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Income Tax Appellate Tribunal, JAIPUR BENCHES, JAIPUR
Before: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, AM vk;dj vihy la-@ITA No. 516/JP/2016
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR Jh fot; iky jko] U;kf;d lnL; ,oa Jh Hkkxpan] ys[kk lnL; ds le{k BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, AM vk;dj vihy la-@ITA No. 516/JP/2016 fu/kZkj.k o"kZ@Assessment Year : 2007-08 cuke M/s Merta Oil Mills Company Income Tax Officer, Vs. Pvt. Ltd., Ward 4(1), G-101, Vijay Laxmi Apartment- Jaipur. II, Bhaskar Marg, Banipark, Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AABCM 2075 K vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri P.C. Parwal (CA) jktLo dh vksj ls@ Revenue by : Smt. Seema Meena (JCIT) lquokbZ dh rkjh[k@ Date of Hearing : 27/04/2018 mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 11/05/2018 vkns'k@ ORDER
PER: BHAGCHAND, A.M. This is an appeal filed by the assessee emanates from the order of the ld. CIT(A)-2, Jaipur dated 19/02/2016 for the A.Y. 2007-08.
The assessee company is engaged in trading of soya deoiled cake and allied products. The assessee filed return of income on 15/11/2007 showing income of Rs. 16,250/-. Notice U/s 148 of the Income Tax Act, 1961 (in short the Act) was issued on 25/3/2014. The return filed on
ITA 516/JP/2016_ 2 M/s Merta Oil Mills Company P Ltd. Vs ITO
18/11/2007 was treated as for return of income against the notice U/s 148
of the Act. A search and survey action was carried out in the case of Shri
Praveen Kumar Jain, Mumbai (entry provider) and his group by the DGIT
(Inv.) Mumbai on 01/10/2013. During that search/survey, various
incriminating documents were seized and impounded. Those persons were
engaged in providing accommodation entries. The Assessing Officer issued
notice U/s 148 of the Act by recording the reasons and finalized the
assessment proceedings U/s 148/143(3) of the Act and assessed total
income of Rs. 75,16,250/-. The ld. CIT(A) has confirmed the action of the
Assessing Officer.
Now the assessee is in appeal before the ITAT by taking following
grounds of appeal:
“1. The ld. CIT(A) has erred on facts and in law in upholding the validity of the order passed by A.O. U/s 147 of the IT Act, 1961.
The ld. CIT(A) has erred on facts and in law in confirming an addition of Rs. 75 lakhs U/s 68 by treating the share capital money received from the following parties as unexplained: S. No. Name of the company Amount 1. Alka Diamond Industries Ltd. Rs. 15 lacs 2. Javda India Impex Ltd. Rs. 15 lacs 3. Kush Hindustan Entertainment Ltd. Rs. 15 lacs 4. Vanguard Jewels Ltd. Rs. 15 lacs 5. Yash-V Jewels Ltd. Rs. 15 lacs Total Rs. 75 lacs 2.1. The ld. CIT(A) has erred on facts and in law in confirming the above addition ignoring that Sh. Praveen Jain whose statement is made the
ITA 516/JP/2016_ 3 M/s Merta Oil Mills Company P Ltd. Vs ITO
basis for making addition has retracted from his statement and opportunity to cross examine him was not provided.
The assessee carves to amend, alter and modify any of the grounds of appeal.
The appropriate cost be awarded to the assessee.”
The ground No. 1 of the appeal is against upholding the validity of
the reassessment proceedings and order passed U/s 147 of the Act.
While pleading on behalf of the assessee, the ld AR has also
submitted a written submissions, which are reproduced as under:
From the plain reading of the reasons recorded, it can be noted that notice u/s 148 is issued solely on the basis of information received from Investigation Wing, Mumbai where it referred to various evidences found during search operation in case of Praveen Jain group of cases. The primarily condition for initiating action u/s 147 is that AO must have reason to believe that any income chargeable to tax has escaped assessment. This satisfaction must be of AO himself and not a borrowed satisfaction. Reason to belief cannot be at the instance of audit party or investigation conducted by others or third party statement etc. In the present case, the reasons says that assessee has suppressed its profits by taking accommodation entry of Rs.75,00,000/- in the nature of bogus purchases from five companies. Whereas in the present case, assessee has not made any purchases from the above parties but has received share application money to whom shares are also allotted. This shows that the AO has not examined the information received by him to verify whether assessee has made any purchases from these parties and whether the same is reflected in the accounts or not. The Ld. CIT(A) held that it is a clerical error ignoring that recording of reasons is foundation for reopening of assessment and if the reasons recorded are wrong, incorrect or vague, all consequent proceeding are also illegal and invalid. This shows that AO mechanically and blindly acted upon the
ITA 516/JP/2016_ 4 M/s Merta Oil Mills Company P Ltd. Vs ITO
information received from the Investigation Wing, Mumbai without applying his own mind to arrive at believe that income of the assessee has escaped assessment. Hence, the reopening of assessment only at the instance of Investigation Wing, Mumbai and that too on vague reasons is illegal and bad in law. For this, reliance is placed on the following cases:-
Sarthak Securities Co. (P) Ltd. Vs. ITO 329 ITR 0110 (Del.) (HC) decision dt. 18.10.2010 Facts of the case In this case, the return filed by the assessee was processed and intimation u/s 143(1) was issued accepting the return. Notice u/s 148 was issued for the following reason:-
“Information was received from the office of the Addl. Director of IT (Inv.) Unit V that M/s Sarthak Securities (P) Ltd. had received bogus accommodation entries during the financial year 2002-03 relevant to the asst. yr. 2003-04 as per details placed contra. ........................
According to the information received from the Director of IT (Inv.), the accommodation entries are received as share application money or as unsecured loan. The assessee’s balance sheet as on 31st March, 2003 showed that there is introduction of share capital of Rs. 2,84,800 and share premium of Rs. 8,65,000. In this case return of income for the asst. yr. 2003-04 was filed on declaring income of Rs. 15,360 and as per records assessment has not been completed under s. 143(3) of the IT Act. As the assessee had received bogus accommodation entry of Rs. 10,50,000 during the asst. yr. 2003-04, I have reason to believe that income chargeable to tax has escaped assessment."
Findings of the case:- The AO was aware of the existence of four companies with whom the assessee had entered into transaction. Both the orders clearly exposit that the AO was made aware of the situation by the Investigation Wing and there is no mention that these companies are fictitious companies. Neither the reasons in the initial notice nor the communication providing reasons remotely indicate independent application of mind. True it is, at that stage, it is not necessary to have the established fact of escapement of income but what is necessary is that there is relevant material on which a reasonable person could have formed the requisite belief. To elaborate, the conclusive proof is not germane at this stage but the formation of belief must be on the base or foundation or platform of prudence which a reasonable person is required to apply. As is manifest from the perusal of the supply of reasons and the order of rejection of objections, the names of the companies were available with the authority.
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Their existence is not disputed. What is mentioned is that these companies were used as conduits. In that view of the matter, the principle laid down in Lovely Exports (P) Ltd. gets squarely attracted. The same has not been referred to while passing the order of rejection. The assessee in his objections had clearly stated that the companies had bank accounts and payments were made to the assessee company through banking channel. The identity of the companies was not disputed. Under these circumstances, it would not be appropriate to require the assessee to go through the entire gamut of proceedings. It is totally unwarranted. Resultantly, the initiation of proceedings under s. 147 and issuance of notice under s. 148 of the Act are quashed. Banke Bihari Properties Pvt. Ltd. Vs. ITO (2016) 46 CCH 0546 (Del.) (Trib.) decision dt. 22.04.2016 Facts of the case:- In this case, the assessee has not filed any return of income. In the form for recording the reasons for initiating proceedings u/s 148 and for obtaining the approval of the addl. commissioner of income tax / commissioner of income tax, it was stated as under:-
“In this case, the assessee has not filed any return of income as per the record of this office. Thereafter, information was received from the Investigation Wing of the Department that the above named assessee is a beneficiary of accommodation entries received from the private limited companies floated by Shri Tarun Goyal during the period relevant to AY 2006-07. In the report it has further been stated that all the entry giving companies are operating from the office of Shri Tarun Goyal addressed at 13/34, WEA Arya Sarns Road, Karol Bagh, New Delhi and his earlier office at 203- Dhaka Chambers, 2069/39, Naiwala, Karol Sa'gn, New Delhi. It has also been stated that the directors of these companies are former and present employees of Shri Tarun Goyal who were used merely for signing the documents, bank cheques etc. I have perused the information contained in the report and the evidences gathered. The report provides details of the modus operandi and explains how the unaccounted money of the beneficiaries are ploughed back in its books of account in the form of bogus share capital/capital gains, unsecured loans etc. after routing the same through the bank account (s) of the entry operators floated by Shri Tarun Goyal. Entry operators were identified after thorough investigation on the basis of definitive analysis of their identity, creditworthiness and the source of the money ultimately received by the beneficiaries, In the instant case, the assessee is found to be the beneficiary of accommodation entry from such entry operator controlled by Shri Tarun Goyal during the FY 2005-06 relevant to AY 2006-07 as per the following specific details of transactions.
S.No. Beneficiary Company Name of the entry Amount involved. operator (Rs.) 1. Banke Bihari Properties Pvt. Bhavani Portfolio P. 25,00,000/- Ltd. Ltd.
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Banke Bihari Properties Pvt. Countrywide Credit & 20,00,000/- Ltd. Securities P. Ltd. -----------so on--------
The assessee has received unexplained sums from the entry operators as per the above details as per information available with the undersigned. As explained above, the identity, creditworthiness and genuineness of transactions with the reasons found to be entry operator cannot be established. I therefore, have reasons to believe that on account of failure on the part of the assessee to disclose truly and fully all material facts necessary for assessment for above assessment year, the income chargeable to tax amounting to Rs.2,90,00,000/- has escaped assessment within the meaning of section 147 of the Act. Since four years has expired from the end of the relevant assessment year, and the assessee has not filed any return of income, the reasons recorded above for the purpose of opening of assessment is up for kind satisfaction of the Addl. CIT, Range-2, New Delhi in terms of the provisions to section 151(2) of the IT Act, 1961.”
The Addl. CIT gave his satisfaction on the reasons recorded by the AO by writing ‘approved’. Accordingly, a notice u/s 148 was issued to assessee and assessment was framed u/s 147/143(3) of the IT Act, 1961 by making addition on account of unexplained credit.
Findings of the case:- AO has not applied his mind so as to come to an independent conclusion that he has reason to believe that income has escaped during the year. The reasons are vague and are not based on any tangible material as well as are not acceptable in the eyes of law. Even otherwise, the Addl. CIT has written “Approved” which establishes that he has not recorded proper satisfaction / approval, before issue of notice u/s. 148 of the I.T. Act. Thereafter, the AO has mechanically issued notice u/s 148 of the Act, on the basis of information allegedly received by him from the Directorate of Income Tax (Investigation), New Delhi. The reopening is thus bad in law and deserves to be quashed. This view is supported by the following judgments/decisions:-
Pr. CIT vs. G&G Pharma India Ltd. in ITA No. 545/2015 dated 8.10.2015 of Delhi High Court ITO vs. M/s NC Cables Ltd. in ITA No. 4122/Del/2009 dated 22.10.2014 Amarlal Bajaj vs. ACIT reported in (2013) 37 taxmann.com 7 (Mum.) (Trib.) CIT vs. S. Goyanka Lime & Chemicals Ltd. reported in (2015) 56 taxmann.com 390 (MP) (HC) CIT vs. S. Goyanka Lime & Chemical Ltd. reported in (2015) 64 taxmann.com 313 (SC)
V.S. Capital Services Pvt. Ltd. Vs. ITO 46 CCH 0224 (Del.) (Trib.) decision dt. 03.03.2016
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Facts of the case The assessee filed return of income on 31.10.2002 declaring income of Rs.3,811/-. The return was processed u/s 143(1) of the Income-tax Act, 1961 on 27.1.2003. The case was reopened u/s. 147 of the Income Tax Act after recording the following reasons:-
“The Information has been received by the Directors of income tax (Inv)-I New Delhi vide letter no DIT (Inv)-I/2006-07/AE/258 at 16/6/2006 that the above said company have received accommodation entries as above:-
Rs.100000/- on 31.03.2002 from M/s. Rabik Exports Limited Through Corporation Bank Paschim Vihar A/c No.-52199 and Rs. 100000/- on 31.03.2002 from Mis. Shashi Sales & Marketing Pvt. Limited Through Corporation Bank Paschim Vihar A/c No.-52351.
In reality these accommodation represent the assessee own unaccounted money. The assessment in this case was completed u/s 143(1) on 27.01.2003. These entries are not shown in the return of income filed on 31 October, 02. In view of the above, I have reasons of believe that the income of Rs. 2,00,000/- has escaped assessment for the A. Year 2002-03. Therefore the case is re- opened u/s 147 of the Income Tax act for the assessment year 2002-2003.”
Assessment was accordingly framed u/s 147/143(3) of the IT Act, 1961 by making addition on account of unexplained credit.
Findings of the case:- AO has not applied his mind so as to come to an independent conclusion that he has reason to believe that income has escaped during the year. The reasons are vague and are not based on any tangible material as well as are not acceptable in the eyes of law. The AO has mechanically issued notice u/s. 148 of the Act, on the basis of information allegedly received by him from the Directorate of Income Tax (Investigation), New Delhi. The reopening is bad in law and thus deserves to be quashed. This view is supported by the decision of Hon’ble High Court of Delhi in ITA No. 545/2015 dated 8.10.2015 in the case of Pr. CIT vs. G&G Pharma India Ltd.
Rasalika Trading and Investment Co. (P.) Ltd. Vs. ITO 45 CCH 0361 (Del.) (Trib.) decision dt. 27.11.2015
Facts of the case In this case, the reasons recorded for the issuance of notice u/s 148 of the Income Tax Act, 1961 are as under:-
“Return of income declaring an income of Rs. 12,790/- was originally filed by the assessee for the above assessment year on 30.10.2004 and the case was processed
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u/s 143(1). Information has been received from the Investigation Wing of the Income Tax Department that the above named assessee is a beneficiary of accommodation entries received from certain established entry operator identified by the Wing during the period relevant to A.Y. 2004-05. A comprehensive investigation was carried out by the Investigation wing for identification of entry operators engaged in the business of money laundering for the beneficiaries and on the basis of investigation carried out and evidences collected, a report has been forwarded. I have perused the information contained in the report and the evidences gathered. The report provides details of the modus operandi of the 'money laundering scam' and explains how the unaccounted money of the beneficiaries are ploughed back in its books of account in various forms including the form of bogus share capital/ capital gains etc after routing the same through the bank account (s) of the entry operators. Entry operators were identified after thorough investigation on the basis of definite analysis of their identity, creditworthiness and the source of the money ultimately received by beneficiaries. These entry operators are found to be mostly absconding/ non-complying after the unearthing of the 'Money Laundering Scam' leaving the said money at the disposal of the beneficiaries without any associated cost or liability. In the instant case, the assessee is found to be the beneficiary of accommodation entry from such entry operators as per the following specific details of transaction:-
.........
The assessee has received unexplained sums from the entry operators as per the above details as per information available with the undersigned. As explained above, the identity, creditworthiness and genuineness of transactions with the persons found to be entry operators cannot be established. I therefore have reasons to believe that the income chargeable to tax amounting to Rs. 22,00,000/-, which is the assessee's own income, has escaped assessment within the meaning of Section 147 of the Act. Since four years have since expired from the end of the relevant assessment year, and no scrutiny assessment was completed in the case of the assessee for the said assessment year, the reasons recorded above for the purpose of reopening of assessment are put up for kind satisfaction of Addl. CIT, Range -15, New Delhi in terms of Section 151 of the Act.”
Accordingly, a notice u/s 148 was issued to assessee and assessment was framed u/s 147/143(3) of the IT Act, 1961 by making addition on account of unexplained credit.
Findings of the case:- The reopening is based entirely by making a reference to the information received from the investigation wing. The reasons are at best vague and the satisfaction of the AO is not based on any tangible material. The AO has mechanically issued notices u/s 148 of the Income Tax Act, 1961 on the basis of information received by him from the investigation wing of the Income Tax Department. The AO has not applied his mind so as to give an independent conclusion that he had reason to believe that income had escaped assessment during the year under consideration. Reliance is
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placed on the judgment of the Hon’ble High Court of Delhi in ITA No. 545/2015 dated 8.10.2015 in the case of Pr. CIT vs. G&G Pharma India Ltd. The reopening is bad in law and thus quashed.
Jodhpur Tribunal Bench in case of M/s Surbhi Minchem Pvt. Ltd. Vs. ITO vide its order dt. 16.05.2014 in ITA No.102 & 103/Jodh/2014 has held that for taking action u/s 147 of the Act, the AO must have reason to believe that an income chargeable to tax has escaped assessment for any assessment year. Therefore, AO must satisfy himself regarding the escapement of income. He should not act mechanically or on the information supplied by any other person. In this case, the AO acted on the information supplied by the Directorate of the Income Tax (Inv.), Udaipur and Mumbai but he has not applied his independent mind and the reassessment proceedings were initiated only on the basis of information received from the investigation wing of the department. It was therefore held that the satisfaction regarding the escapement of income was not of the AO, therefore, without applying his mind, the AO was not justified in invoking the provision of section 147 of the Act by issuing notice u/s 148 of the Act.
Similar view was taken by Jodhpur Tribunal Bench in case of Vinayak Shyam Enterprises Pvt. Ltd. Vs. ITO vide its order dt. 21.05.2014 in ITA No. 104/Jodh/2014 wherein it was held that on receipt of information from DDIT(Inv) the AO has issued notice u/s 148 of the Act. The investigation done in a third party’s case was never confronted to the assessee. The ld. DDIT has even given direction to the AO to issue a notice u/s 148, which the AO has treated as a valid reason for initiating action u/s 147/148. Therefore, the AO has not applied his mind to this information to independently arrive at a belief that on the basis of material before him income had escaped assessment.
CIT vs. SFIL Stock Broking Ltd. (2010) 325 ITR 285 (Del.) (HC) The assessee’s return was processed u/s 143(1). Subsequently, the DDIT (Inv.) informed the AO of the assessee that during the course of investigation, one SG, proprietor of M/s RK had stated on oath that the transactions through certain bank account were only paper transactions in which the party was intending to take bills paid in cash and issue cheques/drafts showing the said amounts as sale of shares. It was further informed that the assessee was neither a share broker nor a member of any stock exchange and that it was doing the work of giving entries. Further, information was given that the entry of Rs. 20.70 lacs in bank account was nothing but entry taken by paying cash. Thereafter on the basis of the aforesaid information, a notice under section 148 was issued by the AO to the assessee, which was allegedly the beneficiary of the bogus claim of long term capital gain shown on sale/purchase of shares. Accordingly, reassessment was completed. On these facts, it was held that
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the first sentence of the so called reasons recorded by the AO was mere information received from DDIT (Inv.). The second sentence was a direction given by the very same DDIT to issue a notice u/s 148 and the third sentence again comprised of a direction given by Add.CIT to initiate proceedings u/s 148 in respect of cases pertaining to the relevant ward. It was clear that the AO referred to the information and the two directions as ‘reasons’ on the basis of which he was proceeding to issue notice u/s 148. These could not be the reasons for proceeding u/s 147/148. From the so called reasons, it was not at all discernible as to whether the AO had applied his mind to the information and independently arrived at a belief that, on the basis of the material which he had before him, income had escaped assessment. Therefore, the reassessment was not valid.
CIT vs. Kamdhenu Steel & Alloys Ltd. &Ors. (2012) 68 DTR 38 (Del) (HC) Where the AO acted mechanically on the information supplied by the Directorate of the IT (Inv.) about the alleged bogus/accommodation entries provided by certain individuals/companies, without applying his own mind, he was not justified in invoking jurisdiction u/s 147.
S.P Agarwalla alias Sukhdeo Prasad AgarwallaVs.ITO 104 ITR 1040 (Kol.)(HC) It is held that mere confessional statement by a third party (who is lender of assessee) that he was a mere name lender and that all his transactions of loan were bogus, without naming the assessee as one who had obtained bogus loans, would not sufficient to hold that the assessee’s income has escaped assessment. Thus, the reopening of assessment in this case is not justified as same was reopened at the instance of other authority.
The decision of Rajat Export Import India Pvt. Ltd. relied by the CIT(A) is not applicable in as much as in that case the AO in the notice issued u/s 148 has given all the details like instrument number, date, name of the bank and the branch as well as account number of entry provider. The High Court at Para 11 of the order held that the material present before the AO at the time of recording reasons for reopening the assessment also disclosed the date on which the entry was taken, the cheque or DD number, the name of the bank and branch & the account number and with such precise material before the AO, the existence of which is beyond challenge, it can hardly be said that the AO could not have a prima facie belief that income chargeable to tax had escaped assessment in the hands of the assessee. But in the assessee’s case the reasons recorded does not provide any such details. Further, the reasons state that the amount is of bogus purchases and thereby assessee suppressed the profit whereas the AO himself has accepted while passing the order that these amounts are not in respect of bogus purchases. Thus, the issue is not of sufficiency or correctness of
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material but it is a case of vague/irrelevant material on which AO proceeded to reopen the assessment.
In view of above, the assessment made by the AO is illegal and bad in law and be quashed.
On the other hand, the ld DR has relied on the orders of the
authorities below.
We have heard both the sides on this issue. We have considered the
case laws relied upon by both the sides. We have also gone through the
reasons recorded by the Assessing Officer for issuing the notice U/s 148 of
the Act on 25/3/2014. It is noticed that the Assessing Officer received
information from DGIT(Inv), Mumbai. The details of the entry provider
company and nature of entry and amount was provided. However, while
recording the reasons, the Assessing Officer has written that the assessee
has obtained entries of bogus purchases. Further in finally recorded the
satisfaction to issue the notice U/s 148 of the Act, the Assessing Officer
has recorded the reasons, which are reproduced hereunder:
“The accommodation entries of bogus sales provided by the above companies constitute bogus purchases in the hands of the assessee. The assessee has suppressed its profits by taking accommodation entries of bogus purchases. Therefore, I have reasons to believe that minimum income of Rs.75,00,000/- has remained escaped to be taxed in terms of section 147 r.w.s. 148 of the I.T. Act for the assessment year under consideration.” Thus the Assessing Officer has categorically recorded in the reasons that
the assessee has suppressed its profits by taking accommodation entries
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of bogus purchases. The intimation from DGIT (Inv), Mumbai was about
the bogus investment/share applications. Thus, the Assessing Officer has
not at all applied his mind while recording the reasons. The facts on record
clearly establishes that the Assessing Officer has not applied his mind so
as to come to a conclusion that he has reason to believe that the income
has escaped assessment for the year under consideration. The reasons
recorded are vague and are not based on any tangible material as well as
on the facts acceptable in the eyes of law. The reasons recorded also
suggest that the Assessing Officer has mechanically issued notice U/s 148
of the Act even not bothering regarding the nature of information received
from the DGIT (Inv), New Delhi. Such vagueness in the reasons recorded
make reopening bad in law and deserved to be quashed. Such view is also
supported by the various decisions of the Hon'ble High Courts and the
Tribunals as stated (supra). Therefore, we quash the reopening of the
assessment.
Since we have quashed the notice issued for reopening assessment
U/s 148 of the Act, therefore, the issues raised in grounds No. 2 and 2.1 of
the appeal become academic only. Hence, the same are not adjudicated.
Grounds No. 3 and 4 of the appeal are general in nature and does
not require any adjudication.
ITA 516/JP/2016_ 13 M/s Merta Oil Mills Company P Ltd. Vs ITO 10. In the result, appeal of the assessee is allowed.
Order pronounced in the open court on 11/05/2018. Sd/- Sd/- ¼fot; iky jko½ ¼Hkkxpan½ (VIJAY PAL RAO) (BHAGCHAND) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 11th May, 2018
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