Shri Goutam Saha, Kolkata V. CIT, Kol - XIV, Kolkata, Kolkata

ITA 1095/KOL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48210 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 06-06-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 31-05-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: L S NEGI
• Assessee Lawyers: S K PODDAR
• Keywords: Unexplained cash credit; Unexplained investment; Gift; Wrong claim; Difference of opinion; Assessment record; Change of opinion
• Section: 131; 68; 263

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH-B: KO LKATA ( ) . . , , . . , ,) [BEFORE HONBLE SHRI B.R. MITTAL, J.M. & HONBLE SH RI C.D. RAO, A.M] ! ! ! ! /I.T.A. NO. 1095/KOL./2010 '# '# '# '# $% $% $% $% /ASSESSMENT YEAR : 2005-2006 SHRI GOUTAM SAHA, KOLKATA -VS. - COMMISSIONER OF INCOME TAX, (PAN : AKOPS 5782 R) KOLKATA-XIV, KOLKA TA (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.K. PODDAR, A.R. RESPONDENT BY : SHRI L.S. NEGI, D.R. & & & & /O R D E R PER SHRI B. R. MITTAL, JUDICIAL MEMBER / . . , : BY THIS APPEAL, THE ASSESSEE HAS DISPUTED THE ORDE R OF LD. COMMISSIONER OF INCOME TAX, KOL.-XIV, KOLKATA DATED 25.03.2010 PASSED UNDER SEC TION 263 OF THE INCOME TAX ACT VIDE WHICH LD. CIT HAS SET ASIDE THE ASSESSMENT ORDER PA SSED BY THE ASSESSING OFFICER DATED 31.12.2007 WITH A DIRECTION TO PASS A FRESH ASSESSM ENT ORDER AFTER MAKING THE ADDITION OF RS.25,00,000/- AS UNEXPLAINED CASH CREDIT UNDER SEC TION 68 OF THE ACT ON ACCOUNT OF ASSESSEES BOGUS CLAIM OF GIFTS AND AFTER CONDUCTING PROPER AN D REQUISITE ENQUIRIES RELATING TO THE SUNDRY CREDITORS REMAINING UNPAID FOR MORE THAN 2-3 YEARS AS REGARDS GENUINENESS OF PURCHASES EFFECTED BY THE ASSESSEE AS WELL AS THE EXISTENCE O F THE CONCERNED PARTIES. 2. THE RELEVANT FACTS ARE THAT THE ASSESSEE FILED R ETURN SHOWN TOTAL INCOME OF RS.8,20,600/- AND THE ASSESSING OFFICER COMPLETED THE ASSESSMENT AT THE RETURNED INCOME VIDE ORDER DATED 31.12.2007. WE CONSIDER IT PRUDENT TO REPRODUCE THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER, WHICH IS AS UNDER :- THE RETURN OF INCOME WAS FILED ON 28.10.2005 SHOWI NG A TOTAL INCOME OF RS.8,20,600/-. THE CASE WAS SELECTED FOR SCRUTIN Y THROUGH CASS AS PER THE PARAMETERS OF ACTION PLAN FOR FINANCIAL YEAR 20 06-07. ON 14.08.06 NOTICE U/S.143(2) WAS ISSUED BY ACIT,CIR-42. THE CA SE WAS PART HEARD ITA NO. 1095/KOL.2010 2 BY SUCH AUTHORITY ON DIFFERENT DATES AND SUBSEQUENT LY VIDE ORDER NO. 01/07- 08/OF CIT, KOL-XIV, KOLKATA, THE JURISDICTIO N OVER THIS CASE HAS BEEN ASSIGNED TO THE UNDERSIGNED. IN RESPONSE TO FR ESH NOTICE U/S.143(2)/143(1), SHRI D.K. SAHA, A.R. APPEARED FR OM TIME TO TIME AND PRODUCED BOOKS OF ACCOUNTS AND FILED DETAILS AS PER REQUISITION. THE CASE IS HEARD AND DISCUSSED. TOTAL INCOME IS COMPUTED AS UNDER: INCOME FROM BUSINESS: NET PROFIT AS PER PROFIT & LOSS A/C. RS.7,68,297. 10. UNDER THE TRADE NAME OF M/S.GOUTAM ENTERPRISE. PARTNERS SALARY AND INTEREST ON PARTNERS CAPITAL EARNED DURING THE YEAR UNDER ASSESSMENT FROM M/S.K G CERAMICS. PARTNERS SALARY @RS.2,000/-P.M. X 12 = RS.24,000/ - INT. ON PARTNERS CAPITAL RS.29 ,015/- RS. 53,015.00 RS.8,21,3 12.1 0 INCOME FROM OTHER SOURCES: SAVINGS BANK INT. FROM S.B.A/C. RS.2, 183.75 F.D .INT. DURING THE YEAR UNDER ASSESSMENT RS . 495.00 INT. ON RBI RELIEF BOND RS.90,72 9.15 INT. ON ICICI BOND RS. 4, 000.00 POSTAL INT. ON NSC VIII ISSUE RS. 17,350.00 RS.1,14,757.90 RS.9,36,070.00 LESS: DEDUCTION U/S. 10 FOR INT. ON RBI RELIEF BOND RS. 90,729.15 GROSS TOTAL INCOME RS.8,45,340.85 LESS: DEDUCTION ULS.80L FOR BANK AND POSTAL INT. RS.12,000.00 U/S.80D FOR MEDICLAIM RS. 2,721.00 U/S.8OCCC FOR JEEVAN SURAKSHA RS.10,00 0.00 RS. 24,738.00 TOTAL INCOME RS.8,20,602.00 (R/OFF) RS.8,20,600.00 ITA NO. 1095/KOL.2010 3 INCOME-TAX ON TOTAL INCOME RS.2,20,180/- ADD: EDUCATION CESS RS. 4,403.60 RS.2,24,583.60 (R/OFF) RS.2,24,584/- LESS: PREPAID TAXES RS.2,45,000/- REFUND RS. 20 ,416/- REFUND ISSUED. ASSESSED TAX NIL ASSESSED AS ABOVE U/S.143(3). ISSUE DEMAND NOTICE A ND COPY OF ORDER. 3. LD. CIT ISSUED A NOTICE UNDER SECTION 263 OF THE ACT STATING THAT SCRUTINY OF THE ASSESSMENT RECORDS REVEALED THAT NET CAPITAL OF RS. 2,42,192/- BROUGHT FORWARD FROM THE PREVIOUS YEAR WAS INCREASED TO RS.21,08,468/- BY MAJOR INTRO DUCTION OF CAPITAL THROUGH GIFTS RECEIVED FROM DIFFERENT PERSONS TO THE TUNE OF RS.27,00,000/ - AND AFTER EFFECTING PERSONAL DRAWINGS OF RS.17.26 LAKHS. IT IS STATED THAT NONE OF THE DONOR S, EXCEPT FATHER OF THE ASSESSEE, WHO GIFTED RS.2,00,000/-, IS NEITHER HIS RELATIVE NOR FRIEND. IT IS FURTHER STATED THAT AGAINST THE TOTAL PURCHASES OF RS.6,45,422/- AND RS.44,37,676/-, AS C REDITORS AMOUNTING TO RS.20,18,739/- ONLY HAVE BEEN SHOWN. IN RESPECT OF THREE CASES, SUNDRY CREDITORS ARE MORE THAN THREE YEARS OLD AND IN TWO CASES, TWO YEARS OLD. REASONS OF SUCH CREDI TORS REMAINING UNPAID HAVE NOT BEEN PROPERLY EXAMINED/ ASCERTAINED BY ASSESSING OFFICER . LD. CIT HAS STATED THAT ASSESSING OFFICER FAILED TO MAKE PROPER SCRUTINY OF THE DETAILS FURNI SHED. 4. THE ASSESSEE FILED REPLY AND COPIES OF DOCUMENTS . THE ASSESSEE MADE FOLLOWING CONTENTIONS BEFORE LD. CIT :- (I) ASSESSEE RECEIVED GIFT AMOUNTING TO RS.27,00,00 0/- BY ACCOUNT PAYEE CHEQUES FROM DIFFERENT PERSONS INCLUDING HIS RELATIVES. THE GIFT S WERE OUT OF NATURAL LOVE AND AFFECTION. THE GIFTS WERE RECEIVED FROM BONAFIDE IN COME TAX ASSESSEES HAVING VALID PAN THROUGH ACCOUNT PAYEE CHEQUES, DULY SUPPORTED B Y PROPERLY EXECUTED VALID GIFT DEEDS. THE SAID FACTS WERE CONFIRMED BY THE SAID DO NORS BY APPEARING BEFORE THE ASSESSING OFFICER WHETHER IN PERSON OR THROUGH LD. AUTHORIZED REPRESENTATIVES AND/OR RELATIVES ALONGWITH DOCUMENTS. ASSESSING OFFICER FO UND NO DISCREPANCIES IN THE DOCUMENTS AND PERSONAL APPEARANCES. THE PERSONS, WH O GAVE THE GIFTS ARE GENUINE AND ITA NO. 1095/KOL.2010 4 GIFTS ARE DULY REFLECTED IN THE RECORDS OF THE PERS ONS, WHO HAD GIVEN GIFTS AS WELL AS IN THE RECORDS OF THE RECIPIENT. (II) THERE WERE REGULAR BUSINESS TRANSACTIONS TAKIN G PLACE WITH THE SUNDRY CREDITORS. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE ALS O PRODUCED HIS BOOKS OF ACCOUNTS AND DETAILS BEFORE ASSESSING OFFICER TO HIS SATISFA CTION. (III) THAT THERE IS NEITHER ANY LAW POINT NOR ANY E RROR IN THE ASSESSMENT ORDER WHICH REQUIRES REVISION OF THE ASSESSMENT ORDER AND, THER EFORE, THE PROCEEDINGS UNDER SECTION 263 MAY BE DROPPED. 5. LD. CIT AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE HAS STATED AS UNDER :- (A) IN RESPECT OF GIFTS THAT THE ASSESSEE RECEIVED GIFTS OF RS.27,00,000/- FROM 15 DONORS INCLUDING HIS FATHER SHRI RABI SAHA. SUMMONS UNDER SECTION 131 WERE ISSUED TO ALL OF THEM AT THE ADDRESSES GIVEN BY THE ASSESSEE AND AS AVAILABLE ON RECORD. SHRI RABI SAHA, ASSESSEES FATHER APPEARED AND STATED THAT HE HAD M ADE THE GIFT OF RS.2,00,000/- BY CHEQUE DRAWN ON UCO BANK TO HIS SON OUT OF LOVE AND AFFECTION. THE GIFT WAS MADE OUT OF WITHDRAWAL FROM HIS CAPITAL ACCOUNT. HOWEVER, OU T OF REMAINING 14 DONORS, SUMMONS IN RESPECT OF 11 DONORS WERE RETURNED BACK WITH POS TAL REMARKS NOT KNOWN OR INSUFFICIENT ADDRESS. THE SUMMONS WERE ISSUED TO THREE DONORS, NAMELY SHRI MEGHLAL BORMAN, SHRI SANWARMAL SHARMA AND SMT. SITA DEVI SH ARMA, WERE NEITHER RETURNED UN- SERVED NOR ANY ACKNOWLEDGMENT OF SERVICE WAS RECEIV ED IN THE OFFICE TILL DATE. (B) AS REGARDS ISSUE OF GENUINENESS OF GIFTS, LD. CIT HAS STATED THAT ALL THE DONORS BELONG TO DIFFERENT COMMUNITY, I.E. PRIMARILY A BUSINESS C OMMUNITY, WHEREAS THE ASSESSEE BEING A LOCAL PERSON. LD. CIT HAS FURTHER STATED TH AT THE GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS OF THE LENDERS HAVE NOT BEEN E STABLISHED BY ASSESSEE. IT IS STATED BY LD. CIT THAT BEFORE MAKING THE GIFTS TO THE ASSESSE E, THE DONORS DEPOSITED SUBSTANTIAL AMOUNTS OF MONEY IN THEIR BANK ACCOUNTS. IN MANY CA SES, THESE DEPOSITS ARE SHOWN AS BY CLEARING WHICH INDICATES THAT THE AMOUNTS WERE DEPOSITED OR INTRODUCED IN ANOTHER BANK ACCOUNT AND FROM THERE THE CHEQUES WERE ISSUED TO THE ACCOUNTS FROM WHERE THE GIFTS HAVE BEEN GIVEN. THAT SAME PATTERNS APPEARS I N ALMOST ALL THE CASES OF ITA NO. 1095/KOL.2010 5 DONORS. LD. CIT HAS STATED THAT FAILURE ON THE PART OF THE ASSESSING OFFICER TO MAKE PROPER ENQUIRY AND TO TREAT THE SAID AMOUNT OF RS.2 5,00,000/- AS UNEXPLAINED INVESTMENT UNDER SECTION 68 OF THE ACT WHILE COMPLETING THE AS SESSMENT HAS RESULTED IN UNDER ASSESSMENT OF INCOME AND CONSEQUENT LOSS TO THE REV ENUE. THEREFORE, THE ASSESSMENT IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVEN UE. (C) IN REGARD TO SUNDRY CREDITORS, LD. CIT HAS STA TED THAT ASSESSING OFFICER WHILE COMPLETING THE IMPUGNED ASSESSMENT FAILED TO LOOK I NTO THE REASONS FOR SUNDRY CREDITORS REMAINING UNPAID FOR MORE THAN 2-3 YEARS. NO PROPER SCRUTINY OF THE DETAILS FURNISHED BY THE ASSESSEE WITH REFERENCE TO THE INCOME SHOWN IN THE PROFIT & LOSS A/C. WAS MADE BY THE ASSESSING OFFICER WHILE COMPLETING THE ASSES SMENT. LD. CIT HAS STATED THAT THE ASSESSING OFFICER SHOULD HAVE EXAMINED THE SUNDRY C REDITORS WITH REFERENCE TO THE DATES AND QUANTUM OF PURCHASES MADE BY THE ASSESSEE FROM THEM AND FAILURE ON THE PART OF THE ASSESSING OFFICER TO LOOK INTO THIS ISSUE HAS RESUL TED IN UNDER ASSESSMENT OF INCOME AND CONSEQUENT LOSS TO THE REVENUE. HENCE, THE ASSESSME NT ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE. 6. IN VIEW OF THE ABOVE, LD. CIT SET ASIDE THE ASSE SSMENT WITH A DIRECTION TO ASSESSING OFFICER TO PASS A FRESH ASSESSMENT ORDER AFTER MAKI NG ADDITION OF RS.25,00,000/- AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT ON ACCOUNT OF ASSESSEES BOGUS CLAIM OF GIFTS AND ALSO TO MAKE PROPER AND REQUISITE ENQUIRIES RELATING TO THE SUNDRY CREDITORS REMAINING UNPAID FOR MORE THAN TWO TO THREE YEARS AS REGARDS GENUINENESS OF P URCHASES EFFECTED BY THE ASSESSEE AS WELL AS THE EXISTENCE OF THE CONCERNED PARTIES. HENCE, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 7. AT THE TIME OF HEARING, LD. A.R. SUBMITTED THAT ASSESSING OFFICER MADE PROPER ENQUIRIES AND ACCEPTED THE GENUINENESS OF GIFTS. HE SUBMITTED THAT THE ASSESSEE FILED REQUISITE BALANCE- SHEET AND PROFIT & LOSS A/C. OF THE DONORS AS WELL AS DECLARATION OF GIFTS BEFORE ASSESSING OFFICER AS WELL AS BEFORE LD. CIT. HE SUBMITTED THA T IT IS ONLY A CHANGE OF OPINION BY LD. CIT. HE SUBMITTED THAT WHEN THE ASSESSEE HAD GIVEN PROPE R EXPLANATION BY FURNISHING REQUISITE DOCUMENTS IN RESPECT OF DONORS, THE EXERCISE OF POW ER UNDER SECTION 263 OF THE ACT ON THE GROUND OF LACK OF PROPER ENQUIRY IS NOT JUSTIFIED. HE RELIED ON THE FOLLOWING ORDERS :- (I) CIT VS.- UNIQUE AUTOFELTS (P) LTD. (2009) 30 DTR (P&H) 231; ITA NO. 1095/KOL.2010 6 (II) CIT VS.- SUNBEAM AUTO LIMITED (2009) 227 CT R (DEL.) 133; (III) CIT VS.- DLF POWER LIMITED (2010) 229 CTR (DEL.) 27. LD. AR SUBMITTED THAT LACK OF ENQUIRY ACCORDING TO OPINION OF LD. CIT IS NOT A GROUND TO EXERCISE JURISDICTION UNDER SECTION 263 OF THE ACT. LD. AR FURTHER SUBMITTED THAT IN RESPECT OF SUNDRY CREDITORS, THEY WERE BROUGHT FORWARD AND THE RE WERE CONTINUOUS BUSINESS TRANSACTIONS BY THE ASSESSEE. HE SUBMITTED THAT THE DIRECTION GIVEN BY THE LD. CIT TO MAKE ADDITION OF RS.25,00,000/- AS BOGUS GIFTS IS NOT JUSTIFIED. HE SUBMITTED THAT THE ORDER OF LD. CIT BE QUASHED. 8. ON THE OTHER HAND, LD. D.R. SUPPORTED THE ORDER OF LD. CIT. HE SUBMITTED THAT THERE WAS NO QUESTION OF CHANGE OF OPINION. HE SUBMITTED THAT THERE IS NO REFERENCE OF GIFTS AND SUNDRY CREDITORS IN THE ASSESSMENT ORDER AND IT APPEARS TH AT ASSESSING OFFICER SIMPLY ACCEPTED WHATEVER WAS STATED BY THE ASSESSEE. LD. DR SUBMITT ED THAT OUT OF 15 DONORS, ONLY ONE DONOR, NAMELY SHRI RABI SAHA, FATHER OF THE ASSESSEE APPEA RED BEFORE LD. CIT AND REST OF THE DONORS DID NOT APPEAR. LD. DR SUBMITTED THAT OUT OF REMAIN ING 14 DONORS, THE SUMMONS SENT TO 11 PERSONS RETURNED UN-SERVED AND WHEREAS IN RESPECT O F THREE OTHER DONORS, NEITHER THE SUMMONS WERE RECEIVED BACK NOR THERE WAS ANY RESPONSE FROM THEM. HE SUBMITTED THAT ALL THE DONORS WERE HAVING MEAGER INCOME AND THERE IS NO RELATION OF THEM WITH THE ASSESSEE. LD. DR FURTHER REFERRED SOME OF THE BALANCE-SHEET OF THE DONORS AN D SUBMITTED THAT THEY WERE HAVING MEAGER INCOME BUT GIVEN PROFESSIONAL GIFTS AS THEY HAD ALS O GIVEN IN EARLIER YEARS. HE SUBMITTED THAT THE ORDER OF LD. CIT BE CONFIRMED. LD. DR FURTHER S UBMITTED THAT IN RESPECT OF SUNDRY CREDITORS, LD. CIT HAS ONLY STATED THE AO TO EXAMINE THE GENUI NENESS AFTER GIVING OPPORTUNITY TO THE ASSESSEE. 9. WE HAVE CAREFULLY CONSIDERED THE ORDERS OF AUTHO RITIES BELOW AND THE SUBMISSIONS OF THE LD. REPRESENTATIVES OF THE PARTIES. WE HAVE ALSO GO NE THROUGH THE REQUISITE PAGES OF THE PAPER BOOK FILED BEFORE US. 10. ON PERUSAL OF ASSESSMENT ORDER, IT IS A FACT TH AT THE ASSESSING OFFICER HAS NOT GIVEN ANY DETAILS IN RESPECT OF THE GIFTS AGGREGATING RS.27,0 0,000/- SHOWN BY THE ASSESSEE. THE ASSESSING OFFICER HAS ALSO NOT MENTIONED IN RESPECT OF THE SU NDRY CREDITORS AS TO WHETHER HE CALLED FOR THE DETAILS AND EXAMINED THE SAME. ITA NO. 1095/KOL.2010 7 11. IT IS A FACT THAT JURISDICTION OF LD. CIT UNDER SECTION 263 OF THE ACT IS WIDE AND MEANT TO ENSURE THAT THE ASSESSMENT ORDER IS PASSED BY ASSES SING OFFICER AS PER PROVISIONS OF THE ACT. LD. CIT CAN CONSIDER THE ORDER OF ASSESSING OFFICER TO BE ERRONEOUS NOT ONLY WHEN IT CONTAINS APPARENT ERROR OF REASONING OR OF LAW OR OF FACT ON THE FACE OF IT BUT ALSO WHEN IT IS A STEREO- TYPED ORDER, WHICH SIMPLY ACCEPTS WHAT THE ASSESSEE HAS STATED IN HIS RETURN AND THE ASSESSING OFFICER FAILS TO MAKE ENQUIRY OR EXAMINE THE GENUIN ENESS OF THE CLAIM, WHICH ARE CALLED FOR IN THE CIRCUMSTANCES OF THE CASE. HONBLE MUMBAI BENCH OF ITAT IN THE CASE OF COLORCRAFT KASHIMIRA CERAMIC COMPOUND VS.- ITO [105 ITD 599] HAS HELD THAT LACK OF ENQUIRY BY ASSESSING OFFICER WOULD RENDER ORDER OF ASSESSMENT AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. IT WAS ALSO HELD THAT MERE COLLECTION O F MATERIAL BY ASSESSING OFFICER IS NOT ENOUGH IN DISCHARGING SUCH DUTY. IT IS ALSO THE DUTY OF AS SESSING OFFICER TO EVALUATE THE MATERIAL OR EVIDENCE COLLECTED AND THEN ASCERTAIN WHETHER SUCH MATERIALS ARE ENOUGH TO SUSTAIN THE CLAIM OF ASSESSEE. 12. WE OBSERVE FROM THE ASSESSMENT ORDER THAT THE A SSESSEE FILED DETAILS OF GIFTS AND SUNDRY CREDITORS, THERE IS NO MATERIAL ON RECORD TO ESTABL ISH THAT ASSESSING OFFICER MADE ANY ENQUIRY TO ASCERTAIN THE GENUINENESS OF GIFTS AND/OR SUNDRY CR EDITORS. CONSIDERING THE FACTS OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT ASSESSING OFFICER H AS NOT PASSED A SPEAKING ORDER AFTER MAKING PROPER ENQUIRY. HENCE, WE HOLD THAT LD. CIT HAS EXE RCISED HIS JURISDICTION UNDER SECTION 263 VALIDLY. 13. WE ARE OF THE CONSIDERED VIEW THAT DIRECTION GI VEN BY LD. CIT TO MAKE AN ADDITION OF RS.25,00,000/- BY CONSIDERING THE GIFTS AS BOGUS IS NOT JUSTIFIED AND, THEREFORE, WE MODIFY THE SAID ORDER OF LD. CIT IN THAT REGARD AND DIRECT ASS ESSING OFFICER THAT HE WILL CONSIDER THE GENUINENESS OF THE GIFTS DE NOVO ON THE BASIS OF TH E MATERIAL, AS MAY BE FILED BY THE ASSESSEE AFTER GIVING DUE OPPORTUNITY OF HEARING TO THE ASSE SSEE. THE CASES CITED BY THE LD. AR (SUPRA) ARE NOT APPLICABLE TO THE FACTS OF THE CASE AS ON T HE BASIS OF THE MATERIAL PLACED ON RECORD AS MENTIONED HEREIN ABOVE, THE DETAILS OF ENQUIRY MADE BY ASSESSING OFFICER, IF ANY, ARE NOT SUBSTANTIATED. IN RESPECT OF SUNDRY CREDITORS, WE O BSERVE THAT LD. CIT HIMSELF HAS STATED THAT ASSESSING OFFICER WILL EXAMINE THE GENUINENESS OF S UNDRY CREDITORS BY GIVING DUE OPPORTUNITY TO THE ASSESSEE. THEREFORE, WE MODIFY THE ORDER OF LD. CIT TO THE EXTENT THAT IN RESPECT OF BOTH ITA NO. 1095/KOL.2010 8 ITEMS I.E. GIFTS AS WELL AS SUNDRY CREDITORS, ASSES SING OFFICER WILL EXAMINE THE GENUINENESS DE NOVO ON THE BASIS OF EVIDENCE, AS MAY BE FILED BY T HE ASSESSEE AND AFTER GIVING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE AS PER LAW. HENCE, WE MO DIFY THE ORDER OF LD. CIT ACCORDINGLY BY UPHOLDING THE ACTION OF LD. CIT. 14. IN THE RESULT, THE APPEAL OF THE ASSESEE IS ALL OWED IN PART SUBJECT TO ABOVE OBSERVATION. ORDER PRONOUNCED IN THE OPEN COURT ON 10.06. 2011. SD/- SD/- [C. D. RAO ( . . )] [ B.R . MITTAL / . . ] ACCOUNTANT MEMBER/ JUDICIAL MEMBER/ ] DATED : 10/ 06/ 2011 COPY OF THE ORDER FORWARDED TO: 1. SHRI GOUTAM SAHA, 2, AMRITLAL BOSE STREET, KOLKATA- 5. 2 CIT, KOLKATA-XIV, KOLKATA. 3 . CIT- , KOLKATA 4 . DR, KOLKATA BENCHES, KOLKATA (TRUE COPY) BY ORDER ASSISTANT REGISTRAR I.T.A.T., KOLKATA. LAHA, SR. P.S.