M/S. RUCHI SAREES PVT. LTD.,SURAT vs. INCOME TAX OFFICER, WARD 2(1)(1), , SURAT

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER ITA Nos. 465, 466, 467 & 468/Srt/2018 (Assessment Years: 2012-13, 2013-14, 2014-15 & 2015-16) (Physical hearing) M/s Ruchi Sarees Pvt. Ltd., I.T.O. RMR & Co. (Chartered Accountants), Ward 2(1)(1), Vs. 7006, World trade Centre, 7th Floor, Surat. Ring Road, Near Udhna Darwaja, Surat-395002 (Gujarat). PAN: AAFCR 2660 H Appellant/ assessee Respondent/ revenue

Assessee represented by Shri Rajesh C Shah, CA Department represented by Shri Anurag Dubey, Sr. DR Date of hearing 21/07/2022 Date of pronouncement 30/09/2022 Order under Section 254(1) of Income Tax Act PER: PAWAN SINGH, JUDICIAL MEMBER: 1. These four appeals by the assessee are directed against the separate orders of learned Commissioner of Income Tax (Appeals)-2, Surat (in short, the ld. CIT(A) all dated 13/04/2018 for the Assessment years 2012-13 to 2015-16. 2. In all these appeals, the assessee has raised certain common ground of appeal. Facts in all the appeals are common, therefore, with the consent of parties, all the appeals were clubbed, heard together and are decided by this consolidate order to avoid the conflicting decision. For appreciation of fact, the appeal for A.Y. 2012-13 in ITA No. 465/Srt/2018 is treated as ‘lead’ case as transaction of unsecured loan

ITA No.465 to 468/Srt/2018 M/s Ruchi Sarees Vs ITO was treated as unexplained cash credit and added under section 68, in this year and in all subsequent three assessment years, the assessing officer disallowed the interest expenses. In this appeal, the assessee has raised following grounds of appeal: “1. The Hon'ble CIT(Appeals)-II, Surat was not justified in confirming the disallowance of interest expenses of Rs. 80,811/- under Section 68 of the Income Tax Act, 1961. 2. The Hon'ble CIT(Appeals)-II, Surat was not justified in confirming the addition made of Rs. 26,00,000/- on account of unexplained cash credit under Section 68 of the Income Tax Act, 1961. 3. The appellant reserves the right to add, alter, amend or withdraw any grounds of appeal.” 3. The assessee vide application filed on 20/05/2022 raised following additional ground of appeal: “The ld. Income Tax Officer has erred in reopening of the case u/s 147 of the Income-tax Act, 1961 and in issuing notice u/s 148 of the Act particularly when the original assessment was completed u/s 143(3) of the Act.” 4. Brief facts of the case are that the assessee company filed its return of income on 28/09/2012 declaring total income of Rs. 4,20,570/-. The case of assessee was selected for scrutiny and assessment was completed on 29/03/2015 assessing total income of Rs. 5,54,995/-. Thereafter, the case of assessee was reopened under Section 147 of the Income Tax Act, 1961 (in short, the Act). Notice under Section 148 dated 21/3/2017 was served upon the assessee to file return of income within 30 days. In response to notice under Section 148 of the Act, the

ITA No.465 to 468/Srt/2018 M/s Ruchi Sarees Vs ITO assessee filed its return of income on 31/5/2017. The reasons of reopening were provided to the assessee vide letter dated 09/06/2017. The Assessing officer made reopening on the basis of information received from DDIT (Inv.), Surat regarding cheque discounting business wherein investigation was conducted in case of Shri Maheshbhai Tulshibhai Patel and Shri Ramesh Rangildas Mehta. On the basis of investigation, it was revealed that the assessee company received loan from Shri Maheshbhai Tulshibhai Patel and Shri Ramesh Rangildas Mehta in Financial year 2011-12 of Rs. 10.00 lacs and Rs. 16.00 lacs respectively and paid interest of Rs. 31,890/- and Rs. 48,921/- on said loans. It was also informed by DDIT (Invt.) that both the parties have confirmed on oath that they have given loan to Ruchi Sarees (assessee) which is accommodation entries and that entries appearing in Form 26AS about the TDS on interest are mere entries. On the basis of such information, the Assessing officer has reason to believe that the income of assessee has escaped assessment. The assessee filed objection against the reopening vide objection dated 17/07/2017 and the same was disposed of vide order dated 19/07/2017. After rejecting objection, the Assessing officer proceeded for assessment. The Assessing officer issued show cause notice as to why the loan taken from Shri Maheshbhai Tulshibhai Patel and Shri Ramesh Rangildas Mehta had been treated as unexplained money. The assesse files its reply on 19/07/2017 and 28/07/2017. The contents of 3

ITA No.465 to 468/Srt/2018 M/s Ruchi Sarees Vs ITO reply of assesse is recorded at page Nos. 3 to 5 of assessment order. In the reply, the assessee in sum and substance submitted that the assessee has availed loan from both the parties which is shown in its books as unsecured loan. The loan is received through account payee cheques. The assessee disclosed full particulars with the name, address and PAN of the lenders. The loan was received through banking channel and the assessee has paid interest thereon. The loan from Maheshbhai was received on 26/12/2011 and was repaid on 14/6/2014 whereas the other loan from Shri Ramesh Rangildas Mehta was taken from his proprietary firm Sunit Trading Company on 30/12/2011 and it was paid on 14/6/2014. There is no allegation of cash deposit against the assessee. The assessee further submitted that the proprietor/director of assessee company (Ruchi Sarees) also taken loan from Shri Maheshbhai Tulshibhai Patel. The same was added in her income under Section 68, however, the addition was deleted by the ld. CIT(A) in appeal No. CAS/II/105/2014-15 as the identity, creditworthiness and genuineness of transaction was proved. Copy of order of ld. CIT(A)-II, Surat was also filed. The assessee also submitted that one of the Director of assessee company also availed loan from Shri Ramesh R Mehta and was paid in A.Y. 2012-13 and Shri Ramesh R Mehta has given loan of Rs. 16.00 lacs to assessee out of fund received from Ruchi Sarees. The assesse also relied upon the decision of Hon’ble Jurisdictional High Court in the case of CIT Vs 4

ITA No.465 to 468/Srt/2018 M/s Ruchi Sarees Vs ITO Ayachi Chandrasekhar Narsangji (2014) 42 taxmann.com 251 (Gujarat) and in DCIT Vs Rohini Builders 256 ITR 230 (Guj). The Assessing officer further noted that the assessee sought cross examination of Shri Maheshbhai Tulshibhai Patel and Shri Ramesh Rangildas Mehta. The statements of both the persons were recorded by Assessing Officer by issuing summons under Section 131 of the Act on 21/08/2017 and 22/08/2017. After recording their statements, notice was issued to the assessee to cross examine both the parties on 24/08/2017 and on 24/08/2017. Shri Anil K Agrawal, one of the Director of assessee company cross examined both the parties wherein they have confirmed their earlier statement made before the DDIT, Surat that their books of account are not genuine and they got only commission on account of cheque discounting. The Assessing Officer again issued show cause notice as to why the entire aggregate of loan as well as interest paid by assessee be not added to the income of assessee. The assessee again filed reply on 29/08/2017, the contents of which are recorded at page No. 6 and 7 of assessment order. In the reply, the assessee submitted that in cross examination of Shri Maheshbhai Tulshibhai Patel and Shri Ramesh Rangildas Mehta regarding cheque given to assessee, the director of assessee asked them to show any cheque which was discounted, Shri Rameshchand Mehta replied “I don’t know”. When same question was asked to Shri Maheshbhai Patel, re replied that he had given cheque to assessee 5

ITA No.465 to 468/Srt/2018 M/s Ruchi Sarees Vs ITO against which he has received commission. The assessee explained that in the cheque discounting business, the party first gives cheque to the discounter and they received cash from the customer where the commission is deducted from the cheque amount but in case of assessee, Shri Ramesh Chand Mehta and Shri Maheshbhai Patel have given cheque to the assessee which was repaid through banking channel and no cash transaction is involved. Thus, the whole transaction does not fit in the common parlance of cheque discounting transaction ambit. Shri Maheshbhai Patel in his statement stated that he does not have any idea, thus he was hiding something else he might have given this statement. The assessee has paid interest to both the parties and deducted TDS. Shri Maheshbhai Patel provided loan by way of two cheques of Rs. 5.00 lacs each on 24/01/2011 and 14/02/2011 to Ruchi Sarees who is sister concern of assessee company (Ruchi Sarees Private Ltd.). The loan was repaid to Shri Maheshbhai Patel on 22/12/2011 along with interest amount. This fund was used by Shri Maheshbhai Tulshibhai Patel to provide loan to the assessee on 26/12/2011. The Assessing Officer made addition in case of Ruchi Sarees for A.Y. 2011-12 which was deleted by ld. CIT(A), so the source of fund is established. Both the persons might be involved in cheque discounting business, but that does not mean that they cannot have surplus fund and provide that surplus fund as a loan to the assessee. In case of assessee, fund was received and was paid through banking 6

ITA No.465 to 468/Srt/2018 M/s Ruchi Sarees Vs ITO channel. In only cheque discounting business transaction, amount received is never repaid which clearly proves the genuineness of transaction. In case of assessee, first the loan was given by both the parties and it was paid with interest. The submission with explanation of assessee was not accepted by the Assessing officer and held that both the persons who were involved in cheque discounting stated that they have not advanced any loan to the assessee and it was mere entries. The mere payment of cheque is not sacrosanct nor can it make a non-genuine transaction as genuine. The Assessing officer treated the transaction of loan as unexplained cash credit under Section 68 of the Act in the assessment order dated 31/08/2017. 5. Aggrieved by the additions in the assessment order, the assessee filed appeal before the ld. CIT(A). Before the ld. CIT(A), the assessee filed detailed written submissions. The submission of assessee is recorded in para 5 of order of ld. CIT(A). In the submission, the assessee reiterated the similar contention as stated before the Assessing Officer. The ld. CIT(A) after considering the contents of assessment order and the written submission of assessee, upheld the addition under Section 68 as well as disallowance of interest payment. While confirming the additions/disallowance, the ld. CIT(A) held that when the Assessing Officer made inquiries from lenders who admitted that unsecured loan given to the assessee were only paper transactions and in cross examination, they again admitted it is an accommodation entry. The 7

ITA No.465 to 468/Srt/2018 M/s Ruchi Sarees Vs ITO Assessing Officer had brought evidence on record to highlight that the unsecured loan availed by assessee from two entry providers actually represent the accommodation entry and the amount of claim to be the loan are not genuine as unsecured loan which is nothing but arranged affairs being pre-ordained series of transactions and upheld the addition. 6. We have heard the submissions of the learned authorised representative (AR) of the assessee and the learned senior departmental representative (Sr DR) for the revenue and have also gone through the orders of the lower authorities. The ld. AR of the assessee submits that he has raised additional ground of appeal challenging the validity of reopening and notice under Section 148 of the Act. The facts relating to additional ground of appeal are available on record and no new fact is to be brought on record. To support his submissions, the ld. AR relied upon the decision of Hon’ble Apex Court in the case of NTPC Vs CIT (1998) 229 ITR 383 and Jute Corporation of India Ltd. Vs CIT (1991) 187 ITR 688. 7. On the other hand, the ld. Sr. DR for the revenue submits that no ground of appeal was raised by assessee before the first appellate authority. No facts regarding challenging the validity of notice under Section 148 and reopening under Section 147 of the Act is emanating from the order of ld. CIT(A) which is not the ground in the present appeal thus the assessee is not entitled to raised such additional 8

ITA No.465 to 468/Srt/2018 M/s Ruchi Sarees Vs ITO ground of appeal which was never agitated before the ld. CIT(A). In the short rejoinder submission, the ld. AR of assessee submits that the facts related to validity of reopening is available on the assessment record and they are not bringing any new facts on record. All the facts are emanating from the order of Assessing officer and the ground of appeal raised by assessee goes to the root of the case. 8. We have considered the rival submissions of the parties and have gone through the orders of the lower authorities carefully. We find that the case of assessee was reopened within four years from the end of the relevant assessment year. The case of assessee was reopened on the basis of information of DDIT (Inv.), Surat that the assessee is a beneficiary of cheque discounting transaction. We further find that before the Assessing officer, the assessee has filed objection against the reopening which was disposed of by the Assessing officer in a speaking order. No such ground of appeal was raised by assessee before the ld. CIT(A). Thus, the ld. CIT(A) have no occasion to consider such fact on validity of reopening under Section 147 of the Act. Even otherwise, we find that the assessee has not placed on record the copy of rejection of objection filed by Assessing officer to substantiate or challenge such rejection. In our view, the validity of reopening or invalidity of notice are mixed question of fact and which cannot be raised at this stage in absence of any cogent material or evidence which make clearly suggest that the reopening of validity of 9

ITA No.465 to 468/Srt/2018 M/s Ruchi Sarees Vs ITO notice is not in accordance with law, therefore, we are of the view that the necessary fact and law are not emanating from the order of ld. CIT(A). Therefore, additional ground of appeal raised by assessee is dismissed. 9. On the merit of addition, the ld. AR of the assessee submitted that the assessee availed unsecured loan of Rs. 10.00 lacs from Maheshkumar Tulsidas Patel on 26/12/2011 and Rs. 16.00 lacs from Sunit Trading Company on 30/12/2011. The assessee paid interest to both the parties. On the interest payment, the assessee made TDS as per rules. The lender enjoyed the interest and included the interest income in their return of income. Unsecured loan from Maheshkumar Tulsidas Patel was repaid on 15/4/2014 with interest. Similarly, loan from Sunit trading company was also repaid on 14/6/2014 with interest. The confirmation of loan is filed, which is on record. In case of assessee, the original assessment was completed under Section 143(3) on 25/3/2015. The transaction of loan was accepted after proper verification of both the loans. Loan of Maheshkumar Tulsidas Patel was debited in the bank account of lender on 27/12/2011. The lender has given loan of Rs. 10.00 las out of his amount credited in his bank account of Rs. 10,77,819/- on 24/12/2011. The said credit was on account of loan return by sister concern of assessee namely Ruchi Sarees (proprietary concern of Anuradha Agarwal who is director of assessee). The ld. AR submits that original loan in case of Ruchi Sarees 10

ITA No.465 to 468/Srt/2018 M/s Ruchi Sarees Vs ITO was added under Section 68 in the scrutiny assessment under Section 143(3) of the Act. However, on appeal, the addition was deleted by the ld. CIT(A) and on further appeal by the revenue, the same was dismissed by the Tribunal in ITA No. 1536/Ahd/2016 dated 22/03/2021. The copy of assessment order in case of Anuradha Agarwal, proprietor of Ruchi Sarees, order of ld. CIT(A) is also filed. and order of Tribunal in ITA No. 1536/Ahd/2016 is filed. For the loan from Sunit Trading Company, the ld. AR for the assessee submits that the loan was debited in the bank account of lender on 31/12/2011. The said loan was also given out of credit in his bank account of Rs. 17,24,511/- on 24/11/2012. The credit in the lenders’ bank account was also on account of loan returned by the sister concern of assessee firm Ruchi Sarees (proprietary concern of Anuradha Agarwal). During the reassessment proceedings, the assessee furnished complete details of loan which was accepted as genuine in the original assessment. The case of assessee was reopened on the basis of statement of third party, which was not supported by any material or evidence. In fact, in the statement, both the lenders stated that they were involved in cheque discounting business. No independent investigation was carried out by the Assessing Officer. Both the lenders in their return of income has shown income either from civil contractor or as a civil work. The assessee was required to prove the identity, creditworthiness and genuineness of transactions. The identity of the persons was not in 11

ITA No.465 to 468/Srt/2018 M/s Ruchi Sarees Vs ITO dispute. The assessee has shown the source of lender having sufficient credit. To prove the genuineness, the assessee shown that the interest payment was made by deducting tax at source till the repayment of loan. Thus, the assessee has proved all three conditions. The assessee has shown relevant entries in the bank passbook/bank statement about the receipt of loan, payment of interest and repayment of loan. Thus, the assessee has proved the genuineness of transaction. The only allegation against the assessee was that the lender made statement that the transaction is not genuine. No supporting evidence was filed. The Assessing Officer after issuing summons to the lender, recorded their statement and all of a sudden, asked the assessee to cross examine. The lender has not disputed the confirmation in their statement. The Assessing officer as well as the ld. CIT(A) completely relied on their statement without bringing any cogent material in support of allegation. In the cheque discounting business, generally, the party gives post-dated cheques to the discounter and in turn, the discounter given money immediately after deducting commission and deposit the cheques on due date to receive his own money bank and account gets settled. When the lender and the Assessing officer made allegation of cheque discounting they must disclose which cheque was given by assessee for discounting. When the lender has claimed that they have discounted the cheque then why he has again received the amount of loan bank on 14/6/2014. If it is presumed that the assessee 12

ITA No.465 to 468/Srt/2018 M/s Ruchi Sarees Vs ITO has given post-dated cheque on 14/6/2014 which depositors/lenders has discounted and given cheque of Rs. 10.00 lacs and Rs. 16.00 lacs in December, 2914 and that he got commission of interest for the period from December, 2011 to June, 2014. Such story is itself wrong and addition under Section 68 cannot be made against the assessee. Before making addition under Section 68, the Assessing Officer has to demonstrate that transaction falls under the ambit of Section 68 of the Act. The ld. AR for the assessee reiterated that the transaction of loan was genuine, the assessee paid interest thereon and refunded the entire amount and that his case is covered by the decision of Hon’ble Gujarat High Court in case of CIT Vs Ayachi Chadrasekhar Narsangji (supra). The case of assessee is also covered by the decision of Tribunal in case of Anuradha Agarwal dated 22/03/2021 in ITA No. 1536/Ahd/2016 wherein similar addition was made by Assessing Officer, however, the ld. CIT(A) deleted the addition vide order dated 21/3/2016 and on further appeal before the Tribunal, the appeal of revenue was dismissed. 10. On the other hand, the ld. Sr. DR for the revenue supported the orders of lower authorities. The ld. Sr. DR submits that the assessee was the beneficiary of accommodation entry provided by Shri Maheshbhai Tulshibhai Patel and Shri Ramesh Rangildas Mehta, proprietor of Sunit trading company. The statement of both the persons who have given alleged unsecured loans were recorded by 13

ITA No.465 to 468/Srt/2018 M/s Ruchi Sarees Vs ITO the Assessing Officer and they have categorically contended that they were engaged in cheque discounting business and provided accommodation entry. The assessee was given opportunity to cross examine such witnesses. The ld. Sr. DR submits that in first year i.e. in A.Y. 2012-13, the Assessing Officer made addition under Section 68 by treating the loan as unsecure cash credit and disallowed interest expenses. In all three subsequent years, the Assessing Officer disallowed interest expenses. 11. We have considered the rival submissions of both the parties and have gone through the orders of lower authorities carefully. We have also deliberated on various case laws relied upon by the ld. AR of the assessee. We find that the case of assessee was reopened on the basis of information received from DDIT (Inv.), Surat that the assessee was received loan from two persons namely Shri Maheshbhai Tulshibhai Patel and Shri Ramesh Rangildas Mehta, proprietor of Sunit Trading Company, who were involved in providing cheque discounting accommodation entries. During the assessment, the Assessing officer asked the assessee to prove the transaction of unsecured loan and genuineness of interest expenses thereon. The assessee contended that he has availed unsecured loan from both the parties and have paid the interest thereon. The unsecured loan was ultimately repaid in June, 2014 to both the parties. The assessee furnished confirmation of loan, statement of bank account of assessee, details of TDS deducted 14

ITA No.465 to 468/Srt/2018 M/s Ruchi Sarees Vs ITO on interest payment and the proof of repayment. The Assessing Officer treated the transaction of loan as unexplained cash credit under Section 68 and disallowed the interest expenses of Rs. 80,811/-. The Assessing Officer while making addition took his view that both the persons who were involved in cheque discounting stated that they have not advanced any loan to the assessee and it was mere entries. It was also held that mere payment of cheque is not sacrosanct nor can it make a non-genuine transaction as genuine. 12. We find that the ld. CIT(A) confirmed the action of Assessing Officer on similar lines. The ld. CIT(A) also held that both the persons have admitted in their statement that they have not given loan to assessee but only provided accommodation entry. We find that during the cross examination, the lender reiterated the transaction of loan was a mere entry. As noted above before ld CIT(A) the assessee filed detailed written submissions and tried to impresses that cheques discounting business is different than the accommodation entry of unsecured loan. We find that the ld CIT(A) while confirming the addition held that on making investigation form lenders, the lenders admitted that unsecured loan given to the assessee were only paper transactions and in cross examination, they again admitted it is an accommodation entry. It was also held that the assessing officer had brought evidence on record to prove that the unsecured loan availed by assessee from two entry providers actually represent the accommodation entry and 15

ITA No.465 to 468/Srt/2018 M/s Ruchi Sarees Vs ITO the amount of claim to be the loan are not genuine as unsecured loan which is nothing but arranged affairs being pre-ordained series of transactions. 13. Before us, the ld. AR of the assessee vehemently submitted that the credit in the bank of lender was on account of unsecured loan returned by Ruchi Sarees, a group concern of assessee. We find that in case of Anuradha Agarwal, who is proprietor of Ruchi Sarees, the Assessing officer made similar addition, however, on appeal before the ld. CIT(A), the additions were deleted and on further appeal before the Tribunal, the appeal of revenue was dismissed. In our view all these submissions of ld AR for the assessee strengthen the case of the assessing officer and the stand of money lender that it was a circular transaction. 14. We find that in the present case the assessing officer has brought sufficient evidence on record to prove the transaction of loan being sham transaction by examining the lender that they were actually engaged in providing mere entry by circular transactions. The assessee was given sufficient opportunity for cross examination of the lender, the lender in their cross examination retreated that they had provided accommodation entry. Such evidence cannot be ignored by us. 15. The ld AR for the assessee vehemently argued that the amount of loan was repaid in subsequent assessment years and relied on the decision of Hon’ble Jurisdictional High Court in the case of CIT Vs Ayachi 16

ITA No.465 to 468/Srt/2018 M/s Ruchi Sarees Vs ITO Chadrasekhar Narsangji (supra). However, in our view the ration of this decision is not applicable on the peculiar facts of the present case as both the lenders in the present case categorically stated before assessing officer that the transactions with the assessee is paper transaction and merely accommodation entry. Thus, in view of the aforesaid discussion, we do not find any merit in the submissions of the ld AR for the assessee that the transaction of unsecured loan was genuine transaction. The ratio of decision in ACIT Vs Anuradha Anil Kumar Aggarwal (supra) is also not applicable on the facts of the present case. In the said case no opportunity for cross examination of witness, who were called by issuing summons, was allowed by assessing officer. However, in the present case, the assessing officer allowed cross examination of entry provider, who remained stand on their examination in chief. Hence, we affirm the order of ld CIT(A), which is assailed in ground No.2 of this appeal. In the result, ground No. 2 of the appeal is dismissed. 16. Ground No.1 relates to the disallowance of interest expenses of Rs. 80,811/-. Considering the facts that we have confirmed the action of lower authorities in treating the unsecured loan as paper/ sham transaction and confirmed the addition under section 68. Therefore, the disallowance of interest expenses is also upheld. In the result, ground No. 1 of the appeal is also dismissed. 17. In the result, this appeal of assessee is dismissed. 17

ITA No.465 to 468/Srt/2018 M/s Ruchi Sarees Vs ITO 18. Now we take ITA No. 466 to 468/Srt/2018 for the A.Y. 2013-14 to 2015-16. In all these appeals, the assessee has challenged the confirmation of disallowance of interest expenses. Considering the fact that we have upheld tha addition under section 68 in lead case and also affirmed the disallowances of interest expenses, following the principles of consistency, these appeals are also dismissed with similar directions. 19. In the result, all these appeals of assessee are dismissed. Order pronounced in the open court on 30th September, 2022 in open court and result was also placed on notice board. Sd/- Sd/- (Dr. ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Surat, Dated: 30/09/2022 *Ranjan Copy to: 1. Assessee – 2. Revenue - 3. CIT(A) 4. CIT 5. DR 6. Guard File By order

Sr. Private Secretary, ITAT, Surat