ITO, New Delhi V. Mrs. Sumitra Gupta, New Delhi

ITA 3482/DEL/2010

• Counselvise Citation: 348220114 RSA 2010
• Duration Of Justice: 2 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 07-08-2012
• Assessment Year: 2002-2003
• Appeal Filed On: 16-07-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SURJANI MOHANTY
• Keywords: Reopening of assessment; Opportunity of being heard; Accommodation entries; Onus to prove; Reason to believe
• Section: 142(1); 133(6); 131; 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F NEW DELHI) BEFORE SHRI I.C. SUDHIR, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A. NO.3482/DEL/2010 ASSESSMENT YEAR : 2002-03 ITO, SMT.SUMITRA GUPTA, WARD-35 (4), C-511, YOJNA VIHAR, NEW DELHI. V. NEW DELHI. (APPELLANT) (RESPONDENT) PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO.AARPG AARPG AARPG AARPG- -- -9600 9600 9600 9600- -- -P PP P APPELLANT BY : SMT. SURJANI MOHANTY, SR. DR. RESPONDENT BY : SHRI ANIL SHARMA, ADVOCATE. ORDER PER TS KAPOOR, AM: THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE OR DER OF LD CIT(A) DATED 20/.1.2010. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD CIT( A) HAS ERRED IN DELETING THE ADDITION OF ` .16,00,000/- MADE BY THE ASSESSING OFFICER U/S 68 OF THE INCOME TAX ACT, 1961 . 2. THE LD CIT(A) HAS ERRED IN DELETING THE ADDITION O F ` .32,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF COMMISSION P AID FOR ACCOMMODATION ENTRY U/S 68 OF THE INCOME TAX ACT, 19 61. 3. THE APPELLANT CRAVES LEAVE FOR RESERVING THE RIGHT T O AMEND, MODIFY ALTER OR FOREGO ANY GROUND(S) OF APPEAL AT AN Y TIME BEFORE OR DURING THE HEARING OF THIS APPEAL. ITA NO3482/DEL/2010 2 2. THE BRIEF FACTS OF THE CASE ARE THAT THE CASE OF TH E ASSESSEE WAS REOPENED U/S 148 ON THE BASIS OF INFORMATION RECEIVED FROM DCIT (INV.). THE ASSESSEE IN HER REPLY AGAINST THE NOTICE U/S 148 STATE D THAT THE RETURN ORIGINALLY FILED BY HER MAY BE TREATED AS RET URN FILED IN RESPONSE TO NOTICE U/S 148 OF THE ACT. THE INFORMATION WITH T HE ASSESSING OFFICER WAS THAT THE ASSESSEE HAD RECEIVED AN AMOUNT OF ` .5,00,000/- THROUGH CHEQUE ON 22.8.2001 FROM ENTRY OPERATOR SHRI AJAY B ANSAL. DURING ASSESSMENT PROCEEDINGS AND ON PERUSAL OF BANK STATEMENT O F ASSESSEE HE NOTED THAT IN ALL AN AMOUNT OF ` .16,00,000/- WAS ACCEPTED FROM FOUR PERSONS INCLUDING MR. AJAY BANSAL ON DIFFERENT DATES. THE LD AR OF THE ASSESSEE EXPLAINED THAT ALL THESE ENTRIES WERE LOANS TAKEN BY THE ASSESSEE AND FILED CONFIRMATIONS SIGNED BY FOUR PERSONS A LONG WITH THEIR COPIES OF RETURN. THE ASSESSING OFFICER HARBOURDED A BELIEF THAT THESE LOANS WERE NOT GENUINE AS HE FELT THAT LOANS WERE RAISED IN A SYSTEMATIC MANNER THROUGH AN ENTRY OPERATOR WHO USED T O PROVIDE ENTRIES IN LIEU OF SOME COMMISSION. THE ASSESSING OFFICER A SKED THE LD AR VIDE ORDER SHEET ENTRY DATED 21.12.2009 TO PRODU CE ALL THE FOUR PERSONS FROM WHOM THE LOAN HAS BEEN CLAIMED TO HAVE BE EN TAKEN. THE LD AR WAS NOT ABLE TO PRODUCE ALL THE FOUR PERSON S. THEREFORE, THE ASSESSING OFFICER HELD THAT CREDITWORTHINESS OF THE FOUR PERSONS AND GENUINENESS OF THE TRANSACTIONS WERE NOT PROVED BY THE ASSESSEE. THEREFORE, AFTER DISCUSSING THE PROVISIONS OF SECTION 68 OF THE ACT, HE MADE AN ADDITION OF ` .16,00,000/- U/S 68 OF THE INCOME TAX ACT, 1961. A FURTHER ADDITION OF ` .32,000/- WAS MADE ON ACCOUNT OF ALLEGED 2% COMMISSION ALLEGED TO HAVE BEEN PAID BY THE ASSESSEE FOR OBTAINING THE ENTRIES. 3. DISSATISFIED WITH THE ASSESSMENT ORDER, THE ASSESSEE FILED AN APPEAL BEFORE LD CIT(A) AND SUBMITTED AS UNDER:- ITA NO3482/DEL/2010 3 I) THE LD ASSESSING OFFICER HAD REOPENED THE ASSESSMENT SOLELY BASED UPON THE REPORT OF DIT (INV.) AND HE HAD NOT M ADE ANY ENQUIRY ON HIS OWN BEFORE REOPENING OF ASSESSMENT. HE D ID NOT VERIFY INDEPENDENTLY THAT HOW MUCH INCOME HAD E SCAPED. II) IN 147 PROCEEDINGS, THE PRIMARY ONUS IS UPON THE ASSESSIN G OFFICER TO CONFRONT THE ASSESSEE WITH THE MATTER ON THE BASIS OF WHICH IT IS BELIEVED THAT SOME INCOME HAS ESCAPED ASSESSMENT . RELIANCE WAS PLACED ON THE DECISION OF HON'B LE DELHI HIGH COURT IN THE CASE OF PRADEEP KUMAR GUPTA REPORTED IN 207 CTR 115. III) DURING ASSESSMENT PROCEEDINGS THE ASSESSEE HAD FILED ALL INFORMATION ABOUT THESE PERSONS WHO HAD PROVIDED LOANS TO HER AND SHE HAD RECEIVED LOANS THROUGH ACCOUNT PAYEE CHEQUES AND DEPOSITORS ARE REGULAR INCOME TAX PAYEES A ND DURING ASSESSMENT PROCEEDINGS THE ASSESSEE HAD FILED CONFIRMATION, IT RETURNS, TO PROVE THE GENUINENESS OF TRANSACTION. IV) DURING ASSESSMENT PROCEEDINGS ASSESSEE MADE REQUEST TO LD ASSESSING OFFICER TO ISSUE NOTICE AND CALL PERSONS FOR CROSS EXAMINATION. THE LD ASSESSING OFFICER DID NOT EVEN ISSUE NOTICE U/S 131 /133(6) AND MADE THE ADDITIONS WITHOUT DOING ANY EXERCISE ON HIS OWN. V) THAT IT HAS BEEN DECIDED IN A NUMBER OF CASES THAT IT IS THE DUTY OF ASSESSING OFFICER TO PROVE INGENUINENESS OF THE TRANSACTION. THE ASSESSING OFFICER NEITHER FOLLOWED THE LAW WHILE ISSUING NOTICE U/S 148 NOR CARRIED OUT ANY INVEST IGATION ON MERIT. 4. THE LD CIT(A) AFTER HEARING THE SUBMISSIONS OF LD A R DECIDED THE FIRST GROUND IN FAVOUR OF THE REVENUE AND HELD THAT REOPENING WAS ITA NO3482/DEL/2010 4 JUSTIFIED U/S 147/148 OF THE ACT AND IN RESPECT OF GR OUND NOI,.2 REGARDING MERITS OF THE CASE SHE DECIDED IN FAVOUR OF THE ASSESSEE AND DELETED THE ADDITION. THE RELEVANT PARAGRAPH OF LD CIT(A)S ORDER IS REPRODUCED BELOW:- IT WAS FOR THE ASSESSING OFFICER TO ENFORCE THE ATTENDA NCE OF THE WITNESS (LOAN CREDITORS) IF HE HAD REASON TO DISBELIEVE THAT THE EVIDENCE BROUGHT ON RECORD BY THE APPELLANT IS MALAF IDE. WITHOUT EXAMINING THE LOAN CREDITORS UNDER OATH, WITHOUT ISSUI NG A NOTICE U/S 133(6) OR 142(1) THE ASSESSING OFFICER MERELY CONCLU DED THAT THE CREDIT APPEARING IN THE BOOKS OF THE APPELLANT O N ACCOUNT OF THE LOANS OBTAINED ARE BOGUS. IN MY CONSIDERED VIEW, T HE APPELLANT HAS DISCHARGED THE BURDEN OF PROOF BY SUBMI TTING THE FOLLOWING DOCUMENTS AT THE TIME OF SCRUTINY: A) BANK STATEMENT OF SMT. SUMITRA GUPTA EVIDENCING THE RECEIPT OF LOAN OF ` .16 LAKHS FROM THE PERSONS CITED. B) AFFIDAVITS & TAX RETURN ACKNOWLEDGEMENT OF THE LOAN CREDITORS WHICH GOES TO PROVE THAT THEY ARE GENUINE AND IDENTI FIABLE. THE ASSESSING OFFICER FAILED TO BRING ON RECORD ANY MAT ERIAL EVIDENCE GATHERED TO PROVE THAT THE LOANS OBTAINED A RE BOGUS AND THAT THEY DO NOT STAND THE TEST OF SCRUTINY. IN O THER WORDS, HE DID NOT TEST THE CLAIM OF THE ASSESSEE. THE ASSESSING OFFICE R HAD THE BURDEN ON HIS SIDE TO DISPROVE THE CLAIM OF THE AP PELLANT AS WRONG. EVEN THE ASSESSING OFFICER DID NOT GIVE THE DETA ILED REASONS FOR REOPENING OF THE ASSESSMENT EXCEPT MERELY ST ATING THAT THE INFORMATION RECEIVED FROM OTHER SOURCES INDI CATED AN ACCOMMODATION ENTRY AND THAT HE HAD REASON TO BELIEV E THAT INCOME ESCAPED ASSESSMENT . UP TO THE POINT THAT THERE I S ITA NO3482/DEL/2010 5 REASON TO BELIEVE IS ONE ASPECT AND TO PROVE THE SAID B ELIEF TO BE BASED ON FACTS AND CIRCUMSTANCES IS ANOTHER ASPECT WHICH THE ASSESSING OFFICER FAILED TO BRING ON RECORD. THE ASSESSING OFFICER OUGHT TO HAVE DETAILED IN HIS ORDER THE EVIDENCE GAT HERED BY HIM TO SHOW THAT THE APPELLANT HAS INDULGED IN ACCOMMODAT ION ENTRY. THE ASSESSING OFFICER OUGHT TO HAVE BROUGHT ON RECORD T HE EVIDENCE GATHERED AGAINST SUCH OTHER PERSONS (LOAN CRE DITORS) WHICH GOES TO SHOW THAT THE SAID LOANS OBTAINED BY THE APPELLANT ARE FICTITIOUS. NONE OF THE STANDARD PROCEDURES REQUIR ED TO BE FOLLOWED WAS EVEN ATTEMPTED AND THE ASSESSING OFFICER ME RELY WENT ON CONJECTURES AND SURMISES TO HOLD THAT THE LOANS ARE NOT GENUINE. WHEREAS THE ASSESSEE HAS PROVED WITH EVIDENCE AVAILABLE OF HIS VERACITY OF THE LOANS OBTAINED. ACCO RDINGLY, THE ADDITION MADE BY THE ASSESSING OFFICER U/S 68 OF THE ACT OF A SUM OF ` .16 LAKHS IS BAD IN LAW AND IS THEREFORE DELETED. SIN CE THE SUBSTANTIVE ADDITION OF ` .16 LAKHS DOES NOT SUBSIST ANYMORE, THE ADDITION MADE ON ACCOUNT OF COMMISSION PAID OF ` .32,000/- IS ALSO ACCORDINGLY DELETED. 5. DISSATISFIED WITH LD CIT(A)S ORDER, THE REVENUE HAS FILED APPEAL BEFORE THIS TRIBUNAL. 6. AT THE OUT SET, THE LD DR SUBMITTED THAT THERE IS A TYPOGRAPHICAL MISTAKE IN THE GROUNDS OF APPEAL AND THEREFORE HE REQ UESTED THAT `.10,11,029/- MAY BE READ AS `.16,11,029/-. IN RESPE CT OF MERITS OF THE CASE, HE SUBMITTED THAT NO DEPOSITOR WAS PRODUCED BEFOR E ASSESSING OFFICER DESPITE REQUESTS BY ASSESSING OFFICER. HE FURTHER SUBMITTED THAT IT WAS NOT A CASE OF SHARE APPLICATION MONEY WHEREIN T HE DEPOSIT COULD HAVE BEEN ASSESSED IN THE HANDS OF THE DEPOSITOR BUT THESE WERE LOANS ACCEPTED BY AN INDIVIDUAL. HE FURTHER ARGUED THAT L D CIT(A) HAS NOT ITA NO3482/DEL/2010 6 CONSIDERED THE VITAL POINT OF VERIFYING THE CREDITWO RTHINESS OF DEPOSITORS. THEREFORE, HE TOOK US TO PAGE 17 OF PAPER BOOK WHERE A COPY OF BANK STATEMENT OF ONE OF THE DEPOSITORS SHRI V INODI LAL AGARWAL WAS PLACED. HE INVITED OUR ATTENTION TO THE FACT THAT AMOUNT OF `.5 LAKHS WAS PAID BY DEPOSITOR AGAINST DEPOSIT OF AN EQ UIVALENT AMOUNT ON THE SAME DAY. HE ALSO TOOK US TO PAGE 27 OF PAPER BOOK WHERE COPY OF BANK STATEMENT OF ONE OF THE DEPOSITORS MR. SATISH KUMAR SHARMA WAS PLACED. HE INVITED OUR ATTENTION T HAT `.3 LAKHS WAS DEPOSITED ON 17 TH OCTOBER, 2001 AND CHEQUE IN FAVOUR OF THE ASSESSEE WAS ISSUED ON 19 TH OCTOBER, 2001. SIMILARLY OUR ATTENTION WAS INVITED TO PAGE 35 & 37 OF PAPER BOOK WHERE COPY OF BANK STATE MENT OF REMAINING TWO DEPOSITORS WAS PLACED. HE SHOWED US THE SI MILAR CIRCUMSTANCES WHEREIN `.5 LAKHS WAS DEPOSITED ON 22 ND AUGUST, 2001 AND WAS GIVEN TO ASSESSEE ON THE SAME DAY. HE FURTHER ARG UED THAT THE DEPOSITORS WERE SMALL TIME PERSONS HAVING MEAGER INC OMES OF `.1,03,000/-, `.1,18,000/- & `.1,16,000/-. IN THIS RESPECT OUR ATTENTION WAS INVITED TO PAPER BOOK PAGES 18.,32 & 36 WHEREIN C OPIES OF INCOME TAX RETURNS WERE PLACED. IN VIEW OF THE ABOVE ARGUME NTS, THE LD DR ARGUED THAT MERE PAYMENT BY CHEQUE CANNOT ITSELF JUSI TFTY THE GENUINENESS OF TRANSACTIONS. HE ARGUED THAT EVEN IF PAY MENT BY CHEQUE WAS RECEIVED, THE ASSESSING OFFICER WAS WITHIN HIS RIGHT TO MAKE ADDITION IF CREDITWORTHINESS OF DEPOSITOR WAS NOT PROVED. RELIANCE WAS PLACED IN THE CASE OF COMMISSIONER OF INCO ME-TAX V. T.N.K. AND V. EDUCATIONAL TRUST 233 ITR 820, WHEREI N IT WAS HELD THAT MERE FILING OF COPY OF RETURN WAS NOT SUFFICIENT. SI MILARLY RELIANCE WAS PLACED IN THE CASE OF COMMISSIONER OF INCOME TAX. V. P RECISION FINANCE PVT. LIMITED. 208 ITR 465 WHEREIN IT WAS HELD THAT E VEN IF THE PAYMENT WAS RECEIVED BY CHEQUE ADDITION CAN BE DONE IF OTHER CONDITIONS ARE NOT SATISFIED. ITA NO3482/DEL/2010 7 7. ON THE OTHER HAND, THE LD AR SUBMITTED THAT ASSESSIN G OFFICER HAD INFORMATION ONLY IN RESPECT OF SHRI AJAY BANSAL AND HE SHOULD HAVE CONSIDERED THE AMOUNT RECEIVED FROM SHRI AJAY BANSAL WHILE COMPLETING THE RE-ASSESSMENT PROCEEDINGS. IN RESPECT OF ARGUMENT OF LD DR REGARDING DEPOSIT AND ISSUANCE OF CHEQUE ON THE SAME DAY, THE LD AR ARGUED THAT IF A PERSON ISSUES A CHEQUE IN FAVOUR OF SOME ONE HE HAS TO MAKE ARRANGEMENT OF FUNDS IN THE BANK ACCOUNT SO AS TO MAKE FUNDS AVAILABLE FOR CLEARANCE OF CHEQUE. HE FURTHER ARGUED THT IDENTITY, CREDITWORTHINESS AND GENUINENESS WERE REQUIRED TO BE PR OVED WHEREIN IDENTITY WAS PROVED THROUGH COPY OF PAN, GENUINENESS OF THE DEPOSIT WAS PROVED AS THE TRANSACTIONS WERE THROUGH BANKING C HANNEL AND CREDITWORTHINESS OF THE DEPOSITOR WAS PROVED BECAUSE TH EY WERE ALL ASSESSEES. RELIANCE WAS PLACED ON THE JUDGMENT OF COMMISSIO NER OF INCOME-TAX V. P. MOHANAKALA [2007] 291 ITR 278 (SC) WHEREIN IT WAS HELD THAT WHERE ASSESSEE DOES NOT OFFER ANY OR EXPLANATI ON GIVEN BY HIM IS NOT SATISFACTORY ONLY THEN ADDITION U/S 68 CAN BE MADE. HE, THEREFORE, ARGUED THAT ASSESSEE HAD OFFERED EXPLANATION AND ASSESSING OFFICER HAD NOT FOUND IT TO BE NON SATISFACTORY OTHE R THAN PRODUCTION OF DEPOSITOR, THEREFORE, THE ADDITION WAS NOT WARRANTED. HE FURTHER ARGUED THAT IF LD ASSESSING OFFICER WAS NOT SATISFIED REGARDING THE CREDITWORTHINESS OF DEPOSITOR, HE SHOULD HAVE ISSUED SUMM ONS U/S 133(6) OF THE ACT. HE TOOK US TO PAGE 12 OF PAPER BO OK WHERE LETTER FROM ASSESSEE WAS PLACED WHEREIN ASSESSEE HAD REQUESTED TO ASSESSING OFFICER TO CALL UPON THE DEPOSITORS. RELIANCE W AS PLACED ON THE FOLLOWING JUDGMENTS:- 1. COMMISSIONER OF INCOME-TAX V. ORISSA CORPORATION P. LTD . 159 ITR 78 (ORISSA HIGH COURT). 2. CIT V. ABDUYL AZIZ 251 CTR 58 OR 581 (CHATTISHGARH HIGH COURT) 3. CIT V. EXPO GLOBE INDIA LTD. I.T.A..1257/2012(DELHI ) HIGH COURT. 4. ITO V. EXCELLENCE TOWN PLANNERS LTD. I.T.A.8 71/2010(ITAT DELHI BENCHB) ITA NO3482/DEL/2010 8 HE FURTHER SUBMITTED THAT IN THE NEXT YEAR ALL THESE LOANS WERE REPAID AND ARGUED THAT HAD IT BEEN ACCOMMODATION ENTRIES, I T WOULD HAVE REMAINED THERE IN THE BOOKS. OUR ATTENTION WAS INVITE D TO PAGE 47 OF THE PAPER BOOK WHERE A COPY OF STATEMENT OF AFFAIRS OF ASSESSEE AS ON 31.3.2003 WAS PLACED. HE DREW OUR ATTENTION TO THE LIABILITY SIDE OF STATEMENT OF AFFAIRS WHEREIN NO UNSECURED LOANS WERE OUTSTANDING. IN HIS REJOINDER, THE LD DR MAINTAINED THAT LD CIT(A) H AD MADE WRONG OBSERVATION. HE HAD JUST REPRODUCED THE SUBMISSIONS OF LD AR AND HAD NOT CONSIDERED THE CREDITWORTHINESS OF THE DEPOSITORS. R EGARDING REPAYMENT OF LOAN, HE SUBMITTED THAT REPAYMENT WAS NO T RELEVANT AS BLACK MONEY IS INTRODUCED THROUGH THESE TYPES OF TRANS ACTIONS AND WHEN ASSESSEE GENERATES HIS OWN FUNDS, THE SAME ARE REPAID. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PAR TIES AND HAVE GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. WE OBSERVE THAT ASSESSMENT IN THIS CASE WAS COMPLETED BY MAKING ADDITION O F ` .16,00,000/- ON ACCOUNT OF UN-EXPLAINED CASH CREDITS U/S 68 OF THE ACT. THE ASSESSEE HAD AS PROOF OF HAVING RECEIVED THESE AMOUNT S FROM DEPOSITORS HAD FILED CONFIRMATIONS FROM DEPOSITORS AND COPY OF IT RETURNS BUT COULD NOT PRODUCE THE DEPOSITORS FOR CROSS E XAMINATION BY THE ASSESSING OFFICER. THE LD AR, ON THE OTHER HAND, HA S CLAIMED THAT VIDE LETTER DATED 21.12.2009 PLACED AT PAGE 12 OF P APER BOOK, THE ASSESSING OFFICER WAS REQUESTED TO CALL THE PERSONS FOR CR OSS QUESTIONING. THE ASSESSING OFFICER DID NOT ISSUE ANY NOT ICE U/S 131 OF THE ACT NOR MADE ANY ARRANGEMENT TO CALL INFORMATIO N FROM THE DEPOSITORS. 9. WE HAVE ALSO GONE THROUGH THE COPIES OF BANK STATE MENTS AND COPIES OF INCOME TAX RETURNS SUBMITTED BY THE LD AR BE FORE ASSESSING OFFICER AND HAVE OBSERVED THAT THE PAYMENTS TO ASSESSEE W ERE MADE ITA NO3482/DEL/2010 9 AFTER DEPOSITING AN EQUIVALENT AMOUNT IN THE BANK AC COUNT OF THE DEPOSITORS. THE ASSESSING OFFICER WAS NOT ABLE TO VERIFY T HE GENUINENESS OF SOURCE OF THESE DEPOSITS. 10. FROM THE COPIES OF IT RETURNS FILED, IT IS APPAREN T THAT THE INCOME LEVEL OF THE DEPOSITORS IS TOO LOW TO GIVE SUCH HUGE SUM S AS UNSECURED LOANS. THE LD CIT(A) DID NOT TRY TO VERIFY THE CREDI TWORTHINESS OF DEPOSITORS AND ON THE BASIS OF JUST CONFIRMATION, BANK S TATEMENT AND COPIES OF IT RETURNS REVERSED THE ORDER OF THE ASSESSING OFFICER WHICH IN OUR OPINION WAS NOT JUSTIFIED KEEPING IN VIEW THE INC OME LEVEL AND CREDITWORTHINESS OF DEPOSITOR. THE CONTENTION OF LD A R THAT ASSESSEE HAD FURNISHED EXPLANATIONS ABOUT CREDITS AND THESE WERE NOT FOUND TO BE NON SATISFACTORY DOES NOT HOLD GOOD IN VIEW OF THE FACT THAT ASSESSING OFFICER HAD NOT CARRIED OUT NECESSARY INVESTIGAT IONS TO ARRIVE AT THE CONCLUSION THAT EXPLANATION FURNISHED BY ASSESSEE WERE SATISFACTORY. IT IS ALSO CORRECT THAT ASSESSING OFFICER HA D POWER TO CALL DEPOSITOR FOR CROSS EXAMINATION WHICH HE DID NOT DO. I N THIS WAY, HE ALSO FAILED TO DO HIS DUTY IN A FAIR AND REASONABLE MA NNER. THEREFORE, IN THE PRESENT CIRCUMSTANCES AND FACTS OF THE CASE, WE FEEL THAT THE MATTER SHOULD BE RECONSIDERED BY ASSESSING OFFICER AND H E SHOULD EXERCISE HIS POWERS AVAILABLE UNDER THE IT ACT TO VER IFY THE ENTRIES AND EXAMINE THE DEPOSITOR WITH A VIEW TO ASCERTAIN WHETHE R THE TRANSACTIONS WERE GENUINE OR WERE MADE TO LOOK LIKE G ENUINE. 11. THE CASE LAW RELIED UPON BY LD AR IN THE CASE OF CIT ORISSA V. ORISSA CORPORATION P. LTD. (SC) 159 ITR 78 DOES NOT APPLY TO THE CIRCUMSTANCES OF THE PRESENT CASE AS IN THAT CASE NOTICES WERE ISSUED TO DEPOSITORS BUT WERE RETURNED BACK. IN THE PRESENT CASE, THIS EXERCISE HAS NOT YET BEEN DONE BY ASSESSING OFFICER AND HE HAS EVERY RIGHT TO EXAMINE THEM SPECIFICALLY KEEPING IN VIEW T HE TAXABLE INCOMES ITA NO3482/DEL/2010 10 OF DEPOSITORS. SIMILARLY OTHER CASE LAW RELIED UPON BY THE LD AR IN THE CASE OF CIT V. ABDUL AZIZ 251 CTR 58 ALSO DOES NOT APP LY TO THE CIRCUMSTANCES AND FACTS OF THE PRESENT CASE AS IN THAT CA SE CREDITORS WERE EXAMINED BY ASSESSING OFFICER WHEREAS IN THE PRESENT CASE IT HAS NOT BEEN DONE. THE OTHER CASE LAWS RELIED UPON BY LD AR RELATE TO CASES OF SHARE APPLICATION MONEY OF COMPANIES WHEREAS TH E PRESENT CASE IS OF AN INDIVIDUAL. MOREOVER IN THE PRESENT CASE CREDITWORTHINESS OF DEPOSITORS WAS DOUBTFUL. IN VIEW OF THE ABOVE DISCU SSIONS, THE MATTER IS SET ASIDE TO THE OFFICE OF ASSESSING OFFICER FOR RE-ADJUDICATION. NEEDLESS TO SAY THAT ASSESSEE WILL BE PROVIDED SUFFICIENT OPPORTUNITY OF BEING HEARD. 12. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S ALLOWED FOR STATISTICAL PURPOSES. 13. ORDER PRONOUNCED IN THE OPEN COURT ON 21ST DAY O F SEPTEMBER, 2012. SD/- SD/- (I.C. SUDHIR) (T.S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DT.21.09.2012. HMS COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). ITA NO3482/DEL/2010 11 DATE OF HEARING 7.8.2012 DATE OF DICTATION 18.9.2012 DATE OF TYPING 18.9.2012 DATE OF ORDER SIGNED BY 21.9.2012 BOTH THE MEMBERS & PRONOUNCEMENT. DATE OF ORDER UPLOADED ON NET 24.9.2012 & SENT TO THE BENCH CONCERNED.