DCIT, CIRCLE-2(1)(1), AHMEDABAD, AHMEDABAD vs. NAVNIRMAN CO OP. BANK LTD, AHMEDABAD

4. The Ld.CIT(A), however, deleted the addition by observing that the impugned addition has been made by the AO merely on the basis of information that the assessee has received accommodation entry. The assessee, however, has not been provided any record relating to the alleged receipts so as to enable the assessee to give details of the amount deposited/received. No PAN, no details of depositors and no other information related to the alleged transaction was provided to the assessee. The assessee bank, under the circumstances, was not supposed to prove which was beyond the control of the assessee. The Ld.CIT(A) has thoroughly discussed the facts of the case and held that the impugned additions under the circumstances were not sustainable as the same were made by the AO solely on the basis of suspicion and without bringing on record that the said deposits received by the assessee was accommodation entry or the same was unexplained income of the assessee-bank. The concluding paragraph of the order of the Ld.CIT(A) is reproduced as under:

“ 6. DECISION: I have carefully considered the submissions made by the appellant, the facts on record and the applicable law in this regard.

6.1 Vide Grounds of appeal

No. 1 to 4 and 6 the appellant has challenged the validity and legality of the proceedings u/s 147. It is contended that the Assessing Page 4 of 12. AABFN2975L- NAVNIRMAN CO OP BANK LTD A.Y. 2017-18 ITBA/NFAC/S/250/2024-25/1069123313(1) Officer failed to establish that appellant has understated income or made excessive claim, nor did Ld. AO provide any of the details/documents leading to conclusion that appellant concealed income or made excessive claim. 6.2 In the course of proceedings u/s 250, appellant submitted as under:

1. Appellant submit that reopening of assessment u/s 148 is invalid and void ab initio as it has not followed the provisions and guidelines issued by board and rulings of judiciary.

1.1 Appellant submit that reopening u/s 148 is invalid and void ab initio as assessing officer has not followed the Standard Operating Procedure (SOP) issued by the CBDT with regards to reassessment. The relevant para of the SOP issued by CBDT is reproduced which read as under.

Fourth paragraph- will record details of enquiries made by AO which must have ‘live link’ with the information received/collected by AO. The enquiries may include scrutiny of information available on ITBA portal /other websites, enquiries made from other agencies or through notice u/s 133(6) / summon u/s 131 from assessee/other related parties.

Thereafter, on the basis of above, AO will summarise his findings and will come to ‘basis of reasons to believe’. The AO is expected to draw ‘nexus’ between his findings and reasons to believe.

It appears from the reasons recorded that Ld.AO has not analyzed the material collected and reasons recorded are mechanical and incorrect without applying mind. AO and approving authorities failed to understand the role of banking channel in any transaction. Appellant Bank is beneficiary or only banking channel through which transactions are carried out between two parties. There is no nexus between findings and reason to believe.

Ld. AO failed to analyze and establish live link between information and reasons involving to appellant. The onus is on the AO to establish live link and to establish that appellant is beneficiary of accommodation entry. Bank working under banking, regulation act cannot involve in such accommodation transactions.

It is pertinent to mention here that appellant is a co-op bank having approx. 10000 members and no one’s personal interest is involved in working of bank.

Ld. AO did not provide any information collected except allegation that information provides that appellant is beneficiary of accommodation entry. Appellant submits that it is a bank and engaged only in banking activities and it might have happened that transaction is routed through appellant bank. The information is not properly Page 5 of 12 AABFN2975L- NAVNIRMAN CO OP BANK LTD A.Y. 2017-18 ITBA/NFAC/S/250/2024-25/1069123313(1) scrutinized and so reopening is invalid ab initio.

Appellant submit that various appellate authorities have ruled that reopening is not valid if there is no live link between the information collected and reason recorded.

In the instant case there is no live link between the information and reasons. The information pertains to transaction of accommodation entry between party through banking channel (appellant) and reasons communicated shows that appellant has concealed income.

Appellant rely on the following judgments delivered by honourable Supreme Court and Delhi Tribunal “C” Bench ruling that reopening is not valid if there is no live link between information and reason recorded.

Pr CIT Vs Sheetal Dushaynt Chaturvedi (2022) 285 Taxman 85 Shri Karan Khuran Vs ITO Wd 48(2) ITA No. 1783/Del.2019 Copy of judgments are submitted herewith as appendix- A and B 1.2 Ld. AO has not followed the rulings of the Supreme Court in the case of Union of India vs Ashish Agrawal dated 04.05.2022. In the case Hon'ble Apex Court has directed that the Assessee is to be provided the information and the material relied upon by the Revenue so that the assesse can reply to the said notices. In the case appellant is not provided with any material leading to believe that appellant is beneficiary of the transaction.

Appellant submits that it is a co-op bank and working as banking institute under the license issued by Reserve Bank of India under the banking regulation act. The books of the bank is audited by the statutory auditors, RBI Inspectors and Tax auditors. The bank is obliged to follow instructions and guideline issued by the Reserve Bank of India from time to time. The provisions of section 269SS and 269ST are also applicable to bank and so bank complies with it. The books of the appellant is regularly audited by qualified Chartered Accountants u/s 44AB of the income tax act and tax auditor is obliged to report any violation of the applicable provisions of the income tax act. Id. AO erred in concluding that appellant is a beneficiary in accommodation entry without providing even PAN of the alleged depositors. Ld. AO didn't provide any documents of appellant bank being beneficiary of accommodation entry. Appellant bank is operating in Ahmedabad city and have 14 branches in the city and customers running in thousands. It is assumed that in the accommodation entry cheque is issued by the entry provider and in turn cash is returned to the party. Ld AO failed to establish or provide any documents that cash is returned to bank. Appellant accepts deposits from the public in accordance with the guideline issued by the Reserve Bank of India through account payee cheques or electronic payments in Page 6 of 12 AABFN2975L- NAVNIRMAN CO OP BANK LTD A.Y. 2017-18 ITBA/NFAC/S/250/2024-25/1069123313(1) case of amount exceeding Rs.20,000. Appellant is not concerned with the amount deposited by the customers. Appellant bank has numbers of customers with identical names and in the instant case, bank is not provided PAN of the concern party. Appellant bank could not verify or provide any details for want of perfect details.

A notice u/s 148 was issued on 30.03.2021 and in response to that appellant filed return of income. Later notice u/s 142(1) was issued asking certain information without communicating reasons. Appellant requested Ld. AO vide letter dated 05.01.2022 to provide reason for reopening and necessary material and information leading to reopening. Unfortunately, reasons or no other details was provided.

Ld. AO issued a notice u/s 143(2) dated 22.02.2022 for the first time communicating reasons for reopening of assessment. Appellant bank repeatedly requested Ld. AO vide submission dated 23.02.2022 to provide copy of documents collected from third party, statement recorded and other details leading to believe that appellant is involved in accommodation entry. Ld. AO didn't provide any details and concluded that appellant failed to provide details and justification. A cross Verification of the searched party was sought by the appellant to cross examine but it was never offered and stated in the order that it is not possible. It is settled rulings that if department is utilizing information collected from third party, onus is on department to provide details, cross verification and justify allegation. Ld. AO grossly failed to discharge his burden. Ld. AO failed in his onus and passed order on 31.03.2022 alleging that appellant failed to prove genuineness of the transaction. Reasons were first time communicated on 22.02.2022 and order is passed on 31.03.202 without providing adequate opportunity and materials to appellant to respond.

A copy of notice u/s 143(2) r.w.s 147 dated 22.02.2022 communicating reasons is submitted vide Appendix-C .

A copy of letter dated 05.01.022 and 23.02.2022 addressed to Ld AO requesting to provide information collected and documents leading to reason recorded are submitted vide appendix-D and E.

(i) In the case of Heirs and Legal Representatives of Shri Laxrhanbhai S Patel vs CIT 327 ITR 290 (Guj), the Jurisdictional Gujarat High Court has observed that:

The legal effect of the statement recorded behind the back of the assessee and without furnishing the copy thereof to the assessee or without giving an opportunity of cross-examination, if the addition is made, the same is required to be deleted on the ground of violation of the principles of natural justice. This is clearly stated by the Hon'ble Supreme Court in the case of Kishinchand Chellaram (supra) wherein it is stated that before the Income-tax authorities could rely upon it, they were bound to produce it before the assessee so that the assessee could controvert the statements contained in it by asking for an opportunity to cross examine. Except the statement of Shri Kantilal M. Patel and Shri Rameshbhai, there was no other evidence available with the department. A copy of the statement of Shri Rameshbhai was not given nor was an opportunity of cross- examining the said Shri Rameshbhai given to the assessee"

(Copy of judgment is submitted at Appendix - F)

(ii) Apex Court in the case of Andaman Timber Mart 62 taxman.com 3 (SC) followed by Gujarat High Court in CIT vs Ramanbhai B Patl Tax Appeal Nos 207-08 and 210 of 2008 has held that not affording cross examination of the persons on whose statement reliance is placed for making addition makes the order a "nullity".

(iii) In Ayaaunhan Noorkhan v. State of Maharstra & Ors AIR 2013 SC 58 it is held that:

Not only should the opportunity of cross examination be made available, but it should be one of effective cross examination, so as to meet the requirement of the Page 8 of 12 AABFN2975L- NAVNIRMAN CO OP BANK LTD A.Y. 2017-18 ITBA/NFAC/S/250/2024-25/1069123313(1) principle of natural justice. In the absence of such an opportunity, it cannot be held that the matter has been decided in accordance with law, as cross examination is an integral part and parcel of the principles of natural justice.

(iv) In CIT vs Indrajit singh Suri 215 Taxman 581 Gujrat Hon'ble Gujarat High Court held that addition made on the basis of statement of persons who were not allowed to be cross examined by the assessee could not be sustained. (Copy of judgment is submitted at Appendix - G)

(v) Recently, the jurisdictional Gujarat High Court in the case of Principal CIT vs Ganesh Plantation Ltd 134 taxman.com 149 (Gujarat) vide judgment dated 22.11.2021 has observed as under: " The Commissioner (Appeals) held that the case of the appellant company is squarely covered by the decision of the CBI v. V.C. Shukla 1998 taxmann.com 2155, where loose paper vouchers or pages found and seized from the third party were not considered as the evidence in the case of the appellant company. It further held that following the decision in case of Prarthana Construction (P.) Ltd. v. Dy. CIT [2001] 118 Taxman 112 (Ahd. - Trib.) the ITAT had decided the matter which had been upheld by this Court. Accordingly, addition by way of unexplained cash credit under section 68 of the IT Act was not held justifiable ..."

(Copy of judgment is submitted at Appendix- H)

The High Court also observed the conclusion of Hon'ble ITAT as under:

"The unilateral entries made by Venus Group (an outside party) in their records and admittedly belonging to them cannot, in our view, has any rational basis to crucify a third party and fix tax liability on it. No live link/proximate nexus of alleged dubious transactions between searched person and the assessee has been brought on record. The inquiries made were directionless without quizzing the key persons who needed to be. Nothing of this sort has been done. No acquiescence of receipt of cash by searched person from assessee has been successfully established. Naturally, propriety demanded the cross examination thereon in the event any culpable statement roping the assessee somewhere. The Assessing Officer has conveniently implicated the assessee without any cogent premise on the basis of some aimless examinations.

No doubt, the documents found possessed from the custody of a searched person may possibly operate as an estoppel against that searched person, if the circumstances so warrant, but it is unconceivable to bind a third party for such entries/diary without demonstrating cogent nexus. The whole action is in the realm of conjectures and surmises mainly on the basis of some scanty and sketchy statement Page 9 of 12 AABFN2975L- NAVNIRMAN CO OP BANK LTD A.Y. 2017-18 ITBA/NFAC/S/250/2024-25/1069123313(1) yielded from the searched person. The revenue has alleged assesse is beneficiary of the transactions. Hence, the primary onus in the instant case, squarely lied upon the Revenue and that to justify it with direct or circumstantial evidences.

The onus rested upon the revenue has not been discharged at all and thus did not shift on to assessee. Consequently, in the absence of any credible proof of receipt of benefit from parties to the transaction, the apparent has to be taken as real.

““As per the information received from the credible sources that a search action u/s.132 of the Income-tax Act, 1961 was carried in the case of Jignesh Shah (BBNPS1083E) and Sanjay Shah. During the course of search action various incriminating documents were found and seized from the premises of Shri Jignesh Shah and Sanjay Shah. It is further worth to mention here that, on-going through the information available in Insight Portal, it can be seen that, Investigation Wing, Ahmedabad during the investigation found that both Jignesh Shah and Sanjay Shah are managing and controlling multiple companies and concerns which are not carrying out any genuine business activity. These concerns are involved into activity of providing accommodation entries of various kinds such as unsecured loans, share premium, bogus gains, contrived losses etc. Further, as per Inspector Report, various concerns were found to be non-existent at their addresses.

Moreover, the directors of companies/persons in whose names the said concerns are registered, admitted by way of filing affidavits that the companies/concerns are not carrying out genuine business activities and are engaged into providing accommodation entries through Jignesh Shah and Sanjay Shah.

On perusal of information so received from Investigation Wing, Ahmedabad, it is noticed that the assessee Navnirman Co. Op. Bank Ltd. (AABFN2975L) is one of the Page 10 of 12 AABFN2975L- NAVNIRMAN CO OP BANK LTD A.Y. 2017-18 ITBA/NFAC/S/250/2024-25/1069123313(1) beneficiaries who has availed/obtained accommodation entries to the tune of Rs.2,06,95,025/- under various head from various concerns who has controlled and managed by Jignesh Shah and Sanjay Shah. Failure on the part of the assessee to disclose fully and truly all the material facts necessary for the assessment, the income of the assessee has escaped assessment to the tune of Rs.2,06,95,025/- for the AY 2017-18 within the meaning of Section 147 of the Income-tax Act, 1961. I have, therefore, reason to believe that this is a fit case for reopening the assessment u/s. 147 of the Act and for issue of notice u/s. 148 of the Income-tax Act, 1961.”

6.4 As seen from the above, the reasons recorded state that “on perusal of the information received from the Investigation wing, it is noticed that the assessee Navnirman Co. Op. Bank Ltd. (AABFN2975L) is one of the beneficiaries who has availed/obtained accommodation entries to the tune of Rs.2,06,95,025/- under various head from various concerns who has controlled and managed by Jignesh Shah and Sanjay Shah.” However, there is no further discussion of the said information either in the reasons recorded which were provided to the appellant nor in subsequent communication to the appellant during the scrutiny proceedings, nor in the assessment order u/s 147. There is no specific material whatsoever brought on record that could be said to establish a link between the said material and the appellant’s disclosure of income. There is no discussion of the material that led to the reason to form the reason to believe, whether it was in the form of data in excel sheets seized from the entry operators computer with the appellant’s name recorded as a beneficiary or specific bank transactions or statements recorded in the course of proceedings u/s 132 etc. While it is true that at the stage of forming reason to believe, it is sufficient if the information available with the AO leads to an inference that income has escaped assessment, in order for proceedings u/s 147 to be initiated, as the A.O only needs reason to believe, not a certainty to know that income has escaped, in the present case, the information on record is so vague that it cannot be said to constitute tangible information. In the absence of such specific details, no live link can be said to have been established between the information and the reasons to infer that the appellant’s income had escaped assessment. In view of the above, and the numerous judicial pronouncements on this issue, including those relied on by the appellant, I hold that the re-opening u/s 147 in the absence of any tangible information is invalid and not as per law. As the reopening u/s 147 is held to be invalid, no further discussion is required on the grounds pertaining to the merits of the case. The appellant’s grounds are treated as allowed.”

6. After hearing the rival submissions, we do not find any reason to interfere with the above well-reasoned order of the Ld.CIT(A) and the same is accordingly upheld.