KASHINATH NARAYAN PATIL,RAIGAD vs. INCOME TAX OFFICER WARD 3, MUMBAI, NEW PANVEL

IN THE INCOME TAX APPELLATE TRIBUNAL “H” BENCH, MUMBAI BEFORE HON’BLE SH. R. C. SHARMA, AM & HON’BLE SH. SANDEEP GOSAIN, JM आयकरअपीलसं./ I.T.A. No. 6767/Mum/2017 (निर्धारणवर्ा / Assessment Year: 2008-09)

ITO ward-3, Kashinath Narayan Patil, Triffed Tower, Khanda At Dadarpada, post बिधम/ Colony, New Panvel, Dighode, Taluka Uran, Vs. Distt-Raigad, Distt-Raigad, Mumbai Pin- Mumbai-400702 स्थायीलेखासं./जीआइआरसं./PAN No. AUVPP2286J (अपीलाथी/Appellant) (प्रत्यथी / Respondent) : अपीलाथीकीओरसे/ Appellant by : Shri Prakash Pandit, AR प्रत्यथीकीओरसे/Respondentby : Shri M. C. Omi Ningshen, DR सुनवाईकीतारीख/ : 09.04.18 Date of Hearing घोषणाकीतारीख / : 31/05/2018 Date of Pronouncement आदेश / O R D E R Per Sandeep Gosain, Judicial Member: The present Appeal filed by the assesseeis against the order of Ld. CIT (Appeal) – 1, Aurangabad, dated 15.03.17 for AY 2008-09on the grounds mentioned herein below:-

2 I.T.A. No. 6767/Mum/2017 Kashinath Narayan Patil

1 In the facts and circumstances of the case and inlaw, the learned CIT(A) erred in confirming the action taken by the A. 0. of reopening the assessment u/s. 147 r.w.s. 148 of the Income Tax Act 1961. 2. Reasons given by the learned CIT(A) for confirming the action taken by the A. 0. of reopening the assessment u/s. 147 r.w.s. 148 of the Income Tax Act 196, are wrong, insufficient and contrary to the facts and evidence on record.

4 I.T.A. No. 6767/Mum/2017 Kashinath Narayan Patil after recording reasons and served on the assessee. The assessee did not filed return of income within the stipulated time as mentioned in the notice u/s 148 of the I.T. Act. However, the return of income was filed by the assessee on 26.12.13 declaring total income of Rs. 2,00,140/-. This income consists of salary income and income from capital gain. Thereafter serving statutory notices u/s 143(2) and 143(1) alongwith questionnaire, order of assessment u/s 143(3) was passed by AO on 24.03.14 thereby making addition of Rs. 1,75,00,000/- on account of unaccounted cash alleged to be received by the assessee from M/s Kolambekar and others.

Aggrieved by the order of AO, assessee preferred appeal before Ld. CIT(A) and Ld. CIT(A) after considering the case of both the parties, dismissed the appeal of the assessee.

Now before us, the assessee has preferred the present appeal by raising the above grounds.

Ground No. 1& 2. 5 I.T.A. No. 6767/Mum/2017 Kashinath Narayan Patil 6. These ground raised by the assessee are inter-related and inter connected and relates to challenging the order of Ld. CIT(A) in confirming the action taken by AO in re-opening the assessment u/s 147 r.w.s. 148 of the Income Tax Act 1961. 7. We have heard counsels for both the parties at length and we have also perused the material placed on record as well as the orders passed by revenue authorities.

Before we decide the merits of the case, it is necessary to evaluate the orders passed by Ld. CIT(A). The Ld. CIT(A) has dealt with the above grounds raised by the revenue in its order. The operative portion of the order of Ld. CIT(A) is contained in para no. 4 of its order and the same is reproduced below:-

7 I.T.A. No. 6767/Mum/2017 Kashinath Narayan Patil corroborated the above fact of "on-money-payments". In one file (CIDCO file No.42, Sector No.47, Plot No.27, Area 1500 sq.mtr., the name of appellant appeared. This plot was transferred by the appellant through Badala Group (intermediary) to entity of Jai Corp Group/M/s. Madan Associates vide tripartite agreement. As per the entries in the seized documents, the appellant had received unaccounted cash of Rs.1,75,00,000/- through Badala Group. On being satisfied that the income had escaped assessment, the AO recorded reasons for re-opening and a notice U/s 148 of the Act dated 13.03.2013 was issued. The AU subsequently completed the assessment U/s 143(3) r.w.s. 147 of the Income Tax Act whereby the unaccounted cash of Rs.1,75,00,000/- was brought to tax in the hands of the appellant. In light of provisions of Section 292BB, since the assessee had not raised any objection during the course of re-assessment proceedings therefore he is not entitled to raise this kind of objection during the course of appellate proceedings. The AU had further issued various letters /statutory notices from time to time, therefore the appellant had ample opportunity to raise the objection that notice U/s 148 had been issued without any basis. That being the case, I am constrained to reject the argument/objection raised by the counsel of the appellant. The counsel of the appellant has argued that 8 I.T.A. No. 6767/Mum/2017 Kashinath Narayan Patil the reasons recorded by the A0 did not have any basis. Therefore the re-opening should be held to be invalid. On careful consideration of the facts & circumstances in the present case, I am not inclined to accept the arguments of the appellant. The AO had received information from the JCIT (OSD) Central Circle, Mumbai that during the course of search at the premises of ShriMadanKolambekar who was an aggregator of lands for M/s. Jai Corp Group, a large number of incriminating documents were seized. One of such documentsshowed an entry relating to cash payment of Rs.1,75,00,000/- to Shri KashinathNarayan Patil The conditions precedent to the exercise of the jurisdiction under section 147, therefore, did exist in the present case. In the case of CIT Vs Kelvinator of India Ltd. (320 ITR 561 ) the Honourable Supreme Court has held that tangible material can entitle the Assessing Officer to take recourse to the power to reopen assessment. The reopening requires some factual material or information which can form the basis of "reason to believe" that income has escaped assessment. Hence there was tangible material which entitled the AO to reopen the case. It therefore transpired that the appellant had received cash of Rs.1,75;00,000/- which had not been offered to tax since no return of income had been tiled for AY 2008- 09. It would be pertinent to mention that for reopening

9 I.T.A. No. 6767/Mum/2017 Kashinath Narayan Patil the assessment U/s 147, there should be prima facie reason to believe that income had escaped assessment. The adequacy of reasons cannot be questioned as held by the Hon'ble Madhya Pradesh High Court in the case of Dr. LataChouhan Vs ITO (189 Taxman 45). The expression "reason to believe" in section 147 would mean cause or justification. If the Assessing Officer has cause or justification to know or suppose that income had escaped assessment, he can be said to have reason to believe that income had escaped assessment. The expression cannot be read to mean that the Assessing Officer should have finally ascertained the fact by legal evidence or conclusion. What is required is "reason to believe" but not the established fact of escapement of income. At the stage of issue of notice, the only question is whether there was relevant material on which a reasonable person could have formed the requisite belief. Whether material would conclusively prove escapement of income is not the concern at that stage. This is so because the formation of the belief is within the realm of the subjective satisfaction of the Assessing Officer. According I reject the contentions of the appellant that the AO should have conducted enquiries prior to issue of notice U/s 148 of the Income Tax Act. Reliance is also placed on the decisions of Honourable Supreme Court in the case of ITO Vs Selected Dalurband Coal

10 I.T.A. No. 6767/Mum/2017 Kashinath Narayan Patil Co. Pvt Ltd. (217 ITR 597) and Raymond Woollen Mills Ltd. Vs ITO (236 ITR 34). It is a settled law that there should be prima facie some material before the Assessing Officer on the basis of which he could reopen the case of the assessee. The sufficiency or correctness of the material was not to be considered because it was open to the assessee to provethat the facts assumed by the Assessing Officer in the notice were erroneous. At the time of issuing a notice under section 148 of the Act, it was not necessary for the Assessing Officer to conclusively arrive at a finding that there had been escapement of income. At the stage of issue of the notice the only requirement was to examine whether on the available material, a reasonable person could form a reasonable view to believe that income chargeable to tax has escaped assessment. Further the Hon'ble Kerala High Court held in the case of G. Sukesh Vs DCIT (252 ITR 230) that the information at the time of issue of notice U/s 148 need not be complete or accurate. In the present case, during the re-assessment proceedings, the AO directed the appellant to explain the entries of "on- money" in the seized documents but he failed to do so. It showed that belief of the AO at the time of recording reasons for issue of notice U/s 148 did not suffer from any infirmity. In the case of VipinBatra, the Honourable Delhi High Court (293 ITR 389) upheld

11 I.T.A. No. 6767/Mum/2017 Kashinath Narayan Patil the reopening U/s 147 of the I.T. Act. In that case, the AO had received information from the office of DDIT (Investigation) Gisrgaon that investigation were conducted by that office with respect to bogus entries of longterm capital gain taken by some assessees from one bank account of M/s. Maheswari Sons, A,/c. No. 8627, Punjab National Bank, Karol Bagh, New Delhi. It came to light that certain beneficiaries had taken entries by paying in cash an amount equivalent to the draft/cheque amount and certain premium on that. However no sale/purchase of shares had actually taken place. The operator of the said account Sb. Praveen Mittal had also admitted in his statement that bogus transactions relating to sale/purchase of shares were done through this bank account and most of the beneficiaries had availed of relief under section 54F of the Income-tax Act, 1961. Some of the beneficiaries like firm/company took capital losses to offset their business gains. The name of the assessee namely Shri VipinBatra was included in the list of beneficiaries from the said account of M/s Maheswari Sons. However the Honbie Delhi Tribunal concluded that there was no specific information before the Assessing Officer entitling him to come to the conclusion that the transaction of long-term capital gains was not genuine so as to constitute escapement of income. It was held that the assumption of jurisdiction was clearly flawed

12 I.T.A. No. 6767/Mum/2017 Kashinath Narayan Patil and, therefore, subsequent proceedings including the assessment framed were liable to be quashed. The Hon'ble DelhiHigh Court however held that the opinion of the Tribunal was erroneous in law. • It was held that the information available with the Assessing Officer was not vague or general in nature because it referred to bogus entries of long-term capital gain taken by some assessees from M/s Maheshwari Sons, the share broker, whose hank and account number were identified. One of the bogus entries related specifically by name to the assessee and the date of his taking the entry and his bank account number as well as the amount had been specified in the reasons recorded. It had also been noted that in fact no sale or purchase of shares had actually taken place and the person who had operated the account of M/s Maheshwari Sons admitted in his statement that bogus transactions relating to sale and purchase of shares were done through this bank account and most of the beneficiaries had availed of relief under section 54F of the Act. Accordingly the HonTble Delhi High Court held that there was specific and adequate reason for the Assessing Officer to come to the conclusion that the transaction entered into by the assessee with M/s. Maheswari Sons for the sale and purchase of shares was a bogus transaction which was entered into through an identifiable bank and an account number.

13 I.T.A. No. 6767/Mum/2017 Kashinath Narayan Patil The truth or otherwise of this information was not a matter that was required to be considered by the court. All that one had to see was whether there was sufficient material and that it was not vague or of a general nature. In the case of Yogendrakumar Gupta Vs. ITO (366 ITR 186), it was argued that the Assessing Officer had attempted to fill in the gap by terming the amount received from Basant Marketing Pvt. Ltd. as it entry", which she could not have done without further inquiry/ verification. Yet another contention emphasized by the assessee was that the post- notice correspondence made after the reasons recorded could not have added anything which was lacking in the reasons themselves. It was urged that in the absence of any statement given by any director of Basant Marketing Pvt. Ltd. stating that the assessee received and obtained accommodation entry in the form of loans and advances, the reasons lacked basis. The director, Mr. Dahula of Basant Marketing Pvt. Ltd. as contended also did not reveal anywhere and, therefore, it was premature on the part of the Assessing Officer to so record the reasons. The Hon'ble Gujarat High Court however noticed that the Joint Director, CBI, Mumbai, had intimated to the DIT (Investigation), Mumbal. A case was registered against Mr. ,4run Dalmia, Harsh Dalmia and during the search at their residence and officepremises, the substantial material

14 I.T.A. No. 6767/Mum/2017 Kashinath Narayan Patil indicated that 20 dummy companies of Mr. AiimDairnia were engaged in money laundering and the income-tax evasion. The said entities included Basant Marketing Pvt. Ltd. also. From the analysis of details furnished and the beneficiaries reflected, which were spread across the country, the Commissioner of Income-tax, Kolkata, suspected the accommodation entry related to the assessment year 2006-07 as well, this information was provided to the Director General of Income-tax, Kolkata, who in turn, communicated to the Chief Commissioner of Income-tax, Ahmedabad. The Hon'ble Gujarat High Court held that insistence on the part of the assessee to provide further material forming the part of investigation carried out against Dalniias also needed to meet with negation, as the law required supply of information on which Assessing Officer recorded her satisfaction, without necessitating supply of any specific documents. The proceedings initiated under section 147 of the Act could not be rendered void on non-supply of such documents for which confidentiality was claimed at this stage following the decision of the Delhi high Court in the case of Acorns Unitech Wireless (P.) Ltd. It was accordingly held that the assumption of jurisdiction on the part of the Assessing Officer was since based on fresh information, specific and reliable and otherwise sustainable under the law, challenge to reassessment

15 I.T.A. No. 6767/Mum/2017 Kashinath Narayan Patil proceedings warranted no interference. These decisions are squarely applicable to the facts of the present case. Reverting back to the present case, I find that the reasons for re-opening were duly recorded by the ITO, Ward-3, Panvel. The entries pertaining to the appellant and amount involved were clearly mentioned in the reasons so recorded. The notice U/s 148 dated 13.03.2013 was issued and duly served on the appellant. The appellant filed the return of income in response to notice U/s 148 of the Act on 26.12.2013 wherein total income of Rs.2,00,140/- was declared. The appellant did not raise any objection during the course of re-assessment proceedings. The attitude of the appellant regarding entries in the seized document was evasive and he did not furnish any explanation about the nature of alleged cash receipts. In view of above facts, I hold that there was no infirmity in the action of the AO and hence re-opening is held to be valid. This ground of appeal is accordingly dismissed.

After having gone through the facts of the present case as well as considering the orders passed by revenue authorities and submissions made by both the parties, we find that AO had received information from the JCIT (OSD) Central Circle, Mumbai that during the course of search at the premises of Shri Madan Kolambekar, who was an aggregator of lands for M/s. Jai

16 I.T.A. No. 6767/Mum/2017 Kashinath Narayan Patil Corp Group, a large number of incriminating documents were seized. One of such documents showed an entry relating to cash payment of Rs.1,75,00,000/- to Shri Kashinath Narayan Patil. Therefore, the AO as well as Ld. CIT(A) considered that the conditions precedent to the exercise of the jurisdiction under section 147 of I.T. Act, did exist in the present case. Therefore, Ld. CIT(A) relying upon the judgment in the case of CIT Vs Kelvinator of India Ltd. (320 ITR 561), wherein the Hon’ble Supreme Court held that“tangible material can entitle the Assessing Officer to take recourse to the power to reopen assessment. The reopening requires some factual material or information which can form the basis of "reason to believe" that income has escaped assessment.” As per the facts of the present case, the AO as well as Ld. CIT(A) was of the opinion that there was tangible material which showed an entry relating to cash payment of Rs. 1,75,00,000/- to Kashinath Narayan Patil which had not been offered to tax, since no return had been filed for AY 2008-09. This fact entitled the AO to reopen the case.

17 I.T.A. No. 6767/Mum/2017 Kashinath Narayan Patil Therefore, while considering the said information as prima facie material for forming ‘reasons to believe’ that income has escaped assessment. Therefore Ld. CIT(A) while relying upon different judgments correctly upheld the order of AO for reopening the assessment.

Moreover, no new facts or contrary judgments have been brought on record before us in order to controvert or rebut the findings so recorded by Ld. CIT(A). Therefore, there are no reasons for us to interfere into or deviate from the findings so recorded by the Ld.CIT(A). Hence, we are of the considered view that the findings so recorded by the Ld. CIT (A) are judicious and are well reasoned. Resultantly, these ground raised by the assessee stands dismissed.

Ground No. 3. 8. This ground raised by the assessee relates to challenging the order of Ld. CIT(A) in confirming addition made by the A.O. of Rs. 1,75,00,000/- being unaccounted cash alleged to be 18 I.T.A. No. 6767/Mum/2017 Kashinath Narayan Patil received by the assessee from M/s. Madan Kolambekar and others.

21 I.T.A. No. 6767/Mum/2017 Kashinath Narayan Patil wherein Ld. CIT(A) has sought clarification from the ITO. Ld. AR also drawn our attention to letter dated 20.01.17 written by ITO to DCIT for seeking cogent evidences regarding allocation of plot no. 27, sector 47, Dronagiri or any other evidences. Ld. AR further submitted that assesse has already submitted all the documents that assessee is not connected in any manner with receipt of any amount of Rs. 1,75,00,000/-. On the other hand, Ld. DR relied upon the orders passed by revenue authorities. After having gone throughthe material placed on record as well as orders passed by revenue authorities, we find that at page no. 164, Ld. CIT(A) had written letter to ITO wherein it has been categorically mentioned that as regards the ownership of plot no. 27 (file no. 42), it has alleged that the same was owned by one Shri Kashinath Narayan Thali as per filed no. 42 retrieved from CIDCO and not the assessee. It was also mentioned in the said letter that the photograph of the assessee namely Shri Kashinath Narayan Patil as evident from his PAN card does not match with the photograph of Shri Kashinath Narayan Thali as affixed on filed no. 42 of CIDCO.Ld. CIT(A)has also mentioned that these

22 I.T.A. No. 6767/Mum/2017 Kashinath Narayan Patil additional evidences are required for proper adjudication of the appeal under consideration. Therefore after admitting these evidences, the same was forwarded to the AO alongwith affidavit of the assessee that he did not own plot no. 27. Ld. CIT(A) has also mentioned in the said letter that the tripartite agreement dated 12.09.16 for transfer of plot also contains the name of Shri Kashinath Narayan Thali and not Shri Kashinatha Narayan Patil i.e. assessee. Apart from above, we also find that in letter dated 20.01.17 written by ITO to DCIT, wherein it was categorically mentioned that from the copy of the allotment letter and lease agreement, in respect of said plot no. 27, sector 47, it is seen that the plot was allotted to Shri Prakash Duklya Banda and 13 other and not the assessee. It was also mentioned in the said letter that vide registered agreement dated 22.16.16, rights of the above plot was transferred by Prakash Duklya Banda and 13 others to M/s Villa City Builders, CBD Belapur and thus from the documents received from CIDCO, it was clear that the plot no. 27, sector 47 was not allotted to the assessee and he had not transferred /sold rights of this plot.

23 I.T.A. No. 6767/Mum/2017 Kashinath Narayan Patil We notice that Ld. CIT(A) sustained the additions made by AO by relying upon the statements as well as seized documents recovered during search and categorically mentioned in para no. 5 of its order that documents were admitted as additional evidence under sub rule 1 of rule 46A and were forwarded to the AO for examination. Ld. CIT(A) further mentioned in its order that allotment letter of CIDCO filed by the assessee refers to plot no. 22 whereas the AO has specifically referred to plot no. 27 in the assessment order for which on money of Rs. 1,75,00,000/- was received by the assessee and apart from this, the area of plot no. 22 and plot no. 27 differs quite, therefore considering these facts, the AO presumed that under same file no. 42 of CIDCO, there could be several plots. Therefore, it was held by Ld. CIT(A) that assessee is guilty of filing misleading information and twisting the facts.

After considering the facts of the present case, we are of the considered view that no additions can be made on the basis of presumptions and assumptions, when once it was clearly brought on record that plot no. 22 and plot no. 27 are different and 24 I.T.A. No. 6767/Mum/2017 Kashinath Narayan Patil belongs to different persons having different areas. Therefore, under these circumstances, AO was under an obligation to carry out necessary verifications regarding the factual position. In this respect, we express our displeasure that the revenue authorities have not carried out detail verifications to find out the truth regarding the factual position in order to find out the role and connectivity of the assessee with plot in question. At this stage, we draw strength from the judgment of Hon’ble Apex Court in the case of Kapurchand Shrimal Vrs. CIT (1981) 131 (ITR) Page 451 wherein it was held that the duty of the Tribunal does not end with making a declaration that the assessments are illegal and it is duty bound to issue further directions. The appellate authority has the jurisdiction as well as the duty to correct all errors in the proceedings under appeal and to issue, if necessary, appropriate directions to the authority against whose decision the appeal is preferred to dispose of the whole or any part of the matter afresh unless forbidden from doing so by the statute and the statute does not say that such direction cannot be issued by the appellate authority in a case of this nature.

25 I.T.A. No. 6767/Mum/2017 Kashinath Narayan Patil In our considered view, since the Tribunal is a last fact finding authority and the purpose of making assessment and verification is to find truth and to reach to a logical conclusion, therefore, considering the above judgment and keeping in view the interest of justice, we set aside the order of Ld. CIT(A) and remit the matter back to the file of AO with a direction pass afresh order on this ground after carrying out necessary verifications regarding the factual position. It is needless here to mention that before passing the order of assessment, the AO shall provide sufficient opportunity of hearing to the assesse.It is also made clear that assessee shall extend all necessary cooperation to the AO in expeditious disposal of this matter.

Before parting, we may make it clear that our decision to restore the matter back to the file of AO shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by the AO independently in accordance with law.Resultantly this groundraised by the assessee is allowed for statistical purposes.

26 I.T.A. No. 6767/Mum/2017 Kashinath Narayan Patil Ground No. 4. 10. This ground is general in nature, thus requires no specific adjudication.

आदेशकीप्रनिनिनिअग्रेनर्ि/Copy of the Order forwarded to : अपीलाथी/ The Appellant 1. 2. प्रत्यथी/ The Respondent 3. आयकरआयुक्त(अपील) / The CIT(A) आयकरआयुक्त/ CIT- concerned 4. 5. यवभागीयप्रयतयनयि, आयकरअपीलीयअयिकरण, मुंबई/ DR, ITAT, Mumbai 6. गार्डफाईल / Guard File आदेशधिुसधर/ BY ORDER,

.उि/सहधयकिंजीकधर (Dy./Asstt.