I.T.O Wd - 3(1),kolkata, Kolkata V. M/s Shri Srichand Karamchndani, Kolkata

ITA 976/KOL/2013

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1764 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2017
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 31-07-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 26-04-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: T VARKEY JUDIC IA L M EMBER
• Assessee Lawyers: SAURABH KUMAR
• Keywords: Unexplained cash credit; Corroborative evidences
• Section: 143(3)

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI ABY.T VARKEY, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 976 / KOL / 2013 ASSESSMENT YEAR :2007-08 ITO WARD-3(1), AAYAKAR BHAWAN, 4 TH FLOOR, P-7, CHOWRINGHEE SQUARE, KOLKATAA-69 V/S . M/S SHRI SRICHAND KARAMCHNDANI, 79, LENIN SARANI, KOLKATA-13 [ PAN NO.AOIPK 3575 Q ] /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI SAURABH KUMAR, ADDL. CIT-DR /BY RESPONDENT NONE /DATE OF HEARING 31-07-2017 !' /DATE OF PRONOUNCEMENT 11-08-2017 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-XX, KOLKATA DA TED 17.01.2013. ASSESSMENT WAS FRAMED BY ITO WARD-3(1), KOLKATA U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) VIDE HIS ORDER DATED 29.12.2009 FOR ASSESSMENT YEAR 2007-08. GROUNDS RAI SED BY REVENUE PER ITS APPEAL AS UNDER:- 1. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S BY ALLOWING THE APPEAL OF THE ASSESSEE COMPANY BY ACCEPTING THE FACT THAT THE CASH OF RS.8,97,200/- HAS BEEN DEPOSITED IN BANK OUT OF THE WITHDRAWAL FR OM THE BANK. 2. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S BY ALLOWING THE APPEAL OF THE ASSESSEE SIMPLY BY STATING THAT FROM OBSERVATIO N OF AO THE IDENTITY, CREDIT WORTHINESS OF LOAN CREDITORS AND GENUINENESS OF THE TRANSACTION OF RS.8,80,000/- HAS BEEN SATISFIED. 3. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S BY ALLOWING THE APPEAL OF THE ASSESSEE SIMPLY THAT EXCEPT RS.2,05,500/-, THE ADVANCE OF RS.24,2,584/- WERE RECEIVED THROUGH CHEQUES AND THE ASSESSEE ALSO FILED COPIES OF CONFIRMATION FROM THE PARTIES. ITA NO.976/KOL/2013 A.Y. 2007 -08 ITO WD-3(1) KOL. VS. M/S SHRI SRICHAND KARA MCHNDANI P AGE 2 4. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, M ODIFY OR AMEND ANY GROUND OF APPEAL DURING THE COURSE OF HEARING OF THE CASE. 2. AT THE THRESHOLD IT WAS OBSERVED THAT THE APPEAL WAS FIXED FOR HEARING FOR MORE THAN 9 TIMES AND ALL THE TIME NEITHER THE ASSESSEE NOR HIS AUTHORIZED REPRESENTATIVE APPEARED ON THE DATE OF HEARING. THE REFORE, IT APPEARS THAT ASSESSEE IS NOT INTERESTED AND SERIOUS IN PROSECUTI NG THE APPEAL FILED BY REVENUE. IN OUR VIEW, THE ASSESSEE SHOULD PURSUE TH E APPEAL DILIGENTLY AND SERIOUSLY. WE ALSO FIND THAT AN ATTEMPT WAS ALSO MA DE BY LD. DR TO SERVE THE NOTICE UPON THE ASSESSEE THROUGH ASSESSING OFFICER OF CONCERNED INCOME TAX WARD. HOWEVER, A REPORT HAS BEEN SUBMITTED BY THE A O THAT THE NOTICE FOR THE HEARING WAS SENT THROUGH E-MAIL AT THE E-MAIL ID OF ASSESSEE AVAILABLE IN WEB- SITE IN SPITE OF THAT ASSESSEE FAILED TO APPEAR ON THE APPOINTED DATE. THEREFORE, WE DECIDED TO PROCEED THE HEARING WITHOU T APPEARANCE OF ASSESSEE/ HIS AUTHORIZED REPRESENTATIVE AFTER HEARI NG SHRI SAURABH KUMAR,LD. DEPARTMENTAL REPRESENTATIVE ON BEHALF OF REVENUE. 3. FIRST ISSUE RAISED BY REVENUE IN THIS APPEAL IS THAT LD. CIT(A) ERRED IN DELETING THE ADDITION MADE BY ASSESSING OFFICER FOR 8,97,200/- ON ACCOUNT OF CASH DEPOSITS IN THE BANK. 4. BRIEFLY STATED FACTS ARE THAT ASSESSEE IS AN IND IVIDUAL AND HAS FILED HIS RETURN OF INCOME DATED 11.03.2008 DECLARING TOTAL I NCOME OF 90,780/- ONLY. THE RETURN OF INCOME WAS PROCESSED U/S. 143(1) OF T HE ACT. THEREAFTER THE CASE WAS SELECTED UNDER SCRUTINY AND ACCORDINGLY NO TICE U/S 143(2)/142(1) OF THE ACT WAS SERVED UPON THE ASSESSEE. THE ASSESSMEN T WAS FRAMED U/S. 143(3) OF THE ACT AFTER MAKING CERTAIN ADDITIONS / DISALLOWANCE TO THE TOTAL INCOME OF THE ASSESSEE AT 47,25,816/- ONLY. 5. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AO OBSERVED THAT ASSESSEE HAS DEPOSITED CASH OF 8,97,200/- WHICH WAS EXPLAINED BY HIM FROM THE WITHDRAWAL OF CASH FROM THE BANK ON EARLIER OCC ASION. HOWEVER, AO WAS OF THE VIEW THAT NO PRUDENT ASSESSEE WILL WITHDRAW CAS H FROM THE BANK AND SUBSEQUENTLY DEPOSIT THE SAME CASH TO THE BANK. THE REFORE THE CASH ITA NO.976/KOL/2013 A.Y. 2007 -08 ITO WD-3(1) KOL. VS. M/S SHRI SRICHAND KARA MCHNDANI P AGE 3 DEPOSITED BY ASSESSEE FOR 8,97,200/- WAS TREATED AS UNEXPLAINED CREDIT OF THE ASSESSEE WHICH WAS ADDED TO THE TOTAL INCOME OF ASSESSEE. 6. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE L D. CIT(A). THE ASSESSEE BEFORE LD. CIT(A) SUBMITTED THAT HE WAS MA INTAINING SAVING BANK WITH THE AXIS BANK LTD., ELECTRONIC COMPLEX BRANCH, SALT LAKE, KOLKATA BEARING A/C NO. 3190101000000134. IT WAS ALSO SUBMI TTED THAT HE HAS WITHDRAWN A SUM OF 36,35,847/- IN CASH FROM THE BANK DURING THE FINANC IAL YEAR 2006-07 AND THE CASH DEPOSIT IN THE IMPUGNED BANK REPRESENTS CASH WITHDRAWAL FROM THE SAME BANK ON EARLIER OCCASION. AFTER CONSIDERING THE SUBMISSION OF ASSESSEE LD. CIT(A) CALLED FOR REMAND REPORT FROM THE AO, WHO IN TURN SUBMITTED THAT ASSESSEE HAS NOT FILED ANY F RESH EVIDENCE IN SUPPORT OF CASH DEPOSIT BY HIM IN THE BANK ACCOUNT. FINALLY, C ONSIDERING THE SUBMISSIONS OF ASSESSEE AND THE SUBMISSION OF REMAND REPORT FRO M THE AO, LD. CIT(A) DELETED THE ADDITION MADE BY THE AO BY OBSERVING AS UNDER:- 4-4 I HAVE PERUSED THE ASSESSMENT ORDER, REMAND REP ORT OF THE AO AND CONSIDERED THE SUBMISSION OF THE APPELLANT. THE AO MADE ADDITIONS TOTALLING TO RS.45,35,039/- ON VARIOUS GROUNDS. THE SAME ARE DISCUSSED HERE ONE BY ONE. ON THE FIRST GROUND, ADDITION MADE BY THE AO O F RS.8,97,200/- IS DISCUSSED. THE FACT OF THE CASE IS THAT THERE WERE CASH DEPOSITS IN THE BANK ACCOUNT WITH AXIS BANK LTD. OF THE APPELLANT ON THE VARIOUS DATES. THE AO TREATED THE SAME AS UNEXPLAINED CASH CREDITS AND AC CORDINGLY ADDITION WAS MADE. REMAND REPORT WAS CALLED FOR ON THE SUBMISSIO N OF THE APPELLANT. THE AO MENTIONED IN HIS REMAND REPORT THAT CASH WITHDRA WAL WITHOUT ANY PURPOSE ONLY RE-DEPOSITING THE SAME IS NOT A PRUDENT PRACTI CE. HOWEVER, FROM THE FACTS/DETAILS/COPY OF BANK STATS, IT IS GATHERED TH AT THERE WAS CASH AVAILABLE WITH THE APPELLANT ON THE DATES OF DEPOSITING THE S AME INTO HIS BANK ACCOUNT. ON CAREFUL CONSIDERATION OF THESE FACTS, IT IS CLEA R THAT THE AO COULD NOT BROUGHT ANY MATERIAL ON RECORD WHICH COULD ESTABLIS H THAT THE DEPOSITS OF CASH WAS NOT OUT OF THE CASH WITHDRAWAL BUT THERE WAS CE RTAIN OTHER UNDISCLOSED INCOME/CASH WAS AVAILABLE WITH THE APPELLANT TO INT RODUCE THE SAME IN THE BANK ACCOUNT. IN VIEW OF THE FACTS THAT THERE IS NO CONTRARY DETAILS/FACTS AVAILABLE TO TAKE ADVERSE VIEW AGAINST THE SUBMISSI ON OF THE APPELLANT, THE APPEAL IS DECIDED IN HIS FAVOUR. THE REVENUE, BEING AGGRIEVED, IS IN APPEAL BEFORE U S. 7. WE HAVE HEARD LD. DR AND ALSO GONE THROUGH THE O RDERS OF THE LOWER AUTHORITIES. FROM THE FOREGOING DISCUSSION, WE FIND THAT ASSESSEE HAS MADE DEPOSIT OF CERTAIN AMOUNT IN CASH IN HIS BANK ACCOU NT MAINTAINED WITH AXIS ITA NO.976/KOL/2013 A.Y. 2007 -08 ITO WD-3(1) KOL. VS. M/S SHRI SRICHAND KARA MCHNDANI P AGE 4 BANK. THE ASSESSEE ALSO EXPLAINED THE SOURCE OF CAS H DEPOSIT IN THE IMPUGNED BANK FROM CASH WITHDRAWAL MADE BY HIM ON E ARLIER OCCASIONS. BUT THE AO FOUND THAT THE WITHDRAWAL OF CASH AND DEPOSI T THE SAME IN THE BANK IS NOT PRUDENT PRACTICE AND ACCORDINGLY CONFIRMED THE ADDITION. HOWEVER, LD. CIT(A) DELETED THE ADDITION MADE BY THE AO BY OBSER VING THAT THE AO FAILED TO BRING ANY IOTA OF EVIDENCE SUGGESTING THAT CASH DEP OSIT BY THE ASSESSEE IS NOT THE SAME AMOUNT OF CASH WHICH WAS WITHDRAWN FROM TH E BANK. 7.1 NOW THE ISSUE BEFORE US ARISES FOR OUR ADJUDICA TION SO AS TO WHETHER THE ADDITION MADE BY THE AO FOR THE DEPOSIT OF CASH IS UNDISCLOSED INCOME OF THE ASSESSEE. IT IS UNDISPUTED FACT THAT CASH WAS WITHD RAWN FROM THE BANK BY ASSESSEE. HOWEVER ON A LATER DATE CASH WAS DEPOSITE D IN THE BANK ACCOUNT OF THE ASSESSEE. IN OUR CONSIDERED VIEW, THE AO HAS NO T PROVED HIS ALLEGATION SUGGESTING THAT THE CASH DEPOSITED BY THE ASSESSEE WAS NOT FROM CASH WITHDRAWAL FROM THE BANK. THE AO HAS ALSO NOT BROUG HT ANYTHING ON RECORD SUGGESTING THAT CASH WITHDRAWN BY THE ASSESSEE HAS BEEN UTILIZED FOR SOME OTHER PURPOSE. IN THIS REGARD, THE REMAND REPORT OF THE AO IS SILENT, TO THAT POINT, WHICH READS AS UNDER:- 1) ADDITION ON ACCOUNT OF CASH DEPOSIT OUT OF CASH WITHDRAWAL OF RS.8,97,200/-: SOURCE OF CASH DEPOSITS WAS TREATED BY THE AO AS INCOME FROM UNDISCLOSED SOURCE. ASSESSEE TOOK PLEA BEFORE THE A O THAT HE MADE CASH DEPOSITS OF RS.10,09,700/- OUT OF CASH WITHDRAWALS OF RS.36,35,847/- ON VARIOUS DATES FROM HIS SAVINGS ACCOUNT. THE ASSESSI NG OFFICERS OBSERVATION WAS THAT CASH DEPOSIT OUT OF CASH WITHDRAWALS WAS N OT TENABLE FOR THE REASON THAT CASH WITHDRAWAL WITHOUT ANY PURPOSE ONLY FOR R E-DEPOSITING SAME IS NOT A PRUDENT PRACTICE. ASSESSEE HAS NOT ALSO TAKEN SAME PLEA THAT THESE DEPOSITS WERE FROM UNUTILIZED CASH DRAWN IN EARLIER PERIODS FORM THE SB A/C WITH AXIS BANK LTD. SINCE ASSESSEE COULD NOT FURNISH ANY FRES H SUBMISSIONS REGARDING SOURCE OF CASH DEPOSITS UNDERSIGNED HAS NO COMMENT ON THIS ISSUE. FROM THE PERUSAL OF THE ABOVE REMAND REPORT, WE FIN D THAT THERE IS NO EVIDENCE SUGGESTING THAT THE ASSESSEE DEPOSITED THE CASH IN THE BANK FROM UNDISCLOSED SOURCES. THUS WE HOLD THAT CASH WHICH W AS WITHDRAWN ON EARLIER OCCASIONS WAS DEPOSITED IN THE BANK. IN THE ABSENCE OF ANY DOCUMENTARY EVIDENCE, WE FIND NO REASON TO INTERFERE IN THE ORD ER OF LD. CIT(A). HENCE, THIS GROUND OF REVENUE IS DISMISSED. ITA NO.976/KOL/2013 A.Y. 2007 -08 ITO WD-3(1) KOL. VS. M/S SHRI SRICHAND KARA MCHNDANI P AGE 5 8. NEXT ISSUE RAISED BY REVENUE IN THIS APPEAL IS T HAT LD. CIT(A) ERRED IN DELETING THE ADDITION MADE BY THE AO FOR 8.80 LAKH ON ACCOUNT OF LOAN CREDITORS. 9. THE ASSESSEE, DURING THE YEAR CLAIMED TO HAVE RE CEIVED LOAN OF 8.80 LAKH BUT FAILED TO SUBSTANTIATE THE SAME ON THE BAS IS OF DOCUMENTARY EVIDENCE. THEREFORE AO TREATED THE SAME AS UNEXPLAI NED CASH CREDIT AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 10. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A). THE ASSESSEE BEFORE LD. CIT(A) SUBMITTED THAT THE AMOUN T OF 8.80 LAKH WAS RECEIVED FROM THE FOLLOWING PARTIES:- SL.NO NAME OF THE PARTY AMOUNT (RS) REMARKS 1 RAJ NATH YADAV 7.50 LAKH IT REPRESENTS THE REFUND OF LOAN GIVEN BY THE ASSESSEE DT. 13.02.07 THROUGH ACCOUNT PAYEE CHEQUE AND SAME WAS RETURNED THROUGH ACCOUNT PAYEE CHEQUE DT. 19.02.07 2 -DO- 30,000 LOAN TAKEN BY ASSESSEE 3 GIRIJA SANKAR SHARMA 1.00 LAKH LOAN TAKEN BY ASSE SSEE THE ASSESSEE CLAIMED TO HAVE MADE ALL THE AFORESAID TRANSACTIONS THROUGH ACCOUNT PAYEE CHEQUE ONLY AND PLACED THE CONFIRMATI ON FROM ALL THE PARTIES. IN THIS REGARD, LD. CIT(A) CALLED FOR REMAND REPORT FR OM AO WHO CONFIRMED THE SUBMISSION OF THE ASSESSEE. HOWEVER, AO DID NOT CAR RY OUT ANY ENQUIRY FROM THE RESPECTIVE PARTIES. HOWEVER, LD. CIT(A) AFTER C ONSIDERING THE SUBMISSION OF ASSESSEE AND REMAND REPORT FROM AO DELETED THE A DDITION MADE BY AO BY OBSERVING AS UNDER:- ON THE SECOND GROUND, THE AO MADE ADDITION OF RS.8, 80,000/-. IN THE REMAND REPORT, THE AO NOTED THAT THE APPELLANT COULD NOT F ILE ANY EVIDENCE/DOCUMENTS IN SUPPORT OF LOAN CLAIMED TO HAVE TAKEN, THEREFORE , THE ADDITION WAS MADE. HE MENTIONED THAT OUT OF THE TOTAL LOAN OF RS.8,80, 000/-, RS.7,50,000/- WAS JUST CONTRA ENTRY WHICH HE RECEIVED FROM SRI RAJNA TH YADAV AGAINST LOAN GIVEN BY THE APPELLANT. BOTH THE TRANSACTIONS WERE MADE THROUGH BANK. CONFIRMATION FROM THE PARTY CONCERNED WAS ALSO FILE D. FROM THE OBSERVATION OF THE AO IT IS CLEAR THAT THE IDENTITY, CREDITWORTHIN ESS OF THE LOAN CREDITOR AND GENUINENESS OF THE TRANSACTION HAS BEEN SATISFIED. ITA NO.976/KOL/2013 A.Y. 2007 -08 ITO WD-3(1) KOL. VS. M/S SHRI SRICHAND KARA MCHNDANI P AGE 6 THE REVENUE IS AGGRIEVED WITH SUCH ORDER OF LD. CIT (A) AND HAS NOW COME IN APPEAL BEFORE US. 11. LD. DR BEFORE US VEHEMENTLY RELIED ON THE ORDER OF AO. HE LEFT THE ISSUE TO THE DISCRETION OF THE BENCH. 12. WE HAVE HEARD LD. DR AND ALSO PERUSED THE ORDER OF AUTHORITIES BELOW. THE AO IN THE INSTANT CASE HAS MADE THE ADDITION OF 8.80 LAKH WHICH WAS RECEIVED BY THE ASSESSEE IN HIS BANK ACCOUNT. THE R EASON FOR THE ADDITION WAS THAT ASSESSEE FAILED TO SUBSTANTIATE THE AFORESAID AMOUNT OF LOAN ON THE BASIS OF DOCUMENT. HOWEVER, LD. CIT(A) DELETED THE ADDITI ON MADE BY THE AO BY OBSERVING THAT NECESSARY DOCUMENTS WERE PRODUCED BY ASSESSEE AT THE APPELLATE STAGE. NOW, THE ISSUE BEFORE US ARISES FO R OUR ADJUDICATION SO AS TO WHETHER THE IMPUGNED LOAN CLAIMED BY ASSESSEE REPRE SENTS THE UNEXPLAINED CREDIT OF THE ASSESSEE. IN THIS REGARD, WE FIND THA T THE ASSESSEE HAS PRODUCED NECESSARY CONFIRMATION FROM THE CONCERNED PARTY IN SUPPORT OF HIS CLAIMED. IT WAS ALSO OBSERVED THAT ALL THE TRANSACTIONS WERE MA DE THROUGH BANKING CHANNEL. HOWEVER, ON PERUSAL O REMAND REPORT SUBMIT TED BY AO AT THE APPELLATE STAGE, WE FIND THAT AO HAS NOT MADE ANY E NQUIRY FROM THE RESPECTIVE PARTIES BEFORE ARRIVING AT THE CONCLUSIO N THAT THE IMPUGNED LOAN TAKEN BY ASSESSEE ARE UNEXPLAINED CASH CREDIT, RATH ER, THE AO IN HIS REMAND REPORT SOUGHT PERMISSION FROM LD. CIT(A) FOR MAKING THE NECESSARY ENQUIRY AND VERIFICATION. THE RELEVANT EXTRACT OF THE REMAN D REPORT IS REPRODUCED BELOW:- THE ASSESSEE FILED COPY CONFIRMATION FROM THE PARTI ES. IN ORDER TO VERIFY GENUINENESS OF ASSESSEES CLAIM ENQUIRY OR VERIFICA TION MAY BE MADE, IF PERMISSIONS IF GIVEN. FROM THE ABOVE REMAND REPORT, WE FIND THAT THE NECE SSARY VERIFICATION HAS NOT BEEN CARRIED OUT BY THE AO AT THE REMAND STAGE. THU S, IT IS CLEAR THAT THE EVIDENCE SUBMITTED BY THE ASSESSEE WERE NOT VERIFIE D. IN THIS REGARD, WE FIND THAT THE AO HAS DUAL ROLE AS ADJUDICATOR AS WELL AS INVESTIGATOR. IN OUR CONSIDERED VIEW, AO SHOULD HAVE VERIFIED THE AFORES AID TRANSACTIONS FROM THE CONCERNED PARTIES WITHOUT SEEKING ANY PERMISSION FR OM LD. CIT(A). ITA NO.976/KOL/2013 A.Y. 2007 -08 ITO WD-3(1) KOL. VS. M/S SHRI SRICHAND KARA MCHNDANI P AGE 7 17.1 FURTHER WE ALSO FIND THAT THE ASSESSEE HAS NOT BEEN CO-OPERATING TO THE BENCH IN SPITE OF THE FACT THAT CASE HAS BEEN LISTE D FOR HEARING ON SEVERAL TIMES. THEREFORE, NO EVIDENCE HAS BEEN BROUGHT ON R ECORD BEFORE US BY THE ASSESSEE. IN THIS VIEW OF THE MATTER, WE ARE INCLIN ED TO RESTORE THE MATTER TO THE FILE OF AO FOR NECESSARY VERIFICATION AND ADJUD ICATE THE SAME IN ACCORDANCE IN LAW. IN TERMS OF ABOVE, THIS GROUND O F REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. 13. NEXT ISSUE RAISED BY REVENUE IN THIS APPEAL IS THAT LD. CIT(A) ERRED IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER FOR 24,27,584/- ON ACCOUNT OF UNEXPLAINED CASH CREDIT. 14. THE ASSESSEE, DURING THE YEAR, HAS CLAIMED TO H AVE RECOVERED THE ADVANCE GIVEN TO VARIOUS PARTIES FOR 24,27,584/- ONLY. HOWEVER, THE ASSESSEE FAILED TO FURNISH THE DOCUMENT TO SUBSTANT IATE THE RECOVERY OF ADVANCES FROM THE PARTIES. THEREFORE, THE AO TREATE D THE SAME AS UNEXPLAINED CASH CREDIT AND ADDED TO THE TOTAL INCO ME OF ASSESSEE. 15. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A).THE ASSESSEE BEFORE LD. CIT(A) FILED THE LIST OF PARTIE S TO WHOM THE ADVANCE WAS GIVEN AS WELL AS ADVANCE RECOVERED FROM THEM. SUCH LIST WAS RECORDED/ REFLECTED ON PAGES 3 AND 4 OF THE LD. CIT(A). THE A SSESSEE CLAIMED TO HAVE GIVEN ADVANCE TO VARIOUS PARTIES IN CONNECTION WITH PURCHASE OF LAND AND BUILDING. HOWEVER, ONE OF THE AMOUNT OF 2,29,730/- WAS REPRESENTING THE REFUND FROM KOTAK LIFE INSURANCE CO. SIMILARLY, A C HEQUE OF 60,000/- WAS DISHONORED AS EVIDENT FROM THE BANK STATEMENT. 15.1 THE DEEDS FOR THE PURCHASE OF PROPERTY WERE SU BSEQUENTLY CANCELLED, THEREFORE THE AMOUNT GIVEN BY THE ASSESSEE AS ADVAN CE WAS RETURNED BY THE RESPECTIVE PARTIES. THE ASSESSEE IN SUPPORT OF HIS CLAIM HAS ALSO PRODUCED THE CONFIRMATIONS FROM THE CONCERNED PARTIES. IT WAS AL SO SUBMITTED THAT THE ASSESSEE WAS NON-RESIDENT OF INDIA AND HAS BECOME R ESIDENT IN INDIA DURING THE FINANCIAL YEAR 2006-07 AFTER SPENDING 20 YEARS IN USA. THE ASSESSEE WANTED TO SETTLE IN INDIA AND THEREFORE STARTED THE REAL ESTATE BUSINESS. THEREFORE, VARIOUS ADVANCES WERE GIVEN TO THE BROKE RS FOR THE PURCHASE OF ITA NO.976/KOL/2013 A.Y. 2007 -08 ITO WD-3(1) KOL. VS. M/S SHRI SRICHAND KARA MCHNDANI P AGE 8 VARIOUS PROPERTIES. LD. CIT(A) CALLED FOR REMAND RE PORT FROM THE AO WHO IN TURN CONFIRMED THE SUBMISSION OF THE ASSESSEE. AFTE R CONSIDERING THE SUBMISSIONS OF ASSESSEE AND THE REMAND REPORT SUBMI TTED BY AO, THE LD. CIT- A DELETED THE ADDITION MADE BY AO BY OBSERVING AS U NDER:- ON THE THIRD GROUND, THE AO MADE ADDITION OF RS.24, 27,584/-. THE APPELLANT CLAIMED THAT THERE WAS RECOVERY OUT OF ADVANCES GIV EN AMOUNTING TO RS.24,27,584/- AS HE USED TO GIVE ADVANCES TO LAND BROKERS FOR PURCHASE OF LAND/BUILDING. HOWEVER, THE TRANSACTION COULD NOT T AKE PLACE, THEREFORE, THE RELEVANT AMOUNT HAS BEEN RECEIVED BACK. THE AO FOUN D THAT ALL THE ADVANCES WERE GIVEN BY CHEQUES. THE APPELLANT FURNISHED DETA ILS AS NAMES/ADDRESSES OF THE LAND BROKERS. ALL THE PAYMENTS WERE RECEIVED THROUGH CHEQUES EXCEPT RS.2,05,500/- RECEIVED FROM SRI SUBIR DUTTA AS CASH . THE APPEAL ALSO FILED COPIES OF CONFIRMATIONS/STATEMENTS FROM SRI SUBIR D UTTA, RITA MUKJHERJEE AND HARBINDER S. AGARWAL IN SUPPORT OF HIS CLAIM. I FIN D THAT NO ADVERSE MATERIAL OR FINDING HAVE BEEN GIVEN BY THE AO TO CONTROVERT THE SUBMISSION OF THE APPELLANT. THE REVENUE IS AGGRIEVED WITH SUCH ORDER OF LD. CIT (A) AND HAS NOW COME IN APPEAL BEFORE US. 16. LD. DR VEHEMENTLY RELIED ON THE ORDER OF AO AND PRAYED BEFORE THE BENCH TO CONFIRM THE SAME. 17. WE HAVE HEARD LD. DR AND PERUSED THE MATERIAL A VAILABLE ON RECORD. IN THE INSTANT CASE, THE ADDITION WAS MADE BY THE AO F OR 24,27,584/- ON ACCOUNT OF NON PRODUCTION OF SUPPORTING EVIDENCE. HOWEVER, ASSESSEE BEFORE LD. CIT(A) FILED THE NECESSARY EVIDENCE IN SUPPORT HIS CLAIM FOR THE RECOVERY OF ADVANCE GIVEN TO VARIOUS PARTIES, REFUND FROM KOTAK INSURANCE CO. ETC. ACCORDINGLY, LD. CIT(A) GRANTED RELIEF TO ASSESSEE. HOWEVER ON PERUSAL OF REMAND REPORT, WE FURTHER FIND THAT AO HAS JUST REL IED ON THE SUBMISSION MADE BY THE ASSESSEE WITHOUT MAKING ANY VERIFICATION RAT HER THE AO SOUGHT PERMISSION FROM THE LD. CIT(A) FOR NECESSARY VERIFI CATION OF THE SUBMISSION MADE BY THE ASSESSEE. THE RELEVANT EXTRACT OF REMAN D REPORT IS REPRODUCED BELOW:- NOW THE ASSESSEE HAS FURNISHED COPIES OF STATEMENT OF CONFIRMATION FROM SHRI SUBIR DUTTA, RITA MUKHERJEE AND HARBNINDER S A GARWAL. IN ORDER TO VERIFY GENUINENESS OF ASSESSEES CLAIM ENQUIRY OR VERIFICA TION MAY BE MADE, IF PERMISSION IS GIVEN. ITA NO.976/KOL/2013 A.Y. 2007 -08 ITO WD-3(1) KOL. VS. M/S SHRI SRICHAND KARA MCHNDANI P AGE 9 THUS, FROM THE ABOVE, IT IS CLEAR NO VERIFICATION O F WHATSOEVER TO VERIFY THE GENUINENESS OF THE AFORESAID TRANSACTION WAS CARRIE D OUT BY AO. IN THIS REGARD, WE FIND THAT THE AO HAS DUAL ROLE AS ADJUDI CATOR AS WELL AS INVESTIGATOR. IN OUR CONSIDERED VIEW, AO SHOULD HAV E VERIFIED THE AFORESAID TRANSACTIONS FROM THE CONCERNED PARTIES WITHOUT SEE KING ANY PERMISSION FROM LD. CIT(A). 17.1 FURTHER WE ALSO FIND THAT THE ASSESSEE HAS NOT BEEN CO-OPERATING TO THE BENCH IN SPITE OF THE FACT THAT CASE HAS BEEN LISTE D FOR HEARING ON SEVERAL TIMES. THEREFORE, NO EVIDENCE HAS BEEN BROUGHT ON R ECORD BEFORE US BY THE ASSESSEE. THEREFORE IN THE INTEREST OF NATURAL JUST ICE AND FAIR PLAY, WE ARE INCLINED TO RESTORE THIS ISSUE TO THE FILE OF AO TO ADJUDICATE IN ACCORDANCE WITH LAW AND WITH A DIRECTION TO CARRY OUT NECESSARY VER IFICATION TO ESTABLISH THE GENUINENESS OF THE TRANSACTIONS. THUS, THIS GROUND OF REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. 18. IN THE RESULT, FOR STATISTICAL PURPOSE, THE APPEAL OF REVENUE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 11/ 08/2017 SD/- SD/- (ABY. T. VARKEY) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP #$%&- 11 / 08 /201 7 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-ITO WARD-3(1), AAYAKAR BHAWAN, 4 TH FLOOR P-7 CHOWRINGHEE SQUARE, KOLKATA-69 2. /RESPONDENT-M/S SHRI SRICHAND KARAMCHANDANI, 79, LANIN SARANI, KOLKATA-13 3.%.%/ 0 / CONCERNED CIT KOLKATA 4. 0- / CIT (A) KOLKATA 5.34566/ , / , / DR, ITAT, KOLKATA 6.589:; / GUARD FILE. BY ORDER/ $, /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO / ,