AJAY AGARWAL HUF, MUMBAI V. ITO WD 24(10(3), MUMBAI

ITA 6465/MUM/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49271 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 16-12-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHARVAN KUMAR
• Assessee Lawyers: SHANKARLAL JAIN
• Keywords: Bogus purchase; Unexplained investment; Income from undisclosed sources
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: MUMBAI BEFORE SHRI R.S. SYAL, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO.6465/MUM/2009 (ASSESSMENT YEAR: 2006-07) AJAY AGARWAL, HUF, C/O. SHANKARLAL JAIN & ASSOCIATES, 12, ENGINEER BUILDING, 265, PRINCESS STREET, MUMBAI -400 002 ....... ASSESSEE VS INCOME TAX OFFICER -24(1)3, MUMBAI ..... RESPONDENT ITA NO.383/MUM/2009 (ASSESSMENT YEAR: 2006-07) ACIT -24(1), MUMBAI ....... ASSESSEE VS AJAY AGARWAL, HUF, 1503, QUISCENT HEIGHTS, MIND SPACE, CHINCHOLI, MALAD (W), MUMBAI -400 064 . RESPONDENT PAN: AAEHA 0303 G ASSESSEE BY: SHRI SHANKARLAL JAIN REVENUE BY: SHRI SHARVAN KUMAR O R D E R PER R.S. PADVEKAR, JM THESE TWO CROSS APPEALS FILED ONE BY THE ASSESSEE A ND ANOTHER BY THE REVENUE ARE FILED FOR THE A.Y. 2006-07, CHAL LENGING THE IMPUGNED ORDER OF THE LD. CIT (A)-34, MUMBAI DATED 28.10.2009. THE SOLITARY ISSUE IN BOTH THESE APPEALS IS THE ADDITIO N OF RS 60,92,872/- MADE BY THE A.O. TREATING UNEXPLAINED INVESTMENT IN THE FORM OF ITA 6465/MUM/2009 ITA 383/MUM/2009 AJAY AGARWAL, HUF 2 PURCHASES U/S.69 OF THE I.T. ACT. THE ASSESSEE HA S TAKEN THE FOLLOWING EFFECTIVE GROUNDS:- 1. THE LD. COMMISSIONER OF INCOME TAX (A) ERRED I N CONFIRMING ADDITION TO THE EXTENT OF 30% OF PURCHASE PRICE AS PAID BY THE ASSESSEE IN CASE OF PURCHASE PARTIES UNDER CONSIDERATION WITHOUT PROPERLY APPRECIATING THE FAC TS OF THE CASE AND LAW APPLICABLE THERETO. 2. THE LD. COMMISSIONER OF INCOME TAX APPEALS ERRED IN CONFIRMING PART OF THE ADDITIONS IN SPITE OF THE FA CT THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS LD. ASS ESSING OFFICER HAS NOT BROUGHT ON RECORD ANY MATERIAL TO S HOW THAT PURCHASES HAVE BEEN EFFECTED FROM ANY PARTY6 OTHER THAN THE PARTIES UNDER REFERENCE BY MAKING PAYMENT IN CA SH AND WITHOUT CONSIDERING THAT THE ONUS IS ON THE DEP ARTMENT TO PROVE IN CASE OF ADDITIONS BEING MADE U/S.69. 3. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERR ED IN OBSERVING THE ASSESSEE BEING UNABLE TO PROVE SUPPLY OF GOODS BY THE PARTIES IT CAN BE CONCLUDED THAT PURCH ASES HAVE BEEN EFFECTED FROM OPEN MARKET WITHOUT APPRECI ATING THE FACT SUMMONS WERE DULY SERVED ON THE SAID 5 PAR TIES AND ALL NECESSARY ENQUIRIES WERE CONDUCTED DURING T HE ASSESSMENT PROCEEDINGS. 2. THE REVENUE HAS TAKEN THE FOLLOWING EFFECTIVE GR OUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT (A) ERRED IN DIRECTING THE ASSESSING OFFICER TO ALLOW 70% OF THE PURCHASES ACCOUNTED FOR IN THE BOOKS OF ACCOUNTS THROUGH ITA 6465/MUM/2009 ITA 383/MUM/2009 AJAY AGARWAL, HUF 3 FICTITIOUS BILLS AND BY CONFIRMING ONLY 30% OF SUCH PURCHASES. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT (A) FAILED TO APPRECIATE TH E FINDINGS OF THE ASSESSING OFFICER REGARDING THE FAC T THAT THE PURCHASES CLAIMED TO HAVE BEEN MADE BY THE ASSESSEE OF RS 60,92,872/- WERE CASH PURCHASES AND THAT THE ASSESSEE INTRODUCED BOGUS BILLS TO SHO W THE CASH PURCHASES AS GENUINE. 3. THE FACTS PERTAINING TO ISSUE WHICH HAVE BEEN PR OPERLY NARRATED BY THE LD. CIT (A) AND HENCE WE PREFER TO ADOPT THE FACTS NARRATED IN THE ORDER OF THE LD. CIT (A TO UNDERSTAND THE ISSUE IN CONTROVERSY). THE ASSESSEE IS IN THE BUSINESS OF TRADING OF MOBIL E PHONE ACCESSORIES, HARDWARE PRODUCTS, MACHINERY ETC. 4. A SURVEY WAS CARRIED OUT IN THIS CASE U/S.133A O N 24.11.20065 AND DURING SURVEY ACTION BILLS RELATING TO CERTAIN PURCHASES WERE NOT FOUND. AS NOTED BY THE A.O., THE ASSESSEE COULD NO T PROVE THE GENUINENESS OF FOLLOWING PARTIES/SUNDRY CREDITORS E VEN IN POST SURVEY PROCEEDINGS. THE ASSESSEES CASE WAS SELECTED FOR SCRUTINY AND ASSESSEE WAS ASKED TO FILE A COPY OF PURCHASE BILLS OF FOLLOWING PARTIES: (I) M/S. SWASTIK TRADING CO. RS 9,63,098/- (II) M/S. SARVODAY TRADING CO. RS 7,74,269/- (III) M/S. GRAVITY EXPORTS P. LTD. RS 18,14,015/- (IV) M/S. GINI MERCANTILE P. LTD. RS 16,53,984/- (V) M/S. COSMOS ENTERPRISES RS 8,87,506/- WITH AN INTENTION TO CLARIFY THE GENUINENESS OF PUR CHASES FROM THESE PARTIES SUMMONS U/S.131 WERE ISSUED TO THEM ON THE GIVEN ADDRESSES. THE A.O. ALSO DEPUTED AN INSPECTOR TO S ERVE THE SUMMONS ITA 6465/MUM/2009 ITA 383/MUM/2009 AJAY AGARWAL, HUF 4 TO ABOVE PARTIES ON THEIR GIVEN ADDRESSES, HOWEVER, THOSE PARTIES WERE NOT FOUND BY THE INSPECTOR. SUMMONS WERE ALSO SENT THROUGH SPEED POST BUT THE SAME WERE RETURNED BACK BY THE POSTAL AUTHORITIES WITH THE REMARKS NOT KNOWN. WHEN CONFRONTED ABOUT THE SE FACTS, THE ASSESSEE CONTENDED BEFORE THE ASSESSING OFFICER THA T ALL THE PARTIES WERE AVAILABLE ON THE GIVEN ADDRESSES AND REQUESTED TO SEND THE NOTICES AGAIN. AT REQUEST OF THE ASSESSEE, SUMMONS U/S.131 WERE AGAIN ISSUED. THOSE PARTIES RESPONDED TO SUMMONS B UT THEY FAILED TO FURNISH THE REQUIRED DETAILS. THE A.O. ASKED THOSE PARTIES TO FILE FOLLOWING DETAILS: A) DETAILS OF GOODS SOLD TO THE ABOVE PARTY. B) WHETHER THE GOODS WERE MANUFACTURED BY THEM? C) IF NOT, PLEASE PRODUCE THE CORRESPONDING PURCHA SE BILLS FOR THE SAME GOODS. D) TO PRODUCE THE DELIVERY CHALLANS, L/R, R/R VIDE WHICH THE GOODS WERE DELIVERED TO THE ASSESSEE. E) DETAILS OF PAYMENT RECEIVED FROM THE ASSESSEE. F) DETAILS OF PAYMENTS MADE TO THEIR PURCHASE PARTI ES. G) TO PRODUCE THE BANK STATEMENTS DULY IDENTIFYING THE PAYMENTS RECEIVED AND MADE. H) TO PRODUCE THE P&L ACCOUNT, BALANCE SHEET. I) TO PRODUCE THE COPIES OF I.T. RETURNS FILED. J) TO GIVE NAME AND ADDRESS OF DIRECTORS OF THEIR C ONCERN. 5. ALL FIVE PARTIES REPLIED THAT THEY HAVE SUPPLIED MOBILE ACCESSORIES TO THE ASSESSEE WHICH WERE PURCHASED FR OM OTHER SUPPLIERS FOR WHICH PAYMENTS WERE RECEIVED BETWEEN FEB, 07 AND MAR, 07. SOME ABNORMALITIES WERE NOTICED BY THE A.O. FR OM THE DETAILS FILED, THEREFORE, ANOTHER LETTER WAS ISSUED TO MR. RAM GOPAL SHARMA, PROP. OF M/S. SWASTIK TRADING CO., MR. CHANDRAKANT MEHTA, PROP. M/S. SARVODAY TRADING CO. AND M/S. COSMOS TRADING, M/S. GUIMMYU MERCANTILE LTD AND GRAVITY EXPORT P. 1 TO THEIR NEW ADDRESS. THEY ITA 6465/MUM/2009 ITA 383/MUM/2009 AJAY AGARWAL, HUF 5 WERE DIRECTED TO FILE THE DETAILS ABOVE. HOWEVER, NO DETAILS WERE FILED BY THEM. WITH AN INTENTION TO BRING MORE CLARITY I N THE MATTER, THE ASSESSING OFFICER ISSUED LETTER/NOTICE UNDER SEC. 1 33(6) TO HDFC BANK OF THE ASSESSEE AND CALLED FOR THE DETAILS OF THE C HEQUES ISSUED TO THOSE PARTIES. FROM THE DETAILS RECEIVED FROM THE BANK, THE BANK ACCOUNTS OF AFORESAID PARTIES WERE TRACED OUT. IT WAS FOUND FROM THE BANK ACCOUNTS OF THOSE PARTIES THAT THE CHEQUES ISS UED BY THE ASSESSEE WERE DEPOSITED IN THEIR BANK ACCOUNTS AND CASH WAS WITHDRAWN ON THE SAME DATE BY ATM OR BEARER CHEQUES . THE ASSESSEE WAS CONFRONTED WITH THOSE FACTS BY ISSUING NOTICE U /S 142(1) DATED 07/03/2008 AND THE ASSESSEE WAS ASKED TO EXPLAIN AS TO WHY THOSE PURCHASES SHOULD NOT BE TREATED AS CASH PURCHASES A ND WHY IT SHOULD NOT BE PRESUMED THAT PURCHASES WERE MADE IN CASH AN D BILLS WERE OBTAINED FROM THOSE PARTIES AND THERE WERE NO TRADI NG TRANSACTIONS WITH SAID PARTIES. THIS QUERY WAS NOT ANSWERED BY THE ASSESSEE. ABOUT THE MODUS OPERANDI OF THE ASSESSEE, THE ASSESSING OFFICER HAS MENTIONED THAT THOSE ITEMS WERE SOLD TO M/S. MAX MO BILE PHONES AND ACCESSORIES (INDIA) PVT. LTD. WHICH IS OWNED BY THE MEMBERS OF ASSESSEE (HUF). ASALL PAYMENTS WERE RECEIVED BY CHE QUES, THEREFORE, THE ASSESSEE WAS REQUIRED TO SHOW EQUIVALENT PURCHA SES OF THOSE ITEMS IN ITS BOOKS OF ACCOUNTS AND HENCE , BOGUS BI LLS WERE TAKEN FORM THE AFORESAID PARTIES. THE ASSESSING OFFICER HAS O BSERVED THAT ABOVE SAID PARTIES ARE INVOLVED IN GIVING BOGUS BILLS AS THEY COULD NOT PRODUCE THEIR PURCHASE BILLS AND OTHER DETAILS. 6. THE ASSESSING OFFICER HAS TREATED THE ENTIRE PUR CHASES AS CASH PURCHASES FROM UNACCOUNTED INCOME FOR FOLLOWING REA SONS. I) NO PURCHASE BILLS WERE FOUND DURING THE COURSE OF SURVEY U/S.133A II) NO LORRY RECEIPT OR DELIVERY CHALLAN ETC WERE FOU ND DURING THE COURSE OF SURVEY U/S.133A. III) THE PURPORTED PURCHASE PARTIES WERE NOT AVAILABLE ON THE ADDRESSES GIVEN. ITA 6465/MUM/2009 ITA 383/MUM/2009 AJAY AGARWAL, HUF 6 IV) THE PURPORTED PURCHASE PARTIES DID NOT SUBMIT THE COPIES OF THEIR RETURN OF INCOME. V) THE PURPORTED PURCHASE PARTIES DID NOT SUBMIT THE COPIES OF THEIR RETURN OF INCOME. VI) THE PURPORTED PURCHASE PARTIES DID NOT SUBMIT EVEN COPIES OF THEIR RETURN OF INCOME. VII) ALL THESE FIVE CONCERN ARE RUN BY MR. CHANDRAKANT H. MEHTA AND RAMGOPAL SHARMA WHO DID NOT RESPOND TO SUMMONS U/S.131. THE SALE TAX NUMBERS MENTIONED ON THE BILLS ARE INC ORRECT (AS VERIFIED FROM THE SALES-TAX DEPARTMENT). VIII) FURTHER THESE PURPORTED PURCHASES PARTIES DID NOT F ILE THEIR RETURN OF INCOME. IX) WHEN THE FUNDS WERE TRACED, IT IS SEEN THAT THE F UNDS WERE WITHDRAWN THROUGH CASH OR BEARER CHEQUES FROM THE A CCOUNTS OF THESE PURPORTED PURCHASE PARTIES. X) THERE IS NO RATIONAL IN SUCH HUGE DELAY IN MAKING PAYMENT OF THE PURPORTED PURCHASES. XI) THERE IS NO EVIDENCE OF PURCHASES FROM THESE PART IES EXCEPT THE PURPORTED PURCHASE BILLS SUBMITTED BY THESE PAR TIES. XII) THERE IS NO EVIDENCE THAT THESE PURPORTED PURCHAS ES PARTIES WERE ENGAGED IN BUSINESS OF TRADING OF MOBILE ACCES SORIES. 7. THE ASSESSEE CHALLENGED THE SAID ADDITION BEFORE THE LD. CIT (A). THE LD. CIT (A) CONFIRMED THE FINDING OF THE A.O. T HAT THE ASSESSEE UNABLE TO PROVE THE SUPPLY OF GOODS BY AFORESAID FI VE PARTIES AND CONCLUDED THAT IT IS WITHOUT ANY DOUBT THAT THE GOO DS WERE PURCHASED IN CASH OR OPEN MARKET AND BY DOING SO THE ASSESSEE MUST HAVE INFLATED THE PURCHASE PRICE. THE LD. CIT (A) ALSO HELD THAT THE DECISION IN THE CASE OF VIJAY PRODUCTS VS. ITO 58 ITD 428 (A HD.) IS FULLY APPLICABLE TO THE ASSESSEES CASE. AT THE SAME TIM E, HE WAS OF THE OPINION THAT THE ENTIRE ADDITION OF RS 60,92,872/- IS NOT JUSTIFIED EVEN IF IT IS PRESUMED THAT THE MONEY PAID TO AFORESAID SAID PARTIES MIGHT ITA 6465/MUM/2009 ITA 383/MUM/2009 AJAY AGARWAL, HUF 7 HAVE COME BACK TO THE ASSESSEE AND THAT WAS AVAILAB LE TO HIM FOR CASH PURCHASES AND IN THE OPINION OF THE LD. CIT (A) ADD ITION CAN ONLY BE MADE TO THE EXTENT OF INFLATED PURCHASE PRICE AND O THER EXPENSES SAVED. HE DIRECTED THE A.O. TO DISALLOW 25% OF THE PURCHASE PRICE ACCOUNTED FOR IN THE BOOKS OF ACCOUNT THROUGH FICTI TIOUS BILLS TREATING SAID AMOUNT AS INFLATED PRICE AND ALSO TO DISALLOW 5% OF THE SAID AMOUNT TOWARDS SAVING ALL OTHER EXPENSES LIKE SALES -TAX ETC. IN SUM AND SUBSTANCE, TO THE EXTENT OF THE 30% OF THE ADDI TION MADE BY THE A.O. HAS BEEN CONFIRMED AND ASSESSEE GOT THE RELIEF TO THE EXTENT OF 70% OF THE ADDITION. NOW, BOTH THE ASSESSEE & REVE NUE ARE IN APPEAL BEFORE US. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTI ES AND PERUSED THE RECORDS AS WELL AS THE REASONING GIVEN BY BOTH THE AUTHORITIES BELOW I.E. A.O. FOR MAKING THE ADDITION U/S.69 AND THE LD. CIT (A) FOR SUSTAINING THE ADDITION ONLY TO EXTENT OF 30%. TH E LD. COUNSEL TOOK US THROUGH THE PAPER BOOK AS WELL AS ACCOUNTS STATE MENT OF THE PARTY. HE ARGUES THAT NOWHERE WHICH IS PROVED THAT THE ASS ESSEE WAS INDULGED INTO EFFECTING A BOGUS PURCHASES. HE SUBMI TS THAT NOWHERE IT IS PROVED THAT THE AMOUNT OF THE CHEQUES ISSUE BY T HE ASSESSEE TO THOSE PARTIES HAS COME BACK IN THE FORM OF CASH AND ALL A.O.S CONCLUSIONS AND FINDINGS ARE ONLY ON THE BASIS OF T HE SUSPICION AND SURMISES. MOREOVER, THE A.O. HAS NOT REJECTED THE BOOKS OF ACCOUNT. HE, THEREFORE, PLEADED THAT THE ADDITION SUSTAINED BY THE LD. CIT (A) TO THE EXTENT OF 30% IS NOT AT ALL JUSTIFIED AND THE S AME MAY BE DELETED. PER CONTRA, THE LD. D.R. VEHEMENTLY ARGUED THAT WHE N ON PRINCIPLE THE LD. CIT (A) ACCEPTED AND CONFIRMED THE FINDING OF T HE A.O. THAT IN FACT, THE ASSESSEE WAS INDULGED IN SHOWING BOGUS PURCHASE BILLS THEN HOW THE RELIEF CAN BE GIVEN TO THE ASSESSEE? HE, THERE FORE, PLEADED FOR RESTORING THE ORDER OF THE A.O. 9. WE FIND THAT THE ASSESSEE IS IN THE BUSINESS OF MOBILE AND MOBILE ACCESSORIES. THERE WAS SURVEY ACTION U/S.13 1A. DURING THE ITA 6465/MUM/2009 ITA 383/MUM/2009 AJAY AGARWAL, HUF 8 COURSE OF THE SURVEY ACTION, THE A.O. ASKED FOR THE PURCHASE BILLS OF THE ABOVE FIVE PARTIES, WHICH WERE NOT AVAILABLE WI TH THE ASSESSEE. THOUGH THE SAID BILLS WERE NOT AVAILABLE WITH THE A SSESSEE AT THE TIME OF SURVEY ACTION IF SAID BILLS WERE KEPT AT SOME OT HER PLACE, THEN WHAT PREVENTED THE ASSESSEE FROM PRODUCING THE SAID BILL S WHEN THE A.O. WAS ASKING TO FILE THE SAID BILLS SUBSEQUENTLY? W E FURTHER FIND THAT EXCEPT FILING THE CONFIRMATION LETTERS FROM THE SAI D FIVE PARTIES, NOT A SINGLE PARTY APPEARED BEFORE THE A.O. HE FURTHER F IND THE A.O. ISSUED SUMMONSES U/S.131 TO ALL THOSE FIVE PARTIES, BUT NO NE OF THE PARTIES APPEARED BEFORE THE A.O. THE ASSESSEE TRIED TO PRO VE THE EXISTENCE OF THOSE PARTIES BY FLING THE PAN NUMBERS AND OTHER DE TAILS OF THOSE FIVE PARTIES. IT IS CERTAINLY STRANGE THAT WHEN THOSE P ARTIES WERE BONA FIDE SUNDRY CREDITORS THEN WHY THOSE PARTIES WERE NOT FO UND WHEN INSPECTOR WENT TO SERVE SUMMONS ON THE ADDRESSES GI VEN IN THE INVOICES. BUT, SUBSEQUENTLY, WHEN THE SUMMONSES WE RE ISSUED BY POST, SUDDENLY LETTERS WERE FILED BY THOSE PARTIES SEEKING THE TIME. THOUGH THERE IS NO DIRECT EVIDENCE TO SHOW THAT THE AMOUNTS PAID BY THE ASSESSEE IN THE FORM OF CHEQUES IN THE NAME OF THOSE FIVE PARTIES HAS GO BACK TO THE ASSESSEE, BUT THERE IS A CIRCUMS TANTIAL EVIDENCE TO SUGGEST THAT PURCHASE TRANSACTIONS WITH THOSE PARTI ES WERE BOGUS. AFTER GIVING OUR ANXIOUS CONSIDERATION TO THE TOTAL ITY OF THE FACTS AS WELL AS CIRCUMSTANTIAL EVIDENCE, WE CONCUR WITH THE FINDING OF THE LD. CIT (A) THAT THE ASSESSEE WAS INDULGED INTO BOGUS B OOK ENTRIES AND FAILED TO PROVE THAT THERE WAS ACTUAL SUPPLY GOODS TO HIM. 10. NOW, THE NEXT QUESTION WHETHER THERE IS A JUS TIFICATION TO CONFIRM THE ORDER OF THE LD. CIT (A) SUSTAINING 30% ADDITION OUT OF THE TOTAL ADDITION OF RS 60,92,872/-? WE FIND THAT THOU GH THE LD. CIT (A) CONFIRMED THE FINDING OF THE A.O. THAT THOSE PARTIE S ARE NOT GENUINE OR ASSESSEE FAILED TO PROVE THOSE PARTIES AS GENUINE S ELLERS FROM WHOM THE ASSESSEE CLAIMED TO HAVE MADE PURCHASES, THE LD . CIT (A) WAS OF THE OPINION THAT PRESUMING THAT THE AMOUNTS HAVE CO ME BACK TO THE ASSESSEE AND THE SAID AMOUNT WAS AVAILABLE FOR PURC HASING THE ITA 6465/MUM/2009 ITA 383/MUM/2009 AJAY AGARWAL, HUF 9 MATERIAL IN THE GRAY MARKET. HE, THEREFORE, TOOK T HE BALANCE VIEW, AS NOWHERE GP IS DISPUTED BY THE A.O. NOR THE A.O. HAS REJECTED THE BOOK RESULTS BUT SUSTAINED THE ADDITION OF THE PURCHASES TREATING 25% OF THE PURCHASE PRICE TOWARDS INFLATED COST OF PURCHAS ES PLUS 5% TOWARDS SALES-TAX AND OTHER EXPENSES. IN OUR OPINI ON, THE APPROACH OF THE LD. CIT (A) IS REASONABLE AS NOWHERE THE ISSUE OF GP IS DISPUTED BY THE A.O. MOREOVER, IF WE CONSIDER THE ENTIRE PURCH ASE OF RS 60,92,872/- AS BOGUS THAT WILL GIVE THE DISTORTED P ICTURE OF THE GROSS PROFIT. THOUGH THE LD. COUNSEL RELIED ON THE PLETH ORA OF THE DECISIONS BUT EACH DECISIONS IS TO BE CONSIDERED IN THE GIVEN FACTS OF THE RESPECTIVE CASES. MOREOVER, WHETHER THE ASSESSEE H AS DISCHARGED HIS BURDEN OR NOT THAT DEPENDS ON THE FACTS AS ARE AVAI LABLE BEFORE THE AUTHORITIES. IN OUR OPINION, THE LD. CIT (A) HAS T AKEN REASONABLE VIEW. WE, THEREFORE, CONCUR WITH THE VIEW TAKEN BY THE LD . CIT (A) AND UPHOLD HIS ORDER. 11. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE AS WELL AS THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 3 0TH JUNE 2011. SD/- SD/- ( R.S. SYAL ) ACCOUNTANT MEMBER ( R.S. PADVEKAR ) JUDICIAL MEMBER MUMBAI, DATE: 30TH JUNE 2011 COPY TO:- 1) THE ASSESSEE. 2) THE RESPONDENT. 3) THE CIT (A)34, MUMBAI. 4) THE CIT-24, MUMBAI. 5) THE D.R. A BENCH, MUMBAI. ITA 6465/MUM/2009 ITA 383/MUM/2009 AJAY AGARWAL, HUF 10 BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR I.T.A.T., MUMBAI *CHAVAN ITA 6465/MUM/2009 ITA 383/MUM/2009 AJAY AGARWAL, HUF 11 SR.N. EPISODE OF AN ORDER DATE INITIALS CONCERNED 1 DRAFT DICTATED ON 27.06.2011 SR.PS 2 DRAFT PLACED BEFORE AUTHOR 27.06.2011 SR.PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER