Sh. Deen Dayal Goel, New Delhi V. ITO, New Delhi

ITA 2598/DEL/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 6634 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 21-01-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 02-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Income from undisclosed sources; Principle of natural justice; Accommodation entries; Assessment record; Tax effect; Onus to prove; Retraction
• Section: 143(3); 133A; 147; 68; 69; 28

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B: NEW DELHI BEFORE SHRI A. T. VARKEY, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NOS. 1598/DEL/2013 (ASSESSMENT YEAR: 2005-06) ITA NOS. 2598/DEL/2013 (ASSESSMENT YEAR: 2007-08) ITA NOS. 2597/DEL/2013 (ASSESSMENT YEAR: 2008-09) DEEN DAYAL GOEL, N-6, GREATER KAILASH-I, NEW DELHI PAN:AANPG8299A VS. ITO, WARD-11(2), NEW DELHI (APPELLANT) (RESPONDENT) ITA NOS. 1363/DEL/2013 (ASSESSMENT YEAR: 2005-06) ITA NOS. 2628/DEL/2013 (ASSESSMENT YEAR: 2008-09) ITO, WARD- 11(2), NEW DELHI VS. DEEN DAYAL GOEL, N-6, GREATER KAILASH-I, NEW DELHI PAN:AANPG8299A 2 2 (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. RAKESH JAIN, ADV SH.GURJEET SINGH, CA REVENUE BY : SH. YOGENDRA SINGH, SR. DR DATE OF HEARING 22.01.2016 DATE OF PRONOUNCEMENT 24.02.2016 O R D E R PRASHANT M MAHARISHI, A. M. 1. THESE ARE THE APPEALS FILED BY THE ASSESSEE AND CRO SS OBJECTIONS ARE FILED BY THE DEPARTMENT AGAINST THE DIFFERENT ORDER S OF LD. CIT(A). IN ALL THE YEARS THE ISSUE IS SIMILAR AND THEREFORE AY 2008-09 BEING LEAD YEAR IS TAKEN UP FIRST. ASSESSMENT YEAR 2008-09 [ (ITA NO 2628/DEL/2013 BY REVENUE) & ITA NO 2597/DEL/2013 BY ASSESSEE)] 2. WE FIRST TAKE UP APPEAL NO 2628/DEL/2013 FOR AY 2008-09 FILED BY THE REVENUE AGAINST THE ORDER OF THE CIT (APPEALS)- XIII, NEW DELHI DATED 26.02.2013 RAISING EFFECTIVE TWO GROUNDS OF A PPEAL AS UNDER :- 1. THE LEARNED CIT (A) HAS ERRED ON FACTS AND CIRCUMST ANCES OF THE CASE AND IN LAW, DELETING THE ADDITION OF RS.41,18,416/- ON UNSECURED LOAN BEING ALREADY ADDE D IN AY 2007-08 WHEREAS NO ADDITION HAS BEEN MADE DURING AY 2007-08 ON ACCOUNT OF UNSECURED LOAN. THE ADDIT ION OF RS.15,90,000/- HAS ALSO BEEN WRONGLY DELETED. 2. THE LEARNED CIT (A) HAS ERRED ON FACTS AND CIRCU MSTANCES OF THE CASE AND IN LAW IN DELETING THE ADDITION OF RS.9,36,56,472/- WHEREAS DURING SURVEY ON 20.11.200 7 3 3 ASSESSEE HIMSELF HAD ADMITTED GIVEN CASH TO SHRI S. K. GUPTA, ENTRY OPERATOR FOR TAKING ACCOMMODATION ENTR Y ON BEHALF OF THE COMPANIES IN WHICH HE IS A DIRECTOR. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I S AN INDIVIDUAL DERIVING INCOME FROM HOUSE PROPERTY AND INCOME FROM OTHER SOURCES, SUCH AS, BANK INTEREST. FOR AY 2008-09, HE FILED T HE RETURN OF INCOME FOR RS.25,30,338/- ON 23.07.2008. THIS RETU RN OF INCOME WAS PROCESSED U/S 143(1) OF THE INCOME-TAX ACT, 1961 (H EREINAFTER THE ACT) ON 17.07.2009. 4. GROUND NO. 1 IS AGAINST THE DELETION OF ADDITION OF RS. 41,18,416/- ON ACCOUNT OF UNSECURED LOAN. 5. THE BRIEF FACTS OF THIS GROUND ARE THAT DURING THE ASSESSMENT PROCEEDINGS ASSESSEE FILED CONFIRMATION OF VARIOUS PARTIES OF RS. 2,22,69,757/- WHEREAS AS PER THE STATEMENT OF AFFAI RS SUBMITTED BY THE ASSESSEE AS ON 31.03.2008, THE LD. AO FOUND TH AT FIGURES OF UNSECURED LOANS TAKEN BY THE ASSESSEE IS RS. 1,81,5 1,341/-. HENCE, ACCORDING TO AO THERE IS A DIFFERENCE OF RS.41,18, 416/- IN THE TOTAL CONFIRMATION SUBMITTED BY THE ASSESSEE AS WELL AS T HE AMOUNT SHOWN IN THE STATEMENT OF AFFAIRS AS UNSECURED LOANS OF IS RS.41,18,416/- AND SAME WAS ADDED TO THE TOTAL INCOME OF THE ASSE SSEE U/S 68 OF THE ACT. ASSESSEE PREFERRED APPEAL BEFORE CIT (A) WHO DELETED THE ADDITION AS ASSESSEE SUBMITTED CONFIRMATION OF U NSECURED LOAN OF RS 1,81,51,341/- AND ALSO OF RS 4118416/- WHICH I S THE LOANS AND ADVANCES GIVEN BY THE ASSESSEE AND LD AO MISTOOK TH E WHOLE OF THE CONFIRMATION AS UNSECURED LOANS AND MATCHED WIT H THE AMOUNT OF UNSECURED LOANS SHOWN IN STATEMENT OF AFFAIRS. 4 4 6. THE LD. DR FAIRLY ACCEPTED THAT THE DIFFERENCE OF R S.41,18,416/- HAS ARISEN ON ACCOUNT OF AO WRONGLY CONSIDERING THE LIS T OF LOANS AND ADVANCES WHICH ARE ASSETS OF THE ASSESSEE AND, THER EFORE, ADDITION U/S 68 HAS BEEN MADE. HE FAIRLY AGREED TO THE STATEMEN T AT PAGE NOS.35 TO 37 OF THE ORDER OF THE CIT (A). 7. LD. AR RELIED ON THE ORDER OF THE CIT (A). 8. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS. ACCORDING TO THE STATEMENT OF AFFAIRS, THE ASSESSEE HAS OUTSTAND ING UNSECURED LOAN AS ON 31.03.2008 OF RS.1,81,51,341/- AND LOANS AND ADVANCES WHICH ARE ASSETS OF THE ASSESSEE AMOUNTING TO RS.41,18,41 6/-. THE ASSESSEE SUBMITTED THE CONFIRMATION OF ALL THESE PARTIES AND AO TOTALED THE SAME OUTSTANDING OF THIS PARTIES DEBIT AND CREDIT B OTH AND WAS OF THE VIEW THAT SAME IS THE UNSECURED LOAN OF THE ASSESSE E. THE ADDITION IS MADE ON THE BASIS OF WRONG INTERPRETATION OF THE LO ANS AND ADVANCES ACCOUNTS ADVANCED BY THE ASSESSEE AS UNSECURED LO ANS TAKEN BY THE ASSESSEE. THE CIT (A) HAS DELETED THIS ADDITION VI DE PARA 8.2 OF HIS ORDER AND WE DO NOT FIND ANY INFIRMITY IN THE SAME. THEREFORE, WE CONFIRM THE ORDER OF THE CIT (A) IN DELETING THE AD DITION AND GROUND NO. 1 IS DISMISSED. 9. GROUND NO 2 IS AGAINST THE DELETION OF ADDITION OF RS. 9,36,56,472/- MADE BY AO U/S 69 OF THE ACT BASED ON THE STATEMEN T OBTAINED OF THE ASSESSEE DURING THE COURSE OF SURVEY WHICH TOOK PLA CE ON 27.02.2008 WHICH WAS RETRACTED BY THE ASSESSEE VIDE LETTER DA TED 3.3.2008 AND ALSO A NOTE IN THE COMPUTATION OF TOTAL INCOME FILE D BY ASSESSEE ALONG WITH THE RETURN OF INCOME. 5 5 10. A SURVEY WAS CONDUCTED AT THE BUSINESS PREMISES OF M/S. EXPRESS PROPERTIES PVT. LTD. AND ITS DIRECTOR, WHO IS ASSES SEE HERE, ON 27.02.2008. THIS SURVEY WAS BASED UPON THE INFORMA TION GATHERED FROM ONE MORE SURVEY CONDUCTED BY THE REVENUE AT TH E BUSINESS PREMISES OF S.K. GUPTA, CA ON 20.11.2007. DURING S URVEY ON THIS GENTLEMAN, SOME REFERENCE AND LEDGER ACCOUNT OF THE ASSESSEE WAS FOUND. S.K. GUPTA, IN HIS STATEMENT RECORDED, HAD ADMITTED THAT HE IS PROVIDING ACCOMMODATION ENTRIES THROUGH A NUMBER OF CONCERNS CONTROLLED BY HIM WHICH DO NOT HAVE ANY ACTUAL BUSI NESS ACTIVITY AND ARE USED ONLY TO ISSUE ACCOMMODATION ENTRIES. DURI NG THE COURSE OF SURVEY, SOME DOCUMENTS, VOUCHERS AND LAPTOPS WERE I MPOUNDED AND FROM ONE OF THE LAPTOPS, SEVERAL ACCOUNTS MAINTAINE D IN ACCOUNTING SOFTWARE TALLY WAS FOUND FROM AYS 2003-04 TO 2007 -08. ADMITTED MODUS OPERANDI WAS ALSO EXPLAINED IN THE C OURSE OF SURVEY. HE ALSO EXPLAINED THAT HE MAINTAINS CONDUI T-WISE LEDGER ACCOUNTS FOR THE PURPOSE OF HIS RECORD. THE ABOVE INFORMATION IS AVAILABLE TO THE ASSESSEE FROM THE SURVEY REPORT AB OUT SURVEY ON S.K. GUPTA, CA. 11. THE STATEMENT OF S.K. GUPTA WAS RECORDED DURING THE COURSE OF SURVEY WHEREIN QUESTIONS NO.12, 13, & 14 ARE PERTAI NING TO THE ASSESSEE WHICH ARE REPRODUCED AS UNDER :- Q.12 I AM SHOWING YOU ANNX-2. PLEASE ACKNOWLEDGE PAGES 78 TO 84 CONTAINING A/C OF D D GOYAL FROM 1. 4.06 TO 31.3.07. FROM THE SAID A/C, IT IS OBSERVED THAT CASH OF RS.9,03,21,829.44 WAS RECEIVED FORM SHRI D D GOYAL AND TOTAL CHEQUES AMOUNTING TO RS.8,78,22,356.97 WAS IS SUED 6 6 TO HIM FROM VARIOUS CONCERNS CONTROLLED BY YOU. PL EASE EXPLAIN WHY SHRI D D GOYAL PAID SUCH LARGE CASH TO YOU & WHY THE CHEQUES WERE ISSUED. SIMILARLY PAGE 69 T O 77 ALSO PERTAINS TO D D GOYAL. PLEASE EXPLAIN. AN. THESE ARE THE ACCOMMODATING ENTRIES, AND PAID A S LOAN, AND THE CASH RECEIVED AND CHEQUES WERE ISSUED FROM MY DIFFERENT CONCERNS APPX. IS RS.10.00 CR. I.E. I HAV E GIVEN ACCOMMODATION ENTRIES IN THE SHAPE OF LOAN TO SHRI D D GOEL WHICH SHOULD BE APPROX. IS RS.10.00 CRORES. T HE EXACT FIGURES COULD BE WORKED OUT FROM THESE PAPERS . Q.13 PLEASE IDENTIFY WHO IS D D GOYAL & HOW HE IS R ELATED TO YOU. ANS. D D GOEL IS A FAMILY FRIEND, AND HIS IS BUILDE R. HE IS LIVING AT N-64, GREATER KAILASH-1, AND WORKING IN T HE NAME OF EXPRESS PROPERTIES (P) LTD. Q.14 ON THE BASIS OF THESE PAPERS HOW MUCH ACCOMMO DATION ENTRIES YOU HAVE GIVEN TO VARIOUS PARTIES. ANS. THESE ARE APPX TO THE TUNE OF RS.30.00 CR INCL UDING D.D. GOEL EXCLUDING RAJ HANS. 12. FROM THE LAPTOPS OF S.K. GUPTA, A COPY OF ACCOUNT M AINTAINED IN TALLY SOFTWARE WAS RETRIEVED WHICH IS ATTACHED AS A NNEXURE-1 TO THE ORDER OF THE AO RUNNING INTO 21 PAGES. ACCORDINGLY , A CHART WAS PREPARED BY THE AO SHOWING THE YEAR WISE TRANSACTIO N AS UNDER :- PERIOD DESCRIPTION DEBIT CREDIT PAGE NO. FY 2003- 04 AND 2004-05 LOAN JUL03 TO JUL04 13,10,690 13,10,690 1 TO 2 7 7 FY 2004-05 LOAN AUG04 TO MAR05 1,41,24,500 1,39,74,500 3 TO 4 FY 2005-06 LOAN APR05 TO MAR06 2,34,19,817 2,32,18,098 5 TO 6 FY 2006-07 LOAN APR06 TO MAR07 8,78,22,356 9,03,21,829 7 TO 13 FY 2007-08 LOAN APR07 TO MAR08 8,91,17,000 9,36,56,472 14 TO 21 13. DURING THE COURSE OF SURVEY ON THE ASSESSEE, A STAT EMENT WAS RECORDED ON 27.02.2008 WHEREIN DEEN DAYAL GOEL WHEN CONFRONTED WITH THE STATEMENT AND HIS LOAN ACCOUNT TAKEN OUT F ROM LAPTOPS OF S.K. GUPTA, HE ADMITTED THAT HE HAS TAKEN ACCOMMODA TION ENTRIES AND THEREAFTER HE ALSO ISSUED CHEQUES FOR THE PAYME NT OF TAXES. COPY OF HIS STATEMENT IS ATTACHED BY AO AS ANNEXURE-2 OF THE ASSESSMENT ORDER. VIDE LETTER DATED 03.03.2008, THE ASSESSEE RETRACTED THE STATEMENT STATING THAT SURVEY TEAM HAS MADE HIM TO MAKE A SURRENDER BY SHOWING SOME CHIT AND WITHOUT LOOKING HIS BOOK S OF ACCOUNTS AND UNDERSTANDING THE LAW, HE WAS COMPELLED TO DISC LOSE THIS AMOUNT. HE COULD NOT ALSO CONSULT HIS ADVOCATE OR HIS STAFF DURING THE COURSE OF THAT SURVEY. FURTHERMORE, HE HAS ALS O STATED THAT THE CHEQUES ISSUED SHOULD NOT BE DEPOSITED TOWARDS THE TAX LIABILITY. THIS LETTER WAS ADDRESSED TO ASSISTANT DIRECTOR OF INCOME-TAX, NEW DELHI. 14. ALONG WITH COMPUTATION OF THE TOTAL INCOME, THE ASS ESSEE HAS GIVEN A FOOT NOTE STATING THAT, A SURVEY WAS CARRIED OUT I N MY OFFICE PREMISES NO.HS-38, KAILASH COLONY, NEW DELHI ON 27. 02.2008 BY ITO, UNIT VI, NEW DELHI AND GOT SOME AMOUNT SURREND ERED UNDER PRESSURE. LATER ON, I DENIED THAT ALLEGED SURRENDE R VIDE MY LETTER DATED 03.03.2008. SUBSEQUENTLY, THE CASE WAS TAKE N UP FOR SCRUTINY. 8 8 15. THE AO HAS STATED THAT THIS RETRACTION IS FACTUALL Y MISREPRESENTED BY THE ASSESSEE BY PUTTING BOGUS SIGNATURES WITHOUT AN Y SEAL OF THE DEPARTMENT OR THE NAME AND DESIGNATION OF THE PERSO N. HE FURTHER DOUBTED THE VERACITY OF THE LETTER THAT THERE IS NO MENTION IN THE SURVEY REPORT ABOUT THE LETTER OF RETRACTION MADE B Y THE ASSESSEE. HENCE, THE AO WAS OF THE VIEW THAT IT IS NOT THE RE TRACTION BUT AN AFTERTHOUGHT. ON THE ABOVE SET OF FACTS AND FOR FO LLOWING REASONS, THE AO HAS MADE AN ADDITION TO THE INCOME OF THE ASSESS EE :- (I) THAT DEEN DAYAL GOEL, ASSESSEE HEREIN HAS CONFE SSED IN HIS STATEMENT RECORDED DURING THE COURSE OF SURVEY ON 28.02.2008 THE AMOUNT OF UNDISCLOSED INCOME; (II) THE LETTER OF RETRACTION IS MERELY AN AFTERTHO UGHT; (III) THE CHEQUES AND DEMAND DRAFTS IN THE LOAN ACC OUNT TALLY WITH THE FINANCIALS OF DEEN DAYAL GOEL AND COMPANIE S RUN BY HIM; (IV) THE LOAN ACCOUNT FOUND FROM S.K. GUPTA ALSO IN CLUDES COMMISSION; AND (V) THERE WAS A FURTHER SURVEY ON 05.01.2009 WHERE, IN QUESTION NO.1, HE HAS MADE A REFERENCE TO THE ASSES SEE. INFORMATION WAS GATHERED FROM THE AO OF S.K. GUPTA 9 9 WHERE A LETTER DATED 24.12.2010 WRITTEN BY THE COUN SEL OF S.K. GUPTA STATED THAT DETAILS OF MEDIATOR, AMOU NT OF CASH RECEIVED, THE AMOUNT OF THE NAME OF THE BENEFICIARIES AND THE BANK FROM WHICH THE ENTRY WAS PROVIDED AND THE AMOUNT IS MENTIONED. 16. IN VIEW OF THE ABOVE FACTS, THE AO MADE AN ADDITION OF RS.9,36,56,472/- TO THE TOTAL INCOME OF THE ASSESSE E U/S 69 OF THE ACT. 17. AGGRIEVED BY THIS, ASSESSEE PREFERRED AN APPEAL BEF ORE THE CIT (A) WHO IN TURN DELETED THE ADDITION. THE MAIN REASONS FOR DELETION ARE AS UNDER :- (I) DURING THE YEAR, THERE IS NO ACCOMMODATION ENTR Y RECEIVED BY THE ASSESSEE FROM THE STATEMENT ITSELF; (II) THE TWO ENTRIES PERTAINED TO RS.6,30,00,000/- AND RS.2,59,60,000/- ARE PERTAINING TO EXPRESS PROPERTI ES PVT. LTD. AND DKG FINANCE AND CHIT FUNDS PVT. LTD. AND A RE NOT PERTAINING TO THE ASSESSEE. A FURTHER SUM OF RS.1, 51,405/- IS PERTAINING TO DD GOEL & SONS (HUF) AND NOT THE ASSE SSEE. THEREFORE, THESE ACCOMMODATION ENTRIES CANNOT BE AD DED IN THE HANDS OF THE ASSESSEE. ACCORDING TO CIT (A), I F ANY 10 10 ACTION IS REQUIRED TO BE TAKEN, IT SHOULD BE IN THE HANDS OF THOSE ASSESSEE AND NOT THE ASSESSEE HEREIN. 18. AGGRIEVED BY THIS, THE REVENUE IS IN APPEAL BEFORE US IN GROUND NO. 2 OF THIS APPEAL. 19. LD. DR CONTENDED THAT AS ASSESSEE HAS ADMITTED DURI NG THE COURSE OF SURVEY, THE ADDITION HAS BEEN MADE. THE ADDITION H AS BEEN MADE ON THE BASIS OF ACCOUNT OF THE ASSESSEE FOUND DURING T HE COURSE OF SURVEY WITH THIRD PARTY AND, THEREFORE, IT IS BASED ON EVI DENCE. HE FURTHER SUBMITTED THAT UNACCOUNTED MONEY HAS BEEN INVESTED BY DEEN DAYAL GOEL FOR OBTAINING ACCOMMODATION ENTRY, ADDITION HA S BEEN RIGHTLY MADE. HE, THEREFORE, SUBMITTED THAT THE SAME NEEDS TO BE CONFIRMED. 20. LD. AR OF THE ASSESSEE CONTENDED AS UNDER :- I. THE ASSESSEE HAS NOT RECEIVED ANY ACCOMMODATI ON ENTRY AND, THEREFORE, NO ADDITION CAN BE MADE IN THE HAND S OF THE ASSESSEE; II. THE ENTRIES STATED IN THE PURPORTED LEDGER AC COUNT RECOVERED FROM S.K. GUPTA IS NOT THE LEDGER OF THE ASSESSEE A ND WHILE THE NAME OF THE ASSESSEE IS MENTIONED IN THAT LEDGE R ACCOUNT IS NOT KNOWN TO THE ASSESSEE; 11 11 III. THE AMOUNT OF ENTRIES ALLEGEDLY BOGUS ENTRIES HAS BEEN RETURNED TO THE PARTIES FROM WHOM THEY HAVE TAKEN I N SUBSEQUENT YEARS; IV. REGARDING THE AMOUNT OF LOAN OF RS.6.30 CRORE S WHICH IS ALLEGED TO BE THE BOGUS ENTRY HAS BEEN ACCEPTED BY THE REVENUE U/S 143(3) OF THE ACT DATED 31.12.2010. HE SUBMITTED THAT IN PARA 3 OF THE ASSESSMENT ORDER, T HE AO OF THAT COMPANY HAS RECORDED HIS FINDING ABOUT THE SUR VEY ON THE ASSESSEE AND ITS OUTCOME AND AFTER FULL EXAMINA TION, HE ACCEPTED THE LOAN ENTRY WITH THE LOAN RECEIVED BY T HE ASSESSEE OF RS.6.30 CRORES AS GENUINE. V. IDENTICALLY, HE SUBMITTED THAT IN CASE OF DKG FINANCE AND CHIT FUND PVT. LTD, THE ASSESSMENT WAS REOPENED U/S 147 FOR AY 2007-08 FOR THE PURPOSE OF VERIFICATION BASE D ON THE SAME SET OF ACCOUNT AND LEDGER FROM S.K. GUPTA AND AFTER DETAILED VERIFICATION, THE ASSESSMENT OF THIS COMPANY WAS NOT DISTURBED. THEREFORE, HE SUBMITTED THAT WH EN THE ACCOUNTING ENTRIES HAVE BEEN ACCEPTED BY THE REVENU E, ALL THESE LOANS ARE GENUINE IN THE HANDS OF THE BENEFIC IARIES, 12 12 THEREFORE, THERE IS NO REASON THAT THERE SHOULD BE ANY ADDITION IN THE HANDS OF THE ASSESSEE U/S 69 OF THE ACT. VI. HE FURTHER SUBMITTED THAT ASSESSEE HAS RETRAC TED HIS STATEMENT MADE DURING THE COURSE OF SURVEY AS IT WA S TAKEN BY FORCE AND WITHOUT ANY ASSISTANCE OFFERED TO THE ASSESSEE FOR VERIFICATION OF HIS ACCOUNTS AND ASSOCIATES AND LAWYERS ETC. HE FURTHER SUBMITTED THAT RETRACTION IS VALID RETRACTION AS SAME HAS BEEN FILED AFTER THREE DAYS OF THE SURV EY. VII. HIS NEXT ARGUMENT WAS THAT THE RETURN OF INCOME FIL ED BY THE ASSESSEE ON 23.07.2008 WHEREIN ASSESSEE HAS GIV EN A FOOT NOTE RELATING TO HIS RETRACTION. THE DATE OF SURVEY IS 27.02.2008 AND THE DATE OF FILING OF RETURN IS 23.0 7.2008. THEREFORE, EVEN OTHERWISE, NOTE ON RETRACTION ALSO MENTIONS REFERENCE TO LETTER DATED 03.03.2008. THE AO HAS QUESTIONED THIS LETTER ONLY BY LETTER DATED 15.09.2 010 I.E. 2 YEARS AFTER THE LETTER OF RETRACTION. DURING THAT PERIOD, THE AO COULD HAVE VERIFIED THE VERACITY OF THIS LETTER WHICH IS BEING CHALLENGED. VIII. HE FURTHER ARGUED THAT IN ABSENCE OF EVIDENCE, THE STATEMENT RECORDED DURING THE COURSE OF SURVEY DOES NOT HAVE ANY 13 13 EVIDENTIARY VALUE AND ADDITION MADE BASED ON THAT A CCOUNT DOES NOT SURVIVE. IX. HE FURTHER SUBMITTED THAT THE EVIDENCE HAS NOT BEEN FOUND FROM THE ASSESSEE BUT FROM THIRD PARTY AND THEREFOR E EVIDENCE FOUND FROM THIRD PARTY CANNOT BE USED BY REVENUE FOR MAKING ADDITION IN THE HANDS OF ASSESSE E WHEN DURING SURVEY AT THE PREMISES OF THE ASSESSEE NO EV IDENCE WAS FOUND. HE SUBMITTED THAT NONE OF THE DOCUMENTS ARE IN HAND WRITING OF THE ASSESSEE, THEY DO NOT HAVE ANY CORROBORATIVE EVIDENCE, THEY ARE ALSO NOT BEARING A NY SIGNATURE OF THE ASSESSEE. X. HE FURTHER RELIED ON THE DECISION OF COORDINA TE BENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS. RAJ HANS TOWER PVT . LTD. IN ITA NO.4922/DEL/2011 FOR AY 2008-09 WHEREIN IDENTICAL CIRCUMSTANCES AND THE FACTS ARE BASED ON THE SURVEY ON S.K. GUPTA, THE ADDITION HAS BEEN DELETED IN THE HANDS OF THE ASSESSEE. THEREFORE, HE SUBMITTED THA T THIS ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE . XI. IN VIEW OF THIS, HE REQUESTED THAT ADDITION SHOULD BE DELETED. 14 14 21. IN REJOINDER, LD. DR RELIED ON THE SAME SET OF ARGU MENTS AND SUBMITTED THAT THE SURVEY STATEMENT HAS AN EVIDENTI ARY VALUE AND IT CANNOT BE SAID THAT THE STATEMENT RECORDED BY S.K. GUPTA CANNOT BE USED AGAINST THE ASSESSEE. 22. IN RESPONSE, LD. AR OF THE ASSESSEE STATED THAT THE ASSESSEE HAS NOT BEEN GRANTED CROSS-EXAMINATION OF THIS GENTLEMAN BA SED ON WHOSE STATEMENT THE ADDITION HAS BEEN MADE. HE STATED TH AT WITHOUT GRANTING CROSS EXAMINATION, THE EVIDENCES CANNOT BE USED AGAINST THE ASSESSEE. 23. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND WE HAVE ALSO PERUSED THE CHART GIVEN BY LD AO IN ASSESSMENT O RDER WHICH IS AS UNDER :- PERIOD DESCRIPTION DEBIT CREDIT FY 2003-04 AND 2004-05 LOAN JUL03 TO JUL04 13,10 ,690 13,10,690 FY 2004-05 LOAN AUG04 TO MAR05 1,41,24,500 1,39,74,500 FY 2005-06 LOAN APR05 TO MAR06 2,34,19,817 2,32,18,098 FY 2006-07 LOAN APR06 TO MAR07 8,78,22,356 9,03,21,829 FY 2007 - 08 LOAN APR07 TO MAR08 8,91,17,000 9,36,56,472 AS DURING THE COURSE OF HEARING WE HAVE NOTED THAT THERE IS NO ADDITION FOR AY 2003-04 , FOR AY 2004-05 APPEAL OF THE REVENUE IS DISMISSED ON ACCOUNT OF LOW TAX EFFECT, FOR AY 200 7-08 ASSESSEE IS IN APPEAL BEFORE US AND FOR AY 2008-09 REVENUE AND ASSESSEE ARE IN CROSS APPEAL BEFORE US. WE COULD NOT FIND ANY MENTI ON OF THE AY 2006-07 IN RESPECTIVE ASSESSMENT RECORDS AND SUBMIS SIONS MADE BY RIVAL PARTIES. THEREFORE WE SOUGHT CLARIFICATION F ROM RIVAL PARTIES REGARDING STATUS OF ASSESSMENT PROCEEDINGS FOR AY 2 006-07 AS THERE WERE TRANSACTIONS PERTAINING TO THAT YEAR ALSO IN C OPY OF ACCOUNT FOUND FROM THE PREMISES OF SHRI S K GUPTA. BEFORE US THE LD DR 15 15 AND AR BOTH CONFIRMED THAT ASSESSEE FILED HIS RETUR N OF INCOME AND SAME WAS ASSESSED U/S 143(1) OF THE ACT. THERE ARE NO ACTIONS PENDING AGAINST THE ASSESSEE FOR AY 2006-07. 24. NOW WE TAKE UP EACH ARGUMENTS OF THE PARTIES FOR AY 2008-09 AS UNDER :- I. IT IS NOT IN DISPUTE THAT SHRI S.K. GUPTA HAS MADE A STATEMENT THAT HE IS AN ENTRY OPERATOR AND IT IS ALSO NOT IN DISPUTE THAT MR. DEEN DAYAL GOEL, ASSESSEE, IN HIS STATEMENT DA TED 27.02.2008 DURING THE COURSE OF SURVEY HAS ADMITTE D HIS UNACCOUNTED INCOME. BUT IT IS IMPORTANT HOW THE QUE STION NO.11 OF THAT STATEMENT WAS RAISED AND HOW IT WAS R ESPONDED TO. THE QUESTION NO.11 WAS FRAMED IN SUCH MANNER T HAT THE ASSESSEE WAS ASKED THAT DURING THE COURSE OF SURVEY ON 20.11.2007 ON ONE SHRI S.K. GUPTA, CA, SOME LEDGERS WERE FOUND BEARING THE NAME OF THE ASSESSEE AND SHRI S.K . GUPTA HAS ACCEPTED THAT THE COMPANIES FROM WHICH THE CHEQ UES ARE GIVEN DOES NOT HAVE SUBSTANTIAL BUSINESS BUT ARE GI VING ACCOMMODATION ENTRIES. AFTER THAT, DIFFERENT ACCOU NTS APPEARING IN HIS NAME FOUND FROM SHRI S. K. GUPTA W ERE SHOWN TO THE ASSESSEE AND HE WAS ASKED TO ACCEPT IT . HE WAS 16 16 ALSO ASKED TO EXPLAIN THE CASH DEPOSIT APPEARING IN THOSE ACCOUNTS. IN RESPONSE TO THIS, ASSESSEE REPLIED TH AT HE HAS SEEN THE PAPERS AND THE CASH SHOWN IN THAT IS HIS UNACCOUNTED INCOME AND HE HAS PAID CASH TO SHRI S.K . GUPTA AND IN TURN OBTAINED CHEQUE ENTRIES. FOR THIS SERV ICES, HE HAS ALSO PAID COMMISSION TO SHRI S.K. GUPTA. IN QUESTI ON NO.10, A TABULATION WAS MADE OF CASH DEPOSITED BY SHRI S.K . GUPTA IN THE ACCOUNT OF THE ASSESSEE IN THE BOOKS OF SHRI S.K. GUPTA WHICH WAS IMMEDIATELY CONFIRMED BY THE ASSESS EE AND ISSUED 8 POST-DATED CHEQUES STARTING FROM THE D ATE OF 14.03.2008 TO 25.07.2008 AMOUNTING TO RS.4,01,88,72 0/-. IT WAS SUBMITTED THAT THIS STATEMENT WAS RETRACTED VID E LETTER DATED 03.03.2008 WHICH IS ALSO MENTIONED BY AO IN ASSESSMENT ORDER AND REJECTED THE SAME. FOR A MOME NT, IF IT IS ACCEPTED THAT NO SUCH LETTER WAS FILED BY THE AS SESSEE BEFORE THE ADDL. DIRECTOR OF INCOME-TAX (INV.) ON 03.03.2008, THEN FOLLOWING QUESTION ARISES :- A) THE ASSESSEE IN HIS STATEMENT HAS MENTIONED THAT HE HAS ISSUED CHEQUES ON 14.03.2008 OF RS.30 LAKHS AND SUBSEQUENTLY, UP TO 25.07.2008 WHERE THE LAST CHEQU E 17 17 WAS OF RS.51,88,720/-, IN TOTAL OF 8 CHEQUES AMOUNT ING TO RS.4,01,88,720/- FOR PAYMENT OF TAXES WHY REV ENUE HAS NOT DEPOSITED THESE CHEQUES AND ENCASHED TAX ES INVOLVED THEREIN. B) IT IS ALSO APPARENT FROM THE FACT THAT RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 23.07.2008 BY WHICH MO ST OF THE SUMS EXCEPT LAST CHEQUE WOULD HAVE BEEN RECOVERED BY THE REVENUE. II. STRANGELY ON LOOKING AT THE COMPUTATION OF TOTAL IN COME AND RETURN OF INCOME FILED FOR AY 2008-09 BY THE ASSESS EE, IT SHOWS TAX PAID U/S 140(A) OF THE ACT OF RS.2,06,280 /- ONLY. THEREFORE, IT IS APPARENT THAT THE REVENUE HAS NOT DEPOSITED THESE CHEQUES FOR TAX COLLECTED DURING THE COURSE O F SURVEY AND IT IS ONLY BECAUSE OF THE REASON THAT IN THE LE TTER DATED 03.03.2008 AFTER RETRACTION OF DISCLOSURE IN PARA N O.3 ASSESSEE HAS MADE A SPECIFIC REQUEST TO RETURN ALL THOSE CHEQUES OR IN ALTERNATIVE THEY SHOULD NOT BE PRESEN TED FOR CLEARANCE. FURTHERMORE, IT IS APPARENT THAT NO SUC H CHEQUES HAVE BEEN DEPOSITED AND EVEN IF DEPOSITED, NO ACTIO N HAS BEEN TAKEN ON THE ASSESSEE IF SUCH CHEQUES HAVE NOT BEEN 18 18 DISHONORED. THIS SINGLE FACT WHICH IS VITAL AND IN VOLVE A HUGE REVENUE PROVES THAT THE LETTER DATED 03.03.200 8 IS NOT AT ALL AN AFTERTHOUGHT. THE CHEQUES DEPOSITED WERE WI TH THE ASSISTANT DIRECTOR OF INCOME-TAX (INV.) AND LETTER WAS ADDRESSED TO THE OFFICE OF THE ADDL. DIRECTOR OF IN COME-TAX (INV.) (OFFICER HIGHER THAN TO WHOM CHEQUES WERE IS SUED). III. SECONDLY, IN HIS RETURN OF INCOME FILED BY THE ASSE SSEE ON 23.07.2008, IT SHOWS THAT THE ASSESSEE HAS RETRACTE D HIS STATEMENT MADE DURING THE COURSE OF SURVEY. THIS R ETURN WAS PHYSICALLY DELIVERED AT THE OFFICE OF THE ITO, WARD 11 (2), NEW DELHI ON 23.07.2008. AO INSTEAD OF PICKING UP THE ISSUE IMMEDIATELY HAS CHOSEN TO WAIT UP TO 25.10.20 10 AND DID NOT RAISE A SINGLE QUERY ABOUT SUCH RETRACTION AND SUDDENLY AFTER 2 YEARS OF FILING OF THE LETTER AN D RETRACTION IN THE RETURN OF INCOME, THE AO HAS QUESTIONED THE VERACITY OF THE LETTER DATED 03.03.2008. THE MOMENT RETURN WAS RECEIVED WHERE THERE IS AN EMPHATIC ACTION OF RETRA CTION AS RETURN OF INCOME WAS FILED AT MUCH LOWER FIGURE THA N DISCLOSURE MADE BY ASSESSEE DURING SURVEY AND IT HA S MENTION OF LETTER DATED 03.03.2008, THE AO SHOULD H AVE 19 19 IMMEDIATELY ASKED FOR THE VERACITY OF THIS LETTER A ND PUT THE ASSESSEE TO THE TASK OF PROVING OF SUCH RETRACTION. THIS ACTION PROVES THAT AO HAS MISERABLY FAILED IN HIS D UTY TO RESPOND TO SUCH RETRACTION. IV. LD. AO HAS ALSO HELD THAT THE SURVEY REPORT RECEI VED BY HIM FORM INVESTIGATION WING DOES NOT MENTION ABOUT IT. MERELY BECAUSE THE SURVEY REPORT SENT BY ITO (INV.) HAS NOT MENTIONED ABOUT SUCH RETRACTION OR HAS NOT GIVEN A COPY THEREOF TO THE AO, IT CANNOT BE SAID THAT IT HAS NE VER BEEN PUT BEFORE THE REVENUE. THE RECEIPT OF LETTER AND RECE IPT OF SURVEY REPORT FROM THE INVESTIGATION WING IS AN ENT IRELY MATTER OF THE REVENUE AND ASSESSEE IS NOT CONCERNED WITH THAT. HAD THIS ISSUE BEEN ASKED TO THE ASSESSEE AN D ALSO THE OFFICER OF THE INVESTIGATION WING IMMEDIATELY AFTE R FILING OF RETURN OF INCOME OR HAS IT BEEN ENQUIRED FROM THE INVESTIGATION WING OF THE REVENUE ITSELF, THE MATTE R COULD HAVE BEEN TAKEN UP BY THE AO DIFFERENTLY HAD THAT L ETTER BEEN FABRICATED IN ANY WAY. THIS IS A SERIOUS ALLEGATIO N RAISED BY THE REVENUE AGAINST THE ASSESSEE WITHOUT EVIDENCE. 20 20 V. IN VIEW OF THE ABOVE FACTS, WE ARE NOT IN A POSITIO N TO NOW QUESTION THE ASSESSEE THAT LETTER OF RETRACTION FIL ED BY HIM ON 03.03.2008 AN AFTERTHOUGHT. IN VIEW OF THIS, WE AR E OF THE VIEW THAT ASSESSEE HAS RETRACTED IMMEDIATELY AND TH EN REPEATED HIS RETRACTION OF DISCLOSURE MADE DURING THE COURSE OF SURVEY IN THE RETURN OF INCOME. VI. THE ABOVE FINDING LEADS US TO THE NEXT STEP OF EVID ENTIARY VALUE OF STATEMENT RECORDED DURING THE COURSE OF SU RVEY. THE REVENUE HAS RELIED ON THE STATEMENT OF SHRI DEE N DAYAL GOEL WHICH IS TAKEN ON OATH. THE HONBLE SUPREME C OURT IN CASE OF CIT VS. S. KADIR KHAN SON 352 ITR 480 (SC ) HAS HELD THAT SECTION 133A DOES NOT EMPOWER ANY INCOME- TAX AUTHORITY TO EXAMINE ANY PERSON ON OATH, HENCE ANY SUCH STATEMENT DOES NOT HAVE ANY EVIDENTIARY VALUE AND A NY ADMISSION MADE DURING SUCH STATEMENT CANNOT, BY ITS ELF, BE MADE THE BASIS FOR ADDITION. IN THE CASE BEFORE US , THE STATEMENT OF SHRI DEEN DAYAL GOEL, ASSESSEE WAS RE CORDED U/S 133A DURING THE COURSE OF SURVEY ON 27.02.2008 ON OATH WHICH WAS ADMINISTERED BY ASSISTANT DIRECTOR OF INC OME-TAX (INV.) AND WHOLE OF THE ADDITION IS DEPENDENT ON TH IS 21 21 STATEMENT. IN VIEW OF THIS DECISION OF THE HONBLE SUPREME COURT, WE CANNOT APPROVE THIS ADDITION ON THIS SCOR E ONLY AS IT IS AGAINST THE JUDICIAL PRECEDENT LAID DOWN BY T HE HONBLE APEX COURT. VII. COMING TO THE EVIDENCES WHICH HAVE BEEN COVERED FRO M THE SURVEY CONDUCTED AT THE OFFICE OF SHRI S.K. GUPTA, CA. THE AO HAS ATTACHED ANNEXURE-1 WHICH IS STARTING FROM P AGE 1 TO 21 OF THE ASSESSMENT ORDER. THE LD. AR HAS SUBM ITTED A LETTER DATED 03.03.2008 FROM PAGES 32 TO 34 WHEREIN THEY HAVE ASKED FOR A HARD DISK, OTHER COMPUTER AND OTHE R PAPERS TAKEN AWAY BY THE SURVEY TEAM. COPY OF A CHIT WH ICH WAS SHOWN TO THE ASSESSEE ALLEGEDLY SEIZED FROM THE OFF ICE OF SHRI S.K. GUPTA AS THE ACTION U/S 133A WAS BASED ON THAT ONLY. THE ASSESSEE ALSO ASKED FOR THE COPIES OF TH E STATEMENT RECORDED. NEITHER THIS CHIT NOR ANY OTHER MATERIAL WAS GIVEN TO THE ASSESSEE. IT IS THE ESTABLISHED PRACTICE AN D PRINCIPLES OF NATURAL JUSTICE THAT ANY MATERIAL WHICH IS USED AGAINST THE ASSESSEE IS REQUIRED TO BE SUPPLIED TO THE ASSESSEE FOR HIS DEFENSE. BY DOING THIS, THE AO HAS MADE THE ADDITI ON BASED ON MATERIAL WHICH WAS COLLECTED BEHIND THE BACK OF THE 22 22 ASSESSEE AND FOR WHICH NO OPPORTUNITY WAS GIVEN TO THE ASSESSEE TO REBUT IT. VIII. FURTHERMORE, THE ADDITION IS SOLELY BASED ON ACCOUN T OF LEDGER OF THE ASSESSEE RECEIVED FROM THE COMPUTERS OF THE THIRD PARTY. IN A CASE WHERE SUCH AN INFORMATION I S RECEIVED FROM THE THIRD PARTY THEN AO SHOULD HAVE GIVEN THE COPY OF STATEMENT OF SHRI S.K. GUPTA AND ALSO SHOULD HAVE A FFORDED EXAMINATION OF SHRI S.K. GUPTA TO THE ASSESSEE. IN THIS CASE, SHRI S.K. GUPTA IS THE WITNESS OF THE REVENUE. THE SAME COMPANIES FROM WHOSE ACCOUNTS THE MONEY HAS BEEN RECEIVED IN THE HANDS OF EXPRESS PROPERTIES PVT. LT D. AND DKG FINANCE AND CHIT FUND PVT. LTD., THESE AMOUNTS HAVE BEEN CONFIRMED BY THE DEPOSITORS IN SEPARATE ASSESS MENT PROCEEDINGS IN THE HANDS OF THE BORROWERS IN SCRUTI NY ASSESSMENT. THEREFORE, NOW THE PARTIES TO WHOM SHR I S.K. GUPTA HAS GIVEN LOAN, HE HAS NOW CONFIRMED THOSE AC COUNTS AND THESE CONFIRMATIONS HAVE BEEN ACCEPTED BY THE R EVENUE IN THE ASSESSMENT OF EXPRESS PROPERTIES PVT. LTD. A ND DKG FINANCE AND CHIT FUND PVT. LTD. WHICH ARE COMPLETED AFTER THE DATE OF SURVEY AND THE ASSESSMENT ORDER ALSO ME NTIONS 23 23 THE FACT OF SURVEY. IN THOSE CASES REVENUE HAS AC CEPTED THAT THESE LOANS ARE GENUINE. NOW, REVENUE CANNOT TURN BACK AND SAY THAT THE AMOUNT IS CHARGEABLE TO TAX IN THE HAN DS OF THE ASSESSEE THOUGH IT IS CONSIDERED AS GENUINE IN THE HANDS OF THOSE PERSONS IN WHOSE ACCOUNTS THESE LOANS ARE CRE DITED. IX. IN THE CASE OF ONE OF THE TWO COMPANIES I.E. EXPRES S PROPERTIES PVT. LTD., AN AMOUNT OF RS.6.30 CRORES I S RECEIVED FROM SHRI S.K. GUPTA, M/S OPTIUM LIMITED, BERIWAL C HIT FUND LTD. ETC. WHICH ARE ALLEGED TO BE THE BOGUS COMPANIES FLOATED BY SHRI S. K. GUPTA, ON VARIOUS DATES IN F Y 2007-08 RELATED TO AY 2008-09. THE ASSESSMENT OF THIS COMP ANY WAS FRAMED U/S 143(3) OF THE ACT BY ITO, WARD 11(2) , NEW DELHI ON 31.12.2010 (I.E. AFTER THE SURVEY). IN THE ASSESSMENT ORDER IN PARA NO.3, IT HAS BEEN MENTIONE D THAT A SURVEY OPERATION U/S 133A WAS CONDUCTED ON SHRI DEE N DAYAL GOEL AND EXPRESS PROPERTIES PVT. LTD. BEFORE THAT AO, SHRI DEEN DAYAL GOEL HIMSELF ATTENDED AND DURIN G THE COURSE OF ASSESSMENT PROCEEDINGS, CONFORMATION OF A LL THESE PARTIES WERE PLACED BEFORE THE AO WHO DESPITE THE S TATEMENT DID NOT MAKE ANY ADDITION IN THE HANDS OF THE COMPA NY 24 24 EITHER ON SUBSTANTIVE BASIS OR ON PROTECTIVE BASIS AND, THEREFORE, IT IS CLEAR THAT HE HAS ACCEPTED THE IDE NTITY, CREDITWORTHINESS AND GENUINENESS OF THESE TRANSACTI ONS. PITIFULLY, SHRI D D GOEL DESPITE ATTENDING THE ASSE SSMENT WAS NOT AT ALL QUESTIONED ON THIS ASPECTS. SIMILAR LY, IN THE CASE OF DKG FINANCE AND CHIT FUND PVT. LTD. THE AMO UNT OF SAME PARTIES WAS RECEIVED TO THE EXTENT OF RS.2,56, 60,000/- IS ALSO REMAINED UNDISTURBED. IT IS ALSO GLARING T O NOTE THAT THE ASSESSMENT FOR AY 2007-08 WAS FRAMED BY THE AO ON 31.01.2014 BY ITO, WARD 10(2), NEW DELHI U/S 147 RE AD WITH SECTION 143(3) FOR WHICH THERE WAS A SPECIFIC REASONING OF THE ACCOMMODATION ENTRIES PERTAINING TO THE SURV EY ON SHRI S.K. GUPTA AMOUNTING TO RS.4.30 CRORES. IN T HE REOPENED ASSESSMENT ALSO, DESPITE THERE BEING REASO N OF THE ACCOMMODATION ENTRIES OF S.K. GUPTA, THE AO ON FURN ISHING OF CONFIRMATION ETC. HAS ACCEPTED THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION . SIMILARLY, AN AMOUNT OF RS.1,51,405/- WHICH WAS REC EIVED BY DDG SONS & HUF NO ACTION HAS BEEN TAKEN BY THE REVENUE. FROM THE ABOVE ASSESSMENT AND INCOME-TAX 25 25 RECORDS OF THE ASSESSEE AND THOSE ASSESSES WHO ARE ASSESSED U/S 143(3) AND 147 OF THE ACT BY DIFFERENT OFFICERS BOTH OF WHOM HAVE PRIVILEGED OF ALL THE INFORMATION ABOUT T HE SURVEY, DID NOT TAKE ANY ADVERSE VIEW OF THOSE ALL EGED LOANS. IT IS APPARENT THAT THE CREDIT ENTRIES APPEA RING IN THE BOOKS OF THOSE COMPANIES HAVE BEEN ACCEPTED BY THE REVENUE BY DIFFERENT OFFICERS AS GENUINE BUT IN THE HANDS OF THE ASSESSEE ADDITION HAS BEEN MADE U/S 69 OF THE A CT. WE FAIL TO UNDERSTAND THAT WHEN ENTRIES ARE FOUND TO B E GENUINE IN THE BOOKS OF THE OTHER PARTIES, HOW REVENUE CAN TAKE A DIFFERENT STAND FOR TAXING THE SAME TRANSACTION IN THE HANDS OF THE ASSESSEE. IT HAS BEEN HELD IN THE CASE OF C IT VS. ROSHAN LAL SETH 178 ITR 660 THAT WHERE A DEPOSIT STANDS IN THE NAME OF THE THIRD PERSON, EVEN THAT PERSON R ELATED TO THE ASSESSEE, THE ASSESSEE CANNOT CALL UPON TO EXPL AIN SUCH DEPOSIT. IN SUCH A CASE, THE PROPER COURSE IS THAT EITHER THE PERSON IN WHOSE BOOKS THE DEPOSIT APPEARS OR THE PE RSON IN WHOSE NAME THE DEPOSIT STANDS SHOULD BE CALLED UPON TO EXPLAIN THE DEPOSIT. IN THIS CASE, THE ACTION OF T HE REVENUE ALSO FAILS ON THAT COUNT. 26 26 X. HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. RAJ ESH KUMAR[ 306ITR 27] HAS HELD THAT WHEN THE AMOUNT OF THE DEPOSIT STANDS IN THE NAME OF THE WIFE OF THE ASSES SEE, IT CANNOT BE ADDED TO THE ASSESSEES INCOME AND THE MA TERIAL COLLECTED BEHIND THE BACK OF THE ASSESSEE WAS USED AGAINST HIM WITHOUT DISCLOSING THE MATERIAL OR GIVING AN OP PORTUNITY TO CROSS EXAMINE THE PERSON WHOSE STATEMENT HAS BEE N USED BY THE DEPARTMENT AGAINST THE ASSESSEE. IT IS A VI OLATION OF PRINCIPLES OF NATURAL JUSTICE. IN THIS CASE, THE A MOUNTS OF TRANSACTIONS HAVE BEEN ACCEPTED AS GENUINE IN THE H ANDS OF VARIOUS PERSONS WHO HAVE RECEIVED THE LOAN. FURTHER SHRI S. K. GUPTA WHO HAS ADMITTED OF PROVIDING ACCOMMODA TION ENTRIES HAVE CONFIRMED SO IN HIS STATEMENT DURING THE COURSE OF SURVEY BUT LATER ON FOR THE SAME TRANSAC TION HE AND HIS COMPANIES ARE GIVING CONFIRMATION CONTENDING THAT THESE ARE REAL LOANS AND SAME REVENUE ACCEPTS THE SE STATEMENTS. THEREFORE ON CONTRADICTORY STATEMENT O F SHRI S. K. GUPTA ADDITION HAS BEEN MADE IN THE HANDS OF T HE ASSESSEE WITHOUT GIVING AN OPPORTUNITY TO CROSS EXA MINE SHRI S.K. GUPTA WHO HAS AT THE FIRST INSTANCE CONFESSED, THEN 27 27 CONFIRMED THE ABOVE TRANSACTION. THEREFORE, THE INCONSISTENCY IS IN THE STATEMENT OF S.K. GUPTA INA SMUCH AS IN THE STATEMENT OF THE ASSESSEE. FROM THE ABOVE, IT IS APPARENT THAT SHRI S.K. GUPTA IS GIVING DIFFERENT S TATEMENTS AT THE DIFFERENT TIMES WHICH ARE ACCEPTED BY REVENU E AT ALL THE TIMES AT FACE VALUE WITHOUT COLLECTING ADEQUATE EVIDENCE AND PUTTING SHRI S. K. GUPTA FOR CROSS EXAMINATION AGAINST WHOM HE HAS GIVEN DIFFERING STATEMENTS. XI. THE AO HAS ALSO RELIED ON THE STATEMENT MADE BY THE COUNSEL OF SHRI S.K. GUPTA ON 24.12.2010 BEFORE THE AO OF S HRI S.K. GUPTA. THE COPY OF THE LETTER HAS BEEN REPROD UCED BY AO AT PAGE NO.18 AND IN PARA 8 OF THE ASSESSMENT OR DER. WE HAVE PERUSED THE PARTICULARS OF THAT LETTER RELIE D UPON BY THE AO. IT IS APPARENT THAT IT DOES NOT CONTAIN ANY RE FERENCE OF THE ASSESSEE. SECONDLY, IN THE LAST PARA OF THAT L ETTER, IT IS MENTIONED THAT DETAILS OF MEDIATORS, AMOUNT OF CASH RECEIVED, THE NAMES OF THE BENEFICIARIES, THE BANK FROM WHICH ENTRIES WERE PROVIDED AND THE AMOUNT ETC. TH IS INFORMATION PROVIDES THAT THE ACCOUNTING ENTRIES AR E THROUGH SOME MEDIATOR BUT NEITHER SHRI S.K. GUPTA IN HIS ST ATEMENT 28 28 HAS MENTIONED ANY SUCH MEDIATOR BUT HAS REFERRED AS SESSEE SHRI DEEN DAYAL GOEL AS A FAMILY FRIEND. THEREFORE , THERE IS A BASIC CONTRADICTION BETWEEN THE TWO EVIDENCES WHI CH ARE MERELY THE AVERMENT OF THIRD PARTIES AND ARE ACCEPT ED BY REVENUE WITHOUT ANY EVIDENCE. IT IS ALSO HIGHLY UNU SUAL FOR SHRI S.K. GUPTA TO ENTER IN TO PURPORTEDLY ALLEGED TRANSACTION WITH ASSESSEE THROUGH A MEDIATOR WHEN SHRI S. K. G UPTA REFERS ASSESSEE AS A FAMILY FRIEND. IN ANY CASE SUC H MEDIATOR IS NEITHER REFERRED IN THE ASSESSMENT OF THE ASSESS EE NOR CALLED FOR EXAMINATION IN BOTH THE SURVEY ON SHR I S.K. GUPTA AND ANOTHER ON ASSESSEE. XII. ACCORDING TO SECTION 69, WHICH OPENS WITH THE WORDS , WHEREIN THE FINANCIAL YEAR IMMEDIATELY PROVIDING T HE ASSESSMENT YEAR, THE ASSESSEE HAS MADE INVESTMENT . THUS, IN THE FIRST INSTANCE, IT IS INCUMBENT UPON T HE REVENUE TO ESTABLISH THAT THERE WAS ANY INVESTMENT MADE BY THE ASSESSEE, AND THAT SUCH INVESTMENTS WERE NOT RECORD ED IN THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE THEN O NLY ADDITION CAN BE MADE U/S 69 OF THE ACT. IN THE PRE SENT CASE, EXCEPT THE FREQUENT CHANGING STATEMENT OF SHRI S.K. GUPTA, 29 29 REVENUE DOES NOT HAVE ANY EVIDENCE OF SUCH INVESTME NT MADE BY THE ASSESSEE. IN ABSENCE OF ANY SUCH EVIDE NCE OF MAKING SUCH INVESTMENT APART FROM THE ENTRIES FOUND IN THE BOOKS OF ACCOUNTS WHICH WAS ALSO NOT THE FINAL BOOK S OF ACCOUNTS OF SHRI S.K. GUPTA, THERE WAS NO MATERIAL WHICH COULD LINK THE AMOUNT OF THE ADDITION OF RS.9,36,56 ,472/- BY THE ASSESSEE. THEREFORE, WE ARE OF THE VIEW THAT P ROVISIONS OF SECTION 69 WERE NOT ATTRACTED IN THE PRESENT CAS E. OUR VIEW IS FURTHER SUPPORTED CHAND AGGARWAL [300 ITR 4 26] AND FURTHER HONBLE GUJARAT HIGH COURT IN THE CASE OF USHA KANT AND SONS [282 ITR 553 (GUJ.)]. WE ARE ALSO CONSTRAINED TO STATE FURTHER THAT THOUGH THERE MAY BE STRONG POSSIBLE INFERENCE, A FURTHER INVESTIGATION IN THE FORM OF ORAL EXAMINATION OF THE PARTIES CONCERNED AND THROWING B ACK ONUS ON THE RESPECTIVE PARTIES BY AFFORDING FULL OP PORTUNITY OF CROSS EXAMINATION MIGHT HAVE LED TO MORE POSITIV E CONCLUSION ON EITHER SIDE. SAME HAS NOT BEEN AT AL L LOOKED INTO BY THE AO. XIII. FURTHER COMMUNICATION OF CBDT NO F. NO. 286/98/20 13- IT (INV. I1) DATED 18/12/2014 IT ALSO SUPPORTS T HE ISSUE THAT 30 30 THERE IS A NEED TO GATHER EVIDENCE AND OFFICER S HOULD NOT STOP AT GETTING ADMISSION. IT WAS FURTHER STATED IN THAT COMMUNICATION THAT IT IS ALSO SEEN THAT MANY SUCH ADMISSIONS ARE RETRACTED IN THE SUBSEQUENT PROCEEDI NGS SINCE THE SAME ARE NOT BACKED BY CREDIBLE EVIDENCE. SUCH ACTIONS DEFEAT THE VERY PURPOSE OF SEARCH/SURVEY OPERATIONS AS THEY FAIL TO BRING THE UNDISCLOSED INCOME TO TAX IN A SU STAINABLE MANNER LEAVE ALONE LEVY OF PENALTY OR LAUNCHING OF PROSECUTION. FROM THIS COMMUNICATION IT IS APPAREN T THAT BOARD IS ALSO AWARE OF THE ISSUES THAT NO ADDITIONS CAN BE SUSTAINED MERELY ON THE BASIS OF ADMISSION WITHOUT ANY EVIDENCE. XIV. IT WAS ALSO ARGUED THAT EVIDENCE FOUND FORM THE SUR VEY AT THE PLACE OF THIRD PARTY WHICH DOES NOT BEAR HIS SIGN ATURE, NOT IN HIS HANDWRITING, DOES NOT HAVE ANY CORROBORATIVE EVIDENCE AND IT IS THE ENTRIES RECORDED BY HIM WHICH IS ALSO NOT CONFIRMED BY HIM ULTIMATELY. IT IS FACT THAT THE AC COUNT STATEMENT PURPORTEDLY IN THE NAME OF THE ASSESSEE W AS FOUND FROM SHRI S K GUPTA AND NOT FROM THE ASSESSEE. DURI NG THE SURVEY AT THE PREMISES OF THE ASSESSEE REVENUE COUL D NOT FIND 31 31 ANY DOCUMENT EVIDENCING EVEN SUCH A TRANSACTION. FU RTHER THE COPY OF ACCOUNT EXTRACTED BY REVENUE FROM SHRI S K GUPTA WAS DENIED BY ASSESSEE HAVING ANY SUCH TRANSA CTION IN THE FORM OF RETRACTION. FURTHER THE ENTRIES ARE ACC EPTED BY REVENUE IN THE CASE OF OTHER ASSESSEE, THEREFORE ME RELY SOME DOCUMENT FOUND FROM THE PREMISES OF THIRD PARTY WHI CH CANNOT BE CORROBORATED INDEPENDENTLY AND MORE SO WH EN IN SURVEY AT THE PREMISES OF THE ASSESSEE NOTHING WAS FOUND, ADDITION IN THE HANDS OF THE ASSESSEE IS UNJUSTIFI ED. XV. IN THE END, THE ASSESSEE HAS RELIED UPON THE DECISI ON OF DELHI BENCH OF THE ITAT IN THE CASE OF DCIT VS. RAJ HANS TOWER PVT. LTD. IN ITA NO.4922 & 4257/DEL/2011 FOR AY 200 8-09 ORDER DATED 12.06.2014. THE CONTENTION OF THE ASSE SSEE IS THAT GROUND NO.1 IN ITA NO.4922/DEL/2011 SQUARELY C OVERS THE ISSUE WHICH IS ON THE IDENTICAL FACTS FOR THE S AME ASSESSMENT YEAR AND ARISING FROM THE SAME STATEMENT OF SHRI S.K. GUPTA. IT WAS HIS FURTHER SUBMISSION THAT ITA T HAS DELETED AN ADDITION AFTER RELYING ON THE DECISION O F HONBLE HIGH COURTS AND HONBLE SUPREME COURT. THEREFORE, THE SAME MAY BE FOLLOWED. AGAINST THIS, LD. DR COULD N OT POINT 32 32 OUT ANY DIFFERENCE IN THAT ORDER OF ITAT AS WELL AS THE FACTS OF THE PRESENT CASE. WE HAVE CAREFULLY PERUSED PAR AS NO.6 TO 13 OF THAT ORDER WHICH IS REPRODUCED AS UNDER :- 6. THE RELEVANT FACTS ARE THAT THE ASSESSEE ENGAGE D IN THE BUSINESS OF REAL ESTATE AND BUILDING CONSTRUCTION ETC. WAS SUBJECTED TO SURVEY OPERATION U/S 133A OF THE ACT BY THE INVESTIGATION WING AT ITS BU SINESS PREMISES. DURING THE COURSE OF SURVEY STATEMENTS OF SHRI. R. C. GOYA L, DIRECTOR OF THE ASSESSEE COMPANY WAS RECORDED, WHEREIN HE DISCLOSED A SUM OF RS. 15,00,55,000/- AS ADDITIONAL INCOME OF THE COMPANY OUTSIDE THE REGULA R BOOKS OF ACCOUNTS AS PER THE DETAILS GIVEN BELOW:- SL. NO. HEAD AMOUNT IN RS. 1 ON ACCOUNT OF ACCOMMODATION ENTRIES TAKEN IN THE SHAPE OF UNSECURED LOANS(PAGE 11 OF THE STATEMENT OF SH. R.C. GOYAL) 7,10,55,000/ - 2 UNDISCLOSED CASH RECEIPTS (PAGE 12 OF THE STATEMENT OF SH. R. C. GOYAL) 6,65,00,000/ - 3 UNEXPLAINED CASH CREDITS IN THE CASH BOOK (PA GE 11 OF THE STATEMENT OF SH. R. C. GOYAL) 1,25,00,000/ - TOTAL DISCLOSED AMOUNT 15,00,55,000/- 7. THE ASSESSEE, HOWEVER HAD NOT INCLUDED ITS ABOVE UNACCOUNTED INCOME DECLARED AT THE TIME OF SURVEY IN ITS RETURN OF INCOME. A SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE BY THE AO SPECIFI CALLY ASKING THEREIN AS TO WHY THE DISCLOSED UNACCOUNTED AMOUNT BY SHRI R.C. G OYAL ON BEHALF OF THE ASSESSEE COMPANY AT THE TIME OF SURVEY MAY NOT BE A DDED BACK IN THE TOTAL INCOME OF THE ASSESSEE COMPANY? IN REPLY, THE ASSE SSEE ALLEGED THAT SO CALLED SURRENDERED WAS NOT VOLUNTARY AND BONAFIDE AND THE SAME WAS OBTAINED IN AN ILLEGAL AND ARBITRARY MANNER, PARTICULARLY IN THE A BSENCE OF ANY EVIDENCE OR MATERIAL IN RELATION TO SUCH SURRENDER WAS CALLED F OR AND AS SUCH THE ALLEGED SURRENDER WAS RETRACTED. REFERENCE OF CBDT CIRCULA R NO. 286 DATED 10/3/2003 WAS MADE. IT WAS CONTENDED THAT SURRENDE R AT THE TIME OF SEARCH OR SURVEY CANNOT BE A SOLE BASIS OF ADDITION WITHOUT C ORROBORATION AND PROPER APPERCEPTION OF FACTS AND EVIDENCE ON RECORD. THE AO COUNTERED THE CAUSE SHOWN BY THE ASSESSEE WITH THIS OBSERVATION THAT TH E DISCLOSURE OF UNACCOUNTED INCOME AT THE TIME OF SURVEY IS BASED O N THE EVIDENCE GATHERED BY THE DEPARTMENT AT THE TIME OF SURVEY IN THE CASE OF SHRI S. K. GUPTA, CHARTERED ACCOUNTANT AND ALSO THE DIRECTOR IN THE A SSESSEE COMPANY AND FROM THE BUSINESS PREMISES OF THE ASSESSEE COMPANY ITSELF. THE AO OBSERVED FURTHER THAT ANOTHER DIRECTOR SHRI R. C. GOYAL AVAI LABLE AT THE TIME OF SURVEY AT THE BUSINESS PREMISES OF THE ASSESSEE COMPANY WA S DULY CONFRONTED WITH THE EVIDENCES, ON THE BASIS OF WHICH THE DISCLOSURE WAS MADE. THE AO MENTIONED THAT DURING THE SURVEY NO COERCION WAS MA DE BY THE SURVEY TEAM 33 33 AS THE ASSESSEE DID NOT REGISTER ANY COMPLAINT AGAI NST THE ALLEGED ACT. THE ASSESSEE ON THE OTHER HAND CONTENDED THAT THE ONLY OBSERVATION MADE IN THE SHARED STATEMENT OF SHRI R.C. GOYAL IS THAT THE AMO UNT WAS RECEIVED FROM VARIOUS FAKE COMPANIES. SUCH OBSERVATION ALONE CAN NOT BE ANY BASIS FOR THE ADDITION AND IS THUS HIGHLY ARBITRARY AND UNCALLED FOR WITHOUT PROPER OPPORTUNITY OR INVESTIGATION. IT WAS CONTENDED THA T THERE IS NO REFERENCE TO NAMES OF THE COMPANIES OR HOW AND IN WHAT MANNER TH E INFERENCE WAS DRAWN RELATING TO ALLEGED ACCOMMODATION ENTRIES. IT WAS SUBMITTED THAT THESE ARE ALL GENUINE TRANSACTION THROUGH BANKING CHANNELS AND CO RRECTNESS OF ALL THESE TRANSACTIONS ARE FULLY SUPPORTED AND VERIFIABLE. T HE ASSESSEE ENCLOSED COPY OF ACCOUNT, INCOME TAX AND ASSESSMENT PARTICULARS A S WELL AS BALANCE-SHEET OF ALL THE PARTIES IN SUPPORT OF THESE ENTRIES WITH TH IS SUBMISSION THAT IT IS SELF- EVIDENT THAT GENUINENESS OF ALL THESE ENTRIES DULY RECORDED IN THE BOOKS OF ACCOUNTS ARE NOT IN DISPUTE AND THERE IS NO CASE OF ANY ADVERSE INFERENCE. IT WAS SUBMITTED THAT ALL SUCH ENTRIES WERE LOAN TO TH E ASSESSEE COMPANY AND HAS ALREADY BEEN REPAID IN THE NEXT YEARS. IT WAS ALSO CONTENDED THAT MOST OF THE LOANS OUT OF RS.7,10,55,000/-(ADDED U/S 68 OF T HE ACT) ARE OLD AND CONTINUING FROM EARLIER YEARS. IN SUPPORT REFERENC E WAS MADE TO AUDITED BALANCE-SHEET SHOWING THAT DURING THE YEAR NO FRESH LOAN WAS RECEIVED AND ON THE CONTRARY UNSECURED LOANS WHICH REMAINED SUBJECT MATTER OF DISPUTE HAS COME DOWN AS COMPARED TO PRECEDENT YEAR AND AS SUCH THERE IS NO PRIMA FACIE BASIS FOR ANY SUCH ADDITION. IT WAS CONTENDED THAT THE ASSESSING OFFICER HAS NOT MADE ANY VERIFICATION FROM CONCERNED COMPANIES OR FROM OFFICE OF REGISTRAR OF COMPANIES AND ADVERSE INFERENCE WAS DR AWN ON MECHANICAL MANNER MERELY ON THE GROUND THAT SURRENDER WAS MADE AT THE TIME OF SURVEY. THE AO WAS NOT AGREEABLE WITH THESE CONTENTIONS OF THE ASSESSEE AND MADE ADDITION OF RS.7,10,55,000/- U/S 68 OF THE ACT ON A CCOUNT OF BOGUS ACCOMMODATION ENTRIES. THE LD. CIT (A) HAS HOWEVER DELETED THE ADDITION BEING SATISFIED WITH THE EXPLANATION/CONTENTION OF THE ASSESSEE. THIS ACTION OF THE LD. CIT (A) HAS BEEN IMPUGNED BY THE REVENUE IN GROUND NO. 1 OF IT ITS PRESENT APPEAL. 8. IN SUPPORT OF THE GROUND, THE LD. DR HAS BASICAL LY PLACED RELIANCE ON THE ASSESSMENT ORDER. SHE SUBMITTED THAT THE ASSESS EE HAS RETRACTED ITS STATEMENT MADE DURING THE COURSE OF SURVEY MAKING T HE SURRENDER OF RS.7,10,55,000/- AFTER THE LAPSE OF 3 MONTHS FROM T HE DATE OF SURVEY THUS IT WAS NOTHING BUT AN AFTERTHOUGHT. THERE IS NO EVIDE NCE THAT THE STATEMENTS OF SHRI R.C. GOYAL WERE RECORDED DURING THE COURSE OF SURVEY UNDER DURESS OR COERCION NOR ANY TO THEIR EFFECT IMMEDIATELY AFTER THE SURVEY. THE DOCUMENTS FOUND DURING THE COURSE OF SURVEY WAS SUFFICIENT TO SUPPORT THE ALLEGATION OF THE AO THAT ENTRIES OF RS.7,10,55,000/- WERE NOTHIN G BUT ACCOMMODATION ENTRIES TAKEN IN THE SHAPE OF UNSECURED LOANS. THE AO WAS THUS JUSTIFIED IN MAKING THE ADDITION OF THE SAID AMOUNT ON ACCOUNT O F BOGUS ACCOMMODATION ENTRIES WHICH WAS ALSO ADMITTED BY THE ASSESSEE DUR ING THE COURSE OF SURVEY WHILE SURRENDERING THE SAME. SHE REFERRED CONTENTS OF PARA NO.8 OF THE ASSESSMENT ORDER. 9. THE LD. AR ON THE OTHER HAND REITERATED SUBMISSI ONS MADE BEFORE THE AUTHORITIES BELOW. HE ALSO REFERRED PAGE NO. 1 TO 130 OF THE PAPER BOOK I.E. DETAILS OF OUTSTANDING LOANS WITH SUPPORTING DOCUME NTS RELATING TO LOANS. THE LD. AR SUBMITTED FURTHER THAT IN EARLIER YEARS, ASS ESSMENT U/S 143(3) WAS MADE. AS PER THE BALANCE-SHEET DETAILS FURNISHED, MOST OF THE UNSECURED 34 34 LOANS FROM THE STATED 15 COMPANIES IN THE ASSESSMEN T ORDER ARE OLD BELONGING TO EARLIER YEARS AND THE OUTSTANDING LOAN AMOUNT HA S BEEN PARTLY REPAID DURING THE YEAR UNDER CONSIDERATION. MOST OF THE U NSECURED AMOUNT RECEIVED BY THE ASSESSEE COMPANY FROM THE ABOVE LENDER COMPA NIES ARE CARRIED FORWARD OPENING BALANCES FROM EARLIER YEARS. DURIN G THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAD REPAID RS.1,15,40,0 00/-TO THREE PARTIES AND HAS RECEIVED TO ONLY RS.23 LACS FROM THREE PARTIES OUT OF THE ABOVE MENTIONED COMPANIES. HE SUBMITTED THAT THE IMPUGNED UNSECURE D LOAN OF RS.7.10,55,000/- HAS BEEN RECEIVED FROM VARIOUS COM PANIES THROUGH ACCOUNT PAYEE CHEQUES/DRAFTS AND THE ASSESSEE TO ESTABLISH ITS GENUINENESS HAD FILED COPIES OF CONFIRMATIONS/AFFIDAVITS FROM THE SAID PA RTIES CONFIRMING THE PAYMENT OF THE AMOUNT AS UNSECURED LOAN, COPIES OF INCOME TAX RETURNS, THEIR PAN, THEIR BALANCE-SHEETS, THEIR BANK STATEMENTS ET C IN SUPPORT OF THE CLAIM. THE AO HAS MADE THE ADDITION WITHOUT VERIFYING THE CORRECTNESS OF THESE DOCUMENTS AND MERELY ON THE BASIS OF STATEMENT OF S HRI. R. C. GOYAL, DIRECTOR OF THE ASSESSEE COMPANY RECORDED DURING TH E COURSE OF SURVEY PROCEEDINGS. HE SUBMITTED THAT IT IS INCORRECT TO SAY ON PART OF THE AO THAT SHRI. S. P. GUPTA WAS DIRECTOR OF LENDER COMPANIES OR IN CONTROL THEREOF. SHRI GUPTA IS DIRECTOR ONLY IN M/S CHAMP FINVEST PV T. LTD AND HAS NOT BEEN ASSOCIATED WITH OTHER COMPANIES EITHER AS A DIRECTO R OR SHARE HOLDER OR IN PROFESSIONAL CAPACITY, HENCE THE FINDING OF THE ASS ESSING OFFICER THAT SHRI S. K. GUPTA WAS CONTROLLING THESE COMPANIES IS FACTUAL LY INCORRECT. HE SUBMITTED THAT THE ASSESSEE WAS NOT PROVIDED ANY OP PORTUNITY FOR CROSS- EXAMINATION OF SHRI. S. K. GUPTA AND AS SUCH GENER AL STATEMENT OF SHRI S. K. GUPTA IS NOT RELEVANT AND ADMISSIBLE. WHILE REFER RING DECISIONS RELIED UPON BY THE ASSESSEE BEFORE THE AUTHORITIES BELOW, THE L D. AR ALSO PLACED RELIANCE ON THE FOLLOWING DECISIONS:- CIT VS. MADHSY FILMS P. LTD 301 ITR 384 (DELHI) CIT, KERALA VS. MANICK SONS 74 ITR 1 (SC) CIT VS. S. KHADER KHAN SON (2012) 79 DTR (SC) 184 SONIA MAGU VS. CIT (2011) 336 ITR 227 (DELHI) CIT VS. ANIL BHALLA (2010) 322 ITR 191 (DELHI) 10. CONSIDERING THE ABOVE SUBMISSIONS, WE FIND FROM THE ASSESSMENT ORDER THAT DURING THE COURSE OF SURVEY BY THE INVES TIGATION WING AT THE OFFICE PREMISES OF SHRI S. K. GUPTA, CHARTERED ACCOUNTANT BY PROFESSION SOME COMPUTERS AND LAPTOPS WERE IMPOUNDED. THE BACKUP F ILES RELATING TO LEDGER ACCOUNTS WERE RETRIEVED AND IT WAS REVEALED THAT DU RING THE YEAR UNDER CONSIDERATION SHRI S. K. GUPTA HAD PROVIDED ACCOMMO DATION ENTRIES TO THE ASSESSEE COMPANY THROUGH ITS DIRECTOR SHRI R. C. GO YAL. THE SUMMARY OF THESE LEDGER ACCOUNTS IS AS UNDER:- SL NO. PARTICULARS CLOSING BALANCE REMARKS DEBIT CREDIT 1 AGM HOLDINGS LTD. 350000 INDIRAPU RAM 2 BELIEF CHITS P. LTD 23525000 INDIRAPURAM 3 BERIWAL INVESTMENT AND CHIT FUND P. LTD 175000 INDIRAPURAM 35 35 4 CHAMP FINVEST P. LTD 2000000 INDIRAPURAM 5 CUBIC COMMERCIAL RESOURCES LTD 1000000 INDIRAPURAM 6 DHAMAKA TRADING AND CONSTRUCTION CO.P LTD 2500000 INDIRAPURAM 7 GIRIASHO CO. P. LTD 2500000 INDIRAPURAM 8 NOVINO MARKETING P. LTD. 1116610 INDIRAPURAM 9 V.A. FOODS PVT. LTD 150000 INDIRAPURAM 10 VAUDEVA FARMS P. LTD 4600000 INDIRAPURAM 11 V IAGRA TRADING CO.P. LTD 140000 INDIRAPURAM 12 BELIEF CHITS P. LTD 16550000 KAUSHAMBI 13 MITSU SECURITIES MANAGEMENT P. LTD 8940000 KAUSHAMBI 14 V.A. FOODS P. LTD 1500000 KAUSHAMBI 15 MITSU SECURITIES MANAGEMENT P. LTD 7300000 HEAD OFFICE TOTAL 12,91,610/- 7,10,55,000/- 11. THE COPIES OF THIS LEDGER ACCOUNTS WERE SHOWN TO SHRI R.C. GOYAL, DIRECTOR OF THE ASSESSEE COMPANY AVAILABLE AT THE T IME OF SURVEY AS THE BUSINESS PREMISES OF THE ASSESSEE COMPANY. IN THIS REGARD, QUESTION NO. 22 WAS RAISED TO SHRI R. C. GOYAL AND HIS STATEMENT MA DE IN RESPONSE THERETO WAS RECORDED ON OATH, WHEREIN HE SURRENDERED THESE ENTRIES AS UNDISCLOSED INCOME FOR TAX PURPOSES. THESE QUESTION NO. 22 AND THE STATEMENT MADE BY THE SHRI GOYAL IN RESPONSE THERETO ARE BEING REPROD UCED HEREUNDER FOR A READY REFERENCE:- Q.22. DURING THE COURSE OF SURVEY, IT HAS BEEN NOT ICED THAT YOU HAVE RECEIVED ACCOMMODATION ENTRIES FROM VARIOUS FAKE CO MPANIES WHO ARE BASICALLY ENTRY PROVIDERS. THESE ENTRIES AMOUNTING TO RS.7,10,55,000/- HAVE BEEN RECEIVED IN THE CASE OF M/S RAJHANS TOWERS(P) LTD. IN WHICH YOU ARE ONE OF THE DIRECTORS. ANS. I HAVE CAREFULLY SEEN THE ENTRIES IN THE CURRENT YEARS BALANCE SHEET AND HEREBY SURRENDER THESE ENTRIES AS MY UNDISCLOSE D INCOME FOR TAX PURPOSES. THIS INCOME HAS BEEN GENERATED FROM MY R EAL ESTATE BUSINESS. 12. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE COMPANY WAS ALSO CONFRONTED ON THIS ISSUE BY SUPPLYING THE COPY OF STATEMENT AS WELL AS IMPOUNDED MATERIALS. THE ASSESSEE CONTENDED THA T THE ONLY OBSERVATION MADE IN THE SAID STATEMENT IS THAT THIS AMOUNT WAS RECEIVED FROM VARIOUS FAKE COMPANIES WHICH WAS WITHOUT ANY BASIS AND HIGHLY AR BITRARY AND UNCALLED FOR. IT WAS WITHOUT PROPER OPPORTUNITY OR INVESTIG ATION. IT WAS CONTENDED THAT THERE IS NO REFERENCE TO NAMES OF THE COMPANIE S OR HOW AND IN WHAT MANNER THE INFERENCE WAS DRAWN RELATING TO ALLEGED ACCOMMODATION ENTRIES. THE ASSESSEE CLAIMED THAT ALL THESE TRANSACTIONS AR E GENUINE MADE THROUGH BANKING CHANNELS AND CORRECTNESS OF ALL THESE TRANS ACTIONS ARE FULLY SUPPORTED AND VERIFIABLE. THE ASSESSEE HAS ENCLOSED COPIES O F ACCOUNT, INCOME TAX AND ASSESSMENT PARTICULARS, BALANCE-SHEET OF ALL THE PA RTIES IN SUPPORT OF THESE ENTRIES UNDER THE CERTIFICATE BELOW THE INDEX OF TH E PAPER BOOK THAT THOSE WERE FILED BEFORE THE AUTHORITIES BELOW AND WITH TH IS SUBMISSION THAT ALL THESE ENTRIES HAVE BEEN DULY RECORDED IN THE BOOKS OF ACC OUNTS AND THERE IS NO CASE OF ANY ADVERSE INFERENCE. IT WAS SUBMITTED THAT AL L SUCH ENTRIES WERE LOAN TO THE ASSESSEE COMPANY AND HAS ALREADY BEEN PAID IN T HE NEXT YEARS. IT WAS 36 36 CONTENDED THAT THE ASSESSEE HAD REQUESTED TO THE AO THAT IN CASE OF ANY DOUBT AND IF IT IS SO REQUIRED, THE AO MAY KINDLY MAKE NE CESSARY VERIFICATION/CONFIRMATION FROM THE CONCERNED PARTIE S BUT THE AO DID NOT HEED REQUEST OF THE ASSESSEE AND REJECTED THE EXPLANATIO N OFFERED BY THE ASSESSEE WITH THIS OBSERVATION THAT DURING THE COURSE OF THE SURVEYS CONDUCTED AT THE PREMISES OF SHRI S. K. GUPTA, IT WAS ADMITTED THAT HE HAD PROVIDED ACCOMMODATION ENTRIES TO VARIOUS PERSONS/CONCERNS T HROUGH A NUMBER OF CONCERNS EFFECTIVELY CONTROLLED BY HIM. THE A.O OBS ERVED FURTHER THAT SIMULTANEOUSLY, DURING THE COURSE OF SURVEY CONDUCT ED AT THE BUSINESS PREMISES OF THE ASSESSEE COMPANY (IN WHICH SHRI S. K. GUPTA ALSO A DIRECTOR), SHRI R. C. GOYAL, ANOTHER DIRECTOR OF TH E ASSESSEE COMPANY ALSO ADMITTED THAT HE HAD RECEIVED THE ACCOMMODATION ENT RIES FROM THE CONCERNED PARTIES MENTIONED IN THE ABOVE TABLE, WHEN THE LEDG ER ACCOUNTS OF THESE COMPANIES WERE SHOWN TO HIM. THE A.O HAS MENTIONED THAT THE REPLY OF THE ASSESSEE AT THIS STAGE THAT THESE WERE NOT THE ACCO MMODATION ENTRIES BUT ACTUALLY THIS WERE UNSECURED LOANS, WHICH HAS BEEN RETURNED IN THE SUBSEQUENT YEARS IS NOT CONVINCING AS IT IS A COCK AND BULL STORY TO REBUT FROM HIS EARLIER STATEMENT IN WHICH HE HAD DISCLOSED HIS UNACCOUNTED INCOME. HE NOTED FURTHER THAT THE BALANCE-SHEET OF THESE CONCE RNS REVEAL THAT THESE COMPANIES DO NOT HAVE ANY RESERVE AND SURPLUS, RATH ER LOSSES OF THEM HAVE AS ON 31/3/2008. 13. FROM THE ASSESSMENT ORDER ON THE ISSUE AS DISCU SSED ABOVE, WE FIND THAT THE AO HAS NOT BOTHERED HIMSELF TO VERIFY THE CORRECTNESS OF THE DOCUMENTS FILED BY THE ASSESSEE IN SUPPORT OF THE G ENUINENESS OF THE CLAIMED UNSECURED LOAN OF RS.7,10,55,000/- FROM THE ABOVE S TATED COMPANIES. THE ASSESSEE AS IT IS EVIDENT FROM THE ASSESSMENT ORDER HAD FURNISHED THE PRIMARY EVIDENCES, LIKE COPY OF ACCOUNT, INCOME TAX RETURN AND ASSESSMENT PARTICULARS AS WELL AS BALANCE-SHEETS OF ALL THE PARTIES WITH T HIS SUBMISSION THAT ALL THESE ENTRIES ARE DULY RECORDED IN THE BOOKS OF ACCOUNTS AND THAT THE ENTIRE LOAN AMOUNT WAS PAID THROUGH CHEQUES/DRAFTS. WE THUS FI ND THAT THE INITIAL BURDEN TO ESTABLISH THE GENUINENESS OF THE CLAIMED UNSECUR ED LOAN WAS DISCHARGED BY THE ASSESSEE. THEREAFTER ONUS WAS SHIFTED ON THE A O TO DISLODGE THOSE PRIMARY EVIDENCES AS UNRELIABLE EVIDENCES TO ESTABL ISH HIS ALLEGATION THAT THESE WERE NOTHING BUT ACCOMMODATION ENTRIES ONLY. IT IS NOW AN ESTABLISHED PROPOSITION OF LAW THAT AN ADDITION CANNOT BE MADE MERELY ON THE BASIS OF STATEMENTS RECORDED DURING SEARCH OR SURVEY SURREND ERING AN AMOUNT FOR THE ADDITION UNLESS IT IS CORROBORATED BY FURTHER EVIDE NCE. EXPERIENCING FAILURE OF REVENUES CASE MADE SOLELY ON THE BASIS OF STATE MENT RECORDED DURING THE COURSE OF SURVEY/SEARCH, THE CBDT VIDE ITS CIRCULAR NO. 286 DATED 10/3/2003 HAS MADE IT CLEAR THAT THE AO SHOULD AVOID MAKING A DDITION SOLELY ON THE BASIS OF SURRENDER MADE DURING THE COURSE OF SEARCH /SURVEY AND SHOULD MAKE EFFORT TO GATHER EVIDENCE IN SUPPORT SO THAT IN CAS E OF RETRACTION OF THE SURRENDER SUBSEQUENTLY, THE CASE OF REVENUE SHOULD NOT BE FAILED. THERE IS NO DENIAL BY THE AO THAT THE ABOVE STATED DOCUMENT S WERE FURNISHED BY THE ASSESSEE BEFORE HIM TO ESTABLISH THE GENUINENESS OF THE CLAIMED UNSECURED LOAN FROM THE ABOVE STATED PARTIES NOR IS THERE ANY ALLEGATION BY THE AO THAT ON VERIFICATION THOSE DOCUMENTS FILED BY THE ASSESS EE WAS FOUND BOGUS OR UNRELIABLE. THE AO HAS ARRIVED AT THE CONCLUSION T HAT THE CLAIMED UNSECURED LOAN WAS NOTHING BUT ACCOMMODATION ENTRIES MERELY O N THE BASIS OF STATEMENTS OF SHRI S. K. GUPTA, A CHARTERED ACCOUNT ANT AND SHRI R. C. GOYAL, A DIRECTOR OF THE ASSESSEE COMPANY. THERE IS NOTHI NG ON RECORD TO DRAW AN 37 37 INFERENCE EXCEPT THOSE STATEMENTS TO ARRIVE AT THIS CONCLUSION THAT THE CLAIMED UNSECURED LOAN OF RS.7,10,55,000/- FROM THE ABOVE N AMED PARTIES WAS NOT CORRECT. THE AO HAS ALSO NOT BOTHERED HIMSELF TO V ERIFY THE EXPLANATION OF THE ASSESSEE THAT AS PER THE BALANCE-SHEETS FURNISH ED, MOST OF THE UNSECURED LOAN AMOUNT RECEIVED BY THE ASSESSEE COMPANY FROM T HE ABOVE LENDER COMPANIES ARE CARRIED FORWARD OPENING BALANCES FROM EARLIER YEARS AND DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE HA D REPAID RS.1,15,40,000/- TO THREE PARTIES AND HAD RECEIVED ONLY RS.23 LACS F ROM THREE PARTIES OUT OF THE ABOVE MENTIONED COMPANIES. UNDER THESE CIRCUMSTANC ES, WE ARE OF THE VIEW, THAT THE LD. CIT(A) HAS RIGHTLY HELD THE ACTION OF THE AO IN MAKING THE ADDITION OF RS.7,10,55,000/- U/S 68 OF THE ACT AS U NJUSTIFIED. THE FIRST APPELLATE ORDER IN THIS REGARD IS ALSO WELL SUPPORT ED BY THE DECISIONS OF HONBLE HIGH COURTS AND OF HONBLE SUPREME COURT FO LLOWED BY THE LD. CIT(A). THE HONBLE SUPREME COURT IN THE CASE OF C IT VS. LOVELY EXPORTS (P) LTD (2008) 216 CTR 195 (SC) HAS BEEN PLEASED TO HOLD THAT EVEN IF THE SHARE APPLICATION MONEY RECEIVED BY THE APPELLANT C OMPANY IS FROM ALLEGED BOGUS SHARE HOLDER, WHOSE IDENTITY IS PRODUCED BY T HE APPELLANT COMPANY, THE REVENUE CAN ALWAYS PROCEED AGAINST SUCH SHARE HOLDE RS AND IF NECESSARY RE- OPEN THEIR INDIVIDUAL ASSESSMENT. THE HONBLE JURI SDICTIONAL DELHI HIGH COURT IN THE CASE OF DWARKA DHEESH INVESTIGATION (P ) LTD. AND DWARKA DHEESH CAPITAL PVT LTD (SUPRA) VIDE ITS JUDGMENT DA TED 2/8/2010 HAS BEEN PLEASED TO HOLD THAT THE ONUS OF PROOF IS NOT A STA TIC ONE. THOUGH IN SECTION 68 PROCEEDINGS, THE INITIAL BURDEN OF PROOF LIES ON THE ASSESSEE LET ONCE HE PROVES THE IDENTITY OF CREDITORS/SHARE APPLICANTS B Y EITHER FURNISHING THEIR PAN OR INCOME TAX ASSESSMENT AND SHOWS THE GENUINEN ESS OF TRANSACTION BY SHOWING MONEY ENTERED IN HIS BOOKS EITHER BY ACCOUN T PAY CHEQUE OR BY DRAFT OR BY ANY OTHER MODE, THEN THE ONUS OF PROOF WOULD SHIFT TO THE REVENUE. AGAIN IN THE CASE OF SONIA MAGU VS. CIT (SUPRA), TH E HONBLE DELHI HIGH COURT HAS BEEN PLEASED TO HOLD THAT WHERE THE ASSES SEE HAD MADE A SURRENDER AT THE TIME OF SEARCH REGARDING ASSETS, THE ACQUISI TION OF WHICH SHE COULD SUBSEQUENTLY EXPLAINED, THERE CANNOT BE ANY ADDITIO N REGARDING UNEXPLAINED ASSETS BASING ON THE STATEMENT GIVEN AT THE TIME OF SEARCH. IT IS ALSO AN ESTABLISHED PROPOSITION OF LAW THAT THE LOAN AMOUNT PERTAINING TO EARLIER YEARS CANNOT BE ADDED DURING THE YEAR UNDER CONSIDERATION AS PER THE PROVISIONS OF SECTION 68 OF THE ACT. THE HONBLE SUPREME COURT I N THE CASE OF CIT VS. S. KHADER KHAN SON (SUPRA) HAS BEEN PLEASED TO HELD TH AT PROVISIONS U/S 133A DOES NOT EMPOWER ANY INCOME TAX AUTHORITY TO EXAMIN E ANY PERSON OF AUTHORITY AND THEREFORE ANY ADMISSION MADE IN A STA TEMENT RECORDED DURING SURVEY CANNOT BY ITSELF BE MADE THE BASIS FOR ADDIT ION. IN THE CASE OF CIT VS. ANIL BHALLA (SUPRA), THE DECISION OF THE TRIBUNAL D ELETING THE ADDITION AFTER EXAMINING THE ENTIRE EVIDENCE ON RECORD INCLUDING T HE STATEMENTS MADE BY THE ASSESSEE DURING THE SEARCH PROCEEDINGS AS WELL AS BEFORE THE ASSESSING OFFICER, WITH THIS FINDING THAT THE ADDITION COULD NOT BE SUSTAINED IN THE ABSENCE OF ANY OTHER CORROBORATIVE EVIDENCE, HAS BE EN UPHELD BY THE HONBLE DELHI HIGH COURT. IN THAT CASE THERE WAS NO INDEPEN DENT MATERIAL TO SHOW THAT JOTTINGS OF PAPER REPRESENTED UNACCOUNTED TRAN SACTION OF THE ASSESSEE AND THE TRANSACTIONS WERE EXPLAINED FROM BOOKS OF THE C OMPANY AS RELATING TO PROJECTS UNDERTAKEN BY IT. IN THE PRESENT CASE BEF ORE US, WE FIND THAT THE LD. CIT(A) HAS PASSED A COMPREHENSIVE AND REASONED ORDE R AFTER DISCUSSING THE CASE OF THE PARTIES ON ISSUE IN DETAILS. THE SAME IS UPHELD. GROUND NO. 1 IS ACCORDINGLY REJECTED. 38 38 25. RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINA TE BENCH OF THE TRIBUNAL AS WELL AS DETAILED REASONING GIVEN BY US ABOVE, WE ARE ALSO OF THE VIEW THAT IT COVERS THE ISSUE IN THIS A PPEAL AND NO ADDITION U/S 69 CAN BE MADE IN THE HANDS OF THE ASSESSEE. W E THEREFORE CONFIRM THE ORDER OF CIT (A) IN DELETING THE ADDIT ION OF RS. 9,36,56,472/- U/S 69 OF THE ACT AND GROUND NO. 2 OF THE APPEAL OF THE REVENUE IS DISMISSED. 26. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISS ED. 27. NOW WE COME TO THE APPEAL OF THE ASSESSEE ( ITA NO 2597/DEL/2013) WHERE IN FOLLOWING 1. BECAUSE THE ACTION FOR RETURNING A FINDING FOR MAKING THE ADDITION IN THE HANDS OF INDEPENDENT SEPARATE ENTI TY NAMELY EXPRESS PROPERTIES LIMITED , DKG FINANCE & CHIT FU NDS PRIVATE LIMITED AND D D GOEL & SONS ( HUF) IS BE ING CHALLENGED ON FACTS AND LAW SINCE THE RECORDING A ND ARRIVING THE SATISFACTION QUA THE INITIATION OF THE PROCE EDINGS IS BY THE OA U/S 2 (7) OF THE MATERIAL FACTS CONTAINING M ATERIAL PARTICULARS 2. BECAUSE ONCE THE ADDITION HAS BEEN DELETED THEN T HE RETURNING OF THE PREJUDICIAL FINDINGS FOR CONTINUATION O F THE CASES WHICH ARE NOT IN THE PROCEEDINGS IS AN ACTION C HALLENGED ON FACTS AND LAW. 28. BEFORE US NEITHER THE APPELLANT ASSESSEE NOR THE LD . DR RAISED ANY ARGUMENTS ON THIS GROUND. 39 39 29. WE HAVE CAREFULLY CONSIDERED THE ABOVE GROUNDS OF APPEAL. WE FAILED TO UNDERSTAND THAT CIT (A) HAS MADE CERTAI N OBSERVATION IN CASE OF SOME THIRD PARTIES AND HOW THE ASSESSEE IS AGGRIEVED WITH THEM. IN CASE IF THE THIRD PARTY IS AGGRIEVED BY TH E ORDER THAN THEY ARE ENTITLED TO SAFEGUARD THEIR RIGHTS AS PROVIDED IN THE INCOME TAX ACT. WE ARE OF THE VIEW THAT ASSESSEE IS NOT AGGRIE VED BY THE FINDINGS OF CIT (A) RELATED TO SOME THIRD PARTIES WHICH ARE NOT IN APPEAL BEFORE US. HENCE BOTH THESE GROUNDS OF APPEAL ARE D ISMISSED. ASSESSMENT YEAR 2005-06 [ (ITA NO.1598/DEL/2013 BY ASSESSEE )] 30. THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAI NST THE ORDER OF THE CIT (A)-XIII, NEW DELHI DATED 20.12.2012 RAISIN G A SOLITARY GROUND THAT CIT (A) HAS SUSTAINED THE ADDITION OF R S. 5 LAKHS AS UNDISCLOSED INCOME. 31. THE BRIEF FACTS OF THE CASE ARE THAT FOR AY 2005-06 , ASSESSEE FILED ITS RETURN OF INCOME ON 20.07.2005 DECLARING INCOME OF RS.25,53,772/-. FURTHER, THERE WAS A SURVEY AT THE PREMISES OF ONE SHRI S.K. GUPTA ON 20.11.2007. BASE ON THAT, THERE WAS A CONSEQUENT S URVEY AT THE PREMISES OF THE ASSESSEE ON 27.02.2008. BASED ON T HESE FACTS, AN ADDITION OF RS.1,47,80,000/- WAS MADE IN THE HANDS OF THE ASSESSEE. THE AO CONTESTED THIS ADDITION BEFORE CIT (A) WHO I N TURN DELETED THE ADDITION OF RS.1,36,24,500/- WHEREAS AN ADDITIO N OF RS.5 LAKHS WAS CONFIRMED. ACCORDING TO THE CIT (A), ONLY RS.5 LAKHS WAS 40 40 RECEIVED BY DEEN DAYAL GOEL FROM S.K. GUPTA VIDE CH EQUE NO.232031 AND, THEREFORE, THIS ADDITION WAS SUSTAIN ED. REGARDING BALANCE OF THE ADDITION, CIT (A) HAS HELD THAT THIS MONEY HAS BEEN RECEIVED BY THE ASSESSEE FROM VARIOUS COMPANIES, SU CH AS, DKG FINANCE AND FAMILY OF THE ASSESSEE. 32. WE HAVE ALREADY DECIDED IDENTICAL ISSUE IN THE CASE OF THE ASSESSEE IN REVENUES APPEAL FOR AY 2008-09 WHEREIN WE HAVE DEL ETED THE ADDITION BASED ON THE SURVEY STATEMENT OF S.K. GUPT A AND CONSEQUENT SURVEY ON THE ASSESSEE. ALL THE ISSUES ARISING OUT OF THAT APPEAL ARE DISCUSSED IN THAT ORDER AND PARTIES TO THIS APPEAL HAS ALSO CONFIRMED THAT THE FACTS OF THE CASE ARE IDENTICAL, THEREFORE , FOLLOWING THE ORDER IN THE CASE OF ASSESSEE FOR AY 2008-09, WE DELETE T HE ADDITION OF RS. 5 LAKHS IN THE HANDS OF THE ASSESSEE. ASSESSMENT YEAR 2005-06 [ITA NO.1363/DEL/2013 BY REVENUE] 33. FOR THE SAME YEAR, REVENUE HAS ALSO CONTESTED THE D ELETION OF RS. 1,47,80,000/- U/S 69 OF THE ACT IN ITA NO.1563/DEL/ 2013. 34. FACTS OF THIS ADDITION ARE ALSO THE SAME AS HAS BEE N DEALT WITH BY US IN DECIDING THE APPEAL OF THE REVENUE IN CASE OF A SSESSEE FOR AY 2008-09. IN THAT APPEAL, WE HAVE DELETED THE ADDIT ION GIVING REASONS FOR SUCH DELETION. THEREFORE, FOLLOWING THE SAME, WE ALSO CONFIRM THE ACTION OF THE CIT (A) IN DELETING THE ADDITION OF RS. 1,47,80,000/- U/S 69 OF THE ACT. 41 41 ASSESSMENT YEAR 2007-08 [(ITA NO.2598/DEL/2013 BY ASSESSEE)] 35. THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST TH E ORDER OF THE CIT (A)-XIII, NEW DELHI DATED 25.02.2011 WHEREIN ADDITI ON OF RS.6,67,10,850/- HAS BEEN CONFIRMED BY THE CIT (A) U/S 69 OF THE ACT. 36. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE FILED ITS RETURN OF INCOME FOR THIS YEAR ON 23.07.2007 SHOWING INCOME OF RS.24,45, 814/- AND ASSESSMENT U/S 143(3) READ WITH SECTION 147 OF THE ACT WAS PASSED ON 30.12.2011. DURING THE COURSE OF ASSESSMENT PROCEE DINGS BASED ON SURVEY OF S.K. GUPTA, AN ADDITION OF RS.6,67,10,850 /- WAS MADE. AGGRIEVED BY THIS, ASSESSEE PREFERRED AN APPEAL BEF ORE THE CIT (A) WHO CONFIRMED THIS ADDITION IN THE HANDS OF THE ASS ESSEE. THEREFORE, THE ASSESSEE IS IN APPEAL BEFORE US. 37. BEFORE US, IT WAS SUBMITTED THAT AN AMOUNT OF RS. 4 ,30,00,000/- HAS BEEN RECEIVED BY DKG FINANCE AND CHIT FUND PVT. LTD . IN WHOSE CASE IN AY 2007-08 ASSESSMENT U/S 143(3) HAS BEEN A CCEPTED AS GENUINE BY THE AO. IT WAS ALSO SUBMITTED THAT ASSE SSMENT U/S 143(3) MADE BY THE AO WAS REOPENED U/S 147 FOR THE REASON OF SURVEY AND ALIENATION OF ACCOMMODATION ENTRIES TAKEN BY THE AS SESSEE AND ITS GROUP CONCERNS. HOWEVER, U/S 147 READ WITH SECTION 143(3), ASSESSMENT WAS MADE AND THE LOAN OF RS.4.30 CRORES FROM S.K. GUPTA AND OTHERS WAS FOUND TO BE GENUINE. HE FURTHER SUB MITTED THAT THE AMOUNT OF RS.2.40 CRORES HAS BEEN RECEIVED BY THE A SSESSEE FORM SINO CREDIT & LEASING LTD. WHICH IS BASED ON THE ST ATEMENT OF S.K. 42 42 GUPTA FOR WHOSE CROSS EXAMINATION WAS ASKED FOR BUT WAS NOT GIVEN. HE HAS RELIED ON PLETHORA OF CASE LAWS CONTESTING T HE ADDITION. IT WAS FURTHER SUBMITTED THAT THE ISSUE IS IDENTICAL TO TH E ISSUE ALREADY SUBMITTED IN ASSESSEES CASE FOR AY 2008-09 WHEREIN CIT (A) ON IDENTICAL SUBMISSION AS ALLOWED THE APPEAL OF THE A SSESSEE AND SMALL AMOUNT OF ADDITIONS HAVE BEEN RETAINED. 38. LD. DR RELIED ON THE ORDERS OF THE CIT (A) AND AO. 39. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS. WE HAVE PERUSED THAT THE IDENTICAL ADDITION HAS BEEN DEALT WITH BY US IN THE CROSS APPEALS OF THE ASSESSEE AND REVENUE FOR AY 20 08-09. FOR DETAILS REASONS CONTAINED THEREIN, WE HAVE DELETED THE ADDITIONS MADE U/S 69 OF THE ACT IN THE CASE OF THE ASSESSEE. THE REFORE, FOLLOWING THE SAME REASONS, WE DELETE THIS ADDITION OF RS. 6,67,1 0,850/-. 40. TO SUM UP, IN THE RESULT, ITA NOS. 1363/DEL/2013, 2 628/DEL/2013 PREFERRED BY REVENUE AND 2597/DEL/2013 PREFERRED BY ASSESSEE ARE DISMISSED AND ITA NOS. 1598/DEL/2013 AND 2598/DEL/2 013 PREFERRED BY ASSESSEE ARE ALLOWED. 41. ORDER PRONOUNCED IN THE OPEN COURT ON 24.02.2016. SD/- SD/- (A. T. VARKEY) (P RASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 24/02/2016 TS COPY FORWARDED TO 1. APPLICANT 43 43 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI