Habib Abdul Latif, CHENNAI V. DCIT Non Corporate Circle 10(1), CHENNAI

ITA 3207/CHNY/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2972 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 1 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 28-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B SGADEVAN
• Assessee Lawyers: M RAZZACK
• Keywords: Principle of natural justice
• Section: 40A(3); 143(3); 142(1); 234B; 205; 131; 28

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: CHENNAI . . . , ! ' # , $ #% BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ./ ITA NO.3207/CHNY/2017 & '& /ASSESSMENT YEAR: 2014-15 SHRI HABIB ABDUL LATIF, NO.16, MILLERS ROAD, KILPAUK, CHENNAI 600 010. VS. DY. COMMISSIONER OF INCOME TAX, NON CORPORATE CIRCLE-10(1), CHENNAI. [PAN: A BVPH 8737M ] ( () /APPELLANT) ( *+() /RESPONDENT) () , - / APPELLANT BY : SHRI M.RAZZACK, FCA *+() , - /RESPONDENT BY : SHRI B. SGADEVAN, JCIT . , /$ /DATE OF HEARING : 09.01.2019 01' , /$ / DATE OF PRONOUNCEMENT : 25.02.2019 / O R D E R PER INTURI RAMA RAO, ACCOUNTANT MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED A GAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) -12, CHENNAI (HEREINAFTER CALLED AS CIT(A)) DATED 31.10.2017 F OR THE ASSESSMENT YEAR (AY) 2014-15. 2. THE APPELLANT RAISED THE FOLLOWING GROUNDS OF AP PEAL: 1. FOR THAT THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS CONTRARY TO LAW, FACTS AND CIRCUMSTANC ES OF THE CASE AND AT ANY RATE IS OPPOSED TO THE PRINCIPLES OF EQUITY, NATURAL JUSTICE AND FAIR PLAY. ITA NO.3207/CHNY/2017 (AY: 2014-15) :- 2 -: 2. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ADDITION MADE ON ACCOUNT OF UNPRO VED EXPENSES IN THE FORM OF LAND FILLING AND THE RELATED LABOR EXPE NSES FOR RS.3,70,23,555/- MADE BY THE ASSESSING OFFICER. 3. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO APPRECIATE THE EVIDENCES PRODUCED BY THE APPELLA NT TO THE ASSESSING OFFICER IN THE FORM OF PURCHASE BILLS FOR LAND FILLING EXPENSES. 4. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO CONSIDER THE EVIDENCE PRODUCED BY THE APPELLANT IN THE FORM OF INDEPENDENT SURVEYOR OF LAND NAMELY KSA AGENCIES AT THE TIME OF APPEAL HEARING VIDE THE AUTHORIZED REPRESENTATIVES LETTER DATED 26/09/2017 TO PROVE THAT THE LAND LEVEL WAS INCREAS ED BY FILLING UPTO A HEIGHT OF 9 FEET. 5. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO APPRECIATE THE FACT THAT THE APPELLANT WAS NOT G IVEN THE COPY OF THE REPORT OF THE INSPECTOR WHO PURPORTEDLY VISITED THE LAND AND REPORTED THAT THERE DOES NOT APPEAR TO BE ANY FILLING OF LAN D IN THE LAST FEW YEARS AND ALSO THAT THE ENTIRE AREA SURROUNDING THIS LAND AND THE ADJOINING LANDS IS OF THE SAME LEVEL AND ALMOST 1 FOOT BELOW ROAD LEVEL TO ENABLE THE APPELLANT TO UNDERSTAND THAT THE LAND EXAMINED WAS IN FACT THE SAME LAND WHERE THE APPELLANT HAD UNDERTAKEN LAND F ILLING OR IT IS SOME OTHER LAND IS OPPOSED TO THE PRINCIPLES OF EQU ITY, NATURAL JUSTICE AND FAIR PLAY. 6. WITHOUT PREJUDICE TO THE ABOVE THE APPELLANT SUB MITS THAT: (I) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) FAILED TO ADJUDICATE THE CONTENTION OF THE APPELLANT THAT THE ASSESSING OFFICER HAS FAILED TO COMPLY WITH THE INSTRUCTIONS NO 20/20 15 DATED 29/12/2015 OF CBDT ON THE FOLLOWING: (A) NOTICES SENT TO THE APPELLANT UNDER SECTION 143 (2), 142(1) AND OTHER NOTICES DID NOT BEAR WHETHER THE ASSESSME NT IS THAT OF LIMITED OR COMPLETE SCRUTINY. (B) HAS NOT ISSUED ANY SHOW CAUSE NOTICE TO THE APP ELLANT ON THE ADDITIONS PROPOSED PRIOR TO THE COMPLETION OF ASSESSMENT. (II) THE ASSESSING OFFICER HAS FAILED TO ADHERE TO THE TIME LIMIT AS CONTEMPLATED UNDER SECTION 153(1) FOR MAKING ASSESS MENT UNDER 143(3) SINCE THE ORDER WAS POSTED FROM THE ASSESSIN G OFFICERS OFFICE ONLY ON 18/01/2017 AND RECEIVED BY THE APPELLANT ON 20/01/2017 EVEN THOUGH THE ORDER IS DATED 30/12/2016. SINCE THE APP ELLANT HAD RECEIVED EARLIER NOTICES WITH REGARD TO THIS ASSESS MENT WELL WITHIN 2 TO 3 DAYS OF DATE MENTIONED IN THE NOTICE WHEREAS THE ASSESSMENT ORDER UNDER SECTION 143(3) WAS POSTED MUCH LATER THAN THE TIME LIMIT CONTEMPLATED UNDER SECTION 153(1) MAKING IT AMPLY C LEAR THAT THE ASSESSMENT ORDER UNDER SECTION 143(3) ITSELF WAS FR AMED WELL AFTER THE STATUTORY TIME LIMIT AS PRESCRIBED UNDER SECTIO N 153(1). ITA NO.3207/CHNY/2017 (AY: 2014-15) :- 3 -: 7. THE APPELLANT OBJECTS TO THE LEVY OF INTEREST UN DER SECTION 234B AND 234C ARISING OUT OF THE ADDITION. 8. FOR THESE GROUNDS AND SUCH OTHER GROUNDS THAT MA Y BE ADDUCED BEFORE OR DURING THE HEARING OF THIS APPEAL WITH TH E LEAVE OF THE HONBLE TRIBUNAL, IT IS PRAYED THAT THE HONBLE TRI BUNAL MAY BE PLEASED TO: (A) DELETE THE DISALLOWANCE MADE ON ACCOUNT OF UNPR OVED EXPENSES IN THE FORM OF LAND FILLING AND THE RELATE D LABOR EXPENSES FOR RS.3,70,23,555/- MADE BY THE ASSESSING OFFICER. (B) SUCH OTHER ORDERS MAY BE PASSED AS THIS RESPECT FUL AUTHORITY MAY DEEM FIT. 3. THE BRIEF FACTS OF THE CASE ARE AS UNDER: THE APPELLANT IS AN INDIVIDUAL DERIVING INCOME UND ER THE BUSINESS OF PROPERTY DEVELOPMENT. THE RETURN OF INCOME FOR T HE AY 2014-15 WAS FILED ON 31.12.2014 DECLARING AT A TOTAL INCOME OF RS. 1,94,79,050/-. AGAINST THE SAID RETURN OF INCOME, THE ASSESSMENT W AS COMPLETED BY THE ACIT, NON CORPORATE CIRCLE-10(1), CHENNAI VIDE ORDE R DATED 30.12.2016 PASSED U/S. 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) AT A TOTAL INCOME OF RS. 5,65,02,610/-. THE DISPARITY B ETWEEN THE RETURNED INCOME AND ASSESSED INCOME IS ON ACCOUNT OF DISALLO WANCE OF THE EXPENDITURE OF RS. 3,70,23,555/- CLAIMED AGAINST SA LE PROCEEDS OF LAND. THE BREAKUP OF THE CLAIM OF THE EXPENDITURE IS AS F OLLOWS: 1. LAND FILLING EXPENSES RS. 2,99,00,000/- 2. LABOUR WAGES PAID RS. 69,66,000/- 3. SITE GENERAL EXPENSES RS. 1,57,555/- ----------------------- RS. 3,70,23,555/- ----------------------- ITA NO.3207/CHNY/2017 (AY: 2014-15) :- 4 -: 4. THE BACKGROUND FACTS OF THE CASE ARE AS UNDER: THE APPELLANT PURCHASED VACANT LAND ADMEASURING 72 CENTS OUT OF 83 CENTS IN S. NO.190/16B(PART) AND 72 CENTS IN S. NO.190/16A, AND ALL TOTALLY MEASURING TO AN EXTENT OF 1 ACRE AND 44 CEN TS SITUATED AT NO.41, PUDUPAKKAM VILLAGE, TIRUPORURU TALUK, KANCHEEPURAM DISTRICT AND AGAIN PURCHASED A LAND MEASURING AN EXTENT OF 2 CENTS IN S. NO.193/1, 40 CENTS IN S. NO.193/4, 25 CENTS IN S. NO.193/5, 28 C ENTS IN S. NO.193/3 AND 33 CENTS IN S. NO.193/7A AND IN ALL TOTALLY ADM EASURING TO AN EXTENT OF 1 ACRE AND 53 CENTS, SITUATED AT NO.41, PUDUPAKK AM VILLAGE, TIRUPORUR TALUK, KANCHEEPURAM DISTRICT FOR A CONSIDERATION OF RS. 8.50 LAKHS ON 05.04.2005. THESE LANDS WERE SOLD TO M/S. SYLVANUS BUILDERS & DEVELOPERS LTD. ON 20.08.2013 FOR A CONSIDERATION O F RS. 4,79,25,000/-. AGAINST THE SAID SALE CONSIDERATION AN AMOUNT OF RS . 3,70,23,555/- WAS CLAIMED AS A DEDUCTION OUT OF WHICH RS. 2,99,00,000 /- WAS CLAIMED AS A LAND FILLING EXPENSES. IT IS CLAIMED THAT THE ASSE SSEE MADE A LAND FILLING OF 9200 LORRY LOADS OF 200 CUBIC FEET EACH TO MAKE UP TO 2 FEET ABOVE THE ROAD LEVEL. IT WAS FURTHER STATED THAT THE LEVEL O F LAND IS 10 FEET BELOW THE ROAD LEVEL. THE APPELLANT ALSO CLAIMED LABOUR CHARG ES OF RS. 69,66,000/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AP PELLANT WAS ASKED TO FILE THE EVIDENCE IN SUPPORT OF THE ABOVE EXPEND ITURE BY THE AO. THE APPELLANT HAD SUBMITTED THE FOLLOWING EVIDENCE 1) C OPIES OF BILLS ISSUED BY THE M/S. AVOOR ENPTERPRISES 2) COPY OF THE LEDGE R ACCOUNT OF LAND ITA NO.3207/CHNY/2017 (AY: 2014-15) :- 5 -: DEVELOPMENT EXPENSES AND 3) LEDGER ACCOUNT OF THE L ABOUR CHARGES. BASED ON THE ABOVE INFORMATION, THE AO HAD ATTEMPTE D TO CROSS VERIFY WITH M/S. AVOOR ENTERPRISES, WHO IS STATED TO BE SU PPLIER OF THE FILLING MATERIAL. AS A PART OF THIS EXERCISE, THE INSPECTOR OF HIS OFFICE WAS DEPUTED TO VERIFY THE WHEREABOUTS OF M/S. AVOOR ENT ERPRISES AND ALSO ATTEMPTED TO CONTACT M/S. AVOOR ENTERPRISES OVER TE LEPHONE AND EMAIL. IT IS STATED BY THE ASSESSING OFFICER THAT THE INSPECT OR VIDE REPORT DATED 28.12.2016 THAT THE SAID M/S. AVOOR ENTERPRISES DOE S NOT EXIST IN THE GIVEN ADDRESS AND THE ATTEMPTS TO CONTACT ON TELEPH ONE AND EMAIL ALSO PROVED TO BE FUTILE AND FINALLY, THE AO HAD CALLED UPON THE APPELLANT TO PRODUCE THE M/S. AVOOR ENTERPRISES ON 28.12.2016 ON BEFORE HIM. IN RESPONSE TO THIS, THE APPELLANT HAD STATED VIDE HIS LETTER DATED 28.12.2016 THAT SINCE THE PROPRIETOR OF M/S. AVOOR ENTERPRISES WAS ON PILGRIMAGE TO MECCA AND HE WAS NOT AVAILABLE TO RES POND TO SUMMONS U/S. 131 OF THE ACT AND IT WAS FURTHER SUBMITTED TH AT M/S. AVOOR ENTERPRISES, THE PERSON WHO HAD SUPPLIED THE FILLIN G MATERIAL TO THE ASSESSEE BY ENGAGING THE LORRY OWNERS THROUGH HIS K NOWN SOURCES. THE PAYMENTS HAVE BEEN MADE ON REGULAR BASIS BY ONE MR. IMTIAZ ABDUL LATIF, WHO IS BROTHER OF THE APPELLANT AND MANAGING SITE. THE AMOUNTS CLAIMED TO HAVE BEEN PAID BY THE APPELLANT TO THE S AID MR. IMTIAZ ABDUL LATIF THROUGH ACCOUNT PAYEE CHEQUE. IT IS FURTHER STATED THAT FOR EACH LOAD OF LAND FILLING MATERIAL, THE LORRY OWNER WAS PAID AT RS. 3,000/- AND ITA NO.3207/CHNY/2017 (AY: 2014-15) :- 6 -: M/S. AVOOR ENTERPRISES WAS PAID RS. 250/- AS COMMIS SION FOR SECURING THE LORRIES. IT IS FURTHER STATED THAT BECAUSE OF THIS LAND FILLING ONLY, THE LAND COULD FETCH CONSIDERATION OF RS. 4.8 CRORES AS AGAINST PURCHASE PRICE OF RS. 8.5 LAKHS IN THE YEAR 2005. THE ASSES SING OFFICER DISALLOWED LABOUR CHARGES OF RS. 69,66,000/- ON THE GROUND THA T THE LABOUR CHARGES WERE PAID IN CASH. THE AO HAD DISALLOWED THE ENTIR E CLAIM OF THE EXPENDITURE DOUBTING THE GENUINENESS OF THE EXPENDI TURE. 5. BEING AGGRIEVED BY THE ABOVE ADDITIONS, AN APPEA L WAS PREFERRED BEFORE LD. CIT(A), WHO VIDE IMPUGNED ORDER CONFIRME D THE ACTION OF THE AO CITING THAT THE APPELLANT HAD FAILED TO SUBSTANT IATE THE GENUINENESS OF THE EXPENDITURE AND THE ENTIRE LABOUR CHARGES WERE INCURRED IN CASH AND THERE WAS NO AGREEMENT TO INCUR THIS EXPENDITURE. BEING AGGRIEVED, THE APPELLANT IS IN APPEAL BEFORE US IN THE PRESENT APP EAL. 6. THE LD. AUTHORIZED REPRESENTATIVE SUBMITTED THAT THE LAND FILLING CHARGES AND THE LABOUR CHARGES WERE INCURRED AFTER SALE DEED WAS REGISTERED ON 28.08.2013. HE FURTHER STATED THAT TH ERE WAS A WRITTEN CORRESPONDENCE BETWEEN THE ASSESSEE AND THE BUYER A ND ALSO PLACED BEFORE US THE COPIES OF THE CORRESPONDENCE THE APPE LLANT HAD WITH THE BUYER AT PAGE NO.95 & 96. HE FURTHER SUBMITTED THA T MERELY BECAUSE, THE DEPARTMENT HAD FAILED TO CONTACT THE SUPPLIER O F THE FILLING MATERIAL DOES NOT LEAD TO CONCLUSION THAT SUPPLIER DOES NOT EXIST. HE FURTHER ITA NO.3207/CHNY/2017 (AY: 2014-15) :- 7 -: SUBMITTED THAT THE INSPECTOR OF THE DEPARTMENT HAD NOT IDENTIFIED THE PROPERTY PROPERLY AND THE COPY OF THE INSPECTOR REP ORT WAS NEVER FURNISHED TO THE ASSESSEE IN ORDER TO ENABLE TO REB UT THE FINDINGS OF THE INSPECTOR. FINALLY, HE SUBMITTED THAT THE GENUINEN ESS OF THE EXPENDITURE CANNOT BE QUESTIONED MERELY ON THE GROUND THAT THE EXPENDITURE CONSTITUTES A MAJOR PART OF THE SALE CONSIDERATION IGNORING THE FACT THAT THE PROPERTY, WHICH WAS SOLD FOR A CONSIDERATION OF RS. 4.9 CRORES WAS BOUGHT ONLY FOR A SUM OF RS. 8.5 LAKHS IN THE YEAR 2005. THE VERY FACT IS THAT THIS PROPERTY HAD FETCHED RS. 4.9 CRORES IN TH E YEAR 2013 ALSO SUPPORTS THE STAND OF THE ASSESSEE AND NO ADDITION CAN BE MADE ON THE MERE SURMISES AND PRESUMPTIONS. HE ALSO PLACED RELI ANCE ON THE VARIOUS DECISIONS OF CO-ORDINATE BENCHES OF THE TRIBUNAL IN THE CASE OF RP DHARMALINGAM V. DY. CIT IN ITA NO.872/MDS/2011 (CHN Y.), RAJESH KRISHNAKUMAR GOYAL V. ACIT IN ITA NO.1472/PN/2013 ( PUNE) AND INTERTOLL ICS INDIA P. LTD. V. ITO IN ITA NO.7700/M UM/2010 (MUM.). ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTAT IVE HAD PLACED RELIANCE ON THE ORDERS OF LOWER AUTHORITIES AND PLE ADED FOR REMAND TO THE AO FOR FRESH INVESTIGATION INTO THE CASE. 7. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE M ATERIAL ON RECORD. THE ISSUE IN THE PRESENT APPEAL RELATES TO THE ALLOWABILITY OF THE EXPENDITURE CLAIMED AGAINST THE SALE CONSIDERATION OF THE PROPERTY SOLD. THE EXPENDITURE WAS STATED TO HAVE BEEN INCURRED ON FILLING THE LAND WITH ITA NO.3207/CHNY/2017 (AY: 2014-15) :- 8 -: SAND AND VARIOUS MATERIAL ETC. THE APPELLANT HAD FI LED THE PRIMARY DETAILS SUCH AS MODE OF PAYMENT TO WHOM IT IS PAID AND THE NATURE OF THE TRANSACTION. THE AO HAD DOUBTED THE GENUINENESS OF THE EXPENDITURE PRIMARILY ON THE GROUND THAT THE EXPENDITURE CONSTI TUTES ABOUT 60% OF THE TOTAL SALE CONSIDERATION. THIS IN OUR CONSIDERED O PINION, NO DOUBT CAN TRIGGER AN ENQUIRY BY THE AO BUT, THIS FACT CANNOT LEAD TO ANY CONCLUSION THAT THE EXPENDITURE IS NOT GENUINE IN THE LIGHT OF THE FACT THAT THE PROPERTY, WHICH WAS BOUGHT JUST IN THE YEAR 2005 FO R A CONSIDERATION OF RS. 8.5 LAKH, WAS SOLD FOR RS. 4.9 CRORES IN THE YE AR 2013. THIS WOULD CERTAINLY SUGGEST THAT SOME LAND DEVELOPMENT HAD CE RTAINLY TAKEN PLACE. THE APPELLANT HAD DISCHARGED THE ONUS OF PROVING TH E CLAM BY PLACING BEFORE THE AO ALL THE RELEVANT FACTS, WHICH ARE IN EXCLUSIVE KNOWLEDGE OF THE ASSESSEE BY PLACING BEFORE HIM LEDGER EXTRACT A ND DETAILS OF THE SUPPLIER OF LAND AND AS TO HOW THE EXPENDITURE IS I NCURRED. THE FACT THAT THE SUPPLIER OF FILLING MATERIAL I.E., M/S. AVOOR E NTERPRISES COULD NOT BE FOUND AT THE GIVEN ADDRESS CANNOT BE REASON TO DOUB T THE GENUINENESS OF THE EXPENDITURE, INASMUCH AS, THE AO HAD ATTEMPTED TO VERIFY THE WHEREABOUTS AFTER THE GAP OF THE THREE TO FOUR YEAR S. THE APPELLANT ON HIS PART HAD SUBMITTED THAT THE PROPRIETOR OF THE M/S. AVOOR ENTERPRISES WAS ON THE PILGRIMAGE TO MECCA AND HE ALSO UNDERTAKEN T O PRODUCE BEFORE THE AO ON HIS RETURN. FROM THE PARA 3.5.6 OF THE A SSESSMENT ORDER, IT IS CLEAR THAT THE AO DIRECTED THE APPELLANT TO PRODUCE M/S. AVOOR ITA NO.3207/CHNY/2017 (AY: 2014-15) :- 9 -: ENTERPRISES ON 28.12.2016 ON WHICH DATE, IT IS STAT ED THAT THE SAID PROPRIETOR OF THE M/S. AVOOR ENTERPRISES WAS ON PIL GRIMAGE TO MECCA AND THE ASSESSMENT CAME TO BE COMPLETED ON 30.12.2016. THUS, THERE WAS NO SUFFICIENT OPPORTUNITY WAS GIVEN TO PRODUCE THE PROPRIETOR OF M/S. AVOOR ENTERPRISES BEFORE THE AO. FURTHER, THE APPE LLANT HAD CLEARLY STATED THAT THE PAYMENTS WERE MADE ON BEHALF OF THE COMPANY BY ONE MR. IMTIAZ ABDUL LATIF, WHO IS THE BROTHER OF THE A PPELLANT AND THE AO HAD NOT CHOSEN TO EXAMINE THE SAID MR. IMTIAZ ABDUL LAT IF. THEREFORE, IT CANNOT BE SAID THAT THE APPELLANT HAD FAILED TO SUB STANTIATE THE CLAIM BEFORE THE AO. IT IS CLEAR CASE OF FAILURE OF THE ASSESSING OFFICER CAUSE NECESSARY INQUIRIES AND INVESTIGATION. THE AO WITHO UT CAUSING NECESSARY ENQUIRES HAD HAD PROCEEDED WITH FRAMING THE ASSESSMENT ORDER BY DISALLOWING THE EXPENDITURE ON SURMISES AND PRESUMP TIONS. AS REGARDS THE DISALLOWANCE OF THE LABOUR CHARGES AND THE NATU RE OF THE EXPENDITURE IS THAT PAYMENT HAS BEEN MADE ONLY IN CASH IT IS NO T THE CASE OF THE AO THAT PROVISIONS OF S. 40A(3) OF THE ACT CAN BE INVO KED IN THE FACTS OF THE PRESENT CASE. THEREFORE, THE DISALLOWANCE OF LABOU R PAYMENT CANNOT BE SUSTAINED. THE LD. CIT(A) ALSO HAD PROCEEDED ON THE PRESUMPTIONS AND ASSUMPTIONS WITHOUT EXAMINING WHETHER THERE WAS A S UFFICIENT OPPORTUNITY WAS GIVEN TO THE APPELLANT TO REBUT THE EVIDENCE GATHERED BY THE AO, IF ANY. THUS, IN OUR CONSIDERED OPINION, T HE ADDITIONS WERE MADE BY THE AO ONLY BASED ON THE PRESUMPTIONS AND SURMIS ES AND SUSPICIOUS. ITA NO.3207/CHNY/2017 (AY: 2014-15) :- 10 -: IT IS A SETTLED PRINCIPLE OF LAW THAT THE ADDITION CANNOT BE MADE ON MERE SUSPICION. THE SUSPICION HOWEVER STRONG CANNOT TA KE THE PLACE OF PROOF. THE PLEA OF THE LD. DR FOR REMAND TO THE AO CANNOT BE ACCEPTED, AS IT IS ALSO A SETTLED PRINCIPLE OF LAW THAT NO MATTER CAN BE REMANDED IN ORDER TO IMPROVE THE CASE OF EITHER PARTY TO THE CASE. IN T HIS CONNECTION, RELIANCE CAN BE PLACED ON THE DECISION OF CO-ORDINATE BENCH OF BANGALORE TRIBUNAL IN THE CASE OF ITO V. SAFRAN ENGINEERING SERVICES IN IT(TP)A NO.451/BANG/2015 DATED 20.11.2017 (BANG.) , WHEREIN IT WAS HELD AS FOLLOWS: 11. NOW, IN THE PRESENT CASE, ASSESSEE-COMPANY HAD NOT DISCHARGED THE ONUS OF PROVING THE RECEIPT OF SERVICES BEFORE LOWE R AUTHORITIES. DESPITE OPPORTUNITIES GIVEN TO THE ASSESSEE-COMPANY, NO ATT EMPT WAS MADE BY THE ASSESSEE-COMPANY TO LEAD NECESSARY EVIDENCE IN SUPPORT OF RECEIPT OF ACTUAL SERVICES FROM THE AE. THE SUBMISSION OF T HE ASSESSEE-COMPANY THAT AN OPPORTUNITY MAY BE GRANTED TO THE ASSESSEE- COMPANY TO DISCHARGE ONUS, CANNOT BE ACCEPTED BECAUSE IT IS SE TTLED PRINCIPLE OF LAW THAT THE ASSESSEE-COMPANY CANNOT BE ACCEPTED, BECAU SE IT IS SETTLED PRINCIPLE OF LAW THAT THE ASSESSEE-COMPANY CANNOT B E GIVEN A SECOND INNINGS TO MAKE GOOD ITS CASE. RELIANCE CAN BE PLAC ED ON THE FOLLOWING DECISION OF THE ITAT: I. ASSTT. CIT V. ANIMA INVESTMENT LTD.[2000] 73 ITD 12 5 (DELHI) (TM) ; II. ASSTT. CIT V. ARUNODOI APARTMENTS (P.) LTD. [2002] 123 TAXMAN 48 (GAUHATI) THE COURTS HAVE HELD THAT APPEALS ARE NOT TO BE DEC IDED FOR GIVING 'ONE MORE INNINGS' TO THE LOWER AUTHORITIES IN THE APPEL LATE JURISDICTION. I. RAJESH BABUBHAI DAMANIA V. CIT[2001] 251 ITR 541/[2002] 122 TAXMAN 614 (GUJ.) II. CIT V. HARIKISHAN JETHALAL PATEL[1987] 168 ITR 472/ 33 TAXMAN 217 (GUJ.) REMAND NOT FOR THE BENEFIT OF THE PARTY SEEKING IT TO FILL UP GAPS. EVEN THE HON'BLE JURISDICTION HIGH COURT IN THE CAS E OF KARNATAKA WAKF BOARD V. STATE OF KARNATAKA, REPORTED IN AIR 1 996 KAR.55 AT PAGES 63 & 64 HELD AS UNDER: 'WHERE THE PARTY HAD AN OPPORTUNITY OF ADDUCING EVI DENCE IN THE CASE BUT WITH OPEN EYES FAILED TO ADDUCE THAT EVIDE NCE, THE CASE SHOULD ITA NO.3207/CHNY/2017 (AY: 2014-15) :- 11 -: NOT BE REMANDED TO GIVE A SECOND CHANCE TO THE PART Y TO ADDUCE THAT EVIDENCE. THE POLICY OF THE LAW IS THAT ONCE THAT M ATTER HAS BEEN FAIRLY TRIED BETWEEN THE PARTIES, IT SHOULD NOT, EXCEPT IN SPECIAL CIRCUMSTANCES, BE REOPENED AND RETRIEVED. IN A RECENT DECISION THE IR LORDSHIPS OF THE SUPREME COURT LAID DOWN THAT POWER TO ORDER RETRIAL AFTER REMAND, WHERE THERE HAD ALREADY BEEN A TRIAL ON EVIDENCE BEFORE T HE COURT OF FIRST INSTANCE, CANNOT BE EXERCISED MERELY BECAUSE THE AP PELLATE COURT IS OF THE VIEW THAT THE PARTIES WHO COULD LEAD BETTER EVI DENCE IN THE COURTS OF FIRST INSTANCE HAVE FAILED TO DO SO.' THE HON'BLE TRIBUNAL, DELHI BENCH IN THE CASE OF ZU ARI LEASING & FINANCE CORPN. LTD. V. ITO[2008] 112 ITD 205 (TM) , FOLLOWING THE CASE- LAWS REFERRED TO ABOVE HELD THAT THE TRIBUNAL SHOUL D NOT REMAND BACK TO THE FILE OF THE AO IN ORDER TO GIVE A SECOND INNING S TO THE LITIGANT. THEREFORE, FOLLOWING THE PRINCIPLES ENUNCIATED IN T HE ABOVE DECISION, WE ARE UNABLE TO REMAND THE PRESENT ASSESSMENT ORDER T O THE FILE OF THE AO FOR DE NOVO EXAMINATION AS NO CASE WAS MADE OUT BY THE ASSESSEE-FIRM THAT IT WAS PREVENTED BY SUFFICIENT REASONABLE CAUS E FROM FILING NECESSARY EVIDENCE IN SUPPORT OF RECEIPT OF ACTUAL SERVICES F ROM THE AE. SIMPLY BECAUSE IN EARLIER YEARS THE ISSUE WAS REMANDED BAC K TO LOWER AUTHORITIES, REMAND CANNOT BE ORDERED IN THE PRESEN T YEAR WITHOUT VALID REASON IN THE LIGHT OF THE DECISIONS CITED SUPRA. N EEDLESS TO MENTION THAT EACH YEAR IS AN INDEPENDENT AND SEPARATE ASSESSMENT YEAR AND THE PRINCIPLE OF RES-JUDICATA IS NOT APPLICABLE. IT MAY BE MENTIONED HERE THAT IN THE EARLIER ASSESSMENT YEAR IN THE ASSESSEE'S OW N CASE, THIS ISSUE WAS DECIDED AGAINST THE APPELLANT. HENCE, THE APPEAL IS DISMISSED. 8. IN THE LIGHT OF THE ABOVE DISCUSSION, WE ARE OF THE CONSIDERED OPINION THAT THE AO HAD PASSED THE ASSESSMENT ORDER IN FLAGRANT VIOLATION OF PRINCIPLE OF NATURAL JUSTICE TO FURNIS H THE COPIES OF THE REPORT OF THE INSPECTOR OF THE DEPARTMENT AND NO SUFFICIENT O PPORTUNITY WAS GIVEN TO THE APPELLANT TO PRODUCE THE PROPRIETOR OF M/S. AVOOR ENTERPRISES ETC. THE ASSESSMENT WAS MADE MERELY BASED ON SURMISES AN D PRESUMPTIONS. KEEPING IN VIEW OF THE ABOVE DISCUSS ION, WE ARE UNABLE TO SUSTAIN THE ADDITIONS AND THEREFORE, WE DIRECT T HE AO TO DELETE THE ADDITIONS. ITA NO.3207/CHNY/2017 (AY: 2014-15) :- 12 -: 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THE 25 TH DAY OF FEBRUARY, 2019 IN CHENNAI. SD/- SD/- ( . . . ) (N.R.S. GANESAN) /JUDICIAL MEMBER ( ! ' # ) (INTURI RAMA RAO) $ /ACCOUNTANT MEMBER /CHENNAI, 2 /DATED: 25 TH FEBRUARY, 2019. EDN, SR. P.S , */34 54'/ /COPY TO: 1. () /APPELLANT 4. . 6/ /CIT 2. *+() /RESPONDENT 5. 47 */ /DR 3. . 6/ ( )/CIT(A) 6. 8& 9 /GF