A.C.I.T.-20(3), MUMBAI vs. MRS. VARSHA P. SHAH, MUMBAI

We have heard counsels for both the parties at length and we have also perused the material placed on record, judgments cited by both the parties as well as the orders passed by revenue Mrs. Varsha P. Shah authorities. From the records, we find that the return of income for the year under consideration was filed by the assessee on 27.09.2011 declaring total income of Rs. 42,00,000/- and thereafter, order u/s 143(3) dated 04.03.2014 was passed determining total income at Rs.46,18,210/-. Subsequently, the AO got information from DGIT (Inv) that ‘unsecured loan’ taken by the assessee from M/s Meridian Gems was bogus and in this respect, Shri Manoj jain in his statement before the Investigation Wing had categorically stated that the ‘loan paid’ to various parties including the assessee are accommodation entries. On getting this information, AO required the assessee to explain as to why the loan received from M/s Meridian Gems should not be treated as ‘non-genuine loan’ as determined by the Investigation wing. In response thereto, the assessee furnished loan confirmation letter, copy of profit and loss account alongwith requisite bank statements in respect of loan availed. Apart from this, assessee also submitted an affidavit of Mr. Manoj Jain, proprietor of Meridian Gems, wherein he stated that the loan advanced to the assessee was genuine and he Mrs. Varsha P. Shah had also received interest from assessee during the year under consideration. We also find that the AO has taken into consideration that the loan entry of Rs. 10 lakhs were taken by the assessee during the AY 2008-09 and for the year under consideration. We also find that the loan of Rs. 50 lakhs had been shown to have been taken regarding which interest has also been paid by the assessee. Although, the assessee had filed the requisite documents as well as reply to the reasons to be recorded, but the AO while considering the statement of Shri Manoj Jain, thereby admitting that loan paid by him to various parties were accommodation entries and thus the same were non-genuine. On the basis of this information, the AO recorded the reasons and issued notice u/s 148 of the I.T. Act, which is at page no. 55 of the paper book. Ld. AR appearing on behalf of the assessee relied upon the orders passed by Ld. CIT(A) and submitted before us that the AO has not mentioned the factual reasons leading him to have reasons to believe that income has escaped assessment. It was further submitted that the nature of information and its details have not been mentioned in the reasons and it was not clear as to 6 Mrs. Varsha P. Shah what is the information received from the Investigation wing and how has it led to the AO to have reasons to believe that income has escaped assessment. It was further submitted that although information has been received by the AO, but what is the content of the information has not beenaffidavited from either the reasons or the assessment order. Therefore, in such circumstances, the assessment could not have been reopened. After having gone through the facts of the present case as well as considering the documents placed on record and orders passed by revenue authorities, we find that although in the present case, the assessment was completed u/s 143(3) of the I.T. Act, but the AO got information from DGIT(Invst.) in respect of unsecured loans taken from M/s Meridian Gems was bogus and the said statement was made by Shri Manoj Jain, the proprietor of M/s Meridian Gems and accordingly on the basis of said statement, the AO confirmed reasons to believe for initiating proceedings for reopening the assessment. Ld. DR had also placed on record copy of order passed by Coordinate Bench of Hon’ble ITAT in the case of Shri Prakash K. Shah in ITA No. 1962/Mum/16 for AY: 2009-10, wherein Mrs. Varsha P. Shah the order of reopening passed by AO was upheld. The operative portion of the order of Hon’ble ITAT contained in para no. 5 to 7, which is reproduced below:- 5. Aggrieved Revenue has come in an appeal before the tribunal. The Ld. DR submitted that the reopening of concluded assessment u/s 147 was justified as the information was received by AO from DGIT (Inv) , Mumbai that the proprietary concern of Sh Manoj Jain namely Meridian Gems who is part of Bhanwarlal Jain Group has only given accommodation entries of bogus unsecured loans and advances to the assessee. Based upon the aforesaid information , the case was reopened by Revenue u/s 147 by issuance of notice dated 30-03- 2014 u/s 148. The Ld. DR submitted that the reopening was done within four years from the end of the A.Y and although notices u/s. 133(6) were issued in the original assessment proceedings by the AO to the said party and confirmations and bank statements has also been filed by the said party Meridian Gems before the AO along with the copy of Income Tax return and audited accounts of the M/s. Meridian Gems during the course of original assessment proceedings u/s 143(3) r.w.s. 143(2), but it is because of the incriminating tangible and material information received from the 8 Mrs. Varsha P. Shah DGIT(Inv),Mumbai wherein it was found that the said concern is part of Bhanwarlal Jain and it is admitted before DGIT(Inv) in statement recorded of the lender that these loans are bogus accommodation entries, that the reopening of concluded assessment u/s 147 was done, and hence reopening of the concluded assessment was justified in view of fresh tangible and incriminating material coming into the possession of Revenue. The Ld. DR relied upon the order of the A.O. passed u/s 143(3) r.w.s. 147 . The learned DR submitted that the Ld. CIT-A has erred in quashing the notice issued u/s. 148 . The Ld. DR rely on decision of Hon’ble High Court of Gujarat in Peass Industrial Engineers P. Ltd v. DCIT (2016) 73 Taxman.com 185(Guj) wherein the reopening based on the information received from investigation wing was held to be valid. The learned DR relied upon the re- assessment order of the AO .It was also submitted by learned DR that reopening has been done by Revenue within four years from the end of assessment year and hence proviso to Section 147 is not applicable. The Ld. Counsel for the assessee on the other hand submitted that the assessee asked for incriminating statement as well cross examination of the lender who have given statement before investigation wing of Revenue but the same was not provided by the A.O to 9 I.T.A. No. 2054/Mum/2016 Mrs. Varsha P. Shah the assessee and cross examination was also asked for which was also not provided by Revenue to the assessee and hence principles of natural justice are vitiated . Our attention was drawn to page no. 37 of the paper book wherein the letter dated 01.10.2014 which is stated to be filed by the assessee with the A.O during the course of reassessment proceedings is placed on record wherein the assessee sought for statement of the lender as well cross examination of the lender from the Revenue. It was submitted that learned CIT-A has only decided legal ground wherein reopening of the concluded assessment u/s 147 was quashed by learned CIT(A). Our attention was also drawn to an affidavit which is placed in paper book/ page no. 39 given by Shri. Manoj Jain , Proprietor of Meridian Gems confirming the transaction of loan granted to the assessee as well interest received from the assessee. The Ld. Counsel for the assessee submitted that if the reopening of the concluded assessment u/s 147 is held to be valid keeping in view factual matrix of the case , then in that case the matter can be set aside to the file of learned CIT-A who can decide the issue on merits after furnishing of the copy of the relied upon incriminating statement and after providing cross examination to the assessee of the lender who have given incriminating statement against the assesse. The learned counsel for the assessee relied upon the 10 I.T.A. No. 2054/Mum/2016 Mrs. Varsha P. Shah decision of Hon’ble Delhi High Court in the case of Principal CIT v. Meenakshi Overseas P. Ltd. (2017) 82 Taxman.com 300(Delhi) wherein in the case where information was received from investigation wing by the AO and the reopening was done by the AO based on such incriminating information without independent application of mind by the AO to establish live link of the tangible material and formation of reasons to believe that income has escaped assessment, the Hon’ble Court has held reopening to be bad in law.

We have considered rival contentions and perused the material on record including cited case laws and orders of the authorities below. We have observed that assessee is carrying on the business of trading in Iron & Steel under the name and style of Nimit Impex . The assessee filed return of income for AY 2009-10 on 21.09.2009 declaring total loss of Rs. 7,62,302/- and Revenue framed assessment u/s. 143(3) vide assessment orders dated 29.12.2011 computing income of Rs.96,11,080/- against the return loss of Rs.7,62,302/- . Subsequently information was received by the A.O from DGIT (Inv), Mumbai that assessee has received unsecured loans of Rs. 70,00,000/- from M/s. Meridian Gems which were bogus as admitted by the lenders before DGIT(Inv.). Mumbai which led to the reopening of concluded assessment u/s 147 wherein Mrs. Varsha P. Shah notice u/s. 148 dated 30.03.2014 was issued by the AO which was duly served on 30.03.2014 . The reopening of the concluded assessment was done by the AO u/s. 147 within four years from the end of the assessment year and hence proviso to Section 147 is not applicable. It is also observed that while framing of the original assessment u/s 143(3) , the A.O issued notices u/s. 133(6) to said M/s. Meridian Gems and the same was duly replied by the said concerns along with bank statement evidencing the grant of loan of Rs. 30,00,000/- during the previous year relevant to the impugned assessment year, confirmation from the lender, Income Tax return as well as audited accounts of M/s. Meridian Gems were duly submitted. It is pertinent to mention here that Rs. 40,00,000/- was received by the assessee from the said lender Meridian Gems in the preceding year. However , tangible and material incriminating information was received by the A.O from the DGIT(Inv) which is based upon statement given by lender before the DGIT(Inv.) , Mumbai that they have provided accommodation entry to the assessee by way of bogus unsecured loans to the tune of Rs.70,00,000/- , out of which Rs. 30,00,000/- were given during the impugned assessment year while Rs. 40,00,000/- was given in the preceding year. Based upon the said incriminating tangible and material information in possession of the revenue, concluded Mrs. Varsha P. Shah assessment of the assessee was reopened by the AO u/s. 147 and the reopening has been done within four years from the end of the assessment year . Since reopening is done within four years from the end of the assessment year , proviso to Section 147 is not applicable. Thus, clearly it is not the case of change of opinion by the AO rather it is based on new incriminating material in possession of the AO that reopening of concluded assessment u/s 147 was initiated . The Revenue has rightly relied upon the decision of Hon’ble Gujarat High Court in the case of Peass Industrial Engineers P. Ltd (supra) because the information that loans are bogus and were merely accommodation entries attract deeming fiction of Section 68 and this new incriminating information has live link with formation of reasons to believe that income has escaped assessment and it cannot be classified as mere change of opinion. It is not necessary at the stage of initiation of proceedings for reopening of concluded assessment u/s 147 that escapement of income is to be proved conclusively by a cogent evidences, while what is required is formation of a belief based on incriminating material in possession of the Revenue that there is prima-facie an escapement of Income. In our considered view , reopening of the concluded assessment u/s 147 was valid in the instant case as the same was based upon 13 Mrs. Varsha P. Shah tangible and material incriminating information received by the A.O that loans granted by Meridian Gems were bogus and were merely accommodation entries wherein the assessee’s own money is circuitously routed through back into its proprietary concern Nimix Impex in the form of unsecured loans from Meridian Impex which prima-facie attracts deeming fiction created by Section 68. The above information received by AO from DGIT(inv.) was in- turn based upon statement of the lenders wherein it is admitted by lenders before investigation wing of Revenue that they have provided bogus accommodation entries by way of loans to the assessee to the tune of Rs. 70,00,000/- . Thus under these circumstances and keeping in view entire factual matrix of the case , it cannot be said that the reopening of concluded assessment u/s 147 was invalid , more-so reopening was done within four years from the end of assessment and proviso to Section 147 is not attracted. Thus , we set aside the appellate order of learned CIT- A wherein learned CIT(A) adjudicated the appeal only on legal grounds of re-opening by holding that that reopening of the concluded assessment by Revenue in the instant case u/s. 147 was not valid while we vide this order holds that reopening of the concluded assessment in the instant case u/s 147 was valid in law . We have observed that learned CIT-A had not 14 I.T.A. No. 2054/Mum/2016 Mrs. Varsha P. Shah adjudicated the issues in appeal on merits. We have also observed that assessee asked for the statement of the lender incriminating assessee and also sought cross examination of said lender who has given the incriminating statement against the assessee, which was denied to the assessee. We have also observed that the said lender Meridian Gems is part of Bhanwarlal Jain group of concerns. We are restoring the matter back to file of learned CIT(A) with directions to adjudicate the appeals on merits . The Revenue is directed to provide to the assessee copy of relied upon incriminating statement as well other incriminating material in its possession on which it intend to rely and also to allow assessee to cross examination the lender who has given incriminating statement against the assessee before prejudicing assessee, if the Revenue wish to rely on the said incriminating statement or any other incriminating material in its possession. Needless to say that the learned CIT(A) has wide powers which are co-terminus with the powers of the AO , inter-alia, including power to direct AO to conduct necessary enquiries, examinations and verifications etc. . Needless also to say that learned CIT(A) shall provide proper and adequate opportunity of being heard to the assessee before adjudicating the issue on merits in accordance with principles of natural justice in accordance with law. The learned Mrs. Varsha P. Shah CIT(A) is directed to admit additional evidences if filed by the assessee in accordance with Rule 46A of Income-tax Rules, 1962 in order to advance substantial justice. We order accordingly. 7. Thus appeal of the revenue is allowed for statistical purposes and matter is restored back to the file of learned CIT-A for fresh adjudication of the issues in this appeal on merits in accordance with our above directions.