MORYA HOUSE MAKERS, NAVI MUMBAI V. DCIT CEN CIR 39, MUMBAI

ITA 5264/MUM/2013

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8354 (ITAT-MUMBAI)
• Duration Of Justice: 8 year(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 25-05-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 30-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDRA VIJAY
• Keywords: Unexplained cash credit; Rectification of order; Opportunity of being heard; Additional evidence; TDS
• Section: 143(3); 40(a)(ia); 133(6); 250; 246A; 13; 153C; 147; 154; 68

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI SHRI SHAMIM YAHYA (AM) & SHRI PAVANKUMAR GADALE ( JM) I.T.A. NO. 5264/MUM/2013 (ASSESSMENT YEAR 2008-09) I.T.A. NO. 1995/MUM/2012 (ASSESSMENT YEAR 2008-09) I.T.A. NO. 1466/MUM/2014 (ASSESSMENT YEAR 2010-11) SHRI MORYA HOUSE MAKERS SHOP NO. 17, JAI JAWAN MARKET, SECTOR-17, VASHI NAVI MUMBAI-400705. PAN: AALFM5320Q VS. DCIT, CC-39 112 AAYAKAR BHAVAN M.K. ROAD MUMBAI- 400020. (APPELLANT) (RESPONDENT) ASSESSEE BY NONE DEPARTMENT BY SHRI RAHUL RAMAN & SHRI CHANDRA VIJAY DATE OF HEARING 17.06.2021 DATE OF PRONOUNCEMENT 13.08.2021 O R D E R PER SHAMIM YAHYA (AM) :- THESE ARE APPEALS BY THE ASSESSEE AGAINST RESPECTI VE ORDERS OF LEARNED CIT(A) FOR ASSESSMENT YEARS 2008-09 & 2010-11. 2. SINCE THE APPEALS WERE HEARD TOGETHER SO CONSOLI DATED AND DISPOSE OF BY THIS COMMON ORDER. ITA NO. 1995/MUM/2012 3. GROUNDS OF APPEAL READ AS UNDER : [1] ON THE FACTS AND IN LAW AS WELL AS IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE THE CIT (A) HAS ERRED IN SUSTENANCE OF IMPUGNED ESTIMATION OF NET PROFIT AT RS. 89,50,560/- MADE BY THE ASSESSIN G OFFICER WITHOUT TAKING COGNIZANCE OF VARIOUS DOCUMENTS / CONFIRMATIONS FILED WITH HIM. [2] ON THE FACTS AND IN LAW, THE CIT (A) HAS E RRED IN SUSTENANCE OF ADDITIONS OF RS.17,37,413/- MADE U/S.40 (A) (IA) WIT HOUT TAKING COGNIZANCE OF WRITTEN SUBMISSIONS MADE BY THE APPELLANT. [3] ON THE FACTS AND IN LAW, THE CIT (A) HAS E RRED IN SUSTENANCE OF ADDITIONS OF RS. 1,15,000/- MADE U/S. 68 WITHOUT TAKING COGNIZANCE OF SHRI MORYA HOUSE MAKERS 2 WRITTEN SUBMISSIONS SUPPORTED BY CONFIRMATION BY THE PERSON BOOKING THE FLAT UNDER CONSTRUCTION. [4] YOU ARE KINDLY REQUESTED TO DELETE IMPUGNE D AGGREGATE ADDITIONS OF RS.53,29,443/- AS PER THE PROVISIONS OF THE ACT AND OBLIGE. [5] THE ABOVE GROUNDS OF APPEAL ARE WITHOUT PREJ UDICE TO ONE ANOTHER AND THE APPELLANT CRAVE LEAVE TO ADD, TO ALTER AND/OR AME ND ANY OF THE FOREGOING GROUNDS AND TO MAKE NEW OR ADDITIONAL SUBMISSIONS AT THE HEARING OF THE APPEAL AS WELL AS TO SUBMIT FRESH DOCUMENTS AND INFOR MATION AS ADVISED. APROPOS GROUND NO. 1 4. BRIEF FACTS ARE THAT FROM THE PERUSAL OF THE SEI ZED DOCUMENTS AND STATEMENTS RECORDED DURING THE COURSE OF SEARCH, TH E AO HAS OBSERVED THAT THE ASSESSEE HAS SUPPRESSED PROFIT ON SALE OF ITS PROJE CT NAMED 'MORYA APARTMENT', PLOT NO. E- 33, SECTOR-3, KHARGHAR SOLD TO M/S. YER ALA MEDICAL TRUST AND RESEARCH CENTRE. AS PER THE REGISTERED AGREEMENT DA TED 13.06.07 THE SALE CONSIDERATION HAS BEEN SHOWN AT RS. 1,00,00,000/-. HOWEVER, AS PER THE STATEMENT OF SHRI MADAN KOLAMBEKAR RECORDED ON 23.0 1.09 IN REPLY TO Q. NO.9, HE HAS STATED THAT HE HAD RECEIVED CASH OF RS.25 LA KHS ON SALE OF THE ABOVE PROJECT AND HAD OFFERED THE SAME FOR TAXATION. MORE OVER, PAGE NO.45 OF ANNEXURE A-3 SEIZED FROM THE RESIDENCE OF SHRI MADA N KOLAMBEKAR DURING THE COURSE OF SEARCH ON 22.01.09 IS COPY OF DULY SIGNED RECEIPT DATED 27.01.07 IN RESPECT OF RS.25,00,000/- SHOWING THIS AMOUNT OF CA SH RECEIVED BY SHRI MADAN KOLAMBEKAR FROM M/S. YERALA MEDICAL TRUST AND RESEARCH CENTRE. THE COPY OF THIS SEIZED PAGE NO. 45 IS ALSO ENCLOSED AS ANNEXURE O-L TO THE ASSESSMENT ORDER. THE AO HAS FURTHER OBSERVED THAT THIS SEIZED PAGE NO. 45 IS DULY SIGNED RECEIPT DATED 27.01.07 WHICH SHOWS THE TOTAL SALE CONSIDERATION FOR THIS PROJECT AT RS.1,75,00,000/- WHICH ESTABLISHES THAT RS.75,00,000/- WAS RECEIVED IN CASH WHICH WAS NOT ACCOUNTED FOR BY THE ASSESSEE. ACCORDINGLY, SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE TO EX PLAIN THE SUPPRESSED RECEIPT OF RS.75,00,000/-. IN RESPONSE TO THIS SHOW CAUSE NOTICE, THE AR OF THE APPELLANT HAS SUBMITTED ITS REPLY WHICH IS REPROD UCED AT PAGE 15 OF THE ASSESSMENT ORDER. IN ITS REPLY, THE AR OF THE APPEL LANT HAS ADMITTED THAT THE PROJECT BUILDING CONSTRUCTED, PLOT NO. E-33, SECTOR - 3, KHARGHAR WAS SOLD TO SHRI MORYA HOUSE MAKERS 3 M/S. YERALA MEDICAL TRUST AND RESEARCH CENTRE FOR C OST OF RS.1,75,00,000/-. THE AO HAS CONSIDERED THE REPLY OF THE APPELLANT AN D ALSO NOTICED THAT IN THE P & L ACCOUNT ATTACHED WITH THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS SHOWN SALE CONSIDER ATION OF THIS PROJECT AT RS. 1,69,00,000/- INSTEAD OF RS.1,75,00,000/-. AGAIN A SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE TO EXPLAIN THE SAME. IN RESP ONSE TO THIS SHOW CAUSE NOTICE, THE APPELLANT HAS FAILED TO SUBMIT ANY REPL Y BEFORE THE AO, THEREFORE, THE TREATED THE DIFFERENCE AMOUNT OF RS.6,00,000/- AS UNDISCLOSED INCOME OF THE ASSESSEE. FURTHER, THE AO HAS NOTICED THAT AS P ER ASSESSEE'S OWN CALCULATION AND ADMISSION, THE NET PROFIT OF THE PR OJECT WAS SHOWN AT RS.10,92,968/- WITHOUT CONSIDERING THE PROFIT SUPPR ESSION OF RS.75,00,000/-. THEREFORE, THE AO HAS OBSERVED THAT THE NET PROFIT OF THE PROJECT WAS AT RS.85,92,968/-. AS PER THE P & L ACCOUNT SUBMITTED ALONGWITH THE RETURN OF INCOME, THE ASSESSEE HAS SHOWN THE NET PROFIT FROM THE SALE OF THIS PROJECT AT RS.85,87,525/-. HOWEVER, AS PER THE COMPUTATION OF TOTAL INCOME ENCLOSED WITH THE RETURN OF INCOME, THE ASSESSEE HAS COMPUTE D THE TOTAL INCOME AT RS.89,50,560/- WHEREAS IN THE RETURN OF INCOME THE TOTAL INCOME HAS BEEN SHOWN AT RS.54,73,530/-. THE COPY OF THE COMPUTATIO N OF TOTAL INCOME IS ALSO ENCLOSED WITH THE ASSESSMENT ORDER AS ANNEXURE O-2. THUS, THE AO HAS ADOPTED THE TOTAL INCOME AT RS.89,50,560/- SHOWN IN THE COMPUTATION CHART BY THE ASSESSEE ITSELF. 5. UPON ASSESSEES APPEAL LEARNED CIT(A) HELD AS UN DER : I HAVE CONSIDERED THE SUBMISSIONS OF THE APPELLANT, ORDER OF THE AO AND FACTS OF THE CASE CAREFULLY. IT IS NOTICED THE AO HAS OBSERVED THAT THE ASSESSEE HAS SUPPRESSED THE PROFIT ON SALE OF PROJECT NAMED 'MO RYA APARTMENT' SOLD TO M/S. YERALA MEDICAL TRUST AND RESEARCH CENTRE FOR A C ONSIDERATION OF RS.1,75,00,000/-. AS PER THE AGREEMENT DATED 13.06.07 THE SALE CONSIDERATION WAS SHOWN AT RS.1,00,00,000/-. BUT, AS PER THE STATEMENT OF SHRI MADAN KOLAMBEKAR AND THE SEIZED PAGE NO, 45 OF ANNEXURE A-3 SEIZED FROM HIS RESIDENCE, IT IS DULY SIGNED RECE IPT DATED 27.01.07 IN WHICH THE SALE CONSIDERATION OF THIS PROJECT WAS SHOWN AT RS.1,75,00,000/-. THUS, THERE WAS A SUPPRESSION OF RS.1,75,00,000/- RECEIVED IN CASH BY THE ASSESSEE. ACCORDIN GLY, THE AO HAS GIVEN A SHOW CAUSE NOTICE TO THE ASSESSEE TO EXPLAIN THE SAME. IN RE SPONSE TO THIS SHOW SHRI MORYA HOUSE MAKERS 4 CAUSE NOTICE, THE AR OF THE APPELLANT HAS SUBMITTED ITS R EPLY WHICH IS REPRODUCED AT PAGE 15 OF THE ASSESSMENT ORDER IN WHI CH THE ASSESSEE HAS ADMITTED THE SALE PRICE AT RS.1,75,00,000/-. FROM THE PERUSAL OF THE P & L ACCOUNT, THE AO HAS NOTICED THAT THE ASSESSEE HAS SHOWN THE PROFIT AT RS.85,87,525/- BUT AS PER THE COMPUTATION CHART FILED ALONGWITH THE RETURN, THE TOTAL INCOME HAS BEEN SHOWN AT RS.89,50,560/-. BUT I N THE RETURN OF INCOME FILED, THE TOTAL INCOME HAS BEEN SHOWN AT RS.54 ,73,530/-. THUS, THE AO HAS ADOPTED THE TOTAL INCOME AT RS.89,50, 560/- AS COMPUTED IN THE COMPUTATION CHART. ON THE OTHER HAND, THE AR O F THE APPELLANT HAS FAILED TO SUBMIT ANY REPLY OR ANY EVIDENCE TO REBUT T HE FINDING OF THE AO. FROM THE PERUSAL OF THE SEIZED PAPER PAGE NO.45 AND COMPUTATION CHART FILED ALONGWITH THE RETURN WHICH ARE ATTACHED WITH THE ASSESS MENT ORDER AS ANNEXURE O-1 AND 0-2 RESPECTIVELY, IT IS CLEAR THAT TH E SALE CONSIDERATION OF THE PROPERTY NAMED 'MORYA APARTMENT' WAS AT RS. 1,75,00,000/- IN PLACE OF RS.1,00,00,000/- SHOWN BY THE ASSESSEE. W HEN IT WAS CONFRONTED DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS A DMITTED THAT THE ACTUAL SALE CONSIDERATION WAS AT RS.1,75,00,000/- AND RS.75,00,000/- WAS RECEIVED IN CASH WHICH WAS NOT ACCOUNTED FOR. HOWEV ER, IN THE P & L ACCOUNT FILED ALONGWITH THE RETURN, THE ASSESSEE HAS SHOWN THE PROFIT AT RS.85,87,525/-. EVEN IN THE STATEMENT RECORDED DURI NG THE COURSE OF SEARCH, SHRI MADAN KOLAMBEKAR HAS ALSO ADMITT ED THAT HE HAS RECEIVED THE CASH WHICH WAS NOT DECLARED IN THE ORIGINAL TRANSA CTION. AS PER THE COMPUTATION CHART, THE APPELLANT HAS RIGHTLY SHOWN THE INCOME FROM BUSINESS AT RS.85,87,525/- AS DECLARED IN THE P & L ACCOUNT. THE DISALLOWANCE U/S. 40(A) WAS MADE AT RS.7,63, 033/- AND REDUCED THE REMUNERATION PAID TO PARTNERS. THUS, THE G ROSS TOTAL INCOME HAS BEEN COMPUTED AT RS.89,50,558/-. FROM THE PERUSAL OF THE COMPUTATION CHART, IT IS CLEAR THAT THERE IS NO MISTAKE IN COMPUTI NG THE INCOME AND MOREOVER, THE ASSESSEE HAS FAILED TO POINT OUT ANY MI STAKE IN THE COMPUTATION CHART. THEREFORE, IT IS HELD THAT THE AO HAS RIGHTLY ADOPTED THE TOTAL INCOME AT RS.89,50,558/- IN PLACE OF RS.54,73,5 30/- DECLARED IN THE RETURN OF INCOME. THUS, THE GROUND OF APPEAL IS DISM ISSED. 6. AGAINST THE ABOVE ORDER ASSESSEE IS IN APPEAL BE FORE US. WE HAVE HEARD LEARNED DEPARTMENTAL REPRESENTATIVE. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE SEVERAL NOTICES. 7. UPON CAREFUL CONSIDERATION, WE NOTE THAT THIS AD DITION WAS DULY AND PROPERLY MADE ON THE BASIS OF MATERIAL DISCOVERED D URING THE SEARCH. IN OUR CONSIDERED OPINION LEARNED CIT(A) HAS TAKEN A CORRE CT VIEW OF THE MATTER AND HAS ADDRESSED ALL THE ISSUES. ACCORDINGLY, WE UPHOL D THE ORDER OF LEARNED CIT(A). APROPOS GROUND NO. 2 SHRI MORYA HOUSE MAKERS 5 8. BRIEF FACTS THE AO HAS NOTICED THAT AS PER THE A SSESSMENT ORDERS FOR THE AYS. 2005-06 TO 2007-08, THE ASSESSEE WAS NOT ALLOW ED FOR CAPITALIZATION OF CERTAIN EXPENSES IN THESE YEARS ON ACCOUNT OF NON-D EDUCTION OF TAX (TDS), THE DETAIL OF WHICH IS GIVEN AT PAGE 18 OF THE ASSESSME NT ORDER AMOUNTING TO RS.13,85,565/-. DURING THE YEAR UNDER CONSIDERATION , THE ASSESSEE HAS BOOKED SALE IN RESPECT OF 'MORYA APARTMENT' PROJECT AND CO MPUTED THE PROFIT ACCORDINGLY. THE AMOUNT OF RS.13,85,565/- WHICH WAS DISALLOWED TO BE CAPITALIZED DURING THE AYS. 2005-06 TO 2007-08 ON A CCOUNT OF NON-DEDUCTION OF TDS WAS DISALLOWED IN THE COMPUTATION OF TOTAL I NCOME AND ADDED BACK TO THE TAXABLE INCOME. DURING THE ASSESSMENT PROCEEDIN GS, THE AO HAS CALLED FOR THE DETAILS OF TDS. IN RESPONSE TO THIS SHOW CAUSE NOTICE, THE AR OF THE APPELLANT HAS SUBMITTED THE DETAILS FROM THE PERUSA L OF WHICH THE AO HAS NOTICED THAT EXPENSES OF RS.9,12,107/- ON ACCOUNT O F CONSTRUCTION EXPENSES AND RS.4,34,100/- ON ACCOUNT OF LABOUR CHARGES WERE CLAIMED BUT NO TDS WAS DEDUCTED ON THESE EXPENSES. ACCORDINGLY, THE AO HAS GIVEN A SHOW CAUSE NOTICE TO THE ASSESSEE TO EXPLAIN THE SAME. IN RESP ONSE TO THE SHOW CAUSE NOTICE, THE ASSESSEE HAS NOT SUBMITTED ANY DETAIL. THUS, THE AO HAS PRESUMED THAT THE AO HAS NOT DEDUCTED TAX NOR DEPOSITED IN T HE GOVERNMENT ACCOUNT. THEREFORE, THE AO HAS MADE A DISALLOWANCE OF RS.13, 46,207/- U/S. 40(A)(IA) OF THE IT. ACT. SINCE THE ASSESSEE HAS ALREADY DISALLO WED RS.7,63,033/- U/S. 40(A) IN THE COMPUTATION OF INCOME, THEREFORE, THE BALANC E OF RS.5,83,174/-WAS DISALLOWED. THE AO HAS FURTHER NOTICED THAT IN RESP ECT OF 'MAYURESH APARTMENT' PROJECT, THE ASSESSEE HAS CLAIMED CAPITA LIZATION OF RS.3,51,848/-ON ACCOUNT OF CONSTRUCTION EXPENSES BUT NO TDS DETAIL WAS SUBMITTED AS THE ASSESSEE WAS SPECIFICALLY ASKED TO SUBMIT THE DETAI LS. THEREFORE, THE AO HAS MADE DISALLOWANCE OF RS.3,51,848/- U/S.40(A)(IA) OF THE IT. ACT. 9. UPON ASSESSEES APPEAL LEARNED CIT(A) HELD AS UN DER :- I HAVE CONSIDERED THE SUBMISSIONS OF THE APPELLANT, ORDER OF THE AO AND FACTS OF THE CASE CAREFULLY. IT IS NOTICED THAT THE ASS ESSEE HAS MADE PAYMENT OF RS.13,85,565/- ON ACCOUNT OF CONSTRUCTION EXPENSE S FOR 'MORYA APARTMENT' SHRI MORYA HOUSE MAKERS 6 AND RS.3,51,848/- CONSTRUCTION EXPENSES FOR 'MAYURES H APARTMENT'. THE AO HAS SPECIFICALLY ASKED THE ASSESSEE TO SUBMIT THE DETAIL S OF TDS ON THESE EXPENSES. BUT THE ASSESSEE HAS FAILED TO SUBMIT ANY DETA ILS, THEREFORE, THE AO HAS ADDED BACK THIS AMOUNT U/S. 40(A)(IA) OF THE I.T. ACT. ON THE OTHER HAND, THE AR OF THE APPELLANT HAS SUBMITTED THAT THE CAS E OF THE ASSESSEE IS COVERED BY THE AMENDMENT BROUGHT OUT BY THE FINANCE ACT , 2010 TO SECTION 40(A)(IA) W.E.F. 01.04.2010. DURING THE APPELLATE PROCEEDINGS, THE AR OF THE APPE LLANT WAS ASKED TO UBMIT WHETHER ITS CASE IS COVERED WITH THE DECISION OF HON 'BLE MUMBAI RIBUNAL SPECIAL BENCH IN CASE OF BHARATI SHIPYARD LTD. VS. D CIT (132 ITD 110) ITA NO. 2404/MUM/2009 - AY 2005-06 DATED 09.09.2011. IN RESPONSE TO THIS, THE AR OF THE APPELLANT HAS SUBMITTED ITS REPLY WHICH IS REPRODUCED AS ABOVE. THE AR OF THE APPELLANT HAS ADMITTED THAT THE HON'BLE TR IBUNAL SPECIAL BENCH HAS DECIDED THAT THIS AMENDMENT IS NOT WITH RETR OSPECTIVE EFFECT AND THE CASE OF THE APPELLANT IS NOT COVERED BY THIS AMENDME NT. HOWEVER, THE AR OF THE APPELLANT HAS RAISED ANOTHER ARGUMENT THAT PROVISI ONS OF SECTION 40(A)(IA) IS APPLICABLE ONLY WHEN THERE IS AN AMOUNT OUTSTANDING AND PAYABLE. THIS ARGUMENT OF THE APPELLANT IS ANSWERED BY THE HON'BLE CALCUTTA TRIBUNAL IN CASE OF DCIT VS. ASHIKA STOCK BROKING LT D. (44 SOT 556) WHERE IT IS HELD THAT WHETHER EVEN THE SUM IS PAYABLE OR PAID TO CONTRACTOR OR SUB- CONTRACTOR ON WHICH TAX IS DEDUCTIBLE AT SOURCE AS PER THE PROVISIONS OF THE I.T. ACT, SECTION 40(A)(IA) WOULD BE ATTRACTED. KEEPIN G IN VIEW THE TOTALITY OF FACTS AND CIRCUMSTANCES, IT IS HELD THAT THE CASE OF THE APPELLANT IS COVERED BY THE DECISION OF HON'BLE MUMBAI TRIBUNAL IN CASE OF BHARATI SHIPYARD AND THE HON'BLE CALCUTTA TRIBUNAL IN CASE OF DCIT VS. ASH IKA STOCK BROKING LTD. THEREFORE, IT IS HELD THAT THE CASE OF THE ASSESSEE IS COVERED U/S. 40(A)(IA) AND THE ADDITION MADE BY THE AO ON THIS ACCOUNT IS UPHELD AND THE GROUND OF APPEAL IS DISMISSED. 10. UPON HEARING LEARNED DEPARTMENTAL REPRESENTATIV E AND PERUSING THE RECORDS, WE FIND THAT LEARNED CIT(A) HAS TAKEN CORR ECT VIEW OF THE MATTER AND IT DOES NOT NEED ANY INTERFERENCE IN OUR PART. ACCO RDINGLY, WE UPHOLD THE SAME. APROPOS GROUND NO. 3 11. BRIEF FACTS ARE THAT ASSESSEE HAS RECEIVED CASH OF RS.1,15,000/- DURING THE YEAR UNDER CONSIDERATION. ACCORDINGLY, A SHOW C AUSE NOTICE WAS ISSUED TO THE ASSESSEE TO EXPLAIN THE SAME BUT NO INFORMAT ION WAS SUBMITTED BEFORE THE AO, THEREFORE, HE HAS TREATED THIS AMOUNT AS UN EXPLAINED CASH CREDIT U/S. 68 OF THE I.T. ACT. BEFORE LEARNED CIT(A) THE AR OF THE ASSESSEE SUBMITTED THAT IT WAS BOOKING AMOUNT RECEIVED FROM SHRI SAHUL HAMEED AND PHOTOCOPY OF CONFIRMATION AND PAN WAS SUBMITTED. BU T, LEARNED CIT(A) SHRI MORYA HOUSE MAKERS 7 REJECTED THE SAME AS NO REASON WAS GIVEN FOR NOT SU BMITTING THE DETAILS BEFORE THE AO WHEN IT WAS SPECIFICALLY CALLED FOR. HENCE, LEARNED CIT(A) REJECTED THE ADDITIONAL EVIDENCE AND DISMISSED THE ASSESSEES CLAIM. 12. UPON HEARING LEARNED DEPARTMENTAL REPRESENTATIV E AND PERUSING THE RECORDS, WE FIND THAT THE ASSESSEE HAS DULY SUBMITT ED ADDITIONAL EVIDENCES BEFORE LEARNED CIT(A). IT WAS DULY SUBMITTED THAT T HE AMOUNT RECEIVED WAS BOOKING ADVANCE AND NAME OF THE PARTY, HIS CONFIRMA TION AND PHOTOCOPY OF THE PAN WAS ALSO SUBMITTED. HOWEVER, LEARNED CIT(A ) SIMPLY REJECTED THE ADDITIONAL EVIDENCE ON THE GROUND THAT IT WAS NOT S UBMITTED EARLIER. IN OUR CONSIDERED OPINION INTEREST OF JUSTICE DEMANDS THIS ISSUE MAY BE REMITTED TO THE ASSESSING OFFICER. THE ASSESSING OFFICER IS DIR ECTED TO CONSIDER THIS ISSUE AFRESH BY TAKING INTO ACCOUNT ADDITIONAL EVIDENCE F ILED BY THE ASSESSEE. NEEDLESS TO ADD THE ASSESSEE SHOULD BE GRANTED ADEQ UATE OPPORTUNITY OF BEING HEARD. 13. IN THE RESULT, THIS APPEAL BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. ITA NO. 5264/MUM/2013 14. GROUNDS OF APPEAL READ AS UNDER :- [1] ON THE FACTS AND IN LAW AS WELL AS IN THE CIRCUMSTAN CES OF THE APPELLANT'S CASE THE CIT (A) HAS ERRED IN SUSTENANCE OF IMPUGNED ADDITIONS OF RS.L 1,83,174/- MADE BY THE AO VIDE HIS RECTIFICATION ORDER U/S. 154 DATED 12.10.2012. [2] ON THE FACTS AND IN LAW, IMPUGNED RECTIFICA TION IMPUGNED PROCEEDINGS INITIATED BY THE SAID AO WITHOUT VALID AND LEGAL JURI SDICTION AND WITHOUT COMPLYING WITH TERMS OF SECTION 154 OF THE ACT. [3] ON THE FACTS AND IN LAW, LEARNED AO HAS ER RED IN ASSUMING THAT THERE WAS APPARENT MISTAKE IN THE ASSESSMENT ORDER PASSED BY HIS PREDECESSOR. IMPUGNED ASSESSMENT ORDER WAS ASSAILED BEFORE THE C IT (A) UNDER SECTION 246A AND ORDER PASSED BY THE SAID CIT (A) U/S.250 I S FURTHER ASSAILED BEFORE THE HON'BLE TRIBUNAL U/S. 253 VIDE ITA NO.1995/MUM/2 012 DATED 26.03.2012. ORIGINAL ASSESSMENT ORDER WAS 'MERGED WITH THE APPEAL ORDER U/S. 250' THERE WAS NO ASSESSMENT ORDER EXISTING WHICH IS REC TIFIABLE U/S. 154 BY THE SAID AO. SHRI MORYA HOUSE MAKERS 8 [4] ON THE FACTS AND IN LAW, AS THE MATTER IS PE NDING BEFORE THE HIGHER AUTHORITY [HON'BLE I.T.A.T.], THE SAID AO HAS NO LEG AL AND VALID AUTHORITY TO AMEND IMPUGNED ASSESSMENT ORDER U/S. 154. [5] YOU ARE KINDLY REQUESTED TO CANCEL IMPUGNED RECTIFICATION ORDER AS PER THE PROVISIONS OF THE ACT AND OBLIGE. 15. THE FACTS OF THE CASE ARE THAT IN THIS CASE, OR DER U/S. 143(3) R.W.S. 153C OF THE I.T. ACT, 1961 WAS PASSED ON 29.12,2010 DETE RMINING THE TOTAL INCOME AT RS.1,08,02,973/-. ON PERUSAL OF THE RECORD, IT WAS FOUND BY THE ASSESSING OFFICER THAT - (I) ADDITION OF RS.6,00,000/- HAD BEEN MADE IN P ARA 10.3 OF THE ORDER BUT THE SAME REMAINED TO BE ADDED IN THE COMPUTATIO N OF TOTAL INCOME. (II) ADDITION OF RS.5,83,174/- HAD BEEN MADE AS P ER PARA 10.7 OF THE ORDER BUT THE SAME REMAINED TO BE ADDED IN THE COMP UTATION OF TOTAL INCOME. 16. WITH A VIEW TO RECTIFY THE MISTAKE IN CALCULATI ON OF THE TOTAL INCOME, THE ASSESSEE WAS ISSUED NOTICE U/S. 154 DATED 29.09 .2012 WHEREIN THE MISTAKE WAS POINTED OUT TO IT AND ITS REPLY WAS CAL LED FOR BY 05.10.2012. BUT THE ASSESSEE DID NOT SUBMIT ANY REPLY. THEREFORE, T HE ASSESSING OFFICER PRESUMED THAT THE ASSESSEE HAD NOTHING TO SAY IN TH E MATTER. THE MISTAKE BEING APPARENT FROM THE RECORD, THE SAME WAS RECTIF IED AS PER THE PROVISIONS OF SECTION 154 AND THE AMOUNTS OF RS.6,00,000/- AND RS.5,83,174/- WERE ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 17. AGAINST THIS ACTION OF THE ASSESSING OFFICER AS SESSEE APPEALED BEFORE LEARNED CIT(A). 18. LEARNED CIT(A) NOTED THAT IN THE APPELLATE PROC EEDINGS, THE ASSESSEE HAS SUBMITTED THAT THE ORIGINAL ASSESSMENT ORDER HA D MERGED WITH THE APPEAL ORDER DATED 07.02.2012 OF THE CIT(A) AND WAS FURTHER SUB-JUDICE AS THE APPEAL BEFORE THE TRIBUNAL AGAINST THE IMPUGNED APPEAL ORDER WAS PENDING FOR ADJUDICATION. THAT ON THE FACTS AND IN LAW, THEREFORE, THE ID. AO SHRI MORYA HOUSE MAKERS 9 HAD NO LEGAL AND VALID JURISDICTION TO INITIATE THE IMPUGNED RECTIFICATION PROCEEDINGS. THAT THE ORIGINAL ASSESSMENT ORDER WAS MERGED WITH THE APPEAL ORDER U/S. 250 AND THERE WAS NO ASSESSMENT ORDER EX ISTING WHICH WAS RECTIFIABLE U/S. 154 BY THE AO. THAT AN I.T. AUTHO RITY CANNOT AMEND AN ORDER PASSED BY ANOTHER AND DIFFERENT I.T. AUTHORIT Y. 19. LEARNED CIT(A) WAS NOT CONVINCED. HE HELD AS UN DER :- I HAVE CONSIDERED THE ABOVE SUBMISSIONS OF THE ASSES SEE. HOWEVER, I DO NOT FIND THE SAME TENABLE IN VIEW OF THE FACT THAT THE ADDITI ON OF RS.6,00,000/- AND RS.5,83,174/- WERE NOT THE SUBJECT MATTERS OF AD JUDICATION BEFORE THE ID. CIT(A) AND THE SAME IS ALSO NOT THE SUBJECT MATTER OF ADJUDICATION BEFORE THE HON'BLE ITAT. WHEN THE ADDITIONS AS ABOVE HAVE NOT B EEN CONSIDERED AND DECIDED BY THE ID. CIT(A) AT ALL, THE QUESTION OF THESE ISSUES IN TNE ASSESSMENT ORDER MERGING WITH THE ORDER OF THE ID. CIT (A) DOES NOT ARISE. FURTHER, THE ACTION OF THE AO IS ALSO AS PER LAW IN VI EW OF THE PROVISIONS OF SECTION 154(1A) OF THE I.T. ACT, 1961 SINCE THE RECTI FICATION RELATES TO MATTERS OTHER THAN THE MATTERS WHICH HAVE BEEN CONSIDERED AND DECIDED IN THE APPELLATE PROCEEDINGS. REGARDING THE OTHER CONTENTION OF THE ASSESSEE, THE ORDER WHICH HAS BEEN AMENDED U/S. 154 OF THE I.T. AC T, 1961 HAS BEEN PASSED BY AN ASSESSING OFFICER (DCIT) AND THE SAME HAS BEEN RECTIFIED AGAIN BY THE SAME INCOME-TAX AUTHORITY. IT IS NOT AS IF THE ORDER OF THE ID. CIT(A) IS SOUGHT TO BE RECTIFIED BY THE DCIT. HENCE, THE CONTENT ION OF THE ASSESSEE THAT THE ORDER HAS BEEN RECTIFIED BY A DIFFERENT. I.T. AUTH ORITY CANNOT BE ACCEPTED. THE ARGUMENTS OF THE ASSESSEE ARE, THEREFORE, REJECTE D. 4.1 THE ASSESSEE, WITHOUT PREJUDICE TO THE ABOVE LEGAL CONTENTIONS, HAS FURTHER SUBMITTED THAT ON MERITS ALSO, THERE WAS NO MISTAKE AS ASSUMED BY THE AO AND HAS ADVANCED VARIOUS ARGUMENTS ON MERITS. IN MY OPINI ON, THE ARGUMENTS OF THE ASSESSEE ON MERITS TO CONTEND THAT THE ADDITIONS OF RS.6,00,000/- AND RS.5,83,174/- WAS NOT CORRECT CANNOT BE TAKEN COGNIZANC E OF IN AN APPELLATE PROCEEDING AGAINST AN ORDER PASSED U/S. 154 OF THE I T. ACT, 1961. WHAT IS REQUIRED TO BE SEEN BY THE APPELLATE AUTHORITY IS NOT TH E MERITS OF THE ADDITION BUT WHETHER THERE IS A MISTAKE APPARENT FROM THE RECORDS WHICH IS RECTIFIABLE U/S. 154(1) OF THE IT. ACT, 1961. 4.2 PERUSAL OF THE ORDER U/S. 143(3) RW.S. 153C DAT ED 29.12.2010 SHOWS THAT IN PARA 10.3 OF THE ASSESSMENT ORDER, THE ASSESSING OFF ICER HAS CLEARLY GIVEN A FINDING IN WHICH AN AMOUNT OF RS.6,00,000/- HAS BEEN HELD AS UNDISCLOSED AND HAS ALSO OBSERVED THAT THE SAME IS ADDED TO THE TOTAL INC OME. SIMILARLY, IN PARA 10.7, THE ASSESSING OFFICER HAS GIVEN A CLEAR FINDIN G THAT THE AMOUNT OF RS.5,83,174/- IS DISALLOWED AND ADDED BACK TO THE TOTA L INCOME OF THE ASSESSEE. HOWEVER, THE ASSESSING OFFICER HAS OMITTED TO ADD THE ABOVE AMOUNTS WHILE COMPUTING THE TOTAL INCOME OF THE ASSESSEE IN THE ASSES SMENT ORDER. THIS WOULD CLEARLY AMOUNT TO A MISTAKE APPARENT FROM THE RECO RDS WITHIN THE PROVISIONS OF SECTION 154(1) OF THE IT. ACT, 1961. HEN CE, THE ACTION OF THE ASSESSING OFFICER IS AS PER LAW. THE SAME IS, THEREF ORE, UPHELD. SHRI MORYA HOUSE MAKERS 10 5. THE ASSESSEE HAS SUBMITTED THAT THE ASSESSING OFFICE R OUGHT TO HAVE RECTIFIED HIS MISTAKE OF WHAT HAS BEEN ADDED WRONGLY. IT HAS BEE N CLAIMED THAT THE ASSESSING OFFICER HAD WRONGLY DISALLOWED EXPENSES O F RS.3,51,848/-. 5.1 I HAVE CONSIDERED THE ABOVE SUBMISSIONS OF THE ASSESSEE. HOWEVER, THE ISSUE WHETHER THE ABOVE NOTED EXPENSES HAVE BEEN WRO NGLY DISALLOWED OR NOT IS OUTSIDE THE PURVIEW OF THE PRESENT PROCEEDINGS. IN ANY CASE, THIS ISSUE HAS ALREADY BEEN ADJUDICATED UPON BY THE ID.CIT(A) IN H IS ORDER DATED 07.02.2012. IN VIEW OF THE AFORESAID REASONS, THE ACTION OF THE AS SESSING OFFICER OF PASSING THE ORDER UNDER SECTION 154 IS UPHELD AND THE GROUNDS OF APPEAL FILED BY THE ASSESSEE ARE DISMISSED. 20. UPON HEARING LEARNED DEPARTMENTAL REPRESENTATIV E AND PERUSING THE RECORD, WE FIND OURSELVES DULY IN AGREEMENT WITH TH E ORDER OF LEARNED CIT(A). THE ASSESSING OFFICER HAVING MADE ADDITION BY DISCU SSING IN THE ASSESSMENT ORDER AND MAKING THE ADDITION IN THE BODY THEREOF A ND HAS MISTAKENLY OMITTED IT FROM THE COMPUTATIONAL PART. HENCE, IN OUR CONSI DERED OPINION THERE IS NO INFIRMITY IN THE ORDER UNDER SECTION 154 CORRECTING THE SAME. AS RIGHTLY POINTED OUT BY LEARNED CIT(A) THE MERITS IN THIS RE GARD COULD NOT HAVE BEEN GONE INTO BY THE ASSESSING OFFICER IN THE PROCEEDIN GS UNDER SECTION 154 OF THE ACT. HENCE, WE UPHOLD THE ORDER OF LEARNED CIT(A). 21. IN THE RESULT, THIS APPEAL BY THE ASSESSEE STAN DS DISMISSED. ITA NO. 1466/MUM/2014 22. GROUNDS OF APPEAL READ AS UNDER : 1. ON THE FACTS AND IN THE CIRCUMSTANCES AND IN LAW, TH E PROCEEDINGS INITIATED U/S 147 OF THE I. T. ACT IS INVALID AND BA D IN LAW. 2. ON THE FACTS AND IN THE CIRCUMSTANCES AND IN LAW, THE ASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 147 OF THE I.T. ACT IS INVAL ID AND BAD IN LAW. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LEARNED C.I.T. (A) ERRED IN DISMISSING THE APPEAL AND THAT TOO WITHOUT EVEN GIVING FULL AND PROPER OPPORTUNITY OF BEING HEARD IN THE MATTER. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LEARNED C.I.T.(A) ERRED IN DISMISSING THE APPEAL AND THAT TOO W ITHOUT EVEN APPRECIATING FULLY AND PROPERLY THE FACTS OF THE CASE . SHRI MORYA HOUSE MAKERS 11 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LEARNED C.I.T.(A) ERRED IN UPHOLDING THE ACTION OF THE A.O. I N MAKING AN ADDITION OF AN AMOUNT OF RS.51,99,883/-. 6. WITHOUT PREJUDICE TO GROUND NO.5, AND ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW/THE LEARNED C.I .T.(A) ERRED IN UPHOLDING THE ACTION OF THE A.O. IN MAKING AN ADDITION OF AN AMO UNT OF RS.48,77,140/-. 7. WITHOUT PREJUDICE TO GROUND NO. 5 AND ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C.I .T.(A) ERRED IN UPHOLDING THE ACTION OF THE A.O. IN MAKING AN ADDITION OF AN AMO UNT OF RS.6,734/-. 8. WITHOUT PREJUDICE TO GROUND NO. 5 AND ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C.I .T.(A) ERRED IN UPHOLDING THE ACTION OF THE A.O. IN MAKING AN ADDITION OF AN AMO UNT OF RS.3,16,009/-. 23. BRIEF FACTS ARE THAT THE IT IS OBSERVED FROM TH E RECORD THAT IN THE COURSE OF ASSESSMENT PROCEEDINGS VERIFICATION LETTERS U/S. 133(6) OF THE ACT WERE ISSUED TO 17 PARTIES IN ORDER TO VERIFY THE GENUINENESS OF FLAT PURCHASE ADVANCES GIVEN BY THE PARTIES AND THE SUNDRY CREDITORS' BALANCES C LAIMED AS OUTSTANDING AS ON 31.03.2010. IN THIS CONNECTION, REPLIES WERE RECEIV ED FROM ONLY 3 PARTIES CONFIRMING THE TRANSACTIONS WITH THE APPELLANT. 10 OUT OF 17 LETTERS WERE RETURNED UNDELIVERED BY POSTAL AUTHORITIES WITH THE REMARKS LEFT/INTIMATION/ INSUFFICIENT ADDRESS'. A PARTY NAMED KRISHNA ELECTR IC HARDWARE VIDE LETTER DATED 14.12.2012 DENIED THE TRANSACTIONS WITH THE A PPELLANT. IN 2 CASES, THERE WAS NO INTIMATION FROM THE POSTAL AUTHORITIES WHETH ER THE LETTERS WERE SERVED ON THE PARTIES. NOR WERE THESE LETTERS RETURNED UNS ERVED BY THE POSTAL AUTHORITIES. THEREFORE, VIDE ORDER SHEET PROCEEDING S DATED 08.01.2013, THE REPRESENTATIVE OF THE APPELLANT WAS ASKED TO GIVE E XPLANATION IN RESPECT OF THE ABOVE PARTIES WHERE THE VERIFICATION LETTERS WERE R ETURNED UNSERVED BY THE POST OFFICE AND ALSO TO PRODUCE CONFIRMATIONS FROM THE P ARTIES. THE REPRESENTATIVE OF THE APPELLANT WAS ALSO ALLOWED INSPECTION OF THE LE TTER DATED 14.12.2012 RECEIVED FROM KRISHNA ELECTRIC HARDWARE WHICH HAD D ENIED ANY TRANSACTION WITH THE APPELLANT. ON 18.01.2013, THE REPRESENTATI VE OF THE APPELLANT GAVE NEW AND LATEST ADDRESSES OF 5 PARTIES WHERE LETTERS U/S.!33(6) WERE ISSUED BY THE A.O. HOWEVER, NO CONFIRMATIONS OR LEDGER ACCOUN T COPIES WERE FILED BY THE APPELLANT AS REQUIRED BY THE A.O. SHRI MORYA HOUSE MAKERS 12 24. THEREFORE, THE APPELLANT WAS ASKED TO EXPLAIN W HY IT HAD GIVEN INCORRECT ADDRESSES IN THE INITIAL SUBMISSIONS FILED DURING T HE COURSE OF ASSESSMENT PROCEEDINGS. IN ITS LETTER DATED 18.01.2013, THE AP PELLANT STATED THAT IT HAD PURCHASED HARDWARE MATERIAL FROM KRISHNA ELECTRIC H ARDWARE WHICH WAS ONLY ONE TIME PURCHASE AND THAT IT WAS NOT NECESSARY THA T THE PARTY SHOULD KNOW APPELLANT. HOWEVER, THE A.O. DID NOT FIND THE REPLY OF THE APPELLANT TO BE ACCEPTABLE AND THE AMOUNT OF RS.6,734/- SHOWN AS DU E TO THE PARTY WAS TREATED AS UNEXPLAINED CREDIT AND ADDED BACK TO THE TOTAL INCOME OF THE APPELLANT. IN RESPECT OF THE 10 PARTIES ON WHOM VER IFICATION LETTERS COULD NOT BE SERVED, THE AR OF THE APPELLANT FAILED TO PRODUCE T HE CONFIRMATION LETTERS FROM THESE PARTIES OR PRODUCE THE ABOVE PARTIES FOR EXAM INATION OR PRODUCE LEDGER COPIES OF THESE PARTIES AS APPEARING IN ITS BOOKS O F ACCOUNT. THE APPELLANT ALSO FAILED TO SATISFACTORILY EXPLAIN AS TO WHAT PREVENT ED IT FROM GIVING THE CORRECT ADDRESSES OF THE SUNDRY CREDITORS ETC. IN THE FIRST PLACE IN ITS SUBMISSIONS FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IN VIE W OF THE ABOVE, AS NECESSARY EVIDENCE IN SUPPORT OF THE ADVANCES CLAIM ED TO HAVE RECEIVED FROM THESE PARTIES WAS NOT FILED BY THE APPELLANT, THE S AME WERE TREATED AS UNEXPLAINED CREDITS U/S.68 AND ASSESSED AS INCOME O F THE APPELLANT. SIMILARLY, IN RESPECT OF SUNDRY CREDITORS ALSO, UPON ITS FAILU RE TO FILE THE CONFIRMATION LETTERS FROM CONCERNED PARTIES, THE SAME WERE TREAT ED AS UNEXPLAINED CREDITS U/S.68 AND THUS, AN ADDITION OF RS.51,93,149 (RS.48 ,77,140 + RS.3,16,009) WAS MADE TO THE LOSS RETURNED BY THE APPELLANT. 25. UPON ASSESSEES APPEAL LEARNED CIT(A) HELD AS U NDER :- I HAVE CONSIDERED THE 'STATEMENT OF FACTS' AND PERUSED THE IMPUGNED ORDER. IT IS OBSERVED THAT THE A.O. MADE ADDITION OF RS.51, 99,883/- U/S. 68 ON ACCOUNT OF UNEXPLAINED CASH CREDITS AS THE APPELLANT F AILED TO FURNISH NECESSARY CONFIRMATIONS IN RESPECT OF ITS SUNDRY CRE DITORS AS WELL AS OTHER PARTIES FROM WHOM ADVANCES WERE SHOWN TO HAVE BEEN RE CEIVED TOWARDS ALLOTMENT/SALE OF FLATS. IT IS NOW WELL-SETTLED THAT THE ONUS LIES ON THE APPELLANT TO ESTABLISH THE IDENTITY OF THE CREDITORS, THE FINANCIAL CAPACITY OF THE CREDITORS TO ADVANCE THE MONEY AND THE GENUINENESS O F THE TRANSACTIONS. IN THE INSTANT CASE, IT IS OBSERVED FROM THE RECORD TH AT THE APPELLANT FAILED TO DISCHARGE SUCH ONUS AT THE TIME OF ASSESSMENT. EVEN IN THE COURSE OF SHRI MORYA HOUSE MAKERS 13 APPELLATE PROCEEDINGS, THE APPELLANT HAS NEITHER MADE ANY SUBMISSIONS NOR FURNISHED ANY MATERIALS SUCH AS CONFIRMATIONS FROM C ONCERNED PARTIES SO AS TO PROVE THE IDENTITY AND FINANCIAL CAPABILITY OF THE SAID PARTIES AND ESTABLISH THE GENUINENESS OF ITS TRANSACTIONS WITH SUCH PARTIES. AS REGARDS ADVANCES CLAIMED TO HAVE BEEN RECEIVED AGAINST BOOKING OF FLATS , NO AGREEMENTS WITH THE PARTIES HAVE BEEN PLACED ON RECORD. NOR IS THERE ANY EVIDENCE TO SHOW THAT THE APPELLANT HAS UNDERTAKEN ANY CONSTRUCTION OF FLA TS. I ALSO DO NOT FIND MERIT IN THE PLEA OF THE APPELLANT THAT THE ADDITIONS MADE BY THE A.O. ARE BASED ON ASSUMPTIONS, SURMISES OR CONJECTURES. THE A.O. IS FOUND TO HAVE MADE DUE ENQUIRIES, CONFRONTED THE APPELLANT WITH THE OUTCOME OF SUCH ENQUIRIES AND DRAWN APPROPRIATE INFERENCES BASED ON THE FACTS OF THE CASE. IN VIEW OF THE ABOVE DISCUSSION, IT IS CRYSTAL CLEAR THAT THE APPELLANT HAS NOT BEEN ABLE TO ADDUCE ANY CONCRETE EVIDENCE OR MATERIAL S IN THE COURSE OF APPELLATE PROCEEDINGS SO AS TO DEMONSTRATE THAT THE AD DITION MADE BY THE A.O. WAS IN ANY WAY ERRONEOUS OR INCORRECT. THEREFOR E, I DO NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE FINDINGS OF THE A.O . WHICH ARE HEREBY CONFIRMED. HIS ACTION IN MAKING ADDITION OF RS.51,9 9,883/- IS ACCORDINGLY UPHELD. HENCE, GROUNDS BEARING NOS. L AND 2 OF THE P RESENT APPEAL ARE DISMISSED. 26. UPON HEARING LEARNED DEPARTMENTAL REPRESENTATIV E AND PERUSING THE RECORD IT IS NOTED THAT THE ISSUE IN THIS CASE IS ADDITION OF SUNDRY CREDITORS AND ADVANCES FOR BOOKING BECAUSE THE PARTIES HAVE N OT RESPONDED TO THE NOTICE UNDER SECTION 133(6) OF THE ACT AND ADDITION HAS BEEN DONE UNDER SECTION 68 OF THE I.T. ACT. HERE WE NOTE THAT IN TH E ORDER OF THE ASSESSING OFFICER, ONLY BALANCES AS AT THE CLOSING OF THE YEA R HAS BEEN MENTIONED. IT IS NOT MENTIONED WHETHER THEY AROSE DURING THE YEAR OR THEY ARE COMING FROM EARLIER YEAR. IN CASE THEY ARE COMING FROM EARLIER YEAR, ADDITION UNDER SECTION 68 OF THE ACT IS NOT AT ALL PERMISSIBLE. HENCE, IN OUR CONSIDERED OPINION THIS ISSUE NEEDS TO BE REMITTED TO THE FILE OF THE ASSES SING OFFICER. THE ASSESSING OFFICER SHALL EXAMINE THE ISSUE AFRESH IN THE LIGHT OF OUR OBSERVATION AS ABOVE AND THEREAFTER HE WILL PASS AN ORDER IN ACCORDANCE WITH LAW. 27. IN THE RESULT, THIS APPEAL IS ALLOWED FOR STATI STICAL PURPOSES. SHRI MORYA HOUSE MAKERS 14 28. IN THE RESULT, ITA NO. 1995/MUM/2012 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES, ITA NO. 1466/MUM/2014 STANDS ALLOWED FOR STATISTICAL PURPOSES & ITA NO. 5264/MUM/2013 IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 13.8.2021. SD/- SD/- (PAVANKUMAR GADALE) (SHAM IM YAHYA) JUDICIAL MEMBER ACCO UNTANT MEMBER MUMBAI; DATED : 13/08/2021 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR) PS ITAT, MUMBAI