9911796707
TMI Blog2024 (7) TMI 958X X X X Extracts X X X X X X X X Extracts X X X X ..... he amount of Rs. 17,00,000/- was remitted to the assessee in view of cash receipts of the assessee. The investigation wing has also not furnished any material to establish that the amount received by the assessee was an accommodation entry. So far as the assessee is concerned, the transaction of receipt of Rs. 17,00,000/- and the returned thereof are genuine transactions. Hence, the addition made in the hands of the assessee are totally uncalled for and unlawful. The same was wrongly made by the AO only on the ground that the information was received from the investigation wing. AO has wrongly acted upon the receipt of information from the investigation wing as a thumb rule, without causing any enquiry at his level - CIT(A) has also erred in confirming the same. Hence, addition of Rs. 17.00 lacs is directed to be deleting by allowing the appeal of the assessee. - Hon ble Shri Sandeep Gosain, Judicial Member For the Assessee : Shri S.L. Poddar, Advocate For the Revenue : Shri Rajesh Kumar Meena, Addl. CIT-DR ORDER PER: SANDEEP GOSAIN, JM This appeal filed by the assessee is directed against order of the ld. CIT(A) dated 14-03-2024, National Faceless Appeal Centre, Delhi [ hereinaf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the opinion of the AQ satisfactory/ the sum so credited may be charged to income tax as income of the appellant of that year. 5.6 Considering the aforesaid facts and the various decisions as cited above, it is clear that the assessee has taken accommodation entry from M/s Bright Corporation which is a bogus concern of Shri Samsun Paul Gohli Indulging in providing accommodation entries Further from the above facts and surrounding circumstances, human conduct, preponderance of probabilities etc. I find that the AQ has clearly established that the impugned transaction is a sharm transaction Le, the motive is not to derive income but is a sham transaction that too by an arrangement and it is a manipulated transaction in collusion With the accommodation entry provider to paint creditworthiness to the transaction. This is in accordance with the ratio laid by the Hon'ble Apex Court in Sumati Dayal Vs Commissioner Of Income-Tax. 214 ITR 801 (SC) that the apparent must be considered the real until it is shown that there are reasons, to believe that the apparent is not the real and that the taxing authorities are entitled to look into the surrounding circumstances to find out the reality ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee that the assessee had received Rs. 17,00,000/- on 13.11.2016 from M/s Bright Corporation, Ahmedabad as accommodation entry. In view of this, the case was selected for compulsory scrutiny. From the records, it is noted that the DDIT(Inv.) Ahmedabad, passed an information to the AO that Shri Samsun Paul Gohil, partner in Nirav Enterprises had deposited a sum of Rs. 5,76,26,000/- in RBL Bank Ltd., Ahmedabad in the account of the firm M/s Nirav Enterprises. During the course of statement recorded u/s 131 of the Act and Shri Samsun Paul Gohil further reported that during the demonization period in all he had deposited Rs. 42,00,00,000/- in the bank account of the following concerns :- 1. M/s Nirav Enterprise. 2. M/s Bright Corporation. 3. M/s M.S. Trading Co. 4. Janta Trading Company. 5. Nirav Auto Impex P. Ltd. It is noted that in the account of M/s Bright Corporation, deposit was made of Rs. 95,00,000/- that too during the demonization period. It was also admitted by Shri Samsun Paul Gohil that in order to explain the deposits in the bank accounts fake sales of gold were recorded in the books of accounts. It was further gathered that out of the deposit of Rs. 95,00,000/- in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee the DDIT(Inv.) Ahmedabad, passed on information to the AO that Shri Samsun Paul Gohil, partner in Nirav Enterprises, Ahmedabad had deposited a sum of Rs. 5,76,26,000/- in RBL Bank Ltd., Ahmedabad in the account of the firm M/s Nirav Enterprises. During the course of statement recorded u/s 131 of the Act, Shri Samsun Paul Gohil further reported that during the demonization period in all he had deposited Rs. 42,00,00,000/- in the bank account of the following concerns :- 1. M/s Nirav Enterprise. 2. M/s Bright Corporation. 3. M/s M.S. Trading Co. 4. Janta Trading Company. 5. Nirav Auto Impex P. Ltd. In the account of M/s Bright Corporation deposit was made of Rs. 95,00,000/- that too during the demonization period. It was also admitted by Shri Samsun Paul Gohil that in order to explain the deposits in the bank accounts fake sales of gold were recorded in the books of accounts. It was further gathered that out of the deposit of Rs. 95,00,000/- in the account of Bright Corporation a sum of Rs. 17,00,000/- were transferred on 13.11.2016 to the account of the assessee through RTGS. It is this amount of Rs. 17,00,000/- transferred in the bank account of the assessee on 13.11.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edabad. Sir, it is respectfully submitted that making an inference without evidence is not as per law we request you to kindly provide the basis or material which is in your possession which has permit you to draw the conclusion there from that we are crew member in the conspiracy providing accommodation entries. Sir, such type allegations are not true fair. How one can impose such allegation on the assessee without providing any evidence which are to be used against him. If any material evidence related to assessee is utilized or used against him the assessee should be given an opportunity of being heard to examine and cross examine the other party i.e. M/s Bright Corporation. It is respectfully submitted that identity of a person from whom the amount is received has been proved, the transaction with said party means Bright Corporation took place through Banking channel. As per income tax provision if any discrepancy found it should be taxed in the hands of M/s Bright corporation not in the hands of assessee. Thanks and Regards Deepak Kumar Shah Bazaar no. 01 Ramganjmandi, Kota, 326519 It is also noted that in the aforesaid letter the assessee specifically requested the AO to prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lnerable as they may require reconsideration. If answers in respect of each of the questions are indicated in the absence of reasonable opportunity being afforded to the assessee, they would be of academic interest inasmuch as the answers against the assessee would become vulnerable on account of the need to undo the absence or reasonable opportunity. A clear and conclusive finding binding on the parties can be given only after reasonable opportunity is given to the assessee as found by the Tribunal. No answer should be given in advisory jurisdiction which would not finally decide the issue since final finding can be arrived at only after giving reasonable opportunity to the assessee and explanation given by the assessee would have material bearing on the finding. It is necessary that the Assessing Officer gives opportunity to the assessee. Tribunal has not considered the evidence in its proper perspective while rendering the decision in appeal and accordingly, the findings of the Tribunal are vitiated in law. As the final factfinding forum, the Tribunal has to consider the same again. Since Tribunal has recorded a finding that reasonable opportunity has not been given to the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he hands of assessee also and the same was confirmed by CIT(A) and Tribunal Not justified Apparently, there was a violation of principles of natural justice as the statement of one of the important witnesses, namely, R on which heavy reliance was placed by the AO is neither referred to in the assessment order nor copy thereof was given to the assessee nor the assessee was given an opportunity of cross-examining the said R Authorities could not be absolved from doing so on the ground that the facts stated by R were admitted by the assessee K had not only retracted his earlier statement but also made a voluntary disclosure, along with two other partners of DCI, in the sum of Rs. 11 lacs which included the amount of pronote of Rs. 8,78,358 Legal effect of the statement recorded behind the back of the assessee and without furnishing the copy thereof to the assessee or without giving an opportunity of cross-examination, is that if the addition is made, the same is required to be deleted on the ground of violation of the principles of natural justice Orders of all the three authorities set aside and addition deleted. 5. COMMISSIONER OF INCOME TAX vs. EASTERN COMMERCIAL ENTERPRISES (HIGH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name of firm Nirav Enterprises where he was as partner. Further, he also deposed that Rs. 42,00,00,000/- were deposited by him in bank accounts of the following firms :- 1. M/s Nirav Enterprise. 2. M/s Bright Corporation. 3. M/s M.S. Trading Co. 4. Janta Trading Company. 5. Nirav Auto Impex P. Ltd. It was further admitted by him that he had deposited Rs. 95,00,000/- in the bank a/c of the Bright Corporation during the period of demonetization. In the facts and circumstances of the case, the sum of Rs. 95,00,000/- deposited in the bank a/c of Bright Corporation requires to be considered in the hands of Shri Samsun Paul Gohil. So far as the assessee is concerned, the source of Rs. 17,00,000/- is M/s Bright Corporation. The source of deposit in the bank account of Bright Corporation is apparently Shri Samsun Paul Gohil. Thus, so far as the assessee is concerned the source stands proved. The source being already on record with the department, no action was required in the hands of the assessee for treating the deposit of Rs. 17,00,000/- as accommodation entry. The entire amount of Rs. 5,76,26,000/- / Rs. 42,00,00,000/- required to be considered in the hands of Samsun Paul Gohil. The d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received by the assessee from N had been repaid to him within a period of 15 days and the said transaction was a bona fide transaction and the provisions of s. 68 were not attracted, no interference is called for with the order of Tribunal deleting addition It is noted from the records that in the case of the assessee the amount of Rs. 17,00,000/- received on 13.11.2016 stands fully explained. It is a genuine transaction through banking channels. The amount was remitted in the account of the assessee through RTGS. The source of deposit was already known to the department i.e. Shri Samsun Paul Gohil. Thus, the source of deposit also stood fully explained. There was no case for treating the same as unexplained u/s 68. Addition u/s 68 can be made only if the source of amount remains unexplained. In the case of the assessee the source of deposit was already on record with the department. Hence, the AO has wrongly made addition u/s 68. The ld. CIT(A) has also erred in confirming the same. Thus there were no case for treating the amount as accommodation entry. There is no statement of Samsun Paul Gohil that the amount of Rs. 17,00,000/- was remitted to the assessee in view of cash receip ..... X X X X Extracts X X X X X X X X Extracts X X X X
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