M/s CBR Constructions, Bangalore V. Asst.C.I.T., Bangalore

ITA 1575/BANG/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7131 (ITAT-BANGALORE)
• Duration Of Justice: 3 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 06-07-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 09-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R RAMESH
• Assessee Lawyers: A SHANKAR
• Keywords: Question of law
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO. 1575 /BANG/201 4 ASSESSMENT YEAR : 20 09 - 10 M/S. CBR CONSTRUCTIONS, NO. 104, 3 RD CROSS, BHUVANESHWARINAGAR, C V RAMAN NAGAR, BANGALORE 560 002. PAN: AAEFC 3504D VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 7 (2), BANGALORE. APPELLANT RESPONDENT ASSESSEE BY : SHRI A. SHANKAR, ADVOCATE REVENUE BY : SHRI B.R. RAMESH, JCIT (DR) DATE OF HEARING : 21 . 09 .2017 DATE OF PRONOUNCEMENT : 20 .12.2017 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER; THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE O RDER OF LD. CIT (A) II, BANGALORE DATED 16.09.2014 FOR ASSESSMENT YEAR 2009 -10. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE ORDER OF THE CIT (A) IN SO FAR AS THEY ARE A GAINST THE APPELLANT ARE OPPOSED TO LAW, EQUITY, AND WEIGHT OF EVIDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE APPELLANT DENIES TO BE ASSESSED AT RS. 1,98, 66,401/-AGAINST THE DECLARED TOTAL INCOME OF RS.33,37,930/- ON THE FACT S AND CIRCUMSTANCES OF THE CASE. 3. THE LEARNED CIT (A) IS NOT JUSTIFIED IN CONFIRMI NG THE DISALLOWANCE OF RS.1,59,43,471/- IN RESPECT OF SUNDRY CREDITORS, DESPITE CONFIRMATION OF THEIR BALANCES AND THE EXPRESSION O F OBJECTIVE SATISFACTION BY THE AO IN THE REMAND REPORT ON THE FACTS AND CIRCUMSTANCES OF THE CASE. ITA NO. 1575/BANG/2014 PAGE 2 OF 17 4. THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE A DDITION TO THE TUNE OF RS.5,00,000/- IN RESPECT OF THE SWORN STATEMENT OF MR. MANJUNATH AND IS NOT JUSTIFIED IN NOT RELYING ON THE ENTRIES IN THE BOOKS OF ACCOUNTS OF THE APPELLANT ON THE FACTS AND CIRCUMST ANCES OF THE CASE. 5. THE LEARNED CIT (A) ERRED IN CONFIRMING THE ADDI TIONS TO THE TUNE OF RS. 85,000/-IN RESPECT OF PURCHASES MADE DURING THE YEAR ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER WI TH THE HONB1E CHIEF COMMISSIONER OF INCOME TAX/DIRECTOR GENERAL O F INCOME TAX, THE APPELLANT FIRM DENIES ITSELF LIABLE TO BE CHARG ED TO INTEREST UNDER SECTION 234B AND 234C OF THE ACT WHICH UNDER THE FA CTS AND CIRCUMSTANCES OF THE CASE DESERVES TO BE CANCELLED. THE CALCULATION OF INTEREST UNDER SECTION 234B AND 234C IS NOT IN ACCO RDANCE WITH LAW AS THE RATE, AMOUNT AND METHOD FOR CALCULATING INTE REST IS NOT DISCERNIBLE FROM THE ORDER OF ASSESSMENT. 7. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY , DELETE OR SUBSTITUTE ANY OR ALL OF THE GROUNDS AND TO FILE A PAPER BOOK AT THE TIME OF HEARING THE APPEAL. 8. IN VIEW OF THE ABOVE AND OTHER GROUNDS THAT MAY BE TAKEN AT THE TIME OF THE HEARING THE APPEAL, THE APPELLANT PRAYS THAT THE APPEAL BE ALLOWED IN THE INTEREST OF JUSTICE AND EQUITY. 3. IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT GROU ND NOS. 1 AND 2 ARE GENERAL. REGARDING GROUND NO. 3, HE SUBMITTED THAT PARA NO. 15 OF THE SYNOPSIS FILED BY HIM IS RELEVANT FOR DECIDING THIS ISSUE. REGARDING GROUND NO. 4, HE SUBMITTED THAT PARA NO. 14 OF THE SYNOPSIS IS RELEVANT FOR TH IS ISSUE. REGARDING GROUND NO. 5, HE SUBMITTED THAT PARA NO. 16 OF THE SYNOPSI S IS RELEVANT FOR THIS GROUND. HE SUBMITTED THAT THESE THREE GROUNDS MAY BE DECIDE D BY CONSIDERING THESE THREE PARAS IN SYNOPSIS FILED BY HIM. THE LD. DR O F REVENUE SUPPORTED THE ORDERS OF AUTHORITIES BELOW AND IN PARTICULAR, OUR ATTENTION WAS DRAWN TO PARA NO. 3.6 OF THE ORDER OF LD. CIT(A). 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL ON RECORD. FIRST WE REPRODUCE THE RELEVANT THREE PARAS FROM TH E SYNOPSIS FILED BY LD. AR OF ASSESSEE I.E. 14, 15 AND 16 OF THE SYNOPSIS AND THE SAME ARE AS UNDER. 14) ISSUE NO 1: THE LEARNED CIT (A) ERRED IN CONFIRMING ADDITION O F RS 5,00,000/- IN RESPECT OF MR. MANJUNATH, AS NO CO NFIRMATION WAS SUBMITTED IN RESPECT OF THE CREDITOR. ITA NO. 1575/BANG/2014 PAGE 3 OF 17 A) THE LEARNED ASSESSING OFFICER WHILE PASSING THE ORD ER OF ASSESSMENT HAS OBTAINED A SWORN STATEMENT FROM SRI MANJUNATH, THAT NO AMOUNTS WERE DUE TO HIM, FOR WHICH THE APPE LLANT HAD SOUGHT AN OPPORTUNITY TO REBUT THE SAME BY WAY OF C ROSS EXAMINATION, WHICH WAS DENIED AND ADDITIONS MADE TO THE EXTENT OF RS.5,00,000/-. B) THE APPELLANT DURING REMAND PROCEEDINGS HAS STATED HIS INABILITY TO FURNISH THE CONFIRMATION OF SRI MANJUN ATH DUE TO DIFFERENCES OVER WORK RELATED ISSUES BUT STA TED THAT THE AMOUNTS WERE DUE AND THE ADDITIONS MADE IN THE ASSESSMENT ORDER OUGHT TO BE DELETED AS NO OPPORTUN ITY TO REBUT THE STATEMENTS WERE GIVEN TO THE APPELLANT. C) THE AO IN HIS REMAND REPORT HAS ADVISED THE CIT(A) TO CONFIRM THE ADDITIONS AS NO CONFIRMATION OF ACCOUNTS WERE P ROVIDED DURING REMAND PROCEEDINGS, WHICH WAS CONFIRMED BY T HE LEARNED CIT(A). D) THE APPELLANT SUBMITS THAT, IT IS SETTLED LAW THAT NO INFORMATION MAY BE USED AGAINST THE ASSESSEE, WHICH WAS OBTAINE D BEHIND HIS BACK, WITHOUT PROVIDING AN OPPORTUNITY TO REBUT THE SAME. THE APPELLANT RELIES ON THE BELOW AUTHORITIES TO BU TTRESS THE POINT THAT THE ADDITIONS OUGHT TO HAVE BEEN DELETED BY THE LEARNED CIT(A); 1. ANDAMAN TIMBER INDUSTRIES IN CA NO.4228 OF 2006, PRONOUNCED ON 02 ND SEPTEMBER 2015, REPORTED IN 62 TAXMANN.COM 3 AND IN 52 GST 355 . 2. GEETHANJALI EDUCATION SOCIETY (2008) 174 TAXMANN 44 0 (RAJ -HC) 3. LAXMANBHAI S PATEL V CIT 2008 174 TAXMANN 206 (GUJ -HC) 'VERACITY OF GENUINENESS MUST BE TESTED AT THE TOUC H STONE OF EVIDENCE AND NOT OTHERWISE' 'THE SWORN STATEMENT WHICH WAS RELIED UPON BY THE A UTHORITIES MUST HAVE BEEN PROVIDED TO THE ASSESSEE AND HE MUST HAVE BEEN PROVIDED AN OPPORTUNITY TO REBUT THE SWORN STATEMEN TS AND NOT DOING SO HAD DENIED THE ASSESSEE AN OPPORTUNITY TO PROVE HIS CASE AND THUS THE ADDITIONS WAS TO BE CONSIDERED AS NIL. ' E) THE APPELLANT SUBMITS THAT IN VIEW OF THE ABOVE THE ADDITIONS CONFIRMED IN RESPECT OF MR. MANJUNATH, OF RS.5,00,0 00/- BE DELETED IN THE INTEREST OF JUSTICE AND EQUITY. F) THE APPELLANT WISHES TO BRING TO THE ATTENTION OF T HE ITA NO. 1575/BANG/2014 PAGE 4 OF 17 HON'BLE TRIBUNAL, THAT THE LEARNED CIT(A) WHILE GIV ING RELIEF OF RS.74,99,133/- (I.E. RS.79,99,133/- - RS. 5,00,000/-) HAS ERRONEOUSLY MENTIONED THE RELIEF AS RS.69,99,13 3/- WHICH IS A MISTAKE. 15) ISSUE NO 2 : THE LEARNED CIT (A) ERRED IN CONFI RMING THE ADDITION OF RS 1,59,43,471/- DESPITE CONFIRMATI ON OF BALANCES BY SUNDRY CREDITORS AND A FAVOURABLE REMAN D REPORT FROM THE ASSESSING OFFICER FOR ALL OF THE AMOUNTS. A) THE LEARNED AO IN THE ORIGINAL APPEAL MADE ADDIT IONS OF RS. 2,53,62,291/- OUT OF WHICH A SUM OF RS. 94,18,8 20/- WAS DELETED BY THE LEARNED CIT(A) AND RS.1,59,43,471/- CONFIRMED. B) THE DETAILS OF THE SAID SUM OF RS 1,59,43,471/ - ARE DETAILED IN THE APPEAL MEMO AT PAGE 7 - 8 AND ARE REPRODUCED FOR CONVENIENCE; NAME AMOUNT DOCUMENT PAPER BOOK, PG NO KRISHNA 7,00,000 CONFIRMATION, ITRV, COMPUTATION 25-27 C THIRUPAL REDDY 12,00,000 CONFIRMATION, ITRV, COMPUTATION 28-30 CHOTULAL 5,00,000 CONFIRMATION, ITRV, COMPUTATION 31-33 VENKATA KRISHNA REDDY 25,95,338 CONFIRMATION, ITRV, COMPUTATION, PAN 34-37 RAMANIAH 10,45,000 CONFIRMATION, ITRV, COMPUTATION 38-40 RAGHAV REDDY 18,50,000 CONFIRMATION, ITRV, COMPUTATION 41-43 P HARIKRISHNA 12,00,000 CONFIRMATION, ITRV, COMPUTATION 44-46 RAMANA REDDY 16,00,000 CONFIRMATION, ITRV, COMPUTATION 47-49 R.NARASAPPA 10,00,000 CONFIRMATION, ITRV, COMPUTATION 50-51 MOORTHY/MARUTHI 5,00,000 CONFIRMATION, ITRV 52-53 ITA NO. 1575/BANG/2014 PAGE 5 OF 17 CHENCHULU 6,00,000 CONFIRMATION, ITRV, COMPUTATION 54-56 VENKAT REDDY 24,55,000 CONFIRMATION, PAN 57 P MAHESH 6,98,133 CONFIRMATION, ITRV, LETTER TO AO 58-60 TOTAL 1,59,43,471 C) THE APPELLANT SUBMITS THAT IT HAS FILED ALL THE DET AILS SUCH AS CONFIRMATION OF ACCOUNTS, COPIES OF ITRV AND PAN TO ESTABLISH THAT THE CREDITORS WERE GENUINE AS PER ITS BOOKS OF ACCO UNTS, WHICH HAS ALSO BEEN AFFIRMED BY THE AO IN HIS REMAND REPORT A T PARA 2.2 AND 2.3 (PAGE - 62 PAPER BOOK), WHERE HE CATEGORICALLY STATES THAT THE DOCUMENTS HAVE BEEN FURNISHED FOR THE RELEVANT AY 2 009-10 IN ALL CASES IN RESPECT OF SUNDRY CREDITORS OF RS.2,53,62, 291/- (I.E. 94,18,820/- + 1,59,43,471/-). D) THE REMAND REPORT CLEARLY STATES THAT : 'IN RESPECT OF CASES WHERE NOTICES ARE RETURNED UNS ERVED, THE AUTHORISED REPRESENTATIVE HAS FURNISHED COPIES OF CONFIRMATION , RETURN OF INCOME RELEVANT TO A.Y 2009-10.' (EMPHASI S SUPPLIED) E) IT IS SUBMITTED THAT THE AO HAS MADE A MENTION THAT THE CONFIRMATION OF SRI MOORTHY (MARUTHI) WAS FOR AN AM OUNT OF RS.10,00,000/- IN PLACE OF THE ADDITION OF RS.5,00, 000/-, TO WHICH THE APPELLANT HAS RIGHTLY POINTED OUT THAT THE BALANCE OUTSTANDING IN THE BOOKS WAS RS.10,00,000/- (PAPER BOOK PG-6 AND PG 52 -53). F) THE AO HAS STATED THAT THE CONFIRMATION IN RESPECT OF SRI P MAHESH WAS IN THE NAME OF SRI MAHESHWAR REDDY, FOR WHICH THE APPELLANT HAS SUBMITTED THAT THE NAMES WERE ALIASES IN DAILY LIFE, AND IN FACT THE LETTER BY THE CREDITOR FILED BEFORE THE AO DURING ASSESSMENT GOES TO PROVE THAT BOTH WERE ONE AND THE SAME PERSON (PAPER BOOK PG58-60). G) THE AO IN THE REMAND REPORT WHILE AFFIRMING THE COM PLIANCE MADE BY THE APPELLANT STOPPED SHORT OF STATING THAT RELIEF OUGHT TO BE ALLOWED, AND SOUGHT THE CIT(A) TO DECIDE ON THE MER ITS OF THE ABOVE TWO CREDITORS, WHICH THE LEARNED CIT(A) HAS PRESUME D TO BE FOR ALL THE CREDITORS AND CONFIRMED THE ADDITIONS. H) THE HON'BLE CIT (A) HAS ERRONEOUSLY UPHELD THE DISA LLOWANCE OF RS 1,59,43,471/- MADE BY THE LEARNED ASSESSING OFFI CER WITHOUT CONSIDERING THE DOCUMENTARY EVIDENCES PROVIDED BY T HE ASSESSEE DURING THE STAGE OF REMAND PROCEEDINGS AND IN FACT FOR DRAWING ATTENTION TO TWO ITEMS THE ASSESSING OFFICER HAS NO T MADE ANY ADVERSE ITA NO. 1575/BANG/2014 PAGE 6 OF 17 FINDINGS ON ANY OF THE CREDITORS. HENCE THE BELOW F INDING OF THE CIT(A) WAS NOT WARRANTED AND WAS WITHOUT APPRECIATI NG THE REMAND REPORT IN LETTER AND SPIRIT. 'EVEN BEFORE ME, DURING THE APPEAL PROCEEDINGS, THE APPELLANT HAS NOT BEEN ABLE TO PRODUCE ANY DOCUMENTARY EVIDENCE I N SUPPORT OF THE CLAIMS MADE IN RESPECT OF SUNDRY CREDITORS OVER AND ABOVE RS.94,18,820/- WHICH, ACCORDING TO THE AO, COULD BE TREATED AS GENUINE. I AM CONVINCED WITH THE STAND TAKEN BY THE AO IN THE REMAND REPORT. HENCE, WHILE ADDITION TO THE EXTENT OF RS.1,59,43,471/- IS CONFIRMED, ADDITION TO THE EXTE NT OF RS.94,18,820/- IS DELETED'. I) THE HON'BLE CIT(A) HAS ERRED IN CONFIRMING THE ABOV E ITEMS OF OUTSTANDING SUB-CONTRACTOR CREDITORS, IN SPITE OF P ROVIDING DOCUMENTARY EVIDENCES AND BY PROVING BEYOND REASONA BLE DOUBT, DOCUMENTS SUCH AS ITR V, COMPUTATION SHEET AND RETU RNS FILED BY RESPECTIVE SUB-CONTRACTORS. THE FACT THAT TAXES HAV E BEEN PAID BY THE SAID PERSONS FORTIFY OUR CLAIMS. J) IN VIEW OF THE ABOVE THE APPELLANT SUBMITS THAT IT HAS DISCHARGED ITS ONUS OF PROVING THAT THE CREDITORS WERE GENUINE , HAVE OFFERED THE INCOME TO TAX AND HAVE ALSO AFFIRMED THE BALANCES T O THE SATISFACTION OF THE AO, WHO HAS ALSO AFFIRMED THE VERACITY OF TH E PAN IN HIS REMAND REPORT. G) THE APPELLANT HAS DISCHARGED ITS ONUS OF ESTABLISHI NG THE IDENTITY AND PROVED THE GENUINENESS OF THE LIABILITIES WITH RESPECT TO ABOVE REFERRED SUB-CONTRACTOR AS REQUIRED UNDER THE PROVI SION OF INDIAN EVIDENCE ACT. H) THE APPELLANT ALSO SUBMITS THAT THE CREDITOR FOR SU B-CONTRACT FOR RS 6,98,133/- REPRESENTED BY THE NAME P MAHESH IN B OOKS OF APPELLANTS AS AGAINST THE NAME APPEARING IN RETURN OF INCOME AS MAHESHWARAREDDY, IS IN FACT, AS ALREADY EXPLAINED B Y AUTHORISED REPRESENTATIVE APPARENT IN REMAND REPORT, IS IN REA LITY ALIASES. HENCE THE SHORT NAME ENTERED IN BOOKS MUST NOT BE C RITERIA TO DISALLOW THE EXPENDITURE, BY MERE SURMISE THAT ARE OF DIFFERENT TWO PARTIES. I) THE APPELLANT REITERATES THAT THAT THE HON'BLE CIT- (A) BY LOOKING AT THE ABOVE TWO DISCREPANCIES (HAS DISALLOWED THE ENTIRE AMOUNT OF RS1,59,43,471/-) WHICH IS CONTRARY TO THE REMAND REPORT OF THE ASSESSING OFFICER AND MATERIAL ON RECORD. J) THE APPELLANT HAS DISCHARGED ITS BY PROVIDING THE D ETAILS OF ITR- V AND COMPUTATION AND CONFIRMATION LETTERS FROM RES PECTIVE CREDITORS. ITA NO. 1575/BANG/2014 PAGE 7 OF 17 K) THE RESPECTIVE SUNDRY CREDITORS HAVE OFFERED THE AM OUNT IN THEIR RESPECTIVE RETURN OF INCOME. L) IT IS SUBMITTED THAT THE APPELLANT HAS FURNISHED TH E CONFIRMATION OF ALL THE CREDITORS AND THE CONTRACTORS AS REQUIRE D BY THE ASSESSING OFFICER AS ON THE DATE OF THE BALANCE SHEET. THE AS SESSING OFFICER HAS VERIFIED THE PAN, RETURN OF INCOME, CONFIRMATION OF ACCOUNTS ETC OF ALL THE CREDITORS AND HAD MADE A NOTE IN REMAND REP ORT THAT THE ASSESSEE HAS FURNISHED THE DETAILS OF CONFIRMATION OF ALL THE PARTIES. M) THE LEARNED ASSESSING OFFICER VERIFIED ALL THE RELE VANT RECORDS AND HAS IN THE REMAND REPORT STATED THAT THE ASSESS EE HAS SUBMITTED ALL THE REQUESTED DOCUMENTS TO THE SATISFACTION OF THE AO. N) THE APPELLANT RELIES ON BELOW DECISIONS TO BUTTRESS THE FACTS OF THE CASE WHEREIN IT HAS BEEN HELD THAT 'LIABILITY OF APPELLANT IS FULFILLED ONCE THE CONFI RMATION AND PAN ARE SUBMITTED AND VERIFIED BY AO' 1. CIT VS ORISSA CORPORATION (P) LTD 159 ITR 78 (SC ) 2. CIT VS ROHINI BUILDERS 254 ITR (ST) 275 O) THE APPELLANT SUBMITS THAT 'MERE NON-ATTENDANCE OF CREDITOR TO SUMMONS ISSUED DOES NOT MAKE A GROUND FOR ADDITION TO ASSESSES INCOME.' FURTHER 'IN CASE OF PERSON WHO ARE CONTRAC TORS OR WITH WHOM REGULAR BUSINESS TRANSACTIONS ARE MADE, THE TR ANSACTIONS WITH THE CREDITORS SHOULD NOT BE ADDED TO THE INCOME RET URNED SINCE THEY ARE IN THE NORMAL COURSE OF THE BUSINESS. RELIANC E IS PLACED ON THE DECISION OF APEX COURT IN THE CASE OF ANIS AHMAD AN D SONS 297 ITR 441. P) IN VIEW OF THE ABOVE SUBMISSION AND THE FINDINGS IN THE REMAND REPORT THE DISALLOWANCE OF RS.1,59,43,471/- IS WITH OUT ANY BASIS NOR REASONING. HENCE THE ORDER OF THE CIT (A) IS CONTRA RY TO THE REMAND REPORT AND THE ADDITIONS CONFIRMED ARE WITHOUT ANY BASIS AND NEEDS TO BE DELETED ON THE FACTS OF THE CASE. 16) ISSUE NO 3 : THE LEARNED CIT (A) ERRED IN CONFIRMING ADDITIONS TO THE TUNE OF RS 85,000/- IN RESPECT OF PURCHASES. A) THE ASSESSING OFFICER HAD MADE ADDITION OF RS 8,81, 795/- ON ACCOUNT OF PURCHASE OF MATERIALS. THE CIT(A) ON APP RECIATION OF THE RECORDS FILED AND FINDING OF THE AO IN THE REMAND R EPORT, DELETED A SUM OF RS 7,96,795/-AND CONFIRMED A SUM OF RS 85,00 0/- (RS.20,000 + RS.65,000/-). B) THE HON'BLE CIT (A) CONFIRMED THE ADDITION OF RS 85 ,000/- BASED ON THE REMAND REPORT OF THE LEARNED ASSESSING OFFIC ER (PARA 2.7 AND 2.8 AT PAPER BOOK, PAGE 63). ITA NO. 1575/BANG/2014 PAGE 8 OF 17 C) THE APPELLANT SUBMITS THAT THE TOTAL PURCHASES MADE AT M/S SRK AGENCIES WAS TO THE TUNE OF RS.3,87,553/- WHICH WAS SUPPORTED BY VALID BILLS AND FILED ALONG WITH THE LEDGER ACCOUNT FOR THE YEAR AND WHEN COMPARED WITH THE VENDORS LEDGER ACCOUNT, THE DIFFERENCE NOTICE TO THE EXTENT OF APPROXIMATELY 20,000/- WAS DUE TO AN ERRONEOUS ENTRY MADE BY THE VENDOR, WHOSE LEDGER AC COUNT REFLECTED A LOWER SUM. D) THE APPELLANT SUBMITS THAT IT HAS ACCOUNTED FOR THE BILLS METICULOUSLY AND THE BALANCE OF M/S SRK AGENCIES, A S ON THE DATE OF BALANCE SHEET WAS TRUE AND ACCURATE AND THAT THE VE NDOR HAD A RUNNING ACCOUNT WITH THE APPELLANT IN THE FOLLOWING YEARS. E) THE APPELLANT FURTHER SUBMITS THAT AN ADVANCE OF RS .65,000/- WAS MADE DURING THE YEAR PRIOR TO THE AY 2009-10 FOR SU PPLIES, WHICH WERE NOT RECEIVED WITHIN THE CLOSE OF THE YEAR AND UPON RECEIPT OF THE GOODS, THE SAID ADVANCE WAS TRANSFERRED TO THE APPROPRIATE HEAD OF ACCOUNT, AND INADVERTENTLY CLAIMED AS PAID FOR M ATERIALS PURCHASED DURING THE YEAR. F) IT IS SUBMITTED THAT THE ADDITIONS CONFIRMED WAS ER RONEOUS AND NEEDS TO BE DELETED AS RS 65,000/- PAID AS ADVANCE WAS NOT CLAIMED IN ANY EARLIER YEAR, BUT ONLY ADJUSTED DURING THE I MPUGNED ASSESSMENT YEAR. G) IN VIEW OF THE ABOVE SUBMISSION AND THE FINDINGS IN THE REMAND REPORT THE DISALLOWANCE OF RS.85,000/- IS WITHOUT A NY BASIS. HENCE THE ORDER OF THE CIT(A) IS CONTRARY TO THE REMAND R EPORT AND THE ADDITIONS CONFIRMED NEEDS TO BE DELETED ON THE FACT S OF THE CASE. 5. IN RESPECT OF GROUND NO. 4, REGARDING ADDITION O F RS. 5 LAKHS FOR WHICH PARA NO. 14 OF THE SYNOPSIS IS RELEVANT, WE FIND THAT AS PER THE SUBMISSION OF LD. AR OF ASSESSEE, THE AO WHILE PASSING ASSESSMENT ORDER HAS OBTAINED A SWORN STATEMENT FROM SRI MANJUNATH THAT NO AMOUNT WAS DUE TO HIM AND THE ASSESSEE SOUGHT AN OPPORTUNITY TO REBUT THE SAME BY WAY OF C ROSS EXAMINATION WHICH WAS DENIED AND THE ADDITION WAS MADE TO THE EXTENT OF RS. 5 LAKHS AND THE AO HAS ALSO ADMITTED THE POSITION THAT DURING REMAND P ROCEEDINGS, THE ASSESSEE COULD NOT PRODUCE COPY FROM THIS PARTY SRI MANJUNAT H BUT THIS IS ALSO TRUE THAT SWORN STATEMENT OBTAINED BY THE AO FROM SHRI MANJUN ATH IS BEHIND THE BACK OF THE ASSESSEE AND THEREFORE, THE AO SHOULD HAVE PROV IDED AN OPPORTUNITY TO THE ASSESSEE TO CROSS EXAMINE SHRI MANJUNATH. UNDER TH ESE FACTS, WE FEEL IT PROPER TO RESTORE THIS MATTER BACK TO THE FILE OF A O FOR FRESH DECISION AFTER ITA NO. 1575/BANG/2014 PAGE 9 OF 17 PROVIDING OPPORTUNITY TO ASSESSEE TO CROSS EXAMINE SHRI MANJUNATH. GROUND NO. 4 OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOS ES. 6. REGARDING GROUND NO. 3 IN RESPECT OF MAJOR ADDIT ION OF RS. 1,59,43,471/-, WE FIND THAT THE REMAND REPORT SUBMITTED BY THE AO IS AVAILABLE ON PAGES 61 TO 64 OF PAPER BOOK. THE RELEVANT PARAS IN THE REMAND RE PORT ARE IN PARA NOS. 2 TO 2.10 AND THESE PARAS ARE REPRODUCED BELOW FOR THE S AKE OF READY REFERENCE. 2) SUNDRY CREDITORS RS.2,53,62,291/- 2.1 THE ASSESSEE HAD DEBITED AN AMOUNT OF RS.2,53,6 2,291/- AS PAYABLE. THE AO CALLED FOR INFORMATION U/S.133(6) A ND SUMMONS REQUIRING THE PRESENCE OF THE SUBCONTRACTORS. SOME NOTICES WERE SERVED AND ACKNOWLEDGEMENTS PLACED ON RECORD, BUT N O ONE APPEARED BEFORE THE ASSESSING OFFICER. SOME OF THE NOTICES RETURNED BACK UNSERVED BY THE POSTAL AUTHORITIES. HENCE, THE AO M ADE THE ADDITION OF RS.2,53,62,291/-. 2.2 DURING THE COURSE OF REMAND PROCEEDINGS, THE AS SESSEES AUTHORISED REPRESENTATIVE HAS FURNISHED THE COPIES OF CONFIRMATION, PAN DETAILS, RETURNS OF INCOME RELEVANT TO A.Y.2009 -10 IN ALL THE CASES. THE SAME HAVE BEEN VERIFIED. COPY OF RETURN OF INCOME IN THE CASE OF SRI SURENDRA AND SRI. ASHOK KUMAR HAS NOT B EEN FURNISHED. AS VERIFIED THE PAN OF THE ABOVE PARTIES ARE IN THE JU RISDICTION OF RANGE- 7. IN VIEW OF THE ABOVE, THE AMOUNT OF SUNDRY CREDI TORS TO THE TUNE OF RS.94,18,820/- MAY BE TREATED AS GENUINE. 2.3 IN RESPECT OF CASES WHERE NOTICES ARE RETURNED UNSERVED, THE AUTHORISED REPRESENTATIVE HAS FURNISHED COPIES OF C ONFIRMATION, RETURN OF INCOME RELEVANT TO A.Y.2009-10. ON VERIFICATION OF THE DETAILS SUBMITTED, IT IS NOTICED THAT IN THE CASE OF SRI. M OORTHY (RS.5,00,000/-), THE RETURN OF INCOME SUBMITTED BEARS THE NAME OF SR I. MARUTHI AND THE CONFIRMATION GIVEN IS FOR RS.10 LAKHS AS AGAINST RS .5 LAKHS. WITH REGARDS TO THE NAME, THE AR SUBMITTED THAT IT IS A TYPOGRAPHICAL ERROR BECAUSE TDS HAS BEEN DONE IN THIS CASE AND RETURN H AS ALSO BEEN FILED BY THE PARTY. WITH REGARDS TO THE DIFFERENCE OF RS. 5 LAKHS, AR HAS SUBMITTED THAT THE ACTUAL BALANCE OUTSTANDING AS PE R THE SCHEDULE FORMING PART OF THE FINANCIAL STATEMENTS IS RS 10 A ND HENCE THE SAME SHOULD BE ACCEPTED. IN THE CASE OF SRI. MAHESH, THE RETURN OF INCOME SUBMITTED BY THE AUTHORISED REPRESENTATIVE IS IN TH E NAME OF SRI. MAHESHWARA REDDY WHERE AS THE NAME APPEARING IN CON FIRMATION IS THAT OF P MAHESH. HOWEVER, THE AUTHORIZED REPRESENT ATIVE, SUBMITTED THAT THEY ARE NOTHING BUT ALIASES IN DAY TO DAY LIF E. HENCE I REQUEST LEARNED CIT(A) TO DECIDE THE CASE ON MERITS. 2.4 REGARDING ADDITION OF RS 8,81,795/ . THE ASSESSEE HAD SHOWN ITA NO. 1575/BANG/2014 PAGE 10 OF 17 PURCHASES WITH THE AMOUNTS PAID TO VARIOUS PARTIES TO THE TUNE OF RS.17,86,011/-. THE AO DURING THE COURSE OF SCRUTIN Y PROCEEDINGS, CALLED FOR CONFIRMATION U/S.133(6) FROM THE CORRESP ONDING PARTIES FROM WHOM THE ASSESSEE CLAIMED TO HAVE MADE PURCHAS ES. THE CONFIRMATIONS FROM THE PARTIES WAS RECEIVED TO THE EXTENT OF RS.9,04,216/-. HENCE, THE DIFFERENCE OF RS.8,81,795 /- WAS ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE. 2.5 DURING THE COURSE OF REMAND PROCEEDINGS, THE AS SESSEE'S AUTHORISED REPRESENTATIVE HAS SUBMITTED A NOTE ENCL OSING LEDGER EXTRACTS IN RESPECT OF M/S. MEENAKSHI PAINTS AND SU PPLIERS, M/S SRK AGENCIES, M/S. S R ENTERPRISES, M/S. SHREE RENUKA E NTERPRISES, SREE BALAJI PLYWOODS. AFTER EXAMINING THE DETAILS FURNIS HED, MY COMMENTS ARE AS UNDER. 2.6 IN RESPECT OF M/S. MEENAKSHI PAINTS AND SUPPLIE RS, THE AUTHORISED REPRESENTATIVE HAS SUBMITTED LEDGER EXTRACT REFLECT ING THE TOTAL PAYMENTS MADE FOR PURCHASE OF PAINT. OUT OF THE TOT AL AMOUNT OF RS.5,64,483/- INCURRED TOWARDS PAINT, THE AMOUNT OF RS.2,11,184/- PERTAINING TO THE SAID PARTY IS CONFIRMED BY THE AB OVE PARTY. THE BALANCE AMOUNT OF RS.3,53,299/- ARE EXPENSES INCURR ED TOWARDS PAINTS PURCHASED FROM OTHER SUPPLIERS. 2.7 IN RESPECT OF M/S.SRK AGENCIES, OUT OF RS.3,87, 553/- CLAIMED BY THE ASSESSEE, THE PARTY HAS CONFIRMED AN AMOUNT OF RS.3,67,832/-. IN THE NOTE SUBMITTED BY THE AUTHORISED REPRESENTATIVE , HE STATES THAT THE AMOUNT OF SUPPLIES MADE BY THE PARTY DURING THE YEA R WAS RS.3,67,832/-, BUT THE AMOUNT WAS WRONGLY TYPED AS RS.3,87,832/- WHILE MAKING THE SUBMISSIONS DURING THE COURSE OF S CRUTINY PROCEEDINGS. 2.8 IN RESPECT OF S.R.ENTERPRISES, IT IS SUBMITTED BY THE ASSESSEE THAT THE AMOUNT OF RS.65,000/- WAS THE ADVANCE PAID IN T HE PRECEDING YEAR FOR SUPPLIES WHICH WAS ADJUSTED DURING THE YEAR. TH E ASSESSEE INADVERTENTLY CLAIMED THE ABOVE AMOUNT AS PAYMENT M ADE FOR MATERIALS PURCHASED DURING THE YEAR. 2.9 AS SEEN FROM THE LEDGER EXTRACTS OF M/S. SHREE RENUKA ENTERPRISES, AN AMOUNT OF RS.3,25,200/-, AS AGAINST RS.5,69,120/ - CLAIMED BY THE ASSESSEE, HAS BEEN RECEIVED BY THEM FROM THE ASSESS EE ON ACCOUNT OF PURCHASE OF MATERIALS. THE ASSESSEE IS STATING THAT OPENING BALANCE OF RS.2,65,420/- WAS WRONGLY INCLUDED IN THE DETAILS O F PAYMENTS DURING THE YEAR. 2.10 IN THE CASE OF SREE BALAJI GLASS &PLYWOODS, TH E ASSESSEE HAS SUBMITTED THAT THE TRANSACTION PERTAINS TO M/S. SRE E BALAJI PLYWOODS AND CONFIRMATION HAS BEEN FILED AND HE FURTHER SUBM ITTED THAT IT DOES NOT PERTAIN TO SREE BALAJI GLASS &PLYWOODS. TO PROV E HIS POINT, THE AR SUBMITTED A SAMPLE BILL AND CONFIRMATION. AS PER THE LEDGER EXTRACT SUBMITTED BY THE ASSESSEE, THE ASSESSEE HAS PAID AN AMOUNT OF ITA NO. 1575/BANG/2014 PAGE 11 OF 17 RS.1,99,855/- TO SREE BALAJI PLYWOODS. THE ASSESSEE HAS SUBMITTED RELEVANT DOCUMENTS IN TH IS REGARD, THE LEARNED CIT (A) MAY KINDLY DECIDE THE CASE ON MERIT S AND FACTS OF THE CASE. 7. FROM THE ABOVE PARAS OF THE REMAND REPORT, WE FI ND THAT OUT OF THE TOTAL AMOUNT SHOWN BY THE ASSESSEE AS PAYABLE TO SUNDRY CREDITOR S OF RS. 2,53,62,291/-, THE AO HAS STATED IN THE REMAND REPORT THAT THE ASSESSE E HAS FURNISHED THE COPY OF CONFIRMATION, PAN DETAILS AND RETURN OF INCOME RELE VANT TO ASSESSMENT YEAR 2009-10 IN ALL THE CASES AND THE SAME HAS BEEN VERI FIED. HE FURTHER STATED IN PARA NO. 2.2 OF THE REMAND REPORT THAT COPY OF RETU RN OF INCOME IN THE CASE OF SRI SURENDRA AND SRI ASHOK KUMAR HAD NOT BEEN FURNI SHED. HE ALSO REPORTED THAT IN VIEW OF THE ABOVE, THE AMOUNT OF SUNDRY CRE DITORS TO THE TUNE OF RS. 94,18,820/- MAY BE TREATED AS GENUINE. THE LD. CIT (A) HAS DELETED THE ADDITION TO THE EXTENT OF RS. 94,18,820/- AND CONFIRMED THE BALANCE ADDITION OF RS. 1,59,43,471/-. AS PER THE DETAILS AVAILABLE ON PAG E NO. 7 OF THE ASSESSMENT ORDER, THE AMOUNT OUTSTANDING IN THE NAME OF MR. SU RENDRA IS RS. 5,93,820/- AND MR. ASHOK KUMAR IS RS. 32 LAKHS. ON PAGE NOS. 8 AND 9 OF THE ASSESSMENT ORDER IS THE DETAIL OF THE PARTIES IN RE SPECT OF WHICH THE ADDITION OF RS. 1,59,43,471/- WAS CONFIRMED BY CIT(A) AND IN TH E LIST OF THESE 13 PARTIES, THE NAMES OF MR. SURENDRA AND MR. ASHOK KUMAR IS NO T APPEARING AND THEREFORE, IT IS SEEN THAT NO ADDITION IS CONFIRMED BY CIT(A) IN RESPECT OF MR. SURENDRA AND MR. ASHOK KUMAR. IT MEANS THAT AS PER PARA NO. 2.2 OF THE REMAND REPORT, THE LD. AR OF ASSESSEE HAS FURNISHED THE COPY OF CONFIRMATION, PAN DETAILS RELEVANT TO ASSESSMENT YEAR 2009-10 IN ALL THE CASES EXCEPT FOR THOSE TWO CASES FOR WHICH COPY OF RETURN OF INCOME WAS NOT FURNISHED BUT THE ADDITION WAS NOT SUSTAINED BY CIT(A) FOR THOSE TWO PERSONS ALSO I.E. MR. SURENDRA AND MR. ASHOK KUMAR. IN THE PAPER BOOK BEFORE US ALSO, THE COPY OF CONFIRMATIONS, COMPUTATION OF INCOME AND INCOME TAX RETURN FOR THE FIRST CREDITOR SHRI KRISHNA RS. 7 LAKHS IS AVAILABLE ON PAGES 25 T O 27 OF PAPER BOOK. SIMILARLY FOR THE SECOND PARTY SHRI C. THIRUPAL RED DY RS. 12 LAKHS, THE SAME DOCUMENTS ARE AVAILABLE ON PAGES 28 TO 30 OF PAPER BOOK. FOR THE THIRD PARTY SHRI CHOTULAL RS. 5 LAKHS, THE SAME DOCUMENTS ARE A VAILABLE ON PAGES 31 TO 33 OF PAPER BOOK AND FOR THE FOURTH PARTY SHRI VENKATA KRISHNA REDDY RS. 25,95,338/-, THE SAME DOCUMENTS ARE AVAILABLE ON PA GES 34 TO 37 OF PAPER ITA NO. 1575/BANG/2014 PAGE 12 OF 17 BOOK. FOR THE NEXT PARTY SHRI RAMANAIAH RS. 10.45 L AKHS, THE SAME DOCUMENTS ARE AVAILABLE ON PAGES 38 TO 40 OF PAPER BOOK AND FOR THE NEXT PARTY SHRI RAGAHAV REDDY RS. 18.50 LAKHS, THE SAME DOCUME NTS ARE AVAILABLE ON PAGES 41 TO 43 OF PAPER BOOK. FOR THE NEXT PARTY S HRI P. HARIKRISHNA RS. 12 LAKHS, THE SAME DOCUMENTS ARE AVAILABLE ON PAGES 44 TO 46 OF PAPER BOOK. IN RESPECT OF THE NEXT PARTY SHRI RAMANA REDDY RS. 16 LAKHS, THE SAME DOCUMENTS ARE AVAILABLE ON PAGES 47 TO 49 OF PAPER BOOK. FOR THE NEXT PARTY SHRI R. NARASAPPA RS. 10 LAKHS, THE SAME DOCUMENTS ARE AVAILABLE ON PAGES 50 TO 51 OF PAPER BOOK. FOR THE NEXT PARTY SHRI MO ORTHY / MARUTHI RS. 5 LAKHS, THE SAME DOCUMENTS ARE AVAILABLE ON PAGES 52 TO 53 OF PAPER BOOK. FOR THE NEXT PARTY SHRI CHENCHULU RS. 6 LAKHS, THE SAME DOC UMENTS ARE AVAILABLE ON PAGES 54 TO 56 OF PAPER BOOK. FOR THE NEXT PARTY S HRI VENKAT REDDY RS. 24.55 LAKHS CONFIRMATION IS AVAILABLE ON PAGE NO. 57 ALON G WITH PAN. FOR THE NEXT PARTY SHRI P. MAHESH RS. 6,98,133/-, THE SAME DOCUM ENTS ARE AVAILABLE ON PAGES 58 TO 60 OF THE PAPER BOOK. HENCE IT IS SEEN THAT ON THE BASIS OF SAME DOCUMENTS, THE AO IN THE REMAND REPORT HAS ACCEPTED THAT THE AMOUNT OF SUNDRY CREDITORS TO THE TUNE OF RS. 94,18,820/- MAY BE TREATED AS GENUINE AND LEARNED CIT (A) HAS DELETED THOSE ADDITIONS BUT HE HAS SUSTAINED THE ADDITION FOR THE REMAINING PARTIES, ALTHOUGH FOR THOSE PARTI ES ALSO, SAME DOCUMENTS ARE BROUGHT ON RECORD AND THE ONLY DIFFERENCE FACTOR IS THAT THE NOTICE ISSUED TO THEM HAVE RETURNED UNSERVED AS NOTED BY THE AO IN P ARA NO. 2.3 OF REMAND REPORT . REGARDING SOME DIFFERENCES NOTICED BY THE AO IN THE REMAND REPORT SUCH AS THE NAME OF SHRI MOORTHY AND SHRI MARUTHI A ND THE AMOUNT OF CONFIRMATION BEING RS. 10 LAKHS AS AGAINST RS. 5 LA KHS, IT WAS SUBMITTED BY ASSESSEE BEFORE THE AO IN THE REMAND PROCEEDINGS TH AT THIS WAS A TYPOGRAPHICAL MISTAKE AND DIFFERENCE IN AMOUNT WAS ALSO SUBMITTED THAT THE ACTUAL AMOUNT OUTSTANDING WAS RS. 10 LACS AND HENCE , THE SAME SHOULD BE ACCEPTED. SIMILARLY FOR THE DIFFERENCE IN NAME OF SHRI MAHESH AND SHRI MAHESHWARA REDDY, IT WAS EXPLAINED THAT THEY ARE NO THING BUT ALIASES IN DAY TO DAY LIFE. REGARDING THE SMALL DIFFERENCE IN RESPEC T OF OTHER PARTIES ALSO, EXPLANATION WAS FURNISHED BY THE ASSESSEE BEFORE TH E AO IN REMAND PROCEEDINGS AS NOTED BY THE AO IN PARA NOS. 2.4 TO 2.10 OF THE REMAND REPORT AND THEREAFTER, THE AO HAS REPORTED THAT THE ASSESS EE HAS SUBMITTED RELEVANT ITA NO. 1575/BANG/2014 PAGE 13 OF 17 DOCUMENTS IN THIS REGARD AND CIT(A) MAY KINDLY DECI DE THE CASE ON MERITS AND FACTS OF THE CASE. 8. IN THE LIGHT OF THESE FACTS, WE EXAMINE THE APPL ICABILITY OF TWO JUDGMENTS OF HONBLE APEX COURT CITED BY LD. AR OF ASSESSEE IN T HE SYNOPSIS I.E. THE JUDGMENT RENDERED IN THE CASE OF CIT VS. ORISSA COR PORATION (P) LTD. AS REPORTED IN 159 ITR 78 AND THE JUDGMENT RENDERED IN THE CASE OF ANIS AHMAD AND SONS AS REPORTED IN 297 ITR 441. IN THE SECOND JUDGMENT RENDERED IN THE CASE OF ANIS AHMAD AND SONS (SUPRA), IT WAS HELD BY HONBLE APEX COURT THAT THE ASSESSEE COULD NOT BE TREATED UNEQUALLY BETWEEN THOSE TRADERS WHO HAD APPEARED BEFORE THE ASSESSING AUTHORITY AND SUPPORT ED THE CLAIM OF THE APPELLANT-ASSESSEE AND ON THE CONTRARY DRAWING ADVE RSE INFERENCE AGAINST THE APPELLANT-ASSESSEE FOR NON- APPEARANCE OF OTHER FIV E TRADERS TO WHOM SUMMONS OF THE ASSESSING AUTHORITY COULD NOT BE SER VED. IN THE PRESENT CASE ALSO, A CONTRARY INFERENCE IS BEING DRAWN MAINLY ON THE BASIS THAT NOTICES ISSUED TO THEM HAVE COME BACK UNSERVED. REGARDING SOME DIFFERENCES NOTICED BY THE AO IN THE REMAND REPORT SUCH AS THE NAME OF SHRI MOORTHY AND SHRI MARUTHI AND THE AMOUNT OF CONFIRMATION BEING R S. 10 LAKHS AS AGAINST RS. 5 LAKHS, IT WAS SUBMITTED BY ASSESSEE BEFORE THE AO IN THE REMAND PROCEEDINGS THAT THIS WAS A TYPOGRAPHICAL MISTAKE A ND FOR DIFFERENCE IN AMOUNT ALSO, IT WAS SUBMITTED THAT THE ACTUAL AMOUNT OUTST ANDING IS RS. 10 LACS AND HENCE, THE SAME SHOULD BE ACCEPTED. SIMILARLY, FOR THE DIFFERENCE IN NAME OF SHRI MAHESH AND SHRI MAHESHWARA REDDY, IT WAS EXPLA INED THAT THEY ARE NOTHING BUT ALIASES IN DAY TO DAY LIFE. REGARDING THE SMALL DIFFERENCE IN RESPECT OF OTHER PARTIES ALSO, EXPLANATION WAS FURNISHED BY THE ASSESSEE BEFORE THE AO IN REMAND PROCEEDINGS AS NOTED BY THE AO IN PARA NO S. 2.4 TO 2.10 OF THE REMAND REPORT AND THEREAFTER, THE AO HAS REPORTED T HAT THE ASSESSEE HAS SUBMITTED RELEVANT DOCUMENTS IN THIS REGARD AND CIT (A) MAY KINDLY DECIDE THE CASE ON MERITS AND FACTS OF THE CASE. THE CIT(A) H AS REPRODUCED PARA NOS. 2.4 TO 2.10 OF THE REMAND REPORT BUT IN PARA NO. 3.6 OF HIS ORDER, HE HAS ALLOWED RELIEF OF RS. 94,18,820/- AS STATED BY THE AO IN TH E REMAND REPORT BUT CONFIRMED THE ADDITION OF THE BALANCE AMOUNT FOR WHICH THE AO STATED IN THE REMAND REPORT THAT THE ASSESSEE HAS SUBMITTED RELEVANT DOC UMENTS IN THIS REGARD AND THE LEARNED CIT (A) MAY KINDLY DECIDE THE CASE ON M ERITS AND FACTS OF THE CASE. ITA NO. 1575/BANG/2014 PAGE 14 OF 17 LEARNED CIT (A) HAS NOT CONSIDERED AND DISCUSSED TH ESE DOCUMENTS AND FACTS AND STRAIGHTAWAY CONFIRMED THE BALANCE ADDITION. FO R THE SAKE OF READY REFERENCE WE REPRODUCE PARA NOS. 3.5 AND 3.6 OF THE ORDER OF CIT(A). 3.5 I HAVE CAREFULLY CONSIDERED THE APPELLANT'S SU BMISSIONS AND PERUSED THE ASSESSMENT ORDER/REMAND REPORT OF THE A O. IT IS CLEAR FROM THE REMAND REPORT THAT THE APPELLANT HAS EXPLA INED MOST OF THE AMOUNTS INVOLVED IN RESPECT OF THE PAYMENTS MADE TO SUB-CONTRACTORS. AT PAR 1.2, THE AO HAS STATED THAT THE APPELLANT HA S NOT BEEN ABLE TO EXPLAIN THE PAYMENT OF RS.5,00,000/- TO SRI MANJUNA TH. HENCE, THE ADDITION TO THE EXTENT OF RS.5,00,000/- IS SUSTAINE D. THE APPELLANT GETS A RELIEF OF RS.69,99,133/-. 3.6 EVEN IN RESPECT OF SUNDRY CREDITORS AMOUNTING T O RS.2,53,62,291/-, ACCORDING TO THE AO, THE APPELLANT PRODUCED CONFIRM ATION AND OTHER DETAILS SUCH AS PAN, RETURNS OF INCOME AND THEY ARE SAID TO BE ASSESSED IN THE JURISDICTION OF RANGE-7, BANGALORE. THE AO HAS STATED THAT, IN THE CASES OF SRI SURENDRA AND SHRI ASHOK K UMAR, NO DETAILS HAVE BEEN FURNISHED. IN THE CASE OF SHRI MOORTHY (A LIAS SHRI MARUTHI), THE AMOUNT SHOWN IN THE STATEMENTS WAS ONLY RS.5 LA KHS WHEREAS THE CONFIRMATION GIVEN IS FOR RS.10 LAKHS. HENCE, THE A PPELLANT IS ENTITLED TO RELIEF ONLY TO THE EXTENT OF RS.5 LAKHS OUT OF R S.10 LAKHS CLAIMED AS PER CONFIRMATION. EVEN BEFORE ME, DURING THE APPEAL PROCEEDINGS, THE APPELLANT HAS NOT BEEN ABLE TO PRODUCE ANY DOCUMENT ARY EVIDENCE IN SUPPORT OF THE CLAIMS MADE IN RESPECT OF SUNDRY CRE DITORS OVER AND ABOVE RS.94,18,820/- WHICH, ACCORDING TO THE AO, CO ULD BE TREATED AS GENUINE. I AM CONVINCED WITH THE STAND TAKEN BY THE AO IN THE REMAND REPORT. HENCE, WHILE ADDITION TO THE EXTENT OF RS.1 ,59,43,471/- IS CONFIRMED, ADDITION TO THE EXTENT OF RS. 94,18,820/ - IS DELETED. 9. FROM THE ABOVE PARAS REPRODUCED FROM THE ORDER O F CIT(A), IT IS SEEN THAT IN RESPECT OF ADDITION OF RS. 5 LAKHS ON ACCOUNT OF PA YMENT TO SHRI MOORTHY / MARUTHI, IT IS HELD BY CIT(A) THAT THE ASSESSEE IS ENTITLED TO RELIEF ONLY TO THE ITA NO. 1575/BANG/2014 PAGE 15 OF 17 EXTENT OF RS. 5 LAKHS OUT OF RS. 10 LAKHS BUT HE FA ILED TO UNDERSTAND HOW HE CAN CONFIRM THE ADDITION OF RS. 5 LAKHS BECAUSE THE ASSESSEE IS SHOWING RS. 5 LAKHS AS OUTSTANDING AND THE PARTY IS CONFIRMING RS . 10 LAKHS. IT WAS SUBMITTED BY ASSESSEE BEFORE THE AO IN THE REMAND P ROCEEDINGS THAT THE ACTUAL BALANCE IS RS. 10 LAKHS AND THE PARTY ALSO H AS CONFIRMED RS. 10 LAKHS THEN NO PART CAN BE ADDED OUT OF RS. 10 LAKHS. THE CIT(A) IN THE PRESENT CASE HAS HELD THAT THE ASSESSEE HAS NOT BEEN ABLE TO PRO DUCE ANY DOCUMENTARY EVIDENCE IN SUPPORT OF THE CLAIMS MADE IN RESPECT O F SUNDRY CREDITORS OVER AND ABOVE RS. 94,18,820/- WHICH, ACCORDING TO THE AO, C OULD BE TREATED AS GENUINE BUT HE HAS OMITTED TO CONSIDER THE REMAND REPORT IN PROPER PERSPECTIVE BECAUSE IN THE LAST PARA OF THE REMAND REPORT, THE AO HAS STATED THAT THE ASSESSEE HAS SUBMITTED RELEVANT DOCUMENTS AND THE C IT(A) MAY KINDLY DECIDE THE CASE ON MERITS AND FACTS OF THE CASE. IT MEANS REGARDING THE OTHER CLAIMS MADE IN REMAND PROCEEDINGS IN RESPECT OF VARIOUS PA RTIES, NO FINDING IS GIVEN BY AO IN THE REMAND REPORT AND THE FINDING WAS TO B E GIVEN BY CIT(A) AND THE CIT(A) ALSO HAS NOT GIVEN ANY FINDING AND CONFIRMED THE ADDITION OF RS. 1,59,43,471/- AND DELETED RS. 94,18,820/- FOR WHICH THE AO HAS CATEGORICALLY STATED IN THE REMAND REPORT THAT SUNDRY CREDITORS O F RS. 94,18,820/- MAY BE TREATED AS GENUINE. FOR THE REMAINING CREDITORS, T HE DOCUMENTS MADE AVAILABLE IN REMAND PROCEEDINGS SHOULD HAVE BEEN CONSIDERED B Y CIT(A) BUT HE HAS NOT DONE SO. THESE DOCUMENTS ARE AVAILABLE BEFORE US IN THE FORM OF PAPER BOOK AND FROM THE SAME, WE FIND THAT THE ASSESSEE HAS FU RNISHED THE CONFIRMATION ALONG WITH PAN AND COPY OF RETURN OF INCOME RELEVAN T FOR ASSESSMENT YEAR 2009-10 AND HENCE, THE ASSESSEE HAS DISCHARGED ITS ONUS IN RESPECT OF ALL THESE PARTIES. AS PER THE JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF CIT VS. ORISSA CORPORATION (P) LTD. (SUPRA), IT WAS HELD THAT IF THE ASSESSEE HAS PRODUCED WRITTEN CONFIRMATION, THE DISCHARGED H UNDIS AND PARTICULARS OF CREDITORS ALONG WITH GIR NO. OF THE CREDITORS AND T HE DEPARTMENT HAS SIMPLY ISSUED NOTICE TO THE CREDITORS FOR APPEARANCE WHICH HAVE RETURNED UNSERVED WITH THE REMARKS LEFT AND NO FURTHER ATTEMPT WAS MADE TO EXAMINE SOURCE OF CREDITS, FOR THE TRIBUNALS FINDING THAT THE ONUS I S DISCHARGED BY THE ASSESSEE, NO QUESTION OF LAW ARISES. IN THE PRESENT CASE ALS O, THE ASSESSEE HAD PROVIDED CONFIRMATION IN RESPECT OF CREDITORS ALONG WITH PAN AND SIMPLY BECAUSE NOTICES ITA NO. 1575/BANG/2014 PAGE 16 OF 17 ISSUED HAVE COME BACK UNSERVED, IT CANNOT BE SAID T HAT THE ONUS IS NOT DISCHARGED BY THE ASSESSEE. REGARDING OTHER SMALL D IFFERENCES, EXPLANATION IS GIVEN BY THE ASSESSEE AND NO MISTAKE IS POINTED OUT IN THOSE EXPLANATIONS. UNDER THESE FACTS, WE FEEL THAT IT HAS TO BE ACCEPT ED THAT THE ASSESSEE HAS DISCHARGED ITS ONUS AND IT IS ALSO SEEN THAT THE DE PARTMENT HAS DONE NOTHING MORE TO EXAMINE THE SOURCE OF CREDITORS AND THEIR C REDIT WORTHINESS AND THEREFORE, RESPECTFULLY FOLLOWING THIS JUDGMENT, WE HOLD THAT THE ADDITION MADE BY THE AO AND CONFIRMED BY THE CIT(A) IS NOT JUSTIF IED AND HENCE, WE DELETE THE SAME. GROUND NO. 3 IS ALLOWED. 10. REGARDING GROUND NO. 5 I.E. IN RESPECT OF ADDIT ION OF RS. 85,000/-, WE FIND THAT THIS INCLUDES TWO AMOUNTS I.E. RS. 20,000/- FOR M/S . SRK AGENCIES AND RS. 65,000/- FOR M/S. S R ENTERPRISES. IN PARA NO. 2.7 OF THE REMAND REPORT, IT IS NOTED BY AO THAT REGARDING M/S. SRK AGENCIES, IT WA S SUBMITTED BY ASSESSEE BEFORE THE AO IN REMAND PROCEEDINGS THAT THE AMOUNT OF SUPPLIES MADE BY THE PARTY DURING THE YEAR WAS RS. 3,67,832/- BUT THE AM OUNT WAS WRONGLY TYPED AS RS. 3,87,832/- WHILE MAKING THE SUBMISSIONS DURING THE COURSE OF SCRUTINY PROCEEDINGS. SIMILARLY IN PARA NO. 2.8 OF THE REMA ND REPORT IT IS STATED BY THE AO THAT IN RESPECT OF M/S. S R ENTERPRISES, IT WAS SUBMITTED BY THE ASSESSEE THAT THE AMOUNT OF RS. 65,000/- WAS THE ADVANCE PAI D IN THE PRECEDING YEAR FOR SUPPLIES WHICH WAS ADJUSTED DURING THE YEAR. THE A SSESSEE INADVERTENTLY CLAIMED THE ABOVE AMOUNT AS PAYMENT MADE FOR MATERI ALS PURCHASED DURING THE YEAR. REGARDING THESE TWO SUBMISSIONS NO FINDI NG IS GIVEN BY AO IN THE REMAND REPORT AND IT WAS LEFT BY HIM TO CIT(A) TO E XAMINE THE MATERIAL AND DECIDE THE ISSUE. THE LD. CIT(A) IN PARA NO. 4.3 O F ITS ORDER HAS NOTED ALL FACTS AND SUBMISSIONS BUT HE CONFIRMED THE ADDITION OF RS . 85,000/- WITHOUT GIVING ANY FINDING THAT THIS SUBMISSION OF ASSESSEE IS INC ORRECT. THEREFORE IN OUR CONSIDERED OPINION, IN THE ABSENCE OF ANY ADVERSE F INDINGS OF CIT(A) IN PARA NO. 4.3 THAT THESE SUBMISSIONS OF ASSESSEE ARE INCO RRECT, THE ADDITION UPHELD BY THE CIT(A) IS NOT SUSTAINABLE. THEREFORE, WE DE LETE THIS ADDITION ALSO. GROUND NO. 5 IS ALLOWED. ITA NO. 1575/BANG/2014 PAGE 17 OF 17 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED IN THE TERMS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- SD/- (SUNIL KUMAR YADAV) (ARUN KUMAR GAROD IA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 20 TH DECEMBER, 2017. /MS/ COPY TO: 1. APP ELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.