SUN STAR GEMS P.LTD, MUMBAI V. ITO 5(3)(4), MUMBAI

ITA 3074/MUM/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3088 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 02-03-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 04-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RITESH MISRADR
• Keywords: Unexplained expenditure; Salary income; Opportunity of being heard; Principle of natural justice; Source of fund; Additional evidence
• Section: 69C; 143(3); 133(6); 131; 10; 68

Judgement Text

E IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO.3074 /MUM/2012 ( / ASSESSMENT YEAR : 2008-09) M/S SUN STAR GEMS PVT. LTD.,342, PANCHRATNA, OPERA HOUSE, MUMBAI 400 004. / V. INCOME TAX OFFICER 5(3)(4), MUMBAI. ./ PAN : AADCS9525L ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY SHRI DEEPAK TRALSHAWALA REVENUE BY : SHRI RITESH MISRA(D.R.) / DATE OF HEARING : 09-03-2016 / DATE OF PRONOUNCEMENT :07-06-2016 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER THIS APPEAL, FILED BY THE ASSESSEE COMPANY, BEING ITA NO. 3074/MUM/2012, IS DIRECTED AGAINST THE ORDER DATED 15-02-2012 PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- 9, MU MBAI (HEREINAFTER CALLED THE CIT(A)), FOR THE ASSESSMENT YEAR 2008-09, THE APPELLATE PROCEEDINGS BEFORE THE LEARNED CIT(A) ARISING FROM THE ASSESSME NT ORDER DATED 29-12-2010 PASSED BY THE LEARNED ASSESSING OFFICER (HEREINAFTE R CALLED THE AO) U/S 143(3) OF THE INCOME TAX ACT,1961 (HEREINAFTER CALL ED THE ACT). ITA 3074/MUM/2012 2 2. THE REVISED GROUNDS OF APPEAL RAISED BY THE ASSE SSEE COMPANY BEFORE INCOME TAX APPELLATE TRIBUNAL, MUMBAI (HEREINAFTER CALLED THE TRIBUNAL) READ AS UNDER:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW , THE LD COMMISSIONER INCOME TAX (APPEALS) - 9, MUMBAI, ERRE D IN CONFIRMING THE FOLLOWING ADDITIONS MADE BY THE INCOME TAX OFFICE R 5(3)(4): I. CONFIRMING THE ADDITION OF RS. 37,32,531/- U/S 41( 1) BEING THE SUMS PAYABLE TO M/S LIBER AND SOLOW, NEW YORK FOR TH E PURCHASE OF DIAMONDS, WITHOUT APPRECIATING THAT S.41(1) IS ATTRACTED ONLY WHEN THE LIABILITY HAS BEEN FINALLY CEASED. II. CONFIRMING THE ADDITION OF RS. 7,09,256/- U/S 4 1(1) AS 'BOGUS LIABILITY' BEING THE SUMS PAYABLE TO M/S STAR ROUGH BVBA, BELGIUM FOR THE PURCHASE OF DIAMONDS, , WITHOUT APPRECIATING THAT S .41(1) IS ATTRACTED ONLY WHEN THE LIABILITY HAS BEEN FINALLY CE ASED. III. CONFIRMING THE ADDITION U/S 41(1) OF RS. 1,00, 000/- MADE ON THE GROUNDS THAT THE ASSESSEE HAD FAILED TO ESTABLISH THE ID ENTITY AND CREDIT-WORTHINESS OF THE CREDITOR MR. MADARSINGH WAGH ELA, AND THE GENUINENESS OF THE SUNDRY CREDITOR FOR EXPENSES, ALT HOUGH THE PAN OF THE CREDITOR WAS GIVEN TO THE AO ALBEIT WITH A TYPOGRAPHI CAL ERROR OF ONE LETTER. IV. CONFIRMING THE ADDITION OF RS. 1,05,474/- AS UNE XPLAINED CREDIT IN THE NAME OF SHRI RASHMIKANT GOPANI, MADE SOLELY O N THE BASIS OF HIS STATEMENT RECORDED WITHOUT IT BEING PUT TO THE TEST OF CR OSS-EXAMINATION BY THE ASSESSEE. V. CONFIRMING THE ADDITION OF RS. 80,000/- U/S 69C IN THE NAME OF SHRI RASHMIKANT GOPANI, MADE SOLELY ON THE BASIS OF HIS STATEMENT RECORDED WITHOUT IT BEING PUT TO THE TEST OF CROSS-EXAM INATION BY THE ASSESSEE. VI. CONFIRMING THE ADDITION OF RS. 2,00,000/- U/S 68 OF LOAN GIVEN BY MRS. TARUNA NAVNIT PARIKH, A SHARE HOLDER OF THE ASSESSEE- COMPANY, ON THE GROUND THAT THERE IS CASH DEPOSITED OF RS.2,00,000/- IN HER ACCOUNT ON THE DATE OF HER ADVANCING RS.2,00,0 00/- TO THE ASSESSEE , WITHOUT APPRECIATING THAT THE ASSESSEE IS N OT EXPECTED TO EXPLAIN THE SOURCE OF THE SOURCE. VII. CONFIRMING THE ADDITION OF RS. 7,17,500/- U/S 6 8 OF LOAN GIVEN BY MR. NAVNIT PARIKH, A DIRECTOR-SHAREHOLDER IN THE ASSESSEE-COMPANY, ON THE GROUND THAT THE SAID DIRECTOR FAILED TO EXPLAIN THE SOURCE OF THE ITA 3074/MUM/2012 3 AFORESAID DISPUTED CASH CREDIT OF RS.7,17,500/- WI THOUT APPRECIATING THAT THE ASSESSEE IS NOT EXPECTED TO EXPLAIN THE SOURCE OF SOURCE. VIII. CONFIRMING THE ABOVE ADDITIONS ALTHOUGH THESE TRANSACTIONS/ENTRIES WERE ALREADY DISCLOSED IN THE INC OME TAX RETURNS OF THE EARLIER YEARS, MANY OF WHOSE ASSESSMENTS WERE MADE U/S 143(3). 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E COMPANY IS ENGAGED IN THE BUSINESS OF TRADING AND MANUFACTURING OF DIAMON DS. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S 143(3) READ WITH SECTION 143(2) OF THE ACT, THE ASSESSEE COMPANY WAS ASKED T O PRODUCE BOOKS OF ACCOUNT ALONG WITH SUPPORTING BILLS, VOUCHERS AND B ANK STATEMENT FOR VERIFICATION. SUMMONS WERE ISSUED U/S 131 OF THE A CT TO MR. NAVNIT A. PARIKH AND SMT. TARUNA NAVNIT PARIKH TO APPEAR BEFORE THE AO BUT BOTH OF THEM FAILED TO APPEAR INSPITE OF THE SUFFICIENT TIME AND OPPORTUNITY BEEN GIVEN TO THEM. THUS, IT WAS CLEAR TO THE A.O. THAT ASSESSEE COMPANY WAS NOT COOPERATING WITH THE DEPARTMENT AND DELIBERATELY TR YING TO AVOID THE DEPARTMENT SO THAT EVIDENCES COLLECTED DURING INVES TIGATION COULD BE CONFRONTED TO THEM. THE ASSESSMENT WAS COMPLETED U /S 143(3) OF THE ACT AFTER ANALYZING THE DOCUMENTS SUBMITTED BY THE ASSE SSEE COMPANY OR GATHERED BY THE AO BY CONDUCTING THIRD PARTY INVEST IGATION. IT WAS OBSERVED BY THE AO FROM THE BALANCE SHEET AND THE DETAILS OF SUNDRY CREDITORS THAT THERE IS NO MOVEMENT IN THE CREDITORS OF THE EARLIE R YEARS FOR GOODS AND EXPENSES IN RESPECT OF THE FOLLOWING CREDITORS:- SL NO. NAME OF THE PARTY AMOUNT(IN RS.) 1 LIBER & SOLOW CO. NEW YORK 37,32,531/- 2 STAROUGH BVBA BELGIUM 7,09,256/- ITA 3074/MUM/2012 4 3 MADARSINGH WAGHELA 1,00,000/- 4 RASHMIKANT GOPANI 1,05,474/- IN THE CASE OF LIBER & SOLOW CO., NEW YORK THE ASSE SSEE COMPANY WAS SHOW CAUSED AS TO WHY THE AMOUNT OF RS. 37,32,531/- SHOW N AS PAYABLE TO LIBER & SOLOW COMPANY SINCE 2003 SHOULD NOT BE BROUGHT TO T AX U/S 41(1) OF THE ACT AS THE SAID PAYMENT IS OUTSTANDING SINCE LAST MORE THAN 6 YEARS. THE ASSESSEE COMPANY SUBMITTED THAT IT HAD IMPORTED ROU GH DIAMOND FROM M/S LIBER & SOLOW CO IN 1999 AND DUE TO THE FINANCIAL C RISIS, THE SAID PAYMENT IS OUTSTANDING . IN SUPPORT THEREOF , THE ASSESSEE COM PANY SUBMITTED COPIES OF BILLS, CORRESPONDENCE WITH RBI ETC. . THE A.O. OBS ERVED THAT THE IMPORT PURCHASE BILL FILED BY THE ASSESSEE COMPANY TO SUBS TANTIATE THE CLAIM OF LIABILITY OF M/S LIBER & SOLOW CO IS OF PERIOD 1991 I.E. 20 YEARS OLD THAT TOO IN THE NAME OF VIHIT GEMS P LTD AND NOT IN THE NAME OF THE ASSESSEE COMPANY. AS PER THE AO , THE ASSESSEE COMPANY EARLIER HAD SU BMITTED THAT THE SAID CREDITOR IS OUTSTANDING SINCE 2002 BUT SUBSEQUENTLY CHANGED ITS STAND AND STATED THAT THE CREDITOR IS OUTSTANDING FROM 1999. AS PER THE A.O. IT IS OUTSTANDING SINCE 1991 AND THE ASSESSSEE COMPANY HA S DELIBERATELY TRIED TO MISLEAD THE REVENUE REGARDING AGE OF THE CREDITOR. THE ASSESSEE COMPANY HAS FILED A COPY OF APPLICATION DATED 24/02/2003 MA DE WITH THE RBI FOR PERMISSION FOR MAKING DELAYED PAYMENT FOR IMPORT PU RCHASES. ADDITIONAL DOCUMENTS VIDE LETTER DATED 5 TH MARCH 2003 SUCH AS C.A CERTIFICATE, REASON FOR SUCH LONG DELAY OF 12 YEARS, INTEREST WAIVER CE RTIFICATE FROM OVERSEAS SUPPLIER FOR PROCESSING THE ASSESSEE COMPANY'S APPL ICATION WERE SOUGHT BY THE RBI. NOTHING HAS BEEN PLACED ON RECORD BY THE A SSESSEE COMPANY REGARDING THE COMPLIANCE MADE IN PURSUANCE OF THE D IRECTIONS BY THE RBI. THE A.O. HELD THAT THE ASSESSEE COMPANY IS NOT ABLE TO SUBSTANTIATE BEFORE THE RBI EVEN DURING 2003 THAT THE SAID AMOUNT IS PA YABLE BY THEM. NO COMMUNICATION HAS BEEN FURNISHED BY THE ASSESSEE CO MPANY FROM LIBER & SOLOW COMPANY, NEW YORK REGARDING DEMAND FOR THIS M ONEY MADE BY THEM IN ITA 3074/MUM/2012 5 LAST 19 YEARS. THUS, IT WAS HELD THAT THE LIABILIT Y OF RS. 37,32,531/- HAS CEASED LONG BACK AND THE SAID AMOUNT IS NOT PAYABLE BY THE ASSESSEE COMPANY AND ACCORDINGLY THE SAID AMOUNT WAS ADDED T O THE TOTAL INCOME OF THE ASSESSEE COMPANY U/S 41(1) OF THE ACT BY THE AO VIDE ASSESSMENT ORDERS DATED 29/12/2010 PASSED U/S 143(3) OF THE ACT. WITH RESPECT TO THE STAROUGH BVBA BELGIUM, AN AMOUN T OF RS. 7,09,257/- WAS OUTSTANDING SINCE 2002, THE ASSESSEE COMPANY HA S FILED PURCHASE INVOICE DATED 6 TH SEPTEMBER, 2002 AND NO OTHER DOCUMENT LIKE CORRESP ONDENCE WITH BANK, RBI OR OVERSEAS SUPPLIERS WERE FILED TO ESTAB LISH THEIR CLAIM THAT THE SAID AMOUNT IS STILL PAYABLE AFTER LONG PERIOD OF 8 YEARS. NO COMMUNICATION FROM STAROUGH BVBA BELGIUM REGARDING DEMAND FOR THI S MONEY MADE BY THEM IN LAST 8 YEARS HAS BEEN FURNISHED BY THE ASSE SSEE COMPANY. THE A.O. OBSERVED THAT NO SUPPLIER WILL LEAVE SUCH A HUGE AM OUNT OF MONEY FOR 8 YEARS. NO CORRESPONDENCE HAS BEEN FILED WITH THE SAID SUPP LIER BY THE ASSESSEE COMPANY IN THE LAST 8 YEARS FOR THE REASON FOR NO N-PAYMENT OF THE LIABILITY, HENCE, ADDITION OF RS. 7,09,257/- WAS MADE AND ADDE D TO THE TOTAL INCOME OF THE ASSESSEE COMPANY U/S 41(1) OF THE ACT BY THE AO VIDE ASSESSMENT ORDERS DATED 29/12/2010 PASSED U/S 143(3) OF THE ACT. WITH RESPECT TO THE DUES PAYABLE TO MR. MADARSINGH WAGHELA OF RS. 1 LACS WHICH WAS SHOWN AS PAYABLE TO THIS PARTY. NOTICE U /S 133(6) OF THE ACT WAS ISSUED BUT NO REPLY WAS FILED BY THIS PARTY REGARDI NG THE GENUINENESS OF THE TRANSACTION. THE ASSESSEE COMPANY WAS ASKED TO PRO DUCE THIS PARTY ALONG WITH BOOKS OF ACCOUNTS, BANK STATEMENTS ETC. FOR VE RIFICATION BUT THE ASSESSEE COMPANY FAILED TO PRODUCE THE PARTY BUT FILED CONFI RMATION FROM THIS PARTY. THE A.O. NOTICED THAT THE SAID CONFIRMATION IS NOT SIGNED BY SH. MADARSINGH WAGHELA AND THE PAN WAS FOUND TO BE INVALID AS PER AIS OF ITD APPLICATION. SINCE THE ASSESSEE COMPANY FAILED TO ESTABLISH THE IDENTITY AND GENUINENESS OF THE TRANSACTION, THE AMOUNT OF RS. 1 LAC WAS ADD ED TO THE TOTAL INCOME OF ITA 3074/MUM/2012 6 THE ASSESSEE COMPANY U/S 41(1) OF THE ACT AS CEASED LIABILITY BY THE AO VIDE ASSESSMENT ORDERS DATED 29/12/2010 PASSED U/S 143(3 ) OF THE ACT. WITH RESPECT TO MR. RASHMIKANT GOPANI, AN AMOUNT OF RS. 1,05,474/- IS SHOWN TO BE PAYABLE TO THIS PARTY. THE AGE OF THE CREDITOR WAS NOT REPORTED BY THE ASSESSEE COMPANY INSPITE OF SPECIFIC QUERY. SU MMONS U/S 131 OF THE ACT WAS ISSUED TO SHRI RASHMIKANT GOPANI AND STATEMENT WAS RECORDED U/S 131 OF THE ACT ON 2 ND DECEMBER, 2010. IT WAS SUBMITTED BY SH. RASHMIKAN T GOPANI DURING THE COURSE OF RECORDING OF THE STATEM ENT THAT THE SAID PARTY WAS GIVEN ROUGH DIAMOND FOR THE PLANNING AND MARKIN G AND OTHER WORK WHICH WAS DONE BY SH. RASHMIKANT GOPANI. THE AVERAGE RATE FOR THE WORK IS AROUND RS. 25/- PER CARAT FOR THE PLANNING, MARKING AND AS SORTMENT WORK AND THE PAYMENT IS RECEIVED BY HIM IN CASH FROM THE ASSESSE E COMPANY. IT WAS ALSO STATED BY MR. RASHMIKANT GOPANI THAT HE NEVER RECEI VED ANY PAYMENT IN CHEQUE FROM THE ASSESSEE COMPANY. IT WAS ALSO STAT ED THAT THE QUANTITY OF WORK DONE IS NOT KNOWN AND WHICH SHOULD BE AROUND 70,000 TO 80,000 AND THE ENTIRE PAYMENT IS RECEIVED IN CASH. IT WAS ST ATED THAT THE LEDGER ACCOUNT GIVEN BY M/S SUNSTAR GEMS P. LTD. WAS SIGNED IN GOO D FAITH AND HE DOES NOT HAVE ANY RECORD TO CONFIRM THE ENTRIES. IT WAS ALS O CONFRONTED TO SH. RASHMIKANT GOPANI THAT AS PER THE LEDGER ACCOUNT AN AMOUNT OF RS. 35,000/- AND RS. 55,474/- WAS RECEIVED BY HIM IN CHEQUES , W HILE HE CONFIRMED THAT NO SUCH PAYMENTS WERE RECEIVED BY HIM IN CHEQUES. THUS , IT WAS OBSERVED BY THE A.O. THAT THE PAYMENTS MADE TO THE SAID PART Y IS FABRICATED AND AS PER THE STATEMENT OF SHRI RASHMIKANT GOPANI, ALL THE PA YMENT WERE RECEIVED IN CASH AND THE CONFIRMATION LETTER SIGNED BY HIM IS I N GOOD FAITH ONLY AND THE AMOUNT OF RS. 1,05,474/- REFLECTED AS PAYABLE TO HI M IN THE BOOKS OF THE ASSESSEE COMPANY IS BOGUS. IT WAS ALSO OBSERVED BY THE A.O. THAT THE ASSESSEE COMPANY WAS SHOWING RS. 850/- PER CARAT FO R ASSORTMENT AND PLANNING CHARGES WHEREAS AS PER THE STATEMENT OF SH RI RASHMIKANT GOPANI HE HAD RECEIVED RS. 25/- PER CARAT FOR THE SAID WOR K WHICH PROVES THAT THE ITA 3074/MUM/2012 7 ASSESSEE COMPANY IS INDULGING IN THE PRACTICE OF IN FLATING THE EXPENSES BY BOOKING BOGUS EXPENDITURE. THE ASSESSEE COMPANY WA S ASKED BY THE AO TO PRODUCE THE BOOKS OF ACCOUNT. THE SUMMONS U/S 131 OF THE ACT WERE ALSO ISSUED BY THE AO TO THE DIRECTOR MR. NAVNIT A PARIK H BUT HE FAILED TO APPEAR BEFORE THE AO. THUS, ADDITION OF RS. 1,05,474/- WA S MADE BY THE AO U/S 41(1) OF THE ACT AND THE AMOUNT WAS ADDED TO THE I NCOME OF THE ASSESSEE COMPANY BY THE AO IN THE ASSESSMENT ORDERS DATED 29 /12/2010 PASSED U/S 143(3) OF THE ACT AS WELL ADDITIONS OF RS.80,000/- WAS MADE U/S 69C OF THE ACT AS UNEXPLAINED EXPENDITURE BY THE AO VIDE ASSES SMENT ORDERS DATED 29/12/2010 PASSED U/S 143(3) OF THE ACT . IT WAS S TATED BY SHRI RASMIKANT GOPANI THAT HE HAS RECEIVED AROUND 70,000 TO 80,00 0 FOR THE WORK CARRIED OUT DURING THE PERIOD RELEVANT TO THE ASSESSMENT YE AR 2008-09 BUT THE AMOUNT WAS NOT REFLECTED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE COMPANY. THE ASSESSEE COMPANY WAS ASKED BY THE AO TO APPEAR BEFORE HIM ALONG WITH BOOKS OF ACCOUNTS BUT THE ASSESSEE COMPANY FAILED T O PRODUCE THE BOOKS OF ACCOUNTS. THE ASSESSEE COMPANY WAS ISSUED SUMMONS U /S 131 OF THE ACT DIRECTING SH NAVNIT A PARIKH TO APPEAR BEFORE THE A O PERSONALLY AND SINCE NO COMPLIANCE WAS MADE BY THE ASSESSEE COMPANY AGAINST THE SUMMONS ISSUED U/S 131 OF THE ACT, HENCE THE A.O. ADDED AN AMOUNT OF RS. 80,000/- AS UNEXPLAINED EXPENDITURE U/S 69C OF THE ACT WHICH TH E ASSESSEE COMPANY HAS PAID TO SH. RASHMIKANT GOPANI FOR THE WORK DONE DUR ING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR 2008-09. IT WAS ALSO OBSERVED BY THE A.O. THAT DURING THE PR EVIOUS YEAR, THE ASSESSEE COMPANY HAS RECEIVED UNSECURED LOAN OF RS. 2 LACS F ROM SMT. TARUNA NAVNIT PARIKH WHO IS HAVING MAJORITY SHAREHOLDING OF THE A SSESSEE COMPANY. THE ASSESSEE COMPANY WAS ASKED TO FILE THE LOAN CONFIR MATION OF THE LENDER ALONG WITH COPY OF INCOME TAX RETURN, BANK STATEMENT ETC. TO ESTABLISH THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE LOAN TRANS ACTION AND ACCORDINGLY THE ASSESSEE COMPANY FILED THE LOAN CONFIRMATION, B ANK STATEMENT OF THE ITA 3074/MUM/2012 8 LENDER AND COPY OF THE BALANCE SHEET OF THE LENDER. FROM THE BANK STATEMENT, THE A.O. OBSERVED THAT RS. 2 LACS WAS AD VANCED BY SMT. TARUNA NAVNIT PARIKH ON 20 TH APRIL, 2007 AND ON THE SAME DAY CASH OF RS. 2 LACS WAS DEPOSITED IN HER BANK ACCOUNT. FROM THE CAPITAL AC COUNT FILED BY SMT. TARUNA NAVNIT PARIKH, IT WAS OBSERVED BY THE AO THA T SHE HAD ONLY SALARY INCOME OF RS. 2,40,000/- @ RS. 20,000/- PER MONTH. SUMMONS WERE ISSUED U/S 131 OF THE ACT TO VERIFY THE SOURCE OF CASH BUT SHE FAILED TO ATTEND FOR THE REASONS THAT SHE HAD TO VISIT THE HOSPITAL. AGAIN OPPORTUNITY WAS GIVEN BUT SHE DID NOT APPEAR BEFORE THE A.O. TO EXPLAIN THE S OURCE OF MONEY DEPOSITED IN HER BANK ACCOUNT WHICH HAS BEEN ADVANCED AS LOAN TO THE ASSESSEE COMPANY OF WHICH SHE IS MAJORITY SHAREHOLDER. THUS, THE A.O. OBSERVED FROM THE STATEMENT OF SHRI RASHMIKANT GOPANI RECORDED DU RING THE ASSESSMENT PROCEEDINGS THAT IT IS CLEAR THAT ASSESSEE COMPANY HAS SOME UNDISCLOSED SOURCE OF INCOME WHICH THEY WERE PAYING TO GET THE WORK DONE AND WHICH IS NOT REFLECTED IN THE ASSESSEE COMPANYS BOOKS OF AC COUNTS. THE UNDISCLOSED SOURCE OF MONEY IS ALSO INTRODUCED BY THE ASSESSEE COMPANY IN ITS BOOKS OF ACCOUNTS IN THE DISGUISE OF UNSECURED LOAN ROUTED T HROUGH THEIR SHAREHOLDERS AND DIRECTORS. THE ASSESSEE COMPANY HAS TO ESTABLI SH THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION AND THEN THE ONUS SHIFTS TO THE REVENUE. THE AO RELIED UPON THE DECISION OF HONBLE HIGH COURT OF CALCUTTA IN THE CASE OF BHOLA SHANKAR COLD STORAGE PRIVATE LIMITED V. CIT IN 270 ITR 487 AND HONBLE PUNJAB AND HARYANA HIGH COU RT IN THE CASE OF RAUNAQ RAM NANDLAL V. CIT 254 ITR 617 . FURTHER IT WAS OBSERVED BY THE AO THAT THE ASSESSEE COMPANY HAS RECEIVED UNSECURED LOAN OF RS. 7,17,500/- FROM SHRI NAVNIT A PARIKH, DIRECTOR OF THE COMPANY. THE ASSESSEE COMPANY WAS ASKED TO FILE THE LOAN CONFIRMATIONS ALONG WITH THE COPY OF BANK STATEMENT BUT THE LENDER HAS PRODUCED ONLY LOAN CON FIRMATIONS, BUT HIS BANK STATEMENT EVIDENCING THE SOURCE OF FUNDS WAS NOT FI LED. AS PER THE LOAN CONFIRMATION, IT WAS OBSERVED BY THE AO THAT THE OP ENING BALANCE AS ON 1ST APRIL, 2007 WAS SHOWN AT RS. 7,30,970.75 WHEREAS IN THE SCHEDULE OF ITA 3074/MUM/2012 9 UNSECURED LOAN THE CLOSING BALANCE AS ON 31 ST MARCH, 2007 WAS SHOWN AT RS. 9,93,471.35, HENCE, THE LOAN CONFIRMATIONS WERE NOT CORRECT. SUMMONS U/S 131 OF THE ACT WAS ISSUED TO SHRI NAVNIT A PARIKH T O APPEAR BEFORE THE AO ALONG WITH THE BOOKS OF ACCOUNTS , BANK STATEMENTS, COPY OF INCOME TAX RETURN AND WAS ASKED TO EXPLAIN THE SOURCE OF FUNDS AND IN RESPONSE A LETTER DATED 22 ND DECEMBER, 2010 SIGNED BY THE AUTHORIZED REPRESENTA TIVE OF SHRI NAVNIT A PARIKH WAS RECEIVED BY THE AO STATING THAT SHRI NAVNIT A PARIKH IS NOT WELL AND ADVISED REST BY THE DOCTOR, HOWEVER, N O MEDICAL CERTIFICATE WAS FILED IN THIS REGARD. NO DOCUMENTS LIKE BANK STATEM ENT, BOOKS OF ACCOUNTS, SOURCES OF FUND OR COPY OF INCOME TAX RETURN WERE F ILED TO VERIFY THE CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION S BEFORE THE AO. THUS AS PER THE AO , THE ASSESSEE COMPANY FAILED TO PROVE THE GENUINENESS AND CREDITWORTHINESS OF THE TRANSACTIONS . THE ASSESSEE COMPANY FAILED TO PRODUCE ITS BOOKS OF ACCOUNTS , BANK STATEMENT NOR THE LEND ERS HAVE FILED ANY DETAILS TO EXAMINE THE GENUINENESS OF THE LOAN RECEIVED BY THE ASSESSEE COMPANY THROUGH THE LENDERS WHO ARE SHAREHOLDERS AND DIRECT ORS OF THE ASSESSEE COMPANY , THE A.O. MADE AN ADDITION OF RS. 9,17,500 /- AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE COMPANY AS CASH CREDIT U/S 68 OF THE ACT , VIDE ASSESSMENT ORDER DATED 29-12-2010 PASSED BY THE AO U/S 143(3) OF THE ACT. 5.AGGRIEVED BY THE ASSESSMENT ORDERS DATED 29-12-20 10 PASSED U/S 143(3) OF THE ACT BY THE A.O., THE ASSESSEE COMPANY FILED ITS FIRST APPEAL BEFORE THE LEARNED CIT(A). 6. BEFORE THE LEARNED CIT(A) THE ASSESSEE COMPANY S UBMITTED WITH RESPECT TO THE ADDITION OF RS. 46,47,262/- U/S 41(1) OF THE AC T , THAT THE ASSESSEE COMPANY PURCHASED ROUGH DIAMONDS ON 1ST APRIL,1999 WORTH US $ 83250.39 EQUIVALENT TO RS. 37,32,531 FROM M/S LIBER & SOLO C O. NEW YORK. THE ASSESSEE COMPANY SUBMITTED THAT THE LETTER DATED 16 TH AUGUST, 2006, 03 RD SEPTEMBER 2009, 24 TH SEPTEMBER, 2010 AND 9 TH FEBRUARY, 2011 FOR THE ITA 3074/MUM/2012 10 OUTSTANDING DUES SHOULD BE ADMITTED AS ADDITIONAL E VIDENCE UNDER RULE 46A OF THE INCOME TAX RULES, 1962. THE ASSESSEE COMPAN Y SUBMITTED THAT THE SUNDRY CREDITORS FOR GOODS EXISTING IN ASSESSEE COM PANYS BOOKS SINCE 1991 AND IT CANNOT BE PRESUMED THAT THE SAID LIABILITIES HAVE CEASED TO EXIST. THE ASSESSEE COMPANY SUBMITTED THAT IN THE ABSENCE OF A NY BILATERAL ACT OF WRITING OFF THE LIABILITY BY THE ASSESSEE COMPANY, THE SAID LIABILITIES COULD NOT HAVE CEASED TO EXIST. THE ASSESSEE COMPANY RELIED U PON DECISION OF CIT V. SITA DEVI JUNEJA(2010) 5 TAXMAN.COM 115(AHD.). SIMILAR A RGUMENTS WERE MADE WITH RESPECT TO SUNDRY CREDITORS FOR GOODS WORTH RS . 7,09,256.96 IN THE NAME OF M/S STAROUGH BVBA, BELGIUM. REGARDING, SUNDRY CREDITORS FOR EXPENSES OF RS. 1 L AC IN THE NAME OF SHRI MADARSINGH WAGHELA AND RS. 1,05,474.60 IN THE NAME OF SH. RASHMIKANT GOPANI, THE ASSESSEE COMPANY CONTENDED THAT THE OUT STANDING LABOUR CHARGES WERE PAYABLE SINCE THE YEAR 2006. IT WAS N OT PAID DUE TO FINANCIAL CRISIS. REGARDING NON-MATCHING OF PAN, THE ASSESSE E COMPANY EXPLAINED THAT THE ASSESSEE COMPANY WAS NOT IN CONTACT WITH THE SA ID PARTY AND HENCE UNABLE TO SUBMIT THE CORRECT PAN AND COPY OF THE CO RRECT PAN CARD. THE ASSESSEE COMPANY SUBMITTED BY WAY OF ADDITIONAL EVI DENCE TO PROVE CASH PAYMENT OF OUTSTANDING BILLS IN FINANCIAL YEAR 2008 -09 AND REQUESTED THAT THE SAME MAY BE ADMITTED UNDER RULE 46A OF INCOME TAX R ULES, 1962. WITH RESPECT TO SHRI RASHMIKANT GOPANI ALSO, THE ASSESSE E COMPANY SUBMITTED ADDITIONAL EVIDENCES AND SUBMITTED THAT THE SAID PA RTY WAS NOT MAINTAINING HIS BOOKS OF ACCOUNT. WITH RESPECT TO ADDITION OF CASH CREDITS OF RS. 9,1 7,500/- U/S 68 OF THE ACT , THE ASSESSEE COMPANY CONTENDED THAT THE ASSESSEE CO MPANY HAD RECEIVED RS. 7,17,500/- FROM DIRECTOR MR. NAVNIT A. PARIKH AND R S. 2 LACS FROM THE WIFE OF THE DIRECTOR ,MRS. TARUNA NAVNIT PARIKH. THE ASSES SEE COMPANY FILED LOAN CONFIRMATION ALONG WITH BALANCE SHEET, COPY OF INCO ME TAX RETURN FOR THE ITA 3074/MUM/2012 11 ASSESSMENT YEAR 2008-09 AND ALSO EXPLAINED THE SOUR CES OF FUNDS. IT WAS SUBMITTED BY THE ASSESSEE COMPANY THAT THE IDENTITY AND CREDITWORTHINESS OF THE UNSECURED LOANS WERE ALSO PROVED. CASH BOOK OF MRS. TARUNA NAVNIT PARIKH WAS ALSO SUBMITTED IN THE FORM OF ADDITIONAL EVIDENCE WHICH SHOWED THAT THE SAID CREDITOR HAD OPENING BALANCE OF RS. 1 3,71,215/- OUT OF WHICH RS. 2 LAKHS WAS ISSUED IN THE NAME OF THE ASSESSEE COMPANY. IT WAS ALSO EXPLAINED THAT THE SOURCE OF FUNDS IN THE HANDS OF MR. NAVNIT A. PARIKH IS CASH IN HAND WHICH IS GENERATED OUT OF OPENING BALA NCE OF RS. 5,09,624/-. IT WAS ALSO SUBMITTED THAT MR. NAVNIT A. PARIKH, DIRE CTOR IS NOT MAINTAINING ANY BANK ACCOUNT AS ON THE DATE OF CASH CREDITS. H E OPENED HIS BANK ACCOUNT IN BANK OF INDIA ON 18 TH JANUARY, 2008. IT WAS SUBMITTED THAT HE DEPOSITED CASH DIRECTLY IN THE ASSESSEE COMPANYS B ANK ACCOUNT. THUS, THE ASSESSEE COMPANY CONCLUDED THAT THE ASSESSEE COMPAN Y HAS EXPLAINED THE IDENTITY AND CREDITWORTHINESS OF THE CREDITORS. TH E ASSESSEE COMPANY ALSO FURNISHED THE COPIES OF ROC AND ANNUAL RETURN TO PR OVE THE NAME OF THE SHAREHOLDERS AS ON 31 ST MARCH, 2008. WITH RESPECT TO THE UNEXPLAINED EXPENDITURE OF RS. 80,000/- MADE U/S 69-C OF THE ACT, THE ASSESSEE COMPANY SUBMITTED THAT TH E A.O. EXAMINED THE WITNESS , SHRI RASHMIKAND GOPANI. THE WITNESS, SH RI RASHMIKAND GOPANI WAS NOT MAINTAINING ANY BOOKS OF ACCOUNT AND HE HAS GIVEN STATEMENT FROM HIS MEMORY. NO SHOW CAUSE NOTICE WAS ISSUED BY THE AO BEFORE MAKING ADDITIONS. THE A.O. SHOULD HAVE ALLOWED THE CROSS EXAMINATION OF SAID MR RASHMIKANT GOPANI BEFORE MAKING ADDITION U/S 69-C O F THE ACT, WERE THE CONTENTIONS OF THE ASSESSEE COMPANY. THE LEARNED CIT(A) OBSERVED THAT HIS PREDECESSOR CA LLED FOR REMAND REPORT FROM A.O. FOR VERIFICATION OF THE ADDITIONAL EVIDEN CES. ITA 3074/MUM/2012 12 WITH RESPECT TO THE IMPORT PURCHASE BILL FILED BY T HE ASSESSEE COMPANY, IT WAS OBSERVED BY THE AO IN REMAND REPORT PROCEEDINGS THA T THE CLAIM OF LIABILITY OF M/S LIBER & SOLOW CO. IS OF PERIOD 1991 I.E. 20 YE ARS OLD AND WAS IN THE NAME OF M/S VIHIT GEMS P. LTD. AND NOT IN THE NAM E OF THE ASSESSEE COMPANY, WHEREAS THE ASSESSEE COMPANY CLAIMED THAT THE IMPORT WAS MADE IN 1999. THE COPY OF CORRESPONDENCE MADE WITH THE PARTY THROUGH FAX IS FILED. IT WAS OBSERVED BY THE A.O. THAT THE CORRESP ONDENCES WERE NOT AVAILABLE AT THE TIME OF THE ASSESSMENT PROCEEDINGS BUT HAS S UDDENLY APPEARED AT THE TIME OF APPELLATE PROCEEDINGS WHICH INDICATES THAT THESE ARE AFTER THOUGHT AND WERE MANUFACTURED BY THE ASSESSEEE COMPANY AND HENC E WERE REJECTED. THERE WERE DISCREPANCIES IN THE FAX COPIES SUBMITTED BY T HE ASSESSEE COMPANY AND THE AO HELD THAT THESE ARE FORGED DOCUMENTS AND HEN CE WERE REJECTED. THE ASSESSEE COMPANY PLACED ON RECORD COPY OF APPLICATI ON DATED 24/02/2003 FILED WITH RBI FOR PERMISSION FOR MAKING DELAYED PA YMENT AND THE RBI SOUGHT ADDITIONAL DOCUMENTS FROM THE ASSESSEE COMPANY TO P ROCESS ITS APPLICATION FOR GRANT OF APPROVAL FOR DELAYED PAYMENT TO THE OV ERSEAS SUPPLIED. THE ASSESSEE COMPANY WAS NOT ABLE TO BRING ON RECORD T HE DOCUMENTS SUBMITTED IN COMPLIANCE WITH RBI LETTER TO SUBSTANTIATE ITS C LAIM AND TO PLACE ON RECORD THE RBI APPROVAL. THE ASSESSEE COMPANYS ALTERNATIVE CONTENTION BEFOR E THE AO IN REMAND REPORT PROCEEDINGS THAT IT HAD MADE EXPORT OF THE E QUIVALENT AMOUNT ON 27 TH JANUARY, 2011 TO ASSOCIATE CONCERN OF LIBER & SOLO COMPANY, NEW YORK TO ESTABLISH THE GENUINENESS OF THE CREDITOR WAS ALSO NOT ACCEPTED BY THE AO BECAUSE THE EXPORT INVOICE PRODUCED BEFORE THE LEAR NED CIT(A) WAS IN THE NAME OF RELIANCE TRADERS, HONGKONG AND THERE WAS NO EVIDENCE PRODUCED TO ESTABLISH THAT THE SAID CONCERN IS ASSOCIATE OF M/S LIBER AND SOLO COMPANY, NEW YORK AND NO PERMISSION FROM RBI TO SET OFF EXPO RT PAYMENTS AGAINST OLD IMPORT PAYMENT OUTSTANDING WERE MADE AVAILABLE BEFO RE THE AO. ITA 3074/MUM/2012 13 THE ASSESSEE COMPANYS CONTENTION THAT DUE TO THE F INANCIAL CRISIS, IT WAS NOT ABLE TO PAY THE CREDITOR IS ALSO REJECTED BY THE A. O. BECAUSE THE ASSESSEE COMPANY HAS MADE HUGE IMPORTS SUBSEQUENT TO 1991 AN D PAYMENT TO ALL OTHER PARTIES HAVE BEEN MADE. THUS, THE AO IN REMA ND REPORT PROCEEDINGS HELD THAT THE ASSESSEE COMPANY HAS NOT FILED PLAUSI BLE DOCUMENT ON WHICH IT COULD BE PROVED THAT THE LIABILITY WAS PAYABLE. WITH RESPECT TO THE STAROUGH BVBA, BELGIUM, THE ASS ESSEE COMPANY ONLY FILED COPY OF PURCHASE INVOICE DATED 6-9-2002 AND NO OTHE R DOCUMENTS WERE FILED. THE ASSESSEE COMPANY FILED AS ADDITIONAL EVIDENCES BY WAY OF FAX CORRESPONDENCE WITH THE ABOVE PARTY. HOWEVER, THE A.O. IN REMAND REPORT PROCEEDINGS WAS SURPRISED THAT THE CORRESPONDENCE W HICH WERE NOT AVAILABLE AT THE TIME OF ASSESSMENT HAD SUDDENLY APPEARED AT THE TIME OF APPELLATE PROCEEDINGS BEFORE THE LEARNED CIT(A) WHICH SHOWED THAT ASSESSEE COMPANY HAD TRIED TO MANUFACTURE EVIDENCE AND IS AN AFTERTH OUGHT . THE ASSESSEE COMPANY DID NOT FILED ANY DOCUMENT BEFORE RBI FOR T AKING PERMISSION FOR THE DELAYED PAYMENT TO THIS CREDITOR. THE IDENTITY OF T HE PERSON SIGNING THE CONFIRMATION IS NOT VERIFIABLE BECAUSE IT WAS NOT A FFIRMED BEFORE THE INDIAN CONSULATE SITUATED AT BELGIUM. IN VIEW OF THE ABOV E, THE ADDITIONS MADE BY THE A.O. IN ASSESSMENT PROCEEDINGS ARE CORRECT , WA S THE CONTENTION OF THE AO IN REMAND REPORT PROCEEDINGS. WITH RESPECT TO SH. MADARSINGH WAGHELA, THE CONFIRM ATION FILED BY THE ASSESSEE COMPANY WAS NOT SIGNED BY SH. MADARSINGH WAGHELA AND THE PAN IS INVALID AS PER AIS OF ITD APPLICATION. THE ASSE SSEE COMPANY WAS NOT ABLE TO ESTABLISH THE GENUINENESS OF THE CREDITOR AND HE NCE THE AMOUNT OF RS. 1 LAC WAS ADDED BY THE A.O. BEFORE THE LD. CIT(A) , THE ASSESSEE FILED 10 CASH VOUCHERS MADE IN THE NAME OF SH. MADARSINGH WAGHELA OF RS. 10,000/- EACH SIGNED BY SOMEBODY IN GUJARATI WITHOUT ANY ADDRESS, PAN ETC. THESE PAYMENTS WERE MADE IN FINANCIAL YEAR 2008-09, THUS THE IDENTITY OF THE ITA 3074/MUM/2012 14 PERSON SIGNING THE CASH VOUCHERS WERE NOT ESTABLISH ED BY THE ASSESSEE COMPANY. DURING THE ASSESSMENT PROCEEDINGS, THE AS SESSEE COMPANY FILED CONFIRMATION LETTER DATED 6 TH DECEMBER, 2010 IN RESPECT OF SH MADARSINGH WAGHELA WHEREBY RS. 1 LAC WAS SHOWN PAYABLE AS OUTS TANDING WHEREAS NOW THE ASSESSEE COMPANY IS FILING CASH VOUCHER OF FINA NCIAL YEAR 2008-09 THAT THE AMOUNT HAS ALREADY BEEN PAID BY THE ASSESSEE CO MPANY , WAS OBSERVED BY THE AO DURING REMAND REPORT PROCEEDINGS. NO PAN OF THE CREDITOR HAS BEEN SUBMITTED BY THE ASSESSEE COMPANY. THUS, THE ADDITION MADE BY THE A.O. IS FOUND TO BE CORRECT WAS THE CONTENTION OF T HE AO DURING REMAND REPORT PROCEEDINGS. SIMILARLY WITH RESPECT TO MR. RASHMIKANT GOPANI, TH E ASSESSEE COMPANY , IT WAS SUBMITTED THAT THE STATEMENT GIVEN BY MR. RASHM IKANT GOPANI WAS UNDER FEAR AND HE WAS SCARED. THE A.O. REJECTED TH E SAID CLAIM OF THE ASSESSEE COMPANY THAT MR RASHMIKANT GOPANI WAS SCAR ED AND WAS UNDER FEAR AND HELD THAT THE AO MADE THE ADDITION WHICH W AS CORRECT AND IN ACCORDANCE WITH LAW WAS THE CONTENTION OF THE AO IN REMAND REPORT PROCEEDINGS. WITH RESPECT TO THE ADDITION OF RS. 2 LACS MADE U/S 68 OF THE ACT RECEIVED FROM MRS. TARUNA NAVNIT PARIKH, THE ASSESSEE COMPAN Y WAS ASKED TO FILE LOAN CONFIRMATION FROM THE LENDER ALONG WITH INCOME TAX RETURN, BANK STATEMENT OF THE LENDER TO ESTABLISH THE IDENTITY, CREDIT WORTHI NESS AND GENUINENESS OF THE LOAN . ON PERUSAL OF THE BANK STATEMENT IT IS SEE N THAT THE LOAN OF RS.2,00,000/- IS ADVANCED BY MRS TARUNA N PARIKH ON 20/04/2007 AND ON THE SAME DAY CASH OF RS 2,00,000/- WAS DEPOSITED IN HER BANK ACCOUNT. THE SAID MRS. TARUNA N PARIKH HAS ONLY SALARY INCOME OF RS.20000/- PER MONTH. THE SUMMONS WERE ISSUED TO MRS. TARUNA N PARIKH U/S 131 OF THE ACT TO APPEAR BEFORE THE AO ON 02/12/2010 TO EXAMINE HER B UT SHE FAILED TO APPEAR BEFORE THE AO. ONE MORE OPPORTUNITY WAS GIVEN BUT A GAIN SHE FAILED TO APPEAR ITA 3074/MUM/2012 15 BEFORE THE AO. AS PER THE COPY OF BALANCE SHEET OF MRS. TARUNA N. PARIKH FILED BY THE ASSESSEE COMPANY DURING THE ASSESSMENT PROCE EDINGS, THE CLOSING CASH IN HAND WAS RS. 2,43,712/- WHEREAS AS PER THE CASH BOOK FILED BEFORE THE LD. CIT(A) THE CLOSING BALANCE WAS RS. 4,82,412 /-. THUS AS PER THE AO, IT WAS CLEAR THAT CASH BOOK PRODUCED BY THE ASSESSEE C OMPANY WAS FABRICATED. THE CREDITOR HAS NO SOURCE OF INCOME DURING THE YEA R FROM WHICH SHE CAN ADVANCE THE LOAN TO THE ASSESSEE COMPANY. THE ASSE SSEE COMPANY WAS GIVEN SUFFICIENT OPPORTUNITY TO ESTABLISH THE CREDITWORTH INESS WHICH THE ASSESSEE FAILED TO ESTABLISH, WAS THE OBSERVATION OF THE AO DURING REMAND REPORT PROCEEDINGS. WITH RESPECT TO THE NEW UNSECURED LOAN OF RS. 7,17, 500/- FROM SH. NAVNIT A. PARIKH, THE ASSESSEE COMPANY WAS ASKED TO FILE THE LOAN CONFIRMATION ALONG WITH BANK STATEMENT ETC. BUT FILED ONLY LOAN CONFIR MATION. THE LOAN CONFIRMATION WAS ALSO NOT CORRECT. SUMMONS WERE ISS UED U/S 131 OF THE ACT BUT THERE WAS NO COMPLIANCE BY SH. NAVNIT A PARIKH . IN THE APPELLATE PROCEEDINGS , THE ASSESSEE COMPANY HAS CLAIMED THAT OUT OF LOAN OF RS. 7,17,500/-, AN AMOUNT OF RS. 2,62,500/- WAS PROVISI ON OF DIRECTORS REMUNERATION OF EARLIER YEAR WHICH WAS CONVERTED TO LOAN ON 1ST APRIL, 2007. AS PER THE A.O., THE CLAIM OF THE ASSESSEE COMPANY WAS INCORRECT BECAUSE AS PER THE SCHEDULE OF SUNDRY CREDITOR REFLECTED IN TH E BALANCE SHEET BY THE ASSESSEE COMPANY AS ON 31 ST MARCH, 2007 THE NAME OF MR. NAVNIT A. PARIKH WAS NOT APPEARING THERE. REGARDING THE BALANCE AMOU NT OF RS. 4,55,000/- , THE ASSESSEE COMPANY SUBMITTED THAT THE SAID AMOUNT IS GIVEN BY SHRI NAVNIT A PARIKH OUT OF CASH AVAILABLE WITH HIM. IT WAS OB SERVED FROM THE BALANCE SHEET OF MR. NAVNIT A. PARIKH DURING THE ASSESSMENT PROCEEDINGS THAT CLOSING BALANCE WAS RS. 60,109/- WHEREAS AS PER THE CASH BO OK THE CLOSING BALANCE WAS RS. 39,509/-, HENCE, IT WAS OBSERVED BY THE AO THAT THE CASH BOOK FILED TO PROVE THE SOURCE OF LOAN ADVANCED TO THE ASSESSE E COMPANY WAS FABRICATED AND NOT RELIABLE. IT WAS ALSO OBSERVED THAT MR. NA VNIT A. PARIKH WAS HOLDING ITA 3074/MUM/2012 16 BANK OD ACCOUNT AND FIVE CREDIT CARDS, THUS IT WAS CLEAR THAT HIS CLAIM THAT HE DOES NOT HAVE BANK ACCOUNT DURING THAT PERIOD WA S FALSE. MR. NAVNIT A PARIKH HAS GIVEN LOAN DURING THE ASSESSMENT YEAR 20 05-06 TO THE ASSESSEE COMPANY THROUGH CROSSED CHEQUE/DD WHICH PROVES THAT THE ASSESSEE COMPANY IS GIVING WRONG INFORMATION THAT HE DOES NO T HAVE ANY BANK ACCOUNT DURING THAT PERIOD IS FALSE.THE AUDITORS HAVE ALSO CERTIFIED THAT THE LOANS WERE GIVEN BY CHEQUE /DD, THEREFORE THE ASSESSEE COMPANY IS GIVING WRONG INFORMATION THAT SH NAVNIT A PARIKH DID NOT HAVE BA NK ACCOUNT. THUS, THE CLAIM OF THE ASSESSEE COMPANY WAS NOT ACCEPTED BECA USE THE CREDITWORTHINESS OF THE CREDITOR HAS NOT BEEN ESTAB LISHED BY THEM. SIMILARLY, WITH RESPECT TO THE UNEXPLAINED EXPENDIT URE OF RS. 80,000/- FOR WHICH THE ADDITION WERE MADE U/S 69-C OF THE ACT, T HE SAME WERE MADE AFTER RECORDING THE STATEMENT OF SHRI RASHMIKANT GOPANI W HO HAD STATED THAT HE HAS RECEIVED PAYMENT IN CASH FROM THE ASSESSEE COMP ANY WHICH WAS NOT RECORDED IN THE ASSESSEES BOOKS OF ACCOUNT. THE AS SESSEE COMPANYS CLAIM THAT THE STATEMENT WAS GIVEN UNDER FEAR IS FALSE AN D THE STATEMENT HAS NOT BEEN RETRACTED BY SH RASHMIKANT GOPANI. THE ASSESS EE COMPANYS CLAIM THAT A.O. HAS NOT GIVEN OPPORTUNITY WAS ALSO FALSE BECAUSE THE ASSESSEE COMPANY WAS ASKED TO APPEAR BEFORE THE A.O. ALONG W ITH BOOKS OF ACCOUNT WHICH THE ASSESSEE COMPANY FAILED TO PRODUCE. SUMMO NS U/S 131 OF THE ACT WERE ISSUED TO TWO DIRECTORS/SHAREHODER NAMELY MR N AVNIT A PARIKH AND MRS TARUNA N PARIKH TO APPEAR BEFORE THE AO BUT THEY FA ILED TO APPEAR, IN REMAND REPORT PROCEEDINGS BEFORE THE AO. THE ASSESSEE COMPANY WAS CONFRONTED WITH THE REMAND REPORT AND ASKED TO FILE REJOINDER ON THE SAID REMAND REPORT . THE ASS ESSEE COMPANY REITERATED ITS CONTENTIONS WHICH ARE NOT REPEATED FOR SAKE OF BREV ITY. ITA 3074/MUM/2012 17 THE LEARNED CIT(A) ADMITTED THE ADDITIONAL EVIDENCE S AND DISMISSED THE APPEAL OF THE ASSESSEE COMPANY ON ALL THE GROUNDS , WHEREBY THE ADDITIONS MADE BY THE AO WAS CONFIRMED AND SUSTAINED BASED ON THE FINDINGS OF THE AO IN THE ASSESSMENT ORDERS AS WELL IN THE REMAND REPO RT SUBMITTED BY THE AO DURING REMAND REPORT PROCEEDINGS , VIDE APPELLATE O RDERS DATED 15-02-2012 PASSED BY THE LEARNED CIT(A) . 7. AGGRIEVED BY THE APPELLATE ORDERS DATED 15-02-20 12 OF THE LD. CIT(A), THE ASSESSEE COMPANY IS IN SECOND APPEAL BEFORE THE TRI BUNAL. 8. THE LD. COUNSEL FOR THE ASSESSEE COMPANY SUBMITT ED THAT THE ADDITIONS HAVE BEEN MADE U/S 41(1) OF THE ACT WITH RESPECT TO THE TWO PARTIES FROM WHOM THE ASSESSEE COMPANY IMPORTED DIAMONDS AGGREGA TING TO RS. 44,41,787/- ON THE GROUND THAT THE PAYMENTS HAVE NO T BEEN MADE TO THESE PARTIES SINCE VERY LONG PERIOD OF TIME. THE LD. CO UNSEL SUBMITTED THAT AFTER THE PASSING OF THE ORDERS OF THE A.O. AND THE LD. C IT(A) , THE ASSESSEE COMPANY HAS MADE THE PART-PAYMENT TO ONE PARTY M/S LIBOR & SOLOW CO. , NEW YORK AMOUNTING TO RS. 38,70,304/- WHICH IS EQUI VALENT TO US $ 63210.86 AFTER SEEKING APPROVAL FROM RBI FOR DELAYE D PAYMENT AS PER FEMA . THE COPIES OF THE BANK ADVICE OF VIJAYA BANK REMITT ING THE AFORE-STATED ARE PLACED ON RECORD AT PAPER BOOK PAGE 22 TO 25. PERMI SSION FROM RESERVE BANK OF INDIA TO REMIT US $ 83250.39 ON ACCOUNT OF IMPOR TS MADE DURING 1991 FROM M/S LIBOR & SOLOW CO. , NEW YORK IS ALSO PLA CED AT PAPER BOOK PAGE 26 & 27. THE LD. COUNSEL SUBMITTED THAT THERE WAS SOM E CONFUSION IN THE NAME IN THE PURCHASE BILL FOR IMPORTS WHEREBY THE NAME M ENTIONED OF THE IMPORTER WAS VIHIT GEMS P. LTD. AS ALLEGED BY THE A.O.. IN THIS REGARD THE ASSESSEE COMPANY SUBMITTED , CERTIFICATE FROM THE OFFICE OF THE REGISTRAR OF COMPANIES, MAHARASHTRA EVIDENCING THE NAME CHANGE OF THE ASSES SEE COMPANY FROM VIHIT GEMS PRIVATE LIMITED TO SUN STAR GEMS PRIV ATE LIMITED W.E.F. 29 TH DECEMBER 1999. THE ASSESSEE COMPANY HAS SUBMITTED C OPY OF CERTIFICATE TO ITA 3074/MUM/2012 18 THIS EFFECT FROM THE REGISTRAR OF COMPANIES WHICH I S PLACED ON RECORD AT PAPER BOOK PAGE 28 AND HENCE THE LD. COUNSEL SUBMITTED TH AT ONLY THE NAME OF THE COMPANY HAS CHANGED. THE LD. COUNSEL SUBMITTED THA T THE ASSESSEE COMPANY HAS NOT MADE PAYMENT TO ONE PARTY NAMELY STAROUGH B VBA, BELGIUM AS THE ASSESSEE COMPANY WAS GOING THROUGH A FINANCIAL CRUN CH. HOWEVER, THE ASSESSEE COMPANY HAD PAID US $ 40,000 AGAINST THE T OTAL BILL OF US $ 55,689/- OF SAID STAROUGH BVBA, BELGIUM AND BALANCE IS STILL PAYABLE . THE LD. COUNSEL SUBMITTED THAT ASSESSEE COMPANY HAS PLA CED ON RECORD VARIOUS CORRESPONDENCE WITH THE STAROUGH BVBA, BELGIUM WHER EBY THEY HAVE ASKED FOR THE PAYMENT ALONG WITH JAMMU & KASHMIR BANK COR RESPONDENCE WITH RESPECT TO THE PAYMENTS TO BE MADE FOR PURCHASES MA DE FROM STAROUGH BVBA, BELGIUM AND CONFIRMATION HAS ALSO BEEN PLACED ON RECORD AT PAPER BOOK PAGE 32 TO 34. THE INVOICES AND OTHER DOCUMEN TS IN CONNECTION WITH IMPORTS FROM STARAOUGH BVBA IS PLACED ON RECORD AT PAGE 29-31 OF THE PAPER BOOK FILED WITH THE TRIBUNAL. THE LD. COUNSEL SUBMI TTED THAT THE PAYMENTS HAVE TO BE MADE TO THE PARTIES FOR WHICH NEW EVIDEN CES HAVE BEEN SUBMITTED WHICH MAY BE ADMITTED. RBI APPROVAL IS PLACED AT P APER BOOK PAGE 26 TO 27 WITH RESPECT TO THE APPROVAL FOR PAYMENT TO M/S LIB OR & SOLOW CO. , NEW YORK. THE LD. COUNSEL SUBMITTED THAT THESE ADDITIO NAL EVIDENCES NOW FILED BEFORE THE TRIBUNAL ARE VITAL EVIDENCES WHICH GOES TO THE ROOT OF THE MATTER WHICH NEEDED TO BE ADMITTED IN THE INTEREST OF JUST ICE. WITH RESPECT TO AMOUNT OF RS. 1 LACS PAYABLE TO MR. MADARSINGH WAGHELA , IT WAS SUBMITTED THAT PAYMENT IS MADE TO THIS PARTY IN THE SUBSEQUENT FINANCIAL YEAR 2008-09. THE CONFIRMATION WAS FILED WITH WRONG PAN. THE SAID MR. MADARSINGH WAGHELA DIED AND PAYMENT WERE MADE TO HI S COUSIN BROTHER MR SARDAR SINGH LALUJI VAGHELA WHICH ARE PLACED IN PAP ER BOOK PAGE 36-40, ALONG WITH DEATH CERTIFICATE OF MR. MADARSINGH WAGH ELA AND AFFIDAVIT OF HIS COUSIN BROTHER MR. SARDAR SINGH LALUJI VAGHELA WHIC H ARE PLACED IN PAPER BOOK PAGE 36-38. THE AFFIDAVIT AND DEATH CERTIFICAT E ARE ADDITIONAL EVIDENCES ITA 3074/MUM/2012 19 WHICH NEED TO BE ADMITTED IN THE INTEREST OF JUSTIC E WAS THE CONTENTION OF LEARNED COUNSEL. THE COPIES OF VOUCHERS FOR MAKING CASH PAYMENTS DURING FINANCIAL YEAR 2008-09 WERE ALSO ENCLOSED IN PAPER BOOK AT PAGE 41-48 . IT WAS SUBMITTED THAT THE STATEMENT OF MR. RASHMIKANT GOPANI WAS RECORDED, HE WAS DOING JOB WORK OF POLISHING DIAMOND FOR THE ASSESSEE COMPANY. THE ADDITION OF RS 80000/- U/S 69C OF THE ACT WAS MADE BASED ON THE STATEMENT OF MR. RASHMIKANT GOPANI . THE SAID RASHMIKANT GOPA NI WAS NOT ALLOWED TO BE CROSS EXAMINED. THE AFFIDAVIT OF SAID MR. RASHMI KANT GOPANI IS NOW FILED BEFORE THE TRIBUNAL AS AN ADDITIONAL EVIDENCE. IN T HE SAID AFFIDAVIT DATED 27- 02-2015 , THE SAID RASHMIKANT GOPANI HAS CONFIRMED THAT HE HAS NOT DONE ANY WORK FOR THE ASSESSEE COMPANY AND NO CASH WAS R ECEIVED BY HIM DURING THE PREVIOUS YEAR RELEVANT TO THE INSTANT ASSESSMEN T YEAR .THE BANK STATEMENT IS PRODUCED BY THE ASSESSEE COMPANY WHICH EVIDENCES THAT THE PAYMENTS TO MR RASHMIKANT GOPANI WERE MADE THROUGH CHEQUES ON 01-01- 2010 VIDE CHEQUE NO. 145640 OF RS.55,474/- AND ON 0 8-12-2009 VIDE CHEQUE NUMBER 145633 OF RS. 35,000/- BOTH DEBITED TO THE A SSESSEE COMPANY BANK A/C NO. 495701010036056 WITH UNION BANK OF INDIA VI DHAN SABHA MARG BRANCH, MUMBAI .IT WAS SUBMITTED THAT WITH RESPECT TO LOANS RECEIVED FROM DIRECTORS/SHAREHOLDERS, THE ASSESSEE COMPANY HAS EX PLAINED THE SOURCES OF THE FUNDS BUT THE REVENUE IS ASKING TO PRODUCE SOUR CE OF SOURCE. THE LOAN CONFIRMATIONS ARE PLACED ON RECORD. THE AO SHOULD H AVE MADE ENQUIRIES IN THEIR CASES AND ADDITIONS SHOULD HAVE BEEN MADE IN THEIR HANDS BUT NOT IN THE HANDS OF THE ASSESSEE COMPANY. 9.THE LD. D.R., ON THE OTHER HAND, SUPPORTED THE OR DER OF THE LD. CIT(A). 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND AL SO PERUSED THE MATERIAL ON RECORD. WE HAVE OBSERVED THAT THE ASSESSEE COMP ANY HAS COME FORWARD WITH THE RBI APPROVAL DATED 21-1-2013 WITH RESPECT TO THE PAYMENTS MADE TO LIBER & SOLOW COMPANY NEW YORK WHICH IS EQUIVALENT TO US $63210.86 WHICH ITA 3074/MUM/2012 20 IS OBTAINED AFTER THE A.O. ORDER DATED 29-12-2010 A ND LD. CIT(A)S ORDER DATED 15-02-2012. THE RBI APPROVAL WAS GRANTED FOR TOTAL PAYABLE AMOUNT OF US $ 83,250.39. WITH RESPECT TO THE AMOUNT PAYABLE TO O NE PARTY NAMELY STAROUGH BVBA, BELGIUM IT WAS SUBMITTED THAT AS THE ASSESSEE COMPANY WAS GOING THROUGH FINANCIAL CRUNCH, PAYMENTS WERE NOT MADE TO THE SAID PARTY. HOWEVER, THE ASSESSEE COMPANY HAD PAID US $ 40,000 AGAINST THE TOTAL BILL OF US $ 55,689/- OF SAID STAROUGH BVBA, BELGIUM AND BA LANCE OF US $ 15689.00 IS STILL OUTSTANDING TO BE PAYABLE . THE LD. COUNSEL SUBMITTED THAT ASSESSEE COMPANY HAS PLACED ON RECORD VARIOUS CORRE SPONDENCE WITH THE JAMMU & KASHMIR BANK WITH RESPECT TO THE PAYMENTS T O BE MADE FOR PURCHASES MADE AGAINST WHICH OUTSTANDING LIABILITIE S ARE EXISTING AND CONFIRMATION FROM STAROUGH BVBA, BELGIUM HAS ALSO B EEN PLACED ON RECORD AT PAPER BOOK CONFIRMING THAT THE SAID AMOUNT IS DUE T O THEM WHICH ARE PLACED IN PAPER . IN OUR CONSIDERED VIEW, ALL THESE ADDITI ONAL EVIDENCES PLACED BY THE ASSESSEE COMPANY ON RECORD NEEDS TO BE ADMITTED AS ADDITIONAL EVIDENCES IN THE INTEREST OF JUSTICE AS THESE ARE VITAL EVIDENCE S TO DECIDE THE ISSUES IN THESE APPEALS BUT THESE ADDITIONAL EVIDENCES NEED EXAMINA TION AND VERIFICATION BY THE AUTHORITIES BELOW AND THE MATTER NEEDS TO BE SE T ASIDE AND RESTORED BACK TO THE FILE OF THE A.O. FOR DE NOVO DETERMINATION O F THE ISSUES ON MERITS IN THE LIGHT OF THE ADDITIONAL EVIDENCE SUBMITTED BY THE A SSESSEE COMPANY WITH RESPECT TO OUTSTANDING LIABILITIES PAYABLE TO BOTH THE OVERSEAS PARTIES IN CONNECTION WITH IMPORT OF DIAMONDS BY THE ASSESSEE COMPANY. NEEDLESS TO SAY THE A.O. SHALL PROVIDE PROPER AND SUFFICIENT OP PORTUNITY OF BEING HEARD TO THE ASSESSEE COMPANY IN ACCORDANCE WITH THE PRINCIP LES OF NATURAL JUSTICE IN ACCORDANCE WITH LAW AND SHALL ADMIT ALL RELEVANT EV IDENCES AND EXPLANATION PROVIDED BY THE ASSESSEE COMPANY IN ITS DEFENSE. WE ORDER ACCORDINGLY WITH RESPECT TO THE PAYMENT TO BE MADE TO OTHER PAR TY MR. MADARSINGH WAGHELA OF RS.1,00,000/- , THE LD. COUNSEL SUBMITTE D THAT THE PAYMENTS HAVE BEEN MADE TO THE SAID PARTY IN THE SUBSEQUENT FINAN CIAL YEAR 2008-09. ITA 3074/MUM/2012 21 EARLIER THE PAN NO. WAS FOUND INVALID BY THE A.O. , BUT NOW THE CORRECT DETAILS ARE PLACED ON FILE. THE LD. COUNSEL SUBMITT ED THAT SH. MADARSINGH N. WAGHELA DIED ON 23-09-2005 AND THE DEATH CERTIFICAT E IS NOW PLACED ON RECORD AT PAPER BOOK PAGE NO. 37 AND IT WAS SUBMITTED THAT THE ASSESSEE WAS NOT IN TOUCH WITH THE SAID PARTY. THE LD. COUNSEL SUBMITT ED THAT DUE TO THE DEATH OF SH. MADARSINGH N. VAGHELA, THE PAYMENT HAVE BEEN MA DE TO HIS RELATIVE BEING COUSIN SHRI SARDARSINGH LALUJI VAGHELA , WHER EBY AFFIDAVIT DATED 17-12- 2014 TO THIS EFFECT HAS NOW BEEN OBTAINED AND PLACE D ON RECORD CONFIRMING THAT SH SARDARSINGH LALUJI VAGHELA HAS RECEIVED RS . 1,00,000/- FROM THE ASSESSEE COMPANY IN CASH ON VARIOUS DATES WITH RESP ECT TO OLD DUES PAYABLE TO MR MADARSINGH VAGHELA. THESE ARE THE ADDITIONAL EVIDENCES PLACED ON RECORD IN ORDER TO PROVE THAT PAYMENTS HAVE BEEN MA DE TO THE SAID PARTY ALTHOUGH THE CONFIRMATIONS HAVE BEEN FILED BEFORE T HE LD. CIT(A). SINCE THESE ADDITIONAL EVIDENCES BY WAY OF AFFIDAVIT ETC. NEEDS VERIFICATION AND EXAMINATION OF THESE ADDITIONAL EVIDENCES BY THE AU THORITIES BELOW. WE ADMIT THESE ADDITIONAL EVIDENCES IN THE INTEREST OF JUSTI CE AND ACCORDINGLY SET ASIDE AND RESTORE THIS ISSUE TO THE FILE OF A.O. FOR DE N OVO RE-DETERMINATION OF THE MATTER ON MERITS IN THE LIGHT OF THESE ADDITIONAL E VIDENCES. NEEDLESS TO SAY THE A.O. SHALL PROVIDE PROPER AND SUFFICIENT OPPORTUNIT Y OF BEING HEARD TO THE ASSESSEE COMPANY IN ACCORDANCE WITH PRINCIPLES OF N ATURAL JUSTICE IN ACCORDANCE WITH LAW AND SHALL ADMIT ALL RELEVANT EV IDENCES AND EXPLANATION PROVIDED BY THE ASSESSEE COMPANY IN ITS DEFENSE. W E ORDER ACCORDINGLY. WITH RESPECT TO THE PAYMENT OF RS. 1,05,474/- ON AC COUNT OF CREDIT BALANCE OUTSTANDING IN THE NAME OF MR. RASHMIKANT GOPANI WH EREBY VIDE STATEMENT RECORDED U/S 131 OF THE ACT, HE DENIED TO HAVE RECE IVED ANY CHEQUE FROM THE ASSESSEE COMPANY. THE ASSESSEE COMPANY SUBMITTED T HE BANK STATEMENT WHEREBY AN AMOUNT OF RS. 35,000/- WAS PAID TO MR. R ASHMIKANT GOPANI ON 8 TH DECEMBER, 2009 AND AN AMOUNT OF RS. 55,474/- WAS P AID TO RASHMIKANT GOPANI THROUGH CHEQUE PAYMENTS ON 01-01-2010, DEBI TED TO UBI BANK ITA 3074/MUM/2012 22 ACCOUNT OF THE ASSESSEE COMPANY. COPY OF THE ASSES SEE COMPANYS BANK STATEMENTS WERE PLACED ON RECORD VIDE PAPER BOOK PA GE NO. 49 & 50. THE LD. COUNSEL CONTENDED THAT THE AUTHORITIES BELOW DENIED CROSS EXAMINATION OF SHRI RASHMIKANT GOPANI BY THE ASSESSEE COMPANY. TH E AFFIDAVIT FROM MR. RASHMIKANT GOPANI DATED 27-02-2015 IS NOW PLACED ON RECORD AS ADDITIONAL EVIDENCE WHEREBY HE DENIED TO HAVE WORKED FOR THE A SSESSEE COMPANY DURING THE RELEVANT PREVIOUS YEAR AND DENIED TO HAVE RECEI VED CASH FROM THE ASSESSEE COMPANY . THESE ADDITIONAL EVIDENCES ARE VITAL TO D ECIDE THE ISSUE IN THE INSTANT APPEAL AND THESE ADDITIONAL EVIDENCES NEED TO BE ADMITTED IN THE INTEREST OF JUSTICE. IN OUR CONSIDERED VIEW, THIS MATTER ALSO NEEDS TO BE SET ASIDE AND RESTORED TO THE FILE OF A.O. FOR EXAMINAT ION AND VERIFICATION OF THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE COMPANY AND ALLOWING CROSS EXAMINATION OF MR. RASHMIKANT GOPANI BY THE ASSESSE E COMPANY. NEEDLESS TO SAY THE A.O. SHALL PROVIDE PROPER AND SUFFICIENT OP PORTUNITY OF BEING HEARD TO THE ASSESSEE COMPANY IN ACCORDANCE WITH PRINCIPLES OF NATURAL JUSTICE IN ACCORDANCE WITH LAW AND SHALL ADMIT ALL RELEVANT EV IDENCES AND EXPLANATION PROVIDED BY THE ASSESSEE COMPANY IN ITS DEFENSE. WE ORDER ACCORDINGLY. WITH RESPECT TO THE LOAN RECEIVED BY THE ASSESSEE C OMPANY FROM MRS. TARUNA N PARIKH AND SH. NAVNIT A. PARIKH, DIRECTOR, WE FIN D THAT SUMMON WERE ISSUED U/S 131 OF THE ACT BUT BOTH THE AFORE-STATED SAID DIRECTORS/SHAREHOLDERS WHO HAVE GIVEN LOANS TO THE ASSESSEE COMPANY FAILED TO APPEAR BEFORE THE A.O. FOR THEIR EXAMINATION DES PITE OPPORTUNITIES GIVEN BY THE AO . THE CASH WAS DEPOSITED BY THE SAID MRS TAR UNA N PARIKH IN HER BANK ACCOUNT PRIOR TO THE ISSUE OF CHEQUE TO THE ASSESSE E COMPANY , FOR WHICH THE ASSESSEE COMPANY HAS PLACED ON RECORD THE CONFIRMAT ION, BANK STATEMENT ETC.. HOWEVER, THE CONTENTION OF THE REVENUE WAS TH AT THE PARTIES HAD NOT APPEARED BEFORE THE A.O. FOR EXAMINATION DESPITE S UMMONS ISSUED AND HENCE PROPER ENQUIRY COULD NOT BE CONDUCTED BY THE REVENU E TO ESTABLISH IDENTITY AND CREDITWORTHINESS OF THE LENDERS AND THE GENUINE NESS OF THE LOAN ITA 3074/MUM/2012 23 TRANSACTION. IN OUR CONSIDERED VIEW, THIS ISSUE IS ALSO TO BE SET ASIDE AND RESTORED TO THE FILE OF THE AO FOR DE-NOVO DETERMIN ATION ON MERITS KEEPING IN VIEW THE EVIDENCES SUBMITTED BY THE PARTY AND AFTER RECORDING OF THE STATEMENTS AND EXAMINATION OF THE LENDERS FOR WHICH DIRECTIONS ARE ISSUED TO THE ASSESSEE COMPANY TO PRODUCE THE LENDERS BEFORE THE REVENUE FOR THEIR EXAMINATION AND TO PRODUCE ALL NECESSARY EVIDENCES IN ITS SUPPORT TO SATISFY THE MANDATE OF SECTION 68 OF THE ACT TO ESTABLISH I DENTITY AND CREDITWORTHINESS OF THE LENDERS AND THE ESTABLISH G ENUINENESS OF THE LOAN TRANSACTION. NEEDLESS TO SAY THE A.O. SHALL PROVID E PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE COMPANY IN ACCORDANCE WITH PRINCIPLES OF NATURAL JUSTICE IN ACCORDANCE WITH LA W AND SHALL ADMIT ALL RELEVANT EVIDENCES AND EXPLANATION PROVIDED BY THE ASSESSEE COMPANY IN ITS DEFENSE. WE ORDER ACCORDINGLY. 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE COMPANY IN ITA N0. 3074/MUM/2012 FOR THE ASSESSMENT YEAR 2008-09 IS AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH JUNE , 2016. # $% &' 07-06-2016 ( ) SD/- SD/- (SAKTIJIT DEY) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 07-06-2016 [ ITA 3074/MUM/2012 24 .9../ R.K. R.K. R.K. R.K. , EX. SR. PS !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. : ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. : / CIT- CONCERNED, MUMBAI 5. =>( 99?@ , ?@ , $ / DR, ITAT, MUMBAI E BENCH 6. (BC D / GUARD FILE. / BY ORDER, = 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI