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TMI Blog2017 (11) TMI 507X X X X Extracts X X X X X X X X Extracts X X X X ..... 017 - SHRI P.K. BANSAL, VICE-PRESIDENT AND SHRI PAWAN SINGH, JUDICIAL MEMBER For The Assessee : Sh. Ajay R. Singh (AR) For The Revenue : Sh. Rajat Mittal (DR) Order Under Section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by assessee under section 253 of the Income-tax Act (the Act) is directed against the order of ld. Commissioner of Income Tax (Appeals)-9 [CIT(A)], Mumbai dated 21.09.2015 for the Assessment Year (AY) 2008- 09. The assessee has raised the following grounds of appeal. 1. Reopening of Assessment is bad in law : l. The Learned CIT(A) erred in upholding the reopening of assessment made u/s.147 of the Act without considering facts that it is based on the conjectures, surmises and assumptions and not on any tangible material, even if some information was received the AO failed to apply his independent mind to such material before reopening the completed assessment u/s. 143(3) dt 30/11/2010. 2. The learned CIT(A) failed to appreciate the fact, the A.O. had not furnished the copy of recorded reasons on the basis which case was reopened. Therefore, A.O. has failed to follow the due process of law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the normal provision and ₹ 3,14,79,620/- under the provisions of section 115JB of the Act. Subsequently, the assessment was re-opened under section 147 of the Act vide notice dated 26.03.2013. The assessee in response to the notice of reopening contended that the original return of income may be treated as return of income in response to the notice. The assessment was re-opened on the ground that Director General of Income-tax (Investigation) as conducted search operation in case of Mahasagar Securities Pvt. Ltd. and its group cases on 25.11.2009. Mahasagar Securities Pvt. Ltd. was managed by Mukesh Choksi group. In the search operation, it was revealed that this group was involved in giving accommodation entries for Short Term Capital Gain and Long Term Capital Gain and speculation profit or loss. It was also revealed that the assessee has also availed accommodation entries from Mukesh Choksi group. The assessment was completed under section 143(3) original section 147 on 24.03.2014. The Assessing Officer while framing the assessment order made the addition of ₹ 1,13,76,636/- in the income of assessee as undisclosed income and addition of ₹ 5,68,382/- on accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er failed to provide the statement of Mukesh Choksi on the basis of the assessment was reopened and the entire addition is based. No opportunity of crossexamination was given despite specific requisite to the assessee, no copy of the Ledger relied by Assessing Officer was provided to the assessee. The Assessing Officer failed to consider the submission, explanation and various documents furnished by the assessee. The ld. CIT(A) confirmed the action of Assessing Officer without appreciating the contention of the assessee. In support of his submission, the ld. AR of the assessee relied upon the decision of Hon ble Supreme Court in case of ITO vs. M. Pirai Choodi (2011) 334 ITR 262 (SC). The assessee further relied upon the various decisions, copy of which is filed in the form of Paper Book. Sr. No. Particulars Pg. No. 1. SLP rejected dt 27/1/2014 against Hon'ble Bombay High Court Judgement CIT vs. Mukesh R. Marolia ITA No. 456 of 2007, dated 7 th Sept. 2011. 1-5 2. Mukesh R Marolia vis. ACIT (2006) 6 SOT 247(Mum) 6- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s unearthed that Mukesh Choksi group was involved in providing accommodation entries. The Tribunal in a number of cases has assessed the income of Mukesh Choksi as a commission agent for providing accommodation entries. It was further argued that though the assessee was given full opportunities by the lower authorities before passing the assessment order and order on appeal by ld. CIT(A). The ld. DR for the Revenue filed a copy of decision of Tribunal in Shri Jayesh K. Samat vs. DCIT in ITA No. 1000 to 1003/Mum/2013 and ITA No. 924 928/Mum/2015 showing that the Tribunal has assessed the income of Shri Jayesh K. Samat and Mukesh Choksi as an accommodation entries provider. 6. We have considered the rival submission of the parties and have gone through the orders of authorities below in re-assessment proceeding observed that in the search operation in case of Mahasagar Securities Pvt. Ltd., it was revealed that the assessee has availed accommodation entries from Mukesh Choksi group. The assessee was asked to produce the detailed of Commodity derivatives, party wise details of loss, Security Transaction Tax certificate, master summary of transaction and details of any other trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est (P) Ltd. 8. In our view, the Assessing Officer has passed the assessment order without giving any finding on the submission and documentary evidences furnished by assessee. The Assessing Officer has relied upon the statement of Mukesh Choksi. No opportunity of cross-examination was provided to the assessee nor was the copy of statement given to assessee on which the Assessing Officer relied. Considering the decision of Hon ble Apex Court in case of ITO vs. M. Pirai Choodi (supra), we deem it appropriate to restore the ground no. 5,6 7 to the file of Assessing Officer to decide the same afresh in accordance with law. Needless to say the assessing officer shall grant sufficient opportunity of hearing to the assessee before passing the order afresh. The Assessing Officer is also directed to consider the documentary evidences furnished by the assessee and further to provide all the material which may be used against the assessee. Hence, the Ground No. 5 to 7 of the appeal is allowed for statistical purpose. 9. Ground No. 8 relates to interest under section 234A, 234B and 234C , which is consequential in nature and needs no adjudication. 10. In the result, appeal filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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