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Mastech Technologies Pvt. Ltd Vs. Dy. Commissioner Of Income Tax
July, 18th 2017
$~
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

2
+               W.P.(C) 2858/2016 & C.M. APPL.11983/2016
MASTECH TECHNOLOGIES PVT. LTD                   ...Petitioner
            Through : Mr. Ajay Wadhwa and Mr. Sameep Gupta,
            Advocates.
                          versus
DY. COMMISSIONER OF INCOME TAX                ...Respondent
              Through: Mr. Rahul Chaudhary, Senior Standing
              Counsel.
     CORAM:
     JUSTICE S.MURALIDHAR
     JUSTICE PRATHIBA M. SINGH

                           ORDER
%                          13.07.2017
Dr. S. Muralidhar, J.:
Introduction
1. This petition by Mastech Technologies Pvt. Ltd. challenges two notices
dated 23rd March, 2015 and 18th January, 2016 issued to it under Section 148
of the Income Tax Act, 1961 (`the Act') by the Deputy Commissioner of
Income Tax, Circle 16(2) [hereinafter referred to as the Assessing Officer
(AO)] as well as the order dated 21st March, 2016 rejecting the objections
filed by the Petitioner.

2. When this petition was heard on 1st April 2016, while directing issuance
of notice to the Respondent, this Court directed that "t ill the next date of
hearing, the assessment proceedings may go but no order shall be passed and
in the event an order has already been passed, it will be subject to the

W.P.(C) 2858/2016                                                 Page 1 of 16
outcome of this writ petition". The Court is informed that in fact on 30th
March 2016, an assessment order was passed by the AO pursuant to the
reopening of the assessment under Section 148 of the Act against the
Petitioner making the additions as proposed. However, in terms of the
interim order passed by this Court, the said order has not been given effect
to.

3. It may further be mentioned that during the course of hearing of the
present petition on 7th December 2016, the original file concerning the
reopening of the assessment was brought before the Court by learned
counsel for the Respondent. The Court recorded his statement that "there are
other parts of the file which are currently not available." The Court then
directed that the record produced on that date to be kept in a sealed cover by
the Court.

4. Today, Mr Rahul Chaudhary, learned Senior Standing Counsel for the
Revenue, informed the Court no other part of the file is available with the
Department. The Court perused the file kept in the sealed cover and returned
it to Mr Chaudhary.

Background facts
5. The background facts are that the Petitioner filed its return of income for
the Assessment Year (`AY') 2008-09 on 28th September, 2008 declaring
loss of (-) Rs.6,10,314. The return was processed under Section 143(1) of
the Act and an intimation was sent to the Petitioner.

6. Thereafter, on 18th January 2016, the AO issued a notice to the Petitioner

W.P.(C) 2858/2016                                                  Page 2 of 16
under Section 148 of the Act in which he stated as under:
        "Whereas I have reason to believe that your income in respect of
        which you are assessable to tax for the Assessment Year 2008-09, has
        escaped assessment within the meaning of Section 147 of the Income
        Tax Act, 1961, I, therefore, propose to re-assess/re-compute the
        income for the said Assessment Year. I hereby require you to deliver
        to me within 10 days from the date of service of this notice, a return in
        the prescribed form of your income/the income of the company in
        respect of which you are assessable for the said Assessment Year."

7. Thereafter, three distinct events took place nearly one month later on 16 th
February, 2016. On that date, the Petitioner wrote to the AO though its
Chartered Accountant (CA) in which it was stated that the original return
filed under Section 139 (1) of the Act should be treated as the return filed
under Section 148 of the Act. A request was made to provide to the
Petitioner with the 'reasons to believe' for reopening the assessment under
Section 148 of the Act.

8.1 Simultaneously, on the same date i.e. 16th February 2016, two notices
were sent to the Petitioner by the AO. One notice was titled as "notice under
Section 142(1)" of the Act. By this notice, the Assessee was asked to furnish
complete details as per Annexure-A to the notice. The said Annexure-A was
also in the form of a letter addressed to the Petitioner dated 16 th February,
2016.

8.2 The subject matter of the said letter reads: "Proceedings u/s. 148/147 for
AY 2008- 2009- show cause notice - Reg." This Annexure- A runs into 16
pages. It sets out in detail the background of the incorporation of the
Assessee, the details of its directors, filing of its return on 28 th September,

W.P.(C) 2858/2016                                                     Page 3 of 16
2008. Thereafter, it states that the information was received from the
Investigation Wing and the return of income was scrutinized. It was found
that during the year under consideration, the share capital of the loan of the
Assessee had increased to the extent as provided in the information of the
investigation.






8.3 In paras 6 to 10 "the details of information received regarding
escapement of income" are set out. It essentially states that search was
conducted against entry operator S.K. Jain and his group. The investigation
wing on a detailed enquiry into the working of S.K. Jain Group concluded
that S.K. Jain and his group and Virendra Kumar Jain were accommodation
entry providers. The modus operandi adopted by them was set out in paras
11 to 18. All that was gathered during the investigation qua the operation of
S.K. Jain and his brother Virendra Kumar Jain is set out. The details of the
bank accounts of the S.J. Jain Group companies were set out.

8.4 In paras 19 to 21 the "summary of evidence relating to the Assessee" is
set out. There is a reference to Annexure- A recovered during the search
which enclosed the copies of various documents seized from the premises of
S.K. Group along with the report. It was stated that " the Assessee appears to
have taken accommodation entry amounting to Rs.1.35 crores "credit from
various companies controlled by S.K. Jain Group through intermediary
(A.K. Jain)...."

8.5 In paras 20 to 22, the details of the assessment proceedings and the order
of the CIT(A) in relation to Virendra Kumar Jain are set out. Paras 24 to 28
set out the conclusion. The analysis is set out in par 23 and the conclusion in
W.P.(C) 2858/2016                                                   Page 4 of 16
para 25 that a sum of Rs.1.35 crores "unexplained credit under Section 68 of
the Act in books of A/c of the Assessee."

8.6 In para 26, it was stated that the Assessee had obtained share capital
from "M/s Shalini Holdings Ltd. which was a company controlled by S.K.
Jain Group and that the transaction in question have also failed to pass the
test of creditworthiness of creditor since the company was dummy company
and that since the entries had been created "to create web of transaction to
camouflage the true nature of transaction." In para 26, the Assessee was
asked to show cause why the sum of Rs. 1.35 crores received by it during
A.Y. 2008-2009 should not be treated as unexplained credit under Section
68 of the Act.

8.7 Further, in para 27 the Assessee was asked to show cause why
Rs.2,43,000/- representing commission paid at the rate of 1.8% as discussed
in Para 22.1 of the notice should not be treated as unexplained investment to
procure these accommodation entries. The Assessee was asked to furnish its
reply to the AO by 24th February, 2016.

9. On 16th February 2016 itself, a notice under Section 143 (3) of the Act
was issued by the AO to the Assessee stating that there were certain points
in connection "with the return of income submitted by you on 28th
September, 2008 for the assessment year 2008-09 on which I would like
some further information." Interestingly, this notice shows that this was a
"proceeding under Section 148 of the IT Act for the AY 2008-2009" The
Assessee was asked to attend the office of the AO on 23rd February 2016 at
11:10 am.
W.P.(C) 2858/2016                                                 Page 5 of 16
10 One week later on 23rd February, 2016, the AO wrote to the Assessee
with reference to the request made by its letter dated 16 th February, 2016.
The said letter reads as under:
       "Kindly refer to the above mentioned subject.

       The reason recorded for re-opening of assessment for the AY 2008 ­
       2009 as under:
             "It has been gathered that you have received accommodation
             entries of Rs.1,35,00,000 during the year under consideration."

11. The Assessee through its CA submitted its objections dated 7 th March,
2016 to the reopening of the assessment. It was inter alia pointed out that the
reasons as communicated to the Assessee were without any particulars and
without disclosing the material on the basis of which the conclusion that the
Assessee's income had escaped assessment was reached. Inter alia, the
Assessee pointed out as under:
       "1. The reason do not reflect any application of mind for reopening of
       assessment. There is no material mentioned on the basis of which the
       assessment has been sought to be reopened. Your good self has
       merely stated that it has been gathered that the accommodation entries
       of Rs. 1,35,00,000/- were received during the year under reference.
       How was the information gathered? What is the source of
       information?

       Even the information is incomplete, vague and does not inspire any
       confidence. It appears to be a mere allegation and nothing beyond
       that.

       2. It is well settled law that the reasons to believe must reflect a prima
       facie view based on material available. The reasons must show that
       the material has been received from a credible source and that
       material leads to a prima facie conclusion that income has escaped

W.P.(C) 2858/2016                                                     Page 6 of 16
       assessment. As per reasons cited by you, there is no mention of what
       are the entries alleged to be accommodation in nature. Who have they
       been received from? Is there any statement or allegation by the person
       who is claimed to have given accommodation entries? What are the
       accommodation entries and what are their particulars and how have
       they been treated by the assessee in its books of accounts?"

12. By a letter dated 21st March, 2016, the AO informed the Assessee that its
objections to the reopening of the Assessment had been rejected. Thereafter,
the present writ petition was filed and as mentioned hereinbefore an interim
order was passed on 1st April, 2016 and on that date, as already noted, the
AO issued the assessment order pursuant to reassessment proceedings under
Section 147/148 of the Act read with Section 143(3) of the Act.

The file of the Department
13.It must be mentioned at this stage that when the file was produced before
the Court it contained the order sheet which begins with the dated of 18 th
January, 2016. Although the file contained the original "form of record, the
reasons for initiating proceedings" under Section 148 of the Act prepared by
the AO on 17th March, 2015 with the endorsement in Column No.12 of the
Additional Commissioner of Income Tax granting his approval to the
reopening of 19th March, 2015, no noting for this action was found on the
file. This is of some significance as will be explained hereafter.

14. In Column no.11 of this form against the caption "reasons for believing
that income has escaped assessment" it is stated "as per Annexure -A
attached." Annexure- A to this form sets out "reasons for issuing a notice
under Section 148(2) of the Act in case of the Assessee." The reasons read
as under:
W.P.(C) 2858/2016                                                    Page 7 of 16
       "In the case of assessee company M/s Mastech Technologies Pvt.
       Ltd., information has been received from Director of Income Tax
       (Investigation)-II, New Delhi vide letter dated 12th March 2013 that
       the Assessee namely M/s Mastech Technologies Pvt. Ltd. had
       received accommodation entry amounting to Rs.1,35,00,000/- during
       the FY 2007 ­ 2008 relevant to AY 2008 ­ 2009. This information
       came to the notice of the Investigation Wing during the course of
       search in the case of Shri Surender Kumar Jain Group of cases (Entry
       Operator) which is as under:

S.No. Name of the Amount             Cheque Date           Bank     Name of the
      beneficiary                    / DD                  Detail   company used
                                     No.                            for providing
                                                                    accommodation
                                                                    entry
1       Mastech        34,00,000     080504   26.04.2007 UTI        Shalini
        Technologies                                                Holdings Ltd.
        Pvt. Ltd
2       Mastech        20,00,000     080682   07.05.2007 UTI        Shalini
        Technologies                                                Holdings Ltd.
        Pvt. Ltd
3       Mastech        15, 00,000    080562   16.05.2007 UTI        Shalini
        Technologies                                                Holdings Ltd.
        Pvt. Ltd
4       Mastech        15, 00,000    080564   21.05.2007 UTI        Shalini
        Technologies                                                Holdings Ltd.
        Pvt. Ltd
5       Mastech        15,00,000     080569   05.06.2007 UTI        Shalini
        Technologies                                                Holdings Ltd.
        Pvt. Ltd
6       Mastech        24,00,000     081321   11.10.2007   Axis     Shalini
        Technologies                                       Bank     Holdings Ltd.
        Pvt. Ltd
7       Mastech        12, 00,000    190248   14.01.2008 Axis       Shalini
        Technologies                                     Bank       Holdings Ltd.
        Pvt. Ltd
        Total          1,35,00,000


There was thus failure on the part of the assessee to disclose fully and truly
all material facts necessary for assessment for AY 2008 ­ 2009 which
resulted into escapement of income of Rs.1,35,00,000/- for assessment year
W.P.(C) 2858/2016                                                      Page 8 of 16
2008- 2009. In view of this, I have reasons to believe that the Income of
Rs.1,35,00,000/- chargeable to tax has escaped assessment in the case of M/s
Mastech Technologies Pvt. Ltd. for the AY 2008 ­ 2009 within the meaning
of section 147 of the Income Tax Act, 1961. Therefore, I am satisfied that it
is fit case to be reopened under Section 147 of the Income Tax Act by issue
notice under Section 148"

15. It is a matter of fact that the aforementioned reasons in Annexure-A
together with form in which the approval of the Additional CIT was
recorded had in fact not communicated to the Assessee by the AO pursuant
to the request made by it by its letter dated 16th February, 2016. The only
reason conveyed to the Assessee was that set out by letter dated 23rd
February, 2016 written by the AO to the Assessee, which is one single line
which has been extracted hereinbefore.

Submissions of counsel for the Petitioner
16. Mr. Ajay Wadhwa, learned counsel appearing for the Petitioner, made
two broad submissions:

(i) A second notice under Section 148(1) of the Act could not have been
issued to the Petitioner when no action was taken pursuant to the first notice
issued on 23rd March, 2015. Reliance was placed on the decision of High
Court of Gujarat in Aditya Medisales Ltd. v. Deputy Commissioner of
Income-tax, Circle 1(1) [2016] 73 taxmann.com 197 (Gujarat).

(ii) The reasons for reopening of assessment as contained in the form with
Annexure- A thereto were never communicated to the Petitioner. All that
was communicated was a single line which did not set out the particulars or
the materials on the basis of which the reasons to believe arrived at by the

W.P.(C) 2858/2016                                                  Page 9 of 16
AO. There was no tangible material on the basis of which such reasons to
believe was formed prior to issuing of notice under Section 148 of the Act.

17. Mr Wadhwa further pointed out that it was only after the disposal of the
objections of the Petitioner to the reopening of the assessment, could the re-
assessment proceedings have being continued. He submitted that notices
issued on 16th February, 2016 under Section 142(1) of the Act and 143(2) of
the Act by the AO, which purportedly set out the reasons for reopening of
the assessment were not in fact sent pursuant to the request made by the
Petitioner for being provided the reasons for the reopening of the
assessment. Both these notices therefore, according to Mr Wadhwa, were
invalid. He pointed out that the said fresh notice, in any event, did not
contain the Annexure-A to the Form in which the approval was granted to
the reopening of the assessment by the Additional CIT on 19 th March, 2015.
Therefore, there was failure to comply with the mandatory requirement of
Section 148 of the Act inasmuch as the reasons for reopening of the
assessment were not communicated to the Petitioner. Mr Wadhwa pointed
out that the second reopening of the assessment under Section 148 of the Act
by issuing a second notice on 18th January, 2016, was clearly without
approval of the Additional CIT and was, in any event, barred by limitation.

Submissions of counsel for the Revenue
18. Countering the above submissions, Mr Rahul Chaudhary, learned Senior
Standing Counsel appearing for the Revenue, submitted that on the strength
of Section 129 (1) of the Act, the AO had merely continued the proceedings
under Section 148 of the Act which were initiated by issuance of the notice

W.P.(C) 2858/2016                                                  Page 10 of 16
dated 23rd March, 2015. The Revenue's case, in other words, is that the
notice dated 18th January, 2016 did not constitute an initiation of fresh
proceedings under Section 148 of the Act.

19. Mr Chaudhary further submitted that on the face of it the notice dated
18th January, 2016 could not be treated as initiation of proceedings under
Section 148 of the Act since it had no approval of the Additional CIT. In any
event, the reopening of the assessment as on that date was time-barred. He
submitted that even if the second notice dated 18th January, 2016 is treated
as non est for the aforementioned reasons, the reopening of the assessment
made on 23rd May, 2015 under Section 148 of the Act remained valid. It was
within time and done with the approval of the Additional CIT and the
reasons for reopening were clearly recorded on the file.

20. Further, according to Mr Chaudhary although the Petitioner was not
furnished the reasons as contained in Annexure-A to the proforma in which
the approval to the reopening was obtained from the Additional CIT on 19 th
March 2015, the reasons were elaborated in Annexure-A to the notice under
Section 142(1) of the Act issued by the AO to the Petitioner on 16th
February, 2016. He submitted that both the notices under Section 142(1) and
143(2) of the Act dated 16th February, 2016 expressly made a reference to
Section 148 of the Act. Therefore, it was obvious that these proceedings
were in continuation of the proceedings under Section 148 of the Act which
commenced with the notice dated 23rd March, 2015. He submitted that mere
absence of any note on the file relating to the initial reopening of the
assessment by the AO who replaced the earlier AO would not affect the

W.P.(C) 2858/2016                                                 Page 11 of 16
validity of the proceedings. He submitted that the decision of Gujarat High
Court in Aditya Medisales Ltd. v. Deputy Commissioner of Income-tax,
Circle (supra) was distinguishable on facts and was of no help to the
Petitioner.

Analysis and reasons
21. Having considered the above submissions and having perused the file
produced before the Court by the Revenue, the Court satisfied that the
present case has too many procedural lapses which cannot possibly be
sustained as mere irregularities.

22. To begin with, it appears to the Court that for reasons which are not
clear, the Revenue did not pursue the notice dated 23rd March, 2015 issued
to the Petitioner under Section 148 of the Act. An attempt was made by Mr
Rahul Chaudhary to suggest that since the AO who issued the said notice
was replaced by another AO, the said notice was not pursued. He, however,
insisted that under Section 129 of the Act it was possible to continue
proceedings which commenced with the notice dated 23rd March, 2015 and
that was in fact what was done on 18th January, 2016 when the second notice
was issued by the incumbent AO.






23. A careful perusal of the notice dated 18th January, 2016 reveals that it
does not state anywhere that it is in continuation of the earlier notice dated
23rd March, 2015. There is no noting even on the file made by the AO that
while issuing the said notice he was proposing to continue the proceedings
that already commenced with the notice dated 23rd March, 2015. Annexure-
A to the notice under Section 142(1) of the Act reveals what weighed with
W.P.(C) 2858/2016                                                  Page 12 of 16
the AO when he issued the said notice dated 18 th January, 2016. In this
document with the sub-heading "proceedings u/s 148/147 of the Act for AY
2008-2009, show cause notice - reg." the AO states as under:
       "Please refer to re-assessment proceedings u/s. 147/148 of Income-tax
       Act, 1961 pending against you for A.Y. 2008-09. A notice u/s. 148 of
       the Act was issued initiating the proceedings vide notice dated
       18.01.2016 served upon you through speed post after duly recording
       the reasons for reopening the same u/s. 148. The case has been re-
       opened u/s. 148 of the Act on account of there being a reason to
       believe that at least an amount of Rs. 1,35,00,000 has escaped
       assessment for A.Y. 2008-09. A copy of the reasons for reopening the
       case is being supplied to you alongwith (sic herewith)." (emphasis
       supplied)

24. It is plain from the above paragraph that according to the AO, the notice
dated 18th January 2016 under Section 148 of the Act was issued `initiating'
afresh the proceedings. It was not merely in continuation of the earlier
proceedings that commenced with the notice dated 23rd March, 2015.

25. Although the facts of the present case are different from those in the case
before the Gujarat High Court in Aditya Medisales Ltd. v. Deputy
Commissioner of Income-tax, Circle (supra), it is evident that the entire
proceedings under Section 148 of the Act stood vitiated since even
according to the AO, he initiated proceedings on 18th January, 2016 on
which date such initiation was clearly time barred. Secondly, the fresh
initiation did not have the approval of the Additional CIT, as required by
law.

26. Consequently, on this ground itself the Assessee is entitled to succeed
and all proceedings pursuant to the notice dated 18th January, 2016 cannot be

W.P.(C) 2858/2016                                                   Page 13 of 16
sustained in law.

27. The second problem is in the manner in which the AO has proceeded.
The AO has indeed followed a very strange procedure. As already noticed,
the reasons that he furnished the Petitioner by the letter dated 23rd February,
2016 contained only one sentence. For some reasons, the AO did not
provide the Petitioner the reasons recorded in Annexure-A to the proforma
which contained the approval of the Additional CIT dated 19th March, 2015.
Also, clearly, these were not the reasons for reopening of the assessment on
18th January, 2016. Perhaps for that reasons what was communicated to the
Assessee on 23rd February, 2016 was a single line which did not have the
approval of the Additional CIT.

28. It is not possible to accept the plea of Mr Chaudhary that the Court
should proceed as if the second notice dated 18th January, 2016 does not
exist. The fact that the said notice was issued by the AO initiating
proceedings under Section 148 of the Act is plain from the Annexure-A
dated 16th February, 2016 enclosed with the notice under Section 142 (1) of
the Act. That being the position, the legal consequences of such action have
to follow. Mr Chaudhary's submission that in the absence of any approval
granted to the issuance of notice dated 18th January, 2016 by the Additional
CIT and with the said notice being time barred, it should not be taken to
have been issued at all, is unacceptable.

29. The Court has not been provided with any satisfactory explanation as to
why the notice dated 23rd March, 2015 issued by the AO under Section 148
of the Act was not carried to its logical end. The mere fact that the AO who
W.P.(C) 2858/2016                                                   Page 14 of 16
issued that notice was replaced by another AO can hardly be the justification
for not proceeding in the matter. On the other hand, the AO did not seek to
proceed under Section 129 of the Act but to proceed de novo under Section
148 of the Act. This was a serious error which cannot be accepted to be a
mere irregularity.

30. As regards the non-communication of the reasons as contained in
Annexure-A to the proforma on which the approval dated 19th March, 2015
was granted by the Additional CIT, there is again no satisfactory
explanation. The fact remains that what was communicated to the Petitioner
on 23rd February, 2016 was only one line without any supporting material.
There appears to be also no clarity of how the case had to be proceeded with
by the Revenue. On one date i.e. 16th February 2016, the AO was issuing
notice both under Section 142(1) of the Act as well as notice under Section
143(2) of the Act when on that very date the Petitioner had asked for the
reasons for reopening by notice dated 18th January, 2016. Again, it is not
clear why the AO did not wait for the process of supplying reasons to the
Petitioner, considering the Petitioner's objections thereto and passing a
reasoned order thereon to be completed before issuing the notice under
Section 142(1) and 143(2) of the Act. There appears to be non-application of
mind by the AO to the legal requirement.

31. Consequently, the Court noticed that there are numerous legal infirmities
which leads to inevitable invalidation of all the proceedings that took place
pursuant to the notice issued to the Petitioner first on 23rd March, 2015 and
then again on 18th January, 2016 under Section 148 of the Act. Interestingly,

W.P.(C) 2858/2016                                                 Page 15 of 16
even in the assessment order issued on 30th March, 2016, the AO failed to
acknowledge that a fresh notice was issued to the Assessee on 18th January,
2016 and that the Assessee was never communicated the reasons for the
reopening as contained in Annexure ­ A to the form in which the Additional
CIT gave his approval on 19th March, 2015.

Conclusion
32. For all of the aforementioned reasons, the notices dated 23rd March,
2015 and 18th January, 2016 - both under Section 148 of the Act and all
consequential proceedings including the assessment order dated 30 th March,
2016 are hereby set aside.

33. The petition is accordingly allowed in the above terms but in the
circumstances no orders as to costs.



                                                     S.MURALIDHAR, J



                                              PRATHIBA M. SINGH, J
JULY 13, 2017/rd




W.P.(C) 2858/2016                                               Page 16 of 16

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