ITO 26 (1) (4), MUMBAI V. JASPAL KAUR BHATIA, MUMBAI

ITA 2717/MUM/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0175 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-03-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 13-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V JUSTIN
• Assessee Lawyers: R S BINDRA
• Keywords: Search and seizure; Accommodation entries
• Section: 143(3); 148; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E, MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI C.N. PRASAD , JUDICIAL MEMBER ITA NO. 2717/MUM/2016 : A.Y : 2008 - 09 ITO - 26(1)(4), MUMBAI (APPELLANT) VS. SMT. JASPAL KAUR BHATIA ROOM NO. 328, BUILDING NO. 7, GTB NAGAR, MUMBAI 400 037. PAN : BGJPB7067C (RESPONDENT) APPELLANT BY : SHRI V. JUSTIN RESPONDENT BY : SHRI R.S. BINDRA DATE OF HEARING : 07/12/2017 DATE OF PRONOUNCEMENT : 05 /03/2018 O R D E R PER G.S. PANNU , AM : THE CAPTIONED APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF CIT(A) - 38 , MUMBAI DATED 2 0 .0 1 .201 5 , PERTAINING TO THE ASSESSMENT YEAR 200 8 - 0 9 , WHICH IN TURN HAS ARISEN FROM THE ORDER DATED 14 . 03 .201 4 PASSED BY THE ASSESSING OFFICER, MUMBAI UNDER SECTION 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. IN ITS APPEAL, REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - '1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETI NG THE ADDITION OF RS. 60,62,888/ - ON ACCOUNT OF ACCOMMODATION ENTRIES. 2 ITA NO. 2717/MUM/2016 SMT. JASPAL KAUR BHATIA 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN NOT CONSIDERING THAT DURING THE COURSE OF SEARCH AND SEIZURE ACTION U/S. 132 OF THE I. T. ACT, 1961 IN MAHASAGAR GROUP OF CASES ON 25.11.2009, SHRI MUKESH CHOKSI, THE KEY PERSON OF THE GROUP IN THE SWORN IN STATEMENT RECORDED, HAD ADMITTED THAT THE ASSESSEE IS BENEFICIARY OF ACCOMMODATION ENTRIES TO THE TUNE OF RS.60,62,888/ - . 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN NOT CONSIDERING THAT THE TRANSACTIONS IN SHARES ENTERED INTO BY THE ASSESSEE WITH MAHASAGAR GROUP WERE MERELY ACCOMMODATION ENTRIES, SINCE NEITHER ANY PAYMENTS WERE MADE FOR PURCH ASE NOR ANY SALES WERE EFFECTED. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN NOT CONSIDERING THAT THE ASSESSEE, DURING THE COURSE OF ASSESSMENT PROCEEDINGS, HAS NEITHER ASKED THE A.O. TO PROVIDE THE STATEME NT OF SHRI MUKESH CHOKSI NOR ASKED FOR CROSS - EXAMINATION OF SHRI MUKESH CHOKSI. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN NOT SEEKING REMAND REPORT FROM THE A.O. DIRECTING THE A.O. TO PROVIDE THE ASSESSEE OPPORTUNITY TO CROSS - EXAMINE SHRI MUKESH CHOKSI. 6. THE APPELLANT PRAYS THAT THE ORDER OF LD. CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3. THOUGH THE REVENUE HAS RAISED MULTIPLE GROUNDS OF APPEAL, BUT THE SOLITARY DISPUTE REVOLVES AROUND THE ADDITION OF RS.60,62,888/ - MADE TO THE RETURNED INCOME ON THE GROUND THAT IT REPRESENTS INCOME FROM UNEXPLAINED SOURCES. 4. IN BRIEF, THE RELEVANT FACTS ARE THAT THE ASSESSMENT OF ASSESSEE WAS REOPENED BY ISSUANCE OF N OTICE U/S 148 OF THE ACT ON 28.03.2013 ON THE BASIS OF INFORMATION WITH THE ASSESSING OFFICER THAT THE SEARCH ON MAHASAGAR GROUP OF CASES ON 25.11.2009 HAD REVEALED THAT ASSESSEE WAS A BENEFICIARY 3 ITA NO. 2717/MUM/2016 SMT. JASPAL KAUR BHATIA OF ACCOMMODATION ENTRIES PROVIDED BY THE SAID GROUP TO THE TUNE OF RS.60,62,888/ - . WHEN THE ASSESSEE WAS CONFRONTED AT THE TIME OF ASSESSMENT, SHE DENIED THE CLAIM AND ASSERTED THAT NO SUCH TRANSACTIONS WERE ENTERED INTO BY HER WITH MAHASAGAR GROUP OF CONCERNS. APART FROM OTHER THINGS, IN SUPPORT OF HER CLAIM, A SSESSEE ANNEXED HER BANK ACCOUNT STATEMENTS TO ENABLE THE ASSESSING OFFICER TO VERIFY HER CLAIM. THE RELEVANT DISCUSSION IN THE ASSESSMENT ORDER REVEALS THAT THE ASSESSING OFFICER MERELY PROCEEDED TO ADD THE AFORESAID AMOUNT TO THE RETURNED INCOME AS INC OME FROM UNEXPLAINED SOURCES ON THE BASIS OF A PURPORTED STATEMENT OBTAINED IN THE COURSE OF SEARCH ON MAHASAGAR GROUP OF CONCERNS THAT THE NAME OF THE ASSESSEE APPEARED AS ONE OF THE BENEFICIARY OF THE ACCOMMODATION ENTRIES. BEFORE THE CIT(A), ASSESSEE REITERATED HER SUBMISSIONS AND ASSAILED THE ASSESSMENT ON FACTS AND ALSO IN LAW. 5. WE FIND THAT THE CIT(A) IN POINTS (I) TO (XVII) IN PARA 4.4 OF HER ORDER HAS ANALYSED THE ENTIRE SITUATION AND CAME TO CONCLUDE THAT THE ASSESSING OFFICER ERRED IN TREATIN G THE AMOUNT OF RS.60,62,888/ - AS ACCOMMODATION ENTRIES IN THE HANDS OF THE ASSESSEE AND ACCORDINGLY, THE ADDITION HAS BEEN DELETED. IN SUM AND SUBSTANCE, THE CIT(A) UPHELD THE PLEA THAT NO SUCH TRANSACTIONS HAVE BEEN ENTERED BY THE ASSESSEE , WHICH WAS FU LLY SUPPORTED BY THE BANK STATEMENTS OF THE ASSESSEE. AGAINST SUCH A DECISION OF THE CIT(A), REVENUE IS IN APPEAL BEFORE US. 6. ALTHOUGH AT THE TIME OF HEARING, THE LD. DR HAS SUPPORTED THE STAND OF THE ASSESSING OFFICER, BUT THERE IS NO NEGATION TO THE FINDINGS ARRIVED AT BY THE CIT(A) THAT THERE IS NO EVIDENCE OF ASSESSEE HAVING CARRIED OUT ANY TRANSACTION REFLECTED BY THE ACCOMMODATION ENTRIES OF RS.60,62,888/ - WITH 4 ITA NO. 2717/MUM/2016 SMT. JASPAL KAUR BHATIA MAHASAGAR GROUP OF CONCERNS. FURTHER, AT THE TIME OF HEARING, THE LEARNED REPRESENTATI VE FOR RESPONDENT - ASSESSEE ALSO FURNISHED A PAPER BOOK WHICH CONTAINS VARIOUS MATERIAL RELIED UPON BY THE CIT(A) IN COMING TO HER CONCLUSION. 7. HAVING REGARD TO THE RIVAL STANDS AND THE ORDER OF THE AUTHORITIES BELOW, IN OUR VIEW, THE ASSESSING OFFICER H AS FAILED TO MAKE OUT A CASE THAT THE AMOUNT IN QUESTION REPRESENTED TRANSACTION S ENTERED BY THE ASSESSEE WITH MAHASAGAR GROUP OF CONCERNS. IN OUR VIEW, ONCE THE ASSESSING OFFICER HAD CONFRONTED THE INFORMATION AVAILABLE WITH HIM TO THE ASSESSEE, AND IT WAS DENIED BY THE ASSESSEE BASED ON HER BANK STATEMENTS AND OTHER EXPLANATIONS, IT WAS IMPERATIVE FOR THE ASSESSING OFFICE R TO COME OUT WITH POSITIVE EVIDENCE IN ORDER TO DEMONSTRATE THAT ASSESSEE HAD INDEED CARRIED OUT SUCH TRANSACTIONS WITH MAHASAGAR GROUP OF CONCERNS. THIS ASPECT IS CONSPICUOUS BY ITS ABSENCE AND, THEREFORE, THE CIT(A) MADE NO MISTAKE IN DELETING SUCH AN ADDITION. THUS, WE HEREBY CONFIRM THE ORDER OF CIT(A) AND REVENUE FAILS IN ITS APPEAL. 8. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 5 T H MARCH, 2018. SD/ - SD/ - (C.N. PRASAD) JUDICIAL MEMBER (G.S. PANNU) ACCOUNTANT MEMBER MUMBAI, DATE : 5 T H MARCH, 2018 *SSL* 5 ITA NO. 2717/MUM/2016 SMT. JASPAL KAUR BHATIA COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, E BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI