Bhagwan Mahavir Education Foundation, Surat V. DCIT (Exmp) Circle-2, Ahmedabad

MA 110/AHD/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 6166 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-09-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 20-03-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: L P JAIN
• Keywords: Reopening of assessment; Application of stay; Accommodation entries
• Section: 254(2); 13; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (VIRTUAL COURT) BEFORE: SHRI MAHAVIR PRASAD, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER BHAGWAN MAHAVIR EDUCATION FOUNDATION SURVEY NO. 149, B/H, E-SPACE NR. SHYAM MANDIR, VIP ROAD, BARTHANA-VASU, SURAT-395007 PAN: AATB8849E (APPELLANT) VS THE DCIT(EXEMPTION), CIRCLE-2, AHMEDABAD (RESPONDENT) REVENUE BY: SHRI L.P. JAIN, SR. D.R. ASSESSEE BY: SHRI PAVAN VED, A.R. DATE OF HEARING : 11-09-2020 DATE OF PRONOUNCEMENT : 11-09-2020 /ORDER PER : AMARJIT SINGH, ACCOUNTANT MEMBER:- THE ASSESSEE HAS FILED MISCELLANEOUS APPLICATION A GAINST THE ORDER OF ITAT VIDE STAY PETITION NO. 96/AHD/2020. IN THE MISCEL LANEOUS APPLICATION, THE ASSESSEE HAS SUBMITTED THAT IT HAS FILED PAPER BOOK CONTAINING ARGUMENT THAT ASSESSMENT ORDER WAS INVALID ON THE POINT OF REOPEN ING, THEREFORE, IT IS REQUESTED TO RECONSIDER THE PETITION FOR GRANTING INTERIM STAY. M.A. NO. 110/AHD/2020 (IN STAY PETITION NO. 96/AHD/2020, ITA NO. 698/AHD/ 2019) ASSESSMENT YEAR 2010-11 M.A NO. 110/AHD/2020 (IN STAY PETITION NO. 96/AHD/2 0, ITA NO. 698/AHD/2019) A.Y. 2010-11 PAGE NO BHAGWAN MAHAVIR EDUCATION FOUNDATION VS. DCIT (EXEM PT) 2 2. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MAT ERIAL ON RECORD. VIDE THE ORDER OF ITAT STAY PETITION NO. 96/AHD/2020, THE ST AY APPLICATION AGAINST RECOVERY OF DEMAND OF THE ASSESSEE WAS REJECTED AND EARLY HARING WAS GRANTED AFTER CONSIDERING ALL THE MATERIAL ON RECORD. RELE VANT PART OF THE ORDER ON THE STAY APPLICATION OF THE ASSESSEE ADJUDICATED ON 13 TH MARCH, 2020 IS AS UNDER:- 2. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE CASE OF THE ASSESSEE WAS RE-OPENED ON THE BASIS OF INFORMATION RECEIVED FROM THE DIRECTORATE OF INVESTIGATION, NEW DELHI THAT THE ASSESSEE TRUST HAS PURPORTEDLY TAKEN CERTAIN ACCOMMODATION ENTRIES CONTROLLED BY SHRI ANAND KUMAR JAIN AND SHRI NARESH KUMAR JAIN (J AIN BROTHERS) WHO ARE IN THE BUSINESS OF PROVIDING ACCOMMODATION ENTRIES. AS PER THE INFORMA TION, THE | F ; K_3 ASSESSEE TRUST WAS ONE OF THE BENEFICIARIES OF SHELL COMPANIES/ CONCERNS OF J AIN BROTHERS. IT IS STATED THAT ASSESSEE HAS TAKEN ACCOMMODATION ENTRIES OF RS. 1,57,00,055/- FROM SHE LL COMPANIES/CONCERNS OF JAIN BROTHERS DURING THE PERIOD OF ASSESSMENT YEAR 2010-11 RELEVA NT TO F.Y. 2009-10. THE ASSESSING OFFICER HAS MADE ADDITION OF RS. 2.40 CRORES U/S. 68 OF THE ACT HOLDING THAT UNSECURED LOAN AMOUNTING TO RS. 2.4 CRORES CREDITED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE WAS RECEIVED AS ACCOMMODATION ENTRY FROM THE BOGUS CONCERNED RUN BY THE JAIN BROTHERS T O CONVERT THE BLACK MONEY OF THE TRUST INTO WHITE. THE ID. CIT(A) HAS SUSTAINED THE ADDITION MA DE BY THE ASSESSING OFFICER VIDE ORDER 8 TH APRIL, 2019 HOLDING THAT THE CREDITWORTHINESS AND GENUINEN ESS OF THE MONEY PROVIDERS HAS NOT BEEN PROVED AFTER CONSIDERING THE SUBMISSION AND THE MAT ERIAL ON RECORD. THE ASSESSEE HAS MAINLY POINTED OUT IN THE STAY APPLICATION THAT RE-ASSESSM ENT PROCEEDINGS INITIATED AGAINST THE ASSESSEE TRUST WAS NOT VALID. THE ASSESSEE HAS ONLY PAID AN AMOUNT OF 20,53,570/- OUT OF THE TOTAL DEMAND RAISED OF RS. 1,41,22,020/- AND CITED THE FINANCIAL HARDSHIP IN PAYING THE REMAINING OUTSTANDING DEMAND. AFTER CONSIDERING THE ARGUMENTS ADVANCED ON BEHALF OF THE ASSESSEE TRUST AND MATERIAL ON RECORD, WE OBSERVED THAT THE ID. CIT(A) EXAMINED TH E ISSUE OF RE-OPENING OF ASSESSMENT IN DEPTH THEREFORE AT THIS MOMENT IN OUR CONSIDERED OPINION NO CASE IS MADE OUT BY THE ID. COUNSEL THAT THERE IS A STRONG PRIMA FACIE CASE IN FAVOUR OF ASS ESSEE EITHER ON TECHNICAL GROUNDS OR ON THE MERIT OF THE ADDITION MADE BY THE ASSESSING OFFICER. AS R EGARDING FINANCIAL HARDSHIP THE ASSESSEE COMPANY HAD NOT FILED ANY EVIDENCE DEMONSTRATING FI NANCIAL HARDSHIP BEFORE US. THEREFORE, THE STAY APPLICATION OF THE ASSESSEE IS REJECTED, HOWEV ER, EARLY HEARING IS ALLOWED KEEPING IN VIEW THE CONTENTION OF THE ASSESSEE THAT PAYING SUCH HUGE DE MAND WOULD HAMPER CHARITABLE WORK OF THE ASSESSEE. THEREFORE, THE REGISTRY IS DIRECTED TO LI ST THIS CASE FOR EARLY HEARING ON 9 TH APRIL, 2020. AFTER GOING THROUGH THE ABOVE ORDER OF THE ITAT AND THE MISCELLANEOUS APPLICATION OF THE ASSESSEE AND CONSIDERING THE CON TENTION OF BOTH THE SIDES, WE OBSERVE THAT IT IS PERTINENT TO MENTION THAT THE PO WER OF RECTIFICATION U/S. 254(2) OF THE ACT CAN BE EXERCISED ONLY WHEN THE MISTAKE WHI CH IS SOUGHT TO BE RECTIFIED IS A OBVIOUS PATENT MISTAKE, WHICH IS APPARENT FROM TH E RECORD AND NOT A MISTAKE WHICH IS REQUIRED TO BE ESTABLISHED BY ARGUMENT AND LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE DO NOT FIND A NY MERIT IN THE MISCELLANEOUS APPLICATION OF THE ASSESSEE. THEREFORE, THE SAME I S DISMISSED. HOWEVER, EARLY M.A NO. 110/AHD/2020 (IN STAY PETITION NO. 96/AHD/2 0, ITA NO. 698/AHD/2019) A.Y. 2010-11 PAGE NO BHAGWAN MAHAVIR EDUCATION FOUNDATION VS. DCIT (EXEM PT) 3 HEARING IS ALLOWED KEEPING IN VIEW THAT ASSESSEE WA S ENGAGED IN THE EDUCATIONAL ACTIVITIES. THEREFORE, THE REGISTRY IS DIRECTED TO LIST THE CASE FOR EARLY HEARING ON 23 RD SEP, 2020. 3. IN THE RESULT, THE M.A. OF THE ASSESSEE IS DISMI SSED SUBJECT TO THE EARLY HEARING OF THE CASE AS MENTIONED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 11-09-2020 SD/- SD/- (MAHAVIR PRASAD) (AMARJIT SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 11/09/2020 / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,