LATE SHRI AMITABH A. PAREKH (THROUGH L/R. JULIE A. PAREKH),MUMBAI vs. ASST CIT CEN CIR 3(2), MUMBAI

ITA. Nos.3590 to 3592/Mum/2017 for AY 2003-4 to AY 2005-06; and ITA. No.3589/Mum/2017 for AY. 2006-07 and ITA. No.597/Mum/2021 for AY. 2007-08

These appeals have been preferred by the assessee against the order of the Ld. CIT(A) all dated 24.02.2017 confirming the penalty levied by the AO u/s 271(1)(c) of the Act in relation to the addition/disallowances made in the assessment orders passed u/s 153A/143(3) of the Act for AYs 2003-04 to 2007-08. A.Ys. 2003-04 to 07-08 Amitabh A. Parekh 4. We first take up the appeals relating to the quantum additions in to 2949/Mum/2014 and ITA. No.2945/Mum/2014 for AYs 2003-04 to 2007-08. At the time of hearing, the Ld. AR submitted that the assessee does not wish to press Ground Nos. 1 & 2 taken in AY 2007-08 in relation to addition of Rs.10,84,030/- u/s 69C of the Act and therefore the same stands dismissed. Similarly, he submitted that the assessee does not wish to press the Ground Nos. 3 & 4 relating to disallowance u/s 14A of the Act and therefore these grounds are also dismissed. Overall therefore, the appeal for AY 2007-08 in ITA No.2945/Mum/2014 stands dismissed.

The Ld. AR further submitted that the assessee is also not pressing the grounds relating to disallowance u/s 14A of the Act for AYs 2004-05, 2005-06 & 2007-08 and therefore these grounds taken by the assessee in the respective appeals stand dismissed.

The Ld. AR further submitted that assesse is also not pressing ground no. 6 & 7 takes for AY. 2004-05 relating to addition of Rs.33 Lakhs for acquiring car parking and therefore the same stands dismissed.

It was accordingly brought to our notice that the assessee only intends to pursue the grounds relating to the addition/s made by the AO by way of net cash received with reference to seized document ID marked Pages 38 to 41 of Annexure – 1 across AY 2003-04 [Rs.1,52,92,500/-], AY 2004-05 [Rs.65,05,000/-], AY 2005-06 A.Ys. 2003-04 to 07-08 Amitabh A. Parekh [Rs.5,26,50,000/-] and AY 2006-07 [Rs.5,00,000/-], which has since been confirmed by the Ld. CIT(A). It is accordingly noted that except for variation in figures, the common issue permeating in all the four (4) assessment years is the same. Hence, with the consent of both the parties, AY 2005-06 is taken as the lead case as substantial addition was made in that year, result of which shall apply mutatis mutandis to the other AYs 2003-04, 2004-05 & 2006-07.

Brief facts are that the assessee late Shri Amitabh A. Parekh (expired on 06.01.2013) was the Managing Director of M/s. Parekh Aluminex Ltd. (hereinafter “M/s. Parekh”) and also the owner of the proprietary concern under the name and style of ‘M/s. AAP Export’. There was search and seizure action u/s 132 of the Act on the Parekh Group of cases on 14.03.2007. For the relevant AY 2005-06, the original return of income was filed on 06.03.2006 declaring an income of Rs.35,16,551/-. Pursuant to the search, the AO issued notice u/s 153A of the Act, to which assessee reiterated the income originally returned by him. The AO noted that, during the course of search u/s 132 of the Act, documents marked as Annexure A-1 (page no. 38 to 41 which was the cash ledger account of Shri Pujeet Bhai for the period of 16.05.2002 to 20.04.2005 which was seized from the office premises of the late assessee i.e. M/s. Parekh Ltd (G-11, 8th Floor, Everest Building, Tardeo Road, Mumbai). The AO confronted the assessee with this document and asked him to furnish his explanation in respect of page no. 38 to 41 of Annexure A-1, which has been extensively reproduced by the AO at para no. 3.1 of his assessment order. The AO A.Ys. 2003-04 to 07-08 Amitabh A. Parekh further noted in his order that prior to the search conducted at assessee’s premises, there was a search conducted on the Orbit Group on 22.11.2006 and the key person of this group was Shri Pujit Bhai. According to the AO, during the search of Orbit Group, they discovered certain documents relating to the financial transaction between the Orbit Group/its director Shri Pujeet Agarwal and assessee, which was marked as Annexure-A-2. According to the AO, the transactions of Annexure-A-2 seized from “The View” [which is office of the Orbit Group] has been summarized at page no. 112 of that Annexure wherein cash amount of Rs.7,84,45,100/- has been mentioned therein. The details of this cash account, according to the AO, was set out at Page no. 62 and 63 of the said document- Annexure A-2. According to the AO, comparison of the contents of pages 38 to 41 of Annexure A-1 seized from the office of M/s. Parekh Ltd (that of assessee) and pages 62 to 63 of Annexure A-2 seized from Orbit Group revealed that most of the entries match in terms of date and the amount mentioned against those dates. The AO noted that the Orbit Group had owned up the entries found in these pages as its undisclosed income and had accordingly declared sum of Rs.7,84,45,100/- as their undisclosed income before the Settlement Commission, which was paid to Shri Amitabh Parekh.

In light of the above, the AO is noted to have summoned Shri Pujeet Agarwal (director of M/s Orbit Group) and his statement on oath u/s 131 of the Act was recorded. The relevant portion of the A.Ys. 2003-04 to 07-08 Amitabh A. Parekh statement has been reproduced by the AO from page nos. 6 to 9 which is as under: - “Q.7. Who has prepared the statement in this Annexure running to pages 157 and for what purpose these statements were made. Ans. To the best of my belief, these set of papers reflecting web of financial transactions between Orbit group and Parekh group and were made by the office of the Amitabh Parekh and sent to my office for reconciliation. Q.8. In your submission before the Settlement Commission you have claimed to have paid Rs.7,84,45,100/- to Amitabh Parekh as per the cash amount given on pg. no.112 of the said annexure. Please confirm whether you have paid cash to Amitabh Parekh. Ans. I do remember paying cash to Amitabh Parekh but I do not remember the exact amount. However, as per the declaration given in the Settlement Commission the cash mentioned has been paid to Amitabh Parekh. Q.9. Why have you paid cash to Mr.Amitabh Parekh ? Ans. For arranging various funds through banks, institutions and other sources (L/C and others) I have paid the cash to Mr. Amitabh Parekh as it was told to me that some cash was required for arranging these funds.

The above statement of Shri Pujeet Agarwal was confronted to the assessee as well and his statement was recorded u/s 131 of the Act, which statement as extracted in the assessment order, is set out below :- A.Ys. 2003-04 to 07-08 Amitabh A. Parekh Q.5. I am showing you page no. 38 to 41 of the annexure-AI seized during the course of’ search u/s 132(1) on 14.3.2007 at the office of Parekh Aluminex Ltd, G-11, 8" floor, Everest Building, Tardev road, Mumbai. Please explain the contents of the pages. Ans. I say that these papers were received from Mr. Pujit’s office who was my friend and with whom I had some financial dealings. The contents of the papers are not known to me whereby some receipts and payment in cash is shown. On verification at my end no cash has been received or paid. Q.6. Then why is there a mention of cash receipt and cash payment in these pages? Ans. I say that since the papers were received from Mr. Pujit Aggarwal’s office I do not know why the said entries are mentioned. Q.7. But when you were not at all aware of the entries then why did you accept these papers which you claim to have been sent to you by Mr. Pujit Aggarwal? Ans. I say that I sit on the 9th floor and all the staff including the accounts staff sit on the 8th floor. All the papers, couriers, letters etc. are received on the 8th floor by the peon of the office and later they are given to the various concerned persons. Hence, there was no question of me receiving the said papers Q.8. Do you have any proof that these papers were received from Mr. Pujit Agarwal’s office? Ans. I say that I do not have any written proof but circumstantial evidence shows that the search at Mr. Pujit Aggarwal and group companies was carried on before search in our case and I was A.Ys. 2003-04 to 07-08 Amitabh A. Parekh aware of the nature of the documents that were seized from his premises and if the documents were not received from him would have not kept the said papers in the office. Since these were irrelevant papers attention was not paid to it and they were lying in my office. Q.9. In question no. 5 you have said that you had some financial transactions with Mr. Pujit Aggarwal. Please elaborate. Ans. I say Mr. Pujit Aggarwal and myself had studied together and we were friends. I used to help him in raising and giving loans to him out of emotional friendship relation. 1 also have purchased some flats in his buildings. The details of the all the transactions held with him and his group companies have been submitted to your goodself. I say that I have helped him in getting the loans from IOB and PNB and organized on my goodwill letter of credit from Chetak trading. Q.10. What was the consideration received by you for rising finances for Mr. Pujit Aggarwal’? Ans. Nil. I raised the finance out of my old friendship. Q.

11. I am you showing annexureA-2 (running from 1 to 157) seized from the premises of Orbit group. Please go through it and tell who has prepared these? Ans. 1 say that I have given explanation of all the 157 pages vide my letter dated 27.10.2009 received by your goodself. I say I have not prepared the same. Q.12. I am showing you the statement of Shri Pujit Aggarwal recorded u/s 131 on 27.11.2009. in the said statement he has stated that the annexure-A2 was made by your office and were sent to him for reconciliation. What do you have to say? A.Ys. 2003-04 to 07-08 Amitabh A. Parekh Ans. I say that kindly refer to my answer against your question no. 10 wherein I reconfirm that I have not prepared the said annexure. Q.13. I am showing you page no. 112 of the annexure seized from the office of Orbit group during the course of search in their case. On this page there is written cash account Rs. 7,84,45,100/-. The details of this cash account is given on page no.62, 63 and 64 of the said annexure. Mr. Pujit Aggarwal has said in his statement that the entries on page no. 112 read with the entries on page no. 62, 63 and 64 of the said annexure are cash payments made by him to you, Please go through the statement of Mr. Pujit Aggarwal and the above pages and give your comments. Ans. I say that I have already given explanation of the above pages vide my letter dated 27.10.2009, I further say that since the documents were seized from Mr. Pujit Aggarwal’s office. I will not be able to give exact details of the same. Nonetheless all the transactions done with Mr. Pujit Agarwal and his group companies details have been furnished to your goodself. I say that I have not received any cash from Mr. Pujit Agarwal. Q.14. Many entries in the pages 38 to 41 seized from your office are matching with the entries on pages 62 and 63 seized from the office of the Orbit group. In respect of the entries of pages of 62 and 63 Mr. Pujit Aggarwal has stated in his statement u/s 131 that they reflect cash Payments made by him to you. Since pages 38 to 41 were seized from your office why its contents should not be presumed to be true u/s 132(4A) of the Act and receipts are taken as cash received by you and payments are taken as cash paid by you? A.Ys. 2003-04 to 07-08 Amitabh A. Parekh Ans. I say that I have said earlier that the pages 38 to 41 were prepared by Mr. Pujit Aggarwal's office and were sent to my office. Further the annexure seized from his office were also made by him. So obviously the entry shall match. Once again I say that the annexure sent were received by my office peon and were given to concerned person for his perusal. As regards Mr. Pujit Aggarwal statement is concerned; that is his outlook. I have not received any cash from him.”

In the light of the above statements, the AO is noted to have analyzed the documents seized from the premises of both Shri Pujeet Agarwal [director of M/s Orbit Group] as well as the assessee and recorded the following findings for making the impugned addition, which is as under: - “3.7. I have analyzed the seized records from the premises of both the above persons and also their sworn statements. From the analysis it emerges that both Mr. Amitabh Mr. Pujit Agarwal agree that there were a series of financial transactions between them and their group concerns Mr.Amitabh Parekh has stated in his statement u/s 131 that Mr. Pujit Agarwal and himself have studied together and they were friends. He used to help him in getting loans and letter of credits from banks. Both Mr.Amitabh and Mr.Pujit agree that Mr.Amitabh used to help Mr.Pujit in getting loans/funds required for the business of Mr.Pujit. On the basis of Annexure A-2 seized from the office of the Orbit group, Mr. Pujit Agarwal has declared Rs.7,84,45,100/- as his additional income on account of cash payments made to Shri.Amitabh Parekh. He has stated in his statement u/s.131 that he has made these cash payments because he was told by Mr. A.Ys. 2003-04 to 07-08 Amitabh A. Parekh Amitabh Parekh that some cash was required for arranging funds. Many entries in the pages 38 to 41 of Annexure A-1 seized from the office of assessee matches with the entries on pages 62 and 63 seized from the office of the Orbit group. Thus, there is no doubt that there were cash transactions between Mr. Amitabh and Mr.Pujit and the said papers reflect the same. It is also a fact that Mr. Amitabh used to arrange funds for Mr.Pujit. Under these facts and circumstances, the contents of pages 38 to 41 of Annexure A-1 seized from the office of the assessee is presumed to be true w/s.132(4A) of the Act and receipts are taken as cash receipts by the assessee and payments are taken as cash paid by the assessee. 3.8. On the basis of pages 38 to 41 of the said Annexure A-1, during the year under consideration, the assessee has received Rs.5,57,00,000/- and has made the payment of Rs.30,50,000/-. Therefore, on the basis of the above facts and circumstances and the detailed analysis, Rs.5,26,50,000/- being the net amount of cash received by the assessee is added to his total income as his undisclosed income. Penalty u/s 271(1)(c) r.w.s. 274 is initiated for furnishing inaccurate particulars of income.”

Aggrieved, the assessee preferred an appeal before the Ld. CIT(A) who was pleased to confirm the same. Now the assessee is in appeal before us.

Assailing the action of the lower authorities, the Ld. AR appearing for the assessee submitted that the lower authorities had failed to objectively appreciate the explanation put forth by the assessee based on the surrounding circumstances and the materials/ A.Ys. 2003-04 to 07-08 Amitabh A. Parekh statements available on record. The Ld. AR argued that the case made out by the lower authorities that these pages belonged to the assessee and that the cash notings on these pages denoted his cash receipts was factually untenable. The Ld. AR first took us through the answers given by the assessee to Q Nos. 6 & 7 that, the Pages 38 to 41 of Annexure –A1 was prepared by the office of Mr. Pujeet Agarwal, and that it was the Orbit Group which had sent these papers to the office of the assessee, and thus the document belonged to the Orbit Group. The Ld. AR pointed out that this fact was also taken note of by the AO at Para 3.2 of the assessment order wherein the AO had observed that similar document containing the same notings was found in the course of search conducted at Orbit Group, which had ultimately also owned up the transactions found mentioned on these documents before the Settlement Commission and had accordingly offered and paid tax on the aggregate sum of Rs.7,84,45,100/- by way of their undisclosed income. The Ld. AR thus contended that this same amount could not be again inferred as undisclosed income of the assessee. The Ld. AR further submitted that even the contents of these pages did not suggest that the notings therein pertained to the assessee. In this regard, he first took us through the contents of Pages 38 to 41 of Annexure –A-1 and particularly pointed out that the title of the document read ‘Cash Ledger of Shri Pujeet Bhai’. Going by the contents/title of this document, he urged that the only presumption which can be drawn is that this ledger belongs to or pertains to Shri Pujeet Agarwal, a fact which has been accepted by the latter as well before the Settlement Commission. Taking us through the notings in this ledger, he showed A.Ys. 2003-04 to 07-08 Amitabh A. Parekh us that, Shri Pujeet Agarwal (Orbit Group) had made notings of the cash receipts and payments in this ledger. Against the cash payments, specific abbreviations of the names of persons were mentioned and the Ld. AR pointed out that, the abbreviated name of the assessee/Amitabh A. Parekh viz. ‘AAP’ was mentioned only against two cash payments i.e. noting on 28.06.2002 – ‘Cash given AAP’ – Rs.7,50,000 and 13.08.2002 – ‘As per AAP’ – Rs.11,500. He showed us that, apart from the name of the assessee, other names such as ‘Deven’ or ‘Chandrakant’ was also mentioned, which corroborates the assessee’s version that the notings in this cash ledger was made by and thus pertained to Shri Pujeet Agarwal and/or Orbit Group. According to Ld. AR therefore, at the most only the two notings found mentioned against the name of the assessee could be viewed adversely in his hands and that the lower authorities had grossly erred in adding all the cash notings as unexplained income of the assessee.

The Ld. AR further submitted that, the lower authorities were also unable to explain the rationale as to why Shri Pujeet Agarwal would pay such huge sums of monies to the assessee. In this regard, the Ld. AR further invited our attention to the answer given by Shri Pujeet Agarwal to Q No. 9 (supra) wherein he had stated that the assessee was only assisting him in arranging funds through bank, institutions and other sources and that cash was required to be paid for arranging these funds. The Ld. AR pointed out that, it was never the statement of Mr. Pujeet Agarwal that the payments were made to the assessee on his own proprietary account, but it suggested that the A.Ys. 2003-04 to 07-08 Amitabh A. Parekh payments were being made through the assessee who was acting as a broker for raising funds for Orbit Group. The Ld. AR invited our attention to the answer given by the assessee in Q No. 9 to show that even the assessee had explained his relationship with Mr. Pujeet Agarwal and had affirmed the fact that he was only assisting him in raising finances for him. The Ld. AR thus submitted that neither Shri Pujeet Agarwal nor the assessee ever admitted that the cash was paid to the assessee for his own proprietary account, rather it was being paid by Orbit Group at the instance of the assessee for raising finances for the Orbit Group. This according to Ld. AR was supported by the relevant entries/ledger found at Pages 38 to 41 of Annexure–A-1 which showed that out of the cash which was received by Shri Pujeet Bhai, several payments were made to different persons but the name of the assessee only featured in two entries, which presumably could be inferred as his commission income for arranging the finances. According to him, these notings lent credence to the contention of the assessee that the entries noted therein beneficially belonged to Shri Pujeet Agarwal and the assessee was only the ‘broker’ and not the ‘beneficiary’ of the monies. The Ld. AR thus submitted that the only relationship between the assessee and Orbit Group, as admitted by assessee and Shri Pujit Agarwal, was that the assessee would assist them in raising finances because of the personal relationship which he shared with Shri Pujeet Agarwal. He pointed out that it was not the case of the Revenue that the assessee had assisted the Group in raising finances to the tune of Rs.700 to 800 crores which would justify cash payment to the assessee by way of commission income of Rs.8 crores A.Ys. 2003-04 to 07-08 Amitabh A. Parekh approx. According to Ld. AR therefore, the statement of the assessee and Mr. Pujit Agarwal considered in light of the contents of the seized documents and surrounding circumstances clearly negated the stand taken by the lower authorities. The Ld. AR thus claimed that the impugned addition/s made in the hands of the assessee was unjustified and deserves to be deleted.

Per contra, the Ld. DR appearing on behalf of the Revenue, in principle supported the findings recorded by both the lower authorities and contended that the Annexure-A-1 has been found from the premises of the assessee and which showed that for AY. 2005-06 assessee has received Rs.5,57,00,000/- and has made the payment of Rs.30,50,000/-. Therefore, the assessee has received net amount of rupees in cash to the tune of Rs.5,26,50,000/- which has been rightly added by the AO. According to the Ld. DR, the fact that Shri Pujeet Agarwal, Director of Orbit Group has declared Rs.7,84,45,100/- as additional income on account of transactions with assessee would not in any way effect the taxability of the income in the hands of the assessee. For such a preposition he cited the decision of the Hon’ble Delhi High Court in the case of Gupta Perfumers Pvt. Ltd. (22 taxmann.com 164). According to the Ld. DR, since Annexure-A1 has been found at the premises of the assesse, therefore, presumption has to be drawn against the assessee in respect of transaction mentioned therein and cited the decision of the Hon’ble Delhi High Court in the case of Naresh Kumar Aggarwal (198 Taxman 194). Thus, according to the Ld. DR, the submission of the Ld. AR of the assessee is devoid A.Ys. 2003-04 to 07-08 Amitabh A. Parekh of merits. And therefore, we should not interfere in the impugned order of the Ld. CIT(A).

We have heard both the parties, perused the orders of the lower authorities and the material placed before us. From the facts placed before us, it is gathered that a search was conducted u/s 132 of the Act on the Orbit Group on 22.11.2006 and certain documents were found and seized which inter alia included Page No. 112 of Annexure–2 which contained the details of transactions conducted between the Orbit Group and the assessee involving sale of flats, loans facilitated from banks, amount payable towards car spaces, stamp duty etc. aggregating to Rs.6,68,67,533/-. It is noted that, none of these notings were alleged to denote transactions conducted outside the books of accounts with the assessee. This document however revealed that the assessee had purchased certain flats from Orbit Group and also arranged finances for them. In the same Annexure -2, Pages 62 to 63 contained date wise details of payments and receipts which aggregated to Rs.7,84,45,100/-. It is noted that these Pages did not contain any title or name. The only notings were dates, payments, receipts (both cheque and otherwise). For the sake of clarity, the relevant image of these documents are extracted below :- A.Ys. 2003-04 to 07-08 Amitabh A. Parekh A.Ys. 2003-04 to 07-08 Amitabh A. Parekh

The above document did not bear or contain the name of the assessee. Further, it is noted that Shri Pujit Agarwal, Director of Orbit Group in his statement had admitted that the notings found in this document were not recorded in his books and it inter alia denoted cash payments made by them to the assessee. It is relevant to mention at this juncture that, it is an uncontroverted factual position that the above notings were later on owned up by Orbit Group as belonging to them and the same was offered by them to tax as their undisclosed income before the Settlement Commission. In the meanwhile, however, A.Ys. 2003-04 to 07-08 Amitabh A. Parekh another search operation was also conducted upon the assessee who was found to have financial transactions with Orbit Group on 14.03.2007. In the course of search, Page Nos. 38 to 41 of the document titled Annexure A-1 was found from the premises of the company, M/s Parekh Ltd in which the assessee was Managing Director. It is noted that this document has been extracted by the AO at Page 2 to 4 of the assessment order, which is again reproduced hereunder, for the sake of convenience :- A.Ys. 2003-04 to 07-08 Amitabh A. Parekh A.Ys. 2003-04 to 07-08 Amitabh A. Parekh 25.01.2002 Cash 2400000 A.Ys. 2003-04 to 07-08 Amitabh A. Parekh

Before adverting to the contents of the above seized document, let us first look at the relevant provisions of the Act regarding the admissibility and presumption raised in relation to such seized document. Section 292C of the Act provides that, where any books of accounts, other documents, money, bullion, jewellery or other valuable article or thing, are or is, found in possession or control of any person, in the course of search conducted under Sec. 132 of the Act, it may, in any proceeding under this Act, be presumed, viz. (i) that, such books of account, other documents, money, bullion, jewellery, or other valuable article or thing belong or belongs to such person; (ii) that, the contents of such books of account and other documents are true; and (iii) that, the signature and every other part of such books of account and other documents which purport to be in the handwriting of any particular person or which may reasonably be assumed to have been signed by, or to be in handwriting of, any particular person, are in that A.Ys. 2003-04 to 07-08 Amitabh A. Parekh person’s handwriting, and in the case of a document stamped, executed or attested, that it was duly stamped and executed or attested by the person by whom it purports to have been so executed or attested. Also, a similar presumption can be traced in sub-section (4A) of Sec. 132 of the Act. This presumption is however only against the person from whose possession the same is found. The said presumption in Section 292C/132(4A) of the Act, however, has not been extended to any other person (who has not been searched from whose possession documents was found) say, whose name or details are found to be contained in such books of accounts, document etc. or where the person searched claims that such books of accounts or other documents person relates to or belongs to some other person. Section 132(4A) of the Act, permits/enables the income tax authority to raise a rebuttable presumption that such books of account, money, bullions etc, belonged to such persons; that the contents of such books of account and other documents are true and that the signature and every other part of such books and other documents are signed by such person or in the hand- writing of that particulars person the books of accounts or other documents found from the possession of a searched person.

In the case before us, the document viz., Pages 38 to 41 of Annexure–A1 has been found during search on 14.03.2007 from the premise of assessee’s office wherein he was the managing director of M/s. Parekh Alummenex Ltd. (M/s. Parekh). But Annexure-A1 bore the title, ‘Cash Ledger of Shri Pujeet Bhai’ and not that of assesse. Moreover, as rightly noted by the AO, the dates and amounts A.Ys. 2003-04 to 07-08 Amitabh A. Parekh mentioned in this ledger tallied with Pages Nos. 62 & 63 of document Annexure -2 found from the premises of Orbit Group (which was searched four months before assesse was searched). As noted (supra) the title of this document read ‘Cash Ledger of Shri Pujeet Bhai’ and therefore even though the document is found in assessee’s premises and the presumption is raised against the assesse, but since the title of the document Annexure A-I says on the face of itself that it is the ledger of Shri Pujeet, we infer that the notings therein pertains to him for the reasons discussed (infra). We draw our inference from the contents found in Pages Nos. 62 & 63 of document Annexure-2 found and seized on earlier occasion i.e. 22.11.2006 from the premises of Orbit Group, whose key person is Shri Pujeet Agarwal, and more particularly the fact that the amounts mentioned in this ledger has already been owned up before Settlement Commission and offered as their undisclosed income by Orbit Group. It is noted that this particular factual aspect is also discernible from the assessment order as well, wherein the AO has observed as under :- “3.7. On the basis of Annexure A-2 seized from the office of the Orbit group, Mr. Pujit Agarwal has declared Rs.7,84,45,100/- as his additional income on account of cash payments made to Shri.Amitabh Parekh. He has stated in his statement u/s.131 that he has made these cash payments because he was told by Mr. Amitabh Parekh that some cash was required for arranging funds. Many entries in the pages 38 to 41 of Annexure A-1 seized from the office of assessee matches with the entries on pages 62 and 63 seized from the office of the Orbit group…” A.Ys. 2003-04 to 07-08 Amitabh A. Parekh 20. Further our aforesaid presumption is found to be supported by the manner in which the document viz., Pages Nos. 38 to 41 of Annexure A-1 has been prepared. The notings therein suggests that it is the ledger of cash received by Shri Pujeet Agarwal and the payments made by him. Against several cash payments, the ledger mentions name/abbreviations of the persons i.e. ‘Deven’. ‘Chandrakant’ & ‘AAP’. In this factual context, according to us only the notings found against the name/abbreviation ‘AAP’ denotes the payments to the assessee i.e. Shri Amitabh A. Parekh. The reasons for holding such a presumption is because had this document been prepared by the assessee, the title would not have stated “Ledger of Shri Pujeet Bhai” nor would the assessee mention the fact of cash payment to himself by using abbreviation of “AAP” instead would have used “cash/self”. For the reasons as discussed in the foregoing, we hold that the lower authorities grossly erred on the given facts and in law that the contents of the above document viz., Pages Nos. 38 to 41 of Annexure A-1 belonged to the assessee and the entries therein denoted monies for the assessee.

The Ld. AR has also rightly pointed out to us that, nowhere did Shri Pujeet Agarwal in his statement recorded u/s 131 of the Act had stated that the cash payments made to the assessee was towards any commission/incentive or repayment of any loan advanced by him. Instead, he had only stated that cash payments were made at the instance of the assessee for arranging funds for the Group. This answer given by him doesn’t say whether the assessee was the ultimate A.Ys. 2003-04 to 07-08 Amitabh A. Parekh beneficiary of this money or that the assessee was making payments on his behalf for someone else. Considering his answers to the queries, as discussed (infra), it appears that the assessee was only the broker/conduit under whose directions cash payments would be made to persons through whom the assessee arranged finances for Mr. Agarwal.

When confronted with the above statement of Mr. Agarwal, the assessee had also explained his relationship with him that, he was only the broker/intermediary who assisted him in raising finances for his group. The assessee had also explained the manner in which he came into contact with Shri Pujeet Agarwal. The relevant Questions put to the assessee and the answers given by him u/s 131 of the Act is noted to be as follows:- “Q.9. In question no. 5 you have said that you had some financial transactions with Mr. Pujit Aggarwal. Please elaborate. Ans. I say Mr. Pujit Aggarwal and myself had studied together and we were friends. I used to help him in raising and giving loans to him out of emotional friendship relation. 1 also have purchased some flats in his buildings. The details of the all the transactions held with him and his group companies have been submitted to your goodself. I say that I have helped him in getting the loans from IOB and PNB and organized on my goodwill letter of credit from Chetak trading.”

The AO in all fairness has reproduced the statement of Shri Pujit and assesse in his assessment order, but has not appreciated the A.Ys. 2003-04 to 07-08 Amitabh A. Parekh testimony of Shri Pujit as well as assesse about the transaction between them viz the money was given by Shri Pujit Bhai to persons at the instance of assesse for assisting arranging finance to M/s. Orbit. The authorities below could not have rejected the oral testimony of Shri Pujit and assesse without bringing out the inherent weakness in their explanation or rebut it by putting to the assessee some information or evidence which they have in their possession [refer Hon’ble Supreme Court decision Srilekha Banerjee (49 ITR 112)]. In light of the above, discussion, the position which according to us emerges is that, Shri Pujit Agarwal/Orbit Group had raised several loans/finances from banks/institutions or otherwise (cash) through the aid and assistance of the assessee. Accordingly, Shri Pujit Agarwal/Orbit Group out of their undisclosed income, would make cash payments in relation to the finances obtained through the assessee. And that the assesse was only the facilitator/broker through whom finance were mobilized. Therefore, we are unable to subscribe to the view endorsed by the lower authorities that the entire cash receipts found mentioned in document viz., Pages Nos. 38 to 41 of Annexure A-1 represented income of the assesse.

This particular inference has also been taken note of by the AO at Para 3.7 of his assessment order wherein he had observed that the assessee and Shri Pujit Agarwal were friends and that the assessee would assist him in procuring finances from banks and otherwise. The AO notes that indeed certain cash payments had been made for procuring these finances which were paid by Shri Pujit Agarwal at the A.Ys. 2003-04 to 07-08 Amitabh A. Parekh instance of the assessee. These findings of the AO clearly shows that even he was of the view that the assessee was only a facilitator/broker of loans and not the beneficiary of the payments made by the Orbit Group for raising these loans. The relevant observations of the AO are once again set out below :- “3.7. …. Mr. Amitabh Parekh has stated in his statement u/s 131 that Mr. Pujit Agarwal and himself have studied together and they were friends. He used to help him in getting loans and letter of credits from banks. Both Mr.Amitabh and Mr.Pujit agree that Mr.Amitabh used to help Mr.Pujit in getting loans/funds required for the business of Mr.Pujit. On the basis of Annexure A-2 seized from the office of the Orbit group, Mr. Pujit Agarwal has declared Rs.7,84,45,100/- as his additional income on account of cash payments made to Shri.Amitabh Parekh. He has stated in his statement u/s.131 that he has made these cash payments because he was told by Mr. Amitabh Parekh that some cash was required for arranging funds. Many entries in the pages 38 to 41 of Annexure A-1 seized from the office of assessee matches with the entries on pages 62 and 63 seized from the office of the Orbit group. Thus, there is no doubt that there were cash transactions between Mr. Amitabh and Mr.Pujit and the said papers reflect the same. It is also a fact that Mr. Amitabh used to arrange funds for Mr.Pujit. ….”

In light of the above and if the logic propounded by the Revenue is taken to its logical conclusion, then it would have to be inferred that the assessee had arranged loans for the Orbit Group running in excess of Rs.800 crores to justify payment of such humungous amount of A.Ys. 2003-04 to 07-08 Amitabh A. Parekh commission to him. We however note that no such case has been made out by the Revenue nor does the statement of Shri Pujit Agarwal indicates so. Even as discussed earlier, the contents of document viz., Pages Nos. 38 to 41 of Annexure A-1 also does not appear to suggest that all the cash notings therein pertains to the assessee. Rather the undisputed fact is that the cash notings pertained to Orbit Group which had also offered it as their undisclosed income. The only notings found in the name of the assessee totaled Rs.7,61,500/-. In our considered view therefore, cash ‘receipts’ by the assessee acting as a broker/intermediary for Orbit Group cannot be inferred as his undisclosed ‘income’. We thus do not countenance this action of the lower authorities.

Overall therefore, and for the reasons set out above, we hold that the cash notings as tabulated by the AO at Pages 2-4 of the assessment order pertained to Shri Pujit Agarwal/Orbit Group and the assessee was not the ultimate beneficiary of the said amounts. Instead he was only the broker/intermediary through whom Shri Pujit Agarwal would arrange loans. Accordingly, the action of the lower authorities in treating these cash transactions as belonging to the assessee is held to be unjustified. Coming to the case law cited by Ld DR of Hon’ble Delhi High Court in the case of Gupta Perfumers (supra), wherein their Lordship has held that seized papers on the basis of which an assessee disclosed his undisclosed income before Settlement Commission, can be used and utilized by revenue against a third person, it is noted that the Hon’le High Court also observed that the third person can contest A.Ys. 2003-04 to 07-08 Amitabh A. Parekh the charge and explain that the said seized paper does not disclose any “undisclosed income” in his hand. And in this appellant case, the seized paper from assessee (i.e, Annexure-A-1) as well as A-2 discovered from premises of Shri Pujit Bhai on the basis of which Shri Pujit offered Rs.7.84 crs, has been explained by assesse as discussed supra, which according to us, rebuts the presumption as per section 132(4A) and section 292C of the Act. Therefore, the reliance of Ld. DR on decision of Hon’ble Delhi High Court in Gupta perfumers (supra) and Naresh Kumar (supra) are distinguishable on facts and not applicable.

At the same time, however, it is noted that the name of assessee does feature by way of abbreviation ‘AAP’ in the document viz., Pages Nos. 38 to 41 of Annexure A-1. Going by the statements of Shri Pujit Agarwal and the assessee as well, the assessee acted as a finance broker for the Orbit Group and therefore in our considered view the notings aggregating to Rs.7,61,500/- found against his name represented the commission which would have been received by him in lieu of arranging these finances. The Ld. AR has conceded before us that, the same may accordingly be computed and assessed as unexplained commission income in the hands of the assessee qua the finances facilitated by him for Orbit Group. Having regard to the dates found mentioned in the ledger, addition to the extent of Rs.7,61,500/- is retained in AY 2003-04 and all other addition/s by way of undisclosed cash receipts made across AYs 2003-04 to 2006-07 is hereby directed to be deleted. A.Ys. 2003-04 to 07-08 Amitabh A. Parekh

We now take up the penalty appeals in to 3592/Mum/2017 and 3589/Mum/2017 and 597/Mum/2021 for AYs 2003-04 to 2007-08. At the outset, the Ld. AR brought to our notice that the penalty levied by the AO u/s 271(1)(c) of the Act is bad in law since the penalty notice issued by him intimating his desire to levy penalty is bad in law. The Ld. AR, drew our attention to the penalty notice [a copy of which have been placed along with respective quantum assessment orders] wherein we note that the penalty notice has been issued for all the captioned assessment years on 30.12.2009 wherein the AO has not specified the fault/charge for which the assessee has been put to notice for levy of penalty. Meaning, the show cause notice does not specify for what fault/charge the penalty has been proposed against the assessee i.e. whether penalty was proposed for the lapse/fault of assessee for “concealment of income” or “furnishing inaccurate particulars of such income”. According to him, the AO having not specified the charge against the assessee for levy of penalty, the assesse was in the dark as to what fault he has to defend against the proposed penalty. Therefore, since show cause notices dated 30.12.2009 (for all captioned assessment years) were itself bad in law, the penalty levied are vitiated. For that, Ld. AR relied on the decisions of the Full bench of the Hon’ble Jurisdictional High Court in the case of Mohd. Farhan A. Shaikh Vs. DCIT (2021) 434 ITR 1 (Bombay) dated 11.03.2021 wherein their Lordships in similar factual matrix (invalid notice) held that the show cause notice issued prior to levy of penalty without specifying the fault/charge against which the A.Ys. 2003-04 to 07-08 Amitabh A. Parekh assessee was being proceeded against would vitiate the penalty itself. And the Hon’ble Court upheld the view of the division bench order in the case of PCIT Vs. Goa Dourado Promotions (P.) Ltd. (Tax Appeal No.18 of 2019, dated 26.11.2019) and held that the contrary view taken by an another division bench in the case of CIT Vs. Smt. Kaushalya (1995) 216 ITR 660 (Bom) does not lay down the correct proposition of law. Therefore, the Ld. AR prayed that the penalty levied for all assessment years initiated on the strength of invalid notices dated 30.12.2009 which were bad in law need to be cancelled. Per contra, the Ld. DR after perusal of the notice issued by AO (Shri Manish Kumar Singh) dated 30.12.2009 for all captioned assessment years was unable to controvert the factual aspects brought to our notice. However, according to Ld. DR, the assessee having participated in the penalty proceeding was very well aware of the fault for which AO had levied the penalty against the assessee. So according to him, no prejudice has been caused to assessee on this score and therefore he doesn’t want us to interfere with the order of Ld. CIT(A).

We have heard both the parties and perused the records. We note that the AO had initiated penalty by issuing separate notices u/s 274 r.w.s 271(1)(c) of the Act dated 30.12.2009 for all the captioned assessment years (supra) from which it is discerned that he (AO) has not strike down the in-applicable portion of the notice which would then make it clear as to what fault/charge, the AO intended to proceed against the assesse for levy of penalty i.e. as to whether he is proceeding against the assessee for either “concealment of particulars A.Ys. 2003-04 to 07-08 Amitabh A. Parekh of income” or “furnishing inaccurate particulars of such income”. A perusal of the impugned notices shown that AO has put a tick over the expression given therein i.e. “have concealed the particulars of income” or “furnishing of inaccurate particulars of income” and has not strike down the in-applicable portion of fault/charge. Thus, we find that the assessee was put to notice for both the faults/charge and thereby kept assessee guessing as to what fault/charge the AO proposed to levy penalty u/s 271(1)(c) of the Act. Meaning the AO failed to specify in the impugned notice the specific fault/charge against which the assessee was called upon to explain why the penalty u/s 271(1)(c) of the Act ought not to be levied against him. Thus, we find that the penalty notice issued by the AO u/s 274 r.w.s. 271 of the Act dated 30.12.2009 for AY. 2003-04 to AY. 2007-08 are vague and hence bad in law because the impugned notices did not explicitly convey to the assessee for what fault/charge the assessee was proceeded against for levy of penalty u/s 271(1)(c) of the Act. Having held that the show cause notices issued by AO prior to levy of penalty are defective/invalid and bad in law, the consequent levy of penalty cannot be sustained. For taking such a view, we rely on the decision of the Hon’ble Jurisdictional (Full Bench) decision in the case of Mohd. Farhan A. Shaikh (supra) and the decision of Hon’ble Karnataka High Court in the case of CIT vs Manjunatha Cotton and Ginning Factory reported in (2013) 359 ITR 565 (Kar); and also take note that the Department’s SLP against the Hon’ble Karnataka High Court order supra has been dismissed by the Hon’ble Supreme Court. We also find that Hon’ble Karnataka High Court in the case of CIT Vs. SSA’s A.Ys. 2003-04 to 07-08 Amitabh A. Parekh Emerald Meadows, reported in (2016) 73 taxmann.com 241 (Kar) endorsed the same view in Manjunatha Cotton and Ginning Factory (supra) and held as under:- “3. The Tribunal has allowed the appeal filed by the assessee holding the notice issued by the Assessing Officer under section 274 read with Section 271(1)(c) of the Income Tax Act, 1961 (for short ‘the Act’), to be bad in law as it did not specify which limb of Section 271(1)(c) of the Act, the penalty proceedings had been initiated i.e., whether for concealment of particulars of income or furnishing of inaccurate particulars of income. The Tribunal, while allowing the appeal of the assessee, has relied on the decision of the Division Bench of this Court rendered in the case of CIT Vs. Manjunatha Cotton & Ginning Factory (2013) 359 ITR 565/218 Taxman 423/35 taxmann.com 250(Kar).

In our view, since the matter is covered by judgment of the Division Bench of this Court, we are of the opinion, no substantial question of law arises in this appeal for determination by this Court. The appeal is accordingly dismissed.”

Respectfully following the judicial precedents as well as the binding decision of the Full bench decision of the Hon’ble jurisdictional High Court in the case of Mohd. Farhan A. Shaikh (supra), we direct the deletion of the penalty levied in these captioned assessment years (supra).