M/s Mukut Finvest and Properties Pvt. Ltd., New Delhi V. ITO, New Delhi

CO 154/DEL/2011

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 7173 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 9 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 27-04-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 26-03-2012
• Assessment Year: 2002-2003
• Appeal Filed On: 18-05-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: US KOCHAR
• Assessee Lawyers: R S NEGI SENIOR
• Keywords: Gift; Additional evidence; Question of law; Accommodation entries; Reason to believe
• Section: 143(3); 142(1); 147; 68; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E DELHI BEFORE SHRI I.P. BANSAL AND SHRI K.G. BANSAL ITA NO. 231(DEL)/2011 ASSESSMENT YEAR: 2002-03 INCOME-TAX OFFICER, MUK UT FINVEST & PROPERTIES PVT. LTD., WARD 5(4), NEW DELHI. VS. 1574/30, NAIWALA, KAROL BAGH, NEW DELHI-110005. PAN: AAACM5516G C.O. NO. 154(DEL)/2011 ( ARISING OUT OF ITA NO. 231(DEL)/2011) ASSESSMENT YEAR: 2002-03 MUKUT FINVEST & PROPERTIES PVT. LTD., INC OME-TAX OFFICER, 1574/30, NAIWALA, KAROL BAGH, VS. WA RD 5(4), NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R.S. NEGI, SENIOR D.R. RESPONDENT BY : SHRI U.S. KOCHAR, ADVOCATE DATE OF HEARIN G : 26.03.2012 DATE OF PRONOU NCEMENT: 27.04.2012. ORDER PER K.G. BANSAL : AM THE ONLY SUBSTANTIVE GROUND TAKEN BY THE REVEN UE IN THIS APPEAL IS THAT THE LD. CIT(APPEALS) ERRED IN DELETING T HE ADDITION OF RS. 14.45 ITA NO. 231(DEL)/2011 & C.O. NO. 154(DEL)/2011 2 LAKH MADE BY THE AO U/S 68 IN RESPECT OF UNEX PLAINED CREDITS. IT IS ALSO MENTIONED THAT THE ASSESSEE DID NOT DISCHARGE THE BURDEN OF PROVING EXISTENCE AND CREDITWORTHINESS OF CREDITORS AND GENUINENESS OF THE TRANSACTION BECAUSE AS A MATTER OF FACT HE IS I NVOLVED IN RECEIVING ACCOMMODATION ENTRIES. 1.1 IN THE CROSS OBJECTION, THE ASSESSEE HAS TAK EN UP FOUR GROUNDS. GROUND NOS. 2 TO 4 ARE IN RESPECT OF VALIDI TY OF NOTICE ISSUED BY THE AO U/S 147 OF THE ACT. IT IS MENTIONED THAT THE AO DID NOT APPLY HIS MIND TO THE INFORMATION RECEIVED FROM THE INVES TIGATION WING. IT IS FURTHER MENTIONED THAT THE AO HAD NO REASON TO B ELIEVE THAT ANY INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT. IT I S ALSO MENTIONED THAT THERE IS NO NEXUS OR LIVE LINK BETWEEN THE INFORMATIO N AND THE FACTUM OF ESCAPEMENT OF INCOME. GROUND NO. 1 IS THAT NO NOTI CE U/S 143(2) HAS BEEN ISSUED AND THAT NOTICE DATED 30.11.2009 IS NOT I N THE NATURE OF A NOTICE U/S 143(2). AS THE CROSS OBJECTION INVOLVES PR ELIMINARY ISSUES, WE DECIDE THE SAME AT THE OUTSET. 2. WE START WITH GROUND NOS. 2, 3 AND 4, WHICH CHALLENGE THE ISSUANCE OF NOTICE U/S 148. THE FACTS MENTIONED IN THE ASSESSMENT ORDER ARE THAT ITA NO. 231(DEL)/2011 & C.O. NO. 154(DEL)/2011 3 THE RETURN DECLARING LOSS OF RS. 12,442/- WAS FI LED ON 29.10.2002. THE SAME WAS PROCESSED U/S 143(1). SUBSEQUENTLY, A REPORT WAS RECEIVED FROM INVESTIGATION DIRECTORATE IN RESPECT OF E NQUIRIES CONDUCTED INTO SOME BANK ACCOUNTS WHICH WERE USED FOR ISSUING CHEQUES TO THE BENEFICIARIES AGAINST CASH PAID BY THEM TO THE ENTRY OPERATORS, I.E., THE PERSONS WHO OPERATED THESE ACCOUNTS. IN THIS CONNE CTION, A SURVEY WAS CONDUCTED IN THE CASE OF M/S GURCHARAN JEWELLERS , PROPRIETOR SHRI ASHOK KUMAR CHAUHAN, WHO ADMITTED TO HAVE TAKEN CHEQ UES UNDER THE GARB OF GIFTS AFTER PAYING CASH. FURTHER ENQUIRIES WE RE CONDUCTED AND A NUMBER OF BANK ACCOUNTS WERE LOCATED WHICH WERE USED FOR GIVING ACCOMMODATION ENTRIES. THESE ACCOUNTS WERE OPER ATED BY PERSONS OF NO MEANS AND WHO WERE MASONS, PLUMBERS, ELECTRICIA NS, PEONS, DRIVERS ETC. THE REAL PERSONS BEHIND THESE ACCOUNTS, THE ENTRY OPERATORS, PAID THEM MONTHLY SUMS OF RS. 1,000/- TO RS. 2,000/-. IN OR DER TO EFFECTUATE ACCOMMODATION ENTRY, BLANK AND SIGNED GIFT DEEDS, CHEQUE BOOKS, SHARE APPLICATION FORMS ETC. WERE OBTAINED FROM THEM. T HEY WERE ALSO MADE DIRECTORS IN THE COMPANIES, PARTNERS IN THE FIRMS AND PROPRIETORS OF A NUMBER OF PROPRIETARY CONCERNS. THE WHOLE SITUATI ON WAS MANAGED BY SHRI MUKESH GUPTA ALONG WITH HIS CONFIDANT, SHRI RANJ AN JASSAL AND SHRI SURINDER PAL SINGH. A MENTION OF 14 BANK ACCOUN TS SO OPERATED HAS ITA NO. 231(DEL)/2011 & C.O. NO. 154(DEL)/2011 4 BEEN MADE ON PAGE NO. 2 OF THE ASSESSMENT ORDER . A LARGE NUMBER OF BENEFICIARIES OF THESE ACCOUNTS HAVE ALSO BEEN MENTIONED ON PAGE NOS. 3 AND 4 OF THE ASSESSMENT ORDER. THE ADDRESSE S USED BY THESE PERSONS HAVE ALSO BEEN MENTIONED ON PAGE NOS. 5 AND 6 OF T HE ASSESSMENT ORDER. COMING TO THE SPECIFICS OF THIS CASE, THE INFOR MATION WAS THAT THE ASSESSEE HAS TAKEN 18 ENTRIES AGGREGATING TO RS . 14.45 LAKH FROM SUCH PERSONS. ACTING ON THIS INFORMATION, REASONS W ERE RECORDED FOR REOPENING ASSESSMENT AND A NOTICE U/S 148 WAS ISSUED. 2.1 THE FINDINGS OF THE LD. CIT(APPEALS) IN THE M ATTER ARE THAT THE AO HAD BEFORE HIM SPECIFIC AND PRECISE INFORMATION IN RESPECT OF ENTRY PROVIDERS, DATES OF ENTRY, AMOUNTS RECEIVED FROM EACH INDIVIDUAL, CHEQUE OR DRAFT NOS. AND NAME AND ADDRESS OF TH E BRANCH. HE MADE A LIMITED VERIFICATION TO ENSURE THAT THE INFORMAT ION WAS RELATED TO THE ASSESSEE. ON THIS BASIS, HE FORMED A PRIMA FA CIE OPINION THAT THE CASE REQUIRED FURTHER INVESTIGATION. IT IS FURTHER M ENTIONED THAT NO SCRUTINY ASSESSMENT HAD BEEN MADE IN THIS CASE ON THE BAS IS OF ORIGINAL RETURN. AFTER CONSIDERING VARIOUS DECISIONS, IT HAS BEEN HELD THAT THE AO WAS JUSTIFIED IN REOPENING THE ASSESSMENT. ITA NO. 231(DEL)/2011 & C.O. NO. 154(DEL)/2011 5 2.2 BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE REFERRED TO THE REASONS RUNNING INTO 12 PAGES. THESE REASONS HAVE B EEN PLACED IN THE PAPER BOOK BETWEEN PAGE NOS. 4 AND 16. UP TO PAGE NO . 13, INFORMATION RECEIVED IN RESPECT OF ENQUIRIES CONDUCTED BY TH E INVESTIGATION WING HAS BEEN NARRATED. ON PAGE NO. 14 THE DETAILS OF V ARIOUS ENTRIES RECEIVED BY THE ASSESSEE IN TERMS OF THE NAME OF THE ENTRY PROVIDER, DATE, ACCOUNT NUMBER OF THE ENTRY PROVIDER, CHEQUE NUMBER, NAM E AND ADDRESS OF THE BANK OF THE ENTRY PROVIDERS AND THE BANK ACCOU NT OF THE ASSESSEE IN WHICH THE AMOUNTS WERE DEPOSITED HAVE BEEN NARRA TED. THESE ENTRIES AGGREGATE TO RS. 14.45 LAKH. IN PARAGRAPH NO. 6, IT IS MENTIONED THAT THE ENQUIRIES REVEAL THAT SHRI ISHWAR SHARMA, SMT. BA BITA, SHRI ROHIT RANA, SHRI SACHIN GUPTA, SHRI PRAMOD KUMAR, SHRI SANJAY SHAR MA, MS. PREETI ARORA, SHRI SUDHIR SACHDEVA, MS. GEETA RAJOURIA, SHRI S URINDER PAL SINGH, SHRI MUKESH GUPTA, MS. PALLAVI NEGI, SHRI RAJESH KUMAR GUPTA, MS. RANI SHARMA AND MS. SARITA GUPTA HAVE GIVEN ENTRIES TO THE ASSESSEE. THE RETURN OF INCOME OF THE ASSESSEE FOR THIS YEAR WAS PERUSED, WHICH SHOWED THAT THE CAPITAL INCREASED FROM RS. 1.80 LAKH TO RS. 16.20 LAKH. IN PARAGRAPH NO. 8, IT IS MENTIONED THAT THESE ENT RIES CANNOT BE VERIFIED FROM THE RETURN OF INCOME. THE INFORMATION IS THAT THESE ENTRIES ARE IN THE NATURE OF ACCOMMODATION ENTRIES. THEREFORE, IT HAS BEEN RECORDED THAT ITA NO. 231(DEL)/2011 & C.O. NO. 154(DEL)/2011 6 THERE IS REASON TO BELIEVE THAT INCOME OF RS. 1 4.45 LAKH HAS ESCAPED ASSESSMENT. 2.3 THE CASE OF THE LD. COUNSEL IS THAT THE AO WA S IN THE KNOWLEDGE OF THE IDENTITY OF THE PERSONS. HOWEVER, HE REL IED ON THE REPORT OF INVESTIGATION DIRECTORATE. THUS, THERE WAS NO APPLICATION OF MIND. 2.4 IN REPLY, THE LD. SENIOR DR SUBMITTED THAT THE AO RECEIVED INFORMATION FROM THE INVESTIGATION WING THAT THE ASSESSEE RECEIVED ACCOMMODATION ENTRIES IN RESPECT OF CAPITAL AMOUNTI NG TO RS. 14.45 LAKH. THUS, THE ASSESSEE PROVIDED ITS OWN MONEY TO T HE ENTRY OPERATORS IN CASH AND OBTAINED CHEQUES OF EQUIVALENT AMOUNT FROM AC COUNTS OF VARIOUS PERSONS WHO WERE USED FOR PROVIDING THESE ENTR IES. THE OFFICERS IN THE DIRECTORATE ARE AUTHORITIES UNDER THE ACT AND, THEREFORE, THEY ARE RESPECTABLE SOURCES OF INFORMATION. THE INFORMAT ION WAS QUITE DETAILED IN TERMS OF ENTRY PROVIDER, BANK ACCOUNT, CHE QUE NUMBER, DATE AND THE ACCOUNT IN WHICH THESE CHEQUES WERE DEPOSITED BY T HE ASSESSEE. THE INFORMATION WAS PRIMA FACIE BELIEVABLE. THE AO COMPARED THE INFORMATION WITH THE ORIGINAL RETURN OF INCOME FI LED BY THE ASSESSEE AND CAME TO THE CONCLUSION THAT ALTHOUGH CAPITAL HAS INCREASED FROM RS. 1.80 ITA NO. 231(DEL)/2011 & C.O. NO. 154(DEL)/2011 7 LAKH TO RS. 16.20 LAKH, THE INFORMATION CANNOT BE TALLIED WITH THE INFORMATION IN THE RETURN AS THE DETAILS DID NOT EXIST IN THE RETURN. THIS IS A CASE WHERE NO ASSESSMENT HAD EARLIER BEEN MADE AND THE RETURN HAD ONLY BEEN PROCESSED. THEREAFTER, IT HAS BEEN REC ORDED BY THE AO THAT INCOME OF RS. 14.45 LAKH HAS ESCAPED ASSESSMENT . THUS, IT IS CASE IN WHICH NOT ONLY RELIABLE INFORMATION WAS RECEIVE D BUT ALSO IN WHICH THE AO APPLIED HIS MIND TO THE INFORMATION AFTER VERI FYING THE SAME WITH THE DETAILS FURNISHED IN THE RETURN AND RECORDED THE REASONS THAT INCOME ESCAPED ASSESSMENT. IN SUCH A CASE, THERE W AS NO NECESSITY FOR HIM TO MAKE DIRECT ENQUIRY WITH THE ENTRY PROVIDER OR THE ASSESSEE BECAUSE THE AO IS NOT REQUIRED TO PROVE HIS CASE TO THE HIL T AT THIS STAGE. WHAT IS REQUIRED IS THAT PRIMA FACIE THERE WAS REASON TO BELIEVE THAT THE INCOME ESCAPED ASSESSMENT. THE INFORMATION HAD A DIRE CT NEXUS WITH THE ISSUE OF ESCAPEMENT OF INCOME. THEREFORE, IT IS ARGUED THAT THE ASSESSMENT WAS VALIDLY REOPENED. 2.5 WE HAVE CONSIDERED THE FACTS OF THE CASE AN D SUBMISSIONS MADE BEFORE US. THE FACTS ARE THAT THE AO RECEIVED INFORMATION ABOUT RECEIPT OF ACCOMMODATION ENTRIES BY THE ASSESSEE AGGREGA TING TO RS. 14.45 LAKH FROM ENTRY PROVIDERS. THE DETAILS OF THE ENTRIES ARE AVAILABLE IN PARAGRAPH ITA NO. 231(DEL)/2011 & C.O. NO. 154(DEL)/2011 8 NO. 5 IN THE RECORDED REASONS. THE INFORMATION HAS BEEN VERIFIED BY THE AO WITH THE RETURN OF INCOME OF THE ASSESSEE AVAILA BLE WITH HIM FOR THIS YEAR. THE RETURN SHOWS THAT THE PAID UP CAPITAL HAS INCREASED FROM RS. 1.80 LAKH TO RS. 16.20 LAKH. HOWEVER, DETAILS OF THE SUBSCRIBERS ARE NOT AVAILABLE. THEREFORE, IT WAS RECORDED THAT IN THE LIGHT OF ENQUIRIES CONDUCTED BY INVESTIGATION WING, HE HAS REASO N TO BELIEVE THAT INCOME OF RS. 14.45 LAKH HAS ESCAPED ASSESSMENT FOR THI S YEAR. THEREAFTER, APPROVAL HAS ALSO BEEN TAKEN FROM THE ADDITION AL COMMISSIONER OF INCOME-TAX. THE QUESTION IS WHETHER NOTICE ISSUE D IN PURSUANCE TO THESE REASONS IS VALID OR NOT? 2.6 IN THE CASE OF NARNUDIA FINANCIAL SERVICES PVT. LTD. IN ITA NO. 4094(DEL)/2009 FOR ASSESSMENT YEAR 2001-02 DATE D 20.04.2011, RELIED UPON BY THE LD. COUNSEL, THE CROSS OBJECTION OF T HE ASSESSEE WAS ALLOWED. THE FACTS OF THIS CASE ARE THAT ORIGINAL ASSES SMENT HAD BEEN FRAMED U/S 143(3). SUBSEQUENTLY, INFORMATION WAS RECEIVED FROM THE INVESTIGATION WING THAT THE ASSESSEE IS A BENEFICIARY OF AC COMMODATION ENTRY. THE TRIBUNAL FOUND THAT THE ASSESSEE HAD DISCLOSED A LL PARTICULARS REGARDING SHARE MONEY AT THE TIME OF ORIGINAL ASSESSMENT . THE AO HAD ALSO OBTAINED CONFIRMATION FROM THE INVESTORS. THE RE OPENING WAS DONE ITA NO. 231(DEL)/2011 & C.O. NO. 154(DEL)/2011 9 MERELY ON THE BASIS OF INFORMATION RECEIVED FROM INVESTIGATION WING. IT WAS HELD THAT THE CASE IS COVERED BY THE DECISIO N OF JURISDICTIONAL HIGH COURT IN THE CASE OF SARTHAK SECURITIES COMPANY ( P) LTD. VS. ITO (2010) 329 ITR 110 (DEL). THE FACTS OF THIS CASE AR E DISTINGUISHABLE FOR THE REASON THAT THE AO HAD VERIFIED THE DETAILS OF CAPITAL CONTRIBUTION IN THE COURSE OF ORIGINAL ASSESSMENT MADE U/S 143(3) B Y OBTAINING CONFIRMATION LETTER. IN THE INSTANT CASE, THE NAME AND ADDRE SS OF THE CONTRIBUTORS WERE NOT AVAILABLE IN THE RETURN AND NO ASSESSMENT HA D BEEN EARLIER MADE U/S 143(3). 2.7 IN THE CASE OF SARTHAK SECURITIES COMPANY (P ) LTD. (SUPRA), THE FACTS ARE THAT THE RETURN WAS FILED DECLARING TOTAL INCOME OF RS. 15,360/-. THE RETURN WAS PROCESSED U/S 143(1). IN THIS YEAR FOUR PRIVATE LIMITED COMPANIES HAD INVESTED IN THE SHARES OF THE ASSE SSEE COMPANY. AFTER OBSERVING ALL LEGAL FORMALITIES, SHARES WERE ALLOTTED TO THESE COMPANIES. THEREAFTER, A NOTICE U/S 148 WAS ISSUED ON 25.03 .2010. IT WAS INFORMED THAT THE EARLIER RETURN MAY BE TAKEN AS RETURN U/S 148. THE ASSESSEE REQUESTED THAT THE REASONS RECORDED FOR ISSUING NOTICE U/S 148 MAY BE SUPPLIED TO IT. THIS WAS DONE. THE ASSESSEE R AISED OBJECTION TO THE INITIATION OF PROCEEDINGS. THESE OBJECTIONS WERE REJECTED. THE CASE OF THE ITA NO. 231(DEL)/2011 & C.O. NO. 154(DEL)/2011 10 LD. COUNSEL BEFORE THE HONBLE COURT WAS THAT THE ORDER OF THE AO DOES NOT REFLECT ANY INDEPENDENT APPLICATION OF MIND TO THE INFORMATION SO RECEIVED AND THAT HE HAD NOT TAKEN INTO ACCOUNT THE DECISION IN THE CASE OF CIT VS. LOVELY EXPORTS (P) LTD. (2009) 216 CTR 195 (S.C.). THE HONBLE COURT CAME TO THE CONCLUSION THAT ALTHOUGH THE AO WAS MADE AWARE OF THE SITUATION BY THE INVESTIGATION WING , THERE IS NO MENTION BY HIM THAT THESE COMPANIES ARE FICTITIOUS. IT IS TRUE THAT AT THIS STAGE IT IS NOT NECESSARY TO ESTABLISH THE ESCAPEMENT OF INC OME BUT WHAT IS NECESSARY IS THAT THERE IS RELEVANT MATERIAL O N WHICH A REASONABLE PERSON WOULD HAVE FORMED REQUISITE BELIEF. THE DECIS ION IN THE CASE OF LOVELY EXPORTS (P) LTD. (SUPRA) IS APPLICABLE AND IN A BSENCE OF FINDING ABOUT FICTITIOUS NATURE OF COMPANIES, CONCLUSION OF E SCAPEMENT OF INCOME COULD NOT HAVE BEEN DRAWN. THE FACTS OF THIS CASE ARE ALSO DISTINGUISHABLE. IN THIS CASE, FOUR LIMITED COM PANIES WERE THE CONTRIBUTORS, WHOSE IDENTITY WAS NOT DOUBTED. T HE INFORMATION WAS THAT THEY WERE MERELY CONDUITS. AS AGAINST THIS, IN THE INSTANT CASE, CONTRIBUTORS ARE INDIVIDUALS WORKING AT THE COM MAND OF THE MAIN ENTRY OPERATOR. THE AO HAD APPLIED MIND TO THE INFORMA TION BY COMPARING IT WITH THE INFORMATION AVAILABLE IN THE RETURN OF IN COME. EXTENSIVE ENQUIRIES BY THE INVESTIGATION WING LED THEM TO CERTAIN C ONCLUSION WHICH IF PERUSED ITA NO. 231(DEL)/2011 & C.O. NO. 154(DEL)/2011 11 BY A PERSON OF ORDINARY PRUDENCE WOULD LEAD TO A CONCLUSION THAT CERTAINLY THERE WAS SOMETHING AMISS. THE INFOR MATION HAD A DIRECT BEARING ON ASSESSMENT OF THE INCOME. THEREFORE, IT CANNOT BE SAID ON THE BASIS OF THIS DECISION THAT THE AO DID NOT APPLY HIS MIND TO THE INFORMATION OR THAT HE WAS OBLIGED TO MAKE ANY INDEPENDENT EN QUIRY. 2.8 IN THE CASE OF CHHUGAMAL RAJPAL VS. S.P. CHA LIHA & OTHERS (1971) 79 ITR 603 (SC), THE FACTS ARE THAT ON THE BA SIS OF INFORMATION RECEIVED FROM THE COMMISSIONER THAT LOAN TRANSACTIONS R EQUIRED INVESTIGATION, REASONS WERE RECORDED AND THE ASSESSMENT WAS R EOPENED. THE HONBLE COURT FOUND THAT THE AFFIDAVIT FILED BY THE ITO WAS VAGUE AND INDEFINITE, THEREFORE, THE RECORDS WERE DIRECTED TO BE PRODU CED. HOWEVER, ONLY A REPORT SUBMITTED BY THE ITO TO THE COMMISSIONER WAS PRODUCED. THE REASONS RECORDED U/S 148(2) WERE NOT PRODUCED. THE FACTS OF THIS CASE ARE ALSO DISTINGUISHABLE BECAUSE DETAILED REAS ONS RECORDED BY THE AO ARE THERE ON RECORD, TO WHICH WE HAVE ALREADY REFERRED TO. IN THE CASE OF ITO VS. LAKHMANI MEWALDAS (1976) 103 ITR 437 (S C), THE DECISION WAS RENDERED U/S 23(3) OF THE OLD ACT CORRESPONDING TO SECTION 147(A) OF THE ACT. THUS, THE QUESTION WHETHER ALL MATERIAL FA CTS HAD BEEN DISCLOSED OR NOT HAD TO BE DECIDED. IN THE INSTANT CASE, THE RE IS NO REQUIREMENT AS THE ITA NO. 231(DEL)/2011 & C.O. NO. 154(DEL)/2011 12 ASSESSMENT U/S 143(3) HAD NOT BEEN MADE EARLIER. NONETHELESS, IT MAY BE MENTIONED THAT THE INFORMATION WAS NOT VAGUE, INDE FINITE, DISTANT, REMOTE OR FAR FETCHED. IT WAS A DEFINITE INFORMATION WH ICH HAD A DIRECT BEARING ON ESCAPEMENT OF INCOME. IN THE CASE OF ITO VS. DWA RKA DASS & BROTHERS ALSO (1981) 131 ITR 571 (DEL), THE QUESTION WAS REGARDING FAILURE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS IN TH E COURSE OF ORIGINAL ASSESSMENT. THUS, THE RATIO OF THESE DECISIONS I S NOT APPLICABLE. 2.9 ON THE OTHER HAND, THE DECISION OF THE JURISD ICTIONAL HIGH COURT IN THE CASE OF CIT VS. NOVA PROMOTERS & FINLEASE (P ) LTD. IN ITA NO. 342 OF 2011 DATED 15.02.2012, RELIED UPON BY THE L D. SR. D.R., SUPPORTS THE CASE OF THE REVENUE. IN THIS CASE, THE RETURN F OR ASSESSMENT YEAR 2000-01 WAS ONLY PROCESSED AND NO ASSESSMENT WAS MADE. THEREAFTER, PROCEEDINGS U/S 147 WERE INITIATED ON THE BASIS OF INFORMATIO N RECEIVED FROM DIRECTORATE OF INVESTIGATION TO THE EFFECT THAT TH E ASSESSEE WAS ONE OF THE BENEFICIARIES OF ACCOMMODATION ENTRIES GIVEN BY 1 6 ENTRY OPERATORS THROUGH WHICH IT RECEIVED SHARE APPLICATION MONIES OF R S. 1,18,50,000/-. THE HONBLE COURT UPHELD THE ACTION OF ISSUANCE OF NOTICE U/S 148. THE ENTRY OPERATORS IN THAT AND THIS CASES ARE THE SAME P ERSONS. ITA NO. 231(DEL)/2011 & C.O. NO. 154(DEL)/2011 13 2.10 COMING TO THE DECISION IN THE CASE OF THE A SSESSEE, IT IS CLEAR THAT A PRECISE AND DEFINITE INFORMATION WAS RECEIVED B Y THE AO REGARDING RECEIPT OF ACCOMMODATION ENTRIES IN RESPECT OF CAPI TAL FROM VARIOUS PERSONS AGGREGATING TO RS. 14.45 LAKH. HE COMPARED THE IN FORMATION WITH THE INFORMATION AVAILABLE IN THE RETURN OF THE ASSES SEE. AS THE INFORMATION COULD NOT BE MATCHED, HE RECORDED DEFINITE REAS ONS IN CLEAR TERMS THAT INCOME ESCAPED ASSESSMENT. THE CASE OF THE LD. COUNSEL IS THAT THE DECISION IN THE CASE OF NOVA PROMOTERS AND FINLE ASE (P) LTD. (SUPRA) IS PER CURIUM BECAUSE THE DECISION IN THE CASE OF SARTHAK SECURITIES CO. (P) LTD.(SUPRA) HAS NOT BEEN CONSIDERED. WE DO NOT WA NT TO VENTURE INTO THIS CONTROVERSY. IT IS ALSO NOT NECESSARY FOR US TO D O SO AT PRESENT BECAUSE WE HAVE GIVEN A CLEAR FINDING THAT A DEFINITE A ND RELIABLE INFORMATION WAS RECEIVED TO WHICH THE AO APPLIED HIS MIND AND H E CAME TO THE CONCLUSION THAT INCOME HAD ESCAPED ASSESSMENT. THEREFORE, WE ARE IN AGREEMENT WITH THE LD. SENIOR DR THAT THE AO RIGHTLY REOPE NED THE ASSESSMENT BY ADHERING TO THE RELEVANT PROVISION AND FOLLOWING THE RIGHT PROCEDURE PROVIDED UNDER THE RULE. 2.11 THUS, GROUND NOS. 2, 3 AND 4 OF THE CROSS O BJECTION ARE DISMISSED. ITA NO. 231(DEL)/2011 & C.O. NO. 154(DEL)/2011 14 3. NOW WE TAKE UP GROUND NO. 1 THAT NO NOTICE HAD BEEN ISSUED TO THE ASSESSEE U/S 143(2). IN THIS CONNECTION, THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE NOTICE U/S 143(2) ISSUE D BY THE AO, THE OPERATIVE PORTION OF WHICH READS AS UNDER:- SUB:- NOTICE U/S 143(2) FOR ASSTT. YEAR 2 002-03-REG- PLEASE REFER TO YOUR LETTER DATED 30.11.2009 IN R ESPECT OF THE ABOVE SUBJECT. YOU ARE HEREBY INTIMATED THAT A NOTICE U/S 148 WAS ISSUED BY THIS OFFICE ON 27.03.2009 FOR THE ASSE SSMENT YEAR 2002-03 AND IN RESPONSE TO THE SAME VIDE YOUR L ETTER DATED 30.11.2009, YOU HAVE SUBMITTED THAT THE RETURN F ILED BY YOU ON 20.10.2002 MAY BE TREATED AS RETURN FILED IN R ESPONSE TO THE NOTICE U/S 148. THIS NOTICE U/S 143(2) DATED 30.11.2009 IS IN CONTINUATION TO THE ASSESSMENT PROCEEDINGS INITIA TED U/S 148 FOR THE SAID YEAR UNDER REFERENCE. SINCE THIS NOT ICE HAS BEEN ISSUED IN PURSUANCE TO THE NOTICE U/S 148 DATED 2 7.3.2009 AND WITH REFERENCE TO YOUR LETTER DATED 30.11.2009, HENCE THE NOTICE U/S 143(2) ISSUED TO YOU IS WITHIN THE STI PULATED TIME LIMIT FOR ASSESSMENT PROCEEDINGS OF YOUR CASE FO R THE A.Y. 2002-03 AND HENCE IS VALID. A NOTICE U/S 142(1) ALONG WITH A QUESTIONNAIRE ON WHICH YOU ARE REQUIRED TO FILE DETAILS IS ALSO EN CLOSED HEREWITH. IN THIS REGARD YOU ARE HEREBY REQUE STED TO ATTEND THE PROCEEDINGS BEFORE ME EITHER DIRECTLY OR THRO UGH AUTHORIZED REPRESENTATIVELY DULY AUTHORIZED IN WR ITING ON 09.12.2009. ITA NO. 231(DEL)/2011 & C.O. NO. 154(DEL)/2011 15 3.1 IT IS SUBMITTED THAT A NOTICE U/S 143(2) HA S TO CONFORM TO THE STATUTORY LANGUAGE WHICH MEANS THAT THE ASSESSE E HAS TO BE CALLED UPON TO PRODUCE OR CAUSED TO BE PRODUCED ANY EVIDENCE ON WHICH THE ASSESSEE MAY RELY IN SUPPORT OF THE RETURN, ON THE DAT E SPECIFIED THEREIN. THE OBJECTION OF THE LD. COUNSEL IS THAT HE HAS NOT BE EN GIVEN AN OPPORTUNITY TO PRODUCE OR CAUSED TO BE PRODUCED EVIDENCE IN SUPP ORT OF THE RETURN. 3.2 IN REPLY, THE LD. SENIOR DR SUBMITTED THAT SUCH A GROUND HAD NOT BEEN TAKEN UP BY THE ASSESSEE BEFORE THE LD. CIT (APPEALS). THE ASSESSEE HAS ALSO NOT OBJECTED TO THE NOTICE IN THE COURSE OF ASSESSMENT PROCEEDINGS. THE INSTANT NOTICE IS ISSUED U/S 143(2) AS SEE N FROM THE SUBJECT MENTIONED THEREIN. THE READING OF THE NOTICE SHOWS THAT T WO NOTICES WERE ISSUED ON 30.11.2009, ONE U/S 143(2) AND THE OTHER U/S 14 2(1). THE ASSESSEE HAS COMPLIED WITH THESE NOTICES. NO PREJUDICE HAS BEE N CAUSED TO IT. ANY DEFECT IN THE NOTICE IS CURED U/S 292B OR 292BB O F THE ACT. THEREFORE, A VALID NOTICE HAS BEEN SERVED ON THE ASSESSEE. 3.3 IN THE REJOINDER REPLY, THE LD. COUNSEL SUBM ITTED THAT PROVISION CONTAINED IN SECTION 292B DEALS WITH CURING D EFECTS BUT IT CANNOT GET OVER THE JURISDICTIONAL ISSUE AS ASSESSMENT U/S 143(3) OR 144 CANNOT BE ITA NO. 231(DEL)/2011 & C.O. NO. 154(DEL)/2011 16 MADE WITHOUT ISSUING A VALID NOTICE. SECTION 292 BB PRE-SUPPOSES THAT A NOTICE HAS BEEN SERVED, WHICH MEANS THAT A VAL ID NOTICE HAS BEEN SERVED AND IN SUCH A SITUATION IF THE ASSESSEE HAS PARTI CIPATED IN THE PROCEEDINGS, THEN OBJECTION TO SERVICE, TIME WITHIN WHICH NOT ICE WAS ISSUED, OR MANNER OF SERVICE CANNOT BE CHALLENGED BY HIM. 3.4 WE HAVE CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE US. IN THE CASE OF ITO VS. SMT. SUKHINI P. MODI (2008) 112 ITD 1, RELIED UPON BY THE LD. COUNSEL, IT HAS BEEN HE LD THAT ONCE A NOTICE U/S 148 HAS BEEN ISSUED AND A RETURN HAS BEEN FILED I N RESPONSE THERETO, THE AO HAS TO ISSUE NOTICE U/S 143(2) GIVING HIM AN OPPORTUNITY TO PRODUCE OR CAUSED TO BE PRODUCED THE EVIDENCE AND MATERI AL TO SUPPORT THE INCOME SHOWN IN THE RETURN. SUCH A NOTICE CANNOT BE W AIVED AND AN ACQUIESCENCE BY PARTICIPATING IN THE PROCEEDINGS CANNOT B E ACCEPTED AS SUCH PARTICIPATION WAS TO COMPLY WITH REQUIREMENT OF SE CTION 142(1). FURTHER, RELIANCE HAS BEEN PLACED ON THE DECISION IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. VS. CIT (1998) 229 ITR 383 (S.C.) , IN WHICH IT IS MENTIONED THAT THE VIEW THAT TRIBUNAL IS CONFIN ED ONLY TO ISSUES ARISING OUT OF THE APPEAL BEFORE THE CIT(APPEALS) TAKES TOO NARROW A VIEW OF THE POWERS OF THE APPELLATE TRIBUNAL. UNDOUBTEDLY, THE TRIBUNAL WILL HAVE ITA NO. 231(DEL)/2011 & C.O. NO. 154(DEL)/2011 17 DISCRETION TO ALLOW OR NOT TO ALLOW A NEW GROUN D TO BE RAISED. BUT WHERE THE TRIBUNAL IS ONLY REQUIRED TO CONSIDER A QUES TION OF LAW ARISING FROM THE FACTS WHICH ARE ON RECORD IN THE ASSESSMENT PROCEEDINGS, THE COURT FAILS TO SEE WHY SUCH A QUESTION SHOULD NOT BE ALLOWED TO BE RAISED WHEN IT IS NECESSARY TO CONSIDER THAT QUESTION IN ORDER TO CORRECTLY ASSESS THE TAX LIABILITY OF THE ASSESSEE. ON THE BASIS OF THIS DECISION, IT IS ARGUED THAT THE QUESTION WHETHER A NOTICE IS A NOTICE U/ S 143(2) IS A QUESTION OF LAW AND IT SHOULD BE ENTERTAINED. WE AGREE WIT H THE LD. COUNSEL IN THIS MATTER. FURTHER, THE DECISION OF ALLAHABAD HI GH COURT REPORTED AT 5 ITR 631, THE INGREDIENTS OF A NOTICE U/S 143(2) HAVE BEEN MENTIONED, WHICH ALSO FIND A PLACE IN THE STATUTORY LANGUAG E. FOR THE SAKE OF READY REFERENCE, THE STATUTORY PROVISION IS REPRODUCED BELOW:- NOTWITHSTANDING ANYTHING CONTAINED IN CLAUSE (I ), IF HE CONSIDERS IT NECESSARY OR EXPEDIENT TO ENSURE TH AT THE ASSESSEE HAS NOT UNDER-STATED THE INCOME OR HAS NOT COMPU TED EXCESSIVE LOSS OR HAS NOT UNDER-PAID THE TAX IN ANY MANNER, SERVE ON THE ASSESSEE A NOTICE REQUIRING HIM, ON A DATE TO BE SPECIFIED THEREIN, EITHER TO ATTEND HIS OFFICE OR TO PRODUCE, OR CAUSE TO BE PRODUCED, ANY EVIDENCE ON WHICH THE ASSESSEE MAY RELY IN SUPPORT OF THE RETURN: 3.5 WE MAY NOW EXAMINE THE NOTICE IN THE LIGHT OF THE STATUTORY PROVISIONS IN THE LIGHT OF AFORESAID DECISIONS. IT IS OBVIOUS THAT THE MAIN ITA NO. 231(DEL)/2011 & C.O. NO. 154(DEL)/2011 18 HEADING OF THE NOTICE IS NOTICE U/S 143(2) FOR ASSESSMENT YEAR 2002-03. THEREFORE, THE INTENT AND PURPOSE IS TO ISSUE A NOTICE U/S 143(2). A NOTICE U/S 142(1) HAS BEEN APPENDED TO THIS NOTI CE CALLING FOR CERTAIN DETAILS AS PER ENCLOSED QUESTIONNAIRE. THEREAFTE R, IT IS MENTIONED THAT THE ASSESSEE IS REQUESTED TO ATTEND THE PROCEEDINGS BEFORE HIM EITHER DIRECTLY OR THROUGH AUTHORIZED REPRESENTATIVE DULY AUTHORI ZED IN WRITING ON 09.12.2009. FROM THIS, IT IS CLEAR THAT THE A SSESSEE COULD EITHER ATTEND PERSONALLY OR THROUGH AUTHORIZED REPRESENTATIVE. T HEREFORE, THE CONDITION OF PRODUCING EVIDENCE OR CAUSING THE EVIDENCE T O BE PRODUCED IS ALSO SATISFIED. THE ONLY MISSING WORDS ARE ANY EVI DENCE ON WHICH THE ASSESSEE MAY RELY IN SUPPORT OF THE RETURN. ABS ENCE OF THESE WORDS MAY LEAD TO PRIMA FACIE VIEW THAT THE NOTICE DOES NOT CONFORM TO THE STATUTORY LANGUAGE. HOWEVER, SECTION 292B PROV IDES THAT NO NOTICE ETC. ISSUED OR PURPORTED TO HAVE BEEN ISSUED IN PURS UANCE OF ANY OF THE PROVISIONS OF THE ACT SHALL BE INVALID OR SHALL BE DEEMED TO BE INVALID MERELY BY REASON OF ANY MISTAKE, DEFECT OR OM ISSION IN THE NOTICE PROVIDED THAT SUCH NOTICE IS IN SUBSTANCE AND EFFECT IN CONFORMITY WITH OR ACCORDING TO THE INTENT AND PURPOSE OF THIS AC T. THERE CAN BE NO DOUBT THAT THE NOTICE HAS BEEN ISSUED FOR THE PURPOSE O F THE ACT AND ITS INTENTION IS TO GIVE AN OPPORTUNITY TO THE ASSESSEE TO SUB STANTIATE HIS RETURN BY ITA NO. 231(DEL)/2011 & C.O. NO. 154(DEL)/2011 19 PRODUCING EVIDENCE AS REQUIRED U/S 143(2). THE S UBJECT MATTER OF THE NOTICE IS SECTION 143(2). THE ASSESSEE HAS COMPLIED W ITH THIS NOTICE. MERE COMPLIANCE TO THE NOTICE MAY NOT VALIDATE A NOTICE WHICH IS TOTALLY ILLEGAL. BUT WHERE THERE IS ONLY AN IRREGULARITY IN THE N OTICE WHICH IS OTHERWISE IN SUBSTANCE IN CONFORMITY WITH THE INTENT AND PURPOSE OF THE ACT, THE NOTICE CANNOT BE DEEMED TO BE INVALID IN THE FIRST PLAC E. OTHERWISE ALSO, THE ASSESSEE IS REGULARLY ASSESSED TO TAX. IT IS AWA RE OF VARIOUS NOTICES ISSUED UNDER THE ACT. THE SECTION UNDER WHICH NOTICE IS ISSUED IS MENTIONED BOTH IN THE SUBJECT MATTER AND IN THE CONTENT OF THE LETTER. THEREFORE, MINOR OMISSION OF SOME WORDS, AS MENTIONED ABOVE , DOES NOT INVALIDATE THE NOTICE BECAUSE OF SECTION 292B, WHICH HAS N OT BEEN TAKEN INTO ACCOUNT IN CASES RELIED UPON BY THE LD. COUNSEL FOR THE ASSESSEE. ACCORDINGLY, IT IS HELD THAT THE NOTICE IS A VA LID NOTICE. THUS, GROUND NO. 1 IS DISMISSED. 4. NOW WE PROCEED WITH THE APPEAL OF THE REVENUE . AS MENTIONED EARLIER, ITS GRIEVANCE IS ONLY IN RESPECT OF DE LETING THE ADDITION OF RS. 14.45 LAKH MADE BY THE AO U/S 68. 4.1 IT IS MENTIONED THAT THE BANK ACCOUNTS OF ALL T HE INVESTORS WERE OBTAINED IN THE COURSE OF ASSESSMENT PROCEEDINGS. THESE ACCOUNTS SHOW THAT THERE ARE CONTRA ENTRY OF AMOUNT RECEIVED A ND GIVEN EITHER ON THE ITA NO. 231(DEL)/2011 & C.O. NO. 154(DEL)/2011 20 SAME DAY OR ON THE SUBSEQUENT DAY. ALL THE ACC OUNTS HAD MINIMUM CREDIT BALANCE IN THOUSANDS AT THE BEGINNING AN D AT THE END OF THE YEAR. THIS DISPROVES THE THEORY THAT ALL THESE INVEST ORS WERE CARRYING ON INDEPENDENT BUSINESSES. THE ASSESSEE FILED COP IES OF CONFIRMATION FROM THE INVESTORS, SHARE APPLICATION FORM AND PAN. IT IS FURTHER MENTIONED THAT THE FACE VALUE OF THE SHARE WAS RS. 10/- BU T IT HAS BEEN ISSUED AT A PREMIUM OF RS.90/- PER SHARE. THE PROFIT AND LOSS ACCOUNT SHOWS PROFIT OF RS. 2.52 LAKH ON ACCOUNT OF SALE OF SHARES AND PROFIT OF RS. 2.21 LAKH ON ACCOUNT OF INTEREST. THIS STATE OF AFFAIRS D OES NOT JUSTIFY THE PREMIUM OF RS. 90/-. IT IS ALSO MENTIONED THAT THE RETURNS OF THE SHAREHOLDERS SHOW INCOME BETWEEN RS. 1.00 LAKH AND RS. 3.00 LAKH. THEREAFTER, HE HAS REFERRED TO STATEMENTS OF MUKESH GUPTA, RAJAN J ASSAL, MANJU GUPTA AND SURENDER PAL SINGH RECORDED BY THE OFFICERS OF INVESTIGATION WING ON 11.04.2005, 04.02.2004, 15.04.2004 AND 24.12.2003 RESPECTIVELY. SHRI MUKESH GUPTA HAS ALSO FILED A SWORN AFFIDAVIT D ATED 12.04.2005. ALL THESE DEPOSITIONS SHOW THAT ALL THESE ACCOUNTS H AVE BEEN USED FOR PROVIDING ONLY ACCOMMODATION ENTRIES BY DEPOSITIN G CASH OBTAINED FROM THE BENEFICIARY, ROTATING IN DIFFERENT ACCOUNTS AN D THEREAFTER ISSUING CHEQUE OR DRAFT OF EQUIVALENT AMOUNT FOR CONSIDERATION OF SOME COMMISSION. IN THE LIGHT OF THESE DEPOSITIONS, IT HAS BEEN HELD THAT THE EVIDENCE FILED BY ITA NO. 231(DEL)/2011 & C.O. NO. 154(DEL)/2011 21 THE ASSESSEE DOES NOT SATISFACTORILY EXPLAIN T HE CREDITS AS REQUIRED U/S 68. THEREFORE, A SUM OF RS. 14.45 LAKH HAS BEEN ADDED TO THE INCOME RETURNED BY THE ASSESSEE. 4.2 BEFORE THE LD. CIT(APPEALS), THE ASSESSEE FILED ADDITIONAL EVIDENCE BY WAY OF AFFIDAVITS OF THE SHARE APPLICANTS. TH IS WAS OBJECTED TO BY THE AO. THE LD. CIT(APPEALS) ADMITTED THE ADDITIONAL EVIDENCE BY MENTIONING THAT THE EVIDENCE MERELY SUPPLEMENTS THE STAND OF THE ASSESSEE AND IT DOES NOT STATE ANYTHING FURTHER THAN WHAT HAD BEEN STATED BEFORE THE AO. COMING TO THE MERITS, IT HAS BEEN MENTIONED THAT T HE ASSESSEE HAS PROVIDED COPIES OF CONFIRMATION LETTER, SHARE APPLICATION FO RM, INCOME-TAX RETURN, PAN AND BANK ACCOUNT. AS AGAINST THE AFORESAID, THE AO HAS RELIED UPON CERTAIN STATEMENTS RECORDED BY THE OFFICERS OF THE INVESTIGATION WING. AFTER RELYING ON CERTAIN CASE LAW, IT HAS BEE N HELD THAT THE AO HAS NOT REALLY MADE OUT A CASE OF TAXING THE SHARE APP LICATION MONEY RECEIVED THROUGH BANKING CHANNELS FROM THE PERSONS REGULARL Y ASSESSED TO TAX. THUS, THE ADDITION HAS BEEN DELETED. 4.3 BEFORE US, THE LD. SENIOR DR DREW OUR ATTENT ION TOWARDS THE FINDING IN THE ASSESSMENT ORDER IN PARAGRAPH NOS. 2 TO 5. THESE DEAL WITH THE ITA NO. 231(DEL)/2011 & C.O. NO. 154(DEL)/2011 22 INFORMATION RECEIVED, CERTAIN PERSONS USING A LARGE NUMBER OF BANK ACCOUNTS FOR FURNISHING ACCOMMODATION ENTRIES T HROUGH BANK ACCOUNTS HELD BY PERSONS OF NO MEANS, THE DETAILS IN RES PECT OF WHICH HAVE BEEN NARRATED AT LENGTH. THEREAFTER, HE REFERRED TO THE AMOUNTS ALLEGEDLY RECEIVED BY THE ASSESSEE FROM A NUMBER OF PERS ONS THROUGH CHEQUE OR DRAFT DRAWN ON THE SAME BANK, I.E., KARUR VY SYA BANK, DELHI, AND DEPOSITED BY THE ASSESSEE IN HIS BANK ACCOUNT WIT H FEDERAL BANK, KAROL BAGH, DELHI. FINALLY, HE REFERRED TO THE CONCLUSIO NS DRAWN BY THE AO, WHICH HAVE ALREADY BEEN SUMMARIZED BY US. IT IS HIS CASE THAT THE ENTRIES HAVE BEEN RECEIVED FROM PERSONS OF PETTY MEANS WH O HAVE BEEN USED BY ENTRY OPERATORS. THE STATE OF AFFAIRS SHOWN IN T HE ACCOUNTS OF THE ASSESSEE ALSO DO NOT JUSTIFY PREMIUM OF RS. 90/- PER SHARE . THEREAFTER, HE REFERRED TO THE FINDING OF THE LD. CIT(APPEALS) THAT VARIO US EVIDENCES HAVE BEEN FILED BY THE ASSESSEE BEFORE THE AO AND THAT THE ASSESSEE IS MERELY REQUIRED TO ESTABLISH THE IDENTITY OF THE CONTRIBU TORS. IT HAS ALSO BEEN MENTIONED BY HIM THAT THE INCRIMINATING MATERIAL GATHERED BY THE AO HAS NOT BEEN BROUGHT TO THE NOTICE OF THE ASSESSEE AND IT HAS NOT BEEN ALLOWED TO CROSS-EXAMINE THE DEPONENTS. THE CASE OF THE LD . SENIOR DR IS THAT THE ASSESSEE NEVER ASKED FOR CROSS-EXAMINATION OF THES E PERSONS. THE ITA NO. 231(DEL)/2011 & C.O. NO. 154(DEL)/2011 23 ACCEPTANCE OF THE CASE OF THE ASSESSEE WOULD AMO UNT TO ACCEPTING A LARGE NUMBER OF COINCIDENCES BORDERING ON IMPOSSIBILIT Y. 4.4 IN REPLY, IT IS SUBMITTED THAT THE EVIDENCE F ILED BY THE ASSESSEE BEFORE THE AO HAS NOT BEEN IMPEACHED. THUS, IT IS A CASE WHERE DOCUMENTARY EVIDENCES FILED BY THE CONTRIBUTORS HAVE TO BE WE IGHED AGAINST THE ORAL EVIDENCE OF ENTRY OPERATORS. IN SUCH A SITUATIO N, THE DOCUMENTARY EVIDENCE HAS TO BE GIVEN MORE CREDENCE THAN THE ORAL EVIDENCE OF THIRD PARTIES. THE ASSESSEE HAS DISCHARGED ITS INITIA L ONUS BY PRODUCING RELEVANT EVIDENCE AND, THEREFORE, THE LD. CIT(APPEALS) WAS RIGHT IN DELETING THE ADDITION AS NO FURTHER ADVERSE EVIDENCE WAS BRO UGHT ON RECORD. 4.5 IN THE REJOINDER REPLY, THE LD. SENIOR DR R EFERRED TO THE DECISION IN THE CASE OF NOVA PROMOTERS & FINLEASE (P) LTD. (S UPRA), WHICH ALSO DEALS WITH A CASE IN WHICH ENTRY PROVIDERS WERE MUKE SH GUPTA AND RANJAN JASSAL. IT IS HIS CASE THAT ALL THE DECISION S CITED BY THE LD. COUNSEL STAND COVERED BY THIS DECISION, IN WHICH IT HAS BEEN HELD THAT THE TRIBUNAL WAS NOT RIGHT IN DELETING THE ADDITION OF RS. 1,18, 50,000/- MADE BY THE AO U/S 68. ITA NO. 231(DEL)/2011 & C.O. NO. 154(DEL)/2011 24 4.6 WE HAVE CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE US. WE FIND THAT THE DECISION IN THE CASE OF NOVA PROMOTERS & FINLEASE (P) LTD. IS LATER IN TIME TO THE DECIS IONS RELIED UPON BY THE LD. COUNSEL FOR THE ASSESSEE. THE HONBLE COURT HAS TAKEN INTO ACCOUNT THE CONDUCT OF MUKESH GUPTA AND RANJAN JASSAL AND DIRECTORS OF 12 COMPANIES AND MENTIONED IN PARAGRAPH NO. 30 THAT THEY WERE NOT READY AND WILLING TO APPEAR BEFORE THE AO. THE DECISI ON IN THE CASE OF LOVELY EXPORTS (P) LTD., DIVINE LEASING & FINANCE LTD. AN D GENERAL EXPORTS AND CREDITS LTD. HAVE BEEN DISTINGUISHED. THE HONBLE COURT HAS ALSO CONSIDERED THE DECISION IN THE CASE OF ORISSA C ORPORATION, DOLPHIN CANPACK, MAKHNI & TYAGI (P) LTD., ANTARTICA INVEST MENT (P) LTD. AND ACHAL INVESTMENT LTD. IN PARAGRAPH NO. 39 AND ON WARDS. THE DECISION IN THE CASE OF OMEGA (P) LTD. AND HI TECH AGRO (P) LTD. ARE SIMILAR TO THE CASES CONSIDERED BY THE HONBLE COURT IN CONTENT. THEREFORE, THIS LATEST DECISION COVERS PLETHORA OF CASES ON THE SUBJECT. IT DOES APPEAR TO US THAT THIS CASE MAKES A DISTINCTION BETWEEN CREDITS SIMPLICITOR AND CREDITS RECEIVED THROUGH HAWALA OPERATORS, THE BANK ACC OUNTS OF WHICH ARE SPURIOUS IN THE SENSE THAT MOST OF THE ENTRIES ARE IN RESPECT OF DEBITS AND CREDITS OF THE SAME AMOUNT WITH VERY LITTLE BALA NCE STAYING IN THE ACCOUNT AT ANY OTHER POINT OF TIME. WE ARE UNA BLE TO ACCEPT THE ITA NO. 231(DEL)/2011 & C.O. NO. 154(DEL)/2011 25 SUBMISSION THAT THE DECISION IS PER-CURIUM. RELY ING ON THIS DECISION, IT IS HELD THAT THE LD. CIT(APPEALS) ERRED IN DELET ING THE ADDITION. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED AND THE CROSS OBJECTION OF THE ASSESSEE IS DISMISSED. SD/- SD/- (I.P.BANSAL) (K.G.BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER SPSATIA COPY OF THE ORDER FORWARDED TO:- THE ASSESSEE-M/S MUKUT FINVEST & PROPERTIES PVT. LTD., NEW DELHI. INCOME-TAX OFFICER, WARD 5(4), NEW DELHI. CIT(APPEALS) CIT THE DR, ITAT, NEW DELHI. ASSISTANT REGISTRAR.