SUNIL HITECH ENGINEERING LTD, MUMBAI V. DCIT 14(3)(2), MUMBAI

ITA 3617/MUM/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7010 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2005-2006
• Appeal Filed On: 17-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUN KUMAR SINGH LD
• Assessee Lawyers: V MOHAN LD
• Keywords: Unexplained cash credit; Opportunity of being heard; Source of fund; Corroborative evidences; Onus to prove; Revised return; Set aside
• Section: 143(3); 153A; 133(6); 143(2); 131; 68; 263; 132

Judgement Text

M/S SUNIL HITECH ENGINEERS LIMITED ASSESSMENT YEAR : 2005-06 & 2009-10 1 IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI , , BEFORE HONBLE SHRI PAWAN SINGH, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.3617/MUM/2017 ( / ASSESSMENT YEAR: 2005-06) SUNIL HITECH ENGINEERS L TD MET EDUCATIONAL COMPLEX 6 TH FLOOR, C WING A.K. VAIDYA MARG BANDRA RECLAMATION, BANDRA(W), MUMBAI-400 050 / VS. DEPUTY COMMIS SIONER OF INCOME TAX-14(3)(2) 4 TH FLOOR, AAYKAR BHAWAN M.K. ROAD MUMBAI-400 020 ./ ./PAN/GIR NO. AAFCS-7498-N ( /APPELLANT ) : ( / RESPONDENT ) & ./ I.T.A. NO.3616/MUM/2017 ( / ASSESSMENT YEAR: 2009-10) SUNIL HITECH ENGINEERS L TD MET EDUCATIONAL COMPLEX 6 TH FLOOR, C WING A.K. VAIDYA MARG BANDRA RECLAMATION, BANDRA(W), MUMBAI-400 050 / VS. DEPUTY COMMIS SIONER OF INCOME TAX-14(3)(2) 4 TH FLOOR, AAYKAR BHAWAN M.K. ROAD MUMBAI-400 020 ./ ./PAN/GIR NO. AAFCS-7498-N ( /APPELLANT ) : ( / RESPONDENT ) ASSESSEE BY : SHRI V. MOHAN, LD. AR REVENUE BY : CHAUDHARY ARUN KUMAR SINGH, LD.DR ! '# / DATE OF HEARING : 05/07/2019 ! '# / DATE OF PRONOUNCEMENT : 31/07/2019 / O R D E R M/S SUNIL HITECH ENGINEERS LIMITED ASSESSMENT YEAR : 2005-06 & 2009-10 2 PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEALS BY ASSESSEE FOR ASSESSMENT YEA RS [AY] 2005- 06 & 2009-10 AGITATE SEPARATE ORDERS OF FIRST APPEL LATE AUTHORITY. THE SAME ARE BEING DISPOSED-OFF BY WAY OF THIS COMMON O RDER FOR THE SAKE OF CONVENIENCE & BREVITY. ITA NO. 3617/MUM/2017, AY 2005-06 2. AGGRIEVED BY THE ORDER OF LD. COMMISSIONER OF IN COME-TAX (APPEALS)-22, MUMBAI, [CIT(A)], APPEAL NO. CIT(A)-22/IT/295/2015-16 DATED 22/02/2017, THE ASSESSEE HAS RAISED THE FOLLO WING GROUNDS OF APPEAL: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, LD. CIT(APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS.1,65,00,000/ - BEING SUBSCRIPTION TO THE SHARES IN THE CAPITAL OF THE ASSESSEE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT APPRECIATING THE DETAILS PROVIDED IN RESPECT OF THE SUBSCRIBERS TO THE SHARE CAPITALS CO MPRISING OF NAME, ADDRESS, PERMANENT ACCOUNT NUMBER AND THE SOURCE OF FUNDS. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT APPRECIATING THE FACT THAT 5 OUT OF 15 SUBSCRIBERS HAD RESPONDED TO SUMMONS ISSUED TO THEM FOR THEIR APPEARANCE AND WHO, IN FACT, HAD CONFIRMED THEIR SU BSCRIPTIONS. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, LD. CIT(APPEALS) ERRED IN CONFIRMING THE ADDITION MADE BY THE A.O. M ERELY ON THE GROUND THAT BALANCE SUBSCRIBERS HAD NOT RESPONDED TO THE S UMMONS WITHOUT APPRECIATING THE CORROBORATIVE EVIDENCES PLACED ON RECORD. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, LD. CIT(APPEALS) ERRED IN RELYING ON THE FACT THAT IN 2007-08 THE SU BSCRIBERS HAD SOLD THEIR SHARES AT REDUCED RATE TO THE MANAGING DIRECT OR OF THE ASSESSEE FOR THE PURPOSE OF HOLDING THE TRANSACTION AS NOT B EING GENUINE. 6. ASSESSEE CRAVES LEAVE TO AMEND OR ALTER THE EXIS TING GROUNDS OR ADD FURTHER GROUNDS AT THE TIME OF HEARING. 3.1 FACTS IN BRIEF ARE THAT THE ASSESSEE BEING RESIDENT CORPORATE ASSESSEE STATED TO BE ENGAGED AS SERVICE CONTRACTOR DURING IMPUGNED M/S SUNIL HITECH ENGINEERS LIMITED ASSESSMENT YEAR : 2005-06 & 2009-10 3 AY WAS ASSESSED U/S 143(3) READ WITH SECTION 263 BY LD. DEPUTY COMMISSIONER OF INCOME TAX CIRCLE-14(3)(2) , MUMBAI [AO] ON 31/03/2015. THE INCOME OF THE ASSESSEE WAS DETERMIN ED AT RS.544.85 LACS AFTER SOLE ADDITION U/S 68 FOR RS.165 LACS AS AGAINST INCOME OF RS.379.85 LACS ASSESSED U/S 143(3) READ WITH SECTION 153A ON 30/12/2011. THE SOLE SUBJECT MATTER OF PRESENT APPE AL BEFORE US IS ADDITION U/S 68 FOR RS.165 LACS. 3.2 THE ORIGINAL RETURN OF INCOME WAS FILED BY THE ASSESSEE AT RS.364.79 LACS WHICH WAS INITIALLY PROCESSED U/S 14 3(1). SUBSEQUENTLY, THE ASSESSEE WAS SUBJECTED TO SEARCH & SEIZURE ACTI ON U/S 132 ON 15/09/2009 WHEREIN CERTAIN INCRIMINATING DOCUMENTS WERE FOUND AND SEIZED. THE ASSESSMENT U/S 143(3) READ WITH SECTION 153A WAS COMPLETED BY LD. ACIT, CENTRAL CIRCLE, NAGPUR ON 30/12/2011 DETERMINING THE INCOME AT RS.379.85 LACS. 3.3 SUBSEQUENTLY, THE AFORESAID ORDER WAS SUBJECTED TO EXERCISE OF REVISIONAL JURISDICTION U/S 263 BY LD. COMMISSIONER OF INCOME TAX (CENTRAL), NAGPUR [CIT] VIDE ORDER DATED 28/03/2014 . THE BASIS OF THE REVISIONAL JURISDICTION WAS THE FACT THAT THE ASSES SEE HAD ALLOTTED CERTAIN SHARES DURING THE YEAR AT RS.60/- PER SHARE BUT THE SE WERE REPURCHASED @RS.12/- PER SHARE IN AY 2007-08. ALL THE SHARE ALL OTTEES WERE STATED TO BE BOGUS SUB-CONTRACTORS OF THE ASSESSEE ITSELF AND IT WAS ALLEGED THAT SHARE APPLICATION WAS NOTHING BUT UNACCOUNTED MONEY OF THE PROMOTERS WHICH WAS GENERATED BY BOOKING BOGUS SUB-CONTRACT E XPENDITURE IN THE NAME OF SUCH PERSONS. HOWEVER, IT WAS OBSERVED THAT LD. AO DID NOT SUMMON THESE PERSONS TO ASCERTAIN THE TRUE FACTS AN D LD. AO OUGHT TO HAVE EXAMINED THE SOURCE OF SUCH INVESTMENTS IN THE HANDS OF THE M/S SUNIL HITECH ENGINEERS LIMITED ASSESSMENT YEAR : 2005-06 & 2009-10 4 BUYERS AND OUGHT TO HAVE VERIFIED THEIR RESPECTIVE RETURN OF INCOME. IN THE ABOVE BACKGROUND, INVOKING THE PROVISIONS OF SE CTION 263, THE ORDER OF LD. AO ON THIS ISSUE WAS SET ASIDE FOR FRAMING O F FRESH ASSESSMENT BY CONDUCTING REQUISITE INQUIRIES. AS PER THE SAID DIR ECTIONS, NOTICE U/S 143(2) WAS ISSUED BY ACIT, CENTRAL CIRCLE, NAGPUR. IT HAS BEEN SUBMITTED THAT THE ASSESSEE HAS NOT CONTESTED THE I NVOCATION OF JURISDICTION U/S 263. 3.4 SUBSEQUENTLY, AS PER EXPRESS REQUEST OF THE ASS ESSEE AND IN VIEW OF CHANGE IN THE REGISTERED OFFICE OF THE ASSESSEE, THE CASE RECORDS ALONG WITH JURISDICTION WAS TRANSFERRED TO DCIT-10( 1), MUMBAI WHO ISSUED STATUTORY NOTICES DIRECTING ASSESSEE TO FILE THE REQUISITE INFORMATION / DOCUMENTS. 3.5 DURING SET-ASIDE PROCEEDINGS, IT TRANSPIRED TH AT THE ASSESSEE ALLOTTED SHARES TO VARIOUS PERSONS, NUMBERING 15 IN ALL, @RS.60/- PER SHARE. THE ALLOTMENT DETAILS & LIST OF ALLOTTEES HA S ALREADY BEEN EXTRACTED AT PARA 5 OF THE QUANTUM ASSESSMENT ORDER. AN OPIN ION WAS FORMED THAT ALL THE ALLOTTEES WERE NONE BUT SUB-CONTRACTORS OF THE ASSESSEE COMPANY ITSELF AND THE SHARE APPLICATION MONEY INVESTED BY THEM WAS NOTHING BUT UNACCOUNTED MONEY OF THE PROMOTERS OF THE COMPANY W HICH WAS GENERATED BY BOOKING BOGUS SUB-CONTRACT EXPENDITURE IN THE NAME OF SUCH PERSONS. THE ASSESSEE DREW ATTENTION TO THE FA CTS THAT ALL THE ALLOTTEES VOLUNTARILY AGREED TO SELL BACK THESE SHA RES DURING AY 2007-08 @RS.12/- PER SHARE. 3.6 NOTICES SENT U/S 133(6) TO SHARE ALLOTTEES FOR CONFIRMATION OF ACCOUNT ELICITED NO SATISFACTORY RESPONSE WHICH RES ULTED INTO ISSUANCE OF SUMMONS U/S 131 TO ALL THE 15 ALLOTTEES. HOWEVER, I N RESPONSE ONLY 5 M/S SUNIL HITECH ENGINEERS LIMITED ASSESSMENT YEAR : 2005-06 & 2009-10 5 PERSONS APPEARED AND THEIR STATEMENT WAS RECORDED U NDER OATH WHEREIN THESE PERSONS ADMITTED TO CARRY OUT FABRICATION AND ERECTION SERVICES FOR ASSESSEE AT VARIOUS POWER PLANT SITES AND CONFIRMED HAVING PURCHASED THE SHARES AGAINST OUTSTANDING BALANCE WITH THE COM PANY, WHICH LED THE LD. AO TO CONCLUDE THAT NO PAYMENT WAS MADE BY ANY OF THE ALLOTTEES TOWARDS PURCHASE OF SHARES. THE SUMMONS REMAINED UN SERVED IN THE CASE OF 9 PERSONS WHEREAS ONE PERSON DENIED HAVING APPLIED FOR ANY SHARE FROM THE ASSESSEE. 3.7 DURING THE COURSE OF SEARCH, VARIOUS INCRIMINAT ING DOCUMENTS WERE FOUND AND SEIZED FROM THE PREMISES OF THE ASSESSEE. THE SEIZED MATERIAL NUMBERED AS ANNEXURE-03 PAGE 1-31 CONTAINE D UNSIGNED MEMORANDUM OF UNDERSTANDING BETWEEN ALLOTTEES OF TH E SHARES AND THE ASSESSEE IN TERMS OF WHICH THE ALLOTTEES AGREED TO SELL THE SHARES @RS.70 PER SHARE. SINCE THE MOU WAS UNSIGNED AND ST AMP PAPERS OF RS.100 WERE PURCHASED IN APRIL, 2006, THE SAME LED THE LD. AO TO BELIEVE THAT THE INTENTION OF THE ASSESSEE WAS TO D EAL WITH THE SHARES OF THE ALLOTTEES AS AND WHEN REQUIRED. FURTHER, THE SH ARES WERE ALLOTTED WITHOUT ANY RECEIPT OF MONEY BUT MERELY ISSUED AGAI NST OUTSTANDING AMOUNT OF THE SHARE ALLOTTEES. A SCANNED COPY OF UN SIGNED MOU HAS BEEN MADE A PART OF QUANTUM ASSESSMENT ORDER. 3.8 THE ASSESSEE, IN RESPONSE TO SHOWCASE NOTICE DA TED 04/03/2015, REITERATED THAT ALL THE ALLOTTEES WERE SUB-CONTRACT ORS AND DETAILS OF THERE RESPECTIVE PAN, ADDRESSES, COPIES OF LEDGERS AND WO RK ORDERS OF THESE PARTIES WERE ALREADY PROVIDED TO LD. AO. FURTHER, T HE 4 PERSONS HAD ALREADY CONFIRMED THE STATED TRANSACTIONS IN RESPON SE TO SUMMONS U/S 131. HOWEVER, NOT CONVINCED, LD. AO OPINED THAT THE ASSESSEE FAILED TO M/S SUNIL HITECH ENGINEERS LIMITED ASSESSMENT YEAR : 2005-06 & 2009-10 6 DEMONSTRATE THE FULFILMENT OF PRIMARY CONDITIONS OF SECTION 68 AND THEREFORE, TREATING THE AMOUNT OF RS.165 LACS (NO. OF SHARES 2,75,000 X RS.60/- PER SHARE) AS UNEXPLAINED CASH CREDIT, ADDED THE SAME TO THE INCOME OF THE ASSESSEE. 4.1 AGGRIEVED, THE ASSESSEE AGITATED THE SAME WITHO UT ANY SUCCESS BEFORE LD. FIRST APPELLATE AUTHORITY VIDE IMPUGNED ORDER DATED 22/02/2017 WHEREIN THE ASSESSEE SUBMITTED THAT COMPLETE DETAIL S OF SHARE ALLOTTEES VIZ. NAME, ADDRESS AND RESPECTIVE PAN WAS AVAILABLE ON RECORD AND THE ALLOTMENT WERE MADE AGAINST THE OUTSTANDING OF RESP ECTIVE ALLOTTEES WHO WERE ASSESSEES SUB-CONTRACTORS. THE ATTENTION WAS DRAWN TO THE FACT THAT NO DISALLOWANCE WAS MADE ON ACCOUNT OF BOGUS P AYMENTS TO CONTRACTORS AND THEREFORE, THE ADDITIONS WERE MADE ON THE BASIS OF MERE SUSPICION, CONJECTURES & SURMISES. 4.2 HOWEVER, LD. CIT(A), AFTER DUE CONSIDERATION OF FACTUAL MATRIX AND ASSESSEES SUBMISSIONS CAME TO A CONCLUSION THAT TH E ASSESSEE FAILED TO PROVE THE GENUINENESS AND CREDITWORTHINESS OF THE T RANSACTIONS. THE CAPACITY OF THE SHARE ALLOTTEES TO INCUR CORRESPOND ING EXPENDITURE ON BEHALF OF THE ASSESSEE COULD NOT BE EVIDENCED. FURT HER, THE SHARES WERE STATED TO BE REPURCHASED AT RS.12/- PER SHARE DURIN G AY 2007-08 WHICH WOULD ESTABLISH THAT THE TRANSACTIONS WERE NOT GENU INE. RESULTANTLY, THE ADDITIONS WERE CONFIRMED, AGAINST WHICH THE ASSESSE E IS IN FURTHER APPEAL BEFORE US. 5. THE LD. AUTHORIZED REPRESENTATIVE FOR ASSESSEE [ AR], SHRI V.MOHAN, SUBMITTED THAT THE SHARES WERE ALLOTTED TO VARIOUS SUB- CONTRACTORS OF THE ASSESSEE AGAINST THEIR RESPECTIV E OUTSTANDING AMOUNT. THESE WERE ASSESSEES REGULAR SUB-CONTRACTORS WHO C ARRIED OUT VARIOUS M/S SUNIL HITECH ENGINEERS LIMITED ASSESSMENT YEAR : 2005-06 & 2009-10 7 WORK FOR THE ASSESSEE. THE COMPLETE DETAILS OF THE SHARE ALLOTTEES WAS PROVIDED BY THE ASSESSEE ALONG WITH THEIR ADDRESSES AND PAN AND THEREFORE, THE PRIMARY INGREDIENTS OF SECTION 68 WE RE DULY FULFILLED BY THE ASSESSEE. RELIANCE HAS BEEN PLACED ON FOLLOWING JUD ICIAL PRONOUNCEMENTS TO SUPPORT THE AFORE-SAID SUBMISSION S: - NO. CASE LAWS AUTHORITY CITATION 1. CIT VS. GAGANDEEP INFRASTRUCTURE P. LTD. HONBLE BOMBAY HIGH COURT 394 ITR 680 2. CIT VS. ORCHID INDUSTRIES P. LTD. HONBLE BOMBAY HIGH COURT ITA 1433 OF 2014 DATED 05/07/2017 3. ACQUATIC REMEDIES PVT LTD. VS DCIT ITAT, MUMBAI ITA NOS. 6356-57/M/2014 DATED 17/04/2015 (REVENUES APPEAL DISMISSED BY HONBLE BOMBAY HIGH COURT) 4. ITO VS SUPERLINE CONSTRUCTION P LTD. & OTHERS ITAT, MUMBAI ITA NO. 3645/MUM/2014 DATED 30/11/2015 PER CONTRA, LD. DR SUBMITTED THAT ONLY FIVE PERSONS CONFIRMED THE TRANSACTIONS OUT OF 15 PARTIES, WHICH SHOWS THAT TH E ASSESSEE MISERABLY FAILED TO PROVE THE TRANSACTIONS. RELIANCE HAS BEEN PLACED ON THE DECISIONS OF HONBLE DELHI HIGH COURT RENDERED IN PCIT VS. NDR PROMOTERS PVT. LTD. [ITA 49/2018 DATED 17/01/2019]. 6. WE HAVE CAREFULLY HEARD THE RIVAL CONTENTIONS AN D PERUSED RELEVANT MATERIAL ON RECORD AND DELIBERATED ON JUDICIAL PRON OUNCEMENTS AS CITED BY RESPECTIVE REPRESENTATIVES. THE UNDISPUTED POSIT ION THAT EMERGES IS THAT THE ASSESSEE HAS ALLOTTED CERTAIN SHARES TO 15 PARTIES @RS.60/- PER SHARES. ALL THESE PERSONS ARE STATED TO BE THE SUB- CONTRACTORS OF THE ASSESSEE AND THE SHARES ARE SAID TO HAVE BEEN ALLOT TED AGAINST THEIR RESPECTIVE OUTSTANDING AGAINST THE ASSESSEE. HOWEVE R, NOTICES ISSUED TO CONFIRM THE TRANSACTIONS REMAINED UN-RESPONDED TO I N NINE CASES WHEREAS ONE ENTITY DENIED HAVING ENTERED INTO ANY S UCH TRANSACTIONS WITH THE ASSESSEE. THE SAID FACT HAS LED THE LOWER AUTHORITIES TO M/S SUNIL HITECH ENGINEERS LIMITED ASSESSMENT YEAR : 2005-06 & 2009-10 8 DISBELIEVE THE GENUINENESS OF THE TRANSACTIONS. WE ARE OF THE CONSIDERED OPINION THAT THE INITIAL ONUS TO PROVE THE IDENTITY , CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTIONS WAS UPON ASSESSEE W HICH ASSESSEE HAS FAILED TO DISCHARGE. THE REVISIONAL JURISDICTIO N U/S 263 WAS INVOKED AGAINST THE ASSESSEE WITH SPECIFIC DIRECTIONS TO LD . AO TO CARRY OUT REQUISITE INQUIRIES QUA THE TRANSACTIONS. THE ASSESSEE COULD NOT PRODUCE PARTIES TO CONFIRM THE TRANSACTIONS IN CONTRAST TO THE FACT THAT ALL THE ALLOTTEES WERE STATED TO BE ASSESSEES SUB-CONTRACT OR AND THE SHARES WERE REPURCHASED DURING AY 2007-08 FROM THESE ALLOT TEES. THE ASSESSEE FAILED TO REBUT THE ALLEGATIONS OF THE REV ENUE THAT UNACCOUNTED MONEY WAS ROUTED BACK IN THE SHAPE OF SHARE ALLOTME NT. THEREFORE, ON THE FACTS AND CIRCUMSTANCES, WE DEEM IT FIT TO PROV IDE ANOTHER OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE THESE T RANSACTIONS BEFORE LD. AO AS PER THE DIRECTIONS GIVEN IN THE REVISIONAL OR DER U/S 263. THE MATTER STAND REMITTED BACK TO THE FILE OF LD. AO WITH A DI RECTION TO THE ASSESSEE TO ESTABLISH FULFILMENT OF PRIMARY INGREDIENTS OF S ECTION 68. NEEDLESS TO ADD THAT ADEQUATE OPPORTUNITY OF BEING HEARD SHALL BE GRANTED TO THE ASSESSEE. 7. IN RESULT, THE APPEAL STANDS ALLOWED FOR STATIST ICAL PURPOSES. ITA NO. 3616/MUM/2017: AY 2009-10 8.1 IN THIS AY, THE ASSESSEE IS AGGRIEVED BY CONFIR MATION OF ADDITION OF RS.118.81 LACS BY LD. COMMISSIONER OF INCOME TAX (A PPEALS)-22, MUMBAI [CIT(A)], APPEAL NO. CIT(A)22/IT/296/2015-16 VIDE IMPUGNED ORDER DATED 23/02/2017 IN THE MATTER OF ASSESSMENT FRAMED BY LD. AO U/S 143(3) R.W.S. 263 ON 31/03/2015. M/S SUNIL HITECH ENGINEERS LIMITED ASSESSMENT YEAR : 2005-06 & 2009-10 9 8.2 THE RELEVANT FACTS ARE THAT THE ASSESSEE HAD FI LED ITS RETURN OF INCOME ON 30/09/2009 AT RS.38.47 CRORES WHICH WAS P ROCESSED U/S 143(1). A SEARCH & SEIZURE ACTION WAS CONDUCTED ON BUSINESS PREMISES OF THE ASSESSEE ON 15/09/2009 WHEREIN CERTAIN INCRI MINATING MATERIAL WAS FOUND. THE ASSESSEE FILED REVISED RETURN OF INC OME DECLARING INCOME OF RS.85.83 CRORES WHICH WAS ASSESSED U/S 143(3) R. W.S. 153A ON 30/12/2011 AT RS.85.83 CRORES. THE INCOME WAS REASS ESSED ON 29/04/2014 AT RS. 86 CRORES. 8.3 HOWEVER, IN THE MEANTIME, LD. COMMISSIONER OF I NCOME TAX (CENTRAL), NAGPUR, UPON PERUSAL OF CASE RECORDS OF ASSESSMENT FRAMED U/S 153A ON 30/12/2011, EXERCISE REVISIONAL JURISDI CTION U/S 263 VIDE ORDER DATED 28/03/2014. THE SAID JURISDICTION STEM FROM THE FACT THAT THE ASSESSEE HAD PURCHASED CERTAIN CRANES FROM M/S DHAR MESH STEEL FOR RS.118.81 LACS AND PAID THE SAME IN CASH. THE COMPA NY HAD TO PAY RS.209 LACS TO DHARMESH STEEL OUT OF WHICH RS.90 LA CS WERE TO BE WITHHELD ON ACCOUNT OF SHORT MATERIAL SUPPLY, VAT E TC. AND THE BALANCE AMOUNT OF RS.119 LACS WAS ALLEGED TO BE PAID IN CAS H. ACCORDINGLY, THE MATTER WAS SET ASIDE TO LD. AO FOR FRESH ADJUDICATI ON. IT HAS BEEN SUBMITTED THAT THE ASSESSEE HAS NOT CHALLENGED THE AFORESAID JURISDICTION U/S 263. 8.4 DURING SET ASIDE PROCEEDINGS, SUMMONS WAS ISSUE D U/S 131 TO M/S DHARMESH STEEL, HOWEVER, THE SAME WERE RETURNED BAC K UNDELIVERED. UPON CONFRONTATION, THE ASSESSEE, VIDE REPLY DATED 13/03/2015, SUBMITTED THAT ALL THE BILLS OF THE PARTY WERE ACCO UNTED FOR IN THE BOOKS OF ACCOUNTS AND ALL DOCUMENTS INCLUDING LEDGER FOR FY 2007-08 & 2008-09 WAS PRODUCED FOR VERIFICATION. THE ATTENTION WAS DR AWN TO THE FACT THAT M/S SUNIL HITECH ENGINEERS LIMITED ASSESSMENT YEAR : 2005-06 & 2009-10 10 THE AMOUNT OF RS.118 LACS ALLEGED TO BE PAID IN CAS H WAS, IN FACT, PAID THROUGH UCO BANK TERM LOAN ON 16/05/2008. HOWEVER, THE ASSESSEES EXPLANATION COULD NOT CONVINCE LD. AO WHO ADDED THE AMOUNT OF RS.118.81 LACS IN THE HANDS OF THE ASSESSEE. 8.5 ALTHOUGH, THE ASSESSEE PREFERRED FURTHER APPEAL AGAINST THE SAME, HOWEVER, THE ASSESSEES STAND COULD NOT FIND FAVOR WITH LD. FIRST APPELLATE AUTHORITY. AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 9. THE LD. AR HAS DRAWN OUR ATTENTION TO THE LEDGER EXTRACTS, COPIES OF INVOICES ISSUED BY M/S DHARMESH STEEL AND COPIES OF ITS OWN BANK STATEMENTS TO SUBMIT THAT ALL THE TRANSACTIONS WERE DULY ACCOUNTED FOR IN THE BOOKS OF ACCOUNTS AND ALL THE PAYMENTS WERE THR OUGH BANKING CHANNELS. IN FACT, AS PER THE DIRECTION OF THE BENC H, THE LD. AR HAS FILED LEDGER OF THE PARTY AS STANDING IN ITS OWN BOOKS OF ACCOUNTS, RECONCILIATION OF THE ACCOUNTS, COPIES OF INVOICES, FREIGHT RECEIPTS ETC. TO CORROBORATE THE FACT THAT THERE WAS NO CASH PAYMENT AS ALLEGED BY THE REVENUE. WE HAVE GONE THROUGH THE SAME AND FIND SOM E SUBSTANCE. WE FIND THAT REVENUE HAS NOT BROUGHT ON RECORD ANY MAT ERIAL TO SUBSTANTIATE THE ALLEGATION OF CASH PAYMENT MADE BY THE ASSESSEE TO M/S DHARMESH STEEL. THEREFORE, KEEPING IN VIEW THE FACTS AND CIR CUMSTANCES, WE DEEM IT FIT TO RESTORE THE MATTER BACK TO THE FILE OF LD . AO TO RE-APPRECIATE THE DOCUMENTARY EVIDENCES BEING SUBMITTED BY THE ASSESS EE AND CONFRONT THE ALLEGATION OF CASH PAYMENT WITH REQUISITE EVIDE NCES. THE ASSESSEE, IN TURN, IS DIRECTED TO SUBSTANTIATE THE TRANSACTIO NS BEING REFLECTED BY HIM AGAINST THE SAID PARTY AND REBUT THE ALLEGATIONS OF THE REVENUE, FAILING WHICH LD. AO SHALL BE AT LIBERTY TO ADJUDICATE THE SAME ON THE BASIS OF M/S SUNIL HITECH ENGINEERS LIMITED ASSESSMENT YEAR : 2005-06 & 2009-10 11 MATERIAL ON RECORD. NEEDLESS TO ADD THAT ADEQUATE O PPORTUNITY OF BEING HEARD SHALL BE PROVIDED TO THE ASSESSEE. 10. IN RESULT, THE APPEAL STANDS ALLOWED FOR STATIS TICAL PURPOSES. CONCLUSION 11. BOTH THE APPEAL STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST JULY, 2019. SD/- SD/- (PAWAN SINGH) (MAN OJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : SR.PS, THIRUMALESH/SR.PS JAISY VARGHESE / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. '# ! / THE RESPONDENT 3. $$% ( ) / THE CIT(A) 4. $$% / CIT CONCERNED 5. &''() , $) , / DR, ITAT, MUMBAI 6. '+, / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.