DCIT, New Delhi V. M/s JRM Steels Pvt. Ltd., New Delhi

ITA 1880/DEL/2011

• Counselvise Citation: 188020114 RSA 2011
• Duration Of Justice: 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 11-10-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 18-04-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JAYANT MISHRA
• Assessee Lawyers: S KRISHNAN
• Keywords: Unexplained expenditure; Income from undisclosed sources; Opportunity of being heard; Source of fund; Set aside
• Section: 69C; 143(3); 147; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D NEW DELHI BEFORE SHRI R.P. TOLANI AND SHRI K.D. RANJAN ITA NOS. 1869 & 1870/DEL/2011 ASSTT. YRS: 2000-01 & 2001-02 JRM STEEL PVT. LTD. VS. DCIT CIRCLE 4(1), D-16, S-1, 2 ND FLOOR, NEW DELHI. CITY CENTRE, CENTRAL MARKET, PRASHANT VIHAR, DELHI. PAN/GIR NO. AAACJ0584D ITA NOS. 1879 & 1880/DEL/2011 ASSTT. YRS: 2000-01 & 2001-02 DCIT CIRCLE 4(1), VS. JRM STEEL PVT. LTD. NEW DELHI. D-16, S-1, 2 ND FLOOR, CITY CENTRE, CENTRAL MARKET, PRASHANT VIHAR, DELHI. (APPELLANT ) ( RESPONDENT ) ASSESSEE BY : SHRI S. KRISHNAN ADV. REVENUE BY : SHRI JAYANT MISHRA O R D E R PER BENCH : THESE ARE CROSS APPEALS FOR A.Y. 2000-01 & 2001-02. ALL THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY A CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. RESPECTIVE GROUNDS ARE AS UNDER: ASSESSEES APPEALS : A.Y. 2000-01 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN CONFIRMING THE ACTION OF TH E ASSESSING OFFICER IN MAKING AN ADDITION OF RS. 24,50,500/- MA DE U/S 69C ITA 1869, 1870, 1879 & 1880/DEL/11 AY 2000-01 & 2001-02 2 OF THE ACT ON THE ALLEGATION THAT CASH PAYMENTS HAV E BEEN MADE TO M/S JINDAL ELECTRO CASTINGS PVT. LTD. 2001-02 : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD. CIT(A) ERRED IN CONFIRMING THE ACTION OF THE AS SESSING OFFICER IN MAKING AN ADDITION OF RS. 20,51,356/- MA DE U/S 69C OF THE ACT ON THE ALLEGATION THAT CASH PAYMENTS HAV E BEEN MADE TO M/S JINDAL ELECTRO CASTINGS PVT. LTD. REVENUES APPEALS : A.Y. 2000-01 02. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(APPEALS) HAS ERRED IN RESTRICTING THE ADDITION U/S 69C OF THE ACT TO RS. 24,50,500/- AS AGAINST RS . 86,87,000/- MADE BY THE AO BEING THE UNEXPLAINED CASH PAYMENTS. 2.1. THE LD. CIT(A) HAS IGNORED THE FINDINGS RECORD ED BY THE AO AND THE FACT THAT THE ASSESSEE DID NOT DISCHARGE THE ONUS OF PROVING THE GENUINENESS OF THE CASH PAYMENTS MADE E ITHER DURING THE ASSESSMENT OR DURING THE RE-ASSESSMENT PROCEEDINGS. A.Y. 2001-02 02. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(APPEALS) HAS ERRED IN RESTRICTING THE ADDITION U/S 69C OF THE ACT TO RS. 20,51,356/- AS AGAINST RS . 2,42,71,186/- MADE BY THE AO BEING THE UNEXPLAINED CASH PAYMENTS. 2.1. THE LD. CIT(A) HAS IGNORED THE FINDINGS RECORD ED BY THE AO AND THE FACT THAT THE ASSESSEE DID NOT DISCHARGE THE ONUS OF PROVING THE GENUINENESS OF THE CASH PAYMENTS MADE E ITHER DURING THE ASSESSMENT OR DURING THE RE-ASSESSMENT PROCEEDINGS. ITA 1869, 1870, 1879 & 1880/DEL/11 AY 2000-01 & 2001-02 3 2. IT IS PLEADED THAT THE COMMON MAJOR ISSUE INVOLV ED IN BOTH THE YEARS IS IN RESPECT OF ALLEGED UNEXPLAINED EXPENDITURE MADE BY THE AO U/S 69C. 3. BRIEF FACTS ARE : ASSESSEE IS IN THE BUSINESS OF MANUFACTURE AND TRADING OF STEEL BARS. THE ASSESSEES ORIGINAL RETURNS WERE ACCEPTED U/S 143(1). CONSEQUENT TO A SEARCH CARRIED OUT AT THE BUSINESS PREMISES OF JINDAL GROUP OF CASES ON 30-11-2000, THE ASSESSMENTS WERE REOPEN ED U/S 148. ACCORDING TO AO, SOME INCRIMINATING DOCUMENTS REVEALED THAT M /S JINDAL ELECTRO CASTINGS PVT. LTD., HISSAR (JECPL) RECEIVED CASH PAYMENTS FOR PURCHASE OF STEEL, WHICH WERE NOT ENTERED IN THE ACCOUNT OF THE ASSESSEE, WHICH IS THE SUBJECT MATTER OF THESE APPEALS. 3.1. THE ABOVE AMOUNTS WERE ADDED IN BOTH THE YEAR S WHERE THE ASSESSEE PREFERRED APPEALS. CIT(A) ALLOWED PART RELIEF OF RS . 62,37,000/- IN A.Y. 2000-01 AND RS. 2,22,19,840/- IN A.Y. 2001-02. IT I S PERTINENT TO MENTION HERE THAT THE ORDERS OF CIT(A) WERE ACCEPTED BY THE REVENUE AND NO FURTHER APPEALS WERE FILED BY IT BEFORE ITAT. HOWEVER, AGAI NST PART SUSTENANCE OF ADDITION OF RS. 24,50,500/- FOR A.Y. 2000-01 AND RS . 20,51,356/- FOR A.Y. 2001-02, THE ASSESSEE PREFERRED APPEALS BEFORE THE ITAT. 3.2. THE ITAT DELHI BENCH C IN ITA NOS. 821 & 822 /DEL/07 VIDE ITS ORDER DATED 23-3-2009 RESTORED THE MATTER, APPEALED BY ASSESSEE, BACK TO THE FILE OF AO TO DECIDE THE SAME AFRESH BY FOLLOWING O BSERVATIONS: 2. BOTH PARTIES LEARNED AR AND LEARNED DR ARE HEAR D, WHO AGREED FOR FOLLOWING PROPOSITIONS: (I) THE GROUND ABOUT RE-OPENING OF ASSESSMENT WILL NOT BE PRESSED BY THE ASSESSEE. (II) IN VIEW OF HONBLE DELHI HIGH COURT JUDGMENT I N THE CASE OF CIT VS. SMC STOCKBROKERS LTD., THE MATTER W ILL BE SET ITA 1869, 1870, 1879 & 1880/DEL/11 AY 2000-01 & 2001-02 4 ASIDE AND RESTORED BACK TO THE FILE OF AO INASMUCH AS THE STATEMENT OF SHRI PRADEEP JINDAL WAS NEITHER SHOWN TO ASSESSEE NOR IT WAS MADE AVAILABLE FOR CROSS EXAMINATION. HI S STATEMENT CONSTITUTES THE MAJOR BASIS FOR ADDITIONS MADE DURI NG EH COURSE OF RE-ASSESSMENT. 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. IN VIEW OF THE AGREED PROPOSITI ONS, WE SET ASIDE THE MATTER BACK TO THE FILE OF AO TO DECIDE T HE SAME AFRESH. AO WILL PROVIDE THE COPIES OF THE STATEMENT OF SHRI PRADEEP JINDAL AND IF DESIRED BY THE ASSESSEE, AFFO RD AN OPPORTUNITY TO CROSS-EXAMINE HIM AND THEREAFTER TO MAKE FRESH ASSESSMENT AFTER GIVING ASSESSEE AN OPPORTUNITY OF BEING HEARD. THE ASSESSEE WILL NOT RAISE THE ISSUE ABOUT RE-OPEN ING OF ASSESSMENT IN FRESH PROCEEDINGS. THESE AGREED PROPO SITIONS ARE ACCEPTED AND MATTERS ARE ACCORDINGLY SET ASIDE, RES TORED BACK TO THE FILE OF AO. 3.3. CONSEQUENT TO ABOVE ITAT ORDER, AO PROCEEDED T O REFRAME THE ISSUES AND INSTEAD OF CONFINING HIS ORDER TO THE QUANTUM W HICH WAS THE SUBJECT MATTER OF ASSESSEES APPEAL BEFORE THE ITAT, REPEAT ED THE ENTIRE ORIGINAL ADDITIONS OF RS. 86,87,000/- AND RS. ,42,71,1986/- AGAIN FOR A.Y. 2000-01 & 20001-02 IN THESE REFRAMED ORDERS. 3.4. AGGRIEVED THEREON, ASSESSEE PREFERRED FIRST AP PEALS BEFORE THE CIT(A), WHERE FOLLOWING WAS CONTENDED: IN THE APPEAL EFFECT ORDER, THE AO HAS WRONGLY GON E BY THE GROSS FIGURES OF RS. 86,87,000/- AND RS. 2,42,71,18 6/- IN ASSESSMENT YEARS 2000-01 AND 2001-02 RESPECTIVELY. THE AO LITTLE REALIZED THAT A MAJOR COMPONENT OF THIS AMOU NT IN THE SUM OF RS. 62,37,000/- AND RS. 2,22,19,840/- IN ASSESSM ENT YEARS 2000-01 AND 2001-02 RESPECTIVELY HAD ALREADY BEEN D ELETED BY THE CIT(A) IN THE FIRST ROUND OF PROCEEDINGS AND TH AT THE REVENUE HAD ACCEPTED THAT ORDER. SUCH HAD BECOME FI NAL. IN THAT VIEW OF THE MATTER, THE AO COULD NOT RE-ASSUME JURISDICTION WITH REGARD TO THE CORRECTNESS OR OTHERWISE OF THAT DECISION. DURING THE COURSE OF THE PROCEEDINGS FOR GIVING EFF ECT TO THE ITA 1869, 1870, 1879 & 1880/DEL/11 AY 2000-01 & 2001-02 5 ORDER OF THE TRIBUNAL, THE ASSESSEE HAD FILED BEFOR E THE AO NOT ONLY THE TRIBUNALS ORDER WHICH WAS THE FOUNDATION OF THE PROCEEDINGS BEFORE HIM BUT ALSO THE GROUNDS OF APPE AL AS CANVASSED BEFORE THE TRIBUNAL. IT WAS ALSO REPEATED LY BROUGHT TO THE NOTICE OF THE AO THAT THE REVENUE HAD NOT APPEA LED AGAINST THE ORDER OF THE CIT(A) IN THE FIRST ROUND OF PROCE EDINGS WHEREBY CIT(A) HAD DIRECTED RELIEF TO THE ASSESSEE. IT WAS ALSO SUBMITTED TO THE AO THAT HE COULD NOT BE IN SEISN V IS A VIS THE ENTIRE ADDITION OF RS. 86,47,000/- AND RS. 2,42,71, 186/- IN ASSESSMENT YEARS 2000-01 AND 2001-02 RESPECTIVELY F OR HE HAD NO JURISDICTION ON THE POINT CONCERNING A QUANTUM O F RS. 62,37,000/- RS. 2,22,19,840/- IN ASSESSMENT YEARS 2 000-01 AND 2001-02 RESPECTIVELY. WITHOUT ANY HEED TO THESE EXP LANATIONS AND IMPLORATIONS, THE AO ONCE AGAIN BROUGHT TO TAX THE ENTIRE MONIES OF RS. 86,87,000/- AND RS. 2,42,71,186/-- IN ASSESSMENT YEARS 2000-01 AND 2001-02 RESPECTIVELY INCLUDING TH E SUMS OF RS. 62,37,000/- AND RS. 2,22,19,840/- WHICH WAS CLE ARLY BEYOND HIS REACH OR PURVIEW. AS POINTED OUT ABOVE, IT IS SUBMITTED, THAT THE AO WAS REPOSED JURISDICTION BY THE TRIBUNAL ONLY TO CONSIDER AND D ECIDE ON THE ASPECT OF ADDITIONS OF RS. 24,50,500/- AND RS. 20,5 1,356/- IN ASSESSMENT YEARS 2000-01 AND 2001-02 RESPECTIVELY B EING THE AMOUNTS RETAINED BY THE CIT(A) OUT OF THE TOTAL ADD ITION OF RS. 86,87,000/- AND RS. 2,42,71,186/- AS ORIGINALLY MAD E BY THE AO. THE REVENUE HAVING ACCEPTED THE DELETION OF THE ADDITION TO THE EXTENT OF RS. 62,37,000/- & RS. 2,22,19,840/ - IN ASSESSMENT YEARS 2000-01 & 2001-02 RESPECTIVELY AND THE ASSESSEE ONLY HAVING AGITATED AGAINST THE ADDITIONS OF RS. S24,50,500/- AND RS. 20,51,356/- IN ASSESSMENT YEAR S 2000-01 AND 2001-02 RESPECTIVELY BEFORE THE TRIBUNAL, THE S OLE ISSUE LEFT FOR CONSIDERATION OF THE AO WAS THE MERITS OF THE A DDITION OF RS. 24,50,500/- AND RS. 20,51,356/- IN ASSESSMENT Y EARS 2000- 01 AND 2001-02 RESPECTIVELY ALONE. THE AO MISLED HI MSELF TO RETURN TO THE GROSS ADDITION OF RS. 86,87,000/- AND RS. 2,42,71,186/- IN ASSESSMENT YEARS 2000-01 AND 2001- 02 RESPECTIVELY IN RESPECT TO WHICH HE HAD NO AUTHORIT Y OR JURISDICTION. THE ADDITION OF RS. 62,37,000/- AND R S. 2,22,19,840/- MUST, THEREFORE, BE QUASHED IN LIMINI . ITA 1869, 1870, 1879 & 1880/DEL/11 AY 2000-01 & 2001-02 6 WITH REGARD TO THE SUM AS ADDED ON MERITS, IT IS SU BMITTED THAT HE CONCERNED PARTY M/S JINDAL ELECTRO CASTING PVT. LTD. CONFIRMED THAT IT HAD SOLD MS INGOTS TO THE APPELLA NT DURING THE CALENDAR YEAR 2000. IT FURTHER CONFIRMED THAT PAYME NT FOR SUCH MATERIAL FROM THE APPELLANT HAD BEEN RECEIVED BY IT THROUGH ACCOUNT PAYEE CHEQUES, WHICH WERE DULY DEPOSITED IN ITS CURRENT ACCOUNT MAINTAINED WITH THE ORIENTAL BANK OF COMMER CE SAMALKHA (HARYANA). THE DIRECTOR OF THE SAID COMPAN Y WENT ON TO CONFIRM THAT ON THE BASIS OF AN AUTHORITY GRANTE D BY THEM TO AN EMPLOYEE OF THE APPELLANT, CASH WITHDRAWALS WERE MADE FROM THAT ACCOUNT WHICH FINDS MENTION IN THE KACHH I ROKAR MAINTAINED BY THE DIRECTOR. THE AMOUNT WAS SHOWN TO THE CREDIT OF THE APPELLANT IN THE KACHHI ROKAR. THIS W AS CONFIRMED BY SRI P.R. JINDAL ON BEHALF OF M/S JINDAL ELECTRO- CASTING PVT. LTD. VIDE LETTER DATED 12.10.2001. FURTHER VIDE LET TER DATED 04- 11-2010 SRI P.R. JINDAL INFORMED THAT PERSONAL APPE ARANCE COULD NOT BE MADE BY SRI PRADEEP JINDAL AT THE RELE VANT TIME FOR HE WAS DOWN WITH VIRAL FEVER AND HAD BEEN ADVISED R EST BY THE DOCTORS. SRI P.R. JINDAL NEVERTHELESS SUBMITTED A C OPY OF THE BANK STATEMENT WITH THE ORIENTAL BANK OF COMMERCE S AMALKHA (HARYANA) OF THEIR COMPANY M/S JINDAL ELECTRO-CASTI NG PVT. LTD. HE FURTHER INFORMED THAT THEIR COMPANY HAD STO PPED MANUFACTURING AND TRADING ACTIVITIES FOR THE LAST S O MANY YEARS AND THAT THE ISSUE IN DISPUTE PERTAINED TO OLD MATT ERS RELEVANT TO THE A.YS. 2000-01 AND 2001-02. THE AO, HOWEVER, GLOSSED THROUGH THESE REPLIES WHEN HE STATED AT PAGE 3 IN PARA 3 OF THE ORDER QUOTE . AND ADMI TTED THAT THIS COMPANY HAS PURCHASED M.S. INGOTS FROM JRM STE EL PVT. LTD. DURING THE YEAR 2000-01 AND 2001-02 AND SHOWED HIS INABILITY FOR HIS PERSONAL ATTENDANCE DUE TO HEALTH REASONS UNQUOTE. THE AO FOR REASONS BEST KNOWN TO HIM IGNOR ED THE CONFIRMATION AND EXPLANATION TENDERED BY THE PERSON OWNING THE KACHHI ROKAR. THE AO ALSO CONVENIENTLY IGNORED THE FACT THAT HE APPELLANT HAD PAID MONIES BY CHEQUES DURING THE NORMAL AND REGULAR COURSE OF ITS BUSINESS ACTIVITY AND ANY WITHDRAWAL OF ANY AMOUNT, THEREAFTER BY THE RECIPIE NT OF SUCH MONIES FROM HIS BANK ACCOUNT, WAS NOT OF ANY CONCER N OR EFFECT TO THE APPELLANT. ITA 1869, 1870, 1879 & 1880/DEL/11 AY 2000-01 & 2001-02 7 IT IS SUBMITTED THE TRANSACTIONS IN QUESTION WERE D ULY CONFIRMED BY THE OTHER PARTY WHICH HAD ORIGINALLY BEEN THE SU BJECT MATTER OF SEARCH BY THE IT DEPARTMENT. THE AID PARTY HAD S UBMITTED COPY OF ITS BANK ACCOUNT TO SHOW AND PROVE THAT IN RESPECT OF SALES MADE BY THEM TO THE APPELLANT, THE APPELLANT HAD INDEED REMITTED THE SALE CONSIDERATION THROUGH CHEQUES WHI CH HAD BEEN BANKED BY IT WITH ITS ACCOUNT IN THE ORIENTAL BANK OF COMMERCE, SAMALKHA. IN THIS WAY, THERE WAS JUST NO BLEMISH OR ERROR IN RESPECT OF THE REPORTED TRANSACTIONS VIS A VIS YOUR APPELLANT. SRI P.R. JINDAL, DIRECTOR OF THE COMPANY SUPPLYING THE MATERIAL TO THE APPELLANT HAD FURTHER CONFIRMED THAT UNDER THIS AUTHORITY MONIES WERE WITHDRAWN FROM THE ORIEN TAL BANK OF COMMERCE, SAMALKHA. IN THIS WAY, THERE IS A DIRE CT LINKAGE AND CONNECTIVITY BETWEEN THE DEPOSIT OF THE SALE CO NSIDERATION IN THE ORIENTAL BANK OF COMMERCE, SAMALKHA AND WITH DRAWAL FROM THAT ACCOUNT IN CASH AND ITS ENTRY IN THE KACH HI ROKAR. THE TRANSACTION, THUS WAS PROVED TO THE HILT RIGHT FROM ITS ORIGIN TO ITS ULTIMATE CONCLUSION. THERE WAS NOTHING LEFT UNE XPLAINED WITH REGARD TO ANY ASPECT OF THESE TRANSACTIONS. THE AO ERRED IN MISUNDERSTANDING, THE TRANSACTION A S AN ACT OF SALE BY APPELLANT THROUGH M/S JINDAL ELECTRO-CASTIN G PVT. LTD. IN FACT THE APPELLANT HEREIN WAS THE PURCHASER. THE AO ALSO ERRED IN NOT ABIDING BY THE DIRECTIONS OF THE TRIBU NAL TO AFFORD TO GIVE AN OPPORTUNITY TO CROSS EXAMINATION SRI PRA DEEP JINDAL. BE THAT AS IT MAY, THE STATEMENT OF SRI PRADEEP JIN DAL IN THIS REGARD WAS EXCULPATORY VIS A VIS OF YOUR APPELLANT. THAT BEING THE CASE EVEN IN THE ABSENCE OF A FORMAL CROSS EXAM INATION, THE FACTUM OF YOUR APPELLANT HAVING PAID THROUGH BANKIN G CHANNELS FOR THE PURCHASES MADE BY IT, STOOD ESTABLISHED INC ONTROVERTIBLY. FURTHER, THE FACTUM OF WITHDRAWAL IN CASH FROM THE SAME BANK ACCOUNT AND THEIR ENTRY IN THE KACHHI ROKAR OF SRI P.R. JINDAL ALSO STOOD CONFIRMED AND WAS BEYOND DENIAL OR REPU DIATION OF THE AO. THERE WAS NO EVIDENCE TO INDICATE THAT ANY CASH DEPOSIT IN THE KACHHI ROKAR WAS MADE OTHERWISE THAN THROUGH THE WITHDRAWALS FROM THE ACCOUNT OF THE ORIENTAL BANK O F COMMERCE, SAMALKHA OF THE M/S JINDAL ELECTRO-CASTIN G PVT. LTD. THE KACHHI ROKAR WAS OWNED BY SRI P.R. JINDAL. EVEN LEGALLY THERE WAS A PRESUMPTION IN THIS REGARD IN FAVOUR OF SRI P.R. JINDAL. THE ONUS IN TERMS OF THE PRESUMPTION O F SRI P.R. ITA 1869, 1870, 1879 & 1880/DEL/11 AY 2000-01 & 2001-02 8 JINDAL HAD ALSO BEEN DISCHARGED BY HIM. AT ANY RATE THE ADDITION, IF ANY, WAS RELEVANT TO SRI P.R. JINDAL A ND HIS GROUP AND NOT TO THE APPELLANT UNDER ANY CIRCUMSTANCE. IN THIS BACKGROUND, THE ADDITION AS MADE IS GROSSLY ERRONEO US, WHOLLY MISCONCEIVED AND TOTALLY UNWARRANTED AND MUST BE QU ASHED. 3.5. CIT(A) HELD THAT AO EXCEEDED HIS JURISDICTION IN GOING BEYOND WHAT THE ITAT HAD RESTORED TO HIM. ON MERITS, AFTER HEAR ING THE ASSESSEE, REPEATED THE ADDITIONS MADE BY CIT(A) IN FIRST ROUND BY FOLL OWING OBSERVATIONS: 5. I HAVE CONSIDERED THE WRITTEN SUBMISSION ON BEH ALF OF THE APPELLANT, THE FINDINGS OF THE ASSESSING OFFICER AN D THE FACTS ON RECORD. IT IS NOT IN DISPUTE THAT THE REVENUE DID N OT FILE ANY APPEAL AGAINST THE ORDER OF THE CIT(A) GRANTING REL IEF OF RS. 62,37,000/- AND RS. 2,22,19,840/- TO THE ASSESSEE I N ASSESSMENT YEARS 2000-01 AND 2001-02 RESPECTIVELY. IT IMPLIES THAT THE ORDER OF THE CIT(A) GIVING RELIEF OF RS. 62,37,000/ - AND RS. 2,22,19,840/- IN ASSESSMENT YEARS 2000-01 & 2001-02 RESPECTIVELY BECAME FINAL AND TO THAT EXTENT THE OR DER OF THE AO GOT MERGED WITH THE ORDER OF THE CIT(A), THEREBY OB LITERATING ANY POSSIBILITY OF INTERFERENCE BY THE AO WITH REGA RD TO THE SAID SUM. WHERE AN APPEAL IS PREFERRED AND THE SUBJECT M ATTER OF APPEAL, PARTICULARLY RAISED, IS THE SUBJECT-MATTER BEFORE THE APPELLATE AUTHORITY I.E. CIT(A), ITAT AND SO ON, TH EN THAT ORDER, IN MY OPINION, CANNOT BE THE SUBJECT MATTER OF AN O RDER OF REASSESSMENT &/OR RECTIFICATION BY THE ASSESSING OF FICER IN TERMS OF SECTION 147 &/OR 154 O OF REVISION BY THE COMMISSIONER IN TERMS OF SECTION 263 OF THE ACT. TH IS PRINCIPLE WAS ENUNCIATED BY THE SUPREME COURT IN THE CASE OF CIT V. AMRITLAL BHOGILAL & CO. (1958) 34 ITR 130 (SC). IN THE CASE OF AMRITLAL BHOGILAL & CO. (SUPRA), THE QUESTION WAS: WHERE THE APPEAL PREFERRED BY AN ASSESSEE AGAINST HIS ASSESSMENT HAD BEEN DECIDED BY THE APPELLATE ASSISTANT COMMISSIONER, DOES THE ORDER OF REGISTRATION ALONG WITH THE SUBSEQUENT ORDER OF ASSESSMENT MERGE IN THE APPELLATE ORDER. ITA 1869, 1870, 1879 & 1880/DEL/11 AY 2000-01 & 2001-02 9 THE SUPREME COURT HELD THAT THERE CAN BE NO DOUBT T HAT, IF AN APPEAL IS PROVIDED AGAINST AN ORDER PASSED BY A TRI BUNAL, THE DECISION OF THE APPELLATE AUTHORITY IS THE OPERATIV E DECISION IN LAW. IF THE APPELLATE AUTHORITY MODIFIES OR REVERSE S THE DECISION OF THE TRIBUNAL, IT IS OBVIOUS THAT IT IS THE APPEL LATE DECISION THAT IS EFFECTIVE AND CAN BE ENFORCED. IN LAW THE POSITI ON WOULD BE JUST THE SAME EVEN IF THE APPELLATE DECISION MERELY CONFIRMS THE DECISION OF THE TRIBUNAL. AS A RESULT OF THE CONFIR MATION OF THE DECISION OF THE TRIBUNAL BY THE APPELLATE AUTHORITY THE ORIGINAL DECISION MERGES IN THE APPELLATE DECISION AND IT IS THE APPELLATE DECISION ALONE WHICH SUBSISTS AND IS OPERATIVE AND CAPABLE OF ENFORCEMENT. THIS WAS ALSO REITERATED IN THE DECISI ON IN THE CASE OF JEEWANLAL (1929) LTD. V. ADDL. CIT (1977) 108 IT R 407 (CAL) AND THE DECISION IN THE CASE OF PREMCHAND SIT ANATH ROY V. ADDL. CIT (1977) 109 ITR 751 (CAL). THE ALLAHABAD H IGH COURT AND THE JURISDICTIONAL HIGH COURT OF DELHI RE ITERATED THE SAME PRINCIPLE IN THE CASE OF J.K. SYNTHETICS LTD. V. ADDL. CIT (1976) 105 ITR 344 (ALL) AND CIT V. EURASIA PUBLISH ING HOUSE (P) LTD. (1998) 232 ITR 381 (DELHI). 5.1. FROM THE DISCUSSION MADE ABOVE, IT CAN BE SAFE LY CONCLUDED THAT AS THE ORDER OF THE CIT(A) GRANTING RELIEF OF RS. 62,37,000/- AND RS. 2,22,19,840/- TO THE ASSESSEE I N ASSESSMENT YEARS 2000-01 & 2001-02 RESPECTIVELY WAS NOT CHALLE NGED BY THE DEPARTMENT BY WAY OF PREFERRING APPEAL BEFORE I TAT, THE ASSESSING OFFICER HAD NO JURISDICTION, IN THE FACTS AND CIRCUMSTANCES OF THIS CASE, TO PASS ANY ORDER ON TH IS ASPECT OF THE MATTER. THIS WAS PRECISELY BECAUSE OF THE FACT THE ORIGINAL ASSESSMENT ORDER DATED 29-03-2006 WAS THE SUBJECT M ATTER OF APPEAL BEFORE THE CIT(A) AND HAD SUBSEQUENTLY MERGE D IN THE ORDER OF THE CIT(A) DATED 16-11-2006. THEREFORE, I AM OF THE CONSIDERED VIEW THAT THE ASSESSING OFFICERS POWER TO AGAIN BRING THE AMOUNTS OF RS. 62,37,000/- AND RS. 2,22,1 9,840/- TO TAX IN ASSESSMENT YEARS 2000-01 & 2001-02 RESPECTIV ELY WAS NOT AVAILABLE TO HIM WHICH HAD ALREADY BEEN CONSIDE RED AND DECIDED BY THE CIT(A). 5.2. IT IS OBSERVED THAT THE ASSESSING OFFICER HAS SIMPLY REPEATED THE FINDINGS MADE IN THE ASSESSMENT ORDERS WHICH WERE PASSED UNDER SECTION 147/143(3) OF THE ACT ON 29-03 -2006 ITA 1869, 1870, 1879 & 1880/DEL/11 AY 2000-01 & 2001-02 10 WITHOUT PROPERLY APPRECIATING THE DIRECTIONS OF THE HONBLE ITAT VIDE THEIR ORDER DATED 23-03-3009. SINCE THE A SSESSING OFFICER HAS FOLLOWED THE FINDINGS MADE IN THE ASSES SMENT ORDER WHICH WAS PASSED UNDER SECTION 147/143(3) OF THE A CT ON 29- 03-2006, IT IS APPOSITE TO REFER TO THE FINDINGS OF MY PREDECESSOR-IN-OFFICE IN APPEAL NOS. 24 & 25/2006-0 7 VIDE HIS ORDER DATED 16.11.2006 (WHERE THE SUBJECT-MATTER OF THE APPEAL WAS THE ASSESSMENT ORDERS PASSED UNDER SECTION 147/ 143(3) OF THE ACT ON 29-03-2006). THE RELEVANT PORTION OF THE ORDER OF MY PREDECESSOR-IN-OFFICE IS EXTRACTED BELOW:- AS PER THE ABOVE-MENTIONED CHART, THE PEAK OF CASH RECEIVED BY M/S JINDAL ELECTRO-CASTING PVT. LTD., AS PER THE ENTRIES IN THE KACHHA ROKAR BOOK, SEIZED FROM JINDAL GROUP IN EXCESS TO CASH WITHDRAWAL FROM THE BANK ACCOUNT OF M/S JINDAL ELECTRO-CASTING PVT. LTD. WORKS OUT AT RS. 24,50,500/- IN THE ASSESSMENT YEAR ASSESSMENT YEARS 2000-01 AND RS. 20,51,346/- IN THE ASSESSMENT YEAR 2001-02. SAME ARE CONSIDERED AS UNEXPLAINED EXPENDITURE FROM UNDISCLOSED SOURCES OF INCOME UNDER SECTION 69C OF THE INCOME-TAX ACT. ACCORDINGLY, THE APPELLANT WILL GET A RELIEF O F RS. 62,37,000/- IN THE ASSESSMENT YEAR 2000-01 AND RS. 20,51,346/- IN THE ASSESSMENT YEAR 2001- 02. 5.3. IT IS CLEAR FROM THE PERUSAL OF THE REFRAMED A SSESSMENT ORDERS THAT NOT A SINGLE NEW FACT HAS BEEN BROUGHT ABOUT EITHER BY THE ASSESSING OFFICER OR BY THE APPELLANT WHILE REFRAMING THE ASSESSMENTS ON 25-11-2010 FOR THE PURPOSE OF GI VING EFFECT TO THE ORDER OF THE HONBLE ITAT; RATHER THE REFRAM ED ASSESSMENT ORDERS ARE SIMPLY THE REPETITION OF THE ASSESSMENT ORDERS WHICH WERE PASSED UNDER SECTION 147/143(3) OF THE ACT ON 29-03-2006. AS THE FACTS AND CIRCUMSTANCES OF TH E CASE REMAINED UNCHANGED, I FIND MYSELF IN AGREEMENT WITH THE DECISION OF MY PREDECESSOR-IN-OFFICE ON THE ISSUES CITED ABOVE CONFIRMING THE ADDITIONS OF RS. 24,50,500/- AND RS. 20,51,536/- IN ASSESSMENT YEARS 2000-01 & 2001-02 RESPECTIVELY. ITA 1869, 1870, 1879 & 1880/DEL/11 AY 2000-01 & 2001-02 11 AGGRIEVED, BOTH THE PARTIES ARE IN APPEAL BEFORE US . 4. AT THE OUT SET LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE FACTS OF THE CASE AND ADVERTED TO ITATS ORDER, SETTING ASID E. IT IS CONTENDED THAT AO WAS DIRECTED TO REFRAME ORDERS ON THE DIRECTIONS G IVEN BY ITAT. HAVING PASSED THE ORIGINAL ASSESSMENT ORDERS, AO HAD BECOM E FUNCTUS OFFICIO AND HIS NEW JURISDICTION AND POWER WAS LIMITED TO WHAT WAS SET ASIDE BY THE ITAT. IN ITAT ORDER IT IS CLEARLY MENTIONED THAT T HE MATTER IS SET ASIDE TO THE FILE OF AO TO DECIDE THE SAME AFRESH, WHICH SIM PLY MEANS THAT THE ISSUE AS APPEALED BY THE ASSESSEE IS SET ASIDE. FURTHER, THE ORDER OF AO STOOD MERGED IN THE ORDER OF CIT(A), WHICH IN TURN ALSO M ERGED IN THE ORDER OF ITAT. WHAT REMAINED BEFORE AO WAS ONLY THE ADDITIO NS AS APPEALED AGAINST BY ASSESSEE BEFORE ITAT. THERE IS NO INFIRMITY IN T HE ORDER OF CIT(A) WHO RELIED ON THE HONBLE SUPREME COURT JUDGMENT ON THE CASE OF CIT V. AMRITLAL BHOGILAL & CO. (SUPRA). THE DEPARTMENT HAS UNDISPUTEDLY ACCEPTED THE ORDER OF CIT(A) IN ORIGINAL PROCEEDINGS. THE AO CAN RACK UP THIS ISSUE ON TWO COUNTS: (I) HIS JURISDICTION WAS LIMITED TO THE EXTENT WHICH IS SET ASIDE BY THE ITAT; (II) THE DEPARTMENT HAS ALREADY TAKEN A POSITION BY ACCE PTING THE ORIGINAL ORDER OF CIT(A), GIVING PART RELIEF 4.1. IN VIEW THEREOF, REVENUES GROUNDS DESERVE TO BE DISMISSED. IT IS FURTHER PLEADED THAT REVENUE HAS NOT RAISED A SPECI FIC GROUND AGAINST CIT(A)S ORDER ON THIS LEGAL ISSUE I.E. HOLDING THA T THE JURISDICTION OF AO IN NEW PROCEEDINGS WAS LIMITED TO THE AMOUNTS APPEALED AGAINST BY THE ASSESSEE BEFORE ITAT I.E. 24,50,500/- AND RS. 20,51 ,536/-. IN THE ABSENCE OF ITA 1869, 1870, 1879 & 1880/DEL/11 AY 2000-01 & 2001-02 12 ANY SPECIFIC GROUND AGAINST THE ORDER OF CIT(A) ON THE JURISDICTIONAL ASPECT, THE REVENUES GROUND DESERVES TO BE DISMISSED AS NO T MAINTAINABLE. 5. LEARNED DR, ON THE OTHER HAND, CONTENDS THAT THE GROUNDS RAISED ARE NOT TO BE READ IN A RESTRICTED MANNER. THE FACT THA T REVENUE HAS AGITATED THE PARTICULAR DELETION OF ADDITION, IT WILL INCLUDE AL L THE ASPECTS WHILE ALLOWING THE PART RELIEF. ON THE SCOPE OF THE ITAT ORDER, LD . DR CONTENDS THAT THE ISSUE WAS OF ADDITION U/S 69C, WHICH CANNOT BE DEC IDED IN PART AND ITAT WHILE SETTING ASIDE IN PARA 3, LINE 4 & 5, HAS REFE RRED TO A FRESH ASSESSMENT BEING FRAMED AFTER GIVING ASSESSEE AN OPPORTUNITY O F BEING HEARD. 6. LEARNED COUNSEL FOR THE ASSESSEE, IN REJOINDER C ONTENDS THAT ANY JUDICIAL ORDER IS TO BE READ ON ITS ENTIRETY. PARTI ES CANNOT PICK AND CHOOSE PARTICULAR WORDS OR PHRASE TO DEFEAT THE ENTIRE ME ANING OF THE ORDER. WHAT WAS SET ASIDE WAS THE MATTER RAISED BY THE ASSESSEE IN APPEAL BEFORE ITAT. WHAT IS ALLOWED BY THE ORDER IS ALLOWING ASSESSEES APPEAL STATISTICALLY ON THE GROUNDS RAISED. CONSEQUENTLY, USE OF WORD SETTI NG ASIDE OF THE MATTER TO DECIDE THE SAME AFRESH AND ALLOW THE ASSESSEES APP EAL UNAMBIGUOUSLY MEANS THAT WHAT WAS SENT BACK TO AO WAS TO THE EXTE NT OF ORDER APPEALED AGAINST BEFORE ITAT BY ASSESSEES GROUND AS RAISED. 7. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH THE ENTIRE MATERIAL AVAILABLE ON RECORD. RELEVANT PORTION OF ITAT ORDER IS EXTRACTED ABOVE. IT CLEARLY EMERGES THAT IN FIRST ROUND REVENUE DID NOT CHALLENGE THE CIT(A)S ORDER AND ASSESSEE WAS BEFORE ITAT WAS ONLY THE AS SESSEES GRIEVANCE AGAINST THE PART RELIEF. IN THIS SITUATION, THE LD. DR PLEADS THAT ITAT ORDER VESTS THE AO WITH POWER TO REFRAME THE ASSESSMENT O F ENTIRE ISSUE WHEREAS ASSESSEE CONTENDS THAT ITAT SET ASIDE THE MATTER ON LY TO THE EXTENT WHAT WAS CHALLENGED BY ASSESSEE AND AO CANNOT ASSUME JURISDI CTION BEYOND THAT. IN OUR VIEW CIT(A) HAS DEALT WITH THE ISSUE IN EXTENSO AND RIGHTLY RELIED ON ITA 1869, 1870, 1879 & 1880/DEL/11 AY 2000-01 & 2001-02 13 VARIOUS CASE LAWS INCLUDING HONBLE SUPREME COURT J UDGMENT IN THE CASE OF CIT VS. AMRITLAL BHOGILAL & CO. (1958) 34 ITR 130 ( SC). WHAT WAS SET ASIDE BY THE ITAT WAS THE ADDITION TO THE EXTENT O F RS. 24,50,500/- FOR A.Y. 2000-01 AND RS 20,51,536/- FOR A.Y. 2001-02. THE AO THUS WAS VESTED WITH THE JURISDICTION TO THIS EXTENT AND NOT BEYOND THAT . THOUGH REVENUE HAS NOT RAISED SPECIFIC GROUND IN THIS MATTER, IN THE INTE REST OF SUBSTANTIAL JUSTICE, WE ARE INCLINED TO ACCEPT THE PLEA THAT GROUND AS RAIS ED WILL INCLUDE THIS ASPECT. CONSEQUENTLY, WE PROCEED TO DECIDE THE SAME. 7.1. IN OUR CONSIDERED OPINION, AO SHOULD NOT HAVE TRAVELED BEYOND THE DIRECTIONS OF ITAT, WHICH ARE CLEAR AND UNAMBIGUOUS TO REFRAME THE ADDITION TO THE EXTENT OF ASSESSEES APPEAL ONLY. D EPARTMENT HAS ALREADY TAKEN A DECISION BY ACCEPTING THE PART DELETION MAD E BY CIT(A) IN FIRST ROUND. AO HAS MERELY REPEATED HIS PREDECESSORS ORD ER. IN VIEW CIT(A) RIGHTLY HELD THAT THE AO SHOULD HAVE RESTRICTED THE REFRAMING OF ISSUE TO THE ABOVE EXTENT. WE UPHOLD HIS ORDERS. CONSEQUENTLY, W E DISMISS THE REVENUES APPEAL FOR BOTH THE YEARS. 8. COMING TO ASSESSEES APPEALS, LEARNED COUNSEL FO R THE ASSESSEE ADVERTED TO THE ORIGINAL ASSESSMENT ORDERS DATED 29 -3-2006, AVAILABLE AT PAGES 8 TO 14 OF THE PAPER BOOK. AT PAGE 4 OF THE ORDER, AO REFERS TO THE LETTER OF SHRI PRADEEP JINDAL, MD OF JINDAL ELECTRO CASTING P. LTD. (JECPL) DATED 8-3-2006, WHICH IS AS UNDER: (III) THAT I CONFIRM THAT M/S JINDAL ELECTRO-CASTI NG PVT. LTD. HAD SOLD MS INGOTS TO M/S JRM STEEL PVT. LTD. DURIN G THE CALENDAR YEAR 2000. COPY OF ACCOUNT AS PER BOOKS OF ACCOUNTS IS ATTACHED HEREWITH. PAYMENTS FOR MATERIAL AS PER COP Y OF ACCOUNT WERE RECEIVED THROUGH ACCOUNT PAYEE CHEQUES WHICH M/S JRM STEEL PVT. LTD USED TO DEPOSIT IN OUR CURRENT ACCOU NT MAINTAINED WITH OBC SAMALKHA. IT WAS PRACTICE THAT CASH WAS WI THDRAWN FROM THIS ACCOUNT FROM TIME TO TIME ON OUR BEHALF BY THE ITA 1869, 1870, 1879 & 1880/DEL/11 AY 2000-01 & 2001-02 14 EMPLOYEES OF JRM STEEL PVT. LTD. AND THEN THEY USED TO SEND THE WITHDRAWN CASH TO JINDAL ELECTRO CASTING AS PER THEIR CONVENIENCE. WHENEVER WE RECEIVED CASH, WE USED TO CREDIT THE NAME OF JAI BHARAT STEEL ROLLING MILLS /UTTAM JINDA L (ASSOCIATE OF JRM STEEL PVT. LTD.) IN OUR KACHI ROKAR. IT IS W ORTHWHILE TO NOTE THAT PREVIOUS NAME OF JRM STEEL PVT. LTD. WAS JAI BHARAT FOUNDRY AND ROLLING MILLS PVT. LTD. BUT WE USED TO ENTER ALL TRANSACTIONS RELATING TO JRM/ STEEL PVT. LTD. IN TH E NAME OF JAI BHARAT STEEL ROLLING MILLS IN OUR KACHHI ROKAR. (IV) TOTAL CASH WHICH WAS RECEIVED FROM JRM STEEL P VT. LTD DURING THE CALENDAR YEAR 2000 AND WAS ENTERED IN O UR KACHI ROAKAR IN THE NAME OF JAI BHARAT STEEL ROLLING MILL S/ UTTAM JINDAL (ASSOCIATE OF JRM STEEL PVT. LTD.) WAS RS. 3 ,00,47,686/- AND OUT OF WHICH RS. 2,11,56,000/- WAS ON ACCOUNT O F AMOUNT WITHDRAWN FROM OUR CURRENT ACCOUNT, SAMALAKHA AND R ECEIVED FROM TIME TO TIME THROUGH THE EMPLOYEES OF ABOVE SA ID COMPANY. DETAILS OF RS. 3,00,47,686/- AND RS. 2,11, 56,000/- ARE ATTACHED SEPARATELY. 8.1. IT IS PLEADED THAT MANAGING DIRECTOR OF JECPL HAS CONFIRMED THAT THE ASSESSEE PAID THE PURCHASE AMOUNTS THROUGH A/C PAYE E CHEQUES, WHICH WERE DEPOSITED IN JECPL A/C IN ORIENTAL BANK OF COMMERCE , SAMALKHA. IT IS PERTINENT TO MENTION THAT THE BANK ACCOUNT IN QUEST ION DOES NOT BELONG TO THE ASSESSEE BUT THE SAME BELONGS TO JECPL. SHRI PRADEE P JINDAL, MD FURTHER CONFIRMED THAT IT WAS THE PRACTICE OF THE EMPLOYEES OF THE ASSESSEE TO WITHDRAW THE CASH FROM THIS ACCOUNT FROM TIME TO TI ME AS PER THE CONVENIENCE OF JECPL. THE DEPARTMENT IS MISCONSTRUI NG THE WORDS PRACTICE OF EMPLOYEES AND AS PER THEIR CONVENIEN CE, WHICH IN FACT MEAN THE CONVENIENCE OF JECPL. THE DEPARTMENT, IN ORDER TO CONFIRM THE ADDITION IS RELYING ON INTERPRETATION OF THESE WORDS AS MEAN ING TO THE CONVENIENCE OF THE ASSESSEE. ITA 1869, 1870, 1879 & 1880/DEL/11 AY 2000-01 & 2001-02 15 8.2. LD. COUNSEL CONTENDS THAT ACCOUNT IN QUESTION I.E. ORIENTAL BANK OF COMMERCE, SAMALKHA, IS OWNED BY JECPL, WHICH IS CON FIRMED BY ITS MANAGING DIRECTOR, WITH A FURTHER CONFIRMATION THAT THE ASSESSEE MADE PAYMENTS THROUGH A/C PAYEE CHEQUES ONLY WHICH WERE DEPOSITED IN THIS ACCOUNT. BY NO STRETCH OF IMAGINATION, THIS BANK A/ C AND CORRESPONDING KACHHI ROKAR MAINTAINED BY JECPL IT CAN BE HELD TO BE ASSESSEES ACCOUNT OR ITS UNACCOUNTED PURCHASE. IT IS MATTER OF RECORD THAT ASSESSEE HAS NO AUTHORITY OVER THIS BANK A/C AND DOES NOT HAVE THE POWER TO OPERATE THIS BANK A/C. IN THIS EVENTUALITY, THE CASH WITHDRAWALS IN QUESTION CAN NOT COME BACK TO ASSESSEE. THESE WITHDRAWALS ARE BY JECPL ON LY FROM ITS OWN A/C, WHICH BY ARBITRARY INTERPRETATION ARE BEING ADDED IN THE HANDS OF THE ASSESSEE. THE ASSESSEE INSISTED ON CROSS-EXAMINATIO N OF SHRI PRADEEP JINDAL TO CLARIFY THIS FACT, WHICH HAS NEVER BEEN PROVIDED . 8.3. LD. COUNSEL THEN ADVERTED TO THE FOLLOWING OBS ERVATION OF AO: THE ABOVE DISCUSSION REVEALED THAT THE ASSESSEE FA ILED TO PROVE THE CO-RELATION IN THE TRANSACTIONS RECORDED BY THE ASSESSEE IN ITS BOOKS OF ACCOUNTS, PAYMENTS MADE BY WAY OF CHEQUES AND THE CASH PAYMENTS MADE ON DIFFERENT DATES. FURTHER, ASS ESSEE COULD NOT RECONCILE THE TRANSACTIONS MADE IN THEIR BOOKS OF ACCOUNTS IN SPITE OF REPEATED OPPORTUNITIES AND ALSO COULD N OT FURNISH ANY SATISFACTORY EXPLANATION FOR THE CASH TRANSACTIONS MADE DURING THE YEAR. 8.4. IT IS CONTENDED THAT THE AO ASKED FOR AN IMPO SSIBLE THING INASMUCH AS THE ASSESSEE CAN RECONCILE ITS BOOKS OF ACCOUNT OR THE BANK ACCOUNT OWNED BY IT. THE AO BY THIS ARBITRARY FINDING, WANTED THE ASSESSEE TO RECONCILE THE ACCOUNT OF JECPL AND THEIR CASH WITHDRAWALS FROM T HAT ACCOUNT. SINCE THE ACCOUNT HAS BEEN OWNED BY JECPL, THE ASSESSEE CANN OT RECONCILE IT. IT IS ABUNDANTLY CLEAR THAT JECPL OWNED THIS BANK ACCOUNT . IT IS NOT THE CASE OF ITA 1869, 1870, 1879 & 1880/DEL/11 AY 2000-01 & 2001-02 16 THE REVENUE THAT MR. JINDAL EXPRESSED ANY DOUBT OR LINKAGE WITH THE ASSESSEE. THE DEPARTMENT ACCEPTED THE FACT THAT THE A/C IS OWNED BY SHRI PRADEEP JINDAL AND ASSESSEE HAD NO AUTHORITY TO OPE RATE THE ACCOUNT IN ANY MANNER. SHRI PRADEEP JINDAL ACCEPTED THAT HIS EMPL OYEES WITHDREW THE CASH FROM THIS BANK ACCOUNT FROM TIME TO TIME. WITH TH ESE APPARENT FACTS, THE ADDITION CANNOT BE IMAGINED IN THE HANDS OF THE ASS ESSEE. IN THE WORST SCENARIO EVEN IF IT IS ASSUMED THAT THE CASH WAS WI THDRAWN BY ASSESSEE IN THAT CASE ALSO SEC. 69C WILL NOT BE APPLICABLE AS T HE WITHDRAWALS DO NOT AMOUNT TO ASSESSEES EXPENDITURE. 8.5. LD. COUNSEL FURTHER ADVERTED TO THE ORDER OF C IT(A) IN ORIGINAL PROCEEDINGS WHICH RECORDS THE SUBMISSIONS OF THE AS SESSEE BEFORE HIM. THE RELEVANT OBSERVATIONS ARE AS UNDER: 1. THE ALLEGATION HAS BEEN STATED TO BE THE RESULT OF THE SEIZED MATERIAL, FOUND FROM THE RESIDENCE OF SHRI P RADEEP JINDAL, MANAGING DIRECTOR AND MR. CHANDER BHAN SHAR MA, ACCOUNTANT OF M/S JINDAL ELECTRO CASTING PRIVATE LI MITED, (HEREINAFTER REFERRED TO COMPANY) DURING THE SEAR CH PROCEEDINGS CONDUCTED ON THEM, BY VIRTUE OF THE EXE CUTION OF A SEARCH WARRANT ON 30-11-2000. THE MATERIAL, IDENTIF IED AS ANNEXURE A1, A6 AND A12 WAS FOUND AND SEIZED. FRO M THE ANNEXURES, THE LD. DEPUTY COMMISSIONER OF INCOME TA X, EXTRACTED AN ARBITRARILY CONCLUDED THE ALLEGED CAS H PAYMENTS, PURPORTEDLY MADE BY THE APPELLANT, TO THE SUPPLIER, M/S JINDAL ELECTRO CASTING PRIVATE LIMITED, WERE OUT OF UNEXPL AINED SOURCES. IT IS BORNE OUT FROM THE RECORD THAT THE A PPELLANT HAD CONTINUOUSLY MADE PURCHASES OF RAW MATERIAL, FROM T HE ABOVE SUPPLIER DURING THE YEAR AND MADE THE PAYMENTS THER EON IN SETTLEMENT OF THE SUPPLIERS MADE, THROUGH THE CROSS ED CHEQUES DRAWN ON ITS BANK. THESE CHEQUES WERE DEPOSITED IN BANK ACCOUNT NUMBER 10548 WITH OBC SAMALKHA, BELONG TO JINDAL ELECTRO CASTING PRIVATE LIMITED, WHERE THE OPERATIO N OF THE BANK ACCOUNT WAS EXCLUSIVELY WITH MR. PRADEEP JINDA L, THE MANAGING DIRECTOR OF THE COMPANY. A CERTIFICATE TO THIS EFFECT FROM ORIENTAL BANK OF COMMERCE, IS ENCLOSED. ITA 1869, 1870, 1879 & 1880/DEL/11 AY 2000-01 & 2001-02 17 2. THE CASH WITHDRAWALS OUT OF THE SAID BANK ACCOUN T, MAINTAINED BY M/S JINDAL ELECTRO CASTING PRIVATE LI MITED, (JINDALS) WERE RECEIVED BY SHRI PRADEEP JINDAL, THE DIRECTOR OF THE SAID COMPANY, EITHER THROUGH THE EMPLOYEES OF M /S JINDAL OR AT TIMES, SOME EMPLOYEE OF THE APPELLANT. HOWEVE R, THE LD. DEPUTY COMMISSIONER OF INCOME TAX, CONCLUDED THE SA ID RECEIPTS WITHDRAWN FROM THE REGULARLY MAINTAINED BA NK ACCOUNT, AS THE PAYMENTS RECEIVED FROM THE APPELLANT, OUT OF THE ALLEGED UNEXPLAINED CASH, ALLEGEDLY AVAILABLE WITH THE APPE LLANT. WHILE DOING SO, THE PROVISIONS OF SECTION 69C OF THE INCO ME TAX ACT WERE INVOKED BY THE LD. DEPUTY COMMISSIONER OF INCO ME TAX, AS UNEXPLAINED EXPENDITURE, WITHOUT STATUTORILY EST ABLISHING THAT THE SAID EXPENDITURE HAD BEEN THE RESULT OF NO EXPL ANATION IN REGARD TO THE NATURE AND SOURCE THEREOF. NEEDLESS T O MENTION THAT THE REASONS, AS RECORDED, FOR INITIATING THE R EASSESSMENT PROCEEDINGS U/S 148, DO NOT MENTION OR INDICATE ANY SUCH ALLEGED UNEXPLAINED EXPENDITURE, UNDER WHICH THE LD . DEPUTY COMMISSIONER OF INCOME TAX, HAS MADE THE IMPUGNED ADDITION. IN THE FIRST PLACE, THE APPELLANT DENIES HAVING ANY INTEREST, TITLE OR RELATION WITH THE NOTATIONS IN T HE SAID KACHI ROKAR. EXCEPT THE NAME, NO OTHER EVIDENCE, MATERIA L OR DOCUMENT AHS BEEN INDICATED BY THE LD. DEPUTY COMMI SSIONER OF INCOME TAX,, TO ARRIVE AT THE CONCLUSIONS THAT T HE AMOUNTS PERTAIN OR BELONG TO THE APPELLANT IN ANY WAY. NOT ONLY THIS, DESPITE HAVING REQUESTED FOR CROSS EXAMINATION OF S AID MR. PRADEEP JINDAL, VIDE SUBMISSIONS DATED 17-03-2006, THE THEN DEPUTY COMMISSIONER OF INCOME TAX,, DID NOT ALLOW U S SUCH AN OPPORTUNITY. AS A LAST RESORT, AN AFFIDAVIT FROM TH E DIRECTOR OF THE APPELLANT, DEPOSING NO CONNECTION WITH THE PAYM ENTS, IS BEING ENCLOSED. THOUGH THIS AFFIDAVIT IS PURELY OF SUPPORTIVE IN NATURE, STILL CONSIDERING THIS TO BE ADDITIONAL EVI DENCE, IT IS REQUESTED TO BE ADMITTED UNDER RULE 46A OF THE INCO ME TAX RULES, AS THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE IN PRODUCING SUCH AFFIDAVIT DURING THE ASSESSMENT PROC EEDINGS. NO ADDITION IN FACT SHOULD HAVE BEEN MADE IN THE ASSES SMENT. 3. WITHOUT PREJUDICE TO THE FOREGOING, ON MERITS IT IS SUBMITTED THAT THE ADDITION OF RS. 86,87,000/- IN A SSESSMENT YEAR 2000-01 AND RS. 2,42,71,186/- IN ASSESSMENT YE AR 2001-02 ITA 1869, 1870, 1879 & 1880/DEL/11 AY 2000-01 & 2001-02 18 BEING THE ALLEGED UNEXPLAINED CASH PAYMENTS FROM AL LEGED UNDISCLOSED SOURCES, IS WITHOUT ANY VALID BASIS OR SUBSTANTIATED MATERIAL. NEITHER ANY MATERIAL NOR ANY EVIDENCE HAS BEEN CONFRONTED TO THE APPELLANT, ON THE BASIS OF WHICH THE AFORESAID ALLEGATIONS WERE MADE. 4. IN REGARD TO THE ALLEGED PAYMENTS FROM THE APPEL LANT, THE LD. DCIT HAS DRAWN ADVERSE INFERENCE ON ALLEGED STA TEMENT OF MR. PRADEEP JINDAL, AND CONCLUDED THAT THE ALLEGED PAYMENT FROM APPELLANT WERE OUT OF UNDISCLOSED SOURCES, WHI CH ENTAILED THE ADDITION OF THE IMPUGNED AMOUNT. THIS CONCLUSIO N HAD BEEN ARRIVED AT WITHOUT CONFRONTING THE ALLEGED STATEMEN T SO RECORDED, TO THE APPELLANT. THERE IS NO VALID MATER IAL TO ESTABLISH THAT APPELLANT HAD EVER SUCH PAYMENTS TO M/S JINDAL ELECTRO CASTING PRIVATE LIMITED. THE LEARNED DCIT SHOULD NO T HAVE PLACED RELIANCE ON THE UN-CONFRONTED STATEMENT RECE IVED, AT THE BACK OF THE APPELLANT, FOR MAKING THE IMPUGNED ADDI TION. THE APPELLANT, WAS NEVER CONFRONTED NOR ALLOWED ANY OPP ORTUNITY TO CROSS-EXAMINE SHRI PRADEEP JINDAL. IT IS THE SETTLE D PRINCIPLE OF LAW THAT THE DCIT SHOULD NOT HAVE UTILIZED THE TEST IMONY OF THE OTHER PERSON RECORDED AT THE BACK OF THE APPELLANT, WITHOUT GIVING APPELLANT AN OPPORTUNITY TO CROSS-EXAMINE HI M. IT IS SUBMITTED THAT SUCH TESTIMONY IS AN UNRELIABLE TEST IMONY AND THAT IN ANY CASE, IT COULD NOT HAVE BEEN USED AGAIN ST THE APPELLANT, WITHOUT CONFRONTING THE SAME FOR HIS CRO SS EXAMINATION. IF THE LEARNED DCIT DESIRED TO USE THE MATERIAL AGAINST THE APPELLANT, THE APPELLANT MUST BE INFORM ED OF THE EVIDENCE GATHERED AGAINST IT AND MUST BE GIVEN AN O PPORTUNITY OF EXPLAINING IT BY CONDUCTING THE CROSS-EXAMINATIO N. THE MINIMUM EFFORT, AS EXPECTED OF THE LD. DCIT WAS TO PROVIDE AN OPPORTUNITY TO THE APPELLANT TO CROSS EXAMINE THE W ITNESS, BEFORE FINALIZING THE ASSESSMENT, WHO HAD APPEARED IN RESPONSE TO THE COMMUNICATION, ADDRESSED DIRECTLY TO HIM BY THE LD. DCIT. 7. IT IS FURTHER SUBMITTED THAT THE LEARNED DCIT HA S NOT DISCHARGED THE BURDEN, WHICH LAY UPON HIM, TO ESTAB LISH THAT THE APPARENT STATE OF AFFAIRS WAS NOT THE REAL ONE. IN THE FACTS OF THE INSTANT CASE, APART FROM CIRCUMSTANCES, WHICH BY TH EMSELVES ITA 1869, 1870, 1879 & 1880/DEL/11 AY 2000-01 & 2001-02 19 COULD BE SAID TO BE NEUTRAL, THERE WAS NO OTHER MAT ERIAL TO DOUBT THE STATE OF AFFAIRS AND TO HOLD THAT THE APPARENT IS NOT REAL. THE CIRCUMSTANCES TAKEN SINGLY OR CUMULATIVELY DONT JU STIFY THE CONCLUSION, AS ARRIVED BY THE LD. DCIT. .. 9. THE OBSERVATION OF THE LD. DEPUTY COMMISSIONER O F INCOME TAX, IN THE ORDER OF REASSESSMENT THAT THE A PPELLANT WAS MAINTAINING THE BANK ACCOUNT OF M/S JINDAL ELECTRO CASTING PRIVATE LIMITED, IS WHOLLY INCORRECT AND DEVOID OF FACTUAL SUBSTRATUM. THE AID ACCOUNT WAS NOT ALLOWED TO BE O PERATED UPON, BY ANY OTHER PERSON, EXCEPT MR. PRADEEP JINDA L, THE MANAGING DIRECTOR OF THE JINDAL GROUP. THE FACT, WH ICH HAS NOT BEEN APPRECIATED BY THE LD. ASSESSING OFFICER IS TH AT IT WAS THE MONEY BELONGING TO M/S JINDAL ELECTRO CASTING PRIVA TE LIMITED, ITSELF WHICH WAS WITHDRAWN FROM THEIR OWN BANK ACCO UNT. THERE WAS NO ADDITIONAL MONEY, OVER AND ABOVE THE WITHDRA WALS, WHICH WAS UTILIZED FOR REMITTING TO JINDALS. THIS FACT IS ALSO BORNE OUT FROM THE STATEMENT RECORDED, ON OATH, OF MR. PRADEEP JINDAL, THE MANAGING DIRECTOR OF THE RECEIVING COMP ANY, WHEREIN HE HAD CATEGORICALLY STATED THE FACTUAL STA TE OF AFFAIRS, INCLUDING THE WITHDRAWALS FROM THE BANK ACCOUNT OF M/S JINDAL ELECTRO CASTING PRIVATE LIMITED AND RECEIPT OF THE SAME EITHER THROUGH THE EMPLOYEES OF JINDALS OR SOME PERSONNEL OF JRM STEEL PRIVATE LIMITED. . 16. WITHOUT PREJUDICE, IT IS SUBMITTED THOUGH IN TH E ORDER OF REASSESSMENT THE MONTH WISE PAYMENTS RECKONING FROM JANUARY 2000 TO MARCH 2000 HAVE BEEN INDICATED BUT THE LD. DEPUTY COMMISSIONER OF INCOME TAX, HAD FAILED TO DETAIL TH E DATE WISE CASH PAYMENTS, ALLEGEDLY MADE BY THE APPELLANT TO M /S JINDAL ELECTRO CASTING PRIVATE LIMITED. THE AGGREGATED QUA NTUM OF THE ALLEGED CASH PAYMENTS, THOUGH CALCULATED AT RS. 86, 87,000/- IN ASSESSMENT YEAR 2000-01 AND OF RS. 2,42,71,186/- IN ASSESSMENT YEAR 2001-02 BUT NO DATES FOR THE RESPECTIVE PAYMEN TS HAVE AT ALL BEEN INDICATED TO THE RESPECTIVE PAYMENTS HAVE AT ALL BEEN INDICATED TO EXPLAIN THE SOURCE. IN ABSENCE OF THE DATES, IT SHALL NOT BE POSSIBLE TO CLARIFY THE NATURE AND SOURCES. THE ADDITION MADE IS OTHERWISE WHOLLY UNJUSTIFIED BECAUSE EVEN I F PRESUMING BUT NOT ADMITTING THAT THE APPELLANT DID INCUR SOME EXPENDITURE, ITA 1869, 1870, 1879 & 1880/DEL/11 AY 2000-01 & 2001-02 20 AGAINST THE ALLEGED SUPPLIES RECEIVED, THE EQUIVALE NT DEBIT IN THE PROFIT AND LOSS ACCOUNT WILL NEUTRALIZE EACH OTHER AND NO ADDITION COULD BE UPHELD, EVEN IN THIS GROUND. YET ANOTHER IMPORTANT FACTOR FOR YOUR CONSIDERATION IS THAT NO CORRESPONDING DOCUMENT, MATERIAL OR EVIDENCE HAS BEEN INDICATED T O CORROBORATE THE ALLEGATIONS LEVELED AGAINST THE APP ELLANT. THE LD. DEPUTY COMMISSIONER OF INCOME TAX, WHILE MAKING THE IMPUGNED ADDITION, HA AT ALL INDICATED NO SUCH REFE RENCE OR RELIANCE. 8.6. LD. COUNSEL CONTENDS THAT IN THE FRESH PROCEED INGS ASSESSEE INSISTED FOR CROSS EXAMINATION OF SHRI PRADEEP JINDAL. INSTE AD A REPLY OF SHRI PRADEEP JINDAL DATED 12-10-2010 WAS FURNISHED WHICH READS T HE SAME POSITION: (III) THAT I CONFIRM THAT M/S JINDAL ELECTRO-CASTI NG PVT. LTD. HAD SOLD MS INGOTS TO M/S JRM STEEL PVT. LTD. DURIN G THE CALENDAR YEAR 2000. COPY OF ACCOUNT AS PER BOOKS OF ACCOUNTS IS ATTACHED HEREWITH. PAYMENTS FOR MATERIAL AS PER COP Y OF ACCOUNT WERE RECEIVED THROUGH ACCOUNT PAYEE CHEQUES WHICH M/S JRM STEEL PVT. LTD USED TO DEPOSIT IN OUR CURRENT ACCOU NT MAINTAINED WITH OBC SAMALKHA. IT WAS PRACTICE THAT CASH WAS WI THDRAWN FROM THIS ACCOUNT FROM TIME TO TIME ON OUR BEHALF BY THE EMPLOYEES OF JRM STEEL PVT. LTD. AND THEN THEY USED TO SEND THE WITHDRAWN CASH TO JINDAL ELECTRO CASTING AS PER THEIR CONVENIENCE. WHENEVER WE RECEIVED CASH, WE USED TO CREDIT THE NAME OF JAI BHARAT STEEL ROLLING MILLS /UTTAM JINDA L (ASSOCIATE OF JRM STEEL PVT. LTD.) IN OUR KACHI ROKAR. IT IS W ORTHWHILE TO NOTE THAT PREVIOUS NAME OF JRM STEEL PVT. LTD. WAS JAI BHARAT FOUNDRY AND ROLLING MILLS PVT. LTD. BUT WE USED TO ENTER ALL TRANSACTIONS RELATING TO JRM/ STEEL PVT. LTD. IN TH E NAME OF JAI BHARAT STEEL ROLLING MILLS IN OUR KACHHI ROKAR. (IV) TOTAL CASH WHICH WAS RECEIVED FROM JRM STEEL P VT. LTD DURING THE CALENDAR YEAR 2000 AND WAS ENTERED IN O UR KACHI ROAKAR IN THE NAME OF JAI BHARAT STEEL ROLLING MILL S/ UTTAM JINDAL (ASSOCIATE OF JRM STEEL PVT. LTD.) WAS RS. 3 ,00,47,686/- AND OUT OF WHICH RS. 2,11,56,000/- WAS ON ACCOUNT O F AMOUNT WITHDRAWN FROM OUR CURRENT ACCOUNT AT SAMALAKHA AN D AFTER ITA 1869, 1870, 1879 & 1880/DEL/11 AY 2000-01 & 2001-02 21 RECEIPT OF CASH THE SAME WAS ENTERED WITH OUR KACHI ROKAR ON VARIOUS DATES. 8.7. IT IS CONTENDED THAT THOUGH THE MATTER WAS SET ASIDE TO ALLOW THE CROSS- EXAMINATION OF SHRI PRADEEP JINDAL, INSTEAD OF PROD UCING HIM A LETTER DATED 12-10-2010 WAS PRODUCED. THUS, IN FACT ITAT DIRECTI ONS OF ALLOWING THE CROSS-EXAMINATION ALSO REMAIN UNCOMPLIED WITH. EVE N IF THIS STATEMENT OF MR. JINDAL IS CORRECTLY CONSIDERED, IT REFLECTS FO LLOWING: (1) ASSESSEE USED TO MAKE A/C PAYEE CHEQUE PAYMENT TO J ECPL WHICH WAS DEPOSITED IN JECPL A/C WITH ORIENTAL BANK OF CO MMERCE, SAMALKHA. (2) IT WAS THE PRACTICE TO WITHDRAW THE CASH FROM THIS ACCOUNT FROM TIME TO TIME FOR GIVING TO JRM STEEL PVT. LTD. AND THEN ASSESSEE USED TO SEND THE CASH IN INSTALMENTS TO JECPL AS PER THEIR CONVENIENCE. 8.8. IN THAT EVENTUALITY ALSO, THERE IS NO ALLE GATION THAT AMOUNT MORE THAN THE EXPENDITURE DEBITED BY ASSESSEE IS INCURRED. TH IS IS A STATEMENT OF PRADEEP JINDAL AND CONFUSION, IF ANY, IS TO BE CLAR IFIED BY HIM AND UNFORTUNATELY, THIS RESPONSIBILITY IS BEING FASTENE D ON THE ASSESSEE IN AN ARBITRARY MANNER. THE KACHHI ROKAR IS WRITTEN BY JE CPL AND MAINTAINED BY IT. THE ASSESSEE HAS NO CONTROL OR INVOLVEMENT IN M AINTAINING THIS KACHHI ROKAR. IN THESE CIRCUMSTANCES, THE RESPONSIBILITY T O EXPLAIN THE KACHHI ROKAR LIES WITH THE JECPL AND NOT THE ASSESSEE. IT IS PLEADED THAT THE ADDITION IS WHOLLY UNJUSTIFIED AND GROSSLY MISCONCE IVED. 9. LD. DR, ON THE OTHER HAND, CONTENDS THAT THE PRE MISES OF SHRI PRADEEP JINDAL, MD OF JECPL GROUP WERE SEARCHED. THE KACHHI ROKAR WAS FOUND THERE. ACCORDING TO THE DEPARTMENT THE CASE OF THE REVENUE IS THAT TRANSACTION BETWEEN JECPL AND ASSESSEE WERE ACTUALLY ON CASH BA SIS. HOWEVER, THEY ITA 1869, 1870, 1879 & 1880/DEL/11 AY 2000-01 & 2001-02 22 WERE GIVEN A FACADE OF BANK ACCOUNT AND THE STATEME NT OF SHRI PRADEEP JINDAL WHICH REFERS TO THEIR EMPLOYEES, REFLECTS THE ASSESSEE AND NOT SHRI PRADEEP JINDAL. THEREFORE, THE ADDITION HAS BEEN RI GHTLY RETAINED BY CIT(A). 10. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUG H THE ENTIRE MATERIAL AVAILABLE ON RECORD. FOLLOWING FACTS CLEARLY EMERGE FROM THE RECORD: (1) KACHHI ROKAR WAS FOUND DURING THE COURSE OF SEARCH OF JECPL. THE HANDWRITING THEREIN AND THE OWNERSHIP THEREOF HAS B EEN OWNED BY JECPL AND ASSESSEE HAD NO CONTROL OVER IT. (2) THE ALLEGED BANK ACCOUNT I.E. ORIENTAL BANK OF COMM ERCE, SAMALKHA IS OWNED AND OPERATED BY JECPL THROUGH SHRI PRADEEP JINDAL, WHICH IS ACCEPTED BY SHRI PRADEEP JINDAL IN ORIGINAL PROC EEDINGS AS WELL AS FRESH PROCEEDINGS. (3) CROSS-EXAMINATION OF SHRI PRADEEP JINDAL HAS NOT BE EN GIVEN TO THE ASSESSEE, WHICH WAS DIRECTED BY THE ITAT. INSTEAD, A LETTER OF SHRI PRADEEP JINDAL WAS PROCURED BY THE AO. (4) BE THAT AS IT MAY, THE NEW LETTER DATED 12-10-2010 OBTAINED FROM PRADEEP JINDAL DOES NOT THROW ANY LIGHT ON NEW FACT S AND REITERATES WHAT HE STATED IN THE ORIGINAL PROCEEDINGS. (5) THE WHOLE CASE REVOLVES ROUND THE INTERPRETATION OF ONE OR TWO SENTENCES USED BY SHRI PRADEEP JINDAL IN THE STATEM ENT IN HIS SEARCH PROCEEDINGS, POINTING OUT IN PARTICULAR IT WAS PRACTICE THAT CASH WAS WITHDRAWN FROM THIS ACCOUNT FROM TIME TO TIME ON OUR BEHALF BY THE EMPLOYEES OF JRM STEEL PVT. LTD. AND THEN THEY USED TO SEND THE WITHDRAWN CASH TO JINDAL ELECTRO CASTING A S PER THEIR CONVENIENCE. 10.1. THE INFORMATION EMANATES FROM A THIRD PARTY, NAMELY, JECPL. THE IMPUGNED BANK ACCOUNT AND THE KACHHI ROKAR IS OWNED , OPERATED AND ITA 1869, 1870, 1879 & 1880/DEL/11 AY 2000-01 & 2001-02 23 MAINTAINED BY JECPL. THE THIRD PARTY IN FACTUAL TER MS ACCEPTED THAT THE ASSESSEE USED TO MAKE THE PAYMENT OF PURCHASES BY W AY OF A/C PAYEE CHEQUES, WHICH ARE DEPOSITED IN JECPL A/C IN CLEAR AND UNAMBIGUOUS TERMS. IN OUR CONSIDERED OPINION, LOOKING AT THE ENTIRETY OF FACTS AND CIRCUMSTANCES AND IN VIEW OF ABOVE OBSERVATIONS, THE ADDITION ON THE BASIS OF SUCH A THIRD PARTYS EVIDENCE CANNOT BE MADE IN THE HANDS OF THE ASSESSEE. THE BANK A/C IS OWNED AND OPERATED BY JECPL, ASSESSEE CLEARLY HA S NO ROLE OR INVOLVEMENT IN OPERATION OF THIS BANK A/C. IN OUR C ONSIDERED OPINION, BY INTERPRETING 2 OR 3 SENTENCES OF THIRD PARTYS STAT EMENT, WHICH IS NOT ALLOWED FOR CROSS-EXAMINATION BY THE ASSESSEE, CANNOT BE MA DE A BASIS TO MAKE THESE ADDITIONS IN THE HANDS OF THE ASSESSEE U/S 69C AS U NEXPLAINED PURCHASES. 10.2. IN VIEW OF THE FOREGOINGS, WE DELETE THE ADDI TIONS MADE BY THE AO IN A.Y. 2000-01 & 2001-02. ASSESSEES APPEALS ARE ALLO WED. 11. IN THE RESULT, REVENUES APPEALS ARE DISMISSED AND THAT OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 31-10-2011. SD/- SD/- (K.D. RANJAN ) ( R.P. TOLANI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 31-10-2011. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR ITA 1869, 1870, 1879 & 1880/DEL/11 AY 2000-01 & 2001-02 24