ITO, MAKRANA V. M/s. Venktesh Tower, NAGAUR

ITA 261/JODH/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9642 (ITAT-JODHPUR)
• Duration Of Justice: 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2017
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 28-02-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 22-07-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S K MEENA J
• Keywords: Unexplained cash credit; Unexplained investment; Opportunity of being heard; Corroborative evidences; Valuation report
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH JODHPUR BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER ITA NO.261/JODH/2016 ASSESSMENT YEAR 2011-12 INCOME TAX OFFICER, WARD- 2, MAKRANA. VS M/S. VENKTESH TOWER, BEHIND SABJEE MANDI NEW COLONY, KUCHAMAN CITY, NAGAUR. PAN : ABSFS 3219C (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.K. MEENA, JCIT-DR RESPONDENT BY : SHRI AMIT KOTHARI, C.A. / DATE OF HEARING : 28/02/2017 / DATE OF PRONOUNCEMENT: 03/03/2017 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE AS SAILING THE CORRECTNESS OF THE RELIEF GRANTED BY THE CIT(A)-II JODHPUR VIDE ITS ORDER 07.04.2016 IN 2011-12 ASSESSMENT YEAR ON THE FOLLOW ING GROUNDS OF APPEAL. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A)-2 HAS ERRED IN:- 1. DELETING ADDITION OF RS.23,00,401/- MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT IN CONSTRUCTION U/S.69B BY IGNORING THE FACT THAT D EFECTS POINTED OUT BY THE DVO WERE DULY FORWARDED TO THE ASSESSEE BUT THE ASSESSE E FAILED TO SUBMIT BILLS & VOUCHERS AND OTHER DETAILS. 2. DELETING ADDITION OF RS.23,00,401/- MADE ON ACCOUNT OF UNEXPLAINED UNSECURED LOANS U/S.68 BY IGNORING THE FACT THAT DURING THE C OURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE FAILED TO PROVE GENUINENE SS AND CREDITWORTHINESS OF CASH CREDITORS. 2. LEARNED SR.D.R. IN SUPPORT OF GROUND NO.1 INVITE D ATTENTION TO PARAGRAPH 3 TO 3.1 OF THE ASSESSMENT ORDER STATING THAT THE ASSESSEE WAS ITA NO.261/JODH/2016 A.Y. 2011-12 2 REQUIRED TO PRODUCE THE NECESSARY BILLS AND VOUCHER S IN REGARD TO THE CONSTRUCTION MADE BY THE ASSESSEE. IT WAS HIS SUBMI SSION THAT DESPITE MORE THAN SUFFICIENT OPPORTUNITY THE ASSESSEE COULD NOT PRODUCE THE EVIDENCE. AS A RESULT OF THIS THE AO REJECTING THE BOOKS RESULTS O F THE ASSESSEE U/S.145(3) REFERRED THE ISSUE TO THE DEPARTMENTAL VALUATION OF FICER REQUIRING HIM TO VALUE THE COST OF CONSTRUCTION OF THE BUILDING OF M /S. VENKTESH TOWER, BEHIND SUBJEE MANDI, NEW COLONY, KUCHAMAN CITY. THE DVO CONSIDERING THE REPORT OF THE APPROVED VALUATION OFFICER POINTE D OUT VARIOUS DEFECTS THEREIN AND ARRIVED AT THE FOLLOWING VALUATION IN T HREE YEAR PERIOD:- S.NO. FINANCIAL YEAR ASSESSMENT YEAR COST OF CONSTRUCTION OF THE BUILDING VARIATION ESTIMATED BY THE DVO DECLARED BY THE ASSESSEE 01 02 03 04 05 06 01 2010-11 2011-12 1,08,17,490/- 85,17,089/- 23,00, 401/- 02. 2011-12 2012-13 38,99,585/- 30,70,540/- 8,29,04 5/- 03. 2012-13 2013-14 87,66,625/- 69,02,854/- 18,63,7 71/- TOTAL 2,34,83,700/- 1,84,90,483/- 49,93,217/- 2.1 INVITING ATTENTION TO PARAGRAPH 3.8 OF THE ASSE SSMENT ORDERS IT WAS SUBMITTED THAT CONSIDERING THE REPLY OF THE ASSESSE E EXTRACTED IN PARAGRAPH 3.14 OF THE ASSESSMENT ORDER, THE AO REJECTED THE E XPLANATION AND RELYING UPON THE DVOS REPORT MADE THE ADDITION. IT WAS HIS SUBMISSION THAT WHILE DECIDING THE ISSUE IN FAVOUR OF THE ASSESSEE, THE C IT(A) HAS NOT TAKEN NOTE OF THE FACT THAT THE BOOK RESULTS OF THE ASSESSEE WERE NOT RELIABLE HENCE ADDITION DESERVES TO BE SUSTAINED AS FACTS TAKEN INTO CONSID ERATION BY THE ASSESSING OFFICER HAVE BEEN IGNORED. ITA NO.261/JODH/2016 A.Y. 2011-12 3 3. IN REPLY THE LEARNED AR INVITED ATTENTION TO THE SUBMISSION TAKEN INTO CONSIDERATION BY THE CIT(A) RECORDED IN PARAGRAPH 5 .2 OF HIS ORDER CONSIDERING WHICH THE RELIEF UNDER CHALLENGE HAS BE EN GRANTED IN PARAGRAPH 5.4 AND 5.5 RELYING UPON JUDICIAL PRECEDENTS ON THE ISSUE. REFERRING TO THE RECORD, IT WAS SUBMITTED THAT IT IS AN ADMITTED FAC T THAT THE DVO HAD WORKED OUT THE VALUATION REPORT APPLYING THE CPWD RATES AN D THE CIT(A) CONSIDERING THE JUDICIAL PRECEDENTS HELD THAT THE V ALUATION SHOULD HAVE BEEN MADE ON THE BASIS OF LOCAL PWD SCHEDULE. 3.1. ON READING FROM THE IMPUGNED ORDER IT WAS SUBM ITTED THAT THE CIT(A) ALSO ALLOWED THE CLAIM OF SELF SUPERVISION @ 10% AS OPPOSED TO 7.5% CONSIDERED BY THE DVO. ACCORDINGLY IT WAS SUBMITTED THAT RELIEF GRANTED MAY BE CONFIRMED. 4. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL AVAILABLE ON RECORD. THE RECORD SHOWS THAT THE ASSESSING OFFI CER IN THE COURSE OF THE ASSESSMENT PROCEEDINGS CALLED FOR SUPPORTING DETAIL S IN REGARD TO THE CONSTRUCTION CARRIED OUT BY THE ASSESSEE. IT IS SEE N THAT THE NECESSARY DETAILS WERE NOT PROVIDED BY THE ASSESSEE ACCORDINGLY THE C ONCLUSION DRAWN BY THE ASSESSING OFFICER THAT IN THE ABSENCE OF BOOKS OF A CCOUNT AND BILLS AND VOUCHERS THE COST OF CONSTRUCTION/INVESTMENT INCURR ED IN CONSTRUCTING COMPLEX COULD NOT BE DEDUCED PROPERLY. THE SAID FIN DING OF THE ASSESSING OFFICER WAS UPHELD BY THE CIT(A) AND IS NOT UNDER C HALLENGE, IN THE PRESENT PROCEEDING. FOR READY REFERENCE PARAGRAPH 5.3 OF TH E CIT(A)S IS REPRODUCED HEREUNDER: 5.3 I HAVE CONSIDERED THE FACTS OF THE CASE AND SUBMISS IONS OF THE APPELLANT AND I FIND THAT THE APPELLANT HAS OBJECTED TO THE REFER ENCE MADE U/S 142A TO THE DVO. IN THIS REGARD, IT IS OBSERVED THAT PROVISION OF SE C. 142A PROVIDES THAT FOR THE ITA NO.261/JODH/2016 A.Y. 2011-12 4 PURPOSE OF MAKING AN ASSESSMENT, WHERE AN ESTIMATE OF THE VALUE OF AN INVESTMENT IN TERMS OF SEC. 69B IS REQUIRED TO BE MADE, THE AS SESSING OFFICER MAY REQUIRE THE VALUATION OFFICER TO MAKE AN ESTIMATE OF SUCH INVES TMENT AND REPORT THE SAME TO HIM. IN THE PRESENT CASE, BEFORE REFERRING THE MATT ER TO DVO, THE ASSESSING OFFICER ACCORDED ADEQUATE OPPORTUNITY TO THE ASSESS EE TO SUBSTANTIATE HIS CLAIM OF INVESTMENT IN CONSTRUCTION OF THE COMPLEX. DURING T HE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER REQUIRED THE ASSESSEE TO PROD UCE DETAILS IN SUPPORT OF THE INVESTMENT SHOWN IN THE APPROVED VALUERS REPORT. W HEREAS IN THE INSTANT CASE, DESPITE ASSESSING OFFICER'S REPEATED DIRECTIONS THE ASSESSEE COULD NOT PRODUCE VARIOUS DETAILS CALLED FOR ALONG WITH SUPPORTING PR OPER BILLS AND VOUCHERS. CONSIDERING THE ABOVE ASPECTS, I AM OF THE VIEW THA T PRIMA FACIE THE ASSESSING OFFICER WAS RIGHT IN ASSUMING THE SATISFACTION THAT ON THE BASIS OF BOOKS OF ACCOUNT AND BILLS AND VOUCHERS MAINTAINED BY THE AP PELLANT COST CONSTRUCTION / INVESTMENT INCURRED IN COMPLEX COULD NOT BE DEDUCED PROPERLY AND CORRECT. HENCE, THE APPELLANTS CONTENTION IN THIS REGARD IS REJECTED BEING DEVOID OF ANY MERITS. 4.1. ACCORDINGLY, I FIND THAT THE SUBMISSION OF THE LEARNED SR.D.R. THAT THE CIT(A) COMPLETELY IGNORED THE FINDINGS ON FACTS OF THE ASSESSING OFFICER IS NOT CORRECT. 4.2. I FIND ON GOING THROUGH THE FINDINGS ARRIVED A T BY THE CIT(A) THAT THE RELIEF GRANTED FOR SELF SUPERVISION AND BY APPLYING LOCAL PWD RATES AS OPPOSED TO CPWD RATES ON FACTS CANNOT BE FAULTED WI TH. THE CIT(A) IT SEEN HAS TAKEN NOTE OF THE FACT THAT THE ASSESSEE WAS IN VOLVED IN BUILDING ACTIVITY AS HE WAS IN REAL ESTATE BUSINESS AND HAD PREPARED THE PLAN AND BASIC ARCHITECTURAL DESIGN FOR THE PURPOSE OF SEEKING SAN CTION FROM THE LOCAL AUTHORITIES THROUGH THE ARCHITECT; HAD DIRECTLY PUR CHASED ALL THE RAW MATERIAL FROM THE LOCAL MARBLE DEALER AND EVIDENCE IN SUPPOR T OF THE SAME AND SUPERVISION OF THE CONSTRUCTION WAS FOUND TO HAVE B EEN DEMONSTRATED FROM THE REPORT OF THE REGISTERED VALUATION OFFICER. THU S I FIND CONSIDERING THE FACTS AND THE PRECEDENT AVAILABLE NO INTERFERENCE O N THIS COUNT IS WARRANTED. CONSIDERING THE NEXT REASON FOR GRANTING RELIEF I F IND THE DETAILED FINDING ON FACT AS HAS BEEN ADDRESSED IN PARAGRAPH 5.4 TO 5.6 OF THE IMPUGNED ORDER OF ITA NO.261/JODH/2016 A.Y. 2011-12 5 LOCAL PWD RATES, RELIANCE HAS BEEN PLACED UPON THE DECISIONS OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASES OF CIT VS. H OTEL JOSHI, 242 ITR 479 (RAJ.) DINESH TALWAR REPORTED IN 265 ITR 344 (RAJ) AND THE DECISION OF ITAT JODHPUR BENCH IN THE CASE OF UTTAM CHAND NAHAR VS. ITO REPORTED IN 28 TAX WORLD 435 AND NOTING THAT NO DISTINCTION ON FACTS HAS BEEN BROUGHT TO THE NOTICE OF THE BENCH NOR ANY CONTRARY DECISION H AS BEEN CITED FOR CONSIDERATION I FIND THE CONCLUSION CANNOT BE FAULT ED WITH IN THE ABSENCE OF EITHER ANY DISTINCTION ON FACTS OR CONTRARY DECISIO N OF A HIGHER FORUM. ACCORDINGLY BEING SATISFIED BY THE REASONING AND TH E CONCLUSION ARRIVED AT IN THE IMPUGNED ORDER. GROUND NO.1 OF THE REVENUE IS D ISMISSED. 5. ADDRESSING THE ISSUES IN GROUND NO.2, THE LEARNE D SR.D.R. INVITED ATTENTION TO PARAGRAPH 4 OF THE ASSESSMENT ORDER SO AS TO CANVAS THAT THE ISSUES HAVE BEEN LOOKED INTO IN DETAIL BY THE ASSES SING OFFICER. OPPORTUNITY HAS BEEN PROVIDED TO THE ASSESSEE TO PLACE THE FACT S IN SUPPORT OF HIS CLAIM IN ORDER TO DEMONSTRATE THE GENUINENESS OF HIS CLAIM. THE EVIDENCE RELIED UPON BY THE ASSESSEE IT WAS SUBMITTED WAS INCOMPLETE AND INSUFFICIENT SINCE COMPLETE EVIDENCES WERE NOT FILED. THE EVIDENCE MAD E AVAILABLE IT WAS SUBMITTED EVEN ON A TEST CHECK BASIS WAS FOUND TO B E NOT ACCEPTABLE. THUS NEITHER THE GENUINENESS NOR THE CREDITWORTHINESS OF THE UNSECURED LOAN CREDITORS IT WAS SUBMITTED WAS ESTABLISHED. IT WAS SUBMITTED THAT IN FACT THE ASSESSING OFFICER HAS FOUND A PATTERN OF CASH BEING FIRST DEPOSITED IN THE BANK ACCOUNTS OF THE FEW PARTIES WHOSE DETAILS WERE MADE AVAILABLE IMMEDIATELY AS PER RECORD BEFORE THE ISSUE OF CHEQU E TO THE ASSESSEE. THE FINDING THAT IT WAS ASSESSEES CASH ROUTED THROUGH THE UNSECURED LOANERS BANK ACCOUNT WAS CONSEQUENTLY GIVEN WHICH HAS NOT B EEN ADDRESSED BY THE ITA NO.261/JODH/2016 A.Y. 2011-12 6 CIT(A). NO EFFORT HAS BEEN MADE BY THE ASSESSEE BEF ORE THE CIT(A) TO SHOW THAT THE FINDING WAS INCORRECT AS NO NEW FACTS WERE BROUGHT TO THE NOTICE OF THE CIT(A). THUS THE AMOUNTS WHICH REMAINED UNEXPLA INED AND UNVERIFIED WERE CORRECTLY ADDED TO THE INCOME OF THE ASSESSEE WHICH FINDING ON FACTS HAS BEEN UPSET BY THE CIT(A) ACCEPTING THE SUBMISSI ONS OF THE ASSESSEE WITHOUT ADDRESSING THE SHORT COMINGS PRINTED OUT BY THE ASSESSING OFFICER. HEAVY RELIANCE WAS PLACED ON THE FOLLOWING FINDING OF THE ASSESSING OFFICER. FOR READY REFERENCE PARAGRAPH 4 OF THE ASS ESSMENT ORDER IS REPRODUCED HEREUNDER: 4. AS PER BALANCE SHEET AS ON 31.03.2011, THE ASSE SSEE SHOWN THE UNSECURED LOANERS AMOUNTING TO RS.21,89,778/- IN THE LIABILIT Y SIDE OF BALANCE SHEET FOR THE ASSESSMENT YEAR 2011-12. AS PER NOTE SHEET DATED 19 .02.2014, THE ASSESSEE WAS REQUIRED TO PRODUCE THE UNSECURED LOANERS FOR VERIF ICATION OF THEIR GENUINENESS AND CREDITWORTHINESS BUT THE ASSESSEE COULD NOT PRO DUCE THE SAME ON THE REQUIRED DATE. HOWEVER, THE UNSECURED LOANERS WERE TRIED TO VERIFY FROM THE BANK ACCOUNTS STATEMENTS OF THE ASSESSEE AS WELL AS BANK ACCOUNTS STATEMENTS OF THE UNSECURED LOANERS WHICH WERE NOT MATCHED WITH ABOVE BANK ACCO UNT STATEMENTS. ON TEST CHECK BASIS IN SOME CASES OF UNSECURED LOANERS, THEIR BANK ACCO UNTS STATEMENTS WERE EXAMINED IN WHICH IMMEDIATE PREVIOUS DAY, THE CASH WAS DEPOSITED IN THE THEIR BANK ACCOUNTS, THEN CHEQUE TO THE ASSESSEE WA S ISSUED . IN MAXIMUM CASES, CHEQUE NUMBERS WERE NOT AVAILABLE IN THE BANK ACCOU NT STATEMENTS. NO COMPLETE COPIES OF BANK ACCOUNT STATEMENTS WERE PRODUCED BY THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS IN SOME CASES. THE ASSESSEE COULD NOT GET THE GENUINENESS AND CREDITWORTHINESS OF THE UNSECURED L OANERS VERIFIED FROM THE RECORD. THE ASSESSEE FAILED TO PRODUCE THE CONCERNE D PERSONS FROM WHOM THE ASS BORROWED THE AMOUNT DURING THE YEAR UNDER CONSIDERA TION AS WELL AS THEIR GENUINENESS AND CREDITWORTHINESS. AFTER EXAMINATION OF THE BANK ACCOUNTS STATEMENTS OF THE UNSECURED LOANERS, IT WAS NOTICED THAT THE ASSESSEE ROUTED ITS CASH AMOUNT THROUGH THE UNSECURED LOANERS BANK ACC OUNT. THEREFORE, THE SAME ARE TREATED AS UNEXPLAINED/UNVERIFIED FROM THE RECO RDS AND ALL THE UNSECURED LOANERS OF RS.21,89,778/- TREATING AS BOGUS UNSECUR ED LOANS/UNEXPLAINED CASH CREDITS U/S.68 OF THE INCOME TAX ACT, 1961 ARE ADDE D TO THE TOTAL INCOME OF THE ASSESSEE. HENCE, PENALTY PROCEEDINGS U/S.271(1)(C) OF THE INCOME TAX ACT, 1961 IS ALSO HEREBY INITIATED SEPARATELY. (EMPHASIS PROVIDED) ITA NO.261/JODH/2016 A.Y. 2011-12 7 6. LEARNED AR IN REPLY SUBMITTED THAT THE ASSESSEE BEFORE THE AO HAD SUBMITTED COPIES OF THE BANK ACCOUNTS AND THE PAN / AADHAR IDENTIFICATION OF SOME CASH CREDITORS FOR VERIFICATION IN THE SHORT T IME MADE AVAILABLE TO THE ASSESSEE. IT WAS SUBMITTED RELYING UPON LETTER DATE D 27.02.2014 FILED BEFORE ASSESSING OFFICER WHICH HAS BEEN REFERRED TO BY THE CIT(A) IN PARAGRAPH 6.2. THAT THE ASSESSING OFFICER EVIDENTLY DID NOT G IVE ANY TIME TO EITHER PRODUCE ALL THE CREDITORS OR FILE FURTHER EVIDENCES AS THE ASSESSMENT ORDER WAS PASSED WITHIN A FEW DAYS I.E. ON 4.3.2014. THE ADDITION ACCORDINGLY IT WAS SUBMITTED WAS MADE WITHOUT GIVING ANY FURTHER T IME AND THE ASSESSING OFFICER PROCEEDED TO ENTER IN THE AREA WHERE EVEN T HE SOURCE OF THE SOURCE WAS SOUGHT TO BE EXAMINED BY HIM. ACCORDINGLY IN TH E FACTS IT WAS SUBMITTED THAT THE RELIEF GRANTED IN PARAGRAPH 6.3 TO 6.3.4 B Y THE CIT(A) DESERVES TO BE CONFIRMED. 7. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL AVAILABLE ON RECORD. I FIND THAT THE ASSESSEE IN THE COURSE O F THE ARGUMENTS BEFORE THE CIT(A) HAS STATED THAT COMPLETE DETAILS OF THE UNSE CURED LOANS AND THEIR BANK ACCOUNT AND PAN NUMBER MADE AVAILABLE TO THE A SSESSING OFFICER. FOR READY REFERENCE THE ARGUMENT RECORDED IN PARA 6.2 B Y THE CIT(A) IS REPRODUCED HEREUNDER. IT WAS SUBMITTED THAT THE APPELLANT SUBMITTED COM PLETE DETAILS OF THE UNSECURED LOANS AND THEIR BANK ACCOUNT AND PAN NUMBER. BUT, THE ASSESSING OFFICER DISPUTING THE SOURCE OF SOURCE AND ALLEGING THAT THE PARTIES WERE NOT PRODUCED BEFORE HIM AND ENTIRE BALANCE IN THE ACCOUNT OF THE PARTIES WAS ADDED TO THE INCOME OF THE APPELLANT. 7.1 RELIANCE HAS BEEN PLACED UPON LETTER DATED 27.0 2.2014 STATING THAT COPIES OF BANK ACCOUNT CONFIRMATION WERE PRODUCED A ND CERTAIN CREDITORS WERE ALSO PRODUCED FOR VERIFICATION. ALL THE DEPOSI TS WERE CLAIMED TO HAVE ITA NO.261/JODH/2016 A.Y. 2011-12 8 BEEN RECEIVED THROUGH ACCOUNT PAYEE CHEQUES WHICH W AS STATED TO BE VERIFIABLE FROM THE REGULAR BOOKS OF THE ASSESSEE A ND ALSO FROM THE BANK STATEMENT STATED TO BE SUBMITTED DURING THE ASSESSM ENT PROCEEDINGS. IT IS SEEN THAT THE LEARNED COMMISSIONER SUMMED UP THE FA CTS OF THE CASE AS UNDER:- 6.3 I HAVE GONE THROUGH THE FACTS OF THE CASE AND S UBMISSION OF THE APPELLANT AND I FIND THAT THE ASSESSING OFFICER MADE THE ADDITION OF RS.21,89,778/- U/S.68 FOR THE REASONS THAT THE APPELLANT FAILED TO PROVE THE CREDITWORTHINESS OF THE ALLEGED CASH CREDITORS AND GENUINENESS OF THE TRANSACTION INASMUCH AS THAT HE FAILED TO PHYSICALLY PROCEED THEM FOR EXAMINATION. THE APPEL LANTS ARGUMENT IS THAT HE HAS FILE ALL THE NECESSARY EVIDENCES AND DETAILS BEFOR E THE ASSESSING OFFICER IN ORDER TO PROVE THE CAPACITY OF CREDITORS AND GENUINENESS OF THE TRANSACTION. 7.2. THEREAFTER PROCEEDING TO CONSIDER THE REQUIREM ENTS OF SECTION 68 AS CONSIDERED BY VARIOUS DECISIONS HE HAS COME TO THE CONCLUSION THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN DOUBTING THE VERACITY OF THE CONFIRMATIONS AND THE EXPLANATION OFFERED AS BY FIL ING THE CONFIRMATION OF THE CREDITOR, COPY OF CONFIRMATION OF ACCOUNT ALONG WITH THE COPY OF BALANCE SHEET AFFIDAVIT OF LENDERS ETC HAVING BEEN FILED BE FORE THE ASSESSING OFFICER THUS HELD THAT THE PRIMARY ONUS CAST ON THE ASSESSE E STOOD DISCHARGE. FOR READY REFERENCE THE RELEVANT FINDING OF THE CIT(A) IS EXTRACTED HEREUNDER. 6.3.1 BY FILING THE CONFIRMATION OF THE CREDITOR, COPY OF CONFIRMATION OF ACCOUNT ALONG WITH COPY OF BALANCE SHEET, AFFIDAVITS OF LE NDERS ETC. BEFORE THE ASSESSING OFFICER, THE ASSESSEE HAD DISCHARGED THE PRIMARY O NUS CAST ON IT. 7.3 IT IS MY CONSIDERED VIEW ON APPRECIATING THE PE CULIAR FACTS AND CIRCUMSTANCES OF THE PRESENT CASE THAT THE AFORESAI D CONCLUSION OF THE CIT(A) ON FACTS CANNOT BE UPHELD. I HAVE GONE THROUGH THE PAPER BOOK ON RECORD WHICH INCLUDES THE AFORESAID LETTER DATED 27/02/201 4 (PAGE 19-20) ACCOMPANIED BY SUPPORTING DOCUMENTS OF PAPER BOOK ( PAGE 21-47) AND FIND ITA NO.261/JODH/2016 A.Y. 2011-12 9 THAT THE SHORTCOMINGS POINTED OUT BY THE ASSESSING OFFICER ARE GLARINGLY EVIDENT ON RECORD. AS WOULD BE EVIDENT FROM THE FOL LOWING FINDINGS WHICH IS ADDRESSED HEREINAFTER. I FIND THAT THE LD. CIT(A) H AS COMPLETELY FAILED TO CONSIDER THE EVIDENCE. THE RECORD SHOWS THAT AS PER THE PAPER BOOK INDEX AGAIN PLACED AT PAPER BOOK PAGES 21 IT IS DESCRIBED THAT PAN DETAILS AND BANK STATEMENTS OF 7 OF THESE WERE FILED ALONG WITH BANK ACCOUNT DETAILS AND FOR THE REMAINING FOUR PARTIES ELECTION CARD OR AAD HAR CARD AS IDENTIFICATION AND BANK DETAILS WERE STATED TO HAVE BEEN FILED. CO NFIRMATIONS WERE ALSO STATED TO BE FILED FOR SOME OF THEM. HOWEVER ON GOI NG THROUGH THE PAPER BOOK PAGES 21 TO 47 IT IS SEEN THAT NOT A SINGLE CO NFIRMATION FROM ANY OF THE PARTIES IS FOUND TO HAVE BEEN PLACED ON RECORD BY T HE ASSESSEE. IT IS SEEN THAT WHEREAS PAPER BOOK PAGE NO. 21 IS AGAIN A LIST OF L OAN CREDITORS; PAPER BOOK PAGE NO.22 IS A PHOTOCOPY OF PAN OF SMT. PRABHA LATA JAIN AND PAPER BOOK NO.23 IS STATED TO BE A PHOTOCOPY OF HER BANK ACCOUNT WHEREAS THE NAME OF THE PRIMARY ACCOUNT HOLDER MENTIONED THEREI N IS THAT OF PRAKASH CHAND JAIN. THE LADY IS SUPPOSE TO HAVE ADVANCED RS .1,07,624/- AND THERE IS A CASH DEPOSIT OF RS.1 LAC. NO CONFIRMATION FROM TH E SAID LADY IS FILED AS NOTHING ELSE HAS BEEN WRITTEN ON THESE TWO PAGES I. E. 22 AND 23, THE PAPER BOOK PAGES NOS.24 AND 25 CONTAIN PHOTOCOPY OF PAN C ARD OF SHRI PAWAN KUMAR AGARWAL AND COPY OF HIS BANK ACCOUNT RESPECTIVELY. A PERUS AL OF HIS BANK ACCOUNT STATEMENT SHOWS THAT FROM 25 TH MAY, 2009 TO 26 TH FEBRUARY, 2010 BANK CHARGES HAVE BEEN DEDUCTED FOR NOT MAINTA INING MINIMUM BALANCE AND THEREAFTER CASH DEPOSITS ARE MADE WITHO UT ELABORATING OR DRAWING INFERENCES THE EVIDENCE ADMITTEDLY HAS NOT BEEN SEEN BY THE LD. CIT(A). AS PER THE INDEX HERE ALSO CONFIRMATION IS STATED TO HAVE BEEN FILED BY HIM BUT THERE IS NOTHING ELSE ON THESE TWO PAGES . THE FOLLOWING PAGES 26 ITA NO.261/JODH/2016 A.Y. 2011-12 10 AND 27 ALL PHOTOCOPIES OF ELECTION CARD OF SMT. MAYA AGARWAL AND HER BANK STATEMENT RESPECTIVELY. IT IS SEEN THAT HERE ALSO T HERE WERE CASH DEPOSITS AND NO CONFIRMATION DESPITE A NARRATION GIVEN IN THE IN DEX IT IS SEEN HAS BEEN FILED. THE NEXT TWO PAGES OF THE PAPER BOOK PAGE NO S. 28 AND 29 REFER TO SMT. NEETA AGARWAL IN WHOSE CASE ALSO PAPER BOOK 28 IS THE ELECTION C ARD IDENTITY AND PAPER BOOK 29 IS COPY OF HER BANK DETA ILS. A PERUSAL OF THIS ALSO SHOWS THAT HERE ALSO BANK CHARGES HAVE BEEN DEDUCTE D FOR NOT MAINTAINING MINIMUM BALANCE AND CASH DEPOSITS ARE ALSO MADE. TH E INDEX HEREIN ALSO NARRATES THAT CONFIRMATION IS FILED. RIGHT UPTO PAG E 47 IT IS SEEN THAT NO CONFIRMATION HAS BEEN FILED. THUS THE NARRATION GIV E THAT CONFIRMATION IS FILED IS AN INCORRECT ASSERTION OF FACT. IT IS ALS O SEEN THAT IN THE ENTIRE SUBMISSIONS MADE BEFORE THE CIT(A) OR RECORDED IN T HE ORDER THERE IS NO DISCUSSION WHATSOEVER ON BEHALF OF THE ASSESSEE IDE NTIFYING ANY OF THE EVIDENCE BY STATING THAT FROM WHAT SOURCE THE ADVAN CE IS MADE BY ANY OF THE PARTIES TO THE ASSESSEE. NO CONFIRMATIONS FROM ANY PERSON IS FOUND TO HAVE BEEN FILED ON RECORD. THE ARGUMENT THAT THE ASSESSI NG OFFICER IS EXAMINING SOURCE OF SOURCE IS AN INCORRECT ARGUMENT AS THE AS SESSEE HAS FAILED TO DEMONSTRATE THE SO CALLED PRIMARY SOURCE ITSELF AS NONE OF THE PARTIES HAVE FILED ANY CONFIRMATION EITHER OF ADVANCING LOAN FRO M WHAT SOURCE THEY CLAIM THE LOAN TO HAVE BEEN ADVANCED. THUS IN THE ABSENCE OF ANY EXPLANATION THE CONCLUSION OF THE ASSESSING OFFICER THAT THIS WAS A SSESSEES MONEY ROUTED THROUGH UNSECURED LOAN CREDITORS ACCOUNT CANNOT BE SAID TO BE AN INCORRECT FINDING AND IT CANNOT BE SAID TO HAVE BEEN UPSET BY THE CIT(A) ON FACTS AS WITHOUT COMMENTING UPON THE FINANCIAL CAPACITY OF A SINGLE LOAN CREDITOR AND WITHOUT CARING TO VERIFY AND GO THROUGH THE RECORD, IT APPEARS THAT HE HAS BLINDLY ACCEPTED THE ARGUMENTS ADVANCED. ACCORDINGL Y I FIND THAT IN THE ITA NO.261/JODH/2016 A.Y. 2011-12 11 PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE THE FI NDING OF THE CIT(A) CANNOT BE UPHELD. A DECISION IN THE ABSENCE OF ANY RELEVAN T DISCUSSION ON THE FACTS MERELY BECAUSE IT RELIES UPON JUDICIAL PRECEDENTS C ANNOT BE SAID TO BE A DECISION ON THE FACTS OF A CASE. IN ORDER TO SUPPOR T A CONCLUSION BY JUDICIAL PRECEDENTS THE EXERCISE OF MARSHALLING OF FACTS HAS TO BE FIRST DONE AS WITHOUT SUCH AN EXERCISE THE DECISION CAN BE OPEN TO THE CH ALLENGE OF BEING ARBITRARY AND PERVERSE. IN VIEW OF THE FACT THAT IMPUGNED ORD ER IS BEING SET ASIDE I REFRAIN FROM FURTHER COMMENTING UPON THE EVIDENCE F ILED. THE ASSESSEE IS GIVEN LIBERTY TO PLACE SUPPORTING EVIDENCES IN CASE THE EVIDENCES FILED BEFORE THE ASSESSING OFFICER ORIGINALLY ARE FOUND BY THE L D. CIT(A) TO BE INCOMPLETE AND INSUFFICIENT. THE IMPUGNED ORDER ACC ORDINGLY IS SET ASIDE AND THE ISSUE IS RESTORED BACK TO THE FILE OF THE CIT(A ) WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 10. IN THE RESULT, THE APPEAL OF THE REVENUE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 03.03.2017. SD/- (SMT. DIVA SINGH) JUDICIAL MEMBER DATED: 03/03/2017 PRABHAT KUMAR KESARWANI, SR.P.S. COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT AS SISTANT REGISTRAR