TaxTMI 
TaxTMI 
2021 (2) TMI 611
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....8.08.2018. 2. As the issues raised in these appeals are interrelated they were heard together as per the request of both the parties in appeal before us and are thus being disposed off by this common order for the sake of convenience and brevity. 3. We will first take up the Revenue's appeals vide ITA No.286 to 289/Ind/2018 for Assessment Years 2008-09 to 2011-12 in the case of Shri Vardhman Sakh Sahakarita Maryadit. 4. Brief facts of the case as culled out from the records and as narrated by the Sr. Counsel for the assessee who has commonly argued for both the parties namely Shri Vardhman Sakh Sahakarita Maryadit and Shri Manish Kothari are that survey action u/s 133A of the Act was carried out on 29.9.2014 at the registered office of the society at Ujjain. During the survey it was noticed that assessee society is not filing Income Tax Returns and Permanent Account Number was allotted just few months ago. During the survey various bank accounts of the assessee society were examined wherein it was found that cash amount were deposited on various dates and there were corresponding entries of cheque/demand draft issued to various business concerns including companies. The to....
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....mber and for this service society charged commission of Rs. 100 per lakh and mimimum of Rs. 20/- for amount less than Rs. 20,000/-. However the Ld. A.O noticed that apart from few of the parties who accepted to have given cash to the society for issuing cheque/DD majority of the persons named in the Excel sheety refused to have given any cash entered into such transaction. Based on this observation it was assumed that the unaccounted cash has been deposited in the bank account of the society on the direction of Shri Manish Kothari. Accordingly protective addition was made in the hands of the society and substantive addition was made in the hands of Manish Kothari (President of the Society) for the unexplained investment u/s 69 of the Act. Against these additions assessee society preferred appeal before Ld. CIT(A) and succeeded, as Ld. CIT(A) was of the view that as the substantive additions are confirmed in the hands of Shri Manish Kothari therefore the protective addition made in the hands of the society deserves to be deleted. 7. Though the protective addition was made in the hands of the society for Assessment Year 2008-09 to 2011-12 but revenue has challenged the finding of ....
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....as per the direction of the members who communicated through the President Mr. Manish Kothari. For providing this facility, service charge of Rs. 100 per lakh was collected and the same can be added as income in the hands of the society as service charges but by no canon could the addition for unexplained investment u/s 69 of the Act be made for the total amount of cash deposited in the bank as the same will be totally illogical since there is a corresponding amount paid through banking channel to various persons including private limited companies. He was fair enough to accept that in view of the settled judicial precedence the society being a separate legal entity having its Byelaws, PAN, Bank accounts, the income element in the alleged transaction may be added in the hands of society. Further he submitted that at the most only the commulative peak balance in all bank accounts for the year could have been added if they exceed the service charges of Rs. 100/- per lakh. Ld. Sr. Counsel for the assessee requested that necessary direction may be given to Ld. A.O to compute the commission @Rs. 100 per lakh on the alleged transaction of cash deposited/cheque issued and the addition ....
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....by way of issuance of notice u/s 148 of the Act as well as during the course of assessment proceedings u/s 147 r.w.s. 143(3) of the Act liquidator of the society Mr. R.L. Nagar appeared and gave replies. It was submitted that the assessee society is not running any business. The alleged transactions are basically the cash received from the members of the society and the corresponding entries of account payee cheques/demand drafts issued are the transfers to various persons on the advice/direction of the members/persons (through the President of Society namely Shri Manish Kothari) who have given cash. For providing this facility, society used to charge nominal amount of Rs. 100 per lakh. The society worked through its office bearers who were given the authority to sign the cheques on behalf of the society. Day to day working of banks were carried out by the Manager Mr. Nitin Saini and the President Mr. Manish Kothari used to communicate with the members for the transaction of cash deposits and issue of cheques to various persons. 13. We find that the assessee society is a co-operative society registered under the provisions of Section 4 of Madhya Pradesh Swayatta Sahakarita Ad....
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.... date of service of notice upon him, have the option of withdrawing his shares, deposits or loans from the cooperative as the case may be subject to the discharge of his obligations to the co-operative. (3) member or creditor who fails to exercise the option within the period specified in sub-section (2) shall be deemed to have assented to the change of liability. (4) An amendment passed under sub-section (2) shall not take effect until- (a) all claims of the members and creditors of the co-operative who have exercised the option under sub-section (2) have been met in full or otherwise satisfied; and (b) notice of the amendment of the bye-laws of the co-operative and information of settlement of claims of members and creditors is sent to the Registrar and his acknowledgment is obtained. (5) Subject to the provisions of sub-section(6), the liability of a past member or of the estate of a decased member of a co-operative for the debts of the co-operative as they stood- (a) in the case of a past member, on the date on which he ceased to be a member; and (b) in the case of a deceased member, on the date of his death; shall ....
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.... (c) consideration of the annual operational plan and budget for the current financial year; (d) consideration of the annual report of activities for the previous financial year; (e) consideration of audited financial statements of accounts, the auditor's report relating to the previous financial year and compliance report along with the action taken on it; (f) consideration of the report on deviations, if any, from the approved budget relating to the previous financial year; (g) disposal of surplus, if any, of previous financial year; (h) management of deficit, if any, of previous financial year; (i) creation of specific reserves and other funds; (j) review of actual utilisation of reserves and other funds; (k) review of the report on the attendance at meetings by directors; (l) review of the use of the co-operative's services by the directors; (m) review of remuneration paid to any director or member of any committee or internal auditor in connection with his duties in that capacity or his attendance at concerned meetings; (n) review of quantum and percentage of services pr....
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....elected shall hold office for the unexplained term of his predecessor. (3) The Vice President may resign his office at any time by notice in writing to the President and the President may resign his office at any time by notice in writing to the Vice President. (4) The board may by a resolution passed by three-fourth majority of the directors present and voting at a meeting held for the purpose, remove the President or Vice President on any of the grounds mentioned in sub-section (1) of Section 24. Such meeting shall not be presided by the President or Vice President against whom such resolution is to be considered. (5) The President or Vice President as the case may be, aggrieved by the resolution passed under sub-section (4) may appeal to the Arbitration Council within thirty days from the date of passing of such resolution whose decision thereon shall be final. (6) In the event of the occurrence of any vacancy in the office of the President by reason ofhis death, resignation or removal, or otherwise, the Vice President shall act as President until the date on which a new President elected in accoredance with the provisions of tyhis Act and the....
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....ed by Sr. Counsel for the assessee that Rule 41 & 42 of bye laws of the assessee society provides for the Powers and Duties role of President and Manager. From perusaul of the same we find that the nomination of President and Vice President is only for functioning of the socity but the main powers are vested with Board of societies. Section 35 of the M.P. Swayatta Sahakarita Adhiniyam , 1994 provides the power and functions of the Board of society to nominate the President as well as to remove him from the post. We thus are of the confirmed opinion that the assessee society is a "separate entity" from its members and from its President. For the purpose of Income Tax also the society is a "Separate Legal Entity" different from its members and office bearers. Under the Income Tax Act the Co-operative society is assessed in the status of Association of persons. 17. We further observe that the alleged cash deposits are in the bank accounts which are undisputedly in the name of society and the facts remain that all the alleged transactions of the cash deposit and corresponding entries and cheque issued are through these bank accounts held in the name of the assessee society. So addit....
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....ichever course was more advantageous to the revenue, he was entitled to follow it. In such a situation, it was generally held that once the ITO opted for one course, the other course was barred to him. But no such option is provided to him under the 1961 Act. Section 4 says that income-tax shall be charged on the total income 'of every person' and the expression 'person' is defined in clause (31) of section 2. The definition merely says that the expression 'person' includes, inter alia, a firm and an AOP or a body of individuals whether incorporated or not. There are no words in the 1961 Act which empower the Assessing Officer to give him an option to tax either the AOP or its members individually or for that matter to tax the firm or its partners individually. If it is the income of the AOP in law, the AOP alone has to be taxed; the members of the AOP cannot be taxed individually in respect of the income of the AOP. Consideration of the interest of revenue has no place in this scheme. When section 4(1) speaks of levy of income tax on the total income of every person, it necessarily means the person who is liable to pay income-tax in respect of that total in....
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....ct belongs to the appellant he was the right person for taxing the said income, it was permissible for the Income Tax Authorities to tax the said income at the hands of the assessee. 20. Similar view was taken in the case of M.V. Valliappan v. CIT [1988] 170 ITR 238/37 Taxman 46 (Mad), Asstt. CIT v. Janak P. [2003] 86 ITD 15 (Ahd.), ITO v. K. Venkatesh Dutt [2004] 87 TTJ (Bang.), CIT v. Sriram Jagannath [2001] 250 ITR 689/119 Taxman 581 (Raj.). 21. We therefore in the light of above judgments and in the given facts of the case are of the view that the element of income, if any embedded in the alleged transactions of cash deposited and cheque issued to various concerns consistently/correspondingly from the bank accounts held in the name of the registered co-operative society having its Permanent Account Number and operating under the registered bye-laws, to be taxed under the provisions of Income Tax Act should only be in the hands of the assessee society and not in the name of the office bearers including the President of the Society Shri Manish Kothari (who is also one of the appellant in the captioned appeal before us). 22. As regards the quantum of addition to be sustai....
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.....O has reproduced a list of persons through whom transaction of around Rs. 6,22,96,066/- was carried out and all these persons have accepted to have taken the services of the society for getting the cheques issued against cash, Ld. A.O has made the addition of Rs. 62,296/- only which is 0.1% (Rs. 100 per lakh) of the total cash deposit by these parties of Rs. 6,22,96,066/- observing as follows:- Thus, the total deposits of Rs. 6,22,96,066/- have been admitted by parties mentioned in the list of above during assessement/verification. Some of the parties have already reflected these transactions in their ITR and some of the parties have admitted/accepted transactions as their unrecorded/ undisclosed transactions. In case of acceptance of the amount totaling to Rs. 6,22,96,066/- by various parties, commission in respect of these deposits only is added to the income of Shri Manish Kothari substantively and addition of same amount is made protectively in case of Shri Vardhman Sakh Sahakarita Maryadit, Ujjain on the basis of the facts already discussed supra. Commission is taken at Rs. 100 per Rs. 1,00,000/-, Accordingly amount of Rs. 62,296/- is added substantively in the hands....
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.... not given by the assessee or the revenue authorities are unable to gather any information and no other information is found against the assessee of having earned income from such types of transactions then the additions are confirmed to the extent of peak credit/peak balance in the bank accounts. Similar ratio has been laid by the Hon'ble courts and Co-ordinate benches in the judgments/decisions referred by Ld. Sr. Counsel for the assessee. (i) In the case of S. Venkat Reddy V/s ITO(supra) the Coordinate Bench of Hyderbad placed reliance on the Hon'ble Apex Court in the case of P.K. Noorjahan observing as follows:- 7. We have heard the rival contentions and perused the record. In the case of P.K. Noorjahan (supra), the Hon'ble Supreme Court observed that section 68 of the Act imposes burden on the part of the assessee to explain the source of cash deposits but merely because it could not be explained the amount cannot automatically be added since the expression "May" used in Section 68 of the Act imposes an obligation on the Assessing Officer to verify as to whether assessee could have earned such huge income in one year. In the instant case, it is no....
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.... entries provided to various parties. Now the question before us arise so as to whether the cash deposit in the bank account of assessee amounts to undisclosed income. In the aforesaid facts and circumstances, we find that various courts have held to apply the peak credit theory and in this regard, we rely in the order of Hon'ble Kolkata Tribunal in the case of Binod Kumar Jha Vs. ITO ward 25(2) in ITA 577/kol/2013 date of order 20.11.2015. The relevant extract of the order is reproduced below. "5. We have heard rival submissions and gone through facts and circumstances of the case. We find from the facts of the case that the assessee has deposited cash amounting to Rs. 83,48,16,130/- in six undisclosed bank account maintained with Axis Bank Ltd. The assessee before AO filed working of peak credit in relation tocash deposits made in these six bank accounts and requested the AO to assess the peak credit amounting to Rs. 1,01,40,000/-. The assessee claimed to have computed the peak credit of these six bank accounts taking all the deposits and withdrawals. The AO while framing assessment treated the unexplained cash credit/unexplained investment in bank i.e. cash deposits mad....
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....Zenith Management and all these private limited companies are having their bank Binod Kumar Jha, AY 2009-10 accounts in the same bank branch. This modus operandi clearly reveals that the assessee is merely an accommodation entry provider and nothing else. 6. In view of the above facts and circumstances, the Ld. Counsel for the assessee relied on the decision of Coordinate bench in the case of ITO vs. Shri Piyush Poddar in ITA No. 1050/Kol/2011 for AY 2006-07 dated 07.09.2015, wherein exactly on similar circumstances, the Tribunal has directed the AO to assess the peak credit and by observing held as under: "10. We have heard the rival submissions and perused the materials available on record. It is seen that the assessee apart from his regular income had a bank account with Central Bank of India which was used by him only for the limited purpose of providing accommodation entries to various parties. Initially the assessee took a stand that he was deriving finance commission @.25% of all the transactions in the accommodation entry business and offered the same to tax., However, he shifted his stand by accepting the peak credit theory before the ld. CIT(A). This is ....
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...., we are satisfied that the deposits and withdrawals are closely linked with and related to each other on day-to- day basis. It is also observed that the ld. AO had not brought any material or evidence on record to prove that the withdrawals made by the assessee from the said bank account having utilized for making any other investments outside the books or meant for any other purpose other than for accommodation entry business. It is pertinent to look into the decision rendered by the Kolkata Tribunal in the case of Mahesh Kumar Gupta in IT(SS)A. No.11/Kol/2014 dated 0.2.2005 wherein ITAT observed that the claim of the assessee was that the cheque withdrawals were for giving loan for the short period. Held as follows :- Binod Kumar Jha, AY 2009-10 "The AO cannot refuse to grant set off for the withdrawal made by cheque without bringing on record any materials so that the amount withdrawn by cheque cannot have been received back by the assessee and utilized by him in making subsequent deposits by cheque. Taking all this into consideration, we are of the considered opinion that AO should adopt peak credit method to arrive at the undisclosed income of the assessee in the undisclosed ....
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....dmittedly not disclosed to the revenue and there is no doubt that the deposits in this bank account represents undisclosed income of the assessee to be assessed as undisclosed income but qua only the peak amount. The assessee has filed complete statement of peak deposit and withdrawals which is at Rs. 1,87,247/- and before CIT(A). We are of the view that the CIT(A) has rightly directed the AO to restrict the addition to the extent of peak amount and we confirm the same. This issue of revenue's appeal is dismissed." 13. However, we would like to make it clear that this direction to the ld. AO to assess the peak credit in this case should not be construed as a conclusive proof in the hands of the beneficiary in the said bank account for explaining their amounts. Accordingly, this issue is set aside to the file of the ld. AO to complete the assessment in accordance with the directions mentioned hereinabove. " 7. In view of the above facts and circumstances, we direct the AO to assess the peak credit being a sum of Rs. 1,01,40,000/- as computed by assessee on the basis of deposits made in these six bank accounts with Axis Bank Ltd. in lieu of cash deposits added b....
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....ation is enclosed. There is no dispute about the cash deposited in these six bank accounts maintained with Axis Bank Ltd. We find from the above statement recorded by the AO of the assessee particularly Question nos. 14 and 15 that assessee is only a conduit in a big syndicate of accommodation entry providers and he has earned only commission income for providing accommodation entry. The assessee used to receive cash and deposit the same in one of these six bank accounts and issued cheque of the same amount as can be seen from the extracts of bank statements of these six bank accounts filed by assessee in its paper book. On the very date of cash deposit, cheque is issued of the similar amount. This clearly reveals that the assessee is being used for providing accommodation entry only. All the deposits made in these six bank accounts have been transferred to Maple Advisory Services Pvt. Ltd. and in turn Maple Advisory Services Pvt. Ltd. has further transferred this amount to six Private Limited Companies namely, Gokul Distributors, Indigo Commotrade, Jupiter Tradelink, New Era Commotrade, Swift Distributors and Zenith Management and all these private limited companies are having the....
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....rded in the seized diary are determined on the basis of highest peak, as increased by the net profit of 5 per cent on the receipts and taxed accordingly, for the relevant assessment years. We do not find that the CIT(A) and ITAT has committed any jurisdictional error in passing the impugned orders" 27. Thus on examining the facts of the instant case in the light of above decisions, we find that the facts are similar so much so that in all these cases the assessees were either engaged in providing accommodation entries to various parties or were not able to explain the source of cash deposit and cheques issued and no other business or other source of income was found to be carried out by these assesee's having nexus to the alleged deposits. Similar is the case of assessee society which being a separate legal entity is not found to be engaged in regular business activities and there are regular cash deposits and corresponding cheque issue in the bank accounts (duly encahsed) held in the name of the assessee society. Therefore in this situation the revenue authorities can also sustain the addition to the extent of peak balance. The assessee society has provided following working....
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....ed investment u/s 69 of the Act made for the alleged cash deposits in the bank account of the society namely Shree Vardhman Sakh Skarita Maryadit. The yearwise addition is mentioned below:- ASST.YEAR AMOUNT 2008-09 9,23,93,228/-) 2015-16 13,90,35,137/- (A.Y. 2009-10) 17,69,03,922/- (A.Y 2010-11) 26,21,59,360/- (A.Y 2011-12) 34,48,78,938 & 2,53,43,026 (37,02,21,964) (A.Y 2012-13) 36,54,12,434 & 15,85,15,839 (52,39,28,273) (2013-14) 65,07,34,968 & 9,42,00,954 (2014-15) 35,16,71,541 & 14,14,62,089 (49,31,33,63) (A.Y 2015-16) (iii) Additions made on the basis of documents found during the course of survey u/s 133A of the Act at the premises of assessee Shri Manish Kothari. (iv) Apart from the above the remaining grounds are either consequential in nature relating to interest u/s 234A & 234B of the Act or premature and others are general in nature. 30. As regards the first common issue challenging the reassessment proceedings and the issuance of notice u/s 148 of the Act commonly raised for all the assessment years 2008-09 to 2015- 16, at the out....
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....eposit during each of the year. 33. In view of our above findings we hereby hold that all the additions made on substantive basis in the hands of the assessee u/s 69 of the Act for unexplained cash deposits at Rs. 9,23,93,228/- , Rs. 13,90,35,137/-, Rs. 17,69,03,922/-, Rs. 26,21,59,360/-, Rs. 37,02,21,964/- (Rs. 34,05,94,493 & Rs. 2,53,43,026/)-, Rs. 52,39,28,273/- (Rs. 36,54,12,434/- & Rs. 15,85,15,839/-), Rs. 74,49,35,922/- (Rs. 65,07,34,968/- & Rs. 9,42,00,954/-) and Rs. 49,31,33,630/- (Rs. 35,16,71,541/- & Rs. 14,14,62,089/-) for Assessment Years 2008-09 to 2015-16 respectively deserves to be deleted. We accordingly order so and delete the impugned addition made by Ld. A.O for unaccounted investment made u/s 69 of the Act for Assessment Year 2008-09 to Assessment Year 2015-16 in the hands of assessee namely Manish Kothari. However we would like to make it clear that our this decision of deleting the additions made in the hands of the assessee for Assessment Year 2008-09 to Assessment Year 2015-16 with regard to the alleged cash deposit in the bank account held in the name of society shall have no bearing on the additions made by the Ld. A.O but which have not been agitated o....
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....40,13,720/- In continuation of Ground No. 2.8 (in all the years) 2.8 Addition on account of unexplained investment in residential house at 36, Arivind Nagar 2013-14 2014-15 2015-16 13,62,346 /- 36,14,502/- 13,80,657/- In continuation of Ground No. 2.8 (In all the years 35. From perusal of the impugned orders we find that the orders of Ld. CIT(A) for Assessment Year 2012-13 to 2015-16 (ITA No.862 to 865/Ind/2019) are ex-parte and nothing has been held/ obsrved on merits. We therefore are of the considered view that except for the two issue firstly reopening of the assessment proceedings which are already not pressed by the assessee for Assessment Year 2008- 09 to Assessment Year 2015-16 and secondly the issue of addition of substantive basis for the unexplained investment u/s 69 of the Act for which we have already held that no addition is called for in the hands of assessee Shri Manish Kothari for Assessment Year 2008-09 to Assessment Year 2015-16 u/s 69 of the Act for the alleged cash deposits in the bank account of society namely Shri Vardhman Sakh Sahakarita Maryadit and the same thus deserves to be deleted. All the remaining issues raised by the assessee in th....
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....elates to the transactions of purchase and sale of immoveable property carried out through buyers and sellers through the brokers and assessee is one of the three brokers involved in this transaction. The percentage of total brokerage is from2 to 3% and effectively the assessee's share is 0.67% to 1%. So the addition if any to be made in the effective Assessment Year should be for the brokerage of 0.67% to 1% on the transaction appearing in the seized document page 1 & 5 of BF-5. 38. As regards Ground No.3 for Assessment Year 2009-10 relating to addition of Rs. 5,00,000/-, Ground No.3.1 & 3.3 for Assessment Year 2010-11 for addition of Rs. 22,57,243/- and Ground No. 3.1 to 3.4 for Assessment Year 2011-12 for the amount of Rs. 13,21,000/-, it was submitted that the addition were made by the Ld. A.O applying brokerage and commission made on the basis of statement of the appellant taken during the course of survey. However the addition made by the Ld. A.O was by way of applying brokerage rate of 3% whereas actual brokerage received by the assessee ranging from 0.67% to 1%. The Ld. Sr. Counsel for the assessee referred to the following written submissions:- Addition OF Rs. ....
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....of brokerage at the most can be calculated (0.667% of amount received in relevant assessment year). The assessing officer only on the basis of statement of the assessee added an amount of Rs. 5,00,000/- in A.Y 2008-08 to the income of the assessee and same was not justifiable more so when the property brokerage income of the assessee on the basis of actual cash realized and transfer through the assessee was to calculated @ 0.667% and the same was included in the regular income of the assessee after reducing the legitimate expenses as claimed by the assessee. That in view of the above the amount of brokerage at the most can be calculated (0.667% of amount received in relevant assessment year). 39. Without prejudice to the above submissions Ld. Sr. Counsel for the assessee also made following alternate submissions for consideration:- That in light of the above submission in reference to other additions made by the LD AO and thereafter its ex-party confirmation by the LD CIT (A), it is submitted that there is a grave error in the orders passed by the lower authorities in making and sustaining the above addition. That the orders of lower authorities with r....
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....during survey 2009-10 5,00,000/- Ground No. 3 Addition on account of brokerage /Commission @ 3 % by making reliance on statement of Appellant taken during Survey (Dated 29/09/14) and entries on loose paper impounded during survey 2010-11 2011-12 22,57,243/- 13,21,000/- 3.1 & 3.3 (2010-11) 3.1 to 3.4(2011-12) 42. As regards Ground No.5 for Assessment Year 2008-09 for addition of Rs. 19,854/- there were no submissions made from the side of assesse and it seems that assessee is not interested to press this ground. We accordingly dismiss Ground No.5 for Assessment Year 2008-09 as not pressed and confirm the addition of Rs. 19,854/-. 43. As regards Ground No.3 for Assessment Year 2008-09 for addition of Rs. 4,68,000/- it is claimed before us that in the loose paper No.BF-2 there are certain transactions falling in the Financial Year 2014-15 but the additions has been made during Assessment Year 2008-09. Certainly no addition was called for Assessment Year 2008-09 however since we have already set aside the impugned order of Ld. CIT(A) for Assessment Year 2015-16 for readjudication purpose and to decide the issues on merits this issue of addition based on loose....