PARAG V.MEHTA,MUMBAI vs. DCIT ,CC -43, MUMBAI

These seven cross appeals by assessee and Revenue are arising from the consolidated order of Commissioner of Income-Tax (Appeals)-49, Mumbai, dated 30.01.2015 for A.Ys. 2005-06 to 2011-12. Since, all appeals pertain to same assessee and on almost similar issue, so they are being disposed of by common order for the sake of convenience.

“On the facts and circumstances of the case and in law: 1. (a) The Learned CIT (A) erred in holding that the appellant was the main person organizing bogus bills for Washington Software Ltd. and consequently erred in estimating commission deemed to have been received at 3% of bogus bills less 1% having been parted, thus directing 2% of bogus bills issued to be the income of the year.

(b) The Learned CIT (A) erred in confirming the above addition on presumptive basis despite holding in the order that there was no material or evidence to substantiate the same.

(c) The Learned CIT (A) erred in relying upon the statement of Sanjay Sonawani dated 16/03/2011 to 1649 & 2507 to 2513/Mum/15 A.Ys. 05-06 to 11-12 (Shri Parag V. Mehta) Page 3 and disregarding the subsequent statements, submissions, attendances made by him before AO which confirm that the statement dated 16/03/2011 was retracted upon. The Learned CIT (A) erred in holding that retraction, if any, should be done in a day or two and the subsequent statement made after 25 days and also other subsequent ones should not be given credence to.

2. The Learned CIT (A) erred in not deleting addition of Rs. 9,53,250/- being 2% i.e. Rs. 3,81,300/- on substantive basis and 3% being Rs. 5,71,950/- on protective basis, though the same was deleted by him in the case of Sanjay Sonawani and also not giving a finding on the same for deletion or confirmation though Ground No. 3 questioning the above was raised before him.”

2.1 In for A.Y.2005-06, Revenue has filed the appeal on the following ground:

“1. On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in restricting the addition made on commission received for providing bogus bills at 2% of the total turnover, as against 5% adopted by the AO, without appreciating the fact that the CIT(A) did not consider the facts and the issues of addition made by the AO.

2. On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in restricting the addition made on commission received on the balance bogus transaction at 2% of the total turnover, as against 5% adopted by the AO, without appreciating the fact that the CIT(A) did not consider the facts and the issues of addition made by the AO.”

“7.0 The facts of the case, the grounds of appeal, the stand taken by the Assessing Officer in the assessment orders and the written submissions filed by the appellant have been carefully considered.

7.1 In this case, there is no dispute about accommodation entries provided by M/s Washington Software Ltd., in which Shri Sonwani is the director cum chairman. However, as per the first statement recorded from Shri Sanjay Sonwani on 16.3.2011, it was categorically stated by him that since there were financial crisis and other legal problems in the case of M/s Washington Software Ltd., he took the opportunity offered by Shri Parag Mehta to use the name of M/s Washington Software Ltd., for providing accmmodation entries in respect of the parties known to Shri Parag Mehta for a commission of 1% on bogus bills issued. The issuing of bogus bills and other related activities have been carried out in the office premises of Shri Parag V Mehta as evidenced by the seizure of documents and the computer data on 22.3.2011. Shri Parag Mehta merely states that the office premise was provided to Shri Sanjay Sonwani to carry on the business of bogus billing because Shri Sanjay Sonwani is his friend. The A.O. mentioned in the assessment order that in normal circumstances, no one provides his office premises and his staff and the computers to be misused by his friend for issuing bogus sale bills. I am in agreement with the views of the A.O to 1649 & 2507 to 2513/Mum/15 A.Ys. 05-06 to 11-12 (Shri Parag V. Mehta) Page 5 because though Shri Parag V Mehta refers Shri Sanjay Sonwani as a friend but nowhere in the statement of Shri Sanjay Sonwani, Shri Parag V Mehta was referred as a friend. Shri Parag V Mehta was referred to as a Chartered Accountant, who gave the idea to Shri Sanjay Sonwani to lend the name of the company M/s Washington Software Ltd., for issuing bogus bills for commission for his clients. In ordinary circumstances, nobody allows the office premises to be used by a third party, who may or may not be a friend to be used for fraudulent means until otherwise the person himself is party to the activity. In such circumstances the fruits of the joint activity are shared by both the parties. In this case, the appellant not only provided his office premises but also provided his men and material including the computer. This only shows that the appellant is also a party to the fraudulent business of earning commission by providing accommodation entries.

7.2 The appellant also submitted that he was unaware of Shri Sanjay Sonawani misusing his computer and the staff. It is difficult to believe that Shri Sanjay Sonawani was misusing the staff and the computer in the business premises of the appellant without his knowledge. In such circumstances, some action must have been taken against the staff or against Shri Sanjay Sonawani by the appellant which is not the case here.

7.3 There are three statements recorded from Shri Sanjay Sonwani on the following dates, 16.3.2011, 12.4.2011 and 12.05.2011. The appellant submitted that the statement recorded from Shri Sanjay Sonwani on 16.3.2011 should not be taken into account since Shri Sanjay Sonawani himself in the later statements recorded on 12.04.2011 and on 12.05.2011 clarified that he was misunderstood and misinformed and out of confusion he stated erroneously that Shri Parag Mehta was responsible for issuing bogus bills. The appellant also submitted that he always stated that he was not involved in issuing bogus bills in all the statements recorded from him. In view of the statements recorded from Shri Sanjay Sonwani on 12.04.2011 and 12.05.2011 and also because of his to 1649 & 2507 to 2513/Mum/15 A.Ys. 05-06 to 11-12 (Shri Parag V. Mehta) Page 6 own statements recorded on 22.03.2011 and on 25.03.2011, the appellant argued that he was not part of the business of issuing bogus bills. The above submission of the appellant is not acceptable for the following reasons. In the assessment order the A.O mentioned that the phone call records were called for by the Investigation Wing and on careful examination of call duration report, for the period prior to 22.03.2011, Shri Parag Mehta was in touch with Shri Sanjay Sonwani for one or two minutes in a day whereas after search period i.e. more specifically from 22.3.2011 the call duration between them increased upto 15 minutes each call. The A.O. inferred that the calling of Shri Sanjay Sonwani by Shri Parag Mehta shows that Shri Sanjay Sonwani was under constant influence of Shri Parag Mehta. In this regard, I am of the opinion that though the actual call records only could prove the nature of dialogue between the parties, however, the sudden spurt in the duration of the calls for 15 minutes or so indicate that there was a serious discussion between the parties which must have had influence on Shri Sanjay Sonwani in the statements recorded from him on 12.04.2011 and on 12.05.2011. It is also crucial to examine which of the statements recorded from Shri Sanjay Sonwani should be relied upon. Is it the first statement recorded from him on 16.3.2011 or the subsequent statements recorded from him on 12.04.2011 and 12.05.2011? In this regard, I am of the view that if the appellant goes back on the first statement, the onus is upon him to give the reasons for going back on the first statement and also simultaneously establish how the contents of the first statement are incorrect. The only submission of Shri Sanjay Sonwani in this regard is the first statement was given under confusion and he was misunderstood and misinformed. If the assertion of confusion and misunderstanding is true, it is expected From Shri Sanjay Sonwani to state so immediately after the conclusion of the first statement recorded on 16.3.2011, perhaps the very next day or within a few days. Shri Parag Mehta also submitted in the course of appeal proceedings that pressure was built up on Shri Sanjay Sonwani to declare that Shri Parag Mehta was the main person behind such dealings. The submission of to 1649 & 2507 to 2513/Mum/15 A.Ys. 05-06 to 11-12 (Shri Parag V. Mehta) Page 7 Shri Parag Mehta is also not acceptable because there is no evidence to show that pressure was applied while recording statement on 16.3.2011. Even Shri Sanjay Sonwani did not say in the subsequent statements recorded from him that there was pressure applied on him on 16.3.2011 to give evidence against Shri Parag V Mehta. There is nothing on record to show that the officer concerned had a malafide intention to implicate Shri Parag V Mehta. If the statement was given under pressure nothing prevented Shri Sanjay Sonwani to state so within a few days after recording the statement. The sequence of the facts stated by Shri Sanjay Sonwani in the statement recorded from him on 16.3.2011 looks more credible and believable since the entire operation was carried out in the business premises of Shri Parag V Mehta by using the staff and computer of Shri Parag V Mehta. Since neither the appellant nor Shri Sanjay Sonwani established with evidence that the contents of the statement recorded on 16.3.2011 are not true, evidentiary value of the statements recorded on 16.3.2011 is not lost. In view of the above, the statements recorded from Shri Sanjay Sonwani on 12.04.2011 and 12.05.2011 could not be relied upon.

7.4 It is also mentioned in the assessment order that Shri Sanjay Sonwani in the subsequent statements put the blame on Shri Rohidas Kumbarkar, who is deceased and is not available for cross verification. The A.O stated that this is a well thought out move to extricate himself or to save Shri Parag Mehta from a difficult situation. It is also mentioned in the assessment order that Shri Sanjay Sonwani in the statement recorded in December 2011 while requesting him to give a client list he furnished the same only after receiving it from Shri Parag Mehta by an e-mail. It is also relevant to bring on record that the blank signed cheques and RTGS forms were found and seized from the office premises of Shri Parag Mehta. The accounts and the invoices and other correspondences of M/s Washington Software Ltd. were also found in the computers of Shri Parage Mehta. to 1649 & 2507 to 2513/Mum/15 A.Ys. 05-06 to 11-12 (Shri Parag V. Mehta) Page 8 7.5 During the appeal proceedings the appellant submitted that Shri Vijay Berlia, General Secretary, Apeejay, in the statement recorded from him stated that he was not in touch with Shri Parag V Mehta for the last 21 years but on the contrary he knew Shri Sanjay Sonwani. The above submission of the appellant has not been proved. Copy of such statement has not been produced. On the contrary the A.O mentioned in the assessment order that Shri Vijay Berlia in the statement recorded from him stated that Shri Parag Mehta is son of Shri Shri Vinod Mehta, his friend and Chartered Accountant and he is also director of one of the group companies namely M/s Martin and Harris.

7.6 The above facts clearly indicate that Shri Parag V Mehta, the appellant, is the main person. He was using the name of M/s Washington Software Ltd., and paid commission to Shri Sanjay Sonawani at the rate of 1% on the bogus sale bills. Shri Parag V Mehta would nol have facilitated such activity for nothing but for earning commission income on the same. It is clear that 1% of commission income was parted with Shri Sanjay Sonawani. The CIT (A) also confirmed 1% commission income in the case of M/s.Washington Software Ltd., and simultaneously deleted the same addition made in the case of Shri Sanjay Sonawani on the basis of the statement recorded from Shri Sanjay Sonawani u/s 131 Of the Act on 16.3.2011 wherein he had categorically stated that commission income @ 1% was earned by M/s Washington Software Ltd. on the bogus bills issued. The appellant also submitted that the 5% commission income brought to tax in the case of the appellant is also taxed in the case of M/s Washington Software Ltd., and in the case of Shri Sanjay Sonawani. The submission of the appellant is not acceptable. It is true that the commission income assessed in the case of M/s Washington Software Ltd., and its director Shri Sanjay Sonawani is same and that is why it was confirmed only in the case of the company but not in the case of individual in the earlier orders passed by the CIT (A) but the facts in the case of Shri Parag Mehta, the appellant are different. Shri Parag V Mehta earned commission income in the business of to 1649 & 2507 to 2513/Mum/15 A.Ys. 05-06 to 11-12 (Shri Parag V. Mehta) Page 9 providing accommodation entries and parted 1% to Shri Sanjay Sonwani as income of M/s Washington Software Ltd. This shows that Shri Parag V Mehta had earned commission income which is more than 1% on the bogus sale bills. The A.O has taken 3% substantively and 2% protectively totaling to 5% on bogus sale bills as the commission income of Shri Parag V Mehta. It is mentioned in the assessment order that on the basis of market enquiries 5% commission income was taken, however, there is no evidence brought on record as the basis for market enquiries conducted. In these circumstances, and on the basis that the appellant had received commission income which should be more than what is parted with Shri Sanjay Sonwani and also by taking into account the office premise of the appellant was given freely along with the staff and computer and also considering the fact that the clients of the appellant were beneficiaries and also for the reasons that the document seized were found in the office premises of the appellant, I am of the view that Shri Parag V Mehta is the main person in the business of issuing bogus bills and his commission income is accordingly reasonably estimated at 3% of the bogus sale bills issued. Since out of 3% commission income determined as above, 1% has been parted with Shri Sanjay Sonwani, 2% commission income on net basis is hereby directed to be taken as commission income of the appellant for each of the assessment years from 2005-06 to 2011-12.

In the result, the appeals are partly allowed.”

4.1 Both parties are before us against their respective grievances. Learned Authorized Representative submitted that CIT (A) erred in holding that asseseee was the main person organizing bogus bills for Washington Software Ltd. and consequently erred in estimating commission deemed to have been received at 3% of bogus bills less 1% having been parted, thus directing 2% of bogus bills issued to be the income of the year in the hands of assessee. CIT(A) erred in to 1649 & 2507 to 2513/Mum/15 A.Ys. 05-06 to 11-12 (Shri Parag V. Mehta) Page 10 confirming the above addition on presumptive basis despite holding in the order that there was no material or evidence to substantiate the same. CIT(A) erred in relying upon the statement of Sanjay Sonawani dated 16.03.2011 and disregarding the subsequent statements, submissions, attendances made by him before Assessing Officer which confirm that the statement dated 16.03.2011 was retracted upon. CIT(A) erred in holding that retraction, if any, should be done in a day or two and the subsequent statement made after 25 days and also other subsequent ones should not be given credence to. CIT (A) erred in not deleting addition in question though the same was deleted by him in the case of Sanjay Sonawani. Learned Authorized Representative also submitted that in case of M/s. Apeejay Education Society & groups in question, recipients of alleged accommodation entries have been accepted to be genuine.

4.2 On the other hand, ld. Departmental Representative submitted that assessee is main person behind such dealings. Shri Sanjay Sonawani is being used by assessee as front-man for providing accommodation entries. So, Assessing Officer has rightly made addition on account of earning commission @ 5% of bogus sales made for A.Ys. 2005-06 to 2011-12. In assessment order, Assessing Officer rightly held that assessee was providing accommodation entries to needy parties by issuing bogus sale bills by earning commission income for the service rendered. Assessing Officer rightly brought into tax 5% commission to 1649 & 2507 to 2513/Mum/15 A.Ys. 05-06 to 11-12 (Shri Parag V. Mehta) Page 11 income from bogus billing being 3% as substantive basis and 2% being on protective basis. So, the order of Assessing Officer should be confirmed.

5.2 In appeal the CIT(A) sustained the addition to the extent of 3% of turnover less 1% paid to WSL and therefore sustained 2% of turnover as addition in hands of the assessee. Assessee is in appeal against the sustaining addition of 2% while department is in appeal against deletion of 2% made protective basis.

ITA Nos.1643 to 1649 & 2507 to 2513/Mum/15 A.Ys. 05-06 to 11-12 (Shri Parag V. Mehta) Page 13 6. The stand of assessee has been that assessee had no control over issue of accommodation entries. All business activities, if any, were done by Sanjay Sonawani being Director of WSL as mentioned above. No material, evidence was found from assessee or from Sanjay Sonawani to establish the fact that Parag Mehta was master mind in issuing accommodation entries. No material has been found that assessee made money of whatever type in this business of accommodation entries at all. Assessing Officer has not examined from the parties to whom bills were issued as to whether they were accommodation bills and whether Parag Mehta was involved or whether alleged recipient of accommodation entries knew Parag Mehta. In all the subsequent statements and correspondences made by Sanjay Sonawani, he denied the role of Parag Mehta. Thus, the issuer of entries denied the role of assessee and acceptors having never admitted that he was involved, there can be no basis in allegation that assessee was at all involved and any addition be made, so as to make addition in hand of assessee. In case of M/s. Apeejay, the biggest party to whom alleged bogus sales bills have been claimed to be issued by WSL, the Hon’ble Punjab and Haryana High Court have held that there is no truth in statement of Sanjay Sonawani of having issued bogus bills when all the material as stated in the bills were not found in the premises of M/s. Apeejay and it being a reputed well known school could not have dealt in obtaining bogus bills. In case of M/s. Apeejay Education to 1649 & 2507 to 2513/Mum/15 A.Ys. 05-06 to 11-12 (Shri Parag V. Mehta) Page 14 Society vs. ACIT in ITA Nos.712 to 714 (Asr)/2014 & others, wherein ITAT Amritsar Bench has analysed each and every statement of Sanjay Sonawani and held at page no.109 para 28 as under: "It is evident that all the four statements of Shri Sanjay Sonawane are riddled with discrepancies. There are assertions and retractions, not only on one point but with regard to numerous issues. He has been consistently and continuously shifting his stand. He is thus, decidly a very shifty and inconsistent person as a witness."

At para 30 of this order, Amritsar Tribunal held as under:

"He indulged in double speak in all his statement, leading to the inexorable conclusion that he was not a Truthful man as witness at any stage and is impossible to decide as to on which occasion he was truthfull. His testimony is not at all worthy of credence and acceptance and his evidence has erroneously been accepted by CIT(A)."

Further on merits, Tribunal held at para 71 of the order that the Software that was purchased from WSL was installed on the serve of M/s. Apeejay and the said server was impounded by department a survey proceedings. Further, at para 73, they held that the names of WSL appears in the source code of the software. Also at para 75, Tribunal held that the employee of Apeejay, namely, Amitara Misra has stated on oath that software stood installed in serve impounded by department. Also there is an expert report confirming the same fact of installation of software at M/s. Apeejay. Further, at para 85 of same order, Tribunal held that addition made on suspicious or alleged statement, in view of to 1649 & 2507 to 2513/Mum/15 A.Ys. 05-06 to 11-12 (Shri Parag V. Mehta) Page 15 direct evidence place on record to the contrary, cannot be sustained. Also the money paid by Apeejay to WSL has never been returned to Apeejay while department has shown proof that money paid by Apeejay to WSL went to other parties, it shows that transaction of Sanjay Sonawani as a Director of WSA in statement stating of bogus entries cannot be trusted that too why payments made through RTGS. So, statement of Sanjay Sonawani has not been relied by Co-ordinate Bench, Amritsar as discussed above. So, following the same analogy, first statement of Sanjay Sonawani cannot be made basis for making addition in question in hand of assessee. Moreover, in subsequent statement, said Sonawani has himself has rightly retracted that assessee was not concerned with any activity whatsoever of WSL company run by Sanjay Sonawani. From the facts narrated above, we find that assessee simply provided table space for running his business to Sanjay Sonawani being Director of WSL. Without prejudice to the finding of genuine transaction between WSL and M/s. Apeejay, there is nothing on record to suggest that assessee was involved in the said transaction in any manner whether bogus or genuine. In facts and circumstances, no addition is warranted in case of assessee. Same is directed to be deleted. This take cares of issues raised in cross appeals of assessee and Revenue.

ITA Nos.1643 to 1649 & 2507 to 2513/Mum/15 A.Ys. 05-06 to 11-12 (Shri Parag V. Mehta) Page 16 8. Similar issue arose in assessee’s appeals in 1644/Mum/2015 for A.Ys.2006-07 to 2011-12 and Revenue’s appeals in to 25013/Mum/2015 for A.Ys. 2006-07 to 2011-12. Facts being similar, so following same reasoning, impugned addition in hand of assessee for all years on same line, are directed to be deleted.

Pronounced in the open Court on this the 26th day of August, 2016.

Sd/- Sd/- (RAJESH KUMAR) (SHAILENDRA KUMAR YADAV) CCOUNTANT MEMBER JUDICIAL MEMBER Mumbai: Dated 26/08/2016 True Copy S.K.SINHA आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. राज�व / Revenue 2. आवेदक / Assessee 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त- अपील / CIT (A) 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, मुंबई / DR, ITAT, Mumbai 6. गाड� फाइल / Guard file. By order/आदेश से,

उप/सहायक पंजीकार, आयकर अपील�य अ�धकरण, मुंबई ।