DCIT-4(1)(2), MUMBAI V. M/S.ELDER IT SOLUTIONS PRIVATE LIMITED, MUMBAI

ITA 5686/MUM/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8476 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-04-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2010-2011
• Appeal Filed On: 07-09-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R MANJUNATHA SWAMY
• Keywords: Unexplained cash credit; Opportunity of being heard; Onus to prove
• Section: 68

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA ( A M) & SHRI PAWAN SINGH ( J M) I.T.A. NO. 5686 /MUM/ 2017 (ASSESSMENT YEAR 20 10 - 11 ) DCIT 4(1)(2) ROOM NO. 640 6 TH FLOOR AAYAKAR BHAVAN M.K. ROAD MUMBAI - 400 020. V S . M/S. ELDER IT SOLUTIONS PVT. LTD. HANUMANTA APARTMENT BAMANWADA, NEAR CHAKALA CIGRETTE FACTORY, ANDHERI (E) MUMBAI - 400 099. PAN : AABCE9570B ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY NONE DEPARTMENT BY SHRI R. MANJUNATHA SWAMY DATE OF HEARING 10 . 1 . 201 9 DATE OF PRONOUNCEMENT 2 . 4 . 201 9 O R D E R PER SHAMIM YAHYA (AM) : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A) DATED 29.6.2017 AND PERTAINS TO A.Y. 20 10 - 11 . 2. GROUNDS OF APPEAL READ AS UNDER : 1. ON THE FACTS AND CIRCU MSTANCES OF THE CASE AND IN LAW, LEARNED CIT(A) HAS ERRED IN DIRECTING THE ASSESSING OFFICER TO DELETE THE ADDITION MADE TOWARDS UNEXPLAINED CASH CREDIT OF RS. 219,86,00,000/ - U/S. 68 OF THE I.T. ACT WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAS FAIL ED TO SUBSTANTIATE THE PURPOSE OF THE RECEIVING OF SUCH HUGE ADVANCE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LEARNED CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 219,86,00,000/ - MADE ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S. 68 OF THE IT. ACT RECEIVED BY THE ASSESSEE WHEN THE WORTH OF THE ASSESSEES SHARE AS PER ITS BALANCE SHEET RESULT WAS NEGATIVE. 3 . BRIEF FACTS ARE D URING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS NOTED BY THE ASSESSING OFFICER FROM THE RECORDS THAT 'DETAILS OF CURRENT LIABILITIES' FOR THE M/S. ELDER IT SOLUTIONS PVT. LTD. 2 F.Y. 2009 - 10 RELEVANT TO A.Y. 2010 - 11, THE ASSESSEE COMPANY HAS SHOWN AN AMOUNT OF RS.219.86 CRORES AS 'OTHER LIABILITIES' TOWARDS M/S MERIDIAN CELLULAR SERVICES PVT. LTD., AS AGAINST THE ABOVE LIABILITY, DURING THE A.Y. 2010 - 11, THE ASSESSEE COMPANY HAS ALSO SHOWN; (I) TO HAVE REDEEMED SHARES ISSUED AMOUNTING TO RS. 139.86 CRORES (SHOWN AS 14,00,000 SHARES ISSUED AT A PREMIUM OF RS. 999/ - PER SHARE IN THE A.Y. 2009 - 10) AND (II) REPAYMENT OF UNSECURED LOANS AMOUNTING TO RS. 80 CRORES - (THE ABOVE PAYMENTS ALSO TOTALING TO RS. 219.86 CRORES). 4. AFTER ISSUING NOTICE TO THE ASSESSEE AND CONSIDERING THE ASSESSEES REPLY THE ASSESSING OFFICER CONCLUDED AS UNDER : - THE CONFIRMATION AND THE BANK STATEM ENT SUBMITTED BY THE ASSESSEE SHOWS LAT AN AMOUNT OF RS.220 CRORES IS RECEIVED FROM MERIDIAN CELLULAR PVT. LTD. ON 0.10.2009 AND THE ASSESSEE COMPANY HAS TRANSFERRRED THE ENTIRE AMOUNT ON 1.10.2009 THE VERY NEXT DAY AND TRANSFERRED THE ENTIRE AMOUNT INTO F OUR COMPANIES E QUALLY AMOUNTING TO RS.55 CRORES EACH. THE NAMES OF THESE FOUR COMPANIES ARE I) LINDTREE INDUSTRIES FINANCE LTD., II) PEARL HOUSING LTD., III) VALUE CORP SECURITIES AND FINANCE LTD. AND IV) VISHWAKARMA EQUIPMENT FINANCE LTD. THE ASSESSEE HA S RECEIVED THE MONEY ON ACCOUNT OF PROJECT ADVANCE FROM M/S. M ERIDIAN CELLULAR PVT. LTD. AMOUNTING TO RS.220 CRORES. THE ASSESSEE NEITHER SUBMITTED ANY DETAILS WITH RESPECT TO THE PROJECT NOR SUBMITTED ANY AGREEMENT ANY D OCUMENT IN SUPPORT OF PROJECT SUCH AS NAME OF THE PROJECT, NATURE, DURATION, DATE OF BEGINNING OF THE PROJECT, TOTAL COST OF THE PROJECT, WHETHER SINGLE HANDEDLY OR IN JOINT VENTURE, PLACE AND PURPOSE OF THE PROJECT ETC. THE ASSESSEE COMPANY HAS NOT SUBMITTED EVEN A SINGLE DOCUMENT WITH RES PECT TO THE PROJECT. INSTEAD IT IS SEEN FROM THE RECORDS THAT THE ASSESSEE HAS UTILIZED THIS AMOUNT OF RS.220 CRORES RECEIVED IN THE NAME OF PROJECT ADVANCE FROM M/S. MERIDIAN CELL ULAR PVT. LTD. TO REDEEM SHARES AND TO REPAY UNSECURED LOANS. THE DETAILS OF UTILISATION OF MONEY, IS AS UNDER: (I) TO REDEEM SHARES ISSUED AMOUNTING TO RS. 139.86 CRORES (SHOWN AS 14,00,000 SHARES ISSUED AT A PREMIUM OF RS. 999/ - PER SHARE IN THE A.Y. 2009 - 10) AND (II) REPAYMENT OF UNSECURED LOANS AMOUNTING TO RS. 80 CRORES - (THE ABOVE PAYMENTS ALSO TOTALING TO RS. 219.86 CRORES) M/S. ELDER IT SOLUTIONS PVT. LTD. 3 MOREOVER, THE ASSESSEE COMPANY HAS NOT GIVEN ANY DETAILS OF THE SAID PROJECT OR COPY OF ANY CONTRACT DETAILS SHOWING THE CONTRACTUAL OBLIGATION BETWEEN THE TWO PARTIES. THIS CLEARLY SH OWS THAT THE ASSESSEE HAS UTILIZED THIS AMOUNT AS IF IT BELONGS TO HIM AS PER HIS WISHES. IT IS Q UITE UNREASONABLE TO BELIEVE THAT ONE PERSON WILL ADVA NCE SUCH A HUGE AMOUNT WITHOUT P ROTECTING ITS INTEREST. A PRUDENT REASONABLE PERSON WOULD HAVE ENTERED INTO A VALID CO NTRACT DULY STAMPED AND REGISTERED WITH ALL THE DETA ILS OF CONTRACTUAL TERMS INCLUDING THE TIME SCHEDULE. A REASONABLE PERSON WOULD HAVE INCORPORATED PENALTY CLAUSE FOR THE NON IT IS SEEN FROM THE BALANCE SHEET OF THE ASSESSEE COMPANY THAT IT H AS NEGATIVE NET C URRENT ASSETS I.E. ITS CURRENT ASSETS MINUS CURRENT LIABILITIES IS A NEGATIVE FIGURE TO THE TUNE OF IS. (70,82,38,784/ - ). MOREOVER THE INVESTMENT OF THE ASSESSEE COMPANY IS LOCKED UP IN REFERENCE SHARES OF SONATA INVESTMENTS LIMITED WHEREIN HUGE PREMI UM OF RS. 999/ - FOR A HARE OF FACE VALUE OF RE.1/ - IS PAID BY THE ASSESSEE COMPANY. SONATA INVESTMENTS LIMITED, ; A LOSS MAKING COMPANY HAVING ACCUMULATED LOSSES OF RS. 416.58.CRORES WHICH HAVE FURTHER I N CREASED IN SUBSEQUENT YEARS AND IS REDUCING THIS AMO UNT EVERY YEAR FROM THE SHARE PREMIUM R ECEIVED. IT IS PERTINENT TO NOTE THAT THIS VERY COMPANY WAS ALLEGEDLY INVOLVED IN TRANSFER OF F UNDS BETWEEN SWAN TELECOM & RELIANCE ADA GROUP IN 2G SCAM PROSECUTION CASE BY CBI. FROM THIS IT IS VERY CLEAR THAT THE AS SESSEE COMPANY DOES NOT HAVE ANY FUNDS TO EXECUTE THE PROJECT SUPPOSED TO BE UNDERTAKEN BY THEM. IN SPITE OF THIS FACT M/S MERIDIAN CELLULAR LTD. WHO HAS ADVANCED SUCH A HUGE AMOUNT IS KEEPING SILENT AND HAS NOT TAKEN ANY L EGAL MEASURES AGAINST THE ASSESSE E COMPANY. FROM THESE ENTIRE FACTS AND CIRCUMSTANCES OF THE CASE, I AM OF THE OPINION THAT THE EXPLANATION OFFERED BY THE ASSESSEE REGARDING THE NATURE OF TRANSACTION ABOUT THE SUM OF RS. 219.86 CRORES CREDITED IN ITS BOOKS OF ACCOUNTS IS NOT SATISFACTORY . HENCE AS PER SEC.68 OF THE I. T. ACT, 1961, AN AMOUNT OF RS. 219.86 HAS TO BE CHARGED AS INCOME OF THE ASSESSEE FOR A.Y. 2010 - 11. . 10.1 FROM THE ABOVE IT IS SEEN THAT THE NATURE AND GENUINENESS OF THE TRANSACTION IS REMAINED UNEXPLAINED. 10.2 SEC TIONS 68 OF INCOME - TAX ACT, 1961 READS AS UNDER: - 'WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF AN ASSESSEE MAINTAINED FOR ANY PREVIOUS YEAR, AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE THEREOF OR THE EXPLANATION OFFERED BY HIM IS NOT, IN THE OPINION OF THE ASSESSING OFFICER, SATISFACTORY, THE SUM SO CREDITED MAY BE CHARGED TO INCOME TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR.' THUS, THE CONDITIONS FOR APPLICABILITY OF SECTION 68 ARE (I) EXISTENCE OF BOOKS OF ACCOUNT; (II) A CREDIT OF SUM IN THE BOOKS O F ACCOUNT OF AN ASSESSEE; AND (II I) ABSENCE OF A SATISFACTORY EXPLANATION OR NO EXPLANATION BY THE ASSESSEE ABOUT THE NATURE AND SOURCE OF THE SUM CREDITED. M/S. ELDER IT SOLUTIONS PVT. LTD. 4 IT NEEDS NO ELABORATION THAT THROUGH A CATENA OF DECISIONS THE COURTS HAVE LAID DOWN THE FOLLOWING THREE FUNDAMENTAL TESTS WHICH HAVE TO BE ESTABLISHED BY THE CREDITED. TH E P RI NCIP LE H AS B EE N FIRMLY ESTABLISHED BY SEVERAL JUD GMENTS, SOME OF WHICH ARE HIGHLIGHTED AS UNDER: - SUPREME COURT IN CASE OF CIT V. P. MOHANA KALA [2007] 291 ITR 278 / 161 TAXMAN 169 HELD THAT THE EXPRESSION 'ASSESSEE OFFERS NO EXPLANATION' MEANS WHERE THE ASSESSEE OFFERS NO PROPER, REASONABLE AND ACCEPTABLE EXPLANATION AS REGARDS THE SUM FOUND CREDITED IN THE BOOKS MAINTAINED BY THE ASSESSEE. THE LAW IS WELL - SETTLED THAT THE ONUS OF PROVING THE SOURCE OF A SUM OF MONEY FOUND TO HAVE BEEN RECEIVED BY AN ASSESSEE IS ON HIM AND WHERE THE NATURE AND SOURCE OF A RECEIPT, WHETHER IT BE OF MONEY OR OTHER PROPERTY, CANNOT BE SATISFACTORILY EXPLAINED BY THE ASSESSEE, IT IS OPEN TO THE REVENUE TO HOLD THAT IT IS THE INCOME OF THE ASSESSEE AND NO FURTHER BURDEN LIES ON THE REVENUE TO SHOW THAT THE INCOME IS FROM ANY PARTICULAR SOURCE [ROSHAN DI HATTI V. CIT [1977] 107 ITR 938 (SC)] THE BURDEN TO PROVE THE GENUINENESS' OF CASH CREDIT LIES ON THE TAXPAYER. IF THE ASSESSEE FAILS TO PROVE SATISFACTORILY THE SOURCE AND NATURE OF AMOUNTS OF CASH RECEIVED AND CREDITWORTHINESS OF THE CREDITOR, THE AO IS ENTITLED TO DRAW INFERENCE THAT THE RECEIPTS ARE OF AN AS SESSABLE NATURE [A. GOVINDARAJULU MUDALIAR V. CIT [1958] 34 ITR 807 (SC)] AS A MATTER OF FACT, SECTION 68 IS A STATUTORY RECOGNITION OF WHAT WAS PREVIOUSLY ESTABLISHED BY JUDICIAL DECISIONS TO THE EFFECT THAT WHERE CERTAIN SUMS OF MONEY WERE CLAIMED BY TH E ASSESSEE TO HAVE BEEN BORROWED FROM CERTAIN PERSONS, IT WAS FOR THE ASSESSEE TO PROVE BY COGENT AND PROPER EVIDENCE THAT THERE WERE GENUINE BORROWINGS AS THE FACTS ARE EXCLUSIVELY WITHIN THE ASSESSEE'S KNOWLEDGE. THIS HAS BEEN NOTED IN THE DECISIONS OF [ SIKRI 85 CO; P. LTD V. CIT 106 ITR 682,688; CIT VS. KULWANT KAUR 121 ITR 914; CIT VS. SAHIBGANJ ELECTRIC CABLES P LTD, 115 ITR 408,414]. IN BHARTI P. LTD. VS. CIT - 111 ITR 951; CIT VS. W J WALKER & CO 117 ITR 690; CIT VS. UNITED COMMERCIAL CO. 187 ITR 596 ; THE HONTALE CALCUTTA HIGH COURT HAS HELD THAT MERE FILING OF CONFIRMATORY LETTERS DOES NOT DISCHARGE THE ONUS THAT LIES ON THE ASSESSEE. IN CIT VS. PRECISION FINANCE PVT. LTD. 208 ITR 465; NIZAM WOOL AGENCY VS. CIT 193 ITR 318; THE HON'BLE COURTS HAVE H ELD THAT MERE FURNISHING OF PARTICULARS IS NOT ENOUGH. MERE PAYMENT BY ACCOUNT PAYEE CHEQUE IS NOT SACROSANCT NOR CAN IT MAKE A. NON - GENUINE TRANSACTION GENUINE. IN SUMATI DAYAL V. CIT [(1995) 214 ITR 801,806, 808 - 809 (SC)], THE APEX COURT HAS OBSERVED TH AT - APPARENT MUST BE CONSIDERED REAL UNTIL IT IS SHOWN THAT THERE ARE REASONS TO DISBELIEVE THAT THE APPARENT IS NOT THE REAL M/S. ELDER IT SOLUTIONS PVT. LTD. 5 AND THAT THE TAXING AUTHORITIES ARE ENTITLED TO LOOK INTO THE SURROUNDING CIRCUMSTANCES TO FIND OUT THE REALITY AND MATTER HAS TO BE CONSIDERED BY APPLYING THE TEST OF HUMAN PROBABILITIES. 11 . IT IS QUITE CLEAR FROM THE ABOVE DISCUSSION THAT IN THE INSTANT CASE, THE ASSESSEE COMPANY HAS FAILED TO DISCHARGE ITS BURDEN OF ESTABLISHING THE NATURE AND S. 219,86,00,0 00/ - IS TREATED AS UNEXPLAINED CASH CREDITS U/S. 68 OF THE I.T. ACT, 1961 AND IS ADDED TO THE TOTAL INCOME OF THE ASSESSEE COMPANY AND THE SA ME IS HEREBY HELD TO BE NOT ELIGIBLE FOR ANY DEDUCTION THERE AGAINST. PENALTY P ROCEEDINGS U/S 271(L)(C) ARE BEING IN ITIATED SEPARATELY FOR FILING INACCURATE P ARTICULARS OF INCOME AND CONCEALING TRUE PARTICULARS THEREOF. 1 2. IN VIEW OF THE DETAILED DISCUSSION MADE WITH THE AR OF THE ASSESSEE AND THE D ETAILS CUM SUBMISSION FILED BY THE AR AND PLACED ON R ECORD, THE TOTAL INCOME OF THE A SSESSEE IS BEING COMPUTED AS HEREUNDER : - TOTAL INCOME AS PER RETURN OF INCOME RS. 1,90,734/ - ADD: DISALLOWANCE U/S.68 AS DISCUSSED ABOVE RS. 219,86,00,000/ - RS. 219,87,90,734/ - 5. UPON ASSESSEE APPEAL LEARNED CIT(A) CONS IDERED ASSESSEES SUBMISSION AND OBTAINED REMAND REPORT AND REJOINDER FROM ASSESSEE, H E DELETED THE ADDITIONS HOLDING AS UNDER : - 7.3.4. FROM PERUSAL OF THE FACT, IT IS SEEN THAT THE AO ADDED THE SUM RECEIVED ON ACCOUNT OF PROJECT ADVANCE RECEIVED U/S. 68 OF THE ACT ON THE ALLEGED GROUND THAT THE COMPANY MERELY ROTATED MONEY, WHICH WAS COMING THROUGH BANK ACCOUNTS. BUT, THE AO HAS NOT BEEN ABLE TO BRING ON RECORD THAT THIS SOURCE/BANK ACCOUNTS WERE UNDISCLOSED BEFORE THE IT DEPARTMENT OR ANY UNDISCLOSED MO NEY WERE PUT IN THOSE BANK ACCOUNTS. FURTHER, THE ADDITION CANNOT BE MADE MERELY ON THE GROUND THAT THE NATURE OF PROJECT WERE NOT EXPLAINED IN THE ORIGINAL ASSESSMENT ORDER OR SO. IT IS BECAUSE THE APPELLANT HAD ALREAD Y FURNISHED THE IDENTITY AND CRED I T WO R T HINESS OF THE PARTIES AS WELL AS TRANSACTION THROUGH BANKING CHANNEL. AS REGARDS, THE AOS OBSERVATION THAT SUCH A HUGE BORROWING OUGHT TO HAVE BEEN APPROVED BY THE BOARD OF DIRECTORS OF THE ASSESSEE WHICH COULD BE DEMONSTRATED BY WAY OF MINUTES OF M EETINGS ETC., BUT NOTHING AVAILABLE TO THIS EFFECT, NOTHING PREVENTED THE AO TO ASK FOR THE RELEVANT MINUTES WITH REGARD TO BORROWINGS. AS REGARDS, AO'S OBSERVATION THAT THERE WAS NO AGREEMENT FOR THE PURPOSE OF BORROWING, IT MAY BE POINTED OUT THAT THE A PPELLANT HAS M/S. ELDER IT SOLUTIONS PVT. LTD. 6 SHOWN INTER CORPORATE DEPOSIT WITHIN ITS GROUP OR KNOWN COMPANIES, THE QUESTION OF WRITTEN AGREEMENT MAY NOT BE NECESSARY. AS REGARDS THE AO'S OBSERVATION THAT THE ASSESSEE HAS NOT UTILISED THE FUNDS FOR THE PROJECT FOR WHICH THE SAME WAS REC EIVED, THERE ARE MANY JUDGEMENTS WHICH SAYS THAT IT IS FOR THE ASSESSEE TO USE ITS FUNDS AS IT MAY DEEMED FIT KEEPING IN VIEW THE EXIGENCY OF THE BUSINE SS NEEDS AND THIS CANNOT BE DICTATED BY ANY PERSON OTHER THAN THE ASSESSEE 7.3.5. FURTHER, EVEN ON FACTS AS SPECIFIED IN GROUND III, THERE IS NO DISPUTE ABOUT IDENTITY AND SOURCE OF THE AMOUNT RECEIVED FROM MERIDIAN CELLULAR PRIVATE LIMITED. IN FACT, THE APPELLANT HAS ALSO ESTABLISHED THE SOURCE OF SOURCE WITH THE RELEVANT DOCUMENTARY EVIDENCES IN THE FORM O F BANK STATEMENTS, CONFIRMATIONS ETC., THOUGH THERE IS NO SUCH REQUIREMENT UNDER THE PREVAILING LAW. THE AO IN THE REMAND REPORT, ALSO IS NOT DISPUTING THE IDENTITY AND THE SOURCE OF THE AFORESAID AMOUNT RECEIVED BY THE APPELLANT. THE ONLY ISSUE IS THAT, THE APPELLANT HAS NOT CARRIED OUT ANY PROJECT EVEN THOUGH, THE AMOUNT HAS BEEN RECEIVED AS PROJECT ADVANCE. THE APPELLANT HAS CONTENDED THAT JUST BECAUSE THE APPELLANT COULD NOT PURSUE THE PROJECT IN INFRASTRUCTURE SECTOR VISUALIZED AT THE TIME OF TAKING T HE ADVANCE, IT DOES NOT MEAN THAT THE NATURE OF TRANSACTION HAS NOT BEEN EXPLAINED AND IT DOES NOT MEAN THAT THE APPELLANT HAS NOT DISCHARGED THE BURDEN U/S 68 OF THE ACT. FURTHER, AS THE APPELLANT COULD NOT PURSUE THE OBJECT INITIALLY VISUALIZED, BY MUTUA L AGREEMENT, THE AMOUNT RECEIVED HAS BEEN CONSTRUED AS INTER CORPORATE DEPOSIT AND THE SAME IS APPEARING AS LIABILITY IN THE BOOKS OF THE APPELLANT EVEN AS ON DATE AND THERE IS NO DISPUTE ON THE SAME. HENCE, THE APPELLANT HAS ESTABLISHED THE IDENTITY, GENU INENESS AND CREDIT WORTHINESS OF THE PARTY FROM WHOM THE MONEY HAS BEEN RECEIVED. CONSIDERING THE AFORESAID FACTS AND APPLYING THE RATIO OF ABOVE REFERRED JUDICIAL PRONOUNCEMENTS RELIED UPON BY THE APPELLANT, NAMELY, ITO V. GREEN INFRA LTD (392 ITR 7) (BOM BAY HC) AND CIT VS GAGANDEEP INFRASTRUCTURE P VT LTD . ( ITA 1613 OF 2013, ORDER DATED MARCH 20, 2017) (BOMBAY HC),IN THE PRESENT CASE AND THE FACT THAT THESE JUDGEMENTS ARE FROM 'HON'BLE JURISDICTIONAL HIGH COURT OF BOMBAY, THE ADDITION MADE OF RS. 219.86 CR ORES BY THE ASSESSING OFFICER U/S 68 CANNOT BE SUSTAINED. HOWEVER, THE AO SHALL BE FREE TO TAKE REMEDIAL MEASURES IN CASE EITHER OF THESE TWO ORDERS ARE MODIFIED OR REVERSED BY THE HON'BLE SUPREME COURT IN FUTURE. SUBJECT TO THE FINAL OUTCOME OF THESE TWO DECISIONS, THE ADDITION OF RS. 219.86 CRORES IS DIRECTED TO BE DELETED. 6. AGAINST THE ABOVE ORDER, REVENUE IS IN APPEAL BEFORE US. M/S. ELDER IT SOLUTIONS PVT. LTD. 7 7. DESPITE NOTICE AND SERVICE OF NOTICE THROUGH DR, NONE APPEARED FOR THE ASSESSEE. HENCE, WE ADJUDICATE THE ISSUE BY HEA RING THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE RECORD. 8. UPON CAREFUL CONSIDERATION WE FIND THAT THE ASSESSING OFFICER HAS GIVEN A FINDING THAT THE ASSESSEE IS IN RECEIPT OF LOAN OF RS. 219,86,00,000/ - . HE HAS FOUND IT TO BE A TRANSACTION O F ROUTING MONEY. THE MONEY HAS COME FROM A TRAIL OF SEVERAL COMPANIES. IT HAS ALSO BEEN GIVEN TO SOME OTHER ENTITIES. THE ASSESSING OFFICER HAS FOUND THAT THE ASSESSEE COMPANY HAS NEITHER ANY CAPACITY NOR ANY NEED, NOR ANY PURPOSE FOR RECEIVING SUCH LOAN F OR THE PURPOSE OF ITS BUSINESS. THE ASSESSING OFFICER HAS DEALT WITH THE LACK OF G ENUINENESS OF THE TRANSACTION AND OTHER ASPECTS AND HENCE HELD THAT THE SAME IS TO BE ADDED U NDER SECTION 68 OF THE I.T. ACT , AS UNEXPLAINED. 9. ON THE OTHER HAND, LEARNED C IT(A) HAS SUMMARIL Y DELETED THE ADDITION UPON ASSESSEE SUBMISSIONS. LEARNED CIT(A) HAS GIVEN NO FINDING ABOUT THE ASSESSING OFFICERS OBJECTION ABOUT THE LACK OF GENUINENESS OF THE TRANSACTION. JUST BECAUSE THE TRANSACTIONS ARE RO U TED TO BANK ACCOUNT THAT WOULD CERTAINLY NOT MAKE THE TRANSACTION SACROSANCT SO AS TO BRING IT OUT OF THE AMBIT OF SECTION 68 OF THE I.T.ACT. 10. ON SEVERAL OCCASIONS LEARNED CIT(A) HAS HELD THAT THERE IS A PRESUMPTION THAT RECORDS ARE AVAILABLE AND ASSESSING OFFICER HAS NOT MA DE FOR THE ENQUIRY. IN OUR CONSIDERED OPINION IT IS SETTLED LAW THAT REVENUE AUTHORITIES SHOULD NOT PUT UPON BLINKERS. FURTHERMORE THE POWER OF LEARNED CIT(A) ARE COTE R MI N OUS WITH THAT OF THE ASSESSING OFFICER. IF LEARNED CIT(A) FOUND ANY SHORTCOMING HE SH OULD HAVE MADE THE NECESSARY EXAMINATION HIMSELF BEFORE GRANT OF SUCH HUGE RELIEF. FURTHERMORE JUST BECAUSE DOCUMENTS HAVE BEEN PRODUCED THE AMOUNT INVOLVED CANNOT GO OUT OF THE AMBIT OF SECTION 68 OF THE AC WITHOUT FULLY SATISFYING THE REQUIREMENT THEREIN . THIS HAS BEEN UPHELD BY HON'BLE APEX COURT IN A RECENT DECISION IN THE CASE OF PR.CIT VS. NRA IRON AND STEEL PVT. LTD. (APPEAL NO. 29855/2018 VIDE ORDER M/S. ELDER IT SOLUTIONS PVT. LTD. 8 DATED 5.3.2019) . ACCORDINGLY, IN THE BACKGROUND OF THE AFORESAID DISCUSSION AND PRECEDENT WE SET ASI DE THE ISSUE TO THE FILE OF LEARNED CIT(A). L EARNED CIT(A) IS DIRECTED TO GIVE COGENT FINDING AND THEREAFTER DEC IDE THE ISSUE AFTER GIVING THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD. 11. IN THE RESULT, APPEAL FILED BY THE REVENUE STANDS ALLOWE D FOR STATISTICAL PURPOSES. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 2 . 4 . 201 9 . SD/ - SD/ - (PAWAN SINGH ) (SH A MIM YAHYA ) J U DICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 2 / 4 / 20 1 9 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// ( SENIOR P RIVATE S ECRETARY ) PS ITAT, MUMBAI