ITO, WD-12(3), KOLKATA, Kolkata V. M/s Abhideep Global Finance Pvt. Ltd., Kolkata

ITA 990/KOL/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7938 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-07-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 09-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROBIN CHOUDHUR Y
• Assessee Lawyers: S K TULSIYAN
• Keywords: TDS
• Section: 143(3); 133A; 133(6); 131; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C, BENC H KOLKATA BEFORE SHRI S.S.GODARA, JM &DR. A.L.SAINI, AM ./ITA NO.990/KOL/2016 ( / ASSESSMENT YEAR:2008-09) ITO, WARD-12(3), KOLKATA VS. M/S ABHIDEEP GLOBAL FINANCE PVT. LTD. 5B, CRESENT TOWER, 229, A.J.C. BOSE ROAD, KOLKATA-700020. ./ ./PAN/GIR NO.: AABCC 2633 F (ASSESSEE) .. (REVENUE) ASSESSEE BY : SHRI ROBIN CHOUDHURY, ADDL. CIT (DR ) RESPONDENT BY : SHRI S.K. TULSIYAN, ADVOCATE / DATE OF HEARING : 25/04/2019 /DATE OF PRONOUNCEMENT : 19/07/2019 / O R D E R PER DR. A. L. SAINI: THE CAPTIONED APPEAL FILED BY THE REVENUE, PERTA INING TO ASSESSMENT YEAR 2008-09, IS DIRECTED AGAINST THE ORDER PASSED BY TH E COMMISSIONER OF INCOME TAX (APPEAL)-10, KOLKATA, WHICH IN TURN ARISES OUT OF A N ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED,28/12/2010. 2. GROUNDS OF APPEAL RAISED BY THE REVENUE ARE AS FOLLOWS: 1. ON THESE FACTS AND CIRCUMSTANCES OF THE CASE, THE L D. CIT(A) HAS ERRED BY GIVING RELIEF TO THE ASSESSEE ON THE ISSUE OF ADDIT ION MADE ON ACCOUNT OF UNDISCLOSED INVESTMENT, UNDISCLOSED INTEREST AND CO MMISSION WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE FAILED TO F ULFILL ITS PRIMARY ONUS TO M/S ABHIDEEP GLOBAL FINANCE PVT. LTD. ITA NO.990/KOL/2016 ASSESSMENT YEAR:2008-09 P PP PA AA AG GG GE EE E | || | 2 22 2 EXPLAIN THE TRANSACTIONS RECORDED IN THE INCRIMINAT ING DOCUMENT WHICH FORMED THE BASIS OF ADDITIONS AND WHICH WAS THE PAR T OF PRINTOUTS OF DATE RETRIEVED FROM THE COMPUTER SYSTEM OWNED BY THE ASS ESSEE DURING THE COURSE OF SURVEY OPERATION CARRIED OUT U/S 133A OF THE AC T IN THE RELEVANT PREVIOUS YEAR. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED BY GIVING RELIEF ON THE ISSUE MENTIONED IN THE GROUND1 ABOVE BY IGNORING THAT THERE WAS MALAFIDE INTENTION OF THE ASSESSEE WHILE OFFERI NG ITS EXPLANATION AS ONE TRANSACTION RECORDED IN THE SAID PIECE OF INCRIMINA TING DOCUMENT WAS ACCEPTED BECAUSE OF THE SAME WAS DONE THROUGH BANKI NG CHANNEL WHEREAS THE ADDITIONS WHICH IS THE SUBJECT MATTER OF ORDER OF A PPEAL WAS BASED ON TRANSACTION MADE IN CASH WHICH WAS RECORDED IN THE SAID IMPUGNED DOCUMENT. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED BY NOT REFERRING THE SUBMISSION OF THE ASSESSEE MADE BEFOR E HIM TO THE A.O. GIVING RELIEF TO THE ASSESSEE ON THE BASIS OF EXPLANATION OFFERED BY THE ASSESSEE BEFORE HIM WHICH WAS NOT OFFERED BY THE ASSESSEE BEFORE TH E A.O. TO MAKE COMMENT THEREON. 4. THE ASSESSEE CRAVES LEAVE TO ALL, ALTER, MODIFY THE GROUNDS OF APPEAL. 3. BRIEF FACTS QUA THE ISSUE ARE THAT A SURVEY OPER ATION U/S 133A OF THE ACT WAS CONDUCTED AT THE PREMISES OF THE ASSESSEE COMPANY O N 13.02.2008. DURING THE COURSE OF SURVEY OPERATION, SOME COMPUTER PRINTOUTS HAVE BEEN TAKEN AND IMPOUNDED. THE ASSESSING OFFICER EXAMINED THE SAID PRINTOUTS AND NOTICED THAT SOME TRANSACTIONS WERE RELATING TO CASH LOANS GIVEN BY THE ASSESSEE COMPANY AND THESE COMPUTER PRINTOUTS, CONTAIN THE DETAILS OF IN TEREST ON CASH LOAN AND CHEQUE LOAN. DURING THE SCRUTINY PROCEEDINGS, THE ASSESSEE COMPANY WAS ASKED TO EXPLAIN THE SOURCE AND NATURE OF TRANSACTIONS NOTED IN COMP UTER PRINTOUT. IN RESPONSE, THE ASSESSEE COMPANY HAS FILED ITS WRITTEN SUBMISSION I N WHICH THEY HAVE RAISED DOUBT ABOUT THE AUTHENTICITY AND VERACITY OF THE SAID COM PUTER PRINTOUTS, BUT ON THE LATER PART OF LETTER, THE ASSESSEE COMPANY HAS ACCEPTED O NLY ONE NOTING OF A LOAN OF RS. 50 LAKH WHICH WAS TRANSACTED THROUGH CHEQUE. THAT I S, THE ASSESSEE COMPANY HAS ACCEPTED ONLY ONE TRANSACTION WHICH WAS MADE BY WAY OF CHEQUE AND DENIED THE OTHER TRANSACTIONS (NOTING IN RESPECT OF RS. 1 CRO RE) WHICH WERE MADE BY WAY OF CASH OR UNDISCLOSED TRANSACTIONS. THE AO NOTED THAT COMPUTER PRINTOUTS HAD BEEN TAKEN FROM THE ASSESSEES COMPUTER WHICH WAS RECOVE RED FROM THE POSSESSION OF THE ASSESSEE. THEREFORE, THE AO WAS OF THE VIEW TH AT WHERE THE ARTICLES ARE M/S ABHIDEEP GLOBAL FINANCE PVT. LTD. ITA NO.990/KOL/2016 ASSESSMENT YEAR:2008-09 P PP PA AA AG GG GE EE E | || | 3 33 3 RECOVERED FROM THE POSSESSION OF THE ASSESSEE, THE ONUS IS ON THE ASSESSEE TO PROVE THAT THE ARTICLE IN QUESTION BELONGS TO SOMEONE ELS E AND NOT TO HIM, THEREFORE, AO NOTED THAT IN THE INSTANT CASE THE ASSESSEE FAILED TO DISCHARGE ITS ONUS. IN VIEW OF THE ABOVE DISCUSSION, IT WAS HELD BY AO THAT CASH L OAN (GIVEN) OF RS. 1 CRORE WAS AN UNDISCLOSED INVESTMENT WHICH WAS NOT DISCLOSED I N BOOKS OF THE ASSESSEE, HENCE AO ADDED BACK RS. 1 CRORE TO THE TOTAL INCOME OF TH E ASSESSEE. THE AO ALSO NOTED THAT INTEREST INCOME OF RS. 4,46,700/- AND COMMISSI ON OF RS. 3,00,000/- WAS NOT DISCLOSED IN THE BOOKS OF THE ASSESSEE, THEREFORE, HE MADE ADDITION OF RS. 7,46,700/-( RS. 4,46,700 + RS.3,00,000). 4.. AGGRIEVED BY THE ADDITION MADE BY THE ASSESSING OFFICER, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A) WHO HAS DELETED THE ADDITION MADE BY AO. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE R EVENUE IS IN APPEAL BEFORE US. 5. BEFORE US, THE LD. DR FOR THE REVENUE HAS PRIMAR ILY REITERATED THE STAND TAKEN BY THE ASSESSING OFFICER WHICH WE HAVE ALREADY NOTED I N OUR EARLIER PARA AND THE SAME IS NOT BEING REPEATED FOR THE SAKE OF BREVITY. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE HAS REITERATED THE SUBMISS IONS MADE BEFORE THE LD CIT(A) AND ALSO DEFENDED THE ORDER PASSED BY THE LD. CIT(A ). 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. WE NOTE THAT THE SURVEY OPERATION U/S 133A OF THE A CT WAS CONDUCTED AT THE PREMISES OF THE ASSESSEE COMPANY ON 13.02.2008. DU RING THE COURSE OF SURVEY OPERATION, SAME COMPUTER PRINT OUTS HAVE BEEN TAKEN AND IMPOUNDED. OUT OF THE SAID PRINT OUTS, THERE IS NOTING OF SOME TRANSACTIO N CONTAINING CASH / LOAN GIVEN BY THE ASSESSEE COMPANY. THE ASSESSING OFFICER MADE TH REE ADDITIONS BASED ON THE COMPUTER PRINT OUTS. WE NOTE THAT AO MADE THREE ADD ITIONS BEING AMOUNTS, NAMELY RS.1,00,00,000/-, RS.3,00,000/-, AND RS. 4,4 6,700/- IN THE HANDS OF THE ASSESSEE COMPANY AS UNDISCLOSED INVESTMENT, UNDISCL OSED INTEREST AND UNDISCLOSED COMMISSION EARNINGS RESPECTIVELY. DURING THE COURSE OF THE ASSESSMENT, THE ASSESSEE WAS CONFRONTED WITH A PRINTOUT ALLEGEDLY T AKEN FROM THE DATA RETRIEVED FROM THE COMPUTER OF THE ASSESSEE, WHEREIN CERTAIN FIGURES AND NOTINGS WERE AVAILABLE. WHILE COMPLETING THE ASSESSMENT, THE AO MADE AN ADDITION OF RS.1 M/S ABHIDEEP GLOBAL FINANCE PVT. LTD. ITA NO.990/KOL/2016 ASSESSMENT YEAR:2008-09 P PP PA AA AG GG GE EE E | || | 4 44 4 CRORE AND OTHER AMOUNTS, ON THE ALLEGED GROUNDS THA T SOME DOCUMENTS HAD BEEN PRINTED FROM THE COMPUTER OF THE ASSESSEE DURING TH E COURSE OF THE SURVEY CONDUCTED ON 13.02.2008, WHICH ACCORDING TO THE AO, RECORDED A PAYMENT OF RS.1CRORE BY CASH IN THE FORM OF A LOAN. DURING THE COURSE OF THE ASSESSMENT, THE ASSESSEE COMPANY HAD EXPLAINED BEFORE THE AO THAT T HE SAID DOCUMENTS HAD NOT BEEN PRINTED OUT FROM THE COMPUTER IN THE PREMISES OF THE ASSESSEE-COMPANY. THIS ACCORDING TO THE ASSESSEE WAS BORNE OUT BY THE FACT THAT THE SAID INCRIMINATING DOCUMENT HAD NOT BEEN A PART OF THE RECORD OF THE S URVEY, AND HAD NOT BEEN RECORDED IN THE IMPOUNDING NOTE HANDED OVER TO THE ASSESSEE-COMPANY AT THE END OF THE PROCEEDINGS OF SURVEY. THE AUTHENTICITY OF T HE INCRIMINATING DOCUMENT HAD BEEN ACCORDINGLY CHALLENGED BEFORE THE AO BY THE AS SESSEE COMPANY DURING THE ASSESSMENT PROCEEDINGS. IT WAS ALSO STATED BEFORE T HE ASSESSMENT PROCEEDINGS THAT EVEN OTHERWISE, AS PER THE DOCUMENT, THE ALLEGED AM OUNT OF RS. 1 CORE, IN CASH, HAD BEEN PAID TO ONE SHRI SAJJAN GOENKA, AND NOT TO THE ASSESSEE-COMPANY. ACCORDINGLY, IT WAS CONTENDED THAT EVEN ON THE FACT S OF THE CASE, THERE COULD BE NO ADDITION IN THE HANDS OF THE ASSESSEE-COMPANY. FURT HER, FROM THE SAID DOCUMENTS THE AO ALSO MADE ADDITIONS IN THE HANDS OF THE ASSE SSEE-COMPANY, BEING AMOUNTS OF RS. 4,46,700/- ON ACCOUNT OF INTEREST ON VARIOUS LOANS, AND RS.3,00,000/- ON ACCOUNT OF COMMISSION RECEIVED FOR THE SAME LOANS. HOWEVER, THE ASSESSEE- COMPANY HAS CHALLENGED THE SAID ITEMS OF FURTHER AD DITION ALSO, ON SPECIFIC GROUNDS THAT IT WAS APPARENT FROM THE SAID DOCUMENT ITSELF THAT ONLY AN AMOUNT OF RS.2,00,000/- HAD BEEN RECEIVED BY THE ASSESSEE-COM PANY AS INTEREST, AND THAT THE SAME WAS DULY DISCLOSED IN THE RETURN OF INCOME. 7. WE NOTE THAT DURING THE APPELLATE PROCEEDINGS, L D CIT(A) EXAMINED THE RECORD OF THE SURVEY PROCEEDINGS AVAILABLE AT PAGES 1 TO 7 OF THE PAPER BOOK FILED BEFORE HIM BY THE ASSESSEE AND THE SAME HAS BEEN CAREFULLY PERUSED BY US ALSO. THESE HAVE BEEN LISTED OUT AS THE - INVENTORY OF COMPUTER DISC ( CD ) IMPOUNDED U/S 133A OF THE INCOME TAX ACT,1961 DURING THE COURSE O F THE SURVEY OPERATION AT THE PREMISES OF M/S MAYANT SECURITIES PVT LTD, 229, AJC BOSE ROAD, KOLKATA ON 13.02.2008. THESE TWO CDS HAVE BEEN IDENTIFIED AS M SPL/CD/1 AND MSPL/CD/2. IT HAS BEEN RECORDED THAT MSPL/CD/2 CONTAINS THE BO OKS OF ACCOUNTS OF M/S CUBE FINTEX PVT LTD MARKED AS ID -MSPL/ CD/2. FURTHER, A S PER THE INVENTORY OF LOOSE M/S ABHIDEEP GLOBAL FINANCE PVT. LTD. ITA NO.990/KOL/2016 ASSESSMENT YEAR:2008-09 P PP PA AA AG GG GE EE E | || | 5 55 5 PAPERS CONTAINING THE VARIOUS PRINTOUTS OF M/S MAYA NK SECURITIES PVT LTD AND OTHER COMPANIES IN THE SAID PREMISES HAVE ALSO BEEN IDENTIFIED AND MARKED AS MSPL/1 TO MSPL-19. THE SAID LIST OF 19 BUNCHES OF L OOSE PAPERS, WITH PAGE NUMBERING HAVE BEEN IDENTIFIED TO CONTAIN SALES AND PURCHASES, AND FINAL COUNTS OF VARIOUS COMPANIES SAID TO BE OPERATING FROM THE SAI D PREMISES. THEREFORE, THE CONTENTION OF THE LD COUNSEL THAT THERE ARE SEVERAL COMPANIES FUNCTIONING FROM THE SAME PREMISES APPEARS TO BE CORRECT. IT IS ALSO CLEAR THAT THE DOCUMENT STATED TO BE INCRIMINATING BY THE AO, AND WHICH FORMED THE BA SIS OF THE ADDITIONS MADE DURING THE ASSESSMENT HAS NEITHER BEEN IDENTIFIED B Y PLACING MARKS OF IDENTIFICATION UNDER ACKNOWLEDGEMENT OF THE ASSESSE E, NOR OR LISTED OUT IN A SPECIFIC MANNER DURING THE COURSE OF THE SURVEY, AN D WHILE PREPARING THE LIST OF IMPOUNDED DOCUMENTS AT THE END OF THE SURVEY PROCEE DINGS. 8. WE HAVE GONE THROUGH THE PAPER BOOK SUBMITTED BY THE ASSESSEE COMPANY. PAGE NO.3 TO 7 OF PAPER BOOK CONTAINS THE LIST OF DOCUME NTS IMPOUNDED. PAPER BOOK PAGE NO.8 CONTAINS THE COMPUTER PRINTOUT/ DETAILS O F LOAN. THIS PRINTOUT, ACCORDING TO THE AO, WAS TAKEN DURING THE COURSE OF THE SURVE Y, HOWEVER, IT APPEARS THAT THE ASSESSEE-COMPANY HAS NOT BEEN QUESTIONED ABOUT THE SAME IN THE COURSE OF THE SURVEY ITSELF, AS THERE HAS BEEN NO RECORD OR FINDI NG BY THE AO IN THE ASSESSMENT ORDER IN THE SAME MATTER. THE MATTER WAS CONFRONTED TO THE ASSESSEE ONLY BY ISSUE OF SUMMON U/S 131 OF THE INCOME TAX ACT, AND THE RE PLY WAS FILED BY THE ASSESSEE ON 24.12.2010. IT IS TO BE OBSERVED THAT THE SURVEY WAS CONDUCTED ON 13.02.2008, WHEREAS THE SUMMON IN THE MATTER OF THE ALLEGED INC RIMINATING DOCUMENT WAS ISSUED ONLY ON 20.12.2010 DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, WHICH WERE FINALIZED ON 28.12.2012. THEREFORE, IT APPEARS THAT THERE HAS BEEN A CONSIDERABLE AND UNEXPLAINED DELAY ON THE PART OF T HE AO IN CONFRONTING THE ASSESSEE ABOUT SUCH AN IMPORTANT PIECE OF WHAT APPE ARED TO THE AO TO BE AN INCRIMINATING DOCUMENT. THEREFORE, WE FIND CONSIDER ABLE MERIT IN THE CONTENTION OF THE ASSESSEE COMPANY DURING THE APPEAL THAT THE PRINTOUT WAS NOT TAKEN DURING THE COURSE OF THE SURVEY, BUT AT A MUCH LATER AND U NKNOWN DATE. IN ANY CASE, THE AO REQUIRED THE ASSESSEE TO EXPLAIN DURING THE COUR SE OF THE ASSESSMENT, ALL CASH TRANSACTIONS EXCEEDING RS.20,000/-, FAILING WHICH T HE SAME WOULD BE TREATED AS INCOME FROM 'OTHER SOURCES' AND ADDED IN THE HANDS OF THE ASSESSEE COMPANY. IT M/S ABHIDEEP GLOBAL FINANCE PVT. LTD. ITA NO.990/KOL/2016 ASSESSMENT YEAR:2008-09 P PP PA AA AG GG GE EE E | || | 6 66 6 WAS EXPLAINED THAT THE REPLY TO THE SUMMON HAD BEEN FILED BY THE ASSESSEE COMPANY AND IT IS EXPLAINED THAT THE NAME OF THE AS SESSEE COMPANY WAS APPEARING ONLY AT ONE PLACE (LINE NO. 6 ) OF THE ALLEGED PRIN TOUT, AND THAT THE ASSESSEE COMPANY HAD RECEIVED INTEREST OF RS.2,00,000/- IN T HE MONTH OF AUGUST ON LOAN ADVANCED TO M/S GOLDENGATE PROPERTIES LTD DURING TH E IMMEDIATE PRECEDING YEAR. IT HAS ALSO BEEN SUBMITTED THAT THE TRANSACTIONS W ERE DULY RECORDED IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE-COMPANY. THE AUDITED ACCOU NTS OF THE COMPANY WERE ALSO FILED DURING ASSESSMENT, AS ALSO IN THE COURSE OF THE APPELLATE PROCEEDINGS. IT WAS EXPLAINED THAT THE ASSESSEE COMPANY, BEING A NB FC COMPANY, HAS GRANTED INTEREST BEARING LOANS TO M/S GOLDENGATE PROPERTIES LIMITED AMOUNTING TO RS.50,00,000/- ON 11-10-2006 DRAWN ON ABN AMRO BANK A/C NO.836419, AND THAT INTEREST OF RS.12,00,000/- WAS ALSO RECEIVED B Y THE ASSESSEE-COMPANY DURING THE SUBJECT ASSESSMENT YEAR AFTER DEDUCTION OF TDS. IT WAS REITERATED BEFORE THE AO THAT BOTH, LOAN AND INTEREST TRANSACTIONS HAD BE EN CARRIED OUT VIA PROPER BANKING CHANNELS. BY WAY OF SUPPORTING SUCH ARGUMEN TS THE ASSESSEE-COMPANY HAS ALSO FILED COPIES OF THE E BANK STATEMENTS, AND THE SAME ARE AVAILABLE AT PAGES 10-15 OF THE PAPER BOOK. THE CONFIRMATION OF ACCOUN TS BY M/S GOLDENGATE PROPERTIES LIMITED HAS ALSO BEEN FILED, AND ARE AVA ILABLE AT PAGE 16 OF THE PAPER BOOK. 9. WE NOTE THAT AS WOULD BE EVIDENT FROM THE IMPUGN ED PRINTOUT, IT CAN BE SEEN THAT THE SAID PAGE WAS ADDRESSED TO K PRATAP JI AND THE NAME OF SAJJAN GOENKA WAS MENTIONED AGAINST 'CASH LOAN 1.00 CR COMM 3%' (REFE R LINE 2 OF THE EXTRACTS OF THE SAID PRINTOUT). THIS, ACCORDING TO THE LD COUNSEL IMPLIES THAT THE TRANSACTION OF CASH LOAN OF RS.1 CRORE, (IF AT ALL HAS TAKEN PLACE) MUST HAVE BEEN EFFECTED BETWEEN SAJJAN GOENKA AND K PRATAP JI. IT WAS ARGUED THAT SHRI SAJJAN GOENKA IS NO WAY ASSOCIATED WITH THE ASSESSEE COMPA NY AND THAT NO OTHER PIECE OF CORROBORATIVE EVIDENCE HAD BEEN BROUGHT FORTH BY TH E AO, THEREFORE, WE ARE OF THE VIEW THAT THE ADDITION WOULD BE UNSUSTAINABLE U/S 6 9 OF THE INCOME TAX ACT. 10. WE NOTE THAT IF THE TWO EMPOWERING SECTIONS NA MELY SEC 133(6) RELATING TO CALLING FOR INFORMATION, AND SEC.131(1) RELATING TO SUMMON ARE READ TOGETHER, IT WOULD EMERGE THAT THAT SECTION 133(6) SPECIFICALLY STATES THAT THE PROVISION OF M/S ABHIDEEP GLOBAL FINANCE PVT. LTD. ITA NO.990/KOL/2016 ASSESSMENT YEAR:2008-09 P PP PA AA AG GG GE EE E | || | 7 77 7 SECTION 131(1) CAN BE INVOKED AT THE TIME OF SURVEY ONLY WHEN THE ASSESSEE DOES NOT COOPERATE AND REFUSES TO PROVIDE FACILITY TO TH E SURVEY TEAM IN THEIR SURVEY OPERATION. THIS, THEREFORE WOULD NOT BE APPLICABLE TO THE PRESENT SITUATION, AS ACCORDING TO THE LD. COUNSEL THE ASSESSEE-COMPANY H AS FULLY COOPERATED IN THE SURVEY PROCEEDINGS, AND PROVIDED THE NECESSARY FACI LITIES FOR INSPECTION OF BOOKS OF ACCOUNTS AND DOCUMENTS DURING THE COURSE OF SURV EY, AND THAT NO HINDRANCE WAS CAUSED TO THE SURVEY TEAM IN THEIR ENDEAVOUR TO PRE PARE THE INVENTORY OF LOOSE BUNCHES OF COMPUTER PRINTOUTS AND INVENTORY OF BANK ACCOUNTS. IT IS ALSO TO BE INFERRED AS SUCH, ACCORDING TO THE LD COUNSEL THAT THE TEAM OF OFFICIALS HAD TAKEN THE REQUIRED BACKUPS FROM THE COMPUTERS AND TWO C.D .S WERE PREPARED AND IMPOUNDED LISTING OUT THE VARIOUS BOOKS OF ACCOUNTS OF THE SEVERAL COMPANIES OPERATING FROM THE SAME PREMISES. HAVING EXAMINED T HE EMERGENT FACTS AS AVAILABLE IN THE CASE, IT IMMEDIATELY EMERGES THAT THERE WAS AN INTERMINABLE DELAY ON THE PART OF THE ASSESSING OFFICER IN EXAMINING T HE IMPUGNED DOCUMENT LEADING TO ADDITIONS. IT IS SEEN THAT WHILE THE SURVEY TOO K PLACE ON 13.02.2008, THE SUMMON WAS ISSUED ONLY DURING THE FINALIZATION OF T HE ASSESSMENT PROCEEDING ON 20.12.2010, AND THE ASSESSMENT WAS COMPLETED ON 28. 12.2010. IT IS ALSO SEEN THAT THE AO HAS NOT REFERRED TO ANY STATEMENT OR ANY REQ UIREMENT FOR EXPLANATION DURING THE COURSE OF THE SURVEY ABOUT THE IMPUGNED DOCUMENT WHICH HAD LED TO THE ADDITIONS. IN THE CIRCUMSTANCES, IT APPEARS THAT TH E CONTENTION OF THE ASSESSEE THAT THE PRINTOUT WAS TAKEN AT A MUCH LATER DATE, AND NO T DURING THE COURSE OF THE SURVEY IS BORNE OUT FROM THE DELAY IN CALLING FOR EXPLANAT ION BY THE AO. ON EXAMINATION OF THE DOCUMENT ALSO, IT IS SEEN THAT IT DOES NOT B EAR THE MARKS OF IDENTIFICATION OF THE DATE OF SURVEY, OR EVEN THE SIGNATURE OF ANY OF THE PARTIES FUNCTIONING FROM THE PREMISES WHERE THE SURVEY WAS CARRIED OUT. IN THAT SITUATION THE EVIDENTIARY VALUE OF THE DOCUMENT IS REDUCED SUBSTANTIALLY. FURTHER O N EXAMINATION OF THE DOCUMENT, IT IS SEEN THAT IT BEARS A FAX NUMBER ALSO [040-233 02650] AND IT IS EVIDENT FROM THE STD CODE THAT THE CODE BELONGS TO HYDERABAD. THIS M ATTER HAS NEITHER BEEN COMMENTED UPON BY THE AO, NOR HAVE ANY QUESTIONS BE EN RAISED BY THE AO BEFORE THE ASSESSEE. AFTER DETAILED EXAMINATION, IT IS OBS ERVED THAT THE NAME OF THE ASSESSEE FIGURES IN ONE PLACE AS 'CUBE FINTEX PVT L TD, 50 LACS FOT AUGUST MONTH: 2,00,000,' AND IT HAS BEEN EXPLAINED BY THE ASSESSEE THAT THE ASSESSEE-COMPANY HAD RECEIVED INTEREST OF RS.2,00,0 00/- IN THE MONTH OF AUGUST M/S ABHIDEEP GLOBAL FINANCE PVT. LTD. ITA NO.990/KOL/2016 ASSESSMENT YEAR:2008-09 P PP PA AA AG GG GE EE E | || | 8 88 8 ON LOAN ADVANCES TO M/S GOLDENGATE PROPERTIES LTD I N THE IMMEDIATELY PRECEDING YEAR. THIS WE FIND TO BE RECORDED AND DISCLOSED BY THE ASSESSEE-COMPANY AS PER THE AUDITED ACCOUNTS OF THE ASSESSEE. THE NECESSARY EVIDENCE BY WAY OF CONFIRMATION FROM M/S GOLDENGATE PROPERTIES AND THE BANK DETAILS EVIDENCING THE LOAN GIVEN AND INTEREST RECEIVED. ONCE THIS IS CONF IRMED, IT ALSO DEFIES ANY EXPLANATION AS TO WHY THE NAME OF THE ASSESSEE WOUL D FIGURE IN THE PAPER PRINTOUT IN ITS OWN CASE. MOREOVER, IT IS ALSO SEEN THAT THE ASSESSEE-COMPANY HAS NOT DENIED THE TRANSACTIONS MADE IN SO FAR AS THAT THE ASSESSE E COMPANY, BEING A NBFC COMPANY, DID GRANT INTEREST BEARING LOANS TO M/S GO LDENGATE PROPERTIES LIMITED AMOUNTING TO RS.50,00,000/- ON 11-10-2006, DRAWN ON ABN AMRO BANK A/C NO.83641, AND THAT INTEREST OF RS.2,00,000/- WAS RE CEIVED BY THE ASSESSEE COMPANY DURING THE SUBJECT ASSESSMENT YEAR AFTER DE DUCTION OF TDS. IT IS ALSO SEEN THAT THIS CONTENTION OF THE ASSESSEE COMPANY IS BOR NE OUT BY THE NECESSARY EVIDENCE RELATING TO THE LOAN / INTEREST AS PER THE BANK STATEMENT SUBMITTED BY THE ASSESSEE, AS ALSO THE CONFIRMATION OF M/S GOLDENGAT E PROPERTIES LIMITED IS ALSO ENCLOSED AT PAGE 16 OF THE PAPER BOOK. THE ASSESSEE COMPANY HAS ALSO DENIED ANY TRANSACTIONS WITH 'SRI K.PRATAP JI' AND 'SAJJAN GOE NKA', WHOSE NAMES ARE APPEARING IN THE DOCUMENT, AND THE AO HAS NOT MADE ANY OBSERVATION ABOUT THESE NAMES EITHER. THEREFORE, THERE IS MERIT IN THE CONT ENTION THAT THE IMPUGNED TRANSACTIONS, IF AT ALL TO BE BELIEVED TO BE TRUE, ARE BETWEEN THESE TWO PARTIES AND AS THEY HAVE NO BUSINESS LINKS OR TRANSACTIONS WITH TH E ASSESSEE- COMPANY, THE ASSESSEE COMPANY OUGHT NOT TO BE QUESTIONED IN THE MATTER. WE NOTE THAT AO HAS MADE NO ATTEMPT TO EXAMINE ANY OF THE OTHER PARTIES WHOSE NAMES WERE APPEARING IN THE IMPUGNED DOCUMENT, OR TRY TO ESTABLISH EVEN CIRCUMSTANTIAL EVIDENCE THAT THE ASSESSEE WOULD BE A BENEFICIARY FROM THE FIGURES IN THE ALLEGED COMPUTER PRINTOUT. THEREFORE, WE NOTE THAT AO WAS INCORRECT IN SADDLIN G THE FIGURES FOUND IN THE PRINTOUT UPON THE ASSESSEE, MORE SO WHEN THE ASSESS EE HAS DISCLOSED ITS PART OF THE TRANSACTION RELATING TO LOAN AND INTEREST BEFORE TH E AO. WE NOTE THAT THE ASSESSEE HAS DISCHARGED ITS PRIMARY ONUS IN SO FAR AS THE DO CUMENT IS CONCERNED, AND THEREAFTER THE AO HAS NOT MADE ANY CONSEQUENT AND F URTHER ENQUIRIES IN THE MATTER, EVEN FOR NAMES WHICH WERE CLEARLY APPEARING IN THE DOCUMENT, WHICH IN ANY CASE WAS A DISPUTED ONE. WE NOTE THAT AO HAS MADE ADDITI ON BASED ON GUESS WORK WITHOUT HAVING EXAMINED THE OTHER PARTIES (WHICH W ERE MENTIONED IN THE M/S ABHIDEEP GLOBAL FINANCE PVT. LTD. ITA NO.990/KOL/2016 ASSESSMENT YEAR:2008-09 P PP PA AA AG GG GE EE E | || | 9 99 9 COMPUTER PRINT OUT), THEREFORE AO HAS FAILED TO BRI NG ANY COGENT EVIDENCE ON RECORD TO PROVE THAT MONEY WAS BELONGED TO THE ASSE SSEE COMPANY, THEREFORE ADDITION MADE BASED ON SURMISE, CONJECTURE AND GUES S WORK NEEDS TO BE DELETED. HENCE, WE ARE OF THE VIEW THAT LD CIT(A) WAS RIGHT IN DELETING THE ADDITION MADE BY AO, BEING AMOUNTS OF RS.1,00,00,000/-, RS. 4,46, 700/- AND RS.3,00,000/- RESPECTIVELY.THAT BEING SO, WE DECLINE TO INTERFERE WITH THE ORDER OF ID. C.I T.(A) DELETING THE AFORESAID ADDITIONS. HIS ORDER ON THES E ADDITIONS ARE, THEREFORE, UPHELD AND THE GROUNDS OF APPEAL OF THE REVENUE ARE DISMIS SED. 11. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED ORDER PRONOUNCED IN THE COURT ON 19.07.2019 SD/- ( S.S.GODARA ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / DATE: 19/07/2019 ( SB, SR.PS ) COPY OF THE ORDER FORWARDED TO: 1. ITO, WARD-12(3), KOLKATA 2. M/S ABHIDEEP GLOBAL FINANCE PVT. LTD. 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 6. GUARD FILE. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, KOLKA TA BENCHES