JAYARAM SHETTY, MUMBAI V. ACIT CIR 25, MUMBAI

ITA 6342/MUM/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9385 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: I
• Next Hearing Date: 30-10-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 26-08-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NAVEEN GUPTA
• Assessee Lawyers: ASHOK J PATIL
• Keywords: Salary income; Document seized; Opportunity of being heard; Retraction; Revised return; Documents seized
• Section: 153A; 131; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES I, MUMBAI BEFORE SHRI DINESH KUMAR AGARWAL (J.M.) AND SHRI N.K. BILLAIYA (A.M.) ITA NO. 6342/MUM /2010 ASSESSMENT YEAR : 2004-05 JAYARAM SHETTY, 215, B.C.R. SHED, AMROLIWALA COMPOUND, N.M. JOSHI MARG, MUMBAI 400 013. PAN AADPS5939D VS. ASSTT. COMMISSIONER OF INCOME- TAX- CENTRAL CIRCLE 24 & 26, 6 TH FLOOR, AAYAKAR BHAVAN, ROOM NO. 404, M.K. ROAD, MUMBAI - 20. (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI ASHOK J. PATIL DEPARTMENT BY : SHRI NAVEEN GUPTA DATE OF HEARING 08-11-2012 DATE OF PRONOUNCEMENT 21-11-2012 O R D E R PER DINESH KUMAR AGARWAL, J.M. THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DTD. 14-6-2010 PASSED BY THE LD. CIT(A) 39, MUMBA I FOR THE A.Y. 2004-05. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE A SSESSEE AN INDIVIDUAL DERIVES INCOME FROM SALARY, HOUSE PROPERTY, BUSINES S AND OTHER SOURCES. A SEARCH OPERATION U/S 132 OF THE INCOME TAX ACT, 1 961 (THE ACT) WAS CONDUCTED ON 11-9-2007 AT THE OFFICE PREMISES OF TH E ASSESSEE. THE ASSESSEE FILED REVISED RETURN OF INCOME DECLARING T OTAL INCOME OF RS. ITA NO. 6342/MUM/2012 2 4,40,304/-. NOTICES U/S 143(2)/142(1) R.W.S. 153A OF THE ACT ALONG WITH DETAILED QUESTIONNAIRE WERE ISSUED TO THE ASSESSEE. DURING THE COURSE OF ASSESSMENT PROCEEDING, THE A.O. OBSERVED THAT OUT O F SEIZED PAPERS, IT WAS INFERRED THAT THE ASSESSEE HAD ADVANCED THE MON EY OF RS. 69,000/- TO MEMBERS OF THE CLUB AGAINST THE SECURITY OF JEWE LLERY, THE SAME WAS OFFERED TO TAX IN THE DECLARATION OF INCOME AND REV ISED RETURN FILED BY THE ASSESSEE. APART FROM THIS, THE ASSESSEE HAD ALSO AD MITTED IN HIS STATEMENT U/S 131 OF THE ACT ON 5-11-2007 THAT HE H AD MADE PAYMENT OF RS. 66,23,000/- AS PER PAGE NO. 4 OF SEIZED DIARY A ND THE SAME HIS UNDISCLOSED INCOME OF THE RELEVANT FINANCIAL YEAR. THE A.O. FURTHER OBSERVED THAT THE ASSESSEE VIDE LETTER DTD. 31-12-2 007 SUBMITTED THAT THE PAYMENT OF RS. 66.23 LACS WAS SUPPOSED TO BE MA DE ON 29-3-2004, HOWEVER, BECAUSE OF PAUCITY OF FUND, HE COULD NOT P AY THE ENTIRE AMOUNT AND OUT OF THAT HE PAID RS. 30 LACS ON 30-4-2004 AS MENTIONED ON PAGE NO. 4 OF THE DIARY. THE A.O. FURTHER OBSERVED THAT DURING THE ASSESSMENT PROCEEDING, THE RECIPIENT I.E. MR. ASHOK PANDIT HAS ALSO SUBMITTED AN AFFIDAVIT CONFIRMING THAT HE HAD NOT RECEIVED THE S AID AMOUNT AND THIS WAS A PROPOSAL GIVEN BY HIM FOR CONSTRUCTION OF REA R PART OF THE PROJECT BUT DUE TO NON-AVAILABILITY OF FUND, THE AMOUNT REC EIVED OF RS. 30 LACS ON 30-4-2004 IN PART HAD BEEN RETURNED BACK TO JAYARAM SHETTY AS HE HAD DROPPED THE PLAN OF CONSTRUCTION AND SOLD THE PROJE CT TO MERMIT DEVELOPERS P. LTD. IT WAS, THEREFORE, SUBMITTED THA T THE ABOVE AMOUNT SHOULD BE DELETED FROM THE UNDISCLOSED INCOME. HOW EVER, THE A.O. DID ITA NO. 6342/MUM/2012 3 NOT ACCEPT THE ASSESSEES EXPLANATION. HE OBSERVED THAT IT HAS NO BASIS AT ALL. IT SEEMS TO BE AN AFTER THOUGHT IN ORDER T O EVADE TAX. HE FURTHER OBSERVED THAT THE ASSESSEE AFTER A TIME GAP OF ALMO ST FOUR MONTHS FROM THE SEARCH HAS MADE AN ATTEMPT TO FABRICATE A FALSE AND BASELESS STORY JUST TO HIDE THE TRUTH. THE A.O. FURTHER OBSERVED THAT THE ASSESSEE IN HIS STATEMENT HAS REPEATEDLY STATED THAT HE HAS PAID SO ME ADVANCE INCLUDING RS. 25 LACS OF SELF ASSESSMENT TAX FOR A. Y. 2004-05 AND ACCORDINGLY THE A.O. ADDED THE AMOUNT OF RS. 66,23, 000/- AS INCOME FROM OTHER SOURCES TO THE TOTAL INCOME OF THE ASSES SEE. ON APPEAL, THE LD. CIT(A) AFTER CONSIDERING THE ENTRIES RECORDED IN TH E DIARY, STATEMENT OF THE ASSESSEE, AFFIDAVIT OF MR. PANDIT FILED BY THE ASSESSEE, RETRACTION STATEMENT OF THE ASSESSEE AND THE ASSESSEES SUBMIS SION OBSERVED THAT FROM ALL THESE FACTS IT IS CLEAR THAT THE APPELLANT HAS MADE PAYMENTS AND ACCEPTED THE TRUTH IN THE STATEMENT BUT LATER ON AF TER SEEING THAT THE WORD PAID IS MISSING, THE APPELLANT WANTS TO MAKE A CLAIM THAT THE PAYMENT IS NOT MADE, WHICH CANNOT BE ACCEPTED. HE FURTHER OBSERVED THAT THE AFFIDAVIT OF MR. PANDIT IS NOT RELIABLE AS THE SAME IS CONTRARY TO THE FACTS AND SELF SERVING DOCUMENT WHICH HAS NO EV IDENTIAL VALUE AND ACCORDINGLY UPHELD THE ADDITION OF RS. 66,23,000/- MADE BY THE A.O. 3. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US TAKING FOLLOWING GROUND OF APPEAL :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE ASSESSING OFFICER HAS ERRED IN TREATING AN AMOUNT O F RS. 66,33,000/- ITA NO. 6342/MUM/2012 4 BEING A PROPOSAL AMOUNT TO ARCHITECT AS AN INCOME W ITHOUT APPRECIATING THE FACTS OF THE CASE IN ITS PROPER PERSPECTIVE. 4. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE A SSESSEE SUBMITS THAT THE STATEMENT OF THE ASSESSEE WAS RECORDED U/S 131 OF THE ACT ON 5- 11-2007. THE COPIES OF THE SEIZED DOCUMENTS EXCEPT THE STATEMENT RECORDED ON 5-11-2007 WERE PROVIDED BY THE DEPARTME NT TO THE ASSESSEE ON 28-12-2007. ON VERIFYING THE SAME, THE ASSESSEE MADE A RETRACTION WITHIN THREE DAYS OF RECEIPT OF THE COPIES OF THE S EIZED DOCUMENTS I.E. ON 31-12-2007 OR 55 DAYS FROM THE DATE OF GIVING THE S TATEMENT U/S 131 OF THE ACT, COPY OF WHICH IS APPEARING AT PAGE 24 OF T HE ASSESSEES PAPER BOOK. HE FURTHER SUBMITS THAT DURING THE ASSESSMEN T PROCEEDING IT WAS AGAIN SUBMITTED THAT THE NOTING MADE ON 29-3-2004 W AS AN ESTIMATE TOWARDS CONSTRUCTION TO BE GIVEN TO MR. ASHOK PANDI T BUT THE SAME WAS NOT PAID ON THE SAID DAY TO MR. PANDIT AND WAS PAID RS. 30 LACS ON 30-4-2004 AS THE ASSESSEE DID NOT HAVE SUFFICIENT F UNDS TO PAY THE ENTIRE AMOUNT TO MR. PANDIT. IT WAS POINTED OUT THAT THE ASSESSEE ALWAYS WROTE KOTTAHANA (MEANS GIVEN IN KANADA) EVERY TIME WHEN H E MADE A PAYMENT, AND, SINCE, THE PAYMENT WAS NOT MADE, THE WORD KOT TAHANA IS NOT THERE. HE FURTHER SUBMITS THAT MR. PANDIT WAS TO COMMENCE THE CONSTRUCTION ONLY ON RECEIPT OF THE ENTIRE AMOUNT AND SINCE THE ASSESSEE COULD NOT PAY THE ENTIRE AMOUNT, MR. PANDIT RETURNED RS. 30 LACS TO THE ASSESSEE ON 2-5-2007 AND THIS FACT WAS ALSO CONFIRMED BY MR. PA NDIT IN HIS AFFIDAVIT DTD. 22-10-2010 APPEARING AT PAGE 25 OF THE ASSESSE ES PAPER BOOK. HE FURTHER SUBMITS THAT THE ASSESSEE HAS OFFERED RS. 3 0 LACS AS AN INCOME ITA NO. 6342/MUM/2012 5 FOR A.Y. 2005-06 AS PER CHART OF COMPUTATION AND CO PY OF ASSESSMENT ORDER APPEARING AT PAGE 37 & 35 OF THE ASSESSEES P APER BOOK. HE FURTHER SUBMITS THAT, SUBSEQUENTLY, THE SAID PROJEC T WAS SOLD TO M/S MERMIT DEVELOPERS. IN THE LIGHT OF ALL THESE FACTS , THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT THE RETRACTION MADE BY THE AS SESSEE WAS A GENUINE AND BONAFIDE AND NOT AN AFTER THOUGHT SUPPORTED BY PROPER FACTS AND AFFIDAVIT OF MR. PANDIT. THE RELIANCE WAS ALSO PLA CED ON THE DECISION IN M. NARAYANAN AND BROS. V. ACIT (2011) 339 ITR 192 ( MAD) AND CBDT CIRCULAR NO. F. NO. 286/2/2003-IT(INV.II) DTD. 10-3 -2003 TO SHOW THAT UNDUE EMPHASIS SHOULD NOT BE PLACED ON RECORDED STA TEMENTS. HE, THEREFORE SUBMITS THAT THE ADDITION MADE BY THE A.O . AND SUSTAINED BY THE LD. CIT(A) BE DELETED. 5. ON THE OTHER HAND, THE LD. D.R. STRONGLY RELIED ON THE ORDER OF THE A.O. AND THE LD. CIT(A).THE RELIANCE WAS ALSO PLACE D ON T.S. KUMARASAMY VS. ACIT (1998) 65 ITD 188 (MAD.), CIT VS. HIGHWAY CONSTRUCTION CO. (P.) LTD. (1996) 217 ITR 234 (GAUHATI) AND HOTEL KIRAN V . ACIT (2002) 82 ITD 453 (PUNE). 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FI ND THAT THE FACTS ARE NOT IN DISPUTE INASMUCH AS IT IS ALSO NOT IN DISPUT E THAT THE STATEMENT OF THE ASSESSEE WAS RECORDED ON POST SEARCH I.E. ON 5- 11-2007 I.E. AFTER 55 ITA NO. 6342/MUM/2012 6 DAYS OF THE SEARCH CONDUCTED ON 11-9-2007. IN THE STATEMENT, THE ASSESSEE, INTER ALIA, STATED AS UNDER (P.B. PAGE NO . 7 & 8):- PAGE NO. 4: ON 30.4.2004 PAYMENT OF RS. 20 LAKHS W AS MADE BY ME TO CONTRACTOR AND RS. 10 LAKHS WAS PAID BY ME TO PANDI T ARCHITECT ON 30.4.2004. PAGE NO. 16: FOLLOWING PAYMENTS ARE MADE BY ME TOW ARDS BUILDING CONSTRUCTION IN FRONT OF MY BAR:- RS. 50 LAKHS - MHADA RS. 5 LAKHS - PANDIT SAHEB RS. 8.6 LAKHS - PANDIT SAHEB RS. 2 LAKHS - PANDIT SAHEB RS. 0.18 LAKHS - PANDIT SAHEB RS. 0.20 LAKH - PANDIT SAHEB RS. 0.25 LAKH - PANDIT SAHEB THE CONSTRUCTION IS ALMOST COMPLETED. THE PAYMENTS WERE MADE TO ONE MR. PANDIT SAHEB (ARCHITECT). THE NAME AND ADDRESS SHALL BE SUBMITTED BY ME. HOWEVER, VIDE LETTER DTD. 31-12-2007 APPEARING AT P AGE 24 OF THE PAPER BOOK, THE ASSESSEE HAS RETRACTED AS UNDER:- THE ABOVE PAYMENT WAS SUPPOSED TO BE MADE ON 29-3- 2004. HOWEVER, THESE AMOUNTS WERE WRONGLY INTERPRETED AS PAID BY Y OUR STAFF WHILE TAKING MY STATEMENTS. WHENEVER I PAY I WRITE IN TH E DIARY AS PAID WHICH IS EVIDENT FROM THE OTHER PAYMENTS MENTIONED ON OTH ER PAGES OF DIARIES. BECAUSE OF PAUCITY OF FUND, I COULD NOT PAID THE EN TIRE AMOUNT. OUT OF THAT, I PAID RS. 30 LACS ONLY ON 30-4-2004. I COUL D NOT MAKE THE PAYMENT OF REMAINING AMOUNT THEREFORE I SHELVED THE REAR PROJECT WHICH WAS TAKEN OVER BY MERMIT DEVELOPERS P. LTD. IN SUPPORT, THE ASSESSEE HAS ALSO FILED AFFIDAVIT D TD. 21-10-2009 OF SHRI ASHOK PANDIT WHICH READS AS UNDER:- ITA NO. 6342/MUM/2012 7 AFFIDAVIT I ASHOK PANDIT DEPONENT RESIDING AT I/I CHARKOPE HS G. SOCIETY PLOT NO. 109 SEC NO. 1 CHARKOPE KANDIVALI (W) MUMBAI 67 DO H EREBY SOLEMNLY AFFIRM, CONFIRM AND STATE ON OATH :- 1. THAT I HAD GIVEN A PROPOSAL FOR REAR PART OF DHA RAMSTHAL CONSTRUCTION A PROP CONCERN OWNED BY SHRI JAYARAM S HETTY. I HAD GIVEN FOLLOWING BREAK UP OF AMOUNT TO BE RECEIVED ON 29-0 3-2004 FROM HIM:- RS. 50 LACS RS. 5 LACS RS. 8.6 LACS RS. 2 LACS RS. 0.18 LACS RS. 0.20 LACS RS. 0.20 LACS 2. THAT OUT OF THAT, HE PAID A SUM OF RS. 30 LACS O NLY ON 30-4-2004. I WAS SUPPOSED TO COMMENCE THE ASSIGNMENT AFTER RE CEIVING THE ENTIRE AMOUNT. HE EXPRESSED HIS INABILITY TO MAKE FURTHER PAYMENT AND REQUESTED TO RETURN BACK THE AMOUNT PAID TO ME. HE TOLD ME THAT HE HAD SOLD THE PROJECT. AS PER TERMS AND CONDITIONS, I R ETURNED BACK THE AMOUNT OF RS.30 LACS TO JAYARAM SHETTY. 3. THAT, I AGAIN SOLEMNLY AFFIRM AND CONFIRM THAT I HAD NOT RECEIVED AN AMOUNT OF RS. 66.18 LACS FROM JAYARAM SHETTY. I RECEIVED A SUM OF RS. 30 LACS FROM JAYARAM SHETTY WHICH WAS RETURNED BACK TO HIM ON 2- 5-2004. SD/- DEPONENT DATE PLACE VERIFICATION I ASHOK PANDIT VERIFIED THE CONTENTS OF THE ABOVE M ENTIONED AFFIDAVIT ARE TRUE AND CORRECT AND NOTHING MATERIAL HAS BEEN CONC EALED. SD/- DEPONENT 7. THE CLAIM OF THE ASSESSEE IS THAT AFTER THE SEAR CH STATEMENT OF THE ASSESSEE WAS RECORDED AND THE ZEROX COPIES OF THE L OOSE PAPERS AND DIARY WERE GIVEN ON 28-12-2007 WITHOUT PROVIDING THE COPY OF THE STATEMENT. ITA NO. 6342/MUM/2012 8 THEREAFTER, THE ASSESSEE RETRACTED THE EARLIER STAT EMENT THAT BECAUSE OF PAUCITY OF FUND, THE ASSESSEE COULD NOT PAY THE ENT IRE AMOUNT, THEREFORE, THE AMOUNT OF RS. 66.23 LACS IF TAKEN AS UN-DISCLOS ED INCOME BE DELETED AND IN SUPPORT THE AFFIDAVIT OF MR. ASHOK PANDIT WA S ALSO FILED. PER CONTRA, THE CASE OF THE REVENUE IS THAT THE RETRACT ION LETTER FILED BY THE ASSESSEE IS AN AFTER THOUGHT WITHOUT ANY SUPPORTING MATERIAL AND THE AFFIDAVIT OF MR. ASHOK PANDIT IS SELF SERVING DOCUM ENT AND CONTRARY TO THE FACTS, THEREFORE, THE ADDITION MADE BY THE A.O. AFT ER RELYING ON THE STATEMENT OF THE ASSESSEE DTD. 5-11-2007 BE UPHELD. 8. AFTER CONSIDERING THE ENTIRETY OF FACTS AND CIRC UMSTANCES OF THE CASE IN THE LIGHT OF THE TWO DECISIONS OF THE TRIBU NAL (SUPRA) RELIED ON THE LD. D.R., WE FIND THAT IT IS NOT THE CASE OF THE AS SESSEE THAT THE STATEMENT RECORDED ON OATH ON 5-11-2007 WAS RECORDED INVOLUNT ARILY OR TENDERED UNDER COERCION OR DURESS. IT IS ALSO NOT THE CASE OF THE ASSESSEE THAT THE DIARY AND THE RELEVANT PAGE OF THE SAID DIARY DO NO T BELONG TO THE ASSESSEE. WE FURTHER FIND THAT EVEN IN THE RETRACT ION STATEMENT, THE ASSESSEE HAS NOT DENIED THAT THE CONSTRUCTION WAS N OT COMPLETED. MERELY BECAUSE THE ASSESSEE HAS FILED RETRACTION LE TTER ALONG WITH AFFIDAVIT OF MR. ASHOK PANDIT TO SHOW THAT THE ASSESSEE HAS N OT PAID SUCH AMOUNT DOES NOT MEAN THE ENTRIES RECORDED IN THE SEIZED MA TERIAL DO NOT BELONG TO THE ASSESSEE OR NO SUCH PAYMENT WAS MADE BY THE ASSESSEE. 9. IN M. NARAYANAN AND BROS (SUPRA) IT HAS BEEN HEL D (HEADNOTE): ITA NO. 6342/MUM/2012 9 HELD, ALLOWING THE APPEAL, THAT WHEN THE ASSESSEE H AD EXPLAINED THE STATEMENT MADE ON THE SECOND DAY OF THE SEARCH WITH MATERIALS THAT THE AMOUNTS OFFERED WERE THE LOANS TAKEN FROM THE RELAT IVES WHO WERE ALREADY ASSESSED ON THE AMOUNT ; APART FROM THIS, E VEN OTHERWISE, THE TRANSACTIONS RELATING TO PAWN BROKING, RELATED TO Y EARS PRIOR TO THE DATE OF ASSESSMENT AND HAD NO RELEVANCE TO THE YEAR UNDE R CONSIDERATION. THE CASE OF THE ASSESSEE ALSO STANDS SUPPORTED BY THE C IRCULAR DATED MARCH 10, 2003, OF THE CENTRAL BOARD OF DIRECT TAXES, WHI CH HAD GIVEN CATEGORICAL DIRECTIONS TO THE OFFICERS, WHO WERE EN TRUSTED WITH THE JOB OF ASSESSMENT THAT UNDUE EMPHASIS SHOULD NOT BE PLACED ON THE STATEMENTS RECORDED. WHEREAS IN THE PRESENT CASE BEFORE US, THE STATEMEN T OF THE ASSESSEE WAS NOT RECORDED ON THE DATE OF SEARCH BUT THE SAME WAS RECORDED AFTER 55 DAYS OF THE SEARCH AND THE ASSESSEE WHILE RETRACTIN G HAS NOT PLACED ANY SUPPORTING MATERIAL TO SHOW THAT THE CONSTRUCTION W AS NOT COMPLETED, THEREFORE, THE DECISION RELIED ON BY THE LD. COUNSE L FOR THE ASSESSEE IS DISTINGUISHABLE AND NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. 10. IN HIGHWAY CONSTRUCTION CO. (P.) LTD. (SUPRA) I T HAS BEEN HELD (HEADNOTE) : HELD, (I) THAT THE DEPARTMENT'S APPEAL WAS ONLY IN RESPECT OF RS. 48,896. THE ASSESSEE'S APPEAL WAS ON SOME OTHER GRO UNDS ALSO. THEREFORE, THE TRIBUNAL WAS JUSTIFIED IN TAKING UP THE APPEAL AND PASSING THE ORDER; (II) THAT THE TRIBUNAL WAS JUSTIFIED IN FOLLOWING T HE DECISION IN S. MUBARIK SHAH'S CASE [1977] 110 ITR 217 (J&K); (III) THAT THE CLAIM OF THE ASSESSEE WAS THAT IT WA S AN INDUSTRIAL COMPANY. THE INCOME-TAX OFFICER FOLLOWING A DECISION OF THE APPELLATE ASSISTANT COMMISSIONER FOR THE ASSESSMENT YEAR 1973-74 REJECT ED THE CONTENTION. THE SPECIAL BENCH CONSTITUTED FOR THE PURPOSE SET A SIDE THE ORDER PASSED BY THE INCOME-TAX OFFICER AND REFERRED THE MATTER B ACK TO THE INCOME-TAX OFFICER FOR RECONSIDERATION IN THE LIGHT OF THE DEC ISION GIVEN BY THE SPECIAL BENCH. THE ORDER OF THE TRIBUNAL COULD NOT BE SAID TO BE ILLEGAL AND WITHOUT JURISDICTION. ITA NO. 6342/MUM/2012 10 HOWEVER, THE ISSUE BEFORE US IS ENTIRELY DIFFERENT , THEREFORE, THE DECISION RELIED ON BY THE LD. D.R. IS DISTINGUISHABLE AND NO T APPLICABLE TO THE FACTS OF THE PRESENT CASE. 11. HOWEVER, FROM THE DETAILS OF THE PAYMENT MADE O N 29-3-2004 (SUPRA) WE FIND THAT OUT OF RS. 66.23 LACS, RS. 50 LACS WERE PAID TO MHADA, WHICH IS A STATUTORY BODY. THERE IS NO MATE RIAL ON RECORD TO SHOW AS TO WHETHER THE ASSESSEE HAS MADE SUCH PAYME NT TO MHADA. EVEN THE A.O. HAS NOT VERIFIED FROM MHADA THAT THE SAID PAYMENT WAS ACTUALLY MADE TO THEM. THEREFORE, IN THE INTEREST O F JUSTICE, WE CONSIDER IT FAIR AND REASONABLE THAT TO THE LIMITED EXTENT OF T HE PAYMENT OF RS. 50 LACS, THE MATTER SHOULD GO BACK TO THE FILE OF THE A.O. AND ACCORDINGLY WE SET ASIDE THE ORDER PASSED BY THE REVENUE AUTHORITI ES ON THIS LIMITED ISSUE AND SEND BACK THE MATTER TO THE FILE OF THE A .O. TO EXAMINE THE SAME AFRESH IN THE LIGHT OF OUR OBSERVATION HEREINA BOVE AND ACCORDING TO LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE GROUND TAKEN BY THE ASSESSEE IS, THER EFORE, PARTLY ALLOWED FOR STATISTICAL PURPOSE. 12. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 21-11-2012. SD/- (N.K. BILLAIYA ) ACCOUNTANT MEMBER SD/- (DINESH KUMAR AGARWAL) JUDICIAL MEMBER MUMBAI, DATED : 21-11-2012. ITA NO. 6342/MUM/2012 11 RK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)- 39, MUMBA I 4. COMMISSIONER OF INCOME TAX CENTRAL II, MUMBAI . 5. DEPARTMENTAL REPRESENTATIVE, BENCH I, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI