MANISH VASTIMAL JAIN, MUMBAI V. ITO 19(2)(3), MUMBAI

ITA 5803/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7882 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-12-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Next Hearing Date: 22-05-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 28-09-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: M C OMI NINGSHEN
• Keywords: Reopening of assessment; Unexplained investment; Loose papers; Opportunity of being heard; Accommodation entries; Reassessment proceedings
• Section: 143(3); 133(6); 131; 69; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H MUMBAI BEFORE SHRI MAHAVIR SINGH (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 5803/MUM/2016 ASSESSMENT YEAR: 2007 - 08 SHRI MANISH VISTIMAL JAIN 93/97, 1 ST FLOOR, R.NO. 2, SHUKLA BHAVAN, TAMBAKANTA, MUMBAI - 400002 VS. ITO - 18(2)(3), MUMBAI PAN NO. AABPJ9809M APPELLANT RESPONDENT ITA NO. 5804/MUM/2016 ASSESSMENT YEAR: 2007 - 08 SHRI VIKASH JAYANTILAL SOLANKI 101/102, DD PLAZA, THIRD AGIARY LANE, MUMBAI - 400002 VS. ITO - 18(2)(3), MUMBAI PAN NO. AA EPS4197A APPELLANT RESPONDENT ASSESSEE BY : MR. RAKESH JOSHI , AR REVENUE BY : MR. M.C. OMI NINGSHEN , DR DATE OF HEARING : 17 /10/2017 DATE OF PRONOUNCEMENT : 27/12/2017 ORDER PER N.K. PRADHAN, A.M. THESE TWO APPEALS FOR THE ASSESSMENT YEAR 2007 - 08 ARE DIRECTED AGAINST THE ORDER OF THE COMMIS SIONER OF INCOME TAX (APPEALS) - 29 , MUMBAI AND ARISE OUT OF THE ASSESSMENT COMPLETED U/S 143(3) R.W.S 147 OF THE INCOME TAX ACT 1961, (THE ACT). AS COMMON ISSUES ARE SHRI MANISH V. JAIN & VIKASH JAYANTILAL ITA NOS. 5803 & 5804/MUM/2016 2 INVOLVED, WE ARE PROCEEDING TO DISPOSE THEM OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. FA CTS BEING SIMILAR WE BEGIN WITH THE CASE OF SHRI MANISH VASTIMAL JAIN. THE GROUND RAISED BY THE ASSESSEE IN THIS APPEAL READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. ASSESSING OFFICER ERRED IN RE - OPENING THE ASSESSME NT U/S 147 OF THE INCOME TAX ACT. 1961. THE APPELLANT PRAYS THAT THE RE - OPENING OF ASSESSMENT U/S 147 OF THE INCOME TAX ACT, 1961 MAY BE DECLARED BAD IN LAW AND REASSESSMENT ORDER MAY PLEASE BE CANCELLED. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF LD. ASSESSING OFFICER BY TREATING THE PAYMENT OF RS.28,75,000/ - MADE TO DEVELOPER AS UNEXPLAINED INVESTMENT U/S 69 OF THE ACT, WITHOUT CONSIDERING THE FACT AND CIRCUMSTANCES OF THE CASE. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASESSEE FILED HIS RETURN OF INCOME FOR THE AY 2007 - 08 ON 26.10.2007 DECLARING TOTAL INCOME OF RS.5,23,690/ - . THE ASSESSING OFFICER (AO) MADE THE ASSESSMENT U/S 143(3) ON 08.09.2009 ASSESSING THE TOTAL INCO ME AT RS.5,62,210/ - . SUBSEQUENTLY HE RECEIVED INFORMATION FROM THE DEPUTY DIRECTOR OF INCOME TAX (INVESTIGATION) , UNIT - III(2), MUMBAI (HEREINAFTER REFERRED AS DDIT) THAT M/S ESQUE FINMARK PVT. LTD., A DEVELOPER, HAD RECEIVED PAYMENTS IN CHEQUE/CASH FROM CERTAIN INVESTORS WHO HAD MADE PAYMENT TOWARDS BOOKING OF FLATS. AS PER THE ABOVE INFORMATION RECEIVED, INQUIRIES WERE MADE U/S 131 BY THE DDIT AND IT WAS FOUND THAT THE ASSESSEE WAS ONE OF THE INVESTORS. ON THE BASIS OF THAT INFORMATION, THE AO ISSUE D NOT ICE U/S 148 ON 28.03.2014. SHRI MANISH V. JAIN & VIKASH JAYANTILAL ITA NOS. 5803 & 5804/MUM/2016 3 DURING THE COURSE OF REASSESSMENT PROCEEDINGS THE ASSESSEE FILED ALLOTMENT LETTER ON 28.05.2005 IN RESPECT OF ALLOTMENT OF F LAT N O. 702 A WING SHANTI DARSHAN , KALACHOWKLE, PARLE, MUMBAI 400033 WHICH DID NOT BEAR THE SIGNATURE OF THE ALLOTTEE OR THE D IRECTOR AND ANOTHER ALLOTMENT LETTER DATED 26.10.2010 WHICH WAS SIGNED BY THE D IRECTOR OF THE COMPANY AND THE PURCHASE PRICE HA D BEEN GIVEN AS RS.29,75,000/ - . THE ASSESSEE HA D FURTHER STATED THAT THE INVESTMENT IN THE FLAT WAS MADE ON TWO NAMES I.E. THE ASSESSEE AND HIS WIFE MS. PINA M. JAIN EQUALLY AND THE SAME WAS REFLECTED IN THEIR PERSONAL BALANCE SHEET . RECEIPTS OF RS.1,00,000/ - VIDE CHEQUE NO.973032 DATED 26.02.2005 BY THE ASSESSEE AND RS.1,00,000/ - VIDE CHEQUE NO.845 589 DATED 02.03.2005 BY MS. PINA M JAIN WERE PLACED ON RECORD IN HIS SUBMISSION BEFORE THE DDIT . T HE ASSESSEE HA D ADMITTED THAT OUT OF THE TOTAL AMOUNT OF RS,30,75,000/ - FOR F LAT NO. 702 - A IN SHANTI DARSHAN , A SUM OF RS.28,75,000/ - WAS PAID BY CASH AND RS. 2,00,000/ - WAS PAID BY CHEQUE. THE ASSESSEES AUTHORIZED REPRESENTATIVE HA D CONTENDED THAT SINCE THE PAYMENTS HA D BEEN MADE IN THE FY 2004 - 05 RELEVANT TO THE AY 2005 - 06, THE REOPENING PROCEEDINGS FOR AY 2007 - 08 WAS INVALID. DURING THE COURSE OF REASSESSM ENT PROCEEDINGS , THE AO ISSUED NOTICE U/S 133(6) DATED 23.02.2015 TO M/S ESQUE FINMARK PVT. LTD. CALLING FOR SPECIFIC INFORMATION. IN RESPONSE TO IT, THE AO RECEIVED INFORMATION FROM THE ABOVE COMPANY THAT THE DATE OF BOOKING OF FLAT NO.702, A WING, SHANTI DARSHAN WAS 26.05.2006. THE AO ALSO RECEIVED FROM THE ABOVE CO MPANY A COPY OF ALLOTMENT LETTER DATED 26.05.2006 ISSUED TO THE ASSESSEE BEARING THE SEAL OF THE COMPANY AND THE SIGNATURE OF THE DIRECTOR. SHRI MANISH V. JAIN & VIKASH JAYANTILAL ITA NOS. 5803 & 5804/MUM/2016 4 THE AO OBSERVED THAT THE ASSESSEE COULD PRODUCE PROOF IN RESPECT OF PAYMENTS MADE IN CHEQUE TO THE EXTENT OF RS.2 ,00,000/ - . ALSO THE AO NOTED THAT IN HIS SUBMISSION DATED 28.04.2014 BEFORE THE DDIT, THE ASSESSEE SUBMITTED TO HAVING PAID RS.28,75,000/ - IN CASH BUT HE COULD NOT PRODUCE ANY CASH RECEIPT IN RESPECT OF THE SAME. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, THE AO AN ADDITION OF RS.28,75,000/ - U/S 69 OF THE ACT. 4. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) FOUND THAT THE ONLY PIECE OF EVIDENCE WHICH THE ASSESSEE COULD FILE WAS A PHOTOCOPY OF TWO PAGES SUPPOSED TO BE FROM HIS DIARY WHICH HAVE THE ENTRIES OF CA SH PAYMENTS AS UNDER: 1. RS.3 LAKH ON 31.01.2005 (CASH GIVEN) 2. RS.5 LAKH ON 18.01.2005 (CASH GIVEN) 3. RS.5 LAKH ON 27.01 .2005 (CASH GIVEN) 4. RS.5 LAKH ON 09 .02.2005 (CASH GIVEN) 5. RS.5 LAKH ON 1 7.02.2005 (CASH GIVEN) 6. RS.5,75,000 ON 28.02.2005 (CASH GIVEN) 7. RS.1,00,000 ON 26.02.2005 ( CHQ GIVEN) 8. RS.1,00,000 ON 02.03.2005 (CHQ GIVEN) THE LD. CIT(A) THUS FOUND THAT THE AUTHENTICITY OF THESE PAGES IS NOT PROVED UNLESS THE PERSON MR. PARAS PORWAL FROM M/S ESQUE FINMARK PVT. LTD. WHO WAS SUPPOSED TO HA VE ACKNOWLEDGED THESE PAYMENTS CONFIRM S THE RECEIPTS. THE ASSESSEE WAS NOT IN A POSITION TO GET SUCH A CONFIRMATION. IN VIEW OF THE ABOVE, THE LD. CIT(A) DISMISSED THE APPEAL FILED BY THE ASSESSEE. 5. BEFORE US, THE LD. COUNSEL OF THE ASSESSEE FILES A COPY OF THE ORDER OF THE SMC BENCH MUMBAI IN THE CASE OF SHRI KANTILAL S. SOLANKI FOR AY 2007 - 08 (ITA NO. 5145/MUM/2016) AND SUBMITS THAT THE CASE OF THE ASSESSEE IS SQUARELY COVERED BY THE ABOVE ORDER. HE ALSO FILES A PAPER SHRI MANISH V. JAIN & VIKASH JAYANTILAL ITA NOS. 5803 & 5804/MUM/2016 5 BOOK (P/B) CONTAINING (I) ITR ACKNOWLEDGEMENT, BALANCE SHEET AND PERSONAL CAPITAL ACCOUNT FOR AY 2006 - 07 OF MANISH V. JAIN, (II) ITR ACKNOWLEDGEMENT FOR AY 2007 - 08 OF MANISH V. JAIN, (III) NOTICE U/S 148 OF INCOME TAX ACT, 1961 FOR AY 2007 - 08, (IV) REPLY FILED BY THE APPELLANT TO THE AO IN RESPONSE TO NOTICE U/S 148 VIDE LETTER DATED 28.04.2014, (V) REASON RECORDED FOR REOPENING OF ASSESSMENT FOR AY 2007 - 08, (VI) LETTER OF ALLOTMENT ISSUED BY M/S ESQUE FINMARK PVT. LTD. DATED 28.05.200 5, (VII) BANK STATEMENT OF MANISH VASTIMAL JAIN DULY MARKED FOR PAYMENT TO M/S ESQUE FINMARK PVT. LTD. FOR THE PERIOD 01.02.2005 TO 31.03.2006, (VIII) REPLY FILED BY M/S ESQUE FINMARK PVT. LTD. IN RESPONSE TO NOTICE U/S 133(6) OF THE INCOME TAX ACT, 1961, (IX) LETTER OF ALLOTMENT ISSUED BY M/S ESQUE FINMARK PVT. LTD. DATED 26.05.2006, (X) HOME LOAN DOCUMENTS AND AGREEMENT ISSUED BY ICICI BANK IN THE NAME OF MANISH V. JAIN, (XI) SUBMISSION MADE BEFORE ITO14(1)(2) BY THE APPELLANT PROVIDING DETAILS REGARDING CASH PAYMENTS, (XII) COPY OF SUBMISSION MADE BEFORE DDIT(INV) UNIT - III(2) BY MANISH JAIN, (XIII) COPY OF DIARY MAINTAINED FOR ACKNOWLEDGMENT CASH RECEIPTS AND (XIV) LETTER OF ALLOTMENT ISSUED BY M/S ESQUE FINMARK PVT. LTD. DATED 26.10.2010 ON THE OTHER H AND, THE LD. DR RELIES ON THE ORDER OF THE LD. CIT(A). 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. THE REASONS FOR OUR DECISION ARE GIVEN BELOW. WE BEING WITH THE 1 ST GROUND OF APPEAL. HERE IS A CASE WHERE THE AO RECEIVED SPECIFIC INFORMATION THAT THE ASSESSEE WAS AN INVESTOR HAVING PAID AMOUNTS IN CHEQUE/CASH TO M/S ESQUE FINMARK PVT. LTD. WHICH WAS NOT DISCLOSED IN THE RETURN OF INCOME FILED ON 26.10.2007. SHRI MANISH V. JAIN & VIKASH JAYANTILAL ITA NOS. 5803 & 5804/MUM/2016 6 AT THIS JUNCTURE WE COME ACROSS A CATENA OF PRECEDENTS ON THE INSTANT ISSUE. IN ORDER TO AVOID PROLIXITY, WE REFER BELOW TO ONLY A FEW DECISIONS. ASSESSEE MUST DISCLOSE ALL PRIMARY FACTS FULLY AND TRULY. THE WORDS OMISSION OR FAILURE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT FOR THAT YEAR POSTULATE A DUTY ON EVERY ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT. WHAT FACTS ARE MATERIAL AND NECESSARY FOR ASSESSMENT WILL DIFFER FROM CASE TO CASE. THERE CAN BE NO DOUBT THAT THE DUTY OF DISCL OSING ALL THE PRIMARY FACTS RELEVANT TO THE DECISION ON THE QUESTION BEFORE THE AO LIES ON THE ASSESSEE AS HELD IN CALCUTTA DISCOUNT CO. LTD. V. ITO (1961) 41 ITR 191, 200 (SC), MALEGAON ELECTRICITY CO. P. LTD. V. CIT (1970) 78 ITR 466 (SC), CIT V. BHANJI LAVJI (1971) 79 ITR 582 (SC), CIT V. BURLOP DEALERS LTD . (1971) 79 ITR 609 (SC), ITO V. LAKHMANI MEWAL DAS (1976) 103 ITR 437, 445 (SC), ASSOCIATED STONE INDUSTRIES (KOTAH) LTD. V. CIT (1997) 224 ITR 560, 572 (SC). EVERY DISCLOSURE IS NOT AND CANNOT BE TREATED TO BE A TRUE AND FULL DISCLOSURE. A DISCLOSURE MAY BE A FALSE ONE OR TRUE ONE. IT MAY BE A FULL DISCLOSURE OR IT MAY NOT BE. A PARTIAL DISCLOSURE MAY VERY OFTEN BE A MISLEADING ONE. IN SHRI KRISHNA (P.) LTD. V. ITO [1996] 87 TAXMAN 315 (SC) , IT HAS BEEN HELD THAT WHAT IS REQUIRED IS A FULL AND TRUE DISCLOSURE OF ALL MATERIAL FACTS NECESSARY FOR MAKING ASSESSMENT FOR THAT YEAR. IN THE CASE OF OM VINYLS P. LTD. V. ITO [WRIT PETITION (L) NO. 3114 OF 2014], THE HON BLE BOMBAY HIGH COURT HAS HELD THAT: THE INFORMATION RECEIVED BY THE ASSESSING OFFICER ON WHICH BASIS THE IMPUGNED NOTICE IS ISSUED IS SPECIFIC. THERE IS NO AMBIGUITY IN THE INFORMATION WHICH WOULD REQUIRE INVESTIGATION. THE INFORMATION OF SHRI MANISH V. JAIN & VIKASH JAYANTILAL ITA NOS. 5803 & 5804/MUM/2016 7 ACCOMMODATION E NTRIES HAS BEEN GIVEN BY A PARTICIPANT AND THIS IS REASON ENOUGH TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. AT THIS STAGE, THE ASSESSING OFFICER IS NOT REQUIRED TO CONCLUSIVELY PROVE THAT THE REASONS IN SUPPORT OF THE IMPUGNED NOTICE ESTABLISH THAT THE PETITIONER HAS TAKEN ACCOMMODATION ENTRIES. THIS IS A MATTER WHICH WOULD BE SUBJECT OF FURTHER INVESTIGATION DURING THE REASSESSMENT PROCEEDINGS. AT THAT STAGE IT WOULD BE OPEN TO THE PETITIONER TO RAISE ALL PERMISSIBLE DEFENCES AND ALSO TO INSIST ON CROSS EXAMINATION OF THE PERSONS WHO HAVE MADE A STATEMENT IMPLICATING THE PETITIONER IN HAVING PARTICIPATED IN TAKING ACCOMMODATION ENTRIES. HOWEVER THESE ARE SUBJECT MATTERS OF INVESTIGATION INTO ADJ UDICATORY FACTS AND THIS COURT WOULD NOT IN THE PRESENT FACTS AT THE VERY THRESHOLD PREVENT THE ASSESSING OFFICER FROM MAKING FURTHER ENQUIRY INTO A PRIMA FACIE VIEW WHICH HAS BEEN FORMED IN THE REASONS INDICATED IN SUPPORT OF THE IMPUGNED NOTICE . AS THE ASSESSEE IN THE INSTANT CASE HAS FAILE D TO DISCLOSE THE PRIMARY FACTS FULLY AND TRULY, THE AO HAS RIGHTLY ISSUED NOTICE U/S 148. THUS THE 1 ST GROUND OF APPEAL IS DISMISSED . 6.1 WE NOW TURN TO THE 2 ND GROUND OF APPEAL. IT HAS BEEN RIGHTLY OBSERVED BY THE LD. CIT(A) THAT THE ONLY PIECE OF EVIDENCE WHICH THE ASSESSEE COULD SUPPLY IN HIS SUPPORT WAS A PHOTOCOPY OF TWO PAGES SUPPOSED TO BE FROM HIS DIARY WHICH HAVE ENTRIES OF CASH PAYMENT, DELINEATED AT PARA 4 HEREINBEFORE. THE AUTHENTICITY OF THESE PA GES IS NOT PROVED, UNLESS THE PERSON MR. PARAS PORWAL FROM M/S ESQUE FINMARK PVT. LTD. WHO WAS SUPPOSED TO HAVE ACKNOWLEDGED THESE PAYMENTS CONFIRMS THE RECEIPT. THE ASSESSEE COULD NOT FILE A CONFIRMATION BEFORE THE AO OR THE LD. CIT(A). IN THE CASE OF CE NTRAL BUREAU OF INVESTIGATION V. V.C. SHUKLA AND ORS 1998 3SCC 410, THE HONBLE SUPREME COURT HAS HELD THAT FILE CONTAINING LOOSE SHEETS OF PAPERS ARE NOT BOOK AND HENCE ENTRIES SHRI MANISH V. JAIN & VIKASH JAYANTILAL ITA NOS. 5803 & 5804/MUM/2016 8 THEREIN NOT ADMISSIBLE U/S 34 OF THE EVIDENCE ACT, 1872. FURTHER IT WAS HELD THAT ENTRIES IN BOOKS OF ACCOUNT SHALL NOT ALONE BE SUFFICIENT EVIDENCE TO CHARGE ANY PERSON WITH LIABILITY. ENTRIES, EVEN IF RELEVANT, ARE ONLY CORROBORATIVE EVIDENCE. INDEPENDENT EVIDENCE AS TO TRUSTWORTHINESS OF THOSE ENTRIES IS NECESSARY TO FASTEN THE LIABILITY. IT WAS FURTHER HELD THAT LOOSE SHEETS OR SCRAPS OF PAPER CANNOT BE TERMED AS BOOK FOR THEY CAN BE EASILY DETACHED AND REPLACED. IN A RECENT JUDGMENT, THE HONBLE SUPREME COURT VIDE ORDER DATED 11 TH JANUARY 2017 IN COMMON CAUSES V. UNION OF I NDIA IN W.P. (CIVIL) NO. 505 OF 2015 HAS HELD: ENTRIES IN LOOSE PAPERS/SHEETS ARE IRRELEVANT AND INADMISSIBLE AS EVIDENCE. SUCH LOOSE PAPERS ARE NOT BOOKS OF ACCOUNT AND THE ENTRIES THEREIN ARE NOT SUFFICIENT TO CHARGE A PERSON WITH LIABILITY. EVEN IF BOOKS OF ACCOUNT ARE REGULARLY KEPT IN THE ORDIN ARY COURSE OF BUSINESS, THE ENTRIES THEREIN SHALL NOT ALONE BE SUFFICIENT EVIDENCE TO CHARGE ANY PERSON WITH LIABILITY. IT IS INCUMBENT UPON THE PERSON RELYING UPON THOSE ENTRIES TO PROVE THAT THEY ARE IN ACCORDANCE WITH FACTS. IN VIEW OF THE ABOVE JUDGM ENTS OF THE HONBLE SUPREME COURT WHICH ARE RELEVANT TO THE INSTANT CASE, WE ARE CONSTRAINED NOT TO FOLLOW THE ORDER OF THE SMC BENCH, IN THE CASE OF SHRI KANTILAL S. SOLANKI RELIED ON BY LD. COUNSEL OF THE ASSESSEE. WE ARE OF THE CONSIDERED VIEW THAT THE CONTENTIOUS ISSUE IN THE INSTANT CASE COULD BE RESOLVED BY EXAMINING M/S ESQUE FINMARK PVT. LTD. BY THE AO. A PROPER HEARING MUST ALWAYS INCLUDE AN OPPORTUNITY TO THOSE WHO ARE PARTIES IN THE CONTROVERSY FOR CORRECTIN G OR CONTRADICTING ANYTHING PREJUDICIAL TO THEIR VIEW. SHRI MANISH V. JAIN & VIKASH JAYANTILAL ITA NOS. 5803 & 5804/MUM/2016 9 THE HON'BLE SUPREME COURT IN STATE OF KERALA V. K.T. SHADULI GROCERY DEALER AIR 1977 SC 1627, RECOGNISED THE IMPORTANCE OF ORAL EVIDENCE BY HOLDING THAT THE OPPORTUNITY TO PROVE THE CORRECTNESS OR COM PLETENESS OF THE RETURN NECESSARILY CARRY WITH IT THE RIGHT TO EXAMINE WITNESSES AND THAT INCLUDES EQUALLY THE RIGHT TO CROSS - EXAMINE WITNESSES. THE SAME HAS BEEN REITERATED IN ITO V. M. PIRAI CHOODI (2012) 20 TAXMANN.COM 733 (SC). WE, THEREFORE, SET A SIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE AO TO MAKE AN ASSESSMENT DE NOVO BY EXAMINING M/S ESQUE FINMARK PVT. LTD. AND GIVING AN OPPORTUNITY TO THE ASSESSEE TO CROSS - EXAMINE. WE DIRECT THE ASSESSEE TO FILE THE RELEVANT DOC UMENTS/EVIDENCE BEFORE THE AO. NEEDLESS TO SAY THE AO WOULD GIVE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE FINALIZING THE ASSESSMENT ORDER. THUS THE 2 ND GROUND OF APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 7. FACTS BEING SIMILAR, OUR DECISION IN THE CASE OF SHRI MANISH VASTIMAL JAIN APPLIES MUTATIS MUTANDIS TO THE CASE OF SHRI VIKASH JAYANTILAL SOLANKI. 8 . IN THE RESULT, THE APPEALS ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 27/12/2017. SD/ - SD/ - (MAHAVIR SINGH) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 27/12/2017 RAHUL SHARMA, SR. P.S. SHRI MANISH V. JAIN & VIKASH JAYANTILAL ITA NOS. 5803 & 5804/MUM/2016 10 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// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI