Siva Electronics (India) Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 4262/DEL/2010

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87009 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 30-12-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 16-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R R KUMAR
• Assessee Lawyers: AJAY WAD HAWA
• Keywords: Unexplained cash credit; Opportunity of being heard
• Section: 143(3); 133(6); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G NEW DELHI) BEFORE SHRI I.C. SUDHIR AND SHRI B.C. MEENA ITA NO. 4657/DEL/2013 ASSESSMENT YEAR: 2006 -07 SIVA ELECTRONICS (INDIA) PVT. LTD., VS. DEPUTY CIT, 15-A-30, WEA, KAROL BAGH, CIRCLE-8(1), NEW DELHI. NEW DELHI. (PAN: AABCS5444E) (APPELLANT) (RESPONDENT) ITA NO. 4262/DEL/2010 ASSESSMENT YEAR: 2007 -08 ITA NO.2223/DEL/2012 ASSESSMENT YEAR: 2008- 09 SIVA ELECTRONICS (INDIA) PVT. LTD., VS. INCOME-TAX OFFICER, 15-A-30, WEA, KAROL BAGH, CIRCLE-8(4), NEW DELHI. NEW DELHI. (PAN: AABCS5444E) (PAN: AABCS5444E) (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI AJAY WAD HAWA, CA RESPONDENT BY: SHRI BRR KUMAR, SR. DR DATE OF HEARING : 30.12.2014 DATE OF PRONOUNCEMENT: 17.03.2015 ORDER PER I.C. SUDHIR: JUDICIAL MEMBER IN APPEALS PREFERRED BY THE ASSESSEE FOR THE ASSESS MENT YEARS 2006-07 AND 2007-08, THE COMMON GRIEVANCE AGAINST THE FIRST APPELLATE ORDER IS THAT THE LEARNED CIT(APPEALS) DID NOT AFFORD THE ADEQUAT E OPPORTUNITY OF BEING HEARD TO THE ASSESSEE DESPITE DIRECTION OF THE ITAT VIDE ITS ORDER DATED 2 29.04.2010 IN ITA NO. 3645/DEL/2009 IN ASSESSMENT Y EAR 2006-07 AND SIMILAR WAS THE ACTION OF THE LEARNED CIT(APPEALS) FOR THE ASSESSMENT YEAR 2007-08. 2. IN SUPPORT OF THE ABOVE COMMON GRIEVANCE, THE LE ARNED AR SUBMITTED THAT DURING THE APPELLATE PROCEEDINGS FOR THE ASSES SMENT YEAR 2006-07, THERE WAS GENUINE DIFFICULTY IN REPRESENTING THE CASE OF THE ASSESSEE ON THE DATES FIXED FOR HEARING BEFORE THE LEARNED CIT(APPEALS) A ND WITHOUT APPRECIATING THE DIFFICULTY, THE LEARNED CIT(APPEALS) REFUSED TH E REQUESTED ADJOURNMENT ON THE GIVEN DATE. EVEN ON THE DATE WHEN THE LEARNE D CIT(APPEALS) OPTED TO PROCEED EX PARTE, THE REPRESENTATIVE OF THE ASSESSE E WAITED LONG FOR HIS TURN OF HEARING BEFORE THE LEARNED CIT(APPEALS) AND SINC E THE REPRESENTATIVE OF THE ASSESSEE HAD TO ATTEND THE OTHER FIRST APPELLAT E AUTHORITY, HENCE, HE COULD NOT WAIT ANY LONGER. THE LEARNED CIT(APPEALS) INSTE AD OF ADJOURNING THE MATTER, PROCEEDED EX PARTE AND HAS REPEATED THE ADD ITIONS MADE IN THE FIRST ROUND OF FIRST APPEAL. THE LEARNED AR SUBMITTED THA T AFTER LEARNING THAT THE LEARNED CIT(APPEALS) WAS RELUCTANT TO GIVE ANY ADJO URNMENT AND THAT HE WAS DETERMINED TO PASS AN ORDER AGAINST THE ASSESSE E BECAUSE OF SOME UNFORTUNATE PAST INCIDENCE, THE ASSESSEE A 87 YEARS OLD PERSON HAD MOVED APPLICATION BEFORE THE CHIEF COMMISSIONER OF INCOME -TAX-III, CENTRAL REVENUE BUILDING, NEW DELHI ON 21.2.2011 FOR TRANSF ER OF THE APPEALS TO 3 SOME OTHER FIRST APPELLATE AUTHORITY TO PROTECT THE INTEREST OF JUSTICE. THE LEARNED AR DREW OUR ATTENTION TO THAT LETTER, A COP Y THEREOF HAS BEEN MADE AVAILABLE IN THE PAPER BOOK FILED BY THE ASSESSEE A T PAGE NO. 3 AND 4 OF THE PAPER BOOK ALONG WITH AN AFFIDAVIT. HE ALSO REFERRE D PAGE NOS. 7 TO 10 OF THE PAPER BOOK WHICH ARE COPIES OF APPLICATION FOR ADJO URNMENT MOVED BEFORE THE LEARNED CIT(APPEALS) SPECIFYING SUFFICIENT REAS ONS FOR THE SAME. THE LEARNED AR SUBMITTED FURTHER THAT THE ASSESSEE HAS GOT GOOD CASE AND IF THE FIRST APPEAL WOULD HAVE BEEN HEARD AND DECIDED CONS IDERING THE MATERIALS AVAILABLE ON RECORD, THE ADDITIONS IN QUESTION WOUL D HAVE BEEN DELETED. SIMILAR APPROACH WAS ADOPTED BY THE FIRST APPELLATE AUTHORITY DURING THE ASSESSMENT YEAR 2007-08 AS WHEN THE HEARING WAS FIN ALLY FIXED ON 09.08.2010, THE LEARNED AR WAITED LONG FOR HIS TURN OUT OF THE OFFICE OF THE LEARNED CIT(APPEALS) AND THEREAFTER HAD TO LEAVE TO ATTEND OTHER HEARING. THE ORDER WAS PASSED EX PARTE ON 18.08.2010. 3. THE OTHER COMMON GRIEVANCE OF THE ASSESSEE IN AL L THE THREE APPEALS IS THE ADDITION MADE UNDER SEC. 68 OF THE ACT ON ACCOU NT OF UNEXPLAINED CASH CREDITS WHICH AS PER THE ASSESSEE ARE ACTUALLY THE SALES MADE IN CASH AND THUS WOULD NOT HAVE BEEN ADDED UNDER SEC. 68 OF THE ACT KEEPING IN VIEW OF THE NATURE OF THE BUSINESS OF ASSESSEE. THE LEARNED AR THAT IN RESPONSE TO THE 4 QUERY RAISED BY THE ASSESSING OFFICER IN THIS REGAR D THE ASSESSEE HAD SUBMITTED AS TO WHY CASH DEPOSITS IN BANK ACCOUNT B E NOT TREATED AS UNEXPLAINED CASH CREDITS UNDER SEC. 68 OF THE ACT. IN SUPPORT, THE ASSESSEE HAD FILED DETAILS OF CASH SALES WITH NAME AND ADDRE SS OF PARTIES, DETAILS OF EXPENSES ABOVE RS.50,000 AND BOOKS OF ACCOUNT PRODU CED ALONG WITH CASH SALES BILLS. 4. BESIDES ABOVE, IN THE ASSESSMENT YEAR 2006-07, T HE LEARNED CIT(APPEALS) HAS UPHELD THE ADDITION OF RS.1,16,077 ON ACCOUNT OF DISALLOWANCE MADE TOWARDS COMMISSION, RS.1,97,963 I NCURRED ON ADVERTISEMENT AND PUBLICITY. AGAIN IN THE ASSESSME NT YEAR 2008-09, THE LEARNED CIT(APPEALS) HAS UPHELD ADDITION OF RS.1,00 ,000 MADE ON ACCOUNT OF THE DISALLOWANCE OF THE CLAIMED DONATION. 5. THE LEARNED DR ON THE OTHER HAND SUBMITTED THAT MORE THAN SUFFICIENT OPPORTUNITIES WERE GRANTED BY THE LEARNED CIT(APPEA LS) FOR THE ASSESSMENT YEAR 2006-07 WHILE DECIDING THE FIRST APPEAL IN COM PLIANCE OF THE ORDERS OF THE ITAT. THE ASSESSEE, HOWEVER, ON ONE PRETEXT OR THE OTHER DID NOT BOTHER TO PRESENT ITS CASE BEFORE THE LEARNED CIT(APPEALS) IN A PROPER MANNER. THUS, THE LEARNED CIT(APPEALS) WAS HAVING NO OPTIO N BUT TO DECIDE THE FIRST APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. SIMILAR WAS THE POSITION IN THE APPEAL FOR THE ASSESSMENT YEAR 2007 -08. 5 6. HAVING GONE THROUGH THE ORDERS OF THE AUTHORITIE S BELOW AS WELL AS MATERIAL AVAILABLE ON RECORD, WE FIND THAT IN THE A SSESSMENT YEAR 2006-07, THE MATTER WAS REMANDED BACK BY THE ITAT TO THE FIR ST APPELLATE AUTHORITY ON THE BASIS THAT NOTICE FOR LAST HEARING I.E. 07.08.2 009 ISSUED BY THE FIRST APPELLATE AUTHORITY WAS NOT RECEIVED BY THE ASSESSE E WHICH RESULTED IN PASSING OF EX PARTE ORDER IN THE FIRST APPEAL. THE LEARNED CIT(APPEALS) IN COMPLIANCE HAS DECIDED THE FIRST APPEAL EX PARTE SI NCE DESPITE OPPORTUNITIES AFFORDED TO THE ASSESSEE, THE ASSESSEE WAS TAKING A DJOURNMENTS ON ONE PRETEXT OR THE OTHER . THE SUBMISSION OF THE LEARNE D AR FOR SEEKING THE ADJOURNMENT BEFORE THE LEARNED CIT(APPEALS) IS THAT THE ASSESSEE DUE TO SOME PAST UNFORTUNATE INCIDENCE HAD SOUGHT THE TRAN SFER OF THE FIRST APPEAL FROM ANY OTHER FIRST APPELLATE AUTHORITY VIDE LETTE R DATED 21.02.2011 TO THE LEARNED CHIEF COMMISSIONER OF INCOME-TAX-III, NEW D ELHI. A COPY OF THIS LETTER HAS BEEN MADE AVAILABLE AT PAGE NOS. 1 AND 2 OF THE PAPER BOOK. BEFORE THIS DATE, THE ASSESSEE HAD ALSO MOVED APPLI CATIONS BEFORE THE LEARNED CIT(APPEALS) FOR ADJOURNMENT DUE TO SOME SU FFICIENT REASONS. LASTLY ON 04.08.2011 WHICH WAS FIXED FOR FINAL HEAR ING, ASSESSEE HAD SOUGHT ADJOURNMENT GIVING THE REFERENCE OF LETTER DATED 21 .02.2011 SEEKING TRANSFER OF THE APPEAL TO SOME OTHER FIRST APPELLATE AUTHORI TY, WHICH WAS REJECTED BY 6 THE LEARNED CIT(APPEALS) AND ORDER WAS PASSED ON 05 .08.2011. COPIES OF THESE LETTERS HAVE BEEN MADE AVAILABLE AT PAGE NO. 7 TO 10 OF THE PAPER BOOK. THE LEARNED CIT(APPEALS) HAS THUS ADOPTED THE FIRST APPELLATE ORDER ON THE ISSUES WHICH WAS PASSED IN THE FIRST ROUND ON 11.08 .2009. THIS FIRST APPELLATE ORDER WAS THE SUBJECT MATTER OF APPEAL PR EFERRED BY THE ASSESSEE BEFORE THE ITAT, WHICH WAS SET ASIDE AND REMANDED B ACK TO THE FILE OF THE LEARNED CIT(APPEALS) FOR FRESH CONSIDERATION. 7. THERE IS NO DISPUTE THAT THE LEARNED CIT(APPEALS ) HAS AFFORDED SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO PRESENT I TS CASE AND FILE EVIDENCE IN SUPPORT TO JUSTIFY THE CLAIMS BUT AT THE SAME TIME, THE ASSESSEE HAS ALSO SHOWN SOME REASONS FOR SEEKING ADJOURNMENTS. 8. SO FAR AS ADDITIONS SUSTAINED BY THE LEARNED CIT (APPEALS) IN THE ASSESSMENT YEAR 2006-07 ARE CONCERNED, THE REASON MENTIONED BY THE LEARNED CIT(APPEALS) WAS THAT DESPITE OPPORTUNITY T HE ASSESSEE DID NOT FILE EVIDENCE IN SUPPORT OF REQUEST FOR DELETION OF THE ADDITION OF RS.60,60,577 U/S. 68 ON ACCOUNT OF UNEXPLAINED CASH CREDIT, DISA LLOWANCE OF RS.1,16,077 MADE ON ACCOUNT OF PAYMENT OF COMMISSION, RS.1,97,9 67 ON ACCOUNT OF ADVERTISEMENT AND PUBLICITY EXPENSES. 7 9. OPPOSING THE ADDITION OF RS.60,60,577 MADE ON AC COUNT OF UNEXPLAINED CREDIT, THE CONTENTION OF THE LEARNED A R REMAINED THAT THE PROVISIONS OF SEC. 68 OF THE ACT ARE NOT APPLICABLE SINCE THE PAYMENT IN QUESTION MOSTLY IN CASH WERE MADE AGAINST THE SALES MADE BY THE ASSESSEE AND DETAILS OF 206 PARTIES WHO HAD MADE PURCHASES F ROM THE ASSESSEE WERE SUBMITTED TO THE ASSESSING OFFICER VIDE LETTER DATE D 04.09.2008. NEITHER THE ASSESSING OFFICER NOR THE LEARNED CIT(APPEALS) HAS EXAMINED THE SAID PARTIES BEFORE MAKING AND UPHOLDING THE ADDITION. HE SUBMITTED FURTHER THAT IN THE ASSESSMENT YEARS 2009-10 AND 2010-11 IN THE ASSESSMENTS FRAMED UNDER SEC. 143(3) OF THE ACT, NO SUCH ADDITION UNDE R SEC. 68 HAS BEEN MADE. IN SUPPORT HE FILED COPIES OF THOSE ASSESSMENT ORDE RS FOR THE ASSESSMENT YEARS 2009-10 AND 2010-11. HE SUBMITTED FURTHER THA T AN IDENTICAL ISSUE HAS BEEN RAISED IN THE APPEALS PREFERRED BY THE ASSESSE E FOR THE ASSESSMENT YEARS 2007-08 AND 2008-09. HE REFERRED THE DECISION OF HO N'BLE SUPREME COURT IN THE CASE OF CIT VS. EXCEL INDUSTRIES LTD. (2013) 358 ITR 295 (S.C) HOLDING THAT ONCE THE REVENUE IN OTHER ASSESSMENT YEARS ACC EPTED THE ORDERS OF THE ITAT IN FAVOUR OF THE ASSESSEE AND DID NOT PURSUE T HE MATTER ANY FURTHER, THAT BEING SO, THE REVENUE CANNOT BE ALLOWED TO FLI P-FLOP ON THE ISSUE AND IT OUGHT LET THE MATTER REST RATHER THAN SPEND THE TAX PAYERS MONEY IN PERSONAL LITIGATION FOR THE SAKE OF IT. 8 10. SIMILAR ARGUMENTS HAD BEEN ADOPTED BY THE LEARN ED AR ON AN IDENTICAL ISSUE RAISED IN THE APPEALS FOR THE ASSES SMENT YEARS 2007-08 AND 2008-09. HE REITERATED THAT PROVISIONS UNDER SEC. 6 8 OF THE ACT ARE NOT APPLICABLE ON THE SALES MADE BY THE ASSESSEE TO THE PARTIES AND THUS HE IS NOT EXPECTED TO KEEP RECORDS OF THOSE PARTIES FOR FUTUR E REFERENCE. THE LEARNED AR SUBMITTED THAT THE GOODS SOLD ARE EXCISABLE AND REFERRED PAGE NO. 22 TO 101 OF THE PAPER BOOK FOR THE ASSESSMENT YEAR 2007- 08 WHEREIN COPIES OF LETTER DATED 18.8.2009 ALONG WITH SALES-TAX REGISTR ATION AND ASSESSMENT ORDER FOR LOCAL AND CENTRAL SALES-TAX FILED BEFORE THE AS SESSING OFFICER AND LETTER DATED 27.8.2009 ALONG WITH CASH SALES BILLS FILED B EFORE THE ASSESSING OFFICER HAVE BEEN MADE AVAILABLE. HE ALSO REFERRED PAGE NOS . 102 TO 119 OF THE PAPER BOOK, WHICH ARE COPIES OF LETTER DATED 31.8.2 009, 04.11.2009, 12.11.2009 FILED BEFORE THE ASSESSING OFFICER ALONG WITH DETAILS OF CENTRAL EXCISE DUTIES PAID, DETAILS OF RECASTING CLOSING ST OCK AND CLOSING STOCK OF SEMI-FINISHED GOODS IN THE PROCESS AT DIFFERENT STA GES. HE ALSO REFERRED PAGE NO. 120A OF THE PAPER BOOK WHICH IS REPLY DATED 28. 06.2010 OF THE ASSESSEE TO THE INTERIM REMAND REPORT OF THE ASSESSING OFFIC ER DATED 02.06.2010 FURNISHED BEFORE THE LEARNED CIT(APPEALS). AT PAGE NOS. 126 & 127 OF THE PAPER BOOK HAS BEEN PLACED THE COPY OF THE SAID REM AND REPORT DATED 9 02.06.2010. THE LEARNED AR REFERRED FURTHER THE PAG E NOS. 128 TO 149 OF THE PAPER BOOK I.E. COPIES OF LETTER DATED 22.04.20 10 AND 26.05.2010 TO THE ASSESSING OFFICER FURNISHING DETAILS OF PARTIES, CO MPLETE BANK STATEMENT AND COPY OF ACCOUNTS FROM 01.04.2006 TO 31.07.2007. AGA IN IN THE ASSESSMENT YEAR 2008-09, DETAILS OF CASH SALES WITH NAME AND A DDRESS OF THE PARTIES WERE FURNISHED BEFORE THE ASSESSING OFFICER, COPIES WHER EOF HAVE BEEN MADE AVAILABLE AT PAGE NOS. 3 TO 137 OF THE PAPER BOOK F OR THE ASSESSMENT YEAR 2008-09. THE LEARNED AR ALSO PLACED RELIANCE ON THE DECISION OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF R.B. JESSRAM FATE H CHAND VS. CIT (1970) -75 ITR 33 (BOM.), HOLDING THAT NONE-SHOWING OF ADDRESSES OF PURCHASERS IN THE CASE OF CASH TRANSACTIONS CANNOT BE A GROUND FOR REJECTION OF BOOKS OF ACCOUNT OF A SELLER-ASSESSEE. 11. LEARNED DR ON THE OTHER HAND PLACED RELIANCE O N THE ORDERS OF THE AUTHORITIES BELOW, DISCUSSED ABOVE. 12. IN THE ASSESSMENT YEAR 2006-07, WE FIND THAT TH E ASSESSING OFFICER HAS MENTIONED AT PAGE NO.2 PARA 2 OF THE ASSESSMENT ORD ER THAT THE ASSESSEE VIDE LETTER DATED 04.09.2008 HAD FURNISHED A LIST OF 206 PARTIES. HE HAS MENTIONED FURTHER THAT NOTICES UNDER SEC. 133(6) WERE SENT TO ALL THESE PARTIES, HOWEVER, NONE OF THEM MAKING CASH PURCHASES FROM THE ASSESSE E COMPANY CONFIRMED 10 THE ASSESSEES SUBMISSION. HE HAS ACCORDINGLY MADE THE ADDITION OF RS.60,60,577 UNDER SEC. 68 OF THE ACT ON ACCOUNT OF UNEXPLAINED CASH CREDITS. THE LEARNED CIT(APPEALS) UPHELD THE ADDITI ON SIMPLY FOLLOWING HIS EARLIER ORDER DATED 11.8.2009 ON THE BASIS THAT DES PITE OPPORTUNITIES THE ASSESSEE DID NOT FILE ANY DOCUMENTS OR EVIDENCE IN SUPPORT OF ITS CLAIM. 13. IN THE ASSESSMENT YEAR 2007-08, THE ASSESSING O FFICER HAS MADE ADDITIONS OF RS.57,05,000 UNDER SEC. 68 OF THE ACT ON ACCOUNT OF UNEXPLAINED CASH CREDITS ON THE BASIS THAT COPIES O F RELEVANT BILLS AGAINST THE CLAIMED SALES WERE NOT FILED TO SUBSTANTIATE THE CL AIM OF THESE CASH DEPOSITS BEING RECEIVED ON ACCOUNT OF CASH SALES. THE LEARNE D CIT(APPEALS) HAS RECORDED THE CONTENTION OF THE ASSESSEE THAT ALL TH E CASH SALES HAVE BEEN PROPERLY RECORDED IN THE STOCK REGISTER OF THE ASSE SSEE AND EXCISE DUTY AND SALES TAX HAVE BEEN DULY CHARGED REFLECTED FROM THE INVOICES FILED IN THE PAPER BOOK, ALL CASH SALES HAVE BEEN DULY EVIDENCED BY PROPER GATE PASSES AND OTHER DOCUMENTS, THE AMOUNT DEPOSITED REPRESENT S THE SALES PROCEEDS AND THERE IS NO CREDIT ENTRY WITHIN THE MEANING OF SEC. 68 OF THE ACT ETC. THE LEARNED CIT(APPEALS) CALLED FOR REMAND REPORT FROM THE ASSESSING OFFICER. THE ASSESSING OFFICER RESPONDED WITH THE REPORT THA T NOTICES UNDER SEC. 133(6) WERE DULY SENT TO FIVE PARTIES FOR THE PURP OSE OF OBTAINING 11 INFORMATION ABOUT THE TRANSACTION WITH THE ASSESSEE . HOWEVER, ALL THE FIVE ENVELOPES CONTAINING THE NOTICES WERE RETURNED UNDE LIVERED WITH THE POSTAL GENERAL REMARKS THAT NO SUCH FIRM AT THE ADDRESS GI VEN OR PREMISES FOUND LOCKED DESPITE REPEATED VISITS OR FIRM HAS STOPPED OPERATION. THEREFORE, NOTHING CAN BE DEFINITELY SAID REGARDING THE GENUIN ENESS OF THE TRANSACTION OF SALES CLAIMED BY THE ASSESSEE. THE ASSESSING OFFICE R HAS REPORTED FURTHER THAT IN A VERY STRANGE MANNER, REPLIES TO THE NOTIC ES UNDER SEC. 133(6) HAVE BEEN RECEIVED FROM THE SAME ENTITY TO WHOM THE NOTI CES WERE SENT AND WHOSE ENVELOPES WERE RETURNED BACK UNSERVED. DURING THE REMAND PROCEEDINGS, THE ASSESSEE HAD FILED BEFORE THE ASSE SSING OFFICER THE STOCK REGISTER, DETAILS OF PARTIES TO WHOM CASH SALES WER E MADE, BANK STATEMENT AND HAD PRODUCED THE BOOKS OF ACCOUNT ON 22.4.2010 AS MENTIONED BY THE LEARNED CIT(APPEALS). THE LEARNED CIT(APPEALS) CALL ED FOR THE REPLY OF THE ASSESSEE ON THE SAID REMAND REPORT AND BEING NOT SA TISFIED WITH THE SAME, HAS UPHELD THE ADDITION. 14. IN THE ASSESSMENT YEAR 2008-09, THE ASSESSING O FFICER HAS MADE ADDITION OF RS.67,23,904 UNDER SEC. 68 OF THE ACT O N ACCOUNT OF UNEXPLAINED CASH CREDITS IN THIS REGARD FOLLOWING THE ASSESSMEN T ORDERS FOR THE ASSESSMENT YEARS 2007-08 AND 2006-07. HE HAS MENTIONED THAT TH E CLAIMED AMOUNT WAS 12 RECEIVED FROM 236 PARTIES AND NOT EVEN ONE PARTY CO NFIRMED THE TRANSACTION WITH THE ASSESSEE COMPANY. THE LEARNED CIT(APPEALS) HAS UPHELD THE ADDITION WITHOUT APPRECIATING THAT BOOKS OF ACCOUNT MAINTAINED IN THE REGULAR COURSE OF BUSINESS HAVE GOT EVIDENTIARY VAL UE AND THE EVIDENCE FILED IN SUPPORT CANNOT BE IGNORED ONLY BECAUSE THE PARTI ES TO WHOM THE CLAIMED SALES WERE MADE WERE NOT FOUND ON THE GIVEN ADDRESS BY THE POSTAL AUTHORITIES OR REPLY FILED BY SOME OF THEM WERE NOT APPEARED TO BE RELIABLE. 15. IN VIEW OF ABOVE DISCUSSION, WE FIND THAT IN AL L THE ASSESSMENT YEARS ON THE ISSUE, THE STAND OF THE ASSESSEE REMAINED TH AT THE CASH DEPOSITS WERE MADE OUT OF THE SALES MADE BY IT TO THE PARTIES AND DETAILS OF PARTIES WERE ALSO FURNISHED BEFORE THE ASSESSING OFFICER HENCE P ROVISIONS OF SEC. 68 OF THE ACT ARE NOT APPLICABLE. IN THE ASSESSMENT YEAR 2007-08, THE ASSESSING OFFICER ALSO ISSUED NOTICES TO FIVE PARTIES DURING THE REMAND PROCEEDINGS AND NOTED THAT THE NOTICES WERE RETURNED UNDELIVERED WI TH THE POSTAL GENERAL REMARKS THAT NO SUCH FIRM AT THE ADDRESS GIVEN OR P REMISES FOUND LOCKED DESPITE REPEATED VISITS OR FIRM HAS STOPPED OPERATI ONS. THE ASSESSING OFFICER ACCORDINGLY OPINED THAT NOTHING CAN BE DEFINITELY S AID REGARDING GENUINENESS OF THE TRANSACTION OF SALES CLAIMED BY THE ASSESSEE . IN THE ASSESSMENT YEAR 2006-07, THE ASSESSING OFFICER HAS SIMPLY MENTIONED THAT THE NOTICES ISSUED 13 TO 206 PARTIES WERE REMAINED UNRESPONDED. IN THE AS SESSMENT YEAR 2008-09, THE ASSESSING OFFICER HAS NOTED THAT NONE OF 236 PA RTIES FROM WHOM AMOUNT WAS STATED TO HAVE BEEN RECEIVED, HAS CONFIRMED THE TRANSACTION AND IN THE ASSESSMENT YEARS 2006-07 AND 2007-08, THE ASSESSING OFFICER AND THE LEARNED CIT(APPEALS) HAVE UPHELD THE ACTION OF THE ASSESSING OFFICER. THE SUBMISSIONS OF THE ASSESSEE ON THE OTHER HAND REMAI NED THAT THE CLAIMED SALES HAVE BEEN PROPERLY RECORDED IN THE STOCK REGI STER OF THE ASSESSEE AND EXCISE DUTY AND SALES TAX HAVE BEEN DULY CHARGED, H ENCE PROVISIONS UNDER SEC. 68 OF THE ACT ARE NOT APPLICABLE. IN VIEW OF T HE CITED DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF R.N. JESSR AM FATEH CHAND VS. CIT (SUPRA), WE FULLY CONCUR WITH THE CONTENTION OF THE LEARNED AR THAT NON-SHOWING OF ADDRESSES OF PURCHASERS IN THE CASE OF CASH TRANSACTIONS CANNOT BE A GROUND FOR REJECTION OF BOOKS OF ACCOUN T OF A SELLER ASSESSEE. THE CASE OF THE PRESENT ASSESSEE BEFORE US IS HOWEVER O N BETTER FOOTING AS IN THE PRESENT CASE THE ASSESSEE HAS NOT ONLY MAINTAINED T HE DETAILS OF THE PURCHASERS BUT HAS ALSO MAINTAINED THE STOCK REGIST ER AND EXCISE DUTY AS WELL AS SALES TAX HAVE ALSO BEEN PAID. CONSIDERING ALL T HESE FACTS IN TOTALITY AND TO MEET THE END OF JUSTICE THE MATTER IS SET ASIDE TO THE FILE OF THE ASSESSING OFFICER TO EXAMINE THE CORRECTNESS OF THE ABOVE SUB MISSIONS AND IF HE FINDS THAT BESIDES MAINTAINING THE DETAILS OF THE PURCHAS ERS, THE ASSESSEE HAS ALSO 14 MAINTAINED THE STOCK REGISTER AND THE CASH SALES T RANSACTIONS WERE ALSO SUBJECTED TO THE PAYMENT OF EXCISE DUTY AND SALES T AX OR EVEN OTHERWISE THERE ARE SUFFICIENT MATERIAL ON RECORD TO ESTABLISH THE CLAIM OF THE SALES TRANSACTION, THE ASSESSING OFFICER WILL ALLOW THE C LAIM OF THE ASSESSEE THAT THE TRANSACTIONS IN QUESTION WERE SALES AND DELETE THE ADDITION MADE UNDER SEC. 68 OF THE ACT WRONGLY TREATING THEM AS UNEXPLA INED CASH CREDIT. IT IS NEEDLESS TO MENTION OVER HERE THAT WHILE DECIDING T HE ISSUE, THE ASSESSING OFFICER WILL AFFORD PROPER OPPORTUNITY OF BEING HEA RD TO THE ASSESSEE. THE RELATED GROUNDS ARE THUS ALLOWED FOR STATISTICAL PU RPOSES. 16. IN THE ASSESSMENT YEAR 2006-07, THE ASSESSING O FFICER HAS MADE FURTHER DISALLOWANCE OF RS.1,16,077 ON ACCOUNT OF C OMMISSION PAID AND RS.1,97,967 ON ACCOUNT OF ADVERTISEMENT AND PUBLICI TY ONLY ON THE BASIS THAT THESE WERE HIGHER IN COMPASSION TO THE LAST YEAR AN D NO EVIDENCE IN SUPPORT WAS FURNISHED. THE LEARNED CIT(APPEALS) HAS UPHELD THE SAME. LIKEWISE IN THE ASSESSMENT YEAR 2008-09, CLAIM OF RS.1,00,000 D ONATION MADE TO THE TRUST HAS ALSO BEEN DENIED, ABOUT WHICH THE CONTENT ION OF THE LEARNED AR REMAINED THAT THE TRUST IS HOLDING CERTIFICATE UNDE R SEC. 80G(5)(VI) OF THE INCOME-TAX ACT, 1961. SINCE WE HAVE SET ASIDE THE M AIN ISSUE REGARDING THE VALIDITY OF ADDITION MADE UNDER SEC. 68 OF THE ACT RAISED IN THE ASSESSMENT 15 YEARS UNDER CONSIDERATION, THE ABOVE ADDITIONS QUES TIONED IN THE APPEALS FOR THE ASSESSMENT YEARS 2006-07 AND 2008-09 ARE ALSO S ET ASIDE TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE SAME AFRESH AFTER A FFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THESE GROUNDS ARE ACCO RDINGLY ALLOWED FOR STATISTICAL PURPOSES. 17. IN RESULT, ALL THE APPEALS ARE ALLOWED FOR STAT ISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 17.03.2015 SD/- SD/- ( B.C. MEENA ) ( I.C. SUDHIR ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 17 /03/2015 MOHAN LAL COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR DATE DRAFT DICTATED ON COMPUTER DIRECTLY 12.03.2015 DRAFT PLACED BEFORE AUTHOR 17.03.2015 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS 19.03.2015 KEPT FOR PRONOUNCEMENT ON 17.03.2015 FILE SENT TO THE BENCH CLERK 20.03.2015 DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.