ACIT, New Delhi v. M/s Nand Kishor & Sons,, New Delhi

ITA 2801/DEL/2009 | 2001-2002
Pronouncement Date: 30-03-2012 | Result: Dismissed

Appeal Details

RSA Number 280120114 RSA 2009
Assessee PAN AACFN4418M
Bench Delhi
Appeal Number ITA 2801/DEL/2009
Duration Of Justice 2 year(s) 9 month(s) 20 day(s)
Appellant ACIT, New Delhi
Respondent M/s Nand Kishor & Sons,, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 30-03-2012
Appeal Filed By Department
Order Result Dismissed
Bench Allotted E
Tribunal Order Date 30-03-2012
Date Of Final Hearing 30-01-2012
Next Hearing Date 30-01-2012
Assessment Year 2001-2002
Appeal Filed On 10-06-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E NEW DELHI BEFORE SHRI R.P. TOLANI AND SHRI K.D. RANJAN ITA NO.2801/DEL/09 ASSTT. YR: 2001-02 ACIT CIR. 25(1) VS. M/S NAND KISHORE & SONS NEW DELHI. 2453 SADAR TIMBER MARKET SADAR BAZASR DELHI-110006. PAN/GIR NO. AACFN4418M ( APPLICANT ) ( RESPONDENT ) APPELLANT BY : SHRI R. S. NEGI SR. DR. RESPONDENT BY: SHRI VED JAIN FCA & MS. RANO JAIN CA O R D E R PER R.P. TOLANI J.M : THIS IS REVENUES APPEAL AGAINST CIT(A)S ORDER DAT ED 9-1-2009 RELATING TO A.Y. 2001-02. FOLLOWING GROUNDS ARE RAI SED: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN DELETING THE FOLLOWING ADDITIONS:- 1. CASH CREDIT U/S 68 ON ACCOUNT OF UNEXPLAINED CAPITAL INTRODUCED RS. 28 70 000/- 2. CASH CREDIT U/S 68 ON ACCOUNT UNEXPLAINED UNSECURED LOAN RS. 9 00 000/- 3. UNEXPLAINED INVESTMENT IN PURCHASE U/S 69 RS. 11 16 625/- 4. PROFIT CALCULATED OUT OF BOOKS ON SALE RS. 8 07 829/- TOTAL: RS. 56 94 454/- MADE BY AO BY VIOLATING THE PROVISIONS OF RULE 46A . THE APPELLANT CRAVES THE RIGHT TO ADD ANY OTHER GRO UND OF APPEAL. ITA 2801/DEL/09 M/S NAND KISHORE & SONS 2 2. BRIEF FACTS ARE DURING THE COURSE OF ORIGINAL A SSESSMENT ASSESSEE PRODUCED RELEVANT DOCUMENTS REGARDING GIFTS RECEIVE D BY PARTNERS OF ASSESSEE FIRM AND THREE CREDITORS FROM ONE SHRI J AIN BHAGWAN GUPTA TOGETHER WITH RECONCILIATION OF HIGH SEA SALES AND PURCHASE DETAILS RECONCILIATION OF DIFFERENCE IN PURCHASE/ SALES. BA SED ON THE EVIDENCE THE ASSESSMENT WAS FRAMED BY AO U/S 143(3) ON 25-3-2004 ACCEPTING THE ASSESSEES CONTENTIONS. 2.1. THEREAFTER CIT INVOKED HIS JURISDICTION U/S 2 63 AND SET ASIDE THE ABOVE REFERRED ORDER U/S 143(3) HOLDING THAT THE A SSESSMENT WAS FRAMED WITHOUT MAKING PROPER INQUIRIES. 2.2. CONSEQUENT TO 263 ORDER AO PROCEEDED TO REFRA ME THE SET ASIDE ASSESSMENT. THE FIRST NOTICE DATED 19-7-06 WAS ISSU ED FIXING THE CASE FOR 8-8- 2006. THEREAFTER CASE WAS ADJOURNED TO 24-8-06; AND 6-9-2006. ON 6-9-2006 IN RESPECT OF THESE QUERIES RAISED IN BEHALF OF AB OVE ISSUES ASSESSEE CONTENDED THAT ALL THE RELEVANT DETAILS ABOUT GIFTS UNSECURED LOANS DIFFERENCE IN PURCHASES AND RECONCILIATION WERE ALR EADY FILED IN THE ORIGINAL ASSESSMENT AND 263 PROCEEDINGS AND ARE ON THE RECOR D. ACCORDING TO ASSESSEE IT WAS INTIMATED THAT AO WOULD LIKE TO GO THROUGH THE ORIGINAL ASSESSMENT FOLDER AND RECORD AND IN CASE SOME MORE INFORMATION IS NEEDED IT WOULD BE CALLED FOR. THEREAFTER NO NOTICE WAS IS SUED FOR FILING ANY FURTHER DETAILS AND AFTER A PERIOD OF THREE MONTHS I.E. 21- 12-2006 IMPUGNED EX PARTE ASSESSMENT ORDER FRAMED U/S 144 WAS PASSED MAKING THESE ADDITIONS. 2.3. AGGRIEVED ASSESSEE PREFERRED FIRST APPEAL AGA INST THIS EX PARTE ASSESSMENT ORDER BEFORE THE CIT(A). ACCORDING TO A SSESSEE THOUGH THE RELEVANT DETAILS WERE FILED TWICE EARLIER I.E. BEFO RE ORIGINAL ASSESSMENT AND 263 PROCEEDINGS TO BE ON THE SAFE SIDE ASSESSEE MADE APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE. CIT(A) FORWARDED THE EVIDENCE TO AO FOR ITA 2801/DEL/09 M/S NAND KISHORE & SONS 3 REMAND REPORT. AO DULY FILED THE REMAND REPORT DATE D 10-4-2007 AVAILABLE ON PAGES 189-190 OF THE PAPER BOOK. ASSESSEE FILED REJOINDER LETTER TO REMAND REPORT WHICH IS AVAILABLE ON PAGES 191-192 OF THE PAPER BOOK. CIT(A) AFTER CONSIDERING THE REMAND REPORT AND MA TERIAL AVAILABLE ON RECORD DELETED THE ADDITIONS. AGGRIEVED REVENUE I S BEFORE US. 3. LD. DR AT THE OUT SET CONTENDS THAT CIT(A) ERRED IN ADMITTING THE ADDITIONAL EVIDENCE AS THE REQUISITE CONDITIONS OF RULE 46A(1) ARE NOT FULFILLED. RELIANCE IS PLACED ON HONBLE DELHI HIGH COURT JUDGMENT IN THE CASE OF MANISH BUILDWELL 245 CTR 397 (DEL.) 4. LEARNED COUNSEL FOR THE ASSESSEE VEHEMENTLY ARG UES THAT AO IN IMPUGNED SECOND ORDER HAS ACCEPTED THE FACT THAT DETAILS FILED IN ORIGINAL ASSESSMENT PROCEEDINGS TILL THE STAGE OF HEARING U/ S 263 WERE AVAILABLE ON RECORD. THIS IS SO BECAUSE ALL THE RELEVANT DETAILS WERE ALREADY FILED IN THE ORIGINAL ASSESSMENT PROCEEDINGS U/S 143(3) IN WHICH ALL THESE ISSUES WERE CONSIDERED ON MERITS. 263 PROCEEDINGS WERE INITIATE D ON THE BASIS THAT PROPER FURTHER INQUIRIES WERE NOT MADE. SIMILAR DOCUMENTS WERE FILED DURING HEARING OF REVISION PROCEEDINGS ALSO. ASSESSEE AS A DILIGENT TAX PAYER ACCEPTED THE ORDER U/S 263 WITH A BELIEF THAT LET D EPARTMENT RE-EXAMINE THE ISSUES AS ALL THE NECESSARY DETAILS ARE ALREADY FI LED BY IT. THEREFORE IT ACCEPTED THE 263 ORDER AND FACED THE SUBSEQUENT ASS ESSMENT PROCEEDINGS. AO IN HIS ORDER AT POINTS 9 & 10 HAS HIMSELF ACCEP TED THAT ALL THE DOCUMENTS FILED AT THE STAGE OF 263 PROCEEDINGS WERE DULY PER USED. SURPRISINGLY THERE IS NEITHER REFERENCE TO ANY SUCH DOCUMENTS WHICH W ERE ACTUALLY FILED BY THE ASSESSEE NOR AO HAS POINTED OUT AS TO WHICH OF THE PAPERS FILED BY THE ASSESSEE BEFORE CIT(A) WERE NOT ON THE RECORD. THER EFORE AO EXCEPT OPPOSING THE ADMISSION BY WAY OF GIVING A SWEEPING ASSERTION DID NOTHING IN REMAND REPORT. THE OBJECTION WAS NOT TENABLE A S HE HAD NOT EVEN TAKEN ITA 2801/DEL/09 M/S NAND KISHORE & SONS 4 THE TROUBLE OF POINTING OUT WHICH PAPER WAS ON THE RECORD OR NOT ON THE RECORD. AOS SUMMARY OBJECTIONS ARE CONTRARY TO REC ORD AND MADE IN IGNORANCE OF THE COPIOUS EVIDENCE CONSIDERED IN ORI GINAL ASSESSMENT WHERE ALL THESE ISSUES WERE EXAMINED. SAME EVIDENCE WAS A GAIN FILED BEFORE CIT IN PROCEEDINGS U/S 263. 4.1. AO IN THE REMAND REPORT HAS FAILED TO POINT OU T WHICH WAS NEW EVIDENCE AS COMPARED TO THE EVIDENCE ON RECORD. IN THE ABSENCE OF ANY REFERENCE TO PAPERS FILED BY THE ASSESSEE IN EARLIE R PROCEEDINGS THE AOS OBJECTION ABOUT RULE 46A IS WITHOUT APPLICATION OF MIND AND UNTENABLE. MOST OF THE PAPERS BEING ALREADY ON RECORD ENTIRE EVIDENCE CANNOT BE CALLED ADDITIONAL EVIDENCE. BESIDES THE REMAND REPORT HAV ING BEEN CALLED FROM AO AND THERE BEING NO REFERENCE TO EARLIER RECORD AS PLEADED BY ASSESSEE AND INDICATION ABOUT PARTICULAR PAPERS BEING NEW REVEN UES GROUND HAS NO MERIT. 5. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE ASSESSEE HAS ALRE ADY FILED EVIDENCE IN TWO EARLIER PROCEEDINGS I.E. (I) BY WAY OF REGULAR ASSESSMENT U/S 143(3) DATED 25-3- 2004 IN WHICH ALL THESE ISSUES WERE EXPLAINED BY THE ASSESSEE; AN D NO ADDITION WAS MADE IN ASSESSMENT SO FRAMED U/S 143(3). (II) REVISIONAL PROCEEDINGS U/S 263. 5.1. ASSESSEE AND AO BOTH ADMIT THE FACT THAT EVIDE NCE WAS FILED ON THE RECORD IN BOTH THE PROCEEDINGS. IN AOS REMAND REPO RT THERE IS NO REFERENCE TO ANY EARLIER EVIDENCE AND IDENTIFICATION OF PARTI CULAR PAPERS BEING ADDITIONAL EVIDENCE. EVEN IF THE ASSESSEE FILED AN APPLICATION FOR ADDITIONAL EVIDENCE AS A MATTER OF ABUNDANT CAUTION IN THAT CASE MATERIAL ALREADY ON RECORD DOES NOT BECOME ADDITIONAL EVIDENCE MERELY BECAUSE SUCH APPLICATION IS FILED BY THE ASSESSEE. THIS MAY BE AS A MATTER OF ABUNDANT ITA 2801/DEL/09 M/S NAND KISHORE & SONS 5 CAUTION TO ENSURE THAT NO TECHNICAL ISSUES ARISE AT THE TIME OF HEARING OF APPEAL BEFORE CIT(A). BESIDES AO HAS BEEN GIVEN DU E OPPORTUNITY OF HEARING TO RESPOND TO THE EVIDENCE BY WAY OF A PROP ER REMAND REPORT. AO HAS ACCEPTED IN POINTS 9 & 10 OF HIS REMAND REPORT THAT DOCUMENTS FILED TILL THE STAGE OF PROCEEDINGS U/S 263 WERE DULY PERUSED. SURPRISINGLY THERE IS NO SPECIFIC REFERENCE TO ANY SUCH EVIDENCE FILED BY TH E ASSESSEE IN EARLIER PROCEEDING. IN OUR VIEW CIT(A) DID NOT VIOLATE RU LE 46A IN THESE PECULIAR FACTS OF THE CASE AS IN THE ABSENCE OF AOS POINT ING OUT ANY SPECIFIC PAPER BEING NEW AFTER DUE VERIFICATION IN THE REMAND REP ORT IT CANNOT BE ASSUMED THAT THERE WAS VIOLATION OF RULE 46A. IN THESE PECU LIAR FACTS & CIRCUMSTANCES THIS CASE IS DISTINGUISHABLE FROM TH E FACTS OF MANISH BUILDWELL (SUPRA) WHERE THERE WERE NO EARLIER PROC EEDING AND EVIDENCE WAS FILED FOR THE FIRST TIME. CONSEQUENTLY THIS GROU ND OF THE REVENUE IS DISMISSED. 6. COMING TO THE MERITS LD. DR RELIED ON THE ORDER OF AO. 7. LEARNED COUNSEL FOR THE ASSESSEE ON THE OTHER H AND CONTENDS THAT EXISTENCE OF SHRI JAI BHAGWAN GUPTA HIS COMPANY M/ S FERNDALE LTD. NIGERIA/ LONDON WHERE HE IS A DIRECTOR IS ACCEPTE D BY THE AO. THE FACT THAT ASSESSEE FIRM HAD DEALINGS WITH SHRI JAI BHAGWAN GU PTA AND M/S FERNDALE LTD. SINCE EARLIER YEARS IS ALSO ACCEPTED BY AO. CO NSEQUENTLY THE IDENTITY OF SHRI JAI BHAGWAN GUPTA AND M/S FERNDALE LTD. IS BEYOND DOUBT. 7.1. COMING TO THE GENUINENESS OF THE TRANSACTIONS IT IS PLEADED THAT GIFTED MONEYS WERE TRANSFERRED FROM M/S FERNDALE LTD. BANK A/C NO. 45071977 WITH BARCLAYS BANK LONDON TO SHRI JAI BHAGWAN GUPT AS INDIAN NRE A/C NO. 24656545 WITH GRINDLAYS BANK CONNAUGHT PLACE NEW DELHI. RELEVANT BANK STATEMENTS WERE ALREADY ON EARLIER RECORD. SHR I JAI BHAGWAN GUPTA MADE THE IMPUGNED GIFTS TO PARTNERS AND OTHERS FRO M HIS NRE A/C. THE GIFTS ITA 2801/DEL/09 M/S NAND KISHORE & SONS 6 IN QUESTION BEING THROUGH BANKING CHANNELS AND DEMO NSTRATED BY RELEVANT BANK STATEMENTS THE PRIMARY ONUS OF GENUINENESS OF THE TRANSACTION IS DISCHARGED BY ASSESSEE. 7.2. THE CREDITWORTHINESS OF SHRI JAI BHAGWAN GUPTA IS ACCEPTED BY AO BY REFERRING TO HIS EARLIER BUSINESS RELATIONS WITH ASSESSEE CONCERN HE WAS A QUALIFIED CA WHO SHIFTED TO U.K. AFTER HIS MARRIAGE BECAME SUCCESSFUL AND OWNED ABOVE BUSINESS. THUS THE PRIMARY ONUS OF CRE DITWORTHINESS OF DONOR HAS BEEN DISCHARGED BY ASSESSEE. 7.3. AO ON ASSUMPTION HAS HELD THAT THESE GIFTS ARE FAADE AND IT IS ASSESSEES MONEY WHICH HAS COME BACK. IT IS PLEADED THAT ASSUMPTIONS ARE SURMISES BEREFT OF ANY EVIDENCE TO HOLD SO THERE FORE THE ADDITIONS SHOULD BE DELETED. RELIANCE IS PLACED ON ITAT ORDER IN THE CASE OF NARENDER KUMAR SEKHRI VS. ACIT 81 ITTJ 1036 (ASR.); AND HONBLE DE LHI HIGH COURT JUDGMENT IN THE CASE OF CIT VS. R.S. SIBAL 269 ITR 429 WHEREIN ON SIMILAR FACTS ADDITIONS WERE DELETED. 7.4. IT IS VEHEMENTLY ARGUED THAT IN ANY CASE THE PARTNERS AND CREDITORS BEING IDENTIFIABLE AND ASSESSED TO TAX THE ADDITIO NS IF ANY COULD HAVE BEEN CONTEMPLATED IN THE HANDS OF PARTNERS AND CREDITORS AND NOT IN THE CASE OF THE ASSESSEE FIRM. WHEN THE DONOR AND DONEE ARE IDENTIF IABLE AND ASSESSED TO INCOME TAX THEIR BANKING TRANSACTIONS ARE KNOWN A ND THE CREDITWORTHINESS IS PROVED IN THE FIRST PLACE THERE CANNOT BE ANY Q UESTION OF ADDITIONS AND IN ANY CASE THE ISSUE OF ADDITION IF ANY THE SAME CAN BE CONSIDERED IN THE HANDS OF PARTNERS AND NOT THE ASSESSEE FIRM. RELIA NCE IS PLACED ON HONBLE SUPREME COURT JUDGMENT IN THE CASE OF LOVELY EXPORT S FOR THIS ANALOGY. 7.5. APROPOS GROUND NO. 2 THE ADDITIONS WERE MADE U/S 68 FOR FOLLOWING LOANS: ITA 2801/DEL/09 M/S NAND KISHORE & SONS 7 (I) SMT. RACHNA GOEL RS. 4 50 000/- (II) SMT. RITU GOEL RS. 1 75 000/- (III) SMT. VEENU GOEL RS. 2 75 000/- 7.6. IT IS PLEADED THAT THE AMOUNTS WERE RECEIVED B Y THESE PERSONS FROM SHRI JAI BHAGWAN GUPTA FACTS ARE SIMILAR THEREFOR E THE ARGUMENTS AND ANALOGY OF GROUND NO. 1 ARE REITERATED FOR THIS ADD ITON. 7.7. APROPOS GROUND NO. 3 LEARNED COUNSEL FOR THE ASSESSEE CONTENDS AS UNDER: ADDITION OF RS. 11 16 625 THE AO POINTED OUT THAT THE PURCHASES SHOWN AS PER THE PROFIT & LOSS A/C WERE AT RS. 7 65 24 959/- WHEREAS THE PURCHASES AS PER THE PURCHASE REGISTER WERE RS. 7 76 41 584/-. T HE APPELLANT FILED ALL NECESSARY DETAILS ABOUT RECONCILIATION OF THE PURCHASES IN THE ORIGINAL ASSESSMENT U/S 143(3). THE RECONCIL IATION WAS SUPPORTED BY DETAILS OF PURCHASES PARTY-WISE DETAI LS OF PURCHASES EXPLANATION ABOUT DIFFERENCE BETWEEN THE FIGURES OF PURCHASES AS PER PURCHASE REGISTER AND PURCHASES AS PER PROFIT & LOSS A/C THE SAME WAS MAINLY ON ACCOUNT OF GOODS R ETURN AND SETTLEMENT OF RATE DIFFERENCES ETC. THE RECONCILIAT ION WAS SELF EXPLANATORY AND ALL RELEVANT EXPLANATION AND RECONC ILIATION WERE FILED DURING THE COURSE OF ORIGINAL ASSESSMENT AND 263 PROCEEDINGS. ADDITION OF RS. 8 07 829 THE SALES AS PER SALES REGISTER WERE RS. 10 12 68 1 09 AND SALES AS PER PROFIT & LOSS A/C WERE 10 14 28 288/-. ALL THE RELEVANT DETAILS OF PARTY-WISE SALES AND HIGH SEA SALES WERE FILED WITH ITA 2801/DEL/09 M/S NAND KISHORE & SONS 8 THE AO IN ORIGINAL ASSESSMENT. THE DIFFERENCE WAS MAINLY ON ACCOUNT OF GOODS RETURN RATE DIFFERENCE SAWING C HARGES JOB WORK OF RS. 69 408 WHICH WERE NOT INCLUDED IN THE SALES REGISTER AS CREDITED SEPARATELY. THE RECONCILIATION WAS SELF- EXPLANATORY. AO WITHOUT CONSIDERING THE SAME RESORT ED TO SUMMARY ADDITION. 7.8. IT IS PLEADED THAT ASSESSEE SUBMITTED SATISFAC TORY EXPLANATION WITH COMPLETE RECONCILIATION. CIT EARLIER HAD EXERCISED HIS JURISDICTION U/S 263 UNDER THE IMPRESSION THAT PROPER INQUIRES WERE NOT CONDUCTED BY AO AND ORIGINAL ASSESSMENT WAS SET ASIDE. THE ORIGINAL AS SESSMENT WAS U/S 143(3) ON CONSIDERATION OF THE MATERIAL ON RECORD. IT IS P LEADED THAT THE ADDITION MADE IGNORING THE RECONCILIATION AND EVIDENCE AVAIL ABLE ON RECORD IS GROSSLY UNJUSTIFIED. CIT(A) CONSIDERING ALL THESE A SPECTS HAS RIGHTLY DELETED THESE ADDITIONS WHICH IS RELIED ON. 8. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH THE RELEVANT MATERIAL AVAILABLE ON RECORD. 8.1. APROPOS AMOUNTS RECEIVED THROUGH GIFTS IN THE HANDS OF THE PARTNERS AND OTHER CREDITORS FROM SHRI JAI BHAGWAN GUPTA A O HIMSELF HAS ACCEPTED THAT HE WAS DIRECTOR OF FERNDALE LTD. NIGERIA AND THE FACT THAT ASSESSEE CONCERN WAS ENGAGED IN THE PURCHASE AND SALE OF TIM BER FROM M/S FERNDALE LTD. AO HAS REFERRED TO MR. JAI BHAGWANS WITHDRAWA LS FROM COMPANYS ACCOUNTS ITS TRANSFER TO BERCLAY BANK LONDON A/C A ND THEREAFTER ITS TRANSFER TO DELHI NRE A/C OF SHRI JAI BHAGWAN GUPTA. ALL THE DETAILS OF CHEQUES/ DRAFTS ARE GIVEN BY AO HIMSELF ON PAGE 4 OF ASSESSM ENT ORDER. WITHOUT CONSIDERING THE EVIDENTIARY VALUE OF THIS RECORD T HESE GIFTS HAVE BEEN MAINLY DOUBTED ON THE FOLLOWING ACCOUNTS: ITA 2801/DEL/09 M/S NAND KISHORE & SONS 9 (I) DATE OF PURCHASE OF NON-JUDICIAL STAMP PAPERS WAS N OT EXPLAINED. (II) AFFIDAVIT AND PLACE OF EXECUTION OF AFFIDAVIT WAS U NDER DOUBT. 8.2. AO ON ONE HAND CONSIDERED PART OF THE EVIDENCE AND ON OTHER HAND OPPOSED THE ENTIRE MATERIAL. THERE IS NO REFERENCE TO EARLIER PROCEEDINGS U/S 143(3) AND 263 FOR THE SAME ASSESSMENT YEAR. 8.3. IT EMERGES FROM THE RECORD THAT OTHER EVIDENCE IN THE FORM OF CONFIRMATIONS/ BANK ACCOUNT AND OTHER DOCUMENTS ARE REFERRED IN CIT(A)S ORDER. AO HOWEVER IN HIS ORDER HAS TAKEN AN AD H OC STAND THAT THE CREDITWORTHINESS OF THE DONOR COULD NOT BE PROVED A S THE DETAILS OF INCOME OF SHRI JAI BHAGWAN GUPTA HAVE NOT BEEN PROVIDED. IN OUR VIEW AO HAS FAILED TO CONSIDER THE EVIDENCE/ MATERIAL ALREADY AVAILABL E ON RECORD WHICH EXPLAINS THESE ASPECTS AND MADE THE ADDITION ON THE BASIS OF ASSUMPTIONS. IT HAS BEEN IGNORED THAT THE DOCUMENTS ABOUT ASSESSEE S RELATIONS WITH M/S FERNDALE LTD; SHRI JAI BHAGWAN GUPTA; BARCLAYS BAN K LONDON NRE A/C WITH GRINDLAYS BANK ALL WERE ON THE RECORD. IN OUR VIEW THE ASSESSEE HAD DISCHARGED ITS PRIMARY BURDEN AND IN REFRAMED ASSES SMENT PLEADED THAT THE DOCUMENTS ALREADY FILED ON RECORD WERE SUFFICIENT T O DISCHARGE ITS ONUS. AO OVERLOOKED THE EVIDENCE ALREADY ON RECORD AND ON AS SUMPTIONS HELD THAT PRIMARY ONUS CAST ON THE ASSESSEE IS NOT DISCHARGED IN OUR CONSIDERED VIEW ASSESSEE HAS SUBMITTED REASONABLE EVIDENCE IN TWO E ARLIER PROCEEDINGS TO DISCHARGE ITS PRIMARY ONUS ABOUT THE IDENTITY OF TH E DONOR GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS OF THE DONOR A S CONTEMPLATED BY SEC. 68. IT DOES NOT EMERGE FROM THE RECORD THAT AO EVEN END EAVORED TO CROSS CHECK THE DETAILS BY ISSUING SUMMONS U/S 131 IN CASE A SSESSEES CONTENTION WAS NOT ACCEPTABLE. CONSEQUENTLY WE HOLD THAT IN THE A BSENCE OF PROPER REBUTTAL ON THE PART OF AO ONUS DID NOT SHIFT. IN THESE FACT S AND CIRCUMSTANCES WE ARE OF THE VIEW THAT ASSESSEE DISCHARGED ITS PRIMARY ON US AS ENVISAGED BY SEC. ITA 2801/DEL/09 M/S NAND KISHORE & SONS 10 68 THEREFORE THESE ADDITIONS CANNOT BE MADE. OUR VIEW IS SUPPORTED BY THE HONBLE SUPREME COURT JUDGMENT IN THE CASE CIT VS. LOVELY EXPORTS P. LTD. (2009) 319 ITR (ST.) 5; AND HONBLE DELHI HIGH COURT IN THE CASE OF DWARKADHISH INVESTMENTS P. LTD. & ANR. (2011) 330 I TR 298 WHICH HAVE CATEGORICALLY LAID DOWN THE INGREDIENTS OF PRIMARY ONUS CAST ON THE ASSESSEE AND DEGREE OF ITS DISCHARGE WHILE PROVING CASH CRE DITS U/S 68. IN OUR VIEW ASSESSEE HAS DISCHARGED HIS BURDEN. 8.4. FROM ANOTHER ANGLE ALSO THESE ADDITIONS CANNO T BE MADE IN THE HANDS OF THE ASSESSEE AS THEY CAN BE CONSIDERED IN THE HA NDS OF THE PARTNERS OF THE FIRM. IT HAS NOT BEEN DISPUTED THAT ALL PARTNERS AN D CREDITORS ARE ASSESSED TO TAX SINCE LONG; THEY ALL ARE IDENTIFIED; THEY HAV E ACCEPTED THE GIFTS THROUGH BANK AND DEPOSITED IN THEIR PERSONAL ACCOUNTS. THE AMOUNTS HAVE BEEN TRANSFERRED FROM THEIR BANK ACCOUNTS TO FIRMS ACCO UNT. IN VIEW OF THESE GLARING FACTS THE ISSUE OF ADDITION OUGHT TO HAVE B EEN CONSIDERED IN THE HANDS OF THE PARTNERS/ CREDITORS AS DIRECTED BY HONBLE SUPREME COURT JUDGMENT IN THE CASE OF LOVELY EXPORTS (SUPRA). IN VIEW OF ABO VE FACTS CIRCUMSTANCES AND OBSERVATIONS WE UPHOLD THE ORDER OF CIT(A) DE LETING THESE ADDITIONS U/S 68 REVENUES GROUND NOS. 1 & 2 ARE DISMISSED. 8.5. COMING TO GROUND NO. 3 I.E. UNEXPLAINED INVEST MENT IN PURCHASES THE ASSESSEE DURING ORIGINAL ASSESSMENT PROCEEDINGS FUR NISHED COMPLETE RECONCILIATION. THE DIFFERENCE IN PURCHASE FIGURES AROSE ON ACCOUNT OF EXCHANGE RATE DIFFERENCE SALES RETURN IN RESPECT OF CONTINENTAL TRADERS AMOUNTS ADJUSTED TO CUSTOM DUTY AND CLEARING CHARGE S TT RECEIVED FROM SINGAPORE OVERSEAS ENTERPRISES AND GOODS IN TRANSIT WHICH ARE EXPLAINED IN COMPLETE DETAILS IN EARLIER PROCEEDINGS AS FILED AT PAPER BOOK PAGES 180 TO 184. CONSEQUENTLY IN OUR VIEW ASSESSEE HAS DEMON STRATED THE DIFFERENCE IN PURCHASE FIGURES ON THE BASIS OF VERIFIABLE AND REASONABLE EXPLANATION ON ITA 2801/DEL/09 M/S NAND KISHORE & SONS 11 ACCOUNT OF ADJUSTMENT DUE TO EXCHANGE RATE OF DIFFE RENCE SALES RETURN CUSTOMS DUTY AND CLEARING CHARGES TT RECEIVED FROM M/S SWISS SINGAPORE OVERSEAS ENTERPRISES PTE. LTD. AS AO HAS OVERLOOKED THE EARLIER RECORD WE HOLD THAT ASSESSEE EXPLAINED AND RECONCILED THE SAL E DIFFERENCES. THE ORDER OF CIT(A) ON THIS ISSUE IS UPHELD. THIS GROUND OF R EVENUE IS DISMISSED. 8.6. COMING TO PROFITS ADDED ON A/C OF OUT OF BOOK SALES SINCE WE HAVE ALREADY HELD THAT PURCHASES HAVE BEEN DULY RECONCIL ED BY THE ASSESSEE AND BESIDES DIFFERENCES IN SALES WERE DULY RECONCILED. RELEVANT DETAILS WERE FURNISHED IN RESPECT OF SALES DIFFERENCE WHICH ARE PLACED ON PAGES 185 & 186 OF THE PAPER BOOK THE SAME BEING ON ACCOUNT OF CASH SALES JOB CHARGES OF SAWING WHICH DO NOT COME TO SALES REGISTER GOO DS RETURNED. IN OUR CONSIDERED VIEW ASSESSEE HAS RECONCILED THE SALES ALSO AND THERE BEING NO DIFFERENCE IN PURCHASE/ SALES IN THIS RESPECT ADD ITIONS HAVE BEEN RIGHTLY DELETED BY THE CIT(A). ORDER OF CIT(A) IS UPHELD AN D GROUND NO. 4 TAKEN BY REVENUE IS DISMISSED. 9. IN THE RESULT REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 30-03-2012. SD/- SD/- (K.D. RANJAN ) ( R.P. TOLANI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 30-03-2012. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR ITA 2801/DEL/09 M/S NAND KISHORE & SONS 12