The DCIT, (OSD) Range-1, Ahmedabad V. Busy Bee Engineering Pvt. Ltd., Ahmedabad

ITA 841/AHD/2005

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 2028 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 9 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2009
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 05-11-2009
• Assessment Year: 1998-1999
• Appeal Filed On: 17-03-2005
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Share purchase agreement; Additional evidence; Set aside
• Section: 205; 68

Judgement Text

- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE S/SHRI T.K. SHARMA, JM AND D.C.AGRAWAL, AM BUSY BEE ENGINEERING (P) LTD., 10 TH FLOOR, SILICON TOWER, B/H SAMRATHESHWAR TEMPLE, LAW GARDEN, ELLISBRIDGE, AHMEDABAD. V/S . DY COMMISSIONER OF INCOME-TAX, CIR-7(3), AHMEDABAD. PAN NO.31-135-CZ-4701 (APPELLANT) .. (RESPONDENT) AND DY COMMISSIONER OF INCOME-TAX, CIR-7(3), AHMEDABAD. V/S . BUSY BEE ENGINEERING (P) LTD., 10 TH FLOOR, SILICON TOWER, B/H SAMRATHESHWAR TEMPLE, LAW GARDEN, ELLISBRIDGE, AHMEDABAD. PAN NO.31-135-CZ-4701 ITA NOS.730/AHD/2005 ASST. YEAR : 1998-99 ITA NOS.841/AHD/2005 ASST. YEAR : 1998-99 2 (APPELLANT) .. (RESPONDENT) ASSESSEE BY :- SHRI ANIL N. SHAH, AR RVENUE BY:- SHELLEY JINDAL, CIT, DR O R D E R PER BENCH THERE ARE TWO APPEALS ONE BY THE ASSESSEE AND THE OTHER BY THE REVENUE AGAINST THE ORDER OF CIT(A) DATED 31.12.200 4. GROUNDS RAISED BY THE ASSESSEE IN ITS APPEAL ARE AS UNDER :- 1. THAT THE LD. CIT(A) HAS ERRED BOTH IN LAW AND ON TH E FACTS OF THE CASE IN NOT ADJUDICATING THE GROUND NOS. 1 TO 3 WHI CH REQUIRES TO BE ADJUDICATED. 2. THE BOOKS OF ACCOUNTS OF THE COMPANY ARE AUDITED AN D WITHOUT CONSIDERING IT PROPERLY THE HUGE ADDITIONS OF RS.4, 20,97,012/- HAVE BEEN MADE BY LD. AO AND AMOUNT RS.2,83,20,949/ - CONFIRMED BY CIT(A) IS NOT PROPER, JUST AND LEGAL. 3. THAT THE LD. CIT(A) HAS FURTHER ERRED IN CONFIRMING THE ADDITIONS OF RS.1,49,71,718/- HOLDING IT AS UNEXPLAINED CREDI T/DEPOSIT EVEN THOUGH IT IS NOT A CREDIT OR DEPOSIT BUT INSTA LLMENT AMOUNT FOR BOOKING OF SHOPS, OFFICES AND FLATS AND THEREFO RE THE SAME DESERVES TO BE DELETED. 4. THAT THE APPELLANT HAS FURNISHED THE DETAILS DURING THE COURSE OF APPELLANT PROCEEDINGS AND THE MOST OF THE PAYMENTS HAVE BEEN RECEIVED BY ACCOUNT PAYEE CHEQUES, THEIR CONFIRMATI ONS HAVE BEEN FILLED. HOWEVER, THE ADDITIONS OF RS.1,49,71,7 18/- CONFIRMED BY CIT(A) IS AGAINST THE MATERIALS AVAILA BLE ON RECORD WHICH DESERVES TO BE DELETED. 3 5. THAT THE APPELLANT HAS FILED CONFIRMATORY LETTER FR OM SAMARTHKRUPA CO.OP. HOUSING SOCIETY EVEN THOUGH THE ADDITIONS OF RS.6 LAC CONFIRMED BY LD. CIT(A) ON UN WANTED GROUNDS DESERVES TO BE DELETED. 6. THAT THE APPELLANT HAS FURNISHED VARIOUS SUBMISSION S DURING THE COURSE OF APPELLATE PROCEEDINGS WHICH HAVE NOT BEEN PROPERLY APPRECIATED BY LD. CIT(A) BEFORE RETAINING THE ADDI TIONS AND THEREFORE CONSIDERING THE SAME, IT DESERVES TO BE D ELETED. 7. THAT THE FINDING GIVEN BY THE LD. CIT(A) FOR CONFIR MING THE SAID ADDITIONS, WHICH IS AGAINST THE MATERIAL AVAILABLE ON RECORD AND CONSIDERING THE SAME THE ADDITIONS DESERVES TO BE D ELETED. 8. THAT THE LD. AO HAS FURTHER ADDED RS.1,24,29,697/- AS ALLEGED UNEXPLAINED CASH CREDIT AND OUT OF WHICH THE LD. CI T(A) HAS RETAINED THE ADDITIONS OF RS.1,01,92,751/- HOLDING IT AS UNEXPLAINED CASH CREDIT WHICH IS AGAINST THE PROVIS IONS OF SECTION 68 OF THE IT ACT, 1961. 9. THAT THE LD. CIT(A) HAS FURTHER ERRED IN DISALLOWIN G THE INTEREST EXPENDITURE AMOUNTING TO RS.18,34,695/- EVEN THOUGH IT IS ADMISSIBLE U/S 36(1)(III) OF THE IT ACT, 1961. 10. THAT THE DEDUCTION OF INTEREST CLAIMED HAS BEEN ALL OWED IN PRECEDING YEAR AND SUBSEQUENT YEARS AND THERE ARE N O DISTINGUISHING FEATURES THEREFORE DISALLOWANCE OF I NTEREST RETAINED TO THE EXTENT OF RS.18,34,695/- DESERVES T O BE ALLOWED. 11. THAT THE LD. CIT(A) HAS FURTHER ERRED IN CONFIRMING DISALLOWANCE OF INTEREST AMOUNTING TO RS.13,21,785/ -. 12. THAT THE LD. CIT(A) HAS NOT APPRECIATED THE FACTS T HAT APPELLANT HAS SHOWN INTEREST INCOME AND ALSO CLAIMED DEDUCTIO N AND IGNORING THESE FACTS EVEN THOUGH AVAILABLE ON RECOR D, THE ADDITIONS OF RS.13,21,785/- CONFIRMED BY CIT(A) REQ UIRES TO BE DELETED. 13. THAT THE ASSESSMENT ORDER PASSED BY LD. AO AND CONF IRMED BY CIT(A) EVEN THOUGH THE APPELLANT WAS PREVENTED BY R EASONABLE AND SUFFICIENT CAUSE AND EVIDENCES ARE LYING ON THE RECORD THE LD. AO EVEN THOUGH JUSTICE WAS NOT DONE TO THE APPE LLANT AND THEREFORE ASSESSMENT ORDER DESERVES TO BE CANCELLED . 4 14. THAT THE LD. CIT(A) HAS FAILED TO APPRECIATE THE SU BMISSIONS MADE BY THE APPELLANT VIDE ITS LETTER DATED 14.12.0 4 RECEIVED BY LD. CIT(A)-V EVEN THOUGH THERE IS NO ANY DISCUSSION S FOR AND AGAINST IN THE APPELLATE ORDER AND MERELY ON THE BA SIS OF REMAND REPORT FROM THE DEPARTMENT THE APPEAL HAS BEEN DECI DED, IGNORING THE MATERIALS AND SUBMISSIONS SUBMITTED BY THE APPELLANT DURING THE COURSE OF APPELLATE PROCEEDING S AND ALSO SUBMISSIONS AGAINST THE REMAND REPORT OF THE LD. AO AND AS SUCH THE SAME HAVE NOT BEEN CONSIDERED BY THE LD. C IT(A) AND CONSIDERING THE SAME APPEAL OF THE APPELLANT BE DEC IDED ON MERITS. 15. THAT THE LD. AO HAS GIVEN VAGUE FINDING IN THE ASS ESSMENT ORDER FOR CHARGING OF INTEREST U/S 234(B) EVEN THOU GH THE LD. CIT(A) HAS NOT DELETED THE SAME WHICH REQUIRES TO B E DELETED. 16. THAT THERE IS NO ANY FINDING IN THE ASSESSMENT ORDE R FOR CHARGING OF INTEREST U/S 234(C) EVEN THOUGH, THE LD. CIT(A) HAS NOT GIVEN CATEGORICAL FINDING FOR THIS GROUND AND CONSIDERING THE PROVISIONS OF THE ACT, THE UNWANTED INTEREST CHARGE D BY THE LD. AO AND RETAINED BY CIT(A) WITHOUT ANY FINDING DESER VES TO BE DELETED. WHEREAS THE GROUNDS RAISED BY THE REVENUE IN ITS AP PEAL ARE AS UNDER :- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN ALLOWING UNEXPLAINED CREDIT/DEPOSITS IN THE NAME OF SILICON VALLEY SOCIETY AND SAMARTHKRUPA SOCIETY OF RS.1,11, 36,478/-. 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN ALL OWING UNSECURED LOAN/DEPOSITS OF RS.22,36,946/-. 3. THE CIT(A) HAS ERRED IN LAW ON FACTS IN ALLOWING IN TEREST EXPENSES ON UNEXPLAINED CASH CREDIT OF RS.4,02,649/ - 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE AO. 2. THE FACTS RELATING TO THE TWO APPEALS ARE THAT T HE ASSESSEE IS A BUILDER AND HAS UNDERTAKEN CONSTRUCTION OF FLATS FO R HOUSING SOCIETY NAMELY SAMARTHKRUPA CO-OP. HOUSING SOCIETY LTD. AND SILICON VALLEY CO-OPERATIVE HOUSING SOCIETY LTD. THE ASSESSING OFF ICER EXAMINED THE 5 SCHEDULE 4 OF THE BALANCE SHEET AND NOTICED THAT AS SESSEE HAS OPTED NEW LOANS, ACCEPTED DEPOSITS AND PAID INTEREST. THE ASS ESSING OFFICER REQUIRED THE ASSESSEE TO EXPLAIN THE CREDITS BUT THE ASSESSE E FAILED TO EXPLAIN THEIR DEFECTS AND THEREFORE THE ASSESSING OFFICER PROPOS ED FOLLOWING ADDITIONS:- UNEXPLAINED CASH CREDITS AS DISCUSSED IN PARA NO.3 1,24,29,697 2 INT. EXP. ON UNEXPLAINED CASH CREDIT AS DISCUSSED IN PARA 3 22,37,344 3 INT. EXPENSES AS DISCUSSED IN PARA 4 13,21,785 4 UNEXPLAINED CASH CREDITS AS DISCUSSED IN PARA NO.5 2,61,08,186 TOTAL INCOME 4,20,97,012 3. EACH ADDITION SO PROPOSED BY THE ASSESSING OFFIC ER IS DISCUSSED AS UNDER AS DEALT BY ASSESSING OFFICER AND LD. CIT(A). 3.1. UNEXPLAINED CREDITS AMOUNTING TO RS.1,24,29,69 7. WHEN ASSESSING OFFICER EXAMINED THE BALANCE SHEET HE FOUND THAT TH E ASSESSEE HAS OBTAINED NEW UNSECURED LOAN OF RS.1,34,29,697/- (BA LANCE AS ON 31.3.1998 RS.3,73,38,703 BALANCE AS ON 31.3.1997 RS.2,39,09,006/-). THE ASSESSING OFFICER CALLED CONFIRMATIONS, DETAILS FOR VERIFICATIONS FROM THE ASSESSEE BUT IT SEEMS ASSESSEE FURNISHED CONFIR MATORY DETAILS IN RESPECT OF A SUM OF RS.14,60,000/- ONLY. OUT OF THE SE DETAILS ASSESSING OFFICER NOTED THAT DETAILS TO THE EXTENT OF RS.4,60 ,000/- ARE NOT ACCEPTABLE FOR THE FOLLOWING REASONS :- 6 NAME OF THE PARTY AMT. RECEIVED DURING THE YEAR REMARKS SHREE INVESTMENT 2,00,000/- A/C WITHOUT SIGNATURE RANA P. BHAT 50,000/- NOT ASSESSED TO TAX DHIRAJBHAI PARSANA ALKABEN H. SHROFF 50,000/- 60,000/- NO CONFIRMATION FILED ANAL H. SHROFF 1,00,000/- NO DETAILS/CONFIRMATION FILED HE, THEREFORE, REJECTED THE EXPLANATION IN RESPECT OF A SUM OF RS.4,60,000/- OUT OF DETAILS ALLEGEDLY FURNISHED IN RESPECT OF SOME OF RS.14,60,000/-. OUT OF TOTAL SUM OF RS.1,34,29,697/ - BEING FRESH UNSECURED LOAN DURING THIS YEAR NO DETAILS/CONFIRMA TION IN RESPECT OF SUM OF RS.1,19,69,697/- (1,34,29,697 -14,60,000) WERE F URNISHED. HE ACCORDINGLY TREATED THIS SUM AS ADDITION UNDER SECT ION 68. THUS HE PROPOSED AN ADDITION OF RS.1,19,69,697/- + RS.4,60, 000/- TOTALING TO RS.1,24,29,697/-. 3.2 DISALLOWANCE NO.2 OF RS.22,37,344/ - -SINCE ASSESSING OFFICER HAD TREATED THE SUM OF RS.1,24,29,697/- AS CASH CREDITS NOT PROVED, HE DISALLOWED INTEREST @ 18% THEREON AT RS.22,37,344/- AND PROPOSED THE ADDITION. 3.3 REGARDING DISALLOWANCE NO.3 OF SUM OF RS.13,21, 785/-: THE ASSESSEE CLAIMED INTEREST EXPENSES OF RS.35,59,129/ -. THE ASSESSING OFFICER NOTICED THAT ASSESSEE HAS ADVANCED A SUM OF RS.6,96,85,941/- TO OTHERS IN RESPECT OF WHICH BUSINESS PURPOSE WAS NOT ESTABLISHED. HE 7 ACCORDINGLY TREATED THE ENTIRE SUM OF RS.35,59,129/ - BEING THE INTEREST CLAIMED ON INTEREST BEARING FUNDS BORROWED AS DISAL LOWABLE. THE ASSESSING OFFICER HAD ALREADY CONSIDERED DISALLOWAN CE OF RS.22,37,344/- BEING THE INTEREST @ 18% IN RESPECT OF SOME OF RS.1 ,24,29,697/-. HE ACCORDINGLY PROPOSED THE DIFFERENCE BETWEEN RS.35,5 9,129/- - RS.22,37,344/- BEING RS.13,21,785/-SEPARATELY BEING INTEREST DISALLOWED ON INTEREST BEARING FUNDS DIVERTED FOR NON-BUSINESS PURPOSES. 3.4 DISALLOWANCE NO.4 OF RS.2,61,08,186/- ON VERIFICATION OF SCHEDULE 7 OF THE BALANCE SHEET THE ASSESSING OFFICER NOTICE D THAT ASSESSEE HAS RECEIVED DEPOSITS FROM CO-OPERATIVE SOCIETIES AS UN DER :- THE ASSESSING OFFICER ASKED THE ASSESSEE TO EXPLAIN THE NATURE AND SOURCE OF FRESH DEPOSITS RECEIVED THIS YEAR BUT NO DETAILS WERE FURNISHED, THEREFORE, THE ASSESSING OFFICER PROPOSED THE ADDIT ION OF FRESH DEPOSITS THIS YEAR UNDER SECTION 68. 4. LD. CIT(A) EXAMINED THE MATTER AFRESH, ADMITTED ADDITIONAL EVIDENCE, PROVIDED OPPORTUNITY TO THE ASSESSING OFF ICER, CALLED FOR REMAND REPORTS FROM THE ASSESSING OFFICER, GAVE OPP ORTUNITY TO ASSESSEE NAME OF THE SOCIETY BAL. AS ON 31.3.98 BALANCE AS ON 31.3.97 ADDITION DURING THE YEAR SMARTH KRUPA CO- OP. HOUSING LTD. 3,47,65,500/- 3,59,71,885/- NIL SILICON VALLEY MEMBERS 3,39,28,187/- 84,20,001/- 2,55,08,186/- ADVANCE FROM SMARTH KRUPA HSG. SOCY.LTD. 90,00,000/- 3,00,000/- 6,00,000/- 2,61,08,186/- 8 ALSO BY FORWARDING COPY OF REMAND REPORT TO HIM AS DETAILS DISCUSSED BY HIM IN THE APPELLATE ORDER AND CAME TO THE CONCLUSI ON AS UNDER : 5. DURING ASSESSMENT PROCEEDINGS ASSESSING OFFICER ISSUED SUMMONS, CALLED FOR CONFIRMATION AND DETAILS FROM VARIOUS DE POSITORS/PARTIES FROM WHOM LOANS WERE TAKEN. SOME OF THE PARTIES FURNISHE D CONFIRMATORY LETTERS AND SOME DETAILS ON THE BASIS OF WHICH LD. CIT(A) CONSIDERED CREDITS TO THE EXTENT OF RS.22,36,946/- AS EXPLAINE D OUT OF TOTAL ADDITION OF RS.1,24,29,697/- UNDER FIRST ISSUE AND BALANCE SUM OF RS.1,01,92,751/- WAS TREATED AS UNEXPLAINED AND ACCORDINGLY ADDITION TO THIS EXTENT WAS CONFIRMED. FOLLOWING THIS, HE BIFURCATED THE DISALL OWANCE OUT OF INTEREST ADDITION. HE WORKED OUT DISALLOWABLE INTEREST AT RS .18,34,695/- AND ACCORDINGLY ALLOWED RELIEF OF RS.4,02,649/- OUT OF ADDITION OF RS.22,37,344/-. 6. IN RESPECT OF OTHER ADDITION OF RS.13,21,785/- B EING INTEREST DISALLOWED IN RESPECT OF INTEREST BEARING FUNDS DIV ERTED FOR NON-BUSINESS PURPOSES, LD. CIT(A) DID NOT FIND EXPLANATION SUBMI TTED BY THE ASSESSEE AS SATISFACTORY AS NO BUSINESS PURPOSE OF ADVANCING OF FUNDS OF RS.6,96,85,941/- WAS ESTABLISHED. HE CONFIRMED ACCO RDINGLY ADDITION OF RS.13,21,785/-. 7. REGARDING ADDITION OF RS.2,61,08,186/-, LD. CIT( A) AND ASSESSING OFFICER IN ASSESSMENT PROCEEDINGS OBTAINED CERTAIN BANK STATEMENTS/ALLOTMENT LETTERS COPY OF ACKNOWLEDGEMEN TS OF RETURNS ETC. AND CAME TO THE CONCLUSION THAT DEPOSITS AMOUNTING TO R S.1,11,36,478/- ARE EXPLAINED. HE ACCORDINGLY CONFIRMED THE ADDITION IN RESPECT OF BALANCE SUM OF RS.1,49,71,718/-. THE LD. CIT(A) HAS ANNEXED THE LIST OF THOSE CASES WHERE ADDITIONS HAVE BEEN CONFIRMED AS ANNEXU RE A, B AND C TO HIS ORDER. 9 8. BEFORE US LD. AUTHORISED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT GROUND NOS.1 & 3 HAVE NOT BEEN ADJUDICATED BY LD. CIT(A). REGARDING ADDITION OF RS.1,49,71,718/- CONFIRMED BY LD. CIT(A) OUT OF RS.2,61,08,186/-, LD. AUTHORISED REPRESENTATIVE SUB MITTED THAT THEY ARE NEITHER CREDITS, NOR DEPOSITS BUT INSTALMENTS OF AM OUNTS RECEIVED BY THE ASSESSEE FOR BOOKING OF SHOPS, OFFICES AND FLATS. H E HAS IGNORED THE FACT THAT MOST OF THE PAYMENTS ARE RECEIVED BY ACCOUNT P AYEE CHEQUES. ASSESSEE HAS FURNISHED CONFIRMATIONS FROM DEPOSITOR -MEMBERS WHICH HAVE BEEN FILED AND ARE AVAILABLE ON RECORD. THE AD DITION HAS BEEN MADE BY THE ASSESSING OFFICER MERELY ON COMPARISON OF CL OSING AND OPENING BALANCES. THE AUTHORITIES HAVE NOT CONSIDERED EACH CASE MEMBER-WISE AND DETAILS FURNISHED BY THEM HAVE NOT BEEN PROPERLY AN D CORRECTLY APPRECIATED. FURTHER VERY SMALL TIME WAS GIVEN BY T HE AUTHORITIES FOR FURNISHING COMPLETE DETAILS WHICH HAVE NOT BEEN FUR NISHED BY SOME MEMBERS. NOTWITHSTANDING, THE LD. AUTHORISED REPRES ENTATIVE SUBMITTED THAT THERE WAS A MASSIVE AND KILLER EARTH-QUAKE ON 26.01.2001 AS A RESULT OF WHICH MOST OF THE DEPOSITORS WERE SCARED AND THE Y WERE NOT LIVING NORMAL LIFE. THUS CONFIRMATION FROM ONLY 36 DEPOSIT ORS OUT OF TOTAL 77 MEMBERS/CUSTOMERS COULD BE OBTAINED. NOW THE PAPER BOOK SUBMITTED BY THE ASSESSEE CONTAINED THE DETAILS IN RESPECT OF AL L THE MEMBERS/DEPOSITORS WITH A PRAYER TO ADMIT THE ADDITIONAL EVIDENCES IN THE INTEREST OF JUSTICE. REGARDING VARIOUS DOCUMENTS AND CERTIFICATES ISSUED TO THE MEMBERS BY THE SILICON VALLEY CO-OP. HOUSING SOCIETY, LD. AUTH ORISED REPRESENTATIVE SUBMITTED THAT FOLLOWING DOCUMENTS HAVE BEEN ISSUED , COPIES OF WHICH ARE ANNEXED IN THE PAPER BOOK: (I) VARIOUS CERTIFICATES ISSUED TO THE MEMBERS BY T HE SILICON VALLEY CO-OP HOUSING SOCIETY LTD. (A) ALLOTMENT CERTIFICATE/LETTER (E.G.PG.84 & 103, PAPER BOOK-4) 10 (B) NO OBJECTION CERTIFICATE TO OBTAIN LOAN AGAINST MORTGAGE OF THEIR RESPECTIVE SHOP/FLAT (E.G.PG.NO.5 PAPER BOOK -4) (C) POSSESSION LETTER (E.G.PG.NO.6 PAPER BOOK -4) (D) SHARE CERTIFICATE (E.G. NO.119, PAPER BOOK -4) (E) MONEY RECEIPT ISSUED TO THE MEMBER FOR THEIR DI RECT PAYMENT TO SOCY. IN RESPECT OF MAINTENANCE DEPOSIT, SHARE C APITAL (I.E.PG.NO.102, PAPER BOOK 4). (F) ENDORSEMENT ON SHARE CERTIFICATE AS REGARD TRAN SFER OF SHARE ON TRANSFER OF THE FLAT/SHOT (E.G.PG.NO.180 PAPER B OOK -4) (G) APPLICATION FOR TRANSFER OF UNIT/SHARES (E.G.PG .NO.181 PAPER BOOK 4) (H) PROOF/CERTIFICATE OF DEATH IN CASE OF TRANSFER OF UNIT TO LEGAL HEIR (I.E. PG.NO.180 PAPER BOOK -4) (I) COPY OF WILL IN CASE OF TRANSFER OF UNIT TO LE GAL HEIR (I.E. PG.NO.185 -192 PAPER BOOK -4) (II) MUNICIPAL TAX BILL FROM THE AHMEDABAD MUNICIPA L CORPORATION (AMC) WHEREIN THE NAME OF THE RESPECTIVE MEMBER APP EARS AND THE DETAILS OF THE FLAT/SHOP ON WHICH MUNICIPAL TAX IS ASSESSED BY THE AMC (E.G.PG.NO.105 PAPER BOOK-4) (III) A WORKING OF THE TAX FOR THE EARLIER YEARS AS CAN BE VERIFIED FROM THE WEB.HTTP://WWW.EGOVAMC.COM/PTAX/DUES/ PENALTY DUES,ASP WHEREIN THE NAME, OCCUPANT OF THE PROPERTY AND THE TENEMENT NO.ETC. ALLOTTED BY THE PROPERTY TAX DEPARTMENT OF THE MUNICIPALIT/CORPORATION, TAX ASSESSED AND PAID ETC. APPEARS (E.G.PG.NO.104 PAPER BOOK-4) (IV) ELECTRICITY BILLS (E.G.PG.NO.145 PAPER BOOK-4) (V) MONEY RECEIPTS ISSUED BY THE ASSESSEE WHEREIN T HE DETAILS OF PAYMENT RECEIVED AND THE UNIT FOR WHICH THE PAYMENT RECEIVED APPEAR (E.G.PG.NO.90 PAPER BOOK -4) (VI) COPY OF SALE DEED IN CASE OF TRANSFER OF THE U NIT SOLD WHEREVER MADE AVAILABLE (E.G.PG.NO.59 -80 PAPER BOOK 4) (VII) CONFIRMATION BY THE MEMBER FOR PAYMENT MADE T O THE ASSESSEE FOR BOOKING WITH DETAILS OF UNIT ALLOTTED (E.G.PG.NO.82 PAPER BOOK -4) 11 (VIII) XEROX COPY OF INDEX-II IN SUPPORT OF THE TRA NSFER OF FLAT/SHOP WHICH TOOK PLACE SUBSEQUENTLY IN FAVOUR OF OTHER PE RSON (E.G. PG.NO.121, PAPER BOOK -4) LD. AUTHORISED REPRESENTATIVE DREW OUR ATTENTION TO A CHART PREPARED BY HIM HAVING 24 COLUMNS, WHICH GIVE COMPLETE DETAILS IN RESPECT OF EACH MEMBER/DEPOSITOR WHICH ARE IN TOTAL 77 AND WHICH CO VER ENTIRE ADDITION MADE BY THE ASSESSING OFFICER. HE SUBMITTED THAT NE W INFORMATION IS COMPLETE AND DETAILS IN RESPECT OF EACH MEMBER/DEPO SITOR ARE AVAILABLE. THEREFORE, IT CANNOT BE SAID THAT DEPOSITS/LOANS AR E UNEXPLAINED. 9. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATI VE SUBMITTED THAT THESE DETAILS ARE PER FUNCTORY AND DOES NOT EXPLAIN ENTIRE ADDITION. 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL ON RECORD. IN OUR CONSIDERED VIEW THE ASSESSEE HAS MADE OUT A PRIMA FACIE CASE THAT MONEY ACTUALLY DOES NOT BELONG TO HIM BUT BELONG TO MEMBERS BUT THIS DOES NOT REALLY DISCHARGE THE ONUS CAST UP ON HIM TO EXPLAIN DEPOSITS/LOANS IN RESPECT OF WHICH ASSESSEE HAD ONL Y SUBMITTED PARTIAL DETAILS BEFORE THE ASSESSING OFFICER AND BEFORE THE CIT(A) AND OTHER DETAILS ARE NOW SUBMITTED BEFORE US ON WHICH A PRAY ER HAS BEEN MADE FOR ADMITTING ADDITIONAL EVIDENCES. WE IN THE INTEREST OF JUSTICE ADMIT THE DETAILS AND REQUIRE THE ASSESSING OFFICER TO VERIFY THEM. THE ADDITIONAL DETAILS FURNISHED BY THE ASSESSEE ARE CONFIRMATION FROM RESPECTIVE MEMBERS, COPY OF ACCOUNT, DETAILS OF PAN, EVIDENCE FROM SOCIETY SUCH AS ALLOTMENT LETTER, CERTIFICATE, NOC FOR LOAN, POSSES SION LETTER, SHARE CERTIFICATE, NAME OF THE MEMBER IN THE LIST OF GOVT . AUDIT REPORT, RESOLUTION FOR ADMISSION OF THE MEMBER, SHARE CONTRIBUTION, IN THE CASE OF TRANSFER, APPLICATION OF TRANSFER/UNIT, COPY OF THE BILL, PRO OF OF DEATH, COPY OF WILL, DATE ENTERED IN THE TRANSFER REGISTER OF THE SOCIET Y MUNICIPAL TAX BILL, ELECTRICITY BILL ETC. THE ASSESSEE WILL SUBMIT COPI ES OF THE PAPER BOOKS TO 12 THE ASSESSING OFFICER ALONG WITH THIS FULL CHART CO NTAINING 24 COLUMNS AND INFORMATION ABOUT ALL THE 77 MEMBERS/DEPOSITORS . THE ASSESSING OFFICER WILL EXAMINE THEM, IF NECESSARY CARRY OUT F URTHER ENQUIRY INCLUDING SUMMONING ORIGINAL PERSON DEPOSITING THE MONEY WITH THE SOCIETY, WHETHER SUCH DEPOSITS ARE DECLARED IN THE IT RETURNS, WHETHER TRANSFER OF MONEY TO THE SOCIETY/ASSESSEE IS THROUG H BANKING CHANNELS. IF IDENTITY OF THE DEPOSITOR IS ESTABLISHED AND HE OWN S THE MONEY PAID TO THE ASSESSEE THEN NO FURTHER QUESTIONING IS REQUIRED TO BE DONE AND SUCH UNSECURED LOAN/DEPOSIT SHOULD BE TREATED AS EXPLAIN ED. THIS VIEW, WE ARE TAKING ON THE BASIS OF VARIOUS JUDGMENTS OF THE COU RTS AS UNDER - 1. CIT VS. DIVINE LEASING AND FINANCE LTD. (2008) 299 ITR 268 (DEL); 2. A ONE HOUSING COMPANY LTD. VS. ITO (2008) 299 ITR (AT) 327 (DEL); 3. CIT VS. ELECTROPOLYCHEM LTD. (2007) 294 ITR 661 (MAD) 4. CIT VS. ILLAC INVESTMENTS (P) LTD. (2006) 287 I TR 135 (DEL) 5. UMA POLYMERS (P) LTD. VS. DCIT (2006) 284 ITR 0 01 (AT) JODHPUR 6. SHREE BARKHA SYNTHETICS LTD. VS. ACIT (2006) 28 3 ITR 377 (RAJ) 7. CIT VS. DOWN TOWN HOSPITAL (P) LTD. (2004) 267 ITR 439 (GAUHATI) 8. CIT VS. SOPHIA FINANCE LTD. (2004) 205 ITR 98 ( DEL) 11. THE ASSESSING OFFICER WILL ALSO CALCULATE PRO-R ATE DISALLOW ANCE OF INTEREST IN THOSE CASES WHERE DEPOSITS ARE NOT OWNE D UP BY ANY DEPOSITOR OR DEPOSITOR IS NOT FOUND IN EXISTENCE. HE WILL NOT DISALLOW CLAIM OF INTEREST IN RESPECT OF THOSE DEPOSITS/UNSECURED LOA N WHICH ARE TREATED AS EXPLAINED ON THE BASIS OF ADMISSION BY THE DEPOSITO RS AND EXISTENCE OF DEPOSITORS. 13 12. IN RESPECT OF SOURCE OF MONEY NOT FOUND EXPLAIN ED IN THE HANDS OF DEPOSITOR THEN DEPARTMENT IS FREE TO TAKE ACTION IN HIS HANDS. 13. THUS, WE SET ASIDE THE TWO APPEALS AND RESTORE THE MATTER TO THE FILE OF ASSESSING OFFICER FOR DECIDING AFRESH AS PER OUR DIRECTION ABOVE AND AS PER LAW. 14. IN THE RESULT, THE APPEAL OF ASSESSEE AND THAT OF REVENUE BOTH ARE ALLOWED FOR STATISTICAL PURPOSES. SD/- SD/- (T.K. SHARMA) (D.C.A GRAWAL) JUDICIAL MEMBER ACCOUNTAN T MEMBER AHMEDABAD, DATED : 23/ 12/2009 MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ORDER PRONOUNCED IN OPEN COURT ON 23/12/2009