SAVITA J PUROHIT, MUMBAI V. ASST CIT 25(2), MUMBAI

ITA 3780/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3633 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 24-02-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 13-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJUNATHA SWAMY; A RAMACHANDRAN
• Keywords: Unexplained cash credit; Additional evidence
• Section: 143(3); 68

Judgement Text

E IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO. 3780 /MUM/2013 ( / ASSESSMENT YEAR : 2005-06) MRS. SAVITA J. PUROHIT, 3/35, RAJENDRA NAGAR CHSL, DATA PADA ROAD, BORIVALI (E), MUMBAI 400 066. / V. ASSISTANT COMMISSIONER OF INCOME TAX 25(2), MUMBAI. ./ PAN : AGUPP5547R ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY SHRI DILIP KUMAR REVENUE BY : SHRI A. RAMACHANDRAN , DR & SHRI MANJUNATHA SWAMY, CIT DR / DATE OF HEARING : 24-2-2016 / DATE OF PRONOUNCEMENT : 13-05-2016 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER THIS APPEAL, FILED BY THE ASSESSEE, BEING ITA NO. 3780/MUM/2013, IS DIRECTED AGAINST THE APPELLATE ORDER DATED 19-02-20 13 PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- 35, MUMBAI (H EREINAFTER CALLED THE CIT(A) ), FOR THE ASSESSMENT YEAR 2005-06, THE APP ELLATE PROCEEDINGS BEFORE THE CIT(A) ARISING FROM THE PENALTY ORDER DATED 23- 3-2010 PASSED BY THE LEARNED ASSESSING OFFICER (HEREINAFTER CALLED THE AO) U/S 271(1)(C) OF THE INCOME TAX ACT,1961(HEREINAFTER CALLED THE ACT). ITA 3780/MUM/2013 2 2. THE GROUNDS RAISED BY THE ASSESSEE IN THE MEMO O F APPEAL FILED WITH THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI (HEREINAFTER CALLED THE TRIBUNAL) READS AS UNDER:- 1. THAT THE LEARNED ASSISTANT COMMISSIONER OF INCOME T AX - 25(2), MUMBAI HAS GROSSLY ERRED IN LAW AND ON THE FACTS AND CIRCUMSTANCES OF THE CASE IN IMPOSING PENALTY OF RS. 31,16,758/- U/S. 271 (1 )(C) OF THE INCOME TAX ACT, 1961 WITHOUT PROPERLY APPRECIATING TH E ACTUAL CASE OF THE APPELLANT AND THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 35, MUMBAI HAS GROSSLY ERRED IN LAW AND ON THE FACTS AND CIRCUMSTANCES OF THE CASE IN CONFIRMING THE PENALTY O F RS. 31,16,758/- IMPOSED U/S. 271 (1 )(C) OF THE INCOME TAX ACT, 1961 WITHOUT PROPERLY APPRECIATING THE ACTUAL CASE OF THE APPELLANT. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEA LS) - 35, MUMBAI HAS GROSSLY ERRED IN LAW AND ON THE FACTS AND CIRCUMSTANCES OF THE CASE IN NOT ACCEPTING THE ADDITIONAL EVIDENCE SUBM ITTED BY THE ASSESSEE FOR ESTABLISHING THE GENUINENESS OF TRANSACT ION, IDENTITY OF DEPOSITORS AND CREDITWORTHINESS OF DEPOSITORS. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS A CIVIL CONTRACTOR AND PROPRIETOR OF M/S SAVITA ENTERPRISES. THE ASSESSME NT U/S 143(3) OF THE ACT WAS COMPLETED ON 26.12.2007 WHEREBY THE TOTAL INCOM E WAS ASSESSED AT RS. 1,67,21,950/- AS AGAINST RETURNED INCOME OF RS. 10, 46,173/-. THE ASSESSEE ALSO DECLARED AGRICULTURAL INCOME OF RS. 24,57,633/ - IN THE RETURN OF INCOME FILED WITH THE REVENUE, WHICH WAS CLAIMED AS AN EXE MPT INCOME. THE A.O. HAS MADE THE FOLLOWING DISALLOWANCES/ADDITIONS TO T HE INCOME IN THE HANDS OF THE ASSESSEE WHILE FRAMING THE ASSESSMENT U/S 143( 3) OF THE ACT:- I) DISALLOWANCE U/S 40(A)(IA) OF THE ACT RS. 63,16,2 42/- II) OUT OF LABOUR CHARGES RS. 1,00,000/- III) UNEXPLAINED CASH CREDIT U/S 68 RS. 92,59,530/- PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT WERE I NITIATED AGAINST THE ASSESSEE WITH RESPECT TO THE ADDITIONS ON ACCOUNT O F UNEXPLAINED CASH CREDIT OF RS.92,59,530/- U/S. 68 OF THE ACT. ITA 3780/MUM/2013 3 DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S 143 (3) READ WITH SECTION 143(2) OF THE ACT, IT WAS OBSERVED BY THE A.O. THAT THE ASSESSEE HAS RECEIVED UNSECURED LOANS TO THE EXTENT OF RS. 1,32,93,000/- , OUT OF WHICH THE ASSESSEE HAS SHOWN TO HAVE ACCEPTED CASH LOAN OF RS . 92,59,530/- FROM VARIOUS PARTIES. THE LOAN CONFIRMATION OF THE LEND ERS BARRING FEW WERE NOT FILED BY THE ASSESSEE BEFORE THE AO. SINCE THE FIN ANCIAL CAPACITY OF THE LENDERS WAS NOT PROVED BY THE ASSESSEE, AS ASSESSEE FAILED TO PRODUCE THE GENUINENESS OF THE LOAN TRANSACTION, CREDITWORTHINE SS AND IDENTITY OF THE LENDERS, THE A.O. MADE ADDITION U/S 68 OF THE ACT A MOUNTING TO RS. 92,59,530/- WITH RESPECT TO THE CASH LOANS OF RS.92 ,59,530/- RECEIVED BY THE ASSESSEE DURING THE PREVIOUS YEAR RELEVANT TO THE A SSESSMENT YEAR, VIDE ASSESSMENT ORDER DATED 26.12.2007 PASSED U/S. 143(3 ) OF THE ACT. DURING THE PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT, THE ASSESSEE WAS ASKED TO PRODUCE THE LOAN CONFIRMATIONS, ADDRESSES AND PAN OF THE LOAN CREDITORS FROM WHOM THE LOANS OF RS.92,59,530/- WER E RECEIVED IN CASH BY THE ASSESSEE DURING THE PREVIOUS YEAR RELEVANT TO THE A SSESSMENT YEAR. THE ASSESSEE HAD RECEIVED CASH LOAN FROM 47 PARTIES AGG REGATING TO RS.92,59,530/- DURING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR. THE NAMES OF THE 47 PARTIES SUBMITTED BY THE ASSESSEE, FROM WHOM CASH LOANS WERE RECEIVED BY THE ASSESSEE AGGREGATING TO RS.92, 59,530/- HAS BEEN SPECIFIED IN THE PENALTY ORDERS DATED 23-03-2010 PA SSED BY THE AO U/S 271(1)(C) OF THE ACT, PAGES 3-6. THE ASSESSEE SUBMI TTED THAT THESE CASH LOANS WERE RECEIVED FROM CLOSE FAMILY MEMBERS BEING BLOOD RELATIONS WHO ARE STAYING IN JALORE, DISTRICT RAJASTHAN WHERE THEY AR E ENGAGED IN AGRICULTURAL ACTIVITIES AND BEING A REMOTE VILLAGE , BANKING FAC ILITY WERE NOT AVAILABLE. THE ASSESSEE SUBMITTED THAT THERE WAS SUNDAY ON THE EA RLIER DAY WHEN CASH LOANS WERE ACCEPTED. THE ASSESSEE IS IN CIVIL CONTR ACT BUSINESS AND THE SAME IS LABOUR ORIENTED BUSINESS AND HENCE CASH PAYMENTS ARISING FROM DAY TO DAY ITA 3780/MUM/2013 4 BASIS WERE DISBURSED OUT OF CASH LOAN OF RS.92,59,5 30/-- RECEIVED BY THE ASSESSEE, AS SUBMITTED BY THE ASSESSEE. AS PER THE ASSESSE, THE CASH LOANS ARE RETURNABLE AS AND WHEN FEASIBLE. MOSTLY THE LE NDERS ARE AGRICULTURALIST AND THEIR CROP IN CASH AND BEING REMOTE VILLAGE BAN KING IS NOT THERE AND PEOPLE THERE ARE NOT HABITUAL WITH BANKING TRANSACT IONS WERE THE SUBMISSIONS OF THE ASSESSEE. AS PER THE AO, THE CREDITWORTHINESS OF THE LENDERS WERE NOT PRODUCED DURING ASSESSMENT PROCEEDINGS. THE LOAN CONFIRMATIONS WERE NOT SUBMITTED BY THE ASSESSEE BEFORE THE REVENUE. THE ADDRESSES OF THE L ENDERS WERE ALSO NOT COMPLETE. THE LOAN CREDITORS WERE ALSO NOT PRODUCED BEFORE THE AO.NO FINANCIAL DOCUMENTS WERE SUBMITTED BEFORE THE REVEN UE THAT THE LENDERS WERE FINANCIALLY CAPABLE OF GIVING THESE CASH LOANS. WIT H RESPECT TO THE GENUINENESS OF THE LOAN, THE ASSESSEE MERELY SUBMITTED THAT THE LENDERS ARE AGRICULTURIST, THE ASSESSEEE BEING BUSINESS WOMEN IN MUMBAI WAS FU LLY AWARE OF THE PROVISIONS OF SECTION 269SS OF THE ACT AS SHE WAS A VAILING SERVICES OF TAX PROFESSIONAL . AS PER THE AO , THE ASSESSEE WAS FUL LY AWARE THAT THE EXEMPTION FROM RECEIVING CASH LOANS CAN BE GRANTED IF BOTH TH E LENDER AND THE BORROWER ARE AGRICULTURIST AND NEITHER OF THEM HAVE ANY INCO ME CHARGEABLE TO TAX. THUS, THE ASSESSEE HAVING FAILED TO PROVE THE IDENT ITY AND CREDITWORTHINESS OF THE LENDERS NOR COULD DISCHARGE THE BURDEN OF PROVI NG THE GENUINENESS OF THE TRANSACTION AND THE ASSESSEE HAS INTRODUCED OWN MO NEY BY GIVING THE NAME OF UNSECURED LOANS AND INTRODUCED THE SAME IN HER BOOKS OF ACCOUNTS IN THE ASSESSMENT YEAR, THE ADDITIONS WERE MADE BY THE AO U/S 68 OF THE ACT VIDE ASSESSMENT ORDERS DATED 23.03.2010 PASSED U/S 143(3 ) OF THE ACT. THE A.O. DURING PENALTY PROCEEDINGS U/S 271(1)(C) O F THE ACT NOTED THAT THE ADDITIONS MADE BY THE A.O. IN QUANTUM PROCEEDINGS W ERE ACCEPTED BY THE ASSESSEE BEFORE THE LEARNED CIT(A) . THE LEARNED CI T(A) DISMISSED THE APPEAL ITA 3780/MUM/2013 5 IN QUANTUM PROCEEDINGS AS THE ASSESSEE IS UNABLE TO PROVE THE CREDITWORTHINESS AS WELL AS GENUINENESS OF THE TRAN SACTION. THE ASSESSEE DURING PENALTY PROCEEDINGS U/S. 271(1) (C) OF THE ACT SUBMITTED THAT THE ASSESSEE HAS NEVER ACCEPTED THAT THE MONE Y BELONGS TO HER. THE ASSESSEE WAS NOT INFORMED BY THE TAX CONSULTANT TO PRODUCE THE BOOKS OF ACCOUNTS. THE ASSESSEE SUBMITTED THAT SHE RECEIVED THE MONEY FROM THE THIRD PERSON(S) AND THE ASSESSEE IS READY TO PROVE THE ID ENTIFICATION/ CREDITWORTHINESS AND SOURCE OF MONEY AND THE TRANSA CTION. THE ASSESSEE SUBMITTED THAT SHE HAS FILED APPEAL AGAINST THE QUA NTUM PROCEEDINGS BEFORE THE TRIBUNAL AND SHE ACTED BONAFIDELY. THE ASSESSEE SUBMITTED THAT SHE WAS NOT REPRESENTED PROPERLY BY THE EARLIER TAX CONSULT ANT IN QUANTUM ASSESSMENT PROCEEDINGS AND SHE WORKED UNDER THE BON AFIDES OF THE EARLIER TAX CONSULTANT AND THE ASSESSEE IS NOT AWARE AS TO WHAT HE HAS DONE DURING THAT PERIOD WITHOUT THE KNOWLEDGE / COMMUNICATION O F THE ASSESSE. THE A.O. AFTER CONSIDERING THE SUBMISSION OBSERVED THAT THE ASSESSEE HAS FAILED TO PROVE THE IDENTITY, FULL ADDRESS AND CRED ITWORTHINESS TO ESTABLISH THE GENUINENESS OF THE CREDITORS. NO DETAIL EXPLANATIO N HAS BEEN PROVIDED BY THE ASSESSEE. THE A.O. HELD THAT THE ASSESSEE HAS CONC EALED AND FURNISHED INACCURATE PARTICULARS OF HER CORRECT INCOME AND UN DER REPORTED INCOME OF RS. 92,59,530/- , WHICH IS HER OWN MONEY ROUTED THROUGH THE LOAN CREDITORS. THE A.O. ACCORDINGLY COMPUTED THE MINIMUM LEVIABLE PENA LTY AT RS. 31,16,758/- BEING 100% OF THE TAX SOUGHT TO BE EVADED VIDE ORDE R DATED 23.3.2010 WHICH WAS CONFIRMED/SUSTAINED BY THE LEARNED CIT(A) VIDE ORDER DATED 19-02-2013. 4. AGGRIEVED BY THE ORDERS DATED 19-02-2013 OF THE LEARNED CIT(A), THE ASSESSEE IS IN SECOND APPEAL BEFORE THE TRIBUNAL. ITA 3780/MUM/2013 6 5. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THE QUANTUM ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT, THE ASSESSEE PREFERRED APPEAL BEFORE THE TRIBUNAL IN ITA NO. 1081/MUM/2009 WHEREB Y THE TRIBUNAL HAS SET ASIDE THE MATTER TO THE FILE OF THE A.O. WITH RESPE CT TO THE QUANTUM ADDITIONS WITH A DIRECTION TO VERIFY THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE AND CARRY OUT ENQUIRIES AS HE DEEMS FIT AND DECIDE THE CASE AS PER LAW WITH REGARD TO THE ADDITION OF RS. 92,59,530/- VIDE ORDER DATED 30-04-2014.THE SAID ORDER IS FURNISHED BY THE ASSESSEE WHICH IS PLACED IN THE FILE. 6. THE LD. D.R., ON THE OTHER HAND, SUBMITTED THAT THE QUANTUM ADDITION HAVE BEEN MADE AND ON APPEAL BY THE ASSESSEE THE TR IBUNAL HAS SET ASIDE THE MATTER TO THE FILE OF THE A.O. FOR DE NOVO DETERMIN ATION. AS SUCH, THIS ISSUE MAY ALSO BE SET ASIDE TO THE FILE OF A.O. FOR DE NO VO DETERMINATION OF THE ISSUE AFTER FINALIZATION OF THE ASSESSMENT ORDER IN THE Q UANTUM PROCEEDINGS. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSION AND ALSO PERUSED THE MATERIAL ON RECORD. WE HAVE OBSERVED THAT THE ADDITION OF R S. 92,59,530/- WAS MADE BY THE REVENUE U/S 68 OF THE ACT VIDE ASSESSMENT OR DERS DATED 26.2.2007 PASSED BY THE AO U/S 143(3) OF THE ACT WITH RESPEC T TO THE CASH LOAN OF RS. 92,59,530/- RECEIVED BY THE ASSESSES FROM 47 PARTIE S WHICH ADDITION WAS CONFIRMED BY THE LD. CIT(A) BUT ON APPEAL BEFORE T HE TRIBUNAL WITH RESPECT TO QUANTUM ADDITIONS, THE TRIBUNAL HAS SET ASIDE THE M ATTER TO THE FILE OF THE A.O. FOR DENOVO DETERMINATION OF THE ISSUE ON MERIT S AFTER CONSIDERING THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE IN ITA N O. 1081/MUM/2009 VIDE ORDERS DATED 30.04.2014. THE RELEVANT EXTRACT OF TH E SAID ORDER OF THE TRIBUNAL IN ITA NO. 1081/MUM/2009 VIDE ORDERS DATED 30.04.2014 IS REPRODUCED HEREUNDER: 11. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENT IONS AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ASSESSEE HAS RECEIVED LOANS FROM ITA 3780/MUM/2013 7 47 PERSONS IN CASH DURING THE RELEVANT FINANCIAL YE AR, THE DETAILS OF WHICH HAVE BEEN INCORPORATED IN PARA3.1 OF THE APP ELLATE ORDER. THESE CASH LOANS AGGREGATED TO RS.92,59,530. HOWEVER, THE RE WERE OTHER LOANS ALSO, WHICH HAS BEEN ACCEPTED BY THE ASSESSING OFFI CER. BEFORE THE ASSESSING OFFICER, THE ASSESSEE WITH REGARD TO THES E LOANS TAKEN FROM 47 PERSONS, COULD NEITHER FURNISH ANY CONFIRMATION LET TER NOR ANY DOCUMENTS RELATING TO THE CREDITWORTHINESS OF SUCH PERSONS, I N MOST OF THE CASES. IT WAS ONLY EXPLAINED THAT THESE LOANS HAVE BEEN TAKEN FROM FAMILY MEMBERS, RELATIVES AND FRIENDS, WHO ARE MOSTLY AGRI CULTURIST BELONGING TO HER NATIVE PLACE JALORE, RAJASTHAN. SINCE THESE PEO PLE ARE FROM VILLAGE, THEREFORE, THE SAME COULD NOT COME TO MUMBAI TO GIV E THE ENTIRE DETAILS. THE ASSESSING OFFICER HAD ADDED THE SAID LOANS UNDE R SECTION 68, ON THE GROUND THAT NEITHER THE IDENTITY NOR THE CREDITWORT HINESS COULD BE ESTABLISHED. BEFORE THE LEARNED COMMISSIONER (APPEA LS), WITHOUT GOING ON TO THE MERIT, THE THEN AUTHORISED REPRESENTATIVE, M R. SURENDRA R. DESAI, SUBMITTED A LETTER DATED 8TH JULY 2008, STATING THA T THE ASSESSEE WAS UNABLE TO PRODUCE ALL THE CREDITORS BECAUSE MOST OF THEM ARE ILLITERATE AND ARE OF OLD AGE AND, THEREFORE, CANNOT COME TO MUMBA I, TO PRODUCE DETAILS AND CONFIRM THE SAID LOANS. THEREFORE, IN ORDER TO BUY PEACE, THE SAID LOAN AMOUNT WAS OFFERED TO BE ADDED TO THE TOTAL IN COME OF THE ASSESSEE. THE SECOND PART OF THE OFFER WAS THAT NO PENALTY PR OCEEDING SHOULD BE INITIATED. BASED ON THIS LETTER, THE LEARNED COMMIS SIONER (APPEALS) HAS CONFIRMED THE SAID ADDITIONS. APART FROM THIS, HE A LSO HELD THAT THE FINDING OF THE ASSESSING OFFICER IN THIS REGARD IS UPHELD. NOW AT THIS STAGE THE CONTENTS OF THE SAID LETTER HAS BEEN STAT ED TO BE WITHOUT ANY INTIMATION OR KNOWLEDGE OF THE ASSESSEE AND, THEREF ORE, SUCH AN OFFER MADE BY THE THEN AUTHORISED REPRESENTATIVE HAS BEEN DENIED BY THE ASSESSEE BEFORE US. IN SUPPORT OF THIS DENIAL, AN A FFIDAVIT OF THE ASSESSEE HAS ALSO BEEN FILED BEFORE US. UNDER THESE CIRCUMST ANCES, IT IS VERY DIFFICULT, EITHER TO ACCEPT THE CONTENTS OF THE SAI D OFFER LETTER FILED BEFORE ITA 3780/MUM/2013 8 THE LEARNED COMMISSIONER (APPEALS), WHICH HAS BEEN SIGNED BY THE THEN AUTHORISED REPRESENTATIVE OR TO ACCEPT THE ASSESSE ES AFFIDAVIT DENYING SUCH LETTER, AS IT IS MERE SELF SERVING STATEMENT. THE ACT DONE BY AN AUTHORIZED REPRESENTATIVE UNDER A POWER OF ATTORNEY GIVEN BY THE ASSESSEE IS BINDING, UNLESS THE AUTHORIZED PERSON H IMSELF ACCEPTS HIS MISTAKE ON HIS OWN ACCOUNT WHILE ACTING ON BEHALF O F THE ASSESSEE. NOW, WHETHER THE OFFER LETTER, AS FILED BEFORE THE LEARN ED COMMISSIONER (APPEALS), CAN BE SAID TO BE CONCLUSIVE AGAINST THE ASSESSEE QUA THESE ADDITIONS. ON A PERUSAL OF THE LETTER, IT CAN BE SE EN THAT TWO OFFERS WERE MADE; FIRST, IN ORDER TO BUY PEACE, THE LOANS HAVE BEEN ACCEPTED TO BE ADDED AS INCOME; AND SECOND SUCH AN OFFER IS BEING MADE WITH A CONDITION THAT NO PENALTY PROCEEDINGS SHOULD BE INI TIATED. THE LEARNED COMMISSIONER (APPEALS), ON SUCH CONDITIONS, OUGHT T O HAVE REJECTED THE ENTIRE OFFER BECAUSE ADDITION OR PENALTY THEREOF CA N BE CONFIRMED OR LEVIED ONLY IN ACCORDANCE WITH THE PROVISIONS OF LAW AND M ATERIAL ON RECORD. IF SUCH AN OFFER IS TO BE ACCEPTED, THEN IT HAS TO BE IN FULL NOT IN PART. IN ANY CASE, THE LEARNED COMMISSIONER (APPEALS) HAS ALSO A FFIRMED THE ORDER OF THE ASSESSING OFFICER ON MERITS ALSO. HENCE, THE AL LEGED OFFER LETTER FILED BY THE THEN AUTHORIZED REPRESENTATIVE SHOULD BE IGN ORED AND THE MERITS OF THE ADDITION SHOULD BE EXAMINED. 12. NOW, FOR ADJUDICATION ON MERITS, BEFORE US, A H UGE COMPILATION OF ADDITIONAL EVIDENCES WITH REGARD TO EACH AND EVERY CREDITORS HAVE BEEN FILED, WHEREIN DOCUMENTS RELATING TO PROOF OF THE I DENTITY OF THE PERSONS, CONFIRMATION OF THE ACCOUNT, LAND REVENUE RECORDS A ND FAMILY TREE TO PROVE THE CREDITWORTHINESS HAVE BEEN FILED. THESE V ERY DOCUMENTS HAVE ALSO BEEN STATED TO HAVE BEEN FILED BEFORE THE DEPA RTMENT DURING THE COURSE OF ASSESSMENT PROCEEDINGS UNDER SECTION 153C . ON A PERUSAL OF THESE DOCUMENTS, IT IS SEEN THAT THEY ARE QUITE REL EVANT FOR THE ADJUDICATION OF THE CASH CREDIT AND, HENCE, ARE ADM ITTED, FIRSTLY, THESE ITA 3780/MUM/2013 9 ADDITIONAL EVIDENCES HAVE ALREADY BEEN FILED BEFORE THE DEPARTMENT IN THE PROCEEDINGS UNDER SECTION 153C; AND SECONDLY, T HESE ADDITIONAL EVIDENCES GO TO THE VERY ROOT OF THE ADDITION MADE, WHICH NEEDS TO BE CONSIDERED FOR ADJUDICATION OF THIS ISSUE. THEREFOR E, IN THE INTEREST OF SUBSTANTIAL JUSTICE, WE FEEL THAT THESE DOCUMENTS S HOULD BE CONSIDERED FOR DECIDING THE ISSUE AFRESH ON MERITS. SINCE THES E DOCUMENTS HAVE NOT BEEN EXAMINED BY ANY OF THE DEPARTMENTAL AUTHORITIE S, THEREFORE, IN THE INTEREST OF JUSTICE, WE ARE OF THE CONSIDERED OPINI ON THAT THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFIC ER FOR FRESH ADJUDICATION. CONSEQUENTLY, WE SET ASIDE THE IMPUGNED ORDER PASSE D BY THE LEARNED COMMISSIONER (APPEALS) AND RESTORE THE ENTIRE ISSUE OF ADDITION MADE UNDER SECTION 68, BACK TO THE FILE OF THE ASSESSING OFFICER, TO VERIFY THESE ADDITIONAL EVIDENCES AND CARRY OUT ANY ENQUIRIES AS HE MAY DEEM FIT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N ACCORDANCE WITH LAW ONLY AFTER PROVIDING DUE AND EFFECTIVE OPPORTUN ITY OF HEARING TO THE ASSESSEE TO PRESENT HER CASE. THUS, THE GROUND RAIS ED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 13. IN THE RESULT, ASSESSEES APPEAL IN ITA NO.1081 /MUM./2009 IS ALLOWED FOR STATISTICAL PURPOSES. UNDER THE ABOVE CIRCUMSTANCES, IN THE INTEREST OF JUSTICE, THE PENALTY LEVIED BY THE A.O. U/S 271(1)(C) OF THE ACT AMOUNTING TO R S. 31,16,758/- VIDE ORDER DATED 23.3.2010 AS CONFIRMED BY THE LEARNED CIT(A) IS SET ASIDE AND THE MATTER/ISSUE IS RESTORED TO THE FILE OF THE A.O. FO R DE NOVO DETERMINATION OF THE ISSUE OF LEVIABILITY OF THE PENALTY ON MERITS, AFT ER FRAMING OF ASSESSMENT ORDERS IN SET ASIDE QUANTUM PROCEEDINGS VIDE DIRECT IONS OF THE TRIBUNAL IN ITS ORDERS DATED 30.04.2014 IN ITA NO. 1081/MUM/2009. N EEDLESS TO SAY THAT PROPER AND ADEQUATE OPPORTUNITY OF HEARING WILL BE GIVEN BY THE AO TO THE ASSESSEE IN ACCORDANCE WITH THE PRINCIPLES OF NATUR AL JUSTICE IN ACCORDANCE ITA 3780/MUM/2013 10 WITH LAW AND THE ASSESSEE WILL BE ALLOWED TO PRODUC E EVIDENCES/EXPLANATIONS IN HER DEFENSE. WE ORDER ACCORDINGLY. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA N0. 3780/MUM/2013 FOR THE ASSESSMENT YEAR 2005-06 IS AL LOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH MAY , 2016. # $% &' 13-5-2016 ( ) SD/- SD/- (SAKTIJIT DEY) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 13-05-2016 [ .9../ R.K. R.K. R.K. R.K. , EX. SR. PS !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. : ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. : / CIT- CONCERNED, MUMBAI 5. =>( 99?@ , ?@ , $ / DR, ITAT, MUMBAI E BENCH 6. (BC D / GUARD FILE. / BY ORDER, = 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI