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Income Tax Appellate Tribunal, “B” BENCH, MUMBAI
Before: SHRI M BALA GANESH & SHRI PAVAN KUMAR GADALE
O R D E R PER PAVAN KUMAR GADALE JM: These two appeals are filed by the assessee against the separate orders of the Principal Commissioner of Income Tax-16 (Pr.CIT) Mumbai, passed u/s. 263 of the Income Tax Act, 1961.
Since the issues involved in the appeals are identical and similar, hence they are clubbed, heard and consolidated order is passed.
For the sake of convenience, we shall take-up A.Y 1997-98 as a lead case and & 1619/Mum/2020 Baba Sai Films, Mumbai - 2 - the facts narrated. The assessee has raised the following grounds of appeal:
“1. The Ld. CIT has erred in law and on the facts of the case in reopening / initiating proceedings u/s 263 of the Act, and completing the same u/s 263 of the Act.
The Ld. CIT has erred in law and on the facts of the case in cancelling the assessment order passed by its AO with the direction to pass fresh assessment order after giving assessee the opportunity of being heard as per law.
The appellant craves liberty to add, alter, amend, modify or delete any of the above grounds of appeal at the time of hearing.”
2. The Brief facts of the case are that the assesse is engaged in production of films. The A.O. has received information from DDIT (Inv) Mumbai that one Mr Surendra Khandhar was indulged in providing bogus hawala entries and floated different concerns and the DDIT(Inv) has recorded the statement. Whereas, the assessee firm had obtained the unsecured loans from the two partnership firms related to Mr surrender khandhar. The A.O. has dealt on the statement recorded and found that the assesse is a beneficiary of loans from two concerns (i) M/s.Kapilesh Corporation Rs. 10 lakhs and (ii) M/s. Ray Engineering Rs. 10 lakhs. Since the assessee has not filed the return of income, the A.O. has issued notice u/s 148 of the Act. In compliance to the notice, & 1619/Mum/2020 Baba Sai Films, Mumbai - 3 - the assessee has filed the return of income declaring Rs.Nil income on 22.04.2004.Further, the notice u/s 143(2) of the Act was issued. In compliance, the Ld.A.R of the Assessee appeared and filed the explanations. The assessee also made an application u/s 144A of the Act to the Addl C.I.T and the directions were obtained. The A.O. to verify the identity, creditworthiness and genuineness has sent a letter dt 24.03.2005 to the assessee. The Assessee instead of complying with the directions in the order u/s 144A of the Act has not produced the party for verification or confirmations. Since, there was no proper compliance, the A.O. considering the statement of oath provided by the lender of the loan made presumptions of introduction of cash under the garb of accommodation loan and made addition of loans as unexplained cash credit u/s 68 of the Act and assessed the total income of Rs. 20,31,250/- and passed the order u/s 143(3) and 147 and 144A of the Act dated 31.03.2005. On appeal before the CIT(A), the CIT(A) has confirmed the action of the A.O. On, Further appeal with the Hon’ble Tribunal. The Co-ordinate bench of tribunal in & 2942/Mum/2006 dated 30.10.2006 has restored the disputed issue to the file the A.O. for providing opportunity to cross examine Mr. Surendra Khandhar and the A.O has to decide the issue after & 1619/Mum/2020 Baba Sai Films, Mumbai - 4 - providing opportunity of cross examination to the assessee.
3. The A.O. as per the directions of the Hon’ble Tribunal has issued the letter and summons u/s 131 of the Act to Mr. Surendra Khandhar for cross examination, but there was no response. Further the Assessing officer deputed the inspector and the report was obtained. Since there was no response to the summons issued to the lender and the assessee could not produce the confirmation or the lender, the A.O found that there is no fresh information is received and the assessee is not in a position to furnish the loan confirmation as a primary evidence of establishment of loan. The A.O. relied on the facts mentioned in original assessment order dated 31.03.2005 and observed that there is no change in the circumstances and no new material information is filed. Finally made addition of Rs.20,31,250/- and passed order u/s 143(3) r.w.s 254 dated 20.12.2007.Aggrived by the order, the assessee has filed an appeal to CIT(A) and the appellate authority has confirmed the addition and dismissed the assessee appeal.
On further appeal before the Hon’ble Tribunal, the co-ordinate of Tribunal in & 6271/Mum/2008, 11.09.2009 (second round of litigation) & 1619/Mum/2020 Baba Sai Films, Mumbai - 5 - has observed at page 3 Para 5.1 of the order and restored the matter to the file of the A.O.:
“5.1 However, on merit, we are of the considered view that the matter needs re-verification at the end of the AO as the case has not been examined properly on merit. If the statement of a third party ignored then in that case, onus lay upon the assessee to prove the transaction by adducing necessary confirmation and evidences. No such efforts were made by the assessee to obtain the confirmation from the respective parties. Neither the department has tried to verify from the Income Tax Department, in spite of furnishing PAN etc., of the respective parties, as stated by the Ld. Counsel of the assessee. Therefore, we are of the considered view that to meet the end of justice, the matter should go back to the file of the AO in respect to all these appeals to examine the issue afresh on merit and after affording reasonable opportunity to the assessee to file necessary details in respect of respective loans taken by the assessee. Accordingly, we set aside the order of the lower authorities and restore the matter to the file of the AO to pass a fresh order as per our above observation.”
Subsequently, the A.O as per the directions of the Hon’ble Tribunal has dealt on the disputed issue. The A.O. has issued notice u/s 143(2) and 142(1) of the Act, in compliance the Ld.AR appeared from time to time and the case was discussed. The A.O. has issued summons u/s 131 of the Act to Mr Surendra Khandhar for cross examination but there was no response and compliance. Whereas, the Ld.AR has filed the written submissions on 01.12.2010 dealt at page 2 Para 2 of the order as under: & 1619/Mum/2020 Baba Sai Films, Mumbai - 6 -
“The assessee firm had borrowed money on Hundi from various firms during the year. The various Hundi papers submitted to your goodself at the time of the last hearing contains the name and address of the assessee, amount borrowed and the PAN No of the borrower firm. Thus the assessee firm has discharged the onus of the genuineness of the loan. It is for the department to verify the above and do the needful. Further, the additions made is on account of the statement of Shri Surendra Khandhar who is a witness of the Department. The assessee firm reserves the right to cross-examine shri Surendra Khandhar to know the truth behind the allegation by the income tax department that the loans are accommodated entries.”
Whereas the A.O. has considered the submissions and relied on the findings of the CIT(A) in the earlier round of litigation. Finally the A.O. has observed that there is no change in facts and circumstances and there is no other alternative except making addition u/s 68 of the act of Rs. 20,31,250/-and passed the order u/s 143(3) r.w.s 254 of the Act dated 31.12.2010.Aggrived by the order, the assessee has filed an appeal to CIT(A) and the appellate authority has confirmed the addition and dismissed the assessee appeal.
Aggrieved by the CIT(A) order, the assessee has filed an appeal with the Tribunal. The Hon’ble Tribunal in dated 29.07.2016 has considered the various facts, and submissions found that & 1619/Mum/2020 Baba Sai Films, Mumbai - 7 - in the similar circumstances, of sister concern in in the case of M/s Dilsa Distributors Combine Vs. ITO. dated 20.04.2016 has observed at page 11 to 16 Para 12 of the order as under:
“Similar situation arose in the appeal in in the case of Dilsa Distributors Combine v. ITO whereby Tribunal vide orders dated 20- 04-2016 (whereby one of us i.e. Accountant Member was author of the said order of the Tribunal) wherein Tribunal held as under :
“9. We have considered the rival submission and perused the material available on record. We have observed that the assessee has raised loans of Rs.45,50,000/- from various parties during the instant assessment year 1998-99 under appeal and one Shri Surendra Khandhar has given statement u/s 131 of the Act against the assessee that he has floated various firms to give accommodation loan entries to various persons which also included the assessee . The said statement of Sh.Surender Khandhar was recorded by the Revenue at the back of the assessee. The said Shri Surendra Khandhar has not been subjected to cross examination by the assessee and hence the statement of Shri Surendra Khandhar cannot be used against the assessee until and unless the cross examination of the said Shri Surendra Khandhar by the assessee takes place. We find that the Tribunal in the first round of litigation, set aside the matter to the file of A.O. with a direction to reverify the loan transactions as per provisions of the Act after affording opportunity to the assessee, the Tribunal also holding that since Sh Surender Khandhar could not be offered for cross examination by the assessee , his statement cannot be used against the assessee. The said Shri Surendra Khandhar did not appear before the Revenue also. The A.O. also failed to make verification and enquiries on merits with respect to the loan raised by the assessee. The assessee, on the other hand, produced the copies of promissory note/hundi as loan confirmations. In the & 1619/Mum/2020 Baba Sai Films, Mumbai - 8 - immediately preceding assessment year 1997-98, the Tribunal in the second round of litigation deleted the addition with a direction to the A.O. to verify the contentions of the assessee regarding repayment of loan in for assessment year 1997-98 vide orders dated 6th September, 2013, the said directions of the Tribunal are reproduced below:-
“We have considered the rival submissions and carefully perused the relevant material on record. In the earlier round of litigation this Tribunal has remanded the matter to the record of the Assessing Officer vide order dated 11-9-2009 in para 5 and 5.1 as under:-
“5. We have "heard the rival submissions and considered them carefully. As mentioned above, the assessments were completed originally which were set aside by the Tribunal with a direction to allow cross examination of one Shri Khandhar on whose statement basis, the additions were made in the hands of the assessee. Shir Khandhar could not be traced out in spite of best efforts made by the AO; therefore, cross examination could not be allowed. It is well settled law that without confronting the statement of witness or allowing cross examination, no adverse inference can be made against a person, against which statement of a third party is used. Since cross examination could not be allowed; therefore, we hold that the statement of Shri Khandhar cannot be used against the assessee.
5.1 However, on merit, we are of the considered view that the matter needs re-verification at the end of the AO as the case has not been examined properly on merit. If the statement of a third party ignored then in that case, onus lay upon the assessee to prove the transaction by adducing necessary confirmation and evidences. No such efforts were made by the assessee to obtain the confirmation from the respective parties. Neither the department has tried to verify from the Income Tax department, inspite of furnishing PAN etc., of the respective parties, as stated by the ld. Counsel of the & 1619/Mum/2020 Baba Sai Films, Mumbai - 9 - assessee. Therefore, we are of the considered view that to meet the end of justice, the matter should go back to the file of the AO in respect to all these appeals to examine the issue afresh on merit and after affording reasonable opportunity to the assessee to file necessary details in respect of respective loans taken by the assessee. Accordingly, we set aside the orders of the lower authorities and restore the matter to the file of the AO to pass a fresh order as per our above observations.
It is clear from the order of this Tribunal that the addition made on the basis of the statement of Mr. Surendra Khandhar without giving an opportunity of cross-examination was held to be not proper and accordingly it was observed that the statement of Mr. Surendra Khandhar cannot be used against the assessee: The AO was directed to decide the issue on merits after affording an opportunity to the assessee to file necessary details in respect of respective loans taken by the assessee. We note that in the assessment order passed in pursuant to the directions of this Tribunal, the AO has repeated the addition in para 10-12 as under:
"10. In view of the above, it can be seen that there is no change in the facts and circumstances of the case. Under the circumstances, there is no alternative than to pass the order with the materials available on record. The details and facts of the case are elaborately discussed in the original order passed on 31.3.2005 by the erstwhile Assessing Officer. Hence they are not repeated here again.
I do not find that the submission made by the authorised representative has any materials to serve his purpose. Considering the statement on oath provided by the lender of the loan; there is no iota of doubt that the assessee has introduced his undisclosed cash under the garb of accommodation loan. In the circumstances, the loan so received are unexplained cash credit u/s 68 of the I. T. Act 1961 and same are brought to tax. Accordingly, a sum of Rs. 55,25,000/- is assessed as undisclosed income of the & 1619/Mum/2020 Baba Sai Films, Mumbai - 10 -
assessee for the year. Penalty proceedings u/s 271(1)(c) of the I.T. Act, 1961 are initiated separately."
Subject to the above remarks, the total income of the assessee is computed as under:-
Business income
Income as per order dtd. 31.3.2005 Rs.2,35,505 Add: Disallowance of loan as per order Rs.30,00,000 Dtd. 31.3.2005 Interest on loan Rs.25,25,000
Total income Rs. 57,60,505 Rounded off Rs.57,60,510 It is clear that the AO has not taken pain to examine the issue on merits on the basis of the details to be filed by the assessee as directed by the Tribunal. Now before us the assessee has claimed that the loans have been repaid therefore, the claim of the assessee based on the record showing the repayment of loan is required to be verified. If the claim of the assessee that loans have already been repaid is found correct then the addition u/s 68 is not sustainable and liable to be deleted. Therefore in the interest of justice we set aside this issue for limited purpose of verification of the fact and the record filed by the assessee to show that the loans in question have been repaid by the assessee. The AO to decide the issue in terms of our observation.”
In the result, the appeal of the assessee is allowed for statistical purposes.”
Accordingly, the A.O. vide order dated 31-3-2015 in compliance to the directions of the Tribunal in second round of litigation, deleted the additions so made for assessment year 1997-98 after verifying that the loans have been duly repaid by the assessee vide orders dated 31-03- 2015 (copy placed in the file). The assessee has claimed that the loans raised during the instant year under appeal have also been repaid and claim of the assessee based on records showing the & 1619/Mum/2020 Baba Sai Films, Mumbai - 11 - repayment of the loan is required to be verified. In the instant case, the issue and grounds are identical and in the interest of justice, respectfully following the order of the co-ordinate Bench of this Tribunal in vide orders dated 06-09-2013, the issue is set aside to the file of A.O. on the similar lines as was done by the Tribunal in the immediately preceding assessment year 1997-98 , for the limited purpose of verification by the AO of the fact and the record filed by the assessee to show that the loans in question raised during the instant assessment year of Rs.45,50,000/- have been repaid by the assessee. The AO to decide the issue in terms of our above observations .With respect to additions made on account of interest of Rs.4,00,000/- on these loans, we find that the AO has made additions based on notional interest being paid/payable by the assessee on these loans, we did not find any basis/justification for the same as per the facts emanating from the records. This issue is also set-aside to the file of the AO to be decided based on merits after bringing on record cogent material/basis for the said interest to be brought to tax as income of the assessee. Needless to say proper and adequate opportunity of being heard shall be provided by the AO to the assessee in accordance with principles of natural justice in accordance with law and the assessee shall be allowed to produce evidences/explanations in its defense which shall be admitted and considered by the AO on merits. We order accordingly.
In the result, appeal of the assessee in for the assessment year 1998-99 is treated as allowed for statistical purpose.”
Our decision in the instant appeal in is in line with the decision of the Tribunal in the case of Dilsa Distributors Combine(supra) in ITA no. 7007/Mum/2011 wherein the facts were identical.
11. Our above decision in shall apply mutatis mutandis to the assessee’s appeal in ITA No. 5851/Mum/2011 wherein the facts are identical.
& 1619/Mum/2020 Baba Sai Films, Mumbai - 12 -
12. In the result, both the appeals filed by the assessee in ITA N0. 5850/Mum/2011 for the assessment year 1997-98 and for the assessment year 1998-99 are allowed for statistical purposes.” 7. The A.O considering the directions and decision of the Hon’ble ITAT in ITA No. 5850/Mum/2011 dated 29.07.2016 to verify the repayment made by the assessee to the loan creditors. The assessee was served with the notice u/s 142(1) of the Act and in compliance, one of the partner of the assessee firm appeared and filed the letter dated 25.04.2017. The A.O in the assessment order observed that the unsecured loan has been squared off towards the investments with the creditors. The A.O. finds that the assessee firm has discharged the liability of loans by transferring shares in under production film ‘’Maseeha’’ under the banner of M/s Baba Sai Films (assessee) and confirmed that it will give 25% share of profit to the loanees and the assessee also produced the copy of promissory note discharged by the above parties. Finally, the A.O taking into consideration all the facts, circumstances, directions and the squaring of loan and confirmation observed that there is no addition to be called for and assessed the total income of Rs. Nil and passed the order u/s 143(3) r.w.s 254 of the Act dated 30.06.2017.
& 1619/Mum/2020 Baba Sai Films, Mumbai - 13 -
Subsequently, the Pr.CIT has issued show cause notice u/s 263 of the Act dated 16.01.2020 and observed that the A.O has not carried out the independent enquiries or verification and examination of the loan creditors and also fail to verify the fact of repayment of loans were made through account payee cheques. The ITAT directions was only if the repayment is made by the account payee cheques and no addition will be made. Therefore, the Pr. CIT observed that the order is erroneous and prejudicial to the interest of the revenue. The assessee in compliance to the notice u/s 263 of the Act has filed the reply on 06.02.2020 explaining the detailed facts and the reasons on the squaring of loan towards the investments. The Pr.CIT was not satisfied with explanations and relied on the A.O. report on the assesse’s explanations endorsed by the Range head and passed order u/s 263 of the Act on 04.03.2020. Aggrieved by the order, the assessee has filed an appeal before the Honble Tribunal.
9. The Ld.AR submitted that this is a fourth round of litigation. In the assessee firm, one of the senior partner Shri Vallabh Dasi Ramani ,who was handling the financial matters with the creditors has expired on 03.05.1999 and therefore the disputed financial issues could not be settled. The assessee firm was passing & 1619/Mum/2020 Baba Sai Films, Mumbai - 14 - through the liquidity crunch and the only asset with the assessee firm is the under production of film ‘’Maseeha’’. Therefore the loans obtained earlier could not be repaid for long time due to the financial crises. Subsequently, it was mutually agreed that the loan creditors are converting the loans into investments and the letter was filed on 22.05.2001. The Ld. AR contentions are that in similar circumstances the Hon’ble Tribunal in assessee sister concern in the case of M/s Dilsa Distributors Comines (supra) has dealt on the issue and has issued specific directions and the same are applicable to the assessee firm. Therefore, The Hon’ble Tribunal in & 5851/Mum/2011 dated 29.07.2016 has made certain observations in respect of repayment of loans.
10. The Ld. AR mentioned that before the Pr.CIT the assesse has given complete disclosure of the facts and filed possible explanations. The Ld. AR also expressed the deep concern that the assessee firm is in the litigation before the Hon’ble Tribunal for the fourth time and the A.O as per the directions has passed the reasoned order. The Pr.CIT has not pointed out any specific error in the A.O. order and emphasized only on the status of repayment of loan by account payee cheques. The Ld.AR submitted that the partner of the assesse firm has attended the revision proceedings and filed detailed & 1619/Mum/2020 Baba Sai Films, Mumbai - 15 - explanations on 6-02-2020 & 13-02-2020. The Ld. AR emphasized that on the issue of the directions of the Hon’ble Tribunal on mode of repayment of loan and returned by account payee cheque. The assessee sought some time to file the miscellaneous petition but due to lapse of time limit prescribed under sec 254 of the Act for filling the miscellaneous petition the assessee has deferred the filling. Further the Order passed by the A.O does not satisfy the twin conditions that the order is erroneous and prejudicial to the interest of the revenue. Further the Pr.CIT in his order has not pointed out specific error and the A.O. Considering the facts, circumstances, record of long drawn litigation, submissions of the assessee took a possible and reasonable view and prayed for allowing the assessee appeal.
11. Contra, the ld.DR submitted that the Pr. CIT has considered all these aspects and only set aside the order of the A.O. The A.O has not considered the directions as per the report submitted and endorsed by the range head and supported the order of the Pr.CIT.
We heard the rival submissions and perused the material available on record. We found that the assessee firm has fought a long litigation before the Honorable & 1619/Mum/2020 Baba Sai Films, Mumbai - 16 - Tribunal up to the year 2016 being the three rounds of litigation. The Co-ordinate bench of tribunal in 2011 dated 29-07-2016 has restored the disputed issue with the directions to the A.O and allowed the assesses appeal for statistical purpose. The Ld. AR contentions are that the main partner of the assessee firm, who was looking after the creditors payments and unsecured loans has expired. Due to which the assessee firm was in financial crisis and was not in a position to repay the loans. Subsequently, because of mutual understanding between the loan creditors on certain terms and conditions the loan amount was treated as investments of the creditors with profit sharing. The A.O. in order dated 30.06.2017 passed u/sec143(3) r.w,s 254 of the Act has relied on the submissions. We find the main crux of the issue that, the Pr.CIT is of the opinion that the A.O. order is erroneous and prejudicial to the interest of the revenue and was set aside for fresh adjudication. On perusal of the Pr.CIT order we found that the Pr. CIT has only verified the facts of loan and the assessee firm is in the litigation before the Hon’ble Tribunal for the third time and the Pr.CIT has not pointed out any specific error in the A.O. order and emphasized only on the status of repayment of loan by account payee cheques and has relied on the observations of the A.O. & 1619/Mum/2020 Baba Sai Films, Mumbai - 17 - duly endorsed by the Range Head at page 4 of the Revision order as under:
“The details submitted have been examined properly. The A.O has rebutted assessee’s explanation which duly endorsed by the Range head, which is as under:
“………. The A.O has submitted in his report that it is clear that the assessee has not repaid the money to the loan creditor as the production of the movie Maseeha was suspended and the contention of the assessee that the loans of Rs. 20 lakhs were squared off by converting into an investment seems to be incorrect. Further, the AO Stated that the assessee has requested to defer the proceedings u/s 263 for some time as the assessee is intending to file a Miscellaneous Petition before the ITAT to amend their order as the assessee had never pleaded before the ITAT that the loans taken had been returned by Account payee cheques. The assessee has not provided any information for filing of MA before the Hon’ble ITAT till date……….”
The Bench required the Ld.AR to clarify the issue of filing Miscellaneous petition. The Ld.AR submitted that the assessee wanted to file a miscellaneous application but due to lapse of time allowed u/sec254(2) of the Act, the assessee could not file the miscellaneous application within the time and is not a wanton act. The assessee has squared off the loan amount with the mutual consent of creditors. The Ld.AR referred to the orders of the Hon’ble Tribunal in the case of assesse’s sister concern M/s Dilsa Distributors combine (supra) where the Hon’ble & 1619/Mum/2020 Baba Sai Films, Mumbai - 18 - Tribunal has made observations regarding the repayment of loan and the same was followed in assesse’s own case in ITAno5850&5851/M/2011 dated 29.7.2016 which is not disputed.
We find that the Ld. AR contentions are realistic and the assessee has resolved the issue by mutual understanding and compromise with the loan creditors towards the investments and there is no fresh information available before the A.O except the directions of the Hon’ble Tribunal. The A.O. has made efforts as his predecessors have undertaken on the disputed issue and in the present situation he could not change the circumstances. Therefore, we are convinced that the A.O has taken one of the possible view in the assessment order. Further, a query was raised to the Ld.DR, whether revenue has challenged the ITAT order 29-07-2016 before the Hon’ble High court it was clarified that no appeal has been filed. We on perusal of the Pr. CIT order find that the Pr. CIT could not find any specific error in the A.O. order but only relied on the ITAT directions on repayment of loan. We find that the Ld. AR has answered the query on the Miscellaneous Petition against the ITAT order dt 29-07-2016 and the same could not be filed due to lapse of time u/s 254(2) of the Act. We find the Ld AR submissions on the issue of outstanding loans squared & 1619/Mum/2020 Baba Sai Films, Mumbai - 19 - off as investments in production of film with the mutual consent of the creditors considered as holistic view. Further the Pr. CIT should specifically point out the error in the order passed by the A.O. which is erroneous and prejudicial to the interest of the revenue. We find that there is no enquiry which was conducted by the Pr.CIT except relying on the A.O. submissions endorsed by the range head. We also observe that the assessee has fought the litigation for the fourth time in the present case before this Hon’ble Tribunal. We find the A.O as per the directions of the Honorable Tribunal in order dated 29.07.2016 has taken a possible view considering the litigation for a period of more than 20 years. We are convinced that the order passed by the A.O are on facts, circumstances, possible and reasonable views. We find the action of the Pr. CIT revising the A.O. order with out conducting of enquiry is not tenable. Accordingly we set aside the order of the Pr. CIT and allow the grounds of appeal in favour of the assessee.
ITA No. 1619/Mum/2020, A.Y 1998-99.
As the facts and circumstances in this appeal are identical to forA.Y.1997-98, the decision rendered in above paragraphs would apply mutatis mutandis for this case also. & 1619/Mum/2020 Baba Sai Films, Mumbai - 20 - Accordingly, the order passed u/sec263 of the Act is set-aside and allow the grounds of appeal of the assessee.
In the result, both the appeals filed by the assessee are allowed..