Rahul Prakash Changede, Ahmednagar V. Income-tax Officer,

ITA 352/PUN/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 0997 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 26-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained expenditure; Income from undisclosed sources; Search and seizure; Opportunity of cross examination
• Section: 69C; 143(3); 142(1); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI PRADIP KUMAR KEDIA , A M . / ITA NO. 35 2 /PN/201 4 / ASSESSMENT YEAR : 200 9 - 10 SHRI RAHUL PRAKASH CHANGEDE, A/P SALABATPUR, NEWASA, A HMEDNAGAR . / APPELLANT PAN: A CVPC0591P VS. THE INCOME TAX OFFICER, WARD 2 , AHMEDNAGAR . / RESPONDENT / APPELLANT BY : NONE / RESPONDENT BY : SHRI DHEERAJ KUMAR JAIN / RESPONDENT BY : SHRI DHEERAJ KUMAR JAIN / DATE OF HEARING : 27 . 1 0.2015 / DATE OF PRONOUNCEMENT: 27 . 1 0.2015 / ORDER PER SUSHMA CHOWLA, JM: THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF CIT (A) - I T/TP , PUNE , DATED 30 . 12 .201 3 RELATING TO ASSESSMENT YEAR 2009 - 10 AGAINST ORDER PASSED U NDER SECTION 143(3) OF THE INCOME - TAX ACT, 1961 (IN SHORT THE ACT) . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1] THE LEARNED CIT(A) ERRED IN HOLDING THAT THE ASSESSEE HAD MADE UNACCOUNTED CASH PAYMENTS OF RS.10,41,980/ - TO M / S. SARGAM RETAILS PVT. LTD. @ RS.95/ - PER BAG OF GAI CHHAP JARDA PURCHASED FROM THE SAID PARTY AND HENCE, THE ADDITION MADE IN THIS RESPECT WAS JUSTIFIED. ITA NO. 35 2 / PN/201 4 SHRI RAHUL PRAKASH CHANGEDE 2 2] THE LEARNED CIT(A) ERRED IN HOLDING THAT THE ASSESSEE HAD MADE UNACCOUNTED CASH PAYMENT OF RS.4,82,899/ - TO M / S SARGAM RETAILS PVT. LTD. I N RESPECT OF GOODS RETURNED TO THE SAID PARTY AND HE NCE, THE ADDITION MADE WAS JUSTIFIED. 3] THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE ASSESSEE HAD NOT MADE ANY UNACCOUNTED CASH PAYMENTS TO M/S. SARGAM RETAILS PVT. LTD. A ND THEREFORE, THE ADDITION MADE BY THE LEARNED A.O. WAS NOT JUSTIFIED AT ALL. 4] THE LEARNED CIT(A) ERRED IN NOT APPRECIATING THAT THE SAID ADDITION WAS MADE MERELY ON THE BASIS OF THE STATEMENT RECORDED OF THIRD PARTY I.E. SHRI MALPANI WITHOUT APPRECIATING THAT THE LEARNED A.O. HAS NOT BROUGHT ANY CORROBORATIVE EVIDENCE ON RECORD TO HOLD THAT THE ASSESSEE HAS MADE UNACCOUNTED PAYMENTS TO M /S . SARGAM RETAILS PVT. LTD. A ND HENCE, THE ADDITION MADE IS NOT JUSTIFIED. 5] THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THAT THE LEARNED A.O. WAS NOT JUSTIFIED IN RELYING ON THE STATEMENT O F SHRI RAJESH MALPANI WITHOUT GIVING ANY OPPORTUNITY OF CROSS EXAMINATION TO THE ASSESSEE IN THIS RESPECT AND HENCE, THE ADDITION MADE BY THE LEARNED A.O. SHOULD HAVE BEEN DELETED. 6 ] THE LEARNED CIT(A) FAILED TO APPRECIATE THAT NO ADDITION COULD HAVE BE EN MADE ON THE BASIS OF THE DOCUMENTS FOUND WITH THIRD PARTY AND HENCE, THE ADDITION MADE OUGHT TO HAVE BEEN DELETED. 7] WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE ASSESSEE SUBMITS THAT THE ALLEGED AMOUNT OF RS. 10 ,41,980 / - WAS COLLECTED BY THE ASSESSEE F ROM THE VARIOUS WHOLESALERS AND RETAILERS ON BEHALF OF M /S . SARGAM RETAILS PVT. LTD. AND WAS SUBSEQUENTLY PAID TO THE SAID PARTY AND HENCE, THE SAME WOULD NOT CONSTITUTE INCOME IN THE HANDS OF THE ASSESSEE AND SAME WOULD NOT CONSTITUTE INCOME IN THE HANDS OF THE ASSESSEE AND THUS, THE ADDITION TO THAT EXTENT IS NOT JUSTI FIED. 8 ] THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 3. DESPITE SERVICE OF NOTICE, NONE APPEARED ON BEHALF OF THE ASSESSEE, NOR ANY APPLICATION WAS MOVED FOR ADJOURNMENT, HENCE, WE PROCEED TO DECIDE THE P RESENT APPEAL AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE AS THE ISSUE IN THE PRESENT APPEAL IS COVERED BY THE ORDER OF TRIBUNAL . 4 . ON PERUSAL OF RECORD, WE FIND THAT T HE ONLY ISSUE RAISED IN THE PRESENT APPEAL IS IN RELATION TO THE ADDITION MADE ON ACCOUNT OF UNACCOUNTED CASH PAYMENT. THE CASE OF THE REVENUE WAS THAT THE ASSESSEE HAD MADE UNACCOUNTED PAYMENTS FOR THE PURCHASE OF GAI CHAP ZARDA FROM M/S. SARGAM RETAILERS PVT. LTD. THE BASIS FOR THE SAID ADDITION WAS THE STATEME NT RECORDED OF ONE SHRI MALPANI. ITA NO. 35 2 / PN/201 4 SHRI RAHUL PRAKASH CHANGEDE 3 5 . WE FIND THAT AN IDENTICAL ISSUE AROSE BEFORE PUNE BENCH OF THE TRIBUNAL IN SHRI SHRENIK SHANTILAL DHADIWAL VS. THE TAX RECOVERY OFFICER (IT) (SUPRA) , WHEREIN THE TRIBUNAL IN TURN, RELIED ON THE DECISION S IN M/S. BALAJ I AGENCIES VS. ITO IN ITA NO.353/PN/2014 RELATING TO ASSESSMENT YEAR 2009 - 10, ORDER DATED 20.02.2015 , ITO VS. SHRI DINESH SATYANARAYAN TAWANI, ITA NO.938/PN/2013 AND ITO VS. SHRI SANJAY MOHANLAL CHHAJED, ITA NO.1746/PN/2012 BOTH RELATING TO ASSESSMENT YEAR 2009 - 10 . T HE TRIBUNAL VIDE ORDER OF EVEN DATE IN ITO VS. SHRI DINESH SATYANARAYAN TAWANI (SUPRA) , HELD AS UNDER: - 7. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE WAS A DEALER OF GAI CHAP ZARDA, TEA AND OTHER GOODS OF SARGAM RETAILERS PVT. LTD., MA LPANI TEAL CORPORATION AND MALPANI PRODUCTS, SANGAMNER. THE ASSESSEE WAS CARRYING ON TRADING ON WHOLESALE BASIS. THE ASSESSING OFFICER RECEIVED A REFERENCE FROM DDIT (INV.), UNIT - I(2), PUNE, IN THE CASE OF MALPANI GROUP OF CASES OF SANGAMNER AND PUNE. ON T HE BASIS OF THE SAID INFORMATION, THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND NOTICES UNDER SECTION 143(2) / 142(1) WERE ISSUED. IN THE SEARCH ACTION CARRIED OUT UNDER SECTION 132 OF THE ACT, IN THE MALPANI GROUP OF CASES, CERTAIN DOCUMENTS WERE FOUND AND SEIZED FROM VARIOUS PREMISES OF THE SAID GROUP. THE STATEMENT OF SHRI RAJESH OMKARNATH MALPANI, PREMISES OF THE SAID GROUP. THE STATEMENT OF SHRI RAJESH OMKARNATH MALPANI, DIRECTOR OF SARGAM RETAILERS PVT. LTD. WAS RECORDED UNDER SECTION 132(4) OF THE ACT ON 3 RD DECEMBER 2009. IN HIS STATEMENT, HE HAD ACCEPTED THAT M/S. SARGAM RETAILERS PVT. LTD., HAD COLLECTED CASH FROM THE DEALERS OF GAI CHAP ZARDA ON ACCOUNT OF FAILURE OF FULFILLMENT OF TARGETS SET FOR SALE OF GAI CHAP ZARDA. A LIST OF DEALERS AND AMOUNT OF CASH COLLECTED FROM EACH DEALER WAS MADE PART AND PARCEL OF T HE STATEMENT. AS PER THE LIST FORWARDED BY THE DDIT (INV.), A SUM OF RS.16,51,445/ - WAS COLLECTED FROM THE ASSESSEE FOR THE INSTANT ASSESSMENT YEAR ON ACCOUNT OF NON - FULFILLMENT OF TARGET OF SALES OF GAI CHAP ZARDA. THE ASSESSEE, IN REPLY, STATED THAT THE ASSESSEE HAD NOT GIVEN ANY CASH PAYMENT OF RS.16,51,445/ - OTHER THAN THE PAYMENT RECORDED IN THE BOOKS OF ACCOUNT TOWARDS PURCHASES MADE FROM M/S. SARGAM RETAILERS PVT. LTD. THE A.O. REJECTED THE REPLY OF THE ASSESSEE AND OBSERVED THAT SINCE THE PAYMENTS W ERE RECEIVED IN CASH, THE SAME WOULD NOT BE RECORDED IN THE BOOKS OF ACCOUNT. IN VIEW OF THE STATEMENT OF SHRI RAJESH OMKARNATH MALPANI, RECORDED UNDER SECTION 132(4) OF THE ACT, WHICH AS PER THE A.O. HAD EVIDENTIARY VALUE COULD BE TAKEN AS TRUE. HENCE, TH E SAID AMOUNT OF RS.16,51,445/ - WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED EXPENDITURE WITHIN THE MEANING OF SECTION 69C OF THE ACT. FURTHER, SHRI RAJESH OMKARNATH MALPANI, ALSO ADMITTED THAT M/S. SARGAM RETAILERS PVT. LTD., HA D COLLECTED CASH FROM DEALERS ON ACCOUNT OF REJECTED GOODS. IT WAS ADMITTED BY HIM THAT THE SAME AMOUNT WAS COLLECTED FROM THE DEALERS AGAINST THE SAID REJECTION. THE AMOUNT COLLECTED FROM THE ASSESSEE ON ACCOUNT OF REJECTED GOODS FOR THE YEAR UNDER APPEAL WAS RS.10,80,207/ - . THE ASSESSEE EXPLAINED THAT IT HAD RETURNED 727 BAGS OF GAI CHAP ZARDA AND EXCEPT THE SAID GOODS RETURNED NO OTHER CASH PAYMENT ON ACCOUNT OF REJECTED GOODS WAS MADE BY THE ASSESSEE. THE ITA NO. 35 2 / PN/201 4 SHRI RAHUL PRAKASH CHANGEDE 4 ASSESSING OFFICER, IN VIEW OF THE STATEMENT OF S HRI RAJESH O. MALPANI, MADE AN ADDITION OF RS.10,80,207/ - IN THE HANDS OF THE ASSESSEE. 8. BEFORE THE CIT(A), THE CASE OF THE ASSESSEE WAS THAT IT HAD NOT MADE THE SAID PAYMENT. FURTHER, NO AGREEMENT HAS BEEN FOUND BETWEEN THE SAID CONCERN AND THE DEALERS TOWARDS ALLEGED PAYMENT TO BE MADE FOR NON - FULFILLMENT OF TARGETS BY THE DEALERS. ENTIRE CONTENTION RAISED BY THE ASSESSEE WAS WHERE THE CONCERNED PERSON HAD ADMITTED THE TRANSACTION FOUND IN THE SEIZED MATERIAL AND HAD OFFERED THE SAME TO TAX AND PAID DU E TAXES, THEN THERE WAS NO QUESTION OF ADDITION IN RESPECT OF SAID TRANSACTION IN THE HANDS OF THE THIRD PARTY. THE CIT(A) FORWARDED THE SUBMISSIONS OF THE ASSESSEE TO THE A.O. WHO SUBMITTED THE REMAND REPORT. THE ASSESSEE FILED COUNTER COMMENTS AND STATED THAT THE A.O. HAD FAILED TO GIVE COPIES OF THE STATEMENT RECORDED OF SHRI RAJESH O. MALPANI, AND THE ALLEGED PAPERS FOUND DURING THE COURSE OF SEARCH. THE ASSESSEE ALSO ASKED FOR CROSS EXAMINATION OF SHRI RAJESH O. MALPANI. THE A.O., IN THE REMAND PROCEED INGS, PROVIDED THE COPY OF THE STATEMENT AND OTHER PAPERS TO THE ASSESSEE AND ALSO ALLOWED CROSS EXAMINATION OF SHRI RAJESH O. MALPANI, WHICH WAS CARRIED OUT ON 1 ST JANUARY 2013. THE RELEVANT PORTION OF THE SAID STATEMENT IS REPRODUCED AT PAGE - 9 AND 10 OF THE APPELLATE ORDER. THE ASSESSING OFFICER, IN HIS REPORT DATED 4 TH JANUARY 2013, STATED THAT SHRI RAJESH O. MALPANI, IN REPLY TO QUESTION NO.9, DENIED TO HAVE RECEIVED ANY CASH FROM THE ASSESSEE. HOWEVER, IN REPLY TO QUESTION NO.10, HE HAD STATED THAT CAS H WAS COLLECTED BY THEIR FIELD STAFF FROM BEED AREA. THE A.O. FURTHER STATED THAT SHRI RAJESH O. MALPANI, HAD ACCEPTED THAT THEY HAVE RECORDED THE BUSINESS TRANSACTION MADE WITH THE ASSESSEE IN THEIR BOOKS OF ACCOUNT AND THE AMOUNTS NOT RECORDED IN THE BOO KS OF ACCOUNT HAVE BEEN OFFERED TO TAX AS INCOME. THE LD. CIT(A), VIDE PARA - 14.2, OBSERVED THAT IN VIEW OF THE ABOVE SPECIFIC REPLIES GIVEN BY SHRI RAJESH O. MALPANI, IT CANOT BE SAID THAT THE ALLEGED CASH PAYMENT OF RS.16,51,445/ - AND MALPANI, IT CANOT BE SAID THAT THE ALLEGED CASH PAYMENT OF RS.16,51,445/ - AND RS.10,80,207/ - HAS B EEN MADE BY THE APPELLANT TO SRPL. IT HAS ALSO BEEN POINTED OUT BY SHRI RAJESH O. MALPANI IN REPLY TO Q.NO.17 AS UNDER: - QEU. NO.17 DO YOU HAVE ANYTHING TO SAY ANYTHING MORE. ANS. I AM SUBMITTING THE COPY OF ASSESSMENT ORDER PASSED IN THE CASE OF ONE OF OUR DEALER MR. OMPRAKASH JAGANNATH LADDHA, PROP. TULSI SALES CORPORATION, SOLAPUR, WHERE THE ASSESSMENT IS PASSED BY CENTRAL CIRCLE, PUNE WITHOUT MAKING ANY ADDITION ON ACCOUNT OF OUR DISCLOSURE. THE A.O. IN HIS REPORT HAS NOT COMMENTED ON THE REPLY GIVE N BY RAJESH O. MALPANI, TO THE ABOVE Q.NO.17. THE CIT(A) IN VIEW THEREOF DELETED THE ADDITION AGAINST WHICH THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 9. WE FIND THAT SIMILAR ISSUE OF CASH PREMIUM IN RESPECT OF GAI CHAP ZARDA AROSE BEFORE THE TRIBU NAL IN THE CASE OF ITO V/S M/S. PARAKH AGENCY IN ITA NO.1112/PN/2013, RELATING TO ASSESSMENT YEAR 2009 - 10. THE TRIBUNAL, VIDE ORDER DATED 9 TH SEPTEMBER 2014, CONSIDERED THE FACTS IN BRIEF VIDE PARA - 3 AND 3.1 AS UNDER: - 3. FACTS OF THE CASE, IN BRIEF, ARE THAT A SEARCH AND SEIZURE ACTION U/S.132 OF THE I.T. ACT WAS CARRIED ON IN THE CASES OF MALPANI GROUP OF SANGAMNER ON 06 - 10 - 2009. DURING THE COURSE OF SAID SEARCH, A STATEMENT ON OATH OF SHRI RAJESH O. MALPANI WAS RECORDED U/S.132(4) ON 03 - 12 - 2009. IN T HE STATEMENT, THE DEPONENT HAS STATED THAT THE MALPANI GROUP HAS COLLECTED CASH PREMIUM UPTO RS.95/ - PER BAG IN RESPECT OF SALE OF GAI CHAP ZARDA FROM SOME OF THE DEALERS IN F.YS. 2008 - 09 AND ITA NO. 35 2 / PN/201 4 SHRI RAHUL PRAKASH CHANGEDE 5 2009 - 10 WHICH IS UNACCOUNTED INCOME OF SARGAM RETAIL PVT. LTD. FURTHER, IN THE STATEMENT RECORDED U/S.132(4) ON 03 - 12 - 2009, SHRI RAJESH O. MALPANI HAS GIVEN THE DETAILS OF CASH COLLECTED FROM THE DEALER ON SALE OF GAICHAP ZARDA AS UNDER : A.Y. 2009 - 10 A.Y. 2010 - 11 TOTAL UNACCOUN - TED CASH COLLECTED (RS.) NAME OF DEALER QTY.(BAGS) UNACCOUNTED CASH COLLECTED (RS) QTY.(BAGS) UNACCOUN TED CASH COLLECTED (RS.) PARAKH AGENCIES NANDGAON PAN AAFFP6717L 8478 777190 11190 1103915/ - 1881105/ - IN VIEW OF THE ABOVE INFORMATION THE AO HAS ASKED THE ASSESSEE TO EXPLAIN AS TO WHETHER THE ABOVE AMOUNT OF RS.7,77,190/ - HAS BEEN REFLECTED IN THE BOOKS OF ACCOUNT AND TO EXPLAIN THE NATURE OF THE SAID TRANSACTIONS. IN RESPONSE TO THIS QUERY OF THE AO, THE ASSESSEE FILED DETAILS OF TRANSACTIONS WITH SARGAM RETAILS PVT. LTD. SANGAMNER AND DENIED ANY SUCH PAYMENT OF RS.7,77,190/ - TO SARGAM RETAILS PVT. LTD. SANGAMNER. HOWEVER, THE AO REJECTED THE REPLY OF THE ASSESSEE AND MADE THE ADDITIONS OF RS.7,77,190/ - BY RELYING ON THE STATEMENT RECORDED U/S 132(4) OF SHRI RAJESH O. MALPANI, DIRECTOR OF SARGAM RETAILS PVT. LTD. DURING SEARCH ACTION IN THE CASE OF THE SAID CO. IN SUPPORT OF THIS ADDITION, THE AO RELIED ON THE DECISION OF HON'BLE ITAT, DELHI IN THE CASE OF HERSH WIN CHADHA VS. DDIT. THE AO, RELYING ON THE ABOVE DECISIO N OBSERVED THAT UNLIKE CRIMINAL PROCEEDINGS, THE CHARGE IS NOT REQUIRED TO BE PROVED BEYOND DOUBT IN THE CASE OF INCOME TAX NOT REQUIRED TO BE PROVED BEYOND DOUBT IN THE CASE OF INCOME TAX PROCEEDINGS. THE TECHNICAL RULES CONTAINED IN THE INDIAN EVIDENCE ACT ARE NOT APPLICABLE IN THE INCOME TAX PROCEEDINGS. IN CLANDES TINE TRANSACTIONS, IT IS IMPOSSIBLE TO HAVE DIRECT EVIDENCE TO PROVE THE SAID TRANSACTIONS. THE AO HAS TO ASSESS THE TAX LIABILITY CONSIDERING THE MATERIAL AVAILABLE ON RECORD, SURROUNDING CIRCUMSTANCES, PREPONDERANCE OF PROBABILITIES AND EVIDENCE AVAILAB LE ON RECORD. 3.1 THE AO FURTHER NOTICED THAT DURING THE IMPUGNED YEAR THE ASSESSEE HAS TRANSACTED 8478 BAGS WHEREAS THE AMOUNT OF RS.7,77,190/ - HAS BEEN PAID TO S.R.P.L. TOWARDS PREMIUM PAID IN CASH WHICH IS UNACCOUNTED. THE AO, THEREFORE, ASKED THE ASSE SSEE TO EXPLAIN AS TO WHY IT SHOULD NOT BE TREATED THAT IN RESPECT OF BALANCE QUANTITY OF 3122 BAGS THE PREMIUM @ 91.67 PER BAG, I.E. RS.2,80,193/ - WAS ALSO COLLECTED FROM THE MARKET AS UNACCOUNTED CASH AND RETAINED WITH HIMSELF AS UNACCOUNTED INCOME. THE ASSESSEE DENIED ANY SUCH COLLECTION AND REPLIED TO THE ASSESSING OFFICER ACCORDINGLY. THE ASSESSING OFFICER, HOWEVER, REJECTED THE REPLY OF THE ASSESSEE AND MADE ADDITION OF RS.2,86,193/ - ON ACCOUNT OF UNACCOUNTED INCOME. 10. THE TRIBUNAL, THEREAFTER, DELETED THE ADDITION UPHOLDING THE ORDER OF THE CIT(A) OBSERVING AS UNDER: - 7. WE HAVE CONSIDERED THE ARGUMENTS ADVANCED BY THE LD. DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL ON RECORD. WE FIND THE ASSESSING OFFICER, BASED ON THE STATEMENT REC ORDED U/S.132(4) ITA NO. 35 2 / PN/201 4 SHRI RAHUL PRAKASH CHANGEDE 6 OF SHRI RAJESH O. MALPANI, DIRECTOR OF SARGAM RETAILS PVT. LTD. MADE ADDITION OF RS.7,77,190/ - ON THE GROUND THAT SARGAM RETAILS PVT. LTD. HAS COLLECTED PREMIUM ON SALE OF GAICHAP ZARDA FROM THE DEALERS IN CASH BY CHARGING LESS PRICE OF TH E PRODUCT TO THE DEALERS. WE FIND THE LD.CIT(A) DELETED THE ADDITION MADE BY THE ASSESSING OFFICER ON THE GROUND THAT THE ASSESSING OFFICER HAS NOT ALLOWED CROSS EXAMINATION OF SHRI RAJESH O. MALPANI, DIRECTOR OF SARGAM RETAILS PVT. LTD. BY THE ASSESSEE A LTHOUGH IT WAS SPECIFICALLY RAISED BEFORE THE ASSESSING OFFICER. HE FURTHER HELD THAT ADDITION CANNOT BE MADE ON THE BASIS OF A STATEMENT RECORDED ON OATH UNLESS OPPORTUNITY OF CROSS EXAMINATION IS GIVEN TO THE ASSESSEE. THE LD. CIT(A) HAS FURTHER OBSERV ED THAT EVEN IF IT IS ACCEPTED THAT ASSESSEE HAS PAID THE EXCESS AMOUNT TO SARGAM RETAILS PVT. LTD., SAME ARE COLLECTED ON BEHALF OF SARGAM RETAILS PVT. LTD. FROM VARIOUS RETAILERS AND THE RESULTANT INCOME OF THE ASSESSEE ON THESE TRANSACTIONS WILL BE NIL. THIS REASONED FINDING BY THE LD.CIT(A) IN OUR OPINION DOES NOT SUFFER FROM ANY INFIRMITY IN ABSENCE OF ANY CONTRARY MATERIAL BROUGHT TO OUR NOTICE BY THE LD. DEPARTMENTAL REPRESENTATIVE. THEREFORE, THE ADDITION OF RS.7,77,190/ - DELETED BY THE LD. CIT(A) IN OUR OPINION IS JUSTIFIED AND THE GROUND OF APPEAL NO.1 BY THE REVENUE IS DISMISSED. 7.1 SO FAR AS THE ADDITION OF RS.2,86,193/ - IS CONCERNED, WE FIND THE ASSESSING OFFICER MADE THE ADDITION ON THE BASIS OF DIFFERENCE BETWEEN THE TOTAL BAGS TRANSACTED AND THE BAGS IN RESPECT OF WHICH THE ADDITION HAS BEEN MADE AT 8478 BAGS. THE LD.CIT(A) HAS GIVEN A FINDING THAT THIS ADDITION OF THE ASSESSING OFFICER IS NOT SUPPORTED BY ANY EVIDENCE. THE LD. DEPARTMENTAL REPRESENTATIVE ALSO COULD NOT BRING ANY MATERI AL TO CONTROVERT THE FINDING GIVEN BY THE LD.CIT(A) WHICH ACCORDING TO THE TO CONTROVERT THE FINDING GIVEN BY THE LD.CIT(A) WHICH ACCORDING TO THE LD.CIT(A) IS BASED ON ASSUMPTION, PRESUMPTION AND SUSPICION. IN VIEW OF THE ABOVE, THE ORDER OF THE CIT(A) DELETING THE ADDITION OF RS.2,86,193/ - IN OUR OPINION, ALSO DOES NOT SUFF ER FROM ANY INFIRMITY. ACCORDINGLY, THE SAME IS UPHELD. GROUND OF APPEAL NO.2 BY THE REVENUE IS ACCORDINGLY DISMISSED. 7.2 SO FAR AS THE GROUNDS OF APPEAL NO.3 IS CONCERNED, WE FIND FROM THE REMAND REPORT OF THE ASSESSING OFFICER DATED 05 - 03 - 2013 THAT HE HAS ACCEPTED THAT NO CROSS EXAMINATION OF SHRI RAJESH O. MALPANI WAS ALLOWED TO THE ASSESSEE DURING ASSESSMENT PROCEEDINGS. THEREFORE, GROUND OF APPEAL NO.3 BY THE REVENUE IS DISMISSED. 11. THE FACTS AND ISSUE ARISING IN THE PRESENT APPEAL ARE IDENT ICAL TO THE FACTS AND ISSUE BEFORE THE TRIBUNAL IN THE CASE OF M/S. PARAKH AGENCY (SUPRA) AND FOLLOWING THE SAME PARITY OF REASONING, WE UPHOLD THE ORDER OF THE LD. CIT(A) IN DELETING THE ADDITION OF RS.16,51,445/ - AND RS.10,80,207/ - . THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE THUS DISMISSED. 6 . THE ISSUE RAISED IN THE PRESENT APPEAL IS IDENTICAL TO THE ISSUE BEFORE THE TRIBUNAL IN SHRI SHRENIK SHANTILAL DHADIWAL VS. THE TAX RECOVERY OFFICER (IT) (SUPRA), M/S. BALAJI AGENCIES VS. ITO (SUPRA) , ITO VS. SHRI DINESH SATYANARAYAN TAWANI (SUPRA) AND ITO VS. SHRI SANJAY MOHANLAL CHHAJED ITA NO. 35 2 / PN/201 4 SHRI RAHUL PRAKASH CHANGEDE 7 (SUPRA) AND FOLLOWING THE SAME PARITY OF REASONING, WE DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION S MADE ON ACCOUNT OF UNACCOUNTED CASH PAYMENT OF RS. 1 0 , 41 , 98 0/ - AND RS. 4 , 82 , 899 / - . THUS, THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE ALLOWED. 7 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER P RONOUNCED IN OPEN COURT ON THIS 27 TH DAY OF OCTOBER , 201 5 . SD/ - SD/ - (PR ADIP KUMAR KEDIA) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 28 TH OCTOBER , 2015 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - I T/TP , PUNE ; 4. / THE CIT - I, PUNE ; 4. / THE CIT - I, PUNE ; 5. , , / DR A , ITAT, PUNE; 6. / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE