M/s. SAS Servizio Pvt. Ltd., Delhi V. ACIT, New Delhi

ITA 3007/DEL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3456 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2011-2012
• Appeal Filed On: 15-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Keywords: Search and seizure; Document seized; Principle of natural justice; Onus to prove; Documents seized; Reassessment proceedings
• Section: 143(3); 153A; 263; 132

Judgement Text

I.T.A. NOS. 3005, 3006 & 3007(DEL) OF 2017 1 IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCHES : G NEW DELHI ] BEFORE HONBLE PRESIDENT SHRI G. D. AGARWAL A N D SHRI KUL BHARAT, JUDICIAL MEMBER. I. T. APPEAL NOS.3005, 3006 & 3007/DEL/2017 ASSESSMENT YEARS : 2009-10, 2010-11 & 2011-12. M/S. SAS SERVIZIO PVT. LTD., ASS TT. COMMISSIONER C/O. KAPIL GOEL, ADV.; VS. O F INCOME TAX, F26/124, SECTOR : 7, CENTRAL CIRCLE : 8, D E L H I 110 085. N EW DELHI. PAN : AAACR 4452 L (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI KAPIL GOEL, ADV. ; DEPARTMENT BY : SHRI S. S. RANA, CIT [DR]; DATE OF HEARING : 19.02.2018 DATE OF PRONOUNCEMENT : 22.02.2018 O R D E R PER BENCH : THESE THREE APPEALS PERTAINING TO THE ASSESSMENT YE ARS 2009-10, 2010-11 & 2011-12 BY THE ASSESSEE ARE DIRECTED AGAI NST THE DIFFERENT ORDERS OF THE COMMISSIONER OF INCOME-TAX (APPEALS) 24, NEW DELHI. IDENTICAL GROUNDS HAVE BEEN RAISED IN ALL THESE APP EALS. THEREFORE, ALL THE APPEALS WERE TAKEN UP TOGETHER AND ARE BEING DI SPOSED OF BY WAY OF CONSOLIDATED ORDER, FOR THE SAKE OF BREVITY AND CON VENIENCE. I.T.A. NOS. 3005, 3006 & 3007(DEL) OF 2017 2 2. AT THE TIME OF HEARING BOTH THE PARTIES AGREED TO DECIDE THE ISSUE RELATED TO VALIDITY OF THE ASSESSMENT BY THE ASSESS ING OFFICER UNDER SECTION 153A OF THE INCOME TAX ACT, 1961 [HEREINAFT ER REFERRED TO AS THE ACT]. 2.1 FIRST WE TAKE UP I.T. APPEAL NO. 3005 (DEL) OF 2017 AS A LEAD CASE. THE ASSESSEE HAS RAISED THE FOLLOWING GROUND OF APP EALS :- SECTION 153A VS. SECTION 153C 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. C1TA ERRED IN NOT HOLDING THAT DOCUMENTS FOUND FROM SEARCH AT UK PAINTS GROUP PREMISES (16.09.2011 AND 16.01.2013), CAN ONLY BE CONSIDERED U/S 153C AN D CANNOT BE CONSIDERED AND INCLUDED IN ASSESSEES ASSESSMENT U/S 153A, WHICH HAS TO BE CONFINED AND CONSTRICTED TO THE INCRIMINATING MATERIAL UNEARTHED FROM ASSESSEES SE ARCH ONLY AND ACCORDINGLY THE FINDINGS GIVEN AT PARA 4.2.7 AND 4.2.8 ARE CLEARLY UNSUSTAIN ABLE IN EYES OF LAW. LIMITED PRESUMPTION U/S 292C - REVENUES ONUS NOT D ISCHARGED 1.1 THAT ID. CITA MADE EGREGIOUS ERROR IN NOT APPRE CIATING THAT THERE IS LIMITED PRESUMPTION U/S 292C TO DOCUMENTS FOUND FROM SEARCH ETC., WHICH APPLIES ONLY TO THE PERSON FROM WHOSE POSSESSION THE DOCUMENTS ARE FOUND, WHIC H PRESUMPTION CANNOT BE STRETCHED TO ASSESSEE HEREIN, WHICH IS THIRD PARTY AND JURISDICTIONAL REQUIREMENT TO IMPORT THE DOCUMENTS IN THIRD PARTY S CASE (ASSESSEES CASE) IS EXAMINATION OF PARTY IN POSSES SION OF THE DOCUMENTS AND FURTHER CORROBORATION OF THE SAME. IN PRESENT CASE, NO STATEMENT OF PARTY IN POSSESSION OF DOCUMENTS IS BROUGHT ON RECORDS MUCH LESS THE ANY CROSS EXAMINATION OF THE PARTY IN POSSESSION OF THE SUBJECT DOCUMENTS. FURTHER THERE IS NO CORROBORATION TO THE SAID DOCUMENTS WITHOUT WHICH ALSO THE DOCUMENTS FOUND FROM UK PAINTS GROUP CANNOT BE APPLIED AGAINST ASSESSEE. I.T.A. NOS. 3005, 3006 & 3007(DEL) OF 2017 3 PRINCIPLE OF NATURAL JUSTICE (NO MATERIAL CONFRONTE D AS REQUESTED) 2. THAT ID. CITA MADE SERIOUS ERROR IN NOT QUASHING T HE UNDERLINED ASSESSMENT ORDERS PASSED U/S 153A IN BLATANT VIOLATION OF PRINCIPLE OF NATUR AL JUSTICE IN AS MUCH AS EVEN AFTER REPEATED AND INCESSANT REQUEST TO PROVIDE THE COPIES OF THE STATEMENTS OF PERSONS REFERRED IN ASSESSMENT ORDERS ALONG WITH COPIES OF OTHER DOCUME NTS AS MENTIONED IN OUR LETTERS DATED 21.07.2015,25.10.2016, 07.11.2016, SAME ARE NOT CON FRONTED/ SUPPLIED, ERGO FINDING RECORDED IN PARAGRAPH NO. 4.3.1 AND 4.3.2 ARE DISTO RTED AND INCORRECT. ADDITION ON ACCOUNT OF UNACCOUNTED INTEREST PAYMENT , ON BASIS OF PROBABILITIES WITHOUT EVIDENCE 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID. CITA ERRED IN NOT HOLDING THAT ADDITION ON ACCOUNT OF AL LEGED UNACCOUNTED PAYMENT OF INTEREST CANNOT BE MADE ON MERE BASIS OF DOCUMENTS WHICH ARE NOT FOUND FROM THE POWER AND POSSESSION OF THE ASSESSEE, ON MERE BASIS OF ASSUMP TION AND PRESUMPTION WITHOUT APPRECIATING THAT ADDITION ON ACCOUNT OF ALLEGED UN ACCOUNTED PAYMENT OF INTEREST CANNOT BE DONE ON BASIS OF IPS AND HUTS, AS BURDEN TO PROVE ANY UNACCOUNTED PAYMENT LIES ON THE SHOULDERS OF REVENUE, WHICH BURDEN CANNOT BE DISCHARGED ON MERE BASIS OF PROBABILITIES. 3.1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE ID. CITA ERRED IN NOT DELETING THE ADDITION MADE BY THE AO ON ACCOUNT OF ALLEGED UNACCOUNTED PAYMENT OF INTEREST, WITHOUT APPRECIATI NG THAT: A) THAT EVIDENTIARY VALUE OF DOCUMENTS FOUND FROM UK PAINTS GROUP CANNOT BE CONCLUSIVE UNLESS THEY ARE PROPERLY ENQUIRED, EX AMINED AND CORROBORATED INDEPENDENTLY. B) THAT ASSES SEE HAS ALWAYS CONSISTENTLY DENIED ANY PAYMENT OF ALLEGED UNACCOUNTED INTEREST. C) THAT ASSESSEES SEARCH HAS NOT YIELDED ANY IOTA OF MATERIAL TO PIN POINT EARNING OF ANY UNDISCLOSED INCOME SO AS TO ALLEGED PAYMENT OF UNACCOUNTED INTEREST. INVALID EXTRAPOLATION 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE ID. CITA ERRED IN C ONFIRMING EXTRAPOLATION OF (HE ALLEGED UNACCOUNTED PAYMENT OF INTEREST TO THE ENTIRE PERIOD OF LOAN ON BASIS OF PREPONDERANCE OF PROBABILITIES BY WRO NGLY RELYING UPON I.T.A. NOS. 3005, 3006 & 3007(DEL) OF 2017 4 THE DECISION OF HONBLE DELHI HIGH COURT DECIS ION IN CASE OF DAYAWANTI, WHICH IS ABSOLUTELY DISTINGUISHABLE AND IS INAPPLICABLE TO PRESENT FACTS. GROUND NOS. 1 AND 1.1 : 2.2 BRIEFLY STATED THE FACTS GIVING RISE TO THE PRESENT APPEAL ARE THAT A SEARCH AND SEIZURE ACTION UNDER SECTION 132 OF THE ACT WAS CONDUCTED ON THE SAS GROUP CASES ON 16 TH JANUARY, 2013. THE CASE OF THE ASSESSEE WAS ALSO COVERED UNDER SECTION 132 OF THE ACT. SUB SEQUENTLY, THE ASSESSEE FILED INCOME-TAX RETURN IN RESPONSE TO THE NOTICE ISSUED UNDER SECTION 153A OF THE ACT DECLARING TOTAL INCOME OF R S.1,36,17,430/-. THE ASSESSING OFFICER FRAMED ASSESSMENT UNDER SECTION 1 53A READ WITH SECTION 143(3) OF THE ACT VIDE ORDER DATED 30 TH MARCH, 2015. WHILE FRAMING THE ASSESSMENT THE ASSESSING OFFICER ON THE BASIS OF THE MATERIAL GATHERED DURING THE COURSE OF THE SEARCH A T THE PREMISES OF U.K. PAINTS PROCEEDED TO ASSESS INCOME UNDER SECTION 153 A AND AFTER CONSIDERING THE MATERIAL AVAILABLE ON RECORD MADE A DDITION OF RS.6,05,07,684/- ON ACCOUNT OF UNACCOUNTED INTEREST . AGGRIEVED BY THIS THE ASSESSEE CHALLENGED THE ASSESSMENT ORDER ON THE GROUND THAT THE SAME WAS NOT BASED ON AN INCRIMINATING MATERIAL GAT HERED DURING THE SEARCH AND ALSO ON THE MERITS OF THE CASE. THE LEA RNED CIT (APPEALS) ON BOTH THE COUNTS DECIDED THE ISSUE AGAINST THE AS SESSEE. AGGRIEVED BY THIS THE ASSESSEE APPEALED BEFORE THE TRIBUNAL. GROUND NOS. 1 TO 1.1 ARE AGAINST MAKING ASSESSMENT UNDER SECTION 153A IN STEAD OF 153C OF THE ACT. I.T.A. NOS. 3005, 3006 & 3007(DEL) OF 2017 5 3. THE LEARNED COUNSEL FOR THE ASSESSEE VEHEMENTL Y ARGUED THAT THIS ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE VARIOUS JUDGEMENTS OF THE VARIOUS JURISDICTIONAL HIGH COURT S STARTING FROM IN THE CASE OF CIT VS. KABUL CHAWLA (2016) 380 ITR 573; PR . CIT VS. MERA BABA REALITY ASSOCIATES PVT. LTD. IN ITA. NO. 637/2017 & OTHERS (ORDER DATED AUGUST 21, 2017) AND PR. CIT VS. SUBHASH KHATTAR IN ITA. NO. 60/2017 (ORDER DATED JULY 25, 2017). THE LEARNED COUNSEL F OR THE ASSESSEE TOOK US THROUGH THE ASSESSMENT ORDER AND THE ORDER PASSE D BY THE LEARNED CIT (APPEALS) TO BUTTRESS THE ARGUMENT THAT NO SEIZ ED MATERIAL WAS RECOVERED FROM THE PREMISES OF THE ASSESSEE. AT TH E MOST THE MATERIAL GATHERED FROM THE PREMISES OF M/S. U.K. PAINTS COUL D HAVE BEEN USED FRAMING ASSESSMENT UNDER SECTION 153C OF THE ACT. THE LEARNED COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE SECTION 153C OF THE INCOME TAX ACT. HE SUBMITTED THAT THE AUTHORITY BELOW HAS FAILED TO APPRECIATE THE FACT THAT THE ASSESSEE IS AN INDEPENDENT ENTITY . ON THE CONTRARY, THE LEARNED DEPARTMENTAL REPRESENTATIVE OPPOSED THE SUB MISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE AND SUBMITTED THAT THE CASE LAWS, AS RELIED UPON BY THE LEARNED COUNSEL FOR THE ASSESSEE , ARE NOT APPLICABLE ON THE FACTS OF THE PRESENT CASE AS IN THE PRESENT CASE THERE WAS SIMULTANEOUS SEARCH AT THE PREMISES OF THE ASSESSEE . HE SUBMITTED THAT THE ASSESSEE BEING PART OF THE GROUP, IT SHOULD BE CONSTRUED THAT THE MATERIAL WAS GATHERED FROM THE PREMISES OF THE SEAR CHED PERSON. HE FURTHER SUBMITTED THAT THERE ARE CASE LAWS WHERE TH E SEARCH ON THE DIRECTOR IS CONSIDERED TO BE THE SEARCH ON THE COMP ANY HE REPRESENTS OR VICE VERSA AND THE INITIATION OF ASSESSMENT UNDER S ECTION 153A WAS HELD TO BE LEGAL. I.T.A. NOS. 3005, 3006 & 3007(DEL) OF 2017 6 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND THE MA TERIAL ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELO W. THE LEARNED CIT (APPEALS) HAS DECIDED THIS ISSUE IN PARAS 4.1.7 TO 4.1.12 OF THE ORDER AS FOLLOWS :- 4.1.7 I HAVE CONSIDERED THE CONTENTS OF THE ASSE SSMENT ORDER AND THE SUBMISSIONS OF THE APPELLANT. AT THE OUTSET, IT IS NECESSARY TO EXAMINE THE DIARY NOTINGS RELIED UPON HEAVILY BY THE A.O. THESE ENTRIES ARE CONTAINE D A SEIZED HANDWRITTEN DIARY MAINTAINED BY SH. NAVEEN CHOUDHARY WHICH CONTAINS R EFERENCE TO LOAN TRANSACTIONS AND THE COMPUTED INTEREST THERE ON. IT CAN BE OBSER VED FROM THE HANDWRITTEN NOTINGS OF SH. NAVEEN CHOUDHARY THAT THESE NOTINGS, RELATIN G INTER ALIA TO LOANS GIVEN BY THE U.K. PAINTS GROUP/ THE CONSORTIUM TO M/S SAS SERVIZ IO PVT. LTD. THESE NOTINGS ALSO CONTAINS INTEREST COMPUTATION ON THE LOANS AT VARIO US POINT OF TIME. ONE COMMON FEATURE NOTED IN THESE DIARIES IS THE INTEREST COMP UTED AS THE CHEQUE (OR, C) AND MATERIAL (OR, M) COMPONENTS. THE C COMPONENT IS OFTEN SEEN TO ALSO DEPICT THE TDS COMPONENT ON THE INTEREST RECEIVABLE, WHEREAS T HE M COMPONENT DOES NOT CONTAIN IN REFERENCE TO TDS. THE A.O. HAS TAKEN PAI NS TO PROVE THAT THE C COMPONENT (AND ALSO THE CORRESPONDING TDS COMPONENT ) APPEARING THE EXCEL SHEETS AND HANDWRITTEN NOTINGS OF SH. NAVEEN CHOUDHARY MAT CHES THE ENTRIES IN THE BOOKS OF THE ACCOUNTS OF THE LENDERS. THESE BOOKS OF ACCO UNT OF SUCH COMPANIES ALSO SHOWS LOANS EXTENDED TO VARIOUS PARTIES (INCLUDING THE APPELLANT) IN THEIR BOOKS OF ACCOUNTS. M/S SPAN HOLDINGS PVT. LTD., M/S SARLA FA BRIC PVT. LTD. AND M/S WANG INVESTMENTS AND FINANCE PVT. LTD. HAVE ENTERED INTO A COMBINED LOAN AGREEMENT WITH M/S SAS SERVIZIO PVT. LTD. FOR A TOTAL SUM OF RS. 30 CRORES OF LOAN (RS. 10 CRORES EACH). THE DIARY NOTINGS AND OTHER DOCUMENTS ALSO C LEARLY INDICATE THAT VARIOUS AMOUNTS OF INTEREST UNDER THE CATEGORY M HAVE ALS O NOT ONLY BEEN COMPUTED AS I.T.A. NOS. 3005, 3006 & 3007(DEL) OF 2017 7 ACCRUED BUT ALSO ACTUALLY RECEIVED PERIODICALLY (E. G. IN A-12, PAGE 117 TO 121 AND IN EXCEL SHEET ATTACHED WITH EMAILS OF SH. RAJNEESH GU PTA TO NAVEEN CHOUDHARY) FROM M/S SAS SERVIZIO PVT. LTD.. THE A.O. HAS REFERRED T O THE STATEMENTS RECORDED OF SH. NAVEEN CHOUDHARY AND ALSO REPRODUCED THE RELEVANT P ORTION OF THE STATEMENT. SH. NAVEEN CHOUDHARY HAS DENIED THAT THE M COMPONENT REPRESENTS UNACCOUNTED INTEREST; RATHER HE HAS TRIED TO SAY AT VARIOUS TIM ES THAT IT REPRESENTS CONSTRUCTION MATERIAL OR THAT IT REPRESENTS PENAL INTEREST ON D ELAYED PAYMENT OF INTEREST. HOWEVER, THE A.O. HAS BROUGHT OUT ON DETAILED DESCRIPTION OF THE NATURE OF THE ENTRIES AND THE COMPUTATIONS THEREIN WHICH CONCLUSIVELY SHOW THAT T HE M COMPONENT IS CLEARLY INTEREST COMPUTED ON THE PRINCIPAL, AND NOT ON THE C COMPONENT OF INTEREST, WHICH ESTABLISHES THAT THE DEPOSITION OF SH. NAVEEN CHOUD HARY THAT THE M COMPONENT IS A PENAL INTEREST ON DELAYED PAYMENT OF INTEREST, IS P ATENTLY FALSE. APART FROM THESE HANDWRITTEN DIARIES OF SH. NAVEEN CHOUDHARY, THE A. O. HAS ALSO BROUGHT OUT THE CONTENTS OF VARIOUS OTHER DOCUMENTS CONTAINED IN TH E COMPUTER HARD DISC SEIZED FROM THE PREMISES OF U.K. PAINTS GROUP WHICH UNEQUIVOCAL LY CORROBORATE THAT M COMPONENT IS UNACCOUNTED INTEREST ON THE LOAN. THE RELEVANT DOCUMENTS FOUND IN THE COMPUTER HAVE ALSO BEEN REPRODUCED IN THE ASSESSMEN T ORDER ITSELF. FOR EXAMPLE, THE HANDWRITTEN NOTINGS OF SH. NAVEEN CHOUDHARY AT ANNEXURE AA-1, PAGE 53 SHOW INTEREST AMOUNTS RECEIVABLE IN CHEQUE FOR THE MONTH S OF MAY, JUNE AND JULY AND ALSO TDS THEREIN IN RESPECT OF THE LOAN RS. 30 CRORES GI VEN BY THE CONSORTIUM TO M/S SAS SERVIZIO PVT. LTD. FOR THE C COMPONENT. SIMILARLY FOR THE MONTHS OF MAY, JUNE AND JULY THE MATERIAL (OR M COMPONENT) WITHOUT TDS IS ALSO DEPICTED. AN EXAMINATION OF THESE MATERIAL SHOWS THAT THE CHEQUE COMPONENT F OR EACH MONTH CORRESPOND INTEREST @16% P.A. ON A PRINCIPAL OF RS. 30 CRORES (AS REDUCED FROM TIME TO TIME DUE TO PARTY REPAYMENT OF PRINCIPAL BY M/S SAS SERVIZIO PVT. LTD.) THE ONE-THIRD OF THIS AMOUNT IS REFLECTED IN THE BOOKS OF M/S WANG INVEST MENT PVT. LTD. HAS REFLECTS I.T.A. NOS. 3005, 3006 & 3007(DEL) OF 2017 8 INTEREST ACCRUED @ 16% P.A. ON LOAN OF RS. 10 CRORE S GIVEN BY IT. SIMILARLY INTEREST @ 16% P.A. IS CREDITED IN THE BOOKS OF M/S SPAN HOLDI NGS PVT. LTD. AND M/S SARLA FABRICS PVT. LTD. THIS IS AS PER THE AGREEMENT ENTE RED INTO BY THE LENDERS WITH M/S SAS SERVIZIO PVT. LTD. AN EXAMINATION OF THE MATER IAL OR M COMPONENT SHOWS THAT IT IS CALCULATED AT THE RATE OF 20% PER MONTH ON TH E PRINCIPAL AMOUNT OF RS. 30 CRORES (AS REDUCED FROM TIME TO TIME DUE TO PART-REPAYMENT ). THE DOCUMENT SEIZED AND IDENTIFIED AS ANNEXURE A-12 PAGES 117 TO 125, ARE E XCEL SHEETS WHICH SHOW SEPARATE SETS OF CALCULATIONS AT THE RATE OF 16% PE R MONTH (AND ALSO DEDUCTING TDS THEREON) AND ALSO SEPARATELY INTEREST COMPUTED ON T HE SAME PRINCIPLE AT THE RATE OF 20% (WITHOUT ANY TDS). FURTHER CORROBORATIVE EVIDEN CE OF THIS FOUND AT ANNEXURE AA-1, PAGE 2 WHICH CLEARLY SHOWS M/S SAS SERVIZIO PVT. LTD. RS. 30 CRORES (20+16%) WHICH IS HANDWRITTEN NOTING OF SH. NAVEEN CHOUDHARY. SIMILAR EXCEL SHEETS FOR DIFFERENT PERIOD (MAY, 2009 TO MARCH, 20 10) HAVE ALSO BEEN FOUND AS EXCEL SHEET ADJUSTMENTS IN INTERNAL EMAIL COMMUNICA TION FORM SH. RAJNEESH GUPTA TO SH. NAVEEN CHOUDHARY DATED 19.02.2010, BOTH PERSONS BEING OF THE U.K. PAINTS GROUP. VARIOUS OTHER HANDWRITTEN NOTINGS OF SH. NAV EEN CHOUDHARY AT ANNEXURE AA-1, PAGES 23 (BACK) ALSO SHOW THE TOTAL INTEREST COMPUTATION IT HAS BEEN SPLIT INTO PARTS I.E. 20% AND 16%. DOCUMENT SEIZED AND IDENTIF IED AS HANDWRITTEN DIARY NOTINGS AT ANNEXURE AA-1, PAGE-25(BACK) ALSO SHOWS SIMILAR CALCULATIONS OF INTEREST FOR THE MONTH OF MARCH, APRIL, MAY AND JUNE. THE YEAR A ND LENDER DETAILS ARE NOT GIVEN HERE BUT THE CORRELATION OF THE CHEQUE ENTRIE S WITH THE ACCOUNTS COPIES OF THE VARIOUS LENDERS SHOWS THAT THESE ENTRIES PERTAIN TO MARCH, 2009 TO JUNE, 2009 IN RESPECT OF LOAN GIVEN TO M/S SAS SERVIZIO PVT. LTD. THE EVIDENCE IS NOT JUST RESTRICTED TO COMPUTATION OF INTEREST. IT ALSO SHOW S ACTUAL RECEIPT OF UNACCOUNTED INTEREST FROM M/S SAS SERVIZIO PVT. LTD. EVEN THOUG H SH. NAVEEN CHOUDHARY HAS CONSISTENTLY DENIED THAT THESE ENTRIES FOR 20% REPR ESENT UNACCOUNTED INTEREST I.T.A. NOS. 3005, 3006 & 3007(DEL) OF 2017 9 RECEIVABLE FROM M/S SAS SERVIZIO PVT. LTD., THE QUA LITY OF THE EVIDENCE RECOVERED CONCLUSIVELY PROVES THAT THE AMOUNT INDEED REPRESEN TS UNACCOUNTED INTEREST PAID BY M/S SAS SERVIZIO PVT. LTD. 4.1.8 I HAVE ALSO GONE THROUGH COPIES OF TH E SEIZED DOCUMENTS REFERRED TO BY THE A.O. ALL THE DOCUMENTS RELIED UPON BY THE A.O. ARE PAGES OF SEIZED DIARIES (IDENTIFIED AS AA-1 AND AA-2) CONTAINING HANDWRITTE N NOTES OF SH. NAVEEN CHOUDHARY, CHIEF FINANCIAL OFFICER (CFO) OF THE U.K . PAINTS GROUP. THESE DIARIES WAS RECOVERED FROM HIS POSSESSION. DURING THE SEARC H DATED 16.09.201 ION THE U.K. PAINTS GROUP, ITS DIRECTORS SH. K.S. DHINGRA AND SH . G.S. DHINGRA, WHO HEAD THE BUSINESS AND LOOK AFTER THE DAY TO DAY AFFAIRS OF U .K. PAINTS GROUP WERE COVERED IN THE SEARCH. SH. NAVEEN CHOUDHARY IS THE CFO OF THE U.K. PAINTS GROUP AND REPORTS DIRECTLY TO SH. K.S. DHINGRA. THEREFORE NOTINGS MAD E ADMITTEDLY IN HIS OWN HANDWRITING RELATING TO FINANCIAL MATTERS OF THE U. K. PAINTS GROUP ( OF WHICH HE IS THE CFO) CANNOT BE OUTRIGHT DISMISSED AS HAVING NO EVID ENTIARY VALUE. THESE NOTINGS HAVE TO BE EXAMINED VIZ-A-VIZ THE ENTRIES IN BOOKS OF ACCOUNTS FOR DRAWING CONCLUSIONS WHICH WOULD BE REASONABLE AND BELIEVABL E, AND WITHIN THE REALM OF HUMAN PROBABILITY. AT THE OUTSET, IT WOULD BE NECES SARY THEREFORE TO LOOK INTO THE ENTRIES IN THE SEIZED DOCUMENTS. THE NARRATION OF E ACH ENTRY AND THE CONCLUSIONS THAT CAN BE DRAWN FROM THE SAME ARE GIVEN BELOW. THE INF ERENCE DRAWN ON EACH ENTRY OF THE SEIZED DOCUMENTS ARE MENTIONED IN THE THIRD COL UMN OF THE TABLE BELOW, AND THE FINAL CONCLUSIONS THAT ARE DRAWN FROM THESE ENTRIES , ARISE FROM AN ANALYSIS OF THE ENTRIES IN THE DOCUMENTS VIZ-A-VIZ THE LEDGER ACCOU NTS OF APPELLANT (BORROWER) IN THE BOOKS OF THE LENDERS. I.T.A. NOS. 3005, 3006 & 3007(DEL) OF 2017 10 SEIZED DOCUMENT ENTRIES IN THE DOCUMENT INFERENCE DRAWN ENTRY-WISE AA - 1/2 30 CR - 20% - 64 DAYS 20+16 INTEREST@20% ON 30 CR. IS NOT REFLECTED IN BOOKS OF APPELLANT. INTEREST @16% IS REFLECTED IN BOOKS TOTAL INTEREST IS 36% (20% ACCOUNTED, 16% UNACCOUNTED) CONCLUSIONS: 1. THIS SHOWS THAT UK PAINTS GROUP IS EXPECTING UNA CCOUNTED INTEREST @20% ON THE ENTIRE LOAN OF RS.30 GIVEN BY THE CONSORTIUM OF WAN G INVESTMENT, SARLA FABRICS AND AND SPAN HOLDINGS. TOTAL INTEREST IS @36% A A - 1/53 SAS OUTSTANDING (GROUP) MAY JUNE JULY CHEQUE 40,76,712 39,45,205 40,76,712 LESS TDS 2JLZS2 &J22JM 9*217.83 31.52,929 + 30.51.221 + 31,52,929 93,57,079 ( 31,19,028) MAY JUNE JULY MATERIAL 50,95,890 49,31,507 52,95,397 MONTHLY INTEREST CALCULATED @16% ON LOAN AMOUNT OF RS.30 CRORES (ACCOUNTED FOR) MONTHLY INTERST CALCULATED@20% ON LOAN AMOUNT OF RS 30 CRORES (NOT ACCOUNTED FOR) I.T.A. NOS. 3005, 3006 & 3007(DEL) OF 2017 11 TOTAL 151,23,281 OUR SHARE 50,41,095 TOTAL UNACCOUNTED INTEREST FOR MAY -JULY ON THE LOAN SUM OF RS.30 CR SHARE OF UNACCOUNTED INTEREST IS CALCULATED AT RS.50,41,095/- CONCLUSION: 1. THE TOTAL INTEREST PAYABLE BY SAS SERVIZIO IS @ 36%, OUT OF WHICH 16% IS PAYABLE BY CHEQUE. UNACCOU NTED INTEREST PAYABLE @20% PA 1/25 MARCH APRIL MAY JUNE MATERIAL 5520548 4931507 5095890 4931507 LESS MATL 5520548 4931507 2047945 NIL NIL 3047945 4931507 APRIL MAY JUNE TOTAL CHEQUE 3945205 4076712 3945205 LESS:TDS 893984 923783 893984 3051221 3152929 3051221 9255371 MONTHLY INTEREST CALCULATED @20%PA FOR MARCH- JUNE2009 ON LOAN AMOUNT OF RS.30 CRORES. (NOT ACCOUNTED FOR). UNACCOUNTED INTEREST FOR MARCH & APRIL FULLY RECEIVED, AND PARTLY RECEIVED FOR MAY MONTHLY INTEREST CALCULATED @16% ON LOAN AMOUNT OF RS.30 CRORES. (ACCOUNTED FOR) CONCLUSION: AL INTEREST PAYABLE BY SAS SERVIZIO IS @ 36%, OUT O F WHICH 16% IS PAYABLE BY . UNACCOUNTED INTEREST PAYABLE @20%> PA HINTED INTEREST IS SEEN TO BE ACTU ALLY RECEIVED. 1/24 (DISCUSSED BELOW), SHOWS THAT THIS REFERS TO I HE YEAR 2009 ORATES THE NOTINGS AT AA-1/24 AND AA-1/23 ( DISCUSSED BELOW) 1. THE TOT CHEQUE 2. UNACCC 3. READ W 4. CORROB 1/24 (BACK) ACCOUNT TILL MAY 09 MARCH PENDING 55,20,548 APRIL &MAV 09 100.27.397 155,47,945 RECEIVED 125.00.000 CASH (UNACCOUNTED) INTEREST @20% PA RECEIVABLE FOR MARCH TO MAY 09) UNACCOUNTED INTEREST ACTUALLY RECEIVED TILL END OF MAY09 I.T.A. NOS. 3005, 3006 & 3007(DEL) OF 2017 12 30,47,945 BALANCE UNACCOUNTED INT. RECBLE ADDFC) NET OF TDS 62.04.151 CHEQUE COMPONENT RECBLE , NET OF TDS TILL END OF MAY 2009 TILL MAY 09 92,52,096 CHQ+CASH INTEREST RECBLE AT END OF MAY09 ACCOUNT TILL JUNE 09 MARCH PENDING 55,20,548 APRIL.MAV & JUNE 149.58.904 204,79,452 RECEIVED 125.00.000 CASH (UNACCOUNTED) INTEREST PENDING PAYMENT FOR MARCH TO JUNE 09) UNACCOUNTED INTEREST ACTUALLY RECEIVED TILL END OF JUNE 09 79,79,452 BALANCE UNACCOUNTED INT. RECBLE ADDFCL NET OF TDS 92.55.373 CHEQUE COMPONENT RECEIVABLE, NET OF TDS TILL END OF MAY 2009 1,72,34,825 TOTAL CHQ+CASH INTEREST RECEIVABLE AT END OF JUNE09 L/23 9810194363 NUMBER OF SAS GROUP CONTACT (SH SUNIL SACHDEVA). TOTAL 1,97,34,825 TOTAL INTEREST RECEIVABLE ON THE DATE OF THIS NOTE. 125.00.0001 INTEREST RECEIVED IN CASH FOR MARCH 2009. 1,72,34,825 BALANCE INT. PENDING. 3M CHEQUE 92.55,373 (MARCH) INTEREST REED BY CHEQUE @36%, LESS TDS(ACCOUNTED FOR) FOR 3 MONTHS. 79,79,452 BALANCE INTEREST RECEIVABLE, UNACCOUNTED. I.T.A. NOS. 3005, 3006 & 3007(DEL) OF 2017 13 4.1.9 THE A. O. HAS ALSO RELIED ON THE CONTENTSOF T WO EMAILS EXTRACTED FROM THE COMPUTER HARD DISK OF UK PAINTS GROUP SEARCH OF 16. 09.2011, THE CONTENTS OF WHICH ARE DISCUSSED BELOW : (I) A-12/117 TO 125 : THIS IS A MS-EXCEL FILED SEIZ ED FROM THE COMPUTER OF U.K. PAINTS GROUP. THE EXCEL FILE CONTAINS DETAILS OF MONTHLY INTEREST @ 20% PA PAYABLE, AS WELL AS INTEREST ACTUALLY RECEIVED DATE-WISE, AGAINST THIS INTEREST RECEIVABLE @20%. THE PERIOD COVERED IN THIS TABLE IS FROM APRIL 2009 TO SEPTEMBER 2010. TH ERE IS ANOTHER TABLE SHOWING SIMILAR DETAILS OF INTEREST RECEIVABLE @16% AND AS WELL AS INTEREST ACTUALLY RECEIVED DATE-WISE, FOR THE SAME PERIOD AND THE SAME PRINCIPAL AMOUNT. THE PRINCIPAL AMOUNT SHOWS CHANGES OVER THE PERIOD OF TIME. THE PRINCIPAL AMOUNT SEEN THERE IN MATCHES EXACTLY WITH THE LOAN ACCOUNT OF SAS SERVIZIO IN THE BOOKS OF WANG INVESTMENT P. LTD THE INTEREST ENTRIES @16% ALSO MATCH WITH THE INTEREST RECEIVED ENTRIES IN THE LED GER ACCOUNT OF SAS SERVIZIO IN THE BOOKS / \ 20% + 16% MARCH 30,20,548 APRIL TO JUNE 09 149,58.904 MATERIAL 179.79.452 THE TOTAL INTEREST AMOUNT COMPRISES OF THE 20% AND 16% COMPONENTS. BALANCE UNACCOUNTED CASH RECEIVABLE FOR MARCH2009. UNACCOUNTED CASH RECEIVABLE @20%PA FOR APRIL TO JUNE 2009. TOTAL UNACCOUNTED INTEREST RECEIVABLE. CONCLUSION : 1. THE TOTAL INTEREST PAYABLE BY SAS SERVIZIO IS @ 36% , OUT OF WHICH 16% IS PAYABLE BY CHEQUE. UNACCOUNTED INTEREST PAYABLE @20% PA 2. ON THE DATE OF WRITING OF THIS NOTE, RS25,00,000/- UNACCOUNTED CASH RECEIVED OUT OF THE MARCH 2009 RECEIVABLES OF RS.55,20,528/- 3 . THE TERM MATERIAL IS USED FOR UNACCOUNTED INTERES T I.T.A. NOS. 3005, 3006 & 3007(DEL) OF 2017 14 OF WANG INVESTMENT P. LTD. THE INTEREST ENTRIES @20 % PA ( BOTH RECEIVABLE AND ACTUALLY RECEIVED) ARE NOT REFLECTED IN THE BOOKS OF ACCOUNT OF THE APPELLANT. IT IS THEREFORE ABUNDANTLY CLEAR THAT THESE SHEETS CONSTITUTE A DET AILED RECORD MAINTAINED BY THE UK PAINTS GROUP OF THE INTEREST RECEIVED FROM SAS SERVIZIO, B OTH ACCOUNTED AND UNACCOUNTED, BY WANG INVESTMENT P. LTD. THESE SHEETS ALSO SHOW COMP UTATION OF PENAL INTEREST RECEIVABLE ON DELAYED PAYMENT OF INTEREST BY SAS SERVIZIO. THE SE TABLES ALSO CONTAIN EVIDENCE ACTUAL RECEIPT ON 28.9.2010 BY WANG INVESTMENT P LTD., OF PENAL INTEREST OF A SUM OF RS.29,66,288/- ON THE DELAYED PAYMENT OF UNACCOUNTE D INTEREST. (II) A-35 ; THIS IS AN EXCEL SHEET ATTACHED TO AN E MAIL DT.9.2.2010 FROM RAJNISH GUPTA(ACCOUNTANT OF UK PAINTS GROUP) TO SH. N. CHOUDHARY(CFO, UK PAINTS GROUP). THIS EXCEL SHEET HAS BEEN RECOVERED FROM A COMPUTER SEIZED FROM THE PREMISES OF THE UK PAINTS GROUP. THIS CONTAINS SEPARATE INTEREST COMPUTATIONS @20% AND 16% PA. FOR THE PERIOD MAY 2009 AND MARCH 2010, SHOWING INTER ALIA, RECEIPT OF UNACCOUNTED INTEREST ON A REGULAR BASIS , TOTALLING RS. 1,50,00,000 DURING THIS PERIOD. 4.1.10 IT IS ALSO ABUNDANTLY CLEAR THAT THE U.K. P AINTS GROUP HAS BEEN RECEIVING INTEREST @ 36% P.A. OVERALL ON THE LOANS GIVEN BY IT TO SAS SERVIZIO P LTD. IT IS SH. NAVEEN CHOUDHARY, CFO OF THE U.K. PAINTS/DHINGRA GROUP WHO IS MANAGING THIS TRANSACTI ON ON BEHALF OF THE U.K. PAINTS/DHINGRA GROUP, AND THE ENTRIES ARE FOUND IN HIS DIARY. IT IS AN UN DISPUTED FACT THAT THE ENTRIES ARE IN THE HANDWRITI NG OF SH. NC CHOUDHARY. IT IS TOO FACILE TO CLAIM THAT THE ENTRIES IN HIS DIARY WERE ONLY PROJECTION ENTRIES, SINCE THE VERIFIABLE ENTRIES ARE MATCHING WITH THE BOOKS OF ACCOUNTS. THERE IS EVEN IN ADMISSION IN THE FORM OF NOTINGS, ABOUT ACTUAL RECE IPT OF UNACCOUNTED CASH BY WAY OF INTEREST. SH. N. CHOUDHARY, CFO IN THE MOST RESPONSIBLE OFFICER I N CHARGE OF FINANCE IN THE UK PAINTS GROUP, AND IT IS BUT NATURAL THAT HE WOULD KEEP TRACK OF THE R ECEIVABLE AND RECEIPTS, BOTH BY WAY OF CHEQUE AND I.T.A. NOS. 3005, 3006 & 3007(DEL) OF 2017 15 CASH FOR HIS INTERNAL CONTROL OF THE TRANSACTIONS. THUS, I AM OF THE FIRM VIEW THAT THE ENTRIES ARE NO T MERE SCRIBBLINGS, BUT REPRESENT THE ACTUAL FACTS OF AFFAIRS IN RESPECT OF LOANS GIVEN TO SAS SERVIZIO. 4.1.11 I HAVE EXAMINED LEDGER ACCOUNT OF THE LENDER S IN THE BOOKS OF THE BORROWERS. A SUM OF RS. 30 CR ORES IS REFLECTED AS LOAN GIVEN TO M/S SERVIZIO PVT. LTD . THIS LOAN HAS BEEN GIVEN UNDER A COMBINED LOAN AGREEMENT ENTERED INTO BY M/S SPAN HOLDINGS PVT. LT D. (SPAN GROUP), M/S SARLA FABRIC PVT. LTD. (SHAHI GROUP) AND WANG INVESTMENT AND FINANCE PVT. LTD. (U.K. PAINTS GROUP), WHEREIN RS. 30 CRORES HAVE BEEN LOAN TO M/S SAS SERVIZIO PVT. LTD. THIS AGREEMENT SHOW INTEREST PAYABLE AT THE RATE OF 16% P.A. SEPARATE POST DATED CHEQUES (PDCS) OF RS. 10 CRORES HAS BEEN HANDED OVER TO EACH OF THE LENDERS BY M/S SAS SERVIZIO PVT. LTD. I N RESPECT OF REPAYMENT THE PRINCIPAL AMOUNT. THE APPELLANT (BORROWER) HAS ALSO HANDED OVER CHEQUES B Y WAY OF INTEREST PAID IN ADVANCE (NET OF TDS) AT THE RALE OF 22.66 % SEPARATELY TO EACH OF T HE LENDERS. THE LOAN HAS BEEN SECURED, BY WAY OF COLLATERAL SECURITY OF LAND BELONGING TO SH. SUN IL SACHDEVA, MD OF THE BORROWER COMPANY. THIS LOAN AGREEMENT DATED 26.01.2008 HAS BEEN REPEATEDLY EXTENDED TILL THE ENTIRE LOAN HAS BEEN REPAID IN INSTALLMENTS, AND THE ENTIRE LOAN WAS REPAID IN A.Y. 2011-12. AT THE TIME OF EACH EXTENSION, FRESH CHEQUES FOR INTEREST PAYABLE IN ADVANCE HAS BEEN GI VEN TO EACH OF THE LENDERS SEPARATELY. THUS IT WOULD APPEAR FROM READING OF HANDWRITTEN DIARY OF S H. NAVEEN CHOUDHARY, THE SEIZED EXCEL SHEETS, DISC AND THE LOAN AGREEMENT THAT WHILE EACH OF THE LENDERS HAD GIVEN SEPARATE CHEQUES TO M/S SAS SERVIZIO PVT. LTD., WANG INVESTMENTS P. LTD., (THRO UGH SH. NAVEEN CHOUDHARY, CFO) WAS ACTING AS THE COORDINATOR ON BEHALF OF THE CONSORTIUM WITH TH E BORROWER. ON 16.01.2013, ANOTHER SEARCH ON THE U.K. PAINTS GROUP TOOK PLACE, SIMULTANEOUSLY WI TH SEARCHES ON SHAHI GROUP AND THE SPAN GROUP AND ALSO THE APPELLANT. AS HELD IN THE PRECEDING PA RA IT IS CLEAR THAT UNDISCLOSED INTEREST HAS BEEN PAID BY SAS SERVIZIO PVT. LTD. AND ACKNOWLEDGED IN THE NOTINGS OF SH. NAVEEN CHOUDHARY AND THE EXCEL SHEETS TO HAVE BEEN RECEIVABLE AND ALSO RECEI VED. HOWEVER, NO EVIDENCE HAS BEEN RECOVERED FROM THE SHAHI GROUP AND THE SPAN GROUP O R EVEN FROM THE U.K. PAINTS GROUP, WHICH WOULD INDICATE THAT THE THE SHAHI GROUP / SPAN GROU P WAS TO RECEIVE OR HAD RECEIVED ANY I.T.A. NOS. 3005, 3006 & 3007(DEL) OF 2017 16 UNDISCLOSED INTEREST INCOME IN RESPECT OF TRANSACTI ON WITH THE M/S SAS SERVIZIO GROUP. STATEMENTS WERE RECORDED OF SMT. VANDANA WADHWA (CFO) OF THE S PAN GROUP AND SH. HARISH AHUJA, M.D. OF THE SHAHI GROUP, BOTH OF WHOM HAVE EXPRESSED IGNORA NCE ABOUT THE M COMPONENT. OF COURSE, THE A.O. HAS REFERRED TO EXCEL SHEET EXTRACTED FROM THE COMPUTER HARD DISK OF THE UK PAINTS GROUP WHICH SHOWS COMPUTATION OF INTEREST BOTH ON ACCOUNT OF M AND C COMPONENT WHICH BEARS WORDS VANDANA JI AT TOP. THE A.O. WAS OF THE VIEW THAT THESE CALCULATIONS ARE APPARENTLY DONE BY M/S VANDANA WADHWA. 1 AM OF THE VIEW THAT THIS CONCLUSI ON SEEMS TO BE BASED ON SURMISE AND NOT ON EVIDENCE. THERE IS ALSO NO EVIDENCE EVEN BY WAY OF ANY COMMUNICATION FROM SMT. VANDANA WADHWA/SPAN GROUP RECOVERED EITHER FROM THE COMPUTE R/PREMISES OF THE U.K. PAINTS GROUP OR OF THE SPAN GROUP OR SHAHI GROUP TO SHOW THAT THIS COM PUTATION HAS BEEN DONE BY SMT. VANDANA WADHWA EVEN THE EMAIL OF SH. BALA PARAMESWARAN (OF THE SHAHI GROUP) REFERRED TO BY THE A.O. ALSO DOES NOT FURTHER CASE OF THE ASSESSING OFFICER . THIS EMAIL FROM SH. BALA PARAMESWARAN IS DATED 24.07.2010 AND ADDRESSED TO SH. NAVEEN CHOUDH ARY. THIS EMAIL HAS BEEN SENT IN RESPONSE TO THE EMAIL OF SH. NAVEEN CHOUDHARY DATED 16.07.20 10 WHEREIN SH. NAVEEN CHOUDHARY SEEMS TO HAVE FORWARDED A SAS CALCULATION WHILE MENTIONING THAT THERE IS A HUGE OUTSTANDING OF INTEREST. IT IS PERTINENT TO NOTE THAT AS ON 16.07.2010 THERE WA S A HUGE OUTSTANDING INTEREST @ 16% EVEN AS PER THE TERMS OF THE AGREEMENT, THIS EMAIL IS DATED 16.07.2010 AND THEREFORE IT IS DIFFICULT TO DRAW A CONCLUSION THAT THE REFERENCE TO INTEREST IS THE SAME AS APPEARING IN THE EXCEL SHEET SENT INTERNALLY BY SH. RAJNEESH GUPTA TO SH. NAVEEN CHOU DHARY MANY MONTHS EARLIER ON 09.02.2010. MOREOVER, AS FOR THE EMAIL SENT BY SH. BALA PARAMES WARAN, HE DOES ACKNOWLEDGE THAT INTEREST IS RECEIVABLE ON BOTH COUNTS, BUT HE DOES NOT MENTIO N ANY INTEREST RECEIVABLE IN CASH OVER AND ABOVE THE AGREED INTEREST @16% P.A. HOWEVER A READI NG OF THE AGREEMENT ENTERED INTO BY THE PARTIES ALSO SHOWS THAT THERE IS INTEREST TO BE LEV IED ON TWO COUNTS, I.E. AT THE RATE OF 16% P.A. AND PENAL INTEREST AT THE RATE OF 36% ON TIRE DELAYED P AYMENT. IN FACT, IN HIS EMAIL, SH. BALA PARAMESWARAN MENTION THAT ROTATION WILL TAKE PLACE SO THAT ACTUALS MATCH WITH AGREEMENTS. THUS, A VIEW THAT THE EMAIL FROM SH. BALA PARAMESWARAN AC TUALLY IS IN CONSONANCE WITH THE AGREEMENT I.T.A. NOS. 3005, 3006 & 3007(DEL) OF 2017 17 ITSELF, IS DIFFICULT TO FIND FAULT WITH. MOREOVER, THE EMAIL ALSO MENTIONS SECURITY PAPERS WHICH IS ALSO IN CONSONANCE WITH THE AGREEMENT FOR TAKING CO LLATERAL SECURITY OF LOAN AGAINST THE LOAN. THUS IS NO EVIDENCE RECOVERED EITHER FROM THE U.K. PAINTS GROUP OR FROM THE SPAN GROUP OR FROM THE SHAHI GROUP THAT SOME OF THE UNDISCLOSED I NTEREST HAS BEEN ACTUALLY BEEN PASSING ON TO OR HAS BEEN ACKNOWLEDGED IN THE EVIDENCE TO BE R ECEIVABLE OR RECEIVED BY THE SPAN GROUP OR SHAHI GROUP FROM SAS SERVIZIO P. LTD., IN EITHER OF THE TWO SEARCHES DATED 16.09.2011 AND 16.01.2013. IN MY OPINION, THE FOLLOWING CONCRE TE CONCLUSIONS CAN BE DRAWN FROM THE EVIDENCE ON RECORD ;- (I) A LOAN OF RS. 30 CRORES WAS PROVIDED BY THE CONSOR TIUM TO M/S SAS SERVIZIO PVT. LTD. (II) SH. NAVEEN CHOUDHARY ON BEHALFOF THE WANG INVESTMEN TS P. LTD. WAS COORDINATING THE TRANSACTION WITH M/S SAS SERVIZIO PVT. LTD. ON BEHALF OF THE CONSORTIUM. (III) INTEREST AT THE RATE OF 16% P.A. HAS BEEN RECEIVED BY EACH MEMBER OF CONSORTIUM SEPARATELY (AFTER DEDUCTION OF TDS) AS PER THE AGRE EMENT AND THIS HAS BEEN ACCOUNTED FOR BY THE APPELLANT IN ITS BOOKS. (IV) UNACCOUNTED INTEREST AT THE RATE OF 20% P.A. HAS B EEN RECEIVED BY THE M/S WAN INVESTMENT P. LTD. (OF U.K. PAINTS GROUP) ON THE LOAN OF RS. 3 0 CRORES (THE TOTAL LOAN FROM FROM THE CONSORTIUM) , AND THIS IS ACKNOWLEDGED IN THE NOTINGS OF THE CF O OF THE U.K. PAINTS GROUP. HOWEVER, THERE IS NO EVIDENCE THAT ANY PART OF THIS SUM HAS BEEN PASSED ON TO THE OTHER MEMBERS OF THE CONSORTIUM OR THAT THEY WERE EVEN DUE TO RECEIVE THIS UNACCOUNTED INTEREST. I.T.A. NOS. 3005, 3006 & 3007(DEL) OF 2017 18 (V) M/S WANG INVESTMENT PVT, LTD. HAS ALSO RECEIVED SOM E AMOUNT OF UNACCOUNTED CASH TOWARDS PENAL INTEREST DUE TO DELAYED PAYMENT OF UN ACCOUNTED INTEREST BY THE BORROWER. (VI) THERE IS EVIDENCE IN THE FORM OF DIARY NOTINGS OF SH. N. CHOUDHARY SEIZED IN THE SEARCH OF 16.09.2011 (AA-1 AND AA-2), AS WELL AS EVIDENCE IN THE FORM OF EMAILS SEIZED FROM THE COMPUTER OF U. K. PAINTS GROUP IN THE SEARCH OF 16. 01.2013 (A-35) TO SHOW THAT WANG INVESTMENT PVT. LTD. HAS BEEN RECEIVING UNACCOUNTED INTEREST INCOME FROM SAS SERVIZIO @20% P.A. ON THE LOAN ENTIRE LOAN AMOUNT OF RS. 30 CRORES. (VII) THE SEIZED DOCUMENTS ARE CONCLUSIVE EVIDENCE THAT WANG INVESTMENT P. LTD HAS BEEN RECEIVING UNDISCLOSED INTEREST FROM THE APPELLANT O N THE LOAN SUM OF RS.30 CRORES, AND NO OTHER EVIDENCE (SUCH AS ANY STATEMENT OF SH. NAV IN CHOUDHARY OR SH HARISH AHUJA OR SMT VANDANA WADHWA, WHICH ARE IN ANY CASE, IN MY VIEW, NEUTRAL DOCUMENTS) IS EVEN NECESSARY TO ESTABLISH THIS. 4.1.12 OF COURSE, THE ENTRIES IN THE ABOVE ME NTIONED SEIZED DOCUMENTS PERTAIN TO A.Y. 2010-11. THE QUESTION THAT FOLLOWS IS, WHETHER THE THE ENTRIES PERTAINING TO UNDISCLOSED INTEREST IN AY 2010-11 CAN BE EXTRAPOLATED TO HOLD THAT THE APP ELLANT HAS BEEN RECEIVING UNACCOUNTED INTEREST FOR THE ENTIRE TENURE OF THE LOANS. AS DISCUSSED EA RLIER, THE LOAN AMOUNT OF RS.30 CRORES EXTENDED ON 26.06.2008 AND CONTINUED TILL MAY.2010 (I.E., OV ER THE A.Y. 2008-09, A.Y. 2009-10 AND A.Y.2010-11), ALBEIT WITH REDUCED PRINCIPAL AMOUNT DUE TO INTERMITTENT PART REPAYMENTS. IT IS BUT NATURAL, IN THE ABSENCE OF ANY EVIDENCE TO THE CONT RARY, THAT THE LOAN WOULD BE BEARING OVERALL INTEREST @ 36% AT ALL TIMES DURING THE TENURE OF TH E LOAN. IT HAS BEEN RECENTLY HELD ON 27.10.2016 BY THE JURISDICTIONAL DELHI HIGH COURT IN SMT. DAYA WANTI V CIT IN ITA 357/2015, THAT :- I.T.A. NOS. 3005, 3006 & 3007(DEL) OF 2017 19 16. SECTION 153A, WHICH PROVIDES FOR AN ASSESSMENT IN CASE OF SEARCH, AND WAS INTRODUCED BY THE FINANCE ACT, 2003 W.E.F. 01.06.2003, DOES NOT PROVI DE THAT A SEARCH ASSESSMENT HAS TO BE MADE STRICTLY ON THE BASIS OF EVIDENCE FOUND AS A R ESULT OF SEARCH OR OTHER DOCUMENTS AND SUCH OTHER MATERIALS OR INFORMATION AS ARE AVAILABLE WIT H THE ASSESSING OFFICER AND RELATABLE TO THE EVIDENCE FOUND. THE EARLIER SECTION 158BB WHICH IS NOT APPLICABLE IN CASE OF A SEARCH CONDUCTED AFTER 31.05.2003, PROVIDED THAT THE COMPU TATION OF THE UNDISCLOSED INCOME CAN ONLY BE ON THE BASIS OF THE EVIDENCE FOUND AS A RESULT O F SEARCH OR OTHER DOCUMENTS AND MATERIALS OR INFORMATION AS ARE AVAILABLE WITH THE ASSESSING OFFICER, PROVIDED THEY ARE RELATED TO THE MATERIALS FOUND. SECTION 153A(L)(B) REQUIRES ASSESS MENT OR REASSESSMENT OF TOTAL INCOME OF THE SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH TOOK PLACE. THIS, HOWEVER, DOES NOT MEAN THAT THE ASSESSMENT UNDER SECTION 153A CAN BE ARBITRARY OR MADE WITHOUT ANY R ELEVANCE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UN DER THIS SECTION ONLY ON THE BASIS OF SEIZED MATERIAL. THE QUESTION HOWEVER, IS WHETHER T HE SEIZED MATERIAL CAN BE RELIED UPON TO ALSO DRAW THE INFERENCE THAT THERE CAN BE SIMILAR T RANSACTIONS THROUGHOUT THE PERIOD OF SIX YEARS COVERED BY SECTION 153 A. THE JUDGMENT OF THE SUPREME COURT IN CIT V. H.M. ESUFALI H.M. ABDULALI [1973] 90 ITR 271 IS RELEVANT HERE. W ITH INTRODUCTION OF SECTION 153A THE ACT RESEMBLES THE PRE-CHAPTER XIV-B REGIME, WHERE ASSES SMENTS WERE COMPLETED ON THE BASIS OF MATERIAL AND EVIDENCE COLLECTED DURING SEARCH. IN H .M. ESUFALI (SUPRA) ASSESSMENTS UNDER THE MP GENERAL SALE TAX ACT AND CENTRAL SALES TAX ACT W ERE COMPLETED OF A DEALER MAINLY ON THE BASIS OF THE RETURN OF THE ASSESSEE AND THE BOOKS O F ACCOUNTS. LATER, THE SALES TAX DEPARTMENT INSPECTED THE ASSESSEE'S BUSINESS PREMISES AND FOUN D A BILL BOOK FOR A PERIOD OF 19 DAYS DISCLOSING A SALE TO THE TUNE OF RS.31,171/- WHICH WAS NOT PREVIOUSLY SHOWN IN THE ACCOUNT BOOKS MAINTAINED BY HIM. THE SALES TAX OFFICER INIT IATED REASSESSMENT PROCEEDINGS AND AFTER REJECTING THE ACCOUNT BOOKS ESTIMATED THE ESCAPED T URNOVER AT RS. 2,50,000/- UNDER THE MP GENERAL SALES TAX ACT AND FURTHER AMOUNTS UNDER THE CENTRAL SALES TAX ACT, ADOPTING THE SALE OF RS. 31,171/- AS ESCAPED TURNOVER FOR A PERIOD OF 19 DAYS AS THE BASIS. THE SUPREME COURT REJECTED THE ASSESSEES CONTENTION THAT THE STO'S A CTION WAS ARBITRARY AND THAT AS HE HAD NO EVIDENCE OF ESCAPED TURNOVER FOR THE ENTIRE ACCOUNT ING PERIOD, HE WAS NOT LEGALLY CORRECT IN ESTIMATING OR INFERRING THAT THE ASSESSEE WOULD HAV E INDULGED IN SALES OUTSIDE THE BOOKS OF ACCOUNTS FOR THE ENTIRE ACCOUNTING PERIOD. THE SUPR EME COURT HELD THAT : - 'IT IS NOW PROVED AS WELL AS ADMITTED THAT HIS DEAL INGS OUTSIDE HIS ACCOUNTS DURING A PERIOD OF 19 DAYS WERE OF THE VALUE OF RS.31,171.28 . FROM THIS CIRCUMSTANCE, IT WAS OPEN I.T.A. NOS. 3005, 3006 & 3007(DEL) OF 2017 20 TO THE SALES TAX OFFICER TO INFER THAT THE ASSESSEE HAD LARGE-SCALE DEALINGS OUTSIDE HIS ACCOUNTS. THE ASSESSEE HAS NEITHER PLEADED NOR ESTA BLISHED ANY JUSTIFIABLE REASON FOR NOT ENTERING IN HIS ACCOUNTS THE DEALINGS NOTED IN THE BILL BOOK SEIZED. IT IS OBVIOUS THAT HE WAS MAINTAINING FALSE ACCOUNTS TO EVADE PAYMENT OF SALES TAX. IN SUCH A SITUATION, IT WAS NOT POSSIBLE FOR THE SALES TAX OFFICER TO FIND OUT PRECISELY THE TURNOVER SUPPRESSED. HE COULD ONLY MAKE AN ESTIMATE OF THE SUPPRESSED TURNO VER ON THE BASIS OF THE MATERIAL BEFORE HIM. SO LONG AS THE ESTIMATE MADE BY HIM IS NOT ARBITRARY AND HAS NEXUS WITH FACTS DISCOVERED, THE SAME CANNOT BE QUESTIONED. IN THE V ERY NATURE OF THINGS THE ESTIMATE MADE MAY BE AN OVER-ESTIMATE OR AN UNDER-ESTIMATE O R AN UNDER-ESTIMATE. BUT, THAT IS NO GROUND FOR INTERFERING WITH HIS 'BEST JUDGMENT'. IT IS TRUE THAT THE BASIS ADOPTED BY THE OFFICER SHOULD BE RELEVANT TO THE ESTIMATE MADE. TH E HIGH COURT WAS WRONG IN ASSUMING THAT THE ASSESSING AUTHORITY MUST HAVE MATERIAL BEF ORE IT TO PROVE THE EXACT TURNOVER SUPPRESSED. IF THAT IS TRUE, THERE IS NO QUESTION O F 'BEST JUDGMENT' ASSESSMENT. THE ASSESSEE CANNOT BE PERMITTED TO TAKE ADVANTAGE OF H IS OWN ILLEGAL ACTS. IT WAS HIS DUTY TO PLACE ALL FACTS TRUTHFULLY BEFORE THE ASSESSING AUT HORITY. IF HE FAILS TO DO HIS DUTY, HE CANNOT BE ALLOWED TO CALL UPON THE ASSESSING AUTHORITY TO PROVE CONCLUSIVELY WHAT TURNOVER HE HAD SUPPRESSED. THAT FACT MUST BE WITHIN HIS PERSON AL KNOWLEDGE. HENCE, THE BURDEN OF PROVING THAT FACT IS ON HIM. NO CIRCUMSTANCE HAS BE EN PLACED BEFORE THE ASSESSING AUTHORITY TO SHOW THAT THE ASSESSEE'S DEALINGS DURI NG SEPTEMBER 1, 1960, TO SEPTEMBER 19, 1960, OUTSIDE HIS ACCOUNTS WERE DUE TO SOME EXC EPTIONAL CIRCUMSTANCE OR THAT THEY WERE PROPORTIONATELY MORE THAN HIS DEALINGS OUTSIDE HIS ACCOUNTS DURING THE REMAINING PERIODS. THE ASSESSING AUTHORITY COULD NOT HAVE BEE N IN POSSESSION OF ANY CORRECT MEASURE TO FIND OUT THE ESCAPED TURNOVER DURING THE PERIODS NOVEMBER 1, 1959, TO AUGUST 31, 1960, AND SEPTEMBER 20, 1960, TO OCTOBER 20, 19 60. THE TASK OF THE ASSESSING AUTHORITY IN FINDING OUT THE ESCAPED TURNOVER WAS B Y NO MEANS EASY. IN ESTIMATING ANY ESCAPED TURNOVER, IT IS INEVITABLE THAT THERE IS SO ME GUESS-WORK. THE ASSESSING AUTHORITY WHILE MAKING THE 'BEST JUDGMENT' ASSESSMENT, NO DOU BT, SHOULD ARRIVE AT ITS CONCLUSION WITHOUT ANY BIAS AND ON RATIONAL BASIS. THAT AUTHOR ITY SHOULD NOT BE VINDICTIVE OR CAPRICIOUS. IF THE ESTIMATE MADE BY THE ASSESSING A UTHORITY IS A BONA FIDE ESTIMATE AND IS BASED ON A RATIONAL BASIS, THE FACT THAT THERE IS N O GOOD PROOF IN SUPPORT OF THAT ESTIMATE IS IMMATERIAL. PRIMA FACIE, THE ASSESSING AUTHORITY IS THE BEST JUDGE OF THE SITUATION. IT IS HIS 'BEST JUDGMENT' AND NOT OF ANYONE ELSE. THE HIGH CO URT COULD NOT SUBSTITUTE ITS 'BEST JUDGMENT' FOR THAT OF THE ASSESSING AUTHORITY. IN T HE CASE OF 'BEST JUDGMENT' ASSESSMENTS, THE COURTS WILL HAVE TO FIRST SEE WHETHER THE ACCOU NTS MAINTAINED BY THE ASSESSEE WERE RIGHTLY REJECTED AS UNRELIABLE. IF THEY COME TO THE CONCLUSION THAT THEY WERE RIGHTLY REJECTED, I.T.A. NOS. 3005, 3006 & 3007(DEL) OF 2017 21 THE NEXT QUESTION THAT ARISES FOR CONSIDERATION IS WHETHER THE BASIS ADOPTED IN ESTIMATING THE TURNOVER HAS REASONABLE NEXUS WITH THE ESTIMATE MADE. IF THE BASIS ADOPTED IS HELD TO BE A RELEVANT BASIS EVEN THOUGH THE COURTS MAY THIN K THAT IT IS NOT THE MOST APPROPRIATE BASIS, THE ESTIMATE MADE BY THE ASSESSING AUTHORITY CANNOT BE DISTURBED. IN THE PRESENT CASE, THERE IS NO DISPUTE THAT THE ASSESSEE'S ACCOU NTS WERE RIGHTLY DISCARDED. WE DO NOT AGREE WITH THE HIGH COURT THAT IT IS THE DUTY OF TH E ASSESSING AUTHORITY TO ADDUCE PROOF IN SUPPORT OF ITS ESTIMATE. THE BASIS ADOPTED BY THE S ALES TAX OFFICER WAS A RELEVANT ONE WHETHER IT WAS THE MOST APPROPRIATE OR NOT. HENCE T HE HIGH COURT WAS NOT JUSTIFIED IN INTERFERING WITH THE SAME.' THEREFORE, AS PER THE LAW LAID DOWN ABOVE FOR PROCE EDINGS U/S 153A, EVEN IF NO MATERIAL PER-SE WERE TO FOUND PERTAINING PARTICULAR LY TO THE YEAR UNDER CONSIDERATION, ONCE SECTION 153A IS TRIGGERED ON ACCOUNT OF UNEARTHING OF INCRIMINATING MATERIAL DURING SEARCH, THE AO IS EMPOWERED TO COMPUTE THE TOTAL IN COME FOR SIX ASSESSMENT YEAR PRIOR TO THE YEAR OF SEARCH. THERE ARE NO FETTERS OR LIMI TATION UNDER THE STATUTE, SO AS TO CURTAIL THE JURISDICTION OF THE A.O. TO ADOPT THE EVIDENCE AVAILABLE, OVER THE ENTIRE PERIOD OF THE LOAN (UNLIKE THE POSITION UVS 158BC). PREPONDERANCE OF PROBABILITY DICTATES THAT THOSE LOANS TOO WOULD ALSO BE BEARING INTEREST RATE OF 36 %. THIS IS ALSO THE SETTLED LAW AS EXPOUNDED IN THE DECISIONS OF THE SUPREME COURT IN COMMISSIONER OF INCOME TAX. V.DURGA PRASAD MORE (1971) 82 ITR 540 (SC) AND SUMA TI DAYAL V. COMMISSIONER OF INCOME TAX (1995) 214 ITR 801 (SC). 5. FROM THE MATERIAL AVAILABLE ON RECORD WHICH IS FAIRLY CONCEDED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE DURING THE COURSE OF HEARING THAT NO MATERIAL WAS GATHERED FROM THE PREMISES OF THE ASSESSEE, THE BASIS OF MAKING ASSESSMENT UNDER SECTION 153A ARE 2 E-MAILS, WHICH WERE FOUND TO BE IN THE COMPUTER HARD DISK RECOVERE D FROM THE POSSESSION OF THE CFO OF U.K. PAINTS. ON THIS UNDIS PUTED FACTUAL MATRIX, WE ARE REQUIRED TO EXAMINE WHETHER THE ASSE SSING OFFICER WAS JUSTIFIED IN MAKING ASSESSMENT UNDER SECTION 153A O F THE ACT. DEHORE I.T.A. NOS. 3005, 3006 & 3007(DEL) OF 2017 22 THE FACT THAT NO INCRIMINATING MATERIAL WAS RECOVER ED FROM THE POSSESSION OF THE ASSESSEE. SO FAR AS THE JUDGEMEN T OF THE HONBLE DELHI HIGH COURT RELIED UPON BY THE LEARNED COUNSEL FOR T HE ASSESSEE IN THE CASE OF PR. CIT VS. MERA BABA REALITY ASSOCIATES PV T. LTD. (SUPRA) IS CONCERNED, THE ISSUE BEFORE THE HONBLE HIGH COURT WAS WITH REGARD TO LEGALITY OF THE PROCEEDINGS MADE BY INVOKING THE PR OVISIONS OF SECTION 263 OF THE ACT. THEREFORE, IN OUR CONSIDERED VIEW, THIS JUDGEMENT IS NOT APPLICABLE ON THE FACTS OF THE PRESENT CASE. ANOTH ER JUDGEMENT RELIED UPON BY THE LEARNED COUNSEL FOR THE ASSESSEE IN THE CASE OF PR. CIT VS. SUBHASH KHATTAR (SUPRA) THE FACTS IN THAT CASE WERE THAT A SEARCH TOOK PLACE ON 17 TH AUGUST, 2011 IN THE CORPORATE OFFICE OF AEZ GROUP A T 301 303, BAKSHI HOUSE, NEHRU PLACE, NEW DELHI, DURING W HICH A HARD DISK WAS FOUND AND SEIZED AND A PRINT OUT OF A FILE NAME D D.P. CORRECTION SHEET.XLS. WERE TAKEN. THIS SHEET CONTAINED DETAI LS OF SALES STATUS OF INDIRAPURAM HABITANT CENTRE AND AT SERIAL NO. 32 OF THE SAID SHEET THE NAME OF THE ASSESSEE APPEARED. ACCORDING TO THE RE VENUE THE ASSESSEE HAD INVESTED A SUM OF RS.20 CRORES. THEREFORE, ON 10 TH FEBRUARY, 2012 A SEARCH OPERATION WAS UNDERTAKEN UNDER SECTION 132 O F THE ACT IN THE CASE OF THE ASSESSEE. THIS SEARCH DID NOT RESULT I N THE DISCOVER OF ANY DISCRIMINATING MATERIAL ON THE ASSESSEE. SUBSEQUEN TLY, THE ASSESSING OFFICER ISSUED A NOTICE UNDER SECTION 153A OF THE A CT AND THE ASSESSMENT WAS FRAMED UNDER SECTION 153A OF THE ACT. THIS ACT ION WAS CHALLENGED BEFORE THE APPELLATE AUTHORITIES. THE HONBLE COUR T AFTER CONSIDERING THE FACTS AND THE LAWS HELD THAT THE ENTIRE CASE WAS AG AINST THE ASSESSEE ON WHAT WAS FOUND DURING THE SEARCH OF THE PREMISES OF THE AEZ GROUP. IT IS THUS APPARENT ON THE FACTS OF THE CASE THAT THE NOTICE TO THE ASSESSEE UNDER SECTION 153A OF THE ACT WAS MISCONCEIVED SINC E THE SO-CALLED I.T.A. NOS. 3005, 3006 & 3007(DEL) OF 2017 23 INCRIMINATING MATERIAL WAS NOT FOUND DURING THE SEA RCH OF THE ASSESSEE PREMISES. THE REVENUE SHOULD HAVE PROCEEDED AGAINS T THE ASSESSEE ON THE BASIS OF THE DOCUMENTS DISCOVERED UNDER ANY OTH ER PROVISION OF LAW, BUT CERTAINLY NOT UNDER SECTION 153A OF THE ACT. T HIS GOES TO THE ROOT OF THE MATTER. THE FACTS IN THE PRESENT CASE ARE IDEN TICAL. FURTHER, WE DO NOT FIND ANY MERIT INTO THE CONTENTION OF THE LEARN ED DEPARTMENTAL REPRESENTATIVE THAT THE SEARCH WAS CONDUCTED SIMULT ANEOUSLY ON THE ASSESSEE AND M/S. U.K. PAINTS, IT SHOULD BE PRESUME D THAT THE MATERIAL WAS RECOVERED FROM THE POSSESSION OF THE ASSESSEE S INCE THE ASSESSEE BELONGED TO SAME GROUP. NO SUCH PRESUMPTI ON IS AVAILABLE UNDER THE PROVISIONS OF THE ACT. MOREOVER, THE REV ENUE HAS NOT PLACED ANY MATERIAL SUGGESTING THAT THE ASSESSEE IS A SUBS IDIARY OR CLOSELY HELD SISTER CONCERN OF M/S. U.K. PAINTS. A SEPARATE AND DISTINCT TRANSACTION WOULD NOT IPSO FACTO MAKE THE ASSESSEE AN ENTITY WH ICH IS NOT SEPARATE FROM M/S. U.K. PAINTS. WE, THEREFORE, RESPECTFULLY FOLLOWING THE RATIO LAID DOWN BY THE HONBLE HIGH COURT IN THE CASE OF PR. CIT VS. SUBHASH KHATTAR (SUPRA) HOLD THAT THE ASSESSMENT MADE UNDER SECTION 153A OF THE ACT IS BAD IN LAW. THE SAME, THEREFORE, IS QUA SHED ON THIS GROUND. WE ARE NOT EXPRESSING OUR VIEW ON THE MERITS OF THE CASE. THE OTHER GROUNDS HAVE BECOME INFRUCTUOUS. I. T. APPEAL NOS. 3006 & 3007 (DEL) OF 2017 : 6. THE PARTIES HAVE ADDRESSED THE SAME ARGUMENTS AS WERE MADE IN I. T. APPEAL NO. 3005 (DEL) OF 2017. SINCE WE HAVE DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE, THESE APPEALS ARE ALLOWED. I.T.A. NOS. 3005, 3006 & 3007(DEL) OF 2017 24 7. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED. 8. IN NUT SHELL, ALL THE THREE APPEALS FILED BY T HE ASSESSEE ARE ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON : 22 ND FEBRUARY, 2018 . SD/- SD/- ( G. D. AGARWAL ) ( KUL BHARAT ) PRESIDENT JUDICIAL MEMBER DATED : THE 22 ND FEBRUARY, 2018 . *MEHTA* COPY OF THE ORDER FORWARDED TO :- 1. APPELLANT; 2. RESPONDENT; 3. CIT; 4. CIT (APPEALS); 5. DR, ITAT, ND. BY ORDER ASSISTANT REG ISTRAR I.T.A. NOS. 3005, 3006 & 3007(DEL) OF 2017 25