HARSHA NILESH SHETH, MUMBAI v. ITO 21(1)(2), MUMBAI

ITA 4867/MUM/2014 | 1999-2000
Pronouncement Date: 30-09-2016 | Result: Partly Allowed

Appeal Details

RSA Number 486719914 RSA 2014
Assessee PAN AOSPS7882J
Bench Mumbai
Appeal Number ITA 4867/MUM/2014
Duration Of Justice 2 year(s) 2 month(s) 7 day(s)
Appellant HARSHA NILESH SHETH, MUMBAI
Respondent ITO 21(1)(2), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 30-09-2016
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted H
Tribunal Order Date 30-09-2016
Date Of Final Hearing 07-04-2016
Next Hearing Date 07-04-2016
Assessment Year 1999-2000
Appeal Filed On 23-07-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH MUM BAI BEFORE SHRI R.C. SHARMA AM AND SHRI SANDEEP GOSAIN JM ./ I.T.A. NO. 4867 4868 & 4870/MUM/2014 ( / ASSESSMENT YEAR: 1999-2000 2000-01& 2001-02) SMT. HARSHA NILESH K SHETH B/16 GARIBDAS CHS 5 TH NORTH SOUTH ROAD JVPD SCHEME VILE PARLE [WEST] MUMBAI-400 049. / VS. THE INCOME TAX OFFICER WARD 21(1)(2) C-10 PRATYAKSHKAR BHAVAN 5 TH FLOOR BANDRA KURLA COMPLEX BANDRA (EAST) MUMBAI-400 050. ./ ./PAN/GIR NO. AOSPS 7882J ( /APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : MS. AARTI VISSANJI MS. PARVATHY GANESH / RESPONDENT BY : SHRI UDAY BHASKAR JAKKE / DATE OF HEARING : 19/07/2016 !'# / DATE OF PRONOUNCEMENT : 30/09/2016 $% / O R D E R PER SANDEEP GOSAIN J. M.: THERE ARE THREE APPEALS UNDER CONSIDERATION. THESE APPEALS ARE FILED BY THE ASSESSEE AGAINST THE ORDERS OF CIT(A)- 32 DATED 02 .05.2014 FOR THE ASST YEAR: 1999-2000 2000-01& 2001-02 . SINCE THE ISSUES RAISED IN THESE THREE APPEALS ARE IDENTICAL EXCEPT FOR YEAR OF ASSESSMENT THEREF ORE FOR THE SAKE OF CONVENIENCE; THEY ARE CLUBBED HEARD AND DISPOSED OF BY THIS CON SOLIDATED ORDER. 2 ITA NO. 4867 4 868 &4870/MUM/14 SMT. HARSHA NILESH SHETH VS. ITO 1) THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL ) 32-MUMBAI HAS ERRED IN SUSTAINING THE ADDITION OF RS.76 63 084/ - MADE BY THE ASSESSI NG OFFICER U/S 68 OF THE TAX ACT AS UNEXPLAINED THE CASH CREDIT OF THE FOLLOWING LOAN C REDITORS. A) SENSEX FINANCIAL CONSULTANCY RS.76 38 084/ - B) GILTEDGE MANAGEMENT SERVICES LTD RS. 25 000/- RS. 76 63 084/- 2) HE OUGHT TO HAVE CONSIDERED THE APPELLANT SUBMI SSION AS REGARDS TO PRODUCTION OF DOCUMENTARY EVIDENCE IN SUPPORT OF THE LOAN TAKEN F ROM THE ABOVE PARTIES DURING THE COURSE OF ASSESSMENT PROCEEDING. 3) THE ASSESSEE CRAVES LEAVE TO ADD ALTER OR AMEN D THE GROUND OF APPEAL AND SUBMIT A DETAILED STATEMENT OF FACTS AND CASE LAWS RELIED UP ON AT THE TIME OF THE HEARING. ITA NO.4867/MUM/2014 2. THE BRIEF FACTS OF THE CASE ARE THAT IN THIS CAS E NOTICE U/S 148 WAS ISSUED ON 30.07.2002 AND CONSEQUENT ASSESSMENT WAS COMPLETED ON 15.09.2003 U/S 147 R.W.S. 143(3) OF THE ACT DETERMINING A TOTAL INCOME AT RS.77 33 644/- ADDITIONS ON ACCOUNT OF UNEXPLAINED CASH CREDITS FROM TWO COMPAN IES I.E. SENSEX FINANCIAL CONSULTANCY OF RS.76 38 084/- AND GILTEDGE MANAGEME NT SERVICES LTD. OF RS.25 000/- BEING UNPROVED LOANS CLAIMED TO HAVE BE EN RECEIVED BY THE ASSESSEE. 3. IN THE FIRST QUANTUM APPEAL THE CIT(A) DISMISSED THE APPEAL FILED BY THE ASSESSEE AND CONFIRM THE ADDITION MADE BY AO. HOWEV ER ON FURTHER APPEAL THE HONBLE ITAT C BENCH MUMBAI VIDE THEIR COMBINED ORDER NOS. ITA NOS. 1566 1567 & 1568 /MUM/2005 ITA NO1569/MUM/2005 AND ITA NOS. 1570 1571 3 ITA NO. 4867 4 868 &4870/MUM/14 SMT. HARSHA NILESH SHETH VS. ITO & 1572/MUM/2005 DATED 18-01-2012 SET ASIDE THE ORDE RS OF THE LOWER AUTHORITIES AND DIRECTED THE AO TO DECIDE THE ISSUE AFRESH AFT ER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IT WAS MADE CLEAR BY THE HONBLE ITAT THAT ASSESSEE MUST PROVE THE ORIGIN OF THE AMOUNT O F LOAN RECEIVED BY IT CONCLUSIVELY ALONG WITH ITS ROTATION. THESE DIRECTI ONS WERE ISSUED BY THE ITAT SINCE SHRI KETAN SETH ALONG WITH HIS GROUP CONCERNS WERE FOUND TO BE IN COLLUSION WITH THE JANATA SAHAKARI BANK LTD. HAD INDULGED IN PAPER TRANSACTION ROUTED FROM ONE ACCOUNT TO ANOTHER. 4. WHILE ABIDING THE DIRECTIONS OF HONBLE ITAT AO ASKED THE ASSESSEE TO PROVE THE ORIGIN OF MONEY. IN THIS PROCESS AO ISSUE FRESH NOTICES U/S 142(1) TO THE ASSESSEE THEREBY CALLING UPON THEM TO FURNISH NECES SARY DETAILS AND DOCUMENTARY EVIDENCE. IN ADDITION NOTICE U/S 133(6) WERE ALSO I SSUED TO THE CREDITORS I.E. SENSEX FINANCIAL CONSULTANCY (SENSEX) AND GILTEDGE MANAG EMENT SERVICES LTD. (GILTEDGE). THE ASSESSEE SUBMITTED REPLY AS WELL AS DETAILS DEMANDED BY THE AO. AFTER HEARING THE PARTIES THE AO WAS OF THE VIEW T HAT THE ASSESSEE HAS NOT BEEN ABLE TO DISCHARGE THE ONUS TO PROVE THE CREDITWORTH INESS AND THE GENUINENESS OF THE TRANSACTION AND ACCORDINGLY ARRIVED AT THE CONCLUSI ON THAT THE CASH CREDIT IN THE BOOKS OF ASSESSEE REMAINED UNPROVED AND AMOUNT OF R S.76 38 084/- FROM SENSEX FINANCIAL CONSULTANCY AND RS.25 000/- FROM GILTEDGE MANAGEMENT SERVICES (GILTEDGE) WERE ADDED TO THE INCOME OF THE ASSESS EE U/S 68 OF THE ACT. 4 ITA NO. 4867 4 868 &4870/MUM/14 SMT. HARSHA NILESH SHETH VS. ITO 5. AGGRIEVED BY THE ORDER OF THE AO ASSESSEE FILED THE APPEAL BEFORE CIT(A) AND THE CIT(A) AFTER CONSIDERING THE CASE OF THE AS SESSEE HAD DISMISSED THE SAME VIDE ORDER DATED 02.05.2014. 6. AGGRIEVED BY THE ORDER OF CIT(A) THE ASSESSEE F ILED THE PRESENT APPEAL BEFORE US ON THE GROUNDS MENTIONED HEREIN ABOVE. GROUND NO.1 TO 3 7. SINCE ALL THE GROUNDS RAISED BY THE ASSESSEE ARE INTER-CONNECTED AND INTER- RELATED THEREFORE WE THOUGHT IT FIT TO DISPOSE OFF THE SAME THROUGH THE PRESENT COMMON ORDER. THE IMPUGNED QUESTION BEFORE US FOR DECISION IS THAT AS TO WHETHER THE ASSESSEE HAD FOLLOWED THE DIRECTIONS OF ITAT C BENCH MUMBAI GIVEN VIDE THEIR COMBINED ORDERS IN ITA NOS. 1566 1567 & 1568 /MUM/2005 ITA NO1569/MUM/2005 AND ITA NOS. 1570 1571 & 1572/MUM/2 005 DATED 18-01- 2012 SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND DIRECTED THE AO TO DECIDE THE ISSUES AFRESH AFTER PROVIDING REASONABLE OPPORTUNI TY OF BEING HEARD TO THE ASSESSEE. THE OPERATIVE PARA IS REPRODUCED BELOW FOR THE SAKE OF REFERENCE: '5. ... BOTH THESE CONCERNS ARE GROUP CONCERNS OF S HRI KETAN SHETH WHO WAS INVOLVED IN THE SECURITIES SCAM AND ASSESSEE IS ALS O PART OF THE SAME GROUP. THE SAID SHRI KETAN SHETH WAS DIRECTED TO BE PRODUCED B EFORE THE LOWER AUTHORITIES BUT COULD NOT BE PRODUCED BECAUSE OF HIS JUDICIAL C USTODY WITH C.B.L THE LEARNED A.R. STATED THAT NOW HE IS OUT ON BAIL. ON A SPECIF IC QUESTION ABOUT THE PRESENT STATUS OF SECURITIES SCAM INVOLVING SHRI KETAN SHET H THE LEARNED A.R. COULD NOT THROW ANY LIGHT ON THE SAME. THE ORIGIN OF THE ENTI RE AMOUNT AS ADDED BY THE A.O. U/S 68 IN THE CASE OF THIS ASSESSEE IN THIS YEAR AN D OTHER YEARS AS WELL AS OTHER ASSESSEES INVOLVED IN THIS BATCH OF APPEALS APPEARS TO BE LOAN FROM JANATA 5 ITA NO. 4867 4 868 &4870/MUM/14 SMT. HARSHA NILESH SHETH VS. ITO SAHAKARI BANK LIMITED OF 20 CRORE. THIS BANK IS ALS O INVOLVED IN THE ABOVE SCAM FOR ROTATION OF VARIOUS FUNDS PERTAINING TO KETAN S HETH GROUP OF ASSESSEES. AS IT IS A CASE UNDER INVESTIGATION BY C.B.L INVOLVING KETAN SHETH GROUP OF ASSESSEES ALLEGING ROTATION OF VARIOUS FUNDS PERTAINING TO TH E SAID GROUP IT IS BUT NATURAL THAT THE PAPER TRANSACTIONS WOULD DEFINITELY BE ROU TED FROM ONE ACCOUNT TO ANOTHER. BUT THE MERE FACT THAT THE TRANSACTIONS HA VE BEEN RECORDED IN THE BOOKS OF ACCOUNT DOES NOT PER SE PROVE THE GENUINENESS OF THE TRANSACTIONS MORE SPECIFICALLY WHEN SHRI KETAN SHETH HIMSELF IS INVOL VED IN THE SCAM AND FURTHER THE BANK WHICH INITIALLY ALLEGEDLY ADVANCED LOAN TO SHR I KETAN SHETH IS ALSO PART OF THE SCAM. UNDER SUCH CIRCUMSTANCES UNLESS THE ORIGI N OF THE AMOUNT IS CONCLUSIVELY PROVED THERE IS NO POINT IN ACCEPTING THE ROTATION OF FUNDS FROM ONE CONCERN TO ANOTHER AND FROM ONE HAND TO ANOTHER. NO T ONLY THE ORIGIN OF THE MONEY BUT ALSO ITS ROTATION NEEDS TO BE PROPERTY E XPLAINED BY THE ASSESSEE. AS THE PERSONS ADVANCING LOANS TO THE ASSESSEE AND THE ASS ESSEE HERSELF ARE PART OF THE KETAN SHETH GROUP OF ASSESSEES WHO ARE INVOLVED IN THE SECURITIES SCAM AND THE FINAL VIEW TAKEN IN THAT SCAM HAS NOT BEEN BROUGHT TO OUR NOTICE WE ARE HANDICAPPED IN DECIDING THIS ISSUE AT OUR END. IN O UR CONSIDERED OPINION THE ENDS OF JUSTICE WILL MEET ADEQUATELY IF THE IMPUGNED ORD ER IS SET ASIDE THE MATTER IS RESTORED TO THE FILE OF A.O. WE ORDER ACCORDINGLY A ND DIRECT HIM TO DECIDE THIS ISSUE AS PER LAW AFTER ALLOWING A REASONABLE OPPORT UNITY OF BEING HEARD TO THE ASSESSEE. ' IN THE AFORE MENTIONED ORDER THE ITAT HAD DIRECTED THAT THE ASSESSEE MUST PROVE THE ORIGIN OF THE AMOUNT OF LOAN RECEIVED BY IT CONCLUSIVELY ALONG WITH ITS ROTATION. 8. WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES ON THIS GROUND AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS THE ORDERS PASSED BY THE REVENUE AUTHORITIES. NOW THE IMPUGNED QUESTION BEFO RE US IS TO DECIDE AS TO WHETHER THE ASSESSEE HAS COMPLIED WITH THE DIRECTIO NS ISSUED BY HONBLE ITAT IN THE FIRST ROUND OF LITIGATION. IN THIS CONTEXT LD. AR REPRESENTING THE ASSESSEE SUBMITTED THAT SHRI KETAN SHETH WHO IS THE PARTNER IN THE FIRM I.E. THAT IS SENSEX FINANCIAL CONSULTANCY IS BROTHER IN LAW OF THE ASSE SSEE AND SENSEX FINANCIAL CONSULTANCY HEREINABOVE REFERRED TO AS SENSEX AS HAVING ITS OWN PAN NO. 6 ITA NO. 4867 4 868 &4870/MUM/14 SMT. HARSHA NILESH SHETH VS. ITO AAXFS 5897A AND SAID FIRM HAS RECEIVED MONEY FROM K ETAN SHETH WHO IS PROPRIETOR OF KETAN SHETH AND COMPANY (PROPRIETARY CONCERN) AND THE SAID FIRM HAD AVAILED OVERDRAFT/ CREDIT FACILITY SANCTIONED F ROM JANATA SAHAKARI BANK LTD. VIDE SANCTION LETTER DATED 21.08.1998. LD. AR ALSO DRAWN OUR ATTENTION TO PAGE NO. 27 WHICH CONTAINS SANCTION LETTER DATED 21.08.1998 IN FAVOUR OF KETAN SHETH BY JANATA SAHAKARI BANK LTD. AND AT PAGE NO. 2 OF PAPE R BOOK WHICH CONTAINS BANK STATEMENT OF KETAN SHETH AND PAGE NO.26 OF PAPER BO OK WHICH CONTAINS BALANCESHEET OF KETAN SHETH SHOWN LOAN OF RS.75 LAK HS GIVEN TO SENSEX. THE LD. AR ALSO DRAWN OUR ATTENTION TO PAGE NO.12 OF PAPER BOOK WHICH CONTAINS BANK STATEMENT OF KETAN SHETH AND COMPANY SHOWING LOAN A MOUNT TO THE ASSESSEE AND BANK STATEMENT OF ASSESSEE REFLECTING RECEIPTS OF R S.75 LAKHS. IT WAS FURTHER SUBMITTED BY LD. AR THAT THE ABOVE FACTUAL POSITION HAVE ALREADY BEEN CONFIRMED BY THE ITO IN HIS REMAND REPORT DATED 01.03.2004 PR EPARED DURING THE COURSE OF THE APPELLATE PROCEEDINGS IN THE FIRST ROUND. IT WAS FU RTHER SUBMITTED THAT ASSESSEE HAS DISCHARGED HIS PRIMARY ONUS OF PROVING THE SOURCE O F FUNDS AS WELL AS THE SOURCE OF SOURCE OF FUNDS. THE ENTRIES FROM WHOM THE FUNDS HA VE BEEN RECEIVED ARE ASSESSED TO INCOME TAX. IT WAS FURTHER ARGUED THAT THE LOAN TO HARSHA SHETH HAS BEEN REFLECTED IN THE BOOKS OF RESPECTIVE LEDGER AND THE KETAN SHETH IN HIS CAPACITY AS PARTNER OF SENSEX ALSO FILED CONFIRMATION THEREBY CONFIRMING THE TRANSACTION IN RESPONSE TO THE NOTICE U/S 133(6) OF THE ACT. LD. A R FURTHER SUBMITTED THAT SINCE 7 ITA NO. 4867 4 868 &4870/MUM/14 SMT. HARSHA NILESH SHETH VS. ITO THE ASSESSEE HAD DISCHARGED HER PRIMARY ONUS THEREF ORE ADDITIONS OF RS.7 38 784/- OUGHT TO BE DELETED. 8.1 ON THE OTHER HAND LD. DR RELIED UPON THE ORDERS PASSED BY LOWER AUTHORITIES. 8.2 AFTER CONSIDERING THE RIVAL CONTENTIONS WE ARE OF THE CONSIDERED VIEW THAT THE AO AS WELL AS CIT(A) WHILE PASSING THEIR RESPEC TIVE ORDERS HAVE CATEGORICALLY MENTIONED THAT THE LOAN SANCTION OF CASH CREDIT OF RS.20 CRORES WAS MADE TO KETAN SHETH AND CO. AND THE DOCUMENT IN RELATION THEREOF IS OF NO CONSEQUENCE SINCE THE LOAN RECEIVED BY THE ASSESSEE WAS PERTAINING TO PER IOD 01.04.1998 TO 31.03.1999 RELEVANT TO AY 1999-2000 WHEREAS THE LOAN SANCTION LETTER PERTAIN TO F.Y. 01.04.1999 TO 31.03.2000 RELEVANT TO AY 2000-200. HOWEVER BEFORE US FOR THE FIRST TIME SPECIFIC STAND HAS BEEN TAKEN REGARDING THE LOAN SANCTION LETTER DATED 21.08.1998 FOR OVERDRAFT/CREDIT FACILITY FOR SANCTI ON OF LOAN IN FAVOUR OF KETAN SHETH AND CO. BY JANATA SAHAKARI BANK THE DOCUMENT OF WHICH IS AT PAGE NO. 27 OF PAPER BOOK AND THEREAFTER KETAN SHETH ADVANCED LOAN OF RS.3 LAKHS TO SENSEX FINANCIAL CONSULTANCY ON 04.02.1999 AND ON 04.2.99 SENSEX ADVANCED LOAN OF RS.75 LAKHS TO THE ASSESSEE. SINCE THE CRUCIAL POINT INVOLVES IN THE PRESENT CAS E IS WITH REGARD TO THE ORIGIN OF AMOUNT OF LOAN RECEIVED BY THE ASSESSEE A LONG WITH ITS ROTATION. IN THIS RESPECT WE HAVE ALSO NOTED THAT NO INQUIRY HAS BEEN CONDUCTED BY THE AO FROM JANTA SAHAKARI BANK WHEN IT HAS ALREADY SUBMITTED O N RECORD THAT THE JANTA 8 ITA NO. 4867 4 868 &4870/MUM/14 SMT. HARSHA NILESH SHETH VS. ITO SAHAKARI BANK WAS ALSO PART OF SCAM BUT IT IS AN UN DISPUTED FACT THAT ASSESSEE WAS NOT PART OF SCAM. THEREFORE NOW IT HAS BECOME MORE NECESSARY TO VERIFY THE FACTS OF AO REGARDING THE SANCTION OVERDRAFT/CREDIT FACIL ITY UPTO 10 CRORE BY JANTA SAHAKARI BANK TO KETAN SHETH AND PAYMENT OF ADVANCE OF LOAN OF RS.3 CRORES BY KETAN SHETH TO SENSEX. IN THIS REGARD ALL PAPERS HA VE BEEN PLACED BEFORE US. THEREFORE CONSIDERING THE FACTS AS WELL AS DOCUMEN TS PLACED BEFORE US WE SET ASIDE THE MATTER TO THE FILE OF AO WITH THE DIRECTION TO VERIFY THE AFORE MENTIONED FACTS AND IN CASE THE SAID FACTS AND DOCUMENTS ARE FOUND CORRECT THEN IT WOULD BE PRESUMED THAT THE ASSESSEE HAS DISCHARGE HIS PRIMAR Y ONUS AND THEREFORE ADDITION OF RS.7 38 784/- WOULD BE DELETED. 8.3 NOW COMING TO THE AFORE SAID LOAN OF RS.25 000 /- FROM GILTEDGE MANAGEMENT SERVICES IS CONCERNED IN THIS RESPECT W E HAVE PERUSED THE BANK STATEMENT OF GILTEDGE MANAGEMENT SERVICES WHICH IS AT PAGE NO.30 OF THE PAPER BOOK WITH RESPECT TO PAYMENT OF RS.25 000 ON 4.5.19 98. IN THIS CONTEXT WE NOTICED THAT GILTEDGE WAS A NON BANKING FINANCE C OMPANY AND HAS ADVANCED LOAN OF RS.25 000/- TO THE ASSESSEE IN THIS RESPECT BAN K STATEMENT HAS ALREADY BEEN PLACED ON RECORD AND EVEN DURING THE COURSE OF ASSE SSMENT PROCEEDING BEFORE AO IN RESPONSE TO NOTICE U/S 133(6) OF THE ACT GILTE DGE SUBMITTED ITS RETURN OF INCOME AND COPY OF BANK STATEMENT REFLECTING RECEIP T OF RS.25 000. SINCE FROM THE 9 ITA NO. 4867 4 868 &4870/MUM/14 SMT. HARSHA NILESH SHETH VS. ITO AFORE MENTIONED DOCUMENTS IT WAS REFLECTED THAT THE RE WAS SUFFICIENT CREDIT BALANCE IN THE CASE OF GILTEDGE AND THE SAID AMOUNT HAS B EEN PAID THROUGH CHEQUE WHICH ITSELF PROVE THE ORIGIN OF AMOUNT. THEREFORE AFTER ANALYSING THE FACTS OF THE PRESENT CASE WHEREIN THE ASSESSEE HAS DISCHARGED ITS PRIMAR Y ONUS WE DELETE THE ADDITIONS OF RS.25 000/-. 9. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ITA NO. 4868/MUM/2014 (A.Y. 2000-01) 10. AS FAR AS FACTS OF ITA NO. 4868/MUM/2014 IS CON CERNED THE SAME ARE IDENTICAL HOWEVER THE ASSESSEE HAS CHALLENGED THE ADDITIONS MADE BY REVENUE AUTHORITIES U/S 68 OF THE ACT AS LOAN RECEIVED FROM KETAN SHETH AND CO. OF RS.21 79 027/- AND NILESH OF RS. 2 25 000/- TO OBTA IN RS.24 04 027/-. SINCE ALL THE GROUNDS RAISED BY THE ASSESSEE ARE INTER-CONNECTED AND INTER-RELATED THEREFORE WE THOUGHT IT FIT TO DISPOSE OFF THE SAME THROUGH THE PRESENT APPEAL. 11. LD. AR APPEARING ON BEHALF OF ASSESSEE DRAWN OU R ATTENTION TO THE PAPER BOOK CONTAINING COPY OF SANCTION LETTER DATED 03.12 .1999 WITH RESPECT TO OVERDRAFT/CREDIT FACILITY UPTO RS.20CRORES BY JANTA SAHAKARI BANK TO KETAN SHETH AND CO. WHICH IS AT PAGE NO. 14 -15 OF PAPER BOOK. LD. AR ALSO DRAWN OUR ATTENTION TO BANK STATEMENT OF KETAN SHETH AND CO. REFLECTING ADVANCE OF RS. 7 25 000/- TO THE ASSESSEE WHICH IS AT PAGE NO.3 AN D BANK STATEMENT OF KETAN SHETH AND CO. REFLECTING ADVANCE OF RS.16 70 680/- TO THE ASSESSEE AND 10 ITA NO. 4867 4 868 &4870/MUM/14 SMT. HARSHA NILESH SHETH VS. ITO CORRESPONDING RECEIPT IN THE ASSESSEES BANK ACCOUN T WHICH ARE AT PAGE NO. 16 & 17 OF PAPER BOOK AND STATEMENT OF ASSESSEES ACCOUNT I N THE BOOKS OF KETAN SHETH AND CO. AS ON 31.03.2001 CONFIRMED BY THE ASSESSEE WHIC H IS AT PAGE NO.2. IN ADDITION OUR ATTENTION WAS ALSO DRAWN TO AUDITED ACCOUNTS OF KETAN SHETH AND CO. FOR FY 2000-01 WHETHER THE ASSESSEES NAME IS REFLECTED UN DER LOANS AND ADVANCES AND ACCOUNTS WHICH FILED WITH THE RETURN OF INCOME OF K ETAN SHETH AND CO. HAVE BEEN ACCEPTED BY THE DEPARTMENT. THE SAID DOCUMENTS ARE ANNEXED AT PAGE NO. 4 & 5 OF THE PAPER BOOK. LD. AR FURTHER SUBMITTED THAT DURIN G THE YEAR THE ASSESSEE HAD BORROWED FUND AND EVEN REPAID IN PART LOAN FROM KET AN SHETH WHO IS A PROPRIETARY CONCERN OF KETAN SHETH AND CO WHO IS ASSESSEES BRO THER IN LAW. LD. AR FURTHER DRAWN OUR ATTENTION TO THE CONFIRMATION FROM THE AS SESSEE TO NILA SHETH IN RESPECT OF PAYMENT OF RS.2 25 000/- WHICH IS AT PAGE NO. 18 OF PAPER BOOK AND BANK STATEMENT OF ASSESSEE REFLECTING THE RECEIPT OF RS. 2 25 000/- WHICH IS AT PAGE NO.20 OF PAPER BOOK. 12. AFTER HEARING ARGUMENTS OF BOTH THE PARTIES AND AFTER CONSIDERING MATERIALS ON RECORD AS WELL AS ORDERS PASSED BY HONBLE ITAT WE ARE OF THE CONSIDERED VIEW THAT ABOVE FACTUAL POSITION HAS BEEN VERIFIED BY IT O IN THE REMAND REPORT DATED 01.03.2004 IN THE FIRST ROUND OF PROCEEDINGS. THE ASSESSEE HAS PROVED THE SOURCE OF FUNDS AS WELL AS THE SOURCE OF THE SOURCE IN THE CASE OF LOAN RECEIVED FROM KETAN SHETH AND CO. SINCE THE LOAN HAS ALREADY BEEN PARTI ALLY REPAID DURING THE YEAR 11 ITA NO. 4867 4 868 &4870/MUM/14 SMT. HARSHA NILESH SHETH VS. ITO UNDER CONSIDERATION AND ALL RECEIPTS AND PAYMENTS A RE THROUGH BANKING CHANNELS AND EVEN THE LOAN HAS BEEN REFLECTED IN THE ACCOUNT S OF KETAN SHETH AND CO. FILED ALONG WITH THE RETURN OF INCOME AND ACCEPTED AS SUC H BY ITO. NO ENQUIRY HAS BEEN CONDUCTED IN THE CASE OF THE LENDER AND SOURCE OF F UNDS HAS BEEN ACCEPTED. THE BENCH WAS ALSO CONFIRMED THAT THERE WAS NO PROGRESS IN THE SCAM PROCEEDINGS AGAINST KETAN SHETH. SINCE THE DOCUMENTS IN ITA NO .4867/MUM/2014 WE HAVE SET ASIDE THE MATTER TO THE FILE OF AO WITH THE DIR ECTION TO VERIFY THE AFORE MENTIONED FACTS AND DOCUMENTS AND SINCE THE FACTS I N THE PRESENT CASE IN RESPECT OF THE AMOUNT LENDED BY KETAN SHETH ARE APPLICABLE MUT ATIS MUTANDIS. THEREFORE SIMILAR DIRECTIONS ARE GIVEN IN THE PRESENT CASE WH ILE SETTING ASIDE THE MATTER TO THE FILE OF AO WITH THE DIRECTION TO VERIFY THE AFORE M ENTIONED FACTS AND DOCUMENTS AND THE SAID FACTS AND IF DOCUMENTS ARE FOUND CORRE CT THEN IT WOULD BE PRESUMED THAT THE ASSESSEE HAVE DISCHARGED HER PRIMARY ONUS AND THEREFORE ADDITIONS OF RS.21 79 027/- OUGHT TO BE DELETED. 13. AS FAR AS LOAN PAID BY NILA SHETH OF RS.2 25 00 0/- IS CONCERNED IN THIS RESPECT REQUIRED DOCUMENTS HAVE ALREADY BEEN PERUS ED BY US WHICH IS IN THE SHAPE OF CONFIRMATION FROM THE ASSESSEE TO NILA SHETH AT PAGE NO.11 AND BANK STATEMENT OF THE ASSESSEE REFLECTING THE RECEIPT OF RS.2 25 0 00/- WHICH IS AT PAGE NO.20 OF THE PAPER BOOK AND THE ABOVE FACTUAL POSITION HAS BEEN VERIFIED BY THE ITO IN ITS REMAND REPORT. MOREOVER IT IS ALSO REFLECTED IN TH E DOCUMENTS THAT THERE WAS 12 ITA NO. 4867 4 868 &4870/MUM/14 SMT. HARSHA NILESH SHETH VS. ITO SUFFICIENT BALANCE IN THE ACCOUNT OF NILA SHETH AND NILA SHETH HAS PAID THE AMOUNT OF RS.2 25 000/- THROUGH CHEQUE WHICH IS ALSO REFLE CTED IN HER BANK STATEMENT. THEREFORE AFTER CONSIDERING THE FACTS OF THE CASE WHEREIN THE ASSESSEE HAS DISCHARGED HER PRIMARY ONUS HENCE WE DELETE THE AD DITIONS OF RS.2 25 000/-. ITA NO. 4870/MUM/2014 (A.Y. 2000-01) 10. AFTER ANALYZING THE ABOVE ORDERS IN ITA NO. 486 7/MUM/2014 AND 4868/MUM/2014 WE FIND THAT IDENTICAL QUESTION INVO LVED IN THE PRESENT CASE HAVE ALREADY BEEN DECIDED IN ABOVE ITA NO.4867/MUM/2014 AND 4868/MUM/2014. THEREFORE RESPECTFULLY FOLLOWING OUR OWN DECISION I N THE ABOVE ITAS AND IN ORDER TO MAINTAIN JUDICIAL CONSISTENCY WHICH IS APPLICABL E MUTATIS MUTANDIS IN THE CASE OF THE ASSESSEE WITH THE SAME DIRECTIONS IN RESPECT OF KETAN SHETH AND CO. NILESH SHETH AND GILTEDGE FINANCIAL AND MANAGEMENT SERVICE S AS GIVEN IN ITA NO. 4867/MUM/2014 AND 4868/MUM/2014. IN THE NET RESULT THE APPEALS FILED BY THE ASSESSE E ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH SEPTEMBER 2016 SD/- SD/- (R.C. SHARMA) (SANDEEP GOSAIN ) $ / ACCOUNTANT MEMBER &' $ / JUDICIAL MEMBER ( ) MUMBAI; *$ DATED :30.09.2016 PS. ASHWINI 13 ITA NO. 4867 4 868 &4870/MUM/14 SMT. HARSHA NILESH SHETH VS. ITO / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. + ( ) / THE CIT(A) 4. + / CIT - CONCERNED 5. ./0 ''12 12# ( ) / DR ITAT MUMBAI 6. 045 6 / GUARD FILE / BY ORDER / !'# (DY./ASSTT. REGISTRAR) #$ % ( ) / ITAT MUMBAI