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Income Tax Appellate Tribunal, H Bench, Mumbai
Before: Shri G.S. Pannu & Shri Pawan SinghSmt. Jagruti Vijay Gorwadia
This appeal filed by Revenue is directed against the order of the CIT(A)-33, Mumbai dated 14.03.2016 and it relates to A.Y. 2008-09.
Revenue has raised the following grounds of appeal: - (i) Whether on the facts and circumstances of the case and in law, whether Ld. CIT(A) was correct in deleting the addition of Rs.1,06,11,129/- without appreciating the action of the A.O. (ii) Whether on the facts and circumstances of the case and in law, whether Ld. CIT(A) was correct in deleting the addition by not treating the same as the income from other sources by not appreciating the action of the A.O.”
3. The brief facts of the case are that the assessee filed return of income for A.Y. 2008-09 on 26.09.2008 declaring Nil income. The assessment was reopened on the basis of information received from the DG, Investigation Wing, Mumbai which had conducted survey in the case of Mahasagar Group of cases managed by one Shri Mukesh Choksi who was engaged in fraudulent billing activity and providing bogus speculation profit/loss on Smt. Jagruti Vijay Gorwadia commodity trading and different kinds of accommodation entries. From the computer seized from the premises of Shri Mukesh Choksi a list of beneficiaries was extracted/taken. In the list name of the assessee was shown as a beneficiary. On the basis of the information the AO made belief for reopening of assessment. A notice under Section 148 of the Income Tax Act, 1961 (hereinafter "the Act") dated 26.03.2013 was served upon the assessee. In response to the notice assessee furnished her reply dated 13th January, 2014 contending that the return filed on 26.09.2008 may be treated as return in response to the said notice. The assessee was completed by the AO under Section 147 r.w.s. 143(3) of the Act. The AO, on the basis of the information received from the Investigation Wing made addition of `1,06,11,129/- on account of income from other sources. On appeal before the CIT(A) the entire addition was deleted. Therefore, aggrieved by the order of the CIT(A) Revenue is in appeal before us.
4. We have head the learned D.R. for the Revenue and the son of the assessee who was present before us. The learned D.R. supported the order of the AO. The learned A.R. submits that the assessment was reopened on the basis of information that assessee availed accommodation entry of `1,06,11,129/-. Assessee was asked to explain as to why the addition be not made as the assessee’s name appeared in the list of beneficiaries obtained during the search action on Mukesh Choksi group. The assessee simply contended that she has not transacted with M/s. Alliance Intermediaries & Network Pvt. Ltd. The assessee failed to substantiate her contention. Therefore, the AO made the addition. The learned D.R. submitted that the assessee failed to produce documentary evidence to substantiate her contention. He relied on the decision of the Hon'ble Delhi High Court in the case of CIT vs. Jansampark Advertising & Marketing (P) Ltd. 56 taxmann.com 286. On the other hand, the son of the assessee contended that they haves no concern with either Shri Mukesh Choksi or with M/s. Alliance Intermediaries & Network Pvt. Ltd. They have never transacted with the entity managed by Mukesh Choksi group. The son of the assessee further contended that his mother has filed affidavit before the AO as well as before the CIT(A) that they have no concern with M/s.
Smt. Jagruti Vijay Gorwadia Alliance Intermediaries & Network Pvt. Ltd. nor have ever opened any DEMAT account with the entity managed by Mukesh Choksi. There is no transaction in their bank account with any of the concern managed by Mukesh Choksi group.
We have heard the rival contentions and gone through the orders of the Authorities below. The AO made the addition on the basis of the entries found in the record maintained by Shri Mukesh Choksi and the statement given by Shri Choksi about the beneficiary, who has availed accommodation entries. We have noted that the AO has not carried out any independent investigation. The assessee has furnished copy of bank account, bank statement along with affidavit wherein she has clearly stated that there is no transaction of sale or F&O with M/s. Alliance Intermediaries & Network Pvt. Ltd. The AO has not given any finding on the documentary evidence furnished by the assessee. The AO made addition solely on the basis of the information received from the Investigation Wing. Before the CIT(A) the assessee challenged the validity of reopening as well as the addition of `1,06,11,138/- under the head ‘income from other sources’. The learned CIT(A) sustained the validity of reopening of assessment. However, on addition the learned CIT(A) observed that despite filing sufficient documentary evidences by assessee that no transaction of share and F&O with M/s. Alliance Intermediaries & Network Pvt. Ltd. have been made by the assessee in financial year 2007-08 and before or thereafter, the AO has not taken cognizance of the affidavit filed by the assessee. The AO only relied upon the list of beneficiaries supplied to him and the statement of Shri Mukesh Choksi. The addition made by the AO is without independent investigation and the conclusion arrived by the AO is not based on appreciation of facts and is difficult to accept. The learned CIT(A) deleted the entire addition.
Before us the learned D.R. failed to bring any contrary evidence or case law to take any contrary view. Therefore, we do not find any merit in the ground raised by the Revenue. The case law relied by the learned D.R. in Jansampark Advertising & Marketing (P) Ltd. (supra) is not applicable
Smt. Jagruti Vijay Gorwadia on the facts of the case. I the present case the assessee has discharged is onus by filing sufficient documentary evidences in her power and possession and discharged the onus. However, in the case of Jansampark Advertising & Marketing (P) Ltd. (supra) the AO failed to conduct any investigation.
In the result, the appeal filed by the Revenue is dismissed.