D.C.I.T CC - VII,kol, Kolkata V. M/s Mainak Vanijya Pvt Ltd, Kolkata

ITA 495/KOL/2013

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8547 (ITAT-KOLKATA)
• Duration Of Justice: 6 year(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-04-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 11-03-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K NAYAK
• Keywords: Accommodation entries; Set aside
• Section: 143(3); 131

Judgement Text

I.T.A. NOS. 495, 496 & 511/KOL/2013 ASSESSMENT YEARS: 2006-07, 2007-08 & 2008-2009 M/S. MAINAK VANIJYA PVT. LIMITED 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NOS. 495, 496 & 511/KOL/2013 ASSESSMENT YEARS: 2006-2007, 2007-2008 & 2008-2009 DEPUTY COMMISSIONER OF INCOME TAX,...... .........APPELLANT CENTRAL CIRCLE-VII, KOLKATA, AAYAKAR BHAWAN POORVA, 110, SHANTI PALLY, KOLKATA-700 107 -VS.- M/S. MAINAK VANIJYA PVT. LIMITED,.................. ...........................RESPONDENT 9, MANGOE LANE, KOLKATA-700 001 [PAN: AAECM 3845 J] O0 APPEARANCES BY: SHRI A.K. NAYAK, CIT (D.R.), FOR THE APPELLANT SHRI SUBHAS AGARWAL, ADVOCATE, FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : MARCH 26, 2019 DATE OF PRONOUNCING THE ORDER : APRIL 10, 2019 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT (KOLKATA ZONE) :- THESE THREE APPEALS ARE PREFERRED BY THE REVENUE A GAINST THREE SEPARATE ORDERS PASSED BY THE LD. COMMISSIONER OF I NCOME TAX (APPEALS), CENTRAL-I, KOLKATA, ALL DATED 31.12.2012 FOR A.YS. 2006-07, 2007-08 AND 2008-09 RESPECTIVELY AND SINCE THE ISSUES INVOLVED THEREIN ARE COMMON, THE SAME HAVE BEEN HEARD TOGETHER AND ARE BEING DIS POSED OF BY A SINGLE CONSOLIDATED ORDER. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY. T HE INVESTIGATION CARRIED OUT BY THE DEPARTMENT OF INCOME TAX (INVEST IGATION), KOLKATA REVEALED THAT SOME ENTITIES WERE INVOLVED IN PROVID ING ACCOMMODATION ENTRIES TO VARIOUS COMPANIES BASED IN MUMBAI, WHICH IN TURN HAD USED THE SAID FUNDS FOR PAYMENTS TO MADHIPURA MERCANTILE COOPERATIVE BANK AT I.T.A. NOS. 495, 496 & 511/KOL/2013 ASSESSMENT YEARS: 2006-07, 2007-08 & 2008-2009 M/S. MAINAK VANIJYA PVT. LIMITED 2 MUMBAI, WHICH WAS CONTROLLED BY SHRI KETAN PAREKH. SINCE THE ASSESSEE- COMPANY WAS ONE OF SUCH ENTITIES, THE STATEMENT OF ITS DIRECTOR SHRI ITEBRATA BISWAS WAS RECORDED UNDER SECTION 131 BY T HE DDIT(INVESTIGATION), KOLKATA ON 09.04.2007. IN THE SAID STATEMENT GIVEN ON OATH, SHRI ITEBRATA BISWAS ACCEPTED THAT HE HAD GOT CASH OF EQUIVALENT AMOUNT FROM THE MUMBAI BASED COMPANIES BELONGING TO SHRI KETAN PAREKH GROUP AND AFTER DEPOSITING THE SAID CASH INT O THE BANK ACCOUNT OF THE ASSESSEE-COMPANY, CHEQUES WERE ISSUED TO THE SA ID COMPANIES. HE ALSO FURNISHED A LIST OF CHEQUES SO ISSUED AGAINST CASH THAT HAD BEEN RECEIVED BY HIM. ALTHOUGH SHRI ITEBRATA BISWAS SUBS EQUENTLY FILED AN AFFIDAVIT RETRACTING HIS STATEMENT, THE ASSESSING O FFICER DID NOT ACCEPT THE SAME ON THE BASIS OF THE ENQUIRIES CONDUCTED BY THE INVESTIGATION WING ON A TEST-CHECK BASIS, WHICH REVEALED THAT CASH WAS DEPOSITED IN VARIOUS BANK ACCOUNTS IN DIFFERENT STAGES. ACCORDING TO THE ASSESSING OFFICER, THIS FACTUAL POSITION SUBSTANTIATED THE STATEMENT OF SHR I ITEBRATA BISWAS, DIRECTOR OF THE ASSESSEE-COMPANY THAT CASH WAS INDE ED RECEIVED BY THE ASSESSEE-COMPANY IN LIEU OF CHEQUES GIVEN TO VARIOU S COMPANIES BELONGING TO KETAN PAREKH GROUP. HE ACCORDINGLY HEL D THAT ACCOMMODATION ENTRIES WERE GIVEN BY THE ASSESSEE-CO MPANY TO VARIOUS MUMBAI BASED COMPANIES BELONGING TO KETAN PAREKH GR OUP AND SINCE THE ACCOMMODATION ENTRIES SO GIVEN DURING THE PREVIOUS YEAR RELEVANT TO A.Y. 2006-07 AGGREGATED TO RS.16,96,24,000/-, HE ADDED T HE COMMISSION INCOME @ 2% AMOUNTING TO RS.33,92,480/- TO THE TOTA L INCOME OF THE ASSESSEE IN THE ASSESSMENT COMPLETED FOR A.Y. 2006- 07 UNDER SECTION 143(3) VIDE AN ORDER DATED 30.12.2008. IN THE ASSES SMENT SO MADE, HE ALSO MADE AN ADDITION OF RS.16,96,24,000/- IN THE H ANDS OF THE ASSESSEE ON PROTECTIVE BASIS OBSERVING THAT THE UNEXPLAINED INCOME TO THAT EXTENT IN THE FORM OF CASH GIVEN BY THE MUMBAI BASED COMPA NIES WAS ASSESSABLE ON SUBSTANTIVE BASIS IN THE HANDS OF THE SAID COMPA NIES. THE ASSESSING OFFICER ALSO COMPLETED THE ASSESSMENT FOR A.YS. 200 7-08 AND 2008-09 AND IN THE ASSESSMENT SO MADE UNDER SECTION 143(3) VIDE ORDERS DATED 18.12.2009 AND 28.12.2010, HE MADE A SIMILAR ADDITI ON ON ACCOUNT OF I.T.A. NOS. 495, 496 & 511/KOL/2013 ASSESSMENT YEARS: 2006-07, 2007-08 & 2008-2009 M/S. MAINAK VANIJYA PVT. LIMITED 3 COMMISSION INCOME AT THE RATE OF 2% AMOUNTING TO RS .24,34,809/- AND RS.30,10,451/- TO THE TOTAL INCOME OF THE ASSESSEE FOR A.YS. 2007-08 AND 2008-09 RESPECTIVELY. HE ALSO MADE ADDITIONS OF RS. 12,17,40,462/-AND RS.15,05,22,568/- SIMILARLY ON PROTECTIVE BASIS IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) FOR A.YS. 2007-08 AN D 2008-09 VIDE ORDERS DATED 18.12.2009 AND 28.12.2010 RESPECTIVELY FOR THE TOTAL AMOUNT OF ACCOMMODATION ENTRIES PROVIDED BY THE ASSESSEE-C OMPANY TO THE MUMBAI BASED COMPANIES BELONGING TO KETAN PAREKH GR OUP OBSERVING THAT UNEXPLAINED INCOME TO THAT EXTENT WAS LIABLE T O BE ASSESSED ON SUBSTANTIVE BASIS IN THE HANDS OF THE SAID COMPANIE S FOR THE CASH GIVEN TO THE ASSESSEE-COMPANY. 3. AGAINST THE ORDERS PASSED BY THE ASSESSING OFFIC ER UNDER SECTION 143(3) FOR A.YS. 2006-07, 2007-08 AND 2008-09, APPE ALS WERE PREFERRED BY THE ASSESEE-COMPANY BEFORE THE LD. CIT(APPEALS) AND AFTER CONSIDERING THE SUBMISSIONS MADE BY THE ASSESSEE AS WELL AS THE MATERIAL AVAILABLE ON RECORD, THE LD. CIT(APPEALS) DELETED THE ADDITION M ADE BY THE ASSESSING OFFICER TO THE TOTAL INCOME OF THE ASSESSEE FOR A.Y . 2006-07 ON ACCOUNT OF THE ALLEGED ACCOMMODATION ENTRIES GIVEN TO THE MUMB AI BASED COMPANIES IN THE FORM OF COMMISSION INCOME AT THE RATE OF 2% AS WELL AS FURTHER ADDITION ON ACCOUNT OF PROTECTIVE BASIS FOR THE FOL LOWING REASONS GIVEN IN PARAGRAPH NO. 8 & 9 OF HIS IMPUGNED ORDER:- 8. I HAVE PERUSED THE RELEVANT ORDERS AND CONSIDER ED THE MATERIAL PLACED ON RECORD. I FIND THAT THE ISSUE RE GARDING THE DISCREPANCY IN DATES RELATED TO THE SWORN-AFFIDAVIT OF THE DIRECTOR OF THE APPELLANT COMPANY AS MENTIONED IN T HE ITAT ORDER HAS BEEN SATISFACTORILY EXPLAINED BY THE APPE LLANT. COPY OF SWORN-AFFIDAVIT AND OTHER RELEVANT MATERIAL WAS PRODUCED BY THE APPELLANT IN SUPPORT OF ITS CONTENT IONS. ON THE OTHER HAND, NO ADVERSE MATERIAL HAS BEEN BROUGH T ON RECORD BY THE AO IN COURSE OF THE APPELLATE PROCEED INGS, THE AO WAS ALSO SUPPOSED TO ASCERTAIN ABOUT THE CASES W HERE SUBSTANTIVE ADDITIONS WERE MADE CORRESPONDING TO TH E PROTECTIVE ADDITION IN THE PRESENT CASE, AND ALSO A BOUT THE FATE OF THE APPEALS IN THOSE CASES. HOWEVER, THOUGH A SUBSTANTIAL PERIOD OF NEARLY ONE YEAR HAS ALREADY E LAPSED, NOTHING HAS BEEN HEARD FROM THE AO. THE REMINDER IS SUED ON 19.12.2012 WAS ALSO NOT RESPONDED BY THE AO. IN THI S FACTUAL I.T.A. NOS. 495, 496 & 511/KOL/2013 ASSESSMENT YEARS: 2006-07, 2007-08 & 2008-2009 M/S. MAINAK VANIJYA PVT. LIMITED 4 BACKGROUND; GIVEN THE FACTS OF THE CASES AND THE FI NDINGS OF THE AO IN HIS ASSESSMENT ORDER, THE DECISIONS OF TH E LD. CIT(A) IN THE CASE OF THE APPELLANT VIDE HIS ORDER DATED 2 2.10.2010 IN APPEAL NO. 360/CC-VII/CIT(A)C-I/08-09; AND ALSO, THOSE OF THE HONBLE JURISDICTIONAL ITAT IN SIMILAR CASES IN VOLVING IDENTICAL FACTS AND CIRCUMSTANCES, THE PRESENT APPE AL IS NOW BEING DECIDED ON THE BASIS OF THE MATERIAL AVAILABL E ON RECORD. 9. I FIND THAT THE ISSUES INVOLVED IN THE PRESENT APPEAL ARE COVERED BY THE ORDERS OF THE HONBLE JURISDICTI ONAL ITAT IN SIMILAR CASES INVOLVING IDENTICAL FACTS AND CIRC UMSTANCES. THE ADDITIONS WERE DELETED BY MY LEARNED PREDECESSO R VIDE HIS ORDER DATED 22.10.2010 IN APPEAL NO. 360/CC- VII/CIT(A)C-I/08-09. THOUGH THE MATTER WAS RESTORED TO THE FILE OF THE CIT(A) BY THE HONBLE ITAT, NO FRESH FA CTS OR MATERIAL HAS COME UP IN COURSE OF THE PRESENT APPEL LATE PROCEEDINGS. RESPECTFULLY FOLLOWING THE DECISIONS O F MY LEARNED PREDECESSOR IN THE CASE OF THE APPELLANT AS WELL AS THOSE OF THE HONBLE JURISDICTIONAL ITAT IN SIMILAR CASES INVOLVING IDENTICAL FACTS AND CIRCUMSTANCES, IT IS TO BE HELD THAT THE ADDITION MADE BY THE AO ON ACCOUNT OF UNEX PLAINED INCOME AS WELL AS ON THAT OF COMMISSION INCOME IS N EITHER SUSTAINABLE IN LAW NOR ON FACTS. THE ADDITION OF RS.16,96,24,000/- AND RS.33,92,480/- IS DIRECTED TO BE DELETED. IN RESULT, THE APPEAL OF THE APPELLANT IS ALLOWED. FOR ALMOST IDENTICAL REASONS AS GIVEN IN HIS IMPUGN ED ORDER FOR A.Y. 2006-07, THE LD. CIT(APPEALS) ALSO DELETED THE SIMI LAR ADDITIONS MADE BY THE ASSESSING OFFICER TO THE TOTAL INCOME OF THE AS SESSEE FOR A.YS. 2007-08 AND 2008-09 ON ACCOUNT OF THE ALLEGED ACCOMMODATION ENTRIES GIVEN TO THE MUMBAI BASED COMPANIES IN THE FORM OF COMMISSIO N INCOME AND FURTHER ADDITION ON ACCOUNT OF PROTECTIVE BASIS. 4. AGGRIEVED BY THE ORDERS OF THE LD. CIT(APPEALS) GIVING RELIEF TO THE ASSESSEE FOR THE THREE YEARS UNDER CONSIDERATION, T HE REVENUE HAS PREFERRED THESE APPEALS BEFORE THE TRIBUNAL. 5. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE TWO COMM ON ISSUES INVOLVED IN THESE THREE APPEALS RELATE TO THE DELETION BY THE L D. CIT(APPEALS) OF THE ADDITIONS MADE BY THE ASSESSING OFFICER ON ACCOUNT OF ALLEGED I.T.A. NOS. 495, 496 & 511/KOL/2013 ASSESSMENT YEARS: 2006-07, 2007-08 & 2008-2009 M/S. MAINAK VANIJYA PVT. LIMITED 5 ACCOMMODATION ENTRIES GIVEN TO THE MUMBAI BASED COM PANIES ON PROTECTIVE BASIS AND THE DELETION BY THE LD. CIT(AP PEALS) OF THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF COMMISS ION INCOME ALLEGEDLY RECEIVED BY THE ASSESSEE FOR GIVING ACCOMMODATION E NTRIES. IT IS OBSERVED THAT THE SIMILAR ISSUES WERE INVOLVED IN SOME OTHER CASES AND ALL THESE CASES WERE ADJOURNED IN THE PAST AND ALSO BLOCKED F OR SOME PERIOD FOR GETTING THE INFORMATION ABOUT THE STATUS OR OUTCOME OF THE CASES WHERE THE SIMILAR AMOUNTS WERE ADDED ON SUBSTANTIVE BASIS . INSPITE OF SUFFICIENT TIME GIVEN TO BOTH THE PARTIES, THEY HAVE FAILED TO FURNISH THE SAID INFORMATION. IT IS WELL SETTLED THAT PROTECTIVE ASS ESSMENT IS PERMISSIBLE IN LAW AND IN CASE A DOUBT OR AMBIGUITY ABOUT REAL ENT ITY IN WHOSE HANDS A PARTICULAR INCOME IS TO BE ASSESSED, THE ASSESSING AUTHORITY IS ENTITLED TO HAVE RECOURSE TO MAKE A PROTECTIVE ASSESSMENT. AS H ELD BY THE HONBLE SUPREME COURT IN THE CASE OF LALJI HARIDAS VS.- IT O (43 ITR 387), THE OFFICER MAY, WHEN IN DOUBT, TO SAFEGUARD THE INTERE ST OF THE REVENUE CAN ASSESS IT IN MORE THAN ONE HAND BUT THIS PROCEDURE CAN BE PERMITTED ONLY AT THE STAGE OF ASSESSMENT. PROTECTIVE ASSESSMENT B ECOMES REDUNDANT WHEN THE SUBSTANTIVE ASSESSMENT BECOMES FINAL AND I F THE SUBSTANTIVE ASSESSMENT FAILS, IT IS PROTECTIVE ASSESSMENT WHICH IS TO BE TREATED AS SUBSTANTIVE. KEEPING IN VIEW THIS COROLLARY BETWEEN THE SUBSTANTIVE ASSESSMENT AND PROTECTIVE ASSESSMENT, AN APPEAL AGA INST THE PROTECTIVE ASSESSMENT SHOULD ORDINARILY AWAIT THE OUTCOME OF T HE SUBSTANTIVE ASSESSMENT SO THAT THE PROTECTIVE ASSESSMENT CAN BE INCONFORMITY WITH THE SUBSTANTIVE ASSESSMENT. IN THE CASE OF CIT VS. - SURENDRA GULAB CHAND MODI (140 ITR 517), THE APPEAL ARISING OUT OF THE P ROTECTIVE ASSESSMENT WAS DISPOSED OF BY THE APPELLATE AUTHORITY I.E. TRI BUNAL VACATING THE PROTECTIVE ASSESSMENT WITHOUT WAITING FOR THE FINAL OUTCOME OF THE PROCEEDINGS ARISING FROM THE SUBSTANTIVE ASSESSMENT , WHICH MATTER WAS PENDING IN THE HONBLE SUPREME COURT. THE HONBLE G UJARAT HIGH COURT HELD THAT THE TRIBUNAL WAS NOT JUSTIFIED IN PROCEED ING WITH THE MATTER AND IN DISPOSING OF IT INSTEAD OF BLOCKING IT TILL THE DISPOSAL OF THE MATTER PENDING IN THE HONBLE SUPREME COURT IN ORDER TO BR ING IT INCONFORMITY I.T.A. NOS. 495, 496 & 511/KOL/2013 ASSESSMENT YEARS: 2006-07, 2007-08 & 2008-2009 M/S. MAINAK VANIJYA PVT. LIMITED 6 WITH THE VIEW OF THE HONBLE SUPREME COURT. THE HON BLE GUJARAT HIGH COURT ACCORDINGLY DIRECTED THE TRIBUNAL TO KEEP THE MATTER ALIVE AND PENDING AWAITING THE DECISION OF THE HONBLE SUPREM E COURT IN THE PROCEEDINGS ARISING FROM THE SUBSTANTIVE ASSESSMENT . 6. IN THE PRESENT CASE, THE LD. CIT(APPEALS) DID NO T AWAIT THE OUTCOME OF THE PROCEEDINGS ARISING FROM THE SUBSTANTIVE ASS ESSMENT AND SINCE THE SAID INFORMATION WAS NOT FORTHCOMING EVEN AFTER A C ONSIDERABLE PERIOD FROM THE CONCERNED ASSESSING OFFICER, HE PROCEEDED TO DISPOSE OF THE APPEALS ARISING FROM THE PROTECTIVE ASSESSMENTS BY HIS IMPUGNED ORDERS AND DELETED THE ADDITION MADE ON PROTECTIVE BASIS W ITHOUT AWAITING THE FINAL OUTCOME OF THE PROCEEDINGS ARISING FROM THE S UBSTANTIVE ASSESSMENT. KEEPING IN VIEW THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS.- SURENDRA GULAB CHAND MODI (SUPRA), WE HOLD THAT THE LD. CIT(APPEALS) WAS NOT JUSTIFIED IN DELETING THE ADDI TIONS MADE BY THE ASSESSING OFFICER ON PROTECTIVE BASIS IN ALL THE TH REE YEARS UNDER CONSIDERATION WITHOUT AWAITING FOR THE FINAL OUTCOM E OF THE PROCEEDINGS ARISING FROM THIS SUBSTANTIVE ASSESSMENT. WE, THERE FORE, SET ASIDE THE IMPUGNED ORDERS OF THE LD. CIT(APPEALS) ON THIS ISS UE AND REMIT THE MATTER BACK TO HIM FOR KEEPING IT ALIVE AND PENDING TILL THE OUTCOME OF THE PROCEEDINGS ARISING FROM THE SUBSTANTIVE ASSESSMENT . 7. AS REGARDS THE ISSUE RELATING TO THE ADDITIONS M ADE ON ACCOUNT OF COMMISSION INCOME ALLEGEDLY RECEIVED BY THE ASSESSE E FOR GIVING ACCOMMODATION ENTRIES, WE FIND THAT THIS ISSUE IS C ONSEQUENTIAL TO THE ISSUE RELATING TO THE ADDITION MADE ON PROTECTIVE B ASIS ON ACCOUNT OF ACCOMMODATION ENTRIES ALLEGEDLY GIVEN BY THE ASSESS EE-COMPANY TO THE MUMBAI BASED COMPANIES. SINCE THE SAID ISSUE IS REM ITTED BACK BY US TO THE LD. CIT(APPEALS), WE ALSO REMIT THE CONSEQUENTI AL ISSUE RELATING TO ADDITION ON ACCOUNT OF COMMISSION INCOME BACK TO TH E LD. CIT(APPEALS) FOR DECIDING THE SAME AFRESH. GROUNDS NO. 1 & 2 OF THE REVENUES APPEALS I.T.A. NOS. 495, 496 & 511/KOL/2013 ASSESSMENT YEARS: 2006-07, 2007-08 & 2008-2009 M/S. MAINAK VANIJYA PVT. LIMITED 7 FOR THE THREE YEARS UNDER CONSIDERATION ARE ACCORDI NGLY TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 8. THE OTHER ISSUES RAISED BY THE REVENUE IN ITS AP PEAL ARE GENERAL IN NATURE, WHICH DO NOT REQUIRE ANY ADJUDICATION. 9. IN THE RESULT, THE APPEALS OF THE REVENUE ARE TR EATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON APRIL 10, 201 9. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER VICE -PRESIDENT (KZ) KOLKATA, THE 10 TH DAY OF APRIL, 2019 COPIES TO : (1) DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-VII, KOLKATA, AAYAKAR BHAWAN POORVA, 110, SHANTI PALLY, KOLKATA-700 107 (2) M/S. MAINAK VANIJYA PVT. LIMITED, 9, MANGOE LANE, KOLKATA-700 001 (3) COMMISSIONER OF INCOME TAX (APPEALS), CENTRAL -1, KOLKATA, (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.