DCIT, Dhule V. Shri Gopal B. Agarwal, Dhule

ITA 88/PUN/2006

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7428 (ITAT-PUNE)
• Duration Of Justice: 5 year(s) 2 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 1999-2000
• Appeal Filed On: 27-01-2006
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A S SINGH
• Keywords: Opportunity of being heard; Principle of natural justice; Onus to prove; Set aside
• Section: 133A; 147; 131; 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE SHRI I.C. SUDHIR (JM) AND SHRI D. KARUNAKARA RAO (AM) SR. NO. ITA NO. ASSTT.YEAR APPELLANT V/S. RESPONDENT 1. 88 /PN/20 06 TO 101/PN/2006 1999 - 2000 DY. CIT , CIR - 3 (1), DULE SHRI. GOPAL B. AGRAWAL, SURESH H. AGRAWAL & OTHERS, C/O. SHRI GOPAL BABABLAL AGRAWAL, 3082, J.B. ROAD, DHULE 2. 89/PN/2006 2000 - 01 - DO - - DO - 3. 90/PN/2006 1999 - 2000 - DO - SHRI. GOPAL B. AGRAWAL, SURESH H. AGRAWAL & OTHERS, C/O. SANTOSH SUBHASHCHA NDRA AGRAWAL, 3082, J.B. ROAD, DHULE 4. 91/PN/2006 2000 - 01 - DO - - DO - 5. 92/PN/2006 1999 - 2000 - DO - SHRI. GOPAL B. AGRAWAL, SURESH H. AGRAWAL & OTHERS, C/O. SMT. MEENA MANOHAR AGRAWAL, PLOT NO.6, AGRAWAL NAGAR, DHULE 6. 93/PN/2006 2000 - 01 - DO - - DO - 7 . 94/PN/2006 1999 - 00 - DO - SHRI. GOPAL B. AGRAWAL, SURESH H. AGRAWAL & OTHERS, C/O. SHRI BASANTILAL S. AGRAWAL, NEAR AGRAWAL NAGAR, DHULE 8. 95/PN/2006 2000 - 01 - DO - - DO - 9. 96/PN/2006 1999 - 2000 - DO - SHRI. GOPAL B. AGRAWAL, SURESH H. AGRAWAL & OTHERS, C/O . SHRI SURESH HIRALAL AGRAWAL, TAL.SHIRPUR, DIST. DHULE 10. 97/PN/2006 2000 - 01 - DO - - DO - 11. 98/PN/2006 1999 - 2000 - DO - SHRI. GOPAL B. AGRAWAL, SURESH H. AGRAWAL & OTHERS, C/O. SHRI SURESH B.BHATWAL, AGRAWAL NAGAR, DHULE 12. 99/PN/2006 2000 - 01 - DO - - DO - 13. 100/PN/2006 1999 - 2000 - DO - SHRI. GOPAL B. AGRAWAL, SURESH H. AGRAWAL & OTHERS, C/O. SHRI .GAURISHANKAR S. PASARI, OPP. PANZRA POL, DHULE 14. 101/PN/2006 2000 - 01 - DO - - DO - ITA . NO S.88 TO 101 /PN /2006 SHRI. GOPAL B. AGRAWAL, SURESH H. AGRAWAL & OTHERS E TC., A.Y. 2000 - 01, ETC., , PAGE OF 10 2 A PP ELLANT S BY : SHRI A.S. SINGH RESPONDENT S BY : NONE ORDER PER BE NCH WE FIND FROM THE ORDER SHEET RECORD THAT ON 6.1.2011, THE ASSESSEE HAD SOUGHT ADJOURNMENT ON THE BASIS OF MEDICAL GROUND AND THE SAME WAS ACCEPTED FIXING THE DATE OF HEARING AS 28 FEBRUARY 2011. ON 28 FEBRUARY, 2011, NONE APPEARED FOR THE ASSESSEE . THE MATTER WAS AGAIN ADJOURNED TO 1 ST MARCH 2011. EVEN ON THAT DATE, NOBODY APPEARED FOR THE ASSESSEE. THE MATTER WAS ACCORDINGLY ADJOURNED TO 03.3.2011. EVEN ON 03.3.2011, NONE APPEARED FOR THE ASSESSEE AND THE MATTER WAS PROCEEDED EX - PARTE ON THE B ASIS OF MATERIAL AVAILABLE ON RECORD. IN ALL THESE APPEALS PREFERRED BY THE REVENUE, THE FIRST APPELLATE ORDER HAS BEEN QUESTIONNED ON THE FOLLOWING GROUNDS : 1) ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN HOLDING THAT THERE EXISTED NO AOP IN THE CASE OF THE ASSESSEE. 2) ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN HOLDING THAT THE INCOME REPRESENTING FICTITIOUS FIXED DEPOSITS CANNOT BE TAKEN AS ASSESSEES INCOME. 3) ON THE FACTS AND UNDER THE CIRC UMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN NOT DECIDING THE APPEAL ON THE BASIS OF BASIC FACTS IN TOTALITY UNDER WHICH THE AOP CAME IN TO EXISTENCE AS DISCUSSED IN THE ASSESSMENT ORDER. 4) ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN ATTACHING MORE IMPORTANCE TO THE SECONDARY FACTS AND NOT FOCUSED ON THE CRUCIAL BASIC FACTS OF THE CASE. ITA . NO S.88 TO 101 /PN /2006 SHRI. GOPAL B. AGRAWAL, SURESH H. AGRAWAL & OTHERS E TC., A.Y. 2000 - 01, ETC., , PAGE OF 10 3 2. THE LD. D.R. WAS HEARD IN VIEW OF THE ORDERS OF THE AUTHORITIES BELOW AND MATERIAL AVAILABLE ON RECORD. THE LD. D .R. HAS BASICALLY P LACED RELIANCE ON THE ASSESSMENT ORDER. 3. THE RELEVANT FACTS ARE THAT DURING THE COURSE OF SURVEY U/S. 133A IN THE CASE OF AGRASEN SAHAKARI PATPEDHI MARYADIT, A CO - OPERATIVE SOCIETY, ON 18.6.2001, IT WAS FOUND THAT FDRS REGISTERED IN LEDGER NO. A - 1 & A - 2 (AS PER INVENTORY PREPARED DURING SURVEY) WERE NOT IDENTIFIABLE. TOTAL SUM OF THESE FDRS RECORDED IN THESE LEDGERS WERE WORKED OUT YEARWISE AND AMOUNTWISE AS UNDER : RS. 2,17,90,000/ - IN F.Y. 1998 - 1999 RS.3,41,16,000/ - IN F.Y. 1999 - 2000 RS.67,53,000/ - IN F.Y . 2000 - 2001 SINCE NO FORMAL PROCEDURE AS PER BANKING REGULATION ACT FOR ACCEPTING FDRS FROM DEPOSITORS WAS FOLLOWED, IN RECORDING THE FDRS IN THE STATED LEDGERS A - 1 AND A - 2, AND THERE WAS NO PROPER ADDRESSES AND SIGNATURE OF THE DEPOSITORS ETC. , THE IDENTIFICATION OF DEPOSITORS COULD NOT BE ASCERTAINED. FURTHER, ENQUIRIES WERE CARRIED OUT DURING THE SURVEY WITH OTHER RESPONSIBLE STAFF OF THE SOCIETY. STATEMENTS U/S. 131 OF THOSE STAFF INCLUDING ITS MANAGER SHRI DHARMRAJ SHANKARRAO BARI WERE R ECORDED. THEY SHOWED IGNORANCE ABOUT THE DEPOSITORS OF FDRS, SOME OF THE EMPLOYEES OF THE SOCIETY CONFIRMED THAT THESE FDRS WERE REGISTERED AT THE INSTANCE OF SHRI OMPRAKASH O. AGRAWAL, ONE OF THE DIRECTORS OF THE SOCIETY. THE ENTIRE BURDEN OF PROOF WA S THUS SHIFTED TO SHRI OMPRAKASH O. AGRAWAL TO MAKE THE IDENTIFICATION OF THE DEPOSITORS REGISTERED IN LEDGER NOS. A - 1 AND A - 2. SINCE SHRI OMPRA KA SH O. AGRAWAL COULD NOT IDENTIFY THE PERSONS WHO DEPOSITED THE ABOVE FDRS, INFERENCE WAS DRAWN BY THE SURVEY PARTY THAT THESE ITA . NO S.88 TO 101 /PN /2006 SHRI. GOPAL B. AGRAWAL, SURESH H. AGRAWAL & OTHERS E TC., A.Y. 2000 - 01, ETC., , PAGE OF 10 4 FDRS WERE BELONGING TO NOBODY BUT TO SHRI OMPRAKASH O. AGRAWAL. SUBSEQUENTLY, IT WAS OBSERVED THAT SHRI OMPRAKASH O. AGRAWAL IS NOT A PERSON OF THAT MEANS WHO COULD DEPOSITS FDRS OF CRORES OF RUPEES. THUS AN INFERENCE WAS DRAWN THAT TH E PERSONS WHO ARE CLOSELY ASSOCIATED AND WHO ARE CAPABLE OF HOLDING LARGE SUM OF MONEY ONLY CAN MAKE SUCH DEPOSITS. UNDER THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, THE A.O CAME TO THE CONCLUSION THAT SUCH PERSONS COULD ONLY BE DIRECTORS WHO WOULD V ENTURE TO DEPOSIT SUCH LARGE MONEY WITHOUT FOLLOWING THE BANK FORMALITIES AS THEY ONLY ARE EXERCISING CONTROL OVER THE DAY TO DAY ACTIVITY OF THE SOCIETY. IT WAS ALSO OBSERVED THAT LIST OF DEPOSITORS RECORDED IN THE ABOVE STATED LEDGERS GIVES A CLUE W ITH RESEMBLANCE OF CERTAIN DIRECTORS AND FAMILY MEMBERS. THUS, THERE IS REASONABLE SCOPE TO HOLD THAT DEPOSIT OF RS.6,26,59,000/ - RECORDED IN THE LEDGERS A - 1 AND A - 2 ARE BELONGING TO DIRECTORS OF THE SOCIETY DURING THE RELEVANT PERIOD. THE FOLLOWING WERE DIRECTORS D URING THE PERIOD : 1. SHRI GOPAL BABANLAL AGRAWAL 2. SHRI SHRINIWAS MUKHJI MODI 3. SAU. MINA MANOHAR AGRAWAL 4. SHRI VASANTLAL SHANKARLAL AGRAWAL 5. S HRI SURESH BANKATLAL BHATWAL 6. SHRI DR. MADHUSUDAN GAURILAL AGRAWAL 7. SHRI DIGAMBAR SHAMRAO MOHITE 8. SHRI SHAR AD SHEDURAM AGRAWAL, SHIRPUR 9. SHRI SURESH HIRALAL AGRAWAL, SHIRPUR 10. SHRI GOVINDLAL NATHMAL AGRAWAL 11. SHRI OMPRAKASH ONKARAMAL AGRAWAL 12. SHRI SUBHASH RUPCHAND AGRAWAL 13. SHRI DILIP CHAMPALAL AGRAWAL ITA . NO S.88 TO 101 /PN /2006 SHRI. GOPAL B. AGRAWAL, SURESH H. AGRAWAL & OTHERS E TC., A.Y. 2000 - 01, ETC., , PAGE OF 10 5 14. SHRI SANTOSH SUBHASHCHANDRA AGRAWAL 15. SHRI VIJAY GULABCHAND AGRAWAL 16. S HRI GHANSHYAM MOHANLAL AGRAWAL, DONDAICHA 17. SHRI GAURISHANKAR SITARAM PASARI 18. SAU. SHEELA PRAKASH AGRAWAL 19. SHRI NARENDRAKUMAR MANDANLAL AGRAWAL, NAVAPUR ON THE BASIS OF ABOVE OBSERVATION, THE A.O RECORDED REASONS TO BELIEVE THAT AMOUNT OF RS.2,17,90,000/ - , RS .2,41,60,000/ - AND RS.67,53,000/ - IN THE FORM OF UNEXPLAINED DEPOSIT OF THE AOP OF ABOVE 19 PERSONS MADE WITH THE SOCIETY FOR THE A.YS. 1999 - 2000, 2000 - 01 AND 2001 - 02 RESPECTIVELY HAS ESCAPED ASSESSMENT. HE ACCORDINGLY ISSUED NOTICE U/S. 148 TO THE ASSESS EE (AOP) ON 27.2.2004 AND THE ASSESSMENT WAS COMPLETED FOR THE A.YS. 1999 - 2000 AND 2000 - 01. 4. BEFORE THE LD CIT(A), THE ASSESSEE QUESTIONED THE ASSESSMENT ORDER CONTENDING THAT THERE WAS NO AOP EXISTING IN THE CASE OF ASSESSEE AND SECONDLY, THE INCOME REPRESENTING FICTITIOUS DEPOSITS RECORDED IN A - 1 AND A - 2 LEDGERS CANNOT BE ASSESSED IN THE HANDS OF THE ASSESSEE. THE LD CIT(A) DISCUSSING THE ISSUE IN DETAIL HAS COME TO THE CONCLUSION THAT THE AOP WAS NOT IN EXISTENCE AND HAS ALSO DELETED THE ADDITION S MADE AGAINST THE ASSESSEE. 5. THE CONTENTION OF THE LD. D.R. REMAINED THAT IN THE ASSESSMENT ORDER ITSELF, IT HAS BEEN CLARIFIED AS TO HOW ALL THE DIRECTORS OF AGRASEN SAHAKARI PATHSANSTHA MARYADIT , S YSTEMATICALLY PLANNED IN THE BEGINNING ITSELF, THE INVESTMENT OF UNACCOUNTED AMOUNTS PERTAINING TO THEM IN THE FORM OF FDS. THESE FDS WERE SPECIFICALLY RECORDED IN SEPARATE LEDGERS A - 1 AND A - 2 DISTINCTLY SEPARABLE FROM OTHER FD ITA . NO S.88 TO 101 /PN /2006 SHRI. GOPAL B. AGRAWAL, SURESH H. AGRAWAL & OTHERS E TC., A.Y. 2000 - 01, ETC., , PAGE OF 10 6 REGISTERS MAINTAINED BY THE SOCIETY. IN THE ASSESSMENT ORDER, IT HAS BEEN CLARIFIED THAT THE DIRECTORS HAD TAKEN UTMOST CARE BY MAKING IT DIFFICULT TO TRACE DOWN THE IDENTITY OF THE INVESTORS BY NOT PROVIDING ADDRESSES AND SPECIMEN SIGNATURES OF THE F.D. HOLDERS. NATURALLY, THE IDENTIFICATION OF F.D HOLDERS WAS ONLY KNOWN TO T HE DIRECTORS. HENCE, THERER WAS GROUP OF PERSONS WHO JOINTLY ENGAGED THEMSELVES DERIVING INCOME BY WAY OF INTEREST FROM THE FICTITIOUS FIXED DEPOSITS. THE LD. D.R. SUBMITTED FURTHER THAT AT THE BEGINNING OF THEIR TENURES AS DIRECTORS, THEY WOULD NOT HAV E PLANNED SO. HOWEVER, DURING THE COURSE OF TIME, THEY WOUL D HAVE REALIZED THAT THEY COULD EXPLOIT THEIR POSITION AND THEY WOULD HAVE DECIDED TO HATCH CONSPIRACY OF MAINTAINING TWO SEPARATE REGISTERS AND RECORDED THEREIN FICTITIOUS DEPOSITS PERTAI NING TO THEM. THUS, IN THE ASSESSMENT ORDER, THE CASE HAS BEEN MADE OUT PERFECTLY INDICATING AS TO HOW THE STATUS OF AOP IS FAIRLY APPLICABLE IN THE ASSESSEES CASE AS PER RULING OF THE HONBLE SUPREME COURT IN THE CASE OF INDRA BALKRUSHNA (1960) 93 ITR 5 51 (SC). FURTHER, AS NOT A SINGLE DIRECTOR WAS DISAGREED TO THE IDEA OF MAINTAINING TO SEPARATE REGISTERS, IT CAN BE EASILY SAID THAT ALL THE DIRECTORS WERE ACTING IN UNISON. THUS, IT CAN BE INFERRED THAT ALL THE DIRECTORS WERE BENEFITTED EITHER DIRECTL Y OR INDIRECTLY OUT OF THE FICTITIOUS DEPOSITS RECORDED IN A - 1 AND A - 2 LEDGERS. THUS, THE AOP WAS VERY MUCH IN EXISTENCE IN THE PRESENT CASE AND FICTITIOUS DEPOSITS WERE DIRECTLY RELATED TO THE AOP, THE AO WAS JUSTIFIED IN TAXING THE INCOME REPRESENTING F ICTITIOUS DEPOSITS RECORDED IN A - 1 AND A - 2 REGISTERS. IGNORING THESE MATERIAL FACTS, THE LD CIT(A) HAS FOCUSSED ON THE SECONDARY ISSUES, AND DECIDED THE CASE AGAINST THE REVENUE IN RESPECT OF STATUS AND INCOME OF THE ASSESSEE. ITA . NO S.88 TO 101 /PN /2006 SHRI. GOPAL B. AGRAWAL, SURESH H. AGRAWAL & OTHERS E TC., A.Y. 2000 - 01, ETC., , PAGE OF 10 7 6. HAVING GONE THROUGH THE ORDERRS OF THE AUTHORITIES BELOW, WE FIND THAT THE LD CIT(A) HAS PASSED A VERY COMPREHENSIVE ORDER DISCUSSING THE SUBMISSIONS OF THE RESPECTIVE PARTIES AS WELL AS REMAND REPORT OF THE A.O ON THE SUBMISSION OF THE ASSESSEE. THE LD CIT(A) HAS ALSO NOTED THE CONTENTION OF THE ASSESSEE THAT WHILE USING STATEMENTS OF SOME OTHER PERSONS ADVERSELY AGAINST THE ASSESSEE, ASSESSEE WAS NOT A FFOR DED WITH OPPORTUNITY OF CROSS EXAMINING TH OSE WITNESS ES DESPITE BEING REQUESTED BY ASSESSEE. THE A.O ALSO REFUSED OPPORT UNITY OF EXAMINING SHRI D.S. BARI AND SHRI OMPRAKASH O. AGRAWAL TO THE ASSESSEE. THE LD CIT(A) HAS FURTHER NOTED THAT THE A.O. DID NOT EXERCISE HIS POWERS FOR ENFORCING THE ATTENDANCE OF WITNESS. WE FULLY AGREE WITH THESE VIEWS O F LD CIT(A) THAT WITHOUT AFFORDING OPPORTUNITY OF CROSS - EXAMINING TO THE ASSESSEE TO THOSE PERSONS, STATEMENT OF THOSE PERSONS CANNOT BE USED AGAINST THE ASSESSEE BY THE A.O AS IT IS APPARENT VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. AS WE HAVE DISCUSSED HEREINABOVE, IN THE STA TEMENT OF FACTS THAT A.O RECORDED FINDING THAT SHRI OMPRAKASH O. AGRAWAL HAS NOT MADE THESE FICTITIOUS DEPOSITS BASED ON HIS PRESUMPTIONS THAT HE WAS A MAN OF NO MEANS AND HE REMAINED EMPLOYEE OF THE CO - OPERATIVE BANK . T HE VIEW OF LD CIT(A) IN THIS REGARD REMAINED THAT EVEN THE CONFESSION OF SHRI D.S. BARI SHOWS THAT DEEP INVOLVEMENT OF SHRI OMPRAKASH O. AGRAWAL WAS THERE . THUS, HIS ASSERTIONS THAT HE DID NOT KNOW ANYTHING DOES NOT CARRY WEIGHT. WE ARE ALSO OF THE VIEW THAT THE FACTS AND CIRCUMSTANCES OF THE CASE CLEARLY CONFIRMS THAT ONUS LIES ON SHRI OMPRASH O. AGRAWAL, WHO HAPPENDED TO BE MANAGING DIRECTOR OF THE SOCIETY. A.O ALSO MENTIONED IN HIS ASSESSMENT ORDER THAT DURING THE PROCEEDINGS BEFORE HIM, IT WAS POINTED OUT THAT IT IS THE MANAGING D IRECTOR AND SALARIED STAFF WHO ARE ENGAGED IN DAY - TO - DAY ADMINISTRATIVE WORK S INCLUDING ACCEPTANCE OF DEPOSITS. THE FACTS OF ITA . NO S.88 TO 101 /PN /2006 SHRI. GOPAL B. AGRAWAL, SURESH H. AGRAWAL & OTHERS E TC., A.Y. 2000 - 01, ETC., , PAGE OF 10 8 THE CASE SUGGEST THAT THE AMOUNT IN QUESTION I.E. DEPOSITS IN FDRS RECORDED IN LEDGERS A - 1 AND A - 2 HAS BEEN ALSO ADDED TO THE TO TAL INCOME OF AGRASEN SAHAKARI PATSANSTHA MARYADIT, DHULE VIDE ORDER DATED 31.3.2004 AND SUBSEQUENTLY THE SAME A.O FORMED OPINION THAT THERE EXISTED AOP CONSISTING OF ABOVE MENTIONED 19 PERSONS. HE INITIATED PROCEEDINGS U/S. 147 AGAINST SUCH AOP AND MADE ASSESSMENT BY MAKING ADDITION OF PEAK OF SUCH FICTITIOUS DEPOSITS FOR THE A.YS. 1999 - 2000 TO 2000 - 01 IN THE TOTAL INCOME OF THE AOP ON PROTECTIVE BASIS. THIS ASSESSMENT ORDER WAS FRAMED ON 24.3.2005. THE LD CIT(A) ON THE BASIS OF THE ASSERTION OF THE A.O . IN THE CASE OF THE SOCIETY BEFORE THE TRIBUNAL THAT FICTITIOUS DEPOSITS WAS CORRECTLY ADDED U/S. 68 OF THE INCOME TAX ACT IN THE HANDS OF THE SOCIETY, HAS COME TO THE CONCLUSION THAT FINDING OF THE A.O IN THE CASE OF THE SOCIETY CONTRADICTS HIS ACTION I N THE CASE OF AOP. IN THIS REGARD, THE LD CIT(A) HAS REPRODUCED THE SUBMISSIONS OF ASSESSEE IN PARA NO. 10.27 OF THE FIRST APPELLATE ORDER AND EVIDENCE MADE AVAILABLE TO THE A.O. ABOUT THE PERSONS, WHO MADE FICTITIOUS DEPOSITS WITH THE SOCIETY . WE ARE NO T REPRODUCING THE SAME FOR THE SAKE OF BRIEVITY. ACCEPTING THE SUBMISSIONS, THE LD CIT(A) CAME TO THE CONCLUSION IN SUCCEEDING PARAGRAPH NO. 10. 28 OF THE FIRST APPELLATE ORDER THAT THE INFORMATION AND DOCUMENTS AVAILABLE WITH THE A.O POINTS OUT CLEAR NEXUS BETWEEN SPECIFIC F.D AND CONCERNED BENEFICIARIES. HE HAS ALSO CONCLUDED THAT SHRI OMPRAKASH O. AGRAWAL WAS CLOSELY AND INTIMATEDLY INVOLVED WITH THESE TRANSACTIONS AND HE NOT ONLY ISSUED DEPOSITS CERTIFICATES ALONG WITH MANAGER SHRI D.S. BARI IN R ESPECT OF SUCH FDS BUT ALSO MADE SUCH FICTITIOUS INVESTMENTS IN THE CASE OF SOCIETY EITHER ON BEHALF OF THE ABOVE REFERRED BENEFICIARIES OR OTHERWISE. IN PARA NO. 10.29 OF THE FIRST APPELLATE ORDER, THE LD CIT(A) WITHOUT GIVING OPPORTUNITY TO THE A.O TO FURNISH HIS REPORT ON ITA . NO S.88 TO 101 /PN /2006 SHRI. GOPAL B. AGRAWAL, SURESH H. AGRAWAL & OTHERS E TC., A.Y. 2000 - 01, ETC., , PAGE OF 10 9 THE SUBMISSIONS OF THE ASSESSEE REPRODUCED IN PARA NO. 10.27 OF THE FIRST APPELLATE ORDER TO VERIFY T HE DOCUMENTARY EVIDENCES STATED TO BE MADE AVAILABLE TO THE A.O IN THE CASE OF SOCIETY SHOWING SPECIFIC LINK WITH FICTITIOUS DEPOSI TS TO INDIVIDUAL DIRECTOR OR GROUP OF ASSESSEE, OR ASSOCIATE PERSONS RELATED TO HIM HAS COME TO THE CONCLUSION THAT THE FICTITIOUS DEPOSIT DOES NOT BELONG TO THE ASSESSEE AOP. IT IS, IN OUR VIEW AGAINST THE PRINCIPLE OF NATURAL JUSTICE. WE THUS WHILE SETTING ASIDE FIRST APPELLATE ORDER IN THIS REGARD, REMAND THE MATTER TO THE FILE OF THE LD CIT(A) TO PASS A FRESH ORDER ON THE ISSUE AFTER OBTAINING COMMENT OF THE A.O ON THE REPLY OF THE ASSESSEE REPRODUCED IN PARA NO.10.27 OF THE FIRST APPELLATE ORDE R AND KEEPING IN MIND THE FINDINGS OF THE APPELLATE AUTHORITY ON THE ISSUE IN THE CASE OF THE SOCIETY, IF ANY . THE GROUND NO S. 1 & 3 ARE THUS SET ASIDE. 7. SINCE THE ISSUE RAISED IN GROUND NO. 2 AS TO WHETHER INCOME REPRESENTING FICTITIOUS FIXED DEPOSIT S CAN BE ASSESSED IN THE HANDS OF THE ASSESSEE, IS CONSEQUENTIAL IN NATURE TO THE FINDING ON THE ISSUE RAISED IN GROUND NOS. 1 & 3 HEREINABOVE , WE DIRECT THE LD CIT(A) TO DECIDE THE ISSUE RAISED IN GROUND NO. 2 AFRESH IN VIEW OF HIS FINDING ON GROUND NOS. 1 & 3. THE WHOLE PURPOSE OF THIS EXERCISE BY US IS TO ASCERTAIN THAT INCOME REPRESENTING FICTITIOUS FIXED DEPOSITS CANNOT BE REMAINED UN - ASSESSED IN PROPER HANDS. IT IS NEEDLESS TO MENTION OVER HERE THAT WHILE DECIDING THESE ISSUES RAISED, IN THE GROUNDS AFRESH, THE LD CIT(A) WILL GIVE REASONABLE OPPORTUNITY OF BEING HEARD TO THE PARTIES. 8. IN THE RESULT, APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 31 ST MARCH 2011. ITA . NO S.88 TO 101 /PN /2006 SHRI. GOPAL B. AGRAWAL, SURESH H. AGRAWAL & OTHERS E TC., A.Y. 2000 - 01, ETC., , PAGE OF 10 10 SD/ - SD / - ( D. KARUNAKARA RAO ) ACCOUNTANT MEMBER ( I.C. SUDHIR ) JUDICIAL MEMBER PUNE , DATED THE 31ST MARCH , 20 1 1 US COPY OF THE ORDER IS FORWARDED TO : 1. THE A PP ELLA NT 2. THE RESPONDENT 3. THE CIT I , NASHIK 4. THE CIT(A) - I, NA SHIK 5. THE D.R. B BENCH, PUNE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE