ITO, Ward 3(4), Malegaon V. M/s. Parakh Agency, Nashik

ITA 1112/PUN/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8473 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 18-08-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 22-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Income from undisclosed sources; Document seized; Documents seized

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO. 1112/PN/2013 (ASSESSMENT YEAR : 2009-10) ITO,WARD-3(4), MALEGAON .. APPELLANT VS. M/S. PARAKH AGENCY, 497, MAHAVIR MARG, NANDGAON, DIST : NASHIK - 423106 .. RESPONDENT PAN NO.AAFFP6717L ASSESSEE BY : NONE REVENUE BY : SHRI RAJESH DAMOR DATE OF HEARING : 18-08-2014 DATE OF PRONOUNCEMENT : 09-09-2014 ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER DATED 11-03-2013 OF THE CIT(A)-I, NASHIK RELATING T O ASSESSMENT YEAR 2009-10. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE SERVICE OF NOTICE. THEREFORE, THIS APPEAL IS BEING DECIDED ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND AFTER HEARING THE LD. DEPAR TMENTAL REPRESENTATIVE. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT A SEARCH A ND SEIZURE ACTION U/S.132 OF THE I.T. ACT WAS CARRIED ON IN THE CASES OF MALPANI GROUP OF SANGAMNER ON 06-10-2009. DURING THE COURSE OF SAID SEARCH, A 2 STATEMENT ON OATH OF SHRI RAJESH O. MALPANI WAS REC ORDED U/S.132(4) ON 03-12-2009. IN THE STATEMENT, THE DEPONENT HAS STATED THAT THE MALPANI GROUP HAS COLLECTED CASH PREMIUM UPTO RS.95 /- PER BAG IN RESPECT OF SALE OF GAI CHAP ZARDA FROM SOME OF THE DEALERS IN F.YS. 2008-09 AND 2009-10 WHICH IS UNACCOUNTED INCOME OF SARGAM RETAIL PVT. LTD. FURTHER, IN THE STATEMENT RECORDED U/S.1 32(4) ON 03-12-2009, SHRI RAJESH O. MALPANI HAS GIVEN THE DETAILS OF CAS H COLLECTED FROM THE DEALER ON SALE OF GAICHAP ZARDA AS UNDER : A.Y. 2009-10 A.Y. 2010-11 TOTAL UNACCOUNTED CASH COLLECTED (RS.) NAME OF DEALER QTY.(BAGS) UNACCOUNTED CASH QTY.(BAGS) UNACCOUNTED CASH COLLECTED(RS.) COLLECTED(RS.) PARAKH 8478 777190 11190 1103915/- 1881105/- AGENCIES NANDGAON PAN AAFFP6717L IN VIEW OF THE ABOVE INFORMATION THE AO HAS ASKED T HE ASSESSEE TO EXPLAIN AS TO WHETHER THE ABOVE AMOUNT OF RS.7,77,1 90/- HAS BEEN REFLECTED IN THE BOOKS OF ACCOUNT AND TO EXPLAIN TH E NATURE OF THE SAID TRANSACTIONS. IN RESPONSE TO THIS QUERY OF THE AO, THE ASSESSEE FILED DETAILS OF TRANSACTIONS WITH SARGAM RETAILS PVT. LT D. SANGAMNER AND DENIED ANY SUCH PAYMENT OF RS.7,77,190/- TO SARGAM RETAILS PVT. LTD. SANGAMNER. HOWEVER, THE AO REJECTED THE REPLY OF TH E ASSESSEE AND MADE THE ADDITIONS OF RS.7,77,190/- BY RELYING ON T HE STATEMENT RECORDED U/S 132(4) OF SHRI RAJESH O. MALPANI, DIRE CTOR OF SARGAM RETAILS PVT. LTD. DURING SEARCH ACTION IN THE CASE OF THE SAID CO. IN 3 SUPPORT OF THIS ADDITION, THE AO RELIED ON THE DECI SION OF HON'BLE ITAT, DELHI IN THE CASE OF HERSH WIN CHADHA VS. DDI T. THE AO, RELYING ON THE ABOVE DECISION OBSERVED THAT UNLIKE CRIMINAL PROCEEDINGS, THE CHARGE IS NOT REQUIRED TO BE PROVED BEYOND DOUB T IN THE CASE OF INCOME TAX PROCEEDINGS. THE TECHNICAL RULES CONTAI NED IN THE INDIAN EVIDENCE ACT ARE NOT APPLICABLE IN THE INCOME TAX P ROCEEDINGS. IN CLANDESTINE TRANSACTIONS, IT IS IMPOSSIBLE TO HAVE DIRECT EVIDENCE TO PROVE THE SAID TRANSACTIONS. THE AO HAS TO ASSESS THE TAX LIABILITY CONSIDERING THE MATERIAL AVAILABLE ON RECORD, SURRO UNDING CIRCUMSTANCES, PREPONDERANCE OF PROBABILITIES AND E VIDENCE AVAILABLE ON RECORD. 3.1 THE AO FURTHER NOTICED THAT DURING THE IMPUGNED YEAR THE ASSESSEE HAS TRANSACTED 8478 BAGS WHEREAS THE AMOUN T OF RS.7,77,190/- HAS BEEN PAID TO S.R.P.L. TOWARDS PRE MIUM PAID IN CASH WHICH IS UNACCOUNTED. THE AO, THEREFORE, ASKED THE ASSESSEE TO EXPLAIN AS TO WHY IT SHOULD NOT BE TREATED THAT IN RESPECT OF BALANCE QUANTITY OF 3122 BAGS THE PREMIUM @ 91.67 PER BAG, I.E. RS.2,80,193/- WAS ALSO COLLECTED FROM THE MARKET AS UNACCOUNTED CASH AND RETAINED WITH HIMSELF AS UNACCOUNTED INCOME. T HE ASSESSEE DENIED ANY SUCH COLLECTION AND REPLIED TO THE ASSES SING OFFICER ACCORDINGLY. THE ASSESSING OFFICER, HOWEVER, REJEC TED THE REPLY OF THE ASSESSEE AND MADE ADDITION OF RS.2,86,193/- ON ACCOUNT OF UNACCOUNTED INCOME. 4 4. BEFORE CIT(A) THE ASSESSEE VEHEMENTLY OPPOSED TH E ADDITIONS MADE BY THE ASSESSING OFFICER. IT WAS SUBMITTED TH AT THE STATEMENT RECORDED DURING SEARCH ACTION U/S 132(4) HAS EVIDEN TIARY VALUE ONLY IN CASE OF THE PERSON SEARCHED AND NOT IN THE CASE OF THE THIRD PARTY. FURTHER, ASSESSEE WAS DEPRIVED OF HIS RIGHT TO CROS S EXAMINE MR. RAJESH O. MALPANI. THE STATEMENT OF THIRD PARTY CAN NOT BE USED AGAINST THE ASSESSEE WITHOUT ALLOWING CROSS-EXAMINA TION OF THE PERSON WHOSE STATEMENT HAS BEEN RELIED UPON. FOR THE ABOVE PROPOSITION, THE ASSESSEE RELIED ON THE DECISION IN CASE OF MISS LAT A MANGESHKAR REPORTED IN (1974) 97 ITR 696 (BOM.). IT WAS ACCOR DINGLY ARGUED THAT IN ABSENCE OF ANY CORROBORATIVE EVIDENCE, NO VALUE CAN BE ATTACHED TO THE STATEMENT RECORDED AND THE SAME IS NOT ENOUGH F OR MAKING AN ADDITION OF UNDISCLOSED INCOME IN THE HANDS OF THE ASSESSEE. FOR THIS PROPOSITION, THE ASSESSEE RELIED ON THE DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF ACIT VS. JITENDRA M. TH AKKAR OF NASHIK VIDE ITA NO.962/PN/2008 ORDER DATED 23-02-2011. 4.1 IN HIS ALTERNATE CONTENTION, THE ASSESSEE ARGUE D THAT FROM THE STATEMENT RECORDED OF RAJESH MALPANI U/S 132(4), IT IS CLEAR THAT PREMIUM @ 91.67 PER BAG HAS BEEN ALLEGEDLY COLLECTED BY THE D EALER FROM THE MARKET AND THE SAME HAS BEEN HANDED OVER T O S.R.P.L. ON THESE FACTS, THE ASSESSEE HAS EARNED NIL INCOME. T HEREFORE, ON THE BASIS OF SAID STATEMENT OF SHRI RAJESH O. MALPANI, NO ADDITION CAN BE MADE IN THE HANDS OF THE ASSESSEE. FOR THE ABOVE PR OPOSITION, THE ASSESSEE RELIED ON THE DECISION OF THE PUNE BENCH O F THE TRIBUNAL IN 5 THE CASE OF M/S RUSHIRAJ BUILDERS AND DEVELOPERS V S. ACIT VIDE ITA NO.L802/PN/2005 ORDER DATED 13-02-2012, WHEREIN IT HAS BEEN HELD THAT WHILE DEALING THE ISSUE OF COLLECTION OF PREMIUM AND EXPENSES MADE OUT OF IT THAT SUCH EXPENSES ARE ALLO WABLE FROM THE INCOME DECLARED FOR THE PREMIUM COLLECTED OUTSIDE B OOKS. WHILE DECIDING, THE TRIBUNAL HAS FOLLOWED THE ESTABLISHED PROPOSITION OF LAW THAT COGNIZANCE TO BE GIVEN TO THE CONTENTS OF ALL THE SEIZED DOCUMENTS TO DETERMINE UNDISCLOSED INCOME. 4.2 SO FAR AS THE OTHER ADDITION OF RS.2,86,193/- I S CONCERNED, IT WAS ARGUED THAT THE SAME WAS ADDED ON THE BASIS OF SURM ISES AND PRESUMPTION AND WITHOUT ANY CORROBORATIVE EVIDENCE. NO FURTHER ENQUIRY WAS CONDUCTED DURING ASSESSMENT PROCEEDINGS . IN FACT EVEN STATEMENT OF MR. RAJESH O. MALPANI DOES NOT SUPPORT THE IMAGINARY TRANSACTIONS FORMING BASIS FOR THE SAID ADDITION. 5. BASED ON THE ARGUMENTS ADVANCED BY THE ASSESSEE THE LD.CIT(A) DELETED BOTH THE ADDITIONS BY OBSERVING A S UNDER : 11. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE C ASE, THE ASSESSMENT ORDER AND THE RIVAL CONTENTIONS. ON PERUSAL OF THE SA ME, IT HAS BEEN NOTICED THAT SARGAM RETAILS PVT. LTD. (SRPL) IS A MANUFACTURER OF GAI CHAP JARDA AND THE APPELLANT FIRM IS A DEALER OF THE SAID PRODUC T OF SARGAM RETAILS PVT. LTD. IT HAS ALSO BEEN NOTICED FROM THE S TATEMENT RECORDED U/S. 132(4) OF SHRI RAJESH O. MALPANI, DIR ECTOR OF SARGAM RETAILS PVT. LTD. THAT THE SAID COMPANY HAS COLLECTED PREMI UM ON SALE OF JARDA FROM THE DEALERS IN CASH BY CHARGING LESS PRICE OF T HE PRODUCT TO THE DEALERS. THE APPELLANT HAS POINTED OUT T HAT THE NECESSARY COROLLARY OF THE SAME IS THAT THE DEALERS HAVE TO COLLECT PREMIUM ON SALE OF THE PRODUCT TO VARIOUS RETAILERS IN CA SH AT THE RATE FIXED BY SRPL. THE PREMIUM ALLEGEDLY COLLECTED BY THE DEALERS IS T O BE HANDED OVER TO THE SRPL. THE A.O. HAS MADE THE ADDITION S OF RS.7,77,190/- ON ACCOUNT OF PREMIUM PAID BY THE APPELLANT IN CASH TO SARGAM RETAILS PVT. LTD., SANGAMNER. THIS ADDITION HAS BEEN MADE BY THE A.O. ONLY ON THE BASIS OF STATEMENT RECORDED ON OATH OF SHRI 6 RAJESH MALPANI U/S. 132(4) IN SEARCH ACTION IN THE CASES OF MALPANI GROUP. IN VIEW OF THE FACT THAT THE APPELLANT HAS CLAIMED THAT HE HAS NOT EARNED ANY INCOME AND HAS NOT ENTERED INTO ANY TRANSAC TIONS AS ALLEGED BY THE A.O., THEREFORE, ON THESE FACTS, IT WAS MANDATORY FOR THE A.O. TO ALLOW CROSS EXAMINATION OF THE SAID PERSON TO THE APPELLANT. THE APPELLANT HAS RAISED THE ISSUE OF CROSS EXAMINATIO N IN THE SUBMISSIONS. THE A.O. HAS STATED IN THE REPORT DATED 05/03/2013 ON THE SUBMISSION OF THE APPELLANT THAT, N O CROSS EXAMINATION OF SHRI RAJESH MALPANI WAS ALLOWED TO TH E ASSESSEE DURING ASSESSMENT PROCEEDINGS. IN SUPPORT OF THE ADDITIONS, THE A.O. HAS RELIED ON THE DEC ISION IN THE CASE OF HARSH WIN CHADHA AND HAS CLAIMED THAT THE ADDITION IS N OT REQUIRED TO BE PROVED WITH DIRECT EVIDENCE UNDER THE INCOME-TAX PROCEEDINGS. THE A.O. HAS RELIED ON THE ABOVE MENTIONED DECISION AS HE HAS NOT BROUGHT ON RECORD ANY CORROBORATIVE EVIDENCE , IN SUPPORT OF THE ADDITIONS EXCEPT THE STATEMENT OF SHRI RAJE SH O. MALPANI AND AS HE HAS NOT ALLOWED CROSS EXAMINATION OF SHRI RAJESH MALPANI TO THE APPELLANT. THE A.O. HAS NOT GIVEN CITATIO N OF THE DECISION RELIED ON BY HIM. FURTHER, ON PERUSAL OF A DECI SION IT HAS BEEN NOTICED THAT THE SAME IS ON THE PROVISIONS OF FOREIG N EXCHANGE REGULATION ACT. IT IS SETTLED LAW THAT ADDITION CANNOT BE M ADE ON THE BASIS OF A STATEMENT RECORDED ON OATH UNLESS OPPORTUNITY O F CROSS EXAMINATION IS GIVEN TO THE ASSESSEE. IN THIS CASE, NO SUC H OPPORTUNITY WAS GIVEN BY THE A.O. TO THE APPELLANT A ND HENCE THE ADDITION MERELY ON THE BASIS OF THE STATEMENT RECORDED I S NOT JUSTIFIED. THIS PROPOSITION OF LAW IS SUPPORTED BY TH E FOLLOWING DECISIONS: I) CENTURION INVESTMENT AND INTERNATIONAL TRADING CO MPANY PVT. LTD. 318 ITR 24 (AT) (DEL) II) ORISSA CORPORATION 159 ITR 78 (SC). III) CIT VS. EASTERN COMMERCIAL ENTERPRISES, 210 ITR 10 3 (CAL.) IV) P.S. ABDUL MAJEED VS. AGIT&STO 209 ITR 821 (KER) V) KALRA GHEE FACTORY VS. SALES TAX TRIBUNAL 167 ITR 498 (SC) VI) GARGI DIN JWALA PRASAD VS. CIT 96 ITR 97 IN VIEW OF THE ABOVE FACTS AND DISCUSSION, I AM OF THE CONSIDER ED VIEW THAT THE A.O. IS NOT JUSTIFIED IN MAKING ADDITIONS OF RS.7,77,190/- ONLY ON THE BASIS OF STATEMENT RECORDED U/S.132 (4) OF SHRI RAJESH MALPANI. 8.2 THE ADDITION OF RS.7,77,190/- IS ALSO NOT JUSTIFIED ON ANOT HER COUNT. THE APPELLANT HAS CLAIMED IN WRITTEN SUBMISSION WITH OUT PREJUDICE TO OTHER CONTENTIONS, THAT EVEN IF AS PER THE STATEMENT OF SHRI RAJESH MALPANI, IT IS ACCEPTED THAT THE APPELLANT HAS P AID THE ABOVE AMOUNTS TO SRPL, THE SAME ARE COLLECTED ON BEHALF OF SRPL FROM VARIOUS RETAILERS AND THE RESULTANT INCOME OF THE APPEL LANT ON THESE TRANSACTIONS IS NIL. IN SUPPORT OF THIS CONTENTION, THE APPELLANT HAS RELIED ON THE DECISION OF HON'BLE ITAT, PUNE IN THE CASE OF M/S. RUSHIRAJ BUILDERS, REFERRED TO IN HIS SUBMISSION REPRODUCE D ABOVE. THE A.O. HAS NOT REBUTTED THE ABOVE CONTENTION OF THE APPE LLANT IN THE REPORT SUBMITTED BY HIM ON THE SUBMISSION OF THE APP ELLANT. 7 IN VIEW OF THE ABOVE FACTS, THE CONTENTION OF THE APPELLAN T THAT ON THE ABOVE MENTIONED ALLEGED TRANSACTIONS, NO INCOME HAS BE EN EARNED BY THE APPELLANT IS ACCEPTED. 8.3 IN VIEW OF THE ABOVE FACTS AND DISCUSSION, THE A.O. IS NOT JUSTIFIED IN MAKING ADDITIONS OF RS7,77,190/- AND THE SAME ARE DELETED. THE A.O. IS DIRECTED ACCORDINGLY. GROUND NOS. 2 AND 3 ARE ALLOWED. 9. GROUND NO.4:- AS REGARDS ADDITION OF RS.2,86,193/-, THE A.O. HAS MADE THE ADDITION CONSIDERING THAT THE APPELLANT HA S TRANSACTED 3122 BAGS OF GAI CHAP JARDA, WHEREAS THE ADDITION OF RS. 7,77,190/- HAS BEEN MADE IN RESPECT OF 8478 BAGS ON THE BASIS OF STATEMENT RECORDED U/S.132(4) OF SHRI RAJESH O. MALPANI. THE A.O. HAS WOR KED OUT THE DIFFERENCE BETWEEN THE TOTAL BAGS TRANSACTED AND THE BAGS IN RESPECT OF WHICH THE ADDITION HAS BEEN MADE AT 8478 BAGS AND HAS MADE ADDITION OF RS.2,86,193/- @ RS. 91.67 PER BAG. THIS ADDITION OF THE A.O. IS NOT SUPPORTED BY ANY EVIDENCE. NO SUCH EVIDENCE, SUPPORTING THE ADDITION HAS BEEN FOUND IN THE SEARCH ACTION IN THE CASE OF MALPANI GROUP. THE A.O. HAS NOT BROUGHT ON RECORD, ANY EVID ENCE, IN THIS REGARD BY MAKING ENQUIRIES IN THE ASSESSMENT PROCEEDINGS. THE AD DITION OF RS. 2,86,193/- IS BASED ON ASSUMPTION, PRESUMPTION AND SUSPICION. THE ADDITION OF RS.2,86,193/- MADE BY THE A.O. IN THE A BSENCE OF CORROBORATIVE EVIDENCE IS, THEREFORE, NOT JUSTIFIED A ND HENCE DELETED. THE A.O. IS DIRECTED ACCORDINGLY. GROUND NO. 4. IS A LLOWED. 6. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE REVE NUE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) ERRED IN DELETING THE ADDITION ON ACCOUNT OF UNACCOUNTED CASH PAID TO SRPL OF RS.7,77,190/-. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD.CIT(A) ERRED IN DELETING THE ADDITION ON ACCOUNT OF UNACCOUNTED CASH COLLECTED FROM MARKET OF RS.2,86,193/-. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD.CIT(A) ERRED IN PLACING THE RELIANCE ON THE ASSESSEE S SUBMISSIONS FOR NON-GRANTING OPPORTUNITY FOR CROSS EXAMINATION W HICH WAS NEVER RAISED BEFORE THE ASSESSING OFFICER DURING THE COURSE OF SCRUTINY ASSESSMENT. THE APPELLANT PRAYS THAT ALL THE ABOVE ADDITIONS BEIN G JUST AND FAIR REQUIRES TO BE SUSTAINED. 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY, DELETE AMEND ANY OF THE GROUNDS, AS PER THE CIRCUMSTANCES OF THE CASE . 5. THE APPELLANT CRAVES LEAVE TO ADDUCE SUCH FURTHER EVIDENCE TO SUBSTANTIATE ITS CASE AS THE OCCASION MAY DEMAND. 8 7. WE HAVE CONSIDERED THE ARGUMENTS ADVANCED BY THE LD. DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIA L ON RECORD. WE FIND THE ASSESSING OFFICER, BASED ON THE STATEMENT RECORDED U/S.132(4) OF SHRI RAJESH O. MALPANI, DIRECTOR OF SARGAM RETAI LS PVT. LTD. MADE ADDITION OF RS.7,77,190/- ON THE GROUND THAT SARGAM RETAILS PVT. LTD. HAS COLLECTED PREMIUM ON SALE OF GAICHAP ZARDA FROM THE DEALERS IN CASH BY CHARGING LESS PRICE OF THE PRODUCT TO THE D EALERS. WE FIND THE LD.CIT(A) DELETED THE ADDITION MADE BY THE ASSESSIN G OFFICER ON THE GROUND THAT THE ASSESSING OFFICER HAS NOT ALLOWED C ROSS EXAMINATION OF SHRI RAJESH O. MALPANI, DIRECTOR OF SARGAM RETAI LS PVT. LTD. BY THE ASSESSEE ALTHOUGH IT WAS SPECIFICALLY RAISED BEFORE THE ASSESSING OFFICER. HE FURTHER HELD THAT ADDITION CANNOT BE M ADE ON THE BASIS OF A STATEMENT RECORDED ON OATH UNLESS OPPORTUNITY OF CR OSS EXAMINATION IS GIVEN TO THE ASSESSEE. THE LD. CIT(A) HAS FURTHER OBSERVED THAT EVEN IF IT IS ACCEPTED THAT ASSESSEE HAS PAID THE EXCESS AMOUNT TO SARGAM RETAILS PVT. LTD., SAME ARE COLLECTED ON BEHALF OF SARGAM RETAILS PVT. LTD. FROM VARIOUS RETAILERS AND THE RESULTANT INCOM E OF THE ASSESSEE ON THESE TRANSACTIONS WILL BE NIL. THIS REASONED FIND ING BY THE LD.CIT(A) IN OUR OPINION DOES NOT SUFFER FROM ANY I NFIRMITY IN ABSENCE OF ANY CONTRARY MATERIAL BROUGHT TO OUR NOT ICE BY THE LD. DEPARTMENTAL REPRESENTATIVE. THEREFORE, THE ADDITI ON OF RS.7,77,190/- DELETED BY THE LD. CIT(A) IN OUR OPINION IS JUSTIFI ED AND THE GROUND OF APPEAL NO.1 BY THE REVENUE IS DISMISSED. 7.1 SO FAR AS THE ADDITION OF RS.2,86,193/- IS CONC ERNED, WE FIND THE ASSESSING OFFICER MADE THE ADDITION ON THE BASIS OF DIFFERENCE 9 BETWEEN THE TOTAL BAGS TRANSACTED AND THE BAGS IN R ESPECT OF WHICH THE ADDITION HAS BEEN MADE AT 8478 BAGS. THE LD.CIT(A) HAS GIVEN A FINDING THAT THIS ADDITION OF THE ASSESSING OFFICER IS NOT SUPPORTED BY ANY EVIDENCE. THE LD. DEPARTMENTAL REPRESENTATIVE ALSO COULD NOT BRING ANY MATERIAL TO CONTROVERT THE FINDING GIVEN BY THE LD.CIT(A) WHICH ACCORDING TO THE LD.CIT(A) IS BASED ON ASSUMP TION, PRESUMPTION AND SUSPICION. IN VIEW OF THE ABOVE, T HE ORDER OF THE CIT(A) DELETING THE ADDITION OF RS.2,86,193/- IN OU R OPINION, ALSO DOES NOT SUFFER FROM ANY INFIRMITY. ACCORDINGLY, THE SA ME IS UPHELD. GROUND OF APPEAL NO.2 BY THE REVENUE IS ACCORDINGLY DISMISSED. 7.2 SO FAR AS THE GROUNDS OF APPEAL NO.3 IS CONCERN ED, WE FIND FROM THE REMAND REPORT OF THE ASSESSING OFFICER DATED 05 -03-2013 THAT HE HAS ACCEPTED THAT NO CROSS EXAMINATION OF SHRI RAJE SH O. MALPANI WAS ALLOWED TO THE ASSESSEE DURING ASSESSMENT PROCEEDIN GS. THEREFORE, GROUND OF APPEAL NO.3 BY THE REVENUE IS DISMISSED. 7.3 GROUNDS OF APPEAL NO.4 AND 5 BEING GENERAL IN N ATURE ARE DISMISSED. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. PRONOUNCED IN THE OPEN COURT ON 09-09-2014. SD/- SD/- (SHAILENDRA KUMAR YADAV) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT ME MBER PUNE DATED: 09 TH SEPTEMBER, 2014 SATISH 10 COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. THE CIT(A)-I, NASHIK 4. THE CIT-I, NASHIK 5. THE D.R, A PUNE BENCH 6. GUARD FILE BY ORDER // TRUE COPY // ASSISTANT REGISTRAR ITAT, PUNE BENCHES, PUNE