Sri. BHARAT SHANTILAL SHAH, MUMBAI V. DCIT CENT. CIR. - 24 & 26, MUMBAI

ITSSA 141/MUM/2006

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8272 (ITAT-MUMBAI)
• Duration Of Justice: 6 year(s) 2 month(s) 20 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 18-07-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 14-06-2012
• Assessment Year: misc
• Appeal Filed On: 28-04-2006
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Income from undisclosed sources; Search and seizure; Loose papers; Block assessment; Documents seized
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI D BENCH MUMBAI BENCHES, MUMBAI BEFORE SHRI G E VEERABHADRAPPA, PRESIDENT & SHRI VIJAY PAL RAO, JM IT(SS)A NO.141/MUM/2006 (BLOCK PERIOD ) BHARAT SHANTILAL SHAH 6 TH FLOOR, MEHTA BHAVAN 311 CHARNI ROAD MUMBAI 400 004 THE DY COMMR OF INCOME TAX CENTRAL CIR 24 & 26, MUMBAI (APPLICANT) (RESPONDENT) PAN NO. AACPS1921Q ASSESSEE BY MS AARTI VISSANJI REVENUE BY SH C G K NAIR DT.OF HEARING 14 TH JUNE 2012 DT OF PRONOUNCEMENT 18 TH , JULY 2012 PER VIJAY PAL RAO, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 8/3/2006 CIT(A) ARISING FROM BLOCK ASSESSMENT UNDER SECTION 158 BC READ WITH SECTION 158 BD OF I T ACT. 2 THE ASSESSEE IS RAISED FOLLOWING GROUNDS IN THIS APPEAL: 1. ON THE FACTS AND C CIRCUMSTANCES OF THE CASE THE ASSESSING OFFICER HAS ERRED IN MAKING ADDITION OF ` 23,36,000/- AS UNACCOUNTED INCOME FOR THE FINANCIAL YEAR 2000-02 ON ACCOUNT OF ALLEGED HAWALA PAYMENT OF US$50,000 TO DUBAI. THE SAME IS WITHOUT ANY EQUITY AND JUSTIC E AND BE THEREFORE, DELETED. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE A SSESSING OFFICER HAS ERRED IN MAKING ADDITION OF ` 3,50,000/- ON ACCOUNT OF DIFFERENCE IN BOOK BALANCE OF THE ASSESSEE AND MEGA BOLLYWOOD PVT LTD. THE SAM E BE DELETED. 3 THE ASSESSEE HAS ALSO FILED A LETTER DATED 11/6/2 012 SEEKING PERMISSION TO FILE ADDITIONAL GROUND AS UNDER: IT(SS)A NO.141/M/2006 BHARAT SHANTILAL SHAH 2 THE ADDITION OF ` 23,36,000/- MADE U/S 158BD IS BASED ON INFORMATION OBTAINED FROM EXTERNAL SOURCES AND DOES NOT FORM SUBJ ECT MATTER OF THE SATISFACTION RECORDED FOR INITIATING PROCEEDINGS AGAINS T THE APPELLANT. 4 THE BRIEF FACTS GIVING RISE TO THE CONTROVERSY IN THIS APPEAL ARE AS UNDER: A SEARCH AND SEIZURE ACTION UNDER SECTION 132 OF TH E ACT WAS CARRIED OUT ON 12/01/2001 AT THE OFFICIAL PREMISES OF M/S ANAND MO TOR GARAGE AT MEHTA BHAVAN, 311 CHARNI ROAD, MUMBAI. VARIOUS BOOKS OF ACCOUNTS AND LOOSE PAPERS WERE SEI ZED AS PER ANNEXURE A OF PANCHNAMA DATED 12/01/2001. MO ST OF BOOKS OF ACCOUNT AND DOCUMENTS SEIZED WERE PERTAINING TO THE ASSESSEE SH RI BHARAT SHAH AND HIS GROUP CONCERNS. DURING THE COURSE OF BLOCK ASSESSMENT PR OCEEDINGS OF M/S ANAND MOTOR GARAGE, PROCEEDINGS UNDER SECTION 158 BC READ WITH SECTION 158 BD INITIATED AGAINST THE ASSESSEE. NOTICE UNDER SECTION 158 BC READ WITH SECTION 158 BD WAS ISSUED AND SERVED ON THE ASSESSEE ON 22/1/2003. TH E ASSESSEE FILED BLOCK RETURN ON 21/02/2003 AT UNDISCLOSED INCOME OF RS.NIL. THE ASS ESSING OFFICER HAS MENTIONED THAT ANOTHER BLOCK ASSESSMENT UNDER SECTION 158 BD HAS B EEN COMPLETED ON 20/2/2004 AND THEREFORE, THE BLOCK PERIOD IS OVERLAPPING FOR THE ASSESSMENT YEAR 1990 91 TO 2000- 01 AND THE INCOME PERTAINING TO THIS PERIOD H AS BEEN SHOWN IN THE BLOCK RETURN FILED ON 28/03/2002. 4.1 AN INFORMATION WAS RECEIVED FROM MAHARASHTRA PO LICE AUTHORITY THAT THE ASSESSEE HAS SENT US$ 50,000 TO ONE PARTY KNOWN AS BHATIJA IN DUBAI THROUGH HAWALA, WHOSE TELEPHONE NUMBER IS 2210088 AND THE SAME HAS BEEN COLLECTED BY CHOTA SAKIL AFTER DISCLOSING CODE NUMBER 5. IN THIS REGARD, THE POLICE DEPARTMENT HAS RECORDED TELEPHONIC CONVERSATION BETWEEN THE NAZEEM RIZVI AND CHOTA SHAKIL ON 24/11/2000. 4.2 ON VERIFICATION OF ANNEXURE A-36 PANCHANAMA DAT ED 12/01/2001, IT WAS FOUND THAT IN THE MONTHS OF NOVEMBER AND DECEMBER 2 000, PHONE CALLS HAVE BEEN IT(SS)A NO.141/M/2006 BHARAT SHANTILAL SHAH 3 MADE FROM THE PHONE NUMBER 022-3801837 TO PHONE NUM BER 009714-2210088 ON SEVERAL OCCASIONS. THE ABOVE PHONE NUMBER BELONGS T O M/S SHANTILAL LALLUBHAI & SONS, A GROUP CONCERN OF THE ASSESSEE AND THE PHONE CHARGES HAVE BEEN DEBITED IN THE NAME OF M/S B VIJAYKUMAR & CO, A PARTNERSHIP CONCERN OF THE ASSESSEE. THE ASSESSING OFFICER WAS OF THE VIEW THAT ALL THESE CI RCUMSTANCES HAVE ESTABLISHED THAT THE DUBAI PHONE NUMBER IS HAVING CONNECTION WITH THE ASSESSEE AND BHATIJA IS ALSO CONNECTED WITH SAME NUMBER. THE ASSESSING OFFICER F OUND THAT THE REPORT OF POLICE AUTHORITIES IS CORROBORATED WITH THE EVIDENCE IN TH E FORM OF TELEPHONIC CALLS MADE FROM THE NUMBER OF THE ASSESSEE. ACCORDINGLY, THE A SSESSING OFFICER ISSUED A SHOW CAUSE NOTICE TO THE ASSESSEE ON 13/1/2005 FOR HIS E XPLANATION. 4,3 IN REPLY, THE ASSESSEE HAS MAINLY CONTENDED THA T THE DUBAI TELEPHONE NUMBER IN QUESTION BELONGS TO THE REPUTED JEWELLERY FIRM NAMED AS SAMBY JEWELLERY AND THE ASSESSEES FIRM B VIJAYKUAMR & CO IS ONE OF THE LEADING DIAMOND EXPORTERS FROM INDIA AND HAS BEEN DEALING WITH MANY CUSTOMERS SPREAD ACROSS THE GLOBE. THEREFORE, IT WAS STATED THAT THESE PHONE CALLS WER E MADE FROM THEIR OFFICE BY THE PARTNERS/DIRECTORS/REPRESENTATIVE OF THE JEWELLERY FIRM WHILE VISITED IN THE OFFICE OF THE ASSESSEE AND NOT BY THE ASSESSEE. THE ASSESSING OFF ICER DID NOT ACCEPT THE SUBMISSIONS OF THE ASSESSEE AND FOUND THAT THE ASSE SSEE IS HAVING EXPORT BUSINESS OF DIAMOND TO THE COUNTRIES LIKE USA, HONG KONG, JAPAN AND SINGAPORE AND IMPORTS WERE MADE FROM LONDON, BELGIUM AND ISRAEL. THE ASSE SSING OFFICER HAS REFERRED THE STATEMENT OF THE ASSESSEE RECORDED ON 5/6/2002 AND IN REPLY TO QUESTION NUMBER 12, THE ASSESSEE HAD ADMITTED THAT VERY LITTLE EXPORTS WERE MADE TO DUBAI/GULF COUNTRIES. THE ASSESSING OFFICER FURTHER NOTED THA T THE TELEPHONE CALLS IN THE MONTH OF NUMBER & DECEMBER 2000 HAS BEEN MADE 70 TIMES T O THE TELEPHONE NUMBER 009714-2210088 AT DUBAI BELONGS TO SAMBY JEWELLERY. IT IS NOT A MERE CO-INC IDENCE IT(SS)A NO.141/M/2006 BHARAT SHANTILAL SHAH 4 THAT THE SAME TELEPHONE NUMBER IS REFERRED BY THE P OLICE AUTHORITIES, WHICH INDULGED IN CONVERSATION OF TWO PERSONS FOR THE HAW ALA TRANSACTION OF US$ 50,000 SENT BY THE ASSESSEE. ACCORDINGLY, THE ASSESSING OF FICER MADE AN ADDITION OF ` . 23,36,000/-BY TAKING THE EXCHANGE RATE AT ` 46.72 PER DOLLAR AND TREATED THE SAME AS UNDISCLOSED INCOME OF THE ASSESSEE FOR THE BLOCK PERIOD. 4.4 ON APPEAL THE CIT(A) CONFIRMED THE ADDITION MAD E BY THE ASSESSING OFFICER . 5 BEFORE US THE LD AR OF THE ASSESSEE HAS MAINLY RE ITERATED THE CONTENTIONS AS RAISED BEFORE THE CIT(A) IN PARA 5 AS UNDER: 5 SO FAR AS THE PAYMENT MADE THROUGH HAVALA SOURCES T O THE GANGSTER CHHOTA SHAKIL IS CONCERNED, THE AR OF THE APPELLANT STATED IN THE WRITTEN SUBMISSIONS THAT WHILE THE ASSESSING OFFICER HAS REL IED ON THE CONVERSATION OF TWO PERSONS MENTIONED IN THE POLICE REPORT, NOWHERE I T HAS BEEN BROUGHT OUT THAT OUT OF THE TWO PERSONS, ONE OF THEM WAS THE AP PELLANT. IT HAS BEEN CONTENDED THAT THE ASSESSING OFFICER HAS RELIED ONLY ON CIRCUMSTANTIAL EVIDENCES AND THAT POLICE AUTHORITIES HAVE NEVER IN T HEIR REPORT STATED THAT THE PERSON WHO MADE THE CALL FROM MUMBAI WAS THE APP ELLANT I.E. SHRI BHARAT SHANTILAL SHAH. IT HAS ALSO BEEN STATED THAT THE FO REIGN BUYERS VISIT THE OFFICE OF M/S. B. VIJAYKUMAR & CO. AND THEY ARE ALLOWED TO MAK E OVERSEAS CALLS FOR BUSINESS PURPOSES AND IT MIGHT BE THAT THESE CALLS W ERE MADE BY ONE OF SUCH BUYERS AS THEY SUPPLY JEWELLERY TO VARIOUS GULF COUN TRIES FOR WHICH DIAMONDS ARE BEING BOUGHT FROM M/S. B. VIJAYKUMAR AND CO. THE COUNSEL ALSO REITERATED THE FACT, WHICH WAS STATED BEFORE THE ASSESSING OFFI CER THAT THE APPELLANT HAS VERY MINIMAL BUSINESS TO THE GULF COUNTRIES AND THER E WAS NO NEED FOR HIM TO MAKE SO MANY CALLS TO THE GULF COUNTRY. THIS LEADS TO THE POSSIBILITY THAT VARIOUS CALLS MADE TO THE GULF COUNTRY MIGHT HAVE BEE N FROM THE BUYERS OF THE APPELLANT AND HIS FIRM M/S. B. VIJAYKUMAR & CO. IT HAS ALSO BEEN STATED THAT THE POLICE AUTHORITIES HAVE ALLEGED THAT HAVAL A PAYMENT WAS MADE ON BEHALF OF MR. MORANI WHO HAS DENIED THE ALLEGED TRAN SACTION IN THE COURT OF LAW. 5.1 ON THE ADDITIONAL GROUND REGARDING VALIDITY OF INITIATION OF PROCEEDINGS UNDER SECTION 158 BD, THE LD AR HAS HEAVILY RELIED UPON T HE DECISION OF SPECIAL BENCH OF DELHI TRIBUNAL IN CASE OF MANOJ AGGARWAL VS DCIT RE PORTED IN 113 ITD 377 AND SUBMITTED THAT IN THE BLOCK ASSESSMENT, THE ASSESSI NG OFFICER IS CONCERNED ONLY WITH THE UNDISCLOSED INCOME AND IN THESE PROCEEDINGS HE HAS NO POWER TO CONSIDER MATERIAL AND EVIDENCE NOT DETECT IT AS A RESULT OF SEARCH. IT(SS)A NO.141/M/2006 BHARAT SHANTILAL SHAH 5 5.2 ON THE OTHER HAND, THE LEARNED DR HAS RELIED UP ON THE ORDER OF AUTHORITIES BELOW. HE HAS ALSO RELIED UPON THE DECISION OF HONO URABLE GUJARAT HIGH COURT IN CASE OF PRIYA BLUE INDUSTRIES P. LTD. V. JOINT COMM ISSIONER OF INCOME-TAX REPORTED IN 251 ITR 615, DECISION IN CASE OF RUSHIL INDUSTRIES LTD. V. HARSH PRAKASH REPORTED IN 251 ITR 608 AND DECISION IN CASE OF PREMJIBHAI AND SONS V. JOINT COMMISSIONER OF INCOME- TAX REPORTED IN 251 ITR 625. THE LEARNED DR HAS SU BMITTED THAT THERE IS NO CONDITION UNDER SECTION 158 BD THAT NOTICE UNDER SECTION 158 BD CAN BE ISSUED ONLY IF THE AUTHORITIES HAVE ALREADY SEIZED BOOKS OF ACCOUNT OR OTHER DOCUMENTS BELONGING TO THE ASSESSEE INDICATING THAT THE UNDISCLOSED INCOME BELONGS TO IT. HE HAS SUBMITTED THAT AT ANY STAGE, DURING THE PROCEEDINGS AGAINST T HE PERSON SEARCHED, THE ASSESSING OFFICER IS SATISFIED THAT ANY UNDISCLOSE D INCOME BELONGS TO SOME OTHER PERSON, HE MUST FORTH WITH ISSUE NOTICE TO SUCH OTH ER PERSON ALSO. 6 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. AS FAR AS THE ADDITIONAL GROUND RAISED BY T HE ASSESSEE IS CONCERNED, WE NOTE THAT THE ASSESSING OFFICER HAS WRITTEN A SATISFACTI ON NOTE AS UNDER: I THE FILES SEIZED VIDE ANNEXURES A-34, A35 A--41F ROM THE PREMISES OF ANANA MOTOR GARAGE PERTAIN TO SHRI BHARAT SHAH. THE S AME HAS BEEN ADMITTED BY SHRI SHAH VIDE HIS STATEMENT DATED 24.6 .200. THESE ANNEXURES CONTAIN CERTAIN TELEPHONE BILLS. ON EXAMINATION OF T HE SAME IT IS THAT TELEPHONE CALLS ARE MADE TO PERSONS IN DUBAI AND OT HER PLACES WITH WHOM SHRI BHARAT SHAH HAS BUSINESS CONNECTION. HENCE, TH E CALLS MADE ARE FOR BUSINESS PURPOSE AND THE EXPENDITURE IS NOT AN ALLO WABLE EXPENDITURE. HENCE THE EXPENDITURE WHICH IS NOT ALLOWABLE, HAS BE EN CLAIMED, RESULTING -IN UNDUE BENEFIT /ADVANTAGE TO SHRI BHARAT SHAH - 2 FROM PERUSAL OF ANNEXURE A-11, IT IS CLEAR THAT SH RI BHARAT SHAH HAS CREATED BOGUS TENANCY RIGHTS IN FAVOUR OF HIMSELF, HIS FAMI LY MEMBERS AND EMPLOYEES TO ACQUIRE PROPERTY RIGHTS FOR HIMSELF IN THE PROPE RTY SITUATED AT 220 WALKESHWAR ROAD, SINCE THE TENANCY RIGHT IS A VALUA BLE RIGHT, THE SAME WOULD NOT HAVE BEEN CREATED WITHOUT MONETARY CONSIDER ATION. SINCE NO SUCH CONSIDERATION IS SHOWN IN THE BOOKS OF ACCOUNT OF SHRI BHARAT SHAH, THE SAME WOULD HAVE BEEN PAID FROM HIS UNDISCLOSED INCO ME. IT(SS)A NO.141/M/2006 BHARAT SHANTILAL SHAH 6 3 IN VIEW OF THE ABOVE FINDINGS, 1 AM SATISFIED THA T THE UNDISCLOSED INCOME/INVESTMENTS IN THE ABOVE MENTIONED ANNEXURES BELONG TO BHARAT SHAH. HENCE PROCEEDINGS U/S 158 BC R.W.S 158BD REQUI RED TO BE INITIATED IN THE CASE OF BHARAT S SHAH WHO IS ASSESSED WITH THE UNDERSIGNED . 6.1 FROM THE SATISFACTION NOTE, IT IS CLEAR THAT TH E ASSESSING OFFICER WAS SATISFIED THAT THE SEIZED MATERIAL SHOWS SOME UNDISCLOSED INC OME BELONGING TO THE ASSESSEE. AS FAR AS THE ASSESSMENT OF UNDISCLOSED INCOME ON A CCOUNT OF HAWALA PAYMENT IS CONCERNED THAT IT IS AN ISSUE TO BE DECIDED ON MERI TS AND WOULD NOT EFFECT THE INITIATION OF PROCEEDINGS UNDER SECTION 158 BD. AC CORDINGLY, WE DO NOT FIND ANY MERIT IN THE ADDITIONAL GROUND RAISED BY THE ASSESS EE. HENCE THE SAME IS DISMISSED. ON MERITS: 7 FROM THE SEIZED MATERIAL AND FACTS OF THE CASE, I T IS ESTABLISHED THAT 70 TO 80 CALLS WERE MADE TO A PARTICULAR TELEPHONE AT DUBAI FROM THE TELEPHONE BELONGING TO THE ASSESSEE. IT IS ALSO ESTABLISHED THAT THE T IMING OF PHONE CALLS MATCHES WITH THE TIMING OF THE TRANSACTION OF HAWALA PAYMENT OF THE US$ 50,000 AS ALLEGED IN THE POLICE REPORT. HOWEVER, THERE WAS NO MATERIAL OR EV IDENCE EXCEPT THE POLICE REPORT TO SHOW THAT THE MONEY OF US$ 50,000 WAS ACTUALLY P AID BY THE ASSESSEE ON BEHALF OF THE ASSESSEE. 7.1 EVEN, THE MOMENT OF THE SAID AMOUNT OF MONEY IS ALSO NOT THE ESTABLISHED BY ANY MATERIAL OR EVIDENCE EXCEPT THE POLICE REPORT. THE AUTHORITIES BELOW HEAVILY RELIED UPON THE POLICE REPORT AND THE CIRCUMSTANTIA L EVIDENCE OF PHONE CALLS. IN THE ABSENCE OF ANY DIRECT EVIDENCE TO SHOW THAT US$ 50,000 WAS ACTUALLY CHANGED HANDS AND ONE OF THE PARTIES IN THE TRANSACTION OF MONEY TRANSFER IS ASSESSEE, THE POLICE REPORT, WHICH IS SUBJECT TO THE SCRUTINY OF COURT OF LAW, AS SUCH CANNOT BE TAKEN AS CONCLUSIVE EVIDENCE TO ESTABLISH THE ACTUA L PAYMENT OF HAWALA MONEY BY THE ASSESSEE. THE SEIZED MATERIAL HOWEVER, CORROBO RATES THE POLICE REPORT ONLY TO IT(SS)A NO.141/M/2006 BHARAT SHANTILAL SHAH 7 THE EXTENT THAT THE ALLEGED PHONE CALLS WERE MADE T O DUBAI FROM THE TELEPHONE OF THE ASSESSEE BUT DO NOT ESTABLISH THE ACTUAL HAWALA PAYMENT OF SUCH AMOUNT BY THE ASSESSEE. 7.2 SINCE THE POLICE REPORT IS SUBJECT TO THE COURT FINDING AND JUDGMENT; THEREFORE, UNTIL AND UNLESS THE DECISION OF THE COU RT ON THE POLICE REPORT IS AVAILABLE THE SAID EVIDENCE BROUGHT ON RECORD BY THE DEPARTME NT IS NOT SUFFICIENT TO MAKE THE ADDITION. HOWEVER, WE HAVE NO DOUBT IN OUR MIND TH AT THE SEIZED MATERIAL HAS ESTABLISHED THE FACT THAT THE TELEPHONE CALLS WERE MADE FROM THE ASSESSEES TELEPHONE TO DUBAI IN WHICH THE ALLEGED HAWALA TRAN SACTION WAS ALLEGEDLY DONE. THEREFORE, THERE IS A DIRECT CONNECTION BETWEEN THE SEIZED MATERIAL AND THE ALLEGED HAWALA TRANSACTION. BUT SINCE THE POLICE REPORT ITS ELF CANNOT BE TAKEN AS CONCLUSIVE EVIDENCE, WE THEREFORE, SET ASIDE THE ISSUE TO THE RECORD OF THE ASSESSING OFFICER TO RECONSIDER IT IN THE LIGHT OF THE DECISION OF THE COURT ON THE POLICE REPORT IN QUESTION. 8 GROUND NUMBER 2 IS REGARDING ADDITION OF RS. 3.50 LAKHS ON ACCOUNT OF DIFFERENCE IN BOOK BALANCE OF THE ASSESSEE AND MEGA BELLWOOD PRIVATE LTD. 8.1 DURING THE COURSE OF SEARCH AND SEIZURE, LOOSE PAPERS FILE ANNEXURE A8 CONTAINING 1 TO 8 PAGES SEIZED FROM THE OFFICE OF M /S ANAND MOTOR GARAGE AS PER PANCHNAMA DATED 12/01/2001. PAGE NUMBER 8 OF THE SE IZED PAPER SHOWS SOME TRANSACTION OF ASSESSEE WITH THE GROUP COMPANY M/S MEGA BOLLYWOOD PVT LTD. SINCE THERE WAS DIFFERENCE IN THE BALANCE AS SHOWN IN THE SEIZED LOOSE SHEETS AND IN THE BOOKS OF ACCOUNTS, THE ASSESSING OFFICER ASKED THE ASSESSEE TO EXPLAIN. THE ASSESSEE HAS EXPLAINED THE DIFFERENCE DUE TO NON- INCLUSION OF SOME CHEQUE PAYMENT /RECEIPTS PENDING RECONCILIATION BY THE ACCOUNTANTS AS WELL AS SOME FIGURE WAS ONLY WRITTEN BY MISTAKE. HE WAS NOT SATISFIED WITH THE E XPLANATION OF THE ASSESSEE AND IT(SS)A NO.141/M/2006 BHARAT SHANTILAL SHAH 8 TREATED THE DIFFERENCE OF RS. 3.50 LAKH AS UNEXPLAI NED INVESTMENT AND ADDED BACK TO THE TOTAL UNDISCLOSED INCOME OF THE ASSESSEE FOR THE BLOCK PERIOD. 8.2 ON APPEAL THE CIT(A) CONFIRMED THE ADDITION MAD E BY THE ASSESSING OFFICER ON THIS ACCOUNT. 9 BEFORE US THE LD AR OF THE ASSESSEE HAS REITERATE D THE SUBMISSIONS AS MADE BEFORE THE CIT(A) IN PARA 8 AS UNDER: 8. IN SO FAR AS ADDITION MADE ON ACCOUNT OF DIFFEREN CE IN BOOK BALANCE OF THE ASSESSEE WITH M/S MEGA BOLLYWOOD PVT.LTD. IS CO NCERNED, IT HAS BEEN STATED THAT THE ASSESSING OFFICER, IN TOTAL DISREGAR D TO THE REASONING OF THE FACT OF THE CASE MADE AN ADDITION AS HE OVERLOOKED THE F ACT THAT THE DIFFERENCE WAS ON ACCOUNT OF NON-INCLUSION OF PAYMENTS AND RECE IPTS PENDING THE RECONCILIATION. IT IS STATED THAT THE ASSESSING OFFI CER HAS EXPLAINED THAT HE OVERLOOKED THE RECEIPTS OF RS.3 LIKHS DATED 10.11.20 00 AND PAYMENT DATED 9-9-2000 OF RS.50,000I- HAS BEEN ACCOUNTED TWICE. I N SO FAR AS THE AMOUNT OF RS.5,31,50,000I- PAID DURING THE PERIOD BETWEEN 1-12- 2000 TO 16-12-2000 IS CONCERNED, IT HAS BEEN STATED THAT IT WAS DUE TO TH E WRONG MANUAL TOTALLING ON THE SEIZED PIECE OF PAPER. INSTEAD OF RS.5,31,50, 000L- IT WAS WRITTEN AS RS.5,32,50,000/- BECAUSE OF WRONG TOTALLING ON THE S EIZED PIECE OF PAPER. IF THE ASSESSING OFFICER HAD PROPERLY RECONCILED THESE FACTS, THERE WOULD HAVE BEEN NO DIFFERENCE IN THE ACCOUNTS OF MIS. MEGA BOTL YWOOD PVT. LTD.8.3 THE LD AR HAS SUBMITTED THAT BOTH THE ASSESSING OFFICER AS WELL AS CIT(A) FAILED TO CONSIDERED THE EXPLANATION OF THE ASSESSEE REGARDING THE DIFFERENCE APPEARING IN THE SEIZED LOOSE SHEETS AND BOOKS OF A CCOUNT BEING CHEQUE RECEIVED OF RS. 3 LAKHS AND PAYMENT OF RS. 50,000 AC COUNTED TWICE. 8.4 ON THE OTHER HAND THE LEARNED DR. HAS RELIED UP ON THE ORDER OF THE AUTHORITIES BELOW. 8.2 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND R ELEVANT MATERIAL ON RECORD. IT IS MANIFEST FROM THE ASSESSMENT ORDER AND THE IMPUG NED ORDER OF CIT(A) THAT THE ASSESSEE EXPLAINED THE DISCREPANCY/DIFFERENCE IN TH E BALANCE AS RECORDED IN THE BOOKS OF ACCOUNT AND LOOSE SHEET SEIZED DURING THE SEARCH AND SEIZURE OPERATIO N AS PER ANNEXURE A. THE ASSESSEE HAS CLEARLY MENTION ED THE REASONS OF DIFFERENCE BEING THE CHEQUE RECEIVED OF RS. 3 LAKH AND PAYMENT OF RS. 50,000/- ACCOUNTED TWICE; BUT NONE OF THE AUTHORITIES BELOW EXAMINED T HE SAID FACTUAL EXPLANATION AND IT(SS)A NO.141/M/2006 BHARAT SHANTILAL SHAH 9 EVEN OVERLOOKED THE SAME WHILE MAKING THE ADDITION IN QUESTION. ACCORDINGLY, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ISSUE TO THE RECORD OF THE ASSESSING OFFICER TO DECIDE THE SAME AFTER CONSIDERING AND EXAMINING THE FACTUAL EXPLANATION GIVEN BY THE ASSESSEE. 10 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSE ORDER PRONOUNCED IN THE OPEN COURT ON THE 18 TH , DAY OF JULY 2012. SD/- SD/- ( G E VEERABHADRAPPA ) PRESIDENT ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 18 TH , JULY 2012 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI