ITO, New Delhi V. M/s Euro Chambers (India) Pvt. Ltd., New Delhi

ITSSA 1/DEL/2016

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 2531 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 15 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-11-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 16-11-2016
• Assessment Year: misc
• Appeal Filed On: 12-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D C MISHRA
• Keywords: Principle of natural justice; Additional evidence; Valuation report
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E, NEW DELHI) BEFORE SHRI J.S REDDY, ACCOUNTANT MEMBER AND SMT. BEENA A. PILLAI, JUDICIAL MEMBER I.T (SS).A NO.01/DEL/2016 (BLOCK PERIOD : 01/04/1990 -01/01/2001) ITO, WARD NO. 8(3) VS. EURO CHAMBERS (INDIA) PVT. L TD. NEW DELHI 1, PALIKA BAZAR, NEW DELHI PAN : AAACE2782H (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI D. C. MISHRA, CIT DR RESPONDENT BY : SHRI GAUTAM JAIN AND SHRI PIYUSH KUMAR KAMAL, ADVOCATES DATE OF HEARING : 16.11.2016 DATE OF PRONOUNCEMENT: 28.11.2016 ORDER PER BEENA A. PILLAI, JM: 1. THE PRESENT APPEAL HAS BEEN PREFERRED BY THE REVENUE AGAINST THE ORDER DATED 30/10/2015 PASSED B Y LD. CIT (A)-14, NEW DELHI FOR THE BLOCK PERIOD: 01/04/1990 -01/01/2001, ON THE FOLLOWING GROUNDS OF APPEAL: 1. LD. CIT(A) ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING THE ADDITION OF RS. 59,59,121/- MADE BY THE AO ON ACCOUNT OF UNEXPLAINED GEMS AND JEWELLERY. 2. THE APPELLANT CRAVES LEAVE, MODIFY, ADD OR FOREGO ANY GROUND (S) OF APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEAL. 2 I.T(SS)A .NO.1/DEL/2016 2. BRIEF FACTS OF THE CASE AS RECORDED BY THE AUTHORITIES BELOW ARE AS UNDER: 2.1. ASSESSEE IS ENGAGED IN THE BUSINESS OF DEALER OF FOREIGN EXCHANGE, OPERATION OF TELEPHONE BOOTH AND PROVIDING ADVANCE BOOKING AND COURIER BOOKING SERVI CES. A SEARCH OPERATION UNDER SECTION 132 OF THE ACT WAS C ARRIED OUT ON 10/01/2001. ASSESSMENT WAS COMPLETED ON 17/01/2003 WHERE LD.AO MADE ADDITION OF RS.59,59,121/, -ON ACCOUNT OF UNEXPLAINED GEMS AND JEWELLERY FOUND DURING SEARCH. LD.CIT (A) VIDE ORDE R DATED 31/10/2003 DELETED THE ADDITION ON THE GROUND THAT THE PARTIES WERE PRODUCED AND THE PURCHASES WERE DULY SHOWN IN THE BOOKS OF ACCOUNTS. THE REVENUE PREFERR ED AN APPEAL BEFORE TRIBUNAL ON THIS ISSUE. COORDINATE BE NCH OF THIS TRIBUNAL IN ITA (SS) NO. 65/DEL/2004 VIDE ORDE R DATED 20/10/2006, SET ASIDE THE ISSUE OF ADDITION OF RS.59,59,121/- TO THE ASSESSING OFFICER, WITH A DIR ECTION AS INCORPORATED IN PARAGRAPH 10. THE RELEVANT PARAGRA PH IS REPRODUCED HEREUNDER: 10. THE CASE OF THE REVENUE IS THAT DURING THE COU RSE OF SEARCH, THE DIRECTOR OF THE COMPANY, SHRI R.P. JAIN , WAS CONFRONTED WITH THE FACT THAT DURING THE SEARCH, GE MS AND JEWELLERY VALUED AT RS. 59,59,121/- WAS FOUND. HOWE VER, NO PURCHASE RELATED BILLS OR BOOKS OF ACCOUNT, STOC K REGISTER, SALE BOOK IN SUPPORT OF EXISTENCE OF SUCH GEMS AND JEWELLERY WERE FOUND. THEREFORE, SHRI JAIN WAS SPEC IFICALLY ASKED TO EXPLAIN THE SOURCE OF THE SAID GEMS AND JE WELLERY 3 I.T(SS)A .NO.1/DEL/2016 AND AS TO WHETHER ANY BOOKS OF ACCOUNT OR OTHER DOC UMENTS HAVE BEEN MAINTAINED. HE ANSWERED TO BOTH THE QUEST IONS THAT HE WAS NOT IN. A POSITION TO EXPLAIN/TELL ABOU T THE SOURCE OF THE GEMS AND JEWELLERY AND ABOUT THE MAINTENANCE OF BOOKS OF ACCOUNT OR OTHER DOCUMENTS. THE BOOKS OF ACCOUNT OF THE ASSESSEE WERE NOT PRODUCED BEFORE THE ASSESSING OFFICER TILL THE DATE OF THE ASSESSME NT ORDER, THEREFORE) THE SO- CALLED PURCHASE BILLS OF VARIOUS PARTIES PRODUCED DURING THE COURSE OF ASSESSMENT PROCEEDING S WERE CONSIDERED, TO BE FABRICATED BY TAKING ACCOMMO DATION ENTRIES FROM THESE PARTIES SUBSEQUENT TO THE DATE O F SEARCH, 'ON THE OTHER HAND, THE CASE OF THE ASSESSEE IS THA T THE ASSESSEE PURCHASED' GEMS AND JEWELLERY IN THE MONTH OF NOVEMBER AND DECEMBER. HOWEVER, PURCHASE TRANSACTIO NS WERE RECORDED IN THE BOOKS OF SISTER CONCERN M/S E URO APPRAISAL PVT. LTD. THE ASSESSEE HAS FURTHER CLAIME D THAT PURCHASES WERE ON MADE ON CREDIT FROM JAIPUR PARTIE S AND POST DATED CHEQUES WERE GIVEN TO THE PARTIES ON THE DATE OF PURCHASE OF GEMS AND JEWELLERY. IT IS IN CONNECTION WITH THESE POST DATE OF CHEQUES THE NUMBER OF WHICH ARE MENTIONED IN THE PURCHASE BILLS, THE REVENUE HAS FI LED AN APPLICATION FOR ADMISSION OF THE ADDITIONAL EVIDENC E NAMELY COPY OF THE LETTER DATED] 5TH DECEMBER, 2005 OF THE 'ORIENTAL BANK OF COMMERCE, NEW DELHI WHEREIN CHEQU E BOOK CONTAINING 25 LEAVES BEARING NO. 02610 I TO 02 6125 WERE ISSUED TO ASSESSEE ON 22ND JUNE, 2001 WHEREAS THE COPIES OF THE BILLS ISSUED BY M/S ANUPAM CORPORATIO N 4 I.T(SS)A .NO.1/DEL/2016 BEARING THE SI. NO.187 TO 193 ISSUED DURING THE PER IOD '1611~2002 TO 18.12,2002 WHEREIN THE CHEQUE NO.0261 01, 026102,026103, 026104, 026107 AND 026108 HAVE BEEN MENTIONED IN THE SAID BILLS. IT WOULD APPEAR THAT T HE CASE OF THE REVENUE HAVE ALL THROUGH BEEN THAT THE SO CALLE D BILLS PRODUCED DURING THE ASSESSMENT PROCEEDINGS WERE MER ELY FABRICATED ONE. WE ARE OF THE VIEW THAT THE EVIDENC E WHICH THE REVENUE NOW INTENDS TO PRODUCE GOES TO THE VERY ROOT OF THE MATTER AS TO WHETHER THE SAID PURCHASE BILLS WE RE FABRICATED BY THE ASSESSEE AFTER SEARCH OR NOT. THE REFORE, IN THE INTEREST OF SUBSTANTIAL JUSTICE, WE ADMIT THE A PPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE. WE, THEREFORE , SET ASIDE AND RESTORE THIS ISSUE TO THE FILE OF THE ASS ESSING OFFICER TO GIVE TO THE ASSESSEE AN OPPORTUNITY TO E XPLAIN THE ADDITIONAL EVIDENCE AND RECORD SUCH OTHER EVIDENCES AS THE ASSESSEE MIGHT TO PRODUCE AGAINST THE ADDITIONAL EV IDENCE AND DECIDE THE ISSUE IN ACCORDANCE WITH THE LAW AFR ESH. 2.2. LD. AO ISSUED NOTICE DATED 30.05.2008, PURSUAN CE TO THE DIRECTIONS BY THIS TRIBUNAL AND ASSESSEE WAS GI VEN OPPORTUNITY TO SUBMIT THE DETAILS REGARDING THE IMP UGNED ADDITION. THE ASSESSEE SUBMITTED EVIDENCE AND SUBMI TTED THAT THE CHEQUES WERE NOT ISSUED AT THE TIME OF PUR CHASE, AND ASSESSEE HAD RECEIVED THE CHEQUE-BOOK FROM BANK IN THE MONTH OF JANUARY 2001. LD.AO REJECTED THE SUBMISSIONS MADE BY ASSESSEE AND CONFIRMED THE ADDITION PREVIOUSLY MADE. 5 I.T(SS)A .NO.1/DEL/2016 3. AGGRIEVED BY ORDER OF LD. AO ASSESSEE PREFERRED AN APPEAL BEFORE LD.CIT (A). LD.CIT (A) OBSERVED ISSUE REVOLVED AROUND ACTUAL DATE OF ISSUANCE OF CHEQUE-BOOK BY OR IENTAL BANK OF COMMERCE. HE PLACED RELIANCE UPON THE ORDER OF HIS PREDECESSOR DATED 31/10/2003, FOR THE YEAR UNDE R CONSIDERATION, WHICH HAS BEEN REPRODUCED HEREINBELO W: I HAVE CONSIDERED THE SUBM I SSIONS OF THE APPELLANT AS WELL AS THE F I NDINGS OF THE LD . AO & , HI GHER APPELLATE AUTHORITIES AND THE HON ' BLE COURTS . I INCLINE TO AGREE WITH THE CONTENTION OF THE APPELLANT THAT THE LD . AO I S NOT JUSTIFIED IN MAK I NG ADD I TION OF RS. 59 , 59 , 121/ - FOR A L LEGED UNEXPLAINED GEMS AND JEWELLERY FOUND DURING SEARCH . MY LD . PREDECESSOR HAS GIVEN A DETAILED AND SPEAKING FINDI NG ON THE ADDIT I ON UNDER CONSIDERATION AT PARA 6 O N PAGE 4 IN H I S ORDER DATED 31 . 10 . 2003 IN APPEAL NO . DEL/CITA2/02- 03 / 252 . THE RE L EVANT PART OF THE FINDINGS IS REPRODUCED AS UNDER : - 6. FROM THE FACTS MENTIONED ABOVE IT IS APPARENT TH AT GEMS AND SEMIPRECIOUS STONES WERE FOUND DURING THE SEARCH AS PER ANNEXURE J1 AND J-2 OF THE PANCHNAMA AND THESE WERE SEIZED. THE FIRST POINT FOR DECISION WHE THER THE STOCK WAS REFLECTED IN THE BOOKS OF ACCOUNTS OR NOT . THERE IS NO DISPUTE ON THE FACT THAT THE STOCK WAS PURCHASED DURING THE FINANCIAL YEAR 2000-01 AND SINCE THE SEARCH WAS CONDUCTED ON 11.01.2001, IT WILL NOT BE COVERED AS UNDISCLOSED INCOME IF IT IS FOUND TO BE ENTERED IN THE BOOKS OF ACCOUNTS. IT IS TRUE THAT THE ASSESSEE DID NOT P RODUCE 6 I.T(SS)A .NO.1/DEL/2016 S ATISFACTORY REPLY BEFORE THE AO BUT IS CLAIMED THAT HE WAS NOT GIVEN ADEQUATE OPPORTUNITY . THEREFORE , TO MEET THE , END OF JUSTICE THE AO WAS REQUIRED TO GAVE TO THE APPEL LANT ADEQUATE OPPORTUNITY AND TO VERIFY , THE CLAIMS MADE BY IT . THE APPELLANT PRODUCED BEFORE THE AO CONFIRMATIONS ORDERS , INVOICES, BILLS , BANK STATEMENTS AND THE FOR INSTANCE , THERE ARE BILLS FROM JAIN BANDHU EXPORTS DATED 12-12-2000 FOR THE SALE OF RUBY CUTS 01 59 CARATS FOR A SUM OF RS.88501- THE BILL CONTAINS THE RAJASTHAN SALES TAX NO . AND THE CENTRAL SALES TAX NUMBER AND GIVES THE FULL ADDRESS OF THE SELLER . IN VIEW OF THESE SALE DETAILS AVAILABLE , THE SALE OF JEWOLS CANNOT BE HELD TO BE BOGUS MERELY BECAUSE THE PAYME NT WAS MADE IN CASH. THERE ARE STATEMENTS OF ACCOUNTS SHOWING THESE TRANSACTIONS . THESE ACCOUNTS ALSO SHOW PAYMENTS BY CHEQUE, FOR EXAMPLE , FOR RS. 2 , 27 , 542 . 50 PAID TO M/S JAIN BANDHU EXPORT . THERE ARE ALSO LETTERS SUGGESTING CANCELLATION OF S ALES AND RETURN OF THE AMOUNTS OR ITS CONSIDERATION. THERE. ARE BANK STATEMENTS OF ANUPAM CORP . IN PNB THAT HAVE BEEN SUBMITTED CONFIRM I NG THE PURCHASE OF THE PRECIOUS STONE FROM THAT FIRM . MANY OF THESE PAYMENTS HAVE BEEN PAID BY CHEQUE AS WELL AS IN CASH . THERE ARE INVOICES AND PAYMENTS BY CHEQUES OF RS. 2 , 98 , 3001- FROM VIJAY SHREE ENTERPRISES . THUS , THERE APPEARS NO DOUBT THAT THE TRANSACTIONS WERE A PART AND PARCEL OF THE BUSINESS OF THE APPELLANT AND THESE WERE ENTERED IN THE BOOKS OF AC COUNTS . 7 I.T(SS)A .NO.1/DEL/2016 SINCE THE FINANCIAL YEAR DURING WHICH THE TRANSACTI ONS WERE CARRIED OUT WAS NET OVER , THESE TRANSACTIONS CANNOT COME WITHIN THE PURVIEW CH . XIV-B . EVEN ON MERITS JT IS FOUND THAT THE ADDITION HAS BEEN MADE ONLY ON ACCOU NT OF DIFFERENCE IN VALUATION AND NOT BECAUSE OF ANY FACT THAT ANY PARTICULAR ITEMS OF STOCK FOUND DURING THE SEAR CH WERE NOT ACCOUNTED FOR . THE APPELLANT HAS SUBM I TTED A LIST OF ALL SUCH STONES AND JEWELS SHOWING THE PURCHASE RATE AN D THE RATE APPLIED BY THE VALUE R. FOR INSTANCE , THERE I S BILL MO. 190 FROM ANUPAM CORPN THAT SHOWS THE RATE OF BOTA A T 184 . 05 CARAT AND VALUED AT RS . 131 PER CARAT . IT'S VALUE IS ASSESSED AT RS . 24169/- IN THE VALUATION REPORT AT S I . NO . 1 , 2 , 3 , 5 AND 6 . THE WEIGHT GIVEN IN THE VALUATION REPORT TALLIES WI TH THE MENTIONED IN THE PURCHASE BILL. BUT THE RATE APPL IED IN THE VALUATION REPORT IS AT RS . 50 , RS.2COI- , RS . 3001- , RS.2001- AND RS . 1001- RESPECTIVELY AS AGAINST RS . 131/- FOR WHICH THESE WERE PURCHASED. THE BILL ALSO SHOWS THAT A SUM OF R S. 68000 ' - WAS PAID BY CHEQUE OUT OF THE TOTAL VALUE OF RATE RS . 68169/- . THE APPELLANT HAD CONTESTED THE VALUATION EVEN DURING THE SEARCH . THE APP ELLANT HAD SUBMITTED A COPY OF LETTER DATED 28-2-2001 TO THE DOLT (INV . ) DISPUTING THE VALUATION AND REQUESTING FOR RE-VALUATION . THE APPELLANT HAD SUBMITTED THAT MR . V IJ ENDRA K . JAIN SHOULD NOI ; BE CALLED FOR VALUATION BECAUSE HE HAD AN ALTERCATION WITH H I M AT THE T I ME OF SEARCH . HE HAD MADE SEVERAL OTHER COMPLAINTS AND RESISTED FOR THE REVALUATION OF THE VALUES. 8 I.T(SS)A .NO.1/DEL/2016 UNDER THESE FACTS AND CIRCUMSTANCES OF THE CASE IT CANNOT BE SAID THAT THE VALUATION IS UNDISPUTED . THEREFORE , ON A CAREFUL CONSIDERATION OF ALL THE FACTS AND CIRCUMST ANCES OF THE CASE I AGREE WITH THE APPELLANT THAT SINCE THE STOCKS ARE SHOWN IN THE BOOKS OF ACCOUNTS AND SINCE SOME O F THE PARTIES HAVE ALSO APPEARED BEFORE THE AO AND CERTIF IED THE FACT , OF HAVING SOLD THE GOODS THE APPELLANT, NO ADDITION U/S 158BC CAN BE MADE ON ACCOUNT OF DIFFERENCE IN VALUATION , IN ANY EVENT THE STOCK IS REQUIRED TO BE VALUED AT COST OR AT MARKET RATE WHICHEVER IS LESS . THEREFORE , THE ADDITION IS DELETED . ' KEEPING INTO CONSIDERATION THE ENTIRETY OF FACTS AN D CIRCUMSTANCES OF THE APPELLANT'S CASE I HAVE NO REA SON TO DEVIATE FROM THE ABOVE ORDER OF MY PREDECESSOR AS T HE LD . AA HAS NOT BROUGHT ANY NEW FACTS ON RECORDS . ACCORDINGLY , THE ADDITION OF RS . 59 , 59 , 121/- FOR ALLEGED UNEXPLA I NED GEMS AND JEWELLERY IS DELETED . HENCE , THE GROUND OF APPEAL IS ALLOWED. 4. FROM THE SUBMISSIONS/EVIDENCES FILED BY THE ASSESSEE, LD.CIT (A) ALSO OBSERVED THAT THE DATE OF LETTER ISSUED BY ORIENTAL BANK OF COMMERCE WAS DATED 22.01.2001 INSTEAD OF 22/06/2001 WHICH WAS TYPOGRAPHICAL ERROR IN THE ORDER DATED 20/10/2006 O F THIS TRIBUNAL. 4.1. AGGRIEVED BY THE FINDINGS OF LD.CIT (A), THE R EVENUE IS IN APPEAL BEFORE US NOW. 9 I.T(SS)A .NO.1/DEL/2016 5. THE LD. DR SUBMITTED THAT LD.CIT (A) HAS NOT FOL LOWED THE DIRECTIONS ISSUED BY THIS TRIBUNAL VIDE ORDER D ATED 20/10/2006. HE SUBMITTED THAT THE 1 ST APPELLATE AUTHORITY ADMITTED THE ADDITIONAL EVIDENCE WITHOUT GIVING AN OPPORTUNITY TO LD. AO, THEREBY VIOLATING PRINCIPLES OF NATURAL JUSTICE. HE SUBMITTED THAT THERE HAS TO BE AN ASSESSMENT ORDER WHICH IS NOT TRACEABLE. HE THUS REQUESTED TIME OF 15 DAYS TO TRY AND PROCURE THE 2 ND ASSESSMENT ORDER PASSED BY LD.AO. 6. ON THE CONTRARY THE LD.AR REFERRED TO THE OBSERV ATIONS IN THE ORDER DATED 20/10/2006, PASSED BY HIS TRIBUN AL. HE SUBMITTED THAT THIS TRIBUNAL HAD SET ASIDE THE I SSUE TO THE FILE OF THE ASSESSING OFFICER ON THE BASIS OF A LETTER PRODUCED BY THE DEPARTMENT DATED 15/12/2005 GIVEN B Y ORIENTAL BANK OF COMMERCE, NEW DELHI WHEREIN CHEQUE - BOOKS CONTAINING 25 LEAVES BEARING NUMBER IS 026 10 1 TO 026125 WHEREIN IT WAS ADMITTED BY THE BANK THAT THE CHEQUE BOOK WAS ISSUED TO ASSESSEE ON 22/01/2001. LD.AR FURTHER SUBMITTED THAT COPIES OF BILLS ISSUED BY M/S ANUPAM CORPORATION BEARING SERIAL NO. 187 TO 193 WH ICH MENTIONED CHEQUE NUMBERS BELONG TO THE SAME CHEQUE- BOOK. 7. HE ALSO REFERRED TO THE ORDER PASSED BY HONBLE HIGH COURT FOR THE RELEVANT PERIOD UNDER CONSIDERATION I N ASSESSEES OWN CASE IN ITA NO. 858/2007. LD.AR SUBMITTED THAT HONBLE DELHI HIGH COURT VIDE ORDER DATED 10/08/2011 HAS OBSERVED THAT AS THE ASSESSING OFFIC ER 10 I.T(SS)A .NO.1/DEL/2016 HAS ALREADY PASSED ORDER IN RESPECT OF THE ISSUE RE GARDING THE BILLS AND THE NOTINGS THEREON AGAINST WHICH AN APPEAL IS PENDING BEFORE LD.CIT (A) FOR EXAMINATION. THE R ELEVANT EXTRACT OF THE ORDER PASSED BY HONBLE DELHI HIGH C OURT IS AS UNDER: HE THUS DOES NOT SEEK TO PRESS THE PRESENT APPEAL QUA THE ISSUE OF THE MATTER BEING REMANDED TO THE ASSESSING OFFICER FOR RE-APPRAISAL ON ACCOUNT OF T HE ADDITIONAL EVIDENCE, BUT SUBMITS THAT THERE ARE CER TAIN OBSERVATIONS MADE IN THE ORDER OF THE ITAT, WHICH M AY PREJUDICE HIM IN AS MUCH AS THEY SEEK TO GIVE AN IMPRESSION OF A FINDING HAVING BEEN RETURNED THAT T HE APPELLANT HAD ISSUED CHEQUES FROM A CHEQUE BOOK OBT AINED SUBSEQUENTLY QUA THE BILLS OF EARLIER DATE, IN OUR CONSIDERED VIEW IN THE IMPUGNED ORDER THE IT AT AFTER RECORDING THE SUBMISSION OF THE RIVAL PARTIES DIRECTED THAT THE ADDITIONAL EVIDENCE RELIED UPON BY THE REV ENUE BE PLACED BEFORE THE ASSESSING OFFICER; WHO THEREAFTER WAS REQUIRED TO PASS FRESH ORDER AFTER GIVING DUE OPPOR TUNITY TO THE ASSESSEE. THE ADDITIONAL EVIDENCE WHICH THE REV ENUE WAS ALLOWED TO PLACE ON RECORD WAS A LETTER ISSUED BY THE ORIENTAL BANK OF COMMERCE DATED 15.12.2005, WHEREIN IT IS STATED THAT CHEQUE BOOK, CONTAINING 25 LEAVES BEARI NG NOS. 026101 TO 026125 WAS ISSUED ON 22.01.2OO1. AS TO WH AT WOULD BE THE EFFECT OF THIS LETTER HAD TO BE EXAMIN ED BY THE ASSESSING OFFICER. SINCE THE ASSESSING OFFICER HAS ALREADY PASSED AN ORDER. IT WILL BE NOW FOR THE CIT(A) TO E XAMINE 11 I.T(SS)A .NO.1/DEL/2016 THIS ISSUE. IN THESE CIRCUMSTANCES ON THIS ASPECT T HE LEARNED COUNSEL FOR THE ASSESSEE DOES NOT PRESS THE ISSUE ANY FURTHER IN THE PRESENT APPEAL. 7.1. LD.AR SUBMITTED THAT ASSESSEE DID NOT CLAIM TH AT CHEQUES WERE ISSUED AT THE TIME OF PURCHASE. IN FAC T HE SUBMITTED THESE CHEQUES WERE ISSUED ONLY AFTER THE PARTIES STARTED INSISTING FOR PAYMENT AND THE NOTIN G IS ON THE BILLS REGARDING THE CHEQUE NUMBERS ISSUED TO TH ESE PARTIES, BEING MERE RECORDS OF THE PAYMENT MADE IN THE NORMAL COURSE OF BUSINESS. HE FURTHER REFERRED TO T HE 3 RD PARTY EVIDENCES PRODUCED BEFORE THE ASSESSING OFFIC ER AT THE TIME OF THE 2 ND ROUND OF ASSESSMENT PROCEEDINGS, WHEREIN ALL THESE PARTIES FROM WHOM PURCHASES WERE MADE HAD SUBMITTED CONFIRMATIONS OF THE TRANSACTION S, COPIES OF ACCOUNTS, COPIES OF BANK STATEMENTS, WHIC H WERE EXAMINED BY ASSESSING OFFICER. HE SUBMITTED THAT TH ESE EVIDENCES NO-WHERE SUGGESTED IN ANY MANNER THAT CHEQUES WERE ISSUED BY THE ASSESSEE AT THE TIME OF PURCHASE. 7.2. LD.AR DEMONSTRATED BY WAY OF A BILL PRODUCED A T PAGE 245 OF THE PAPER BOOK THAT THE BILL HAS BEEN ISSUED BY THE SELLER ON 08/12/2002 THE ASSESSEE. ASSESSEE ON THE SAID BILL HAS MADE THE PAYMENT ON 08/03/2001 WIDE CHEQUE NUMBERS 026103, WHICH IS AFTER A PERIOD OF 90 DAYS FROM THE DATE OF ISSUANCE OF THE BILL. HE SUBMITTED THAT IDENTICAL NOTING IS HAVE BEEN MADE ON ALL THE BILLS PRODUCED IN THE PAPER BOOK AT PAGES 243 TO 257. HE ALSO 12 I.T(SS)A .NO.1/DEL/2016 SUBMITTED THAT THERE ARE SOME BILLS ON WHICH THE AS SESSEE HAS MADE PAYMENT IN CASH OFFICER HAS NOT DOUBTED BY ASSESSING OFFICER. HE PLACED HIS RELIANCE UPON THE ORDER PASSED BY LD.CIT (A). 8. WE HAVE PERUSED THE ARGUMENTS OF BOTH THE SIDES IN THE LIGHT OF THE RECORDS PLACED BEFORE US. AS SUBMITTED BY THE LD. DR, WE WAITED FOR 15 DAYS FOR HIM TO PRODUCE TH E 2 ND ASSESSMENT ORDER. ON 28.11.2016, LD.DR SUBMITTED ASSESSMENT ORDER DATED 31.12.2008, WHICH IS ALREADY THERE ON RECORD. 8.1. FROM THE RECORDS WE OBSERVE THAT THE LD. AO PA SSED ORIGINAL ASSESSMENT ORDER ON 17/01/2003 UNDER SECTI ON 158 BC (C) OF THE ACT. ADDITION MADE BY LD.AO WAS DISPUTED BY THE ASSESSEE BEFORE THE LD.CIT (A) AND THEN BEFORE THIS TRIBUNAL. THIS TRIBUNAL SET ASIDE THE I SSUE FOR LIMITED PURPOSES OF VERIFICATION OF WHETHER THE CHE QUES WERE ISSUED TO THE PARTIES BY ASSESSEE SUBSEQUENT T O 22/01/2001 OR NOT. THIS TRIBUNAL GRANTED LIBERTY TO ASSESSEE TO SUBMIT BEFORE LD.AO, WITH ALL MATERIALS TO ARRIVE AT A PROPER CONCLUSION. 8.2. FROM THE PAPER BOOK FILED BEFORE US IT IS OBSE RVED THAT ASSESSEE HAD FILED SUFFICIENT MATERIALS ON REC ORD TO PROVE THAT CHEQUES WERE ISSUED TO VARIOUS PARTIES A FTER 22/01/2001 AND THAT THE NOTINGS MENTIONED ON THE BI LLS WERE MERELY AS PROOF OF PAYMENTS BEING MADE TO THE 13 I.T(SS)A .NO.1/DEL/2016 RESPECTIVE PARTIES IN THE NORMAL COURSE OF FUNCTION ING OF BUSINESS. 8.3. WE OBSERVE THAT LD.AO HAS NOT DISPUTED THE PUR CHASE OF JEWELLERY AND JEWELS DURING THE FINANCIAL YEAR. FROM THE ACCOUNTS OF THE 3 RD PARTIES WHICH WERE PRODUCED BY ASSESSEE BEFORE LD.AO, IT IS OBSERVED THAT THE PAYM ENTS HAVE BEEN RECEIVED BY THEM SUBSEQUENT TO 22 ND OF JANUARY 2001. THERE ARE CONFIRMATIONS THAT HAVE BEE N PLACED ON RECORD WHICH SHOWS THAT THE PAYMENTS WERE DUE FROM THE ASSESSEE TO THESE PARTIES FOR A CONSID ERABLE PERIOD OF TIME. 8.4. WE OBSERVE THAT ON SETTING ASIDE OF THE ISSUED TO LD.AO BY THIS TRIBUNAL THE 2 ND ASSESSMENT ORDER UNDER SECTION 158 BC (C ) READ WITH SECTION 254 OF THE AC T HAS BEEN PASSED ON 31/12/2008. WE ARE UNABLE TO UNDERSTAND AS TO WHICH ASSESSMENT ORDER LD.DR NOW WISHES TO BRING ON RECORD. THERE HAVE BEEN NO MATERIAL/FRESH FACTS BROUGHT ON RECORD EITHER BY AS SESSING OFFICER OR BY LD.DR TO CONTROVERT THE SUBMISSIONS M ADE BY LD.AR. IT APPEARS THAT IT IS MERELY ON SUSPICION TH AT LD.AO REJECTED THE SUBMISSIONS ADVANCED BY THE ASSESSEE WITHOUT HAVING ANY CONTRADICTORY DOCUMENTS IN HAND. 8.5. THE REVENUE HAS BEEN UNABLE TO ESTABLISH BY WA Y OF COGENT MATERIALS THAT THE PAYMENTS WERE MADE THROUG H THESE CHEQUES AT THE TIME OF PURCHASE WHICH, WAS MU CH BEFORE THE ISSUANCE OF THE CHEQUE BOOK BY THE ORIEN TAL 14 I.T(SS)A .NO.1/DEL/2016 BANK OF COMMERCE. WE AGREE WITH LD.AR THAT THE NOTH INGS OF THE CHEQUE NUMBERS HAS BEEN MADE WHEN THE PAYMENTS WERE MADE TO THE PARTIES WHICH IS A BUSINE SS PRACTICE COMMONLY FOLLOWED BY ASSESSEE. THIS IS FUR THER EVIDENT FROM THE BANK STATEMENTS OF THE PARTIES TO WHOM PAYMENTS HAVE BEEN MADE, WHICH IS ON A SUBSEQUENT D ATE OF ISSUANCE OF CHEQUE BOOK BY ORIENTAL BANK OF COMMERCE. THESE PARTIES HAVE ALSO SUBMITTED THE CONFIRMATION OF RECEIPT OF THE PAYMENTS AS PER THEI R BANK STATEMENTS. 9. WE ACCORDINGLY DISMISSED THE APPEAL FILED BY THE REVENUE. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH NOVEMBER, 2016. SD/- SD/- (J.S.REDDY) (BEENA A. PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 28.11.2016 @M!T. COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DELHI. TRUE COPY. BY ORDER (ITAT, NEW DELHI)