ITO, New Delhi V. M/s Times Academy Ltd., New Delhi

ITA 2973/DEL/2011

• Counselvise Citation: 297320114 RSA 2011
• Duration Of Justice: 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2011
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: H
• Assessment Year: 2007-2008
• Appeal Filed On: 06-06-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B R R KUMAR
• Assessee Lawyers: MRS SWEETY KOTHARI
• Keywords: Additional evidence
• Section: 142(1); 144; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: H : NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER & SHRI B.K. HALDAR, ACCOUNTANT MEMBER I.T.A. NO. 2973/DEL/2011 ASSESSMENT YEAR : 2007-08 INCOME TAX OFFICER, WARD 16(3), NEW DELHI VS. M/S TIMES ACADEMY LIMITED, A-39, KAILASH COLONY NEW DELHI. (PAN NO. AACCT 4547 Q) [APPELLANT] [RESPONDEN T] APPELLANT BY : SHRI B .R.R. KUMAR, SR. D.R. RESPONDENT BY : SHRI VINOD BINDAL & MRS. SWEETY KOTHARI, CA O R D E R PER SMT. DIVA SINGH, JM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 30.03.2011 OF CIT(A) XIX, NEW DELHI, PERTAINING TO 2007-08 ASSESSMENT YEAR, WHEREIN, THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW BY DELETING ADDITION OF RS.1,24,45,000/- MADE U/S 68 IN RESPECT OF UNEXPLAINED RECEIPTS OF SHARE APPLICATION MONEY IGN ORING THAT: I) DESPITE AMPLE AND ADEQUATE OPPORTUNITY DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE COULD NOT FURN ISH DETAILS AND EVIDENCE IN SUPPORT OF THE GENUINENESS OF THE S OURCE OF RECEIPT OF THE SHARE APPLICATION MONEY. II) THE MOST IMPORTANT ASPECT OF CREDITWORTHINE SS OF THE SHARE APPLICANTS TO ADVANCE SUCH HUGE AMOUNTS OF THOSE SH ARE APPLICATION MONEY HAS NOT BEEN ADJUDICATED UPON ON MERITS IN THE APPELLATE PROCEEDINGS. ITA NO.2973/DEL./2011 A.Y. 2007-08 2 III) EVEN THE ISSUE OF GENUINENESS OF TRANSACTIO NS HAS NOT BEEN EXAMINED DURING THE APPELLATE PROCEEDINGS AS THERE IS NO COMMENTS ON BANK STATEMENTS OF EITHER THE ASSESSEE OR THE SHARE APPLICANTS. IV) ONLY THE NAME AND ADDRESS OF THE SHARE APPLIC ANTS, THEIR BASIC INCOME TAX PARTICULARS LIKE WARD/CIRCLE, PAN AND COPY OF FORM NO.2 REGARDING SHARE ALLOTMENT HAVE BEEN RELIE D UPON DURING THE APPELLATE PROCEEDINGS ALTHOUGH THESE EVI DENCE ARE NOT SUFFICIENT TO EXAMINE THE CREDITWORTHINESS OF T HE SHARE APPLICANTS AND GENUINENESS OF THE TRANSACTIONS. V) IN THE CASE OF THE FOLLOWING 23 SHARE APPLIC ANTS OUT OF THE TOTAL NUMBER OF 45 SHARE APPLICANTS, THE CLAIMS OF THE ASSESSEE HAVE BEEN ACCEPTED BY THE LD. CIT(A) IN SPITE OF TH E FACT THAT IN THESE 23 CASE THE ASSESSEE WAS NOT ABLE TO FURNISH ONE OR MORE OF THE EVIDENTIARY DOCUMENTS COMPRISING CONFIRMATIO NS, BANK STATEMENTS, ITR ACKNOWLEDGEMENTS OR BALANCE SHEETS : A) SATISH TUKARAM KOLIKAR B) SAJJANRAJ SAYARCHAND KAWAR C) ANIL SAYARCHAND KAWAR D) SHANTILAL KAWAR E) PUKHRAJA BHANSALI F) DINESH PUKHRAJ BHANSALI G) CHANDRA PRAKASH P BHANSALI H) SHARPMIND DEVELOPERS PVT. LTD. I) VIVEK JAIN J) AKSHAY JAIN K) PRAVIN PATEL L) MADANLAL JAIN M) NORATMAL KAWAR N) SUNIL KUMAR KAWAR O) SOHANLAL KAWAR P) GAUTAM CHAND KAWAR Q) HIRALAL CHHOGA BHANSALI R) KIRAN KUMAR LAL BHANSALI S) SHRI ANIL SANGHAVI T) KOMAL SHARMA U) RAKESH KOYA ITA NO.2973/DEL./2011 A.Y. 2007-08 3 V) ANIL GAMI W) LAXMAN GAMI VI) THE CONDITIONS LAID DOWN UNDER RULE 46A FOR A DMISSION OF ADDITIONAL EVIDENCE ARE NOT SATISFIED IN THE CASE. 2. THE APPELLANT CRAVES LEAVE FOR RESERVING THE RIGHT TO AMEND, MODIFY, ALTER ADD OR FOREGO ANY GROUND(S) OF APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF APPEAL. 2. THE RELEVANT FACTS OF THE CASE ARE THAT IN VIE W OF REPEATED NON- COMPLIANCE OF THE ASSESSEE IN RESPECT TO NOTICES IS SUED UNDER SECTION 143(2) & 142(1) OF THE INCOME TAX ACT, 1961 ALONG WITH QUE STIONNAIRE, THE ASSESSING OFFICER GOT SERVED UPON THE ASSESSEE PERS ONALLY AT A-39, KAILASH COLONY, NEW DELHI, THE LAST KNOWN ADDRESS OF THE AS SESSEE, AND ALSO THROUGH REGISTERED POST A FINAL PROPOSED ADDITION LETTER AL ONG WITH STATUTORY NOTICES UNDER SECTION 142(1) AND 143(2). IN RESPONSE TO TH IS, THE ASSESSEE FILED LETTER DATED 13.12.2009 ALONG WITH FEW DETAILS. THE ASSES SING OFFICER FURTHER REQUIRED THE ASSESSEE TO FURNISH REMAINING DETAILS ALONG WITH DOCUMENTARY EVIDENCES OF SHARE APPLICATION MONEY/SHARE CAPITAL RECEIVED DURING THE YEAR. HE ALSO REQUIRED THE ASSESSEE TO FILE CONFIRMATION, COPY OF BANK ACCOUNT AND INCOME TAX RETURN FILED IN RESPECT OF PERSONS/PARTI ES FROM WHOM THE ASSESSEE COMPANY HAS RECEIVED SHARE APPLICATION MON EY/SHARE CAPITAL DURING THE YEAR. AFTER INFORMING THE LD. A.R. THAT BEING A TIME BARRING MATTER AND IN CASE OF NON-COMPLIANCE THE CASE WOULD BE DECIDED EX-PARTE UNDER SECTION 144 OF THE ACT. ADJOURNMENT WAS GRANTED. IN VIEW OF NON-REPRESENTATION ON 18.12.2009 EX-PARTE ORDER UNDER SECTION 144 OF THE ACT WAS PASSED WHEREBY ADDITION OF RS.1,32,05,000/- UNDER SECTION 68 WAS M ADE. RELIANCE WAS PLACED ON THE FOLLOWING JUDGEMENTS FOR THE CONCLUSI ON THAT ONUS PLACED UPON THE ASSESSEE IN REGARD TO IDENTITY, GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS STOOD NOT DISCHARGED NAMELY :- ITA NO.2973/DEL./2011 A.Y. 2007-08 4 I) ROSHAN DI HATTI VS. CIT, 107 IT R 938 (SC) II) KALE KHAN MOHAMMED HANIF VS. CIT, 50 ITR 14 (SC ) III) ITO VS. DIZA HOLDINGS (P) LTD, 120 TAXMAN 539 (KERALA) 3. AGGRIEVED BY THIS, THE ASSESSEE WENT IN APPEAL B EFORE THE CIT(A). 4. BEFORE THE CIT(A) THE ASSESSEE MOVED A PETITION UNDER SECTION 46A OF THE ACT FOR ADMISSION OF FRESH EVIDENCE. THE GROU NDS ON THE BASIS OF WHICH FRESH EVIDENCE WAS SOUGHT TO BE ADMITTED CAN BE SUM MARISED AS : A) THE INITIAL NOTICES SENT BY THE ASSESSING OFFICE R WERE NEVER RECEIVED BY THE ASSESSEE AND ONLY NOTICE DATED 8 TH DECEMBER, 2009 WAS RECEIVED WHICH WAS SENT AT A-39, KAILASH C OLONY, NEW DELHI THE LAST KNOWN ADDRESS AS PER THE A.O. B) IN RESPONSE TO THE ONLY NOTICE RECEIVED WHEREIN INFORMATION WAS GIVEN AND THE CASE WAS ADJOURNED TO 18.12.2009. C) ON THE SAID DATE ASSESSEES REPRESENTATIVE ATTEN DED THE OFFICE OF THE ASSESSING OFFICER WHO WAS NOT THERE. HIS STAFF ADVISED THE ASSESSING OFFICER TO COME ON 21.12.2009 AS 19 TH & 20 TH DECEMBER, 2009 WERE SATURDAY AND SUNDAY. D) ON 21.12.2009 WHEN THE LD. A.R. APPEARED THE ASS ESSING OFFICER REFUSED TO RECORD HIS PRESENCE ON THE GROUN D THAT HE SHOULD HAVE WAITED ON 18.12.2009. AS SUCH, THE ASS ESSEE COULD NOT FURNISH THE RELEVANT INFORMATION IN SUPPORT OF ITS CLAIM. E) IT WAS ALSO CONTENDED THAT THOUGH THE LATEST ADD RESS OF THE ASSESSEE WAS AVAILABLE WITH THE ASSESSING OFFICER D ESPITE THIS THE ASSESSING OFFICER HAS MENTIONED THE OLD ADDRESS OF THE ASSESSEE. F) IT WAS ALSO URGED THAT THE NOTICE FOR HEARING ON 14.12.2009 WAS RECEIVED ON 08.12.2009. THE ASSESSMENT WAS GETTING TIME BARRED ON 31.12.2009. THE TIME GIVEN WAS STATED TO BE TOO ITA NO.2973/DEL./2011 A.Y. 2007-08 5 SHORT TO COLLECT CONFIRMATION FROM THE SHARE HOLDER S AND PRODUCE OTHER EVIDENCES TO SUPPORT ITS CLAIM. G) IT WAS ALSO URGED THAT EVEN THE PROPER OPPORTUNI TY WAS NOT GIVEN TO THE ASSESSEE TO EXPLAIN ITS CASE. 5. AS SUCH, A CASE WAS MADE OUT THAT SINCE THE ASSE SSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING THE EVIDENCES THE S AME DESERVED TO BE ADMITTED. 6. THE CIT(A) OBSERVED THAT THE ADDITIONAL EVIDENCE S SOUGHT TO BE ADMITTED ARE IN THE SHAPE OF COPIES OF CONFIRMATION LETTERS ITR ACKNOWLEDGEMENTS OF THE SHARE APPLICANTS AND THE BA NK ACCOUNT COPY MAINTAINED BY THE ASSESSEE WHEREIN THE SHARE APPLIC ATION MONEY WAS CREDITED. THE OTHER DOCUMENTS ARE COPIES OF THE VO UCHERS AND RELATED DOCUMENTS FOR VARIOUS ITEMS OF EXPENDITURE CLAIMED AND DISALLOWED BY THE A.O. 7. THE CIT(A) OBTAINED A REMAND REPORT DATED 7/8.12 .2010 FOR THE ASSESSING OFFICER AND SUPPLIED THE SAME TO THE ASSE SSEE WHO FILED HIS REJOINDER DATED 28.03.2011. 8. CONSIDERING THE SAME, FRESH EVIDENCE WAS ADMITTE D BY THE CIT(A) ON THE FOLLOWING REASONING :- 5. THERE IS NO SERIOUS OBJECTION FROM THE ASSESSIN G OFFICER FOR THE ADMISSION OF ADDITIONAL EVIDENCE. IT IS TO BE MENTIONED HERE THAT THE ASSESSMENT WAS COMPLETED U/S 144. TH E AR STATED THAT THERE WAS NO PROPER SERVICE OF NOTICES. THE A R FURTHER STATED THAT THE NOTICE FOR THE FIRST TIME RECEIVED WAS NOTICE DATED 08.12.2009. THE AR SUBMITTED THAT A FEW DETAILS WE RE FURNISHED AND FULL DETAILS COULD NOT BE SUBMITTED FOR WANT OF SUFFICIENT TIME. AFTER CAREFUL CONSIDERATION OF THE FACTS BRO UGHT ON RECORD, THE ADDITIONAL EVIDENCE IS FOUND CRUCIAL AN D NECESSARY TO DECIDE THE ISSUES RAISED IN VARIOUS GROUNDS OF A PPEAL. HENCE, THE SAME ARE ADMITTED. ITA NO.2973/DEL./2011 A.Y. 2007-08 6 9. CONSIDERING THE ADDITION UNDER CHALLENGE, AFTER HEARING THE LD. A.R., THE CIT(A) IN PARA NO.10 CONSIDERS THE STAND OF THE ASSESSING OFFICER CONSIDERED THE FACT THAT THE ASSESSEE HAS FILED THE FOLLOWING DOCUMENTS IN ITS SUPPORT. NAME AND ADDRESS OF THE SHARE APPLICANTS INCOME TAX PARTICULARS OF SHARE APPLICANTS COPY OF FORM NO.2 10. THE CIT(A) FURTHER CONSIDERED THE FACT THAT THE ASSESSEE HAS SHOWN RECEIPT OF SHARE APPLICATION MONEY OF RS.1,32,05,00 0/- FROM 45 PERSONS. CONSIDERING THE FACT THAT THE ADDITION WAS MADE AS PERSONAL DETAILS WERE NOT FURNISHED IN RESPECT OF SHARE APPLICATION MONEY CON TRIBUTED BY THE SHARE APPLICANTS. THE DETAILS BROUGHT ON RECORD BY THE A SSESSEE WERE FOUND TO HAVE BEEN NOT CONTROVERTED BY THE ASSESSING OFFICER . THE CIT(A), AS SUCH, HELD THAT THE BURDEN STOOD DISCHARGED BY THE ASSESS EE IN REGARD TO IDENTITY, CREDIT WORTHINESS AND GENUINENESS OF THE TRANSACTIO N AS LAID DOWN BY THE JUDICIAL AUTHORITIES EXAMINING THE APPLICABILITY OF SECTION 68 OF THE ACT. RELIANCE WAS PLACED UPON:- 1) CIT VS. DIVINE LASING & FINANCE LTD., 207 CTR 38 (DELHI) 2) 76 OBSERVATION OF THE APEX COURT WHILE DISMISSIN G THE SLP FILED BY THE DEPARTMENT IN CIT VS. LOVELY EXPORTS ( P) LTD., 216 CTR 195 (SC) 3) ANU INDUSTRIES VS. ACIT (2009), 19 DTR (DEL)(TRI B) 465 11. ACCORDINGLY, ADDITION WAS SUSTAINED TO THE EXTE NT OF RS.7,60,000/- AND DELETED TO THE EXTENT OF RS.1,24,45,000/- FOR THE F OLLOWING REASONS:- 13. I HAVE NO HESITATION TO CONCLUDE THAT THE ASSE SSEE HAS PROVIDED NECESSARY DETAILS INCLUDING THE WARD/CIRCL E WHERE THE SHARE APPLICANTS/INVESTING COMPANIES WERE ASSESSED TO INCOME TAX AND DISCHARGED THE ONUS CAST ON IT. AS PER FOR M NO.2, SHARES WERE ALLOTTED ON 26.02.2007. IDENTITY OF TH E SHARE ITA NO.2973/DEL./2011 A.Y. 2007-08 7 APPLICANTS WHICH IS THE MAIN CONDITION WITH REGARD TO ISSUE OF SHARE APPLICATION MONEY IS ADEQUATELY PROVED. 14. THE LAW OF EVIDENCE MANDATES THAT IF THE BEST E VIDENCE IS NOT PLACED BEFORE THE COURT, AN ADVERSE INFERENCE C AN BE DRAWN AGAINST THE PERSON WHO OUGHT TO HAVE PRODUCED IT. AS STATED ABOVE THE ASSESSEE HAS PRODUCED POSSIBLE/BEST EVIDE NCE TO SUPPORT ITS CLAIM. 15. HOWEVER IN THE FOLLOWING CASES THERE IS NO PROP ER EVIDENCE TO PROVE THE RECEIPT OF THE SHARE APPLICAT ION MONEY : S.NO. NAME AMOUNT 1. ASHOK CHANDRA JAIN 1,75,000/- 2. SUDHIR NARAHARI KAMATH 10,000/- 3. DEVESH DUTT 25,000/- 4. SEEMA MISHRA 2,50,000/- 5. HARRIS CHAMBALI 25,000/- 6. RAM CHANDER GOSWAMI 2,50,000/- 7. SAVITA M. JAIN 25,000/- TOTAL 7,60,000/- 16. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES AN D AVAILABLE LEGAL POSITION, THE SHARE APPLICATION MON EY/SHARE CAPITAL TO THE EXTENT OF RS.1,24,45,000/- STANDS EX PLAINED. RELIEF: RS.1,24,45,000/- CONFIRMED: RS.7,60,000/- ACCORDINGLY, GROUND NO.3 IS PARTLY ALLOWED. 12. AGAINST THE RELIEF GIVEN, THE REVENUE IS IN APP EAL. 13. THE LD. SR. DEPARTMENTAL REPRESENTATIVE INVITIN G ATTENTION TO THE ASSESSMENT ORDER SUBMITTED THAT 8 NOTICES REMAINED UN-REPLIED AND FINALLY ONE NOTICE WAS GOT SERVED. IN THESE CIRCUMSTANCES, THE ASSESSMENT WAS MADE UNDER SECTION 144 OF THE ACT. IT WAS ALSO HIS SUBM ISSION THAT FRESH EVIDENCE HAS BEEN ACCEPTED BY THE CIT(A) WITHOUT ANY ENQUIRY . IT WAS ALSO HIS ARGUMENT THAT CREDIT WORTHINESS AND GENUINENESS HAS NOT BEEN EXAMINED AS ITA NO.2973/DEL./2011 A.Y. 2007-08 8 THE BASIC INFORMATION IN REGARD TO THE IDENTITY BY WAY OF PAN AND THE COPY OF FORM NO.2 ARE NOT SUFFICIENT EVIDENCES. IT WAS ALSO HIS SUBMISSION THAT IN REGARD TO THE 23 PERSONS MENTIONED OUT OF THE 45 SH ARE APPLICANTS MENTIONED IN SUB-GROUND (VI) OF GROUND ONE OR MORE OF THE EVI DENTIARY DOCUMENTS COMPRISING CONFIRMATIONS, BANK STATEMENTS, INCOME T AX RETURN ACKNOWLEDGEMENT OR BALANCE WERE NOT AVAILABLE. ACC ORDINGLY IT WAS HIS REQUEST THAT THE ISSUE MAY BE RESTORED TO THE ASSES SING OFFICER FOR VERIFICATION ON FACTS. 14. THE LD. AUTHORISED REPRESENTATIVE, ON THE OTHER HAND, RELYING UPON THE ASSESSMENT ORDER SUBMITTED THAT THERE WAS A CHA NGE IN THE ADDRESS OF THE ASSESSEE DESPITE THE FACT THAT THE ASSESSING OFFICE R CONTINUED TO SEND NOTICES AT THE WRONG ADDRESS AND FINALLY GOT ONE NOTICE SER VED AT THE CORRECT ADDRESS. THE SAME IT WAS SUBMITTED CAN BE SEEN FROM THE ASSE SSMENT ORDER ITSELF WHICH WAS RESPONDED TO. DESPITE THIS FACT, IT WAS SUBMITTED, THE ASSESSING OFFICER MAKES THE MENTION OF A WRONG ADDRESS. ON A CCOUNT OF THESE FACTS, IT WAS SUBMITTED PETITION FOR ADMISSION OF FRESH EVIDE NCE WAS MOVED. ATTENTION WAS INVITED TO COPY OF THE SAME PLACED AT PAGE NO.218OF THE PAPER BOOK. THE REMAND REPORT OF THE ASSESSING OFFICER I T WAS SUBMITTED WAS OBTAINED COPY OF WHICH IS PLACED AT PAGE NOS.219 TO 225 OF THE PAPER BOOK. INVITING ATTENTION TO PAGE NO.221 OF THE SAME, IT W AS STATED THAT THE FRESH EVIDENCE WAS NOT CONTROVERTED AS IS EVIDENCED FROM PAGE NO.221 OF THE SAME WHERE THE ASSESSING OFFICER MERELY STATED THAT THE SUBMISSIONS MAY BE DECIDED ON MERITS. IT WAS FURTHER STATED THAT IT I S A CASE OF SHARE CAPITAL AND NOT A CASE OF SHARE APPLICATION. IT WAS ALSO HIS A RGUMENT THAT IT IS AN ADMITTED FACT THAT THIS IS THE FIRST YEAR AS SUCH T HE SUSPICION OF THE DEPARTMENT THAT UNDISCLOSED INCOME OF THE ASSESSEE IS BEING ROUTED BACK HERE IS BASELESS AND UNFOUNDED. ALL NECESSARY DOCUMENTS IN REGARD TO THE ISSUE ITA NO.2973/DEL./2011 A.Y. 2007-08 9 UNDER CONSIDERATION HAVE BEEN MADE AVAILABLE AND TO THE EXTENT RELIEF HAS BEEN GIVEN BY THE CIT(A) THE SAID ORDER SHOULD BE C ONFIRMED. IT WAS HIS SUBMISSION THAT SIMPLY BECAUSE IN CASE OF CERTAIN PARTIES CONFIRMATION COULD NOT BE FILED OR COPY OF BANK STATEMENT ETC. WAS NOT FILED EVEN THEREIN PAN DETAILS AND FORM NO.2 WERE ALL FILED, AS SUCH, THE REQUEST OF THE DEPARTMENT THAT THE ISSUE TO BE RESTORED FOR VERIFICATION IS O F NO RELEVANCE. IT WAS HIS SUBMISSION THAT THE EVIDENCE OR RECORD HAS NOT BEEN REBUTTED. RELIANCE WAS PLACED UPON CIT VS. VALUE CAPITAL SERVICES, 307 ITR 334 (DELHI) FOR THE CONTENTION THAT THE ONUS PLACED UPON THE DEPARTMENT HAS NOT BEEN REBUTTED AND ASSESSEES CASE IT WAS SUBMITTED IS SQUARELY CO VERED BY THE SAID JUDGEMENT. AS SUCH, IT WAS REQUESTED THAT THE IMPU GNED ORDER MAY BE CONFIRMED. 15. THE LD. D.R. IN REPLY CONTENDED THAT THE EVIDEN CES GIVEN BY THE ASSESSEE ARE INCOMPLETE AND NOT SUFFICIENT AND THE CIT(A) HAS ACCEPTED THEM WITHOUT CARING TO SET OUT WHAT ARE THE EVIDENCES WH ICH ARE AVAILABLE. HIS ARGUMENT WAS THAT THIS WAS NOT A CASE OF PUBLIC LIM ITED COMPANY AND IN THE CIRCUMSTANCES THE ASSESSEE SHOULD HAVE NO HESITATIO N IN FILING THE FACTS PERTAINING TO THE FINANCIAL POSITION AND CREDIT WOR THINESS ONLY THEN GENUINENESS CAN BE ADDRESSED. 16. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ON A CAREFUL CONSIDERATION OF THE SAME, WE ARE OF THE VIEW THAT AS REGARDS THE OBJECTIONS POSED BY THE RE VENUE IN REGARD TO THE ADMISSION OF FRESH EVIDENCE, WE ARE NOT INCLINED TO ACCEPT THE SAME. HAVING GONE THROUGH THE ASSESSMENT ORDER, THE RELEVANT DAT ES QUA THE ADDRESS AT WHICH NOTICE WAS SENT AND FINALLY RECEIVED, WE ARE SATISFIED WITH THE REASONING AND FINDING OF THE CIT(A) THAT FRESH EVID ENCE DESERVED TO BE ADMITTED. NOT ONLY WAS IT CRUCIAL FOR DECIDING THE ISSUE, THE OPPORTUNITY TO ITA NO.2973/DEL./2011 A.Y. 2007-08 10 PRODUCE THE SAME BEFORE THE ASSESSING OFFICER WAS N OT AVAILABLE. ACCORDINGLY, SUB-GROUNDS CHALLENGING ADMISSION OF F RESH EVIDENCE ARE REJECTED. 17. REGARDING THE MERITS OF THE ARGUMENTS THAT IN R EGARD TO THE 23 PARTIES OUT OF 45 ALL THE BASIC DOCUMENTS RELIED UPON BY TH E ASSESSEE WERE NOT AVAILABLE, IT IS SEEN THAT IN REGARD TO THE LAST SE VEN PERSONS NONE OF THE DOCUMENTS WERE AVAILABLE BEFORE THE CIT(A). APART FROM THAT IT IS SEEN THAT IN REGARD TO 9 PERSONS OVER AND ABOVE, THE SEVEN CO NSIDERED EARLIER THE CONFIRMATIONS WERE NOT BEFORE THE CIT(A). APART FR OM THIS IN THE COLUMN PERTAINING TO BANK STATEMENT IN REGARD TO THE 9 PER SONS OVER AND ABOVE THE 7 CONSIDERED EARLIER THE BANK STATEMENT WAS NOT BEFOR E THE CIT(A) IN THIS CASE ACKNOWLEDGEMENT WAS ALSO NOT THERE. APART FROM THE SE IN THE CASE OF SAJJANLAL S. KAWAR, SAYAN KAWAR AND SHANTILAL KAWAR NEITHER THE ACKNOWLEDGEMENT NOR THE BALANCE SHEET/STATEMENT OF AFFAIRS WAS AVAILABLE BEFORE THE CIT(A). THESE ARE THE BASIC DOCUMENTS W HICH THE ASSESSEE ITSELF HAS CHOSEN TO RELY UPON BEFORE THE CIT(A) IN ORDER TO ESTABLISH THE GENUINENESS OF THE CLAIM IN THE CONTEXT OF MOST OF THE PARTIES. THE GRIEVANCE OF THE REVENUE ON THE GROUND THAT THESE BASIC DOCUM ENTS WERE MISSING IN THE CASE OF 23 PERSONS CANNOT BE OUTRIGHTLY REJECTED AS THESE ARE THE DOCUMENTS IN THE FACTS OF THE PRESENT CASE, WHICH THE ASSESSE E ITSELF HAS CONSIDERED NECESSARY TO ESTABLISH THE GENUINENESS OF THE TRANS ACTION. IT IS SEEN THAT THE ASSESSEE ITSELF HAS ACCEPTED THE ADDITION OF RS.7,6 0,000/- UNDER SECTION 68 AND HAS NOT CONTESTED THE ISSUE FURTHER AS SUCH THE ADDITION MADE U/S 68 AND CONSIDERED THEREIN IS A STAND ACCEPTED BY THE ASSES SEE ITSELF. ACCORDINGLY IN THE FACE OF THE ACCEPTED STAND THAT SECTION 68 IS A PPLICABLE IT IS CONSIDERED APPROPRIATE TO RESTORE THE ISSUE BACK TO THE FILE O F THE AO WITH THE DIRECTION TO DECIDE THE SAME IN ACCORDANCE WITH LAW BY WAY OF A SPEAKING ORDER. THE ITA NO.2973/DEL./2011 A.Y. 2007-08 11 ASSESSEE SHALL BE PROVIDED AN OPPORTUNITY TO PRODUC E EVIDENCE IN SUPPORT OF ITS CLAIM BY WAY OF CONFIRMATIONS, BANK STATEMENT, ACKNOWLEDGEMENT ETC. TO ADDRESS THE GENUINENESS AND CREDIT WORTHINESS. THE ASSESSING OFFICER SHALL ALSO CONSIDER THE APPLICABILITY OF THE JUDGEMENT OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. VALUE CAPITAL SERVICES , 307 ITR 334 (DELHI) ON WHICH RELIANCE HAS BEEN PLACED BY THE ASSESSEE. 18. ACCORDINGLY FOR THE REASONS GIVEN HEREINABOVE T HE DEPARTMENTAL GROUND IS PARTLY ALLOWED. 19. IN THE RESULT, THE APPEAL OF THE REVENUE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30.09.2011. SD/- SD/- (B.K. HALDAR) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 30 TH SEPTEMBER, 2011 PBN/* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. D.R., ITAT BY ORDER, DY. REGISTRAR, ITAT, DELHI BENCHES