SUDHIR B VORA, MUMBAI V. ASST CIT CEN CIR 18 &19, MUMBAI

ITA 4619/MUM/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71252 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 27-08-2013
• Assessment Year: 1994-1995
• Appeal Filed On: 13-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P SINGH
• Assessee Lawyers: A L SHARMA
• Keywords: Search and seizure; Additional evidence; Accommodation entries
• Section: 133A; 131; 144; 68

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL I II I BENCH, BENCH, BENCH, BENCH, MUMBAI MUMBAI MUMBAI MUMBAI , . . . ! ! ! ! , ' ' ' ' #$ #$ #$ #$ BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM & & & & SHRI SHRI SHRI SHRI N. K. BILLAIYA N. K. BILLAIYA N. K. BILLAIYA N. K. BILLAIYA, AM , AM , AM , AM ./ I.T I.TI.T I.T.A. NO. .A. NO. .A. NO. .A. NO.4619/MUM/2013 4619/MUM/2013 4619/MUM/2013 4619/MUM/2013 ( % % % % & & & & / ASSESSMENT YEAR :1994-95) ./ I.T.A. NO. I.T.A. NO. I.T.A. NO. I.T.A. NO.4620/MUM/2013 4620/MUM/2013 4620/MUM/2013 4620/MUM/2013 ( % % % % & & & & / ASSESSMENT YEAR :1996-97) ./ I.T.A. NO. I.T.A. NO. I.T.A. NO. I.T.A. NO.3895/MUM/2007 3895/MUM/2007 3895/MUM/2007 3895/MUM/2007 ( % % % % & & & & / ASSESSMENT YEAR :1995-96) SHRI SUDHIR B. VORA PARAS-2, GULMOHAR CROSS ROAD NO. 4, JVPD SCHEME, MUMBAI-400049 / VS. ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIR. 18&19 4 TH FLOOR, AAYAKAR BHAVAN, MUMBAI-400020 ( '( / APPELLANT APPELLANT APPELLANT APPELLANT) .. ( )*'( / RESPONDENT RESPONDENT RESPONDENT RESPONDENT) ./ I.T.A. NO. I.T.A. NO. I.T.A. NO. I.T.A. NO.5030 5030 5030 5030/MUM/ /MUM/ /MUM/ /MUM/2007 2007 2007 2007 ( % % % % & & & & / ASSESSMENT YEAR :1999-2000) ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIR. 18&19 4 TH FLOOR, AAYAKAR BHAVAN, MUMBAI-400020 / VS. SHRI SUDHIR B. VORA PARAS-2, GULMOHAR CROSS ROAD NO. 4, JVPD SCHEME, MUMBAI-400049 $' ' ./ + ./ PAN/GIR NO. :AABPV7456Q ( '( / APPELLANT APPELLANT APPELLANT APPELLANT) .. ( )*'( / RESPONDENT RESPONDENT RESPONDENT RESPONDENT) '( '( '( '( , , , , / APPELLANT BY : SHRI A. L. SHARMA )*'( )*'( )*'( )*'( - -- - , , , , /RESPONDENT BY : SHRI O. P. SINGH - -- - .' .' .' .' / DATE OF HEARING : 27 TH AUGUST 2013 /0& /0& /0& /0& - -- -.' .' .' .' /DATE OF PRONOUNCEMENT: 27 TH SEPTEMBER 2013 #1 / O R D E R PER : , . . / VIJAY PAL RAO, JM THREE APPEALS BY THE ASSESSEE FOR THE ASSESSMENT Y EARS 1994-95 TO 1996-97 AND ONE APPEAL BY THE REVENUE FOR THE ASSES SMENT YEAR 1999- 2000 ARE DIRECTED AGAINST THE RESPECTIVE ORDERS OF COMMISSIONER OF 4619 & 4620/M/2013 & 3895 & 5030/M/2007 SHRI SUDHIR B VORA 2 INCOME TAX(APPEALS). SINCE SOME COMMON ISSUES ARE I NVOLVED IN ALL THESE APPEALS THEREFORE, FOR THE SAKE OF CONVENTION THESE FOUR APPEAL ARE HEARD TOGETHER AND DISPOSED OFF BY THIS COMPOSITE ORDER. 2. FIRST WE TAKE UP THE REVENUES APPEAL WHEREIN TH E FOLLOWING GROUNDS ARE RAISED AS UNDER: A. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) ERRED IN HOLDING THAT ALL THE CASH D EPOSITS FROM THE PART OF TOTAL CASH DEPOSITS CONSIDERED IN THE HANDS OF SHRI NARESH B VORA, BROTHER OF ASSESSEE AND HENCE CANNOT BE TAX ED AGAIN IN THE HANDS OF SHRI SUDHIR B VORA. B. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN HOLDING THAT POOJA INDUSTRI AL CORPORATION IS OPERATED BY SHRI NARESH B. VORA. C. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN IGNORING THE FACT THAT COMM ISSION OF 4% IS WORKED OUT ON 2,59,65,000/- I.E. RS.10,38,600/- WHI CH IS DEPOSITED IN POOJA INDUSTRIAL CORPORATION AND IN TH E CASE OF SHRI NARESH B VORA COMMISSION, IS WORKED OUT 4% ON RS. 10,39,98,162/- I.E.RS.41 ,55,926/- AND CONSIDERED I N HIS HANDS. D. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD.CIT(A) ERRED IN HOLDING THAT THE ENTRIES IN SEIZED ITEM NO.A-15 PERTAINS TO SALE OF CHEMICAL SBPS AND NOT S ALE OF NAPTHA UNLIKE HELD BY THE A.O. 3. THE ASSESSMENT WAS FRAMED U/S 144 OF THE INCOME TAX ACT AS THE ASSESSEE DID NOT FILE THE REQUISITE DETAILS. A SURV EY U/S 133A WAS CARRIED OUT IN VORA GROUP CASES ON 24.9.1998. SUBSEQUENT TO SURVEY THE BOOKS OF ACCOUNTS IDENTIFIED AND INVENTORIES WERE IMPOUNDED BY THE DDIT, MUMBAI. IT WAS FOUND THAT THE ASSESSEE AND HIS BROTHER SHRI NARESH VORA WERE ENGAGED IN THE ACTIVITY OF HAWALA BILLS AND ACCOMMO DATION AS WELL AS HAWALA ENTRIES TO VARIOUS PARTIES AT PRE-DETERMINED COMMISSION RATE ALONG WITH THEIR REGULAR BUSINESS. DURING THE COURS E OF SEARCH AND SEIZURE 4619 & 4620/M/2013 & 3895 & 5030/M/2007 SHRI SUDHIR B VORA 3 ACTION IN THE CASE OF V JAIN GROUP AND THHAKR GROUP WHO WERE ENGAGED IN DEALING WITH NAPHTHA, IT WAS FOUND THAT SALES WERE MADE BY THESE PARTIES IN CASH IN THE OPEN MARKET AT A PREMIUM AND CREATE A FAADE OF GENUINENESS, ACCOMMODATION ENTRIES WERE BEING PROCU RED. THE NAPHTHA DEALERS PROVIDED CASH TO HAWALA BILLS PROVIDER WHIC H WAS DEPOSITED IN THE BANK AND IN TURN CHEQUES WERE ISSUED ALONG WITH HAW ALA BILLS TO THE NAPHTHA DEALER. THE VORA GROUP WAS INDULGE AND PROV IDING SUCH ACCOMMODATION ENTRIES. THE ASSESSING OFFICER ASSESS ED THE UNACCOUNTED COMMISSION @ 4% OF THE TOTAL CASH DEPOSITED DURING THE YEAR UNDER CONSIDERATION. IT WAS FOUND THAT A CASH OF ` 2,59,6 5,000/- WAS DEPOSITED IN THE BANK ACCOUNT WHICH WERE EITHER DIRECTLY OR AFTE R ROUTING THROUGH ANOTHER BANK ACCOUNT TRANSFERRED TO SOME OTHER PART Y PURPORTEDLY AGAINST SALE PROCEEDS. ACCORDINGLY, THE AO WORKED OUT THE U NACCOUNTED COMMISSION INCOME @4% ON SUCH CASH DEPOSIT AT ` 10, 38,600/- AND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. ON AP PEAL, THE ASSESSEE HAS EXPLAINED, BEFORE THE CIT(A), THE REASONS FOR N ON-ATTENDANCE BEFORE THE AO. IT WAS SUBMITTED THAT THE ASSESSEE HAS GIVE N GENERAL POWER OF ATTORNEY TO HIS BROTHER NARESH VORA IN RESPECT OF B USINESS ACTIVITIES AND RELATING TO ALL MATTERS OF BUSINESS ACTIVITIES. SIN CE, SHRI NARESH VORA WAS ABSCONDING DURING THE PERIOD THE ASSESSEE COULD NOT FILE EVIDENCE BEFORE THE ASSESSING OFFICER. THE CIT(A) SENT THE SUBMISSI ONS OF THE ASSESSEE TO THE ASSESSING OFFICER FOR REPORT. THE AO FILED THE REMAND REPORT WHEREBY OBJECTED TO THE ADMISSION OF ADDITIONAL EVIDENCE. T HE ASSESSEE FURTHER SUBMITTED THAT THE ADDITION ON ACCOUNT OF COMMISSIO N HAS ALREADY BEEN MADE ON THE BASIS OF THESE ENTRIES IN THE CASE OF T HE BROTHER SHRI NARESH 4619 & 4620/M/2013 & 3895 & 5030/M/2007 SHRI SUDHIR B VORA 4 VORA IN THE ASSESSMENT ORDER DATED 28.3.2002. IT WA S URGED BY THE ASSESSEE THAT THE BUSINESS OF PROVIDING HAWALA ENTR IES WAS CONTROLLED BY HIS BROTHER AND HIS BROTHER HAS ALREADY ADMITTED TH E ENTRIES MADE IN THE CASH BOOK. SINCE THE ENTRIES ON THE BASIS OF WHICH THE ADDITION HAS ALREADY BEEN CONSIDERED AND AN ADDITION ON ACCOUNT OF COMMI SSION WAS MADE IN THE CASE OF THE BROTHER OF THE ASSESSEE NO FURTHER ADDITION CAN BE MADE IN THE HAND OF THE ASSESSEE. AFTER CONSIDERING THE REC ORD FILED BY THE ASSESSEE, THE SUBMISSIONS AS WELL AS ASSESSMENT FRA MED IN THE CASE OF SHRI NARESH VORA THE BROTHER OF THE ASSESSEE THE CI T(A) DELETED THE ADDITION. 4. WE HAVE HEARD THE LD. AR AS WELL AS LD. DR AND C ONSIDERED THE RELEVANT MATERIAL ON RECORD. THE LD. DR HAS SUBMITT ED THAT SINCE THE DEPOSIT WAS FOUND IN THE BANK ACCOUNT OF THE ASSESS EE THEREFORE, THE AO HAS RIGHTLY MADE AN ADDITION ON ACCOUNT OF COMMISSI ON INCOME WHICH HAS NOT BEEN DISCLOSED BY THE ASSESSEE. HE HAS FURTHER CONTENDED THAT THERE IS NO DISPUTE ABOUT THE FACT THAT THE ASSESSEE AND HIS BROTHER ARE ENGAGED IN PROVIDING HAWALA ENTRIES TO THE NAPHTHA DEALERS AGAINST THE CASH WHICH WAS BEING DEPOSITED IN THE BANK ACCOUNT AND AFTER D EDUCTING THEIR COMMISSION INCOME THE AMOUNT WAS RELEASED TO THE DE ALERS IN THE GARB OF SALES. HE HAS RELIED UPON THE ORDER OF THE AO. ON T HE OTHER HAND, THE LD. AR HAS SUBMITTED THAT THE RELEVANT DOCUMENT WERE FI LED BEFORE THE CIT(A) WHICH SHOW THAT THE ASSESSEES BANK ACCOUNT WAS OPE RATED BY SHRI NARESH VORA THE BROTHER OF THE ASSESSEE. HE HAS FUR THER SUBMITTED THAT THE DEPOSIT FOUND IN THE ASSESSEES BANK ACCOUNT HA S BEEN CONSIDERED IN 4619 & 4620/M/2013 & 3895 & 5030/M/2007 SHRI SUDHIR B VORA 5 THE ASSESSMENT OF ASSESSEES BROTHER SHRI NARESH VO RA AND AN ADDITION @ 4% ON ACCOUNT OF UNACCOUNTED COMMISSION HAS BEEN MA DE IN THE HAND OF THE BROTHER OF THE ASSESSEE. THE LD. AR HAS BROUGHT TO OUR NOTICE THAT THE TRIBUNAL HAS CONSIDERED THE ISSUE OF ADDITION ON AC COUNT OF COMMISSION IN THE CASE OF SHRI NARESH VORA WHEREIN THE ENTIRE DEP OSITS IN BANK INCLUDING THE DEPOSITS IN ASSESSEES BANK WERE SUBJECT MATTER FOR THE ADDITION ON ACCOUNT OF COMMISSION INCOME HAS BEEN CONFIRMED BY THIS TRIBUNAL. THUS, THE LD. AR HAS REFERRED THE DETAILS OF CASH RECEIVE D AND DEPOSITED IN THE BANK ACCOUNT OF POOJA INDUSTRIAL CORPORATION AS WEL L AS THE PROPRIETY CONCERN OF SHRI NARESH VORA, NITIN VORA AND BHAVNA VORA. THE LD. AR HAS EXPLAINED THAT THE TOTAL AMOUNT AS MENTIONED IN THE SAID CHART AT PAGE NO. 5 OF THE PAPER BOOK HAS BEEN CONSIDERED IN THE CASE OF THE SHRI NARESH VORA THE BROTHER OF THE ASSESSEE THEREFORE, NO ADDITION CAN BE MADE IN THE HAND OF THE ASSESSEE. 5. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND CARE FUL PERUSAL OF THE RELEVANT MATERIAL ON RECORD WE NOTE THAT THE ADDITI ON ON ACCOUNT OF COMMISSION INCOME HAS BEEN MADE BY THE AO WITH RESP ECT TO THE BANK DEPOSIT OF ` 2,59,65,000/-. AS PER THE DETAILS GIVE N AT PAGE 5 OF THE PAPER BOOK THE LD. AR HAS URGED THAT ` 2.59 CRORES IS PAR T OF THE BANK DEPOSITS IN CASE OF POOJA INDUSTRIAL CORPORATION WHICH HAS B EEN CONSIDERED IN THE CASE OF THE ASSESSEES BROTHER. THE CIT(A) HAS ALSO DELETED THE ADDITION BY CONSIDERING THE FACT THAT THE ADDITION ON THE TOTAL AMOUNT HAS BEEN MADE IN THE CASE OF ASSESSEES BROTHER. SINCE THE ADDITI ON IN THE CASE OF ASSESSEES BROTHER HAS BEEN CONFIRMATION TO THE EXT ENT OF 3.02% BY THIS 4619 & 4620/M/2013 & 3895 & 5030/M/2007 SHRI SUDHIR B VORA 6 TRIBUNAL VIDE ORDER DATED 8.3.2013 IN ITA NO. 2978/ M/2007 IN PARA 11 AS UNDER: 11. FROM THE ABOVE, IT IS EVIDENT THAT THE DATA AS GIVEN IN THE BOOK NO.1, PERTAINING TO DIRECTLY THE ASSESSEE, WHI CH IS DULY IMPOUNDED BY THE REVENUE AS PER THE PROVISIONS OF S ECTION 131 R.W.S 133A OF THE ACT AND IT IS RELEVANT FOR THE AY 1998- 1999. NO EQUIVALENT WORKING WAS SHOWN BY THE AC FOR THE AY 1 999-2000 OR LATER ONES AS IT IS NOT AVAILABLE. AO HAS RELIED ON THE ABOVE MENTIONED DATA ALSO FOR THE CURRENT ASSESSMENT YEAR . ABOVE DATA IS UNDISPUTEDLY GROSS COMMISSION EARNED BY THE ASSESSEE AND THE PERCENTAGE ADOPTED IS NOT A FIXED. IT IS VA RYING FROM PARTY TO PARTY AND THE MINIMUM AND MAXIMUM RATE OBS ERVED FROM THE ABOVE LIST IS 2.O2% AND 4.13% RESPECTIVELY . THE AVERAGE RATE WORKS OUT TO 3.07%. IN PRINCIPLE, THE DATA RELEVANT FOR THE AY 1998-99 CANNOT BE EXTRAPOLATED BEYOND TH AT YEAR. THEREFORE, WE REJECT THE 4% BASED ESTIMATION FOR TH E CURRENT YEARS. NEVERTHELESS, THE SAID MINIMUM AND MAXIMUM % EMANATING FROM THE SAID BOOK CONVEYS SOME WHISPERS ABOUT THE ASSESSEE BUSINESS AFFAIRS AND IN THE COMMISSIONS PE RCENTAGES. THEREFORE USING THE SAID DATA WITH NECESSARY MODIFI CATION, WE PROCEED TO ESTIMATE THE PROFITS OF THE ASSESSEE 3.0 7% BEING THE AVERAGE COMMISSION OF THE MM AND MIX PERCENTAGES, W E PROCEED TO ADOPT THE SAME AS GROSS COMMISSION FOR T HIS YEARS UNDER CONSIDERATION AND WE APPLY TO THE UNDISPUTED TURNOVER OF RS.10,39,98,162/- FOR AY 1999-00 ACCORDINGLY. OUT O F THE SAME, IN OUR OPINION, ASSESSEE SHOULD BE ENTITLED TO SOME EXPENDITURE TOWARDS RUNNING OF THE BUSINESS AND OTHER HIDDEN EX PENSES, IF ANY. THIS KIND OF ESTIMATION, IN OUR OPINION, CONST ITUTES REASONABLE AND THEREFORE, AO IS DIRECTED TO ADOPT T HE ABOVE WORKING FOR DETERMINATION OF THE TAXABLE INCOME. IN OUR OPINION, THE DEDUCTION OUT OF THE ABOVE TOWARDS THE UNACCOUN TED AND HIDDEN EXPENSES @ O.5% AND THE NET COMMISSION INCOM E EARNED ON THE ABOVE TURNOVER SHOULD BE CALCULATED A PPLYING THE NET COMMISSION RATE OF (3.07% - 0.5%) 3.02%. AC I S DIRECTED TO GIVE EFFECT AS PER THE ABOVE. ACCORDINGLY, GROUND N O.1 RAISED IN THE APPEALS IS ALLOWED. 6. PRINCIPALLY THERE CANNOT BE A DOUBLE ADDITION OF THE SAME AMOUNT WHEN IT HAS ALREADY BEEN MADE IN THE HAND OF THE AS SESSEES BROTHER. HOWEVER, THIS FACT THAT THE DEPOSIT OF CASH IN THE BANK ACCOUNT IN THE CASE OF THE ASSESSEE HAS ALREADY BEEN CONSIDERED FOR ADD ITION ON ACCOUNT OF 4619 & 4620/M/2013 & 3895 & 5030/M/2007 SHRI SUDHIR B VORA 7 COMMISSION INCOME IN THE HAND OF THE ASSESSEES BRO THER SHRI NARESH VORA IS REQUIRED TO BE VERIFIED AT THE LEVEL OF THE ASSESSING OFFICER. ACCORDINGLY, WE SET ASIDE THIS ISSUE FOR LIMITED PU RPOSE OF VERIFICATION OF THIS FACT WHETHER THE AMOUNT OF DEPOSIT IN BANK IN CASE OF THE ASSESSEE IS PART OF THE TOTAL AMOUNT WHICH WAS CONSIDERED FOR M AKING THE ADDITION OF UNACCOUNTED COMMISSION IN THE HAND OF SHRI NARESH V ORA. THE AO HAS TO ACCORDINGLY DECIDE THIS ISSUE. FOR T FOR T FOR T FOR THE ASSESSMENT YEAR 1994 HE ASSESSMENT YEAR 1994 HE ASSESSMENT YEAR 1994 HE ASSESSMENT YEAR 1994- -- -95 9595 95 7. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS AS UNDER: 1. (A) ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LEARNED CIT(A) ERRED IN CONFIRMING TAXING COMMISSIO N INCOME OF ` 1,58,240/- BEING 4% OF ` 39,56,000/- ON CASH DEPOSI TS. (B) THE LEARNED CIT(A) FAILED TO APPRECIATE THAT TH E AMOUNT OF ` 11,32,074/- RECEIVED BY APPELLANTS BROTHER NARESH VORA WHO WAS DOING HAWALA COMMISSION BUSINESS. (C) THE LEARNED CIT(A) ALSO FAILED TO APPRECIATE TH AT CASH DEPOSITS OF ` 28,23,927/- IS OUT OF APPELLANTS CASH SALES O F CHEMICALS ON WHICH NET PROFIT HAS BEEN DECLARED IN THE RETURN OF INCOME. 8. GROUND NO. 1(A) AND (B) ARE COMMON GROUND RAISED BY THE REVENUE IN THE APPEAL FOR THE ASSESSMENT YEAR 1999-2000. IN VIEW OF OUR FINDING IN THE REVENUES APPEAL THIS ISSUE IS SET ASIDE TO THE RECORD OF THE AO ON SAME TERMS AND DIRECTIONS. 9. GROUND 1(C) REGARDING CASH DEPOSITS OUT OF SALE OF CHEMICALS. WE HAVE HEARD THE LD. AR AS WELL AS LD. DR AND CONSIDE RED THE RELEVANT MATERIAL ON RECORD. THE ASSESSEE HAS CONTENDED THAT THE CASH DEPOSITS IN BANK INCLUDES A SUM OF ` 28,23,927/- OUT OF THE CAS H SALES OF CHEMICAL 4619 & 4620/M/2013 & 3895 & 5030/M/2007 SHRI SUDHIR B VORA 8 MADE BY THE ASSESSEE ON WHICH THE NET PROFIT HAS BE EN DECLARED IN THE RETURN OF INCOME. THE CIT(A) HAS CONFIRMED THE ADDI TION MADE BY THE AO ON THE GROUND THAT NO DOCUMENT/MATERIAL WAS AVAILAB LE ON RECORD TO SUPPORT THE FACT OF CASH DEPOSITS BEING ALREADY INC LUDED IN THE AGGREGATE OF CASH DEPOSITS AS COMPUTED IN THE HAND OF SHRI NA RESH VORA. WE FURTHER NOTE THAT NEITHER THE AO NOR THE CIT(A) HAS CONSIDE RED AND GIVEN ANY FINDING ON THIS ISSUE THAT OUT OF THE TOTAL CASH DE POSIT IN THE BANK CERTAIN AMOUNT IS REGARDING THE SALES MADE BY THE ASSESSEE DURING THE YEAR ON WHICH THE NET PROFIT HAS BEEN DECLARED IN THE RETUR N OF INCOME. HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE I N THE INTEREST OF JUSTICE WE DIRECT THE AO TO VERIFY THIS FACT AND THEN DECID E THE ISSUE ACCORDINGLY. FOR THE ASSESSMENT YEAR 1995 FOR THE ASSESSMENT YEAR 1995 FOR THE ASSESSMENT YEAR 1995 FOR THE ASSESSMENT YEAR 1995- -- -96 9696 96 10. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS A S UNDER: 1. ONE THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LEARNED CIT(A) ERRED IN CONFIRMING THE ACTION OF TH E ASSESSING OFFICER IN TAXING ` 55,360/- AS UNDISCLOSED COMMISS ION INCOME IN THE HANDS OF THE APPELLANT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LEARNED CIT(A) ERRED IN CONFIRMING THE ACTION OF THE ASSESS ING OFFICER IN TAXING LOANS OF ` 3,29,342/- OF U/S 68 OF IT ACT, 1 961. 11. GROUND NO. 1 REGARDING UNDISCLOSED COMMISSION I NCOME. IN VIEW OF OUR FINDING IN THE REVENUES APPEAL THIS ISSUE IS S ET ASIDE TO THE RECORD OF THE ASSESSING OFFICER ON THE SAME TERMS AND DIRECTI ONS. 12. GROUND NO. 2 REGARDING ADDITION U/S 68 ON ACCOU NT OF LOAN. WE HAVE HEARD THE LD. AR AS WELL LD. DR AND CONSIDERED THE RELEVANT MATERIAL ON 4619 & 4620/M/2013 & 3895 & 5030/M/2007 SHRI SUDHIR B VORA 9 RECORD. THE LD. AR OF THE ASSESSEE HAS FORCEFULLY C ONTENDED THAT THERE WAS NO FRESH LOAN TAKEN BY THE ASSESSEE DURING THE CURRENT YEAR UNDER CONSIDERATION THEREFORE, NO ADDITION CAN BE MADE U/ S 68 WHEN THE LOAN WAS TAKEN IN THE EARLIER YEARS. HE HAS POINTED OUT THAT THE CIT(A) WHILE CONFIRMING THE ADDITION TO THE EXTENT OF ` 3,29,342 /- HAS CONSIDERED THE OUTSTANDING LOAN AS ON 31.3.1993 AND 31.3.1995 AND NOT THE OUTSTANDING LOAN AS ON 31.3.1994. 13. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND CAR EFUL PERUSAL OF ORDER OF THE CIT(A) WE NOTE THAT WHILE CONFIRMING THE ADD ITION OF ` 3,29,342/- THE CIT(A) HAS COMPARED THE UNSECURED LOAN AS ON 31.3.1 993 TO 31.3.1995. THUS, THE OUTSTANDING BALANCE OF UNSECURED LOAN AS ON 31.3.1994 HAS NOT BEEN TAKEN INTO ACCOUNT SO AS TO COMPARE WITH THE U NSECURED LOAN AS ON 31.3.1995 IN ORDER TO FIND OUT ANY INCREASE OF UNSE CURED LOAN DURING THE YEAR. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE WE DIRECT THE AO TO VERIFY THIS FACT WHE THER ANY FRESH LOAN WAS TAKEN BY THE ASSESSEE DURING THE YEAR UNDER CONSIDE RATION AND IF NO FRESH LOAN IS TAKEN BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION THEN NO ADDITION CAN BE MADE U/S 68. FOR THE ASSESSMENT YEAR 1996 FOR THE ASSESSMENT YEAR 1996 FOR THE ASSESSMENT YEAR 1996 FOR THE ASSESSMENT YEAR 1996- -- -97 9797 97 14. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS A S UNDER: 1. (A) ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LEARNED CIT(A) ERRED IN CONFIRMING THE ACTION OF TH E A.O IN TAXING COMMISSION INCOME OF ` 15,960/- BEING 4% OF ` 3,99, 000/-. (B) THE LEARNED CIT(A) FAILED TO APPRECIATE THAT AP PELLANTS SUBMISSION THAT ABOVE AMOUNT OF ` 3,99,000/- RECEIV ED FROM 4619 & 4620/M/2013 & 3895 & 5030/M/2007 SHRI SUDHIR B VORA 10 NAPHTHA QUOTA HOLDER PARTIES BY APPELLANTS BROTHER NARESH VORA HAS BEEN CONSIDERED WHILE TAXING COMMISSION INCOME IN HIS HANDS. 15. THIS GROUND IS COMMON AS IN THE EARLIER ASSESSM ENT YEAR 1994-95 AS WELL AS IN REVENUES APPEAL. IN VIEW OF OUR FIND ING IN THE ASSESSEES APPEAL THIS ISSUE IS SET ASIDE TO THE RECORD OF THE ASSESSING OFFICER ON SAME TERMS AND DIRECTIONS. 16. IN THE RESULT, THE APPEALS OF THE ASSESSEE/REVE NUE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 27 TH DAY OF SEPTEMBER 2013 SD/- SD/- ( . . ! ) ' #$ (N. K. BILLAIYA) ACCOUNTANT MEMBER ( ) % #$ (VIJAY PAL RAO) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 27 TH SEPTEMBER 2013 SUBODH COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI