Mr. Dharan v. N. J. Jamadar, Jj.date : 28[Th] January, 2022(Through Video Conferencing

Tandle IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 3089 OF 2021 Rajdeep Marketing Private Limited … Petitioner. VersusIncome Tax Officer Ward-3(3)(1), Mumbai And Ors. … Respondents. . . . . . . Mr. Dharan V. Gandhi, Advocate for the Petitioner.Mr. Sham V. Walve, Advocate for the Respondents-Revenue. CORAM : K. R. SHRIRAM AND N. J. JAMADAR, JJ.DATE : 28[th] JANUARY, 2022(THROUGH VIDEO CONFERENCING) P. C.: 1.Petitioner received a notice dated 30[th] March 2021 underSection 148 of the Income Tax Act, 1961 (the said Act), for AssessmentYear 2015-2016 from respondents, stating that, they have reasons tobelieve that petitioner’s income chargeable to tax has escaped assessment,within the meaning of Section 147 of the Act. In the reasons recorded forescapement of income, paragraph No.2 reads as under :- “2. In the case of assessee there was information receivedform the Pr. Director of Income-tax (Investigation), Kolkatavide letter dated 30.6.2016 and conveyed that credibleinformation was received that Mr. Sunil Shaw, Mr. SaileshKumar Singh, Mr. Ramu Saha, Mr.Gautam Saha andMr.Madhusudhan Saha maintain various current account inthe name of different firms/concerns/companies. They havedeclared trading as business activity. There were high valuecash deposits in these accounts and the proceeds wereimmediately withdrawn in cash from ATMs, cheque issuance,fund transfer, RTGS. The case has been investigated by DDIT (Inv.) Unit 3(1), Kolkata and the list containing thebeneficiaries was also encoded, wherein assessee’s nameappears at Sr. No.2 for Rs.45,00,000/- transaction withSKYLARK LOGISTICS AGENCIES PVT LTD., INDUSIND A/C-0305-JG0364-050/200011924533 PERIOD – 01/07/2011 TO01/2/2016. (Inv.) Unit 3(1), Kolkata and the list containing thebeneficiaries was also encoded, wherein assessee’s nameappears at Sr. No.2 for Rs.45,00,000/- transaction withSKYLARK LOGISTICS AGENCIES PVT LTD., INDUSIND A/C-0305-JG0364-050/200011924533 PERIOD – 01/07/2011 TO01/2/2016. It was also conveyed that statement of Shri MadhusudhanSaha, Ramu Saha, Kausik Das, Sailesh Kumar Singh, SanjivKumar Jaiswal, Sunil Shaw, all dummy directors were recordedon oath, where they all accepted in their statement that theyhave arranged for bogus accommodation entry andbeneficiaries have been identifies with PAN and address bythe DDIT (Inv)., Unit 3(1), Kolkata. They all confirmed thatthey were the dummy directors of the companies and thecompanies had no real business and these companies aremanaged and controlled by Shri Neeraj Jain, Shri VineetKejriwal, Sanjay Agarwal and Aswini Mehta. It was alsoconveyed that a survey operation at the ofÏce premises of M/s Amit Bhagat & Associates was conducted on 29.12.2014 atKolkata by the DDIT (Inv)Unit 4(3),. During the course ofsurvey, the statement of Sri Neeraj Jain was recorded. In hisstatement, he has stated that the main source of his incomeis from commission for providing accommodation entries inthe form of share capital, unsecured loans, and bogus sub-contractual work through various jamakharchi/paper/shellcompanies to various beneficiaries. He has also stated thenames of dummy Director of these companies who are hisemployees who lent their names for directorship in lieu ofmonthly salary. They are Madhusudhan Saha, Goutam Saha,Dilip Jain, Santosh Kumar, Prakash Jha. From the examinationof more than 16 bank accounts, it is seen that the accountswere being used for providing accommodation entries tovarious beneficiaries in the form of bogus sale of shares,share capital, unsecured loans, providing bogus income andlosses from commodity trading etc., from various companiesrunning directly under the control of Neeraj Jain, VineetKejriwal, Sanjay Agarwal, Aswin Meha. It was found that thecash was first deposited in the accounts of the proprietorship /firm/ individual’s bank accounts. Then the cash wastransferred to the bank accounts paper/shell/ jamakharchicompanies for layering and ultimately the fund wastransferred by Transfer / RTGS to the beneficiaries in theformof bogus sale of share capital, unsecured loans,providingbogus income and losses form commodity tradingetc. It was also found that some time funds were credited inthe bank accounts of various proprietorship concerns/companies in the form of RTGS/cheque which is also a kind ofaccommodation entry used for the purpose of bogus billingand sell of shares by the Jamakharchi/ shell/ paper concerns.It was also conveyed that from examination of varioustransactions of the beneficiaries it may be concluded that thebeneficiaries have booked bogus accommodation entries in various forms in their books and portions of sections 68 and69 of the IT Act read with the provisions of section 115BBE isapplicable.” Petitioner filed objection to this notice. These objections cameto be rejected by an order dated 6[th] July 2021. Petitioner is impugningthis notice dated 30[th] March 2021 and this order dated 6[th] July 2021 inthis Petition. 2.For Assessment Year 2012-13 also petitioner had received anotice dated 26[th] March 2019 under Section 148 of the Act and thereasons for reopening was identical to what has been recorded forAssessment Year 2015-16. various forms in their books and portions of sections 68 and69 of the IT Act read with the provisions of section 115BBE isapplicable.” Petitioner filed objection to this notice. These objections cameto be rejected by an order dated 6[th] July 2021. Petitioner is impugningthis notice dated 30[th] March 2021 and this order dated 6[th] July 2021 inthis Petition. 2.For Assessment Year 2012-13 also petitioner had received anotice dated 26[th] March 2019 under Section 148 of the Act and thereasons for reopening was identical to what has been recorded forAssessment Year 2015-16. 3.Mr. Gandhi submitted that when petitioner received a noticeunder Section 148 for Assessment Year 2012-13, petitioner had filed itsobjections along with an Affidavit of one Kishore J. Tanna, Director ofPetitioner stating that petitioner had nothing to do with M/s SkylarkLogistics Agencies Pvt. Ltd. and petitioner never had any bank accountwith Indusind Bank as alleged in the reasons recorded for escapement ofincome. Mr. Gandhi submitted that after considering this affidavit andobjection, an order dated 24[th] May 2019 was passed for Assessment Year2012-13 confirming the validity of notice issued under Section 148 of theAct and assessment order dated 4[th] December 2019 for Assessment Year2012-13 came to be passed. Mr. Gandhi further submitted that in the assessment order for Assessment Year 2012-13 respondents have accepted the explanation of petitioner that petitioner had nothing to do with M/s. Skylark LogisticsAgencies Pvt. Ltd. and that it did not have the bank account with Indusindbank as alleged. Mr. Gandhi made this submission because in theassessment order there is no addition made under this head. 4.We have considered the petition, the affidavit-in-reply as wellas heard the counsels and we are in agreement with the submissions madeby Mr. Gandhi. If on identical reasons raised for Assessment Year 2012-13 petitioner’s explanation has been accepted and no addition made,certainly on the same ground, we wonder how an allegation ofescapement of income can be made for the subsequent Assessment Years.In our view, the reasons have been recorded without application of mind.5.We have to also note that there is another Writ Petition No.284 of 2022 listed today of the same petitioner for Assessment Year 2014-15, in which also the reasons recorded for escapement of income isidentical to Assessment Year 2015-16 and Assessment Year 2012-13. 6.Mr. Walve made a valiant attempt to justify the reasons andissuance of notice, but when he was confronted with these irrefutablefacts, Mr. Walve had no option but to throw in the towel. 7.In the circumstances, petition is allowed in terms of prayerclause – (a), which reads as under: “(a)that this Hon’ble Court may be pleased to issue a Writ ofCertiorari or a Writ in the nature of Certiorari or any otherappropriate Writ, Order or direction, calling for the records of thePetitioner’s case and after going into the legality and proprietythereof, to quash and set aside the said notice dated 30[th] March 2021 (“Exhibit K”) and the subsequent Order dated 06[th] July 2021(“Exhibit O”). 8.Petition disposed. WRIT PETITION NO. 284 OF 2022 9. For the reasons recorded in Writ Petition No.3089 of 2021, this Petition is also allowed in terms of prayer clause – (a), which reads asunder: “(a)that this Hon’ble Court may be pleased to issue a Writ ofCertiorari or a Writ in the nature of Certiorari or any otherappropriate Writ, Order or direction, calling for the records of thePetitioner’s case and after going into the legality and proprietythereof, to quash and set aside the said notice dated 30[th] March2021 (“Exhibit K”) and the subsequent Order dated 06[th] July2021 (“Exhibit O”). WRIT PETITION NO. 283 OF 2022 ALONG WITH WRIT PETITION NO. 311 OF 2022 2021 (“Exhibit K”) and the subsequent Order dated 06[th] July 2021(“Exhibit O”). 8.Petition disposed. WRIT PETITION NO. 284 OF 2022 9. For the reasons recorded in Writ Petition No.3089 of 2021, this Petition is also allowed in terms of prayer clause – (a), which reads asunder: “(a)that this Hon’ble Court may be pleased to issue a Writ ofCertiorari or a Writ in the nature of Certiorari or any otherappropriate Writ, Order or direction, calling for the records of thePetitioner’s case and after going into the legality and proprietythereof, to quash and set aside the said notice dated 30[th] March2021 (“Exhibit K”) and the subsequent Order dated 06[th] July2021 (“Exhibit O”). WRIT PETITION NO. 283 OF 2022 ALONG WITH WRIT PETITION NO. 311 OF 2022 1010.We are informed that there are two other petitions filed bypetitioner being Writ Petition No. 283 of 2022 and Writ Petition No.311 of2022 for Assessment Year 2013-14 and 2016-17, respectively, where alsoreasons identical to the reasons for reopening recorded for AssessmentYear 2015-16, has been recorded. 11.Therefore we pass the following order :- (i)Mentioned. Not on board. (ii) By consent of the parties, taken up for hearing. (iii) For the reasons recorded in Writ Petition No.3089 of 2021, MANOJ RTANDALE both Petitions are also allowed in terms of prayer clause (a), which readsas under: “(a)that this Hon’ble Court may be pleased to issue a Writ ofCertiorari or a Writ in the nature of Certiorari or any otherappropriate Writ, Order or direction, calling for the records of thePetitioner’s case and after going into the legality and proprietythereof, to quash and set aside the said notice dated 30[th] March2021 (“Exhibit K”) and the subsequent Order dated 06[th] July2021 (“Exhibit O”). (N. J. JAMADAR, J.) (K. R. SHRIRAM, J.) Digitally signedby MANOJ RTANDALEDate:2022.01.3118:00:55+0530