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TMI Blog2021 (12) TMI 1414X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act"). 2. Since, the issues involved in all the appeals are common and identical; therefore, these appeals have been heard together and are being disposed of by this consolidated order. For the sake of convenience, the grounds as well as the facts narrated in ITA No.347/AHD/2017, for assessment year 2009-10 have been taken into consideration for deciding the above appeals en masse. 3. Grounds of appeal raised by the assessee in lead case in IT(SS)A No. 347/AHD/2017 for assessment year 2009-10, wherein the grounds of appeal raised by the assessee are as follows: "Grounds of appeal against the order dated 21/03/2017 u/s 250 of the Act passed by the learned Commissioner of Income-tax (Appeals)-4, Surat. 1. The learned Commissioner of Income-Tax (Appeals) has erred in law and in facts in upholding the validity of notice issued u/s 153C of the I.T. Act 1961 (hereinafter referred to as "The Act") without appreciating the fact that provisions of sec 153C are neither applicable nor complied with as mandated in sec 153C of the Act. Therefore, the Ld CIT(A) erred in upholding the impugned assessment order. 2. The learned Commissioner of Income-Tax (Appeals) has erred in law and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessment of Rs.12,08,834/- as alleged commission on sales, import purchase and loan for acting as accommodation bills providers merely on the basis of statement of the third party recorded u/s 132(4) without appreciating the fact that alleged statements have already been retracted and corroborative evidences filed in support of regular business activity. 8. Without prejudice to Ground no.5,6 and 7, the learned Commissioner of Income Tax (Appeal) has erred in law and in facts in not accepting the claim of the appellant that statement recorded u/s 132(4) in search action of Rajendra Jain ought to be read in totality in respect of income from alleged commission that has already been included in sales transaction disclosed in audited accounts as admitted in the same statement, hence no further addition ought to be confirmed on account of alleged commission in the impugned assessment order. 9. The learned Commissioner of Income-Tax (Appeals) has erred in law and in facts in confirming the rejection of books of account of the appellant without appreciating the fact and law in proper perspective and without finding any defects in the books of accounts and overlooking the evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvolved in the case, the case requires to be covered with the provisions of section 153C of the Act. Therefore, a notice u/s 153C of the I.T. Act was issued to the assessee on 13.01.2015 and duly served upon the assessee. In response to the said notice, the assessee furnished copy of his original return of income (ROI) on 16.02.2015 declaring total income at Rs.3,82,260/-. The assessee has not offered any additional undisclosed income in the return of income filed in response to the notice u/s.153C of the Act. A notice u/s 143(2) was issued on 15.06.2015 and subsequently, a questionnaire and notices u/s 142(1) were issued to the assessee. 5. During the search, various evidences were collected, which explained inter alia, the modus operandi of the "business of providing accommodation entries in the nature of bogus sales and unsecured loans". During the search proceedings, it was established by evidences and statements of Shri Rajendra Jain, Surendra Jain, Shri Sanjay Choudhary and Shri Dharmichand Jain that there group concerns are: (i) Engaged in merely paper transaction, (ii) Engaged in import of rough & cut polished diamonds for other clients (who do not want to show in there bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds to local purchasers and show purchase of polish diamonds from them to square up the transaction. (v) On receipt of such cut and polished diamonds, they issue sale bills to various parties at the request of the actual importers. The actual importer arranges the sale proceeds from parties to whom sale bills were issued. Once the sale proceeds are received, these name lending concerns makes import remittance at the request of importer. 7. During the course of search and seizure action statement of Shri Sachin Pareek (Prop, of Arihant Exports, Director of Karnawat Impex Pvt. Ltd. and Moulimani Impex Pvt. Ltd., Shri Manish Sushil Jain (Prop, of Kalash Enterprises, Director of M/s. Kriya Impex Pvt. Ltd. and Karnawat Impex Pvt. Ltd.) and Shri Anoop Y. Jain (Prop, of Aadi Impex) have also been recorded on oath. All the above persons in their statement admitted that they were acting as per the directions of their bosses, namely, Shri Rajendra Jain and Shri Surendra Jain, for which they were getting salary. Hence, it is clear that concerns are totally controlled and managed by Shri Rajendra Jain and Shri Surendra Jain; and other directors/partners/proprietors are just name lenders who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as per books there was stock. Means no stock was found with any of the company/entity at any of the premises. This very fact points out and confirm all concerns of the group were indulged into the activities of providing paper entries and no factual business of Diamond was undertaken by them. 4. The search and survey teams also found that each of these concerns had email Ids and the backup of these e-mail messages also corroborates this modus operandi of the group in respect of giving entries of bogus purchases and unsecured loans. Evidences of actual importers -who used to procure diamonds through these concerns of the Group were also found from the e-mail correspondences. 5. From the above facts it is clear that your books of a/c is not correct, so you are requested to explain as to why the books should not be rejected u/s 145(3) of the Act and why the income calculated on the basis of commission actually received on various heads as per your statement given u/s 132(4)131 of the I.T. Act may not be taken." 9. Assesses has replied to the above show cause notice dated 22.12.2015 vide letter dated 28.12.2015, relevant portion of reply is reproduced below:- "In the above fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts. The section read as under: "145(1) Income Chargeable under the head "profit and gains of business or profession" or "income from other sources" shall, subject to the provisions of subsection (2), be computed in accordance with either cash or mercantile system of accounting regularly employed by the assessee. (2) The Central Government may notify in the Official Gazette from time to time accounting standards to be followed by any class of assesses or in respect of any class of income. (3) Where the Assessing Officer is not satisfied about the correctness of the accounts of the assessee, or where the method of accounting provided in subsection (1) or accounting standards as notified under sub section (2), have not been regularly followed by the assessee, the Assessing Officer may make an assessment in the manner provided in Section 144. Therefore, it is submitted that the income chargeable under the head "Profit and gains of business or profession" shall be determined in accordance with the method of accounting regularly employed by the assessee. Further, the books of accounts of the assessee should not be rejected unless the assessing officer is not satisfied with the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce that we meet our commitment for payment to them. This email ids do not prove that we procures diamonds on behalf of parties to whom we send message for timely payment of remittance to overseas party. Investigation wing did not find any actual importers who admitted that we have imported goods on their behalf. There is no other material /facts available on record to indicate that real importers are different than us. Even your good office has also verified from custom authority regarding import being made by us by collecting information u/s 133(6) of the Act. Therefore we pray that books of account u/s 145(3) can not be rejected on this ground also." 10. However, assessing officer rejected the contention of the assessee and observed that business premises as well as residential premises were covered during search & survey proceedings. During the search and survey proceedings Shri Rajendra Jain, Shri Surendra Jain alongwith their employees were asked to explain the nature of business functions, day to day affairs, role of theirs in business activity details of persons who were contacted for purchase/ import/ sale. All the employees (who are proprietor/partners/directors in many ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are as under: STOCK POSITION CHART Sr. No. Name of the assessee Stock as on date of search Rough Diamond Polished Diamond 1. Sparsh Exports Pvt. Ltd (Director Rajendra S Jain) Nil 64.40 2. M/s Sun Diam (Partner -Rajendra S Jain) 787.64 12.73 3. Kriya Impex Pvt Ltd (Director - Rajendra S Jain) Nil 14.24 4. Kalash Enterprise (Prop. Manish S Jain) Nil Nil 5. Aadi Impex (Prop. Anoop Y Jain) 184590.04 11.72 6. Arihant Exports (Prop. Sachin Pareek) 3778.87 8.0 7. Vitrag Jewels (Prop. Mudit Karnavat) Nil Nil 8. Karnavat Impex Pvt Ltd .(Director Rajendra S Jain) Nil 26.92 9. Mouliamani Impex Pvt Ltd. (Director Rajendra S Jain) Nil Nil 10. Rajendra S Jain (Prop. Avi Export) Nil 170.59 In order to validate the above modus operandi and to cross check the findings of the above search action, few beneficiaries were covered u/s 132 of the I.T. Act, 1961 on 05.05.2014, who had taken accommodation entries in the nature of bogus unsecured loans and bogus purchases from the group concerns of the assessee. (i) M/s R. Kantilal & Co. (R. Kantilal & Co. Group) (ii) M/s. A.S. Export (A.S. Export Group) (iii) M/s. S. Jogani Exports Pvt. Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid means. The second exception is where the statement has been given under some mistaken belief either of fact or of law. If he can show that the statement has been made on mistaken belief of facts, than the facts on the basis of which admission was made were incorrect. In the case of ACIT v/s Hukum Chand Jain [2010] 191 Taxman 319 (Chhattisgarh) Hon'ble High Court held that burden of proving that statement under section 132(4) was obtained by coercion or intimidation lies upon assessee. Proof of threat or coercion is necessary for valid retraction. The allegation that the assessee was tortured and harassed by the search team and was forced to make an admission is not enough [Manharlal Kasturchand Chokshi v. Asstt. CIT [1997] 61 ITD 55 (And.)]. The Mumbai Tribunal, in the case of Param Anand Builders (P.) Ltd. v. ITO [1996] 59 ITD 29, has held that allegations of torture and harassment were unacceptable when independent witnesses were present at the time of search. Mere filing of a letter retracting the statement was not held to be rebuttal of the presumption that what is admitted is true. The Tribunal's observations were also based on the fact that the 'Panchas' h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the department whether any spot verification or any physical verification is carried out by such authorities, on other hand proceedings u/s 132, collection of evidences and information's during the course of such proceedings as well as corroborative verification with parties, transactions undertaken by this assessee prove that no real business was being carried out by this assessee. Such finding of the department is past the event of any verification or issuance of VAT/ sales tax numbers, registration etc. by State Government or any other Authorities. In the light of all foregoing discussion, the assessing officer held that assessee is not doing actual business and earned only commission income on sales, import and loan entry on direction of Shri Rajendra S. Jain. Hence, based on these facts, the assessing officer held that books of account maintained by the assessee is not reliable and therefore rejected u/s 145(3) of the Income Tax Act, 1961 and order was being passed by assessing officer u/s 144 of I.T. Act on best judged assessment basis. It was also held by assessing officer that when assessee is doing import on behalf of client who is "not identified by the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... know? If yes, please explain as to how they do justice with the roles and responsibilities assigned to them by you. Ans. Sir, in fact, the proprietory concerns in the names of our employees are not independent business activity of their own. When I was working for Shri Ratanlal Jain, besides other concerns, he had been also operating through M/s Minar Gems, a proprietory concern in my name. So, after quitting the job, I took the idea of operating through various concerns including several proprietorship concerns in the names of our employees. In such a case. the effective control of business remains with us and the business income of such proprietorship concern get adjusted against the overall salary payable to such employee on annual basis. Q.26. Please gives the details of movable properties held by you or in the name of your family members. Ans. Sir. I have one Honda City car and one scooty. Q.27. Please give details of immovable property held by you or in the name of your family members. Ans. The details of immovable properties held by me and in the name of my family members are as under : Sr. No. Details Owner Area in sq. ft. Total cost in lacs and year of acqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income and issue of notice u/s 153C. Validity of assessment u/s 153C : 4. In ground no. 1, 2 and 3, assessee challenged the validity of the assessment made u/s 153C. The proceedings u/s 153C are initiated on the basis of the seizure of backup of the computer, mobile and 2 pen -drives in case of Rajendra Jain as narrated in satisfaction note. However, actually no such evidence was found in the course of search conducted in the case of Rajendra Jain belonging to assessee. This is because of the fact that this backup of computer and mobile data along with physical documents in the form of books of accounts were brought by Shri Sachin Pareek and it was not found in the course of search in case of Rajendra Jain. This is evident from the order passed u/s 132(3) on 06.10.2013 which is placed at page no. 355 of the paperbook. In this order it was mentioned that Shri Sachin Pareek brought books of accounts during the search action in case of Shri Rajendra Jain. The revenue has not brought on record any panchnama suggesting that computer, mobile phone and 2 pen-drives as mentioned in the satisfaction note were found in the course of search in case of Shri Rajendra Jain. Shri Rajendra Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the assessee, the proceedings u/s 153C can be taken if such books of accounts relates or pertains to assessee. It has been held by the courts that the amendment made u/s 153C w.e.f 01.06.2015, cannot be applied retrospectively. With effect from 01.10.2014, section 153C was amended and Assessing Officer should also be satisfied that the document seized have bearing on the total income of the assessee. In assessee's case the satisfaction note was recorded on 02.12.2014 and therefore this amendment is applicable. Accordingly, in the satisfaction note recorded u/s 153C, assessing officer should have spelled out that the materials recovered from third person belonged to the assessee and they had bearing on the total income of the assessee. No such satisfactions are discriminable from satisfaction note recorded u/s 153C. In the satisfaction note, it has not been stated that materials seized in the course of search of Rajendra Jain and Surendra Jain have bearing on the total income of the assessee. In the satisfaction note it was indicated that action u/s 153C was taken on the basis of the seizure of the backup of the computer, mobile & two pen drive in case of Shri Rajendra Jain and on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... * PCIT vs. Anand Kumar Jain [432 ITR 0384] (Del. HC) * CIT vs. Renu Constructions Pvt. Ltd. [99 taxmann.com 426] (Del. HC) * CIT vs. Harjeev Aggarwal [70 taxmann.com 95] (Del. HC) * PCIT vs. Allied Perfumes Pvt. Ltd. [124 taxmann.com 358] (Del. HC) * PCIT vs. Meeta Gutgutia [82 taxmann.com 287] (Del. HC) * PCIT vs. Index Securities Pvt. Ltd. [157 DTR 0020] (Del. HC) * Pepsico India Holdings Pvt. Ltd. vs ACIT [370 ITR 295] (Del. HC) * Pepsi Co. India Holding (P.). Ltd. v. ACIT [370 ITR 295] * CIT vs. Shri Ramdas Motor Transport [238 ITR 0177] (A.P. HC) * CIT vs. Naresh Kumar Agarwal [369 ITR 0171] (A.P. HC) * CIT vs. IBC Knowledge Park Pvt. Ltd. [385 ITR 346] (Kar. HC) * CIT vs. Arpit Land Pvt. Ltd. [78 taxmann.com 300] (Bom. HC) * Sri Sai Cashews vs. CCIT - [131 taxmann.com 177] (Orissa HC) * CIT vs. RRJ Securities Ltd. [380 ITR 612] (Del. HC) 9. In support of the above submissions the reliance is placed on the following decisions of courts : Discussion of the above case laws : * CIT vs. Singhad Technical Education Society [84 taxmann.com 290] (SC)- Where loose papers found and seized from residence of president of assessee, an educational institu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent framed under section 153A on basis of a standalone statement recorded under 132(4) without reference to any other material discovered during search and seizure operations is not sustainable. * CIT vs. Renu Constructions Pvt. Ltd. [99 taxmann.com 426](Del. HC) - Prior to 1-6-2015, at stage of initiation of proceedings under section 153C it was necessary to show that seized material 'belonged to' other person and not merely pertaining to such other person. * CIT vs. Harjeev Aggarwal [70 taxmann.com 95] (Del. HC) - A plain reading of section 158BB(1) does not contemplate computing of undisclosed income solely on the basis of a statement recorded during the search. The words 'evidence found as a result of search' would not take within its sweep statements recorded during search and seizure operations. However, the statements recorded would certainly constitute information and if such information is relatable to the evidence or material found during search, the same could certainly be used in evidence in any proceedings under the Act as expressly mandated by virtue of the Explanation to section 132(4). However, such statements on a standalone basis without refere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bullion, jewellery or other valuable article or thing or books of account or documents seized or requisitioned belongs or belong to a person other than the person referred to in section 153A...". In view of this phrase, it is necessary that before the provisions of section 153C can be invoked, the Assessing officer of the searched person must be satisfied that the seized material (which included documents) does not belong to the person referred to in section 153A, i.e., the searched person. In the satisfaction note, which is the subject matter of these writ petitions, there is nothing therein to indicate that the seized documents do not belong to the Jaipuria Group. This even apart from the fact that there is no disclaimer on the part of the Jaipuria Group insofar as these documents are concerned. * CIT vs. Shri Ramdas Motor Transport [238 ITR 0177](A.P. HC)- Since the Department could not find any unaccounted money, article or thing or incriminating document either at the premises of the company or at the residence of managing director or other directors the finding of the Tribunal that the statement of managing director recorded patently under s. 132(4) does not have any eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not made on the basis of incriminating documents but on the basis of the statement of Rajendra Jain. The materials indicated in the satisfaction note u/s 153C cannot be correlated with the addition made by the assessing officer. The email recovered doesn't specify the portion of the commission received by the assessee against alleged accommodation entry. The emails were not referred in the satisfaction note. Anyway, the email doesn't belong to the assessee. Accordingly, no addition can be made in case of unabated assessment in view of the following judgments of High Courts : * PCIT vs Saumya Construction [81 taxmann.com 292] (Guj HC) * PCIT vs. Star PVG Exports [112 taxmann.com 163]( Kar. HC ) * CIT vs Continental Warehousing Corporation (Nhava Sheva) Ltd [58 * CIT vs Kabul Chawla [93 CCH 0210] (Del HC) 11. In the case of assessment made u/s 153C or 153A, the addition cannot be made on the basis of statement recorded u/s 132(4). 12. As regards to ground no. 5 and 6, it is submitted that Shri Rajendra Jain retracted his statement recorded at the time of search. The retraction statement was filed on 31.10.2014 which was not rebutted till the passing of assessment order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jay Jewels Ltd. [ITA No. 1045/Mum/2016] * Prabhat Gupta vs. ITO [ITA No. 277/M/2017 & 797/M/2017] * Manoj Begani vs. ACIT [ITA No. 932, 933, 935, 936/Kol/2017] * M/s. M.B. Jewellers & Sons vs. DCIT [ITA No. 1/Kol/2017] Out of the above cases, in case of Manoj Begani vs. ACIT (supra) and M/s. M.B. Jewellers & Sons vs. DCIT (supra), the additions were made on the basis of statement of Shri Rajendra Jain. 14. As regards to ground no. 7 to 9, it is submitted that assessing officer has estimated commission income on the basis of the statement recorded u/s 132(4) in case of Rajendra Jain although no incriminating documents were found indicating the percentage of commission earned by the assessee in providing accommodation entries. Accordingly, no addition can be made on the basis of statement recorded u/s 132(4) particularly when the statement was subsequently retracted in view of decision of Gujarat High Court in case of CIT vs. Ramanbhai B. Patel [96 CCH 0495](Guj. HC) and Chetnaben J. Shah vs. ITO [79 taxmann.com 328](Guj. HC). Even otherwise, the statement has to be read as a whole and no pick and choose method can be adopted. The revenue cannot blow hot and cold water at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horities have observed that the assessee group has declared less commission income in providing accommodation entries as compared to Bhanwarlal Jain. However, the story is other way round as assessee declared more commission income as compared to Bhanwarlal Jain. The main difference is of commission on import which assessee declared at 0.2% while Bhanwarlal Jain declared commission income at 0.02%. Accordingly, assessee declared the commission income ten times than Bhanwarlal Jain and this fact is considerable as assessee's volume is much on imports compared to other items i.e. other items viz. loan. In case of Bhanwarlal Jain, the commission was estimated @ 1% for loan and in case of assessee it was taken @ 0.5% but this is having negligible effect as the loan outstanding in the case of the assessee is very less. Accordingly, Shri Bhanwarlal Jain declared commission on import after considering the expenses on import including Forex loss. Alternatively, it is submitted that the commission income @ 0.02% on import should be taken if expenses are allowed @ 25% as it was allowed in the case of Bhanwarlal Jain. 16. In the case of Bhanwarlal Jain, all the additions on account of commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the foreign concern from which imports were shown in the books. (v) Besides, books of various concerns, including of Aadi Impex whose proprietor is the appellant, which the Shri Rajendra Jain himself said were being run in the name of his employees/persons of his group were found in his control and he was clearly able to get them to his home during search through Sachin Pareek his accomplice and (vi) a pen drive containing accounts from various concerns including that of Aadi Impex run as proprietorship of Shri Anoop Y Jain (appellant and others where Shri Rajendra Jain as per ownership shown had no interest. All this prove that his admission was given when corroborative evidence was unearthed during the course of search. All these clinching and corroborative evidences along with the statements given during the search constitute incriminating evidence against the appellant. Even the appellant, Shri Anoop Y. Jain (part of statement reproduced by AO in para 5 of the assessment order), Shri Manish S Jain and Shri Sachin Pareek had accepted the entire modus operandi during the course of search in statement recorded u/s. 131 of the Act. In this case, therefore, there are ample incri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the diamonds was found at the time of search. The goods were given for approval to customers for sales. The assessing officer overlooked the entire documentary evidences. The Ld. AR for the assessee read over the written submissions filed before Ld. CIT(A). On merit the Ld. AR of the assessee submitted that the assessee was doing the real business and has shown business income while filing return of income. The ld AR for the assessee Rajendra Kumar Jain AY 2008-09 to 2014-15 IT(SS)A No. 294 to 299/SRT/2017 15 submits that Kolkata Tribunal in Manoj Begani Vs ACIT ( ITA No. 932,933,935 936/Kol/2017), which is case of beneficiary of the alleged accommodation entry from Rajendra Jain, deleted the entire additions. In other words the ld AR for the assessee impressed that the business model of Rajinder Jain was accepted as genuine. In alternative claim the assessee claimed that he has already included the commission income in his business income disclosed in his audited accounts. To support all his legal and factual submissions the ld AR for the assessee relied on the following case laws; CIT Vs Singhad Technical Education Society [(84 taxmann.com 290(SC)], CIT Vs Calc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of diamond was found from any of the business or residential premises of the assessee. The ld CIT-DR for the revenue further submits that while recording statement of the assessee, he was confronted with various emails extracted from his computers. The assessee clearly admitted that he was receiving commission on value of import at the rate of 0.2% from the Rajendra Kumar Jain AY 2008-09 to 2014-15 IT(SS)A No. 294 to 299/SRT/2017 17 real importer who route the transaction through his paper concern. It was also disclosed that on entry of unsecured loan, he received commission in the range of 0.25% to 0.5%. The AO on the basis of his statement, incriminating evidence found in the form of statement of account recovered from the pen drive and on post search inquiry the assessee was served with the notice under section 153A to file his return of income for assessment year under consideration. The assessee filed return of income in response to the notice under section 153A, however, no additional income was offered by the assessee, despite recovery of huge incriminating material. During assessment the assessee tried to impress that he has retracted his statement. The so called retractio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ekh proprietor of Arihant Export, director of Karnawat Impex Pvt Ltd & Moulimani Impex, Manish Jain (prop of Kalash Enterprises, Director of Kriya Impex Pvt Ltd and Rajendra Kumar Jain AY 2008-09 to 2014-15 IT(SS)A No. 294 to 299/SRT/2017 19 Karnawat Impex Pvt Ltd.) and Anoop Jain (Prop of Adi Impex) was recorded during search. The Assessing Officer (AO) on the basis of statement of Sachin Parikh, Manish Jain and Anoop Jain in wherein they admitted that all they were working on remuneration with Rajinder Kumar Jain (assessee). The AO also held that during recording statement of assessee, in Question No. 15, the assessee was asked to explain the modus operandi of his business. The AO prepared the diagram of modus operandi disclosed by the assessee. The AO on the basis of incriminating material gathered during the search action and on the basis of statement of Rajendra Jain and his associates held that all the business concerns of the assessee were merely doing paper transaction, instead of carrying any real business, those concern were doing of maintaining 'books of accounts' and do not carry any actual or physical business of diamonds. It was held by AO that the actual importers of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jain AY 2008-09 to 2014-15 IT(SS)A No. 294 to 299/SRT/2017 21 incriminating document recovered in search action. The ld CIT(A) noted that assessee is Director in various companies/partners in various firms and also proprietor of a firm, the business of all firms and companies are controlled by the assessee. During the search no physical stock of diamonds was found, there were numerous e-mails including some e-mail found and seized during search clearly proved that the real beneficiary of importer of diamonds were different then the books, there were also e-mails which prove that the person wanting accommodation entry were approaching the assessee and his group, the correspondence of orders were found not placed by the assessee and his group to the foreign parties. Besides, books of account of various concerns was maintained by assessee, which the assessee himself said being run by him in the name of various persons, which he able to get them to his residence from Surat, during the search though Sachin Parikh, who is his accomplice. A pen drive containing accounts from various concerns including those where Rajendra Jain as per ownership had no interest was also provided by the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce against the assessee. We further noted the assessee in his retraction statement has not explained the material evidence found in the form of e-mail, from his e-mail account, his background history as to how he entered in the this particular business of providing entry, which he himself disclosed during the search action that he learnt all this business module of providing accommodation entry from his ex-employer namely Ratanlal Jain. The said retraction is filed for the first time before AO after gap of 12 months period. The reliance in case Manoj Begani Vs ACIT (supra), passed by Kolkata Tribunal which is case of beneficiary of the alleged accommodation entry from Rajendra Jain, is not helpful to the assessee. Here in the present case, there is clear admissions of the assessee about the entire business affair carried out by him with his associate for providing bogus entry, mere obitor in case of beneficiary by the Coordinate bench, will not absolve the assessee from his own admission. The finding of Tribunal in Manoj Begani vs. ACIT(supra) is based on the facts and evidences produced by that assessee. Therefore, in view of the abovesaid discussions, we are in full agreement wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und No. 3 to 5, therefore, needs no further adjudication. In the result all the grounds of appeal raised by the assessee are rejected. 19. In the result, the appeal of the assessee for AY 2008-09 in ITA No. 294/SRT/2021 is dismissed. 20. Considering the fact that we have dismissed the appeal for AY 2008-09, the remaining appeals for AY 2009-10 to 2014-15, are also dismissed with similar observation. No order as to cost." 18. As the issue is squarely covered against the assessee by the decision of the Division Bench, in the case of Shri Rajendra Sohan Lal Jain (supra) and there is no change in facts and law and the ld Counsel is unable to produce any material to controvert the aforesaid findings of the Division Bench (supra). We find no reason to interfere in the said order of the Division Bench, therefore, respectfully following the judgment of the Division Bench, we dismiss the appeal of the assessee. 19. We have adjudicated the issue by taking lead case in IT(SS)A No. 347/AHD/2017, for assessment year 2009-10. The facts and grounds of appeals are identical and similar in case of other appeals. Accordingly, our observations made in IT(SS)A No. 347/AHD/2017, for assessment year ..... X X X X Extracts X X X X X X X X Extracts X X X X
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