Mahesh Abdeshkumar Rathi, Ahmednagar V. Income-tax Officer,

ITA 1864/PUN/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2966 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 31-12-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 15-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HITENDRA NINAVE
• Keywords: Unexplained expenditure; Income from undisclosed sources; Search and seizure
• Section: 69C; 142(1); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E , , !'#'' $ , % & BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM / ITA NO. 1864/PN/2013 %' ( ')( / ASSESSMENT YEAR : 2010-11 MAHESH ABDESHKUMAR RATHI, M/S. SHANTILAL GANDHI, TAX CONSULTANT, 146 AMBER PLAZA, 1 ST FLOOR, STATION ROAD, AHMEDNAGAR 414001 PAN : AGWPR6480P ....... / APPELLANT ' / V/S. INCOME TAX OFFICER, WARD 4, AHMEDNAGAR / RESPONDENT ASSESSEE BY : SHRI NIKHIL PATHAK REVENUE BY : SHRI HITENDRA NINAVE / DATE OF HEARING : 31-12-2015 / DATE OF PRONOUNCEMENT : 01-01-2016 * / ORDER PER VIKAS AWASTHY, JM : THE APPEAL HAS BEEN FILED BY THE ASSESSEE IMPUGNING THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-IT/TP, PUNE DATED 06 -09-2013 FOR THE ASSESSMENT YEAR 2010-11. 2 ITA NO. 1864/PN/2013, A.Y. 2010-11 2. THE FACTS OF THE CASE AS EMANATING FROM THE RECORD ARE: THE ASSESSEE IS AN INDIVIDUAL AND IS ENGAGED IN THE WHOLESALE TR ADE OF JARDA (TOBACCO), BIDI AND TEA POWDER. THE ASSESSEE FILED HIS RETURN OF IN COME FOR THE ASSESSMENT YEAR 2010-11 ON 17-09-2010 DECLARIN G INCOME OF RS.5,60,684/- AND AGRICULTURAL INCOME OF RS.2,56,148/-. THE C ASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY, ACCORDINGLY NOTIC E U/S. 143(2) WAS ISSUED TO THE ASSESSEE ON 04-07-2011. THE ASSESS ING OFFICER RECEIVED INFORMATION FROM THE DDIT (INV), UNIT-1(2), PUNE THAT DURING THE COURSE OF SEARCH AND SEIZURE ACTION IN THE CASE OF MALPANI GROUP, SANGAMNER ON 06-10-2009, A STATEMENT OF SHRI RAJESH O MKARNATH MALPANI WAS RECORDED U/S. 132(4) OF THE INCOME TAX ACT, 19 61. IN THE STATEMENT SHRI MALPANI ADMITTED THAT THEY HAVE RECEIVED UNACCOUNTED CASH FROM SAME DEALERS IN FINANCIAL YEAR 2009-10. ON THE BASIS OF THE STATEMENT RECORDED ADDITION WAS MADE IN THE INCOME RET URNED BY THE ASSESSEE FOR UNACCOUNTED SALE OF GAI CHHAP JARDA RS.16,6 2,200/- AND UNACCOUNTED CASH PAID ON GOODS RETURNED RS.8,88,961/-. THE AFORESAID TRANSACTIONS WERE ALLEGEDLY ROUTED THROUGH M/S . SARGAM RETAILERS PVT. LTD. AGGRIEVED BY THE ASSESSMENT ORDER DATED 08-02-2013, T HE ASSESSEE PREFERRED AN APPEAL BEFORE THE COMMISSIONER OF I NCOME TAX (APPEALS). THE COMMISSIONER OF INCOME TAX (APPEALS) CONFIRMED THE ADDITION AND DISMISSED THE APPEAL OF THE ASSESSEE. NOW, THE ASSESSEE IS IN SECOND APPEAL BEFORE THE TRIBUNAL. 3. SHRI NIKHIL PATHAK APPEARING ON BEHALF OF THE ASSESSEE S UBMITTED THAT THE ADDITIONS CONFIRMED BY THE COMMISSIONER OF INCOME TAX (APPEALS) IN THE IMPUGNED ASSESSMENT YEAR ARE IDENTICAL T O THE 3 ITA NO. 1864/PN/2013, A.Y. 2010-11 ADDITIONS MADE IN ASSESSMENT YEAR 2009-10. THE ASSESSE E HAD APPROACHED THE TRIBUNAL IN ITA NO. 208/PN/2014. THE TR IBUNAL DECIDED THE ISSUES IN FAVOUR OF THE ASSESSEE VIDE ORDER DATED 27-10- 2015. THE LD. AR PLACED ON RECORD A COPY OF ORDER IN I TA NO. 208/PN/2014. 4. SHRI HITENDRA NINAVE REPRESENTING THE DEPARTMENT VEH EMENTLY SUPPORTED THE FINDINGS OF THE COMMISSIONER OF INCOME TAX (APPEALS). HOWEVER, THE LD. DR ADMITTED THAT IDENTICAL ISSUES HAVE BEE N DECIDED BY THE TRIBUNAL IN ASSESSEES OWN APPEAL FOR ASSESSMENT YEAR 200 9-10. 5. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESEN TATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF THE AUTHORITIE S BELOW. WE FIND THAT THE GROUNDS RAISED IN THE PRESENT APPEAL ARE ID ENTICAL TO THE ONE RAISE BY THE ASSESSEE BEFORE THE TRIBUNAL IN ITA NO. 208/PN/2014 FOR THE ASSESSMENT YEAR 2009-10. THE ASSESSEE HAS PLA CED ON RECORD A COPY OF THE ORDER OF TRIBUNAL IN ITA NO. 208/PN/2011. THE RELEVANT EXTRACT OF THE AFORESAID ORDER IS REPRODUCED HERE-IN-BELOW: 5. WE FIND THAT AN IDENTICAL ISSUE AROSE BEFORE PU NE BENCH OF THE TRIBUNAL IN SHRI SHRENIK SHANTILAL DHADIWAL VS. THE TAX RECOVERY OFFICER (IT) (SUPRA), WHEREIN THE TRIBUNAL IN TURN, RELIED ON THE DECISIONS IN M/S. BALAJI AGENCIES VS. ITO IN ITA NO.353/PN/2014 RELAT ING TO ASSESSMENT YEAR 2009-10, ORDER DATED 20.02.2015, ITO VS. SHRI DINESH SATYANARAYAN TAWANI, ITA NO.938/PN/2013 AND ITO VS. SHRI SANJAY MOHANLAL CHHAJED, ITA NO.1746/PN/2012 BOTH RELATING TO ASSESSMENT YEAR 2009-10. THE TRIBUNAL VIDE ORDER OF EVEN DATE IN ITO VS. SHRI DINESH SATYANARAYAN TAWANI (SUPRA), HELD AS UNDER:- 7. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE WAS A DEALER OF GAI CHAP ZARDA, TEA AND OTHER GOODS OF SARGAM RETAILERS PVT. LTD., MALPANI TEAL CORPORATION AND MALPANI PRODUCTS, SANGAMNER. T HE ASSESSEE WAS CARRYING ON TRADING ON WHOLESALE BASIS. THE ASSESSI NG OFFICER RECEIVED A 4 ITA NO. 1864/PN/2013, A.Y. 2010-11 REFERENCE FROM DDIT (INV.), UNIT-I(2), PUNE, IN THE CASE OF MALPANI GROUP OF CASES OF SANGAMNER AND PUNE. ON THE BASIS OF THE SA ID INFORMATION, THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND NOTICES UNDER SECTION 143(2) / 142(1) WERE ISSUED. IN THE SEARCH ACTION C ARRIED OUT UNDER SECTION 132 OF THE ACT, IN THE MALPANI GROUP OF CAS ES, CERTAIN DOCUMENTS WERE FOUND AND SEIZED FROM VARIOUS PREMISES OF THE SAID GROUP. THE STATEMENT OF SHRI RAJESH OMKARNATH MALPANI, DIRECTO R 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 TH AT M/S. SARGAM RETAILERS PVT. LTD., HAD COLLECTED CASH FROM THE DE ALERS OF GAI CHAP ZARDA ON ACCOUNT OF FAILURE OF FULFILLMENT OF TARGE TS SET FOR SALE OF GAI CHAP ZARDA. A LIST OF DEALERS AND AMOUNT OF CASH CO LLECTED FROM EACH DEALER WAS MADE PART AND PARCEL OF THE STATEMENT. A S PER THE LIST FORWARDED BY THE DDIT (INV.), A SUM OF RS.16,51,445 /- WAS COLLECTED FROM THE ASSESSEE FOR THE INSTANT ASSESSMENT YEAR O N ACCOUNT OF NON- FULFILLMENT OF TARGET OF SALES OF GAI CHAP ZARDA. T HE ASSESSEE, IN REPLY, STATED THAT THE ASSESSEE HAD NOT GIVEN ANY CASH PAY MENT OF RS.16,51,445/- OTHER THAN THE PAYMENT RECORDED IN T HE BOOKS OF ACCOUNT TOWARDS PURCHASES MADE FROM M/S. SARGAM RETAILERS P VT. LTD. THE A.O. REJECTED THE REPLY OF THE ASSESSEE AND OBSERVED THA T SINCE THE PAYMENTS WERE RECEIVED IN CASH, THE SAME WOULD NOT BE RECORD ED IN THE BOOKS OF ACCOUNT. IN VIEW OF THE STATEMENT OF SHRI RAJESH OM KARNATH MALPANI, RECORDED UNDER SECTION 132(4) OF THE ACT, WHICH AS PER THE A.O. HAD EVIDENTIARY VALUE COULD BE TAKEN AS TRUE. HENCE, TH E SAID AMOUNT 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, AL SO ADMITTED THAT M/S. SARGAM RETAILERS PVT. LTD., HAD COLLECTED CASH FROM DEALERS ON ACCOUNT OF REJECTED GOODS. IT WAS ADMITTED BY HIM T HAT THE SAME AMOUNT WAS COLLECTED FROM THE DEALERS AGAINST THE SAID REJ ECTION. THE AMOUNT COLLECTED FROM THE ASSESSEE ON ACCOUNT OF REJECTED GOODS FOR THE YEAR UNDER APPEAL WAS RS.10,80,207/-. THE ASSESSEE EXPLA INED THAT IT HAD RETURNED 727 BAGS OF GAI CHAP ZARDA AND EXCEPT THE SAID GOODS RETURNED NO OTHER CASH PAYMENT ON ACCOUNT OF REJECT ED GOODS WAS MADE BY THE ASSESSEE. THE ASSESSING OFFICER, IN VIEW OF THE STATEMENT OF SHRI RAJESH O. MALPANI, MADE AN ADDITION OF RS.10,80,207 /- IN THE HANDS OF THE ASSESSEE. 8. BEFORE THE CIT(A), THE CASE OF THE ASSESSEE WAS THAT IT HAD NOT MADE THE SAID PAYMENT. FURTHER, NO AGREEMENT HAS BEEN FO UND BETWEEN THE SAID CONCERN AND THE DEALERS TOWARDS ALLEGED PAYMEN T TO BE MADE FOR NON-FULFILLMENT OF TARGETS BY THE DEALERS. ENTIRE C ONTENTION RAISED BY THE ASSESSEE WAS WHERE THE CONCERNED PERSON HAD ADMITTE D THE TRANSACTION 5 ITA NO. 1864/PN/2013, A.Y. 2010-11 FOUND IN THE SEIZED MATERIAL AND HAD OFFERED THE SA ME TO TAX AND PAID DUE TAXES, THEN THERE WAS NO QUESTION OF ADDITION I N RESPECT OF SAID TRANSACTION IN THE HANDS OF THE THIRD PARTY. THE CI T(A) FORWARDED THE SUBMISSIONS OF THE ASSESSEE TO THE A.O. WHO SUBMITT ED THE REMAND REPORT. THE ASSESSEE FILED COUNTER COMMENTS AND STA TED THAT THE A.O. HAD FAILED TO GIVE COPIES OF THE STATEMENT RECORDED OF SHRI RAJESH O. MALPANI, AND THE ALLEGED PAPERS FOUND DURING THE CO URSE OF SEARCH. THE ASSESSEE ALSO ASKED FOR CROSS EXAMINATION OF SHRI R AJESH O. MALPANI. THE A.O., IN THE REMAND PROCEEDINGS, PROVIDED THE C OPY OF THE STATEMENT AND OTHER PAPERS TO THE ASSESSEE AND ALSO ALLOWED C ROSS EXAMINATION OF SHRI RAJESH O. MALPANI, WHICH WAS CARRIED OUT ON 1 ST JANUARY 2013. THE RELEVANT PORTION OF THE SAID STATEMENT IS REPRODUCE D AT PAGE-9 AND 10 OF THE APPELLATE ORDER. THE ASSESSING OFFICER, IN HIS REPORT DATED 4 TH JANUARY 2013, STATED THAT SHRI RAJESH O. MALPANI, I N REPLY TO QUESTION NO.9, DENIED TO HAVE RECEIVED ANY CASH FROM THE ASS ESSEE. HOWEVER, IN REPLY TO QUESTION NO.10, HE HAD STATED THAT CASH WA S COLLECTED BY THEIR FIELD STAFF FROM BEED AREA. THE A.O. FURTHER STATED THAT SHRI RAJESH O. MALPANI, HAD ACCEPTED THAT THEY HAVE RECORDED THE B USINESS TRANSACTION MADE WITH THE ASSESSEE IN THEIR BOOKS OF ACCOUNT AN D THE AMOUNTS 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/- HA S BEEN MADE BY THE APPELLANT TO SRPL. IT HAS ALSO BEEN POINTED 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 AGA INST WHICH THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 9. WE FIND THAT SIMILAR ISSUE OF CASH PREMIUM IN R ESPECT 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 2009-10. 6 ITA NO. 1864/PN/2013, A.Y. 2010-11 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 AND 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 COLLECTED 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) UNACCOUNTED CASH COLLECTED (RS.) PARAKH AGENCIES NANDGAON PAN AAFFP6717L 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.7,77,1 90/- HAS BEEN REFLECTED IN THE BOOKS OF ACCOUNT AND TO EXPLAIN TH E NATURE OF THE SAID TRANSACTIONS. IN RESPONSE TO THIS QUERY OF THE AO, THE ASSESSEE FILED DETAILS OF TRANSACTIONS WITH SARGAM RETAILS PVT. LT D. SANGAMNER AND DENIED ANY SUCH PAYMENT OF RS.7,77,190/- TO SARGAM RETAILS PVT. LTD. SANGAMNER. HOWEVER, THE AO REJECTED THE REPLY OF TH E ASSESSEE AND MADE THE ADDITIONS OF RS.7,77,190/- BY RELYING ON T HE STATEMENT RECORDED U/S 132(4) OF SHRI RAJESH O. MALPANI, DIRE CTOR OF SARGAM RETAILS PVT. LTD. DURING SEARCH ACTION IN THE CASE OF THE SAID CO. IN SUPPORT OF THIS ADDITION, THE AO RELIED ON THE DECI SION OF HON'BLE ITAT, DELHI IN THE CASE OF HERSH WIN CHADHA VS. DDIT. THE AO, RELYING 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 CONTAINED IN THE INDIAN EVIDENCE ACT ARE NOT APPLICABLE IN THE INCOME TAX PROCEEDINGS. IN CLANDESTINE TRANSACTIONS, IT IS IMPOSSIBLE TO HAVE DIRECT EVIDE NCE TO PROVE THE SAID 7 ITA NO. 1864/PN/2013, A.Y. 2010-11 TRANSACTIONS. THE AO HAS TO ASSESS THE TAX LIABILI TY CONSIDERING THE MATERIAL AVAILABLE ON RECORD, SURROUNDING CIRCUMSTA NCES, PREPONDERANCE OF PROBABILITIES AND EVIDENCE AVAILABLE ON RECORD. 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 TREATED THAT IN RESPECT OF BALANCE QUANTITY OF 3122 BAGS THE PREMIUM @ 91.67 PER BAG, I.E. RS.2,80 ,193/- WAS ALSO COLLECTED FROM THE MARKET AS UNACCOUNTED CASH AND R ETAINED WITH HIMSELF AS UNACCOUNTED INCOME. THE ASSESSEE DENIED ANY SUCH COLLECTION AND REPLIED TO THE ASSESSING OFFICER ACC ORDINGLY. THE ASSESSING OFFICER, HOWEVER, REJECTED THE REPLY OF THE ASSESSE E AND MADE ADDITION OF RS.2,86,193/- ON ACCOUNT OF UNACCOUNTED INCOME. 10. THE TRIBUNAL, THEREAFTER, DELETED THE ADDITION UPHOLDING 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 THE STATEMENT RECORDED U/S.132(4) OF SHRI RAJESH O. MALPANI, DIRECTOR OF SARGAM RETAI LS PVT. LTD. MADE ADDITION OF RS.7,77,190/- ON THE GROUND THAT SARGAM RETAILS PVT. LTD. HAS COLLECTED PREMIUM ON SALE OF GAICHAP ZARDA FROM THE DEALERS IN CASH BY CHARGING LESS PRICE OF THE PRODUCT TO THE DEALER S. WE FIND THE LD.CIT(A) DELETED THE ADDITION MADE BY THE ASSESSIN G 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 SPECIFICALLY RAISED BEFORE THE ASSESSING OFFICER. HE FURTHER HELD THAT ADDITION CANNOT BE MADE ON THE BASIS OF A STATEMENT RECORDED ON OATH UNLESS OPPORTUNITY OF CROSS EXAMIN ATION 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 RETAILS PVT. LTD. FROM VARIOUS RETAILERS AND THE RESULTANT INCOME OF THE ASSESSEE ON THESE TRANSACTIONS WILL BE NIL. THIS REASONED FINDING BY THE LD.CIT(A ) IN OUR OPINION DOES NOT SUFFER FROM ANY INFIRMITY IN ABSENCE OF ANY CON TRARY MATERIAL BROUGHT TO OUR NOTICE BY THE LD. DEPARTMENTAL REPRESENTATIV E. THEREFORE, THE ADDITION OF RS.7,77,190/- DELETED BY THE LD. CIT(A) IN OUR OPINION IS JUSTIFIED AND THE GROUND OF APPEAL NO.1 BY THE REVE NUE IS DISMISSED. 8 ITA NO. 1864/PN/2013, A.Y. 2010-11 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 THE BAGS IN RESPECT O F WHICH THE ADDITION HAS BEEN MADE AT 8478 BAGS. THE LD.CIT(A) HAS GIVE N A FINDING THAT THIS ADDITION OF THE ASSESSING OFFICER IS NOT SUPPO RTED BY ANY EVIDENCE. THE LD. DEPARTMENTAL REPRESENTATIVE ALSO COULD NOT BRING ANY MATERIAL TO CONTROVERT THE FINDING GIVEN BY THE LD.CIT(A) WH ICH 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) DELETING THE ADDITION OF RS.2,86,193/- IN OUR OPINION, ALSO DOES NOT SUFFER FROM ANY INFIRMITY. ACCORDINGLY, THE SAME IS UPHELD. 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 DATED 05 -03-2013 THAT HE HAS ACCEPTED THAT NO CROSS EXAMINATION OF SHRI RAJESH O . MALPANI WAS ALLOWED TO THE ASSESSEE DURING ASSESSMENT PROCEEDIN GS. THEREFORE, GROUND OF APPEAL NO.3 BY THE REVENUE IS DISMISSED. 11. THE FACTS AND ISSUE ARISING IN THE PRESENT APP EAL ARE IDENTICAL TO THE FACTS AND ISSUE BEFORE THE TRIBUNAL IN THE CASE OF M/S. PARAKH AGENCY (SUPRA) AND FOLLOWING THE SAME PARITY OF REASONING, WE UPHOLD THE ORDER OF THE LD. CIT(A) IN DELETING THE ADDITION OF RS.16 ,51,445/- AND RS.10,80,207/-. THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE THUS DISMISSED. 6. THE ISSUE RAISED IN THE PRESENT APPEAL IS IDENTI CAL TO THE ISSUE BEFORE THE TRIBUNAL IN SHRI SHRENIK SHANTILAL DHADI WAL VS. THE TAX RECOVERY OFFICER (IT) (SUPRA), M/S. BALAJI AGENCIES VS. ITO (SUPRA), ITO VS. SHRI DINESH SATYANARAYAN TAWANI (SUPRA) AND ITO VS. SHRI SANJAY MOHANLAL CHHAJED (SUPRA) AND FOLLOWING THE SAME PAR ITY OF REASONING, WE DIRECT THE ASSESSING OFFICER TO DELETE THE ADDIT IONS MADE ON ACCOUNT OF UNACCOUNTED CASH PAYMENT OF RS.11,68,500/- AND R S.5,35,000/-. THUS, THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE ALLOWED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. 6. SINCE, ISSUES RAISED IN THE PRESENT APPEAL IS IDENTICAL T O THE ONE ALREADY DECIDED BY THE TRIBUNAL IN ASSESSEES OWN CASE FO R THE 9 ITA NO. 1864/PN/2013, A.Y. 2010-11 PRECEDING ASSESSMENT YEAR. THE LD. DR HAS NOT BROUGHT BEFORE US ANY DISTINGUISHING FACTOR IN THE ASSESSMENT YEAR UNDER APPEAL. WE FIND NO REASON TO TAKE A DIFFERENT VIEW. ACCORDINGLY, THE ADDITION OF RS.16,62,200/- ON ACCOUNT OF TARGET COMMISSION AND RS.8,88,9 61/- ON ACCOUNT OF GOODS RETURNED IS DELETED AND THE IMPUGNED O RDER IS SET ASIDE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON FRIDAY, THE 01 ST DAY OF JANUARY, 2016. SD/- SD/- ( . . / R.K. PANDA) ( ! ' / VIKAS AWASTHY) #' / ACCOUNTANT MEMBER $ % #' / JUDICIAL MEMBER / PUNE; &# / DATED : 01 ST JANUARY, 2016 RK *+,%-.#/#)- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ' () / THE CIT(A)-IT/TP, PUNE 4. ' / THE CIT-I, PUNE 5. !*+ %%,- , ,- , . ./0 , / DR, ITAT, B BENCH, PUNE. 6. + 1 23 / GUARD FILE. // ! % // TRUE COPY// #4 / BY ORDER, %5 ,0 / PRIVATE SECRETARY, ,- , / ITAT, PUNE