2021 (8) TMI 1365
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....26.03.2018 after obtaining prior approval of the Pr. CIT-7, New Delhi. The notice was duly served on the assessee. In response to the same, the assessee filed a letter stating that the return already filed u/s 139 of the Act may be treated as return filed in response to notice u/s 148 of the Act. 2.1. Subsequently, the AO issued another letter to the assessee requesting him to file the return in response to notice u/s 148 of the Act. Ultimately, the assessee filed his return of income on 13.10.2018 declaring income of Rs.30,460/-. Thereafter, the AO issued notice u/s 143(2) and 142(1) of the Act and the copies of the reasons recorded were also handed over to the assessee. The assessee filed objections in response to notice u/s 142(1) of the Act vide letter dated 05.11.2018 and the AO vice order dated 09.11.2011 disposed off such objection by passing a speaking order. 3. During the course of assessment proceedings, the AO noted that the assessee has received accommodation entries to the tune of Rs.92,00,110/- from the companies controlled by Mr. Anand Kumar Jain and Mr. Naresh Kumar Jain which are as under:- 1 M/s VKS Properties Pvt. Ltd. Rs.20,00,000/- 2 M/s Sh....
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....f the principal officer. However, nobody appeared on the appointed date nor any request for adjournment was received. On being asked by the AO to produce the parties the assessee expressed its inability to produce them. In view of the above, the AO, invoking the provisions of section 68 of the Act and relying on various decisions including the decision of the Tribunal in the case of Sh. Surender Kumar Jain and Sh. Virendra Jain wherein they are treated as entry operators made addition of Rs.50 lakhs to the total income of the assessee u/s 68 of the Act. 6. The AO has also received information from ADIT(Inv.), Unit-5(4), New Delhi, dated 23.03.2018, that the assessee has availed accommodation entries of Rs.33 lakhs from M/s RKG Finvest Pvt. Ltd.. He, therefore, asked the assessee to prove the identity and creditworthiness of the said parties and the genuineness of the transactions. It was explained that the assessee company had already repaid the above loan amount in the subsequent year and also deducted TDS on interest paid on this loan. Copy of confirmation with ITR and audited balance sheet of the said party was filed before the AO. 6.1. However, the AO was not satisfied wi....
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.... proceedings in a mechanical manner without due application of mind. Relying on various decision, it was submitted that such approval given by the higher authority does not demonstrate the due application of mind and therefore, such reassessment proceedings are invalid. 8. So far as the, merits of the case is concerned, it was submitted that the assessee has filed the requisite details before the AO by filing confirmations, copy of ITR , bank statement of relevant period, audited financial statement, subsequent ledger account of repayment of loan along with bank interest, etc. It was argued that when the assessee has repaid the unsecured loan obtained from these companies in the subsequent assessment years which is prior to the notice issued u/s 148 of the Act and interest has been paid on such unsecured loan and TDS has been deducted, therefore, nonproduction of the directors of those companies before the AO for recording of their statement should not be held against the assessee for making the addition. Relying on various decisions, it was argued that the addition made by the AO should be deleted. 9. However, the learned CIT(A) was not satisfied with the arguments advanced ....
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.... 5. The Ld. CIT(A) has erred both in law and circumstances of the cases in upholding the additions of Rs. 1,25,00,110/- and Rs.50,00,000/- u/s 68 of the IT Act holding the unsecured loan and share capital respectively as unexplained cash credit ignoring the fact that the assessee has discharged its initial onus u/s 68 of the IT Act explaining nature and source of the credits by filing requisite documents proving identity and creditworthiness of the lenders and also to establish genuineness of the transaction during assessment proceedings. 6. The Ld. CIT(A) has erred both in law and circumstances of the cases in upholding action of the AO, in making additions u/s 68 of the IT Act of Rs.1,25,00,110/- and Rs.50,00,000/- are erroneous as the evidences filed by the appellant in support of above cash credits have been rejected by the AO without conducting any enquiry thereon in discharge of onus shifting on the revenue after the initial onus discharged by the appellant. 7. The Ld. CIT(A) has erred both in law and circumstances of the cases in reliance on the material to take view adverse to the appellant without confronting the same and therefore action of the ....
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....ich independent prima facie belief is reached that income has escaped assessment. 14. Referring the decision of the Hon'ble Delhi High Court in the case of Sabh Infrastructure vs ACIT reported in 398 ITR 198 (Del.) , he submitted that it is settled position of law that the reason for reopening must be complete and self explanatory demonstrating the application of mind by the AO of the relevant material in his possession. He also relied on the following decisions:- i. Pr. CIT vs RMG Polyvinyl (I) Ltd. (2017) 396 ITR 5(Del.) ii. Pr. CIT vs G & G Pharma India Ltd. 384 ITR 147 (Del.) iii. CIT vs Independent Media Pvt. Ltd. in ITA No.108/2015(Del.) iv. Signature Hotels P. Ltd. vs ITO [2011] 338 ITR 0051 (Del.) v. CIT vs SFIL Stock Broking ltd. 325 ITR 285 (Del.) vi. Sarthak Securities Co. P. Ltd. vs ITO 329 ITR 110 (Del.) vii. CIT vs Suprme Polypropolene (P) Ltd. ITA No.266/2011(Del.) viii. CIT vs Multiplex Trading & Industrial Co. Ltd. 378 ITR 351 (Del.) ix. Hindustan Lever Ltd. [2004] 137 Taxman 479 (Bom.) x. CIT vs Greenworld Corporation 314 ITR 81(SC) 15. The learned counsel for the asses....
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....ted that the return of income filed u/s 139 of the Act be treated as return of income filed in response to notice u/s 148 of the Act and also requested for supply of reason. The AO after more than 4 months vide letter dated 07.08.2018, copy of which is placed at page 73 (PDF page 77) of the paper book directed the assessee to e-file the return of income which was done on 13.10.2018 copy of which is placed at page 1A (PDF PB 2) of the paper book. Referring to page 74 to 76 of the paper book, he submitted that the AO issued notice dated 16.10.2018 u/s 143(2)/142(1) and supplied reasons recorded on 22.10.2018 against which the assessee submitted objection to assumption of jurisdiction on 05.11.2018,. The same were disposed of by the AO on 09.11.2018 as per Pages 65 to 72 of the paper book. He accordingly submitted that the AO has assumed jurisdiction to make assessment by issuing notice u/s 143(2) of the Act on 16.10.2018 before supplying reason which means that the AO assumed jurisdiction before allowing assessee to file objections against assumption of jurisdiction. Referring to the decision of the Hon'ble Delhi High Court in the case of Mastech Technologies Ltd. vs DCIT in Writ Pet....
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....ature. He submitted that a perusal of the bank statements of the above companies would show that there is no cash deposit in the bank account and the assessee has paid interest to the above lenders on the amount borrowed and also has deducted TDS u/s 194A of the Act. Relying on various decisions as per case law compilation, he submitted that action of the AO and the learned CIT(A) are not in accordance with law. 21. So far as, the addition on account of unexplained share capital is concerned, he submitted that the assessee has filed the confirmations, share application forms, bank statements for the relevant period, copies of ITR filed and copies of audited financial statements of the share applicants, etc. The assessee has discharged the onus cast upon it. Nothing has been brought on record by the AO to substantiate his allegation that these credit entries by way of share capital are accommodation entries. Relying on various decisions, he submitted that merely because the directors were not produced before the AO, the addition cannot be made u/s 68 of the Act. He submitted that the assessee has proved all the three important ingredients of section 68 of the Act by proving the i....
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....e same is nothing but non-application of mind. He accordingly submitted that the contention of the learned DR is not factually correct. 25. We have heard the rival arguments made by both the sides, perused the orders of the Assessing Officer and the learned CIT(A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find the AO on the basis of information received from the Investigation Wing that the assessee is beneficiary of accommodation entries to the tune of Rs. Rs.92,00,110/- evidence of which was found during the course of search and seizure operation in the case of Mr. Anand Kumar Jain and Mr. Naresh Kumar Jain on 17.12.2015 who are known as entry providers, reopened the assessment u/s 147 of the Act after recording the reasons and issued notice 148 of the Act. 26. We find the AO completed the assessment u/s 147 r.w.s. 143(3) of the Act and determined the total income of the assessee at Rs.1,75,30,470/- by making addition of Rs.1,75,00,110/- to the returned income of Rs.30,460/-. We find the learned CIT(A) upheld the action of the AO both on merit as well as on the validity of reassessment proceedings. I....
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....nd leaves the reader clueless. Besides non-identification of the entities, the AO has also failed to identify middleman, if any, in the deal. The important details in the form of instrument number through which cheques/RTGS was accepted by the assessee company, name of the bank from which the accommodation entry was provided, the name of the bank in which the accommodation entry was credited and the date of the transaction is missing in the reason. The date of transaction in our opinion, 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. 29. We find during the course of assessment proceedings, the assessee had raised specific objection before the AO regarding the non-mentioning of the entities as per reasons provided who had given accommodation entries. However, a perusal of the said annexure which is reproduced as under does not give such details giving the names of the entities giving the amount of accommodation entries during the year. 30. We find that Hon'ble Delhi High Court in the case of Pr. CIT vs Meenakshi Overseas Pvt. Ltd. reported in 395 ....
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....can be said to be "a known entry operator" is even more mysterious. Clearly the source for all these conclusions, one after the other, is the Investigation report of the DIT. Nothing from that report is set out to enable the reader to appreciate how the conclusions flow therefrom. 23. Thus, the crucial link between the information made available to the AO and the formation of belief is absent. The reasons must be self evident, they must speak for themselves. The tangible material which forms the basis for the belief that income has escaped assessment must be evident from a reading of the reasons. The entire material need not be set out. However, something therein which is critical to the formation of the belief must be referred to. Otherwise the link goes missing. 24. The reopening of assessment under Section 147 is a potent power not to be lightly exercised. It certainly cannot be invoked casually or mechanically. The heart of the provision is the formation of belief by the AO that income has escaped assessment. The reasons so recorded have to be based on some tangible material and that should be evident from reading the reasons. It cannot be supplied subsequentl....
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.... Annexure. As per information amount received is nothing but accommodation entry and assessee is a beneficiary." 28.2 The Annexure to the said proforma gave the Name of the Beneficiary, the value of entry taken, the number of the instrument by which entry was taken, the date on which the entry was taken, Name of the account holder of the bank from which the cheque was issued, the account number and so on. 28.3 Analysing the above reasons together with the annexure, the Court observed: "14. The first sentence of the reasons states that information had been received from Director of IncomeTax (Investigation) that the petitioner had introduced money amounting to Rs. 5 lacs during financial year 2002-03 as per the details given in Annexure. The said Annexure, reproduced above, relates to a cheque received by the petitioner on 9th October, 2002 from Swetu Stone PV from the bank and the account number mentioned therein. The last sentence records that as per the information, the amount received was nothing but an accommodation entry and the assessee was the beneficiary. 15. The aforesaid reasons do not satisfy the requirements of Section 147 of the Act.....
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....ut in the above 'reasons'. These included name of the beneficiary, the beneficiary's bank, value of the entry taken, instrument number, date, name of the account in which entry was taken and the account from where the entry was given the details of those banks. The reasons then recorded: "The transactions involving Rs. 27,00,000/-, mentioned in the manner above, constitutes fresh information in respect of the assessee as a beneficiary of bogus accommodation entries provided to it and represents the undisclosed income/income from other sources of the assessee company, which has not been offered to tax by the assessee till its return filed. On the basis of this new information, I have reason to believe that the income of Rs. 27,00,000/- has escaped assessment as defined by section 147 of the Income Tax Act. Therefore, this is a fit case for the issuance of the notice under section 148." 29.3 The Court was not inclined to interfere in the above circumstances in exercise of its writ jurisdiction to quash the proceedings. A careful perusal of the above reasons reveals that the AO does not merely reproduce the information but takes the effort of rev....
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.... was involved in the giving and taking of bogus entries. The AO thus indicated what the tangible material was which enabled him to form the reasons to believe that income has escaped assessment. It was in those circumstances that in the case, the Court came to the conclusion that there was prima facie material for the AO to come to the conclusion that the Assessee had not made a full and true disclosure of all the material facts relevant for the assessment. 31. In Commissioner of Income Tax v. G&G Pharma (supra) there was a similar instance of reopening of assessment by the AO based on the information received from the DIT (I). There again the details of the entry provided were set out in the 'reasons to believe'. However, the Court found that the AO had not made any effort to discuss the material on the basis of which he formed prima facie view that income had escaped assessment. The Court held that the basic requirement of Section 147 of the Act that the AO should apply his mind in order to form reasons to believe that income had escaped assessment had not been fulfilled. Likewise in CIT-4 v. Independent Media P. Limited (supra) the Court in similar circumstances....
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....e is no independent application of mind by the AO to the tangible material which forms the basis of the reasons to believe that income has escaped assessment. The conclusions of the AO are at best a reproduction of the conclusion in the investigation report. Indeed it is a 'borrowed satisfaction'. The reasons fail to demonstrate the link between the tangible material and the formation of the reason to believe that income has escaped assessment. 37. For the aforementioned reasons, the Court is satisfied that in the facts and circumstances of the case, no error has been committed by the ITAT in the impugned order in concluding that the initiation of the proceedings under Section 147/148 of the Act to reopen the assessments for the AYs in question does not satisfy the requirement of law. 38. The question framed is answered in the negative, i.e., in favour of the Assessee and against the Revenue. The appeal is, accordingly, dismissed but with no orders as to costs." 31. We find, following the above decision, the Co-ordinate Benches of the Tribunal are taking the consistent view that when there is non-application of mind by the AO to the report of t....
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..../s 143(2) of the Act on 16.10.2018 before supplying reason which means that the AO assumed jurisdiction before allowing assessee to file objection to assumption to jurisdiction. 34. We find the Hon'ble Delhi High Court in the case of Mastech Technologies Pvt Ltd. vs DCIT reported in 407 ITR 242(Del.) at para 30 of the order has observed as under:- "30. As regards the non-communication of the reasons as contained in Annexure-A to the proforma on which the approval dated 19th March, 2015 was granted by the Additional CIT, there is again no satisfactory explanation. The fact remains that what was communicated to the Petitioner on 23rd February, 2016 was only one line without any supporting material. There appears to be also no clarity of how the case had to be proceeded with by the Revenue, On one date i.e. 16th February 2016, the AO was issuing notice both under Section 142(1) of the Act as well as notice under Section 143(2) of the Act when on that very date the Petitioner had asked for the reasons for reopening by notice dated 18th January, 2016. Again, it is not clear why the AO did not wait for the process of supplying reasons to the Petitioner, considering the Petiti....
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....ns are applicable Whether the assessment is proposed to be made for Yes the first time 9. If answer to item 7 is negative state (a) Income originally assessed (b) Whether it is a case of under assessment, at lower rate, assessment which has been made the subject of excessive relief or allowing excess loss/depreciation 10. 11. Return filed on 12.09.2011 showing income of Rs.30.460/- NA Whether the provision of Sec. 150(1) are applicable. No If the reply is in affirmative the relevant facts may be stated against Item No. 11 and 8 may also be brought out that the provisions of Sec. 150(2) would not stand in the way of initiating proceedings u/s 147. Reasons for the belief that income has escaped As per Annexure 'A' assessment Document 3 Recording of reasons for reopening the case of M/s R.N.Khemka Enterprises Pvt. Ltd., A.Y.2011-12 PAN: AADCR1772L Annexure "A" Background:- The assessee company was incorporated on 21.12.2005 under the Company Act, 1956. The directors of the assessee company, as per the return for A.Y.2011-12 are Sh. Rajender Kumar Khemka and Sh. Naveen Kumar Khemka. R/o Gali No. 3,....
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.... 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 companies used to route the unaccounted income and, provide bogus accounts for non-existent transactions. Also it has been exposed through search and seizure operations and the post-search actions of investigations, that the N. Khemka Enterprises (P) Lta Document 4 3 Page 49 of 302 48 Ja Brothers control a number of bank accounts for depositing cash and companies for routing the entries. In fact, on the basis of the complete perusal of the evidences seized during the entire search, the following is concluded:- 1.5. a. Papers and digital evidences relating to the shell companies were found in all the premises covered by the search b. Whatever documentary or dig....
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....re 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 ensured in this manner. The search action divulged that this was the pattern with respect to the activities carried out by all the companies/firms set-up by the Jain Brothers; all such entities either did not physically exist or had a nominal existence and their financial activities were managed from the premises of the Jain Brothers. The search and the subsequent investigations clearly showed that the bogus companies/concerns run by Sh. Anand Kumar Jain and Sh. Naresh Kumar Jain were controlled by them through dummy For R.N. Khemka Enterprises (P) Ltd. Directer Document 5 4 dictors/principal offic....
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....For R.N. Khemka Enterprises (P) Ltd. Document 6 5 CENTRE, JAIN, G.T.KARNAL ROAD 6 LTD. CERAM SALES PVT. B-87, BLOCK B. ASHU AADCC0084A DEFENCE COLONY, New Delhi DHINGRA,NIR MAL SINGH. INFOSOLUTIONS 7 COMO P LTD. 8 CVH SEA LIFES LTD. 9 GAJANAN REALCON PVT. LTD. 333-A 2nd FLOOR, SANT NAGAR, EAST OF KAILASH, New Delhi 333-A 2nd FLOOR, SANT NAGAR, EAST OF KAILASH, New Delhi SHOP NO. 146. GALI NO. 13, NATHU PURA New Delhi -84 NIRMAL SINGH,VIJAY PAL RAWAT. AADCC0002A BHAGIRATH AACCC5820B SETHI,RAVINDE R KUMAR, VIKAS BANSAL RAJESH AACCG8176G VERMA,VIKAS KADAM. 10 GALLANT COMPUTECH PVT. LTD. 326, LGF, SANT VIKAS BANSAL AADCG1347E NAGAR, EAST OF KAILASH, New Delhi AVINASH CHANDRA 11 GANESHA INVESTMENTS 333A, IInd FLOOR, SANT NAGAR No Return AAHFG7166N 14 GOMATI 333-A 2nd FLOOR, DEVICHARAN. AACCG3616M CONSULTANTS SANT NAGAR, EAST MANOJ PVT. LTD. OF KAILASH, New Delhi KUMAR, 15 GROUPONE 7B/11,SIRINIWASPURI MANOJ AACCCD3330M INFORMATIVE SERVICE....
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....35P AAACK0670K MULTITRADERS SANT NAGAR, EAST MALLIKA DEVI PVT. LTD. OF KAILASH, New Delhi 32 PURUS B-87, DEFENCE BHUSHAN AAECP2129A MARKETING P COLONY New Delhi GOEL,NIRMAL LTD. SINGH 34 ROUND SQUARE B-163, AMAR EXIM PVT. LTD. COLONY,New Delhi BHUSHAN GOEL,VIJAY PAL RAWAT, AAECR5167Q 35 SAI INFOWEB PVT. 326, LGF, SANT LTD. ANIL AALCS5794H NAGAR, EAST OF KAILASH, New Delhi KUMAR,NITIN KUMAR CHADDA, 036 36 SUNSHINE INN PVT. LTD. B-163, AMAR DEVICHARAN, AAACS2056D COLONY,New Delhi MALLIKA DEVI, 37 TECHNOSOFT LTD. INFOSYSTEM P 326, LGF, SANT NAGAR, EAST OF KAILASH, New Delhi VIKAS AACCT3296) PRASHANT 38 THIRD R-17, PRIVATE ANIL AADCT1524A GENERATION COLONY, SRINIWAS TRADERS PVT. PURI, New Delhi KUMAR,ASHU DHINGRA, LTD. 39 VARDHMAN 7B/11A.SHRI MANOJ Page 33 of 302 AACCV0972B For R.N. Khemka Enterprises (P) Lta. Directa Document 9 8 NETWORK SOLUTIONS PVT. LTD. 40 YUNAN SALES PVT. LTD. NIWASPURI, EAST OF KAILASH, New Delhi-65 B-87, DEFE....
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....ed materials. 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:- SI. No Company Name Bank Branch A/C no. Registered Mobile no. Mail Id AMABRANU J FINANCE & 1 INVESTMEN T PVT LTD IDBI ASHOK VIHAR. DELHI ambarnuj fin 0201102000015 9810038489 (Anand 109 Jain) ance@rediff mail.com BRR ASHOK 2 SECURITIES VIHAR. 0201102000018 bersecurities PVT.LTD CP Iron IDBI KOTAK DELHI 577 9811764122 (Pankaj Jain) @gmail.com PREET 3 rniture Pvt. MAHIND 9310016550 (Kaushal VIHAR Lid RA 1832090000311 Kumar) CHANDRA 4 BUILDCON PVT LTD IDBI CHANDRA i BUILDCON KOTAK MAHIND RA PVT LTD COMO INFO SOLUTIONS PVT LTD IDBI DANODIA IMPEX PVT LTD KOTAK MAHIND RA ASHOK VIHAR, DELHI CHAND NI CHOWK ASHOK VIHAR, DELHI G.K. 020110200002 nareshjain_ca @rediffmail.c ....
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.... PVT. LTD. MACRO IT 12 SYSTEM PVT LTD IDBI KOTAK MAHIND RA ASHOK VIHAR. DELHI ROHINI DELHI 0201102000016 9818045781 (Naresh 490 Jain) officenol@re diffmail.com macroitsyste 9818045781 (Naresh [email protected] . 612011000968 Jain) m HDFC 3 MACRO IT BANK SYSTEM PVT LTD MAHA KOTAK 4 LAXMI MAHIND NORTH EX MALL, ROHINI DELHI CHAND NI 1347256000154 9818045781 (Naresh 2 Jain) 9818045781 (Naresh macroitsyste [email protected] m NARESHJAIN 018620000009 Jain) CA@REDIFF Per R.N. Khemka Enterprises (P) Lta. Director Document 13 Page 58 of 302 12 TRING CO RA CHOWK 03 33 MAIL.COM MAHADEV 35 INVESTMEN TS IDBI MANJU 36 FURNITURE KOTAK MAHIND PVT LTD RA ASHOK VIHAR. DELHI PREET VIHAR NORTH 0201102000014 9818045781 (Naresh 623 Jain) 183209000030 9310016550 (Kaushal NARESHJAIN CA@REDIFF MAIL.COM 3 Kumar) NEXT HDFC 37 GENERATIO BANK IN EXIM PVT LTD EX MALL. ROHINI DELHI 134784700000 9818045781 (Naresh 71 Jain) nextg....
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....635 expired) 134725600006 9818045781 (Naresh 61 Jain) nareshjain_ca @rediffmail.c SUBHLAXMI PORTFOLIO @REDIFF SUKUMAR B UILDWELL@ REDIFFMAIL. COM sukumar_buil dwell@rediff mail.com om 9313317121/9873938489 NORTH HDFC SUNSHINE 53 BANK INN PVT. EX MALL, ROHINI nareshjain_ca LTD DELHI 134725600006 9818045781 (Naresh 61 Jain) @rediffmail.c om SANJAY GANDH AXIS 54 SUNSHINE ITPT BANK INN PVT. LTD NAGAR, 913020043446 9818045781 (Naresh DELHI southernpacif [email protected] 390 Jain) m TECHNO SOFT 55 HDFC INFOSYSTEM NEHRU PLACE 1374232000102 9818045781 (Naresh IVATE LTD 0 Jain) TECHNO SOFT ASHOK 16 INFOSYSTEM VIHAR, 0201102000015 9818045781 (Naresh PVT LTD IDBI DELHI NORTH 376 Jain) technosoftinf osystem@gm ail.com THIRD HDFC 7 GENERATIO BANK N TRADERS PVT LTD THIRD GENERATIO KOTAK 3 N TRADERS MAHIND RA EX MALL. ROHINI DELHI MALVIY A NAGAR 7065438313 (Anil 134784700000 Kumar-used by Naresh thirdgentrade 61 Jain) ....
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