Mahalaxmi Hsg. & Finstock Pvt. Ltd., Ahmedabad V. The Income tax Officer, Ward-4(4), Ahmedabad

ITA 266/AHD/2005

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 6130 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-06-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 25-05-2010
• Assessment Year: misc
• Appeal Filed On: 28-01-2005
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: C K MISHRA
• Assessee Lawyers: ANIL N SHAH
• Keywords: Business expenditure; Opportunity of being heard; Set aside
• Section: 143(3); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH AHMEDABAD (BEFORE S/SHRI BHAVNESH SAINI, JM AND A. N. PAHUJA, AM) ITA NO.266/AHD/2005 A. Y.: 1988-89 MAHALAXMI HOUSING & FINSTOCK PVT. LTD., 1, NAAYAN CHAMBERS, 2 ND FLOOR, NEHRU BRIDGE CORNER, ASHRAM ROAD, AHMEDABAD PAN/GIR NO.31-092-CT-9218 VS THE INCOME TAX OFFICER, WARD 4(4), 1 ST FLOOR, NAVJIVAN TRUST BUILDING, NR. NAVJIVAN POST OFFICE, ASHRAM ROAD, AHMEDABAD (APPELLANT) (RESPONDENT) APPELLANT BY SHRI ANIL N. SHAH, AR RESPONDENT BY SHRI C. K. MISHRA, DR O R D E R PER BHAVNESH SAINI: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A)-VIII, AHMED ABAD DATED 09 TH DECEMBER, 2004 FOR ASSESSMENT YEAR 1988-89. 2. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOT H THE PARTIES, PERUSED THE FINDINGS OF THE AUTHORITIES BELOW AND T HE MATERIALS AVAILABLE ON RECORD. 3. THE LEARNED COUNSEL FOR THE ASSESSEE DID NOT PR ESSED GROUND NOS. 1, 2, 4 AND 5. THESE ARE ACCORDINGLY DISMISSED BEIN G NOT PRESSED. THE LEARNED COUNSEL FOR THE ASSESSEE RESTRICTED HIS ARG UMENTS TO THE ADDITION OF RS.5,95,942/-ON ACCOUNT OF REBATE ON ADVANCE FRO M CUSTOMERS. 4. THE FACTS OF THE CASE ON THE ABOVE ISSUE ARE THA T THE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF HOUSING CONST RUCTION. ORIGINAL RETURN WAS FILED ON 31-08-1988 AT RS.80,490/- AND A SSESSMENT WAS FRAMED U/S 143(3) ON 31-07-1989 AT RS.86,620/-. THE REAFTER, ITA NO.266/AHD/2005 MAHALAXMI HOUSING & FINSTOCK PVT. LTD. VS ITO 2 REASSESSMENT WAS RE-FRAMED U/S 147/148 OF THE IT AC T AND ASSESSED AT RS.12,97,830/- AS PER THE ORDER DATED 14-12-1994. T HEREAFTER, THE ASSESSEE WENT IN APPEAL BEFORE THE LEARNED CIT(A) W HO DISPOSED OFF THE APPEAL AS PER THE ORDER DATED 24-09-1995. THE REVEN UE PREFERRED APPEAL BEFORE THE TRIBUNAL AND AS PER THE ORDER DATED 12-0 2-2002, THE ORDERS OF THE AUTHORITIES BELOW WERE SET ASIDE AND THIS ISSUE WAS RESTORED TO THE FILE OF THE AO FOR PASSING THE ORDER AFRESH. THEREA FTER, THE AO GAVE OPPORTUNITY TO THE ASSESSEE COMPANY ON VARIOUS DATE S WHICH WERE NOT AVAILED TO BY THE ASSESSEE AND EVEN NOBODY APPEARED BEFORE THE AO TO REPRESENT THE CASE. THE AO AFTER EXAMINING THE ISSU E AGAIN MADE ADDITION OF RS.5,95,942/- WHICH WAS AGAIN CHALLENGE D BEFORE THE LEARNED CIT(A). THIS ADDITION WAS RELATING TO CLAIM OF REBA TE ON ADVANCE FROM CUSTOMERS. THE AO NOTED THAT A SUM OF RS.6,40,755/- HAS BEEN CLAIMED AS REBATE TO CUSTOMERS OUT OF WHICH RS.44,813/- WAS ACTUALLY PAID DURING THE ACCOUNTING YEAR. THE AO HAS CONSIDERED T HIS TO BE A CONTINGENT PROVISION AND MADE THE ADDITION BY GIVIN G THE FOLLOWING FINDINGS: AFTER CONSIDERING THE ASSESSEES CONTENTION, THE T HEN A.O. HAS OBSERVED THAT THE ASSESSEES LIABILITY TO GIVE A REBATE TO CUSTOMER WILL ARISE ON THE DATE WHEN THE FLAT IS AL LOTTED TO AN APPLICANT FOR FLAT AND AGREEMENT FOR SALE IS MADE. THE ASSESSEE IS NOT ENTITLED TO MAKE PROVISION ON THIS ACCOUNT BEFORE THE DATE OF SALE, AND ACCORDINGLY THE ADDITI ON ON ACCOUNT OF PROVISION OF REBATE AT RS.5,95,942/- WAS MADE AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. LOOKING TO THE FACT OF THE CASE AND IN SPITE OF REASONABLE OPPORTUNITY GIVEN TO THE ASSESSEE, HE HAS NOT TAKEN CARE TO FILE A SINGLE AD JOURNMENT LETTER IN RESPONSE TO THE LETTER ISSUED TO HIM, IT IS THEREFORE, PRESUMED THAT ASSESSEE HAS NOTHING TO AY IN THE MAT TER AND HAS NO OBJECTION ON THE ADDITION OF RS.5,95,942/-. I, THEREFORE, HELD THAT THE ADDITION ON ACCOUNT OF PROVISION OF R EBATE AMOUNTING TO RS.5,95,942/- IS RIGHTLY MADE BY THE A . O. THE ASSESSEE FAILS TO SUBSTANTIATE HIS CLAIM AT THE STA GE OF ASSSTT. PROCEEDINGS INITIATED U/S 147 AS WELL AS BEFORE THE UNDERSIGNED. IN THE ABSENCE OF ANY MATERIAL EVIDENC E, IN ITA NO.266/AHD/2005 MAHALAXMI HOUSING & FINSTOCK PVT. LTD. VS ITO 3 SUPPORT OF CLAIM MADE BY THE ASSESSEE, I ALSO DISAL LOWED THE SAME AND ADD BACK TO THE TOTAL INCOME OF THE ASSESS EE. 4.1 THE ADDITION WAS CHALLENGED BEFORE THE LEARNED CIT(A) AND IT WAS SUBMITTED THAT THE REBATE REFERRED TO BY THE AO AND IN THE ACCOUNTS IS ACTUALLY INTEREST ALLOWED TO THE DEPOSITORS WHO ARE MAKING DEPOSITS FOR PURCHASE OF UNITS/FLATS. THE ASSESSEE HAS FILED COP IES OF THE ACCOUNT OF 4 PARTIES NAMELY NIRMAL TRAVELS, P. M. PATEL, M. M. P ATEL AND B. M. KABARIA. IT WAS EXPLAINED THAT THE ASSESSEE COMPANY HAS ALSO A SCHEME WHEREBY DEDUCTION OF 2% ON CONSTRUCTION COST OF UNI T IS ALLOWED. COPY OF THE BROACHERS WAS FILED TO HIGHLIGHT THE POSITION. IT WAS ALSO ADMITTED THAT THE ASSESSEE COMPANY WAS ALSO HAVING A SCHEME OF FIXED DEPOSIT WHEREBY INTEREST IS PAID TO THE DEPOSITORS. THE LEA RNED CIT(A) HOWEVER, DISMISSED THE APPEAL OF THE ASSESSEE. HIS FINDINGS ARE REPRODUCED A UNDER: I HAVE PERUSED THE EVIDENCES SUBMITTED AND ALSO TH E SCHEME REFERRED BY THE ASSESSEES REPRESENTATIVE. IN THE F IRST PLACE, IT IS NOTED THAT BEFORE THE AO MORE THAN SUFFICIENT OP PORTUNITIES WERE ALLOWED BUT THE SAME WAS NOT UTILISED AND NO D ETAILS OR EXPLANATION WERE FURNISHED AS DISCUSSED AT PAGE-2 O F THE ASSESSMENT ORDER. SECONDLY, THE MAIN BASIS FOR ADDI TION BY THE AO IS THAT THE LIABILITY IS NOT PROVED AS BUSIN ESS EXPENDITURE FOR THE YEAR. I HAVE EXAMINED THE ABOVE SCHEMES OF THE ASSESSEE CO. AND FIND THAT 2% REBATE IS RELA TED TO THOSE PARTIES TO HAVE OPTED FOR PURCHASE OF UNITS/FLATS. IN THE PRESENT CASE, IT IS ADMITTED BY THE AO THAT NONE OF THE PARTIES TO WHOM SUCH REBATE HAS BEEN SHOWN AS PAYABLE HAVE OPTED FOR PURCHASE OF UNITS/FLATS. THE CLAIM IS BASED ON THE INTEREST LIABILITY PAYABLE TO THE DEPOSITORS AS PER THE FIXE D DEPOSIT SCHEME. IN RESPECT OF NIRMAL TRAVELS IT IS SUBMITTE D THAT THE INITIAL DEPOSIT WAS OF RS.30,000/- AND THE SAID PAR TY HAS RECEIVED RS.52,050/- AS PER CHEQUE NO.23879 ON 5.3. 90 WHICH INCLUDED INTEREST OF RS.22,050/- WHICH IS TER MED AS A REBATE. SIMILARLY, IN RESPECT OF PRAVINBHAI M. PATE L, IT IS SUBMITTED THAT THE INITIAL DEPOSIT OF RS.40,000/- W AS RECEIVED BACK BY CHEQUE NO.464334 DATED 16.3.91 FOR RS.68,41 2/- WHICH INCLUDED INTEREST OF RS.28,412/- TERMED AS RE BATE. IN RESPECT OF VINUBHAI M. PATEL WHO IS SON OF LATE MOH ANBHAI M. PATEL, IT IS STATED THAT HIS FATHER DID NOT OPT FOR ANY PURCHASE ITA NO.266/AHD/2005 MAHALAXMI HOUSING & FINSTOCK PVT. LTD. VS ITO 4 OF UNITS/FLATS AND NO MENTION IS MADE OF THE AMOUNT DEPOSITS OR FINAL AMOUNT RECEIVED. THE DATES OF PAYMENTS ARE NOT INDICATED IN THE COPIES OF ACCOUNTS FILED. I HAVE P ERUSED THE ABOVE FACTS AND FIND THAT THE BUSINESS OF THE ASSES SEE CO. IS THAT OF HOUSING CONSTRUCTION AND NOT THAT OF FINANC ING. SECONDLY, THE AMOUNTS PAID ARE MUCH AFTER 31.3.98 A ND CANNOT BE CONSIDERED FOR IN THE CURRENT FINANCIAL Y EARS IN THIS ACCOUNT ALSO. THE CLAIM OF THE ASSESSEE THAT THE SA ME IS BUSINESS EXPENDITURE FOR A. Y. 98-99 CANNOT THEREFO RE, BE JUSTIFIED EITHER ON MERITS OR ON THE BASIS OF ACCOU NTANCY. THE ACTION OF THE AO IN THIS RESPECT IS, THEREFOR4E, JU STIFIED AND THE GROUND OF APPEAL TAKEN IS DISMISSED. 5. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND REFERRED TO T HE ORDER OF THE TRIBUNAL DATED 12-02-2002 IN ITA NO.4613/AHD/1995 F OR THE SAME ASSESSMENT YEAR 1988-89 UNDER APPEAL. THE LEARNED COUNSEL FOR THE ASSESSEE ALSO REFERRED TO PB-3 TO SHOW THAT INTERES T ON FDRS WAS NOT CONSIDERED BY THE AUTHORITIES BELOW. THE LEARNED CO UNSEL FOR THE ASSESSEE SUBMITTED THAT SINCE THE ASSESSEE PAID INT EREST ON THE FDRS DEPOSITED BY THE CUSTOMERS, THEREFORE, INTEREST SHO ULD HAVE BEEN ALLOWED AS DEDUCTION WHICH WAS REFERRED TO AS REPLY BEFORE THE AUTHORITIES BELOW. 6. ON THE OTHER HAND, THE LEARNED DR RELIED UPON TH E ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEE H AS NOT PRODUCED THE BOOKS OF ACCOUNT BEFORE THE AO AS IS DIRECTED BY TH E TRIBUNAL AND HAS NOT AVAILED TO ANY OPPORTUNITY GRANTED BY THE AO TO THE ASSESSEE. THE LEARNED DR SUBMITTED THAT THE ASSESSEE MADE PROVISI ONS OF REBATE AND HAS FAILED TO PROVE THAT AMOUNTS SPENT WHOLLY AND E XCLUSIVELY FOR THE PURPOSE OF BUSINESS. HE HAS SUBMITTED THAT THE SCH EME OF REBATE COULD HAVE BEEN EXPANDED TO THE PARTIES WHO HAVE OPTED FO R PURCHASE OF UNITS/FLATS. THE PARTIES TO WHOM INTEREST IS PAID H AVE NOT OPTED FOR PURCHASE OF UNITS/FLATS. THE LEARNED DR SUBMITTED T HAT PROVISIONS COULD NOT HAVE BEEN ALLOWED DEDUCTION AS SUCH IN FAVOUR O F THE ASSESSEE. THE LEARNED DR SUBMITTED THAT THE ASSESSEE NEVER PLEADE D THE INTEREST PAID ITA NO.266/AHD/2005 MAHALAXMI HOUSING & FINSTOCK PVT. LTD. VS ITO 5 OR PAYABLE ON THE FDRS BEFORE THE AUTHORITIES BELOW AS WELL AS IN THE FIRST INSTANCE BEFORE THE TRIBUNAL. THEREFORE, IT BEING A SET ASIDE PROCEEDINGS, THE ASSESSEE COULD NOT EXPAND THE SCOPE OF INQUIRY AS IS DIRECTED BY THE TRIBUNAL VIDE ORDER DATED 12-02-2002. THE LEARNED D R, THEREFORE, SUBMITTED THAT THE ASSESSEE FAILED TO MAKE OUT ANY CASE ON GRANT OF INTEREST ON FDRS, THEREFORE, THE APPEAL OF THE ASSE SSEE MAY BE DISMISSED. 7. THE LEARNED COUNSEL FOR THE ASSESSEE IN THE REJO INDER SUBMITTED THAT SOME OTHER COUNSEL APPEARED BEFORE THE TRIBUNA L IN THE FIRST INSTANCE AND AS SUCH HE IS NOT AWARE OF THE FACT AS TO HOW INTEREST ON FDRS WAS NOT ARGUED BEFORE THE TRIBUNAL. HE HAS HOW EVER, SUBMITTED THAT THE FINDING OF THE TRIBUNAL IN ENTIRETY WOULD SHOW THAT THE INTEREST ON FDRS WAS ALSO AGITATED AND REFERRED TO THE FINDI NGS OF THE TRIBUNAL IN PARA 7.4 OF THE ORDER DATED I12-02-2002. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND MAT ERIAL AVAILABLE ON RECORD. THE MATTER IN ISSUE WITH REGARD TO CLAIM OF DEDUCTION OF RS.5,95,942/- IN RESPECT OF PROVISION IN REBATE ON ADVANCE FROM THE CUSTOMERS WAS CONSIDERED BY THE TRIBUNAL IN ITA NO. 4613/AHD/1995 VIDE ORDER DATED 12-02-2002. THE ASSESSEE CONTENDED BEFORE THE TRIBUNAL THAT AS PER SCHEME EVEN TO THE CUSTOMERS T O WHOM FLAT IS NOT ALLOTTED REBATE IS GIVEN BY WAY OF INTEREST. THE TR IBUNAL CONSIDERING THE ISSUE HELD AS FOLLOWS IN PARA 7.4:- 7.4 HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IT APPEARS THAT NONE OF THE AUTHORITIES BELOW HAS GONE INTO THE SCHEME R EGARDING ALLOWANCE OF REBATE TO THE DEPOSITORS/CUSTOMERS. AD MITTEDLY ALL THE DEPOSITORS ARE NOT ALLOTTED FLATS. IT ALSO APPEARS THAT REBATE OF 2% ON COST OF THE FLAT IS ALLOWABLE AS PE R SCHEME ONLY ON ALLOTMENT OF FLATS. SINCE NONE OF THE AUTHO RITIES BELOW HAS EXAMINED THE ENTIRE FACTS REGARDING ALLOTMENT O F FLATS AND ALLOWANCE OF REBATE TO THE DEPOSITORS, WE ARE OF TH E VIEW THAT IT WILL MEET THE ENDS OF JUSTICE, IF THE ORDER OF L D. CIT(A) ON THIS ISSUE IS SET-ASIDE AND RESTORED TO THE FILE OF ASSE SSING OFFICER. ITA NO.266/AHD/2005 MAHALAXMI HOUSING & FINSTOCK PVT. LTD. VS ITO 6 WE ACCORDINGLY RESTORE THIS ISSUE TO THE FILE OF AS SESSING OFFICER AND DIRECT HIM TO EXAMINE HOW THE REBATE IS ALLOWED TO THE DEPOSITORS TO WHOM FLATS ARE ALLOWED AND TO THE DEPOSITORS TO WHOM THE FLATS ARE NOT ALLOTTED. THE ASSESSING O FFICER WILL ALSO EXAMINE THE ACCOUNTING ENTRIES MADE IN THE BOO KS OF ACCOUNTS AND ADJUDICATE THE ADDITION OF RS.5,95,962 /- AFRESH, AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSE SSEE AND IN ACCORDANCE WITH LAW. 9. THE ABOVE FINDINGS OF THE TRIBUNAL CLEARLY SHOW THAT THE ASSESSEE CLAIMED REBATE OF 2% BY CLAIMING THAT EVEN IF FLAT IS NOT ALLOTTED TO THE CUSTOMERS, CUSTOMERS WOULD BE ENTITLED FOR REBATE/I NTEREST. THE TRIBUNAL HOWEVER, NOTED THAT ALL THE CUSTOMERS ARE NOT ALLOT TED FLATS AND THAT REBATE OF 2% ON COST OF FLATS IS ALLOWABLE AS PER T HE SCHEME ONLY ON ALLOTMENT OF FLATS. THIS ISSUE WAS, THEREFORE, REST ORED TO THE FILE OF THE AO FOR REEXAMINATION. THE AO WAS ALSO DIRECTED TO EXAM INE ACCOUNTING ENTRIES MADE IN THE BOOKS OF ACCOUNT. THE AO ACCORD INGLY GAVE OPPORTUNITY TO THE ASSESSEE TO PRODUCE BOOKS OF ACC OUNT AND RELEVANT MATERIAL FOR EXAMINATION AS PER ORDER OF THE TRIBUN AL BUT THE ASSESSEE DID NOT RESPOND TO ANY OF THE NOTICES AND DID NOT P RODUCE BOOKS OF ACCOUNT AND RELEVANT MATERIAL BEFORE THE AO FOR EXA MINATION. THUS, THE ASSESSEE HAS FAILED TO COMPLY WITH THE DIRECTION OF THE TRIBUNAL WHILE RESTORING THE ISSUE TO THE FILE OF THE AO. THE AO O N EXAMINATION OF THE MATERIAL ALREADY ON RECORD NOTED THAT THE ASSESSEE HAS MADE ONLY PROVISION FOR REBATE BECAUSE REBATE COULD BE GIVEN ONLY TO THE CUSTOMERS WHO HAVE BEEN ALLOTTED THE FLATS. THE AO FURTHER OB SERVED THAT ASSESSEES LIABILITY TO GIVE REBATE TO THE CUSTOMERS WILL ARIS E ON THE DATE WHEN THE FLAT IS ALLOTTED TO THE APPLICANT FOR FLAT AND AGRE EMENT FOR SALE IS MADE. THEREFORE, THE ASSESSEE IS NOT ENTITLED TO MAKE PRO VISIONS ON THIS ACCOUNT BEFORE THE DATE OF SALE. THE ADDITION WAS ACCORDING LY MADE ON ACCOUNT OF PROVISION OF REBATE. THE LEARNED CIT(A) ALSO GAVE S PECIFIC FINDING BY EXAMINING THE SCHEME THAT REBATE IS RELATED TO THOS E PARTIES WHO HAVE OPTED FOR PURCHASE OF UNITS/FLATS AND IN THIS CASE NONE OF THE PARTIES TO WHOM SUCH REBATE HAS BEEN SHOWN AS PAYABLE OPTED FO R PURCHASE OF ITA NO.266/AHD/2005 MAHALAXMI HOUSING & FINSTOCK PVT. LTD. VS ITO 7 UNITS/FLATS. IT IS, THEREFORE, CLEAR THAT REBATE CO ULD NOT BE GRANTED TO THE PARTIES WHO HAVE NOT OPTED FOR PURCHASE OF UNITS/FL ATS. EVEN OTHERWISE, REBATE COULD BE ALLOWED ONLY TO THE CUSTOMERS WHO H AVE PURCHASED THE FLATS BECAUSE IT WOULD BE REDUCTION IN THE COST OF THE PRODUCT. THE ASSESSEE CLAIMED BEFORE THE TRIBUNAL IN THE FIRST I NSTANCE THAT REBATE IS GIVEN AS PER SCHEME TO THE CUSTOMERS TO WHOM EVEN T HE FLATS HAVE NOT BEEN ALLOTTED. THE ASSESSEE HAS HOWEVER, NOT PLEADE D SPECIFICALLY BEFORE THE TRIBUNAL ABOUT THE INTEREST GRANTED ON FDRS MAD E BY THE PARTIES. THE ISSUE OF INTEREST PAID ON FDRS WAS NOT RESTORED BY THE TRIBUNAL TO THE FILE OF THE AO. IN THE ABSENCE OF ANY SPECIFIC FINDING ON THE ISSUE OF INTEREST PAID ON FDRS THE ASSESSEES COUNSEL CANNOT EXPAND THE FINDING GIVEN BY THE TRIBUNAL VIDE ORDER DATED 12-02-2002. HOWEVER, IT IS ADMITTED FACT THAT BUSINESS OF THE ASSESSEE COMPANY IS THAT OF HOUSING CONSTRUCTION AND NOT THAT OF THE FINANCING. THEREFO RE, MERELY BECAUSE SOME CUSTOMERS MADE DEPOSITS WITH THE ASSESSEE COMP ANY WOULD NOT BE ENTITLED FOR INTEREST EVEN IF THEY HAVE OPTED FOR P URCHASE OF THE FLATS OR NOT BECAUSE REBATE COULD BE GIVEN OUT OF THE FINAL COST OF THE PRODUCT AND IN THE CASE OF THE ASSESSEE THE PRODUCT IS UNITS/FL ATS CONSTRUCTED BY THE ASSESSEE. WHEN THE PURCHASERS DID NOT OPT FOR PURCH ASE OF THE UNITS/FLATS, THERE WAS NO QUESTION OF GIVING ANY RE BATE TO THE CUSTOMERS. SIMILARLY, THE ASSESSEE NEVER FILED ANY SPECIFIC DE TAILS BEFORE ANY OF THE AUTHORITIES BELOW IF INTEREST PAID ON FDRS WAS FOR THE PURPOSE OF BUSINESS. THE LEARNED COUNSEL FOR THE ASSESSEE RAIS ED THE NEW ISSUE ALL TOGETHER WHICH WAS NEITHER SPECIFICALLY PLEADED EIT HER BEFORE THE AUTHORITIES BELOW OR BEFORE THE TRIBUNAL IN THE EAR LIER INSTANCE. WE ACCORDINGLY DO NOT FIND ANY ERROR IN THE ORDER OF T HE LEARNED CIT(A) IN CONFIRMING THE ADDITION. THE LEARNED CIT(A) GAVE A SPECIFIC FINDING OF FACT AGAINST THE ASSESSEE ON THE BASIS OF THE MATERIAL O N RECORD. THE ASSESSEE HAS FAILED TO REBUT THE FINDING OF THE LEARNED CIT( A) THROUGH ANY MATERIAL ON RECORD. WE ACCORDINGLY DO NOT FIND ANY MERIT IN THE APPEAL OF THE ITA NO.266/AHD/2005 MAHALAXMI HOUSING & FINSTOCK PVT. LTD. VS ITO 8 ASSESSEE ON THIS ISSUE. THIS GROUND OF APPEAL OF TH E ASSESSEE IS ACCORDINGLY DISMISSED. 10. AS A RESULT, THE APPEAL OF THE ASSESSEE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 04-06-2010 SD/- SD/- (A. N. PAHUJA) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 04-06-2010 LAKSHMIKANT/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR, ITAT, AHMEDABAD