JCIT (OSD) CC 39, MUMBAI V. NALIN J GUPTA, MUMBAI

ITA 5413/MUM/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3849 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 5 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2016
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 13-04-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 28-08-2012
• Court: TRIBUNAL
• Department Lawyers: A S WELL AS
• Assessee Lawyers: AGGRIEVED IMPUGNED
• Keywords: Bogus purchase; Unexplained investment; Search and seizure; Retrospective amendment; Notional interest; Tax effect
• Section: 69C

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER ITA NOS.5413 TO 5418/MUM/2012 ASSESSMENT YEARS:2004-05 TO 2009-10 DCIT, CENTRAL CIRCLE-39, R. NO.32(1), GROUND FLOOR AAYAKAR BHAVAN,M.K.ROAD MUMBAI-400020 SHRI NALIN J. GUPTA, 16A, ANDHERI INDUSTRIAL ESTATE, VEERA DESAI ROAD, ANDHERI(WEST), MUMBAI-400058 ( / REVENUE) ( !'# $ /ASSESSEE) PAN. NO. AAEPG9920B ITA NO.5419/MUM/2012 ASSESSMENT YEAR: 2010-11 DCIT, CENTRAL CIRCLE-39, R. NO.32(1), GROUND FLOOR AAYAKAR BHAVAN,M.K.ROAD MUMBAI-400020 SHRI NALIN J. GUPTA, 16A, ANDHERI INDUSTRIAL ESTATE, VEERA DESAI ROAD, ANDHERI(WEST), MUMBAI-400058 ( / REVENUE) ( !'# $ /ASSESSEE) PAN. NO.AAEPG9920B 2 ITA NO.5793/MUM/2012 ASSESSMENT YEAR: 2010-11 SHRI NALIN J. GUPTA, 16A, ANDHERI INDUSTRIAL ESTATE, VEERA DESAI ROAD, ANDHERI(WEST), MUMBAI-400058 JCIT(OSD), CENTRAL CIRCLE-39, R. NO.32(1), GROUND FLOOR AAYAKAR BHAVAN,M.K.ROAD MUMBAI-400020 ( !'# $ /ASSESSEE) ( / REVENUE) PAN. NO.AAEPG9920B % & ' $ ( / DATE OF HEARING : 17/02/2016 ' $ ( / DATE OF ORDER: 22/02/2016 / O R D E R PER BENCH THIS BUNCH OF EIGHT APPEALS IS BY THE REVENUE AS WE LL AS BY THE ASSESSEE, AGGRIEVED BY THE IMPUGNED ORDERS A LL DATED 19/06/2012, OF THE LD. FIRST APPELLATE AUTHORITY, M UMBAI. 2. FIRST, WE SHALL TAKE UP THE APPEALS OF THE REVE NUE FOR ASSESSMENT YEARS 2004-05 (ITA NO.5413/MUM/2012) , 2005-06 (ITA NO.5414/MUM/2012), 2006-07 (ITA NO.5415/MUM/ 2012), 2007-08 (ITA NO.5416/MUM/2012), 2008-09 (ITA NO.5417/MUM/2012) AND 2009-10 (ITA NO.5418/MUM/2012), WHEREIN, AT THE OUTSET, IT WAS P OINTED OUT BY THE LD. COUNSEL FOR THE ASSESSEE THAT IN THE RESPECTIVE APPEAL, THE TAX EFFECT INVOLVED IS BELOW PRESCRIBED MONETARY / REVENUE BY N.P.SINGH CIT-DR !'# $ / ASSESSEE BY AJITY SHETTY 3 LIMIT. THIS FACTUAL MATRIX WAS CONSENTED TO BE CORR ECT BY THE LD. DR. 2.1. IN VIEW OF THE FACT, THAT THE TAX EFFECT IN THE RESPECTIVE APPEAL IS BELOW PRESCRIBED MONETARY LIMI T, AS CONTAINED IN CBDT INSTRUCTION NO.21 OF 2015, DATED 10/12/2015 (F NO.279/MISC./142/2007-IT(PT), APPLICA BLE WITH RETROSPECTIVE EFFECT, WHEREIN, THE DEPARTMENT WAS ADVISED/DIRECTED BY THE BOARD NOT TO FILE APPEAL I N THE CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE FOLLOWING MONETARY LIMIT.:- SL. NO. APPEALS IN INCOME TAX MATTERS MONETARY LIMIT (IN RS.) 1. BEFORE ITAT 10,00,000/ - 2. U/S 260 A BEFORE HONBLE HIGH COURT 20,00,000/ - 3. BEFORE HONBLE SUPREME COURT 25,00,000/ - AS PER THE AFORESAID INSTRUCTION/REVISED MONETARY L IMIT, THE DEPARTMENT IS NOT TO FILE APPEAL BEFORE THE TRI BUNAL, WHEREIN, THE TAX EFFECT IS LESS THAN RS.10,00,000/- , CONSEQUENTLY, THE APPEALS OF THE REVENUE ARE NOT MAINTAINABLE. THEREFORE, IN VIEW OF UNCONTROVERTED CONTENTION OF THE LD. DR AND THE AFOREMENTIONED CIRCULAR NO. 2 1 OF 2015, DATED 10/12/2015 (F NO.279/MISC./142/2007-IT(PT), O F CBDT, THE APPEALS OF THE REVENUE ARE DISMISSED AS N OT MAINTAINABLE. FINALLY, THE AFOREMENTIONED APPEALS OF THE REVENUE ARE DISMISSED AS NOT MAINTAINABLE. 4 3. NOW, WE SHALL TAKE UP THE CROSS APPEALS FOR A.Y . 2010-11 (ITA NOS. 5419/MUM/2012 AND 5793/MUM/2012). IN THE APPEAL OF THE REVENUE, THE GROUND RAISED PER TAINS TO HOLDING ANNUAL LETTING VALUE (ALV) OF THE PROPERTIE S, OWNED BY THE ASSESSEE AND NOT LET OUT DURING THE YEAR WHETHE R MUNICIPAL VALUATION IS TO BE TAKEN OR AS PER SECTIO N 23 OF THE ACT. 3.1. DURING HEARING, THE CRUX OF ARGUMENTS ADVANCE D BY LD. DR, IS IN SUPPORT TO THE ASSESSMENT ORDER, WHER EAS, THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT IDENTICAL I SSUE WAS ADJUDICATED BY THE TRIBUNAL IN THE CASE OF THE FATH ER OF THE ASSESSEE, DCIT VS SHRI JAGDISH M. GUPTA (ITA NO.497 4 TO 4980/MUM/2012), WHEREIN, THE MATTER WAS SET ASIDE T O THE FILE OF THE ASSESSING OFFICER. THIS FACTUAL MATRIX WAS CONSENTED TO BE CORRECT BY THE LD. DR. 3.2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW O F THE ABOVE, WE ARE REPRODUCING HEREUNDER THE RELEVANT PORTION F ROM THE AFORESAID ORDER FOR READY REFERENCE:- THESE 7 APPEALS BY THE REVENUE AND 3 APPEALS BY TH E ASSESSEE ARE AGAINST THE ORDERS OF THE LD. CIT(A)-41, MUMBAI DT. 28.5.2012 P ERTAINING TO A.YRS.2004-05 TO 2010-11. SINCE THESE APPEALS WERE HEARD TOGETHER , THEY ARE DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVIT Y. 2. THE COMMON GRIEVANCE OF THE REVENUE IN ALL THE A PPEALS READ AS UNDER: WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LD. CIT(A) IS JUSTIFIED IN HOLDING ANNUAL LETTING VALUE OF PROPERTIES OWNED BY THE ASSESSEE CANNOT BE TAKEN INTO ACCOUNT FOR COMPUTING INCOME FROM HOUSE PROPERTY AS THESE PROPERTY WAS NOT LET OUT DURING T HE YEAR UNDER CONSIDERATION, WHEN THESE PROPERTIES WERE NOT LET OUT VOLUNTARILY. 5 3. FOR OUR CONVENIENCE, WE ARE TAKING THE FACTS OF A.Y. 2004-05. DURING THE COURSE OF THE SCRUTINY ASSESSMENT PROCEEDINGS FOR T HE IMPUGNED ASSESSMENT YEARS, THE ASSESSING OFFICER NOTICED THAT THOUGH TH E ASSESSEE HAS SHOWN PROPERTIES BUT HAS NOT OFFERED ANNUAL VALUE OF SUCH PROPERTIES U/S. 23 OF THE ACT. THE PROPERTIES IN QUESTION ARE BUNGALOW AT NASIK, F LAT NO. 602 & 603 OF MARIGOLD, GOPAL GARAGE, SHOP AT BANGUR NAGAR, SHOP NO. 101 (LINK ROAD, MALAD) AND FLAT AT JAL PADMA. THE ASSESSEE WAS ASKE D TO JUSTIFY WHY ANNUAL VALUE OF PROPERTIES OTHER THAN SOP SHOULD NOT BE CO MPUTED IN ACCORDANCE WITH THE PROVISIONS OF SEC. 23 OF THE ACT. 3.1. THE ASSESSEE SIMPLY STATED THAT SINCE THE FLAT S WERE NOT LET OUT ITS ANNUAL VALUE SHOULD BE TAKEN AS RS. NIL. THIS SUBMISSION O F THE ASSESSEE WAS REJECTED BY THE AO WHO WAS OF THE FIRM BELIEF THAT UNDER THE PR OVISIONS OF THE ACT, A METHODOLOGY OF COMPUTATION OF ANNUAL VALUE HAS BEEN PRESCRIBED ACCORDINGLY A NOTIONAL MARKET RENT, WHEN THE PROPERTY IS NOT ACTU ALLY LET OUT HAS TO BE TAKEN AS THE ANNUAL VALUE WITHIN THE MEANING OF PROVISIONS O F SEC. 23(1)(A) OF THE ACT. THE AO PROCEEDED BY TAKING 8% OF COST OF THE PROPER TY AND AVERAGE ANNUAL INCREASE IN RENTAL VALUE@ 10% PER ANNUM AND COMPUTE D THE ANNUAL RENT FOR A.Y. 2004-05 AT RS. 45,50,786/-. 4. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. C IT(A) AND REITERATED ITS CLAIM THAT THE PROPERTY WERE VACANT THROUGHOUT THE YEAR A ND THEREFORE NO ANNUAL LET OUT VALUE SHOULD BE TAXED. AFTER CONSIDERING THE FA CTS AND THE SUBMISSIONS OF THE ASSESSEE, THE LD. CIT(A) PROCEEDED BY CONSIDERING V ARIOUS JUDICIAL DECISIONS DISCUSSED BY HIM IN HIS APPELLATE ORDER AND FINALLY CONCLUDED THAT NOTIONAL INCOME CANNOT BE TAXED BECAUSE THE PROPERTIES WERE NOT LET OUT DURING THE YEAR UNDER CONSIDERATION. 5. AGGRIEVED BY THIS, REVENUE IS BEFORE US. 6. THE LD. DEPARTMENTAL REPRESENTATIVE STRONGLY CON TENDED THAT THE LD. CIT(A) HAS PROCEEDED ON WRONG UNDERSTANDING OF THE PROVISI ONS OF SEC. 23 THEREFORE THE ORDER OF THE LD. CIT(A) IS ERRONEOUS. 7. THE LD. COUNSEL FOR THE ASSESSEE REITERATED WHAT HAS BEEN SUBMITTED BEFORE THE LOWER AUTHORITIES. 8. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTHORITIES BELOW. IT IS NOT IN DISPUTE THAT THE PROPERTIES OF THE ASSESSEE WERE LYING VACANT. IT 6 IS ALSO AN ADMITTED FACT THAT THE ASSESSEE HAS SHOW N NIL ANNUAL LET OUT VALUE FROM THESE PROPERTIES. THE ASSESSEE OUGHT TO HAVE S HOWN ANNUAL LET OUT VALUE FROM THESE PROPERTIES AND OFFERED THE SAME FOR TAXA TION. WE FIND THAT THE LD. CIT(A) HAS CONSIDERED THE JUDICIAL DECISIONS IN THE WRONG PERCEPTIVE OF THE FACTS. ALL THE DECISIONS CONSIDERED BY THE LD. CIT(A) RELA TE TO CHARGING OF NOTIONAL INTEREST ON INTEREST FREE DEPOSITS. THIS ISSUE IS N OT AT ALL PRESENT IN THE CASE OF THE ASSESSEE. UNDOUBTEDLY, THE FINDINGS OF THE LD. CIT( A) ARE ERRONEOUS. SINCE THE ASSESSEE HAS NOT DISCLOSED ANNUAL LET OUT VALUE OF THE PROPERTIES, THE ALV NEEDS TO BE RECOMPUTED BECAUSE THE BASIS TAKEN BY THE AO FOR COMPUTING THE ALV IS ALSO ERRONEOUS. WE, THEREFORE, RESTORE THIS ISSUE T O THE FILES OF THE AO TO BE DECIDED AFRES . THE ASSESSEE IS DIRECTED TO SUBMIT THE MUNICIPAL RATEABLE VALUE OF ALL THE PROPERTIES. THE AO IS DIRECTED TO CONSIDER THE MUNICIPAL RATEABLE VALUE OF THE PROPERTIES AND DECIDE THE ISSUE AS PER THE PROV ISIONS OF LAW. THIS GRIEVANCE OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSE. WE NOTE THAT WHILE DELIBERATING UPON THE IDENTICAL ISSUE IN THE CASE OF CLOSE RELATIVE, SINCE THE ASSESSEE H AS NOT DISCLOSED THE ANNUAL LETTING VALUE OF THE PROPERTIE S, THE ALV NEEDS TO BE RECOMPUTED, BECAUSE THE BASIS TAKEN BY THE ASSESSING OFFICER FOR COMPUTING THE ALV IS ALSO ERR ONEOUS, THUS, THE ASSESSEE WAS DIRECTED TO SUBMIT THE MUNIC IPAL RATEABLE VALUE OF THE PROPERTIES IN QUESTION. THE RATEABLE VALUE, ONE MAY ADD, IS NOT BINDING ON THE ASSESSING OFFICER, AND IT ALL DEPENDS ON THE FACTS OF THE CASE, INCLUD ING IF THE MUNICIPAL VALUE IS EXTANT (REFER: CIT VS MONI KUMAR SUBBA (2001) 333 ITR 38 (DEL.)(FB)). ON THE SAME REASONIN G, THE LD. ASSESSING OFFICER IS DIRECTED TO CONSIDER THE MUNIC IPAL RATEABLE VALUE OF THE PROPERTY AND DECIDE AS PER THE PROVISI ON OF THE LAW. THUS, THIS GROUND OF THE ASSESSEE IS ALLOWED F OR STATISTICAL PURPOSES. 4. NEXT GROUND PERTAINS TO DELETING THE ADDITION O F RS.30,66,547/- MADE U/S 2(22)(E) OF THE ACT HOLDING THAT NO ACCUMULATIVE PROFIT IS AVAILABLE TO THE COMPANY TO BE CONSIDERED IN THE HANDS OF SHRI NALIN GUPTA (PRESEN T ASSESSEE) 7 AS THE SAME HAS ALREADY BEEN CONSIDERED IN THE HAND S OF HIS FATHER, SHRI JAGDISH KUMAR GUPTA. 4.1. DURING HEARING, IT WAS BROUGHT TO OUR NOTICE THAT THIS ISSUE WAS ALSO SENT TO THE FILE OF THE LD. ASS ESSING OFFICER BY THE TRIBUNAL. BOTH THE LD. REPRESENTATIVE CONSEN TED THAT ON IDENTICAL LINES, THIS ISSUE MAY ALSO BE SENT BACK. CONSIDERING THE FACTUAL MATRIX AND THE CONTENTION FROM BOTH SID ES, ON THE SAME REASONING, THIS ISSUE IS ALSO SENT TO THE FILE OF THE LD. ASSESSING OFFICER FOR FRESH ADJUDICATION. 5. THE NEXT GROUND PERTAINS TO DELETING THE ADDITI ON OF RS.8,40,000/- MADE U/S 69C OF THE ACT ON ACCOUNT OF UNEXPLAINED JEWELLERY. THE CRUX OF ARGUMENT ADVANCE D BY THE LD. DR IS IN SUPPORT TO THE ADDITION, WHEREAS, THE LD. COUNSEL FOR THE ASSESSEE DEFENDED THE CONCLUSION ARRIVED AT IN THE IMPUGNED ORDER BY CONTENDING THAT THE ADDITION WAS MERELY MADE ON THE BASIS OF STATEMENT OF ONE SHRI KAMAL GU PTA. 5.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE A LSO PERUSED THE STATEMENT TENDERED BY SHRI KAMAL GUPTA RECORDED ON 26/08/2009. THE ISSUE HAS BEEN DISCUSSED BY THE LD. ASSESSING OFFICER AT PAGE 22 OF THE ASSESSMENT ORDE R. DURING THE COURSE OF SEARCH AT THE RESIDENTIAL PREMISES AN D LOCKERS, VARIOUS ITEMS OF JEWELLERY WERE FOUND. STATEMENT OF SHRI KAMAL GUPTA WAS RECORDED, ON OATH, U/S 132(4) OF THE ACT ON 07/09/2009. AS PER THE ASSESSING OFFICER, THE ASSE SSEE COULD NOT RECONCILED AND EXPLAINED THE EXCESS GOLD JEWELL ERY BEING 2530.97 GMS. THE ASSESSEE REPLIED TO THE SHOW CAUSE NOTICE 8 BUT THE SAME WAS NOT ACCEPTED ON THE PLEA THAT SHRI KAMAL GUPTA HAS ADMITTED UNEXPLAINED INVESTMENT IN THE JE WELLERY WORTH RS.42 LAKH. THE FAMILY BREAKUP WAS ALSO GIVEN BUT THE ASSESSING OFFICER ADDED THE AMOUNT OF RS.8,40,000/- ON SUBSTANTIVE BASIS IN THE HANDS OF THE ASSESSEE AND PROPORTIONATELY ON PROTECTIVE BASIS IN THE HANDS OF FAMILY MEMBERS. 5.2. ON APPEAL, BEFORE THE LD. COMMISSIONER OF INC OME TAX (APPEALS), THE FACTUAL MATRIX WAS CONSIDERED AL ONG WITH COMPLETE CHART OF JEWELLERY, ITEM-WISE/VALUE-WISE. THE JEWELLERY WAS DECLARED UNDER VDIS AND IT WAS DULY R ECONCILED. THE ADDITION WAS DELETED. THE REVENUE IS IN APPEAL BEFORE THIS TRIBUNAL. 5.3. IF THE OBSERVATION MADE IN THE ASSESSMENT ORD ER, LEADING TO ADDITION MADE TO THE TOTAL INCOME, CONCL USION DRAWN IN THE IMPUGNED ORDER, MATERIAL AVAILABLE ON RECORD, ASSERTIONS MADE BY THE LD. RESPECTIVE COUNSEL, IF K EPT IN JUXTAPOSITION AND ANALYZED, UNCONTROVERTEDLY, THE J EWELLERY WAS RECONCILED AND THE ADDITION WAS MERELY MADE ON THE BASIS OF STATEMENT EXTRACTED FROM SHRI KAMAL GUPTA. WE AR E IN AGREEMENT THAT STATEMENT ON OATH IS HAVING A PERSUA SIVE VALUE BUT THE SAME HAS TO BE LINKED TO THE ACTUAL JEWELLE RY AND IF NOT RECONCILED THEN ADDITION HAS TO BE MADE. HOWEVER, I N THE PRESENT APPEAL, THE JEWELLERY WAS DULY RECONCILED, THEREFORE, THE ADDITION MADE ON THE BASIS OF STATEMENT ONLY CA NNOT SURVIVE, THUS, WE AFFIRM THE CONCLUSION ARRIVED AT IN THE IMPUGNED ORDER ON THE ISSUE IN HAND, CONSEQUENTLY, T HE 9 APPEAL OF THE REVENUE IS PARTLY ALLOWED FOR STATIST ICAL PURPOSES. 6. NOW, WE SHALL TAKE UP APPEAL OF THE ASSESSEE (I TA NO.5793/MUM/2012), WHEREIN, ONLY GROUND UPHOLDING T HE ADDITION OF RS.70 LAKH AS UNDISCLOSED INCOME, BEING CASH FOUND AND SEIZED HAS BEEN CHALLENGED. THE CRUX OF A RGUMENT ADVANCED ON BEHALF OF THE ASSESSEE IS THAT THE SAME CASH HAS BEEN ADDED PROPORTIONATELY WHICH HAS ALREADY BEEN A CCOUNTED FOR IN THE CASE OF FIRM, BY INVITING OUR ATTENTION TO THE ORDER OF THE TRIBUNAL, IN THE CASE OF FATHER, WHEREIN, THE I SSUE WAS RESTORED TO THE FILE OF ASSESSING OFFICER FOR EXAMI NATION. THE LD. DR ALSO HAD NO OBJECTION, IF THE MATTER IS IDENTICA LLY SENT TO THE FILE OF THE ASSESSING OFFICER. 6.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW OF THE ABOVE, WE ARE REPRODUCING HEREUNDER THE RELEVANT PORTION F ROM THE ORDER OF THE TRIBUNAL FOR READY REFERENCE. 40. GROUND NO. 2 RELATES TO THE ADDITION OF RS. 80 LAKHS AS UNDISCLOSED INCOME. 40.1. THIS ISSUE HAS BEEN CONSIDERED BY THE AO AT PARA-7 ON PAGE-6 OF HIS ORDER. THE AO OBSERVED THAT DURING THE COURS E OF SEARCH AND SEIZURE OPERATION, CASH OF RS. 2.44 CRORES WAS FOUND. THE A O FURTHER OBSERVED THAT WHEN IT WAS CONFRONTED TO THE ASSESSEE, THE ASSESSE E OFFERED RS. 2.20 CRORES FOR TAX IN HIS HANDS AND IN THE HANDS OF HIS TWO SO NS. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE ASSESSEE CLAIMED THAT T HE SOURCE OF THE CASH FOUND AT THE TIME OF SEARCH IS BOGUS PURCHASE BILLS ADMITTED IN ITS CASE AND BOGUS BILLS DEBITED IN JKILS CASE. THIS EXPLANATIO N OF THE ASSESSEE DID NOT FIND FAVOUR FROM THE AO AND DECLINED TO GIVE RELIEF OF RS. 80 LAKHS. 41. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A). BEFORE THE LD. CIT(A), IT WAS CONTENDED THAT THE ASSESSEE HAS DISC LOSED A SUM OF RS. 10 2,81,17,112/- BEING ACCOMMODATION PURCHASE BILL IN HIS PROPRIETORSHIP FIRM M/S. J. KUMAR & CO. AND GOLDLINE ADVERTISER. THE CA SH SO FOUND WAS OUT OF THIS BOGUS PURCHASES BOOKED IN THE BOOKS OF ACCOUNT . IT WAS FURTHER EXPLAINED THAT BECAUSE OF VOLUMINOUS TRANSACTIONS IN THE SEIZ ED PAPER AND THE COMPLEXITIES INVOLVED THEREIN, THE ASSESSEE HAS WRO NGLY ADDED RS. 80,00,000/- IN ITS RETURN OF INCOME. THE LD. CIT(A) DID NOT ACC EPT THIS CONTENTION OF THE ASSESSEE HOLDING THAT THE ASSESSEE SHOULD HAVE REVI SED THE RETURN OF INCOME FILED BY HIM IN THE LIGHT OF THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF GOETZ (INDIA) LTD. VS CIT 284 ITR 32 3. THE LD. CIT(A) CONFIRMED THE ASSESSMENT ORDER. 42. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE REI TERATED WHAT HAS BEEN SUBMITTED BEFORE THE LOWER AUTHORITIES. IT IS THE S AY OF THE LD. COUNSEL THAT THE FUNDAMENTAL PRINCIPLE OF TAXATION REQUIRED THE AO T O COMPUTE THE REAL INCOME AND NOT TO TAKE BENEFIT OF ASSESSEES IGNORANCE OR MISTAKE. THE LD. COUNSEL FURTHER STATED THAT ONCE THE DEPARTMENT HAS ACCEPTE D THAT THE ASSESSEE WAS ENGAGED IN BOOKING BOGUS PURCHASE BILLS IN HIS BOOK S OF ACCOUNT, THEN THE DEPARTMENT SHOULD HAVE ACCEPTED CASH IN HAND WHICH WAS GENERATED OUT OF THE BOGUS PURCHASES BOOKED. 43. THE LD. DR STRONGLY SUPPORTED THE FINDINGS OF T HE LOWER AUTHORITIES. 44. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUT HORITIES BELOW. IT IS NOT IN DISPUTE THAT NOT ONLY IN ASSESSEES CASE BUT ALSO I N THE CASES OF GROUP, THERE HAS BEEN BOGUS PURCHASE BILLS FOUND BOOKED IN THE B OOKS. IT IS ALSO NOT IN DISPUTE THAT THE ASSESSEE WAS RECEIVING MONIES OUT OF THE BOGUS PURCHASE BILLS. THIS PLEA OF THE ASSESSEE CANNOT BE BRUSHED OUT LIGHTLY ON THE FACTS OF THE CASE AND ALSO ON THE FACTS OF OTHER CASES OF TH E GROUP. ONCE IT IS ADMITTED THAT THE ASSESSEE WAS INDULGED IN BOOKING BOGUS PUR CHASES THEN THE GENERATION OF CASH OUT OF SUCH BOGUS PURCHASE BILLS CANNOT BE REJECTED SO LIGHTLY. WE, THEREFORE, RESTORE THIS ISSUE TO THE F ILE OF THE AO. THE ASSESSEE IS DIRECTED TO SUBSTANTIATE HIS CLAIM BY PRODUCING COG ENT MATERIAL EVIDENCE SHOWING HOW BOGUS PURCHASES WERE BOOKED AND WHEN TH E AMOUNT WAS RECEIVED BACK. THE AO IS DIRECTED TO VERIFY SUCH DE TAILS FILED BY THE ASSESSEE AND DECIDE THIS ISSUE AFRESH IN THE LIGHT OF THE EX PLANATION FURNISHED BY THE 11 ASSESSEE AFTER GIVING REASONABLE OPPORTUNITY OF BEI NG HEARD. THIS GROUND OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. IN VIEW OF THE SUBMISSIONS FROM BOTH SIDES AND THE CONCLUSION ARRIVED AT IN THE ORDER OF THE TRIBUNAL, SINCE THE ISSUE IS IDENTICAL, ON THE SAME REASONING/DIRECTION , WE RESTORE THIS ISSUE TO THE FILE OF THE LD. ASSESSING OFFICER , THUS, THE LD. ASSESSING OFFICER IS DIRECTED TO VERIFY THE DETAILS FILED BY THE ASSESSEE AND DECIDE AFRESH IN THE LIGHT OF THE EXPL ANATION FURNISHED BY THE ASSESSEE IN ACCORDANCE WITH LAW. T HE ASSESSEE BE GIVEN OPPORTUNITY. THIS GROUND IS ALLOW ED FOR STATISTICAL PURPOSES. FINALLY, (A) THE APPEALS OF THE REVENUE FOR ASSESSMENT YEARS 200 4- 05 TO 2009-10 ARE DISMISSED BEING THE LOW TAX EFFEC T. (B) APPEAL OF THE REVENUE FOR ASSESSMENT YEAR 2010-11 I S PARTLY ALLOWED FOR STATISTICAL PURPOSES. (C) THE CROSS APPEAL OF THE ASSESSEE FOR ASSESSMENT YEA R 2010-11 IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVE FROM BOTH SIDES AT T HE CONCLUSION OF THE HEARING ON 17/02/2016. SD/- SD/- ( SANJAY ARORA ) (JOGINDER SINGH) ! ' / ACCOUNTANT MEMBER # ' /JUDICIAL MEMBER % & MUMBAI; ) DATED : 22/02/2016 F{X~{T? P.S/. . . $#%&'(')% / COPY OF THE ORDER FORWARDED TO : 12 1. +,- / THE APPELLANT 2. ./,- / THE RESPONDENT. 3. 0 0 % 1$ ( + ) / THE CIT, MUMBAI. 4. 0 0 % 1$ / CIT(A)- , MUMBAI 5. 34 .$ ! , 0 +( ! 5 , % & / DR, ITAT, MUMBAI 6. ' 7& / GUARD FILE. / BY ORDER, /3+$ .$ //TRUE COPY// / (DY./ASSTT. REGISTRAR) , % & / ITAT, MUMBAI