D.C.I.T CIR - VII,KOLKATA, KOLKATA vs. M/S KANODIA VYAPAAR PVT LTD, KOLKATA

The assessee in the present case is a Company. The investigation carried out by the Department of Income Tax (Investigation), Kolkata revealed that some entities were involved in providing accommodation entries to various companies based in Mumbai, which in turn had used the said funds for payments to Madhipura Mercantile Cooperative Bank at Mumbai, which was controlled by Shri Ketan Parekh. Since the assessee- company was one of such entities, the statement of its Director Shri Suresh Sethi was recorded under section 131 by the DDIT(Investigation), Assessment Year: 2008-2009 M/s. Kanodia Vyapaar Pvt. Limited Kolkata on 09.04.2007. In the said statement given on oath, Shri Suresh Sethi accepted that he had got cash of equivalent amount from the Mumbai based Companies belonging to Shri Ketan Parekh Group and after depositing the said cash into the Bank account of the assessee-company, cheques were issued to the said Companies. He also furnished a list of cheques so issued against cash that had been received by him. Although Shri Suresh Sethi subsequently filed an affidavit retracting his statement, the Assessing Officer did not accept the same on the basis of the enquiries conducted by the Investigation Wing on a test-check basis, which revealed that cash was deposited in various Bank accounts in different stages. According to the Assessing Officer, this factual position substantiated the statement of Shri Suresh Sethi, Director of the assessee- company that cash was indeed received by the assessee-company in lieu of cheques given to various companies belonging to Ketan Parekh Group. He accordingly held that accommodation entries were given by the assessee-company to various Mumbai based companies belonging to Ketan Parekh Group and since the accommodation entries so given during the previous year relevant to A.Y. 2008-09 aggregated to Rs.7,93,36,665/- , he added the commission income @ 2% amounting to Rs.15,86,733/- to the total income of the assessee in the assessment completed for A.Y. 2008-09 under section 143(3) vide an order dated 31.12.2010. In the assessment so made, he also made an addition of Rs.7,93,36,665/- in the hands of the assessee on protective basis observing that the unexplained income to that extent in the form of cash given by the Mumbai based companies was assessable on substantive basis in the hands of the said companies.

Against the order passed by the Assessing Officer under section 143(3) for A.Y. 2008-09, appeal was preferred by the assesee-company before the ld. CIT(Appeals) and after considering the submissions made by the assessee as well as the material available on record, the ld. CIT(Appeals) deleted the addition made by the Assessing Officer to the Assessment Year: 2008-2009 M/s. Kanodia Vyapaar Pvt. Limited total income of the assessee for A.Y. 2008-09 on account of the alleged accommodation entries given to the Mumbai based Companies in the form of commission income at the rate of 2% as well as further addition on account of protective basis for the following reasons given in paragraph no. 8 of his impugned order:- “8. I have perused the relevant orders. I have also considered the submissions made on behalf of the appellant. I find that the issues involved in this appeal are covered by the orders of my learned predecessor in appellant’s own case as well as by those of the Hon’ble Jurisdictional ITAT in similar cases. Respectfully following the decisions, it is to be held that the addition made by the AO on account of unexplained income as well as on that of commission income is neither sustainable in law nor on facts. The addition of Rs.7,93,36,665/- and Rs.15,86,733/- is directed to be deleted. Grounds No. 2, 3 & 4 are allowed. In ground no. 1, the appellant has challenged the legal validity of the assessment order. As the appeal has already been allowed on merit, these legal grounds are not adjudicated. Ground no. 5 is general in nature”.

Aggrieved by the order of the ld. CIT(Appeals) giving relief to the assessee for the year under consideration, the Revenue has preferred this appeal before the Tribunal.

We have heard the arguments of both the sides and also perused the relevant material available on record. The two issues involved in this appeal relate to the deletion by the ld. CIT(Appeals) of the addition made by the Assessing Officer on account of alleged accommodation entries given to the Mumbai based Companies on protective basis and the deletion by the ld. CIT(Appeals) of the addition made by the Assessing Officer on account of commission income allegedly received by the assessee for giving accommodation entries. It is observed that the similar issues were involved in some other cases and all these cases were adjourned in the past and also blocked for some period for getting the information about the status or outcome of the cases where the similar amounts were added on substantive basis. Inspite of sufficient time given to both the parties, they have failed to furnish the said information. It is well settled that protective assessment is permissible in law and in case a Assessment Year: 2008-2009 M/s. Kanodia Vyapaar Pvt. Limited doubt or ambiguity about real entity in whose hands a particular income is to be assessed, the assessing authority is entitled to have recourse to make a protective assessment. As held by the Hon’ble Supreme Court in the case of Lalji Haridas –vs.- ITO (43 ITR 387), the Officer may, when in doubt, to safeguard the interest of the revenue can assess it in more than one hand but this procedure can be permitted only at the stage of assessment. Protective assessment becomes redundant when the substantive assessment becomes final and if the substantive assessment fails, it is protective assessment which is to be treated as substantive. Keeping in view this corollary between the substantive assessment and protective assessment, an appeal against the protective assessment should ordinarily await the outcome of the substantive assessment so that the protective assessment can be inconformity with the substantive assessment. In the case of CIT –vs.- Surendra Gulab Chand Modi (140 ITR 517), the appeal arising out of the protective assessment was disposed of by the appellate authority i.e. Tribunal vacating the protective assessment without waiting for the final outcome of the proceedings arising from the substantive assessment, which matter was pending in the Hon’ble Supreme Court. The Hon’ble Gujarat High Court held that the Tribunal was not justified in proceeding with the matter and in disposing of it instead of blocking it till the disposal of the matter pending in the Hon’ble Supreme Court in order to bring it inconformity with the view of the Hon’ble Supreme Court. The Hon’ble Gujarat High Court accordingly directed the Tribunal to keep the matter alive and pending awaiting the decision of the Hon’ble Supreme Court in the proceedings arising from the substantive assessment.

In the present case, the ld. CIT(Appeals) did not await the outcome of the proceedings arising from the substantive assessment and since the said information was not forthcoming even after a considerable period from the concerned assessing officer, he proceeded to dispose of the appeal arising from the protective assessments by his impugned order Assessment Year: 2008-2009 M/s. Kanodia Vyapaar Pvt. Limited and deleted the addition made on protective basis without awaiting the final outcome of the proceedings arising from the substantive assessment. Keeping in view the decision of the Hon’ble Gujarat High Court in the case of CIT –vs.- Surendra Gulab Chand Modi (supra), we hold that the ld. CIT(Appeals) was not justified in deleting the addition made by the Assessing Officer on protective basis in the year under consideration without awaiting for the final outcome of the proceedings arising from this substantive assessment. We, therefore, set aside the impugned order of the ld. CIT(Appeals) on this issue and remit the matter back to him for keeping it alive and pending till the outcome of the proceedings arising from the substantive assessment.

As regards the issue relating to the addition made on account of commission income allegedly received by the assessee for giving accommodation entries, we find that this issue is consequential to the issue relating to the addition made on protective basis on account of accommodation entries allegedly given by the assessee-company to the Mumbai based companies. Since the said issue is remitted back by us to the ld. CIT(Appeals), we also remit the consequential issue relating to addition on account of commission income back to the ld. CIT(Appeals) for deciding the same afresh. Grounds No. 1 & 2 of the Revenue’s appeals for the year under consideration are accordingly treated as allowed for statistical purposes.

The other issues raised the Revenue in its appeal are general in nature and do not require any adjudication.

In the result, the appeal of the Revenue is treated as allowed for statistical purposes. Order pronounced in the open Court on April 10, 2019. Sd/- Sd/- (S.S. Viswanethra Ravi) (P.M. Jagtap) Judicial Member Vice-President (KZ) Kolkata, the 10th day of April, 2019 Assessment Year: 2008-2009 M/s. Kanodia Vyapaar Pvt. Limited Copies to : (1) Deputy Commissioner of Income Tax, Central Circle-VII, Kolkata, Aayakar Bhawan Poorva, 110, Shanti Pally, Kolkata-700 107

(2) M/s. Kanodia Vyapaar Pvt. Limited, 51, Nalini Seth Road, Kolkata-700 007 (3) Commissioner of Income Tax (Appeals), Central-1, Kolkata,