ACIT Cen Cir 2[1] Pune., Pune V. Moti Udharam Panjabi, Pune

ITA 626/PUN/2011

• Counselvise Citation: 62624514 RSA 2011
• Duration Of Justice: 3 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 16-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS M S VERMA
• Assessee Lawyers: NILESH KHANDELWAL
• Keywords: Capital asset; Income from undisclosed sources; Search and seizure; Principle of natural justice; Rule of consistency; Corroborative evidences
• Section: 143(3); 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NO.626/PN/2011 (ASSESSMENT YEAR: 2003-04) THE ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(1), PUNE . APPELLANT VS. MOTI UDHARAM PANJABI MARBLE ARCH CO-OPERATIVE HSG. SOCIETY, FLAT NO.23/24, 6 TH FLOOR, GANESHKHIND ROAD, AUNDH, PUNE PAN: AARPP2118D . RESPONDENT ITA NO.660/PN/2011 (ASSESSMENT YEAR: 2003-04) MOTI UDHARAM PANJABI MARBLE ARCH CO-OPERATIVE HSG. SOCIETY, FLAT NO.23/24, 6 TH FLOOR, GANESHKHIND ROAD, AUNDH, PUNE PAN: AARPP2118D . APPELLANT VS. THE ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(1), PUNE . RESPONDENT ASSESSEE BY : MR. NILESH KHANDELWAL DEPARTMENT BY : MRS. M.S. VERMA, CIT ORDER PER G. S. PANNU, AM THE CAPTIONED CROSS APPEALS ARE DIRECTED AGAINST AN ORDER OF THE COMMISSIONER OF INCOME TAX, PUNE DATED 28.02.2011 W HICH IN TURN HAS ARISEN FROM AN ORDER PASSED BY THE ASSESSING OFFICER U/S 1 53A R.W.S. 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 28. 12.2007 PERTAINING TO THE ASSESSMENT YEAR 2003-04. ITA NOS.626 & 660/PN/2011 2. THE RESPECTIVE GROUNDS OF APPEAL RAISED BY THE A SSESSEE AND THE REVENUE ARE AS FOLLOWS:- GROUND OF APPEAL RAISED BY THE ASSESSEE 1. ON FACTS AND CIRCUMSTANCES PREVAILING IN THE CAS E AND AS PER PROVISIONS OF LAW, IT BE HELD THAT, LONG TERM CAPIT AL GAIN DECLARED BY THE APPELLANT IN RESPECT OF SHARES OF MEDIA METRICS LTD HOLDING THE SAME BY THE 1 ST APPELLATE AUTHORITY AS SHORT TERM CAPITAL GAIN IS CONTRARY TO THE FACTS PREVAILING IN THE CASE OF THE APPELLANT. THE SHARE TRANSACTION OUGHT TO HAVE BEEN HELD AS ASSESS ABLE UNDER THE HEAD CAPITAL GAIN TREATING THE SAME AS LONG TERM CA PITAL GAIN AS CLAIMED BY THE APPELLANT AND NOT AS SHORT TERM CAPI TAL GAIN AS IS HELD BY THE 1 ST APPELLATE AUTHORITY PERTAINING TO THE SHARES OF MED IA METRICS LTD. JUST AND PROPER RELIEF BE GRANTED TO T HE APPELLANT IN |HIS RESPECT. GROUNDS OF APPEAL RAISED BY THE REVENUE 1. IN FACTS AND CIRCUMSTANCES OF THE CASE, THE LD C IT(A) ERRED IN HOLDING THAT THE ASSESSEE HAD EARNED SHORT TERM CAP ITAL GAINS ON SALE OF SHARES OF MEDIA MATRIX LTD WHEN HE HAS HIMSELF HELD THAT THE ASSESSEE HAS NOT PROVED THE GENUINENESS OF THE PURCHASE OF THE SHARES 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD CIT(A) ERRED IN DELETING THE ADDITION OF RS.25,00,000/- MADE BY THE AO TOWARDS PROFIT ON SURRENDER OF RIGHTS IN THE KOTHRUD PROPE RTY DISREGARDING THE NARRATION IN THE REGISTERED MOU INDICATING PAYMENT OF RS.40,00,000/- TO THE ASSESSEE FOR SURRENDER OF HIS RIGHTS AND ENTRY IN HIS BOOKS INDICATING PAYMENT OF RS ; 15,00,000/- BY THE ASSESSEE FOR ACQUIRING THE RIGHTS. 3. THE ORDER OF THE CIT(A) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER BE RESTORED 3. THE CAPTIONED ASSESSEE BELONGS TO A FAMILY WHICH WAS PUT TO A SEARCH AND SEIZURE ACTION U/S 132 OF THE ACT ON 17.03.2006 . AS A CONSEQUENCE OF THE SEARCH ACTION, THE IMPUGNED ASSESSMENT HAS BEEN FIN ALIZED BY THE ASSESSING OFFICER U/S 153A R.W.S. 143(3) OF THE ACT. THE SUB STANTIVE DISPUTE IN THE PRESENT APPEALS RELATES TO THE TAXABILITY OF THE GA IN DECLARED BY THE ASSESSEE ON SALE AND PURCHASE OF SHARES OF MEDIA MATRIX LIMI TED (IN SHORT MEDIA MATRIX). NOTABLY, THE ASSESSEES GROUP WAS FOUND TO HAVE INDULGED IN THE PURCHASE AND SALE OF SHARES OF FIVE INVESTEE COMPAN IES VIZ. SILICON VALLEY TECHNOLOGY LIMITED, DATA BASE FINANCE LIMITED, MEDI A MATRIX LIMITED, BAFNA ENGINEERING PROJECT LTD. AND HAVEMORE FINANCE LTD. THE INVESTIGATIONS ITA NOS.626 & 660/PN/2011 CARRIED OUT BY THE REVENUE FORMED THE BASIS FOR THE ASSESSING OFFICER TO HOLD THAT THE GAIN DECLARED BY THE ASSESSEE AND OTHER FA MILY MEMBERS ON SALE AND PURCHASE OF ABOVE SHARES WAS BOGUS. IN THIS CONTEX T, THE ASSESSING OFFICER HAS TABULATED THE VARIOUS TRANSACTIONS UNDERTAKEN B Y THE DIFFERENT FAMILY MEMBERS, ALL OF WHOM HAD DECLARED LONG TERM CAPITAL GAINS ON SALE OF SHARES IN DIFFERENT ASSESSMENT YEARS COMPRISING OF 2002-03 TO 2005-06. BE THAT AS IT MAY, IN SO FAR AS THE PRESENT CASE IS CONCERNED, TH E ASSESSEE DECLARED A LONG TERM GAIN OF RS.3,73,869/- ON PURCHASE AND SALE OF SHARES OF MEDIA MATRIX. THEREFORE, SO FAR AS THE CAPTIONED APPEALS ARE CONC ERNED, THE ISSUE RELATES ONLY TO THE TRANSACTIONS CARRIED OUT BY THE ASSESSE E IN THE SHARES OF MEDIA MATRIX. 4. IN THE CONTEXT OF THE TRANSACTIONS IN THE SHARES OF MEDIA MATRIX, THE RELEVANT FACTS ARE AS FOLLOWS. THE ASSESSEE PURCHA SED THE SHARES OF MEDIA MATRIX THROUGH A BROKING FIRM M/S MOHIT SECURITIES ON 18.07.2001 AND IT WAS CLAIMED THAT THE TRANSFER WAS EFFECTED AFTER OBTAIN ING PHYSICAL DELIVERY OF THE SHARES. SUBSEQUENTLY, THE SHARES WERE TRANSFERRED BY THE ASSESSEE IN HIS D- MAT ACCOUNT MAINTAINED WITH THE COSMOS CO-OPERATIVE BANK LIMITED ON 15.11.2002. THE SHARES ARE CLAIMED TO HAVE BEEN SO LD THROUGH D-MAT ACCOUNT ON 13.01.2003 THROUGH A BROKING FIRM M/S. D HYAN STOCK BROKING PVT. LTD.. THE CLAIM OF THE ASSESSEE WAS THAT THE SHARE S WERE ACQUIRED BY HIM ON 18.07.2001 AND SOLD ON 13.01.2003 THEREBY MAKING IT A LONG TERM CAPITAL ASSET. ON THAT BASIS, ASSESSEE COMPUTED A LONG TER M CAPITAL GAIN ON SALE OF SUCH SHARES OF RS.3,73,869/- IN THE RETURN OF INCOM E FILED. THE ASSESSING OFFICER CARRIED OUT CERTAIN VERIFICATIONS, AS DETAI LED IN THE ASSESSMENT ORDER, WHICH WERE SIMILAR TO THE EXERCISE CARRIED OUT AT T HE GROUP LEVEL PERTAINING TO THE TRANSACTIONS UNDERTAKEN BY THE ASSESSEE AND HIS FAMILY MEMBERS IN THE EARLIER MENTIONED SHARES. ON THAT BASIS, THE ASSES SING OFFICER CONCLUDED THAT THE ASSESSEE HAD BOOKED BOGUS LONG TERM CAPITAL GAI N AND INSTEAD, ASSESSEE ITA NOS.626 & 660/PN/2011 HAD INTRODUCED UNACCOUNTED INCOME INTO THE ACCOUNT BOOKS IN THE GUISE OF LONG TERM CAPITAL GAIN. THEREFORE, THE SALE PROCEE DS OF MEDIA MATRIX CREDITED IN THE ACCOUNT BOOKS / BANK ACCOUNT DURING THE YEAR UNDER CONSIDERATION AT RS.4,27,500/- WAS TREATED AS UNDISCLOSED INCOME. F URTHER, THE ASSESSING OFFICER ALSO MADE AN ADDITION OF 6% OF THE SALE PRO CEEDS AS BROKERAGE INCURRED BY THE ASSESSEE FOR OBTAINING SUCH ACCOMMO DATION TRANSACTIONS. SUCH COMMISSION WAS COMPUTED AT RS.25,650/- AND THE REFORE, THE TOTAL ADDITION ON ACCOUNT OF BOGUS LONG TERM CAPITAL GAIN HAS BEEN MADE AT RS.5,43,150/- (ALTHOUGH THE CORRECT AMOUNT IS RS.4, 53,150/-). 5. IN APPEAL BEFORE THE CIT(A), ASSESSEE CHALLENGED THE ORDER OF THE ASSESSING OFFICER IN LAW AND ON FACTS ALSO. THE CI T(A) HAS REFERRED TO HIS ORDER IN THE CASE OF THE ASSESSEE FOR THE IMMEDIATE LY PRECEDING ASSESSMENT YEAR 2002-03 WHEREIN, HE HAS DEALT WITH THE ENTIRE ISSUE RELATING TO THE SHARE TRANSACTIONS CARRIED OUT BY ASSESSEE AND HIS OTHER FAMILY MEMBERS. THE CIT(A) HAS FOLLOWED HIS FINDINGS IN ASSESSMENT YEAR 2002-03 SINCE ACCORDING TO HIM, HE HAS DEALT WITH THE ENTIRE ISSUE IN ITS E NTIRETY IN THE APPELLANT PROCEEDINGS FOR ASSESSMENT YEAR 2002-03. FOR THE A FORESAID REASON, A COPY OF THE ORDER OF CIT(A) FOR ASSESSMENT YEAR 2002-03 DATED 28.02.2011 HAS BEEN PLACED ON RECORD. IN SO FAR AS THE PRESENT PR OCEEDINGS ARE CONCERNED, WE ARE LIMITING OURSELVES TO THE FINDINGS OF THE CI T(A) PERTAINING TO THE TRANSACTIONS IN THE SHARES OF MEDIA MATRIX ONLY SIN CE IN THE YEAR UNDER CONSIDERATION, THE ONLY LONG TERM CAPITAL GAIN DECL ARED BY THE ASSESSEE OF RS.3,73,869/- PERTAINS TO SALE AND PURCHASE OF THE SHARES OF MEDIA MATRIX. QUA THE TRANSACTIONS OF MEDIA MATRIX, THE FINDING O F THE CIT(A) IS THAT THE SALE OF SHARES IN RESPECT OF MEDIA MATRIX CANNOT BE TREA TED AS BOGUS, AND IN THIS MANNER HE HAS DISAGREED WITH THE ASSESSING OFFICER. SO HOWEVER, ACCORDING TO THE CIT(A), THE GENUINENESS OF PURCHASES EFFECTE D BY THE ASSESSEE OF THE SHARES OF MEDIA MATRIX ON 18.07.2001 COULD NOT BE P ROVED BY THE ASSESSEE. ITA NOS.626 & 660/PN/2011 THEREFORE, TO ARRIVE AT THE PERIOD OF HOLDING OF SH ARES OF MEDIA MATRIX BY THE ASSESSEE, HE HAS ADOPTED THE DATE ON WHICH SHARES W ERE TRANSFERRED IN THE D- MAT ACCOUNT OF THE ASSESSEE. SUCH DATE HAS BEEN TA KEN AS THE DATE OF ACQUISITION OF SUCH SHARES, AND CALCULATED FROM SUC H DATE, THE PERIOD FOR WHICH THE SHARES WERE HELD BY THE ASSESSEE PRIOR TO A SAL E WAS LESS THAN 12 MONTHS. THEREFORE, THE GAIN DECLARED BY THE ASSESSEE ON SAL E OF SHARES OF MEDIA MATRIX HAS BEEN HELD TO BE TAXABLE AS A SHORT TERM CAPITAL GAIN BY THE CIT(A). IN BACKGROUND OF THE ABOVE FINDING OF THE CIT(A), T HE ASSESSEE AS WELL AS REVENUE ARE IN APPEAL BEFORE US. IN SO FAR AS THE APPEAL OF THE REVENUE IS CONCERNED, IT SEEKS TO CHALLENGE THE FINDING OF THE CIT(A) THAT THE GAIN ON SALE OF SHARES OF MEDIA MATRIX WAS ASSESSABLE AS SHORT T ERM CAPITAL GAIN AS AGAINST THE STAND OF THE ASSESSING OFFICER THAT THE SAME WAS A MERE ACCOMMODATION ENTRY. IN CONTRAST, THE ASSESSEE IN ITS APPEAL SEEKS TO CHALLENGE THE STAND OF THE CIT(A) THAT THE GAIN ON THE SALE OF SHARES OF MEDIA MATRIX IS TO BE ASSESSED AS SHORT TERM CAPITAL GAIN AND NOT AS LONG TERM CAPITAL GAIN DECLARED IN THE RETURN OF INCOME. SINCE THE T WO CROSS GROUNDS RELATE TO THE SAME TRANSACTION, VIZ. SALE AND PURCHASE OF THE SHARE OF MEDIA MATRIX, THEY HAVE BEEN HEARD TOGETHER AND ARE BEING DISPOSE D OF BY WAY OF A COMMON ORDER. 6. IN THIS BACKGROUND, THE LEARNED COUNSEL HAS REFE RRED TO THE ORDER OF CIT(A) FOR THE EARLIER ASSESSMENT YEAR 2002-03, WHE RE HE HAS DISCUSSED THE ISSUE ELABORATELY, A COPY OF WHICH HAS BEEN ANNEXED BEFORE US ALSO. ACCORDING TO THE LEARNED COUNSEL, SO FAR AS THE SHA RES OF MEDIA MATRIX ARE CONCERNED, THE CIT(A) HELD THAT THE SALE PROCEEDS O N ACCOUNT OF SUCH SHARES COULD NOT BE TREATED AS UNDISCLOSED INCOME OF THE A SSESSEE. IN THIS CONTEXT, IT HAS BEEN CLARIFIED THAT THE ORDER OF THE CIT(A) FOR ASSESSMENT YEAR 2002-03 WAS A SUBJECT MATTER OF CONSIDERATION OF THE TRIBUN AL VIDE ITA NO.659/PN/2011 AND OTHERS, DATED 31.10.2012. IT HA S BEEN POINTED OUT IN THE ITA NOS.626 & 660/PN/2011 EARLIER YEAR, THE ISSUE RELATED TO THE TRANSACTION IN SHARES OF CONCERNS OTHER THAN MEDIA MATRIX AND IN SO FAR AS THE DEALING IN T HE SHARES OF MEDIA MATRIX IS CONCERNED, THE SAME ARISE FOR CONSIDERATION IN THE INSTANT ASSESSMENT YEAR OF 2003-04 ONLY. 7. THE LEARNED REPRESENTATIVE POINTED OUT THAT THE FINDING OF THE CIT(A) QUA THE DEALING IN THE SHARES OF MEDIA MATRIX IS CO NCERNED IS SIMILAR TO HIS FINDING IN THE CASE OF THE OTHER FAMILY MEMBERS IN RELATION TO ASSESSMENT YEAR 2003-04, DETAILED AS UNDER: I) MOTI UDHARAM PANJABI VIDE ORDER DATED 28.02.201 1 II) RADHA MOTI PANJABI III) RAMCHAND UDHARAM PANJABI IV) JAIWANTI RAMCHAND PANJABI V) RAJKUMAR RAM PANJABI VI) NARESH RAM PANJABI VII) GOVIND UDHARAM PANJABI VIII)USHA GOVIND PANJABI IX) SUNDERDAS UDHARAM PANJABI X) KAUSHALYA SUNDER PANJABI XI) JEETENDRA PANJABI 8. THE LEARNED REPRESENTATIVE FURTHER FILED COPIES OF THE ASSESSMENT ORDERS AS WELL AS THE ORDERS OF CIT(A) FOR THE ABOV E CASES FOR ASSESSMENT YEAR 2003-04 AND SUBMITTED THAT THE DEPARTMENT HAS NOT PREFERRED ANY APPEAL TO THE TRIBUNAL AGAINST THE FINDING OF THE CIT(A) T HAT WITH RESPECT TO THE TRANSACTIONS RELATING TO THE SHARES OF MEDIA MATRIX , THE GAIN THEREOF IS TO BE ASSESSED AS SHORT TERM CAPITAL GAIN. ON THIS BASIS , A PRELIMINARY OBJECTION HAS BEEN RAISED THAT ON THE PRINCIPLE OF CONSISTENCY, T HE GROUND OF APPEAL RAISED BY THE REVENUE IS UN-SUSTAINABLE. 9. ON THIS ASPECT, THE LEARNED CIT-DR HAS NOT CONTR OVERTED THE FACTUAL MATRIX. SO HOWEVER, ACCORDING TO HER, EACH APPEAL IS LIABLE TO BE DECIDED ON ITA NOS.626 & 660/PN/2011 ITS OWN MERITS AND THEREFORE, THE GROUNDS OF APPEAL RAISED BY THE REVENUE BE ADJUDICATED ON THE BASIS OF MERITS OF THE CASE. 10. IN SO FAR AS THE PRELIMINARY OBJECTION RAISED B Y THE ASSESSEE AGAINST THE GROUND OF APPEAL PREFERRED BY THE REVENUE IS CONCER NED, WE FIND THAT THE SAME SUFFERS FROM THE PRINCIPLE OF CONSISTENCY. IT IS A SETTLED PRINCIPLE OF LAW THAT DIFFERENT ASSESSEES PLACED IN IDENTICAL CIRCUM STANCES ARE LIABLE TO BE TREATED IN A SIMILAR MANNER BY THE REVENUE. IN THE AFORESAID CASES WHICH PERTAIN TO THE OTHER FAMILY MEMBERS OF THE ASSESSEE , REVENUE HAS ACCEPTED THE FINDING OF THE CIT(A) THAT IN RESPECT OF THE TR ANSACTIONS RELATING TO THE SHARES OF MEDIA MATRIX, THE GAIN IS LIABLE TO BE AS SESSED AS SHORT TERM CAPITAL GAIN. SUCH STAND OF THE REVENUE IS IN RELATION TO THE ASSESSMENT YEAR 2003- 04, WHICH ALSO IS THE ASSESSMENT BEFORE US IN RELAT ION TO THE CAPTIONED ASSESSEE. THEREFORE, IN THE ABSENCE OF ANY COGENT REASONING BROUGHT OUT BY THE REVENUE TO DEPART FROM THEIR STAND IN OTHER SIM ILAR CASES, THE IMPUGNED FINDING OF THE CIT(A), WHICH IS IN CONFORMITY TO HI S FINDING IN THE CASES OF OTHER FAMILY MEMBERS OF THE ASSESSEE, THE AFORESTATED GRO UNDS OF APPEAL RAISED BY THE REVENUE IS LIABLE TO BE DISMISSED. WE HOLD SO. 11. IN ANY CASE, EVEN IF ONE HAS TO LOOK AT THE MER ITS OF THE FINDING RECORDED BY THE CIT(A), WE FIND NO INFIRMITY THEREIN, AS OUR ENSUING DISCUSSION WOULD SHOW. THE CIT(A) HAS DISCUSSED THIS ISSUE IN PARAS 39 TO 43 OF HIS ORDER FOR ASSESSMENT YEAR 2002-03, WHICH HAS FORMED THE BASIS OF HIS DECISION IN THE INSTANT YEAR ALSO. IN TERMS OF THE SAID DISCUSSION , THE CIT(A) NOTICED THAT THE ASSESSING OFFICER HAS REFERRED TO A LETTER DATED 17 .03.2006 OF DHYAN STOCK BROKING PVT. LTD. THAT NO TRADING HAS BEEN DONE BY THEM IN RESPECT OF THE SHARES OF MEDIA MATRIX. THE CIT(A) FOUND THE AFORE SAID OBSERVATION OF THE ASSESSING OFFICER CONTRARY TO RECORD. IN PARA 42 O F HIS ORDER, THE CIT(A) HAS REPRODUCED THE SAID LETTER OF DHYAN STOCK BROKING P VT. LTD. AND ON THAT BASIS, ITA NOS.626 & 660/PN/2011 HE HAS HELD THAT THE SAID LETTER REVEALS DENIAL OF TRADING IN RESPECT OF THE SHARES OF DATA BASE FINANCIAL LTD. AND NOT IN RESPE CT OF THE SHARES OF MEDIA MATRIX. IN THIS BACKGROUND, HE HELD THAT THERE WAS NO MATERIAL BROUGHT ON RECORD BY THE DEPARTMENT TO PROVE THE SALE OF SHARE S OF MEDIA MATRIX AS BOGUS. SINCE HE ACCEPTED THE SALE OF THE SHARES OF MEDIA MATRIX AS GENUINE, HE DIRECTED THE ASSESSING OFFICER TO TREAT THE GAIN ON SALE OF THE SHARES OF MEDIA MATRIX AS SHORT TERM CAPITAL GAIN, HAVING REG ARD TO THE DATE OF TRANSFER IN THE D-MAT ACCOUNT OF THE ASSESSEE OF THE SHARES OF THE MEDIA MATRIX. 12. BEFORE US, NO MATERIAL HAS BEEN LEAD BY THE REV ENUE AGAINST THE AFORESAID FINDING OF THE CIT(A). THEREFORE, WE HER EBY AFFIRM THE FINDING OF THE CIT(A) THAT THERE IS NO MATERIAL BROUGHT ON RECORD BY THE DEPARTMENT TO PROVE THAT THE SALE IN RESPECT OF THE SHARES OF MEDIA MAT RIX IS BOGUS. CONSEQUENTLY, THE FINDING OF THE CIT(A) THAT THE GAIN FROM SUCH S ALE IS LIABLE TO BE ASSESSED AS CAPITAL GAIN IS ALSO HEREBY AFFIRMED. THEREFORE , THE AFFIRMATION OF THE AFORESAID STAND OF THE CIT(A) RESULTS IN DISMISSAL OF THE GROUND OF APPEAL RAISED BY THE REVENUE BEFORE US IN RELATION TO THE TRANSACTION IN RESPECT OF THE SHARES OF MEDIA MATRIX. 13. NOW, IN SO FAR AS THE PLEA OF THE ASSESSEE IN I TS APPEAL IS CONCERNED, IT SEEKS TO CHALLENGE THE TREATMENT OF THE CAPITAL GAI N AS A SHORT TERM CAPITAL GAIN BY THE CIT(A), AS AGAINST THE STAND OF THE ASS ESSEE OF IT BEING A LONG TERM CAPITAL GAIN. 14. IN THIS CONTEXT, BRIEF FACTS ARE THAT ASSESSEE CLAIMED TO HAVE PURCHASED 900 SHARES OF MEDIA MATRIX ON 18.07.2001 THROUGH MO HIT SECURITIES. THE CIT(A) HAS NOTICED THAT THE ASSESSEE AND HIS GROUP, PURCHASED 9600 SHARES OF MEDIA MATRIX FROM MOHIT SECURITIES IN JULY, 2001 AT RATES RANGING FROM RS.59.11 TO RS.60.51 PER SHARE. THE SAID SHARES WE RE SOLD BY THE GROUP @ ITA NOS.626 & 660/PN/2011 RS.47.50 TO RS.57.50 PER SHARE AFTER ONE SHARE WAS SPLIT INTO TEN SHARES. IN THIS BACKGROUND, IT IS TO BE NOTED THAT ASSESSEE PU RCHASED 900 SHARES ON 18.07.2001, AFTER SPLITTING INTO TEN SHARES EACH, H E SOLD 9000 SHARES ON 13.01.2003. SO FAR AS THE SALE OF SHARES ON 13.01. 2003 IS CONCERNED, THE SAME HAS BEEN ACCEPTED BY THE CIT(A), AS OUR DISCUS SION IN THE EARLIER PARAS SHOW. THE SALE IS EVIDENCED BY THE RELEVANT ENTRY IN THE D-MAT ACCOUNT OF THE ASSESSEE ALSO, A COPY OF WHICH HAS BEEN PLACED IN THE PAPER BOOK AT PAGES 1 TO 2. ON THIS ASPECT, THERE IS NO DISPUTE. 15. THE DISPUTE BEFORE US PERTAINS TO THE PERIOD OF HOLDING OF THE SHARES OF MEDIA MATRIX BY THE ASSESSEE PRIOR TO ITS SALE IN J ANUARY, 2003. THE CIT(A) HELD THAT THE PURCHASE OF THE SHARES IN JULY, 2001 WAS NOT PROVED. PRIMARILY, THE REASONING OF THE CIT(A) IS CONTAINED IN PARA 19 (III) OF HIS ORDER FOR ASSESSMENT YEAR 2002-03, WHICH HAS BEEN FOLLOWED BY HIM IN THE INSTANT YEAR ALSO. THE FOLLOWING DISCUSSION BY THE CIT(A) IN PA RA 19(III) WOULD MAKE THE POSITION CLEAR:- THE AO SPECIFICALLY POINTED OUT, AMONG OTHER THING S, THAT THE APPELLANT HAD NOT BROUGHT ON RECORD ANY PROOF IN RELATION TO THE IDENTIFICATION OF SHARES PURCHASED BY HIM. SHARES PURCHASED BY THE A PPELLANT SHOULD HAVE HAD THE DISTINCTIVE NUMBERS IN THE RELEVANT CO NTRACT NOTE. THERE IS NO PROOF OF TAKING DELIVERY OF IDENTIFIABLE SHARES ON PURCHASES OF THESE SHARES. IN THE ABSENCE OF IDENTIFICATION OF SHARES WHOSE DELIVERY WERE TAKEN AFTER PURCHASE, THEIR CO-RELATION WITH THOSE SHARES WHO WERE TAKEN INTO DEMAT ACCOUNT IS NOT POSSIBLE. THUS, TH E AO CONCLUDED THAT, EVEN THOUGH SALE MIGHT BE VERIFIABLE, PURCHAS ES ARE NOT VERIFIABLE. IN VIEW OF THESE OBSERVATIONS OF THE AO, THE APPELL ANTS GENERAL REPLY THAT TRANSACTIONS RELATING TO SALES AND PURCHASES W ERE COMPLETE AND THE AO COULD NOT FIND ANY DEFECT IN THESE TRANSACTI ONS BECOMES INCORRECT. UNDER THE CIRCUMSTANCES, I AM IN AGREEM ENT WITH THE VIEW OF THE AO THAT THE SET OF DOCUMENTS PROVIDED BY THE AP PELLANT DO NOT PROVE GENUINENESS OF THE PURCHASES OF THE RESPECTIV E SHARES. 16. BASED ON THE ABOVE FINDING IN PARA 19(III), THE REAFTER IN PARA 41 OF HIS ORDER, THE CIT(A) WHILE CONCLUDING THE ISSUE WITH R ESPECT TO THE TRANSACTIONS IN THE SHARES OF MEDIA MATRIX, HE HAS REFERRED TO THE ABOVE DISCUSSION AND HELD ITA NOS.626 & 660/PN/2011 THAT THE PURCHASE IN JULY, 2001 IS NOT PROVED. THE REFORE, HE ADOPTED THE DATE ON WHICH THE SHARES WERE PUT INTO D-MAT ACCOUNT BY THE ASSESSEE, AS THE STARTING POINT OF THE PERIOD, FOR WHICH THE ASSESSE E HAS HELD THE SHARES PRIOR TO ITS SALE. 17. THE AFORESAID DISCUSSION WOULD REVEAL THAT THE PURCHASE HAS NOT BEEN ACCEPTED ON THE GROUND THAT THE ASSESSEE COULD NOT PROVE THAT THE DISTINCTIVE NUMBERS OF THE SHARES IN THE RELEVANT PURCHASE CONT RACT NOTES ISSUED BY THE BROKER WERE RELATABLE TO THE SHARES WHICH HAVE BEEN TAKEN BY THE ASSESSEE INTO THE D-MAT ACCOUNT. IN OTHER WORDS, AS PER THE REVENUE, IN THE ABSENCE OF IDENTIFICATION OF SHARES WHOSE DELIVERY WAS TAKE N AFTER PURCHASE FROM THE BROKER AND THEIR CORRELATION WITH THOSE SHARES WHIC H ARE TAKEN INTO THE D-MAT ACCOUNT, IT IS NOT POSSIBLE TO IDENTIFY ANY OTHER D ATE OF ACQUISITION OF SHARES. THE AFORESAID STAND HAS BEEN REITERATED BY THE LEAR NED CIT-DR ALSO BEFORE US. 18. IN THIS CONTEXT, THE LEARNED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE DISTINCTIVE NUMBER OF 900 SHARES PURCHASED BY THE ASSESSEE IN JULY, 2001 IS CONTAINED IN THE CERTIFICATE ISSUED BY THE INVESTEE COMPANY M/S. MEDIA MATRIX VIDE LETTER DATED 04.08.2001, A COPY OF WHIC H HAS BEEN PLACED IN THE PAPER BOOK AT PAGE 6. IT IS FURTHER POINTED OUT TH AT THE SAID CERTIFICATE WAS FOUND IN THE COURSE OF SEARCH ON THE ASSESSEE AND I T FORMS PART OF SEIZED RECORD WITH THE DEPARTMENT. NOW, HE HAS INVITED OU R ATTENTION TO PAGE 50 OF THE PAPER BOOK WHICH IS A DE-MATERIALIZATION REQUES T FORM OF THE COSMOS CO- OPERATIVE BANK LTD. WITH WHICH THE ASSESSEE IS MAIN TAINING HIS D-MAT ACCOUNT. BY REFERRING TO THE SAID REQUEST FORM, IT IS POINTED OUT THAT THE DISTINCTIVE NUMBER OF THE SHARES OF MEDIA MATRIX PU T INTO THE D-MAT ACCOUNT BY THE ASSESSEE IS SIMILAR TO THE CONFIRMATION ISSU ED BY THE INVESTEE COMPANY ENUMERATING THE DISTINCTIVE NUMBER OF SHARES PURCHA SED BY THE ASSESSEE. ITA NOS.626 & 660/PN/2011 ACCORDING TO THE LEARNED REPRESENTATIVE, THE AFORES AID PIECE OF EVIDENCE CLEARLY SATISFIES THE OBJECTION OF THE REVENUE AND THEREFORE, THE PURCHASE OF THE SHARES STANDS PROVED IN THE MONTH OF JULY, 2001 ITSELF. 19. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON THI S ASPECT. THE ONLY POINT THAT IS BEING ADDRESSED BY US IS THE PERIOD F OR WHICH, ASSESSEE HAS HELD THE SHARES OF MEDIA MATRIX PRIOR TO ITS SALE. AS P ER THE CIT(A), THE PERIOD IS TO BE COUNTED FROM THE DATE OF D-MAT OF SUCH SHARES BY THE ASSESSEE. PERTINENTLY, THE CLAIM OF THE ASSESSEE WAS THAT SUC H SHARES WERE PURCHASED BY HIM BY WAY OF PHYSICAL DELIVERY IN THE MONTH OF JULY, 2001 AND THEREFORE, THE PERIOD OF HOLDING SHOULD START FROM JULY, 2001. THE CIT(A) CONSIDERED THE DATE OF D-MAT OF THE SHARES AS THE STARTING POINT O F THE PERIOD OF HOLDING BECAUSE ACCORDING TO HIM, THE SHARES PURPORTED TO H AVE BEEN PURCHASED IN PHYSICAL FORM COULD NOT CORRELATED BY THE ASSESSEE WITH THE SHARES PUT IN D- MAT ACCOUNT. IN OUR CONSIDERED OPINION, THE DOCUME NTS OF THE DEPOSITORY I.E. COSMOS CO-OPERATIVE BANK LTD. FURNISHED BY THE ASSE SSEE SUPPORTS HIS ASSERTION THAT THE SHARES PUT INTO THE D-MAT ACCOUN T BEAR THE SAME DISTINCTIVE NUMBERS AS WERE CANVASSED TO HAVE BEEN PURCHASED IN PHYSICAL FORM. NOTABLY, DISTINCTIVE NUMBER OF SHARES IS CONFIRMED BY THE INVESTEE COMPANY VIDE ITS COMMUNICATION DATED 04.08.2001, A COPY OF WHICH IS PLACED AT PAGE 6 OF THE PAPER BOOK. NOTABLY, THE AFORESAID DOCUMENT IS A THIRD PARTY EVIDENCE AND WAS FOUND IN THE COURSE OF SEARCH WITH ASSESSEE , AN ASSERTION WHICH IS NOT BEEN NEGATED BY THE REVENUE BEFORE US. THEREFO RE, THE AFORESAID EVIDENCE CANNOT BE SIMPLY BRUSHED ASIDE WITHOUT THE RE BEING ANY MATERIAL TO DISCARD IT. IN THIS CONTEXT, FROM PERUSAL OF ASSES SMENT ORDER, WE FIND THAT THERE IS NOTHING TO SUGGEST THAT THE SAID CONFIRMATION BY THE INVESTEE COMPANY HAS BEEN FOUND TO BE SUFFERING FROM ANY INFIRMITY. ITA NOS.626 & 660/PN/2011 20. AT THIS STAGE, WE MAY REFER TO A DOCUMENT OF TH E DEPOSITORY I.E. COSMOS CO-OPERATIVE BANK LTD. IN THE SHAPE OF DE-MATERIALI ZATION REQUEST FORM PLACED AT PAGE 50 OF THE PAPER BOOK. OF COURSE, TH IS EVIDENCE WAS NOT BEFORE THE LOWER AUTHORITIES. THE LEARNED REPRESENTATIVE SUBMITTED THAT THE SAID EVIDENCE IS NOT AN INDEPENDENT PIECE OF EVIDENCE BU T ONLY SUPPORTING EVIDENCE TO THE ASSERTIONS AND THE STAND OF THE ASS ESSEE WHICH IS ALREADY ON RECORD BEFORE THE LOWER AUTHORITIES. NO DOUBT, THE SAID DOCUMENT IS IN CONSONANCE WITH THE CONFIRMATION OF THE INVESTEE CO MPANY DATED 04.08.2001, WHICH IS AN EVIDENCE FORMING A PART OF THE RECORD O F THE DEPARTMENT. THE CONFIRMATION OF THE INVESTEE COMPANY IS ALSO A THIR D PARTY EVIDENCE AND SO IS THE SAID DE-MATERIALIZATION REQUEST FORM OF THE COS MOS CO-OPERATIVE BANK LTD. CONSIDERING THE ENTIRETY OF THE CIRCUMSTANCES, WE T HEREFORE, HOLD THAT THE CIT(A) ERRED IN CONSIDERING THE PERIOD OF HOLDING F ROM THE DATE OF D-MAT MERELY BECAUSE THE DISTINCTIVE NUMBER OF SHARES PUR CHASED IN PHYSICAL FORM COULD NOT BE RELATABLE TO THE SHARES TAKEN INTO THE D-MAT ACCOUNT. THE AFORESAID EVIDENCE CLEARLY SUGGESTS THAT THE SHARES WHOSE PHYSICAL DELIVERY WAS TAKEN AFTER PURCHASE CORRESPONDS TO THE SHARES WHICH HAVE BEEN TAKEN INTO THE D-MAT ACCOUNT BY THE ASSESSEE. HOWEVER, E VEN IF WE DO NOT SUBSCRIBE TO THE PLEA OF THE ASSESSEE THAT THE SHAR ES HAVE BEEN PURCHASED IN JULY, 2001, AS ALSO HELD BY THE CIT(A), BUT BY CONS IDERING THE THIRD PARTY EVIDENCE IN THE SHAPE OF THE LETTER OF INVESTEE COM PANY DATED 04.08.2001, WHICH HAS NOT BEEN DIS-CREDITED AT ALL BY THE ASSES SING OFFICER, THE PERIOD OF HOLDING OUGHT TO HAVE BEEN CALCULATED FROM THE DATE OF THIS LETTER. PERTINENTLY, THE SAID LETTER OF THE INVESTEE COMPANY CONFIRMS TH E TRANSFER OF SHARES TO THE NAME OF THE ASSESSEE AND THE DISTINCTIVE NUMBER OF THE SHARES TRANSFERRED. CONSIDERED IN THIS LIGHT, THE SHARES OF MEDIA MATRI X ARE HELD BY THE ASSESSEE FOR A PERIOD EXCEEDING 12 MONTHS PRIOR TO THEIR SAL E IN JANUARY, 2003 AND THEREFORE, IN OUR VIEW, THE GAIN THEREFROM IS LIABL E TO BE ASSESSED AS A LONG ITA NOS.626 & 660/PN/2011 TERM CAPITAL GAIN. THUS, TO THIS EXTENT, WE MODIFY THE ORDER OF THE CIT(A). ON THIS ASPECT, ASSESSEE SUCCEEDS AS ABOVE. 21. THE LAST GROUND IN THE APPEAL OF THE REVENUE IS WITH RESPECT TO THE ACTION OF THE CIT(A) IN DELETING THE ADDITION OF RS .25 LAKHS MADE BY THE ASSESSING OFFICER ON ACCOUNT OF SURRENDER OF RIGHTS IN THE PROPERTY AT KOTHRUD. 22. IN THIS CONTEXT, BRIEF FACTS ARE THAT IN THE CO URSE OF ENQUIRY PROCEEDINGS CONDUCTED IN CONNECTION WITH THE CASE OF M/S. KHER & ASSOCIATES, PUNE IT WAS NOTICED THAT AS PER AN MOU DATED 03-06-2002 ENTERED BETWEEN DADHE CONSTRUCTIONS PVT. LTD., PUNE AND M/S. VIRAJ PROPER TIES, PUNE ASSESSEE HAD SURRENDERED HIS RIGHT IN A PROPERTY AT KOTHRUD, PUN E, WHICH WAS ORIGINALLY OWNED BY KORDE AND MUTHA FAMILIES. AS PER THE ASSE SSING OFFICER, IN TERMS OF THE SAID MOU THE ASSESSEE AND HIS FAMILY HAD SURREN DERED THEIR RIGHTS VALUED AT RS.40 LAKHS. IT IS ALSO NOTED BY THE ASSESSING OFFICER THAT BALANCE SHEET OF M/S. RAMA BUILDERS AND DEVELOPERS SHOWED THAT ASSES SEE HAS PAID RS. 15 LAKHS TO SHRI KORDE. ON THE BASIS OF THE AFORESAID , ASSESSING OFFICER WAS OF THE VIEW THAT THE TRANSACTION MENTIONED IN THE MOU RELATED TO THE ASSESSEE FAMILY AND THUS THE DIFFERENTIAL AMOUNT OF RS.25 LA KHS WAS LIABLE TO BE ASSESSED AS INCOME IN THE HANDS OF THE ASSESSEE ON ACCOUNT OF SURRENDER OF RIGHTS IN THE PROPERTY AT KOTHRUD. THE ASSESSEE RE SISTED THE SAID ACTION ON SEVERAL GROUNDS. AS PER THE ASSESSEE, THE NAME OF PANJABI WAS APPEARING ON TOP OF ONE OF THE PAGE OF THE MOU FURNISHED TO THE ASSESSEE AND THAT THERE WAS NO SIGNATURE OF ASSESSEE OR ANY OF HIS FAMILY M EMBERS IN THE MOU. THE ASSESSEE ALSO REQUESTED THAT AN OPPORTUNITY BE ALLO WED TO CROSS EXAMINE THE WITNESS TO SHOW THAT THE MOU DID NOT BELONG TO HIM. THE ASSESSEE ALSO REQUIRED THE ASSESSING OFFICER TO FURNISH A COMPLET E COPY OF THE MOU, WHICH WAS SOUGHT TO BE USED AGAINST HIM. ALL THE AFORESA ID OBJECTIONS WERE REJECTED ITA NOS.626 & 660/PN/2011 BY THE ASSESSING OFFICER AND HE ADDED THE AMOUNT OF RS.20 LAKHS TO THE ASSESSEES TOTAL INCOME. 23. BEFORE THE CIT(A), ASSESSEE REITERATED THAT NEI THER THE COMPLETE COPY OF THE MOU WAS FURNISHED AND NOR HE WAS ALLOWED AN OPPORTUNITY TO CROSS EXAMINE THE WITNESS OF THE ASSESSING OFFICER. THER EFORE, THE ADDITION WAS UNSUSTAINABLE. APART THEREFROM, IT WAS REITERATED THAT THE PAGES OF THE MOU FURNISHED DID NOT BEAR THE SIGNATURE OF THE ASSESSE E. IN THIS MANNER, IT WAS ASSERTED BY THE ASSESSEE THAT THE TRANSACTION IN TH E MOU WAS NOT RELATABLE TO THE ASSESSEE. THE CIT(A) HAS CALLED FOR A REMAND R EPORT FROM THE ASSESSING OFFICER IN TERMS OF SECTION 250(4) OF THE ACT. AFT ER CONSIDERING THE REMAND REPORT OF THE ASSESSING OFFICER AND THE SUBSEQUENT REPLY OF THE ASSESSEE, CIT(A) HAS DELETED THE ADDITION BY MAKING THE FOLLO WING DISCUSSION : 5.5 A CAREFUL CONSIDERATION OF THE GROUNDS ON WHI CH THIS ADDITION WAS MADE, APPELLANT'S SUBMISSION THEREOF, REMAND REPORT IN RESPECT OF THIS ADDITION, COMMENTS OF THE APPELLANT ON THE REMAND R EPORT AND OTHER MATERIAL AVAILABLE ON RECORD REVEALS THAT THE AO WA S NOT JUSTIFIED IN MAKING THIS ADDITION. ADMITTEDLY, THE ADDITION WAS MADE BY PLACING RELIANCE ON MOU WHICH WAS FOUND DURING INQUIRY PROC EEDINGS FROM A THIRD PARTY. THEREFORE, THE ADDITION WAS BASED ON A THIRD PARTY EVIDENCE. UNDER THE CIRCUMSTANCES, THE AO WAS DUTY BOUND TO C ONFRONT THE AUTHENTICATED MATERIAL WHICH WAS TO BE USED AGAINST THE APPELLANT AND TO GIVE HIM AN OPPORTUNITY TO CROSS-EXAMINE THE REL EVANT PERSON IN CASE THE APPELLANT SO DESIRED. IN FACT, FOR THIS VERY PU RPOSE, AN ORDER U/S.250(4) OF IT. ACT WAS PASSED TO SPECIFICALLY FO LLOW THE PRINCIPLES OF NATURAL JUSTICE. HOWEVER, THE SAME WAS NOT DONE BY THE AO. INSTEAD, HE SAID THAT APPELLANT'S GRIEVANCE THAT HE WAS NOT GIV EN AN OPPORTUNITY OF CROSS-EXAMINATION IS UNFOUNDED AS THE DEPARTMENT'S CASE IS NOT BASED ON THE DEPOSITION OF ANY WITNESS. UNDER THE CIRCUMS TANCES, I AM INCLINED TO AGREE WITH THE APPELLANT'S CONTENTION T HAT THE EVIDENCE RELIED UPON BY THE AO CANNOT BE CONSIDERED WHILE ADJUDICAT ING THE ADDITION MADE BY HIM AND THEREFORE, THE ADDITION DESERVES TO BE DELETED. THEREFORE, GROUND OF APPEAL NO.3 IS ALLOWED. 24. AGAINST THE AFORESAID, REVENUE IS IN APPEAL BEF ORE US. BEFORE US, THE LD. CIT DEPARTMENTAL REPRESENTATIVE HAS REITERATED THE REASONING TAKEN BY THE ASSESSING OFFICER IN ORDER TO JUSTIFY THE IMPUG NED ADDITION. THE LD. DEPARTMENTAL REPRESENTATIVE REITERATED THAT THOUGH COMPLETE COPY OF THE ITA NOS.626 & 660/PN/2011 MOU WAS NOT GIVEN TO THE ASSESSEE, THE RELEVANT PAR AS APPEARING ON PAGES 24 AND 25 WERE CONFRONTED BY THE ASSESSING OFFICER ON BASIS OF WHICH ASSESSEE OUGHT TO HAVE OFFERED HIS EXPLANATION, WHE REAS NO EXPLANATION WAS FURNISHED BY THE ASSESSEE. IT WAS THEREFORE CONTEND ED THAT THE CIT(A) ERRED IN DELETING THE IMPUGNED ADDITION. 25. ON THE OTHER HAND THE LD. REPRESENTATIVE APPEAR ING FOR THE ASSESSEE POINTED OUT THAT THERE WAS NO MATERIAL TO SUGGEST T HAT THE TRANSACTION NOTED IN THE ALLEGED MOU WAS RELATABLE TO THE ASSESSEE OR HI S FAMILY. THEREFORE, THE CIT(A) MADE NO ERROR IN DELETING THE IMPUGNED ADDIT ION. 26. IN OUR CONSIDERED OPINION, THE CIT(A) IS JUSTIF IED IN DELETING THE IMPUGNED ADDITION ON ACCOUNT OF FACT THAT THE EVIDE NCE WHICH ASSESSING OFFICER SOUGHT TO USE AGAINST THE ASSESSEE WAS NOT CONFRONTED IN ITS ENTIRETY TO THE ASSESSEE AND THE ASSESSEE WAS ALSO DENIED AN OP PORTUNITY TO CROSS EXAMINE OR REBUT SUCH EVIDENCE. ADMITTEDLY, THE MO U WHICH HAS FORMED THE BASIS FOR ASSESSING OFFICER TO MAKE THE ADDITION, W AS FOUND IN THE COURSE OF ENQUIRY PROCEEDINGS IN CONNECTION WITH ANOTHER CASE , I.E. M/S. KHER & ASSOCIATES. IT IS ALSO CLEAR THAT THE COMPLETE MOU WAS NOT FURNISHED SO AS TO OFFER AN OPPORTUNITY TO THE ASSESSEE TO MEET SUCH E VIDENCE. IT TRANSPIRES FROM THE ORDERS OF THE AUTHORITIES BELOW THAT ONLY A FEW PAGES OF THE MOU WERE CONFRONTED TO THE ASSESSEE. INFACT, EVEN WITH RESP ECT TO SUCH MATERIAL, ASSESSEE ASSERTED THAT THE SAME DID NOT CONTAIN SIG NATURES OF ANY OF THE FAMILY MEMBERS OF THE ASSESSEE. THE AFORESAID ASPE CT IS UNREBUTTED BY THE REVENUE. IT IS TRITE LAW THAT IF THE ASSESSING OFF ICER IS INTENDING TO USE A THIRD PARTY EVIDENCE AGAINST THE ASSESSEE, IT IS OBLIGATO RY FOR HIM TO CONFRONT THE RELEVANT MATERIAL TO THE ASSESSEE AND THAT TOO, ONL Y AFTER ITS AUTHENTICITY HAS BEEN ESTABLISHED. IN THE PRESENT CASE, ASSESSEE HA S NOT EVEN BEEN PROVIDED WITH THE COMPLETE COPY OF THE MOU, AND THE REVENUE HAS NOT ESTABLISHED HOW ITA NOS.626 & 660/PN/2011 THE ASSESSEE WAS LINKED TO THE TRANSACTION IN THE M OU, WHEN SUCH AN MOU DOES NOT EVEN CARRY THE SIGNATURES OF THE ASSESSEE. THEREFORE, CONSIDERING THE ENTIRETY OF FACTS AND CIRCUMSTANCES, WE FIND TH AT THE CIT(A) MADE NO ERROR IN DELETING THE IMPUGNED ADDITION, WHICH WE HEREBY AFFIRM. 27. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. 28. RESULTANTLY, WHEREAS THE APPEAL OF THE ASSESSEE IS ALLOWED, THAT OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH OCTOBER, 2014. SD/- SD/- (SHAILENDRA KUMAR YADAV) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 10 TH OCTOBER, 2014. GCVSR COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-CENTRAL, PUNE; 4) THE CIT-CENTRAL, PUNE; 5) THE DR A BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// ASSISTANT REGISTRAR I.T.A.T., PUNE