ITO 27 (2)(5), Mumbai V. SHRI. PARESH MANUSUKHLAL SHAH, Mumbai

MA 45/MUM/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6500 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-07-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2015-2016
• Appeal Filed On: 24-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Accommodation entries; Assessment record; Tax effect; Bogus
• Section: 68; 6; 132; 268A; 13; 20

Judgement Text

MA NO 45/MUM/2020 IN ITA NO. 2107/MUM/2019 ASSESSMENT YEAR: 2015 - 16 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI 'D' BENCH, MUMBAI [CORAM: JUSTICE P.P. BHATT (PRESIDENT), AND PRAMOD KUMAR (VICE PRESIDENT)] MA NO 45/MUM/2020 IN ITA NO. 2107/MUM/2019 ASSESSMENT YEAR: 2015 - 16 INCOME TAX OFFICER 27 (2)(5) .APPLICANT MUMBAI. VS. SHRI PARESH MANUSUKHLAL SHAH RESPONDENT A - 3, NEELKANTH JYOT, 168, 90 FEET ROAD, GHATKOPAR (E), MUMBAI 400077 [PAN: AOSPS8168M] APPEARANCES BY SUN IL KUMAR MISHRA FOR THE APPLICANT MS SHREYA DOSHI FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : JULY 13 , 2021 DATE OF PRONOUNCEMENT OF ORDER : JULY 20 , 2021 ORDER PER BENCH: 1. BY WAY OF THIS MISCELLANEOUS APPLICATION, THE ASSESSING OFFICER SEEKS THE RECALL OF OUR ORDER DATED 21.08.2019 DISMISSING THE APPEAL AN ACCOUNT OF LOW TAX EFFECT UNDER CBDT CIRCULAR 17/2019 DATED 08.08.2019. 2. A SHORT POINT ON WHICH THE ORDER IS SOUGHT TO BE RECALLED IS ASSESSING OFFICER RELIANCE ON CIRCULAR NO. 23/2019 DATED 06.09.2019, AS IS EVIDENT FROM THE FOLLOWING OBSERVATIONS IN THE PRESENT MISCELLANEOUS APPLICATION: - IT IS SEEN FROM THE ASSESSMENT RECORDS THAT A SEARCH WAS CONDUCTED U/S 132 OF I T ACT ON 09/10/2014 AT THE OFFICE OF LOTUS/KAMDHENU/GREEN VALLEY GROUP & THEIR ASSOCIATES AND AT THE RESIDENCE OF THEIR DIRECTORS BY THE DDIT UNIT 3(2) MUMBAI. THE MAIN ALLEGATION IN THIS SEARCH WAS THE INTRODUCTION OF UNACCOUNTED FUNDS INTO BUSINESS AN D MA NO 45/MUM/2020 IN ITA NO. 2107/MUM/2019 ASSESSMENT YEAR: 2015 - 16 PAGE 2 OF 4 PERSONNEL ACCOUNTS. THESE FUNDS WERE ROUTED THROUGH PAPER ENTITIES BASED IN KOLKATA AND MUMBAI CREATED OR EXISTING FOR THIS PURPOSE. IT WAS ALSO NOTICED THAT ACCOMMODATION ENTRIES IN THESE GROUP WERE FROM COMMON ACCOMMODATION ENTRY PROVIDER. IN THE PRES ENT CASE ALSO THE ADDITION U/S 68 OF I T ACT WAS MADE ON ACCOUNT OF UNSECURED LOAN OF RS 1,41,00,000/ - RECEIVED BY THE ASSESSEE FROM BOGUS ENTITIES, WHICH WAS FOUND TO BE A COMPANY FORMED WITH AN MALAFIDE INTENTION TO INTRODUCE THE UNACCOUNTED MONEY BY PROV IDING ACCOMMODATION ENTRIES. THUS THE ABOVE COMPANY IS ENGAGED IN THE ORGANIZED TAX EVASION SCAM BY PROVIDING ACCOMMODATION ENTRIES. THE CBDT VIDE ITS CIRCULAR NO. 23 OF 2019 (F.NO. 279/MISC/M - 93/2018 ITJ(PT.)DATED 06/09/2019 HAS DIRECTED IN SUCH CASES AP PEALS MAY BE FILED BEFORE ITAT, HIGH COURT AND SLP/APPEALS BEFORE THE SUPREME COURT ON MERITS AS AN EXCEPTION TO THE CIRCULAR ISSUED U/S 268A SPECIFYING MONETARY LIMITS. THOUGH THE ABOVE CIRCULAR WAS IN RESPECT OF LTCG AND SHORT TERM CAPITAL LOSS GENERATED THROUGH PENNY STOCK, THE ISSUE OF ORGANIZED TAX EVASION SCAM THROUGH ACCOMMODATION ENTRIES IS INVOLVED IN THIS CASE. THE HONBLE ITAT HAS DISMISSED THE APPEAL PURELY ON LOW TAX EFFECT WITHOUT DISCUSSING THE ISSUE ON MERIT, HENCE IT IS SUGGESTED THAT MIS CELLANEOUS APPLICATION MAY BE FILED IN HONBLE ITAT FOR REINSTITUTION OF APPEAL ON THE GROUND THAT AN ISSUE OF ORGANIZED TAX EVASION SCAM THROUGH ACCOMMODATION ENTRIES IS INVOLVED IN THIS CASE IT IS AN EXCEPTION TO THE CIRCULAR ISSUED U/S. 268A SPECIFYING MONETARY LIMITS. 3. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. 4. WHEN THIS MA CAME UP FOR HEARING, LEARNED COUNSEL POINTED OUT THAT THE ASSESSEE HAS ALREADY SETTLED THE MATTER UNDER VIVAD SE VISHWAS SCHEME 2020. THE RELEVANT DETAILS WERE ALSO FILED. IN THIS VIEW OF THE MATTER, LEARNED DEPARTMENTAL REPRESENTATIVE DID NOT PURSUE THE MISCELLANEOUS APPLICATION. IT WAS, HOWEVER, SUBMITTED THAT IT FOR ANY REASON WHATSOEVER THE SETTLEMENT UNDER VIVAD SE VISHWAS SCHEME 2020 IS NOT FINALIZED, THE ASSESSING OFFICER SHOULD BE AT LIBERTY TO REVIVE THE MATTER. THIS LIBERTY IS GRANTED. 5. IN THE RESULT, THIS MISCELL ANEOUS APPLICATION IS DISMISSED SUBJE CT TO THE OBSERVATIONS ABOVE. PRONOUNCED I N THE OPEN COURT TODAY ON THE 20 TH DAY OF JULY, 2021. SD/ - SD/ - JUSTICE P.P. BHATT PRAMOD KUMAR (PRESIDENT) (VICE PRESIDENT) MUMBAI, DATED THE 20 TH JULY , 2021 MA NO 45/MUM/2020 IN ITA NO. 2107/MUM/2019 ASSESSMENT YEAR: 2015 - 16 PAGE 3 OF 4 COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, MUMBAI MA NO 45/MUM/2020 IN ITA NO. 2107/MUM/2019 ASSESSMENT YEAR: 2015 - 16 PAGE 4 OF 4 SR. NO DESCRIPTION DATE INITIAL 1. DRAFT DICTATED 2 DRAFT PLACED BEFORE AUTHOR ON 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 5 APPROVED DRAFT COMES TO THE SR PS 6 KEPT FOR PRONOUNCEMENT ON 7 FILE SENT TO THE BENCH CLERK 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE ON WHICH FILE GOES TO THE AR 10 DATE OF DISPATCH