ITO 25(2)(1), MUMBAI V. ASHA PACKAGING, MUMBAI

ITA 6513/MUM/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5188 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2007-2008
• Appeal Filed On: 07-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SACHCHIDANAND DUBE
• Assessee Lawyers: V G GINDE
• Keywords: Unexplained cash credit; Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.6513/M/2016 ASSESSMENT YEAR: 2007-08 OFFICE OF THE ITO 25(2)(1), R.NO.505, C-10, 5 TH FLOOR, PRATYAKSHA KAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI - 400051 VS. M/S. ASHA PACKAGING, 203, PADMA SOCIETY, NEAR GTSV ROAD, VILE PARLE (W), MUMBAI 400 056 PAN: AAAFA 2449P (APPELLANT) (RE SPONDENT) CO NO.65/M/2018 (ITA NO.6513/M/2016) ASSESSMENT YEAR: 2007-08 M/S. ASHA PACKAGING, 601, PADMA SOCIETY, NEAR GTC, SV ROAD, VILE PARLE (W), MUMBAI 400 056 PAN: AAAFA 2449P VS. ITO 25(2)(1), R.NO.505, C-10, 5 TH FLOOR, PRATYAKSHA KAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI - 400051 (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : SHRI V.G. GINDE, A.R. REVENUE BY : SHRI SACHCHIDANAND DUBE, D.R. DATE OF HEARING : 03.12.2018 DATE OF PRONOUNCEMENT : 05.02.2019 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE REVEN UE AGAINST THE ORDER DATED 29.08.2016 OF THE COMMISSIO NER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS TH E CIT(A)] RELEVANT TO ASSESSMENT YEAR 2007-08. ITA NO.6513/M/2016 & CO NO.65/M/2018 M/S. ASHA PACKAGING 2 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.27,54,000/- ON ACCOU NT OF CAPITAL INTRODUCED BY TWO PARTNERS WITHOUT APPRECIATING THE FACTS THAT ASSESS EE COULD NEITHER ESTABLISH THE NEXUS OF CONSIDERATION RECEIVED FROM SALE OF BUNGLO W WITH THE CAPITAL INTRODUCED NOR DID HE FURNISH LOAN CONFIRMATIONS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 18,10,691 /- ON ACCOUNT OF SUSPENSE ACCOUNT FOR WHICH NO EXPLANATION WAS OFFERED BY THE ASSESSEE. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 33,10,000/- U /S. 68 OF THE IT ACT ON ACCOUNT OF UNPROVED LIABILITY AS ADVANCE FROM CUSTOMERS WITHOU T APPRECIATING THAT ASSESSEE HAS FAILED TO FURNISH EXPLANATION FOR IT. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) HAS ERRED IN NOT CONSIDERING THE FACT THAT AS PER AUDITED BALANC E SHEET OF THE ASSESSEE FOR A.Y. 2006-07, THERE WERE NO LOANS FROM PARTIES, WHICH IS CONTRARY TO THE SUBMISSIONS MADE BY THE ASSESSEE THAT THESE LOANS PERTAINED TO PREVIOUS YEARS AND THEREFORE SHOULD HAVE BEEN IN THE AUDITED BOOKS OF THE ASSESS EE FOR A.Y. 2006-07. 5. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT (A ) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED . 6. THE APPELLANT CRAVES LEAVE TO AMEND OR TO ALTER ANY GROUND OR ADD A NEW GROUND, WHICH MAY BE NECESSARY. 3. THE ISSUE RAISED IN GROUND NO.1 IS AGAINST THE D ELETION OF ADDITION OF RS.27,54,000/- ON ACCOUNT OF CAPITAL IN TRODUCED BY TWO PARTNERS. 4. THE FACTS IN BRIEF ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO OBSERVED THAT THE PARTNERS IN T HE ASSESSEE FIRM HAS INTRODUCED CAPITAL TO THE TUNE OF RS.28,39 ,000/- BY SHRI JAYANT AJMERA AND RS.7,45,000/- BY SMT. PRITI AJMERA AND ACCORDINGLY DETAILS WERE CALLED FOR FROM THE ASSESS EE WHICH WERE FURNISHED BY THE ASSESSEE IN THE ASSESSMENT PROCEED INGS. HOWEVER, AO IS NOT SATISFIED WITH THE EXPLANATION O F THE ASSESSEE ON THE GROUND THAT SOURCE OF SUCH PAYMENTS WERE NOT EXPLAINED ITA NO.6513/M/2016 & CO NO.65/M/2018 M/S. ASHA PACKAGING 3 AS THE PARTNER STATED THAT SUCH INTRODUCTIONS WERE MADE OUT OF LOANS FROM RELATIVES WHOSE NAMES AND ADDRESSES WER E NOT GIVEN IN THE CASE OF SHRI JAYANT AJMERA. IN THE CASE OF SMT. PRITI AJMERA, THE CAPITAL INTRODUCED WAS STATED TO BE OUT OF SALE PROCEEDS OF BUNGALOW AT LONAVALA FOR WHICH NO DOCUM ENTARY EVIDENCES WERE FURNISHED AND FINALLY AO BY REJECTI NG THE CONTENTIONS OF THE ASSESSEE ADDED A SUM OF RS.35,84 ,000/-. 5. IN THE APPELLATE PROCEEDINGS, THE LD. CIT(A) CAL LED FOR THE REMAND REPORT FROM THE AO WHICH WAS SUBMITTED BY TH E AO ON 26.11.2015. THE LD. CIT(A) AFTER CONSIDERING THE R EMAND REPORT AND SUBMISSIONS OF THE ASSESSEE DELETED THE ADDITIO N MADE BY THE AO BY OBSERVING AND HOLDING AS UNDER: 7. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CA SE, MATERIAL PLACED ON RECORD, THE REMAND REPORT OF THE AO AND THE APPELLANT'S REJOIND ER TO THE REMAND REPORT. I HAVE ALSO CONSIDERED THE ORAL ARGUMENTS OF THE AR AND TH E CASE LAW CITED BY HIM IN SUPPORT OF THE SAME. THE APPELLANT-FIRM'S TWO PARTN ERS, VIZ. SHRI JAYANT AJMERA AND SMT. PRITI AJMERA INTRODUCED SUMS OF RS.28,39,000/- AND RS.7,45,000/- RESPECTIVELY AS CAPITAL CONTRIBUTION IN THE APPELLANT-FIRM. 7.1 SHRI. JAYANT AJMERA MADE VARIOUS PAYMENTS TO TH E APPELLANT AGGREGATING TO RS.28,39,000/- OUT OF WHICH PAYMENTS AGGREGATING TO RS.20,67,OOO/-WERE MADE ON VARIOUS DATES OUT OF HIS BANK A/C NO. 1811040000007 63 WITH IDBI BANK, VILE PARLE (WEST) BRANCH, RS.3,72,000/- WAS PAID OUT OF HIS BA NK A/C NO. 01422010004800 WITH ORIENTAL BANK OF COMMERCE, ANDHERI (WEST) BRAN CH ON 21.07.2006, AND RS.4,00,000/- OUT OF BANK A/C. NO. 03211000002736 W ITH HDFC BANK, JVPD SCHEME BRANCH. THE APPELLANT FILED COPIES OF ALL THE BANK STATEMENTS AND THE ENTRIES THEREIN CORROBORATE THESE PAYMENTS MADE TO THE APPE LLANT. ALL THESE PAYMENTS WERE MADE OUT OF HIS BANK ACCOUNTS. SHRI.JAYANT AJM ERA IS INCOME-TAX ASSESSEE AND HAS FILED RETURN OF INCOME FOR THE A.Y. 2007-08. TH E APPELLANT HAS ALSO EXPLAINED THE IMMEDIATE SOURCES IN THE BANK A/C OF JAYANT AJM ERA AND THERE IS NO PRIOR CASH DEPOSIT IN THE BANK ACCOUNTS FROM WHERE PAYMENTS AR E MADE BY HIM TO THE APPELLANT.. THEREFORE, IN MY VIEW, THE APPELLANT HA S SATISFACTORILY EXPLAINED THE CAPITAL INTRODUCED BY SHRI.JAYANT AJMERA. THE APPEL LANT IS REQUIRED TO EXPLAIN THE CREDIT ENTRY IN ITS BOOKS AND ONCE THAT IS EXPLAINE D WITH DOCUMENTARY EVIDENCE, THERE IS NO FURTHER ONUS ON HIM TO PROVE SOURCE OF SOURCE. I FIND THAT THE APPELLANT HAS SUBMITTED SUFFICIENT DOCUMENTS TO PROVE THE SOU RCE OF SOURCE . 7.2 THE SOURCE OF SALE PROCEEDS OF BUNGALOW AT LOAN VLA WAS NOT ACCEPTED BY THE AO BECAUSE THERE IS NO SHORT TERM CAPITAL GAIN IN THE STATEMENT OF TOTAL INCOME OF THE ITA NO.6513/M/2016 & CO NO.65/M/2018 M/S. ASHA PACKAGING 4 PARTNERS. THE AO HAS NOT DENIED THE ACTUAL SALE OF THE BUNGALOW FOR RS.15,00,000/- WHICH IS SUPPORTED BY THE SALE DEED AND CHEQUE PAYM ENTS RECEIVED IN THE BANK ACCOUNTS OF JAYANT AJMERA AND PRITI AJMERA AS EVIDE NCED BY THEIR RESPECTIVE BANK STATEMENTS. THUS, THE SOURCE OF RS.15,00,000/- IS N OT DENIED BY THE AO. THE QUESTION WHETHER THEY HAD OFFERED THE RESULTANT CAP ITAL GAINS IN THEIR RETURNS OR NOT OR WHETHER AS SHORT TERM OR LONG TERM IS WHOLLY IRR ELEVANT AS FAR AS THE APPELLANT IS CONCERNED. ON PERUSAL OF THE APPELLANT'S REJOINDER WITH THE CORRESPONDING ENTRIES IN THE BANK STATEMENTS, I ALSO FIND THAT THE APPELL ANT HAS SATISFACTORILY EXPLAINED THE AMOUNTS OF RS.7,50,000/-RECEIVED BY SHRI.JAYANT AJM ERA FROM BIPIN DEWANI; RS.2,37,250/- RECEIVED FROM PAREKH SALES AGENCY AS COMMISSION; RS.4,00,000/- FROM SURESH AJMERA, WHO HAS CONFIRMED THE SAME IN REPLY TO THE AO MADE IN RESPONSE TO NOTICE U/S.133(6) ISSUED TO HIM IN REMAND PROCEEDIN GS; RS.5,00,000/- RECEIVED FROM KIRIT BHUPTANI ON WHICH NO ADVERSE COMMENT HAS BEEN MADE BY THE AO; AND RS.3,30,000/- WITHDRAWN BY JAYANT AJMERA FROM THE A PPELLANT-FIRM ITSELF WHICH IS LATER INTRODUCED AS HIS CAPITAL. THEREFORE, IN MY V IEW, THE APPELLANT HAS SATISFACTORILY EXPLAINED EVEN THE SOURCE OF SOURCE AND THERE IS NO JUSTIFICATION FOR HOLDING THE SUM OF RS.28,39,000/- INTRODUCED BY SHR I.JAYANT AJMERA AS UNEXPLAINED CASH CREDIT. 7.3 SMT. PRITI AJMERA PAID SUMS AGGREGATING TO RS.7 ,45,000/- ON VARIOUS DATES OUT OF HER BANK A/C. NO. 181104000000754 WITH IDBI BANK, V ILE PARLE (WEST) BRANCH WHICH ARE SUPPORTED BY THE ENTRIES IN HER BANK STATEMENTS . THE IMMEDIATE SOURCES OF THESE PAYMENTS WERE RECEIPT OF SALE PROCEEDS OF BUN GALOW AT LONAVALA WHICH SHE SOLD AS CO-OWNER WITH JAYANT AJMERA. THE APPELLANT HAS PRODUCED COPY OF THE SALE DEED AS SEEN ABOVE IN CASE OF JAYANT AJMERA. THE AO REJECTED THIS EXPLANATION ON THE SAME GROUNDS AS SEEN IN CASE OF JAYANT AJMERA. PRITI AJMERA HAS ALSO FILED HER RETURN OF INCOME FOR A.Y. 2007-08. THEREFORE, I FIN D THAT IN THIS CASE TOO, THE APPELLANT HAS NOT ONLY EXPLAINED THE CREDIT ENTRY I N ITS BOOKS BUT HAS FURTHER PROVED THE SOURCE OF SOURCE. 8. IN VIEW OF ABOVE DISCUSSION, I AM OF THE CONSIDE RED VIEW THAT THE ADDITION OF RS. 35,84,000/- IS NOT JUSTIFIED ON THE FACTS. I THEREF ORE DIRECT THE AO TO DELETE THE ADDITION. THIS GROUND IS ALLOWED. 6. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD, WE FIND THAT THE LD. CIT(A) HAS PASSED A VE RY DETAILED AND REASONED ORDER AFTER TAKING INTO ACCOUNT THE SU BMISSIONS OF THE ASSESSEE AND REMAND REPORT FROM THE AO AND GIVI NG A CLEAR CUT FINDING THAT THE SHRI JAYANT AJMERA HAS SUFFICI ENTLY PROVED THE SOURCES OF THE FUNDS BY FILING THE COPIES OF BA NK ACCOUNTS WITH IDBI BANK VILE PARLE (WEST) BRANCH EXPLAINING RS.20,67,000/- AND COPY OF BANK ACCOUNT WITH ORIENT AL BANK OF COMMERCE EVIDENCING RS.3,72,000/- AND RS.4,00,000/- OUT OF ITA NO.6513/M/2016 & CO NO.65/M/2018 M/S. ASHA PACKAGING 5 HDFC BANK . SIMILARLY, IN THE CASE OF SMT. PRITI A JMERA THE LD. CIT(A) RECORDED A FINDING OF FACT THAT THE SAID INT RODUCTION WAS OUT OF SALE PROCEEDS OF BUNGALOW AT LONAVALA AND TH E INTRODUCTIONS WERE SUPPORTED BY SALE DEED AND CHEQU ES PAYMENTS RECEIVED BY THE SAID PARTNER IN HER BANK A CCOUNT AND OUT OF THAT THE MONEY , THE PARTNER INTRODUCED CAPI TAL IN THE ASSESSEE FIRM. THUS IT IS CLEAR THAT AO HAS NOT AP PRECIATED THE FACTS IN CORRECT PERSPECTIVE. WE ARE THEREFORE INC LINED TO UPHOLD THE ORDER OF LD. CIT(A) WHICH IS WELL REASONED AND SPEAKING ONE ON THIS GROUND. THE GROUND RAISED BY THE REVENUE I S DISMISSED. 7. THE ISSUE RAISED IN GROUND NO.2 IS AGAINST THE D ELETION OF ADDITION OF RS.18,10,691/- AS MADE BY THE AO ON ACC OUNT OF THE SUSPENSE ACCOUNT IN AUDITED BALANCE SHEET WHICH ACC ORDING TO THE AO WAS NOT EXPLAINED BY THE ASSESSEE. 8. IN THE APPELLATE PROCEEDINGS, THE LD. CIT(A) ALL OWED THE APPEAL OF THE ASSESSEE ON THIS GROUND BY GIVING A C LEAR CUT FINDING THAT THERE WAS NO SUSPENSE ACCOUNT IN THE A UDITED BALANCE SHEET FILED BY THE ASSESSEE BEFORE THE AO W HEREAS THERE WAS A SUSPENSE ACCOUNT CREDIT BALANCE AS PER BALANC E SHEET FORMING PART OF THE BOOKS OF ACCOUNTS WHICH WAS UNA UDITED. THE LD. CIT(A) GAVE A CLEAR CUT FINDING OF FACTS TH AT THE SAID AMOUNT REPRESENTED THE CHEQUES RECEIPTS FROM THE DE BTORS FOR SALES MADE TO THEM AND WERE CREDITED TO THE SUSPENS E ACCOUNT PENDING THE FINAL RECONCILIATION OF ACCOUNTS AND DU RING AUDIT THE NECESSARY ADJUSTMENTS WERE MADE AND SUSPENSE ACCOUN T DID NOT APPEAR IN THE FINAL AUDITED BALANCE SHEET AND T HUS ALLOWED THE APPEAL OF THE ASSESSEE ON THIS ISSUE. ITA NO.6513/M/2016 & CO NO.65/M/2018 M/S. ASHA PACKAGING 6 9. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL ON RECORD, WE FIND THAT LD. CIT(A) HAS COR RECTLY ALLOWED THE APPEAL OF THE ASSESSEE BY OBSERVING THAT THERE IS NO SUSPENSE ACCOUNT IN THE FINAL AUDITED BALANCE SHEET WHICH WAS ALSO FILED BEFORE THE AO REVERSING THE ORDER OF AO IN WHICH THE ADDITION WAS MADE MERELY ON THE BASIS OF AN UNAUDIT ED BALANCE SHEET FORMING PART OF BOOKS OF ACCOUNTS WHEREAS AT THE TIME OF AUDIT, THE DISCREPANCY WAS FOUND THAT THE SAID CRED IT IN THE SUSPENSE ACCOUNT WAS ON ACCOUNT OF CHEQUES RECEIVE D FROM CUSTOMERS WHICH WERE CREDITED TO THE CORRECT HEADS OF ACCOUNT AT THE TIME OF AUDIT. WE, THEREFORE, DO NOT FIND A NY REASON TO DEVIATE FROM THE FINDING OF LD. CIT(A) AND ACCORDIN GLY UPHELD THE SAME BY DISMISSING THE GROUND OF THE REVENUE. 10. THE ISSUE RAISED IN GROUND NO.3 & 4 IS AGAINST THE DELETION OF ADDITION OF RS.33,10,000/- AS LIABILITY IN THE B ALANCE SHEET AND ADDED THE SAME TO THE INCOME OF THE ASSESSEE AS UNPROVED LIABILITY WHEN NO EXPLANATION WAS OFFERED BY THE A SSESSEE. 11. THE LD. CIT(A) DELETED THE ADDITION AFTER CONSI DERING THE REPLY OF THE ASSESSEE THAT THE SAID AMOUNTS WERE RE CEIVED IN THE EARLIER YEARS AND WERE DULY ACCEPTED IN THE RESPEC TIVE ASSESSMENT PROCEEDINGS IN THE EARLIER YEARS AS PER DETAILED FINDING GIVEN BY LD. CIT(A) IN PARA NO.12, 12.1, 12 .2, 12.3 & 12.4 AND FINALLY CONCLUDED THE MATTER IN PARA 12.4 WHICH IS REPRODUCED AS UNDER 12.4 SECTION 68 STIPULATES THAT IF ANY UNEXPLAINED SUM FOUND CREDITED IN THE BOOKS OF THE ASSESSEE FOR ANY PREVIOUS YEAR. THEN THE SAM E MAY BE TAXED AS INCOME OF THE ASSESSEE FOR THAT PREVIOUS YEAR. ACCORDINGLY SE CTION 68 CAN ONLY BE INVOKED IF AND ONLY IF THE SUM HAS BEEN TAKEN OR HAVE BEEN CRE DITED IN THE BOOKS OF THE ASSESSEE IN THE RELEVANT PREVIOUS YEAR FOR WHICH AS SESSMENT IS BEING MADE. IN OTHER WORDS IF NO AMOUNT IS TAKEN OR CREDITED IN THE RELE VANT PREVIOUS YEAR THEN THE ITA NO.6513/M/2016 & CO NO.65/M/2018 M/S. ASHA PACKAGING 7 SECTION 68 CANNOT BE INVOKED. ACCORDINGLY, THE ADDI TION OF RS.33,10,000/- CANNOT BE SUSTAINED. THIS GROUND OF APPEAL IS ALLOWED IN FAVO UR OF THE APPELLANT. 12. HAVING HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD, WE FIND THAT ALL THESE AMOUNTS AS APPEARING IN THE BALANCE SHEET AS ON 31.03.2007 WERE COMING FROM EAR LIER YEARS AND NONE OF THEN WERE RECEIVED DURING THE YEAR AS I S CLEAR FROM THE DETAILED FINDINGS OF FACTS RECORDED BY THE LD. CIT(A) IN HIS ORDER. IN OUR OPINION, THE LD. CIT(A) HAS TAKEN A CORRECT VIEW OF THE MATTER THAT SINCE THESE AMOUNTS WERE NOT RAISED DURING THE YEAR AND THEREFORE ADDITION UNDER SECTION 68 OF THE ACT CAN NOT BE MADE AS THERE IS NO CREDIT IN THE BOOKS OF ACCOU NTS ACCEPTED DURING THE YEAR. ACCORDINGLY, WE UPHOLD THE ORDER OF LD. CIT(A) ON THIS ISSUE. 13. THE ISSUE IN GROUND NOS.5 & 6 IS GENERAL IN NAT URE AND DO NOT REQUIRE ANY ADJUDICATION. 14. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. CO NO.65/M/2018 15. THE ONLY ISSUE RAISED BY THE ASSESSEE IN THE CR OSS OBJECTION IS AGAINST THE CONFIRMATION OF ADDITION OF RS. 3,45 ,788/- BY LD CIT(A) CONFIRMING THE ADDITION MADE BY THE AO ON AC COUNT OF DISCREPANCIES IN THE AUDITED PROFIT AND LOSS ACCOUN T( 1.4.2006 TO 31.3.2007) AND UNAUDITED PROFIT AND LOSS ACCOUNT( 1.4.2006 TO 31.7.2006. 16. THE FACTS IN BRIEF ARE THAT THE ASSESSEE PREPAR ED TWO PROFIT AND LOSS ACCOUNT ONE FOR THE ENTIRE YEAR AND OTHER FOR PART OF THE YEAR DUE TO CHANGE IN CONSTITUTION OF THE FIRM. TH E AO FOUND DISCREPANCY UPON COMPARING THESE TWO PROFIT AND LOS S ACCOUNT ITA NO.6513/M/2016 & CO NO.65/M/2018 M/S. ASHA PACKAGING 8 AND ADDED THE SAME TO THE PROFIT AND LOSS ACCOUNT. IN THE APPELLANT PROCEEDINGS, THE CIT(A) CONFIRMED THE ADD ITION ON THE GROUND THAT THE ASSESSEE HAS NOT FILED ANY ADDITION AL EVIDENCES BEFORE AO IN THE REMAND PROCEEDINGS BUT FILED EXPLA NATION FOR THE FIRST TIME BEFORE THE AO. EVEN THE AO DID NOT C OMMENT ON THIS DISCREPANCY IN THE REMAND REPORT. 17. AFTER HEARING BOTH THE PARTIES AND PERUSING TH E MATERIALS ON RECORDS, WE OBSERVE THAT THE ASSESSEE HAS NOT FI LED ANY ADDITIONAL EVIDENCES BEFORE THE AO IN THE REMAND PR OCEEDINGS QUA THE SAID DIFFERENCE IN TWO PROFIT AND LOSS ACCO UNT. THE ASSESSEE HAS ALSO NOT FILED ANY EVIDENCES IN THE AS SESSMENT PROCEEDINGS IN RESPECT OF THIS DISCREPANCY. THE LD CIT(A) HAS DISMISSED THE GROUND ONLY ON THE GROUND THAT THE AS SESSEE HAS NOT FILED ANY NEW EVIDENCES BEFORE THE AO BUT OFFER ED EXPLANATION ONLY. UNDER THESE CIRCUMSTANCES WE ARE OF THE VIEW THAT THE MATTER SHOULD BE EXAMINED AT THE LEVEL OF AO. ACCORDINGLY WE RESTORE THE ISSUE BACK TO THE FILE O F AO TO DECIDE THE SAME AS PER FACTS AND LAW AFTER AFFORDING A REA SONABLE OPPORTUNITY TO THE ASSESSEE. THE CO IS ALLOWED FOR STATISTICAL PURPOSES. 18. IN RESULT THE APPEAL OF THE REVENUE IS DISMISSE D AND CO IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 05.02.2019. SD/- SD/- (MAHAVIR SINGH) (RAJESH KUM AR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 05.02.2019. * KISHORE, SR. P.S. ITA NO.6513/M/2016 & CO NO.65/M/2018 M/S. ASHA PACKAGING 9 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY /ASSTT. REGISTRAR, ITAT, MUMBAI.