J.C. Malik, New Delhi v. ACIT, New Delhi

ITSSA 24/DEL/2010 | misc
Pronouncement Date: 20-11-2014 | Result: Dismissed

Appeal Details

RSA Number 2420116 RSA 2010
Assessee PAN ABMPM2196F
Bench Delhi
Appeal Number ITSSA 24/DEL/2010
Duration Of Justice 4 year(s) 6 month(s) 17 day(s)
Appellant J.C. Malik, New Delhi
Respondent ACIT, New Delhi
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 20-11-2014
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 20-11-2014
Date Of Final Hearing 11-11-2014
Next Hearing Date 11-11-2014
Assessment Year misc
Appeal Filed On 03-05-2010
Judgment Text
IT (SS)A. NO. 160/DEL/2006 & 24/DEL/2010 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D NEW DELHI BEFORE SHRI H.S. SIDHU JUDICIAL MEMBER AND SHRI T.S. KAPOOR ACCOUNTANT MEMBER I.T. (SS) A. N O. 160/DEL/2006 B.P.: 1.4.90 TO 6.7.2000 JAGDISH CHAND MALIK PROP. M/S MADAN LAL KULDEEP KUMAR 159 - 161 KATRA BANYAN FATEHPURI DELHI 110 006 (PAN:ABMPM2196F) VS. DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE - 1 NEW DELHI (APPELLANT) (RESPONDENT) AND IT(SS)A. NO. 24/DEL/2010 B.P.: 1.4.90 TO 6.7.2000 J.C. MALIK C/O RAJIV SAXENA & CO. (ADVOCATES AND SOLICITORS) 318 POCKET - D MAYUR VIHAR - II DELHI 11091 (PAN:ABMPM2196F) VS. ACIT CIRCLE - 28(1) NEW DELHI ASSESSEE BY : SH. GAUTAM JAIN CA & PIYUSH KUMAR KAMAL ADV . DEPARTMENT BY : MS. SHULEKHA VERMA CIT(DR) DATE OF HEARING : 1 7 . 11 .2014 DATE OF ORDER : 20. 11 .2014 ORDER PER H.S. SIDHU : J M TH ESE ARE THE APPEALS FILED BY THE ASSESSEE EMANATE OUT OF SEPARATE ORDER S PASSED BY THE LD. CIT(A) NEW DELHI PERTAINING TO BLOCK PERIOD 1.4.1990 TO 6.7.2000 . IT (SS)A. NO. 160/DEL/2006 & 24/DEL/2010 2 2. THE GROUND RAISED IN IT(SS)A NO. 160/DEL/2006 READ AS UNDER: - 1. THAT THE LD. CIT(A) HAS GROSSLY ERRED BOTH IN LAW AND ON FACTS IN UPHOLDING THE ASSESSMENT FRAMED BY THE DCIT BY INVOKING THE PROVISIONS OF SECTION 158BD READ WITH SECTION 158BC OF I.T. ACT. IN DOING SO HE HAS MISCONSTRUED THE PROVISION OF I.T. ACT AND HAS FAILED TO APPRECIA TE THAT AS THERE WAS NO EVIDENCE FOUND AS A RESULT OF SEARCH FOR ASSUMING THAT THERE WAS AN UNDISCLOSED INCOME WHICH CAN BE ASSESSED UNDER THE PROVISIO NS OF CHAPTER XIVB OF I.T. ACT THE BOTH INITIATION AND FRAMING OF ASSESSMENT WAS WITHOUT JURISDICTI ON. 2. THAT THE CIT(A) HAS FAILED TO APPRECIATE THAT IN ANY CASE THE ORDER PASSED BY DCIT WAS WITHOUT SATISFYING THE MANDATORY REQUIREMENTS OF THE AFORESAID CHAPTER AND ALSO WITHOUT FULFILLING THE PRECONDITION FOR MAKING AN ORDER OF ASSESSMENT. 3.THAT THE LD. CIT(A) HAS FURTHER ERRED IN FAILING TO APPRECIATE THAT THE ORDER OF BLOCK ASSESSMENT HAD BEEN MADE WITHOUT PROVIDING TO THE ASSESSEE A FAIR PROPER AND MEANINGFUL OPPORTUNITY AND THE ASSUMPTION THAT THERE HAS BEEN AN UNDISCLOSED INCOME IS BASED O N WHOLLY IRRELEVANT ARBITRARY AND UNFOUNDED CONSIDERATIONS. THE ASSESSMENT SO FRAMED HAS BEEN MADE IN A HIGHLY ARBITRARY WHIMSICAL AND CAPRICIOUS MANNER. 4. THAT THE LD. CIT(A) HAS FAILED TO APPRECIATE THAT SUCH AN UNDISCLOSED INCOME HAS TO BE COMPUTED O N THE BASIS OF EVIDENCE FOUND AS A RESULT OF SEARCH OR REQUISITION OF BOOKS OF ACCOUNT OR DOCUMENTS AND SUCH OTHER MATERIAL OR INFORMATION AS ARE AVAILABLE WITH THE AO AND THEREFORE IT (SS)A. NO. 160/DEL/2006 & 24/DEL/2010 3 SUCH INCOME WHICH HAD BEEN ALREADY PROCESSED CANNOT BE PROCESSED UNDER THE AFORESAID CHAPTER. 5. THAT THE LD. CIT(A) HAS GROSSLY ERRED BOTH IN LAW AND ON FACTS BY ARBITRARILY BRUSHING ASIDE THE CONTENTION OF ASSESSEE THAT NO NOTICE U/S. 158BD WAS EVER ISSUED BEFORE FRAMING THE IMPUGNED ASSESSMENT. THE FINDING RECORDED THAT AS SESSMENT ORDER CLEARLY INDICATES THAT NOTICE U/S. 158BD ISSUED ON 31.7.2002 AND SAME WAS SERVED ON 16.8.2002 IS CONTRARY TO THE MATERIAL AVAILABLE ON RECORD AND AS SUCH IS BAD IN LAW. THE FINDING SUCH A NOTICE WAS SERVED ON THE ASSESSEE IS UNSUPPORTED BY A NY EVIDENCE ON RECORD. 6. THAT THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THAT THERE WAS NOTHING TO INDICATE THAT AO COULD HAVE FORMED AN OPINION AND ARRIVED AT SATISFACTION THAT THE ASSESSEE HAD NOT DISCLOSED ITS INCOME. THAT THE LD. CIT(A) HAS FURTHER E RRED IN ASSUMING THAT SATISFACTION WAS RECORDED THAT TOO IN WRITING WHICH INSPITE OF REPEATED REQUESTS HAVE NOT BEEN MADE AVAILABLE TO THE ASSESSEEE. 7. THAT THE LD. CIT(A) HAS ERRED BOTH IN LAW AND ON FACTS IN UPHOLDING AN AGGREGATE ADDITION OF RS. 25 1 2 076/ - U/S. 69 OF THE I.T. ACT BEING ALLEGED COMMISSION INCOME EARNED BY CALCULATING @0.5% ON THE AMOUNT OF ALLEGED PURCHASES MADE AGAINST FORM ST - 35 FOR BLOCK PERIOD FROM CONCERNS OF JMD GROUP BY FAILING TO APPRECIATE THAT NO SUCH ADDITION COULD HAVE BE EN SUSTAINED ON THE FACTS OF THE INSTANT CASE. 8. THAT THE FINDINGS RECORDED THAT APPELLANT HAS ADMITTED THAT SUCH PURCHASES ARE NOT GENUINE PURCHASES AND THE IT (SS)A. NO. 160/DEL/2006 & 24/DEL/2010 4 TRANSACTIONS WERE SHOWN JUST TO EARN COMMISSION OF 0.1% TO 0.7% IS HIGHLY INSUFFICIENT TO WARRA NT SUCH AN ADDITION WHICH IS OTHERWISE NOT LEGALLY TENABLE AND JUSTIFIED ON THE FACTS OF THE INSTANT CASE. 9. THAT THE LD. CIT(A) HAS ERRED IN HOLDING THE CHARGE OF INTEREST U/S. 158BFA IS CONSEQUENTIAL IN AS MUCH AS NO SUCH INTEREST WAS WARRANTED ON THE FACTS OF THE INSTANT CASE. 3. THE GROUND RAISED IN IT(SS)A NO. 24/DEL/2010 READ AS UNDER: - 1. THAT ID. CIT (A) HAS ERRED IN LAW AS WELL AS ON FACTS IN CONFIRMING THE PENALTY U/S. 158BFA (2) OF THE IT ACT 1961 AMOUNTING TO RS. 15 07 246/ - . 2. THAT THE LD. CIT (A) AND ACIT HAVE FAILED TO APPRECIATE THAT A) IT IS BARRED BY LIMITATION AS PER CLAUSE (C) OF SUB SECTION (3) OF SECTION 158 BFA ITSELF. B) LEVY OF PENALTY IS NOT AUTOMATIC MERELY BECAUSE ADDITIONAL INCOME HAS BEEN ASSESSED THOUGH APPEA L BEFORE ITAT IS STILL PENDING TO BE DISPOSED ON QUANTUM. C) PENALTY PROCEEDINGS ARE INDEPENDENT AND ALL THE RELEVANT MATERIAL SOUGHT TIME AND AGAIN WAS REQUIRED TO BE SUPPLIED BEFORE LEVYING PENALTY. D) LEGISLATURE HAS PROVIDED THE PROVISION OPTIONAL IN ORDER TO LOOK MERITS OF EACH CASE WHILE ASSESSING OFFICER HAS GIVEN NO REASON FOR IMPOSING PENALTY ON MERITS. 3. THAT BOTH ORDER U/S 158BFA AND ORDER OF CIT (A) ARE IT (SS)A. NO. 160/DEL/2006 & 24/DEL/2010 5 A) BECAUSE NO REASONABLE OPPORTUNITY WAS PROVIDED TO THE APPELLANT AS PER THIS PROVI SION EITHER BY ACIT OR BY CIT (A) DESPITE APPLICATION FOR ADJOURNMENT WAS FILED BEFORE HIM. B) BECAUSE NO PREVIOUS APPROVAL WAS OBTAINED AS PROVIDED BOTH ORDER AND APPROVAL WERE OF THE SAME DATE AND LD. CIT CA) HAS IGNORED THIS FACTS. C) BECAUSE NO SATISFACTION HAS BEEN RECORDED EITHER OF THE ASSESSING OFFICER OR THE ADDITIONAL COMMISSIONER OF THE INCOME TAX WHICH IS MANDATORY FOR ANY PENAL PROVISION. D) BECAUSE TAX HAS BEEN CALCULATED ON ESTIMATED INCOME WHAT WAS NEVER EARNED AND PENALT Y IS NOT LEVIABLE WHEN THERE IS ESTIMATION OF INCOME. 3. THAT LD. CIT CA) AND ACIT HAVE ALSO ERRED IN LAW AS WELL AS ON FACTS AND FAILED TO APPRECIATE THAT ADMISSION DURING ASSESSMENT PROCEEDINGS WAS MADE UNDER FORCED CIRCUMSTANCES AS WAS ALSO EXPLAINED AND THIS REASON WAS NOT APPLICABLE FOR IMPOSING ANY CONFIRMING PENALTY. 4. THAT LD. CITCA) AND ACIT HAVE ALSO FAILED TO APPRECIATE THAT THERE WAS NO UNDISCLOSED INCOME SO AS TO LEVY PENALTY IN FACT APPELLANT HAS ALREADY DECLARED MORE INCOME AND PAID TAX ON HIGHER INCOME WHILE AO HIMSELF HAS MERELY ESTIMATED INCOME WHAT WAS NEVER EARNED DURING ASSESSMENT. IT IS THEREFORE PRAYED THAT PENALTY LEVIED U/ S. 158BFA BE CANCELLED. IT (SS)A. NO. 160/DEL/2006 & 24/DEL/2010 6 4. THE BRIEF FACTS OF THE CASE ARE THAT IN THIS CASE A SEARCH AND SEIZURE OPER ATION U/S. 132 OF THE I.T. ACT 1961 WAS CONDUCTED IN THE JMD GROUP OF CASES ON 6.7.2000. DURING THE COURSE OF BLOCK ASSESSMENT PROCEEDINGS U/S. 158BC IN THE JMD GROUP OF CASES THE ISSUE OF SALES MADE BY JMD GROUP TO VARIOUS PARTIES AGAINST FORM ST - 35 WA S EXAMINED AND ADDITION ON ACCOUNT OF COMMISSION WAS MADE. 5. AGAINST THE ORDER OF THE ASSESSING OFFICER ASSESSEE APPEALED BEFORE THE LD. CIT(A) WHO VIDE IMPUGNED ORDER DATED 2.3.2005 DISMISSED THE APPEAL OF THE ASSESSEE. 6. AGAINST THE AFORESAID ORDER DATED 2.3.2005 PASSED BY THE LD. CIT(A) ASSESSEE APPEALED BEFORE US. 7. LD. COUNSEL OF THE ASSESSEE IN SUPPORT OF HIS CONTENTION FILED A PAPER BOOK CONTAINING PAGES 1 TO 76 HAVING SYNOPSIS IN BRIEF AND COPIES OF VARIOUS ORDERS OF THE TRIBUNAL AND OTHER AUTHORITIES AND OTHER DOCUMENTARY EVIDENCE SUPPORTING HIS VERSION / ARGUMENTS. DURING THE HEARING LD. COUNSEL OF THE ASSESSEE DRAW OUR ATTENTION TOWARDS THE ASSESSMENT ORDER DATED 31.8.2004 PASSED BY THE AO UNDER SECTION 158BD READ WITH SECT ION 158BC OF THE I.T. ACT. HE ALSO DRAW OUR ATTENTION TO THE FACTS OF THE CASE OF THE ASSESSEE AND MAINLY STATED THAT THE ADDITION IN DISPUTE HAS BEEN MADE WITHOUT ANY BASIS AND EVIDENCE. THEREFORE THE ADDITION SO MADE IS UNSUSTAINABLE. HE FURTHER STA TED THAT THE IMPUGNED ORDER OF ASSESSMENT IS BASED ON THE CONTENTIONS MADE IN THE CASE OF M/S SAJAY TRADERS SUPER TRADERS AND M/S JMD PROPERTIES PVT. LTD. WHICH TOO HAD BEEN MADE ON THE BASIS OF THE STATEMENT OF THE APPELLANT DATED 19.10.2000 AND NOT ON ANY EVIDENCE FOUND AS A RESULT OF SEARCH IN THE ABSENCE OF ANY MATERIAL FOUND DURING SEARCH AND IT (SS)A. NO. 160/DEL/2006 & 24/DEL/2010 7 SEIZURE ON SUCH A PERSON ADDITION IS NOT SUSTAINABLE IN THE EYES OF LAW. IN SUPPORT OF HIS CONTENTIONS HE CITED THE FOLLOWING CASES LAWS: - - CIT VS. BALAJ I WIRE (P) LTD. 304 ITR 393 (DEL.) - CIT VS. BANSAL HIGH CARBONS (P) LTD. 223 CTR 179 (DEL.) - CIT VS. BLUECHIP CONSTRUCTION CO. (P) LTD. 213 CTR 530 (DEL.) - CIT VS. SUNIL BHALA AND RAJGUL CREDITNVEST (P) LTD. 238 CTR 18 (DEL.) - CIT VS. RAVI KANT JAIN 250 ITR 141 (DEL) - CIT VS. KHUSHLAL CHAND NIRMAL KUMAR 263 ITR 77 (DEL.) - MORARJEE COGULDAS SPG CO. LTD. VS. DCIT 95 IRD 1 TM (BOM) - CIT VS. MAKHANI AND TYAGI (P) LTD. 267 ITR 433. 7.1 HE FURTHER STATED THAT EVEN OTHERWISE ADDITIONS MADE IN THE HANDS OF M/S SANJAY TRADERS AND M/S SUPER TRADERS STAND DELETED BY THE TRIBUNAL IN THE ORDER DATED 23.6.2006. HE HAS FILED THE COPY OF THE SAME BEFORE US. HE HAS READ PARA 7 OF THE AFORESAI D ORDER DATED 23.6.2006. 7.2 ON THE OTHER HAND LD. DEPARTMENTAL REPRESENTATIVE RELIED UPON THE ORDERS OF THE LOWER AUTHORITIES AND CONTROVERTED THE ARGUMENTS ADVANCE BY THE LD. COUNSEL OF THE ASSESSEE AND SHE HAS ALSO FILED TWO PAPER BOOKS IN WHICH S HE HAS ATTACHED VARIOUS ORDERS OF THE SUPREME COURT OF INDIA HIGH COURT AND THE TRIBUNAL. SHE HAS ALSO FILED A STATEMENT OF JAGDISH CHANDER MALIK DATED 27.1.2000 IT (SS)A. NO. 160/DEL/2006 & 24/DEL/2010 8 19.10.2000 27.11.2002 AND 23.12.2002; NOTICE ISSUED U/S. 158BD; AND REASONS FOR ISSUING NOTICE U/S. 158BD. SHE MAINLY DRAW OUR ATTENTION TOWARDS THE ORDER DATED 23.6.2006 PASSED BY THE ITAT DELHI BENCH F NEW DELHI IN THE CASE OF DCIT VS. M/S SANJAY TRADERS & ORS. IN ITA NO. 445&446/DEL/2003 (BP: 1.4.90 TO 6.7.2000 ) AND ESPECIALLY SHE AL SO DRAW OUR ATTENTION TOWARDS PARA 7 OF THE AFORESAID ORDER AND STATED THAT ASSESSEE HAS NOT FILED ANY DOCUMENTARY EVIDENCE ESTABLISHING THAT ASSESSEE HAS RETRACTED HIS EARLIER STATEMENT DATED 19.10.2000. SHE REQUESTED THAT ASSESSEE MAY BE DIRECTED TO FILE THE COPY OF RETRACTION OF STATEMENT OF SH. JC MALIK DATED 19.10.2010. ON ASKING FROM THE BENCH TO THE LD. COUNSEL OF THE ASSESSEE TO FILE A COPY OF A RETRACTION OF STATEMENT DATED 19.10.2000 HE WAS UNABLE TO FILE THE SAME AND STATED THAT ASSESSEE IS A POOR PERSON AND COULD NOT PURSUE THE MATTER IN A PROPER MANNER BEFORE THE LOWER AUTHORITIES. THEREFORE SOME MORE OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE BEFORE THE AO TO SUBSTANTIATE HIS CLAIM. 8. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORD S ESPECIALLY THE ORDERS OF THE LOWER AUTHORITIES SYNOPSIS IN BRIEF FILED BY THE ASSESSEE S COUNSEL AND COPIES OF JUDGMENTS AND PAPER BOOKS FILED BY THE LD. DR. WE FIND THAT AS PER THE ARGUMENTS OF BOTH THE PARTIES IT AN ADMITTED FACT THAT BOTH THE PART IES REITERATED AND RELIED ON THE CONTENTS OF PARA 7 OF THE ITAT S ORDER DATED 23.6.2006 PASSED BY THE ITAT DELHI BENCH F NEW DELHI IN THE CASE OF DCIT VS. M/S SANJAY TRADERS & ORS. IN ITA NO. 445&446/DEL/2003 (BP: 1.4.90 TO 6.7.2000) WHICH IS REPRODUC ED HEREUNDER FOR THE SAKE OF CONVENIENCE. 7 . WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IT IS THE AO WHO RELIED ON THE SUBMISSIONS OF THREE PARTIES. THUS THREE PARTIES ARE WITNESSES OF THE IT (SS)A. NO. 160/DEL/2006 & 24/DEL/2010 9 REVENUE RATHER THAN OF THE ASSESSEE. AT NO POINT OF ITME TH E ASSESSEE HAS MADE A STATEMENT THAT THE TRANSACTIONS ARE NOT GENUINE. SINCE THERE IS NO SUCH STATEMENT BY THE ASSESSEE THE QUESTION OF RETRACTION DO NOT ARISE IT IS SETTLED PRINCIPLE OF NATURAL JUSTICE THAT IF STATEMENT OF ANY PERSON IS RELIED AGAINST ANY PERSON THE COPY OF SUCH STATEMENT SHOULD BE FURNISHED TO THE PERSON AGAINST WHOM SUCH STATEMENT IS REQUIRED TO BE USED. THE AFFECTED ALSO SHOULD BE AFFORDED AN OPPORTUNITY TO CROSS EXAMINE THE PERSON MAKING SUCH STATEMENT. SINCE NO ENQUIRY WITH SUCH O THER PERSONS THEY HAVE RETRACTED THEIR EARLIER STATEMENT AND HAVING ALSO FILED THE AFFIDAVIT IN THIS REGARD THE ASSESSEE WAS NOT REQUIRED TO PROVE ANYTHING FURTHER. THE AO CANNOT RELY UPON STATEMENT OF HIS WITNESSES AFTER THE SAME RETRACTED. THE AO HA S NOT PROVED THAT THE AFFIDAVITS FILED BY THESE PERSONS ARE INCORRECT. THUS AFTER THE RETRACTION OF THE STATEMENTS BY THESE PERSONS NO EVIDENCE REMAINS WITH THE AO TO HOLD THAT THE TRANSACTIONS BY THE ASSESSEE WITH THESE THREE PERSONS IS NOT GENUINE AND THE ASSESSEE HAS ALSO PAID UNACCOUNTED COMMISSION. IT IS ALSO TO BE NOTED THAT THE PRESENT ASSESSMENTS ARE MADE U/S. 158BC. THE UNDISCLOSED INCOME CAN BE COMPUTED ONLY ON THE BASIS OF MATERIAL FOUND AS A RESULT OF SEARCH AND SUCH OTHER ENQUIRY RELA TING TO SUCH MATERIAL. DURING THE COURSE OF SEARCH NO MATERIAL IS FOUND WHICH SUGGESTS THAT THE ASSESSEE HAS INCURRED UNACCOUNTED EXPENDITURE BY WAY OF COMMISSION FOR SO CALLED SALES TRANSACTIONS. THUS IT (SS)A. NO. 160/DEL/2006 & 24/DEL/2010 10 NO PART CAN BE INCLUDED IN THE COMPUTATION AS UNDISCLOSED INCOME FOR THE BLOCK PERIOD. 8.1 IT IS AN ALSO ADMITTED FACT THAT ASSESSEE COULD NOT FILED ANY DOCUMENTARY EVIDENCE RETRACT ING HIS EARLIER STATEMENT DATED 19.10.2000 IN SPITE OF ASKING FROM THE BENCH. SECONDLY IN THE PRESENT APPEAL THE LD. C IT(A) - III NEW DELHI PASSED THE IMPUGNED ORDER DATED 2.3.2006 WHEREAS IN THE CASE OF M/S SANJAY TRADERS AND M/S SUPER TRADERS LD. FIRST APPELLATE AUTHORITY HAS PASSED AN ORDER FAVORING THE ASSESSEE AND DECIDED THE ISSUE IN FAVOR OF THE ASSESSEE VIDE O RDER DATED 9.7.2003 AGAINST WHICH THE REVENUE HAS FILED THE APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL VIDE ORDER DATED 23.6.2006 IN THE CASE OF DCIT VS. M/S SANJAY TRADERS & ORS. IN ITA NO. 445&446/DEL/2003 (BP: 1.4.90 TO 6.7.2000) HAS DISMISSED THE A FORESAID APPEALS FILED BY THE REVENUE. 8.2 AS EXPLAINED ABOVE BOTH THE PARTIES HAS READ OVER THE PARA 7 OF THE ORDER OF THE TRIBUNAL DATED 23.6.2006 AS AFORESAID. AFTER GOING THROUGH THE ORDERS PASSED BY THE REVENUE AUTHORITIES ALONGWITH THE DOCUMENT ARY EVIDENCE FILED BY THE PARTIES WE ARE OF THE VIEW THAT BOTH THE PARTIES MAINLY RELIED UPON THE ORDER DATED 23.6.2006 PASSED BY THE COORDINATE BENCH OF THE TRIBUNAL DELHI BENCH F NEW DELHI IN THE CASE OF DCIT VS. M/S SANJAY TRADERS & ORS. IN ITA NO. 445&446/DEL/2003 (BP: 1.4.90 TO 6.7.2000 AND EMPHASIS ON THE RETRACING STATEMENT OF THE ASSESSEE. WE ARE OF THE VIEW THAT DOCUMENTARY EVIDENCE FILED BY BOTH THE PARTIES REQUIRES THOROUGH EXAMINATION AT THE LEVEL OF THE ASSESSING OFFICER AFRESH UNDER THE L AW. ACCORDINGLY IN THE INTEREST OF JUSTICE THE ISSUES RAISED IN THIS APPEAL ARE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO DECIDE THE ISSUE IN DISPUTE AFRESH AFTER CONSIDERING THE DOCUMENTARY EVIDENCE AS PER LAW. NEEDLESS TO ADD THAT THE ASSESSEE SHOULD BE GIVEN ADEQUATE OPPORTUNITY OF BEING IT (SS)A. NO. 160/DEL/2006 & 24/DEL/2010 11 HEARD. HENCE THE IT(SS)A NO. 160/DEL/2006 STAND ALLOWED FOR STATISTICAL PURPOSES IN THE AFORESAID MANNER. IT(SS)A NO. 24/DEL/2010 10. SINCE WE HAVE ALREADY SET ASIDE THE ASSESSMENT ORDER TO THE FILE OF THE ASSESSING OFFICER AS AFORESAID THE PENALTY IMPOSED U/S. 158BFA(2) OF THE I.T. ACT IN THIS APPEAL HAS NOW BECOME INFRUCTUOUS AND DOES NOT SURVIVE IN THE EYES OF LAW. HENCE THE SAME IS DISMISSED B EING INFRUCTUOUS. HOWEVER THE ASSESSING OFFICER WILL BE AT LIBERY TO INITIATE PENALTY PROCEEDINGS IF ANY IN SET ASIDE THE ASSESSMENT PROCEEDINGS AS PER LAW. 11. IN THE RESULT THE IT(SS)A NO. 160/DEL/2006 IS ALLOWED FOR STATISTICAL PURPOSES IN THE AF ORESAID MANNER AND IT(SS)A NO. 24/DEL/2010 IS DISMISSED BEING INFRUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT 20 - 11 - 2014. SD/ - SD/ - [ T.S. KAPOOR ] [ H.S. SIDHU ] ACCOUTANT MEMBER JUDICIAL MEMBER DATE 20 / 11 /201 4 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR ITAT TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT DELHI BENCHES IT (SS)A. NO. 160/DEL/2006 & 24/DEL/2010 12