICH WAS THE SUBJECT - MATTER OF THE APPEAL, REFERENCE OR REVISION, AS THE CASE MAY BE, WAS MADE BY REASON OF ANY OTHER PROVISION LIMITING THE TIME WITHIN WHICH ANY ACTION FOR ASSESSMENT, REASSESSMENT OR RECOMPUTATION MAY BE TAKEN. 13.10 BUT OUR OBSERVATION AS STATED ABOVE SHOULD NOT BE CONSTRUED AS DIRECTION TO THE AO FOR ISSUING NOTICE UNDER SECTION 148 OF THE ACT. AS SUCH IT IS THE WISDOM OF THE AO TO ISSUE OR NOT TO ISSUE THE NOTICE TO THE COMPANY ARLPL BUT THE SAME SHOULD BE SUBJECT TO THE PROVISIONS OF LAW. ITA NOS.171/AHD/2016 AND 3 OTHERS ASSTT. YEAR 2011 - 12 22 13.11 BEFORE PARTIN G IT IS ALSO IMPO RTANT TO HIGH LIGHT THE FACT A SUIT HAS BEEN FILED BY THE ASSESSEE AGAIN S T THE CO M P AN Y AS EVIDENT FROM THE DOCU M ENTS PLACED ON PAGES 264 - 284 OF PAPER BOOK WHICH IS ON RECORD. THE ACT OF THE ASSESSEE FOR FILING THE SUIT SUPPORTS HIS CASE. A FTER CONSIDERING THE FACTS IN TOTALITY AS DISCUSSED ABOVE, THE ASSESSEE S GROUND OF APPEAL IS PARTLY ALLOWED. 14. THE LEARNED COUNSEL DID NOT PRESS OTHER ISSUES IN THE GROUNDS OF APPEAL. THEREFORE, WE DISMISS THE SAME AS NOT PRESSED. 15. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 16. COMING TO THE ITA NO.2137/AHD/2017 FOR A.Y. 2008 - 09. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THE LEARNED CIT(APPEALS) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE RE - ASSESSMENT PROCEEDING U/S.147 IN AS MUCH AS; A. THAT THE CONDITIONS ENVISAGED UNDER THE ACT ARE NOT FULFILLED IN THE CASE OF APPELLANT. B. THAT THE ORDER WAS INVALID, WITHOUT JURISDICTION, BAD IN LAW BEING AGAINST THE SETTLED PRINCIPLES OF LAW. C. THAT NO SPEAKING ORDER DISPOSING THE OBJECTIONS OF THE APPELLANT HAS BEEN PASSED. 2. WITHOUT PREJUDICE TO THE ABOVE LEGAL GROUNDS, HE HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE ADDITION OF RS.11,27, 778/ - PAID BY THE ACCUTEST RESEARCH LABORATORIES PVT . LTD AS INCOME OF THE ASS ESSEE IN AS MCH AS THAT IT DOES NOT PERAIN TO THE ASSESSEE CONSIDERED IN THE LIGHT OF PRINCIPLES OF LAW ENUNCIATED FOR TAXING REAL INCOME ONLY. 3. HE HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE ADDITION OF RS.11,U /S.271(1)(C) OF THE ACT,778/ - AS INCOME OF THE ASSESSEE IN AS MUCH AS THAT THE EVIDENCE PRODUCED BY THE COMPANY WAS BOGUS, FABRICATED, BASELESS, WITHOUT BASIS , WITHOUT AGREEMENT AND THE ALLEGED AMOUNT IN EFFECT HAS BEEN TAKEN BY THE COMPANY ITSELF THEREBY THE ASSESSEE DISCHARGED THE ONUS LAY ON IT FOR EXPLAINING THE IMPUGNED RECEIPTS ALLEGED TO HAVE BEEN PAID BY THE ACCUTEST RESEARCH LABORATORIES PVT. LTD. 4. HE HAS ERRED IN LAW AND ON FACTS IN NOT CONSIDERING THE FACTS MENTIONED IN THE APPEAL MEMO FILED IN AS MUCH AS THAT NO INVESTIGATION WAS MADE/ORDERED AGAINST THE PAYER COMPANY BY THE A.O. OBSERVING THAT MATTER IS SUBJUDICE BEFORE COURT. 5. HE .HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE AMOUNT OF RS. 11,27,778/ - AS INCOME OF THE ASSESSEE WITHOUT PROPERL Y CONSIDERING AND APPRECIATING THE SUBMISSIONS WITH EVIDENCE MADE BY THE APPELLANT DURING COURSE OF ASSESSMENT PROCEEDING DENYING RENDERING OF SERVICES AND ALLEGED PROFESSIONAL RECEIPTS AND WITHOUT MAKING INQUIRES AS PER LAW. ITA NOS.171/AHD/2016 AND 3 OTHERS ASSTT. YEAR 2011 - 12 23 6. ON THE FACTS CONSIDERING THE SURROUNDING CIRCUMSTANCES, EVIDENCE AND PRINCIPLE OF TAXING REAL INCOME IN THE HANDS OF REAL PERSON , NO SUCH ADDITIONS IN THE HANDS OF ASSESSEE OUGHT TO HAVE BEEN MADE. 7. THE ORDER PASSED BY THE LEARNED CLT(APPEALS) IS SUBMITTED TO BE BAD - IN - LAW AND ON FAC TS IN AS MUCH AS THAT HE SIMPLY REPEATED AND RE - PRODUCED THE ORDER OF A.Y. 2011 - 12 IN PARAS 4.4 TO 4.10 FROM PAGE NO. 16 TO 34 OF THE APPEAL ORDER WITHOUT RECORDING FINDINGS ON THE ISSUES RELATING TO A.Y. 2008 - 09 UNDER CONSIDERATION WHEREBY THE ORDER GOT V ITIATED FACTUALLY AS WELL AS LEGALLY. 8. ALTERNATIVELY, CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES ONLY PROTECTIVE ADDITION OUGHT TO HAVE BEEN MADE AND OR INCOME OUGHT TO HAVE BEEN SUITABLY ESTIMATED IN THE HANDS OF THE ASSESSEE. 9. ON THE FACTS N O INTEREST U/S.234B OF THE I.T. ACT OUGHT TO HAVE BEEN LEVIED. 10. THE APPELLANT CRAVES LEAVE, TO ADD/ TO ALTER AND/OR MODIFY ANY GROUND OF APPEAL. 17. THE ISSUE RAISED BY THE ASSESSEE IS THAT THE LEARNED CIT (A) ERRED IN CONFIRMING THE ADDITION MADE BY THE AO FOR 11,27,778 / - ON ACCOUNT OF PROFESSIONAL RECEIPT. 18. AT THE OUTSET WE NOTE ISSUE RAISED BY THE ASSESSEE IS IDENTICAL TO THE ISSUE RAISED IN ITA NO. 171/AHD/2016 FOR A.Y. 2011 - 12 VIDE GROUND NO - 1 WHICH HAS BEEN PARTLY DECIDED IN FAVOUR OF THE ASSES SEE BY US IN PARAGRAPH NO 12 & 13 OF THIS ORDER. ACCORDINGLY F OLLOWING THE SAME WE PARTLY AL LOWE THE GROUND OF APPEAL OF THE ASSESSEE. 19. THE LEA RNED COUNSEL DID NOT PRESS OTHER ISSUES IN THE GROUNDS OF APPEAL. THEREFORE, WE DISMISS THE SAME AS NOT PRESSED. 20. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 21. COMING TO THE ITA NO.2138/AHD/2017 FOR A.Y. 2009 - 10 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THE LEARNED CIT(APPEALS) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE RE - ASSESSMENT PROCEEDING U/S.147 IN AS MUCH AS; A) THAT THE CONDITONS ENVISAGED UNDER THE ACT ARE NOT FULFILLED IN THE CASE OF APPELLANT. ITA NOS.171/AHD/2016 AND 3 OTHERS ASSTT. YEAR 2011 - 12 24 B) THAT TH E ORDER WAS INVALID, WITHOUT JURISDICTION, BAD IN LAW BEING AGAINT THE SETTLED PRINCIPLES OF LAW. C) THAT NO SPEAKING ORDER DISPOSING THE OBJECTIONS OF THE APPELLANT HAS BEEN PASSED. 2. WITHOUT PREJUDICE TO THE ABOVE LEGAL GROUNDS, HE HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE ADDITION OF RS.1,29,69,664/ - PAID BY THE ACCUTEST RESEARCH LABORATORIES PVT LTD. AS INCOME OF THE ASSESSEE IN AS MUCH AS THAT IT DOES NOT PERTAIN TO THE ASSESS EE CONSIDERED IN THE LIGHT OF PRINCIPLES OF LAW ENUNCIATED FOR TAXING REAL INCOME ONLY. 3. HE HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE ADDITION OF RS.1,29,69,664/ - AS INCOME OF THE ASSESSEE IN AS MUCH AS THAT THE EVIDENCE PRODUCED BY THE COMPANY WAS BO GUS, FABRICATED, BASELESS, WITHOUT BASIS , WITHOUT AGREEMENT AND THE ALLEGED AMOUNT IN EFFECT HAS BEEN TAKEN BY THE COMPANY ITSELF THEREBY THE ASSESSEE DISCHARGED THE ONUS LAY ON IT FOR EXPLAINING THE IMPUGNED RECEIPTS ALLEGED TO HAVE BEEN PAID BY THE ACCU TEST RESEARCH LABORATORIES PVT. LTD. 4. HE HAS ERRED IN LAW AND ON FACTS IN NOT CONSIDERING THE FACTS MENTIONED IN THE APPEAL MEMO FILED IN AS MUCH AS THAT NO INVESTIGATION WAS MADE/ORDERED AGAINST THE PAYER COMPANY BY THE A.O. OBSERVING THAT MATTER IS SUBJUDICE BEFORE COURT. 5. HE HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE AMOUNT OF RS. 1, 29,69, 664/ - AS INCOME OF THE ASSESSEE WITHOUT PROPERLY CONSIDERING AND APPRECIATING THE SUBMISSIONS WITH EVIDENCE MADE BY THE APPELLANT DURING COURSE OF ASSESSMEN T PROCEEDING DENYING RENDERING OF SERVICES AND ALLEGED PROFESSIONAL RECEIPTS AND WITHOUT MAKING INQUIRES AS PER LAW. 6. ON THE FACTS CONSIDERING THE SURROUNDING CIRCUMSTANCES, EVIDENCE AND PRINCIPLE OF TAXING REAL INCOME IN THE HANDS OF REAL PERSON , NO SUCH ADDITIONS IN THE HANDS OF ASSESSEE OUGHT TO HAVE BEEN MADE. 7. THE ORDER PASSED BY THE LEARNED CIT(APPEALS) IS SUBMITTED TO BE BAD - IN - LAW AND ON FACTS IN AS MUCH AS THAT HE SIMPLY REPEATED AND RE - PRODUCED THE ORDER OF A.Y. 2011 - 12 BEING PARAS 4.4 TO 4.10 FR OM PAGE NO. 30 TO 49 OF THE APPEAL ORDER WITHOUT RECORDING FINDINGS ON THE ISSUES RELATING TO A.Y. 2009 - 10 UNDER CONSIDERATION WHEREBY THE ORDER GOT VITIATED FACTUALLY AS WELL AS LEGALLY. 8. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES ALTERNATIVE LY ONLY PROTECTIVE ADDITION OUGHT TO HAVE BEEN MADE AND OR INCOME OUGHT TO HAVE BEEN SUITABLY ESTIMATED IN THE HANDS OF THE ASSESSEE. 9. HE HAS ERRED IN UPHOLDING ADDITION OF RS. 47,984/ - AS INTEREST INCOME FROM HDFC , STATE BANK OF PATIALA AS PER PARA 12 O F THE ASSESSMENT ORDER. 10. HE HAS ERRED IN UPHOLDING ADDITION OF RS. 4,0707 - AS INTEREST INCOME FROM HDFC - MUMBAI , PANCHUKULA , STATE BANK OF INDIA - PATIALA , ICICI - AS PER PARA 13 OF THE ASSESSMENT ORDER. 11. ON THE FACTS NO INTEREST U/S. 234 - B OF THE I. T . ACT. OUGHT TO HAVE BEEN LEVIED. 12. THE APPELLANT CRAVES LEAVE , TO ADD 7 TO ALTER AND /OR MODIFY ANY GROUND OF APPEAL. ITA NOS.171/AHD/2016 AND 3 OTHERS ASSTT. YEAR 2011 - 12 25 22. THE ISSUE RAISED BY THE ASSESSEE IS THAT THE LEARNED CIT (A) ERRED IN CONFIRMING THE ADDITION MADE BY THE AO FOR 1,29,69,664 / - ON ACCOUNT OF PROFESSIONAL RECEIPT. 23. AT THE OUTSET WE NOTE ISSUE RAISED BY THE ASSESSEE IS IDENTICAL TO THE ISSUE RAISED IN ITA NO. 171/AHD/2016 FOR A.Y. 2011 - 12 VIDE GROUND NO 1 WHICH HAS BEEN PARTLY DECIDED IN FAVOUR OF THE ASSES SEE BY US IN PAR AGRAPH NO 12 & 13 OF THIS ORDER. ACCORDINGLY FOLLOWING THE SAME WE PARTLY AL LOWE THE GROUND OF APPEAL OF THE ASSESSEE. 24. THE LEARNED COUNSEL DID NOT PRESS OTHER ISSUES IN THE GROUNDS OF APPEAL. THEREFORE, WE DISMISS THE SAME AS NOT PRESSED. 25. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED . 26. COMING TO THE ITA NO.690/AHD/2019 FOR A.Y. 2010 - 11 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THE LEARNED CIT(APPEALS) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE RE ASSESSMENT PROCEEDINGS FOR A.Y.2010 - 11 FOR ALLEGED PROFESSIONAL RECEIPTS AND ALLEGED INVESTMENT IN PROPERTY WITHOUT PROPERLY CONSIDERING THE FACTS THAT NO PROPER JURISDICTION HAS BEEN ASSUMED BY THE A.O., THE REQUISITE CONDITION U/S.147 HAVE NOT BEEN COMPL IED WITH AND DESPITE APPLICATION, THE COPY OF REQUISITE SANCTION NOT PROVIDED . 1 A) THE REASSESSMENT PROCEEDINGS ARE SUBMITTED TO BE BAD IN LAW FOR THE FACTS THAT IN THE NOTICE U/S.148 DTD.24/03/2017 IN THE PARA - 1 THE ASSESSMENT YEAR MENTIONED IS A.Y.2 013 - 14 RENDERING THE REASSESSMENT PROCEEDINGS INVALID. 2. THE ID.CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN UPHOLDING THE ADDITION OF RS.46,46,665/ - U/S.GQA FOR ALLEGED PROFESSIONAL RECEIPTS WITHOUT PROPERLY CONSIDERING THE SUBMISSION OF THE ASSE SSEE, THE DENIAL OF THE ASSESSEE FOR RENDERING ANY SERVICE AND HE HAS IGNORED THAT THE A.O. HAS NOT MADE ANY INQUIRY AND HAS NOT PROCURED ANY EVIDENCE FROM THE COMPANY FOR ALLEGED PROFESSIONAL RECEIPTS. 3. HE HAS ERRED IN LAW AND ON FACTS IN NOT CON SIDERING AND NOT APPRECIATING THE SUBMISSIONS MADE BEFORE HIM AGAINST THE ADDITION OF RS.46,46,665/ - AND IN THE DECISION MENTIONED ON PAGE NO.7 TO 22 OF APPEAL ORDER, HE HAS SIMPLY REPRODUCED THE OBSERVATIONS MADE IN APPEAL ORDER FOR A.Y.2011 - 12 AND WITHOU T RECORDING ANY INDEPENDENT FINDINGS ON THE IMPUGNED ADDITION AND HAS SIMPLY MENTIONED THE SUBMISSION OF THE ASSESSEE IN PARA.5.2 .WITHOUT CONSIDERING THE SAME. ITA NOS.171/AHD/2016 AND 3 OTHERS ASSTT. YEAR 2011 - 12 26 4. THE ID.CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS, IN SUSTAINING THE ADDITION OF RS.54,32,378/ - U/S.69 AS UNEXPLAINED INVESTMENT WITHOUT CONSIDERING THE SUBMISSION OF THE ASSESSEE EXPLAINING THE SAID INVESTMENT AND CONFIRMING THE ADDITION ON WRONG PREMISES. 4A) FOR THE ADDITION MADE U/S.69 OF RS.54,32,378/ - , THE ASSESSEE HAS EXPLAINEDTHE INVESTMENT WITH REQUISITE DOCUMENTS WHICH HAS SIMPLY BEEN IGNORED AND BY RECORDING ERRONEOUS FINDINGS THAT APPELLANT COULD NOT FILE ANY SUPPORTING EVIDENCE LIKE CONFIRMATIONS AND BANK STATEMENTS INASMUCH AS THAT ALL THESE FACTS WERE DULY SUBMITTED DURING APPELLATE PROCEEDINGS. 4B) HE HAS GRIEVOUSLY FAILED TO CONSIDER THE SUBMISSION DTD.24/12/2018 WHEREIN THE INVESTMENT IN PROPERTY WAS FULLY EXPLAINED. 4C) THE ID.CIT( A) HAS FAILED TO CONSIDER THE CONTENTION THAT THERE CAN BE `EITHER ADDITIONS OF ALLEGED RECEIPTS OR INVESTMENTS AND NOT OF THE BOTH WHICH HAS RESULTED INTO DOUBLE ADDITIONS. 4D) WITHOUT ADMITTING THE PROFESSIONAL RECEIPTS FOR WHICH ADDITION HAS BEEN MADE BY THE A.O. ,THE CORRESPONDING CREDIT OUGHT TO HAVE BEEN GIVEN FOR THE ALLEGED INVESTMENTS TO AVOID DOUBLE ADDITION. 5. ON THE FACTS, NO RE - ASSESSMENT PROCEEDINGS AND ADDITIONS FOR ALLEGED ' PROFESSIONAL RECEIPTS AND INVESTMENT IN PROPERTIES OUGHT TO HAVE BEEN MADE. 6. ON THE FACTS, NO INTEREST U/S.234A, 234 - B ,2340 AND 234D OUGHT TO HAVE BEEN LEVIED. 7. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER AND/OR MODIFY ANY GGROUND OF APPEALS. 27. THE ISSUE RAISED BY THE ASSESSEE IS THAT THE LEARNED CIT (A) ERRED IN CONFIRMING THE ADDITION MADE BY THE AO FOR 46,46,665 / - ON ACCOUNT OF PROFESSIONAL RECEIPT. 28. AT THE OUTSET WE NOTE ISSUE RAISED BY THE ASSESSEE IS IDENTICAL TO THE ISSUE RAISED IN ITA NO. 171/AHD/2016 FOR A.Y. 2011 - 12 VIDE GROUND NO - 1 WHICH HAS BEEN PARTLY DECIDED IN FAVOUR OF THE ASSES SEE BY US IN PARAGRAPH NO 13 & 14 OF THIS ORDER. ACCORDINGLY FOLLOWING THE SAME WE PARTLY AL LOW E THE GROUND OF APPEAL OF THE ASSESSEE. 29. THE LEARNED COUNSEL DID NOT PRESS OTHER ISSUES IN THE GROUNDS OF APPEAL. THEREFORE, WE DISMISS THE SAME AS NOT PRESSED. 30. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ITA NOS.171/AHD/2016 AND 3 OTHERS ASSTT. YEAR 2011 - 12 27 31. IN THE COMBINED RES ULTS, ALL THE FOUR APPEALS OF THE ASSESSEE ARE PARTY ALLOWED. O RDER PRONOUNCED IN THE COURT ON 22 /02 / 2021 AT AHMEDABAD. SD/ - SD/ - (MAHAVIR PRASAD ) (WASEEM AHMED ) JUDICIAL MEMBER ACCOUNTANT MEMBER (TRUE COPY) A HMEDABAD; DATED 22 / 02 /2021 MANISH