Shri Shirish C. Karia, Pune V. DCIT, Cir.-2, Pune

ITA 604/PUN/2010

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1928 (ITAT-PUNE)
• Duration Of Justice: 6 year(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 15-12-2015
• Assessment Year: misc
• Appeal Filed On: 20-04-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: HITENDRA NINAWE
• Keywords: Search and seizure; Document seized; Principle of natural justice; Opportunity of cross examination; Block assessment; Documents seized
• Section: 132

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE . . , ! , # $ BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.604/PN/2010 BLOCK PERIOD 1991-92 TO 2001-02 SHRI SHIRISH C. KARIA, PROP. OF M/S. SIDDHARTH BUILDERS, SIDDHARTH CHAMBERS, LANE NO.5, OPP. CANARA BANK, NORTH MAIN ROAD, KOREGAON PARK, PUNE 411001 . / APPELLANT V/S DCIT, CIRCLE-2, PUNE . / RESPONDENT / ASSESSEE BY : SHRI NIKHIL PATHAK / REVENUE BY : SHRI HITENDRA NINAWE / ORDER PER R.K.PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 24-02-2010 OF THE CIT(A)-II, PUNE RELATING TO THE BLOCK PERIOD 1991-92 TO 2001-02. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS THE PROPRIETOR OF M/S. SIDDHARTH BUILDERS ENGAGED IN THE BUSINE SS OF BUILDING AND DEVELOPING HOUSES ON OPEN LAND. A SEARCH A ND SEIZURE ACTION U/S.132 WAS CARRIED ON AT THE / DATE OF HEARING :17.03.2016 / DATE OF PRONOUNCEMENT:29.04.2016 2 ITA NO.604/PN/2010 BUSINESS/RESIDENTIAL PREMISES OF SHRI TAYYAB HABIB CHOTANI ON 14-02-2001. DURING THE COURSE OF SEARCH, CERTAIN INCRIMINATING DOCUMENTS WERE SEIZED BY THE DEPARTMENT FRO M THE RESIDENTIAL PREMISES OF SHRI TAYYAB HABIB CHOTANI. DUR ING THE COURSE OF BLOCK ASSESSMENT PROCEEDINGS IN THE CASE OF SHRI TAYYAB HABIB CHOTANI IT WAS FOUND THAT THE DOCUMENTS SE IZED BY PART NO.6, I.E., BUNDLE NO.1 PAGE NO.18 IS RELATED TO THE PAYMENTS MADE BY SHRI SHIRISH C. KARIA TO SHRI TAYYAB HA BIB CHOTANI IN RESPECT OF SALE OF LAND SITUATED AT S.NO.208, AT KALYANI NAGAR, YERAWADA, PUNE 411006. 3. BEFORE ACIT, CENTRAL CIRCLE-1(1), PUNE, SHRI TAYYAB HABIB CHOTANI HAD ADMITTED THAT THE TRANSACTION IN THE S AID SEIZED DOCUMENTS ARE FOR THE PAYMENTS MADE BY SHRI SHIR ISH C. KARIA IN CASH AS WELL AS BY CHEQUE TO HIM AGAINST THE S ALE CONSIDERATION OF THE SAID PLOT AS PER THE TERMS OF THE SA LE AGREEMENT DATED 18-10-1991 AND 14-04-1992. ACCORDING LY, THE AO OF SHRI TAYYAB HABIB CHOTANI PASSED ON THE INFORMATION TO THE AO OF THE ASSESSEE. ON THE BASIS OF TH E INFORMATION RECEIVED, THE AO OF THE ASSESSEE ISSUED A NOT ICE U/S.158BD ON 18-11-2003 TO FILE RETURN WITHIN 15 DAYS OF T HE SAID NOTICE. THE ASSESSEE, IN RESPONSE TO THE NOTICE ISSU ED U/S.158BD, FILED HIS RETURN OF INCOME ON 07-01-2004 DECLARING THE TOTAL UNDISCLOSED INCOME OF NIL. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO ANALYSED THE SEIZED DOCUMENT BUNDLE NO.1, PAGE NO.18 WHIC H IS A STATEMENT OF ACCOUNT SHOWING THE ACCOUNT OF SHRI TA YYAB HABIB CHOTANI. THE AO ASKED THE ASSESSEE TO EXPLAIN THE TRANSACTIONS NOTED ON THE SAID SEIZED DOCUMENT. INITIALLY , THE 3 ITA NO.604/PN/2010 ASSESSEE STATED THAT THE SEIZED DOCUMENTS ARE NOT RE LATED TO HIM AT ALL. SUBSEQUENTLY, THE AO ISSUED ANOTHER LETTER TO THE ASSESSEE TO EXPLAIN THE TRANSACTIONS AS HIS NAME AND CO NTENTS OF THE SALE AGREEMENT MADE BETWEEN THE ASSESSEE AND S HRI TAYYAB HABIB CHOTANI ARE REFLECTED IN THE SAID DOCUMENT. THE ASSESSEE THEREAFTER EXPLAINED THAT THE SAID DOCUMENT HA S TWO PARTS. THE SECOND PART OF THE SAID DOCUMENT REFLECT THE PAYMENT MADE BY HIM TO SHRI TAYYAB HABIB CHOTANI BY CHEQUE OF RS.39,28,504/-. HOWEVER, HE DENIED OTHER NOTINGS MADE IN THE SAID SEIZED DOCUMENT SAYING THAT THEY ARE NOT RELAT ED TO HIM. THE ASSESSEE ENCLOSED THE ACCOUNT EXTRACT OF SHRI T AYYAB HABIB CHOTANI IN HIS BOOKS OF ACCOUNT SHOWING OUTSTANDING BALANCE OF RS.33,90,491.46 PAYABLE BY HIM TO SHRI TAYYAB HABIB CHOTANI ON 26-02-2004. SINCE THE ASSESSEE INITIALLY STATED THAT THE PAPER DOES NOT BELONG TO HIM AND SUBS EQUENTLY ADMITTED ONLY A PART OF THE TRANSACTIONS REFLECTED ON TH E SAID SEIZED PAPER, I.E. ONLY THE CHEQUE PORTION, THE AO IN ORDER TO JUSTIFY THE CORRECTNESS OF THE CLAIM OF THE ASSESSEE SUM MONED SHRI TAYYAB HABIB CHOTANI AND RECORDED HIS STATEMENT U/S.131 OF THE I.T. ACT. HE ALSO ISSUED A LETTER SUMMONING THE ASSESSEE ASKING HIM TO APPEAR BEFORE HIM AND EXPLAIN ON THE ADMISSION MADE BY SHRI TAYYAB HABIB CHOTANI WHEREIN HE HA S CATEGORICALLY ADMITTED THE FOLLOWING FACTS : (I) THE SEIZED DOCUMENT, I.E. PART NO.6, BUNDLE NO. 1, PAGE NO.18 SEZIED FROM THE RESIDENCE OF SHRI TAYYAB H. CHO TANI DURING SEARCH AND SEIZURE OPERATIONS FROM THE ASSESSEE ON VARIOUS DATES IN RESPECT OF SALE CONSIDERATION OF THE PROPERTY AT S. NO.208, YERAWADA SOLD BY HIM TO THE ASSESSEE AS PER AGREEMENT DAT ED 18- 10.-991 AND 14-04-1992. (II) THAT THE SAID PAPER WAS MADE ON THE ASSESSEES COMPUT ER AND GIVEN TO SHRI TAYYAB H. CHOTANI. 4 ITA NO.604/PN/2010 (III) HE RECEIVED THE PAYMENTS OF RS.50,39,695/-, I.E.(RS.53,79,695/- - RS.35,000/-) IN CASH FROM THE ASSESSEE AS MENTIONED IN THE SAID PAPER. SINCE THERE ARE DUPLIC ATION OF TWO ENTRIES OF RS.3 LACS AND RS.50,000/- CASH WELL AS BY CHE QUE PAYMENTS. (IV) HE ALSO RECEIVED THE PAYMENTS OF RS.40,29,506/- B Y CHEQUE FROM THE ASSESSEE AS ALSO MENTIONED ON THE SAID PAP ER. (V) THE CASH PAYMENTS WERE MADE BY THE ASSESSEE FROM SEPTEMBER, 1992 TO DECEMBER, 1993, I.E. 16 MONTHS @ RS.25,000/- PER MONTH WORKS OUT TO RS.4 LACS AND THER EAFTER THE ASSESSEE PAID HIM RS.25,000/- EVERY MONTH AS PER THE AGRE EMENT DATED 18-10-1991 AS APPEARING ON THE SAID PAPER. (VI) THE SAID CASH WAS RECEIVED FROM THE ASSESSEE AT VARIO US OCCASIONS DIRECTLY OR THROUGH THE ASSESSES EMPLOYEES SUCH A S MR. NANDA, MR. SAGAR ETC. ON SOME OCCASIONS. (VII) SOMETIMES THE CASH WAS PAID BY THE ASSESSEE TO OTHER PARTIES ALSO ON BEHALF OF SHRI TAYYAB H. CHOTANI WHIC H ARE ALSO APPEARING ON THE SAID PAPER. (VIII) THAT HE HAS STILL TO RECEIVE RS.35 TO 40 LACS WH ICH IS OVER AND ABOVE THE PAYMENTS ALREADY MADE BY THE ASSESSEE WHIC H ARE REFLECTED ON THE SAID SEIZED DOCUMENT, I.E. PARTY NO. 6, BUNDLE NO.1, PAGE NO.18. THUS, HE ACCEPTED THAT HE HAS RECE IVED RS.50,39,695/- IN CASH AND RS.40,29,508/- BY CHEQUES FR OM THE ASSESSEE. 5. HOWEVER, THE ASSESSEE DID NOT ATTEND BEFORE THE AO BUT SUBMITTED THAT SHRI TAYYAB HABIB CHOTANI DOES NOT HAVE ANY CREDIBILITY AND HIS STATEMENT WAS RECORDED UNDER THREAT AND DURESS. THE AO HAS NOT TRIED TO FIND OUT THE PROPERTIES OF SHRI TAYYAB HABIB CHOTANI TO ATTACH AGAINST THE TAX LIABILITY. TH E AO HAS NO RIGHT OR AUTHORITY TO MAKE ANY QUERIES TO HIM PERTAINING TO ANY YEAR BEFORE ASSESSMENT YEAR 1998-99 ACCORDING TO SECTION 158B OF THE I.T. ACT. NO WITNESS AT TESTED STATEMENT BY SHRI TAYYAB HABIB CHOTANI. THE ASSESSEE AL SO WANTED TO CROSS EXAMINE SHRI TAYYAB HABIB CHOTANI. 5.1 SUBSEQUENTLY, THE AO PROVIDED AN OPPORTUNITY TO CRO SS EXAMINE SHRI TAYYAB HABIB CHOTANI AND ACCORDINGLY ALLOWED THE ASSESSEE TO CROSS EXAMINE SHRI TAYYAB HABIB CHOTAN I FOR 5 ITA NO.604/PN/2010 WHICH THE DATE WAS FIXED FOR 21-11-2005 AT 10.30 A.M. ALTHOUGH SHRI TAYYAB HABIB CHOTANI APPEARED BEFORE THE A O AND WAS KEPT WAITING TILL EVENING HOWEVER THE ASSESSEE DID NOT TURN UP BUT A LETTER WAS FILED ON BEHALF OF THE ASSESSEE A SKING FOR FURTHER DATE FOR CROSS EXAMINATION. IT WAS ALSO MADE A CONDITION THAT THE DEPARTMENT SHOULD ISSUE SUMMON TO OT HER PERSONS NAMED BY HIM FOR CROSS EXAMINATION. IN VIEW OF T HE ABOVE TACTICS ADOPTED BY THE ASSESSEE, THE AO HELD TH AT THE ASSESSEE IS NOT COOPERATING IN PROVIDING THE INFORMATION BE ING ASKED FOR AND HE IS SHIFTING HIS STAND ON THE ISSUE. IN R ESPECT OF FURNISHING THE DESIRED INFORMATION COMPLETELY AND CORRECT LY THE ASSESSEE IS TRYING TO COMPLICATE THE MATTER BY ASKIN G EXAMINATION OF PERSONS TO WHOM DEPARTMENT HAS NEITHER EXAMINED NOR COLLECTED ANY INFORMATION. THE ASSESSEE HAS ALSO MADE A COMPLAINT BEFORE THE CONCERNED CIT FOR SHIFTING OF H IS CASE FROM THE PRESENT AO TO SOME OTHER PERSON WHICH W AS REJECTED BY THE CIT. IN VIEW OF THE ABOVE AND IN VIEW O F THE REASONINGS GIVEN AT PARA 7 OF THE ASSESSMENT ORDER THE AO HELD THAT CASH PAYMENT MADE BY THE ASSESSEE TO THE TUNE OF RS.50,39,695/- IS THE UNDISCLOSED INCOME OF THE ASSESSEE FO R THE BLOCK PERIOD 1990-91 TO 2000-01. 6. IN APPEAL THE ASSESSEE CHALLENGED THE VALIDITY OF THE NOTICE ISSUED U/S.158BD AS WELL AS THE ADDITION MADE BY TH E AO TO THE TUNE OF RS.50,39,695/- FOR THE BLOCK PERIOD. HOWEVER, THE CIT(A) ALSO REJECTED THE ARGUMENTS ADVANC ED BY THE ASSESSEE AND UPHELD THE ACTION OF THE AO BY OBSER VING AS UNDER : 6 ITA NO.604/PN/2010 11. I HAVE CONSIDERED THE FACTS OF THE CASE AND THE M ATERIAL AVAILABLE ON RECORD. IN RESPECT OF GROUND NO.1, IN T HE DISCUSSION MADE ABOVE AT PARAS 3 TO 5, IT WAS NOTICED THAT SHRI TAYYAB CHHOTANI, FROM WHOM THE DOCUMENT WAS SEIZED DURING SEA RCH, HAD CONFIRMED TO HAVE RECEIVED PAYMENTS IN CASH FOR SA LE OF LAND TO THE APPELLANT DURING THIS PERIOD, AMOUNTING TO RS. 50,39,595/-. SHRI TAYYAB CHHOTANI HAS ALSO CONFIRMED THE SAME IN TH E STATEMENT RECORDED U/S.131 ON 9.11.2005 BY THE ASSESSIN G OFFICER. THE CONTENTION OF THE APPELLANT THAT THE ST ATEMENT WAS RECORDED UNDER THREAT AND COERCION CANNOT BE ACCEPT ED, SINCE IT IS NOT ESTABLISHED FROM THE FACTS AVAILABLE ON RECORD, IN PARTICULAR THE STATEMENT IN WHICH IT IS CATEGORICALLY MENTIONED AT THE END AS UNDER : 'WHATEVER STATED ABOVE IS TRUE AND CORRECT TO THE BES T OF MY KNOW/EDGE AND BELIEF. THE ABOVE STATEMENT IS GIVEN WITHOUT ANY COERCION, THREAT, PRESSURE ETC.' IT IS ALSO NOTICED THAT THE AMOUNT MENTIONED IN THE S EIZED DOCUMENT FOR PAYMENT BY CHEQUE IS ALSO BEING CONFIRME D BY THE APPELLANT. IT IS FURTHER NOTICED THAT THE AMOUNT OF RS.50,74,695/- WAS CONSIDERED FOR ADDITION IN THE CASE OF SHRI TAYYA B CHHOTANI IN HIS BLOCK ASSESSMENT ORDER DATED 28.2.2003 FOR THE SA ME PERIOD, OUT OF WHICH THE SUM OF AMOUNTS PAID BY THE A PPELLANT IN INSTALMENTS OF RS.25,000/- EACH FOR THE PERIOD SEPTEMB ER, 1992 TO JUNE 1997 WHICH WORKED OUT TO RS.14,50,000/- WAS R EDUCED; AND A NET ADDITION OF RS.36,24,695/- WAS MADE AS UNDISC LOSED INCOME IN THE CASE OF SHRI TAYYAB CHHOTANI. SUBSEQUEN TLY, IT IS SEEN FROM THE APPELLATE ORDER PASSED BY THE CIT(A)-I, PUNE DATED 13.12.2004, THAT SHRI TAYYAB CHHOTANI HAS ACCEPTED THIS ADDITION OF RS.36,24,695/-. THEREFORE, CONSIDERING THE DISCUSSION MADE ABOVE AT PARAS 4 TO 6 OF THIS ORDER, THE FACTUAL MATR IX REGARDING THE TRANSACTIONS RECORDED ON THE SEIZED DOCUMENTS, AND THE DISCUSSION MADE IN THE ASSESSMENT ORDER FROM PARA 4 ONWARD S, THE TREATMENT OF THIS AMOUNT OF RS.50,39,695/- BEING CASH PAYMENT FOR PURCHASE OF LAND AS UNDISCLOSED INCOME IS LI ABLE TO BE UPHELD. GROUND OF APPEAL NO.1 IS THEREFORE, DISMISSE D. 3. IN GROUND NO.2 OF APPEAL, THE PURCHASE CONSIDERATI ON OF THE LAND OF RS.76,00,000/- MENTIONED IN THE APPROPRI ATE AUTHORITYS CERTIFICATE U/S.269UL(3) OF THE ACT, HAS B EEN CITED, WHICH IS BASED ON THE AGREEMENT DATED 18.10.1991. HO WEVER, THIS CERTIFICATE OF THE APPROPRIATE AUTHORITY, IN WH ICH NO OBJECTION HAS BEEN GIVEN FOR TRANSFER OF THE PROPERT Y BASED ON THE APPARENT CONSIDERATION MENTIONED IN THE AGREEMENT, I S IN A DIFFERENT CONTEXT ALTOGETHER. IT IS CLEARLY MENTION ED IN THIS CERTIFICATE DATED 24.12.1991 SUBMITTED BY THE APPELL ANT IN THE APPELLATE PROCEEDINGS AS UNDER : THIS NO OBJECTION CERTIFICATE IS ISSUED WITHOUT PREJUD ICE TO ANY INCOME TAX PROCEEDINGS PENDING OR CONTEMPLATED UNDER ANY OTHER PROVISIONS OF THE I.T. ACT, 1961. THEREFORE, THIS NO OBJECTION CERTIFICATE WAS ISSUED IN THE CONTEXT OF THAT PARTICULAR SECTION ONLY, AND HAS GOT NOTHING TO DO WITH THE SUBSEQUENT BLOCK ASSESSMENT PROCEEDINGS UNDER CHAPTER XIVB 7 ITA NO.604/PN/2010 INITIATED AS A CONSEQUENCE OF SEARCH HAVING TAKEN PLAC E, IN WHICH DOCUMENTS SHOWING CASH TRANSACTIONS PERTAINING TO SALE OF THIS PARTICULAR LAND WERE SEIZED. THEREFORE, THIS CONTENTI ON OF THE APPELLANT IS NOT FOUND TO BE TENABLE IN LAW AND GROU ND NO.2 IS LIABLE TO BE DISMISSED. 14. SO FAR AS GROUND NO.3 IS CONCERNED, WHICH IS REGAR DING REASONABLE OPPORTUNITY TO CROSS EXAMINE SHRI TAYYAB CH HOTANI, THE OPPORTUNITY OF CROSS EXAMINATION WAS GRANTED BUT NOT AVAILED BY THE APPELLANT; FOR WHICH THE ASSESSING OFFIC ER'S FINDING ON PAGE 5 AND 6 OF THE ASSESSMENT ORDER HAS BEEN REPRODU CED ABOVE AT PARA '7.2.HAVING GONE THROUGH THE OBSERVATI ONS OF THE ASSESSING OFFICER, I DO NOT FIND ANY SUBSTANCE IN THE APP ELLANT'S CLAIM THAT NO OPPORTUNITY WAS GRANTED TO CROSS EXAMINE SHRI TAYYAB CHHOTANI AND THEREFORE, THIS GROUND OF APPEAL IS ALSO LIABLE TO BE DISMISSED. 15. SO FAR AS GROUND OF APPEAL NO.4 IS CONCERNED, IT RELATES TO ISSUE OF NOTICE U/S.158BD ON 18.11.2003, STATING IT TO BE MUCH DELAYED CONSIDERING THE DATE OF SEARCH IN THE CASE OF SHRI TAYYAB CHHOTANI BEING 14.2.2001. HOWEVER, THIS CONTENTION O F THE APPELLANT IS NOT FOUND TO BE TENABLE IN LAW, SINCE TH ERE IS NO TIME LIMIT PROVIDED FOR ISSUE - OF NOTICE U/S.158BD. THEREF ORE, THIS GROUND OF APPEAL IS ALSO NOT TENABLE IN LAW AND LIABL E TO BE DISMISSED. 16. AS ALREADY DISCUSSED ABOVE, IN THE WRITTEN SUBMISSIO N, ISSUE OF SATISFACTION U/S.158BD HAS ALSO BEEN RAISED BUT NO SUCH GROUND OF APPEAL HAS BEEN RAISED. THEREFORE, THIS CONT ENTION IS NOT FOUND TO BE ACCEPTABLE. SIMILARLY, IN THE EARLI ER SUBMISSION AND ALSO SUBMISSION DATED 12.2.2010 IT IS CONTENDED THAT NOTICE U/S.143(2) WAS ISSUED BEYOND A PERIOD OF ONE YEAR FROM THE DATE OF FILING OF RETURN. AGAIN NO SUCH GROUND OF APPEAL WAS RAISED BY THE APPELLANT NOR ANY ADDITIONAL GROUND HAS BEEN FIL ED. HOWEVER, IT IS NOTICED THAT THE THEN CIT(A), VIDE ORDER SHEET ENTRY HAD ASKED THE ASSESSING OFFICER TO CLARIFY THIS FACT OF ISSUE O F NOTICE U/S.143(2) WITHIN THE PRESCRIBED TIME LIMIT. IN RESPON SE TO THIS, THE DCIT, CIR.2, PUNE, BY HIS LETTER DATED 1.8.2006, FORWARDED BY THE ADDI.CIT, RANGE-2, PUNE VIDE LETTER DATED 3.8.2 006, HAS STATED AS UNDER: 'ON VERIFICATION OF CASE RECORDS, IT IS SEEN THAT THE A SSESSEE HAD FILED BLOCK RETURN ON 7. 1.2004, WHEREAS FIRST NO TICE U/S. 143(2) WAS ISSUED ON 12.7.2004, WHICH WAS DULY SERVED ON THE ASSESSEE BY RPAD ON 21.7.2004 ON THE FOLLOWING ADDRESS (WHICH IS THE ADDRESS GIVEN IN THE BLO CK RETURN) : M/S. SIDDHARTH BUILDERS A-1, SIDDHARTH COURT, SIDDHARTH PALACE, PUNE-1 A COPY OF THE NOTICE U/S.143(2) DATED 12.7.2004 ALON G WITH POSTAL ACKNOWLEDGEMENT IS ENCLOSED HEREWITH FOR READY REFERENCE. 8 ITA NO.604/PN/2010 IN VIEW OF THE ABOVE FACTS, IT IS SUBMITTED THAT NOTIC E U/S.143(2) WAS ISSUED AND SERVED WITHIN THE STIPULATED TIME. THUS, THE GROUND RAISED BY THE ASSESSEE ON THE TIM E BARRING ISSUE IS NOT CORRECT. ALONG WITH THIS REPORT, THE ASSESSING OFFICER ALSO SENT TH E XEROX COPY OF THE NOTICE AS WELL AS POSTAL ACKNOWLEDGEMENT W HICH HAS BEEN DULY STAMPED BY MIS. SIDDHARTH BUILDERS, THE APPE LLANT'S PROPRIETARY CONCERN. COPY OF THIS REPORT ALONG WITH THE ENCLOSURE WAS DULY HANDED OVER TO THE APPELLANT'S REPRESENTATIV E ON 22.9.2006. IN VIEW OF THIS FACT THIS OBJECTION OF THE APPELLANT IS ALSO LIABLE TO BE REJECTED. 7. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : THE FOLLOWING GROUNDS ARE TAKEN WITHOUT PREJUDICE T O EACH OTHER ON FACTS AND IN LAW, 1. THE ASST. ORDER PASSED U/S.158BD R.W.S.158BC IS BARRED BY LIMITATION SINCE THE NOTICE ISSUED U/S.158BD WAS TIME BA RRED. 2. THE ASST. ORDER PASSED U/S.158BD R.W.S.158BC IS NULL AN D VOID ON THE GROUND THAT NO PROPER SATISFACTION HAS BEE N RECORDED AS REQUIRED BY LAW. 3] THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDI TION MADE OF RS.50,39,695/- ON THE GROUND THAT THE ASSESSEE HAD M ADE UNACCOUNTED PAYMENTS TO SHRI TAYYAB CHHOTANI FOR PUR CHASE OF LAND WITHOUT APPRECIATING THAT THE ADDITION WAS NOT WARRANTED AT ALL. 4] THE LEARNED CIT(A) ERRED IN HOLDING THAT- A. THE ASSESSEE HAD MADE UNACCOUNTED PAYMENTS TO SHRI TAYYAB CHHOTANI FOR PURCHASE OF LAND. B. SHRI TAYYAB CHHOTANI HAD ALSO ACCEPTED RECEIPT OF THE SAID AMOUNT FROM THE ASSESSEE AND THE DOCUMENT SEIZED FROM SH RI CHHOTANI CLEARLY INDICATED THAT THE ASSESSEE HAD MADE T HE PAYMENT FOR PURCHASE OF LAND. C. PROPER OPPORTUNITY OF CROSS EXAMINATION OF SHRI CH HOTANI WAS PROVIDED TO THE ASSESSEE AND HENCE, THE ADDITION WAS MADE AFTER FOLLOWING THE PRINCIPLES OF NATURAL JUSTICE. 5] THE LEARNED CIT(A) FAILED TO APPRECIATE THAT TH E ASSESSEE HAD NOT MADE ANY UNACCOUNTED PAYMENT TO SHRI TAYYAB CHHOTANI FOR PURCHASE OF LAND AND HENCE, THE QUESTION OF MAKI NG ANY ADDITION OF RS.50,39,695/- SIMPLY DOES NOT ARISE. 9 ITA NO.604/PN/2010 6] THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED TH AT- A. THE ADDITION IS MADE SIMPLY ON PRESUMPTIONS AND SURMISES WITHOUT ANY CONCRETE EVIDENCE THAT THE ASSESSEE H AD MADE THE SAID UNACCOUNTED PAYMENT TO SHRI CHHOTANI. B. THE LOOSE PAPER WAS FOUND WITH SHRI CHHOTANI AND H ENCE, THE PRESUMPTION U/S 132( 4A) WAS NOT APPLICABLE IN THE CASE OF THE ASSESSEE AND ACCORDINGLY, THERE WAS NO REASON TO MAKE THE ADDITION ON THE BASIS OF THE SAID LOOSE PAPER. C. SIMPLY BECAUSE SHRI CHHOTANI HAD ACCEPTED THE REC EIPT OF THE AMOUNT DID NOT INDICATE THAT THE ASSESSEE HAD ACTUA LLY MADE THE PAYMENT AND HENCE, THE ADDITION MADE ON THE BAS IS OF THE STATEMENT OF SHRI CHHOTANI WAS NOT JUSTIFIED. D. NO PROPER OPPORTUNITY OF CROSS EXAMINATION WAS GRAN TED TO THE ASSESSEE AND THEREFORE, THE ADDITION MADE IS NOT JUSTIFIED AT ALL. 7] THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE A DDITION WITHOUT APPRECIATING THE CORRECT FACTS OF THE CASE. 8] THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 8. THE ASSESSEE HAS ALSO TAKEN THE FOLLOWING ADDITIONAL GROUND : ON FACTS AND IN LAW, THE APPELLANT SUBMITTED THAT THE ASST. COMPLETED U/S.15 8BD R.W.S.158BC IS BAD IN LAW ON THE GROUND THAT THE PROV ISIONS OF SECTION 158BD WERE NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE AND THEREFORE, THE NOTICE ISSUE DU/S.158BD AND THE CON SEQUENTIAL ASSESSMENT COMPLETED IS INVALID IN LAW. 9. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ABOVE GROUND IS A LEGAL ONE AND NO FRESH FACTS ARE NECES SARY FOR VERIFICATION, THEREFORE, THE LEGAL GROUND SHOULD BE ADMITTED. 10. AFTER HEARING BOTH THE SIDES AND IN VIEW OF THE DECISIO NS OF HONBLE SUPREME COURT IN THE CASE OF NTPC LTD. REPOR TED IN 229 ITR 383, JUTE CORPORATION OF INDIA LTD. REPORTED IN 1 87 ITR 688 AND THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF AHMEDABAD ELECTRICITY COMPANY REPORTED IN 199 ITR 10 ITA NO.604/PN/2010 351 THE ADDITIONAL GROUND RAISED BY THE ASSESSEE BEING LE GAL IN NATURE IS ADMITTED FOR ADJUDICATION. 11. SO FAR AS THE GROUND OF APPEAL NO.1 IS CONCERNED TH E LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ABOVE GROU ND IS DECIDED AGAINST THE ASSESSEE BY THE HONBLE SUPREME CO URT IN THE CASE OF CIT VS. CALCUTTA KNITWEARS REPORTED IN 362 ITR 67. IN VIEW OF THE ABOVE SUBMISSION BY THE LD. COUNSEL FOR TH E ASSESSEE GROUND OF APPEAL NO.1 IS DISMISSED. 12. SO FAR AS THE GROUND OF APPEAL NO. 2 AS WELL AS ADDITIO NAL GROUND IS CONCERNED THEY RELATE TO THE VALIDITY OF 158BD PROCEEDINGS. THE LD. COUNSEL FOR THE ASSESSEE AT THE OU TSET DREW THE ATTENTION OF THE BENCH TO THE SATISFACTION NOTE OF THE ACIT, CENTRAL CIRCLE-1(1), PUNE WHO IS THE AO OF SHRI TAYYAB HABIB CHOTANI TO THE ACIT, CIRCLE-2, PUNE WHO IS THE AO OF THE PRESENT ASSESSEE AND WHICH READS AS UNDER : NO.PN/ACIT/CEN.CIR.1(1)/CHOTANI/2002-03 OFFICE OF THE ASST. COMMISSIONER OF INCOME-TAX, CENT.CIT.1(1), PUNE DT.31.3.2003 TO THE ASST. COMMISSIONER OF INCOME-TAX, CIR.2, PUNE. SIR, SUB : ACTION UNDER SEC.158BD/148 OF THE INCOME-TAX ACT, 1961 INFORMATION REG. DURING THE COURSE OF BLOCK ASSESSMENT PROCEEDINGS IN THE CASE OF SHRI TAYYAB H. CHOTANI, AT BUNGALOW NO.13, SIDDHART H ESTATE , S.NO.208, YERVADA, PUNE, IT IS NOTICED THAT SHRI SHI RISH C. KARIA, HAVING HIS RESIDENCE AT SIDDHARTH BUILDERS, A-1, SIDDH ARTH COURT, SIDDHARTH PATH, PUNE-1, HAS PURCHASED THE PROPERTY AT 208, YERWADA, PUNE FROM SHRI TAYYAB CHOTANI. A COPY OF THE AGREEMENT FOR SUCH TRANSACTION MADE ON 18.10.1991 IS E NCLOSED HEREWITH. THE AGREEMENT IS FOR THE CONSIDERATION OF RS.76,00,000/-. HOWEVER, DURING THE SEARCH, A PAPER SEIZED AT 11 ITA NO.604/PN/2010 SR.NO.18, BUNDLE NO.1, SHOWS THE PAYMENT OF RS.87,19,2 01.54 INCLUDING CASH AS WELL AS CHEQUE. 2. THE INFORMATION COVERED IN THE CASE IS PASSED ON TO YOU FOR NECESSARY ACTION IN THE CASE OF SHRI SHIRISH C. KARIA W HO IS ASSESSED IN YOUR JURISDICTION. YOURS FAITHFULLY, SD/- (K.N. BORA) ASST, COMMISSIONER OF INCOME-TAX, (C), CIRCLE-1(1), PUNE ENCL A/A. COPY SUBMITTED TO : 1. THE ADDL. COMMISSIONER OF INCOME-TAX, RANGE-1, PUNE F OR KIND INFORMATION. 2. THE ADDL. COMMISSIONER OF INCOME-TAX, RANGE-2, PUNE F OR KIND INFORMATION. 13. THE LD. COUNSEL FOR THE ASSESSEE DREW THE ATTENTION OF THE BENCH TO PAGE 8 OF THE PAPER BOOK WHICH IS THE SEIZ ED DOCUMENT FROM THE RESIDENCE OF SHRI TAYYAB HABIB CHOTANI WHEREIN THE CASH PAYMENTS MADE BY THE ASSESSEE TO SH RI TAYYAB HABIB CHOTANI ARE RECORDED. REFERRING TO THE SAID PAGE THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE WOR D HHS HAS NOT BEEN DECIPHERED BY THE REVENUE. THE WO RD SCK HOWEVER, RELATES TO THE ASSESSEE. HE SUBMITTED THAT THE CHEQUE AMOUNTS MENTIONED IN THE SAID PAPER TALLY WITH T HE CHEQUES GIVEN BY THE ASSESSEE. HOWEVER, THE CASH PAYM ENTS ARE DENIED BY THE ASSESSEE. 14. SO FAR AS THE NOTICE ISSUED U/S.158BD IS CONCERNED H E SUBMITTED THAT THE COPY OF SATISFACTION NOTE SHOWS THAT THE AO OF SHRI TAYYAB HABIB CHOTANI HAS WRITTEN THE SATISFACTION N OTE AND SENT IT TO THE AO OF THE ASSESSEE. REFERRING TO THE PROVISIONS OF SECTION 158BD HE DREW THE ATTENTION OF THE BENCH TO THE PROVISIONS OF SECTION 158BD WHICH READS AS UNDER : 12 ITA NO.604/PN/2010 UNDISCLOSED INCOME OF ANY OTHER PERSON : 158BD. WHERE THE ASSESSING OFFICER IS SATISFIED THAT ANY UNDISCLOSED INCOME BELONGS TO ANY PERSON, OTHER THAN TH E PERSON WITH RESPECT TO WHOM SEARCH WAS MADE UNDER SECTION 132 OR WHOSE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR ANY ASSETS WERE REQUISITIONED UNDER SECTION 132A, THEN, THE BOOKS OF A CCOUNT, OTHER DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTIO N OVER SUCH OTHER PERSON AND THAT ASSESSING OFFICER SHALL PROCEED [UN DER SECTION 158BC] AGAINST SUCH OTHER PERSON AND THE PROVISI ONS OF THIS CHAPTER SHALL APPLY ACCORDINGLY. HE SUBMITTED THAT A PLAIN READING OF THE ABOVE SECTION SH OWS THAT FOR ISSUE OF NOTICE U/S.158BD THE AO OF SHRI TAYYAB HABIB CHOTANI SHOULD BE SATISFIED THAT THERE IS UNDISCLOSED INCOME OF SHRI SHIRISH C. KARIA RECORDED IN THE SEIZED DOCUMENTS. THE AO OF SHRI TAYYAB HABIB CHOTANI SHOULD THEREAFTER TRANSFER THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED BELONGIN G TO SHRI SHIRISH C. KARIA TO THE AO OF SHRI SHIRISH C. KARIA. SI NCE THE PAPER IN THE INSTANT CASE WAS FOUND FROM THE RESIDEN CE OF SHRI TAYYAB HABIB CHOTANI THE AO COULD HAVE ISSUED NOTICE U/S.158BD HAD THE INCOME DID NOT BELONG TO SHRI TAYYAB HABIB CHOTANI AND THE SAME BELONGED TO THE ASSESSEE. THE AO SHOULD HAVE TRANSFERRED THE DOCUMENT ALSO TO THE AO OF SHRI TAYYAB HABIB CHOTANI. HOWEVER, THEY HAVE NOT DONE SO. REFERRING TO THE SATISFACTION NOTE, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AO OF SHRI TAYYAB HABIB CHO TANI IS NOT SURE AS TO WHETHER THE NOTICE HAS TO BE ISSUED IN THE CASE OF SHRI SHIRISH C. KARIA U/S.158BD OR U/S.148. HE SUBMITTED THAT IN THE PRESENT CASE THE NOTICE COULD HAV E BEEN ISSUED ONLY U/S.148 AND NOT U/S.158BD SINCE THE SEIZED P APER INDICATES THE UNDISCLOSED INCOME OF SHRI TAYYAB HABIB 13 ITA NO.604/PN/2010 CHOTANI. HE ACCORDINGLY SUBMITTED THAT THE ENTIRE 158BD PROCEEDINGS SHOULD BE HELD AS VOID AB-INITIO. 15. SO FAR AS THE MERIT OF THE CASE IS CONCERNED, THE LD . COUNSEL FOR THE ASSESSEE REFERRED TO PAGE 8 OF THE PAPE R BOOK AND SUBMITTED THAT THE CHEQUE PAYMENTS SHOWN IN THE S EIZED PAPER TALLIES WITH THE CHEQUE AMOUNT PAID BY THE ASSESSE E. REFERRING TO THE STATEMENT OF SHRI TAYYAB HABIB CHOTANI RECORDED ON OATH IN RESPONSE TO SUMMON U/S.131 OF THE ACT, A COPY OF WHICH IS PLACED AT PAGES 11 TO 17 OF THE PAPER, T HE LD. COUNSEL FOR THE ASSESSEE DREW THE ATTENTION OF THE BENC H TO PAGE 14 OF THE PAPER BOOK AND SUBMITTED THAT AN AMOUN T OF RS.10,40,000/- HAS BEEN SHOWN AS ADJUSTED AGAINST COST OF BUNGALOW NO.13 IN THE PROPOSED SIDDHARTH ESTATE. REFERRI NG TO QUESTION NO.8 WHERE SHRI TAYYAB HABIB CHOTANI WAS ASK ED REGARDING THE RECEIPT OF RS.35 TO 40 LAKHS TOWARDS THE S ALE OF LAND AT SURVEY NO.208, YERAWADA FROM SHRI SHIRISH C. KARIA THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE FOLLOWING REPLY : A.NO.8 I HAVE GIVEN THIS STATEMENT TO THE INCOME TAX AUTHORITIES ON 30/3/2001. THE AMOUNT OF RS.35 TO 40 LAKHS WAS COMPUTED ON APPROX. BASIS AS FOLLOWS : RS.10,40,000/- ADJUSTED TOWARDS BUNGLOW AMOUNT NOT INITIALLY AGREED UPON. RS.3,00,000/- DOUBLE ENTRIES IN CASH AND CHEQUE MENTIONED IN Q.6 ABOVE. RS.50,000/- DOUBLE ENTRIES IN CASH AND CHEQUE MENTIONE D IN Q.6 ABOVE. 16. HE ACCORDINGLY SUBMITTED THAT AN AMOUNT OF RS.10,40,000/- WHICH WAS ADJUSTED TOWARDS THE BUNGALOW 14 ITA NO.604/PN/2010 AMOUNT NOT INITIALLY AGREED UPON SHOULD BE REDUCED FROM THE ADDITION OF RS.50,39,695/-. 17. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER H AND HEAVILY RELIED ON THE ORDER OF THE CIT(A). HE SUBMITTED T HAT SINCE THE PAPER CONTAINING THE CASH PAYMENTS MADE BY T HE ASSESSEE WAS FOUND FROM THE PLACE OF SHRI TAYYAB HABIB CHOTANI DURING THE COURSE OF SEARCH, THE AO OF SHRI TAYY AB HABIB CHOTANI HAD FORWARDED SATISFACTION NOTE TO THE AO O F SHRI SHIRISH C. KARIA. THEREFORE, THE 158BD NOTICE ISSUED BY THE AO OF SHRI SHIRISH C. KARIA IS PERFECTLY VALID. 18. SO FAR AS THE MERIT OF THE CASE IS CONCERNED HE SUB MITTED THAT THE LD.CIT(A) HAS GIVEN JUSTIFIABLE REASONS FOR SUSTAININ G THE SAME. DESPITE REPEATED OPPORTUNITIES GIVEN BY THE A O THE ASSESSEE COULD NOT CONCLUSIVELY PROVE THE ENTRIES IN THE SEIZED DOCUMENT AS EXPLAINED OR NOT BELONGING TO HIM. HE HAS ALS O NOT AVAILED THE OPPORTUNITY OF CROSS EXAMINING SHRI TAYYAB HABIB CHOTANI DESPITE SUFFICIENT OPPORTUNITIES GIVEN BY THE A O. HE ACCORDINGLY SUBMITTED THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE ADDITION MADE BY THE AO A ND SUSTAINED BY THE CIT(A) SHOULD BE UPHELD. 19. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOT H THE SIDES, PERUSED THE ORDERS OF THE AO AND CIT(A) AND T HE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. THE FIR ST ISSUE TO BE DECIDED IN THE IMPUGNED GROUNDS IS REGARDING THE VALIDITY OF 158BD PROCEEDINGS. IT IS THE CASE OF THE LD. COUNSEL FOR THE ASSESSEE THAT A NOTICE U/S.158BD CAN BE 15 ITA NO.604/PN/2010 ISSUED IF THE AO OF THE SEARCHED PERSON IS SATISFIED THAT A NY UNDISCLOSED INCOME BELONGS TO ANY PERSON OTHER THAN THE SEARCHED PERSON, THEN THE BOOKS OF ACCOUNT, OTHER DOCU MENTS OR ASSETS SEIZED OR REQUISITIONED SHALL BE HANDED OVER TO THE AO HAVING JURISDICTION OVER SUCH OTHER PERSON. THE AO THEREAFTER SHALL PROCEED U/S.158BC AGAINST SUCH OTHER PE RSON AND THE PROVISIONS FOR THIS CHAPTER SHALL APPLY ACCORDING LY. HOWEVER, IN THE INSTANT CASE, THE PAPER WAS SEIZED FROM T HE PLACE OF SHRI TAYYAB HABIB CHOTANI DURING THE COURSE OF SEARCH WHICH CONTAIN THE AMOUNTS RECEIVED IN CASH BY HIM . HE HAS ALREADY ADMITTED SUCH CASH AS HIS UNDISCLOSED IN COME, A FACT RECORDED BY THE CIT(A) AND NOT DISPUTED BY THE R EVENUE. FURTHER, THE SATISFACTION NOTE SENT BY THE AO OF SHRI TAY YAB HABIB CHOTANI TO THE AO OF SHIRISH C. KARIS SPEAKS OF ACTION TO BE TAKEN U/S.158BD/148. THEREFORE, WE FIND MERIT IN THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE A O OF THE SEARCHED PERSON HIMSELF IS NOT SURE AS TO UNDER WHIC H PROVISION OF THE ACT, ACTION SHOULD BE TAKEN. IN OUR OPINIO N, SINCE THE PAPER WAS FOUND CONTAINING CASH PAYMENTS AND CHEQUE PAYMENTS RECEIVED BY SHRI TAYYAB HABIB CHOTANI FR OM SHRI SHIRISH C. KARIA AND SHRI TAYYAB HABIB CHOTANI HAS ADMITTED SUCH UNACCOUNTED CASH AS HIS UNDISCLOSED INCOME , THEREFORE, THERE REMAINS NO UNDISCLOSED INCOME BELONGING TO ANY OTHER PERSON OTHER THAN THE SEARCHED PERSON. UN DER THESE CIRCUMSTANCES, THE PROPER COURSE OF ACTION HERE S HOULD HAVE BEEN NOTICE U/S.148 AND NOT NOTICE U/S.158BD SINCE THE AO OF THE SEARCHED PERSON HIMSELF IS NOT SURE AS TO HOW AND UNDER WHICH PROVISIONS THE NOTICE SHOULD BE ISSUED. 16 ITA NO.604/PN/2010 20. WE FIND THE HONBLE SUPREME COURT IN THE CASE OF MANISH MAHESHWARI VS. ACIT REPORTED IN 289 ITR 348 HAS OBSERVED AS UNDER : 11. THE CONDITION PRECEDENT FOR INVOKING A BLOCK A SSESSMENT IS THAT A SEARCH HAS BEEN CONDUCTED UNDER SECTION 132, OR DOCUMENTS OR ASSETS HAVE BEEN REQUISITIONED UNDER SECTION 132A. THE SAID PROVISION WOULD APPLY IN THE CASE OF ANY PERS ON IN RESPECT OF WHOM SEARCH HAS BEEN CARRIED OUT UNDER SECTI ON 132A OR DOCUMENTS OR ASSETS HAVE BEEN REQUISITIONED UNDER SECT ION 132A. SECTION 158BD, HOWEVER, PROVIDES FOR TAKING RE COURSE TO A BLOCK ASSESSMENT IN TERMS OF SECTION 158BC IN RESPECT OF A NY OTHER PERSON, THE CONDITIONS PRECEDENT WHEREFOR ARE : (I) SATISFACTION MUST BE RECORDED BY THE ASSESSING OFFICER THA T ANY UNDISCLOSED INCOME BELONGS TO ANY PERSON, OTHER THAN TH E PERSON WITH RESPECT TO WHOM SEARCH WAS MADE UNDER SECTION 132 OF THE ACT ; (II) THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED HAD BEEN HANDED OVER TO THE ASSESSING O FFICER HAVING JURISDICTION OVER SUCH OTHER PERSON ; AND (III) THE ASSESSING OFFICER HAS PROCEEDED UNDER SECTION 158BC AGAIN ST SUCH OTHER PERSON. 12. THE CONDITIONS PRECEDENT FOR INVOKING THE PROVISI ONS OF SECTION 158BD, THUS, ARE REQUIRED TO BE SATISFIED BEFOR E THE PROVISIONS OF THE SAID CHAPTER ARE APPLIED IN RELATION TO ANY PERSON OTHER THAN THE PERSON WHOSE PREMISES HAD BEEN SEAR CHED OR WHOSE DOCUMENTS AND OTHER ASSETS HAD BEEN REQUISITION ED UNDER SECTION 132A OF THE ACT. 21. SINCE IN THE INSTANT CASE SHRI TAYYAB HABIB CHOTANI H AS ALREADY ADMITTED SUCH CASH PAYMENTS AS HIS UNDISCLOSED INCOME, THEREFORE, THE PROVISIONS OF SECTION 158BD CANNOT B E APPLIED TO THE CASE OF THE ASSESSEE AND THE PROPER CO URSE OF ACTION SHOULD HAVE BEEN ISSUE OF NOTICE U/S.148. WE THERE FORE FIND MERIT IN THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE NOTICE IN THE INSTANT CASE COULD HAVE BEEN ISSUED ONLY U/S.148 AND NOT U/S.158BD. THEREFORE, THE ADDITIONAL GROUND RAISED BY THE ASSESSEE AS WELL AS GROUN D OF APPEAL NO.2 ARE DECIDED IN FAVOUR OF THE ASSESSEE. 17 ITA NO.604/PN/2010 22. SINCE THE ASSESSEE SUCCEEDS ON THIS LEGAL GROUND, TH E ALTERNATE GROUND OF THE ASSESSEE REGARDING MERIT OF THE CASE IS NOT CONSIDERED BEING ACADEMIC IN NATURE. 23. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PAR TLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29-04-2016. SD/- SD/- ( VIKAS AWASTHY ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE ; DATED : 29 TH APRIL, 2016. & '#)! *! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT(A) - II , PUNE 4. 5. 6. THE CIT-II, PUNE $ ''(, (, / DR, ITAT, B PUNE; - / GUARD FILE. / BY ORDER , // TRUE COPY // // TRUE COPY // // $ ' //TRUEO /0 ' ( / SR. PRIVATE SECRETARY (, / ITAT, PUNE