ITO, New Delhi V. Prominent Insurance Brokers Pvt. Ltd., New Delhi

ITA 2494/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61595 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-04-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 07-02-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 13-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RENUKA JAIN GUPTA
• Keywords: Bogus purchase; Gift; Principle of natural justice; Opportunity of cross examination; Third party statement; Accommodation entries; Assessment record
• Section: 143(3); 133(6); 68; 145; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH `F : NEW DELHI) BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER AND SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER ITA NO.2494/DEL./2011 (ASSESSMENT YEAR : 2008-09) ITO, WARD 14(4), VS. PROMINENT INSURANCE BROKERS PVT. LTD., NEW DELHI. C-52, VIVEK VIHAR, NEW DELHI. (PAN/GIR NO.AADCP3196J) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI KAPIL GOEL, ADV. REVENUE BY : SMT. RENUKA JAIN GUPTA, SR.DR ORDER PER U.B.S. BEDI, J.M. THIS APPEAL OF THE DEPARTMENT IS DIRECTED AGAINST THE ORDER PASSED BY CIT(A)- XVII, NEW DELHI DATED 28.2.2011 RELEVANT TO ASSESS MENT YEAR 2008-09 WHEREBY DELETION OF ADDITION OF RS.1,10,00,000/- MADE BY THE ASSESSI NG OFFICER U/S 68 OF I.T. ACT, 1961 ON ACCOUNT OF UNEXPLAINED TRANSACTION HAS BEEN CHALLEN GED. 2. ASSESSING OFFICER WHILE MAKING THE IMPUGNED ADDI TION HAS OBSERVED AT PAGES 2 & 3 OF HIS ORDER AS UNDER: IN THE MEANWHILE IT WAS NOTICED THAT DURING THE PE RIOD UNDER CONSIDERATION THE ASSESSEE HAS RECEIVED RS.1,10,00,000/- FROM THE COM PANIES. HE WAS ASKED TO SHOW CAUSE BY ORDER SHEET ENTRY DATED 22.12.2010 WH Y A TRANSACTIONS OF RS. 1,10,00,000/- MADE DURING THE YEAR UNDER CONSIDERAT ION SHOULD NOT BE TREATED AS YOUR INCOME U/S 68 AND ALSO ASKED TO PRODUCE THE PA RTIES. THE ASSESSEE COMPANY FAILED TO PRODUCE ALL THE PARTIES FOR RECORDING THE IR STATEMENT, THOUGH SPECIFICALLY ASKED FOR, THE IDENTITY, GENUINENESS AND CREDITWORT HINESS FOR THESE PARTIES COULD NOT BE ESTABLISHED BY THE ASSESSEE. SINCE THE ASSES SEE IS A PRIVATE LIMITED COMPANY IN THE CASE OF SUCH COMPANIES THERE IS CLOSE AND PR OXIMATE RELATIONSHIP BETWEEN THE COMPANY AND THERE SHOULD HAVE BEEN NO DIFFICULT Y ON THE PART OF ASSESSEE TO PRODUCE SOMEBODY FOR IDENTIFICATION. THE ASSESSEE K NOWS THE PARTIES AND HE MADE I.T.A. NO.2494/DEL./2011 (A.Y. : 2008-09) 2 THE TRANSACTION MADE WITH THEM THE ONUS LIES ON HIM TO PRODUCE THE PARTIES WITH WHOM THE TRANSACTIONS ARE MADE. THE MERE FILING OF THE PAPERS DOESN'T PROVE THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF TRANS ACTIONS AS REQUIRED BY SEC. 68 OF THE I.T. ACT. THE ASSESSEE HAS FAILED TO DISCHAR GE HIS OBLIGATION/ONUS U/S 68 WITH REGARD TO THE CREDITWORTHINESS AND GENUINENESS OF TRANSACTION AND IDENTIFICATION, ADEQUATE OPPORTUNITIES WERE GIVEN T O THE ASSESSEE BUT REMAIN UNCOMPLIED THOUGH THE ASSESSEE HAS TAKEN A CONTENTI ON THAT MONEY SO RECEIVED IS THE REFUND OF LOAN OF EARLIER ADVANCE. SINCE THIS O FFICE IS QUITE SATISFIED THAT MONEY SO RECEIVED IS AN UNDISCLOSED SOURCE FOR WHIC H ASSESSEE HAS DELIBERATELY TRIED TO DIVERT THE ATTENTION FROM THE CRORE ISSUE THEREFORE I LEFT NO OPTION BUT TO ADD TRANSACTION AS AN INCOME FROM OTHER SOURCE IN T HE HANDS OF THE ASSESSEE U/S 68 OF THE I.T. ACT. 3. THE ASSESSEE TOOK UP THE MATTER IN APPEAL AND CH ALLENGED THE IMPUGNED ADDITION MADE U/S 68 OF THE I.T. ACT, 1961 ON FOLLOWING COUN TS: THAT MERE BASIS OF MAKING ADDITION IS STATEMENT OF ONE MR TARUN GOEL CA WHO'S STATEMENT IS NEITHER CONFRONTED TO YOUR APPEL LANT DESPITE SPECIFIC REQUEST NOR THE SAID PERSON IS OFFERED FOR CROSS EXAMINATIO N TO ASSESSEE HEREIN. THAT IS, IN THESE FACTS THE STATED THIRD PARTY STATEMENT BECOME S ZERO IN EVIDENTIARY VALUE AS HELD BY SC IN KISHAN CHAND CHELLA RAM 125 ITR 713 S PECIALLY WHEN THERE IS NO MATERIAL EXCEPT SAID STATEMENT TO SUPPORT THE SAID ADDITION. THIS IS THE VIEW OF JURISDICTIONAL DHC IN FOLLOWING CASES: * ASHWANI GUPTA 322 ITR 396 * CIT VS SMC SHARE BROKERS LTD. 288 ITR 345 * FLAWLESS HOLDING & INDUSTRIES LTD. I.T. ACT, 1961 400/2010. * FURTHER, WE FIND WE FIND THAT THE DEPARTMENT HAS NOT CONTROVERTED THE CHARGE OF THE ASSESSEE THAT ADDITIONS WERE MADE ON GENERAL STATEMENTS AND MORE IMPORTANTLY, NO OPPORTUNITY FOR CROSS-EXAMINAT ION WAS PROVIDED TO THE ASSESSEE AND HENCE, ASSESSMENT ORDER HAS BEEN R IGHT SET ASIDE. * FURTHER ORDER OF DELHI BENCH OF ITAT IN PAWAN KUM AR GUPTA IS TO THE SAME EFFECT. * FURTHER, BHC IN OR. PRABHU SANTOSH KAMLESH HAS HE LD AS UNDER: THE ASSESSING OFFICER PURPORTEDLY RELIED UPON A TELEPHO NIC CONVERSATION WHICH HE HAD WITH THE DONOR. THE TRIBUNAL WAS JUSTIFIED I N HOLDING THAT THE TRANSCRIPT OF THE ALLEGED TELEPHONIC CONVERSATION C OULD NOT BE USED AGAINST THE ASSESSEE SINCE THE CONVERSATION WAS RECORDED BE HIND THE BACK OF THE ASSESSEE AND THE ASSESSEE HIMSELF WAS NOT GIVEN AN OPPORTUNITY OF CROSS I.T.A. NO.2494/DEL./2011 (A.Y. : 2008-09) 3 EXAMINATION. IN ANY EVENT IN THE COURSE OF THE CONV ERSATION THE DONOR CONFIRMED HAVING FURNISHED THE GIFT ... * FURTHER, AHD. BENCH OF ITAT IN SUMAN SILK MILLS ( P) LTD ITA NO. 3794/AHD/2008: DUTY OF AO WHEN RELYING UPON THIRD P ARTY STATEMENT CLAIMING TO BE OWNER OF NO OF ENTITIES ALLEGEDLY RU N BY HIM TO ACCOMMODATE ASSESSEE FOR ISSUING BOGUS PURCHASE BIL LS: INCUMBENT UPON AO TO ENQUIRE FROM OSTENSIBLE OWNERS: HELD - MERELY ISSUING SUMMONS BY THE AO TO ROHIT PANWALA I S NOT ENOUGH TO DISCHARGE THE ONUS WHICH HAS TO BE ENSURED THAT ROH IT PANWALA ATTENDS HIS OFFICE AND ASSESSEE ATTENDS HIS OFFICE AND HE IS OF FERED FOR CROSS EXAMINATION BY THE ASSESSEE. THE ENTIRE CASE OF THE REVENUE REVOLVES AROUND THE STATEMENT OF ROHIT PANWALA. SINCE NO CRO SS EXAMINATION OF ROHIT PANWALA IS ALLOWED TO THE ASSESSEE THEN HIS S TATEMENT RECORDED AT THE BACK OF THE ASSESSEE CANNOT BE READ IN EVIDENCE AGA INST HIM. ACCORDINGLY, WE ARE OF THE CONSIDERED VIEW THAT THERE IS VIOLATI ON OF NATURAL JUSTICE AND, THEREFORE, ADDITION CANNOT BE MADE ON THE BASIS OF SUCH STATEMENT OF ROHIT PANWALA ALONE. WE ACCEPT THE ARGUMENTS OF ID. AR TH AT ALL THE CONCERNS FROM WHOM ASSESSEE HAS SHOWN TO HAVE MADE PURCHASES OF COLOUR AND CHEMICALS ARE OWNED BY DIFFERENT PERSONS. IT WAS IN CUMBENT ON THE AO TO CALL THESE PERSONS OR PROVE THAT THEY WERE NONEXIST ENT. IF THERE ARE SOME EXISTING OWNERS OF THESE CONCERNS THEN THEIR STATEM ENTS SHOULD HAVE BEEN RECORDED AND THESE PERSONS SHOULD HAVE ALSO BEEN OF FERED FOR CROSS- EXAMINATION. THE STATEMENT OF ANY OTHER PERSON CLAI MING TO BE THE OWNER OF THESE CONCERNS APPLYING TO THE FACTS OF ASSESSEE 'S CASE CANNOT BE BLINDLY RELIED UPON WITHOUT CONFRONTING THE OSTENSIBLE OWNE R. SINCE NO ENQUIRY/INVESTIGATION HAS BEEN CARRIED OUT INTO THE EXISTENCE OF OSTENSIBLE OWNER THE RELIANCE OF THE AO MERELY ON THE STATEMEN T OF ROHIT PANWA/A IS VITIATED ... MERELY ON THE STRENGTH OF STATEMENT OF ROHIT PANWA/A IT CANNOT BE HELD THAT PURCHASES ARE BOGUS. THAT IS, SINCE ADMITTEDLY NO ENQUIRY IS CONDUCTED I N PRESENT CASE BY LD AO FROM THREE PARTIES VIS A VIS ALLEGED ADVERSE STA TEMENT OF THIRD PARTY, GIVEN THE FACT THAT THERE IS POSITIVE RESPONSE ON E NQUIRY BY LD AO U/S 133(6) FROM AL/ THREE PARTIES IN SUBJECT ASSESSMENT PROCEEDINGS (REFER PAPER BOOK PAGES 37 TO 98), WE ARE OF THE HUMBLE SU BMISSION THAT SAID THIRD PARTY STATEMENT LOOSES ITS EFFECT IN FAVOR OF DOCUMENTARY EVIDENCE ADDUCED BEFORE LD AO.' 2. THIS IS BASED ON CARDINAL PRINCIPLE OF TAXATION THAT WHEN IT COMES TO ORAL STATEMENT AND DOCUMENTARY EVIDENCE, LATTER SHALL PR EVAIL OVER FORMER AS HELD BY DHC IN ITA 2049/2010: OMEGA COMPONENTS PVT LTD' ... ON ONE HAND THE ASSESSING OFFICER HAS ORAL STATEMENTS MADE BY S HRI RAJAN JASSAL AND SHRI K.K. BANSAL WHEREAS ON THE OTHER HAND, THE ASSESSEE HAS DOCUMENTARY EVIDENCE IN THE FORM OF SHARE APPLICATION, CONFIRMATIONS, INCOM E-TAX RETURNS AND COPY OF BANK I.T.A. NO.2494/DEL./2011 (A.Y. : 2008-09) 4 STATEMENTS OF THESE SHARE HOLDERS. WHEN TWO DIFFERE NT FORMS OF EVIDENCES ARE AVAILABLE, THE SAME HAVE TO BE WEIGHED SIMULTANEOUS LY AND ONE CANNOT BE TAKEN IN ISOLATION DISREGARDING THE OTHER. AFTER THE ASSESSI NG OFFICER HAD ORAL STATEMENTS OF THE TWO PARTIES, THE ASSESSEE PLACED CONTRARY DOCUM ENTARY EVIDENCE. IT IS SETTLED LAW THAT A DOCUMENTARY EVIDENCE WILL ALWAYS CARRY M ORE WEIGHT THAN AN ORAL STATEMENT. AFTER THE ORAL STATEMENTS WERE AVAILABLE TO THE ASSESSING OFFICER, THE ASSESSEE PROVED SUCH ORAL STATEMENTS TO BE INCORREC T BY FILING DOCUMENTARY EVIDENCE. THEREAFTER THE ASSESSING OFFICER DID NOT PROVE THE DOCUMENTARY EVIDENCE TO BE UNTRUE. THE ASSESSING OFFICER NEVER CONFRONTED THE DOCUMENTARY EVIDENCE TO THE PERSONS WHOSE ORAL STATEMENTS WERE RECORDED. THEREFORE, THE ORAL STATEMENTS LOOSE THEIR EVIDENTIARY VALUE IN THE LIG HT OF THE DOCUMENTARY EVIDENCE PLACED BY THE ASSESSEE. ITAT ORDER UPHELD BY DHC . 3. THAT THE AFORESAID MATTER STANDS SQUARELY COVER ED BY DELHI BENCH OF ITA T ORDER IN CASE OF DECENT FOODS (PAPER BOOK PAGES 1 TO 6) WHEREIN IT IS HELD THAT: M/S DECENT FOODS PVT. LTD./ITA NO. 2471/DEL./2010/ 07.12.2010.: HELD: '8. WE HAVE HEARD THE PARTIES AND PERUSED THE MATER IAL ON RECORD. IT REMAINS IRREFUTED THAT THE ASSESSEE COMPANY DID NOT TAKE ANY LOAN FROM THE TWO CONCERNS, THESE CONCERNS WERE ALSO NOT CREDITOR S OF THE ASSESSEE COMPANY. THE AMOUNT OF '8,25,000 HAD BEEN ADVANCED BY THE ASSESSEE TO THE SAID SUPPLIER PARTIES AND WHEN THEY FAILED TO M AKE SUPPLY IN TIME, THESE AMOUNTS WERE REFUNDED TO THE ASSESSEE. IT WAS THIS REFUND WHICH REPRESENTED THE CREDIT ENTRIES OF '8,25, 000. THE A SSESSMENT ORDER DOES NOT SHOW ANY INVESTIGATION HAVE BEEN CARRIED OUT OR ANY INFORMATION COLLECTED BY THE DEPARTMENT TO CONCLUDE THAT THE PAYMENT RECE IVED BY THE ASSESSEE WAS ACTUALLY ACCOMMODATION ENTRIES. IT HAS NOT BEEN SHOWN AS TO HOW THE TWO PARTIES CONCERNED WERE NOT CREDITORS TO THE ASS ESSEE. ONCE THEY ARE NOT ESTABLISHED TO BE CREDITORS. OPERATION OF SECTION 6 8 OF THE I. T. ACT DOES NOT COME INTO PLAY. NO MATERIAL WAS BROUGHT BY THE AD T O PROVE THAT THE MONEY WAS THE ASSESSEE'S OWN UNDISCLOSED INCOME. IT WAS MERELY THAT THE INFORMATION RECEIVED FROM THE INV. WING OF THE DEPA RTMENT WAS RELIED ON, WITHOUT VERIFICATION OF THE FACTS QUA-THE-ASSESSEE. THE ASSESSEE SUCCESSFULLY EXPLAINED THE ENTRIES 9. IN VIEW OF TH E ABOVE, NONE OF THE CASE LAWS RELIED ON BY THE DEPARTMENT IS APPLICABLE, SIN CE THERE IS NO APPLICABILITY OF SECTION 68 OF THE ACT, AS PARTIES CONCERNED WERE NOT CREDITORS OF THE ASSESSEE' 4. THAT INSISTENCE OF LD AO TO PERSONALLY PRODUCE THE STATED PARTIES ON PART OF YOUR HONOR'S APPELLANT, IN OUR HUMBLE SUBMISSION IS MISCONCEIVED AND IS AGAINST THE PROVISIONS OF LAW IN AS MUCH AS POWER T O ENFORCE THE ATTENDANCE OF CREDITOR LIES WITH DEPARTMENT. THIS IS SO HELD BY D ELHI HIGH COURT IN DWARKADISH INVESTMENTS (P) LTD. 194 TAXMAN 43: ONE MUST NOT LO SE SIGHT OF THE FACT THAT IT IS THE REVENUE WHICH HAS ALL THE POWER AND WHEREWITHAL TO TRACE ANY PERSON I.T.A. NO.2494/DEL./2011 (A.Y. : 2008-09) 5 5. THAT BOOKS RESULTS HAVE BEEN ACCEPTED AND THERE IS NO INVOCATION OF SECTION 145 IN PRESENT CASE. FURTHER, IN CASE OF PE RSON RETURNING ADVANCE (SUNDARI FIN MAN) DEPARTMENT HAS ACCEPTED THE GENUINENESS OF AMOUNT RETURNED (ORDER PAGE 27,28 PAPER BOOK). 6. IN OUR HUMBLE SUBMISSION, WITHOUT DOUBTING BOOK ENTRIES OF LAST YEAR FROM WHICH DEBIT BALANCE OF THREE PARTIES WAS CARRIED FO RWARD IN INSTANT YEAR AND WITHOUT DOUBTING THE SOURCE OF ORIGINAL ADVANCE IN ITS YEAR OF INCEPTION, RETURN OF ADVANCE IN PRESENT YEAR CANNOT BE TREATED AS 'UNEXP LAINED CASH CREDIT' U/S 68 OF THE ACT. 4. THE CIT(A) WHILE CONSIDERING AND ACCEPTING THE P LEA OF THE ASSESSEE IN THE LIGHT OF VARIOUS DOCUMENTS AND CASE LAWS CITED HAS CONCLU DED IN PARA.2.3 OF HIS ORDER AS UNDER: 2.3 I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS O F THE LD. AR AND PERUSED THE ORDER PASSED BY THE AO. I FIND THAT THE AO HAS BASED HIS CONCLUSIONS ON THE BASIS OF STATEMENT OF SOME TARUN GOEL WHICH WAS FOR TWO ENTITIES (FOR ARIES CRAFT AND SUNDARI FIN MAN TOTAL AMOUNT RS. 60,00,000) AND HAS ENDED UP WITH THE INFERENCE THAT AFORESAID TRANSACTION REPRESENTS MON EY RECEIVED FROM UNDISCLOSED SOURCES INCLUDING THE TRANSACTION OF TEJASVI INVEST MENTS PVT. LTD RS. 50,00,000/-. I FIND THAT THE AO HAS NOT CONFRONTED THE ASSESSEE REGARDING THE ALLEGED ADVERSE STATEMENT OF TARUN GOEL. HE HAS ALSO NOT ALLOWED TH E ASSESSEE TO CROSS EXAMINE MR. TARUN GOEL, THOUGH HIS STATEMENT WAS USED AS EV IDENCE AGAINST THE ASSESSEE TO INITIATE THE PROCEEDINGS. HOWEVER, IT WAS FOUND LATER ON THAT THE SAID STATEMENT IS NOT CONNECTED TO THE APPELLANT'S CASE SO AS TO I NFER UNDISCLOSED INCOME ON PART OF ASSESSEE FROM SUBJECT REALIZATION OF LAST YEARS ADVANCES. I FURTHER FIND THAT THE AO HAS NOT BROUGHT OUT ANY POSITIVE EVIDENCE ON REC ORD TO ESTABLISH THAT THE ASSESSEE HAS RECEIVED AN ACCOMMODATION ENTRY FROM T HE SAID ENTITIES. I FURTHER FIND THAT THE AO HAS INSISTED ON PRODUCTION OF SAID DEBTORS. IN VIEW OF THE ABOVE, THE CONTENTION OF THE LD. AR THAT WHEN ON ENQUIRY F ROM SAID DEBTORS BY THE AO, SOME POSITIVE RESPONSE IS RECEIVED FROM ALL THE THR EE PARTIES, CONFIRMING THEIR RESPECTIVE TRANSACTIONS, NEITHER ASSESSEE CAN BE AS KED TO PRODUCE THE DEBTORS AS HELD BY JURISDICTIONAL DELHI HIGH COURT IN DWARKADH ISH CASE (SUPRA) NOR THE SAID RESPONSE OF THREE DEBTORS CAN BE IGNORED WITHOUT BR INING ANY MATERIAL ON RECORD. IN THIS CONNECTION, I FURTHER FIND FROM PAGES 37 TO 98 OF ASSESSEE'S PAPER BOOK WHEREIN RESPONSE OF SAID THREE PARTIES AS SUBMITTED TO THE AO IS CONTAINED ALONG WITH THE FACT THAT THERE IS NO ADDITION/ADVERSE INF ERENCE, MADE IN HANDS OF M/S SUNDARI FIN MAN IN ITS ASSESSMENT FRAMED U/S 143(3) /153C OF THE ACT FOR SUBJECT YEAR. I FIND IN ASSESSEE'S LETTER WRITTEN TO LD AO DATED 22/12/2010 (ASSESSEE'S PAPER BOOK PAGE 99,100) WHEREIN IT IS CATEGORICALLY CONTENDED BY ASSESSEE THAT DIRECTORS OF SAID THREE ENTITIES HAS NOTHING IN COM MON TO MR. TARUN GOEL AS APPARENT FROM LIST OF DIRECTORS OF THESE COMPANIES . THE SUBMISSION OF LD. AR THAT WHEN BOOK RESULTS HAVE NOT BEEN REJECTED AND W HEN SOURCE OF SAID ADVANCE IS I.T.A. NO.2494/DEL./2011 (A.Y. : 2008-09) 6 NOT IN DOUBT, REALIZATION OF SAID ADVANCES IN SUBJE CT YEAR PER SE CANNOT BE TREATED AS INCOME OF CURRENT YEAR HAS FORCE. I FIND MERIT I N THE SAME AS ADJUDICATED BY HON'BLE DELHI BENCH_OF ITAT IN DECENT FOODS CASE ( SUPRA). IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE AND VARIO US JUDICIAL PRONOUNCEMENTS ON THE ISSUE CITED BY THE LD. AR, I AM OF THE CONSIDER ED VIEW THAT THE ADDITION MADE BY THE AO ON ACCOUNT OF REALIZATION OF ADVANCES OF PREVIOUS YEARS FROM AFORESAID THREE PARTIES IS NOT JUSTIFIED AND THEREFORE, THE S AME CANNOT BE SUSTAINED, HENCE THE SAME IS DELETED. THESE GROUND OF APPEAL ARE ALLOWE D. 5. AGGRIEVED BY THIS ORDER OF CIT(A), DEPARTMENT HA S COME UP IN APPEAL AND IT IS CONTENDED THAT CIT(A) HAS FAILED TO APPRECIATE THE FACT THAT ASSESSEE HAS FAILED TO DISCHARGE HIS OBLIGATION/ONUS WITH REGARD TO THE CR EDITWORTHINESS AND GENUINENESS OF THE TRANSACTION AS REQUIRED BY SECTION 68 OF THE I.T. A CT, 1961. IN THE INSTANT CASE, ASSESSEE WAS SPECIFICALLY ASKED TO PRODUCE THE PARTIES FOR P ROVING THEIR GENUINENESS, IDENTITY AND CREDITWORTHINESS, YET NONE COULD BE PRODUCED BEFORE THE ASSESSING OFFICER BY THE ASSESSEE. THEREFORE, RELYING UPON THE BASIS AND RE ASONING AS GIVEN BY THE ASSESSING OFFICER, LD.DR CONTENDED FOR SETTING ASIDE THE ORDE R OF CIT(A) AND RESTORING THAT OF THE ASSESSING OFFICER. 6. LD.COUNSEL FOR THE ASSESSEE WHILE RELYING UPON T HE BASIS AND REASONING GIVEN BY THE CIT(A) HAS PLEADED FOR CONFIRMATION OF THE IMPU GNED ORDER. IT WAS STRONGLY PLEADED THAT ASSESSING OFFICER HAS MADE THE IMPUGNED ADDITI ON RELYING UPON ALLEGED STATEMENT RECORDED FROM SHRI TARUN GOEL, WHO IS STATED TO BE GIVING ACCOMMODATION ENTRIES AND WHEN ASSESSEE FILED NECESSARY DETAILS OF THE DEBTOR S CARRIED FORWARD FROM EARLIER YEAR AND REQUESTED THE ASSESSING OFFICER TO GIVE THE COPY OF THE STATEMENT RECORDED OF SAID SHRI TARUN GOEL AND ALSO SUMMON HIM FOR CROSS EXAMINATIO N BY THE ASSESSEE. NEITHER ANY STATEMENT WAS PROVIDED TO THE ASSESSEE NOR THE CROS S-EXAMINATION OF SAID SHRI TARUN GOEL WAS ALLOWED. WHEN ASSESSEE DID FILE NOT ONLY CONFI RMATION FROM THE PARTIES, BUT ALSO I.T.A. NO.2494/DEL./2011 (A.Y. : 2008-09) 7 THEIR ASSESSMENT RECORDS FOR SEVERAL YEARS, THEIR B ANK ACCOUNTS AND OTHER RELEVANT DETAILS WHICH WERE NOT EVEN CONSIDERED BY THE ASSESSING OFF ICER AND HUGE ADDITION OF RS.1,10,00,000/- HAS JUST BEEN MADE, WHICH HAS RIGH TLY BEEN DELETED BY CIT(A) WHILE CONSIDERING AND APPRECIATING THE FACTS OF THE CASE AND CASE LAW RELIED UPON BY LD.COUNSEL FOR THE ASSESSEE TO DELETE THE IMPUGNED ADDITION. NEITHER ANY CONTRARY MATERIAL HAS BEEN PLACED ON RECORD NOR THE DOCUMENTARY EVIDENCE FILED BY THE ASSESSEE HAS BEEN REBUTTED BY THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEED INGS OR IN APPEAL PROCEEDINGS. THEREFORE, RELYING UPON CIT VS. ORISSA CORPORATION P. LTD., 159 I.T.R. 78(SC) AND DELHI HIGH COURT DECISION IN CIT VS. KAMDHENU STEEL & ALL OYS LTD., I.T.A. NO.972 OF 2009 & OTHERS DATED 23.12.2011 AND IN THE CASE MAHINDRA & MAHINDRA LTD. VS. DCIT, REPORTED IN 30 SOT 374 (MUM.)(SB), IT WAS PLEADED THAT THE I MPUGNED ADDITION MADE BY THE ASSESSING OFFICER HAS RIGHTLY BEEN DELETED WHOSE AC TION NEEDS FURTHER CONFIRMATION. IT WAS THUS URGED FOR CONFIRMATION OF THE IMPUGNED ORD ER. 7. IN ORDER TO COUNTER THE SUBMISSION OF THE LD.COU NSEL FOR THE ASSESSEE, LD.DR SUBMITTED THAT SO FAR AS LISTS OF DIRECTORS OF THE CONCERNED COMPANIES FURNISHED BY THE ASSESSEE ARE CONCERNED, THOSE DO NOT RELATE TO YEAR UNDER CONSIDERATION, BUT THOSE DETAILS ARE FOR SUBSEQUENT PERIOD I.E. 2009-10 , WHEREAS YE AR INVOLVED IS 2008-09 AND REFERENCE WAS MADE TO PAGE 103 OF PAPER BOOK. SO, IT CANNOT BE SAID THAT SHRI TARUN GOEL WAS NOT CONNECTED OR CONCERNED WITH THESE COMPANIES AND CIT (A) HAS JUST ACCEPTED THE CONTENTION OF THE ASSESSEE WITHOUT LOOKING INTO CER TAIN VITAL ASPECTS WHICH HAVE BEEN HIGHLIGHTED BY THE ASSESSING OFFICER TO JUST DELETE THE IMPUGNED ADDITION WHOSE ACTION IS NOT LEGALLY CORRECT WHICH MAY BE REVERSED AND THAT OF THE ASSESSING OFFICER SHOULD BE RESTORED. I.T.A. NO.2494/DEL./2011 (A.Y. : 2008-09) 8 8. WE HAVE HEARD BOTH THE SIDES, CONSIDERED THE M ATERIAL ON RECORD AS WELL AS PRECEDENTS RELIED UPON BY THE ASSESSEE WHICH WERE R EFERRED TO BY THE CIT(A) AND FIND THAT IMPUGNED ADDITION OF RS.1,10,00,000/- HAS BEEN MADE BY THE ASSESSING OFFICER MAINLY ON THE GROUND THAT PARTIES CONCERNED ARE FICTITIOUS PARTIES AND IT IS A CASE OF ACCOMMODATION ENTRIES HAVING BEEN PROVIDED BY THREE PARTIES AND THERE IS NO GENUINITY IN SUCH TRANSACTIONS AND MERE FILING OF RELEVANT ASSES SMENT RECORDS OR DETAILS FROM ROC CANNOT ABSOLVE THE ASSESSEE FORM DISCHARGING ITS ON US OF ESTABLISHING THE REQUIREMENT ENVISAGED U/S 68 OF THE I.T. ACT, 1961. BUT, FROM T HE MATERIAL AVAILABLE ON RECORD AND CIT(A)S ORDER, IT IS SEEN THAT IT IS A CASE WHERE THE AMOUNT HAS BEEN RETURNED BACK TO THE ASSESSEE BY THREE PARTIES DURING THE YEAR UNDER CON SIDERATION WHICH WAS EARLIER ADVANCED BY THE ASSESSEE TO THESE PARTIES AND NECESSARY DOCU MENTARY EVIDENCE ARE DULY FURNISHED BEFORE THE ASSESSING OFFICER ON 22 ND DECEMBER, 2010, WHICH HAS JUST BEEN BRUSHED ASIDE WHILE PASSING THE ORDER ON 23 RD DECEMBER, 2010. THE ASSESSING OFFICER HAS NOT EVE N DISCUSSED OR CONSIDERED SUCH MATERIAL WHICH WAS SUB MITTED BEFORE HIM AND COPIES OF THE SAME WERE FILED BEFORE CIT(A).FROM SUCH MATERIAL,IT IS FOUND THAT ALL NECESSARY DOCUMENT AND MATERIAL HAVE DULY BEEN PLACED BY THE ASSESSEE TO ESTABLISH ITS CASE OF HAVING ADVANCED THE AMOUNT IN EARLIER YEARS AND REC EIVING IT BACK IN THE YEAR UNDER CONSIDERATION. NO LINK OR CONNECTION HAS BEEN ESTAB LISHED BY THE DEPARTMENT WITH SO- CALLED SHRI TARUN GOEL, AS ALLEGED BY THE ASSESSING OFFICER NOR DESPITE ASKING FOR OPPORTUNITY OF CROSS-EXAMINATION, ASSESSING OFFICE R SUMMONED SAID TARUN GOEL IN ORDER TO ALLOW THE ASSESSEE TO CROSS-EXAMINE HIM IN ORDER TO ESTABLISH THAT THERE IS ANY ACCOMMODATION ENTRY. IN THE ABSENCE OF ANY COGENT MATERIAL OR EVIDENCE, WE ARE UNABLE TO ACCEPT THE CONTENTION OF THE DEPARTMENT,AND WE C ONCUR WITH THE FINDING AND CONCLUSION I.T.A. NO.2494/DEL./2011 (A.Y. : 2008-09) 9 AS DRAWN BY THE CIT(A) WHOSE ACTION IS UPHELD AND A PPEAL OF THE DEPARTMENT IS DISMISSED. 12. AS A RESULT, THE APPEAL OF THE DEPARTMENT IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 04.04.2012. SD/- SD/- (S.V. MEHROTRA) ACCOUNTANT MEMBER (U.B.S. BEDI ) JUDICIAL MEMBER DATED : APRIL 04, 2012 SKB COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A)-XVII, NEW DELHI. 5. CIT(ITAT) DEPUTY REGISTRAR, ITAT