SHRI BHERULAL C. JAIN, Mumbai V. I.T.O. - 17(1)(2), Mumbai

ITA 1127/MUM/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1531 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 27-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAHUL K HAKANI
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice; Peak credit; Additional evidence; Question of law; Accommodation entries; Revised return; Reason to believe; Reassessment proceedings
• Section: 143(3); 142(1); 147; 131; 148; 68

Judgement Text

B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH , JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO.1127 / MUM/2018 ( / ASSESSMENT YEAR : 2009 - 10 ) SHRI BHERULAL C. JAIN B - 201, JAY VRAJ LEELA, DEEPAK NAGAR, 90 FEET ROAD, BHAYANDAR(W), DISTRICT THANE / V. ITO 17(1)(2) ROOM NO. 116, 1 ST FLOOR, AAYAKAR BHAVAN, M K ROAD, MUMBAI - 400020 ./ PAN : AFNPJ6769J ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY: SHRI. RAHUL K. HAKANI REVENUE BY : SHRI. T.KIPGEN, CIT DR / DATE OF HEARING : 06.09 .2018 / DATE OF PRONOUNCEMENT : 28 .11 .2018 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER: THIS APPEAL, FILED BY ASSESSEE, BEING ITA NO. 1127/MUM/2018 , IS DIRECTED AGAINST APPELLATE ORDER DATED 15.09.2017 PASSED BY LEARNED COMMISS IONER OF INCOME TAX (APPEALS) - 28 , MUMBAI (HEREINAFTER CALLED THE CIT(A)), FOR ASSESSMENT YEAR (AY) 20 09 - 10 , THE APPELLATE PROCEEDINGS HAD ARISEN BEFORE LEARNED CIT(A) FROM A SSESSMENT ORDER DATED 28 .03.2015 PASSED BY LEARNED ASSESSING OFFICER (HEREINAFTER CALLED THE AO) U/S 143(3) READ WITH SECTION 147 OF THE INCOME - TAX ACT, 1961 (HEREINAFTER CALLED THE ACT) FOR AY 20 09 - 10 . I.T.A. NO.1127MUM/2018 2 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN THE MEMO OF APPEAL FILED WITH THE INCOME - TAX APPELLATE TRIBUNAL, MUMBAI (HEREINAFTER CALLED THE TRIBUNAL) READ AS UNDER: - 1. THE LEARNED CIT(A) ERRED IN CONFIRMING THE ORDER OF LEARNED ASSESSING OFFICER BY PASSING AN EX - PARTE ORDER WITHOUT GIVING SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE AND HENCE ORDER OF LEARNED CIT(A) MAY BE QUASHED. 2. THE L EARNED CIT(A) ERRED IN CONFIRMING THE ORDER OF LEARNED ASSESSING OFFICER WITHOUT APPRECIATING THAT REOPENING IS BAD IN LAW AS LEARNED ASSESSING OFFICER HAD NO REASON TO BELIEVE THAT INCOME HAD ESCAPED ASSESSMENT AND HENCE ORDER OF LEARNED CIT(A) MAY BE QUA SHED. 3. THE LEARNED CIT(A) ERRED IN CONFIRMING ADDITION OF RS. 25,87,01,299/ - U/S. 68 MADE BY LEARNED ASSESSING OFFICER WITHOUT APPRECIATING THAT THE CASH CREDITS DID NOT BELONG TO THE ASSESSEE AND HENCE, ADDITION OF RS. 25,87,01,299/ - MAY BE DELETED. 4. THE LEARNED CIT(A) ERRED IN CONFIRMING ORDER OF LEARNED ASSESSING OFFICER ALTERNATIVELY MAKING ADDITION OF RS. 25,87,013/ - BEING 1% COMMISSION ON RS. 25,87,013/ - WITHOUT APPRECIATING THAT RATE OF COMMISSION OF 1% IS VERY HIGH AND SAID RATE OF COMMISS ION IS ADOPTED WITHOUT ANY BASIS AND HENCE THE ADDITION MAY BE DELETED. 5. THE APPELLANT CRAVES LEAVE TO ADD, AMEND , ALTER OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAD CLAIMED TO BE ENGAGED IN THE BUSINESS OF PACKING OF CLOTHES. THE ASSESSEE FILED RETURN OF INCOME WITH REVENUE U/S 139(1) ON 18.06.200 9 DECLARING TOTAL INCOME OF RS. 1,10,850/ - . THE SAID RETURN OF INCOME WAS REVISED BY THE ASSESSEE ON 19.12.2011 DECLARING AN INCREASED I NCOME OF RS. 1,62,560/ - . 3.2. I NFORMATION WAS RECEIVED BY THE AO FROM ACIT CIR 23(3), MUMBAI VIDE LETTER DATED 14.12.2011 THAT DURING THE COURSE OF INVESTIGATION IN THE CASE OF ONE SHRI VINAY G. DESAI, FOR A.Y. 2009 - 10 , ONE BANK ACCOUNT BEARING NUMBER 233010200016250 AT AXIS BANK, NEW MARINE LINES, MUMBAI - 400020 IS MAINTAINED BY M/S NAVKAR TRADING CO. - PROP. SHRI BHERULAL C. JAIN(ASSESSEE) , WHEREIN THE ASSESSEE HAS RECEIVED A I.T.A. NO.1127MUM/2018 3 SUM OF RS. 25,87,01,299/ - BETWEEN THE PERIOD 23.05.2008 TO 18.07.2008 WHICH WAS FOUND TO BE CREDITED IN THIS BANK ACCOUNT. THE ASSESSEE HAD FILED RETURN OF INCOME DECLARING AN INCOME WHICH WAS FOUND BY THE AO NOT TO BE COMMENSURATE WITH THE MAGNITUDE OF AMOUNT FOUND CREDITED IN THIS BANK ACCOUNT OF THE ASSESSEE , WHICH LED TO INVOCATION OF PROVISIONS OF SECTION 147 OF THE 1961 ACT LEADING TO REOPENING OF THE CONCLUDED ASSESSMENT BY THE AO U/S 147 BY ISSUANCE OF NOTICE DATED 28.10.2013 U/S 148 OF THE 1961 ACT. 3.3. THE ASSESSEE IN RESPONSE TO NOTICE DATED 28.10.2013 ISSUED BY THE AO U/S 148 OF THE 1961 ACT SUBMITTED BEFORE THE AO VIDE LETTER FILED ON 22.11.2013 THAT REVISED RETURN OF INCOME FILED BY THE ASSESSEE ON 19.12.2011 WITH REVENUE MAY BE TREATED AS RETURN OF INCOME FILED IN RESPONSE TO NOTICE U/S 148 OF THE 1961 ACT. 3.4. THE ASSESSEE DID NOT ASKED BEFORE THE AO FOR REASONS RECORDED FOR RE - OPENING OF THE CONCLUDED ASSESSMENT U/S 147 OF THE 1961 ACT AND CONSEQUENTLY THE AO DID NOT SUPPLIED SUCH REASONS FOR REOPENING OF THE CONCLUDED ASSESSMENT TO THE ASSESSEE. 3.5 THE ASSESSEE WAS ASKED BY THE AO TO SUBMIT DET AILS OF ALL DEBIT AND CREDIT ENTRIES AS WERE APPEARING IN THE SAID BANK ACCOUNT OF THE ASSESSEE MAINTAINED WITH AXIS BANK , NEW MARINE LINES, MUMBAI BUT THE ASSESSEE DID NOT SUBMIT ANY DETAILS BEFORE THE AO. THE ASSESSEE VIDE LETTER DATED 15.05.2014 DENIED HAVING ANY CONCERN WITH THE SAID BANK ACCOUNT AS WELL WITH THE SAID CONCERN M/S NAVKAR TRADING COMPANY. THE ASSESSEE STATED BEFORE THE AO THAT IT IS NOT IN A POSITION TO FURNISH ANY INFORMATION OTHER THAN STATING THAT AS THE AMOUNT IS RETURNED BACK TO THE SAID PARTY AFTER CHEQUE DISCOUNTING AND THE BANK ACCOUNT IS CLOSED. 3.6 THE AO CALLED INFORMATION FROM THE BANK DIRECTLY AND IT WAS OBSERVED BY THE AO THAT CENTRAL BUREAU OF INVESTIGATION , BANK SECURITIES & FRAUD CELL, MUMBAI (IN SHORT CBI) HAD ALSO CONDUCTED AN ENQUIRY WITH RESPECT TO THIS BANK ACCOUNT IN CONN ECTION WITH THE I.T.A. NO.1127MUM/2018 4 FRAUDULENT OVER DRAFT TRANSACTIONS FROM CANARA BANK, KHAR WEST BRAN CH , MUMBAI. THE AO SOUGHT INFORMATION FROM CBI WHO FORWARDED COPY OF STATEMENT RECORD ED OF THE ASSESSEE ON 31.01.2011 BEFORE THE CBI. THE SAID STATEMENT IS PLACED IN PAPER BOOK FILED BY THE ASSESSEE AT PAGE 22 - 23. THE AO OBSERVED FROM THE SAID STATEMENT THAT THE ASSESSEE HAD STATED THAT ON THE ADVICE FROM HIS MATERNAL BROTHER(MAUSIS SON) SHRI RAJENDRA JAIN , WHO IS INVOLVED IN DIAMOND BROKERAGE, AN BANK ACCOUNT WAS OPENED IN THE NAME OF M/S NAVKAR TRADING COMPANY WITH AXIS BANK , NEW MARINE LINES, MUMBAI WHICH WAS TO BE OPERATED BY SHRI RAJESH PAMECHA, WHO WORKS IN THE DIAMOND MARKET FOR C HEQUE DISCOUNT WORK. IT WAS AFFIRMED BY THE ASSESSEE IN THE SAID STATEMENT RECORDED BEFORE CBI THAT THE ASSESSEE WAS PROMISED 1% BROKERAGE ON EVERY CHEQUE AND ACCORDINGLY ASSESSEE CLAIMED TO HAVE SIGNED CHEQUE B OOK OF THE ACCOUNT OPENED WITH AX IS BANK , NEW MARINE LINES BRANCH WHICH WAS HANDED OVER TO SHRI RAJESH PAMECHA THROUGH SHRI RAJENDRA JAIN. THE AO OBSERVED THAT THE ASSESSEE IS CHANGING ITS STAND TIME AND AGAIN. THE ASSESSEE HAD ALSO FILED REVISED RETURN OF INCOME WITH REVENUE ON 19.12.2011 , AFTER TH E AO RECEIVED THE INFORMATION FROM ACIT, CIRCLE 23(3),MUMBAI , WHEREIN THE ASSESSEE STATED THE NATURE OF ITS BUSINESS AS FROM M/S NAVKAR AND GRIH UDYOG ETC. AND THE ASSESSEE INCREASED ITS INCOME BY AN AMOUNT OF RS. 51,000/ - PURPORTEDLY FROM NAVKAR TRAD ING COMPANY . THE AO OBSERVED THAT FROM THE DATE OF FILING OF REVISED RETURN OF INCOME ON 19.12.2011 , THE ASSESSEE HAD ADMITTED TO BE THE OWNER OF THE BANK ACCOUNT WITH AXIS BANK, NEW MARINE LINES, MUMBAI. THE ASSESSEE ALSO FILED AN DECLARATION ON 19.12.20 11 WITH AO STATING HE WAS NOT HAVING ANY MALAFIDE INTENTION TO DO BUSINESS IN THE NAME OF M/S NAVKA R TRADING COMPANY. IT WAS STATED IN SAID DECLARATION THAT THE ASSESSE WAS LURED BY HIS COUSIN TO CLEAR FINANCIAL CRISIS.THE ASSESSEE CLAIMED IN SAID DECLARAT ION DATED 19.12.2011 THAT THE ASSESSEE IS MIDDLE CLASS PERSON WHO WAS MISGUIDED AND MISTRUSTED BY HIS NEAREST PERSON AND WAS NOT HAVING ANY WRONG TRACK IN LIFE. THE SAID DECLARATION IS PLACED IN PAPER BOOK/PAGE 3. THE ASSESSEE DURING THE COURSE OF REASSES SMENT PROCEEDINGS BEFORE THE AO KEPT ON STATING THAT I.T.A. NO.1127MUM/2018 5 HE DOES NOT HAVE ANY INFORMATION WITH RESPECT TO NAVKAR TRADING COMPANY. A SWORN STATEMENT U/S 131 OF THE 1961 ACT WAS RECORDED BY THE AO ON 15.12.2014 OF THE ASSESSEE , WHEREIN THE ASSESSEE STATED THAT IT WOULD RECEIVE COMMISSION OF 0.02% ONLY OF THE TRANSACTIONS IN THE SAID BANK ACCOUNT.THE SAID STATEMENT IS PLACED IN PAPER BOOK/PAGE 24 - 25.THE AO ALSO OBSERVED THAT BEFORE CBI , THE ASSESSEE ADMITTED TO HAVING RECEIVED COMMISSION @1% WHILE AGAIN TH E ASSESSEE IS C HANGING ITS STAND THAT HE RECEI VED COMMISSION @0.02% WHICH WAS DESCRIBED BY AO AS AN AFTER THOUGHT TO REDUCE HIS LIABILITY. 3.7 THE ASSESSEE WAS ASKED BY THE AO DURING REASSESSMENT PROCEEDINGS TO PROVIDE COMPLETE DETAILS OF MR RAJESH PAMECH A BY THE AO , TO WHICH THE ASSESSEE PROVIDED DECLARATION OF SHRI RAJESH PAMECHA ONLY AT THE FAG END I.E. 23 - 03 - 2015 WHEN THE ASSESSMENT WAS GETTING TIME BARRED AND THE AO ALSO OBSERVED THAT THE SAID DECLARATION IS IN THE FORM OF LETTER WRITTEN ON PLAIN PAP ER.IN THE SAID DECLARATION SAID MR RAJESH PAMECHA STATED THAT THE ASSESSEE IS NOT CONCERNED WITH THE BANKING TRANSACTIONS IN THE SAID BANK ACCOUNT MAINTAINED WITH AXIS BANK LIMITED IN THE NAME OF NAVKAR TRADING COMPANY. THE SAID DECLARATION IS PLACED IN PA PER BOOK/PAGE 27. THE AO IN ORDER TO VERIFY THE AUTHENTICITY OF THE SAID DECLARATION AND PERSON MAKING IT , ISSUED SUMMONS U/S 131 OF THE 1961 ACT AND SERVED BY AFFIXTURE TO SHRI RAJESH PAMECHA AT THE ADDRESS PROVIDED BY THE ASSESSEE BUT THERE WAS NO COMPL IANCE BY SAID SHRI RAJESH PAMECHA TO SAID SUMMONS. THUS, THE AO WAS UNABLE TO VERIFY THE VERACITY OF DECLARATION PURPORTEDLY EXECUTED BY MR RAJESH PAMECHA. 3.8 THE AO WAS OF THE VIEW THAT THE ASSESSEE HAS NOT BEEN ABLE TO DISCHARGE ITS ONUS OF PROVING THE DEBIT AND CREDIT ENTRIES ARE APPEARING IN BANK ACCOUNT OF NAVKAR TRADING COMPANY OF WHICH THE ASSESSEE IS PROPRIETOR MAINTAINED WITH AXIS BANK, NEW MARINE LINES, MUMBAI NOR SOURCES OR DESTINATION OF SUCH FUN DS WERE ESTABLISHED. THE AO RELIED UPON LARGE N UMBER OF JUDICIAL DECISIONS OF SUPERIOR COURTS AS FOUN D MENTIONED IN ASSESSMENT ORDER AND ALSO ON PROVISIONS OF SECTION 68 OF I.T.A. NO.1127MUM/2018 6 THE 1961 ACT , WHICH LED AO TO CONCLUDE THAT THE ASSESSEE IS NOT ABLE TO OFFER PLAUSIBLE EXPLANATION TO THE SOURCES OF THE AMOUNT FOUND CREDITED IN THE BANK ACCOUNT AMOUNTING TO RS. 25,87,01,299/ - WHICH WERE TREATED BY THE AO AS AN UNEXPLAINED CASH CREDIT AND ADDED BACK TO THE INCOME OF THE ASSESSEE VIDE ASSESSMENT ORDER DATED 28.03.2015 PASSED BY THE AO U/S 143(3) R.W.S. 147 OF TH E 1961 ACT. WITHOUT PREJUDICE TO THE ABOVE ADDITIONS, THE AO MADE ADDITION @1% BEING COMMISSION OF THE SUM FOUND CREDITED IN THE SAID BANK ACCOUNT BASED ON STATEMENT GIVEN BY THE ASSESSEE BEFORE CBI, IN CASE THE ASSESSEE IS ABLE TO PROVE THE SOURCES AND D ESTINATION OF THE CREDIT AND DEBIT ENTRIES APPEARING IN THE SAID BANK ACCOUNT , WHICH LED TO ADDITION OF AN AMOUNT OF RS. 25,87,013/ - BEING 1% COMMISSION OF RS. 25,87,01,299/ - , WHICH WAS ADDED BACK TO THE INCOME OF THE ASSESSEE, ON PROTECTIVE BASIS BY TH E AO. 4. THE MATTER REACHED BEFORE LEARNED CIT(A) AT THE BEHEST OF THE ASSESSEE WHEREIN THE ASSESSEE FILED FIRST APPEAL BEFORE LEARNED CIT(A) . THE LEARNED CIT(A) HAD PASSED AN EX - PARTE APPELLATE ORDER DATED 15.09.2017 AS THE ASSESSEES REPRESENTATIVE DID N OT APPEAR BEFORE LEARNED CIT(A) ON THE FINAL DATE OF HEARING ON 14.09.2017. THE LEARNED CIT(A) FIXED THE FIRST DATE OF HEARING ON 24.11.2016 ON WHICH DATE NONE HAD ATTENDED ON BEHALF OF THE ASSESSEE. THEN THE APPEAL WAS AGAIN FIXED FOR HEARING ON 16.03.201 7 BEFORE LEARNED CIT(A) AND THE ASSESSEE CA SOUGHT ADJOURNMENT ON THAT DATE. THEREAFTER , THE APPEAL WAS FIXED BY LEARNED CIT(A) ON 14.09.2017 WHEN NONE APPEARED FOR ASSESSEE AND THE LEARNED CIT(A) WAS PLEASED TO PASS AN EX - PARTE APPELLATE ORDER DATED 15.0 9.2017. 4.2 THE ASSESSEE HAD PRAYED FOR AN EARLY HEARING BEFORE THE TRIBUNAL BY FILING AN APPLICATION DATED 12.07.2018 SUPPORTED BY AN AFFIDAVIT DATED 19.07.2018 DULY EXECUTED BY THE ASSESSEE . THE SAID APPLICATION WAS ALLOTTED E.H. NUMBER 139/MUM/2018 B Y THE REGISTRY OF THE TRIBUNAL . IN THE SAID APPLICATION AND AFFIDAVIT WHICH IS PLACED IN FILE, LINE OF ARGUMENT OF THE ASSESSEE IN NUT - SHELL IS THAT THE NOTICE S OF HEARINGS I.T.A. NO.1127MUM/2018 7 ISSUED BY LEARNED CIT(A) WERE RECEIVED BY ITS ADVOCATE SH. J.G.PARMAR , AS IT IS C LAIMED BY THE ASSESSEE THAT THE SAID ADVOCATES ADDRESS WAS GIVEN BY THE ASSESSEE TO REVENUE AS ASSESS EES ADDRESS FOR COMMUNICATION AND WHOSE ADDRESS THE ASSESSEE WAS ALSO USING FOR ITS OPERATIONS, BUT THE NOTICES DATED 24.11.2016 AND 24.07.2017 WERE N OT FORWARDED BY THE SAID ADVOCATE TO THE ASSESSEE WHICH WAS THE REASON FOR NON - APPEARANCE OF THE ASSESSEE BEFORE LEARNED CIT(A) ON THE DATES FIXED FOR HEARING BY LEARNED CIT(A) , AND WHICH FINALLY LED TO NON APPEARANCES BY THE ASSESSEE BEFORE LEARNED CIT(A) ON 14.09.2017 CULMINATING INTO AN EX - PARTE ORDER PASSED BY LEARNED CIT(A) ON 15.09.2017 . IT IS CLAIMED THAT ON ONE OCCASION THE SAID ADVOCATE FORWARDED THE NOTICE AND THE CHARTERED ACCOUNTANT OF THE ASSESSEE ENTERED APPEARANCES BEFORE LEARNED CIT(A) ON THE DATE OF HEARING BUT ON THE LAST OCCASION THE LEARNED CIT(A) ISSUED NOTICE DATED 24.07.2017 FIXING THE DATE OF HEARING TO BE 14.09.2017, BUT THE SAID NOTICE DATED 24.07.2017 WAS NO T FORWARDED BY THE SAID ADVOCATE MR J G PARMAR TO THE ASSESSEE WHICH LED TO NON APPEARANCE OF THE ASSESSEE BEFORE LEARNED CIT(A) ON 14.09.2017 WHICH FINALLY LED TO AN EX - PARTE APPELLATE ORDER PASSED BY LEARNED CIT(A) DATED 15.09.2017. THE ASSESSEE HAS ALSO CLAIMED THAT INFACT THE CHARTERED ACCOUNTANT OF THE ASSESSEE M/S PUNEET SINGHAVI & ASSOCIATES HAD EARLIER FILED AN EARLY HEARING APPLICATION DATED 20.01.2017 WITH CCIT - 7 , MUMBAI FOR GETTING ITS FIRST APPEAL WITH LEARNED CIT(A) FIXED FOR EARLY HEARING. THE SAID APPLICATION FOR EARLY HEARING FILED BEFORE CCIT - 7,MUMBAI DATED 20.01.2017 IS PLACED IN PAPER BOOK/PAGE 8 - 9. COMING BACK TO T HE EARLY HEARING APPLICATION BEARING E.H. NO. 139/MUM/2018 ARISING OUT OF ITA NO. 1127/MUM/2018 FILED BY THE ASSESSEE BEFOR E THE TRIBUNAL, THIS APPLICATION WAS HEARD BY THE BENCH OF THE TRIBUNAL ON 27 TH JULY 2018 WHEREIN THE REQUEST FOR EARLY HEARING WAS ACCEDED BY THE BENCH VIDE ORDER PASSED ON 27 TH JULY 2018 , IN WHICH, INTER - ALIA, B ENCH ALSO NOTED THAT LEARNED COUNSEL FOR THE ASSESSEE HAS PLEADED THAT THE ASSESSEE HAS A STRONG CASE FOR RESTORATION OF ITS APPEAL BEFORE THE LEARNED CIT(A) . I.T.A. NO.1127MUM/2018 8 4.3 THE LEARNED CIT(A) WHILE ADJUDICATING ASSESSEES FIRST APPEAL VIDE APPELLATE ORDERS DATED 15.09.2017 HA D UPHELD THE REOPENING OF THE CONCLUDED ASSESSMENT U/S 147 OF THE 1961 ACT ON JURI S D IC TIONAL GROUND . THE LEARNED CIT(A) ALSO DISMISSED THE APPEAL OF THE ASSESSEE ON MERITS AND ASSESSMENT ORDER FRAMED BY THE AO WAS AFFIRMED BY LEARNED CIT(A) ON MERITS . THE ASSESSEE HAD PLEADED BEFORE LEARNED CIT(A) TO CONSIDER TWO MORE ALLEGED STATEMENTS DATED 19.12.2011 AND 15.12.2014 OF THE ASSESSEE RECORDED BEFORE CBI TO BE CONSIDERED BUT SINCE THOSE STATEMENTS WERE NOT SUPPLIED BY THE ASSESSEE AND A BALD ARGUMENTS WERE MADE, THE LEARNED CIT(A) REJE CTED THE SAID CONTENTION OF THE ASSESSEE. THE LEARNED CIT(A) RELIED UPON LARGE NUMBER OF JUDICIAL DECISIONS TO COME TO CONCLUSION THAT THE ASSESSEES APPEAL NEEDS TO BE DISMISSED BOTH ON JURISDICTIONAL GROUND AS TO CHALLENGE TO REOPENING OF CONCLUDED ASSES SMENT U/S 147 OF THE 1961 ACT AND ALSO ON MERITS , WHICH FOUND MENTIONED IN THE APPELLATE ORDER DATED 15.09.2017 PASSED BY LEARNED CIT(A). 5. THE ASSESSEE IS NOW BEFORE THE TRIBUNAL AS HE HAS FILED SECOND APPEAL BEFORE THE TRIBUNAL. THE LEARNED COUNSEL FO R THE ASSESSEE OPE NED ARGUMENTS BEFORE THE BENCH AND DREW OUR ATTENTION TO STATEMENT RECORDED OF THE ASSESSEE ON 30.01.2011 BEFORE CBI, WHICH IS PLACED IN PAPER BOOK/PAGE 22 - 23. IT WAS EXPLAINED THAT REASSESSMENT PROCEEDINGS WERE INITIATED BY REVENUE BY RE OPENING CONCLUDED ASSESSMENT U/ 147 OF THE 1961 ACT BY ISSUANCE OF NOTICE DATED 28.10.2013 ISSUED BY THE AO U/S 148 OF THE 1961 ACT WHICH WAS WITHIN FOUR YEARS FROM THE END OF THE ASSESSMENT. OUR ATTENTION WAS DRAWN TO PAGE 19 OF THE PAPER BOOK WHEREIN REA SONS FOR REOPENING WERE SUPPLIED BY THE AO VIDE LETTER DATED 27.08.2018. IT WAS SUBMITTED THAT REASONS WERE NOT SUPPLIED EARLIER BY REVENUE. IT WAS EXPLAINED THAT APPELLATE ORDER DATED 15.09.2017 PASSED BY LEARNED CIT(A) WAS AN EXPARTE ORDER. IT WAS EXPLAIN ED THAT STATEMENT OF THE ASSESSEE WAS RECORDED BY THE AO ON 15.12.2014 U/S 131 OF THE 1961 ACT, WHICH IS PLACED IN PAPER BOOK/24 - 25. IT WAS CLAIMED THAT THE ASSESSEE CO - OPERATED BEFORE THE AO I.T.A. NO.1127MUM/2018 9 AND PARTICIPATED IN REASSESSMENT PROCEEDINGS. IT WAS SUBMITTED THAT THE ASSESSEE HELD TWO INCOME - TAX PERMANENT ACCOUNT NUMBERS ( POPULARLY KNOWN AS PAN) VIDE PAN NO. AFNPJ6760J AND AADPJ5133E. OUR ATTENTION WAS DRAWN TO PAGE 21 WHEREIN LETTER WRITTEN BY ITO - 12(1)(2),MUMBAI DATED 15.12.201 1 TO ACIT - 23(3), MUMBAI IS PLACED WHICH CONTAINED ALL DETAILS OF THESE TWO PANS AND FILING OF INCOME - TAX RETURN BY THE ASSESSEE WITH RESPECT TO ONLY ONE PAN I.E. AFNPJ6706J. THE ASSESSEE HAD USED ANOTHER PAN AAPJ5133E FOR OPENING BANK ACCOUNT WITH AXIS BA NK, NEW MARINE LINES, MUMBAI AND NO RETURN OF INCOME WAS FILED WITH RESPECT TO THIS PAN HELD BY THE ASSESSEE (PAGE 19/PB). IT WAS SUBMITTED THAT RETURN OF INCOME ORIGINALLY FILED BY THE ASSESSEE UNDER PAN AFNPJ6706J WAS PROCESSED U/S 143(1) OF THE 1961 ACT . IT WAS SUBMITTED THAT THE CASE OF THE ASSESSEE WAS REOPENED BY THE AO FOR REASSESSMENT FOR CARRYING OUT FURTHER INVESTIGATIONS. OUR ATTENTION WAS DRAWN TO REASONS RECORDED FOR REOPENING OF THE CONCLUDED ASSESSMENT U/S 147 WHICH ARE PLACED IN PAPER BOOK/P AGE 19 - 20. OUR ATTENTION WAS ALSO DRAWN TO PAGE 27/PAPER BOOK WHEREIN DECLARATION DATED 23.03.2015 BY MR RAJESH PAMECHA IS PLACED. OUR ATTENTION WAS DRAWN TO PAGE 120/PAPER BOOK WHEREIN AADHAR CARD OF MR RAJESH KUMAR PAMECHA IS PLACED . OUR ATTENTION IS A LSO DRAWN TO PAGE NUMBER 119/PAPER BOOK WHEREIN INCOME - TAX PERMANENT ACCOUNT NUMBER (PAN ) OF MR RAJESH KUMAR PAMECHA IS PLACED.IT WAS SUBMITTED THAT THESE ARE PUBLIC DOCUMENTS WHICH ARE FILED FOR THE FIRST TIME BEFORE TRIBUNAL AS ADDITIONAL EVIDENCES. IT WAS SUBMITTED THAT 3 NOTICES WERE ISSUED BY LEARNED CIT(A) VIZ. FIRST NOTICE WAS ISSUED FIXING HEARING FOR 24.11.2016 WHICH WAS NOT GIVEN TO THE ASSESSEE BY ADVOCATE MR J.G.PARMAR AND HENCE NONE ATTENDED ON THE DATE OF HEARING. IT WAS EXPLAINED THAT THE O FFICE OF SAID ADVOCATE MR J G PARMAR WAS USED BY THE ASSESSEE FOR ITS OPERATIONS AND IT IS INFACT OFFICE ADDRESS OF MR J G PARMAR, ADVOCATE WHICH WAS GIVEN FOR COMMUNICATION BEFORE THE REVENUE AUTHORITIES INCLUDING LEARNED CIT(A). THE ASSESSEE HAS FILED AN AFFIDAVIT DATED 1 9.07.2018 BEFORE THE TRIBUNAL WITH ITS APPLICATION FOR EARLY HEARING BEFORE THE TRIBUNAL, AS WE SAW EARLIER IN THIS ORDER . IT IS CLAIMED IN THE I.T.A. NO.1127MUM/2018 10 SAID AFFIDAVIT DATED 19.07.2018 THAT THE ASSESSEE APPOINTED M/S PUNEET SINGHVAI & ASSOCIATES, CHARTERED ACCOUNTANTS TO REPRESENT ASSESSEE BEFORE THE LEARNED CIT(A). THE SAID CAS INFACT FILED AN EARLY HEARING APPLICATION DATED 20.01.2017 BEFORE LEARNED CCIT - 7, MUMBAI WHICH IS PLACED IN PAPER BOOK/PAGE 8 - 9. THEN , IT IS EXPLAINED SECOND NOTICE WAS ISSUED BY LEARNED CIT(A) FIXING NEXT DATE OF HEARING TO BE 16.03.2017 ON WHICH DATE CA OF THE ASSESSEE APPEARED BEFORE LEARNED CIT(A) AND SOUGHT ADJOURNMENT, WHICH WAS GRANTED BY LEARNED CIT(A) AND NEXT DATE OF HEARING WAS FIXED FOR 08.05.2017. ON THE DAT E OF HEARING ON 08.05.2017, IT WAS EXPLAINED THAT CA WAS INFORMED BY LEARNED CIT(A) THAT NEXT DATE OF HEARING WILL BE FIXED IN THE MONTH OF AUGUST 2017 FOR WHICH LEARNED CIT(A) INFORMED THAT FRESH NOTICE WILL BE ISSUED. IT WAS EXPLAINED THAT THE LEARNED CI T(A) ISSUED THIRD NOTICE ON 24.07.2017 FIXING DATE OF HEARING ON 14.09.2017 WHICH NOTICE WAS RECEIVED BY SAID ADVOCATE BUT THE DATE OF HEARING WAS NOT COMMUNICATED BY SAID ADVOCATE MR J G PARMAR TO THE ASSESSEE AND HENCE CONSEQUENTLY THERE WAS NO APPEARANC E BEFORE LEARNED CIT(A) OF THE ASSESSEE ON THE APPOINTED DATE I.E. 14.09.2017. THE LEARNED CIT(A) PASSED AN EX - PARTE APPELLATE ORDER ON 15.09.2017. THESE FACTS ARE ALSO AVERRED IN THE AFFIDAVIT DATED 19.07.2018 WHICH IS PLACED IN FILE. THE ASSESSEE HAS ALS O FILED AN ASSESSMENT ORDER IN THE CASE OF MR VINAY G DESAI FOR AY 2007 - 08. IT WAS PRAYED THAT SINCE THE ASSESSEE DID NOT GET PROPER OPPORTUNITY OF BEING HEARD BEFORE LEARNED CIT(A) MAINLY DUE TO NON FURNISHING OF NOTICES BY ITS ADVOCATE MR J G PARMAR AND IT IS AN EX - PARTE ORDER, THE MATTER MAY BE RESTORED TO THE FILE OF LEARNED CIT(A) WHEREIN THE ASSESSEE WOULD BE ABLE TO EXPLAIN ITS CASE WITH COGENT EVIDENCES . IT WAS SUBMITTED THAT HIGH PITCHED ASSESSMENT IS FRAMED AGAINST THE ASSESSEE WHEREIN ALL CREDIT S IN THE BANK ACCOUNT MAINTAINED WITH AXIS BANK, NEW MARINE LINES , MUMBAI WERE ADDED TO THE INCOME OF THE ASSESSEE . IT WAS PRAYED THAT IN THE INTEREST OF JUSTICE A LIBERAL VIEW MAY BE TAKEN AND THE ALL THE ISSUES MAY BE RESTORED TO THE FILE OF LEARNED CIT(A) FOR FRAMING FRESH APPELLATE ORDER AFTER PROVIDING OPPORTUNITY TO THE ASSESSEE. I.T.A. NO.1127MUM/2018 11 5.2 THE LEARNED DR SUBMITTED THAT THE ASSESSEE DID NOT EVEN APPEARED PROPERLY BEFORE THE AO AND THE ASSESSEE WAS CHANGING ITS STAND TIME AND AGAIN. THE LEARNED DR SUBMIT TED THAT THE ASSESSEE DID NOT ASKED FOR THE REASONS FOR REOPENING OF THE CONCLUDED ASSESSMENT U/S 147 EARLIER AND NO EVIDENCE IS PLACED ON RECORD TO CONTEND THAT THE REASONS FOR REOPENING OF THE CONCLUDED ASSESSMENT U/S 147 WERE ASKED BY THE ASSESSEE PRIOR TO ITS LETTER DATED 27.02.2018 AND 23.05.2018 (PB/ PAGE 10 - 11) . IT WAS SUBMITTED THAT REASONS FOR REOPENING OF CONCLUDED ASSESSMENT WERE SUPPLIED BY THE AO LETTER DATED 28.08.2018 (PB/PAGE 19 - 20) . THE LEARNED DR WOULD SUPPORT ORDER OF AUTHORITIES BELOW AND RELIED ON DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT V. D.K.GARG (2017) 84 TAXMANN.COM 257(DELHI) TO CONTEND THAT APPELLATE ORDER OF LEARNED CIT(A) BE CONFIRMED . 5.3 THE LEARNED COUNSEL FOR THE ASSESSEE IN REJOINDER SUBMITTED THAT THE A SSESSEE HAS FILED THE INFORMATION OBTAINED BY THE AO FROM AXIS BANK DIRECTLY(PAGE 70 - 118/PAPER BOOK) AND ASSESSMENT ORDER IN THE CASE OF MR VINAY G DESAI (PAGE 28 - 69/PAPER BOOK) IN THE PAPER BOOKS . IT IS CLAIMED THAT APPLICATIONS UNDER RTI ACT, 2005 WERE F ILED BY THE ASSESSEE WITH INCOME - TAX DEPARTMENT AND CBI TO SEEK INFORMATION RELATED TO ITS CASE.THE SAID APPLICATIONS ARE PLACED IN PAPER BOOK/PAGE 14 - 18. THUS, IN NUT - SHELL IT WAS PRAYED THAT ONE MORE OPPORTUNITY BE GRANTED AND MATTER MAY BE RESTORED BEF ORE LEARNED CIT(A) FOR DENOVO ADJUDICATION OF THE ISSUE AFTER CONSIDERING THE CONTENTIONS OF THE ASSESSEE . 6. WE HAVE CONSIDERED RIVAL CONTENTIONS AND PERUSED MATERIAL ON RECORD INCLUDING CITED CASE LAWS. T HE ASSESSEE HAD CLAIMED TO BE ENGAGED IN THE BUSINESS OF PACKING OF CLOTHES. THE ASSESSEE FILED RETURN OF INCOME U/S 139(1) ON 18.06.2009 DECLARING TOTAL INCOME OF RS. 1,10,850/ - . THE SAID RETURN OF INCOME WAS REVISED ON 19.12.2011 BY THE ASSESSEE DECLARING AN INCREASED INCOME OF RS. 1,62,560/ - , WHIC H WAS FILED IN PURSUANCE TO NOTICE DATED 14.12.2011 U/S 142(1) ISSUED BY THE AO . INFORMATION WAS RECEIVED BY THE AO FROM ACIT CIR 23(3), MUMBAI VIDE I.T.A. NO.1127MUM/2018 12 LETTER DATED 14.12.2011 THAT DURING THE COURSE OF INVESTIGATION IN THE CASE OF ONE SHRI VINAY G. DESAI, FOR A.Y. 2009 - 10 , ONE BANK ACCOUNT BEARING NUMBER 233010200016250 AT AXIS BANK, NEW MARINE LINES, MUMBAI - 400020 IS MAINTAINED BY M/S NAVKAR TRADING CO. - PROP. SHRI BHERULAL C. JAIN, WHEREIN THE ASSESSEE HAS RECEIVED A SUM OF RS. 25,87,01,299/ - BETWEEN THE PERIOD 23.05.2008 TO 18.07.2008 WHICH WAS FOUND TO BE CREDITED IN THIS BANK ACCOUNT OF THE ASSESSEE . THE ASSESSEE WAS FOUND TO BE HOLDING TWO PAN NUMBERS WHEREIN ONE PAN (AFNPJ6760J) WAS USED TO FILE RETURN OF INCOME WHILE THE OTHER PAN (PAN AADPJ5133E) WA S USED FOR OPENING THIS BANK ACCOUNT WITH AXIS BANK, WHICH LED AO TO ISSUE DATED 14.12.2011 NOTICE U/S 142(1) ASKING FOR FILING OF RETURN UNDER PAN AADPJ5133E , WHEREIN THE ASSESSEE FILED REVISED RETURN OF INCOME ON 19.12.2011 UNDER PAN AFNPJ6760J WHILE RE QUEST WAS SIMULTANEOUSLY MADE VIDE LETTER DATED 19.12.2011 FILED BEFORE THE AO TO CANCEL PAN AADPJ5133E . THE ASSESSEE HAD FILED RETURN OF INCOME WHICH WAS REVISED LATER ON 19.12.2011 WHEREIN IT WAS FOUND BY THE AO THAT INCOME DECLARED THEREIN WAS NOT COMM ENSURATE WITH THE MAGNITUDE OF AMOUNT FOUND CREDITED IN THIS BANK ACCOUNT OF THE ASSESSEE MAINTAINED WITH AXIS BANK AND THE SAID TANGIBLE INCRIMINATING INFORMATION SO RECEIVED BY THE AO LED TO REOPENING OF THE CONCLUDED ASSESSMENT BY THE AO U/S 147 BY ISSU ANCE OF NOTICE DATED 28.10.2013 U/S 148 OF THE 1961 ACT , WHICH WAS DONE WITHIN FOUR YEARS FROM THE END OF THE ASSESSMENT YEAR AND ALSO ORIGINALLY NO SCRUTINY ASSESSMENT U/S 143(3) WAS FRAMED BY THE REVENUE WHILE PROCESSING RETURN OF INCOME ORIGINALLY FILE D U/S 139(1) WHICH WAS LATER REVISED ON 19.12.2011 . THE ASSESSEE IN RESPONSE TO NOTICE DATED 28.10.20 13 ISSUED BY THE AO U/S 148 OF THE 1961 ACT SUBMITTED VIDE LETTER FILED ON 22.11.2013 THAT REVISED RETURN OF INCOME FILED BY THE ASSESSEE ON 19.12.2011 MAY BE TREATED AS RETURN OF INCOME FILED IN RESPONSE TO NOTICE U/S 148 OF THE 1961 ACT. IT IS PERTINENT TO MENTION HERE THAT REOPENING OF THE CONCLUDED ASSESSMENT BY INVOCATION OF PROVISIONS OF SECTION 147 OF THE 1961 ACT WAS DONE BY REVENUE WITHIN FOUR YEAR S FROM THE END OF THE ASSESSMENT YEAR AND ALSO THAT ORIGINALLY WHILE I.T.A. NO.1127MUM/2018 13 PROCESSING RETURN OF INCOME FILED U/S 139(1) AND REVISED RETURN OF INCOME FILED BY THE ASSESSEE ON 19.12.2011, NO SCRUTINY ASSESSMENT WAS FRAMED BY REVENUE U/S 143(3) AND ONLY RETURN OF INCOME WAS PROCESSED U/S 143(1). THE REOPENING OF THE CONCLUDED ASSESSMENT WAS BASED ON THE TANGIBLE INCRIMINATING INFORMATION RECEIVED BY THE AO WHICH FOUND MENTIONED IN REASONS RECORDED BY THE AO. (PAGE 19 - 20) WHICH WAS MAINLY RELATED TO BANK ACCOUNT MAI NTAINED BY THE ASSESSEE IN THE NAME OF NAVKAR TRADING COMPANY WITH AXIS BANK , NEW MARINE LINES BRANCH, MUMBAI WHICH WAS FOUND BY REVENUE WHEREIN AN AMOUNT OF RS. 25,87,01,299/ - WAS FOUND CREDITED WITHIN SHORT PERIOD FROM 23.05.2008 TO 18.07.2008 . THE ASSE SSEE WAS FOUND MAINTAINING TWO PAN NUMBERS VIZ. FIRSTLY PAN AADPJ5133E WHICH WAS USED FOR OPENING SAID BANK ACCOUNT WITH AXIS BANK AND SECONDLY PAN AFNPJ6760J WAS USED FOR FILING INCOME TAX RETURN WITH REVENUE. NO INCOME TAX RETURN WAS FILED BY THE ASSESSE E WITH RESPECT TO PAN AAPJ5133E AND INFACT NOTICE DATED 14.12.2011 U/S 142(1) WAS ISSUED BY REVENUE ASKING FOR FILING RETURN OF INCOME UNDER THIS PAN AAPJ5133E(PAGE 19/PB). INFACT IN RESPONSE TO THIS NOTICE U/S 142(1), THE ASSESSEE HAD FILED REVISED RETURN OF INCOME ON 19.12.2011 UNDER PAN AFNPJ6760J(PAGE 4/PB) , WHICH CLEARLY FOUND MENTIONED IN LETTER DATED 19.12.2011 ACCOMPANYING SAID REVISED RETURN OF INCOME(PAGE 2/PB) WHEREIN THE ASSESSEE MENTIONED ABOUT BOTH THE PAN WERE HELD BY IT AND THE ASSESSEE FILED REVISED RETURN OF INCOME ON 19.12.2011 UNDER PAN AFNPJ6760J . I N THE SAID LETTER DATED 19.12.2011 FILED WITH THE AO , THE ASSESSEE HAS WRITTEN ABOUT CANCELLATION OF OTHER PAN AAPJ5133E. THE ASSESSEE VIDE THIS REVISED RETURN OF INCOME FILED ON 19.12.2 011 INCLUDED INCOME FROM NAVKAR TRADING CORPORATION WHEREIN TOTAL INCOME STOOD INCREASED FROM RS. 1,10,850/ - TO RS. 1,62,560/ - . THIS FACT OF INCLUSION OF INCOME OF RS. 51,710/ - FROM NAVKAR TRADING CORPORATION FOUND MENTIONED IN THE SAID LETTER DATED 19.12. 2011 AS THE INCOME STOOD INCREASED FROM RS. 1,10,850/ - TO RS. 1,62,560/ - . THIS LETTER DATED 19.12.2011 IS SIGNED BY ASSESSEES ADVOCATE MR. J G PARMAR. THE ASSESSEE DURING THE COURSE OF REASSESSMENT PROCEEDINGS I.T.A. NO.1127MUM/2018 14 DID NOT ASKED BEFORE THE AO FOR REASONS REC ORDED FOR RE - OPENING OF THE CONCLUDED ASSESSMENT U/S 147 OF THE 1961 ACT AND CONSEQUENTLY THE AO DID NOT SUPPLIED SUCH REASONS FOR REOPENING OF THE CONCLUDED ASSESSMENT TO THE ASSESSEE. THE SAID REASONS FOR REOPENING OF THE CONCLUDED ASSESSMENT U/S 147 WER E LATER SOUGHT BY THE ASSESSEE VIDE LETTERS DATED 27.02.2018 AND 23.05.2018, WHICH WERE SUPPLIED BY REVENUE ON 27.08.2018. THERE IS NO EVIDENCE ON RECORD THAT THE ASSESSEE SOUGHT REASONS FOR REOPENING OF CONCLUDED ASSESSMENT DURING THE COURSE OF REASSESSME NT PROCEEDINGS OR ANY TIME PRIOR TO FILING OF LETTER DATED 27.02.2018. THE ASSESSEE WAS ASKED BY THE AO DURING THE COURSE OF REASSESSMENT PROCEEDINGS TO SUBMIT DETAILS OF ALL DEBIT AND CREDIT ENTRIES AS WERE APPEARING IN THE SAID BANK ACCOUNT OF THE ASSESS EE WITH AXIS BANK , NEW MARINE LINES, MUMBAI BUT THE ASSESSEE DID NOT SUBMIT ANY DETAILS BEFORE THE AO. THE ASSESSEE VIDE LETTER DATED 15.05.2014 FILED BEFORE THE AO DENIED HAVING ANY CONCERN WITH THE SAID BANK ACCOUNT AS WELL WITH THE SAID CONCERN M/S NAV KAR TRADING COMPANY. THE ASSESSEE STATED BEFORE THE AO THAT IT IS NOT IN A POSITION TO FURNISH ANY INFORMATION OTHER THAN STATING THAT AS THE AMOUNT IS RETURNED BACK TO THE SAID PARTY AFTER CHEQUE DISCOUNTING AND THE BANK ACCOUNT IS CLOSED. THE AO CALLED I NFORMATION FROM AXIS BANK DIRECTLY AND IT WAS OBSERVED BY THE AO THAT CBI HAD ALSO CONDUCTED AN ENQUIRY WITH RESPECT TO THIS BANK ACCOUNT MAINTAINED WITH AXIS BANK IN CONNECTION WITH THE FRAUDULENT OVERDRAFT TRANSACTIONS FROM CANARA BANK, KHAR WEST BRANCH , MUMBAI. THE AO SOUGHT INFORMATION FROM CBI WHO FORWARDED COPY OF STATEMENT RECORDED OF THE ASSESSEE ON 31.01.2011 BEFORE THE CBI. THE SAID STATEMENT IS PLACED IN PAPER BOOK FILED BY THE ASSESSEE AT PAGE 22 - 23. THE AO OBSERVED FROM THE SAID STATEMENT THA T THE ASSESSEE HAD STATED THAT ON THE ADVICE FROM HI S MATERNAL BROTHER SHRI RAJENDRA JAIN , WHO IS INVOLVED IN DIAMOND BROKERAGE, AN BANK ACCOUNT WAS OPENED IN THE NAME OF M/S NAVKAR TRADING COMPANY WITH AXIS BANK, NEW MARINE LINES, MUMBAI WHICH WAS TO BE OPERATED BY SHRI RAJESH PAMECHA, WHO WORKS IN THE DIAMOND MARKET FOR CHEQUE DISCOUNT WORK. IT IS PERTINENT TO MENTION HERE THAT IN I.T.A. NO.1127MUM/2018 15 THE SAID STATEMENT OF THE ASSESSEE RECORDED BEFORE CBI ON 31.01.2011 THERE IS MENTION OF TWO BANK ACCOUNTS OPENED IN THE NAM E OF NAVKAR TRADING COMPANY BY THE ASSESSEE , FIRSTLY AT ICICI BANK, GIRGAON, MUMBAI AND SECOND LY AT AXIS BANK, NEW MARINE LINES , MUMBAI , WHEREIN BOTH THE SE BANK ACCOUNTS WERE OPENED BY THE ASSESSEE PURPORTEDLY ON THE ADVISE OF HIS MATERNAL BROTHER MR R AJENDRA JAIN TO BE OPERATED BY MR RAJESH PAMECHA. INCIDENTALLY, T HE AFORESAID OTHER BANK ACCOUNT WITH ICICI BANK, GIRGAON , MUMBAI OPENED BY THE ASSESSEE WAS NOT SUBJECTED TO INVESTIGATION BY REVENUE AS NO DETAILS ARE EMERGING ABOUT THE FINANCIAL TRANSACTI ONS IN THE SAID BANK ACCOUNT FROM THE MATERIAL PLACED BEFORE US . IT WAS AFFIRMED BY THE ASSESSEE IN THE SAID STATEMENT RECORDED BEFORE CBI THAT THE ASSESSEE WAS PROMISED 1% BROKERAGE ON EVERY CHEQUE AND ACCORDINGLY ASSESSEE CLAIMED TO HAVE SIGNED CHEQUE B OOK OF BOTH THE SE ACCOUNT OPENED WITH ICICI BANK, GIRGAON, MUMBAI AND AXIS BANK, NEW MARINE LINES BRANCH , MUMBAI WHICH WERE HANDED OVER TO SHRI RAJESH PAMECHA THROUGH SHRI RAJENDRA JAIN. THE AO OBSERVED THAT THE ASSESSEE IS CHANGING ITS STAND TIME AND AGAIN. THE ASSESSEE HAD ALSO FILED REVISED RETURN OF INCOME WITH REVENUE ON 19.12.2011 IN PURSUANCE TO NOTICE DATED 14.12.2011 ISSUED BY THE AO U/S 142(1) , AFTER THE AO RECEIVED THE INFORMATION FROM ACIT, CIRCLE 23(3),MUMBAI , WHEREIN THE ASSESSEE STATED THE NATURE OF ITS BUSINESS AS FROM M/S NAVKAR AND GRIH UDYOG ETC. AND THE ASSESSEE INCREASED ITS I NCOME BY AN AMOUNT OF RS. 51,710 / - FROM NAVKAR TRADING COMPANY . THE AO OBSERVED THAT FROM THE DATE OF FILING OF REVISED RETURN OF INCOME ON 19.12.2011 , THE ASSESSEE HAD ADMITTED TO BE THE OWNER OF THE BANK ACCOUNT WITH AXIS BANK, NEW MARINE LINES, MUMBAI. THE ASSESSEE FILED ALSO D ECLARATION ON 19.12.2011 WITH AO STATING HE WAS NOT HAVING ANY MALAFIDE INTENTION TO DO BUSINESS IN THE NAME OF M/S NAVKAR TRADING COMPANY. IT WAS STATED IN SAID DECLARATION ( WHICH IS PLACED IN PAPER BOOK/PAGE 3 ) THAT THE ASSESSE WAS LURED BY HIS COUSIN T O CLEAR FINANCIAL CRISIS.THE ASSESSEE CLAIMED IN SAID DECLARATION DATED 19.12.2011 THAT THE ASSESSEE IS MIDDLE CLASS PERSON WHO WAS MISGUIDED AND MISTRUSTED BY HIS NEAREST PERSON AND WAS NOT I.T.A. NO.1127MUM/2018 16 HAVING ANY WRONG TRACK IN LIFE. THE SAID DECLARATION IS PLACED IN PAPER BOOK/PAGE 3. THE ASSESSEE DURING THE COURSE OF REASSESSMENT PROCEEDINGS BEFORE THE AO KEPT ON STATING THAT HE DOES NOT HAVE ANY INFORMATION WITH RESPECT TO NAVKAR TRADING COMPANY. A SWORN STATEMENT U/S 131 OF THE 1961 ACT WAS RECORDED BY THE AO ON 15.12.2014 OF THE ASSESSEE, WHEREIN THE ASSESSEE STATED THAT IT WOULD RECEIVE COMMISSION OF 0.02% ONLY OF THE TRANSACTIONS IN THE SAID BANK ACCOUNT.THE SAID STATEMENT IS PLACED IN PAPER BOOK/PAGE 24 - 25.THE A O ALSO OBSERVED THAT BEFORE CBI , THE ASSESSEE AD MITTED TO HAVING RECEIVED COMMISSION @1% WHILE AGAIN THE ASSESSEE IS C HANGING ITS STAND THAT HE RECEI VED COMMISSION @0.02% WHICH WAS DESCRIBED BY AO AS AFTER T HOUGHT TO REDUCE HIS LIABILITY. THE ASSESSEE WAS ASKED BY THE AO DURING REASSESSMENT PROCEEDINGS TO PROVIDE COMPLETE DETAILS OF MR RAJESH PAMECHA BY THE AO , TO WHICH THE ASSESSEE PROVIDED DECLARATION OF SHRI RAJESH PAMECHA ONLY AT THE FAG END I.E. 23 - 03 - 2015 WHEN THE ASSESSMENT WAS GETTING TIME BARRED AND THE AO ALSO OBSERVED THAT THE SAID DECLARATIO N IS IN THE FORM OF LETTER WRITTEN ON PLAIN PAPER.IN THE SAID DECLARATION SAID MR RAJESH PAMECHA STATED THAT THE ASSESSEE IS NOT CONCERNED WITH THE BANKING TRANSACTIONS IN THE SAID BANK ACCOUNT MAINTAINED WITH AXIS BANK LIMITED IN THE NAME OF NAVKAR TRADIN G COMPANY. THE SAID DECLARATION IS PLACED IN PAPER BOOK/PAGE 27. THE AO IN ORDER TO VERIFY THE AUTHENTICITY OF THE SAID DECLARATION AND PERSON MAKING IT , ISSUED SUMMONS U/S 131 OF THE 1961 ACT AND SERVED BY AFFIXTURE TO SHRI RAJESH PAMECHA AT THE ADDRESS PROVIDED BY THE ASSESSEE BUT THERE WAS NO COMPLIANCE BY SAID SHRI RAJESH PAMECHA TO SAID SUMMONS. THUS, THE AO WAS UNABLE TO VERIFY THE VERACITY OF DECLARATION PURPORTEDLY EXECUTED BY MR RAJESH PAMECHA.THE AO WAS OF THE VIEW THAT THE ASSESSEE HAS NOT BEEN ABLE TO DISCHARGE ITS ONUS OF PROVING THE DEBIT AND CREDIT ENTRIES ARE APPEARING IN BANK ACCOUNT OF NAVKAR TRADING COMPANY OF WHICH THE ASSESSEE IS PROPRIETOR MAINTAINED WITH AXIS BANK, NEW MARINE LINES, MUMBAI NOR SOURCES OR DESTINATION OF SUCH FUNDS WAS ESTABLISHED. THE AO CONCLUDE D THAT THE ASSESSEE IS NOT ABLE TO OFFER PLAUSIBLE EXPLANATION TO THE SOURCES OF THE I.T.A. NO.1127MUM/2018 17 AMOUNT FOUND CREDITED TO THE BANK ACCOUNT AMOUNTING TO RS. 25,87,01,299/ - WHICH WERE TREATED BY THE AO AS AN UNEXPLAINED CASH CREDIT AND ADDE D BACK TO THE INCOME OF THE ASSESSEE VIDE ASSESSMENT ORDER DATED 28.03.2015 PASSED BY THE AO U/S 143(3) R.W.S. 147 OF THE 1961 ACT. IN ALTERNATIVE WITHOUT PREJUDICE TO THE ABOVE ADDITIONS, THE AO MADE AN ADDITION ON PROTECTIVE BASIS OF RS. 25,87,013/ - BEIN G 1% COMMISSION ON THE AMOUNT FOUND CREDITED IN AXIS BANK, NEW MARINE LINES, MUMBAI , IN CASE THE ASSESSEE IS ABLE TO PROVE THE SOURCES AND DESTINATION OF AMOUNT FOUND DEBITED AND CREDITED IN THE SAID AXIS BANK ACCOUNT. THE ASSESSEE FILED FIRST APPEAL BEFO RE LEARNED CIT(A) WHICH WAS DECIDED EXPARTE AGAINST ASSESSEE B OTH LEGAL AS WELL ON MERITS, THUS IN NUTSHELL LEARNED CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. AS WE HAVE SEEN IN PRECEDING PARAS OF THIS ORDER , THE MAIN LINE OF ARGUMENTS OF THE ASSESSEE WAS THAT HE DID NOT GET THE NOTICES ISSUED BY LEARNED CIT(A) AS HIS ADVOCATE MR J G PARMAR DID NOT HANDED OVER THE NOTICES TO THE ASSESSEE WHICH LED TO HIS NON APPEARANCES BEFORE THE LEARNED CIT(A). THE ASSESSEE HAD GIVEN THE ADDRESS OF SAID ADVOCATE AS HI S COMMUNICATION ADDRESS BEFORE REVENUE AUTHORITIES AS THE ASSESSEE HAS CLAIMED THAT HE WAS OPERATING FROM SAID PREMISES OF THE ADVOCATE . THE ASSESSEE HAS FILED AN AFFIDAVIT DATED 19 - 07 - 2018 TO THAT EFFECT EXPLAINING THE SEQUENCE OF EVENTS AS HAPPENED DURIN G THE COURSE OF HEARINGS BEFORE LEARNED CIT(A) LEADING TO HIS NON APPEARANCE , WHICH IS DISCUSSED IN PRECEDING PARAS OF THIS ORDER IN DETAIL . THE SAID AFFIDAVIT IS PLACED IN FILE. THE ASSESSEE HAS ALSO PRODUCED CERTAIN ADDITIONAL EVIDENCES AND CLAIM IS MAD E THAT SINCE PROPER OPPORTUNITY WAS NOT PROVIDED TO THE ASSESSEE, THE ISSUE MAY BE RESTORED TO THE FILE OF THE LEARNED CIT(A) SO THAT THE ASSESSEE CAN EXPLAIN ITS CASE IN PROPER PERSPECTIVE WITH COGENT EVIDENCES AND THEREAFTER LEARNED CIT(A) CAN PASS FRES H APPELLATE ORDER IN ACCORDANCE WITH LAW ON MERITS AFTER CONSIDERING THE CONTENTIONS OF THE ASSESSEE. THE SAME LINE OF ARGUMENTS WAS ADVANCED BY THE ASSESSEE BEFORE THE BENCH OF THE TRIBUNAL WHO HEARD AN EARLY HEARING APPLICAT I O N OF THE ASSESSEE ON 27 - 07 - 2 018 WHEREIN IT IS PRAYED BY LEARNED COUNSEL FOR THE ASSESSEE THAT THE I.T.A. NO.1127MUM/2018 18 ASSESSEE HAS A STRONG CASE FOR RESTORATION OF ISSUES BEFORE LEARNED CIT(A), WHICH REQUEST WAS ACCEDED TO BY THE BENCH HEARING EARLY HEARING APPLICATION FILED BY THE ASSESSEE. IT IS NOT D ENIED BY THE ASSESSEE THAT SHRI J G PARMAR WAS HIS ADVOCATE. IT IS THE ASSESSEE WHO HAS FURNISHED THE ADDRESS OF THE ADVOCATE MR J G PARMAR BEFORE REVENUE INCLUDING LEARNED CIT(A) FOR COMMUNICATION PURPOSES AS ALSO IT IS ADMITTED BY THE ASSESSEE THAT SAID ADDRESS OF MR J G PARMAR, ADVOCATE WAS USED BY THE ASSESSEE FOR HIS OPERATIONS ALSO . THE REVENUE CANNOT BE FAULTED IF THE ASSESSEE HAS NOT RECEIVED NOTICES OF HEARING OF APPEAL ISSUED BY LEARNED CIT(A) AND IT IS THE ASSESSEE WHO IS TO BE BLAMED FOR ITS W OES. THE LEARNED COUNSEL FOR THE ASSESSEE HAS CONCEDED AND PRAYED THAT THE ISSUES UNDER APPEAL MAY BE RESTORED TO THE FILE OF LEARNED CIT(A) FOR GRANTING ONE MORE OPPORTUNITY AS HIGH PITCHED ASSESSMENT IS FRAMED AGAINST THE ASSESSEE AND THE ASSESSEE OWING TO FAULT OF HIS OWN ADVOCATE DID NOT GOT OPPORTUNITY TO PRESENT ITS CASE BEFORE LEARNED CIT(A) WHILE OTHERWISE IT HAS A STRONG CASE AND REQUEST IS MADE TO TAKE LIBERAL VIEW IN THE INTEREST OF JUSTICE. THE AMOUNTS ARE FOUND CREDITED IN THE BANK ACCOUNT MAI NTAINED BY NAVKAR TRADING COMPANY OF WHICH THE ASSESSEE HAS ADMITTED TO BE PROPRIETOR AND THE ONUS/BURDEN IS ON THE ASSESSEE TO EXPLAIN THE SOURCES OF CREDIT IN SAID BANK ACCOUNT WITH COGENT EVIDENCES TO SATISFY THE MANDATE OF PROVISIONS OF THE 1961 ACT. T HE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT V. D.K.GARG(SUPRA) IS RELEVANT, THE OPERATING PART OF THE SAID DECISION IS REPRODUCED HEREUNDER: 13. THERE HAVE BEEN NUMEROUS CASES BEFORE THE AO, CIT (A), THE ITAT AND FOR THAT MATTER EVEN BEFORE THIS COURT, WHERE THE QUESTION INVOLVED CONCERNS THE TREATMENT OF 'ACCOMMODATION ENTRIES'. BASICALLY, WHAT AN ACCOMMODATION ENTRY PROVIDER DOES IS TO ACCEPT CASH FROM AN ASSESSEE AND ARRANGES TO HAVE A CHEQUE ISSUED FROM HIS OWN ACCOUNT OR SOME OTHE R ACCOUNT, USUALLY OF 'PAPER' OR FAKE ENTITIES, TO MAKE IT APPEAR TO BE A LOAN OR AN INVESTMENT IN SHARE CAPITAL. THE ACCOMMODATION ENTRY PROVIDER USUALLY CHARGES A COMMISSION WHICH IS DEDUCTED UPFRONT. WHERE THE ASSESSEE IS UNABLE TO EXPLAIN THE SOURCE OF SUCH CREDIT IN HIS ACCOUNT - I.E. BY DEMONSTRATING THE IDENTITY OF THE PROVIDER OF THE CREDIT, THE CREDITWORTHINESS OF SUCH ENTITY, AND THE GENUINENESS OF THE TRANSACTION - THE CREDIT ENTRY IS TREATED AS UNEXPLAINED AND THE INCOME IS TREATED UNDER SECTION 68 OF THE ACT AS THE INCOME OF THE ASSESSEE. I.T.A. NO.1127MUM/2018 19 14. IN CASES WHERE THE ASSESSEE DISCHARGES THE INITIAL ONUS OF ESTABLISHING THE IDENTITY AND CREDITWORTHINESS OF THE CREDIT PROVIDER AND THE GENUINENESS OF THE TRANSACTION, BE IT ONE OF LOAN OR SUBSCRIBING TO S HARE CAPITAL, THE ONUS SHIFTS TO THE REVENUE TO SHOW THE CONTRARY. WHERE, FOR INSTANCE, AN ASSESSEE FURNISHES THE COMPLETE DETAILS OF THE ENTITY LIKE ITS CERTIFICATE OF INCORPORATION, PAN NUMBER, INCOME TAX RETURNS, BANK ACCOUNTS, NAMES AND ADDRESSES OF TH E DIRECTORS AND SO ON, THE COURTS HAVE INSISTED ON THE AO TO MAKE A PROPER ENQUIRY TO EXAMINE THE IDENTITY AND CREDITWORTHINESS OF SUCH COMPANIES AND THE GENUINENESS OF THE TRANSACTIONS IN QUESTION. WHERE THE AO FAILS TO MAKE SUCH AN ENQUIRY, A COURT MIGHT DELETE THE ADDITIONS MADE BY THE AO. 15. THE PRESENT CASE, HOWEVER, IS OF A DIFFERENT NATURE. HERE, WE ARE DEALING WITH AN ASSESSEE WHO DOES NOT DENY THAT HE IS AN ACCOMMODATION ENTRY PROVIDER. HE, IN FACT, MAKES NO BONES OF THE FACT THAT HE EITHER OWNED OR FLOATED 'PAPER COMPANIES' ONLY FOR THAT PURPOSE. HE ALSO DOES NOT DISPUTE THE FACT THAT HE HAS NOT BEEN ABLE TO EXPLAIN THE SOURCE OF ALL THE DEPOSITS IN HIS ACCOUNTS OR THE ULTIMATE DESTINATION OF ALL THE OUTGO FROM HIS ACCOUNTS. 16. THE ASSESSEE'S PLE A THAT HE SHOULD BE TAXED ONLY ON A COMPOSITE 'PEAK CREDIT' IS BASED ENTIRELY ON PRINCIPLES OF ACCOUNTANCY. HE QUESTIONS THE LOGIC BEHIND ALLOWING PEAK CREDITS FOR SOME OF THE CREDIT ENTRIES BY WAY OF CHEQUES AND DENYING IT FOR THE OTHER ENTRIES IN CASH. H E ALSO QUESTIONS THE PRACTICE OF WORKING OUT SEPARATE PEAK CREDITS FOR CHEQUE AND CASH TRANSACTIONS. 17. THE PREMISE UNDERLYING THE CONCEPT OF PEAK CREDIT IS THE SQUARING UP OF THE DEPOSITS IN THE ACCOUNT WITH THE CORRESPONDING PAYMENTS OUT OF THE ACCOUNT TO THE SAME PERSON. IN BHAIYALAL SHYAM BIHARI CASE ( SUPRA ), THE ALLAHABAD HIGH COURT EXPLAINED THAT BENEFIT OF PEAK CAN BE GIVEN ONLY WHEN THE ASSESSEE OWNS UP ALL THE CASH CREDITS IN THE BOOKS OF ACCOUNTS. IT WAS FURTHER HELD: 'FOR ADJUDICATING UPON THE P LEA OF PEAK CREDIT THE FACTUAL FOUNDATION HAS TO BE LAID BY THE ASSESSEE. HE HAS TO OWN ALL CASH CREDIT ENTRIES IN THE BOOKS OF ACCOUNT AND ONLY THEREAFTER CAN THE QUESTION OF PEAK CREDIT BE RAISED.' 18. IN THAT CASE, IT WAS HELD THAT AS THE AMOUNT OF CASH CREDITS STOOD IN THE NAMES OF DIFFERENT PERSONS WHICH THE ASSESSEE HAD ALL ALONG BEEN CLAIMING TO BE GENUINE DEPOSITS, WITHDRAWALS/PAYMENTS TO DIFFERENT PERSONS DURING THE PREVIOUS YEARS, THE ASSESSEE WAS, THEREFORE, NOT ENTITLED TO CLAIM THE BENEFIT OF P EAK CREDIT. LATER IN VIJAY AGRICULTURAL INDUSTRIES CASE ( SUPRA ), IT WAS REITERATED THAT: 'THE PRINCIPLE OF PEAK CREDIT IS NOT APPLICABLE IN CASE WHERE THE DEPOSITS REMAINED UNEXPLAINED UNDER SECTION 68 OF THE ACT. IT CANNOT APPLY IN A CASE OF DIFFERENT DEP OSITORS WHERE THERE HAS BEEN NO TRANSACTION OF DEPOSITS AND REPAYMENT BETWEEN A PARTICULAR DEPOSITOR AND THE ASSESSEE.' ON THE FACTS OF THAT CASE IT WAS HELD THAT PEAK CREDIT COULD BE APPLIED ONLY IN THE CASE OF SQUARED UP ACCOUNTS. IN OTHER WORDS, WHERE A N ASSESSEE WAS UNABLE TO EXPLAIN THE SOURCES OF DEPOSITS AND THE CORRESPONDING PAYMENTS THEN HE WOULD NOT GET THE BENEFIT OF 'PEAK CREDIT'. 19. THE LEGAL POSITION IN RESPECT OF AN ACCOMMODATION ENTRY PROVIDER SEEKING THE BENEFIT OF 'PEAK CREDIT' APPEARS TO HAVE BEEN TOTALLY OVERLOOKED BY THE ITAT IN THE PRESENT CASE. INDEED, IF THE ASSESSEE AS A SELF - CONFESSED ACCOMMODATION ENTRY PROVIDER WANTED TO AVAIL THE BENEFIT OF THE 'PEAK CREDIT', I.T.A. NO.1127MUM/2018 20 HE HAD TO MAKE A CLEAN BREAST OF ALL THE FACTS WITHIN HIS KNOWLEDGE CO NCERNING THE CREDIT ENTRIES IN THE ACCOUNTS. HE HAS TO EXPLAIN WITH SUFFICIENT DETAIL THE SOURCE OF ALL THE DEPOSITS IN HIS ACCOUNTS AS WELL AS THE CORRESPONDING DESTINATION OF ALL PAYMENTS FROM THE ACCOUNTS. THE ASSESSEE SHOULD BE ABLE TO SHOW THAT MONEY HAS BEEN TRANSFERRED THROUGH BANKING CHANNELS FROM THE BANK ACCOUNT OF CREDITORS TO THE BANK ACCOUNT OF THE ASSESSEE, THE IDENTITY OF THE CREDITORS AND THAT THE MONEY PAID FROM THE ACCOUNTS OF THE ASSESSEE HAS RETURNED TO THE BANK ACCOUNTS OF THE CREDITORS . THE ASSESSEE HAS TO DISCHARGE THE PRIMARY ONUS OF DISCLOSURE IN THIS REGARD. 20. WHILE THE AO IN THE PRESENT CASE DID NOT QUESTION THE WORKING OUT OF THE PEAK CREDIT BY THE ASSESSEE, HE, AT THE SAME TIME, INSISTED THAT THE ADDITIONS MADE BY HIM TO THE RE TURNED INCOME OF THE ASSESSEE SHOULD BE SUSTAINED. THE PEAK CREDIT WORKED OUT BY THE ASSESSEE WAS ON THE BASIS THAT THE PRINCIPLE OF PEAK CREDIT WOULD APPLY, NOTWITHSTANDING THE FAILURE OF THE ASSESSEE TO EXPLAIN EACH OF THE SOURCES OF THE DEPOSITS AND THE CORRESPONDING DESTINATION OF THE PAYMENT WITHOUT SQUARING THEM OFF. THAT IS NOT PERMISSIBLE IN LAW AS EXPLAINED BY THE ALLAHABAD HIGH COURT IN THE AFOREMENTIONED DECISIONS WHICH, THIS COURT CONCURS WITH. CONCLUSION 21. AS ALREADY NOTED, THE ITAT WENT MERE LY ON THE BASIS OF ACCOUNTANCY, OVERLOOKING THE SETTLED LEGAL POSITION THAT PEAK CREDIT IS NOT APPLICABLE WHERE DEPOSITS REMAIN UNEXPLAINED UNDER SECTION 68 OF THE ACT. THE QUESTION OF LAW FRAMED BY THIS COURT, IS ACCORDINGLY, ANSWERED IN THE NEGATIVE I.E. IN FAVOUR OF THE REVENUE AND AGAINST THE ASSESSEE. THE IMPUGNED ORDER OF ITAT IS, ACCORDINGLY, SET ASIDE AND THE ORDER OF THE AO IS RESTORED TO FILE. 22. THE APPEAL IS ALLOWED IN THE ABOVE TERMS WITH NO ORDER AS TO COSTS. THUS, KEEPING IN VIEW THE EN TIRE FACTUAL MATRIX OF THE CASE IN THE LIGHT OF OUR OBSERVATIONS /COMMENTS IN THIS ORDER AND ALSO KEEPING IN VIEW HIGH PITCHED ASSESSMENT FRAMED AGAINST THE ASSESSEE , WE ARE RESTORING ALL THE ISSUES ARISING IN THIS APPEAL TO THE FILE OF LEARNED CIT(A) FOR F RESH ADJUDICATION OF THESE ISSUES AFTER CONSIDERING CONTENTIONS/ EXPLANATIONS OF THE ASSESSEE ON MERITS IN ACCORDANCE WITH LAW. THE ASSESSEE IN THE INTEREST OF JUSTICE WILL BE ALLOWED TO FILE ALL RELEVANT EXPLANATIONS/EVIDENCES TO SUPPORT ITS CONTENTIONS I N ITS DEFENCE WHICH WILL BE ADJUDICATED BY THE LEARNE D CIT(A) ON MERITS IN ACCORDANCE WITH LAW . THE LEARNED CIT(A) SHALL PROVIDE PROPER AND ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH PRINCIPLES OF NATURAL JUSTICE IN ACCORDANCE W ITH LAW . NEEDLESS TO SAY THAT POWERS OF LEARNED CIT(A) ARE WIDE WHICH ARE CO - TERMINUS WITH POWERS OF THE AO INCLUDING I.T.A. NO.1127MUM/2018 21 POWER OF ENHANCEMENT (SECTION 251(1)(A) OF THE 1961 ACT) . WITH THE OBSERVATIONS AND COMMENTS AS ARE CONTAINED IN THIS ORDER AS ABOVE, T HE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. WE ORDER ACCORDINGLY. 7 . IN THE RESULT APPEAL FILED BY THE ASSESSEE IN ITA NO. 1127/MUM/2018 FOR AY 2009 - 10 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 2 8 .1 1 .2018. 2 8 .1 1 .2018 S D / - S D / - (MAHAVIR SINGH) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 2 8 .11 .2018 NISHANT VERMA SR. PRIVATE SECRETARY COPY TO 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) CONCERNED, MUMBAI 4 . THE CIT - CONCERNED, MUMBAI 5 . THE DR BENCH, 6 . MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI