United Refrigeration & Industries, New Delhi V. ACIT, New Delhi

ITA 430/DEL/2011

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6342 (ITAT-DELHI)
• Duration Of Justice: 6 year(s) 1 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 05-01-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 25-01-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: UMESH CHANDER DUBEY
• Keywords: Search and seizure; Loose papers; Opportunity of being heard; Additional evidence; Wholly owned subsidiary; Documents seized; Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 143(3); 92; 153A; 234B; 13; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. SUDHANSHU SRIVASTAVA, JM IT A NO. 430/DEL/2011 : ASSTT. YEAR : 200 6 - 07 ITA NO. 431/DEL/2011 : ASSTT. YEAR : 2007 - 08 UNITED REFRIGERATION & INDUSTRIES 21/73, OLD RAJINDER NAGAR, NEW DELHI - 110060 VS ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 7 , NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A A AFC2025R ASSESSEE BY : SH. SALIL KAPOOR, ADV. REVENUE BY : SH. UMESH CHANDER DUBEY, SR. DR DATE OF HEARING : 05 .0 1 .201 7 DATE OF PRONOUNCE MENT : 22 .03 .201 7 ORDER PER N. K. SAINI, AM : THE SE TWO APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDERS EACH DATED 27.10.2010 OF THE LD. CI T(A) - I , NEW DELHI. 2. SINCE THE SE APPEALS RELATING TO THE SAME ASSESSEE , HAVING SIMILAR ISSUES INVOLVED WERE HEARD TOGETHER SO THESE ARE BEING DISPOSED OF F BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 3. THE GROUNDS RAISED IN ITA NO. 430/DEL/2011 FOR THE ASSESSMENT YEAR 2006 - 07 READ AS UNDER: ITA NOS. 430 & 431/DEL/2011 UNITED REFRIGERATION & INDUSTRIES 2 1. THE LEARNED CIT [A] HAS ERRED IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER . 2.1 THE DEPARTMENT HAS NOT CONFRONTED THE DOCUMENTS WHICH IT HAS COLLECTED BEHIND THE BACK OF THE ASSESSEE, AND AFFORDED AN OPPORTUNITY TO CROSS - EXAMINE THE PERSON FROM WHOM IT HAS RECOVERED THE DOCUMENTS AND THEN GAVE HIM AN ADEQUATE A ND REASONABLE OPPORTUNITY TO REBUT THEM . 2.2 THE ASSESSMENT IS BASED ON PHOTOCOPIES FOUND FROM A THIRD PARTY [TRANSWORLD ICT SOLUTIONS PVT. LTD., IN BANGALORE.] WHICH ARE NEITHER AUTHENTICATED NOR HAS FOUND THE ORIGINAL DOCUMENTS AND SUCH THAT UNAUTHENTIC ATED PHOTOCOPIES ARE NOT ADMISSIBLE EVIDENCES . 2.3 THE DOCUMENTS RELIED BY THE AUTHORITIES BELOW EITHER DO NOT BEAR THE SIGNATURES OF THE ASSESSEE OR BEAR FORGED SIGNATURES . 2.4 THAT THE DEPARTMENT HAS NOT FOUND /LOCATED THE SAID BANK BUT HAS EXTRACTED I NFORMATION ABOUT THE ALLEGED BANK ACCOUNT FROM THE DATA BAN K OF TRANSWORLD ICT SOLUTIONS PV T. LTD., IN BANGALORE. 2.5 THE DEPARTMENT HAS NOT BEEN ABLE TO GET ANY DATA NOR ABLE TO LOCATE THE SAID FIRST CURACAO INTERNATIONAL BANK . 2.6 THE ASSESSMENT IS MAD E ON THE BASIS OF DUMB DOCUMENTS WHICH HAVE NO RELATION TO THE ASSESSEE AND NO FUNDS FROM THE ALLEGED HUGE INCOME HAS FLOWN TO IT . ITA NOS. 430 & 431/DEL/2011 UNITED REFRIGERATION & INDUSTRIES 3 2.7 THE LEARNED AO HAS IGNORED THE FACT THAT AUTHORITIES OUTSIDE INDIA HAVE FOUND THAT THE SAID FIRST CURACAO INTERNATIONAL B ANK IS INVOLVED IN CYBER CRIME AND VAT FRAUDS . 2.8 THE LEARNED AO HAS IGNORED THE FACT THAT THE OWNERS OF FIRST CURACAO INTERNATIONAL BANK AND THE TRANSWORLD ICT SOLUTIONS PVT. LTD., OF BANGALORE ARE THE SAME PERSON[S] WHO, ARE INVOLVED IN CYBER CRIME SPR EAD OVER A NUMBER OF COUNTRIES . 3.1 THAT THE ASSESSEE HAS NEITHER OPENED THE ALLEGED BANK ACCOUNT WITH THE FIRST CURACAO INTERNATIONAL BANK NOR HAS DONE, ANY E - TRADING . 3.2 THAT THE ALLEGED ACCOUNT OPENING DOCUMENTS BEAR FORGED SIGNATURES, AND IS NOT IN ACCORDANCE TO THE PARTNERSHIP DEED OF THE FIRM . 3.3 THAT THE BALANCE SHEET AND PROFIT & LOSS ACCOUNT OF THE FIRM ALLEGED TO BE FOUND WITH THE TRANSWORLD ICT SOLUTIONS PV T. LTD., OF BANGALORE DO NOT BEAR ANY SIGNATURES OF THE PARTNERS OF THE ASSESSEE FIRM BUT SOME CHARTERED ACCOUNTANTS WHO WERE NEITHER EXAMINED BY THE DEPARTMENT NOR CONFRONTED TO THE ASSESSEE . 3.4 THE LEARNED AO HAS IGNORED THE FACT THAT THE COMPUTER FOUND FROM THE PREMISES OF THE ASSESSEE AND ITS' PARTNERS DO NOT HAVE ANY RECORD OF OPERAT IONS BY INTERNET OF THE SAID OR ANY OTHER BANK ACCOUNT . ITA NOS. 430 & 431/DEL/2011 UNITED REFRIGERATION & INDUSTRIES 4 3.5 THE LEARNED AO HAS - IGNORED THE FACT THAT THE ALLEGED COMMUNICATION RECEIVED BY THE ASSESSEE FROM FIRST CURACAO INTERNATIONAL BANK DOES NOT HAVE ANY ADDRESS ON WHICH THE ASSESSES COULD HAVE COMMU NICATED, EITHER ENQUIRING ABOUT IT OR DENYING THAT THEY DO NOT HAVE ANY CONNECTION WITH IT . 3.6 THE LEARNED AO HAS IGNORED THE FACT THAT THE ASSESSEE HAS FILED CRIMINAL COMPLAINTS AGAINST ALL THE PARTIES WHICH ARE STILL UNDER PROCESS . 3.7 THE LEARNED AO HAS IGNORED THE FACT THAT THE EXCHANGE CONTROL AUTHORITIES IN INDIA UNDER FEMA ARE INVESTIGATING AGAINST TRANSWORLD ICT SOLUTIONS PVT. LTD., OF BANGALORE AND A NUMBER OF OTHERS AND THEY ARE YET TO DECIDE ON THE ERRING PARTIES . 4. THAT WITHOUT PREJUDICE TO THE FOREGOING THAT THE ACCOUNT WAS NOT OPENED BY THE APPELLANT THERE ARE A LARGE NUMBER OF ARITHMETICAL ERRORS AND DOUBLE ADDITIONS IN THE AMOUNT WORKED OUT BY THE LEARNED AO IN THE ADDITION MADE . 5. THE LEARNED AO HAS IGNORED THE FACT THAT THE LOAN AGRE EMENT WITH THE ALLEGED MR. AJIAB SINGH OF WISE BERRY SERVICES U.K. DOES NOT BEAR THE SIGNATURES OF THE PARTNERS OF THE ASSESSEE . 6. THE DISALLOWANCE OF RS. 36,300 AS L/5 TH OF THE TOTAL EXPENSES SHOWN IN P&L A/C AS UN - VOUCHED IS WRONG AS THE TOTAL EXPENSES DEBITED IN P&L A/C INCLUDING CONSUMABLE STORES ARE RS. 1,20,983 ONLY . 7. THE INTEREST CHARGED U/S 234A AND 234B ARE WRONG . ITA NOS. 430 & 431/DEL/2011 UNITED REFRIGERATION & INDUSTRIES 5 8. THAT THE ABOVE GROUNDS ARE INDEPENDENT AND WITHOUT PREJUDICE TO EACH OTHER. 9. THAT THE APPELLANT SEEKS LEAVE TO ADD, AMEND, AL TER OR ABANDON ANY OF THE ABOVE GROUNDS AT THE TIME OF HEARING OF THE APPEAL. 4. THE FACTS OF THE CASE IN BRIEF ARE THAT A SEARCH AND SEIZURE OPERATION U/S 132 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS CARRIED ON 24.01.2007 AT THE REGISTERED OFFICE OF THE ASSESSEE AS WELL AS THE RESIDENCE S OF ITS PARTNER. THE ASSESSEE FIRM WAS OSTENSIBLY ENGAGED IN THE BUSINESS OF ELECTRICAL AND ELECTRONIC PRODUCTS, REFRIGERATION AND AIR CONDITIONING PLANTS. IT WAS FOUND THAT THE ASSESSEE WAS CA RRYING E - TRADING ACTIVITIES WITH BUSINESS ENTITIES LOCATED IN UNITED KINGDOM, SPAIN, TURKEY, UAE AND OTHER COUNTRIES. THE ASSESSEE COMPANY WAS FOUND TO BE A 100% WHOLLY OWNED SUBSIDIARY OF TRANSWORLD ICT BRITISH VIRGIN ISLANDS THAT WAS A GROUP COMPANY OF F IRST CURACAO INTERNATIONAL BERMUDA. THE AO ISSUED THE NOTICE U/S 153A OF THE ACT ON 05.03.2008 REQUIRING THE ASSESSEE TO FILE THE RETURN S FOR 6 ASSESSMENT YEARS STARTING FROM ASSESSMENT YEAR 2001 - 02. THE ASSESSEE FILED THE RETURN OF INCOME FOR THE ASSESSME NT YEARS 2003 - 04 TO 2006 - 07 ON 16.07.2008 AND ALSO FURNISHED THE PHOTOCOPIES OF THE RETURNS OF INCOME WHICH WERE ALREADY ITA NOS. 430 & 431/DEL/2011 UNITED REFRIGERATION & INDUSTRIES 6 FILED BEFORE THE AO FOR THE RESPECTIVE ASSESSMENT YEARS AND STATED THAT THE SAME MAY BE TREATED AS THE RETURN OF INCOME FOR THE PURPOSE OF SECTION 153A OF THE ACT. HOWEVER, T HE AO FRAMED THE ASSESSMENT AT AN INCOME OF RS.15,41,86,913/ - WHICH WAS COMPUTED AS UNDER: PROFIT AND GAINS OF BUSINESS AS PER COMPUTATION OF INCOME FILED ALONG WITH THE RETURN OF INCOME : RS. ( - ) 4,540 ADD: DISALLOW ANCE I. EXPENSES DISALLOWED AS UNVOUCHED RS. 36,300 II. INCOME FROM E - TRADING ACTIVITY UNDISCLOSED BY THE ASSESSEE RS.15,41,40,768 III. INCOME FROM INTEREST RS.14,385 TOTAL INCOME RS.15,41,86,913 5 . BEING AG GRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND FURNISHED VARIOUS DOCUMENTS WHICH ARE SUMMARIZED BY THE LD. CIT(A) IN PARA 4 OF THE IMPUGNED ORDER AND READ AS UNDER: THE WRITTEN SUBMISSIONS MADE BY THE APPELLANT IN THE COURSE OF APPEAL PROCE EDINGS, IN REGARD TO VARIOUS DOCUMENTS ARE SUMMARIZED HERE UNDER: SR. NO. DOCUMENT REMARKS BY APPELLANT 1. ANNEXURE - A - 01: B ANK ACCOUNT STATEMENT OF M/S UN ITED REFRIGERATION AND INDU STRIES HAVING A CLIEN T REFERENCE NUMBER - 04 - 801 - 204330 - 01 THIS IS AN ALLE GED BANK ACCOUNT WITH FIRST CURACAO BANK TRANSCRIPT OF WHICH WAS TAKEN BY THE DEPARTMENT FROM TRANSWORLD I CT SOLUTIONS PVT. LTD ., BANGALORE. I T DOES NOT BEAR ANY AUTHENTICATION OR SIGNATURES . 2. A NNEXURE - A - 02: CORPORATE BANKING ACCOUNT APPLICATION FORM BE ARING THE SIGNATURE OF SH. RAVINDER DATTA DATED 18.11.2005. THIS IS A DOCUMENT TAKEN BY THE DEPARTMENT FROM TRANSWORLD ICT SOLUTIONS PVT. LTD. BANGALORE. IT DOES NOT BEAR ANY AUTHENTICATION OR SIGNATURES. THE SIGNATURES O N THE FORM ARE NOT SIGNATURES OF MR . ITA NOS. 430 & 431/DEL/2011 UNITED REFRIGERATION & INDUSTRIES 7 RAVINDRA DUTTA BUT HIS FORGED SIGNATURES. FIR FILED BY ASSESSES, FORENSIC EXPERT REPORT ALSO SUBMITTED BY THE ASSESSEE BEFORE THE CIT[A] . 3. ANNEXURE - A - 03: COMPANY HISTORY QUESTIONNAIRE. THIS IS A DOCUMENT TAKEN BY THE DEPARTMENT FROM TRANSWORL D ICT SOLUTIONS PVT. LTD. BANGALORE. IT DOES NOT BEAR ANY AUTHENTICATION OR SIGNATURES. THE ASSESSEE DENIES HAVING SUBMITTED IT . 4. ANNEXURE - A - 04: FORM I REGARDING EXPECTED WIRE TRANSFER ACTIVITY. THIS IS A DOCUMENT TAKEN BY THE DEPARTMENT FROM TRANSWORLD ICT S OLUTIONS PVT. LTD. BANGALORE. IT DOES NOT BEAR ANY AUTHENTICATION OR SIGNATURES. THE ASSESSES DENIES HAVING SUBMITTED IT . 5. ANNEXU RE - A - 05: SAMPLE FORM OF CERTIFICATION OF LEGAL COMPLIANCE THIS IS A DOCUMENT TAKEN BY THE DEPARTMENT FROM TRANSWORLD ICT SOL UTIONS PVT. LTD. BANGALORE. IT DOES NOT BEAR ANY AUTHENTICATION OR SIGNATURES. THE ASSESSES DENIES HAVING SUBMITTED IT . 6. ANNEXURE - A - 06: PARTNERSHIP DEED OF THE FIRM. TH IS IS A DOCUMENT TAKEN BY THE DE APARTMENT FROM TRANSWORLD ICT SOLUTIONS PVT. LTD. BA NGALORE. THIS IS A COPY OF THE PARTNERSHIP DEED OF THE ASSESSEE BUT THE ASS ESSEE DENIES HAVING SUBMITTED IT TO TRANSWORLD ICT SOLUTIONS PVT. LTD. BANGALORE AND /OR FIRST CURACAO BANK. IT MAY HAVE BEEN TAKEN IN A UNAUTHORIZED MANNER FROM SOME OTHER SOURCE . 7. ANNEXURE - A - 07: COPY OF BANK STATEMENT (ACCOUNT NUMBER - 20172) OF M/S UNITED REFRIGERATION & INDUSTRIES IN BANK OF INDIA P AHARGANJ. THIS IS A DOCUMENT TAKEN BY THE DEPARTMENT FROM TRANSWORLD ICT SOLUTIONS PVT. LTD. BANGALORE. THIS IS A COPY OF THE BANK STATEMENT OF THE ASSESSEE BUT THE ASSESSEE DENIES HAVING SUBMITTED IT TO TRANSWORLD ICT SOLUTIONS PVT. LTD. BANGSLORE AND /OR FIRST CURACAO BANK. IT MAY HAVE BEEN TAKEN IN A UNAUTHORIZED MANNER FROM SOME OTHER SOURCE . 8. ANNEXURE - A - 08: VAT RETURN ACKNOWLE DGEMENT FORM OF M/S THIS IS A DOCUMENT TAKEN B Y THE DEPARTMENT FROM TRANSWORLD ICT ITA NOS. 430 & 431/DEL/2011 UNITED REFRIGERATION & INDUSTRIES 8 UNITED REFRIGERATION & INDUSTRIES SOLUTION S PVT. LTD. BANGALORE. THIS IS A COPY OF THE VAT RETURN OF THE ASSESSEE BUT THE ASSESSEE DENIES HAVING SUBMITTED IT TO TR ANSWORLD I CT SOLUTIONS PVT. LTD . BANG ALORE AND /OR FIRST CURACAO BANK. IT MAY HAVE BEEN TAKEN IN A UNAUTHORIZED MANNER FROM SOME OTHER SOURCE . 9. ANNEXURE - A - 09: SALES TAX RETURN OF M/S UNITED REFRIGERATION AND INDUSTRIES ATTESTED ON 9.11.2005 THIS IS A DOCUMENT TAK EN BY THE DEPARTMENT FROM TRANSWORLD ICT SOLUTIONS PVT. LTD. BANGALORE. T H IS IS A COPY OF THE SALES TAX RETURN OF THE ASSESSEE BUT THE ASSESSES DENIES HAVING SUBMITTED IT TO T RANSWORLD ICT SOLUTIONS PVT. LTD. BANGALORE AND /OR FIRST CURACAO BANK. IT MAY HA VE BEEN TAKEN IN A UNAUTHORIZED MANNER FROM SOME OTHER SOURCE . 10. AMIEXURE - A - 1 0: COPY OF PAN OF M/S UNITED REF RIGERATION AND INDUSTRIES ATTESTED ON 9.11.2005 THIS IS A DOCUMENT TAKEN BY THE DEPARTMENT FROM TRANSWORLD ICT SOLUTIONS PVT . LTD. BANGALORE. TH IS IS A COPY OF THE PAN OF THE ASSESSEE BUT THE ASSESSEE DENIES HAVING SUBMITTED IT TO TRANSWORLD ICT SOLUTIONS PVT. LTD. BANGALORE AND /OR FIRST CURACAO BANK. I T MAY HAVE BEEN TAKEN IN A UNAUTHORIZED MANNER FROM SOME OTHER SOURCE . 11. ANNEXURE - A - 11: COPY OF INCOME TAX RETURN OF SH. RAVINDER DATTA AND M/S UNITED REFRIGERATION AND INDUSTRIES FOR THE A.Y 2005 - 06 ATTESTED ON 9.11.2005 THIS IS A DOCUMENT TAKEN DEPARTMENT FROM TRANSWORLD SOLUTIONS PVT. LTD. BANGALORE. THIS COPIES OF TAX RE TURNS ETC BUT THE ASSE SSEE DENIES HA VI NG SUBMITTED IT TO TRANSWORLD ICT SOLUTIONS PVT. LTD. BANGALORE AND /OR FIRST CURACAO BANK. IT MAY HAVE BEEN TAKEN IN A UNAUTHO RIZED MANNER FROM SOME OTHER SOURCE. 12. ANNEXURE - A - 12: FORM OF BENEFIC AL OWNERSHIP DECLARATION OF M/S UNITED R EFRIGERATION AND INDUSTRIES THIS IS A DOCUM ENT TAKEN BY THE DEPARTMENT FROM TRANSWORLD ICT SOLUTIONS PVT. MD. BANGALORE. IT DOES NOT BEAR ANY AUTHENTICATION OR SIGNATURES. THE A SSESSEE DENIES HAVING SUBMITTED IT . 13. ANNEXURE - A - 13: AN EMAIL FROM E LLYANNE SALE S RESIDENT THIS IS A DOCUMENT TAKEN BY THE DEPARTMENT FROM TRANSWORLD ICT ITA NOS. 430 & 431/DEL/2011 UNITED REFRIGERATION & INDUSTRIES 9 COMPLIANCE OFFICER , FIRST CURACAO INTERNATIONAL BANK N.V TO' RAVINDERDATTA @HOTMAIL.COM SOLUTIONS PVT. LTD. BANGALORE. IT DOES NOT BEAR ANY AUTHENTICATION OR SIGNATURES. THE AS SESSEE DENIES HAVING OPERATED A N E - MAIL WITH SUCH A NAME. NO SUCH E - MAIL OR EMAIL ADDRESS WERE FOUND FROM THE COMPUTER FOUND AT THE PREMISES OF THE APPELLANT WHICH WAS SEIZED BY THE DEPARTMENT . 14. ANNEXURE - A - 14: COPY OF PASSPORT AND PAN COPY OF MR. RAVE NDER DATTA ATTESTED ON 9.11.2005 THIS IS A DOC UMENT TAKEN BY THE DEPARTMENT FR OM TRANSWORLD ICT SOLUTIONS PVT. LTD. BANGALORE, THESE ARE COPIES OF PASSPORT ETC BUT THE A S SESSEE DENIES HAVING SUBMITTED IT TO TRANSWORLD ICT SOLUTIONS PVT. LTD. BANGALORE AN D /OR FIRST CURACAO BANK . I T MAY HAVE BEEN T AKEN IN A UNAUTHORIZED MANN ER FROM SOME OTHER SOURCE . 15. ANNEXURE - A - 16: LETTER OF TRUST AND RELIABILITY ISSUED BY U.K. PROPERTIES (SERVICES), LTD. , 89, WHITEHORN ROAD , YIEWLSEY, WEST DRAYTON MIDDLESEX , UB78LA THIS IS A DOCUMENT TAKEN BY THE DEPARTMENT FROM TRANSWORLD ICT SOLUTIONS PVT. LTD. BANGALORE. IT DOES NOT BEAR ANY AUTHENTICATION OR SIGNATURES. THE ASSESSEE DENIES HAVING SUBMITTED IT . 16. ANNEXURE - A - 17: LETTER OF TRUST AND RELIABILITY ISSUED BY U.K. FR OZEN FOOD, 20 TH FLO OR WEMBLEY POINT, 1 HARROW ROAD, WEMBLEY, MIDDLESEX , HA96DE THIS IS A DOCUMENT TAKEN BY THE DEPARTMENT F ROM TRANSWORLD ICT SOLUTIONS PVT . LTD. BANGALORE. IT DOES NOT BEAR ANY AUTHENTICATION OR SIGNATURES. THE ASSESSEE DENIES HAVING SUBMI TTED IT . 17. ANNEXURE - A - 19: LETTER OF GOOD STANDING GIVEN BY PA UL BAILEY VICE PRESIDENT , TRANSWORLD PAYMENT SOLUTIONS LIMITED THIS IS A DOCUMENT TAKEN BY THE DEPARTMENT FROM TRANSWORLD ICT SOLUTIONS PVT. LTD. BANGALORE. IT DOES NOT BEAR ANY AUTHENT ICATION OR SIGN ATURES. IT IS APPARENTLY ISSUED , BY TRANSWORLD ITSELF. THE ASSESSEE DENIES HAVING SUBMITTED IT . 18. ANNEXURE - A - 20: AUDITED CONSOLI DATED INCOME STATEMENT OF M/S UNITED REFRIGERATION AND INDUSTRIES FOR THE DIFFERENT ASSESSMENT YEAR TAKEN FROM THE DATA BANK THIS IS A DOCUMENT TAKEN BY THE DEPARTMENT FROM TRANSWORLD ICT SOLUTIONS PVT. LTD. BANGALORE . IT BEARS THE SIGNATURES OF A FIRM OF CHARTERED ACCOUNTANTS BUT DO ES NOT BEAR ANY SIGNATURES OF THE APPELLANT. ITA NOS. 430 & 431/DEL/2011 UNITED REFRIGERATION & INDUSTRIES 10 OF TRANSWORLD SOLUTIONS PVT. LTD. DURING THE SEARCH IN I TS PREMISES ON 19.12.2006 THE APP ELLANT DECLARES THAT IT HAS NEVE R DEALT WITH SUCH A FIRM OF CHARTERED ACCOUNTANTS. FURNER TH E FORMAT OF THE ACCOUNTS IS ALSO DIFFERENT FROM THE FORMAT USED IN INDIA. THE ASSESSEE DENIES HAVING SUBMITTED I T . 19. ANNEXURE - A - 21: SPECIAL TEST KEY - 4304 FOR GENERATING THE TEST KEY FOR OPERATING THE E - BA NKIN G ACCOUNT THIS DOCUMENT CAME TO THE ADDRESS OF THE APPELLANT. IT IS A COMMON FEATURE THAT PUBLIC RECEIVE A NUMBER OF COMMUNICATIONS OFFERING LOANS, MONEY M AKING DEALS AND HUGE PRIZE MONEYS ETC. THE APPELLANT CONSIDERED IT TO BE A COMMUNICATION OF SUCH NATURE A ND LEFT IT. IT IS TO BE NOTED THAT THE COMMUNICATION DOES NOT BEAR ANY ADDRESS OF THE SENDER EVEN TO ENABLE THE APPELLANT MAKE ANY CORRESPONDENCE ON TH E M. 20. ANNEXURE - A - 22: PASSWORD UEVV 2468 FOR OPERAT ING THE E - BANKING ACCOUNT IN FI RST CURACAO INTERNATIONAL BANK. N.V.(FICB) 6 . APART FROM THE ABOVE, THE ASSESSEE ALSO FURNISHED THE WRITTEN SUBMISSIONS WHICH HAS BEEN INCORPORATED IN PARA 4.2 AT PAGE NO. 28 TO 34 OF THE IMPUGNED FOR, FOR THE COST OF REPETITION, THE SAME IS NOT REPRODUCED HEREIN. 7 . THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE CONFIRMED THE ADDITION MADE BY THE AO BY OBSERVING IN PARAS 5 & 6 OF THE IMPUGNED ORDER WHICH READ AS UNDER: 5. I HAVE CONSIDERED THE SUBMISSION MADE BY THE APPELLANT AND EVIDENCE PLACED ON RECO R D AS WELL AS DOCUMENTS FOUND DURING THE SEARC H OPERATION ON THE APPELLANT AND , M/S TRANSWORLD ICT SOLUTIONS PVT. LTD. IN THE INSTANT CASE, THE ASSES SING OFFICER HAD MADE THE ADDITION OF RS. 15,41,40,768/ - BY HOLDING THAT APPELLANT FIRM HAS ITA NOS. 430 & 431/DEL/2011 UNITED REFRIGERATION & INDUSTRIES 11 INCO ME FOR E - TRADING ACTIVITIES. THE BASIS ADOPTED BY THE LEARNED ASSESSING OFFICER TO MAKE THE ADDITION IS THAT, THERE IS EVIDENCE FOUND IN THE COURSE OF SEARCH OF M/S TRANSWO RL D ICT SOLUTIONS PVT. LTD. AND, THE APPELLANT THAT IT WAS HAVING A BANK ACCOUNT WITH THE FIRST CURACAO BANK AN INTERNET BANK REGISTERED IN THE NETHERLAND ANTILLES. IN THE SAID INTERNET ACCOUNT, IT WAS SEEN THAT DURING THE PERIOD 5.1.2006 TO 7 . 07 .2006 THAT TOTAL VALUE OF CREDIT ENTRIES APPEARING DURING THE SAID PERIOD IN THE ACCOUNT IN BRITISH POUNDS 959120658. THE TOTAL DEBIT ENTRIES APPEARING IN THE ACCOUNT ARE BRIT ISH POUNDS 959112966 WHICH INCLUDES WIRE TRANSFER TO THE TUNE OF BRITISH POUNDS 411456746. IT WAS FURTHER SEEN THAT MONEY WAS BEING CREDITED INTO THE ACCOUNT OF UNITED REFRIGERATION, INDIA FROM COMPANIES SUCH AS M /S ULTIMATE SECURITY AGENCY LTD., M/S WORLDWIDE U.K. IMPORT A ND EXPORT LTD., THE SATELL ITE HOUSE LTD., GLOBA LEX LTD . WHICH WERE ALL BASED IN THE UNITED KINGDOM. AGAI NST TH ESE CREDITS THERE WERE ALMOST SIMULTANEOUS DEBITS OF APP ROXIMATELY THE SAME AMOUNTS IN FAVOUR OF FOREIGN COMPANIES SUCH AS GOLDEN DATE SL, KOROWAI BUSINESS INVEST SI, SIYAH YAXILIM LTD, AMBER TELECOM WHICH W ERE BASED IN SPAIN, TURKEY AND THE UAE. HOWEVER, THE APPELLANT BOTH IN THE COURSE OF ASSESSMENT PROCEEDINGS AND APPEAL PROCEEDINGS HAS DENIED THE EXISTENCE OF THE ACCOUNT. ACCORDING TO THE APPELLANT, THE DOCUMENTS SEIZED FROM THE PREMISES OF M/S TRANSWORLD ICT SOLUTIONS PVT. LTD. CANNOT BE RELIED UPON WITHOUT CRO S S E XAMINATION OF DIRECTOR OF M/S TRANSWORLD ICT SOLU TIONS PVT. LTD . , IT HAS BEEN CONTENDED THAT THE FAILURE OF THE DIR ECTOR TO ITA NOS. 430 & 431/DEL/2011 UNITED REFRIGERATION & INDUSTRIES 12 APPEAR BEFORE THE LEAR NED OFFICER SHOWS THAT THE EVIDENCE CANNOT BE RE LIED UPON A N AFFIDAVIT SUPPORTED BY REPORT OF HANDWRITING EXPERT HAS ALSO BEEN PLACED ON R ECORD TO SUBMIT THAT SIGNATURE O N THE BANK OPENING FORMS AND OTHER DOCUMENTS OF THE PARTNER OF THE APPELLANT FIRM ARE FORGED SIGNATURES. IT HAS BEEN CONTENDED THAT AC TIVITIES IF M/S TRANSWORLD ICT SOLUTIONS PVT. LTD. WERE CONDUCTED IS AN ILLEGAL MANNER AND THEREFORE CANNOT BE RELIED UPON. IT HAS ALSO BEEN SUBMIT T ED THAT, ROT A SING E RUPEE OR INCOME HAS COME TO THE PARTNERS OR THE APPELLANT FIRM. IN OTHER WORDS, AS A R ESULT OF SEARCH NO ASSETS HA VE BEEN FOUND TO SUPPORT SUCH A HUGE ADDITION. AS REGARDS, THE DOCUMENTS FOUND BELONGING TO THE PARTNER FROM M/S TRANSWORLD ICT SOLUTIONS PVT. LTD., IT WAS SUBMITTED THAT, THE SAME C ANNOT BE RELIED UPON AS THEY M AY HAVE BEEN SUB MITTED TO SOME OTHER PERSON AUTHORITY AND THIRD PERSON HAS UTILIZED THEM IN THE UNAUTHORIZED MANNER. IN FA CT, IT HAS ALSO BEEN STATED THAT SINCE THE PERSON OPENING TH E ALLEGED ACCOUNT DID NOT HAVE THE PAPERS RELATING TO MR. AJAY LAMBA THE OTHER PARTNER, HE MAY HA VE GOT THE ACCOUNT OPENED IN AN UNAUTHORIZED MANNER FOR WHICH THE FIRST CURACAO BANK AND /OR TRANSWORLD ICT SOLUTIONS P VT. LTD. BANGALORE HAVE CONNIVED WITH HIM. FURTHER AS R EGARDS THAT TWO COMMUNICATIONS/ LETTERS CONTAINING THE KEY NUMBER AND THE PA SSWORDS RECEIVED BY THE APPELLANTS, IT HAS BEEN NOTED THAT, IT DID NOT HAVE ANY ADDRESS OF THE PERSON SEND ING IT IN ORDER TO GIVE CREDENCE AND /OR TAK E ANY FURTHER ACTION ON THEM. THUS THEY WERE DEEMED TO BE SOME SORT OF ANONYMOUS LETTERS. ITA NOS. 430 & 431/DEL/2011 UNITED REFRIGERATION & INDUSTRIES 13 5.1 FROM THE A FORESAID SUBMISSION IT IS EVIDENT THAT, THE APPELLANT AS NOT LED ANY MATERIAL ( TANGIBLE OR OTHERWISE) TO ESTABL ISH THA T THE CONCLUSION DRAWN BY THE LEARNED OFFICER ON THE BASIS OF EVIDENCE FOUND AS A RESULT OF SEARCH IS NOT TENABLE. AT THIS JUNCT URE, IT IS APPROPRIATE TO AG AIN LIST OUT THE EVIDENCE WHICH CLEARLY DEMONSTRATE APPELLANT HAD A BANK ACCOUNT AN D INCOME THEREFROM IS THE INCOME OF THE APPELLANT: 1. PHOTOCOPY OF BANK STATEMENTS OF M/S UNITED REFR IGERATION AND INDUSTRIES IN FIRS T CURACAO BAN K LIMITED, SHOW BOT H CREDIT AND DEBIT ENTRIES TO THE TUNE $1.2 BILLION WITH FR OM THE PERIOD BETWEEN 5.1.2006 AND 7.7.2006. 2. CORPORATE BANKING ACCOUNT APPLICATION FORM WHICH BEARS THE SIGNATURE O F SH. RAVEN DER DATTA . 3. COMPANY HISTORY QUESTIONNAIRE WHICH BEARS THE DETAIL S RELATING TO THE BUSINESS ACTIVITIES OF THE FIRM . 4. FORM REGARDING EXPECTED WIRE TRANSFER ACTIVITY WHICH BEARS THE NAME OF THE IMPORTANT COUNTRIES UNDER BOTH THE HEADS NAMELY INCOMING WIRE TRANSFE R AND OUTGOING WIRE TRANSFER. 5. SAMPLE FORM OF CERTIFICATION OF LEGAL COMPLIANCE IS AN UNDERTAKING SIGNED BY SH. RAVEND ER DATTA STATING THAT THE FIRM SHALL COMPLY W ITH THE LAWS OF UNITED KINGDOM AND INDIA . 6. PARTNERSHIP DEED OF THE FIRM IS THE COPY OF THE PARTNERSHIP DEED SIGNED BY ALL THE THREE PARTNERS . ITA NOS. 430 & 431/DEL/2011 UNITED REFRIGERATION & INDUSTRIES 14 7. PHOTOCOPY OF B ANK STATEMENT WHICH BEARS THE CREDIT AND DEBIT ENTRIES OF THE FIRM FOR THE RELEVANT PERIOD. 8. VAT RETURN ACKNOWLEDGEMENT WHICH BEARS THE SIGNATURE OF SHRI RAVENDER DATTA . 9. SALES TAX RETURN IS ATTESTED BY THE NOTARY, NEW DELHI. 10. PHOTOCOPY OF PAM IS ATTESTED BY NOTARY, NEW DELHI . 11. PHOTOCOPY OF INCOME TAX RETURN IS ATTESTED BY THE NOTARY, NEW DELHI . 12. FORM OF BENEFICIAL OWNERSHIP DECLARATION O F M/S UNITED REFRIGERATION & IN DUSTRIES WHICH APPOINTS SH. RAVENDER DATTA AS THE REPRESENTATIVE OF THE CLIENT. 13. COPY OF E - MAIL FROM ELLYANNE SALAS, RESIDENT COMPLIANCE OFFICER OF FIRST CURACAO INTERNATIONAL BANK TO SH. RAVINDER DATTA IS A REQUEST TO SH. RAVENDER DATTA TO PROVIDE THE MISSING DOCUMENTS FOR THE E - BANKING ACCOUNT . 14. PHOTOCOPY OF PASSPORT OF SH. RAVDER DATTA AND PAN COP Y OF SH. DANA ATTESTED ON 9.11.2005 IS AT TESTED BY THE NOTARY, NEW DELHI . 15. COPY OF ELECTRICITY BILL IS ATT ESTED BY THE NOTARY, NEW DELHI. 16. LETTER OF TRUST AND REL IABILITY ISSUED BY U.K. PROPERTI ES(SERVICES) LTD ., 89, WHITETHORN ROAD, YIEWLSEY, WEST DRAYATON MIDDLESEX, UB7 8LA IS IN FAVOUR OF M/S UNITED REFRIGERATION AND INDUSTRIES . 17. LETTER OF TRUST AND RELIABILITY ISSUED BY U.K. FROZEN FOOD, 20 TH FLOOR, WEMBLEY POINT, 1 HARROW ROAD, WEMBLEY, MIDDL ESEX, HA96DE IS IN FAVOUR OF M/S UNITED REFRIGERATION AND INDUST RIES . ITA NOS. 430 & 431/DEL/2011 UNITED REFRIGERATION & INDUSTRIES 15 18. GOOD CONDUCT CERT IFICATE GIVEN BY THE BANK OF IN DIA, PAHARGANJ, DELHI BRANCH IN FAVOU R OF M/S UNITED REFRIGERATION & INDUSTRIES IS IN FAVOUR OF M/S UNITED REFRIGERATION AND INDUSTRIES. 19. LETTER OF GOOD STANDING GIVEN BY PAUL BAILEY, VICE PRE SIDENT, TRA NSWORLD SOLUTIONS PVT . LTD. IN FAVOUR OF SH. RAVINDER DATTA OF M/S UNITED REFRIGERATION AND INDUSTRIES IS IN FAVOUR OF SHRI RAVENDER DATTA OF M/S UNITE D REFRIGERATION AND INDUSTRIES . 20. AUDITED CONSOLIDATED INCOME STATEMENT OF M/S UNITED REFRIGERATION &, INDU STRIES WHICH BELONGS TO M /S UNITED REFRIGERATION AND IN IND USTRIES . 21. SPECIAL TEST KEY - 4304 FOR GENERATING THE TEST KEY FOR OPERATING THE E - BANKING ACCOUNT WHICH TELLS THE PROCEDURE TO GENERATE THE TEST KEY BY USING THE SPECIAL TEST KEY DATED 30.12.200 5. 22. PAS SWORD; UEVV2468 FOR THE OPERATING THE E - BANKING ACCOUNT IN FIRST CURACAO INTERNATIONAL B ANK N. V. (FICB) WHICH GIVES THE PA SSWORD FOR OPERATING THE ACCOUNT DATED 30.12.2005 . 23. LOAN AGREEMENT BETWEEN MR.: AJAIB S I NGH OWNER OF WISEBERRY SERVICES LIMITED, UK AN D SH. RAVENDER DATTA OWNER OF M/S UNITED REFRIGERATION AND INDUSTRIES, INDIA WHICH IS A CORRESPONDING WIRE TRANSFER ENTRY IN THE BANK ACCOUNT OF M/S UNITED REFRIGERATION AND INDUSTRIES IN FICB ON 27 TH MARCH 20 06 FOR THE ABOVE AMOUNT. ' 5.2 ALL WHAT THE APP ELLANT HAS PLACED ON RECORD IS AN AFFIDAVIT AND COPY OF THE HANDWRITING EXPERT. ITA NOS. 430 & 431/DEL/2011 UNITED REFRIGERATION & INDUSTRIES 16 THESE DOCUMENTS DO NOT REBUT THE SUBSTANTIVE EVIDENCE GATH ERED BY THE REVENUE BOTH FROM TH E PREMISES OF THE APPELLANT AND THE PREMISES OF M/S TRA NSWORLD ICT SOLUTIONS PVT. LTD. IN FACT, THE LEARNED OFFICER H AS RIGHTLY HIGHLIGHTED THAT DENIAL OF SHRI RAVENDER DATTA CANNOT BE ACCEPTED IN LIGHT OF SEIZURE OF LETTER DATED 30.12.2005 FROM THE FIRST CUR A CAO INTERNATIONAL BANK ADDRESSED TO RAVENDER DATTA FROM THE RESIDENCE OF SHRI DATT A DURING THE COURSE OF SEARCH INFORMING HIM ABOU T THE ACCEPTANCE OF APPLICATION FOR THE OPENING OF THE ACCOUNT OF UNITED REFRIGERA TION & INDUSTRIES WITH THE BANK. THE LETTERS GIVE THE SPECIAL T EST KEY NUMBERS AND THE INTERNE T BANKING PASSWORD FOR THE OPERA TION OF THE INTERNET BANKING ACCOUNT OF UNITED REFRIGERATION & INDUSTRIES WITH THE FIRST CURACAO BANK. THE LETTERS INFORMING SHRI RAVENDER DATTA OF THE INTERNET BANKING PASSWORD FO R OPERATING OF THE INTERNET BANK ACCOUNT IS CLEAR EVIDENCE OF SHRI RAVENDER DATA'S INVOLVEMENT. THIS IS SO BECAUSE DUE TO SECURITY REASONS, THE INTERNET BANKING USED ID AND PASSWORD ARE SENT BY SEPARATE LETTERS BY POST, ONLY TO THE AUTHORIZED USER OF THE ACCOUNT. IT IS LIKE THE PIN NUMBER OF A DEBIT CARD WHICH IS SENT SPECIALLY BY POST TO THE OWNER OF THE DEBIT CARD. THEREFORE, IN THIS CASE SINCE SH. RAVENDER DATTA WAS THE AUTHORIZED USER THE ACCOUNT, THE INTER NET BANKING PASSWORD AND USER ID /TEST KEYS WOULD HAVE BEEN SENT ONLY TO HIM AND NO ONE EL SE. SINCE IT IS APPARENT THAT H UGE TRANSACTIONS HAVE BEEN CARRIED ON THROUGH THE SAID BANK ACCOUNT, AND SINCE ONLY MR. RAVENDER DATTA WAS AWARE OF THE INTERNET BANKING PASSWORD/TEST KEY NEEDED FOR THE OPERATION OF THE ACCOUNT, IT IS OBVIOUS THAT SHRI RAVEN DER DATTA ITA NOS. 430 & 431/DEL/2011 UNITED REFRIGERATION & INDUSTRIES 17 EITHER OPERATED THE ACCO UNT ON HIS OWN AND CARRIED ON THE INTERNET TRADING ACTIVITY OR ELSE PASSED ON THE INFORMATION TO SOMEONE ELSE TO EN ABLE ITS OPERATION. IN EITHER CA SE, SHRI RAVENDER DATTA HAD FULL KNOWLEDGE OF THE FACT THAT AN INTERNET BANK ACCOUNT, HAD BEEN OPENED, AND TH E FACT THAT E - TRADING ACTIVITY WAS BEING CARRIED ON THROUGH THE SAME. ALSO, LOAN AGREEMENT BETWEEN RAVENDER DATTA AND ONE SHRI AJAIB SINGH, PROPRIETOR OF WISEBERRY SERVICE U. K. WAS FOUND FROM THE REGISTERED OFFICE OF UNITED REFRIGERATION & INDUSTRIES. AS PER THE AGREEMENT, SHRI DATTA HAS ADVANCED A LOAN OF BRITISH POUNDS 150000 TO SHRI AJAIB SINGH OF U. K. AT THE RATE OF INTEREST OF 9% AS OWNER OF M/S UNITED REFRIGERATION AND INDUSTRIES. THIS AGREEMENT WAS PRODUCED BY SHRI AJAY LAMBA, THE OTH ER PARTNER OF UNITED REFRIGERATION AND INDUSTRIES WHO SAID THAT IT HAD ARRIVED BY POST SOME MONTHS AGO AND HE HAD INFORMED SH. RAVENDER DATTA ACCORDINGLY. AS PER THE BANK STATEMENT OF UNITE D REFRIGERATION WITH THE FIRST CURACAO BANK IT IS SEEN THAT WHEN THE DIFFERENCE B ETWEEN THE DEBITS AND CREDITS (INCOME OF UNITED) BECOMES SUBSTANTIAL, THIS IS TRANSFERRED OUT OF THE ACCOUNT THROUGH WIRE TRANSFER. THE LOAN AGREEMENT BETWEEN RAVENDRA DATTA AND AJAIB SINGH REPRESENTS ONE SUCH WIRE TRANSFER WHICH IS DONE ON 28.03.2006. 5. 3 IN LIGHT OF THE ABOVE CLINCHING EVIDENCE NO CREDENCE CAN BE GIVEN TO THE GENERAL STATEMENTS MADE BY THE APP ELLANT. INFACT THE STATEMENT OF SHRI AJAY L AMBA ONE OF THE PARTNER OF THE APPELLANT FIRM RECORDED ON 24.01.2007 SUPPORTS THE CONCLUS ION THE APPELLA NT FIRM HAD A BANK ACCOUNT ITA NOS. 430 & 431/DEL/2011 UNITED REFRIGERATION & INDUSTRIES 18 WHICH WAS INVOLVED IN E - TRADING ACTIVITIES. THE JUDGMENTS RELIED UPON ARE TOTALLY INAPPLICABLE AS THE PAPERS FOUND FRO M THE RESIDENCE OF THE ASSESSEE ARE NO SHEAF OF PAPERS BUT DOCUMENTS HAVING INDEPEN DENT EVIDENTIARY VALUE BY THEMSELVES TAKEN FROM AN AUTHENTICATED SOURCE. THE FACT WHICH REINFORCES THE ABOVE FINDING IS THE RECOVERY OF TEST KEY AND PASSWORD FROM THE RESIDENCE OF THE AUTHORIZED REPRESENTATIVE OF THE FIRM SH. RAVENDER DATTA. MOREOVER, THE LOAN AGREEMENT WHICH WAS FOUND FROM THE REGISTERED OFFICE OF THE ASSESSEE IS BACKED BY A WIRE TRANSFER ENTRY IN THE HANK ACCOUNT OF THE ASSESSEE IN FIRST CURACAO INTERNATIONAL BANK N.V . INFACT, FEW OF THE DOCUMENTS DO NOT BEAR SIGNATURE OF ALL THE PARTNERS IS OF NO CONSIDERATION A S IT IS NOT A REQUIREMENT OF LAW THAT ALL PARTNERS MUST SIGN ALL THE DOCUMENTS INCLUDING LOAN AGREEMENT. ON THE CONTRARY, ELEMENT OF PARTNERSHIP IS AN EXTENSION OF PRINCIPLE OF AGENCY. IT APPEARS THAT, THE APPELLANT FIRM HAS ATTEMPTED TO SHIFT THE BURDEN O N ONE OF THE PARTNERS NAMELY SHRI AJAY LAMBA WHEN IT SUBMITS THAT HE MAY HAVE GOT THE ACCOUNT OPENED IN AN UNAUT HORIZED MANNER FOR WHICH FIRST C URA CAO BANK AND/OR M/S TRANSWORLD I CT SOLUTIONS PVT. LTD. HAVE CONNIVED WITH HIM. THIS SUBMISSIONS ITSELF DEMONS TRATES THE STANDS OF THE APPELLANT IS CONTRADICTORY AND, ESTABLISHES THAT, THE ENTIRE SUBMISSION ARE BASED ON HYPOTHETICAL GROUNDS AND DIVORCED FROM MATERIAL EN RECORD. THE FILING OF CRIMINAL COMPLAINTS DO NOT SHIFT THE BURDEN AND HENCE THE SU BMISSIONS MAD E ARE ALTOGETHER UN RELI ABLE AND NOT SUSTAINABLE. THE APPELLANT IN THE CONCISE GROUNDS HAS ALSO RAISED A CONTENTION THAT THERE ARE AIRTHMATHETICAL ERROR IN ITA NOS. 430 & 431/DEL/2011 UNITED REFRIGERATION & INDUSTRIES 19 THE ADDITION BUT NO SUBMISSIONS HAVE BEEN MADE IN THIS REGARD AND THEREFORE SAME IS REJECTED. IN LIGH T OF THE AFORESAID, THE ADDITION MADE BY THE LEARNED OFFICER OF RS . 15,41,40,768/ - IS CONFIRMED THE AFORESAID FINDINGS THUS DISPOSE OF GROUND NOS . 1 TO 4 OF CONCISE GROUNDS OF APPEAL. 6. GROUND NO. 5 OF THE CONCISE GROUNDS OF APPEAL IS REGARDING DISALLOWAN CE OF RS. 36,300/ - . THE ASSESSING OFFICER HAS HELD IN THIS REGARD AS UNDER: 'IN THE RETURN OF INCOME FILED FOR THE ASSESSMENT YEAR 2006 - 07 IN RESPONSE TO NOTICE U/S 153A THE ASSESSEE HAS SHOWN A LOSS OF RS. ( - 4540). HOWEVER THE PROFIT AND LOSS ACCOUNT ATTA CHED WITH THE RETURN OF INCOME SHOWS DIFFERENT FIGURES. IN THE RECE IPT SIDE ASSESSES HAS SHOWN RS. 1,25,552 AS SERVICE CHARGE AND VA RIOUS EXPENSES AMOUNTING TO RS. 1,20,983/ - HAVE BEEN DEBITED TO THE PROFIT AND LOSS ACCOUNT. THE PROFIT A ND LOSS ACCOUNT FILED ALONGWITH TH E RETURN SHOWS AN INCOME OF RS. 4,569 INSTE AD OF LOSS OF RS. ( - 4540) WHICH THE ASSESSEE HAS SHOWN IN THE R ETURN OF INCOME. HENCE INCOME OF THE ASSESSEE AS PER THE PROFIT A ND LOSS ACCOUNT IS TAKEN AS RS. 4,569 AND NOT RS. ( - 4540). THE ASSESSEE WA S ASKED VIDE NOTICE U/S 142 DATED 20.11.2008 TO PRODUCE THE BOOKS OF ACCOUNT IN SUPPORT OF ITS CLAIM OF EXP ENSES MADE TO EARN THE ABOVE INCOME. ANOTHER OPPORTUNITY WAS GIVEN THROU GH ORDER SHEET ENTRY DATED 10.12.2008 FOR PRODUCING THE BOOKS OF ACCOUNT. THE ASSESSEE HAS FAILED IN BOTH THE OCC ASIONS TO PRODUCE THE SAME. ITA NOS. 430 & 431/DEL/2011 UNITED REFRIGERATION & INDUSTRIES 20 IN THE LIGHT OF ABOVE FACTS 1 /5 LH OF ALL THE EXPENSES SHOWN IN THE PROFIT AND LOSS ACCOUNT AMOUNTING TO RS. 36,300/ - HAS BEEN DISALLOWED AS BEING NOT INCURRED FOR THE P.. POSES OF THE BUSINESS AND ADDED BACK TO IN COME FOR THE RELEVANT ASSESSMEN T YEAR. 8 . NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE FURNISHED AN APPLICATION DATED 14.06.2014 UNDER RULE 29 OF THE ITAT RULES, 1963 STATING THEREIN AS UNDER: SUB - REQUEST FOR AD MISSION OF ADDITIONAL EVIDENCE UNDER RULE 29 OF ITAT RULES 1963 WITH REFERENCE TO THE ABOVE, THE ASSESSEE MOST HUMBLY PRAYS AS UNDER - 1. THE ASSESSMENT IN THE ABOVEMENTIONED CASE WA S COMPLETED AT AN INCOME OF RS.1 5,41,86,913/ - AGAINST RETURNED NIL INCOME U/S 153A R.W.S 143(3) OF THE INCOME TAX ACT 1961 BY THE ASTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 7, NEW DELHI. 2. INTER ALIA, ADDITION WAS MADE IN THE HANDS OF THE ASSESSEE, TO THE TUNE OF RS.1 5,41,40,768/ - BY TREATING UNDISCLOSED INVESTMENT U/ S 69. THE BASIS OF THE BANK ACCOUNT ALL E GED IN THE NAME OF THE ASSESSE E FIRM IN FIRST CURACAO BANK, NV. 3. THE APPELLANT COULD NOT THE FOLLOWING DOCUMENTS AS EVIDENCES BECAUSE THE SAME WERE NOT IN ITS POSSESSION. THIS DOCUMENT HAS BEEN OBTAINED AFTER PERS ISTENT FOLLOW UPS AND REQUEST BY THE ASSESSE E WITH THE HELP OF HIS BROTHER SH. RAJESH DUTTA, WHO IS A BRITISH NATIONAL. THE LIST OF DOCUMENTS IS AS FOLLOWS: I) LETTER RELATING TO FIRST CURACOA INTERNATIONAL BANK N.V. DATED 24 JANUARY, 2006. ITA NOS. 430 & 431/DEL/2011 UNITED REFRIGERATION & INDUSTRIES 21 II) CRIMINAL CO MPLAINT NO. 3812/2010 FILED BEFORE MM TIS HAZARI COURT AGAINST M/S TRANSWORLD ITC SOLUTIONS PVT. LTD. III) COMPANY DETAILS: CERTIFICATE OF INCORPORATION OF U.K PROPERTY SERVICES LTD. IV) COMPANY DETAILS: CERTIFICATE OF INCORPORATION OF M/S MICHAEL KELLY HAULAGE LTD. V) LETTER FROM MICHAEL KELLY DATED 5/10/2012. VI) COMPANY DETAILS: CERTIFICATE OF INCORPORATION OF RISEDALE LTD. VII) COMPANY DETAILS: CERTIFICATE OF INCORPORATION OF WISEBERRY SERVICE LTD. VIII) LETTER WRITTEN TO MR. AJAIB SINGH DATED 1/10 /2012 WITH COURIER RECEIPT. IX) LETTER FROM MR. AJAIB SINGH DATED 9/10/2012 WITH ENVELOPE. 4. THESE DOCUMENTS WERE NOT AVAILABLE WITH THE ASSESSEE AT THE TIME OF PROCEEDINGS BEFORE THE LOWER AUTHORITIES. 5. THE ASSESSEE MOST HUMBLY REQUESTS THE HONOURABL E BENCH TO ADMIT THE FOLLOWING ADDITIONAL EVIDENCES WHICH ARE NECESSARY FOR A JUST AND FAIR DISPOSAL OF APPEAL BY THE BENCH. 9 . THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE CONTENTION MADE IN THE AFORESAID APPLICATION DATED 14.06.2014 AND SUBMITTED T HAT THE DOCUMENTS NOW PROCURED BY THE ASSESSEE GO TO THE ROOT OF THE MATTER TO RESOLVE THE PRESENT CONTROVERSY. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE COULD OBTAIN THOSE DOCUMENTS AFTER PERSISTENT FOLLOW UP AND THE EVIDENCES COULD NOT BE PROCURED EARLI ER DUE TO THE CIRCUMSTANCES BEYOND THE CONTROL OF THE ASSESSEE. HE REQUESTED TO ADMIT THE ADDITIONAL EVIDENCES/DOCUMENTS. ITA NOS. 430 & 431/DEL/2011 UNITED REFRIGERATION & INDUSTRIES 22 IN SUPPORT OF THE ABOVE AN AFFIDAVIT DATED 14.06.2014 HAS ALSO BEEN SUBMITTED WHICH IS PLACED ON RECORD. 10 . IN HIS RIVAL SUBMISSIONS THE LD. DR OBJECT FOR ADMISSION OF THE ADDITIONAL EVIDENCES AND SU BMITTED THAT NO SPECIFIC REASON HAS BEEN GIVEN FOR NOT PRODUCING THOSE DOCUMENTS BEFORE THE AUTHORIT IES BELOW, THEREFORE, THE SAME SH OULD NOT BE ADMITTED. 11 . WE HAVE CONSIDERED THE SUBMIS SIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE MAIN ADDITION HAS BEEN MADE BY THE AO U/S 69 OF THE ACT ON THE BASIS OF ALLEGED BANK ACCOUNT IN THE NAME OF THE ASSESSEE FIRM IN FIRST CURACAO INTERNATIONAL BANK , NETHERLAND . THE ASSESSEE NOW FURNISHED THE NEW DOCUMENTS FIRST TIME BEFORE THE TRIBUNAL. THE SAID DOCUMENTS/EVIDENCES HAVE BEEN ADMITTED BY THE EARLIER BENCH ON 11.09.2015 AS NOTED IN THE ORDER SHEET WHICH READ AS UNDER: THE COUNSEL FOR THE ASSESSEE REQUESTED FOR ADMISSION OF ADDITIONAL EVIDENCE FILED BY THE ASSESSEE IN THE PAPER BOOK AND THE LD. DR HAS OPPOSED THE SAME. AFTER CONSIDERING THE AUGMENTS, WE ARE OF THE VIEW THAT THE ADDITIONAL EVIDENCE FILED IN PAPER BOOK BY THE ASSESSEE NEEDS TO BE ADMITTED. ACCORDINGLY WE ADMIT ADDITIONAL EVIDENCE FOR BOTH THE ASSESSMENT YEARS IN APPEAL BEFORE US. HEARING ADJOURNED TO 13 TH OCTOBER, 2015. ITA NOS. 430 & 431/DEL/2011 UNITED REFRIGERATION & INDUSTRIES 23 12. THESE DOCUMENTS /EVIDENCES ARE RELEVANT TO RESOLVE THE PRESENT CONTROVERSY AND COULD NOT BE FURNISHED EARLIER BEFORE THE AUTHORITIES BELOW BECAUSE THE ASSESSEE COULD NOT LAY ITS HANDS. T HESE ADDITIONAL EVIDENCES /DOCUMENTS NOW FURNISHED BY THE ASSESSEE ARE RELEVANT TO RESOLVE THE PRESENT CONTROVERSY AN D GO TO THE ROOT OF THE MATT ER BUT THESE DOCUMENTS/EVIDENCES WERE NOT AVAILABLE TO THE AUTHORITIES BELOW, SO THEY DID NOT HAVE ANY OCCASION TO COMMENT UPON THE SAME. WE, THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS, DEEM I T APPROPRIATE TO SET ASIDE THE CASE S FOR BOTH THE ASSESSME NT YEAR S UNDER CONSIDERATION BACK TO THE FILE OF THE AO TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ALSO DIRECT THE ASSESSEE TO COOPERATE AND NOT TO SEEK UNDUE OR UNWARRA NTED ADJOURNMENTS. 13 . IN THE RESULT, THE APPEAL S OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES . (O RDER PRONOUNCED IN THE COURT ON 22 /0 3 /2017 ) S D/ - SD/ - (SUDHANSHU SRIVASTAVA ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 22 /03 /2017 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR