ITO wd 3[4] Malegaon, Malegaon V. Shri Sanjay Mohanlal Chhajed, Nashik

ITA 1746/PUN/2012

• Counselvise Citation: 174624514 RSA 2012
• Duration Of Justice: 2 year(s) 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 15-01-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 28-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained expenditure; Income from undisclosed sources; Opportunity of cross examination
• Section: 69C; 143(3); 142(1); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE BEFORE MS. SUSHMA CHOWLA, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO.938/PN/2013 ASSESSMENT YEAR : 2009-10 INCOME TAX OFFICER WARD-2(4), ADGAONKAR BUILDING DHANORA ROAD, BEED .. APPELLANT V/S SHRI DINESH SATYANARAYAN TAWANI PROP. FANCY TABOCCO CENTRE HIRALAL CHOWK, BEED .... RESPONDENT PERMANENT ACCOUNT NUMBER AAAPP7260A ITA NO.1746/PN/2012 ASSESSMENT YEAR : 2009-10 INCOME TAX OFFICER WARD-3(4), MALEGAON .. APPELLANT V/S SHRI SANJAY MOHANLAL CHHAJED PROP. MOHANLAL & BROTHERS SHOP NO.11, SATANA NAKA MALEGAON, DIST. NASHIK .... RESPONDENT PERMANENT ACCOUNT NUMBER ADBPC8163A ASSESSEE BY : NONE REVENUE BY : RAJESH DAMOR DATE OF HEARING : 15.1.2015 DATE OF PRONOUNCEMENT : 20.2.2015 O R D E R PER SUSHMA CHOWLA, J.M. THESE APPEALS BY THE REVENUE ARE AGAINST THE ORDER OF THE CIT(A) DATED 18 TH FEBRUARY 2013, PASSED IN THE CASE OF SHRI DINESH SATYANARAYAN TAWANI AND ORDER DATED 21 ST JUNE 2012, PASSED IN THE CASE OF SHRI SANJAY MOHANLAL CHHAJED , RELATING TO THE ASSESSMENT YEAR 2009-10, AGAINST THE ORDER PASSED UNDER SECTION 143(3) OF TH E INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ). 2 SHRI DINESH SATYANARAYAN TAWANI SHRI SANJAY MOHANLAL CHHAJED 2. THE GROUNDS OF APPEAL RAISED BY THE REVENUE IN ITA NO.938/PN/ 2013, READ AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW THE LD. CIT(A) ERRED IN DELETING THE ADDITION MADE BY THE A.O. AMOUNTING TO RS.16,51,445/- ON ACCOUNT OF UNACCOUNT ED CASH COLLECTED ON THE SALE OF GAI CHHAP JARDA. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION MADE BY THE A.O. AMOUNTING TO RS.10,80,207/- ON ACCOUNT OF UNACCOUNT ED CASH COLLECTED IN LIEU OF RETURNED GOODS. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. CIT(A) ERRED IN NOT ACCEPTING THE UNACCOUNTED C ASH OF RS.16,51,445/- RECEIVED FROM THE ASSESSEE AND DECLA RED BY DIRECTOR OF SRPL IN A STATEMENT RECORDED UNDER SECT ION 132(4) DURING SEARCH ACTION. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. CIT(A) ERRED IN NOT ACCEPTING THE UNACCOUNTED C ASH COLLECTED IN LIEU OF RETURNED GOODS AT RS.10,80,207/- RECEIVED F ROM THE ASSESSEE AND DECLARED BY THE DIRECTOR OF SRPL IN A STATEMENT RECORDED U/S 132(4) RECORDED DURING SEARCH ACTION. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.27, 31,652/- ON THE BASIS OF STATEMENT OF CROSS EXAMINATION OF RAJESH O . MALPANI DATED 1.1.2013. 3. THE GROUNDS OF APPEAL RAISED BY THE REVENUE IN ITA NO.1746/PN/ 2012, READ AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW THE LD. CIT(A) ERRED IN DELETING THE ADDITION ON AC COUNT OF UNEXPLAINED / UNRECORDED INCOME DUE TO GOODS RETURN ED OF RS.4,82,690/-. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. CIT(A) ERRED IN DELETING THE ADDITION ON ACCOUN T OF UNACCOUNTED CASH PAID TO SRPL OF RS.14,32,845/-. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD. CIT(A) ERRED IN DELETING THE ADDITION ON ACCOUN T OF UNACCOUNTED CASH COLLECTED FROM MARKET OF RS.5,25,819/-. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD. CIT(A) ERRED IN PLACING RELIANCE ON THE ASSESSE ES SUBMISSIONS FOR NON-GRANTING OPPORTUNITY FOR CROSS EXAMINATION WHICH WAS 3 SHRI DINESH SATYANARAYAN TAWANI SHRI SANJAY MOHANLAL CHHAJED NEVER RAISED BEFORE THE A.O. DURING THE COURSE OF S CRUTINY ASSESSMENT. 4. THE ISSUES RAISED IN BOTH THE APPEALS ARE SIMILAR A ND WE PROCEED TO DECIDE THE PRESENT APPEALS BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. HOWEVER, REFERENCE IS BEING MADE TO THE FACTS IN ITA NO.938/PN/2013 TO ADJUDICATE THE ISSUES. 5. DESPITE SERVICE OF NOTICE, NONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY APPLICATION FOR ADJOURNMENT WAS MO VED BY THE ASSESSEE. THE D.R. FOR THE REVENUE, HOWEVER, POINTE D OUT THAT THE ISSUE IN THE PRESENT APPEAL IS SQUARELY COVERED BY THE ORDER OF THE TRIBUNAL IN THE CASE OF ANOTHER DEALER OF GAI CHHAP JARDA. WE PROCEED TO DECIDE THE PRESENT APPEAL AFTER HEARING THE D.R. FOR THE REVENUE. 6. ON A PERUSAL OF THE RECORD, WE FIND THAT THE ISSUE RAISED IN THE PRESENT APPEAL IS IN RELATION TO THE DELETION OF AD DITION OF RS.16,51,445/- MADE ON ACCOUNT OF UNACCOUNTED CASH COLLECTED ON THE SALE OF GAI CHHAP JARDA. ANOTHER ADDITION WHICH WAS MADE BY THE A.O. AMOUNTING TO RS.10,80,207/- ON ACCOUNT OF UNACCOUNT ED CASH COLLECTED IN LIEU OF RETURNED GOODS WAS ALSO DELETE D BY THE CIT(A). 7. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE W AS A DEALER OF GAI CHAP ZARDA, TEA AND OTHER GOODS OF SARGAM RETAI LERS PVT. LTD., MALPANI TEAL CORPORATION AND MALPANI PRODUCTS, SANG AMNER. THE ASSESSEE WAS CARRYING ON TRADING ON WHOLESALE BASIS . THE ASSESSING OFFICER RECEIVED A REFERENCE FROM DDIT (INV.), UNIT -I(2), PUNE, IN THE CASE OF MALPANI GROUP OF CASES OF SANGAMNER AND PUN E. ON THE BASIS OF THE SAID INFORMATION, THE CASE OF THE ASSESSEE W AS SELECTED FOR 4 SHRI DINESH SATYANARAYAN TAWANI SHRI SANJAY MOHANLAL CHHAJED SCRUTINY AND NOTICES UNDER SECTION 143(2) / 142(1) WERE ISSUED. IN THE SEARCH ACTION CARRIED OUT UNDER SECTION 132 OF THE ACT, IN THE MALPANI GROUP OF CASES, CERTAIN DOCUMENTS WERE FOUND AND SE IZED FROM VARIOUS PREMISES OF THE SAID GROUP. THE STATEMENT O F SHRI RAJESH OMKARNATH MALPANI, DIRECTOR OF SARGAM RETAILERS PVT . LTD. WAS RECORDED UNDER SECTION 132(4) OF THE ACT ON 3 RD DECEMBER 2009. IN HIS STATEMENT, HE HAD ACCEPTED THAT M/S. SARGAM RETAILE RS PVT. LTD., HAD COLLECTED CASH FROM THE DEALERS OF GAI CHAP ZARDA O N ACCOUNT OF FAILURE OF FULFILLMENT OF TARGETS SET FOR SALE OF GAI CHAP ZARDA. A LIST OF DEALERS AND AMOUNT OF CASH COLLECTED FROM EACH DEALER WAS M ADE PART AND PARCEL OF THE STATEMENT. AS PER THE LIST FORWARDED BY THE DDIT (INV.), A SUM OF RS.16,51,445/- WAS COLLECTED FROM THE ASSE SSEE FOR THE INSTANT ASSESSMENT YEAR ON ACCOUNT OF NON-FULFILLME NT OF TARGET OF SALES OF GAI CHAP ZARDA. THE ASSESSEE, IN REPLY, ST ATED THAT THE ASSESSEE HAD NOT GIVEN ANY CASH PAYMENT OF RS.16,51 ,445/- OTHER THAN THE PAYMENT RECORDED IN THE BOOKS OF ACCOUNT T OWARDS PURCHASES MADE FROM M/S. SARGAM RETAILERS PVT. LTD. THE A.O. REJECTED THE REPLY OF THE ASSESSEE AND OBSERVED THAT SINCE THE PAYMENT S WERE RECEIVED IN CASH, THE SAME WOULD NOT BE RECORDED IN THE BOOK S OF ACCOUNT. IN VIEW OF THE STATEMENT OF SHRI RAJESH OMKARNATH MALP ANI, RECORDED UNDER SECTION 132(4) OF THE ACT, WHICH AS PER THE A .O. HAD EVIDENTIARY VALUE COULD BE TAKEN AS TRUE. HENCE, THE SAID AMOUN T OF RS.16,51,445/- WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED EXPENDITURE WITHIN THE MEANI NG OF SECTION 69C OF THE ACT. FURTHER, SHRI RAJESH OMKARNATH MALPANI, ALSO ADMITTED THAT M/S. SARGAM RETAILERS PVT. LTD., HAD COLLECTED CASH FROM DEALERS ON 5 SHRI DINESH SATYANARAYAN TAWANI SHRI SANJAY MOHANLAL CHHAJED ACCOUNT OF REJECTED GOODS. IT WAS ADMITTED BY HIM T HAT THE SAME AMOUNT WAS COLLECTED FROM THE DEALERS AGAINST THE S AID REJECTION. THE AMOUNT COLLECTED FROM THE ASSESSEE ON ACCOUNT OF RE JECTED GOODS FOR THE YEAR UNDER APPEAL WAS RS.10,80,207/-. THE ASSES SEE EXPLAINED THAT IT HAD RETURNED 727 BAGS OF GAI CHAP ZARDA AND EXCEPT THE SAID GOODS RETURNED NO OTHER CASH PAYMENT ON ACCOUNT OF REJECTED GOODS WAS MADE BY THE ASSESSEE. THE ASSESSING OFFICER, IN VIEW OF THE STATEMENT OF SHRI RAJESH O. MALPANI, MADE AN ADDITI ON OF RS.10,80,207/- IN THE HANDS OF THE ASSESSEE. 8. BEFORE THE CIT(A), THE CASE OF THE ASSESSEE WAS THA T IT HAD NOT MADE THE SAID PAYMENT. FURTHER, NO AGREEMENT HAS BE EN FOUND BETWEEN THE SAID CONCERN AND THE DEALERS TOWARDS AL LEGED PAYMENT TO BE MADE FOR NON-FULFILLMENT OF TARGETS BY THE DEALE RS. ENTIRE CONTENTION RAISED BY THE ASSESSEE WAS WHERE THE CONCERNED PERS ON HAD ADMITTED THE TRANSACTION FOUND IN THE SEIZED MATERIAL AND HA D OFFERED THE SAME TO TAX AND PAID DUE TAXES, THEN THERE WAS NO QUESTI ON OF ADDITION IN RESPECT OF SAID TRANSACTION IN THE HANDS OF THE THI RD PARTY. THE CIT(A) FORWARDED THE SUBMISSIONS OF THE ASSESSEE TO THE A. O. WHO SUBMITTED THE REMAND REPORT. THE ASSESSEE FILED COUNTER COMME NTS AND STATED THAT THE A.O. HAD FAILED TO GIVE COPIES OF THE STAT EMENT RECORDED OF SHRI RAJESH O. MALPANI, AND THE ALLEGED PAPERS FOUN D DURING THE COURSE OF SEARCH. THE ASSESSEE ALSO ASKED FOR CROSS EXAMINATION OF SHRI RAJESH O. MALPANI. THE A.O., IN THE REMAND PRO CEEDINGS, PROVIDED THE COPY OF THE STATEMENT AND OTHER PAPERS TO THE A SSESSEE AND ALSO ALLOWED CROSS EXAMINATION OF SHRI RAJESH O. MALPANI , WHICH WAS CARRIED OUT ON 1 ST JANUARY 2013. THE RELEVANT PORTION OF THE SAID 6 SHRI DINESH SATYANARAYAN TAWANI SHRI SANJAY MOHANLAL CHHAJED STATEMENT IS REPRODUCED AT PAGE-9 AND 10 OF THE APP ELLATE ORDER. THE ASSESSING OFFICER, IN HIS REPORT DATED 4 TH JANUARY 2013, STATED THAT SHRI RAJESH O. MALPANI, IN REPLY TO QUESTION NO.9, DENIED TO HAVE RECEIVED ANY CASH FROM THE ASSESSEE. HOWEVER, IN RE PLY TO QUESTION NO.10, HE HAD STATED THAT CASH WAS COLLECTED BY THE IR FIELD STAFF FROM BEED AREA. THE A.O. FURTHER STATED THAT SHRI RAJESH O. MALPANI, HAD ACCEPTED THAT THEY HAVE RECORDED THE BUSINESS TRANS ACTION MADE WITH THE ASSESSEE IN THEIR BOOKS OF ACCOUNT AND THE AMOU NTS NOT RECORDED IN THE BOOKS OF ACCOUNT HAVE BEEN OFFERED TO TAX AS INCOME. THE LD. CIT(A), VIDE PARA-14.2, OBSERVED THAT IN VIEW OF THE ABOVE SPECIFIC REPLIES GIVEN BY SHRI RAJESH O. MALPANI, IT CANOT B E SAID THAT THE ALLEGED CASH PAYMENT OF RS.16,51,445/-AND RS.10,80, 207/- HAS BEEN MADE BY THE APPELLANT TO SRPL. IT HAS ALSO BEEN POI NTED OUT BY SHRI RAJESH O. MALPANI IN REPLY TO Q.NO.17 AS UNDER:- QEU. NO.17 DO YOU HAVE ANYTHING TO SAY ANYTHING MOR E. ANS. I AM SUBMITTING THE COPY OF ASSESSMENT ORDER P ASSED IN THE CASE OF ONE OF OUR DEALER MR. OMPRAKASH JAGANNATH L ADDHA, PROP. TULSI SALES CORPORATION, SOLAPUR, WHERE THE A SSESSMENT IS PASSED BY CENTRAL CIRCLE, PUNE WITHOUT MAKING ANY A DDITION ON ACCOUNT OF OUR DISCLOSURE. THE A.O. IN HIS REPORT HAS NOT COMMENTED ON THE REP LY GIVEN BY RAJESH O. MALPANI, TO THE ABOVE Q.NO.17. THE CIT(A) IN VIEW THEREOF DELETED THE ADDITION AG AINST WHICH THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 9. WE FIND THAT SIMILAR ISSUE OF CASH PREMIUM IN RESPE CT OF GAI CHAP ZARDA AROSE BEFORE THE TRIBUNAL IN THE CASE OF ITO V/S M/S. PARAKH AGENCY IN ITA NO.1112/PN/2013, RELATING TO ASSESSME NT YEAR 2009- 7 SHRI DINESH SATYANARAYAN TAWANI SHRI SANJAY MOHANLAL CHHAJED 10. THE TRIBUNAL, VIDE ORDER DATED 9 TH SEPTEMBER 2014, CONSIDERED THE FACTS IN BRIEF VIDE PARA-3 AND 3.1 AS UNDER:- 3. FACTS OF THE CASE, IN BRIEF, ARE THAT A SEARCH A ND SEIZURE ACTION U/S.132 OF THE I.T. ACT WAS CARRIED ON IN TH E CASES OF MALPANI GROUP OF SANGAMNER ON 06-10-2009. DURING T HE COURSE OF SAID SEARCH, A STATEMENT ON OATH OF SHRI RAJESH O. MALPANI WAS RECORDED U/S.132(4) ON 03-12-2009. IN THE STAT EMENT, THE DEPONENT HAS STATED THAT THE MALPANI GROUP HAS COLL ECTED CASH PREMIUM UPTO RS.95/- PER BAG IN RESPECT OF SALE OF GAI CHAP ZARDA FROM SOME OF THE DEALERS IN F.YS. 2008-09 AND 2009-10 WHICH IS UNACCOUNTED INCOME OF SARGAM RETAIL PVT. L TD. FURTHER, IN THE STATEMENT RECORDED U/S.132(4) ON 03-12-2009, SHRI RAJESH O. MALPANI HAS GIVEN THE DETAILS OF CASH COL LECTED FROM THE DEALER ON SALE OF GAICHAP ZARDA AS UNDER : A.Y. 2009 - 10 A.Y. 2010 - 11 TOTAL UNACCOUN- TED CASH COLLECTED (RS.) NAME OF DEALER QTY.(BAGS) UNACCOUNTED CASH COLLECTED (RS) QTY.(BAGS) UNACCOUN - TED CASH COLLECTED (RS.) PARAKH AGENCIES NANDGAON PAN AAFFP6717 8478 777190 11190 1103915/ - 1881105/ - IN VIEW OF THE ABOVE INFORMATION THE AO HAS ASKED T HE ASSESSEE TO EXPLAIN AS TO WHETHER THE ABOVE AMOUNT OF RS.7,7 7,190/- HAS BEEN REFLECTED IN THE BOOKS OF ACCOUNT AND TO EXPLA IN THE NATURE OF THE SAID TRANSACTIONS. IN RESPONSE TO THIS QUERY OF THE AO, THE ASSESSEE FILED DETAILS OF TRANSACTIONS WITH SARGAM RETAILS PVT. LTD. SANGAMNER AND DENIED ANY SUCH PAYMENT OF RS.7, 77,190/- TO SARGAM RETAILS PVT. LTD. SANGAMNER. HOWEVER, THE AO REJECTED THE REPLY OF THE ASSESSEE AND MADE THE ADDITIONS OF RS.7,77,190/- BY RELYING ON THE STATEMENT RECORDED U/S 132(4) OF SHRI RAJESH O. MALPANI, DIRECTOR OF SARGAM RETAI LS PVT. LTD. DURING SEARCH ACTION IN THE CASE OF THE SAID CO. IN SUPPORT OF THIS ADDITION, THE AO RELIED ON THE DECISION OF HON'BLE ITAT, DELHI IN THE CASE OF HERSH WIN CHADHA VS. DDIT. THE AO, RELY ING ON THE ABOVE DECISION OBSERVED THAT UNLIKE CRIMINAL PROCEE DINGS, THE CHARGE IS NOT REQUIRED TO BE PROVED BEYOND DOUBT IN THE CASE OF INCOME TAX PROCEEDINGS. THE TECHNICAL RULES CONTAI NED IN THE INDIAN EVIDENCE ACT ARE NOT APPLICABLE IN THE INCOM E TAX PROCEEDINGS. IN CLANDESTINE TRANSACTIONS, IT IS IM POSSIBLE TO HAVE DIRECT EVIDENCE TO PROVE THE SAID TRANSACTIONS. TH E AO HAS TO ASSESS THE TAX LIABILITY CONSIDERING THE MATERIAL A VAILABLE ON RECORD, SURROUNDING CIRCUMSTANCES, PREPONDERANCE OF PROBABILITIES AND EVIDENCE AVAILABLE ON RECORD. 8 SHRI DINESH SATYANARAYAN TAWANI SHRI SANJAY MOHANLAL CHHAJED 3.1 THE AO FURTHER NOTICED THAT DURING THE IMPUGNED YEAR THE ASSESSEE HAS TRANSACTED 8478 BAGS WHEREAS THE AMOUN T OF RS.7,77,190/- HAS BEEN PAID TO S.R.P.L. TOWARDS PRE MIUM PAID IN CASH WHICH IS UNACCOUNTED. THE AO, THEREFORE, ASKED THE ASSESSEE TO EXPLAIN AS TO WHY IT SHOULD NOT BE TREA TED THAT IN RESPECT OF BALANCE QUANTITY OF 3122 BAGS THE PREMIU M @ 91.67 PER BAG, I.E. RS.2,80,193/- WAS ALSO COLLECTED FROM THE MARKET AS UNACCOUNTED CASH AND RETAINED WITH HIMSELF AS UN ACCOUNTED INCOME. THE ASSESSEE DENIED ANY SUCH COLLECTION AN D REPLIED TO THE ASSESSING OFFICER ACCORDINGLY. THE ASSESSING OF FICER, HOWEVER, REJECTED THE REPLY OF THE ASSESSEE AND MAD E ADDITION OF RS.2,86,193/- ON ACCOUNT OF UNACCOUNTED INCOME. 10. THE TRIBUNAL, THEREAFTER, DELETED THE ADDITION UPHO LDING THE ORDER OF THE CIT(A) OBSERVING AS UNDER:- 7. WE HAVE CONSIDERED THE ARGUMENTS ADVANCED BY TH E LD. DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIA L ON RECORD. WE FIND THE ASSESSING OFFICER, BASED ON TH E STATEMENT RECORDED U/S.132(4) OF SHRI RAJESH O. MALPANI, DIRE CTOR OF SARGAM RETAILS PVT. LTD. MADE ADDITION OF RS.7,77,1 90/- ON THE GROUND THAT SARGAM RETAILS PVT. LTD. HAS COLLECTED PREMIUM ON SALE OF GAICHAP ZARDA FROM THE DEALERS IN CASH BY C HARGING LESS PRICE OF THE PRODUCT TO THE DEALERS. WE FIND THE L D.CIT(A) DELETED THE ADDITION MADE BY THE ASSESSING OFFICER ON THE GROUND THAT THE ASSESSING OFFICER HAS NOT ALLOWED C ROSS EXAMINATION OF SHRI RAJESH O. MALPANI, DIRECTOR OF SARGAM RETAILS PVT. LTD. BY THE ASSESSEE ALTHOUGH IT WAS S PECIFICALLY RAISED BEFORE THE ASSESSING OFFICER. HE FURTHER HE LD THAT ADDITION CANNOT BE MADE ON THE BASIS OF A STATEMENT RECORDED ON OATH UNLESS OPPORTUNITY OF CROSS EXAMINATION IS GIVEN TO THE ASSESSEE. THE LD. CIT(A) HAS FURTHER OBSERVED THAT EVEN IF IT IS ACCEPTED THAT ASSESSEE HAS PAID THE EXCESS AMOUNT TO SARGAM RETAILS PVT. LTD., SAME ARE COLLECTED ON BEHALF OF SARGAM RETAIL S PVT. LTD. FROM VARIOUS RETAILERS AND THE RESULTANT INCOME OF THE ASSESSEE ON THESE TRANSACTIONS WILL BE NIL. THIS REASONED F INDING BY THE LD.CIT(A) IN OUR OPINION DOES NOT SUFFER FROM ANY I NFIRMITY IN ABSENCE OF ANY CONTRARY MATERIAL BROUGHT TO OUR NOT ICE BY THE LD. DEPARTMENTAL REPRESENTATIVE. THEREFORE, THE AD DITION OF RS.7,77,190/- DELETED BY THE LD. CIT(A) IN OUR OPIN ION IS JUSTIFIED AND THE GROUND OF APPEAL NO.1 BY THE REVENUE IS DIS MISSED. 7.1 SO FAR AS THE ADDITION OF RS.2,86,193/- IS CONC ERNED, WE FIND THE ASSESSING OFFICER MADE THE ADDITION ON THE BASIS OF DIFFERENCE BETWEEN THE TOTAL BAGS TRANSACTED AND TH E BAGS IN RESPECT OF WHICH THE ADDITION HAS BEEN MADE AT 8478 BAGS. THE LD.CIT(A) HAS GIVEN A FINDING THAT THIS ADDITION OF THE ASSESSING OFFICER IS NOT SUPPORTED BY ANY EVIDENCE. THE LD. DEPARTMENTAL REPRESENTATIVE ALSO COULD NOT BRING ANY MATERIAL TO CONTROVERT THE FINDING GIVEN BY THE LD.CIT(A) WHICH ACCORDING TO THE LD.CIT(A) IS BASED ON ASSUMPTION, PRESUMPTION AND S USPICION. IN VIEW OF THE ABOVE, THE ORDER OF THE CIT(A) DELET ING THE ADDITION OF RS.2,86,193/- IN OUR OPINION, ALSO DOES NOT SUFFER 9 SHRI DINESH SATYANARAYAN TAWANI SHRI SANJAY MOHANLAL CHHAJED FROM ANY INFIRMITY. ACCORDINGLY, THE SAME IS UPHEL D. GROUND OF APPEAL NO.2 BY THE REVENUE IS ACCORDINGLY DISMISSED . 7.2 SO FAR AS THE GROUNDS OF APPEAL NO.3 IS CONCERN ED, WE FIND FROM THE REMAND REPORT OF THE ASSESSING OFFICER DAT ED 05-03- 2013 THAT HE HAS ACCEPTED THAT NO CROSS EXAMINATION OF SHRI RAJESH O. MALPANI WAS ALLOWED TO THE ASSESSEE DURIN G ASSESSMENT PROCEEDINGS. THEREFORE, GROUND OF APPEA L NO.3 BY THE REVENUE IS DISMISSED. 11. THE FACTS AND ISSUE ARISING IN THE PRESENT APPEAL A RE IDENTICAL TO THE FACTS AND ISSUE BEFORE THE TRIBUNAL IN THE CASE OF M/S. PARAKH AGENCY (SUPRA) AND FOLLOWING THE SAME PARITY OF REA SONING, WE UPHOLD THE ORDER OF THE LD. CIT(A) IN DELETING THE ADDITIO N OF RS.16,51,445/- AND RS.10,80,207/-. THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE THUS DISMISSED. 12. THE ISSUES IN ITA NO.1746/PN/2012, ARE IDENTICAL TO THE FACTS AND ISSUE RAISED IN ITA NO.938/PN/2013, AND OUR DECISIO N IN ITA NO.932/PN/2013, WOULD APPLY MUTATIS MUTANDIS TO ITA NO.1746/PN/ 2013. 13. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED ON 20 TH DAY OF FEBRUARY 2015. SD/ - (R.K. PANDA) ACCOUNTANT MEMBER SD/ - (SUSHMA CHOWLA) JUDICIAL MEMBER PUNE, DATED: 20 TH FEBRUARY, 2015 PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY 10 SHRI DINESH SATYANARAYAN TAWANI SHRI SANJAY MOHANLAL CHHAJED COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, PUNE CITY CONCERNED; (5) THE DR, ITAT, PUNE; (6) GUARD FILE. TRUE COPY BY ORDER (ASSTT. REGISTRAR) ITAT, PUNE