THE ACIT, 1(2), V. SHRI GAURAV AGRAWAL,

ITSSA 173/IND/2008

• Counselvise Citation: [2010] 124 COUNSELVISE.COM (IT) 8787 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 2 month(s) 4 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 30-11-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 20-09-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 25-09-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K SINGH
• Assessee Lawyers: H P VERMA
• Keywords: Unexplained investment
• Section: 143(3); 142(1); 153A; 132; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH : INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C.SHARMA, ACCOUNTANT MEMBER PAN NO. : ADEMPA1997R I.T.(SS).A.NO. 173/IND/2008 A.Y.: 2005-06 ACIT, SHRI GAURAV AGARWAL, 1(2), VS BHOPAL. BHOPAL. APPELLANT RESPONDENT APPELLANT BY : SHRI K.K.SINGH, SR. DR RESPONDENT BY : SHRI H.P.VERMA, ADV. AND SHRI ASHISH GOYAL, C. A. O R D E R PER R. C. SHARMA, A.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) DATED 11.07.2008 FOR THE ASSESSMENT YEAR 2005-06 IN THE MATTER OF ORDER PASSED U/S 153A/143 (3) OF THE INCOME-TAX ACT, 1961. 2.1 RIVAL CONTENTIONS HAVE BEEN HERD AND RECORDS PERUSED. -: 2: - 2 2.2 FACTS IN BRIEF ARE THAT THERE WAS A SEARCH AT AGRAW AL GROUP ,MECH & FAB AND GTV GROUP U/S 132 ON 16.9.200 5. VARIOUS ADDITIONS WERE MADE BY THE ASSESSING OFFICE R WHILE FRAMING ASSESSMENT U/S 153A. IN THE APPEAL FILED BE FORE THE CIT(A), VARIOUS ADDITIONS WERE DELETED AND SOME OF THE ADDITIONS WERE CONFIRMED. BOTH REVENUE AND ASSESSEE ARE IN APPEALS/CROSS OBJECTION BEFORE US. THE BASIC GRIEV ANCE OF THE LD. CIT DR IN ALL THESE CASES PERTAINS TO ASSESSEE S FAILURE TO FILE RETURN OF INCOME WITHIN TIME, THEREFORE, THE A O DID NOT FIND SUFFICIENT TIME TO ENQUIRE INTO THE MATTER. HE FURT HER SUBMITTED THAT EVEN THE QUESTIONNAIRE ISSUED WAS NO T PROPERLY REPLIED BY THE ASSESSEE AND THE AO WAS LEFT WITH NO OPTION BUT TO COMPLETE THE ASSESSMENT WITHOUT VERIFYING THE TH INGS. AS PER THE LD. CIT DR, THE LD. CIT(A) HAS DISPOSED THE MATTER AND ALLOWED THE ASSESSEES APPEAL IN A SUMMARY MANNER A ND WITHOUT GIVING RELEVANT FINDINGS, THEREFORE, IT WAS SUBMITTED THAT THE ORDER OF LD. CIT(A) SHOULD BE SET-ASIDE AN D THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF AO FOR DECID ING AFRESH. 2.3 ON THE OTHER HAND, THE LD. AUTHORIZED REPRESENTATI VE DREW OUR ATTENTION TO THE RESPECTIVE DATES OF ISSUE OF NOTICES -: 3: - 3 U/S 153A, U/S 143(2) AND 142(1) AND ALSO DATE OF IS SUE OF THE QUESTIONNAIRE AND THE RESPECTIVE REPLIES FILED BY T HE ASSESSEE. AS PER LD. AUTHORIZED REPRESENTATIVE, ALL THE FINAL ACCOUNTS AND RECORDS WERE BEFORE THE AO AND HE HAS MADE THE ASSESSMENT AS PROVIDED U/S 143(3) AND NOT U/S 144. BY HIGHLIGHTING THE RELEVANT DATES, THE LD. AUTHORIZED REPRESENTATIVE EMPHASIZED THAT THE DELAY WAS ATTRIB UTABLE TO THE LD. AO FOR WHICH THE ASSESSEE HAS BEEN MADE TO SUFFER UNREASONABLY AND HIGH PITCHED ASSESSMENTS WERE MADE . BY REFERRING TO THE VARIOUS ADDITIONS MADE BY THE ASSE SSING OFFICER, THE LD. AUTHORIZED REPRESENTATIVE CONTENDE D THAT GLANCE OF THE ADDITION ITSELF WOULD REVEAL THAT THE RE WAS NO REASON TO MAKE THE IMPUGNED ADDITIONS. THE ADDITION S WERE MADE AND THE LD. AO PREFERRED NOT TO GIVE ANY NOTIC E TO THE ASSESSEE BEFORE DOING SO. IN REPLY TO THE LD. CIT D RS REQUEST FOR RESTORING THE MATTER BACK TO THE FILE OF THE AO BY SETTING ASIDE ORDER OF CIT(A), THE LD. AUTHORIZED REPRESENT ATIVE CONTENDED THAT AN APPEAL WAS FILED AGAINST THE ORDE R OF AO BEFORE THE LD. CIT(A) IN DUPLICATE AND IN TURN A CO PY OF IT WITH I.T.N.S. 51 WAS SENT BY HIM TO THE LD. AO. ONE OF T HE COLUMNS -: 4: - 4 OF THE I.T.N.S. 51 IS WHETHER LD. AO WANTS TO APPEA R BEFORE THE LD. CIT(A). AGAIN WHEN CASES WERE FIXED BEFORE HEAR ING, ONE COPY OF SUCH NOTICE WAS SENT TO THE LD. AO. LD. AUT HORIZED REPRESENTATIVE ALSO INVITED OUR ATTENTION TO THE OR DER OF THE LD. CIT(A), WHEREIN HE HAS REQUISITIONED THE CASE RECOR DS FROM THE LD. AO. RECORDS WERE DULY SUPPLIED BY HIM. HOWEVER, THE AO DID NOT PREFER TO APPEAR BEFORE THE AO WHEN THE HEA RING WAS GOING ON. UNDER THESE CIRCUMSTANCES, THE ASSESSEE C ANNOT BE PENALIZED BY RESTORING THE MATTER BACK TO THE FILE OF THE AO IN SO FAR AS AFTER GIVING DETAILED FINDING, THE LD. CI T(A) HAS DELETED THE ADDITIONS WHICH WERE MADE BY THE ASSESSING OFFI CER WITHOUT GIVING COGENT REASONS. 2.4 WE HAVE CAREFULLY CONSIDERED THE CONTENTION OF THE LD. AUTHORIZED REPRESENTATIVE AND LD. SENIOR D.R. AND F IND FROM THE RECORD THAT THERE WAS A SEARCH AT AGRAWAL GROUP , MECH & FAB, AND GTV GROUPS U/S 132 ON 16.9.2005. NOTICE WA S ISSUED BY THE DEPARTMENT AFTER MORE THAN 6 MONTHS O F THE SEARCH U/S 153A. WE FOUND THAT IN ALL THE YEARS EXC EPT FOR ASSESSMENT YEAR 2006-07, NOTICE U/S 153A WAS ISSUED ON ALL THE ASSESSEES ON 22.3.2006, WHICH WAS SERVED ON THE ASSESSEE ON 25.3.2006. THEREAFTER, FORMAL NOTICE U/S 145(2) WAS ISSUED ON 13.6.2006 FIXING THE CASE FOR 20 TH JUNE, 2006. NOTICES U/S -: 5: - 5 143(2) AND 142(1) WAS ISSUED ON 31.8.2007 AND WAS S ERVED ON THE ASSESSEE ON 12.9.2007. WE FOUND THAT THIS IS AF TER MORE THAN ONE YEAR AND FOUR MONTHS AFTER FILING THE RETU RN. SUCH NOTICE WAS ISSUED TO ALL THE ASSESSEES FALLING IN T HE SAME GROUP ON WHICH SEARCH WAS CONDUCTED. DETAILS WERE FILED B Y THE ASSESSEE ON 18.12.2007. HOWEVER, THE AO DID NOT RAI SE ANY QUERY AND COMPLETED THE ASSESSMENT U/S 143(3). HAD THE AO ANY GRIEVANCE WITH RESPECT TO NON-COOPERATION OF TH E ASSESSEE AND NON-FURNISHING OF THE RELEVANT DETAILS/INFORMAT ION CALLED FOR, HE SHOULD HAVE COMPLETED THE ASSESSMENT U/S 14 4 RATHER U/S 143(3). NOTICES U/S 143(2) & 142(1) WERE ISSUED AFTER MORE THAN ONE YEAR AND FOUR MONTHS AFTER FILING THE RETU RN. THE DELAY IS ATTRIBUTABLE TO THE AO FOR WHICH ASSESSEE HAS BEEN MADE TO SUFFER. AFTER GOING THROUGH THE ORDER OF TH E LD. CIT(A), WE FOUND THAT THE ADDITIONS WERE DELETED AFTER RECO RDING DETAILED FINDINGS. IN NONE OF THE APPEALS, THE REVE NUE HAS RAISED ANY GROUND WITH REGARD TO VIOLATION OF RULE 46A. IT IS NOT THE CASE OF THE DEPARTMENT THAT THE LD. CIT(A) RELIED ON DOCUMENTS WHILE DELETING THE ADDITION, WHICH WAS NO T MADE AVAILABLE TO THE AO OR WHICH WERE IN CONTRAVENTION OF RULE 46A. THEREFORE, THE ORDER OF THE LD. CIT(A) CANNOT BE SET-ASIDE AND MATTER CANNOT BE RESTORED TO THE AO FOR DECIDIN G AFRESH. -: 6: - 6 3. FIRST GRIEVANCE OF THE REVENUE RELATES TO DELETION OF ADDITION OF RS. 3,23,067/- MADE BY THE ASSESSING OF FICER ON ACCOUNT OF INTEREST INCOME. 4. FACTS IN BRIEF ARE THAT DURING THE COURSE OF ASSESSMENT, THE AO FOUND THAT THERE WAS OPENING CRE DIT BALANCE OF THE ASSESSEE WITH THE FIRM M/S. MECH & F AB INDUSTRIES AT RS. 26,92,227/- AS ON 1.4.2004 AND TH E SAME BALANCE REMAINED AT THE END OF THE YEAR, BECAU SE NO INTEREST WAS ALLOWED BY M/S. MECH & FAB INDUSTRIES ON THE SAID CREDIT BALANCE. THEREFORE, THE AO OBSERVED THAT 12 % INTEREST SHOULD HAVE BEEN CHARGED ON THE SAID DEPOSIT, ACCORDINGLY, HE CALCULATED NOTIONAL INCOME OF RS. 3,23,0687 BY APPLYING INTEREST RATE OF 12 % ON THE SAID DEPOSIT. 5. BY THE IMPUGNED ORDER, THE LD. CIT(A) DELETED THE SAME AFTER HAVING THE FOLLOWING OBSERVATIONS :- I HAVE SEEN THE ASSESSMENT ORDER AND CONSIDERED THE WRITTEN AS WELL AS THE ORAL -: 7: - 7 SUBMISSIONS AR. I FIND THAT THE SUBMISSIONS OF THE AR ARE CORRECT. THERE IS NO DOUBT THAT M/S. MECH & FAB INDUSTRIES HAS NOT CREDITED ANY INTEREST TO THE ACCOUNT OF ASSESSEE IN THEIR BOOKS. IT IS NOT NECESSARY THAT EVERY DEPOSIT WILL EARN THE INTEREST. THERE IS NO PRESUMPTION THAT THE INCOME, WHICH HAS NOT BEEN EARNED, CAN BE TAXED ON THE PRESUMPTIVE BASIS. THIS PRINCIPLE IS SUPPORTED BY THE HON'BLE SUPREME COURT DECISION IN THE CASE OF CIT VS. A. RAMAN & CO. AS REPORTED ON (1968) 67 ITR 11. S. C. ACCORDINGLY, I HOLD THAT THE ASSESSEE DID NOT EARN ANY INCOME ON THE DEPOSIT FROM M/S. MECH & FAB INDUSTRIES, AND ACCORDINGLY I DIRECT THE AO TO REMOVE THE ADDITION MADE BY HIM AT RS. 3,23,067/-. IN THE RESULT, THE ASSESSEE GETS A RELIEF OF RS. 3,23,067/-. CONSEQUENTLY, GROUND NO.3 IS ALLOWED. -: 8: - 8 6. AGAINST THE ABOVE DELETION, THE REVENUE IS IN FURTHER APPEAL BEFORE US. 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND FOUND FROM THE RECORD THAT THERE WAS CREDIT BAL ANCE OF ASSESSEE WITH M/S. MECH & FAB INDUSTRIES. THE ASSES SEE DID NOT CHARGE ANY INTEREST ON THE SAID ADVANCE AS THE SAME WAS MADE TO HELP THE FAMILY CONCERN, WHICH WAS NOT DOING WELL. THERE IS NO FINDING BY THE ASSESSING OF FICER THAT THE ASSESSEE WAS IN ACTUAL RECEIPT OF ANY INTE REST NOR THAT IN EARLIER OR SUBSEQUENT YEARS ANY SUCH INTERE ST WAS CHARGED ON THE CREDIT BALANCES. AS THERE WAS NO AGREEMENT FOR CHARGING ANY INTEREST, NO RIGHT TO RE CEIVE INTEREST WAS ACCRUED IN ASSESSEES FAVOUR. WE, THER EFORE, DO NOT FIND ANY JUSTIFICATION FOR MAKING THE ADDITI ON OF NOTIONAL INCOME, WHICH WAS NEITHER RECEIVED NOR ACC RUED IN FAVOUR OF THE ASSESSEE. ACCORDINGLY, WE DO NOT F IND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A), WHO HAS D ELETED THE -: 9: - 9 ADDITION BY RELYING ON THE PROPOSITION OF LAW LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF A. RAMAN & CO., 67 ITR 11. 8. NEXT GRIEVANCE OF REVENUE RELATES TO DELETION OF ADDITION OF RS. 4 LAKHS MADE BY THE ASSESSING OFFIC ER ON ACCOUNT OF UNEXPLAINED INVESTMENT IN SHARES OF GTV ENGINEERING LIMITED. 9. FACTS IN BRIEF ARE THAT THE ASSESSEE PURCHASED 99 SHARES OF FACE VALUE OF RS. 10/- FOR A CONSIDERATIO N OF 1.98 LAKHS @ RS.,2/- PER SHARE. HOWEVER, THE AO DID NOT BELIEVE THE TRANSACTION AND WAS OF THE OPINION THAT SHARES MUST HAVE BEEN PURCHASED FOR RS. 5,98,000/- IN PLACE OF ACTUAL CONSIDERATION OF RS. 1,98,000/-, ACCORDINGLY, ADDIT ION OF RS. 4 LAKHS WAS MADE AS UNEXPLAINED INVESTMENT IN T HE SHARES. 10. BY THE IMPUGNED ORDER, THE LD. CIT(A) DELETED THE SAME AFTER HAVING FOLLOWING OBSERVATIONS :- -: 10: - 10 I HAVE CONSIDERED THE WRITTEN AS WELL AS ORAL SUBMISSIONS OF THE AR WITH REFERENCE TO THE ORDER OF THE AO. I FIND THERE IS NO EVIDENCE ON RECORD, WHICH MAY SUGGEST THAT THE ASSESSEE PAID ANY AMOUNT IN ADDITION TO RS. 1,98,000/- PAID THROUGH CHEQUES TO THE ORIGINAL SHARE HOLDERS. IN THESE CIRCUMSTANCES, I DONT FIND ANY JUSTIFICATION TO SUSTAIN THE ADDITION OF RS. 4,00,000/-. ACCORDINGLY, I DIRECT THE AO TO REMOVE THE ADDITION MADE AT RS. 4,00,000/-. THIS GROUND OF APPEAL IS ALLOWED. 11. THE REVENUE IS IN FURTHER APPEAL BEFORE US. 12. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND FOUND THAT THE COMPANY M/S. GTV WAS INCORPORATE D ON 4.12.1990. IT WAS NOT A PROFIT MAKING COMPANY AN D NO DIVIDEND WAS DECLARED TO THE SHAREHOLDER. IT CAME W ITH A PUBLIC ISSUE IN DECEMBER, 1996. IN THE ABSENCE OF A NY DIVIDEND BEING DECLARED BY THE COMPANY, THERE WAS N O -: 11: - 11 VALUE OF SHARES BEING QUOTED AT THE STOCK EXCHANGE. UNDER THESE CIRCUMSTANCES, THE ASSESSEE PURCHASED THE SHA RE OF RS. 10/- AT RS. 2/- PER SHARE. NEITHER ANY MATERIAL WAS FOUND DURING THE COURSE OF SEARCH TO INDICATE THAT THE ASSESSEE HAS MADE EXCESS PAYMENT FOR ACQUISITION OF SHARES. IN VIEW OF THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF K.P. VARGHESE, 131 ITR 597, NEGATIVE ONUS CANNOT BE CASTED UPON THE ASSESSEE TO PROVE WHAT HE HAS NOT DONE. THE LD. CIT(A) HAS ALSO DELETED THE ADDIT ION BY OBSERVING THAT THERE IS NO EVIDENCE ON RECORD, WHIC H MAY SUGGEST THAT THE ASSESSEE HAS PAID ANY AMOUNT IN AD DITION TO RS. 1,98,000/- PAID THROUGH CHEQUES. ACCORDINGLY , WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. C IT(A) FOR DELETING THE SAID ADDITION. 13. LAST GRIEVANCE OF THE REVENUE RELATES TO DELETION OF ADDITION ON ACCOUNT OF PREMIUM PAID FOR TAKING OVER OWNERSHIP AND MANAGEMENT OF M/S.CHIRCHIND HYDROPOWER PRIVATE LIMITED, AT A FACE VALUE OF 1,13 ,700 -: 12: - 12 SHARES @ RS. 10/- PER SHARE FOR RS. 11,37,000/- IN THE MONTH OF MARCH, 2005. THE AO STATED THAT THIS COMPA NY HAD MADE ADVANCE OF RS.28 LAKHS TO GRAM PRADHAN OF VILLAGE LUNA TAHSIL BHARMURE, DISTRICT CHAMBA, TO PROCURE THE PRIVATE LAND ON THE LEFT BANK OF THE ST REAM. HOWEVER, NO LAND COULD BE PURCHASED AND THE COMPANY GOT REFUND BACK OF THE AMOUNT SO ADVANCED FOR ACQUI RING LAND ON 15.3.2005. THIS REFUND WAS PRIOR TO PURCHAS E OF SHARES BY THE ASSESSEE IN THIS COMPANY. THUS, AT TH E TIME OF ACQUISITION OF SHARES OF M/S.CHIRCHIND HYDROPOWE R PRIVATE LIMITED, IT WAS NOT OWNING ANY LAND NOR ANY LICENCE WAS GRANTED TO IT FOR PRODUCTION OF HYDROPO WER. THE AO IN ITS ORDER U/S 153A OBSERVED THAT THIS COM PANY M/S.CHIRCHIND HYDROPOWER PRIVATE LIMITED ON A LICNE CE FOR PRODUCTION OF HYDRO POWER IN HIMACHAL PRADESH. HE WAS, THEREFORE, OF THE VIEW THAT THE ASSESSEE MUST HAVE PAID MUCH MORE PAYMENT FOR ACQUIRING ITS SHARES AND THE SHARES WERE NOT ACQUIRED @ RS. 10/- PER SHARE FOR G ETTING -: 13: - 13 CONTROL OVER THE COMPANY. HE, THEREFORE, ESTIMATED THAT THE ASSESSEE MUST HAVE PAID RS. 1 CRORE AS A PREMIU M TO PURCHASE THE SHARES OF OLD COMPANIES. ACCORDINGLY, THE SAME WAS ADDED IN THE INCOME OF THE ASSESSEE. 14. BY THE IMPUGNED ORDER, THE LD. CIT(A) DELETED THE ADDITION AFTER HAVING THE FOLLOWING :- I HAVE GONE THROUGH THE ASSESSMENT ORDER AS WELL AS THE WRITTEN AND ORAL SUBMISSIONS OF THE AR. I FIND THAT THE COMPANY M/S.CHIRCHIND HYDROPOWER LIMITED WAS INCORPORATED ON 4.8.2000. BUT IT DID NOT GET ANY LAND TILL THE ASSESSMENT YEAR 2005-06. IN FACT, LAND HAS BEEN OBTAINED FROM FOREST DEPARTMENT AFTER 31.3.2006. I ALSO UNDERSTAND THAT FOR THE INSTALLATION OF A FACTORY MANY PERMISSIONS FROM VARIOUS DEPARTMENT ARE TO BE OBTAINED. IT IS NOT CLEAR WHETHER SUCH PERMISSIONS CAN BE OBTAINED WITHOUT HAVING ANY LAND. I DO NOT THINK THAT THE -: 14: - 14 COMPANY HAVING NO LAND, FACTORY, ETC. CAN HAVE ANY PREMIUM. MOREOVER, THERE IS NO EVIDENCE THAT ANY PAYMENT IN EXCESS OF RS. 11,37,000/- WAS MADE TO THE ORIGINAL SHARE HOLDERS. IN THE CIRCUMSTANCES, I AM OF THE OPINION THAT THE HUGE ADDITION OF RS. 1 CRORE CANNOT BE MADE WITHOUT ANY EVIDENCE SIMPLY ON THE BASIS OF CONJECTURES AND SURMISES. ACCORDINGLY, I DELETE THE ADDITION OF RS. 1 CRORE. ACCORDINGLY, THE APPELLANT GETS THE RELIEF OF RS. 1 CRORE AND THIS GROUND STANDS ALLOWED. 15. AGGRIEVED BY THE SAME, THE REVENUE IS IN FURTHER APPEAL BEFORE US. 16. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND FOUND FROM THE RECORD THAT NEITHER ANY MATERIAL NOR ANY INCRIMINATING DOCUMENT WAS FOUND EITHER DURING THE COURSE OF SEARCH OR EVEN IN POST SEARCH INVESTIGATI ON TO INDICATE THAT THE ASSESSEE HAS PAID ANY PREMIUM OVE R AND ABOVE WHAT IS STATED IN THE BOOKS OF ACCOUNT FOR PU RCHASE -: 15: - 15 OF SHARES AND CONTROLLING INTEREST OVER M/S.CHIRCHI ND HYDROPOWER LIMITED. EVEN THE OBSERVATION OF THE AO THAT IT WAS HAVING LICENCE TO PRODUCE HYDRO POWER IS WIT HOUT ANY BASE. IN FACT, WHEN THE ASSESSEE ACQUIRED THE S HARES OF THIS COMPANY, IT HAD NO LAND NOR ANY LICENCE TO GENERATE HYDRO POWER AND NO PREMIUM OF ANY TYPE WAS PAID NOR THERE WAS ANY PERMISSION FROM DIFFERENT DEPARTMENTS , WHICH WAS NECESSARY FOR GENERATION TO HYDROPOWER. A T PAGE 5, THE LD. CIT(A) HAS RECORDED A CATEGORICAL F INDING TO THE EFFECT THAT M/S.CHIRCHIND HYDROPOWER LIMITED W AS INCORPORATED ON 4.8.2000 AND IT HAD NOT GOT ANY LAN D TILL THE ASSESSMENT YEAR 2005-06. IN FACT, THE LAND WAS OBTAINED FROM FOREST DEPARTMENT AFTER ASSESSEE ACQU IRED ITS SHARES. IN THESE CIRCUMSTANCES, THE LD. CIT(A) OBSERVED THAT A COMPANY HAVING NO LAND, FACTORY CAN HAVE ANY PREMIUM. IN VIEW OF THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF K.P. VARGHESE VS. CIT AS REPO RTED IN 131 ITR 597, THE DEPARTMENT CANNOT ASK THE ASSESSEE TO PROVE A NEGATIVE I.E. TO PROVE THAT IT HAS NOT PAID ANYTHING UNDER THE TABLE FOR ACQUIRING THE SHARES OF THE COM PANY. WHATEVER WAS PAID WAS CLEARLY INDICATED IN THE BOOK S OF ACCOUNT. ACCORDINGLY, WE DO NOT FIND ANY REASON TO INTERFERE IN THE FINDING OF THE LD. CIT(A) RESULTIN G INTO DELETION OF ADDITION MADE ON ACCOUNT OF HYPOTHETICA L -: 16: - 16 PREMIUM ALLEGED TO BE PAID BY THE ASSESSEE FOR ACQU IRING SHARES AND CONTROL OVER M/S.CHIRCHIND HYDROPOWER LIMITED. 17. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 30 TH NOVEMBER, 2010. SD/- SD/- (JOGINDER SINGH) ( R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 30 TH NOVEMBER,2010. CPU* 30