S. RAMASWAMY, MUMBAI V. ACIT (OSD-II) CEN RG 7, MUMBAI

ITA 3372/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0383 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 1995-1996
• Appeal Filed On: 09-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Income from undisclosed sources; Opportunity of being heard; Initiation of penalty proceedings; Corroborative evidences
• Section: 143(3); 234B; 148; 6; 132; 144; 10; 2; 11

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL E , BENCH, MUMBAI , , , BEFORE SHRI RAJENDRA, AM AND SHRI RAM LAL NEGI, JM ./ ITA NO. 3372 / MUM/ 201 4 ( / ASSESSMENT YEAR: 1995 - 96 ) ./ ITA NO. 3373 / MUM/ 201 4 ( / ASSESSMENT YEAR: 1996 - 97 ) ./ ITA NO. 3374 / MUM/ 201 4 ( / ASSESSMENT YEAR: 1997 - 98 ) ./ ITA NO. 3375 / MUM/ 201 4 ( / ASSESSMENT YEAR: 1998 - 99 ) ./ ITA NO. 3376 / MUM/ 201 4 ( / ASSESSMENT YEAR: 2000 - 01 ) & ./ ITA NO. 3377 / MUM/ 201 4 ( / ASSESSMENT YEAR: 2003 - 04 ) SHRI S. RAMASWAMY, B - 11, SWAGAT CHS, J.V.I .R., ANDHERI (E), MUMBAI - 400093 VS. THE ACIT (OSD - II), CENTRAL RANGE - 7, MUMBAI ./ ./ PAN/GIR NO. : ACYPS 8259 D ( / APPELLANT ) .. ( / RESPONDENT ) ./ ITA NO. 3379 / MUM/ 201 4 ( / ASSESSMENT YEAR: 2008 - 09 ) SHRI S. RAMASWAMY, B - 11, SWAGAT CHS, J.V.I.R., ANDHERI (E), MUMBAI - 400093 VS. THE D CIT (OSD - II), CENTRAL RANGE - 7, MUMBAI ./ ./ PAN/GIR NO. : ACYPS 8259 D ( / APPELLANT ) .. ( / RESPONDENT ) 2 ITA NO S . 3372, 3373, 3374, 3375, 3376, 3377 & 3379/MUM/201 4 A SSESSMENT YEAR S : 1995 - 96, 1996 - 97, 1997 - 98, 1998 - 99, 2000 - 01, 2003 - 04 & 2008 - 09 /ASSESSEE BY : SHRI VIMAL PUNMIYA & SHRI BHA RA T KUMAR /REVENUE BY : SHRI RAJESH OJHA / DATE OF HEARING : 31 /05 /2017 / DATE OF PRONOUNCEMENT : 09 /06 /2017 / O R D E R PER BENCH THESE ARE THE APPEAL S FILED BY THE A SSESSEE FOR THE ASSESSMENT YEARS 1995 - 96, 1996 - 97, 1997 - 98, 1998 - 99, 2000 - 01, 2003 - 04 AND 2008 - 09 AGAINST THE SEPARATE ORDERS PASSED ON 27/02/2014 & 28/02/2014 BY COMMISSIONER OF INCOME TAX (APPEALS) - 40, MUMBAI, WHEREBY THE LD. COMMISSIONER OF INCOME TAX ( APPEALS) CONFIRMED THE ASSESSMENT ORDERS PASSED BY THE AO U/S 144 AND 143(3) OF THE INCOME TAX ACT (FOR SHORT THE ACT). 2. SINCE, ALL THE SEVEN APPEALS PERTAIN TO THE SAME ASSESSEE AND THE CIRCUMSTANCES UNDER WHICH THE IMPUGNED ORDERS HAVE BEEN PASSED A ND THE ISSUES INVOLVED IN THESE APPEALS ARE EITHER IDENTICAL OR SIMILAR, ALL THE APPEALS WERE CLUBBED , HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 3. IN ALL THE SEVEN CASES THE ASSESSMENT ORDER S W ERE PASSED BY THE AO AND THE CONFIRMED BY THE LD. CIT(A) UNDER THE SAME SET OF FACTS AND CIRCUMSTANCES. THE FACTS EMANATING FROM THE RECORD AND THE PLEADINGS OF THE PARTIES ARE THAT THE ASSESSEE , PROPRIETOR OF M/S EXCELLENT COMPANY WAS A MEMBER OF MAHARASHTRA STOCK E XCHANGE AND ENGAGED IN THE BUSINESS OF TRADING IN SECURITIES AND SHARES DURING THE RELEVANT PERIOD . THE SEARCH WAS CONDUCTED BY THE CBI ON 23/06/1992 AT THE RESIDENCE AND OFFICE OF THE ASSESSEE ON THE ALLEGATION THAT THE ASSESSEE WAS INVOLVED IN MULTI - CROR E SECURITY SCAM. A SEARCH U/S 132 WAS CONDUCTED BY THE INCOME TAX DEPARTMENT AT THE PREMISES 3 ITA NO S . 3372, 3373, 3374, 3375, 3376, 3377 & 3379/MUM/201 4 A SSESSMENT YEAR S : 1995 - 96, 1996 - 97, 1997 - 98, 1998 - 99, 2000 - 01, 2003 - 04 & 2008 - 09 OF THE ASSESSEE ON 16/10/1992. DURING THE SEARCH OPERATIONS DOCUMENTS WERE SEIZED BY THE SAID AGENCIES. THE CUSTODIAN ALSO TOOK POSSESSION OF THE REMA INING RECORD AND THE BANK ACCOUNTS OF THE ASSESSEE. A SSESSEE REMAINED IN JAIL FOR A LONG TIME. THE ASSESSEE WAS NOT IN POSSESSION OF THE DOCUMENTS WHEN THE AO COMPLETED THE ASSESSMENT ORDERS FOR THE ASSESSMENT YEARS UNDER CONSIDERATION . THE DOCUMENTS COULD NOT BE PRODU CED EVEN DURING THE APPELLATE STAGE. THE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER S PASSED BY THE LD. CIT(A) FOR THE ASSESSMENT YEARS UNDER CONSIDERATION ARE AS UNDER: ITA NO. 3372/MUM/2014 (ASSESSMENT YEAR: 1995 - 96 ) GROUND NO. 1 THE APPELLANT IS ONCE AGAIN DISPUTING THE COMPLETION OF ASSESSMENT U/S 144 IF THE INCOME TAX ACT, 1961BY THE LD. ASSESSING OFFICER CONFIRMED BY THE CIT (A). GROUND NO. 2 THE LD. CIT (A) ERRED IN CONFIRMING AN AMOUNT OF RS. 27,25,095/ - TOWARDS THE ENHANCEMENT OF THE INCOME OF TH E ASSESSEE AND THEREBY AND TREATED THE SAME AS UNEXPLAINED DEPOSITS IN THE BANK ACCOUNTS OF THE ASSESSEE WITH CANARA BANK AND BANK OF BARODA. GROUND NO. 3 THE LD. CIT (A) ERRED IN CHARGING INTEREST U/S 234B AND 234C OF THE IT ACT. GROUND NO. 4 THE LD. CIT (A) ERRED IN CHARGING INTEREST U/S 271(1)(C) OF THE INCOME TAX ACT. ITA NO. 3373/MUM/2014 (ASSESSMENT YEAR: 1996 - 97 ) GROUND NO. 1 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW, THE LD. CIT (A) IS FAILED TO CONSIDERED THAT THE ASSESSMENT ORDER PA SSED U/S 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961, IS BAD IN LAW AND REQUIRED TO BE QUASHED. 4 ITA NO S . 3372, 3373, 3374, 3375, 3376, 3377 & 3379/MUM/201 4 A SSESSMENT YEAR S : 1995 - 96, 1996 - 97, 1997 - 98, 1998 - 99, 2000 - 01, 2003 - 04 & 2008 - 09 GROUND NO. 2 THE LD. CIT (A) ERRED IN CONFIRMING AN AMOUNT OF RS. 8,14,221/ - TOWARDS THE ENHANCEMENT OF THE INCOME OF THE ASSESSEE AND THEREBY AND TREATED THE SAME AS UNEXPLAINED DEPOSITS IN THE BANK ACCOUNTS OF THE ASSESSEE. GROUND NO. 3 THE LD. CIT (A) ERRED IN CHARGING INTEREST U/S 234B AND 234C OF THE IT ACT. GROUND NO. 4 THE LD. CIT (A) ERRED IN CHARGING INTEREST U/S 271(1)(C) OF THE INCOME TAX ACT. ITA NO. 3374/MUM/2014 (ASSESSMENT YEAR: 1997 - 98 ) GROUND NO. 1 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW, THE LD. CIT (A) IS FAILED TO CONSIDERED THAT THE ASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961, IS BAD IN LAW AND R EQUIRED TO BE QUASHED. GROUND NO. 2 THE LD. CIT (A) ERRED IN CONFIRMING AN AMOUNT OF RS. 11,03,232/ - TOWARDS THE ENHANCEMENT OF THE INCOME OF THE ASSESSEE AND THEREBY AND TREATED THE SAME AS UNEXPLAINED DEPOSITS IN THE BANK ACCOUNTS OF THE ASSESSEE. GROUND NO. 3 THE LD. CIT (A) ERRED IN CHARGING INTEREST U/S 234B AND 234C OF THE IT ACT. GROUND NO. 4 THE LD. CIT (A) ERRED IN CHARGING INTEREST U/S 271(1)(C) OF THE INCOME TAX ACT. ITA NO. 3375 /MUM/2014 (ASSESSMENT YEAR: 1998 - 99 ) GROUND NO. 1 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW, THE LD. CIT (A) IS FAILED TO CONSIDERED THAT THE ASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961, IS BAD IN LAW AND REQUIRED TO BE QUASHED. 5 ITA NO S . 3372, 3373, 3374, 3375, 3376, 3377 & 3379/MUM/201 4 A SSESSMENT YEAR S : 1995 - 96, 1996 - 97, 1997 - 98, 1998 - 99, 2000 - 01, 2003 - 04 & 2008 - 09 GROUND NO. 2 THE LD. CIT (A) ERRED IN CONFIRMING AN AMOUNT OF RS. 2,10,412 / - TOWARDS THE ENHANCEMENT OF THE INCOME OF THE ASSESSEE AND THEREBY AND TREATED THE SAME AS UNEXPLAINED DEPOSITS IN THE BANK ACCOUNTS OF THE ASSESSEE. GROUND NO. 3 THE LD. CIT (A) ERRED IN CHARGING INTEREST U/S 234B AND 234C OF THE IT ACT. GROUND NO. 4 THE LD. CIT (A) ERRED IN CHARGING INTEREST U/S 271(1)(C) OF THE INCOME TAX ACT. ITA NO. 3376/MUM/2014 (ASSESSMENT YEAR: 2000 - 01 ) GROUND NO. 1 THE LD. CIT (A) FAILED TO CONSIDERED THAT THE ASSESSMENT ORDER PASSED U/S 147 WITHOUT SE RVING THE NOTICE U/S 148 IS BAD IN LAW AND REQUIRED TO BE QUASHED. GROUND NO. 2 THE LD. CIT (A) ERRED IN ACCEPTING THE CONTENTION OF AO THAT BROKERAGE BUSINESS OF ASSESSEE HAS BE TAKEN AT NIL AS AGAINST THE BUSINESS LOSS OF RS. 1,98,899/ - GROUND NO. 3 THE LD. CIT (A) ERRED IN ADDITION OF RS. 5,45,872/ - IN RESPECT OF THE TOTAL DEPOSITS IN THE BANK ACCOUNT, BY TREATING THEM AS INCOME FROM UNDISCLOSED SOURCES. GROUND NO. 4 THE LD. CIT (A) ERRED IN CHARGING INTEREST U/S 234B AND 234C OF THE IT ACT. GROUND NO. 5 THE LD. CIT (A) ERRED IN CHARGING INTEREST U/S 271(1)(C) OF THE INCOME TAX ACT. ITA NO. 3377/MUM/2014 (ASSESSMENT YEAR: 2003 - 04 ) GROUND NO. 1 6 ITA NO S . 3372, 3373, 3374, 3375, 3376, 3377 & 3379/MUM/201 4 A SSESSMENT YEAR S : 1995 - 96, 1996 - 97, 1997 - 98, 1998 - 99, 2000 - 01, 2003 - 04 & 2008 - 09 THE LD. CIT (A) ERRED IN MAKING ADDITION OF RS. 2,63,591/ - AS UNEXPLAINED CASH CREDIT IN THE BANK ACCOUNTS ON LUMP SUM BASIS. GROUND NO. 2 THE LD. CIT (A) ERRED IN CHARGING INTEREST U/S 234B AND 234C OF THE IT ACT. GROUND NO. 3 THE LD. CIT (A) ERRED IN CHARGING INTEREST U/S 271(1)(C) OF THE INCOME TAX ACT. ITA NO. 3379/MUM/2014 (ASSESSMENT YEAR: 2008 - 09 ) G ROUND NO. 1 THE LD. CIT (A) ERRED IN TAKING THE ENTIRE AMOUNT OF RS. 5,65,900/ - AS INCOME AS PER THE COMPUTATION OF INCOME AND ARRIVING AT RS. 3,20,65,000/ - GROUND NO. 2 THE LD. CIT (A) ERRED IN CHARGING INTEREST U/S 234B AND 234C OF THE IT ACT. GROUND NO. 3 THE LD. CIT (A) ERRED IN CHARGING INTEREST U/S 271(1)(C) OF THE INCOME TAX ACT. 4. AT THE OUTSET T HE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSMENT ORDERS IN THESE CASES WERE PASSED EITHER U/S 144 OR U/S. 143(3) OR 143(3) R.W.S.147 OF THE ACT. THE APPEAL PERTAINING TO THE ASSESSMENT YEAR 1995 - 96, 1996 - 97, 1997 - 98 , 1998 - 99 AND 2000 - 2001 WERE EARLIER DISMISSED IN LIMINE BY THE LD CIT(A) ON THE GROUND THAT THE APPELLANT HA D FAILED TO PAY ADVANCE TAX AS REQUIRED U/S 249(4) OF THE ACT. IN TH E SECOND APPEAL, THE TRIBUNAL AFTER HEARING THE RIVAL SUBMISSIONS, SET ASIDE THE IMPUGNED ORDERS AND DIRECTED THE LD. CIT(A) TO GIVE AN OPPORTUNITY TO EXPLAIN AS TO HOW THE PROVISIONS OF SECTION 249(4)(B) OF THE ACT ARE NOT APPLICABLE . ACCORDINGLY, THE LD. CIT(A) FOLLOWING THE LAW LAID DOWN BY THE HONBLE HIGH COURT IN CIT VS. DHANRAJ MILLS , ADMITTED THE APPEALS AND DECIDE THE SAME AFTER HEARING THE ASSESSEE. THE APPEAL PERTAINING TO THE ASSESSMENT YEAR 2003 - 04 WAS PASSED U/S 143(3), HOWEVER, THE ASSESSEE 7 ITA NO S . 3372, 3373, 3374, 3375, 3376, 3377 & 3379/MUM/201 4 A SSESSMENT YEAR S : 1995 - 96, 1996 - 97, 1997 - 98, 1998 - 99, 2000 - 01, 2003 - 04 & 2008 - 09 C OULD NOT SUBSTANTIATE HIS CONTENTION DUE TO NON AVAILABILITY OF PROPER RECORD. ASSESSMENT PERTAINING TO THE ASSESSMENT YEAR 2008 - 09 WAS PASSED U/S 144 OF THE ACT. THE LD. COUNSEL FURTHER SUBMITTED THAT ON THE ALLEGATION OF MULTI - CRORE SECURITY SCAM SEARCH WAS CONDUCTED BY THE CBI ON 23.6.1992 AT THE PREMISES OF THE ASSESSEE. SEARCH ACTION WAS ALSO CARRIED OUT BY THE INCOME TAX DEPARTMENT U/S 132 OF THE ACT. ALL THE AVAILABLE DOCUMENTS AND RECORDS WERE SEIZED BY BOTH THE AGENCIES. FURTHER THE ASSESSEE LOST A LL HIS IMPORT ANT DOCUMENTS AND RECORDS IN FIRE WHICH BROKE OUT IN HIS OFFICE ON 4.1.2010. THE CUSTODIAN APPOINTED UNDER THE SPECIAL COURT (TRIAL OF OFFENCES RELATING TO TRANSACTION IN SECURITIES) ACT, 1992 HAS TAKEN POSSESSION OF THE DOCUMENTS AND THE BA NK ACCOUNTS OF THE ASSESSEE. WRITTEN SUBMISSIONS WERE MADE FROM TIME TO TIME TO THE CUSTODIAN TO MAKE THE DOCUMENTS AVAILABLE BUT OF NO AVAIL . THE LD. COUNSEL FURTHER SUBMITTED THAT THE MUMBAI TRIBUNAL HAS REMANDED THE ASSESSEES APPEAL ITA NO 3482/M/2014 FOR THE ASSESSMENT YEAR 1994 - 95 TO THE AO FOR FRESH ADJUDICATION. THE LD. COUNSEL THEREFORE, SUBMITTED THAT IN VIEW OF THE FACTS OF THE PRESENT CASES AND THE CIRCUMSTANCES UNDER WHICH THE AUTHORITIES BELOW HAVE PASSED THE ORDERS, THE ASSESSEE MAY BE GIVEN AN OPPORTUNITY TO PRESENT HIS CASES AND SUBSTANTIATE HIS CONTENTIONS. 5. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) RELYING ON THE ORDERS PASSED BY THE LD. CIT(A) SUBMITTED THAT THE ASSESSEE HAS BEEN GIVEN SUFFICIENT OPPORTUNITY TO PRESEN T ITS CASE DURING THE ASSESSMENT AS WELL AS THE APPELLATE PROCEEDINGS, THERE IS NO MERIT IN THE CONTENTION OF THE ASSESSEE, THEREFORE, THE APPEALS ARE LIABLE TO BE DISMISSED. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD IN THE LIGHT OF THE RESPECTIVE SUBMISSIONS OF THE PARTIES. EXCEPT IN APPEAL FOR THE ASSESSMENT YEAR 2003 - 04 AND 2008 - 09, THE ASSESSEE HAS CHALLENGED THE ASSESSMENT ORDER PASSED EITHER U/S 144 OR 143(3) R.W.S. 147 OF THE ACT . THE 8 ITA NO S . 3372, 3373, 3374, 3375, 3376, 3377 & 3379/MUM/201 4 A SSESSMENT YEAR S : 1995 - 96, 1996 - 97, 1997 - 98, 1998 - 99, 2000 - 01, 2003 - 04 & 2008 - 09 SECOND COMMON GROUND IN APPEAL FO R THE ASSESSMENT YEARS 1995 - 96, 1996 - 97, 1997 - 98, 1998 - 99, AND 200 0 - 0 1 IS REGARDING CONFIRMATION OF ENHANCEMENT OF INCOME OF THE ASSESSEE MADE BY THE AO. APART FROM OTHER GROUNDS, THE ASSESSEE HAS CHALLENGED THE CONFIRMATION OF ACTION OF THE ASSESSEE IN TA KING THE ENTIRE AMOUNT OF RS.5,65,900/ - AS AS INCOME AS PER COMPUTATION OF INCOME AND ARRIVING AT THE ASSESSED INCOME OF RS. 3,20,65,000/ - . THE ASSESSEE HAS ALSO CHALLENGED THE ACTION OF THE LD. CIT(A) IN ACCEPTING THE FINDINGS OF AO THAT BROKERAGE BUSINE SS OF THE ASSESSEE HAS TO BE TAKEN AT NIL AS AGAINST THE BUSINESS LOSS OF RS. 1,98,899/ - . REMAINING GROUNDS IN ALL THE APPEALS PERTAIN TO THE CHARGING OF INTEREST OR INITIATION OF PENALTY PROCEEDINGS ETC. WHICH ARE CONSEQUENTIAL IN NATURE. 7. ADMITTEDLY, THE ASSESSEE WAS ARRESTED ON JUNE 26 TH 1992 IN CONNECTION WITH HIS ALLEGED INVOLVEMENT IN MULTI - CRORE SECURITY SCAM. DURING THE SEARCH OPERATIONS THE RELATED DOCUMENTS WERE SEIZED BY THE CBI AND THE INCOME TAX DEPARTMENT. THE CUSTODIAN WAS APPOINTED UNDER THE SPECIAL COURT (TRIAL OF OFFENCES RELATING TO TRANSACTION IN SECURITIES) ACT, 1992 WHO TOOK THE POSSESSION OF RECORDS AND THE BANK ACCOUNTS OF THE ASSESSEE. THE ASSESSEE REMAINED IN JAIL FOR A LONG TIME AFTER HIS ARREST. SOME OF THE DOCUMENTS WERE DES TROYED IN FIRE. AS ALLEGED BY THE ASSESSEE HIS WRITTEN REQUESTS FOR RELEASING OF THE REQUIRED DOCUMENTS WERE TURNED DOWN BY THE CUSTODIAN. UNDER THESE CIRCUMSTANCES AN INFERENCE CAN SAFELY BE DRAWN THAT THE ASSESSEE COULD NOT PRESENT HIS CASE S PROPERLY BEF ORE THE AUTHORITIES BELOW DUE TO THE CIRCUMSTANCES BEYOND HIS CONTROL. 8. T HE COORDINATE BENCH HAS SET ASIDE THE ORDER PASSED BY THE LD. CIT (A) IN ASSESSEES APPEAL ITA NO. 3482/MUM/2014 FOR THE AY 1994 - 95 AND SENT THE SAME BACK TO THE AO WITH DIRECTION TO DECIDE THE ISSUE AFRESH IN THE LIGHT OF THE 9 ITA NO S . 3372, 3373, 3374, 3375, 3376, 3377 & 3379/MUM/201 4 A SSESSMENT YEAR S : 1995 - 96, 1996 - 97, 1997 - 98, 1998 - 99, 2000 - 01, 2003 - 04 & 2008 - 09 OBSERVATIONS MADE IN THE ORDER. THE RELEVANT PORTION OF THE SAID ORDER READS AS UNDER: - 3 . WE HAVE HEARD THE LD. AR OF THE ASSESSEE AND THE LAD DR FOR REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. A FIRST GROUND OF APPEAL RELATES TO THAT THE ASSESSMENT UNDER SECTION 144 IS BAD IN LAW AND REQUIRED TO QUASH. THE LD. AR OF THE ASSESSEE ARGUED THAT SEARCH WAS CONDUCTED BY CBI ON 23 RD OF JUNE 1192 AND ACTION UNDER SECTION 132 OF INCOME TAX WAS CONDUCTED B Y THE REVENUE AT THE OFFICE AND RESIDENTIAL PREMISES OF ASSESSEE ON 16 TH /17 TH OF OCTOBER 1192 AT CHENNAI AS WELL AS IN MUMBAI. ALL THE AVAILABLE DOCUMENTS AT THE RESIDENTIAL PREMISES AS WELL AS OFFICE WERE SEIZED BY BOTH THE AGENCIES. HUGE ADDITIONS AND DI SALLOWANCE WERE MADE BY AO WITHOUT SUPPORTING EVIDENCE. WHICH HAVE BEEN CONFIRMED BY LD CIT (A) WITHOUT CONSIDERING THE FACTS OF THE CASE. THE ASSESSEE CA ISSUED AUDIT REPORT ON 30 SEPTEMBER 1194 WHICH IS THE DUE DATE PRESCRIBED UNDER SECTION 139(1). THE A SSESSEE OBTAINED THE AUDIT REPORT ON TIME BUT COULD NOT FURNISHED BEFORE AO ON TIME. HOWEVER, DUE TO NON FILING OF AUDITED REPORT IN TIME, THE AO CANNOT PRESUME THAT AUDIT REPORT IS INVALID OR WAS BACKDATED. THE BEST JUDGMENT ASSESSMENT CANNOT BE PASSED US ING MATERIAL, WHICH WAS GATHER FROM THE ASSESSEE AND ON THE BASIS OF INFORMATION PROVIDED BY ASSESSEE DURING THE ASSESSMENT PROCEEDING. THE NON - FILING OF AUDITED REPORT IN TIME WAS DUE TO THE REASONS BEYOND THE CONTROL OF ASSESSEE. THE LD . AR PRAYED THAT A LL THE ADDITIONS WERE MADE WITHOUT ANY BASIS. IT WAS FURTHER ARGUED THAT DURING THE FIRST APPELLATE STAGE THE LD CIT (A) PASSED ORDER UNDER SECTION 250(4) DATED 18.03.2004 AND DIRECTED THE AO TO EXAMINE CERTAIN ISSUE. THE ASSESSEE WAS APPROACHING THE AO TI ME AND AGAIN TO FURNISH REQUIRED INFORMATION AND DOCUMENTS, DESPITE THE DIRECTION OF LD CIT (A) NO REMAND REPORT WAS FILED, THUS ALL THE ADDITIONS AND DISALLOWANCE UNDER CHALLENGED, BASED ON MARE ESTIMATION ARE LIABLE TO BE DELETED. ON THE OTHER HAND THE L D DR FOR THE REVENUE SUPPORTED THE ORDER OF LD CIT (A) AND WOULD ARGUE THAT THE APPEAL ORDER WAS PASSED ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 4 . WE HAVE CONSIDERED THE RIVAL CONTENTION OF THE PARTIES AND FURTHER GONE THROUGH THE ORDERS OF AUTHORI TIES BELOW. WE HAVE NOTICED THAT THE ASSESSEE FILED FIRST APPEAL BEFORE COMMISSIONER (APPEAL) WITHIN TIME I.E. ON 30 TH APRIL 1197, THE 10 ITA NO S . 3372, 3373, 3374, 3375, 3376, 3377 & 3379/MUM/201 4 A SSESSMENT YEAR S : 1995 - 96, 1996 - 97, 1997 - 98, 1998 - 99, 2000 - 01, 2003 - 04 & 2008 - 09 APPEAL WAS DECIDED ONLY ON 26 TH MARCH 2014. THE AO PASSED THE ASSESSMENT ORDER UNDER SECTION 144 OF THE ACT. DURING THE F IRST APPELLATE STAGE, AS PER THE ORDER UNDER SE3CTIION 250 (4), THE ASSESSEE FURNISHED EVIDENCE WITH REGARD TO THE ADDITION OF RS. 91,63,075/ - ON ACCOUNT OF UNEXPLAINED CREDIT, ADDITION OF RS. 57,09,725/ - ON ACCOUNT OF SHARE TRADING LOSS, ESTIMATED BROKERA GE INCOME OF RS. 20,00,000/ - , DISALLOWANCE OF SUB - BROKERAGE OF RS. 8,42,500/ - . THE LD CIT (A) CALLED THE REPORT OF AO ON THE EVIDENCE FURNISHED BY ASSESSEE. WE HAVE FURTHER SEEN THAT DESPITE THE REPEATED ORDERS AND REMINDERS OF LD CIT (A) DATED 25.10.2012, 09.01.2013, 04.07.2013 & 14.10.2013 NO REMAND REPORT WAS SUBMITTED BY AO. WE HAVE NOTICED THAT THE LD CIT (A) IN PARA 4 OF ITS ORDER RECORDED THAT AO SUBMITTED A LETTER DATED 21/02/2014 STATING THEREIN THAT THE ASSESSEE HAD ASKED CERTAIN DOCUMENTS. THE AO FURTHER MENTIONED THAT, HE ASKED THE ASSESSEE TO ARRANGE HIS OWN XEROX MACHINE AND OPERATOR, BUT AFTER THAT THE ASSESSEE DID NOT TURN UP. WE, INSTEAD OF GOING INTO THE CONTROVERSY AS TO WHY THE AO ASKED THE ASSESSEE TO ARRANGE THE XEROX MACHINE AND OPERAT OR FOR OBTAINING COPY OF THE DOCUMENTS WHICH WERE IN POWER AND POSSESSION OF REVENUE AND NOT FURNISHING REMAND REPORT BY AO, DEEM IT APPROPRIATE TO RESTORE ALL GROUND OF APPEAL RAISED B EFORE TRIBUNAL TO THE FILE OF AO FOR FRESH ADJUDICATION IN ACCORDANCE W ITH LAW. NEEDLESS TO ORDER THE AO SHALL PROVIDE SUFFICIENT OPPORTUNITY TO THE ASSESSEE BEFORE PASSING THE ORDER AFRESH. THE AO SHALL PROVIDE ALL THE NECESSARY ASSISTANCE TO THE ASSESSEE FOR SUPPLY THE COPY OF THE DOCUMENTS IF REQUIRED BY ASSESSEE, WHICH WE RE SEIZED DURING THE SEARCH UNDER SECTION 132 BY REVENUE AT THE PREMISES OF THE ASSESSEE ON 16 OCTOBER 1992. AS THE PRESENT APPEAL IS RELATES TO AY 1994 - 95, THUS THE AO IS FURTHER DIRECTED TO MAKE HIS ENDEAVOR TO PASS THE ORDER WITHIN 12 MONTHS OF RECEIPT OF THIS ORDER. WITH THESE DIRECTIONS THE APPEAL OF THE ASSESSEE IS DISPOSED OFF. . 9. THE FACTS AND ISSUES INVOLVED IN THE PRESENT CASES ARE EITHER IDENTICAL OR SIMILAR TO THE ISSUES INVOLVED IN THE ASSESSEES OWN CASE FOR THE A.Y. 1994 - 95 AFORESAID. T HE COORDINATE BENCH HAS SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT (A) IN THE ASSESSEES APPEAL FOR THE A.Y. 1994 - 95 AND RESTORED ALL THE GROUNDS OF APPEAL TO THE FILE OF THE AO FOR PASSING ASSESSMENT ORDERS AFRESH. S INCE THE ORDERS UNDER CHALLENG E H AVE ALSO BEEN PASSED UNDER THE SIMILAR CIRCUMSTANCES, WE RESPECTFULLY FOLLOWING THE VIEW TAKEN BY THE CO - ORDINATE BENCH SET ASIDE THE IMPUGNED ORDERS PASSED BY THE LD. CIT(A) AND SEND ALL THESE APPEALS BACK TO THE AO FOR PASSING THE ASSESSMENT ORDERS AF RESH IN ACCORDANCE WITH THE OBSERVATIONS MADE BY THE ITAT IN ASSESSEES OWN CASE 11 ITA NO S . 3372, 3373, 3374, 3375, 3376, 3377 & 3379/MUM/201 4 A SSESSMENT YEAR S : 1995 - 96, 1996 - 97, 1997 - 98, 1998 - 99, 2000 - 01, 2003 - 04 & 2008 - 09 FOR THE A.Y. 1994 - 95 AFORESAID . THE AO IS ACCORDINGLY DIRECTED TO PASS THE ASSESSMENT ORDERS AFRESH AFTER AFFORDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN THE RESULT, APPEAL S FILED BY THE ASSESSEE FOR ASSESSMENT YEAR S 1995 - 96, 1996 - 97, 1997 - 98, 1998 - 99, 2000 - 01, 2003 - 04 & 2008 - 09 ARE ALLOWED FOR THE STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 9 TH JUNE , 2017 . SD/ - SD/ - ( RAJENDRA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 09 / 0 6 / 2017 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A ) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MU MBAI