JCIT, MEERUT vs. M/S PRASANDI BIOTECH PARK PVT. LTD., MEERUT

1) This appeal is filed by revenue against the order of the Commissioner of Income Tax (Appeals) Meerut dated 07/05/2012 aggrieved by ITA 4304 DEL 2012 PRASANDI BIOTECH PARK PRIVATE LIMITED A Y 2009_10 - COPY i. deletion of the addition of Rs. 1,00,00,000/- made by the assessing officer under section 68 of the Income Tax Act 1961 on account of an unproved share application money ignoring the fact that the companies from whom share application money and share premium was received were not in existence and their identity was not true as also established by the enquiry report of the investigation wing Delhi of the Income tax department. ii. deletion of the addition of Rs. 391650/-on disallowance of agricultural income where there were no evidences of the sale of agricultural produce of earning of agricultural income was furnished by the assessee despite specific opportunities.

2) The brief facts of the case are that that assessee is a private limited company engaged in construction and development of activities. Return of income showing income of Rs. 1577045/- was filed on 27/09/2009. During the year under consideration, it was noticed that the assessee has received share application money from two companies worth Rs. 1,00,00,000/- through cheque. It was further noticed by the assessing officer that the assessee is not doing any activity but has only the agricultural land and few plantations worth Rs. 6 lakhs is being done. During the course of assessment

ITA 4304 DEL 2012 PRASANDI BIOTECH PARK PRIVATE LIMITED A Y 2009_10 - COPY proceedings, the assessing officer referred the matter to the investigation wing , Delhi and obtained inquiry report there from. The inquiry report stated that the above two companies who have invested in the assessee company are engaged in the entry business since long. During the course of search conducted in the case of “today group” on 26th of November 2009 this fact came to the notice of the Income tax Department. Post-search enquiries revealed that Shalini Holdings Ltd is an entry operator. None of the directors of those companies were available on the given address and both the investor companies are not found functioning on the given address. On enquiry in neighborhood of those companies, it was found that none of them were aware about these companies. On further enquiry, it was found that Mr. Virendra Kumar Jain is the man behind these entry operating companies. During the course of assessment proceedings, the assessee was asked to produce the director of the above companies to offer their comment and to prove the genuineness of transactions. Assessee did not produce any of the directors of the company and therefore a show cause notice was issued to the assessee on 28th of December 2011. In response to this assessee submitted reply, dated 28th of December 2011 itself submitting the ROC data of these companies from the site of the registrar of ITA 4304 DEL 2012 PRASANDI BIOTECH PARK PRIVATE LIMITED A Y 2009_10 - COPY companies. However regarding the presence of the directors of the investor company before the assessing officer it was submitted that they are busy in their affairs and could not come before the assessing officer. Ld. assessing officer made the addition of Rs. 1 crore holding that as per investigation by the Income tax department these companies have been proved in money laundering business and are entry operators through Mr. Virendra Kumar Jain. At the given addresses the company was not available hence are not verifiable. Further the bank account, copy of ITR and balance sheet etc are not filed of the above named companies. On the confirmation filed by the companies the huge premium was charged of Rs. 2400/- per share and assessing officer was of the view that it is a collusive transaction. Further the consideration received from the both the companies were found to be contradictory and therefore same were disbelieved by the assessing officer even the signature on the confirmation furnished by the assessee and received by the Ld. assessing officer was also doubted and therefore it was the view of the assessing officer that the transaction are not genuine and it is a clear-cut attempt to convert unaccounted money of the assessee company under the garb of share premium therefore he made an addition of sum received from both these

ITA 4304 DEL 2012 PRASANDI BIOTECH PARK PRIVATE LIMITED A Y 2009_10 - COPY companies amounting to Rs. 1 crore under section 68 of the Income tax act. Further the assessee has shown agricultural income of Rs. 391650/- in its books of accounts the sales is shown to be in cash. The assessee did not submit any details regarding sales, which can throw any light over the product sold, and there were no documents submitted by the assessee before the assessing officer based on which any verification can be made about the veracity of agricultural income of the company. Therefore ld. assessing officer disbelieved the sale of agricultural produce and made an addition of Rs. 391650/- under section 68 of the act disallowing agricultural income. 3) Aggrieved by the order of the Ld. assessing officer assessee preferred an appeal before the Commissioner of Income Tax (Appeals). On the issue of addition of Rs. one crore under section 68 of the income Tax act on account of 2 investor companies assessee submitted the form of share allotments , ITR acknowledgements and ROC master data before the Ld. Commissioner of income Tax along with the copy of share application and confirmation, the copy of the board resolution, allotment letter submitted before the registrar of companies. Based on above, Ld. Commissioner of Income Tax (A) held that that there is no doubt about the identity of the said application and the genuineness

ITA 4304 DEL 2012 PRASANDI BIOTECH PARK PRIVATE LIMITED A Y 2009_10 - COPY of the transactions regarding the said application money which is proved by the confirmation and the bank account submitted by the Assessee. He further referred to the balance sheet of those companies and made a reference to the capital and free reserve of those investor company and held that they have they are creditworthy to make such kind of investment therefore deleted the addition of Rs. 1 crore. On the issue of agricultural income he held that as the assessing officer on the 1st page of the assessment order has himself stated that the activity of the assessee is an agricultural therefore based on the relevant letters and other documents produced by the appellant he deleted the addition. 4) Aggrieved by the order of the Commissioner of Income Tax (Appeals) the revenue is in appeal before us. Though there are 3 effective grounds raised in the appeal of the revenue , however ground No. 1 and ground No. 2 are related to the deletion of addition of Rs. 1 crore made by the Ld. assessing officer under section 68 of the Act with respect to the 2 investor companies. 5) Before us the LD. DR submitted that the Ld. assessing officer has made the addition based on enquiry made by him and Inquiry was done from the investigation wing of the Income Tax Department. Further on the ITA 4304 DEL 2012 PRASANDI BIOTECH PARK PRIVATE LIMITED A Y 2009_10 - COPY spot enquiry made by the assessing officer both these companies were not found in the given address. It was further submitted that that the assessee company does not have any financial credential to have received the sum of the money at such a huge premium. Further in the case of the Mr. Virendra Jain these companies have been found to be engaged as entry operators. He further submitted the order of coordinate bench in ITA 6991-97/del/2014 dated 03 February 2016 wherein it has been noted that surendra Kumar Jain and Sh. Birendra Kumar Jain are involved in providing accommodation entries. He further submitted and took us through various paragraphs of that particular order. He submitted that these are the appeals filed by the Virender Kumar Jain and Mr. Surinder Kumar Jain. In addition, the coordinate bench has set aside the whole issue back to the file of the assessing officer. Therefore his submission was that as in the case of Mr. Virendra Kumar matter has been set aside back to the file of the assessing officer it would be better that these appeals should also go back to the assessing officer to make a coordinated Inquiry. It was also his submission that in case of the investor company assessee could not produce the directors of the company and therefore the production of directors and there verification is a ITA 4304 DEL 2012 PRASANDI BIOTECH PARK PRIVATE LIMITED A Y 2009_10 - COPY necessary ingredient to decide the genuineness of the transaction. 6) Despite notice none appeared on behalf of assessee therefore we proceed to decide the issue on basis of material available on record. 7) We have carefully considered the contentions of the Ld. DR and perused the orders of Ld. assessing officer as well as the Ld. Commissioner of Income Tax (Appeals). Ld. DR also produced the order of the coordinate bench in case of Sh. Birendra Jain for assessment year 2005 – 06 to 2011 – 12 wherein it is accepted that since Surinder Kumar Jain and Sh. Birendra Jain are involved in providing accommodation entries these has been found by the Income Tax Department based on search carried out at their group concern on 20 November 2010. On perusal of that order it is apparent that Shri Birendra Kumar and Surinder Kumar Jain are engaged in the business of providing entries. Where about of two investor companies are also related to those parties, which is evident from the report of the investigation wing of the Income Tax Department. Further during the course of assessment proceedings the assessee did not produce any of the directors of the company despite asked by the assessing officer. The Ld. CIT(A) has deleted the addition on perusal of the same material without making any Inquiry himself

ITA 4304 DEL 2012 PRASANDI BIOTECH PARK PRIVATE LIMITED A Y 2009_10 - COPY despite substantial enquiry has been made by the assessing officer and investigation wing of the Income Tax Department. Despite opportunities granted by the assessing officer the assessee could not produce the directors of those companies as well as the whereabouts of those companies and what are the businesses and how they have built so much of capital. Learned CIT (A) has adopted very naive approach in dealing with the whole issue , he just relied on the documents produced by the assessee such as the Income Tax return acknowledgement, copies of the balance sheet and the copy of the board resolution for the application of the shares as well as the allotment return filed by the companies. We are of the view that ROC data of the companies are not proof of the identity of the company, it is merely finding name of the company, which was registered with the registrar of companies. It does not establish that such company is in existence in the year in which the credit entries are appearing in the books of the other parties. Merely existence of these companies on website of Ministry of corporate affairs does not show in anyway whether these companies are really in existence or not because once the company is registered its name appears on that website until the name is struck off either by the registrar or on the specific request of the company.

ITA 4304 DEL 2012 PRASANDI BIOTECH PARK PRIVATE LIMITED A Y 2009_10 - COPY

Therefore, such ROC data does not prove even the existence of those companies. It is necessary to see whether they are active company and filing the various return such as balance sheet etc and annual returns to the ROC by making routine compliances with the registrar of companies regularly or not then only some credential can be laid on the companies being on the website of the Ministry of corporate affairs, otherwise not. In view of above facts and decision of the coordinate bench in case of Shri Virendrakumar jain and Surinder Kumar Jain it is apparent that they are engaged in providing accommodation entries and investigation wing of the Income Tax Department has stated that investor companies are belonging to that group. Therefore in the interest of Justice the matter is sent back to the file of the assessing officer to coordinate with the assessment proceedings of Mr. Virendra jain and Mr. Suriender jain which are set aside by the order of the coordinate bench to examine whether these companies are involved in providing accommodation entries through those Sh. Birendrakumar and shri Surinder Kumar Jain and then decide the issue of afresh on merit de novo. That investigation may be carried on by the assessing officer with respect to the directors of those investor companies also if they are produced before the ITA 4304 DEL 2012 PRASANDI BIOTECH PARK PRIVATE LIMITED A Y 2009_10 - COPY assessing officer by the assessing or are available, and to grant proper opportunity of hearing to the assessee. In the result ground No. 1 & 2 of the appeal is allowed for statistical purposes with above direction. 8) Ground No. 3 of the appeal of the revenue is against deletion of the addition of Rs. 391650/- being agricultural income shown by the assessee when there are no evidence of sale of agricultural produce or assessment of agricultural income in the hands of the assessee company. This addition has been deleted by the CIT (A) based on the documents produced before him as well as assessment order for assessment year 2007 – 08. However these additional evidences have been admitted by the CIT (A) without making any specific reference or reasonable cause and further it is also not clear whether those evidences were available with the AO or not. It was also not certain how CIT (A) has come to know that Assessee Company is engaged in the agricultural activities without enquiring in to agricultural activities undertaken by the company when it does not have much of the assets or evidences of sale for such activities. The assessing officer stated that there are no evidences produced by the assessing before him to show sale of agricultural produce. It is also apparent that no such records are also available before the CIT (A) . In view of this, this ground of ITA 4304 DEL 2012 PRASANDI BIOTECH PARK PRIVATE LIMITED A Y 2009_10 - COPY appeal is also set aside back to the file of the assessing officer to re-examine the whole aspect of agricultural income shown by the assessee and to verify reference made by CIT (A) of assessment order for A Y 2007- 2008. The AO may conduct Inquiry as he deems fit in this regard and then confront the assessee with the evidence gathered to rebut them by affording proper opportunity of hearing. In the result ground No. 3 of the appeal is also allowed with above direction. 9) In the result appeal of the revenue is allowed for statistical purposes. Order pronounced in the open court on 13/06/2016. -Sd/- -Sd/- (H. S. SIDHU) (PRASHANT M MAHARISHI ) JUDICIAL MEMBER ACCOUNTANT MEMBER AK Keot Date :- 13/06/2016 Copy of the Order forwarded to: 1) Appellant 2) Respondent 3) CIT 4) CIT(A) 5) DR By order Assistant Registrar

ITA 4304 DEL 2012 PRASANDI BIOTECH PARK PRIVATE LIMITED A Y 2009_10 - COPY