ASST CIT 5(3)(2), MUMBAI v. WORLD TRADE PARK LTD, JAIPUR

ITA 1665/MUM/2017 | 2010-2011
Pronouncement Date: 29-11-2019 | Result: Dismissed

Appeal Details

RSA Number 166519914 RSA 2017
Assessee PAN AACCR8969E
Bench Mumbai
Appeal Number ITA 1665/MUM/2017
Duration Of Justice 2 year(s) 8 month(s) 21 day(s)
Appellant ASST CIT 5(3)(2), MUMBAI
Respondent WORLD TRADE PARK LTD, JAIPUR
Appeal Type Income Tax Appeal
Pronouncement Date 29-11-2019
Appeal Filed By Department
Order Result Dismissed
Bench Allotted Not Allotted
Tribunal Order Date 29-11-2019
Last Hearing Date 23-07-2018
First Hearing Date 23-07-2018
Assessment Year 2010-2011
Appeal Filed On 09-03-2017
Judgment Text
IN THE INC OME TAX APPELLATE TRIBUNAL G BENCH MUMBAI BEFORE SHRI S . RIFAUR RAHMAN AM & SHRI RAM LAL NEGI JM ./ I.T.A. NO . 1665 1666 & 1667 / MUM/ 2017 ( / ASSESSMENT YEAR: 2010 - 11 TO 2012 - 13 ) ACIT 5 (3)(2) ROOM NO. 573 AAYAKAR BHAVAN 5 TH FLOOR MUMBAI - 400 020 / VS. M/S WORLD TRADE PARK LTD. (FORMERLY KNOWN AS R. F. PROPERTIES & TRDG. LTD.) WORLD TRADE PARK JAWAHARLAL NEHRU MARG MALVIYA NAGAR JAIPUR - 302017 ./ ./ PAN NO. AACCR 8969 E ( / AP PELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI V. VINOD KUMAR DR / RESPONDENTBY : SHRI ASEEM THAKKAR AR / DATE OF HEARING : 24 .09 .201 9 / DATE OF PRONOUNCEMENT : 29.11.2019 / O R D E R PER S. RIFAUR RAHMAN ACCOUNTANT MEMBER : THE PRESENT THREE APPEAL S HAVE BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. COMMIS S IONER OF INCOME TAX (APPEALS) - 10 IN SHORT REFERRED AS LD. CIT(A) MUMBAI DATED 21.11.16 2 I.T.A. NO. 1665 1666 & 1667/MUM/2017 M/S WORLD TRADE PARK LTD FOR A SSESSMENT YEAR (IN SHORT A Y ) : 2010 - 11 TO 2012 - 13 RESPECTIVELY. 2 . ALL THE APPEALS ARE HEARD TOGETHER AND ALL THE FACTS IN THESE APPEALS ARE SIMILAR FOR THE SAKE OF CONVENIENCE IT IS DISPOSED OF F BY THIS COMMON ORDER. TO DISPOSE OF F THESE APPEALS WE HAVE TAKEN FACTS FROM AY 201 0 - 11 BEARING ITA NO. 1665/MUM/17 . 3. THE BRIEF FACTS OF THE CASE ARE THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2010 11 ON 15 . 10 . 2010 DECLARING TOTAL INCOME AT RS. NIL. THE ORIGINAL ORDER UNDER SECTION 143(3) WAS PASSED ON 13. 03 . 2013 AND THE TOTAL INCOME WAS ASSESSED AT RS. 8 40 510/ - . SUBSEQUENTLY THE ASSESSMENT WAS REOPENED AND NO TICE UNDER SECTION 148 DATED 14. 03 . 2014 WAS ISSUED AND SERVED ON THE ASSESSEE. IN RESPONSE AR OF THE ASSESSEE FILED A LETTER DATED 20.03.2014 TO TREAT THE ORIGINAL WRITTEN FILED BY THE ASSESSEE AS A WRITTEN FILED IN RESPONSE TO NOTICE UNDER SECTION 148. FURTHER AR OF THE ASSESSEE REQUESTED THE AO TO SUPPLY THE REASONS FOR THE OPENING OF ASSESSMENT AND THE SAME WAS GIVEN TO THE ASSESSEE. FOR THE SAKE OF CL ARITY IT IS REPRODUCED BELOW : - 3 I.T.A. NO. 1665 1666 & 1667/MUM/2017 M/S WORLD TRADE PARK LTD 'IN THE ABOVE MENTIONED CASE RETURN OF INCOME HAS BEEN E - FILED ON 15.10.2010 DECLARING TOTAL INCOME AT RS. NIL - . SCRUTINY ASSESSMENT U/S 143(3) HAS BEEN COMPLETED ON 13.03.2013 AT A TOTAL INCOME OF RS. 8 40 510/ - . A SURVEY A CTION U/S 133A HAS BEEN CONDUCTED IN THIS CASE ON 17.10.2013. DURING THE COURSE OF SURVEY ACTION BOOKS OF ACCOUNT OF THE ASSESSEE COMPANY WAS SCRUTINIZED AND IT WAS SEEN THAT THERE ARE NUMEROUS CASH ENTRIES IN THE BOOKS. ON FURTHER EXAMINATION IT WAS FOUND THAT THE ASSESSEE HAS BEEN DEPOSITING CASH IN DIFFERENT BANK ACCOUNTS OF THE COMPANY. DURING THE F. Y. 2009 - 10 RELEVANT TO AY. 2010 - 11 THE ASSESSEE HAD DEPOSITED AN AMOUNT OF RS. 2 80 75 000/ - INTO DIFFERENT BANK ACCOUNTS. THE ASSESSEE HAS SUBMITTED THAT THE CASH DEPOSIT IS OUT OF CASH WITHDRAWAL FROM DIFFERENT BANK ACCOUNTS. HOWEVER THIS IS NOT AN ACCEPTABLE REASON FOR CASH DEPOSIT. THIS IS HIGHLY UNUSUAL FOR THE ASSESSEE COMPANY TO WITHDRAW CASH AND DEPOSIT THE SAME. DEALING IN CASH IS NOT THE BUSINESS OF THE ASSESSEE. THE ASSESSEE IS IN THE BUSINESS OF CONSTRUCTION AND DEVELOPMENT. IN VIEW OF THE ABOVE FACTS OF THE CASE I HAVE REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR THE A.Y. 2010 - 11 AND ACCORDINGLY 4 I.T.A. NO. 1665 1666 & 1667/MUM/2017 M/S WORLD TRADE PARK LTD ASSESSMENT REQUIRE S TO BE RE - OPENED U/S 147 OF THE INCOME - TAX ACT 1961. 4. DURING REASSESSMENT PROCEEDING THE AR OF THE ASSESSEE SUBMITTED CASH FLOW STATEMENT IS UNDER: AMOUNT (IN RS.) OPENING CASH BALANCE AS PER CASH BOOK 43 86 068 CASH WITHDRAWALS FROM VARIOUS BANK ACCOUNTS AS PER BANK STATEMENTS 82 54 762 BOOKING ADVANCE RECEIVED FROM PARTIES 1 84 50 000 LESS: - UTILIZATION FOR DAILY EXPENSES - 30 05 525 LESS: - REDEPOSIT IN VARIOUS BANK ACCOUNTS - 2 80 75 000 CASH BALANCE AT THE END OF YEAR 10 305 5. FURTHER HE SUBMITTED A LIST OF NAMES AND ADDRESSES OF 34 PERSONS WHO HAD BOOKED THE PROPERTY IN THE COMPANY. ACCORDINGLY AO ISSUED NOTI CE UNDER SECTION 133(6) OF THE A CT TO THE ABOVE SAID PARTIES TO CONFIRM THE ABOVE TRANSACTIONS. IN MOST OF THE CASE S NOTICES WERE RETURNED UNSERVED BY THE POSTAL 5 I.T.A. NO. 1665 1666 & 1667/MUM/2017 M/S WORLD TRADE PARK LTD AUTHORITIES. F URTHER ASSESSING OFFICER OBSERVED THAT FEW OF THE PARTIES DENIED ABOUT TRANSACTIONS AND HE HAS LISTED THE PARTIES WHO HAS DENIED I.E. MR DAMODAR GOYAL SHANKAR LAL AGARWAL AND VINOD KUMAR. FUR THER ONE OF THE PARTY WHO HAD RECEIVED THE SHOW CAUSE NOTICE HAD CONFIRMED THAT HE HAS SETTLED THE TOTAL PURCHASE CONSIDERATION BY WAY OF CHEQUE ONLY. 6. SUBSEQUENTLY ASSESSEE FILED A DETAILED SUBMISSION OPPOSING THE REASSESSMENT PROCEEDINGS AS BAD IN LA W AND FURTHER SUBMITTED THAT THE CASH DEPOSIT OF RS. 2 80 75 000/ - INCLUDES OPENING CASH IN HAND OF RS. 43 86 068/ - CASH WITHDRAWAL OF RS. 82 54 762/ - AND BOOKING ADVANCE OF RS. 1 84 50 000/ - RECEIVED DURING THE YEAR. LD AR OF THE ASSESSEE BY RELYING ON T HE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CHUG MAL RAJPAL V. P CHALIHA 79 ITR 603 WHEREIN IT WAS HELD THAT REASSESSMENT IS NOT MEANT FOR ENQUIRY AND REQUESTED THE REASSESSMENT PROCEEDINGS BE DROPPED. 7. AFTER CONSIDERING THE SUBMISSIONS OF THE A SSESSEE AND BY RELYING IN THE CASE OF ROSHAN D HATTI (107 ITR 938 (SC)) KALE KHAN MOHAMMED HANIF (50 ITR 1 6 I.T.A. NO. 1665 1666 & 1667/MUM/2017 M/S WORLD TRADE PARK LTD (SC)) DISMISSED THE CONTENTION OF THE ASSESSEE AND CONFIRMED THE ADDITION TO THE EXTENT OF THE CASH NOT EXPLAINED BY THE ASSESSEE I.E. TO THE EX TENT OF THE BOOKING AMOUNT RECEIVED FROM THE CUSTOMERS OF THE ASSESSEE UNDER SECTION 68 OF THE ACT. 8. AGGRIEVED WITH THE ABOVE ORDER ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A) AND FILED DETAILED SUBMISSIONS. AFTER CONSIDERING THE SUBMISSIONS OF THE A SSESSEE LD CIT(A) ALLOWED THE APPEAL OF THE ASSESSEE WITH THE FOLLOWING FINDING S : 4.2 I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS OF THE ID.AR. I HAVE ALSO GONE THROUGH THE DECISIONS RELIED ON BY THE AO AND THE ID.AR. AS SEEN FROM TH E FACTS OF THE CASE THERE WAS A SURVEY U/S 133A ON 17/10/2013 IN THE OFFICE PREMISES OF THE APPELLANT COMPANY AND SRI ANUP BARTARIA THE MANAGING DIRECTOR OF THE APPELLANT COMPANY HAS CLEARLY ADMITTED BEFORE THE SURVEY PARTY IN THE STATEMENT RECORDED U/S 133A THAT HE COULD NOT EXPLAIN CASH DEPOSITS TO THE EXTENT OF 11.26 CR. OUT OF TOTAL CASH DEPOSITS OF RS.41.02 CR. DEPOSITED IN THE BANKS OVER A PERIOD OF TIME STARTING FROM F.Y.2005 - 06 TO F.Y.2013 - 14 EVEN THOUGH HE HAS CLEARLY MENTIONED IN THAT STATEMENT THAT THE SOME CASH HAS BEEN DEPOSITED OUT OF 7 I.T.A. NO. 1665 1666 & 1667/MUM/2017 M/S WORLD TRADE PARK LTD CASH RECEIVED AGAINST BOOKING OF SHOPS AND OFFICES AND SOME OF THE CASH DEPOSITS ARE ALSO OUT OF EARLIER CASH WITHDRAWALS FROM DIFFERENT BANKS OF THE ASSESSEE COMPANY (REFER TO ANSWER TO QUESTION NO. 13 OF HIS STATEMENT DATED 17/10/2013). THE SAME FACT HAS BEEN RE - CONFIRMED IN THE SUBSEQUENT STATEMENT RECORDED U/S 131 ON 12/11/2013 FROM HIM. EVEN THOUGH I DO NOT AGREE WITH THE ID.AR THAT THE STATEMENT RECORDED U/S 133A HAS NO EVIDENTIARY VALUE SINCE ANY INCRIMI NATING MATERIAL EVIDENCE GATHERED DURING THE COURSE OF SURVEY CAN BE USED AGAINST THE ASSESSEE IT IS SEEN FROM THE RECORDS THAT THE AO HAS NOT LAID HIS HAND ON ANY SUCH INDEPENDENT INCRIMINATING EVIDENCE EXCEPT EMPHASIZING ON THE STATEMENT GIVEN BY THE MD DISCLOSING CASH DEPOSITS TO THE EXTENT OF RS.11.26 CR. AS UNEXPLAINED. THEREFORE EXCESSIVE RELIANCE GIVEN ONLY ON THE DISCLOSURE GIVEN IN THE STATEMENT BY THE MD IS NOT PROPER WITHOUT HAVING ANY INDEPENDENT EVIDENCE IN THE POSSESSION OF THE AO ESPECIALL Y WHEN THE ASSESSEE COULD EXPLAIN THE CASH DEPOSITS ADMITTED DURING THE SAME SURVEY WITH MATERIAL EVIDENCE DURING THE COURSE OF ASSESSMENT PROCEEDINGS WITH CONFIRMATIONS FINANCIAL STATEMENTS AND RECONCILIATION OF CASH DEPOSIT WITH THE BOOKS. SECONDLY IT IS SEEN FROM THE RECORDS THAT NOTICES U/S 147 WERE ISSUED AND ASSESSMENTS WERE 8 I.T.A. NO. 1665 1666 & 1667/MUM/2017 M/S WORLD TRADE PARK LTD REOPENED ASSESSMENT YEARS A.Y.2007 - 08 TO 2009 - 10 TO EXAMINE THE CASH DEPOSITS IN THE BANK ACCOUNTS OF THE APPELLANT COMPANY AND ONLY AFTER CAREFUL EXAMINATION OF THE DETAILS (BOOKS) SUBMITTED DURING THE COURSE OF THE REASSESSMENT PROCEEDINGS FOR THESE ASSESSMENT YEARS THE AO HAS NOT MADE ANY ADDITIONS IN THOSE YEARS AND THE REASSESSMENT PROCEEDINGS WERE CONCLUDED ACCEPTING THE INCOME RETURNED. THE REASONS RECORDED AND THE CONC LUSIONS OF THE AO ARE AS UNDER - REASONS (A.Y 2007 - 08): '... A SURVEY ACTION U/S 133A HAS BEEN CONDUCTED IN THIS CASE ON 17/10/2013. DURING THE COURSE OF SURVEY ACTION BOOKS OF ACCOUNT OF THE ASSESSEE COMPANY WERE SCRUTINISED AND IT WAS SEEN THAT THERE ARE NUMEROUS CASH ENTRIES IN THE BOOKS. ON FURTHER EXAMINATION IT WAS FOUND THAT THE ASSESSEE HAS BEEN DEPOSITING CASH IN DIFFERENT BANK ACCOUNTS OF THE COMPANY. DURING THE F. Y. 2006 - 07 RELEVANT A. Y 2007 - 08 THE ASSESSEE HAD DEPOSITED AN AMOUNT OF RS. 127 06 710 INTO DIFFERENT BANK ACCOUNTS. THE ASSESSEE HAS SUBMITTED THAT THE CASH DEPOSIT 9 I.T.A. NO. 1665 1666 & 1667/MUM/2017 M/S WORLD TRADE PARK LTD IS OUT OF CASH WITHDRAWALS FROM D IFFERENT BANK ACCOUNTS. HOWEVER THIS IS NOT AN ACCEPTABLE REASON FOR CASH DEPOSIT . THIS IS HIGHLY UNUSUAL FOR THE ASSESSEE COMPANY TO WIT HDRAW CASH AND DEPOSIT THE SAME. DEALING IN CASH IS NOT THE BUSINESS OF THE ASSESSEE. ASSESSEE IS IN THE BUSINESS OF CONSTRUCTION AND DEVELOPMENT . IN VIEW OF THE ABOVE FACTS OF THE CASE I HAVE REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED AS SESSMENT FOR A.Y 2007 - 08 AND ACCORDINGLY ASSESSMENT REQUIRES TO BE REOPENED UNDER SECTION 147 OF THE INCOME TAX AND 1961.' CONCLUDING PART OF ASSESSMENT (A.Y 2007 - 08): '7. NO INCOME ESCAPING ASSESSMENT CAN BE MADE OUT ON THE REASONS RECORDED FOR REOPENING THE ASSESSMENT. HENCE THE ASSESSMENT IS COMPLETED U/S 147 ASSESSING THE TOTAL INCOME ON THE RETURNED INCOME OF RS. 83 930......' SIMILAR REASONS WERE RECORDED AND ASSESSMENTS WERE CONCLUDED IN SIMILAR FASHION FOR ALL THE ASSESSMENT YEARS OF A.Y.2007 - 08 T O 2009 - 10. ADDITIONS WERE MADE ONLY FOR AY 2010 - 11 TO 2012 - 13 SINCE THE MD HAS ADMITTED CERTAIN AMOUNTS AS UNDISCLOSED FOR THESE 3 YEARS THUS IT IS FURTHER MADE CLEAR THAT THE AO HAS NO 10 I.T.A. NO. 1665 1666 & 1667/MUM/2017 M/S WORLD TRADE PARK LTD INDEPENDENT INFORMATION OTHER THAN THE STATEMENTS GIVEN BY THE MD OF THE COMPANY. IT IS PERTINENT TO NOTE HERE THE BOARD'S INSTRUCTIONS IN F.NO 286/2/2003 - I T(LNV) DATED MARCH 23 2003 AND INSTRUCTION IN F.NO 286/98/2013 - 1 T(LNV.LL) DATED 18/12/2014 WHEREIN EMPHASIS WAS GIVEN ON CREDIBLE EVIDENCE INSTEAD OF EMPHASIZING ON CONFESSIONS GIVEN DURING THE COURSE OF SEARCH AND SEIZURE AND SURVEY OPERATIONS . THIRDLY THE APPELLANT IS FOLLOWING PROJECT COMPLETION METHOD AS MENTIONED IN THE AUDIT REPORT UNDER 'SIGNIFICANT ACCOUNTING POLICIES' AND THE ADVANCES RECEIVED FROM THE PROS PECTIVE BUYERS ARE CLASSIFIED UNDER BOOKING ADVANCES AS UNDER - (H) BOOKING ADVANCES THE COMPANY HAS RECEIVED BOOKING ADVANCES FROM PROSPECTIVE CUSTOMERS. THE SAME HAVE BEEN CLASSIFIED UNDER THE HEAD OF UNSECURED LOANS AS PER PREVI OUS YEAR. THIS WILL BE ADJ USTED/T REATED AS SALES CONSIDERATION AS AND WHEN SALE DEED IS EXECUTED IN FAVOUR OF CUSTOMER BY THE COMPANY. SINCE THE PARTIES WHO GAVE ADVANCES SOME OF WHICH WERE TAKEN IN CASH AND FORMING PART OF SUNDRY CREDITORS NO DISALLOWANCE/ADDITION CAN BE MADE UN TIL THESE CREDITORS ARE PROVED BOGUS. THESE CREDITORS (15 11 I.T.A. NO. 1665 1666 & 1667/MUM/2017 M/S WORLD TRADE PARK LTD IN NUMBER) CANNOT BE PROVED BOGUS WHEN THEY APPEAR IN THE BOOKS OF THE APPELLANT UNDER BOOKING ADVANCES AND THEY FILED THEIR CONFIRMATIONS ALONG WITH ADDRESSES PANS COPIES OF ACCOUNTS ETC. BEFORE THE AO AND THE AO HAS ACCEPTED THEM AS GENUINE. FOURTHLY IT WAS NOT THE CASE OF THE AO THAT THE ASSESSEE HAS NOT DEPOSITED THE CASH AMOUNT OUT OF ADVANCES OR OUT OF EARLIER CASH WITHDRAWALS. HE HAS NEVER DOUBTED THIS FACT. HE HAS NOT MADE ANY INVESTIGATIO N AND ESTABLISHED ANY OTHER SOURCE FOR SUCH DEPOSITS WHICH HE FEELS NOT DISCLOSED BY THE ASSESSEE COMPANY. THEREFORE ADDITION ONLY BASED ON THE STATEMENTS GIVEN BY THE MD IS NOT PROPER. FIFTHLY THE ARGUMENTS RAISED BY THE ID.AR WITH REGARD TO VALIDITY OF STATEMENT RECORDED U/S 131 ON 12/11/2013 REALLY RAISES SEVERAL EYEBROWS. IF WE GO BY THE SUMMONS ISSUED U/S 131 DATED 08/10/2013 REQUIRING THE MD TO BE PRESENT ON 24/10/2013 THERE WAS NO STATEMENT RECORDED ON THAT SCHEDULED DATE AS PER THE SAID SUMMONS. IF WE GO BY THE DATE OF RECORDING OF SUMMONS ON 12/11/2013 IT WAS NOT SUPPORTED BY ANY SUMMONS U/S 131 REQUIRING THE MD TO BE PRESENT ON 12/11/2013. THEREFORE IN MY CONSIDERED VIEW THE STATEMENT TAKEN UNDER OATH U/S 131 HAS OF NO SIGNIFICANCE. NOW THE BIN DING NATURE OF THE STATEMENT 12 I.T.A. NO. 1665 1666 & 1667/MUM/2017 M/S WORLD TRADE PARK LTD GIVEN U/S 133A IS MUCH EXPOSED IN VIEW OF THE ABSENCE OF ANY INDEPENDENT EVIDENCE TO SHOW THAT SOME OF THE CASH DEPOSITS ARE NOT OUT OF ADVANCE BOOKING AND NOT FROM DEPOSITS FROM EARLIER WITHDRAWAL FROM OTHER BANKS BUT FROM SAM E UNEXPLAINED SOURCES. FINALLY IT IS ALSO NOTICED FROM THE RECORDS THAT EVEN THOUGH THE APPE LLANT HAS GIVEN DISCLOSURE AND FILED REVISED COMPUTATION OF STATEMENT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE HAS NEITHER FILED ANY REVISED RETUR N OF INCOME NOR PAID ANY TAXES ON THE ADDITIONAL INCOME(CASH DEPOSITS) DISCLOSED IN THE STATEMENT. THEREFORE NO RETRACTION STATEMENT WAS FILED AS IT WAS NOT NECESSITATED. 4.2.1 IN VIEW OF THE ABOVE DISCUSSION I AM CONVINCED THAT IF THE APPELLANT CAN EXPL AIN THE FACTS OF HIS STATEMENT CORROBORATING WITH THE MATERIAL EVIDENCE IN THE FORM OF CONFIRMATION LETTERS AND ENTRIES IN THE BOOKS FROM THE PARTIES WHO HAVE BOOKED THE FLATS AND PAID ADVANCES AND ALSO THE EVIDENCE WITH REGARD TO CASH WITHDRAWALS FROM OTH ER BANKS AS SOURCE FOR RE - DEPOSITING IN CONFORMITY WITH THE STATEMENT GIVEN DURING THE COURSE OF SURVEY NO FURTHER ADDITION IS CALLED FOR. SINCE NO REVISED RETURN OF INCOME WAS ALSO FILED BY DISCLOSING THE SO - CALLED UNDISCLOSED INCOME AND NO ADVANCE TAX W AS PAID NO LIABILITY ARISES FROM 13 I.T.A. NO. 1665 1666 & 1667/MUM/2017 M/S WORLD TRADE PARK LTD THE ASSESSEE. I THEREFORE DELETE THE ADDITION MADE FOR A.Y.2010 - 11 2011 - 12 AND 2012 - 13 AMOUNTING TO RS.11.26 CR. THE GROUND IS ALLOWED. 9. AGGRIEVED WITH THE ABOVE ORDER REVENUE IS IN APPEAL BEFORE US RAISING FOLLOWING GROUNDS OF APPEAL: 1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) IS JUSTIFIED DELETING THE ADDITION MADE ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS WITHOUT CONSIDERING THE FACT THAT THE ASSESSEE FAILED TO DISCHARGE THE ONUS OF PROVIDING THE SOURCE OF AS SUM OF MONEY FOUND TO HAVE BEEN RECEIVED. 2) THE APPELLANT PRAYS THAT THE ORDER OF THE LD. CIT(A) BE SET ASIDE AND THE ORDER OF THE AO BE RESTORED. 3) THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD ANY OTHER GROUNDS WHI CH MAY BE NECESSARY. 10. BEFORE US LD DR SUBMITTED THAT THERE WAS A SURVEY CONDUCTED ON 17 . 10 . 2013 AND SUBSEQUENT TO FINDINGS IN THE SURVEY OPERATIONS THE ASSESSMENT FOR ASSESSMENT YEAR S 2010 - 11 2011 - 12 AND 2012 - 13 WERE REOPENED. HE BROUGHT TO NOTICE 14 I.T.A. NO. 1665 1666 & 1667/MUM/2017 M/S WORLD TRADE PARK LTD F INDINGS OF ASSESSING OFFICER AND LD CIT(A). HE SUBMITTED THAT CONTRARY TO THE FINDINGS OF THE LD CIT(A) HE SUBMITTED THAT THERE WAS NO RESPONSE FROM THE PERSONS TO WHOM ASSESSING OFFICER ISSUED SHOW CAUSE NOTICE UNDER SECTION 133. FURTHER HE BROUGHT TO OU R NOTICE THE FINDINGS OF ASSESSING OFFICER IN THE ASSESSMENT YEAR 2011 - 12 2012 - 13 IN PARTICULAR PARA 4(E) IN WHICH ASSESSING OFFICER HAS CLEARLY BROUGHT ON RECORD THAT ASSESSEE HAS NO EVIDENCE IN SUPPORT OF SUCH HUGE CASH DEPOSIT. HE SUBMITTED THAT LD CIT (A) ERRED IN DELETING THE ADDITION MADE ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS AS THE ASSESSEE FAILED TO DISCHARGE THE ONUS OF PROVIDING THE SOURCE OF MONEY FOUND TO HAVE RECEIVED BY IT. 11. ON THE OTHER HAND LD AR SUBMITTED BEFORE US THAT THE SURVEY WAS CONDUCTED ON 17 . 10 . 2013 AND THE ASSESSING OFFICER REOPENED THE ASSESSMENT FOR SIX YEARS HOWEVER BASED ON THE ADMISSION BY ONE OF THE DIRECTOR THAT HE COULD NOT SUBSTANTIATE CERTAIN AMOUNT OF CASH DEPOSITS HOWEVER THE DIRECTOR HAD CLEARLY INDICATED THAT T HE SOURCE OF SUCH CASH DEPOSITS AT THE TIME OF THE SURVEY ITSELF. HE FURTHER SUBMITTED THAT ASSESSING OFFICER HAS 15 I.T.A. NO. 1665 1666 & 1667/MUM/2017 M/S WORLD TRADE PARK LTD ACCEPTED THE CASH DEPOSITS MADE IN OTHER YEARS BUT MADE ADDITION ONLY IN THE THREE ASSESSMENT YEARS I.E. ASSESSMENT YEAR S 2010 - 11 2011 - 12 AN D 2012 - 13 BY SOLELY RELYING ON STATEMENT GIVEN BY THE DIRECTOR WITHOUT PROPER EVIDENCE ON RECORD. THE BASE YEAR BEING ASSESSMENT YEAR 2011 - 12 WITH REGARD TO FINDINGS OF ASSESSING OFFICER IN HIS ORDER HE SUBMITTED THAT THE STATEMENT UNDER SECTION 133(1) T AKEN FROM THE DIRECTOR IS NOT LEGAL AND HE BROUGHT TO OUR NOTICE THAT ASSESSEE HAS TAKEN INFORMATION BY SEEKIN G INFORMATION UNDER RTI A CT AND HE BROUGHT TO OUR NOTICE PAGES 631 TO 636 OF THE PAPER BOOK AND SUBMITTED THAT THERE WAS NO STATEMENT TAKEN ON 24. 10. 2013 BUT IN FACT STATEMENT WAS RECORDED ON 12 .11. 2013 FOR WHICH THERE IS NO STATUTORY SUMMONS ISSUED. HE BROUGHT TO OUR NOTICE PAGE 640 OF THE PAPER BOOK IN WHICH BOTH WAS ADMINISTERED IN REFERENCE TO THE SURVEY ACTION UNDER SECTION 133A(1) OF THE A CT ON 17 . 10 . 2013. FURTHER HE BROUGHT TO OUR NOTICE PARA 2.1 OF THE ASSESSMENT ORDER IN WHICH THE ASSESSING OFFICER QUOTED WITH REFERENCE TO THE STATEMENT RECORDED ON 0 2 . 11 . 2013 IN THE OFFICE OF THE ASSESSING OFFICER UNDER SECTION 131 OF THE ACT HOWEVER HE S UBMITTED THAT NO SUCH ENQUIRY WAS CONDUCTED BY THE DEPARTMENT. 16 I.T.A. NO. 1665 1666 & 1667/MUM/2017 M/S WORLD TRADE PARK LTD 12. FURTHER HE BROUGHT TO OUR NOTICE ASSESSEE HAS SUBMITTED ALL THE CONFIRMATION LETTERS BEFORE THE ASSESSING OFFICER AND IN THE IDENTICAL REASONS AND SITUATION ASSESSING OFFICER HAS NOT MAD E ANY ADJUSTMENT IN ASSESSMENT YEAR 2007 - 08 TO AY 2009 - 10. H E SUBMITTED THAT IN THE ABOVE ASSESSMENT YEARS ASSESSMENTS WERE REOPENED WITH SIMILAR REASONS AND ALL THE ASSESSMENTS WERE ACCEP TED WITHOUT ANY ADVERSE REMARKS BY A REFERENCE TO THE SAME STATEM ENT OF THE DIRECTORS. THEREFORE THE ASSESSING OFFICER CANNOT RESTRICT THE ADDITIONS ONLY RELATING TO THIS ASSESSMENT YEAR. 13. FURTHER HE BROUGHT TO OUR NOTICE CBDT CIRCULARS TO SUBMIT THAT THE BOARD HAS GIVEN CLEAR INSTRUCTION THAT ASSESSING OFFICER CAN NOT MERELY OBTAIN STATEMENTS AND ADDITIONS CAN BE B ASED ONLY ON EVIDENCE COLLECTED. H E BROUGHT TO OUR NOTICE INSTRUCTION NO. 286/98/2013 AND INSTRUCTION NO. 286/2/2003. HE SUBMITTED THAT THE ASSESSING OFFICER HAS MADE ADDITION SOLELY ON THE BASIS OF STATEM ENT AND THEREFORE IT IS NOT SUSTAINABLE IN THIS REGARD HE RELIED ON THE FOLLOWING CASE LAW: 1. CIT VRS. S. KHADAR KAHN (2012) 25 TAXMEN.COM 413 17 I.T.A. NO. 1665 1666 & 1667/MUM/2017 M/S WORLD TRADE PARK LTD 2. JAIN TRADING CO. VRS. ITO (2007) 17 SOT 574 (MUM TRIB.) 3. D. S. AGENCIES & ASSOCIATES VRS. ACIT (2017) 82 TAXM ANN.COM 252 (MUM - TRIB) 4. DCIT VRS. PREMSONS (2010) 130 TTJ 159 (MUM - TRIB) 14. F URTHER HE SUBMITTED THAT BEFORE MAKING ADDITION NONE OF THE BOOKS ARE REJECTED AND IN THIS REGARD HE RELIED ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF SARGAM CINE MA VRS. CIT (2010) 328 ITR 513(SC) . 15. W ITH REGARD TO ASSESSMENT YEAR 2012 - 13 HE SUBMITTED THAT THE ADDITION WAS MADE SIMILAR TO THE FACTS IN THE ASSESSMENT YEAR 2011 - 12. 16. WITH REGARD TO AY 2010 - 11 HE REQUESTED THE BENCH TO REMIT THIS ISSUE BACK TO CIT(A) TO ADJUDICATE AFRESH SINCE ASSESSEE HAS GIVEN RELEVANT INFORMATION AND SUBMISSION BEFORE CIT(A) THAT ADDITIONS WERE NOT MADE MERELY RELYING ON THE ADMISSION/STATEMENT OF THE DIRECTOR BUT BASED ON THE INFORMATION FOUND DURING SURVEY. HE SUBMITTED TH AT THE RELEVANT INFORMATION 18 I.T.A. NO. 1665 1666 & 1667/MUM/2017 M/S WORLD TRADE PARK LTD WAS FILED BEFORE CIT(A) ON THIS ASPECT AND RELEVANT INFORMATION WAS ALREADY SUBMITTED BEFORE HIM. 1 7 . CONSIDERING THE RIVAL SUBMISSIONS AND MATERIAL PLACED ON RECORD WE NOTICE THAT THE AO HAS MADE THE ADDITION BASED ON THE STAT EMENT OF THE DIRECTOR. FURTHER WE NOTICE THAT AO HAS COMPLETED THE ASSESSMENT FOR AY 2007 - 08 TO AY 2009 - 10 AFTER VERIFICATION AND FOUND THAT THE DEPOSITS WERE PROPERLY EXPLAINED EVEN THOUGH SIMILAR DEPOSITS WERE MADE BY ASSESSEE AND THE REASONS FOR REOPEN ING THE ASSESSMENT IN THE ASSESSMENT YEARS UNDER CONSIDERATIO N ARE SAME. AO CANNOT FOLLOW TWO YARD STICKS. 18. EVEN BEFORE US LD. DR HAS NOT BROUGHT ON RECORD TO SUBSTANTIATE THE DIFFERENCE BETWEEN THE DEPOSITS MADE IN AY 2007 - 08 TO 2009 - 10 ARE DIFFERENT TO THE DEPOSITS MADE IN AY 2010 - 11 & 2011 - 12. THE AO MERELY RELIES ON THE FACT THAT THE DEPOSITORS HAS NOT RESPONDED TO THE NOTICES ISSUED BY HIM . IF NO DEPOSITORS RESPONDED THEN HOW THE AO DELETES THE ADDITION IN THE EARLIER AY S. 19. THE LD. AR SUBMITT ED CERTAIN ISSUES ON STATEMENT TAKEN BY AO AND CERTAIN RULES WERE NOT ADHERED TO. ON CAREFUL 19 I.T.A. NO. 1665 1666 & 1667/MUM/2017 M/S WORLD TRADE PARK LTD CONSIDERATION OF CIT(A)S ORDER WE FIND THAT LD. CIT(A) HAS CONSIDERED THE ALL ASPECTS AND GAVE REASONABLE FINDINGS AND HE FOUND THAT AO HAS ONLY RELIED ON THE ST ATEMENT OF THE DIRECTOR AND HAS NOT BROUGHT ANY COGENT MATERIAL TO MAKE ADDITION. THIS IS AGAINST THE PROCEDURE FOR MAKING ADDITION GIVEN BY THE CBDT. THEREFORE WE ARE IN AGREEMENT WITH THE FINDINGS OF LD. CIT(A) AND ACCORDINGLY THE GROUND RAISED BY THE REVENUE IS DISMISSED. 20. THE FACT IN AY 2011 - 12 ARE SIMILAR TO THE AY 2010 - 11 AND FINDINGS IN ABOVE PLEA ARE APPLICABLE AND ACCORDINGLY GROUNDS RAISED BY REVENUE IN AY 2011 - 12 IS DISMISSED. 21. WITH REGARD TO AY 2012 - 13 AS SUBMITTED BY LD. AR THAT THE FACTS IN THIS AY ARE DIFFERENT AND LD. CIT (A) HAS NOT ADJUDICATED THE ISSUE IN THAT PERSPECTIVE ACCORDINGLY THIS ISSUE IS REMITTED BACK TO THE FILE OF LD. CIT(A) TO CONSIDER THE SUBMISSION OF ASSESSEE AND MATERIAL PLACED ON RECORD AND ADJUDICATE THE ISSUE AFRESH. ACCORDINGLY GROUNDS RAISED IN AY 2012 - 13 ARE ALLOWED FOR STATISTICAL PURPOSES. 20 I.T.A. NO. 1665 1666 & 1667/MUM/2017 M/S WORLD TRADE PARK LTD 22 . IN THE NET RESULT THE APPEAL S FILED BY THE REVENUE FOR AY 2010 - 11 AND 2011 - 12 ARE DISMISSED AND APPEAL FOR AY 2012 - 13 IS ALLOWED FOR STATISTICAL PURPOSES. ORDE R PRONOUNCED IN THE OPEN COURT ON 29 TH NOV 20 19 . SD/ - SD/ - ( RAM LAL NEGI ) (S. RIFAUR RAHMAN ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 29 . 11. 201 9 SR.PS . DHANANJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. / DR ITAT MUMBAI 6. / GUARD F I LE / BY ORDER . / (DY./ASSTT.REGISTRAR) / ITAT MUMBAI