The ITO, Ward-4(1),, Ahmedabad v. Ganga Himalaya Bottling Pvt.Ltd.,, Ahmedabad

ITA 1262/AHD/2008 | 2004-2005
Pronouncement Date: 09-09-2010 | Result: Allowed

Appeal Details

RSA Number 126220514 RSA 2008
Assessee PAN AABCG8500D
Bench Ahmedabad
Appeal Number ITA 1262/AHD/2008
Duration Of Justice 2 year(s) 5 month(s)
Appellant The ITO, Ward-4(1),, Ahmedabad
Respondent Ganga Himalaya Bottling Pvt.Ltd.,, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 09-09-2010
Appeal Filed By Department
Order Result Allowed
Bench Allotted D
Tribunal Order Date 09-09-2010
Date Of Final Hearing 24-08-2010
Next Hearing Date 24-08-2010
Assessment Year 2004-2005
Appeal Filed On 09-04-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'D' BEFORE SHRI MUKUL SHRAWAT JM & SHRI A N PAHUJA AM ITA NO.1262/AHD/2008 WITH C O NO.103/AHD/2008 (ASSESSMENT YEAR:-2004-05) INCOME-TAX OFFICER WARD- 4(1) ROOM NO. 104 1 ST FLOOR NAVJIVAN TRUST BUILDING NAVJIVAN PO AHMEDABAD V/S GANGA HIMALAYA BOTTLING PVT. LTD. 804 SARAP BUILDING OPP. NAVJEEVAN PRESS ASHRAM ROAD AHMEDABAD-14 [PAN: AABCG 8500 D] [APPELLANT] [RESPONDENT] REVENUE BY :- SHRI VIMALENDU VERMA DR ASSESSEE BY:- SHRI N C AMIN AR O R D E R A N PAHUJA: THIS APPEAL BY REVENUE AND CROSS-OBJECTION[CO] BY THE ASSESSEE DIRECTED AGAINST AN ORDER DATED 30-01-2008 OF THE LD. CIT (APPEALS)-VIII AHMEDABAD FOR ASSESSMENT YEAR 2004- 05 RAISE THE FOLLOWING GROUNDS :- ITA NO.1262/AHD/2008[REVENUE] 1 THE LD. CIT(A) ERRED IN LAW AND ON THE FACTS OF T HE CASE IN DELETING THE ADDITION MADE U/S 68 OF RS.73 98 416/- ON ACCOUNT O F UNEXPLAINED DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE. 2 THE LD. CIT(A) ERRED IN LAW AND ON THE FACTS OF T HE CASE IN ACCEPTING THE ASSESSEES CONTENTION THAT THE TOTAL DEPOSITS I N THE CURRENT ACCOUNT OF THE ASSESSEE WITH THE STATE BANK OF INDIA RISHI KESH WERE ONLY RS.58 24 292/-. 3 THE LD. CIT(A) ERRED IN LAW AND ON THE FACTS OF T HE CASE IN DELETING THE ADDITION U/S 68 OF RS.31 30 172/- ON ACCOUNT OF UNE XPLAINED INCOME BY WAY OF ADVANCES FROM CUSTOMERS. 4 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESS ING OFFICER ITA NO.1262/AHD/08 & C O NO.103/AHD/08 2 5 IT IS THEREFORE PRAYED THAT THE ORDER OF THE LD . CIT(A) MAY BE CANCELLED AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED TO THE ABOVE EFFECT. C O NO.103/AHD/2008[ASSESSEE] 1 THAT THE LEARNED CIT(A) HAS ERRED IN NOT ACCEPTIN G LOSS OF RS.47 90 180/- RETURNED BY THE CROSS OBJECTOR. 2 THAT THE AMOUNT OF RS.23 000/- DEPOSITED BY THE D IRECTOR IS GENUINE PROPER AND HOWEVER ON UNWANTED GROUNDS BY THE LEAR NED CIT(A) BE DELETED. 3 THAT THE LEARNED CIT(A) IS JUSTIFIED IN DELETING UNWANTED ADDITION OF RS.31 30 172/- AND RS.73 98 416/- MADE BY THE LEARN ED AO ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND MATERIALS L YING ON RECORD. 4 THAT THE ORDER PASSED BY THE LEARNED AO IS ARBITR ARY AND CONTRARY TO THE MATERIALS AVAILABLE ON RECORD AND GENUINE EXPEN SES INCURRED AND TDS MADE THEREON HAVE ALSO BEEN DISALLOWED BE ALLOW ED AND RETURNED LOSS OF RS.47 90 180/- BE ACCEPTED. 5 HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF T HE CASE OF THE CROSS OBJECTOR AND MATERIALS LYING ON RECORD THE LOSS DE CLARED BE ACCEPTED. 6 YOUR CROSS OBJECTOR CRAVES LEAVE TO ADD ALTER OR AMEND ANY OF THE CROSS OBJECTIONS TILL THE APPEAL IS FINALLY HEARD A ND DECIDED. 2 ADVERTING FIRST TO GROUND NOS. 1 TO 3 IN THE APPE AL OF THE REVENUE FACTS IN BRIEF AS PER RELEVANT ORDERS A RE THAT RETURN DECLARING LOSS OF RS.47 90 180/- FILED ON 30-03-200 5 BY THE ASSESSEE RUNNING A BOTTLING PLANT AFTER BEING PRO CESSED ON 31-03- 2005 U/S 143(1) OF THE INCOME-TAX ACT 1961 [HEREIN AFTER REFERRED TO AS THE ACT] WAS SELECTED FOR SCRUTINY WITH THE SERVICE OF A NOTICE U/S 143(2) OF THE ACT ON 03-08-2005. NONE RESPONDED TO THIS NOTICE. EVEN THE SUBSEQUENT NOTICES U/S. 143(2) & 142(1) O F THE ACT ISSUED ON 24-04-06 & 15.6.2006 AS ALSO ON 8.8.2006 WERE NOT COMPLIED WITH. ACCORDINGLY THE ASSESSING OFFICER[AO IN SHOR T] ISSUED NOTICES U/S 143(2) & 142(1) OF THE ACT ON 05-09-06 ALONG W ITH A DETAILED ITA NO.1262/AHD/08 & C O NO.103/AHD/08 3 SHOW CAUSE U/S 142(1) OF THE ACT SEEKING DETAILS O F ASSETS UNSECURED LOANS RENT AND JUSTIFICATION FOR VARIOUS EXPENSES BESIDES PROPOSING TO REJECT BOOK RESULTS AND THEREBY DISALL OWING CLAIM FOR LOSS OF RS. RS 47 90 180/-. THE HEARING FOR THIS PU RPOSE WAS SCHEDULED FOR 13-9-06. ON THE SAID DATE CERTAIN DET AILS WERE FILED BY THE AUDITORS WHO WERE NOT AUTHORIZED BY THE ASSESS EE. ACCORDINGLY ANOTHER NOTICE U/S. 142(1) AND 143(2) OF THE ACT WA S ISSUED ALONG WITH A DETAILED SHOWCAUSE IN THE FOLLOWING TERMS: 1) PLEASE REFER TO THE VARIOUS DETAILS FILED BY T HE AUDITOR OF YOUR COMPANY WHICH ARE TOTALLY INCOMPLETE AND WITHOUT AN Y EVIDENCE AND BASIS. IN THIS CONNECTION YOU ARE REQUESTED TO STATE AS T O HOW HAVE YOU AUTHORIZED THE AUDITOR TO FILE THE DETAILS AS NO AU THORITY LETTER IS SUBMITTED BY YOUR AUDITOR ALONG WITH THE DETAILS SUBMITTED VI DE THEIR LETTER DATED 13- 08-06 FILED ON 13-09-06. IT IS THEREFORE INFORMED T HAT NO DETAILS SHALL BE ENTERTAINED IN FUTURE WITHOUT THE AUTHORITY. WITHOU T PREJUDICE TO THE ABOVE THE DETAILS FILED AT PRESENT HAVE BEEN GONE THROUGH . 2) THE COPIES OF ACCOUNTS THE DEPOSITOR ARE ENCLOS ED BY YOU VIDE POINT NO-5. HOWEVER THEY ARE INCOMPLETE IN SO FAR AS NO PAN ADDRESSES CONFIRMATION SOURCE OF DEPOSIT COPIES OF BANK ACC OUNT ETC HAVE BEEN FILED. IT IS THEREFORE PROPOSED TO ADD THIS CREDITS U/S.68 OF THE I.T. ACT 1961 3) VIDE POINT NO -2 TO THE NOTICE U/S. 142(1) OF T HE I.T. ACT DATED 05/09/06 YOU WERE REQUESTED TO SUBMIT THE DETAILS AS TO THE ADDITIONS TO FIXED ASSETS VIZ. BILLS CHALLANS PUTTING TO USE E TC WERE REQUESTED. VIDE POINT NO.6 TO THE LETTER THE COPIES OF ACCOUNTS OF FIXED ASSETS HAVE BEEN FILED. HOWEVER THE DETAILS AS REQUESTED HAVE NOT B EEN FILED. YOU ARE THEREFORE ONCE AGAIN REQUESTED TO SUBMIT DETAILS OF RECEIPT AND INSTALLATION OF THE ASSETS ALONG WITH THE LABOUR CHARGES INCURRE D L.R.S CHALLANS AS REQUESTED AND COMMENCEMENT OF PRODUCTION ETC FAILI NG WHICH THE DEPRECIATION AT RS.1 22 870/- SHALL BE DISALLOWED A S PROPOSED VIDE NOTICE U/S 142(1) OF THE I.T ACT 1961 DATED 5-9-06. 4) VIDE LETTER DATED 13/8/06 YOU HAVE SUBMITTED TH E LIST OF CREDITORS. HOWEVER MERELY BY FILING THE LIST THE VERACITY OF THE AMOUNT CAN NOT BE EXAMINED. YOU ARE THEREFORE REQUESTED TO SUBMIT THE COMPLETE DETAILS I.E. RECEIPT OF GOODS INCURRING OF EXPENSES BILLS CHAL LANS BOOKS VOUCHERS L.R.S ETC TO SUPPORT THE GENUINENESS OF THIS FIGURE . ITA NO.1262/AHD/08 & C O NO.103/AHD/08 4 5) YOU HAVE SUBMITTED THE LIST OF CURRENT LIABILIT Y BUT WITHOUT SUPPORTINGS. YOU ARE THEREFORE REQUESTED TO SUBMIT THE EVIDENCES IN SUPPORT OF THE LIST FAILING WHICH YOUR LIST CAN NO T BE BELIEVED. 6) YOU HAVE MERELY FILED THE COPY OF ACCOUNTS WITH GANGA HIMALAYA INC BUT WITHOUT SUPPORTING. HOWEVER THE COPY OF AC COUNTS IS DIFFICULT TO BE BELIEVED AS PER REASONS DISCUSSED IN THE NOTICE 142 (1) OF THE L.T. ACT 1961 DATED 5-9-06. 7) YOU HAVE MERELY FILED THE COPIES OF SOME OF THE EXPENSES ACCOUNTS BUT WITHOUT SUPPORTINGS. IN THE ABSENCES OF THE SUP PORTINGS FOR VERIFICATION THE DETAILS FILED BY YOU CANNOT BE BELIEVED. YOU AR E THEREFORE REQUESTED TO SUBMIT THE EVIDENCES SO AS TO VERIFY THE GENUINENES S OF THESE EXPENSES. 8) VIDE POINT NO 14 TO THE LETTER DATED 13/8/06 IT APPEARS THAT YOU HAVE FILED COPY OF CURRENT BANK ACCOUNT WITH SBI RA ILWAY ROAD RISIKESH (DDUN). BY FILING THIS XEROX COPY YOU HAVE TRIED T O JUSTIFY THE DEPOSIT WITH THE SALE TO SOME GANGA HIMALAYA INC. HOWEVER AS AF ORESAID WITHOUT SUPPORTINGS THE DETAILS CAN NOT BE BELIEVED. YOU AR E THEREFORE REQUESTED TO JUSTIFY AS TO WHY THE CREDITS INTO THE BANK ACCO UNTS MAY NOT BE CHARGED TO INCOME TAX AS YOUR INCOME OF PREVIOUS YEAR 2003- 04 U/S.68 OF THE L.T. ACT 1961. SUCH AMOUNT OF CREDITS FROM THE DETAILS FILED BY YOUR AUDITOR WORKS OUT TO RS.73 98 416/-. 9) IT IS FURTHER OBSERVED AT SCHEDULE-8 TO THE BALA NCE SHEET THAT ADVANCES FROM CUSTOMER HAVE BEEN RECEIVED AT RS.31 30 172/- DURING THE YEAR. IN THIS CONNECTION YOU ARE REQUESTED TO FILE THE DETAILS OF RECEIPT OF THESE AMOUNTS ALONG WITH THE DETAILS/PAYMENT/ADJUST MENT OF THE AMOUNT THE PURPOSE OF RECEIPT OF THIS AMOUNT EVIDENCES AL ONG WITH CONFIRMATION COPIES OF BANK ACCOUNT OF CUSTOMERS AND THEIR ASSES SABILITY ALONG WITH PAN NUMBER AND COMPLETE ADDRESSES FOR VERIFICATION. IT IS HEREBY INFORMED THAT IN THE ABSENCE OF VERIFICATION AND TH E DETAILS OR IF DETAILS ARE NOT VERIFIABLE ON RECEIPT THE SAME MAY BE CHARGED T O TAX U/S.68 OF THE I.T. ACT 1961. 10) IN THE ABSENCE OF THE REMAINING DETAILS AS REQU ESTED VIDE NOTICE U/S. 142(1)OF THE I.T. ACT 1961 DATED 5/9/06 THE O BSERVATIONS IN THE SAID NOTICE SHALL BE FOLLOWED. IN RESPONSE THE AUDITORS FILED CERTAIN DETAILS ON 26-09-06 ALONG WITH AN UNSIGNED AUTHORITY LETTER. ACCORDINGLY THE AO C OMPLETED THE ASSESSMENT ON THE BASIS OF MATERIAL ON RECORD WITH THE DISALLOWANCE OF LOSS OF RS. 47 90 180 AS PROPOSED IN THE SHOWCA USE NOTICE DATED ITA NO.1262/AHD/08 & C O NO.103/AHD/08 5 5.9.2006 BESIDES ADDING AMOUNT OF RS. 23 000+ 73 98 416+ 31 30 172 U/S 68 OF THE ACT. 3 ON APPEAL THE LD. CIT(A) DELETED THE ADDITIONS O F RS. 73 98 416 & 31 30 172 IN THE FOLLOWING TERMS: 3 BOTH THE SECOND AND THIRD GROUNDS OF APPEAL ARE LINKED TO EACH OTHER SO THE SUBMISSIONS OF THE LD. AR AND THE FIN DINGS ARE DISCUSSED TOGETHER HEREUNDER. THE SECOND GROUND OF APPEAL IS AGAINST ADDITION OF RS.73 98 416/- U/S 68 AS UNEXPLAINED DEPOSIT. THE A O HAS DISCUSSED THIS AT PAGE-6 OF THE ASSESSMENT ORDER. THE A.O. HAS OBS ERVED THAT FROM THE COPY OF CURRENT BANK ACCOUNT WITH S.B.I. RAILWAY R OAD RISHIKESH FILED BY THE APPELLANT THE APPELLANT HAS TRIED TO JUSTIFY T HE DEPOSIT WITH SALE TO GANGA HIMALAYA INC. HOWEVER AS NO SUPPORTING DETAIL S WERE FILED AND THE APPELLANT DID NOT JUSTIFY THE CREDITS IN THE BANK A CCOUNT AMOUNTING TO RS.73 98 416/- THE A.O. MADE THE ADDITION FOR THE SAME. 4. THE THIRD GROUND OF APPEAL IS AGAINST ADDITION O F RS.31 30 172/- BEING ADVANCE FROM CUSTOMER AS UNEXPLAINED. THE A.O . OBSERVED FROM THE SCHEDULE 8 TO THE BALANCE SHEET THAT THE APPELLANT HAS RECEIVED ADVANCES FROM CUSTOMER OF RS.31 30 172/-. HOWEVER AS THE AP PELLANT DID NOT FILE THE DETAILS OF RECEIPT OF THIS AMOUNT ALONG WITH DETAIL S OF PAYMENT AND ADJUSTMENT OF THE AMOUNT PURPOSE OF THE RECEIPT OF THE SAID AMOUNT AND EVIDENCES ALONG WITH CONFIRMATIONS COPIES OF BANK ACCOUNTS OF CUSTOMERS ALONG WITH PAN AND COMPLETE ADDRESSES FOR VERIFICAT ION THE AO MADE THIS ADDITION U/S. 68 OF THE I.T. ACT. 5. DURING THE COURSE OF APPEAL HEARING THE A.R. SU BMITTED ON 5-3- 2007 COPIES OF VARIOUS ACCOUNTS APPEARING IN THE BA LANCE SHEET AND P & L ACCOUNT AND IN BOOKS OF ACCOUNTS RUNNING TO 117 PAG ES AND SUBMITTED THAT ALL THE DIRECTORS OF THE APPELLANT COMPANY EXCEPT A LADY DIRECTOR WERE RESIDING IN USA AND THE LOCAL DIRECTOR WAS NOT AWAR E OF THE AFFAIRS OF THE COMPANY HENCE THE APPELLANT WAS NOT IN A POSITION TO FURNISH THE INFORMATION TO THE A.O. DURING THE COURSE OF ASSESS MENT PROCEEDINGS. THUS THE DIRECTORS WERE PREVENTED BY REASONABLE AND SUFFICIENT CAUSE AND WERE NOT IN A POSITION TO FURNISH THE INFORMATION C ALLED FOR BY THE A.O. DURING THE COURSE OF ASSESSMENT PROCEEDINGS. ACCORD INGLY A LETTER WAS ISSUED TO THE A.O. ON 6-3-2007 CALLING FOR REMAND R EPORT AFTER EXAMINATION OF VARIOUS DETAILS AND SUBMISSIONS FILED BY THE APP ELLANT AT THE TIME OF APPEAL PROCEEDINGS AND COPIES OF SUBMISSIONS AND DE TAILS FILED BY THE APPELLANT WERE FORWARDED TO THE AO. 5.1 THE A.O. CALLED FOR THE SUPPORTING EVIDENCES FR OM THE APPELLANT ON 9-3- 2007 AND AGAIN ON 19-7-2007. THEREAFTER THE A.O. RE PORTED THAT APPELLANT ITA NO.1262/AHD/08 & C O NO.103/AHD/08 6 WAS NOT AT ALL COOPERATING IN FURNISHING DETAILS AN D EXPLANATIONS EVEN DURING THE REMAND PROCEEDINGS AND THE LETTER OF THE A.O. WAS FORWARDED BY THE JT. CIT BY LETTER DT.7-8-2007. 5.2 ON 16-8-07 THE A.R. SUBMITTED A REPLY SAYING TH AT THE MAIN OBJECT OF THE COMPANY WAS TO SET UP IN INDIA A BOTTLING PLANT OF NATURAL MINERAL WATER AND THE COMPANY ENTERED INTO AN AGREEMENT WITH SUPE R CASSETTES INDUSTRIES LTD. NEW DELHI TO RUN THEIR BOTTLING PL ANT SITUATED AT RISHIKESH ON THE BANK OF RIVER GANGA ON LEASE. THE MAIN OBJEC T OF THE COMPANY WAS TO PRODUCE NATURAL MINERAL WATER FROM HOLY GANGA AN D EXPORT IT TO USA AND THE APPELLANT INCURRED HUGE LOSS DUE TO FAILURE IN MARKETING OF THE MINERAL WATER IN USA AND THE UNIT WAS SHUT DOWN SIN CE F.Y. 2004-05. IT WAS SUBMITTED THAT THE BOOKS OF ACCOUNTS WERE AUDIT ED AND ALL THE VOUCHERS PURCHASE AND SALES BILLS BANK PASS BOOKS AND BANK ACCOUNTS HAVE BEEN VERIFIED BY THE AUDITORS. THIS WAS THE SE COND YEAR OF THE APPELLANT COMPANY. 5.3 THE ID. A.R. REPLIED VIDE LETTER DATED 20-9-200 7 SAYING THAT THE ACCOUNT REGARDING TRANSFER OF MONEY FROM USA TO IND IA FROM GANGA HIMALAYA INC. HAS BEEN DULY CONFIRMED CERTIFIED A ND NOTARIZED BY SHRI AMRIT PATEL DIRECTOR AND COPY OF THE SAME WAS FILE D. AS PER THE SAID ACCOUNT CONFIRMATION GANGA HIMALAYA INC. HAS REMITT ED RS.58 24 292/- BY VARIOUS REMITTANCES THROUGH D.D. FROM USA. DURING T HE YEAR UNDER CONSIDERATION AND THE SAME HAVE BEEN CREDITED IN TH E ACCOUNT OF THE APPELLANT. OUT OF THE SAME THE BILL AMOUNTS HAVE BE EN ISSUED TO THE TUNE OF RS.26 94 120/-.APPEARING IN THE TRADING ACCOUNT UNDER THE HEAD NET SALES AND CLOSING BALANCE OF RS.31 30 172/- IS APPE ARING IN SCHEDULE 8 OF THE BALANCE SHEET UNDER THE HEAD CURRENT LIABILITIE S AND PROVISIONS BEING ADVANCE FROM CUSTOMERS. IT WAS SUBMITTED THAT EVEN THOUGH THESE DETAILS HAVE BEEN FURNISHED BY THE APPELLANT DURING THE COU RSE OF ASSESSMENT PROCEEDINGS BEFORE THE A.O. THE SAID AMOUNT HAS BEE N ADDED WITHOUT PROPERLY APPRECIATING THE MATERIALS FILED BY THE AP PELLANT . THE APPELLANT HAD FURNISHED COPY OF BANK BOOK OF SBI RISHIKESH AS PER PAGES 28 TO 39 OF THE PAPER BOOK WHEREIN ALL THE REMITTANCES HAVE BEEN CREDITED. THE APPELLANT HAD ALSO SUBMITTED LETTER DATED 13-8-2006 BEFORE THE A.O. DURING ASSESSMENT PROCEEDINGS WHEREIN IT HAS BEEN MENTIONE D THAT THE COMPANY WAS INCORPORATED ON 20-12-2002 BY NRI SHRI AMRITLAL VETHALDAS PATEL AND THAT THE PROMOTER HAS ENTERED INTO AN AGREEMENT WIT H SUPER CASSETFES INDUSTRIES LTD. TO RUN THEIR BOTTLING PLANT ON LEA SE AND COPY OF LEASE AGREEMENT WAS ALSO FURNISHED. THE APPELLANT HAS PAI D LEASE RENT OF RS.15 LACS FOR PLANT AND MACHINERY AND RS.6 LACS FOR RENT OF LAND AND BUILDING ON WHICH TDS HAS BEEN MADE. THE TDS DETAILS ARE ON REC ORDS OF THE A.O. IN THE ACCOUNT SUBMITTED BY THE APPELLANT THE DETAILS OF SALARY AND WAGES AND THE TDS MADE FROM SALARIES HAVE BEEN FURNISHED. THE ELECTRICITY BILLS OF RS.5 57 941/- WERE PAID TO U.P. POWER CORPORATIO N AND THE SAME WAS INCURRED FOR RUNNING PLANT AND COPIES OF VOUCHERS W ERE FURNISHED BY THE ITA NO.1262/AHD/08 & C O NO.103/AHD/08 7 A.R. THE TDS HAS ALSO BEEN MADE FROM PAYMENTS MADE TOWARDS SECURITY SERVICE TRANSPORT CLEARING AND FORWARDING AND CON TRACT PAYMENT. AS REGARDS THE ADDITION ON ACCOUNT OF BANK DEPOSITS OF RS.73 99 416/- THE APPELLANT HAD SUPPLIED THE COPY OF BANK ACCOUNT DUR ING THE COURSE OF ASSESSMENT PROCEEDINGS RUNNING INTO PAGES 1 TO 21 A ND THE A.O. HAS ADDED RS.73 58 416/- FOR WHICH THERE IS NO WORKING AND THERE ARE NO CREDITS DURING THE YEAR UNDER CONSIDERATION AS MENT IONED BY THE A.O. ALL THE AMOUNTS CREDITED IN THE BANK ACCOUNT ARE TRANSF ER OF REMITTANCES FROM USA. IN FACT THE APPELLANT HAS CREDITED RS.58 24 29 2/- IN THE BANK ACCOUNT FOR WHICH CONFIRMATION RECEIVED FROM AMRIT PATEL D IRECTOR FROM CHICAGO DULY NOTARIZED HAS BEEN SUBMITTED. REGARDING DISALL OWANCE OF LOSS OF RS.47 90 180/- THE A.R. SUBMITTED THAT THE APPELLA NT HAS GOT DISPUTE WITH THE A.R. OF SUPER CASSETTES INDUSTRIES LTD. THEREF ORE THE DETAILS HAVE NOT BEEN SUPPLIED BY THEM. THE A.R. SUBMITTED THAT CONS IDERING THE DETAILS FURNISHED BY THE APPELLANT DURING THE COURSE OF ASS ESSMENT AND APPELLATE PROCEEDINGS THE LOSS CLAIMED SHOULD BE ALLOWED AS THE BOOKS OF ACCOUNTS ARE AUDITED AND ALL THE EXPENDITURES ARE SUPPORTED BY VOUCHERS AND DETAILS HAVE BEEN FURNISHED AND CERTIFIED BY THE CHARTERED ACCOUNTANT. 5.4 A LETTER WAS ISSUED TO THE A.O. ON 21-9-20 07 BY THIS OFFICE FORWARDING THE CONFIRMATION OF ACCOUNT FROM GANGA H IMALAYA INC. USA CONFIRMING THE COPY OF ACCOUNT OF THE APPELLANT AND EXPLAINING THE SOURCE OF RS.31 30 1727- FOR WHICH ADDITION HAS BEEN MADE IN THE ASSESSMENT ON ACCOUNT OF ADVANCE FROM CUSTOMERS. AS THE CONFIRMAT ION WAS FILED AT THE TIME OF APPEAL HEARING THE A.O. WAS ASKED TO VERIF Y THE SAME AND OFFER HIS COMMENTS. IT WAS ALSO POINTED OUT TO THE A.O. IN RE SPECT OF THE ADDITION OF RS.73 98 4167- ON ACCOUNT OF BANK DEPOSITS IN THE C URRENT ACCOUNT WITH STATE BANK OF INDIA RISHIKESH THAT THE TOTAL DEPOS ITS IN THE BANK ACCOUNT WERE ONLY OF RS.58 24 292/- AND THE APPELLANT HAS E XPLAINED THAT THE SAID AMOUNTS HAVE BEEN RECEIVED FROM GANGA HIMALAYA INC. USA WHICH WAS MARKETING PRODUCTS OF THE APPELLANT IN USA AND THE SAID AMOUNT OF RS.58 24 292/- WAS THE ADVANCE MONEY RECEIVED FROM GANGA HIMALAYA INC. USA FOR WHICH THE APPELLANT HAS GIVEN CONFIRM ATION OF ACCOUNT AT THE TIME OF APPEAL HEARING ALONG WITH LETTER DATED 20-9 -2007. IT WAS ALSO POINTED OUT THAT OUT OF THE DEPOSITS OF RS.58 24 29 2/- RECEIVED FROM GANGA HIMALAYA INC. THE SALE PROCEEDS OF RS.26 94 120/- WERE ADJUSTED AND CLOSING BALANCE OF RS.31 30 1727- HAS BEEN SHOWN BY THE APPELLANT AS ADVANCE FROM CUSTOMERS. IT WAS ALSO POINTED OUT TO THE A.O. VIDE THE ABOVE LETTER THAT INSTEAD OF FIGURE OF RS.73 98 416 /- ADDED BY THE A.O. AS DEPOSITS IN THE CURRENT ACCOUNT WITH SBI THE AMOUN T SHOULD BE RS.58 24 292/- AND THAT THE SAID AMOUNT HAS BEEN CO NFIRMED BY THE PARTY GANGA HIMALAYA'INC. USA. THE A.O. WAS ASKED TO GIV E THE WORKING OF RS.73 98 416/- WHICH HAS BEEN ADDED BY HIM . IT WAS ALSO POINTED OUT TO HIM THAT THE ADDITIONS OF RS.73 98 416/- AND RS.31 30 172/- ARE FOUND TO BE NOT IN ORDER AS THE SOURCE HAS BEEN EXPLAINED. T HE A.O. WAS ASKED TO GIVE HIS COMMENTS BY 10-10-2007 THE A.O. ASKED FUR THER TIME OF 2 ITA NO.1262/AHD/08 & C O NO.103/AHD/08 8 MONTHS WHICH WAS GRANTED VIDE LETTER DATED 2-11-200 7 AND THE A.O. WAS ASKED TO SUBMIT THE REPORT BY 26-11-2007. 5.5 ON 19-11-2007 THE A.O. SUBMITTED A REPORT SAYIN G THAT THE APPELLANT WAS NOT INTERESTED TO SUBMIT THE SPECIFIC DETAILS C ALLED FOR IN RESPECT OF THE ADDITIONS AND THE APPELLANT WAS NOT COOPERATIVE AN D WAS NOT RESPONDING TO ANY OF THE LETTERS ISSUED DURING THE COURSE OF R EMAND PROCEEDINGS THEREFORE THE ASSESSMENT ORDER BE UPHELD. AGAIN LE TTER WAS ISSUED BY THIS OFFICE ON 28-11-2007 TO JCIT RANGE-4 POINTING OUT T HAT THE A.O. SHOULD GO THROUGH THE PAPERS AND SUBMIT A REPORT WITHIN 15 DA YS AS THE ENTIRE CREDITS IN THE BANK ACCOUNT HAVE BEEN ADDED AS WELL AS ADVA NCES FROM THE CUSTOMERS. THE A.O. HAS AGAIN POINTED OUT ON 7-12-2 007 THAT THE APPELLANT WAS NOT COOPERATING. HOWEVER TILL 25-1-2 008 NO REPORT WAS SUBMITTED BY THE A.O. ALTHOUGH THE A.O. WAS ASKED T O SUBMIT A REPORT BY 25.1.2008 AND APPELLANT'S ADVOCATE WAS REQUESTED TO EXPLAIN THE FACTS AND HIS SUBMISSION TO THE A.O. WITH PRODUCTION OF ORIGI NAL DOCUMENTS VIDE LETTER DATED 7-1-2008. BUT NO REPORT HAS BEEN RECEIVED. TH EREFORE THE APPEAL IS DECIDED ON THE BASIS OF THE DETAILS FILED BY THE A. R. 6. I HAVE CONSIDERED THE SUBMISSIONS OF THE A.R. CA REFULLY AND GONE THROUGH THE DETAILS FILED BY THE ID. A.R. THE DETAI LS FILED BY THE ID. A.R. WERE FORWARDED FOR HIS COMMENTS BUT NO COMMENTS WE RE FURNISHED. THE A.O. DID NOT GIVE THE BASIS WORKING OF RS.73 98 416 /- WHICH HAS BEEN ADDED ON ACCOUNT OF BANK DEPOSITS IN THE CURRENT AC COUNT WITH STATE BANK OF INDIA RISHIKESH. I HAVE PERUSED THE COPY OF BAN K ACCOUNT WITH STATE BANK OF INDIA RISHIKESH FILED BY THE ID. A.R. AT P AGES 28 TO 39 OF THE PAPER BOOK FILED BY THE ID. A.R. I ALSO FIND THAT THE TOT AL CREDITS IN THE ABOVE BANK ACCOUNT ARE OF RS.58 24 292/- ONLY AND NOT OF RS.73 98 416/- AS CONSIDERED BY THE A.O. AS REGARDS THE CREDITS IN TH E BANK ACCOUNT OF RS.58 24 292/- AND ADVANCE FROM THE CUSTOMERS OF RS .31 30 172/- AS PER THE CONFIRMATION FROM GANGA HIMALAYA INC. FILED BY THE A.R. AT PAGE-5 THE APPELLANT HAD RECEIVED ADVANCE FROM GANGA HIMALAYA INC. TO THE TUNE OF RS.58 24 292/- AGAINST WHICH THE SALES MADE DURING THE YEAR ARE OF RS.26 94 120/- WHICH HAVE BEEN ADJUSTED AND THE BAL ANCED AMOUNT OUTSTANDING IS CREDIT BALANCE OF RS.31 30 172/- AS ADVANCE FROM CUSTOMERS. THE MONEY HAS BEEN RECEIVED BY TT FAX AN D DD FROM GANGA HIMALAYA INC. USA AND DEPOSITED IN THE CURRENT ACC OUNT OF THE APPELLANT WITH STATE BANK OF INDIA RISHIKESH. THE TOTAL AMOU NT DEPOSITED IN THE ABOVE ACCOUNT WITH STATE BANK OF INDIA COMES TO RS. 58 24 292/- AND IT IS NOT UNDERSTOOD AS TO HOW THE A.O. HAS MADE ADDITION OF RS.73 98 416/-. THE A.O. HAS NOT MADE INQUIRIES EVEN AFTER THE CONF IRMATION HAS BEEN FILED BY THE APPELLANT. THE A.O. HAS NOT MADE INQUIRY FRO M THE BANK REGARDING THE SOURCE OF DEPOSITS. THE CONFIRMATION FILED BY T HE ID. A.R. AND SUBMISSIONS AND DETAILS FILED BY THE A.R. CLEARLY S HOW THAT MONEY HAS BEEN RECEIVED FROM GANGA HIMALAYA INC. USA AND THE REFORE THE SOURCE OF DEPOSIT IDENTITY OF THE DEPOSITOR AND THE GENUI NENESS OF THE TRANSACTION ITA NO.1262/AHD/08 & C O NO.103/AHD/08 9 IS PROVED. THE AMOUNTS RECEIVED ARE ADVANCES CUSTOM ER GANGA HIMALAYA INC. AND NOT STRICTLY CASH CREDIT. AS THE SOURCE OF DEPOSITS AS WELL AS ADVANCE FROM CUSTOMERS IS EXPLAINED THE ADDITIONS MADE TO THE TUNE OF RS.31 30 172/- AS WELL AS RS.73 98 416/- ARE FOUND TO BE NOT PROPER AND THE SAME ARE THEREFORE DELETED. 7. AS REGARDS THE LOSS FROM BUSINESS CLAIMED TO THE TUNE OF RS.47 90 180/- THE APPELLANT HAS NOT TAKEN SPECIFIC GROUND IN GROUNDS OF APPEAL AND FURTHER APART FROM LEASE AGREEMENT IN SU PPORT OF CLAIM OF LEASE RENT AND COPIES OF ELECTRICITY BILLS THE LD. AR HA S NOT FURNISHED EVIDENCES IN SUPPORT OF OTHER EXPENSES THIS GROUND IS THEREFORE DISMISSED. 4. THE REVENUE IS NOW IN APPEAL BEFORE US AGAINST THE AFORESAID FINDINGS OF THE LD. CIT(A). THE LD. DR WHILE INVITI NG OUR ATTENTION TO THE ASSESSMENT ORDER AND REMAND REPORTS DATED 2.7.2 007 & 7.8.2007 OF THE AO CONTENDED THAT DUE TO NON COMPLIANCE BY T HE ASSESSEE THE AO HAD NO ALTERNATIVE BUT TO COMPLETE EXPARTE A SSESSMENT. EVEN WHEN ADDITIONAL EVIDENCE WAS SUBMITTED BEFORE THE LD. CIT(A) THE ASSESSEE DID NOT SUBMIT THE RELEVANT DETAILS SOUGHT BY THE AO DURING THE REMAND PROCEEDINGS . IN THESE CIRCUMSTANCES ES PECIALLY WHEN THE ASSESSEE DID NOT COOPERATE WITH THE AO EITHER D URING THE ASSESSMENT PROCEEDINGS OR IN REMAND PROCEEDINGS TH E LD. CIT(A) WAS NOT JUSTIFIED IN ADMITTING ADDITIONAL EVIDENCE IN CONTRAVENTION OF RULE 46A OF THE IT RULES 1962 AND THEREBY DELETING THE ADDITIONS. ON THE OTHER HAND THE LD. AR ON BEHALF OF THE ASS ESSEE REITERATED THEIR SUBMISSIONS BEFORE THE LD. CIT(A). THOUGH THE LD. AR REFERRED TO FEW DECISIONS IT WAS NOT DEMONSTRATED AS TO HOW THESE DECISIONS WERE RELEVANT TO THE FACTS AND ISSUE BEFORE US. 5. WE HAVE HEARD BOTH THE PARTIES AND GONE TH ROUGH THE FACTS OF THE CASE. UNDISPUTEDLY DUE TO NON-COMPLIANCE OF VA RIOUS NOTICES ISSUED BY THE AO ASSESSMENT WAS COMPLETED ON THE BASIS OF MATERIAL ON RECORD AND FOR WANT OF NECESSARY DETAI LS/DOCUMENTS WHICH WERE LATER PLACED BEFORE THE LD. CIT(A). IN T HESE CIRCUMSTANCES THE ASSESSEE ADMITTEDLY SUBMITTED AD DITIONAL ITA NO.1262/AHD/08 & C O NO.103/AHD/08 10 EVIDENCE BEFORE THE LD. CIT(A) AS IS APPARENT FROM A MERE GLANCE AT THE PAPER BOOK FILED BEFORE US EVEN WHEN NO SUCH F ORMAL REQUEST TO THE LD. CIT(A) IN TERMS OF RULE 46A OF THE IT RULES 1962 HAS BEEN BROUGHT TO OUR NOTICE. THE DOCUMENTS PLACED AT PAGE S 4-5 18 TO 22 25 AND 90 TO 124 WERE NEVER SUBMITTED BEFORE THE AO NOR ANY REASONS HAVE BEEN ATTRIBUTED FOR THEIR NON-SUBMISSI ON. THOUGH THE LD. CIT(A) RELIED UPON THESE DOCUMENTS THE IMPUGN ED ORDER DOES NOT REVEAL ANY REASONS FOR ADMITTING THE ADDITIONAL EVIDENCE EVEN WHEN THESE DOCUMENTS WERE FORWARDED TO THE AO FOR H IS REPORT. IN THE REMAND PROCEEDINGS THE AO AGAIN SOUGHT CERTAIN DETAILS FROM THE ASSESSEE. AS IS APPARENT FROM THE REMAND REPORT S DATED 2.7.2007 & 7.8.2007 OF THE AO THE ASSESSEE DID NOT SUBMIT THE RELEVANT DETAILS . THOUGH THE AO SUBMITTED ANOTHER REPORT DATED 7.12.2007 TO THE LD. CIT(A) THE SAID REPORT HAS NO T BEEN PLACED BEFORE US. UNDISPUTEDLY THE LD. CIT(A) DELETED THE ADDITION RELYING INTER ALIA ON THE AFORESAID DOCUMENTS EVEN WHEN HE WAS FU LLY AWARE THAT ASSESSMENT HAD BEEN COMPLETED IN AN EXPARTE MANNER AND THE ASS ESSEE DID NOT SUBMIT THE NECESSARY DETAILS/DOCUMENTS BEFORE THE AO. IN NUTSH ELL THE LD. CIT(A) DELETED THE ADDITIONS ON THE BASIS OF ADDITIONAL EVIDENCE S UBMITTED BEFORE HIM WITHOUT FOLLOWING THE PROCEDURE LAID DOWN UNDER RULE 46A OF THE IT RULES 1962. AS IS APPARENT FROM THE FACTS OF THE CASE THE LD. CIT(A) ARRIVED AT THE CONCLUSIONS WITHOUT ASCERTAINING AS TO WHETHER OR NOT THE ASSES SEE WAS PREVENTED BY SUFFICIENT CAUSE FROM SUBMITTING THE AFORESAID ADDI TIONAL DOCUMENTS/INFORMATION BEFORE THE AO AS PER PROVISIONS OF RULE 46A OF THE IT RULES 1962 NOR THE LD. CIT(A) SEEMS TO HAVE RECORDED ANY REASONS BEFORE AD MITTING THE AFORESAID DOCUMENTS IN EVIDENCE. HERE WE MAY HAVE A LOOK AT T HE RELEVANT PROVISIONS OF RULE 46A OF THE IT RULES 1962 WHICH READS AS UNDER : (1) THE APPELLANT SHALL NOT BE ENTITLED TO PRODUCE BEFORE THE DEPUTY COMMISSIONER (APPEALS) OR AS THE CASE MAY BE THE COMMISSIONER (APPEALS) ANY EVIDENCE WHETHER ORAL OR DOCUMENTARY OTHER TH AN THE EVIDENCE PRODUCED BY HIM DURING THE COURSE OF PROCEEDINGS BEFORE THE ASS ESSING OFFICER EXCEPT IN THE FOLLOWING CIRCUMSTANCES NAMELY:-- ITA NO.1262/AHD/08 & C O NO.103/AHD/08 11 (A) WHERE THE ASSESSING OFFICER HAS REFUSED TO ADMI T EVIDENCE WHICH OUGHT TO HAVE BEEN ADMITTED;OR (B) WHERE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING THE EVIDENCE WHICH HE WAS CALLED UPON TO PRODUCE BY THE ASSESSING OFFICER; OR (C) WHERE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING BEFORE THE ASSESSING OFFICER ANY EVIDENCE WHICH IS RELEVAN T TO ANY GROUND OF APPEAL; OR (D) WHERE THE ASSESSING OFFICER HAS MADE THE ORDER APPEALED AGAINST WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE APPELLANT TO A DDUCE EVIDENCE RELEVANT TO ANY GROUND OF APPEAL. (2) NO EVIDENCE SHALL BE ADMITTED UNDER SUB-RULE (1 ) UNLESS THE DEPUTY COMMISSIONER (APPEALS) OR AS THE CASE MAY BE THE C OMMISSIONER (APPEALS) RECORDS IN WRITING THE REASONS FOR ITS ADMISSION. (3)THE DEPUTY COMMISSIONER(APPEALS) OR AS THE CA SE MAY BE THE COMMISSIONER (APPEALS) SHALL NOT TAKE INTO ACCOUNT ANY EVIDENCE PRODUCED UNDER SUB-RULE (1) UNLESS THE INCOME-TAX OFFICER HA S BEEN ALLOWED A REASONABLE OPPORTUNITY (A) TO EXAMINE THE EVIDENCE OR DOCUMENT OR TO CROSS-EXAMINE THE WITNESS PRODUCED BY THE APPELLANT OR (B) TO PRODUCE ANY EVIDENCE OR DOCUMENT OR ANY WITN ESS IN REBUTTAL OF THE ADDITIONAL EVIDENCE PRODUCED BY THE APPELLANT (4) NOTHING CONTAINED IN THIS RULE SHALL AFFECT THE POWER OF THE DEPUTY COMMISSIONER (APPEALS) OR AS THE CASE MAY BE THE COMMISSIONER (APPEALS) TO DIRECT THE PRODUCTION OF ANY DOCUMENT OR THE EXAMI NATION OF ANY WITNESS TO ENABLE HIM TO DISPOSE OF THE APPEAL OR FOR ANY OTH ER SUBSTANTIAL CAUSE INCLUDING THE ENHANCEMENT OF THE ASSESSMENT OR PENALTY (WHETH ER ON HIS OWN MOTION OR ON THE REQUEST OF THE ASSESSING OFFICER) UNDER CLAUSE (A) OF SUB SECTION (1) OF SECTION 251 OR THE IMPOSITION OF PENALTY UNDER SECT ION 271..' 5.1 IT IS EVIDENT FROM THE AFORESAID PROVISIONS THAT THE LD. CIT(A) CAN TAKE INTO ACCOUNT ANY EVIDENCE PRODUCED UNDER SUB-R. (1)(B) & (C) OF RULE 46A OF THE IT RULES 1962 IF THE ASSESSEE WAS PREVENTED BY SUFF ICIENT CAUSE .IN THE CASE UNDER CONSIDERATION THE ASSESSEE PLACED BEFORE THE LD. CIT(A) THE AFORESAID DOCUMENTS PLACED IN PAGES 4-5 18 TO 22 25 AND 90 TO 124 OF THE PAPER BOOKS AND ADMITTEDLY THE SAID DETAILS/DOCUMENTS WE RE NEVER SUBMITTED BEFORE THE AO. MOREOVER THERE IS NOTHING TO SUGGEST AS TO WHETHER OR NOT THE LD. CIT(A) RECORDED ANY REASONS BEFORE ADMITTING THE AFORESAI D DOCUMENTS BY WAY OF ADDITIONAL EVIDENCE. IN THIS CONNECTION HONBLE JU RISDICTIONAL HIGH COURT IN THEIR ITA NO.1262/AHD/08 & C O NO.103/AHD/08 12 DECISION IN THE CASE OF CIT VS. VALIMOHMED AHMEDBHA I 134 ITR 214(GUJ) WHILE REFERRING TO PROVISIONS OF SEC. 46A OF THE IT RULES 1962 OBSERVED THAT NOTICE OF APPEAL ISSUED BY AN AAC CANNOT BE EQUATED WITH NOT ICE OF A FUTURE APPLICATION TO LEAD ADDITIONAL EVIDENCE WHICH NO ONE COULD HAVE AN TICIPATED OR REASONABLY FORESEEN. HONBLE HIGH COURT HELD THAT ORDINARILY THE APPEAL WOULD BE DECIDED ON THE EVIDENCE RECORDED IN THE COURSE OF ASSESSMEN T PROCEEDINGS. SINCE IN THE CASE UNDER CONSIDERATION THE ADDITIONAL EVIDENCE/D OCUMENTS FILED BEFORE THE LEARNED CIT(A) HAVE BEEN ADMITTED WITHOUT RECORD ING ANY FINDINGS AS TO WHETHER OR NOT THE ASSESSEE WAS PREVENTED BY SUFFIC IENT CAUSE FROM PRODUCING THE SAID EVIDENCE/DOCUMENTS BEFORE THE AO AND WITHO UT RECORDING ANY REASONS IN TERMS OF RULE 46A(2) OF THE IT RULES 1962 WE FIND MERIT IN THE UNDISPUTED CONTENTIONS OF THE LEARNED DR AND THEREFORE IN THE INTEREST OF JUSTICE AND FAIR PLAY VACATE THE FINDINGS OF THE LD. CIT(A) AND RES TORE THE ISSUES RAISED IN GROUND NOS.1 TO 3 IN THE APPEAL OF THE REVENUE TO HIS FILE WITH THE DIRECTIONS TO FOLLOW THE MANDATE IN TERMS OF RULE 46A OF THE IT RULES 1962 AS ALSO PRINCIPLES OF NATURAL JUSTICE AND THEREAFTER DISPOSE OF THE MATTER IN ACCORDANCE WITH LAW AFTER ALLOWING SUFFICIENT OPPORTUNITY TO BOTH THE PARTIES . WITH THESE DIRECTIONS GROUND NOS. 1 TO 3 RAISED IN THE APPEAL ARE DISPOSED OF A S INDICATED HEREINBEFORE. 6. COMING NOW TO GROUND NOS.1 4& 5 IN THE CO IN RELATION TO LOSS OF RS.47 90 180/- AS IS EVIDENT FROM THE IMP UGNED ORDER AND THE GROUNDS OF APPEAL RAISED BEFORE THE LD. CIT(A) NO SUCH GROUND WAS EVER RAISED BEFORE THE LD. CIT(A). BEFORE THE L D. CIT(A) THE ASSESSEE ADMITTED THAT DUE TO DISPUTE WITH M/S SUPE R CASSETTE INDUSTRIES LTD. THE ASSESSEE COULD NOT OBTAIN THE RELEVANT DETAILS OF SAID LOSS. IN THESE CIRCUMSTANCES AND THE FACT THAT THE ASSESSEE DID NOT RAISE ANY GROUND IN RELATION TO THE SAID LOSS B EFORE THE LD. CIT(A) THE LD. CIT(A) DISMISSED THE CLAIM OF THE A SSESSEE. 7. THE LD. AR ON BEHALF OF THE ASSSESSEE NOW THROUGH THE AFORESAID GROUNDS IN THE CO MADE A CLAIM EVEN WHE N NO SUCH ITA NO.1262/AHD/08 & C O NO.103/AHD/08 13 GROUND WAS RAISED BEFORE THE LD. CIT(A). ON THE OTH ER HAND THE LD. DR SUPPORTED THE CONCLUSION OF THE LD. CIT(A) 8. AS IS APPARENT FROM THE IMPUGNED ORDER AND THE GROUNDS OF APPEAL RAISED BEFORE THE LD. CIT(A) THE ASSESSEE D ID NOT RAISE ANY GROUND RELATING TO THEIR CLAIM FOR LOSS OF RS.47 90 180/- BEFORE THE LD. CIT(A).IN THESE CIRCUMSTANCES SUCH ISSUES NOW RAI SED BEFORE US DO NOT EMERGE FROM THE IMPUGNED ORDER OF THE LD. CIT(A). IF THERE IS NO DECISION OF THE FIRST APPELLATE AUTHORITY AND NO GROUND IS TAKEN I N THE APPEAL FILED BEFORE HIM ON A PARTICULAR PORTION OF THE ASSESSMENT IT CAN NOT BE SAID THAT THE ASSESSEE IS STILL AGGRIEVED BY THE DECISION OF THE FIRST APPELLATE AU THORITY IN NOT GRANTING SUCH RELIEF TO HIM. HONBLE JURISDICTIONAL HIGH COURT IN THEIR DECISION IN CIT VS. KARAMCHAND PREMCHAND PRIVATE LTD. 74 ITR 254(GUJ) HELD THAT T HE TRIBUNAL IS NOT ENTITLED TO ALLOW THE ASSESSEE TO AGITATE AN ISSUE WHICH WAS NO T RAISED BEFORE THE FIRST APPELLATE AUTHORITY AND THERE IS NO DECISION OF SUCH AUTHORITY ON THE ISSUE EVEN IF THE ASSESSEE HAS RAISED THE ISSUE IN THE M EMORANDUM OF APPEAL AND SEEKS TO AGITATE IT. SIMILARLY IN SMT. ARUDHANTI BA LKRISHNA VS. ITO 103 ITR 763(GUJ) THE HONBLE JURISDICTIONAL HIGH COURT HEL D THAT THE ASSESSEE IS NOT ENTITLED TO QUESTION THE DECISION OF THE OFFICER ON A POINT IN AN APPEAL TO THE TRIBUNAL WHICH WAS NOT RAISED OR DECIDED BY THE AP PELLATE ASSISTANT COMMISSIONER. SIMILAR VIEW WAS TAKEN IN HUKAMCHAND & MANNALAL & C O. 126 ITR 251(MP) AND UGAR SUGAR WORKS LTD. VS. CIT 141 I TR 326(BOM.).SINCE ISSUES RAISED IN AFORESAID GROUND NOS 1 4 & 5 IN T HE CO DO NOT EMERGE FROM THE IMPUGNED ORDER NOR HAVE BEEN RAISED BEFORE THE LD. CIT(A) ACCORDINGLY IN THE LIGHT OF AFORESAID DECISIONS OF THE HONBLE JURISDI CTIONAL HIGH COURT WE HAVE NO ALTERNATIVE BUT TO DISMISS THE SAID GROUNDS . 9. NEXT GROUND NO.2 IN THE CO RELATED TO ADDITION O F RS.23 000. THE AO ADDED THE AMOUNT U/S 68 OF THE ACT SINCE THE ASSESSEE DID NOT FURNISH THE RELEVANT DETAILS SOUGHT BY HIM IN TERMS OF NOTICE U/S 142(1) OF THE ACT. EVEN BEFORE THE LD. CIT(A) NO DE TAILS WERE FURNISHED. ACCORDINGLY THE LD. CIT(A) UPHELD THE A DDITION. ITA NO.1262/AHD/08 & C O NO.103/AHD/08 14 10. THE ASSESSEE IS NOW DISPUTING THE ADDITION IN THE CO. THE LD. AR ON BEHALF OF THE ASSESSEE DID NOT SUBMIT ANY MAT ERIAL BEFORE US ESTABLISHING EITHER IDENTITY OR CREDITWORTHINESS O F THE SAID CREDITOR NOR ESTABLISHED GENUINENESS OF THE TRANSACTION. IN THESE CIRCUMSTANCES ESPECIALLY WHEN THERE IS NO MATERI AL BEFORE US SO AS TO ENABLE US TO TAKE A DIFFERENT VIEW IN THE MAT TER WE ARE NOT INCLINED TO INTERFERE. THEREFORE GROUND NO.2 IN TH E CO IS DISMISSED. 11. GROUND NOS. 4 & 5 IN THE APPEAL OF THE REVENUE BEING MERE PRAYER DO NOT REQUIRE ANY SEPARATE ADJUDICATION WH ILE GROUND NO. 3 IN THE CO BEING SUPPORTIVE OF THE ORDER OF THE LD. CIT(A) AND NO ADDITIONAL GROUND HAVING BEEN RAISED IN TERMS OF TH E RESIDUARY GROUND NO.6 IN THE CO ALL THESE GROUNDS ARE DISMIS SED. 12. IN THE RESULT APPEAL OF THE REVENUE IS ALLOWE D FOR STATISTICAL PURPOSES WHILE CO IS DISMISSED. ORDER PRONOUNCED IN THE COURT TODAY ON 9-09-2010 SD/- SD/- (MUKUL SHRAWAT) JUDICIAL MEMBER (A N PAHUJA) ACCOUNTANT MEMBER DATE : 9 -09-2010 COPY OF THE ORDER FORWARDED TO: 1. GANGA HIMALAYA BOTTLING PVT. LTD. 804 SARAP BU ILDING OPP. NAVJEEVAN PRESS ASHRAM ROAD AHMEDABAD 2. THE ITO WARD-4(1) AHMEDABAD 3. CIT CONCERNED 4. CIT(A)-VIII AHMEDABAD 5. DR BENCH-D ITAT AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ITA NO.1262/AHD/08 & C O NO.103/AHD/08 15 ASSISTANT REGISTRAR ITAT AHMEDABAD