Avi Constructions, Pune V. Deputy Commissioner of Income-tax,

ITA 947/PUN/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 0920 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-11-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 08-05-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B C MALAKAR
• Assessee Lawyers: K SRINIVASAN
• Keywords: Reopening of assessment; Additional evidence; Difference of opinion; Reason to believe; Change of opinion
• Section: 143(3); 68; 148

Judgement Text

] ]] ] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE , !', $ % BEFORE MS. SUSHMA CHOWLA, JM AND SHRI PRADIP KUMAR KEDIA, AM ITA NO.947/PN/2014 ASSESSMENT YEAR : 2003-04 AVI CONSTRUCTIONS, KUMAR BUSINESS CENTER, 10 TH FLOOR, OPP. CENTRAL MALL, BUND GARDEN ROAD, PUNE 411 001. PAN : AACFA1642G . APPELLANT VS. THE DY. COMMISSIONER OF INCOME TAX, CIRCLE- 4, PUNE. . RESPONDENT / APPELLANT BY : SHRI K. SRINIVASAN / RESPONDENT BY : SHRI B. C. MALAKAR / DATE OF HEARING : 12.10.2015 / DATE OF PRONOUNCEMENT: 04.11.2015 & / ORDER PER PRADIP KUMAR KEDIA, AM : THE PRESENT APPEAL PREFERRED BY THE ASSESSEE IS AGA INST THE ORDER OF CIT(A)-II, PUNE DATED 31.01.2014 RELATING TO ASSESS MENT YEAR 2003-04 PASSED UNDER SECTION 143(3) R.W.S. 147 OF THE INCOME-TAX A CT, 1961 (IN SHORT THE ACT). 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE REPRODUCED AS UNDER :- 1. THE CIT(A) HAS ERRED IN HOLDING THE REOPENING O F ASSESSMENT IS JUSTIFIED IGNORING THE ITAT'S DIRECTION TO DISPOSE OFF THE GR OUND RAISED IN ACCORDANCE WITH LAW BY NOT CONSIDERING THE FACTS ON RECORD AND THE SETTLED LEGAL POSITION ON THE SUBJECT. 2. THE REOPENING OF ASSESSMENT U/S.148 AND THE ENTI RE REASSESSMENT MAY BE HELD AS BAD IN LAW AND THE ASSESSMENT CANCELLED. 2 ITA NO.947/PN/2014 3. WITHOUT PREJUDICE TO ABOVE ON THE FACTS AND CIRC UMSTANCES OF THE CASE AND IN LAW THE ORIGINAL GROUNDS RAISED BEFORE ITAT. A) THE CIT(A) ERRED IN CONFIRMING THE ADDITION OF R S.47,21,887/- AND THE SAME MAY BE DELETED. B) AO AND CIT (A) HAVE ERRED IN LAW IN HOLDING PROV ISION OF SECTION 68 ARE ATTRACTED AND CONSEQUENTLY SHIFTING THE ONUS ON THE ASSESSEE MAY BE CONSIDERED AND SUITABLE RELIEF GRANTED AND J USTICE DONE TO THE ASSESSEE. 4. THE ORDER OF THE LOWER AUTHORITIES MAY BE CANCEL LED OR APPROPRIATE SUITABLE RELIEF GRANTED TO THE APPELLANT. 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, DELETE , SUBSTITUTE ANY OR ALL GROUNDS OF APPEAL AND FURNISH ADDITIONAL EVIDENCES AT THE T IME OF HEARING. 3. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSE SSEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF REAL ESTATE AS PROMOTERS AND DEVELOPERS. THE ASSESSEE FILED ITS RETURN OF INCOME FOR ASSESSMENT YEAR 2003-04 DECLARING TOTAL INCOME OF RS.1,26,69,300/- ALONG WITH TAX AUDIT REP ORT. THE ASSESSMENT WAS ORIGINALLY COMPLETED ON 31.03.2006 UNDER SECTION 14 3(3) OF THE ACT AND THE INCOME WAS ASSESSED AT RS.1,36,55,245/-. 3.1 THE ASSESSMENT WAS REOPENED UNDER SECTION 147 O F THE ACT BY ISSUING A NOTICE UNDER SECTION 148 OF THE ACT ON 29.03.2010 W HICH WAS PROPERLY SERVED ON THE ASSESSEE ON THE SAME DATE. THEREAFTER, A NO TICE UNDER SECTION 143(2) OF THE ACT DATED 23.09.2010 WAS ISSUED AND SERVED ON T HE ASSESSEE. 3.2 THE REASONS RECORDED UNDER SECTION 148 OF THE A CT FOR REOPENING THE ASSESSEE ARE ENUMERATED BELOW ;- THE ASSESSEE HAS FILED ITS RETURN OF INCOME FOR A. Y. 2003-04 DECLARING TOTAL INCOME OF RS.1,26,69,300/- ON 27.11.2003. ASSESSMENT U/S 143(3) WAS COMPLETED ON 31.03.2006 ASSESSING TOTAL INCOME AT RS.1,36,55,245 /-. 2. IT IS NOTICE FROM ANNEXURE 4 OF TAX AUDIT REPORT (SR.NO.18) THAT THE ASSESSEE HAD TAKEN LOAN FROM SHRI L.K. JAIN (HUF), AMOUNTING TO RS.39,50,793/- DURING THE YEAR AND OUTSTANDING LOAN AS ON 31.03.2003 HAS BEEN SHOWN RS.47,12,887/-. HOWEVER, THE SAME WAS NOT SHOWN IN THE ACCOUNTS OF SHRI L.K. JAIN (HUF) AS LOAN GIVEN TO M/S AVI CONSTRUCTIONS (LOANS & ADVANCES TO FIRM/COMPANIES). THUS, THIS AMOUNT IS REQUIRED TO BE TREATED AS UNEXPLAINED CAS H CREDIT U/S 68 OF RS.47,21,887/- WHICH WAS NOT REFLECTED IN THE ACCOUNTS OF SHRI L.K . JAIN (HUF). 3. ACCORDINGLY TO PROVISIONS OF SECTION 68, WHERE A NY SUM IF FOUND IN THE BOOKS OF AN ASSESSEE MAINTAINED FOR ANY PREVIOUS YEAR AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE THEREOF OR THE EXPLANATION OFFERED BY HIM IS 3 ITA NO.947/PN/2014 NOT SATISFACTORY, THE SUM SO CREDITED IS REQUIRED T O BE CHARGED TO INCOME TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR. SINC E THIS HAS RESULTED IN UNDER ASSESSMENT OF INCOME AND SHORT LEVY OF TAX, THE SAM E NEED TO BE VERIFIED. 4. I HAVE THEREFORE, REASON TO BELIEVE THAT INCOME OF RS.47,21,887/- HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147(A) OF THE IT ACT, 1961. THEREFORE, NOTICE U/S 148 OF THE ACT IS REQUIRED TO BE ISSUED AND FRESH ASSESSMENT IS TO BE MADE U/S 143(3) R.W.S. 147 OF THE I.T. ACT, 1961. 3.3 THE ASSESSING OFFICER AFTER COMPLETION OF THE A SSESSMENT OBSERVED THAT TAX AUDIT REPORT FILED BY THE ASSESSEE, INTER-ALIA , REFLECTED LOAN TAKEN FROM SHRI L.K. JAIN (HUF) AMOUNTING TO RS.39,50,793/- DURING THE YEAR AND OUTSTANDING LOAN AS ON 31.03.2003 HAS BEEN SHOWN AT RS.47,21,88 7/-. IT WAS OBSERVED BY THE ASSESSING OFFICER THAT WHILE THE LOAN TAKEN FRO M SHRI L.K. JAIN (HUF) IS REFLECTED AS PER ANNEXURE 4 OF THE TAX AUDIT REPORT , THE SAME IS NOT REFLECTED IN THE BALANCE SHEET OF THE ASSESSEE AS LIABILITY AND ALSO THE SAME IS NOT REFLECTED IN THE ACCOUNTS OF LENDER, SHRI L.K. JAIN (HUF) AS LOAN GIVEN TO THE ASSESSEE. ACCORDINGLY, HE INVOKED SECTION 68 OF THE ACT AND T REATED THE AFORESAID BALANCE OF RS.47,21,887/- AS UNEXPLAINED CASH CREDI T IN THE HANDS OF THE ASSESSEE. 3.4 AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER , THE ASSESSEE PREFERRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 4. BEFORE THE CIT(A), THE ASSESSEE REITERATED ITS S UBMISSIONS THAT THE IMPUGNED ANNEXURE 4 TO THE TAX AUDIT REPORT IS AN I NADVERTENT ERROR AND LOAN HAS IN-FACT BEEN GIVEN BY THE ASSESSEE TO SHRI L.K. JAIN (HUF) AND NOT RECEIVED AS ALLEGED. THE AMOUNT WHICH IS TO BE RECOVERED BY THE ASSESSEE FROM SHRI L.K. JAIN (HUF) STANDS AT RS.1,12,88,068/- AS APPEA RING IN SCHEDULE D OF THE BALANCE SHEET AS ON 31.03.2003. IT WAS SUBMITTED B EFORE THE CIT(A) THAT THE ACCOUNTS OF BOTH THE PARTIES I.E. ASSESSEE AND SHRI L.K. JAIN (HUF) ARE RECONCILED, TALLIED AND APPEARED IN THEIR RESPECTIV E BALANCE SHEET AS ON 31.03.2003. THE IMPUGNED AMOUNT OF RS.47,21,887/- DOES NOT APPEAR IN THE BOOKS OF ANY OF THE PARTIES, SINCE THE ANNEXURE 4 T O THE TAX AUDIT REPORT IS 4 ITA NO.947/PN/2014 ANNEXED INADVERTENTLY AND BY MISTAKE. NO SUCH AMOU NT HAS BEEN TAKEN AS A LOAN FROM THE PURPORTED LENDER, NAMELY, SHRI L.K. J AIN (HUF). 5. HOWEVER, THE CIT(A) ALSO DID NOT PAY ANY HEED TO THE SUBMISSIONS OF THE ASSESSEE AND CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER VIDE ORDER DATED 30.01.2012. 6. THE AFORESAID ORDER OF THE CIT(A) WAS CARRIED BE FORE THE ITAT. BEFORE THE ITAT, THE LD. AR OF THE ASSESSEE ALSO CHALLENGE D THE JURISDICTION OF THE ASSESSING OFFICER IN INVOKING SECTION 147/148 OF TH E ACT AND RAISED GROUNDS OF APPEAL TO THAT EFFECT. THE ITAT OBSERVED THAT T HE ISSUE OF LACK OF JURISDICTION WITH THE ASSESSING OFFICER WAS NOT BEF ORE THE CIT(A). THE CIT(A) HAS DECIDED THE MATTER ONLY ON MERITS. IN T HIS VIEW OF THE MATTER, THE ITAT RESTORED THE ISSUE BACK TO THE FILE OF THE CIT (A) FOR ADJUDICATION OF JURISDICTION ISSUE. SIMULTANEOUSLY, THE ISSUE ARIS ING ON MERITS TOWARDS THE IMPUGNED ADDITION WAS KEPT OPEN. 7. PURSUANT TO THE DIRECTIONS OF THE ITAT, THE CIT( A) CONSIDERED THE CORRECTNESS OF JURISDICTION VESTED WITH THE ASSESSI NG OFFICER UNDER SECTION 147/148 OF THE ACT VIDE ITS ORDER DATED 31.01.2014 AND FINALLY AFTER CONSIDERATION OF SEVERAL JUDICIAL PRECEDENTS CAME T O THE CONCLUSION THAT THE OBJECTION OF THE ASSESSEE AGAINST REOPENING OF THE ASSESSMENT ARE DEVOID OF MERIT AND THE ASSESSING OFFICER HAS RIGHTLY EXERCIS ED POWER UNDER SECTION 147 OF THE ACT IN ACCORDANCE WITH LAW. ON MERITS, THE CIT(A) OBSERVED THE FINDINGS OF THE EARLIER APPELLATE ORDER WILL HOLD G OOD AND HE IS IN AGREEMENT WITH THE EARLIER VIEW ON THE ISSUE. 8. AGGRIEVED WITH THE ACTION OF THE CIT(A), THE ASS ESSEE IS IN FURTHER APPEAL BEFORE US. 5 ITA NO.947/PN/2014 9. THE GRIEVANCE OF THE ASSESSEE IS TWO-FOLD. THE ASSESSEE HAS QUESTIONED THE EXERCISE OF POWER UNDER SECTION 147 OF THE ACT BY THE ASSESSING OFFICER IN THE FACTS OF THE CASE. SECONDLY, THE ASSESSEE HAS ALSO ASSAILED THE ACTION OF THE AUTHORITIES BELOW ON MERITS AND PLEADED THAT THE AD DITIONS MADE ARE TOTALLY DEVOID OF MERITS AND ARE UNSUSTAINABLE IN LAW. 10. THE LD. AUTHORIZED REPRESENTATIVE ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE RELEVANT ASSESSMENT YEAR 2003-04 WAS SUBJE CT-MATTER OF SECTION 143(3) OF THE ACT EARLIER, WHEREIN THE BALANCE SHEET, THE TAX AUDIT REPORT AND OTHER RELEVANT DETAILS CALLED FOR WERE DULY FILED IN THE COURSE OF ASSESSMENT PROCEEDINGS. AFTER THE ASSESSMENT WAS COMPLETED, T HE AUDIT QUERY WAS RAISED BY THE REVENUE BY PLACING RELIANCE ON ANNEXURE 4 AN NEXED TO THE TAX AUDIT REPORT AND PURSUANT THERETO, THE ASSESSING OFFICER TOOK OBJECTION TO THE CORRECTNESS OF THE ASSESSMENT ORDER. THE CASE OF T HE ASSESSEE IS THUS PROTECTED BY THE EMBARGO PLACED IN FIRST PROVISO TO SECTION 1 47 OF THE ACT, AS NOTICE FOR REOPENING HAS BEEN ISSUED ON 29.03.2010 I.E. AFTER FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. THE ACTION OF THE AS SESSING OFFICER IN INVOKING SECTION 147 OF THE ACT IS TIME BARRED AND NOT SUSTA INABLE IN LAW AS THE ALL MATERIAL FACTS WERE FULLY AND TRULY DISCLOSED BY TH E ASSESSEE IN THE ORIGINAL ASSESSMENT PROCEEDINGS. 11. THE LD. DEPARTMENTAL REPRESENTATIVE ON BEHALF O F THE REVENUE, ON THE OTHER HAND, SUBMITTED THAT THE NOTICE FOR REOPENING HAS BEEN ISSUED WITHIN THE TIME LIMIT AS PRESCRIBED UNDER SECTION 149 OF THE A CT. THE ASSESSEE HAS FAILED TO DISCLOSE THE MATERIAL FACTS FULLY AND TRULY AT T HE TIME OF THE ORIGINAL ASSESSMENT AND THEREFORE THE CIT(A) HAS RIGHTLY SUS TAINED THE ACTION OF THE ASSESSING OFFICER. 12. ON MERITS, THE LD. AUTHORIZED REPRESENTATIVE ON BEHALF OF THE ASSESSEE ADVERTED OUR ATTENTION TO THE RELEVANT ANNEXURE 4 A NNEXED TO THE TAX AUDIT REPORT AS APPEARING AT PAGE NO.12 OF THE PAPER BOOK , WHICH IS THE GENESIS OF 6 ITA NO.947/PN/2014 PRESENT CONTROVERSY. GIVING REFERENCE TO THE IMPUG NED ANNEXURE 4 ANNEXED TO THE TAX AUDIT REPORT, HE MADE TWO-FOLD SUBMISSIONS. FIRSTLY, THE AFORESAID ANNEXURE 4 IS WITHOUT NAME OF THE ASSESSEE ON THE T OP OR ELSEWHERE. HE CONTENDED THAT THE ANNEXURE 4 HAS BEEN ANNEXED INAD VERTENTLY AND DOES NOT PERTAIN TO THE ASSESSEE. IT IS ANNEXED AN INADVERT ENT ERROR. THE PRINTOUT TAKEN IN CASE OF SOME OTHER ASSESSEES MIGHT HAVE BEEN ANN EXED WITH THE TAX AUDIT REPORT INADVERTENTLY IN THE OFFICE OF THE TAX AUDIT OR. SECONDLY, HE SUBMITTED THAT THERE IS NO REFERENCE TO ANNEXURE 4 IN THE TAX AUDIT REPORT ITSELF WHICH ENDS AT ANNEXURE 3. THEREFORE, ANNEXURE 4 IS CLEARLY SU PERFLUOUS AND DOES NOT FORM PART OF THE REPORT. HE NEXT CONTENDED THAT TH E AFORESAID AMOUNT OF RS.47.21 LACS HAS NEVER BEEN RECEIVED FROM SHRI L.K . JAIN (HUF) AS CONFIRMED BY THE PURPORTED LENDER FOR WHICH CONFIRMATORY LETT ERS WERE ALSO FILED WITH THE ASSESSING OFFICER IN THE COURSE OF RE-ASSESSMENT PR OCEEDINGS. ON THE CONTRARY, THE MONEY HAS BEEN LENT TO SHRI L.K. JAIN (HUF) AND NOT RECEIVED AS ALLEGED. NO SUCH MONEY IS FLOWING OR COMING IN THE HANDS OF THE ASSESSEE AS CAN BE SEEN FROM THE BANK STATEMENT. AS PER THE SAID IMPU GNED ANNEXURE ITSELF, THE LOAN WAS NOT ACCEPTED OR REPAID IN CASH. ACCORDING LY, HE PLEADED THAT THERE IS NO CASE OF THE REVENUE TO TAX THE NON-EXISTENT INCO ME IN THE HANDS OF THE ASSESSEE. 13. THE LD. DEPARTMENTAL REPRESENTATIVE ON BEHALF O F THE REVENUE, ON THE OTHER HAND, RELIED UPON THE ORDERS OF THE AUTHORITI ES BELOW AND SUBMITTED THAT THE ONUS PLACED UPON THE ASSESSEE WAS NOT DISCHARGE D AND THEREFORE BASED ON THE TAX AUDIT REPORT FILED BY THE ASSESSEE ITSELF, THE ASSESSING OFFICER WAS JUSTIFIED IN MAKING THE IMPUGNED ADDITION. 14. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS, ORDERS OF THE AUTHORITIES BELOW AND PERUSED THE CASE LAWS CITED. SINCE THE ISSUE OF JURISDICTION UNDER SECTION 147 OF THE ACT HAS BEEN RAISED BY THE ASSESSEE WHICH GOES TO THE ROOT OF THE MATTER, WE SHALL DEAL WITH THIS ISSUE FIRST. WE FIND AS A MATTER OF FACT THAT THE IMPUGNED ANNEXURE 4 SHOWI NG LOAN RECEIVED FROM 7 ITA NO.947/PN/2014 SHRI L.K. JAIN (HUF) TO THE TUNE OF RS.47.21 LACS W AS ANNEXED ALONG WITH THE TAX AUDIT REPORT FILED AND PLACED BEFORE THE ASSESS ING OFFICER IN THE COURSE OF THE ORIGINAL ASSESSMENT PROCEEDINGS. IT IS ALSO AB UNDANTLY CLEAR FROM THE RECORDS AND THE ASSESSMENT ORDER THAT THE ASSESSING OFFICER FAILED TO TAKE NOTICE OF THE AFORESAID ANNEXURE 4 WHILE COMPLETING THE ORIGINAL ASSESSMENT. AFTER COMPLETION OF THE ORIGINAL ASSESSMENT, IT WAS FOUND THAT THE AFORESAID LOAN HAS NOT BEEN REFLECTED IN THE BALANCE SHEET AN D ACCORDINGLY WAS NOT SUBJECT-MATTER OF THE ASSESSMENT IN THE ORIGINAL PR OCEEDINGS. THEREFORE, IT IS CLEAR THAT THE VIEW TAKEN BY THE ASSESSING OFFICER THAT THERE WAS A FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE MATERIAL FACTS FULLY AND TRULY IN TUNE WITH THE AUTHENTICATED TAX AUDIT REPORT CANNOT BE FAULTE D. IT IS ALSO CLEAR THAT NO CONSCIOUS VIEW WAS TAKEN OR NO OPINION WAS FORMED B ASED ON THE IMPUGNED ANNEXURE 4 TO THE TAX AUDIT REPORT IN THE ORIGINAL ASSESSMENT PROCEEDINGS. ACCORDINGLY, IT IS NOT A CASE FOR CHANGE OF OPINION OR A CASE OF REVIEW. THEREFORE, THE CASE LAWS CITED BY THE ASSESSEE ARE CLEARLY DISTINGUISHABLE ON FACTS. THE ACTION OF THE ASSESSING OFFICER CANNOT BE HELD TO BE HIT BY THE EMBARGO PLACED AS PER FIRST PROVISO TO SECTION 147 OF THE ACT. THUS, THE OBJECTION RAISED BY THE ASSESSEE ON LACK OF JURISDI CTION IS NOT SUSTAINABLE IN LAW. WE ACCORDINGLY DISMISS THE GROUND NOS.1 AND 2 OF THE ASSESSEE CONCERNING THE VALIDITY OF REOPENING OF ASSESSMENT. 15. WE SHALL NEXT DEAL WITH THE ISSUE ON MERITS. W E FIND THAT THE IMPUGNED ANNEXURE 4 DOES NOT REFLECT THE NAME OF THE ASSES SEE ANYWHERE. THEREFORE, WHEN SEEN INDEPENDENT OF THE TAX AUDIT REPORT, THE AFORESAID ANNEXURE 4 DOES NOT SHOW ANY NEXUS WITH THE ASSESSEE PER SE . WE ALSO FIND THAT ANNEXURE 4 HAS NO REFERENCE IN THE TAX AUDIT REPORT AND THUS I S NOT AN INTEGRAL PART OF TAX AUDIT REPORT. THIS ALSO ESTABLISHES ON FACTS THAT THERE IS NO NEXUS OR LIVE LINK BETWEEN THE IMPUGNED ANNEXURE AND THE TAX AUDIT REP ORT. IN VIEW OF THESE TO IMPORTANT FEATURES, WE FIND NO DIFFICULTY IN ACCEPT ING THE PLEA OF THE ASSESSEE THAT OWING TO SOME INADVERTENT ERROR ANNEXURE 4 N OT PERTAINING TO ASSESSEE HAS CREPT IN ALONG WITH THE TAX AUDIT REPORT FILED. THE SAID ANNEXURE 4 8 ITA NO.947/PN/2014 THEREFORE APPEARS EXTRANEOUS. IN OUR CONSIDERED VI EW, THE ASSESSEE HAS DISCHARGED ITS ONUS OF PROVING THAT THE IMPUGNED LO AN IS NON-EXISTENT BY FURNISHING THE BANK STATEMENTS AND CONFIRMATORY LET TERS FROM THE PARTIES AND CO-RELATING THE SAME WITH THE BALANCE SHEET ALREADY PLACED ON RECORD. THE FACTS AND CIRCUMSTANCES OF THE CASE AS NOTED ABOVE CLEARLY ESTABLISHES THE BONA- FIDES OF THE PLEA OF THE ASSESSEE. IN VIEW THEREOF , WE HOLD THAT THE IMPUGNED ADDITION OF RS.47,21,887/- UNDER SECTION 68 OF THE ACT IS NOT SUSTAINABLE ON FACTS AND LAW. ACCORDINGLY, THE GROUND NO.3 OF THE ASSESSEE IS ALLOWED. 16. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED. ORDER PRONOUNCED ON THIS 04 TH DAY OF NOVEMBER, 2015. SD/- SD/- ( SUSHMA CHOWLA ) ( PRADIP KUMAR KEDIA ) / JUDICIAL MEMBER $ / ACCOUNTANT MEMBER PUNE ; DATED : 04 TH NOVEMBER, 2015. & ' ()* +*( / COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-II, PUNE; 4) THE CIT-II, PUNE; 5) THE DR B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. &, / BY ORDER , ' # //TRUE COPY// $ %& # '( / SR. PRIVATE SECRETARY ) '* , / ITAT, PUNE