Mehraj Malik, Ghaziabad V. ITO, Ghaziabad

ITA 1789/DEL/2015

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4737 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 30-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RINKU SINGH SENIOR
• Assessee Lawyers: AKHILESH KUMAR SHRI VIPIN GARG
• Keywords: Unexplained cash credit; Additional evidence; Set aside
• Section: 131; 68; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E : NEW DELHI) BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.1789/DEL./2015 (ASSESSMENT YEAR : 2009-10) SHRI MEHRAJ MALIK, VS. ITO, WARD 1 (4), C/O SHRI AKHILESH KUMAR, ADVOCATE GHAZIABAD. CHAMBER NO.206-207, ANSAL SATYAM, RDC RAJ NAGAR, GHAZIABAD. (PAN : AJAPM0354Q) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI AKHILESH KUMAR, ADVOCATE SHRI VIPIN GARG, ADVOCATE REVENUE BY : MS. RINKU SINGH, SENIOR DR DATE OF HEARING : 05.03.2019 DATE OF ORDER : 15.05.2019 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : THE APPELLANT, SHRI MEHRAJ MALIK (HEREINAFTER REFE RRED TO AS THE ASSESSEE) BY FILING THE PRESENT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 12.12.2014 PASSED BY THE COMMI SSIONER OF INCOME-TAX (APPEALS), GHAZIABAD QUA THE ASSESSMENT YEAR 2009-10 ON THE GROUNDS INTER ALIA THAT :- 1. BECAUSE THE ORDER OF LD. LOWER AUTHORITY IS BAD IN LAW AS WELL AS IS AGAINST THE FACTS AND CIRCUMSTANCES OF T HE CASE. ITA NO.1789/DEL./2015 2 2. BECAUSE LEARNED COMMISSIONER OF INCOME TAX ERRED IN SUSTAINING THE ADDITION OF RS.20,17,338/-, BEING CA SH DEPOSITED IN BANK, IN WHOLE DISREGARD TO THE MATERIAL ON THE -RE CORD WHICH IS NOT REJECTED WITH SOME MATERIAL BUT MERELY RELYING ON THE WRONG/IRRELEVANT OBSERVATIONS MADE BY LD. AO IN REM AND PROCEEDINGS LIKE ALLEGED SOA OF EARLIER YEAR IS ALS O MADE BASIS FOR ADDITION IN CURRENT YEAR. 3. BECAUSE LEARNED COMMISSIONER OF INCOME TAX FURTH ER ERRED IN SUSTAINING THE SAID ADDITION OF RS.20,17,3 38/- U/S 69 OF THE ACT BY INVOKING HIS PLENARY POWERS WITHOUT APPR ECIATING THE FACT THAT ONUS LAY FOR MAKING SUCH ADDITION IS NOT DISCHARGED. 4. BECAUSE LEARNED COMMISSIONER OF INCOME TAX ERRED IN SUSTAINING THE ADDITION OF RS.43,76,781/- , BEING B USINESS CREDITORS, WITHOUT APPRECIATING THE HUGE EVIDENCES ON THE RECORD PROVING THE CREDITS, THEIR REPAYMENT AND ACCEPTANCE IN SUBSEQUENT YEARS ETC. ETC. MERELY RELYING ON THE WR ONG/IRRELEVANT OBSERVATIONS MADE BY LD. AO IN REMAND PROCEEDINGS. 5. BECAUSE LEARNED COMMISSIONER OF INCOME TAX FURTH ER ERRED IN SUSTAINING THE SAID ADDITION OF RS.43,76,4 81/- WITHOUT APPRECIATING THE FACT THAT NEITHER ANY OF EVIDENCES OF ASSESSEE ARE FOUND WRONG NOR THERE IS ANY MATERIAL AGAINST THE A SSESSEE AND ADDITION OF BUSINESS CREDITOR U/S 68 OF THE ACT ITS ELF IS WRONG IN THE CIRCUMSTANCES OF THE CASE. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : ASSESSEE BEING AN INDIVID UAL TAXPAYER FILED RETURN OF INCOME AT THE INCOME OF RS.3,56,480 /-, WHO IS ENGAGED IN THE TRADING OF IRON AND STEEL IN THE NAM E AND STYLE OF M/S. ALLIEN ENTERPRISES. BALANCE SHEET OF THE ASSE SSEE TALLIES AT RS.88,28,373.67 AS ON 31.03.2009 SHOWING CAPITAL AM OUNT OF ASSESSEE TALLIES AT RS.15,61,682.14. ON THE TURNOV ER OF RS.1,56,63,302/-, ASSESSEE HAS DISCLOSED GROSS PROF IT AND NET PROFIT ITA NO.1789/DEL./2015 3 OF RS.9,51,196/- & RS.3,56,480/- @ 6.07% & 2.28% RE SPECTIVELY.. BOOKS OF ACCOUNT HAVE NOT BEEN PRODUCED BY THE ASSE SSEE. 3. AO NOTICED THAT THE ASSESSEE HAS DEPOSITED CASH OF RS.20,17,338/- IN HIS SAVING BANK ACCOUNT FOR FY 20 08-09 ON DIFFERENT DATES. ON FAILURE OF THE ASSESSEE TO PUT FORTH THE EXPLANATION, THE NATURE AND SOURCE OF TRANSACTION N OR THE SAID SAVING BANK HAS BEEN SHOWN BY THE ASSESSEE IN THE B ALANCE SHEET NOR IN THE RETURN OF INCOME FILED FOR AY 2009-10, A O TREATED THE SAME AS UNEXPLAINED CASH CREDIT AND MADE ADDITION T HEREOF TO THE TOTAL INCOME OF THE ASSESSEE. 4. AO ALSO NOTICED THAT THE ASSESSEE HAS SHOWN CRED ITORS OF RS.45,69,338/- AS ON 31.03.2009 AND DETAILS THEREOF IS AS UNDER :- 1. M/S. B.K. TRADING COMPANY RS.1,92,557/- 2. M/S. ADR STEEL CORPORATION RS.14,80,363/- 3. M/S. CHAUDHARY IRON TRADERS RS.22,50,000/- 4. M/S. MALIK TRADERS RS.56,418/- 5. M/S. YOU LIKE MACHINERY RS.5,90,000/- TOTAL RS.45,69,338/- 5. ON FAILURE OF THE ASSESSEE TO PROVE THE IDENTITY OF THE CREDITORS, GENUINENESS OF THE TRANSACTION AND THEIR CREDITWORTHINESS UNDER SECTION 68 OF THE INCOME-TAX ACT, 1961 (FOR S HORT THE ACT), THE AO MADE ADDITION OF RS.43,76,781/- (RS.22,50,00 0/- IN THE NAME OF M/S. CHAUDHARY IRON TRADERS & RS.21,26,781/ - QUA THE ITA NO.1789/DEL./2015 4 REMAINING UNCONFIRMED CREDITORS) AND MADE ADDITION THEREOF TO THE TOTAL INCOME OF THE ASSESSEE. 6. ASSESSEE CARRIED THE MATTER BY WAY OF AN APPEAL BEFORE THE LD. CIT (A) WHO HAS CONFIRMED THE ADDITION BY DISMI SSING THE APPEAL. FEELING AGGRIEVED, THE ASSESSEE HAS COME U P BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. 7. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 8. UNDISPUTEDLY, THE ASSESSEE HAS NOT PRODUCED THE BOOKS OF ACCOUNT DURING THE ASSESSMENT PROCEEDINGS. IT IS A LSO NOT IN DISPUTE THAT THE ASSESSEE HAS SHOWN GP RATE OF 6.07% AND NP RATE OF 2.28% ON THE GROSS TURNOVER OF RS.1,56,63,302/-. IT IS A LSO NOT IN DISPUTE THAT THE ASSESSEE HAS NOT DISCLOSED HIS SAVING BANK ACCOUNT MAINTAINED WITH ICICI BANK WHEREIN HE HAS DEPOSITED AN AMOUNT OF RS.20,17,338/-. IT IS ALSO NOT IN DISPUTE THAT DURING THE APPELLATE PROCEEDINGS, THE LD. CIT (A) HAS CALLED THE REMAND REPORT FROM THE AO. IT IS ALSO NOT IN DISPUTE THAT AFTER ACCEPTING THE REMAND REPORT, THE LD. CIT (A) HAS ACCEPTED THE CONTENTION OF THE ASSESSEE THAT ADDITION IS NOT SUSTAINABLE U/S 68 OF THE ACT BUT C ONFIRMED THE ADDITION U/S 69 OF THE ACT. ITA NO.1789/DEL./2015 5 9. IN THE BACKDROP OF THE AFORESAID FACTS AND CIRCU MSTANCES OF THE CASE, WE WOULD DECIDE THE PRESENT APPEAL GROUND -WISE. GROUND NO.1 10. GROUND NO.1 IS GENERAL IN NATURE, HENCE DOES NO T REQUIRE ANY ADJUDICATION. GROUNDS NO.2 & 3 11. WHEN WE EXAMINE THE CASH DEPOSIT OF RS.20,17,33 8/- IN THE SAVING BANK ACCOUNT OF THE ASSESSEE MAINTAINED WITH ICICI BANK WHICH ACCOUNT HAS NOT BEEN DISCLOSED BY THE ASSESSE E IN HIS ITR, IN THE LIGHT OF THE BANK STATEMENT ISSUED BY PNB HOUSI NG FINANCE LTD., IT IS PROVED THAT THE ASSESSEE HAS WITHDRAWN RS.10,00,000/- FROM THIS ACCOUNT ON 11.02.2008. ASSESSEE HAS DULY EXPLAINED BEFORE LD. CIT (A), AS IS EVIDENT FORM PAGE 7 OF TH E IMPUGNED ORDER, AS TO THE CASH DEPOSITS AND DOCUMENTARY EVID ENCE IN SUPPORT THEREOF WHICH IS EXTRACTED AS UNDER :- NOW, IN SUPPORT OF CASH DEPOSITS FOLLOWING DOCUMEN TS ARE ENCLOSED: 1. COPY OF STATEMENT OF AFFAIR AS ON 31.03.08 AND OF 31.03.09 2. COPY OF SB A/C WITH ICICI UNDER QUESTION/MAHARN EDHA BANK AND LOAN A/C WITH PNB OF ASSESSEE 3. COPY OF CAPITAL ACCOUNT IN THE BOOKS OF M/S ALL IEN ENT. AS FILED BEFORE AO ITA NO.1789/DEL./2015 6 4. COPY OF DAY TO DAY RUNNING ACCOUNT (DRAWING A/C ) IN THE BOOKS OF M/S ALLIEN ENT. SHOWING DEPOSITS/WITHDRAWA LS ON DAY TO DAY BASIS OPG. CASH 6,97,388/- CASH WITHDRAWN FROM ICICI 14,90,950/- CROSS ENTRY IN BANK 30,000/- OUT OF FIRM'S DRAWING 20,35,000/- TOTAL : 42,53,338/- HENCE, ABOVE CASH OF RS.20,17,338/- IS DEPOSITED OU T OF CASH AVAILABLE WITH THE ASSESSEE, SOURCES OF WHICH IS SU MMARIZED AS ABOVE AND EACH/EVERY ENTRY IS VERIFIABLE. SIMILARLY, CONSUMPTION OF CASH AS PER CASH FLOW CAN ALSO BE SUMMARIZED AS UNDER, THOUGH EACH AMOUNT IS SEPARATE LY EXPLAINED: DEPOSIT WITH ICICI AS ABOVE 20,17,338/- DEPOSIT IN THE DRAWING A/C WITH FIRM 19,35,000/- CROSS ENTRY IN BANK 30,000/- WITHDRAWAL FOR EXP. 1,45,000/- DEPOSIT WITH OTHER BANKS ETC. 1,10,000/- CLOSING CASH IN HAND 15,000/- TOTAL : 42,53,338/- FROM THE ABOVE, IT IS CRYSTAL CLEAR THAT THERE IS N OTHING EXPLAINED ABOUT THE CASH DEPOSITED IN THE SAVING A/C WHICH IS ADDED. BESIDES, IT IS ALSO TO BE EXPLAINED THAT THOUGH CAS H IN HAND IN THE OPG. IS NOT USED IN DEPOSITING WITH ICICI SB A/C BUT THE REASON FOR THIS CASH IN HAND ON 31.03.08 IS MAINLY PERSONAL LOAN OF OVER RS.38 LAKHS FROM PNB, DEPOSITED WITH MAHAMEDHA BANK OUT OF WHIC H OVER RS.10 LAKHS ARE WITHDRAWN IN FEB.08, UNUSED PORTION OF WHICH IS REFLECTED IN THE OPG. STATEMENT OF AFFAIR/LOAN A /C /SAID SAVING A/C MAY BE VERIFIED IN SUPPORT OF CONTENTION. 12. WHEN WE EXAMINE THE EXPLANATION GIVEN BY THE AS SESSEE BEFORE THE LD. CIT (A), EXTRACTED ABOVE, IN THE LIG HT OF THE DAY-TO- DAY CASH FLOW STATEMENT GIVEN BY THE ASSESSEE, AVAI LABLE AT PAGES 84 TO 87 OF THE PAPER BOOK, IT IS PROVED THAT THE A SSESSEE HAS DULY EXPLAINED THE CASH DEPOSIT IN THE BANK. ITA NO.1789/DEL./2015 7 13. PERUSAL OF PARA 7.1 OF THE IMPUGNED ORDER PASSE D BY THE LD. CIT (A) ALSO SHOWS THAT THE ASSESSEE HAS DULY EXPLA INED THAT THE CASH WAS DEPOSITED OUT OF THE FIRMS DRAWING AND HA S SUBMITTED BEFORE THE LD. CIT (A) (I) COPY OF STATEMENT OF AFF AIRS AS ON 31.03.2008 AND OF 31.03.2009; (II) COPY OF SB A/C W ITH ICICI UNDER QUESTION/MAHAMEDHA BANK AND LOAN A/C WITH PNB OF ASSESSEE; (III) COPY OF CAPITAL ACCOUNT IN THE BOOK S OF M/S. ALLIEN ENT. AS FILED BEFORE AO; AND (IV) COPY OF DAY TO DA Y RUNNING ACCOUNT (DRAWING A/C) IN THE BOOKS OF M/S. ALLIEN E NT. SHOWING DEPOSITS/ WITHDRAWALS ON DAY TO DAY BASIS. 14. IT IS ALSO THE CASE OF THE ASSESSEE THAT HE HAS AVAILED OF A LOAN OF RS.38,00,000/- FROM PNB BANK WHICH IS DEPOSITED WITH ICICI BANK OUT OF WHICH RS.10,00,000/- WAS WITHDRAWN AND UNUSED AMOUNT IS REFLECTED IN OPENING STATEMENT OF AFFAIRS . 15. AO FILED THE REMAND REPORT WHO HAS REJECTED STA TEMENT OF AFFAIRS (SOA) READ WITH UNDERLINED STATEMENT ONLY O N THE GROUND THAT THE COPIES OF ACCOUNTS / SOA FILED BEFORE THE DEPARTMENT DOES NOT MATCH WITH THE DETAILS FURNISHED BEFORE PNB FOR LOAN TAKEN IN EARLIER YEAR I.E. AY 2008-09. HOWEVER, THE LD. CIT (A) HAS RELIED UPON THE REMAND REPORT WITHOUT RETURNING ANY INDEPE NDENT FINDINGS DESPITE THE FACT THAT THE ASSESSEE HAS DULY EXPLAIN ED ALL THE SOA WHICH GETS TALLIED WITH DAY-TO-DAY CASH FLOW AND DR AWING ACCOUNTS ITA NO.1789/DEL./2015 8 OF M/S. ALLIEN ENTERPRISES, AVAILABLE AT PAGES 84 T O 87 AND 75 TO 83 OF THE PAPER BOOK. 16. LD. DR FOR THE REVENUE CONTENDED THAT SINCE THE ASSESSEE HAS FAILED TO PRODUCE THE BOOKS OF ACCOUNT BEFORE T HE AO EVEN DURING THE REMAND REPORT, IT IS DIFFICULT TO ACCEPT THE OPENING BALANCE AND CONSEQUENTLY, EXPLANATION FOR CASH DEPO SIT ALSO CANNOT BE ACCEPTED. 17. WE ARE OF THE CONSIDERED VIEW THAT WHEN NO SPEC IFIC ENTRY IN THE SOA/CASH FLOW STATEMENT HAS BEEN DISPUTED BY TH E AO BUT BASED HIS FINDING ON THE FACT THAT THERE IS A DIFFE RENCE IN ACCOUNTS BEFORE PNB ACCOUNT FILED BEFORE DEPARTMENT BUT HAS FAILED TO APPRECIATE THAT BEFORE PNB THE STATEMENT OF EARLIER YEAR WAS FILED AS LOAN WAS DISBURSED IN JANUARY 2008. SO, IN THES E CIRCUMSTANCES, EARLIER YEARS DETAILS WITH SUBSEQUENT YEARS CANNOT BE TALLIED IN ANY CIRCUMSTANCE. CONSEQUENTLY, GROUNDS NO.2 & 3 ARE D ETERMINED IN FAVOUR OF THE ASSESSEE. GROUNDS NO.4 & 5 18. UNDISPUTEDLY, ASSESSEE HAS NOT FURNISHED CONFIR MATION OF THE SUNDRY CREDITORS DURING ASSESSMENT PROCEEDINGS, BUT HE HAS DULY SUPPLIED THEIR ADDRESS. AO ISSUED NOTICE U/S 133 ( 6) TO FIVE CREDITORS AND INCOME-TAX INSPECTOR WAS ALSO DEPUTED TO MAKE AN ENQUIRY AND CONFIRMATION OF ONLY TWO CREDITORS WERE RECEIVED. OUT ITA NO.1789/DEL./2015 9 OF WHICH, AO ACCEPTED CONFIRMATION OF B.K. TRADING COMPANY FOR RS.1,92,557/- BUT REJECTED THE CONFIRMATION OF CHAU DHARY IRON TRADERS FOR RS.22,50,000/- AS CHAUDHARY IRON TRADER S HAS SHOWN SUNDRY DEBTORS AT RS.NIL IN ITS RETURN OF INCOME. 19. ASSESSEE HAS DULY FILED CONFIRMATION OF M/S. AD R STEEL CORPORATION AND M/S. YOU LIKE MACHINERY BUT CONFIRM ATION FROM M/S. MALIK TRADERS WAS NOT PRODUCED. EVEN, DURING REMAND PROCEEDINGS, CREDITORS HAVE NOT APPEARED IN PERSON DESPITE ISSUANCE OF SUMMONS U/S 131 OF THE ACT. 20. LD. CIT (A) HAS ALSO REJECTED THE APPLICATION F ILED BY THE ASSESSEE UNDER RULE 46A MERELY ON THE OBJECTIONS RA ISED BY THE AO IN THE REMAND REPORT. THE LD. AR FOR THE ASSESS EE CONTENDED THAT HE HAS DULY EXPLAINED THE TRADE CREDITORS OF R S.43,76,781/- AND NO ADDITION U/S 68 OF THE ACT IS SUSTAINABLE. PERU SAL OF THE IMPUGNED ORDER PASSED BY THE LD. CIT (A) GOES TO SH OW THAT LD. CIT (A) HAS CONFIRMED THE ORDER PASSED BY THE AO WI THOUT APPLYING HIS INDEPENDENT MIND AND HAS NOT EVEN ENTE RTAINED THE ADDITIONAL EVIDENCE SOUGHT TO BE LED BY ASSESSEE BE FORE AO DURING REMAND PROCEEDINGS. ASSESSEE HAS EXPLAINED THE TRA DE CREDITORS AS UNDER :- ITA NO.1789/DEL./2015 10 NAME AMOUNT EVIDENCES FILED ADR STEEL CORPORATION 14,80,363/- PURCHASE BILLS: PB 144-154, CONFIRMATION: PB 93-94 PAYMENT EVIDENCE (BANK A/C): PB 95-96 DIRECT CONFIRMATION: PB 265-266 CHAUDHARY IRON TRADERS 22,50,000/- PURCHASE BILLS: PB 142-143 CONFIRMATION: PB 106-108 PAYMENT EVIDENCE (BANK A/C ): PB 101-105 DIRECT CONFIRMATION: PB 97 -100 YOU LIKE MACHINERY 5,90,000/- PURCHASE BILLS: PB 155-156 CONFIRMATION: PB 109-111 PAYMENT EVIDENCE (BANK A/C): PB 112-113 DIRECT CONFIRMATION: PB 262-263 NOTE: NO PURCHASES IN CURRENT YEAR, ONLY OPENING BALANCE PAID IN SUBSEQUENT YEARS AND THEREFORE, SEC. 68 DOES NOT APPLY. MILK TRADERS 56,418/- PURCHASES FROM PARTY AND CORRESPONDING SALES STANDS ACCEPTED. 21. WHEN THE ASSESSEE HAS DULY BROUGHT ON RECORD TH E FACT THAT THE PURCHASES ARE SUPPORTED WITH INVOICES GIVING CO MPLETE ADDRESS/TIN/TRUCK NUMBER ETC. ALONG WITH CONFIRMATI ON OF THE TRADE CREDITORS INCLUDING CONFIRMATION OF SUBSEQUEN T YEARS WITH ADDRESS/PAN, BANK STATEMENT SHOWING THAT THE ENTIRE PAYMENT HAS BEEN MADE THROUGH BANKING CHANNEL, THE SAME CANNOT BE THROWN INTO THE DUSTBIN WITHOUT PASSING REASONED ORDER. T HE ASSESSEE HAS ALSO PROVED ON RECORD THAT THE SAME CREDITORS HAVE BEEN ACCEPTED ITA NO.1789/DEL./2015 11 BY THE REVENUE IN THE SUBSEQUENT YEARS I.E. 2011-12 AS IS EVIDENT FROM ASSESSMENT ORDER DATED 11.02.2014, AVAILABLE A T PAGES 259 & 260 OF THE PAPER BOOK. MOREOVER, WHEN PURCHASES AN D CORRESPONDING SALES HAVE BEEN ACCEPTED, ADDITION MA DE BY THE AO WOULD LEAD TO UNSUSTAINABLE RESULTS. 22. SO FAR AS TRADE CREDITS PERTAINING TO CHAUDHARY IRON TRADERS IS CONCERNED, IT IS SPECIFICALLY EXPLAINED BY CHAUD HARY IRON TRADERS THAT THE FIGURES OF DEBTORS ARE DEDUCTED FR OM CREDITORS AND ACCORDINGLY, DEBTORS NOT REFLECTED SEPARATELY IN TH E ITR WHICH HAS OTHERWISE BEEN CONFIRMED BY THE AO WITH THE BANK AC COUNT. MOREOVER, LEDGER ACCOUNT OF CHAUDHARY IRON TRADERS, AVAILABLE AT PAGE 103 OF THE PAPER BOOK, SHOWS THAT ALL THE PURC HASES HAVE BEEN MADE THROUGH BANKING CHANNEL. MOREOVER, WHEN PURCH ASES AND SALES HAVE NOT BEEN DOUBTED BY THE AO/CIT(A) WHICH ARE THROUGH BANKING CHANNEL THEN HOW THE TRADE CREDITORS CAN BE DOUBTED WHO HAVE OTHERWISE BEEN ACCEPTED DURING SUBSEQUENT YEAR S. 23. WHEN BOOKS OF ACCOUNT HAVE BEEN PRODUCED BY THE ASSESSEE DURING THE PENALTY PROCEEDINGS, THE ADVERSE VIEW CA NNOT BE TAKEN BY THE AO FOR NOT PRODUCING THE BOOKS OF ACCOUNT. MERELY BECAUSE OF THE FACT THAT CREDITORS HAVE FAILED TO ATTEND TH E REMAND PROCEEDINGS IN PERSON, THE ADDITION IS OTHERWISE NO T SUSTAINABLE. SO, WE ARE OF THE CONSIDERED VIEW THAT ADDITION MAD E BY THE AO ITA NO.1789/DEL./2015 12 AND CONFIRMED BY THE LD. CIT (A) ON ACCOUNT OF TRAD E CREDITORS IS NOT SUSTAINABLE. SO, AO IS DIRECTED TO DELETE THE SAME AFTER DULY VERIFYING THE DOCUMENTS ALREADY BROUGHT ON RECORD B Y THE ASSESSEE, HENCE GROUNDS NO.4 & 5 ARE DETERMINED IN FAVOUR OF THE ASSESSEE. 24. RESULTANTLY, THE APPEAL FILED BY THE ASSESSEE I S ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 16 TH DAY OF MAY, 2019. SD/- SD/- (R.K. PANDA) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 15 TH DAY OF MAY, 2019 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), GHAZIABAD. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.