Shrenik Shantilal Dhadiwal, Ahmednagar V. Income-tax Officer,

ITA 1909/PUN/2013

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 2240 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 11 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 06-10-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 28-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B C MALAKAR
• Keywords: Unexplained expenditure; Income from undisclosed sources; Search and seizure; Principle of natural justice; Opportunity of cross examination
• Section: 69C; 143(3); 142(1); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI PRADIP KUMAR KEDIA , AM . / ITA NO. 1909 /PN/201 3 / ASSESSMENT YEAR : 200 9 - 10 SHRI SHRENIK SHANTILAL DHADIWAL, KHATOD MARKET, SHIVAJI ROAD, SHRIRAMPUR . / APPELLANT PAN: ABIPD0346H VS. THE TAX RECOVERY OFFICER (IT), AHMEDNAGAR RANGE, AHMEDNAGAR . / RESPONDENT / APPELLANT BY : S HRI NIKHIL PATHAK / RESPONDENT BY : SHRI B.C. MALAKAR / DATE OF HEARING : 06 . 1 0.2015 / DATE OF PRONOUNCEMENT: 08 . 1 0. 2015 / ORDER PER SUSHMA CHOWLA, JM: THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF CIT (A) - I T/TP , PUNE , DATED 19 . 08 .201 3 RELATING TO ASSESSMENT YEAR 2009 - 10 AGAINST ORDER PASSED U NDER SECTION 143(3) OF THE INCOME - TAX ACT, 1961 (IN SHO RT THE ACT) . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. LOWER AUTHORITIES HAVE ERRED ON MAKING ADDITIONS OF RS. 24,54,140/ - MERELY ON THE BASIS OF STATEMENT GIVEN AT THE TIME OF SURVEY. OPPORTUNITY OF CROSS EXAMINATION WAS NOT GIVE N AT THE TIME OF ASSESSMENT WHICH IS AGAINST THE LAW OF NATURAL JUSTICE. SO ADDITIONS MAY PLEASE BE DELETED. 2. CIT(A) HAS ERRED IN CONFIRMING THE ORDER OF A.O. APPELLANT PRAYS FOR THE DELETION OF THE SAME. 3. APPELLANT PRAYS FOR JUST AND EQUITABLE REL IEF. ITA NO. 1909 /PN/201 3 SHRI SHRENIK SHANTILAL DHADIWAL 2 4. APPELLANT PRAYS FOR DELETION OF INTEREST CHARGED U/S 234, SAME MAY BE DELETED. 5. APPELLANT PRAYS TO ADD, ALTER, AMEND, MODIFY AND / OR WITHDRAW THE GROUND/S OF APPEAL AS CIRCUMSTANCES MAY DEMAND. 3. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE AT THE OUTSET POINTED OUT THAT THE ISSUE RAISED IN THE PRESENT APPEAL IS SQUARELY COVERED BY THE ORDER OF TRIBUNAL IN M/S. BALAJI AGENCIES VS. ITO IN ITA NO.353/PN/2014 RELATING TO ASSESSMENT YEAR 2009 - 10 , ORDER DATED 20.02.2015, WHEREIN, SIMILAR ISSUE OF ADDITION MADE ON ACCOUNT OF SEARCH IN THE CASE OF MALPANI GROUP, WAS MADE IN THE HANDS OF DEALER S OF GAI CHAP ZARDA. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE PLACED RELIANCE ON THE ORDERS OF AUTHORITIES BELOW. 5. WE HAVE HEAR D THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ONLY ISSUE RAISED IN THE PRESENT APPEAL IS IN RELATION TO THE ADDITION MADE ON ACCOUNT OF UNACCOUNTED CASH PAYMENT. THE CASE OF THE REVENUE WAS THAT THE ASSESSEE HAD OF UNACCOUNTED CASH PAYMENT. THE CASE OF THE REVENUE WAS THAT THE ASSESSEE HAD MADE UNACCOUNTED PAYMENTS FOR THE PU RCHASE OF GAI CHAP ZARDA FROM M/S. SARGAM RETAILERS PVT. LTD. THE BASIS FOR THE SAID ADDITION WAS THE STATEMENT RECORDED OF ONE SHRI MALPANI. THE CASE OF THE ASSESSEE WAS THAT IT HAD NOT MADE ANY SUCH PAYMENTS TO M/S. SARGAM RETAILERS PVT. LTD. AND FURTH ER, THE RELIANCE ON THE STATEMENT OF SHRI MALPANI WITHOUT GIVING ANY OPPORTUNITY OF CROSS - EXAMINATION, WAS BAD IN LAW. 6. WE FIND THAT AN IDENTICAL ISSUE AROSE BEFORE THE PUNE BENCH OF THE TRIBUNAL IN M/S. BALAJI AGENCIES VS. ITO IN ITA NO.353/PN/2014 (S UPRA) , WHEREIN THE TRIBUNAL IN TURN, REL IED ON THE DECISION IN 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 . T HE TRIBUNAL VIDE ORDER OF E VEN DATE IN ITO VS. SHRI DINESH SATYANARAYAN TAWANI (SUPRA) , HELD AS UNDER: - 7. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE WAS A DEALER OF GAI CHAP ZARDA, TEA AND OTHER GOODS OF SARGAM RETAILERS PVT. LTD., MALPANI TEAL CORPORATION AND MALPANI PRODU CTS, SANGAMNER. 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 PUNE. ON THE BASIS OF THE SAID INFORMATION, THE CA SE OF THE ITA NO. 1909 /PN/201 3 SHRI SHRENIK SHANTILAL DHADIWAL 3 ASSESSEE WAS SELECTED FOR 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 SEIZED FROM VARIOUS PREMISES OF THE SAID GROUP. THE STATEMENT OF 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 RETAILERS PVT. LTD., HAD COLLECT ED CASH FROM THE DEALERS OF GAI CHAP ZARDA ON 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 MADE 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 ASSESSEE FOR THE INSTANT ASSESSMENT YEAR ON ACCOUNT OF NON - FULFILLMENT OF TARGET OF SALES OF GAI CHAP ZARDA. THE ASSESSEE, IN REPLY, STATED THAT THE ASSESSEE HAD NOT GIVEN ANY CASH PAYMENT OF RS.16,51,445/ - OTHER THAN THE PAYMENT RECORDED IN THE BOOKS OF ACCOUNT TOWARDS PURCHASES MADE FROM M/S. SARGAM RETAILERS PVT. LTD. THE A.O. REJECTED THE REPLY OF THE ASSESSEE AND OBSERVED THAT SINCE THE PAYMENTS WERE RECEIVED IN CASH, THE SAME WOULD NOT BE RECORDED IN THE BOOKS OF ACCOUNT. IN VIEW OF THE STATEMENT OF SHRI RAJESH OMKARNATH MALPANI, 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 AMOUNT OF RS.16,51,445/ - WAS ADDE D TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED EXPENDITURE WITHIN THE MEANING 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 ACCOUNT OF REJECTED GOODS. IT WAS ADMITTED BY HIM THAT THE SAME AMOUNT WAS COLLECTED FROM THE DEALERS AGAINST THE SAID REJECTION. THE AMOUNT COLLECTED FROM THE ASSESSEE ON ACCOUNT OF REJECTED GOODS FOR THE YEAR UNDER APPEAL WAS RS.10,80,207/ - . THE ASSESSEE EXPLAI NED 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 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 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 FOUND BETWEEN THE SAID CONCERN AND THE DEALERS TOWARDS ALLEGED PAYMENT TO BE MADE FOR NON - FULFILLMENT OF TARGETS BY THE DEALERS. ENTIRE CONTENTION RAISED BY THE ASSESSEE WAS WHERE THE CONCERNED PERSON HAD ADMITTED THE TRANSACTION FOUND IN THE SEIZED MATERIAL AND HAD OFFERED THE SAME TO TAX AND PAID DUE TAXES, THEN THERE WAS NO QUESTION OF A DDITION IN RESPECT OF SAID TRANSACTION IN THE HANDS OF THE THIRD PARTY. THE CIT(A) FORWARDED THE SUBMISSIONS OF THE ASSESSEE TO THE A.O. WHO SUBMITTED THE REMAND REPORT. THE ASSESSEE FILED COUNTER COMMENTS AND STATED 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 COURSE OF SEARCH. THE ASSESSEE ALSO ASKED FOR CROSS EXAMINATION OF SHRI RAJESH O. MALPANI. THE A.O., IN THE REMAND PROCEEDINGS, PROVIDED THE COPY OF THE STATEMENT AND OTHER PAPERS TO THE ASSESSEE 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 STATEMENT IS REPRODUCED AT PAGE - 9 AND 10 OF THE APPELLATE ORDER. THE ASSESSING OFFIC ER, 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 REPLY TO QUESTION NO.10, HE HAD STATED THAT CASH WAS COLLECTED BY THEIR FIELD STAFF FRO M BEED AREA. THE A.O. FURTHER STATED THAT SHRI RAJESH O. MALPANI, HAD ACCEPTED THAT THEY HAVE RECORDED THE BUSINESS TRANSACTION MADE WITH THE ASSESSEE IN THEIR BOOKS OF ACCOUNT AND THE AMOUNTS NOT RECORDED IN THE BOOKS OF ACCOUNT HAVE BEEN OFFERED TO TAX A S INCOME. THE LD. CIT(A), VIDE PARA - 14.2, OBSERVED THAT IN VIEW OF THE ABOVE SPECIFIC REPLIES GIVEN BY SHRI RAJESH O. ITA NO. 1909 /PN/201 3 SHRI SHRENIK SHANTILAL DHADIWAL 4 MALPANI, IT CANOT BE 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 HA S 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 MORE. ANS. I AM SUBMITTING THE COPY OF ASSESSMENT ORDER PASSED IN THE CASE OF ONE OF OUR DEALER MR. OMPRAKASH JAGANNATH LADD HA, PROP. TULSI SALES CORPORATION, SOLAPUR, WHERE THE ASSESSMENT IS PASSED BY CENTRAL CIRCLE, PUNE WITHOUT MAKING ANY ADDITION ON ACCOUNT OF OUR DISCLOSURE. THE A.O. IN HIS REPORT HAS NOT COMMENTED ON THE REPLY GIVEN BY RAJESH O. MALPANI, TO THE ABOVE Q.N O.17. THE CIT(A) IN VIEW THEREOF DELETED THE ADDITION AGAINST WHICH THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 9. WE FIND THAT SIMILAR ISSUE OF CASH PREMIUM IN RESPECT OF GAI CHAP ZARDA AROSE BEFORE THE TRIBUNAL IN THE CASE OF ITO V/S M/S. PARAKH A GENCY IN ITA NO.1112/PN/2013, RELATING TO ASSESSMENT YEAR 2009 - 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 AND SEIZURE ACTION U/S.13 2 OF THE I.T. ACT WAS CARRIED ON IN THE CASES OF MALPANI GROUP OF SANGAMNER ON 06 - 10 - 2009. DURING THE 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 STATEMENT, THE DEPONENT HAS STATED TH AT THE MALPANI GROUP HAS COLLECTED 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. LTD. 2009 - 10 WHICH IS UNACCOUNTED INCOME OF SARGAM RETAIL PVT. LTD. FURTHER, IN THE STATEMENT RECORDED U/S.1 32(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 CO LLECTED (RS) QTY.(BAGS) UNACCOUN TED CASH COLLECTED (RS.) PARAKH AGENCIES NANDGAON PAN AAFFP6717L 8478 777190 11190 1103915/ - 1881105/ - IN VIEW OF THE ABOVE INFORMATION THE AO HAS ASKED THE ASSESSEE TO EXPLAIN AS TO WHETHER THE ABOVE AMOUNT OF RS.7,77,190/ - HAS BEEN REFLECTED IN THE BOOKS OF ACCOUNT AND TO EXPLAIN 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 PAYM ENT 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 RETAILS 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, RELYING ON THE ABOVE DECISION OBSERVED THAT UNLIKE CRIMINAL PROCEEDI NGS, THE CHARGE IS ITA NO. 1909 /PN/201 3 SHRI SHRENIK SHANTILAL DHADIWAL 5 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 H AVE DIRECT EVIDENCE TO PROVE THE SAID TRANSACTIONS. THE AO HAS TO ASSESS THE TAX LIABILITY CONSIDERING THE MATERIAL AVAILABLE ON RECORD, SURROUNDING CIRCUMSTANCES, PREPONDERANCE OF PROBABILITIES AND EVIDENCE AVAILABLE ON RECORD. 3.1 THE AO FURTHER NOTICE D THAT DURING THE IMPUGNED YEAR THE ASSESSEE HAS TRANSACTED 8478 BAGS WHEREAS THE AMOUNT OF RS.7,77,190/ - HAS BEEN PAID TO S.R.P.L. TOWARDS PREMIUM 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 RETAINED WITH HIMSELF AS UNACCOUNTED INCOME. THE ASSESSEE DENIED ANY SUCH COLLECTION AND REPLIED TO THE ASSESSING OFFICER ACCORDINGLY. THE ASSESSING OFFICER, HOWEVER, REJECTED THE REPLY OF THE ASSESSEE 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 THE LD. DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL ON RECORD. WE FIND THE ASSESSING OFFICER, BASED ON THE STATEMENT RECORDED U/S.132(4) OF SHRI RAJESH O. MALPAN I, DIRECTOR OF SARGAM RETAILS 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 DEALERS. WE FIND THE LD .CIT(A) CHARGING LESS PRICE OF THE PRODUCT TO THE DEALERS. WE FIND THE LD .CIT(A) DELETED THE ADDITION MADE BY THE ASSESSING OFFICER ON THE GROUND THAT THE ASSESSING OFFICER HAS NOT ALLOWED CROSS 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 EXAMINATION IS GIVEN TO THE ASSESSEE. THE LD. CIT(A) HAS FURTHER OBSERVED THAT EVEN IF IT IS ACCEPTED THAT ASSES SEE 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 CONTRARY MATERIAL BROUGHT TO OUR NOTICE BY THE LD. DEPARTMENTAL REPRESENTATIVE. THEREFORE, THE ADDITION OF RS.7,77,190/ - DELETED BY THE LD. CIT(A) IN OUR OPINION IS JUSTIFIED AND THE GROU ND OF APPEAL NO.1 BY THE REVENUE IS DISMISSED. 7.1 SO FAR AS THE ADDITION OF RS.2,86,193/ - IS CONCERNED, WE FIND THE ASSESSING OFFICER MADE THE ADDITION ON THE BASIS OF DIFFERENCE BETWEEN THE TOTAL BAGS TRANSACTED AND THE BAGS IN RESPECT OF WHICH THE ADDI TION 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 SUSPICION. 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. ITA NO. 1909 /PN/201 3 SHRI SHRENIK SHANTILAL DHADIWAL 6 ACCORDINGLY, THE S AME 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 CONCERNED, WE FIND FROM THE REMAND REPORT OF THE ASSESSING OFFICER DATED 05 - 03 - 2013 THAT HE HAS ACCEPTED THAT NO CROSS EXAMINATION O F SHRI RAJESH O. MALPANI WAS ALLOWED TO THE ASSESSEE DURING ASSESSMENT PROCEEDINGS. THEREFORE, GROUND OF APPEAL NO.3 BY THE REVENUE IS DISMISSED. 11. THE FACTS AND ISSUE ARISING IN THE PRESENT APPEAL ARE IDENTICAL TO THE FACTS AND ISSUE BEFORE THE TRIB UNAL 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. 7. THE ISSUE RAISED IN THE PRESENT APPEAL IS IDENTICAL TO THE ISSUE BEFORE THE TRIBUNAL IN 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 PARIT Y OF REASONING, WE DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION MADE ON ACCOUNT OF UNACCOUNTED CASH PAYMENT OF RS. 24,5 4, 1 40/ - . THUS, THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE ALLOWED. 8 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER P RONOUNCED ON THIS 8 TH DAY OF OCTOBER , 201 5 . SD/ - SD/ - (PRADIP KUMAR KEDIA) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 8 TH OCTOBER , 2015 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - I T/TP , PUN E ; 4. / THE CIT - I, PUNE ; 5. , , / DR B , ITAT, PUNE; 6. / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE