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2024 (6) TMI 1132
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....d case for discussions as the issues involved in the lead case are common and inextricably interlinked or in fact interwoven and the facts and circumstances of other cases are identical except the difference in the amount of penalty in other assessment year. The ld. DR did not raise any specific objection against taking that case as a lead case. Therefore, for the purpose of the present discussions, the case of ITA No. 317/Jodh/2023 is taken as a lead case. 4. Before moving towards the facts of the case we would like to mention that the assessee has assailed the appeal in ITA No. 317/Jodh/2023 on the following grounds; 1. That learned CIT 'A' has erred in confirming that assessment under section 144 and addition made by AO Rs. 1,70,00,070/- is in order. The assessment was made without providing proper opportunity and considering full facts and circumstances of the case. Hence the order passed by learned AO be quashed. 2. That the Learned CIT 'A' has erred in confirming that addition of Rs. 1,69,01,000/- on account of cash deposited in Banks u/s 69 of the Act. The addition was made without following provisions of law and considering full facts of the case. Hence....
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.... the A.Y. 2011-12 within the meaning of section 147 of 1.T. Act, 1961. 5.2 Since the income chargeable to tax has escaped the assessment, proceedings under the provisions of section 147 of the I.T. Act, 1961, were initiated and notice u/s. 148 of the I.T.Act, 1961 was issued by the DCIT, Cirele-2, Udaipur after according necessary approval of Pr.Commissioner of Income-tax, Udaipur vide his office letter No.3587 dated 15.03.2018 which was served upon the assessee through email and speed post. Subsequently, notice u/s. 142(1) alongwith a questionnaire vide dated 13.08.2018 were issued to the assessee and sent through email and speed post, asking the assessee to furnish relevant details, certain explanation and supporting documentary evidences. Simultaneously, the requisition of information under the provisions of section 133(6) of the Income Tax Act, 1961 has been pursued from various bank branches in the ease of the assessee. But, in response to the notice u/s 142(1) issued to the assessee, nobody attended nor replied. 5.3 However, for sake of convenience and in the interest of natural justice, another notice as 142(1) issued on 29.10.2018 giving further opportunity of being h....
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....her to furnish even a single reply/submission. As is evident from the facts of the case of the assessee that since inception of proceedings in the case of the assessee, the assessee totally remained non co-operative towards furnishing requisite details/information/clarification and explanation sought for from time to time. The case of the assessee is time barred one and the limitation for completion of assessment in this case is expiring on 31.12.2018 as such the undersigned has left no alternate but to complete this assessment as an ex-parte under the provisions of section 144 of the I.T. Act, 1961 on the basis of details/material/information and supporting documentary evidences available with ld. AO. During the course of assessment proceedings, it is noticed that total cash of Rs.1.23.26,000/- deposited on various dates in assessee's current account No.84501010007333 at Syndicate Bank, Udaipur and cash aggregating to Rs 45,75,000/- also deposited in the asseesee's bank account No.7721130000000 at Oriental Bank of Commerce. Udaipur as per information available on record and further information gathered from respective banks. ....
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....rtunities to make the necessary submissions in support of his claims. However, no response has been made by the appellant. The onus of explaining the source of cash deposit and deduction claimed in the impugned year, to the satisfaction of the AO, rested solely on the assessee. In absence of any explanation and supporting evidence, I believe the action of the AO in bringing to tax, the cash deposit of Rs. 1,69,01,000/- & Rs. 1,00,000/- as unexplained deduction, cannot be faulted. Hence, the addition of Rs. 1,70,01,000/- is upheld. In result, the appeal is dismissed." 7. As the assessee did not find any favour from the order of the ld. CIT(A), the assessee has preferred the present appeal before this Tribunal on the ground as reproduced hereinabove. To support the various grounds so raised by the ld. AR of the assessee, has filed the written submissions and the same is reproduced herein below. 1. Appellant is an individual assessee. 2. Appellant is in private service . 3. On behalf of appellant someone else filed his return of income by misusing his KYC documents on 02.07.2011 declaring income of Rs 3,89,070/-. The Income declared is from Busin....
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....made by the AO Rs 1,70,00,070/- is in order. The assessment was made without providing proper opportunity and considering full facts and circumstances of the case. Hence the order passed by the Learned AO be quashed. 2. That the Learned CIT 'A' has erred in confirming addition of Rs. 1,69,01,000/- treating the cash deposited in banks as Cash Credit u/s section 69 of the Act. The addition was made without following provisions of law and considering full facts of the case. Hence addition of Rs 1,69,01,000/- made be deleted, 3. That Learned CIT 'A' has erred in confirming disallowance of claim of Rs. 1,00,000/- made u/s 80C of the I T Act . The disallowance is made without considering full facts of the case and providing proper opportunity. Hence the addition of Rs 1,00,000/- be deleted. OUR SUBMISSION 1. IT is respectfully submitted that all additions in this case is made on the basis of fraudulent return filed by Shree Bharat Bomb by misusing KYC of Sh Pradeep Nimawat. In view of above, we are submitting in following to establish that it is Bharat Bomb who misused the ID Proof of appellant, opened various bank account, various trading concern and ....
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....iends and staff ) either taking them into confidence, with or without their knowledge and also formed no. of LLPs, Partnership Firms, Private Limited Companies. He has also obtained VAT Registration for many of these firms. His used these entities for creating fictitious turnover in these entities to obtain higher bank loans and other credit facilities and round tripping of transactions and to maintain credit flow cycle. System of obtaining fictitious bank credit/loans are as under: a) Get registered one Proprietorship or Partnership Firm, LLP, Pvt Ltd Company using fake/photo shopped PAN Card and Other Identification Card of his client, relatives and known person, without their knowledge. b) With the help interested officers of the bank , credit limit by way of home loan, business loan, bill discounting facilities was got sanctioned against securities of fake title deed of properties, letter of credit , insurance policies etc. c) The fund so received is utilised for his own use and when repayment liabilities starts, another firm has been created using the method stated above and fresh credit limits were got in that firm's name . d) As s....
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....is entire scam was carried out with the help of bank officers. It is respectfully submitted except few person, all persons whose KYC was used by him are unaware about these operations and bank account of these persons were operated by the staff of Bharat Bomb. Further he claimed refund of Tax Credit so generated on these fictitious incomes, and deposited refund in the same bank account in which all these transactions are made. However as soon as CBI and ED stepped in, they called all these person's whose account were used by Mr. Bharat Bomb for interrogation and in his confession before CBI/ED Mr. Bharat Bomb agreed that by using KYC of these persons he opened and operated these accounts. Further after making preliminary inquiry from these persons CBI/ED filed an FIR against Mr. Bharat Bomb and Bank Officers. Lateron Charge sheet is filed against him and various bank officers. Presently ED and CBI both are pursing cases against these banks. SPECIFIC TO THE APPLELLANT 1. Mr. Bharat Bomb opened following Bank account by using KYC of appellant: a) Syndicate Bank Udaipur : Bank Account No84501010007333 b) Oriental Bank of C....
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....bmission of the appellant that these bank accounts are opened and operated by Shree Bharat Bomb, despite having ample time at his command has not made inquiry from the Bank and obtained specific information about the correct position that whatever appellant stated is correct or not and of cross examination of his so called employer despite having ample time, also to fail verify the fact that appellant is not doing service there. 7. It is further respectively submitted that Salary Income , Interest Income is added on basis of entries found in Form 26AS, on which appellant has no control. 8. It is further respectively submitted in similar case of Shree Deepak Wahi PAN No AACPW6790R, learned CIT (A) of NefAC deleted various addition with following remark : a) Regarding Professional Receipt : 4.2. I have considered the facts of the case, assessment order and appellant's submissions. The AO noted that ITS data pertaining to F.Y. 2015-16, relevant to A.Y. 2016-17, showed that the assessee received income at Rs. 24,75,000/- on account of fees for professional & technical services from M/s Rajshikhar Material Trading LLP, and the TDS on such amount was d....
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....vehemently denied rendering any professional service to anyone including Rajshikhar Trading Co LLP. On careful consideration of the facts of the case,appellant's submissions and details brought on record by the appellant, I am inclined to agree with the appellant's claim. From the facts and details brought on record, it is clear that Mr. Bharat Bomb misused name / KYC for opening fake firms, opening bank accounts and doing fake transactions in the name of appellant. This fact gets support from the confessional statement of Mr. Bharat Bomb recorded before the ED/CBI, copy of which is supplied by the appellant in the submissions filed. This very fact was before the AO, however, he did not give much importance because account opening Form bears signature of the assessee and KYC details pertained to the assessee. Secondly, Form 26AS of the assessee showed details of amount credited by M/s Rajshikhar Material Trading LLP and details of TDS deducted thereon. 4.2.1. As regards the AO's concern that account opening Form bears signature of the assessee and KYC details pertained to the assessee, I find that once it is proved that Mr. Bharat Bomb misused name / KYC for opening fake f....
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....er passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. Appellant had contested the truthfulness of the statement of these two witnesses and wanted to discredit their testimony for which purpose it wanted to avail the opportunity of cross-examination. That apart, the Adjudicating Authority simply relied upon the price list as maintained at the depot to determine the price for the purpose of levy of excise duty. Whether the goods were in fact sold to the said dealers/ witnesses at the price which is mentioned in the price list itself could be the subject matter of cross-examination. Therefore, it was not for the Adjudicating Authority to presuppose as to what could be the subject matter of the cross-examination and make the remarks as mentioned above." Considering the facts of the case, I have no doubt that in the present case; the bank accounts were opened by Mr. Bharat Bomb fraudulently, in the name of the appellant, by misusing his name/signature and KYC without the appellant's consent. ....
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....ekar vs. ITO 2016] 74 taxmann.com 151 (Chennai - Trib.) held that where assessee claimed that there was wrong credit entry by payer-client in Form 26AS, Assessing Officer had to examine its genuineness. Thus, from ratio laid down in the above judicial precedents, it is clear that no addition can be made simply on the basis of entries reflected in the Form 26AS. It is the duty of the AO to make further verification where the assessee disputes the entries reflecting in the Form 26AS and only after verification, if he finds any discrepancy in assessee's claim, than only he can make any addition. Here, I may refer to the decision of the Hon'ble High Court of Delhi in the case of Court On Its Own Motion vs. CIT [2013] 31 taxmann.com 31 (Delhi) wherein the Hon'ble Court considered, on its own and in response to a Public Interest Litigation, difficulties faced by assessees after computerization and central processing of income tax returns and issued seven mandamus. These seven mandamus include the issues relating to entries reflecting in the Form 26AS and wrong deduction of TDS by the Deductor. Thus, it has been concerns of the court that regarding processing of returns ....
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....n the ITBA Portal, the appellant has submitted that as these accounts were not opened by the appellant himself, then his mobile number and email-id also must not be there and as communication is only made though registered mobile and email id, hence there was no occasion for appellant to have information regularly on real time basis. The appellant has further submitted that he only came to know about these accounts only after CBI/ED issued notice to him as he has no connection with Syndicate Bank and Canara Bank. He came to know about these accounts after receiving a letter dated 07/04/2016 from Vigilance Department of Syndicate Bank asking him about various bank accounts. The appellant claimed that in letter to the bank, he denied about opening of any account in Syndicate Bank and requested bank to take strong legal action as these were fake accounts. To support his claim, the appellant has furnished copy of Bank's letter and appellant's letter filed before the Manager (Vigilance),Syndicate Bank, Udaipur on 20/04/2016. The appellant has further submitted that the main culprit (Mr. Bharat Bomb), who did this, was already under custody of CBI/ED hence he could not make complain ....
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....n as his belonging or income. In fact the appellant, as soon as came to know about the fact that his name and KYC details were used by Mr. Bharat Bomb for opening bank accounts, has denied to have opened any bank accounts in his name. It may be noted that investigation agencies called the appellant along with other persons, who's KYC were used in opening of these account, and these persons categorically denied of opening any bank account nor made claim on money found deposited in these account and allowed investigation agencies to forfeit it. Even investigation agency held that the appellant and other victimsare not co-accused in this process. It may also be noted that Mr. Bharat Bomb already accepted this fact before CBI/ ED and affected banks also filed criminal complaint again him, on the ground that these accounts were opened by misusing KYC of persons known to Mr. Bharat Bomb. All these facts prove that these bank accounts do not belong to the appellant nor any amounts of FD and interest credited on maturity belong to the appellant. Moreover, it is already discussed that no addition can be made merely on the basis of entries reflected in the Form 26AS. Form 26AS is a ....
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....the AO is not justified in holding that the bank account, wherein interest income on FDRs at Rs. 11,71,206/- credited, is belonged to the appellant. The appellant has satisfactorily proved that these bank accounts were not opened by him and only his name and KYC were used by Mr. Bharat Bomb for opening these bank accounts. Thus, interest amounts credited in these bank accounts do not represent the appellant, the addition made at Rs. 11,71,206/- is directed to be deleted. Ground No. 2 raised by the appellant, regarding this issue, is allowed. c) Regarding Amount Deposited in Bank 6.2. I have considered the facts of the case, assessment order and appellant's submissions. The AO made the addition of Rs. 6,99,10,134/- on account of Peak Balance (A/c. No. 84501010008262 of Syndicate Bank), Rs. 4,99,40,698/- on account of Peak Balance (A/c. No. 84502010083668 of Syndicate Bank) and Rs. 2,48,013/- on account of Peak Balance (A/c. No. 01691310000019 of Canara Bank, after stating that the assessee failed to furnish any detail regarding transactions appearing in these bank accounts. In the written submissions, uploaded on the ITBA Portal, the appellant had reiterated that t....
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....uld have taken some cue. However, from the facts and details brought on record, it is clear that the appellant has not formed any firm in the name and style of Deepak Traders because the appellant already got one registered sole proprietorship firm in the name & style of M/s Marble 2000 INC under the provision of Rajasthan VAT Act- 2003 since 04/01/2000 and one person cannot have registration of two sole proprietorship firms. In these bank accounts, all the financial transactions are related to Deepak Traders, which was fraudulently opened by using the appellant's name and KYC details by Mr. Bharat Bomb. These facts clears that these bank accounts did not belong to the appellant nor do any financial transactions, appearing in these bank accounts, belong to the appellant. 6.3. At this juncture, I may refer to the decision of the Hon'ble ITAT Mumbai Bench 'E' (Special Bench) rendered in the case of GTC Industries Ltd. v. ACIT [2017] 80 taxmann.com 284 (Mumbai - Trib.) (SB). The Hon'ble Mumbai Bench specifically held that where revenue made addition to assessee's income on the ground that cigarettes manufactured by it were sold at a price higher than MRP and said ....
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....ial ownership of assessee over money/financial transactions reflected in the bank accounts, which were opened fraudulently by misusing the appellant's name and details. 6.5. It is pertinent to mention here that the Mr. Bharat Bomb's case for the AY 2013-14 was reopened and the assessment u/s. 147 r.w.s 144 read with section 144B of the Income-tax Act was completed vide order dated 26/05/2023. The AO's observation / findings recorded in the assessment order dated 26/05/2023 are reproduced as under:- "1. Facts of the case in brief: Information and evidences, as available on record with the Income Tax Department, showed that Mr. Bharat Bomb, the assessee, had involved in taking fraudulent and fake transactions in the three branches of Syndicate Bank namely Jaipur Malviya Nagar, Jaipur M.I. Road and Udaipur branches, to taling to Rs. 1000.63 crores. The fraud was done over a period of more than four years and it is estimated that 157 accounts were used and defrauded the Bank by resorting to Discount of Fake cheques, discount of fake inland bills and arranging overdraft limits against non existent LIC policies. These fraudulent transactions were done deliberat....
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....3/2014, was Rs. 8,11,450/-. This does not commensurate with the huge amount transactions carried out by the assessee. The assessee has not submitted explanation regarding transactions, deposits and credits in various bank account in the Syndicate bank. ............................................................................... 5. During initial verification carried out by the Income Tax Department, statements were recorded from the assessee and were placed on record.n perusal of the statement u/s 131 of the I.T. Act, 1961, recorded on 13.3.2019, it is noticed that, in question No. 7 the assessee was asked how assessee and others have done the fraud with Syndicate Bank. In the reply the assessee stated that the assessee and others had defrauded the Bank by resorting to Discount of Fake cheques, discount of fake in land bills and arranging overdraft limits against non-existent LIC policies. Further in question No. 9, the assessee was asked about the bank statements of the 10 persons and about the transactions in their bank accounts. In the reply assessee admitted that all the 10 people were relatives and employees and that the assessee have fraudulently used the....
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....ome through receipts/credits. During the financial year 2012-13 relevant to the assessment year 2013-14, the following transactions have taken place: Branch BIC Branch Type of transaction Custome rinvolved Date oftrans action Amou ntinvo lved 8450 Syndicate Bank, OD against LIC PradeepNimawt 28/01/2013 2,50,00,000 Udaipur policy 8450 Syndicate Bank, Udai pur OD againstLIC policy Mahendra Mehwal 28/01/2013 1,75,00,000 8450 Syndicate Bank, Udai pur OD againstLIC policy PiyushDh armawat 29/01/2013 2,50,00,000 8450 Syndicate Bank, Udai pur OD againstLIC policy ChandraK alaDharm awat 29/01/2013 2,50,00,000 8450 Syndicate Bank, Udai pur OD againstLIC policy Bhaskar Jain 30/01/2013 2,50,00,000 Total 11,75,00,000 These were financial benefits received/gained by the assessee through his....
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....uppliers, Naveen Construction, Shubh Metal Industries, Everest Construction & Civil works. Jai Shankar Impex, Arihant Financial Services, Fairdeal Trade Industries, Jain Traders, Keshariya Metal Industries, Lucky Trade Industries, Raj Minerals, Janhavi Construction Com, Rameshwaram Material Trading Co. (P) ltd., Nakoda Construction Co., Shriram Exim Trade, Shri Nath Exim Trade, Laxmi Trading Co., Radhika Enterprises, Friends Timber, Babel Construction, Target Handicrafts, B.K. Builders, Deepak Traders. VK Enterprises, Kiran Buildtech, Urvashi Minerals, Narayan Bhil, BMR Construction, Tanvi Digitech etc. iii) On being ask as how he was monitoring transactions of so many firms he stated that on daily basis he was getting information from the bank as to how much amount was required to be deposited against outstanding CDD/Bill's discounting and other loans and accordingly cash was withdrawn from the bank and as when required new forged cheque bill was presented for discounting so that rotation can go on." 6.1. In view of the facts discussed above and judicial precedents cited supra, it is held that the AO is not justified in holding that bank account No. 845010100....
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....he fact that big fraud was happened, the assessee was victimized by the group of people. We take rationale view, and the additions are duly deleted. In our considered view, the assessment order is itself erroneous due to absence of proper verification and cross verification related to addition during assessment. Accordingly, we set aside the appeal order and the assessment order is quashed. " 10. In order to further explain how bank officers and Mr. Bharat Bomb misuse the name of appellant and other persons we are submitting copies of following orders of Debt Recovery Tribunal Jaipur : a) Canara Bank Vs Nakoda Construction Co (Sole Proprietor Pradeep Nimawat OA No 84 of 2018 This is a proprietorship firm formed by Bharat Bomb using name of Appellant Pradeep Nimawat a loan of Rs 25.86 Crore was raised. Outstanding on the date OA was Rs 15.44 Crore. Page 3 Para 10. The matter where the credit facilityas claimed in the O.A. in favor of the defendants and the defendants filed an application with bill of exchange Annexure A-3 to A-22. The Most alarming document is Demand Promissory Note as Annexure A-23 of the applications which bears s....
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....n Canara Bank vs. Shree Nakoda Construction Co (Prop Pradeep Nimawat) 361 364 11 Copy of Statement Recorded at CBI/ED of Pradeep Nimawat 9. The ld. AR of the assessee in addition to the above written submission particularly drawn our attention the order of the debt recovery tribunal order dated 18.11.2022 wherein the DRT in the recovery petition filed by the Canara Bank for an amount of Rs. 25,86,22,917/- against the assessee observed that [ assessee paper book page(APB) 363 ] "para 10-> The most alarming document is Demand and Promissory note at Annexure A-23 of the application which bears signatures of Shri Pradeep Nimavat but the entire details are missing in the Demand Promissory Note, Annexure A-23. Para 11. ->Similar is the position of Annexure A-24 Hypothecation Agreement running from page no 35 to 54 and this agreement is completely bank even the name of the borrower, the account sanctioned details of the hypothetical, details of stock, the rate of interest etc., is not mentioned. Para 14- > After having perused the documents, I am of the considered view that the demand and promissory note and the hypothecation agreement at Annexure A/23 &....
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....s name. He further disclosed that all the bank accounts, (except the bank account maintained in the Bank of India which was opened by him), where opened by Shri Bharat Bomb in his name by adopting fraud tactics in obtaining his documents. 5. I have carefully examined the facts of the instance case and also carefully pursued the relevant documents obtained from the concerned bank; i.e. bank statements, bank account opening forms, KYC etc., it is indeed true that Shri Bharat Bomb, the assessee found indulge in the Syndicate Bank scheme and has been sentenced to imprisonment on account of his indulgement of Syndicate Bank scam. On deep examination / verification of the fact of the case and material available in this office and after properly applying mind it has been concluded that the assessee has made total cash deposits of □2,46,90,000 in the saving bank accounts opened by him in the name of Shri Pradeep Nimawat in the bank branches of Oriental Bank of Commerce and Syndicate Bank. 9.1 Based on the above reasons so recorded when the ld. AO has categorically after obtaining all the information formed a view that the total cash deposit of Rs. 2,46,90,000/- made in th....
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.... Syndicate Bank and one CA named Mr. Bharat Bomb were arrested by CBI and ED. Large number of bank accounts operated by these persons were attached. Shri Bharat Bomb was the key person and master mind of this fraud. In support of the contentions so raised the ld. AR of the assessee relied upon the following documents in support of the various grounds so raised in this appeal: a) Copy of Order of ED b) Copy of Statement Recorded before ED/CBI of Bharat Bomb c) Copy of Note on Bharat Bomb's Statement d) Copy of Reasons Recorded in case of Bharat Bomb by the AO for reopening of Case u/s 147. e) Copy of Assessment Order of Bharat Bomb For A Y 2011-12 f) Copy of Order in case of Bharat Bomb for in which it is mentioned that case is reopened only to meet contingency of adverse decision of higher authorities in case of Nitin Parikh and Pradeep Nimawat for A Y 2013-14. g) Copy of Assessment Order of Bharat Bomb for AY 2016-17 in which Bharat Bomb's confirmation of fact that he misused name of assessee for his own benefit and it is he who operated these bank accounts is recorded. h) Copy of CIT Appeal order in case of D....
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.... that a) In the similar set of facts NFAC/CIT(A) in case of Deepak Wahi accepted the fact that addition cannot be made in the hands of the assessee when he has in a statement recorded that he has not done this transaction. The finding of the ld. NFAC is reiterated herein below "6.6. In view of the facts discussed above and judicial precedents cited supra, it is held that the AO is not justified in holding that bank account no. xxxx of Syndicate bank, A/c no. xxx of Syndicate Bank and A/c no. xxxx of Canara Bank, belonged to the appellant. The AO has not done dud diligence to cross verify the 15CA/CB forms, allegedly issued by the appellant. This forms involves three parties who are (i) The remitter, (ii) The Chartered Accountant (iii) The Bank officer. Once the appellant denied these forms all together, the AO must have summonded the Bank officer and CA who have signed these forms which AO failed. On the other hand, the appellant has satisfactorily proved that these bank accounts were not opened by him and only his name and KYC were used by Mr. Bharat Bomb for opening these bank accounts. Thus, financial, transactions appearing / credited in these bank accou....