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Facts
The assessee initially filed a nil/loss return for AY 2011-12. Subsequently, the case was selected under Section 153C based on a search on the S.K. Jain group, where documents related to the assessee were found. An assessment under Section 143(3) was completed at a loss. Later, the case was reopened under Section 148, and the AO made an addition of Rs.1,00,59,875/- for alleged accommodation entries. The Ld. CIT(A) allowed the assessee's appeal, deleting the addition, leading the Department to appeal to the ITAT and the assessee to file cross-objections.
Held
The ITAT upheld the order of the Ld. CIT(A), ruling that the AO had failed to bring concrete evidence to prove that the transactions were accommodation entries. The Tribunal noted that the NCLT, NCLAT, and Hon'ble Supreme Court had previously dismissed a petition by the MCA to wind up the assessee company, thereby confirming it was not a shell company. Furthermore, the assessee demonstrated substantial profits and income tax payments in subsequent assessment years (AY 2019-20 to AY 2024-25), supporting its claim of being a genuine entity. Consequently, the Department's appeal was dismissed, and the assessee's cross-objections were also dismissed as not pressed.
Key Issues
Whether the CIT(A) was justified in deleting the addition made by the AO for alleged accommodation entries; Whether the assessee company was a shell company providing accommodation entries; Whether the reassessment proceedings initiated under Section 148 of the Act were valid.
Sections Cited
250, 1961, 147, 144, 143(1), 153C, 143(3), 148, 151, 143(2)
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Income Tax Appellate Tribunal, DELHI BENCHES : C : NEW DELHI
Before: SHRI S. RIFAUR RAHMAN & SHRI VIMAL KUMAR
Assessment Year : 2011-12 Apoorva Leasing Finance and Vs. DCIT, Investment Company Ltd., Circle-3(1), Third Floor, 13/331, New Delhi. Geeta Colony, Delhi – 110 031. PAN: AABCA0282A (Appellant) (Respondent) Assessee by : Dr. Rakesh Gupta, Advocate & Shri Somil Agarwal, Advocate Revenue by : Shri Om Parkash, Sr. DR Date of Hearing : 30.10.2025 Date of Pronouncement : 31.12.2025 ORDER PER VIMAL KUMAR, JM:
The appeal filed by the Department and the Cross Objections filed by the assessee are against the order dated 28.11.2024 of the ld. Commissioner of CO NO.179/Del/2025 Income-tax (Appeals), Delhi-23 [hereinafter referred to as the Ld. CIT(A)] u/s 250 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) arising out of the assessment order dated 26.12.2018 of the ld. AO/Ld. DCIT, Circle-3(1), New Delhi, (hereinafter referred to as ‘the ld. AO’) u/s 147 r.w.s. 144 of the Act for Assessment Year 2011-12.
Brief facts of the case are that the assessee filed original return of income on 30.09.2011 declaring nil income. The ITR was revised on 04.10.2011 by revising the income to a loss of Rs.79,409/-. The return was processed u/s 143(1) of the Act. The case was selected to initiate proceedings u/s 153C of the Act after receiving information from the Investigation Wing that during the source of search and seizure operation at the various premises of Shri S.K. Jain group of cases many books of account and documents belonging to the assessee company were found and seized. An order u/s 143(3) of the Act was passed on 28.03.2018 assessing at a loss of Rs.79,409/-. The case was reopened by issuing notice u/s 148 of the Act dated 31.03.2018 to assess/reassess the income of the assessee after recording reasons with prior approval of the competent authority. In response to the notice, the assessee did not file any return of income. On completion of the proceedings, the ld. AO, vide order dated 26.12.2018, made an addition of Rs.1,00,59,875/-.
3. Against the order dated 26.12.2018 of the Ld. AO, the assessee filed appeal before the ld.CIT(A) which was allowed, vide order dated 28.11.2024.
Being aggrieved, the appellant-Department preferred an appeal and the respondent-assessee preferred Cross Objections:-
In the appeal of the Department, the grounds taken are as under:- “1. Whether in the facts and circumstances of the case Ld. CIT(A) erred in holding that since no addition or adverse inference was made in the assessment order passed in AY 2012- 13 or earlier years therefore the assessment order u/s148 passed subsequently holding the assessee as a shell company is not justified. 2. Whether on the facts and in the circumstances of the case, Ld CIT(A) erred in relying on the order of NCLT and NCLAT for holding that the assessee company is not a shell company, despite the fact that the order of NCLT and NCLAT was decided on technical grounds of unproper sanction and lack of opportunity. The said decisions were not on merits. 3. Whether on the fact and in the circumstances of the case, the Ld CIT(A) erred in taking inference from the financials of AY 2019-20 onwards to hold that the assessee was not a shell company during A.Y.2011-22 despite the fact that there are adequate evidence as elaborated in the assessment order that the assessee was indulged in the activity of accommodation entry being undertaken during the 4tY.2011-22. 4. The appellant craves leave for reserving the right to amend, modify, alter, add or forego any ground(s) of appeal at any time before or during the hearing of this appeal 5. The case falls under exceptions to para 3.1 (c) of CBDT circular 5/2024 as being a case c. Where the assessment is based on information in respect of any offence alleged to have been committed under any other law received from any of the law enforcement or intelligence agencies such as CBI, ED, DRI, SFIO, NIA, NCB, DGGI, state law enforcement agencies such as State Police, State Vigilance Bureau, State Anti-Corruption Bureau, State Excise Department, State Sales/Commercial Taxes or GST Department, or”
In the Cross Objections, the respondent-assessee raised the following cross objections:-
The ld. DR for the Revenue submitted that the ld.CIT(A) erred in relying the order of NCLT and NCLAT for holding the assessee company as not a shell company despite the fact that the order of NCLT and NCLAT were on technical ground of improper sanction and lack of opportunity. The ld.CIT(A) erred in taking inference from financials for Assessment year 2019-20 onwards to hold that the company was not a shell company during the AY 2011-12 despite adequate evidence as elaborated in the assessment order.
The ld. AR for the respondent-assessee, regarding grounds of the Department submitted that a categorical finding has been given by Ld CIT(A) to the effect that no evidence whatsoever has been brought on record by Ld AO to even remotely suggest that the said transactions are in the nature of accommodation entries except surmises and conjectures. Further, Hon’ble NCLT also held assessee to be a genuine entity by passing a speaking order and dismissing the petition filed by the MCA against the assessee on the basis the very same SFIO report for holding assessee to be a shell company. Thereafter, further appeal filed by the MCA against the order of NCLT before Hon’ble NCLAT was dismissed by Hon’ble NCLAT and the appeal against the said order NCLAT before Hon’ble Supreme Court was also dismissed by Hon’ble Supreme Court. PB 119-125 is the copy of written submissions filed by the assessee before Ld. CIT(A) submitting the above stated facts. Moreover, perusal of page 27 of the order of Ld. CIT(A) would show that the assessee has declared huge CO NO.179/Del/2025 profits and paid substantial amount of taxes in subsequent years and therefore, assessee cannot be held to be a shell entity in any manner whatsoever.
The Cross Objections were not pressed at the time of hearing.
From the examination of the record in the light of the aforesaid rival contentions, it is crystal clear that the ld.CIT(A) in paras 16 and 17 of his (Pages 18 to 28) held as under:- “16. In Ground of Appeal No. 4, appellant contested that the Ld. DCIT has erred in law and on facts in holding without any basis or evidences that the company provided accommodation entries during the year and making addition of Rs. 1,00,59,875/- allegedly earned as commission @1.75% on advances/investments made by the company. 16.1 On this ground of appeal, the appellant has submitted as under: A. ‘The Ld. DCIT has alleged that the assessee company, during the year, has provided accommodation entries amounting to Rs. 57,48,50,000/- and has allegedly earned commission of Rs. 1,00,59,875/- @ 1.75% on this amount. The operative part of the assessment order as per which this calculation for addition has been made is reproduced herewith for ready reference. “In view of the above, it is concluded that the assessee has provided accommodation entries of Rs. 6,46,00,000/- as advance against property and Rs. 51,02,50,000/- as investments. Total amount of such accommodation entries thus, comes to Rs. 57,48,50,000/- and the commission income @1.75% as per the reasons recorded, comes to Rs. 1,00,59,875/-. Hence, an addition of Rs. 1,00,59,875/- is hereby made on account of commission income which the assessee has earned in providing the accommodation entries of Rs. 57,48,50,000/- during the year. The assessee has shown Advance against Property at Rs. 6,76,00,000/- against the preceding year’s figure of Rs. 30,00,000/-. Since the assessee company has not carried out any genuine business activity, the advance of Rs. 6,46,00,000/- given against property represent the accommodation entry provided during the year.
CO NO.179/Del/2025 Though there is decrease in the value of investments which had been shown at Rs. 118,71,28,420/- in the preceding year to Rs. 111,27,97,870/- in the current year, it is seen from the list attached thereto, that out of total amount of Rs. 118,71,28,420/-, only a sum of Rs. 60,25,47,870/- was carried forward to the next year and the remaining amount of Rs. 58,45,80,550/- was received back during the year. Hence, out of closing investment of Rs. 111,27,97,870/-, old investment were to the tune of Rs. 60,25,47,870/- and remaining investment of Rs. 51,02,50,000/- was fresh investments which were provided during the year”. B. The perusal of the reasons for reopening of the case and the complete assessment order suggest that the complete case is based on the following presumption/parameters concluding that the assessee company is an accommodation entry provider and the complete payments/investments made by the assessee company during the year were accommodation entries only.
1. Investigation Wing Report based on search of S. K. Jain Group on 14.09. 2010.
2. SFIO Report on investigations of the companies as referred by MCA in which the name of the assessee company has also been included. It is to be noted that the SFIO report is also result of and mainly based on the Investigation Wing report as mentioned above.
The Ld. DCIT has, in the beginning pages of the assessment order concluded that out of total transactions of Rs. 48,19,41,550/- entered by the assessee company as per SFIO report, a sum of Rs. 8,97,00,000/- was pertaining to F Y 2009-10 (A Y 2010-11) and Rs. 39,22,41,550/- pertained to F Y 2010-11 (A Y 2011-12). This calculation is wrong as explained hereafter.
4. Based on the above, the Ld. DCIT assumed that all the investments/payments made by the assesee company during the year (as calculated by the Ld. Assessing Officer to be Rs. 57,48,50,000/- were accommodation entries) and made addition of Rs. 1,00,59,875/- @ 1.75% as commission earned by the assessee company. C. It is submitted that all the above conclusions drawn by the Ld. DCIT are not based on any fact or evidences but are all assumptions and surmises arrived at on the basis of a pre-fixed mind. The clarifications proving that there is no substance in any of the above contentions of the DCIT are submitted as under.
1. Regarding the DCIT’s conclusion based on the report of the Investigation Wing it is submitted that the assessing officer, in Para 3 of Page 3 of the assessment order, itself mentions that the report of the Investigation Wing is based on the search on S. K. Jain Group on 14.09.2010. a1. In this regard it is submitted that in consequence of this search on S K Jain Group on 14.09.2010, the assessee company’s cases were also taken under Section 153 for Assessment Years 2005-06 to Assessment Year 2010-11 and as the search was done on 14.09.2010 (F Y 2010-11), the case for A Y 2011-12 was completed u/s 143(3) along with earlier years’ cases completed u/s 153C of the Act. The copy of the assessment order dt. 28.03.2013 for A Y 2011-12 has already been submitted as per page 18 to 19 of Paper Book No. I. The perusal of the order clearly mentions that the case was taken u/s 153C on account of search on the premises of S. K. Jain Group on 14.09.2010 and many books of account and documents belonging to the assessee company were found and seized to initiate the proceedings u/s 153C of the Act. It clearly establishes that all the seized material during the search and all the information gathered after the search were taken into account while framing this assessment u/s 143(3) of the Act. It establishes that all the relevant material for the transactions pertaining to this Financial Year as seized during the search or in post search investigations were considered during the framing of the assessment u/s 143(3) of the Act. It is to be noted that after considering all these material and investigation, that too by Central Circle where all the relevant material seized during the search of S K Jain Group was available, the assessment was framed at returned income. It clearly establishes that there was no finding, evidence or conclusion that the assessee company was providing any accommodation entries. a2. From the above it is clear that as far as report of Investigation Wing as referred by the Ld. DCIT in its order, again and again, there is nothing conclusive against the assessee company and it should not be of any relevance and should not influence adversely the opinion of the DCIT while framing the assessment for this year. b As per Para ‘avii’ on Pages 13 to 15 of the assessment order, there is reference of findings by SFIO and MCA (apart from Investigation Wing which has been dealt above by the assessee). Para 4 at Page 14 of the assessment order mentions regarding SFIO report and the same is reproduced for ready reference: “As per report of SFIO, Ministry of Corporate Affairs as mentioned above, the assessee company has made transactions of Rs. 48,19,41,550/-. This transaction is noted on Page No. 35 of SFIO report. As per Page 36 of SFIO CO NO.179/Del/2025 report, period covered regarding transactions also pertains to period from 01.04.2010 to August 2010. Therefore, it is taken that the assessee has provided accommodation entries in the F Y 2010-11 relevant to A Y 2011- 12 to various beneficiaries”. The fact that MCA order for investigation by SFIO was dt. 28.10.2013 but the transaction referred by the SFIO in its report were upto August 2010 only proves that the SFIO based all its so called investigations on the basis of data as per report of Investigation Wing as report of Investigation Wing contained information upto August 2010 only (date of search being 14.09.2010). So there is nothing new in SFIO report except presentation of data compiled by Investigation Wing during search on 14.09.2010.
From the reference of data as in ‘b’ above it comes out that the SFIO has pointed out total transactions of Rs. 48,19,41,550/- by the assessee company till August 2010. It is to be noted that nowhere there is any mention of any investigation done by SFIO or MCA proving that the assessee company was providing any accommodation entries. The report of the SFIO is regarding companies allegedly associated with S K Jain assuming that all the allegedly connected companies were carrying on only accommodation entries business. It is being categorically stated by the assessee here that the assessee company did not receive any notice for investigation by SFIO. The assessment order also gives only figure of Rs. 48,19,41,550/- as the total transactions by the assessee company till August 2010. There is no reference of any investigation by SFIO in case of assessee specifically. It is submitted that the assessing officer has concluded in Para 3 of Page 15 of the order that out of Rs. 48,19,41,550/-, Rs. 8,97,00,000/- pertains to period prior to 01.04.2010 and has taken (assumed) remaining amount of Rs. 39,22,41,550/- pertaining to F Y 2010-11. It is submitted that this calculation of the Ld. DCIT is incorrect. The assessee clarified during the assessment that out of Rs. 48,19,41,550/-, a sum of Rs. 46,34,41,550/- was pertaining to F Y 2009- 10 and only Rs. 1,85,00,000/- pertained to F Y 2010-11 i.e. A Y 2011-12. The detailed working giving reference of Annexure Number/Page number, Bank name, name of the party, Cheque number, date of the transaction and amount of the transaction was submitted to the assessing officer vide assessee’s submission dt. 14.12.2018. As required by the assessing officer, the copy of accounts of all these parties in books of account of the assessee were also submitted to substantiate the respective dates of the transaction to establish the year to which the each transaction pertained. The detail clearly establishes that out of Rs. 48,19,41,550/-, the amount pertaining to A Y 2011-12 is only Rs. 1,85,00,000/-. The point to be noted here is that even the transactions of Rs.
CO NO.179/Del/2025 1,85,00,000/- are of April 2010 which means that these transactions were well before the date of search and had gone through the scrutiny along with all the seized material proving that there was nothing adverse found even during the search for these transactions. The detail as referred here along with submission dt. 14.12.2018 have been filed before yourself vide pages no. 96 to 236 of Paper Book-II. It is submitted that inspite of all these details having been filed before the assessing officer, the fact that only Rs. 1,85,00,000/- transactions were pertaining to A Y 2011-12 has not been contradicted or denied by the assessing officer anywhere in the order which clearly establishes that the alleged doubtful transactions pertaining to A Y 2011-12 were only for Rs. 1,85,00,000/-. Although the transactions relating to A Y 2010-11 are not in question here but as the amount of Rs. 46,34,41,550/- out of the total figure of Rs. 48,19,41,550/- (as referred by SFIO as total transactions of the assessee company) are relating to A Y 2010-11, it is to clarify that order u/s 153C of the Act for A Y 2010-11 was also passed without any adverse finding of the assessee being providing accommodation entries or any other adverse finding against the assessee company and returned income was accepted. The copy of the order is submitted herewith at page 255 to 257 of Paper Book-III. Even a notice dt. 31.03.2017 u/s 148 of the Act and notice dt. 22.11.2017 u/s 142(1) of the Act were issued for A Y 2010-11 (copies of notices submitted at Page 258 to 260A of Paper Book III), but after considering assessee’s submissions, the proceedings were dropped vide entry in DCR Number 36/9/2017. This clearly establishes that even the transactions covered by SFIO report for F Y 2009-10 (A Y 2010-11) were cleared by Income tax Department after scrutinizing it twice It is to be noted that the fact that SFIO report mentions about the transaction upto August 2010 only clearly establishes that the SFIO report was totally based on report of the Investigation Wing for search done on 14.09.2010 and SFIO as such has not added any adverse evidence against the assessee company. c1. Another important point with relevance to the report of SFIO and MCA is that on the basis of report of SFIO, MCA filed petition before the Hon’ble NCLT, Delhi for winding up of the assessee company alleging that the assessee company is one of 49 companies of S K Jain Group used as shell companies for illegal transactions. It is submitted that after hearing, the Hon’ble NCLT vide its order dt. 18.01.2019 dismissed the petition of MCA. The Hon’ble NCLT dismissed the petition on law point as well as on facts of the operations of the assessee company. The copy of the order of NCLT is submitted herewith as Page no. 261 to 283 of Paper Book III.
CO NO.179/Del/2025 It is submitted that there are various references in NCLT order at para no.7, para no.9, para no. 13, para no.14, para no. 12 of the order. However the order/judgment portion has been produced as para no.15 on page 21, 22 and 23 of the order. Wherein besides the sanction, the court has given its judgment on specific facts of company. The court has held – Not only on the point of sanction, the petition itself is also devoid of specific allegations/findings against of the respondent company allegedly unearthed during the SFIO's investigation in their voluminous report. (page no. 281of PBIII) • No details of the documents found in custody of Jain Brothers linking transaction of NKS Holdings and the respondent company are available in the petition. (page No. 281 of PB-III) • Notwithstanding the fact that there is no material or involvement brought to our notice except for bald averments. (page no. 282 of PB-III) • It is also difficult to accept that a company formed in 1993 with a paid up capital of Rs.19.97 crores can be construed as a shell company incorporated for the purpose of money laundering. (Page no. 282 of PB-III) It is an exercise in futility resulting in harassment, loss to the company. (Page no. 282 of PB III) The MCA appealed against this order before Hon’ble NCLAT which dismissed the appeal of MCA vide order dt. 04.12.2019. The copy of the order of the Hon’ble NCLAT is submitted herewith at page 284 to 293 of Paper Book III. The MCA appealed against order of Hon’ble NCLAT before the Hon’ble Supreme Court which also dismissed appeal of MCA. The copy of order dt. 29.01.2021 of Hon’ble Supreme court is submitted herewith at Page no. 294 to 295 of Paper Book III. From the above it is clear that the order of Hon’ble NCLT has attained finality in totality upto the highest level of Hon’ble Supreme Court. In view of the above it cannot be alleged under any circumstances, that too when there is no conclusive evidence against the company that the assessee company is a shell company providing accommodation entries. d. From the perusal of the complete assessment order, it is clear that the Ld. DCIT has been referring to the Investigation Wing report in case of S K CO NO.179/Del/2025 Jain and SFIO/MCA report upto Page 21 of the assessment order. Till this stage the Ld. DCIT kept on referring to transactions of Rs. 39,22,41,550/- pertaining to F Y 2010-11 being doubtful as per report of SFIO. This amount was also the basis for recording of the reasons for reopening of the case. Once the assessee clarified with evidence put on record that out of Rs. 48,19,41,550/-, it is only Rs. 1,85,00,000/- which pertained to A Y 2011- 12, the Ld. DCIT simply took out figure of Rs. 57,48,50,000/- as the difference in investments at between beginning of the year and end of the year and assumed the difference being the investments made during the year as all accommodation entries. It is to be appreciated that there is no evidence put on record to substantiate the allegation that all these transactions are accommodation entries. The complete narrative is on the alleged Investigation Wing report and SFIO/MCA report and on the assumptions and surmises arrived at on the basis of these reports the Ld. DCIT has arrived at the conclusion of these being accommodation entries. The submissions above have clearly established that there is no adverse evidence getting drawn against the assessee from these reports which have attained finality before the relevant authorities/courts. C. As there is no evidence against the assessee that the investments of Rs. 57,48,50,000/- made by the assessee during the year are accommodation entries and the complete transactions are banking transactions duly entered in regular audited books of accounts and the addition has been made on assumptions and surmises, it is prayed that the addition of Rs. 1,00,59,875/- be deleted.’ 16.2 The submissions of the appellant have been considered. As is clear from the reasons recorded and other contents of the assessment order, the complete case against the assessee is based on Investigation Report which has transactions upto June 2010 (as gathered from search carried on 14.09.2010) and SFIO report made on the basis of order of Ministry of Corporate Affairs later on. 16.3 As the assessee has demonstrated there are transactions amounting to Rs. 1,85,00,000/- only relating to A Y 2011-12 in Investigation Report as against Rs. 39,22,41,550/- claimed by the assessing officer. These transactions of Rs. 1,85,00,000/- relating to A Y 2011-12 were considered in the original assessment u/s 143(3) in reference to Section 153C and assessment was completed vide order dt. 28.03.2013 by Assistant Commissioner of Income Tax, Central Circle 23, New Delhi along with other assessment orders for the block period from A Y 2005-06 to A Y 2010-11. It is noticed that no addition or any other adverse inference treating the appellant company as shell company indulged in providing accommodation entries, has been drawn in this assessment order dt. 28.03.2013 for A Y 2012-13 or earlier years’ orders.
CO NO.179/Del/2025 16.4 Regarding SFIO Report, on the basis of this report, Ministry of Corporate Affairs filed petition before Hon’ble NCLT Delhi to order winding up of the appellant company on the allegation that the appellant company is a shell company. The Hon’ble NCLT Delhi has passed speaking order in which it has held that the appellant company cannot be construed as a shell company. The Hon’ble NCLT also made other observations stating that there is no material brought to our notice except for bald averments. These and other observations from order of the Hon’ble NCLT are produced in the submissions of the appellant as mentioned above. This order of NCLT was challenged by MCA by filing appeal before Hon’ble NCLAT, which was dismissed. From the above it is clear that holding the appellant company as shell company providing accommodation entries on the basis of investigation report or SFIO report does not stand justified. The assessing officer has not brought on record any other material to justify treating all the transactions of F Y 2010-11 as accommodation entries and making addition at the rate of 1.75% on Rs. 57,48,50,000/-. 16.5 The appellant was asked to submit latest income tax payment details for last 6 years. It has submitted the detail of profit declared by it as per its P&L account and Income tax paid for last six Assessment Years from A Y 2019-20 to A Y 2024-25 which is as under:- S.No. F.Y. A.Y. Profit As per P&L Income Tax Paid 1. 2018-19 2019-20 65555711 18270351 2. 2019-20 2020-21 45523800 12056277 3. 2020-21 2021-22 41502877 9743673 4. 2021-22 2022-23 59353790 15207824 5. 2022-23 2023-24 27101586 7384895 6. 2023-24 2024-25 25942413 6508216 The above information also supports the contention of the appellant that it is not a shell company. 16.6 From the above it is clear that the addition of Rs. 1,00,59,875/- made by the assessing officer on account of commission income earned by the appellant in providing accommodation entries, is not justified. Hence this addition is deleted and ground of appeal no. 4 is allowed. CO NO.179/Del/2025
In the result, the appeal is partly allowed.”
From perusal of the above findings of the ld.CIT(A), it is apparent on record that the ld.CIT(A) on the basis of the details of profit declared and income-tax paid for AY 2019-20 to AY 2024-25, deleted the addition made by the ld. AO holding it to be just, fair and reasonable. The order of the ld.CIT(A) is therefore, upheld. The grounds of appeal of the Revenue No.1 to 5 are rejected. The cross Objections being not pressed are dismissed.
In the result, the appeal of the Department and the Cross Objections of the assessee are dismissed.