ACIT, CENTRAL CIRCLE- 30, NEW DELHI vs. RAJNIL SALES PVT. LTD., NEW DELHI

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “F” NEW DELHI (Through Video Conferencing)

BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND Dr. B.R.R. KUMAR, ACCOUNTANT MEMBER

I.T.As. No.4049/DEL/2017 Assessment Years: 2008-09

ACIT, Vs. Rajni Sales (P) Ltd., Central Circle-30, Room No.91, 4th Floor, 2B New Delhi. Grant Lane Kolkata. TAN/PAN: AABCR3491C (Appellant) (Respondent)

Assessee by: Shri Ajay Wadhwa, Adv. Department by: Shri Sushma Singh, CIT-D.R. Date of hearing: 12 04 2021 Date of pronouncement: 9 07 2021

O R D E R PER AMIT SHUKLA, JM:

The aforesaid appeal been filed by the Revenue against the order of Commissioner of Income Tax (Appeals) – XXX, New Delhi for the A.Y.2008-09, wherein the assessment has been quashed by the Commissioner of Income Tax (Appeals).

ITA No.4049/Del/2017 1 On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in law and on facts in directing the A.O to delete the addition made

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u/s 68 of the I.T. Act on account of unexplained cash credits amounting to Rs. 8,73,24,240/- on protective basis. 2 On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in law and on facts in directing the A.O to delete the addition of Rs. 4,36,621/- as unexplained expenditure on account of brokerage 3 On the facts and in the circumstances of the case, the Ld. CIT(A) had erred in law and on facts in holding that the initiation of action u/s 147 of the Act, is invalid and void ab-initio 4 That the grounds of appeal are without prejudice to each other 5. That the appellant craves leave to add, amend, alter or forgo any ground(s) of appeal either before or at the time of hearing of the appeal.”

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Statement of Shri Shiv Shankar Vanka was taken on 30.10.2012 during the search procedure in which he admitted that he provided the accommodation entry to M/s. Prakash Industries Ltd. group companies through Shri Ashok Aggarwal. Statement of Shri Shiv Shankar Banka, an entry operator is made part of reasons as annexure-III.

Shri Ved Prakash Aggarwal, the chairman of M/s. Prakash Industries Ltd. admitted that unaccounted cash was introduced in the books of account at share capital arranged through Shri. Ashok Aggarwal. Shri Ashok Aggarwal through affidavit dated 24th January, 2013 confirmed that he introduced Shrp PL Gupta employee/Director of M/s. Prakash Industries Ltd. with entry operator Shri Shiv Shankar Banka. Statement of Shri Ved Prakash Aggarwal, Chairman of M/s. Prakash Industries Ltd. is made part of reasons as Annexure-III.

Statement of Shri Ashok Kumar Aggarwal the erstwhile director of the company was also recorded u/s.131 of IT Act on 22.01.2013. He stated that he was director of Rajnil Sales Pvt. Ltd. from 2005 to 2009 and does not know about the nature of activities of the company. He also did not know about the share holding of the company. He was also asked about the manner in which the share capital of the company was raised. In response to thtat eh stated that he did not know anything about this matter. He further stated that he simply signs whatever documents were given to him. He never visited the company office. He knew nothgin about incorporation of company, auditor of company. He never involved in activities of company. He got Rs. 2 to 3000 per month from company for being signatory of documents. Statement of Shri Ashok Kumar Aggarwal, erstwhile director fo M/s. Prakash Industries Ltd. as made part of reasons as annexure-III.

M/s. Rajnil Sales Pvt. Ltd. was a paper company without having any tangible assets and as investments were also in paper companies. As

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such the share capital and share premium introduced in its books was bogus. The investments were made in paper companies which did not have any substantive business activities and some of them were found non existent at the addresses given. The fact has been admitted by the chairman of the group and the entry operator.

From the examination of records of company, it is found that the amount of Rs.8.32 crore has been invested in M/s. Prakash Industries Ltd. grou. The funds raised by assessee by way of share application and investments are shown to have been received from companies which are paper companies and run by entry operators. Hence the source of funds is non genuine. The said amount is liable to be taxed. Therefore I have reason to believe that income of Rs.8.32 crore has escaped assessment for the Assessment Year 2008-09 by reason fo failure on part of assessee to disclose fully and truly all material facts necessary for its assessment. Therefore in my opinion it is a fit case for issue of notice u/s..148.”

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protective assessment which cannot be held. The relevant observation and finding is as under:- “From the above, following facts emerged:  The Assessing Officer has recorded the ‘reason to believe’ that income of Rs.8.32 crore, has escaped assessment, on the basis of statement recorded u/s. 132(4) of the Act of Shri Ved Prakash Agarwal and Shri Shiv Shankar Banks, who has accepted that the accommodation entries have been taken, to introduce the unrecorded profits of M/s. Prakash Industries Ltd. / beneficiary company, through layering.  In the case of appellant / investor company, as well as in the case of M/s Prakash Industries Ltd. / beneficiary company, It is clear that there is a suspicion in the mind of the A.O. regarding in whose hands, the alleged amount in question was to be assessed. From the above, it is clear tot to A.O. has simply relied upon on the information received from investigation wing and therefore, there is non application of mind by the A.O. Further, it is also clear, that the A.O. has resorted to Protective assessment only, which is against the spirit of section 147 of the Act since, having “reason to believe” that certain income has escaped assessment for to said A.Y., is sine qua non for assumption of jurisdiction to open the case u/s. 147 of the Act, is found missing in the case of appellant. Therefore, opening of assessment in the case of appellant u/s. 147 of the Act, is not correct. The facts of the appellant, are squarley covered by the above 2 decision of High Court Delhi (Supra). In view of to above, I am of to considered opinion that to issue of notice u/s. 148 of to Act, is not done by following proper procedure of law and without application of mind, for recording reason u/s 147. In view of these facts and circumstances, 1 agree with the arguments of the appellant and therefore, the initiation of action u/s 147, is held to be invalid and void ab-inltio.

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Accordingly, ground No. 1 to 3 are hereby allowed.”

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recorded on 31.03.2015. In the written submissions, the assessee has made following submission. Reasons to believe are factually and legally incorrect, vague and contain serious grave errors;reopening on the basis of incorrect reasons to believenot justified At the very outset, we respectfully submit that the 1. reasons are factually and legally incorrect and that there is no material in possession of the Department to even remotely suggest that the amount of Rs. 8.32 croresis the undisclosed income of the assessee company. On perusal of reasons to believe recorded by the 2. Ld. AO we find that at last para of the reasons he recorded that “From examination of accounts of the company, it is found that amount of Rs. 8.32 crores has been invested in Prakash Industries Ltd. group. The funds by way of share capital premium are shown to have been received from the companies which are paper companies and run by the entry operators. Hence the source of funds is non genuine. The said amount is liable to be taxed under I. Tax Act. Therefore I have reasons to believe that income of Rs. 8.32 crores has been escaped assessment for the Asst. Year 2008-09 by reason of failure on part of assessee to disclose fully and truly all material facts necessary for its assessment.”Refer page no. 19 of the paper book.

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First of all we wish to state that in the entire 3. reasons to believe there is no reference of ITR filed by the assessee from where the Ld. AO found that the assessee had failed to disclose any material fact which led to reopening of assessment. The statement of Ld. AO that assessee had failed 4. to disclose all the fully and truly all material facts is not supported by any evidence on record. It is just a bald statement. Factual error: - Amount of Rs. 8.32 crores 5. invested in M/s Prakash Industries.– Which in fact is 8.73 crores. If the Ld. AO had recorded reasons after examining the books of account of the assessee and applying his mind, then he would have known that the total amount invested in M/s Prakash Industries during the year was Rs. 4.36 crores. This fact can be verified from the audited financials of the assessee attached at page no. 2-9 of the paper book. Out of Rs. 8.32 crores, sum of Rs. 4.36 crores was invested in A.Y. 2007-08. Therefore Ld. AO did not proceed legally to add the entire amount in the relevant assessment year. Factual and legal error: -Rs. 8.32 crores has 6. been escaped assessment for the assessment year 2008-09.If the Ld. AO had recorded the reasons after examining the books of the assessee and applying his mind, then he would have known that the assessee did

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not receive any share capital during the relevant assessment year.In fact during the year under consideration the assessee did not receive credit of Rs. 8.73 crores. The provisions of section 68 specifically states that the if any sum is found credited in the books for any previous year,….the sum so credited may be charged to the income tax as the income of assessee of that previous year.”

Reasons are vague: 7.

i. The Ld. AO in the entire reasons to believe did notmention any material to corroborate his conclusion except for the retracted statements. ii. In the reasons the Ld. AO mentioned that from examination of books it is found that Rs. 8.32 crores has been invested but the relevant page of from where he found such information is not provided. iii. It is mentioned in the reasons that assessee had not disclosed truly and materially not disclosed material fact but did not mention which material fact is not disclosed in the ITR.

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any corroborating evidence cannot be made basis of reopening. 9. All these factual errors were mentioned by the assessee in his objection filed on 03.03.2015 attached at page no. 24-25 of the paper book. 10. The assessee had filed various credible evidences in its possession to establish that the total investment in Prakash Industries during the year was Rs. 4.36 crores and the source of funds of such amount were sale proceeds of shares. Refer point no. IX on merits where the assessee explained each and every fact and the document relating to the transaction. Needless to add we are unable to understand how 11. the genuine transaction of investment in shares of M/s Prakash Industries become in-genuine merely because of the retracted statements of some persons without any corroborating material. All the above shows the lack of application of mind 12. by the Ld. AO and incorrect belief while recording reasons. It is settled law in the case of CIT vs. Kelvinator 13. of India Ltd. [2010] 320 ITR 561 (SC) where Hon’ble Apex court has held that Assessing Officer has power to reopen, provided there is 'tangible material' to come to conclusion that there is escapement of income from assessment; reasons must have a live link with formation

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of belief. Assessee also relies on the following judgements of the jurisdictional court: CIT vs. Ashian Needles (P.) Ltd.[2016] 384 ITR 14. 144 (Delhi):Hon’ble Delhi High court has held that “6. The decision of the ITAT appears to have turned entirely on facts. It is observed by the ITAT that there was nothing on record before the AO even in the form of any specific information that the Assessee had converted black money into white through an entry provider. Further, while in the notice issued to the Assessee for four years, the AO had observed that Rs.27 lakhs, Rs.62 lakhs, Rs.4.80 crores and Rs.6.96 crores respectively had escaped assessment, the additions actually made for the respective years were Rs. 27lakhs, Rs.10 lakhs, Rs.1.5 crores and Rs. 10 lakhs respectively. This meant that the AO was himself "not sure that the entire amount which was mentioned in the report of the investigation was on account of the escaped income of the Assessee." This also showed that the AO had not applied his mind before issuing notice under Section 148 of the Act.” Dr.Ajit Gupta v. ACIT (2016) 383 ITR 361 15. (Delhi) (HC): It has been held by Hon’ble Delhi High Court that Thereasonforthereopeningoftheassessmentwasamistaken factualpremisethattheassesseehad changed the system of accounting from mercantile to the cash system. It was more than adequately explained by the assessee that this

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was an inadvertent error. The assessee has convincingly shown that he has consistently been following the mercantile system of accounting not only for assessment years in question but for the earlier and later assessment years as well. Hence, reassessment notice was to be quashed.

CIT vs. Atul Jain [2007] 212 CTR 42 (Delhi): 16. Hon’ble Delhi High Court has held that“17. Looked at in the light of the decisions placed before us and the law laid down therein, it is necessary to appreciate the information available with the Assessing Officer in the present case. The only information is that the assessees had taken a bogus entry of capital gains by paying cash along with some premium for taking a cheque of that amount. The information does not indicate the source of the capital gains (which in this case are shares). We do not know which shares have been transacted and with whom has the transaction taken place. There are absolutely no details available and the information supplied is extremely scanty and vague. Insofar as the basis for the reasons is concerned, even this is absent. The Assessing Officer did not verify the correctness of the information received by him but merely accepted the truth of the vague information in a mechanical manner. The Assessing Officer has not even recorded his satisfaction about the correctness or otherwise of the information or

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his satisfaction that a case has been made out for issuing a notice under section 148 of the Act. Read in this light, what has been recorded by the Assessing Officer as his "reasons to believe" is nothing more than a report given by him to the Commissioner of Income-tax. As held by the Supreme Court in ChhugamalRajpal’s case (supra) the submission of a report is not the same as recording of reasons to believe for issuing a notice. The Assessing Officer has clearly substituted form for substance and, therefore, the action of the respondent falls foul of the law laid down by the Supreme Court in ChhugamalRajpal’s case (supra) which is clearly applicable to the facts of these appeals.” 17. Oriental Insurance Company Vs CIT (Delhi High Court) [2015] 378 ITR 421 (Delhi) It is not disputed that the reasons that led the Assessing Officer to reopen the assessment were factually incorrect. It is not disputed that the assessee was carrying on only one business - General Insurance Business, which is regulated under the Insurance Act, 1938. Indisputably, the insurers cannot carry on any business other than the insurance business or any prescribed business. The business of General Insurance is regulated and there is no allegation that the regulatory authority has found the assessee to be in default of any provisions of the Insurance Act, 1938. The revenue also did not dispute that the Assessing Officer's assumption that the assessee

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was carrying on two streams of business was incorrect. Thus, this reason to believe that the Assessee's income had escaped assessment is clearly without any factual basis. [Para 11] Before the Tribunal, the revenue had contended that the errors in the reasons recorded were minor errors, which did not detract from the fact that income had escaped assessment. This contention is without merit as reasons to believe that income had escaped assessment is a necessary pre-condition which enables the Assessing Officer to assume jurisdiction to proceed further. In the event such reasons are found to be erroneous, the Assessing Officer would not have the jurisdiction to make an assessment and any proceedings initiated on the basis of palpably erroneous reasons would be without authority of law. Therefore, even if it is assumed that, infact, the assessee's income has escaped assessment, the Assessing Officer would have no jurisdiction to assess the same if his reasons to believe were not based on any cogent material. In absence of the jurisdictional pre- condition being met to reopen the assessment, the question of assessing or reassessing income under section 147 would not arise. Thus, the proceedings under section 147 are liable to be quashed as being without jurisdiction. [Paras 13 and 14]

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CIT vs. ChintooTomar [2015] 229 Taxman 260 18. (Delhi) “5….The reasons so recorded should have some basis or support and not a mere gossip. The reasons cannot be a mere pretence and should be held in good faith. The expression "reasons to believe" predicates a belief which is founded and induced by existence of palpable or cogent material or information. Reason to suspect cannot amount to reason to believe. As it is the beginning of the inquiry, having a prima facie opinion is sufficient; and irrebuttable conclusive evidence or finding is not required. But the prima facie formation of belief should be rational, coherent and not ex facie incorrect and contrary to what is on record. As noticed in paragraph 3 above, the facts recorded are incorrect. Secondly, the reasons must have live nexus and must disclose on what basis or evidence the Assessing Officer feels and has reason to believe that income chargeable has escaped assessment. The reasons must be germane and genuine. For grounds elucidated in paragraph 4 above, this requirement falters. The reasons recorded by the Assessing Officer do not meet and satisfy the said basic and limited pre-jurisdictional requirement. There is no rational connection between the reason recorded and the formation of belief that income had escaped assessment.”

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I. Reasons to suspect cannot be equated with reasons to believe which is a necessary precondition for any action u/s 147 No action of reassessment u/s 147 of the Act is permissible for framing protective assessment in the absence of substantive assessment till the date of assumption of jurisdiction u/s 147 of the Act.

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i.e, much after the date of assessment order passed in the case of assessee.

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contemplate the reopening of an assessment under Section 148 on such a hypothesis or a contingency which may emerge in the future. 16. The basis on which the Assessing Officer has purported to reopen the assessment is placed beyond any doubt by the affidavit which has been filed in reply to the Petition. As we have noted, there is no ambiguity whatsoever in the reasons which have been communicated to the assessee in the order dated 18 May 2012, butin the affidavit in reply, it has been stated that the income of Rs.32.83 Crores arising from the investment of contributions of the contributors to the Venture Capital Fund which has been claimed as exempt in the hands of the Petitioner should be assessed as income in the hands of the AOP of the contributors of the Petitioner "on a protective basis". Again it has been stated that the issue of taxing the AOP of the contributors of the Petitioner "has arisen from the submission of the Petitioner before the appellate authorities" where the Petitioner has contended that the transactions amount to a revocable transfer and that the income which would arise should be taxed in the hands of the individual contributors. The reopening of an assessment under Section 148 on the basis of a submission which is raised before the appellate authority by the assessee is clearly impermissible because what Section 147 requires is a formation of a reason to

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believe by the Assessing Officer. In the present case, there is clearly a want of compliance with the jurisdictional condition. The Assessing Officer has not formed a reason to believe that income has escaped assessment since the reopening is based purely on a contingency that may arise upon a particular outcome before the appellate tribunal.”

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any justified, cogent and legal reason. We, therefore, further hold that there existed no good or sufficient ground or reason for reopening of the case and issuance of notices u/s 148 of the Act against the assessee company. We also hold that the condition precedent for valid initiation of reassessment is not being satisfied as the belief that income chargeable to tax has escaped assessment does not exist on the date of assuming jurisdiction u/s 147 of the Act. Therefore, all subsequent proceedings including issuance of notice u/s 148 of the Act were illegal and bad in law. Accordingly, ground no. 2, 3 and 4 of the assessee are allowed and we hold that the CIT(A) has erred in confirming the action of the AO for assuming jurisdiction u/s 147 of the Act and issuing notice u/s 148 of the Act to the assessee for reopening of assessment and, thus, all proceedings u/s 147 and 148 of the Act to the assessee including notices are hereby quashed.

b. Hon’ble ITAT Mumbai in the case of M.P. Ramachandran Vs. DCIT (32 SOT 592) has held that: “Thus, protective assessment is always successive to the substantive assessment. There may be a substantive assessment without any protective assessment, but there cannot be any protective

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assessment without there being a substantive assessment. In simple words, there has to be some substantive assessment/addition first which enables the Assessing Officer to make a protective assessment/addition. Substantive addition/assessment is made in the hands of the person in whose hands the Assessing Officer prima facie holds the opinion that the income is rightly taxable. Having done so and with a view to protect the interest of the revenue, if the Assessing Officer is not sure that the person in whose hands he had made the substantive addition rightly, he should embark upon the protective assessment. Thus, the protective assessment is basically based on the doubt of the Assessing Officer as distinct from his belief which is there in the substantive assessment. Obviously, there is no place for ‘doubt’ in the scheme of reassessment, as it has to be a belief of the Assessing Officer about the escapement of income, which is the foundation for assessment or reassessment under section 147.Even if for a moment, the departmental view is accepted that the protective addition is different from substantive addition and, hence, the reassessment proceedings be upheld, ultimately the same conclusion will follow if the substantive addition is struck down at a place where it was made. In such a scenario, the protective addition will get converted into

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substantive addition in the reassessment. That will also run contrary to the format of reassessment, being to tax an income which has escaped assessment. In that case again, it will tantamount to reopening assessment on the basis of an item of income or disallowance, which has already been made in block assessment of the assessee, thereby leaving no income escaping assessment. Under these circumstances, having made an addition of Rs. 527.85 lakhs in the block assessment, the Assessing Officer was not justified in forming the belief, either on substantive or protective basis, that the same income had escaped assessment in the instant year. Therefore, the initiation of reassessment proceedings on this count could not be upheld. [Para 22]

II. Addition made is without considering the facts of the case; non application of mind

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III. The assessee had discharged its onus by furnishing all the documentary evidences to establish the identity, genuineness and creditworthiness of the share applicants

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IV. All the allegations made by the Ld. AO are without any basis;the assessee had duly rebutted all the allegations of the Ld. AO- Refer page no. 37-39 of the assessment order

S. No. Allegations of Ld. AO Rebuttal of assessee 1. Statement of entry operator Shiv 1. The department has no Shankar Banka was recorded u/s corroborative evidence to support the 132(4) in which he has admitted to content of the statement. have provided accommodation 2. Mr. Shiv Shankar Banka has entries to Prakash Group retracted this statement on 05.11.2012 i.e, within a weak by stating that the statement was recorded under the extreme pressure and he was forced to state what is written in that statement.Refer page no. 80-81 of the common paper book. 2. Statement of new directors (after 1.The statement recorded by the Ld. taken over of the investor company AO was not provided during the course by Prakash Group) of this of assessment proceedings in spite of Jamakharchi Company has been specific request and was only provided recorded and they have admitted with the assessment order. This is in that they have no knowledge of the gross violation of principle of affairs of these companies and natural justice. they are acting on the instructions of Prakash Group management. 2.Without prejudice to the above, On perusal of the statement of

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directors it is quite evident that none of the director stated that the assessee company is a paper company. Mere because the directors are unware of the working of the company it does not necessarily means that the company is a bogus company.

2.The directors of the investor companies were the employees of the Prakash Industries and the Shri. Agarwal is the promoter and substantial shareholder of the assessee company. Therefore presence of cheque book at the premises of Prakash where directors were sitting is not illegal and cannot be used against the assessee. The assessee respectfully submitted that the cheque books were lying at the office of the directors for the payment of statutory dues.

Mere availability of certain documents does not prove that the documents were used for manipulating the accounts of the company.

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commission.

The assessee has also failed to produce the people involved in running of the operations of Assessee Company as well as share capital contributing companies.

No register of allotment of shares of assessee company has been produced.

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paper book. The shareholders of assessee company before taken over by 2. The allegation made by the Ld. AO assessee group were in paper is only on the basis of his companies. assumptions.

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that the Kolkata based companies assessee company for the rebuttal. in which investments were made This is in gross violation of principle are also jamakharchi companies as of natural justice. The inspector seen from their addresses and report was provided to the assessee verification made at some of those only at the time of proceedings before companies. Application form the CIT(A). proved that same controlling persons are for most of share applicant companies. 2. On perusal of inspector report we found that the name and designation of the inspector is nowhere mentioned in the inspector report neither it is mentioned that when the enquiries were conducted.

3.The allegation made by the Ld. AO is completely baseless. In the enquiry report name of the Vanshi Farms in not mentioned anywhere. No enquiry was made in respect of the investor company.

No dividend was ever provided by Your Honours, the dividend is never the 15. the assessee company and there is criteria of for receiving the share capital no justification of investment at at huge premium. huge premium.

Further there is no law which held the non-dividend declarant company as bogus company. 16. ITR of all new share applicants It is already submitted that the have been filed from the same IP assessee company is a group company

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Address. This shows that the of the promoter group pf M/s Prakash documents of all paper company Industries. Therefore it cannot be have been prepared at same place. doubted if the ITRs have been filed from the same IP address.

On issue of brokerage: The addition of brokerage is consequential to the main addition of share capital/investments and solely based on the statement of Shri. V.P. Agarwal.Refer page no. 47-48 of the assessment order.Since the addition of share capital made by the Ld. AO is baseless and Shri. VP Agarwal retracted his statement which was given under threat and coercion on the very next day. The consequential addition of brokerage deserves to be deleted.

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Sd/- Sd/- [Dr. B.R.R. KUMAR] [AMIT SHUKLA] [ACCOUNTANT MEMBER] JUDICIAL MEMBER DATED: 9/07/2021 PKK: