TaxTMI 
TaxTMI 
2020 (11) TMI 402
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....IT-7, New Delhi. In response to the same, the assessee filed a letter stating that the return already filed u/s 139 may be treated as the return filed in response to the notice u/s 148 of the Act. However, another letter dated 7th August, 2018 was issued to the assessee requesting him to file the return in response to notice u/s 148 of the Act. The assessee ultimately filed its return on 13th August, 2018 declaring a loss of Rs. 4,053/-. Subsequently, the AO issued notice u/s 143(2) and 142(1) of the IT Act and copies of the reasons recorded were also handed over to the assessee. 3. During the course of assessment proceedings, the AO noted that the information was received in the case that the assessee has received accommodation entries from M/s Ambaranuj Finance and Investments Pvt. Ltd. of Rs. 25 lakhs and M/s Zen Tradex Pvt. Ltd. of Rs. 14 lakhs. During the course of assessment proceedings, the assessee filed confirmations from the above two companies and it was submitted that it had taken loans from these two parties. In order to verify the genuineness of these two parties, summons u/s 131 were sent to the above two parties on the address available at ROC website as well as ....
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....he contention of appellant that the proceedings have been initiated by the AO without application of independent mind on the material, if any, provided by the Inv. Wing of the department. In view of the above defects in the compliances the resultant reassessment proceedings are required to be set aside. 3.1 The validity of reassessment proceedings have been confirmed by Ld CIT(A) on basis of a finding of fact given by the Ld CIT(A) that the information from the investigation wing was specific which contains names of companies, cheques number and date of accommodation entries. The above finding is factually incorrect looking into the reasons recorded and on that ground the reassessment proceedings and the impugned assessment order both need be quashed as the reasons being vague, incoherent and indicative of lack of application of independent mind by the AO. 4. The Ld. CIT(A) has erred both in law and in facts of the case in upholding the impugned reassessment proceedings ignoring the fact that the sanction u/s 151 of IT Act as provided with the copy of the reason recorded shows mechanical satisfaction by the Pr CIT, Delhi-7, New Delhi and the Ld. CIT(A) have held t....
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.... need be made, thus the assessed income need be recomputed at Rs. 18,47,036/- 10. The appellant craves leave to add, delete, modify / amend the above grounds of appeal with the permission of the Hon'ble appellate authority. 6. The ld. counsel for the assessee, at the outset, submitted that the jurisdiction to make assessment in this case was assumed on the basis of the seized material from Shri Anand Kumar Jain and Shri Naresh Kumar Jain. Referring to the provisions of section 153C(1)(b) of the IT Act, he submitted that the power to take cognizance of the material seized from third party are exclusively available and such exclusivity rules out action against the assessee under the provisions including u/s 147/148 of the IT Act. For the above proposition, he relied on various decisions as mentioned in the synopsis. He accordingly submitted that since the AO, in the instant case, has not issued notice u/s153C(1) in order to proceed with the case but initiated reassessment proceedings u/s 147, therefore, the notice issued u/s 148 being not in accordance with law, such reassessment should be quashed as void ab initio. 7. The ld. Counsel for the assessee, in his second pl....
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....High Court in the case of CIT vs. Atlas Cycles Industries , 180 ITR 319, he submitted that the Hon'ble High Court in the said decision has held that the Tribunal was right in cancelling the reassessment as both the grounds on which the reassessment notice was issued were not found to exist and, therefore, the Income-tax Officer did not get jurisdiction to make reassessment. He also relied on various other decisions mentioned in the written synopsis according to which the condition precedent for issue of notice for reassessment is that the reason to believe that income has escaped assessment must be based on correct facts. Notice based on wrong facts is without jurisdiction and is to be quashed. 10. In his third alternate argument, the ld. Counsel for the assessee submitted that since there is no specific reference of the seized material from persons searched and how the same was considered for formation of belief is a case of nonapplication of mind. He submitted that there is a general mention of various unspecific seized material including seized papers and digital evidences and also certain statements of individuals connected to Jain brothers. He submitted that in absence of i....
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....er, important details in the form of instrument no. through which cheques/RTGS was accepted by the assessee company, name of the bank from which the accommodation entry was provided, name of the bank in which the accommodation entry was credited and the date of transaction is missing in the reasons. The date of transaction is important to verify whether the transaction falls in the year under consideration which is extremely important piece of information to justify independent application of mind. Referring to the decision of the Delhi bench of the Tribunal in the case of M/s Superior Buildwell Pvt Ltd., vide ITA No.3301/Del/2017, he submitted that the Tribunal has quashed the reassessment proceedings on account of incorrect facts and not mentioning the names of the entities in the reasons recorded. 13. The ld. Counsel for the assessee, in his another plank of argument submitted that there is ambiguity of the nature of deemed escapement of income and also there is contradictions in the proforma for obtaining sanction u/s 151. Referring to copy of the form for recording reasons for initiating proceedings u/s 147 and for obtaining the approval of Addl.CIT/CIT, copy of which is pl....
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....f the law. For the above proposition, he relied on the decision of the Hon'ble Delhi High Court in the case of Mastech Technologies Pvt. Ltd. vs. DCIT, vide Writ Petition No.2858/2016 dated 13.07.2017 where it has been held that issuance of notice u/s 142(1)/143(2) before supplying the reasons and considering objection of the petitioner and passing reasoned order thereon does not meet the requirement of law. Such legal infirmity leads to the inevitable invalidation of all the proceedings that took place pursuant to notice u/s 148. 18. The ld. Counsel for the assessee, in his another plank of argument, submitted that there is error in quantification of income escaping assessment. He submitted that the credit entries accepted by the assessee totaled to Rs. 39 lakhs whereas the reasons recorded shows escaped income of such entries at Rs. 39,00,055/-. The difference of Rs. 55/- in the bank charges paid by the lender while transferring the funds was also considered as income escaping assessment. Therefore, on this count also the reassessment proceedings should be quashed due to non-application of mind. He submitted that the AO in the instant case, has issued notice u/s 147 on the bas....
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....aterial facts necessary for completion of the assessment. Relying on various decisions, he submitted that when the original assessment was completed u/s 143(3) and four years time has passed from the end of the relevant assessment year, no reopening of assessment is possible unless there is allegation by the AO of any failure on the part of the assessee to disclose fully and truly all material facts necessary for the completion of the assessment. 20. Referring to the recent decision of the Hon'ble Supreme Court in the case of NDTV vs. DCIT vide CA No.1008/2020, order dated 3rd April, 2020, he submitted that the Hon'ble Supreme Court in the said decision has quashed the reassessment proceedings for not mentioning the first proviso either in the reasons recorded or in the notice issued u/s 148 of the IT Act. Referring to the decision of the Hon'ble Delhi High Court in the case of BPTP Ltd. vs. PCIT, vide Writ Petition No.13802/2018, order dated 11.01.2020, he submitted that the Hon'ble High Court in the said decision has held that if the AO has failed to perform a statutory duty, he cannot review his decision and reopen on a change of opinion. The reopening is not an empty formali....
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..... He submitted that in the case of M/s Ambaranuj Finance and Investments Pvt. Ltd., the assessment was completed u/s 153A/143(3) by the ACIT, CC-26, New Delhi, vide order dated 28th December, 2017 and there is no adverse finding given by the AO regarding the activities of the above lender company. There is no mention of the lender engaged in providing accommodation entry. Similarly, in the case of loan borrowed from another company i.e., M/s Zen Tradex Pvt. Ltd., the said lender company is engaged in the business as finance company which has given loan to the assessee company after arranging funds and due to this there is credit of identical funds in the bank account of the lender company. It is the allegation of the AO that the assessee did not produce the directors and summons remained uncomplied with and identical amounts were transferred to the accounts of these lender companies on the same date before transfer of the same to the assessee company. Controverting the above allegations of the AO, the ld. Counsel submitted that no show cause notice was issued to the assesseee before such inferences were drawn and, therefore, it amounts to denial of principle of natural justice. Fur....
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....e of Yogender Kumar Gupta vs. ITO, 227 taxman 374, and the decision of the Pune Bench of the Tribunal in the case of Sushil Kumar S Nadkarni, vide ITA No.826/PN/2010, order dated 29.11.2013, he submitted that in the instant case, provisions of section 153C are not applicable and the AO has correctly initiated proceedings u/s 147 on the basis of the information available with him which the ld. CIT(A) has upheld. 26. So far as the argument of the ld. Counsel regarding lack of independent mind by the AO on the information of Investigation Wing is concerned, he submitted that the AO had duly applied his mind before reopening the assessment u/s 147 and he issued notice u/s 148 only after analyzing the information received from the Investigation Wing. There is complete application of mind by the AO in this case. Referring to the decision of the Hon'ble Supreme Court in the case of Raymond Woolen Mills Ltd., Vs ITO, 236 ITR 34, he submitted that the Hon'ble Supreme Court in the said decision has held that in determining whether commencement of reassessment proceedings was valid, it has only to be seen whether there was prima facie some material on the basis of which the department coul....
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....complete the paper trail. The summons issued u/s 131 to the Principal Officer of the alleged creditor companies at the available address as well as by mail remained uncomplied with. The assessee also expressed its inability to produce the directors of the alleged creditor companies. Thus, the assessee failed to discharge the onus cast on him to substantiate the genuineness of the transaction and the identity and capacity of the loan creditors. 30. So far as the argument of the ld. Counsel that the assessment in the case of M/s Ambaranuj Finance and Investments Pvt. Ltd., was completed u/s 153A/143(3) and no adverse findings were given by the AO is concerned, he submitted that the assessment in the hands of the lender company has no bearing on the assessability of the transaction in the hands of the assessee as being accommodation entries and the transactions have to be examined in the hands of the beneficiary which is the assessee in the instant case. Relying on various decisions, he submitted that the addition made by the AO and sustained by the CIT(A) is fully justified. 31. The ld. Counsel for the assessee, in his rejoinder, strongly challenged the arguments advanced by th....
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.... the case of Charan Kamal Singh vs. ACIT, vide ITA No.4662/Del/2007, order dated 21.03.2018, wherein after considering the above decision of the apex court, the Hon'ble Tribunal held that assuming jurisdiction u/s 147 by the AO is not valid on the basis of the material seized from third party and the correct section under which action could be taken by the Revenue is section 153C alone. 33. So far as the decision of the Pune Bench of the Tribunal in the case of Sushil Kumar S. Nadkarni (supra) is concerned, he submitted that in fact, the above judgement supports the case of the assessee that post amendment, the powers u/s 153C only can be exercised as the requirement of the amended section has been met. He accordingly submitted that the argument advanced by the ld. DR for non applicability of section 153C is not in accordance with law in view of the specific amendment brought in the statute book. 34. So far as the argument of the ld. DR that the AO has applied his mind on the basis of the information received from the Investigation Wing is concerned, he submitted that the ld. DR does not dispute the factual inconsistencies in the reasons recorded since he could not controvert....
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.... recording the reasons. 36. Before we proceed further, we deem it proper to reproduce the form for recording the reasons for initiating proceedings u/s 147 for obtaining approval of Addl. CIT/CIT as under:- 37. We find, the AO in the assessment order at para 1 has mentioned as under:- "The assessee company filed the return of income for AY 2011-12 declaring loss of Rs, 20,53,019/- on 17.8.2011. The case was scrutinized u/s 143 (3) on 10.3.2014 determining an income of Rs. 20,06,714/-. Thereafter, on the basis of information received regarding the search & seizure operation in the case of entry provider Sh. Anand Kumar Jain and Sh. Naresh Kumar Jain (the Jain Brothers) and the assessee being beneficiary of Rs. 39,00,055/-, the reasons were recorded for reopening u/s 147 of the Act. Subsequently notice u/s 148 of the Income Tax Act, 1961 was issued on 26/03/2018 after obtaining prior approval of the Pr. CIT-7, New Delhi and served through email as well as post. In response thereto, the assessee filed a letter stating that the return already filed u/s 139 may be treated as return filed in response to notice u/s 148. However, another letter dated 7.8.2018 was issued to t....
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....r failure on the part of the assessee. The Hon'ble Bombay High Court in the case of Anand Developers, vide Writ Petition No.17/2020, order dated 18th February, 2020, has held that a mere bald observation by the AO that the assessee has not disclosed fully and truly all the material facts is not sufficient. The AO has to give details as to which fact or the material was not disclosed by the assessee leading to its income escaping assessment. Otherwise reopening is not valid. The Hon'ble Delhi High Court in the case of Haryana Acrylic Manufacturing Company vs. CIT, 308 ITR 38, order dated 1st July, 2020, has held as under:- "19. Examining the proviso [set out above], we find that no action can be taken under section 147 after the expiry of four years from the end of the relevant assessment year if the following conditions are satisfied: (a) an assessment under sub-section (3) of section 143 or this section has been made for the relevant assessment year; and (b) unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee: (i) to make a return under section 139 or in r....
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....remains unfulfilled. In our recent decision in Wel Intertrade (P.) Ltd.'s we had agreed with the view taken by the Punjab and Haryana High Court in the case of Duli Chand Singhania that, in the absence of an allegation in the reasons recorded that the escapement of income had occurred by reason of failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment, any action taken by the Assessing Officer under section 147 beyond the four year period would be wholly without jurisdiction. Reiterating our viewpoint, we hold that the notice dated 29-3-2004 under section 148 based on the recorded reasons as supplied to the petitioner as well as the consequent order dated 2-3-2005 are without jurisdiction as no action under section 147 could be taken beyond the four year period in the circumstances narrated above." 39. The various other decisions relied on by the ld. Counsel also support his case to the proposition that where there is no allegation in the reasons recorded that there is failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment u/s 147 of the Act, the notice issued u/s 148 af....
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....ced in the open court on 31.07.2020. ============= Document 1 Form for recording the reasons for initiating proceedings u/s 147 and for obtaining the approval of the Addl. CIT/CIT/CBDT 1. Name and address M/s RMP Holdings (P) Ltd. 138-C, Block-B, Group-4, Dilshad Garden, Delhi - 110095. 2. PAN 3. Status 4. Ward/Circle 5. 6. 7. 8. 9. (a) (b) 10. 11. AAACR5533N Company WARD 20(3) Asst. Year in respect of which it is proposed to issue 2011-12 notice u/s 148 The quantum of income which has escaped | Rs. 39,00,055/- assessment Whether the provisions of section 147(a). 147(b) U/s 147 of the I.T. Act 1961 are applicable or all the Sections are applicable Whether the assessment is proposed to be made for Yes the first time If answer to item 7 is negative state Income originally assessed Return fileld on 17.8.2011 showing loss of Rs.20,53,019/- Whether it is a case of under assessment, at lower |NA rate, assessment which has been made the subject of excessive relief or allowing excess loss/depreciation Whether the provision of Sec. 150(1) are applicable. No If the rep....
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....actions in order to bring unaccounted income into the folds of taxation. 1.3. The modus operandi of the Jain Brothers as entry operators follows the standard pattern of most other entry providers wherein money is routed through paper companies controlled by the Jain brothers. These companies are found to be incorporated by taking care of all formalities such as registering with ROC but are having only postal addresses with no real office or employees. Many of these companies did not even have proper postal addresses as the services of the postmen were used to deliver the statutory letters to the agents/employees of the Jain Brothers. The directors of such companies are again individuals who are mostly illiterate or semiliterate and work for the entry operators for small salaries or commission. Many of such directors were not traceable and of the many who were traced out, none of the directors had any idea relating to the working of the companies of which they were the directors. Many of these "directors" were actually working as peons, watchmen, domestic help etc. 1.4. It was established during the investigations, these are only paper compa....
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.... of the various companies were found from the other premises of Jain Brothers and those of their employees or associates, and nothing was found at this address. It was uncovered that no work was carried out at this address and this was a mere paper address while the "actual work", which was related to accommodation entries, was carried out at the other premises which were covered by the search. It became known that despite the fact that none of the companies and firms registered at this address actually operated out of this premises in any way, an arrangement ad been put in place by Shri Naresh Jain to ensure that all statutory correspondences relating to the above mentioned companies/firms addressed at this premises were safely delivered to him by his employee. Amit Bhardwaj. In this process, the postmen of the area had also been roped in to deliver all letters and other correspondences to the persons deputed by Sh. Naresh Kumar Jain. In this manner, Sh. Naresh Jain had managed to create and perpetuate the legal fiction of the existence and working of these entities from this address. The control over various entities by the Jain Brothers was ensur....
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....f the Jain Brothers, have been given below: NAME AMBARNUJ ADDRESS 243, NORTHEX MALL, SECTOR-9 DIRECTORS/Par PAN NO. S.N O. tners 1 FINANCE & ANAND KUMAR INVESTMENT PVT. Rohini, New Delhi-85 LTD JAIN,SURBHI CHANDRA, AAACA5799F 2 ANAND KUMAR JAIN 3 ANAND KUMAR JAIN HUF C-9/46, SEC-8, ROHINI. DELHI-85 C-9/46. SEC-8, ROHINI, DELHI-85 AAEPJ1642F AAAHA3209F 5 BRR SECURITIES PVT. LTD. 126,VARDHMAN FORTUNE MALL. NARESH KUMAR AAACK5745K COMMUNITY JAIN, PANKAJ CENTRE, JAIN, G.T.KARNAL ROAD 6 CERAM SALES PVT. B-87, BLOCK B. ASHU AADCC0084A Document 5 DEFENCE COLONY. LTD. New Delhi 7 COMO INFOSOLUTIONS P LTD. CVH SEA LIFES LTD. 333-A 2nd FLOOR. SANT NAGAR. EAST OF KAILASH, New Delhi 333-A 2nd FLOOR. SANT NAGAR, EAST OF KAILASH, New Delhi DHINGRA NIR MAL SINGH. NIRMAL SINGH.VIJAY PAL RAWAT. AADCC0002A 8 BHAGIRATH AACCC58208 SETHI, RAVINDE R KUMAR,VIKAS BANSAL 9 GAJANAN REALCON PVT. SHOP NO. 146, GALI NO. 13, NATHU RAJESH AACCG8176G VERMA,V....
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....69N KUMAR, VIKAS BANSAL. 29 NEXT GENERATION R-17, PRIVATE COLONY, SRINIWAS ANIL AACCN9821B KUMAR,ASHU Document 7 EXIM PVT. LTD. PURI, New Delhi DHINGRA, LTD. 31 PRAGAYA MULTITRADERS PVT. LTD. 333-A 2nd FLOOR, SANT NAGAR, EAST OF KAILASH, New Delhi 30 NINE CORPORATE INCEPTIONS PVT 333-A 2nd FLOOR, SANT NAGAR, EAST OF KAILASH, New Delhi DEVICHARAN, AAICS2335P MALLIKA DEVI,VIKAS BANSAL DEVICHARAN, AAACK0670K MALLIKA DEVI 32 PURUS B-87, DEFENCE BHUSHAN AAECP2129A MARKETING P COLONY New Delhi GOEL,NIRMAL LTD. SINGH 34 ROUND SQUARE B-163, AMAR BHUSHAN AAECR5167Q EXIM PVT. LTD. COLONY,New Delhi GOEL, VIJAY PAL RAWAT. 35 SAI INFOWEB PVT. LTD. 326, LGF, SANT NAGAR, EAST OF KAILASH, New Delhi- ANIL AALCS5794H KUMAR.NITIN KUMAR CHADDA, 36 SUNSHINE INN PVT. LTD. B-163, AMAR DEVICHARAN. AAACS2056D COLONY,New Delhi MALLIKA DEVI, 37 TECHNOSOFT INFOSYSTEM P LTD. 326, LGF, SANT NAGAR. EAST OF VIKAS AACCT3296J PRASHANT KAILASH, New Delhi 38 THIRD ....
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....ooks. All these bank. documents pertained to the shell companies of the Jain Brothers. Accordingly, information was called in respect of the bank accounts from various banks and branches which were identified from the seized laterials. From the perusal of the details collected from the banks, it was found that most of these accounts were managed and controlled by Shri Anand Kumar Jain or Shri Naresh Kumar Jain. The complete details collected in this regard are encapsulated in the following table:- Company Name Bank Branch A/C no. Registered Mobile no. Mail Id AMABRANU J FINANCE & ASHOK INVESTMEN T PVT LTD IDBI BRR SECURITIES 109 Jain) 0201102000018 PVT.LTD IDBI VIHAR, 0201102000015 9810038489 (Anand DELHI ASHOK VIHAR, DELHI ambarnuj fin ance@rediff mail.com brrsecurities 577 9811764122 (Pankaj Jain) @gmail.com CP Iron KOTAK PREET Furniture Pvt MAHIND 9310016550 (Kaushal VIHAR RA 1832090000311 Kumar) CHANDRA BUILDCON PVT LTD IDBI ASHOK VIHAR, DELHI nareshjain ca 020110200002 @rediffmail.c 0776 9560413868 (Kavita) om K....
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.... diffmail.com AXIS TRADING VIHAR, BANK CO DELHI 9140200549170 9540403664 (Naresh 66 Jain) jeminitrading @gmail.com JINDAL SAXENA FINANCIAL ASHOK JINDALSAXE SERVICES VIHAR, 0201102000019 9540403664 (Naresh NA@GMAIL. PVT LTD IDBI DELHI 099 Jain) COM Document 11 KOTAK JKS IN EX MAHIND PVT LTD. RA CHAND NI CHOWK 018620000032 9873938489 (Anand 73 Jain) JKS IMPEX@ REDIFFMAIL. COM KAILASH PORTFOLIO NORTH PVT EX LTD.(NOW HDFC PRAGAYA BANK MALL. ROHINI MULTITRAD nareshjain_ca , DELHI ERS PVT LTD) 134725600006 9818045781 (Naresh 78 Jain) @rediffmail.c om KANU KOTAK PERIPHERALS MAHIND ROHINI , DELHI 9818045781 (Naresh PVT LTD RA 612011000311 Jain) vbansal78@g mail.com KARDA ASHOK NARESHJAIN TRADERS 0201102000014 IDBI VIHAR, 9818045781(Naresh Jain) CA@REDIFF PRIVATE 207 DELHI MAIL.COM LITED KCJ ASHOK BUILDTECH VIHAR, 0201102000015 9999247132 (Vishnu kci buildtech @rediffmail.c PVT LTD IDBI DELHI 075 Mishra) om KESHAV ....
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....612011017064 Jain) om SAI ASHOK NARESHJAIN INFOWEB VIHAR, 0201102000014 PVT LTD IDBI DELHI 9818045781 (Naresh 322 Jain) SHIVANGI GARMENTS KOTAK MAHIND ROHINI . DELHI 197200000008 9810038489 (Anand CA@REDIFF MAIL.COM SHIVANGI G ARMENTS@ REDIFFMAIL. RA PVT LTD 7 Jain) COM SHIVIJ ASHOK shivij garmen GARMENTS PVT LTD IDBI VIHAR, DELHI 0201102000015 9873938489 (Anand ts@rediffmail 172 Jain) .com SHUBH ASHOK LABH TRADERS IDBI VIHAR. DELHI 0201102000014 9818045781 (Naresh ASHOK 571 Jain) 9599494898 (Nitin SHUBHADRA VIHAR. SECURITIES IDBI DELHI 0201102000014 | Kumar Chadda-used by 632 Naresh Jain) nareshjain_ca @rediffmail.c om SOUTHERN NORTH PACIFIC HDFC HOTELS PVT BANK LTD.(NOW EX MALL, ROHINI 134725600006 9818045781 (Naresh 61 Jain) nareshjain_ca @rediffmail.c om Document 13 SUNSI NE INN PVT. LTD.) DELHI KOTAK ROHINI SUBHLAXMI MAHIND 197209000041 DELHI PORTFOLIO RA 4 KOTAK CHAND SUKUMAR MAHIND NI BUILDWELL 0....
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....D KOTAK MAHIND RA ROHINI . DELHI 9818045781 (Naresh 612011019100 Jain) kumarmanoj 01041974@g mai.com The above table furnishes the specific information about the above mentione companies/concerns being under the control of the Jain Brothers as their mobile number and e-mail ID were registered with the accounts of these companies maintained with the respective banks. All th information of the transactions were being forwarded by the banks to the Jain Brothers on thes numbers, and, their affairs were managed by them instead of the directors/partners of these concerns. Income chargeable to tax escaping assessment The above facts clearly establish that theJain Brothers ad created a network of shell companie and concerns in order to provide the accommodation entries such as provision o cheque/RTGS etc fo unaccounted cash, provision of fake purchas & sale, commodity profits/loss, fake commission, one tim entry or other mode of entries and M/s RMP Holdings Pvt. Ltd has taken accommodation entrie amounting to Rs.39,00,055/- during the FY 2010-11 reelvant to AY 2011-12. In view of this, the assessee has understated the income....