SHASHIKIRAN SHETTY, MUMBAI V. ACIT CEN CIR 44, MUMBAI

ITA 4019/MUM/2014

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5164 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 7 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2010-2011
• Appeal Filed On: 02-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R MANJUNATHA SWAMY
• Keywords: Document seized; Additional evidence; Initiation of penalty proceedings; Accommodation entries; Documents seized
• Section: 147; 131; 246; 148; 143(3); 142(1)

Judgement Text

1 ITA 4019/MUM/2014 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E, MUMBAI BEFORE SHRI PAWAN SINGH(JUDICIAL MEMBER) AND SHRI G MANJUNATHA (ACCOUNTANT MEMBER) ITA NO. 4019/MUM/2014 (ASSESSMENT YEAR : 2010-11) SHASHI KIRAN SHETTY 5 TH FLOOR, AAVASHYA HOUSE CST ROAD, KALINA, SANTACRUZ (E), MUMBAI 400 098 PAN : AMEPS5601B VS ACIT, CENT.CIR.44, MUMBAI APPELLANT RESPONDEDNT APPELLANT BY SHRI PARESH SHAPARIA RESPONDENT BY SHRI R MANJUNATHA SWAMY DATE OF HEARING 08-01-2019 DATE OF PRONOUNCEMENT 01-02-2019 O R D E R PER G MANJUNATHA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST ORDER OF THE CIT(A)- 38, MUMBAI DATED 25-03-2014 AND IT PERTAINS TO AY 2 010-11. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- I. CONFIRMATION OF ADDITION OF RS. 76,59,558 ON ACCOUNT OF TRANSACTIONS OF SEALAND PORTS PVT LTD. O F RS. 40,88,730 AND AVASH LOGISTICS PARK PVT. LTD. OF RS. 35,70,828 WITH M/S RIKHAV BROKERS PVT. LTD. 1. THE LEARNED CIT(A) ERRED IN UPHOLDING THE ADDI TION OF RS. 76,59,558 ON ACCOUNT OF TRANSACTIONS ENTERED INTO BY SEALAND POR TS PVT. LTD (RS. 40,88,730) 2 ITA 4019/MUM/2014 AND AVASH LOGISTICS PARKS PVT. LTD. (RS. 35,70,828) WITH M/S RIKHAV BROKERS PVT. LTD. IN CASE OF THE APPELLANT. 2. THE ADDITION ON ACCOUNT OF TRANSACTIONS OF SEA LAND PORTS PVT. LTD (RS. 40,88,730) AND AVASH LOGISTICS PARKS PVT. LTD. (RS. 35,70,828) WITH M/S RIKHAV TRADERS PVT. LTD. IS REQUIRED TO BE DELETED. II. ENHANCEMENT OF INCOME BY RS. 2,90,00,000 O N ACCOUNT OF TRANSACTIONS BY AVASH LOGISTICS PARK PVT LTD WITH M/S KINJAL DEVELOPERS 1. THE LEARNED CIT(A) ERRED IN ENHANCING THE INCO ME BY RS. 2,90,00,000 ON ACCOUNT OF TRANSACTIONS BY AVASH LOGISTIC PARK PVT LTD WITH M/S KINJAL DEVELOPERS IN CASE OF THE APPELLANT. 2. THE ENHANCEMENT OF INCOME ON ACCOUNT OF TRANSA CTIONS BY AVASH LOGISTIC PARK PVT LTD WITH M.S KINJAL DEVELOPERS OF RS. 2.90 CRORE IN THE HANDS OF APPELLANT REQUIRES TO BE DELETED. III. ENHANCEMENT OF INCOME BY RS. 2.00,00.000 ON ACCOUNT OF TRANSACTIONS BY SEALAND PORTS PVT LTD WITH M/S PURVI ESTATES I' 1. THE LEARNED CIT(A) ERRED IN ENHANCING THE INCO ME BY RS. 2,90,00,000 ON ACCOUNT OF TRANSACTIONS BY SEALAND PORTS PVT. LTD W ITH M/S PURVI ESTATE IN CASE OF THE APPELLANT. ., . 2. THE ENHANCEMENT OF INCOME ON ACCOUNT OF TRANSA CTIONS BY SEALAND PORTS PVT. LTD WITH M/S PURVI ESTATE OF RS. 2.00 CRORE IN THE HANDS OF APPELLANT REQUIRES TO BE DELETED. IV. INITIATION OF PENALTY PROCEEDINGS U/S 274 R.W.S 271AAA OF THE INCOME TAX ACT, 1961 ON ENHANCED INCO ME OF RS.4.90,00,000 1. THE LEARNED CIT(A) ERRED IN INITIATING PENALTY PROCEEDINGS U/S 274 R.W.S. 271AAA OF THE INCOME TAX ACT, 1961 2. THE LEARNED CIT(A) OUGHT NOT TO HAVE INITIATED PENALTY PROCEEDINGS U/S 274 R.W.S 271AAA OF THE INCOME TAX ACT, 1961. 2. THE BRIEF FACTS OF THE CASE ARE THAT A SEARCH & SEIZURE ACTION U/S 132(1) OF THE I.T.ACT, 1961 WAS CARRIED OUT IN ALL CARGO G ROUP OF COMPANIES ON 10-07- 2009. THE ASSESSEE IS ONE OF THE CONSTITUENT INDIV IDUALS OF THE GROUP. DURING THE COURSE OF SEARCH, A DOCUMENT WAS SEIZED WHICH R ELATED TO PAYMENT MADE BY M/S SEALAND PORTS PVT LTD IN CONNECTION WITH N. A. CONVERSION OF THE LAND AT 3 ITA 4019/MUM/2014 NANA LYZA, GUJARAT AS PER PAGE 7 OF THE ANNEXURE A- 1 TO PANCHANAMA DATED 11-07-2009 FROM THE RESIDENCE OF SHRI SASHIKIRAN SH ETTY AND SMT. ARATHI SHETTY AT 752, SHAMSHIBA, NARGIS DUTT ROAD, PALI HILL, BAN DRA (W). DURING THE COURSE OF SEARCH, A STATEMENT U/S 132(4) WAS RECORDED WHER E A SPECIFIC QUESTION WAS ASKED TO GIVE DETAILS ABOUT THE SEIZED DOCUMENT. I N RESPONSE, THE ASSESSEE STATED THAT THE GROUP HAS PAID AMOUNT TO M/S RIKHAV BROKERS PVT LTD FOR SERVICES RENDERED BY THEM FOR WHICH NECESSARY TDS H AS BEEN DEDUCTED. CONSEQUENT UPON THE SEARCH, THE CASE WAS TAKEN UP F OR SCRUTINY AND ACCORDINGLY NOTICES U/S 143(2) AND 142(1) OF THE AC T, WERE ISSUED. IN RESPONSE TO NOTICES, THE AUTHORISED REPRESENTATIVE OF THE AS SESSEE APPEARED FROM TIME TO TIME AND FILED VARIOUS DETAILS, AS CALLED FOR. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO CALLED UPON THE ASSESSEE TO EXP LAIN NATURE AND DETAILS OF PAYMENTS MADE BY M/S SEALAND PORTS PVT LTD AND M/S AVASH LOGISTICS PARK PVT LTD TO M/S RIKHAV BROKERS PVT LTD. IN RESPONSE, TH E ASSESSEE STATED THAT THE GROUP HAS ACQUIRED LANDS IN NANA LYZA, GUJARAT FOR DEVELOPMENT OF PORT FOR WHICH CERTAIN PAYMENTS HAVE BEEN MADE TO PARTIES ST ATED IN THE SEIZED DOCUMENTS FOR MAKING PAYMENTS TO LAND OWNERS AND RE LATED EXPENSES. THE AO, AFTER CONSIDERING RELEVANT SUBMISSIONS OF THE A SSESSEE AND ALSO TAKING INTO ACCOUNT STATEMENT OF SHRI HITESH LAKHANI, DIRECTOR OF M/S RIKHAV BROKERS PVT LTD PVT LTD HELD THAT THE ASSESSEE GROUP WAS INDULG ING IN BOOKING BOGUS 4 ITA 4019/MUM/2014 EXPENSES IN ITS BOOKS OF ACCOUNT FOR TAKING OUT MON EY FROM THE BOOKS WHICH WERE INDICATED IN THE SEIZED DOCUMENT FOUND DURING THE COURSE OF SEARCH, AS PER WHICH, SHRI HITESH LAKHANI, DIRECTOR OF M/S RIK HAV BROKERS PVT LTD PVT LTD HAS ISSUED BILLS AGAINST PAYMENT BY CHEQUE FOR WHIC H HE HAS RETURNED CASH TO ASSESSEE. THE AO FURTHER OBSERVED THAT THE SEIZED DOCUMENT CLEARLY INDICATED THAT EXPENDITURE HAS BEEN BOOKED IN THE BOOKS OF M/ S SEALAND PORTS PVT LTD AND M/S AVASH LOGISTICS PARK PVT LTD AND CHEQUES WE RE ALSO ISSUED FROM TWO COMPANIES AGAINST CASH TO BE RECEIVABLE FROM SHRI H ITESH LAKHANI OF M/S RIKHAV BROKERS PVT LTD PVT LTD. THE RELEVANT OBSER VATIONS OF THE AO ARE AS UNDER:- IN THE CASE OF SEALAND PORTS P. LTD., THE ASSESSEE , VIDE THE QUESTIONNAIRE, WAS ASKED TO GIVE DETAILED COMMENTS ON THE RELEVANT SEI ZED PAPERS IN ITS CASE. IN RELATION TO THE SEIZED DOCUMENT MENTIONED & REPRODUCED ABOVE , THE ASSESSEE HAS MENTIONED IN THE SUBMISSIONS MADE DATED 08.03.2011 AS FOLLOWS: 'NOTE ON PAYMENT TO M/S. RIKHAV BROKERS PVT. LTD. DURING THE YEAR, THE ASSESSEE HAS MADE PAYMENT OF RS. 48,31,140/- TO M/S. RIKHAV BROKERS PVT. LTD. TDS IS ALSO DEDUCTED ON THE SAID AMOUNT OF RS. 5,47,368/-. HOWEVER, THE SAID AMOUNT IS NOT CLAIMED AS EXPENSE DURING THE YEAR. THIS IS IN ACCORDANCE WITH THE STATEMENT RECO RDED U/S.T32F4ROTTFHTTF~ACFAWNG' THE BOURSE OF SEARCH PROCEEDINGS ON 10.07.2009 IN CASE OF M/S. AL(CARGO GROUP OF COMPANIES INCLUDING THE ASSESSEE.' FROM THE ABOVE SUBMISSION, IT IS QUITE EVIDENT THAT THE ASSESSEE IS NOT DISPUTING THE CONTENTS OF THE SEIZED DOCUMENT. THE SUBMISSIONS AL SO SAY THAT THE AMOUNT IS NOT CLAIMED AS EXPENSE AS PER THE STATEMENT RECORDED U/ S. 132(4) OF THE IT ACT IN THIS RESPECT, THUS, THE ASSESSEE IS ACKNOWLEDGING THAT T HE SEIZED DOCUMENT IS GENUINE, & ALSO HAS IMPORTED ITS EFFECT, AS MENTIONED IN THE SUBMISSION REPRODUCED ABOVE. HOWEVER, THE SAID SEIZED DOCUMENT HAS EVEN FURTHER IMPLICATION, IF GONE THROUGH PROPERLY. THE FIRST PART THAT THE EXPENSE CLAIMED O N THIS BASIS IS NOT GENUINE HAS BEEN ACCEPTED BY THE ASSESSEE, HOWEVER, THE LATER P ART PERTAINING TO 'RECEIVABLE 40,88,730' HAS NOT BEEN ACCEPTED BY THE ASSESSEE. THE TRUE IMP ORT OF THE SAID SEIZED DOCUMENT IS THAT OUT OF THE PAYMENT MADE TO M/S. RIKHAB TRADERS OF RS. 43,80,000/-, AFTER CONSIDERING THE COST TO BE INCUR RED BY M/S. RIKHAB TRADERS OF RS. 2,91,270/-, THE BALANCE AMOUNT OF RS. 40,88,730/- I S RECEIVABLE BACK BY THE ASSESSEE. THE SEIZED DOCUMENT IS ONE & THE SAME. HA VING ACCEPTED THE FIRST PART, IT WAS INCUMBENT ON THE ASSESSEE TO ACCEPT THE LATER P ART ALSO, WHICH HAS NOT BEEN DONE BY IT. ON THE BASIS OF THE SARD SEIZED DOCUMEN T FOUND FROM THE RESIDENCE OF SHRI. SHASHIKIRAN SHETTY, & IN VIEW OF THE ABOVE DI SCUSSION ON THE SAME, IT IS, THEREFORE, HELD THAT AS MENTIONED ON THE SEIZED DOC UMENT THE AMOUNT OF RS. 40,88,730/- - MENTIONED AS 'RECEIVABLE' IN THE DOCU MENT - HAS BEEN IN-FACT RECEIVED 5 ITA 4019/MUM/2014 BY THE ASSESSEE, & THAT IT REPRESENTS ITS UNDISCLOS ED INCOME FROM THE SAID TRANSACTION. IN VIEW OF THE ABOVE DISCUSSION, IT WAS HELD THAT T HE AMOUNT OF RS.40,88,730/- REPRESENTED UNDISCLOSED INCOME OF M/S. SEALAND PORT S P. LTD. 2010-11, & WAS TAXED AS SUCH. SIMILARLY, IN RESPECT OF THE PAYMENT MADE BY M/S. A VASH PARK P. LTD. OF RS.38,25,204/- TO M/S. RIKHAV TRADERS P. LTD. ON A~ CCOUNT OF N.A. CONVERSION WORK, IT WAS HELD THAT THE AMOUNT OF RS. 35,70,828/~ (AFTER DEDUCTING THE CHARGES OF M/S. RIKHAV TRADERS P. LTD.) REPRESENTED THE UNDISCLOSED INCOME OF M/S. AVASH LOGISTICS PARK P, LTD., & WAS TAXED AS SUCH IN THAT CASE. . THUS, TOTALLY AN AMOUNT OF RS. 76,59,558/- WAS TAXE D AS UNDISCLOSED INCOME IN BOTH THE ABOVE CASES, VIZ. M/S. AVASH LOGISTICS PARK P. LTD. & M/S. SEALAND PORTS P. LTD., PUT TOGETHER. MOREOVER, DURING THE COURSE OF THE SEARCH ACTION, A STATEMENT OF SHRI. HITESH LAKHANI, DIRECTOR OF M/S. RIKHAV BROKERS PVT. LTD. WAS RECORDED U/S. 131 OF THE IT ACT. IN THE SAID STATEMENT, SHRI. HITESH LAKHANI HA D CONFIRMED THAT M/S. RLKHAV BROKERS P. LTD HAD RAISED BILLS AMOUNTING TO RS. 48 ,31,1407- ON M/S. SEALAND PORTS P. LTD. & OF RS. 38,19,204/- ON M/S. AVASH LOGISTIC S PARK P. LTD.; AGAINST NET CHEQUES WORTH RS. 42,83, 772/- & RS. 33,91,8107-, R ESPECTIVELY, WERE RECEIVED - TOTALLY AMOUNTING TO RS. 76,75,582/-. IT HAS ALSO B EEN CONFIRMED BY SHRI. HITESH LAKHANI THAT M/S. RIKHAV BROKERS P. LTD. HAS NOT PR OVIDED ANY SERVICE TO M/S. AVASH LOGISTICS PARK P. LTD. OR TO M/S. SEALAND PORTS P. LTD. FURTHER, IN HIS STATEMENT, IN THE ANSWER TO Q. NO. 6 THERE-OF, IT HAS BEEN MENTIONED BY HIM THAT: SHRI. JITEN CHOKSHI APPROACHED ME THROUGH MR. RAMNLKLAL. MR. JITEN CHOKSHI IE FROM M/S. ALLCARGO GLOBAL LOGISTICS LTD. MR. JITEN CHOKSHI HAD CLEAR CUT UNDERSTANDING WITH ME THAT AS SOON AS HE REQUIRES CASH AS_PER THE EXP ENDITURE REQUIREMENT OF THE COMPANY, HE WILL GIVE ME A CALL AND WILL ARRANGE THE CASH AT THE LOCATION TOLD BY HIM. . THESE CHEQUES WERE GIVEN TO ME SOLELY & WHOLLY FOR MEETING THE CASH REQUIREMENTS OF THE C OMPANY. THIS ACCOMMODATION ENTRY WAS REGUIARIZED BY MR. JITEN CHOKSHI BY 2 AGREEMENTS DATED 17.01,2009, BEARING S TAMP PAPER NOS. BP 062228 & BP 062250, SIGNED BETWEEN (I) RIKHAV BROKERS P. LTD & M/S. AVASH LOGISTICS PARK P. LTD. FOR RS. 1,38,72,000/- & (II) M/S. RIKHAV BROKERS P. LTD & M/S. SEALAND PORTS P. LTD. FOR RS. 1,75,20,000/-. BOTH THESE AGREEMENTS ARE BOGUS & HAV E BEEN ENTERED IN TO REGULARIZE THE CASH REQUIREMENT OF M/S. SEALAND PORTS P. LTD. & M/S, AVASH' LOGISTICFPAFINR LTD.' THUS, THE ENTIRE PAYMENT MADE BY M/S. SEALAND PORTS P. LTD & M/S. AVASH LOGISTICS PARK P. LTD. TO M/S. RIKHAV BROKERS P. LTD IS BOGUS , AND THROUGH SYCH TRANSACTION THE CASH TO THAT EXTENT HAS BEEN RECEIVED BACK BY THE A SSESSEE GROUP. HOWEVER, LOGICALLY IF THE ISSUE IS ANALYSED, THE PE RSON WHO WOULD RECEIVE THE AMOUNT MENTIONED AS 'RECEIVABLE' IN THE SEIZED DOCUMENT WO ULD BE NO ONE ELSE THAN THE MANAGING DIRECTOR OF THE GROUP - & THAT IS SHRI. SH ASHIKFRAN SHETTY, THE ASSESSEE HIMSELF. EARLIER ALSO, THE ASSESSEE HAD OWNED UP UN EXPLAINED SHARE APPLICATION MONEY INTRODUCED IN ONE OF THE GROUP CONCERNS TO TH E EXTENT OF RS. 23 CRORES & HAD PAID TAXES ON THE SAME. IN VIEW OF THIS DISCUSSION, IT IS HELD THAT IT WAS THE ASSESSEE - SHRF. SHASHLKIRAN SHETTY, WHO HAS ACTUALLY RECEIVED THE ABOVE MENTIONED CASH RETURNED BY M/S. RIKHAV TRADERS P. LTD. THE ASSESSEE & HIS GROUP CONCERNS, IT SEEMS, HAVE D EVELOPED THIS KIND OF 'MODUS OPERAND!' FOR GENERATING CASH AGAINST ISSUE OF CHEQ UES THROUGH THE BANK ACCOUNTS OF THE GROUP CONCERNS. DURING THE SEARCH IN THE OF SHRI, BABULAF DOSHI, SIMILAR TRANSACTIONS WERE NOTICED. THERE, IT WAS D THAT A F EW CONCERNS OF M/S. ALLCARGO GROUP HAD MADE PAYMENTS TO I? T%ONCERNS OF.SHRI. BABUIAL R. DOSHI, WHO IN-TURN HAD WITHDRAWN CASH & REIUPED IT. THIS ISSUE HAS BEEN DI SCUSSED IN DETAIL IN THE ASSESSMENT ORDERS IN THE CASE OF SHRI. BABUIAL R. D OSHI FOR AY 2004-05 TO AY 20010-11. 6 ITA 4019/MUM/2014 3. THUS, THE AO HAS MADE SUBSTANTIAL ADDITION IN TH E HANDS OF THE ASSESSEE TOWARDS EXPENSES BOOKED IN THE NAME OF M/S SEALAND PORTS PVT LTD AND M/S AVASH LOGISTICS PARK PVT LTD AND ALSO PROTECTIVE AD DITION HAS BEEN MADE IN THE HANDS OF M/S SEALAND PORTS PVT LTD AND M/S AVASH LO GISTICS PARK PVT LTD. 4. AGGRIEVED BY THE ASSESSMENT ORDER, ASSESSEE PREF ERRED APPEAL BEFORE THE CIT(A). BEFORE THE CIT(A), THE ASSESSEE HAS RE ITERATED ITS SUBMISSIONS MADE BEFORE THE AO TO ARGUE THAT THE ADDITION CANNOT BE MADE IN THE HANDS OF THE ASSESSEE MERELY ON THE BASIS OF A PIECE OF PAPER SE IZED DURING THE COURSE OF SEARCH, WHICH NEITHER INDICATED RECEIPT OF MONEY BA CK IN CASH FOR ISSUING BILLS. THE ASSESSEE FURTHER SUBMITTED THAT THE GROUP HAS A CQUIRED LANDS IN GUJARAT FOR THE PURPOSE OF DEVELOPMENT OF PORTS THROUGH M/S AVASH LOGISTICS PARK PVT LTD AND WHATEVER EXPENDITURE HAS BEEN INCURRED FOR ACQUIRING THE LAND ALONG WITH CONSEQUENTIAL EXPENSES HAS BEEN CAPITALISED IN THE BOOKS OF TWO COMPANIES. THE ADDITION MADE BY THE AO FOR RS.40,8 8,730 AND RS.35,70,828 WAS CAPITALISED IN THE BOOKS OF THE ABOVE COMPANIES . MAKING FURTHER ADDITION IN THE HANDS OF THE ASSESSEE OF SAME AMOUNT, AMOUNT S TO DOUBLE ADDITION WHICH IS INCORRECT. THE ASSESSEE HAS FILED ELABORA TE WRITTEN SUBMISSIONS ALONGWITH CERTAIN ADDITIONAL EVIDENCE WHICH WERE FO RWARDED TO THE AO FOR HIS COMMENTS. THE AO, VIDE HIS REMAND REPORT DATED 18- 12-2013 SUBMITTED HIS REMAND REPORT ON THE ADDITIONAL EVIDENCE FILED BY T HE ASSESSEE. DURING 7 ITA 4019/MUM/2014 REMAND PROCEEDINGS, THE AO JUSTIFIED ADDITIONS MADE TOWARDS EXPENDITURE BOOKED IN THE NAME OF M/S SEALAND PORTS PVT LTD AND M/S AVASH LOGISTICS PARK PVT LTD AND RECEIVING CASH BACK FROM SHRI HITESH LA KHANI, DIRECTOR M/S RIKHAV BROKERS PVT LTD PVT LTD ON THE GROUND THAT THE SEIZ ED DOCUMENT CLEARLY INDICATED MODUS OPERANDI OF THE ASSESSEE GROUP AS P ER WHICH, THE GROUP WAS INVOLVED IN BOOKING BOGUS EXPENSES AND RECEIVING CA SH BACK FROM THE PARTIES. THIS FACT IS ALSO ADMITTED DURING THE COURSE OF SEA RCH IN THE STATEMENT RECORDED U/S 132(4) OF THE ACT. THE AO ALSO COMMEN TED ABOUT ENHANCEMENT OF ASSESSMENT IN RESPECT OF CERTAIN PAYMENTS MADE T O M/S PURVI ESTATE AND M/S KINJAL DEVELOPERS ON THE BASIS OF BANK STATEMEN T FILED BY THE ASSESSEE. THE AO HAS STATED IN HIS REMAND REPORT THAT IN FINA NCIAL YEAR 2008-09, THE ASSESSEE GROUP HAS OBTAINED BOGUS BILLS FOR APPROXI MATELY RS.153 CRORES AGAINST ISSUE OF CHEQUES TO VARIOUS PARTIES AND REC EIVED BACK CASH FROM ENTRY PROVIDERS. ON GOING THROUGH THE BANK STATEMENT OF M/S SEALAND PORTS PVT LTD IN YES BANK AND AXIS BANK, IT COULD BE SEEN THAT TH ERE WAS CLEAR CUT EXCESS BOGUS BILLS ACCOMMODATION ENTRIES WORTH RS.11.31 CR ORES WHICH IS OVER AND ABOVE DISCLOSED SUM OF RS.153 CRORES DURING THE COU RSE OF SEARCH PROCEEDINGS. THE EXCESS PAYMENT AMOUNTING TO RS.11.31 CRORES HAV E BEEN FOUND AND ACCEPTED BY THE ENTRY PROVIDERS AND THE ASSESSEE DU RING POST SEARCH ENQUIRIES. THE ABOVE SAID AMOUNT HAS NOT BEEN CONSIDERED WHILE CONCLUDING THE 8 ITA 4019/MUM/2014 ASSESSMENT. THEREFORE, THE SAME MAY BE BROUGHT TO TAX IN APPELLATE PROCEEDINGS. 5. A COPY OF THE REMAND REPORT WAS MADE AVAILABLE T O THE ASSESSEE AND THE ASSESSEE HAS FURNISHED HIS COMMENTS, VIDE LETTER DA TED 20-01-2014. THE ASSESSEE STATED THAT THE AO HIMSELF HAS ACCEPTED TH E FACT THAT THE EXPENDITURE HAS BEEN BOOKED IN BOOKS OF M/S SEALAND PORTS PVT L TD AND M/S AVASH LOGISTICS PARK PVT LTD. THEREFORE, FROM THE ABOVE IT WAS VER Y CLEAR THAT TRANSACTIONS WITH M/S RIKHAV BROKERS PVT LTD BE ADDED IN THE HAN DS OF THE ASSESSEE. INSOFAR AS THE ENHANCEMENT PROPOSAL ISSUED BY THE CIT(A) RE GARDING CERTAIN PAYMENTS MADE TO M/S PURVI ESTATES AND M/S KINJAL DEVELOPERS , THE ASSESSEE DENIED OF HAVING TRANSACTED WITH THOSE PARTIES IN HIS INDIVID UAL CAPACITY AND RE-ITERATED THAT WHATEVER PAYMENTS MADE BY M/S SEALAND PORTS PV T LTD AND M/S AVASH LOGISTICS PARK PVT LTD TO M/S PURVI ESTATES AND M/S KINJAL DEVELOPERS, HAS ALREADY BEEN CONSIDERED IN THE BOOKS OF THOSE COMPA NIES, THEREFORE, THE ENHANCEMENT PROPOSAL ISSUED IN THE HANDS OF THE ASS ESSEE IS MERELY BASED ON CONJECTURES AND SURMISES, BUT NOT BASED ON ANY EVID ENCE. 6. THE LD.CIT(A), AFTER CONSIDERING RELEVANT SUBMIS SIONS OF THE ASSESSEE AND ALSO BY TAKING INTO ACCOUNT THE FACT THAT THE ASSES SEE GROUP HAS ADMITTED OF BOOKING BOGUS EXPENSES IN THEIR BOOKS OF ACCOUNT TO TAKE OUT MONEY TO BE PAID FOR ACQUISITION OF LAND HELD THAT THE MATERIAL COLLECTED DURING THE COURSE 9 ITA 4019/MUM/2014 OF SEARCH COUPLED WITH CIRCUMSTANTIAL EVIDENCE CLEA RLY INDICATE THAT THE ASSESSEE IS THE ULTIMATE BENEFICIARY BY SYSTEMATICA LLY SIPHONING OFF THE FUNDS OF THE ABOVE MENTIONED COMPANIES FOR ITS OWN USE. THE ASSESSEES CLAIM THAT THE CASH GENERATED IS USED FOR ADDITIONAL CASH PAYMENT FOR LAND AND LAND DEVELOPMENT, THEREFORE, THE SAME IS CAPITALISED IN THE BOOKS OF THE RELEVANT COMPANIES IS ONLY A MAKE BELIEF STATEMENT OR MAKE BELIEF DOCUMENT, SINCE SUCH CLAIM HAS NOT BEEN PROVED. THE SURROUNDING CI RCUMSTANCES SHOW THAT THE ASSESSEE, SHRI SASHIKIRAN J SHETTY IS IN RECEIPT OF MONEY FROM M/S RIKHAV BROKERS PVT LTD AND ALSO IN RECEIPT OF RS.4.9 CRORE S AS POINTED OUT IN THE REMAND REPORT. THEREFORE, HE OPINED THAT THERE IS NO ERROR IN THE FINDINGS OF THE AO IN MAKING ADDITION TOWARDS EXPENDITURE BOOKE D IN THE HANDS OF COMPANIES AS UNEXPLAINED INCOME OF THE ASSESSEE BEC AUSE THE ASSESSEE HAS FAILED TO PROVE THAT THE SAID EXPENDITURE HAS BEEN INCURRED FOR THOSE COMPANIES. THEREFORE, BY FOLLOWING THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS DURGAPRASAD MORE 82 ITR 540 (SC) AND ALSO BY TAKING INTO ACCOUNT THE STATEMENTS RECORDED FROM THE PARTIES, W HO WERE INVOLVED IN PROVIDING ACCOMMODATION ENTRIES, CAME TO THE CONCLU SION THAT THE ASSESSEE IS THE ULTIMATE BENEFICIARY OF THE MONEY TAKEN OUT FRO M THE COMPANIES. ACCORDINGLY, HE UPHELD ADDITION MADE BY THE AO AND ALSO ENHANCED THE 10 ITA 4019/MUM/2014 INCOME TO THE TUNE OF RS.4.90 CRORES. THE RELEVANT OBSERVATIONS OF THE LD.CIT(A) ARE AS UNDER:- 9.6 IN THE ABOVE TRANSACTIONS, THE PAYMENT SHOWN A GAINST M/S. RIKHAV BROKERS PVT. LTD. FOR RS.0.33 CRORE AS ON 28.05.200 9 AND RS.0.43 CRORE AS ON 12.08.2009 ARE ALREADY UNDER CONSIDERATION IN TH E ASSESSMENT ORDER WHICH IS UNDER CONSIDERATION NOW. AS AGAINST THE PA YMENTS IN FAVOUR OF M/S.KINJAL DEVELOPERS OF RS.2.90 CRORE FROM THE BAN K ACCOUNT OF M/S.AVASH LOGISTICS PARK PVT. LTD. AND A SUM OF RS. 2 CRORE IN FAVOUR OF M/S.PURVI ESTATE FROM THE BANK ACCOUNT OF M/S.SEALA ND PORTS PVT. LTD., AN ENHANCEMENT PROPOSAL U/S.251(1)(A) OF THE ACT WAS I SSUED TO THE APPELLANT AFFORDING OPPORTUNITY UNDER SUBSECTION 2 OF SECTION 251 OF THE ACT REQUESTING HIM TO OFFER HIS COMMENTS AND OBJECTIONS AGAINST THE PROPOSAL. IN RESPONSE THE APPELLANT STATED THAT THE COMPANIES CONCERNED HAVE NOT CLAIMED THE SAID EXPENSES AND THE SAME HAVE BEEN CA PITALIZED IN THEIR ACCOUNTS. HOWEVER CAPITALIZATION OF THE SAID SUMS T OWARDS LAND ACCOUNT CAN BE ACCEPTED ONLY IF THE APPELLANT COULD ESTABLI SH OR PROVE THAT THE PAYMENTS HAVE BEEN MADE TOWARDS THE COST OF THE LAN D. SHRI VASUDEV THAKKER MERELY STATED THAT THE SAID PAYMENTS WERE M ADE TO THE LAND OWNERS AS ADDITIONAL CASH PAYMENT AND ALSO FOR LAND DEVELOPMENT. HOWEVER THE STATEMENT HAS NOT BEEN PROVED. HE FAILE D TO GIVE DETAILS OF SUCH PAYMENTS. IF SUCH PAYMENTS WERE TRUE, WHAT PRE VENTED THE APPELLANT OR SHRI VASUDEV THAKKER FROM FURNISHING THE COMPLET E DETAILS OF PAYMENTS TO THE LAND OWNERS AND OTHER EXPENSES ALLEGED TO HA VE BEEN INCURRED TOWARDS LAND DEVELOPMENT. SINCE THE APPELLANT SHRI SHASIKIRAN SHETTY AS WELL AS SHRI VASUDEV THAKKER FAILED TO ESTABLISH SU CH PAYMENTS TOWARDS LAND COST, THE SAME CANNOT BE ACCEPTED TO BE INCLUD ED AS THE COST OF THE LAND IN THE BALANCE SHEET. THE APPELLANT'S CLAIM TH AT A SUM OF RS.2.90 CRORE IS PART OF RS. 153 CRORE IS ALSO FOUND TO BE NOT TRUE. ALTERNATIVELY, THE ONLY PROPOSITION THAT ARISES IN THE WHOLE SITUATION IS THAT THE APPELLANT HAS RECEIVED THE CASH AND MUST HAVE USED IT OR PLANNING TO USE IT FOR VARIOUS PURPOSES KNOWN ONLY TO HIM. ONE SUCH PURPOSE CAME T O BE KNOWN IS THE INVESTMENT MADE IN THE SHARES OF M/S INDIA TOURIST AND HERITAGE VILLAGE PVT. LTD. THE CIRCUMSTANTIAL EVIDENCES CLEARLY INDI CATE THAT THE~ APPELLANT IS THE ULTIMATE BENEFICIARY BY SYSTEMATICALLY SIPHO NING OFF THE FUNDS OF THE ABOVE MENTIONED THREE COMPANIES FOR HIS OWN USE. IT IS HELD BY HON'BLE SUPREME COURT IN THE CASE OF CIT VS. DURGA PRASAD M ORE 82 ITR 540 (SC) THAT WHERE A PARTY RELIES ON SELF-SERVING RECITALS IN A DOCUMENT, IT IS FOR THAT PARTY TO ESTABLISH THE TRUTH OF THESE RECITALS. IT WAS FURTHER HELD BY THE APEX COURT IN THIS CASE THAT THE TAX AUTHORITIES ARE ENT ITLED TO LOOK INTO THE SURROUNDING CIRCUMSTANCES TO FIND OUT THE REALITY O F SUCH RECITALS. 9.7 THE APPELLANT'S CLAIM THAT THE CASH GENERATED I S USED FOR THE ADDITIONAL CASH PAYMENT FOR LAND PURCHASE AND LAND DEVELOPMENT , THEREFORE, THE SAME IS CAPITALIZED IN THE BOOKS OF THE RELEVANT CO MPANIES IS ONLY A MAKE BELIEVE STATEMENT OR MAKE BELIEVE DOCUMENT SINCE SU CH CLAIM HAS NOT BEEN PROVED. THE SURROUNDING CIRCUMSTANCES SHOW THA T THE APPELLANT SHRI SHASHIKIRAN SHETTY IS IN RECEIPT OF RS.76,59,558/- AS DISCUSSED IN THE 11 ITA 4019/MUM/2014 ASSESSMENT ORDER AND ALSO IN RECEIPT OF RS.4.90 CRO RE AS POINTED OUT IN THE REMAND REPORT. FUNDS SIPHONED OFF IN THIS MANNER IS INCOME FOR THE RECIPIENT AS THE APPELLANT IN THE SIMILAR CIRCUMSTA NCES ALREADY ADMITTED UNDISCLOSED INCOME OF RS.23 CRORE AS SHARE CAPITAL INVESTED IN M/S.INDIA TOURIST AND HERITAGE VILLAGE PVT. LTD. 9.8 THE APPELLANT ALSO CONTENDED THAT NO OPPORT UNITY OF BEING HEARD WAS GRANTED BY THE A.O DURING THE COURSE OF ASSESSM ENT PROCEEDINGS. THIS CONTENTION WAS NOT ACCEPTED BY THE A.O IN THE REMAND REPORT. WITHOUT PREJUDICE TO THE ABOVE, IT MAY BE MENTIONED THAT TH E APPELLANT WAS GIVEN SUFFICIENT OPPORTUNITIES ON THE ISSUE DURING THE CO URSE OF APPEAL PROCEEDINGS. THEREFORE, THE SUBMISSION OF THE APPEL LANT THAT NO OPPORTUNITY WAS GRANTED IS ADEQUATELY TAKEN CARE DU RING APPEAL PROCEEDINGS. THE APPELLANT ALSO CONTENDED THAT NO O PPORTUNITY OF CROSS EXAMINATION OF SHRI HITESH LAKHANI, DIRECTOR OF M/S .RIKHAV TRADERS PVT. LTD. WAS GIVEN DURING THE COURSE OF ASSESSMENT PROC EEDINGS. HOWEVER, DURING THE COURSE OF REMAND PROCEEDINGS, THE A.O PO INTED OUT THAT THE APPELLANT DID NOT ASK FOR CROSS EXAMINATION AT THE TIME OF ASSESSMENT PROCEEDINGS AND THEREFORE, THE SAME WAS NOT PROVIDE D. DURING THE COURSE OF REMAND PROCEEDINGS, THE A.O VIDE ORDER SHEET NOT ING DATED 19.08.2013 HAD GIVEN OPPORTUNITY TO THE REPRESENTATIVE OF THE APPELLANT SHRI C.C. DANGI TO CROSS EXAMINE SHRI HITESH LAKHANI, WHICH W AS REFUSED. THIS FACT HAS BEEN ADMITTED BY THE APPELLANT WHILE SUBMITTING HIS REJOINDER TO THE REMAND REPORT. 9.9 IN VIEW OF THE ABOVE, ADDITION OF RS.76,59,5587 - BROUGHT TO TAX IN THE ASSESSMENT ORDER IS HEREBY CONFIRMED. THE SUM OF RS .4.90 CRORE POINTED OUT IN THE REMAND REPORT IS BROUGHT TO TAX AS THE U NDISCLOSED INCOME OF THE APPELLANT AND TO THAT EXTENT THE TOTAL INCOME IS EN HANCED. THE A.O SHALL ISSUE THE DEMAND NOTICE. PENALTY U/S 271AAA OF THE ACT IS INITIATED ON THE UNDISCLOSED INCOME OF RS.4.90 CRORE FOR THE REASONS MENTIONED ABOVE. 10.0 IN GROUND NO.5 AND 6 THE APPELLANT CONTESTED THAT THERE IS A DOUBLE ADDITION SINCE THE TOTAL SUM RECEIVABLE OF R S.76,59,5587- WAS ADDED SUBSTANTIVELY IN HIS CASE AND THE SAME AMOUNT S OF RS.40,88,7307- AND RS.35,70,8287- HAVE ALSO BEEN ADDED PROTECTIVEL Y IN THE COMPANIES HANDS VIZ., M7S.SEA LAND PORTS PVT. LTD. AND M/S.AV ASH LOGISTICS PARK PVT. LTD. RESPECTIVELY. THE SUBMISSIONS OF THE APPE LLANT ARE CONSIDERED. SINCE THE ADDITIONS IN THE CASE OF M7S.SEA LAND POR TS PVT. LTD. AND M7S.AVASH LOGISTICS PARK PVT. LTD. HAVE BEEN DELETE D VIDE THIS OFFICE APPELLATE ORDERS NO.CIT(A)-38/IT-496/2011-12 AND NO .CIT(A)-38/IT- 495/2011-12 DATED 25.03.2014 RESPECTIVELY, THERE IS NO DOUBLE ADDITION AND ACCORDINGLY THESE GROUNDS ARE DISMISSED. 7. THE LD.AR FOR THE ASSESSEE SUBMITTED THAT THE LD .CIT(A) WAS ERRED IN CONFIRMING ADDITION MADE BY THE AO TOWARDS TRANSACT IONS ENTERED INTO BY M/S SEALAND PORTS PVT LTD AND M/S AVASH LOGISTICS PARK PVT LTD WITH M/S.RIKHAV 12 ITA 4019/MUM/2014 BROKERS PVT. LTD. IN THE HANDS OF THE ASSESSEE ONLY ON THE BASIS OF A PIECE OF PAPER FOUND DURING THE COURSE OF SEARCH WHICH NEITHER PRO VES THAT THE ASSESSEE HAS RECEIVED CASH BACK IN HIS INDIVIDUAL CAPACITY NOR T HERE WAS ANY FURTHER EVIDENCE IN THE POSSESSION OF THE AO TO TREAT THE SAME AS UN DISCLOSED INCOME OF THE ASSESSEE. THE LD.AR FURTHER SUBMITTED THAT THE ASS ESSEE HAS EXPLAINED WITH NECESSARY MATERIALS BEFORE THE LOWER AUTHORITIES TH AT CONTENTS FOUND IN THE DOCUMENTS SEIZED DURING THE COURSE OF SEARCH NEITHE R BELONGED TO THE ASSESSEE NOR THE TRANSACTIONS ARE ENTERED INTO BY THE ASSESS EE IN HIS INDIVIDUAL CAPACITY. THE ASSESSEE CATEGORICALLY ADMITTED THAT THOSE EXPE NDITURES ARE BOOKED IN THE HANDS OF M/S SEALAND PORTS PVT LTD AS ALSO THE SAID PAYMENT HAS BEEN CAPITALISED IN THE BOOKS OF ACCOUNT. THE AO, WITHO UT ANY FURTHER EVIDENCE IN HIS POSSESSION CAME TO THE CONCLUSION THAT THE ASSE SSEE IS ULTIMATE BENEFICIARY OF CASH SIPHONED OFF FROM THE BUSINESS FOR HIS PERS ONAL USE, DESPITE THE FACT THAT THE CASH HAS BEEN TAKEN OUT FROM THOSE COMPANI ES FOR THE PURPOSE OF MAKING VARIOUS PAYMENTS IN ORDER TO ACQUIRE LANDS A ND ALSO FOR THE PURPOSE OF NA CONVERSION OF LANDS. THE LD.AR FURTHER SUBMITTE D THAT WHEN THE DOCUMENTS FOUND DURING THE COURSE OF SEARCH CLEARLY INDICATED THAT THE ABOVESAID EXPENDITURE IS BOOKED IN THE HANDS OF COMPANY, HOW COULD IT BE TREATED AS ASSESSEES UNEXPLAINED INCOME MERELY FOR THE REASON THAT THE DOCUMENT IS FOUND IN THE POSSESSION OF THE ASSESSEE. THE FACT THAT THE ASSESSEE HAS BOOKED 13 ITA 4019/MUM/2014 EXPENDITURE IN THE HANDS OF ABOVE TWO COMPANIES IS NOT DISPUTED. THE AO AS WELL AS THE LD.CIT(A) HAVE ACCEPTED THE FACT THAT T HE DOCUMENT FOUND DURING THE COURSE OF SEARCH IS CLEARLY IN THE NAME OF ABOV E TWO COMPANIES. IN FACT, THE DIRECTOR OF M/S RIKHAV BROKERS PVT LTD HAS CLEARLY ACCEPTED THAT HE HAS TRANSACTED WITH M/S SEALAND PORTS PVT LTD AND ALSO MONEY HAS BEEN GIVEN TO THE COMPANY. THEREFORE, MAKING ADDITION IN THE HAN DS OF THE ASSESSEE FOR THE TRANSACTION BETWEEN A COMPANY AND A THIRD PARTY IS INCORRECT. 8. SIMILARLY, AS REGARDS ENHANCEMENT MADE BY THE LD .CIT(A) TOWARDS TRANSACTION BY M/S AVASH LOGISTICS PARK PVT LTD WIT H M/S KINJAL DEVELOPERS AND ALSO TRANSACTION BY M/S SEALAND PORTS PVT LTD WITH M/S PURVI ESTATES, THE LD.AR SUBMITTED THAT THESE TWO TRANSACTIONS ARE PART OF T OTAL DISCLOSURE MADE BY THE GROUP DURING THE COURSE OF SEARCH IN CONNECTION WIT H INFLATION OF EXPENDITURE IN ACQUIRING LAND AND RELATED EXPENDITURE AND THE SAID EXPENDITURE HAS BEEN BOOKED IN THE BOOKS OF M/S SEALAND PORTS PVT LTD AND M/S AVASH LOGISTICS PARK PVT LTD. THE LD.CIT(A), WITHOUT APPRECIATING THESE FACTS, HAS MADE ENHANCEMENT OF INCOME BY RS.4.90 CRORES ONLY ON THE BASIS OF STATEMENT OF SHRI VASUDEV THAKKAR DESPITE THE FACT THAT NOWHERE IN THE STATEMENT, SHRI VASUDEV THAKKAR AND SHRI HITESH LAKHANI STATED THA T THE PAYMENT HAS BEEN GIVEN TO THE ASSESSEE. FURTHER, ALL ALONG THEY STA TED THAT THEY HAVE ENTERED INTO TRANSACTIONS WITH THE COMPANIES AND PAYMENT HA S BEEN RECEIVED BY THE 14 ITA 4019/MUM/2014 COMPANIES. THEREFORE, IN THE ABSENCE OF ANY NEXUS BETWEEN PAYMENT MADE BY THE COMPANIES TO THE PARTIES ADDITION CANNOT BE MAD E FOR THE REASON THAT THE ASSESSEE IS THE ULTIMATE BENEFICIARY, ON SUSPICION AND SURMISE. 9. THE ASSESSEE ALSO HAS TAKEN A LEGAL PLEA CHALLEN GING THE ENHANCEMENT MADE BY THE LD.CIT(A) IN THE LIGHT OF CERTAIN JUDIC IAL PRECEDENTS. THE LD.AR FOR THE ASSESSEE REFERRING TO THE DECISION OF HONBLE S UPREME COURT IN THE CASE OF SHAPOORJI PALLONJI MISTRY 44 ITR 891 (SC) ARGUED TH AT THE CIT(A) DOES NOT HAVE ANY POWER TO TRAVEL OUTSIDE THE ISSUE BEFORE HIM. THE LD.CIT(A) HAVE WIDE ENOUGH POWERS TO EXAMINE THE ISSUE WHICH WAS SUBJEC T MATTER OF DELIBERATIONS BY THE AO, BUT HE CANNOT INTRODUCE A NEW SOURCE OF INCOME TO MAKE ENHANCEMENT OF ASSESSMENT BECAUSE THE POWERS OF THE APPELLATE AUTHORITY IS LIMITED TO THE EXTENT THE ISSUE HAS BEEN SUBJECT MA TTER OF ASSESSMENT BY THE AO AND CHALLENGED BEFORE THE AUTHORITY. IN THIS RE GARD, HE RELIED UPON VARIOUS JUDICIAL PRECEDENTS INCLUDING THE DECISION OF HON BLE DELHI HIGH COURT IN THE CASE OF CIT VS SARDARILAL & CO (2001) 251 ITR 864 ( DEL) AND THE DECISION OF HONBLE RAJASTHAN HIGH CURT IN THE CASE OF CIT VS A SSOCIATED GARMENTS MAKERS (1992) 197 ITR 350. 10. THE LD.DR, ON THE OTHER HAND, STRONGLY SUPPORTI NG THE ORDER OF THE LD.CIT(A) SUBMITTED THAT THE DOCUMENT FOUND DURING THE COURSE OF SEARCH AND ENQUIRIES CONDUCTED DURING POST SEARCH ENQUIRIES CL EARLY ESTABLISHED THE FACT 15 ITA 4019/MUM/2014 THAT THE ASSESSEE IS IN THE HABIT OF BOOKING BOGUS EXPENDITURE IN VARIOUS COMPANIES IN ORDER TO SIPHON OFF MONEY FOR HIS PERS ONAL USE. THIS FACT HAS BEEN ADMITTED BY THE ASSESSEE IN HIS STATEMENT RECO RDED DURING THE COURSE OF SEARCH. THIS FACT HAS BEEN FURTHER SUPPORTED BY TH E STATEMENT RECORDED FROM THE PARTIES WHO HAD FACILITATED ISSUE OF BOGUS BILL S TO THE ASSESSEE WHERE THEY HAD CATEGORICALLY ADMITTED THAT AS AND WHEN MONEY I S REQUIRED, THE ASSESSEE USED TO TAKE BILLS FROM THEM BY ISSUING CHEQUES AND AFTER DEDUCTING THEIR CHARGES, CASH WAS RETURNED TO THE PARTIES. ALTHOUG H, THE ASSESSEE HAS TAKEN ARGUMENT THAT THESE EXPENDITURES ARE BOOKED IN THE BOOKS OF COMPANIES, THE FACT REMAINS THAT THE ASSESSEE HAS ACTED IN A FIDUC IARY CAPACITY AS HEAD OF GROUP AND THE ULTIMATE BENEFIARY OF THIS CASH IS TH E ASSESSEE. THEREFORE, THE AO WAS VERY MUCH WITHIN HIS LIMITS TO CONSIDER THES E TRANSACTIONS AS UNEXPLAINED INCOME OF THE ASSESSEE. AS REGARDS ENH ANCEMENT MADE BY THE AO TOWARDS PAYMENT MADE TO M/S KINJAL DEVELOPERS AND M /S PURVI ESTATES, THE LD.DR SUBMITTED THAT THE ABOVE PAYMENTS ARE CLEARLY OUTSIDE THE AMOUNT OF DECLARATION GIVEN BY THE GROUP DURING THE COURSE OF SEARCH AND THIS FACT HAS BEEN BROUGHT OUT BY THE AO DURING REMAND PROCEEDING S. THE ASSESSEE COULD NOT REBUT THE FINDINGS RECORDED BY THE AO, EXCEPT S TATING THAT THE TRANSACTIONS WERE NOT PERTAINING TO HIM. THEREFORE, THE LD.CIT( A) WAS RIGHT IN ENHANCING THE INCOME TO THAT EXTENT AND HIS ORDER SHOULD BE UPHEL D. 16 ITA 4019/MUM/2014 11. WE HAVE HEARD BOTH THE PARTIES. PERUSED THE MAT ERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES B ELOW. WE HAVE ALSO CONSIDERED THE DOCUMENT FOUND AND SEIZED DURING THE COURSE OF SEARCH. ADMITTEDLY, THE DOCUMENT HAS BEEN FOUND DURING THE COURSE OF SEARCH CONTAINED DETAILS OF CERTAIN BILLS ISSUED BY M/S RI KHAV BROKERS PVT LTD PVT LTD TO M/S SEALAND PORTS PVT LTD AND M/S AVASH LOGISTIC S PARK PVT LTD. IN THE SAID DOCUMENT, M/S RIKHAV BROKERS PVT LTD PVT LTD HAVE ISSUED TWO BILLS, I.E. ONE IN THE NAME OF M/S SEALAND PORTS PVT LTD FOR RS.42 ,83,772 AND THE OTHER IN THE NAME OF M/S AVASH LOGISTICS PARK PVT LTD FOR RAS.38 ,19,204. IN THE SAID DOCUMENT, IT WAS STATED THAT PENDING ACCOUNT WITH S KS WITH A COLUMN RECEIVABLE. FROM THE ABOVE DOCUMENT, THE AO CAME T O THE CONCLUSION THAT THE ASSESSEE HAS BOOKED BOGUS EXPENDITURE IN THE HANDS OF TWO COMPANIES AND RECEIVED CASH BACK FROM THE PARTIES FOR HIS PERSONA L USE. THIS FACT WAS FURTHER STRENGTHENED BY THE STATEMENT OF SHRI HITESH LAKHAN I AND SHRI VASUDEV THAKKAR RECORDED DURING THE COURSE OF SEARCH PROCEEDINGS WH ERE THEY HAVE ACCEPTED THAT THEY INVOLVED IN ISSUING ACCOMMODATION BILLS T O THE GROUP. BASED ON THESE FACTS, THE AO CAME TO THE CONCLUSION THAT THE ASSES SEE ACTED IN A FIDUCIARY CAPACITY AS HEAD OF GROUP AND HENCE, THE ULTIMATE B ENEFICIARY OF THOSE TRANSACTIONS IS THE ASSESSEE, THEREFORE, HELD THAT THE SAME REPRESENTS UNDISCLOSED INCOME OF THE ASSESSEE FOR THE RELEVANT PERIOD. 17 ITA 4019/MUM/2014 12. THE DOCUMENT FOUND DURING THE COURSE OF SEARCH NOWHERE STATES THAT M/S RIKHAV BROKERS PVT LTD HAS ISSUED BILLS IN THE NAME OF THE ASSESSEE. EVEN THIS IS NOT THE CASE OF THE LOWER AUTHORITIES. EVE N THE STATEMENT RECORDED FROM THE PARTIES WITH WHOM THE ASSESSEE TRANSACTED, ONLY STATED THAT THEY HAVE NOT TRANSACTED WITH THE ASSESSEE. THEY ALL ALONG, IN T HEIR STATEMENTS CATEGORICALLY STATED THAT THEY HAVE ISSUED BILLS IN THE NAME OF M /S SEALAND PORTS PVT LTD. EVEN THE ASSESSEE HAS ADMITTED TAKING BILLS IN THE NAME OF ABOVE TWO COMPANIES. THE ASSESSEE HAS EXPLAINED THE REASONS FOR TAKING BILLS. THE ASSESSEE ALSO EXPLAINED THE TREATEMENT OF SAID EXP ENDITURE IN THE BOOKS OF TWO COMPANIES. ACCORDING TO THE ASSESSEE, BILLS TAKEN FROM M/S RIKHAV BROKERS PVT LTD HAS BEEN TREATED AS WORK IN PROGRESS IN THE BOO KS OF M/S SEALAND PORTS PVT LTD AND M/S AVASH LOGISTICS PARK PVT LTD. IN FACT, THE AO HAS ACCEPTED THE ABOVE SUBMISSIONS OF THE ASSESSEE. THE AO MADE ADD ITION IN THE HANDS OF THE ASSESSEE ONLY ON THE BASIS OF DOCUMENT FOUND IN THE POSSESSION OF THE ASSESSEE AND ALSO ON GROUND THAT THE ASSESSEE IS THE ULTIMAT E BENEFICIARY OF THE TRANSACTIONS. IF WE EXAMINE THE DOCUMENTS FOUND DU RING THE COURSE OF SEARCH ALONGWITH STATEMENT GIVEN BY THE PARTIES DURING INV ESTIGATION, IT IS VERY CLEAR THAT THE ABOVE TWO BILLS OBTAINED FROM M/S RIKHAV B ROKERS PVT LTD PVT LTD HAS NOTHING TO DO WITH THE ASSESSEE. IN THE DOCUMENT F OUND DURING THE COURSE OF SEARCH NOWHERE STATES THAT THE ASSESSEE HAS RECEIVE D CASH BACK FROM THE 18 ITA 4019/MUM/2014 PARTIES. EVEN IN THE STATEMENT RECORDED FROM THE P ARTIES, NOWHERE IT WAS STATED THAT THE ASSESSEE WAS THE BENEFICIARY OF CAS H RETURNED BY THE PARITIES. UNLESS THERE IS FURTHER EVIDENCE IN THE POSSESSION OF THE AO TO COME TO THE CONCLUSION THAT THE ASSESSEE IS THE ULTIMATE BENEFI CIARY OF TRANSACTIONS ENTERED INTO BY THE ABOVE TWO COMPANIES WITH M/S RIKHAV BRO KERS PVT LTD PVT LTD, NO ADDITION COULD BE MADE ONLY ON THE BASIS OF A PIECE OF PAPER FOUND DURING THE COURSE OF SEARCH, WHICH NEITHER STATED THAT THE ASS ESSEE HAS RECEIVED CASH BACK FROM THE PARTIES NOR THE PARTIES HAVE ADMITTED THAT THEY HAVE RETURNED CASH TO THE ASSESSEE. WHEN THE DOCUMENT IN THE POSSESSION OF THE AO CLEARLY PROVES THAT THE SAID DOCUMENT PERTAINS TO A COMPANY AND CO NTENTS THEREIN ARE NOT BELONGING TO THE ASSESSEE, AT THE BEST, THE AO COUL D HAVE PROCEEDED AGAINST THOSE COMPANIES, BUT NOT AGAINST THE ASSESSEE. THE REFORE, WE ARE OF THE CONSIDERED VIEW THAT THE ADDITION MADE BY THE AO IS NOTHING BUT ON SUSPICION WHICH IS NOT BASED ON ANY EVIDENCE. THE SUSPICION, WHATSOEVER STRONG MAY BE, BUT IT CANNOT LEAD TO A CONCLUSION THAT IT LEADS TO AN EVIDENCE TO MAKE AN ADDITION. THE LD.CIT(A), WITHOUT APPRECIATING THE FACT, HAS SIMPLY UPHELD ADDITION MADE BY THE AO ONLY ON THE BASIS OF CIRCUM STANTIAL EVIDENCE COUPLED WITH THEORY OF HUMAN PROBABILITIES TO CONFIRM ADDIT ION MADE BY THE AO. HENCE, WE REVERSE THE FINDING OF LD.CIT(A) AND DIRE CT THE AO TO DELETE ADDITION 19 ITA 4019/MUM/2014 MADE TOWARDS TRANSACTIONS WITH M/S RIKHAV BROKERS P VT LTD PVT LTD BY TWO COMPANIES IN THE HANDS OF THE ASSESSEE. 13. COMING TO THE ENHANCEMENT OF INCOME BY THE LD.C IT(A). THE LD.CIT(A) HAS ENHANCED INCOME TO THE EXTENT OF RS.4.90 CRORES ON THE BASIS OF REMAND REPORT OF THE AO, WHERE THE AO STATED THAT CERTAIN PAYMENTS MADE TO M/S PURVI ESTATES AND M/S KINJAL DEVELOPERS ARE NOT INC LUDED IN THE AMOUNT OF RS.153 CRORE DISCLOSURE MADE BY THE ASSESSEE GROUP TOWARDS BOOKING BOGUS EXPENDITURE. THE LD.CIT(A) HAS MADE ADDITION OF RS .2 CRORES TOWARDS PAYMENT MADE BY M/S SEALAND PORTS PVT LTD TO M/S PURVI EST ATES. THE LD.CIT(A) ALSO MADE ADDITION OF RS.2.90 CRORES TOWARDS PAYMENT MAD E BY M/S AVASHI LOGISTICS PARK PVT LTD & M/S KINJAL DEVELOPERS. AC CORDING TO THE LD.CIT(A), THE ABOVE TWO PAYMENTS ARE NOT INCLUDED IN THE LIST OF PAYMENTS CONSIDERED BY THE DEPARTMENT. THE LD.CIT(A) HAS TAKEN NOTE OF THE RE MAND REPORT OF THE AO. IN TURN, THE AO HAS TAKEN COGNIZANCE OF STATEMENT OF S HRI VASUDEV THAKKAR RECORDED U/S 131 BY ADIT (INV). THE LD.CIT(A) FURT HER OBSERVED THAT THE ASSESSEE IS IN THE HABIT OF OBTAINING ACCOMMODATION BILLS SO AS TO SIPHON OFF MONEY FOR HIS PERSONAL USE. THE CONCLUSION DRAWN B Y THE LD.CIT(A) IS BASED ON THE STATEMENT RECORDED DURING THE COURSE OF SEARCH FROM THE PARTIES. THEREFORE, HE OPINED THAT THE ABOVE TWO PAYMENTS AL SO BELONGED TO THE 20 ITA 4019/MUM/2014 ASSESSEE AND THE ASSESSEE IS THE ULTIMATE BENEFICIA RY OF TRANSACTIONS WITH M/S PURVI ESTATES AND M/S KINJAL DEVELOPERS. 14. IT IS THE CLAIM OF THE ASSESSEE BEFORE THE LD.C IT(A) THAT THE POWERS OF CIT(A) ARE LIMITED TO THE ISSUE BEFORE HIM AND ALSO THE SUBJECT MATTER OF DELIBERATIONS DURING ASSESSMENT PROCEEDINGS INCLUDI NG ENHANCEMENT OF INCOME, BUT SUCH POWERS ARE CONFINED ONLY TO THE IS SUE BEFORE HIM BUT NOT TO THE NEW ISSUES. THE CIT(A) CANNOT INTRODUCE A NEW SOURCE OF INCOME TO MAKE ENHANCEMENT OF ASSESSMENT. THE ASSESSEE FURTHER CO NTENDED THAT THE ABOVE TRANSACTIONS BETWEEN M/S AVASHI LOGISTICS PARK PVT LTD WITH KINAL DEVELOPERS FOR RS.2.90 CRORES AND M/S SEALAND PORT PVT LTD WIT H M/S PURVI ESTATES FOR RS.2 CRORES IS NOT BELONGING TO HIM. THE ABOVE PAYMENTS ARE MADE FROM THE BANK ACCOUNTS OF ABOVE TWO COMPANIES AND ACCOUNTED IN TH E BOOKS OF COMPANIES. THE ASSESSEE FURTHER CONTENDED THAT MERELY FOR THE REASON THAT CERTAIN DOCUMENT IS FOUND DURING THE COURSE OF SEARCH WHICH WAS FOUND IN THE POSSESSION OF THE ASSESSEE, AN ADVERSE INFERENCE CA NNOT BE DRAWN ABOUT UNDISCLOSED INCOME UNLESS THERE IS STRONG EVIDENCE IN THE POSSESSION OF THE AO WHICH PROVES THAT IT REPRESENTS UNDISCLOSED INCOME OF THE ASSESSEE. THE ASSESSEE HAS EXPLAINED THE ABOVE IN THE HANDS OF M/ S AVASHI LOGISTICS PARK PVT LTD AND M/S SEALAND PORT PVT LTD AND FILED COMPLETE DETAILS TO THE AO DURING ASSESSMENT PROCEEDINGS OF THOSE COMPANIES, WHERE TH E AO HAS ACCEPTED THE 21 ITA 4019/MUM/2014 PAYMENTS. FURTHER, THE SAID PAYMENTS OF RS.2.90 CR ORES AND RS.2 CRORES FORM PART OF THE TOTAL SUM OF RS.153 CRORES ALREADY CONS IDERED IN ALL THE ASSESSMENTS COMPLETED U/S 143(3) R.W.S. 153A. THEREFORE, FURTH ER ADDITION MADE ONLY ON THE BASIS OF REMAND REPORT, WHERE THE AO HAS PICKED UP CERTAIN PAYMENTS FROM THE BANK ACCOUNT OF COMPANIES TO ARGUE THAT THE ABO VE PAYMENTS ARE NOT PART OF THE SUM OF RS.153 CRORES DISCLOSED DURING THE CO URSE OF SEARCH. 15. HAVING HEARD ARGUMENTS OF BOTH THE SIDES AND CO NSIDERED MATERIAL ON RECORD, WE FIND THAT THE ENHANCEMENT MADE BY THE LD .CIT(A) IS MERELY ON THE BASIS OF CONJECTURE AND SURMISES WITHOUT ANY EVIDEN CE, DOCUMENTS OR STATEMENT TO PROVE THAT THE SAID PAYMENTS REPRESENT UNDISCLOSED INCOME OF THE ASSESSEE. THE LD.CIT(A) WENT ON A WRONG PREMIS E THAT WHATEVER PAYMENT MADE BY COMPANIES IS PERTAINING TO THE ASSESSEE AND ASSESSEE IS THE BENEFICIARY OF TRANSACTIONS BETWEEN THOSE COMPANIES AND THE PARTIES INVOLVED IN PROVIDING ENTRIES. THE PRIMARY ISSUE WHETHER TH E DOCUMENT FOUND DURING THE COURSE OF SEARCH IN THE PREMISES OF THE ASSESSE E REALLY THROWS LIGHT ON THE ASPECT OF UNDISCLOSED INCOME OF THE ASSESSEE OR NOT HAS BEEN DEALT IN DETAIL IN THE PRECEDING PARAGRAPHS WHILE DISCUSSING THE ADDIT ION MADE BY THE AO TOWARDS PAYMENT MADE BY TWO COMPANIES TO M/S RIKHAV BROKERS PVT LTD PVT LTD DURING THE COURSE OF SEARCH WHICH HAS NEITHER S TATED THAT THE ASSESSEE HAS RECEIVED CASH BACK FROM THE ABOVE PARTIES NOR THE P AYMENTS HAVE BEEN MADE 22 ITA 4019/MUM/2014 BY THE ASSESSEE FROM HIS BANK ACCOUNT. WHEN THE SA ID DOCUMENT DOES NOT BELONG TO THE ASSESSEE AND THE CONTENTS RECORDED IN THE SAID DOCUMENT HAS BEEN CONSIDERED IN THE BOOKS OF ABOVE TWO COMPANIES , THE ADDITION CANNOT BE MADE IN THE HANDS OF THE ASSESSEE. SIMILARLY, IN R ESPECT OF ENHANCEMENT MADE BY THE LD.CIT(A), SIMILAR FINDINGS HOLD GOOD. IN T HIS CASE, THE LD.CIT(A) WENT ON THE WRONG PREMISES THAT WHATEVER TRANSACTIONS BETWE EN THE COMPANIES AND THE PARTIES, THE ULTIMATE BENEFICIARY IS ASSESSEE B ECAUSE THE ASSESSEE HAS ACTED IN A FIDUCIARY CAPACITY AS HEAD OF THE GROUP, BUT S UCH FINDING RECORDED BY THE LD.CIT(A) IS NOT BASED ON ANY EVIDENCES. UNLESS, T HE LD.CIT(A) HAS BROUGHT SOME MORE EVIDENCE TO PROVE THAT THE TRANSACTIONS B ETWEEN ABOVE TWO COMPANIES AND THE PARTIES REALLY REPRESENT UNDISCLO SED INCOME OF THE ASSESSEE, MERELY ON THE BASIS OF A PIECE OF PAPER FOUND DURIN G THE COURSE OF SEARCH COUPLED WITH STATEMENT RECORDED FROM THE PARTIES, A DDITION CANNOT BE SUSTAINED IN THE HANDS OF THE ASSESSEE. SUSPICION, HOWEVER STRONG, MAY NOT LEAD TO A CONCLUSION THAT THE AUTHORITIES HAVE EVID ENCE AGAINST THE ASSESSEE. IN THIS CASE, THE ENHANCEMENT MADE BY THE LD.CIT(A) IS NOTHING BUT AN ATTEMPT TO INFER AGAINST THE ASSESSEE WITHOUT THERE BEING ANY EVIDENCE THAT THE TRANSACTIONS BETWEEN COMPANIES AND THE PARTIES IS I N FACT BELONGING TO THE ASSESSEE AND THE ASSESSEE IS AN ULTIMATE BENEFICIAR Y OF THE SAID TRANSACTION. THIS FACT HAS BEEN STRENGTHENED BY THE DECISION OF HONBLE JURISDICTIONAL HIGH 23 ITA 4019/MUM/2014 COURT IN ASSESSEES OWN CASE FOR AY 2009-10 IN WRIT PETITION NO.3059 OF 2015 WHERE THE AO SOUGHT TO REOPEN THE ASSESSMENT ON THE BASIS OF REMAND REPORT OF THE AO TO TAX CERTAIN PAYMENTS PERTAINING TO AY 2009-10. THE ASSESSEE HAS CHALLENGED RE-ASSESSMENT NOTICE ISSUED BY THE AO IN WRIT JURISDICTION. THE HONBLE HIGH COURT WHILE QUASHING RE-ASSESSMENT NOT ICE ISSUED BY THE AO HELD THAT THE AO HAS ARRIVED AT A CONCLUSION THAT INCOME CHARGEABLE TO TAX HAD BEEN ESCAPED ASSESSMENT ON THE BASIS OF CHEQUES ISSUED T O SHRI VASUDEV THAKKAR AND SHRI NISHANT THAKKAR WHERE, IN TURN, PAID TO TH E PETITIONER, IN CASH. THE COURT FURTHER OBSERVED THAT THIS CONCLUSION WAS ARR IVED AT WITHOUT INDICATING ANY BASIS FOR THE SAME. IN THIS CASE ALSO, THE CIT (A) HAS ENHANCED ASSESSMENT WITHOUT THERE BEING ANY MATERIAL TO PROVE THAT PAYM ENTS MADE BY M/S AVASHI LOGISTICS PARK PVT LTD TO M/S PURVI ESTATES AND PAY MENT MADE BY M/S SEALAND PORTS PVT LTD TO M/S KINJAL DEVELOPERS REPRESENT U NDISCLOSED INCOME OF THE ASSESSEE. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE LD.CIT(A) WAS ERRED IN MAKING ENHANCEMENT OF RS.4.90 CRORES TOWAR DS PAYMENT MADE BY TWO COMPANIES TO SHRI VASUDEV THAKKAR AS UNDISCLOSED IN COME OF THE ASSESSEE. 16. COMING TO THE ALTERNATIVE ARGUMENT ADVANCED BY THE LD.AR FOR THE ASSESSEE. THE LD.AR FOR THE ASSESSEE HAS ADVANCED AN ALTERNATIVE ARGUMENT IN THE LIGHT OF DECISION OF HONBLE SUPREME COURT IN T HE CASE OF CIT VS SHAPOORJI PALLONJI MISTRY (SUPRA). WE HAVE CONSIDERED THE CA SE LAW CITED BY THE LD.AR IN 24 ITA 4019/MUM/2014 THE LIGHT OF FACTS OF ASSESSEES CASE. THE HONBLE SUPREME COURT IN THE LIGHT OF PROVISIONS OF SECTION 251 OF THE INCOME-TAX ACT, 19 61 CORRESPONDING TO SECTION 31(3) OF THE INCOME-TAX ACT, 1922 HELD THAT IT WOUL D NOT BE OPEN TO AAC TO INTRODUCE IN ASSESSING NEW SOURCE, AS HIS POWER OF ENHANCEMENT IS RESTRICTED ONLY TO INCOME WHICH WAS SUBJECT MATTER OF CONSIDER ATION FOR PURPOSE OF ASSESSMENT BY ITO. THIS LEGAL PROPOSITION IS FURTH ER STRENGTHENED BY THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CI T VS RAI BAHADUR (1967) 66 ITR 443 (SC) WHERE IT WAS HELD THAT IT IS NOT OPEN TO THE AAC TO TRAVEL OUTSIDE THE RECORD, IE. THE RETURN MADE BY THE ASSESSEE OR THE ASSESSMENT ORDER OF THE INCOME-TAX OFFICER WITH A VIEW TO FIND OUT NEW SOUR CE OF INCOME AND THE POWER OF ENHANCEMENT U/S 31(3) OF THE ACT IS RESTRICTED T O THE SOURCE OF INCOME WHICH HAVE BEEN THE SUBJECT MATTER OF CONSIDERATION BY TH E INCOME-TAX OFFICER FROM THE POINT OF VIEW OF TAXABILITY. THE HONBLE BOMBA Y HIGH COURT IN THE CASE OF LOKASATHA TOLARAM VS CIT (1986) 161 ITR 82(BOM) HEL D THAT THE POWERS OF THE APPELLATE AUTHORITY IS LIMITED TO THE ISSUE IN QUES TION BEFORE HIM WHICH WAS SUBJECT MATTER OF DELIBERATIONS BY THE AO DURING AS SESSMENT PROCEEDINGS. THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS SARD AR LAL & CO (2001) 251 ITR 864 HELD THAT WHENEVER QUESTION OF TAXABILITY OF IN COME FROM A NEW SOURCE OF INCOME IS CONCERNED, WHICH HAD NOT BEEN CONSIDERED BY THE AO, JURISDICTION TO DEAL WITH THE SAME IN APPROPRIATE CASES MAY BE TO D EAL WITH SECTIONS 147 / 148 25 ITA 4019/MUM/2014 AND 263, IF REQUISITE CONDITIONS ARE FULFILLED AND IT IS INCONCEIVABLE THAT IN PRESENCE OF SUCH SPECIFIC PROVISIONS, A POWER IS AV AILABLE TO FIRST APPELLATE AUTHORITY. THE HONBLE RAJASTHAN HIGH COURT IN THE CASE OF CIT VS ASSOCIATED GARMENT MAKERS (1992) 197 ITR 350 HELD THAT A PERUS AL OF SECTIONS 246 TO 251 OF THE ACT MAKES IT CLEAR THAT ANY QUESTION ARISING OUT OF THE ENHANCEMENT ORDERS IN AN APPEAL BY THE ASSESSEE CAN BE POSSIBLE AND WIDE POWERS ARE GIVEN TO THE APPELLATE AUTHORITY, BUT THESE POWERS ARE CI RCUMSCRIBED BY THE ASSESSMENT ORDER IN THE MATTERS ARISING THERETO OR A MATTER ARISING OUT OF THE PROCEEDINGS. EVEN THE APPELLATE AUTHORITY HAVE SUO MOTO POWER TO CONSIDER THE QUESTION ARISING THERETO BUT THERE IS NO PROVIS ION TO GO BEYOND THE MATTER ARISING OUT OF THE PROCEEDINGS BEFORE THE ASSESSING AUTHORITY, MORE PARTICULARLY, AS SEPARATE PROVISIONS FOR THAT ARE MADE IN THE ACT . IN THIS CASE, THE CIT(A) HAS ENHANCED THE ASSESSMENT BY INTRODUCING A NEW SOURCE OF INCOME WHICH WAS NOT AT ALL A SUBJECT MATTER OF ASSESSMENT BY THE AO . THE CIT(A) HAS BROUGHT TO TAX CERTAIN PAYMENTS MADE BY TWO COMPANIES TO CERTA IN PARTIES ON THE WRONG PREMISES THAT THE ASSESSEE IS THE ULTIMATE BENEFICI ARY OF THE TRANSACTIONS BETWEEN THE COMPANIES AND THE PARTIES WITHOUT THERE BEING ANY MATERIAL TO PROVE THAT THE ASSESSEE HAS RECEIVED CASH BACK FROM THE PARTIES FOR HIS PERSONAL USE. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE LD.CIT(A) WAS 26 ITA 4019/MUM/2014 ERRED IN ENHANCING THE INCOME OF THE ASSESSEE BY RS .4.90 CRORES. HENCE, WE DELETE THE ENHANCEMENT MADE BY THE LD.CIT(A). 17. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 01 -02-2019 . SD/- SD/- (PAWAN SINGH) (G MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT : 01 ST FEBRUARY, 2019 PK/- COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR /TRUE COPY/ BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI 27 ITA 4019/MUM/2014 DATE INITIAL 1. DRAFT DICTATED ON 28.01 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 30.01 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. 5. APPROVED DRAFT COMES TO THE SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 7. FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER. 11. DRAFT DICTATION SHEETS ARE ATTACHED SR.PS