DCIT CC 7(4), MUMBAI V. PARAG V. MEHTA, MUMBAI

ITA 2507/MUM/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3447 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 18-08-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 01-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK JOHRI
• Assessee Lawyers: PRAKASH K JOTWANI
• Keywords: Document seized; Accommodation entries; Retraction
• Section: 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI J BENCH, MUMBAI BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER. ITA. NOS. 1643 TO 1649/MUM/2015 (ASSESSMENT YEAR: 2005-06 TO 2011-12) SHRI PARAG V. MEHTA 114/114A, JOLLY BHAVAN NO.1, 10, NEW MARINE LINES, MUMBAI - 400 020 APPELLANT VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 43, 8 TH FLOOR, OLD CGO BLDG., PRATISHTHA BHAVAN, M. K. ROAD, MUMBAI 400 020 RESPONDE NT & ITA. NOS. 2507 TO 2513/MUM/2015 (ASSESSMENT YEAR: 2005-06 TO 2011-12) THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 43, 8 TH FLOOR, OLD CGO BLDG., PRATISHTHA BHAVAN, M. K. ROAD, MUMBAI 400 020 A PPELLANT VS. SHRI PARAG V. MEHTA 114/114A, JOLLY BHAVAN NO.1, 10, NEW MARINE LINES, MUMBAI - 400 020 RESPONDENT PAN: AAGPM0715J ITA NOS.1643 TO 1649 & 2507 TO 2513/MUM/15 A.YS. 05-06 TO 11-12 (SHRI PARAG V. MEHTA) PAGE 2 / BY ASSESSEE : SHRI PRAKASH K. JOTWANI, A.R. / BY REVENUE : SHRI ALOK JOHRI, D.R /DATE OF HEARING : 26.08.2016 /DATE OF PRONOUNCEMENT : 26.08.2016 ORDER PER BENCH : THESE SEVEN CROSS APPEALS BY ASSESSEE AND REVENUE A RE ARISING FROM THE CONSOLIDATED ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-49, MUMBAI, DATED 30.01.2015 F OR A.YS. 2005-06 TO 2011-12. SINCE, ALL APPEALS PERTA IN TO SAME ASSESSEE AND ON ALMOST SIMILAR ISSUE, SO THEY ARE B EING DISPOSED OF BY COMMON ORDER FOR THE SAKE OF CONVENI ENCE. 2. IN ITA NO.1643/MUM/2015 FOR A.Y.2005-06, ASSESSE E HAS FILED THE APPEAL ON THE FOLLOWING GROUNDS: ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW: 1. (A) THE LEARNED CIT (A) ERRED IN HOLDING THAT TH E APPELLANT WAS THE MAIN PERSON ORGANIZING BOGUS BILLS FOR WASHINGTON SOFTWARE LTD. AND CONSEQUENTLY ERRED IN ESTIMATING COMMISSION DEEMED TO HAVE BEEN RECEIVED AT 3% OF BOGUS BILLS LESS 1% HAVING BEEN PARTED, THUS DIRECTING 2% OF BOGUS BILLS ISSUED TO BE THE INCOME OF THE YEAR. (B) THE LEARNED CIT (A) ERRED IN CONFIRMING THE ABO VE ADDITION ON PRESUMPTIVE BASIS DESPITE HOLDING IN THE ORDER THAT THERE WAS NO MATERIAL OR EVIDENCE TO SUBSTANTIATE THE SAME. (C) THE LEARNED CIT (A) ERRED IN RELYING UPON THE STATEMENT OF SANJAY SONAWANI DATED 16/03/2011 ITA NOS.1643 TO 1649 & 2507 TO 2513/MUM/15 A.YS. 05-06 TO 11-12 (SHRI PARAG V. MEHTA) PAGE 3 AND DISREGARDING THE SUBSEQUENT STATEMENTS, SUBMISSIONS, ATTENDANCES MADE BY HIM BEFORE AO WHICH CONFIRM THAT THE STATEMENT DATED 16/03/2011 WAS RETRACTED UPON. THE LEARNED CIT (A) ERRED IN HOLDING THAT RETRACTION, IF ANY, SHOUL D BE DONE IN A DAY OR TWO AND THE SUBSEQUENT STATEMENT MADE AFTER 25 DAYS AND ALSO OTHER SUBSEQUENT ONES SHOULD NOT BE GIVEN CREDENCE TO. 2. THE LEARNED CIT (A) ERRED IN NOT DELETING ADDITI ON OF RS. 9,53,250/- BEING 2% I.E. RS. 3,81,300/- ON SUBSTANTIVE BASIS AND 3% BEING RS. 5,71,950/- ON PROTECTIVE BASIS, THOUGH THE SAME WAS DELETED BY HIM IN THE CASE OF SANJAY SONAWANI AND ALSO NOT GIVING A FINDING ON THE SAME FOR DELETION OR CONFIRMATION THOUGH GROUND NO. 3 QUESTIONING THE ABOVE WAS RAISED BEFORE HIM. 2.1 IN ITA NO.2507/MUM/2015 FOR A.Y.2005-06, REVENU E HAS FILED THE APPEAL ON THE FOLLOWING GROUND: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD.CIT(A) ERRED IN RESTRICTING THE ADDITION MADE ON COMMISSION RECEIVED FOR PROVIDING BOGUS BILLS AT 2% OF THE TOTAL TURNOVER, AS AGAINST 5% ADOPTED BY THE AO, WITHOUT APPRECIATING THE FACT THAT THE CIT(A) DID NOT CONSIDER THE FACTS AND THE ISSUES OF ADDITION MADE BY THE AO. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD.CIT(A) ERRED IN RESTRICTING THE ADDITION MADE ON COMMISSION RECEIVED ON THE BALANCE BOGUS TRANSACTION AT 2% OF THE TOTAL TURNOVER, AS AGAINST 5% ADOPTED BY THE AO, WITHOUT APPRECIATING THE FACT THAT THE CIT(A) DID NOT CONSI DER THE FACTS AND THE ISSUES OF ADDITION MADE BY THE AO . 3. ASSESSING OFFICER MADE ADDITION ON ACCOUNT OF EA RNING COMMISSION INCOME @ 5% OF BOGUS SALES MADE FOR A.YS . 2005-06 TO 2011-12. HE HELD THAT ASSESSEE WAS PROV IDING ITA NOS.1643 TO 1649 & 2507 TO 2513/MUM/15 A.YS. 05-06 TO 11-12 (SHRI PARAG V. MEHTA) PAGE 4 ACCOMMODATION ENTRIES TO NEEDY PARTIES BY ISSUING S ALE BILLS AND WAS EARNING COMMISSION INCOME FOR SERVICE RENDE RED. ASSESSING OFFICER BROUGHT TO TAX 3% OF BOGUS SALES AS COMMISSION INCOME ON SUBSTANTIVE BASIS AND 2% OF BO GUS SALES AS COMMISSION INCOME ON PROTECTIVE BASIS. 4. MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AU THORITY, WHEREIN CONSIDERING THE VARIOUS ASPECTS OF THE CASE , CIT(A) GRANTED PARTIAL RELIEF BY OBSERVING AS UNDER: 7.0 THE FACTS OF THE CASE, THE GROUNDS OF APPEAL, THE STAND TAKEN BY THE ASSESSING OFFICER IN THE ASSESSM ENT ORDERS AND THE WRITTEN SUBMISSIONS FILED BY THE APP ELLANT HAVE BEEN CAREFULLY CONSIDERED. 7.1 IN THIS CASE, THERE IS NO DISPUTE ABOUT ACCOMMODATION ENTRIES PROVIDED BY M/S WASHINGTON SOFTWARE LTD., IN WHICH SHRI SONWANI IS THE DIRECTO R CUM CHAIRMAN. HOWEVER, AS PER THE FIRST STATEMENT RECOR DED FROM SHRI SANJAY SONWANI ON 16.3.2011, IT WAS CATEGORICALLY STATED BY HIM THAT SINCE THERE WERE F INANCIAL CRISIS AND OTHER LEGAL PROBLEMS IN THE CASE OF M/S WASHINGTON SOFTWARE LTD., HE TOOK THE OPPORTUNITY O FFERED BY SHRI PARAG MEHTA TO USE THE NAME OF M/S WASHINGT ON SOFTWARE LTD., FOR PROVIDING ACCMMODATION ENTRIES I N RESPECT OF THE PARTIES KNOWN TO SHRI PARAG MEHTA FO R A COMMISSION OF 1% ON BOGUS BILLS ISSUED. THE ISSUING OF BOGUS BILLS AND OTHER RELATED ACTIVITIES HAVE BEEN CARRIED OUT IN THE OFFICE PREMISES OF SHRI PARAG V MEHTA AS EVIDENCED BY THE SEIZURE OF DOCUMENTS AND THE COMPU TER DATA ON 22.3.2011. SHRI PARAG MEHTA MERELY STATES T HAT THE OFFICE PREMISE WAS PROVIDED TO SHRI SANJAY SONW ANI TO CARRY ON THE BUSINESS OF BOGUS BILLING BECAUSE SHRI SANJAY SONWANI IS HIS FRIEND. THE A.O. MENTIONED IN THE ASSESSMENT ORDER THAT IN NORMAL CIRCUMSTANCES, NO O NE PROVIDES HIS OFFICE PREMISES AND HIS STAFF AND THE COMPUTERS TO BE MISUSED BY HIS FRIEND FOR ISSUING B OGUS SALE BILLS. I AM IN AGREEMENT WITH THE VIEWS OF THE A.O ITA NOS.1643 TO 1649 & 2507 TO 2513/MUM/15 A.YS. 05-06 TO 11-12 (SHRI PARAG V. MEHTA) PAGE 5 BECAUSE THOUGH SHRI PARAG V MEHTA REFERS SHRI SANJA Y SONWANI AS A FRIEND BUT NOWHERE IN THE STATEMENT OF SHRI SANJAY SONWANI, SHRI PARAG V MEHTA WAS REFERRED AS A FRIEND. SHRI PARAG V MEHTA WAS REFERRED TO AS A CHA RTERED ACCOUNTANT, WHO GAVE THE IDEA TO SHRI SANJAY SONWAN I TO LEND THE NAME OF THE COMPANY M/S WASHINGTON SOFTWAR E LTD., FOR ISSUING BOGUS BILLS FOR COMMISSION FOR HI S CLIENTS. IN ORDINARY CIRCUMSTANCES, NOBODY ALLOWS THE OFFICE PREMISES TO BE USED BY A THIRD PARTY, WHO MAY OR MA Y NOT BE A FRIEND TO BE USED FOR FRAUDULENT MEANS UNTIL OTHERWISE THE PERSON HIMSELF IS PARTY TO THE ACTIVI TY. IN SUCH CIRCUMSTANCES THE FRUITS OF THE JOINT ACTIVITY ARE SHARED BY BOTH THE PARTIES. IN THIS CASE, THE APPEL LANT NOT ONLY PROVIDED HIS OFFICE PREMISES BUT ALSO PROVIDED HIS MEN AND MATERIAL INCLUDING THE COMPUTER. THIS ONLY SHOWS THAT THE APPELLANT IS ALSO A PARTY TO THE FRA UDULENT BUSINESS OF EARNING COMMISSION BY PROVIDING ACCOMMODATION ENTRIES. 7.2 THE APPELLANT ALSO SUBMITTED THAT HE WAS UNAWAR E OF SHRI SANJAY SONAWANI MISUSING HIS COMPUTER AND THE STAFF. IT IS DIFFICULT TO BELIEVE THAT SHRI SANJAY SONAWANI WAS MISUSING THE STAFF AND THE COMPUTER IN THE BUSI NESS PREMISES OF THE APPELLANT WITHOUT HIS KNOWLEDGE. IN SUCH CIRCUMSTANCES, SOME ACTION MUST HAVE BEEN TAKEN AGAINST THE STAFF OR AGAINST SHRI SANJAY SONAWANI B Y THE APPELLANT WHICH IS NOT THE CASE HERE. 7.3 THERE ARE THREE STATEMENTS RECORDED FROM SHRI SANJAY SONWANI ON THE FOLLOWING DATES, 16.3.2011, 12.4.2011 AND 12.05.2011. THE APPELLANT SUBMITTED T HAT THE STATEMENT RECORDED FROM SHRI SANJAY SONWANI ON 16.3.2011 SHOULD NOT BE TAKEN INTO ACCOUNT SINCE SH RI SANJAY SONAWANI HIMSELF IN THE LATER STATEMENTS REC ORDED ON 12.04.2011 AND ON 12.05.2011 CLARIFIED THAT HE W AS MISUNDERSTOOD AND MISINFORMED AND OUT OF CONFUSION HE STATED ERRONEOUSLY THAT SHRI PARAG MEHTA WAS RESPON SIBLE FOR ISSUING BOGUS BILLS. THE APPELLANT ALSO SUBMITT ED THAT HE ALWAYS STATED THAT HE WAS NOT INVOLVED IN ISSUIN G BOGUS BILLS IN ALL THE STATEMENTS RECORDED FROM HIM . IN VIEW OF THE STATEMENTS RECORDED FROM SHRI SANJAY SO NWANI ON 12.04.2011 AND 12.05.2011 AND ALSO BECAUSE OF HI S ITA NOS.1643 TO 1649 & 2507 TO 2513/MUM/15 A.YS. 05-06 TO 11-12 (SHRI PARAG V. MEHTA) PAGE 6 OWN STATEMENTS RECORDED ON 22.03.2011 AND ON 25.03.2011, THE APPELLANT ARGUED THAT HE WAS NOT PA RT OF THE BUSINESS OF ISSUING BOGUS BILLS. THE ABOVE SUBM ISSION OF THE APPELLANT IS NOT ACCEPTABLE FOR THE FOLLOWIN G REASONS. IN THE ASSESSMENT ORDER THE A.O MENTIONED THAT THE PHONE CALL RECORDS WERE CALLED FOR BY THE INVES TIGATION WING AND ON CAREFUL EXAMINATION OF CALL DURATION RE PORT, FOR THE PERIOD PRIOR TO 22.03.2011, SHRI PARAG MEHT A WAS IN TOUCH WITH SHRI SANJAY SONWANI FOR ONE OR TWO MI NUTES IN A DAY WHEREAS AFTER SEARCH PERIOD I.E. MORE SPEC IFICALLY FROM 22.3.2011 THE CALL DURATION BETWEEN THEM INCRE ASED UPTO 15 MINUTES EACH CALL. THE A.O. INFERRED THAT T HE CALLING OF SHRI SANJAY SONWANI BY SHRI PARAG MEHTA SHOWS THAT SHRI SANJAY SONWANI WAS UNDER CONSTANT INFLUEN CE OF SHRI PARAG MEHTA. IN THIS REGARD, I AM OF THE OPINI ON THAT THOUGH THE ACTUAL CALL RECORDS ONLY COULD PROVE THE NATURE OF DIALOGUE BETWEEN THE PARTIES, HOWEVER, THE SUDDE N SPURT IN THE DURATION OF THE CALLS FOR 15 MINUTES O R SO INDICATE THAT THERE WAS A SERIOUS DISCUSSION BETWEE N THE PARTIES WHICH MUST HAVE HAD INFLUENCE ON SHRI SANJA Y SONWANI IN THE STATEMENTS RECORDED FROM HIM ON 12.04.2011 AND ON 12.05.2011. IT IS ALSO CRUCIAL TO EXAMINE WHICH OF THE STATEMENTS RECORDED FROM SHRI SANJAY SONWANI SHOULD BE RELIED UPON. IS IT THE FIR ST STATEMENT RECORDED FROM HIM ON 16.3.2011 OR THE SUBSEQUENT STATEMENTS RECORDED FROM HIM ON 12.04.20 11 AND 12.05.2011? IN THIS REGARD, I AM OF THE VIEW TH AT IF THE APPELLANT GOES BACK ON THE FIRST STATEMENT, THE ONUS IS UPON HIM TO GIVE THE REASONS FOR GOING BACK ON THE FIRST STATEMENT AND ALSO SIMULTANEOUSLY ESTABLISH HOW THE CONTENTS OF THE FIRST STATEMENT ARE INCORRECT. THE ONLY SUBMISSION OF SHRI SANJAY SONWANI IN THIS REGARD IS THE FIRST STATEMENT WAS GIVEN UNDER CONFUSION AND HE WA S MISUNDERSTOOD AND MISINFORMED. IF THE ASSERTION OF CONFUSION AND MISUNDERSTANDING IS TRUE, IT IS EXPEC TED FROM SHRI SANJAY SONWANI TO STATE SO IMMEDIATELY AF TER THE CONCLUSION OF THE FIRST STATEMENT RECORDED ON 16.3.2011, PERHAPS THE VERY NEXT DAY OR WITHIN A FE W DAYS. SHRI PARAG MEHTA ALSO SUBMITTED IN THE COURSE OF APPEAL PROCEEDINGS THAT PRESSURE WAS BUILT UP ON SH RI SANJAY SONWANI TO DECLARE THAT SHRI PARAG MEHTA WAS THE MAIN PERSON BEHIND SUCH DEALINGS. THE SUBMISSION OF ITA NOS.1643 TO 1649 & 2507 TO 2513/MUM/15 A.YS. 05-06 TO 11-12 (SHRI PARAG V. MEHTA) PAGE 7 SHRI PARAG MEHTA IS ALSO NOT ACCEPTABLE BECAUSE THE RE IS NO EVIDENCE TO SHOW THAT PRESSURE WAS APPLIED WHILE RECORDING STATEMENT ON 16.3.2011. EVEN SHRI SANJAY SONWANI DID NOT SAY IN THE SUBSEQUENT STATEMENTS RECORDED FROM HIM THAT THERE WAS PRESSURE APPLIED O N HIM ON 16.3.2011 TO GIVE EVIDENCE AGAINST SHRI PARAG V MEHTA. THERE IS NOTHING ON RECORD TO SHOW THAT THE OFFICER CONCERNED HAD A MALAFIDE INTENTION TO IMPLICATE SHR I PARAG V MEHTA. IF THE STATEMENT WAS GIVEN UNDER PRE SSURE NOTHING PREVENTED SHRI SANJAY SONWANI TO STATE SO W ITHIN A FEW DAYS AFTER RECORDING THE STATEMENT. THE SEQUE NCE OF THE FACTS STATED BY SHRI SANJAY SONWANI IN THE STAT EMENT RECORDED FROM HIM ON 16.3.2011 LOOKS MORE CREDIBLE AND BELIEVABLE SINCE THE ENTIRE OPERATION WAS CARRIED O UT IN THE BUSINESS PREMISES OF SHRI PARAG V MEHTA BY USIN G THE STAFF AND COMPUTER OF SHRI PARAG V MEHTA. SINCE NEI THER THE APPELLANT NOR SHRI SANJAY SONWANI ESTABLISHED W ITH EVIDENCE THAT THE CONTENTS OF THE STATEMENT RECORDE D ON 16.3.2011 ARE NOT TRUE, EVIDENTIARY VALUE OF THE STATEMENTS RECORDED ON 16.3.2011 IS NOT LOST. IN VI EW OF THE ABOVE, THE STATEMENTS RECORDED FROM SHRI SANJAY SONWANI ON 12.04.2011 AND 12.05.2011 COULD NOT BE RELIED UPON. 7.4 IT IS ALSO MENTIONED IN THE ASSESSMENT ORDER TH AT SHRI SANJAY SONWANI IN THE SUBSEQUENT STATEMENTS PUT THE BLAME ON SHRI ROHIDAS KUMBARKAR, WHO IS DECEASED AN D IS NOT AVAILABLE FOR CROSS VERIFICATION. THE A.O ST ATED THAT THIS IS A WELL THOUGHT OUT MOVE TO EXTRICATE HIMSEL F OR TO SAVE SHRI PARAG MEHTA FROM A DIFFICULT SITUATION. I T IS ALSO MENTIONED IN THE ASSESSMENT ORDER THAT SHRI SANJAY SONWANI IN THE STATEMENT RECORDED IN DECEMBER 2011 WHILE REQUESTING HIM TO GIVE A CLIENT LIST HE FURNI SHED THE SAME ONLY AFTER RECEIVING IT FROM SHRI PARAG MEHTA BY AN E-MAIL. IT IS ALSO RELEVANT TO BRING ON RECORD THAT THE BLANK SIGNED CHEQUES AND RTGS FORMS WERE FOUND AND SEIZED FROM THE OFFICE PREMISES OF SHRI PARAG MEHTA. THE ACCOUNTS AND THE INVOICES AND OTHER CORRESPONDENCES OF M/S WASHINGTON SOFTWARE LTD. WERE ALSO FOUND IN THE COMPUTERS OF SHRI PARAGE MEHTA. ITA NOS.1643 TO 1649 & 2507 TO 2513/MUM/15 A.YS. 05-06 TO 11-12 (SHRI PARAG V. MEHTA) PAGE 8 7.5 DURING THE APPEAL PROCEEDINGS THE APPELLANT SUBMITTED THAT SHRI VIJAY BERLIA, GENERAL SECRETARY , APEEJAY, IN THE STATEMENT RECORDED FROM HIM STATED THAT HE WAS NOT IN TOUCH WITH SHRI PARAG V MEHTA FOR THE LAST 21 YEARS BUT ON THE CONTRARY HE KNEW SHRI SANJAY SONWANI. THE ABOVE SUBMISSION OF THE APPELLANT HAS NOT BEEN PROVED. COPY OF SUCH STATEMENT HAS NOT BEEN PRODUCED. ON THE CONTRARY THE A.O MENTIONED IN THE ASSESSMENT ORDER THAT SHRI VIJAY BERLIA IN THE STAT EMENT RECORDED FROM HIM STATED THAT SHRI PARAG MEHTA IS S ON OF SHRI SHRI VINOD MEHTA, HIS FRIEND AND CHARTERED ACCOUNTANT AND HE IS ALSO DIRECTOR OF ONE OF THE GR OUP COMPANIES NAMELY M/S MARTIN AND HARRIS. 7.6 THE ABOVE FACTS CLEARLY INDICATE THAT SHRI PARA G V MEHTA, THE APPELLANT, IS THE MAIN PERSON. HE WAS US ING THE NAME OF M/S WASHINGTON SOFTWARE LTD., AND PAID COMMISSION TO SHRI SANJAY SONAWANI AT THE RATE OF 1 % ON THE BOGUS SALE BILLS. SHRI PARAG V MEHTA WOULD NOL HAVE FACILITATED SUCH ACTIVITY FOR NOTHING BUT FOR EARNI NG COMMISSION INCOME ON THE SAME. IT IS CLEAR THAT 1% OF COMMISSION INCOME WAS PARTED WITH SHRI SANJAY SONAWANI. THE CIT (A) ALSO CONFIRMED 1% COMMISSION INCOME IN THE CASE OF M/S.WASHINGTON SOFTWARE LTD., AND SIMULTANEOUSLY DELETED THE SAME ADDITION MADE IN TH E CASE OF SHRI SANJAY SONAWANI ON THE BASIS OF THE STATEMENT RECORDED FROM SHRI SANJAY SONAWANI U/S 13 1 OF THE ACT ON 16.3.2011 WHEREIN HE HAD CATEGORICALL Y STATED THAT COMMISSION INCOME @ 1% WAS EARNED BY M/ S WASHINGTON SOFTWARE LTD. ON THE BOGUS BILLS ISSUED. THE APPELLANT ALSO SUBMITTED THAT THE 5% COMMISSION INC OME BROUGHT TO TAX IN THE CASE OF THE APPELLANT IS ALSO TAXED IN THE CASE OF M/S WASHINGTON SOFTWARE LTD., AND IN TH E CASE OF SHRI SANJAY SONAWANI. THE SUBMISSION OF THE APPELLANT IS NOT ACCEPTABLE. IT IS TRUE THAT THE CO MMISSION INCOME ASSESSED IN THE CASE OF M/S WASHINGTON SOFTW ARE LTD., AND ITS DIRECTOR SHRI SANJAY SONAWANI IS SAME AND THAT IS WHY IT WAS CONFIRMED ONLY IN THE CASE OF TH E COMPANY BUT NOT IN THE CASE OF INDIVIDUAL IN THE EA RLIER ORDERS PASSED BY THE CIT (A) BUT THE FACTS IN THE C ASE OF SHRI PARAG MEHTA, THE APPELLANT ARE DIFFERENT. SHRI PARAG V MEHTA EARNED COMMISSION INCOME IN THE BUSINESS OF ITA NOS.1643 TO 1649 & 2507 TO 2513/MUM/15 A.YS. 05-06 TO 11-12 (SHRI PARAG V. MEHTA) PAGE 9 PROVIDING ACCOMMODATION ENTRIES AND PARTED 1% TO SH RI SANJAY SONWANI AS INCOME OF M/S WASHINGTON SOFTWARE LTD. THIS SHOWS THAT SHRI PARAG V MEHTA HAD EARNED COMMISSION INCOME WHICH IS MORE THAN 1% ON THE BOGU S SALE BILLS. THE A.O HAS TAKEN 3% SUBSTANTIVELY AND 2% PROTECTIVELY TOTALING TO 5% ON BOGUS SALE BILLS AS THE COMMISSION INCOME OF SHRI PARAG V MEHTA. IT IS MENTIONED IN THE ASSESSMENT ORDER THAT ON THE BASIS OF MARKET ENQUIRIES 5% COMMISSION INCOME WAS TAKEN, HOWEVER, THERE IS NO EVIDENCE BROUGHT ON RECORD AS THE BASIS FOR MARKET ENQUIRIES CONDUCTED. IN THESE CIRCUMSTANCES, AND ON THE BASIS THAT THE APPELLANT HAD RECEIVED COMMISSION INCOME WHICH SHOULD BE MORE THA N WHAT IS PARTED WITH SHRI SANJAY SONWANI AND ALSO BY TAKING INTO ACCOUNT THE OFFICE PREMISE OF THE APPEL LANT WAS GIVEN FREELY ALONG WITH THE STAFF AND COMPUTER AND ALSO CONSIDERING THE FACT THAT THE CLIENTS OF THE APPELL ANT WERE BENEFICIARIES AND ALSO FOR THE REASONS THAT THE DOC UMENT SEIZED WERE FOUND IN THE OFFICE PREMISES OF THE APP ELLANT, I AM OF THE VIEW THAT SHRI PARAG V MEHTA IS THE MAIN PERSON IN THE BUSINESS OF ISSUING BOGUS BILLS AND H IS COMMISSION INCOME IS ACCORDINGLY REASONABLY ESTIMAT ED AT 3% OF THE BOGUS SALE BILLS ISSUED. SINCE OUT OF 3% COMMISSION INCOME DETERMINED AS ABOVE, 1% HAS BEEN PARTED WITH SHRI SANJAY SONWANI, 2% COMMISSION INCO ME ON NET BASIS IS HEREBY DIRECTED TO BE TAKEN AS COMM ISSION INCOME OF THE APPELLANT FOR EACH OF THE ASSESSMENT YEARS FROM 2005-06 TO 2011-12. IN THE RESULT, THE APPEALS ARE PARTLY ALLOWED. 4.1 BOTH PARTIES ARE BEFORE US AGAINST THEIR RESPEC TIVE GRIEVANCES. LEARNED AUTHORIZED REPRESENTATIVE SUBM ITTED THAT CIT (A) ERRED IN HOLDING THAT ASSESEEE WAS THE MAIN PERSON ORGANIZING BOGUS BILLS FOR WASHINGTON SOFTWA RE LTD. AND CONSEQUENTLY ERRED IN ESTIMATING COMMISSION DEE MED TO HAVE BEEN RECEIVED AT 3% OF BOGUS BILLS LESS 1% HAV ING BEEN PARTED, THUS DIRECTING 2% OF BOGUS BILLS ISSUED TO BE THE INCOME OF THE YEAR IN THE HANDS OF ASSESSEE. CIT(A ) ERRED IN ITA NOS.1643 TO 1649 & 2507 TO 2513/MUM/15 A.YS. 05-06 TO 11-12 (SHRI PARAG V. MEHTA) PAGE 10 CONFIRMING THE ABOVE ADDITION ON PRESUMPTIVE BASIS DESPITE HOLDING IN THE ORDER THAT THERE WAS NO MATERIAL OR EVIDENCE TO SUBSTANTIATE THE SAME. CIT(A) ERRED IN RELYING UPON THE STATEMENT OF SANJAY SONAWANI DATED 16.03.2011 AND DISREGARDING THE SUBSEQUENT STATEMENTS, SUBMISSIONS , ATTENDANCES MADE BY HIM BEFORE ASSESSING OFFICER WH ICH CONFIRM THAT THE STATEMENT DATED 16.03.2011 WAS RET RACTED UPON. CIT(A) ERRED IN HOLDING THAT RETRACTION, IF A NY, SHOULD BE DONE IN A DAY OR TWO AND THE SUBSEQUENT STATEMEN T MADE AFTER 25 DAYS AND ALSO OTHER SUBSEQUENT ONES SHOULD NOT BE GIVEN CREDENCE TO. CIT (A) ERRED IN NOT DELETING A DDITION IN QUESTION THOUGH THE SAME WAS DELETED BY HIM IN THE CASE OF SANJAY SONAWANI. LEARNED AUTHORIZED REPRESENTATIVE ALSO SUBMITTED THAT IN CASE OF M/S. APEEJAY EDUCATION SO CIETY & GROUPS IN QUESTION, RECIPIENTS OF ALLEGED ACCOMMODA TION ENTRIES HAVE BEEN ACCEPTED TO BE GENUINE. 4.2 ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTAT IVE SUBMITTED THAT ASSESSEE IS MAIN PERSON BEHIND SUCH DEALINGS. SHRI SANJAY SONAWANI IS BEING USED BY AS SESSEE AS FRONT-MAN FOR PROVIDING ACCOMMODATION ENTRIES. SO, ASSESSING OFFICER HAS RIGHTLY MADE ADDITION ON ACCO UNT OF EARNING COMMISSION @ 5% OF BOGUS SALES MADE FOR A.Y S. 2005-06 TO 2011-12. IN ASSESSMENT ORDER, ASSESSING OFFICER RIGHTLY HELD THAT ASSESSEE WAS PROVIDING ACCOMMODAT ION ENTRIES TO NEEDY PARTIES BY ISSUING BOGUS SALE BILL S BY EARNING COMMISSION INCOME FOR THE SERVICE RENDERED. ASSESSING OFFICER RIGHTLY BROUGHT INTO TAX 5% COMMI SSION ITA NOS.1643 TO 1649 & 2507 TO 2513/MUM/15 A.YS. 05-06 TO 11-12 (SHRI PARAG V. MEHTA) PAGE 11 INCOME FROM BOGUS BILLING BEING 3% AS SUBSTANTIVE B ASIS AND 2% BEING ON PROTECTIVE BASIS. SO, THE ORDER OF ASS ESSING OFFICER SHOULD BE CONFIRMED. 5. AFTER GOING THROUGH RIVAL SUBMISSIONS AND MATERI AL ON RECORD, WE FIND THAT ASSESSEE IS AN INDIVIDUAL AND A PRACTICING CHARTERED ACCOUNTANT. THERE WAS A SEARCH ACTION ON MR. SANJAY SONAWANI AT PUNE 16.03.2011 INTER ALI A STATED THAT HE WAS A DIRECTOR OF WASHINGTON SOFTWARE LTD. ( IN SHORT WSL) AND THE BUSINESS OF COMPANY WAS MERELY ACCOMMODATION ENTRIES AND USED TO RECEIVE 1% COMMIS SION FOR MAKING SUCH ENTRIES. HE FURTHER STATED THAT SHR I PARAG MEHTA, ASSESSEE HAD ASSISTED HIM IN OBTAINING SUCH ENTRIES. HE FURTHER STATED THAT HE DID NOT RECEIVE THE ENTIR E SUM OF 1% WHICH IS APPROXIMATELY RS.52 LAKHS. THE STATEME NT DATED 16.03.2011 WAS MODIFIED BY HIM IN HIS STATEME NT DATED 12.4.2011, & 16.5.2011 WHICH HAS BEEN PLACED IN PAPER BOOK AT PAGE NOS. 51 TO 64. NO OTHER CORROBO RATIVE EVIDENCE WAS FOUND TO SUBSTANTIATE THE STAMENT MADE BY SANJAY SONAWANI. HOWEVER, WSL ACCEPTED THE 1% ADDIT ION MADE IN ITS HANDS. ON THE SUBSEQUENT STATEMENTS AN D LETTERS WRITTEN TO ASSESSING OFFICER & CIT(A) BY SA NJAY SONAWANI, HE STATED THAT PARAG MEHTA HAD NO SAY OR HAND IN THE ISSUANCE OF BILLS FOR ACCOMMODATION. HE FURTHER STATED THAT HE KNEW THE PARTIES VERY WELL TO WHOM ALLEGED ACCOMMODATION ENTRIES WERE ISSUED. ITA NOS.1643 TO 1649 & 2507 TO 2513/MUM/15 A.YS. 05-06 TO 11-12 (SHRI PARAG V. MEHTA) PAGE 12 5.1 IN VIEW OF STATEMENT OF 16.03.2011 OF SANJAY SO NAWANI, A SEARCH ACTION TOOK PLACE ON PARAG MEHTA ON 22.03. 2011 WHEREIN HE WAS CONFRONTED WITH THE STATEMENT OF SAN JAY SONAWANI. COPY OF STATEMENT IS PLACED ON PAGE NO. 1 7 OF PAPER BOOK. ASSESSEE SUBMITTED THAT HE HAD NO CONT ROL OVER THE BUSINESS ACTIVITIES OF SANJAY SONAWANI AND HE H AD IN FACT HELPED HIM BY PROVIDING TABLE SPACE IN HIS OFFICE A ND HENCE CHEQUE BOOKS AND OTHER PAPERS WERE FOUND FROM HIS O FFICE. NO OTHER MATERIAL, EVIDENCE, CASH, PAPER, DOCUMENT ETC. WAS FOUND TO ESTABLISH THE FACT THAT PARAG MEHTA WAS IN VOLVED OR HAD CONTROL OVER ISSUING ACCOMMODATION ENTRIES FOR AND ON BEHALF OF SANJAY SONAWANI OR WSL. ASSESSING OFFICE R DID NOT ACCEPT THE VERSION OF ASSESSEE AND MADE THE FOLLOWI NG ADDITIONS: I. 3% OF TURNOVER ON SUBSTANTIVE BASIS. II. 2% OF TURNOVER ON PROTECTION BASIS. DESPITE THE FACT THAT SANJAY SONAWANI HAD CONSENTED TO 1%, AND THE CIT(A) AND ITAT HAVE SUSTAINED THE ADDITION UPTO 1% IN HANDS OF WSL, ASSESSING OFFICER MADE THE AFOR ESAID ADDITION. 5.2 IN APPEAL THE CIT(A) SUSTAINED THE ADDITION TO THE EXTENT OF 3% OF TURNOVER LESS 1% PAID TO WSL AND THEREFORE SUSTAINED 2% OF TURNOVER AS ADDITION IN HANDS OF TH E ASSESSEE. ASSESSEE IS IN APPEAL AGAINST THE SUSTAI NING ADDITION OF 2% WHILE DEPARTMENT IS IN APPEAL AGAINS T DELETION OF 2% MADE PROTECTIVE BASIS. ITA NOS.1643 TO 1649 & 2507 TO 2513/MUM/15 A.YS. 05-06 TO 11-12 (SHRI PARAG V. MEHTA) PAGE 13 6. THE STAND OF ASSESSEE HAS BEEN THAT ASSESSEE HAD NO CONTROL OVER ISSUE OF ACCOMMODATION ENTRIES. ALL BU SINESS ACTIVITIES, IF ANY, WERE DONE BY SANJAY SONAWANI BE ING DIRECTOR OF WSL AS MENTIONED ABOVE. NO MATERIAL, E VIDENCE WAS FOUND FROM ASSESSEE OR FROM SANJAY SONAWANI TO ESTABLISH THE FACT THAT PARAG MEHTA WAS MASTER MIND IN ISSUING ACCOMMODATION ENTRIES. NO MATERIAL HAS BEEN FOUND THAT ASSESSEE MADE MONEY OF WHATEVER TYPE IN THIS B USINESS OF ACCOMMODATION ENTRIES AT ALL. ASSESSING OFFICER HAS NOT EXAMINED FROM THE PARTIES TO WHOM BILLS WERE ISSUED AS TO WHETHER THEY WERE ACCOMMODATION BILLS AND WHETHER P ARAG MEHTA WAS INVOLVED OR WHETHER ALLEGED RECIPIENT OF ACCOMMODATION ENTRIES KNEW PARAG MEHTA. IN ALL THE SUBSEQUENT STATEMENTS AND CORRESPONDENCES MADE BY SANJAY SONAWANI, HE DENIED THE ROLE OF PARAG MEHTA. THUS, THE ISSUER OF ENTRIES DENIED THE ROLE OF ASSESSEE A ND ACCEPTORS HAVING NEVER ADMITTED THAT HE WAS INVOLVE D, THERE CAN BE NO BASIS IN ALLEGATION THAT ASSESSEE WAS AT ALL INVOLVED AND ANY ADDITION BE MADE, SO AS TO MAKE ADDITION IN HAND OF ASSESSEE. IN CASE OF M/S. APEEJAY, THE BIGGEST PART Y TO WHOM ALLEGED BOGUS SALES BILLS HAVE BEEN CLAIMED TO BE I SSUED BY WSL, THE HONBLE PUNJAB AND HARYANA HIGH COURT HAVE HELD THAT THERE IS NO TRUTH IN STATEMENT OF SANJAY SONAW ANI OF HAVING ISSUED BOGUS BILLS WHEN ALL THE MATERIAL AS STATED IN THE BILLS WERE NOT FOUND IN THE PREMISES OF M/S. AP EEJAY AND IT BEING A REPUTED WELL KNOWN SCHOOL COULD NOT HAVE DEALT IN OBTAINING BOGUS BILLS. IN CASE OF M/S. APEEJAY EDUC ATION ITA NOS.1643 TO 1649 & 2507 TO 2513/MUM/15 A.YS. 05-06 TO 11-12 (SHRI PARAG V. MEHTA) PAGE 14 SOCIETY VS. ACIT IN ITA NOS.712 TO 714 (ASR)/2014 & OTHERS, WHEREIN ITAT AMRITSAR BENCH HAS ANALYSED EACH AND E VERY STATEMENT OF SANJAY SONAWANI AND HELD AT PAGE NO.10 9 PARA 28 AS UNDER: 'IT IS EVIDENT THAT ALL THE FOUR STATEMENTS OF SHRI SANJAY SONAWANE ARE RIDDLED WITH DISCREPANCIES. THE RE ARE ASSERTIONS AND RETRACTIONS, NOT ONLY ON ONE POI NT BUT WITH REGARD TO NUMEROUS ISSUES. HE HAS BEEN CONSISTENTLY AND CONTINUOUSLY SHIFTING HIS STAND. H E IS THUS, DECIDLY A VERY SHIFTY AND INCONSISTENT PERSON AS A WITNESS.' AT PARA 30 OF THIS ORDER, AMRITSAR TRIBUNAL HELD AS UNDER: 'HE INDULGED IN DOUBLE SPEAK IN ALL HIS STATEMENT, LEADING TO THE INEXORABLE CONCLUSION THAT HE WAS NOT A TRUT HFUL MAN AS WITNESS AT ANY STAGE AND IS IMPOSSIBLE TO DE CIDE AS TO ON WHICH OCCASION HE WAS TRUTHFULL. HIS TESTI MONY IS NOT AT ALL WORTHY OF CREDENCE AND ACCEPTANCE AND HI S EVIDENCE HAS ERRONEOUSLY BEEN ACCEPTED BY CIT(A).' FURTHER ON MERITS, TRIBUNAL HELD AT PARA 71 OF THE ORDER THAT THE SOFTWARE THAT WAS PURCHASED FROM WSL WAS INSTAL LED ON THE SERVE OF M/S. APEEJAY AND THE SAID SERVER WAS I MPOUNDED BY DEPARTMENT A SURVEY PROCEEDINGS. FURTHER, AT PA RA 73, THEY HELD THAT THE NAMES OF WSL APPEARS IN THE SOUR CE CODE OF THE SOFTWARE. ALSO AT PARA 75, TRIBUNAL HELD TH AT THE EMPLOYEE OF APEEJAY, NAMELY, AMITARA MISRA HAS STAT ED ON OATH THAT SOFTWARE STOOD INSTALLED IN SERVE IMPOUND ED BY DEPARTMENT. ALSO THERE IS AN EXPERT REPORT CONFIRMI NG THE SAME FACT OF INSTALLATION OF SOFTWARE AT M/S. APEEJ AY. FURTHER, AT PARA 85 OF SAME ORDER, TRIBUNAL HELD TH AT ADDITION MADE ON SUSPICIOUS OR ALLEGED STATEMENT, I N VIEW OF ITA NOS.1643 TO 1649 & 2507 TO 2513/MUM/15 A.YS. 05-06 TO 11-12 (SHRI PARAG V. MEHTA) PAGE 15 DIRECT EVIDENCE PLACE ON RECORD TO THE CONTRARY, CA NNOT BE SUSTAINED. ALSO THE MONEY PAID BY APEEJAY TO WSL H AS NEVER BEEN RETURNED TO APEEJAY WHILE DEPARTMENT HAS SHOWN PROOF THAT MONEY PAID BY APEEJAY TO WSL WENT TO OTHER PAR TIES, IT SHOWS THAT TRANSACTION OF SANJAY SONAWANI AS A DIRE CTOR OF WSA IN STATEMENT STATING OF BOGUS ENTRIES CANNOT BE TRUSTED THAT TOO WHY PAYMENTS MADE THROUGH RTGS. SO, STATE MENT OF SANJAY SONAWANI HAS NOT BEEN RELIED BY CO-ORDINA TE BENCH, AMRITSAR AS DISCUSSED ABOVE. SO, FOLLOWING THE SAME ANALOGY, FIRST STATEMENT OF SANJAY SONAWANI CANNOT BE MADE BASIS FOR MAKING ADDITION IN QUESTION IN HAND OF AS SESSEE. MOREOVER, IN SUBSEQUENT STATEMENT, SAID SONAWANI HA S HIMSELF HAS RIGHTLY RETRACTED THAT ASSESSEE WAS NOT CONCERNED WITH ANY ACTIVITY WHATSOEVER OF WSL COMPA NY RUN BY SANJAY SONAWANI. FROM THE FACTS NARRATED ABOVE, WE FIND THAT ASSESSEE SIMPLY PROVIDED TABLE SPACE FOR RUNNI NG HIS BUSINESS TO SANJAY SONAWANI BEING DIRECTOR OF WSL. WITHOUT PREJUDICE TO THE FINDING OF GENUINE TRANSAC TION BETWEEN WSL AND M/S. APEEJAY, THERE IS NOTHING ON R ECORD TO SUGGEST THAT ASSESSEE WAS INVOLVED IN THE SAID TRAN SACTION IN ANY MANNER WHETHER BOGUS OR GENUINE. IN FACTS AND CIRCUMSTANCES, NO ADDITION IS WARRANTED IN CASE OF ASSESSEE. SAME IS DIRECTED TO BE DELETED. THIS TAKE CARES OF ISSUES RAISED IN CROSS APPEALS OF ASSESSEE AND REVENUE. 7. AS A RESULT, ASSESSEES APPEAL FOR A.Y.2005-06 I S ALLOWED AND REVENUES APPEAL FOR A.Y.2005-06 IS DISMISSED. ITA NOS.1643 TO 1649 & 2507 TO 2513/MUM/15 A.YS. 05-06 TO 11-12 (SHRI PARAG V. MEHTA) PAGE 16 8. SIMILAR ISSUE AROSE IN ASSESSEES APPEALS IN 1644/MUM/2015 FOR A.YS.2006-07 TO 2011-12 AND REVENUES APPEALS IN ITA NOS.2508 TO 25013/MUM/2015 FOR A.YS. 2006-07 TO 2011-12. FACTS BEING SIMILAR, SO F OLLOWING SAME REASONING, IMPUGNED ADDITION IN HAND OF ASSESS EE FOR ALL YEARS ON SAME LINE, ARE DIRECTED TO BE DELETED. 9. AS A RESULT, ASSESSEES APPEALS FOR A.YS. 2005-0 6 TO 2011-12 ARE ALLOWED AND REVENUES APPEAL FOR A.YS. 2005-06 TO 2011-12 ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE 26 TH DAY OF AUGUST, 2016. SD/- SD/- ( RAJESH KUMAR ) (SHAILENDRA KUMAR YADAV) CCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI: DATED 26/08/2016 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. / ASSESSEE 3. ! / CONCERNED CIT 4. !- / CIT (A) 5. )*+ ,--, , / DR, ITAT, MUMBAI 6. +12 34 / GUARD FILE. BY ORDER / , / , ,