9911796707
TMI Blog2022 (10) TMI 816X X X X Extracts X X X X X X X X Extracts X X X X ..... ef is that assessee has filed return of income declaring total income of Rs.13,74,929/- on 30.07.2013. A search action u/s 132 of the Act was conducted in the case of Dev Land & Housing (DLH) Group on 10.12.2013 and residential premises of the assessee was also covered in search action. During the course of search what'sapp message were found in the mobile phone of the assessee regarding communication of investment made in cash. The statement of the assessee was recorded u/s 132(4) of the Act on 10.12.2013 wherein he stated that cash of Rs.3.61 crores had been given to him by Shri Vijay T. Thakkar chairman of DLH Group for investment. However, Shri Vijay T. Thakkar had denied of giving any cash amount to the assessee. On the basis of aforesaid information, the A.O recorded reason that income chargeable to tax to the amount of Rs.3.61 crores had escaped assessment in the hand of the assessee pertaining to the assessment year 2013-14. Accordingly, a notie u/s 148 of the Act on 20.12.2016 was issued to the assessee. During the course of reassessment proceedings the assessee had made submission that he had given loan of Rs.1,65,00,000/- and his wife Nirja Thakkar had given loan of Rs.5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... balloon payment. It's not a joke and I'm very serious. Hence stick to what you stated and confirmed without a change. Be a man of words. 10:23PM, 3 Apr - V.K. Takkar : Being your biggest investor, I definitely expect huge priority in how you deal with me & my payments. 10:28PM, 3 Apr - V.K. Takkar: I have given you Amounts which you had not ever seen in your entire life from any other person. What have you paid me in return ? ZERO ! 10:36PM, 3 Apr - V.K. Takkar : Hence, make payments to us as already committed by you. No after thoughts permitted when you are sitting away. 10:53PM, 3 Apr - V.K. Takkar : Sandeep ji and Devnani ji May also like to express their views. 7:01AM, 4 Apr - Sandeep Srivastva Kandivali: I entirely agree with Vijayji. Karan has to honour his words. Work hard n remit the Ami as decided. There is no discussion on that anymore. 8:48AM, 4 Apr - Devnani Vaibhavji 112:1 entirely agree with Vijaykumar ji and Sandeep ji as we have been pushed into a mess by Karan for no fault of ours and has he sent the account details for verifications. 9:36AM, 4 Apr- V.K. Takkar: Karan Why is sending your account statement is taking so much time when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On Mr. Sandeep Srivastava's , Karan's and Shweta's joint insistence, persuasion and assurances of decent timely returns to me on my loan investments made with them, I got lured to lend monies to them. They paid the partial returns by cheque for some initial time. But thereafter, they stopped picking up our phone calls and became very difficult to contact. They even closed their office in Andheri (W), their last known address to me To the best of my knowledge, they are absconding from India. Karan's parent's house is in Bandra. To my last gathered knowledge, he should be in Dubai. Q. 16 As you said that were lured by the attractive rate of interest offered by Karan Dodani, please state how much was the rate of interest promised by him and in which business he was indulged in? Ans. Karan Dodani had promised to give 15% returns per month on my investment made with him plus other unspecified benefits like bonus, incentives etc. He represented that he wanted monies for expanding his own business without any reference made to us. We were not at all concerned with his nature of business and we lent him monies all in good faith locally. My investment with him was m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bai. . [email protected] is private email address of my Advocate, Mr. Nirmal Devnani, whom I keep posted from time to time with a view to launch criminal case against these cheaters without letting them (Karan and Shweta) know. Q. 22 Do you keep receiving any kind of communication from Karan or Shweta (ARACELIA) in the form of account statement/usage of your funds/profit earned monthly? Ans. No such communication has ever been received by me from them. They don't consider themselves accountable to us. Q. 23 Have you ever opened any account with Karan's Company in Dubai against which any User ID was issued to you? Ans. No account was ever opened with Karan's Company in Dubai and there was no issue of any User ID in the that case. I do not have any such User ID or accounts opened with him. 25 You had stated in the answer to your question 17 of this statement that you had invested a total sum of Rs. 2,15,00,000/- with Karan/Shweta as per your books. Now please refer to the following Whatsapp conversation (Annexure-2): (4th April, 4.23 pm) VK Takkar: My preliminary observation on the limited trading account statements sent by Karan from August 2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nversation, these entire transactions took place between july to December, 2012. Q.27 What all do you know about Karan Dodani and Shweta Grover? Please furnish their PAN details, residence, office address and other whereabouts? Ans. Karan's full name is Karan Mohan Dodani and his passport no. is G3668500 issued on 14.06.2007. In 2012, he was residing at 234/7, Gulmohur Building. 28th Road, Bandra (W), Mumbai-50. His PAN is AJCPD0527E. Mrs. Shweta Ramesh Grover is his wife. Her passport no. is F7631643 issued on 21.04.2006. In 2012, she was residing with her parents at A-704, Vaibhav V Palace, New Link Road, Oshiwara, Jogeshwari (w), Mumbai. They had promoted a company in India by the name Aracelia Forex Trading Pvt. Ltd. with its CIN no. U93030MH2011PTC219959 incorporated in India. After taking monies from 100 of investors, they have run away to Dubai and to the best of my information they are continuing a similar business of, soliciting others money under the name "Aracelia Limited", incorporated at Ras al khaima, Dubai, under the provisions of RAK investment Authority international business company regulation, 2006 and having registration no. A190/12/11/4134. They hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by two individuals Karan Dodani and Shweta Grover Dodani by making investment in forex trade. The business was to be carried out in Dubai with additional investment to be sourced by these persons. The assessee has cited in the statement (Q No. 16) that he was promised a return of 15% per month. ii. The total investment at the time of whatsapp communication on 3.4 2013 was Rs 5.76 crore. The appellant had received certain amounts as return from these two persons and these amounts had been duly offered to tax in earlier years. iii. There is evidence of an investment of Rs 1.65 crore by the assessee and Rs 50 lakh by his wife in the above scheme. This is reflected in the books of the appellant and his wife. For the remaining amount, the appellant, in his statement, has claimed that the same were provided by Vijay Thakkar of DLH where the appellant was an independent director. iv. The Dodanis, after they went to Dubai, refused to honour the arrangement and have not paid either any interest or return of capital and the entire money has been lost. 6.10. Subsequent to recording of the above statement, the assessee has tried to correct the explanation with respect to source of Rs 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 27th July 2015 "3........ By July 2012, complainant had invested about Rs. 1,65,00,000/- and his wife had invested Rs 50,00,000/-. During the period November 2012 to March 2013, Karan had deposited Rs.11,54,750/- In his account and Rs 4,52,500/- in the account of his wife Niraja. From January 2013, all the persons above mentioned were evading to meet the complainant. He made enquiries. He had contacted the present applicants also on various occasions, however, they evaded to give him proper answers. Complainant and other investors requested Karan and Shweta to return the amounts. There was negotiation and in the course of negotiation, complainant and others were informed that Karan and Shweta would pay Rs.20 crores by January, 2014 and till then complainant and others should not trouble them. They had given some cheques, which were dishonoured. 4. It is pertinent to note that on 19. 11.2013, complainant had received email from Karan informing him that he has deposited Rs 3 crore in Punjab National Bank from Standard Chartered Bank. Complainant had enquired with Punjab National Bank and had learnt that no amount was transferred in his name......... 6...... A farce is mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an after-though after Vijay Thakkar had disowned the transaction. It was also been pointed out by the AO that a return of 15% per month is not available in the market and cannot be believed to be true. He accordingly relied on the original, statement of the assessee to treat the balance amount as unexplained. 6.15 The moot point to be decided here is whether the original statement of the assessee needs to be relied upon or the revised explanation filed through an affidavit needs to be relied upon in order to arrive at a decision on this issue. In my view, it is important to examine the whatsapp message critically as this forms the basis of both, the statement as well as the affidavit. Also, if the AO accepts the findings of the statement recorded during the search action, it is incumbent on him to examine the entire statement and not merely pick up the favourable parts of the statement. Another fact which cannot be ignored is the fact that the assessee has been a victim of a ponzi scheme floated by unscrupulous operators (Karan and Shweta Dodani) as found by the Economic Offences Wing of Bombay Police as well as the Bombay High Court. In light of the various evidences mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the assessee has also adopted. 6.17 It is also noted that there is sufficient evidence on record in form of the findings of the Hon'ble Bombay High Court and the Sessions Court of Bombay as well as findings of the EOW which are noted by the Court while deciding the anticipatory bait of the parents of Shweta Dodani that Karan/Shweta Dodani were running a ponzi scheme to defraud gullible investors and the assessee, in his greed, was a victim of such scheme. Such schemes operate on the basic premise of unrealistic returns and hence, the action of the AO in rejecting assessee's explanation by holding that that there are no such high return schemes in the market is not found to be correct. It is also noted that the issue of custodial interrogation of Shweta Dodani's parents has reached upto Supreme Court and ultimately, both Bombay High Court as well as Sessions Court have denied any anticipatory bail to these persons while Karan and Shweta Dodani are absconding in Dubai as brought out in the statement recorded from the assessee. 6.18 The appellant's submission that generally capital contribution is made in round figures while the amount mentioned in the whatsap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvested a total sum of Rs. 2,15,00,000/- with Koran / Shweta as per your books. Now please refer to the following Whatsapp conversation (Annexure-2) : (4th April, 4.23 pm) VK Takkar : my preliminary observation on the limited trading account statements sent by Koran from August, 2012 to March 2013 : Against my capital investment to him of Rs.5.76 crores from July to December, 2012, he has deposited only Rs.3.95 crores into trading account in addition, he must have received additional monies also from other investor like Sandeepji, Devnaniji etc. during this period. Hence there is a huge shortfall in Koran making deposit into his trading account. It is clear that investor's monies have been siphoned off into some other channels by Koran. Why is the balance money not deposited by the Koran into trading account? In the light of these statements made by you in Whatsapp conversation, Please specify where did this balance money come from as you had invested only Rs.2.15 crores through Cheque. Please give us a clear bifurcation of the actual amount invested with Karan/Shweta with clear cut cash and cheque component. Ans. Whatever I had stated in the answer to the question No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t'sapp message. The assessee had also explained before the lower authorities about the exact detail of amount mentioned in the what'sapp message which is reproduced as under: Particulars Amount in INR Amount in INR Initial Capital Investment (also duly reflected in Tally Books of Account even before the time of IT search from 10 Dec 2013 to 13 Dec 2013) made by Appellant and Appellant's wife 2,15,00,000 Add: Total Interest calculated as receivable on the accumulated investment of INR 2,15,00,000 Compound @ 15 percent per month calculated upto April 2013 when the WhatsApp Message of April 2013 was sent to Karan Dodani (INR 5,92,07,000) - INR 2,15,00,000 3,77,07,000 Less: Return of Borrower by Cheque to Appellant and Appellant's wife (income tax already paid threon even before the time of IT search from 10 Dec 2013 to 13 Dec 2013) (16,07,000) 3,61,00,000 Calculated total amount outstanding 5,76,00,000 The assessee has corroborated with the aforesaid evidences that his statement was given during the disturbed mental condition under coercible interrogation for several hours and there was supporting evidences to demonstrate that there was valid reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of assessee from the case of Sumati Dayal Vs. CIT (1995) 214 ITR 801 applied by the A.O without disproving the specific supporting evidences existed in the case of the assessee. The Hon'ble Madras High Court in the case of M. Narayan N. Boos. Vs. ACIT, Circle (339 ITR 192) held that addition made by the A.O merely on the basis of retracted statement u/s 132(4) could not be sustained in the absence of any evidence material or recovery of any movable or immovable assets at the time of search to corroborate the disclosure made by the assessee. The Hon'ble Supreme Court in Vinod Solanki Vs. Union of India (92 SCL 157 held that evidence brought as record by way of confession which stand retracted must be substantially corroborated by other independent and cogent evidences which would lead adequate assurance to the court that it may seek to rely thereupon. A person making admission is at liberty to contradict them or show that they are untrue or mistaken, or made under misapprehension. Burden to prove that admission as incorrect is on the maker and in case there is failure on the part of maker to prove that earlier stated facts were wrong, his earlier statement was sufficient, if retr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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