SHRAWANKUMAR BAJAJ, MUMBAI V. DCIT CC 3, MUMBAI

ITA 6395/MUM/2011

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0794 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 26-04-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 16-09-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S S KEMWAL
• Keywords: Search and seizure; Accommodation entries
• Section: 143(3); 153A; 234B; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI BEFORE SHRI SAKTIJIT DEY, JM & SHRI MANOJ KUMAR AGGA RWAL, AM ITA NOS. 6395, 6396 & 6397/MUM/2011 ASSESSMENT YEARS 2006-07, 2008-09 & 2009-10 SHRAWANKUMAR BAJAJ, B-2, FLAT NO.308, VENKATESHWAR CABIN ROAD, BHAYANDER (E) MUMBAI PAN : AAKPB0202B DCIT CC 3 MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI S S KEMWAL DATE OF HEARING : 2 6 .0 4 .2017 DATE OF PRONOUNCEMENT : 09 .0 5 .2017 O R D E R PER SAKTIJIT DEY, JUDICIAL MEMBER: AFORESAID APPEALS BY THE ASSESSEE ARE AGAINST SEPA RATE ORDERS OF LEARNED CIT(A)-36, MUMBAI, FOR ASSESSMENT YEARS 200 6-07, 2008-09 AND 2009-10. SINCE, GROUNDS RAISED BY THE ASSESSEE IN ALL THESE APPEALS ARE COMMON, EXCEPT THE QUANTUM OF ADDITIONS MADE, FOR T HE SAKE OF CONVENIENCE, WE PROPOSE TO REPRODUCE HEREUNDER THE GROUND RAISED IN ITA NO.6395/MUM/2011 FOR A.Y. 2006-07 : 1. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACT S IN UPHOLDING THE ORDER PASSED BY THE ASSESSING OFFICER U/S. 143(3) R.W.S. 153A OF THE INCOME-TAX ACT, 1961 WHIC H IS INVALID AND BAD IN LAW. ITA NOS 6395 TO 6397/MUM/2011 SHRI SHRAWAN KUMAR BAJAJ. 2 2. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONCURRING WITH THE ASSESSING OFFICER IN INVOKING T HE PROVISIONS OF S.145(3) OF THE ACT. 3. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN SUSTAINING THE FINDINGS OF THE ASSESSING OFFICER TH AT THE APPELLANT IS ENGAGED IN THE BUSINESS OF PROVIDING ACCOMMODATION ENTRIES TO NIBR BULLION PVT. LTD. AND OTHERS IN DISREGARD TO THE PURCHASE AND SALE TRANSACTIONS CARRIED DURING THE RELEVANT PREVIOUS YEAR; AND IN UPHOLDING THE ADDITION OF ` .11,95,946/-. 4. WITHOUT PREJUDICE TO THE ABOVE, THE SUSTENANCE O F ALLEGED COMMISSION INCOME @0.5% BEING VERY EXCESSIVE AND UNREASONABLE REQUIRES TO BE SUBSTANTIALLY REDUCED. 5. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE LEVY OF INTEREST U/S. 234B OF THE INC OME-TAX ACT. 2. BRIEFLY, FACTS ARE, A SEARCH AND SEIZURE OPERATI ON U/S. 132 OF THE ACT WAS CONDUCTED IN THE CASE OF NIBR GROUP ON 25.09.20 08 AND THE ASSESSEE, WHO IS AN INDIVIDUAL, WAS ALSO COVERED UNDER THE SA ID SEARCH AND SEIZURE OPERATION. AS A CONSEQUENCE OF THE SEARCH AND SEIZ URE OPERATION, PROCEEDINGS U/S. 153A WAS INITIATED IN CASE OF THE ASSESSEE FOR THE AFORESAID ASSESSMENT YEARS. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO ON THE BASIS OF INCRIMINATING MATERIAL FOUND DURING TH E SEARCH AND SEIZURE OPERATION AS WELL AS THE STATEMENT RECORDED FROM TH E ASSESSEE CONCLUDED THAT ASSESSEE WAS ACTUALLY PROVIDING ACCOMMODATION ENTRIES BY ISSUING BOGUS SALES BILLS. ACCORDINGLY, HE ESTIMATED THE COMMISS ION INCOME BY APPLYING 0.5% ON THE TOTAL TURNOVER SHOWN BY THE ASSESSEE AT ` .25,12,62,994/-, WHICH WORKED OUT TO ` .13,81,946/-. AS THE ASSESSEE HAS DECLARED INCOME OF ITA NOS 6395 TO 6397/MUM/2011 SHRI SHRAWAN KUMAR BAJAJ. 3 ` .1,86,000/- IN THE RETURN OF INCOME, THE BALANCE AM OUNT OF ` .11,95,946/- WAS ADDED BACK TO THE INCOME OF THE ASSESSEE BY THE AO. SIMILAR ADDITIONS WERE ALSO MADE IN THE OTHER TWO A SSESSMENT YEARS UNDER APPEAL. 3. THE ADDITIONS MADE BY THE AO IN THESE ASSESSMENT YEARS WAS CHALLENGED BY THE ASSESSEE BY PREFERRING APPEAL BEF ORE THE CIT(A). HOWEVER, THE LEARNED CIT(A) ALSO CONFIRMED THE ADDITIONS MAD E BY THE AO. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. 4. WHEN THE APPEALS WERE CALLED FOR HEARING NO ONE APPEARED ON BEHALF OF THE ASSESSEE TO REPRESENT THE CASE. THERE IS AL SO NO APPLICATION SEEKING ADJOURNMENT BY THE ASSESSEE. AS COULD BE SEEN FROM RECORD, THESE ARE VERY OLD APPEALS PERTAINING TO THE YEAR 2011. IT IS ALS O EVIDENT FROM ORDER SHEET ENTRIES, ON EARLIER OCCASIONS WHEN THE APPEALS WERE FIXED FOR HEARING NO ONE HAS APPEARED FOR THE ASSESSEE. IN FACT, PERUSAL OF RECORD SHOWS THAT NOTICES OF HEARING ISSUED TO THE ASSESSEE THROUGH RPAD HAVE RETURNED UNSERVED WITH THE POSTAL REMARK LEFT. THE AFORESAID FACTS REVEA L THAT THE ASSESSEE IS NOT AT ALL INTERESTED IN PURSUING ITS APPEALS. THEREFORE, WE PROCEED TO DISPOSE OF THE APPEALS EXPARTE, QUA THE ASSESSEE, AFTER HEARIN G LEARNED DR AND ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. ITA NOS 6395 TO 6397/MUM/2011 SHRI SHRAWAN KUMAR BAJAJ. 4 5. ON PERUSAL OF THE IMPUGNED ASSESSMENT ORDERS, WE HAVE NOTICED THAT IN THE COURSE OF SEARCH AND SEIZURE OPERATION CONDU CTED IN CASE OF ASSESSEE AND OTHER RELATED CONCERNS, INCRIMINATING MATERIALS WERE FOUND AND SEIZED, WHICH REVEALED THAT THE ASSESSEE WAS NOT INVOLVED I N ACTUAL PURCHASE AND SALE TRANSACTIONS BUT WAS PROVIDING ACCOMMODATION E NTRIES BY ISSUING BOGUS SALES BILLS. IN FACT, THE AFORESAID MODUS OPERANDI OF THE ASSESSEE WAS CORROBORATED THROUGH OTHER EVIDENCES INCLUDING STAT EMENT RECORDED FROM THE ASSESSEE. THEREFORE, ON THE BASIS OF SEIZED MATER IAL AND EVIDENCES BROUGHT ON RECORD, THE AO REJECTED THE BOOKS OF ACCOUNT OF THE ASSESSEE AND ESTIMATED COMMISSION INCOME @ 0.5% OF THE TOTAL TUR NOVER SHOWN. NEITHER BEFORE THE CIT(A) NOR BEFORE US, THE ASSESSEE HAS B ROUGHT ANY SUBSTANTIVE EVIDENCE/MATERIAL TO CONTROVERT THE FINDINGS OF THE AO. THAT BEING THE CASE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CI T(A) IN UPHOLDING THE VALIDITY OF THE ASSESSMENT MADE U/S. 153A OR ESTIMA TION OF COMMISSION INCOME AFTER REJECTING THE BOOKS OF ACCOUNT. 6. AS FAR AS INTEREST CHARGED U/S. 234B IS CONCERNE D, LEVY OF SUCH INTEREST BEING MANDATORY AND CONSEQUENTIAL, WE DO NOT SEE AN Y REASON TO INTERFERE WITH THE ORDERS OF THE DEPARTMENTAL AUTHORITIES ON THIS ISSUE. 7. THE AFORESAID DECISION APPLIES MUTATIS MUTANDIS TO THE OTHER TWO APPEALS AS WELL. ITA NOS 6395 TO 6397/MUM/2011 SHRI SHRAWAN KUMAR BAJAJ. 5 8. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE A RE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 9 TH DAY OF MAY 2017. SD/- SD/- (MANOJ KUMAR AGGARWAL) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUD ICIAL MEMBER MUMBAI; DATED : 9 TH MAY, 2017 SA COPY OF THE ORDER FORWARDED TO : 1. THE APP ELL ANT. 2. THE RESPONDENT. 3. T HE CIT(A), MUMBAI 4. THE CIT 5. DR, E BENCH, ITAT, MUMBAI BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, MUMBAI