ITO, Ward - 31(1), Kolkata, Kolkata V. Shri Gautam Jain, L/H of Hemraj Begwani, Kolkata

ITA 388/KOL/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4929 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 11 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2016
• Appeal Filed By: Department
• Bench Allotted: C
• Next Hearing Date: 02-02-2016
• Assessment Year: 1987-1988
• Appeal Filed On: 12-03-2012
• Court: TRIBUNAL
• Department Lawyers: NONGOTHUNG JUNGIO; P K CHAKRABORTY JCITS
• Assessee Lawyers: S L K OCHAR ADVOC
• Keywords: Unexplained cash credit; Document seized; Documents seized
• Section: 40A(3); 143(3); 5(2); 68; 145; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA [BEFORE SHRI MAHAVIR SINGH, JM & SHRI M. BALAGANES H, AM] I.T.A NO.388/KOL/2012 ASSESSMENT YEAR: 1987-88 INCOME-TAX OFFICER, WD-31(1), KOLKATA. VS. SRI U TTAM JAIN, L/H OF HEMRAJ BEGWANI ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 08.02.2016 DATE OF PRONOUNCEMENT: 02.03.2016 FOR THE APPELLANT: S/SHRI NONGOTHUNG JUNGIO & P.K .CHAKRABORTY, JCITS FOR THE RESPONDENT: S/SHRI ANIL KOCHAR & S. L. K OCHAR, ADVOCATES ORDER PER SHRI MAHAVIR SINGH, JM: THIS APPEAL BY REVENUE IS ARISING OUT OF ORDER OF C IT(A)-XIX, KOLKATA VIDE APPEAL NO. 26/CIT(A)-XIX/ITO,WD.31(1)/KOL/11-12 DATED 01.12.20 11. ASSESSMENT WAS FRAMED BY ACIT, INV. CIR-17(1)/CAL U/S. 143(3)/251 OF THE INCOME TA X ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 1997-98 VIDE HIS ORDER DA TED 30.03.1994. 2. THE FIRST ISSUE IN THIS APPEAL OF REVENUE IS AG AINST THE ORDER OF CIT(A) DELETING THE ADDITION MADE BY AO ON ESTIMATED PROFIT ON ESTIMATE D TURNOVER OF SALE OF NEWSPAPER PRINTS. FOR THIS, REVENUE HAS RAISED FOLLOWING GROUND NO.1: 1. WHETHER ON THE FACTS & CIRCUMSTANCES OF THE CA SE LD. CIT(A)-XIX, KOLKATA WAS JUSTIFIED IN DELETING THE ADDITION OF RS.50,00,000/-, IGNORING T HE FACTS BROUGHT ON RECORD ON THE BASIS OF INVESTIGATION WHICH INDICATES THAT THE ASSESSEE HAS BEEN INDULGING IN TRADING ACTIVITIES OTHER THAN SUPPLY OF NEWSPAPER PRINT ON COMMISSION. 3. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE CARRI ES ON BUSINESS IN THE NAME OF M/S. PAPER & INDUSTRIES OF LIFTING OF NEWSPRINTS FOR NUMEROUS PA PERS HAVING ALLOTMENT OF NEWSPRINTS ON COMMISSION BASIS FROM STATE TRADING CORPORATION (ST C). THE ASSESSEE FILED HIS RETURN OF INCOME ON 13.06.1987 FOR THE RELEVANT AY 1987-88. S UBSEQUENTLY, A SEARCH ACTION U/S. 132 OF THE ACT WAS CONDUCTED ON THE BUSINESS AND RESIDENTI AL PREMISES OF THE ASSESSEE ON 05.10.1988. DURING THE COURSE OF SEARCH ON THE BUSINESS AND RES IDENTIAL PREMISES OF THE ASSESSEE BOOKS OF ACCOUNT, LEDGER ACCOUNT, CASH BOOK ETC. WERE SEIZED AND MARKED AS IDENTIFICATION NO. PTI 1 TO 263. THE AO DURING THE COURSE OF ASSESSMENT PROCEE DINGS ORIGINALLY FRAMED ASSESSMENT U/S. 143(3) OF THE ACT ON 27.03.1991 ASSESSING THE TOTAL INCOME AT RS. 62,92,890/-. SUBSEQUENTLY, 2 ITA NO.388/KOL/2012 UTTAM JAIN, AY 1987-88 THIS ASSESSMENT WAS SET ASIDE BY CIT(A) TO THE FILE OF THE AO FOR FRAMING DE NOVO ASSESSMENT VIDE HIS ORDER DATED 30.12.1991 AND THE AO FRAMED A SSESSMENT U/S. 143(3)/251 OF THE ACT VIDE ORDER DATED 30.03.1994 (THE IMPUGNED ORDER OF THE A O). THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-COMPLIANCE ON 03.05.1995 BUT T RIBUNAL SET ASIDE THE ORDER OF CIT(A) VIDE ORDER DATED 26.04.2004. FINALLY, THE CIT(A) PASSED THE IMPUGNED ORDER DATED 01.12.2011. THE AO IN HIS ASSESSMENT ORDER PASSED U/S. 143(3)/251 O F THE ACT DATED 30.03.1994 REQUIRED THE ASSESSEE TO FILE THE DETAILS IN RESPECT TO AMOUNT P AYABLE TO STC FOR THE NEWSPRINTS, INTEREST PAYABLE TO STC, DETAILS OF CUSTOM DUTY, DETAILS OF LABOUR CHARGES AND CLEARING CHARGES, DETAILS OF LOCAL TRANSPORTATION, COST OF REEL CUTTING AND DETA ILS OF BANK INTEREST INCLUDING ASSESSEES FINANCING, SERVICING AND HANDLING COMMISSION CHARGE AT 3% FROM THE NEWSPAPER COMPANIES. LD. COUNSEL FOR THE ASSESSEE BEFORE AO STATED THAT THES E DETAILS ARE IN THE SEIZED PAPERS LYING WITH THE DEPARTMENT BUT THE AO NOTED THAT THE ASSESSEE P ROCURES THE AUTHORITY FROM THE RESPECTIVE NEWSPAPERS SPREAD OVER DIFFERENT PARTS OF INDIA AND ON THE STRENGTH OF SUCH AUTHORITY THE ASSESSEE TAKES DELIVERY OF THE NEWSPRINTS ON BEHALF OF THE C ONSUMER NEWSPAPERS AFTER MAKING THE PAYMENT TO STC. ACCORDINGLY, NEWSPAPERS ARE DELIVE RED TO THE CONSUMER NEWSPAPERS AND NEWSPRINTS WERE STATED TO HAVE BEEN TAKEN DELIVERY BY THE RESPECTIVE NEWSPAPERS AT THEIR COST FROM THE ASSESSEES GODOWN AND PAYMENTS WERE MADE B Y THE PAPERS TO THE ASSESSEE. THE AO NOTED THAT THE ASSESSEE COULD NOT PRODUCE ANY EVIDE NCE OF HAVING DISPATCHED THE NEWSPRINTS TO THE NUMEROUS PAPERS WHICH RUNS MORE THAN 200 IN NUM BERS AND THERE IS NO RECORD SHOWING THE ISSUE OF DISPATCH OF NEWSPRINTS TO THE RESPECTIVE P APERS. ACCORDING TO AO, NO SUCH DOCUMENTS WERE FOUND FROM THE SEIZED DOCUMENTS. ACCORDING TO AO, THERE IS NO EVIDENCE REGARDING TRANSPORTATION OF THESE NEWSPRINTS TO THE RESPECTIV E NEWSPAPERS HAVING BEEN DISPATCHED THROUGH COURIERS. THE AO NOTICED FROM THE ACCOUNTS OF THE A SSESSEE THAT IT HAS SHOWN TOTAL TURNOVER OF RS.3,40,54,750/- AND THIS AMOUNT IS RECEIVED/RECEIV ABLE FROM ALLOTTEES ON ACCOUNT DELIVERY OF NEWSPAPERS PRINTS. THE ASSESSEE HAS CLAIMED CLOSING STOCK OF RS.51,95,508/- AND CLAIMED EXPENSES TOTALING TO RS.3,92,75,106/- AND DISCLOSED A MEAGER PROFIT OF RS.98,206/-. ACCORDING TO AO, AS THE ASSESSEE COULD NOT PRODUCE ANY DOCUME NTARY EVIDENCE IN RESPECT TO DELIVERY OF NEWSPRINTS TO THE NEWSPAPERS OWNERS THERE ARE NO EV IDENCE OF EXPENSES. HENCE, HE INVOKED THE PROVISIONS OF SECTION 145 OF THE ACT AND ESTIMATED THE TURNOVER OF THE ASSESSEE AT RS. 5 CRORE AND ACCORDINGLY, TAKING A MARGIN OF 10% OF NET PROFIT H E ESTIMATED THE INCOME OF THE ASSESSEE FROM THIS BUSINESS AT RS. 50 LACS. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE CIT(A). 3 ITA NO.388/KOL/2012 UTTAM JAIN, AY 1987-88 4. THE CIT(A) DELETED THE ADDITION FOR THE REASON T HAT THE AO HAS NOT GONE INTO THE SEIZED DOCUMENTS, WHICH WERE EVIDENCED BY THE BILLS AND VO UCHERS, BOOKS OF ACCOUNTS AND OTHER DOCUMENTS, WHICH PROVES THAT THE ASSESSEE WAS ONLY LIFTING THE NEWSPRINTS FOR ALLOTTING THE SAME TO NEWSPAPERS OWNERS AND NOT SELLING THE NEWSPRINTS IN CASH IN UNAUTHORIZED MARKET. ACCORDING TO HIM, THERE ARE AMPLE EVIDENCE IN THE SEIZED DOCU MENTS THAT NEWSPRINTS WERE LIFTED BY ASSESSEE FOR THE NEWSPAPER OWNERS ON THE BASIS OF AUTHORIZAT ION ISSUED TO PARTIES BY STC AND ACCORDINGLY, PAYMENT WAS ALSO RECEIVED FROM THEM. THE ASSESSEE PRODUCED COPIES OF LEDGER ACCOUNT OF THESE PARTIES AND THIS LEDGER ACCOUNTS W ERE SEIZED DURING THE COURSE OF SEARCH. ACCORDING TO CIT(A), THESE PARTIES WERE SUPPLIED NE WSPRINTS AND PAYMENT WAS ALSO RECEIVED BY ASSESSEE FROM THEM. THE ASSESSEE COLLECTED THE NEW SPRINTS FROM STC ONLY ON THE STRENGTH OF AUTHORIZATION BY THE CONSUMERS AND NOT OTHERWISE. THE CIT(A) ALSO EXAMINED THE PANCHNAMA PREPARED DURING THE COURSE OF SEARCH ON 05.10.1988 AND THE INVENTORY OF BOOKS OF ACCOUNTS AND DOCUMENTS SEIZED AND OBSERVED THAT LARGE NUMBER OF BOOKS AND FILES WERE SEIZED AS PER THE DESCRIPTION OF INVENTORY. BUT THE AO HAS NOT DISCU SSED ANYTHING ABOUT THESE SEIZED DOCUMENTS I.E. FILE CONTAINING DOCUMENTS RELATING TO SUPPLY O F NEWSPRINTS AND NEWSPRINTS ACCOUNT OF ALL THE NEWSPAPERS AND PERIODICALS ON BEHALF OF WHOM THE AS SESSEE HAD LIFTED THE NEWSPRINTS FROM STC. EVEN DURING REMAND REPORT, THE AO WAS SILENT AND IN BOTH THE ASSESSMENT ORDERS I.E. THE ORIGINAL ASSESSMENT ORDER DATED 27.03.1991 U/S. 143(3) AND T HE IMPUGNED ASSESSMENT ORDER THERE IS NO DISCUSSION OF ANY SEIZED DOCUMENTS WHICH SUPPORT TH E VIEW OF THE AO. EVEN THE LEDGER ACCOUNT OF THE PARTIES, THE LEDGER & BOOKS OF ACCOUNT SEIZE D, CLEARLY REVEALED THAT THE PARTIES MENTIONED IN ASSESSMENT ORDER LIKE INDIAN PUNCH, BUDDHA MARK, HAMARA NARA AND SAMARA KSHETRA WHO DENIED TO HAVE MADE ANY PAYMENT TO THE ASSESSEE RAT HER CLEARLY RECORDED IN THE SEIZED LEDGER AND IN THAT CASE THE PARTIES CANNOT DENY THE TRANSACTIO N UNLESS AND UNTIL ALL THOSE ARE EXAMINED. IN VIEW OF THESE FACTS, CIT(A) DELETED THE ESTIMATED A DDITION. AGGRIEVED, REVENUE CAME IN SECOND APPEAL BEFORE TRIBUNAL. 5. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. ON CAREFUL CONSIDERATION OF THE FACTS AND ON PERUSA L OF VARIOUS DOCUMENTS AND MATERIAL ON RECORD, I AM OF THE OPINION THAT THE AO WAS NOT JUS TIFIED IN ESTIMATING THE TURNOVER AS WELL AS THE PROFIT OF THE ASSESSEE FOR THE YEAR UNDER APPEAL. I T IS A MATTER OF FACT THAT THE ASSESEE HAD ACTED AS A NEWSPRINT HANDLING AGENT AND HE WAS ENLISTED SO B Y THE REGISTRAR OF NEWSPAPERS FOR INDIA UNDER THE MINISTRY OF INFORMATION & BROADCASTING, N EW DELHI. DURING THE RELEVANT PERIOD, 4 ITA NO.388/KOL/2012 UTTAM JAIN, AY 1987-88 NEWSPRINT WAS AN ITEM, THE DISTRIBUTION OF WHICH WA S REGULATED BY THE GOVERNMENT REGULATIONS. THE STATE TRADING CORPORATION USED TO ISSUE THE ALL OTMENT LETTERS TO VARIOUS NEWSPAPERS AND PERIODICALS TO LIFT THEIR REQUIREMENT OF NEWSPRINTS . THE ASSESSEE BEING A HANDLING AGENT, ON THE STRENGTH OF AUTHORIZATION FROM THE CONSUMER NEWSPAP ERS AND PERIODICALS, USED TO COLLECT THE NEWSPRINTS FROM STC WHICH WAS TO BE ULTIMATELY LIFT ED BY THE RESPECTIVE ALLOTTEES. THUS, THE ASSESSEE COULD COLLECT THE PAPER FROM STC ONLY ON T HE STRENGTH OF AUTHORIZATION BY THE CONSUMERS AND NOT OTHERWISE. BOTH, THE ASSESSEE AS A HANDLING AGENT AS WELL AS THE CONSUMER NEWSPAPERS AND PERIODICALS WERE REQUIRED TO GIVE AC COUNT OF NEWSPRINTS ISSUED AND CONSUMED TO THE REGISTRAR OF NEWSPAPERS FOR INDIA. IT IS OBSERV ED THAT THE AO HAS STATED THAT THERE WAS NO EVIDENCE THAT NEWSPRINT AFTER COLLECTING FROM THE S TC BY THE ASSESSEE, WAS SUPPLIED TO THE RESPECTIVE ALLOTTEES. THAT, THE ASSESSEE HAD SOLD T HE NEWSPRINTS IN UNAUTHORIZED MARKET EARNING MUCH HIGHER INCOME THAN THE INCOME DECLARED IN THE RETURN OF INCOME. WE DO NOT AGREE WITH THE VIEW OF THE AO, SPECIFICALLY, IN THE ABSENCE OF ANY EVIDENCE ON RECORD THAT THE ASSESSEE HAD SOLD THE NEWSPRINTS IN THE UNAUTHORIZED, MARKET. IF THE CONTENTION OF THE AO IS ACCEPTED, IT, WOULD MEAN THAT ON THE AUTHORIZATION OF ALLOTTEES OF NEWS PRINT, THE ASSESSEE LIFTED THE NEWSPRINT FROM STC AND SOLD IT IN UNAUTHORIZED MARKET. IF, IT IS S O, FROM WHERE THE ALLOTTEES NEWSPAPERS AND PERIODICALS WOULD HAD SHOWN THE CONSUMPTION OF NEWS PRINTS WHICH WAS ALLOTTED TO THEM BY THE STC FOR THE PURPOSE OF PRINTING THE NEWSPAPERS AND PERIODICALS? DOES IT MEAN THAT THE ALLOTTEES NEWSPAPERS AND PERIODICALS DID NOT GET SUPPLY OF NE WSPRINT FROM THE ASSESSE WHICH WAS LIFTED BY HIM ON THEIR AUTHORIZATION AND THAT THE ALLOTTEE NE WSPAPERS AND PERIODICALS DID NOT PRINT THE NEWSPAPERS AND PERIODICALS? HOWEVER, IT WAS NO SO A ND THERE IS NO EVIDENCE ON RECORD IN THIS REGARD. HENCE, IT CANNOT BE SAID THAT THE NEWSPRINT S LIFTED BY THE ASSESSEE FROM STC WAS SOLD BY HIM IN THE UNAUTHORIZED MARKET. WE FIND THAT THE AS SESSEE BEFORE AO HAD FILED CONFIRMATIONS FROM THE ALLOTTEES OF THE NEWSPRINTS AND SAME WERE NOT ACCEPTED BY THE AO AND DOUBTED THEIR AUTHENTICITY FOR THE REASON THAT THE CONFIRMATIONS WERE ISSUED IN THE YEAR 1990 CONFIRMING THE RECEIPT OF NEWSPRINTS IN THE YEAR 1985-86. WE, IN V IEW OF THIS FACT, ARE OF THE OPINION THAT IF THE AO WAS HAVING ANY RESERVATIONS ABOUT THE AUTHENTICI TY OF THE CONFIRMATIONS FILED BY THE ASSESSEE, ONUS WAS ON HIM TO EXAMINE THE CORRECTNES S OF THE CONFIRMATIONS FILED BY THE ASSESSEE AND WITHOUT DOING ANYTHING, THE CONFIRMATIONS FILED BY THE ASSESSEE COULD NOT BE REJECTED OUTRIGHTLY. DURING ASSESSMENT PROCEEDINGS, THE AO H AS NOT DOUBTED ABOUT THE GENUINENESS OF CONFIRMATIONS FILED BEFORE HIM. ON PERUSAL OF COPY OF PANCHNAMA AND THE INVENTORY OF BOOKS OF 5 ITA NO.388/KOL/2012 UTTAM JAIN, AY 1987-88 ACCOUNTS AND DOCUMENTS SEIZED IN THE COURSE OF SEAR CH ON 05/10/1988, IT IS OBSERVED THAT A LARGE NUMBER OF BOOKS AND FILES WERE SEIZED. AS PER THE D ESCRIPTION IN THE INVENTORY, THE FILES WERE CONTAINING DOCUMENTS RELATING TO SUPPLY OF NEWSPRIN TS AND NEWSPRINT ACCOUNT OF ALL THE PAPERS AND PERIODICALS ON BEHALF OF WHOM THE ASSESSEE HAD LIFTED THE NEWSPRINT FROM STC. IN THE ASSESSMENT ORDER, THE AO HAS NOT DISCUSSED ANYTHING ABOUT THESE' SEIZED DOCUMENTS 'AND HE HAD SIMPLV STATED THAT IN THE SEIZED DOCUMENTS NO EVIDE NCE' ABOUT THE SUPPLY OF NEWSPRINTS TO THE ALLOTTEES WERE FOUND. DURING THE REMAND PROCEEDINGS BY CIT(A), THE AO WAS ASKED TO EXAMINE THE SEIZED DOCUMENTS TO FIND OUT AS TO WHETHER THER E IS ANY DOCUMENT WHICH MAY SUGGEST THAT THE ASSESSEE HAD SOLD THE NEWSPRINT IN UNAUTHORIZED MAR KET WHICH MAY LEAD TO REJECTION OF BOOKS OF ACCOUNT AND ESTIMATION OF INCOME. HOWEVER, IN THE R EMAND REPORT, THE AO HAS KEPT SILENCE ON THIS ISSUE. IN FACT, IN BOTH THE ASSESSMENT ORDERS, I.E., THE ORIGINAL ORDER U/S. 143(3) DT. 27/3/1991 AND THE ORDER UNDER APPEAL, THERE IS NO DISCUSSION OF ANY OF THE SEIZED DOCUMENTS WHICH MAY SUPPORT THE VIEW OF THE AO THAT THE ASSESSEE, AFTER LIFTING THE NEWSPRINTS FROM THE STC, WAS SELLING THE SAME IN THE UNAUTHORIZED MARKET. WE FIN D FROM ASSESSMENT ORDER, THAT THE AO HAD MADE A PRESUMPTION THAT GENERALLY THE CITIZENS ARE LAW ABIDING AND HENCE THEY WOULD NOT MAKE PAYMENT TO THE ASSESSEE FOR NEWSPRINTS OTHERWISE TH AN CROSSED CHEQUE OR BANK DRAFT IN VIOLATION TO PROVISIONS OF SEC. 40A(3) OF THE ACT, WHEREAS, T HE ASSESSEE HAD SHOWN MOST OF THE RECEIPTS BY WAY OF CASH OR UNCROSSED DEMAND DRAFTS. IN VIEW OF THE FACTS, WE ARE OF THE VIEW THAT AS FAR AS THE ASSESSEE IS CONCERNED, HE HAD SHOWN RECEIPT OF CASH AND NOT AN EXPENDITURE IN CASH. WE FIND THAT THE ASSESSEE HAD SHOWN RECEIPTS IN CASH FROM T HE ALLOTTEE NEWSPAPERS AND PERIODICALS, IT DOES NOT MEAN THAT THE ASSESSEE HIMSELF WAS SELLING THE NEWSPRINTS IN CASH IN UNAUTHORIZED MARKET. THE ASSESSEE PRODUCED COPIES OF LEDGER ACCOUNTS OF THESE PARTIES. THE SAID LEDGER ACCOUNT WAS SEIZED DURING THE COURSE OF SEARCH. ON PERUSAL OF L EDGER ACCOUNT OF THESE PARTIES IT IS OBSERVED THAT THE NEWSPRINT WAS SUPPLIED TO THEM AND PAYMENT WAS ALSO RECEIVED BY THE ASSESSEE. THE SAID LEDGER ACCOUNT CLEARLY MENTIONED THE AUTHORIZATION NUMBER AND DATE, DATE OF RECEIPT, SIZE OF PAPER, NUMBER OF REELS, WEIGHT, NUMBER AND DATE OF MEMO OF DELIVERY AND AMOUNT ETC. HENCE, WE ARE OF THE VIEW THAT IT CANNOT BE SAID THAT EITH ER THESE PARTIES DID NOT MAKE THE PAYMENT TO THE ASSESSEE OR DID NOT LIFT THE NEWSPRINTS. THEREFORE, ON THE BASIS OF 3-4 PARTIES OUT OF ABOUT 200 ALLOTTEES, THE ADVERSE INFERENCE CANNOT BE DRAWN IN THE HANDS OF ASSESSEE. IN THE CASE OF ASSESSEE, HE HAD MAINTAINED PROPER BOOKS OF ACCOUNT AND THERE IS NO MATERIAL ON RECORD TO SHOW THAT THE HE HAD MADE SALE OF NEWSPRINTS IN UNAUTHORIZED MARKET. HENCE, THE BOOKS OF ACCOUNT OF THE 6 ITA NO.388/KOL/2012 UTTAM JAIN, AY 1987-88 APPELLANT CANNOT BE REJECTED BY INVOKING SECTION 14 5(2) AND THE TURNOVER/PROFIT CANNOT BE ESTIMATED. IN VIEW OF ABOVE, IN THE ABSENCE OF ANY EVIDENCE OF SELLING THE NEWSPRINTS IN UNAUTHORIZED MARKET BY THE ASSESSEE, THE CIT(A) HAD RIGHTLY HELD THAT THE AO WAS NOT JUSTIFIED IN REJECTING THE BOOKS OF ACCOUNT AND ESTIMATING EI THER THE TURNOVER OR THE PROFIT OF THE ASSESSEE FOR THE YEAR UNDER APPEAL. ACCORDINGLY, WE CONFIRM THE ORDER OF CIT(A) AND THIS ISSUE OF REVENUES APPEAL IS DISMISSED. 6. THE NEXT ISSUE IN THIS APPEAL OF REVENUE IS AGAI NST THE ORDER OF CIT(A) DELETING THE UNEXPLAINED CASH CREDIT OF RS.7.86 LACS. 7. BRIEFLY STATED FACTS ARE THAT THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS NOTED THAT THE ASSESSEE HAS SHOWN CASH CREDIT IN THE NAME OF FOLLOWING PERSONS: SHRI BALSINGER SINGH ` RS. 28,000/- SHRI A. K. MULLICK RS. 15,000/- SHRI S. K. MULLICK RS. 15,000/- SHRI BIMAN BEHARI SAHA RS. 28,000/- MAMONI FILMS RS.7,00,000/- RS.7,86,000/- ACCORDING TO AO, ASSESSEE COULD NOT PRODUCE ANYTHIN G TO SUPPORT THIS CASH CREDIT, HENCE, HE ADDED THE SAME AS UNEXPLAINED CASH CREDIT. AGGRIEV ED, ASSESSEE PREFERRED APPEAL BEFORE CIT(A). 8. CIT(A) AFTER GOING THROUGH THE LOAN CONFIRMATION S AND OTHER DOCUMENTS FILED BY THE ASSESSEE IN SUPPORT OF HIS CLAIM OF GENUINENESS OF LOAN TRANSACTIONS DELETED THE ADDITION BY OBSERVING THAT ON PERUSAL OF LOAN CONFIRMATIONS OF SHRI BALSINGER . SINGH, BIMAN BEHARI SAHA, A.K. MULLICK AND SHRI S.K. MULLICK, IT IS OBSERVED THAT THE LOAN OF RS.27,000/- EACH FROM SHRI BALSINGER SINGH, BIMAN BEHARI SAHA AND LOAN OF RS.1 5,000/- EACH FROM SHRI A.K. MULLICK AND SHRI S.K. MULLICK WERE RECEIVED THROUGH CHEQUE. ALL THE CREDITORS HAD CONFIRMED THE LOAN GIVEN BY THEM AND ALSO MENTIONED THEIR GIR NUMBER AND ADD RESSES. THE A.O. HAS NOT DOUBTED THE GENUINENESS AND CORRECTNESS OF THE LOAN CONFIRMATIO NS AND HENCE, I AM OF THE OPINION THAT THERE IS NO REASON TO MAKE THE ADDITION AGGREGATING TO RS .86,000/- ON ACCOUNT OF THE LOAN TAKEN BY THE APPELLANT FROM THE ABOVE-MENTIONED FOUR PARTIES. TH E AO, IS DIRECTED TO DELETE THE ADDITION OF RS.86,000/-. SIMILARLY, IT IS OBSERVED THAT FROM M/ S. MAMONI FILMS, THE APPELLANT HAD TAKEN LOAN OF RS. 7 LAKH BY CHEQUE ON 20.5.1987. THE SAID LOAN WAS RETURNED BY HIM ON 12/11/1987. ON PERUSAL OF BALANCE-SHEET AND PROFIT & LOSS A/C OF M /S. MAMONI FILMS FOR THE YEAR ENDED 14/4/1987, IT IS OBSERVED THAT THE SAID CONCERN WAS ENGAGED IN THE BUSINESS OF PRODUCTION AND FILM DISTRIBUTION ETC. M/S. MAMONI FILMS HAD ALSO F ILED LOAN CONFIRMATION GIVING THE ADDRESS AND 7 ITA NO.388/KOL/2012 UTTAM JAIN, AY 1987-88 GIR NO. IN THE COURSE OF REMAND PROCEEDINGS THE AO HAS NOT DOUBTED ABOUT THE CORRECTNESS OF THE LOAN CONFIRMATION FILED BY THE SAID CONCERN. HE NCE, I AM OF THE OPINION THAT NO ADDITION U/S. 68 CAN BE MADE ON ACCOUNT OF LOAN TAKEN FROM M/S. M AMONI FILMS. I ALSO FIND FORCE IN THE SUBMISSION OF THE APPELLANT THAT THE LOAN OF RS. 7 LAKH FROM M/S. MAMONI FILMS WAS TAKEN IN THE PREVIOUS YEAR RELEVANT TO AY 1988-89 AND NOT IN TH E PREVIOUS YEAR RELEVANT TO AY 1987-88. AGGRIEVED, REVENUE CAME IN APPEAL BEFORE TRIBUNAL. 9. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE CIT(A) AFTER TAKING LOAN CONFIRMAT IONS AND OTHER DOCUMENTS DELETED THE ADDITION RESPECT TO LOAN CREDITORS TO THE EXTENT OF RS.86,000/- IN THE NAMES OF SHRI BALSINGER SINGH, SHRI A. K. MULLICK, SHRI S. K. MULLICK AND SHRI BIMAN BEHARI SAHA. IN RESPECT TO LOAN CREDITOR M/S. MAMONI FILMS OF RS.7,00,000/- THERE I S A CATEGORICAL FINDING RECORDED BY CIT(A) THAT THE LOAN PERTAINS TO AY 1988-89 AND NOT TO THE RELEVANT AY 1987-88. ONCE THIS IS THE POSITION, THE SAME WAS CONFRONTED TO LD. SR. DR WHE THER HE HAS SOME MATERIAL TO CONTROVERT THE SAME, HE COULD NOT REPLY. IN SUCH CIRCUMSTANCES, W E ARE OF THE VIEW THAT CIT(A) HAS RIGHTLY DELETED THE ADDITION IN RESPECT TO CASH CREDITS AND WE CONFIRM THE SAME. THIS ISSUE OF REVENUES APPEAL IS DISMISSED. 10. THE NEXT ISSUE IN THIS APPEAL OF REVENUE IS AGA INST THE ORDER OF CIT(A) DELETING THE ADDITION OF UNEXPLAINED CASH CREDIT OF RS. 2 LACS. 11. BRIEFLY STATED FACTS ARE THAT THE AO NOTICED FR OM THE SEIZED DOCUMENTS THAT ONE M/S. INDUSTRIAL PAPERS WAS FOUND TO BE FUNCTIONING FROM ASSESSEES BUSINESS PREMISES NO. 3. BENTINCK STREET, KOLKATA, WHICH IS THE SAME ADDRESS FOR ASSE SSEES CONCERN PAPER PROCESS & INDUSTRIES ALSO. ACCORDING TO THIS PAPER PROCESS & INDUSTRIES , M/S. INDUSTRIAL PAPER IS UNDER THE OWNERSHIP OF ONE SHRI RAM BALAK SINGH. AS PER THESE DOCUMENT S, SRI RAM BALAK SINGH IS BENAMI OF THE ASSESSEE AND IN REALITY, ACCORDING TO AO, THIS INDU STRIAL PAPER BELONGS TO ASSESSEE AND THERE IS CASH INTRODUCTION OF RS. 2 LACS AS ON 31.03.1987. ACCORDINGLY, THE AO MADE ADDITION OF THIS RS.2 LACS AS UNEXPLAINED CASH CREDIT IN THE HANDS O F THE ASSESSEE. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE CIT(A), WHO DELETED THE ADDITION BY O BSERVING AS UNDER: UNDER THE CIRCUMSTANCES, I AM OF THE OPINION THAT MERELY FOR THE REASON THAT CERTAIN BOOKS OR DOCUMENTS OF THE BUSINESS OF SHRI RAM BALAK SINGH W ERE FOUND AT THE PREMISES OF THE APPELLANT, THEN IT WOULD CONCLUSIVELY PROVE THAT IT WAS APPELL ANT'S BENAMI BUSINESS. I AM ALSO OF THE OPINION THAT TO TREAT BUSINESS OF A PERSON AS BENAMI BUSINE SS OF ANOTHER PERSON, THE ONUS IS ON THE AO TO PROVE THE SAME. HOWEVER, AS MENTIONED ABOVE, THERE IS NOTHING ON RECORD TO PROVE THE SAME, EXCEPT THE PRESUMPTION MADE IN THE ORDER U/S. 132(5) OF TH E ACT. HOWEVER, ON MERE PRESUMPTION, BUSINESS OF A PERSON COULD NOT BE TREATED AS BENAMI BUSINESS OF ANOTHER PERSON. IN VIEW OF THE ABOVE, I AM 8 ITA NO.388/KOL/2012 UTTAM JAIN, AY 1987-88 OF THE OPINION THAT IT CANNOT BE SAID THAT THE BUSI NESS IN THE NAME OF M/S INDUSTRIAL PAPER WAS THE BENAMI BUSINESS OF THE APPELLANT AND THAT, HE HAD D EPOSITED THE SUM OF RS. 2, LAKH IN THE BANK ACCOUNT OF SHRI RAM BALAK SINGH. THEREFORE, THE AO WAS NOT JUSTIFIED IN MAKING ADDITION OF RS.39,000/- ON ACCOUNT OF ESTIMATED PROFIT AND ADDI TION OF RS. 2 LAKH ON ACCOUNT OF UNEXPLAINED CASH CREDIT. HE IS DIRECTED TO DELETE BOTH THE ADDI TIONS. AGGRIEVED, REVENUE CAME IN SECOND APPEAL BEFORE TRI BUNAL. 12. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUG H FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE ENTIRE ADDITION IS BASED ON A PROV ISIONAL ORDER PASSED U/S/. 132(5) OF THE ACT ESTIMATED THE INCOME OF THE ASSESSEE AND BY VIRTUE OF WHICH HOLDING THAT M/S. INDUSTRIAL PAPERS WAS BENAMI OF THE ASSESSEE INSTEAD OF SHRI RAM BALA K SINGH. NO DOUBT CERTAIN BOOKS AND DOCUMENTS OF SHRI RAM BALAK SINGH WERE FOUND FROM T HE PREMISES OF THE ASSESSEE BUT IT DOES NOT PROVE THAT THIS BUSINESS BELONGS TO ASSESSEE OR ASSESSEE IS BENAMIDER OF THE SAME. THE ONUS IS ON REVENUE TO PROVE THAT THE ASSESSEE IS BENAMID AR OF THE INDUSTRIAL PAPERS. IN VIEW OF THE ABOVE, WE ARE OF THE VIEW THAT THE CIT(A) HAS RIGHT LY DELETED THE ADDITION AND WE CONFIRM THE SAME. THIS ISSUE OF REVENUES APPEAL IS DISMISSED. 13. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 02.03.2016. SD/- SD/- (M. BALAGANESH) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 2ND MARCH , 2016 JD. SR. P.S COPY OF THE ORDER FORWARDED TO: 1. APPELLANT ITO, WARD-31(1), KOLKATA 2. RESPONDENT SHRI UTTAM JAIN, L/H OF HEMRAJ BEGWANI , 3, BENTINCK STREET, KOLKATA-700 001. 3. CIT(A) , KOLKATA 4. CIT , KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .