Hemant Indarchand Bora, Nashik V. Income-tax Officer,

ITA 632/PUN/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 0776 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 02-04-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHRI
• Keywords: Unexplained expenditure; Income from undisclosed sources; Search and seizure
• Section: 69C; 143(3); 142(1); 132

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI PRADIP KUMAR KEDIA , AM . / ITA NO. 632 /PN/201 4 / ASSESSMENT YEAR : 20 09 - 1 0 SHRI HEMANT INDARCHAND BORA, SHIMPI LANE, AT POST VANI, TAL. DINDORI, NASHIK 422215 . / APPELLANT PAN: A EJPB4624G VS. THE INCOME TAX OFFI CER, WARD 1 ( 1 ), NASHIK . / RESPONDENT / APPELLANT BY : SHRI NIKHIL PATHAK / RESPOND ENT BY : SHRI PANKAJ GARG / DATE OF HEARING : 0 7 . 12 .2015 / DATE OF PRONOUN CEMENT: 09 . 1 2 .2015 / ORDER PER SUSHMA CHOWLA, J M : TH IS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF C IT (A) - I , NASHIK , DATED 30 . 0 1 .20 14 RELATING TO ASSESSMENT YEAR 20 09 - 1 0 PASSED AGAINST ORDER U NDER SECTION 143(3) OF THE INCOME - TAX ACT , 19 61 (IN SHORT THE ACT) . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1] THE ASSESSEE SUBMITS THAT THE ASST. ORDER PASSED U/S. 143(3) IS BAD IN LAW SINCE THE LEARNED A.O. HAS MADE THE ADDITION ON THE BASIS OF EVIDENCES FOUND IN THE COURSE OF SEARCH ON THIRD PARTY AND HENCE, THE ASST. SHOULD HAVE BEEN PASSED U/S. 153C R.W.S. 153A. ITA NO. 632 /PN/201 4 HEMANT INDARCHAND BORA 2 WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE ASSESSEE SUBMITS THAT 2] THE LEARNED CIT(A) ERRED IN HOLDING THAT THE ASSESSEE HAD MADE UNACCOUNTED CASH PAYMENTS OF RS.6,71, 4 60/ - TO M/S. SARGAM RETAILS PVT. LTD. @ RS.95/ - PER BAG OF GAI CHHAP JARDA PURCHASED FROM THE SAID PARTY AND HENCE, THE ADDITION MADE IN THIS RESPECT WAS JUSTIFIED. 3] THE LEARNED CIT(A) ERRED IN CONFIRMING THE SAID ADDITION MERELY BY RELYIN G ON THE STATEMENT RECORDED ULS 132(4) OF SHRI RAJESH MALPANI, DIRECTOR OF M/S SARGAM RETAILS PVT. LTD. WITHOUT APPRECIATING THAT THERE WAS NO CORROBORATIVE EVIDENCE TO SHOW THAT THE ASSESSEE HAD MADE ANY SUCH UNACCOUNTED PAYMENTS TO THE ABOVE COMPANY. 4] THE LEARNED CIT(A) FAILED TO APPRECIATE THAT IN THE LETTER SUBMITTED BY SHRI RAJESH MALPANI IN THE COURSE OF APPELLATE PROCEEDINGS, SHRI MALPANI HAD CLEARLY STATED THAT NO CASH WAS COLLECTED DIRECTLY FROM THE ASSESSEE AND THEREFORE, THE ADDITION MADE ON THE BASIS OF THE EARLIER STATEMENT OF SHRI MALPANI WAS NOT JUSTIFIED AT ALL. 5] WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE ASSESSEE SUBMITS THAT THE ALLEGED AMOUNT OF RS.6,71,460 / - WAS COLLECTED BY THE ASSESSEE FROM THE VARIOUS WHOLESALERS AND RETAILERS ON BEHALF OF M/S. SARGAM RETAILS PVT. LTD. AND WAS SUBSEQUENTLY PAID TO THE SAID PARTY AND HENCE, THE SAME WOULD NOT CONSTITUTE INCOME IN THE HANDS OF THE ASSESSEE AND THUS, THE SAID ADDITION IS NOT JUSTIFIED ON FACTS OF THE CASE. 6] THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 3. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE AT THE OUTSET POINTED OUT THAT THE ISSUE RAISED IN THE PRESENT APPEAL VIDE GROUNDS OF APPEAL POINTED OUT THAT THE ISSUE RAISED IN THE PRESENT APPEAL VIDE GROUNDS OF APPEAL NO.2 TO 5 IS SQUARELY COVERED BY THE ORDER OF TRIBUNAL IN SHRI SHRENIK SHANTILAL DHADIWAL VS. TRO IN ITA NO. 1909 /PN/201 3 RELATING TO ASSESSMENT YEAR 2009 - 10, ORDER DATED 08 . 1 0.2015, WHEREIN, SIMILAR ISSUE OF ADDITION MADE ON ACCOUNT OF SEARCH IN THE CASE OF MALPANI GROUP, WAS MADE IN T HE HANDS OF DEALERS OF GAI CHAP ZARDA. HOWEVER, GROUND OF APPEAL NO.1 IS NOT PRESSED , HENCE, THE SAME IS DISMISSED AS NOT PRESSED. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE PLACED RELIANCE ON THE ORDERS OF AUTHORITIES BELOW. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ONLY ISSUE RAISED IN THE PRESENT APPEAL IS IN RELATION TO THE ADDITION MADE ON ACCO UNT OF UNACCOUNTED CASH PAYMENT. THE CASE OF THE REVENUE WAS THAT THE ASSESSEE HAD MADE UNACCOUNTED PAYMENTS FOR TH E PURCHASE OF GAI CHAP ITA NO. 632 /PN/201 4 HEMANT INDARCHAND BORA 3 ZARDA FROM M/S. SARGAM RETAILERS PVT. LTD. THE BASIS FOR THE SAID ADDITION WAS THE STATEMENT RECORDED OF ONE SHRI MALPANI. THE CASE OF THE ASSESSEE WAS THAT IT HAD NOT MADE ANY SUCH PAYMENTS TO M/S. SARGAM RETAILERS PVT. LTD. AND F URTHER, THE RELIANCE ON THE STATEMENT OF SHRI MALPANI WITHOUT GIVING ANY OPPORTUNITY OF CROSS - EXAMINATION, WAS BAD IN LAW. 6. WE FIND THAT AN IDENTICAL ISSUE AROSE BEFORE THE PUNE BENCH OF THE TRIBUNAL IN SHRI SHRENIK SHANTILAL DHADIWAL VS. TRO (SUPRA) , WHEREIN THE TRIBUNAL IN TURN, RELIED ON THE DECISION IN M/S. BALAJI AGENCIES VS. ITO IN ITA NO.353/PN/2014 , RELATING TO ASSESSMENT YEAR 2009 - 10, ORDER DATED 20.02.2015, ITO VS. SHRI DINESH SATYANARAYAN TAWANI, ITA NO.938/PN/2013 AND ITO VS. SHRI SANJAY MOH ANLAL CHHAJED, ITA NO.1746/PN/2012 BOTH RELATING TO ASSESSMENT YEAR 2009 - 10. THE TRIBUNAL VIDE ORDER OF EVEN DATE IN ITO VS. SHRI DINESH SATYANARAYAN TAWANI (SUPRA), HELD AS UNDER: - 7. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE WAS A DEALER OF GAI CHAP ZARDA, TEA AND OTHER GOODS OF SARGAM RETAILERS PVT. LTD., MALPANI TEAL CORPORATION AND MALPANI PRODUCTS, SANGAMNER. THE ASSESSEE WAS CARRYING CORPORATION AND MALPANI PRODUCTS, SANGAMNER. THE ASSESSEE WAS CARRYING ON TRADING ON WHOLESALE BASIS. THE ASSESSING OFFICER RECEIVED A REFERENCE FROM DDIT (INV.), UNIT - I(2), PUNE, IN THE CASE OF MALPANI GROUP OF CASES OF SANGAMNER AND PUNE. ON THE BASIS OF THE SAID INFORMATION, THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND NOTICES UNDER SECTION 143(2) / 142(1) WERE ISSUED. IN THE SEARCH ACTION CARRIED OUT UNDER SECTION 132 OF THE ACT, IN THE MALPANI GROUP OF CASES, CERTAIN DOCUMENTS WERE FOUND AND SEIZED FROM VARIOUS PREMISES OF THE SAID GROUP. THE STATEMENT OF SHRI RAJESH OMKARNATH MALPANI, DIRECTOR OF SARGAM RETAILERS PVT. LTD. WAS RECORDED UNDER SECTION 132(4) OF THE ACT ON 3 RD DECEMBER 2009. IN HIS STATEMENT, HE HAD ACCEPTED THAT M/S. SARGAM RETAILERS PVT. LTD., HAD COLLECTED CASH FROM THE DEALERS OF GAI CHAP ZARDA ON ACCOUNT OF FAILURE OF FULFILLMENT OF TARGETS SET FOR SALE OF GAI CHAP ZARDA. A LIST OF DEALERS AND AMOUN T OF CASH COLLECTED FROM EACH DEALER WAS MADE PART AND PARCEL OF THE STATEMENT. AS PER THE LIST FORWARDED BY THE DDIT (INV.), A SUM OF RS.16,51,445/ - WAS COLLECTED FROM THE ASSESSEE FOR THE INSTANT ASSESSMENT YEAR ON ACCOUNT OF NON - FULFILLMENT OF TARGET OF SALES OF GAI CHAP ZARDA. THE ASSESSEE, IN REPLY, STATED THAT THE ASSESSEE HAD NOT GIVEN ANY CASH PAYMENT OF RS.16,51,445/ - OTHER THAN THE PAYMENT RECORDED IN THE BOOKS OF ACCOUNT TOWARDS PURCHASES MADE FROM M/S. SARGAM RETAILERS PVT. LTD. THE A.O. REJECTE D THE REPLY OF THE ASSESSEE AND OBSERVED THAT SINCE THE PAYMENTS WERE RECEIVED IN CASH, THE SAME WOULD NOT BE RECORDED IN THE BOOKS OF ACCOUNT. IN VIEW OF THE STATEMENT OF SHRI RAJESH OMKARNATH MALPANI, RECORDED UNDER SECTION 132(4) OF THE ACT, WHICH AS PE R THE A.O. HAD EVIDENTIARY VALUE COULD BE TAKEN AS TRUE. HENCE, THE SAID AMOUNT OF RS.16,51,445/ - WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF ITA NO. 632 /PN/201 4 HEMANT INDARCHAND BORA 4 UNEXPLAINED EXPENDITURE WITHIN THE MEANING OF SECTION 69C OF THE ACT. FURTHER, SHRI RAJESH OMKARNA TH MALPANI, ALSO ADMITTED THAT M/S. SARGAM RETAILERS PVT. LTD., HAD COLLECTED CASH FROM DEALERS ON ACCOUNT OF REJECTED GOODS. IT WAS ADMITTED BY HIM THAT THE SAME AMOUNT WAS COLLECTED FROM THE DEALERS AGAINST THE SAID REJECTION. THE AMOUNT COLLECTED FROM T HE ASSESSEE ON ACCOUNT OF REJECTED GOODS FOR THE YEAR UNDER APPEAL WAS RS.10,80,207/ - . THE ASSESSEE EXPLAINED THAT IT HAD RETURNED 727 BAGS OF GAI CHAP ZARDA AND EXCEPT THE SAID GOODS RETURNED NO OTHER CASH PAYMENT ON ACCOUNT OF REJECTED GOODS WAS MADE BY THE ASSESSEE. THE ASSESSING OFFICER, IN VIEW OF THE STATEMENT OF SHRI RAJESH O. MALPANI, MADE AN ADDITION OF RS.10,80,207/ - IN THE HANDS OF THE ASSESSEE. 8. BEFORE THE CIT(A), THE CASE OF THE ASSESSEE WAS THAT IT HAD NOT MADE THE SAID PAYMENT. FURTHER, NO AGREEMENT HAS BEEN FOUND BETWEEN THE SAID CONCERN AND THE DEALERS TOWARDS ALLEGED PAYMENT TO BE MADE FOR NON - FULFILLMENT OF TARGETS BY THE DEALERS. ENTIRE CONTENTION RAISED BY THE ASSESSEE WAS WHERE THE CONCERNED PERSON HAD ADMITTED THE TRANSACTION FOUND IN THE SEIZED MATERIAL AND HAD OFFERED THE SAME TO TAX AND PAID DUE TAXES, THEN THERE WAS NO QUESTION OF ADDITION IN RESPECT OF SAID TRANSACTION IN THE HANDS OF THE THIRD PARTY. THE CIT(A) FORWARDED THE SUBMISSIONS OF THE ASSESSEE TO THE A.O. WHO SUBMITTED THE REMAND REPORT. THE ASSESSEE FILED COUNTER COMMENTS AND STATED THAT THE A.O. HAD FAILED TO GIVE COPIES OF THE STATEMENT RECORDED OF SHRI RAJESH O. MALPANI, AND THE ALLEGED PAPERS FOUND DURING THE COURSE OF SEARCH. THE ASSESSEE ALSO ASKED FOR CROSS EXAM INATION OF SHRI RAJESH O. MALPANI. THE A.O., IN THE REMAND PROCEEDINGS, PROVIDED THE COPY OF THE STATEMENT AND OTHER PAPERS TO THE ASSESSEE AND ALSO ALLOWED CROSS EXAMINATION OF SHRI RAJESH O. MALPANI, WHICH WAS CARRIED OUT ON 1 ST JANUARY 2013. THE RELEVAN T PORTION OF THE SAID STATEMENT IS REPRODUCED AT PAGE - 9 AND 10 OF THE APPELLATE ORDER. THE ASSESSING OFFICER, IN HIS REPORT DATED 4 TH 10 OF THE APPELLATE ORDER. THE ASSESSING OFFICER, IN HIS REPORT DATED 4 TH JANUARY 2013, STATED THAT SHRI RAJESH O. MALPANI, IN REPLY TO QUESTION NO.9, DENIED TO HAVE RECEIVED ANY CASH FROM THE ASS ESSEE. HOWEVER, IN REPLY TO QUESTION NO.10, HE HAD STATED THAT CASH WAS COLLECTED BY THEIR FIELD STAFF FROM BEED AREA. THE A.O. FURTHER STATED THAT SHRI RAJESH O. MALPANI, HAD ACCEPTED THAT THEY HAVE RECORDED THE BUSINESS TRANSACTION MADE WITH THE ASSESSEE IN THEIR BOOKS OF ACCOUNT AND THE AMOUNTS NOT RECORDED IN THE BOOKS OF ACCOUNT HAVE BEEN OFFERED TO TAX AS INCOME. THE LD. CIT(A), VIDE PARA - 14.2, OBSERVED THAT IN VIEW OF THE ABOVE SPECIFIC REPLIES GIVEN BY SHRI RAJESH O. MALPANI, IT CANOT BE SAID THAT THE ALLEGED CASH PAYMENT OF RS.16,51,445/ - AND RS.10,80,207/ - HAS BEEN MADE BY THE APPELLANT TO SRPL. IT HAS ALSO BEEN POINTED OUT BY SHRI RAJESH O. MALPANI IN REPLY TO Q.NO.17 AS UNDER: - QEU. NO.17 DO YOU HAVE ANYTHING TO SAY ANYTHING MORE. ANS. I AM SU BMITTING THE COPY OF ASSESSMENT ORDER PASSED IN THE CASE OF ONE OF OUR DEALER MR. OMPRAKASH JAGANNATH LADDHA, PROP. TULSI SALES CORPORATION, SOLAPUR, WHERE THE ASSESSMENT IS PASSED BY CENTRAL CIRCLE, PUNE WITHOUT MAKING ANY ADDITION ON ACCOUNT OF OUR DISCL OSURE. THE A.O. IN HIS REPORT HAS NOT COMMENTED ON THE REPLY GIVEN BY RAJESH O. MALPANI, TO THE ABOVE Q.NO.17. THE CIT(A) IN VIEW THEREOF DELETED THE ADDITION AGAINST WHICH THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. ITA NO. 632 /PN/201 4 HEMANT INDARCHAND BORA 5 9. WE FIND THAT SIMILAR ISSUE O F CASH PREMIUM IN RESPECT OF GAI CHAP ZARDA AROSE BEFORE THE TRIBUNAL IN THE CASE OF ITO V/S M/S. PARAKH AGENCY IN ITA NO.1112/PN/2013, RELATING TO ASSESSMENT YEAR 2009 - 10. THE TRIBUNAL, VIDE ORDER DATED 9 TH SEPTEMBER 2014, CONSIDERED THE FACTS IN BRIEF VI DE PARA - 3 AND 3.1 AS UNDER: - 3. FACTS OF THE CASE, IN BRIEF, ARE THAT A SEARCH AND SEIZURE ACTION U/S.132 OF THE I.T. ACT WAS CARRIED ON IN THE CASES OF MALPANI GROUP OF SANGAMNER ON 06 - 10 - 2009. DURING THE COURSE OF SAID SEARCH, A STATEMENT ON OATH OF S HRI RAJESH O. MALPANI WAS RECORDED U/S.132(4) ON 03 - 12 - 2009. IN THE STATEMENT, THE DEPONENT HAS STATED THAT THE MALPANI GROUP HAS COLLECTED CASH PREMIUM UPTO RS.95/ - PER BAG IN RESPECT OF SALE OF GAI CHAP ZARDA FROM SOME OF THE DEALERS IN F.YS. 2008 - 09 AN D 2009 - 10 WHICH IS UNACCOUNTED INCOME OF SARGAM RETAIL PVT. LTD. FURTHER, IN THE STATEMENT RECORDED U/S.132(4) ON 03 - 12 - 2009, SHRI RAJESH O. MALPANI HAS GIVEN THE DETAILS OF CASH COLLECTED FROM THE DEALER ON SALE OF GAICHAP ZARDA AS UNDER : A.Y. 2009 - 1 0 A.Y. 2010 - 11 TOTAL UNACCOUN - TED CASH COLLECTED (RS.) NAME OF DEALER QTY.(BAGS) UNACCOUNTED CASH COLLECTED (RS) QTY.(BAGS) UNACCOUN TED CASH COLLECTED (RS.) PARAKH AGENCIES NANDGAON PAN AAFFP6717L 8478 777190 11190 1103915/ - 1881105/ - IN VIEW OF THE ABOVE INFORMATION THE AO HAS ASKED THE ASSESSEE TO IN VIEW OF THE ABOVE INFORMATION THE AO HAS ASKED THE ASSESSEE TO EXPLAIN AS TO WHETHER THE ABOVE AMOUNT OF RS.7,77,190/ - HAS BEEN REFLECTED IN THE BOOKS OF ACCOUNT AND TO EXPLAIN THE NATURE OF THE SAID TRANSACTIONS. IN RESPONSE TO THIS QUERY OF THE AO, T HE ASSESSEE FILED DETAILS OF TRANSACTIONS WITH SARGAM RETAILS PVT. LTD. SANGAMNER AND DENIED ANY SUCH PAYMENT OF RS.7,77,190/ - TO SARGAM RETAILS PVT. LTD. SANGAMNER. HOWEVER, THE AO REJECTED THE REPLY OF THE ASSESSEE AND MADE THE ADDITIONS OF RS.7,77,190/ - BY RELYING ON THE STATEMENT RECORDED U/S 132(4) OF SHRI RAJESH O. MALPANI, DIRECTOR OF SARGAM RETAILS PVT. LTD. DURING SEARCH ACTION IN THE CASE OF THE SAID CO. IN SUPPORT OF THIS ADDITION, THE AO RELIED ON THE DECISION OF HON'BLE ITAT, DELHI IN THE CASE OF HERSH WIN CHADHA VS. DDIT. THE AO, RELYING ON THE ABOVE DECISION OBSERVED THAT UNLIKE CRIMINAL PROCEEDINGS, THE CHARGE IS NOT REQUIRED TO BE PROVED BEYOND DOUBT IN THE CASE OF INCOME TAX PROCEEDINGS. THE TECHNICAL RULES CONTAINED IN THE INDIAN EVIDENCE ACT ARE NOT APPLICABLE IN THE INCOME TAX PROCEEDINGS. IN CLANDESTINE TRANSACTIONS, IT IS IMPOSSIBLE TO HAVE DIRECT EVIDENCE TO PROVE THE SAID TRANSACTIONS. THE AO HAS TO ASSESS THE TAX LIABILITY CONSIDERING THE MATERIAL AVAILABLE ON RECORD, SURROUNDING CIRCUMSTANCES, PREPONDERANCE OF PROBABILITIES AND EVIDENCE AVAILABLE ON RECORD. 3.1 THE AO FURTHER NOTICED THAT DURING THE IMPUGNED YEAR THE ASSESSEE HAS TRANSACTED 8478 BAGS WHEREAS THE AMOUNT OF RS.7,77,190/ - HAS BEEN PAID TO S.R.P.L. TOWARDS PREMIUM PA ID IN CASH WHICH IS UNACCOUNTED. THE AO, THEREFORE, ASKED THE ASSESSEE TO ITA NO. 632 /PN/201 4 HEMANT INDARCHAND BORA 6 EXPLAIN AS TO WHY IT SHOULD NOT BE TREATED THAT IN RESPECT OF BALANCE QUANTITY OF 3122 BAGS THE PREMIUM @ 91.67 PER BAG, I.E. RS.2,80,193/ - WAS ALSO COLLECTED FROM THE MARKET AS UNAC COUNTED CASH AND RETAINED WITH HIMSELF AS UNACCOUNTED INCOME. THE ASSESSEE DENIED ANY SUCH COLLECTION AND REPLIED TO THE ASSESSING OFFICER ACCORDINGLY. THE ASSESSING OFFICER, HOWEVER, REJECTED THE REPLY OF THE ASSESSEE AND MADE ADDITION OF RS.2,86,193/ - O N ACCOUNT OF UNACCOUNTED INCOME. 10. THE TRIBUNAL, THEREAFTER, DELETED THE ADDITION UPHOLDING THE ORDER OF THE CIT(A) OBSERVING AS UNDER: - 7. WE HAVE CONSIDERED THE ARGUMENTS ADVANCED BY THE LD. DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL ON R ECORD. WE FIND THE ASSESSING OFFICER, BASED ON THE STATEMENT RECORDED U/S.132(4) OF SHRI RAJESH O. MALPANI, DIRECTOR OF SARGAM RETAILS PVT. LTD. MADE ADDITION OF RS.7,77,190/ - ON THE GROUND THAT SARGAM RETAILS PVT. LTD. HAS COLLECTED PREMIUM ON SALE OF GA ICHAP ZARDA FROM THE DEALERS IN CASH BY CHARGING LESS PRICE OF THE PRODUCT TO THE DEALERS. WE FIND THE LD.CIT(A) DELETED THE ADDITION MADE BY THE ASSESSING OFFICER ON THE GROUND THAT THE ASSESSING OFFICER HAS NOT ALLOWED CROSS EXAMINATION OF SHRI RAJESH O . MALPANI, DIRECTOR OF SARGAM RETAILS PVT. LTD. BY THE ASSESSEE ALTHOUGH IT WAS SPECIFICALLY RAISED BEFORE THE ASSESSING OFFICER. HE FURTHER HELD THAT ADDITION CANNOT BE MADE ON THE BASIS OF A STATEMENT RECORDED ON OATH UNLESS OPPORTUNITY OF CROSS EXAMINA TION IS GIVEN TO THE ASSESSEE. THE LD. CIT(A) HAS FURTHER OBSERVED THAT EVEN IF IT IS ACCEPTED THAT ASSESSEE HAS PAID THE EXCESS AMOUNT TO SARGAM RETAILS PVT. LTD., SAME ARE COLLECTED ON BEHALF OF SARGAM RETAILS PVT. LTD. FROM VARIOUS RETAILERS AND THE RE SULTANT INCOME OF THE ASSESSEE ON THESE TRANSACTIONS WILL BE NIL. THIS REASONED FINDING BY THE LD.CIT(A) THESE TRANSACTIONS WILL BE NIL. THIS REASONED FINDING BY THE LD.CIT(A) IN OUR OPINION DOES NOT SUFFER FROM ANY INFIRMITY IN ABSENCE OF ANY CONTRARY MATERIAL BROUGHT TO OUR NOTICE BY THE LD. DEPARTMENTAL REPRESENTATIVE. T HEREFORE, THE ADDITION OF RS.7,77,190/ - DELETED BY THE LD. CIT(A) IN OUR OPINION IS JUSTIFIED AND THE GROUND OF APPEAL NO.1 BY THE REVENUE IS DISMISSED. 7.1 SO FAR AS THE ADDITION OF RS.2,86,193/ - IS CONCERNED, WE FIND THE ASSESSING OFFICER MADE THE ADDIT ION ON THE BASIS OF DIFFERENCE BETWEEN THE TOTAL BAGS TRANSACTED AND THE BAGS IN RESPECT OF WHICH THE ADDITION HAS BEEN MADE AT 8478 BAGS. THE LD.CIT(A) HAS GIVEN A FINDING THAT THIS ADDITION OF THE ASSESSING OFFICER IS NOT SUPPORTED BY ANY EVIDENCE. THE LD. DEPARTMENTAL REPRESENTATIVE ALSO COULD NOT BRING ANY MATERIAL TO CONTROVERT THE FINDING GIVEN BY THE LD.CIT(A) WHICH ACCORDING TO THE LD.CIT(A) IS BASED ON ASSUMPTION, PRESUMPTION AND SUSPICION. IN VIEW OF THE ABOVE, THE ORDER OF THE CIT(A) DELETING THE ADDITION OF RS.2,86,193/ - IN OUR OPINION, ALSO DOES NOT SUFFER FROM ANY INFIRMITY. ACCORDINGLY, THE SAME IS UPHELD. GROUND OF APPEAL NO.2 BY THE REVENUE IS ACCORDINGLY DISMISSED. 7.2 SO FAR AS THE GROUNDS OF APPEAL NO.3 IS CONCERNED, WE FIND FROM TH E REMAND REPORT OF THE ASSESSING OFFICER DATED 05 - 03 - 2013 THAT HE HAS ACCEPTED THAT NO CROSS EXAMINATION OF SHRI RAJESH O. MALPANI WAS ALLOWED TO THE ASSESSEE DURING ASSESSMENT PROCEEDINGS. THEREFORE, GROUND OF APPEAL NO.3 BY THE REVENUE IS DISMISSED. 1 1. THE FACTS AND ISSUE ARISING IN THE PRESENT APPEAL ARE IDENTICAL TO THE FACTS AND ISSUE BEFORE THE TRIBUNAL IN THE CASE OF M/S. PARAKH AGENCY (SUPRA) AND ITA NO. 632 /PN/201 4 HEMANT INDARCHAND BORA 7 FOLLOWING THE SAME PARITY OF REASONING, WE UPHOLD THE ORDER OF THE LD. CIT(A) IN DELETING THE ADDIT ION OF RS.16,51,445/ - AND RS.10,80,207/ - . THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE THUS DISMISSED. 7. THE ISSUE RAISED IN THE PRESENT APPEAL IS IDENTICAL TO THE ISSUE BEFORE THE TRIBUNAL IN SHRI SHRENIK SHANTILAL DHADIWAL VS. TRO (SUPRA), M/S. BAL AJI AGENCIES VS. ITO (SUPRA), ITO VS. SHRI DINESH SATYANARAYAN TAWANI (SUPRA) AND ITO VS. SHRI SANJAY MOHANLAL CHHAJED (SUPRA) AND FOLLOWING THE SAME PARITY OF REASONING, WE DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION MADE ON ACCOUNT OF UNACCOUNTED CASH PAYMENT OF RS. 6,71,460 / - . THUS, THE GROUNDS OF APPEAL NO.2 TO 5 RAISED BY THE ASSESSEE ARE ALLOWED. 8 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED . ORDER P RONOUNCED ON THIS 9 TH DAY OF DECEMBER , 201 5 . SD/ - SD/ - (PRADIP KUMAR KEDIA) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 9 TH DECEMBER , 2015 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A) - I , NASHIK ; 4. / THE CIT - I , NASHIK ; 5. , , - / DR SMC , ITAT, PUNE; 6. / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE