ITO WD 17(1)(3), MUMBAI V. NAZMIN JAMAL, MUMBAI

ITA 2828/MUM/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1754 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 06-02-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 11-04-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: RASHMIKANT C MOD I
• Keywords: Onus to prove

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI BEFORE SHRI DINESH KUMAR AGARWAL, J. M. AND SHRI SANJAY ARORA, A. M. ITA NO.: 2828/MUM/2011 ASSESSMENT YEAR: 2005-06 INCOME TAX OFFICER 17(1)(3), 1 ST FLOOR, R. NO. 114, PIRAMAL CHAMBERS, LALBAUG, MUMBAI-400 012 VS. THE LEGAL HEIRS OF MR. NAZMIN JAMAL 44, AMYANABAD AGA HALL, NESBIT ROAD, MAZGAON, MUMBAI 400 010 [ PAN: AHLPJ 8280 H ] (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MOHIT JAIN RESPONDENT BY : SHRI RASHMIKANT C. MODI DATE OF HEARING : 06.02.2013 DATE OF PRONOUNCEMENT : 22.02.2013 ORDER PER SANJAY ARORA, A.M. : THIS IS AN APPEAL BY THE REVENUE AGITATING THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)29, MUMBAI (CIT(A) FOR SHORT ) DATED 17.01.2011, ALLOWING THE ASSESSEES APPEAL CONTESTING ITS ASSESSMENT FOR THE ASSESSMENT YEAR (A.Y.) 2005-06 U/S.143(3) R.W.S 147 OF THE INCOME TAX ACT, 1961 ( THE ACT HEREINAFTER) VIDE ORDER DATED 31.12.2007. 2. THE APPEAL INVOLVES AN ADDITION IN THE SUM OF RS .60 LAKHS TOWARD PAYMENT IN RESPECT OF A TENANTED PROPERTY BY THE ASSESSEE, ON ACCOUNT OF THE SAME BEING UNDISCLOSED. THE SAME HAVING BEEN SINCE DELETED BY THE LD. CIT(A ), THE REVENUE IS IN APPEAL. ITA NO.2828/MUM/2011 (A.Y. 2005-06) ITO VS. THE LEGAL HEIRS OF MR. NAZMIN JAMAL 2 2.1 THE MATTER IS, THUS, ESSENTIALLY FACTUAL. IT WO ULD BE RELEVANT TO RECOUNT THE BACKGROUND FACTS AS GATHERED FROM THE MATERIAL ON R ECORD. THERE WAS A SEARCH OPERATION U/S.132 OF THE ACT ON 06.07.2004 ON AJANIS GROUP. SEVERAL INCRIMINATING DOCUMENTS WERE RECOVERED FROM THE RESIDENTIAL PREMISES OF ONE , SHRI NUDRUDDIN B. AJANI AND SHRI DAWOODALI N. ISRANI. ONE SUCH WAS A NOTE DATED 04 .04.2004 (COPY ON RECORD), WRITTEN IN THE HAND OF SHRI NURUDDIN B. AJANI, WHICH READS AS UNDER:- REGARDING OFFICE AT BYCULLA WE HAVE TAKEN 60 LAKHS AGAINST THE OFFICE FROM NAZM UN JAMAL. WE SOLD THE OFFICE TO HIM FOR 56 LAKHS. BAL.4 LAKHS I HAD PROM ISED HIM THAT I WOULD PAY HIM ON 31 ST APRIL AND I WOULD GIVE HIM THE POSSESSION OF THE O FFICE ON 21 ST MARCH (NAVROZ) RANGARA AND SALIM MERCHANT WERE THE ARBITRATORS. HE HAD CALLED UP FOR THE POSSESSION WHICH I WAS SUPPOS ED TO GIVE HIM ON 21 ST MARCH. I TOLD HIM THAT WOULD GIVEN HIM POSSESSION AFTER 15 TH APRIL. AS PER THE SAID NOTE, SHRI NURUDDIN B. AZANI HAD TA KEN RS.60 LAKHS IN CASH FROM THE ASSESSEE FOR THE TRANSFER OF A TENANTED PROPERT Y AT FOURTH FLOOR, WARDEN BLDG., 340, BYCULLA. THE ASSESSEES NAME ALSO APPEARED AT PGS. 8 & 9 OF ANNEXURE-1 (OF THE PAPERS SEIZED, AND A COMPUTER PRINT-OUT TAKEN FROM THE HOU SE OF SHRI NURUDDIN B. AJANI DURING SEARCH), BOTH REFLECTING FINANCIAL TRANSACTIONS. TH E SAID INFORMATION BY THE INVESTIGATION WING OF THE DEPARTMENT WAS PASSED ON TO THE FIELD F ORMATION SUBSEQUENT TO THE FINALIZATION OF THE APPRAISAL REPORT (COPY ON RECOR D), WHICH ALSO MENTIONED THAT THOUGH SUMMONS WERE ISSUED TO THE ASSESSEE, HE COULD NOT A TTEND BECAUSE OF ILLNESS, HAVING SUFFERED A PARALYTIC ATTACK IN THE RECENT PAST, AND FROM WHICH HE HAD NOT YET RECOVERED. NOTICE U/S.148 WAS, ACCORDINGLY, ISSUED AND SERVED ON THE ASSESSEE. THE ASSESSEE RESPONDED BY FILING A RETURN DECLARING NIL INCOME O N 17/5/2007, STATING OF LEADING A RETIRED LIFE DUE TO HEALTH PROBLEMS, AND THAT HE HA D NO INCOME SINCE MANY YEARS. ANY CONNECTION WITH SHRI NURUDDIN B. AJANI WAS DENIED. THE SAME WAS, HOWEVER, FOUND NOT ACCEPTABLE BY THE ASSESSING OFFICER (A.O.) IN VIEW OF THE SUBSTANTIAL EVIDENCE GATHERED AND IN THE POSSESSION OF THE REVENUE. CLEARLY, THE ASSESSEE HAD TRANSACTIONS WITH SHRI NURUDDIN B. AJANI AND HAD PAID HIM RS.60 LAKHS ON O R BEFORE 30.04.2004. THIS WAS PARTICULARLY SO AS THE TRANSACTION OF A CHANGE IN P OSSESSION OF THE PROPERTY UNDER ITA NO.2828/MUM/2011 (A.Y. 2005-06) ITO VS. THE LEGAL HEIRS OF MR. NAZMIN JAMAL 3 REFERENCE HAD IN FACT TAKEN PLACE. THE SAME BEING U NDISCLOSED OR NOT EXPLAINED AS TO ITS SOURCE, THE CORRESPONDING AMOUNT WAS ADDED U/S.69 O F THE ACT. 2.2 IN APPELLATE PROCEEDINGS, THE BACKGROUND F ACTS IN RELATION TO THE SAID TRANSFER WERE EXPLAINED FOR AND ON BEHALF OF THE ASSESSEE. THE AS SESSEE WAS SERIOUSLY ILL FOR THE PAST NEARLY 13 YEARS, AND HAD RECENTLY BREATHED HIS LAST . DURING THE TIME OF THE ALLEGED TRANSACTIONS, HE WAS PARALYSED AND BED RIDDEN. HE H AD NO TAXABLE INCOME FOR THE PAST SEVERAL YEARS, OR EVEN A BANK ACCOUNT. THE PREMISES UNDER REFERENCE WAS AN OFFICE PREMISES, TAKEN ON RENT BY A PRIVATE LIMITED COMPAN Y BY THE NAME, M/S. EMPIRE CONTINENTAL EXPORTS PVT. LTD. THERE WAS A CHANGE IN THE SHARE-HOLDING IN THE SAID COMPANY IN SEPTEMBER, 2003, WITH MRS. NOORJAHAN N. JAMAL AND NAUSHAD N. JAMAL, THE ASSESSEES WIFE AND SON RESPECTIVELY, BECOMING MAJO R SHAREHOLDERS THEREIN. AS SUCH, EVEN IF ANY MONEY MAY BE CONSIDERED TO HAVE BEEN PAID BY WAY OF PREMIUM FOR TAKING THE PROPERTY ON RENT, THE SAME COULD HAVE BEEN ONLY DUR ING THE FINANCIAL YEAR (F.Y.) 2003-04 AND NOT F.Y. 2004-05, WHICH IS THE RELEVANT PREVIOU S YEAR. AS SUCH, EVEN IF THE JAMALS WERE CONSIDERED TO HAVE MADE THE IMPUGNED PAYMENT, THE SAME COULD NOT BE, FIRSTLY, IN THE HANDS OF THE ASSESSEE IN-AS-MUCH AS HE HAD NO I NTEREST IN THE SAID COMPANY AND, SECONDLY, COULD ONLY BE FOR A.Y. 2004-05; THE POSSE SSION ACCORDING TO THE NOTE ITSELF BEING SUPPOSED TO BE GIVEN ON 21.03.2004. THE APPE LLANT HAD NOT BEEN GIVEN THE COPY OF THE STATEMENT BY THE AJANIS FOR CROSS-EXAMINATION, SO THAT IT WAS ALSO NOT CLEAR IF THE AMOUNT HAD BEEN DISCLOSED BY THEM IN THEIR RESPECTI VE RETURNS. THERE WAS ALSO NO CORROBORATIVE EVIDENCE TO SHOW THAT THE ASSESSEE WA S IN POSSESSION OF SUCH A HUGE AMOUNT, WHICH COULD HAVE BEEN PASSED ON TO THE AJAN IS. IN VIEW OF THE SAME, THE SAID ADDITION STOOD DELETED BY THE LD. CIT(A). AGGRIEVED , THE REVENUE IS IN APPEAL. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. 3.1 SECTIONS 69/69A OF THE ACT SEEK TO BRING TO TAX ANY INVESTMENT MADE BY, OR OF MONEY, WHICH THE ASSESSEE IS FOUND TO BE THE OWNER OF, WHICH IS NOT RECORDED IN THE ITA NO.2828/MUM/2011 (A.Y. 2005-06) ITO VS. THE LEGAL HEIRS OF MR. NAZMIN JAMAL 4 BOOKS OF ACCOUNTS, IF ANY, MAINTAINED BY HIM FOR AN Y SOURCE OF INCOME, WHERE THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE OF THE SAID INVESTMENT, MONEY, ETC., AS THE CASE MAY BE, OR THE EXPLANATION OFFERE D BY HIM IS, IN THE OPINION OF THE A.O., NOT SATISFACTORY. THE VALUE OF SUCH INVESTMENT OR MONEY IS DEEMED TO BE THE INCOME OF THE ASSESSEE FOR SUCH FINANCIAL YEAR, I.E., THE YEA R IN WHICH THE INVESTMENT IS FOUND TO HAVE BEEN MADE OR THE ASSESSEE FOUND TO BE THE OWNER OF MONEY, ETC. 3.2 THE FIRST QUESTION, THEREFORE, THAT CONFRONTS U S IS WHETHER THE PRIMARY INGREDIENTS OF THE AFORE-SAID SECTIONS (69 OR 69A) ARE MET FOR THEIR INVOCATION BY THE REVENUE. THE WRITTEN NOTE IS ADMITTEDLY IN THE HAND OF SHRI NURU DDIN B. AJANI. THE SAME IS NOT DISPUTED, AND THIS ASPECT IS EVEN OTHERWISE COVERED BY THE STATUTORY PRESUMPTION OF SECTION 292C (BROUGHT ON THE STATUTE BY FINANCE ACT , 2007 W.R.E.F. 01/10/1975). THE SAID PRESUMPTION WOULD, APART FROM LENDING AUTHENTICITY, ALSO EXTEND TO THE TRUTH OF THE BOOKS OF ACCOUNT, DOCUMENTS, ETC. FOUND DURING SEARCH (OR SURVEY). IN OTHER WORDS, THE ONUS IS SQUARELY ON THE ASSESSEE TO SHOW THAT HE HAS IN FAC T NOT MADE ANY PAYMENT/S IN RELATION TO THE TRANSFER OF THE OFFICE OR, ALTERNATIVELY, TO EX PLAIN THE SOURCE OF THE SAME. IN OUR VIEW, THEREFORE, THE PRIMARY INGREDIENTS FOR THE INVOCATI ON OF SS. 69/69A OF THE ACT ARE PRESENT IN THE INSTANT CASE. THE CONSIDERATION OF THE ASSES SEES EXPLANATION, AND THE CORRECTNESS OR OTHERWISE OF THE DECISION ARRIVED AT BY THE ASSESSI NG AUTHORITY ON DOING SO, IS ANOTHER MATTER THOUGH, WHICH WOULD BE A DECISION ON THE MER ITS OF THE CASE. 3.3 COMING TO THE MERITS, THE ASSESSEES SUBSE QUENT EXPLANATION/S AS FURNISHED BEFORE THE LD. CIT(A), I.E., WITH REGARD TO THE CHANGE IN THE SHARE-HOLDING OF THE COMPANY, THROUGH WHICH THE PROPERTY WAS TAKEN ON TENANCY, AN D OF IT BEING IN FAVOUR OF THE ASSESSEES FAMILY MEMBERS IN SEPTEMBER, 2003, RATHE R SUPPORTS THE INFERENCE OF THE MONEY HAVING CHANGED HANDS, AND FOR THE PURPOSE AS STATED IN THE NOTE. THAT IS, THE SAME (NOTE) IS IN RESPECT OF AN ACTUAL TRANSACTION, I.E. , WHICH WAS ACTUALLY EXECUTED, AND WHICH IN FACT IS THE SUM AND SUBSTANCE AND THE PURPORT OF SECTION 292C. REFERENCE IN THIS CONTEXT IS MADE TO THE DECISION BY THE HONBLE JURI SDICTIONAL HIGH COURT IN THE CASE OF ITA NO.2828/MUM/2011 (A.Y. 2005-06) ITO VS. THE LEGAL HEIRS OF MR. NAZMIN JAMAL 5 SURENDRA M. KHANDHAR V. ASST. CIT [2010] 321 ITR 254 (BOM.). AS SUCH, THE SAID EXPLANATION, RATHER THAN LEADING TO A REBUTTAL OF T HE STATUTORY PRESUMPTION, WHICH THE ASSESSEE COULD NO DOUBT WITH EVIDENCE THE SAME BE ING ONLY A PRESUMPTION, ONLY REINFORCES THE INFERENCE OF THE FACT OF THE MONEY H AVING BEEN PAID IN RELATION TO AN ACTUAL TRANSACTION TOWARD TAKING POSSESSION OF A PROPERTY. AS REGARDS THE DATE OF TAKING OR HANDING OVER THE POSSESSION, THE ASSESSEE SEEKS TO DRAW MILEAGE THERE-FROM IN-AS-MUCH AS THE NOTE STATES OF THE POSSESSION BEING SUPPOSED TO BE GIVEN ON 21 ST MARCH. HOWEVER, THE WORDS SUBSEQUENT TO THE SAID DATE IN THE NOTE W OULD SHOW THAT THE POSSESSION COULD NOT BE GIVEN BY 21 ST MARCH, AND THAT A REVISED DATE FOR GIVING POSSESSI ON WAS SET, I.E., 15 TH APRIL, 2004, WHICH IS APPARENT FROM THE WORDS I TOLD HIM THAT WOULD GIVE HIM POSSESSION AFTER 15 TH APRIL. FURTHER, THE DATE OF POSSESSION BY ITSELF MAY NOT BE VERY MA TERIAL, FOR EVEN IF THE MONEY IS PAID BEFORE OR AFTER THE SAME, IT IS THE DATE ON WHICH THE MONEY STANDS PAID, WHICH WOULD BE RELEVANT. ALSO, IF THE EXACT DATE IS NOT FORTHCOMING FROM THE DOCUMENT/S, IT IS ONLY THE INFERENCE BASED ON THE C IRCUMSTANTIAL EVIDENCE, AND WHICH AGAIN HAS TO BE REASONABLE AND CONSISTENT WITH THE FACTS OF THE CASE, WHICH WOULD HOLD. THIS IS NOT TO SAY THAT THE DATE (OF PAYMENT) IS NO T RELEVANT, WHICH WITHOUT DOUBT IT IS, BUT THE OCCASION FOR THE ASSESSEE TO LEAD EVIDENCE IN I TS RESPECT WOULD ARISE ONLY WHERE THE TRANSACTION (OF PAYMENT) IS ADMITTED AND, FURTHER, COULD ONLY BE ON THE BASIS OF MATERIALS, AS THE DATE OF PAYMENT, EVEN AS APPARENT FROM THE N OTE ITSELF, MAY NOT BE THE SAME AS THAT OF TRANSFER OF POSSESSION ITSELF. AND THAT, IT IS O NLY WHERE IT IS NOT APPARENT FROM THE MATERIALS, THAT AN INFERENCE WITH REGARD THERETO, C ONSISTENT WITH THE FACTS FOUND, AND AS ARISING OUT OF THE MATERIAL ON RECORD, WOULD FOLLOW . THE SAID DATE, AS WE SEE IT, IS 04/4/2004, I.E., THE DATE OF THE NOTE, WHICH ALSO O PERATES AS A RECEIPT FOR RS. 56 LACS, WHILE FOR THE BALANCE IT WOULD BE THE DATE OF DELIV ERY OF POSSESSION FOR WHICH A TENTATIVE DATE OF 15/4/2004 HAD BEEN FIXED BY THE PARTIES. 3.4 THE ASSESSEES NEXT OBJECTION IS ABOUT THE AB SENCE OF ANY DIRECT INTEREST IN THE COMPANY, EMPIRE CONTINENTAL EXPORTS (P.) LTD . TOWARD THIS, WE FIND THAT NO INFORMATION IN THIS REGARD WAS GIVEN TO THE AO, FOR THE SAME TO HAVE CONSIDERED BY HIM, WHILE STANDS ITA NO.2828/MUM/2011 (A.Y. 2005-06) ITO VS. THE LEGAL HEIRS OF MR. NAZMIN JAMAL 6 TAKEN COGNIZANCE OF BY THE LD. CIT(A) WITHOUT EITHE R RECORDING HIS REASONS, OR GIVING AN OPPORTUNITY TO THE AO, WHICH HE IS OBLIGED TO, BEFO RE DOING SO, AND ALSO UPON MEETING HIS (THE AOS) FINDINGS QUA THE SAME. ON THE MERITS OF THE ARGUMENT, HOWEVER, WE MAY CLARIFY THAT IT IS NOT NECESSARY - FOR THE DEEMING OF SECTIONS 69/69A TO APPLY - FOR THE ASSESSEE TO HAVE ANY DIRECT INTEREST IN THE COMPANY , SHARES IN WHICH ARE HELD BY HIS IMMEDIATE FAMILY MEMBERS, BEING WIFE AND SON, FOR T HE APPLICATION OF THE SAID SECTION/S. A COMPANY IS A NON-LIVING ENTITY, WHICH COULD OPERA TE ONLY THROUGH A HUMAN AGENCY. AS SUCH, IF THE MONEY IS PAID FOR AND ON BEHALF OF THE COMPANY, AS STATED, THE ACTUAL SOURCE OF THE MONEY PAID WOULD ONLY BE A LIVING PERSON/S. WHY HE PAID THE MONEY IS A DIFFERENT MATTER . THE ABSENCE OF AN INTEREST (IN THE COMPANY, SAY) COULD BE PLEADED WHERE THE PAYMENT IS DENIED, I.E., IN DEFENCE OF NON-PAYMENT, AND NOT TO SUBSTANTIATE A DIFFERENCE IN THE DATE (OF PAYMENT). IN THE INSTANT CASE, THE FAC T OF PAYMENT IS IMMINENT FROM THE NOTE, WHICH IS TO BE REGARDED AS, AND HAS BEEN FOUND TO B E, TRUE. AS AFORE-STATED, WHY THE ASSESSEE PAID THE MONEY OR MADE THE INVESTMENT, ONC E IT IS SO FOUND, IS FOR HIM TO STATE OR EXPLAIN. IN OTHER WORDS, THE SAID PLEA, I.E., ABSEN CE OF INTEREST IN THE COMPANY, WHICH IS ONLY AN AGENCY THROUGH WHICH THE POSSESSION STANDS TAKEN, BECOMES SECONDARY ONCE THE FACT OF PAYMENT IS ESTABLISHED, WHICH IS WHAT, BEIN G UNEXPLAINED WITH REGARD TO ITS NATURE AND SOURCE, IS BROUGHT TO TAX. PUT DIFFERENTLY, THE TAKING OF THE PROPERTY ON RENT BY THE COMPANY IS ONLY A PART OF THE EXPLANATION, EXPLAINI NG THE NATURE OF THE TRANSACTION, WHICH IS OTHERWISE FAIRLY REFLECTED IN THE NOTE DATED 04. 04.2004, SO THAT THE SAID EXPLANATION IS, AS AFORE-NOTED, CORROBORATIVE. HOWEVER, THAT WOULD ONLY BE WITH REGARD TO THE NATURE OF THE AMOUNT PAID, I.E., TOWARD A PURCHASE CONSIDERAT ION OR FOR TAKING POSSESSION OF PROPERTY, AND NOT WITH REGARD TO ITS SOURCE. 3.5 NEXT, THE ASSESSEE CONTENDS OF BEING A MAN OF N O MEANS, SO THAT HE COULD NOT HAVE POSSIBLY PAID THIS HUGE AMOUNT, AND THAT NEITHER AN Y CORROBORATIVE EVIDENCE WITH REGARD TO ITS POSSESSION HAD BEEN FOUND BY THE REVENUE. TH E ARGUMENT, THOUGH NOT COMPLETELY IRRELEVANT, IS LARGELY MISPLACED OR HAS LIMITED APP LICABILITY, EVEN AS FOUND BY THE HONBLE COURT IN THE CASE OF SURENDRA M. KHANDHAR (SUPRA), WHERE THE SAME WAS ALSO ADVANCED ITA NO.2828/MUM/2011 (A.Y. 2005-06) ITO VS. THE LEGAL HEIRS OF MR. NAZMIN JAMAL 7 WITH REFERENCE TO THE DECISION BY THE APEX COURT IN THE CASE OF CIT V. NOORJAHAN (P.K.) [1999] 237 ITR 570 (SC). THIS IS AS THE DEEMING OF SECTIONS 69/69A IS BASED ON THE PRINCIPLES OF COMMON LAW JURISPRUDENCE AS INCORPORA TED IN SECTION 110 OF THE EVIDENCE ACT, EVEN AS EXPLAINED BY THE HONBLE APEX COURT IN THE CASE OF CHURHARMAL V. CIT [1988] 172 ITR 250 (SC). AS SUCH, A PRESUMPTION OF OWNERSH IP WOULD FOLLOW THE DISCOVERY OF ANY VALUABLE WITH THE ASSESSEE, BEING CASH PAID TO NURUDDIN B. AJANI IN THE INSTANT CASE. IT IS FOR THE ASSESSEE TO EXPLAIN AS TO WHY, IN SPI TE OF HAVING MADE THE PAYMENT, HE SHOULD NOT BE TREATED OR CONSIDERED AS THE OWNER OF THE SA ID SUM AND, THUS, SUBJECT TO TAX IN ITS RESPECT, AND WHICH HAS NOT BEEN IN THE INSTANT CASE . THE ASSESSEES NEXT OBJECTION IS WITH REFER ENCE TO HAVING NOT BEEN SUPPLIED WITH THE COPY OF THE STATEMENT BY THE AJANIS, OR OF HAVING N OT BEEN GIVEN AN OPPORTUNITY FOR CROSS EXAMINING THEM. WE FIND LITTLE MERIT IN THE SAME. T HIS IS AS THE PROVISION OF S. 69/69A STANDS INVOKED NOT ON THE BASIS OF ANY STATEMENT, T O WHICH WE ALSO FIND NO REFERENCE, WHICH THEREFORE THE ASSESSE WOULD WISH TO REBUT OR CONTROVERT, BUT ON THE BASIS OF A NOTE, THE TRUTH OF WHICH, APART FROM AS FLOWING FROM THE STATUTORY PRESCRIPTION OF S. 292C, IS PROVED BY THE FACT OF, AS DIVULGED BY THE ASSESSEE ITSELF, DELIVERY OF POSSESSION OF THE PROPERTY AS MENTIONED IN THE NOTE, WHICH THOUGH IS GIVEN EFFECT TO THROUGH THE MEDIUM OF A COMPANY, TRANSFERRING THE SHAREHOLDING THEREIN IN THE NAME OF THE WIFE AND SON OF THE ASSESSEE. FURTHER ON, WHERE IS THE QUESTION OF EXTE NDING AN OPPORTUNITY FOR CROSS EXAMINATION, WHEN IT HAS NOWHERE BEEN ASKED FOR, WI TH THERE BEING IN FACT NO REPRESENTATION WORTH THE NAME BEFORE THE AO. IT IS , ON THE CONTRARY, FOR THE ASSESSEE TO LEAD EVIDENCE BY BRINGING MATERIAL ON RECORD TO EST ABLISH ITS CASE, WHICH RESTS ON NO MORE THAN A BALD DENIAL. CONCLUSION 4. THE ASSESSEE HAS SOUGHT TO RAISE SOME ASPECTS, WHICH WE FIND TO RATHER REINFORCE THE PRESUMPTION AND THE INFERENCE AS DRAWN BY THE REVEN UE IN VIEW OF THE EVIDENCES FOUND IN SEARCH, THE VALIDITY AND TRUTH OF WHICH FOR THE PURPOSE OF EFFECTING AN ADDITION TO INCOME IS NOT IN DOUBT, HAVING NOT BEEN REBUTTED IN ANY MANNER, AND GIVEN THE MANDATE OF ITA NO.2828/MUM/2011 (A.Y. 2005-06) ITO VS. THE LEGAL HEIRS OF MR. NAZMIN JAMAL 8 LAW AS EXPLAINED BY THE HONBLE HIGH COURT IN THE C ASE OF SURENDRA M. KHANDHAR (SUPRA). THE PLEADINGS AS RAISED BY THE ASSESSE, WHICH FOUND FAVOUR WITH THE LD. CIT(A), WERE ON EXAMINATION FOUND TO BE OF LITTLE MERIT. THUS, WHIL E THE REVENUE HAS A STRONG PRIMA FACIE CASE, THE ASSESSEE HAS NOT BEEN ABLE TO DISCHARGE T HE BURDEN OF PROOF CAST ON IT U/S.69/69A OF THE ACT, THOUGH TO BE FAIR, FOR GOOD REASONS, SO THAT WE CANNOT PRECLUDE THE POSSIBILITY OF THE ASSESSEE HAVING A SATISFACTORY EXPLANATION I N-AS-MUCH AS THE ASSESSEE WAS INDISPOSED; RATHER, IN A CRITICAL STATE. WE THINK T HAT HIS LEGAL HEIRS (WHO HAVE NOW BEEN IMPLEADED AS REPRESENTATIVE ASSESSEES), BEING IN TH E KNOW OF THE TRANSACTION/S, OUGHT TO HAVE COOPERATED AND ASSISTED IN THE ASSESSMENT PROC EEDINGS. NEVERTHELESS, THE ASSESSEES CRITICAL STATE, WHICH MAY HAVE IMPACTED THE WHOLE F AMILY, CANNOT BE OVERLOOKED BY US. UNDER THE CIRCUMSTANCES, IN THE INTEREST OF JUSTICE , WE ONLY CONSIDER IT FIT AND PROPER TO, VACATING THE IMPUGNED ORDER, RESTORE THE MATTER BAC K TO THE FILE OF THE A.O. FOR ALLOWING AN OPPORTUNITY TO THE ASSESSEE TO PROVE HIS CASE BE FORE HIM, AND WHO SHALL FRAME THE ASSESSMENT AFRESH PER A SPEAKING ORDER, CONSIDERING ALL THE OBJECTIONS, IF ANY, RAISED BY THE ASSESSEE TO THE IMPUGNED ADDITION. WE MAY THOUG H CLARIFY THAT THE DISCUSSION MADE IN THIS ORDER IS ONLY TO EMPHASIZE, FIRSTLY, THE LEGAL PRINCIPLES AND, SECONDLY, THE UN- TENABILITY OF THE FINDINGS BY THE LD. CIT(A), I.E., ON THE BASIS OF THE MATERIAL ON RECORD. OUR FINDINGS OF FACT, THOUGH IN ENDORSEMENT OF THAT BY THE AO IN THE FIRST ROUND, ARE NOT TO BE REGARDED AS FINAL, AND SHALL NOT IN ANY MANNE R INFLUENCE THOSE TO BE ARRIVED BY THE AO IN THE SET ASIDE PROCEEDINGS. WE DECIDE ACCORDIN GLY. 5. IN THE RESULT, THE REVENUES APPEAL IS ALLOWED F OR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 22 ND DAY OF FEBRUARY, 2013 SD/- - SD/- ( DINESH KUMAR AGARWAL ) ( SANJAY ARORA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 22 .02.2013 ITA NO.2828/MUM/2011 (A.Y. 2005-06) ITO VS. THE LEGAL HEIRS OF MR. NAZMIN JAMAL 9 COPY FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE C.I.T. 4. CIT (A) 5. THE DR, B - BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ROSHANI