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

ITA 5894/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7481 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2020
• 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: KUMAR PADAMPA NI BORA
• Keywords: Principle of natural justice; Accommodation entries; Onus to prove; Reassessment proceedings; Set aside
• Section: 133(6); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEFORE SHRI R.C.SHARMA, ACCOUNTANT MEMBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER ITA NO.5894/MUM/2018(A.Y.2010-11) ITA NO.5895/MUM/2018(A.Y.2011-12) ITA NO.5896/MUM/2018(A.Y.2012-13) ANIL KUMAR TIBREWAL, 145A, 1 ST FLOOR, SHOP NO.13,14,15, DR.BEIGAS ROAD, GAIWADI, KALBADEVI, MUMBAI 400 002. PAN:AABPT 2575N ...... APPELLANT VS. DY. COMMISSIONER OF INCOME TAX, CIRCLE-4(3)(1), MUMBAI. ..... RESPONDENT APPELLANT BY : SHRI SATISH R. MODY RESPONDENT BY : SHRI KUMAR PADAMP ANI BORA DATE OF HEARING : 12/12/2019 DATE OF PRONOUNCEMENT : 29/01/2020 ORDER PER VIKAS AWASTHY, JM: THESE THREE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-2, MUMBAI [IN SHORT THE CIT(A) ] FOR THE ASSESSMENT YEAR 2010-11, 2011-12 AND 2012-13. ALL THESE THREE IMPUGNED ORDERS BY THE CIT(A) ARE OF EVEN DATE I.E. 14/08/20 18. SINCE, THE ISSUE RAISED IN ALL THE APPEALS IS IDENTICAL AND EMANATES FROM SAME SET OF FACTS, THESE APPEALS ARE TAKEN UP TOGETHER FOR ADJUDICATION AND ARE DISP OSED OF BY THIS COMMON ORDER. 2 ITA NO.5894/MUM/2018(A.Y.2010-11) ITA NO.5895/MUM/2018(A.Y.2011-12) ITA NO.5896/MUM/2018(A.Y.2012-13) 2. FOR THE SAKE OF CONVENIENCE, THE FACTS ARE EXTR ACTED FROM THE APPEAL OF ASSESSEE IN ITA NO.5894/MUM/2018FOR ASSESSMENT YEAR 2010-11. ITA NO.5894/MUM/2018(A.Y. 2010-11): 3. SHRI SATISH R. MODY APPEARING ON BEHALF OF THE ASSE SSEE SUBMITTED THAT ASSESSMENT FOR ASSESSMENT YEAR 2010-11 WAS REOPENED BY THE ASSESSING OFFICER ON THE INFORMATION RECEIVED FROM DCIT(INV) THAT THE ASSESSEE HAS OBTAINED ACCOMMODATION ENTRIES OF LOAN FROM M/S. MO HIT INTERNATIONAL, A HAWALA CONCERN FLOATED BY PRAVIN KUMAR JAIN. THE A SSESSING OFFICER IN REASSESSMENT PROCEEDINGS OBSERVED THAT THE ASSESSEE HAS OBTAINED ACCOMMODATION ENTRIES IN THE FORM OF UNSECURED LOAN S TO THE TUNE OF RS.8.00 LACS FROM M/S. MOHIT INTERNATIONAL. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE FURNISHED VARIOUS DOCUMENTS TO PROVE GENUINENESS OF THE LOAN TRANSACTIONS. TO SHOW THE IDENTITY OF THE PARTY, THE ASSESSEE FURNISHED POSTA L ADDRESS AND PAN OF THE LENDER ALONGWITH COPY OF INCOME TAX RETURNS. TO SH OW CREDITWORTHINESS OF THE LENDER, THE ASSESSEE FURNISHED ANNUAL FINANCIAL STA TEMENT WITH BANK STATEMENT OF THE LENDER. A PERUSAL OF THE SAME WOULD SHOW TH AT THE LENDER HAS SUFFICIENT FUNDS FOR ADVANCING LOANS. TO PROVE GENUINENESS OF THE TRANSACTION, THE ASSESSEE FILED CONFIRMATION FROM THE LENDER. THE L D.AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICE R RELIED ON THE STATEMENT OF SHRI PRAVIN KUMAR JAIN, WHEREIN HE HAS PURPORTEDLY ADMITTED THAT HE HAS FLOATED CONCERNS THAT ARE SOLELY ENGAGED IN PROVIDING ACCO MMODATION ENTRIES. THE SAID STATEMENT WAS NEVER PROVIDED TO THE ASSESSEE. NO O PPORTUNITY TO CROSS EXAMINE SHRI PRAVIN KUMAR JAIN WAS AFFORDED TO THE ASSESSEE BY THE ASSESSING OFFICER DESPITE SPECIFIC REQUEST. THE LD.AUTHORIZE D REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT THE AUTHORITIES BELOW HAVE VIOLATED THE PRINCIPLE OF 3 ITA NO.5894/MUM/2018(A.Y.2010-11) ITA NO.5895/MUM/2018(A.Y.2011-12) ITA NO.5896/MUM/2018(A.Y.2012-13) NATURAL JUSTICE AND HAVE MADE ADDITION ON THE BASIS OF STATEMENT RECORDED AT THE BACK OF THE ASSESSEE. THE LD.AUTHORIZED REPRES ENTATIVE OF THE ASSESSEE CONTENTED THAT THE SAID STATEMENT OF SHRI PRAVIN KU MAR JAIN HAS NO EVIDENTRY VALUE AS THE SAME HAS ALREADY BEEN RETRACTED BY HIM BEFORE THE CBDT. 5. THE LD.AUTHORIZED REPRESENTATIVE OF THE ASSESSEE ASSERTED THAT THE ADDITION MADE BY THE ASSESSING OFFICER IS NOT SUSTA INABLE AS THE ASSESSING OFFICER MADE INDEPENDENT ENQUIRY BY ISSUING NOTICE UNDER SECTION 133(6) TO M/S. MOHIT INTERNATIONAL. THE SAID LENDER HAS FURN ISHED REPLY TO THE NOTICE AND HAS ADMITTED THAT IT HAS ADVANCED MONEY TO THE ASSE SSEE /APPELLANT. THE LD.AUTHORIZED REPRESENTATIVE OF THE ASSESSEE FURTHE R CONTENDED THAT ASSESSEE HAS REPAID THE LOAN AMOUNT THROUGH CHEQUE ON 23/03/ 2010. IN SUPPORT OF HIS CONTENTION, LD.AUTHORIZED REPRESENTATIVE OF THE ASS ESSEE REFERRED TO THE BANK STATEMENT OF M/S. MOHIT INTERNATIONAL AT PAGE 39 AND THE ASSESSEE AT PAGE 42 OF THE PAPER BOOK. 6. THE LD.AUTHORIZED REPRESENTATIVE OF THE ASSESSEE FURTHER SUBMITTED THAT THE CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF SHREE SHANKAR SAREES VS. ITO IN ITA NO.2750/MUM/2009 FOR ASSESSMENT YEAR 200 8-09 DECIDED ON 31/10/2019, WHEREIN SIMILAR ADDITION WAS MADE IN RE SPECT OF THE LOANS ADVANCED BY M/S. MOHIT INTERNATIONAL DELETED THE AD DITION. TO FURTHER BUTTRESS HIS SUBMISSIONS THAT THE ADDITION CANNOT BE MADE ON THE BASIS OF STATEMENTS RECORDED AT THE BACK OF THE ASSESSEE WITHOUT AFFORD ING OPPORTUNITY TO CROSS EXAMINE, THE LD. AUTHORIZED REPRESENTATIVE OF THE A SSESSEE PLACED RELIANCE ON THE DECISIONS OF DCIT VS. ADHUNIK TRANSPORT ORGANIS ATION LTD., ITA NO.3725/MUM/2017, A.Y.2012-13 DECIDED ON 22/08/2019 . 7. ON THE OTHER HAND, SHRI KUMAR PADAMPANI BORA REPRESENTING THE DEPARTMENT VEHEMENTLY DEFENDED THE IMPUGNED ORDER A ND PRAYED FOR 4 ITA NO.5894/MUM/2018(A.Y.2010-11) ITA NO.5895/MUM/2018(A.Y.2011-12) ITA NO.5896/MUM/2018(A.Y.2012-13) DISMISSING THE APPEAL OF THE ASSESSEE. THE LD.DEPA RTMENTAL REPRESENTATIVE SUBMITTED THAT PRAVIN KUMAR JAIN IN HIS STATEMENT H AD ADMITTED THAT HE HAS FLOATED VARIOUS CONCERNS , WHO ARE ENGAGED IN PROVI DING ACCOMMODATION ENTRIES ONLY. THESE CONCERNS ARE NOT DOING ANY OTHER BUSIN ESS EXCEPT PROVIDING ACCOMMODATION ENTRIES. THE ASSESSEE HAS OBTAINED ACCOMMODATION ENTRIES TO THE TUNE OF RS.8.00 LACS DURING THE PERIOD RELEVANT TO THE ASSESSMENT YEAR UNDER APPEAL FROM ONE OF SUCH CONCERN. THE ASSESSEE NEIT HER PRODUCED THE PARTY NOR THE NOTICE UNDER SECTION 133(6) ISSUED BY THE ASSES SING OFFICER COULD BE SERVED ON THE SAID LENDER. THE NOTICE WAS RETURNED BACK U N-SERVED. THE ASSESSING OFFICER HAD DEPUTED INSPECTOR TO VISIT THE LENDER A T THE GIVEN ADDRESS. THE INSPECTOR REPORTED THAT THE PARTY WAS NOT AVAILABLE AT THE GIVEN ADDRESS. THE LD.DEPARTMENTAL REPRESENTATIVE VEHEMENTLY PRAYED FO R DISMISSING THE APPEAL BY ASSESSEE. 8. WE HAVE HEARD THE SUBMISSIONS MADE BY RIVAL SIDE S AND HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW. THE ADDITION HAS BEEN MADE BY THE ASSESSING OFFICER UNDER SECTION 68 OF THE ACT ON ACCOUNT OF U NPROVED CASH CREDITS. THE CONTENTION OF REVENUE IS THAT THE ASSESSEE HAS OBTA INED ACCOMMODATION ENTRIES FROM M/S. MOHIT INTERNATIONAL ONE OF THE CO NCERNS ASSOCIATED WITH PRAVIN KUMAR JAIN. 8.1 WE HAVE CLOSELY EXAMINED THE FACTS OF THE CASE AND DOCUMENTS ON RECORD. AS PER INDIAN OVERSEAS BANK, MALAD (E), MU MBAI STATEMENT AVAILABLE ON RECORD, THE ASSESSEE HAS RECEIVED RS.8.00 LACS ON 23/09/2009 VIDE CHEQUE NO. 718935. CORRESPONDING DEBIT ENTRY ON 23.09.200 9 IS REFLECTED IN THE BANK STATEMENT OF M/S. MOHIT INTERNATIONAL HAVING BANK A CCOUNT WITH CANARA BANK, KHETWADI BRANCH, MUMBAI. FURTHER, THE CONTENTION O F THE ASSESSEE IS THAT THE SAME AMOUNT HAS BEEN REPAID DURING THE FINANCIAL YE AR 2009-10 ITSELF. A PERUSAL OF THE SAME BANK STATEMENT REVEAL THAT ON 2 5/03/2010, THE ASSESSEE 5 ITA NO.5894/MUM/2018(A.Y.2010-11) ITA NO.5895/MUM/2018(A.Y.2011-12) ITA NO.5896/MUM/2018(A.Y.2012-13) HAS REPAID RS.8.00 LACS VIDE CHEQUE NO.551099. THE CORRESPONDING CREDIT ENTRY IN THE BANK ACCOUNT OF M/S. MOHIT INTERNATIONAL IS RECORDED. THUS, THE LOAN AMOUNT RECEIVED IN THE FINANCIAL YEAR 2009-10 RELEV ANT TO THE ASSESSMENT YEAR 2010-11 WAS REPAID IN THE SAME FINANCIAL YEAR BY TH E ASSESSEE. THE BANK STATEMENTS FURNISHED BY THE ASSESSEE WERE NOT REBUT TED BY THE REVENUE. ONCE THE LOAN AMOUNT WHICH IS SUBJECT MATTER OF DISPUTE HAS BEEN REPAID, THE REPAYMENT OF LOAN HAS BEEN SUBSTANTIATED BY BANKING TRANSACTIONS AND THERE IS NO ALLEGATION THAT THE AMOUNT HAS FLOWN BACK TO THE ASSESSEE IN CASH, ADDITION MADE U/S 68 OF THE ACT IN RESPECT OF SUCH LOAN TRAN SACTION IS UNSUSTAINABLE. 8.2 IN SO FAR AS THE OTHER ASPECTS TO PROVE GENUINE NESS OF THE LOAN TRANSACTION, THE ASSESSEE HAS FILED VARIOUS DOCUMEN TS VIZ. CONFIRMATION FROM THE LENDER (WHICH IS AT PAGE 15 OF THE PAPER BOOK), BANK STATEMENT, AUDIT REPORT AND THE FINANCIAL STATEMENT OF M/S. MOHIT INTERNATI ONAL (LENDER), INCOME TAX RETURN FOR ASSESSMENT YEAR 2010-11, ETC. ALL THESE DOCUMENTS SUBSTANTIATE GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS OF LENDER. THE ASSESSEE HAS DISCHARGED HIS ONUS TO PROVE IDENTITY OF THE LE NDER, CREDITWORTHINESS OF THE LENDER AND THE GENUINENESS OF THE TRANSACTION. 8.3 THUS, IN VIEW OF THE FACTS DISCUSSED ABOVE WE F IND MERIT IN THE APPEAL OF ASSESSEE. THE IMPUGNED ORDER IS SET-ASIDE AND THE ADDITION OF RS.8.00 LACS UNDER SECTION 68 OF THE ACT ON ACCOUNT OF UNPROVED CASH CREDIT IS DIRECTED TO BE DELETED. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ITA NO.5895/MUM/2018, A.Y.2011-12: 10. SHRI SATISH R. MODY, LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT THE FACTS IN TH E ASSESSMENT YEAR UNDER APPEAL ARE SIMILAR. EXCEPT FOR THE LENDER AND THE LOAN 6 ITA NO.5894/MUM/2018(A.Y.2010-11) ITA NO.5895/MUM/2018(A.Y.2011-12) ITA NO.5896/MUM/2018(A.Y.2012-13) AMOUNT, REST OF THE FACTS AND THE MANNER OF ADDITIO N IS SIMILAR. IN ASSESSMENT YEAR 2011-12 THE ASSESSEE HAD TAKEN UNSECURED LOAN OF RS.3.00 LACS FROM M/S. TAJ IMPEX. THE SAID LOAN WAS TAKEN ON 26/06/2010 A ND WAS REPAID ON 30/12/2010. THE ASSESSEE HAD FURNISHED FINANCIAL S TATEMENTS, BANK STATEMENTS AND COPY OF THE INCOME TAX RETURN OF THE LENDER. T HE ASSESSEE HAD ALSO FURNISHED CONFIRMATION OF LOAN FROM THE LENDER. TO SHOW THAT THE LOAN WAS RETURNED BY THE ASSESSEE, THE ASSESSEE HAD FILED CO PY OF HIS BANK STATEMENT TO THE ASSESSING OFFICER. HOWEVER, ALL THESE DOCUMENT S WERE BRUSHED ASIDE BY THE AUTHORITIES BELOW AND THE ADDITION OF RS.3.00 L ACS MADE BY THE ASSESSING OFFICER WAS CONFIRMED THE CIT(A). 11. THE LD.DEPARTMENTAL REPRESENTATIVE VEHEMENTLY D EFENDED THE IMPUGNED ORDER AND REITERATED THE SUBMISSIONS MADE IN ITA NO.5894/MUM/2018 (SUPRA). 12. BOTH SIDES HEARD. IT IS AN UNREBUTTED FACT THA T THE UNSECURED LOAN TAKEN BY THE ASSESSEE DURING THE PERIOD RELEVANT TO THE A SSESSMENT YEAR UNDER APPEAL FROM M/S. TAJ IMPEX WAS REPAID IN THE SAME FINANCIA L YEAR I.E. ON 30/12/2010. SINCE, THE FACTS IN THE ASSESSMENT YEAR UNDER APPEA L ARE SIMILAR TO FACTS IN THE APPEAL OF ASSESSEE FOR ASSESSMENT YEAR 2010-11, THE FINDINGS GIVEN BY US IN THE APPEAL OF THE ASSESSEE IN ITA NO.2010-11 WOULD MUTATIS MUTANDIS APPLY TO THE PRESENT ASSESSMENT YEAR AS WELL. THE IMPUGNED ORDE R IS SET ASIDE AND THE APPEAL OF ASSESSEE IS ALLOWED. ITA NO.5896/MUM/2018, A.Y.2012-13: 13. THE LD.AUTHORIZED REPRESENTATIVE OF THE ASSESSE E SUBMITTED THAT FACTS IN THE APPEAL FOR ASSESSMENT YEAR 2012-13 ARE SIMILAR TO THE FACTS IN ASSESSMENT YEAR 2010-11. IN ASSESSMENT YEAR 2012-13, THE ASSE SSEE HAD TAKEN LOAN OF RS.15.00 LACS FROM M/S. OLIVE OVERSEAS PVT. LTD ON 22.03.2012. THE ASSESSEE HAD REPAID THE ENTIRE LOAN AMOUNT WITH INTEREST ON 16/10/2012. TO SUPPORT HIS 7 ITA NO.5894/MUM/2018(A.Y.2010-11) ITA NO.5895/MUM/2018(A.Y.2011-12) ITA NO.5896/MUM/2018(A.Y.2012-13) CONTENTION THE LD .AUTHORIZED REPRESENTATIVE OF THE ASSESSEE REFERRED TO HDFC BANK ACCOUNT STATEMENT OF THE ASSESSEE. THE LD.AUT HORIZED REPRESENTATIVE OF THE ASSESSEE FURTHER SUBMITTED THAT THE CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS. ADHUNIK TRANSPORT ORGANISATIO N LTD. (SUPRA) HAS DELETED THE ADDITION MADE BY THE REVENUE ON SIMILAR FACTS. IN THE SAID CASE, THE ASSESSEE THEREIN HAD TAKEN LOAN FROM THE SAME LEND ER I.E. M/S. OLIVE OVERSEAS. THE TRIBUNAL UPHELD THE ORDER OF CIT(A) IN DELETING THE ADDITION AND DISMISSED THE APPEAL OF THE ASSESSEE. 14. THE LD.DEPARTMENTAL REPRESENTATIVE VEHEMENTLY D EFENDED THE IMPUGNED ORDER AND REITERATED THE SUBMISSIONS MADE IN ITA NO.5894/MUM/2018 (SUPRA). 15. BOTH SIDES HEARD. WE FIND THAT THE FACTS IN TH E ASSESSMENT YEAR 2012-13 ARE SIMILAR TO ASSESSMENT YEAR 2010-11 AND 2011-12. THE FINDINGS GIVEN BY US WHILE ALLOWING THE APPEALS OF THE ASSESSEE FOR ASSE SSMENT YEAR 2010-11 & 2011- 12 WOULD MUTATIS MUTANDIS APPLY TO THIS APPEAL AS W ELL. THE IMPUGNED ORDER IS SET ASIDE AND THE APPEAL OF THE ASSESSEE IS ALLOWED FOR SIMILAR REASONS. 16. IN THE RESULT, ALL THE THREE APPEALS OF THE ASS ESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON WEDNESDAY, THE 29 TH DAY OF JANUARY, 2020. SD/- SD/- (R.C.SHARMA) (VIKAS AWASTHY) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 29.01.2020 VM , SR. PS(O/S)