Shri Amitbhai Vasantlal Shah, Surat V. The Asstt. Commissioner of Income Tax, Central Circel-4, Surat

ITSSA 199/AHD/2017

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4694 (ITAT-SURAT)
• Duration Of Justice: 4 year(s) 4 month(s) 25 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 27-09-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 02-05-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: HIREN M DIWAN
• Keywords: Unexplained cash credit; Unexplained investment; Presumptive income; Capital asset; Gift; Business income; Business expenditure; Search and seizure; Loose papers; Earning of tax free income; Cost of acquisition; Block assessment; Onus to prove; TDS; Rule 8D; Set aside
• Section: 143(3); 153A; 14A; 143(1); 201; 143(2); 69A; 192; 64; 43; 48; 44DA; 73; 72; 13; 153; 22; 153C; 131; 68; 69; 132; 28; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRIPAWAN SINGH, JM &DR. A.L.SAINI, AM IT(SS)A NOS.197, 198, 199 &200/AHD/2017 (ASSESSMENT YEAR: (2009-10, 2011-12, 2012-13 & 2013-14) (VIRTUAL COURT HEARING) SHRI AMITBHAI VASANTLAL SHAH, C, GROUND FLOOR, RAVIJYOT APARTMENT, OPP. LOURDES CONVENT SCHOOL, ATHWALINES, SURAT-395007. VS. THE ACIT, CENTRAL CIRCLE-4, SURAT. ./ ./ PAN/GIR NO.: APXPS3632J (ASSESSEE) (RESPONDENT) ASSESSEE BY : SHRI HIREN M. DIWAN, CA REVENUE BY :SHRI RITESH MISHRA, CIT(DR) / DATE OF HEARING : 07/07/2021 /DATE OF PRONOUNCEMENT : 27/09/2021 / O R D E R PER DR. A. L. SAINI, ACCOUNTANT MEMBER: CAPTIONED FOUR APPEALS FILED BY THE ASSESSEE, PERTAINING TO ASSESSMENT YEARS (AY) 2009-10, 2011-12, 2012-13 AND 2013-14, ARE DIRECTED AGAINST THE SEPARATE ORDERS PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-4, SURAT [ IN SHORT THE LD. CIT(A) ],WHICH IN TURN ARISE OUT OF SEPARATE ASSESSMENT ORDERS PASSED BY THE ASSESSING OFFICER UNDER SECTION 144 R.W.S 153AOF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. SINCE, THE ISSUES INVOLVED IN ALL THE APPEALS ARE COMMON, IDENTICAL, THEREFORE THESE APPEALS HAVE BEEN HEARD TOGETHER AND ARE BEING DISPOSED OF BY THESE CONSOLIDATED ORDER. FOR THE SAKE OF CONVENIENCE, THE GROUNDS AS WELL AS FACTS NARRATED IN IT(SS)A NO.198/AHD/2017 FOR AY.2011-12, HAVE BEEN TAKEN INTO CONSIDERATION FOR DECIDING THESE APPEALS EN MASSE. 3.THESE FOUR APPEALS FILED BY THE ASSESSEE, CONTAIN COMMON GROUNDS OF APPEALS. AT THE TIME OF HEARINGS, WE HAVE CAREFULLY PERUSED ALL THE GROUNDS RAISED BY THE ASSESSEE. TO MEET THE END OF JUSTICE, WE CONFINE OURSELVES TO THE CORE OF THE PAGE | 2 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH CONTROVERSY AND MAIN GRIEVANCES OF THE ASSESSEE, THEREFORE WITH THIS BACKGROUND AND FOR THE SAKE OF CONVENIENCE, WE CONCISE THE GROUNDS RAISED BY THE ASSESSEE, IN THESE FOUR APPEALS, AS FOLLOWS: (1) THE LD CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF THE AO WHEREIN THE AO HAS TREATED THE SALE OF SHARES OF WIPRO LTD., AS BUSINESS INCOME INSTEAD OF TREATING THE CAPITAL GAIN, IN ABSENCE OF ANY INCRIMINATING MATERIAL. (I) ASSESSMENT YEAR 2009-10, RS.3,94,66,218/-(UNABATED ASSESSMENT) (II)ASSESSMENT YEAR 2011-12, RS.1,35,11,370/- (ABATED ASSESSMENT) (2) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING ADDITION UNDER SECTION 41(1) OF THE ACT. (I) FOR A.Y. 2011-12: ADDITION OF RS.41,25,000/- U/S 41(1) MADE BY AO IN ABSENCE OF ANY INCRIMINATING MATERIAL. LEARNED COUNSEL PRAYS THAT ASSESSMENT YEAR 2011-12 IS UNABATED ASSESSMENT, THEREFORE ADDITION SHOULD NOT BE MADE WITHOUT INCRIMINATING MATERIAL. (ABATED ASSESSMENT) (II)FOR A.Y. 2012-13: ADDITION OF RS.1,64,59,592/- U/S 41(1) MADE BY AO. THIS IS ABATED ASSESSMENT YEAR WHEREIN THE ASSESSING OFFICER CAN DO REGULAR SCRUTINY TO VERIFY THE ITEMS IN THE RETURN OF INCOME FILED BY THE ASSESSEE. (ABATED ASSESSMENT) (3) CIT(A) HAS NOT DECIDED GROUND NO.5 RAISED BY THE ASSESSEE DURING APPELLATE PROCEEDINGS: INCOME DISCLOSED DURING THE COURSE OF SEARCH TO THE TUNE OF RS.5,35,75,000/- SHOULD BE TREATED AS BUSINESS INCOME AND NOT INCOME FROM OTHER SOURCES. AO TREATED IT AS INCOME FROM OTHER SOURCES WHEREAS ASSESSEE CLAIMS THAT IT IS BUSINESS INCOME. (4) THE LD COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER OF MAKING DISALLOWANCES UNDER SECTION 14A OF THE ACT. (I) FOR AY.2012-13: AO MADE ADDITION OF RS.10,09,371/- U/S. 14A OF THE ACT. (ABATED ASSESSMENT) (II)FOR AY.2013-14: AO MADE ADDITION OF RS.6,62,609/- U/S 14A OF THE ACT.(ABATED ASSESSMENT) 4. NOW, WE SHALL TAKE SUMMARIZED AND CONCISE GROUND NO.1 WHICH IS REPRODUCED BELOW FOR READY REFERENCE: (1) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF THE AO WHEREIN THE AO HAS TREATED THE SALE OF SHARES OF WIPRO LTD., AS BUSINESS INCOME INSTEAD OF TREATING THE CAPITAL GAIN, IN ABSENCE OF ANY INCRIMINATING MATERIAL. PAGE | 3 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH (I) ASSESSMENT YEAR 2009-10, RS.3,94,66,218/-(UNABATED ASSESSMENT) (II)ASSESSMENT YEAR 2011-12, RS.1,35,11,370/-(ABATED ASSESSMENT) 5.AT THE OUTSET ITSELF, WE NOTE THAT THE ISSUES RAISED IN GROUND NO.1 ARE IDENTICAL AND SIMILAR TO THE CASE OF DAMINIBEN AMITBHAI SHAH IN IT(SS)A NOS. 192 TO 195/AHD/2017, ORDER DATED 31.08.2021WHEREIN, THE COORDINATE BENCH OF SURAT ITAT HAS ADJUDICATED THE IDENTICAL ISSUE AS FOLLOWS: 10. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RIVAL CONTENTION. WE HAVE PERUSED CASE FILE AS WELL AS PAPER BOOKS FURNISHED BY ASSESSEE WITH THE ABLE ASSISTANCE OF SHRI HIREN M.DIWAN- CA, REPRESENTING THE ASSESSEE AND SHRI S.T. BIDARI, LEARNED CIT(DR), REPRESENTING THE REVENUE. WE FIND THAT ONE KEY ISSUE ARISES FOR OUR APT ADJUDICATION IN THE INSTANT LIS, WHICH IS, WHETHER THE ASSESSING OFFICER HAS MADE ADDITION WITH AID OF INCRIMINATING MATERIAL OR NOT? IF THE ASSESSING OFFICER HAS MADE THE ADDITION WITH HELP OF INCRIMINATING MATERIAL, THEN ADDITION SO MADE BY HIM WOULD BE SUSTAINED IN CASE OF UNABATED ASSESSMENT. HOWEVER, IN CASE OF ABATED ASSESSMENT, THE ASSESSING OFFICER HAS RIGHT TO EXAMINE THE INCRIMINATING MATERIAL, AS WELL AS REGULAR ITEMS OF SCRUTINY ASSESSMENT. SECTION 153A OF THE ACT PROVIDES THE PROCEDURE FOR COMPLETION OF ASSESSMENT WHERE A SEARCH IS INITIATED UNDER SECTION 132 OR BOOKS OF ACCOUNT, OR OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UNDER SECTION 132A AFTER 31ST MAY, 2003. IN SUCH CASES, THE ASSESSING OFFICER SHALL ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FURNISH, WITHIN SUCH PERIOD AS MAY BE SPECIFIED IN THE NOTICE, RETURN OF INCOME IN RESPECT OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH WAS CONDUCTED UNDER SECTION 132 OR REQUISITION WAS MADE UNDER SECTION 132A OF THE ACT. THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME OF EACH OF THESE SIX ASSESSMENT YEARS. ASSESSMENT OR REASSESSMENT, IF ANY, RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SIX ASSESSMENT YEARS PENDING ON THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR REQUISITION UNDER SECTION 132A, AS THE CASE MAY BE, SHALL ABATE. WE NOTE THAT SECTION 153A STARTS WITH A NON-OBSTANTE CLAUSE RELATING TO NORMAL ASSESSMENT PROCEDURE COVERED BY SECTIONS 139, 147, 148, 149, 151 AND 153 IN RESPECT OF SEARCHES MADE AFTER 31ST MAY, 2003. THE SECTIONS, SO EXCLUDED, RELATE TO RETURNS, ASSESSMENT AND REASSESSMENT PROVISIONS. HOWEVER, THE PROVISIONS THAT ARE SAVED ARE THOSE UNDER SECTION 153B AND 153C, SO THAT THESE THREE SECTIONS 153A, 153B AND 153C ARE INTENDED TO BE A COMPLETE CODE FOR POST-SEARCH ASSESSMENTS. 11. WE NOTE THAT IN ASSESSEE`S CASE THE SEARCH WAS CONDUCTED ON 27.12.2012. SHRI HIREN M.DIWAN, LD COUNSEL, STATED THAT TIME LIMIT FOR ISSUANCE OF NOTICE U/S 143(2) OF THE ACT FOR THE ASSESSMENT YEAR 2009-10 IN RESPECT OF THE ORIGINAL RETURN FILED BY ASSESSEE HAD EXPIRED ON 30.9.2009 AND HENCE AS ON THE DATE OF SEARCH, THAT YEAR (I.E ASSESSMENT YEAR 2009-10) WOULD FALL UNDER THE CATEGORY OF UNABATED ASSESSMENT AND ASSESSMENT YEAR 2008-09 WOULD ALSO FALL UNDER THE CATEGORY OF UNABATED ASSESSMENT, HENCE THE INCOME ASSESSED ORIGINALLY THEREON COULD NOT BE DISTURBED UNLESS THERE IS ANY INCRIMINATING MATERIAL FOUND IN THE COURSE OF SEARCH RELATABLE TO THESE ASSESSMENT YEARS, 2008-09 AND 2009-10. IT WAS ARGUED BY SHRI DIWAN, THAT ADMITTEDLY NO INCRIMINATING MATERIALS WERE FOUND FOR ASSESSMENT PAGE | 4 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH YEARS 2008-09 AND 2009-10 IN THE COURSE OF SEARCH WITH REGARD TO SHARES OF M/S WIPRO LIMITED AND ACCORDINGLY HE PLEADED NOT TO DISTURB THE ORIGINALLY ASSESSED INCOME, WHICH IS SAME AS THE RETURNED INCOME. HOWEVER, WE NOTE THAT LD ASSESSING OFFICER DID NOT HEED TO THE CONTENTIONS OF THE LD COUNSEL AND PROCEEDED TO FRAME THE ASSESSMENTS U/S 153A R.W.S 144 OF THE ACT BY MAKING AN ADDITION TOWARDS LONG TERM CAPITAL GAIN IN RESPECT OF WIPRO SHARES UNDER THE HEAD BUSINESS INCOME, TREATING THE SALE OF WIPRO SHARES UNDER TRADING ACTIVITIES. WE NOTE THAT IT IS EVIDENT FROM THE ASSESSMENT ORDER THAT THERE IS NO WHISPER IN THE ASSESSMENT ORDER FRAMED BY THE ASSESSING OFFICER OF ANY INCRIMINATING MATERIAL WHICH CAME TO THE POSSESSION OF THE ASSESSING OFFICER TO MAKE THE ADDITION BASED ON THE INCRIMINATING MATERIAL. TO UNDERSTAND, WHETHER THE ASSESSING OFFICER HAS FRAMED THE ASSESSMENT ORDER BASED ON THE INCRIMINATING MATERIAL OR NOT, WE REPRODUCE HERE THE RELEVANT PART OF THE ASSESSMENT ORDER AS FOLLOWS: ASSESSEE HAS SHOWN THAT SHE IS ENGAGED IN BUSINESS OF SHARE TRADING & HAS FOLLOWING INVENTORIES & PURCHASE SALE ACTIVITIES IN SHARE TRADING. SHE HAS SHOWN FOLLOWING INVENTORIES & ACTIVITIES IN SHARE TRADING; OPENING VALUE OF SHARES HELD RS 3,85,03,334 CLOSING VALUE OF SHARES HELD RS. 4,69,16,053 CLOSING STOCK SHOWN FOR EARLIER YEARS IS RS 3,83,89,634 DIFFERENCE OF OPENING STOCK RS 1,13,700 PURCHASE OF SHARES RS 52,40,72,212 SALES OF SHARES RS 53,14,26,745 LOSS ON SECURITIES CHARGEABLE TO STT (-) 1,56,13,207 ANY OTHER INCOME RS. 55,385 GROSS LOSS (-)6,30,660 P & L ACCOUNT GROSS LOSS ( - )6,30,660 INTEREST EXPENSES CLAIMED RS 63,43,408 DIVIDEND RECEIPT FROM SHARES : CLAIMED EXEMPT U/S 10(34) RS 24,73,689 NET LOSS SHOWN BY YOU RS( - ) 69,74,068 IN ADDITION TO THIS, PERUSAL OF THE BALANCE SHEET SHOWS ASSESSEE SHOWING A SEPARATE HEAD IN THE BALANCE SHEET I.E. INVESTMENT & SHOWN FOLLOWING ENTRIES UNDER IT; INVESTMENTS ICICI BONDS 935 INVESTMENT IN SHARES 6,03,002 UTI US - 64 10,21,950 INVESTMENT IN KOTAK MUTUAL FUND 28,251 INVESTMENT SOLD DURING THE YEAR (A.Y 2008-09) INVESTMENT IN KOTAK MUTUAL FUND(LIFESTYLE) 20,00,000 PAGE | 5 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH INVESTMENT CHANGED FROM INVESTMENT TO THE OPENING BUSINESS STOCK DURING THE YEAR (A.Y 2008-09) SHARES JMC 1,00,000 SHARE IN TATA TELE SERVICES 34,000 PERUSAL OF BANK STATEMENT SHOWS THAT ASSESSEE IS DOING TRADING IN SHARES & DERIVATIVE BY TAKING PROFESSIONAL PORTFOLIO MANAGEMENT SERVICES LIKE I) R.WADILAL & CO. II) CONCEPT SECURITIES PVT. LTD, III) KOTAK SECURITIES (FUTURES) IV) A.V INVESTMENT V) IL&FS INVESTMENT LTD VI) JAI SHARE FINANCE LTD VII) KOTAK SECURITIES (NSE) VIII) NETWORTH STOCK BROKING IX) KOTAK SECURITIES (BSE) X) PRABHUDAS LILADHAR PVT LTD IT APPARENTLY LOOKS THAT ASSESSEE HAS LOT TO HIDE & IN SPITE OF GIVING FAIR AMOUNT OF OPPORTUNITY HAS NOT FILED ANY DETAILS OF ANY LEDGER OR THE CONTRACT NOTE OR DETAILS OF OPENING STOCK PURCHASE SALE DETAILS OF SHARED & DETAILS OF CLOSING STOCKS OF SHARES OF ANY OF THE PARTIES MENTIONED ABOVE . D) ANALYSIS OF SUNDRY CREDITORS & DEBTOR; NAME OF THE CREDITORS (RELATED TO SHARES TRADE) AMOUNT OUTSTANDING NAME OF THE DEBTORS (RELATED TO SHARES TRADE) AMOUNT OUTSTANDING KOTAK INFINITY PMS 548 A.V INVESTMENT 7,45,667 KOTAK SECURITIES (NSE) 1,010 IL&FS INVESTMENT LTD 40,924 RIGHT FINSTOCK PVT LTD 1,41,698 JAI SHARE FINANCE LTD 6,00,489 IL&FS INVESTMENT LTDNSE 3,086 CONCEPT SECURITIES PVT LTD 1,19,431 NETWORTH STOCK BROKING 258 PRABHUDAS LILADHAR PVT LTD NIL R WADIWALA & CO(BSE) 4,247 R WADIWALA & CO(NSE) NIL ASSESSEE HAS FAILED TO SUBMIT ANY CONFIRMATION OF ACCOUNTS & DETAILS FROM ANY OF THE SUNDRY CREDITORS & DEBTORS SHOWN BY HER ABOVE. PERUSAL OF THE DETAILS FILED, WITH MEHUL SHAH BRINGS FORTH FOLLOWING FACTS : I) THE EARLIER RECORDS FILED FOR SHOWING THE EVIDENCE OF CARRY FORWARD LOSSES SHOWS THAT ASSESSEE IS IN SHARE TRADING BUSINESS FOR MORE THAN 5 YEARS IN PAST & WAS TREATING THE SHARE TRADING, DERIVATIVE TRADING & COMMODITY TRADING AS A BUSINESS ACTIVITY MERGED TOGETHER FROM AT LEAST AS EARLY AS 2003-04 & MAY BE MUCH EARLY. II) THE PLEDGING EVIDENCE OF BUSINESS STOCK SHOWS INDIRECT EVIDENCE THAT; ASSESSEE IS HAVING MULTIPLE DMAT A/C IN DIFFERENT BANKS LINKED WITH VARIOUS BANK ACCOUNTS. III) IN ADDITION TO SELF- TRADING, ASSESSEE IS ALSO DOING TRADING BY TAKING PROFESSIONAL PORTFOLIO MANAGEMENT SERVICES LIKE R. WADILAL & CO, CONCEPT SECURITIES, KOTAK MAHINDRA BANK & OTHERS. IV) AS PER THE MEHUL SHAH, ASSESSEE KEEPS CHANGING DMAT ACCOUNT BY INTER-TRANSFERRING THE SHARE FROM ONE DMAT A/C TO OTHERS INCLUDING THE SHARES OF WIPRO LTD WITH OTHER SHARES, SO UNABLE TO KEEP A TRAIL & EVIDENCE OF THE PURCHASE OF THE SHARES. V) THE ASSESSEE HAS NO RECORDS OF MAINTAINING DISTINCTION IN SHARES WHICH ARE AS CAPITAL INVESTMENT & SHARES KEPT AS BUSINESS STOCK. NO SEPARATE DMAT A/C IS MAINTAINED FOR DISTINCTION IN SHARES WHICH ARE AS CAPITAL INVESTMENT & SHARES KEPT AS BUSINESS STOCK. PAGE | 6 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH VI) MOST OF THE SHARES IN THE DMAT ACCOUNTS OF ANY & EVERY PERIOD REPRESENTED IN THE D MATA/C ARE PLEDGED TO THE BANK TO OBTAIN LOAN FOR DOING BUSINESS IN TRADING OF SHARES, DERIVATIVES THROUGH PROFESSIONAL MANAGERS . VII) THE WIPRO SHARES ARE ALSO PLEDGED WITH OTHER SHARE TO TAKE BUSINESS LOAN FOR DOING BUSINESS IN TRADING OF SHARES, DERIVATIVES BY PROFESSIONAL MANAGERS. VIII)THE LOANS ON THESE PLEDGED SHARE OF BUSINESS SHARE STOCKS, INCLUDING WIPRO LTD ARE BEARING INTEREST COST. ALL THE COST OF INTEREST ARE BOOKED AS BUSINESS EXPENSES. IX) THERE IS NO DIFFERENTIATION IN THE CAPITAL STOCK & BUSINESS STOCK. X) ASSESSEE HAS FAILED TO SUBMIT ANY CONFIRMATION OF ACCOUNTS & DETAILS FROM ANY OF THE SUNDRY CREDITORS & DEBTORS SHOWN BY HIM ABOVE. XI) ASSESSEE HAS FAILED TO SUBMIT ANY BANK SOURCE TO EXPLAIN THE DETAILS & SOURCE OF PURCHASE & SALES EVIDENCE W.R.T THE SHARE TRADING ACTIVITY. SINCE THE SUBMISSION IS SO INCOMPLETE THAT THE NEITHER ANY SALES, NOR ANY PURCHASES ARE VERIFIABLE THROUGH EITHER THE BANK ACCOUNT OR DMAT A/C. MEHUL SHAH, A.R. IS HEREWITH GIVEN LAST & FINAL OPPORTUNITY TO FILE FULL DETAILS, ALL DEMAT A/C, DETAILS OF HOLDINGS OF OPENING STOCK & CLOSING STOCK FAILING WHICH ORDER SHALL BE PROCEEDED U/S 144 AS A BEST JUDGMENT ASSESSMENT. EXEMPT LONG TERM CAPITAL GAIN U/S 10(38) OF I.T ACT; I) ASSESSEE HAS CLAIMED EXEMPT INCOME U/S 10(38) OF I.T ACT FOR RS 1,16,95,001 ON SALE OF 30,032 SHARES OF WIPRO IN THE HAND OF DAMINI SHAH. THE SALE SHOWN BY DAMINI SHAH ON ACCOUNT OF THE EXEMPT LTCG IS DETAILED BELOW: SHARES DATE OF SALE NO OF SHARES TOTAL VALUE DATE OF PURCHASE PURCHASE VALUE RATE OF PURCHASE SHOWN PROFIT & LOSS DEDUCTION FROM THE INVESTMENT IN SHARE I BALANCE SHEET 22-01- 08 10,000 39,88,764 VERY OLD 1,00,000 @10 38,88,764 NIL WIPRO LTD 22-01- 08 20,000 79,92,470 VERY. OLD 2,00,000 @10 77,92,470 NIL 28-03- 08 32 14,087 VERY OLD 320 @10 13,767 NIL 1,16,95,001 THE ASSESSEE IS NOT ABLE TO GIVE DETAILS OF OPENINGS STOCK OF WIPRO LTD & HAS NO EVIDENCE OF TRANSFER OF GIFTED WIPRO SHARES THROUGH. (II) IT IS PECULIAR TO NOTE THAT ASSESSEE' HAS SHOWN OPENING BALANCE OF INVESTMENT IN SHARE OF RS 6,03,002/- WITHOUT GIVING ANY DETAILS OR BIFURCATIONS OF THE HOLDING OF SHARES IN THE CAPITAL INVESTMENT ACCOUNT. INVESTMENTS OPENING BALANCE CLOSING BALANCE INVESTMENT IN SHARES 6,03,002 6,03,002 THUS, THOUGH THE ASSESSEE HAS ASSIGNED THE COST OF ACQUISITION OF SHARES AGAINST EXPENSES BUT NO DELETION OF SHARES ARE SHOWN FROM THE CAPITAL INVESTMENT OF SHARES THUS FILING A CLEAR EVIDENCE THAT THE SOLD SHARES ARE NOT IN FROM CAPITAL INVESTMENT OF SHARES. (III) ASSESSEE HAS BEEN DOING SAME ACTIVITY FOR BUSINESS AND CAPITAL INVESTMENT & HAS SHOWN HUGE EXEMPTION ON THE SHARES SALE U/S 10(38) OF THE I.T. ACT & HUGE LOSS ON ACCOUNT OF BUSINESS LOSS ON SAME SET OF ACTIVITY I.E SHARE TRADING ACTIVITY. PAGE | 7 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH (IV) THE SOLD WIPRO LTD SHARE HAS A FACE VALUE OF RS 2 IS SHOWN AS COST OF RS 10 PER SHARE IN THE COMPUTATION. THERE IS NO EVIDENCE & REASONS EXPLAINED HOW THIS RS 10 PER SHARE S ARRIVED. TO FIND OUT, WHAT DIFFERENTIATION IS MAINTAINED BY THE ASSESSEE BETWEEN BUSINESS STOCK & CAPITAL STOCK, ASSESSEE WAS ASKED VIA Q 9 (A) , (B) & (D) BY QUESTIONNAIRE DATED 13-02-2015 TO FILE FOLLOWING DETAILS W.R.T T HIS SHARE TRADING ACTIVITY : Q 9 (A) D MAT A/C WISE STATEMENT OF (I)OPENING BALANCE OF SHARE WITH RATE ASSIGNED FOR STOCK OPENING VALUE, (II)CLOSING BALANCE OF SHARES WITH RATE ASSIGNED FOR STOCK CLOSING VALUE, (III)DETAILS OF PURCHASE & SALE DONE WITH RATE, PROFIT/LOSS W.R.T EACH D MAT A/C WISE STATEMENT. Q 9 (B) GIVE SEPARATE CONSOLIDATED PORTION OF SHARES WITH SHOWING D MAT WISE POSITION & GIVE:- (I)OPENING BALANCE OF SHARE WITH RATE ASSIGNED FOR STOCK OPENING VALUE, (II) CLOSING BALANCE OF SHARES WITH RATE ASSIGNED FOR STOCK CLOSING VALUE, (III)DETAILS OF PURCHASE & SALE DONE WITH RATE, PROFIT/LOSS WITH CONSOLIDATED STATEMENT. Q 9 (D) FILE DETAILS OF COMPANY FROM WHICH YOU HAVE EARNED DIVIDEND INCOME & GIVE DEMAT A/C WISE HOLDING DETAILS OF SUCH SHARES. PERUSAL OF THE DETAILS FILED, WITH MEHUL SHAH BRINGS FORTH FOLLOWING FACTS; A) THE EARLIER RECORDS FILED FOR SHOWING THE EVIDENCE OF CARRY FORWARD LOSSES SHOWS THAT ASSESSEE IS IN SHARE TRADING BUSINESS FOR MORE THAN 5 YEARS IN PAST & WAS TREATING THE SHARE TRADING, DERIVATIVE TRADING & COMMODITY TRADING AS A BUSINESS ACTIVITY MERGED TOGETHER FROM AT LEAST AS EARLY AS 2003-04 & MAY BE MUCH EARLY . B) ASSESSEE IS HAVING MULTIPLE DEMAT A/C IN DIFFERENT BANKS LINKED WITH VARIOUS BANK ACCOUNTS. C) IN ADDITION TO SELF-TRADING, ASSESSEE IS ALSO DOING TRADING BY TAKING PROFESSIONAL SELF- TRADING, ASSESSEE MANAGEMENT SERVICES LIKE R. WADILAL & CO, CONCEPT SECURITIES , KOTAK MAHIN DRA & OTHERS. D) AS PER THE MEHUL SHAH, ASSESSEE KEEPS CHANGING DEMAT ACCOUNT BY INTER-TRANSFERRING THE SHARE FROM ONE DMAT A/C TO OTHERS. E) THE ASSESSEE HAS NO RECORDS OF MAINTAINING DISTINCTION IN SHARES WHICH ARE AS CAPITAL INVESTMENT & SHARES KEPT AS BUSINESS STOCK . NO SEPARATE DMAT A/C IS MAINTAINED FOR DISTINCTION IN SHARES WHICH ARE AS CAPITAL INVESTMENT & SHARES KEPT AS BUSINESS STOCK. THE ONLY DISTINCTION SHOWN BY THE ASSESSEE BETWEEN CAPITAL INVESTMENT & BUSINESS STOCK IS AN AFFIDAVIT GIVEN BY BINDIBEN, WHICH STATES THAT SHE HAS MADE FOLLOWING GIFT I X OF SHARES OF WIPRO LTD . DATE OF GIFT NO OF WIPRO SHARES GIFTED BY DEMAT A/C THE PERSON TO WHOM GIFTED DEMAT A/C IN WHICH SHARES DEPOSITED AFFIDAVIT MADE IN 1999 NO DATES GIVEN 8000 (IN 1999) DEMAT A/C SB 19445 OF UTI BANK AMIT V SHAH NOT GIVEN NO DATES GIVEN 7700 (IN 1999) DEMAT A/C SB 19445 OF UTI BANK DAMINI AMIT SHAH NOT GIVEN ASSESSEE PRODUCED COPY OF ONLY THREE DMAT A/C STATEMENT BELONGING TO AXIS BANK. CLIENT ID AS PER DMAT BANK ASSOCIATED WITH DMAT NAME OF THE A/C HOLDER PERIOD OF DEMAT HOLDING GIVEN DETAILS OF TRANSACTION PERTAINING TO A.Y 2008-09 10061659 AXIS BANK (D.P ID: IN 300484) DAMINI AMIT SHAH & AMIT V SHAH COMBINED STATEMENT FROM 01 JAN 1997 -23 FEB2015 PLEDGING CANCELLATION OF 15000 SHARES OF WIPRO LTD & PLEDGE OF 7500 WIPRO SHARES 14037536 AXIS BANK (D.PID :IN 300484) DAMINI AMIT SHAH , AMIT VASANT SHALL, BHAVDEEP COMBINED STATEMENT FROM 01 APRIL 2000 -18 FEB2015 NIL TRANSACTION PERTAINING TO A.Y 2008-09 PAGE | 8 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH SHAH 1077474 AXIS BANK (D. PID ,;IN 300484) DAMINI AMIT SHAH , AMIT VASANT SHAH COMBINED STATEMENT FROM 01 APRIL 2000 -18 FEB2015 NIL TRANSACTION PERTAINING TO A.Y 2008-09 PERUSAL OF THE DMAT A/C SUBMITTED SHOWS FOLLOWING: I) NONE OF THE D MAT SHOWS THE DETAILS OF OPENING STOCK OF SHARE SHOWN TO BE HELD AS ON 01-04- 2007. II) NONE OF THE D MAT SHOWS THE DETAILS OF OPENING STOCK OF SHARE SHOWN TO BE HELD AS ON 3 1-03- 2008. III) NONE OF THE D MAT A/C PRESENTED SHOWS THE DETAILS OF ANY OF THE PURCHASES OR SALES OF SHARE THROUGH THE DMAT A/C PRESENTED, WHICH IS STATED TO BE SOLD DURING THE YEAR I.E A.Y 2008-2009, BUT THESE SHARES BALANCES ARE NOT REFLECTED IN THE DMAT A/C SUBMITTED. IV) THE OPENING STOCK, PURCHASES OF SHARES SHOWN IN THE PROFIT WORKING OF SHARE &CLOSING STOCK SHOWS MULTIPLICITY OF SHARES PURCHASED IN F.Y 2004, 2005 , 2006. V) THE SHARES OF WIPRO LTD WHICH IS STATED TO HAVE RECEIVED AS GIFT IS ALSO NOT REFLECTED IN THE DMAT STATEMENT SUBMITTED, IN SPITE OF THE FACT THAT DEMAT ACCOUNT PERTAINS TO PERIOD FROM 1997 & 2000. VI) THE SHARES OF WIPRO LTD IS SEEN TO HAVE PLEDGED IN THE DMAT A/C FOR LOAN BUT ON CANCELLATION OF PLEDGED WIPRO LTD, THE SHARE DO NOT COMES IN THE DMAT STATEMENT. VII) THERE IS EXISTENCE OF JOINT A/C ACCOUNT IN EXISTENCE, WHICH SHOWS THERE IS NO DEMARCATION OF ASSETS AMONG INDIVIDUAL & DIFFERENTIATION OF STOCKS BETWEEN INDIVIDUALS . VIII) AS PER THE CLIENT ID 10061659 IN AXIS BANK HELD JOINTLY IN THE NAME OF DAMINI AMIT SHAH & AMIT VASANT SHAH, 2,500 SHARE OF WIPRO LOOKS TO BE PLEDGED WITH AXIS BANK FOR LOAN IN PERIOD A.Y 2007-08 , WHICH EVEN ON REMOVING OF PLEDGE , THE SHARES DO NOT GETS CREDITED IN AXIS BANK. IX) WIPRO SHARES WITH BUSINESS STOCKS ARE USED FOR THE BUSINESS PURPOSE TO GET SECURED LOANS OF RS 2,21,78,3 17/- AND UNSECURED LOAN OF RS 1,84,24,550/-. THE INTEREST EXPENSES ARE CLAIMED AS BUSINESS EXPENSES; - INTEREST TO KOTAK OF RS 38,37,172 /- - INTEREST TO J M FINANCE OF RS 18,51,642/- - BANK INTEREST OF RS 6,54,594/- SINCE THE SUBMISSION IS SO INCOMPLETE THAT THE NEITHER ANY SALES, NOR ANY PURCHASES ARE VERIFIABLE THROUGH EITHER THE BANK ACCOUNT OR DMAT A/C. ASSESSEE HAS FAILED TO FILE DETAILS IN-SPITE OF MANY OPPORTUNITY PROVIDED TO HIM TO FILE DETAILS. NO SALES, PURCHASE, OPENING STOCK OR CLOSING STOCK OF SHARES COULD BE TALLIED WITH DEMAT A/C SUBMITTED. UNDER THESE CIRCUMSTANCES, THE ASSESSMENT IS COMPLETED AS BEST JUDGMENT ASSESSMENT U/S 144 OF I.T ACT . IN LIGHT OF ABOVE FACT & CASE, THE ASSESSEES CLAIM OF EXEMPT INCOME U/S. 10(38) SHOWN AS L.T.C.G. IS REJECTED & THE SALE IS TREATED AS SALE OF BUSINESS STOCK & NET GAIN IS TREATED AS INCOME FROM BUSINESS ACTIVITY. THE NET PROFIT CLAIMED OF RS.1,16,95,001/- IS TREATED AS PART OF BUSINESS PROFIT. 12. WE HAVE GONE THROUGH THE ABOVE ASSESSMENT ORDER FRAMED BY THE ASSESSING OFFICER AND NOTICED THAT ASSESSING OFFICER HAS NOT MADE THE ADDITION OF RS. 1,16,95,001/- BASED ON THE INCRIMINATING MATERIAL. THUS, WE NOTE THAT IN CASE OF UNABATED ASSESSMENT YEARS, NAMELY A.YS: 2008-09 AND 2009-10, THE ADDITIONS, IF ANY, CAN BE MADE BY ASSESSING OFFICER WITH THE AID OF INCRIMINATING MATERIAL ONLY. 13. AT THIS JUNCTURE, WE ARE OF THE VIEW THAT IT WOULD BE NECESSARY TO ADDRESS THE PRELIMINARY ISSUE OF WHETHER THE ADDITION COULD BE FRAMED U/S 153A OF THE ACT IN RESPECT OF A CONCLUDED PROCEEDING WITHOUT THE EXISTENCE OF ANY INCRIMINATING MATERIALS FOUND IN THE COURSE OF SEARCH. THE SCHEME OF THE ACT PROVIDES FOR ABATEMENT OF PENDING PROCEEDINGS AS ON THE DATE OF SEARCH. IT IS NOT IN DISPUTE THAT THE ASSESSMENTS FOR THE ASSESSMENT YEARS 2008-09 AND 2009-10, FALL UNDER CONCLUDED PROCEEDING, AS ON THE DATE OF SEARCH ON 27.12.2012. WE HOLD THAT THE LEGISLATURE DOES NOT DIFFERENTIATE WHETHER THE ASSESSMENTS ORIGINALLY WERE FRAMED U/S 143(1) OR 143(3) OR 147 OF THE ACT. HENCE UNLESS THERE IS ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH RELATABLE TO SUCH CONCLUDED ASSESSMENT YEARS, THE STATUTE DOES NOT CONFER ANY POWER ON THE ASSESSING OFFICER TO DISTURB PAGE | 9 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH THE FINDINGS GIVEN THEREON AND INCOME DETERMINED THEREON, AS FINALITY HAD ALREADY BEEN REACHED THEREON, AND SUCH PROCEEDINGS WERE NOT PENDING ON THE DATE OF SEARCH TO GET ITSELF ABATED. THE PROVISIONS OF SECTION 153A OF THE ACT ARE REPRODUCED HEREUNDER FOR THE SAKE OF CONVENIENCE :- '[ASSESSMENT IN CASE OF SEARCH OR REQUISITION 153A. [(1)] NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 153, IN THE CASE OF A PERSON WHERE A SEARCH IS INITIATED UNDER SECTION 132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UNDER SECTION 132A AFTER THE 31ST DAY OF MAY, 2003, THE ASSESSING OFFICER SHALL (A) ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FURNISH WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, THE RETURN OF INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE (B), IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED AND THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APPLY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139; (B) ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE : PROVIDED THAT THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SUCH SIX ASSESSMENT YEARS:' 14. WE FIND THAT THE CO-ORDINATE BENCH OF DELHI TRIBUNAL IN THE CASE OF DY. CIT V. AGGARWAL ENTERTAINMENT (P.) LTD REPORTED IN [2016] 72 TAXMANN.COM 340 (DELHI - TRIB.) HAD ADDRESSED THIS ASPECT. THE RELEVANT HEADNOTES IS REPRODUCED BELOW: 'SECTION 153A, READ WITH SECTION 143, OF THE INCOME-TAX ACT, 1961-SEARCH AND SEIZURE - ASSESSMENT IN CASE OF (IN CASE OF SECTION 143(1) ASSESSMENT)- ASSESSMENT YEAR 2004-05- WHETHER ASSESSMENT IN RESPECT OF WHICH RETURN HAS BEEN PROCESSED UNDER SECTION 143(1), CANNOT BE REGARDED AS PENDING FOR PURPOSE OF SECTION 153A AS ASSESSING OFFICER IS NOT REQUIRED TO DO ANYTHING FURTHER ABOUT SUCH A RETURN AND, THUS, SAID ASSESSMENT CANNOT BE REOPENED IN EXERCISE OF POWER OF SECTION 153A-HELD YES (PARAS 10 AND 12) (IN FAVOUR OF ASSESSEE).' 15. WE FIND THAT THE CO-ORDINATE BENCH OF ITAT KOLKATA IN THE CASE OF ACIT VS KANCHAN OIL INDUSTRIES LTD IN ITA NO. 725/KOL/2011 DATED 9.12.2015 REPORTED IN 2016-TIOL-167-ITAT-KOL HAD EXPLAINED THE AFORESAID PROVISIONS AS BELOW:- '6.4 IN OUR OPINION, THE SCHEME OF ASSESSMENT PROCEEDINGS SHOULD BE UNDERSTOOD IN THE FOLLOWING MANNER PURSUANT TO THE SEARCH CONDUCTED U/S 132 OF THE ACT :- (A) NOTICE U/S 153A OF THE ACT WOULD BE ISSUED ON THE PERSON ON WHOM THE WARRANT OF AUTHORIZATION U/S 132 OF THE ACT WAS ISSUED FOR THE SIX ASSESSMENT YEARS PRECEDING THE YEAR OF SEARCH AND ASSESSMENTS THEREON WOULD BE COMPLETED U/S. 153A OF THE ACT FOR THOSE SIX ASSESSMENT YEARS. PAGE | 10 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH (B) IN RESPECT OF THE YEAR OF SEARCH, NOTICE U/S 143(2) OF THE ACT WOULD BE ISSUED AND ASSESSMENT THEREON WOULD BE COMPLETED U/S. 143(3) OF THE ACT. (C) IN RESPECT OF CONCLUDED ASSESSMENTS PRIOR TO THE YEAR OF SEARCH, NO ADDITION COULD BE MADE IN THE RELEVANT ASSESSMENT YEAR UNLESS ANY INCRIMINATING MATERIAL IS FOUND DURING THE COURSE OF SEARCH WITH RESPECT TO THE RELEVANT ASSESSMENT YEAR. (D) PURSUANT TO THE SEARCH U/S132 OF THE ACT, THE PENDING PROCEEDINGS WOULD GET ABATED. IN RESPECT OF ABATED ASSESSMENTS, THE TOTAL INCOME NEEDS TO BE DETERMINED AFRESH IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A AND OTHER PROVISIONS OF THE ACT. 6.4.1 THE CONCLUDED ASSESSMENTS FOR THE PURPOSE OF SECTION 153A OF THE ACT SHALL BE - (I) ASSESSMENT YEARS WHERE ASSESSMENTS ARE ALREADY COMPLETED U/S 143(1) AND TIME LIMIT FOR ISSUANCE OF NOTICE U/S 143(2) OF THE ACT HAS EXPIRED OR; (II) ASSESSMENT YEARS WHERE ASSESSMENTS ARE ALREADY COMPLETED U/S 143(3) OF THE ACT ; UNLESS THEY ARE REOPENED U/S 147 OF THE ACT FOR SOME OTHER PURPOSE IN BOTH THE SCENARIOS STATED ABOVE. 6.4.2 THE SCHEME OF ASSESSMENT PROCEEDINGS CONTEMPLATED U/S 153A OF THE ACT ARE TOTALLY DIFFERENT AND DISTINCT FROM THE PROCEEDINGS CONTEMPLATED U/S 147 OF THE ACT AND THESE PROCEDURES OF ASSESSMENT OPERATE IN DIFFERENT FIELDS AND HAVE DIFFERENT PURPOSES TO BE FULFILLED ALTOGETHER. 6.4.3 THE EXPRESSION 'ASSESS OR REASSESS' STATED IN SECTION 153A(1)(B) HAS TO BE UNDERSTOOD AS BELOW:- 'ASSESS' MEANS ASSESSMENTS TO BE FRAMED IN RESPECT OF ABATED ASSESSMENT YEARS IRRESPECTIVE OF THE FACT WHETHER THERE ARE ANY INCRIMINATING MATERIALS FOUND DURING THE COURSE OF SEARCH WITH RESPECT TO RELEVANT ASSESSMENT YEARS ; 'REASSESS' MEANS ASSESSMENTS TO BE FRAMED IN RESPECT OF CONCLUDED ASSESSMENT YEARS WHERE INCRIMINATING MATERIALS WERE FOUND DURING THE COURSE OF SEARCH IN RESPECT OF THE RELEVANT ASSESSMENT YEAR.' 16. WE ALSO FIND THAT HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS KABUL CHAWLA REPORTED IN (2016) 380 ITR 573 (DEL) HELD AS UNDER:- '37. ON A CONSPECTUS OF SECTION 153A(1) OF THE ACT, READ WITH THE PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLAINED IN THE AFOREMENTIONED DECISIONS, THE LEGAL POSITION THAT EMERGES IS AS UNDER: (I) ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF THE ACT, NOTICE UNDER SECTION 153A(1) WILL HAVE TO BE MANDATORILY ISSUED TO THE PERSON SEARCHED REQUIRING HIM TO FILE RETURNS FOR SIX AYS IMMEDIATELY PRECEDING THE PREVIOUS YEAR RELEVANT TO THE AY IN WHICH THE SEARCH TAKES PLACE. PAGE | 11 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH (II) ASSESSMENTS AND REASSESSMENTS PENDING ON THE DATE OF THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH AYS WILL HAVE TO BE COMPUTED BY THE LD AOS AS A FRESH EXERCISE. (III) THE LD AO WILL EXERCISE NORMAL ASSESSMENT POWERS IN RESPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT AY IN WHICH THE SEARCH TAKES PLACE. THE LD AO HAS THE POWER TO ASSESS AND REASSESS THE 'TOTAL INCOME' OF THE AFOREMENTIONED SIX YEARS IN SEPARATE ASSESSMENT ORDERS FOR EACH OF THE SIX YEARS. IN OTHER WORDS THERE WILL BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX AYS 'IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX'. (IV) ALTHOUGH SECTION 153A DOES NOT SAY THAT ADDITIONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SEARCH, OR OTHER POST-SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE LD AO WHICH CAN BE RELATED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THAT THE ASSESSMENT 'CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS SECTION ONLY ON THE BASIS OF SEIZED MATERIAL.' (V) IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMENT CAN BE MADE. THE WORD 'ASSESS' IN SECTION 153 A IS RELATABLE TO ABATED PROCEEDINGS (I.E. THOSE PENDING ON THE DATE OF SEARCH) AND THE WORD 'REASSESS' TO COMPLETE ASSESSMENT PROCEEDINGS. (VI) INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, THE JURISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UNDER SECTION 153A MERGES INTO ONE. ONLY ONE ASSESSMENT SHALL BE MADE SEPARATELY FOR EACH AY ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER MATERIAL EXISTING OR BROUGHT ON THE RECORD OF THE LD AO. (VII) COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE LD AO WHILE MAKING THE ASSESSMENT UNDER SECTION 153A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS OR UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT.' 17. IT IS ABUNDANTLY CLEAR FROM THE BARE PROVISIONS OF THE ACT AND LEGAL PRECEDENTS CITED ABOVE THAT ASSESSING OFFICER CAN MAKE ADDITION IN CASE OF UNABATED ASSESSMENTS PROVIDED THERE IS AN INCRIMINATING MATERIAL UNEARTHED BY SEARCH TEAM. WE OBSERVE THAT ASSESSING OFFICER DID NOT REFER ANY INCRIMINATING MATERIAL FOR THE ASSESSMENT YEARS 2008-09 AND 2009-10, AND WE NOTE THAT THESE ASSESSMENT YEARS FALL UNDER CONCLUDED PROCEEDING, THAT IS, UNABATED ASSESSMENTS, AS ON THE DATE OF SEARCH ON 27.12.2012, THEREFORE THE SAID ASSESSMENTS ALREADY STOOD COMPLETED. SINCE NO INCRIMINATING MATERIAL WAS UNEARTHED DURING THE SEARCH, NO ADDITIONS COULD HAVE BEEN MADE TO THE INCOME ALREADY ASSESSED IN THESE ASSESSMENT YEARS. WE ALSO NOTE THAT BEFORE LD CIT(A), DURING THE APPELLATE PROCEEDINGS, NEITHER ASSESSEE NOR DEPARTMENT HAS PRODUCED ANY INCRIMINATING MATERIAL. THE LD CIT(A) HAS ADJUDICATED THE ISSUE BASED ON THE FINDINGS OF THE ASSESSMENT ORDER. AS WE PAGE | 12 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH HAVE NOTED IN OUR EARLIER PARA THAT THERE IS NO WHISPER IN THE ASSESSMENT ORDER, SO FAR INCRIMINATING MATERIAL IS CONCERNED, THEREFORE, THE ADJUDICATION IN THE IMPUGNED ORDER OF LD CIT(A) IS NOT BASED ON INCRIMINATING MATERIAL. HENCE, WE DELETE THE ADDITION OF RS.1,16,95,001/- (AY 2008-09) AND RS.91,51,535/- (AY 2009- 10). 18. NOW, WE SHALL TAKE THE ABATED ASSESSMENT YEARS, THAT IS, A.YS. 2012-13 AND 2013-14. AS WE HAVE NOTED EARLIER THAT IN CASE OF ABATED ASSESSMENT, THE ASSESSING OFFICER HAS RIGHT TO EXAMINE THE INCRIMINATING MATERIAL, AS WELL AS REGULAR ITEMS OF SCRUTINY ASSESSMENT, THAT IS, ASSESSING OFFICER CAN MAKE ADDITION BASED ON THE INCRIMINATING MATERIAL, AS WELL AS ON ACCOUNT OF REGULAR ITEMS OF SCRUTINY PROCEEDINGS. WE NOTE THAT DURING THE ASSESSMENT PROCEEDINGS UNDER SECTION 144A R.W.S 153A OF THE INCOME TAX ACT, IT WAS NOTICED THAT ASSESSING OFFICER THAT ASSESSEE IS DEALING IN SHARES AND DERIVATIVES ACTIVITIES AND ALSO CLAIMED BOGUS EXEMPTION UNDER SECTION 10(38) OF THE ACT. THE ASSESSING OFFICER HAS OBSERVED THAT THOUGH THE ASSESSEE CLAIMED TO HAVE SOLD THE SHARES OF WIPRO LTD AND THESE SHARES WERE CLASSIFIED UNDER INVESTMENT PORTFOLIO, BUT THERE IS NO CORRESPONDING REDUCTION MADE BY ASSESSEE IN THE TOTAL HOLDINGS OF THE INVESTMENT PORTFOLIO. THE ASSESSING OFFICER ALSO HELD THAT ASSESSEE IS ENGAGED IN TRADING ACTIVITIES AND ASSESSEE DOES NOT HAVE INVESTMENT PORTFOLIO, THEREFORE ASSESSING OFFICER MADE THE ADDITION UNDER THE HEAD BUSINESS INCOME AND THUS DENIED THE EXEMPTION UNDER SECTION 10(38) OF THE ACT. 19. SHRI HIREN M.DIWAN, LEARNED COUNSEL FOR THE ASSESSEE, HAS CONTENDED THAT DURING THE ASSESSMENT STAGE THE ASSESSEE SUBMITTED AFFIDAVIT, CONTRACT NOTES, COPY OF DEMAT ACCOUNT, AND BANK STATEMENTS. THE LEARNED COUNSEL FURTHER CONTENDED THAT ALL THE TRANSACTIONS WERE THROUGH BANKING CHANNEL THEREFORE GENUINENESS OF THE TRANSACTIONS SHOULD NOT BE DOUBTED AND HENCE ADDITION MADE BY THE ASSESSING OFFICER MAY BE DELETED. 20. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE HAS PRIMARILY REITERATED THE STAND TAKEN BY THE ASSESSING OFFICER, WHICH WE HAVE ALREADY NOTED IN OUR EARLIER PARA AND IS NOT BEING REPEATED FOR THE SAKE OF BREVITY. 21. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT FINDING GIVEN IN THE IMPUGNED ORDERS. WE NOTE THAT ASSESSEE SUBMITTED BEFORE US COPY OF THE AFFIDAVIT BY SMT. BINDIBEN V. SHAH, SISTER-IN-LAW OF THE ASSESSEE SUBSTANTIATING THE FACTS THAT SHARES OF WIPRO LIMITED WERE RECEIVED BY THE ASSESSEE BY WAY OF GIFT IN THE YEAR 1999 ( VIDE PAPER BOOK PAGE 21 TO 23). ASSESSEE SUBMITTED BEFORE US COPY OF THE DEMAT ACCOUNT OF SMT. BINDIBEN V.SHAH SUBSTANTIATING THE FACTS THAT SHARES OF WIPRO LIMITED WERE TRANSFERRED BY HER BY WAY OF GIFT IN THE YEAR 1999 TO THE ASSESSEE( VIDE PAPER BOOK PAGE 24). ASSESSEE SUBMITTED BEFORE US COPY OF THE DEMAT ACCOUNT OF ASSESSEE(VIDE PAPER BOOK PAGE 25). ASSESSEE SUBMITTED BEFORE US COPY OF THE DEMAT ACCOUNT OF ASSESSEE SUBSTANTIATING THE FACT OF TRANSFER OF SHARES OF 1,49,000 OF WIPRO LIMITED, OUT OF THE GIFTED SHARES TO EDELWEISS FINANCE LTD. ( VIDE PAPER BOOK PAGE 31 TO 34 ). ASSESSEE SUBMITTED BEFORE US COPY OF TRANSACTION OF THE ASSESSEE WITH EDELWEISS FINANCE LTD, SUBSTANTIATING THE FACT OF RECEIPT OF 1,49,000 SHARES OF WIPRO LTD, THEREIN AND SALE OF 52,000 SHARES OF WIPRO LTD, THEREFROM (VIDE PAPER BOOK PAGE 43 TO 44). ASSESSEE SUBMITTED BEFORE US COPY OF LEDGER ACCOUNT OF EDELWEISS FINANCE LTD, FROM THE BOOKS OF ACCOUNTS OF THE ASSESSEE ( VIDE PAPER BOOK PAGE 45 ). ASSESSEE SUBMITTED BEFORE US COPY OF RELEVANT CONTRACT NOTES(VIDE PAPER BOOK PAGE 46 TO 52). ASSESSEE SUBMITTED BEFORE US COPY OF DEMAT ACCOUNT OF ASSESSEE SUBSTANTIATING THE FACT OF PLEDGE OF 1,82,553 PAGE | 13 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH SHARES OF WIPRO LTD OUT OF THE GIFTED SHARES WITH BAJAJ FINANCE LTD (VIDE PAPER BOOK PAGE 34TO 41). ASSESSEE SUBMITTED BEFORE US COPY OF CONTRACT NOTE -CUM-BILL ISSUED BY BATLIWALA & KARANI (VIDE PAPER BOOK PAGE 53). 22.FROM THE ABOVE NARRATED FACTS, IT IS CLEAR THAT ASSESSEE HAS SUBMITTED PLETHORA OF DOCUMENTS TO SUBSTANTIATE ITS CLAIM, AS NOTED BY US ABOVE. IT MIGHT BE VERY PLEASING TO THE EYES TO READ THE WHOLE NARRATIVE MENTIONED BY THE LD. ASSESSING OFFICER IN THE ASSESSMENT ORDER. BE THAT AS IT MAY BE, FOR FASTENING OF TAX LIABILITY BY TREATING ANY ITEM AS INCOME, THE ONUS SQUARELY FALLS ON THE SHOULDER OF REVENUE THROUGH ASSESSING OFFICER WHO CANNOT WORK MINDLESSLY AND BLINDLY. THE ASSESSING OFFICER DID NOT GIVE ANY FINDINGS THAT THE DOCUMENTS AND EVIDENCES (AS MENTIONED BY US IN PARA 21 OF THIS ORDER) SUBMITTED BY THE ASSESSEE BEFORE HIM, DURING THE ASSESSMENT STAGE ARE FALSE AND UNTRUE. JUST TO SAY THAT EXPLANATIONS AND DOCUMENTS SUBMITTED BY THE ASSESSEE ARE NOT ACCEPTABLE, IS NOT SUFFICIENT. THE ASSESSING OFFICER IS AN ADJUDICATOR AND INVESTIGATOR, HE HAS TO EXAMINE, VERY CAREFULLY, THE EVIDENCES AND DOCUMENTS SUBMITTED BY THE ASSESSEE. WE NOTE THAT IN THE PRESENT CASE, THE ASSESSING OFFICER NEITHER BROUGHT OUT ANY INDEPENDENT MATERIAL/FINDING ON RECORD TO PROVE THAT DOCUMENTS AND EVIDENCES SUBMITTED BY THE ASSESSEE ARE FALSE. THEREFORE, WE NOTE THAT ASSESSING OFFICER HAS NOT MADE ANY ADVERSE FINDING IN ANY OF THESE DOCUMENTS, EVEN THOUGH, ALL THESE EVIDENCES AND DOCUMENTS WERE FURNISHED BY THE ASSESSEE BEFORE HIM. THE ASSESSING OFFICER OUGHT TO HAVE EXAMINED ALL THESE EVIDENCES AND DOCUMENTS AND DISPROVED / REJECTED THEM, WITH A COGENT ADVERSE FINDINGS AND DISCERNABLE LINE OF REASONING, IN ORDER TO ARRIVE AT A CONCLUSION AND TO MAKE THE ADDITION IN RESPECT OF SALE OF WIPRO SHARES, HOWEVER, WE NOTE THAT ASSESSING OFFICER HAS FAILED TO DO SO. IT IS A WELL SETTLED LAW THAT WHEN AN ASSESSEE HAS ALL THE POSSIBLE EVIDENCES AND DOCUMENTS IN SUPPORT OF ITS CLAIM, THEY CANNOT BE BRUSHED ASIDE BASED ON SURMISES. HENCE, WE ARE NOT INCLINED TO ACCEPT THE CONTENTION OF THE ASSESSING OFFICER IN ANY MANNER AND HENCE THE ADDITIONS SO MADE ARE HEREBY DELETED. THEREFORE, WE REVERSE THE ACTION OF THE ASSESSING OFFICER IN ASSESSMENT YEAR 2012-13 AT RS.2,76,89,895/- (ABATED ASSESSMENT) AND IN ASSESSMENT YEAR 2013-14 AT RS.6,20,56,548/-(ABATED ASSESSMENT), IN TREATING THE CAPITAL GAIN AS BUSINESS INCOME. 6.SINCE, THE ISSUE RAISED BY THE ASSESSEE IN CONCISE GROUND NO. 1 IS SQUARELY COVERED BY THE CASE OF HIS WIFE SMT. DAMINIBEN AMITBHAI SHAH [IN IT(SS)A NO. 192 TO 195/AHD/2017], ORDER DATED 31.08.2021, THERE IS NO CHANGE IN FACTS AND LAW. WE FIND NO REASON TO INTERFERE IN THE SAID ORDER OF THE DIVISION BENCH, THEREFORE, RESPECTFULLY FOLLOWING THE JUDGMENT OF THE COORDINATE BENCH IN ASSESSEES WIFE CASE, WE DELETE THE ADDITION MADE BY ASSESSING OFFICER. WE ALLOW CONCISE GROUND NO. 1 RAISED BY THE ASSESSEE. 7.THE SUMMARIZED AND CONCISE GROUND NO.2 RAISED BY THE ASSESSEE, IS REPRODUCED BELOW FOR READY REFERENCE: PAGE | 14 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH (2) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING ADDITION UNDER SECTION 41(1) OF THE ACT. (I) FOR A.Y. 2011-12: ADDITION OF RS.41,25,000/- U/S 41(1) MADE BY AO IN ABSENCE OF ANY INCRIMINATING MATERIAL. LEARNED COUNSEL PRAYS THAT ASSESSMENT YEAR 2011-12 IS UNABATED ASSESSMENT, THEREFORE ADDITION SHOULD NOT BE MADE WITHOUT INCRIMINATING MATERIAL. (ABATED ASSESSMENT) (II)FOR A.Y. 2012-13: ADDITION OF RS.1,64,59,592/- U/S 41(1) MADE BY AO. THIS IS ABATED ASSESSMENT YEAR WHEREIN THE ASSESSING OFFICER CAN DO REGULAR SCRUTINY TO VERIFY THE ITEMS IN THE RETURN OF INCOME FILED BY THE ASSESSEE. (ABATED ASSESSMENT) 8.SUCCINCT FACTS OF THE ISSUE ARE AS FOLLOWS: THE ASSESSING OFFICER, ON PERUSAL OF THE RETURN OF INCOME FILED BY THE ASSESSEE, NOTICED THAT FOLLOWING PAYMENTS WERE MADE BY ASSESSEE, TO M S FABRICS FOR ASSESSMENT YEAR 2011-12 AND A.Y. 2012-13, WHICH IS REPRODUCED BELOW: OPENING BALANCE CLOSING BALANCE REPAYMENT SHOWN DURING YEAR A.Y 201 1-12 RS 2,07,09,592/- RS 1,65,84,592/- RS 41, 25,000/- A.Y 2012-13 RS 1,65,84,592/- RS 1,25,000/- RS 1,64,59,592/- DURING THE ASSESSMENT PROCEEDINGS, ASSESSEE WAS ASKED TO FILE DETAILS AND EVIDENCE OF REPAYMENT MADE TO M S FABRIC. THE ASSESSING OFFICER NOTICED THAT ASSESSEE MERELY SUBMITTED BANK BOOK ( LEDGER COPY ) WHICH HAS WRITTEN REMARK PAYMENT TO M S FABRIC. ASSESSEE WAS ASKED TO FURNISH ADDRESS, BANK STATEMENT, PAN AND DETAILS OF M S FABRIC FOR VERIFICATION OF REPAYMENT. THE ASSESSEE DID NOT PROVIDE ANY DETAILS/EVIDENCES. THE ASSESSING OFFICER NARRATED IN HIS ASSESSMENT ORDER, THE PAST HISTORY AND PRESENT STATUS OF M.S. FABRICS: HISTORY OF M.S.FABRICS THE ENTRY ON A/C OF M.S FABRIC IS MADE IN YEAR 2005-06 OR EARLIER. THIS ENTRY WAS MADE TO BALANCE THE UNEXPLAINED ASSETS IN THE BALANCE SHEET, BY PASSING AN ENTRY OF SUNDRY CREDITORS. THE PERIOD OF ENTRY OF SUNDRY CREDITOR IN BALANCE SHEET IS BARRED BY LIMITATION OF TIME AS IT IS BEYOND 6 YEARS PERIOD. ASSESSEE WAS CONFRONTED TO FILE THE PROOF OF THIS SUNDRY CREDITOR ENTRY IN A.Y 2007-08 I.E. THE FIRST YEAR OF THE BLOCK ASSESSMENT PERIOD A.Y 2007-08 TO A.Y 2013-14.THE ASSESSEE COULD NOT PROVIDE EITHER THE ADDRESS, OR THE PAN, OR ANY EVIDENCE OF TRANSACTION WHICH HAS LED TO THE ENTRY AS SUNDRY CREDITOR IN PERIOD A.Y 2005-06 OR EARLIER PERIOD. THE ASSESSEE WAS NOT ABLE TO EXACTLY STATE, WHY THIS SUNDRY CREDITOR IS THERE IN YOUR BALANCE PAGE | 15 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH SHEET AND SINCE WHEN. NOT FILING THE EVIDENCE HAS LED TO TAXATION OF THIS BOGUS ENTRY IN GUISE OF UNEXPLAINED CREDITOR, UNDER SECTION 41(1) OF I.T. ACT, TREATING THIS AS INCOME IN THE HANDS OF ASSESSEE BY CESSATION OF LIABILITY IN A.Y 2007-08.THIS ADDITION ON ACCOUNT OF CESSATION OF LIABILITY IN A.Y. 2007-08 HAS BALANCED THE WRONG FULL BALANCING ASSETS ENTRY MADE IN THE BALANCE SHEETS OF EARLIER YEARS I.E. 2005-06 OR EARLIER, AGAINST THE BOGUS ENTRY IN GUISE OF UNEXPLAINED CREDITOR. PRESENT STATUS: IN CURRENT YEAR, REPAYMENT OF RS.41,50,000/- WAS SEEN. ASSESSEE WAS ASKED THE ADDRESS, PAN & DETAILS OF M S FABRIC FOR VERIFICATION OF REPAYMENT. ASSESSEE IS UNABLE TO PROVIDE ANY DETAILS W.R.T M S FABRIC. BANK BOOK ALSO STATES THAT ON A/C PAYMENT IS MADE AGAINST M S FABRIC, BUT NO NAME OR DETAILS ARE PROVIDED W.R.T TO THE PARTY TO WHOM THESE PAYMENTS ARE DONE IN THE GUISE OF REPAYMENT TO MS FABRIC. BANK SHOW WITHDRAWALS BY NAME M.S. FABRIC & BANK ACCOUNT STATES ON ACCOUNT PAYMENT . NO DETAILS WAS BEEN FILED BY ASSESSEE, 'FOR THE REASONS OF PAYMENT MADE AS 'ON A/C PAYMENTS.'THE PARTY TO WHOM THE PAYMENTS ARE MADE ARE NOT REFLECTED IN THE BALANCE SHEET. THESE PAYMENTS MADE TO OTHER PARTIES OF RS. 41,25,000/- IN A.Y. 2011-12 AND RS.1,64,59,592/- IN A.Y 2011-12 AGAINST WHICH NEITHER ANYTHING IS RECORDED IN BOOKS NOR ANY PROOF IS VERIFIABLE THAT TO WHOM SAID AMOUNT IS PAID. THIS BECOMES APPARENT NECESSARY TO VERIFY THE RECIPIENT OF RS.41,25,000/- IN A.Y 2011-12 AND RS.1,64,59,592/- IN A.Y 2011-12 TO KNOW WHAT TREATMENT THE RECIPIENT HAS GIVEN IN HIS BOOKS OF ACCOUNT . ASSESSEE IS NOT PROVIDING ANY DETAILS OF PERSON TO WHOM THE PAYMENT IS DONE IN-SPITE OF THE SHOW CAUSE STATING THAT ON FAILURE OF FILING THE DETAILS, THIS PAYMENT SHALL BE TREATED AS OUT OF BOOK INVESTMENT WHICH IS NOT RECORDED IN THE BOOKS. THE ASSESSEE HAS OFFERED NO EXPLANATION ABOUT THE RECIPIENT. THE ASSESSING OFFICER IS UNABLE TO VERIFY THE ACCOUNTING TREATMENT GIVEN BY THE RECIPIENT W.R.T THE RECEIPT OF AMOUNT ON ACCOUNT OF M.S. FABRIC. IN SUCH CIRCUMSTANCES, THIS TRANSACTION IS TREATED AS 'UNEXPLAINED OUT OF BOOK INVESTMENT' MADE BY ASSESSEE AND TREATED AS INCOME IN THE HAND OF AMIT SHAH U/S 69 OF I.T. ACT. ( ADDITION OF RS.41,25,000/- AS OTHER INCOME U/S 69 OF IT. ACT). 9. AGGRIEVED, THE ISSUE WAS TAKEN UP BEFORE THE FIRST APPELLATE AUTHORITY FOR RELIEF. AFTER DUE CONSIDERATION OF THE ASSESSEES SUBMISSION, THE CIT(A) HAD REJECTED THE ISSUE RAISED BY THE ASSESSEE, OBSERVING AS FOLLOWS: PAGE | 16 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH 14.2 THE ASSESSEE HAD GIVEN NO DETAILS WHATSOEVER ABOUT THE IDENTITY OF THE PARTY TO WHOM SUCH A HUGE AMOUNT OF OVER RS.2.07 CRORE WAS CLAIMED PAYABLE NOR HAS GIVEN ANY DETAIL ABOUT THE NATURE OF TRANSACTIONS (WHAT TO SAY OF THE EXACT TRANSACTION) OR THE YEAR OF TRANSACTION WHICH COULD HAVE GIVEN RISE TO SUCH A HUGE CREDIT. AS DISCUSSED EARLIER IN THE ORDER THE ASSESSEE TILL RECENTLY WAS FILING HIS RETURN SHOWING PRESUMPTIVE TAXATION U/S. 44AF OF THE ACT. HOW COULD ON THE BASIS OF HUMAN PROBABILITIES IT COULD BE BELIEVED THAT WITH THE TURNOVER OF LESS THAN RS. 40 LAKH IN THOSE YEARS, HE WOULD NOT KNOW EVEN THE BASIC DETAILS OF SUCH A BIG CREDITOR. THEREFORE, SUMMONS U/S.131 WERE ISSUED TO THE ASSESSEE AND HIS STATEMENT WAS RECORDED ON OATH ON 21.12.2016 BY THE UNDERSIGNED. IN THE STATEMENT ALSO, HE WENT ON GIVING UNBELIEVABLE AND DODGING ANSWERS. IT WAS CLEAR THAT HE WAS HIDING THE DETAILS TO AVOID GIVING TRUE STATE OF AFFAIRS . THE RELEVANT PART OF THE STATEMENT IS BEING REPRODUCED BELOW FOR MAKING THE POINT CLEAR: 'STATEMENT U/S. 131 QF THE I.T. ACT. 1961 STATEMENT ON OATH/SOLEMN AFFIRMATION RECORDED OF SHRI AMIT VASANTLAL SHAH, SON OF SHRI VASANTBHAI SHAH, (PAN-APXPS3632JJ, RECORDED ON 21.12.2016 AT 11:30 AM AT ROOM NO.216-A, AAYAKAR BHAVAN, MAJURA GATE, GHOD DOD ROAD, SURAT, DURING THE COURSE OF APPELLATE PROCEEDINGS IN THE CASE OF THE ASSESSES, HIMSELF SHRI AMIT V. SHAH. OATH TAKEN BY OATH ADMINISTERED BY (SD/- AMIT SHAH) (SD/- RAJEEV AGARWAL) Q.NO.3: YOU HAD CLAIMED THAT THERE WERE AMOUNTS OUTSTANDING PAYABLE TO LR. FINANCE AND M.S. FABRICS SINCE LONG. YOU DID NOT GIVE ANY DETAILS OF THE NATURE OF THE TRANSACTIONS CLAIMED WITH THEM AND THEIR IDENTITIES. EXPLAIN. ANS. : AS FAR AS M.S. FABRICS IS CONCERNED, I DO NOT KNOW THE IDENTITY OF THE PARTY AND THE NATURE OF THE BUSINESS/ TRANSACTIONS WITH IT. THERE WAS ONE COUSIN NAMELY RASIK MAGANLAL SHAH, WHO USED TO MAINTAIN OUR ACCOUNTS AND BUSINESS WAS DONE BY US. HE WAS ALSO KEEPING ACCOUNTS OF OUR PARTNERSHIP FIRM OF THE CEMENT HOUSE WHOSE PARTNERS WERE SHRI NILESH TRIVEDI, MYSELF AND MY WIFE. SHRI NILESH JRIVEDI AND ME USED TO LOOK AFTER THE BUSINESS. SHRI NILESH TRVEDI RETIRED FROM PARTNERSHIP 12-13 YEARS BACK. AFTER THAT ME & MY WIFE ARE PARTNERS. RASIK MAGANLAL SHAH, WHO LOOKED AFTER OUR ACCOUNTS, DIED BECAUSE OF AGE AND DISEASES AT THE AGE OF AROUND 75, IN YEAR 2005.1 DO NOT KNOW THE NAME OR IDENTITY OF ANYBODY FROM M.S.FABRICS. MY COUSIN AS ABOVE ONLY INTRODUCED SOME PERSON FACIALLY (PERSON TO PERSON) AND SAID THAT I SHOULD MAKE PAYMENTS TO HIM AS AND WHEN HE APPROACHED ME. Q.NO.4 : DID NOT YOU ASK THE NAME OR ADDRESS OF THE CONCERN M.S.FABRICS OR THE PERSON YOU ARE CLAIMING YOU WERE INTRODUCED TO PERSONALLY; AND AS TO WHY SUCH A HUGE PAYMENT WAS DUE TO IT? DID YOU TAKE THE PHONE NUMBER OR OTHER IDENTITY OR ADDRESS? PAGE | 17 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH ANS.4 :NO. I DID NOT ASK FOR ANYTHING NOT EVEN THE NAME OF THE PERSON. I DID NOT ASK FOR ANYTHING WHICH COULD ENABLE ME TO CONTACT THE PARTY. Q.NO.5: WHAT WERE THE SALARY OR PROFITS GIVEN TO YOUR CLAIMED COUSIN? ANS.5: HE DID NOT TAKE ANY SALARY OR PROFIT. Q.NO.6 : DESCRIBE THE PERSON YOU ARE CLAIMING WAS INTRODUCED TO YOU AND ALSO WHEN AND HOW HE WAS INTRODUCED TO YOU FOR THE FIRST TIME ? ANS.6 : HEIGHT : APP. 5-6', AGE: 40- 45 YEARS AT THE TIME OF INTRODUCTION WHICH I DO NOT REMEMBER, SKIN COLOUR : LIKE ME, (BROWN), I AM NOT REMEMBERING FULLY AS I AM DIABETIC FROM 20 YEARS AND HAVE TREATMENT FOR HEART DISEASES IN LAST 2 YEARS. Q.NO.7: DID YOU INTRODUCE HIM TO ANYBODY OF YOUR FAMILY OR ANYBODY ELSE EVER? ANS. 7: NEVER. Q.NO.8 : IS ANY AMOUNT DUE TO THAT PARTY NOW? ANS.8.: I DO NOT REMEMBER OR KNOW NOW. I HAVE TO REFER TO MY BOOKS. Q.NO.9 : ACCORDING TO YOU, WHAT DO YOU THINK WAS THE NATURE OF TRANSACTION AND SINCE WHEN THE AMOUNT WAS OUTSTANDING TO M.S.FABRICS ? EVEN GIVE YOUR FEELING IF YOU CLAIM THAT YOU DO NOT KNOW THE EXACT TRANSACTION. ANS. THE AMOUNT WAS OUTSTANDING SINCE APP. 1998-2000. I DO NOT HAVE ANY IDEA OF TRANSACTION, NOT EVEN A FEELING. Q.NO.10: WHAT GIVES YOU AN IDEA THAT THE CREDITS WERE OUTSTANDING SINCE 1998- 2000 IN CASE OF M.S. FABRICS? ANS.: THE PERSON WHO CAME TO TAKE THE PAYMENTS TOLD ME. Q.NO. 11: DID NOT YOU ASK HIM FOR WHAT THIS PAYMENT WERE DUE? ANS. : I DID NOT ASK HIM. Q.NO. 12 : YOU SAID THAT YOUR COUSIN ONLY DEALT WITH ACCOUNTS AND YOU DID THE BUSINESS. HOW YOU DO NOT KNOW WHY SUCH HUGE AMOUNTS WERE OUTSTANDING AND TO WHOM? ANS.: I DO NOT KNOW. Q.NO.13: ACCORDING TO YOU, YOU WERE JUST HONOURING THE ACCOUNTS MAINTAINED BY YOUR COUSIN. YOU ARE ALSO SAYING THAT YOU ARE NOT MEDICALLY WELL AND ARE SICK FOR LAST FEW YEARS PARTICULARLY THE LAST 2 YEARS. YOU SAID THAT YOU DO NOT KNOW HOW MUCH AMOUNT IS STILL OUTSTANDING. PLEASE EXPLAIN WHY DID NOT YOU INTRODUCE THE PERSON CLAIMED, TO YOUR FAMILY MEMBERS? ANS.: I DO NOT FIND IT NECESSARY. Q.NO. 14 : WHY DID NOT YOU MAKE PAYMENTS BY ACCOUNT PAYEE CHEQUES TO THIS PARTY, WHEN YOU ARE MAKING PAYMENT TO OTHER PARTIES BY ACCOUNT PAYEE CHEQUES? ANS. : I DO NOT REMEMBER. Q.NO.15: I AM SHOWING YOU A COPY OF ONE OF YOUR CHEQUES TO M.S.FABRICS. WHOSE HANDWRITING IS THERE ON THE CHEQUE AND WHY IS IT NOT ACCOUNT PAYEE? ANS.: THE HANDWRITING IS OF SOME STAFF AND I DO NOT KNOW WHY IT IS NOT ACCOUNT PAYEE. Q.NO.16 : WHO WAS THE STAFF OR ACCOUNTANT WHO GENERALLY USE TO WRITE YOUR CHEQUES IN 2017? ANS.: I DO NOT REMEMBER. Q.NO.17 : WHO WAS THE STAFF NOW WHO WRITES YOUR CHEQUES ? WHAT IS HISPHONE NUMBER/ ADDRESS ETC. PAGE | 18 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH ANS. CHAULA MADAM. MOBILE NO. : 7575000158. ADDRESS: ANJANSHALAKHAAPARTMENT, LAL BUNGLOW, SURAT. SHE IS THERE FOR LAST 2 YEARS. Q.NO. 18 : WHERE DID THE SAID PERSON FROM M.S. FABRICS, USED TO COME TO YOU ? WHETHER HE RANG YOU UP BEFORE COMING? ANS. HE USED TO COME WITHOUT CALLING AND WITHOUT KNOWING THAT THE PAYMENT WOULD BE MADE OR NOT. I USED TO MAKE PAYMENT ACCORDING TO THE AVAILABILITY OF FUNDS. Q.NO.19 : YOU ARE CLEARLY AVOIDING GIVING SPECIFIC REPLIES. WOULD YOU WANT TO EXPLAIN THE CORRECT NATURE OF TRANSACTIONS AND TRUE FACTS AND CIRCUMSTANCES OF THE CLAIM? ANS. : L DO NOT WANT TO ADD ANYTHING. '' Q.NO.20 : DOES ANY OF STAFF MEET THIS PERSON IN YOUR PRESENCE OR OTHERWISE ? ANS. : NEVER. Q.NO.23 : WHETHER THIS CREDIT ALSO CAME TO BE KNOWN TO YOU ONLY THROUGH YOUR COUSIN, SHRI RASIK MAGANLAL SHAH ?LF SO, WHAT DETAILS YOUR COUSIN TOLD YOU ABOUT THIS CREDIT BALANCE ? HOW DID YOU COME TO KNOW ABOUT THE ADDRESS AND DETAILS OF THIS PARTY NOW? ANS. IN THIS CASE, I KNEW ABOUT THE PARTY AND MY COUSIN TOLD ME ABOUT THE BALANCE. I HAVE READ AND UNDERSTOOD THE STATEMENT AND SIGN AFTER READING THE STATEMENT.' 14:3 AS DISCUSSED EARLIER IN THE ORDER THE ASSESSEE TILL RECENTLY WAS FILING HIS RETURN SHOWING PRESUMPTIVE TAXATION U/S. 44AF OF THE ACT. HOW COULD ON THE BASIS OF HUMAN PROBABILITIES IT COULD BE BELIEVED THAT WITH -THE TURNOVER OF LESS THAN RS.40 LAKH IN THOSE YEARS, HE WOULD NOT KNOW EVEN THE BASIC DETAILS OF SUCH A BIG CREDITOR. FROM THE STATEMENT ABOVE, IT IS CLEAR THAT HE WENT ON-GIVING UNBELIEVABLE AND DODGING ANSWERS. IT WAS CLEAR THAT HE WAS HIDING THE DETAILS TO AVOID GIVING TRUE STATE OF AFFAIRS. THE FOLLOWING OBSERVATIONS PROVE THIS WITHOUT AN IOTA OF DOUBT: A) THIS WAS THE BIGGEST CREDIT. IT WAS OVER FIVE TIMES THE ANNUAL TURNOVER (LIMIT OF 44AF). CAN IT BE BELIEVED THAT THE PERSON ENGAGED IN BUSINESS DO NOT KNOW EVEN THE NATURE OF TRANSACTIONS OR THE PARTY WITH WHOM SUCH TRANSACTIONS TOOK PLACE RESULTING IN THE CLAIMED HUGE DEBT. B) THE ASSESSEE IN REPLY TO Q. NO. 3 (ABOVE) SAYS THAT ONLY THE ACCOUNTANT KNEW IT AND HE HAS DIED. THE SAID ACCOUNTANT IS CLAIMED TO HAVE INTRODUCED THE PARTY TO THE ASSESSEE BUT IS IT BELIEVABLE THAT HE WILL NOT EVEN ASK THE NAME OF THE PERSON CONCERNED TO WHOM SUCH HUGE PAYMENTS TO BE MADE. C) THE PERSON WHO IS CLAIMED TO HAVE KNOWN ABOUT THE TRANSACTION IS CLAIMED TO HAVE DIED IN 2005. THE ASSESSEE WAS HAVING WIPRO SHARES WORTH CRORES OF RUPEES. IS IT BELIEVABLE THAT CLAIMED CREDITOR DID NOT INTRODUCE HIMSELF AND TOOK PAYMENT AFTER DECADES WITHOUT INTEREST AND ONLY AFTER 5 YEARS AFTER DEATH OF SHRI RASIK MAGANLAL SHAH. D) THE ASSESSEE DID NOT TRY TO TAKE THE IDENTITY OR PHONE NUMBER OR ADDRESS OF THE PARTY (REPLY TO Q. NO. 4). HE DID NOT HAVE EVEN INKLING OR IDEA AS TO WHY THE PAYMENT WAS PENDING (REPLY TO Q. NO. 9) AND ALSO DID NOT ASK THE PERSON WHY THE PAGE | 19 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH PAYMENT WAS DUE (REPLY TO Q. NO. 11). ALL THIS DOES NOT FIT THE PROBABILITIES OF HUMAN BEHAVIOR. E) WHEN ASKED TO DESCRIBE THE PERSON WHO IS CLAIMED TO HAVE TAKEN PAYMENTS, HE GAVE ONLY VERY SKETCHY DETAILS AND SAID THAT HE IS NOT REMEMBERING THE DETAILS AS HE IS DIABETIC AND IS HAVING TREATMENT OF HEART DISEASE. CLEARLY, HE WAS AVOIDING AND EVADING ENQUIRY (REPLY TO Q. NO. 6). F) ON ONE HAND, IT IS CLAIMED THAT THE PAYMENTS WERE MADE TO A PERSONALLY UNKNOWN PERSON ON THE WORD OF THE PERSON MAINTAINING THE ACCOUNTS, AND ON THE OTHER DESPITE HE (ASSESSEE) BEING- SERIOUSLY SICK AND AMOUNT STILL OUTSTANDING, THE ASSESSEE DID NOT INTRODUCE SUCH PERSON EVEN TO HIS ACCOUNTANT OR ANY OF HIS FAMILY MEMBERS (REPLY TO Q. NO. 13). , G) FURTHER, WHEN THE CHEQUES WHICH WERE ISSUED CLAIMING TO MAKE PAYMENTS TO M S FABRICS WERE ENQUIRED INTO FURTHER, AND THE DETAILS CALLED FROM THE ISSUING BANK. AND THE BANK IN WHICH THESE WERE FINALLY CREDITED; IT WAS FOUND THAT THESE CHEQUES WERE NOT ACCOUNT PAYEE , THESE COULD HAVE BEEN ENDORSED TO ANYBODY ELSE. H) THE ASSESSEE WAS SPECIFICALLY ASKED WHETHER HE MET ANYBODY ELSE INCLUDING HIS STAFF WITHOUT HIS PRESENCE, AND HE SAID NEVER (REPLY TO Q. NO. 20). THEREFORE, THE FACT THAT THE CHEQUES WERE ISSUED WITHOUT MAKING THEM ACCOUNT PAYEE WAS MANAGED BY HIM ONLY. HE WAS ALSO ASKED THAT WHY WHEN ALL OTHER CHEQUES, IN NAME OF THIRD PARTIES WERE ACCOUNT PAYEE; WHY THESE CHEQUES IN NAME OF M S FABRICS WHERE HUGE PAYMENTS HAD TO BE MADE WERE NOT DONE SO. HE SAID HE DID NOT KNOW AND DID NOT GIVE ANY EXPLANATION (REPLY TO Q. NO. 15). I) IT WAS FOUND THAT THESE WERE FINALLY CREDITED TO A SHROFF WHO WAS IN THE BUSINESS OF DISCOUNTING CHEQUES AND DRAFTS (ACCOUNT OF DARPAN S SHAH (HUF) (PAN ADJPS0354B) WHO IN HIS RETURN SHOWS BUSINESS OF COMMISSION ON CHEQUE/DRAFTS). CLEARLY, IT WAS MADE SURE THAT THE AMOUNTS WERE AVAILABLE IN CASH TO THE ASSESSEE HIMSELF. TO SUM UP, THE ASSESSEE IS AVOIDING TO GIVE TRUE STATE OF AFFAIRS. IT IS AGAINST HUMAN PROBABILITIES AND IS UNBELIEVABLE THAT A PERSON DOING BUSINESS OF LESS THAN 40 LAKH PER YEAR DID NOT REMEMBER ANYTHING ABOUT THE TRANSACTION LEADING TO THE DEBT OF OVER 2.07 CRORES, CLAIMS TO HAVE MADE PAYMENTS ON THE WORD OF THE ACCOUNTANT WITHOUT EVEN ASKING THE IDENTITY, ADDRESS OR NATURE OF ORIGINAL TRANSACTION, CLAIMS MAKING PAYMENTS BUT USES NON ACCOUNT PAYEE CHEQUES / CLAIMS THAT HE IS SERIOUSLY ILL BUT DOES NOT INTRODUCE THE SAID PERSON TO ANYBODY SO THAT FUTURE PAYMENTS COULD BE ENSURED. IT WAS FOUND THAT THESE WERE FINALLY CREDITED TO A SHROFF WHO WAS IN THE BUSINESS OF DISCOUNTING CHEQUES AND DRAFTS (ACCOUNT OF DARPAN S SHAH (HUF) (PAN ADJPS0354B) WHO IN HIS RETURN SHOWS BUSINESS OF COMMISSION ON CHEQUE/DRAFTS). CLEARLY, IT WAS MADE SURE THAT THE AMOUNTS WERE AVAILABLE IN CASH TO THE ASSESSEE HIMSELF. NOW, THE FACT THAT WHEN THERE ARE OUTSTANDING CREDITS IN THE ACCOUNTS BUT THE PAYMENTS ARE MADE TO ENSURE THAT IT IS WITHDRAWN HIMSELF SHOWS THAT BEFORE THE DATE OF PAYMENTS EITHER THE AMOUNTS DUE WERE NOT PAYABLE OR THE PAYMENTS WERE PAGE | 20 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH ALREADY MADE. IN THE FIRST SCENARIO, IF THE AMOUNT WAS BECAUSE OF TRADING/BUSINESS TRANSACTION AND THE EXPENSE WAS CLAIMED; THE CREDIT ON THE DATE WHEN THE PAYMENT WAS SHOWN HAD ALREADY CEASED (DEFINITELY BEFORE THE BOGUS/BENAMI PAYMENT WAS CLAIMED MADE) AND THEREFORE, THE ADDITION OF THE AMOUNTS MADE BY THE AO WOULD BE JUSTIFIED U/S. 41(1) OF THE ACT. IN CASE OF AMOUNTS NOT BEING ACTUALLY DUE, BECAUSE OF PAYMENT EARLIER (PROVED/FOUND TO BE IN THE PREVIOUS YEAR IN WHICH BOGUS PAYMENTS HAVE BEEN MADE) AND IN THAT CASE TOO, THE ADDITION OF THE AMOUNTS MADE BY THE AO ARE FULLY JUSTIFIED REPRESENTING PAYMENTS FROM UNDISCLOSED/UNEXPLAINED SOURCES MADE BY THE ASSESSEE. THEREFORE, THE ADDITIONS MADE BY THE AO ARE FULLY JUSTIFIED ON THE MERITS AND FACTS OF THE CASE. THE ASSESSEE HAS ALSO PLEADED THAT THE ADDITIONS COULD NOT BE MADE IN ABSENCE OF INCRIMINATING EVIDENCES FOUND DURING SEARCH. FIRSTLY, AS DISCUSSED IN PARA 7.2 THE RETURN FOR A.Y. 2012-13 HAVE NOT BECOME FINAL ON THE DATE OF SEARCH AND THEREFORE THERE WAS NO SUCH LIMITATION FOR THIS ASSESSMENT YEAR. FURTHER, IN CASE OF GENUINE TRANSACTION THE ADDRESS/IDENTITY/PHONE NUMBER ETC. OF SUCH A CREDITOR SHOULD HAVE BEEN FOUND DURING THE COURSE OF SEARCH. THE ABSENCE OF SUCH RECORD IS ITSELF INCRIMINATING EVIDENCE AGAINST THE ASSESSEE. NEEDLESS TO ADD THAT AFTERWARDS ALSO WHERE NO IDENTITY / ADDRESS OF THE CREDITOR IS KEPT, IS ITSELF EVIDENCE/INCRIMINATING EVIDENCE AGAINST THE ASSESSEE. HENCE, THE ASSESSEE CANNOT SUCCEED ON THIS PLEA. 10. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US. 11. LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED BEFORE US THAT A.O. MADE AN ADDITION OF SAID SUM OF RS. 41.25 LACS EVEN WHEN THERE WAS NO INCRIMINATING MATERIAL FOUND IN REGARD TO THIS TRANSACTION DURING THE COURSE OF SEARCH PROCEEDINGS. FOR ASSESSMENT YEAR 2012-13, SIMILAR SUBMISSIONS WERE MADE BY THE LD COUNSEL. THE LD COUNSEL ALSO SUBMITS BEFORE THE BENCH THAT TRANSACTIONS WERE THROUGH BANKING CHANNEL THEREFORE, NO ADDITION SHOULD BE MADE, FOR ASSESSMENT YEARS 2011- 12, AND 2012-13. 12. LEARNED DR FOR THE REVENUE SUBMITS THAT ASSESSEE HAS NOT SUBMITTED BANK STATEMENTS, CONFIRMATION OF CREDITORS, PAN NUMBER OF CREDITORS, ADDRESS OF CREDITORS, AND THE PROOF THAT PAYMENT HAS BEEN MADE BY ACCOUNT PAYEE CHEQUES OR NON-ACCOUNT PAYEE CHEQUES. HENCE, LD DR PRAYS THE BENCH THAT ADDITION MADE BY THE ASSESSING OFFICER MAY BE CONFIRMED. 13. WE HAVE HEARD LEARNED ARGUMENTS ON BOTH SIDES, AND WE PROCEED TO RECORD OUR OPINION. WE NOTE THAT SEARCH WAS CONDUCTED ON 27.12.2012, THAT IS, IN THE PREVIOUS PAGE | 21 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH YEAR 2012-13 ( PREVIOUS YEAR OF SEARCH PERIOD 01.04.2012 TO 31.03.2013 ). ON THE DATE OF SEARCH, THE ASSESSMENT FOR THE ASSESSMENT YEAR 2011-12 WAS PENDING. FOR THE ASSESSMENT YEAR 2011-12, THE TIME LIMIT FOR ISSUE OF NOTICE UNDER SECTION 143(2) WAS UP TO 30.09.2011 AND THE TIME LIMIT TO COMPLETE THE ASSESSMENT WAS WITHIN TWO YEARS FROM THE END OF THE ASSESSMENT YEAR, THUS, ASSESSING OFFICER COULD COMPLETE THE ASSESSMENT FOR A.Y. 2011-12 UP TO 31.03.2014. THE SEARCH WAS CONDUCTED ON 27.12.2012 AND UP TO THE DATE OF SEARCH, THE RETURN OF INCOME FOR A.Y.2011-12 HAS NOT BECOME FINAL, THEREFORE, THE ASSESSMENT FOR A.Y 2011-12 WAS PENDING, HENCE, ASSESSMENT YEAR 2011-12 IS AN ABATED ASSESSMENT YEAR. WE ALSO NOTE THAT RETURN OF INCOME FOR A.Y. 2012-13 HAS ALSO NOT BECOME FINAL ON THE DATE OF SEARCH AND THEREFORE THERE WAS NO SUCH LIMITATION FOR THIS ASSESSMENT YEAR TO EXAMINE THE ISSUE OF INCRIMINATING MATERIAL. IN CASE OF ABATED ASSESSMENT, THE AO CAN PERFORM THE SCRUTINY ASSESSMENT AND ASK THE ASSESSEE TO FURNISH THE DOCUMENTS AND EVIDENCES TO EXAMINE THE ITEMS MENTIONED IN THE RETURN OF INCOME. WE HAVE GONE THROUGH THE ORDER OF LD CIT(A) AND ASSESSING OFFICER AND NOTICED THAT ASSESSEE HAS NOT SUBMITTED THE ESSENTIAL DOCUMENTS AND EVIDENCES BEFORE THE LOWER AUTHORITIES, THAT IS, B ANK STATEMENTS, CONFIRMATION OF CREDITORS, PAN NUMBER OF CREDITORS, ADDRESS OF CREDITORS, AND THE PROOF WHETHER PAYMENT HAS BEEN MADE BY ACCOUNT PAYEE CHEQUES OR NON-ACCOUNT PAYEE CHEQUES ETC. THEREFORE, ASSESSEE HAS NOT DISCHARGED ITS ONUS TO PROVE IDENTITY, CREDITWORTHINESS, AND GENUINENESS OF CREDITORS. DURING THE APPELLATE PROCEEDINGS, SUMMONS U/S131 WERE ISSUED TO THE ASSESSEE AND ASSESSEE`S STATEMENT WAS RECORDED ON OATH ON 21.12.2016 BY THE LD CIT(A), VIDE PARA NO.14.2 OF ORDER OF LD CIT(A). THE QUESTION NO.3 AND ITS ANSWER BY ASSESSEE IS REPRODUCED BELOW: Q.NO.3: YOU HAD CLAIMED THAT THERE WERE AMOUNTS OUTSTANDING PAYABLE TO LR. FINANCE AND M.S.FABRICS SINCE LONG. YOU DID NOT GIVE ANY DETAILS OF THE NATURE OF THE TRANSACTIONS CLAIMED WITH THEM AND THEIR IDENTITIES. EXPLAIN. ANS. : AS FAR AS M.S.FABRICS IS CONCERNED, I DO NOT KNOW THE IDENTITY OF THE PARTY AND THE NATURE OF THE BUSINESS/ TRANSACTIONS WITH IT. THERE WAS ONE COUSIN NAMELY RASIK MAGANLAL SHAH, WHO USED TO MAINTAIN OUR ACCOUNTS AND BUSINESS WAS DONE BY US. HE WAS ALSO KEEPING ACCOUNTS OF OUR PARTNERSHIP FIRM OF THE CEMENT HOUSE WHOSE PARTNERS WERE SHRI NILESH TRIVEDI, MYSELF AND MY WIFE. SHRI NILESH JRIVEDI AND ME USED TO LOOK AFTER THE BUSINESS. SHRI NILESH TRVEDI RETIRED FROM PARTNERSHIP 12-13 YEARS BACK. AFTER THAT ME & MY WIFE ARE PARTNERS,RASIK MAGANLAL SHAH, WHO PAGE | 22 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH LOOKED AFTER OUR ACCOUNTS, DIED BECAUSE OF AGE AND DISEASES AT THE AGE OF AROUND 75, IN YEAR 2005.1 DO NOT KNOW THE NAME OR IDENTITY OF ANYBODY FROM M.S.FABRICS. MY COUSIN AS ABOVE ONLY INTRODUCED SOME PERSON FACIALLY (PERSON TO PERSON) AND SAID THAT I SHOULD MAKE PAYMENTS TO HIM AS AND WHEN HE APPROACHED ME. 14.FROM THE ABOVE ANSWER OF THE ASSESSEE, IT IS ABUNDANTLY CLEAR THAT ASSESSEE HIMSELF DOES NOT KNOW M.S. FABRICS. HOW IT IS POSSIBLE FOR LOWER AUTHORITIES (AO AND CIT-A) TO ESTABLISH THE IDENTITY OF M.S. FABRICS? THEREFORE, WE NOTE THAT LD CIT(A) HAS RIGHTLY OBSERVED THAT ASSESSEE HAD GIVEN NO DETAILS WHATSOEVER ABOUT THE IDENTITY OF THE PARTY TO WHOM SUCH A HUGE AMOUNT OF OVER RS.2.07 CRORE WAS CLAIMED PAYABLE NOR HAS GIVEN ANY DETAIL ABOUT THE NATURE OF TRANSACTIONS (WHAT TO SAY OF THE EXACT TRANSACTION) OR THE YEAR OF TRANSACTION WHICH COULD HAVE GIVEN RISE TO SUCH A HUGE CREDIT. IT IS ALSO IMPORTANT TO SEE THAT ASSESSEE HAS NOT RETRACTED HIS STATEMENT MENTIONED ABOVE, THEREFORE SUCH STATEMENT HAS EVIDENTIARY VALUE. THEREFORE, WE ARE OF THE VIEW THAT ASSESSEE HAS FAILED TO PROVE THE IDENTITY OF M.S. FABRICS. 15. IT IS NOT CERTAIN WHETHER PAYMENT TO M.S. FABRICS HAS BEEN MADE BY ACCOUNT PAYEE CHEQUE OR BY NON-ACCOUNT PAYEE CHEQUES. THE QUESTION NO.14 OF STATEMENT UNDER SECTION 131 OF THE ACT, AND ITS ANSWER BY ASSESSEE IS REPRODUCED BELOW: Q.NO. 14 : WHY DID NOT YOU MAKE PAYMENTS BY ACCOUNT PAYEE CHEQUES TO THIS PARTY ( M.S. FABRICS) , WHEN YOU ARE MAKING PAYMENT TO OTHER PARTIES BY ACCOUNT PAYEE CHEQUES? ANS. : I DO NOT REMEMBER. 16. FROM ABOVE QUESTION AND ANSWER, IT IS CLEAR THAT ASSESSEE DOES NOT KNOW WHETHER PAYMENT TO M.S. FABRICS HAS BEEN MADE BY ACCOUNT PAYEE CHEQUE OR BY NON-ACCOUNT PAYEE CHEQUES. PAYMENT BY NON-ACCOUNT PAYEE CHEQUES, DOES NOT HAVE EVIDENTIARY VALUE, IT MAY BE SIMPLY CASH WITHDRAWN FOR PERSONAL USE. THE ASSESSEE DID NOT FILE BANK STATEMENT BEFORE THE ASSESSING OFFICER. DURING THE APPELLATE PROCEEDINGS ALSO THE ASSESSEE HAS NOT SUBMITTED BANK STATEMENT BEFORE LD CIT(A). HOWEVER, LD CIT(A) HAS MADE EFFORTS TO INQUIRY WHETHER PAYMENT WAS MADE BY PAGE | 23 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH ACCOUNT PAYEE CHEQUE OR BY NON-ACCOUNT PAYEE CHEQUES. VIDE PARA 14.3 (G), WHICH IS REPRODUCED BELOW: 14.3(G) FURTHER, WHEN THE CHEQUES WHICH WERE ISSUED CLAIMING TO MAKE PAYMENTS TO M S FABRICS WERE ENQUIRED INTO FURTHER, AND THE DETAILS CALLED FROM THE ISSUING BANK AND THE BANK IN WHICH THESE WERE FINALLY CREDITED; IT WAS FOUND THAT THESE CHEQUES WERE NOT ACCOUNT PAYEE, THESE COULD HAVE BEEN ENDORSED TO ANYBODY ELSE. THIS CLEARLY SHOWS THAT PAYMENT HAS BEEN MADE BY NON-ACCOUNT PAYEE CHEQUES. THIS ALSO SHOWS THAT PAYMENT DOES NOT REACH TO M.S. FABRICS, AS CLAIMED BY THE LD COUNSEL. DURING THE COURSE OF HEARINGS, THE BENCH ASKED LD COUNSEL TO SUBMIT THE BANK STATEMENT TO VERIFY THE FACT THAT WHETHER PAYMENT HAS BEEN MADE BY ACCOUNT PAYEE CHEQUES OR BY NON-ACCOUNT PAYEE CHEQUES TO M.S. FABRICS. HOWEVER, LD COUNSEL FAILED TO SUBMIT THE BANK STATEMENT BEFORE THE BENCH. THE TRIBUNAL IS A FACT FINDING AUTHORITY AND IF THE ASSESSEE DOES NOT PRODUCE THE RELEVANT BANK STATEMENT (EVIDENCE) BEFORE IT, IT IS NOT POSSIBLE TO REACH ON A DEFINITE CONCLUSION. BASED ON THIS FACT, WE ARE OF THE VIEW THAT ASSESSEE HAS FAILED TO PROVE THE GENUINENESS OF THE TRANSACTION. 17. WE NOTE THAT ASSESSEE HAS NOT SHOWN ANY ACCRUED INTEREST AND NO INFORMATION IS AVAILABLE BEFORE US ABOUT TDS DEDUCTED ON ACCRUED INTEREST,( ON SUCH HUGE AMOUNT ). IN THIS REGARD, THE IMPORTANT FINDINGS OF LD CIT(A) ARE REPRODUCED BELOW: 14:3 AS DISCUSSED EARLIER IN THE ORDER THE ASSESSEE TILL RECENTLY WAS FILING HIS RETURN SHOWING PRESUMPTIVE TAXATION U/S. 44AF OF THE ACT. HOW COULD ON THE BASIS OF HUMAN PROBABILITIES IT COULD BE BELIEVED THAT WITH THE TURNOVER OF LESS THAN RS.40 LAKH IN THOSE YEARS, HE WOULD NOT KNOW EVEN THE BASIC DETAILS OF SUCH A BIG CREDITOR. FROM THE STATEMENT ABOVE, IT IS CLEAR THAT HE WENT ON-GIVING UNBELIEVABLE AND DODGING ANSWERS. IT WAS CLEAR THAT HE WAS HIDING THE DETAILS TO AVOID GIVING TRUE STATE OF AFFAIRS. THE FOLLOWING OBSERVATIONS PROVE THIS WITHOUT AN IOTA OF DOUBT: A) THIS WAS THE BIGGEST CREDIT. IT WAS OVER FIVE TIMES THE ANNUAL TURNOVER (LIMIT OF 44AF). CAN IT BE BELIEVED THAT THE PERSON ENGAGED IN BUSINESS DO NOT KNOW EVEN THE NATURE OF TRANSACTIONS OR THE PARTY WITH WHOM SUCH TRANSACTIONS TOOK PLACE RESULTING IN THE CLAIMED HUGE DEBT. B) THE ASSESSEE IN REPLY TO Q. NO. 3 (ABOVE) SAYS THAT ONLY THE ACCOUNTANT KNEW IT AND HE HAS DIED. THE SAID ACCOUNTANT IS CLAIMED TO HAVE INTRODUCED THE PARTY TO THE PAGE | 24 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH ASSESSEE BUT IS IT BELIEVABLE THAT HE WILL NOT EVEN ASK THE NAME OF THE PERSON CONCERNED TO WHOM SUCH HUGE PAYMENTS TO BE MADE. FROM THE ABOVE FINDINGS OF LD CIT(A), IT PROVES THAT TRANSACTIONS WITH M.S FABRICS ARE BOGUS AND HENCE ASSESSEE HAS FAILED TO PROVE THE CREDITWORTHINESS OF THE TRANSACTION. WE NOTE THAT ASSESSEE HIMSELF DOES NOT KNOW ABOUT HIS CUSTOMER, M.S FABRICS. AS PER STATEMENT RECORDED, THE ASSESSEE DOES NOT KEEP WITH HIM ADDRESS, PHONE NUMBER, PAN NUMBER AND IDENTITY OF M.S. FABRICS. SINCE THE ASSESSEE HAS FAILED TO SUBMIT BEFORE US BASIC DOCUMENTS, SUCH AS BANK STATEMENT, ADDRESS, PHONE NUMBER, PAN NUMBER ETC, THEREFORE, THE TRIBUNAL, AS A FACT FINDING AUTHORITY, CANNOT EXPRESS ANY OPINION ON THIS ISSUE. 18.WE NOTE THAT PRIMARY ONUS IS ON THE ASSESSEE TO PROVE THE GENUINENESS OF THE TRANSACTIONS SUPPORTED WITH EVIDENCES. THE EXPRESSION BURDEN OF PROOF REALLY MEANS TWO DIFFERENT THINGS. IT MEANS SOMETIMES THAT A PARTY IS REQUIRED TO PROVE AN ALLEGATION BEFORE JUDGMENT CAN BE GIVEN IN HIS FAVOUR. IT ALSO MEANS THAT ON A CONTESTED ISSUE, ONE OF THE TWO CONTENDING PARTIES HAS TO INTRODUCE EVIDENCE. IN THE FIRST SENSE, IF THE BURDEN IS NOT DISCHARGED, THE PARTY MUST EVENTUALLY FAIL. IN THE SECOND CASE, WHERE THE PARTIES HAVE JOINTED ISSUE AND HAVE LED EVIDENCE AND THE CONFLICTING EVIDENCE CAN BE WEIGHED TO DETERMINE WHICH WAY TO ISSUE CAN BE DECIDED, THE QUESTION OF BURDEN OF PROOF BECOMES AN ABSTRACT QUESTION AND IS THEREFORE ACADEMIC. THE SECTION 101 TO 114 OF INDIAN EVIDENCE ACT, 1872 DEALS WITH BURDEN OF PROOF. THE SECTION 102 OF THE EVIDENCE ACT PROVIDES THAT THE BURDEN OF PROOF LIES ON THAT PARTY WHO WOULD FAIL IF NO EVIDENCE AT ALL WERE GIVEN ON EITHER SIDE. FOR EXAMPLE, WHERE THE ASSESSEE CLAIMS EXEMPTION, THE BURDEN IS ON THE ASSESSEE TO PROVE IT TO BE EXEMPT. SAME IS THE POSITION IN CASE OF ALLOWANCES, DEDUCTIONS, OR CLAIMS OF LOSS, ETC. SIMILARLY, WHERE THERE IS A STATUTORY REBUTTABLE PRESUMPTION AGAINST THE ASSESSEE, AS IN CASE OF CASH CREDITS UNDER SECTION 68 OR UNEXPLAINED INVESTMENT UNDER SECTION 69, THE INITIAL BURDEN OF PROOF IS ON THE ASSESSEE TO SHOW THAT THE CASH CREDIT IS GENUINE OR THE INVESTMENT IS NOT UNEXPLAINED. THE AO SHOULD, THEREFORE, ALWAYS EXAMINE AS TO WHO HAS TO DISCHARGE THE BURDEN OF PROOF. IT MAY PAGE | 25 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH ALSO BE NOTED THAT IN THE COURSE OF ASSESSMENT, THE BURDEN OF PROOF MAY SHIFT FROM ONE TO THE OTHER. FOR INSTANCE, IN THE ASSESSEE`S CASE UNDER CONSIDERATION IF THE ASSESSEE DISCHARGES HIS INITIAL BURDEN OF PROOF, BY SUBMITTING BANK ATATEMENTS, CONFIRMATION OF CREDITORS, PAN NUMBER OF CREDITORS, ADDRESS OF CREDITORS, AND THE PROOF THAT PAYMENT HAS BEEN MADE BY ACCOUNT PAYEE CHEQUES OR NON-ACCOUNT PAYEE CHEQUES TO M.S. FABRICS ETC, THEN AFTER THE ONUS SHIFTS TO THE ASSESSING OFFICER WHO MUST BRING OUT FACTS TO REFUTE ASSESSEES VERSION. WE NOTE THAT IN ASSESSEE`S CASE UNDER CONSIDERATION, THE ASSESSEE HAS FAILED TO DISCHARGE HIS INITIAL BURDEN OF PROOF, AS THE ASSESSEE HAS FAILED TO SUBMIT BANK STATEMENTS, CONFIRMATION OF CREDITORS, PAN NUMBER OF CREDITORS, ADDRESS OF CREDITORS, AND THE PROOF THAT PAYMENT HAS BEEN MADE BY ACCOUNT PAYEE CHEQUES OR NON-ACCOUNT PAYEE CHEQUES TO M.S. FABRICS. EVEN BEFORE THE BENCH, THE LD COUNSEL FAILS TO SUBMIT THE BASIC DOCUMENT, BANK STATEMENT, THEREFORE IT IS NOT POSSIBLE FOR THE BENCH TO FIND THE FACT THAT WHETHER PAYMENT HAS BEEN MADE BY ACCOUNT PAYEE CHEQUES OR NON-ACCOUNT PAYEE CHEQUES. THE LD COUNSEL ALSO ARGUES THAT IN ASSESSMENT YEAR 2011-12, THE ASSESSING OFFICER CANNOT MAKE ADDITION WITHOUT THE AID OF INCRIMINATING MATERIAL. WE NOTE THAT ASSESSMENT YEAR 2011-12 IS AN ABATED ASSESSMENT WHERE ASSESSING OFFICER CAN DO REGULAR SCRUTINY, HENCE PLEA RAISED BY THE LD COUNSEL IS NOT ACCEPTABLE. IT IS WELL ESTABLISHED THAT RES-JUDICATA DOES NOT APPLY TO THE INCOME TAX PROCEEDINGS, WHICH ARE INDEPENDENT FROM EACH OTHER FOR DIFFERENT YEARS. THEREFORE, BASED ON THE FACTUAL POSITION NARRATED ABOVE, WE ARE OF THE VIEW THAT ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE TO PLEAD HIS CASE BEFORE THE ASSESSING OFFICER, HENCE, THE ISSUE SHOULD BE REMITTED BACK TO THE FILE OF THE LD ASSESSING OFFICER FOR FRESH ADJUDICATION, THEREFORE, WE SET ASIDE THE ORDER OF LD CIT(A) AND REMIT THIS ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER FOR DE-NOVO ADJUDICATION. THE ASSESSEE IS DIRECTED TO FURNISH BEFORE ASSESSING OFFICER, THE NECESSARY DOCUMENTS AND EVIDENCES, AS REQUIRED BY HIM. THUS, CONCISE GROUND NO.2 IS ALLOWED FOR STATISTICAL PURPOSES. 19. THE SUMMARIZED AND CONCISE GROUND NO.3 RAISED BY THE ASSESSEE IS REPRODUCED BELOW FOR READY REFERENCE: PAGE | 26 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH (3) CIT(A) HAS NOT DECIDED GROUND NO.5 RAISED BY THE ASSESSEE DURING APPELLATE PROCEEDINGS: INCOME DISCLOSED DURING THE COURSE OF SEARCH TO THE TUNE OF RS.5,35,75,000/- SHOULD BE TREATED AS BUSINESS INCOME AND NOT INCOME FROM OTHER SOURCES. AO TREATED IT AS INCOME FROM OTHER SOURCES WHEREAS ASSESSEE CLAIMS THAT IT IS BUSINESS INCOME. 20. WE HAVE HEARD BOTH THE PARTIES. WE NOTE THAT LD CIT(A), DURING THE APPELLATE PROCEEDINGS, ADJUDICATED THE ISSUE UNDER CONSIDERATION, AS FOLLOWS: 15. THE GROUND NO. 5 OF APPEAL IN A.Y. 2011-12 IS AGAINST THE AO TREATING THE INCOME OF RS.5,35,75,000/- DECLARED AS INCOME FROM BUSINESS, TO BE ACTUALLY TAXABLE AS INCOME FROM OTHER SOURCES. I HAVE FOUND THAT THIS GROUND OF APPEAL IS ONLY ACADEMIC AS IT HAS GOT NO BEARING ON THE DETERMINATION OF TOTAL INCOME AND TAX. THE GROUND OF APPEAL IS THEREFORE, NOT BEING DECIDED. FROM THE ABOVE, IT IS CLEAR THAT LD CIT(A) HAS NOT ADJUDICATED THE ISSUE RAISED BY THE ASSESSEE. 21. THE CRUX OF THE CONTROVERSY IS THAT WHETHER INCOME DISCLOSED DURING SEARCH OF RS.5,35,75,000/-, FALLS UNDER THE HEAD I NCOME FROM OTHER SOURCES OR UNDER THE HEAD INCOME FROM BUSINESS . WE NOTE THAT DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS ISSUED SHOW CAUSE NOTICE TO THE ASSESSEE TO EXPLAIN THE NATURE OF DISCLOSURE OF RS.5,35,75,000/-, WHETHER IT FALLS UNDER THE HEAD INCOME FROM OTHER SOURCES OR UNDER THE HEAD INCOME FROM BUSINESS , WHICH IS REPRODUCED BELOW: 'Q(9) DURING THE SEARCH PROCEEDINGS', PAGES 75 TO 85, OF ANNEXURE BS-3 WAS FOUND & SEIZED AT YOUR RESIDENTIAL PREMISES W.R.T LAND AT BHARTHANA (VESU), R.S. NO.50/1, BLOCK NO.148, AREA ADMEASURING 9200 SQ. YARD. THESE PAGES WERE RELATED TO THE KARAR YANE LEAKH DATED 17.09.2010 BETWEEN AMIT V. SHAH AS THE PURCHASER AND KISHORBHAI ISHWARBHAI PATEL & OTHERS AS THE SELLERS. THE SALE CONSIDERATION OF THE ABOVE LAND AS PER THIS SEIZED DOCUMENT IS STATED TO BE DECIDED AT RS.29,007/- PER SQ. YARD, THUS THE TOTAL CONSIDERATION AS PER THE ABOVE AGREEMENT COMES TO RS.26,68,64,400/-. AS PER THE SATAKHAT PARA, NO.4, THE PURCHASER HAS PAID RS.6,00,00,000/-IN CASH AND CHEQUE TILL THE DATE OF SATAKHAT, & 17.09.2010 & AS PER THE SATAKHAT, ON THE DATE OF SATAKHAT RS.50,00,000/- CASH -WAS PAID TO THE SELLER. FURTHER ON 09.10.2010, RS.50,00,000/- CASH TO BE PAID AND ON 15.01.2011 CASH OF RS.10,00,000/- TO BE PAID. AMIT K SHAH IN HIS STATEMENT U/S 132(4) HAS ACCEPTED THAT THE ABOVE AGREEMENT WAS MADE BY HIM AND SIGNATURE AND PHOTOGRAPH ALSO PERTAINS TO HIM. HE FURTHER ACCEPTED ON 17.10.2010 HE HAS MADE THE ABOVE SATAKHAT FOR THE PURCHASE OF ABOVE MENTIONED LAND FROM THE SELLER. HE ALSO ACCEPTED THAT HE HAS PAID RS.6,00,00,000/- BEFORE THE DATE OF SATAKHAT IN CASH AND CHEQUE .OUT OF THE ABOVE RS.6,00,00,000/- HE HAS PAID RS.1,74,25,000/- THROUGH CHEQUES AND BALANCE OF RS.4,25,75,000/- WAS PAID IN CASH. HE FURTHER ACCEPTED THAT HE HAS PAID RS.50,00,000/- CASH ON THE DATE OF SATAKHAT, I.E. 17.09.2010. HE ALSO ACCEPTED THAT HE HAS PAID CASH OF RS.50,00,000/- ON 09.10.2010 AND RS.10,00,000/- ON 15.01.2011 AS PER THE PAYMENT SCHEDULE OF THE SATAKHAT. THUS HE ACCEPTED THAT AS PER THE PAYMENT SCHEDULE OF SATAKHAT HE HAS MADE PAYMENT OF RS.7,10,00,000/- TO THE SELLER OF THE LAND UNDER CONSIDERATION. AFTER THAT AMIT V. SHAHJIAS VOLUNTARILY MADE DISCLOSURE OF RS.5,35,75,000/- AS HIS UNDISCLOSED PAGE | 27 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH INCOME . FOR THE F.Y. 2010-11 (A.Y 2011-12) WHICH IS OVER AND ABOVE HIS REGULAR INCOME & FILED AN AFFIDAVIT DATED 08.04.2013, IN WHICH HE HAS CONFIRMED THE DISCLOSURE OF RS.5,35,75,000/- MADE BY HIM. PERUSAL OF RETURN OF INCOME FILED SHOWS, THAT YOU HAVE TREATED THESE UNEXPLAINED INVESTMENT WHICH HAS BEEN DECLARED ONLY AFTER SEARCH & SEIZURE PROCEEDINGS U/S 132 OF IT ACT, AS PART OF ADDITION IN BUSINESS INCOME U/S 28 TO 44DA && CLAIMED FOLLOWING DEDUCTION & ADJUSTMENT AGAINST BUSINESS LOSSES FOR A.Y 2008-09 &A.Y 2009-10.ASSESSEE WAS ASKED BY Q.4 OF ANNEXURE TO SUMMONS U/S 131 DATED 23/06/2014 QUESTION W.R.T THIS TRANSACTION RELATED TO SEIZED PAPERS FOUND & SEIZED DURING SEARCH & SEIZURE ACTION U/S 132 ON 27/12/2012 AT PAGES 75 TO 85, OF ANNEXURE BS-3 . SINCE NO REPLY WAS FILED BY THE ASSESSES, A SHOW CAUSE NOTICE GIVING LAST & FINAL OPPORTUNITY WAS SERVED ON ASSESSEE BY LETTER DATED 15-09-2014. IN SPITE OF THIS, TILL TODAY, ASSESSEE HAS NOT FILED ANY DETAILS OR ASSESSEE'S SAY ON THIS MATTER. BY THE EVIDENCE FOUND & SEIZED DURING PROCEEDINGS U/S 132 OF INCOME TAX. IT IS PROVED BEYOND DOUBT THAT, ASSESSEE HAVE PAID CASH OF RS5,35,75,000/- WHICH WAS NEITHER PART OF HIS ORIGINAL BOOKS OF ACCOUNT W.R.T TO WHICH ORIGINAL RETURN INCOME WAS FILED & NOR PART OF HIS REGULAR INCOME OR BUSINESS STATEMENT FILE WITH HIS ORIGINAL RETURN OF INCOME. 8.2 ASSESSEE HERE WITH SHOW CAUSED TO EXPLAIN : A) WHY THIS DECLARED UNEXPLAINED MONEY OF RS.5,35, 75,000/-, WHICH WERE OUT OF YOUR BOOKS OF ACCOUNT & WERE USED FOR MAKING PAYMENTS TO THE SELLER KISHORBHAI ISHWARBHAI PATEL & OTHERS FOR PURCHASE OF LAND, SHOULD NOT BE TREATED AS UNEXPLAINED INVESTMENT U/S 69A & TREATED AS INCOME UNDER HEAD INCOME FROM OTHER SOURCES. B) WHY THE CLAIM MADE BY YOU FOR TREATING THIS RS.5,35,75,000/-, AS PART OF ADDITION IN BUSINESS INCOME U/S 28 TO 44DA SHOULD NOT BE REJECTED & DISALLOWED , AND TREATED AS 'INCOME FROM OTHER SOURCES.' WHY THE CLAIM OF ADJUSTMENT OF YOUR BUSINESS LOSSES OF RS.20,71,742 OF A. Y 2008-09 & BUSINESS LOSSES OF RS 3,89,01,637 OF A.Y 2009-10 SHOULD NOT ALLOWED TO BE ADJUSTED AGAINST RS 5,35,75,000/-FROM UNEXPLAINED SOURCE . 22. IN RESPONSE TO THE ABOVE SHOW CAUSE NOTICE, THE ASSESEE HAS FILED THE FOLLOWING REPLY BEFORE THE ASSESSING OFFICER: '............ ...NOW YOUR GOODSELF HAS SHOW CAUSED TO EXPLAIN WHY THE CLAIM OF THE ASSESSEE TREATING RS.5,35,75,000/- AS A PART OF ADDITION OF INCOME U/S 28 TO 44DA SHOULD NOT BE REJECTED AND DISALLOWED AND HENCE THE SAME BE TREATED UNEXPLAINED INVESTMENT U/S 69A UNDER THE HEAD INCOME FROM OTHER SOURCES. IN THIS REGARD, IT IS STATED THAT THE ADDITIONAL DISCLOSURE BUSINESS INCOME HAS BEEN EARNED OUT OF REAL ESTATE TRANSACTIONS BY WAY OF BROKERAGE OR PROFIT AS MEDIATOR. HENCE, THE ADDITION AS BUSINESS INCOME U/S 28 TO 44DA IS VALID AND NO ADVERSE INFERENCE SHOULD BE DRAWN.' 23. FROM THE ABOVE REPLY OF THE ASSESSEE, IT IS ABUNDANTLY CLEAR THAT ADDITIONAL DISCLOSURE OF RS.5,35,75,000/- IS BUSINESS INCOME AND HAS BEEN EARNED OUT OF REAL ESTATE TRANSACTIONS BY WAY OF BROKERAGE OR PROFIT AS MEDIATOR . PAGE | 28 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH 24. DURING THE COURSE OF HEARING, THE LD COUNSEL SUBMITTED BEFORE US WRITTEN SUBMISSIONS. THE IMPORTANT PART OF THE WRITTEN SUBMISSIONS OF LD COUNSEL ( WHICH IS RELEVANT FOR OUR ANALYSIS) IS REPRODUCED BELOW: .(J)THE ASSESSEE ADMITTED THE ABOVE UNDISCLOSED INCOME ON THE BASIS OF AGREEMENT TO PURCHASE DATED 17-09-2010 ( COPY AVAILABLE AT PAGES NO. 73 TO 82 OF THE PAPER BOOK ) EXECUTED BY THE ASSESSEE TO PURCHASE THE LAND ADMEASURING 4600 SQ.YARD I.E. 41400 SQ.FEET FOR HIS BUSINESS OF DEALING IN REAL ESTATE. YOUR HONOURS' WOULD APPRECIATE THAT A PERSON WOULD NOT ACQUIRE SUCH BIG PLOT OF LAND AT THE OUT SKIRT OF THE CITY I.E. AT BHARTHANA FOR HIS PERSONAL PURPOSES MORE SO WHEN THE CONCERNED PERSON IS CARRYING ON THE BUSINESS OF DEALING REAL ESTATES. (K) THE ENGLISH VERSION OF CONDITION NO. 3 IN THE AGREEMENT TO PURCHASE READS AS UNDER: '......... THE PARTY OF THE SECOND PART SHALL BE GIVEN PERMISSION TO COMMENCE THE BOOKING ON THE PORTION OF LAND BELONGING TO HIS PART.' THE ABOVE CONDITION ALSO ESTABLISHES THAT THE CONCERNED LAND WAS ACQUIRED BY THE ASSESSEE FOR THE PURPOSE OF HIS REAL ESTATE BUSINESS. (I) FROM THE QUESTIONS AND ANSWERS NO. 9 AND 10 OF THE STATEMENT OF THE ASSESSEE RECORDED U/S 131 OF THE ACT ON 02-04-2013 (COPY WHEREOF IS AVAILABLE AT PAGES NO. 40 TO 48 OF THE PAPER BOOK). YOUR HONOURS' WOULD FIND THAT THE ASSESSEE ADMITTED THE UNDISCLOSED INCOME OF RS.5,35,75,000/- ON ACCOUNT OF ON MONEY PAID BY THE ASSESSEE FOR ACQUISITION OF ABOVE LAND FOR REAL ESTATE BUSINESS FOR WHICH THE AGREEMENT TO PURCHASE DATED 17-09-2010 WAS EXECUTED. THUS, IT CLEARLY EMERGES THAT FOR THE PURPOSE OF ACQUISITION OF BUSINESS ASSETS THE 'ON MONIES' WERE PAID BY THE ASSESSEE FOR WHICH THE ADMISSION OF UNDISCLOSED INCOME OF RS.5,35,75,000/- WAS MADE BY THE ASSESSEE. 25. WE OBSERVE THAT DURING THE ASSESSMENT STAGE THE ASSESSEE HAD ADMITTED THAT HE HAS EARNED UNDISCLOSED INCOME OF RS.5,35,75,000/- OUT OF REAL ESTATE TRANSACTIONS BY WAY OF BROKERAGE OR PROFIT AS MEDIATOR, VIDE PARA NO.22 OF THIS ORDER, WHEREIN WE HAVE REPRODUCED THE ASSESSEE`S SUBMISSIONS WHICH WERE MADE BEFORE THE ASSESSING OFFICER. 26. ON APPEAL, LD CIT(A) DID NOT ADJUDICATE THIS ISSUE. ON FURTHER APPEAL BY ASSESSEE BEFORE THIS TRIBUNAL, THE LD COUNSEL SUBMITTED BEFORE US THAT ABOVE UNDISCLOSED INCOME WAS DISCLOSED BY THE ASSESSEE ON THE BASIS OF AGREEMENT TO PURCHASE DATED 17-09-2010 (COPY AVAILABLE AT PAGES NO. 73 TO 82 OF THE PAPER PAGE | 29 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH BOOK) EXECUTED BY THE ASSESSEE TO PURCHASE THE LAND ADMEASURING 4600 SQ.YARD I.E. 41400 SQ.FEET FOR HIS BUSINESS OF DEALING IN REAL ESTATE. 27. WE NOTE THAT BEFORE THE ASSESSING OFFICER, THE ASSESSEE TOOK THE STAND THAT UNDISCLOSED INCOME OF RS.5,35,75,000/-IS OUT OF REAL ESTATE TRANSACTIONS BY WAY OF BROKERAGE OR PROFIT AS MEDIATOR, HOWEVER, BEFORE THE BENCH, THE LD COUNSEL EXPLAINED THAT UNDISCLOSED INCOME OF RS.5,35,75,000/- IS PERTAINING TO PURCHASE OF LAND, AS NOTED BY US ABOVE. DURING THE COURSE OF HEARING, THE BENCH ASKED THE LD COUNSEL TO EXPLAIN THE REASONS THAT HOW AND WHY THE ASSESSEE HAS CHANGED HIS STAND TO EXPLAIN THE NATURE OF UNDISCLOSED INCOME OF RS.5,35,75,000/-. IN RESPONSE, THE BENCH DID NOT GET ANY ACCEPTABLE REPLY FROM THE LD COUNSEL. 28.WE NOTE THAT PURCHASE AGREEMENT DATED 17-09-2010, HAS NEITHER BEEN EXAMINED BY ASSESSING OFFICER NOR BY LD CIT(A). DURING THE COURSE OF SEARCH, THE SEARCH TEAM HAS FOUND DIARY, OTHER LOOSE PAPERS, AND STATEMENT OF THE ASSESSEE WAS ALSO TAKEN BY THE SEARCH TEAM, ALL THESE RELEVANT MATERIAL WOULD HELP THE ASSESSING OFFICER TO DECIDE THE NATURE OF SAID UNDISCLOSED INCOME OF RS.5,35,75,000/-. THEREFORE, WE REMIT THIS ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER TO EXAMINE THE PURCHASE AGREEMENT OF LAND, STATEMENT OF ASSESSEE UNDER SECTION 131, AND OTHER NECESSARY DOCUMENTS DECIDE THE NATURE OF UNDISCLOSED INCOME OF RS.5,35,75,000/-, WHETHER IT IS BUSINESS INCOME OR INCOME UNDER OTHER SOURCES. THUS, SUMMARIZED AND CONCISE GROUND NO.3 RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 29. BEFORE PARTING, WE WOULD LIKE TO MENTIONED THAT LD COUNSEL HAS RAISED ADDITIONAL GROUNDS OF APPEALS IN RESPECT OF UNDISCLOSED INCOME OF RS.5,35,75,000/- WHICH IS REPRODUCED BELOW: ADDITIONAL GROUNDS OF APPEALS BEFORE THE HON'BLE ITAT (1) THE LD. A.O. HAS ERRED IN LAW AND ON FACTS IN TREATING THE INCOME DISCLOSED DURING SEARCH OF RS.5,35,75,000/- AS INCOME FROM OTHER SOURCES AS AGAINST THE BUSINESS INCOME TREATED BY THE ASSESSEE IN ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. (2) THE LD. A.O. HAS ERRED IN LAW AND ON FACTS IN TREATING THE INCOME DISCLOSED DURING SEARCH OF RS.5,35,75,000/- AS INCOME FROM OTHER SOURCES AS AGAINST BUSINESS INCOME TREATED BY THE ASSESSEE. PAGE | 30 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH 30.WE NOTE THAT IN ADDITIONAL GROUND NO.1, LD COUNSEL STATED THAT WITHOUT INCRIMINATING MATERIAL THE UNDISCLOSED INCOME OF RS.5,35,75,000/- CANNOT BE TREATED UNDER THE HEAD INCOME FROM OTHER SOURCES. WE NOTE THAT ON UNDISCLOSED INCOME OF RS.5,35,75,000/-, THE ASSESSEE HAS PAID THE TAXES. NOW THE CRUX OF THE CONTROVERSY IS THAT WHETHER INCOME DISCLOSED DURING SEARCH OF RS.5,35,75,000/-, FALLS UNDER THE HEAD INCOME FROM OTHER SOURCES OR UNDER THE HEAD INCOME FROM BUSINESS, AND THE SAME SHOULD BE DECIDED BY THE ASSESSING OFFICER BASED ON THE PURCHASE AGREEMENT OF LAND, STATEMENT OF ASSESSEE UNDER SECTION 131, AND OTHER NECESSARY DOCUMENTS. WE HAVE ALREADY DIRECTED THE ASSESSING OFFICER IN OUR ABOVE PARA, THEREFORE, ADDITIONAL GROUNDS RAISED BY THE LD COUNSEL BECOME INFRUCTUOUS AND HENCE DO NOT REQUIRE ADJUDICATION. 31. THE CONCISE GROUND NO.4 RAISED BY ASSESSEE IS REPRODUCED BELOW FOR READY REFERENCE: (4) THE LD COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER OF MAKING DISALLOWANCES UNDER SECTION 14A OF THE ACT. (I) FOR AY.2012-13: AO MADE ADDITION OF RS.10,09,371/- U/S. 14A OF THE ACT. (ABATED ASSESSMENT) (II)FOR AY.2013-14: AO MADE ADDITION OF RS.6,62,609/- U/S 14A OF THE ACT.(ABATED ASSESSMENT) 32.IN ORDER TO ADJUDICATE THIS GROUND, WE TAKE LEAD CASE IN ITA NO.199/AHD/2017 FOR AY.2012-13. 33. BRIEF FACTS QUA THE ISSUE ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE WAS ASKED TO FILE THE DETAILS REGARDING DIVIDEND INCOME VIDE AO LETTER DATED 13-01-2015. THE SAME IS REPRODUCED BELOW: YOU HAVE CONSIDERED YOUR SHARES IN HAND AS BUSINESS STOCK & CLAIMED EXEMPT INCOME FROM THE RECEIPTS OF DIVIDEND INCOME FROM THESE SHARES. FURTHER THE UNSECURED LOANS ARE TAKEN FOR THE PURCHASE OF SHARES & INTEREST EXPENSES IS CLAIMED AGAINST THE BUSINESS INCOME. THESE INTEREST EXPENSES ARE ALSO DIRECTLY RELATED & ATTRIBUTABLE TO EARNING OF EXEMPT DIVIDEND INCOME. YOUR ATTENTION IS BROUGHT TO SECTION 14A OF I.T. ACT, WHICH IS REPRODUCED BELOW: PAGE | 31 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH 14A [(I)] FOR THE PURPOSES OF COMPUTING THE TOTAL INCOME TINDER THIS CHAPTER, NO DEDUCTION SHALL BE ALLOWED IN RESPECT OF EXPENDITURE INCURRED BY THE ASSESSES IN RELATION TO INCOME WHICH DOES NOT FORM PART OF THE TOTAL INCOME UNDER THIS ACT.] YOU ARE HEREWITH SHOW CAUSED TO EXPLAIN, WHY THE INTEREST EXPENSES IN PROPORTIONATE TO THE TAXABLE BUSINESS & EXEMPT DIVIDEND INCOME SHOULD NOT BE DISALLOWED AS EXPENSES U/S 14A.YOU ARE HERE WITH ALSO GIVEN OPPORTUNITY TO GIVE 'WITHOUT PREJUDICED' CALCULATION OF INTEREST EXPENSES ATTRIBUTABLE TO EXEMPT DIVIDEND INCOME. 34.IN RESPONSE THE ASSESSEE HAS FILED DETAILS AND WORKING OF THE DISALLOWANCE UNDER SECTION 14A OF THE ACT, WHICH IS REPRODUCED BELOW: WORKING OF DISALLOWANCE U/S 14A AS PER RULE 8D S . NO PARTICULARS AMOUNT(RS) AMOUNTS (RS) I. DIRECT EXPENDITURE RELATING TO EXEMPT INCOME NIL NIL 2. AMOUNT COMPUTED AS PER RULE 8D(2)(II)(A)(B)(C) WHERE A= INTEREST EXPENSE B= AVERAGE INVESTMENTS C=AVERAGE TOTAL ASSETS 72,80,513 1,72,49,731 13,60,45,828 9,23,122 3 AMOUNT COMPUTED AS PER RULE 8D(2)(III) (0.5% OF AVERAGE VALUE OF INVESTMENT) 1,72,49,731 86,249 TOTAL DISALLOWANCE AS PER RULE 8D (1+2+3) RS.10,09,371 35. THE ASSESSING OFFICER HAS GONE THROUGH THE ABOVE WORKING OF DISALLOWANCE AS PER RULE 8D OF THE RULES READ WITH SECTION 14A OF THE ACT AND ACCEPTED THE SAME AND ACCORDINGLY, MADE ADDITION OF RS.10,09,371/- U/S 14A OF THE I.T. ACT. 36.ON APPEAL, LD CIT(A) HAS CONFIRMED THE ACTION OF THE ASSESSING OFFICER. 37. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US. 38.THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED BEFORE US THAT DURING THE YEAR UNDER CONSIDERATION, ASSESSEE HAS EARNED DIVIDEND INCOME OF RS.9,91,817/- WHICH IS CLAIMED AS EXEMPT U/S 10(34) OF THE ACT, BUT NO EXPENDITURE HAS BEEN INCURRED IN RELATION TO SUCH INVESTMENT IN SHARES OF INDIAN COMPANY, THEREFORE ENTIRE ADDITION MADE BY THE ASSESSING OFFICER MAY BE DELETED. 39. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE HAS PRIMARILY REITERATED THE STAND TAKEN BY THE ASSESSING OFFICER, WHICH WE HAVE ALREADY TAKEN IN OUR EARLIER PARA AND IS NOT BEING REPEATED FOR THE SAKE OF BREVITY. PAGE | 32 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH 40. WE HAVE HEARD BOTH THE PARTIES. WE NOTE THAT HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS RELIANCE UTILITIES AND POWER LTD. (2009) 313 TR 340 (BOM) AND CIT VS HDFC BANK LTD (2014) 49 TAXMANN.COM 335 (BOM) THAT WHERE INTEREST FREE FUNDS AND OVERDRAFT AND LOANS TAKEN ARE AVAILABLE WITH AN ASSESSEE, THEN A PRESUMPTION WOULD ARISE THAT THE INVESTMENTS WOULD BE OUT OF THE INTEREST FREE FUNDS GENERATED OR AVAILABLE WITH THE ASSESSEE, IF THE INTEREST FREE FUNDS WERE SUFFICIENT TO MEET THE INVESTMENTS. THE AFORESAID VIEW HAS BEEN FOLLOWED BY THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF PRINCIPAL CIT VS RASOI LTD. IN ITAT O.109 OF 2016 IN GA NO.633 OF 2016 JUDGMENT DATED 15.02.2017. IN VIEW OF THE AFORESAID LEGAL POSITION, IF THE ASSESSEE HAD ENOUGH OWN FUNDS WHICH WAS MORE THAN THE INVESTMENTS WHICH YIELDED TAX FREE INCOME THERE CAN BE NO DISALLOWANCE OF INTEREST EXPENSES IN TERMS OF RULE 8D(2)(II) OF THE RULE. AS FAR AS RULE 8D(2)(III) OF THE RULES IS CONCERNED IT HAS BEEN HELD BY THE ITAT KOLKATA BENCH IN THE CASE OF DCIT VS REI AGRO LTD. IN ITA NO.1811/KOL/2012 DATED 14.05.2013 THAT IT IS ONLY THE INVESTMENT WHICH YIELDED TAX FREE INCOME THAT SHOULD BE CONSIDERED FOR WORKING OUT THE AVERAGE VALUE OF INVESTMENT WHILE APPLYING THE RULE 8D(2)(III) OF THE RULES. THIS ORDER OF THE TRIBUNAL HAS BEEN CONFIRMED BY THE DECISION OF HONBLE CALCUTTA HIGH COURT IN G.A. NO.3022 OF 2013 JUDGEMENT DATED 23.12.2013. IT HAS ALSO BEEN HELD BY THE HONBLE DELHI HIGH COURT IN THE CASE OF CHEMINVEST LTD VS CIT (2015) 378 ITR 33 (DEL) THAT WHEN THERE IS NO EXEMPT INCOME THEN THERE CAN BE NO QUESTION OF DISALLOWANCE U/S 14A OF THE ACT. THE HONBLE SUPREME COURT IN THE CASE OF MAXOPP INVESTMENT,402 ITR 640 (SC), WHEREIN IT WAS HELD THAT WHEN THE SHARES ARE HELD AS 'STOCK-IN-TRADE', CERTAIN DIVIDEND IS ALSO EARNED, THOUGH INCIDENTALLY, WHICH IS ALSO AN INCOME. HOWEVER, BY VIRTUE OF SECTION 10(34), THIS DIVIDEND INCOME IS NOT TO BE INCLUDED IN THE TOTAL INCOME AND IS EXEMPT FROM TAX. THIS TRIGGERS THE APPLICABILITY OF SECTION 14A WHICH IS BASED ON THE THEORY OF APPORTIONMENT OF EXPENDITURE BETWEEN TAXABLE AND NON-TAXABLE INCOME. THEREFORE, TO THAT EXTENT, DEPENDING UPON THE FACTS OF EACH CASE, THE EXPENDITURE INCURRED IN ACQUIRING THOSE SHARES WILL HAVE TO BE APPORTIONED. PAGE | 33 IT(SS)A.197 TO 200/AHD/2017 AY.2009-10,2011-12 TO 2013- 14 AMITBHAI VASANTLAL SHAH WE NOTE THAT ASSESSING OFFICER HAS NOT WORKED OUT THE DISALLOWANCE AS PER THE ABOVE JUDICIAL PRONOUNCEMENTS. IN THE LIGHT OF THE JUDICIAL PRONOUNCEMENTS, AS NOTED ABOVE, WE ARE OF THE VIEW THAT THIS ISSUE SHOULD ALSO BE REMITTED BACK TO THE FILE OF THE LD ASSESSING OFFICER TO ADJUDICATE THE SAME IN THE LIGHT OF THE JUDICIAL PRONOUNCEMENTS. THEREFORE, WE DIRECT THE ASSESSING OFFICER TO REWORK THE DISALLOWANCE IN THE LIGHT OF THE ABOVE JUDICIAL PRONOUNCEMENTS. THE ASSESSEE IS DIRECTED TO SUBMIT THE BALANCE SHEET, INTEREST RECEIVED, INTEREST PAID DETAILS, AND DETAILS OF EXEMPT INCOME BEFORE THE ASSESSING OFFICER. THE CONCISE GROUND NO.4 RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 41. IN THE RESULT, APPEALS FILED BY THE ASSESSEE IN IT(SS)A NOS.197/AHD/2017, 198/AHD/2017, 199/AHD/2017, 200/AHD/2017 FOR AY.2009-10, 2011-12, 2012- 13 & 2013-14, ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES, AS INDICATED ABOVE. ORDER IS PRONOUNCED ON 27/09/2021 BY PLACING RESULT ON NOTICE BOARD. SD/- SD/- (PAWAN SINGH) (DR. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER LWJR /SURAT / DATE: 27/09/2021/ SAMANTA COPY OF THE ORDER FORWARDED TO 1. THE ASSESSEE 2. THE RESPONDENT 3. THE CIT(A) 4. PR. CIT 5. DR/AR, ITAT, SURAT 6. GUARD FILE BY ORDER //TRUE COPY// ASSISTANT REGISTRAR/SR. PS/PS ITAT, SURAT