RAIYANI BROTHERS,SURAT vs. INCOME TAX OFFICER, WARD 3(3)(4), SURAT

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRIPAWAN SINGH, JM &DR. A.L.SAINI, AM आयकरअपीलसं./ITA No.222-224/SRT/2018 (िनधा�रणवष� / Assessment Years: (2007-08,2008-09 &2013-14) (Virtual Court Hearing) Raiyani Brothers The Income Tax Officer, V 9, Dumaswala Compound, Ward-3(3)(4), Aayakar Bhawan, Majura s. Haribaug, Varachha Road, Gate, Surat. Surat-395006 �थायीलेखासं./जीआइआरसं./PAN/GIR No.: AADFR0702K (Assessee) (Revenue)

Assessee by :Shri P.M.Jagasheth - CA Respondentby :Ms. Anupama Singla, Sr.-DR

सुनवाईकीतारीख/ Date of Hearing : 30/09/2021 घोषणाकीतारीख/Date of Pronouncement : 22/10/2021 आदेश / O R D E R PER DR. A. L. SAINI, ACCOUNTANT MEMBER: Captioned three appeals filed by the assessee pertaining to assessment year(s) 2007-08, 2008-09 and 2013-14, are directed against the separate orders passed by the Learned Commissioner of Income Tax(Appeals)-3 [Ld.CIT(A)], Surat, dated 18.09.2017and 23.01.2018 respectively, which in turn arise out of separate assessment order(s) passed by the Assessing Officer under section 143(3) r.w.s 147 r.w.s. of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) dated 27.03.2015, 07.03.2016 and 28.03.2016 respectively.

2.In appeals for AY 2007-08 & 2008-09, the issues involved in all the appeals are common and identical; therefore, these appeals have been heard together and are being disposed of by this consolidated order. For the sake of convenience, the grounds as well as the facts narrated inITA No.223/SRT/2018 for AY 2008-09, have been taken into consideration for deciding the above appeals en masse.

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3.The appealsfiled by the assessee for Assessment Years 2007-08 and 2008-09, are barred by limitation by 84 days. The assessee has moved a petition requesting the Bench to condone the delay.In this regard assessee has also field affidavit stating therein the reasons that order of Ld. CIT(A) was not received by assessee on time therefore the appeals could not be filed within the stipulated time before the Tribunal. We heard the party on this preliminary issue. Having regard to the reasons given in the petition, we condone the delay and admit the appeals for hearing.

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7.On the other hand, Ms. Anupama Singla, Learned Senior Departmental Representative for the Revenue objected the plea taken by ld Counsel. She pleads that assessee cannot raise additional ground at this stage, as the assessee had not raised such issue before the First Appellate Authority. However, the issue of re- opening was there before the Assessing Officer but assessee did not raise this issue ( Challenging the reopening of assessment under section 147/148) before the ld CIT(A), therefore it would be deemed that assessee has accepted re-opening of assessment under section 147 of the Act. Hence, the additional ground raised by assessee should not be admitted.

8.We have heard both the parties on this preliminary issue.We note that assessee did not raise objections against the reasons recorded u/s 147 of the Act in the course of assessment proceedings. Further, the ground regarding the validity of reassessment under section 147 was not raised before Ld CIT(A) on the contrary same is raised before this Tribunal by way of additional ground. Learned Counsel submits before us that additional ground of appeal may be admitted as it is being purely a legal issue and all facts are already on record. On the other hand, Learned DR for the Revenue pleaded that assessee did not raise this issue during the appellate proceedings, before the ld CIT(A), therefore, at this stage the assessee cannot raise additional ground on legal issue. We note that assessee has raised the addition ground on the legal issue challenging the validity of reassessment proceedings under section 147/148 of the Act and it is purely a legal issue and all facts are already on record which goes to the root of the matter. We also note that no further inquiry is required for deciding the same as all facts are already on record. Therefore, in the light of ratio laid down by the Hon'ble Supreme Court in the case of National Thermal Power Company Ltd., vs.

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CIT (1998) 229 ITR 382 (SC), we admit the additional ground raised by the assessee.

Therefore, as per that search action which was mounted on one Shri Rajendra Jain group of cases in Mumbai, wherein he has admitted that he has floated many concerns as proprietary concerns, firms, and companies in the name of his trusted people and he has given bogus purchase bills and accommodation entries to many parties to help them to show in accounts. The Assessing officer was of the view that assessee is one of the beneficiary of those alleged accommodation entries. The report of the Investigation Wing, Mumbai has been referred by the Assessing office in his assessment order. After giving show cause notice to the assessee and having considered the explanation of the assessee, the assessing officer made following disallowances: A.Y Unverifiable purchases Disallowance made @ 25% of total unverifiable purchase

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2007-08 12,50,00/- 3,12,500/- 2008-09 1,67,78,359/- 41,94,590/-

11.Aggrieved by the order of Assessing Officer, the assessee carried the matter in appeal before the Ld. CIT(A) who has confirmed the action of the assessing officer. The findings of the ldCIT(A) about validity of re-opening of assessment under section 147/148 is reproduced below:

“9. Ground regarding validity of re-opening of assessment for A.Y. 2008-09. 9.1 This ground of appeal pertains to validity of re-opening of the case u/s 147 of the Act and issuing of notice u/s 148 of the IT Act. I have perused the submissions of the AR and considered verbal arguments. It is seen from the records that the AO had received report from the Investigation Wing, Mumbai, which indicated that the assessee was beneficiary of accommodation entry operators. The said accommodation entry operator has admitted before the Investigation Wing that he had given bogus purchase bills to many persons including the assessee. Based on this report, the ld. assessing office had reason to believe that income has escaped the assessment. In the facts and circumstances, I am convinced that the re- opening in this case is justified. Further, in his submissions and verbal arguments, the AR contested that the ld. AO has not provide details of specific transactions that he is proposing to added. The exact nature i.e. whether purchases or loan transaction is also not stated by ld. AO the assessee. The AR emphasized that without specific details the assessee still tried to explain and prove all the transaction. He also insisted that the reasons provided to assessee did not contain the exacts nature of the transactions with alleged parties. I have considered the issue in details, and I feel that is lapse of ld. AO is not fatal. It is a remediable irregularity and the details were given in scrutiny proceedings. Hence, I decide the Ground no. 1 against the assessee.”

13.Shri P.M.Jagasheth, Learned Counsel for the assessee, begins by pointing out that there is no whisper in the reasons recorded, of any tangible material which came to the possession of the assessing officer. The assessing officer himself is not certain about the figures mentioned in the reasons recorded that how much income has escaped assessment. In the reasons recorded, it is mentioned by the assessing

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officer that ‘assessee is a beneficiary of non-genuine transaction of Rs. 8,50,500/- as a total value of transaction and Rs.1,67,78,359/- as a real value of transaction’ This clearly shows that assessing officer does not know that how much income has escaped assessment which is an important preliminary action and pre-requisite to initiate the reassessment proceedings under section 147 of the Act. Therefore, ld Counsel pleads that it reflects an arbitrary exercise of the powers conferred to assessing officer under section 147 of the Act, which is not acceptable.Therefore, ld Counsel submits that order passed by the Assessing Officer u/s 147 r.w.s 143(3) of the Act is not valid as the reasons recorded by the assessing officer itself are bad in law,hence entire re-assessment proceedings under section 147 of the Act are invalid and therefore re-assessment proceedings initiated by the assessing officer should be quashed.

15.We have heard learned arguments on both sides, and we have given our thoughtful consideration to rival contention. We have perused case file as well as paper books furnished by assessee with the able assistance of Shri P.M.Jagasheth representing the assessee andMs. Anupama Singla, Learned DR,representing the Revenue. We find that one key issue arises for our apt adjudication in these instant lis, which is, whether reasons recorded by the assessing officer falls into

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the kingdom of Section 147 of the Act or not? To ascertain this fact, let us, examine the reasons recorded by the assessing officer, to ascertain the fact whether reasons have been recorded as per the scheme of section 147 of the Act or not. The reasons recorded by the assessing officer under section 147 of the Act is reproduced below for ready reference:

“Form for recording the reasons for initiating proceedings under section 147 and for obtaining the approval of the Addl.C.I.T., Rage-3(3), Surat. 1. Name and address of the assessee RAIYANI BROTHERS 2 Range/Circle/Ward Ward 3(3)4), Surat 3. PAN AADFR0702K 4. Status Individual 5.Assessment Year 2008-09 6. The Quantum of Income which has escaped Rs. 1,67,78,359/- assessment 7. Whether the Provisions of Sec 147 (a) or 147(b) Yes are applicable or both the sections are applicable 8. Whether the assessment is proposed to be made Yes for the first time, If the reply is in the affirmative please state a) Whether any voluntary return has already been filed; and, b) If so, the date of filing the said return 9. If the answer to item 6 is in the negative please NA state a) The income originally assessed b) whether it is a case of under assessment at too low a rate, assessment which has been made the subject of excessive relief or allowing of excessive loss or depreciation 10. Whether the provisions of section 150(1) are No applicable. If the reply is in the affirmative, facts may be stated against item No.11 and it may also be brought out that the provisions of sec 150(2) would not stand in the way of initiating proceedings u/s 147 11. Reasons for the belief that income has escaped i) As per information provided by the assessment DGIT(Inv), Mumbai vide his letter No. DGIT (Inv)/Information/Diamond/2012-14 dated 14.03.2014 received by the ACIT, Central Circle-4, Surat in the group of Rajendra Jain, Sanjay Choudhary and Shri Dharmichand Jain are some of entry providers operating in Mumbai &Surat indulging in the providing accommodations entries in nature of bogus sales and unsecured loan across India. A Search & Seizure action in the case of Rajendra Jain other group carried out on 03.10.2013. Shri Rajendra Jain explaining inter-alia the modus operandi, on papers found in search. The ACIT, CC4, Surat has stated in his letter that the date being disseminated pertaining F.Y. 2007-08 i.e. A.Y. 2008-09 vide letter dated 10.03.2015 alongwith its

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enclosures. In view of the above, I have information in my possession that the assessee is a beneficiary of non- genuine transactions of Rs.8,50,500/- as a total value of transaction and Rs. 1,67,78,359/- as a real value of transaction during the F.Y. 2007-08 from the following parties. Sr. Name Total Real value of No. Value of transaction transaction 1 SPARSH 8,50,000 1,67,78,359/- ii) In this case, it is seen that assessee has involved in huge transaction as mentioned above during the F.Y. 2007-08. The assessee was not assessed u/s 143(3) in A.Y. 2008-09. While assessee has shown Return of Income for A.Y. 2008-09 is only Rs.9,43,010/-, which is not a true income considering the huge transaction. In view of the above, I have the reason to believe that the assessee has escaped assessment of Rs. 1,67,78,359/- on the above non-genuine transactions of Rs. 8,50,500/-, which is not shown in the RETURN OF INCOME filed for the A.Y. 2008-09. Thus the above income of Rs.1,67,78,359/- has escaped assessment by the reason of failure on the part of the assessee to disclose fully and truly, all material facts necessary for his assessment for A.Y. 2008-09. Hence, notice u/s 148 of the I.T. Act is being issued to verify the genuineness of the above transactions made by the assessee during A.Y. 2008-09. 12. Whether the Addl./Jt. Commissioner of Income Yes, I am satisfied. Tax is satisfied on the reasons recorded by the Assessing Officer that it is a fit case for the issue of a Notice u/s. 148 of the I.T. Act.

16.From the above reasons recorded, it is abundantly clear that assessing officer does not apply his mind while recording the reasons under section 147 of the Act. The assessing officer does not state any definite amount in the reasons so recorded by him. For instance, assessing officer has mentioned two sums of amount, that is Rs.8,50,500/- and Rs.1,67,78,359/- in his reasons recorded and it is not clear how much income has escaped assessment. At the cost of repetition, we reproduce below the relevant portion of the reasons recorded:

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In view of the above, I have information in my possession that the assessee is a beneficiary of non- genuine transactions of Rs. 8,50,500/- as a total value of transaction and Rs. 1,67,78,359/- as a real value of transaction during the F.Y. 2007-08 from the following parties. Sr. No. Name Total Real value of Value of transaction transaction 1 SPARSH 8,50,000 1,67,78,359/-

The above reasons recorded states that assessee is a beneficiary of non- genuine transactions of Rs. 8,50,500/- as a total value of transaction and Rs. 1,67,78,359/- as a real value of transaction during the F.Y. 2007-08 from SPARSH. In the reasons recorded the assessing officer states that total value of transaction is Rs. 8,50,500/- however real value of Rs. 8,50,500/- is to the tune of Rs. 1,67,78,359/-. Therefore, from the above reasons it is not possible to understand that how much income has escaped assessment. Thus, both figures, that is,Rs. 8,50,500/- and Rs. 1,67,78,359/- have been picked by the assessee on arbitrary basis, thus action of the assessing officer is like making a shot in dark to fasten the tax liability on the assessee, which is not the object of section 147 of the Act. In all cases where a particular receipt is sought to be taxed as income, the initial onus is on the Assessing Officer to prove that it is taxable, However in the instant case assessing officer by way of reasons recorded does not bring on record a definite sum/amount that a particular income has escaped assessment. Thus, these reasons recoded are not as per the provisions of section 147 of the Act.

“If the A.O. has reason to believe that any income chargeable to tax has escaped assessment for any assessment year.” - There must be material for the belief. - Circumstances must exist and cannot be deemed to exist for arriving at an opinion; - Reasons to believe must be honest and not based on suspicion, gossip, rumour or conjecture;

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- Reasons referred to must disclose the process of reasoning by which the AO holds “reasons to believe” and change of opinion does not confer jurisdiction to reassess; - There must be nexus between material and belief; and - Reasons recorded must show application of mind by the AO.

“The fact that the words "definite information" which were there in section 34 of the Act of 1922, at one time before its amendment in 1948, are not there in section 147 of the Act of 1961, would not lead to the conclusion that action can now be taken for reopening assessment even if the information is wholly vague, indefinite, far-fetched and remote. The reason for the formation of the belief must be held in good faith and should not be a mere pretence. The powers of the Income-tax Officer to reopen assessment, though wide, are not plenary. The words of the statute are "reason to believe" and not "reason to suspect". The reopening of the assessment after the lapse of many years is a serious matter. The Act, no doubt, contemplates the reopening of the assessment if grounds exist for believing that income of the assessee has escaped assessment. The underlying reason for that is that instances of concealed income or other income escaping assessment in a large number of cases come to the notice of the income-tax authorities after the assessment has been completed.” 20. For assessment year 2007-08 the assessing officer has recorded reasons stating that “search action was carried out by the Investigation wing, Mumbai on various

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groups which are involved in providing accommodation entries by way of issuing non genuine bills”. Thus assessing officer has just acted on the information received from the Investigation wing and did not apply his mind, thus reasons recorded by the assessing officer are not in accordance with the provisions of section 147 of the Act. 21.Therefore, in the light of the aforesaid judicial precedents, we note that to initiate reopening of the assessment, the Ld. AO must have 'reason to believe’ that income chargeable to tax has escaped assessment. Such reason to believe must be based on some material coming to the possession of the Ld. Assessing Officer which may trigger reason to suspect. It must be kept in mind that the “reason to believe” must have a rational connection with or relevant bearing on the formation of the belief, i.e, there must be direct nexus or link between the material and the formation of such belief. Since in the instant case, the issues/items for which the Assessing Officer has reopened the assessment are ambiguous and vague, as the amount mentioned in the reasons recorded is uncertain and the assessing officer does not know that how much income of the assessee has escaped assessment. The Assessing Officer having not carried out the scrutiny assessment within the prescribed statutory limit, cannot be given another innings for no fault of the assessee and therefore in the facts and circumstances of the case, we are of the considered opinion that ‘reason to believe’ which is the jurisdictional precondition to reopen the assessment as required by the law has not met in the reasons recorded in the instant case and therefore the action of the Assessing Officer to reopen the assessment is null in the eyes of law and hence we are inclined to quash the initiation of reassessment proceedings being ab-initio void. 22 As the reassessment itself is quashed, all other issues on merits of the additions, in the impugned assessment proceedings, are rendered academic and infructuous. 23. In the result, appeal filed by the assessee for assessment year 2007-08 and 2008-09, (in ITA No.222/SRT/2018 & ITA No.223/SRT/2018) are allowed.

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24.Coming to the assessee’s appeal in ITA No.224/SRT/2018, for Assessment Year 2013-14. The grounds of appeal raised by assessee are as follows:- 1.0 That on the facts and in the circumstances of the case, Ld. Commissioner of Income Tax (Appeals)-III, Surat [here-in-after referred to as Ld. CIT(Appeals) was not justified and grossly erred in confirming the action of the AO by accepting the addition of Rs.1,25,400/- on account of non-charging of interest on business advances made to suppliers. 2.0 That on the facts and in circumstances of the case, the Ld CIT(Appeals) was not justified and grossly erred in confirming the action of the AO in accepting ad hoc addition of Rs.38,951/- onaccountof office expenses and telephone expenses”

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27.We have heard both the parties. Learned Counsel submits before us that assessee has sufficient own interest free funds to advance as interest free loan to these two persons. The Ld. Counsel drew our attention towards the audited Balance Sheet submitted by the assessee, wherein we noticed that own funds of the assessee is to the tune of Rs.2,18,18,572/- whereas the assessee has advanced the interest free loan to the tune of Rs.63,22,457/-. The own interest free funds are more than the interest free advance, hence no disallowance is attracted. On the other hand, Ld. Sr-DR for the Revenue relied on the order of lower authorities.

28.We find merit in the submission of ld Counsel. We note that own interest free funds of the assessee is to the tune of Rs.2,18,18,572/- whereas the assessee has advanced the interest free loan to the tune of Rs.63,22,457/-, which is less than the own free funds, therefore, based on this factual position, no disallowance on account of interest free advance should be made and hence we delete the addition of Rs.1,25,400/-.

29.So far ground no. 2 is concerned, we note that it is an ad-hoc addition of Rs.38,951/- on account of office expenses. Learned Counsel submits that these are the miscellaneous expenses like cold drink expenses, tea and coffee expenses. Considering the yearly turnover of the assessee, the said expenses are wholly and exclusively for the purpose of assessee’s business. We note that turnover of the assessee during the year is to the tune of Rs.23,05,65,651/-.Therefore taking into account, the size of assessee’s turnover for the year under consideration, we note that these miscellaneous expenditures incurred by the assessee are wholly and exclusively for the purpose of assessee`s business. However, ld DR opposed the plea taken by the ld Counsel. We note that theAO could have ventured into estimation only after rejecting the books of accounts of the assessee u/s 145(3) and thereafter by best judgment

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assessment u/s 144 of the Act. Here in this case, the AO has not passed any order u/s 144 of the Act. TheAO thus without rejecting the books of account of the assessee has gone for estimation on suspicion and conjectures that the assessee may be inflating its expenses. While scrutinizing the expenditure if the expenses claimed are not having any nexus to the business of the assessee or if there is deficiency in the vouchers or there is no bills supporting the incurrence of an expenditure, at the most, expenses to the extent that are not supported by the vouchers can be held to be non-genuine and can be disallowed by the AO; and item-wise the AO could have disallowed the expenditure rather than going for ad hoc disallowance of percentage basis of the expenses claimed by the assessee which action of the AO is arbitrary in nature and cannot be sustained. Hence we delete thead-hoc addition of Rs.38,951/-.

30.In the result, assessee’s appeal in ITA No.222-224/SRT/2018 are allowed. A copy of the instant common order be placed in the respective case file(s).

Order pronounced on 22/10/2021by placing the result on the Notice Board as per Rule 34(5) of the income Tax (Appellate Tribunal) Rule,1963.

/- - (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER Surat/िदनांक/ Date:22/10/2021 / Dkp Outsourcing Sr.P.S. Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. Pr.CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order / / TRUE COPY / / Assistant Registrar/Sr. PS/PS ITAT, Surat