AIM PROPERTIES & INVESTMENTS P.LTD, MUMBAI V. ITO 5(1)(1), MUMBAI

ITA 7426/MUM/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71755 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Next Hearing Date: 21-11-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 14-12-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PITAMBAR DAS
• Assessee Lawyers: B V JHAVERI
• Keywords: Unexplained cash credit
• Section: 133(6); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI , !' #$$&'( ) !' * * * * BEFORE SRI VIJAY PAL RAO, JM AND SHRI N.K.BILLAIYA, AM ./ I.T.A. NO. 7426/MUM/2012 ( # + # + # + # + ,+ ,+ ,+ ,+ / ASSESSMENT YEAR: 2009-10 ) AIM PROPERTIES & INVESTMENTS PRIVATE LTD. 265-E, BELLASIS ROAD, MUMBAI CENTRAL, MUMBAI-400008 # # # # / VS. INCOME - TAX OFFICER, 5(1)(1), AYAKAR BHAVAN, QUEENS ROAD, MUMBAI-400020 '- ) ./ PAN : AADCA8112B ( -. / ASSESSEE ) .. ( /0-. / RESPONDENT ) -. 1 2 / ASSESSEE BY : SHRI B.V.JHAVERI /0-. 1 2 / RESPONDENT BY : SHRI PITAMBAR DAS # 1 3) / DATE OF HEARING : 21.11.2013 45, 1 3) / DATE OF PRONOUNCEMENT : 04.12.2013 !6 / O R D E R PER VIJAY PAL RAO, JM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 17.10.2012 OF CIT(A) FOR THE ASSESSMENT YEAR 2009-1 0. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS:- 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ERR ED IN CONFIRMING THE ADDITIONS MADE BY THE LEARNED ASSESSING OFFICER, U/ S 68 BY TREATING THE SHARE APPLICATION MONEY OF RS.98,00,000/- RECEIVED FROM M /S PATEL ENTERPRISE AND RS.2,00,000/- RECEIVED FROM M/S MERCURY DEVELOPERS AS UNEXPLAINED CASH CREDIT WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAS DISCHARGED ITS ONUS OF PROVING THE GENUINENESS OF SHARE APPLICATION MONEY AGGREGAT ING TO RS.10,000,000/-. THE 2 ITA NO.7426/MUM/2012 AIM PROPERTIES & INVESTMENTS PVT.LTD . LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT APPRECIATING THE VARIOUS JUDICIAL PRECEDENTS ARGUED BY THE APPELLANT . 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ER RED IN CONFIRMING THE DECISION OF THE LEARNED ASSESSING OFFICER OF CONSID ERING COMPENSATION RECEIVED ON CANCELLATION OF GALA BOOKING AS INCOME UNDER THE H EAD INCOME FROM OTHER SOURCES INSTEAD UNDER THE HEADS PROFITS AND GAINS FROM BUSINESS AND PROFESSION. 2. GROUND NO.1 REGARDING THE ADDITION MADE U/S 68 O F THE INCOME-TAX ACT BY TREATING THE SHARE APPLICATION MONEY AS UNEXPLAI NED CASH CREDIT. THE ASSESSEE HAS RECEIVED RS. 98,00,000/- FROM M/S. PAT EL ENTERPRISES AND RS.2,00,000/- FROM M/S. MERCURY DEVELOPERS. THE SA ID MONEY WAS CREDITED IN THE BOOKS OF ACCOUNT AS SHARE APPLICATION MONEY. T HE AO ISSUED NOTICE U/S 133(6) TO THE CREDITORS. IN RESPONSE TO THE NOTICE REPLY WAS RECEIVED FROM M/S. MERCURY DEVELOPERS; HOWEVER NO REPLY WAS RECEIVED F ROM M/S PATEL ENTERPRISES. THE AO ASKED THE ASSESSEE TO PRODUCE THE MR KHAN NASIR AHMED PROPRIETOR OF M/S PATEL ENTERPRISES WITH NECESSARY DETAILS TO PROVE THE IDENTITY CREDITWORTHINESS OF THE PARTY AND GENUINENESS OF TH E TRANSACTIONS. AFTER SEVERAL OPPORTUNITIES, THE DETAILS AND THE STATEMEN T OF BANK ACCOUNT OF M/S PATEL ENTERPRISES WERE SUBMITTED. THE AO NOTICED T HAT NEITHER THEIR RETURN OF INCOME NOR THE BALANCE-SHEET NOR OTHER DETAILS OR B OOKS OF ACCOUNTS WERE PRODUCED. THE ASSESSEE EXPRESSED HIS INABILITY TO PRODUCE MR. KHAN NASIR AHMAD PROPRIETOR OF PATEL ENTERPRISES. THE AO, ADD ED THE ENTIRE SUM OF RS.1,00,00,000/- (98 LAKHS + 2 LAKHS) U/S 68 OF TH E ACT AS UNEXPLAINED CASH CREDIT. ON APPEAL, THE CIT(A) HAS ISSUED A REMAND ORDER. AFTER CONSIDERING THE REMAND REPORT, THE CIT(A) HAS CONFIRMED THE ADDITIO NS MADE BY THE AO U/S 68. 3. BEFORE US, THE LD. AR OF THE ASSESSEE HAS SUBMIT TED THAT THE ASSESSEE RECEIVED SHARE APPLICATION MONEY FROM THREE PARTIES NAMELY D. NARESH KUMAR OF RS.50,00,000/-, MS. MERCURY DEVELOPERS OF RS.2,0 0,000/- AND M/S. PATEL ENTERPRISES OF RS.98,00,000/-. THE ASSESSING OFFIC ER HAS ACCEPTED THE SHARE APPLICATION MONEY RECEIVED FROM D. NARESH KUMAR AND APPLICATION MONEY 3 ITA NO.7426/MUM/2012 AIM PROPERTIES & INVESTMENTS PVT.LTD . RECEIVED FROM PATEL ENTERPRISES AND MERCURY DEVELOP ERS WAS QUESTIONED. THE LD. AR HAS REFERRED THE LEDGER ACCOUNT OF M/S. MERC URY DEVELOPERS AND M/S. PATEL ENTERPRISES IN THE BOOKS OF THE ASSESSEE AND SUBMITTED THAT THE ENTIRE SHARE APPLICATION MONEY WAS RECEIVED THROUGH CHEQUE S. THE ASSESSEE PRODUCED THE BANK STATEMENTS OF THE PARTIES TO SHOW THE SOURCES OF SHARES APPLICATION MONEY PAID BY THE PARTIES. HE HAS ALSO REFERRED THE CONFIRMATION OF ACCOUNTS BY THE PARTIES. THE AO HAS NOT DISPUTED T HE DETAILS AND THE RECORD IN THE SHAPE OF BANK ACCOUNT AND CONFIRMATION OF ACCOU NTS BY THE PARTIES. THE ASSESSEE HAS ALSO PRODUCED THE RETURN OF INCOME OF THE PARTIES WITH PAN NUMBER WHICH ESTABLISHED THE IDENTITY AND CAPACITY OF THE CREDITORS. THE CREDITORS ARE ASSESSED TO TAX AND THE APPLICATION M ONEY HAS BEEN PAID FROM THE BANK ACCOUNT. HE HAS REFERRED THE BANK ACCOUNT OF THE PATEL ENTERPRISES AND SUBMITTED THAT THE MAJOR SOURCES OF MONEY IS TRANSF ERRED FROM THE CREDITED ACCOUNT AND OVERDRAFT FACILITIES AVAILED BY THE CRE DITOR AND THEREFORE, THE ASSESSEE HAS ESTABLISHED THE SOURCES AND CAPACITY O F THE CREDITOR FOR PAYMENT OF 98 LAKHS AS SHARE APPLICATION MONEY. THE LD. AR HAS FURTHER POINTED OUT THAT SINCE THE TRANSACTION OF ALLOTMENT OF SHARES C OULD NOT BE MATERIALIZED BECAUSE OF SOME DISPUTES BETWEEN THE PARTIES AND TH EREFORE THE ASSESSEE REFUNDED THE ENTIRE SHARE APPLICATION MONEY TO THE CREDITORS. HE HAS REFERRED AT PAGE 18 TO 21 OF THE PAPER BOOK TO SHOW THE DETA ILS AND THE STATEMENT OF BANK ACCOUNTS FROM WHERE THE ENTIRE RECEIPT AND REP AYMENT OF THE SHARE APPLICATION MONEY HAS BEEN EXPLAINED. HE HAS POINTE D OUT THAT THE ASSESSEE HAS REFUNDED RS.50 LAKHS RECEIVED FROM D.NARESH KUM AR ON 02.12.2009. THE APPLICATION MONEY RECEIVED FROM MERCURY DEVELOPERS OF RS.2 LAKHS WAS REFUNDED ON 06.10.2009 AND THE APPLICATION MONEY OF RS.98 LAKHS RECEIVED FROM PATEL ENTERPRISES WAS REFUNDED ON 18.08.2009. THE DETAILS OF THE REFUND HAVE BEEN DULY SHOWN IN THE BANK ACCOUNT OF THE ASS ESSEE AS THE REFUND WAS MADE THROUGH CHEQUE. THUS, THE LD. AR HAD SUBMITTE D THAT THE ASSESSEE HAS PROVED THE IDENTITY & CAPACITY OF THE CREDITORS BY FURNISHING RELEVANT RECORD OF SOURCES OF THE APPLICATION MONEY. THE ASSESSEE HAS ALSO PROVED THE 4 ITA NO.7426/MUM/2012 AIM PROPERTIES & INVESTMENTS PVT.LTD . GENUINENESS OF THE TRANSACTIONS BECAUSE WHEN THE TR ANSACTION OF ALLOTMENT OF SHARES WAS NOT MATERIALIZED THEN THE ASSESSEE REFUN DED THE SAME. THE LD. AR HAS REFERRED THE REPLY TO THE REMAND REPORT AND SUB MITTED THAT THE ASSESSEE HAS PRODUCED THE CONFIRMATION LETTER FROM SHRI NASI R AHMED KHAN WHEREBY THE GENUINENESS OF THE SHARE APPLICATION MONEY WAS CONF IRMED AND THEREAFTER WHEN THE ASSESSEE REFUNDED THE AMOUNT TO THE PARTIE S THEN THE GENUINENESS OF THE TRANSACTIONS CANNOT BE DOUBTED. THE LD. AR SUB MITTED THAT THE ASSESSEE HAS DISCHARGED ITS ONUS BY PRODUCING ALL THE RELEVA NT EVIDENCE THROUGH THEIR IDENTITY AND CREDITWORTHINESS OF THE CREDITORS AS W ELL AS GENUINENESS OF ALL THE TRANSACTIONS. EVEN, OTHERWISE, IF THE AO DOUBTS T HE CREDITWORTHINESS OF THE PARTY ON THE GROUND THAT SOME CASH WAS DEPOSITED IN THE BANK ACCOUNT THEN THIS IS A SUBJECT MATTER OF ASSESSMENT IN THE HANDS OF THE CREDITOR AND NOT IN THE HAND OF THE ASSESSEE. THE LD AR HAS RELIED UPO N THE FOLLOWING DECISIONS:- (I) SHIVANK UDYOG LTD. VS. ITO IN ITA NO.3144/DEL/2 011. (II) I.T.O. VS. PROVID TRADE IMPEX PVT. LTD. IN ITA NO.2219/MUM/2009 (III) I.T.O. VS. ALEX SECURITIES PVT. LTD. IN ITA NO.4241/MUM/2009. (IV) CIT VS. CREATIVE WORLD TELE-FILMS LTD. [333 ITR 100] (V) CIT VS. LOVELY EXPORTS PVT. LTD. [2009] 319 ITR (ST.) 5 (SC) (VI) SHREE BARKHA SYNTHETICS LTD. VS. ASST. CIT(283 ITR 377) (VII) M/S. UMA POLYMERS PVT. LTD. VS. DCIT [100 IT D 1, (TM) . (VIII) CIT VS DWARKADHISH INVESTMENT (P) LTD. (330 ITR 298 (IX) CIT VS. VALUE CAPITAL SERVICES LTD. (307 ITR 3 34, DELHI) (X) CIT VS. ARUNANANDA TEXTILES PVT. LTD. (333 ITR 116 KAR). 3. BY REFERRING THE ABOVE DECISION THE LD. AR HAS S UBMITTED THAT THE AO HAS IGNORED ALL THE EVIDENCES PRODUCED BY THE ASSESSEE AND MADE DISALLOWANCE ONLY ON THE GROUND THAT ASSESSEE FAILED TO PRODUCE SHRI NASIR AHMED KHAN THE 5 ITA NO.7426/MUM/2012 AIM PROPERTIES & INVESTMENTS PVT.LTD . PROPRIETOR OF MS. PATEL ENTERPRISES. WHEN THE AO H AS NOT MADE ANY INQUIRY WITH REGARD TO THE EVIDENCE PRODUCED BY THE ASSESSE E THEN THE ADDITION MADE BY THE AO IS NOT SUSTAINABLE. HE HAS FURTHER CONTEN DED THAT THE PRODUCTION OF THE CREDITOR IS BEYOND THE CONTROL OF THE ASSESSEE AND THE AO CAN EXERCISE ITS POWERS FOR ENSURING THE PRESENCE OF THE CREDITORS. THE ASSESSEE PRODUCED ALL THE RELEVANT EVIDENCES TO PROVE AND DISCHARGE ITS O NUS. HE HAS REFERRED THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F LOVELY EXPORTS PVT. LTD. (SUPRA) AND SUBMITTED THAT WHEN THE SHARE APPLICATI ON MONEY IS RECEIVED BY THE ASSESSEE FROM SHAREHOLDERS WHOSE NAME IS GIVEN TO THE ASSESSING OFFICER, THEN THE DEPARTMENT IS FREE TO PROCEED TO REOPEN TH EIR INDIVIDUAL ASSESSMENT IN ACCORDANCE WITH LAW BUT IT CANNOT BE REGARDED AS UN DISCLOSED INCOME OF THE ASSESSEE. THUS, THE LD. AR HAS URGED THAT THE ADDI TION MADE BY THE AO BE DELETED IN VIEW OF THE VARIOUS DECISIONS RELIED UPO N BY HIM. 4. ON THE OTHER HAND THE LD. DR HAS SUBMITTED THAT THE ASSESSEE HAS PROVIDED ONLY THE IDENTITY OF THE CREDITORS BUT FAI L TO ESTABLISH THE CREDITWORTHINESS OF THE CREDITORS AND GENUINENESS O F THE TRANSACTIONS. HE HAS RELIED UPON THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT AO HAS POINTED OUT THAT IN THE CASE M/S. PATEL ENTE RPRISES HUGE CASH HAS BEEN DEPOSITED IN THE BANK ACCOUNTS AT REGULAR INTERVALS AND EVEN A SUM OF RS. 56 LAKHS WAS TRANSFERRED FROM OVERDRAFT ACCOUNT AND AG AIN CASH WAS DEPOSITED IN THE CURRENT ACCOUNT OF M/S. PATEL ENTERPRISES. THE AO HAS GIVEN A FINDING THAT IT WAS NOT POSSIBLE TO VERIFY THE SOURCE OF THIS CA SH DEPOSIT IN BANK ACCOUNT AND THEREFORE THE ASSESSEE FAILED TO ESTABLISH THE CREDITWORTHINESS OF THE CREDITORS. HE HAS REFERRED PARA 5.2.5 OF CIT(A) AN D CONTENDED THAT CIT (A) HAS RELIED UPON THE DECISION OF FULL BENCH OF HONBLE D ELHI HIGH COURT IN THE CASE OF SOPHIA FINANCE LTD. (205 ITR 1998) WHEREIN THE HON BLE HIGH COURT HAS HELD THE SECTION 68 IS APPLICABLE IN RESPECT OF SHARE AP PLICATION MONEY. THE LD. DR REFERRED THE REMAND REPORT AND SUBMITTED THAT THE A O ASKED TO FURNISH THE VARIOUS DETAILS INCLUDING RETURN OF INCOME, COMPUTA TION OF INCOME, BALANCE- 6 ITA NO.7426/MUM/2012 AIM PROPERTIES & INVESTMENTS PVT.LTD . SHEET, DETAILS OF SHARE ALLOTTED AND AMOUNT INVESTE D BY THE ASSESSEE. THESE DETAILS WERE NOT FURNISHED BY THE ASSESSEE AT THE T IME ASSESSMENT PROCEEDINGS THEREFORE THE ASSESSEE FAILED TO DISCHARGE ITS ONUS . IN REBUTTAL, THE LD. AR HAS SUBMITTED THAT THE AO HIMSELF HAS MADE AN INQUIRY F ROM THE ASSESSING OFFICER OF PATEL ENTERPRISES OFFICE OF MR. NASIR AHMED KHAN AND FOUND THAT THE RETURN WAS PROCESSING IN THE SYSTEM THEREFORE WHEN THE CRE DITOR IS ASSESSED TO TAX THEN THE CREDITWORTHINESS AND GENUINENESS OF TRANSA CTIONS STANDS PROVED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. FROM THE IMPUGNED ORDERS OF THE AUTHORITIE S BELOW WE NOTE THAT THE ADDITION U/S 68 HAS BEEN MADE MERELY ON THE GROUND THAT THE ASSESSEE FAILED TO PRODUCE THE CREDITORS IN PERSON BEFORE THE ASSES SING OFFICER. THE AO HAS GIVEN MUCH EMPHASIZE ON THE PERSONAL APPEARANCE OF THE CREDITORS THAN THE RELEVANT EVIDENCE FILED BY THE ASSESSEE IN SUPPORT THE ITS CLAIM. WE FIND THAT THE ASSESSEE HAS PRODUCED THE BANK ACCOUNTS STATEME NT OF THE CREDITORS FROM WHICH SHARE APPLICATION MONEY WAS PAID TO THE ASSES SEE. THE ASSESSEE HAS ALSO PRODUCED THE CONFIRMATION FROM THE PARTIES. T HESE EVIDENCES CLEARLY MANIFEST THAT THE TRANSACTIONS OF PAYMENT OF APPLIC ATION MONEY WAS THROUGH BANK ACCOUNTS. THE ASSESSING OFFICER HAS NOT MADE ANY INQUIRY TO PROVE THAT THE EVIDENCE PRODUCED BY THE ASSESSEE IS NOT CORREC T OR BOGUS. WE FURTHER NOTED THAT THE CREDITORS ARE ASSESSED TO TAX AND TH E ASSESSEE FURNISHED ALL THE DETAILS REGARDING THE RETURN OF INCOME AND PAN NUMB ERS OF THE CREDITORS. THEREFORE, THERE IS NO DISPUTE REGARDING THE IDENTI TY OF THE CREDITORS. EVEN, OTHERWISE, THE AO HAS ALSO DISPUTED THE IDENTITY OF THE CREDITORS. AS FAR AS THE CREDITWORTHINESS OF CREDITOR IS CONCERNED WHEN THE ASSESSEE HAS FURNISHED THE COMPLETE DETAILS OF THE BANK ACCOUNTS INCLUDING THE AMOUNTS DEPOSITED IN THE BANK ACCOUNTS AND SOURCES OF THE SAID DEPOSITED, TH EN THE ASSESSEE HAS DISCHARGED ITS ONUS OF PROVING THE CAPACITY AND THE SOURCES OF THE APPLICATION MONEY. IF THE AO STILL DOUBTS THE CAPACITY AND GEN UINENESS OF THE SOURCES OF DEPOSIT IN THE BANK ACCOUNT OF THE CREDITORS THEN I T WOULD BE A SUBJECT MATTER 7 ITA NO.7426/MUM/2012 AIM PROPERTIES & INVESTMENTS PVT.LTD . OF ASSESSMENT IN THE HAND OF THE CREDITORS AND CANN OT BE A GROUND FOR TREATING THE AMOUNT AS UNEXPLAINED CASH CREDIT IN THE HANDS OF THE ASSESSEE. THE AO HAS ACCEPTED THAT IN THE CASE OF PATEL ENTERPRISES, A SUM OF RS.56,00,000/- WAS TRANSFERRED FROM THE OVERDRAFT ACCOUNT. THE OV ERDRAFT WAS RAISED FROM THE CURRENT ACCOUNT AND OTHER AMOUNTS DEPOSITED. ONCE T HE ENTIRE DETAILS OF THE AMOUNT CREDITED IN THE BANK ACCOUNT OF THE CREDITOR FROM WHERE THE APPLICATION MONEY HAS BEEN PAID THEN DOUBT OF THE SOURCE OF SOU RCE CANNOT BE REASON FOR MAKING THE ADDITIONS U/S 68 AS UNEXPLAINED CASH CRE DIT IN THE HANDS OF THE ASSESSEE. WE FURTHER NOTED THAT IN THE REMAND REP ORT, THE AO HAS ADMITTED THE PARTICULARS FURNISHED BY THE ASSESSEE AND INQUI RY WAS MADE FROM CONCERNED ASSESSING OFFICER OF THE CREDITORS. THE AO HAS MENTIONED IN THE REMAND REPORT THAT THIS OFFICE HAS CALLED FOR REPOR T FROM THE ASSESSING OFFICER OF THE CREDITOR TO KNOW THE STATUS OF THE ASSESSMENT B UT REPORT WAS STILL AWAITED FROM THE AO CONCERNED. THUS IT GOES TO PROVE THAT THE CREDITORS ARE SUBJECT TO ASSESSMENT AND IF THE SOURCES OF APPLICATION MONEY PAID BY THE CREDITORS IS IN DOUBT THE REVENUE IN ITS POWER TO CONSIDER THE SAME IN THE ASSESSMENT OF THE CREDITORS. THE ASSESSEE HAS REFUNDED THE ENTIRE SH ARE APPLICATION MONEY TO THE PARTIES BECAUSE ALLOTMENT OF SHARES COULD NOT BE MA TERIALIZED WHICH FURTHER STRENGTHEN THE CASE OF THE ASSESSEE THAT THE TRANSA CTION IS GENUINE. THERE ARE SERIES OF DECISIONS ON THIS POINT WHEN THE IDENTITY AND THE CAPACITY OF THE CREDITORS HAS BEEN PROVED BY THE ASSESSEE AND SOURC ES BEING THE BANKING CHANNEL ALSO ESTABLISHED BY PRODUCING RELEVANT EVID ENCE THEN WITHOUT FINDING ANY DEFECT IN THE EVIDENCE PRODUCED BY THE ASSESSEE , THE AO IS NOT JUSTIFIED TO MAKE THE ADDITION SOLELY ON THE GROUND THAT THE ASS ESSEE FAILED TO PRODUCE THE CREDITORS IN PERSON. 6. ACCORDINGLY, IN VIEW OF THE FACTS AND CIRCUMSTAN CES OF THE CASE, WE HOLD THAT THE ADDITION MADE BY THE AO IS NOT JUSTIFIED A S THE ASSESSEE HAS DISCHARGED ITS ONUS OF PROVING THE IDENTITY AND THE CAPACITY OF THE CREDITORS AS WELL AS THE GENUINENESS OF THE TRANSACTIONS. THE D ECISIONS RELIED UPON BY THE 8 ITA NO.7426/MUM/2012 AIM PROPERTIES & INVESTMENTS PVT.LTD . AUTHORITIES BELOW ARE CLEARLY DISTINGUISHABLE AS TH E FACT IN ALL THOSE CASES, THE APPLICATION MONEY WAS RECEIVED IN CASH AND IN SOME CASES THE INVESTORS WAS NOT FOUND IN EXISTENCE THEREFORE THOSE DECISIONS AR E NOT APPLICABLE IN THE FACTS OF THE PRESENT CASE. IT IS NOT THE CASE OF THE REV ENUE THAT THE CREDITORS HAVE ANY NEXUS OR RELATION WITH THE ASSESSEE EXCEPT BEIN G INVESTORS BY MAKING PAYMENT OF THE APPLICATION MONEY. ACCORDINGLY, WE DELETE THE ADDITIONS MADE U/S 68 OF THE INCOME-TAX ACT. 7. GROUND NO.2 REGARDING THE ADDITION ON ACCOUNT OF COMPENSATION RECEIVED BY THE ASSESSEE ON CANCELATION OF GALA BOOKING. AT THE TIME OF HEARING BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE DOES NOT PRESS GROUND NO. 2 RAISED IN THIS APPEAL OF THE ASS ESSEE AND THE SAME MAY BE DISMISSED AS NOT PRESSED. THE LD. DR HAS NO OBJECTI ON IF GROUND NO.2 IS DISMISSED AS NOT PRESSED. ACCORDINGLY, GROUND NO.2 IS DISMISSED BEING NOT PRESSED. 8. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS PART LY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 4/12/2013 !6 1 45, ) 7!# 04/12/2013 , 5 1 8 SD/- ( N.K.BILLAIYA ) SD/- (VIJAY PAL RAO) ) !' / ACCOUNTANT MEMBER !' / JUDICIAL MEMBER MUMBAI; 7!# /DATED : 4 TH DECEMBER, 2013. F{X~{T? P.S. 9 ITA NO.7426/MUM/2012 AIM PROPERTIES & INVESTMENTS PVT.LTD . !6 1 /39 :,3 / COPY OF THE ORDER FORWARDED TO : (1) # +;3 / THE ASSESSEE; (2) ' / THE REVENUE; (3) < ( ) / THE CIT(A); (4) < / THE CIT, MUMBAI CITY CONCERNED; (5) =8 /3# , , / THE DR, ITAT, MUMBAI; (6) 8>+ ? / GUARD FILE. 03 /3 / TRUE COPY !6# / BY ORDER @ / A / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI