M/s. Balaji Agencies, Ahmednagar V. Income-tax Officer,

ITA 353/PUN/2014

• Counselvise Citation: 35324514 RSA 2014
• Duration Of Justice: 11 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 26-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B C MALAKAR
• Keywords: Income from undisclosed sources
• Section: 69C; 143(3); 142(1); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE MS SUSHMA CHOWLA, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO.353/PN/2014 ASSESSMENT YEAR : 2009-10 M/S. BALAJI AGENCIES, KUMAR TALE, JAMKHED, AHMEDNAGAR APPELLANT PAN: AAEFB8258P VS. THE INCOME TAX OFFICER, WARD 2, AHMEDNAGAR RESPONDENT APPELLANT BY : NONE RESPONDENT BY : B.C. MALAKAR DATE OF HEARING : 02-02-2015 DATE OF PRONOUNCEMENT : 20-02-2015 O R D E R PER SUSHMA CHOWLA, J.M: THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF C IT(A)- IT/TP, PUNE, DATED 30.12.2013 RELATING TO ASSESSMENT YEAR 2009-10 AGAINST ORDER PASSED UNDER SECTION 143(3) OF THE INCOME-TAX ACT, 19 61. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1] THE LEARNED CIT(A) ERRED IN HOLDING THAT THE ASSESS EE HAD MADE UNACCOUNTED CASH PAYMENTS OF RS.8,43,540/- TO M/S. SARGA M RETAILS PVT. LTD. @ RS.95/- PER BAG OF GAI CHHAP JARDA PURCHASED FROM THE SAID PARTY AND HENCE, THE ADDITION MADE IN T HIS RESPECT WAS JUSTIFIED. 2] THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE ASS ESSEE HAD NOT MADE ANY UNACCOUNTED CASH PAYMENTS TO M/S. SARGA M RETAILS PVT. LTD. AND THEREFORE, THE ADDITION MADE BY THE LEARNE D A.O. WAS NOT JUSTIFIED AT ALL. 3] THE LEARNED CIT(A) ERRED IN NOT APPRECIATING THAT THE SAID ADDITION WAS MADE MERELY ON THE BASIS OF THE STATEME NT RECORDED OF THIRD PARTY I.E. SHRI MALPANI WITHOUT APPRECIATING THAT THE 2 ITA NO.353/PN/2014 M/S. BALAJI AGENCIES LEARNED A.O. HAS NOT BROUGHT ANY CORROBORATIVE EVIDENC E ON RECORD TO HOLD THAT THE ASSESSEE HAS MADE UNACCOUNTED PAYME NTS TO M/S. SARGAM RETAILS PVT. LTD. AND HENCE, THE ADDITION MA DE IS NOT JUSTIFIED. 4] THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THAT THE LEARNED A.O. WAS NOT JUSTIFIED IN RELYING ON THE STATEMENT OF SHRI RAJESH MALPANI WITHOUT GIVING ANY OPPORTUNITY OF CROSS EXAMIN ATION TO THE ASSESSEE IN THIS RESPECT AND HENCE, THE ADDITION MADE BY THE LEARNED A.O. SHOULD HAVE BEEN DELETED. 5] THE LEARNED CIT(A) FAILED TO APPRECIATE THAT NO ADDIT ION COULD HAVE BEEN MADE ON THE BASIS OF THE DOCUMENTS FOUND WITH THIRD PARTY AND HENCE, THE ADDITION MADE OUGHT TO HAVE BEEN DELET ED. 6] WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE ASSES SEE SUBMITS THAT THE ALLEGED AMOUNT OF RS.8,43,540/- WAS COLLECTED BY T HE ASSESSEE FROM 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 IN COME IN THE HANDS OF THE ASSESSEE AND THUS, THE ADDITION TO THAT EXTENT IS NOT JUSTIFIED. 7] THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR D ELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 3. DESPITE SERVICE OF NOTICE, NONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY APPLICATION FOR ADJOURNMENT WAS MOVED BY THE AS SESSEE. HOWEVER, WE PROCEED TO DECIDE THE PRESENT APPEAL AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE. 4. THE ONLY ISSUE RAISED IN THE PRESENT APPEAL IS IN RELAT ION TO THE ADDITION MADE ON ACCOUNT OF UNACCOUNTED CASH PAYMENT O F RS.8,43,540/-. 5. THE CASE OF THE REVENUE WAS THAT THE ASSESSEE HA D MADE UNACCOUNTED PAYMENTS FOR THE PURCHASE OF GAI CHAP ZARD A FROM M/S. SARGAM RETAILERS PVT. LTD. THE BASIS FOR THE SAID ADDITIO N WAS THE STATEMENT RECORDED OF ONE SHRI MALPANI. THE CASE OF THE ASSESSEE WAS THAT IT HAD NOT MADE ANY SUCH PAYMENTS TO M/S. SARGAM RETAILERS PVT. LTD. AND FURTHER, THE RELIANCE ON THE STATEMENT OF SHRI MA LPANI WITHOUT GIVING ANY OPPORTUNITY OF CROSS-EXAMINATION, WAS BAD IN LAW. 3 ITA NO.353/PN/2014 M/S. BALAJI AGENCIES 6. WE FIND THAT AN IDENTICAL ISSUE AROSE BEFORE THE PUNE B ENCH OF THE TRIBUNAL IN THE APPEALS FILED BY THE REVENUE IN ITO VS. SHRI DINESH SATYANARAYAN TAWANI, ITA NO.938/PN/2013 AND ITO VS. SH RI SANJAY MOHANLAL CHHAJED, ITA NO.1746/PN/2012 BOTH RELATING TO A SSESSMENT YEAR 2009-10 AND VIDE ORDER OF EVEN DATE, IT WAS HELD AS UNDER:- 7. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E WAS A DEALER OF GAI CHAP ZARDA, TEA AND OTHER GOODS OF SARGAM RET AILERS PVT. LTD., MALPANI TEAL CORPORATION AND MALPANI PRODUCTS, S ANGAMNER. THE ASSESSEE WAS CARRYING ON TRADING ON WHOLESALE BAS IS. THE ASSESSING OFFICER RECEIVED A REFERENCE FROM DDIT (I NV.), UNIT-I(2), PUNE, IN THE CASE OF MALPANI GROUP OF CASES OF SANGA MNER AND PUNE. ON THE BASIS OF THE SAID INFORMATION, THE CASE O F THE ASSESSEE WAS SELECTED FOR SCRUTINY AND NOTICES UNDER SECTION 143(2) / 142(1) WERE ISSUED. IN THE SEARCH ACTION CAR RIED OUT UNDER SECTION 132 OF THE ACT, IN THE MALPANI GROUP OF CASES , CERTAIN DOCUMENTS WERE FOUND AND SEIZED FROM VARIOUS PREMIS ES OF THE SAID GROUP. THE STATEMENT OF SHRI RAJESH OMKARNATH M ALPANI, DIRECTOR OF SARGAM RETAILERS PVT. LTD. WAS RECORDED UN DER 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 COLLEC TED CASH FROM THE DEALERS OF GAI CHAP ZARDA ON ACCOUNT OF FAI LURE OF FULFILLMENT OF TARGETS SET FOR SALE OF GAI CHAP ZARDA . A LIST OF DEALERS AND AMOUNT OF CASH COLLECTED FROM EACH DEALER W AS MADE PART AND PARCEL OF THE STATEMENT. AS PER THE LIST FOR WARDED BY THE DDIT (INV.), A SUM OF RS.16,51,445/- WAS COLLECTED FROM TH E 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 B OOKS OF ACCOUNT TOWARDS PURCHASES MADE FROM M/S. SARGAM RETA ILERS PVT. LTD. THE A.O. REJECTED THE REPLY OF THE ASSESSEE AND O BSERVED THAT SINCE THE PAYMENTS WERE RECEIVED IN CASH, THE SAME W OULD NOT BE RECORDED IN THE BOOKS OF ACCOUNT. IN VIEW OF THE STA TEMENT 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, THE SAID AMOUNT OF RS.16,51,445/- WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED EXP ENDITURE WITHIN THE MEANING OF SECTION 69C OF THE ACT. FURTHE R, SHRI RAJESH OMKARNATH MALPANI, ALSO ADMITTED THAT M/S. SARGAM RETAILE RS PVT. LTD., HAD 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 AMOUN T 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 REJECT ED GOODS WAS MADE BY THE ASSESSEE. THE ASSESSING OFFICER, IN VIEW OF THE STATEMENT OF SHRI RAJESH O. MALPANI, MADE AN ADDITION OF RS.10,80,207/- IN THE HANDS OF THE ASSESSEE. 4 ITA NO.353/PN/2014 M/S. BALAJI AGENCIES 8. BEFORE THE CIT(A), THE CASE OF THE ASSESSEE WAS THA T IT HAD NOT MADE THE SAID PAYMENT. FURTHER, NO AGREEMENT HAS BEEN FOUND BETWEEN THE SAID CONCERN AND THE DEALERS TOWARDS ALLE GED PAYMENT TO BE MADE FOR NON-FULFILLMENT OF TARGETS BY THE DEALERS. ENTIRE CONTENTION RAISED BY THE ASSESSEE WAS WHERE T HE CONCERNED PERSON HAD ADMITTED THE TRANSACTION FOUND IN THE SEI ZED MATERIAL AND HAD OFFERED THE SAME TO TAX AND PAID DUE TAXES, THEN THERE WAS NO QUESTION OF ADDITION IN RESPECT OF SAID TRANS ACTION IN THE HANDS OF THE THIRD PARTY. THE CIT(A) FORWARDED THE SU BMISSIONS OF THE ASSESSEE TO THE A.O. WHO SUBMITTED THE REMAND REPO RT. THE ASSESSEE FILED COUNTER COMMENTS AND STATED THAT THE A.O. HAD FAILED TO GIVE COPIES OF THE STATEMENT RECORDED OF S HRI RAJESH O. MALPANI, AND THE ALLEGED PAPERS FOUND DURING THE COURSE O F SEARCH. THE ASSESSEE ALSO ASKED FOR CROSS EXAMINATION OF SHR I RAJESH O. MALPANI. THE A.O., IN THE REMAND PROCEEDINGS, PROVIDED THE CO PY OF THE STATEMENT AND OTHER PAPERS TO THE ASSESSEE AND ALSO ALLOWED CROSS EXAMINATION OF SHRI RAJESH O. MALPANI, WHICH WA S CARRIED OUT ON 1 ST JANUARY 2013. THE RELEVANT PORTION OF THE SAID STATEM ENT 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 CASH WAS COLLECTED B Y THEIR FIELD STAFF FROM BEED AREA. THE A.O. FURTHER STATED THA T SHRI RAJESH O. MALPANI, HAD ACCEPTED THAT THEY HAVE RECORDED THE BUSINESS TRANSACTION MADE WITH THE ASSESSEE IN THEIR BOOKS O F ACCOUNT AND THE AMOUNTS NOT RECORDED IN THE BOOKS OF ACCOUNT HA VE BEEN OFFERED TO TAX AS INCOME. THE LD. CIT(A), VIDE PARA-14.2, O BSERVED THAT IN VIEW OF THE ABOVE SPECIFIC REPLIES GIVEN B Y SHRI RAJESH O. MALPANI, IT CANOT BE SAID THAT THE ALLEGED CASH PAYMEN T OF RS.16,51,445/-AND RS.10,80,207/- HAS BEEN MADE BY THE APPELLANT TO SRPL. IT HAS ALSO BEEN POINTED OUT BY SHR I 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 JAGANNAT H 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 REPL Y GIVEN BY RAJESH O. MALPANI, TO THE ABOVE Q.NO.17. THE CIT(A) IN VIEW THEREOF DELETED THE ADDITION AGAIN ST WHICH THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 9. WE FIND THAT SIMILAR ISSUE OF CASH PREMIUM IN RES PECT OF GAI CHAP ZARDA AROSE BEFORE THE TRIBUNAL IN THE CASE OF ITO V/S M/S. PARAKH AGENCY IN ITA NO.1112/PN/2013, RELATING TO ASS ESSMENT 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 AN D SEIZURE ACTION U/S.132 OF THE I.T. ACT WAS CARRIED ON IN THE 5 ITA NO.353/PN/2014 M/S. BALAJI AGENCIES 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 THE 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 D EALERS IN F.YS. 2008-09 AND 2009-10 WHICH IS UNACCOUNTED INCOM E OF SARGAM RETAIL PVT. LTD. FURTHER, IN THE STATEMENT RECORDED U/S.132(4) ON 03-12-2009, SHRI RAJESH O. MALPANI HAS GI VEN 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.(BAG S) UNACCOUN-TED CASH COLLECTED (RS.) PARAKH AGENCIES NANDGAON PAN AAFFP671 7L 8478 777190 11190 1103915/- 1881105/- IN VIEW OF THE ABOVE INFORMATION THE AO HAS ASKED T HE 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. I N RESPONSE TO THIS QUERY OF THE AO, THE ASSESSEE FILED DETAI LS OF TRANSACTIONS WITH SARGAM RETAILS PVT. LTD. SANGAMNER AN D DENIED ANY SUCH PAYMENT OF RS.7,77,190/- TO SARGAM RETAILS PVT. LTD. SANGAMNER. HOWEVER, THE AO REJECTED TH E 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 R ETAILS PVT. LTD. DURING SEARCH ACTION IN THE CASE OF THE SAI D CO. IN SUPPORT OF THIS ADDITION, THE AO RELIED ON THE DECISI ON OF HON'BLE ITAT, DELHI IN THE CASE OF HERSH WIN CHADHA VS . DDIT. THE AO, RELYING ON THE ABOVE DECISION OBSERVED TH AT UNLIKE CRIMINAL PROCEEDINGS, THE CHARGE IS NOT REQUIRE D TO BE PROVED BEYOND DOUBT IN THE CASE OF INCOME TAX PROCE EDINGS. THE TECHNICAL RULES CONTAINED IN THE INDIAN EVIDENCE ACT ARE NOT APPLICABLE IN THE INCOME TAX PROCEEDINGS. IN CLA NDESTINE 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, SURROUND ING CIRCUMSTANCES, PREPONDERANCE OF PROBABILITIES AND EVI DENCE AVAILABLE ON RECORD. 3.1 THE AO FURTHER NOTICED THAT DURING THE IMPUGNED Y EAR 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 ASSESSEE TO EXPLAIN AS TO WHY IT SHOULD 6 ITA NO.353/PN/2014 M/S. BALAJI AGENCIES NOT BE TREATED THAT IN RESPECT OF BALANCE QUANTITY O F 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 ASSE SSEE DENIED ANY SUCH COLLECTION AND REPLIED TO THE ASSESSI NG OFFICER ACCORDINGLY. THE ASSESSING OFFICER, HOWEVER, R EJECTED 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 UPHOLDIN G THE ORDER OF THE CIT(A) OBSERVING AS UNDER:- 7. WE HAVE CONSIDERED THE ARGUMENTS ADVANCED BY TH E LD. DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATER IAL ON RECORD. WE FIND THE ASSESSING OFFICER, BASED ON T HE STATEMENT RECORDED U/S.132(4) OF SHRI RAJESH O. MALPAN I, 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 THE PRODUCT TO THE DEALERS. WE FIND THE LD.CIT(A) DELETED THE ADDITION MADE BY THE ASSESSING OFFICER ON THE GROUND THAT THE ASSESS ING OFFICER HAS NOT ALLOWED CROSS EXAMINATION OF SHRI RAJ ESH O. MALPANI, DIRECTOR OF SARGAM RETAILS PVT. LTD. BY THE ASSES SEE ALTHOUGH IT WAS SPECIFICALLY RAISED BEFORE THE ASSESS ING OFFICER. HE FURTHER HELD THAT ADDITION CANNOT BE MADE ON THE BASIS OF A STATEMENT RECORDED ON OATH UNLESS OPPORTU NITY OF CROSS EXAMINATION IS GIVEN TO THE ASSESSEE. THE LD. CIT(A) HAS FURTHER OBSERVED THAT EVEN IF IT IS ACCEPTED TH AT ASSESSEE HAS PAID THE EXCESS AMOUNT TO SARGAM RETAILS PVT. LTD ., SAME ARE COLLECTED ON BEHALF OF SARGAM RETAILS PVT. LT D. FROM VARIOUS RETAILERS AND THE RESULTANT INCOME OF THE AS SESSEE ON THESE TRANSACTIONS WILL BE NIL. THIS REASONED FINDING BY THE LD.CIT(A) IN OUR OPINION DOES NOT SUFFER FROM ANY INFI RMITY IN ABSENCE OF ANY CONTRARY MATERIAL BROUGHT TO OUR NOTICE BY TH E LD. DEPARTMENTAL REPRESENTATIVE. THEREFORE, THE ADDITI ON 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 REVENU E 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 84 78 BAGS. THE LD.CIT(A) HAS GIVEN A FINDING THAT THIS ADD ITION OF THE ASSESSING OFFICER IS NOT SUPPORTED BY ANY EVIDE NCE. THE LD. DEPARTMENTAL REPRESENTATIVE ALSO COULD NOT BRING A NY MATERIAL TO CONTROVERT THE FINDING GIVEN BY THE LD.CIT (A) WHICH ACCORDING TO THE LD.CIT(A) IS BASED ON ASSUMPTI ON, PRESUMPTION AND SUSPICION. IN VIEW OF THE ABOVE, THE ORDER OF THE CIT(A) DELETING THE ADDITION OF RS.2,86,193/- IN OU R OPINION, ALSO DOES NOT SUFFER FROM ANY INFIRMITY. ACCO RDINGLY, THE SAME IS UPHELD. GROUND OF APPEAL NO.2 BY THE REVEN UE 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 OFFICE R DATED 7 ITA NO.353/PN/2014 M/S. BALAJI AGENCIES 05-03-2013 THAT HE HAS ACCEPTED THAT NO CROSS EXAMINA TION 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 APPE AL ARE IDENTICAL TO THE FACTS AND ISSUE BEFORE THE TRIBUNAL IN THE CA SE 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 AD DITION OF RS.16,51,445/- AND RS.10,80,207/-. THE GROUNDS OF APPEAL RAIS ED BY THE REVENUE ARE THUS DISMISSED. 7. THE ISSUE RAISED IN THE PRESENT APPEAL IS IDENTICAL TO TH E ISSUE BEFORE THE TRIBUNAL IN ITO VS. SHRI DINESH SATYANARAYAN TA WANI, ITA NO.938/PN/2013 AND ITO VS. SHRI SANJAY MOHANLAL CHHAJED, ITA NO.1746/PN/2012 (SUPRA) AND FOLLOWING THE SAME PARITY OF RE ASONING, WE DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION MADE ON ACCOUNT OF UNACCOUNTED CASH PAYMENT OF RS.8,43,540/-. THUS, THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE ALLOWED. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 20 TH DAY OF FEBRUARY 2015. SD/- SD/- (R.K. PANDA) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 20 TH FEBRUARY, 2015 GCVSR COPY OF THE ORDER IS FORWARDED TO: - 1. THE ASSESSEE; 2. THE DEPARTMENT; 3. THE CIT(A)-IT/TP, PUNE; 4. THE CIT-IT/TP, PUNE; 5. THE DR B BENCH, I.T.A.T., PUNE; 6. GUARD FILE. BY ORDER //TRUE COPY// ASSISTANT REGISTRAR I.T.A.T., PUNE