D.C.I.T CIR - VII,KOLKATA, KOLKATA vs. M/S NILHAT PROMOTERS & FISCAL PVT LTD, KOLKATA

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH “A”, KOLKATA BEFORE SH. P.M.JAGTAP, VICE PRESIDENT & SH.S.S.VISWANETHRA RAVI, JUDICIAL MEMBER & 1192/Kol/2013 (ASSESSMENT YEAR-2008-09 & 2007-08) vs M/s. Nilhat Promoters & DCIT, Central Circle-VII, Fiscal Pvt.Ltd., Aayakar Bhawan, Poorva, 205, Rabindra Sarani, 110, Shantipally, Kolkata-700107. Kolkata-700107. PAN-AABCN5606K (Appellant) (Resondent) Appellant by Sh.A.K.Nayak, CIT DR Respondent by Sh.Brijesh Kumar Singh, Adv. Date of Hearing 28.03.2019 Date of Pronouncement 28.03.2019 ORDER PER S.S. VISWANETHRA RAVI, JUDICIAL MEMBER Both these appeals filed by the Revenue against the order dated 31.02.2013 & 25.02.2013 passed by CIT(A)-1, Kolkata for AY 2008-09 & 2007-08 respectively. First we take up ITA No.772/Kol/2013. (ASSESSMENT YEAR-2008-09)

2. “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 & 1192/Kol/2013 (ASSESSMENT YEAR-2008-09 & 2007-08)

providing accommodation entries to various companies based in Mumbai, which in turn had used the said funds f or 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 Pramod Sharma was recorded under section 131 by the DDIT(Investigation), Kolkata on 15.12.2006. In the said statement given on oath, Shri Pramod Sharma 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 Pramod Sharma 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 f actual position substantiated the statement of Shri Pramod Sharma, 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. 2007-08 aggregated to Rs.23,48,45,847/-, he added the commission income @ 2% amounting to Rs.46,96,907/- to the total income of the assessee in the assessment completed for A.Y. 2007-08 under section 143(3) vide an order dated 29.12.2009. In the assessment so made, he also made an addition of Rs.23,48,45,847/- 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. The Assessing Officer also reopened the assessments for A.Ys. 2005-06 and 2006-07 and in the assessments made under section 143(3)/147 vide orders dated 31.12.2008, he made similar addition on account of commission income at the rate of 2% amounting to Rs.83,74,760/- and Rs.37,43,840/- to the total income of the assessee for A.Y. 2005-06 and 2007-08 respectively. He also made additions of Rs.41,87,38,000/- and Rs.18,71,92,000/- similarly on protective basis in the assessments completed under section 143(3)/147 for A.Ys. 2005-06 and 2006-07 respectively for the total amount of accommodation entries provided by the assessee-company to the Mumbai based Companies belonging to Ketan Parekh Group observing that unexplained income to that extent was liable to be assessed on substantive basis in the hands of the said companies for the cash given to the assessee-company. The Assessing Officer made further additions of Rs.3,06,62,000/- and Rs.32,85,000/- to the total income of the assessee for A.Y. 2005-06 and 2006-07 respectively on account of unexplained cash deposits found to be made in the Bank accounts of the assessee.

assessee as well as the material available on record, the ld. CIT(Appeals) deleted the addition made by the Assessing Officer to the total income of the assessee f or A.Y. 2005-06 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. 6 of his impugned order:- “6. I have perused the relevant orders and considered the material placed on record. I find from the appeal folder that in course of the appellate proceedings, my learned predecessor tried to ascertain about the cases where substantive additions were made corresponding to the protective addition in the present case; and also, about the fate of the appeals in those cases. The Ld CIT(A) called for the report vide his letter dated 23-07-2009 which was f ollowed by reminders dated 17-08-2010, 13- 07-2011, 30-10-2013 and 19-11-2013. However, though a substantial period of 4 & 1/2 years has elapsed, nothing has been heard in this regard from the AO. In this factual background; given the facts of the case and the findings of the AO in his assessment order;' and also, the decisions of the Hon'ble Benches of the jurisdictional ITAT in similar cases involving identical f acts and circumstances, the present appeals now being decided on the basis of the material available on record. I find that the AO has made the additions on the basis of the admission made by the director before the DDIT(Inv) which was later retracted. It is a settled legal proposition that a mere admission which is later retracted and which is not corroborated or supported by any independent material cannot be made the basis .for' addition. Once the admission made by the director was retracted, the onus was on the AO to bring positive material on record which could· corroborate or support the admission. But, in the present case, no such material has been brought on record by the AO. On the contrary, the AO has simply rejected the retraction without assigning any reason. The AO has not even discussed in his assessment order as to why the retraction made-by the director through a sworn affidavit was not acceptable to him. Moreover, the AO has brought on record no independent material which could possibly corroborate or support the admission made earlier by the director of the assessee company. In this factual background, I am of the considered view that the AO has erred in law as well as on facts in resting his assessment on the admission of the director which was later retracted and which was not corroborated or supported by any independent material on record. I also find from the assessment order that the addition on account of unexplained cash was made by the AO on protective basis. The AO has himself given the finding in his assessment order that the assessee company had issued cheques by taking equal amount of cash from various companies; and that, such cash was assessable as unexplained income in the hands of those companies. The Page | 3 & 1192/Kol/2013 (ASSESSMENT YEAR-2008-09 & 2007-08)

AO has then added the same cash on protective basis as unexplained income of the assessee company without assigning any concrete reasons. I find no basis or justification for the AO to consider on protective basis such cash as unexplained income of the assessee company which he himself held was assessable as unexplained income in the hands of the various companies who had allegedly purchased accommodation entries. The addition on protective basis on account of unexplained cash by the AO contradicts his o wn f indings that such cash was assessable as unexplained income in the 'hands of the various companies who had allegedly purchased accommodation entries. Above all, identical additions made by the AO in similar cases were deleted by my learned predecessor as well as by the Hon'ble Benches of the jurisdictional ITAT. In other words, similar additions based on the admission of the director of the company which was later retracted was deleted by the jurisdictional ITAT in the assessment of such company. In these cases, the director of the company made admission regarding providing accommodation entry in lieu of cash which was later retracted. Though the AO made similar additions on account of unexplained cash and commission income in the case of the company, the same was deleted by the Ld CIT(A) as well as by the jurisdictional ITAT. The issues in the present appeal are thus covered by the orders of the Hon'ble Benches of the .jurisdictional ITAT wherein similar additions, made under identical f acts and circumstances, were deleted. Respectfully following the decisions of the jurisdictional ITAT, it is to be held that the additions made by the AO on account of unexplained cash and commission income is neither sustainable in law nor on facts. The additions of Rs.41,87,38,000/- and Rs.83,74,760/- is directed to be deleted. Ground no 2 & 3 are allowed”. For almost identical reasons as given in his impugned order f or A.Y. 2005-06, the ld. CIT(Appeals) also deleted the similar additions made by the Assessing Officer to the total income of the assessee for A.Y. 2006-07 and 2007-08 on account of the alleged accommodation entries given to the Mumbai based Companies in the f orm of commission income and further addition on account of protective basis.

from the bank account (which was verifiable from the bank statement) and the sale proceeds of shares (which was duly supported by sales invoices). The AO has admitted in his remand reports that the cash deposits in the bank account were verifiable f rom the cash book which was produced before him in course of the remand proceedings. The AO has f urther admitted that the sale proceeds of shares reflected in the cash book are duly supported by sales invoices which were also produced bef ore him. The AO has found no defect in the cash book of the assessee company. The AO has not pointed out any receipts recorded in the cash book whose source was hot explained. .The remand reports of the AO contain no adverse finding or remark about the cash book. In this factual background, the only conclusion that can possibly be drawn is that the cash deposits in the bank account are explained with reference to the cash book of the assessee company. The AO has noted in his remand reports that apart from the bank statement, cash 'book and the sales invoices, the assessee could produce no other evidence f or verif ication. But then, it has not been clarified by the AO as to what more evidence he required the assessee to produce f or verif ication. The AO has observed that the transactions in shares were made in cash. But then, the sales invoices alongwith the PAN of the buyers was produced bef ore the AO in course of the remand proceedings and the remand reports contain no adverse findings in this regard. I therefore agree with the Ld AR that there is no adverse finding in the remand reports of the AO. The AO has categorically admitted that the bank statement, cash book and sales invoices were produced before him and that the cash deposits in the bank account were verifiable from the cash book. I am therefore of the considered view that such cash deposits in the bank account which were duly verifiable from the cash book of the assessee company could not be treated as its undisclosed income. The addition of Rs.3,06,62,000/- is deleted. Ground no 4 is allowed. Ground no 5 is directed against the initiation of penalty proceedings u/s.271(1)(c) which is premature for adjudication at this stage. Hence, ground no 5 is dismissed. Ground no 6 is general in nature”. For almost identical reasons as given in his impugned order f or A.Y. 2005-06, the ld. CIT(Appeals) also held that the similar addition made by the Assessing Officer on account of unexplained cash deposits found to be made in the Bank accounts of the assessee f or A.Y. 2006-07 was not sustainable. Accordingly he deleted these additions made by the Assessing Officer to the total income of the assessee for A.Ys. 2005-06 and 2006-07. Aggrieved by the orders of the ld. CIT(Appeals) giving relief to the assessee for all the three years under consideration, the Revenue has preferred these appeals before the Tribunal.

therefore, being disposed of ex-parte qua the respondent-assessee after hearing the arguments of the ld. D.R. and perusing the relevant material available on record. The two common issues involved in all these three appeals relate to the deletion by the ld. CIT(Appeals) of the additions 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 f or 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 f or 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 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 f rom 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 justif ied 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 inconf ormity 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.

6. 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 appeals arising f rom the protective assessments by his impugned orders 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 additions made by the Assessing Officer on protective basis in all Page | 6 & 1192/Kol/2013 (ASSESSMENT YEAR-2008-09 & 2007-08)

the three years under consideration without awaiting for the final outcome of the proceedings arising f rom this substantive assessment. We, theref ore, set aside the impugned orders 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 f rom the substantive assessment.

3. In view of the above, we therefore, set aside the impugned orders 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. Thus, the grounds raised

by the Revenue are allowed for statistical purposes.

4. In the result, the appeal of the Revenue is allowed for statistical purposes.

ITA No.1192/Kol/2013 (ASSESSMENT YEAR-2007-08) 5. We find that the issues raised in this appeal are similar to the grounds raised in wherein we discussed the same in the afore-mentioned paragraphs. The view taken by us in ITA No.772/Kol/2013 is applicable to this appeal also.

7. In the final result, both appeals of the Revenue are allowed for statistical purposes.

Order pronounced in the open court on 28.03.2019. Sd/- Sd/- (P.M.JAGTAP) (S.S.VISWANETHRA RAVI) VICE PRESIDENT JUDICIAL MEMBER Date:-28.03.2019 *Amit Kumar* Copy forwarded to:

1. 1. Appellant- DCIT, Central Circle-VII, Aayakar Bhawan, Poorva, 110, Shantipally, Kolkata-700107.

2. Respondent- M/s. Nilhat Promoters & Fiscal Pvt.Ltd., 205, Rabindra Sarani, Kolkata-700107.

3. CIT-Kolkata 4. CIT(Appeals)-Kolkata 5. DR: ITAT -Kolkata Benches By order

AR/H.O.O ITAT, KOLKATA