DCIT CC 23, MUMBAI V. PRATIMA H. MEHTA, MUMBAI

ITA 4288/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83677 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 1993-1994
• Appeal Filed On: 21-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P DANIEL
• Keywords: Principle of natural justice; Additional evidence; Corroborative evidences
• Section: 234B

Judgement Text

C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE S/SHRI VIJAY PAL RAO, JM AND N.K. BILLAIYA, AM , . . , !./ I.T.A. NO.3443 /MUM/2012 ( / ASSESSMENT YEAR : 1993-1994 SMT. PRATIMA H. MEHTA, 32, MADHULI, DR. A.B. ROAD, WORLI, MUMBAI- 400 018. / VS. ACIT CC - 23, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020. # ! ./ PAN : ABNPM8226G ( #$ / APPELLANT ) .. ( %&#$ / RESPONDENT ) !./ I.T.A. NO.4288 /MUM/2012 ( / ASSESSMENT YEAR : 1993-1994 ACIT CC - 23, CENT. RANGE -7, ROOM NO. 409, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020. / VS. SMT. PRATIMA H. MEHTA, 32, MADHULI, DR. A.B. ROAD, WORLI, MUMBAI- 400 018. # ! ./ PAN : ABNPM8226G ( #$ / APPELLANT ) .. ( %&#$ / RESPONDENT ) ASSESSEE BY SHRI VIJAY MEHT A & SHRI DHARMESH SHAH DEPARTMENT BY DR. P. DANIEL (STANDING COUNSEL BY ORDER) ' ( ) * + / DATE OF HEARING : 2-9-2014 ,-./ ) * + / DATE OF PRONOUNCEMENT : 05-09-2014 [ ITA 3443/M/12 & 4288/M/12 2 0 / O R D E R PER N.K. BILLAIYA, A.M . : . . , THESE CROSS APPEALS BY THE ASSESSEE AND THE REVENUE ARE DIRECTED AGAINST THE ORDER OF THE LD. CIT(A) 40, MUMBAI DATE D 30-03-2012 PERTAINING TO A.Y. 1993-94. THESE APPEALS ARE HEAD TOGETHER AND D ISPOSE OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVIT Y. ITA NO. 3443/MUM/12 (ASSESSEES APPEAL FOR A.Y. 199 3-94). 2. THE ASSESSEE HAS RAISED THE FOLLOWING SIX GROUND S OF APPEAL:- 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN NOT APPRECIATING THAT THE ASSES SING OFFICER HAS NOT COMPLIED WITH THE PRINCIPLES OF NATURAL JUSTICE EIT HER DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS OR DURING THE COURSE OF THE REMAND PROCEEDINGS. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN LAW AND IN FACTS IN NOT DETERMINING THE INCOME BASE D ON THE FINAL BOOKS OF ACCOUNT THEREBY CONFIRMING THE MANNER OF DETERMI NATION OF INCOME BY THE ASSESSING OFFICER. THE LEARNED CIT(A) OUGHT TO HAVE ACCEPTED THE BOOK RESULTS SHOWN BY THE APPELLANT. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN NOT APPRECIATING THAT NO INCOME FROM THE ATTACHED ASSETS CAN BE TAXED IN THE HANDS OF THE APPELLANT. 4. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING THE ENHANCEMENT OF I NCOME, IN PRINCIPLE, AS PROPOSED BY THE ASSESSING OFFICER WHICH IS ILLEG AL, INVALID AND BEYOND JURISDICTION. 5. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING THE DISALLOWANCE OF DEDUCTION ON ACCOUNT OF INTEREST EXPENDITURE CLAIMED BY THE APPELLANT. 6. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING THE LEVY OF INTEREST U/S 234A AND 234B PF THE ACT. ITA 3443/M/12 & 4288/M/12 3 3. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT HE IS NOT PRESSING GROUND NO. 3. THE SAME IS ACCORDINGLY DIS MISSED AS NOT PRESSED. 4. GROUND NO. 1 IS GENERAL IN NATURE, HENCE NEED NO SEPARATE ADJUDICATION. 5. GROUND NO. 2 RELATES TO THE GRIEVANCE THAT THE L D. CIT(A) OUGHT TO HAVE ACCEPTED THE BOOK RESULTS. IT IS THE SAY OF THE LD . COUNSEL FOR THE ASSESSEE THAT IN THE FIRST ROUND OF LITIGATION, THE TRIBUNAL IN ITA NO. 5192/MUM/2003 ORDER DATED 17-3-2006 AT PARA 8 OF ITS ORDER HAS DI RECTED THE LD. CIT(A) TO ADMIT THE BOOKS OF ACCOUNT AS AN ADDITIONAL EVIDENC E. HOWEVER, WE FIND THAT THE LD. CIT(A) AT PARA 8.4 OF HIS ORDER HAS OBSERVE D THAT THE ONLY MAJOR ADDITION MADE BY THE A.O. IS ON THE GROUND THAT THE APPELLANT HAS SOLD CERTAIN SHARES AND EARNED CAPITAL GAIN. THIS GROUND IS BEING DEALT WITH IN THE SUBSEQUENT PARA OF THIS ORDER. IN LIGHT OF THIS, TH E REJECTION OF BOOK OF ACCOUNT DO NOT PREJUDICIALLY AFFECT THE APPELLANT. THUS, TH E WHOLE ISSUE IS ACADEMIC IN NATURE HAVING NO BEARING ON ANY OF THE ADDITION MAD E BY THE ASSESSING OFFICER. WITH THESE OBSERVATIONS, THE LD. CIT(A) D ISMISSED THE GRIEVANCE OF THE ASSESSEE IN RESPECT OF REJECTION OF BOOKS OF ACCOUN T AS INFRUCTUOUS. AGGRIEVED BY THIS, THE ASSESSEE IS IN APPEAL BEFORE US. 6. A PERUSAL OF THE ORDER OF THE TRIBUNAL IN THE FI RST ROUND OF LITIGATION IN ITA NO. 5192/MUM/2003 SHOWS THAT THE TRIBUNAL HAS O BSERVED THAT THE LD. CIT(A) HIMSELF HAD ADMITTED THE BOOKS OF ACCOUNT AS AN ADDITIONAL EVIDENCE AND THE DEPARTMENT IS NOT IN APPEAL AGAINST THOSE O RDERS. ONCE THE ADMISSION OF THE BOOKS OF ACCOUNT HAS BEEN ACCEPTED , THEN THE LD. CIT(A) OUGHT TO HAVE GONE WITH THE BOOKS OF ACCOUNT AND IF THE BOOKS OF ACCOUNT WERE NOT FOUND PROPER OR AS PER THE ACCOUNTING POLI CIES, THE SAME SHOULD HAVE BEEN REJECTED BUT THAT BEING NOT THE CASE, WE DO NOT FIND ANY REASON FOR NOT ADMITTING THE BOOKS OF ACCOUNT. CONSIDERING THE PAST HISTORY AND THE ORDER OF THE TRIBUNAL (SUPRA), IN OUR CONSIDERED OP INION, THE BOOKS OF ACCOUNT ITA 3443/M/12 & 4288/M/12 4 OUGHT TO HAVE BEEN EXAMINED BY THE AUTHORITIES BELO W. WE THEREFORE RESTORE THIS ISSUE TO THE FILE OF THE A.O. TO EXAMINE THE C ORRECTNESS OF THE BOOKS OF ACCOUNT WITH SUPPORTING EVIDENCES. GROUND NO. 2 OF ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. 7. GROUND NO. 4 RELATES TO THE ENHANCEMENT OF INCOM E IN PRINCIPLE. THE LD. CIT(A) HAS CONSIDERED THIS ISSUE AT PAGE 14, PA RA (H) OF HIS ORDER. THE LD. CIT(A) OBSERVED THAT THE A.O. HAS FORWARDED THE PRO POSAL FOR ENHANCEMENT OF THE INCOME ON THE GROUND THAT THERE IS A MISMATCH I N THE BALANCES IN THE LEDGER ACCOUNT OF THE APPELLANT AND LATE SHRI HARSH AD S. MEHTA. IT WAS FOUND THAT IN THE BOOKS OF LATE SHRI HARSHAD S. MEH TA, THE ASSESSES LEDGER ACCOUNTS SHOWS A DEBIT BALANCE OF RS. 7,81,46,140/- WHEREAS IN THE CASE OF ASSESSES LEDGER ACCOUNT SHOWS A CREDIT BALANCE OF RS. 7,47,55,547/-. THUS THERE WAS A DIFFERENCE OF RS. 33,90,593/- WHICH THE A.O. REQUIRED THE LD. CIT(A) TO ADD TO THE TOTAL INCOME OF THE ASSESSEE. THE ASSESSEE WAS ASKED TO EXPLAIN. THE ASSESSEE FILED A DETAILED REPLY STRON GLY OBJECTING TO THE PROPOSED ENHANCEMENT. IT WAS CLAIMED THAT THE PROPOSED ENHA NCEMENT WAS ENTIRELY ON PRESUMPTION NOT SUPPORTED BY ANY EVIDENCE. THE TRAN SACTIONS ARE VERY MUCH REFLECTED IN THE BOOKS OF ACCOUNT OF BOTH THE PARTI ES. IT WAS FURTHER STATED THAT THE A.O. HIMSELF HAS ADMITTED THAT THE ASSESSEE HAS SHOWN THE TRANSACTIONS IN HER BOOKS OF ACCOUNT WHEREAS LATE SHRI HARSHAD S . MEHTA HAS NOT SHOWN SUCH TRANSACTIONS. UNDER THESE CIRCUMSTANCES, THE ADDITIONS CANNOT BE MADE IN THE HANDS OF THE ASSESSEE. IT WAS FURTHER STATED THAT THE DIFFERENCE IN THE ACCOUNTS IS BECAUSE THERE WAS A DIFFERENCE IN THE O PENING BALANCE WHICH IS ON ACCOUNT OF INTEREST PAYABLE BY THE ASSESSEE TO LATE SHRI HARSHAD S. MEHTA. THE ASSESSEE HAS ALSO FILED THE COPIES OF THE LEDGE R ACCOUNT EXPLAINING THE DIFFERENCE IN OPENING BALANCES. THE COPIES OF THE LEDGER ACCOUNT OF SHRI LATE SHRI HARSHAD S. MEHTA AND ALSO THE BOOKS OF THE ASS ESSEE ARE EXTRACTED AT PARA 14.2 ON PAGE 18 OF THE ORDER OF THE LD. CIT(A) . AFTER CONSIDERING THE FACTS AND THE COPIES OF LEDGER ACCOUNT, THE LD. CIT(A) WA S CONVINCED THAT THE ITA 3443/M/12 & 4288/M/12 5 DIFFERENCE TO THE TUNE OF RS. 33,90,593/- WAS ON AC COUNT OF DIFFERENCE IN THE OPENING BALANCE THEREFORE NO ENHANCEMENT OF INCOME CAN BE MADE IN THE YEAR UNDER APPEAL. HOWEVER, AT THE SAME TIME, DIRECTED THE A.O. TO ENHANCE IN RESPECT OF THE BALANCE ENTRIES AFTER EXCLUDING THE DIFFERENCE ON ACCOUNT OF OPENING BALANCE. AGGRIEVED BY THIS, THE ASSESSEE I S IN APPEAL BEFORE US. 8. THE LD. COUNSEL FOR THE ASSESSEE TOOK US TO THE EXTRACT OF THE COPIES OF THE LEDGER ACCOUNT AS EXHIBITED AT PAGE 18 OF THE O RDER OF THE LD. CIT(A). IT IS THE SAY OF THE LD. COUNSEL FOR THE ASSESSEE THAT TH E OPENING BALANCES ARE SELF EXPLANATORY AS THE DIFFERENCE CAN BE SEEN IN THE OP ENING BALANCES ITSELF. IT IS THE SAY OF THE LD. COUNSEL FOR THE ASSESSEE THAT TH E OPENING BALANCE DIFFERENCE WAS TO THE TUNE OF RS. 33,90,593/-. THE ASSESSEE W AS TO PAY LEASE RENT TO LATE SHRI HARSHAD S. MEHTA AT RS. 480/- AND THERE WAS A DIFFERENCE OF BROKERAGE CHARGED BY LATE SHRI HARSHAD S. MEHTA AND THE BROKE RAGE CALCULATED BY THE ASSESSEE. IF THAT DIFFERENCE IS ALSO TAKEN INTO CO NSIDERATION, THE ACCOUNTS CAN BE RECONCILED WITH THE DIFFERENCE REMAINING ONLY IN THE OPENING BALANCE. 9. PER CONTRA, THE LD. D.R. STRONGLY SUPPORTED THE FINDINGS OF THE A.O. IT IS THE SAY OF THE LD. D.R. THAT IF THE LD. CIT(A) WAS CONVINCED THAT THE DIFFERENCE WAS ONLY IN THE OPENING BALANCES THEN, THERE WAS NO REASON TO DELETE THE ENTIRE AMOUNT OF RS. 33,90,593/-. 10. HAVING HEARD THE RIVAL SUBMISSION AND CAREFULLY PERUSED THE ORDER OF THE LOWER AUTHORITIES, WE FIND THAT THE DIFFERENCE IN THE OPENING BALANCE WAS TO THE TUNE OF RS. 33,59,501/-. THE TOTAL DIFFEREN CE ACCORDING TO THE A.O. IS AT RS. 33,90,593/-. WE FIND THAT THE LEASE RENT TO BE PAID BY THE ASSESSEE WAS AT RS. 480/- AND THE DIFFERENCE IN THE BROKERAGE CH ARGED BY LATE SHRI HARSHAD S. MEHTA @ 0.3% AND CALCULATED BY THE ASSESSEE @ 0. 2% HAS RESULTED INTO A DIFFERENCE OF RS. 31552/-. IF THESE TWO FIGURES ARE TAKEN INTO CONSIDERATION WITH THE OPENING BALANCE, THE TOTAL COMES TO RS. 33 ,90,573/-. THE DIFFERENCE CALCULATED BY THE A.O. IS AT RS. 33,90,593/- LEAVIN G A MEGRE SUM OF RS. 20/-. FURTHER, WE FIND THAT LATE SHRI HARSHAD S. MEHTA HA S TO RECEIVE MORE AMOUNT ITA 3443/M/12 & 4288/M/12 6 FROM THE ASSESSEE THEREFORE THE DIFFERENCE CANNOT B E TREATED AS INCOME OF THE ASSESSEE. IT IS NOT A CASE WHERE THE ASSESSEE IS S HOWING MORE AMOUNTS TO BE RECEIVED FROM LATE SHRI HARSHAD S. MEHTA. FURTHER, IT IS AN UNDISPUTED FACT THAT THE DIFFERENCE IS ONLY IN RESPECT OF OPENING B ALANCES AND WITH A DIFFERENCE OF RS. 31072/- PERTAINING TO THE YEAR UNDER CONSIDE RATION. WE, THEREFORE, RESTORE THIS ISSUE TO THE FILE OF THE A.O. FOR THE LIMITED PURPOSE OF VERIFICATION OF RECONCILIATION OF THE DIFFERENCE BETWEEN THE OPE NING BALANCES AND THE CLOSING BALANCES RELATING TO BROKERAGE AND LEASE RE NT. THE ASSESSEE IS DIRECTED TO FILE NECESSARY DETAILS. THE A.O. IS DIRECTED TO VERIFY THE DETAILS AND DECIDE THIS LIMITED ISSUE. GROUND NO. 4 IS ACCORDINGLY PAR TLY ALLOWED FOR STATISTICAL PURPOSE. 11. GROUND NO. 5 RELATES TO THE DISALLOWANCE OF DED UCTION ON ACCOUNT OF INTEREST EXPENDITURE. 12. THE LD. COUNSEL FOR THE ASSESSEE STATED THAT TH IS ISSUE HAS BEEN DECIDED BY THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 199 1-92 IN ITA NO. 1181/MUM/2012. 13. WE HAVE CAREFULLY PERUSED THE ORDER OF THE TRIB UNAL (SUPRA). WE FIND THAT THE TRIBUNAL HAS DECIDED THIS ISSUE AT PARA 7 ON PAGE 2 OF ITS ORDER WHEREIN THE TRIBUNAL HAS RESTORED THE MATTER TO THE FILE OF THE A.O. TO FOLLOW THE DIRECTIONS OF THE TRIBUNAL IN ITA NO. 8023/MUM/ 2011. RESPECTFULLY FOLLOWING THE FINDINGS OF THE CO-ORDINATE BENCH, WE RESTORE THIS ISSUE TO THE FILE OF THE A.O. TO FOLLOW THE DIRECTIONS GIVEN BY THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO. 1181/MUM/2012 FOR A.Y. 1991-92. GRO UND NO. 5 IS ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSE. 14. GROUND NO. 6 RELATES TO LEVY OF INTEREST U/S 23 4A AND 234B OF THE ACT. 15. A SIMILAR ISSUE WAS DECIDED BY THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO. 1181/MUM/2012 VIDE PARA 9 OF ITS ORDER WHER EIN IT HAS BEEN HELD ITA 3443/M/12 & 4288/M/12 7 THAT LEVY OF INTEREST IS MANDATORY, HOWEVER, THE SA ME IS CONSEQUENTIAL IN NATURE AND HENCE THE NECESSITY OF ADJUDICATING THIS GROUND DOES NOT ARISE. RESPECTFULLY FOLLOWING THE AFOREMENTIONED FINDINGS OF THE TRIBUNAL, WE HOLD ACCORDINGLY. 16. THE ASSESSEE HAS ALSO RAISED AN ADDITIONAL GROU ND WHERE THE GRIEVANCE IS THAT THE LD. CIT(A) OUGHT TO HAVE DIRECTED THE A .O. TO TAX THE CORRECT AMOUNT OF LONG TERM CAPITAL GAIN AT RS. 8,98,68,376/- INST EAD IN-CORRECT AMOUNT ADOPTED IN THE ORIGINAL ASSESSMENT ORDER AT RS. 9,8 1,15,941/-. 17. AFTER ADMITTING THIS ADDITIONAL GROUND, IN OUR CONSIDERED OPINION, IT REQUIRES VERIFICATION OF FACTS. WE, THEREFORE, RES TORE THE ISSUE TO THE FILE OF A.O. THE A.O. IS DIRECTED TO VERIFY THE CORRECT AMOUNT O F LONG TERM CAPITAL GAIN AS PER THE DETAILS BROUGHT TO HIS NOTICE. THE ASSESSEE IS DIRECTED TO FURNISH NECESSARY DETAILS. THE ADDITIONAL GROUND IS ACCORD INGLY ALLOWED FOR STATISTICAL PURPOSE. 18. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ITA NO. 4288/MUM/2012 (REVENUES APPEAL) 19. THE FIRST GRIEVANCE OF THE REVENUE IS THAT THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 3,31,20,180/- MADE ON ACCOUNT O F PROFIT ON SALE OF SHARES. 20. THE LD. CIT(A) HAS CONSIDERED THIS ISSUE AT PAR A 6(C) OF HIS ORDER. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ON THE BASIS OF SEVERAL INFORMATION OBTAINED FROM RBI, CUSTODIAN, BSE COMPA NIES AND THIRD PARTIES ABOUT THE SHARE HOLDING OF THE ASSESSEE, THE DATA W ERE ANALYSED AND THE HOLDING IN SHARE OF THE ASSESSEE WAS DETERMINED AS ON 31-3-1992. THE SAME WAS TAKEN AS OPENING STOCK FOR THE YEAR UNDER CONSI DERATION. THE CLOSING STOCK OF THE ASSESSEE WAS DETERMINED FOR THE YEAR U NDER CONSIDERATION AND ON ITA 3443/M/12 & 4288/M/12 8 COMPARING THE OPENING STOCK AND CLOSING STOCK, WHEN EVER THERE WAS A DIFFERENCE WHERE OPENING STOCK WAS HIGHER THAN THE CLOSING STOCK, IT WAS TREATED AS SALE AND WHEREVER THE CLOSING STOCK WAS HIGHER THAN THE OPENING STOCK, THE DIFFERENCE WAS TREATED AS UNEXPLAINED PU RCHASE. THE PURCHASES WERE DETERMINED AT RS. 8,85,75,861/- AND THE SALES WERE DETERMINED AT RS. 15,55,67,482/-. THE PROFIT ON SALE OF SHARES WAS DE TERMINED AT RS. 3,31,20,180/-. THE A.O. ADDED THIS AMOUNT. BEFORE THE LD. CIT(A), IT WAS CONTENDED THAT THE INFORMATION RELIED UPON BY THE A .O. WERE EITHER GIVEN TO THE ASSESSEE DURING THE PROCEEDINGS OF A.Y. 1992-93 OR DURING THE PROCEEDINGS FOR A.Y. 1993-94. IT WAS FURTHER CONTE NDED THAT THE A.O. HAS COMPUTED THE HOLDING OF SHARES FROM THE INFORMATION COLLECTED FROM DIFFERENCE SOURCES. IT WAS FURTHER SUBMITTED THAT THE WORKING OF OPENING STOCK IS BORROWED FROM THE WORKING GIVEN IN A.Y. 1992-93 WIT HOUT ANY BREAK-UP AND WITHOUT ANY BASIS. AFTER CONSIDERING THE FACTS AND THE SUBMISSIONS, THE LD. CIT(A) AT PARA 9.7 OF HIS ORDER OBSERVED THAT THE A .O. DID NOT GAVE ANY BREAK- UP AND THE BASIS AS TO HOW THE FIGURES OF SALES AND PURCHASES WERE DERIVED BY HIM WHICH FACT WAS ALSO ADMITTED BY THE A.O. IN THE REMAND PROCEEDINGS. AT PARA 9.8, THE LD. CIT(A) HELD I FIND THAT DURING T HE COURSE OF PRESENT PROCEEDINGS ALSO, THE THINGS HAVE NOT IMPROVED. TH E A.O. HAS STILL NOT BEEN ABLE TO PROVIDE ANY BREAK UP OR THE DETAILS AND INF ORMATION AS TO HOW THE FIGURE OF PROFIT ON SALE OF SHARES HAVE BEEN DERIVE D BY HIM IN THE ASSESSMENT ORDER. THUS, I FIND THAT THE VERY BASIS DETAILS GE RMANE TO THE ADDITION MADE BY THE A.O. ARE NOT AVAILABLE ON RECORD. THEREAFT ER THE LD. CIT(A) FOLLOWED THE FINDINGS GIVEN IN THE CASE OF SHRI HITESH MEHTA FOR A.Y. 1993-94 AND DELETED THE ADDITION. AGGRIEVED BY THIS, THE REVENUE IS IN APPEAL BEFORE US. 21. THE LD. D.R. STRONGLY SUPPORTED THE FINDINGS OF THE A.O. PER CONTRA, THE LD. COUNSEL FOR THE ASSESSEE REITERATED WHAT HAS BE EN SUBMITTED BEFORE THE LOWER AUTHORITIES. ITA 3443/M/12 & 4288/M/12 9 22. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUT HORITIES BELOW. WE HAVE ALSO GONE THROUGH THE ORDER OF THE FIRST APPELLATE AUTHORITY IN THE CASE OF SHRI HITESH MEHTA DTD, 29-3-2012. WE FIND THAT THE ENTI RE ADDITION HAS BEEN MADE BY THE A.O. ON THE BASIS OF INFORMATION GATHER ED FROM DIFFERENT SOURCES. WE FIND THAT THE A.O. HAS MERELY PICKED UP FIGURE F ROM THE ANNEXURE AND ARRIVED AT THE FIGURE OF ADDITION WITHOUT MAKING EN QUIRY OR BRINGING ANY EVIDENCE ON RECORD. WE FIND THAT ON IDENTICAL FACT S IN THE CASE OF SHRI HITESH MEHTA, THE ADDITIONS WERE DELETED. THE SAID ORDER WAS CHALLENGED BEFORE THE TRIBUNAL IN ITA NO. 5138/MUM/2003 BUT THIS ISSUE WA S NOT RAISED BEFORE THE TRIBUNAL. THE FACTS AND CIRCUMSTANCES ARE BEING SI MILAR, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE FINDINGS OF THE LD. CI T(A). GROUND NO. IS ACCORDINGLY DISMISSED. 23. GROUND NO. 2 RELATES TO THE DIRECTION TO ENHANC E THE INCOME OF THE ASSESSEE AFTER EXCLUDING THE DIFFERENCE TO THE TUNE OF RS. 33,90,593/- BEING DIFFERENCE IN THE OPENING BALANCE. 24. THIS ISSUE HAS BEEN DISCUSSED BY US AT LENGTH I N ITA NO. 3443/MUM/2012 VIDE GROUND NO. 4 IN THAT APPEAL, FOR SIMILAR REASON, THIS GROUND IS ACCORDINGLY DECIDED. 25. IN THE RESULT, APPEAL FILED BY THE REVENUE IS D ISMISSED. 26. IN THE RESULT, APPEAL FILED BY THE REVENUE IS D ISMISSED WHEREAS THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH SEPTEMBER, 2014. 0 ) ,-./ ' 1 2!3 05 -9-2014 - ) 4( SD/- SD/- (VIJAY PAL RAO) (N.K. BILLAIYA ) JUDICIAL MEMBER ACCOUNTANT MEMBER ' !( MUMBAI ; 2! DATED 05-09-2014. ITA 3443/M/12 & 4288/M/12 10 [ .../ R.K. , SR. PS ! ' #$%& ' &$ / COPY OF THE ORDER FORWARDED TO : 1. #$ / THE APPELLANT 2. %&#$ / THE RESPONDENT. 3. ' G* ( ) / THE CIT(A) 40, MUMBAI 4. ' G* / CIT- CENTRAL II, MUMBAI 5. J4 %*KL , + KL / , ' !( / DR, ITAT, MUMBAI C BENCH 6. 4MN O( / GUARD FILE. ! ( / BY ORDER, &* %* //TRUE COPY// )/(* + ( DY./ASSTT. REGISTRAR) , ' !( / ITAT, MUMBAI