KEYSTONE REALTORS PRIVATE LIMITED, MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX - CENTRAL CIRCLE 2(4), MUMBAI

ITA 951/MUM/2018

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 0641 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 20-07-2022
• Assessment Year: 2007-2008
• Appeal Filed On: 15-02-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Bogus purchase; Search and seizure; Difference of opinion; Accommodation entries; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 131; 148; 37; 143(3); 142(1); 153A; 143(2); 191; 48; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “H”, MUMBAI BEFORE SHRI ABY T VARKEY, JUDICIAL MEMBER AND SHRI GAGAN GOYAL, ACCOUNTANT MEMBER ITA No. 951/Mum/2018 (A.Y. 2007-08) ITA No. 3939/Mum/2018 (A.Y. 2007-08) ITA No. 986/Mum/2018 (A.Y. 2008-09) ITA No. 987/Mum/2018 (A.Y. 2009-10) ITA No. 988/Mum/2018 (A.Y. 2010-11) ITA No. 989/Mum/2018 (A.Y. 2011-12) Keystone Realtors Pvt. Ltd., 702, Natraj, M.V. Road, Junction W.E. Highway, Andheri (E), Mumbai-400069. PAN: AAACK2499Q ...... Appellant Vs. DCIT, Central Circle-2(4), Aayakar Bhavan, M.K. Road, Mumbai-400020 ..... Respondent Appellant by : Sh. Naresh Kumar Respondent by : Sh. Anil. S. Sant, Sr.DR Date of hearing : 21/07/2022 Date of pronouncement : 17/10/2022 ORDER PER GAGAN GOYAL, A.M: These six appeals by the assessee are directed against the order of Commissioner of Income Tax (Appeals)-48, Mumbai [hereinafter referred to as 2 ITA Nos. 951, 3939, 986, 987, 988 & 989/Mum/2018 Keystone Realtors Pvt. Ltd. (‘CIT(A)’] vide common order dated 20.12.2017 for the Assessment Years (AY) 2007-08, 2008-09, 2009-10, 2010-11 & 2011-12 and order dated 27.04.2018 in ITA No. 3939/Mum/2018 for A.Y. 2007-08 respectively. The assessee has raised the similar grounds of appeal in all the AYs except the variation of amounts in figure. Firstly, we are taking ITA No. 951/Mum/2018 for A.Y. 2007-08 as lead case. The assessee has raised the following grounds of appeal: 1. “The Hon'ble CIT(A) has erred in confirming the order of learned assessing officer in respect of the re-opening of the assessment while issuing notice u/s 148 of Income Tax Act, 1961 in-spite of the fact that assessment was completed U/s 143 (3) r.w.s. 153A of Income Tax Act, 1961. The assessment U/s 143 (3) r.ws. 147 of the Income tax Act, 1961 was completed merely on the basis of change of opinion. In view of the above, the said order passed should be squashed and necessary direction should be given in this regard. 2. Without Prejudice to the Ground No. 1 the Hon'ble CIT(A) has erred in confirming the order of learned assessing officer with respect to reduction of Rs.35,00,000/- from the WIP of the appellant company with regards to the professional fees paid to M/s. Jitnat Infrastructure Pvt. Ltd. during the year under consideration. On the pretext that no services has been rendered by the said party to the appellant company. It is therefore submitted that such reduction in WIP is unreasonable and unjustified and therefore, such reduction of WIP by Rs.35, 00,000/- should be deleted. 3. Your appellant craves to add, alter, or amend any of the grounds of appeal on or before the date of hearing of appeal.” 2. Assessee has also raised the common additional grounds of appeal vide letter dated 05.12.2019 in all the A.Ys. Which are as under: “Additional Ground No 1:- On the facts and in the circumstances of the case, the action of the Ld. AO in reopening the assessment u/s 148 was bad-in-law as no taxable income has escaped assessment. 3 ITA Nos. 951, 3939, 986, 987, 988 & 989/Mum/2018 Keystone Realtors Pvt. Ltd. Additional Ground No 2:- On the facts and in the circumstances of the case, the action of the Ld AO in reopening the assessment u/s 148 was bad-in-law as the assessment sought to be reopened was completed u/s 153A. Additional Ground No 3:- On the facts and in the circumstances of the case, the assessment order passed by the Ld AO requires to be quashed as the Ld AO did not pass the order rejecting the objections to the reopening of the assessment 4 weeks before passing of the assessment order.” 3. Ground No.1 (originally filed) and Ground No. 1 & 2 in the form of additional ground are similar, so substantively our adjudication is required on original Ground No. 1 & 2 and additional Ground No.3. 4. Brief facts of the case are that the assessee filed its return of income on 14.11.2007 declaring total income at Rs. 14,58,44,749/-. The case was selected for scrutiny and the income of the assessee was assessed at Rs. 14,91,23,261/- vide order under section 143(3) of the Act dated 30.11.2009. In this case, a search and seizure action under section 132(1) of the Act was conducted by the Addl. DIT (Inv.) on 21.10.2010. 5. Consequently, proceeding under section 153A of the Act was initiated in this case by way of issue of notice under section 153A of the Act on 27.09.2011. The search assessment was finalized vide order under section 143(3) r.w.s. 153A of the Act dated 31.03.2013 determining the total income at Rs. 20,39,48,230/- under the normal provisions of the Act and at Rs. 15,03,54,635/- under section 115JB of the Act. Subsequently the income of the assessee was recomputed at Rs. 18, 01, 79,560/- giving effect to the order of the Ld. CIT (A) dated 29.07.2014. 6. Meanwhile the case is re-opened by way of issue of notice under section 148 of the Act dated 27.03.2014. A search and seizure action under section 132(1) 4 ITA Nos. 951, 3939, 986, 987, 988 & 989/Mum/2018 Keystone Realtors Pvt. Ltd. of the Act was conducted by the Department in the case of “Rustomjee- Evershine” Group on 21.10.2010. By virtue of this search statement of Shri Percy S. Chowdhry, Company Secretary of Rustomjee Group was recorded on oath. Further, an open enquiry was also conducted on 30.11.2012 at the premises of the assessee and also at the premises of M/s Jitnet Infrastructure Pvt. Ltd. (for short ‘JIPL’). This open enquiry was conducted under section 131 of the Act on tax evasion petition in the case of Shri. Jitendra Awhad. During the course of enquiry proceedings, ledger account of JIPL had been provided by the assessee. 7. During the course of enquiry, a fact emerged that assessee and M/s Brickwork Trading Pvt. Ltd. (BTPL) appointed Mr. Jitendra S. Awhad as Consultant for providing advisory services for a period of five years commencing from 01.07.2006 vide an unregistered agreement dated 19.03.2007. 8. For the period Financial Year (FY) 2006-07 to 2011-12 following payments were made by the companies mentioned below: Financial Year Kaptstone Constriction Pvt. Ltd. Brickwork Trading Pvt. Ltd. Keystone Realtors Pvt. Ltd. Total 2006-07 60,00,000/- 25,50,000/- 25,50,000/- 1,05,00,000/- 2007-08 60,50,000/- 30,00,000/- 30,00,000/- 1,24,50,000/- 2008-09 70,83,908/- 32,42,409/- 32,42,409/- 1,35,68,729/- 2009-10 90,11,711/- 38,68,065/- 44,43,717/- 1,73,23,493/- 2010-11 88,08,564/- 36,72,996/- 44,73,768/- 1,69,55,328/- 2011-12 14,68,094/- 9,18,249/- 11,18,442/- 35,04,785/- 5 ITA Nos. 951, 3939, 986, 987, 988 & 989/Mum/2018 Keystone Realtors Pvt. Ltd. 9. During the course of assessment proceedings, the AO observed following facts about the consultancy charges claimed by assessee. The observation of the AO is as under: “It is further seen that the payments have been made prior to the date of agreement and thus been regularized by making unregistered agreement on 19.03.2007. To this Shri Percy S. Chowdhary, one of the Directors of the group companies in his statement recorded on oath during the course of action had stated that no written agreement was entered for F.Y. 2005-2006 and 2006-07 prior this agreement and past payments ratified by this agreement. Here, the question is how M/s Rustomji group made such huge payments in the F.Y 2006- 2007 without any documentation. It is further strange to see from the statement of Shri Percy Chouwdhary that the past payments have been ratified by this agreement dated 19.03.2007. An agreement was entered by Shri Jitendra Awhad with Keystone Realtors Pvt. Ltd. and Brickwork Trading Pvt. Ltd. on 19.03.2007, while no such documentation has been produced for Kapstone Construction Pvt. Ltd. whereas, is seen that the payments have been made by M/s Keystone Realtors Pvt. Lad, M/s. Brickwork Trading Pvt. Ltd. and also M/s. Kapstone Construction Pvt. Ltd. To this query Shri Boman Irani, one of the Directors in group companies in his statement recorded on oath on 11.12.2012 has emphasized on the world ‘oral understanding and contract’ which clearly shows, that the assessee has dealt with this issue as per his convenience like the agreement is made with Sheri Jitendra Awhad. Some terms are decided as per oral understanding, payment are made to M/s. Jitnat Infrastructure Pvt. Ltd. some payments are made for the period which is not mentioned in the agreement. Further emphasis is made on the world "payments are made on performance”. On going through the agreement is seen that there were no clause of measuring performance of the service provider. It was, specifically mentioned in the agreement that the payments are obligatory in any of the circumstances, Hence, it appears that the above answer given by Shri Boman Irani is vague and misleading. On perusal of the clause 1 of the agreement it is seen that the agreement was made by the assessee company to avail the business advisory service of Shri Jitendra Awahad. Further, clause 4 (b) of the agreement is not found to be a normal clause of any business transaction or agreement. In the instant case it is 6 ITA Nos. 951, 3939, 986, 987, 988 & 989/Mum/2018 Keystone Realtors Pvt. Ltd. strange to absorb such clause that First Party shall be jointly and severally liable and obliged to pay the same to the Second party under all circumstances even if they have not availed the service of the second party. Thus, it is clear that the Second party is not at all obligatory to provide the business advisory service to the First party. Even if the services are terminated by the second party, he is bound to receive the total remuneration of Rs.3, 66, 30,600/- at any circumstances. On perusal of the statement of Shri Boman R. Irani and Shri Percy D Choudhary one of the Directors of M/s Rustomjee Group recorded on oath, it is seen that they were unable to give satisfactory answer that what services (consultancy or legal) were provided by Shri Jitendra Awhad or M/s Jitnat Infrastructure Pvt. Ltd. They gave evasive answers like services were oral and as per mutual agreement. Further they could not produce any supportive documentary evidence which can substantiate that the services are consultancy and business advisory services. During the enquiry no proof like advisory report, plan, lay out, blueprint, any form of communication has been provided to substantiate that services were been provided. The supporting documents in respect of the transactions were not available with M/s Jitnat Infrastructure Pvt. Ltd. at its Thane Office. It has been stated by Shri D.M. Telange, Accountant of M/s Jitnet Infrastructure Pvt. Ltd. that the company has been providing consultancy services for M/s Rustomji Group in the field of Plan approval from concerned authorities, occupancy certificates and liasioning services related to construction activities. Whereas in the statement, Shri Boman Irani has stated that they wanted to avail the services of Jitendra Awhad for land acquisition, land clustering, land settlement, tenant negotiation, project supervision, site security guidance and various project related work, facilitation, there is apparent contradiction in both the statements.” 10. AO further observed that virtually no services were rendered by M/s Jitnet Infrastructure Pvt. Ltd. (JIPL). Specific query was raised by the AO about the evidence related to services provided was asked for but assessee’s reply in this regard is as under: 7 ITA Nos. 951, 3939, 986, 987, 988 & 989/Mum/2018 Keystone Realtors Pvt. Ltd. “With regards to the professional fees paid to M/s. Jitnat infrastructure Pvt. Ltd, it is submitted that Mr. Sanjay Palikar employee from M/s. Jitnat infrastructure Pvt. Ltd. visited the sites of the assessee company where the construction activity was in process for various onsite consultancy services to be provided. Further in this regards it is requested to your honour to kindly send the notice to the said person as well as M/s. Jitnat Infrastructure Pvt. Ltd. with regards to the said transaction in case your honours have any doubt regarding the rendering of the services by the said party. Correspondence address of Mr. Sanjay Palikar is as follows: Sangharsh Swaroop Enclave, Bhakti Mandir Road, Panchpakhadi, Thane - 400602. Correspondence address of M/s. Jitnat Infrastructure Pvt. Ltd. is as follows: Registered Office: Meena Apartments, Shop no. 111, 1" floor, Eastern Express Highway, Panchpakhadi, Thane - 400602. Correspondence Address: Sangharsh Swaroop Enclave, Bhakti Mandir Road, Panchpakhadi, Thane-400602. It is submitted that Assessee Company had made total payment of Rs.35, 00,000/- of payment made to M/s. Jitnat Infrastructure Pot. Ltd. it is submitted that out of the total amount an amount of Rs.12,50,000/- relates to the project of M/s. Brickswork Trading Pvt. Ltd. after merger with the assessee company on 31.11.2006 and further Rs.22,50,000/- relates to the assessee company which is debited by the assessee company to the WIP. In this regard copy of the ledger account of M/s. Jitnat Infrastructure Pvt. Ltd. in the books of the assessee- company from 01.04.2006 to 31.03.2007 and M/s. Jitnat Infrastructure Pot. Ltd. in the books of M/s. Brickswork Trading Pvt. Ltd. from 01.12.2006 to 31.03.2007. Further it is submitted that the Project Management Consultancy was provided by M/s Jitnat Infrastructure Pvt. Ltd. for the Ozone (commercial) Project related to M/s. Brickswork Trading Pvt. Ltd. and Elita project of the assessee company. In this regard copy of the ledger account of Professional Charges ELITA project from 01.04.2006 to 31.03.2007 in the books of the assessee company and ledger account of professional Charges in the books of M/s. Brickswork Trading Pvt. Ltd. showing the amount transferred to WIP is enclosed for your honours ready reference. 8 ITA Nos. 951, 3939, 986, 987, 988 & 989/Mum/2018 Keystone Realtors Pvt. Ltd. Further details of project wise WIP, details of project-wise expenses debited to P&L account and annual accounts for A.Y. 2012-13 are enclosed. Therefore, it is submitted that as per the details submitted before your honour, it is submitted that the assessee company has received Project Management Consultancy from M/s. Jitnat Infrastructure Pvt. Ltd. and therefore it is submitted that no amount of addition should be made in the case of the assessee company for the year under consideration. Reply of the assessee furnished vides letters dated 13-02-2015 & 16 02-2015 have been perused carefully. In its letter dated 13-02-2015 the assessee has basically given detailed submissions objecting to the proceedings-initiated u/s.147. The contentions raised by the assessee against the proceedings u/s.147 in nutshell are summarized herein below: (a) It is contended that Proceedings u/s.147 can be initiated only if the AO has reason to believe that income chargeable to tax has escaped assessment and AO must have reason to believe that such escapement has occurred by reason of either omission or failure on the part of the assessee to disclose fully or truly all material fact necessary for his assessment...........”. (b) There is no failure on the part of the assessee in disclosure of material facts necessary for completing the assessment. (c) The assessment u/s.143(3) r.w.s. 153A has been made by the AO by application of mind and there is no omission or failure on the part of the assessee to disclose fully or truly ail material facts necessary about any transaction in the books of accounts. (d) The assessee has also placed reliance on the decisions of various Hon'ble Courts in support of its contention and requested for dropping the proceedings- initiated u/s 147. The objections raised by the assessee have been carefully appreciated. It is clear there from that the assessee suffers from a huge obsession of the fact that the re- opening of assessment, as done in its case, is nothing but change of opinion and there is no failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment. The various contentions raised by the assessee clearly indicate its perception that all such re-opening of assessments is unjust, arbitrary, and capricious. In fact, that was precisely the highlight of the entire contention of the assessee in its submission given vide letter dated 13-02-2015. 9 ITA Nos. 951, 3939, 986, 987, 988 & 989/Mum/2018 Keystone Realtors Pvt. Ltd. However, the contentions of the assessee are not found to be acceptable and are rejected on following grounds: -” 11. AO was not convinced with the reply of assessee, objecting re-opening of the case and disallowing Rs. 35, 00,000/- out of WIP. AO relied upon the material available on record, various contradictory statements of Sh. Percy S. Chowdhary, Company Secretary of Rustomjee Group and Shri D.M. Telange, Accountant of JIPL and absence of any supporting document which substantiates the delivery of services like Advisory Report, Plan Layout, Blueprint of the Project, any form of communication between the assessee and the consultant, AO disallowed the amount of Rs. 35, 00,000/- paid to JIPL and debited to WIP. 12. Being aggrieved with the order of the AO, assessee further appealed before the Ld. CIT (A)-48, Mumbai. Ld. CIT (A) also sustained the order of AO and assessee’s appeal was rejected on both the grounds i.e., re-opening of the case and disallowance of consultancy charges debited to WIP. 13. Being further aggrieved, assessee preferred an appeal before us against the order of authorities below. We have gone through the order of AO, procedure followed for re-opening of the case, order of Ld. CIT (A) and considered the submissions of the assessee in the light of the facts available on record and case laws in their favour relied upon. 14. In our consideration, following facts emerged out of the orders mentioned (supra) and assessee’s submission. As elaborated by Ld. CIT (A) also as under: “No definite finding was given in this order regarding payment to Shri Jitendra Awhad / M/s. Jitnat Infrastructure Pvt. Ltd. Thus, no definite opinion was formed by A.O. about this payment or nature of services rendered by Shri Jitendra Awhad / M/s. Jitnat Infrastructure Pvt. Ltd. 10 ITA Nos. 951, 3939, 986, 987, 988 & 989/Mum/2018 Keystone Realtors Pvt. Ltd. Subsequently, specific inquiry was conducted regarding genuineness of services rendered by Shri Jitendra Awhad / M/s. Jitnat Infrastructure Pvt. Ltd to assessee and field verification was done. Statements of Shri Boman R. Irani, Shri Percy D. Chaudhary (directors of Assessee Company) and Shri D M Telange (accountant of Jitendra Awhad / M/s. Jitnat Infrastructure Pvt. Ltd) were recorded.Document of Agreement (unregistered) dated 19.03.2007 was obtained and its inconsistencies were discovered. This document was not examined earlier. The agreement was between Assessee Company and Shri Jitendra Awhad (Individual) and there was no mention of company or any co-relation with company. Fact of No actual services/consultancy by Shri Jeandra Awhad/M/s. Jitnat Infrastructure Pvt. Ltd. was found for the first-time during field inquiries.AO received the field report, and all accompanying documents/statements vide letter dated 24.03.2014 from DIT Inv. Unit 1(3).New facts came to knowledge of AO about underlying and hidden facts regarding payment made to Shri Jitendra Awhad/M/s. Jitnat Infrastructure Pvt. Ltd. by assessee company and shamness of the Agreement was too obvious from its various clauses. Based on these details Prima-facie reasons to believe was formed in the mind of AO that payment to Shri Jitendra Awhad/M/s. Jitnat Infrastructure Pvt. Ltd. is not allowable u/s. 37 as it is not wholly and exclusively for business propose and needs to be disallowed. Satisfaction Note of AO is Elaborate, and all facts related are discussed. The satisfaction note is consisting of about 15 paragraphs and three pages. The application of mind on the newly discovered facts by AO is crystal clear from perusal of reasons recorded. There is No Case of Change of Opinion as no opinion was formed on this issue earlier. Approval from CIT(C) was duly obtained vide his letter dated 04.03.2014 and notice was issued subsequently. Later notices u/s 142(1) and 143(2) were also issued and served on 15.01.2016 as per the facts on pages 12 and 13 of the assessment order. Requirement of section 147, 149 and 151 were duly met with by: - AO in this case as is evident from the above facts duly complied with all the requirements of the law as per various relevant sections. On objections raised by assessee for reopening of assessment vide letter dated 25.08.2015 AO ay dealt with these objections vide detailed order dated 15.01.2016 The requirement of Sec. 147 is only to have prima-facie reason to believe that income has escaped assessment has been held in plethora of case laws that at the time of reopening AO is not required to establish the escapement of Income. 11 ITA Nos. 951, 3939, 986, 987, 988 & 989/Mum/2018 Keystone Realtors Pvt. Ltd. The existence of reason is enough in this regard; reliance is placed on following case laws of the Apex Court. a. Kalyanji Maji & Co. v/s CIT (SC) 102 ITR 287 b. ITO v/s Lakhmani Mewal Das (SC) 103 ITR 437 c. Phool Chand Bajrang Lal and Another v/s ITO & Anr. (SC) 203 ITR 456 d. Sri Krishna (P) Ltd. v/s CIT (SC)221 ITR 538 e. Central Provinces Manganese Ore Co. Ltd. v/s ITO (SC) 191 ITR 662 Apart from above facts emerging in this case, there are various case laws which support reopening of assessment on similar facts Same of there are being quoted below for ready reference: - ITO vs Purshottam Das Bangur 90 Taxmann.com 541 (SC) - wherein it was propounded by Hon’ble SC that information contained in letter of Directorate of Investigation could be said to be definite information and ITO could act upon for taking action u/s 147(b) and ITO could have formed opinion that there was reason to believe that income had escaped. Phoolchand Bajrang Lal v/s ITO 69 Taxman 627 (SC)- on identical facts as in the impugned case, on subsequent information it was found that transactions were found to be bogus and hence, mere disclosure of such transactions at the time of original assessments cannot be said to be disclosure of "true" and "full facts" of the case and hence ITOS jurisdiction to reopen such concluded assessment was held as justifiable. Nickunj Eximp Enterprise v/s ACIT 48 Taxmann.com 20 (Bombay HC). Since genuineness of purchase bills was not subject matter of original assessment u/s 143(3) and these bills being bogus was discovered subsequently to 143(3) during survey. Sohar Siraj Lokhandwala v/s ACIT (77 Taxman 307) Bombay H.C: Mere submissions of documents in the original assessment but not disclosing full & true facts of these and if some material lies embedded in evidence while assessee could have uncovered More but did not will amount to not disclosing full facts by assessee. Thus, in the instant case, the fact of these companies being bogus and only providing entry was not disclosed by assessee, hence what was submitted was not true. Therefore, it was a failure on the part of assessee. 12 ITA Nos. 951, 3939, 986, 987, 988 & 989/Mum/2018 Keystone Realtors Pvt. Ltd. Yash Raj Films Pvt Ltd vs ACIT 15 Taxmann.com 275 Bombay High Court: In this case, it was based on survey action that several new facts came to light and several discrepancies in the accounts of assessee were discovered which indicated escapement of income thus reopening was held valid. Yogendra Kumar Gupta Vs. ITO (51 taxmann.com 383 (SC)/[2014] 227 Taxman 374):- Where subsequent to completion of original assessment, Assessing Officer, on basis of search carried out in case of another person, came to know that loan transactions of assessee with a finance company were bogus as said company was engaged in providing accommodation entries, it being a fresh information, he was justified in initiating reassessment proceeding in case of assessee. Paramount communication Pvt. Ltd. Vs. PCIT (2017-TIOL-253-SC-IT): - SLP of assessee dismissed. Information regarding bogus purchase by assessee received by DRI from CCE which was passed on to revenue authorities was 'tangible material outsider record to initiate valid reassessment proceedings.” 15. Assessee’s earlier assessment order was passed under section 153A of the Act that itself confirms the scope of the assessment was limited to verification of incriminating material found during the search. An assessment order under section 153A r.w.s 143(3) of the Act does not deal with the materials other than incriminating material found during the search. Assessee’s claim that he has already disclosed the amount debited and paid to JIPL was duly reflected in the books of accounts and verified also by the AO is not correct. For verification other than amount debited in the books of accounts nothing was there like agreement of consultancy, reports prepared by consultant or any other material which substantiates the genuineness of the expenditure. It is only after a report from DDIT (Inv.) Unit-1(3), Mumbai dated 24.03.2014 was received against an enquiry conducted on JIPL with reference to a Tax Evasion Petition filed against JIPL. 16. With reference to this report various people from assessee’s side and JIPL were examined on oath with relevant agreement, etc. Claim of the assessee that 13 ITA Nos. 951, 3939, 986, 987, 988 & 989/Mum/2018 Keystone Realtors Pvt. Ltd. action under section 147 is merely a change of opinion, hence not tenable is unwarranted in the light of report of DDIT (Inv.) Unit-1(3), Mumbai and contradictory statements given by various persons of both the sides, we found action of the AO under section 147 of the Act as legitimate one and original Ground No.1 and Additional Ground Nos. 1 & 2 are dismissed. 17. Ground no-2 of the original ground sheet is about disallowance of Rs 35 lakhs paid to M/s JIPL and debited to WIP in the balance-sheet. We have gone through the order of the AO containing statements of various people of assessee and accountant of M/s JIPL. In their statement witnesses of both the side talked about various services rendered by M/s JIPL. Although, the statements were contradictory in nature and failed to substantiate the true nature of services rendered by M/s JIPL. Further it is noticed that despite of ample opportunity to the assessee before the AO and Ld. CIT (A), assessee failed to discharge his duty to advance some evidence/proof of delivery of service. Where the payment to a consultant (JIPL) was being made in crores of rupees over the period, it is highly inconvincible that with reference to services rendered there is not even a single document /report/communication ever submitted by assessee. Even a layman will not convince that after paying crores of rupees over the period to consultant assessee is not in possession of any document in the form of report/advice/road map/blueprint about the project, company, HR matters, Legal matters, financial matters, Engineering Services etc. Assessee’s counsel vehemently argued the matter but despite of bench’s specific reference about the reports of deliverables his reply was not satisfactory. 14 ITA Nos. 951, 3939, 986, 987, 988 & 989/Mum/2018 Keystone Realtors Pvt. Ltd. 18. In the lights of above observation at all the forums including ITAT, we are of the firm view that this claim of the assessee is liable to be rejected and order of the Ld. CIT(A) is in right perspective requires no interference. Original Ground no- 2 of the assessee is dismissed. 19. Additional Ground No-3, assessee raised this additional ground vide its application dated 05-12-2019. Through this ground assessee challenged the assessment order passed by the AO as the AO did not pass the order rejecting the objections to the reopening of the assessment 4 weeks before passing of the assessment order. 20. This Ground of appeal raised by the assessee has its roots by virtue of order of Hon’ble Jurisdictional High Court in the case of Asian Paints Ltd Vs DCIT (2008) 296 ITR 90 (Bom). We have respectfully considered this landmark, assessee friendly order of the Hon’ble Jurisdictional High Court. Facts of the case with relevant dates analysed keeping in view the directions of Honourable adjudicating High Court. As per our observation following facts emerged which are relevant to the matter as under: i. In the case of Asian Paints Ltd assessee was promptly complying with the notices of the A.O. whereas in the case under consideration notice u/s 148 was issued on 27-03-2014. Thereafter a copy of the reasons recorded was made available to the assessee on 21-07-2014 assessee till 9 th of February 2015 haven’t responded to the copy of the reasons recorded supplied. In the meantime, on the same date i.e. 21-07-2014 a notice u/s 142(1) and 143(2) were also issued separately. Thereafter a final show cause on 09-02-2105 was issued as the case was getting time barred on 31-03-2015. In response to this final show cause 15 ITA Nos. 951, 3939, 986, 987, 988 & 989/Mum/2018 Keystone Realtors Pvt. Ltd. assessee for the first time furnished the reply/objections against reasons supplied for reopening of the matter. Assessee further made a second and last submission on 16-02-2015. Before these two dates and after these two dates there was no communication by the assessee. Ultimately final assessment order was passed on 12-03-2015 which is almost providing the appropriate time (27 Days) to the assessee before passing the final assessment order. ii. The Honourable jurisdictional High Court came forward to rescue a matter of genuine hardship caused by an AO in that case. Whereas, in this case assessee itself lapsed 7 months in the guise of decision of honourable jurisdictional High Court as mentioned supra. iii. The matter before honourable jurisdictional High Court pertains to an assessee who is prompt in compliance and belief in adjudication process, whereas in the instant case despite of wilful delay assessee appellant wants to take advantage of his own wilful delay and this can’t be the intentions and spirit of honourable jurisdictional High Court while passing the order in the case of Asian Paints Ltd (supra). 21. Moreover, despite of all these exercises, assessee never produced before any form evidence of expenses claimed towards consultancy charges paid to M/s. JIPL. In our humble opinion there is no flaw in the order of AO as far as following the direction of Hon’ble Jurisdictional High Court given in the case of Asian Paints Ltd. (supra) and directions of Hon’ble Supreme Court in the case of M/s. GKN Driveshaft (India) Ltd. [2002] 125 Taxman 963. 16 ITA Nos. 951, 3939, 986, 987, 988 & 989/Mum/2018 Keystone Realtors Pvt. Ltd. 22. In view of the above we don’t agree with additional ground of appeal no. 3 raised by the assessee, hence dismissed. 23. In the result, appeal filed by the assessee is dismissed. ITA No. 3939/Mum/2018 (A.Y. 2007-08) ITA No. 986/Mum/2018 (A.Y. 2008-09) ITA No. 987/Mum/2018 (A.Y. 2009-10) ITA No. 988/Mum/2018 (A.Y. 2010-11) ITA No. 989/Mum/2018 (A.Y. 2011-12) 24. As the facts, grounds of appeal and law applicable is similar to what discussed and decided in ITA No. 951/Mum/2018 for A.Y. 2007-08 (supra). Hence, findings of ITA No. 951/Mum/2018 is mutatis mutandis applicable to all the appeals mentioned above. 25. In the result, all the appeals in ITA No. 3939/Mum/2018 (A.Y. 2007-08), ITA No. 986/Mum/2018 (A.Y. 2008-09), ITA No. 987/Mum/2018 (A.Y. 2009-10), ITA No. 988/Mum/2018 (A.Y. 2010-11) & ITA No. 989/Mum/2018 (A.Y. 2011-12) are dismissed. Order pronounced in the open court on 17 th day of October 2022. Sd/- Sd/- (ABY T VARKEY) (GAGAN GOYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai, िदनांक/Dated: 17/10/2022 SK, Sr.PS Copy of the Order forwarded to: 1. अपीलाथŎ/The Appellant , 2. Ůितवादी/ The Respondent. 17 ITA Nos. 951, 3939, 986, 987, 988 & 989/Mum/2018 Keystone Realtors Pvt. Ltd. 3. आयकर आयुƅ(अ)/ The CIT(A)- 4. आयकर आयुƅ CIT 5. िवभागीय Ůितिनिध, आय.अपी.अिध., मुबंई/DR, ITAT, Mumbai 6. गाडŊ फाइल/Guard file. BY ORDER, //True Copy// (Dy. /Asstt. Registrar) ITAT, Mumbai