ASST CIT 10(3), MUMBAI V. BLUE DIAMOND INFRASTRUCTURE & REALITY P. LTD, NAVI MUMBAI

ITA 6119/MUM/2011

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8996 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 4 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2017
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 08-12-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 05-09-2011
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMAR
• Assessee Lawyers: MANISH V SHAH
• Keywords: Business income; Additional evidence
• Section: 143(3); 68

Judgement Text

, , B, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.6176/MUM/2011 ASSESSMENT YEAR: 2008-09 BLUE D IAMOND INFRASTRUCTURE & REALITY PVT. LTD., 202, ANANT BUILDING, PLOT NO.88/2, SECTOR 29, VASHI, NAVI MUMBAI-400703 / VS. ASST. CIT 10(3) MUMBAI- ( APPELLANT ) (RESPONDENT ) P.A. NO. AACCB5769L ITA NO.6119/MUM/2011 ASSESSMENT YEAR: 2008-09 ASS T. CIT 10(3) MUMBAI- / VS. BLUE DIAMOND INFRASTRUCTURE & REALITY PVT. LTD., 202, ANANT BUILDING, PLOT NO.88/2, SECTOR 29, VASHI, NAVI MUMBAI-400703 (APPELLANT ) (RESPONDENT ) P.A. NO. AACCB5769L APPELL ANT BY SHRI MANISH V. SHAH (AR) REVENUE BY SHRI SUMAN KUMAR (DR) / DATE OF HEARING: 1 9 / 12 /201 6 /DATE OF ORDER: 11 / 01 /201 7 / O R D E R PER ASHWANI TANEJA: THESE CROSS APPEALS HAVE BEEN FILED AGAINST THE ORD ER OF LD. CIT(A) DATED 08.06.2011. 2 BLUE DIAMOND 2. DURING THE COURSE OF HEARING, ARGUMENTS WERE MADE BY SHRI MANISH V. SHAH, AUTHORISED REPRESENTATIVES (AR ) ON BEHALF OF THE ASSESSEE AND BY SHRI SUMAN KUMAR, DEPARTMENTAL REPRESENTATIVE (DR) ON BEHALF OF THE R EVENUE. FIRST WE SHALL TAKE UP ASSESSEES APPEAL IN ITA NO. 6176/M/2011 THE ASSESSEE HAS FILED ON FOLLOWING GROUNDS: 1. GROUND I: DISALLOWANCE OF LOSS ON VALUATION OF SHARES HELD AS STOCK IN TRADE OF RS. 17,79,713/- ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE HON'BLE COMMISSIONER OF INCOME TAX (APPEALS)-10 (3) ['THE CIT(A)'] ERRED IN CONFIRMING THE ACTION O F THE ASSESSING OFFICER IN DISALLOWING THE LOSS ON VALUATION OF SHARES OF RS. 17,79,713/- ON THE ALLEG ED GROUND THAT THE SHARES ARE HELD BY THE APPELLANT AS INVESTMENT AND NOT AS STOCK IN TRADE. 2. THE APPELLANT PRAYS THAT THE AFORESAID DISALLOWA NCE OF RS.17,79,713/-. 3. DURING THE COURSE OF HEARING, IT WAS SUBMITTED BY THE LD. COUNSEL OF THE ASSESSEE THAT THOUGH IN THE YEAR UND ER CONSIDERATION THE LOSS ON VALUATION OF STOCK OF SHA RES CLAIMED BY THE ASSESSEE WAS DENIED BY THE LOWER AUTHORITIES BY TREATING THE SHARES AS INVESTMENT BUT IN SUBSEQUENT YEARS WH EN THESE SHARES WERE SOLD, THE INCOME ARISING THEREON WAS AS SESSED UNDER THE HEAD BUSINESS BY THE AO IN THE ORDER PA SSED U/S 143(3) DATED 11 TH FEBRUARY 2014. THEREFORE, THE ACTION OF THE LOWER AUTHORITIES IN DISALLOWING THE SAME IN THE IM PUGNED YEAR AND IN TREATING THE SHARES AS NON-BUSINESS ITEM WAS SELF CONTRADICTORY. IN SUPPORT OF HIS ARGUMENTS, HE FILE D PETITION 3 BLUE DIAMOND DATED 19 TH DECEMBER 2016 U/R 29 OF INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 STATING AS UNDER: THE CAPTIONED APPEAL IS FILED AGAINST THE ORDER UN DER SECTION 143(3) OF THE INCOME-TAX ACT, 1961 (THE ACT ') PASSED BY THE HONBLE COMMISSIONER OF INCOME TAX (APPEALS) - 22 MUMBAI ('CIT(A)') DATED JUNE 8, 2011. THE HEARING OF THE CAPTIONED APPEAL IS NOW SCHEDULED BEFORE THE HON'BLE B BENCH OF INCOME TAX APPELLATE TRIBUNAL, MUMBAI TODAY I.E. DECEMBER 19. 2016. IN THIS CONNECTION, THE APPELLANT MOST HUMBLY SUBMI TS AS UNDER: IN THE SAID ORDER, THE HON'BLE CIT(A) UPHELD THE AC TION OF THE AO IN DISALLOWING THE LOSS ON VALUATION OF CLOSING STOCK OF SHARES CLAIMED BY THE APPELLANT ON THE GROUND THAT THE APPELLANT HAS CLASSIFIED THE SHARES AS HELD STOCK IN TRADE ONLY TO CLAIM THE VALUATION LOSS AND THUS THE SHARES SHOULD BE TREATE D AS INVESTMENTS AND THE VALUATION LOSS BE DISALLOWED. THE APPELLANT SUBMITS THAT THE APPELLANT HAS SOLD T HE SHARES OF BINANI CEMENTS LTD. IN FY 2010-11 ON AUGUST 3, 2010 AND TREATED THE SAME AS BUSINESS INCOME. THE APPELLANT FILED ITS RETURN OF INCOME FO R AY 2011-12 ON SEPTEMBER 29, 2011 OFFERING THE SALE OF SHARES AS BUSINESS INCOME AND OFFERING IT AS SUCH. THEREAFTER, THE ASSESSMENT ORDER WAS PASSED U/S 143(3) ON FEBRUARY 11, 2014 WHEREBY THE DEPARTMENT HAS ACCEPTED THE SALE OF SHARES AS BUSINESS INCOME AS DECLARED BY THE APPELLANT. THE APPELLANT FURTHER SUBMITS THAT IT TRANSFERRED T HE SHARES OF PREMIER LTD. HELD AS STOCK IN TRADE TO A PARTNERSHIP FIRM NAMED BLUE CHIP AT COST. THE SAID TRANSFER WAS TREATED AS SALES IN THE FINANCIAL STATEMENTS FOR FY 2015-16 AND WAS OFFERED AS BUSINESS INCOME IN THE RETURN OF INCOME FILED ON OC TOBER 16, 2016. SINCE, THESE EVENTS HAVE TAKEN PLACE AFTER PASSING OF THE IMPUGNED ORDER BY HON'BLE CIT(A) ON JUNE 8, 2011, T HESE DOCUMENTS COULD NOT BE PLACED BEFORE HONBLE CIT(A) . THE APPELLANT HUMBLY SUBMITS THAT THE AFORESAID EVENTS BEING CRUCIAL TO THE DECISION AS TO WHETHER THE SHA RES 4 BLUE DIAMOND WERE STOCK IN TRADE OR INVESTMENTS, THE EVIDENCES F ILED IN RESPECT OF THE ABOVE.-PLACED IN ADDITIONAL EVIDENCE PAPER BOOK ON PAGE NO. 1 TO 42 OUGHT TO BE ADMITTED. 3.1. IN VIEW OF THESE FACTS LD. COUNSEL FILED FOLLOWING ADDITIONAL EVIDENCES IN PURSUANCE TO THE AFORESAID PETITION: COPIES OF 1. LEDGER OF SALE OF SHARES OF BINANI CEMENT LTD IN F Y 2010-11 2. AUDITED FINANCIAL STATEMENTS FOR FY 2010-1 1 3. COMPUTATION OF INCOME FOR AY 2011 -12 4. ACKNOWLEDGEMENT OF ROI FILED FOR AY 2011-12 5. ASSESSMENT ORDER FOR AY 2011-12 6. LEDGER OF TRANSFER OF SHARES OF PREMIER LTD IN FY 2015- 16 7. AUDITED FINANCIAL STATEMENTS FOR FY 2015-16 8. COMPUTATION OF INCOME FOR AY 2016-17 9. ACKNOWLEDGEMENT OF ROI FILED FOR AY 2016-17 3.2. IN VIEW OF THE ABOVE SAID FRESH EVIDENCES, IT WAS REQUESTED THAT THIS ISSUE NEEDS TO BE LOOKED AFRESH BY THE LO WER AUTHORITIES TO ENABLE THEM TO REMOVE CONTRADICTIONS IN THE ORDERS PASSED IN THE CASE OF ASSESSEE IN TWO DIFFER ENT YEAS. 3.3. PER CONTRA, LD. DR FAIRLY SUBMITTED THAT THESE EVI DENCES MAY BE SENT BACK TO THE FILE OF THE AO FOR FRESH AD JUDICATION. 3.4. WE HAVE GONE THROUGH THE ORDERS PASSED BY THE LOWE R AUTHORITIES AS WELL AS STRONG EVIDENCE FILED BEFORE US. IN OUR CONSIDERED VIEW AND ACCEPTING JOINT REQUEST MADE BY BOTH THE PARTIES, WE FIND IT APPROPRIATE TO SEND THIS ISSUE BACK TO THE FILE OF THE AO WHO SHALL TAKE INTO CONSIDERATION TH E EVIDENCES PLACED BEFORE US AS WELL AS ORDERS PASSED BY HIM IN A.Y. 2011- 12 FOR DECIDING THIS ISSUE AFRESH. IT IS WELL SETTL ED THAT REVENUE AUTHORITIES ARE NOT EXPECTED TO FOLLOW INCONSISTENC E APPROACH IN DIFFERENT YEARS, UNLESS THERE IS A CHANGE IN FAC TS OR LEGAL 5 BLUE DIAMOND POSITION. THEREFORE, AO SHALL DECIDE THIS ISSUE AFR ESH AFTER GIVING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSES SEE. THE ASSESSEE IS FREE TO TAKE ALL LEGAL AND FACTUAL ISSU ES BEFORE AO WITH REGARD TO THIS GROUND AND SHALL EXTEND REQUISI TE COOPERATION TO AO BY SUBMITTING DETAILS AND EVIDENC ES AS MAY BE REQUIRED BY THE AO FROM TIME TO TIME. THIS GROUN D MAY BE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. NOW WE SHALL TAKE REVENUES APPEAL FILED ON THE FOL LOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID. CIT(A) HAS ERRED IN DELETING TH E ADDITION OF RS.45,00,000/- MADE U/S 68 OF THE I.T.ACT ON ACCOUNT OF SHARE APPLICATION MONEY WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE FAI LED TO PRODUCE THE PARTIES FROM WHOM THE APPLICATION MONEY IS RECEIVED. 2. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, VARY, OMI T OR SUBSTITUTE ANY OF THE AFORESAID GROUNDS OF APPEA L AT ANY TIME BEFORE OR AT THE TIME OF HEARING OF APP EAL. 5 . THE BRIEF BACKGROUND IS THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTED THAT ASSESSEE HAD RECEIVED SHARE APPLICATION MONEY OF RS.45,00,000/- FROM THE FOLLOWING PARTIES HAVING THEIR REGISTERED OFFICE IN KOLKATA. NAME OF THE COMPANY AMOUNT (RS.) 1. GOPALKA SAVINGS AND INV.(P) LTD. 10,00,000 2. PUSHPAK SUPPLIERS (P) LTD. 10,00,000 3. SHREE MAHASATI INVESTMENT LTD. 10,00,000 4. HANURANG MERCANTILE (P) LTD. 10,00,000 5. ANJANI TIE UP(P) LTD. 5,00,000 TOTAL 45,00,000 THE AO ASKED THE ASSESSEE TO PRODUCE THE PARTIES. T HE ASSESSEE SUBMITTED BEFORE AO SHARE APPLICATION FORM S, INCOME-TAX RETURNS, BANK STATEMENT OF APPLICANT ETC . THE 6 BLUE DIAMOND AO NOTED THAT IN BANK STATEMENT OF LENDERS, THERE W AS CREDIT ENTRY BEFORE ISSUE OF CHEQUES AND RETURNED I NCOME WAS VERY LITTLE. ASSESSEE SUBMITTED DETAILS OF BANK STATEMENT, PAN ETC. BUT COULD NOT PRODUCE THE LENDERS. THEREFO RE, AO ADDED ENTIRE AMOUNT OF RS.45,00,000/- U/S 68 OF THE ACT. 5.1. DURING THE APPELLATE PROCEEDINGS BEFORE THE CIT(A) , THE ASSESSEE CONTESTED THE ADDITION MADE BY THE AO MAKI NG FOLLOWING AVERMENTS:- (I) SUFFICIENT TIME WAS NOT GIVEN BY THE AO TO PROD UCE THE PARTIES. (II) SUFFICIENT DOCUMENTARY EVIDENCES HAVE GIVEN TO ESTABLISH IDENTITY OF THE SHARE HOLDERS, GENUINENESS OF THE T RANSACTIONS AND CREDITWORTHINESS OF THE SHARE HOLDERS. (III) ADDITION COULD NOT BE MADE SIMILAR BECAUSE PA RTIES WERE NOT PRODUCED. 5.2. LD. CIT(A) CONSIDERED THE SUBMISSIONS OF THE ASSES SEE AND DELETED THE ADDITION ON THE GROUND THAT ASSESSE E HAD FURNISHED DOCUMENTARY EVIDENCES IN SUPPORT OF ITS TRANSACTIONS, THEREFORE, THE ONUS UPON THE ASSESSEE AS IS ENVISAGED U/S 68 STOOD DISCHARGED. BEING AGGRIEVED WITH THE ORDER OF LD. CIT(A), THE REVENUE FILED APPEAL BEFOR E THE TRIBUNAL. 5.3. DURING THE COURSE OF HEARING BEFORE US, LD. DR VEHEMENTLY CONTESTED THE ACTION OF LD. CIT(A) IN DE LETING THE ADDITION. IT WAS SUBMITTED BY THE LD. DR THAT IN TH IS CASE DESPITE SPECIFIC REQUIREMENT OF THE AO, THE ASSESSE E FAILED TO PRODUCE THE PARTIES, THEREFORE THE AO WAS NOT IN A POSITION TO EXAMINE THE TRANSACTIONS PROPERLY. THE AO COULD NOT EXAMINE 7 BLUE DIAMOND COMPLETE MONEY TRAIL. FURTHER, CREDITWORTHINESS OF THE SHAREHOLDERS COULD NOT BE EXAMINED AS THE EVIDENCES WERE FURNISHED VERY LATE. FURTHER, BEFORE LD. CIT(A) ALS O, NEITHER CREDITWORTHINESS OF THE SHAREHOLDERS COULD NOT BE E STABLISHED BY THE ASSESSEE NOR GENUINENESS OF THE TRANSACTION COULD BE PROPERLY EXAMINED. THOUGH SOME DOCUMENTARY EVIDENCE S WERE FURNISHED BY THE ASSESSEE, BUT LD. CIT(A) CHOSE TO PASS THE ORDER WITHOUT PROPERLY EXAMINING THESE EVIDENCES. E VEN, BEFORE THE LD. CIT(A), THE ASSESSEE COULD HAVE OFFE RED TO PRODUCE THE PARTIES OR TO MAKE DIRECT INQUIRIES FRO M THESE SHAREHOLDERS. BUT, LD. CIT(A) PASSED THE ORDER WITH OUT PROPERLY EXAMINING IDENTITY AND CREDITWORTHINESS OF THE SHAREHOLDERS AND GENUINENESS OF THE TRANSACTIONS. U NDER THESE CIRCUMSTANCES, THIS ISSUE SHOULD BE SENT BACK TO THE FILE OF THE AO FOR PROPER EXAMINATION. THE RELIANCE WAS PLACED ON THE JUDGMENT OF HONBLE DELHI HIGH COURT IN THE CAS E OF CIT V. JANSAMPARK ADVERTISING AND MARKETING PVT. LTD. 375 ITR 373 WHEREIN IT WAS HELD BY THE HONBLE HIGH COURT THAT IN CASE PROPER INQUIRIES ARE NOT MADE BY THE LOWER AUTHORIT IES, THEN THE ISSUE OF ADDITION MADE U/S 68 SHOULD BE SENT BA CK TO THE FILE OF THE AO FOR PROPER EXAMINATION. 5.4. PER CONTRA, LD. COUNSEL OF THE ASSESSEE VEHEMENTLY SUPPORTED THE ORDER OF LD. CIT(A). HE DREW OUR ATTE NTION UPON THE EVIDENCES FILED IN THE PAPER BOOK WHEREIN ASSES SEE HAD ENCLOSED CONFIRMATION LETTERS, BANK STATEMENTS AND CERTIFICATE OF INCORPORATION ETC. OF THE SHARE APPLICANTS. IT W AS ALSO SUBMITTED BY THE LD. COUNSEL THAT IT IS NOT ABSOLUT E BURDEN OF 8 BLUE DIAMOND THE ASSESSEE TO PRODUCE THE PARTIES. HE PLACED RELI ANCE UPON THE FOLLOWING JUDGMENTS IN SUPPORT OF ORDER OF LD. CIT(A). PROPOSITION 1: WHERE ASSESSEE SUBMITS PAN, BANK STA TEMENTS, CONFIRMATIONS, ETC OF THE PARTIES, ADDITION U/S 68 CANNOT BE MADE 1. CIT VS. LOVELY EXPORTS (F) LTD. (21 6 ITR 195) (SC) 2. CIT VS. CREATIVE WORLD TELEFILMS LTD. (ITA NO. 2 182 OF 2009) 3. CIT VS. OASIS HOSPITALITIES PVT. LTD. 333 ITR 11 9 (DEL.) 4. CIT VS. DOLPHIN CANPACK LTD. (283 ITR 190) (DEL ) 5. CIT VS. DWARKADHISH INVESTMENT (P.) LTD (194 TAX MAN 43) (DEL. HC) 6. CIT VS. JAY DEE SECURITIES & FINANCE LTD. 350 LT R 220 (ALL. HC) 7. MADHURI INVESTMENTS PVT. LTD. VS. ACIT (ITA NO. 110 OF 2004) (KAR. HC) 8. CIT VS. ARUNANANDA TEXTILES PVT. I TD (2011) 33 3 ITR II 6 (KAR. HC) 9. CIT VS. SHREE BARKHA SYNTHETICS LTD. (270 FIR 4 77) (RAJ. HC) 10. DCIT VS. GLOBAL MERCHANTILES (P.) LTD. (2016) 1 57 ITD 924 (KOL. TRIB.) 11. ACIT VS. ETC INDUSTRIES I.TD. (2012) 52 SOT 159 (INDORE TRIB.) PROPOSITION 2: NON PRODUCTION OF PARTIES CANNOT BE A GROUND FOR MAKING ADDITION U/S 68 OF THE ACT: 1. CIT VS. VICTOR ELECTRODES LTD. 329 ITR 271 (DEL HC) 2. CIT VS. ORBITAL COMMUNICATION (P.) LTD. 327 ITR 560 (DEL.HC) 9 BLUE DIAMOND 3. CIT VS. SOM TOBACCO INDIA LTD (2014) 222 TAXMAN 58 (ALL. HC)(MAG) 4. ITO VS. ELCON ALLOYS LTD. (ITA NO. 4657/DEI/2009 ) 5.5. IN REJOINDER, LD. DR DREW OUR ATTENTION ON THE REP LIES FILED BY THE ASSESSEE BEFORE THE AO. IT WAS SHOWN THAT TH E ASSESSEE HAD FILED REPLY DATED 22 ND DECEMBER, 2010 WHEREIN ASSESSEE HAS FILED SOME CONFIRMATIONS FROM THE SHARES APPLIC ANTS. IT WAS SUBMITTED THAT IT WAS A CASE OF TIME BARING ASS ESSMENT PROCEEDINGS. ASSESSMENT ORDER WAS PASSED ON 22 ND DECEMBER, 2010. THUS, EFFECTIVELY THE AO HAD NO TIME TO MAKIN G VERIFICATION OF THESE CONFIRMATIONS AND OTHER DOCUM ENTARY EVIDENCES SUBMITTED BY THE ASSESSEE. THE ASSESSEE D RAGGED THE PROCEEDINGS IN SUCH A MANNER THAT NO EXAMINATIO N COULD BE DONE BY THE AO AND LD. CIT(A) ALSO PASSED APPEAL ORDER WITHOUT VERIFYING REAL FACTS BEHIND THE CAMAFLOUGED PAPER WORK, THEREFORE THIS CASE DESERVES TO GO BACK FOR P ROPER EXAMINATION IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THIS CASE. 5.6. WE HAVE GONE THROUGH THE ORDERS PASSED BY THE LOWE R AUTHORITIES AND ALSO CONSIDERED THE SUBMISSIONS MAD E BEFORE US AS WELL AS JUDGMENTS RELIED BY BOTH THE PARTIES BEFORE US. THE PERUSAL OF ORDERS PASSED BY THE LOWER AUTHORITI ES REVEALS THAT THE ASSESSEE WAS ASKED TO PRODUCE THE PARTIES FOR PROPER VERIFICATION. THE ASSESSEE NEITHER PRODUCED THE PAR TIES NOR REQUESTED THE AO TO MAKE DIRECT VERIFICATION FROM T HESE PARTIES SHOWING INABILITY OF THE ASSESSEE TO PRODUCE THESE PARTIES. FURTHER, THE CONFIRMATIONS AND OTHER EVIDENCES IN T HE FORM OF BANK STATEMENTS ETC. WERE FILED AT FAG END OF THE A SSESSMENT 10 BLUE DIAMOND PROCEEDINGS ON 22 ND DECEMBER 2010. IN APPEAL BEFORE THE LD. CIT(A), THESE DOCUMENTS WERE PUT BEFORE HIM AND SIM PLY RELYING UPON THESE DOCUMENTS, HE DELETED THE ADDITI ON. LD. CIT(A) HAS NOWHERE IN HIS ORDER GIVEN ANY FACTUAL F INDINGS BASED UPON ANALYSIS OF ALL THESE EVIDENCES. HE HAS SIMPLY TAKEN THESE EVIDENCES AS CORRECT ON THEIR FACE VALU E WITHOUT MAKING ANY FURTHER VERIFICATION, ANALYSIS AND EXAMI NATION WHATSOEVER. IT HAS BEEN MENTIONED BY HIM IN HIS ORD ER THAT AO HAD DOUBTED THE GENUINENESS OF THE SHAREHOLDERS MER ELY BECAUSE THE ASSESSEE COULD NOT PRODUCE AS SHAREHOLD ER FOR VERIFICATION BEFORE THE AO. BUT, TIME GIVEN BY THE AO WAS NOT SUFFICIENT. HOWEVER, WHILE OBSERVING SO, LD. CIT(A) OMITTED TO CONSIDER THIS FACT THAT ASSESSEE HAD GIVEN THE COMP LETE EVIDENCES AT THE FAG END OF THE PROCEEDINGS. AS PER SECTION 68, THE PRIMARY BURDEN IS UPON THE SHOULDERS OF THE ASS ESSEE TO ESTABLISH NATURE AND SOURCE OF THE AMOUNT RECEIVED BY WAY OF LOAN OR SHARE APPLICATION MONEY. THE PERUSAL OF THE ORDERS PASSED BY THE LOWER AUTHORITIES IN THE LIGHT OF TOT ALITY OF FACTS AND CIRCUMSTANCES OF THIS CASE AS DISCUSSED ABOVE C LEARLY INDICATES THAT THIS ISSUE HAS NOT BEEN PROPERLY EXA MINED IN THE LIGHT OF COMPLETE FACTS. THE JUDGMENTS RELIED U PON BY BOTH THE PARTIES WERE DELIVERED IN ACCORDANCE WITH THE F ACTS OF THOSE CASES AND THESE ARE NOT APPLICABLE ON THE FACTS OF THE CASE BEFORE US. THEREFORE, WE FIND IT APPROPRIATE TO SEN D THIS ISSUE BACK TO THE FILE OF THE AO WHERE THE ASSESSEE SHALL EXTEND REQUISITE COOPERATION TO THE AO BY FURNISHING REQUI SITE DETAILS AND DOCUMENTARY EVIDENCES WELL IN TIME AND SHALL AL SO MAKE SINCERE EFFORTS TO PRODUCE THE PARTIES BEFORE THE A O FOR 11 BLUE DIAMOND EXAMINATION OF THE TRANSACTIONS. THE AO SHALL BE AT LIBERTY TO MAKE DIRECT VERIFICATION WITH THE SHARE APPLICANTS AND ENFORCE THEIR ATTENDANCE USING HIS AMPLE POWER UNDER THE LA W, IF NEEDED. THE AO SHOULD GIVE ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE AND SHALL TAKE INTO CONSIDERATION A LL THE MATERIAL AS MAY BE PLACED ON RECORD BY THE ASSESSEE BEFORE DECIDING THIS ISSUE AFRESH. THUS, WITH THESE DIRECT IONS THIS ISSUE IS SENT BACK TO THE FILE OF THE AO. GROUNDS R AISED BY THE REVENUE MAY BE TREATED AS ALLOWED FOR STATISTICAL P URPOSES. 6. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED FOR ST ATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH JANUARY, 2017. SD/- (JOGINDER SINGH ) SD/- (ASHWANI TANEJA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; ' DATED : 11 /01/2017 PATEL, P.S/. #.. %#&'(')/ COPY OF THE ORDER FORWARDED TO : 1. *+ / THE APPELLANT 2. %,*+ / THE RESPONDENT. 3. - ( ) / THE CIT, MUMBAI. 4. - / CIT(A)- , MUMBAI 5. '01 %## , , 12 BLUE DIAMOND / DR, ITAT, MUMBAI 6. 1234 / GUARD FILE. / BY ORDER, ,'%# //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI