The ITO, Ward-6(3), Surat V. Shri Maheshkumar K.Agarwal, Surat

ITA 38/AHD/2005

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9067 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2009
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 31-07-2009
• Assessment Year: 2001-2002
• Appeal Filed On: 05-01-2005
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: P ORAM
• Keywords: Bogus purchase; Unexplained cash credit; Unexplained expenditure; Gift; Business income; Opportunity of being heard; Additional evidence; Set aside
• Section: 69C; 133(6); 131; 68; 69; 145

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D BEFORE SHRI T.K. SHARMA, JUDICIAL MEMBER & SHRI D.C.AGRAWAL, ACCOUNTANT MEMBER ITA NO.38/AHD/2005 ASSESSMENT YEAR :2001-02 ITO, WARD 6(3), VS SHRI MAHESH KUMAR K. AGARWAL, SURAT SURAT PAN NO./GIR NO. ABAPA7002P & ITA NO.3378/AHD/2004 ASSESSMENT YEAR :2001-02 SHRI MAHESH KUMAR K. AGARWAL, VS ITO, WARD 6(3), SURAT SURAT PAN NO./GIR NO. ABAPA7002P (APPELLANT) (RESPONDENT) APPELLANT BY : SH HARDIK VORA, AR RESPONDENT BY : SH P. ORAM, DR ORDER PER T.K.SHARMA, J.M. THESE CROSS APPEALS ARE AGAINST THE ORDER DATED 19. 10.2004 OF CIT(A), SURAT FOR THE ASSESSMENT YEAR 2001-02. BOTH THESE APPEALS WERE HEARD TOGETHER AND ARGUED BY COMMON REPRESENTATIVES, THER EFORE, THESE ARE BEING DECIDED BY THIS COMMON ORDER FOR THE SAKE OF CONVEN IENCE. 2. THE GROUNDS RAISED BY THE REVENUE IN ITS APPEAL ARE AS UNDER:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED CIT(A)-IV, SURAT HAS ERRED IN DELETING THE ADDITION OF RS. 2 LACS MADE ON ACCOUNT OF BOGUS GIF TS. 2 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED CIT(A)-IV, SURAT HAS ERRED IN DELETING AN ADDITION OF RS.3,29,775/- MADE ON ACCOUNT OF UNEXPL AINED CASH CREDITS. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED CIT(A)-IV, SURAT HAS ERRED IN DELETING AN ADDITION OF RS.59,288/- MADE ON ACCOUNT OF INTEREST ON UNEXPLAINED CASH CREDITS. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED CIT(A)-IV, SURAT HAS ERRED IN RESTRICTI NG THE ADDITION OF RS. 3,41,967/- TO RS. 1,96,186/- MADE O N ACCOUNT OF UNEXPLAINED EXPENDITURE U/S 69C OF THE I .T. ACT. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED CIT(A)-IV, SURAT HAS ERRED IN ENTERTAIN ING THE FRESH EVIDENCE/MATERIAL AT THE APPELLATE STAGE. 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED CIT(A)-IV, SURAT HAS ERRED IN NOT CONSI DERED THE ASSESSING OFFICERS REMARKS IN THE REMAND REPOR T THAT THE CREDITWORTHINESS OF THE DONORS HAS NOT PROVED. 3. THE VARIOUS GROUNDS RAISED BY THE ASSESSEE ARE A S UNDER:- 1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED CIT(A) HAS ERRED IN PARTLY CONFIRMING THE ACTION OF THE ASSESSING OFFICER BY SUSTAINING ADDITION OF RS. 1,96,186/- FOR ALLEGED B OGUS PURCHASES FROM M/S KAILSAH SYNTHETICS OUT OF TOTAL SAID ADDITION OF RS.3,41,967/-. 2. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN M AKING AN ADDITION OF RS. 70,859/- FOR ALLEGED BOGUS BROKE RAGE. 3. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN M AKING AN ADDITION OF RS. 2,01,707/- FOR ALLEGED FALL IN G ROSS PROFIT RATIO. 4. EVEN OTHERWISE, ADDITION OF RS. 1,96,186/- FOR A LLEGED BOGUS PURCHASES SHOULD BE TELESCOPED WITH THE G.P. ADDITION OF RS. 2,01,707/-. 3 4. THE BRIEF FACTS RELATING TO CONTROVERSY INVOLVED IN GROUND NO.1 OF THE APPEAL OF REVENUE ARE THAT THE ASSESSEE HAS RECEIVE D GIFTS OF RS. 1 LAKH AND HIS SON ALSO RECEIVED GIFT OF RS. 1 LAKH FROM FOUR PARTIES. EACH OF FOUR PARTIES GAVE GIFTS OF RS. 50,000/-. NAMES OF THE DONEES AR E MENTIONED BY THE ASSESSING OFFICER IN PARA 4.1 OF THE ASSESSMENT ORD ER. THE DONEES MADE GIFTS TO THE ASSESSEE THROUGH DEMAND DRAFT ISSUED F ROM BANK AT CALCUTTA. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ASSE SSEE FILED DETAILS OF BANK DRAFTS, AFFIDAVITS OF DONEES, ACKNOWLEDGMENT OF THE IR RETURN OF INCOME AND FINANCIAL STATEMENTS ATTACHED WITH THE RETURN OF IN COME. THE ASSESSING OFFICER MADE SOME ENQUIRIES FROM BANK. ON THE BASIS OF INQ UIRIES, ASSESSING OFFICER VIDE LETTER DATED 6.2.2004 ASSESSED THE ASSESSEE TO SHOW CAUSE WHY GIFT OF RS.2 LAKHS SHOULD NOT BE ADDED TO THE INCOME OF THE ASSESSEE. THE ASSESSEE FILED DETAILED REPLY WHICH IS REPRODUCED BY ASSESSI NG OFFICER AT PAGE 3 AND TOP OF PAGE 4 OF THE ASSESSMENT ORDER. THE ASSESSI NG OFFICER DID NOT ACCEPT THE EXPLANATION OF THE ASSESSEE AND ADDED GIFT OF R S. 2 LAKHS U/S 68 OF THE INCOME TAX ACT, 1961. 5. ON APPEAL BEFORE LEARNED CIT(A), THE ASSESSEE PR ODUCED ADDITIONAL EVIDENCE, THE LEARNED CIT(A) CALLED FOR REMAND REPO RT. AFTER EXAMINING THE ADDITIONAL EVIDENCE AND REMAND REPORT OF ASSESSING OFFICER, THE LEARNED CIT(A) IN RESPECT OF EACH GIFT DELETED THE ADDITION BY OBSERVING AS UNDER:- (I) GIFT FROM VIVEKKUMAR BARGIA RS.50,000 /- THE ASSESSING OFFICER REPORTS THAT THE ICICI BANK H AS CONFIRMED THAT A DD WAS ISSUED FOR THIS AMOUNT FROM THIS PERS ONS ACCOUNT WHICH HAS BEEN SUBSEQUENTLY CREDITED TO THE APPELLA NTS ACCOUNT. THE APPELLANT STATES THAT CONFIRMATION WAS FILED AND THIS PERSON WAS ASSESSED TO TAX. COPY OF RETURN OF INCOME IS ALSO FILED. THE ASSESSING OFFICER STATES THAT THIS PERSON HAD 4 SHOWN ONLY RS. 42,559/- IN HIS RETURN OF INCOME AND ON 17.3.2001 CASH OF RS. 50,000/- WAS DEPOSITED IN THE BANK. (II) GIFT FROM KAMLESHKUMAR NAWALGARIA RS. 50,000 /- THE ASSESSING OFFICER STATES THAT EARLIER IT WRITTE N SUBMISSIONS STATED THAT A DEMAND DRAFT WAS RECEIVED FROM CENTRA L BANK OF INDIA, KOLKATA BUT THE SAID BANK DENIED THE SAME. H OWEVER, A CERTIFICATE IS LATER PRODUCED FROM THE BANK FROM AN OTHER BRANCH STATING THAT THIS AMOUNT WAS INDEED PAID. THIS PERS ON HAS FILED A RETURN OF INCOME, CONFIRMATION AND ALSO SUBMITTED C ASH ACCOUNT. THE ASSESSING OFFICER STATES THAT THE RETURN OF INC OME IS ONLY RS. 48,000/- (III) GIFT FROM DILIPKUMAR AGARWAL RS. 50,000/- IN THIS CASE ALSO, THE BANK HAS NOW CONFIRMED THAT THIS AMOUNT WAS INDEED PAID FROM THIS PERSONS ACCOUNT BUT HERE TOO THE RETURN OF INCOME WAS SEEM TO BE ONLY RS. 50,397/-. (IV) GIFT FROM PRAHLAD KUMAR AGARWAL RS. 50,000/- THE ASSESSING OFFICER STATES THAT THE BANK HAS CONF IRMED THE PURCHASE OF THE DEMAND DRAFT, CONFIRMATION IS FILED BUT RETURN OF INCOME I FILED FOR A MEAGER AMOUNT OF 49,050/- IN ALL THE ABOVE FOUR CASES, THE ASSESSING OFFICER STATES THAT MERE IDENTIFICATION OF THE DONOR AND MOVEMENT OF TH E GIFT THROUGH BANKING CHANNEL IS NOT SUFFICIENT TO PROVE THE GENUINENESS OF THE CASE AND CAPACITY TO GIFT IS NOT PROVED IN ANY OF THE ABOVE FOUR CASES AND RELIES ON THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF SAJJANDAS JAIN VS CIT [24 SITC 21] 6. AGGRIEVED BY THE ORDER OF LEARNED CIT(A), THE RE VENUE IS IN APPEAL BEFORE US. 5 7. AT THE TIME OF HEARING ON BEHALF OF THE REVENUE SHRI P. ORAM APPEARED AND CONTENDED THAT WHILE DELETING THE ADDITION OF R S. 2 LAKHS, LEARNED CIT(A) HAS NOT CONSIDERED THE ASSESSING OFFICER REMARKS IN THE REMAND REPORT THAT CREDITWORTHINESS OF DONORS IS NOT PROVED. THE LE ARNED DR POINTED OUT THAT LOOKING TO THE FINANCIAL STATUS OF THE DONORS, THE ASSESSEE FAILED TO PROVE THE CAPACITY OF DONORS TO GIVE GIFT OF RS. 50,000/- EAC H TO THE ASSESSEE, THEREFORE, ADDITION OF RS. 2 LAKHS MADE IS RESTORED. ON THE O THER HAND, SHRI HARDIK VORA LEARNED COUNSEL, APPEARED ON BEHALF OF THE ASS ESSEE , SUBMITTED THAT THE COMPLETE FINANCIAL DETAILS WERE FILED. THE GIFT AMOUNT IS DULY REFLECTED IN THE RETURN OF INCOME AND NO DISCREPANCY WHATSOEVER IS POINTED OUT BY THE ASSESSING OFFICER AGAINST THOSE DONORS. IN THESE CI RCUMSTANCES, IT CANNOT BE SAID THAT THE CREDITWORTHINESS OF DONORS HAS NOT BE EN PROVED. 8. AFTER HEARING BOTH THE SIDES, WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IT IS PERTINENT TO NOTE T HAT ALL THE FOUR DONORS ARE NOT RELATIVES OF THE ASSESSEE. EVEN THOUGH THE ASSESSEE HAS FURNISHED THE AFFIDAVITS OF DONORS, ACKNOWLEDGMENTS OF THEIR RETU RN OF INCOME AND FINANCIAL STATEMENT ATTACHED WITH THEIR RETURNS OF INCOME AND THE AMOUNTS GIFTED ARE DULY REFLECTED THEREIN BUT THE CREDIT WORTHINESS OF THE DONORS AND GENUINENESS OF THE GIFTS STILL REMAINED UNPROVED. IN THESE CIRC UMSTANCES, IT CANNOT BE SAID THAT ASSESSEE HAS DISCHARGED COMPLETE ONUS CAST UPO N HIM U/S 68 OF INCOME TAX ACT, 1961. IN THESE CIRCUMSTANCES, WE RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION THAT ASSES SEE WILL PRODUCE THE DONORS FOR ENABLING THE ASSESSING OFFICER TO EXAMINE THEIR CREDITWORTHINESS AND GENUINENESS THE GIFTS. THIS GROUND IS THEREFORE, A LLOWED BUT FOR STATISTICAL PURPOSES. 6 9. THE CONTROVERSY INVOLVED IN GROUND NOS 2 & 3, OF REVENUE APPEALS ARE THAT LEARNED CIT(A) ERRED IN DELETING THE ADDITION OF RS.3,29,775/- MADE ON ACCOUNT OF UNEXPLAINED CASH CREDITS AND ERRED IN DE LETING AN ADDITION OF RS. 59,288/- MADE ON ACCOUNT OF INTEREST THEREON. THE RELEVANT FACTS ARE THAT ON VERIFICATION OF THE BALANCE SHEET OF THE ASSESSEE, ASSESSING OFFICER NOTICED THAT ASSESSEE HAS RECEIVED LOAN FROM PARTIES WHICH ARE MENTIONED IN PARA 5.1 OF PAGE 8 OF THE ASSESSMENT ORDER. THE ASSESSING OF FICER FURTHER OBSERVED THAT THERE WERE CASH DEPOSIT OF RS. 1,29,375/- IN T HE BANK ACCOUNT OF FOUR CREDITORS PRIOR TO THE ISSUE OF CHEQUE TO THE ASSES SEE. WITH REGARD TO LOAN OF RS. 1 LAKH FROM SHRI SHYAMSUNDEAR RIBIYAWAL, IT WAS CLAIMED THAT SAID LOAN WAS RECEIVED BY WAY OF DEMAND DRAFT BEARING NO.1279 82 DATED 4.10.2000 ISSUED FROM CANARA BANK, BRABOURNE ROAD, KOLKATA. W ITH REGARD TO THIS, ASSESSING OFFICER MADE NECESSARY INQUIRIES WITH CA NARA BANK, BRABOURNE ROAD, KOLTAKA U/S 133(6) OF THE I.T. ACT. IN RESPO NSE TO INQUIRIES, THE MANAGER, CANARA BANK, BRABOURNE ROAD, KOLKATA VIDE LETTER DATED 8.3.2004 INFORMED AS UNDER:- ON VERIFYING OUR RECORDS, WE FIND THAT WE HAVE NOT ISSUED D.D. BEARING NO. 127982 DATED 14.10.2000 FROM OUR BRANCH. WITH REGARD TO THE AFORESAID LOAN, THE ASSESSING OF FICER OBSERVED THAT SHRI SHYAMSUNDER RIBIYAWAL FOR THE ASSESSMENT YEAR 2001- 02 SHOWN INCOME OF RS. 87,184/-. THIS WOULD MEAN THAT THIS WAS A CAPI TAL BUILD UP AND SAID CREDITOR WAS MAN OF MEAGER MEANS. SIMILARLY, WITH REGARD TO SHRI PRADEEP KUMAR MARODIA AND SMT PUSHPA AGARWAL, THE ASSESSEE CLAIMED THAT LOAN OF RS.50,000/- FROM EACH OF THE CREDITOR WERE RECEIVED BY WAY OF DEMAND DRAFT BEARING NO. 785784 DATED 17.7.2000 ISSUED BY PUNJAB NATIONAL BANK, C.R. 7 AVENUE, KOLKATA AND D.D. BEARING NO. 757801 DATED 1 8.7.2000 WERE FROM PUNJAB NATIONAL BANK, C.R. AVENUE, KOLKATA RESPECTI VELY. IN THE CASE OF SMT PUSHPA AGARWAL FOR THE ASSESSMENT YEAR 1001-02, INC OME OF RS. 68,183/- WAS DECLARED BY WAY OF KNITTING AND STITCHING. AFT ER MEETING HOUSEHOLD EXPENSES FOR THE ENTIRE YEAR, SHE WOULD HAVE FOUND IT EXTREMELY DIFFICULT TO ADVANCE LOAN TO ANYBODY. THIS WOULD MEAN THAT THIS WAS A CASE OF CAPITAL BUILD UP AND THE SAID CREDITOR WRITTEN SUBMISSIONS WOMEN OF MEAGER MEANS. SIMILARLY IN THE CASE OF SHRI PRADEEPKUMAR MARODIA FOR THE ASSESSMENT YEAR 2001-02, BUSINESS INCOME OF RS. 34,587/- AND INCOM E FROM OTHER SOURCES OF RS. 40,022/- WAS SHOWN IN THE RETURN OF INCOME. FO R THESE CREDITS ALSO, ASSESSING OFFICER OBSERVED THAT IT IS HARD TO BELIE F THAT AFTER MEETING HIS HOUSEHOLD EXPENSES FOR THE ENTIRE YEAR, THE SAID CR EDITOR HAVE SAVED MONEY FROM HIS ANNUAL INCOME OF RS. 75,000/-. THIS WOULD MEAN THAT THIS WAS A CAPITAL BUILD UP AND SAID CREDITOR WAS MAN OF MEAGE R MEANS. 10. THE ASSESSING OFFICER ACCORDINGLY AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE HELD THAT MERE FILING OF INCO ME TAX FILE NUMBERS (PAN NO.) OF THE CREDITORS IS NOT ENOUGH TO PROVE THE GE NUINENESS OF CASH CREDIT. FURTHER BARE FURNISHING OF THE PARTICULARS IS NOT E NOUGH AND SIMILARLY PAYMENT BY ACCOUNT PAYEE CHEQUE IS ALSO NOT WAS NOT SACROSA NCT NOR CAN IT MAKE A NON GENUINE TRANSACTION GENUINE. HE ACCORDINGLY MA DE AN ADDITION OF RS.3,29,375/- U/S 68 AND DISALLOWED THE INTEREST TH EREON AMOUNTING TO RS.59,288/- @ 18%. 11. ON APPEAL, IN THE IMPUGNED ORDER, LEARNED CIT( A) DELETED THE SAME BY DISCUSSING ONLY THE ADDITION OF RS. 70,000/- AND RS . 50,000/-. IN IMPUGNED ORDER, LEARNED CIT(A) ALSO OBSERVED THAT ASSESSING OFFICER IN THE IMPUGNED 8 ORDER ALSO STATED THAT AT THE TIME OF HEARING, SHRI D.KHANDELWAL, ASSESSING OFFICER WAS PRESENT WHO STATED THAT THE EXPENSES OF THE ASSESSEE ARE ACCEPTABLE. AT THE TIME OF HEARING, LEARNED DR PO INTED OUT THAT THE ASSESSING OFFICER NEVER ACCEPTED THE CASH CREDITS W HICH ARE GENUINE. APART FORM THIS, LEARNED CIT(A) HAS NOT PASSED A SPEAKING ORDER AND DELETED THE ADDITION OF RS. 3,29,375/- U/S 68 AND INTEREST THER EON AMOUNTING TO RS.59,288./-. ON THE OTHER HAND, THE LEARNED COUNS EL OF THE ASSESSEE SHRI HARDIK VORA SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 12. AFTER HEARING BOTH THE SIDES, WE HAVE CAREFULL Y GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT LEARNED CIT(A) DELETED THE ADDITION OF RS. 3,29,775/- IN RESPECT O F UNEXPLAINED CASH CREDITS AND INTEREST THEREON AMOUNTING TO RS. 59,288/- WITH OUT GIVING ANY DETAILED REASONS FOR THE SAME. IN THESE CIRCUMSTANCES, IN OU R OPINION, IT WILL MEET THE ENDS OF JUSTICE IF THE MATTER IS RESTORED TO THE FI LE OF THE ASSESSING OFFICER WHO WILL RECOMPUTE THE ENTIRE THINGS WHICH WERE FURNISH ED BEFORE THE LEARNED CIT(A) AND RECONSIDER THE ADDITION OF RS. 3,29,775/ - AND INTEREST THEREON OF RS. 59,288/- AFRESH IN ACCORDANCE WITH LAW AFTER GI VING THE OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES. 13. THE FACTS RELATING TO CONTROVERSY INVOLVED IN O THER GROUNDS OF REVENUES APPEAL AND GROUNDS RAISED IN ASSESSEES A PPEAL IS THAT THE ASSESSING OFFICER CONDUCTED INQUIRY BY ISSUING OF N OTICE U/S 133(6) AND SUMMONS U/S 131 OF THE ACT AND MADE THE ADDITION IN RESPECT OF PURCHASE OF GREY CLOTH MADE FROM PARTIES NAMELY M/S MUKESH FABR ICS & M/S RAJNI CORPORATION & KAILASH SYNTHETICS. . THE ASSESSING OFFICER FOR THE VARIOUS REASONS GIVEN IN THE ASSESSMENT ORDER HELD THAT PUR CHASES OF RS. 3,41,967/- 9 FROM AFORESAID THREE SUPPLIERS WERE NOT GENUINE. TH E LEARNED CIT(A) ALSO TOOK THE VIEW THAT BOOKS OF ACCOUNT OF THE ASSESSEE CANN OT BE ACCEPTED AS HE INVOKED THE PROVISIONS CONTAINED IN SECTION 145 OF THE INCOME TAX ACT, 1961 AND TREATED THE ENTIRE UNEXPLAINED EXPENDITURE U/S 69C OF INCOME TAX ACT, ON APPEAL, IN THE IMPUGNED ORDER LEARNED CIT(A) RE STRICTED THE ADDITION TO RS. ,96,186/-. AGGRIEVED BY THE ORDER OF LEARNED C IT(A), BOTH THE SIDES ARE IN APPEAL BEFORE US. 14. AT THE TIME OF HEARING ON BEHALF OF THE ASSESSE E SHRI HARDIK VORA CONTENDED THAT ADDITION TO THE EXTENT OF RS. 1,45,7 81/- IS RIGHTLY DELETED BY LEARNED CIT(A). WITH REGARDS TO REMAINING ADDITION OF RS. 1,96,186/-, COUNSEL OF THE ASSESSEE SUBMITTED THAT ASSESSING OFFICER HA S MADE THE ADDITION OF RS. 2,01,701/- FOR ALLEGED FALL IN GP RATE. HE SUB MITTED THAT ADDITION OF GP RATE HAS BEEN MADE ON DOUBT AND SUSPICION, THEREFOR E, THE SAME BE DELETED. WITHOUT PREJUDICE TO THIS, HE SUBMITTED THAT IN CAS E THE SAID GP ADDITION TO THE EXTENT OF RS. 1,96,186/- IS CONFIRMED IN THAT EVENT THE ASSESSING OFFICER BE DIRECTED TO ALLOW THE BENEFIT OF TELESCOPING THAT G P ADDITION OF RS. 2,01,701/-. ON THE OTHER HAND, LEARNED DR APPEARED FOR THE REV ENUE CONTENDED THAT ADDITION TO THE EXTENT OF RS. 1,96,186/- IS RIGHTLY CONFIRMED BY LEARNED CIT(A). WITH RESPECT TO RELIEF OF RS. 1,45,781/-, HE SUBMIT TED THAT LEARNED CIT(A) ADMITTED THE ADDITIONAL EVIDENCE / MATERIAL AT THE APPELLATE STAGE, THEREFORE, MATTER BE RESTORED TO THE FILE OF THE ASSESSING OFF ICER. 15. HAVING HEARD BOTH SIDES, WE HAVE CAREFULLY GONE THROUGH THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW. IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS GIVEN DETAILED REASONS FOR MAKING THE G P ADDITION OF RS. 2,01,707/-. THIS HAS BEEN CONFIRMED BY LEARNED CIT (A) IN THE IMPUGNED 10 ORDER. IN OUR OPINION, THE GP ADDITION HAS RIGHTLY BEEN MADE AND LEARNED CIT(A) IS LEGALLY AND FACTUALLY CORRECT IN CONFIRMI NG THE SAME. WITH REGARD TO RESTRICTING, THE ADDITION FROM RS. 3,41,967/- TO R S. 1,96,186/- MADE BY ASSESSING OFFICER U/S 69 OF THE ACT, WE HAVE FOUND THAT IN THE IMPUGNED ORDER LEARNED CIT(A) HAS ACCEPTED THE FRESH EVIDENCE. IN VIEW OF THIS, WE SET ASIDE THE ORDER OF LEARNED CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION THAT ASSESSING OFFICER W ILL RE-ADJUDICATE THE ADDITION OF RS. 3,41,967/- MADE U/S 69C AFRESH. IF ANY ADDI TION IS RETAINED, THE ASSESSING OFFICER WILL CONSIDER THE REQUEST OF THE ASSESSEE TO ALLOW THE BENEFIT OF TELESCOPING FROM GP RATE IN ACCORDANCE W ITH LAW. 16. IN THE RESULT FOR STATISTICAL PURPOSES, BOTH TH E APPEALS ARE TREATED AS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11.9.2009. SD/- SD/- (D.C.AGRAWAL) (T.K.SHARMA) ACCOUNTNT MEMBER JUDICIAL MEMBER DATED: 11 TH SEPT 2009 RKK COPY FORWARDED TO :- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT (A). 4. THE CIT 5. DR 6. GUARD FILE BY ORDER TRUE COPY DY./ASSTT. REGISTRAR, ITAT, AHMEDABAD.