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TMI Blog2021 (8) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... he relevant time when Shri Dhiren Shah was the Director of the Company and not Jignesh Shah. Apart from the fact that no such contention was raised by the petitioner in the objections filed by it on reopening of the assessment, nor in the memo of petition, and has been raised for the first time in the affidavitin- rejoinder, such contention could not be taken into consideration at this juncture, it is also pertinent to note that the petitioner was issued a notice under section 133(6) of the said Act on 21.03.2019 requesting it to furnish the evidence to prove the genuineness of the transactions mentioned therein before the issuance of the impugned notice under section 148 of the said Act, however, the petitioner had chosen not to respond to the said notice. Be that as it may, the respondent has considered all the objections in detail raised by the petitioner in the impugned order dated 13.12.2019, which order being just and proper does not call for any interference. The petition being devoid of merits is dismissed. - R/SPECIAL CIVIL APPLICATION NO. 22613 of 2019 - - - Dated:- 6-8-2021 - HONOURABLE MS. JUSTICE BELA M. TRIVEDI And HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 1,50,23,831/-. The petitioner thereafter was provided with a copy of reasons recorded for reopening of the assessment vide the letter dated 12.11.2019 (Annexure G), to which the petitioner had filed the objections on 22.11.2019 (Annexure H). The respondent vide the impugned order dated 13.12.2019 (Annexure I) disposed of the said objections, which is under challenge before this Court by way of present petition. 4. The petition has been resisted by the respondent by filing an affidavit-in-reply in which it has been contended inter alia that the respondent had received the information from two sources firstly, from DDIT (Investigation), Unit 1(2), Ahmedabad, who had reported that the petitioner - assessee was one of the beneficiaries of the accommodation entries to the tune of ₹ 20 lacs for the A.Y. 2012-13, as one Manojbhai H. Patel, proprietor of M/s. Kamdhenu Marketing of Ahmedabad had provided bogus sales entries to the petitioner. The other information received was from the DDIT (Investigation), Unit 1(3), Ahmedabad, who had reported that pursuant to the search action conducted under section 132 of the said Act on 11.09.2018 in case of Shri Jignesh Shah, Ahmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to submit that the reopening of the assessment was not permissible merely because the subsequent Assessing Officer had a different view on the material already placed before the Assessing Officer at the time of original assessment. Mr. Patel has also relied upon the decision of this Court in the case of Hynoup Food Oil Industries Ltd. versus Assistant Commissioner of Income Tax reported in (2008) 175 Taxman 331 (Gujarat), to buttress his submission that only the Assessing Officer who had issued the notice under section 148 of the said Act has to record the reasons, and in the instant case, the reasons have been recorded by the Assessing Officer different from the Officer who had issued notice under section 148 of the said Act. 6. Per contra, the learned Senior Advocate Mr. M.R. Bhatt submitted that the two investigating teams having given credible information to the respondent, the petitioner was called upon to furnish the details by issuing notice under section 133(6) of the said Act, however, the petitioner did not respond to the said notice and thereafter the respondent authority had issued the notice under section 148 for reopening of the assessment for the reasons record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s . It cannot be gainsaid that the tax-evaders in order to bring back their unaccounted income to their books of accounts without paying any tax thereon, use numerous methods and techniques. For routing the unaccounted income, the taxevaders under the guise of loan entries or share capital entries or other camouflage entries create an appearance of legitimate transactions in their books of accounts. Such well recognized rackets are controlled and conducted by the persons known as accommodation entry providers , and the accommodation entries are provided by them to the persons who are the taxevaders. The entries on paper apparently may appear to be of routine nature, but the trail of money transited through the layers would be subsequently unearthed during the search and seizure operations conducted either at the assessee s premises or his associate s premises or at the premises of some third party, who may be an accommodation entry provider. Under the circumstances, when the material is brought to the notice of the Assessing Officer, which would prima facie discredit or impeach the genuineness of the particulars furnished by the assessee at the time of original assessment, and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proprietor of M/s. Kamdhenu Marketing of Ahmedabad had given bogus sales entries of ₹ 20 lacs to the petitioner through his bank account and had transferred large amount to various entities through various linked account by RTGS, and that the assessee was one of the beneficiaries of the said accommodation entries to the tune of ₹ 20 lacs. Another information received from DDIT (Inv.) Unit 1(3) by the Assessing Officer was that during the search action conducted under section 132 of the said Act on 11.09.2018 in case of Jignesh Shah, it was found that Jignesh Shah was managing and controlling multiple companies and concerns, which were not carrying out any genuine business activities, but were providing accommodation entries like unsecured loan, share premium, bogus LTCG / STCG, contrived losses etc., and that such concerns were infact non-existent at their addresses. It was also found that the Directors of the said companies / persons in whose names the concerns were registered, had filed their affidavits that they were not carrying on any genuine business activities and were engaged into providing accommodation entries through Shri Jignesh Shah. It was also found that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment year under consideration. Assumption of jurisdiction on the part of the Assessing Officer, is since based on fresh information specific and reliable and otherwise sustainable under the law, the challenge to reassessment proceedings can not be entertained. Though it was sought to be submitted by the learned advocate Mr. D.R. Patel that the petitioner had produced all the relevant and material documents before the Assessing Officer at the time of scrutiny assessment, and it was not open for the subsequent Assessing Officer to reopen the assessment under the guise of having received the information from the investigating teams, the Court does not find any substance in the said submission. Mere production of the books of accounts or the documents along with return of income could not be said to be full and true disclosure of all material facts, more particularly when it is subsequently found, on the basis of credible information and tangible material that the petitioner was the beneficiary of the accommodation entries provided by the entry provider Jignesh Shah. 12. Even in the case of New Delhi Television Ltd. versus Deputy Commissioner of Income Tax (supra), relied upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do nothing. It would be travesty of justice to allow the assessee that latitude. (Emphasis supplied) 14. In the case of Ess Kay Engineering Co. (P) Ltd. versus Commissioner of Income Tax reported in 247 ITR 818 (SC), also it has been observed that the Assessing Officer is not precluded from reopening the assessment of an earlier year on the basis of fresh material discovered subsequently during the course of assessment of next assessment year. 15. It was also sought to be submitted by the learned advocate Mr. D.R. Patel for the petitioner that the reopening was sought to be done on the basis of false and incorrect material as no amount of ₹ 20 lacs was received from Kamdhenu Marketing, however, the petitioner had made purchases from Kamdhenu Marketing and had made payments against such purchases, and that the alleged receipt of accommodation entry of ₹ 1,05,00,000/- from Jignesh Shah was also based on false information, inasmuch as, the petitioner had borrowed the said amount from Arihant Enterprise Ltd. at the relevant time when Shri Dhiren Shah was the Director of the Company and not Jignesh Shah. Apart from the fact that no such contention was raised ..... X X X X Extracts X X X X X X X X Extracts X X X X
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