M/s. Gokul Refoils & Solvent Ltd.,, Patan v. The ACIT.,Patan Circle,, Patan

ITA 1027/AHD/2013 | 2008-2009
Pronouncement Date: 07-10-2016 | Result: Allowed

Appeal Details

RSA Number 102720514 RSA 2013
Assessee PAN AAACG8316N
Bench Ahmedabad
Appeal Number ITA 1027/AHD/2013
Duration Of Justice 3 year(s) 5 month(s) 25 day(s)
Appellant M/s. Gokul Refoils & Solvent Ltd.,, Patan
Respondent The ACIT.,Patan Circle,, Patan
Appeal Type Income Tax Appeal
Pronouncement Date 07-10-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 07-10-2016
Assessment Year 2008-2009
Appeal Filed On 12-04-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD BEFORE SHRI RAJPAL YADAV JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI ACCOUNTANT MEMBER ./ ITA.NO.1027/AHD/2013 / ASSTT. YEAR: 2008-2009 GOKUL REFOILS & SOLVENT LTD. SUJANPUR PATIYA HIGHWAY ROAD SIDHPUR DIST. PATAN. PAN : AAACG 8316 N VS ACIT PATAN CIRCLE PATAN. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : SHRI TUSHAR HEMANI REVENUE BY : SHRI SANJAY KUMAR SR.DR / DATE OF HEARING : 13/07/2016 / DATE OF PRONOUNCEMENT: 07/10/2016 $%/ O R D E R PER RAJPAL YADAV ACCOUNTANT MEMBER ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST O RDER OF THE LD.CIT(A) GANDHINAGAR DATED 8.2.2013 PASSED FOR TH E ASSTT.YEAR 2008-09. 2. THOUGH THE ASSESSEE HAS TAKEN SIX GROUNDS OF APP EAL BUT ITS GRIEVANCE REVOLVES AROUND A SINGLE ISSUE WHEREBY IT HAS PLEA DED THAT THE LD.CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.4 30 48 652/ - WHICH WAS ADDED BY THE AO TREATING THE ENTIRE PURCHASES MADE FROM M/S.J. R AY & SONS (JRS FOR SHORT) AS BOGUS PURCHASES. ITA NO.1027/AHD/2013 2 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HA S FILED ITS RETURN OF INCOME ON 29.9.2008 DECLARING TOTAL INCOME AT RS.68 77 45 748/-. THE RETURN WAS REVISED ON 14.4.2009 AND INCOME OF RS.70 11 09 350/ - WAS DECLARED. THE ASSESSEE AT THE RELEVANT TIME WAS ENGAGED IN THE BU SINESS OF MANUFACTURING AND TRADING IN EDIBLE OIL NON-EDIBLE OIL DE-OIL C AKE AND AGRO PRODUCTS. IT HAS SHOWN GP AT THE RATE OF 6.44% OF THE TOTAL TURNOVER WHICH IS LESSER THAN GP OF 9.95% DECLARED IN THE IMMEDIATELY PRECEDING YEAR . THE LD.AO HAS MADE A REFERENCE THAT ADIT (INVESTIGATION) MEHSANA TRANSM ITTED AN INFORMATION TO THE AO EXHIBITING THE FACT THAT FINANCIAL INTELLIGE NCE UNIT HAS REPORTED THAT M/S.J. RAJ & SONS & OTHERS SIDHPUR HAD DEPOSITED S UBSTANTIAL AMOUNT BY CHEQUE IN ITS BANK ACCOUNT FOLLOWED BY CASH WITHDRA WAL. THE AMOUNT OF WITHDRAWAL IS KEPT UNDER REPORTING THRESHOLD LIMIT OF RS.10 LAKHS IN AN ATTEMPT TO AVOID REPORTING. AN INQUIRY WAS MADE BY THE INVESTIGATION WING AND ULTIMATELY IT CAME OUT THAT ITS PARTNERS HAVE D ISCLOSED THAT THEY HAVE ISSUED ONLY BILLS FOR SALE OF ITEMS. THE ASSESSEE IS ONE OF THE PURCHASERS AND THEREFORE PURCHASES MADE FROM JRS HAVE BEEN DOUB TED BY THE AO. HE CONFRONTED THE ASSESSEE WITH REGARD TO THE DISCLOSU RE MADE BY THE PARTNERS. THE ASSESSEE REVISED ITS RETURN ON 14.4.2009 AND SU BMITTED A LETTER TO THE AO POINTING OUT THAT IT HAS ITSELF DISALLOWED THE PURC HASE COST FROM JRS TO THE EXTENT OF 25% AND THEREFORE ENHANCED INCOME WAS O FFERED FOR TAXATION. THE LD.AO WAS NOT SATISFIED WITH THE STAND OF THE ASSES SEE AND HE MADE DISALLOWANCE OF TOTAL PURCHASES MADE BY THE ASSESSE E FROM JRS. ACCORDINGLY THE AO MADE AN ADDITION OF RS.4 30 48 562/-. 4. ON APPEAL THE LD.CIT(A) HAS CONFIRMED THE ADDIT ION. THE LD.CIT(A) HAS RECORDED THE FACTS NEATLY. THEREFORE WE DEEM IT APPROPRIATE TO TAKE NOTE OF THE FINDING RECORDED BY THE LD.CIT(A). IT READS AS UNDER: 4.4 I HAVE GONE THROUGH THE ENTIRE FACTS OF THE CA SE CAREFULLY. THE IMPORTANT FACTS AND OBSERVATION ARE CULLED OUT AS U NDER: ITA NO.1027/AHD/2013 3 I) THE ROOT OF THE ISSUE LIES IN AN INFORMATI ON RECEIVED FROM FINANCIAL INTELLIGENCE UNIT THAT THERE HAVE BEEN SU BSTANTIAL DEPOSITS BY CHEQUES FOLLOWED BY CASH WITHDRAWALS IN THE BANK AC COUNT OF M/S. J. RAJ & SONS. MOST OF THESE CHEQUES WERE FOUND PERTAI NING TO M/S. GOKUL REFOILS AND SOLVENTS LTD I.E. THE APPELLANT. II) THE INVESTIGATION WING ISSUED A NOTICE U/S 131 AND RECORDED THE STATEMENT OF SHRI IBRAHIM J. CHAROLIA ONE OF THE P ARTNERS. THE RELEVANT ASSERTIONS MADE BY THE PARTNER ARE AS FOLLOWS: A) HE WORKED AS PURCHASE MANAGER OF GOKUL GROUP DUR ING THE PERIOD 1/3/2006 TO 28/2/2008 (THIS INCLUDES SUBSTANTIAL PE RIOD OF THE CURRENT ASSESSMENT YEAR). B) DUE TO HIS STATUS OF EMPLOYEE HE WAS FORCED TO ISSUE BOGUS BILLS TO THE CONCERNS OF THE GROUP. C) HE WENT ON TO GIVE THE DETAILS ACCORDING TO HIM OF THE BILLS ISSUED TO THE CONCERNS OF GOKUL GROUP IN DIFFERENT YEARS. THI S INCLUDED PURCHASES OF RS.4 30 48 652/- IN THE CASE OF THE AP PELLANT FOR THE ASSESSMENT YEAR UNDER APPEAL. D) HE CLAIMED THAT HE WAS PAID RS.50 000/- TO RS.60 000/- PER YEAR ADDITIONAL BESIDES HIS REGULAR SALARY. I) WHEN THE STATEMENT WAS CONFRONTED THE PRINC IPAL OFFICER OF THE CONCERNS OF THE GROUP SUBMITTED BEFORE THE ADIT LET TER DATED 30/3/2009. THE CONTENTS OF THE LETTER ARE SUMMED UP AS FOLLOWS: (A) THE PURCHASES WERE CLAIMED GENUINE SUPPORTE D BY BILLS PAYMENT OF VAT AND PAYMENTS ARE BY CHEQUES. THE PURCHASES A RE SUPPORTED BY WEIGH BRIDGE SLIPS GATE-PASS QUALITY TEST REPORTS WHEN DIFFERENCE IN QUALITY STANDARD IS THERE-THE CORRESPONDING AMOUNT IS DEDUCTED FROM THE PAYMENT. (B) FOR SOME UNFORESEEN REASONS M/S. J. RAJ & S ONS HAS COME OUT WITH SUCH STATEMENT WITH WHICH THEY DO NOT AGREE TO . HOWEVER WITHOUT PREJUDICE TO THE ABOVE SUBMISSION A VIEW TO AVOID U NDRAWN LITIGATION AND PURPORTEDLY TO BUY PEACE AND CO-OPERATE WITH TH E DEPARTMENT THEY VOLUNTARILY AGREED TO DISALLOWANCE OF 25% OF AMOUNT REFERRED TO EARLIER AS UNDER FROM J. RAJ & SONS SIDHPUR FOR FY 2007-08 & 2008- 09 AS UNDER: ITA NO.1027/AHD/2013 4 RS.1 07 62 140/- 25% OF RS.4 30 48 562/- FO R FY 2007-08 AND TO GIVE EFFECT TO THIS DISALLOWANCE THEY WILL FILE REVISED RETURN FOR THE FY 2007-08 (AY 2008-09) AND ALSO PAY TAX DUE THEREON. RS.41 27 552/- 25% OF RS.1 65 10 209/- ( AY2009-10) WHICH THEY WILL DISALLOW WHILE FILING THE RETURN OF INCOME FOR THE AY 2009-10 IV) FROM THE ASSESSMENT ORDER IT IS APPARENT THAT T HE OFFER OF 25% OF PURCHASES AS INCOME WAS MADE BY THE APPELLANT BEFO RE THE ADIT ON THE BASIS OF THE JUDGMENT OF HON'BLE GUJARAT HIGH C OURT IN THE CASE OF SANJAY OIL CAKE INDUSTRIES 10 DTR 153. THE COPY OF THE JUDGMENT WAS ALSO PRODUCED BY THE APPELLANT BEFORE THE ADIT (REF ER TO FIRST PARAGRAPH ON PAGE 5 OF THE ASSESSMENT ORDER). THIS IS CONFIRMED BY THE SUBMISSIONS OF THE ASSESSEE FOR THE REASONS OF REVI SING THE RETURN IN ITS LETTER DATED 24/11/2011 DURING T HE ASSESSMENT PROCEEDINGS (REPRODUCED IN PARA. 9 PAGE-8 OF THE AS SESSMENT ORDER). V) THE AO ASKED THE APPELLANT TO SHOW CAUSE WH Y THE ADDITION BE NOT MADE EQUIVALENT TO THE ENTIRE PURCHASES FROM M/ S J. RAJ & SONS AND NOT ONLY 25% OF IT. IN RESPONSE THE APPELLANT R EITERATED THAT ITS PURCHASES WERE GENUINE AND RELIED ON EVIDENCES/RECO RD REFERRED TO IN III)(A) ABOVE WHICH WAS TAKEN BEFORE THE ADIT WHILE MAKING THE OFFER OF ADDITIONAL INCOME FOR TAXATION. IT ALSO REQUESTE D THE AO FOR CROSS EXAMINATION OF SHRI IBRAHIM J. CHAROLIA. NOTICE WAS ISSUED BY THE AO TO THE WITNESS AND THE APPELLANT WAS INFORMED OF OP PORTUNITY FOR CROSS EXAMINATION. THE WITNESS COULD NOT TURN UP ON THE A PPOINTED DATE. VI) THE ASSESSEE COMPANY WHILE OFFERING ONLY 25% O F AFORESAID ALLEGED BOGUS PURCHASES AS ITS ADDITIONAL INCOME HA S PLACED ITS RELIANCE ON THE DECISION OF HON. GUJARAT COURT IN S ANJAY OIL & CAKE INDUSTRIES. THE AO WHILE DISALLOWING OF THE PURCHAS ES; CONTENTED THAT THE FACTS OF THAT CASE ARE DISTINGUISHABLE VIS-A-VI S THE FACTS OF THE CASE OF ASSESSEE COMPANY; AND RELIED ON THE FO LLOWING DECISIONS:- (A) CIT VS. DOLAT PROTEINS TAX APPEAL NO. 561 OF 2010 DATED 13-12-2011 (B) D.D. KOCHAR & SONS VS. ITO (1988) 25 ITD 217 (DELHI) (TM) (C) CIT VS. LA MEDICA (2001) 250 ITR 575 ITA NO.1027/AHD/2013 5 WHEN ALL THE ABOVE FACTS AND CIRCUMSTAN CES ARE CONSIDERED THE BASIC DISPUTE BETWEEN THE APPELLANT AND THE RE VENUE IS ARISING OUT OF INCOME THAT NEEDS TO BE TAXED BASED ON THE IM PUGNED PURCHASES BEING CONSIDERED NON-GENUINE. THE VERY FACT THAT WH EN THE APPELLANT WAS CONFRONTED THE STATEMENT OF THE PARTNER OF THE CLAIMED' SELLER FIRM IT AGREED FOR REVISING ITS INCOME UPWARDS BASED ON THE PURCHASES SHOWN FROM THE CONCERN; SHOWS ITS READINE SS TO BE ASSESSED BASED ON THIS PREMISES. ONCE THE APPELLANT HAS EVEN REVISED ITS RETURN AND PAID TAXES THEREON; ON THE VERY BASIS NATURALL Y THE DEPARTMENT STOPPED SUBSEQUENT ENQUIRIES. NOW TO ATTEMPT TO GO BACK AND CHALLENGE IT CANNOT BE ALLOWED JUST BECAUSE THERE IS A DISPUT E OVER THE QUANTUM; WHICH IS ONLY A CONSEQUENCE. NOW THE QUESTION IS IN CASE OF BOGUS OR TOTALLY U NVERIFIABLE PURCHASES; WHAT SHOULD BE THE QUANTUM OF ADDITION. 5. THE ASSESSEE HAS FILED AN APPLICATION UNDER RULE 29 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES FOR PRODUCING ADDITIONAL EVIDENCE. BY WAY OF THIS APPLICATION THE ASSESSEE SOUGHT TO PRODUCE COPY OF THE ASSESSMENT ORDER AS WELL AS CIT(A)S ORDER FOR THE ASSTT.YEAR 2006-07. IT ALSO WANTS TO PRODUCE COPY OF THE STATEMENT GIVEN BY SHRI IBRAHIM J. CHAR OLIA DATED 2.7.2014. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSE SSMENT ORDER IS BASED ON THE STATEMENT OF THIRD PARTY VIZ. SHRI IBRAHIM J. CHARO LIA WHO HAS DISCLOSED THAT JRS HAD ISSUED BOGUS BILLS OF SALES IN FAVOUR OF THE ASSESSEE. SIMILAR ISSUE HAS ARISEN IN THE ASSTT.YEAR 2006-07 WHEN THE LD.CI T(A) HAS CALLED FOR REMAND REPORT FROM THE AO AND DIRECTED THE AO TO P ROVIDE AN OPPORTUNITY OF CROSS-EXAMINATION THEN THE AO PROVIDED OPPORTUNIT Y TO CROSS-EXAMINATION AND SHRI IBRAHIM J. CHAROLIA HAS TOTALLY RESILED FR OM EARLIER VERSION GIVEN TO ADIT. HE DISCLOSED THAT HE HAS GIVEN EARLIER STATE MENT UNDER FORCE AND THREAT OF THE INCOME TAX DEPARTMENT. THE LD.COUNSEL FOR T HE ASSESSEE SUBMITTED THAT IN THE PRESENT CASE STATEMENT OF THIS PERSON HAS B EEN HEAVILY RELIED UPON BY BOTH THE REVENUE AUTHORITIES AND THE ASSESSEE HAS NOT BEEN PROVIDED OPPORTUNITY OF CROSS-EXAMINATION. HE RELIED UPON T HE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF M/S.ANDAMAN TI MBER INDUSTRIES VS. ITA NO.1027/AHD/2013 6 COMM. OF CENTRAL EXCISE KOLKATA CIVIL APPEAL NO.4 228 OF 2006. HE PLACED ON RECORD COPY OF THE DECISION DATED 2.9.201 5. IN THIS DECISION THE HONBLE SUPREME COURT HAS HELD THAT IF AN OPPORTUNI TY TO CROSS-EXAMINATION IS BEING NOT GIVEN TO THE AFFECTED PERSON THE STAT EMENT AGAINST THAT PERSON CANNOT BE USED. ON THE STRENGTH OF THIS DECISION HE CONTENDED THAT IF IN THIS ASSESSMENT YEAR OPPORTUNITY TO CROSS-EXAMINATION I S NOT BEING GRANTED TO THE ASSESSEE THEN HIS STATEMENT CANNOT BE USED. IF H IS STATEMENT IS EXCLUDED THEN NOTHING IS WITH THE DEPARTMENT TO DOUBT THE C LAIM OF THE ASSESSEE. HE ALSO POINTED OUT THAT THE ASSESSEE HAS PRODUCED ALL SUPPORTING DETAILS I.E. TRANSPORT RECEIPTS BILL/INVOICES GATE PASS TRANS PORTATION OF GOODS FROM M/S.J. RAJ & SONS TO ASSESSEES PREMISES. THE INCO ME OFFERED BY THE ASSESSEE AT 25% OF THE TOTAL PURCHASE COST CANNOT BE USED AS TOOL AGAINST THE ASSESSEE FOR MAKING DISALLOWANCE AT 100% OF THE PURCHASES. 6. THE LD.DR ON THE OTHER HAND CONTENDED THAT THE ASSESSEE HAS BEEN PROVIDE DUE OPPORTUNITY OF HEARING DURING THE COURS E OF ASSESSMENT PROCEEDINGS. THE STATEMENT OF SHRI IBRAHIM J. CHAR OLIA WAS GIVEN TO HIM AND THE ASSESSEE COULD NOT REVERT THAT STATEMENT. 7. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THROUGH THE RECORD CAREFULLY. THE ISSUE BEFORE US IS WHETHER THE PURC HASES MADE BY THE ASSESSEE FROM JRS ARE GENUINE OR NOT. IF NOT THEN WHETHER TOTAL PURCHASE COST IS TO BE DISALLOWED OR THE ELEMENT OF PROFIT EARNED BY THE A SSESSEE BY INDULGING IN THIS ACTIVITY IS TO BE ADDED BACK ? WE FIND THAT THERE ARE TWO SETS OF EVIDENCE AVAILABLE ON THE RECORD. IN THE FINDING OF THE LD. CIT(A) EXTRACTED SUPRA IT IS DISCERNIBLE THAT THE ASSESSEE HAS SUBMITTED ALL SUP PORTING DETAILS VIZ. PAYMENT OF VAT PAYMENT MADE THROUGH CHEQUE WEIGH BRIDGE S LIPS GATE PASS QUALITY TEST REPORT AND TRANSPORT DETAILS. NO DEFECTS WERE FOUND IN THE BOOKS OF THE ASSESSEE. IN ONE HAND THE DEPARTMENT WAS HAVING I NTELLIGENCE INPUTS FROM ITA NO.1027/AHD/2013 7 FINANCIAL INTELLIGENCE UNIT DEMONSTRATING THE FACT THAT M/S.JRS HAVE DEPOSITED SUBSTANTIAL AMOUNT THROUGH ACCOUNT PAYEE CHEQUE BUT WITHDREW THOSE AMOUNTS BY CASH. ADMISSION MADE BY THE REPRE SENTATIVE OF JRS THAT THIS CONCERN HAS ISSUED BOGUS BILLS. AS FAR AS INP UTS RECEIVED FROM THE FINANCIAL INTELLIGENCE UNIT IS CONCERNED THIS IS A CORROBORATIVE PIECE OF EVIDENCE WHICH CAN BE STATED AS INFORMATION FOR STA RTING INVESTIGATION. IT IS NOT A KIND OF EVIDENCE WHICH CAN AFFECT THE ASSESSE E THIS WAY OR THAT WAY. ONLY AFFECTIVE EVIDENCE POSSESSED BY THE DEPARTMENT IS THE STATEMENT OF SHRI IBRAHIM J. CHAROLIA WHO DISCLOSED THAT JRS HAS GIVE N BOGUS BILLS TO THE ASSESSEE. THIS STATEMENT WAS RECORDED FROM THE BAC K OF THE ASSESSEE AND IT WAS NOT GIVEN AN OPPORTUNITY TO CROSS-EXAMINE. AT THIS STAGE WE DEEM IT APPROPRIATE TO MAKE A REFERENCE TO THE FINDING OF T HE HONBLE SUPREME COURT IN THE CASE OF M/S.ANDAMAN TIMBER INDUSTRIES (SUPRA ). IT READS AS UNDER: . ACCORDING TO US NOT ALLOWING THE ASSESSEE TO CROSS -EXAMINE THE WITNESSES BY THE ADJUDICATING AUTHORITY THOUGH THE STATEMENTS OF THOSE WITNESSES WERE MADE THE BASIS OF THE IMPUGNED ORDER IS A SERIOUS FLAW WHICH MAKES THE ORDER NULLITY INASMUCH AS IT AMOUNT ED TO VIOLATION OF PRINCIPLES OF NATURAL JUSTICE BECAUSE OF WHICH THE ASSESSEE WAS ADVERSELY AFFECTED. IT IS TO BE BORNE IN MIND THAT THE ORDER OF THE COMMISSIONER WAS BASED UPON THE STATEMENTS GIVEN BY THE AFORESAID TWO WITNESSES. EVEN WHEN THE ASSESSEE DISPUTED THE CORRECTNESS OF THE STATEMENTS AND WANTED TO CROSS-EXAMINE THE ADJUDIC ATING AUTHORITY DID NOT GRANT THIS OPPORTUNITY TO THE ASSESSEE. IT WOULD BE PERTINENT TO NOTE THAT IN THE IMPUGNED ORDER PASSED BY THE ADJUD ICATING AUTHORITY HE HAS SPECIFICALLY MENTIONED THAT SUCH AN OPPORTUN ITY WAS SOUGHT BY THE ASSESSEE. HOWEVER NO SUCH OPPORTUNITY WAS GRAN TED AND THE AFORESAID PLEA IS NOT EVEN DEALT WITH BY THE ADJUDI CATING AUTHORITY. AS FAR AS THE TRIBUNAL IS CONCERNED WE FIND THAT REJE CTION OF THIS PLEA IS TOTALLY UNTENABLE. THE TRIBUNAL HAS SIMPLY STATED T HAT CROSS- EXAMINATION OF THE SAID DEALERS COULD NOT HAVE BROU GHT OUT ANY MATERIAL WHICH WOULD NOT BE IN POSSESSION OF THE AP PELLANT THEMSELVES TO EXPLAIN AS TO WHY THEIR EX-FACTORY PRICES REMAIN STATIC. IT WAS NOT FOR THE TRIBUNAL TO HAVE GUESS WORK AS TO FOR WHAT PURP OSES THE APPELLANT ITA NO.1027/AHD/2013 8 WANTED TO CROSS-EXAMINE THOSE DEALERS AND WHAT EXTR ACTION THE APPELLANT WANTED FROM THEM. AS MENTIONED ABOVE THE APPELLANT HAD CONTESTED THE TRUTHFULNESS OF THE STATEMENTS OF THESE TWO WITNESSES AND WANTED TO DIS CREDIT THEIR TESTIMONY FOR WHICH PURPOSE IT WANTED TO AVAIL THE OPPORTUNITY OF CROSS- EXAMINATION. THAT APART THE ADJUDICATING AUTHORIT Y SIMPLY RELIED UPON THE PRICE LIST AS MAINTAINED AT THE DEPOT TO DETERM INE THE PRICE FOR THE PURPOSE OF LEVY OF EXCISE DUTY. WHETHER THE GOODS W ERE IN FACT SOLD TO THE SAID DEALERS/WITNESSES AT THE PRICE WHICH IS ME NTIONED IN THE PRICE LIST ITSELF COULD BE THE SUBJECT MATTER OF CROSS-EX AMINATION. THEREFORE IT WAS NOT FOR THE ADJUDICATING AUTHORITY TO PRESUPPOS E AS TO WHAT COULD BE THE SUBJECT MATTER OF THE CROSS-EXAMINATION AND MAKE THE REMARKS AS MENTIONED ABOVE. WE MAY ALSO POINT OUT THAT ON AN E ARLIER OCCASION WHEN THE MATTER CAME BEFORE THIS COURT IN CIVIL APP EAL NO. 2216 OF 2000 ORDER DATED 17.03.2005 WAS PASSED REMITTING T HE CASE BACK TO THE TRIBUNAL WITH THE DIRECTIONS TO DECIDE THE APPEAL O N MERITS GIVING ITS REASONS FOR ACCEPTING OR REJECTING THE SUBMISSIONS. 8. IF STATEMENT OF SHRI IBRAHIM J. CHAROLIA IS EXCL UDED THEN NOTHING LEFT WITH THE DEPARTMENT. APART FROM THE ABOVE THE ASS ESSEE SOUGHT TO PLACE ON RECORD CERTAIN DOCUMENTS BY WAY OF ADDITIONAL EVIDE NCE. IN CASE WE ENTERTAIN THESE ADDITIONAL EVIDENCES THEN AN OPPORTUNITY OF HEARING IS TO BE GRANTED TO THE AO TO REBUT. IN OUR OPINION THE STATEMENT OF SHRI IBRAHIM J. CHAROLIA GIVEN IN THE ASSTT.YEAR 2007-08 SUBSEQUENT TO THE P ASSING OF THE ASSESSMENT ORDER IN THE PRESENT YEAR IS A RELEVANT PIECE OF EV IDENCE FOR DECIDING THIS ISSUE IN THE PRESENT APPEAL. THEREFORE WE DEEM IT APPRO PRIATE TO SET ASIDE THE IMPUGNED ORDERS AND RESTORE THIS ISSUE TO THE FILE OF THE AO FOR RE- ADJUDICATION. THE LD.AO SHALL PROVIDE OPPORTUNITY OF HEARING TO THE ASSESSEE AND ALSO PROVIDE AN OPPORTUNITY TO CROSS-EXAMINE SH RI IBRAHIM J. CHAROLIA. IF THE LD.AO DOES NOT WANT TO USE THAT STATEMENT AGAIN ST THE ASSESSEE THEN IT WILL NOT BE NECESSARY TO PROVIDE OPPORTUNITY OF CROSS-EX AMINATION. THE LD.AO SHALL ALSO CONSIDER THE FINDING OF THE LD.CIT(A) RE NDERED IN THE ASSTT.YEAR 2006-07 ON SIMILAR ISSUE. THE LD.AO SHALL DECIDE T HE ISSUE IN ACCORDANCE WITH LAW. ITA NO.1027/AHD/2013 9 9. THE OBSERVATIONS MADE BY US WILL NOT IMPAIR OR I NJURE THE CASE OF THE AO AND WILL NOT CAUSE ANY PREJUDICE TO THE DEFENCE/ EXPLANATION OF THE ASSESSEE. 10. IN THE RESULT THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 7 TH OCTOBER 2016 AT AHMEDABAD. SD/- SD/- (ANIL CHATURVEDI) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 07/10/2016