ABDUL HAMID HAK SHAIKH, NAVI MUMBAI V. ACIT 25(3), MUMBAI

ITA 5565/MUM/2009

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8886 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 18-12-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 12-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A
• Assessee Lawyers: MAHESH D RAJARA
• Keywords: Additional evidence; Bad and doubtful debts
• Section: 263

Judgement Text

PAGE 1 OF 10 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D, MUMBAI BEFORE SHRI G. E. VEERABHADRAPPA, HON'BLE PRESIDENT , & SHRI VIVEK VARMA, JUDICIAL MEMBER I.T.A. NO. 5565/MUM/2009 ASSESSMENT YEARS : 2003-04 SHRI ABDUL HAMID HAK SAIKH 703-2A, GREEN HILLS, LOKHANDWALA COMPLEX, KANDIVALI (EAST), MUMBAI-400 101 PAN NO: ABEPS 5727 K VS. ACIT-25(3), PRATYAKSHAKAR BHAVAN, BANDRA-KURLA COMPLEX, MUMBAI-400 051 (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VIJAY MEHTA & SHRI MAHESH D. RAJARA RESPONDENT BY : SHRI R. A. PANT DATE OF HEARING: 06.08.2012 DATE OF PRONOUNCEMENT: 05.09.2012 O R D E R PER VIVEK VARMA, J.M. : THE APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORD ER OF CIT(A)-XXVI, MUMBAI, DATED 22.07.2009. 2. GROUND NOS. 1 (A) AND (B) READS AS UNDER : 1.A) THE COMMISSIONER OF INCOME TAX (APPEALS)-XXVI , MUMBAI [HEREIN AFTER REFERRED TO AS CIT(A) ERRED IN CONFIRMING THE DISAL LOWANCE OF CLAIM FOR BAD DEBTS OF RS . 16,75,800/- ON THE GROUND THAT THE APPELLANT HAS PR EMATURELY CLAIMED THIS AMOUNT AS BAD DEBT DURING THE YEAR UNDER CONSI DERATION. THE APPELLANT SUBMITS THAT THE SAID AMOUNT WAS WRIT TEN OFF BY THE APPELLANT IN HIS BOOKS OF ACCOUNTS AND HENCE THE SAME SHALL BE A LLOWED AS BAD DEBT. SHRI ABDUL HAMID HAK SHAIKH I.T.A. NO. 5565/MUM/2009 PAGE 2 OF 10 B) IN THE ALTERNATIVE AND WITHOUT PREJUDICE TO THE ABOVE GROUND IN APPEAL, THE A.O. SHALL BE DIRECTED TO ALLOW THE CLAIM FOR B AD DEBTS OF RS . 16,75,800/- IN ASSESSMENT YEAR 2004-05. 3. GROUND NO. 1(A) PERTAINS TO THE DISALLOWANCE OF CLAIM OF BAD DEBT OF RS . 16,75,800. THE FACTS ARE THAT THE ASSESSEE IS BULL ION TRADER WHO SOLD SOME GOLD BARS TO M/S KANJI MANJI KOTHARI & CO. ON 28.03.2003 , AGAINST WHICH THE BUYER ISSUED A CHEQUE OF RS . 16,75,800 DATED 18.04.2003 AS CONSIDERATION. THIS CHEQUE WAS RETURNED UNPAID AND THE AMOUNT OF SALE P ROCEEDS COULD NOT BE RECOVERED BY THE ASSESSEE. THE ASSESSEE, AFTER RECE IPT OF DEFINITE INFORMATION OF THE RETURN OF THE CHEQUE FROM THE BANK ON 03.06.200 3 WROTE OFF THE AMOUNT AS NOT RECOVERABLE, AS BAD DEBTS. THE DECISION TO TREA T THE IMPUGNED AMOUNT AS BAD, WAS TAKEN AFTER THE CLOSURE OF ITS BOOKS BUT B EFORE THE COMPLETION OF AUDIT AND FILING OF RETURN. 4. THE AO, AFTER CONSIDERING THE REPLY OF THE ASSES SEE, HELD THAT THE EARLIEST, THE AMOUNT TO HAVE BECOME BAD, COULD ONLY BE ON 18.04.2003, WHEN THE BUYER ISSUED THE CHEQUE IN FAVOUR OF THE ASSESS EE. ACCORDING TO THE AO, THIS EVENT WOULD FALL IN THE ASSESSMENT YEAR 2004-05 AND NOT IN THE CURRENT YEAR I.E. ASSESSMENT YEAR 2003-04. THUS, THE AO, DISALLOWED T HE CLAIM OF THE ASSESSEE. THE CIT(A) TOO, SUSTAINED THE OBSERVATION OF THE AO . THE CIT(A) RELIED ON THE DECISION OF DIT (IT) V/S OMAN INTERNATIONAL BANK, R EPORTED IN 313 ITR 128 (BOM), WHEREIN, THE HON'BLE HIGH COURT HELD, ..AS LONG AS IT WAS BONAFIDE AND BASED ON COMMERCIAL WISDOM AND EXPEDIENCY . ACCORDING TO THE CIT(A), THE ASSESSEE DID NOT MAKE ANY EFFORTS TO SHOW EITHER TH E BONAFIDES OR THE SHRI ABDUL HAMID HAK SHAIKH I.T.A. NO. 5565/MUM/2009 PAGE 3 OF 10 COMMERCIAL WISDOM AND EXPEDIENCY. THE CIT(A) THUS R EJECTED THE CONTENTIONS OF THE ASSESSEE, WHO IS NOW BEFORE THE ITAT. 5. BEFORE US, THE AR, REITERATED THE ENTIRE FACTS, THAT WERE SUBMITTED BEFORE THE REVENUE AUTHORITY AND BASED ON THE FACTS, RELIE D ON THE FOLLOWING DECISIONS : I) DI(IT) V/S. OMAN INTERNATIONAL BANK, 313 ITR 128 (B OM). II) TURNER MORRISON AND CO. LTD. VS CIT, 245 ITR 724 (C AL). III) U.P.R.N.N LTD. V/S ITO, ITA NO.149 (LUCK) OF 2008, 24 SOT 139 (LUCK). AND SUBMITTED THAT THE CLAIM OF THE BAD DEBT HAD TO BE MADE IN PREVIOUS YEAR AND THE FACT THAT IT WAS CLAIMED WELL BEFORE THE AC COUNTS GOT AUDITED GOES TO PROVE THAT THE DEBT HAD BECOME IRRECOVERABLE AND TH E DECISION TO WRITE IT OFF WAS MADE WELL WITHIN TIME. 6. THE DR, ON THE OTHER HAND, RELIED UPON THE ORDER OF THE REVENUE AUTHORITY. 7. WE HAVE HEARD THE ARGUMENTS OF THE AR AND THE DR AND HAVE ALSO PERUSED THE MATERIAL BROUGHT ON RECORD, FROM WHICH WE FIND THAT NO DOUBT THAT THE TRANSACTION CULMINATED JUST THESE DAYS BEFORE T HE CLOSE OF THE YEAR, BUT THE UNDISPUTED FACT THAT THE CHEQUE FROM THE BUYER WAS RETURNED DUE TO INSUFFICIENT FUNDS PATENTLY GO TO PROVE THAT THE DEBT HAD BECOME BAD AT THE THRESH HOLD. EVEN THE RELEVANT PROVISION, I.E. SECTION 36(1)(VII ) TALKS OF ANY BAD DEBT . IN THE INSTANT CASE, NON CLEARANCE OF THE CHEQUE MEANS THE DEBT BECOMING BAD. BESIDES THAT, THE AR INFORMED THAT THE ASSESSEE HAD TAKEN LEGAL ACTION. SHRI ABDUL HAMID HAK SHAIKH I.T.A. NO. 5565/MUM/2009 PAGE 4 OF 10 8. WE HAVE GONE THROUGH THE VARIOUS DECISIONS WHICH WERE RELIED UPON BY THE AR. IN THE CASE OF DI(IT) V/S OMAN INTERNATION AL BANK, REPORTED IN 313 ITR 128 (BOM), HON'BLE BOMBAY HIGH COURT HOLDS AS UNDER : WHEN THE ASSESSEE TREATS A DEBT AS A BAD DEBT IN H IS BOOKS, THE DECISION HAS TO BE A BUSINESS OR COMMERCIAL DECISION AND NOT WHI MSICAL OR FANCIFUL. THE DECISION MUST BE BASED ON MATERIAL THAT THE DEBTS I S NOT RECOVERABLE. THE DECISION MUST BE BONA FIDE. THE DIFFERENCE BETWEEN THE PROVISION AS EXISTING BEFORE AND AFTER THE AMENDMENT OF SECTION 36(1)(VII ) OF THE INCOME-TAX ACT, 1961, WITH EFFECT FROM APRIL 1, 1989, WOULD BE THAT THE BURDEN IS NO LONGER ON THE ASSESSEE TO PROVE THAT THE DEBT HAS GONE BAD AN D THE DEDUCTION CAN BE CLAIMED IN THE YEAR IT IS WRITTEN OFF IN THE BOOKS OF ACCOUNT AS IRRECOVERABLE. THE ASSESSING OFFICER IF HE IS TO DISALLOW THE DEBT AS A BAD DEBT MUST ARRIVE AT A CONCLUSION THAT THE DECISION WAS NOT BONA FIDE. THE ASSESSING OFFICER ONLY IN THOSE CIRCUMSTANCES AND TO THAT EXTENT MAY INTERFER E. ALL THAT THE ASSESSEE MUST DO IS TO BE PRIMA FACIE SATISFIED, BASED ON TH E INFORMATION AVAILABLE THAT THE DEBT IS BAD AND THAT WOULD BE SUFFICIENT REQUIR EMENT OF AMENDED PROVISION. 9. THE AR ALSO PLACED RELIANCE ON THE DECISION OF H ON'BLE CALCUTTA HIGH COURT IN THE CASE OF TURNER MORRISON AND CO. LTD. V S CIT REPORTED IN 245 ITR 724, WHEREIN THE HON'BLE CALCUTTA HIGH COURT HELD, THAT IT WAS IMMATERIAL WHETHER THE BAD DEBT WAS SH OWN AFTER THE CLOSE OF THE ACCOUNTING YEAR OR DURING THE ACCOUNTING YEAR ITSEL F. BAD DEBT WAS ALLOWABLE AS A DEDUCTION IN COMPUTING THE INCOME EVEN IF THE BAD DEBT CAME INTO EXISTENCE BECAUSE OF THE EXPENDITURE INCURRED FOR ADVANCING M ONEY TO A SUBSIDIARY COMPANY OF THE ASSESSEE. SINCE, THE ASSESSEE HAD NO CHANCE OF RECOVERING THE AMOUNT IN QUESTION FROM THE SUBSIDIARY, THE AMOUNT COULD BE TREATED AS A BAD DEBT ENTITLED TO DEDUCTION FROM THE INCOME FOR THE RELEVANT YEAR. 10. THE AR FURTHER PLACED RELIANCE ON THE DECISION OF CO-ORDINATE BENCH OF THE ITAT, LUCKNOW, IN THE CASE OF U.P.R.N.N. LTD. V /S ITO, REPORTED IN 24 SOT 139 (LUCK) IN ITA NO.149 (LUCK) OF 2008,, WHEREIN, THE CO-ORDINATE BENCH HELD AS UNDER :- THE CONDITIONS REQUIRED FOR ALLOWING THE CLAIM UND ER SECTION 36(1)(VII) ARE THAT, FIRSTLY, ANY DEBT, OR PART THEREOF, IS WRITTEN-OFF AS IRRECOVERABLE AND SECONDLY, SHRI ABDUL HAMID HAK SHAIKH I.T.A. NO. 5565/MUM/2009 PAGE 5 OF 10 THEY SHOULD BE WRITTEN-OFF IN THE ACCOUNTS OF THE A SSESSEE FOR THE PREVIOUS YEAR. SO FAR AS THE FIRST PART OF CLAUSE (VII) OF SECTION 36(1) IS CONCERNED, THERE IS NO DISPUTE THAT THE DEBT HAS BECOME BAD AND IT IS WRIT TEN-OFF. THE DISPUTE RELATES TO THE INTERPRETATION OF THE WORDS USED SUBSEQUENTL Y. WHEN ONE GOES THROUGH THE SUBSEQUENT PART OF THE CLAUSE, IT IS NOTICED TH AT REQUIREMENT IS TO WRITE-OFF BAD DEBTS IN THE ACCOUNTS OF THE ASSESSEE FOR THE PREVIOUS YEAR. THIS CLAUSE DOES NOT SAY TO WRITE-OFF BAD DEBT IN THE PREVIOUS YEAR. IT WOULD HAVE MADE A VAST DIFFERENCE IF THE WORD IN WOULD HAVE BEEN TH ERE IN PLACE OF FOR . IN THE CLAUSE, THE ACCOUNTS OF THE ASSESSEE ARE QUALIFIE D WITH FURTHER WORDS FOR THE PREVIOUS YEAR. IT ONLY MEANS THAT THE ACCOUNTS IN WHICH THE ACT OF WRITING-OFF IS TO BE DONE BY THE ASSESSEE SHOULD BE FOR THE PREVIO US YEAR. THEREFORE, THE LAW REQUIRES TO WRITE-OFF THE BAD DEBT IN THE ACCOUNTS OF THE ASSESSEE FOR THE RELEVANT YEAR. THERE IS NO CONDITION IN THE PROVISI ON THAT SUCH WRITING-OFF SHOULD BE DONE IN THE RELEVANT PREVIOUS YEAR (I.E. BEFORE THE END OF FINANCIAL YEAR IN THE INSTANT CASE BEFORE 31.03.2004). IN OTHER WORDS , IF THE ACCOUNTS OF THE ASSESSEE ARE OPEN AND SUBJECT TO CORRECTIONS BY THE AUDITORS AS PER THE COMPANIES ACT, 1956, THEN SUCH WRITING-OFF CAN BE D ONE IN THOSE BOOKS. THERE IS ALSO NO CONDITION IN THIS CLAUSE THAT THE DECISI ON FOR TREATING THE DEBT AS BAD OR IRRECOVERABLE SHOULD BE TAKEN IN THE PREVIOUS YE AR ITSELF. IT WILL AMOUNT TO WRITING A NEW LEGISLATION WHICH IS NOT PERMISSIBLE. IN OTHER WORDS, IF IT IS POSSIBLE FOR THE ASSESSEE LEGALLY AND OTHERWISE TO MAKE ENTR IES IN THE BOOKS OF A PARTICULAR PREVIOUS YEAR THEN THE CLAIM OF BAD DEBT CAN BE MADE IN THE BOOKS FOR THAT PREVIOUS YEAR. IN OTHER WORDS, WHERE BOOKS OF ACCOUNT ARE NOT CLOSED AND COMPLETE, HAVE NOT BEEN SIGNED BY THE BOARD OF DIRECTORS AND HAVE NOT BEEN ADOPTED BY THE SHAREHOLDERS AS PER THE COMPANI ES ACT, IT IS LEGALLY PERMISSIBLE TO MAKE ADJUSTMENTS BEFORE THEY ARE FIN ALLY ADOPTED. IN THE INSTANT CASE, EVEN THOUGH THE ASSESSEE HAD FILED RETURN OF INCOME WITH THE DEPARTMENT BUT IT WAS BASED ON UN-AUDITED BOOKS OF ACCOUNT AND THE ACCOUNTS WERE NOT SIGNED BY THE BOARD OF DIRECTORS. THEREFORE, IT WAS OPEN FOR THE ASSESSEE TO WRITE-OFF THE IRRECOVERABLE BAD DEBTS IN SUCH BOOKS OF ACCOUNT. IT IS BECAUSE THERE IS NO CONDITION PROVIDED IN THE ACT THAT DECI SION FOR WRITING-OFF THE BAD DEBTS SHOULD BE TAKEN ONLY IN THE RELEVANT PREVIOUS YEAR OR THAT SUCH WRITING OFF OF THE BAD DEBTS IN THE BOOKS SHOULD BE PHYSICALLY AND ACTUALLY DONE IN THE PREVIOUS YEAR BEFORE 31 ST MARCH EXPIRES AT MIDNIGHT. 11. THE AR SUBMITTED THAT EVEN AS-4, ALLOWS THE ASS ESSEE TO MAKE AMENDMENTS TO ITS ACCOUNTS AFTER THE BALANCE SHEET DATE. 12. THE AR SUBMITTED, ONCE THE NEGOTIABLE INSTRUM ENT, WHICH IS RETURNED UNPAID, WHAT OTHER BONAFIDE CIRCUMSTANCE COULD BE C ITED BY THE ASSESSEE. ONCE THE CHEQUE IS RETURNED UNPAID, IT IS CLEAR THAT THE PAYMENT IS NOT FORTH COMING, THEN WHAT OTHER BUSINESS OR COMMERCIAL DECISION MUS T BE TAKEN, OTHER THEN TO ACCEPT THE FACT THAT THE DEBT HAS BECOME BAD. SHRI ABDUL HAMID HAK SHAIKH I.T.A. NO. 5565/MUM/2009 PAGE 6 OF 10 13. HAVING GONE THROUGH THE CITED CASE LAWS, WE ARE OF THE OPINION, THAT THE FACTS AS NARRATED BY THE AR AND WHICH ARE NOT DISPU TED EITHER BY THE REVENUE AUTHORITIES OR BY THE DR, CLEARLY PUTS THE CASE OF THE ASSESSEE WITHIN THE ACCEPTABLE PARAMETERS FOR ALLOWANCE OF THE DEBT BECOMING BAD . WE ARE ALSO IN AGREEMENT WITH THE ARGUMENT OF THE AR THAT THE CLAI M HAS TO BE MADE FOR THE PREVIOUS YEAR. 14. IN THE CIRCUMSTANCES, WE ALLOW THE DEBT HAVING BECOME BAD ON THE EVENT OF CHEQUE NOT GETTING CLEARED. 15. WE, THEREFORE, SET ASIDE THE ORDER OF THE CIT(A ) ON THIS ISSUE AND DIRECT THE AO TO ALLOW THE CLAIM OF BAD DEBT OF RS . 16,75,800. 16. GROUND NO. 1(B) IS AN ALTERNATE GROUND TO GROUN D NO. 1(A). THIS GROUND HAS NOT BEEN PRESSED BY THE AR, HENCE IT IS DISMISS ED. 17. GROUND NOS. 2 (A), (B) AND (C) READS AS UNDER : 2.(A) THE CIT(A) ERRED IN CONFIRMING ESTIMATED DIS ALLOWANCES OUT OF THE FOLLOWING EXPENSES WITHOUT APPRECIATING THE FACT TH AT THE SAME WERE FULLY ALLOWED BY THE HON'BLE CIT AND WERE OUTSIDE THE PUR VIEW OF VERIFICATION AS DIRECTED BY HON'BLE CIT IN HER ORDER U/S.263 OF THE ACT. EXPENSE HEAD AMOUNT OF DISALLOWANCES I) OUT OF BUSINESS PROMOTION EXPENSES OF RS . 1,96,212/- 1,00,000/- II) OUT OF TRAVELLING EXPENSES OF RS . 7,31,521/- 3,00,000/- III) OUT OF TELEPHONE EXPENSES OF RS . 3,77,790/- AND MOBILE EXPENSES OF RS . 1,31,243 1,17,200/- IV) MISCELLANEOUS EXPENSES 80,000/- 5,97,200/- THE APPELLANT SUBMITS THAT THE ABOVE EXPENSES WERE FULLY ALLOWED AFTER DUE VERIFICATION AND THE HON'BLE CIT HAD DIRECTED TO VE RIFY/EXAMINE THE EXPENSES SHRI ABDUL HAMID HAK SHAIKH I.T.A. NO. 5565/MUM/2009 PAGE 7 OF 10 RELATING TO THE PROPRIETARY CONCERN M/S. UNIVERSAL TRADE CONCEPTS AND NOT THE EXPENSES RELATING TO THE PROPRIETARY CONCERN M/S. U NIVERSAL TRADE CONSULTANT. B) IN THE ALTERNATIVE AND WITHOUT PREJUDICE TO THE ABOVE, THE APPELLANTS SUBMITS THAT IT HAS INCURRED THE ABOVE EXPENDITURE IN THE NORMAL COURSE OF BUSINESS AND HENCE THE DISALLOWANCE CONFIRMED BY TH E C SHALL BE DELETED. C) IN THE ALTERNATIVE AND WITHOUT PREJUDICE TO THE ABOVE, THE DISALLOWANCE CONFIRMED BY THE CIT(A) IS EXCESSIVE AND UNREASONAB LE. 18. GROUND NO. 2(A) WE HAVE GONE THROUGH THE ORDER U/S 263 AND WE FIND THAT THE CIT HAD DIRECTED TO EXAMINE THE EXPENSES RELATING TO UNIVER SAL TRADE CONCEPTS. THE AMOUNTS DISALLOWED BY THE AO AND SUSTAINED BY THE C IT(A) ARE EXPENSES RELATING TO UNIVERSAL TRADE CONSULTANTS. THIS FACT HAS BEEN ACCEPTED BY THE DR AS WELL, THAT THE IMPUGNED EXPENSES ARE OUTSIDE THE JURISDICTION CAST BY THE CIT ON THE AO THROUGH THE ORDER U/S 263. 19. WE, THEREFORE, HAVE NO HESITATION TO DELETE THE DISALLOWANCE, AND THUS, WE SET ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE AO TO DELETE THE IMPUGNED DISALLOWANCE OF EXPENSES AGGREGATING TO RS . 5,97,200. THE GROUND IS ALLOWED. 20. GROUNDS 2 (C) AND (D) HAVE BECOME INFRUCTUOUS A ND, THEREFORE, THEY ARE DISMISSED. 21. GROUND NO. 3 READS AS UNDER : 3. THE CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF THE SERVICE CHARGES OF RS . 48,23,000/- (RS . 53,73,000 RS . 5,50,000) ON THE GROUND THAT NO SPECIFIC SERVICES HAVE BEEN RENDERED BY THE PAYEES TO THE APPELLANT TO JUSTIFY THE PAYMENTS OF SAID SERVICE CHARGES. SHRI ABDUL HAMID HAK SHAIKH I.T.A. NO. 5565/MUM/2009 PAGE 8 OF 10 THE APPELLANT SUBMITS THAT THE SERVICES CHARGES PAI D BY THE APPELLANT ARE FOR RENDERING SERVICES AND THE PARTIES HAVE CONFIRMED H AVING RENDERED SUCH SERVICES AND HENCE THE DISALLOWANCES CONFIRMED BY T HE CIT(A) RELATING TO THE SAID SERVICE CHARGES SHALL BE DELETED. 22. THE DISALLOWANCE IS WITH REGARD TO SERVICE CHAR GES AGGREGATING TO RS. 48,23,000 AS THERE WAS NO SPECIFIC SERVICE THAT HAS BEEN RENDERED BY THE ASSESSEE. DURING THE COURSE OF HEARING, THE AR SUB MITTED THAT COMPLETE BREAK UP OF THE IMPUGNED AMOUNT HAD BEEN PLACED BEFORE TH E REVENUE AUTHORITY (THE CHART HAD BEEN PLACED IN THE APB). AT THE TIME OF HEARING, THE AR PLACED BEFORE US A SUPPLEMENTARY CHART. ACCORDINGLY, THE ARS COM MENTS ON EACH OF THE PARTIES HAVE BEEN SEEN FROM THE PAPERS ALREADY FILE D EARLIER. WE FIND THAT THE IMPUGNED DISALLOWANCE IS OUT OF THE TOTAL OF RS . 68,24,154, OF WHICH THESE AMOUNTS REMAINED PAYABLE AS ON 31.03.2003. WE ALSO FIND THAT THE ASSESSEE HAD PLACED ADDITIONAL EVIDENCE, WHICH WAS REMANDED TO THE AO FOR HIS COMMENTS, AND DURING THE REMAND PROCEEDINGS, THE AS SESSEE WAS ABLE TO FILE CONFIRMATIONS AND AFFIDAVITS OF ITS VENDORS. OF THE ENTIRE DETAIL FILED, WE FIND THAT PARTIES AT SERIAL NOS. 11, 12 & 13 NO DETAIL HAD BE EN FORTHCOMING, AS THE PARTIES WERE NOT TRACEABLE. THEREFORE, THESE ARE TO BE TAKE N AGAINST THE ASSESSEE, BUT PARTY AT SR. NO. 11, I.E. ANANT RASAL, WE FIND, NEI THER THERE WAS A SUMMON NOR THE AO CALLED HIM OTHERWISE, CANNOT BE DOUBTED BY U S AT THIS STAGE, THEREFORE, WE GIVE THIS PARTY OUR BENEFIT OF DOUBT AND TREAT I T AS GENUINE. WE, THEREFORE, DISALLOW A TOTAL OF RS . 4,50,000, I.E. PAYMENTS TO RAKESH PAREKH AT RS . 2,00,000 AND DAKSHESH PAREKH AT RS . 2,50,000 AS DISALLOWABLE. SHRI ABDUL HAMID HAK SHAIKH I.T.A. NO. 5565/MUM/2009 PAGE 9 OF 10 23. IN THE RESULT, WE ALLOW RELIEF OF RS . 43,73,000 (RS . 48,23,000 RS . 4,50,000). 24. WE, THEREFORE, SET ASIDE THE ORDER OF THE CIT(A ) AND DIRECT THE A.O. TO ALLOW RS . 43,73,000. THE GROUND IS, PARTLY ALLOWED. 25. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 05/09/2012. SD/- (G.E. VEERABHADRAPPA) PRESIDENT SD/- (VIVEK VARMA) JUDICIAL MEMBER MUMBAI, DATE: 05/09/2012 ROSHANI COPY TO- 1) APPELLANT 2) RESPONDENT 3) CITA MUMBAI. 4) CIT CITY MUMBAI 5) DR BENCH MUMBAI TRUE COPY BY ORDER DY/ ASST.REGISTRAR,ITAT MUMBAI.