SUNIL KUMAR TIBREWAL, MUMBAI V. DCIT-4(3)(1), MUMBAI

ITA 5881/MUM/2018

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 3803 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 12-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C S SHARMA
• Assessee Lawyers: HEMA KATNA
• Keywords: Bogus purchase; Accommodation entries
• Section: 142(1); 143(2); 147; 68; 148

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI S . RIFAUR RAHMAN , AM & SHRI RAM LAL NEGI, JM ./ I.T.A. NO . 5881 , 5882 & 5883 / MUM/ 2018 ( / ASSESSMENT YEAR: 2010 - 11 , 2011 - 12 & 2013 - 14 ) SUNIL KUMAR TIBREWAL, A/180 4, IVY TOW E R, VASANT VALLEY, GEN AK VAIDYA MARG, MALAD (EAST), M UMBAI - 400 097 / VS. DCIT 4(3)(1 ), 649, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400 020. ./ ./ PAN NO. AABPT 2574 P ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : MS. HEMA KATNA, AR / RESPONDENTBY : SHRI C. S. SHARMA , DR / DATE OF HEARING : 25 .09 .201 9 / DATE OF PRONOUNCEMENT : 16.10.2019 / O R D E R PER S. RIFAUR RAHMAN, ACCOUNTANT MEMB ER : THE PRESENT THREE APPEAL S HAVE BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. COMMIS S IONER OF INCOME TAX (APPEALS) - 2 IN SHORT REFERRED AS LD. CIT(A) , MUMBAI, DATED 14.08.18 FOR 2 I.T.A. NO. 5881, 5882 & 5883/MUM/2018 SUNIL KUMAR TIBREWAL, A SSESSMENT YEAR (IN SHORT A Y ) 2010 - 11 , 2011 - 12 & 2013 - 14 RESPECTI VELY. 2 . ALL THE THREE APPEALS ARE HEARD TOGETHER AND ALL THE FACTS IN THESE APPEALS ARE SIMILAR, FOR THE SAKE OF CONVENIENCE , IT IS DISPOSED OF BY THIS COMMON ORDER. TO DISPOSE OF THESE APPEALS, WE HAVE TAKEN FACTS FROM AY 2010 - 11. 3. THE B RIEF FACTS OF T HE CASE ARE THAT ASSESSEE FILED HIS RETURN OF INCOME FOR ASSESSMENT YEAR 20 10 11 DECLARING TOTAL INCOME AT RS. 8,98,353/ - ON 31.08.10. SUBSEQUENTLY, AO RECEIVED INFORMATION FROM DGIT(INV), MUMBAI THAT SHRI PRAVIN KUMAR JAIN IS ONE OF THE LEADING ENTRY PR OVIDERS OPERATING IN MUMBAI INDULGING IN PROVIDING ACCOMMODATION ENTRIES LIKE BOGUS PURCHASE, SALES, UNSECURED LOANS, SHARE CAPITAL, ETC. THEREAFTER, A SEARCH WAS CARRIED OUT AND IT WAS FOUND THAT SHRI PRAVIN KUMAR JAIN INVOLVED IN VARIOUS ACCOMMODATION EN TRIES. BASED ON THE INFORMATION, THE ASSESSMENTS OF TH E ASSESSEE WERE REOPENED U/S 147 OF THE ACT BY ISSUING NOTICE U/S 148 DULY SERVED ON THE ASSESSEE. ACCORDINGLY, NOTICE U/S 143(2) AND 142(1) WERE ISSUED AND SERVED ON THE ASSESSEE. LD. AR OF THE ASSESSE E SUBMITTED THAT RELEVANT INFORMATION WAS FILED AS CALLED FOR BY THE AO. DURING 3 I.T.A. NO. 5881, 5882 & 5883/MUM/2018 SUNIL KUMAR TIBREWAL, THE COURSE OF ASSESSMENT, AO NOTICED THAT ASSESSEE HAS RECEIVED UNSECURED LOANS OF RS. 8 LAKHS FROM THE COMPANY M/S RYAN INTERNATIONAL, WHICH IS THE CONCERN CONTROLLED BY SHRI PRAVIN KUMAR JAIN. IN THIS REGARD, ASSESSEE HAS SUBMITTED THE RELEVANT DOCUMENTS RELATING TO THESE TRANSACTIONS, WHICH WERE SUBMITTED BEFORE AO AND SUBMITTED THAT THESE TRANSACTIONS WERE GENUINE AND THE LOAN WAS ALSO REPAID IN THE SAME ASSESSMENT YEAR. AS FAR AS BALANCE OUTSTANDING IS CONCERNED, ASSESSEE HAS ALREADY CLEARED THE UNSECURE LOAN BEFORE END OF THIS YEAR AND BALANCE OUTSTANDING IS NIL AND ALL THE TRANSACTIONS WERE MADE THROUGH THE BANK ONLY. SINCE THIS TRANSACTION WAS TRAN SACTED TO A CONCERN IN WHICH SHR I PRAVIN KUMAR JAIN IS INVOLVED, AO HAS NOT CONVINCED WITH THE SUBMISSION OF THE ASSESSEE AND ACCORDINGLY, ADDITION WAS MADE U/S 68 OF THE ACT. 4. AGGRIEVED WITH THE ABOVE ORDER , ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A) AND LD. CIT(A) ALSO CONFIRM ED THE ADDITION BASED ON THE REASONS GIVEN BY AO AND THE FINDINGS OF DGIT (INV) IN THE CASE OF SHRI PRAVIN KUMAR JAIN AND THEREFORE, HE SUSTAINED THE ADDITION MADE BY AO. 4 I.T.A. NO. 5881, 5882 & 5883/MUM/2018 SUNIL KUMAR TIBREWAL, 5. AGGRIEVED WITH THE ABOVE ORDER , ASSESSEE IS AN APPEAL BEFORE US OBJECTING THE CONFIRMATION OF THE ADDITION MADE U/S 68 OF THE ACT. 6. BEFORE US , LD. AR SUBMITTED THAT ASSESSEE HAS TAKEN UNSECURE LOAN FROM THE COMPANY M/S RYAN INTERNATIONAL AND REPAID THE SAME WITHIN THE ASSESSMENT YEAR AND SHE BROUGHT TO OUR NOTICE THE BANK STA TEMENT AS PER WHICH ASSESSEE HAS RECEIVED U N SECURED LOAN ON 25.07.09 THROUGH CHEQUE NO. 448404 AND REPAID THE SAME ON 25.03.10. FURTHER, SH E BROUGHT TO OUR NOTICE THE CONFIRMATION OF M/S RYAN INTERNATIONAL AND THE COPY OF LEDGER OF THE ASSESSEE IN THE BOOK S OF ACCOUNTS AND BANK STATEMENT, CONFIRMING THE ABOVE TRANSACTION, WHICH WAS MADE THROUGH BANK ONLY. ALL THESE INFORMATIONS ARE PART OF PAPER BOOK FILED BY THE ASSESSEE WHICH ARE ALSO SUBMITTED BEFORE LD. CIT(A). SHE SUBMITTED THAT COORDINATE BENCH OF ITA T HAS HELD IN FAVOUR OF THE ASSESSEE IN VARIOUS CASES IN WHICH SHRI PRAVIN KUMAR JAIN HAS INVOLVED . IN THIS REGARD, SHE REL IED UPON THE FOLLOWING CASE LAW : - 5 I.T.A. NO. 5881, 5882 & 5883/MUM/2018 SUNIL KUMAR TIBREWAL, S.NO. PARTICULARS 1 ORDER DATED 14.09.2017 PASSED BY HON'BLE ITAT, MUMBAI IN THE CASE OF DCIT VS. BAIRAGRA BUILDERS P. LTD. IN ITA NO. 4691 & 4692/M/2015 2 ORDER DATED 31.10.2018 PASSED BY HON'BLE ITAT, MUMBAI IN THE CASE OF ACIT VS. H.K. PUJARA BUILDERS IN ITA NO. 930/M/2017 3 ORDER DATED 21.09.2017 PASSED BY HON'BLE ITAT, MUMBAI IN THE CASE OF ITO VS. KHUSBOO EXPORTS P. LTD. IN ITA NO. 3647/M/2017 4 ORDER DATED 15.11.2017 PASSED BY HON'BLE ITAT, MUMBAI IN THE CASE OF ACIT VS. RAMESH RAMSWARUPDAS JINDAL IN ITA NO. 3091 TO 3096/M/2017 5 ORDER DATED 12.04.2017 PASSED BY HON'BLE ITAT, MUMBA I IN THE CASE OF RELIANCE CORPORATION VS. ITO IN ITA NO. 1069 TO 1071/M/2017 6 ORDER DATED 01.02.2019 PASSED BY HON'BLE ITAT, MUMBAI IN THE CASE OF RITU KAMAL SINGHAL.VS. ITO IN ITA NO. 3017/M/2018 - 7 ORDER DATED 14.11.2017 PASSED BY HON'BLE ITAT, M UMBAI IN THE CASE OF ITO VS. SHREEDHAM CONSTRUCTION P. LTD. IN ITA NO. 3754 TO 3756/M/2017 8 ORDER DATED 29.12.2017 PASSED BY HON'BLE ITAT, MUMBAI IN THE CASE OF SHREE LAXMI ESTATE PVT. LTD. IN ITA NO. 5954/M/2016 7 . ON THE OTHER HAND LEARNED DR SUBM ITTED THAT SHRI PRAVIN KUMAR JAIN IS A HAWALA OPERATOR AND HE INDULGED IN VARIOUS TRANSACTIONS INVOLVING HAWALA AS WELL AS ACCOMMODATION ENTRY AND ASSESSEE HAS NOT PROVED THE GENUINETY OF THE TRANSACTIONS AND HE RELIED UPON THE ORDERS PASSED BY THE REVENUE AUTHORITIES. 8 . CONSIDERING THE RIVAL SUBMISSIONS AND MATERIAL PLACED ON RECORD, WE NOTICE, ASSESSEE HAS TAKEN UNSECURED LOAN FROM THE 6 I.T.A. NO. 5881, 5882 & 5883/MUM/2018 SUNIL KUMAR TIBREWAL, COMPANY M/S RYAN INTERNATIONAL THROUGH BANK AND THE SAME WAS SETTLED BY THE ASSESSEE WITHIN THE SAME ASSESSMENT YEAR AG AIN THROUGH THE BANK ONLY. ASSESSEE HAS FILED BEFORE TAX AUTHORITIES, THE CONFIRMATION OF M/S RYAN INTERNATIONAL, LEDGER COPY IN THE BOOKS OF M/S RYAN INTERNATIONAL AND BANK STATEMENT OF ASSESSEE AS WELL AS M/S RYAN INTERNATIONAL. THESE DOCUMENTS INDICATE D THAT ASSESSEE HAS RECEIVED LOANS FROM M/S RYAN INTERNATIONAL AND SETTLED THE SAME BEFORE END OF THE YEAR. THE A O HAS ONLY CONSIDERED THE ACCOUNTING ENTRY IN THE BOOKS OF ACCOUNTS AND CONSIDERED THE SAME AS ACCOMMODATION ENTRY WITHOUT CONSIDERING THE RECE IPT OF PAYMENT THROUGH BANK AND SETTLEMENT OF THE LOAN BY THE ASSESSEE THROUGH BANK. JUST BECAUSE THIS COMPANY CONTROLLED BY SHRI PRAVIN KUMAR JAIN, ALL THE TRANSACTIONS CANNOT BE TERMED AS ACCOMMODATION ENTRY UNLESS IT IS PROVED . BUT, IN THE GIVEN CASE, A SSESSEE HAS TAKEN UNSECURED LOAN THROUGH BANK AND REPAID THE SAME WITHIN THE SAME YEAR. BY TAKING LOAN AND REPAYING THE SAME THROUGH BANK, WHAT IS THE BENEFIT ASSESSEE WOULD HAVE GOT, IS THERE ANY REVENUE IMPACT IN THIS TRANSACTION AND HOW IT WILL IMPACT T HE TAX COLLECTION, NOTHING WAS BROUGHT ON RECORD. FURTHER, AO HAS MADE ADDITION ONLY 7 I.T.A. NO. 5881, 5882 & 5883/MUM/2018 SUNIL KUMAR TIBREWAL, RELYING ON THE REPORT FROM DGIT(INV), MUMBAI. 9. FURTHER, IN THE SIMILAR CASE, COORDINATE BENCH OF ITAT IN ITA NO. 4691 & 4692/MUM/2015 HAS HELD AS UNDER: - 11. WE HAVE A LSO GONE THROUGH THE DECISIONS RELIED UPON BY THE LEARNED AR. WE NOTED THAT THIS TRIBUNAL IN SIMILAR CIRCUMSTANCES IN THE CASE OF KOMAL AGROTECH PVT. LTD. VS. ITO IN ITA NO. 437/HYD/2016 VIDE ITS ORDER DATED 25.11.2016 HAS HELD AS UNDER: A PLAIN READING O F THE ASSESSMENT ORDER DEMONSTRATES THAT THE AO MERELY WENT BY THE INVESTIGATION DONE BY THE OFFICE OF D.G.I (INVESTIGATION), MUMBAI. NO ENQUIRIES OR INVESTIGATION WAS CARRIED OUT. NO EVIDENCE TO CONTROVERT THE CLAIMS OF THE ASSESSEE WAS BROUGHT ON THE REC ORD BY THE AO. EVEN THE STATEMENT OF SHRI PRAVEEN KUMAR WAS SUPPLIED. NOTHING IS ON RECORD ABOUT THE RESULT IF INVESTIGATIONS DONE BY DGIT (LNV), MUMBAI. THE PAPERS FILED BY THE ASSESSEE DO DEMONSTRATE THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION. THE ADDITION IS MADE MERELY ON SURMISES AND CONJECTURES. IN VIEW OF THE ABOVE, WE HOLD THAT THE ADDITION MADE UNDER SECTION 68 OF THE ACT IS BAD IN LAW. WE NOTED THAT IN THE SAID CASE ALSO LOAN HAD BEEN RECEIVED FROM JAVDA INDIA IMPEX LTD. 8 I.T.A. NO. 5881, 5882 & 5883/MUM/2018 SUNIL KUMAR TIBREWAL, 1 2. BEING CONSISTENT WITH THE VIEW TAKEN BY THIS CO - ORDINATE BENCH IN THE CASE OF KOMAL AGROTECH PVT. LTD. (SUPRA), AND IN VIEW OF THE FACTS AND CIRCUMSTANCES, WE DO NOT FIND ANY ILLEGALITY OR INFIRMITY IN THE ORDERS OF THE CIT(A). IT IS ACCORDINGLY, CONFIR MED FOR BOTH THE YEARS UNDER APPEAL. 1 3 . IN THE RESULT, THE APPEALS FILED BY THE REVENUE ARE DISMISSED. 10. THEREFORE, RESPECTFULLY FOLLOWING THE ABOVE DECISION, WE ARE INCLINED TO ACCEPT THE CONTENTIONS OF LD. AR AND ACCORDINGLY, GROUNDS RAISED BY THE AS SESSE ARE ALLOWED. 11. SINCE, ALL THE FACTS ARE SIMILAR IN NEXT TWO ASSESSMENT YEARS I.E. AY 2011 - 12 AND 2013 - 14, ACCORDINGLY THESE APPEALS ARE ALSO ALLOWED. 12 . IN THE NET RESULT, ALL THE THREE APPEAL S FILED BY THE ASSESSEE STA NDS ALLOWED . ORDER PRONOU NCED IN THE OPEN COURT ON 16 TH OCT 20 19 . SD/ - SD/ - ( RAM LAL NEGI ) (S. RIFAUR RAHMAN ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 16 . 10 .201 9 SR.PS . DHANANJA Y 9 I.T.A. NO. 5881, 5882 & 5883/MUM/2018 SUNIL KUMAR TIBREWAL, / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI