DCIT CEN CIR 42, MUMBAI v. KISHOR KUMAR ARYA, MUMBAI

ITA 4665/MUM/2013 | 2005-2006
Pronouncement Date: 26-10-2016 | Result: Allowed

Appeal Details

RSA Number 466519914 RSA 2013
Assessee PAN AABPA3640D
Bench Mumbai
Appeal Number ITA 4665/MUM/2013
Duration Of Justice 3 year(s) 4 month(s) 12 day(s)
Appellant DCIT CEN CIR 42, MUMBAI
Respondent KISHOR KUMAR ARYA, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 26-10-2016
Appeal Filed By Department
Order Result Allowed
Bench Allotted I
Tribunal Order Date 26-10-2016
Date Of Final Hearing 25-07-2016
Next Hearing Date 25-07-2016
Assessment Year 2005-2006
Appeal Filed On 14-06-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES I MUMBAI BEFORE SHRI G.S. PANNU (ACCOUNTANT MEMBER) AND SHRI RAVISH SOOD (JUDICIAL MEMBER) ITA NO. 4665 - 4667 /MUM/201 3 ASSESSMENT YEAR: 20 0 5 - 0 6 2008 - 09 & 2009 - 10 DCIT CENTRAL CIRCLE - 42 VS. SH. KISHOR E KUMAR ARYA MUMBAI 2D VICEROY PARK KANDILVALI(E) MUMBAI - 400 101 PAN NO. AABPA3640D (APPELLANT) (RESPONDENT) REVENUE BY : SHRI B.C.S. NAIK (CIT - DR) ASSESSEE BY : NONE DATE OF HEARING : 25/07/2016 DATE OF PRONOUNCEMENT : 26 / 10 /2016 O R D ER PER RAVISH SOOD JUDICIAL MEMBER : T HE PRESENT APPEALS FILED BY THE ASSESSEE PERTAINING TO ASSESSMENT YEARS 2005 - 06 2008 - 09 AND 2009 - 10 INVOLVING THE SAME ISSUE ARE DIRECTED 2 KISHORE KUMAR ARYA ITA NOS. 4665 - 4667/MUM/2013 AGAINST THE RESPECTIVE ORDERS PASSED BY CIT(A) - 38 MUMBAI EACH DATED 28/03/2013 WHICH IN TURN HAVE ARISEN OUT OF ORDER PASSED BY THE ASSESSING OFFICER (IN SHORT A.O) UNDER SECTION 144 R.W.S. 153A OF THE INCOME TAX ACT 1961 (IN SHORT THE ACT) . 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN ALL THE THREE YEARS ARE IDENTICAL EXCEPT FOR DIFFERENCE IN FIGURES. THE GROUNDS OF APPEAL FOR ASSESSMENT YEAR 200 5 - 0 6 READ AS UNDER: - (A). A.Y. 2005 - 06 : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE L D. CIT(A) ERRED IN DELETING ADDITION OF RS. 12 50 00 000/ - MADE U/S 68 OF THE ACT BY HOLDING THAT THE IMMEDIA TE SOURCE OF FUNDS IS IDENTIFIED AS M/S RAJAT PHARMACHEM LTD WITHOUT APPRECIATING THAT THE ADVANCES WERE NOT RECEIVED DIRECTLY FROM M/S RAJAT PHA RMACHEM LTD BUT WERE ROUTED THROUGH DUMMY COMPANIES. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD CIT(A) ERRED IN DELETING ADDITION OF RS. 12 50 00 000/ - MADE U/S 68 OF THE ACT WITHOUT APPRECIATING THAT THE NATURE AND PURPOSE OF ADVANC ES HAS NOT BEEN EXPLAINED. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUND BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND AND/OR ADD NEW GROUNDS WHICH MAY BE NECE SSARY . 3. WE HEREIN ADVERT TO THE FACTS INVOLVED IN THE APPEAL OF THE ASSESSEE FOR THE A.Y. 2005 - 0 6 MARKED AS ITA NO. 4665 /MUM/201 3 . THE BRIEF FACTS OF 3 KISHORE KUMAR ARYA ITA NOS. 4665 - 4667/MUM/2013 THE CASE ARE THAT SEARCH AND SEIZURE PROCEEDING U/S 132 OF THE ACT WERE CONDUCTED AS ON 12.12.2008 ON RAJAT PHARMACHEM GROUP OF CASES (FOR SHORT GROUP) THEREIN COVERING THE MAIN COMPANY M/S RAJAT PHARMACHEM LTD. MUMBAI (FOR SHORT COMPANY) THE DIRECTORS OF THE COMPANY AND OTHER ENTITIES CONNECTED WITH THE GROUP. THE ASSESSEE ALONG WITH HIS BROTHER SH. INDERJEET ARYA WERE THE KEY PLAYERS MANAGING THE AFFAIRS OF THE COMPANY WHICH WAS ENGAGED IN THE BUSINESS OF MANUFACTURING IMPORT AND EXPORT OF PHARMACEUTICAL PRODUCTS AND WAS A GOVERNMENT OF INDIA RECOGNIZED O NE STAR EXPORT HOUSE . THE COMPANY HAD FLOATED A SEZ BY THE NAME OF RAJAT INDUSTRIAL PARK UNDER THE A EGIS OF M/S RAJAT INTERNATIONAL A UNIT OF THE AFORESAID COMPANY AT BAZPUR DISTRICT UDDHAM SINGH NAGAR UTTRAKHAND . 3 .1 THAT AS STANDS GATHERED FROM THE RECORDS OF THE LOWER AUTHORITIES THE AFORESAID GROUP WAS VISITED BY THE DIRECTORATE OF REVENUE INTELLIGENCE ENFORCEMENT DIRECTOR ATE AND THE CENTRAL BUREAU OF INVESTIGATION AND ACTION UNDER THE RESPECTIVE LAWS OF THE LAND WAS THEREAFTER INITIATED AGAINST THE AFORESAID GROUP FOR VIOLATION OF EXPORT LAWS RAISING OF FRAUDULENT CLAIMS OF DEPB CREDITS AS WELL AS CERTAIN OTHER FINANCIAL INFRACTIONS INVOLVING BANKING CHANNELS. THE GROUP WAS FOUND TO HAVE RESORTED TO CERTAIN BOGUS PAPER TRANSACTIONS PERTAINING TO EXPORT OF PHARAMACEUTICAL PRODUCTS TO/THROUGH CERTAIN ENTITIES AND THE INVESTIGATIONS REVEALED THAT THE ASSESSEE AND HIS BROTHER SH. INDERJEET ARYA WERE ACTIVELY ENGAGED IN SIPHONING OFF THE FUNDS FROM THE COMPANY INTO THEIR RESPECTIVE PERSONAL ACCOUNTS BY AVAILING THE SERVICES OF HAWALA O PERATORS AND CERTAIN DUMMY CONCERNS FLOATED BY THEM BOTH IN INDIA AND ABROAD . 4 KISHORE KUMAR ARYA ITA NOS. 4665 - 4667/MUM/2013 3 .2 THAT PURSUANT TO SEARCH CONDUCTED U/S 132 OF THE ACT IN THE HANDS OF THE ASSESSEE WHO ALONGWITH HIS BROTHER SH. INDERJEET ARYA WERE THE KEY PLAYER S MANAGING THE AFFAIR S OF THE GROUP NOTICES U/S 153A OF THE ACT WERE ISSUED TO THE ASSESSEE THEREIN CALLING UPON HIM TO FILE HIS RETURNS OF INCOME FOR A.Y(S) 2003 - 04 TO 2008 - 09 . T HE ASSESSEE WHO HAD FILED HIS ORIGINAL RETURN OF INCOME U/S 139 OF THE ACT FOR A.Y. 2005 - 06 AS ON 06.07.2006 DECLARING TOTAL INCOME OF RS. 3 78 707/ - IN COMPLIANCE THERETO FILED HIS RETURN OF INCOME U/S 153A OF THE ACT FOR A.Y. 2005 - 06 DECLARING THE SAME INCOME OF RS. 3 78 707/ - (SUPRA) . THAT ON ACCOUNT OF NON - COOPERATIVE ATTITUDE ADOPTE D BY THE ASSESSEE DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS THE A.O BE ING LEFT WITH NO OTHER ALTERNATIVE THEREIN FRAMED THE ASSESSMENT U/SS. 144 R.W.S. 153A OF THE ACT . THAT DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS KEEPING IN VIEW THE COM PLEXITIES IN THE ACCOUNTS AND THE H IGH STAKES INVOLVED IN THE CASE THE ASSESSEE WAS DIRECTED TO GET HIS ACCOUNTS AUDITED U/S 142(2A) OF THE ACT FOR THE A.Y(S) 2003 - 04 TO 2 009 - 10 . THE ASSESSEE CONTINU ED WITH HIS CALLOUS AND NON COOPERATIVE ATTITUDE DURIN G THE COURSE OF THE SPECIAL AUDIT PURSUANT WHERETO THE SPECIAL AUDITORS AFTER METICULOUSLY ANALYZING THE MATERIAL TO THE EXTENT THE SAME COULD BE GATHERED BY THEM THEREIN SUBMITTED THE SPECIAL AUDIT REPORT AS ON 15.04.2011. 3 .3 THAT DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS THE A.O TAKING COGNIZANCE OF THE FACT THAT THE BALANCE SHEET OF THE ASSESSEE F OR THE YEAR ENDING 31.03.2005 REFLECT ED INTER ALIA THE FOLLOWING LOANS (LIABILITIES) : - 5 KISHORE KUMAR ARYA ITA NOS. 4665 - 4667/MUM/2013 SR. NO. PARTICULARS AMOUNT 1. BARCO PHARMA CEUTICALS PV T. LTD. RS. 6 25 00 000/ - 2. BLESSINGS BIO TECH P. LTD. RS. 6 25 00 000/ - TOTAL RS. 12 50 00 000/ - THEREUPON CONFRONTED THE ASSESSEE WITH THE FINDINGS AS HAD EMERGED IN THE COURSE OF THE INVESTIGATIONS FOLLOWING THE SEARCH PROCEEDINGS CONDUCTED IN THE HANDS OF THE AFORESAID GROUP WHICH REVEALED THAT BOTH OF THE AFORESAID LENDO R COMPAN IES I.E. M/S BARC O PHARMA CEUTICALS PVT. LTD. (SUPRA) AND M/S BLESSINGS BIO TECH P. LTD. (SUPRA) WERE DUMMY COMPANIES FLOATED BY THE ASSESSEE ALONGWITH HIS BROTHER THEREIN PROJECTING THE PETTY EMPLOYEES OF THE GROUP AS THE DIREC TORS OF THE AFORESAID COMPANIES WITH THE ULTERIOR MOTIVE TO FACILITATE SIPHON ING OFF THE FUNDS OF THE COMPANY BY ROUTING THE SAME THROUGH THE AFORESAID LENDOR COMPANIES. THAT DESPITE THE FA CT THE ASSESSEE WAS CATEGORICALLY CONFRONTED BY THE A.O WITH A FINDING THAT THE PURPORTED LOANS RECEIVED BY HIM FROM THE AFORESAID LENDOR COMPANIES I.E. M/S BARC O PHARMA CEUTICALS PVT. LTD. (SUPRA) AND M/S BLESSINGS BIO TECH P. LTD. (SUPRA) W ERE AS A MATT ER OF FACT FUNDS RECEIVED BY HIM FROM THE COMPANY I.E. M/S RAJAT PHARMACHEM LTD. (SUPRA) HOWEVER CHOSE NOT TO FILE ANY REPLY PURSUANT WHERETO THE A.O PROCEEDED WITH AND SUMMONED THE DIRECTORS OF THE AFORESAID LENDOR COMPANIES U/S 131 OF THE ACT AND RE CORDED THEIR RESPECTIVE STATEMENTS ON OATH : - 6 KISHORE KUMAR ARYA ITA NOS. 4665 - 4667/MUM/2013 SR. NO. PARTICULARS 1. SH. SATISH DIKSHIT R/O CHITRAKOOT SOCIETY SINGH ESTATE CROSS ROAD NO. 2 KANDIVALI(E) MUMBAI - 400 101: (A) DIRECTOR OF M/S BARCO PHARMACEUTICAL PVT. LTD. AND (B) DIRECTOR OF M/S BLESSINGS B IO - TECH P. LTD. 2. SH. RAKESH SHARMA R/O 603 VARUN BLDG VASANT LEELA COMPLEX WAGHBIL NAKA GODHBUNDAR ROAD THANE (W) - 400 601 : (A) DIRECTOR OF M/S BLESSINGS BIO - TECH P. LTD. THE A.O ON BEING SATISFIED THAT BOTH OF THE AFORESAID PERSONS WHO WERE PETTY EM PLOYEES OF THE COMPANY M/S RAJAT PHARMACHEM LTD. AND WERE NEITHER AWARE OF THE AFFAIRS OF THE AFOREMENTIONED COMPANIES AS WELL AS TOTALLY OBLIVIOUS OF THE MOVEMENT OF FUNDS INTO AND OUT OF THE COFFERS OF THE SAID COMPANIES WERE AS A MATTER OF FACT DUMMI ES WHO HAD BEEN PLANTED BY THE ASSESSEE AND HIS BROTHER SH. INDERJEET ARYA TO ACT AS SUBTERFUGES FOR FACILITATING CLANDESTINE DIVERSION OF FUNDS OF THE COMPANY FOR THE PERSONA L BENEFIT OF THE ASSESSEE AND HIS BROTHER SH. INDERJEET ARYA THUS CONCLUDED THAT AS THE AMOUNT AGGREGATING TO RS. 12.50 CRORE EACH WAS IN FACT DRAWN BY THE ASSESSEE AND HIS BROTHER SH. INDERJEET ARYA DIRECTLY FROM THE FUNDS OF THE COMPANY I.E. M/S RAJAT PHARMACHEM LTD. THEREFORE PROCEEDED WITH AND ADDED THE ENTIRE AMOUNT OF RS. 12.5 0 CRORE AS INCOME IN THE HANDS OF THE ASSESSEE ON THE FOLLOWING GROUNDS : I. THAT AS THE AMOUNT OF RS. 12.50 CRORE SIPHONED OFF BY THE ASSESSEE FROM THE FUNDS OF THE COMPANY M/S RAJAT PHARAMACHEM LTD. LEADING TO CREDIT OF THE SAID AMOUNT IN THE CAPITAL A/C ASSESSEE THE SAME WAS HELD BY THE A.O AS TAXABLE BEING IN THE NATURE OF R EVENUE RECEIPT IN THE FORM OF SALARY IN THE HANDS OF THE ASSESSEE. 7 KISHORE KUMAR ARYA ITA NOS. 4665 - 4667/MUM/2013 II. THAT ALTERNATIVELY THE A.O OBSERVING THAT AS THE ASSESSEE WAS HOLDING 52.5% BENEFICIAL OWNERSHIP OF SHARES IN TH E COMPANY I.E. M/S RAJAT PHARAMACHEM LTD. WHICH WAS A CLOSELY HELD COMPANY THEREFORE THE ADVANCES TAKEN BY THE ASSESSEE THROUGH THE DUMMY COMPANIES WAS AS A MATTER OF FACT FUNDS RECEIVED BY HIM DIRECTLY FROM THE AFORESAID COMPANY I.E M/S RAJAT PHARAMACH EM LTD. AND THE SAME THEREFORE TOOK THE COLOR AND CHARACTER AS THAT OF DEEMED DIVIDEND U/S 2(22)(E) OF THE ACT. HOWEVER THE A.O TAKING COGNIZANCE OF THE FACT THAT THE ACCUMULATED PROFIT S AVAILABLE WITH THE COMPANY AMOUNTED TO RS. 9 96 43 053/ - AND BO TH THE ASSESSEE AND HIS BROTHER SH. INDERJEET ARYA HAD DRAWN AN AMOUNT OF RS. 12.50 CRORE EACH FROM THE AFORESAID COMPANY HE THEREFORE RESTRICTED THE ADDITION TO THE TOTAL INCOME OF THE ASSESSEE AT RS. 4 98 21 526/ - BEING HALF THE AMOUNT OF THE RESERVES AVAILABLE IN THE B ALANCE SHEET OF THE COMPANY. THUS IN LIGHT OF THE AFORESAID OBSERVATIONS THE A.O MADE AN ADDITION OF RS. 12.50 CRORE (I.E. THE HIGHER OF THE AFORESAID TWO ADDITIONS) IN THE HANDS OF THE ASSESSEE AND THEREAFTER DELIBERATING ON CERTAIN O THER ISSUES ASSESSED THE INCOME AT RS. 15 31 04 635/ - . 4 . THAT THE ASSESSEE BEING AGGRIEVED WITH THE ASSESSMENT THEREIN CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A) WHO PARTLY ALLOWED THE APPEAL. THAT THOUG H THE CIT(A) SUSTAINED THE ADDITION OF RS. 4 9 8 21 526/ - MADE BY THE A.O U/S 2(22)(E) OF THE ACT BUT HE BEING OF THE VIEW THAT AS THE AMOUNT OF RS. 12.50 CRORE HAD BEEN RECEIVED BY THE ASSESSEE FROM THE COMPANY I.E. M/S RAJAT PHARAMACHEM LTD. THEREFORE IN LIGHT OF THE DULY ID ENTIF IED SOURCE OF TH E SAID FUNDS THE SAME COULD NOT BE ASSESSED 8 KISHORE KUMAR ARYA ITA NOS. 4665 - 4667/MUM/2013 AS AN UNEXPLAINED CREDIT IN THE HANDS OF THE ASSESSEE U/S 68 OF THE ACT. THUS IN LIGHT OF THE AFORESAID OBSERVATIONS THE CIT(A) RESTRICTED THE ADDITION IN THE HANDS OF THE ASSESSEE TO AN AMOUNT OF RS. 4 98 21 526/ - BY NOT FINDING HIMSELF AS BEING IN AGREEMENT WITH THE BASIS ON WHICH THE ADDITION OF RS. 12.50 CRORE HAD BEEN MADE BY THE A.O AND THUS VACATED THE SAME. 5 . THAT THE DEPARTMENT BEING AGGRIEVED WITH THE ORDER OF THE CIT(A) THEREIN SETTING ASIDE T HE BASIS ON WHICH AN ADDITION OF RS. 12.50 CRORE WAS MADE BY THE A.O HAD THEREIN ASSAILED THE ORDER OF THE CIT(A) TO THE SAID EXTENT BEFORE US. THAT AT THE VERY OUTSET THE LD. DEPARTMENT REPRESENTATIVE (FOR SHORT D . R) SUBMITTED THAT THE FINDING OF THE C IT(A) THAT AS THE AMOUNT OF RS. 12.50 CRORE HAD BEEN RECEIVED BY THE ASSESSEE FROM THE COMPANY I.E. M/S RAJAT PHARAMACHEM LTD. THEREFORE IN LIGHT OF THE DULY IDENTIFIED SOURCE OF THE SAID FUNDS THE SAID AMOUNT COULD NOT BE ASSESSED AS AN UNEXPLAINED CRE DIT U/S 68 OF THE ACT HAD HOWEVER FAILED TO APPRECIATE THAT THE ASSESSEE HAD NOT PUT FORTH ANY EXPLANATION AS REGARDS THE N ATURE OF THE AMOUNT OF RS. 12.50 CRORE SO RECEIVED BY HIM . THE LD. DR HEAVILY RELYING ON THE ORDER OF THE A.O THEREIN SUBMITTED THAT IN THE ABSENCE OF ANY EXPLANATION FORTHCOMING ON THE PART OF THE ASSESSEE AS REGARDS THE NATURE OF THE RECEIPT OF THE AFORESAID AMOUNT OF RS. 12.50 CRORE IN THE HANDS OF THE ASSESSEE THE A.O THUS BEING LEFT WITH NO OTHER ALTERNATIVE HAD RIGHTLY M ADE AN ADDITION OF THE SAID AMOUNT IN THE HANDS OF THE ASSESSEE. IT WAS AVERRED BY THE LD. D.R THAT THE ORDER OF THE CIT(A) VACATING THE BASIS ON WHICH THE ADDITION OF RS. 12.50 CRORE HAD BEEN MADE BY THE A.O CANNOT BE SUSTAINED IN THE EYES OF LAW AND THE SAME MAY BE SET ASIDE AND THE ADDITION MADE BY THE A.O BE RESTORED. 9 KISHORE KUMAR ARYA ITA NOS. 4665 - 4667/MUM/2013 6 . WE FIND THAT DESPITE AFFORDING SUFFICIENT OPPORTUNITY TO THE ASSESSEE RESPONDENT WHO HAD DULY BEEN PUT TO NOTICE VIDE REGISTERED POST (RPAD) AS REGARDS THE HEARING OF THE APPEAL THE LATTER DESPITE HAVING BEEN ALLOWED ADJOURNMENTS AT HIS REQUEST HAD CHOSEN TO CONTINUE WITH HIS CALLOUS AND NON - COOPERATIVE CONDUCT AND HAD FAILED TO PUT UP AN APPEARANCE ON THE DATE FIXED FOR HEARING OF THE APPEAL BEFORE US PURSUANT W HERETO WE ARE CONST RAIN ED TO DISPOSE OF THE APPEAL IN TERMS OF RULE 25 OF THE APPELLATE TRIBUNAL RULES 1963 AFTER PERUSI NG THE ORDERS OF THE LOWER AUTHORITIES MATERIAL AVAILABLE ON RECORD AND TAKING NOTE OF THE SUBMISSIONS MADE BY THE LD. D . R BEFORE US. WE HAVE GIVEN THOU GHTFUL CONSIDERATION TO THE FACTS OF THE CASE AND FIND SUBSTANTIAL FORCE IN THE SUBMISSIONS OF THE LD. D . R. THAT A BARE PERUSAL OF SEC. 68 OF THE ACT WHICH READS AS UNDER : - CASH CREDITS. 68. WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF AN ASSES SEE MAINTAINED FOR ANY PREVIOUS YEAR AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE THEREOF OR THE EXPLANATION OFFERED BY HIM IS NOT IN THE OPINION OF THE ASSESS ING OFFICER SATISFACTORY THE SUM SO CREDITED MAY BE CHARGED TO INCOME T AX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR. THEREIN REVEALS THAT AS PER THE STATUTORY REQUIREMENT S CONTEMPLATED U/S 68 OF THE ACT A STATUTORY OBLIGATION IS CAST UPON AN ASSESSEE TO PUT FORTH A SATISFACTORY EXPLANATION BOTH AS REGARDS T HE NATURE AND SOURCE OF ANY SUM WHICH IS FOUND CREDITED IN HIS BOOKS OF ACCOUNTS AND IN ABSENCE OF A CUMULATIVE SATISFACTION OF BOTH OF THE SAID STATUTORY REQUIREMENTS THE 10 KISHORE KUMAR ARYA ITA NOS. 4665 - 4667/MUM/2013 SA ID SUM IS LIABLE TO BE CHARGED TO INCOME - TAX AS THE INCOME OF THE ASSESEE U/ S 68 OF THE CT. THAT CONSTRUING THE SCOPE AND GAMUT OF SEC. 68 BY ADHERING TO THE RULE OF STRICT LITERAL INTERPRETATION W E ARE OF THE CONSIDERED VIEW THAT MERE PUTTING FORTH OF AN EXPLANATION BY THE ASSESSEE AS REGARDS THE SOURCE OF THE AMOUNT FOUND CREDITED IN HIS BOOKS OF ACCOUNTS WITH NO SATISFACTORY EXPLANATION AS REGARDS THE NATURE OF THE SAID RECEIPT /CREDIT WOULD BE SUFFICIENT TO INESCAPABLY JUSTIFY ADDITION OF THE SAID AMOUNT AS AN UNEXPLAINED CREDIT IN THE HANDS OF THE ASSESSEE U/S 68 OF THE ACT . WE FIND THAT IN THE PRESENT CASE THOUGH THE IMMEDIATE SOURCE OF THE AMOUNT OF RS. 12.50 CRORE RECEIVED BY THE ASSESSEE STANDS ESTABLISHED BEING THE AMOUNTS RECEIVED FROM THE FUNDS OF THE COMPANY I.E. M/S RAJAT PHARMACHEM LTD. HOWEVER THE SAME IN THE ABSENCE OF ANY EXPLANATION BY THE ASSESSEE AS TO WHAT WAS THE NATURE OF THE SAID RECEIPT COULD THUS SAFELY BE CONCLUDED AS A FAILURE ON THE PART OF T HE ASSESSEE TO DISCHARGE THE ONUS CAS T UPON HIM AS PER THE CLEARLY WORDED SEC. 68 OF THE ACT PURSUANT WHERETO THE SAID AMOUNT WAS RIGHTLY ASSESSED BY THE A.O AS A REVENUE RECEIPT IN THE HANDS OF THE ASSESSEE. WE ARE UNABLE TO PERSUADE OURSELVES TO BE IN AGREEMENT WITH THE FINDING OF THE CIT(A) WHO BY DELETING THE BASIS OF ADDITION OF RS. 12.50 CRORE CAN THUS SAFELY BE HELD TO HAVE WHIMSICALLY DISPENSED WITH THE STATUTORY OBLIGATION CAST UPON AN ASSESSEE FOR EFFECTING CUMULATIVE SATISFACTION OF THE TWO FOLD STATUTORY REQUIREMENTS CONTEMPLATED U/S 68 OF THE ACT I.E EXPLANATION AS REGARDS BOTH THE NATURE AND SOURCE OF THE AMOUNT FOUND CREDITED IN HIS BOOKS OF ACCOUNT AND DESPITE THE FACT THAT THE ASSESSEE HAD FAILED TO PUT FORTH ANY EXPLANATION MUCH THE LESS A SATISFACTORY EXPLANATION AS REGARDS THE NATURE OF THE RECEIPT IN HIS HANDS HA D THUS GRAVELY ERRED IN LAW BY CONCLUDING THAT NO ADDITION WAS LIABLE TO BE MADE U/S 68 OF THE ACT. WE ARE OF THE CONSIDERED VIEW THAT THE 11 KISHORE KUMAR ARYA ITA NOS. 4665 - 4667/MUM/2013 FINDING OF THE CIT(A) ARRIVED AT ON THE BASIS OF MISCONCEIVED INTERPRETATION OF THE SCOPE AND GAMUT OF SEC. 68 THU S SUFFERS FROM A SERIOUS LEGAL INFIRMITY AND AS SUCH CANNOT BE SUSTAINED. WE IN LIGHT OF OUR AFORESAID OBSERVATIONS THUS SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE ADDITION OF RS. 12.50 CRORE MADE BY THE A.O. THE GROUNDS OF APPEAL NO. 1 & 2 ARE THUS ALLOWED. 7 . WE NOW ADVERT TO THE APPEAL FILED BY THE DEPARTMENT MARKED AS ITA NO. 4666/MUM/2013 PERTAINING TO A.Y. 2008 - 09 DIRECTED AGAINST THE ORDER OF THE CIT(A) - 38 MUMBAI WHICH IN TURN HAVE ARISEN OUT OF ORDER PASSED BY THE ASSESSING OFFICER (IN SH ORT A.O) UNDER SECTION 144 R.W.S. 153A OF THE INCOME TAX ACT 1961 (IN SHORT THE ACT) . THE GROUNDS OF APPEAL FOR ASSESSMENT YEAR 2008 - 09 READ AS UNDER: - (B). A.Y. 2008 - 09 : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) E RRED IN DELETING ADDITION OF RS. 1 76 74 450 / - MADE U/S 68 OF THE ACT BY HOLDING THAT THE IMMEDIATE SOURCE OF FUNDS IS IDENTIFIE D AS M/S RAJAT PHARMACHEM LTD WITHOUT APPRECIATING THAT THE ADVANCES WERE NOT RECEIVED DIRECTLY FROM M/S RAJAT PHARMACHEM LTD BUT WERE ROUTED THROUGH DUMMY COMPANIES. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD CIT(A) ERRED IN DELETING ADDITION OF RS. 1 76 74 450 / - MADE U/S 68 OF THE ACT WITHOUT APPRECIATING THAT THE NATURE AND PURPOSE OF ADVANCES HAS NOT BE EN EXPLAINED. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUND BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 12 KISHORE KUMAR ARYA ITA NOS. 4665 - 4667/MUM/2013 THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND AND/OR ADD NEW GROUNDS WHICH MAY BE NECESSARY . 8 . T HE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION IN THE BACKGROUND OF THE IDENTICAL FACTS AS WERE INVOLVED IN HIS CA SE FOR A.Y. 2005 - 06 HAD RECEIVED AN AMOUNT AGGREGATING TO RS. 1 76 74 450/ - FROM M/S RAJAT PHARMACHEM L TD IN THE GARB OF A SMOKE SCREEN CREATED TO CLAIM THAT AS IF THE SAME WERE RECEIVED BY HIM FROM THE AFORESAID DUMMY COMPANIES. THE A.O OBSERVING THAT THE AFORESAID AMOUNT REPRESENTED THE FUNDS SIPHONED OFF BY THE ASSESSEE FROM THE COMPANY I.E. M/S RAJAT PHARMACHEM LTD. WHILE FOR THE AFORESAID DUMMY LENDOR COMPANY I.E. M/S BLESSINGS BIO TECH P. LTD. HAD MERELY ACTED AS A FACILITATOR OF THE SAID MANIPULATIONS THEREFORE FINDING THAT THE FACT INVOLVED DURING THE YEAR UNDER CONSIDERATION WERE IDENTICAL WITH THOSE PERTAINING TO THE CASE OF THE ASSESSEE FOR A.Y. 2005 - 06 THEREIN MADE AN ADDITION OF THE ENTIRE AMOUNT OF RS. 1 76 74 450/ - (SUPRA) IN THE HANDS OF THE ASSESSEE FOR THE FOLLOWING REASONS : I. THAT AS THE AMOUNT OF RS. 1 76 74 450/ - (SUPRA) SIPHONED OFF BY THE ASSESSEE FROM THE FUNDS OF THE COMPANY M/S RAJAT PHARAMACHEM LTD. LEADING TO CREDIT OF THE FUNDS IN THE CAPITAL A/C OF THE ASSESSEE THE SAME WAS HELD BY THE A.O AS TAXABLE BEING IN THE NATURE OF REVENUE RECEIPT IN THE FORM OF SALARY IN THE HAN DS OF THE ASSESSEE. II. THAT ALTERNATIVELY THE A.O OBSERVING THAT THE ASSESSEE WAS HOLDING 52.5% BENEFICIAL OWNERSHIP OF SHARES IN THE COMPANY I.E. M/S RAJAT PHARAMACHEM LTD. WHICH WAS A CLOSELY HELD COMPANY THEREFORE THE ADVANCES TAKEN BY THE ASSESSEE THR OUGH THE DUMMY COMPAN IES WAS AS A MATTER OF FACT FUNDS RECEIVED BY HIM DIRECTLY FROM THE AFORESAID 13 KISHORE KUMAR ARYA ITA NOS. 4665 - 4667/MUM/2013 COMPANY I.E. M/S RAJAT PHARAMACHEM LTD. WHICH THUS TOOK THE COLOR AND CHARACTER AS THAT OF DEEMED DIVIDEND U/S 2(22)(E) OF T HE ACT THEREIN MADE AN ADD ITION OF RS. 1 76 74 450/ - (SUPRA) ON THE SAID COUNT TOO IN THE HANDS OF THE ASSESSEE. THUS IN LIGHT OF THE AFORESAID OBSERVATIONS THE A.O MADE AN ADDITION OF RS. 1 76 74 450/ - (SUPRA) IN THE HANDS OF THE ASSESSEE AND THEREAFTER DELIBERATING ON CERTAIN O THER ISSUES ASSESSED THE INCOME OF THE ASSESSEE AT RS. 5 29 41 170/ - 9 . THAT THE ASSESSEE BEING AGGRIEVED WITH THE ASSESSMENT THEREIN CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A) WHO ON THE BASIS OF THE SAME REASONING ADOPTED BY HIM WHILE DISPOSING OF THE APPEAL OF THE ASSESSEE FOR A.Y. 2005 - 06 THEREIN PARTLY ALLOWED THE APPEAL. THAT THOUGH THE CIT(A) SUSTAINED THE ADDITION OF RS. 1 76 74 450/ - MADE BY THE A.O U/S 2(22)(E) OF THE ACT BUT HE BEING OF THE VIEW THAT AS THE SAID AMOUNT HAD BEEN RECEIV ED BY THE ASSESSEE FROM THE COMPANY I.E. M/S RAJAT PHARAMACHEM LTD. THEREFORE IN LIGHT OF THE DULY IDENTIFIED SOURCE OF THE SAID FUNDS THE SAME COULD NOT BE ASSESSED AS AN UNEXPLAINED CREDIT IN THE HANDS OF THE ASSESSEE U/S 68 OF THE ACT. THUS IN LIGH T OF THE AFORESAID OBSERVATIONS THOUGH THE CIT(A) UPHELD THE ADDITION OF RS. 1 76 74 450/ - MADE IN THE HANDS OF THE ASSESSEE U/S 2(22)(E) OF THE ACT HE HOWEVER NOT FINDING HIMSELF TO BE IN AGREEMENT WITH THE BASIS ON WHICH THE SAID ADDITION HAD ALSO BE EN MADE BY THE A.O BY TREATING THE SAME AS AN UNEXPLAINED CREDIT THUS BEING OF THE CONVICTION THAT THE PROVISIONS OF SEC. 68 OF THE ACT IN LIGHT OF THE DULY IDENTIFIE D SOURCE WOULD NOT BE ATTRACTED THEREFORE VACATED THE BASIS ON WHICH THE ADDITION OF T HE SAID AMOUNT HAD ALSO BEEN MADE BY THE A.O . 14 KISHORE KUMAR ARYA ITA NOS. 4665 - 4667/MUM/2013 10 . THAT THE DEPARTMENT BEING AGGRIEVED WITH THE ORDER OF THE CIT(A) SETTING ASIDE THE BASIS ON WHICH AN ADDITION OF RS. 1 76 74 450/ - (SUPRA) WAS MADE BY THE A.O HAD THEREIN ASSAILED THE ORDER OF THE CIT( A) TO THE SAID EXTENT BEFORE US. THAT AS THE FACTS INVOLVED IN THE YEAR UNDER CONSIDERATION WERE SIMILAR TO THOSE INVOLVED IN THE APPEAL OF THE REVENUE BEFORE US FOR A.Y. 2005 - 06 THEREFORE THE LD. D.R RELIED ON HIS SUBMISSIONS SO MADE BY HIM BEFORE US FOR THE SAID YEAR. 1 1 . WE FIND THAT AS THE FACTUAL BACKGROUND AND THE ISSUE INVOLVED IN THE PRESENT APPEAL OF THE DEPARTMENT ARE IDENTICAL TO THOSE INVOLVED IN THE APPEAL OF THE DEPARTMENT FOR A.Y. 2005 - 06 THEREFORE ON THE BASIS OF THE REASONING ADOPTED BY US WHILE ADJUDICATING THE APPEAL OF THE ASSESSEE FOR A.Y. 2005 - 06 MARKED AS ITA NO. 4665/MUM/2013 HEREINABOVE WE THUS IN LIGHT OF OUR AFORESAID OBSERVATIONS SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE ADDITION OF RS. 1 76 74 450/ - MADE BY THE A.O. ALSO ON THE COUNT THAT THE SAID AMOUNT REPRESENTED A REVENUE RECEIPT IN THE HANDS OF THE ASSESSEE. THE GROUNDS OF APPEAL NO. 1 & 2 ARE THUS ALLOWED. 1 2 . WE NOW TAKE UP THE APPEAL FILED BY THE D EPARTMENT MARKED AS ITA NO. 4667/ MUM/2013 PERTAINING TO A.Y. 200 9 - 10 DIRECTED AGAINST THE ORDER OF THE CIT(A) - 38 MUMBAI WHICH IN TURN HAVE ARISEN OUT OF ORDER PASSED BY THE ASSESSING OFFICER (IN SHORT A.O) UNDER SECTION 144 R.W.S. 153A OF THE INCOME TAX ACT 1961 (IN SHORT THE ACT) . THE GROUNDS OF APPEAL FOR ASSESSMENT YEAR 200 9 - 10 READ AS UNDER: - (C). A.Y. 2009 - 10 : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN DELETING ADDITION OF RS. 13 42 700/ - MADE U/S 68 OF THE ACT 15 KISHORE KUMAR ARYA ITA NOS. 4665 - 4667/MUM/2013 BY HOLDING THAT THE IMMEDIATE SOURCE OF FUNDS IS IDENTIFIES AS M/S RAJAT PHARMACHEM LTD WITHOUT APPRECIATING THAT THE ADVANCES WERE NOT RECEIVED DIRECTLY FROM M/S RAJAT PHARMACHEM LTD BUT WERE ROUTED THROUGH DUMMY COMPANIES. 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD CIT(A) ERRE D IN DELETING ADDITION OF RS. 13 42 700/ - MADE U/S 68 OF THE ACT WITHOUT APPRECIATING THAT THE NATURE AND PURPOSE OF ADVANCES HAS NOT BEEN EXPLAINED. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUND BE SET ASIDE AND THAT OF THE ASSE SSING OFFICER BE RESTORED. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND AND/OR ADD NEW GROUNDS WHICH MAY BE NECESSARY. 1 3 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION IN THE BACKGROUND OF THE IDENTIC AL FACTS AS WERE INVOLVED IN HIS CASE FOR A.Y (S) 200 5 - 06 AND 2008 - 09 HAD RECEIVED AN AMOUNT AGGREGATING TO RS. 13 42 700 / - AS UNDER : - SR. NO. PARTICULARS AMOUNT 1. BLESSINGS BIO TECH P. LTD. RS. 13 42 700 / - THE A.O OBSERVING THAT THE AFORESAID AM OUNT REPRESENTED THE FUNDS SIPHONED OFF BY THE ASSESSEE FROM THE COMPANY I.E. M/S RAJAT PHARMACHEM LTD. WHILE FOR THE AFORESAID DUMMY LENDOR COMPANY I.E. M/S BLESSINGS BIO TECH P. LTD. HAD MERELY ACTED AS A FACILITATOR OF THE SAID MANIPULATIONS THEREFO RE FINDING THAT THE FACT S INVOLVED DURING THE YEAR UNDER CONSIDERATION WERE IDENTICAL WITH THOSE PERTAINING TO THE CASE OF THE ASSESSEE FOR A.Y (S) . 2005 - 06 AND 2008 - 09 THEREIN MADE AN ADDITION OF 16 KISHORE KUMAR ARYA ITA NOS. 4665 - 4667/MUM/2013 THE ENTIRE AMOUNT OF RS. 13 42 700/ - (SUPRA) IN THE HANDS O F THE ASSESSEE FOR THE FOLLOWING REASONS : I. THAT AS THE AMOUNT OF RS. 13 42 700/ - (SUPRA) SIPHONED OFF BY THE ASSESSEE FROM THE FUNDS OF THE COMPANY M/S RAJAT PHARAMACHEM LTD. LEADING TO CREDIT OF FUNDS IN THE CAPITAL A/C OF THE ASSESSEE THE SAME WAS H ELD BY THE A.O AS TAXABLE BEING IN THE NATURE OF REVENUE RECEIPT IN THE FORM OF SALARY IN THE HANDS OF THE ASSESSEE. II. THAT ALTERNATIVELY THE A.O OBSERVING THAT THE ASSESSEE WAS HOLDING 52.5% BENEFICIAL OWNERSHIP OF SHARES IN THE COMPANY I.E. M/S RAJAT PHA RAMACHEM LTD. WHICH WAS A CLOSELY HELD COMPANY THEREFORE THE ADVANCES TAKEN BY THE ASSESSEE THROUGH THE DUMMY COMPANY WERE AS A MATTER OF FACT FUNDS RECEIVED BY HIM DIRECTLY FROM THE AFORESAID COMPANY I.E. M/S RAJAT PHARAMACHEM LTD. WHICH THUS TOOK THE COLOR AND CHARACTER AS THAT OF DEEMED DIVIDEND U/S 2(22)(E) OF THE ACT AND THUS MADE AN ADDITION OF RS. 13 42 700/ - (SUPRA) ON THE SAID COUNT TOO IN THE HANDS OF THE ASSESSEE. THUS IN LIGHT OF THE AFORESAID OBSERVATIONS THE A.O MADE AN ADDITION OF RS. 13 42 700/ - (SUPRA) IN THE HANDS OF THE ASSESSEE AND THEREAFTER DELIBERATING ON CERTAIN OTHER ISSUES ASSESSED THE INCOME OF RS. 2 37 95 290/ - . 1 4 . THAT THE ASSESSEE BEING AGGRIEVED WITH THE ASSESSMENT THEREIN CARRIED THE MATTER IN APPEAL BEFORE THE CIT( A) WHO ON THE BASIS OF THE SAME REASONING ADOPTED BY HIM WHILE DISPOSING OF THE APPEAL OF THE ASSESSEE FOR A.Y. 2005 - 06 THEREIN PARTLY ALLOWED THE APPEAL. THAT THOUGH THE CIT(A) SUSTAINED THE ADDITION OF RS. 13 42 700/ - MADE BY THE A.O U/S 17 KISHORE KUMAR ARYA ITA NOS. 4665 - 4667/MUM/2013 2(22)(E) OF T HE ACT BUT HE BEING OF THE VIEW THAT AS THE SAID AMOUNT HAD BEEN RECEIVED BY THE ASSESSEE FROM THE COMPANY I.E. M/S RAJAT PHARAMACHEM LTD. THEREFORE IN LIGHT OF THE DULY IDENTIFIED SOURCE OF THE SAID FUNDS THE SAME COULD NOT BE ASSESSED AS AN UNEXPL AINED CREDIT IN THE HANDS OF THE ASSESSEE U/S 68 OF THE ACT. THUS IN LIGHT OF THE AFORESAID OBSERVATIONS THOUGH THE CIT(A) UPHELD THE ADDITION OF RS. 13 42 700/ - MADE IN THE HANDS OF THE ASSESSEE U/S 2(22)(E) OF THE ACT HE HOWEVER NOT FINDING HIMSELF AS BEING IN AGREEMENT WITH THE BASIS ON WHICH THE SAID ADDITION HAD ALSO BEEN MADE BY THE A.O BY TREATING THE SAME AS AN UNEXPLAINED CREDIT BEING OF THE CONVICTION THAT THE PROVISIONS OF SEC. 68 OF THE ACT IN LIGHT OF THE DULY IDENTIFIED SOURCE WOULD NO T BE ATTRACTED THEREFORE VACATED THE BASIS ON WHICH THE ADDITION OF THE SAID AMOUNT HAD ALSO BEEN MADE BY THE A.O. 1 5 . THAT THE DEPARTMENT BEING AGGRIEVED WITH THE ORDER OF THE CIT(A) THEREIN SETTING ASIDE THE BASIS ON WHICH AN ADDITION OF RS. 13 42 7 00/ - (SUPRA) WAS MADE BY THE A.O HAD THEREIN ASSAILED THE ORDER OF THE CIT(A) TO THE SAID EXTENT BEFORE US. THAT AS THE FACTS INVOLVED IN THE YEAR UNDER CONSIDERATION WERE SIMILAR TO THOSE INVOLVED IN THE APPEAL OF THE REVENUE BEFORE US FOR A.Y (S) . 2005 - 0 6 THEREFORE THE LD. D.R RELIED ON HIS SUBMISSIONS SO MADE BY HIM BEFORE US FOR THE SAID YEAR. 1 6 . WE FIND THAT AS THE FACTUAL BACKGROUND AND THE ISSUE INVOLVED IN THE PRESENT APPEAL OF THE DEPARTMENT IS IDENTICAL TO THOSE INVOLVED IN THE APPEAL OF THE D EPARTMENT FOR A.Y. 2005 - 06 THEREFORE ON THE BASIS OF THE REASONING ADOPTED BY US WHILE ADJUDICATING THE APPEAL OF THE ASSESSEE FOR A.Y. 2005 - 06 MARKED AS ITA NO. 4665/MUM/2013 WHICH IN LIGHT OF THE PARITY OF FACTS INVOLVED THEREIN HAD THUS ALSO BEEN AD OPTED BY US WHILE 18 KISHORE KUMAR ARYA ITA NOS. 4665 - 4667/MUM/2013 ADJUDICATING THE APPEAL OF THE DEPARTMENT FOR A.Y. 2008 - 09 WE THUS ADOPTING THE VERY SAME REASONING IN THE PRESENT APPEAL OF THE DEPARTMENT BEFORE US WHEREIN TOO THE ISSUE AND THE FACTS INVOLVED ARE FOUND TO BE IDENTICAL THUS SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE ADDITION OF RS. 13 42 700/ - MADE BY THE A.O. ALSO ON THE COUNT THAT THE SAID AMOUNT REPRESENTED A REVENUE RECEIPT IN THE HANDS OF THE ASSESSEE. THE GROUNDS OF APPEAL NO. 1 & 2 ARE THUS ALLOWED. 1 7 . IN THE RESULT AL L THE AFORESAID THREE APPEALS OF THE DEPARTMENT MARKED A S ITA NO (S) . 466 5 - 4667 /MUM/2013 ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 / 10 /2016. SD/ - SD/ - ( G.S. PANNU ) ( RAVISH SOOD ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 26 / 10 /2016 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 38 MUMBAI 4. CIT 5. DR ITAT MUMBA I 6. GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT MUMBAI