DCIT 1(1)(2), MUMBAI V. BOMBAY MERCANTILE CO OP BANK LTD, MUMBAI

ITA 1948/MUM/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0470 (ITAT-MUMBAI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2010-2011
• Appeal Filed On: 29-03-2016
• Court: TRIBUNAL

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE HONBLE SHRI SANDEEP GOSAIN, JM & HONBLE SHRI N. K. PRADHAN, AM ./ I.T.A. NO . 1948 /MUM/2016 ( / ASSESSMENT YEAR: 20 10 - 11 ) DCIT 1(1 )(2 ) ROOM NO. 57 , AAYAKAR BHAVAN , M.K. ROAD, MUMBAI - 400 020 . / VS. BOMBAY MERCANTILE CO. OP. BANK LTD. 78 MOHAMMED AI ROAD, MUMBAI - 400 020 ./ ./ PAN/GIR NO. A AAAB2359J ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI MANOJ KUMAR SINGH, DR / RESPONDENTBY : SHRI B. V. JHAVERI & W. HASAN , AR / DATE OF HEARING : 28/08 /201 8 / DATE OF PRONOUNCEMENT : 26.11.2018 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE P RESENT A PPEAL HAS BEEN FILED BY THE REVENUE IS AGAINST THE ORDER OF COMMISS I ONER OF INCOME TAX (APPEALS) - 2, MUMBAI 2 I.T.A. NO. 1948 /MUM/2016 BOMBAY MERCANTILE CO. OP. BANK LTD. DATED 18.12.15 FOR AY 2010 - 11 ON THE GROUNDS MENTIONED HEREIN BELOW: - 1. 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE L D.CIT(A) WAS CORRECT IN DELE TING THE ADDITIONS OF RS.3,25,00,000 / - MADE U/S.68/69 IN RESPECT OF THE IMMOVABLE PROPERTY TRANSACTIONS REGISTERED IN THE NAME OF THE ASSESSEE?' 2. 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CI T(A) WAS CORRECT IN NOT CALLING FOR REMAND REPORT UNDER RULE 46A IN RESPECT OF EVIDENCES ADMITTED WITH REGARD TO THE IMMOVABLE PROPERTY TRANSACTIONS?' 2 . AT THE VERY OUTSET, LD. D R APP EARING ON BEHALF OF THE REVENUE DRAWN OUR A TTENTION TOWARDS LETTER DATED 21.03.16 WHICH RELATES TO CONDONATION OF DELAY IN FILING APPEAL BEFORE HONBLE ITAT. LD. AR SUBMITTED THAT THE PRESENT APPEAL WAS NOT FILED WITHIN THE TIME BECAUSE OF REASONS AS MENTIONED IN THE APPLICATION. 3 I.T.A. NO. 1948 /MUM/2016 BOMBAY MERCANTILE CO. OP. BANK LTD. 3 . ON THE OTHER HAND, LD. A R REQUESTED F OR DISMISSAL OF THE SAID APPLICATION. 4 . WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES ON THE APPLICATION FOR SEEKING CONDONATION OF DELAY AND WHILE TAKING INTO CONSIDERATION THE CONTENTS OF A PPLICATION FILED BY THE REVENUE , WE FIND THAT THERE WAS SHORT DELAY IN FILING THE APPEAL. HENCE, THIS APPLICATION IS ALLOWED AND APPEAL IS ADMITTED TO BE HEARD ON MERITS. 5 . AS PER THE FACTS OF THE PRESENT CASE, THE RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 30.09.2010 DECLARING TOTAL LOSS OF RS. 4,74,30,115 / - . THEREAFTER THE CASE WAS SELECTED FOR SCRUTINY AND AFTER SERVING STATUTORY NOTICES AND SEEKING REPLY OF THE ASSESSEE, ORDER OF ASSESSMENT U/S 143(3) R.W.S. 147 OF THE I.T. ACT WAS PASSED ON 06.03.13 , THEREBY DETERMINING THE TOTAL INCOME AT RS. 18,48,140/ - UNDER NORMAL PROVISIONS OF THE ACT AND MADE ADDITIONS /DISALLOWANCES UNDER DIFFERENT HEADS. AGGRIEVED BY THE ORDER OF AO, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) AND LD. CIT(A) AFTER CONSIDERING THE CASE OF 4 I.T.A. NO. 1948 /MUM/2016 BOMBAY MERCANTILE CO. OP. BANK LTD. BOTH THE PARTIES PARTLY ALLO WED THE APPEAL OF THE ASSESSEE AND DELETED THE ADDITIONS U/S 68/69 OF THE I.T. ACT. NOW BEFORE US, THE REVENUE HAS PR EFERRED THE PRESENT APPEAL BEFORE US ON THE GROUNDS MENTIONED ABOVE. GROUND NO. 1 & 2 6 . THE SE GROUND S RAISED BY THE REVENUE ARE INTER CONNECTED AND INTER RELATED AND RELATES TO CHALLENGING THE ORDER OF LD. CIT(A) IN DELETING THE ADDITIONS OF RS.3,25,00,000/ - MADE U/S.68/69 IN RESPECT OF THE IMMOVABLE PROPERTY TRANSACTIONS REGISTERED IN THE NAME OF THE ASSESSEE AND ALSO IN NOT C ALLING FOR REMAND REPORT UNDER RULE 46A IN RESPECT OF EVIDENCES ADMITTED WITH REGARD TO THE IMMOVABLE PROPERTY TRANSACTIONS, THEREFORE WE THOUGHT IT FIT TO DISPOSE THE SAME BY THIS COMMON ORDER. 7 . WE HAVE HEARD COUNSELS FOR BOTH THE PARTIES AT LENGTH AN D WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS THE ORDERS PASSED BY REVENUE AUTHORITIES. BEFORE WE DECIDE THE MERITS OF THE CASE, IT IS NECESSARY TO EVALUATE THE ORDERS PASSED BY LD. CIT(A). THE LD. CIT(A) HAS 5 I.T.A. NO. 1948 /MUM/2016 BOMBAY MERCANTILE CO. OP. BANK LTD. DEALT WITH THE ABOVE GROUNDS RAISED BY THE REVE NUE IN PARA NO. 3 TO 4 OF ITS ORDER. THE OPERATIVE PORTION OF THE ORDER OF LD. CIT(A) IS CO NTAINED IN PARA NO. 4(4.1 TO 4.2 ) OF ITS ORDER AND THE SAME IS REPRODUCED BELOW: - 4. GROUND NOS. 2 AND 3 ; 4.1. IN GROUND NO. 2, IT HAS BEEN CONTENDED THAT THE AO ERRED IN MAKING THE ADDITION OF RS. 2,75,00,000/ - U/S. 69 OF THE INCOME - TAX ACT, 1961 AS UNDISCLOSED INVESTMENT. IN GROUND NO. 3, IT HAS BEEN CONTENDED THAT THE AO ERRED IN MAKING THE ADDITION OF RS. 50,00,000/ - U/S. 68 OF THE INCOME - TAX ACT, 1961 AS UNDISCLOSED INCOME. 4.2. THE AO HAS ADDED A SUM OF RS. 2,75,00,000/ - U/S. 69 OF THE I.T. ACT AND ANOTHER RS. 50,00,OOO/ - U/S. 68 OF THE I.T. ACT AND AFTER MAKING SOME ADJUSTMENTS IN THE BUSINESS INCOME LOSS, THE TAXABLE INCOME ARRIVED AT R S. 18,48,140/ - . THE AO HAS ADDED A SURRI OF RS. 2,75,00,000/ - U/S. 69 AND RS. 50,00,000/ - U/S. 68 ON ACCOUNT OF AIR INFORMATION RECEIVED BY HIM. AS AGAINST THIS, THE AR OF THE APPELLANT COMPANY ARGUES THAT THE ABOVE AIR INFORMATION IS NOT PERTAINING TO THE IR APPELLANT, M/S. BOMBAY MERCHANTILE CO.OP BK. LTD. BUT CONNECTION TO THE FOLLOWING PERSONS : 6 I.T.A. NO. 1948 /MUM/2016 BOMBAY MERCANTILE CO. OP. BANK LTD. (1) M/S. MANIK MACHINERY MANUFACTURERS PVT. LTD. (2) M/S. AJIT S/O. LAXMANBAHAI PATEL, SMT. PRATIBHA W/O AJIT PATEL, M/S. AJAY DEEP NEW TOWN DEVELOPERS PVT. LTD., AJAY DEEP ASSOCIATES. (3) MS. SYEDA SHAHJAHAN W/O. SYED KHAJA MOHUIDDIN FURTHER, IT IS SUBMITTED BY THE AR OF THE APPELLANT THAT THE RECTIFICATION PETITION WAS FILED BEFORE THE DCIT(OSD) - !, MUMBAI ON 29.01.2014, A COPY OF THE SAME WAS FILED BY THE APPELLANT IN THIS OFFICE WHEREIN THE APPELLANT COMPANY PRAYED FOR RECTIFICATION OF THE UNEXPLAINED INVESTMENT WRONGLY MADE UNDER THE COMPANY'S NAME INSTEAD THE TRANSACTION IS FOUND TO BE MORTGAGE OF LAND IN THE NAMES OF THE FOLLOWING PERSONS: - 1. M /S. MANIK MACHINERY MANUFACTURERS PVT. LTD. - RS.50,00,000/ - 2. AJIT S/O. LAXMANBHAI PATEL, SMT. PRATIBHA W/O. AJIT PATEL, M/S. AJAY DEEP NEW TOWN DEVELOPERS PVT. LTD., AJAY DEEP ASSOCIATES. 3. MS. SYEDA SHAHJADAN W/O. SYED KHAJA MOHIUDDIN . I HAVE GONE THROUGH THE RECTIFICATION PETITION DATED 29.01.2014, THE RELEVANT PORTION IS AS UNDER : 7 I.T.A. NO. 1948 /MUM/2016 BOMBAY MERCANTILE CO. OP. BANK LTD. 'YOUR KIND ATTENTION IS INVITED TO THE ASSESSMENT ORDER U/S. 143(3) DATED 06 MARCH 2013 FOR A.Y. 2010 - 11 PASSED BY THE THEN A.O NAMELY, DY. COMMISSIONER OF INCOME TAX 1(1), MUMBAI, DETERMINING THE INCOME OF THE ASSESSEE AT RS. 18,48,140/ - AGAINST THE RETURNED LOSS OF RS. 4,47,30,115/~. THE INCOME OF RS. 18,48,140/ - WAS DETERMINED BY MAKING CERTAIN ADDITIONS TO THE RETURNED LOSS WHICH, INTER ALIA, INCLUDED AN ADDITION OFRS. 3,25,00,000/ - ON ACCOUNT OF UNEXPLAINED INVESTMENT. THIS ADDITION WAS MADE TO PROTECT THE INTEREST OF REVENUE AS NO REPLY TO THE NOTICE U/S. 133(6) ISSUED TO JOINT - SUB - REGISTRAR, BANDRA (E), MUMBAI AND JOINT SUB REGISTRAR CL II, AURANGABAD N O. 1 WAS RECEIVED AND THE ASSESSMENT WAS GETTING BARRED BY LIMITATION BY 31 MARCH 2013. THE FACTS ABOUT THIS ADDITION ARE DISCUSSED IN PARAGRAPH 5 OF THE ASSESSMENT ORDER WHICH IS REPRODUCED HEREUNDER: ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT AS PER P ARA 5 OF THE ASSESSMENT ORDER DATED 06.03.2013: 5. DURING THE ASSESSMENT PROCEEDINGS THE AR OF THE ASSESSEE WAS REQUESTED TO FURNISH A RECONCILIATION OF AIR/ITS DETAILS. WITH RESPECT TO THE FOLLOWING AIR TRANSACTION THE ASSESSEE HAS NOT 8 I.T.A. NO. 1948 /MUM/2016 BOMBAY MERCANTILE CO. OP. BANK LTD. BEEN ABLE TO RECONC ILE THE SAME WITH ITS BOOKS OF ACCOUNTS : 1. SALE OF IMMOVABLE PROPERTY WORTH RS. 50,00,000/ - 2. PURCHASE OF IMMOVABLE PROPERTY WORTH RS. 2,00,00,0007 - 3. PURCHASE OF IMMOVABLE PROPERTY WORTH RS. 75,00, OOO/ - VIDE HIS REPLY DATED 26 DECEMBER 2012 THE AR HAS STATED THAT THE ASSESSEE REQUESTS FURTHER DETAILS OF THE PARTY INVOLVED IN THE TRANSACTION TO BE ABLE TO RECONCILE THE SAME WITH ITS BOOKS. NOTICES U/S. 133(6) DATED 31 DECEMBER 2012 WERE SENT TO THE JOINT S UB - REGISTRAR, BANDRA EAST, MUMBAI AND TO THE JOINT SUB - REGISTRAR, AURANGABAD CALLING FOR THE DETAILS OF THE AFOREMENTIONED TRANSACTIONS. HOWEVER, NO REPLIES HAVE BEEN RECEIVED FROM THE JOINT SUB - REGISTRAR, MUMBAI OR THE JOINT SUB - REGISTRAR, AURANGABAD. THU S TO PROTECT THE INTEREST OF THE REVENUE IT IS ASSUMED THAT SINCE THE AFOREMENTIONED TRANSACTIONS WERE UP LOADED IN THE NAME OF THE ASSESSEE, THE SAME WERE ASSESSEE'S UNDISCLOSED TRANSACTIONS. THUS AN AMOUNT OFRS. 50,00,000/ - IS BEING TREATED AS THE UNDISC LOSED INCOME OF THE 9 I.T.A. NO. 1948 /MUM/2016 BOMBAY MERCANTILE CO. OP. BANK LTD. ASSESSEE U/S. 68 OF THE IT ACT, 1961 FOR THE A. Y UNDER CONSIDERATION. THE AMOUNT OFRS. 2, 75,00,0007 - IS BEING TREATED AS THE ASSESSEE'S UNDISCLOSED INVESTMENT U/S. 69 OF THE IT ACT, 1961. PENALTY PROCEEDINGS U/S. 271(L)(C) ARE ALSO BEI NG INITIATED AGAINST THE ASSESSEE FOR FURNISHING INACCURATE PARTICULARS OF INCOME LEADING TO CONCEALMENT OF INCOME.' FURTHER, I HAVE ALSO GONE THROUGH THE EXPLANATION GIVEN BY THE APPELLANT COMPANY FOR THE ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT WHICH IS AS UNDER : '1] JOINT SUB REGISTRATION OFFICE (M.S.D) ANDHERI 2 - R50,00,000/ - THIS AMOUNT PERTAINS TO PROPERTY PU RCHASED BY MANIK MACHINERY MANUFACTURERS PVT. LTD. THE PURCHASE OF THE PROPERTY WAS FINANCED BY THE BANK. THE PROPERTY WAS MORTGAGED IN FAVOUR OF THE BANK AND THE MORTGAGE WAS REGISTERED ON 19 MAY 2009. THE TRANSACTION SEEMS TO HAVE BEEN REPORTED IN THE NA ME OF THE BANK AS THE SAME IS FINANCED BY IT AND MORTGAGED TO IT. RELEVANT PAPERS RELATING TO THE MORTGAGE AND TRUE COPY OF A NOTE DATED 21 DECEMBER 2013 RECEIVED FROM THE JOINT SUB - REGJSTRAR OFFICE, ANDHERI ARE ENCLOSED AS ANNEXURE G. 10 I.T.A. NO. 1948 /MUM/2016 BOMBAY MERCANTILE CO. OP. BANK LTD. 2] JOINT SUB REG IST RAR CLII, AURANGABAD NO. 1, R 2,00,00,000/ - THIS AMOUNT PERTAINS TO PROPERTY PURCHASED BY AJIT S/O LAXMANBAHAI PATEL, SMT PRATIBHA W/O AJIT PATEL, M/S AJAY DEEP NEW TOWN DEVELOPERS PVT. LTD., AJAY DEEP ASSOCIATES. THE PURCHASE OF THE PROPERTY WAS FINANCED B Y THE BANK. THE PROPERTY WAS MORTGAGED IN FAVOUR OF THE BANK AND THE MORTGAGE WAS REGISTERED ON 26 MAY 2009. THE TRANSACTION SEEMS TO HAVE BEEN REPORTED IN THE NAME OF THE BANK AS THE SAME IS FINANCED BY IT AND MORTGAGED TO IT. RELEVANT PAPERS RELATING TO THE MORTGAGE AND TRUE COPY OF A NOTE DATED 13 JANUARY 2014 RECEIVED FROM THE JOINT SUB - REGISTRAR OFFICE, AURANGABAD ARE ENCLOSED AS ANNEXURE H. 3] JOINT SUB REGISTRAR CL II, AURANGABAD NO. 1, R 75,00,000/ - THIS AMOUNT PERTAINS TO PROPERTY PURCHASED BY MS. SYEDA SHAHJAHAN W/O SYED KHAJAMOHIUDDIN. THE PURCHASE OF THE PROPERTY WAS FINANCED BY THE BANK. THE PROPERTY WAS MORTGAGED IN FAVOUR OF THE BANK AND THE MORTGAGE WAS REGISTERED ON 20 JUNE 2009. THE TRANSACTION SEEMS TO HAVE BEEN REPORTED IN THE NAME OF THE BANK AS THE SAME IS FINANCED BY IT AND MORTGAGED TO IT. RELEVANT PAPERS RELATING TO THE MORTGAGE AND TRUE COPY OF A NOTE DATED 13 JANUARY 2014 RECEIVED FROM 11 I.T.A. NO. 1948 /MUM/2016 BOMBAY MERCANTILE CO. OP. BANK LTD. THE JOINT SUB - REGISTRAR OFFICE, AURANGABAD ARE ENCLOSED AS ANNEXURE I.' I HAVE ALSO GONE THROUGH T HE ASSESSMENT ORDER DATED 06.03.3013 ON PAGE NO. 3 PARA NO. 5. THE AO HAS MENTIONED THAT THE NOTICES WERE ISSUED U/S. 133(6) ON 31.12.2012 TO CLARIFY THE AIR INFORMATION. HOWEVER THE INFORMATION WAS NOT SUPPLIED BY THE CONCERNED SUB - REGISTRAR, AURANGABAD, THE RELEVANT PORTION IS AS UNDER : 'DURING THE ASSESSMENT PROCEEDINGS, THE AR OF THE ASSESSEE WAS REQUESTED TO FURNISH A RECONCILIATION OF THE AIR/ITS DETAILS. WITH RESPECT TO THE FOLLOWING AIR TRANSACTIONS THE ASSESSEE HAS NOT BEEN ABLE TO RECONCILE THE S AME WITH ITS BOOKS OF ACCOUNTS : 1. SALE OF IMMOVABLE PROPERT Y WORTH - RS. 50,00,000 / - 2. PURCHASE OF IMMOVABLE PROPERTY WORTH - RS. 2,00,00,000/ - 3. PURCHASE OF IMMOVABLE PROPERTY WORTH - RS. 75,00,000/ - VIDE HIS REPLY DATED 26.12,2012 THE AR HAS STATED THAT THE ASSESSEE REQUESTS FURTHER DETAILS OF THE PARTY 12 I.T.A. NO. 1948 /MUM/2016 BOMBAY MERCANTILE CO. OP. BANK LTD. INVOLVED IN THE TRANSACTION TO BE ABLE TO RECONCILE THE SAME WITH ITS BOOKS. NOTICES U/S. 133(6) DATED 31.12.2012 WERE SENT TO THE JOINT SUB - REGISTRAR , BANDRA (E), MUMBAI AND TO THE JOINT SUB - REGISTRAR, AURANGABAD CALLING FOR THE DETAILS OF THE AFOREMENTIONED TRANSACTIONS. HOWEVER, NO REPLIES HAVE BEEN RECEIVED FROM THE JOINT SUB - REGISTRAR, MUMBAI OR THE JOINT SUB - REGISTRAR, AURANGABAD. THUS, TO PROTECT THE INTEREST OF REVENUE IT IS ASSUMED THAT SINCE THE AFOREMENTIONED TRANSACTIONS WERE UPLOADED IN THE NAME OF THE ASSESSEE, THE SAME WERE ASSESSEE'S UNDISCLOSED TRANSACTIONS.' AFTER GOING THROUGH THE FACTS ON RECORD AND THE EXPLANATION GIVEN BY THE APPELL ANT COMPANY, THE APPELLANT COMPANY IS ITSELF FOUND TO BE A BANKING INSTITUTION WHICH FUNDED TO THE FOLLOWING PERSONS FOR MORTGAGE PURPOSES : 1. M/S. MANIK MACHINERY MANUFACTURERS PVT. LTD. - RS.50,00,000/ - 2. AJIT S/O. LAXMANBHAI PATEL, SMT. PRATIBHA W/O . AJIT PATEL, M/S. AJAY DEEP NEW TOWN DEVELOPERS PVT. LTD., AJAY DEEP ASSOCIATES. 3. MS. SYEDA SHAHJADAN W/O. SYED KHAJA MOHIUDDIN. 13 I.T.A. NO. 1948 /MUM/2016 BOMBAY MERCANTILE CO. OP. BANK LTD. THE AIR WRONGLY TREATED THIS TRANSACTION IN THE NAME OF THE APPELLANT COMPANY WHICH IS ALSO EVIDENT FROM THE AO'S REMARKS THAT 'TO PROTECT THE INTEREST OF REVENUE IT IS ASSUMED THAT SINCE THE AFOREMENTIONED TRANSACTIONS WERE UPLOADED IN THE NAME OF THE ASS ESSEE, THE SAME WERE ASSESSEE'S UNDISCLOSED TRANSACTION'. FROM THE ABOVE DISCUSSION, IT IS VERY CRYSTAL CLEAR THAT THE SAID AMOUNT OF RS. 3.25 CRORES IS WRONGLY FOUND TO BE LOADED IN THE HANDS OF THE APPELLANT COMPANY IN THE AIR INFORMATION INSTEAD OF JUST TO TREAT IT AS A MORTGAGE TRANSACTION AS EVIDENT FROM ANNEXURE 'G', ANNEXURE 'H' AND ANNEXURE T WHICH IS THE PROOF OF THE REGISTRATION DONE BY THE CONCERNED JOINT SUB - REGISTRAR. SINCE THE INFORMATION REQUIRED BY THE AO U/S. 133(6) AT THE TIME OF ASSESSMEN T WHICH IS ACTUALLY PRODUCED BY THE APPELLANT COMPANY DURING THE APPELLATE PROCEEDINGS, AND ALSO FILED PETITION U/S. 154 FOR THE SAME REASON BEFORE THE AO (TILL THE DATE AO HAS NOT DISPOSED OFF THE RECTIFICATION PETITION U/S. 154) WITH EVIDENCES NO REMAND REPORT WAS CALLED FROM THE AO AND ACCORDINGLY, I AM OF THE CONSIDERED OPINION THAT THE ADDITION OF RS. 3,25,00,000/ - U /S. 68 IS NOT JUSTIFIABLE AND HENCE I DIRECT THE AO TO DELETE THE ABOVE ADDITION OF RS. 3,25,00,000/ - . 14 I.T.A. NO. 1948 /MUM/2016 BOMBAY MERCANTILE CO. OP. BANK LTD. AFTER HAVING GONE THROUGH THE FACTS OF THE PRESENT CASE AS WELL AS CONSIDERING THE ORDERS PASSED BY REVENUE AUTHORITIES AND SUBMISSIONS MADE BY BOTH THE PARTIES, WE FIND THAT INITIALLY THE ADDITIONS WERE MADE BY THE AO OF RS. 3.25 CRORES U/S 68/69 OF THE I.T. ACT AND WHILE DOING SO, AO CONSIDERED THE REPLY FILED BY THE ASSESSEES WRITTEN SUBMISSION DATED 26.12.12 WHEREIN, THE ASSESSEE HAS CATEGORICALLY STATED TO FURNISH A RECONCILIATION OF THE AIR/ITS DETAILS AS THE ASSESSEE WANTED TO ASCERTAIN THE PARTIES INVOLVED IN THE TRANSACTIONS. IT WAS STATED BY THE ASSESSEE THAT THE AIR INFORMATION WAS NOT PERTAINING TO THE ASSESSEE I.E. M/S BOMBAY MERCANTILE CO. OP. BANK LTD, BUT CONNECTION TO THE FOLLOWING PERSONS: - (1) M/S. MANIK MACHINERY MANUFACTURERS PVT. LTD. (2) M/S. AJIT S/O. LAXMANBAHAI PATEL, SMT. PRATIBHA W/O AJIT PATEL, M/S. AJAY DEEP NEW TOWN DEVELOPERS PVT. LTD., AJAY DEEP ASSOCIATES. (3) MS. SYEDA SHAHJAHAN W/O. SYED KHAJA MOHUIDDIN 15 I.T.A. NO. 1948 /MUM/2016 BOMBAY MERCANTILE CO. OP. BANK LTD. HOWEVER ON THIS REQUEST OF THE ASSESSEE, ALTHOUGH THE AO ISSUED NOTICE U/S 133(6) OF THE I.T. ACT TO THE JOINT SUB - REGISTRAR OF THE RESPECTIVE AREAS CALLING FOR THE DETAILS OF THE TRANSACTIONS AND SINCE NO REPLIES WERE RECEIVED FROM THE RESPECTIVE JOINT SUB - REGISTRARS, THEREFORE 'TO PROTECT THE INTEREST OF REVENUE IT IS ASSUMED THAT SINCE THE AFOREMENTIONED TRANSACTIONS WERE UPLOADED IN THE NAME OF THE ASSESSEE, THEREFORE, THE SAME WERE ASSESSEE'S UNDISCLOSED TRANSACTION' . WE ALSO FIND THAT LD. CIT(A) DURING THE APPELLATE PROCEEDINGS HAD GONE THROUGH THE FACTS CONTAINED IN THE PRESENT CAS E AND THE EXPLA NATION GIVEN BY THE ASSESSEE AND RIGHTLY CONCLUDED THAT THE ASSESSEE COMPANY IS ITSELF FOUND TO BE A BANKING INSTITUTION WHICH FUNDED (1) M/S. MANIK MACHINERY MANUFACTURERS PVT. LTD. (2) M/S. AJIT S/O. LAXMANBAHAI PATEL, SMT. PRATIBHA W/O AJIT PATEL, M/S. AJAY DEEP NEW TOWN DEVELOPERS PVT. LTD., AJAY DEEP ASSOCIATES AND (3) MS. SYEDA SHAHJAHAN W/O. SYED KHAJA MOHUIDDIN, FOR MORTGAGE PURPOSES. LD. CIT(A) ALSO APPRECIATED ANNEXURE - G, H & I , WHICH IS THE PROOF OF THE REGISTRATION DONE BY THE CONCERNED JOINT SUB - 16 I.T.A. NO. 1948 /MUM/2016 BOMBAY MERCANTILE CO. OP. BANK LTD. REGISTRAR AND RIGHTLY CONCLUDED THAT THE SAID AMOUNT OF RS. 3.25 CRORES WERE WRONGLY FOUND TO BE LOADED IN THE HANDS OF THE ASSESSEE COMPANY IN THE AIR INFORMATION INSTEAD OF TREATING AS A MORTGAGE TRANSACTION. THE INFORMATION W HICH WAS SOUGHT BY THE AO U/S 133(6) OF THE I.T. ACT AT THE TIME OF ASSESSMENT WAS ACTUALLY PRODUCED BY THE ASSESSEE DURING THE APPELLATE PROCEEDINGS. THESE DOCUMENTS WHICH WERE PRODUCED BY THE ASSESSEE ARE THE PROOF OF REGISTRATION DONE BY THE CONCERNED J OINT SUB REGISTRAR AND THE SAID DOCUMENTS ARE IN PUBLIC DOMAIN AND THEY ARE AVAILABLE WITH THE DEPARTMENT, THEREFORE IN SUCH CIRCUMSTANCES, LD. CIT(A) CANNOT BE SAID TO HAVE ADMITTED THE ADDITIONAL EVIDENCE IN THE FORM OF SAID DOCUMENTS. IN THIS REGARD, W E RELY UPON THE DECISION OF COORDINATE BENCH OF ITAT IN THE CASE OF ITO VRS. INDUSTRIAL ROADWAYS (2008) 305 ITR (AT) 219 (MUMBAI) , WHEREIN IT WAS HELD THAT THE POWERS OF LD. CIT(A) IN THE PROVISIONS OF SECTION 250(4) OF THE I.T. ACT WERE DISCUSSED, IF THE EVIDENCE FURNISHED BY THE ASSESSEE DURING THE APPELLATE AUTHORITY IS IN THE NATURE OF CLINCHING EVIDENCE LEAVING NO FURTHER ROOM FOR ANY DOUBT OR CONTROVERSY IN SUCH A CASE NO USEFUL PURPOSE WOULD BE SERVED IN PERFORMING THE RITUAL OF 17 I.T.A. NO. 1948 /MUM/2016 BOMBAY MERCANTILE CO. OP. BANK LTD. FORWARDING THE EVIDE NCE /MATERIAL TO THE AO AND OBTAINING HIS REPORT. THEREFORE IN SUCH EXCEPTIONAL CIRCUMSTANCES, THE REQUIREMENT OF SUB - RULE 3 MAY BE DISPENSED WITH. MOREOVER, N O NEW FACTS OR CONTRARY JUDGMENTS HAVE BEEN BROUGHT ON RECORD BEFORE US I N ORDER TO CONTROVERT OR REBUT THE FINDINGS SO RECORDED BY LD. CIT(A). THEREFORE, WE SEE NO REASON S TO INTERFERE INTO OR DEVIATE FROM THE FINDINGS RECORDED BY THE LD.CIT(A). HENCE , CONSIDERING THE FACTS OF THE CASE AS WELL AS FOLLOWING THE DECISION OF THE COORDINATE BENCHES AND IN ORDER TO MAINTAIN JUDICIAL CONSISTENCY, WE ARE OF THE CONSIDERED VIEW THAT THE FINDINGS SO RECORDED BY THE LD. CIT (A) ARE JUDICIOUS AND ARE WE LL REASONED. RESULTANTLY, THESE GROUND S RAISED BY THE REVENUE STANDS DISMISSED . 8 . IN T HE NET RESULT , THE APPEAL FILED BY THE REVENUE STANDS DISMISSED WITH NO ORDER AS TO COST. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH NOV , 20 1 8 SD/ - SD/ - ( N. K. PRADHAN ) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 26 .11 .201 8 SR.PS . DHANANJAY 18 I.T.A. NO. 1948 /MUM/2016 BOMBAY MERCANTILE CO. OP. BANK LTD. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI