KARSANDAS LALKHMAN JHAVERI, MUMBAI V. ACIT 18(2), MUMBAI

ITA 342/MUM/2017

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5274 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2012-2013
• Appeal Filed On: 16-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SACHCHIDANAND DUBE
• Assessee Lawyers: KHATIWALA
• Keywords: Unexplained cash credit
• Section: 143(3); 133(6); 64; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ' H ' BENCH, MUMBAI BEFORE HONBLE SHRI SANDEEP GOSAIN , JUDICIAL MEMBER AND HONBLE SHRI N.K. PRADHAN , ACCOUNTANT MEMBER ITA NO. 342 /MUM/ 2017 (ASSESSMENT YEAR: 2012 - 13 ) M/S. KARSANDAS LAKHMAN JHAVERI 219, SHAIKH MEMON STREET ZAVERI BAZAR MUMBAI 400002 VS. ACIT, CIRCLE 18(2) ROOM NO. 302, 3RD FLOOR EARNEST HOUSE , NARIMANPOINT MUMBAI 400021 PAN AAAFK3837B APPELLANT RESPONDENT APPELLANT BY: SHRI JITENDRA SANGHAVI & SHRI KHATIWALA RESPONDENT BY: SHRI SACHCHIDANAND DUBE DATE OF HEARING: 12 .10 .2018 DATE OF PRONOUNCEMENT: 12 . 10 .2018 O R D E R PER SANDEEP GOSAIN, JM THIS APPEAL FILED BY ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A) - 2 9, MUMBAI DATED 21 . 11 .201 6 AND IT RELATES TO A.Y. 2012 - 13 . 1 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A PARTNERSHIP FIRM CARRYING ON THE BUSINESS OF DEALERS AND EXPORTERS IN PRECIOUS METALS, DIAMONDS, STONES, GOLD AND SILVER JEWELLERY. RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED ON 27.09.2012 DECLARING TOTAL INCOME AT ` 1,48,23,960/ - . THE CASE WAS SELECTED FOR SCRUTINY UNDER CAS S FOR REASON L ARGE AMOUNT OF SUNDRY CREDITORS. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO FOUND THAT ADVANCES RECEIVED FROM ONE SHRI QUASIM MOHD YOUSUF A BASTAK AND SMT. SAMIRA ABBAS WAS SHOWN IN THE BOOKS. ASSESSEE HAD SHOWN AN ADVANCE OF ` 1.50 CRORES FROM SHRI QUASIM MOHD YOUSUF A BASTAK AND ` 75 LAKHS FROM SMT. SAMIRA ABBAS. IT WAS EXPLAINED ITA NO. 342 /MUM/ 2017 M/S. KARSANDAS LAKHMAN JHAVERI / ACIT, CIRCLE 18(2) 2 THAT THESE TWO AMOUNTS WERE RECEIVED AS ADVANCES F OR THE PURCHASE OF JEWELLERY. AFTER SERVING NECESSARY NOTICE UNDER THE PROVISIONS OF INCOME TAX ACT, 1961 (HEREINAFTER 'THE ACT') AND AFTER CARRYING OUT VERIFICATIONS, THE AO CONCLUDED THAT SINCE THE ASSESSEE HAS NOT OFFERED ANY SATISFACTORY EXPLANATION REGARDING THE CREDITS OF THE ABOVE AMOUNTS AND ASSESSEE HAS FAILED TO ESTABLISH THE IDENTITY OF THE PARTIES, THEREFORE MADE AN ADDITION OF THE SAME. 2 . AGGRIEVED BY THE ORDER OF AO , ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(A) AND THE LD. CIT(A) VIDE ORDE R DATED 21.11.2016 DISMISSED THE APPEAL FILED BY THE ASSESSEE. 3 . NOW BEFORE US THE ASSESSEE HAS FILED THE PRESENT APPEAL ON THE FOLLOWING GROUNDS: - 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 29, MUMBAI [CIT(A)] ERRED IN HOLDING THAT ADVANCES OF RS. 1,50,00,000 AND RS. 75,00, 000 RECEIVED BY THE APPELLANT FROM MR. QASSIM A BASTAKI AND MRS. SAMIRA ABBAS RESPECTIVELY BY WAY OF 'ADVANCE AGAINST ORDER' ARE NOT GENUINE IN NATURE AND THEREBY CONFORMING THE ADDITION MADE BY THE ASSESSING OFFICER U/S.68 O F THE INCOME TAX ACT. YOUR APPELLANT SUBMITS THAT UNDER THE FACTS, AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE THE LEARNED CIT(A) OUGHT TO HAVE DELETED THE ADDITION. THE LEARNED CIT(A) ERRED IN HOLDING THAT THE APPELLANT HAS FAILED TO PROVE THE GENUI NENESS AND IDENTITY OF FOLLOWING PARTIES WHO HAVE GIVEN ADVANCES AGAINST ORDERS TO THE APPELLANT: - S.NO. NAME AMOUNT (RS. I. QASSIM MOHD. BASTAKI 1,50,00,000 II. SAMIRA ABBAS 75,00,000 TOTAL : 2,25,00,000 YOUR APPELLANT SUBMITS THAT UNDER THE FACTS AND IN THE CIRCUMSTANCE S OF THE APPELLANT'S CASE THE CI T(A) OUGHT TO HAVE HELD THAT THE APPELLANT HAS ESTABLISHED THE IDENTITY AND GENUINENESS OF THE PARTIES WHO HAVE GIVEN 'ADVANCE AGAINST ORDERS' AND THEREFORE OUGHT TO HAVE DELETED THE ADDITION. ITA NO. 342 /MUM/ 2017 M/S. KARSANDAS LAKHMAN JHAVERI / ACIT, CIRCLE 18(2) 3 4 . GROUND NO. 1 AND 2 ARE INTER - RELATED AND INTER - CONNECTED AND RELATE S TO CHALLENGING THE ORDER OF THE LD. CIT(A) IN HOLDING THAT THE ADVANCES OF ` 1.5 CRORES AND ` 75 LAKHS RECEIVED BY THE ASSESSEE FROM SHRI QASSIM A. BASTAKI AND SMT. SAMIRA ABBAS RESPECTIVELY BY WAY OF A DVANCE AGAINST ORDER ARE NOT GENUINE IN NATURE AND CONFIRMING THE ADDITION MADE BY THE AO UNDER SECTION 68 OF THE ACT. THEREFORE WE THOUGHT IT FIT TO DISPOSE OF BOTH THE GROUNDS BY THE PRESENT COMMON ORDER. 5 . THE LD. A.R., BEFORE US, REITERATED THE SAME ARGUMENTS AS WERE RAISED BY HIM BEFORE THE LD. CIT(A). IT WAS SUBMITTED THAT THE ASSESSEE IS A PARTNERSHIP FIRM CARRYING ON THE BUSINESS OF DEALERS AND EXPORT ERS OF PRECIOUS METALS, DIAMONDS, STONE, GOLD, SILVER AND JE WELLERY. IT FILED ITS RETURN OF INCOME AND LATER ON THE CASE WAS SELECTED FOR SCRUTINY AND D URING THE COURSE OF ASSESSMENT PROCEEDINGS VARIOUS QUERIES REGARDING ADVANCES RECEIVED FROM SHRI QASSIM MOH. YUSUF A. BASTAK AND SMT SAMIRA ABBAS WAS RAISED BY THE AO AND CONSEQUENTLY, ALL THE DETAILS WERE FILED BEFORE THE AO. V IDE LETTER DATED 02.02.2015, THE ASSESSEE FILED PARTY - WISE DETAILS OF A DVANCE AGAINST ORDER . T HE AO ISSUED SHOW CAUSE NOTICE DATED 03.03.2015 STATING AS TO WHY THE ADVANCES RECEIVED BY THE ASSESSEE SHOULD NOT BE ADDED BACK AS UNEXPLAINED CREDIT UNDER SECTION 68 OF THE ACT. T HE ASSESSEE VIDE LETTER DATED 11.03 .2015 SUBMITTED ALL THE REQUIRED SUPPORTIVE DOCUMENTS IN RESPECT OF IDENTITY, GENUINENESS OF TRANSACTION AND CREDITWORTHINESS OF THE FO LLOWING PARTIES FROM WHOM ASSESSEE HAD RECEIVED ADVANCES FOR SALE OF JEWELLERY : - MR. QASSIM MOHD. YOUSUF A. BASTAKI - RS. 1.50.00.000 I. CONFIRMATION OF QASSIM MOHD. W ITH DETAILS OF DATE AND BANK FROM WHICH HE HAS GIVEN ADVANCE. II. PAN DETAILS ALONGWITH DETAILS OF ASSESSING OFFICER. III. BANK STATEMENT OF QASSIM MOHD. YOUSUF HIGHLIGHTING THE ENTRIES FOR ADVANCE GIVEN. MS. SAMIRA ABBAS - RS. 75.00.000 I. COPY OF SALE REGISTER FOR THE RELEVANT DATE. II. COPY OF LEDGER ACCOUNT OF SAMIRA ABBAS IN THE BOOKS F ROM 1.4.2011 TILL DATE. ITA NO. 342 /MUM/ 2017 M/S. KARSANDAS LAKHMAN JHAVERI / ACIT, CIRCLE 18(2) 4 III. COPY OF SALE INVOICES ISSUED TO SAMIRA ABBAS DATED 22.06.2012 BEARING INVOICE NOS. GS0045, GS 0046 AND DS 0013. IV. COPY OF STOCK REGISTER AS ON 22.06.2012 FOR 18 KT. GOLD, 22 KT. GOLD AND DIAMONDS WHICH REFLECT THE OUTWARD EN TRY FOR USE OF THESE ITEMS FOR MAKING JEWELLERY FOR SAMIRA ABBAS. 6 . IT WAS SUBMITTED BY LD. AR THAT THE ASSESSEE HAD RECEIVED A DVANCE FOR PREPARING JEWELLERY FOR THE DAUGHTERS WEDDING OF SHRI QASSIM MOHD. AND DUE TO SOME UNAVOIDABLE CIRCUMSTANCES , THE MARRIAGE WAS POSTPONED. IT WAS SETTLED THAT WHENEVER THE WEDDING OF HIS DAUGHTER WOULD TAKE PLACE THEN THE JEWELLERY WOULD INVARIABLY BE PREPARED BY THE ASSESSEE AND FOR THA T REASON SHRI QASSIM BASTAKI HAD KEPT THE ADVANCE WHICH HE HAD GIVEN TO THE A SSESSE E. 7 . IN THE CASE OF SMT. SAMIRA ABBAS, IT IS STATED THAT THE AMOUNT WAS ADJUSTED NEXT YEAR BY SUPPLYING ORNAMENTS TO HER. AS FAR AS THE SUPPLY OF ORNAMENTS IN LIEU OF ADVANCE IS CONCERNED, , THE ASSESSEE HAS PRODUCED COPY OF SALE REGISTER FOR THE RELEVANT D ATE, COPY OF BILLS RAISED DATED 22.06.2012 RELEVANT TO A.Y. 2013 - 14 BEARING INVOICE NO. GS0045, GS0046 AND DS0013, COPY OF STOCK REGISTER AS ON 22.06.12 FOR 18 KT GOLD, 22 KT GOLD AND DIAMONDS WHICH REFLECT THE OUTWORD ENTRY FOR USE OF THESE ITEMS FOR MAKI NG JEWELLERY FOR SAMIRA ABBAS. THE AMOUNT OF RS. ` 50,00,000/ - WAS ADVANCED IN APRIL 2011. IT WAS SUBMITTED THAT AO MADE WRONG ADDITIONS BY HOLDING THAT SMT. SAMIRA ABBAS WAS NOT AVAILABLE AT THE GIVEN ADDRESS . IT WAS SUBMITTED THAT THE AO HAD WRONGLY CONCL UDED THAT ASSESSEE HAD NO T REPLIED THE SHOW CAUSE NOTICE AND THUS THE ADVANCE AGAINST ORDERS WERE UNEXPLAINED CASH CREDITS AS THE ASSESSEE HAS FAILED TO PROVE THE IDENTITY AND GENUINENESS OF THE PARTIES. IT WAS ALSO SUBMITTED THIS STAND OF THE AO WAS WRONG AS D URING THE COURSE OF ASSESSMENT PROCEEDINGS , THE ASSESSEE HAD SUBMITTED ALL THE DOCUMENTS TO ESTABLISH THE IDENTIT Y , GENUINENESS OF TRANSACTIONS AS MENTIONED HEREINABOVE. IN SUPPORT OF HIS CONTENTION , LD. A.R. RELIED UPON THE DOCUMENTS WHICH WERE SUBMITTED BEFORE THE LOWER AUTHORITIES AND ALSO RELIED UPON THE JUDGEMENT IN THE FOLLOWING CASES: ITA NO. 342 /MUM/ 2017 M/S. KARSANDAS LAKHMAN JHAVERI / ACIT, CIRCLE 18(2) 5 I . CIT VS. ORCHID INDUSTRIES (P) LTD. 88 TAXMANN.COM 502 (BOM) II . CIT VS. GAGANDEEP INFRASTRUCTURE (P) LTD. 80 TAXMANN.C OM 272 (BOM) III . CRYSTAL NETWORKS (P) LTD. VS. CIT 35 TAXMANN.COM 432 (CAL) 8 . ON THE CONTRARY LD. D.R. RELIED UPON THE ORDERS PASSED BY REVENUE AUTHORITIES AND SUBMITTED THAT THE ASSESSEE HAD SUBMITTED THE DOCUMENTS WHICH WERE IN NO WAY PROVE THE GENUINENE SS OR IDENTITY OF THE PARTIES. IT WAS ALSO ARGUED THAT THE ASSESSEE FAILED TO PRODUCE THE PARTIES, THEIR INCOME TAX RETURN DETAILS AND CONFIRMATION LETTERS FROM THEM. IT WAS ALSO SUBMITTED THAT T HE ADDRESSES PROVIDED BY THE ASSESSEE WERE BOGUS AND BOTH THE BUIL DINGS WHERE THE PARTIES WERE SUPPOSED TO LIVE WERE UNDER RENOVATION AND T HE ASSESSEE HAD NOT FURNISHED THE CORRECT ADDRESSES. IT WAS SUBMITTED THAT THE ASSESSEE HAD MISERABLY FAILED IN DISCHARGING THE PRIMARY ONUS CAST UPON IT IN PROVING THE GENUINENESS OF THE TRANSACTIONS AND THE IDENTITY OF THE CREDITORS. IN VIEW OF THIS, LD. DR SUBMITTED THAT THERE IS NO SUBSTANCE IN THESE GROUND S OF APPEAL AND REQUESTED FOR DISMISSAL OF THE APPEAL. 9 . WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES AND WE HAVE ALSO PERUSE D THE MATERIAL AVAILABLE ON RECORD AND THE ORDERS PASSED BY THE REVENUE AUTHORITIES AND THE JUDGEMENTS CITED BY THE PARTIES. AS PER THE FACTS OF THE PRESENT CASE, IT IS AN UNDIS PUTED FACT THAT THE ASSESSEE HAD RECEIVED A SUM OF ` 1.5 CRORES AND ` 75 LAKHS FR OM SHRI QUASIM MOHD YOUSUF A BASTAK AND SMT. SAMIRA ABBAS RESPECTIVELY. IN THIS REGARD IT WAS SUBMITTED THAT ASSESSEE HAD RECEIVED THE ABOVE AMOUNT S BY WAY OF A DVANCE AGAINST ORDER. IN THIS REGARD, VIDE LETTER DATED 11.03.15, THE ASSESSEE HAD SUPPLIED ALL THE DETAILS ON RECORD. THE ASSESSEE HAD ALSO PLACED ON RECORD THE CONFIRMATION IN THE CA S E OF SMT. SAMIRA ABBAS IN ORD ER TO SHOW THAT THE ASSESSEE HAD ALREADY SOLD ORNAMENTS TO HER ON 22.06.2012. IN THIS REGARD CONFIRMATION O F SMT SAMIRA ABBAS, COPY OF SALE REGISTER FOR THE RELEVANT DATE, COPY OF LEDGER ACCOUNT OF SAMIRA ABBAS IN THE BOOKS OF THE ASSESSEE FROM 01.04.2011 TILL DATE, COPY OF SALES INVOICES ITA NO. 342 /MUM/ 2017 M/S. KARSANDAS LAKHMAN JHAVERI / ACIT, CIRCLE 18(2) 6 ISSUED BY OUR CLIENT TO SAMIRA ABBAS DATED 22.06.2013 BEARING INVOICE NO S. GS 0045, GS 0046 AND DS 0023, COPY OF STOCK REGISTER AS ON 22.06.2013 FOR 18 KT. GOLD, 22 KT. GOLD AND DIAMONDS WHICH REFLECT THE OUTWARD ENTRY FOR USE OF THESE ITEMS FOR MAKING JEWELLERY FOR SAMIRA ABBAS WERE ALSO BEEN FILED CONFIRMATION FILED BY THE A SSESSEE BEARS THE SIGNATURES OF SMT. SAMIRA ABBAS. . 10 . IN THE CASE OF SHRI QASSIM MOH. YOUSUF A BASTAKI THE ASSESSEE VIDE LETTER DATED 11.03. 15 HAD PLACED ON RECORD THE CONFIRMATION OF SHRI BASTAKI WITH DETAILS OF DATE AND BANK FROM WHICH HE HAD GIVEN ADVANC E TO THE ASSESSEE, PAN DETAILS ALONG WITH DETAILS OF AO, BANK STATEMENT OF BASTAKI HIGHLIGHTING THE ENTRIES FOR ADVANCE GIVEN TO THE ASSESSEE. 11 . AFTER HAVING GONE THROUGH THE RECORD WE FOUND THAT THE AO HAD MADE THE ADDITION BY HOLDING THAT THE ASSESSEE HA D NOT OFFERED SATISFACTORY EXPLANATION REGARDING CREDIT OF THE ABOVE AMOUNTS AND THE ASSESSEE HA D FAILED TO ESTABLISH THE IDENTITY OF PARTIES. 12 . IN ORDER TO DECIDE THE ISSUE , IT IS NECESSARY TO LOOK INTO THE PROVISIONS OF SECTION 68 OF THE ACT, WHICH ARE REPRODUCED BELOW: - ''WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF AN ASSESSEE MAINTAINED FOR ANY PREVIOUS YEAR, AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE THEREOF OR THE EXPLANATION OFFERED BY HIM IS NOT, IN THE OPINION OF THE {ASSESSING] OFFICER, SATISFACTORY, THE SUM SO CREDITED MAY BE CHARGED TO INCOME TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR: PROVIDED THAT WHERE THE ASSESSEE IS A C OMPANY (NOT BEING A COMPANY IN WHICH THE PUBLIC ARE SUBSTANTIALLY INTERESTED), AND THE SUM SO CREDITED CONSISTS OF SHARE APPLICATION MONEY, SHARE CAPITAL, SHARE PREMIUM OR ANY SUCH AMOUNT BY WHATEVER NAME CALLED, ANY EXPLANATION OFFERED BY SUCH ASSESSEE CO MPANY SHALL BE DEEMED TO BE NOT SATISFACTORY, UNLESS - (A) THE PERSON, BEING A RESIDENT IN WHOSE NAME SUCH CREDIT IS RECORDED IN THE BOOKS OJ SUCH COMPANY ALSO OFFERS AN EXPLANATION ABOUT THE NATURE AND SOURCE OF SUCH SUM SO CREDITED; AND (B) SUCH EXPLAN ATION IN THE OPINION OF THE ASSESSING OFFICER AFORESAID HAS BEEN FOUND TO BE SATISFACTORY; ITA NO. 342 /MUM/ 2017 M/S. KARSANDAS LAKHMAN JHAVERI / ACIT, CIRCLE 18(2) 7 PROVIDED FURTHER THAT NOTHING CONTAINED IN THE FIRST PROVISO SHALL APPLY IF THE PERSON, IN WHOSE NAME THE SUM REFERRED TO THEREIN IS RECORDED, IS A VENTURE CAPITAL F UND OR A VENTURE CAPITAL COMPANY AS REFERRED TO IN CLAUSE (23FB) OF SECTION 10 . FROM THE ABOVE DEFINITION IT IS CLEAR THAT WHENEVER ANY SUM IS FOUND CREDITED IN THE BOOKS OF THE ASSESSEE MAINTAINED FOR ANY PREVIOUS YEAR AND IF THE ASSESSEE OFFERS NO EX PLANATION ABOUT THE NATURE AND SOURCE THEREOF THEN IN THAT EVENTUALITY THE SAME CAN BE CHARGED TO INCOME TAX AS INCOME OF THE ASSESSEE FOR THAT PREVIOUS YEAR. AS FAR AS THE NATURE AND SOURCE OF THE ABOVE MENTIONED AMOUNTS ARE CONCERNED , THE ASSESSEE HAS CLEARLY MENTIONED FROM TIME TO TIME AT VARIOUS OCCASIONS THAT THE AMOUNTS HAD BEEN RECEIVED AS A DVANCE AGAINST ORDER AND THE SAME ARE RECORDED IN THE BOOKS AS WELL. AS REGARDS THE SOURCE OF THE AMOUNT IS CONCERNED , IN THIS RESPECT, THE ASSESSEE HAD S UBMITTED THE ABOVE DETAILED DOCUMENTS IN RESPECT OF BOTH THE PARTIES FROM WHOM THE AMOUNTS HAD BEEN RECEIVED. HOWEVER, THE AO HAD MADE ADDITIONS ONLY ON THE GROUND THAT THE ASSESSEE HAD NOT PRODUCED THE PARTIES AND DETAILS . AT THE SAME TIME, IT WAS ALSO M ENTIONED THAT THE NOTICE UNDER SECTION 133(6) OF THE ACT WHEN SENT TO THE ABOVE PERSONS HAD COME BACK AND THE INSPECTOR OF THE AO WHO WAS SENT FOR SPOT ENQUIRY FOUND THE PLACES WHERE THE PARTIES WERE SUPPOSED TO HAVE BEEN RESIDING THE SAID BUILDINGS WERE U NDER RENOVATION . WE FOUND THAT THERE ARE DOCUMENTS IN THE SHAPE OF CONFIRMATION, PAN, BANK RECORDS, LEDGER ACCOUNTS, BILLS, CONFIRMATION, ETC. BUT THE SE DOCUMENTS HAD NOT BEEN CONSIDERED OR MENTIONED IN THE ORDERS PASSED BY THE REVENUE AUTHORITIES. THE STAND OF LD. D.R. THAT THESE DOCUMENTS WERE NOT FIL ED BEFORE THE LOWER AUTHORITIES, STANDS FALSIFIED AS ON THE PERUSAL OF THE RECORD, WE F IND THAT THE ASSESSEE HAD ALREADY FIELD THOSE DOCUMENTS VIDE LETTER DATED 11.03.2015 AND THIS FACTUAL POSITION IS CATE GORICALLY MENTIONED IN THE STATEMENT OF FACTS WHICH WAS FILED BEFORE THE LD. CIT(A) . IN ADDITION, THE ITA NO. 342 /MUM/ 2017 M/S. KARSANDAS LAKHMAN JHAVERI / ACIT, CIRCLE 18(2) 8 ASSESSEE HAD ALSO FILED A DETAILED AFFIDAVIT OF SHRI AMIT PRAMOD KHATIWALA, PARTNER OF THE FIRM M/S. JITENDERA SANGHAVI & CO., AUTHORISED REPRESENTATIVE W HEREIN IT HAS CATEGORICALLY BEEN MENTIONED THAT DU RING THE ASSESSMENT PROCEEDINGS, THE DEPONENT HAD ATTENDED THE HEARING AND MADE SUBMISSIONS ON BEHALF OF THE ASSESSEE AND VIDE LETTER DATED 11.03.2015 PRO VIDED ALL THE ABOVE DETAILS IN RESPONSE TO AOS QUES TIONNAIRE DATED 03.03.2015. IN THIS RESPECT THE DETAILS OF THE AFFIDAVIT ARE REPRODUCED BELOW: - AFFIDAVIT I, AMIT PRAMOD KHATIWALA, PARTNER OF THE FIRM M/S. JITENDRA SANGHAVI & CO. AUTHORISED REPRESENTATIVES OF ASSESSEE M/S. KARSANDAS L. JHAVERI OF 219, SHAIKH MEMON STREET, ZAVERI BAZAAR, MUMBAI - 400 002 HAVING PAN : AAAFK3837B HEREBY SOLEMNLY AFFIRM UNDER OATH AND STATE AS UNDER: 1. THE FIRM M/S. KARSANDAS L. JHAVERI WAS ASSESSED TO INCOME T AX UNDER THE JURISDICTION OF ACIT, CIRCLE 18(2), MUMBAI FOR A Y.2012 - 13. 2. DURING THE ASSESSMENT PROCEEDINGS OF M/S. KARSANDAS L. JHAVERI FOR A.Y.2012 - 13, I AS THEIR AUTHORISED REPRESENTATIVE ATTENDED THE HEARINGS AND MADE SUBMISSIONS ON THEIR BEHALF BEFO RE THE ACIT, CIRCLE 18(2), MUMBAI. 3. THE LETTER DATED 11.3.2015 FILED DURING THE ASSESSMENT PROCEEDINGS, GIVING DETAILS IN RESPONSE TO ASSESSING OFFICER'S QUESTIONNAIRE DATED 3.3.2015, WITH RESPECT TO SUPPORTING DOCUMENTS FOR IDENTITY, GENUINENESS AND CRE DITWORTHINESS OF MR. QASSIM MOHD. YOUSUF A. BASTAKI AND MS SAMIRA ABBAS, WAS INFACT FILED BY ME BEFORE THE ASSESSING OFFICER ON 11.3.2015 ITSELF ALONGWITH ALL THE SUPPORTING DOCUMENTS MENTIONED IN THAT LETTER. 4. THAT THE ASSESSING OFFICER AT PARA 7.2 OF T HE ASSESSMENT ORDER U/S. 143(3) FOR A.Y.2012 - 13 ACKNOWLEDGES THE DETAILS FILED AT SR.NO.2 OF THE LETTER DATED 11.3.2015 WITH RESPECT TO TRANSACTIONS OF THE ASSESSEE WITH MS SAMIRA ABBAS. THE ASSESSING OFFICER HAS NOT ACKNOWLEDGED/ TAKEN INTO CONSIDERATION T HE DETAILS FILED AT SR.NO. 1 OF THE VERY SAME LETTER DATED 11.3.2015 WITH RESPECT TO TRANSACTIONS WITH MR. QASSIM MOHD. YOUSUF A. BASTAKI WHILE PASSING THE ASSESSMENT ORDER U/S. 143(3). 5. DURING THE COURSE OF APPELLATE PROCEEDINGS IN THE APPEAL BEFORE CIT (A) - 29, MUMBAI AGAINST THE ORDER U/S. 143(3), A PAPERBOK CONTAINING PAGES 1 TO 67 WAS FILED BEFORE THE CIT(A) ON 17.8.2016. THE CONTENTS OF THE SAID PAPERBOOK ARE AS UNDER: - ITA NO. 342 /MUM/ 2017 M/S. KARSANDAS LAKHMAN JHAVERI / ACIT, CIRCLE 18(2) 9 S.NO. PARTICULARS PAGE NOS. 1. COPY OF ACKNOWLEDGEMENT OF RETURN OF INCOME 1 2. COMPUTATION OF INCOME 2 - 4 3. AUDIT REPORT U/S.44AB & AUDITED STATEMENTS OF ACCOUNT FOR THE YEAR ENDED 31. 3.2012 5 - 51 4. LETTER DATED 11.3.2015 FILED BEFORE THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS 52 - 53 5. CONFIRMATION OF QASSIM MOHD. 54 6. PAN DETAILS WITH DETAILS OF ASSESSING OFFICER 55 - 56 7. BANK STATEMENT OF QASSIM MOHD. 57 - 58 8. COPY OF SALES REGISTER FOR 22.6.2012 59 9. COPY OF LEDGER ACCOUNT OF SAMIRA ABBAS FROM 1.4.201 1 TO 22.6.2012 60 10. COPY OF SALES INVOICES ISSUED TO SAMIRA ABBAS 61 - 63 11. COPY OF STOCK REGISTER AS ON 22.6.2012 64 - 66 12 DETAILS OF ADVANCES AGAINST ORDER AS ON 31.3.2012 67 THUS THE DOCUMENTS AS CONTAINED IN LETTER DATED 11.3.2015 FILED BEFORE ASSESSING OFFICER WERE ALSO SUBMITTED TO CIT(A). SOLEMNLY AFFIRMED AT MUMBAI ON THIS 5 TH DAY OF SEPTEMBER, 2018 SD/ - AMIT PRAMOD KHATIWALA 13 . ON THE OTHER HAND, INITIALLY, N O COUNTER AFFIDAVIT WAS FILED BY THE REVENUE , BUT DIRECTIONS WERE GIVEN TO THE REVENUE TO FILE AFFIDAVIT AND THE MATTER WAS AGAIN POSTED ON 12.10.18 . O N THIS DAY , LD. DR FILED AN AFFIDAVIT DATED 10.10.18. FIRST OF ALL , THE AFFIDAVIT FILED BY THE REVENUE CO NTAINS NO VERIFICATION. IT MENTIONS THAT LETTER DATED 11.03.15 IS ON RECORD OF THE REVENUE, BUT IT NOWHERE MENTION THAT DOCUMENTS CONTAINED IN LETTER DATED 11.03.15 ARE NOT ON RE CORD WITH THE REVENUE. O N THE CONTRARY, A DETAILED AFFIDAVIT HAD ALREADY BEEN FILED BY THE ASSESSEE WHICH CLEARLY M ENTIONS THAT LETTER DATED 11.03.15 CONTAINS DOCUMENTS AT SERIAL NO. 1 TO 12 . THE ASSESSEE HAS ALSO MENTIONED IN THE AFFIDAVIT THAT THE DOCUMENTS AS CONTAINED IN THE LETTER DATED 11.03.15 WERE ALSO FILED BEFORE LD. CIT(A ) AS ITA NO. 342 /MUM/ 2017 M/S. KARSANDAS LAKHMAN JHAVERI / ACIT, CIRCLE 18(2) 10 WELL. THIS FACT FOUND SUPPORT FROM THE COPY OF STATEMENT OF FACTS FILED BEFORE LD. CIT(A) . APART FROM ABOVE, THE AFFIDAVIT DATED 10.10.18 FILED BY THE REVENUE, ALSO MENTIONS THAT ASSESSMENT ORDER WAS PASSED ON 11.03.15, WHEREAS LD. AR DRAWN OUR ATT ENTION TO COMPUTER GENERATED INCOME TAX COMPUTATION FORM, WHERE THE DATE OF ORDER HAS BEEN MENTIONED BY THE REVENUE AS 16.03.15, THEREFORE KEEPING IN VIEW THE ABOVE DISCREPANC IES, WE ARE OF THE VIEW THAT AFFIDAVIT FILED BY THE REVENUE IS EVASIVE AND DO NOT INSPIRE CONFIDENCE. THUS , WE FIND THAT ALL THE RELEVANT DO CUMENTARY EVIDENCES MENTIONED BY THE ASSESSEE WERE AVAILABLE ON RECORD OF THE REVENUE . HENCE THE ASSESSEE CANNOT BE MADE TO SUFFER, BECAUSE OF THE LAXITIES, IN - ACTION ON THE PART OF THE REVENUE,. 14 . WE HAVE GONE THROUGH THE JUDGEMENTS TITLED ORCHID INDUSTRIES (P) LTD. (SUPRA) WHEREIN IT WAS HELD AS UNDER: - SECTION 68 OF THE INCOME - TAX ACT, 1961 CASH CREDIT (SHARE APPLICATION MONEY) WHERE ASSESSEE HAD PRODUCED ON RECORD DOCUMENTS TO ESTABLISH GENUINENESS OF PARTY SUCH AS PAN OF ALL CREDITORS ALONG WITH CONFIRMATION, THEIR BANK STATEMENTS SHOWING PAYMENT OF SHARE APPLICATION MONEY, ONLY BECAUSE THOSE PERSONS HAD NOT APPEARED BEFORE ASSESSING OFFICER WOULD NOT NEGATE CASE OF ASSESSEE SO AS TO INV OKE SECTION 68. CIT VRS. GAGANDEEP INFRASTRUCTURE PVT. LTD. (2017) 80 TAXMAN.COM 272, WHEREIN IT WAS HELD THAT IT WAS FOR THE REVENUE TO PROCEED BY REOPENING ASSESSMENT OF SUCH PAERSONS AND ASSESSING THEM TO TAX WHO HAD PAID ADVANCES AND NOT TO ADD SAME T O ASSESSEES INCOME AS UNEXPLAINED CASH CREDIT. CIT VRS. CREATIVE WORLD TELEFILMS LTD. (2011) 333 ITR 100 (BOM), WHEREIN IT WAS HELD THAT WHEN THE ASSESSEE HAD GIVEN THE DETAILS OF NAME, PAN NO. AND ALSO GIVEN THE CHEQUE NOS, NAME OF BANK STATEMENTS THEN IT WAS EXPECTED ON THE PART OF AO TO MAKE PROPER INVESTIGATIONS AND NOT TO MAKE ADDITIONS IN THE CASE OF ASSESSES.. ON SAME PRINCIPLES, THE HONBLE SUPREME COURT IN THE CASE OF CIT VRS. ORISSA CORP PVT. LTD. 1986 25 TAXMAN80F , ACIT VRS. SWIFT SOLE INDIA PVT. LTD. (2018) 95 TAXMAN. 286, CRYSTAL NETWORKS VRS. CIT (2013)33 TAXAMN.COM 432, HONBLE DELHI HIGH COURT IN THE CASE OF CIT VRS. VALUE CAPITAL SERVICES PVT. LTD. (2008) 307 ITR 334, YASH DEVELOPERS VRS. DCIT, (ITAT - MUM), HONBLE DELHI HIGH COURT IN ITA NO. 342 /MUM/ 2017 M/S. KARSANDAS LAKHMAN JHAVERI / ACIT, CIRCLE 18(2) 11 THE CASE OF CIT VRS. WINSTRAL PETRO CHEMICALS PVT. LTD. (2011) 10 TASMAN.COM 137. IN ALL THE ABOVE CASES, IT HAS BEEN HELD THAT WHERE ALL THE DOCUMENTS ARE GENUINE THEN THE ADDITIONS COULD NOT BE MADE AS CASH CREDIT FOR ADVANCES RECEIVED FROM THE CUSTOMERS. M ORE PARTICULARLY, WHEN THE ASSESSEE HAD GIVEN THE NAME AND ADDRESSES OF THE ALLEGED CREDITORS. 15 . HAVING GONE THROUGH THE FACTS, MATERIAL AS WELL AS THE JUDICIAL PRONOUNCEMENTS MENTIONED ABOVE WE FOUND THAT THERE ARE SERIES OF ORDERS OF THE HON'BLE JURISDIC TIONAL HIGH COURT WHEREIN IT IS CLEARLY MENTIONED T HAT WHEN THE ASSESSEE PRODUCE ON RECORD DOCUMENTS TO ESTABLISH THE GENUINENESS OF PARTY SUCH AS PAN ALONG WITH CONFIRMATION, BANK STATEMENT SHOWING PAYMENT THEN ONLY BECAUSE THOSE PERSONS HAD NOT APPEARED BEFORE THE AO , WOULD NOT NEGATE THE CASE OF THE ASSESSEE SO AS TO INVOKE SECTION 68 OF THE ACT. APART FROM THIS THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF GAGANDEEP INFRASTRUCTURE P. LTD. (SUPRA ) CATEGORICALLY MENTIONED THAT WHERE THE ASSESSEE HAD ESTABLISHED IDENTITY, GENUINENESS AND CAPACITY OF THE PERSONS WHO HAD PAID THE AMOUNT, AO IS NOT JUSTIFIED IN ADDING THE AMOUNT OF UNEXPLAINED CREDIT. IT WAS FURTHER HELD THAT IT WAS FOR THE INCOME TAX OFFICERS TO PROCEED BY REOPENING THE ASSESSMENT OF SUCH PERSONS AND ASSESSING THEM TO TAX IN ACCORDANCE WITH LAW AND IT DID NOT ENTITLE REVENUE TO ADD SAME TO ASSESSEES INCOME AS UNEXPLAINED CASH CREDIT. 16 . WE HAVE ALSO GONE THROUGH THE JUDGEMENT OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CO - O PERATIVE CENTRALE REIFFEISEN BOERENLEENBANK B.A. VS. DCIT 97 TAXMANN.COM 24 (BOM) WHEREIN IT WAS HELD THAT WHERE THERE WAS ALL RELEVANT DOCUMENTARY EVIDENCE AVAILABLE ON RECORD TO PROVE THE FACTS THE N THE TRIBUNAL COULD NOT HAVE REMANDED BACK THE MATTER T O THE AO FOR FRESH CONSIDERATION ESPECIALLY WHEN THE AO HAS NOT DISCHARGED THE BURDEN OF PROVING THE FACTS. 17 . IN THE PRESENT CASE, SINCE THE ASSESSEE FROM THE VERY BEGINNING HAD FURNISHED THE REQUIRED DOCUMENTS ALONG WITH EVIDENCES AND DISCHARGED HIS ITA NO. 342 /MUM/ 2017 M/S. KARSANDAS LAKHMAN JHAVERI / ACIT, CIRCLE 18(2) 12 PRIMAR Y ONUS , BUT THE AO HAS FAILED TO DISCHARGE HIS ONUS. THEREFORE FOLLOWING THE RATIO LAID DOWN BY THE JUDGEMENTS CITED ABOVE AND KEEPING IN VIEW THE PRINCIPLES OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CO - OPERATIVE CENTRALE REIFFEISEN BOERENLEENBAN K B.A. VS. DCIT 97 TAXMANN.COM 24 (BOM) (SUPRA), WE ALLOW THE SE GROUND S RAISED BY THE ASSESSEE AND DIRECT THE AO TO DELETE THE ADDITIONS. 18 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED WITH NO ORDER AS TO COST. 19 . ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH OCTOBER , 2018. SD/ - SD/ - ( N.K. PRADHAN ) ( SANDEEP GOSAIN ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 12 OCTOBER , 2018 COPY TO: 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) - 29 , MUMBAI 4 . THE CIT - 18 , MUMBAI 5 . THE DR, H BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.