D.K. ENTERPRISE, MUMBAI V. ASST CIT CEN CIR 15 & 16, MUMBAI

ITA 6086/MUM/2010

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3808 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-05-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 28-01-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 06-08-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B S BISTSR
• Assessee Lawyers: J D MISTRY
• Keywords: Unexplained cash credit; Additional evidence
• Section: 143(3); 68; 28

Judgement Text

INCOME-TAX APPELLATE TRIBUNAL -DBENCH MUMBAI , , BEFORE S/SH.RAJENDRA,ACCOUNTANT MEMBER AND AMIT SHUKLA,JUDICIAL MEMBER ./I.T.A./6086/MUM/2010 , / ASSESSMENT YEAR: 2003-04 D.K. ENTERPRISE,MANGROL MANSION GUNBOW STREET, FORT,MUMBAI-400 001. PAN: AAAFD 7060 K VS. ACIT, CENTRAL CIRCLE 15 & 16 AAYAKAR BHAVAN,MAHARSHI KARVE MARG MUMBAI-400 020. ( /APPELLANT ) ( / RESPONDENT ) REVENUE BY: SHRI B.S. BIST-SR.A.R. ASSESSEE BY: SHRI J.D. MISTRY / DATE OF HEARING: 28.03.2016 / DATE OF PRONOUNCEMENT: 06.05.2016 ,1961 254(1) ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA, AM - CHALLENGING THE ORDER,DTD.24/05/2010 OF THE CIT (A) -23,MUMBAI THE ASSESSEE HAS FILED THE PRESENT APPEAL.ASSESSEE-FIRM,ENGAGED IN THE BUSINES S OF BUILDING CONSTRUCTION, FILED ITS RETURN OF INCOME ON 01/12/2003,DECLARING TOTAL INCOME AT R UPEES NIL.THE ASSESSING OFFICER (AO) COMPLETED THE ASSESSMENT,U/S.143(3) OF THE ACT, ON 14/02/2006, DETERMINING THE INCOME OF THE ASSESSEE AT RS.5.10 CRORES.DURING THE COURSE OF HEARING BEFORE US,THE AUTHORISED REPRESENTATIVE(AR)OF THE ASSESSEE STATED THAT THE A SSESSEE WAS NOT INTERESTED IN PRESSING THE SECOND GROUND OF APPEAL.HENCE,THE SAME STANDS DISMI SSED,AS NOT PRESSED. 2.FIRST GROUND OF APPEAL IS ABOUT ADDITION IN RESPE CT OF UNSECURED LOANS OF RS.50.76 LAKHS. DURING THE ASSESSMENT PROCEEDINGS,THE AO DIRECTED T HE ASSESSEE TO FILE CONFIRMATION OF UNSECURED LOANS AS APPEARING IN THE BALANCE SHEET.V IDE ITS LETTER,DTD.29.12.2005,THE ASSESSEE REQUESTED THE AO TO ISSUE SUMMONS TO THE CREDITORS. ON THE BASIS OF THE ASSESSEES REQUEST SUMMONS WERE ISSUED AS PER THE ADDRESSES GIVEN BY T HE ASSESSEE WHEREIN NO LOAN CONFIRMATION HAD BEEN FILED.TEN OF THE SUMMONS WERE RETURNED BY THE POSTAL AUTHORITIES. THE AO DIRECTED THE ASSESSEE TO FURNISH THE NEW ADDRESS ES AND TO PRODUCE THE PARTIES CONCERNED. HEARING WAS FIXED ON 09.02.2006.HOWEVER,INSTEAD OF PRODUCING THE PARTIES,THE AUTHORIZED REPRESENTATIVE(AR)OF THE ASSESSEE APPEARED ON 02.03 .2006 BEFORE THE AO AND GAVE NEW ADDRESSES OF SIX PARTIES. THERE WAS NO COMPLIANCE T O THE SUMMONS ISSUED AT NEW ADDRESSES EXCEPT BY TWO OF THE SIX PARTIES.THE ASSESSEE WAS G IVEN AN OPPORTUNITY TO FURNISH NEW ADDRESSES,VIDE ORDER SHEET NOTING DATED 03.03.2006 AND THE MATTER WAS ADJOURNED TO 10. 03. 2006.IN THESE CIRCUMSTANCES,THE AO ADDED UNSECURED LOANS,FROM 14 PARTIES,FOR WANT OF CONFIR 6068/10 DKENTERPRISE 2 -MATIONS.THE AO NOTED THAT THE AR OF THE ASSESSEE H AD ADMITTED THAT THE ABOVE LOANS HAVE OTHERWISE BECOME BARRED ON ACCOUNT OF LIMITATION.HE HELD THAT THESE LIABILITIES WERE CARRIED FORWARD YEAR AFTER YEAR IN THE BALANCE SHEET,THAT G ENUINENESS OF THE TRANSACTIONS WAS NEVER COULD THAT IN THE CASE OF AGARWAL MACHINE AND ENGIN EERING STORES OPENING BALANCE OF RS.3, 00,000/-WAS WRITTEN OFF AND WAS OFFERED AS INCOME F OR THE YEAR UNDER CONSIDERATION.AS A RESULT,THE LOAN AMOUNT OF RS.50.76 LAKHS WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE U/S. 68 OF THE ACT AS UNEXPLAINED CASH CREDIT. 3. AGGRIEVED BY THE ORDER OF THE AO THE ASSESSEE PREFE RRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY(FAA).BEFORE HIM,THE ASSESSEE MADE ELABORA TE SUBMISSIONS AND STATED THAT IT HAD FURNISHED THE INFORMATION CALLED FOR BY THE AO,THAT HE HAD MADE ADDITION IN RESPECT OF 14 PARTIES OUT OF WHICH THE AO HAD COMMUNICATED NAMES OF ONLY THE 8 PARTIES IN RESPECT OF WHOM NO SUMMONS COULD BE SERVED,THAT ASSESSEE HAD M ADE ADEQUATE ATTEMPTS TO DISCHARGE IT LIABILITY TO PROVE THE GENUINENESS OF THE LOANS. IT WAS FURTHER ARGUED THAT IN THE CASE OF ANAND MANGAL FINTRADE LTD.(AMFL)AN AMOUNT OF RS.2 LAKHS H AS ALREADY BEEN DELETED IN THE APPELLATE PROCEEDINGS OF THE A.Y.1989-90,THAT THE TRIBUNAL,VIDE ITS ORDER DATE 29.06.2001, HAD DELETED THE ADDITION,THAT AO WAS NOT JUSTIFIED IN DISALLOWING THE AMOUNT IN QUESTION, THAT THE AMOUNT OF LOANS OF THREE PARTIES NAMELY PRAVIN BAFNA,SHAILENDRA BAFNA AND MANJU J. BAFNA(RS.3 LAKHS,RS.6 LAKHS AND RS.3 LAKHS RESPECTI VELY) WERE DISALLOWED IN THE A.Y.2001- 02 BY THE AO,THAT THE FAA UPHELD THE DISALLOWANCE V IDE ITS ORDER DATED 07.03.2006, THAT THE DISALLOWANCE OF THE ABOVE AMOUNT WOULD LEAD TO DOUB LE DISALLOWANCE.THE ASSESSEE,VIDE ITS LETTER DATED 07.11.2008,FORWARDED CONFIRMATION LETT ER IN RESPECT OF 5 PARTIES NAMELY PRAVIN BAFNA(RS.3 LAKHS),RAJ ENTERPRISE(RS.3 LAKHS)SANWANC HAND UDAY CHAND BAFNA(RS.2 LAKHS), SHAILESH P. BAFNA(RS.6LAKHS)AND MANJU J. BAFNA(RS.3 LAKHS).IT WAS STATED BY THE ASSESSEE IT COULD NOT SUBMIT THE ABOVE CONFIRMATION LETTERS TO THE AO,THAT THE LETTERS WERE RECEIVED BY THAT ASSESSEE AFTER THE LAST HEARING TOOK PLACE.THE ASSESSEE MADE AN APPLICATION TO THE FAA FOR ADMITTING ADDITIONAL EVIDENCES. THE FAA FORWARDED THE FRESH EVIDENCES TO THE AO FOR ITS COMMENT,WHO ,IN HIS REPORT DATED 08.02.2010,STATED THE CONTENTION OF THE ASSESSEE HA D BEEN CONSIDERED.IN CASE OF MANJU BAFNA IT WAS STATED THAT AFTER THE EFFECT WAS GIVEN TO TH E ORDER OF THE TRIBUNAL THE ADDITION OF RS.3 LAKHS TO THE INCOME OF THE ASSESSEE WAS NOT DOUBLE ADDITION,THAT THE ASSESSEE DID NOT MAKE ANY REPAYMENT TILL A.Y.2009-10,THAT THE SAID AMOUNT WOULD QUALIFY BEING CESSATION OF LIABILITY.HE REQUEST THE FAA TO ADD THE AMOUNT IN Q UESTION U/S.41(1) OF THE ACT.THE FAA FORWARDED THE COPY OF THE REMAND REPORT TO THE ASSE SSEE FOR ITS COMMENTS.IN ITS LETTER,DATED 6068/10 DKENTERPRISE 3 20.04.2010,THE ASSESSEE STATED THAT NO ALLOWANCE OR DEDUCTION HAS BEEN GRANTED TO IT IN THE EARLIER ASSESSMENT YEAR IN RESPECT OF THE LIABILITI ES UNDER CONSIDERATION,THAT THE LIABILITIES WERE NOT TRADING LIABILITIES,THAT THE PROVISION OF SECTI ON 41(1) OF THE ACT WERE NOT APPLICABLE. AFTER CONSIDERING THE SUBMISSION OF ASSESSEE AND T HE ASSESSMENT ORDER ALONG WITH THE REMAND REPORT OF THE AO,THE FAA HELD THAT THE ASSESSEE HAD DEALT THE MATTER AND UNRESPONSIVE MANNER,THAT IT HAD FAILED TO PROVE GENUINENESS AND THE IDENTITY OF THE LENDER, THAT INITIALLY THE AO WAS NOT SUPPLIED WITH THE CONFIRMATION OF THE CR EDITORS, THAT SUMMONS WERE ISSUED AS THE ADDRESSES GIVEN BY THE ASSESSEE ON THE REQUEST OF T HE ASSESSEE, THAT THE SUMMONS ISSUED BY THE AO WERE RETURNED BY THE POSTAL AUTHORITIES,THAT THE AO REQUESTED THE ASSESSEE TO FURNISH NEW ADDRESSES AND TO PRODUCE THE PARTIES ON 09.02.2 006, THAT INSTEAD OF PRODUCING THE PARTIES THE AR OF THE ASSESSEE APPEARED IN THE FIRST WEEK O F MARCH 2006 BEFORE THE AO, THAT HE GAVE NEW ADDRESSES OF SIX PARTIES,THAT THERE WAS NO COMP LIANCE WITH THE SUMMONS ISSUED AT THE NEW ADDRESSES EXCEPT BY 4 OF THE 6 PARTIES,THAT TH ERE WAS NO COMPLIANCE ON 10.03.2006 ALSO BY THE ASSESSEE,THAT IN THE ENTIRE SPAN OF ABOUT 2 TO 3 YEARS (NOVEMBER 2004 TO MARCH 2006) THE ASSESSEE WAS NOT ABLE TO PROVE THE GENUINENESS OF THE LOAN TAKEN IN SPITE OF THE FACT THAT A NUMBER OF OPPORTUNITIES WERE PROVIDED BY THE AO.THE FAA REFERRED TO THE CASE OF SUMATI DAYAL (214 ITR 801),NANAKCHAND LAXIMDAS (104 ITR 15 1) AND HELD THAT THE ASSESSEE HAD FAILED TO PROVE THE GENUINENESS OF THE TRANSACTION AND THE CREDITWORTHINESS OF THE LENDER, THAT THE AO HAD MADE A DETAILED EFFORT.FINALLY,HE HELD T HAT THE ASSESSEE HAD FAILED TO PROVE THE GENUINENESS OF THE LOAN FROM ARVIND ENTERPRISES(RS. 25,000/-)JASBIR SING MANEKTALA (RS.9, 63,600/-),NEETA ENTERPRISES(RS.2LAKHS),PRIME CONSTR UCTIONS (RS.1,25,000/-),VINOD MEHRA (RS.8.50LAKHS),BHAGYALAKSHMI TRADING CORPORATION(RS .2 LAKHS),MASTANA INVESTMENT AND TRADING CO. PVT. LTD.(RS.2LAKHS)AND GUNVANT STEEL(R S.6.10 LAKHS).HE CONCLUDED THAT CASH CREDIT IN THE NAME OF ABOVE NINE PARTIES AMOUNTING TO RS.33,76,000/- REMAINED UNEXPLAINED. WITH REGARD TO AMOUNT OF RS.2,00,000/- SHOWED AS UN SECURED LOAN AMFL,THE FAA OBSERVED THAT TRIBUNAL HAD RESTORED BACK THE MATTER TO THE F ILE OF THE AO,THAT THE TRIBUNAL HAD NOT DELETED THE ADDITION OUTRIGHT,THAT DURING THE YEAR UNDER CONSIDERATION THE AMOUNT REMAINED OUTSTANDING,THAT THE ASSESSEE HAD NOT FURNISHED ANY EVIDENCE BEFORE THE AO OR HIM TO SUPPORT THE FACT THAT LIABILITY WAS ALIVE AND CONTINUING.HE FURTHER HELD SIMILAR WAS THE POSITION WITH REGARD TO THE LOANS OF PRAVIN BAFNA (RS.3 LAKHS),R AJ ENTERPRISES (RS.3 LAKHS), S.U.BAFNA (SUB)-(RS.2 LAKHS),SHAILESH BAFNA(RS. 6 LAKHS) AND MANJU J. BAFNA(RS.3 LAKHS),THAT NO REPAYMENT HAD BEEN MADE SINCE A.Y.2003-04 TILL A.Y. 2009-10,THAT AMOUNT WOULD QUALIFY TO BE TREATED AS CESSATION OF LIABILITY,THAT EVEN IT W AS ACCEPTED THAT AMOUNT WAS INITIALLY GENUINE UNSECURED LOANS THE ASSESSEE WAS REQUIRED TO EXPLAI N AS TO HOW THE UNDERCHARGED LIABILITY WAS 6068/10 DKENTERPRISE 4 YET ALIVE AND CONTINUING,THAT THE PROVISION OF SECT ION 41(1)OF THE ACT WERE NOT APPLICABLE TO THE FACTS OF THE CASE.HOWEVER, THE FAA HELD THAT AS PER THE PROVISION OF SECTION 28(IV) VALUE OF ANY BENEFIT OR PERQUISITE ARISING FROM THE BUSIN ESS OF THE EXERCISE OF PROFESSION WAS A TAXABLE ITEM OF INCOME,THAT THE TRANSACTION IN QUES TION HAD CLOSE AND DIRECT NEXUS WITH THE BUSINESS OF ASSESSEE,THAT THE AMOUNT OF RS.19 LAKHS WAS LIABLE TO BROUGHT U/S. 28(IV) OF THE ACT. 5. BEFORE US,THE AR CONTENDED THAT THE DISPUTE WAS ABO UT 14 PARTIES,THAT ALL THE CREDITORS WERE APPEARING IN THE BALANCE SHEETS OF EARLIER YEARS AN D LOANS WERE MORE THAN 10 YEARS OLD.HE REFERRED TO PAGE NO.177-179 OF THE PB AND STATED TH AT THE UNSECURED LOANS WERE STILL PAYABLE. HE REFERRED TO THE CASE OF JAGAT KUMAR PATEL(ITA/1 219/MUM/2003 DT.25.3.2015).HE ALSO REFERRED TO ORDER OF THE AO FOR AY.2001-02 AND THE ORDER OF THE FAA WHO HAD DECIDED THE APPEAL FOR THE AY.2001-02.HE CONTENDED THAT IN THE EARLIER YEAR,THE ISSUE WAS SET ASIDE,THAT WHILE GIVING EFFECT TO THE ORDER THE AO HAD ACCEPTE D THE LOAN OF AMFL.WITH REGARD TO PROVISIONS OF SECTION 28(IV),HE CONTENDED THAT PROV ISIONS OF SAID SECTION WERE NOT APPLICABLE, THAT THE ASSESSEE DID NOT GET ANY DEDUCTION.THE DEP ARTMENTAL REPRESENTATIVE(DR) ARGUED THAT ASSESSEE HAD ADMITTED THAT TIME LIMIT HAS LAPSED FO R PAYING THE LOANS,THAT IT HAD NOT FILED DETAILS BEFORE THE AO DURING THE ASSESSMENT PROCEED INGS. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.WE FIND THAT THE AO HAD MADE AN ADDITION OF 50.76 LOANS IN RESPECT O F LOANS TAKEN FROM 14 PARTIES,THAT THE FAA UPHELD THE ADDITION OF RS.37.76 LAKHS IN RESPEC T OF EIGHT PARTIES NAMELY ARVIND ENTERPRISES,JASBIR SING MANEKTALA,NEETA ENTERPRISE, PRIME CONSTRUCTIONS,VINOD MEHRA, BHAGYALAKSHMI TRADING CORPORATION,MASTANA INVESTMEN T AND TRADING CO. PVT. LTD. AND GUNVANT STEEL.IN OTHER FIVE CASES OF PRAVIN BAFNA,R AJ ENTERPRISES,SUB,SHAIESH BAFNA AND MANJU J. BAFNA,THE FAA INVOKED THE PROVISIONS OF SE CTION 28(IV)OF THE ACT,THAT IN THE LAST CASE I.E.IN CASE OF AMFL AN ADDITION OF RS.2.00 LA KHS WAS MADE BY THE AO WHILE PASSING THE ORDER OF AY 1989-90,THAT THE TRIBUNAL HAD DELETED T HE DISALLOWANCE VIDE ITS ORDER DATE 29.6.2001. WE FURTHER FIND THAT IN THE LIST OF UNSECURED LOAN SOF THE BALANCE SHEET OF 31.3.2003 OF THE ASSESSEE (PG NO. 178-179 OF THE PB),THE NAMES OF AR VIND ENTERPRISES,BHAGYALAXMI TRADING CORPN.,GUNVANT STEEL,JASBIR SINGH MANEKTALA,MANJU J . BAFNA,MASTANA INVESTMENT & TRADING CO.,NITA ENTERPRISES,PRAVEEN P. BAFNA, PRIME CONST RUCTION,SUB,SHAILESH P.BAFNA AND VINOD MEHRA ARE APPEARING.PG.NO.132-134 OF THE PB ARE THE CONFIRMATION LETTERS OF MASTANA 6068/10 DKENTERPRISE 5 INVESTMENT AND TRADING CO. LTD. FOR THE AY.S1988-89 TO 1990-91.THE ASSESSEE HAD GIVEN ITS GIR NO.OF THE LENDER ALSO.IT IS FOUND THAT IN THE O RDER GIVING EFFECT TO THE ITATS ORDER (ITA/4319/BOM/93 AND 2872/MUM/97 DATED 29.6.2001)A RELIEF OF RS.13.13 LAKHS FOR THE AY. 89-90,UNDER THE HEAD UNEXPLAINED CASH CREDIT ADDED U/S. 68 OF THE ACT,WAS GIVEN.IT IS FOUND THAT THE AMOUNT RS.13.13 LAKHS INCLUDED THE NAME OF ANAND MANGAL(RS.2.00 LAKHS). PG.NO. 112 OF THE PB IS THE CONFIRMATION LETTER OF VINOD M EHRA,WHEREIN HE HAD CONFIRMED THE ADVANCING THE LOAN OF RS.8.50 LAKHS TO THE ASSESSEE FOR THE AY.95-96. IT ALSO GIVES DETAILS OF GIR NO.OF THE VINOD MEHRA.PGNO.86 TO 97 OF THE PB A RE THE DOCUMENTS DEALING WITH THE LOAN OF SHAILESH P. BAFNA.IT CONTAINS THE PAN,BANK ACCOUNT,COPY OF RETURNS FILED BYHIM,FOR THE AY.2001-02 AND 2003-04,BALANCE SHEET AND COMPUT ATION OF INCOME OF AY.2001-02.HE HAS ALSO ISSUED A CONFIRMATION LETTER ABOUT THE LOA N ADVANCED TO THE ASSESSEE.RETURN OF INCOME FILED BY SUB FOR THE AY.S.2005-06 AND 2003-0 4 ARE AVAILABLE AT PG.NO.81 TO 85 OF THE PB.THE NAME OF THE ASSESSEE APPEARS IN THE LIST OF SUNDRY DEBTORS OF SUB,AS ON 31.3.2005.HE HAS ALSO ISSUED A CONFIRMATION LETTER ON 1.4.1999.PG.NO.65 IS THE CONFIRMATION OF SUB,DT.1.4.01 FOR THE AY 2001-02.PG.NO.70 TO 73 OF THE PB ARE ABOUT RAJESH BAFNA.THE DOCUMENTS INCLUDE RETURN OF INCOME,COMPUTATION OF T OTAL INCOME FOR THE AY. 2003-04.IN THE DETAILS OF LOANS AND ADVANCES THE NAME OF THE ASSES SEE IS APPEARING.RAJ ENTERPRISE HAS ISSUED CONFIRMATION LETTER FOR THE AY 2001-02 ON 1.4.01 AN D HAD CONFIRMED THE TRANSACTION WITH THE ASSESSEE.IT HAS ALSO GIVEN ITS PAN.VIDE ITS LETTER DT.27.2.04 THE ASSESSEE HAD FILED THE CONFIRMATION LETTERS FOR THE AY.2001-02 INCLUDING T HE CONFIRMATION OF SUB AND RAJ ENTERPRISE .IT WAS FURTHER STATED IN THE LETTER THA T IN THE CASES OF MANJU J. BAFNA, PRAVIN P. BAFNA,SHAILESH P BAFNA, CONFIRMATION LETTERS WERE N OT AVAILABLE. HOWEVER,ADDRESSES WERE PROVIDED.AS A RESULT,THE AO HAD ADDED LOAN AMOUNTS APPEARING IN NAMES OF MANJU BAFNA(RS.8.00 LAKHS),PRAVEEN BAFNA(6 LAKHS),SHAILES H BAFNA(6 LAKHS),WHILE PASSING THE ORDER U/S. 143(3) OF THE ACT,ON 19.3.2004,FOR THE AY.2001 -02.IT IS FOUND THAT PRIME CONSTRUCTION HAD ISSUED CONFIRMATION LETTER (PG.95OF THE PB)FOR AN AMOUNT OF 1.25 LAKHS FOR THE AY.1993- 94,GIVING ITS PAN.THE CONFIRMATION WAS FILED IN RES PONSE TO NOTICE ISSUED U/S.142(1) OF THE ACT FOR THE AY.1994-95 BY THE AO.PG NO.36 TO 41 ARE THE RETURNS OF INCOME/AY.2001-02 AND 03-04,COMPUTATION OF INCOME AND BALANCE SHEET,PAN,B ANK ACCOUNT AND CONFIRMATION LETTER OF THE LOAN OF RS.3.00 LAKHS OF JASBIR SINGH MANEK TALA.HE HAD ALSO ISSUED A CONFIRMATION LETTER FOR THE AY.2000-01 AND HAD CONFIRMED THE LO AN TRANSACTION (PAGE NO.35).CONFIRMATION LETTER OF NITA ENTERPRISE ARVIND ENTERPRISE ISSUE D FOR THE AY. 1993-94 ARE AVAILABLE IN THE PAPER BOOK. 6068/10 DKENTERPRISE 6 FROM THE ABOVE DISCUSSION,IT IS CLEAR THAT THE ASSE SSEE HAD NOT RECEIVED ANY FRESH LOAN DURING THE YEAR UNDER CONSIDERATION,THAT ALL THE LOANS WER E APPEARING ON THE FIRST DATE OF THE ASSESSMENT YEAR ARE OLDER LOANS.IN THE EARLIER YEAR S,THE ASSESSEE HAD FILED CONFIRMATION LETTERS OR OTHER DOCUMENTARY EVIDENCES TO SHOW THE GENUINEN ESS OF THE TRANSACTION.IN THOSE YEARS,THE AO.S HAD DEALT THE LOANS INDEPENDENTLY.EITHER THEY HAD NOT MADE ANY ADDITION U/S.68 OF THE ACT BY HOLDING THAT THE LOAN TRANSACTIONS WERE FICT ITIOUS OR THEY HAVE MADE ADDITIONS IN THAT PARTICULAR YEAR.IN OUR OPINION,THE AO CAN INVOKE TH E PROVISIONS OF SECTION 68 OF THE ACT FOR THE LOANS TAKEN DURING A PARTICULAR ASSESSMENT YEAR .BUT,IF A LOAN IS RECEIVED IN EARLIER YEARS AND ACCEPTED BY HIM IN THOSE YEAR/(S) OR NOT DOUBTE D IN THOSE YEAR/(S),THEN IN THE SUBSEQUENT YEARS,HE CANNOT ADD SAID AMOUNT,WHILE COMPUTING THE TOTAL INCOME OF AN ASSESSEE.IN SHORT,OPENING BALANCES OF LOANS OF EARLIER YEARS CA NNOT BE ADDED TO THE INCOME OF THE ASSESSEE,UNDER SECTION 68 OF THE ACT,IN SUBSEQUENT YEARS.IN THE CASE,UNDER CONSIDERATION,ALL THE LOANS ARE OF EARLIER YEARS,AS STATED EARLIER.IN THE CASES OF MANJU BAFNA,PRAVEEN BAFNA, SHAILESH BAFNA ADDITIONS WERE MADE IN EARLIER YEAR .THEREFORE, IN OUR OPINION NO ADDITION CAN BE MADE FOR THE YEAR UNDER APPEAL,AS IT WOULD R ESULT IN DOUBLE ADDITION OF THE SAME AMOUNT.AS FAR AS THE PROVISIONS OF SECTION 28 (IV) OF THE ACT IS CONCERNED WE ARE OF THE OPINION THAT THE FAA HAD WRONGLY APPLIED THE SECTIO N. THE PROVISIONS OF THE SECTION CAN BE INVOKED IF THE BENEFIT OR PERQUISITE IS NOT IN FORM OF CASH.IT CANNOT BE SAID THAT THE LOAN RECEIVED BY THE ASSESSEE COULD BE TERMED AS BENEFIT /PERQUISITE. CONSIDERING THE FACT THAT ALL THE LOANS WERE OF THE EARLIER YEARS AND IN THE EARLIER YEARS SAME HAVE BEEN ACCEPTED BY THE AO OR ADDITIONS WERE MADE IN THOSE YEARS,WE ARE OF THE OPINION THAT THERE WAS NO JUSTIFICATION IN INVOKING THE PRO VISIONS OF SECTION 68 OF THE ACT FOR THE YEAR UNDER CONSIDERATION.THEREFORE,REVERSING THE ORDER O F THE FAA,WE DECIDE FIRST GROUND NUMBER IN FAVOUR OF THE ASSESSEE. AS A RESULT,APPEAL FILED BY THE ASSESSEE STANDS PARTLY ALLOWED. . ORDER PRONOUNCED I N THE OPEN COURT ON 6 TH MAY, 2016. 6 TH , 2016 SD/- SD/- ( / AMIT SHUKLA ) ( / RAJENDRA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 06.05.2016. JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 6068/10 DKENTERPRISE 7 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR A BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.