Pradeep Nimawat, Udaipur V. ITO, Ward-2(1), Udaipur

ITA 318/JODH/2023

• Counselvise Citation: [2024] 130 COUNSELVISE.COM (IT) 2745 (ITAT-JODHPUR)
• Duration Of Justice: 6 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 29-01-2024
• Assessment Year: 2015-2016
• Appeal Filed On: 20-08-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIDHI NAIR
• Assessee Lawyers: YOGESH POKHARNA; LD. A NFAC VIDE
• Keywords: Set aside; Business income; Unexplained cash credit; Salary income; Peak credit; Onus to prove; TDS; Source of fund; Non compliance; FORM 26AS; Bogus
• Section: 147; 148; 144; 142(1); 143(1); 68; 194A; 131; 69; 133(6); 44AD; 139(4); 80C; 194J

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR. BEFORE: DR. S. SEETHALAKSHMI, JUDICIAL MEMBER & SHRI RATHOD KAMLESH JAYANTBHAI, ACCOUNTANT MEMBER I.T.A. Nos. 317 & 318/Jodh/2023 Assessment Year: 2011-12 & 2015-16 Pradeep Nimawat 157, Krishnapura, Udaipur [PAN: ADZPN 1060 H] (Appellant) Vs. ITO Ward 2(1), Udaipur (Respondent) Appellant by Sh. Yogesh Pokharna, CA Respondent by Ms. Nidhi Nair, Sr. DR Date of Hearing 30.01.2024 Date of Pronouncement 05.03.2024 ORDER PER BENCH: These two appeals filed by assessee are arising out of the order of the National Faceless Appeal Centre, Delhi dated 22/06/2023 [here in after ‘NFAC’ ] for assessment years 2011-12 & 2015-16 which in turn arise from the order dated 22.12.2018 & 26.12.2017 passed under section 147 r.w.s 144 & under section 143(3) of the Income Tax Act, by AO. ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 2 2. Since the issues involved in the assessee’s appeal for both the assessment years are almost identical and are almost common, except the difference in figure, therefore, both these appeals were heard together with the agreement of both the parties and are being disposed off by this consolidated order. 3. At the outset, the ld. AR has submitted that the matter in ITA No. 317/Jodh/2023 may be taken as a lead case for discussions as the issues involved in the lead case are common and inextricably interlinked or in fact interwoven and the facts and circumstances of other cases are identical except the difference in the amount of penalty in other assessment year. The ld. DR did not raise any specific objection against taking that case as a lead case. Therefore, for the purpose of the present discussions, the case of ITA No. 317/Jodh/2023 is taken as a lead case. 4. Before moving towards the facts of the case we would like to mention that the assessee has assailed the appeal in ITA No. 317/Jodh/2023 on the following grounds; 1. That learned CIT ‘A’ has erred in confirming that assessment under section 144 and addition made by AO Rs. 1,70,00,070/- is in order. The assessment was made without providing proper opportunity ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 3 and considering full facts and circumstances of the case. Hence the order passed by learned AO be quashed. 2. That the Learned CIT ‘A’ has erred in confirming that addition of Rs. 1,69,01,000/- on account of cash deposited in Banks u/s 69 of the Act. The addition was made without following provisions of law and considering full facts of the case. Hence the addition made of Rs. 1,69,01,000/- be deleted. 3. That learned CIT ’A’ has erred in confirming Learned AO erred in disallowing deduction of Rs. 1,00,000/- as claimed u/s 80C of the IT Act. The disallowance is made without considering full facts of the case and providing proper opportunity. Hence the addition of Rs. 1,00,000/- be deleted.“ 5. Succinctly, the fact as culled out from the records is that the assessee is individual and derives income from construction business. The assessee filed ROI on 02.07.2011 declaring therein total income of Rs. 3,89,070/-. The assessee has shown income from business of Rs. 4,89,072/- and claimed deduction under chapter VI of Rs. 1,00,000/-. The ROI was processed u/s 143(1) of the Act on 29.12.2011. 5.1 Information has been received from Syndicate Bank, M. I. Road, Subhash Marg, C-scheme Jaipur in this case. Therefore, the a notice for providing information under section 133(6) of the Act was issued vide letter dated 12.12.2017 during the course of assessment proceeding for A. Y. 2015-16 in the instant case. The ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 4 ld. AO noted that huge cash aggregating to Rs. 1,23,26,000/- deposited during the financial year 2010-11 in the assessee’s bank account no. 84501010007333 at Syndicate Bank, Udaipur. Further as per information gathered from ITS details it is noticed that cash aggregating to Rs. 45,75,000/- also deposited in the assessee’s bank account no. 7721130000000 at Oriental Bank of Commerce, Udaipur. On perusal of relevant documents available on record, it was noticed that the assessee has shown income from business of Rs. 4,89,072/- showing that regular books of account of business are not mentioned. “Considering all these corroborative evidence, it is evident that cash amounting Rs. 1,23,26,000/- has been deposited on various dates in assessee's current account No. 84501010007333 at Syndicate Bank, Udaipur and cash aggregating to Rs.45,75,000/- also deposited in the assessee's bank account No.7721130000000 at Oriental Bank of Commerce. Udaipur. The source of the cash deposits remains unexplained in view of income declared by the assessee and also books of accounts not maintained by the assessee. In view of the above stated facs, it was reason to believe that the sum of Rs. ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 5 1,69,01,000/- chargeable to tax has escaped assessment for the A.Y. 2011-12 within the meaning of section 147 of 1.T. Act, 1961. 5.2 Since the income chargeable to tax has escaped the assessment, proceedings under the provisions of section 147 of the I.T. Act, 1961, were initiated and notice u/s. 148 of the I.T.Act, 1961 was issued by the DCIT, Cirele-2, Udaipur after according necessary approval of Pr.Commissioner of Income-tax, Udaipur vide his office letter No.3587 dated 15.03.2018 which was served upon the assessee through email and speed post. Subsequently, notice u/s. 142(1) alongwith a questionnaire vide dated 13.08.2018 were issued to the assessee and sent through email and speed post, asking the assessee to furnish relevant details, certain explanation and supporting documentary evidences. Simultaneously, the requisition of information under the provisions of section 133(6) of the Income Tax Act, 1961 has been pursued from various bank branches in the ease of the assessee. But, in response to the notice u/s 142(1) issued to the assessee, nobody attended nor replied. ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 6 5.3 However, for sake of convenience and in the interest of natural justice, another notice as 142(1) issued on 29.10.2018 giving further opportunity of being heard and accordingly. requested to furnish the reply on or before 05.11.2018. The assessee was also requested to show cause that in case of failure to avail of this last and final opportunity of being heard and of in making compliance of notices/questionnaire issued to him earlier and in case of non compliance of this notice/part compliance of this notice, as to why assessment in the case of assessee may not be completed as an ex-parte assessment under the provisions of section 144 of the IT Act.1961 and the assessee was required to show cause as to why he may not be taxed as per the provisions of IT Act, 1961 on the basis of details/information and material available with this office. However, no compliance has been made by the assessee of such notices. 5.4 The assessee was requested to submit the details of cash deposited, genuineness of transactions, source of fund and relevant supporting evidences in respect of particulars of income and other information available on record but the assessee has not ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 7 replied the same. The return of income filed by his personal ID and digitally signed. The digital signature must be obtained by assessee after submitting required documents of identity and further necessary verification. All the related transactions appeared in his name or his bank account and his signature were made on the relevant documents and his documents of identity used for opening of bank accounts, Since the assessee neither attended nor submitted any reply. This shows that the assessee has nothing to say but to accept the findings as pointed out on the basis of documents and information available on record. 5.5 The ld. AO noted that the assessee has been allowed more than sufficient time and adequate opportunities of being heard and to defend his case by explaining the nature and source of cash deposited in his bank accounts, referred to above, the assessee has not furnished his explanation in regard to nature and source of cash deposited in his bank accounts. From the s of the case elaborately discussed above that the assessee has been provided with more than sufficient time and adequate opportunities of being heard/defend his case by furnishing nature and source of cash ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 8 deposits in bank accounts, even upto the last few days before the date of time barring for completion of the assessment in the case of the assessee but the assessee did not bother to furnish even a single reply/submission. As is evident from the facts of the case of the assessee that since inception of proceedings in the case of the assessee, the assessee totally remained non co-operative towards furnishing requisite details/information/clarification and explanation sought for from time to time. The case of the assessee is time barred one and the limitation for completion of assessment in this case is expiring on 31.12.2018 as such the undersigned has left no alternate but to complete this assessment as an ex-parte under the provisions of section 144 of the I.T. Act, 1961 on the basis of details/material/information and supporting documentary evidences available with ld. AO. During the course of assessment proceedings, it is noticed that total cash of Rs.1.23.26,000/- deposited on various dates in assessee's current account No.84501010007333 at Syndicate Bank, Udaipur and cash aggregating to Rs 45,75,000/- also deposited in the asseesee's bank account No.7721130000000 at Oriental Bank of Commerce. Udaipur as per information available on record and further ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 9 information gathered from respective banks. The assessee was requested to submit the details of cash deposited, genuineness of transactions, sources of fund and relevant supporting evidences but he had shown ignorance about these cash deposits. Since the cash has been deposited in the bank accounts of the assessee, therefore, onus is on him to explain source of cash deposits and prove genuineness of the same but the assessee has failed to discharge his onus. But the assessee has not furnished any reply / explanation in this regard. On the basis of facts and circumstances, it is evident that the assessee has failed to discharge the burden of proof regarding cash deposits in the Bank accounts. In absence of any evidence and failure to produce any reply, details or documents, the total cash deposited of Rs. 1,69,01,000/- in the bank accounts is held to be unexplained credit from undisclosed sources within meaning under the provisions of section 68 of the Income Tax Act, 1961. During the course of assessment proceedings, it is noticed that the assessee has claimed deduction of Rs.1,00,000/-under chapter VI-A in the return of income but no details or documentary evidences furnished in this regard. Therefore, Rs. 1,00,000/- is disallowed and added to ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 10 the total income for the year under consideration treating bogus expenses/investment for claiming deduction. 6. Aggrieved from the order of AO, the assessee preferred an appeal before the ld. CIT(A). Apropos to the grounds so raised the relevant finding of the ld. CIT(A) is reiterated here in below: “5.0 I have perused the assessment order and the appeal documents filed by the assessee. In this case the appellant had file the ROI on 02.07.2011 declaring total income of Rs. 4,89,072/-. The AO noted that the appellant had made cash deposits of Rs. 1,23,26,000/- & Rs. 43,75,000/- in Syndicate Bank and Oriental Bank of Commerce respectively. In the assessment proceedings, the AO provided several opportunities to explain the source of such cash deposits & to produce the documentary evidence to check the authenticity of the deduction claimed. However, no reply or submissions was filed by the appellant. In the absence of any relevant reply the AO treated the sum of Rs. 1,69,01,000/- as unexplained cash deposit along with the claim of deduction of Rs. 1,00,000/- as income. 6.0 In the appeal proceedings, the appellant was provided with adequate opportunities to make the necessary submissions in support of his claims. However, no response has been made by the appellant. The onus of explaining the source of cash deposit and deduction claimed in the impugned year, to the satisfaction of the AO, rested solely on the assessee. In absence of any explanation and supporting evidence, I believe the action of the AO in bringing to tax, the cash deposit of Rs. 1,69,01,000/- & Rs. 1,00,000/- as unexplained deduction, cannot be faulted. Hence, the addition of Rs. 1,70,01,000/- is upheld. In result, the appeal is dismissed.” 7. As the assessee did not find any favour from the order of the ld. CIT(A), the assessee has preferred the present appeal before this Tribunal on the ground as reproduced hereinabove. To support ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 11 the various grounds so raised by the ld. AR of the assessee, has filed the written submissions and the same is reproduced herein below. 1. Appellant is an individual assessee. 2. Appellant is in private service . 3. On behalf of appellant someone else filed his return of income by misusing his KYC documents on 02.07.2011 declaring income of Rs 3,89,070/-. The Income declared is from Business and Profession Rs 4,89,072/-, and claimed deduction u/s 80C of Rs 1,00,000/- 4. Assessee’s case is reopened u/s 147/148 in view of large cash deposits/deposits in Bank Account No 845010007333 at Syndicate Bank and Rs 45,75,000/- in Bank Account No 77211300000000 at Oriental Bank of Commerce Udaipur. 5. However due to frustration and depression that despite his appearing personally before Department and submitting all required documents he could not get any positive reply and huge addition of Rs 76,55,297/- has been made. Further in view of his small income he is only pulling on his life with lot of struggle, he could file reply to various notices and assessment was completed with following huge addition u/s 144 vide order dated 22.02.2018 : -Income on account deposit in Bank u/s 68- Rs 1,69,01,000/- -Disallowance of Rs 1,00,000/- of deduction claimed u/s 80C. 6. Being aggrieved by these addition first appeal was filed before CIT Appeal which has following grounds : 1. That the Learned AO has erred in completing assessment under section 144. Learned AO has not provided sufficient opportunity and passed order with out appreciating facts in proper perspective, hence order passed is bad in law and be quashed. 2. That the learned AO has added Rs 1,69,01,000/- ofcash deposited by the appellant in Syndicate Bank andOriental Bank of Commerce without giving any reasonand following provision of law , without considering factsand circumstances of the case and providing fullopportunity. The addition made is without fullyconsidering facts, ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 12 circumstances of the case andproviding full opportunity and following provision of law ,hence the addition made be deleted. 3. That the Learned AO has erred in disallowingdeduction of Rs 100000 claimed by the appellant undersection 80C without providing sufficient opportunity andfully understanding facts and circumstances of the caseHence the disallowance of Rs 100000 made by 7. However due to financial constraints/reasons,appellant could not retain consultant, hence no submission could be made before CIT A and CIT A confirmed the aforesaid addition again. 8. Being aggrieved by these present appeal is filed, which has following grounds : 1. That Ld CIT ‘A’ erred in confirming that assessment under section 144 and additions made by the AO Rs 1,70,00,070/- is in order. The assessment was made without providing proper opportunity and considering full facts and circumstances of the case. Hence the order passed by the Learned AO be quashed. 2. That the Learned CIT ‘A’ has erred in confirming addition of Rs. 1,69,01,000/- treating the cash deposited in banks as Cash Credit u/s section 69 of the Act. The addition was made without following provisions of law and considering full facts of the case. Hence addition of Rs 1,69,01,000/- made be deleted, 3. That Learned CIT ‘A’ has erred in confirming disallowance of claim of Rs. 1,00,000/- made u/s 80C of the I T Act . The disallowance is made without considering full facts of the case and providing proper opportunity. Hence the addition of Rs 1,00,000/- be deleted. OUR SUBMISSION 1. IT is respectfully submitted that all additions in this case is made on the basis of fraudulent return filed by Shree Bharat Bomb by misusing KYC of Sh Pradeep Nimawat. In view of above, we are submitting in following to establish that it is Bharat Bomb who misused the ID Proof of appellant, opened various bank account, various trading concern and obtained loan and bought properties in his name. Hence instead of submitting on each ground of appeal, we request your honour to make common submission covering all grounds of appeal. ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 13 2. We are submitting following documents out of which maximum were submitted during assessment proceedings : a) Copy of Order of ED b) Copy of Statement Recorded before ED/CBI of Bharat Bomb c) Copy of Note on Bharat Bomb’s Statement d) Copy of Reasons Recorded in case of Bharat Bomb by the AO for reopening of Case u/s 147. e) Copy of Assessment Order of Bharat Bomb For A Y 2011-12 f) Copy of Order in case of Bharat Bomb for in which it is mentioned that case is reopened only to meet contingency of adverse decision of higher authorities in case of Nitin Parikh and Pradeep Nimawat for A Y 2013-14. g) Copy of Assessment Order of Bharat Bomb for AY 2016-17 in which Bharat Bomb’s confirmation of fact that he misused name of assessee for his own benefitand it is he who operated these bank accounts is recorded. h) Copy of CIT Appeal order in case of Deepak Wahi in which in on similar facts and circumstance it was held that Mr. Bharat Bomb operated these account and additions cannot be sustained in the hands of assessee. i) Copy of ITAT Order of Honourable Jodhpur ITAT in ITA/263/Jodhpur/2023 and ITA/264/Jodhpur/2023 in case of Nitin Parikh in which additions made in the hands of assessee is deleted which were made on similar facts and circumstances. j) Copy of Debt Recovery Tribunal Order in case of Canara Bank vs M.s Shrinath Traders (sole Proprietor Pradeep Nimawat) k) Copy of Statement of Pradeep Nimawat Recorded before ED/CBI l) Copy of Reasons Recorded for Assessment Year 2011-12 3. We are submitting back ground of the case as under : GENERAL In the month of Feb –March 2016 big fraud of Rs 2000 crore was unearthed and several persons including DGM, Branch Manager and officers of Syndicate Bank and one chartered accountant Mr. Bharat Bomb and few of his colleagues were arrested by CBI and ED. Large number bank accounts operated by these persons were attached . CA Mr. Bharat Bomb was key person and master mind of this fraud. ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 14 Mr. Bharat Bomb opened large no of bank accounts by using KYC documents of various person ( his clients, friends and staff ) either taking them into confidence, with or without their knowledge and also formed no. of LLPs, Partnership Firms, Private Limited Companies. He has also obtained VAT Registration for many of these firms. His used these entities for creating fictitious turnover in these entities to obtain higher bank loans and other credit facilities and round tripping of transactions and to maintain credit flow cycle. System of obtaining fictitious bank credit/loans are as under: a) Get registered one Proprietorship or Partnership Firm, LLP, Pvt Ltd Company using fake/photo shopped PAN Card and Other Identification Card of his client, relatives and known person, without their knowledge. b) With the help interested officers of the bank , credit limit by way of home loan, business loan, bill discounting facilities was got sanctioned against securities of fake title deed of properties, letter of credit , insurance policies etc. c) The fund so received is utilised for his own use and when repayment liabilities starts, another firm has been created using the method stated above and fresh credit limits were got in that firm’s name . d) As size of turnover and income are major criteria for sanctioning credit facilities, fictitious income were raised by way of providing salary from these dummy concerns , declaring turnover vis a vis higher profits in various business and declaring income under section u/s 44AD, etc. e) In many cases huge FDR were created by using loan/credit proceed of these dummy firm , which in turn was used again to obtain overdraft facilities against FDR, resulting in higher interest income in Form 26AS of that person which was reduced by the interest paid on overdraft obtained in that’s person name. f) In order to save tax liability of these person in whose name such returns are filed fake deduction u/s 80C was also claimed and refund recd is credited in the fake accounts maintained in their name. Thus many companies and firms was used by him for round tripping of proceeds of credits obtained from bank. He also used various means to inflate income of these persons by providing professional receipts, higher interest receipts on FDR made ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 15 in the name of these persons from out of proceed of loans and them refinancing the same by obtaining bank overdrafts. Further he used these KYC documents in getting digital signature of these persons, which in turn was used by him and his staff for validating Income Tax Return and Companies Act Return. He has also filed return of these persons disclosing income from interest (not fully) , by setting interest on OD against FDR against this income, and using 44AD mode for declaring business income and used interest paid on these fictitious house loan as an allowable deduction. He used all these Fake bank accounts for obtaining loans from bank by using fabricated title deed of various existing and non- existing properties, discounting of cheques of non-existing government departments and private parties, discounting fake Letter of Credit of various banks. Besides this he also created large no of sale deed of immovable properties for high values (though incomplete) and raised housing loans against this. He used all funds so generated in financing various projects and persons and maintaining aforesaid repayment cycle. Further he made large no of fixed deposits in the name of various individual and raised overdraft facilities against them. This entire scam was carried out with the help of bank officers. It is respectfully submitted except few person, all persons whose KYC was used by him are unaware about these operations and bank account of these persons were operated by the staff of Bharat Bomb. Further he claimed refund of Tax Credit so generated on these fictitious incomes, and deposited refund in the same bank account in which all these transactions are made. However as soon as CBI and ED stepped in, they called all these person’s whose account were used by Mr. Bharat Bomb for interrogation and in his confession before CBI/ED Mr. Bharat Bomb agreed that by using KYC of these persons he opened and operated these accounts. Further after making preliminary inquiry from these persons CBI/ED filed an FIR against Mr. Bharat Bomb and Bank ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 16 Officers. Lateron Charge sheet is filed against him and various bank officers. Presently ED and CBI both are pursing cases against these banks. SPECIFIC TO THE APPLELLANT 1. Mr. Bharat Bomb opened following Bank account by using KYC of appellant: a) Syndicate Bank Udaipur Bank Account No84501010007333 b) Oriental Bank of Commerce : Bank Account :No. 7721130000000 2. On Page 36 of PO of ED ( Paper Book Page No ) contains list of partial fake firms used and formed by Shree Bharat in the name of Appellant Bharat , which is as under : Row 4 of table : - M/s Rameshwaram - M/s Shri Ram Exim Trade, - M/s Nakoda Construction Co - M/s Shri Nath Exim Traders - M/s Kama Coloniser - M/s Perfect Construction 3. On Page 50 of PO of ED/CBI (Paper Book Page No in RUD 14 ) CA Bharat Bomb provided details of fake firms, which was used him , which is as under : “ ii. That the names of fictitious firms/non-existing firms which were created for opening fake accounts and making fraudulent transactions are Janhavi Material Trading Company (P) Ltd,Rajdarbar Material Trading Company (P) Ltd, Raj Shikhar Trading Enterprises LLP,Raj Prakhar Enterprises Trading LLP, Raj Prakhar Material Trading LLP,Bluesol Crete LLP, Janhavi Material Trading LLP, Raj Darbar Material Trading LLP, Urvashi Enterprises ,Shreenath Material Supplier, Azad Const Works, TUFA,Jai Shri Krishna Exim Traders,Sai Copper House ,Sai Construction, Kothari Enterprises, Shree Sai Metal Industries, Ram Narayan Exports, Aravali Material Trading,Raj Prakhar Enterprises,Urvashi Material Trading Co (P) Limited, Ashok Material Suppliers ,Naveen Construction Co,Shubh Metal Industries,Everest Construction & Civil Works, Jai Shankar Impex, ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 17 Arihant Financial Services,Fair Deal Trade Industries,Jain Traders,Keshariya Metal Industries , Lucky Trade Industries,Raj Minerals,Janhavi Construction Co, Rameshwaram Material Trading Co.(P) Ltd, Nakoda Construction Co., Shri Ram Exim Trade, Shri Nath Exim Trade, Laxmi Trading Co., Radhika Enterprises, Friends Timber, Babel Construction, Target Handi Crafts, B.K. Builders, Deepak Traders, VK Enterprises, Kiran Buildtech, Urvashi Minerals, Narayan Bhil, BMR Construction, Tanvi Digitech etc. “ 4. In response to notice from CBI/ED, Mr. Pradeep Nimawat informed that these account were not opened or operated by him and CBI may take whatever action regarding this, he has no objection. 5. As remaining other bank accounts haveno balance, ED could not recover any amount from those accounts. 6. It is respectfully submitted that Learned AO even after coming to knowledge of facts and submission of the appellant that these bank accounts are opened and operated by Shree Bharat Bomb, despite having ample time at his command has not made inquiry from the Bank and obtained specific information about the correct position that whatever appellant stated is correct or not and of cross examination of his so called employer despite having ample time, also to fail verify the fact that appellant is not doing service there. 7. It is further respectively submitted that Salary Income , Interest Income is added on basis of entries found in Form 26AS, on which appellant has no control. 8. It is further respectively submitted in similar case of Shree Deepak Wahi PAN No AACPW6790R, learned CIT (A) of NefAC deleted various addition with following remark : a) Regarding Professional Receipt : 4.2. I have considered the facts of the case, assessment order and appellant’s submissions. The AO noted that ITS data pertaining to F.Y. 2015-16, relevant to A.Y. 2016-17, showed that the assessee received income at Rs.24,75,000/- on account of fees for professional & technical services from M/s Rajshikhar Material Trading LLP, and the TDS on such amount was deducted at Rs.2,47,500/- u/s 194J of the Act. The assessee stated, before the AO, that he did not provide any professional and other consultancy to the aforesaid firm nor did he receive any income from anyone, during the year, on this count. However, reply furnished by the assessee did not find favour of the ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 18 AO who mentioned that income so credited was reflected on assessee’s own PAN and his own bank accounts which were opened by the assessee by using his personal IDs. Accordingly, the AO made the addition of Rs. 24,75,000/- to the total income of the assessee under the head ‘Income from Business or Profession’ for the year under consideration. In the written submissions uploaded on the ITBA Portal, the appellant has reiterated the same claim, as placed before the AO, that he did not provide any professional and other consultancy to the aforesaid firm nor did he receive any income from anyone, during the year, on this count. The appellant has contended that merely because assessee’s Form 26AS shows certain receipts do not mean that the same pertained to him. The appellant gave details of his bank accounts which were shown in the ITR filed for the AY 2016-17. The appellant has submitted that Mr. Bharat Bomb, who file his ITR and good friend, has misused his documents like driving licence, Aadhar, PAN etc. and fraudulently used the assessee’s name and PAN No. for opening bank account to defraud banks. The appellant has furnished copy of FIR lodged by the ED/CBI against Mr Bharat Bomb wherein his confessional statement is recorded asserting that the name of persons whose KYC were used for opening fake firms, opening bank accounts and doing fake transactions are his family members. The appellanthas claimed that he submitted all details before the AO and requested him to call Mr. Bharat Bomb for cross examination; however no action was taken by the AO. The appellant has further stated that Mr. Bharat Bomb already arrested by CBI/ED and various inquiries are going on against him and he himself confessed that he misused KYC documents in opening various bank fraudulent bank accounts in assessee’s name. The appellant has further submitted that he filed a civil suit against Syndicate Bank, whose officer allowed these fraudulent activities. The appellant has submitted that he has not claimed credit for Tax Deducted at Source in his return of income. The appellant has vehemently denied rendering any professional service to anyone including Rajshikhar Trading Co LLP. On careful consideration of the facts of the case,appellant’s submissions and details brought on record by the appellant, I am inclined to agree with the appellant’s claim. From the facts and details brought on record, it is clear that Mr. Bharat Bomb misused name / KYC for opening fake firms, opening bank accounts and doing fake transactions in the name of appellant. This fact gets support from the confessional statement of Mr. Bharat Bomb recorded before the ED/CBI, copy of which is supplied by the appellant in the submissions ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 19 filed. This very fact was before the AO, however, he did not give much importance because account opening Form bears signature of the assessee and KYC details pertained to the assessee. Secondly, Form 26AS of the assessee showed details of amount credited by M/s Rajshikhar Material Trading LLP and details of TDS deducted thereon. 4.2.1. As regards the AO’s concern that account opening Form bears signature of the assessee and KYC details pertained to the assessee, I find that once it is proved that Mr. Bharat Bomb misused name / KYC for opening fake firms, opening bank accounts and doing fake transactions, including the name and details of the appellant, there remains no doubt that the appellant was also a victim of wrong doing of Mr. Bharat Bomb. Not a single and independent concrete evidences has been brought on record, by the AO, to prove that the appellant himself visited the bank branch and put his signature on Form for account opening. In a present scenario, where technology has the power to do many things, therefore, using someone’s signature is not exceptional. Facts and details indicating that, in the present case, Mr. Bharat Bomb has misused name / KYC, including signature of the appellant, to open bank account. Moreover, I find that the AO failed to take note of the fact that the appellant has filed civil suit before the Court, against the Syndicate Bank, for allowing Mr. Bharat Bomb to open bank account, in appellant’s name, by using his KYC details without his consent. It may also be noted that if the Bank officials have been claiming that the bank account in question was opened by the appellant himself, in that case also, the AO should have provided an opportunity to the appellant to cross examine bank officials. Thus, the AO violated the principle of natural justice. The Hon’ble Supreme Court in the case of Andaman Timber Industries 281 CTR 241 held that not allowing assessee to cross-examine witnesses, by adjudicating authority, though statements of those witnesses were made as basis of impugned order, amounted in serious flaw which made impugned order nullity as it amounted to violation of principles of natural justice. The precise observation of the Hon’ble Supreme Court is as under:- “Not allowing the appellant to cross-examine the witnesses by the Adjudicating Authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity inasmuch as it amounted to violation of principles of natural justice because of which the assessee was adversely affected. ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 20 It is to be borne in mind that the order of the Commissioner was based upon the statements given by the aforesaid two witnesses. Even when the assessee disputed the correctness of the statements and wanted to cross-examine, the Adjudicating Authority did not grant this opportunity to the assessee. It would be pertinent to note that in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. Appellant had contested the truthfulness of the statement of these two witnesses and wanted to discredit their testimony for which purpose it wanted to avail the opportunity of cross-examination. That apart, the Adjudicating Authority simply relied upon the price list as maintained at the depot to determine the price for the purpose of levy of excise duty. Whether the goods were in fact sold to the said dealers/ witnesses at the price which is mentioned in the price list itself could be the subject matter of cross-examination. Therefore, it was not for the Adjudicating Authority to presuppose as to what could be the subject matter of the cross-examination and make the remarks as mentioned above.” Considering the facts of the case, I have no doubt that in the present case; the bank accounts were opened by Mr. Bharat Bomb fraudulently, in the name of the appellant, by misusing his name/signature and KYC without the appellant’s consent. 4.2.2. As regards the AO’s concern that assessee’s Form 26AS showed amount credited by M/s Rajshikhar Material Trading LLP and details of TDS deducted thereon, I find that there are numerous judicial precedents wherein it has been specifically held that no addition can be made merely on the basis of entries reflecting in the Form 26AS. Form 26AS is a statement that provides details of any amount deducted as TDS or TCS from various sources of income of a taxpayer. Because Form 26AS is readily available with the AO, it was overlooked that mistakes often creep into this document, solely because of errors committed by other people, not the assessee. Tax deduction may go wrong, if deductor fails to deduct or gives wrong PAN number of deductee orTDS deducted on the receipts which do not pertain to particular assessment year. But it has been seen that in number of instances, due to wrong deduction of TDS for whatever reasons, the assessee suffers. Thus, it cannot be said that entries reflecting in the Form 26AS are fool proof every time. Hence, the ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 21 judiciary has been straight in pointing that the revenue cannot raise any demand on the basis of difference between the auto populated amounts on income tax portal and GST portal without further examining the reasons for such difference. The Allahabad bench of the CESTAT in Kush Constructions v. CGST [2020] 118 taxmann.com 164, in the context of the demand raised on the basis of difference found in figures reflected in ST-3 returns and Form 26AS, held that the Revenue cannot raise the demand on the basis of such difference without examining the reasons for said difference and without establishing that the entire amount received by the appellant, as reflected in said returns in the Form 26AS, being consideration for services provided and without examining whether the difference was because of any exemption or abatement, since it is not legal to presume that the entire differential amount was on account of consideration for providing services. Likewise the Kolkata Bench of the ITAT in Mercury Car Rentals (P.) Ltd. v. Dy. CIT [2019] 71 ITR (Tri.) (SN) 78 held that based on Form 26AS alone, no additions can be made. This can at best be a starting point for necessary verification but it cannot, on standalone basis, justify the impugned addition. The Hon’ble Chennai Bench ‘A’ in the case of P. K. Rajasekar vs. ITO 2016] 74 taxmann.com 151 (Chennai - Trib.) held that where assessee claimed that there was wrong credit entry by payer-client in Form 26AS, Assessing Officer had to examine its genuineness. Thus, from ratio laid down in the above judicial precedents, it is clear that no addition can be made simply on the basis of entries reflected in the Form 26AS. It is the duty of the AO to make further verification where the assessee disputes the entries reflecting in the Form 26AS and only after verification, if he finds any discrepancy in assessee’s claim, than only he can make any addition. Here, I may refer to the decision of the Hon’ble High Court of Delhi in the case of Court On Its Own Motion vs. CIT [2013] 31 taxmann.com 31 (Delhi) wherein the Hon’ble Court considered, on its own and in response to a Public Interest Litigation, difficulties faced by assessees after computerization and central processing of income tax returns and issued seven mandamus. These seven mandamus include the issues relating to entries reflecting in the Form 26AS and wrong deduction of ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 22 TDS by the Deductor. Thus, it has been concerns of the court that regarding processing of returns by CPC and in certain cases there has been issues, particularly issue of wrong deduction of TDS and inclusion of wrong receipts in the form 26AS. Thus, the Court specifically held that the assessee must not suffer from these technical issues and the same should be solved promptly. In the instant case, the AO has not carried out any independent inquiry with M/s Rajshikhar Material Trading LLP regarding professional services provided by the appellant to it. It is not the case that M/s Rajshikhar Material Trading LLP confirmed the fact of rendering professional services provided by the appellant to it and the amount credited /paid by it against such services. In view of the facts discussed and judicial precedents cited supra, it isheld that the AO is not justified in holding that the bank account, whereinamount of Rs. 24,75,000/- credited by M/s Rajshikhar Material Trading LLP onaccount of fees for professional & technical services, is belonged to theappellant. The appellant has satisfactorily proved that this bank account wasnot opened by him and only his name and KYC were used by Mr. Bharat Bombfor opening this bank account. Thus, amount credited in this bank accountdoes not represent the appellant and the addition made at Rs. 24,75,000/- isdirected to be deleted. Ground No. 1 raised by the appellant, regarding thisissue, is allowed. b) Regarding addition in Interest Income on Account of amount reflected in Form 26AS : 5.1 I have considered the facts of the case, assessment order and appellant’s submissions. The AO noted that ITS data pertaining to F.Y. 2015-16 relevant to A.Y. 2016-17 showed that the assessee received the interest income on FDRs at Rs.11,71,206/- and the TDS thereon at Rs.1,14,292/- u/s 194A of the Act. The assessee stated, before the AO, that he had not opened any FDR account in Canara Bank and Syndicate Bank and he further stated that he had no relation to aforesaid accounts. However, the AO was not convinced with the assessee’s reply. The AO stated that information about every credit of income and tax deducted thereon was communicated to the assessee electronically from time to time and the assessee neither filed any complain nor informed the appropriate authority if the act was fraudulently done by others on behalf of the assessee on PAN based ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 23 account. In the written submissions uploaded, on the ITBA Portal, the appellant has submitted that as these accounts were not opened by the appellant himself, then his mobile number and email-id also must not be there and as communication is only made though registered mobile and email id, hence there was nooccasion for appellant to have information regularly on real time basis. The appellant has further submitted that he only came to know about these accounts only after CBI/ED issued notice to him as he has no connection with Syndicate Bank and Canara Bank. He came to know about these accounts after receiving a letter dated 07/04/2016 from Vigilance Department of Syndicate Bank asking him about various bank accounts. The appellant claimed that in letter to the bank, he denied about opening of any account in Syndicate Bank and requested bank to take strong legal action as these werefake accounts. To support his claim, the appellant has furnished copy ofBank’s letter and appellant's letter filed before the Manager (Vigilance),Syndicate Bank, Udaipur on 20/04/2016. The appellant has further submittedthat the main culprit (Mr. Bharat Bomb), who did this, was already undercustody of CBI/ED hence he could not make complain at that time, consideringthat as it is fault of bank and bank will take all action against them. Theappellant has further submitted that Mr. Bharat Bomb himself confessed beforeED/CBI that all these accounts were opened by him for manipulating hisvarious bank related transactions and obtaining large bank funds/loan. Theappellant further submitted that he had not claimed credit for Tax Deducted atSource in his return of income and he had no option to get his Form 26ASrectified from NSDL as there was no such mechanism in existence till date.The appellant has further submitted that he has already stated, in hisstatement recorded before ED /CBI, that all bank accounts opened inSyndicate Bank and Canara Bank did not belong to him and he had notoperated the same at any stage and requested ED /CBI to recover whateverbalance these accounts had. Considering the facts of the case and detailsbrought on record by the appellant, I am inclined to agree with the appellant’sclaim. As in the instant case, it is already established that Mr. Bharat Bomb misused name / KYC for opening fake firms, opening bank accounts and doing fake transactions. These facts get support from the confessional statement of Mr. Bharat Bomb, recorded before the ED/CBI, copy of which is supplied by the appellant in the submissions. This very fact was well before the AO,however, he did not give much importance by stating that information about every credit of income and tax deducted thereon was communicated to the ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 24 assessee electronically from time to time and the assessee neither filed any complaint nor informed the appropriate authority if the act was fraudulently done by others on behalf of the assessee on PAN based account. In thisregard, it is noticed that these bank accounts were opened by misusing the appellant’s name and KYC details, obviously culprit Mr. Bharat Bomb gave his or his relatives mobile no. and email Id. A person doing something wrong would never give such correct details of person whose name and KYC are used for this purpose. When the appellant has no communication regarding opening of FD, details of interest credit, maturity, etc. how he could knowabout this fraud. Moreover, the very fact of the appellant’s acceptance before the Bank Authorities and Authorities of ED/CBI only goes to prove that the appellant never ever claimed these FD and interest credit therein as his belonging or income. In fact the appellant, as soon as came to know about the fact that his name and KYC details were used by Mr. Bharat Bomb for opening bank accounts, has denied to have opened any bank accounts in his name. It may be noted that investigation agencies called the appellant alongwith other persons, who’s KYC were used in opening of these account, and these persons categorically denied of opening any bank account nor made claim on money found deposited in these account and allowed investigation agencies to forfeit it. Even investigation agency held that the appellant and other victimsare not co-accused in this process. It may also be noted that Mr. Bharat Bomb already accepted this fact before CBI/ ED and affected banks also filed criminal complaint again him, on the ground that these accounts were opened by misusing KYC of persons known to Mr. Bharat Bomb. All these facts prove that these bank accounts do not belong to the appellant nor any amounts of FD and interest credited on maturity belong to the appellant. Moreover, it is already discussed that no addition can be made merely on the basis of entries reflected in the Form 26AS. Form 26AS is a statement that provides details of any amount deducted as TDS or TCS from various sources of income of a taxpayer. Because Form 26AS is readily available with the AO, it is forgotten that mistakes often creep into this document, solely because of errors committed by other people, not the assessee. In the instant case, since PAN of the appellant is registered with the bank, therefore, interest credited on FD by the bank along with tax deducted thereon reflected in the Form 26AS of the appellant, but when the accounts itself are not opened ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 25 andoperated by the appellant, then the appellant cannot be held owner of the bank account or amount credited therein. Here I may refer to the decision of the Hon’ble ITAT Mumbai Bench E in the case of Administrator of Estate of Lt. EduljiFramrozeDinshaw vs. CIT [2019] 103 taxmann.com 452 (Mumbai - Trib.) which held that if under provision of section 4 an amount does not bear character of income and, hence, is not chargeable to tax, then same cannot be converted into an 'income' only because payer of sum deducts tax under misconception of law. The head note is reproduced as under:- Section 4 of the Income-tax Act, 1961 - Income - Chargeable as (Intereston FDs) - Assessment year 2013-14 - Whether if under provision of section 4 an amount does not bear character of income and, hence, is not chargeable to tax, then same cannot be converted into an 'income' only because payer of sum deducts tax on same under misconception of law - Held, yes - Assessee, administrator of estate of NRI in India,entered into development agreement with a company named F to construct buildings upon land belonging to NRI against 12 per cent sale price of said construction - Due to some disputes, assessee terminated said agreement and approached Bombay High Court for restitution of property in original form - Bombay High Court issued directions to F tomaintain account of amounts collected as sales consideration and deposit same in designated account and to make FDs out of same -Assessing Officer observed that FDs with Indian Bank made by F did notbelong to assessee and as such interest on FDs made did not constituteits income - However, Commissioner revised said order holding thatinterest on FDRs by Indian Bank.” In view of the facts discussed above and judicial precedents cited supra, it is held that the AO is not justified in holding that the bank account, wherein interest income on FDRs at Rs. 11,71,206/- credited, is belonged to the appellant. The appellant has satisfactorily proved that these bank accounts were not opened by him and only his name and KYC were used by Mr. Bharat Bomb for opening these bank accounts. Thus, interest amounts credited in these bank accounts do not represent the appellant, the addition made at Rs. 11,71,206/- is directed to be deleted. Ground No. 2 raised by the appellant, regarding this issue, is allowed. ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 26 c) Regarding Amount Deposited in Bank 6.2. I have considered the facts of the case, assessment order and appellant’s submissions. The AO made the addition of Rs. 6,99,10,134/- on account of Peak Balance (A/c. No. 84501010008262 of Syndicate Bank), Rs. 4,99,40,698/- on account of Peak Balance (A/c. No. 84502010083668 of Syndicate Bank) and Rs. 2,48,013/- on account of Peak Balance (A/c. No. 01691310000019 of Canara Bank, after stating that the assessee failed to furnish any detail regarding transactions appearing in these bank accounts. In the written submissions, uploaded on the ITBA Portal, the appellant had reiterated that these accounts, in which all these transaction were carried out, do not belong to the appellant. The appellant had stressed that he has not formed any firm in the name and style of Deepak Traders as his sole proprietorship concern as per provision of Rajasthan VAT Act-2003, one person cannot have registration of two sole proprietorship firms in his /her name, appellant already got one registered sole proprietorship firm in the Name & Style of M/s Marble 2000 INC under the provision of Rajasthan VAT Act-2003 since 04/01/2000. He further submitted that someone obtained registration of Deepak Traders with same address of the Appellant w.e.f. 25/11/2011, however the registration of same was cancelled with effect from 31st March 2012. Mr. Deepak Wahi (Appellant) is holder of IEC Code, which is mandatory for carrying out import in the country and the aforesaid IEC Code is issued in the name of Marble 2000 INC, which was issued on 15/02/2001. The appellant has further submitted that only one IEC can be issued on one PAN. Form 15CA/I5CB, which is mandatory for foreign remittance is available on the e-filling site of appellant, however same cannot be downloaded without having acknowledgement number of uploading of form or date of submission, towhom such remittance is made, and then requested learned AO to obtain copy of Form 15CA/15CB from Bank including shipping Bill by his letter dated 30/11/2018, however no action on his request was taken by AO. The appellant has pointed out that Mr. Bharat Bomb himself confessed that he created aforesaid Deepak Traders for obtaining various credit facilities from bank by using KYC of appellant. Considering the facts of the case, assessment order and appellant’s written submissions, I am inclined to agree with the appellant’s claim. As in the instant case, it is already established that Mr. Bharat Bomb misused name / KYC for opening fake firms, opening bank accounts ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 27 and doing fake transactions. These facts get support from the confessional statement of Mr. Bharat Bomb recorded before the ED/CBI, copy of which is supplied, by the appellant, in his written submissions. This very fact was before the AO; however, he did not give much importance by stating that the appellant failed to furnish any detail regarding transactions appearing in these bank accounts. The information on scam is also in public domain from where the AO couldhave taken some cue. However, from the facts and details brought on record,it is clear that the appellant has not formed any firm in the name and style ofDeepak Traders because the appellant already got one registered soleproprietorship firm in the name & style of M/s Marble 2000 INC under theprovision of Rajasthan VAT Act- 2003 since 04/01/2000 and one person cannothave registration of two sole proprietorship firms. In these bank accounts, allthe financial transactions are related to Deepak Traders, which wasfraudulently opened by using the appellant’s name and KYC details by Mr.Bharat Bomb. These facts clears that these bank accounts did not belong tothe appellant nor do any financial transactions, appearing in these bankaccounts, belong to the appellant. 6.3. At this juncture, I may refer to the decision of the Hon’ble ITAT Mumbai Bench 'E' (Special Bench) rendered in the case of GTC Industries Ltd. v. ACIT [2017] 80 taxmann.com 284 (Mumbai - Trib.) (SB). The Hon’ble Mumbai Bench specifically held that where revenue made addition to assessee's income on the ground that cigarettes manufactured by it were sold at a price higher than MRP and said amount of premium was deposited in fictitious bank accounts belonging to assessee, in absence of any evidence on record that those bank accounts were in fact controlled by assessee, impugned addition was to be set aside. The head note from this judgment is reproduced as under:- Section 69 of the Income-tax Act, 1961 - Unexplained investments - (Bank Accounts) - Assessment years 1984-85 to 1986-987 – Assesseecompanynamely 'GTC' was engaged in manufacturing of cigarettes -Distribution and sale of cigarettes was made through chain ofwholesalers, retail outlets and salesmen - Cigarettes under variousbrands had different MRPs which were printed on packets - In courseof assessment, Assessing Officer noted that assessee was sellingcigarettes at a price higher than declared/printed MRP and, thus,generating cash premium in said process - According to AssessingOfficer, premium was collected by wholesalers who ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 28 deposited saidamount in fictitious bank accounts belonging to assessee - He thusadded amount of premium on sale of cigarettes to assessee's taxableincome - Whether even though wholesalers collected some premiumwhich was deposited in fictitious bank accounts from where certainadvertisement expenses were also incurred, yet in view of revenue'sfailure to prove through any direct or indirect material or evidence thatthose bank accounts had been either maintained by assessee or wasunder control of assessee or was benami of assessee, impugnedaddition made by Assessing Officer was to be set aside - Held, yes[Para 50][In favour of assessee]” 6.4. Similarly, the Hon’ble ITAT Delhi Bench ‘C’ in the case of Addl. CIT vs. JatindraMehra [2021] 128 taxmann.com 152 (Delhi - Trib.) held that to identify a beneficial owner of an asset, said person should have nexus, direct or indirect to source of asset and he must have provided funds for said asset; mere account opening form of an overseas bank account where assessee was mentioned as beneficial owner of account, mentioning details of his passport as an identification document, did not necessarily, in absence of any other corroborative evidence of beneficial ownership of assessee over asset, lead to taxability in hands of assessee under Black Money Act. In the instant case of appellant, there are no other corroborative evidence of beneficial ownership of assessee over money/financial transactions reflected in the bank accounts, which were opened fraudulently by misusing the appellant’s name and details. 6.5. It is pertinent to mention here that the Mr. Bharat Bomb’s case for the AY 2013-14 was reopened and the assessment u/s. 147 r.w.s 144 read with section 144B of the Income-tax Act was completed vide order dated 26/05/2023. The AO’s observation / findings recorded in the assessment order dated 26/05/2023 are reproduced as under:- “1. Facts of the case in brief: Information and evidences, as available on record with the Income Tax Department, showed that Mr. Bharat Bomb, the assessee, had involved in taking fraudulent and fake transactions in the three branches of Syndicate Bank namely Jaipur Malviya Nagar, Jaipur M.I. Road and Udaipur branches, totaling to Rs. 1000.63 crores. The fraud was done over a period of more than four years and it is estimated that 157 accounts were used and defrauded the Bank by resorting to Discount of Fake cheques, discount of fake inland bills and arranging overdraft limits against nonexistent LIC policies. These fraudulent transactions were done deliberately and with dishonest intention to ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 29 siphon off the funds of the Bank for illegal personal gains. The amount has been remitted to accounts maintained at Union Bank of India, Sukhadia Circle Branch, Fatehpura Branch and Udaipur Main Branch. Apart from this, remittances have gone to other 29 banks covering various branches to places like Agra, Indore, Kolkata, Mumbai, Bangalore, etc..Records showed that the Total Income declaredby the assessee for the assessment year 2013-14, through return ofincome filed on 26/03/2014, was Rs.8,11,450/-.This does notcommensurate with the huge amount transactions carried out by theassessee. The assessee has not submitted explanation regardingtransactions, deposits and credits in various bank account in the Syndicatebank and, therefore notice u/s 148 was issued to on 13.04.2021. In view ofthe Hon’ble Supreme Court order dated 04/05/2022, in Civil AppealNo.3005/2022 in the case Union of India &Ors. Vs Ashish Agarwal and inview of instruction no 01/2022 dated 11 th May, 2022 issued by CBDT, NewDelhi incompliance to the judgment of the Hon’ble Supreme Court, showcause notice u/s 148A(b) was issued to the assessee on 23/05/2022. Anorder u/s 148A(d) was passed, wherein explaining the facts of the case on30/06/2022. Subsequently, notice u/s 148 was issued on the same date. 3. The assessee, Mr. Bharat Bomb, had involved in taking fraudulent andfake transactions in the three branches of Syndicate Bank namely JaipurMalviya Nagar, Jaipur M.I. Road and Udaipur branches, totaling to Rs.1000.63 crores. The fraud was done over a period of more than four yearsand it is estimated that 157 accounts were used and defrauded the Bankby resorting to Discount of Fake cheques, discount of fake inland bills andarranging overdraft limits against non-existent LIC policies. Thesefraudulent transactions were done deliberately and with dishonest intentionto siphon off the funds of the Bank for illegal personal gains. The amounthas been remitted to accounts maintained at Union Bank of India,Sukhadia Circle Branch, Fatehpura Branch and Udaipur Main Branch.Apart from this, remittances have gone to other 29 banks covering variousbranches to places like Agra, Indore, Kolkata, Mumbai, Bangalore, etc..Records showed that the Total Income declared by the assessee for theassessment year 2013-14, through return of income filed on 26/03/2014,was Rs.8,11,450/-. This does not commensurate with the huge amounttransactions carried out by the assessee. The assessee has not submittedexplanation regarding transactions, deposits and credits in various bankaccount in the Syndicate bank. ............................................................................... ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 30 5. During initial verification carried out by the Income Tax Department,statements were recorded from the assessee and were placed on record.n perusal of the statement u/s 131 of the I.T. Act, 1961, recorded on13.3.2019, it is noticed that, in question No. 7 the assessee was askedhow assessee and others have done the fraud with Syndicate Bank. In thereply the assessee stated that the assessee and others had defrauded theBank by resorting to Discount of Fake cheques, discount of fake inlandbills and arranging overdraft limits against non-existent LIC policies.Further in question No. 9, the assessee was asked about the bankstatements of the 10 persons and about the transactions in their bankaccounts. In the reply assessee admitted that all the 10 people wererelatives and employees and that the assessee have fraudulently usedtheir documents and account to obtain loan from Syndicate Bank. Further,it was also admitted that from the financial year 2011-12 to the financialyear 2015-16 all the financial transactions were done by the assessee andonly assessee himself is accountable for those transactions and is readyto accept accountability of those transactions. Further, in question No. 11and 12 the assessee was asked about the use of the amount obtained by loan. In the reply the assessee has stated that he had used those amount obtained by fraud loans in settling the old small term loans. The assessee has further stated that there is no loan outstanding against the 10 names asked in question No. 9 and all fraud loans were settled accordingly. It was further noticed that the assessee had filed return of income u/s 139(4) for the assessment year 2013-2014 on 26/03/204, by declaring total income of Rs.8,11,450/-. The income declared comprised income from house property, income from business and income from other sources. Income from house property was declared by the assessee by not disclosing the details or addresses of the properties that were let out, although the return has a provision for entering such details. Business income part of the return has no details of any business transactions, rather Rs.5,57,440/- was shown as gross profit and as net profit. The assessee has accepted that he has done fraud with Syndicate Bank and assessee himself had taken all the accountability and responsibility for the fraud done with Syndicate Bank. 6. As per data available on record, as disseminated and informed by thebank authorities through various avenues showed that the assessee hadindulged in fraudulent transactions by way of discounting fake cheques,discounting fake bills, creating overdrafts against non- ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 31 existent LIC policies etc. during financial years extending from 2011-2 to 2016-17 and the totalof such transactions amounted to Rs.1000,63,24,000/- (approximately Rs1000.63 crores). The year under verification through notice issued u/s 148on 30/06/2022 is for the assessment year 2013-14, representing thefinancial year 2012-13. The data and information available on record havebeen verified and the break-up of details shows that there had beentransactions by way of creating overdrafts against non-existing LIC policiesin the name of customers and generating income through receipts/credits. During the financial year 2012-13 relevant to the assessment year 2013-14, the following transactions have taken place: Branch BIC Branch Type of transaction Custome rinvolved Date oftrans action Amou ntinvo lved 8450 Syndicate Bank, OD againstLIC Pradee pNima wat 28/01/2013 2,50,00,000 Udaipur policy 8450 Syndicate Bank,Udai pur OD againstLIC policy Mahendr aMehwal 28/01/2013 1,75,00,000 8450 Syndicate Bank,Udai pur OD againstLIC policy PiyushDh armawat 29/01/2013 2,50,00,000 8450 Syndicate Bank,Udai pur OD againstLIC policy ChandraK alaDharm awat 29/01/2013 2,50,00,000 8450 Syndicate Bank,Udai pur OD againstLIC policy Bhaska rJain 30/01/2013 2,50,00,000 ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 32 Total 11,75,00,00 0 These were financial benefits received/gained by the assessee through his activities and these are transpired to be income generating transactions.However,it is evident from return of income that assessee has not disclosed above transactions and income so derived from the these transactions in his return of income.” From the above findings recorded in the Mr. Bharat Bomb's case while completing the assessment for the AY 2013-14, it is clear that Sh. Bharat Bomb used KYC of many individuals and operated various bank accounts which were misused in opening these accounts and the present appellant wasalso a victim of this fraudulent done by Mr. Bharat Bomb. This fact further gets support from the Mr. Bharat Bomb's Confessional statement recorded before the ED. For the sake of clarity, relevant part of Sh. Bharat Bomb's statement recorded on 04/11/2016 before ED is reproduced as under:- "(i) That the name of person whose KYC were used for opening fake firms, opening bank account and doing fake transactions are his family members, his friends and client whose name are (i) Shantilal Bumb, (ii) Azad Bumb, (iii) Pooja Bumb, (iv) Manna Lal Jain, (v) Kalawati Jain, (vi) Lalit Jain, (vii) Urvashi Jain, (viii) Naresh Lodha, (ix) Piyush Jain, (x) Bindu Jain, (xi) Ravindra Jain, (xii) Sambhav Jain, (xiii) Deepak Wahi, (xiv) Provy Wahi, (xv) Harish Parikh, (xvi) Shilpa Parikh, (xvii) Ankit Hinger, (xviii) Pratik Hinger, (xix) Nitin Parikh, (xx) Narendra Deora, (xxi) Deepika Arora, (xxii) Vipul Kaushik, (xxiii) Kiran Kaushik (xxiv) Nilesh Babel, (xxv) Jasdeep Singh, (xxvi) Aakansha Sethi, (xxvii) Kishore Kumar Vyas, (xxviii) Krishnakant Bagoda and others. (ii) That's the names of fictitious firms/non exiting firms which were created for opening fake account and making fraudulent transactions are Janhavi Material Trading Company (P) Limited, Rajdarbar Material Trading Company (P) Limited, Raj Shikhar Trading Enterprise LLP, Raj Prakhar Enterprises Trading LLP, Raj Prakhar Material Trading LLP, Bluesol Crete LLP, Janhavi Material Trading Company LLP, Raj Darbar Material Trading LLP, Urvashi Enterprises, Shreenath Material Supplier, Azad Const. Work, TUFA, Jay Shri Krishna Exim Traders, Sai Copper ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 33 House, Sai Construction, Kothari Enterprises, Shree Sai Metal Industries, Ram Narayan Exports, Aravali Material Trading, Raj Prakhar Enterprises, Urvashi Material Trading Co.(P) Ltd., Ashok Material Suppliers, Naveen Construction, Shubh Metal Industries, Everest Construction & Civil works. Jai Shankar Impex, Arihant Financial Services, Fairdeal Trade Industries, Jain Traders, Keshariya Metal Industries, Lucky Trade Industries, Raj Minerals, Janhavi Construction Com, Rameshwaram Material Trading Co. (P) ltd., Nakoda Construction Co., Shriram Exim Trade, Shri Nath Exim Trade, Laxmi Trading Co., Radhika Enterprises, Friends Timber, Babel Construction, Target Handicrafts, B.K. Builders, Deepak Traders. VK Enterprises, Kiran Buildtech, Urvashi Minerals, Narayan Bhil, BMR Construction, Tanvi Digitech etc. iii) On being ask as how he was monitoring transactions of so many firms he stated that on daily basis he was getting information from the bank as to how much amount was required to be deposited against outstanding CDD/Bill's discounting and other loans and accordingly cash was withdrawn from the bank and as when required new forged cheque bill was presented for discounting so that rotation can go on." 6.1. In view of the facts discussed above and judicial precedents cited supra, it is held that the AO is not justified in holding that bank account No.84501010008262 of Syndicate Bank, A/c. No.84502010083668 of Syndicate Bank and A / c No. 0169131000019 of Canara Bank, belonged to the appellant. The AO has not done due diligence to cross verify the 15CA/CB forms, allegedly issued by the appellant. This form involves three parties who are (i) The remitter, (ii) The Chartered Accountant and (iii) The Bank Officer. Once the appellant denied these forms all together, the AO must have summoned the Bank Officer and CA who have signed these forms which the AO failed. On the other hand, the appellant has satisfactorily proved that these bank accounts were not opened by him and only his name and KYC were used by Mr. Bharat Bomb for opening these bank accounts. Thus, financial transactions appearing/credited in these bank accounts do not represent the appellant, the additions made at Rs.6,99,10,134/-on account of Peak Balance (A/c.No.84501010008262 of Syndicate Bank), Rs. 4,99,40,698/- on account of Peak Balance (A/c. No. 84502010083668 of Syndicate Bank) and Rs 2,48,013/-on account of Peak Balance (A/c.No.0169131000019 of Canara Bank, are directed to be deleted. Ground no. 3 raised by the appellant, regarding these issues, is allowed. ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 34 9. In the case of Nitin Parikh appeal ITA/263/Jodhpur/2023 and ITA/264/Jodhpur/2023 Honourable ITAT Jodhpur deleted entire additions made with following remark : Para 9 Page No 12 “Para 9. We heard the rival submission and considered the documents available in the record. We find that the assessee is usually filing the return below taxable limit. Certainly in the impugned assessment year the assessee's income was raised due to mis-utilization of assessee's return by Mr. Bharat Bomb, CA. The statement recorded by the CA, the report of the ED and also supported by the evidence is clearly indicated that the assessee has suffered fraud due mischievous act of his CA. Further, the practical view is taken by the ld. appellate authority in the case of Mr. Deepak Wahi. The appellate authority had deleted the addition. We find that none of the returned income has any basis or has reality. Mere reflection of the salary on 26AS cannot serve the purpose, where there is no such any direct relevancy of the returned income. The ld. DR also not able to submit any documents or evidence related to direct nexus of the returned income of the assessee with the real income. The fact that big fraud was happened, the assessee was victimized by the group of people. We take rationale view, and the additions are duly deleted. In our considered view, the assessment order is itself erroneous due to absence of proper verification and cross verification related to addition during assessment. Accordingly, we set aside the appeal order and the assessment order is quashed. “ 10. In order to further explain how bank officers and Mr. Bharat Bomb misuse the name of appellant and other persons we are submitting copies of following orders of Debt Recovery Tribunal Jaipur : a) Canara Bank Vs Nakoda Construction Co (Sole Proprietor Pradeep Nimawat OA No 84 of 2018 This is a proprietorship firm formed by Bharat Bomb using name of Appellant Pradeep Nimawat a loan of Rs 25.86 Crore was raised. Outstanding on the date OA was Rs 15.44 Crore. Page 3 Para 10. The matter where the credit facilityas claimed in the O.A. in favor of the defendants and the defendants filed an application with bill of exchange Annexure A-3 to A-22. The Most alarming document is Demand Promissory Note as Annexure A-23 of the applications which bears signature of Pradeep Nimawat but the entire details are missing in the Demand Promissory Note, Annexure A-23. ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 35 Para 11. Similar is the position of Annexure A/24 Hypothecation Agreement running from Page 35 to 54 and this agreement is completely blank even the name of borrower, the account sanctioned details of hypothecation, details of stock, the rate of interest etc. is not mentioned. Even some of the pages are not signed and having seal of the defendants. Annexure A/25 is the Charges and hypothecation deed/agreement is signed by the defendants but again it do not bears the amount so sanctioned, the rate of interest etc. Page 4 Para 14- After having pursued the documents I am of the considered view that the demand promissory note and the hypothecation agreement at Annexure A/23 & A/24 are completely blank documents so, for this fault only the bank officers are responsible and not the borrower. Para 15. The blank agreement or a blank Demand Promissory note even though signed cannot be used for the purpose of recovery as it is not legally created and executed documents in the eye of law. Para 16. According this Original Application stand disposed of as dismissed. In view of above, we request your goodself to kind delete all the additions made in the Income of Assessee except Rs 1,80,000/- which the appellant offered as his original income and oblige. ” 8. To support the contention so raised in the written submission the ld. AR of the assessee has placed reliance on the following evidences: S. No. Particulars From To 1 Written submission 1 45 2 Copy of ED Order 46 235 3 Statement of Bharat Bomb Recorded before ED RUD 13, RUD 14 & RUD 15 236 276 4 Copy of Reason Recorded in case Bharat Bomb for AY 2011- 12 u/s 147 277 282 5 Copy of Assessment Order of Bharat Bomb for AY 2011-12 283 298 6 Copy of Assessment Order of Bharat Bomb for AY 2013-14 299 305 ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 36 7 Copy of Assessment Order of Bharat Bomb for AY 2016-17 306 310 8 Copy of CIT Appeal Order in case of Deepak Wahi for AY 2016-17 311 347 9 Copy of ITAT order in case of Nitin Parikh vs. DCIT for AY 2015-16 & 2011-12 in ITA No. 264/Jodh/2023 & ITA No. 263/Jodh/2023 348 360 10 Copy of DRT Order in OA No. 84 of 2018 in Canara Bank vs. Shree Nakoda Construction Co (Prop Pradeep Nimawat) 361 364 11 Copy of Statement Recorded at CBI/ED of Pradeep Nimawat 9. The ld. AR of the assessee in addition to the above written submission particularly drawn our attention the order of the debt recovery tribunal order dated 18.11.2022 wherein the DRT in the recovery petition filed by the Canara Bank for an amount of Rs. 25,86,22,917/- against the assessee observed that [ assessee paper book page(APB) 363 ] “para 10-> The most alarming document is Demand and Promissory note at Annexure A-23 of the application which bears signatures of Shri Pradeep Nimavat but the entire details are missing in the Demand Promissory Note, Annexure A-23. Para 11. ->Similar is the position of Annexure A-24 Hypothecation Agreement running from page no 35 to 54 and this agreement is completely bank even the name of the borrower, the account sanctioned details of the hypothetical, details of stock, the rate of interest etc., is not mentioned. Para 14- ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 37 > After having perused the documents, I am of the considered view that the demand and promissory note and the hypothecation agreement at Annexure A/23 & A/24 are completely blank document so, for this fault only the bank officers are responsible and not the borrower. The ld. AR of the assessee referring to the order of the Director of Enforcement (ED) [APB-94] wherein the name of the firm run by Shri Bharat Bomb by using the KYC documents of the assessee and the same name of firm is referred in the order of the DRT. Thus, it is beyond doubt that Shri Bharat Bomb was using the KYC for making the fraud in the names of the various parties as referred in the order of the ED and the assessee is one of the parties mentioned at Sr.no. 4 out of the list of 44 parties mentioned in the order of the ED. The ld. AR of the assessee also drawn attention to the page 278 of the paper book wherein the reasons were recorded considering the statement of the assessee recorded. The relevant part of the reasons recorded by the revenue to re-open the case of the assessee is reiterated herein below which he read while arguing the case of the assessee: “Reasons recorded for re-opening of the case of Shri Bharat Bomb A. Y. 11-12. ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 38 2 This case was ...... xxxxxx Similarly, on perusal of “Individual Transaction Statment”(ITS) of Shri Pradeep Nimawat (PAN ADZPN1060H), it has been found that a sum of Rs. 1,09,65,000/- was deposited in cash in different dates, during the financial year 2010-11 in the bank account of Shri Pradee Nimawat in Syndicate Bank. 3. During the course of assessment proceedings of the assessment year 2015-16 in the case of Shri Pradeep Nimawat, statement u/s. 131 of the I. T. Act were recorded on 03.11.2017 and Shri Pradeep Nimawat was specifically asked to inform the details of his bank accounts and sources of cash deposits & FDRs. While replying to question no. 7 of statements dated 03.11.2017, Shri Pradeep Nimawat categorically submitted that he is having only one bank account in Bank of India, Meera Girls College branch, Udaipur. He further submitted that he came to know about having bank accounts, FDRs, OD Accounts and Home Loan account in his name in the syndicate bank, Madhuban, Udaipur and Union Bank of India, Udaipur only when CBI and ED interrogated him after “Syndicate Bank Scam” Udaipur. 4. The statements recorded referred to above, Shri Pradeep Nimawat disclosed that he was employee of Shri Bharat Bomb during the period of cash deposit in the bank accounts opened in his name. He further disclosed that all the bank accounts, (except the bank account maintained in the Bank of India which was opened by him), where opened by Shri Bharat Bomb in his name by adopting fraud tactics in obtaining his documents. 5. I have carefully examined the facts of the instance case and also carefully pursued the relevant documents obtained from the concerned bank; i.e. bank statements, bank account opening forms, KYC etc., it is indeed true that Shri Bharat Bomb, the assessee found indulge in the Syndicate Bank scheme and has been sentenced to imprisonment on account of his indulgement of Syndicate Bank scam. On deep examination / verification of the fact of the case and material available in this office and after properly applying mind it has been concluded that the assessee has made total cash deposits of 2,46,90,000 in the saving bank accounts opened by him in the name of Shri Pradeep Nimawat in the bank branches of Oriental Bank of Commerce and Syndicate Bank. 9.1 Based on the above reasons so recorded when the ld. AO has categorically after obtaining all the information formed a view ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 39 that the total cash deposit of Rs. 2,46,90,000/- made in the account of the assessee is made by Shri Bharat Bomb there is no reason as to why the lower authority intend to tax the same amount in the hands of the assessee and that is why even though the orders of the lower authority are exparty the matter be decided based on the above reasoning recorded by the ld. AO there is no meaning to sending it back to further clarification and the assessee be granted the justice based on the facts already available on record and which has been clarified investigated by Banks, DRT and Directorate of Enforcement and based on that the Shri Bharat Bomb is already in imprisonment. Considering that aspect of the matter the ld. AR of the assessee submitted that the similar issue of related case has been decided by the co-ordinate bench in the case of Shri Nitin Parish in ITA no. 264/Jodh/2023. The ld. AR of the assessee also relied upon the judgment of Shri Deepak Wahi wherein on the similar facts and circumstances it was held that Mr. Bharat Bomb operated these account and additions cannot be sustained in the hands of the assessee by ld. CIT(A)/NFAC vide order dated 08.09.2023(APB311). Finally the ld. AR of the assessee submitted that the assessee be taxed the salary income ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 40 that he has stated as received in the statement recorded by considered as his income and rest of the addition made is neither income nor investment of the assessee and it is purely related to the financial fraud undertaken by Shri Bharat Bomb and when the revenue has already recorded the reasons the said income cannot be taxed in the hands of the assessee. 10. Per contra, the ld. DR relied on the finding of the orders of the lower authorities. No contrary decision was placed on record by the ld. DR but submitted that the bench may take judicious view in the matter considering the findings recorded in the orders of the lower authorities. 11. We have heard the rival contentions and perused the material placed on record. The brief facts of the case is that the assessee was working as salaried employee. Shri Bharat Bomb was filling the return of income of the assessee. Shri Bharat Bomb misused the ID proof of assessee, opened various bank account, various trading concern and obtained loan and brought properties in his name. In the month of Feb-March 2016 big fraud of Rs. 2000 ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 41 cr was unearthed and several persons including the DGM, Branch Manager and officers of Syndicate Bank and one CA named Mr. Bharat Bomb were arrested by CBI and ED. Large number of bank accounts operated by these persons were attached. Shri Bharat Bomb was the key person and master mind of this fraud. In support of the contentions so raised the ld. AR of the assessee relied upon the following documents in support of the various grounds so raised in this appeal: a) Copy of Order of ED b) Copy of Statement Recorded before ED/CBI of Bharat Bomb c) Copy of Note on Bharat Bomb’s Statement d) Copy of Reasons Recorded in case of Bharat Bomb by the AO for reopening of Case u/s 147. e) Copy of Assessment Order of Bharat Bomb For A Y 2011-12 f) Copy of Order in case of Bharat Bomb for in which it is mentioned that case is reopened only to meet contingency of adverse decision of higher authorities in case of Nitin Parikh and Pradeep Nimawat for A Y 2013-14. g) Copy of Assessment Order of Bharat Bomb for AY 2016-17 in which Bharat Bomb’s confirmation of fact that he misused name of assessee for his own benefitand it is he who operated these bank accounts is recorded. h) Copy of CIT Appeal order in case of Deepak Wahi in which in on similar facts and circumstance it was held that Mr. Bharat Bomb operated these account and additions cannot be sustained in the hands of assessee. i) Copy of ITAT Order of Honourable Jodhpur ITAT in ITA/263/Jodhpur/2023 and ITA/264/Jodhpur/2023 in case of Nitin Parikh in which additions made in the hands of assessee is deleted which were made on similar facts and circumstances. j) Copy of Debt Recovery Tribunal Order in case of Canara Bank vs M.s Shrinath Traders (sole Proprietor Pradeep Nimawat) ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 42 k) Copy of Statement of Pradeep Nimawat Recorded before ED/CBI l) Copy of Reasons Recorded for Assessment Year 2011-12 11.1 Even the ld. AR while recording the reasons for re-opening the case of Shri Bharat Bomb accepted the fact that Shri Bharat Bomb has deposited cash into his bank account and the same is duly submitted in the paper book filed by the assessee at page 278 wherein the ld. AO accepted the fact that and the same reads that; 5. I have carefully examined the facts of the instance case and also carefully pursued the relevant documents obtained from the concerned bank; i.e. bank statements, bank account opening forms, KYC etc., it is indeed true that Shri Bharat Bomb, the assessee found indulge in the Syndicate Bank scheme and has been sentenced to imprisonment on account of his indulgement of Syndicate Bank scam. On deep examination / verification of the fact of the case and material available in this office and after properly applying mind it has been concluded that the assessee has made total cash deposits of 2,46,90,000 in the saving bank accounts opened by him in the name of Shri Pradeep Nimawat in the bank branches of Oriental Bank of Commerce and Syndicate Bank. 11.2 As submitted in the paper book filed by the ld. AR of the assessee that in one of the case of Shri Deepak Wahi wherein on the similar facts and circumstances it was held that Mr. Bharat Bomb operated these account and additions cannot be sustained in the hands of the assessee this decision has been given by ld. CIT(A)/NFAC vide order dated 08.09.2023(APB311). Not only tha the Co-ordinate Bench of this tribunal vide order dated 20.12.2023 ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 43 in the case of Nitin Parikh vs. DCIT in ITA No. 264/Jodh/2023 & 263/Jodh/2023 has decided the related cash issue. 11.3 Since, the ld. DR did not controvert the that a) In the similar set of facts NFAC/CIT(A) in case of Deepak Wahi accepted the fact that addition cannot be made in the hands of the assessee when he has in a statement recorded that he has not done this transaction. The finding of the ld. NFAC is reiterated herein below “6.6. In view of the facts discussed above and judicial precedents cited supra, it is held that the AO is not justified in holding that bank account no. xxxx of Syndicate bank, A/c no. xxx of Syndicate Bank and A/c no. xxxx of Canara Bank, belonged to the appellant. The AO has not done dud diligence to cross verify the 15CA/CB forms, allegedly issued by the appellant. This forms involves three parties who are (i) The remitter, (ii) The Chartered Accountant (iii) The Bank officer. Once the appellant denied these forms all together, the AO must have summonded the Bank officer and CA who have signed these forms which AO failed. On the other hand, the appellant has satisfactorily proved that these bank accounts were not opened by him and only his name and KYC were used by Mr. Bharat Bomb for opening these bank accounts. Thus, financial, transactions appearing / credited in these bank accounts do not represent the appellant, the additions made at Rs. 6,99,10,134/- on account on peak Balance (A/c no. xxxx of Syndicate Bank, Rs. 4,99,40,698/- on account of peak balance (A/c no. xxxx of synidicate bank ) Rs. 2,48,013/- on account of peak balance (A/c no. xxxx ) of Canara Bank are directed to be deleted. Ground no. 3 raised by the appellant, regarding this issue is allowed. b) Categorically finding recorded by the ld. AO while re- opening the case of Shri Bharat Bomb wherein it has ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 44 been accepted that the cash deposited in the case of the assessee [ Shri Pradeep Nimawat ] is done by Shri Bharat Bomb and not by the assessee. c) Finding of co-ordinate bench in the case of Nitin Parikh vs. DCIT in ITA No. 264/Jodh/2023 & ITA No. 263/Jodh/2023 dated 20.12.2023 having similar set of facts where in the co ordinate bench has in detailed held as under : “We heard the rival submission and considered the documents available in the record. We find that the assessee is usually filing the return below taxable limit. Certainly in the impugned assessment year the assessee's income was raised due to mis- utilization of assessee's return by Mr. Bharat Bom, CA. The statement recorded by the CA, the report of the ED and also supported by the evidence is clearly indicated that the assessee has suffered fraud due mischievous act of his CA. Further, the practical view is taken by the Id. appellate authority in the case of Mr. Deepak Wahi. The appellate authority had deleted the addition. We find that none of the returned income has any basis or has reality. Mere reflection of the salary on 26AS cannot serve the purpose, where there is no such any direct relevancy of the returned income. The Id. DR also not able to submit any documents or evidence related to direct nexus of the returned income of the assessee with the real income. The fact that big fraud was happened, the assessee was victimized by the group of people. We take rationale view, and the additions are duly deleted. In our considered view, the assessment order is itself erroneous due to absence of proper verification and cross verification related to addition during assessment. Accordingly, we set aside the appeal order and the assessment order is quashed.” ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 45 12. Based on the above decision and considering the discussion so recorded here in above and on being consistent with the decision of the Co-ordinate Bench, we consider the ground Nos. 1 to 3 in ITA No. 317/Jodh/2023 as allowed. 13. The fact of the case in ITA No. 318-Jodh-2023 is similar to the case in ITA No. 317/Jodh/2023 and we have heard both the parties and persuaded the materials available on record. The bench has noticed that the issues raised by the assessee in this appeal No. 318/Jodh/2023 is equally similar on set of facts and grounds. Therefore, it is not imperative to repeat the facts and various grounds raised by both the parties. Hence, the bench feels that the decision taken by us in ITA No. 317/Jodh/2023 for the Assessment Year 2011-12 shall apply mutatis mutandis in the case of Pradeep Nimawat in ITA No. 318-Jodh-2023 for the Assessment Year 2015-16. In the result, both appeals of the assessee are allowed. ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 46 Order pronounced under rule 34(4) of the Appellate Tribunal Rules, 1963, by placing the details on the notice board. Sd/- Sd/- (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) Judicial Member Accountant Member Ganesh Kumar, PS (On Tour) Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T. True Copy By order ITA Nos. 317 & 318/Jodh/2023 Pradeep Nimwat 47 Date Initial 1. Draft dictated on Sr.PS/PS 2. Draft placed before author Sr.PS/PS 3. Draft proposed & placed before the Second Member JM/AM 4. Draft discussed/approved by Second Member JM/AM 5. Approved Draft comes to the Sr. P.S./P.S. Sr.PS/PS 6. Kept for pronouncement on Sr.PS/PS 7. File sent to the Bench Clerk Sr.PS/PS 8. Date on which file goes to the Head Clerk 9. Date on which file goes to the AR 10. Date of dispatch of Order