NextWave India (P) Ltd., New Delhi V. ITO, New Delhi

ITA 3304/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58516 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 13-01-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 21-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R S NEGI
• Assessee Lawyers: NIRAJ JAIN P K MISHRA
• Keywords: Unexplained cash credit; Opportunity of being heard; Accommodation entries; Assessment record
• Section: 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI RAJPAL YADAV, JUDICIAL MEMBER ITA NO.2983/DEL/2011 ASSTT. YEAR: 2002-03 ITA NO.2984/DEL/2011 ASSTT. YEAR: 2003-04 ITA NO.2985/DEL/2011 ASSTT. YEAR: 2005-06 NEXTWAVE INDIA (AOP), VS INCOME T AX OFFICER, 35, VRINDAVAN APARTMENTS, WARD 3 6(3), 110, INDRAPRASTHA EXTENSION, NEW DELHI. NEW DELHI. (PAN AAAAN6288L) (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI NIRAJ JAIN, P.K. MISHRA RESPONDENT BY: SHRI R.S. NEGI, SR.DR ITA NO.3303/DEL/2011 ASSTT. YEAR: 2002-03 ITA NO.3304/DEL/2011 ASSTT. YEAR: 2003-04 ITA NO.1196/DEL/2011 ASSTT. YEAR: 2005-06 NEXTWAVE INDIA (P) LTD., VS INCOM E TAX OFFICER, C/O RAJ KUMAR & ASSOCIATES, WARD 1 3(2), CHARTERED ACCOUNTANTS, NEW DELHI. 4435/7, ANSARI ROAD, DARYA GANJ, NEW DELHI-110002 (PAN NO. AAACN4361N) (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI R.K. GUPTA RESPONDENT BY: SHRI R.S. NEGI, SR.DR 2 O R D E R PER BENCH THE ASSESSEES APPEALS, NAMELY IN ITA NO. 3303, 33 04 AND 1196/DEL/2011, FILED BY NEXTWAVE INDIA (P) LTD., AR E DIRECTED AGAINST THE ORDER OF CIT(A)-XVI. NEW DELHI. THE REMAINING THRE E APPEALS IN ITA NO. 2983, 2984 AND 2985/D/2011 IN THE CASE OF NEXTWAVE INDIA (AOP), ARE DIRECTED AGAINST THE ORDER OF CIT(A)-XXVII, NEW DEL HI. SINCE COMMON ISSUES ARE INVOLVED, ALL THESE APPEALS ARE DISPOSED OF BY THIS COMMON ORDER. 2. IN THE CASE OF NEXTWAVE INDIA (P) LTD., THE ASSE SSEE HAS RAISED COMMON GROUNDS FOR ALL THE THREE YEARS. THEREFORE, FOR THE SAKE OF CONVENIENCE, WE REPRODUCE HEREINBELOW THE GROUNDS F OR AY 2002-03:- 1. THAT UNDER THE FACTS AND CIRCUMSTANCES, B OTH THE LOWER AUTHORITIES ERRED IN LAW AND ON MERITS IN MAKING AN D SUSTAINING ADDITION OF RS.74,04,000/- AS INCOME FRO M OTHER SOURCES FOR THE CREDITS APPEARING IN THE BANK ACCOU NT OF STATE BANK OF SAURASHTRA, NOT BELONGING TO THE ASSE SSEE AND FURTHER ERRED IN MAKING THE SAID ADDITION ON PROTEC TIVE BASIS . 2. THAT UNDER THE FACTS AND CIRCUMSTANCES, THE LD. CIT (A) ERRED IN LAW AND ON FACTS IN INVOKING PROVISIONS OF SEC. 251 FOR MAKING ENHANCEMENT AND THAT TOO ON PROTECTIVE BASIS . THIS ACT OF THE LD. CIT(A) IS WITHOUT JURISDICTION AND UNWARRANTED. 3. THAT WITHOUT PREJUDICE, NO PROTECTIVE ADDITIONS CAN BE MADE WHILE EXERCISING THE POWERS U/S 251 OF THE ACT. 3 4. THAT WITHOUT PREJUDICE, UNDER THE FACTS AND CIRCUMS TANCES, THE LD. CIT(A) GROSSLY ERRED IN LAW AS WELL AS ON M ERITS IN MAKING ENHANCEMENT OF RS. 27,480/- ON PROTECTIVE BA SIS FOR CREDITS IN BANK A/C NO.1552 WITH BANK OF BARODA, PU SA ROAD, NEW DELHI. 5. THAT WITHOUT PREJUDICE UNDER THE FACTS AND CIRCUMST ANCES, THE LD. CIT(A) GROSSLY ERRED IN LAW AS WELL AS ON M ERITS IN MAKING ENHANCEMENT OF RS. 3,90,000/- ON PROTECTIVE BASIS FOR CREDITS IN STATE BANK OF SAURASHTRA, PATPARGANJ , DELHI BEING ON ACCOUNT OF TOTALING ERROR IN CALCULATING T OTAL CREDITS IN SAID BANK ACCOUNT TO THE EXTENT OF RS.3, 90,000/-. 6. THAT UNDER THE FACTS AND CIRCUMSTANCES, PROCEEDINGS U/S 147/148 ARE UNWARRANTED AND UNSUSTAINABLE IN LAW AS WELL AS ON MERITS. 7. THAT UNDER THE FACTS AND CIRCUMSTANCES, NO INTEREST U/S 234A/B/C SHOULD HAVE BEEN CHARGED. WITHOUT PREJUDI CE, IN ANY CASE, THE CALCULATIONS ARE EXCESSIVE AND ERRONE OUS. IN OTHER YEARS, SIMILAR GROUNDS HAVE BEEN RAISED WI TH MODIFICATION IN THE AMOUNT OF ADDITION. 3. IN THE CASE OF NEXTWAVE INDIA (AOP), NEW DELHI A LSO, COMMON GROUNDS ARE RAISED. THEREFORE, WE REPRODUCE HEREIN BELOW THE GROUNDS RAISED FOR AY 2002-03 IN ITA NO. 2983/DEL/2011:- THAT THE LD. CIT(A) HAS ERRED IN SUSTAINING THE AD DITION OF RS.76,71,480/- MADE U/S 68 OF THE INCOME TAX ACT TREATING THE ENTIRE RECEIPTS SHOWN ON THE CREDIT SIDE OF THE BAN KS AS UNEXPLAINED INCOME IGNORING ALTOGETHER THE DETAILS AND EVIDENCES AVAILABLE ON RECORD EXPLAINING THE DEPOSITS MADE IN THE BANK ACCOUNTS. 4 1(B) THAT THE LD. CIT(A) HAS ERRED IN IGNORING T HE FACT BROUGHT TO HIS NOTICE THAT THE SOURCE OF DEPOSITS IN THE BANK ACCOUNTS WERE EXPLAINED BEFORE THE LD. AO AND THAT ALL THE NECES SARY EVIDENCES IN THAT REGARD WERE ALREADY FILED ON RECORD WHICH HAVE NOT BEEN CONTROVERTED BY THE LEARNED AO. 1(C) THAT THE LD. CIT(A) HAS ERRED IN IGNORING TH E FACT BROUGHT TO HIS NOTICE THAT THE LD. AO HAD CONDUCTED INDEPENDEN T ENQUIRIES FROM THE SOURCES FROM WHICH THE DEPOSITS IN THE BAN K ACCOUNTS EMANATED AND THAT THE LEARNED AO HAS COMPLETELY BRU SHED ASIDE THE RESULTS OF THESE ENQUIRIES. THE SAID FACT WAS IGNORED BY THE LD. CIT(A) DESPITE HAVING EXAMINED THE RECORDS OF THE L D. AO IN THE CASE OF THE APPELLANT, AFTER CALLING FOR THE SAME F ROM THE OFFICE OF THE LD. AO. 1(D) THAT THE LD. CIT(A) HAS ERRED IN IGNORING THE EVIDENCES AVAILABLE ON RECORD AND GIVING A FINDING THAT THE TRANSACTIONS STATED TO BE EXPLAINED ARE OUTSIDE THE BOOKS OF ACC OUNT PER SE AND THEREFORE HAVE TO BE BROUGHT TO TAX AS UNEXPLAINED CASH CREDITS. 2. THAT THE LEARNED CIT(A) HAS ERRED IN SUSTAINING THE DISALLOWANCE OF EXPENSES ON ACCOUNT OF BANK CHARGES RS.2,065/- ON THE GROUND THAT NO WORTHWHILE BUSINES S ACTIVITY HAS BEEN UNDERTAKEN IN A SYSTEMATIC MANNER AND THER EFORE NOT ALLOWING THE EXPENDITURE AS CLAIMED IN THE PROFIT A ND LOSS ACCOUNT FILED BY THE APPELLANT. 3. THAT THE LD. CIT(A) HAS ERRED IN SUSTAINING THE DIS ALLOWANCE OF EXPENSES ON ACCOUNT OF INTEREST OF RS.1,53,822/- ON THE GROUND THAT NO WORTHWHILE BUSINESS ACTIVITY HAS BEEN UNDER TAKEN IN A SYSTEMATIC MANNER AND THEREFORE NOT ALLOWING THE EX PENDITURE AS CLAIMED IN THE PROFIT AND LOSS ACCOUNT FILED BY THE APPELLANT. 4. THAT THE LD. CIT(A) HAS ERRED IN NOT ALLOWING CREDI T FOR TDS AMOUNTING TO RS.52,214/- ON INTEREST INCOME OF RS.2 ,55,952/- ON THE GROUND THAT TDS HAS BEEN DEDUCTED IN THE NAME O F NEXTWAVE INDIA PVT. LTD. AND NOT IN THE NAME OF NEX TWAVE INDIA (AOP). 5 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND /OR MODIFY THE ABOVE GROUNDS OF APPEAL. IN OTHER YEARS, SIMILAR GROUNDS ARE RAISED WITH MOD IFICATION IN THE QUANTUM OF ADDITION. 4. AT THE TIME OF HEARING BEFORE US, SHRI R.K. GUPT A, CA, APPEARED ON BEHALF OF NEXTWAVE INDIA (P) LTD. (HEREINAFTER REFE RRED AS PVT. LTD.). HE STATED THAT THE ASSESSEE IS A PRIVATE LIMITED COMPA NY. DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR THE YEARS UNDER APPEAL, IT WAS INFORMED BY THE AO THAT THERE IS A BANK ACCOUNT IN THE STATE BANK O F SAURASHTRA, PATPARGANJ, IN THE NAME OF THE ASSESSEE FROM WHICH THE BUSINESS OF PROVIDING ACCOMMODATION ENTRIES WAS CARRIED ON. WHEN THE ASSE SSEE MADE THE INQUIRY, IT WAS FOUND THAT THE BANK ACCOUNT WAS NOT OPENED B Y THE ASSESSEE BUT BY SHRI B. BHUSHAN AND HIS WIFE RENU BHUSHAN. THE ASS ESSEE FILED FIR AGAINST THEM. DURING THE COURSE OF ASSESSMENT PROCEEDINGS IN RESPONSE TO NOTICE U/S 131, SHRI B. BHUSHAN APPEARED BEFORE THE AO AND HIS STATEMENT WAS RECORDED. THE AO HAS ALSO REPRODUCED PART OF HIS S TATEMENT IN THE ASSESSMENT ORDER. IN THE STATEMENT, SHRI BHUSHAN A DMITTED THAT THE SAID BANK ACCOUNT DOES NOT BELONG TO THE ASSESSEE BUT IT WAS OPENED BY HIM AND HIS WIFE. THE ASSESSEE COMPANY AND MR. BHUSHAN ALS O ENTERED INTO AN MOU DATED 11.10.2007 BY WHICH SHRI BHUSHAN HAS AGAIN AD MITTED THAT THE SAID BANK ACCOUNT BELONGS TO HIM AND IT IS HIS RESPONSIB ILITY TO EXPLAIN THE CREDIT 6 IN SUCH BANK ACCOUNT AND IF NOT ABLE TO EXPLAIN, TH EN PAY THE TAX THEREON. A COPY OF SUCH MOU WAS ALSO FILED BEFORE THE AO. ON THE BASIS OF THESE EVIDENCES, THE AO ACCEPTED THAT THE BANK ACCOUNT BE LONGS TO MR. AND MRS. BHUSHAN. HOWEVER, STILL HE MADE THE ADDITION IN TH E CASE OF PVT. LTD., IN RESPECT OF CREDIT IN THE BANK ACCOUNT ON PROTECTIVE BASIS. ON APPEAL, THE CIT(A) NOTICED THAT THERE WERE CERTAIN OTHER BANK A CCOUNTS, NAMELY IN BANK OF BARODA, CITY BANK, HDFC ETC. AND HE ENHANCED THE INCOME OF THE ASSESSEE BY THE CREDIT IN SUCH BANK ACCOUNTS. HE S TATED THAT THE AO ALSO ISSUED NOTICES IN THE NAME OF NEXTWAVE INDIA (AOP) (HEREINAFTER REFERRED TO AS AOP) IN RESPONSE TO WHICH THE AOP FILED THE RETU RN DISCLOSING INTEREST INCOME. DURING THE ASSESSMENT PROCEEDINGS OF AOP, AGAIN, MR. BHUSHAN ADMITTED THAT THE BANK ACCOUNTS BELONGED TO AOP. S INCE MR. BHUSHAN WAS UNABLE TO EXPLAIN THE CREDIT IN SUCH BANK ACCOUNT, THE AO MADE THE ADDITION IN RESPECT OF CREDIT IN THE BANK ACCOUNT IN THE HAN DS OF THE AOP ON SUBSTANTIVE BASIS. THAT THE CIT(A) UPHELD THE ORDE R OF THE AO. IT IS STATED BY THE LD. COUNSEL THAT FROM THE FACTS IT IS EVIDEN T THAT THE BANK ACCOUNT DID NOT BELONG TO THE PVT. LTD. BUT ACTUALLY BELONGED T O THE AOP CONSTITUTED BY MR. AND MRS. BHUSHAN, WHICH HAS ALREADY BEEN CONSID ERED AND ASSESSED IN THE HANDS OF THE AOP. THE PROTECTIVE ADDITION, THE REFORE, IN THE HANDS OF THE ASSESSEE, IS NOT JUSTIFIED. THE SAME SHOULD BE DEL ETED. 7 5. SHRI NEERAJ JAIN AND SHRI P.K. MISHRA, CAS APPEA RED FOR AND ON BEHALF OF THE AOP. THEY FAIRLY ADMITTED THAT THE B ANK ACCOUNT WAS OPENED BY MR. AND MRS. BHUSHAN AND IT BELONGED TO THE AOP AND NOT TO THE PVT. LTD. HE, THEREFORE, SUBMITTED THAT THE BANK ACCOUN TS UNDER CONSIDERATION ARE TO BE CONSIDERED IN THE HANDS OF THE AOP AND NOT PV T. LTD. HOWEVER, HE SUBMITTED THAT THE AO ADDED THE ENTIRE CREDIT IN TH E BANK ACCOUNT. HE EXPLAINED THAT MR. AND MRS. BHUSHAN WERE CARRYING O N FINANCING BUSINESS IN THE AOP. THERE WAS RECEIPT OF THE MONEY FROM VARIO US PARTIES AND THE ADVANCES GIVEN TO THE VARIOUS PARTIES. INCOME EARN ED BY THE ASSESSEE WAS BY WAY OF INTEREST, WHICH HAS ALREADY BEEN OFFERED AS INCOME OF THE ASSESSEE. THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, T HE AO GATHERED THE INFORMATION FROM THE LENDERS U/S 133(6)/131. HOWEV ER, IGNORING THE INFORMATION, THE AO ASSESSED THE ENTIRE RECEIPT. I N SUPPORT OF HIS CONTENTION THAT THE AO GATHERED THE INFORMATION U/S 133(6)/131 , HE PRODUCED BEFORE US THE LETTER WRITTEN BY THE AO TO THE CIT(A) WHEREIN HE HAS MENTIONED INFORMATION GATHERED U/S 133(6)/131 ARE ALSO PLACE D IN THE RELEVANT ASSESSMENT FOLDER. HE STATED THAT THIS INFORMATIO N WAS NEITHER CONFRONTED TO THE ASSESSEE NOR DISCUSSED IN THE ASSESSMENT ORD ER. IF ANY SUCH INFORMATION IS COLLECTED BEHIND THE BACK OF THE ASS ESSEE AND IT IS IN FAVOUR OF THE ASSESSEE, THEN THE ADDITION IN RESPECT OF SUCH PARTIES SHOULD NOT HAVE 8 BEEN MADE. IF THE INFORMATION IS AGAINST THE ASSESS EE, HE SHOULD HAVE BEEN CONFRONTED WITH THE SAME AND SHOULD HAVE BEEN ALLOW ED THE OPPORTUNITY TO REBUT THE SAME. HOWEVER, IGNORING ALL THESE JUDICI AL NORMS, THE AO SIMPLY ASSESSED THE ENTIRE CREDIT IN THE BANK ACCOUNTS. H E FURTHER SUBMITTED THAT THE AO DID NOT ALLOW ADEQUATE OPPORTUNITY TO THE ASSESS EE TO EXPLAIN THE CREDITS IN ITS BANK ACCOUNTS. HE, THEREFORE, SUBMITTED THA T THE MATTER SHOULD BE SET ASIDE TO THE FILE OF THE AO FOR MAKING THE ASSESSME NT AFRESH, AFTER CONFRONTING THE INFORMATION GATHERED U/S 133(6)/131 TO THE ASSESSEE AND AFTER ALLOWING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. LD. DR, ON THE OTHER HAND, RELIED UPON THE ORDER S OF THE AUTHORITIES BELOW. HE STATED THAT THE INVESTIGATION WING OF TH E DEPARTMENT FOUND THAT THERE WERE VARIOUS BANK ACCOUNTS IN THE NAME OF NEX TWAVE INDIA (P) LTD. WHICH WERE BEING UTILIZED FOR GIVING ACCOMMODATION ENTRIES TO VARIOUS PARTIES. SUCH BANK ACCOUNTS WERE NOT DISCLOSED IN THE BALANCE SHEET/INCOME TAX RETURN OF THE PVT. LTD. THEREFORE, THE AO RIGH TLY ASKED THE ASSESSEE I.E. THE PVT. LTD. TO EXPLAIN THE SAME. DURING THE COUR SE OF ASSESSMENT PROCEEDINGS, MR. BHUSHAN ADMITTED THE OWNERSHIP OF THE BANK ACCOUNT AND, THEREFORE, THE SAME WERE CONSIDERED ON SUBSTANTIVE BASIS IN THE HANDS OF AOP. HE STATED THAT IT IS TRUE THAT THE CREDIT IN THE BANK ACCOUNT IS TO BE CONSIDERED AT ONE PLACE AND NOT AT BOTH THE PLACES. HOWEVER, SINCE THE 9 OWNERSHIP OF THE BANK ACCOUNTS WAS IN DISPUTE BECAU SE IT WAS IN THE NAME OF NEXTWAVE INDIA (P) LTD. AND MR. BHUSHAN WAS CLAIMIN G THE OWNERSHIP, THE ADDITIONS WERE MADE AT BOTH THE PLACES I.E. SUBSTAN TIVELY IN THE HANDS OF AOP, WHICH IS OWNED BY MR. & MRS. BHUSHAN AND PROTE CTIVELY IN THE HANDS OF PVT. LTD. HOWEVER, IF ITAT IS OF THE OPINION TH AT THE BANK ACCOUNTS BELONG TO THE AOP, THE SUBSTANTIVE ADDITION MAY BE SUSTAINED IN THE HANDS OF THE AOP, THEN THE DEPARTMENT WOULD HAVE NO OBJECTIO N IN DELETING THE PROTECTIVE ADDITION. 7. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND FACTS OF THE CASE. FROM THE TOTALITY OF THE FACTS AND THE EVIDENCE, IT IS PROVED BEYOND DOUBT THAT THE SAID BANK ACCOUNTS WERE OWNED BY MR. B.BHUSHAN AND SMT. RENU BHUSHAN. FOR THE SAKE OF COMPLETENES S, WE MENTION THE FOLLOWING FACTS WHICH PROVE THAT THE BANK ACCOUNTS UNDER CONSIDERATION BELONGED TO BHUSHANS AND NOT TO PVT. LTD.:- I) THE BANK ACCOUNTS WERE OPENED BY MR. AND MRS. BHUSH AN II) DURING THE ASSESSMENT PROCEEDINGS OF PVT. LTD. IN T HE STATEMENT RECORDED U/S 131, MR. B. BHUSHAN ADMITTED THAT THE BANK ACCOUNTS BELONGED TO HIMSELF AND HIS WIFE. 10 III) AS PER THE MOU BETWEEN THE PVT. LTD. AND MR. B. BHU SHAN, MR. BHUSHAN ADMITTED THAT THE BANK ACCOUNTS BELONGED TO HIM AND HIS WIFE AND NOT TO THE PVT. LTD. IV) IN RESPONSE TO NOTICE U/S 148 IN THE CASE OF AOP, M R. BHUSHAN FILED THE RETURN DISCLOSING INTEREST INCOME. DURIN G THE ASSESSMENT PROCEEDINGS OF AOP, MR. BHUSHAN ADMITTED THAT THE B ANK ACCOUNTS BELONGED TO AOP AND NOT THE PVT. LTD. V) THE AO ALSO FORMED THE OPINION THAT THE BANK ACCOUN TS BELONGED TO BHUSHANS AND, THUS, ASSESSABLE IN THE HANDS OF A OP AND, THEREFORE, SUBSTANTIVE ADDITION IS MADE IN THE HAND S OF AOP. VI) DURING THE COURSE OF APPELLATE PROCEEDINGS B EFORE US, SHRI NIRAJ JAIN AND SHRI P.K. MISHRA, CA, THE LEARNED COUNSELS FOR AOP, STATED IN THE OPEN COURT THAT THE BANK ACCOUNTS ARE OWNED BY THE AOP AND ARE ASSESSABLE IN ITS HANDS IN ACCORDANCE WITH LAW. 8. IN VIEW OF THE TOTALITY OF THE ABOVE FACTS, WE H OLD THAT THE BANK ACCOUNTS BELONGED TO M/S NEXTWAVE INDIA (AOP) AND N OT NEXTWAVE INDIA(P) LTD. THEREFORE, THE PROTECTIVE ADDITIONS MADE BY THE AO AND ENHANCEMENT THEREOF BY THE CIT(A) ARE DELETED AND T HE APPEALS BY NEXTWAVE INDIA (P) LTD. ARE ALLOWED. 11 9. COMING TO THE QUANTIFICATION OF THE ADDITION IN THE CASE OF AOP, WE FIND THAT IN A LETTER DATED 10.1.2011 WRITTEN BY IT O, WARD 36(3), NEW DELHI I.E. AO OF THE AOP TO THE CIT(A), THE FOLLOWING FAC TS ARE MENTIONED: ALL THE RETURNS SUBMISSIONS MADE BY THE ASSESSEE D URING THE COURSE OF ASSESSMENT PROCEEDINGS ARE AVAILABLE IN THE RELEVANT ASSESSMENT FOLDERS. INFORMATION GATHERED U/S 133(6)/131 ARE ALSO PLACED IN THE RELEVANT ASSESSMENT FOLDERS. FROM THE ABOVE, IT IS EVIDENT THAT DURING THE COURS E OF ASSESSMENT PROCEEDINGS, CERTAIN INFORMATION WAS GATHERED U/S 1 33(6)/131 WHICH IS AVAILABLE IN THE ASSESSMENT RECORD. HOWEVER, IN TH E ASSESSMENT ORDER, WE DO NOT FIND ANY WHISPER ABOUT SUCH INFORMATION. IF TH E INFORMATION IS AGAINST THE ASSESSEE, HE SHOULD HAVE BEEN CONFRONTED WITH T HIS INFORMATION AND IF THE INFORMATION WAS IN FAVOUR OF THE ASSESSEE, THEN TO THAT EXTENT, ADDITION SHOULD NOT HAVE BEEN MADE. THE AO MADE THE ADDITIO N OF ENTIRE RECEIPT CREDITED IN THE ASSESSEES BANK ACCOUNT. THE ASSES SEE HAS CLAIMED THAT MOST OF THE RECEIPT IS EITHER THE LOAN TAKEN BY THE ASSE SSEE OR REPAYMENT OF THE LOAN WHICH WAS GIVEN BY THE ASSESSEE. HE ALSO STAT ED THAT THE PARTIES FROM WHOM LOAN WAS TAKEN OR WHO REFUNDED THE LOAN TO THE ASSESSEE HAVE AFFIRMED THOSE FACTS TO THE AO IN WRITING. IF IT I S SO, THEN THE ADDITION IN RESPECT OF THAT CREDIT SHOULD NOT HAVE BEEN MADE. IN VIEW OF ABOVE, WE ARE 12 OF THE OPINION THAT IT WOULD MEET THE ENDS OF JUSTI CE IF THE ORDERS OF THE AUTHORITIES BELOW IN THE CASE OF THE AOP FOR ALL TH E THREE YEARS ARE SET ASIDE AND THE MATTER IS RESTORED BACK TO HIS FILE FOR MAK ING ASSESSMENT AFRESH. WE ORDER ACCORDINGLY AND DIRECT THE AO TO: I) SUPPLY THE INFORMATION GATHERED U/S 133(6)/131 TO T HE ASSESSEE; II) ALLOW ADEQUATE OPPORTUNITY OF BEING HEARD TO THE AS SESSEE; III) MAKE THE ASSESSMENT AFRESH IN ACCORDANCE WITH LAW AFTER CONSIDERING THE INFORMATION GATHERED BY HIM AND THE ASSESSEES EXPLANATION/EVIDENCE, AS MAY BE PRODUCED BY THE ASS ESSEE DURING THE SET ASIDE PROCEEDINGS. THUS, THE ASSESSEES APPEALS IN THE CASE OF NEXTWAV E INDIA (AOP) ARE DEEMED TO BE ALLOWED FOR STATISTICAL PURPOSES. 10. IN THE RESULT, THE APPEALS IN ITA NO. 3303, 330 4 AND 1196/DEL/2011 ARE ALLOWED AND APPEALS IN ITA NO. 2983, 2984 AND 2 985/DEL/2011 ARE DEEMED TO BE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25.1.2012. SD/- SD/- (RAJPAL YADAV) (G.D. AGRAWAL) JUDICIAL MEMBER VICE PRESIDENT DATED: 25TH JANUARY, 2012 GS 13 COPY FORWARDED TO:- 1. M/S NEXTWAVE INDIA (AOP), NEW DELHI. 2. CIT(A)-XXVII, NEW DELHI. 3. M/S NEXTWAVE INDIA (P) LTD., NEW DELHI. 4. CIT(A)-XVI, NEW DELHI. 5. CIT 6. DR BY ORDER ASSTT. REGISTRAR