ASST CIT CC 43, MUMBAI V. CHANDBIBI ZAIDI, MUMBAI

ITA 1393/MUM/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3324 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2016
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 28-02-2014
• Court: TRIBUNAL
• Department Lawyers: M DAYASAGAR
• Keywords: Gift; Rectification of order; Search and seizure; Salary income; Charitable institution; Deemed to accrue or arise in india; Additional evidence
• Section: 143(3); 142(1); 153A; 234B; 133(6); 132; 154; 15

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAJENDRA, ACCOUNTANT MEMBER ITA NOS.358 TO 363/MUM/2014 ASSESSMENT YEAR: 2005-06 TO 2010-11 MRS. CHANDBIBI ZAIDI, KENNEDY HOUSE, 4TH FLOOR, GOREGAONKAR ROAD, MUMBAI-400007 / VS. ACIT, CENTRAL CIRCLE-43, R. NO.659, 6 TH FLOOR, AAYAKAR BAHVAN, M.K. ROAD, MUMBAI-400020 ( ! /ASSESSEE) ( ' / REVENUE) PAN. NO.AAAPZ1431A CHANDBIBI ZAIDI ITA NO.358 TO 363/MUM/2014 & ITA NO.1393 TO 1398/MUM/2014 2 ITA NOS.1393 TO 1398/MUM/2014 ASSESSMENT YEAR: 2005-06 TO 2010-11 ACIT, CENTRAL CIRCLE-43, R. NO.659, 6 TH FLOOR, AAYAKAR BAHVAN, M.K. ROAD, MUMBAI-400020 / VS. MRS. CHANDBIBI ZAIDI, KENNEDY HOUSE, 4 TH FLOOR, GOREGAONKAR ROAD, MUMBAI-400007 ( ' / REVENUE) ( ! /ASSESSEE) PAN. NO. AAAPZ1431A ' / REVENUE BY SHRI M.DAYASAGAR CIT-DR ! / ASSESSEE BY SHRI N.R. AGRAWAL # '$ % ! & / DATE OF HEARING : 30/05/2016 % ! & / DATE OF ORDER: 14/06/2016 / O R D E R PER BENCH THIS BUNCH OF TWELVE APPEALS IS BY THE ASSESSEE AS WELL AS THE REVENUE FOR ASSESSMENT YEARS 2005-06 TO 2010 -11 AGAINST THE IMPUGNED ORDERS ALL DATED 20/12/2013 OF THE LD. FIRST APPELLATE AUTHORITY, MUMBAI. 2. DURING HEARING OF THESE APPEALS, THE LD. COUNSE L FOR THE ASSESSEE, SHRI N. R. AGARWAL, CLAIMED THAT THE IMPUGNED CHANDBIBI ZAIDI ITA NO.358 TO 363/MUM/2014 & ITA NO.1393 TO 1398/MUM/2014 3 ISSUES ARE COVERED BY THE DECISION OF THE TRIBUNAL DATED 05/02/2016, IN THE CASE OF ASSESSEE ITSELF, (ITA NO .357 & 1392/MUM/2014) FOR ASSESSMENT YEAR 2004-05. IT WAS ALSO CLAIMED THAT IDENTICAL ISSUES ARE AVAILABLE IN THE PRESENT APPEALS ALSO. THIS ASSERTION OF THE ASSESSEE WAS CO NSENTED TO BE CORRECT BY SHRI M. DAYASAGAR, LD. CIT-DR. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. SO FAR AS , THE ISSUE OF REPAIRS TO KENNEDY HOUSE FOR ASSESSMENT YEAR 200 5-06 AND 2006-07 IS CONCERNED, WE FIND THAT THIS ISSUE HAS B EEN DECIDED BY THE TRIBUNAL, ORDER DATED 05/02/2016, AS IS EVIDENT FROM PARA 2.3 OF THE ORDER, WHICH IS REPROD UCED HEREUNDER FOR READY REFERENCE AND ANALYSIS:- THE ASSESSEE AS WELL AS THE REVENUE IS IN CROSS AP PEALS FOR ASSESSMENT YEAR 2004-05 AGAINST THE IMPUGNED ORDER DATED 20/12/2013 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. FIRST, WE SHALL TAKE UP APPEAL OF THE ASSESSEE (ITA NO.357/MU M/2014), WHEREIN, FIRST GROUND PERTAINS TO ADDITION OF RS.38 ,50,000/- ON ACCOUNT OF REPAIRS TO KENNEDY HOUSE BY THE TRUST. 2. THE CRUX OF ARGUMENT ADVANCED BY SHRI N.R. AGAR WAL, LD. COUNSEL FOR THE ASSESSEE, IS THAT THE ASSESSEE IS THE PRESIDENT OF CHANDBIBI ZAIDI ITA NO.358 TO 363/MUM/2014 & ITA NO.1393 TO 1398/MUM/2014 4 TWO LABOUR UNIONS AND ALSO TRUSTEE IN A CHARITABLE TRUST NAMELY FREE TRADE UNION MULTIPURPOSE TRUST BY CONTENDING THAT T HE REPAIR WAS DONE BY THE TRUST OF THE UNION BUILDING AND PAYMENT FOR REPAIRS WAS MADE BY THE TRUST ONLY. THE BUILDING WAS EXPLAINED TO BE OF FOUR FLOORS AND THE CONTRACTOR WHO CARRIED OUT THE REPAI R WAS ALSO SEARCHED, HIS STATEMENT WAS RECORDED, WHEREIN, HE N OWHERE SAYS THAT REPAIR WAS NOT CARRIED OUT BY HIM OR HE RETURN ED THE MONEY TO THE ASSESSEE. IT WAS EXPLAINED THAT THE FIGURES BRO ADLY TALLIES. OUR ATTENTION WAS INVITED TO PAGES 26 & 27 OF THE PAPE R BOOK. AGAIN THE STATEMENT WAS RECORDED FOR WHICH OUR ATTENTION WAS INVITED TO PAGES 41 AND 47 OF THE PAPER BOOK. AGAIN, THE STATE MENT WAS RECORDED THIRD TIME FOR WHICH OUR ATTENTION WAS INV ITED TO PAGE 29 OF THE PAPER BOOK. IT WAS EMPATHETICALLY ASSERTED THAT EVEN IF THE PAYMENTS ARE HELD TO BE BOGUS, HOW IT CAN BE THE IN COME OF THE ASSESSEE. IF FOUND OTHERWISE, IT MAY BE OF THE TRUS T BUT NOT OF THE ASSESSEE. THE PAYMENTS WERE CLAIMED TO BE MADE BY CHEQUE. MR. AGRAWAL CONTENDED THAT THE ASSESSEE ASKED FOR CROSS EXAMINATION BUT THE SAME WAS DENIED TO THE ASSESSEE, FOR WHICH OUR ATTENTION WAS INVITED TO PAGE 9 OF THE PAPER BOOK. IT WAS CL AIMED THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) CALLED FOR REM AND REPORT FROM THE ASSESSING OFFICER AND AT THAT TIME ALSO CR OSS EXAMINATION WAS NOT ALLOWED, HOWEVER, THE STATEMENT WAS CLAIMED TO BE IN FAVOUR OF THE ASSESSEE. IT WAS EXPLAINED THAT PROTE CTIVE ADDITION HAS BEEN MADE IN THE CASE OF THE ASSESSEE. OUR ATTENTI ON WAS ALSO INVITED TO PAGE 38 OF THE ORDER OF THE LD. COMMISSI ONER OF INCOME TAX (APPEALS). 2.1. ON THE OTHER HAND, THE LD. DR, SHRI M. DAYASA GAR, DEFENDED THE CONCLUSION ARRIVED AT IN THE IMPUGNED ORDER BY CHANDBIBI ZAIDI ITA NO.358 TO 363/MUM/2014 & ITA NO.1393 TO 1398/MUM/2014 5 DEFENDING THE CONCLUSION ARRIVED AT BY THE LD. FIRS T APPELLATE AUTHORITY. 2.2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IF THE OBSERVATI ON MADE IN THE ASSESSMENT ORDER, LEADING TO ADDITION MADE TO THE T OTAL INCOME, CONCLUSION DRAWN IN THE IMPUGNED ORDER, MATERIAL AV AILABLE ON RECORD, ASSERTIONS MADE BY THE LD. RESPECTIVE COUNS EL, IF KEPT IN JUXTAPOSITION AND ANALYZED, WE NOTE THAT THE ASSESS EE IS THE PRESIDENT OF TWO TRADE UNIONS NAMELY MUMBAI MAJDOOR SABHA (MMS) AND ENGINEERING MAJDOOR SABH (EMS). THE ASSES SEE IS ALSO THE MANAGING TRUSTEE OF FREE TRADE UNION MULTIPURPO SE TRUST (FTUMPT), A PUBLIC CHARITABLE TRUST, CLOSELY ASSOCI ATED WITH THE AFORESAID TRADE UNIONS. SEARCH AND SEIZURE ACTION U/S 132 (1) OF THE ACT WAS CARRIED OUT IN CHANDBIBI ZAIDI GROUP OF CAS ES ON 20/08/2009 AND ON SUBSEQUENT DATES BY THE DDIT(INVE STIGATION UNIT), MUMBAI. SUBSEQUENTLY, NOTICE U/S 153A OF THE ACT WAS SERVED UPON THE ASSESSEE TO WHICH THE ASSESSEE DECLARED LO SS OF RS.57,88,980/- ON 09/07/2010. THEREAFTER, NOTICES U/S 143(2) AND 142(1) WERE ISSUED ON DIFFERENT DATES ASKING THE AS SESSEE TO FILE CERTAIN DETAILS, CLARIFICATION ETC. THE ASSESSEE AT TENDED THE ASSESSMENT PROCEEDINGS FROM TIME TO TIME AND FURNIS HED THE DETAILS AS IS EVIDENT FROM PARA 2 (PAG-1) OF THE ASSESSMENT ORDER ITSELF. THE LD. ASSESSING OFFICER MADE ADDITION OF RS.38,5 0,000/- WITH RESPECT TO REPAIRS MADE IN THE TRADE UNION BUILDING NAMELY KENEDDY HOUSE AND THE TRUST CLAIMED TO HAVE MADE THE PAYMENTS TO THE CONTRACTOR FOR SUCH REPAIRS. THE LD. ASSESSI NG OFFICER HELD THE CLAIMED REPAIRS TO BE BOGUS/NON-EXISTENT AND THUS, HE MADE THE ADDITION. THE LD. ASSESSING OFFICER WAS OF THE VIEW THAT NO SUCH CHANDBIBI ZAIDI ITA NO.358 TO 363/MUM/2014 & ITA NO.1393 TO 1398/MUM/2014 6 REPAIRS WERE CARRIED OUT. THE STATEMENT OF THE CONT RACTOR, MR. SHANKAR GADDAM, WAS RECORDED ON 20/08/2009 (PAGES 2 3 TO 28 OF THE PAPER BOOK), WHEREIN, IN REPLY TO QUESTION NO. 8 OF THE STATEMENT (PAGE 26 OF THE PAPER BOOK) WITH RESPECT TO RECEIPT OF PAYMENTS OF THE CONTRACT AMOUNT FROM THE TRADE UNIONS, HE SPECI FICALLY TENDERED THAT HE RECEIVED THE FOLLOWING AMOUNTS:- ASSESSMENT YEAR AMOUNT RECEIVED (IN RUPEES) 2003 - 04 16,41,258/ - 2004 - 05 34,5 1,385/ - 2005 - 06 16,90,545/ - 2006 - 07 15,64,096/ - TOTAL 83,47,284 2.3. WE HAVE PERUSED THE STATEMENT AND AS CANVASSE D BY THE LD. COUNSEL FOR THE ASSESSEE, NOWHERE, THE CONT RACTOR TENDERED THAT EITHER HE DID NOT CARRY OUT THE CONTRACT WORK OR HE RETURNED THE MONEY IN CASH TO THE ASSESSEE. MEANING THEREBY, CARRYING OUT OF REPAIRING WORK AND PAYMENT OF THE CONTRACT AMOUN T WAS DULY CONFIRMED BY THE CONTRACTOR. THE STATEMENT OF THE C ONTRACTOR WAS AGAIN RECORDED ON 09/12/2011 (PAGE-38 ONWARDS OF TH E PAPER BOOK) WHEREIN, IN REPLY TO QUESTION NO. 3, HE CATEG ORICALLY STATED THAT HE CARRIED OUT THE REPAIRING WORK OF THE UNION BHAWAN FROM A.Y. 2002-03 TO 2005-06. IN REPLY TO QUESTION NO. 4, HE NAMED THE BUILDING AS KENNEDY HOUSE. IN REPLY TO QUESTION NO .6 (PAGE 39 OF THE PAPER BOOK), HE SPECIFICALLY TENDERED THAT HE R ECEIVED RS.22 LAKHS THROUGH CHEQUE FOR CARRYING OUT THE REPAIR OF KENEDDY HOUSE. IN REPLY TO QUESTION NO. 5 (PAGE 39 OF THE PAPER BOOK), HE EVEN TOLD THE TOTAL AREA OF THE BUILDING, THE NATUR E OF REPAIRING WAS CHANDBIBI ZAIDI ITA NO.358 TO 363/MUM/2014 & ITA NO.1393 TO 1398/MUM/2014 7 TOLD TO THE MARVEL FLOORING, TILLING WORK, POP, ELE CTRIC WORK, PLUMBING, PAINTING, ETC, THEREFORE, THE CONTENTION OF THE LD. DR/ASSESSING OFFICER THAT NO REPAIRING WAS CARRIED OUT BY THE CONTRACTOR IS NOT SUBSTANTIATED. WE FURTHER NOTE TH AT AN AGREEMENT WAS ENTERED INTO BETWEEN ENGINEERING MAJD OOR SABHA ON 31/03/2003 AND M/S FREE TRADE UNION MULTIPURPOSE PROJECT TRUST FOR ESTABLISHING, STARTING, RUNNING AND MAINT AINING PATHOLOGICAL LABORATORIES AND CLINIC FOR EXTENDING FREE MEDICAL BENEFITS TO THE MEMBERS OF THE AFFILIATED TRADE UNI ONS AND OTHER LOWER CLASS PEOPLE IN GENERAL (AT THE SUBSIDIZED CO ST TO THE OTHER PEOPLE) (PAGE 43 TO 50 OF THE PAPER BOOK). IT IS AL SO NOTED THAT WHEN THE SECOND STATEMENT WAS RECORDED ON 09/12/201 1, NO OATH WAS ADMINISTERED TO THE CONTRACTOR (PAGE 38 ONWARDS OF THE PAPER BOOK). HOWEVER, IN REPLY TO QUESTION NO. 13 (PAGE- 41 OF THE PAPER BOOK), HE TENDERED THAT FOR REPAIRING OF THE GROUND FLOOR OF THE BUILDING APPROXIMATELY RS. 22 TO 23 LAKHS WAS PAID TO HIM BY THE TRUST, RS.5.5 TO 6 LAKHS FOR THE OFFICE AT THE GROU ND FLOOR, RS.50 LAKHS FOR THE PLASTER AND PAINTING OF TERRACE ETC. THEREF ORE, THE CONTENTION OF THE LD. DR/ASSESSING OFFICER THAT NO REPAIRING WAS CARRIED OUT BY THE TRUST IS NOT SUBSTANTIATED. IT IS NOTEWORTHY THAT THIRD TIME, THE STATEMENT OF THE CONTRACTOR WAS REC ORDED ON 07/11/2009 (PAGE 29 ONWARDS OF THE PAPER BOOK), WHE REIN, IN REPLY TO QUESTION NO.3, HE CATEGORICALLY STATED THA T HE RECEIVED THE PAYMENT OF RS.22 LAKHS THROUGH CHEQUE AND THE SAME WERE REFLECTED IN HIS RETURN OF INCOME. IN REPLY TO QUES TION NO.5, HE SPECIFICALLY TENDERED THAT HE RECEIVED THE PAYMENT THROUGH CHEQUE ONLY. THE DEPARTMENT HAS NOT BROUGHT ANY EVIDENCE ON RECORD EITHER THE REPAIRS WERE BOGUS OR THE MONEY WAS RETU RNED TO THE ASSESSEE. NO ADDITION CAN BE SUSTAINED MERELY ON TH E BASIS OF CHANDBIBI ZAIDI ITA NO.358 TO 363/MUM/2014 & ITA NO.1393 TO 1398/MUM/2014 8 PRESUMPTION. EVEN OTHERWISE, AS CANVASSED BY THE LD . COUNSEL FOR THE ASSESSEE, THAT ADDITION, IF ANY, HAS TO BE MADE THAT CAN POSSIBLY BE MADE, IF ANY EVIDENCE IS FOUND, ONLY IN THE HAND S OF THE TRUST, WHO MADE THE PAYMENTS AND NOT IN THE HANDS OF THE A SSESSEE. IT IS ALSO NOTED, AS ADMITTED BY THE DEPARTMENT ALSO (PAG E-9 OF THE PAPER BOOK) THAT IN SPITE OF SPECIFICALLY ASKING BY THE ASSESSEE FOR CROSS EXAMINATION, IT WAS NOT PROVIDED TO THE ASSES SEE, THUS, THE ASSESSEE WAS PRECLUDED FROM ITS STATUTORY RIGHT TO DEFEND, CONSEQUENTLY, THE STATEMENT WHICH IS THE SOLE BASIS OF MAKING THE ADDITION CANNOT BE RELIED UPON. WE OBSERVE HERE TH AT THE STATEMENT SO TENDERED RATHER SUPPORTS THE CASE OF T HE ASSESSEE AS THE CONTRACTOR HIMSELF DURING INVESTIGATION THAT IN FACT HE CARRIED OUT THE WORK (QUESTION NO. 3 AND 4) STATEMENT DATED 07/11/2009 (PAGE 39 TO 41 OF THE PAPER BOOK). IN REPLY TO QUES TION NO.7 (STATEMENT DATED 07/11/2009), THE CONTRACTOR CONSEN TED THAT HE RECEIVED MORE PAYMENTS THAN CLAIMED BY THE DEPARTME NT. IT IS IMMATERIAL HOW AND WHY THE CONTRACTOR DEPOSITED IN CASH IN HIS ACCOUNT, SUCH DEPOSITS IN CASH ARE UNRELATED TO THE ASSESSEE AND IF ANY CASH HAS BEEN DEPOSITED HAS TO BE EXPLAINED BY THE CONTRACTOR AND NOT THE ASSESSEE. THE LD. COUNSEL ALSO EXPLAIN ED BEFORE US THAT THE ASSESSING OFFICER WAS INVITED TO EXAMINE THE WO RK CARRIED OUT BY THE CONTRACTOR HIMSELF, SO THAT THE CONTROVERSY MAY BE PUT TO REST BUT THAT WAS NOT ACCEPTED BY THE ASSESSING OFF ICER FOR THE REASONS BEST KNOWN TO HIM. TOTALITY OF FACTS, CLEA RLY INDICATES THAT NO EVIDENCE HAS BEEN PRODUCED BY THE REVENUE IN SUP PORT OF ITS CLAIM. IT IS ALSO NOTEWORTHY THAT THERE ARE OTHER E LEVEN WORKING COMMITTEE MEMBERS IN THE UNION AND THE NUMBER OF OT HER TRUSTEES, IT IS UNKNOWN AS TO HOW THE ASSESSEE WAS PICKED UP TO MAKE THE ADDITION. EVEN OTHERWISE, NOTHING WAS SEIZED, DURIN G SEARCH CHANDBIBI ZAIDI ITA NO.358 TO 363/MUM/2014 & ITA NO.1393 TO 1398/MUM/2014 9 OPERATION, INDICATING THAT ANY INCOME AROSE TO THE ASSESSEE OUT OF THE REPAIRING WORK DONE BY THE CONTRACTOR ON BEHALF OF THE TRUST. IT IS ALSO NOTEWORTHY, THAT THE CONTRACTOR, SHRI SHANK AR GODDAM, NEVER TENDERED IN THE STATEMENT, RECORDED ON VARIOU S DATES, THAT HE REPAID THE MONEY IN CASH TO THE ASSESSEE. OUR OBSE RVATION FURTHER GETS SUPPORT FROM THE OBSERVATION MADE IN THE IMPUG NED ORDER ITSELF (PAGE-38 OF THE PAPER BOOK INTERNAL PAGE 33 OF THE IMPUGNED ORDER), WHEREIN, IT HAS BEEN OBSERVED THAT IT IS T RUE THAT SHANKAR GODDAM HAS NEVER CONFESSED TO RETURN THE AMOUNT TO CHANDBIBI ZAIDI, THE APPELLANT. IT IS ALSO NOTED THAT IN CON CLUSION TO PARA 5 OF THE IMPUGNED ORDER, THE ADDITION WAS RESTRICTED TO 75% OF THE ADDITIONS MADE IN EACH OF THE RELEVANT YEARS. IT F ORTIFIES THE CASE OF THE ASSESSEE BECAUSE, IF NO REPAIRING WORK WAS CARR IED OUT IT HAS TO BE DISALLOWED FULLY OR ALLOWED FULLY AS HAS BEEN CL AIMED UNLESS AND UNTIL CONTRARY MATERIAL IS BROUGHT ON RECORD, THUS, THIS GROUND OF THE ASSESSEE IS ALLOWED. 2.2. IF THE OBSERVATION MADE IN THE ASSESSMENT ORD ER, LEADING TO ADDITION MADE TO THE TOTAL INCOME, CONCL USION DRAWN IN THE IMPUGNED ORDER, MATERIAL AVAILABLE ON RECORD, CONCLUSION DRAWN IN THE ORDER OF THE TRIBUNAL DATED 05/02/2016, ASSERTIONS MADE BY THE LD. RESPECTIVE C OUNSEL, IF KEPT IN JUXTAPOSITION AND ANALYZED, WE FIND THAT TH E ISSUE IN HAND HAS ALREADY BEEN DELIBERATED UPON BY THE TRIBU NAL AND SINCE BOTH THE SIDES ADMITTED THAT THE FACTS AND TH E ISSUE IS IDENTICAL TO ASSESSMENT YEAR 2004-05, THEREFORE, FO LLOWING THE CHANDBIBI ZAIDI ITA NO.358 TO 363/MUM/2014 & ITA NO.1393 TO 1398/MUM/2014 10 AFORESAID ORDER OF THE TRIBUNAL, THIS GROUND OF THE ASSESSEE IS ALLOWED. 3. NEXT GROUND PERTAINS TO WORKERS AID IN THE RESPECTIVE ASSESSMENT YEARS, IS CONCERNED, IT WAS E XPLAINED BY THE LD. COUNSEL THAT THIS ISSUE HAS ALSO BEEN DELIB ERATED UPON IN PARA 3.2 OF THE ORDER OF THE TRIBUNAL AND FACTS ARE IDENTICAL. THE LD. CIT-DR CONSENTED THAT THE ISSUE AND THE FAC TS IN THE PRESENT ASSESSMENT YEARS ARE ALSO IDENTICAL. 3.1. ON PERUSAL OF RECORD AND AFTER HEARING THE RI VAL SUBMISSIONS, WE FIND THAT THE TRIBUNAL HAS DELIBERA TED UPON THE ISSUE AND FOR ASSESSMENT YEAR 2004-05 HELD AS U NDER:- 3. THE NEXT GROUND RAISED BY THE ASSESSEE PER TAINS TO CONFIRMING THE ADDITION OF RS.1,27,43,940/- ON ACCO UNT OF WORKERS AID PAID BY THE UNIONS AS A COMPENSATION DURING STRIKE PERIOD AT DIFFERENT PLACES. THE CRUX OF ARGUMENT AD VANCED ON BEHALF OF THE ASSESSEE IS THAT FINANCIAL AID IS PRO VIDED TO THE WORKERS BY THE UNIONS FOR THE STRIKE PERIOD BY EXPL AINING THAT THE WORKERS ARE PART/MEMBERS OF THE UNIONS AND IN SPITE OF DOING THE PEST CONTROL, THE VOUCHERS, KEPT IN THE TERRACE (BE ING IN LARGE NUMBER) COULD NOT BE SAVED. IT WAS EMPATHETICALLY ARGUED THAT BOOKS OF ACCOUNTS ARE AUDITED AND THE AUDITOR DULY FILED THE AFFIDAVIT BEFORE ASSESSING OFFICER AS WELL AS LD. C OMMISSIONER OF INCOME TAX (APPEALS) CONFIRMING THAT HE VERIFIED TH E VOUCHERS AND THEN ONLY HE MADE THE REPORT READY FOR WHICH O UR ATTENTION CHANDBIBI ZAIDI ITA NO.358 TO 363/MUM/2014 & ITA NO.1393 TO 1398/MUM/2014 11 WAS INVITED TO THE AFFIDAVIT OF THE AUDITOR (PAGE 6 7 OF THE PAPER BOOK), AFFIDAVIT OF THE GENERAL SECRETARY OF THE UN ION (PAGE 68 OF THE PAPER BOOK), AFFIDAVIT OF THE CASHIER OF THE UN ION (PAGE 69 OF THE PAPER BOOK), OFFICER BEARERS (PAGE 70 OF THE PA PER BOOK), AFFIDAVIT OF THE WORKERS AS A SAMPLE (PAGES 71 TO 7 3 OF THE PAPER BOOK), RESOLUTION PASSED BY THE MANAGEMENT COMMITTE E APPROVING THE PAYMENT TO THE WORKERS (PAGE 74 OF TH E PAPER BOOK), PROOF OF PAYMENTS (PAGE 75 TO 84 OF THE PAPE R BOOK) AND IDENTICAL AFFIDAVITS FROM OTHER UNIONS (PAGE 85 TO 96 OF THE PAPER BOOK). ALTERNATIVELY, IT WAS ARGUED THAT IF AT ALL ANY ADDITION IS REQUIRED TO BE MADE THAT HAS TO BE MADE IN THE HAND S OF THE INDIVIDUAL MAJDOOR SABHA AND NOT IN THE CASE OF THE ASSESSEE. THE LD. COUNSEL FURTHER ASSERTED THAT THERE ARE OTHER T EN COMMITTEE MEMBERS AND NO ADDITION WAS MADE IN THEIR HANDS AND THE ASSESSEE WAS SIMPLY SELECTED WITH THE PURPOSE OF HA RASSMENT. OUR ATTENTION WAS INVITED TO PAGE 60 OF THE PAPER B OOK CONTAINING ORDER U/S 143(3) OF THE ACT FOR A. Y. 2004-05, WHER EIN, ON IDENTICAL FACT, NO ADDITION WAS MADE BY ASSESSING O FFICER. OUR ATTENTION WAS FURTHER INVITED TO PAGE 62 OF THE PAP ER BOOK IN THE CASE OF ENGINEERING MAJDOOR SABHA, WHEREIN, ON IDEN TICAL FACTS, NO DISALLOWANCE WAS MADE IN ORDER FRAMED U/S 143(3) OF THE ACT. IT WAS ALSO PLEADED THAT ADDITION U/S 153A OF THE A CT CAN BE MADE ONLY ON THE BASIS OF SEIZED MATERIALS FOR WHICH REL IANCE WAS PLACED UPON THE DECISION MURLI AGRO (ITA NO.36 OF 2009) OR DER DATED 29/10/2010 BY CLAIMING THAT NO MATERIAL WAS SEIZED AGAINST THE ASSESSEE DURING THE SEARCH ACTION, THUS, NO ADDITIO N CAN BE MADE. IT WAS CONTENDED THAT ONLY JEWELRY WORTH RS.4,80,15 0/- WAS SEIZED. OUR ATTENTION WAS INVITED TO THE ORDER OF THE TRIBUNAL, WHEREIN, IN THE CASE OF ENGINEERING MAJDOOR SABHA, THE TRIBUNAL HELD THAT ADDITION CAN BE MADE U/S 153A ONLY WITH R ESPECT TO SEIZED MATERIAL (ITA NO.1373 TO 1379/MUM/2013) ORDE R DATED 25/02/2015. CHANDBIBI ZAIDI ITA NO.358 TO 363/MUM/2014 & ITA NO.1393 TO 1398/MUM/2014 12 3.1. ON THE OTHER HAND, THE LD. DR, DEFENDED THE A DDITION BY PLACING RELIANCE UPON THE FINDING CONTAINED IN T HE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS). 3.2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT, CERTAIN PAYMENTS WERE MADE TO THE WORKERS, DU RING STRIKE PERIOD, BY THE UNIONS AS AN AID. THE LD. ASSESSING OFFICER ASKED THE ASSESSEE TO PRODUCE THE VOUCHERS. THE ASSESSEE /UNIONS CLAIMED THAT DUE TO LARGE VOLUME OF PAPERS, THE SAM E WERE KEPT IN TERRACE, WHICH WERE DESTROYED BY ANTS/WHITE ANTS . THE ADDITION WAS MADE BY THE ASSESSING OFFICER ON THE P REMISE THAT THE ASSESSEE WAS EXPECTED TO TAKE MORE PRE-CAUTION. WITHOUT GOING INTO MUCH DELIBERATION, UNDER THE FACTS, NOW QUESTION ARISES WHETHER THE ASSESSEE TOOK REASONABLE PRECAUTION AND FURTHER GENUINENESS OF THE VOUCHERS. THE ASSESSEE CLAIMED T HAT PEST CONTROL WAS DONE STILL THE VOUCHERS WOULD NOT BE SA VED. SO FAR AS, RELIABILITY OF VOUCHERS AND CONSEQUENT PAYMENTS ARE CONCERNED, WE FIND THAT BOOKS OF ACCOUNTS OF THE ASSESSEE ARE AUDITED AND THE AUDITOR FILED THE AFFIDAVIT (PAGE-67 OF THE PAP ER BOOK) AFFIRMING THAT HE AUDITED THE ACCOUNTS OF THE TRADE UNIONS AND WHILE AUDITING THE BOOKS ALL VOUCHERS WERE PRODUCED BY THE CONCERN TRADE UNIONS FOR HIS INSPECTION AND VERIFIC ATION AND MORE PARTICULARLY PAYMENT MADE TO WORKERS AID. HE STATED IN THE AFFIDAVIT THAT SUCH VOUCHERS WERE CHECKED BY HIM. IT IS ALSO NOTED THAT GENERAL SECRETARY OF THE UNION (PAGE 68 OF THE PAPER BOOK), WHO IS AUTHORIZED SIGNATORY ON BEHALF OF THE UNIONS, STATED IN HIS AFFIDAVIT THAT HE IS RESPONSIBLE FOR MAINTAI NING THE RECORD AND HE WITHDREW THE AMOUNTS FROM THE ACCOUNTS OF TH E UNIONS FOR THE PURPOSES OF DISTRIBUTION AMONG THE WORKMEN. ID ENTICALLY, THE ACCOUNTANT OF THE ENGINEERING MAJDOOR SABHA, SHRI B ABU POSHANNA TUNNALA (PAGE 69 OF THE PAPER BOOK) STATED THAT HIS WORK WAS TO MAINTAIN ACCOUNTS OF THE UNIONS, TO DRA W AND DEPOSIT CHEQUES, TO RECONCILE ACCOUNTS ETC AND FURTHER STAT ED THAT HE CHANDBIBI ZAIDI ITA NO.358 TO 363/MUM/2014 & ITA NO.1393 TO 1398/MUM/2014 13 WITHDREW THE AMOUNTS FROM THE BANK FOR THE PURPOSES OF DISTRIBUTION AMONGST THE WORKERS AS A WORKERS AID. HE HAS FURTHER STATED THAT VOUCHERS WERE DULY SIGNED BY TH E CONCERNED WORKERS. LIKEWISE, ONE OF THE SECRETARIES, SHRI GUR UPRASAD BACHARAM VARMA, TENDERED IDENTICAL AFFIDAVIT (PAGE 70 OF THE PAPER BOOK) CONFIRMING DISBURSEMENT OF AID TO THE W ORKERS. LIKEWISE, AFFIDAVITS FROM WORKERS (AS A SAMPLE COPY ) (PAGES 71 TO 73 OF THE PAPER BOOK) AFFIRMING RECEIPT OF AID HAS BEEN FURNISHED. AT PAGE-47 OF THE PAPER BOOK, THERE IS EXTRACT OF M EETING OF THE GENERAL COUNSEL COMMITTEE OF THE ENGINEERING MAJDOO R SABHA, HELD ON 03/01/2004 AT KENNEDY HOUSE RESOLVING THAT THE AMOUNT OF RS.86,60,000/- HAS TO BE GIVEN TO THE WORKERS (P AGE 74 OF THE PAPER BOOK). THE DETAILS OF WORKERS ALONG WITH THE PAYMENTS MADE TO THEM ARE AVAILABLE FROM PAGES 75 TO 84 OF T HE PAPER BOOK. IT IS NOTEWORTHY THAT ALL THESE DOCUMENTS WER E NEITHER ESTABLISHED TO BE BOGUS BY THE REVENUE NOR ANY EVID ENCE WAS BROUGHT ON RECORD CONTRADICTING THE CLAIM OF THE AS SESSEE. AT PAGE 85 TO 90 OF THE PAPER BOOK, CERTAIN AFFIDAVITS HAVE BEEN FILED SUBSTANTIATING THE WITHDRAWAL OF PAYMENTS FROM THE ACCOUNTS OF THE TRADE UNIONS FOR THE PURPOSES OF DISTRIBUTION A MONGST THE WORKMEN FORCE. IN VIEW OF THIS FACT, WE FIND MERIT /FORCE IN THE CONTENTION OF THE ASSESSEE. WE FURTHER NOTE THAT ID ENTICALLY (PAGE 91) THERE IS A RESOLUTION OF THE MUMBAI MAJDOOR SAB HA ALSO FOR DISTRIBUTING AID TO THE WORKERS TO THE TUNE OF RS.2 4,31,513/- AND FURTHER THE NAMES AND EXACT AMOUNT DISBURSED TO THE WORKERS FIND PLACE AT PAGES 92 TO 96 OF THE PAPER BOOK. TH IS FACTUAL MATRIX WAS NOT CONTROVERTED BY THE REVENUE. IT IS ALSO NOTEWORTHY THAT FOR ASSESSMENT YEAR 2004-05 THAT TO O AN ORDER U/S 143(3) OF THE ACT, IDENTICALLY NO DISALLOWANCE WAS MADE. IN THE CASE OF ENGINEERING MAJDOOR SABHA (PAGE 62 TO 6 6 OF THE PAPER BOOK) FOR A.Y. 2003-04, NO DISALLOWANCE WAS M ADE WHILE FRAMING THE ASSESSMENT U/S 143(3) R.W.S 147 OF THE ACT. IT IS ALSO NOTED THAT ONE NANDKISHORE RASHIKLAL AGRAWAL, (PAGE 67 OF CHANDBIBI ZAIDI ITA NO.358 TO 363/MUM/2014 & ITA NO.1393 TO 1398/MUM/2014 14 THE PAPER BOOK) HAS SWORN AFFIDAVIT STATING THAT HE AUDITED THE ACCOUNTS OF ENGINEERING MAJDOOR SABHA AND MUMBAI MA JDOOR SABHA AND ALL VOUCHERS/BOOKS OF ACCOUNTS WERE PRODU CED BY CONCERNED TRADE UNIONS FOR HIS INSPECTION AND VERIF ICATIONS INCLUDING VOUCHERS RELATING TO WORKERS AND THE SAME WERE CHECKED BY HIM. TOTALITY OF FACTS CLEARLY INDICATES THAT THE VOUCHERS WERE IN EXISTENCE, DULY CHECKED BY THE AUD ITORS AT THE RELEVANT TIME, PAYMENTS WERE MADE TO THE WORKERS AS A AID, THEREFORE, WE FIND MERIT IN THE ARGUMENT OF THE ASS ESSEE. WE ALSO OBSERVE THAT UNDER THE FACTS NARRATED HEREINABOVE, NO ADDITION CAN BE SUSTAINED IN THE HANDS OF THE ASSESSEE, BECA USE ADDITION, IF ANY, IS TO BE MADE THAT MAY BE IN THE HANDS OF T HE INDIVIDUAL MAJDOOR SABHA. AS TO HOW THE ASSESSEE WAS PICKED UP OUT AND REMAINING MEMBERS OF THE MANAGING COMMITTEE WERE NO T TOUCHED IS NOT KNOWN. EVEN OTHERWISE U/S 153A OF T HE ACT, ADDITION CAN BE MADE ON THE BASIS OF SEIZED MATERIA L. FOR THIS PROPOSITION, WE FIND SUPPORT FROM THE DECISION FROM HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS M/S MURLI AGRO PRODUCTS LTD. (ITA NO.36 OF 2009) ORDER DATED 29/10 /2010 AND ITA NO.1373 TO 1379/MUM/2013 IN THE CASE OF M/S ENG INEERING MAJDOOR SABHA VS ACIT, ORDER DATED 25/02/2015, THUS , IN THE ABSENCE OF ANY CONTRARY MATERIAL, SUBSTANTIATING TH E VERSION OF THE DEPARTMENT, WE ALLOW THIS GROUND OF THE ASSESSE E. 3.2. IT IS NOTED THAT IN THE AFORESAID ORDER, THE TRIBUNAL HAS DELIBERATED UPON THE ISSUE AT LENGTH A ND CONSIDERING THE TOTALITY OF FACTS, DECIDED THE ISSU E IN FAVOUR OF THE ASSESSEE. SINCE, THE FACTS ARE IDENTICAL, THER EFORE, FOLLOWING THE AFORESAID ORDER OF THE TRIBUNAL, THE IMPUGNED ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE. CHANDBIBI ZAIDI ITA NO.358 TO 363/MUM/2014 & ITA NO.1393 TO 1398/MUM/2014 15 4. SO FAR AS, THE ISSUE OF INCOME OF RELATIVES IN THE RESPECTIVE ASSESSMENT YEARS IS CONCERNED, IT WAS EX PLAINED BY THE TRIBUNAL THAT THE SAME HAS BEEN DECIDED IN PARA 4.2 OF THE ORDER OF THE TRIBUNAL AND THE FACTS ARE IDENTICAL. THE LD. CIT- DR, DID NOT CONTROVERT TO THE ASSERTION OF THE ASSE SSEE. 4.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW O F THE ABOVE, WE ARE REPRODUCING HEREUNDER THE RELEVANT PORTION F ROM THE AFORESAID ORDER OF THE TRIBUNAL DATED 05/02/2016 FO R READY REFERENCE:- 4. THE NEXT GROUND I.E. GROUND NO.3, RAISED BY TH E ASSESSEE PERTAINS TO CONFIRMING ADDITIONS TO THE IN COME OF RELATIVES OF THE ASSESSEE MR. WAIZE ALI, MS. RAVISH ZAIDI, KHIRAD ZAIDI AND NASIR ALI ZAIDI. THE CRUX OF ARGUMENT AD VANCED ON BEHALF OF THE ASSESSEE THAT THE AFOREMENTIONED RELA TIVES OF THE ASSESSEE WERE STUDYING ABROAD, MOSTLY IN CANADA, RE CEIVED EDUCATION AID FROM THE UNION. THE BANK ACCOUNT WAS OPERATED AS JOINT ACCOUNT WITH THE STUDENTS, SIMPLY FOR OPERATI ON OUT OF INDIA AS THE RELATIVES WERE STAYING/STUDYING ABROAD. IT WAS CONTENDED THAT THE ADDITION IN THE HANDS OF THE ASSESSEE IS N OT WARRANTED EVEN OTHERWISE, THE ASSESSEE DISCLOSED RS.72 LAKHS. THE EDUCATION LOAN WAS EXPLAINED TO BE RECEIVED BY THE RELATIVES FROM THE UNION, THE SAME WAS DISCLOSED AND DUE TAXE S WERE PAID. IT WAS POINTED OUT THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) CALLED THE REMAND REPORT FROM THE ASS ESSING CHANDBIBI ZAIDI ITA NO.358 TO 363/MUM/2014 & ITA NO.1393 TO 1398/MUM/2014 16 OFFICER, WHO AGREED THAT THESE DEPOSITS CANNOT BE A DDED TO THE INCOME OF THE ASSESSEE AND ONLY INTEREST INCOME CAN BE ADDED. IT WAS POINTED OUT THAT DEPARTMENT FILED APPEAL BEF ORE THE TRIBUNAL IN THE CASE OF FOUR RELATIVES, AGAINST THE RELIEF GRANTED BY THE COMMISSIONER OF INCOME TAX (APPEALS), WHEREI N, THE STAND OF THE LD. FIRST APPELLATE AUTHORITY WAS CONF IRMED I.E. DECIDED IN FAVOUR OF THE ASSESSEE. 4.1. ON THE OTHER HAND, THE LD. DR, DEFENDED THE CONCLUSION ARRIVED AT IN THE IMPUGNED ORDER. 4.2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IF THE OB SERVATION MADE IN THE ASSESSMENT ORDER, LEADING TO ADDITION M ADE TO THE TOTAL INCOME, CONCLUSION DRAWN IN THE IMPUGNED ORDE R, MATERIAL AVAILABLE ON RECORD, ASSERTIONS MADE BY THE LD. RES PECTIVE COUNSEL, IF KEPT IN JUXTAPOSITION AND ANALYZED, WE NOTE THAT ADDITIONS WERE MADE ON THE BASIS OF AMOUNTS DEPOSIT ED IN THE BANK ACCOUNTS OF RAVISH ZAIDI, WAIZE ALI, KHURAD ZA IDI, AND NASIR ALI ZAIDI. MR. WAIZE MUKHTAR ALI WAS CLAIMED TO BE NEPHEW OF THE ASSESSEE. DURING THE COURSE OF SEARCH, A BAN K ACCOUNT WAS FOUND IN THE NAME OF WAIZE MUKHTAR ALI AND THE ASSESSEE MS. CHANDBIBI ZAIDI (JOINT NAME), THE NAME OF THE A SSESSEE APPEARS AS A SECOND NAME. IT IS NOTED THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) CALLED FOR A REMAND REPORT FROM THE LD. ASSESSING OFFICER, WHO PRACTICALLY AGREED THAT THES E DEPOSIT CANNOT BE ADDED IN THE HANDS OF THE ASSESSEE AND ON LY INTEREST INCOME CAN BE ADDED. IT IS NOTED THAT THIS A CASE OF CAPITAL FORMATION BY WAY OF GIFT AND THE EDUCATION AID/LOAN WERE RECEIVED BEFORE 2003 AND FURTHER IN REGULAR ASSESSM ENT, DUE TAXES WERE PAID, THEREFORE, INTEREST INCOME, IF ANY , CAN ONLY BE ADDED, IN THE HANDS OF THE ASSESSEE. FROM THE BALAN CE SHEET OF NASHIR ALI ZAIDI, AS ON 31/03/2004 (PAGE 132 OF THE PAPER BOOK) IT IS EVIDENT THAT NOTHING IS AVAILABLE IN THE CAPI TAL ACCOUNT AND CHANDBIBI ZAIDI ITA NO.358 TO 363/MUM/2014 & ITA NO.1393 TO 1398/MUM/2014 17 IN ITS CAPITAL AND LIABILITIES, THE GIFT RECEIVED F ROM THE ASSESSEE HAS BEEN DULY DECLARED. THE LD. COUNSEL, DURING HEA RING, POINTED OUT THAT IN THE CASES OF THESE FOUR RELATIVES, DEPA RTMENT FILED APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX (A PPEALS), WHEREIN, RELIEF WAS GRANTED TO THESE ASSESSES AND T HE TRIBUNAL ON FURTHER APPEAL CONFIRMED IN FAVOUR OF THE ASSESS EES (ITA NO.1345/MUM/2014). THIS FACTUAL MATRIX WAS NOT CONT ROVERTED BY THE REVENUE. IN VIEW OF THIS FACTUAL MATRIX, THE LD. ASSESSING OFFICER IS DIRECTED TO ADD INTEREST INCOME ONLY AND SUBJECT TO LIMITED VERIFICATION OF THE FRESH CREDITS IN THE AC COUNTS OF THE SAID PERSONS IN ACCORDANCE OF THE MANDATE OF THE ACT, TH EREFORE, THIS GROUND IS PARTLY ALLOWED. 4.2. IN VIEW OF THE ABOVE AND SINCE BOTH SIDES AGR EED THAT THE ISSUE AND THE FACTS ARE IDENTICAL TO ASSES SMENT YEAR 2004-05, THEREFORE, FOLLOWING THE CONCLUSION DRAWN IN THE AFORESAID ORDER, WE DIRECT THE LD. ASSESSING OFFICE R TO FOLLOW THE DIRECTION/CONCLUSION CONTAINED IN THE ORDER OF THE TRIBUNAL, THUS, THIS GROUND IS PARTLY ALLOWED. 5. SO FAR AS, THE ISSUE WITH RESPECT TO LOSS ON SA LE GIRIRAJ FLAT IS CONCERNED, THE LD. COUNSEL FOR THE ASSESSEE CLAIMED THAT THE ISSUE AND THE FACTS IS IDENTICAL T O ASSESSMENT YEAR 2004-05. THE LD. CIT-DR CONSENTED THAT THE VER SION OF THE ASSESSEE IS CORRECT. CHANDBIBI ZAIDI ITA NO.358 TO 363/MUM/2014 & ITA NO.1393 TO 1398/MUM/2014 18 5.1. IN VIEW OF THE ABOVE, WE ARE REPRODUCING HERE UNDER THE RELEVANT PORTION FROM THE AFORESAID ORDER OF TH E TRIBUNAL FOR READY REFERENCE:- 5. THE NEXT GROUND I.E. GROUND NO.4, THE ISSUE PE RTAINS TO CONFIRMING TREATMENT OF LOSS INCURRED ON SALE OF GRIRAJ FLAT AS A LOSS UNDER THE HEAD CAPITAL LOSS IN SPITE OF TH E FACT THAT THE NOTHING WAS SEIZED DURING THE SEARCH. THE CRUX OF A RGUMENT ADVANCED ON BEHALF OF THE ASSESSEE IS THAT IN THE Y EAR 2002, THE ASSESSEE RECEIVED FLAT AS A GIFT AT GRIRAJ SOCIETY FROM THE UNION. ASSESSMENT YEAR 2002-03 WAS REOPENED AND THIS FLAT WAS ADDED AS INCOME U/S 28(IV) AS A PERQUISITE ETC. IN 2004, THE ASSESSEE SOLD THIS FLAT AND INCURRED LOSS OF RS.1 CRORE. IT WAS EXPLAINED THAT THE ASSESSEE PAID RS.2 CRORE AS A STAMP DUTY O N THE FLAT AND LATER ON THE FLAT WAS SOLD FOR RS.1 CRORE (DUE TO FALL IN PRICES OF THE PROPERTY), THIS LOSS WAS CLAIMED AS BUSINESS LOSS. IT WAS EXPLAINED THAT THE LD. ASSESSING OFFICER RECTIFIED THE ORDER AND ALLOWED AS A BUSINESS LOSS AND NOT AS A CAPITAL LOS S. OUR ATTENTION WAS INVITED TO PAGE 135 OF THE PAPER BOOK (CONTAINING RECTIFICATION ORDER U/S 154 OF THE ACT) ORDER DATED 27/03/2008. IT WAS EXPLAINED THAT IN A.Y. 2005-06 (PAGE 136 OF THE PAPER BOOK RECTIFICATION ORDER U/S 154 OF THE ACT DATED 2 7/03/2008 WAS PASSED IN WHICH ALSO, RELIEF WAS GRANTED TO THE ASSESSEE, THEREFORE, THIS WAS NOT AN ISSUE DURING THE SEARCH AS THE SEARCH WAS CARRIED OUT IN 2009. IT WAS ALSO CONTENDED THAT NO INCRIMINATING DOCUMENTS/MATERIAL WAS FOUND DURING T HE SEARCH, THEREFORE, THIS ORDER STANDS. THE LD. DR NEITHER C ONTROVERTED THE EXPLANATION OF THE ASSESSEE NOR PASSING THE RECTIF ICATION ORDER PASSED U/S 154 OF THE ACT DATED 27/03/2008 FO R A.Y. 2004-05 AND 2005-06, THEREFORE, WE FIND MERIT IN TH E ARGUMENT OF THE ASSESSEE AS NO ADDITION CAN BE MADE UNDER CHANDBIBI ZAIDI ITA NO.358 TO 363/MUM/2014 & ITA NO.1393 TO 1398/MUM/2014 19 AFOREMENTIONED CIRCUMSTANCES AS NOTHING ADVERSE WAS FOUND BY THE DEPARTMENT DURING SEARCH AND THE ORIGINAL ASSES SMENTS ARE NOT ABATED AS THE DATE OF SEARCH IS 20/08/2009 AND THE RELEVANT ASSESSMENT YEAR IS 2004-05 WHEREBY TIME FOR ISSUING NOTICE U/S 143(2) OF THE ACT FOR FRAMING ASSESSMENT U/S 143(3) OF THE ACT HAS ALREADY EXPIRED AND NO NEW INCRIMINATING MATERI AL IS STATED TO HAVE BEEN FOUND DURING THE COURSE OF SEARCH, HEN CE, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A OF T HE ACT AND THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT I N THE CASE OF CONTINENTAL WAREHOUSING CORPORATION (NHEVA SHEVA) L TD. (2015) 58 TAXMANN.COM 78(BOM) AND MORE SPECIFICALLY, WHEN THE ASSESSING OFFICER HIMSELF FOUND THE CLAIM OF THE AS SESSEE IN ORDER AND RECOMPUTED THE LOSS ON ACCOUNT OF SALE OF FLAT (BEING HELD AS PROFESSIONAL RECEIPT/PROFESSIONAL ASSET) AS A PROFESSIONAL LOSS. THIS GROUND OF THE ASSESSEE IS, THEREFORE, AL LOWED. 5.2. IN VIEW OF THE ABOVE AND THE ASSERTION MADE B Y THE LD. RESPECTIVE COUNSEL, THIS ISSUE IS DECIDED IN FA VOUR OF THE ASSESSEE. 6. THE NEXT GROUND RAISED BY THE ASSESSEE PERTAINS TO INCOME FROM VACANT FLAT IN THE RESPECTIVE ASSESSMEN T YEAR IS CONCERNED, THE LD. COUNSEL FOR THE ASSESSEE EXPLAIN ED THAT THIS ISSUE HAS BEEN DELIBERATED UPON IN PARA 6 OF THE OR DER OF THE TRIBUNAL AND THE FACTS IN THE APPEAL IN HAND ARE ID ENTICAL. THE LD. CIT-DR DID NOT CONTROVERT THE CONTENTION OF THE ASSESSEE. CHANDBIBI ZAIDI ITA NO.358 TO 363/MUM/2014 & ITA NO.1393 TO 1398/MUM/2014 20 6.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ISSUE DELIBERATED UPON BY THE TRIBUNAL FOR ASSESSMENT YEA R 2004-05 IS REPRODUCED HEREUNDER:- 6. THE NEXT GROUND PERTAINS TO CONFIRMING ADDITIO N OF DEEMED INCOME OF RS.1,59,500/- FROM THE VACANT FLAT . THE CRUX OF ARGUMENT ON BEHALF OF THE ASSESSEE IS THAT THE ISSU E HAS ALREADY BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE TRIBU NAL IN THE CASE OF ASSESSEE ITSELF (ITA NO.2347 AND 1372/MUM/2013) ORDER DATED 29/07/2015. THIS FACTUAL MATRIX WAS CONSENTED TO BE CORRECT BY THE LD. DR. 6.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD AND FIND T HAT THE TRIBUNAL VIDE AFORESAID ORDER DATED 29/07/2015 DECIDED THE I SSUE. THE RELEVANT PORTION OF THE SAME IS REPRODUCED HEREUNDE R:- 24. IN GROUND NO. 1, THE ASSESSEE HAS CHALLENGED T HE ADDITION OF RS. 3,87,600/- ON ACCOUNT OF DEEMED INCOME FROM VACANT PLOT AND NOT ALLOWING DEDUCTION OF BROKERAGE OF RS.50,000/-. 25. SO FAR AS THE ISSUE OF BROKERAGE OF RS. 50,000/ - IS CONCERNED, THE LD. COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THE SA ME IS NOT PRESSED AND REQUESTED TO WITHDRAW THE SAID GROUND. ACCORDIN GLY, THE CLAIM FOR DEDUCTION OF BROKERAGE AMOUNT OF RS. 50,000/- I S DISMISSED AS NOT PRESSED. 26. AS REGARDS THE ADDITION OF RS.3,87,600/- ON ACC OUNT OF DEEMED INCOME FOR HOUSE PROPERTY, THE RELEVANT FACT IS THA T THE ASSESSEE WAS OWNER OF FIVE FLATS IN MUMBAI, OUT OF WHICH TWO FLA TS AT SPENCERS CHANDBIBI ZAIDI ITA NO.358 TO 363/MUM/2014 & ITA NO.1393 TO 1398/MUM/2014 21 CHS AT BANDRA WERE LET OUT AND RENTAL INCOME WAS OF FERED. FLAT AT CRESCENT HEIGHT WAS CLAIMED AS SELF OCCUPIED. HOWEV ER, FOR THE REMAINING TWO FLATS I.E. GIRIRAJ APARTMENT, OCEANIC APARTMENT, ASSESSEE HAS NOT OFFERED ANY INCOME, WHICH IS THE S UBJECT MATTER OF ADDITION BY THE AO. THE ASSESSING OFFICER ISSUED NO TICE U/S 133(6) TO THE SECRETARIES OF BOTH THE HOUSING SOCIETIES FOR F URNISHING THE DETAILS OF LET OUT VALUE OF THE FLATS IN THEIR RESPECTIVE S OCIETIES, ON IDENTICAL SIZE OF THE FLATS AND THE RENTAL INCOME EARNED DURI NG THE SAME PERIOD. IN RESPONSE, IT WAS SUBMITTED THAT THE RENTAL RATE IN GIRIRAJ APARTMENT WAS RS. 20 PER SQ. FT. AND ACCORDINGLY, T HE ASSESSING OFFICER DETERMINED THE RENTAL VALUE AT RS. 2,32,200 . SO FAR AS OCEANIC CHS, THE ASSESSING OFFICER RECEIVED NO INFO RMATION, THEREFORE, HE ESTIMATED THE FAIR MARKET RENT ON SAM E VALUE, I.E. AT RS. 20 AND ACCORDINGLY, THE ANNUAL LETTING VALUE WAS ES TIMATED AT RS. 1,54,800/-. THE ASSESSEE ON THE OTHER HAND, CONTEND ED THAT THE MUNICIPAL VALUE RATES OF THESE FLATS WERE AT RS. 3, 281/- AND RS. 2,643/- RESPECTIVELY, THEREFORE, THIS VALUE SHOULD BE ADOPTED AS THESE FLATS WERE NOT LET OUT. HOWEVER, THE ASSESSING OFFI CER HELD THAT THE SAID VALUATION CANNOT BE ACCEPTED. 27. DURING THE APPELLATE PROCEEDINGS, THE ASSESSEE SUBMITTED THAT GIRIRAJ FLAT WAS OCCUPIED BY THE ASSESSEE FOR THE F IRST 9 MONTHS FOR THE SELF OCCUPATION, THEREFORE, ASSESSING OFFICER S HOULD HAVE ALLOWED PROPORTIONATE EXEMPTION. FURTHER, THE ASSESSEE HAD PURCHASED A FLAT AT CRESCENT HEIGHTS CHS IN DECEMBER, 2002 AND SHIFT ED TO THIS NEW FLAT WHICH IS A SELF-OCCUPIED. SHE ALSO FURNISHED P URCHASE AGREEMENT WITH THE CRESCENT HEIGHTS. SINCE THESE WERE NEW FAC TS AND ADDITIONAL EVIDENCES, THE LD. CIT(A) FORWARDED THE SAME TO THE ASSESSING OFFICER FOR SUBMISSION OF THE REMAND REPORT. THE RE LEVANT EXTRACT OF CHANDBIBI ZAIDI ITA NO.358 TO 363/MUM/2014 & ITA NO.1393 TO 1398/MUM/2014 22 WHICH HAVE BEEN INCORPORATED BY CIT(A) IN PARA 9 (P AGE 5 OF THE APPELLATE ORDER). 28. ON PERUSAL OF MATERIAL ON RECORD, THE LD. CIT(A ) HELD THAT IT HAS OPTION OF THE ASSESSEE TO KEEP ONE HOUSE AS SELF-OC CUPIED PROPERTY AND THE BALANCE PROPERTIES HAVE TO BE OFFERED FOR T AXATION UNDER THE HEAD INCOME FROM HOUSE PROPERTY. SINCE ASSESSEE H AS ALREADY EXERCISE THE OPTION AT THE TIME OF FILING OF RETURN OF INCOME, THEREFORE SHE IS BOUND TO ACCEPT THE SAME AS PER THE ASSESSEE S OWN DECLARATION. THE ASSESSEE CANNOT CLAIM THAT NO ALV OF THE PROPERTY CAN BE TAKEN BECAUSE IT WAS DECLARED AS SELF-OCCUPI ED PROPERTY. HE THUS UPHELD THE ALV ESTIMATED BY THE ASSESSING OFFI CER WHICH WAS BASED ON ENQUIRY DONE THROUGH RESPECTIVE CHS. 29. BEFORE US, THE LD. COUNSEL SUBMITTED THAT SINCE THESE PROPERTIES WERE NOT RENTED OUT IN THE ASSESSMENT YEAR IN QUEST ION THEREFORE, THE ALV SHOULD BE TAKEN AS PER THE MUNICIPAL VALUATION, AS HELD IN SEVERAL CASES OF THE MUMBAI TRIBUNAL AS WELL AS BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS TIP TOP TYP OGRAPHY, REPORTED IN 48 TAXMAN.COM 191. THESE PROPERTIES WER E ONLY RENTED OUT IN ASSESSMENT YEAR 2005-06. FURTHER, SO FAR AS CRESCENT HEIGHTS CHS IS CONCERNED, THE SAME WAS PURCHASED IN DECEMBE R, 2002 THEREFORE ONLY THE VALUE OF THE THREE MONTHS SHOULD HAVE BEEN TAKEN. ON THE OTHER HAND, LD. DR RELIED UPON THE FINDING O F THE ASSESSING OFFICER AS WELL AS CIT(A). 30. AFTER HEARING BOTH THE PARTIES, IT IS SEEN THAT OUT OF FIVE FLATS, THE ASSESSEE HAS RENTED OUT TWO FLATS AND ONE HAS BEEN DECLARED AS SELF- OCCUPIED PROPERTY. THE ISSUE IS, WHETHER THE OTHER TWO PROPERTIES I.E. GIRIRAJ APARTMENT AND OCEANIC APARTMENT WHICH HAVE NOT BEEN LET OUT, WHAT SHOULD BE THE ALV. SINCE IT HAS NOT BEEN LET OUT THEN ALV CHANDBIBI ZAIDI ITA NO.358 TO 363/MUM/2014 & ITA NO.1393 TO 1398/MUM/2014 23 CAN BE DETERMINED ON THE BASIS OF MUNICIPAL VALUATI ON, AS HELD BY THE HONBLE BOMBAY HIGH COURT IN THE CASES OF TIP TOP T YPOGRAPHY (SUPRA). ACCORDINGLY, THE ASSESSING OFFICER DIRECTE D TO FOLLOW THE DECISION OF THE HONBLE HIGH COURT FOR DETERMINATIO N OF THE ALV OF THE SAID TWO FLATS. GROUND NO.1 AS RAISED BY THE AS SESSEE IS PARTLY ALLOWED. IN VIEW OF THE ABOVE, THE LD. ASSESSING OFFICER IS DIRECTED TO FOLLOW THE AFORESAID ORDER OF THE TRIBUNAL. 6.2. CONSIDERING THE TOTALITY OF FACTS, ASSERTIONS MADE BY THE RESPECTIVE COUNSEL, WE DIRECT THE LD. ASSESSING OFFICER TO FOLLOW THE DIRECTION CONTAINED IN THE ORDER OF THE TRIBUNAL. 7. SO FAR AS, THE ISSUE OF INTEREST U/S 234B OF TH E ACT ON THE RESPECTIVE AMOUNT IN THE RESPECTIVE ASSESSME NT YEARS IS CONCERNED, THIS GROUND WAS NOT PRESSED BY THE LD . COUNSEL FOR THE ASSESSEE, THEREFORE, THIS GROUND IN THE RES PECTIVE ASSESSMENT YEAR IS DISMISSED AS NOT PRESSED. 8. SO FAR AS, THE ISSUE OF REMUNERATION PAID OF TH E RESPECTIVE AMOUNTS IN THE RESPECTIVE YEARS IS CONCE RNED, IT WAS PLEADED BY THE LD. COUNSEL FOR THE ASSESSEE THAT TH E ISSUE WAS CLAIMED TO BE DEALT WITH BY THE TRIBUNAL IN PARA 9 OF THE ORDER DATED 05/02/2016 FOR ASSESSMENT YEAR 2004-05 AND TH E FACTS CHANDBIBI ZAIDI ITA NO.358 TO 363/MUM/2014 & ITA NO.1393 TO 1398/MUM/2014 24 AND THE ISSUE WAS CLAIMED TO BE IDENTICAL. THE LD. CIT-DR CONSENTED TO THE ASSERTION OF THE ASSESSEE. 8.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW O F THE ABOVE, WE ARE REPRODUCING HEREUNDER THE RELEVANT PORTION F ROM THE AFORESAID ORDER OF THE TRIBUNAL FOR READY REFERENCE :- 9. NOW, WE SHALL TAKE UP APPEAL OF THE REVENUE (I TA NO.1392/MUM/2014), WHEREIN, FIRST GROUND PERTAINS T O DELETING THE DISALLOWANCE MADE ON ACCOUNT OF REMUNERATION OF RS. 3 LAKH STATED TO BE PAID TO WORKERS AND CLAIMED AS EXPENSE FROM THE HONORARIUM/SALARY RECEIVED BY THE ASSESSEE FROM THE UNIONS M/S ENGINEERING MAJDOOR SABHA AND M/S MAJDOOR SABHA WIT HOUT APPRECIATING THE FACT THAT ASSESSEE FAILED TO ESTAB LISH THAT ANY WORK WAS DONE BY THE WORKERS. IDENTICAL ARGUMENT WAS AD VANCED BY THE LD. DR BY PLACING RELIANCE UPON THE ASSESSMENT ORDE R. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE DEFENDED THE CONCLUSION ARRIVED AT IN THE IMPUGNED ORDER BY CONTENDING THAT NOTHING WAS SEIZED DURING SEIZURE OPERATION AND ALLOWED U/S 143 (3) OF THE ACT FOR WHICH OUR ATTENTION WAS INVITED TO PAGES 60 TO 61 O F THE PAPER BOOK CONTAINING ORIGINAL ASSESSMENT ORDER BY FURTHER EXP LAINING THAT THE ASSESSEE PRODUCED THE RECEIPT BEFORE THE ASSESSING OFFICER OF THE WORKERS, WHO COMPLETED THE WORK. HOWEVER, THE LD. D R, BROUGHT TO OUR NOTICE THAT IN THE CASE OF ASSESSEE FOR A.Y. 20 03-04 (ITA NO.2437/MUM/2013 AND ITA NO.1372/MUM/2013) ON IDENT ICAL ISSUE, THE TRIBUNAL, DECIDED THE ISSUE AGAINST THE ASSESSE E. HE REFERRED TO THE ORDER OF THE TRIBUNAL DATED 29/07/2015. IN REPL Y, THE LD. COUNSEL FOR THE ASSESSEE CLAIMED THAT IN THE PRESENT ASSESS MENT YEAR, THE CHANDBIBI ZAIDI ITA NO.358 TO 363/MUM/2014 & ITA NO.1393 TO 1398/MUM/2014 25 PAYMENT HAS BEEN MADE THROUGH CHEQUE, THEREFORE, TH E GENUINENESS OF THE PAYMENT IS NOT IN DISPUTE. 9.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW OF THE AB OVE, WE ARE REPRODUCING HEREUNDER THE RELEVANT PORTION FROM THE AFORESAID ORDER FOR READY REFERENCE:- 31. AS REGARDS ADDITION OF RS.3 LAKHS FOR REMUNERAT ION PAID AS RAISED IN GROUND NO.2, THE ASSESSING OFFICER HAD MA DE THE ADDITION ON THE GROUND THAT THE ASSESSEE HAS CLAIMED TO HAVE PA ID HONORARIUM OF RS. 3 LAKHS TO SOME PERSONS AND CLAIMED DEDUCTION T HEREOF. AT THE TIME OF SEARCH AND SEIZURE ACTION THE ASSESSEE FAILED TO GIVE ANY NAME OF THE RECIPIENT. BEFORE THE ASSESSING OFFICER, THE AS SESSEE HAD STATED THAT SHE HAD MADE PAYMENTS TO VARIOUS PERSONS IN CA SH, OUT OF WHICH, TWO PERSONS HAD APPEARED BEFORE THE ASSESSING OFFIC ER AND STATED THEY WORK FOR THE UNIONS. HOWEVER, THEY COULD NOT E XPLAIN THE NATURE OF WORK DONE FOR THE ASSESSEE. THE ASSESSING OFFICE R FURTHER NOTED OUT OF THE PAYMENT OF RS. 3 LAKHS, THE ASSESSEE COULD F URNISH VOUCHERS FOR RS.25,000/- ONLY, WHICH TOO DOES NOT CONTAIN ANY NU MBER OR THE DETAIL AS TO WHO IS AUTHORIZED TO PAY AND THE PURPOSE OF P AYMENT. ACCORDINGLY, HE DISALLOWED THE PAYMENT OF RS. 3 LAK HS. 32. BEFORE THE CIT(A), THE ASSESSEE SUBMITTED THE D ETAILS OF MONTHLY SALARY, NATURE OF THE WORK DONE BY THE PARTIES FOR THE ASSESSEE AND THE CONFIRMATION OF THE SOME OF THE RECIPIENTS WHO WERE PRODUCED BEFORE THE ASSESSING OFFICER, AND STATED THAT THE ASSESSIN G OFFICER HAS NOT CARRIED OUT ANY ENQUIRY. THE LD. CIT(A) CONFIRMED T HE ADDITION ON THE GROUND THAT REMUNERATION PAID TO CERTAIN PERSONS WH O HAVE ASSISTED TO THE ASSESSEE IN RESPECT OF UNION ACTIVITIES CANN OT BE ALLOWED IN CASE OF THE ASSESSEE BECAUSE SHE HAS EARNED ONLY SALARY INCOME AND HONORARIUM HERSELF AND THERE IS NO PROVISION TO ALL OW SUCH EXPENDITURE FROM SALARY. 33. AFTER HEARING BOTH THE PARTIES, WE FIND THAT NO T ONLY THE ASSESSEE HAS FAILED TO PROVE THE GENUINENESS OF THE PAYMENT BUT ALSO, HOW SUCH A DEDUCTION IS ALLOWABLE TO HER. THE FINDING OF THE CIT(A) THAT THERE IS NO PROVISION UNDER THE HEAD INCOME FROM SALARY TO ALLOW SUCH CHANDBIBI ZAIDI ITA NO.358 TO 363/MUM/2014 & ITA NO.1393 TO 1398/MUM/2014 26 NATURE OF CLAIM TO THE ASSESSEE APPEARS TO BE CORRE CT. THUS, SUCH AN EXPENDITURE CLAIMED BY THE ASSESSEE HAS RIGHTLY BEE N DISALLOWED AND ACCORDINGLY, GROUND NO.2 AS RAISED BY THE ASSESSEE IS DISMISSED. HOWEVER, WE FIND FROM PARA 33 OF THE AFORESAID ORDE R OF THE TRIBUNAL, THAT SINCE, THE ASSESSEE COULD NOT PROVE THE GENUINENESS OF THE PAYMENT, IN THAT SITUATION, THE TRIBUNAL DEC IDED THE ISSUE AGAINST THE ASSESSEE. WHEREAS, IN THE APPEAL BEFORE US, THE ASSESSEE HAS CLAIMED THAT THE PAYMENT WAS MADE THRO UGH CHEQUE. IN VIEW OF THIS FACTUAL POSITION, WE DIRECT THE LD. ASSESSING OFFICER TO EXAMINE THE CLAIM OF THE ASSESSEE AND DECIDE IN ACCORDANCE WITH LAW, THEREFORE, THIS GROUND OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE ONLY. 8.2. IN THE LIGHT OF THE FACTUAL MATRIX AND THE DI RECTION CONTAINED IN THE ORDER OF THE TRIBUNAL DATED 05/02/ 2016, WE DIRECT THE LD. ASSESSING OFFICER TO EXAMINE THE CLA IM OF THE ASSESSEE AND DECIDE AFRESH IN ACCORDANCE WITH LAW. THE ASSESSEE BE GIVEN OPPORTUNITY TO SUBSTANTIATE HER CLAIM, THUS, THIS GROUND OF THE ASSESSEE IS ALLOWED FOR STATISTI CAL PURPOSES. 9. SO FAR AS, LOAN FROM GENESIS IS CONCERNED, THE LD. COUNSEL FOR THE ASSESSEE CLAIMED THAT THIS ISSUE IS ALSO COVERED BY THE DECISION OF THE TRIBUNAL FOR WHICH OUR ATTEN TION WAS INVITED TO PARA 11.2 OF THE ORDER. THE LD. CIT-DR C ONSENTED TO THE CLAIM OF THE ASSESSEE. CHANDBIBI ZAIDI ITA NO.358 TO 363/MUM/2014 & ITA NO.1393 TO 1398/MUM/2014 27 9.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW O F THE ABOVE, WE ARE REPRODUCING HEREUNDER THE RELEVANT PORTION F ROM THE ORDER OF THE TRIBUNAL FOR READY REFERENCE:- 11. THE NEXT GROUND RAISED BY THE REVENUE PERTAIN S TO DELETING THE ADDITION MADE U/S 68 OF THE ACT ON ACC OUNT OF LOAN FROM M/S GENESIS TRADING PVT. LTD. AMOUNTING TO RS.39,48,050 /- WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE COULD NOT E STABLISHED THE CREDITWORTHINESS OF THE M/S GENESIS TRADING PVT. LT D. 11.1. THE CRUX OF ARGUMENT ON BEHALF OF THE REVENU E IS IN SUPPORT TO THE ASSESSMENT ORDER BY INVITING OUR ATTENTION TO P ARA 2.7.27 TO 7.65 (PAGES 23 TO 28 OF THE ASSESSMENT ORDER) AND RELEVA NT FINDING IN PRA 8.5 AND 8.6 (PAGE 51) OF THE IMPUGNED ORDER. ON THE OTH ER HAND, THE LD. COUNSEL FOR THE ASSESSEE EXPLAINED THAT M/S GENESIS TRADING COMPANY IS ASSESSED WITH THE SAME ASSESSING OFFICER. THEY RECE IVED SHARE APPLICATION FROM OUTSIDERS AND THE ASSESSEE RECEIVE D LOAN FROM M/S GENESIS TRADING COMPANY. IT WAS CONTENDED THAT ANY ADDITION, IF ANY, IS TO BE MADE THAT CAN BE MADE IN THE HANDS OF M/S GEN ESIS TRADING COMPANY AND NOT THE ASSESSEE. IT WAS CONTENDED THAT DIRECTORS OF THE COMPANY WERE PRODUCED, ADDITION WAS MADE IN THE HAN DS OF THE COMPANY ALSO AND IN THE CASE OF THE COMPANY, BOOKS OF ACCOUNTS OF SHARE APPLICANTS WERE PRODUCED, CROSS EXAMINATION W ERE DONE, STATEMENTS OF THE DIRECTORS WERE RECORDED AND THEY CONFIRMED THE LOAN. OUR ATTENTION WAS INVITED TO PAGE 295 TO 314 OF THE PAPER BOOK. 11.2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IF THE OBSERVATIO N MADE IN THE ASSESSMENT ORDER, LEADING TO ADDITION MADE TO THE T OTAL INCOME, CONCLUSION DRAWN IN THE IMPUGNED ORDER, MATERIAL AV AILABLE ON RECORD, ASSERTIONS MADE BY THE LD. RESPECTIVE COUNSEL, IF K EPT IN JUXTAPOSITION AND ANALYZED, THERE IS NO DISPUTE TO THE FACT THAT THE AMOUNTS ADDED IN THE HANDS OF THE ASSESSEE ARE ALSO REFLECTED AS LOA NS RECEIVED FROM M/S CHANDBIBI ZAIDI ITA NO.358 TO 363/MUM/2014 & ITA NO.1393 TO 1398/MUM/2014 28 GENESIS TRADING PVT. LTD. AND ALSO IN THE BOOKS OF THE COMPANY. THE LOANS HAVE BEEN ADVANCED BY WAY OF CHEQUE AND THE A DDITION WAS MADE MERELY ON THE GROUND THAT IDENTITY, GENUINENESS AND CREDITWORTHINESS OF M/S GENESIS TRADING PVT. LTD. WAS NOT ESTABLISHED. THE COMPANY WAS CONTROLLED BY THE ASSESSEE AS A DIRECTOR, THEREFORE , THE IDENTITY CANNOT BE DISPUTED. THE ASSESSEE PRODUCED THE EVIDENCE OF ESTABLISHING ALL THE THREE INGREDIENTS OF SECTION 68, PRODUCED THE DIREC TORS OF THE INVESTING COMPANY, WHO HAVE CONFIRMED THE TRANSACTION, THEREF ORE, WE FIND MERIT IN THE CONCLUSION OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) THAT NO ADDITION IS WARRANTED. WE HAVE ALSO PERUSED THE STATEMENT OF DIRECTORS OF THE COMPANY, WHO HAVE DULY CONFIRMED T HE LOAN. EVEN OTHERWISE, THE CREDIT HAS ALREADY BEEN ASSESSED IN THE HANDS OF THE M/S GENESIS TRADING PVT. LTD, NO DOUBLE ADDITION IS PER MITTED, THUS, WE AFFIRM THE STAND OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS), RESULTING INTO DISMISSAL OF APPEAL OF THE REVENUE. 9.2. WE FIND THAT THE TRIBUNAL HAS DELIBERATED UPO N THE ISSUE AND FINALLY FOUND THAT NO DOUBLE ADDITION IS PERMITTED AND DISMISS THE APPEAL OF THE REVENUE. CONSIDERING THE TOTALITY OF FACTS, WE DIRECT THE LD. ASSESSING OFFI CER TO FOLLOW THE AFORESAID ORDER OF THE TRIBUNAL. 10. SO FAR AS, THE ISSUE OF ADDITIONAL GROUND FOR ASSESSMENT YEAR 2007-08 AND 2008-09 WITH RESPECT TO INCOME FROM VACANT FLAT IS CONCERNED, THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT INADVERTENTLY THIS GROUND COULD NOT BE TAKEN, WHILE FILING THE APPEAL. CONSIDERING THE TOTALITY O F FACTS, THE LD. ASSESSING OFFICER IS DIRECTED TO FOLLOW THE DIRECTI ON OF THE CHANDBIBI ZAIDI ITA NO.358 TO 363/MUM/2014 & ITA NO.1393 TO 1398/MUM/2014 29 TRIBUNAL CONTAINED IN THE ORDER OF THE TRIBUNAL DAT ED 05/02/2016 ON THE ISSUE IN HAND. 11. SO FAR AS THE ISSUE OF DEPOSITS OF RELATIVES I S CONCERNED, THIS ISSUE HAS DELIBERATED UPON BY THE T RIBUNAL IN PARA 4.2 FOR ASSESSMENT YEAR 2004-05, ORDER DATED 05/02/2016, THEREFORE, THE LD. ASSESSING OFFICER IS DIRECTED TO FOLLOW THE DIRECTIONS CONTAINED THEREIN. FINALLY, THE APPEALS OF THE ASSESSEE AS WELL AS OF THE REVENUE ARE DISPOSED OF IN TERMS INDICATED HEREINAB OVE. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 30/05/2015. SD/- SD/- ( RAJENDRA ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER # $ MUMBAI; ( DATED : 14/06/2016 F{X~{T? P.S/. .. %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. *+,- / THE APPELLANT 2. ./,- / THE RESPONDENT. 3. 0 0 # 1! ( *+ ) / THE CIT, MUMBAI. 4. 0 0 # 1! / CIT(A)- , MUMBAI CHANDBIBI ZAIDI ITA NO.358 TO 363/MUM/2014 & ITA NO.1393 TO 1398/MUM/2014 30 5. 3'4 .! , 0 *+& * 5 , # $ / DR, ITAT, MUMBAI 6. 6 7$ / GUARD FILE. / BY ORDER, /3+! .! //TRUE COPY// / (DY./ASSTT. REGISTRAR) , # $ / ITAT, MUMBAI