Shri Mayur Agarwal, Prop. Mayur TradingCo., Gwalior v. ITO 2(2), Gwalior

CO 45/AGR/2007 | misc
Pronouncement Date: 13-04-2010 | Result: Partly Allowed

Appeal Details

RSA Number 4520323 RSA 2007
Assessee PAN AGFPA9799R
Bench Agra
Appeal Number CO 45/AGR/2007
Duration Of Justice 2 year(s) 6 month(s) 15 day(s)
Appellant Shri Mayur Agarwal, Prop. Mayur TradingCo., Gwalior
Respondent ITO 2(2), Gwalior
Appeal Type Cross Objection
Pronouncement Date 13-04-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted Not Allotted
Tribunal Order Date 13-04-2010
Date Of Final Hearing 13-04-2010
Next Hearing Date 13-04-2010
Assessment Year misc
Appeal Filed On 28-09-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH AGRA BEFORE SHRI R.K. GUPTA JUDICIAL MEMBER AND SHRI P.K. BANSAL ACCOUNTANT MEMBER ITA NO.86/AGR./2007 ASST. YEAR: 2003-04 INCOME-TAX OFFICER WARD 2(2) VS. SHRI MAYUR AG ARWAL GWALIOR. PROP. M/S MAYUR TRADING CO. KHATKE SAHAB KA BADA DAL BAZAR GWALIOR. (PAN : AGFPA 9799 R) C.O. NO.45/AGR/2007 (IN ITA NO.86/AGR./2007) ASST. YEAR: 2003-04 SHRI MAYUR AGARWAL VS. INCOME-TAX OFFICER WA RD 2(2) PROP. M/S MAYUR TRADING CO. GWALIOR. KHATKE SAHAB KA BADA DAL BAZAR GWALIOR. (PAN : AGFPA 9799 R) (APPELLANTS) (RESPONDENTS) REVENUE BY : SHRI S.R. SAHU JR. D.R. ASSESSEE BY : SHRI NAVIN GARGH ADVOCATE ORDER PER P.K. BANSAL A.M.: IN THIS CASE THE DIFFERENCE AROSE BETWEEN THE MEMBE RS OF THE DIVISION BENCH HEARING THIS APPEAL. THEREFORE THE MATTER WAS REFERRED TO THE OPINION OF THE LD. THIRD MEMBER. THE LD. THIRD MEMBER HAS AGREED WITH THE VIEW TAKEN BY THE LD. JU DICIAL MEMBER SO FAR AS THE DELETION OF THE CASH CREDIT OF RS.2 00 000/- AND UNRECORDED INVESTM ENTS OF RS.85 205/- ARE CONCERNED. 2 2. IN THE RESULT APPEAL OF THE REVENUE IS DISMISSE D AND THE C.O. FILED BY THE ASSESSEE IS PARTLY ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 13.04.2010) . SD/- SD/- (R.K. GUPTA) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: AGRA DATE: 13 TH APRIL 2010. PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR ITAT AGRA BENCH AGRA 6. GUARD FILE ASSIST ANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL AGRA TRUE COPY 3 IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH AGRA BEFORE SHRI P.K. BANSAL ACCOUNTANT MEMBER (AS THIRD MEMBER) ITA NO.86/AGR./2007 ASST. YEAR: 2003-04 INCOME-TAX OFFICER WARD 2(2) VS. SHRI MAYUR AG ARWAL GWALIOR. PROP. M/S MAYUR TRADING CO. KHATKE SAHAB KA BADA DAL BAZAR GWALIOR. (PAN : AGFPA 9799 R) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI DEEPAK TIWARI SR. D.R. RESPONDENT BY: SHRI NAVIN GARGH ADVOCATE CORRIGENDUM IN THE ORDER DATED 4 TH JANUARY 2010 IN ITA NO.86/AGR./2007 PASSED BY THE THIRD MEMBER INADVERTENTLY IN THE TITLE THE CROSS OBJE CTION FILED BY THE ASSESSEE ARISING OUT OF THE SAME APPEAL WAS NOT MENTIONED. THEREFORE THIS COR RIGENDUM IS BEING ISSUED TO REMOVE THAT OMISSION. THE TITLE OF THE SAID ORDER SHALL BE REA D AS UNDER :- IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH AGRA BEFORE SHRI P.K. BANSAL ACCOUNTANT MEMBER (AS THIRD MEMBER) ITA NO.86/AGR./2007 ASST. YEAR: 2003-04 INCOME-TAX OFFICER WARD 2(2) VS. SHRI MAYUR AGA RWAL GWALIOR. PROP. M/S MAYUR TRADING CO. KHATKE SAHAB KA BADA DAL BAZAR GWALIOR. (PAN : AGFPA 9799 R) 4 C.O. NO.45/AGR/2007 (IN ITA NO.86/AGR./2007) ASST. YEAR: 2003-04 SHRI MAYUR AGARWAL VS. INCOME-TAX OFFICER WA RD 2(2) PROP. M/S MAYUR TRADING CO. GWALIOR. KHATKE SAHAB KA BADA DAL BAZAR GWALIOR. (PAN : AGFPA 9799 R) (APPELLANTS) (RESPONDENTS) SD/- (P.K. BANSAL) ACCOUNTANT MEMBER PLACE: AGRA DATE: 13 TH APRIL 2010 PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR ITAT AGRA BENCH AGRA 6. GUARD FILE ASSIS TANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL AGRA TRUE COPY 5 IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH AGRA BEFORE SHRI P.K. BANSAL ACCOUNTANT MEMBER (AS THIRD MEMBER) ITA NO.86/AGR./2007 ASST. YEAR: 2003-04 INCOME-TAX OFFICER WARD 2(2) VS. SHRI MAYUR AG ARWAL GWALIOR. PROP. M/S MAYUR TRADING CO. KHATKE SAHAB KA BADA DAL BAZAR GWALIOR. (PAN : AGFPA 9799 R) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI DEEPAK TIWARI SR. D.R. RESPONDENT BY: SHRI NAVIN GARGH ADVOCATE ORDER I HAVE BEEN NOMINATED BY THE HONBLE PRESIDENT TO E XPRESS MY OPINION ON THE FOLLOWING POINTS OF DIFFERENCE BETWEEN THE LD. JUDICIAL MEMBE R AND THE LD. ACCOUNTANT MEMBER REFERRED TO UNDER SECTION 255(4) OF THE INCOME-TAX ACT 1961 (THE ACT HEREINAFTER) :- (I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND FACTS IN DELE TING THE ADDITION OF RS.2 00 000/- ON ACCOUNT OF CASH CREDITS. (II) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND FACT IN DELETIN G THE ADDITION OF RS.85 205/- ON ACCOUNT OF UNRECORDED INVESTMENTS FOR PURCHASE O F GOODS. 2. THOUGH BOTH THE LD. MEMBERS HAVE STATED THE BRIE F FACTS IN RESPECT OF THE ISSUE INVOLVED BUT AT THE COST OF REPETITION THE BRIEF FACTS ARE STATED TO MEET THE CONTROVERSY MORE CLEAR. THE FACTS RELATING TO THE ISSUE NO.1 WHICH RELATE TO TH E DELETION OF THE ADDITION OF RS.2 00 000/- ON ACCOUNT OF CASH CREDITS ARE THAT THE ASSESSEE IS EN GAGED IN THE BUSINESS OF TRADING OF PULSES. THE A.O. DURING THE COURSE OF ASSESSMENT PROCEEDINGS V IDE LETTER DATED 17.03.2002 REQUIRED THE 6 ASSESSEE TO FURNISH THE DETAILS OF THE CREDITORS B ILLS/VOUCHERS OF EXPENSES DETAILS OF BANK ACCOUNT QUANTITATIVE DETAILS OF INVENTORY OF CLOSI NG STOCK. THE ASSESSEE IN REPLY THERETO PRODUCED THE BOOKS OF ACCOUNTS WHICH WERE TEST CHEC KED ALONGWITH THE DETAILS OF THE CREDITORS AND SQUARED UP CREDITORS. THE ASSESSEE COULD NOT P RODUCE THE CREDITORS BUT MADE REQUEST TO THE A.O. TO ISSUE SUMMONS TO THE CREDITORS. THE A.O. I SSUED SUMMONS ON THE ADDRESSES PROVIDED BY THE ASSESSEE. THERE WERE TOTAL 8 SQUARED UP CREDIT ORS TO WHOM THE SUMMONS WERE ISSUED OUT OF WHICH 5 CREDITORS CONFIRMED THE CREDITS AND FURNIS HED THE REQUISITE EVIDENCE FOR THEIR CREDITWORTHINESS. IN RESPECT OF THE OTHER 3 CREDIT ORS NEITHER ANY ONE APPEARED NOR ANY CONFIRMATION WAS FILED. THESE CREDITORS ARE :- 1) AGARWAL & CO. JANAKGANJ LASHKAR GWALIOR RS. 50 000/- 2) GOVERDHAN DAS GULAB CHAND DAULATGANJ LASHKAR GWALOR RS.1 00 000/- 3) SHRI SATISH AGARWAL JANAKGANJ LASHKAR GWALIOR RS. 50 000/- ---------------- RS.2 00 000/- ---------------- 3. THE A.O. WITHOUT GIVING ANY OPPORTUNITY TO THE ASSESSEE TOOK THE ADVERSE INFERENCE AND MADE THE ADDITION UNDER SECTION 68 OF THE ACT FOR A SUM OF RS.2 00 000/-. WHEN THE MATTER WENT BEFORE THE CIT(A) THE CIT(A) DELETED THE ADDITION BY OBSERVING AS UNDER :- I HAVE GONE THROUGH THE SUBMISSION OF THE APPELLAN T AND OBSERVATION OF THE ASSESSING OFFICER IN THE ASSESSMENT ORDER AND F IND THAT THE APPELLANT HAD SUBMITTED THE ADDRESSES IDENTIFICATION AND EVIDENC E OF CREDITWORTHINESS OF CREDITORS ON 17.03.2006. THEREAFTER THE ASSESSING OFFICER ISSUED THE SUMMONS TO EIGHT CREDITORS. OUT OF THOSE EIGHT CREDITORS FIV E CREDITORS COMPLIED THE SUMMON. BUT THREE CREDITORS UNDER CONSIDERATION DID NOT CO MPLY THE SUMMONS. THEREFORE THE ASSESSING OFFICER MADE THE ADDITION OF RS.2 00 000/- IN THE NAME OF THOSE THREE CREDITORS. THE INITIAL BURDEN TO PROVE THE CREDIT ENTRIES LIES UPON THE APPELLANT WHICH HE HAD DISCHARGED BY FILING THE NECESSARY DET AILS ON 17.03.2006 AS MENTIONED IN THE ASSESSMENT ORDER ITSELF. THE APPE LLANT IS NOT RESPONSIBLE FOR NON COMPLIANCE OF THE SUMMONS BY THE CREDITORS. THE AD DITION MERELY FOR NON COMPLIANCE OF THE SUMMONS BY THE CREDITORS IS NOT J USTIFIED IN VIEW OF DECISION IN 7 THE CASES OF SMT. LEELA VS. GOPAL SINGH & OTHERS 3 MPLT 449 (MP) SHRAWAN KUMAR SONI VS. SITA DEVI MPWN SN 226 AND NATURAM PREMCHAND VS. CIT 49 ITR 561 (ALL.) CIT VS. U.M. SHAH 90 ITR 396 (BOM.). ACCORDINGLY I AM OF THE CONSIDERED OPINION THAT THE APPELLANT HAS DULY DISC HARGED THE BURDEN LYING UPON THE APPELLANT AND THEREFORE THE ADDITION OF RS.2 00 000/- IS NOT SUSTAINABLE AND ACCO5DINGL;Y IS HEREBY DELETED. 4. REVENUE CAME IN APPEAL AGAINST THE ORDER OF THE CIT(A). 5. LD. J.M. CONFIRMED THE IMPUGNED DELETION WHILE T HE LD. A.M. UPHELD THE ADDITION MADE BY THE A.O. THE REASON GIVEN BY THE LD. A.M. WAS T HAT THE ASSESSEE FAILED TO EVEN SUBMIT THE PRIMARY DETAILS AND THUS FAILED TO DISCHARGE HIS ON US WHILE THE REASONING GIVEN BY THE LD. J.M. WAS THAT THE ADDITION WAS MADE MERELY DUE TO THE NO N-PRESENCE OF THE 3 CREDITORS EVEN AFTER THE SUMMONS WERE ISSUED TO THEM BY THE A.O. THE CASE W AS THEREFORE DULY COVERED BY THE DECISION OF THE JURISDICTIONAL HIGH COURT AS THE ASSESSEE HA D PROVIDED COMPLETE DETAILS IN REGARD TO THE CREDITORS. EVEN THE ADDRESSES OF THE CREDITORS TO WHOM SUMMONS WERE ISSUED WERE ALSO PROVIDED AND THEREFORE THE ADVERSE INFERENCE CANNOT BE DRA WN AGAINST THE ASSESSEE. THE ASSESSEE HAS DULY DISCHARGED HIS ONUS AS LAID DOWN U/S.68 OF THE INCOME TAX ACT 1961. 6. LD. A.R. BEFORE US RELIED ON THE ORDER OF THE LD . J.M. HE CONTENDED THAT THERE WERE IN ALL 8 SQUARED UP CREDITORS. THE ASSESSEE HAS SUBMITTED THE ADDRESSES AND THE PARTICULARS OF ALL THE 8 CREDITORS AND REQUESTED THE A.O. TO ISSUE SUMMONS T O THESE CREDITORS OUT OF WHICH 5 CREDITORS CONFIRMED THE CREDITS AND THEREFORE THE A.O. ACCE PTED THEM AS GENUINE. ONLY 3 CREDITORS DID NOT COMPLY WITH THE SUMMONS EVEN THOUGH THE SUMMONS WERE DULY SERVED. THE LOANS WERE RECEIVED THROUGH CHEQUE AND REPAID THROUGH CHEQUE. THEIR PAN IS ON RECORD. THE A.O. DUE TO NON-COMPLIANCE OF THE SUMMONS BY THESE 3 CREDITORS HAS TAKEN THE ADVERSE INFERENCE AGAINST THE ASSESSEE. EVEN NO OPPORTUNITY PRIOR TO THE ADDITI ON THAT THE SUMMON HAS NOT BEEN COMPLIED 8 WITH WAS GIVEN TO THE ASSESSEE AND THE IMPUGNED AD DITION WAS MADE. RELIANCE WAS PLACED IN THIS REGARD ON THE DECISION OF THE ALLAHABAD HIGH C OURT IN THE CASE OF NATURAM PREM CHAND VS. CIT 49 ITR 561 (ALL.) FOR THE PROPOSITION OF LAW T HAT NO INFERENCE CAN BE DRAWN AGAINST AN ASSESSEE MERELY BECAUSE THE ASSESSEE HAD TAKEN A DA STI SUMMONS FOR PRODUCTION OF WITNESS AND HAD NOT PRODUCED HIM. IT IS THE DUTY OF THE INCOME -TAX OFFICER TO ENFORCE THE ATTENDANCE OF THE WITNESS IF HIS EVIDENCE IS MATERIAL IN EXERCISE OF HIS POWERS UNDER SECTION 37(1) OF THE INCOME- TAX ACT READ WITH ORDER-XVI RULE-10 OF THE CIVIL PROCEDURE CODE. 7. LD. D.R. ON THE OTHER HAND RELIED ON THE ORDER OF THE LD. A.M. 8. I HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSION S AND PERUSED THE MATERIAL ON RECORD ALONGWITH THE CASE LAW CITED BEFORE US. IT IS AN A DMITTED FACT THAT IN THIS CASE THE ASSESSEE HAS ASKED THE A.O. TO ISSUE SUMMONS UNDER SECTION 131 O F THE ACT TO THE CREDITORS. THE ASSESSEE HAS GIVEN THE COMPLETE ADDRESSES. THE SUMMONS WERE DUL Y SERVED ON THESE PARTIES. THE A.O. HAD DRAWN AN INFERENCE AGAINST THE ASSESSEE AND MADE TH E ADDITION WITHOUT ENFORCING THE ATTENDANCE OF THE PARTIES TO WHOM THE SUMMONS WERE ISSUED AND DULY SERVED. THE A.O. EVEN DID NOT GIVE AN OPPORTUNITY TO THE ASSESSEE THAT THESE PARTIES DID NOT APPEAR EVEN AFTER THE SERVICE OF THE SUMMONS BUT MADE THE ADDITION. IN MY OPINION THE A .O. WAS BUND TO GIVE OPPORTUNITY TO THE ASSESSEE BEFORE TAKING THE ADVERSE INFERENCE AGAINS T THE ASSESSEE. ONCE THE SUMMONS HAVE DULY BEEN SERVED ON THE PARTIES THE IDENTITY OF THE PAR TIES ARE DULY PROVED. THE A.O. HAS NOT DONE ANYTHING EXCEPT SERVING SUMMONS SO THAT THE ATTENDA NCE OF THE PARTIES COULD BE ENFORCED. EVEN THE ASSESSEE WAS NOT MADE KNOWN ABOUT THE NON-APPEA RANCE OF THE PARTIES. THE A.O. IN MY OPINION WAS DUTY BOUND TO GIVE OPPORTUNITY TO THE ASSESSEE BEFORE DRAWING AN INFERENCE AGAINST THE ASSESSEE. THE CASE OF THE ASSESSEE IS DULY COV ERED BY THE DECISION OF NATURAM PREM CHAND 9 VS. CIT 49 ITR 561. THE LD. A.M. HAS NOT DISTINGU ISHED THE FACTS OF THE CASE WITH THE DECISION OF THE ALLAHABAD HIGH COURT IN THE CASE OF NATURAM PREM CHAND WHILE CONFIRMING THE ADDITION MADE BY THE A.O. IN MY OPINION ONCE THE A.O. HAS NOT GIVEN OPPORTUNITY TO THE ASSESSEE FOR THE 3 CREDITORS FOR WHICH THE ASSESSEE ASKED TO ISS UE SUMMONS THE INFERENCE CANNOT BE DRAWN AGAINST THE ASSESSEE. THE SUMMONS WERE DULY SERVED . UNDER THESE FACTS THE ASSESSEE HAS DISCHARGED HIS ONUS WHAT CAN BE EXPECTED FROM. THE CIT(A) HAS RIGHTLY DELETED THE ADDITION AND THE LD. J.M. WAS CORRECT IN LAW IN HOLDING THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF THE JURISDICTIONAL HIGH COURT. I THEREFORE AGREE WIT H THE DECISION OF THE LD. J.M. CONFIRMING THE ORDER OF THE CIT(A) DELETING THE ADDITION OF RS.2 0 0 000/- ON ACCOUNT OF CASH CREDIT. THUS QUESTION NO.1 IS ANSWERED IN FAVOUR OF THE ASSESSEE . 9. THE SECOND ISSUE RELATES TO THE DELETION OF THE ADDITION OF RS.85 205/- ON ACCOUNT OF UNRECORDED INVESTMENTS FOR THE PURCHASE OF GOODS M ADE BY THE CIT(A). 10. THE REVENUE HAS COME IN APPEAL. LD. J.M. CONFI RMED THE ACTION OF THE CIT (A) WHILE THE LD. A.M. CONFIRMED THE ADDITION. 11. THE FACTS RELATING TO THIS ISSUE ARE THAT THE A SSESSEE ACCORDING TO A.O. HAD PURCHASED GOODS WORTH RS.85 205/- FROM M/S. NARAIN FOOD PRODU CES MORENA THROUGH BANK DRAFT DATED 15.03.2002 WHICH WAS NOT FOUND RECORDED IN THE BOO KS OF ACCOUNTS OF THE ASSESSEE. THE ASSESSEE WHEN CONFRONTED STATED THAT HE HAS NOT C ONDUCTED ANY SUCH TRANSACTION WITH M/S. NARIAN FOOD PRODUCTS AND THIS FACT HAS BEEN FOUND F ROM THE BOOKS OF THE THIRD PARTY. THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A) AND THE C IT(A) DELETED THE ADDITION AS THE ADDITION WAS MERELY MADE ON THE BASIS OF THE EVIDENCE OF THE THIRD PARTY WHICH WAS TOTALLY DENIED BY THE 10 ASSESSEE. LD. J.M. TOOK THE VIEW THAT THE THIRD PA RTY CANNOT BIND THE ASSESSEE WITHOUT THERE BEING ANY CORROBORATIVE EVIDENCE WHILE THE LD. A.M. TOOK THE VIEW THAT THE ASSESSEE HAS MERELY DENIED THE FACTS. 12. LD. A.R. BEFORE US CONTENDED WITH THE PAPER BOO K FILED BEFORE THE TRIBUNAL THAT THE A.O. HAS DIRECTLY PROCURED COPY OF THE ASSESSEES ACCOUN TS IN THE BOOKS OF M/S. NARAIN FOOD PRODUCTS. FROM THE COPY OF ACCOUNTS WHICH IS AVAILABLE AT PA GES 5 & 6 IT IS APPARENT THAT THE PARTY HAS DEBITED A SUM OF RS.85 205/- ON ACCOUNT OF BILL NO. DRAFT ETC. NO BILL NUMBER HAD BEEN GIVEN BY THE PARTY FOR THIS TRANSACTION WHILE IN RESPECT OF ALL THE OTHER TRANSACTIONS WHICH ARE APPEARING FROM PAGES 5 TO 6 THE BILL NUMBER IS DULY GIVEN. T HE PARTY M/S. NARAIN FOOD PRODUCTS HAS ITSELF DEBITED AND CREDITED THE ASSESSEE WITH THE SAME AMO UNT SHOWING THE PURCHASE MADE BY THE ASSESSEE THROUGH BANK DRAFT WITHOUT MENTIONING ANY BILL NUMBER WHILE IN ALL OTHER TRANSACTIONS OF PURCHASE ENTERED INTO BY ASSESSEE AND CONFIRMED BY THE ASSESSEE THE BILL NUMBER IS DULY MENTIONED. THE ASSESSEE HAD DENIED THE TRANSACTION BEING ENTERED INTO. THE ADDITION HAS BEEN MADE MERELY ON THE BASIS OF THE EVIDENCE OF THE THI RD PARTY WHICH WAS DULY DENIED BY THE ASSESSEE. EVEN THE THIRD PARTY HAS NOT BEEN PRODUC ED BEFORE THE ASSESSEE FOR HIS CROSS EXAMINATION. THUS HE VEHEMENTLY RELIED ON THE ORD ER OF LD. J.M. DELETING THE ADDITION. 13. LD. D.R. ON THE OTHER HAND RELIED ON THE ORDE R OF THE A.M. CONFIRMING THE ADDITION. 14. I HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS ALONGWITH ORDER OF TAX AUTHORITIES BELOW. I HAVE ALSO GONE THROUGH THE ORDER OF BOTH THE LD. MEMBERS. I AGREE WITH THE ORDER OF THE LD. J.M. AS IN MY OPINION THE CIT(A) HAS RIGHTLY DE LETED THE ADDITION. I HAVE PERUSED THE COPY OF ACCOUNT WHICH IS AVAILABLE AT PAGES 5 & 6 OF THE PA PER BOOK. FROM THE COPY OF ACCOUNT I NOTED 11 THAT AGAINST ALL THE TRANSACTIONS RELATING TO THE A SSESSEE THE BILL NUMBERS ARE DULY MENTIONED BUT IN RESPECT OF THE TRANSACTIONS RELATING TO RS.85 20 5/- WHICH THE ASSESSEE HAS DENIED M/S. NARAIN FOOD PRODUCTS HAS NOT MENTIONED ANY BILL NUMBER BUT HAS SHOWN THE DRAFT BANK ETC. IN MY OPINION NO ADDITION CAN BE MADE MERELY ON THE BASI S OF THE EVIDENCE PROCURED BY THE THIRD PARTY UNLESS AND UNTIL THAT PARTY IS PUT TO THE ASSESSEE FOR CROSS EXAMINATION SPECIALLY WHEN THE ASSESSEE HAS CATEGORICALLY DENIED THE TRANSACTION. STATEMENT RELIED ON BY THE REVENUE ITSELF DO NOT DISCLOSE THE BILL NO. THROUGH WHICH TRANSACTION IS ENTERED INTO. IT ONLY CONTAINS THROUGH DRAFTS ETC. ONLY. THEREFORE THIS EVIDENCE IN MY VIEW CANNOT BE A VALID EVIDENCE TO MAKE THE ADDITION. ONCE THE ASSESSEE HAD DENIED THE TRANSAC TION THE A.O. WAS BOUND TO ADDUCE THE EVIDENCES FOR THE REBUTTAL OF ASSESSEE. THE A.O. H AS NOT DONE SO. THEREFORE UNDER THE FACTS OF THE CASE I AGREE WITH THE LD. J.M. DELETING THE AD DITION. 15. THUS QUESTION NO.2 IS DECIDED IN FAVOUR OF THE ASSESSEE. 16. THE MATTER WILL NOW GO BEFORE THE REGULAR BENCH FOR DECIDING THE APPEAL IN ACCORDANCE WITH THE MAJORITY OPINION. SD/- (P.K. BANSAL) ACCOUNTANT MEMBER PLACE: AGRA DATE: 4 TH JANUARY 2010. PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR ITAT AGRA BENCH AGRA 6. GUARD FILE ASSIS TANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL AGRA TRUE COPY