OSCAR INFRA P.LTD, NAVI MUMBAI V. DCIT CEN CIR 47, MUMBAI

ITA 4698/MUM/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9681 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 08-06-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 19-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMRITA RANJAN
• Keywords: Document seized; Onus to prove; Documents seized
• Section: 143(3); 133(6); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C, MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI RAM LAL NEGI , JUDICIAL MEMBER ITA NO. 4698/MUM/2015 : A.Y : 2009 - 10 M/S. OSCAR INFRA PVT. LTD., BUILDING NO. 14, FLAT NO. 5, ASHIRWAD BUILDING, SECTOR - 9, VASHI, NAVI MUMBAI 400 703 PAN : AABCO0152H (APPELLANT) VS. DCIT, CENTRAL CIRCLE - 47 (NOW ACIT, CENT. CIRCLE - 8(4)), MUMBAI (RESPONDENT) APPELLANT BY : SHRI J.P. BAIRAGRA RESPONDENT BY : MS. AMRITA RANJAN DATE OF HEARING : 14/06/2017 DATE OF PRONOUNCEMENT : 1 2 /09/2017 O R D E R PER G.S. PANNU , AM : THE CAPTIONED APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A) - 47 , MUMBAI DATED 10.06.2015 , PERTAINING TO THE ASSESSMENT YEAR 2009 - 10 , WHICH IN TURN HAS ARISEN FROM THE ORDER PASSED BY THE ASSESSING OFFICER, MUMBAI DATED 30.12.2011 UNDER SECTION 153C R.W.S. 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. IN THIS APPEAL, THE SOLITARY GRIEVANCE OF THE ASSESSEE IS AGAIN ST THE ACTION OF THE CIT(A) IN SUSTAINING AN ADDITION OF RS.40,00,000/ - MADE BY 2 ITA NO. 4698/MUM/2015 M/S. OSCAR INFRA PVT. LTD. THE ASSESSING OFFICER WITH RESPECT TO AMOUNT RECEIVED FROM ONE M/S. IL&FS TRANSPORTATION NETWORK LTD. 3. IN ORDER TO APPRECIATE THE BACKGROUND OF THE DISPUTE RAISED BY THE ASS ESSEE IN THIS APPEAL, THE FOLLOWING DISCUSSION IS RELEVANT. THE ASSESSEE BEFORE US IS A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 AND IT IS PART OF THE GROUP OF COMPANIES KNOWN BY THE NAME OF M/S. FLEMINGO/BERMACO GROUP. A SEAR CH AND SEIZURE ACTION U/S 132(1) OF THE ACT WAS CARRIED OUT IN THE FLEMINGO/BERMACO GROUP ON 30.10.2009 AND, AS A CONSEQUENCE, AN ASSESSMENT U/S 153C R.W.S. 143(3) OF THE ACT WAS ALSO MADE ON THE ASSESSEE FOR THE INSTANT ASSESSMENT YEAR. THE ASSESSING OFF ICER NOTES THAT THE ASSESSEE WAS INCORPORATED ON 20.03.2008 AND IT IS ENGAGED IN THE BUSINESS OF ORGANISING, UNDERTAKING, DEVELOPING, EXECUTING ALL KINDS OF INFRASTRUCTURE ACTIVITIES AND TO CONSTRUCT, BUILD, DEVELOP, MAINTAIN, OPERATE, OWN AND TRANSFER INF RASTRUCTURE FACILITIES OF ALL KINDS. IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS DISCUSSED IN DETAIL THE MONIES RECEIVED BY THE ASSESSEE AND OTHER GROUP CONCERNS BY WAY OF LOANS, SHARE APPLICATION MONIES, ADVANCES, ETC. FROM OTHER CONCERNS. PARTIC ULARLY, THE ASSESSING OFFICER HAS NOTED THAT ASSESSEE RECEIVED A SUM OF RS.20 ,00,00,000/ - FROM M/S. IL&FS TRANSPORTATION NETWORK LTD. IN TERMS OF AN AGREEMENT DATED 18.04.2008. THE ASSESSEE HAD EXPLAINED THAT THE AMOUNT WAS RECEIVED AS SECURITY DEPOSIT IN TERMS OF AN AGREEMENT (MEMORANDUM OF UNDERSTANDING) BETWEEN M/S. IL&FS TRANSPORTATIO N NETWORK LTD. AND THE ASSESSEE, AND IT RELATED TO THE WORK OF DEVELOPMENT OF JHARKHAND ACCELERATED ROAD DEVELOPMENT PROGRAMME OBTAINED BY M/S. IL& FS TRANSPORTATION NETWORK LTD. AND 3 ITA NO. 4698/MUM/2015 M/S. OSCAR INFRA PVT. LTD. THE SAID CONCERN OBTAINED THE SERVICES OF THE ASSESSEE FOR PROVIDING HEAVY P LANT & MACHINERY AND EQUIPMENT, IDENTIFYING AND BLOCKING FOR STONE/CONCRETE REQUIRED FOR THE JHARKHAND ACCELERATED ROAD DEVELOPMENT PROGRAMME. M /S. IL&FS TRANSPORTATION NETWORK LTD. HAD AGREED TO PROVIDE A SECURITY DEPOSIT NOT EXCEEDING RS.25,00,00,000/ - , WHICH IS STATED TO BE RS.20,00,00,000/ - IN QUESTION, IN ORDER TO SECURE ITS RIGHT TO HAVE THE AVAILABILITY OF HEAVY PLANT & MACHINERY AS WELL AS STONE QUARRIES AS AND WHEN IT MAY REQUIRE. SIMILARLY, THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAD RECEIVED DURING THE YEAR A SUM OF RS.2,50,00,000/ - FROM ONE, M/S. UTILITY ENERGY TECH AND ENGINEERS PVT. LTD., WHICH WAS STATED TO BE AS INTEREST - FREE INTER - CORPORATE DEPOSIT. THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE EXPLANATION S RENDERED BY THE ASSESSEE WITH REGARD TO THE NATURE OF THE AFORESAID AMOUNTS RECEIVED. THE ASSESSING OFFICER NOTED THAT IMMEDIATELY AFTER THE RECEIPT OF MONIES, THE AM OUNTS WERE EITHER TRANSFERRED TO THE ACCOUNT OF OTHER ASSOCIATE CONCERNS OR WERE USED FOR FUNDING ITS SHARE TRADING BUSINESS. AS PER THE ASSESSING OFFICER, THE PURPOSE AS PER THE AGREEMENT/MEMORANDUM OF UNDERSTANDING WAS NOT FULFILLED. FOR THE SAID REASO NS, THE ASSESSING OFFICER CONCLUDED THAT ASSESSEE HAD RECEIVED SAID FUNDS WITHOUT ANY LIABILITY TO PAY BACK. BE THAT AS IT MAY, THE ASSESSING OFFICER CONCLUDED AS UNDER : - 8.4 IN VIEW OF THE ABOVE DETAILED DISCUSSION ON THE NATURE OF THE FUNDS RECEIVED, ITS UTILIZATION AND IN THE LIGHT OF DOCUMENTARY EVIDENCES IN THE FORM OF VARIOUS SEIZED DOCUMENTS AS DISCUSSED ABOVE, IT IS CLEARLY ESTABLISHED THAT THE VARIOUS FUNDS RECEIVED IN THE FORM OF SHARE APPLICATION MONEY, UNSECURED LOANS BY THE ASSESSEE AND OTH ER CONCERNS OF BERMACO GROUP FROM RELIANCE ADAG GROUP 4 ITA NO. 4698/MUM/2015 M/S. OSCAR INFRA PVT. LTD. CONCERNS & IL&FS GROUP CONCERNS ARE IN THE NATURE OF REVENUE RECEIPTS ONLY LIABLE TO BE TAXED IN THE HANDS OF THE ASSESSEE GROUP COMPANIES AS INCOME. ALTHOUGH THESE FUNDS HAVE BEEN CLAIMED AS RECEIVED IN THE FORM OF SHARE APPLICATION MONEY, UNSECURED LOAN, ADVANCES ETC. YET IN SUBSTANCE THEY ARE IN THE NATURE OF REVENUE RECEIPTS TOWARDS PROFESSIONAL SERVICES OR CONSULTANCIES RENDERED BY ASSESSEE FOR VARIOUS PURPOSES AS DISCUSSED ABOVE. THEREFORE, THE R ECEIPTS IN THE RESPECTIVE ASSESSMENT YEAR ARE REQUIRED TO BE TAXED IN THE HANDS OF THE GROUP COMPANIES IN WHICH FUNDS ARE RECEIVED. FOLLOWING HIS AFORESAID APPROACH, THE ASSESSING OFFICER ASSESSED THE AMOUNT S OF RS.20,00,00,000 / - RECEIVED FROM M/S. IL&FS TRANSPORTATION NETWORK LTD. AND RS.2,50,00,000 / - FROM M/S. UTILITY ENERGY TECH AND ENGINEERS PVT. LTD. AS REVENUE RECEIPTS IN THE HANDS OF THE ASSESSEE AS RECEIVED FOR PROFESSIONAL SERVICES OR CONSULTANCY RENDERED BY THE ASSESSEE. THE AFORESAID ADDITION WAS CHALLENGED BY THE ASSESSEE IN APPEAL BEFORE THE CIT(A). THE VARIED SUBMISSIONS MADE BY THE ASSESSEE HAVE BEEN CONSIDERED BY THE CIT(A) WHO ALSO CALLED FOR A REMAND REPORT FROM THE ASSESSING OFFICER. THE ASSESSING OFFICER FURNISHED A REPORT AND AFTER CONSIDERING THE STAND OF THE ASSESSEE THEREOF, T HE CIT(A) HAS PROCEEDED TO DELETE THE ADDITION OF RS.2,50,00,000/ - REPRESENTING AMOUNT RECEIVED FROM M/S. UTILITY ENERGY TECH AND ENGINEERS PVT. LTD. IN ITS ENTIRETY, AND WITH RESPECT TO THE AMOUNT OF RS.20,00,00,000 CRORES RECEIVED FROM M/S. IL&FS TRANSPORTATION NETWORK LTD., HE HAS DELETED THE ADDITION TO THE EXTENT OF RS.19,60,00,000/ - AND SUSTAINED THE BALANCE OF RS.40,00,000/ - . THIS SUSTENANCE OF ADDITION TO THE EXTENT OF RS.40,00,000/ - IS THE SUB JECT MATTER OF APPEAL BEFORE US. 5 ITA NO. 4698/MUM/2015 M/S. OSCAR INFRA PVT. LTD. 4. NOTABLY, AT THE TIME OF HEARING, IT WAS SPECIFICALLY PUT TO THE PARTIES AS TO WHETHER THERE IS ANY CROSS APPEAL OF THE REVENUE, BUT IT HAS BEEN SUBMITTED AT BAR THAT THERE IS NO APPEAL BY THE REVENUE AGAINST THE IMPUGNE D ORDER OF THE CIT(A) . IN THIS BACKGROUND, WE HAVE HEARD THE RIVAL CONTENTIONS. 5. A PERTINENT PLEA OF THE ASSESSEE IS THAT ONCE THE CIT(A) HAS DISAGREED WITH THE PRINCIPAL PLEA OF THE ASSESSING OFFICER ABOUT THE NATURE OF THE AMOUNT RECEIVED FROM M/S. I L&FS TRANSPORTATION NETWORK LTD., THERE WAS NO JUSTIFICATION TO SUSTAIN THE ADDITION IN RESPECT OF PART OF THE AMOUNT OF RS.40,00,000/ - MERELY BECAUSE THE SAME WAS NOT REPAID. THE LEARNED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE LIABILITY OF R S.40,00,000/ - WAS APPEARING IN THE BALANCE - SHEET AS A REFUNDABLE SECURITY DEPOSIT AND, THEREFORE, THE ADDITION HAS BEEN WRONGLY SUSTAINED. THE LEARNED REPRESENTATIVE POINTED OUT THAT EVEN WITH REGARD TO THE ADDITION MADE BY THE ASSESSING OFFICER IN THE CA SE OF OTHER GROUP CONCERNS, TABULATED IN PARA 8.4 OF THE ASSESSMENT ORDER, THE ADDITIONS HAVE BEEN EITHER DELETED BY THE CIT(A) OR APPEALS WERE STILL PENDING AT THE LEVEL OF CIT(A). IN THE CASE OF ONE GROUP CONCERN, NAMELY M/S. BERMACO ENERGY SYSTEMS LTD. , IT WAS POINTED OUT THAT THE ADVANCE RECEIVED FROM M/S. UTILITY ENERGY TECH AND ENGINEERS PVT. LTD. AS WELL AS M/S. IL&FS TRANSPORTATION NETWORK LTD. IN ASSESSMENT YEAR 2010 - 11, WHICH WERE ASSESSED BY THE ASSESSING OFFICER ON REASONS SIMILAR TO THE INSTAN T CASE, HAVE SINCE BEEN DELETED BY THE CIT(A) AND NO APPEAL HAS BEEN PREFERRED BY THE REVENUE BEFORE THE TRIBUNAL. THE LEARNED REPRESENTATIVE POINTED OUT THAT SO FAR AS THE ASSESSEE IS CONCERNED, ITS OBLIGATION IN TERMS OF SEC. 68 OF THE ACT WAS TO 6 ITA NO. 4698/MUM/2015 M/S. OSCAR INFRA PVT. LTD. SATISF ACTORILY DEMONSTRATE THE IDENTITY AND CREDITWORTHINESS OF THE CREDIT S AND THE GENUINENESS OF THE TRANSACTIONS. IT WAS POINTED OUT THAT A TOTAL OF RS.20,00,00,000/ - WAS RECEIVED FROM M/S. IL&FS TRANSPORTATION NETWORK LTD. AS SECURITY DEPOSIT AND THE FACT T HAT THE CIT(A) HAS ACCEPTED THE POSITION WITH REGARD TO RS.19,60,00,000/ - IMPLIES THAT THE ONUS CAST ON THE ASSESSEE U/S 68 OF THE ACT HAS BEEN DISCHARGED AND, THEREFORE, THERE WAS NO REASON FOR THE CIT(A) TO CONFIRM THE ADDITION TO THE EXTENT OF RS.40,00, 000/ - MERELY BECAUSE THE AMOUNT WAS YET TO BE REPAID. AT THE TIME OF HEARING, THE LEARNED REPRESENTATIVE HAS ALSO REFERRED TO THE PAPER BOOK FILED, WHEREIN IS PLACED THE MATERIAL THAT WAS BEFORE THE CIT(A) ON THE BASIS OF WHICH THE ADDITION OF RS.20,00,00 ,000/ - HAS BEEN RESTRICTED TO RS.40,00,000/ - , AND CONTENDED THAT THE EXPLANATION ABOUT THE NATURE OF AMOUNT CANNOT BE ACCEPTED IN PART . 6. ON THE OTHER HAND, THE LD. DR APPEARING FOR THE REVENUE POINTED OUT THAT THE CIT(A) HAS BASED HIS DECISION ON THE FACT THAT THE AMOUNT HAS BEEN REPAID BY THE ASSESSEE TO THE EXTENT OF RS.19,60,00,000/ - AND, THEREFORE, THE BALANCE OF RS. 40,00,000/ - WHICH REMAINED UNPAID IS OF THE NATURE AS INFERRED BY THE ASSESSING OFFICER. THUS, HE HAS DEFENDED THE ORDER OF THE ASSE SSING OFFICER IN THIS MANNER. THE LD. DR ALSO REFERRED TO THE AGREEMENT (MEMORANDUM OF UNDERSTANDING) WITH M/S. IL&FS TRANSPORTATION NETWORK LTD. TO POINT OUT THAT NONE OF THE OBLIGATIONS SET OUT IN THE SAID ARRANGEMENT HA VE BEEN CARRIED OUT BY THE ASSESS EE AND, THEREFORE, THERE WAS NO JUSTIFICATION FOR NOT REPAYING THE IMPUGNED SUM OF RS.40,00,000/ - . 7 ITA NO. 4698/MUM/2015 M/S. OSCAR INFRA PVT. LTD. 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS. FACTUALLY SPEAKING, THE ASSESSING OFFICER HAS DEALT WITH THE VERACITY OF THE TWO TRANSACTIONS ENTERE D BY THE ASSESSEE, NAMELY RECEIPT OF RS.20,00,00,000/ - FROM M/S. IL&FS TRANSPORTATION NETWORK LTD. AS A SECURITY DEPOSIT IN TERMS OF AN AGREEMENT (MEMORANDUM OF UNDERSTANDING) DATED 18.04.2008; AND, SECONDLY, INTEREST - FREE INTER - CORPORATE DEPOSIT (ICD) OF RS.2,50,00,000/ - FROM M/S. UTILITY ENERGY TECH AND ENGINEERS PVT. LTD. THE ASSESSING OFFICER HAD DISCUSSED THE ISSUE IN DETAIL IN THE ASSESSMENT ORDER, INCLUDING THE MANNER IN WHICH ASSESSEE AND OTHER GROUP CONCERNS HAVE RECEIVED MONIES IN THE SHAPE OF LO ANS AND ADVANCES, SHARE APPLICATION MONIES, ADVANCES, ETC. FROM OTHER ENTITIES. IT WOULD SUFFICE FOR OUR PURPOSE TO NOTE HERE THAT THE ASSESSING OFFICER WAS NOT SATISFIED WITH REGARD TO THE NATURE OF THE AMOUNTS RECEIVED FROM THE TWO PARTIES IN QUESTION. ACCORDING TO HIM, THE AMOUNTS RECEIVED WERE TREATED BY THE ASSESSEE AS IF THEY WERE ITS OWN FUNDS AND DID NOT CARRY ANY LIABILITY TO REPAY. THEREFORE, HE TREATED THE AMOUNTS AS REVENUE RECEIPTS AND BROUGHT TO TAX THE SAME. THE CIT(A) HAS DISAGREED WIT H THE ASSESSING OFFICER WITH RESPECT TO THE SUM OF RS.2,50,00,000/ - RECEIVED FROM M/S. UTILITY ENERGY TECH AND ENGINEERS PVT. LTD. AND WITH RESPECT TO RS.19,60,00,000/ - OUT OF THE TOTAL OF RS.20,00,00,000/ - RECEIVED FROM M/S. IL&FS TRANSPORTATION NETWORK L TD. THE FINDING S OF CIT(A) IN THIS REGARD ARE AS FOLLOWS : - 6.3 I HAVE CAREFULLY PERUSED THE ABOVE AND ALSO THE REMAND REPORTS AND THE DOCUMENTS ENCLOSED AS ANNEXURES BY THE APPELLANT. THE APPELLANT HAD PROVED THE CREDITWORTHINESS AND GENUINENESS OF TRA NSACTIONS SINCE THE RELEVANT DETAILS SUCH AS BANK STATEMENT OF THE CREDITORS, CONFIRMATIONS, TERMS OF TRANSACTION ETC. HAVE ALREADY BEEN 8 ITA NO. 4698/MUM/2015 M/S. OSCAR INFRA PVT. LTD. PRODUCED BEFORE THE ASSESSING OFFICER DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS ITSELF. EVEN THE PARTIES WHO HAD GIVEN THE ADVANCE HAD SUBMITTED THE DETAILS CONFIRMING THE TRANSACTIONS IN RESPONSE TO NOTICES ISSUED TO THEM BY THE ASSESSING OFFICER U/S. 133(6) OF THE ACT. FURTHER, THE AO HAS, VIDE HIS REMAND REPORT DATED 17.11.2014 CONFIRMED THE TRANSACTIONS PERTAININ G TO THE REPAYMENT OF THE ADVANCE OF RS.19,60,00,000/ - TO IL & FS TRANSPORTATION NETWORK LTD. AND OF RS.2,50,00,000/ - TO UTILITY ENERGY TECH ENGINEERS PVT LTD BY THE APPELLANT AND THAT NO INFIRMITY HAS BEEN POINTED OUT BY THE ASSESSING OFFICER, EXCEPT FO R THE EXCEPTIONS POINTED AND EXPLAINED BY THE APPELLANT. IT IS ESTABLISHED THAT THE ADVANCE RECEIVED BY THE APPELLANT HAS ULTIMATELY BEEN REPAID. IT IS SEEN THAT THE AMOUNT OF RS.19,60,00,000/ - TO IL & FS TRANSPORTATION NETWORK LTD. OUT OF THE ADV ANCE OF RS.20,00,00,000/ - AND RS.2,50,00,000/ - TO UTILITY ENERGY TECH ENGINEERS PVT LTD HAS BEEN REPAID AND SO THE VERY BASIS OF THE ADDITION OF THE AO ON THE BASIS THAT IT IS WITHOUT ANY LIABILITY TO REPAY BECOMES INFRUCTUOUS AND SO THE ADDITION OF RS.22. 10 CRORES (RS.19.60 CRORES + RS.2.50 CRORES) IS DELETED. OUT OF THE TOTAL AMOUNT OF RS.20 CRORES, THE APPELLANT HAS GIVEN SATISFACTORY DOCUMENTARY EVIDENCE RELATING TO THE AMOUNT OF RS.19.60 CRORES AND SO THE SAME IS DELETED. THE BALANCE AMOUNT OF RS.40 L AKHS IS CONFIRMED FOR NON - REPAYMENT. THEREFORE, GROUND OF APPEAL NO.4 IS PARTLY ALLOWED. THE AO IS DIRECTED TO DELETE RS.21.10 CRORES AND CONFIRM RS.40 LAKHS. 8. INSOFAR AS THE FINDING S OF THE CIT(A) IN RELATION TO THE AMOUNTS DELETED ARE CONCERNED, THEY ARE NOT IN DISPUTE BEFORE US. T HE GRIEVANCE OF THE ASSESSEE IS AGAINST THE ACTION OF THE CIT(A) IN NON - SUITING THE ASSESSEE FOR THE TREATMENT OF RS.40,00,000/ - IN ITS HANDS, WHEREAS THE BALANCE OF RS. 19,60,00,000/ - RECEIVED FROM M/S. IL&FS TRANSPORTATION NETWORK LTD. IN TERMS OF THE SAME ARRANGEMENT HAS BEEN TREATED DIFFERENTLY. 9 ITA NO. 4698/MUM/2015 M/S. OSCAR INFRA PVT. LTD. 9. T HE DECISION OF THE CIT(A) SHOWS THAT HE HAS PRIMARILY GONE BY THE FACT THAT THE AMOUNTS RECEIVED HAVE BEEN REPAID BY THE ASSESSEE SUBSEQUENTLY AND, THEREFORE, HE HAS DISAGREED WITH THE ASSESSING OFFICERS TREATMENT OF THE AMOUNTS BEING REVENUE RECEIPTS NOT CARRYING ANY LIABILITY TO REPAY . IT CAN BE SEEN THAT THE ASSESSING OFFICER HELD THAT THE AMOUNT DID NOT CARRY ANY LI ABILITY TO REPAY WHEREAS ACCORDING TO THE CIT(A), ONCE THE AMOUNT HAS BEEN ACTUALLY REPAID, IT COULD NOT BE TREATED AS ASSESSEES OWN MONEY SO AS TO MERIT THE ADDITION AS MADE BY THE ASSESSING OFFICER. IN THE ABSENCE OF ANY APPEAL BY THE REVENUE AGAINST S UCH FINDING OF THE CIT(A), WE MAY ALSO EXAMINE AS TO WHETHER THE SAID TEST CAN BE APPLIED IN THE CONTEXT OF THE BALANCE AMOUNT OF RS.40,00,000/ - RECEIVED FROM M/S. IL&FS TRANSPORTATION NETWORK LTD. IT IS NOT IN DISPUTE THAT THE IMPUGNED SUM OF RS.40,00,00 0/ - HAS ALSO BEEN RECEIVED IN PURSUANCE TO THE AGREEMENT (MEMORANDUM OF UNDERSTANDING) WITH M/S. IL&FS TRANSPORTATION NETWORK LTD. DATED 18.04.2008. THE LEARNED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE IMPUGNED SUM WAS NOT REPAID, BUT ITS LIAB ILITY WAS STILL OUTSTANDING IN THE BALANCE - SHEET, AND THAT THERE WAS ENOUGH JUSTIFICATION TO SAY THAT THE AMOUNT WAS NOT IN THE NATURE OF AN AMOUNT ASSESSABLE IN THE HANDS OF THE ASSESSEE. IN OUR CONSIDERED OPINION, IF ONE HAS TO GO BY THE TEST FORMULATED BY THE CIT(A), AND INCIDENTALLY WHICH IS NOT DISPUTED BY THE REVENUE BEFORE US (AS NO APPEAL IS SAID TO HAVE BEEN FILED AGAINST THE ORDER OF THE CIT(A) BY THE REVENUE), THE A FORESAID SUM BECOMES ASSESSABLE. NOTABLY, THE ASSESSING OFFICER HAD DISAGREED WI TH THE ASSESSEE ON THE NATURE OF THE CREDIT APPEARING IN ACCOUNT BOOKS OF THE ASSESSEE AGAINST THE NAME OF M/S. IL&FS TRANSPORTATION NETWORK LTD. THE ASSESSEE HAD CLAIMED IT AS 10 ITA NO. 4698/MUM/2015 M/S. OSCAR INFRA PVT. LTD. A SECURITY DEPOSIT IN PURSUANCE TO AN MOU, AGAINST WHICH SERVICES WERE TO BE PERFORMED. THE ASSESSING OFFICER HAD DISAGREED AND CONCLUDED THAT IT WAS IN THE NATURE OF AN AMOUNT OWNED BY THE ASSESSEE ITSELF. PERTINENTLY, THE CIT(A) HAS ALLOWED RELIEF TO THE EXTENT AMOUNT HAS BEEN REPAID, AND HE HAS NOT TOUCHED UPON THE NATURE O F THE CREDIT AT THE TIME OF ITS RECEIPT. SO HOWEVER, IT HAS BEEN THE CASE OF THE ASSESSEE THAT APART FROM THE TEST OF REPAYMENT, THERE IS ENOUGH JUSTIFICATION TO SAY THAT THE AMOUNT HAS BEEN RECEIVED FOR WHICH ASSESSEE HAS A LIABILITY TO EITHER REPAY OR R ENDER THE SERVICES AS ENVISAGED IN THE MOU. WHETHER OR NOT THE SAID PLEA IS TENABLE IS RELEVANT TO DECIDE THE FATE OF THE IMPUGNED SUM OF RS.40,00,000/ - , BUT THE SAME HAS NOT BEEN ADDRESSED BY THE CIT(A). SO FAR AS THE SOURCE OF THE CREDIT IS CONCERNED, THERE IS NO DISPUTE , AND T HE ONLY DISPUTE IS WITH REGARD TO THE NATURE OF THE AMOUNT AND , IN OUR CONSIDERED OPINION, THE ONUS TO PROVE THE NATURE OF IMPUGNED CREDIT IS ENTIRELY ON THE ASSESSEE . IN OUR CONSIDERED OPINION, IT WOULD BE IN THE FITNESS OF THINGS THAT THE ASSESSEE IS ALLOWED AN OPPORTUNITY TO DEMONSTRATE WITH POSITIVE EVIDENCE THAT WITH RESPECT TO THE SUM OF RS.40,00,000/ - , THE LIABILITY TO REPAY M/S. IL&FS TRANSPORTATION NETWORK LTD. CONTINUES INSPITE OF THE FACT THAT THE ARRANGEMENT ENVISA GED IN THE AGREEMENT (MEMORANDUM OF UNDERSTANDING) DATED 18.04.2008 HAS NOT FRUCTIFIED , A FACT WHICH IS NOT IN DISPUTE . SINCE T HE AFORESAID ASPECT REQUIRES A FACTUAL APPRECIATION OF THE STATE OF AFFAIRS, WE DEEM IT PROPER TO RESTORE THE MATTER BACK TO THE FILE OF THE CIT(A). I T IS DIRECTED THAT THE CIT(A) SHALL EXAMINE THE AFORESAID ASPECT ON THE BASIS OF THE MATERIAL AND EVIDENCE THAT THE ASSESSEE MAY SUBMIT BEFORE HIM. ACCORDINGLY, THE ISSUE RELATING TO 11 ITA NO. 4698/MUM/2015 M/S. OSCAR INFRA PVT. LTD. ASSESSABILITY OF SUM OF RS.40,00,000/ - IS RESTORE D BACK TO THE FILE OF THE CIT(A) TO BE DECIDED AFTER HEARING THE ASSESSEE AND AS PER LAW. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 1 2 TH SEPTEMBER, 2017. SD/ - SD/ - ( RAM LAL NEGI ) JUDICIAL MEMBER (G.S. PANNU) ACCOUNTANT MEMBER MUMBAI, DATE : 1 2 TH SEPTEMBER , 201 7 *SSL* COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, C BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ ASSTT. REGISTRAR I.T.A.T, MUMBAI