ACIT CC-44, MUMBAI V. ANUJ JITENDRA MEHTA, MUMBAI

ITA 6399/MUM/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8968 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 30-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: USHA S NAIR
• Keywords: Gift; Income from undisclosed sources
• Section: 56(2); 80G; 68; 56

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A BENCH BEFORE SHRI B.R.MITTAL(JUDICIAL MEMBER) AND SHRI B.RAMAKOTAIAH (ACCOUNTANT MEMBER) ITA NO.6399/MUM/2010 ASSESSMENT YEAR: 2006-07 ACIT, CENT. CIRCLE-44, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI. ANUJ JITENDRA MEHTA, 2601, SHIV TAPI, 26 TH FLOOR, HARISHCHANDRA GOREGAOKAR MARG,GAMDEVI, MUMBAI-007 PA NO.AJUPM 8680 (APPELLANT) VS. (RESPONDENT) APPELLANT BY : MS USHA S NAIR RESPONDENT BY: SHRI VIJAY MEHTA DATE OF HEARING: 23.8.2012 DATE OF PRONOUNCEMENT: 5 . 9 .2012 ORDER PER B.R.MITTAL, JM: THE DEPARTMENT HAS FILED THIS APPEAL FOR ASSESSMEN T YEAR 2006-07 AGAINST ORDER DATED 17.6.2010 OF LD CIT(A) -38, MUMBAI DISPUTIN G THE ORDER OF LD CIT(A) IN DELETING ADDITION OF RS.98,56,827 MADE BY THE AO ON ACCOUNT OF GIFT OF IMDS UNDER SECTION 56(2)V) OF THE ACT. 2. THE RELEVANT FACTS GIVING RISE TO THIS APPEAL AR E THAT ASSESSEE RECEIVED GIFT IN THE FORM OF IMD OF FACE VALUE OF US$ 1,50,000 FROM MRS HANSA AGARWAL, NRI, RESIDING AT SHARJAH ON 25.9.2005. THEREAFTER, THE ASSESSEE PRE MATURELY ENCASHED THE SAID IMD ON 5TH OCTOBER, 2005 AND RECEIVED MATURITY AMOUNT OF US$ 2,22,452 EQUIVALENT TO INR 98,56,827. THE AO STATED THAT THE ASSESSEE UTILIZE D THE UNACCOUNTED INCOME OF GROUP COMPANY TO OBTAIN A NON-GENUINE GIFT. THE AO ALSO C ONTENDED THAT GIFT OF IMDS IS EQUIVALENT TO GIFT OF MONEY AND THUS INVOKED THE PR OVISIONS OF S. 56(2)(V) OF THE ACT AND MADE AN ADDITION TO THE TOTAL INCOME OF THE ASSESSE E. THE AO MADE THE ADDITIONS ON THE ITA NO.6399/MUM/2010 ASSESSMENT YEAR: 2006-07 2 GROUND THAT THE STATUS OF IMDS WITH THE FACILITY OF PREMATURE ENCASHMENT AVAILABLE WAS ON PAR WITH THE LEGAL STATUS OF A BANK FIXED DEPOSI T AND HELD THAT TREATING THE BANK FIXED DEPOSITS AS NOT MONEY WOULD BE AN ABSURD INTE RPRETATION AND WOULD DEFEAT THE VERY PURPOSE OF THE ENACTMENT. IN RESPECT OF THE IN TEREST ON THE IMDS, THE AO HELD THAT, THAT WHEN A-GIFT IS BROUGHT TO TAX UNDER SECTION 56 (2)(V) OF THE ACT, TAXING THE PRINCIPAL AMOUNT AND EXEMPTING INTEREST WOULD BE A TRAVESTY O F LAW. HE ALSO MADE OBSERVATIONS THAT THE DONOR AND HER FAMILY MEMBERS HAD NEVER IN THE PAST GIVEN ANY GIFT TO ANY OF THE FAMILY MEMBERS OF THE ASSESSEE AND THAT GIVING OF THE GIFT AT A TIME WHEN THE FAMILY OF THE ASSESSEE HAD EARNED HUGE UNACCOUNTED MONEY F ROM CONSTRUCTION BUSINESS CANNOT BE PURELY CO-INCIDENTAL. THE ABOVE FACTS HAVE BEE N SUMMARIZED BY LD CIT(A) AT PAGE 3 OF THE IMPUGNED ORDER. 3. LD CIT (A) HAS STATED THAT ASSESSEE SUBMITTED BE FORE HIM THAT HE FURNISHED VARIOUS DOCUMENTARY EVIDENCES TO ESTABLISH THE GENU INENESS OF THE AFORESAID GIFT DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THAT THE ASS ESSEE FURNISHED VARIOUS EVIDENCES DURING THE COURSE OF ASSESSMENT PROCEEDINGS TO ESTA BLISH THE GENUINENESS OF THE AFORESAID GIFTS SUCH AS; (A) DETAILS OF GIFT GIVING NAME AND ADDRESS OF DO NOR, ETC. (B) COPY OF AFFIDAVIT OF THE DONOR, MRS. HANSA AGAR WAL SWORN AT THE CONSULATE GENERAL OF INDIA, DUBAI CONFIRMING THE FACT OF GIFT . (C) LETTER ISSUED BY STATE BANK OF INDIA RELATING T O INVESTMENTS OF THE DONOR. IT WAS FURTHER CONTENDED BEFORE LD CIT(A) THAT ASSE SSEE HAD RECEIVED GIFT OF IMDS AND THAT THE PROVISIONS OF S. 56(2)(V) OF THE ACT WERE NOT APPLICABLE TO GIFT RECEIVED IN KIND. ASSESSEE CONTENDED THAT COMPLETE DETAILS OF THE GI FTS WERE FURNISHED BEFORE THE AO TO ESTABLISH THE GENUINENESS OF GIFT AND CREDITWORTHIN ESS OF THE DONOR. THAT ASSESSEE FURNISHED CONFIRMATION OF GIFT FROM THE DONOR MENTI ONING THE DETAILS OF THE LONG- STANDING FAMILY RELATIONS, WHICH ESTABLISH THE GENU INENESS AND THE REASON FOR THE GIFT. LD CIT(A) HAS STATED THAT IT WAS SUBMITTED BEFORE HIM THAT SECTION 56(2)(V) APPLIES ONLY IN A CASE WHERE ANY MONEY IS GIVEN WITHOUT CONSIDERATI ON. THAT IMDS DUE TO ITS NATURE AND THE TERMS AND CONDITIONS ATTACHED TO , IMDS, TH OUGH CONVERTIBLE INTO MONEY, IS NOT MONEY. THAT IMDS ARE PROMISSORY NOTES ISSUED BY ST ATE BANK OF INDIA UNDER A SCHEME APPROVED BY THE GOVERNMENT OF INDIA AND THAT IMDS C ANNOT BE EQUIVALENT TO MONEY ITA NO.6399/MUM/2010 ASSESSMENT YEAR: 2006-07 3 BECAUSE IMD CERTIFICATE IS REQUIRED TO BE PRESENTED TOGETHER WITH THE PRESCRIBED REPAYMENT APPLICATION FORM AT LEAST 60 DAYS PRIOR T O THE DUE DATE OF MATURITY FOR RECEIVING MONEY AGAINST THE CERTIFICATE. THE ENCASH MENT IS NOT PERMISSIBLE BEFORE THE EXPIRY OF 60 DAYS FROM THE EFFECTIVE DATE OF DEPOSI T AND THAT RESIDENT DONEES OF THE IMD CERTIFICATES CANNOT FURTHER TRANSFER IMD CERTIFICA TES. LD CIT(A) STATED THAT THE OTHER RESTRICTIONS IN RESPECT OF IMD CERTIFICATES WERE A LSO BROUGHT TO HIS NOTICE. THUS, IT WAS SUBMITTED THAT IMDS ARE NOT MONEY AS THE SAME CANNO T BE CURRENTLY ACCEPTED AS A MEDIUM OF EXCHANGE AND THAT THERE ARE NUMEROUS REST RICTIONS ON THE TRANSFER / GIFT OF IMDS UNLIKE IN THE CASE OF MONEY WHICH IS FREELY TRANSFERABLE. THAT IMDS AT BEST CAN BE TREATED AT PAR WITH ANY OTHER PROPERTY WHICH CAN BE CONVERTED INTO MONEY BUT BY ITSELF THEY CANNOT BE TREATED AS MONEY AND THAT THE Y ARE NOT FREELY EXCHANGEABLE AS MONEY AND LACK ALL THE CHARACTERISTICS OF MONEY IN TERMS OF FREE TRANSFERABILITY AND ACCEPTABILITY. THE ASSESSEE ALSO RELIED UPON THE DE CISION OF HONBLE SUPREME COURT IN THE CASE OF H.H. SRI RAMA VERMA V. CIT (187 ITR 308 ) (SC), WHEREIN THE MEANING OF THE EXPRESSION ANY SUM PAID IN THE CONTEXT OF DEDUCTI ON U/S. 80G OF THE ACT CAME UP FOR CONSIDERATION. THE HONBLE APEX COURT OBSERVED THAT DONATIONS MAY BE MADE BY SUPPLYING GOODS OF VARIOUS KINDS INCLUDING BUILDING , VEHICLE OR ANY OTHER TANGIBLE PROPERTY BUT SUCH DONATIONS, THOUGH CONVERTIBLE IN TERMS OF MONEY, DO NOT FALL WITHIN THE SCOPE OF SECTION 80G(2)(A) ENTITLING AN SSESSE E TO DEDUCTION. RELYING UPON THE RATIO LAID BY HONBLE SUPREME COURT, LD CIT(A) HAS STATED THAT IT WAS SUBMITTED BEFORE HIM THAT WHAT HAS BEEN GIFTED IS IMD WHICH IS MERELY CO NVERTIBLE INTO MONEY AND IS NOT MONEY BY ITSELF. LD CIT(A) HAS FURTHER STATED THAT ASSESSEE ALSO REFERRED THE RECENT AMENDMENT MADE BY FINANCE ACT, 2009 BY WAY OF INTRO DUCTION OF CLAUSE (VII) IN SUB- SECTION (2) OF SECTION 56 WHEREBY GIFTS IN KIND HAV E ALSO BEEN BROUGHT WITHIN THE PURVIEW OF SECTION 56(2) OF THE ACT. THE SAID AMEN DMENT HAS BEEN INTRODUCED PROSPECTIVELY W. E. F. 01.10.2009 AND THEREFORE THE SAME CANNOT BE APPLIED TO THE ASSESSEE. THE ASSESSEE ALSO PLACED RELIANCE ON DE CISION OF ITAT MUMBAI BENCH IN THE CASE OF ACIT CENTRAL CIRCLE 34 V. SHRI ANUJ AGARWA L BEARING ITA NO. 4945/MUM/08 AND SUBMITTED THAT THE FACTS OF THE SAID CASE ARE EXACT LY SIMILAR TO THE ASSESSEES CASE. IN THE SAID CASE, THE ASSESSING OFFICER HAD MADE AN AD DITION U/S. 56(2)(V) IN RESPECT OF GIFT OF INDIA MILLENIUM DEPOSIT CERTIFICATE (IMD) RECEIV ED BY THE ASSESSEE FROM UNRELATED PERSON AND THE TRIBUNAL IN THE SAID CASE OBSERVED A ND HELD AS UNDER: ITA NO.6399/MUM/2010 ASSESSMENT YEAR: 2006-07 4 WE ALSO FIND FORCE IN THE SUBMISSIONS OF LEARNED C OUNSEL FOR THE ASSESSEE THAT PRIOR TO INTRODUCTION OF SECTION 56(2)(VII) BY THE FINANCE ACT, 2009 W. E. F. 1 -10- 2009, GIFTS IN KIND WERE OUTSIDE THE PURVIEW OF SEC TION 56(2)(V) OR (VI) OF THE ACT. THE EXPRESSION USED IN SECTION 56(2)(V) AND (VI) IS WHERE ANY SUM OF MONEY EXCEEDING RS.25,000 IS RECEIVED BY AN INDIVIDUAL FR OM ANY PERSON IN THE LIGHT OF THE DECISION OF HONBLE SUPREME COURT AND CONSIDERI NG THE FACT THAT IN THE PRESENT CASE, WHAT WAS GIVEN WITHOUT CONSIDERATION WAS ONLY IMD CERTIFICATES, PROVISIONS OF SECTION 56(2)(V) OR (VI) COULD NOT HA VE BEEN INVOKED BY THE ASSESSING OFFICER (EMPHASIS SUPPLIED) 4. ON BEHALF OF ASSESSEE, IT WAS CONTENDED THAT AO HAS NOT MADE THE IMPUGNED ADDITION U/S.68 OF THE ACT BUT INVOKED THE PROVISIO NS OF SECTION 56(2)(V) OF THE ACT. BY DOING SO, IT IS IMPLIED THAT THE AFORESAID TRANSACT ION RELATES TO GIFT ONLY AND THAT THE PERQUISITES U/S. 68 HAVE BEEN COMPLIED WITH BY THE ASSESSEE. THEREFORE, THE ONLY DISPUTE RAISED BY THE AO BY INVOKING S. 56(2)(V) IS WHETHER THE GIFT IN QUESTION IS GIFT OF MONEY OR GIFT IN KIND. LD CIT(A) AFTER CONSIDERI NG THE SUBMISSIONS OF THE ASSESSEE HAS DELETED THE SAID ADDITION ON ACCOUNT OF GIFT OF IM D MADE BY THE AO U/S.56(2)(V) OF THE ACT AND RELEVANT PART OF THE ORDER OF LD CIT(A) REA DS AS UNDER: I HAVE ALSO GONE THROUGH THE EVIDENCES SUBMITTED I N THE COURSE OF ASSESSMENT PROCEEDINGS AND THE STATEMENT OF DONORS HUSBAND RE CORDED BY THE AO IN THE COURSE OF ASSESSMENT PROCEEDINGS. THE APPELLANT HAS FURNISHED DOCUMENTARY EVIDENCES TO ESTABLISH THE GENUINENESS OF THE GIFT. THESE EVIDENCES ARE NOT DISPUTED BY THE AO AND NO REASONS HAVE BEEN GIVEN F OR DISBELIEVING THE SAME. IN FACT, THE DONORS HUSBAND HAS DEPOSED BEFORE THE AO AND THE FACTS STATED IN THE EVIDENCES SUBMITTED BY THE APPELLANT HAVE BEEN CORROBORATED IN THE STATEMENT RECORDED BY THE AO. IT IS PRECISELY FOR THIS REASON THAT THE AO HAS NOT INVOKED THE PROVISIONS OF SECTION 68 OF THE ACT. I T IS TRUE THAT IN THE COURSE OF SEARCH PROCEEDINGS AS WELL, NO EVIDENCE OR MATERIAL HAS BEEN FOUND TO ESTABLISH THAT THE AFORESAID GIFTS WERE NOT GENUINE. IN THIS REGARD, IT WOULD BE WORTHWHILE TO CONSIDER THE PROVISIONS OF S. 56(2)(V) OF THE ACT WHICH ARE REPRODUCED HEREUNDER: 56(2)(V) WHERE ANY SUM OF MONEY EXCEEDING TWENTY-F IVE THOUSAND RUPEES IS RECEIVED WITHOUT CONSIDERATION BY AN INDIVIDUAL OR A HINDU UNDIVIDED FAMILY FROM ANY PERSON ON OR AFTER THE 1 DAY OF SEPTEMBER, 2004 BUT BEFORE THE L DAY OF APRIL, 2006, THE WHOLE OF SUCH SUM : PROVIDED THAT THIS CLAUSE SHALL NOT APPLY TO ANY SU M OF MONEY RECEIVED - .(EMPHASIS SUPPLIED) ITA NO.6399/MUM/2010 ASSESSMENT YEAR: 2006-07 5 THE ABOVE SECTION DEALS WITH ONLY ANY SUM OF MONEY . THE ONLY ISSUE IN THE PRESENT APPEAL IS WHETHER GIFT OF IMDS CAN BE EQUAT ED WITH GIFT OF MONEY AND THUS BROUGHT WITHIN THE PURVIEW OF S. 56(2)(V) OF T HE ACT. THE AO HAS EQUATED THE IMDS WITH BANK FIXED DEPOSITS AND CONCLUDED THA T THE SAME IS MONEY. I HAVE PERUSED THE TERMS AND CONDITIONS OF THE IMDS AND TH E VARIOUS RESTRICTIONS PLACED UPON THE FREE TRANSFERABILITY OF THE IMDS. IT IS TR UE THAT NO RESTRICTIONS APPLY TO THE TRANSFERABILITY OF MONEY, WHICH IS CURRENTLY AC CEPTED AS A MEDIUM OF EXCHANGE. THUS, IMDS, WHICH HAVE THESE RESTRICTIONS , CANNOT BE TREATED AS MONEY. AT THE BEST THEY CAN BE TREATED AS ANYTHING CONVERTIBLE INTO MONEY. FOR THAT MATTER, ANY PROPERTY WHETHER MOVABLE OR IMMOVA BLE CAN BE CONVERTED INTO MONEY BUT THE SAME IS NOT TREATED OR AKIN TO MONEY. THIS IS PRECISELY THE REASON THAT AN AMENDMENT HAS BEEN BROUGHT BY THE FINANCE A CT 2009 FOR BRINGING WITHIN THE PURVIEW OF TAX, THE GIFTS IN KIND. HOWEV ER, THE AMENDMENT IS PROSPECTIVE IN NATURE AND APPLIES TO TRANSACTIONS O N OR AFTER 1.10.2009. I AM IN COMPLETE AGREEMENT WITH THE DECISION OF HONBLE TRI BUNAL IN THE CASE OF SHRI ANUJ AGARWAL (ITA NO. 4945/MUM/08) WHEREIN GIFT OF IMDS IS HELD AS GIFT IN KIND AND OUTSIDE THE PURVIEW OF S. 56(2)(V) OF THE ACT. I THEREFORE, DIRECT THE AC TO DELETE THE ADDITION OF RS. 98,56,827/- ON ACCOUNT O F GIFT OF IMDS MADE U/S. 56(2)(V) OF THE ACT. THIS GROUND OF APPEAL IS ACCOR DINGLY ALLOWED. HENCE, THIS APPEAL BY THE DEPARTMENT. 5. DURING THE COURSE OF HEARING, LD D.R. RELIED ON THE ORDER OF AO AND WHEREAS LD A.R. SUPPORTED THE ORDER OF LD CIT(A). HE FURTHER SUBMITTED THAT SIMILAR ISSUE ON IDENTICAL FACTS HAVE BEEN CONSIDERED BY THE TRIBUNA L IN THE CASE OF ACIT VS. HARESH N MEHTA IN I.T.A. NO.6804/M/2010 FOR THE ASSESSMENT YEAR 2006-07 AND VIDE ORDER DATED 31.1.2012 THE TRIBUNAL DISMISSED THE APPEAL OF THE DEPARTMENT BY CONFIRMING THE ORDER OF LD CIT(A). LD A.R. SUBMITTED THAT IN THE SAID C ASE ALSO, GROUNDS OF APPEAL WERE SIMILAR AS IN THE CASE OF THE ASSESSEE AND REFERRED PAGE 22 OF PB. HE SUBMITTED THAT ORDER OF LD CIT(A) BE CONFIRMED BY DISMISSING THE A PPEAL OF DEPARTMENT. 6. WE HAVE CONSIDERED SUBMISSIONS OF LD REPRESENTAT IVES OF PARTIES AND ORDERS OF AUTHORITIES BELOW. WE HAVE ALSO CONSIDERED PAGE 22 OF PB, WHICH CONTAINS GROUNDS OF APPEAL IN I.T.A. NO.6804/M/2010(SUPRA) AND FIND SUB STANCE IN THE SUBMISSION OF LD A.R. THAT GROUNDS OF APPEAL OF THE ASSESSEE HEREIN ARE I DENTICAL SAVE AND EXCEPT THE AMOUNT. WE OBSERVE THAT THE TRIBUNAL BY ITS ORDER DATED 31. 1.2012 AFTER CONSIDERING THE ORDERS OF AUTHORITIES BELOW AND RELYING ON THE DECISION OF CO-ORDINATE BENCH IN THE CASE OF ACIT VS. ANUJ AGARWAL, 130 TTJ 49(MUM) AND ALSO THE DECI SION OF ITAT VIZAG BENCH IN SRI SARAD KUMAR BABULAL JAIN VS ITO (I.T.A. NO.29/VIZ/2 011) ORDER DATED 11.8.2011 ITA NO.6399/MUM/2010 ASSESSMENT YEAR: 2006-07 6 DISMISSED THE APPEAL OF DEPARTMENT BY CONFIRMING TH E ORDER OF LD CIT(A). WE CONSIDER IT PRUDENT TO STATE PARAS 15 TO 17 OF THE SAID ORDER W HICH READ AS UNDER: 15. THE CO-ORDINATE BENCH OF THE TRIBUNAL IN ACIT V /S ANUJ AGARWAL (SUPRA), HELD AS FOLLOWS:- HELD: THE GIFT IN QUESTION WAS COMPLETE PRIOR TO 1 9TH JULY, 2002. THE GIFT DEED DT. 19TH JULY, 2002 RECORDS THE FACT THAT THE GIFT WAS ALREADY COMPLETED PRIOR TO THAT DATE BY DELIVERY OF IMD BONDS Y THE D ONOR TO THE DONEE. AS RIGHTLY HELD BY THE CIT(A), GIFT WOULD BE COMPLETE IN THE F INANCIAL YEAR 2002-03 WITHIN THE MEANING OF SS. 122 AND 123 OF THE TRANSFER OF P ROPERTY ACT, 1882, PROVISIONS OF S. 56(2)(V) APPLIED ONLY TO GIFT N OR AFTER 1 ST SEPT, 2004. THE FACT THAT MATURITY PROCEEDS WERE RECEIVED BY THE ASSESSE E DURING THE PREVIOUS YEAR RELEVANT TO ASST. YR. 2006- 07 CANNOT BE THE B ASIS TO APPLY PROVISIONS OF S. 562,)(V). THERE IS ALSO FORCE IN THE SUBMISSIONS OF THE COUNSEL FOR THE ASSESSEE THAT PRIOR TO INTRODUCTION OF S. 56(2)(VII ) BY THE FINANCE ACT, 2009, W.E.F. 1ST OCT., 2009, GIFTS IN KIND WERE OUTSIDE T HE PURVIEW OF S. 56(2)(V) OR (VI). THE EXPRESSION USED IN S. 56(2)(V) AND (VI) I S WHERE ANY SUM OF MONEY EXCEEDING RS. 25,000 IS RECEIVED BY AN INDIVIDUAL F ROM ANY PERSON. CONSIDERING THE FACT THAT IN THE PRESENT CASE, WHAT WAS GIVEN WITHOUT CONSIDERATION WAS ONLY IMD CERTIFICATES, PROVISIONS OF S. 56(2)(V) OR (VI) COULD NOT HAVE BEEN NVOKED BY THE AO. EVEN ON THIS GROUN D, ORDER OF THE C1T(A) DESERVES TO BE SUSTAINEDH.H. SRI RAMA. VERMA VS. C IT (1991) 95 CTR (SC) 26: (1991) 187 ITR 308 (SC) APPLIED. 16. SIMILAR VIEW WAS TAKEN BY VIZAG BENCH OF THE TR IBUNAL IN SRI SARAD KUMAR BABULAL JAIN V/S ITO, ITA NO.29/VIZAG/2011, ORDER D ATED 11 TH AUGUST 2011. RESPECTFULLY FOLLOWING THESE DECISIONS, WE UPHOLD T HE FINDINGS OF THE COMMISSIONER (APPEALS) ON THIS ISSUE. 17. COMING TO THE ISSUE OF ADDITION UNDER SECTION 6 8 OF THE ACT, WE FIND THAT THE ASSESSEE HAS FURNISHED VARIOUS EVIDENCES TO EST ABLISH THE GENUINENESS OF THE GIFT DURING THE COURSE OF ASSESSMENT PROCEED INGS. AFFIDAVITS WERE FILED FROM THE DONORS. THE ASSESSING OFFICER HAS NOT DISP UTED ANY OF THESE DOCUMENTS AND IN FACT HE HAS NOT MADE ADDITION UNDE R SECTION 68. ON THE CONTRARY, THE ASSESSING OFFICER HAS RECORDED AT PAG E-4 OF HIS ORDER THAT THE ASSESSEE HAS PRODUCED DOCUMENTARY EVIDENCE TO CONFI RM THE VERY HIGH NETWORK STATUS OF THE DONOR. WHEN IT IS NOT THE CAS E OF THE ASSESSING OFFICER THAT AN ADDITION COULD BE MADE UNDER SECTION 68, TH E SUBMISSIONS OF THE LEARNED COUNSEL ON THIS ISSUE ARE UNCALLED FOR. THU S, GROUNDS NO.2 AND 3 OF THE REVENUE ARE DISMISSED. 7. SINCE THE FACTS ISSUE OF THE CASE BEFORE US ARE IDENTICAL TO HARESH N MEHTA(SUPRA) AND RESPECTFULLY FOLLOWING THE DECISIO N OF CO-ORDINATE BENCH IN THE CASE OF HARESH N MEHTA (SUPRA), WE UPHOLD THE ORDER OF LD C IT(A) AND REJECT THE GROUNDS OF APPEAL TAKEN BY DEPARTMENT. ITA NO.6399/MUM/2010 ASSESSMENT YEAR: 2006-07 7 8. IN THE RESULT, APPEAL FILED BY DEPARTMENT IS DIS MISSED. PRONOUNCED IN THE OPEN COURT ON 5 TH SEPTEMBER, 2012 SD/- (B.RAMAKOTAIAH ) ACCOUNTANT MEMBER SD/- (B.R. MITTAL) JUDICIAL MEMBER MUMBAI, DATED 5 TH SEPTEMBER, 2012 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS),38, MUMBAI 4. COMMISSIONER OF INCOME TAX, C-IV , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH A MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI