Income Tax Officer Ward-2(3), Jabalpur V. M/s Shri Ram Construction, Jabalpur

ITA 21/JAB/2020

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 4299 (ITAT-JABALPUR)
• Duration Of Justice: 4 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-02-2021
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2017-2018
• Appeal Filed On: 17-09-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: I B KHANDEL
• Keywords: Unexplained cash credit; Capital asset; Principle of natural justice; Additional evidence; Onus to prove; Set aside
• Section: 143(3); 13; 68; 54

Judgement Text

ITA NO. 21/JAB/2020 (AY 2017-18) ITO V. SHRI RAM CONSTRUCTION 1 | P A G E INCOME TAX APPELLATE TRIBUNAL JABALPUR BENCH, JABALPUR BEFORE SHRI NRS GANESAN, JUDICIAL MEMBER & SANJAY A RORA, ACCOUNTANT MEMBER ITA NO.21/JAB/2020 INCOME TAX OFFICER, WARD 2(3), 2 ND FLOOR, ANNEXE BUILDING, AAYAKAR BHAWAN, NEAR RUSSEL CHOWK, JABALPUR - 482001 VS. SHRI RAM CONSTRUCTION, 1-SIMPLEX ESTATE, NAGPUR ROAD, MADAN MAHAL WARD, JABALPUR - 482001 [PAN: AALFM 1481C] (APPELLANT ) (RESPONDENT) APPELLANT BY SHRI I. B. KHANDEL, SR.DR RESPONDENT BY SHRI RAHUL BARDIA, CA DATE OF HEARING 29/12/2020 DATE OF PRONOUNCEMENT /01/2021 ORDER PER SANJAY ARORA, AM: THIS IS AN APPEAL BY THE REVENUE DIRECTED AGAINST T HE ORDER DATED 22/6/2020 BY THE COMMISSIONER OF INCOME TAX (APPEALS)-1, JABALPUR (CIT(A) FOR SHORT) ALLOWING THE ASSESSEES APPEAL AGITATING ITS ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (THE AC T HEREINAFTER) DATED 30/12/2019 FOR ASSESSMENT YEAR (AY) 2017-18. 2. AT THE VERY OUTSET, WE OBSERVE THAT THE APPEAL I S DELAYED BY 5 DAYS. THE CIRCUMSTANCES UNDER WHICH IT WAS SO STAND EXPLAINED IN THE CONDONATION APPLICATION DATED 27/10/2020 ON RECORD, WHICH ALSO BEARS REFERENCE TO THE TAXATION AND OTHER LAWS (RELAXATION OF CERTAIN PROVISIONS) O RDINANCE, 2020 AS WELL AS TO THE GAZETTED NOTIFICATIONS ISSUED THEREUNDER BY THE CENTRAL GOVERNMENT EXTENDING THE PERIOD FOR VARIOUS COMPLIANCES FROM TIME TO TIM E. NO OBJECTION QUA THE SAME, ITA NO. 21/JAB/2020 (AY 2017-18) ITO V. SHRI RAM CONSTRUCTION 2 | P A G E AND ONLY FAIRLY SO, WAS ALSO RAISED BY THE LD. COUN SEL FOR THE ASSESSEE, SH. BARDIA. UNDER THE CIRCUMSTANCES THE DELAY IS CONDONED, BEIN G IN FACT STATUTORILY PROVIDED. WE ALSO OBSERVE THAT THE APPEAL IS MAINTAINABLE U/S . 268A; THE TAX-EFFECT BEING RS. 62.19 LACS INASMUCH AS THE TAX ON THE DELETION BEIN G IMPUGNED IS AT A HIGHER RATE. 3.1 THE BRIEF FACTS OF THE CASE, IN-SO-FAR AS ARE R ELEVANT FOR THE PURPOSE OF THIS APPEAL, ARE AS FOLLOWS. THE ASSESSEE, A PARTNERSHIP FIRM IN THE BUSINESS OF PROPERTY DEVELOPMENT, FILED ITS RETURN OF INCOME FOR THE YE AR ON 02/11/2017 AT RS. 72,191, WHICH WAS SUBJECT TO THE VERIFICATION PROCEDURE UND ER THE ACT BY THE ASSESSING OFFICER (AO) BY THE ISSUE OF NOTICE U/S.143(2) ON 2 8/9/2018. THE AO, DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS OBSERVED CREDI TS AT . 80,50,000 FROM ONE, SMT. SUNITA KHATRI W/O SH. S.K. KHATRI, PARTNER, A CCOUNTED FOR BY THE ASSESSE AS UNDER: UNSECURED LOAN: . 30.50 LAKHS ADVANCE AGAINST BUILDING: . 50 LAKHS THE SAID CREDITOR, ALSO ASSESSED WITH HIM, HAD SOLD IMMOVABLE PROPERTY FOR . 73,62,918 DURING THE RELEVANT YEAR, INVESTING THE S AME IN THE PURCHASE OF ANOTHER PROPERTY, CLAIMING EXEMPTION U/S. 54, RETURNING INC OME AT 3,91,480, WHICH CLEARLY DID NOT EXPLAIN THE CREDITS FOR .80.50 LACS DURING THE YEAR, AND WHICH, THEREFORE, REMAINED UNEXPLAINED, AND ACCORDINGLY DE EMED AS INCOME U/S. 68. 3.2 IN APPEAL, THE ASSESSEE FURNISHED THE FOLLOWING DOCUMENTS BEFORE THE LD. CIT(A), AS UNDER: (REFER PARA 3/PGS. 2-4; PARA 4.1. 2/PG.7 OF THE IMPUGNED ORDER) (A) COPY OF LEDGER FOR LOAN AND ADVANCE; (B) CONFIRMATION FROM LENDER/CUSTOMER; (C) COPY OF BANK STATEMENT OF SMT. SUNITA KHATRI FOR F Y 2016-17; (D) COPY OF ITR AND COMPUTATION OF SUNITA KHATRI FOR AY 2017-18; (E) COPY OF AGREEMENT FOR SALE OF PROPERTY WITH M/S. B ALAJI INFRASTRUCTURE; (F) COPY OF AGREEMENT FOR PURCHASE OF PROPERTY BY SMT. SUNITA KHATRI WITH ITA NO. 21/JAB/2020 (AY 2017-18) ITO V. SHRI RAM CONSTRUCTION 3 | P A G E SHRI RAM CONSTRUCTION; AND (G) COPY OF BALANCE SHEET OF SMT. SUNITA KHATRI AS ON 31.03.2017. THE LD. CIT(A), AFTER CONSIDERING THE SAME AS WELL AS THE ASSESSEES SUBMISSIONS, OPINED AS UNDER: 4.1.1 I HAVE CONSIDERED THE FACTS OF THE CASE, PLEA RAISED BY THE APPELLANT AND FINDING OF THE AO. THE APPELLANT DURING THE COURSE OF APPELLATE PR OCEEDINGS HAS STRONGLY CONTENDED THAT THE FOLLOWING INVESTMENTS WERE MADE IN APPELLANT FIRM B Y SMT. SUNITA KHATRI: (AMT. IN RS.) HEAD OF RECEIPT FROM SMT SUNITA KHATRI OPENING BALANCE ADDITION REPAYMENT CLOSING BALANCE UNSECURED LOAN NIL 30,00,000/- (05.07.2016) 50,000/- (16.07.2016) NIL 30,50,000/- ADVANCE AGAINST BOOKING 68,41,693 50,00,000/- (27.06.2016) NIL 1,18,41,693/- TOTAL 80,50,000/- 1,48,91,693/- THE APPELLANT HAS ALSO EXPLAINED SOURCE OF LOAN AND ADVANCE WITH SUPPORTIVE DOCUMENTS. THE APPELLANT HAS SUBMITTED THAT SMT. SU NITA KHATRI AND OTHER ENTERED INTO AN AGREEMENT ON 29.01.2016 WITH M/S. BALAJI INFRASTRUC TURE FOR DEVELOPMENT AND CONSTRUCTION OF DUPLEX/BUILDING IN THE NAME OF PROJECT SWASTIK HEIGHTS' ON LAND OWNED BY SMT. SUNITA KHATRI AND OTHERS. AGAINST THIS AGREEMENT SMT. SUNI TA KHATRI IN AY 2016-17 RECEIVED A SUM OF RS. 1,39,88,535/- AND IN AY 2017-18 RECEIVED A S UM OF RS. 70,00,000/-. THE SAME AMOUNT WAS TRANSFERRED TO APPELLANT FIRM BY SMT. SU NITA KHATRI IN AY 2017-18. THE DETAILS OF AMOUNT RECEIVED/PAID BY SMT. SUNITA KHATRI ARE A S UNDER: (AMOUNT IN RS.) DATE OF PAYMENT TO APPELLANT FIRM AMOUNT DATE OF RECEIPT BY SMT. SUNITA KHATRI AMOUNT SOURCE OF RECEIPT 05.07.2016 16.07.2016 30,00,000/- 50,000/- 05.02.2016 09.03.2016 22.03.2016 25,00,000/- 25,00,000/- 10,00,000/- LAND ADVANCE FROM M/S. BALAJI INFRASTRUCTURE 27.06.2016 50,00,000/- 03.06.2016 27.06.2016 12,50,000/- 12,50,000/- LAND ADVANCE FROM M/S. BALAJI INFRASTRUCTURE TOTAL 8050000 85,00,000/- ITA NO. 21/JAB/2020 (AY 2017-18) ITO V. SHRI RAM CONSTRUCTION 4 | P A G E IT IS UTMOST IMPORTANT THAT THE ENTIRE RECEIPT AND PAYMENT HAS BEEN FULLY RECORDED IN BOOKS OF ACCOUNT OF SMT. SUNITA KHATRI WHICH WERE V ERIFIED BY THE AO. THUS, THE ALLEGATION OF THE AO THAT MEAGER INCOME HAS BEEN SHOWN IN RETU RN OF INCOME BY SMT. SUNITA KHATRI HAS NO MERIT AND IS THEREFORE, REJECTED. THE AO OUGHT T O HAVE CONSIDERED THE RECEIPTS OF FUNDS WHICH ARE DISCLOSED IN BOOKS OF ACCOUNT BEFORE MAKI NG ANY ALLEGATION ON SMT. SUNITA KHATRI. AS THE APPLICABILITY OF AMENDED PROVISIONS OF SECTI ON 115BBE OF THE ACT. IT IS HELD THAT THE APPELLANT HAS DISCHARGED ITS ONUS OF PROVING CREDIT WORTHINESS OF SMT. SUNITA KHATRI, NO ADDITION U/S 68 OF THE ACT SURVIVED. THEREFORE, AME NDED PROVISIONS OF SECTION 115BBE ARE ANT (NOT) APPLICABLE IN THE CASE OF APPELLANT AND T HE AO IS DIRECTED TO CALCULATE TAX AT NORMAL APPLICABLE TAX RATES. 4.1.2 THE CREDITOR FURNISHED THE CONFIRMATION REGAR DING INVESTMENT IN APPELLANT FIRM BY WAY OF UNSECURED LOAN AND ADVANCE AGAINST BOOKING, COPY OF BANK ACCOUNT, BALANCE SHEET, COPY OF AGREEMENT FOR PURCHASE OF PROPERTY FROM APP ELLANT FIRM, COPY OF AGREEMENT WITH M/S BALAJI INFRASTRUCTURE AND PROOF OF FILING OF THE RE TURN. BY FILING THE ABOVE DOCUMENTS THE APPELLANT IS ABLE TO ESTABLISH THE - I. IDENTITY OF THE CREDITOR - THE LENDER IS INCOME TAX PAYER AND IS ASSESSED BY THE SAME AO. II. GENUINENESS OF THE TRANSACTION - THE APPELLANT HAS TAKEN THE LOAN/ADVANCE THROUGH BANKING CHANNEL. COPIES OF BANK STATEMENTS OF LENDER IS PLA CED ON RECORD AND PERUSED. FROM PERUSING THE BANK STATEMENTS OF THE LENDER AS FURNISHED IN T HE PAPER BOOK, IT IS FOUND THAT NO CASH WAS DEPOSITED IN THE BANK ACCOUNT PRIOR TO ISSUANCE OF CHEQUE TO THE ASSESSEE FOR THE UNSECURED LOAN/ADVANCE. III. CREDITWORTHINESS OF THE CREDITOR - THE LENDER IS INCOME TAX PAYER AND FILING THE INCOME TAX RETURN. THE LENDER HAS RECEIVED ADVANCE AMOUNT FROM M/S. BALAJI INFRASTRUCTURE AND THE SAME WAS UTILIZED FOR PURCHASE OF PROPERTY FROM APPELLAN T FIRM. FINDING THUS THE NATURE AND SOURCE OF THE IMPUGNED CREDITS AS EXPLAINED IN TERMS OF IDENTITY AND CAPACITY OF THE CREDITOR, AND THE GENUINENESS OF THE CREDIT TRANSACTIONS, HE DIRECTED THE DELETION OF THE ADDITION, CITING DE CISIONS IN UMESH ELECTRICALS V. ASST. CIT [2011] 131 ITD 127 (AGRA) AND ASEEM SINGH V. ASST. CIT [2012] 19 ITJ 52 (IND.) TOWARD THE SATISFACTION OF THE SAID THREE CONDITIONS (PARA 4.1.3). AGGRIEVED, THE REVENUE IS IN APPEAL, RAISING THE FO LLOWING GROUNDS: 01. WHETHER ON THE BASIS OF THE FACTS AND CIRCUMSTA NCES OF THE CASE THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 80,50,000/- O N ACCOUNT OF UNEXPLAINED CREDIT RECEIVED ITA NO. 21/JAB/2020 (AY 2017-18) ITO V. SHRI RAM CONSTRUCTION 5 | P A G E FROM SMT. SUNITA KHATRI, U/S. 68 OF THE IT ACT, 196 1 WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAS NOT PRODUCED THE DOCUMENTARY EVIDENCES IN SUPPORT OF THE CLAIM REGARDING SOURCE OF PAYMENT MADE BY SMT. SUNITA KHATRI. 02. WHETHER ON THE BASIS OF THE FACTS AND CIRCUMSTA NCES OF THE CASE THE LD. CIT(A) HAS ERRED IN NOT GIVING OPPORTUNITY FOR CROSS VERIFICAT ION OF DOCUMENTS PRODUCED DURING THE COURSE OF APPELLATE PROCEEDINGS AS PER PROVISIONS O F RULE 46A OF THE INCOME TAX RULES, 1962. 4.1 BEFORE US, BOTH THE PARTIES RELIED ON THE ORDER BY THE REVENUE AUTHORITY AS FAVOURABLE TO IT. THE LD. DR, SH. KHANDEL, WOULD EM PHASIZE THAT IT WAS INCUMBENT ON THE LD. CIT(A) TO HAVE RECORDED REASON/S FOR THE ADMISSION OF THE DOCUMENTS FURNISHED BY THE ASSESSEE BEFORE HIM FOR THE FIRST TIME, AND WHICH COULD ONLY BE ON THE SATISFACTION OF THE CONDITION/S SPECIFIED U/R. 46A OF THE INCOME TAX RULES, 1962, MANDATORY IN CHARACTER. IN ANY CASE, HE OUGHT TO HAVE, BEFORE RELYING THEREON, CONFRONTED THE SAME TO THE AO, SEEKING HIS REPORT/COMMENTS THEREON. ON AN ENQUIRY BY THE BENCH AS TO THE APPLICABILITY OF R. 46A(4), HE WOULD SUBMIT THAT THE SAME IS INAPPLICABLE IN THE FACTS OF THE CASE, AS IT IS NOT A CASE WHERE THE FIRST APPELLATE AUTHORITY HAD, IN EXERCISE OF ITS POWER THEREUNDER, CALLED FOR OR DIRECTED THE PRODUCTION OF ANY MATERIAL BEFORE HIM TO ENABLE HIM TO DISPOSE OF AN APPEAL OR FOR ANY OTHER SUBSTANTIAL CAUSE. THE DOCUMENTS RELI ED UPON BY HIM WERE FURNISHED BEFORE HIM BY THE ASSESSEE IN SUBSTANTIATION OF ITS CASE, AND WHICH IT OUGHT TO HAVE BEFORE THE ASSESSING AUTHORITY, WHOSE SATISFACTION THE LAW CONTEMPLATES. 4.2 SH. BARDIA WOULD SUBMIT THAT ALL THE DOCUMENTS FURNISHED BY THE ASSESSEE BEFORE THE LD. CIT(A), THOUGH NO DOUBT SUO MOTU , WERE ALREADY ON THE FILE OF THE AO INASMUCH AS HE WAS, AS APPARENT FROM THE ASSESSM ENT ORDER, ALSO THE ASSESSING OFFICER OF THE CREDITOR FOR THE RELEVANT YEAR AS WE LL AS IN FACT FOR THE PRECEDING YEAR. ADVERTING TO THE CREDITORS BANK STATEMENT FO R THE RELEVANT YEAR (F.Y. 2016- 17), COPY OF WHICH WAS SUBMITTED ALONG WITH THE WRI TTEN SUBMISSIONS DATED 28/12/2020 TO THE TRIBUNAL, HE SOUGHT TO EXPLAIN EA CH OF THE THREE CREDITS DATED 27/6/2016; 05/7/2016 AND 16/7/2016 TO THE ASSESSEE- FIRM WITH REFERENCE TO THE BALANCE OBTAINING AS ON 01/4/2016, I.E., . 55.36 LACS, OR THE SUMS RECEIVED BY SMT. ITA NO. 21/JAB/2020 (AY 2017-18) ITO V. SHRI RAM CONSTRUCTION 6 | P A G E SUNITA KHATRI DURING THE YEAR FROM M/S. BALAJI INFR ASTRUCTURE BY WAY OF ADVANCE AGAINST LAND. ON A QUERY BY THE BENCH THAT THE SUMS RECEIVED BY HER THEREFROM HAD BEEN, AS STATED IN THE ASSESSMENT ORDER, INVESTED I N AN IMMOVABLE PROPERTY, HE WOULD SUBMIT IT TO BE NOT SO INASMUCH AS, AS APPARE NT FROM THE BANK STATEMENT, ALL THE THREE RECEIPTS UNDER REFERENCE WERE DULY REFLEC TED AS DEBITS THEREIN, AND WHICH IN TURN WERE EXPLAINED WITH REFERENCE TO THE CREDIT S THEREIN DURING THE RELEVANT YEAR OR THE PRECEDING YEAR, ALL DULY ACCOUNTED, FOR WHIC H HE WOULD ALSO REFER TO HER BALANCE-SHEET AS ON 31/3/2017 (PB PG.48). 5. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. 5.1 WE FIRSTLY OBSERVE THAT THE REVENUES OBJECTION TO THE IMPUGNED ORDER IS NOT ON MERITS, BUT QUA PROCEDURE. ALL THAT, THEREFORE, THE ASSESSEE WAS R EQUIRED TO SHOW US WAS THAT THE SUPPORTIVE DOCUMENTS FURNISHED BEFO RE THE LD. CIT(A) WERE NOT SO FOR THE FIRST TIME, AND HAD BEEN FURNISHED DURING T HE ASSESSMENT PROCEEDINGS, WHILE, AS WE SHALL PRESENTLY SEE, EVEN THE CERTIFIC ATE TO THE PAPER-BOOK IS WRONG. NO CASE HAS BEEN MADE BY THE ASSESSEE IN DEFENCE; S H. BARDIA, BEFORE US ALSO UNDERLINING THE GENUINENESS OF THE CREDITS UNDER RE FERENCE, I.E., ON THE MERITS OF THE CASE, WITH REFERENCE TO THE MATERIAL BEFORE THE LD. CIT(A), AND NOT ADDRESSING THE REVENUES GROUNDS. THE EVIDENCE FURNISHED BY THE ASSESSEE FOR THE FIRS T TIME BEFORE THE FIRST APPELLATE AUTHORITY IN THE INSTANT CASE HAS BEEN AD MITTED BY HIM WITHOUT STATING ANY REASON FOR THE NON-PRODUCTION THEREOF BEFORE THE AS SESSING AUTHORITY, SUBJECT TO THE SATISFACTION OF WHICH CONDITION PRECEDENT, TO BE RE CORDED BY HIM IN WRITING, IS THE FIRST APPELLATE AUTHORITY EMPOWERED TO ADMIT ADDITI ONAL EVIDENCE PRODUCED BEFORE HIM (R. 46A(1) & (2)). TWO, THE RELIANCE THEREON IS TO BE FURTHER SUBJECT TO THE SAME BEING EXAMINED BY THE AO AS WELL AS HE BEING A LLOWED REASONABLE OPPORTUNITY TO PRODUCE EVIDENCE OR WITNESS IN REBUT TAL OF THE EVIDENCE ADMITTED (R. 46A (3)). THE IMPUGNED ORDER (IO) IS SILENT ON BOTH THESE ASPECTS, AND ON WHICH ALONE IT HAS BEEN ASSAILED BEFORE US BY THE REVENUE . THERE IS EVEN NO FINDING BY ITA NO. 21/JAB/2020 (AY 2017-18) ITO V. SHRI RAM CONSTRUCTION 7 | P A G E HIM OF THE DOCUMENTS FURNISHED BEFORE HIM (REFER PA RA 4.1.2 OF THE IO) AS HAVING BEEN FURNISHED BEFORE THE AO. RULE 46A IS MANDATORY IN CHARACTER. THE LAW IN THE MATTER IS TRITE, ADMITTING OF NO TWO VIEWS. THE SAM E, QUITE CLEARLY, IS TOWARD OBSERVING THE PRINCIPLES OF NATURAL JUSTICE. THIS W OULD BE MORE SO IN A CASE AS THE PRESENT ONE AS THE SATISFACTION QUA THE GENUINENESS OF A CREDIT, WHICH THE LAW MANDATES IF IT IS NOT TO BE REGARDED AS UNEXPLAINED AND DEEMED AS INCOME U/S. 68, IS OF THE AO, AND OF NO OTHER AUTHORITY. THE PURVIE W OF AN APPELLATE AUTHORITY, ON MERITS, THEREFORE, IS ONLY AS TO IF THE AO WAS, IN THE GIVEN FACTS AND CIRCUMSTANCES, I.E., IN VIEW OF THE EXPLANATIONS AND EVIDENCE FURN ISHED BEFORE HIM, JUSTIFIED, OR NOT SO, IN BEING NOT SATISFIED AS TO THE NATURE AND SOU RCE OF THE CREDIT HAVING BEEN PROVED. THE REVENUES CASE IS, IN PRINCIPLE, UNEXCE PTIONAL. THE MERITS OF THE CASE, AS AFORE-NOTED, IS NOT IN QUESTION INASMUCH AS THE MATERIAL WITH REFERENCE TO WHICH THE IMPUGNED CREDITS ARE BEING SOUGHT TO BE PROVED OR ESTABLISHED WAS NOT BEFORE THE AO, WHOSE SATISFACTION THE LAW MANDATES. 5.2 FURTHER, EVEN APART FROM THE IMPUGNED ORDER AND THE ARGUMENTS BEFORE US, WE HAVE CAREFULLY PERUSED THE MATERIAL ON RECORD. N ONE OF THE DOCUMENTS LISTED AT PARA 2.2 ABOVE, SAVE THE CONFIRMATION FROM, AND THE INCOME-TAX RETURNS OF, THE CREDITOR, STAND FURNISHED BEFORE THE AO (VIDE ASSES SEES REPLIES DATED 13/12/2019 & 25/12/2019/PB PGS.103-108). WHY, EVEN THE CREDITO RS BANK STATEMENT FOR THE CURRENT OR THE PRECEDING YEARS THE RELEVANT SUM B EING STATED AS RECEIVED BY THE CREDITOR IN PART PRIOR TO THE CURRENT YEAR, TO ESTA BLISH THE NATURE AND SOURCE OF THE CREDITS, WERE NOT FURNISHED BEFORE THE AO. IT IS THE BANK STATEMENT/S THAT WOULD CONCLUSIVELY PROVE OF THE SAME AS HAVING BEEN ACTUA LLY RECEIVED FROM HER . WHY, WHILE THE AO STATES OF THE CREDITOR HAVING RECEIVED .70 LACS DURING THE YEAR FROM BALAJI INFRASTRUCTURE, HER BANK STATEMENT, ADVERTED TO DURING HEARING, REFLECTS RECEIPT OF . 37.50 LACS FROM THE SAID COMPANY, TO WHICH REFERE NCE WAS MADE BY SH. BARDIA. THE FINDING BY THE LD. CIT(A) AS TO THE BOOKS OF ACCOUNT OF SMT. SUNITA KHATRI HAVING BEEN VERIFIED BY THE AO (AT PARA 4.1. 1) IS NOT BORNE OUT BY THE ITA NO. 21/JAB/2020 (AY 2017-18) ITO V. SHRI RAM CONSTRUCTION 8 | P A G E RECORD, I.E., THE SUBMISSIONS BY THE ASSESSEE BEFOR E THE AO (PB PGS.92-108) OR BEFORE THE LD. CIT(A)(PB PGS. 23-91); THERE BEING I N FACT NOTHING ON RECORD TO SHOW OF THE SAME HAVING BEEN PRODUCED BEFORE HIM. AS REGARDS THE DOCUMENTS SUBMITTED BY THE ASSESSE B EFORE THE AO, THE CONFIRMATION COULD AT BEST PROVE THE IDENTITY OF TH E CREDITOR, WHICH IS IN ANY CASE NOT IN DISPUTE. FURTHER, THE OBJECTION BY THE AO ON MERITS IS WITH REFERENCE TO THE CREDITORS RETURN FOR THE CURRENT YEAR (FURNISHED O N 13/12/2019), I.E., THAT THE AMOUNT REALISED BY WAY OF SALE OF PROPERTY STANDS I NVESTED BY THE CREDITOR FOR THE PURCHASE OF A PROPERTY, CLAIMING EXEMPTION U/S. 54 IN ITS RESPECT, AND WHICH HAS IN FACT NOT BEEN ADDRESSED BY THE LD. CIT(A) IN HIS OR DER. TRUE, A COPY OF THE AGREEMENT FOR THE PURCHASE OF A PROPERTY BY THE CRE DITOR FROM THE ASSESSEE-FIRM, STANDS ALSO FURNISHED TO THE AO VIDE ITS LETTER DA TED 25/12/2019. WE SHALL ADVERT TO THE RELEVANCE OF THIS DOCUMENT LATER. ALL THAT W E CAN SAY AT THIS STAGE IS THAT THE SAME DOES NOT APPEAR TO BE TOWARD ESTABLISHING EITH ER THE CAPACITY OF THE CREDITOR OR THE GENUINENESS OF THE IMPUGNED CREDITS, NATURE WHEREOF IS STATED AS UNSECURED LOAN OR ADVANCE AGAINST BUILDING (AND NOT AGAINS T BOOKING AS STATED IN THE IO). CONTINUING FURTHER, SURE, SOME OF THE MATERIALS AD DUCED BEFORE THE LD. CIT(A) MAY BE WITH THE AO, I.E., IN THE FILE OF THE CREDITOR (SUNITA KHATRI). THAT, HOWEVER, IS NO REASON FOR THE ASSESSEE NOT TO FURNI SH THE SAME BEFORE ITS AO. RATHER, TO BE FAIR TO IT, WE DO NOT FIND ANY REPLY BY THE ASSESSEE ON RECORD TO THAT EFFECT, I.E., STATING OF ANY DOCUMENT ON THE FILE O F THE CREDITOR WITH THE AO, TO BE THEREFORE TAKEN ON RECORD IN THE CASE OF THE ASSESS EE. TO WHAT PURPOSE THEN, ONE MAY ASK, THE STATEMENT THAT THE CREDITOR IS ASSESSE D WITH THE SAME AO, WHO CANNOT POSSIBLY TAKE ON RECORD THE SAID DOCUMENTS, EVEN IF RELEVANT, FOR THE PURPOSE OF ESTABLISHING THE CREDIT/S, NOR COULD POSSIBLY BE EX PECTED TO CULL OUT THE RELEVANT DOCUMENTS FROM THE FILES OF THE OTHER ASSESSEES WIT H HIM? AS REGARDS THE OBSERVATION BY THE AO THAT THE AMOUNT REALISED BY T HE CREDITOR ON THE SALE OF IMMOVABLE PROPERTY DURING THE YEAR ( . 73.63 LACS) HAS BEEN INVESTED BY HER FOR THE PURCHASE OF ANOTHER PROPERTY, CLAIMING EXEMPTIO N U/S. 54, IT IS NOT CLEAR AS TO ITA NO. 21/JAB/2020 (AY 2017-18) ITO V. SHRI RAM CONSTRUCTION 9 | P A G E WHETHER THE SAME IS, AS APPEARS TO BE THE CASE, SOL ELY ON THE BASIS OF THE CREDITORS RETURN, OR ALSO TAKES INTO ACCOUNT THE SAID PURCHAS E AGREEMENT WITH THE ASSESSEE. ALL ONE CAN SAY IS THAT WHERE THE EXEMPTION U/S. 54 STANDS ALLOWED IN REGULAR ASSESSMENT, WHICH THOUGH DOES NOT APPEAR TO BE THE CASE, IT CAN BE REASONABLY INFERRED THAT THE SAID PURCHASE AGREEMENT IS CONSIS TENT WITH THE SAID CLAIM. FURTHER, INASMUCH AS THE AO HAS DRAWN A NEGATIVE INFERENCE I N THE MATTER, WE, THOUGH NOT OTHERWISE INCLINED TO CONSIDER THE MERITS OF THE CA SE, HAVING BEEN NOT RAISED BY THE REVENUE, SHALL ADVERT TO THIS ASPECT OF THE MATTER AT A LATER STAGE. THE SAID STATEMENT IS THOUGH INCONSISTENT WITH THE ASSESSEE S BANK ACCOUNT WHICH, AS AFORE- STATED, REFLECTS RECEIPT OF ONLY . 37.50 LACS PRIOR TO THE TRANSFERS TO THE ASSESSEE . 5.3 THE MATTER, CLEARLY, REQUIRES BEING EXAMINED BY THE AO WITH REFERENCE TO MATERIAL, SINCE ADMITTED BY THE LD. CIT(A). IT WOUL D, THEREFORE, BE ONLY PROPER TO REMIT THE MATTER BACK TO THE FILE OF THE LD. CIT(A) FOR A COMPLIANCE OF THE REQUIREMENT OF RULE 46A(3). WE ARE CONSCIOUS, WHEN WE SAY SO, THAT IMPLICIT THEREIN IS THE VALIDATION OF THE ADMISSION OF THE A DDITIONAL EVIDENCE BY THE LD. CIT(A), EVEN AS THERE HAS CLEARLY BEEN, AS AFORE-NO TED, NON-SATISFACTION OF THE CONDITIONS SPECIFIED IN R. 46A(1) AND R. 46A(2), ON LY SUBJECT TO WHICH COULD AN ADDITIONAL EVIDENCE BEFORE THE FIRST APPELLATE AUTH ORITY BE ADMITTED BY HIM, LEADING TO HIS PLACING RELIANCE THEREON, AT WHICH STAGE R. 46A(3), WARRANTING THE SAME BEING FIRST CONFRONTED TO THE AO AND SEEKING HIS ADJUDICA TION UPON CONSIDERING THE SAME, ALSO UN-COMPLIED WITH, COMES INTO PLAY. AT THE SAME TIME, WE FIND THAT THE AO OBSERVES THAT THE CREDITOR, SUNITA KHATRI, HAD RECE IVED AMOUNTS (IN WHATEVER SUM) FROM BALAJI INFRASTRUCTURE (WHETHER AS ADVANCE AGAI NST LAND OR ON SALE THEREOF), AND WHICH HAD IN TURN BEEN TRANSFERRED TO THE ASSESSEE- FIRM (WHETHER AS ADVANCE OR FOR PURCHASE OF PROPERTY OR AS LOAN). THIS SAID OBSERVA TION IS, APART FROM THE CREDITORS RETURN, AS IT APPEARS, ALSO BASED ON THE INFORMATIO N GATHERED BY HIM IN THE CREDITORS CASE. BE THAT AS IT MAY, THE DOUBT IN IT S RESPECT COULD THEREFORE PRINCIPALLY BE WITH REFERENCE TO THE NATURE OF THE CREDIT WHICH WOULD IN FACT STAND ITA NO. 21/JAB/2020 (AY 2017-18) ITO V. SHRI RAM CONSTRUCTION 10 | P A G E TO BE DETERMINED WITH REFERENCE TO THE UNDERLYING D OCUMENTS/ARRANGEMENTS, NOT BEFORE THE AO, AND NOT AS TO ITS SOURCE . THAT IS, EVEN IF NOT SUBSTANTIATED, OR FULLY EXPLAINED, THERE IS NO SUGGESTION OF THE IMPUGNED C REDITS AS BEING EITHER UNACCOUNTED FOR OR AS NOT GENUINE, EXCEPT OF COURSE WHERE THE GENUINENESS OF THE AGREEMENTS/UNDERSTANDING ITSELF IS IN DOUBT, OF WHI CH THERE IS THOUGH NO WHISPER. WE EXCLUDE REFERENCE TO THE QUANTUM HERE BECAUSE, A DMITTEDLY, A PART OF THE SUM GIVEN TO THE ASSESSEE ( .80.50 L) STANDS RECEIVED BY THE CREDITOR DURING AN EARLIER YEAR, SO THAT THE DIFFERENCE IN ITS RESPECT BETWEEN THE AOS STATEMENT, BASED ON THE CREDITORS RETURN, AND HER BANK STATEMENT, NOT BEFO RE HIM, COULD BE FOR THAT REASON. THE ASSESSEE SURELY OUGHT TO HAVE BEEN FAIR & FORTH RIGHT ENOUGH, AND CLARIFIED THESE ASPECTS DURING HEARING; RATHER, BEF ORE THE FIRST APPELLATE AUTHORITY ITSELF, WHILE EVEN BEFORE US THE THRUST OF THE ARGU MENTS BY SH. BARDIA, WHO ALSO REPRESENTED BEFORE THE REVENUE AUTHORITIES, WAS ON THE MERITS, CANVASSING THE ASSSESSEES CASE WITH REFERENCE TO THE CREDITORS B ANK STATEMENT, NOT BEFORE THE AO, AND EVEN AS THE MERITS OF THE ADJUDICATION HAD NOT BEEN CHALLENGED BEFORE US, BEING IN FACT PREMATURE AS, AS FOUND, THE RELEVANT MATERI ALS, FURNISHED BEFORE THE LD. CIT(A), WERE NOT BEFORE THE ASSESSING AUTHORITY. TH E CERTIFICATE BY SH. BARDIA BELOW THE PAPER-BOOK, AS REQUIRED BY THE TRIBUNAL R ULES, INSOFAR AS IT RELATES TO THE DESCRIPTION OF THE LOWER AUTHORITY BEFORE WHOM THE DOCUMENT WAS FILED (COL. 4), IS WRONG IN RESPECT OF THE DOCUMENTS SPECIFIED AT S R. NOS. 4 (PB PGS. 9-17) & 6 (PB PGS. 23-91). THIS IS CLEARLY UNFORTUNATE, AS IN DEED IS THE FILING OF THE DOCUMENTS AT THE FAG-END OF THE PROCEEDINGS; THE AS SESSMENT GETTING TIME BARRED ON 31/12/2019. NOT ONLY IS THE AO CONSTRAINED FOR TIME TO VERIFY OR EXAMINE THE SAME, NO CLARIFICATION, WHERE REQUIRED, COULD BE FU RNISHED BY THE ASSESSEE, I.E., NO MEANINGFUL EXERCISE UNDERTAKEN, RESULTING IN MATTER S GETTING UNNECESSARILY DRAGGED BEFORE THE APPELLATE AUTHORITIES. ALL THIS AGAIN PO INTS TO THE POOR CONDUCT OF THE REPRESENTATION IN THE PROCEEDINGS BEFORE THE AO, WH ICH IN FACT FORM THE FOUNDATION OF ANY ASSESSMENT, HEARING WHEREIN, AS APPARENT FRO M THE TITLE TO THE ASSESSMENT ORDER, CLOSED ON 21/12/2019, SO THAT NO COGNIZANCE OF THE MATERIALS FURNISHED ON ITA NO. 21/JAB/2020 (AY 2017-18) ITO V. SHRI RAM CONSTRUCTION 11 | P A G E 23/12/2019 & 25/12/2019 WAS TAKEN BY THE AO. THE AO , THOUGH CANNOT BE FAULTED WITH INASMUCH AS BOTH THE NATURE AND THE SOURCE NEE D TO BE ESTABLISHED, THE BURDEN OF WHICH IS ON THE ASSESSEE, WHO ONLY IS IN THE POS SESSION OF THE RELEVANT MATERIAL AND EXPLANATIONS, SURELY OUGHT TO HAVE REPRESENTED BEFORE THE LD. CIT(A) WHO ALLOWED HIM OPPORTUNITY TO DO SO (WHICH WAS NOT AVA ILED), BRINGING TO THE FORE THE NONPRODUCTION OF THE RELEVANT MATERIALS BEFORE HIM , I.E., THE VERY ASPECT HE NOW RAISES BEFORE US. THIS WOULD HAVE HELPED RESOLVE TH E ISSUES ARISING OUT OF THE ASSESSMENT, AS WELL AS THOSE OUT OF THE IMPUGNED OR DER, AND WHICH WE HAVE NOW BEEN CALLED UPON TO CONTEND WITH. NO COURSE CORRECTION, AND PRIMARILY FOR THESE REASO NS, WAS CAUSED AT THE FIRST APPELLATE STAGE ALSO. THE MATERIALS FURNISHED BEFOR E HIM FOR THE FIRST TIME BY THE ASSESSE COULD PERHAPS HAVE BEEN CALLED FOR BY THE L D. CIT(A) FROM IT, BUT THAT WOULD ONLY BE WHERE HE HAD, AFTER APPLYING HIMSELF TO THE FACTS AND CIRCUMSTANCES OF THE CASE, INCLUDING THE MATERIALS BEFORE THE AO, COME TO THE CONCLUSION THAT SOME FURTHER WERE REQUIRED, WHILE THE DOCUMENTS FUR NISHED BEFORE THE LD. CIT(A) WERE AT THE VERY OUTSET, I.E., THE BEGINNING OF THE PROCEEDINGS BEFORE HIM, PER THE FIRST LETTER ADDRESSED TO HIM BY THE ASSESSEE-APPEL LANT (PB PGS. 23-25). THAT IS, THERE WAS NO OCCASION FOR HIM TO HAVE CONSIDERED CA LLING FOR ANY OF THE SAID DOCUMENTS. ALSO, AS IT APPEARS, NO INQUIRY STANDS M ADE BY HIM WITH THE ASSESSEE AS TO WHICH OF THOSE DOCUMENTS WERE IN FACT FURNISHED BY THE ASSESSEE BEFORE THE ASSESSING AUTHORITY. THIS, RATHER, GIVES RISE TO TH E QUESTION AS TO WHETHER IT IS A CASE TO WHICH R. 46A(4), WHICH IS AKIN TO RULE 29 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963, WOULD, STRICTLY SPEAKING, AP PLY. THE SAME REFERS TO THE POWER CONFERRED UNDER ORDER 41, RULE 27 OF CPC, 190 8, LAW ON WHICH IS WELL- SETTLED, EVEN WITH REFERENCE TO THE DECISIONS UNDER THE ACT. THE SAID POWER, HOWEVER, HAVING NOT BEEN INVOKED BY THE LD. CIT(A), WE DO NOT CONSIDER IT NECESSARY OR PROPER TO DWELL THEREON. SUFFICE TO ST ATE THAT HE OUGHT TO HAVE, IN THE VIEW OF THE CLEAR MANDATE OF S. 68, RECORDING A CLE AR FINDING IN THE MATTER, REQUIRED THE AO, BEFORE WHOM THE BURDEN OF PROOF IS REQUIRED TO BE DISCHARGED BY THE ITA NO. 21/JAB/2020 (AY 2017-18) ITO V. SHRI RAM CONSTRUCTION 12 | P A G E ASSESSEE, TO EXAMINE THE SAME. REFERENCE HERE MAY A LSO BE MADE TO TIN BOX CO. V. CIT [2001] 249 ITR 216 (SC), EXPLAINING THAT AN OPPORT UNITY BEFORE AN APPELLATE AUTHORITY DOES NOT SUBSTITUTE THAT BEFORE THE ASSES SING AUTHORITY. THE COURSE SUGGESTED BY US FOR BEING FOLLOWED BY T HE LD. CIT(A) SUPRA, IS EQUALLY VALID FOR US, BEING IN FACT THE DICTATE OF JUSTICE IN THE FACTS AND CIRCUMSTANCES OF THE CASE. AS EXHORTED BY THE APEX COURT TIME AND AGAIN, AS IN CIT V. WALCHAND & CO. (P.) LTD . [1967] 65 ITR 381 (SC), WHEREIN, EXPOUNDING ON THE JURISDICTION AS WELL AS THE DUTY OF THE TRIBUNA L AS THE FINAL FACT FINDING BODY, IT EXPLAINED THAT IT IS TO DEAL WITH AND DETERMINE QUE STIONS WHICH ARISE OUT OF THE SUBJECT-MATTER OF THE APPEAL IN THE LIGHT OF THE EV IDENCE, AND CONSISTENTLY WITH THE JUSTICE OF THE CASE. 6. FOR THE REASONS AFORE-STATED, NOTWITHSTANDING TH E NON-SATISFACTION OF THE CONDITIONS OF R. 46A(1)/(2), AS INDEED OF R. 46A(3) , THE ISSUE WITH REGARD TO THE MAINTAINABILITY OF THE IMPUGNED CREDITS U/S. 68 IS RESTORED TO THE FILE OF THE AO. HE SHALL BE AT LIBERTY TO REQUIRE, BESIDES THE DOCUMEN TS FURNISHED BY THE ASSESSEE BEFORE THE LD. CIT(A), ANY OTHER AS HE MAY DEEM FIT AND PROPER UNDER THE CIRCUMSTANCES. LIKEWISE, THE ASSESSEE IS NOT CONSTR AINED IN ANY MANNER. THE WHOLE PURPOSE OF THE OPEN SET ASIDE IS A PROPER DECISION ON THE MERITS OF THE CASE, I.E., U/S. 68, LAW ON WHICH IS WELL-SETTLED. WE MAY HERE ALSO EXPRESS OUR VIEW WITH REGARD TO TH E ADVERSE INFERENCE DRAWN BY THE AO WITH REGARD TO THE CREDITORS CLAIM U/S. 54, SINCE ALLOWED. THE SAID CLAIM CANNOT BE CALLED INTO QUESTION IN THE IN STANT PROCEEDINGS. IN FACT, THE AO ALSO DOESNT DO SO, AND HIS OBJECTION PROCEEDS ON T HE BASIS OF THE SAID CLAIM, I.E., PRESUMING ITS VALIDITY, INASMUCH AS THE AMOUNT REAL IZED BY WAY OF SALE PROCEEDS OF THE PROPERTY BY THE CREDITOR STANDS INVESTED BY HER IN THE PURCHASE OF ANOTHER, CLAIMING SEC.54 EXEMPTION ON THAT BASIS, WHICH DOES NOT APPEAR TO HAVE BEEN EXAMINED IN AN ASSESSMENT AS ELSE THE AO WOULD HAVE REFERRED THERETO, ALSO CITING PERHAPS THE CREDITORS SUBMISSIONS THEREIN, IN SUPP ORT OF HIS OBJECTION. THE SAME IS ITA NO. 21/JAB/2020 (AY 2017-18) ITO V. SHRI RAM CONSTRUCTION 13 | P A G E VALID IN PRINCIPLE INASMUCH AS AN EXEMPTION U/S. 54 (1) IS SUBJECT TO THE CONDITION OF S. 54(2), WHICH PROVIDES FOR THE UTILIZATION OF THE SUM REALIZED ON THE SALE OF A CAPITAL ASSET FOR THE PURCHASE OF AN ELIGIBLE ASSET , AND BEING DEPOSITED IN A DESIGNATED BANK ACCOUNT WHERE NOT SO UTILIZED WITHI N A SPECIFIED TIME, FOR BEING SO UTILIZED UPON WITHDRAWAL FROM THE SAID ACCOUNT, AND WITHIN A DEFINED TIME PERIOD. HOWEVER, THE VALIDITY OR OTHERWISE OF THE SAID EXEM PTION, WE MAY CLARIFY, CANNOT BE OF ANY CONSEQUENCE IN THE INSTANT PROCEEDINGS, U NLESS OF COURSE THE SAME IMPINGES ON THE NATURE AND SOURCE OF THE CREDITS UN DER REFERENCE. EVEN, THEREFORE, ASSUMING THE CONDITION OF S. 54(2) AS NOT SATISFIED FOR THE REASON THAT THE SALE PROCEEDS OF THE PROPERTY STAND, AS CLAIMED, AND AS APPEARS TO BE THE CASE, LOANED OR ADVANCED TO THE ASSESSEE-FIRM, IT WOULD RATHER PROVE THE CREDIT ON THE ANVIL OF S. 68. AGAIN, AS IT APPEARS TO US, IT IS THE ADVAN CE AGAINST BUILDING IN THE ASSESSEES BOOKS, WHICH IS BEING AT THE SAME TIME R EGARDED AS AN INVESTMENT IN PROPERTY QUALIFYING FOR EXEMPTION U/S. 54, IN THE H ANDS OF THE CREDITOR, IN WHOSE BOOKS THE ENTIRE AMOUNT GIVEN TO THE ASSESSEE, WHET HER BY WAY OF LOAN OR OTHERWISE, IS SHOWN AS RECEIVABLE FROM TO IT (PB PG . 48). WHICH OF THE TWO DESCRIPTIONS, I.E., ADVANCE OR INVESTMENT, OR PERHA PS BOTH, IS CORRECT, WOULD ONLY BE DETERMINED ON A PERUSAL OF THE UNDERLYING AGREEM ENT WHICH, AS IT NOW TRANSPIRES, HAVING BEEN FURNISHED AFTER THE CLOSE O F THE HEARING, HAS NOT BEEN CONSIDERED BY THE AO. OUR PURPOSE FOR REFERENCE THE RETO IS TWO-FOLD. ONE, THAT THE PURCHASE AGREEMENT MAY NOT BE RELEVANT AS THE NATUR E OF THE AMOUNTS UNDER REFERENCE IS STATED AS UNSECURED LOAN AND ADVANC E, WHICH ASPECT THE AO SHALL NOW CONSIDER AND CLARIFY. TWO, AND MORE IMPORTANTLY , THAT WHERE THE NATURE AND SOURCE OF THE CREDIT STANDS SUITABLY EXPLAINED, I.E ., WITH REFERENCE TO THE UNDERLYING DOCUMENT/S, THE VALIDITY OR OTHERWISE OF THE S. 54( 1) CLAIM, I.E., IN VIEW OF THE CONDITION OF S. 54(2), WOULD BE OF NO CONSEQUENCE F OR THE PURPOSE OF S. 68, AND NO NEGATIVE INFERENCE THEREFROM, AS SOUGHT TO BE BY TH E AO, COULD BE DRAWN. THE REASON IS SIMPLE. THE ISSUE ON MERITS IS QUA S. 68, I.E., TOWARD FURNISHING A SATISFACTORY EXPLANATION AS TO THE NATURE AND SOURC E OF THE CREDITS IN THE ASSESSEES ITA NO. 21/JAB/2020 (AY 2017-18) ITO V. SHRI RAM CONSTRUCTION 14 | P A G E BOOKS, SO THAT, IRRESPECTIVE OF THEIR TAXABILITY IN THE HANDS OF THE CREDITOR, AN ASSESSEE WITH THE REVENUE, WHERE THE SAME ARE SHOWN BY THE ASSESSEE-FIRM AS ARISING FROM THE CREDITOR, I.E., BE IT SOURCED FROM HER CAPITAL OR CURRENT INCOME OR EVEN HER CONFIRMED LIABILITY, THE ONUS ON IT TO EXP LAIN THE SAME U/S. 68 GETS DISCHARGED, WHICH WOULD SHIFT BACK ONLY ON AN INFIR MITY IN THE ASSESSEES CASE BEING POINTED OUT OR MATERIAL IN REBUTTAL THEREOF B ROUGHT OUT BY THE REVENUE. FURTHER, AS AFORE-NOTED, IT WOULD BE A DIFFERENT MA TTER WHERE THE GENUINENESS OF THE ARRANGEMENT/S UNDER WHICH THE CREDITS ARISE IS IN D OUBT, WHICH HAS TO BE ON SOME COGENT BASIS, AND OF WHICH THERE IS UPTO NOW NO SUG GESTION. THIS ASPECT, THOUGH CONCERNING THE MERITS OF THE ADDITION, WHICH WE ARE NOT CALLED UPON TO ADDRESS, HAS BEEN CLARIFIED INASMUCH AS WHILE THE AO RELIES THER EON, THE LD. CIT(A) HAS NOT EXPRESSED ANY VIEW THEREON, SO THAT IT MAY NOT, AT LEAST IN PRINCIPLE, FORM A BONE OF CONTENTION BETWEEN THE PARTIES OR SURVIVE OUR ADJUD ICATION, WHICH HAS BEEN SOUGHT TO BE GUIDED BY THE DECISION IN WALCHAND & CO . (P.) LTD . (SUPRA). WE DECIDE ACCORDINGLY. 7. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIS TICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON JANUARY 2021 SD/- SD/- (N.R.S.GANESAN) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: /01/2021 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT: M/S. SHRI RAM CONSTRUCTION, 1-SIMPLE X ESTATE, NAGPUR ROAD, MADAN MAHAL WARD, JABALPUR, 482 001, M.P. 2. INCOME TAX OFFICER, WARD 2(3), 2 ND FLOOR, ANNEXE BUILDING, AAYAKAR BHAWAN, NEAR RUSSEL CHOWK, JABALPUR 482001 (MP). 3. THE CONCERNED C.I.T.: PR. CCIT, BHOPAL 4. THE CIT(APPEALS)1, JABALPUR 5. THE SR. DR, ITAT 6. GUARD FILE