Vaghasia Exports Mumbai v. Acit 32 3 Mumbai

In The Income Tax Appellate Tribunal F Bench Mumbai Before Shri Saktijit Dey Judicial Member And Shr I N K Pradhan Accountant Member Ita No 1 2 4 Mum 2016 Assessment Year 20 07 08 M S Vaghasia Exports 5 Th Floor Bhavini Apartment Y R Tawade Road Dahisar E Mumbai 400 068 Pan Aaafv 20161 Q Appellant V S Asstt Commissioner Of Income Tax Circle 3 2 3 Mumbai Respondent Assesse E By Shri Vijay Mehta Revenue By Ms Pooja Swaroop Date Of Hearing 2 7 11 2017 Date Of Order 15 12 2017 O R D E R Per Saktijit Dey J M Captioned Appeal By The Assessee Is Directed Against The Order Dated 15 Th December 2015 Passed By The Learned Commissioner Appeals 44 Mumbai For The Assessment Year 2007 08 2 Grounds No 1 And 6 Being General In Nature Do Not Require Adjudication 2 M S Vaghasia Exports 3 In Grounds No 2 And 3 Assessee Has Challenged Validity Of The Assessment Order Passed Under Section 147 Income Tax Act 1961 For Short The Act 4 Brief Facts Are The Assessee A Partnership F Irm Is Engaged In Manufacturing And Sale Of Cut And Polished Diamond For The Assessment Year Under Dispute The Assessee Originally Filed Its Return Of Income On 7 Th Nov 2007 Declaring Total Income Of 75 43 736 Subsequently The Assessee Filed A Revis Ed Return Of Income On 29 Th September 2008 Declaring Income Of 48 00 382 Assessment In Case Of Assessee Was Originally Completed Under Section 143 3 Of The Act On 23 Rd December 2009 Determining The Total Income At 48 71 371 A Search And Seizure Operation Under Section 132 Of The Act Was Carried Out In Case Of Bhawarlal Jain Group On 3 Rd Oct 2013 By The Investigation Wing Of The Income Tax Department In The Course Of Such Search And Seizure Operation Various Incr Iminating Documents Were Recovered Which Revealed That The Entities In The Bhawarlal Jain G Roup Are Providing Accommodation Entries Of Bogus Unsecured Loans Bills Advanced Through Various Benami Concerns Operated And Managed By Bhawarlal Jain And His Son S From The Incriminating Material Found As A Result Of Search It Was Noticed That T He Assessee Is One Of The Beneficiaries Of Accommodation Entries As It Has Obtained Accommodation Entries From One Of The Group Entities Of Bhawarlal 3 M S Vaghasia Exports Jain Viz Kothari Co For An Amount Of 4 48 14 283 On The Basis Of Such Information Obtained From Director Of Income Tax Investigation Ii Mumbai The Assessing Officer Re Opened The Assessment Under Section 147 Of The Act By Issuing A Notice Under Section 148 Of The Ac T On 28 Th March 2014 After Complying To The Notice Issued Under Section 148 Of The Act Assessee Requested The Assessing Officer To Communicate The Reasons For Re Opening Of Assessment Which Was Duly Communicated To The Assessee By The Assessing Officer V Ide Letter Dated 18 Th August 2014 After Receiving The Reasons Recorded The Assessee On 3 Rd September 2014 Filed An Objection Before The Assessing Officer Challenging The Initiation Of Proceedings Under Section 147 Of The Act Stating Therein That It Has Not Availed Unsecured Loans And Advances Of 4 48 14 283 As Alleged In The Reasons Recorded For Re Opening Of Assessment It Was Specifically Submitted By The Assessee That No Such Loan Appears In The Balance Sheet Of The Assessee For The Relevant Financ Ial Year The Assessing Officer Ultimately Completed The Assessment Under Section 143 3 R W Section 147 Of The Act After Disallowing 8 Out Of Bogus Purchase Of 4 48 14 283 Which Worked Out To 35 85 143 Being Aggrieved Of The Addition Made By The As Sessing Officer Assessee Preferred An Appeal Before The Learned Commissioner Appeals Challenging Both The Validity Of Assessment Completed Under Section 147 Of The Act As Well 4 M S Vaghasia Exports As The Merits Of The Addition Made On Account Of Bogus Purchase As Far As The Validity Of Assessment Under Section 147 Of The Act Is Concerned The Learned Commissioner Appeals Though Accepted The Fact That The Assessing Officer Has Not Mentioned Anything Regarding The Objection Filed By The Assessee Against Re Opening Of Asses Sment Under Section 147 Of The Act However Without Recording Any Finding On The Specific Ground Raised By The Assessee Regarding Non Disposal Of Assessees Objection The Learned Commissioner Appeals Upheld The Validity Of Assessment Completed Under Se Ction 147 Of The Act By Holding That The Assessing Officer Has Re Opened The Assessment On The Basis Of Information Received From The Investigation Wing Regarding Escapement Of Income 5 Learned Authorised Representative Drawing Our Attention To Copy Of Th E Reasons Recorded As Communicated To The Assessee Which Is Placed At Page 51 Of The Paper Book Submitted That In The Reasons Recorded The Assessing Officer Has Referred To The Information Received From Dit Inv Mumbai In Letter Dated 10 Th March 2014 Stating About Bogus Unsecured Loans And Advances Entries Provided By Bhawarlal Jain Group To The Tune Of 4 48 14 283 Learned Authorised Representative Submitted The Assessee In An Objection Raised Before The Assessing Officer In The Course Of Assessment Proceedings Has Specifically Challenged The Basis For Re Opening Of Assessment 5 M S Vaghasia Exports Contending That In The Relevant Previous Year Assessee Has Not Availed Any Unsecured Loans Advances From Bhawarlal Jain Group As Mentioned In The Reasons Record Ed In This Context He Drew Our Attention To The Balance Sheet Of The Assessee For The Relevant Previous Year Learned Authorised Representative Submitted Though No Such Unsecured Loan Appears In The Balance Sheet Of The Assessee However The Assessing Officer Without Establishing The Nexus Between The Information Received And Formation Of Belief That Income Has Escaped Assessment Has Re Opened The Assessment Under Section 147 Of The Act He Submitted The Reasons Recorded By The Assessing Officer For R E Opening Of Assessment Is Merely On The Basis Of The Information Forwarded By The Dit Inv Hence The Satisfaction Reached By The Assessing Officer For Re Opening Of Assessment Is Not His Individual Satisfaction But Borrowed From The Observations Of As Sessment Of Dit Inv He Submitted Ultimately The Assessing Officer Has Completed The Assessment By Treating The Purchases Made By The Assessee From Kothari Co As Bogus Purchase And While Doing So Has Completely Departed From The Reasons Recorded Tha T The Assessee Has Obtained Unsecured Loans Or Advances From Bhawarlal Jain Group For Which He Re Opened The Assessment Under Section 147 Of The Act He Therefore Submitted The Assessment Made Under Section 147 Of The Act Without Examining The Evidence On Record Is 6 M S Vaghasia Exports Legally Unsustainable In Support Of Such Contentions He Relied Upon The Following Decisions I Signature Hotels Pvt Ltd V S Ito Anr 2011 338 Itr 51 Del And Ii Pcit V S Minakshi Overseas Pvt Ltd 2017 395 Itr 677 Del 6 The Second Proposition Of The Learned Authorised Representative Is In The Course Of Re Assessment Proceedings The Assessee On 3 Rd September 2014 Has Raised Objection Challenging The Validity Of Re Opening Of Assessment Under Section 147 Of The Act It Is The Specific Contention Of The Learned Authorised Representative That Before Completion Of The Assessment Under Section 143 3 R W Section 147 Of The Act The Assessing Officer Has Not Disposed Off The Objections Of The Assessee Independently Which Invali Dates The Re Assessment Order In Support Of Such Contention The Learned Authorised Representative Relied Upon The Following Decisions I Mspl Gasses Ltd V S Dcit W P No 1269 2015 Judgment Dated 27 01 2016 Bom Ii Pcit V S T U Pp E Rware India Pvt Ltd 2016 284 Ctr 68 Del 7 Learned Departmental Representative Submitted In The Course Of Search And Seizure Operation Conducted In Case Of Bhawarlal Jain Group Incriminating Material Was Fou Nd And Seized Revealing That T He 7 M S Vaghasia Exports Assessee Is One Of The Benefic Iaries Of Accommodation Entries Provided By Bhawarlal Jain Group She Submitted In A Statement Recorded Under Section 132 4 Of The Act Bhawarlal Jain Also Admitted The Fact Of Providing Accommodation Entri Es Through A Number Of Entities Concerns Contro Lled By Him And His Family Members Learned Departmental Representative Submitted These Information S Were Found Subsequent To The Completion Of Original Assessment In Case Of The Assessee Therefore There Was Tangible Material In The Possession Of The Assessing Officer To Indicate Escapement Of Income Therefore The Assessing Officer Was Justified In R E Opening The Assessment Under Section 147 Of The Act Learned Departmental Representative Submitted The Su Fficiency Of Reasons Recorded By The Assessing Officer Cannot Be Called Into Question At The Stage Of Re Opening Once The Assessing Officer Has Re Opened The Assessment On The Basis Of Tangible Information Available With Him Indicating Escapement Of Income She Submitted Whether There Is Actual Escapement Of Income Or Not Is To Be Examined By The Assessing Officer In The Course Of Assessment Proceed Ings And Not At The Ti Me Of Recording Of Reasons She Therefore Submitted The Assessing Officer Having Re Opened The Assessment On The Basis Of Valid Reasons The Assessment Order Cannot Be Challenged On That Ground As Far As The Issue Of Non Disposal O F Objections Is Concerned She Submitted It Has To Be Verified From The 8 M S Vaghasia Exports Record Whether The Objections Were Disposed Off By The Assessing Officer Before Completion Of Assessment 8 We Have Heard Rival Contentions And Perused The Material On Record We Have Also Applied Our Mind To The Decisions Relied Upon As Could Be Seen From The Factual Matrix Of The Case The Assessee Had Originally Filed Its Return Of Income On 7 Th Nov 2007 Assessment In Case Of Assessee Was Also Completed Under Section 143 3 Of The Act On 23 Rd December 2009 There Is No Dispute That The Re Opening Of Assessment Under Section 147 Of The Act Was Made By The Assessing Officer On 28 Th March 2014 Which Is After Expiry Of Four Years From The End Of The Relevant Assessment Year However W E Are Not Called Upon To Examine The Issue As To Whether The Assessees Case Comes Within The Ambit Of Proviso To Section 147 Of The Act The Validity Of The Impugned Assessment Order Has Been Challenged By The Assessee Basically On The Following Two Propo Sitions As Put Forth By The Learned Authorised Representative I The Formation Of Belief By The Assessing Officer Has No R Ational Nexus With The Evidence Material Available With The Assessing Officer And 9 M S Vaghasia Exports Ii The Assessing Officer Has Not Disposed Off The Objection Raised By The Assessee Independently Before Completion Of Assessment Under Section 143 3 R W Section 147 Of The Act 9 At The Outset We Propose To Deal With The Second Proposition Advanced By The Learned Authorised Representative As Could Be Seen From The Materials On Record After Complying To The Notice Issued Under Section 148 Of The Act The Assessee Requested The Assessing Officer To Communicate The Reasons For Re Opening Of Assessment The Assessing Officer Vi De Letter Dated 18 Th August 2014 Communicated The Reasons For Re Opening Of Assessment To The Assessee As Could Be Seen From The Reasons Recorded The Assessing Officer Formed The Belief That Income Has Escaped Assessment On The Basis Of Information Rece Ived From Dit Inv Mumbai That The Assessee Has Availed Unsecured Loans And Advances Of 4 48 Crores After Receiving The Reasons Recorded The Assessee Vide Letter Dated 3 Rd September 2014 Objected To The Re Opening Of Assessment Under Section 147 O F The Act Specifically Stating That No Such Unsecured Loans Or Advances Were Received By The Assessee From Bhawarlal Jain Group In This Context The Assessee Also Drew Attention Of The Assessing Officer To The Details Of Unsecured Loans And Advances Credi Tor As Reflected In The Audited Balance Sheet Of The Assessee As At 31 St March 2007 Thus The 10 M S Vaghasia Exports Assessee While Specifically Denying The Allegation Of The Assessing Officer Regarding Obtaining Of Unsecured Loans And Advances To The Tune Of 4 48 14 283 From Bhawarlal Jain Group Requested To Drop The Re Assessment Proceedings As It Appears The Assessing Officer In Spite Of Receiving Objection Of The Assessee Did Not Dispose It Off Before Completing The Assessment The Objection Raised By The Assessee Befor E The Assessing Officer Assumes Considerable Importance Considering The Fact That The Assessing Officer In The Reasons Recorded Has Formed A Belief Of Escapement Of Income On The Basis That The Assessee Obtained Accommodation Entries Of Unsecured Loans And Advances From Bhawarlal Jain Group Of 4 48 14 283 Whereas While Completing The Assessment He Has Held The Purchases Of 4 48 14 283 From Kothari Co As Bogus And Has Disallowed 8 On Estimate Basis Out Of Such Purchases Though The Assessee Has Raised A Specific Ground Being Ground No 2 Before The Learned Commissioner Appeals Challenging Non Disposal Of Its Objection By The Assessing Officer However The Learned Commissioner Appeals While Dealing With The Said Ground Raised By The Assessee Though Has Agreed That The Assessing Officer Has Not Mentioned Anything Regarding The Objection Of The Assessee Against The Re Opening However He Has Not Recorded Any Finding Of His Own On The Issue And Has Left It Undecided Learned Departmental Representative In Spite Of Sufficient Time Being 11 M S Vaghasia Exports Given To Her Has Also Not Controverted The Contention Of The Assessee That The Assessing Officer Has Not Disp Osed Off The Objection Raised By It Before Completion Of The Assessment Therefore Assessees Contention That Regarding Non Disposal Of Its Objections Challenging Re Opening Of Assessment Prima Facie Appears To Be Correct That Being The Case It Is Now N Ecessary To Examine Whether Non Disposal Of The Objections Raised By The Assessee Invalidates The Assessment Order Passed By Under Section 143 3 R W Section 147 Of The Act The Honble Supreme Court In Gkn Drive Shafts I Ltd V S Ito 2003 259 Itr 19 Sc Has Held That The Assessing Officer Is Duty Bound To Dispose Off The Objections Raised By The Assessee Challenging The Validity Of Re Opening Independently Before The Completion Of Assessment The Honble Jurisdictional High Court In Mspl Gasses Ltd Supra Following The Aforesaid Decision Of The Honble Supreme Court Has Held That Completion Of Re Assessment Without Disposing Off The Objections Raised By The Assessee Invalidates The Order Passed By The Assessing Officer And Such Order Being Without J Urisdiction Has To Be Quashed The Honble Delhi High Court In Tu Pp E Rware India Pvt Ltd Supra Has Also Expressed Exactly Similar View By Holding That Non Disposal Of Th E Objections By The Assessee Would Result In Quashing Of Re Assessment Order Thus Keeping In View The Ratio Laid Down In The Judicial Precedents Referred To Above We Are Of The Considered View 12 M S Vaghasia Exports That The Impugned Assessment Order Passed Under Section 143 3 R W Section 147 Of The Act Is Invalid As The Assessing Officer Has Not Disposed O Ff The Objections Of The Assessee Challenging The Validity Of Re Opening Of Assessment Before Passing The Impugned Re Assessment Order Accordingly The Impugned Assessment Order Deserves To Be Quashed We Direct Accordingly 10 In View Of The Aforesaid Deci Sion We Do Not Propose To Deal With The Other Propositions Of The Assessee On The Validity Of Re Opening Of Assessment As Well As The Grounds Raised On Merits As They Are Of Mere Academic Interest 11 In The Result Assessees Appeal Is Allowed Order Pronounced In The Open Court On 15 12 2017 Sd Sd Sd N K Pradhan Accountant Member Sd Saktijit Dey Judicial Member Mumbai Dated 15 12 2017 Copy Of The Order Forwarded To 1 The Assessee 2 The Revenue 3 The Cit A 4 The Cit Mumbai City Concerned 5 The Dr Itat Mumbai 6 Guard Fil E True Copy By Order Pradeep J Chowdhury Sr Private Secretary Dy Asstt Registrar Itat Mum Bai