NEXUS BUILDERS & DEVELOPERS P. LTD, MUMBAI V. ACIT (OSD) 2(2), MUMBAI

ITA 1484/MUM/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8669 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-01-2017
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 03-12-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 22-02-2013
• Court: TRIBUNAL
• Department Lawyers: RAMAPRIYA RAGHVANDR
• Assessee Lawyers: S C TIWARI; RUTUJA PAWAR
• Keywords: Business income; Question of law; Valuation report; Block assessment; Onus to prove
• Section: 133A; 132

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, B MUMBAI , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ITA NO.1484/MUM/2013 ASSESSMENT YEAR: 2009-10 NEXUS BUILDERS & DEVELOPERS PVT. LTD. HOUSE, 02 ND FLOOR, 11/A, NATHALAL PAREKH MARG, COLABA, MUMBAI-400039 / VS. ACIT-OSD-2(2), AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020 ( /ASSESSEE) ( ' / REVENUE) PAN. NO.AAACN2071P # '$ % & / DATE OF HEARING : 24/01/2017 % & / DATE OF ORDER: 31/01/2017 !' / ASSESSEE BY SHRI S.C. TIWARI & MS. RUTUJA PAWAR ' !' / REVENUE BY SMT. RAMAPRIYA RAGHVAN-DR ITA NO. 1484/MUM/2013 NEXUS BUILDERS & DEVELOPERS PVT. LTD. 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 10/12/2012 OF THE LD. FIRST APPELLATE AUTHORI TY, MUMBAI. THE ASSESSEE HAS FILED CONCISE GROUNDS OF A PPEAL, WHEREIN, THE FIRST GROUND PERTAINS TO TREATING THE AMOUNT OF RS.8,55,000/- AS UNDISCLOSED INCOME OF THE ASSESSEE BY WAY OF ALLEGED SUPPRESSION OF RECEIPTS FROM MR. DEV ENDRA SINGH TOMAR. 2. DURING HEARING, SHRI S.C. TIWARI, LD. COUNSEL FOR THE ASSESSEE ALONG WITH MS. RUTUJA PAWAR, EXPLAINE D THAT, AS PER REVENUE, ONE CD WAS FOUND AND LARGE NUMBER O F LETTERS (219 LETTERS) TO BUYERS OF FLATS WERE ISSUE D ASKING THEM TO MAKE THE PAYMENTS. MR. TIWARI, EXPLAINED TH AT IN ONE CASE, THE AMOUNT MENTIONED WAS TOWARDS HIGHER S IDE ON THE BASIS OF WHICH LETTERS WERE ISSUED TO ALL TH E BUYERS. OUR ATTENTION WAS INVITED TO THE OBSERVATION MADE A T PAGE- 2 OF THE ASSESSMENT ORDER AND REPLY OF THE ASSESSEE AT PAGE-3. IT WAS ASSERTED THAT THERE WAS NO CO-RELAT ION MADE IN THE PRICES AND REMINDER WAS SEND AT THE RATE WHI CH WAS CANCELLED. THE LD. COUNSEL INVITED OUR ATTENTION T O THE AFFIDAVIT OF THE BUYER (PAGE17 OF THE PAPER BOOK) A ND AFFIDAVIT OF DIRECTOR (PAGE-12 OF THE PAPER BOOK) A LONG WITH PAGE-4 (LETTER OF CANCELATION) AND PAGES 23 & 24 (B ANK STATEMENT SHOWING THE AMOUNT RETURNED TO EARLIER BU YER- MILIND BHINGARE). IT WAS EXPLAINED THAT THE LETTER IS MERELY A REMINDER AND NOT A FORMAL DOCUMENT LIKE AGREEMENT . IT ITA NO. 1484/MUM/2013 NEXUS BUILDERS & DEVELOPERS PVT. LTD. 3 WAS CONTENDED THAT THERE WAS NO OTHER MATERIAL FOUN D FOR JUSTIFYING THE ADDITION. THE LD. COUNSEL FURTHER CO NTENDED THAT THE EXPLANATION OF THE ASSESSEE IS SUPPORTED B Y BANK ACCOUNT, BOOKS OF ACCOUNTS, REGISTERED SALE DEED, E TC. IT WAS EXPLAINED THAT THE PRICE, WHICH WAS QUOTED BY THE A SSESSEE TO THE NEW BUYER IS SUPPORTED BY VALUATION REPORT O F SUB- REGISTRAR (PAGE-63 OF THE PAPER BOOK). THE CRUX O F THE ARGUMENT IS THAT THERE WAS NO EVIDENCE FOUND AGAINS T THE ASSESSEE AND NO ENQUIRY WAS CARRIED OUT BY THE ASSE SSING OFFICER, SO THE ADDITION MADE ON HYPOTHETICAL BASIS IS NOT JUSTIFIED. SO FAR AS, RELIANCE MADE UPON THE DECISI ON IN THE CASE OF CST VS H.M. ESUFALI H.M. ABDULALM 90 ITR 27 1 (SC) IS ON DIFFERENT FACTS BY ASSERTING THAT THE BASIS O F ADDITION IS VERY SHAKY. RELIANCE WAS PLACED UPON THE DECISI ON FROM HON'BLE JURISDICTIONAL HIGH COURT IN CIT VS DR. M.K . E. MENON (2001) 248 ITR 310 (BOM.) AND CIT VS AERO CLU B (2011) 336 ITR 400 (DEL.). IT WAS CONTENDED THAT N O FRUITFUL ENQUIRY WAS MADE BY THE ASSESSING OFFICER INTO THE FACTS OF THE CASE, WHEREAS, VOLUMINOUS RECORD WAS MAINTAINED BY THE ASSESSEE AND PRODUCED BEFORE THE ASSESSING OFFI CER. THE SALE WERE CLAIMED TO BE SUPPORTED BY REGISTERED DOCUMENTS. SO FAR AS, PRICES OF THE FLAT IS CONCERN ED, THE LD. COUNSEL EXPLAINED THAT THE PRICES DEPENDS UPON SO M ANY FACTORS LIKE DEMAND AND SUPPLY, MARKET CONDITIONS, LOCATION, SIDE OF THE FLAT, LIKE SEA FACING, PARK F ACING, OR SLUM FACING, ETC. THE LD COUNSEL CONTENDED THAT THE APPARENT STATE OF FACTS IS TRUE UNLESS REBUTTED BY MATERIAL. FOR WHICH, RELIANCE WAS PLACED UPON THE DECISION IN ITA NO. 1484/MUM/2013 NEXUS BUILDERS & DEVELOPERS PVT. LTD. 4 COMMISSIONER OF INCOME TAX VS. DAULAT RAM RAWATMULL 87 ITR 349 (SC), COMMISSIONER OF INCOME TAX VS. U.M. SHAH, PROPRIETOR, SHRENIK TRADING CO. 90 ITR 396 (BOM.) AND COMMISSIONER OF INCOME TAX VS. BEDI & CO. PVT. LTD. 230 ITR 580 (SC ). 2.1. ON THE OTHER HAND, THE LD. DR, MS. RAM PRIYA RAGHVAN, CONTENDED THAT STATEMENT WAS RECORDED FOR WHICH OUR ATTENTION WAS INVITED TO PAGE-6 OF THE PAPER BO OK AND THERE WAS NO EVIDENCE ON RECORD THAT MR. TOMAR NEGO TIATED THE PRICE ON SUCH A DOWN PAYMENT AND THERE WAS NO R EASON OF SHARP FALL IN PRICES. IT WAS CONTENDED THAT THE RE WAS NO EVIDENCE, PUT ON RECORD BY THE ASSESSEE, CONTRAVENI NG THE STAND TAKEN IN THE ASSESSMENT ORDER. 2.2. IN REPLY, THE LD. COUNSEL FOR THE ASSESSEE, ASSERTED THAT THE ASSESSING OFFICER DID NOT RECORD THE STATEMENT OF ANY PERSON/BUYER EVEN AFTER AFFIDAVIT WAS FILED BY THE ASSESSEE BY CONTENDING THAT UNLESS AND UNTIL ACTUAL MONEY IS GIVEN/TRANSACTED, THERE IS NO EVIDENCE ON RECORD ON THE BASIS OF WHICH ADDITION CAN BE MADE. 2.3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE DECLARED INCOME OF RS.10,70,7 4,750/- ALONG WITH REQUIRED ANNEXURE ON 26/09/2009. THE C ASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY; THEREFORE, A DETAILED QUESTIONNAIRE WAS ISSUED TO THE ASSESSEE FOR COMPLI ANCE. THE ASSESSEE FILED THE NECESSARY DETAILS, INFORMATI ON AND ITA NO. 1484/MUM/2013 NEXUS BUILDERS & DEVELOPERS PVT. LTD. 5 EXPLANATION CALLED FOR BY THE ASSESSING OFFICER. A SEARCH ACTION U/S 132 OF THE ACT WAS CARRIED OUT IN THE CA SE OF GALA SHARMA SIDDHI GROUP ON 28/08/2008. ALONG WIT H THE SEARCH, ONE OF THE PREMISES OF THE ASSESSEE WAS COV ERED U/S 133A OF THE ACT. AS PER THE REVENUE, ONE CD, COMPR ISING VARIOUS CORRESPONDENCES, BOOKS OF ACCOUNTS AND DOCUMENTS, WAS IMPOUNDED AND LATER ON DURING THE CO URSE OF ASSESSMENT, ITS CONTENTS WERE VIEWED. ON PERUSA L OF THE CD, AS PER THE REVENUE, AMONGST OTHERS, ONE LETTER IN RESPECT OF SALE TRANSACTION WITH MR. DEVENDRA SINGH TOMAR (FLAT PURCHASER) WAS FOUND. ACCORDING TO THE ASSES SING OFFICER, THE LETTER DATED 08/08/2008, RETURN TO MR. DEVENDRA SINGH TOMAR, BY THE ASSESSEE, SHOWED THAT THE SALE PRICE, PAYABLE BY MR. DEVENDRA SINGH TOMAR IS RS.57,73,000/- TOWARDS THE PURCHASE OF FLAT, WHEREA S, THE AGREEMENT VALUE WITH REFERENCE TO THE SAME WAS RS.49,18,000/- AND THUS THE ASSESSEE WAS CALLED TO EXPLAIN AS TO WHY:- (I) WHY THE DIFFERENCE OF RS.8,55,000/- IN THE SALE PRICE AS PROJECT HEREIN BEFORE IN THE CASE OF SHRI DEVEND RA SINGH TOMAR SHOULD NOT BE ADDED TO THE TOTAL INCOME OF THE ASSESSEE AND (II) FURTHER THE SAME PROPORTION SHOULD NOT BE ADO PTED FOR THE OTHER FLATS SOLD DURING THE YEAR 2008-09 . 2.4. IN REPLY, THE ASSESSEE VIDE LETTER DATED SUPP ORTED BY AN AFFIDAVIT OF SHRI GAUTAM G. KABRA, INTER-ALIA ITA NO. 1484/MUM/2013 NEXUS BUILDERS & DEVELOPERS PVT. LTD. 6 EXPLAINING THE DISCREPANCY, LETTER DATED 19/12/2011 , ANNEXED WITH AFFIDAVIT OF MR. DEVENDRA SINGH TOMAR, REINFORCED THE STAND OF THE ASSESSEE AND LETTER DAT ED 23/12/2011 ENCLOSING THEREIN LETTER DATED 30/05/200 8 AND BANK STATEMENT TOWARDS RECEIPT OF BOOKING MONEY AND THE REFUND OF THE SAME ON CANCELATION OF FLAT BY ERSTWHILE/FORMER FLAT PURCHASER MS. MILIND BHINGARE EXPLAINED THE FACTUAL MATRIX. HOWEVER, THE LD. ASS ESSING OFFICER DID NOT COUNTENANCE THE ARGUMENT OF THE ASS ESSEE, BRUSHING ASIDE THE AFFIDAVITS, AVERMENTS OF THE ASS ESSEE AND MADE THE ADDITION OF RS.8,55,000/- , PERTAININ G TO SHRI DEVENDRA SINGH TOMAR AND FURTHER MADE ADDITION OF RS.2,97,34,980/-, PERTAINING TO OTHER FLATS SOLD DU RING THE ASSESSMENT YEAR UNDER CONSIDERATION. 2.5. THE AGGRIEVED ASSESSEE CHALLENGED THE MATTER BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEAL). HOWEVER, THE LD. COMMISSIONER OF INCOME TAX (APPEAL ) AFFIRMED THE STAND TAKEN IN THE ASSESSMENT ORDER. THE ASSESSEE IS IN APPEAL BEFORE THIS TRIBUNAL. 2.6. 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, ASSERTIONS MADE BY THE LD. RESPECTIVE COUNSEL, IF K EPT IN JUXTAPOSITION AND ANALYZED, WE FIND THAT THE ASSESS EE VIDE LETTER DATED 16/12/2011 MADE CERTAIN SUBMISSIONS AN D THE PART OF WHICH HAS BEEN REPRODUCED AT PAGE-3 ONWARDS OF THE ASSESSMENT ORDER. AS PER THE REPLY, FLAT NO. 10 1 WAS ITA NO. 1484/MUM/2013 NEXUS BUILDERS & DEVELOPERS PVT. LTD. 7 BOOKED BY MR. DEVENDRA SINGH TOMAR IN JULY, 2008 AN D THE TERMS AND CONDITIONS OF ALL THE BUYERS ARE SAME AS PER THE POLICY OF THE ASSESSEE COMPANY. BUILDING NO. D2 WAS UNDER CONSTRUCTION AND THE ASSESSEE ASKED THE PURCH ASER FOR INSTALMENTS AT CERTAIN STAGES AS LAID DOWN IN MAHARASHTRA OWNERSHIP FLATS RULES 1964. AS PER THE ASSESSEE, ON COMPLETION OF EACH STAGE, THE PURCHASE RS ARE INFORMED IN WRITING WITH RESPECT TO INSTALMENTS TO BE PAID BY THEM ALONG WITH THE DETAILS, LIKE STAGE OF COMPL ETION, AMOUNT DUE, OUTSTANDING DUES, TOTAL DUES, ETC. IT IS NOTED THAT THE ADDITION OF RS.8,55,000/- WAS MADE BY THE ASSESSING OFFICER IN THE CASE OF SHRI DEVENDRA SING H TOMAR AND ACCORDINGLY PROPORTIONATE ADDITION IN THE CASES OF REMAINING BUYERS. DURING ASSESSMENT PROCEEDINGS, T HE ASSESSEE WAS ASKED TO CLARIFY/EXPLAIN THE DIFFERENT IAL AMOUNT MENTIONED IN THE SAID LETTER VIS-A-VIS MENT IONED IN THE AGREEMENT. THE ASSESSEE EXPLAINED THE DIFFERENC E AND ALSO FILED AN AFFIDAVIT OF SHRI GAUTAM KABRA. AN AF FIDAVIT WAS ALSO FILED FROM SHRI DEVENDRA SINGH TOMAR EXPLA INING THE FACTUAL MATRIX. THE RELEVANT EXTRACT OF THE CO NTENTS OF THE LETTER OF SHRI GAUTAM KABRA ARE REPRODUCED HERE UNDER:- '6. I HAD NEGOTIATED FLAT NO. 101 IN WING D-2 WITH ONE MR. MILIND BHINGARE FOR A SUM OF RS. 59,34, 000/-. THE SAID PARTY PAID TOKEN MONEY OF RS.1,00,000 / - ON OR AROUND 16.05.2008 . HOWEVER, HE CANCELLED THE BOOKING ON THE GROUND THAT THE PRICE AGREED WAS MUC H HIGHER THAN THE RATE PREVAILING IN THE SURROUNDINGS. WE REPAID THE SUM OF RS . 1,00,000 / - ON OR AROUND 30.05.2008. 7 . MR. DEVENDRA SINGH TOMAR APPROACHED US SOMEWHERE IN JULY 2008 AND INQUIRED FOR THREE BED ROOM HALL KITCHEN (3 BHK) FLAT IN OUR PROJECT AT A REASONABLE VALUE . HE WAS NOT TOO INCLINED FOR HIGHER FLOOR AND PROBABLY 1ST FLOOR SUITED HIS REQUIREMENT . ITA NO. 1484/MUM/2013 NEXUS BUILDERS & DEVELOPERS PVT. LTD. 8 8. HE NEGOTIATED WITH US FOR SOME TIME AND AFTER SE VERAL MEETINGS THE PRICE FOR THE FLAT WAS AGREED AT RS . 4 9,18,000 / - WITH TERMS AND CONDITIONS AS APPLICABLE IN GENERAL TO ALL THE PART IES . HE AGREED TO PAY TOKEN OF RS.1,00,000/- WHICH WAS PAID BY HIM IMMEDI ATELY . 9 . AS A POLICY, WE COMMUNICATE TO ALL THE FLAT OWNERS ON COMPLETION OF EACH STAGE AND CALL FOR THE INSTALMENT NEXT DUE WIT H OUTSTANDING AMOUNT, IF ANY . ACCORDINGLY, WE SENT THE LETTERS TO ALL THE FLAT HO LDERS INCLUDING MR. TOMAR . IN THE LETTER WE INADVERTENTLY, MENTIONED THE PRICE AGREED WITH THE ERSTWHILE BUYER. 10 .. MR . TOMAR APPROACHED OUT: OFFICE INQUIRING ABOUT THE CO NTENTS OF THE LETTER . WE EXPLAINED TO HIM THE MISTAKE COMMITTED FROM OUR OFFICE AND REQUESTED HIM TO IGNORE THE LETTER. HOWEVER, BE FORE WE COULD AMEND THE LETTER AND SENT FRESH LETTER, THERE WAS S URVEY AT OUR PREMISES AND DOCUMENTS AND DATA WERE SEIZED. 11 . MR . TOMAR REQUESTED 2 MONTHS TIME TO MAKE FULL PAYMENT IN THE MONTH OF MARCH 2009 AS HE HAD TO OBTAIN BANK LOAN . THE AGREEMENT WITH MR. TOMAR WAS SIGNED AND REGISTERED WITH SUB R EGISTRAR , THANE . 12 . MR. TOMAR PAID THE BALANCE AMOUNT OF RS . 48, 18, 000 1 - IN THREE INSTALMENTS IN THE MONTH OF MAY 2009 . 13. I ALSO STATE THAT WE HAVE NOT RECEIVED ANY AMOU NT TOWARDS SALE CONSIDERATION ON OUR ABOVEMENTIONED FLAT OVER AND A BOVE RS . 49 , 18, 000 / - AS AGREED MUTUALLY WITH MR . TOMAR . ' 2.7. THE LETTER OF MR. DEVENDRA SINGH TOMAR ALONG WITH AFFIDAVIT WAS FILED. THE RELEVANT EXTRACT OF T HE AFFIDAVIT ARE REPRODUCED HEREUNDER:- ' 3 . I SAY THAT I PURCHASED RESIDENTIAL FLAT ADMEASURING A ROUND 1290 SQUAR E FEET AT THANE IN THE BUILDING NAMED HYDE PARK , BUILDING NO D-2, FLAT NO 101 ON THE 1 ST FLOOR FROM M / S. NEXUS BUILDERS & DEVELOPERS PVT . LTD. ( ' THE COMPANY') FOR A LUMPSUM CONSIDERATION OF RS. 49 ,18,000 / -. 4 . I HAD APPROACHED THE SAID COMPANY SOMEWHER E IN JULY 2008 TO INQUIRE THE PRICE OF THE FLAT . AFTER SEVERAL M E ETINGS AND DISCUSSION WE AGREED AT A PRICE OF (RS. 49 , 18 , 000 / -. I PAID A SUM OF RS . 11, 000 / - ON OR AROUND 08.0 7 .2008 AND RS.89,000 / - ON OR AROUND 15 . 06.2008 AGGREGATING TO R S . 1,00 , 000 / - AS TOKEN MONEY FOR BOOKING OF THE SAID FLAT. 5 . THE TERMS AND CONDITIONS WHICH INCLUDED , AMONGST OTHERS, SCHEDULE OF PAYMENT AND PERCENTAGE OF PAYMENT ON COMPLETION OF SLABS AND CERTAIN ITA NO. 1484/MUM/2013 NEXUS BUILDERS & DEVELOPERS PVT. LTD. 9 EVENTS WERE DISCUSSED AND AGREED UPON . 6. ON OR AROUND AUGUST 08,2008, I RECEIVED LETTER F ROM THE COMPANY, DEMANDING RS . 4,31,000 / - AS AN INSTALMENT FOR COMPLETION OF TOP SLAB AND OUTSTANDING AMOUNT OF RS.51,00, 000 / - TILL DATE AGGREGATING TO RS. 55,31, 000 / -. I INFORMED THE COMPANY ABOUT OUR AGREED PRICE AN D WAS INFORMED TO IGNORE THE LETTER AS THE FIGURES APPEARING IN TH E LETTER PERTAINED TO THEIR ERSTWHILE DEAL . 7 . THE AGREEMENT WAS SIGNED AND REGISTERED WITH SUB RE GISTRAR, THANE, I FURTHER STATE THAT, I HAVE NOT PAID ANY AMOUNT TO WARDS PURCHASE CONSIDERATION OF MY ABOVE MENTIONED FLAT OVER AND A BOVE RS. 49, 18, 0001- AS AGREED MUTUALLY BY ME WITH THE COMPANY. 8. AS AGREED I PAID THE TOTAL CONSIDERATION OF THE BALANCE AMOUNT IN THREE INSTALMENTS VIS-A-VIS RS . 1,18,000 / - ON OR AROUND 06 . 05.2009 , RS.20,00,000 / - ON OR AROUND 07 . 05.2009 AND RS.27,00 , 000 / - ON OR AROUND 10.05.2009 AGGREGATING TO RS. 48,18 , 000 / - . 2.8. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) A) WAS OF THE VIEW THAT MERE FILING OF AN AFFIDAVIT IS NOT ENOUGH; THEREFORE, HE SUSTAINED THE ADDITION. SHRI KABRA EXPLAINED THE FACTUAL MATRIX BY SAYING THAT HE NEGO TIATED FLAT NO.101 WITH MR. MILIND BHINGARE FOR A SUM OF RS.59,34,000/- AND THE PARTY PAID TOKEN MONEY OF RS .1 LAKH ON OR AROUND 16/05/2008. THE BOOKING WAS CANCE LLED ON THE GROUND THAT THE AGREED PRICE WAS MUCH HIGHER THAN PREVAILING IN THE MARKET. THE AMOUNT OF RS.1 LAKH W AS REPAID ON OR AROUND 30/05/2008. SHRI DEVENDRA SINGH TOMAR APPROACHED THE ASSESSEE IN JULY 2008 AND HE T OO WAS NO INCLINED FOR HIGHER FLOOR. SHRI TOMAR NEGOTI ATED WITH THE ASSESSEE AFTER SEVERAL MEETINGS AND THE FLAT WA S AGREED TO BE SOLD FOR RS.49,18,000/- WITH TERMS AND CONDIT IONS AS APPLICABLE TO THE REMAINING ALL PARTIES AND HE PAID RS.1 LAKH IMMEDIATELY. THE PRICE MENTIONED IN THE LETTE R OF MR. TOMAR WAS EXPLAINED TO BE INADVERTENTLY ISSUE MENTI ONING ITA NO. 1484/MUM/2013 NEXUS BUILDERS & DEVELOPERS PVT. LTD. 10 THE PRICE WITH THE ERSTWHILE BUYER. MR. TOMAR REQUE STED FOR TIME TILL MARCH 2009 AS HE HAS OBTAINED BANK LOAN. THE AGREEMENT WITH MR. TOMAR WAS SIGNED AND REGISTERED WITH SUB-REGISTRAR, THANE. MR. TOMAR PAID THE BALANCE AM OUNT OF RS.48,18,000/- IN THREE INSTALMENTS IN THE MONTH OF 2009. IN THE AFFIDAVIT, IT WAS SPECIFICALLY SWORN THAT NO UNDERHAND AMOUNT WAS RECEIVED EXCEPT THE TOTAL AMOU NT OF RS.49,18,000/- AS MUTUALLY AGREED WITH MR. TOMAR. M R. TOMAR ALSO FILED AN AFFIDAVIT SUBSTANTIATING THE FA CTUAL MATRIX AS DISCUSSED HEREINABOVE. THE TOTALITY OF FA CTS CLEARLY INDICATES THAT THE ASSESSEE DISCHARGED HIS ONUS AND THE ASSESSING OFFICER NEITHER RECORDED THE STATEMEN T OF MR. TOMAR NOR BROUGHT ON RECORD ANY EVIDENCE IN SUPPORT OF THE ADDITION. IT WAS THE DUTY OF THE ASSESSING OFFI CER TO SUPPORT HIS VIEW EITHER BY BRINGING ANY EVIDENCE, P ROVING THAT THE MARKET RATE AT A PARTICULAR TIME WAS MUCH HIGHER OR ANY EVIDENCE EITHER FROM THE SAME BUILDING OR FR OM THE NEARBY BUILDING THAT ANY IDENTICAL FLAT WAS SOLD/PU RCHASED AT A HIGHER VALUE. EVEN THE ASSESSING OFFICER NEVE R RECORDED THE STATEMENT FROM ANY OF THE REMAINING BU YERS TO SUBSTANTIATE HIS ADDITION. THE VALUE MENTIONED IN T HE REGISTERED SALE DOCUMENT WAS NEITHER FOUND TO BE FA LSE NOR ANY OTHER DOCUMENT WAS BROUGHT ON RECORD CONTRADICT ING THE CLAIM OF THE ASSESSEE. WHEN THE ASSESSEE EXPLAI NED THE FACTUAL MATRIX SUPPORTED BY EVIDENCES LIKE REGISTER ED SALE DEED, SUPPORTED BY THE AFFIDAVITS, THEN IT WAS THE DUTY OF THE ASSESSING OFFICER EITHER TO CONTRADICT THE SAME OR TO BRING ANY EVIDENCE IN SUPPORT OF THE PRESUMPTIVE AD DITION ITA NO. 1484/MUM/2013 NEXUS BUILDERS & DEVELOPERS PVT. LTD. 11 MADE BY HIM. WE ARE OF THE VIEW THAT PRESUMPTION CA NNOT TAKE THE SHAPE OF THE EVIDENCE, HOWEVER STRONG IT M AY BE. EVEN OTHERWISE, A SINGLE CASE CANNOT BE THE BASIS F OR MAKING THE ADDITION IN THE CASES OF REMAINING BUYER S. RATHER, THE SITUATION IS IN FAVOUR OF THE ASSESSEE BECAUSE IN THE CASES OF REMAINING BUYERS, THE VALUE/PRICE MENT IONED IN THE REGISTERED DOCUMENTS HAS TO BE ACCEPTED IN T HE CASE OF ONE SINGLE BUYER I.E. MR. DEVENDRA SINGH TOMAR, WHO NEGOTIATED WITH THE ASSESSEE AT THE PRICE, WHICH WA S MENTIONED IN THE REGISTERED SALE DEED. THE REMAINI NG BUYERS ALSO MADE THE PAYMENTS AS MENTIONED IN THE REGISTERED SALE DEEDS. THE EARLIER PERSON, MR. MILI ND BHINGARE, WHO FOUND THE RATE AT THE HIGHER SIDE, TH EREFORE, HE CANCELLED THE AGREEMENT. THUS, THE ONUS CAST UPO N THE ASSESSEE WAS DULY DISCHARGED. RATHER, THE ONUS CAST UPON THE ASSESSING OFFICER WAS NEVER DISCHARGED AND HE P ICKED UP ONE LETTER FROM 219 BUYERS AND MADE PROPORTIONAT E ADDITION IN THE HANDS OF THE ASSESSEE FOR THE REMAI NING BUYERS ALSO. THIS TYPE OF APPROACH CANNOT BE SAID T O BE JUSTIFIED UNLESS AND UNTIL THE SAME IS SUBSTANTIATED WITH EVIDENCE. OUR VIEW FINDS SUPPORT FROM THE DECISION FROM HON'BLE APEX COURT IN COMMISSIONER OF INCOME TAX VS. DAULAT RAM RAWATMULL 87 ITR 349 (SC), WHEREIN, IT WAS HELD AS UNDER:- HELD : FINDINGS ON QUESTIONS OF PURE FACT ARRIVED AT BY TH E TRIBUNAL ARE NOT TO BE DISTURBED BY THE HIGH COURT ON A REFERENC E UNLESS IT APPEARS THAT THERE WAS NO EVIDENCE BEFORE THE TRIBU NAL UPON WHICH THEY, AS REASONABLE MEN, COULD COME TO THE CO NCLUSION TO ITA NO. 1484/MUM/2013 NEXUS BUILDERS & DEVELOPERS PVT. LTD. 12 WHICH THEY HAVE COME; AND THIS IS SO, EVEN THOUGH T HE HIGH COURT WOULD ON THE EVIDENCE HAVE COME TO A CONCLUSI ON ENTIRELY DIFFERENT FROM THAT OF THE TRIBUNAL. IN OTHER WORDS , SUCH A FINDING CAN BE REVIEWED ONLY ON THE GROUND THAT THE RE IS NO EVIDENCE TO SUPPORT IT OR THAT IT IS PERVERSE. FURT HER, WHEN A CONCLUSION HAS BEEN REACHED ON AN APPRECIATION OF A NUMBER OF FACTS, WHETHER THAT IS SOUND OR NOT MUST BE DETERMI NED, NOT BY CONSIDERING THE WEIGHT TO BE ATTACHED TO EACH SINGL E FACT IN ISOLATION, BUT BY ASSESSING THE CUMULATIVE EFFECT O F ALL THE FACTS IN THEIR SETTING AS A WHOLE. WHEN A COURT OF FACT A CTS ON MATERIAL PARTLY RELEVANT AND PARTLY IRRELEVANT, IT IS IMPOSS IBLE TO SAY TO WHAT EXTENT THE MIND OF THE COURT WAS AFFECTED BY T HE IRRELEVANT MATERIAL USED BY IT IN ARRIVING AT ITS FINDING. SUC H A FINDING IS VITIATED BECAUSE OF THE USE OF INADMISSIBLE MATERIA L AND THEREBY AN ISSUE OF LAW ARISES. LIKEWISE, IF THE COURT OF F ACT BASES ITS DECISION PARTLY ON CONJECTURES, SURMISES AND SUSPIC IONS AND PARTLY ON EVIDENCE, IN SUCH A SITUATION AN ISSUE OF LAW ARISES. SREE MEENAKSHI MILLS LTD. VS. CIT (1957) 31 ITR 28 (SC) : TC54R.211#1, DHIRAJLAL GIRDHARILAL VS. CIT (1954) 2 6 ITR 736 (SC) : TC54R.297, MEHTA PARIKH & CO. VS. CIT (1956) 30 ITR 181 (SC) : TC54R.300 FOLLOWED; EDWARDS (INSPECTOR OF TAXES) VS. BAIRSTOW (1955) 36 TAX CASE 207 : (1955) 28 ITR 579 (HL) APPLIED . CONCLUSION : FINDINGS ON QUESTIONS OF PURE FACT ARRIVED AT BY TH E TRIBUNAL ARE NOT TO BE DISTURBED BY THE HIGH COURT ON A REFERENC E UNLESS IT APPEARS THAT THERE WAS NO EVIDENCE BEFORE THE TRIBU NAL UPON WHICH THEY, AS REASONABLE MEN, COULD COME TO THE CO NCLUSION TO WHICH THEY HAVE COME; AND THIS IS SO, EVEN THOUGH T HE HIGH COURT WOULD ON THE EVIDENCE HAVE COME TO A CONCLUSI ON ENTIRELY DIFFERENT FROM THAT OF THE TRIBUNAL. BENAMIBENAMI PROPERTY FIXED DEPOSIT IN THE NAME OF SON OF PARTNERMERELY BECAUSE THE EXPLANATION WAS FOUND FALSE, IT CANNOT BE HELD THAT THE FIRM WHICH OPERATED AN OVERDRAFT ACCOUNT AGAINST SECURITY OF S UCH DEPOSIT OWNER THE MONEY HELD : THE FALSITY OF BS EXPLANATION IN THE OPINION OF TH E HIGH COURT, DID NOT WARRANT THE CONCLUSION THAT THE AMOUNT OF R S. 5,00,000 BELONGED TO THE ASSESSEE. THERE IS NO FLAW OR INFIR MITY IN THE ABOVE REASONING OF THE HIGH COURT. THE QUESTION WHI CH AROSE FOR DETERMINATION IN THIS CASE WAS NOT WHETHER THE AMOU NT OF RS. 5,00,000 BELONGED TO B BUT WHETHER IT BELONGED TO T HE RESPONDENT-FIRM. THE FACT THAT B HAS NOT BEEN ABLE TO GIVE A SATISFACTORY EXPLANATION REGARDING THE SOURCE OF RS . 5,00,000 WOULD NOT BE DECISIVE EVEN OF THE MATTER AS TO WHET HER B WAS OR ITA NO. 1484/MUM/2013 NEXUS BUILDERS & DEVELOPERS PVT. LTD. 13 WAS NOT THE OWNER OF THAT AMOUNT. A PERSON CAN STIL L BE HELD TO BE THE OWNER OF A SUM OF MONEY EVEN THOUGH THE EXPL ANATION FURNISHED BY HIM REGARDING THE SOURCE OF THAT MONEY IS FOUND TO BE NOT CORRECT. FROM THE SIMPLE FACT THAT THE EXPLA NATION REGARDING THE SOURCE OF MONEY FURNISHED BY A, IN WH OSE NAME THE MONEY IS LYING IN DEPOSIT, HAS BEEN FOUND TO BE FALSE, IT WOULD BE A REMOTE AND FAR-FETCHED CONCLUSION TO HOL D THAT THE MONEY BELONGS TO B. THERE WOULD BE IN SUCH A CASE N O DIRECT NEXUS BETWEEN THE FACTS FOUND AND THE CONCLUSION DR AWN THEREFROM. THERE IS ALSO NO COGENT GROUND TO TAKE A VIEW DIFFERENT FROM THAT OF THE HIGH COURT THAT THE OTHE R CIRCUMSTANCES, NAMELY, THE TRANSFER OF THE AMOUNT O F RS. 5,00,000 FROM CALCUTTA TO JAMNAGAR FOR FIXED DEPOSI T IN THE NAME OF B AND THE USE SOON THEREAFTER TO THE SAID F IXED DEPOSIT RECEIPT AS SECURITY FOR THE OVERDRAFT FACILITY TO T HE RESPONDENT- FIRM DID NOT JUSTIFY THE INFERENCE THAT THE AMOUNT BELONGED TO THE RESPONDENT. THE MATERIAL ON RECORD INDICATES TH AT THE FACILITY OF OVERDRAFT ON THE SECURITY OF THE FIXED DEPOSIT R ECEIPT IN THE NAME OF B WAS ENJOYED BY THE ASSESSEE FIRM FOR A LI TTLE OVER A YEAR. THE CONCEPT OF SECURITY AND OWNERSHIP ARE DIF FERENT AND IT WOULD BE A WHOLLY ERRONEOUS APPROACH TO HOLD THAT A THING OFFERED IN SECURITY BY A THIRD PERSON TO GUARANTEE THE PAYMENT OF DEBT DUE FROM THE PRINCIPAL DEBTOR BELONGS NOT T O THE SURETY BUT TO THE PRINCIPAL DEBTOR. THE TRIBUNAL HAS ALSO REFERRED TO THE FACT THAT NO CONSIDERATION PASSED TO B FOR OFFERING THE FIXED DEPOSIT RECEIPT AS SECURITY FOR THE OVERDRAFT FACIL ITY TO THE RESPONDENT-FIRM. THIS CIRCUMSTANCE, IS OF A NEUTRAL CHARACTER AND HAS NO MATERIAL BEARING FOR DETERMINING THE OWNERSH IP OF THE AMOUNT IN FIXED DEPOSIT. SURETIES QUITE OFTEN OFFER SECURITY WITHOUT RECEIPT OF CONSIDERATION FROM THE PRINCIPAL DEBTOR. SO FAR AS THE PRESENT CASE IS CONCERNED, ONE CANNOT BE OBL IVIOUS OF THE FACT THAT B OFFERED SECURITY FOR THE OVERDRAFT FACI LITY TO A FIRM OF WHICH HIS FATHER WAS A PARTNER. IN THE CIRCUMSTANCE S, THE FACT THAT B RECEIVED NO CONSIDERATION FOR OFFERING THE F IXED DEPOSIT RECEIPT AS SECURITY FOR THE OVERDRAFT FACILITY WOUL D NOT RESULT IN ANY INFERENCE AGAINST THE RESPONDENT. THE ONUS TO PROVE THAT THE APPARENT IS NOT THE REAL IS ON THE PARTY WHO CLAIMS IT TO BE SO. AS IT WAS THE DEPARTM ENT WHICH CLAIMED THAT THE AMOUNT OF FIXED DEPOSIT RECEIPT BE LONGED TO THE RESPONDENT FIRM EVEN THOUGH THE RECEIPT HAD BEEN IS SUED IN THE NAME OF B, THE BURDEN LAY ON THE DEPARTMENT TO PROV E THAT THE RESPONDENT WAS THE OWNER OF THE AMOUNT DESPITE THE FACT THAT THE RECEIPT WAS IN THE NAME OF B. A SIMPLE WAY OF D ISCHARGING THE ONUS AND RESOLVING THE CONTROVERSY WAS TO TRACE THE SOURCE AND ORIGIN OF THE AMOUNT AND FIND OUT ITS ULTIMATE DESTINATION. SO FAR AS THE SOURCE IS CONCERNED, THERE IS NO MATE RIAL ON THE RECORD TO SHOW THAT THE AMOUNT CAME FROM THE COFFER S OF THE RESPONDENT-FIRM OR THAT IT WAS TENDERED ON BEHALF O F THE RESPONDENT. AS REGARDS THE DESTINATION OF THE AMOUN T THERE IS NOTHING TO SHOW THAT IT WENT TO THE COFFERS OF THE RESPONDENT. ON ITA NO. 1484/MUM/2013 NEXUS BUILDERS & DEVELOPERS PVT. LTD. 14 THE CONTRARY THERE IS POSITIVE EVIDENCE THAT THE AM OUNT WAS RECEIVED BY B ON 22ND JAN., 1946. IT WOULD THUS FOL LOW THAT BOTH AS REGARDS THE SOURCE AS WELL AS THE DESTINATION OF THE AMOUNT, THE MATERIAL ON THE RECORD GIVES NO SUPPORT TO THE CLAIM OF THE DEPARTMENT. THE AAC ALSO TOOK INTO ACCOUNT THE FACT THAT THE OFFICE OF THE CENTRAL BANK, IS IN THE SAME BUILDING IN WHICH THERE ARE THE BUSINESS PREMISES OF THE RESPONDENT-FIRM. T HIS WAS, A WHOLLY EXTRANEOUS AND IRRELEVANT CIRCUMSTANCES FOR DETERMINING THE OWNERSHIP OF RS. 5,00,000 WHICH HAD BEEN DEPOSI TED IN FIXED DEPOSIT IN THE NAME OF B. THERE SHOULD, BE SOME DIR ECT NEXUS BETWEEN THE CONCLUSION OF FACT ARRIVED AT BY THE AU THORITY CONCERNED AND THE PRIMARY FACTS UPON WHICH THAT CON CLUSION IS BASED. CONCLUSION : MERELY BECAUSE THE SURETYS EXPLANATION REGARDING S OURCE OF DEPOSIT HELD BY HIM WAS FOUND FALSE, IT CANNOT BE H ELD THAT THE PRINCIPAL DEBTOR (FIRM) WHICH OPERATED AN OVERDRAFT ACCOUNT AGAINST THE SECURITY OF SUCH DEPOSIT OWNED THE MONE Y. 2.9. IN ANOTHER CASE, IN COMMISSIONER OF INCOME TAX VS. U.M. SHAH, PROPRIETOR, SHRENIK TRADING CO. 90 ITR 396 (BOM.), THE HON'BLE JURISDICTIONAL HIGH COURT HELD AS UNDER:- HELD : THE TRIBUNAL TOOK THE VIEW THAT UPON THE MATERIAL O R EVIDENCE WHICH HAD BEEN PRODUCED BY THE ASSESSEE BEFORE THE ITO, AND IT WAS OVER-WHELMING AND CLINCHING MATERIAL, THE ON LY CONCLUSION WHICH THE ITO COULD COME TO WAS THAT THE LOANS WERE GENUINE LOANS. THE TRIBUNAL SET FORTH THESE CIRCUMSTANCES WHICH CAN BE ONLY ENUMERATES TO SHOW HOW THEIR CONCLUSION IS ONLY A PURE FINDING OF FACT. TH E TRIBUNAL FOUND THAT THE FOLLOWING CIRCUMSTANCES HAD BEEN EST ABLISHED : (1) THAT ALL THE HUNDI LOANS TAKEN BY THE ASSESSEE WERE THROUGH CROSSED CHEQUES WHICH HAD PASSED THROUGH RECOGNIZED BANKS. (2) THAT THOSE HUNDI LOANS WERE OBTAINED THROUGH A BROKER WHOSE NAME HAD BEEN DISCLOSED, NAMELY, M & CO. (3) THAT THE BROKERAGE WAS PAID TO THIS BROKER THRO UGH A CROSSED CHEQUE WHICH HAD ALSO PASSED THROUGH A BANK . ITA NO. 1484/MUM/2013 NEXUS BUILDERS & DEVELOPERS PVT. LTD. 15 (4) THAT THE INTEREST ON THE LOANS WAS ALSO PAID TH ROUGH THE RESPECTIVE BANKERS BY CHEQUES. (5) THAT THE ASSESSEE HAD GIVEN THE COMPLETE NAMES AND ADDRESSES OF ALL THE BANKERS WHO HAD ADVANCED MONEY S TO HIM AND THE AMOUNTS BORROWED FROM THEM. ALL THESE B ANKERS WERE THEMSELVES INCOME-TAX ASSESSEES AND THE PRESEN T ASSESSEE HAD ALSO GIVEN THEIR G.I.R. NUMBERS AS REC ORDED IN THE IT OFFICE. (6) SUMMONSES TO THOSE HUNDI BANKERS AS ALSO THE BR OKERS WERE DULY SERVED. (7) THOSE BANKERS HAD SUBMITTED CONFIRMATORY LETTER S BEFORE THE ITO CONFIRMING HAVING MADE THE ADVANCES TO THE ASSESSEE. NOW THE CONCLUSION WHICH THE TRIBUNAL REACHED WAS T HAT UPON THIS MATERIAL THERE WAS ABSOLUTELY NO SUSPICION OR DOUBT REGARDING THESE LOANS AND THAT THEY WERE PERFECTLY GENUINE AND COULD NOT BE HELD TO BE THE UNDISCLOSED INCOME OF THE ASSESSEE. THIS FINDING GIVEN BY THE TRIBUNAL WAS A PURE FINDING OF FACT. THE TRIBUNAL ALSO REMARKED THAT TH E ITO HAD NOT BROUGHT ON RECORD ANY EVIDENCE TO SHOW THAT THE EVIDENCE WHICH THE ASSESSEE HAD ADDUCED WAS INCORRECT OR UNT RUE IN ANY MANNER. THAT AGAIN SHOWS THAT THE FINDING ARRIV ED AT BY THE TRIBUNAL WAS BASED PURELY UPON APPRECIATION OF EVIDENCE AND THAT NO QUESTION OF LAW ARISES OUT OF THAT FIND ING. CONCLUSION : TRIBUNAL UPON APPRECIATION OF EVIDENCE TAKING THE V IEW THAT UPON THE MATERIAL OR EVIDENCE WHICH HAD BEEN PRODUC ED BY THE ASSESSEE BEFORE THE ITO, AND IT WAS OVERWHELMIN G AND CLINCHING MATERIAL, THE ONLY CONCLUSION WHICH THE I TO COULD COME TO WAS THAT THE LOANS WERE GENUINE LOANS, NO R EFERABLE QUESTION OF LAW AROSE. 2.10. LIKEWISE, HON'BLE APEX COURT IN COMMISSIONER OF INCOME TAX VS. BEDI & CO. PVT. LTD. 230 ITR 580 (SC) OBSERVED AS UNDER:- HELD : THERE CANNOT BE ANY DOUBT THAT HIGH COURT WILL NOT ADDRESS ITSELF TO RECORDING FINDINGS OF FACTS UNLESS THE SU BJECT-MATTER OF THE QUESTION REFERRED TO IT BY THE TRIBUNAL, EITHER UNDER SUB-S. (1) OR SUB-S. (2) OF S. 256, RELATES TO THE PERVERS ITY OF THE ITA NO. 1484/MUM/2013 NEXUS BUILDERS & DEVELOPERS PVT. LTD. 16 FINDINGS ARRIVED AT BY THE TRIBUNAL. THAT SORT OF Q UESTION HAS TO BE DISTINGUISHED FROM A MIXED QUESTION OF FACTS AND LAW, WHICH ALSO REQUIRES CONSIDERATION AND DISCUSSION OF FACTS BUT DOES NOT WARRANT RETURNING FINDINGS OF FACTS INCONSISTENT WI TH THE FINDINGS RECORDED BY THE TRIBUNAL WHILE GIVING ITS OPINION ON THE QUESTION REFERRED TO THE HIGH COURT. IN ANSWERING T HE QUESTION, IN THIS CASE, THE HIGH COURT HAD TO DEAL WITH VARIO US FACTS ON RECORD TO DETERMINE WHETHER THE AMOUNT IN QUESTION WAS LOAN OR INCOME. IF SUCH DISCUSSION OF FACTS HAS LED TO A RRIVING AT THE CONCLUSION THAT THE AMOUNT WAS LOAN BUT NOT INCOME, IT CANNOT BE URGED THAT THE HIGH COURT DISTURBED THE FINDING OF FACT RECORDED BY THE TRIBUNAL. HERE THE TRIBUNAL DID NOT FIND ANY MATERIAL TO RECORD SPECIFIC FINDING THAT THE AMOUNT IN QUESTION IS IN THE NATURE OF COMMISSION PAID BY P TO THE ASS ESSEE; IT TOOK NOTE OF THE FACT THAT THE LOAN WAS ADVANCED BY AGREEMENT DT. 15TH NOV., 1958 AND THAT THE RESERVE BANK OF IN DIA HAD ACCORDED PERMISSION FOR OBTAINING THE LOAN. THE HIG H COURT IN REGARD TO THE LOAN AGREEMENT OBSERVED THAT THE AGRE EMENT PROVIDED THAT THE AMOUNT WOULD BE UTILISED FOR PURP OSES OF PURCHASING SHARES IN THE PAPER MILLS AND THAT THE S HARES WERE ACCORDINGLY PURCHASED AND THEY WERE TREATED AS BELO NGING TO THE ASSESSEE-COMPANY. THE HIGH COURT ALSO REFERRED TO A LETTER OF THE FOREIGN CREDITOR ADDRESSED TO THE ITO IN NOV EMBER, 1970 IN RESPONSE TO HIS QUERY LETTER AND OPINED THAT THE FOREIGN COLLABORATOR MAINTAINED THAT THE TRANSACTION WAS LO AN AS LATE AS IN NOVEMBER, 1970. IT ALSO NOTICED THE REASONING OF THE REVENUE AS REFLECTED IN THE ORDERS OF THE ITO AND T HE AAC. THE HIGH COURT IS ALSO JUSTIFIED IN ITS COMMENT THAT WI THOUT RECORDING ANY FINDING THAT THE AMOUNT WAS COMMISSIO N OR BUSINESS RECEIPT, THE TRIBUNAL WAS NOT JUSTIFIED IN COMING TO THE CONCLUSION THAT IT COULD BE ASSESSED AS INCOME. THE HIGH COURT HAS RIGHTLY HELD THAT THE CIRCUMSTANCES TAKEN SINGL Y OR CUMULATIVE DID NOT JUSTIFY THE CONCLUSION THAT THE AMOUNT WAS NOT RECEIVED AS LOAN AS IT PURPORTED TO BE BUT WAS ANYTHING IN THE NATURE OF COMMISSION OR ANY RECEIPT OF BUSINESS . IN ARRIVING AT THE CONCLUSION TO WHICH IT DID, IT WAS NECESSARY FOR THE HIGH COURT TO REFER TO THE FACTS AND DISCUSS THEM TO ANS WER THE MIXED QUESTION OF FACTS AND LAW AND THAT IS WHAT TH E HIGH COURT HAD DONE. THE FACTS ON RECORD APPARENTLY INDI CATE THAT THE TRANSACTION WAS ONE OF LOAN. THE CIRCUMSTANCES RELIED UPON BY THE REVENUE, NAMELY, THAT THE LOAN HAD BEEN ADVA NCED WITHOUT SECURITY, THAT THE LOAN HAD NOT BEEN REPAID AND NO INTEREST ON THE LOAN WAS PAID BY THE ASSESSEE AND T HAT THE AGREEMENT OF LOAN WAS EXECUTED CONTEMPORANEOUSLY WI TH OTHER TWO AGREEMENTS WITH REGARD TO SUPPLY OF MACHINE AND CONSTRUCTION OF BUILDING FOR THE PAPER MILL CANNOT, WITHOUT ANY FURTHER MATERIAL, LEAD TO THE INFERENCE THAT THE AM OUNT WAS NOT LOAN BUT BUSINESS INCOME. IT APPEARS THAT THE LAST MENTIONED CIRCUMSTANCE SUPPORTS THE PLEA OF THE ASSESSEE THAT THE SAID AMOUNT WAS RECEIVED AS LOAN. FOR THE AFOREMENTIONED REASONS THERE IS NO ILLEGALITY IN THE JUDGMENT OF THE HIGH COURT UNDER ITA NO. 1484/MUM/2013 NEXUS BUILDERS & DEVELOPERS PVT. LTD. 17 APPEAL.BEDI & CO. PVT. LTD. VS. CIT (1983) 144 ITR 352 (KAR) AFFIRMED (PARAS 5 & 6) CONCLUSION : AMOUNT IN QUESTION RECEIVED BY THE ASSESSEE FROM A FOREIGN CREDITOR WAS LOAN AND NOT COMMISSION OR BUSINESS IN COME; FACTS THAT LOAN WAS ADVANCED WITHOUT ANY SECURITY, IT WAS NOT REPAID AND NO INTEREST WAS PAID, CANNOT WITHOUT ANY FURTHER MATERIAL, LEAD TO INFERENCE THAT THE AMOUNT WAS NOT LOAN BUT BUSINESS INCOME. REFERENCEFINDING OF FACTSINTERFERENCE BY COURTHI GH COURT WILL NOT ADDRESS ITSELF TO RECORDING FINDINGS OF FACTS UNLESS THE SUBJECT-MATTER OF THE QUESTION REFERRED TO IT BY THE TRIBUNAL RELATES TO THE PERVERSITY OF THE FI NDINGS ARRIVED AT BY THE TRIBUNALTHAT SORT OF QUESTION HA S TO BE DISTINGUISHED FROM A MIXED QUESTION OF FACTS AND LAW, WHICH ALSO REQUIRES CONSIDERATION AND DISCUSSION OF FACTS BUT DOES NOT WARRANT RETURNING FINDINGS OF FACTS INCONSISTENT WITH THE FINDINGS RECORDED BY THE TRIB UNAL WHILE GIVING ITS OPINION ON THE QUESTION REFERRED T O THE HIGH COURTIN THE PRESENT CASE, HIGH COURT RIGHTLY HELD THAT THE CIRCUMSTANCES TAKEN SINGLY OR CUMULATIVE D ID NOT JUSTIFY THE CONCLUSION THAT THE AMOUNT WAS NOT RECEIVED AS LOAN AS IT PURPORTED TO BE BUT WAS ANYT HING IN THE NATURE OF COMMISSION OR ANY RECEIPT OF BUSIN ESS HIGH COURT COULD NOT BE SAID TO HAVE RECORDED ITS O WN FINDINGS CONCLUSION : HIGH COURT RIGHTLY HELD THAT THE CIRCUMSTANCES TAKE N SINGLY OR CUMULATIVE DID NOT JUSTIFY THE CONCLUSION THAT THE AMOUNT WAS NOT RECEIVED AS LOAN AS IT PURPORTED TO BE BUT WAS ANYTHING IN THE NATURE OF COMMISSION OR ANY RECEIPT OF BUSINESS ; AND IT COULD NOT BE SAID TO HAVE RECORDED ITS OWN FINDINGS . 2.11. IN THE CASE OF CIT VS DR. M.K. E. MENON (200 1) 248 ITR 310 (BOM.) HELD THAT THE ASSESSING OFFICER WAS NOT RIGHT IN APPLYING HE PEAK INCOME OF THE LATER PERIO D TO THE ENTIRE BLOCK PERIOD OF 1986 TO 1996 FOR ESTIMATING THE UNDISCLOSED INCOME. THE RELEVANT PORTION FROM THE ORDER IS REPRODUCED HEREUNDER FOR READY REFERENCE:- ITA NO. 1484/MUM/2013 NEXUS BUILDERS & DEVELOPERS PVT. LTD. 18 6. THE ASSESSEE IS A GENERAL PHYSICIAN. HE IS ON THE PANEL OF THE EMBASSIES OF SAUDI ARABIA, QATAR AND KUWAIT. HE HAS A CLINIC, WHERE THE CANDIDATES GOING ABROAD ARE REGIS TERED FOR MEDICAL CHECK-UP AND THEN IT IS HIS DUTY IS ISSUE F ITNESS CERTIFICATES. THE REGISTRATION BOOKS, WHICH WERE SE IZED, RELATED TO THE PERIOD NOVEMBER, 1993, ONWARDS. DURING THE C OURSE OF THE SEARCH OPERATION IT WAS NOTICED THAT THE CASH B OOK OF THE ASSESSEE WAS PREPARED ON THE BASIS OF THE CASH DEPO SITS IN BANK AND ON THE BASIS OF PAYING-IN-SLIPS. WHEN THE CASH BOOK WAS COMPARED WITH THE REGISTRATION BOOK, IT WAS NOT ICED THAT THE NUMBER OF CANDIDATES REFLECTED IN THE CASH BOOK AND THE CORRESPONDING FEES RECEIVED WERE NOT FULLY REFLECTE D IN THE CASH BOOK. HOWEVER, IN THE RETURN OF THE INCOME FIL ED FOR THE BLOCK PERIOD, THE AMOUNT OF UNDISCLOSED INCOME OFFE RED FOR TAXATION HAS BEEN GIVEN BOTH FOR THE PRE-NOVEMBER, 1993 AND POST-NOVEMBER, 1993. THE QUESTION BEFORE THIS COURT BRIEFLY ON THE FACTS WHICH HAS BEEN RAISED IS WHETHER THE A O WAS RIGHT IN ESTIMATING THE UNDISCLOSED INCOME BY APPLY ING THE POST-1993 WEIGHTED AVERAGE RATE OF INCOME TO THE PE RIOD 1983 UPTO NOVEMBER, 1993. IN THIS CONNECTION IT IS STATED THAT THE ASSESSEE WAS REGISTERED AS A PANEL DOCTOR FOR SAUDI CONSULATE IN 1984. IN 1986 AND 1991, HE WAS REGISTE RED AS A PANEL DOCTOR FOR QATAR AND KUWAIT CONSULATES, RESPE CTIVELY. THE CASE OF THE ASSESSEE BEFORE THE TRIBUNAL WAS TH AT DURING THE EARLIER PERIOD OF HIS PRACTICE THE WORK RELATIN G TO THE MEDICAL SCREENING OF CANDIDATES FOR THE GULF COUNTR IES WAS LESS AS COMPARED TO THE WORK WHICH HE GOT AFTER NOV EMBER, 1993. MOREOVER, THE ASSESSEE CONTENDED BEFORE THE T RIBUNAL THAT THE GULF WAR IN 1991 ALSO ADVERSELY AFFECTED H IS INCOME. ON FACTS THE TRIBUNAL FOUND THAT THE ASSESSEES INC OME UNDER THE ABOVE BLOCK PERIOD INCREASED FROM NOVEMBER, 199 3 ONWARDS AND, THEREFORE, THE AO WAS NOT RIGHT IN APP LYING THE PEAK INCOME OF POST-NOVEMBER, 1993 PERIOD TO THE EN TIRE PERIOD OF THE BLOCK ASSESSMENT COMMENCING FROM 1ST APRIL, 1986 TO 11TH DEC., 1996. WE AGREE WITH THE FINDING OF THE FACT RECORDED BY THE TRIBUNAL. WHILE ESTIMATING THE UNDISCLOSED INCOME UNDER CHAPTER XIV-B, THE AO CANN OT APPLY A RULE OF THUMB. THE AO CANNOT ESTIMATE THE UNDISCLOSED INCOME ON AN ARBITRARY BASIS. WE CANNOT LOOSE SIGHT OF THE FACT THAT THE ASSESSEE IS A PROFESSION AL. IT IS HIGHLY IMPROBABLE THAT HIS PROFESSIONAL INCOME REMA INED CONSTANT FROM 1983-84 (WHEN HE WAS PUT ON THE PANEL ) RIGHT UPTO 1996. IT IS HIGHLY IMPROBABLE THAT THE FEES WH ICH HE WAS CHARGING IN 1993 WERE THE SAME ALSO DURING THE PERI OD 1984 UPTO NOVEMBER, 1993. WE AGREE WITH THE CONTENTION ADVANCED ON BEHALF OF THE DEPARTMENT THAT IN MATTER S UNDER CHAPTER XIV-B THE AO IS REQUIRED TO ESTIMATE THE UN DISCLOSED INCOME. WE AGREE WITH THE CONTENTION OF THE DEPARTM ENT THAT THIS ESTIMATION INVOLVES GUESS WORK. HOWEVER, THE A O UNDER CHAPTER XIV-B CANNOT ACT ARBITRARILY, WHILE ESTIMAT ING THE UNDISCLOSED INCOME. IN THE PRESENT CASE, THE AO HAS NOT ITA NO. 1484/MUM/2013 NEXUS BUILDERS & DEVELOPERS PVT. LTD. 19 CONSIDERED THE ADVERSE IMPACT OF THE GULF WAR. IN T HE PRESENT MATTER THE AO HAS NOT CONSIDERED THE FACT THAT THE FEES OF THE PROFESSIONAL IN ORDINARY COURSE COULD NOT HAVE REMA INED STATIC FOR THE ENTIRE PERIOD COMMENCING FROM 1ST APRIL, 19 86 TO 11TH DEC., 1996. THE AO HAS ALSO NOT CONSIDERED THAT THE ASSESSEE USED TO TAKE A DEPOSIT OF A FIXED AMOUNT FROM EACH CANDIDATE. THAT ON SCREENING, IF THE ASSESSEE FOUND THE CANDID ATE TO BE UNFIT HE USED TO RETAIN RS. 100 AND RETURN THE BALA NCE AMOUNT. IT IS POINTED OUT TO US THAT IF ON PRELIMIN ARY EXAMINATION A CANDIDATE WAS SUFFERING FROM A SERIOU S AILMENT THEN THERE WAS NO NECESSITY OF THE CANDIDATE UNDERG OING FURTHER TESTS AND IN WHICH EVENT THE ASSESSEE USED TO RETAIN RS. 100 AND RETURN THE BALANCE AMOUNT. NONE OF THE EXPLANATIONS HAVE BEEN CONSIDERED BY THE AO AND THE REFORE, THE TRIBUNAL HELD THAT THE ESTIMATION OF INCOME BY THE AO WAS WITHOUT ANY EVIDENCE/BASIS. THIS IS A PURE FINDING OF FACT. WE ALSO AGREE WITH THE SAID FINDING. 7 . BEFORE CONCLUDING WE MAY MENTION THAT IN ALL MATTERS OF BLOCK ASSESSMENT, THE DEPARTMENT HEAVILY RELIES UPON THE JUDGMENT OF THE SUPREME COURT IN TH E CASE OF CST VS. H.M. ESUFALI H.M. ABDULALI 1973 CTR (SC) 317 : (1973) 90 ITR 271 (SC). THAT WAS A CASE IN WHICH UNREPORTED SALES WERE DETECTED FOR A PERIOD O F 19 DAYS IN A YEAR. THE AO ESTIMATED THE TURNOVER FO R THE ENTIRE PERIOD OF ONE YEAR ON THE BASIS OF THE UNREPORTED SALES FOR THE PERIOD OF 19 DAYS. THE QUESTION THAT AROSE BEFORE THE SUPREME COURT IS AS TO WHETHER THE AO WAS RIGHT IN DOING SO. IT WAS HELD B Y THE APEX COURT THAT IN A MATTER INVOLVING UNREPORTE D SALES, THE AO HAS TO PROCEED ON THE BASIS OF ESTIMA TION WHICH INVOLVES SOME AMOUNT OF GUESS WORK. THE APEX COURT, ACCORDINGLY, UPHELD THE ORDER OF THE AO IN ESTIMATING THE TURNOVER ON THE BASIS OF THE UNREPOR TED SALES FOR A SHORTER PERIOD. HOWEVER, IN THE PRESENT MATTER, WE ARE CONCERNED WITH THE BLOCK ASSESSMENT OF TEN YEARS. ULTIMATELY, THE SAID JUDGMENT OF THE SUPREME COURT MUST BE SEEN IN THE CONTEXT OF THE FA CTS OF EACH CASE. IN THE PRESENT MATTER, THE ASSESSEE I S A PROFESSIONAL. IT IS HIGHLY IMPROBABLE THAT THE RATE OF THE FEES CHARGED BY A PROFESSIONAL IN 1983 WOULD REMAIN STATIC FOR THE ENTIRE BLOCK PERIOD OF 10 YEARS. THE PROPORTIONATE AMOUNT OF REFUND ALSO COULD NOT HAVE REMAINED STATIC FOR THE ENTIRE PERIOD OF TEN YEARS. THE ASSESSEE FURTHER POINTED OUT THAT DURING THE GULF W AR THE NUMBER OF PERSONS WHO WENT TO THE GULF COUNTRIE S STOOD SUBSTANTIALLY REDUCED. THESE FACTS SHOULD HAV E BEEN CONSIDERED BY THE DEPARTMENT. ON THE OTHER HAN D, IN THE PRESENT MATTER, THE DEPARTMENT HAS APPLIED T HE PEAK INCOME RATE OF POST-1993 PERIOD TO THE ENTIRE BLOCK PERIOD COMMENCING FROM 1ST APRIL, 1986 UP TO ITA NO. 1484/MUM/2013 NEXUS BUILDERS & DEVELOPERS PVT. LTD. 20 11TH DEC., 1996. HENCE, THE TRIBUNAL WAS RIGHT IN COMING TO THE CONCLUSION THAT AN ARBITRARY METHOD H AS BEEN ADOPTED BY THE AO IN ESTIMATING THE INCOME OF THE ASSESSEE UNDER CHAPTER XIV-B. 2.12. IT IS NOTICED THAT WHILE COMING TO A PARTICU LAR CONCLUSION, THE HON'BLE JURISDICTIONAL HIGH COURT DISTINGUISHED THE DECISION FROM HON'BLE APEX COURT IN CST VS H.M. ESUFALI H.M. ABDULALI (1973) 90 ITR 271 (SC ) AND THE TRIBUNAL WAS HELD TO BE RIGHT IN COMING TO CONC LUSION THAT AN ARBITRARY METHOD HAS BEEN ADOPTED BY THE ASSESSING OFFICER IN ESTIMATING THE INCOME OF THE A SSESSEE. IDENTICAL IS THE SITUATION IN THE PRESENT APPEAL BE FORE US, AS MENTIONED EARLIER, THE LD. ASSESSING OFFICER MADE A DDITION ARBITRARILY ON PRESUMPTIVE BASIS THAT TOO WITHOUT B RINGING ANY EVIDENCE ON RECORD. LIKEWISE, IN THE CASE OF ME HTA PARIKH & COMPANY VS CIT (1956) 30 ITR 181(SC). THE RELEVANT PORTION FROM THE AFORESAID ORDER IS REPROD UCED HEREUNDER FOR READY REFERENCE AND ANALYSIS:- 8. BOTH THE ITO AND THE AAC DISCOUNTED THIS SUGGESTIO N OF THE APPELLANTS BY HOLDING THAT IT WAS IMPOSSIBLE TH AT THE APPELLANTS HAD ON HAND ON 12TH JAN., 1946, THE 61 H IGH DENOMINATION CURRENCY NOTES OF RS. 1,000 EACH, INCL UDED IN THEIR CASH BALANCE OF RS. 69,891-2-6. THE CALCULATI ONS, WHICH THEY MADE INVOLVED TAKING INTO ACCOUNT ALL PAYMENTS RECEIVED BY THE APPELLANTS FROM AND AFTER 2ND JAN., 1946, WH ICH WERE EITHER MULTIPLES OF RS. 1,000 OR WERE OVER RS. 1,00 0. THERE WAS A CASH BALANCE OF RS. 18,395-6-6 ON HAND ON 2ND JAN., 1946, WHICH COULD HAVE ACCOUNTED FOR SUCH NOTES. TH E APPELLANTS RECEIVED THEREAFTER AS SHOWN IN THEIR CA SH BOOK SEVERAL SUMS OF MONIES OF MONIES AGGREGATING TO OVE R RS. 45,000 IN MULTIPLES OF RS. 1,000 OR SUMS OVER RS. 1 ,000, WHICH COULD ACCOUNT FOR 45 OTHER NOTES OF THAT HIGH DENOMINATION, THUS MAKING UP 63 CURRENCY NOTES OF T HE HIGH DENOMINATION OF RS. 1,000 AND THESE 61 CURRENCY NOT ES OF RS. 1,000 EACH, WHICH THE APPELLANTS ENCASHED ON 18TH J AN., ITA NO. 1484/MUM/2013 NEXUS BUILDERS & DEVELOPERS PVT. LTD. 21 1946, COULD AS WELL HAVE BEEN IN THEIR CUSTODY ON 1 2TH JAN., 1946. THIS WAS, HOWEVER, CONSIDERED IMPOSSIBLE BY B OTH ITO AND THE AAC AS THEY COULD NOT CONSIDER IT WITHIN TH E BOUNDS OF POSSIBILITY THAT EACH AND EVERY PAYMENT RECEIVED BY THE APPELLANTS AFTER 2ND JAN., 1946, IN MULTIPLES OF RS . 1,000 OR OVER RS. 1,000 WAS RECEIVED BY THE APPELLANTS IN HI GH DENOMINATION NOTES OF RS. 1,000 EACH. IT WAS BY REA SON OF THEIR VISUALISATION OF SUCH AN IMPOSSIBILITY THAT T HEY NEGATIVED THE APPELLANTS' CONTENTION. IT HAS TO BE NOTED, HOWEVER, THAT BEYOND THESE CALCULATIONS OF FIGURES, NO FURTHER SCRUTINY WAS MA DE BY THE ITO OR THE AAC OF THE ENTRIES IN THE CASH BOOK OF THE APPELLANTS. THE CASH BOOK OF THE APPELLANTS WAS ACCEPTED AND THE ENTRIES THEREIN WERE NOT CHALLENGE D. NO FURTHER DOCUMENTS OR VOUCHERS IN RELATION TO THO SE ENTRIES WERE CALLED FOR, NOR WAS THE PRESENCE OF TH E DEPONENTS OF THE THREE AFFIDAVITS CONSIDERED NECESS ARY BY EITHER PARTY. THE APPELLANTS TOOK IT THAT THE AFFIDAVITS OF THESE PARTIES WERE ENOUGH AND NEITHER THE AAC, NOR THE ITO, WHO WAS PRESENT AT THE HEARING OF THE APPEAL BEFORE THE AAC, CONSIDERED IT NECESSARY TO CALL FOR THEM IN ORDER TO CROSS-EXAMINE THEM WITH REFERENCE TO THE STATEMENTS MADE BY THEM IN THEIR AFFIDAVITS. UNDER THESE CIRCUMSTANCES, IT WAS NOT O PEN TO THE REVENUE TO CHALLENGE THE CORRECTNESS OF THE CASH ENTRIES OR THE STATEMENTS MADE BY THOSE DEPONENTS I N THEIR AFFIDAVITS. 2.13. IN ANOTHER CASE, HON'BLE DELHI HIGH COURT IN CIT VS AERO CLUB (2011) 336 ITR 400 (DEL.) HELD AS UNDE R:- 21. THUS, EVEN ASSUMING FOR THE SAKE OF ARGUMENT THAT THE ASSESSEES P&L A/C WAS RIGHTLY DISCARDED BY THE AO, IT IS FOR THIS COURT TO EXAMINE WHETHER A RATIONAL BASIS WAS ADOPTED BY THE AO. THE ANSWER IS OUR OPINION MUST BE AN EMPHAT IC NO. IN OUR OPINION, THE CIT(A) AND THE TRIBUNAL RIGHTLY SE T ASIDE THE 'BEST JUDGMENT' ASSESSMENT OF THE AO ON THE GROUND THAT THE AO HAD 'NOT BROUGHT ON RECORD ANY COMPARABLE CASE W HEREIN THE NET PROFIT DECLARED BY A TAXPAYER IN THE SIMILA R BUSINESS WAS HIGHER THAN THE ONE DECLARED BY THE ASSESSEE.' WE ALSO CONCUR WITH THE FINDINGS OF THE TRIBUNAL THAT THE P ROFIT MARGINS OF A TAXPAYER AS DECLARED BY HIM, COULD BE VARIED A ND DISTURBED ONLY IF THE PROFIT MARGINS IN THE CASE OF OTHER ASSESSEES ENGAGED IN SIMILAR BUSINESS ARE HIGHER. I N THE INSTANT CASE, THE ASSESSEE HAS BROUGHT ON RECORD EV IDENCE THAT IN THE CASE OF A COMPANY HAVING SIMILAR BUSINESS, T HE DECLARED PROFITS WERE IN FACT LOWER THAN THE PROFITS DECLARE D BY THE ASSESSEE. THE AO IN HIS REMAND REPORT WAS ALSO UNAB LE TO ITA NO. 1484/MUM/2013 NEXUS BUILDERS & DEVELOPERS PVT. LTD. 22 COMMENT ON THE COMPARABLE CASE OF M/S BATA INDIA LT D. AND AERO TRADERS RELIED UPON BY THE ASSESSEE. IN THE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE TRIBUNAL RIGHTLY HELD THAT THE NET PROFIT AS DECLARED BY THE ASSESSEE WAS NOT REQUIRED TO BE DISTURBED. DURING HEARING, THE LD. DR RELIED UPON THE DECISION FROM HON'BLE APEX COURT IN CST VS H.M. ESUFALI H.M. ABDU LALI (1973) 90 ITR 271 (SC), WE FIND THAT THIS CASE HAS BEEN DELIBERATED UPON IN VARIOUS CASES AND WAS DISTINGUI SHED BY HON'BLE JURISDICTIONAL HIGH COURT AND EVEN BY DELHI HIGH COURT IN VARIOUS CASES INCLUDING SOME OF THE THEM A RE DISCUSSED ABOVE LIKE CIT VS AERO CLUB BY HON'BLE DE LHI HIGH COURT AND IN CIT VS DR. M.K.E. MENON BY HON'BL E JURISDICTIONAL HIGH COURT (SUPRA). CONSIDERING THE TOTALITY OF FACTS AND THE CIRCUMSTANCES AND VARIOUS JUDICIAL PRONOUNCEMENTS, WE DELETE THE ADDITION MADE BY THE ASSESSING OFFICER ARBITRARILY AND ON PRESUMPTIVE BA SIS. THE APPEAL OF THE ASSESSEE IS ALLOWED. FINALLY THE APPEAL OF THE ASSESSEE IS ALLOWED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 24/01/2017. SD/- SD/- ( RAMIT KOCHAR ) (JOGINDER SINGH) #'$ / ACCOUNTANT MEMBER %'$ /JUDICIAL MEMBER # $ MUMBAI; ' DATED : 31/01/2017 F{X~{T? P.S / /. . . ITA NO. 1484/MUM/2013 NEXUS BUILDERS & DEVELOPERS PVT. LTD. 23 &%'()*)+' / COPY OF THE ORDER FORWARDED TO : 1. )*+, / THE APPELLANT (RESPECTIVE ASSESSEE) 2. -.+, / THE RESPONDENT. 3. / / # 0 ( )* ) / THE CIT, MUMBAI. 4. / / # 0 / CIT(A)- , MUMBAI, 5. 2'3 - , / )*& ) 4 , # $ / DR, ITAT, MUMBAI 6. 5 6$ / GUARD FILE. ' / BY ORDER, .2* - //TRUE COPY// /' (DY./ASSTT. REGISTRAR) , # $ / ITAT, MUMBAI