ITO 19(3)(4), MUMBAI V. SHUBHADA ALATE, MUMBAI

ITSSA 2/MUM/2011

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0462 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 8 month(s) 24 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 29-10-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 18-08-2014
• Assessment Year: misc
• Appeal Filed On: 04-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C PATNAIK
• Assessee Lawyers: NEELAM C JADHAV; DR K SHIVRAM MR AJAY R SINGH
• Keywords: Document seized; Additional evidence; Block assessment; Documents seized

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL H , BENCH MUMBAI , BEFORE : SHRI R.C.SHARMA , A M & SHRI SANJAY GARG, J M IT(SS)A NO. 2 /MUM/20 11 (BLOCK PERIOD ENDING ON 14.11.2000 ) ITO - 19(3)(4), MUMBAI - 400 012 VS. MS. SHUBHADA ALATE, JEEVAN KIRAN, PLOT NO.558A, 1 ST FLOOR, S.V.ROAD, BANDRA (W), MUMBAI - 400 050 PAN/GIR NO. : A C YPA 1449 B ( APPELLANT ) .. ( RESPONDENT ) /REVENUE BY : SHRI K.C.PATNAIK /ASSESSEE BY : DR.K.SHIVRAM, MR.AJAY R.SINGH & MS. NEELAM C. JADHAV DATE OF HEARING : 1 7 TH SEPT , 201 4 DATE OF PRONOUNCEMENT : 29 TH OCT., 201 4 O R D E R PER R.C.SHARMA ( A .M.) : TH IS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A ) , DATED 8 - 11 - 2010 FOR THE BLOCK PERIOD ENDING ON 14 - 11 - 2000 (ASSESSMENT YEARS 1991 - 92 TO 2000 - 01 AND UPTO 14 - 11 - 2000) . 2 . THE SOLITARY GROUND TAKEN BY THE REVENUE READS AS UNDER : - 1. O N THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) TO RIGHT IN HOLDING THAT TRANSACTIONS APPEARING IN T HE SEIZED DOCUMENTS AT RS. 1,50,42,586/ - IS ON ACCOUNT OF TRANSACTIONS ON BEHALF OF CLIENTS IN THE CAPACITY OF SUB - BROKER WHICH WAS REJECTED BY THE AO, IGNORING THE FACT THAT THE PRIMARY ONUS IS ON THE ASSESSEE TO PROVE THAT SHE IS IN THE BUSINESS OF SUB - BR OKING AND IS NOT INVESTOR HERSELF. 2) THE APPELLANT PRAYS THAT THE ORDER OF CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE AO BE RESTORED. IT (SS) A NO. 2 / 1 1 2 3 . R IVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. FACTS IN BRIEF ARE THAT SEARCH OPERATION IN CAS E OF M/S EKTA EXPORTS (SATISH CHOWDHARY GROUP) WAS CARRIED OUT ON 14 - 11 - 2000. THE ASSESSMENT U/S.158BC IN CASE OF M/S EKTA EXPORTS WAS COMPLETED IN NOVEMBER 2002. DURING THE ASSESSMENT PROCEEDINGS IN CASE OF M/S EKTA EXPORTS IT WAS STATED BY THE REPRESENTA TIVE OF CHOWDHARY GROUP THAT THE SAUDA BOOK SEIZED AS PER ANNEXURE - A/3 DURING SEARCH BELONGED TO SUBHAD A ALATE WHO WAS THEIR EMPLOYEE AND WAS ALSO DOING SHARE BROKING BUSINESS. SUBHAD A ALATE ALSO CONFIRMED THE ABOVE FACT DURING THE COURSE OF ASSESSMENT P ROCEEDINGS BEFORE THE AO OF M/S EKTA EXPORTS. ACCORDINGLY, THE AO OF M/S EKTA EXPORTS SENT THE INTIMATION TO THE AO OF THE ASSESSEE SUBHAD A ALATE VIDE LETTER DATED 17 - 7 - 2003 AND THEREAFTER THE NOTICE U/S.158BD WAS ISSUED ON 18 - 4 - 2006 TO SUBHAD A ALATE. 4 . DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE AO ASKED THE ASSESSEE TO EXPLAIN THE DOCUMENTS SEIZED AS PER ANNEXURE A - 3 CONTAINING 282 LOOSE SHEETS. IT WAS SUBMITTED THAT THESE WERE ROUGH NOTINGS OF PURCHASE AND SALES ORDERS [SAUDA BOOK) RECEIVED BY HER FROM HER CLIENTS AS SHE WAS ALSO DOING SUB - BROKER SHIP IN HER PROPRIETARY CONCERN IN NAME AND STYLE OF SUBH INVESTMENTS DURING THE YEAR 1994 AND 1995. IT WAS STATED T HAT ENTRI ES MARKED AS (+) REPRESENT PURCHASES AND THOSE MARKED AS ( - ) RE PRES ENTS SA LES ORDERS PLACED BY THE CLIENTS, IT WAS ALSO ST ATED THAT THE ENTRIES WHICH ARE ENCIRCLED BY PEN ARE THE ORDERS FROM CLIENTS FOR SALE OR PURCHASE WHICH WERE FINALLY MATERIALIZED AND THE ONES WHICH ARE NOT ENCIRCLED ARE THE ORDERS WHICH COULD NOT BE EXECUTE D AS PER THE RATES GIVEN BY THE CLIENTS, ACCORDINGLY THE ASSESSEE COMPUTED HER IT (SS) A NO. 2 / 1 1 3 BROKERAGE INCOME AT RS 23,016 FOR FY 94 - 95 AND RS 2,759 FOR FY 95 - 96 @ 0,5% ON THE TRANSACTION WHICH MATERIALIZED AT RS. 1,15,08,002 FOR PERIOD OCTOBER 94 TO MARCH 9 5 ) AND RS 13, 79,572 FOR THE PERIOD APRIL 9 5 ,TO JUNE, 95, AFTER - DEDUCTING THE EXPENSES @30 % OF GROSS BROKERAGE INCOME. THE ASSESSEE ALSO GAVE THE DETAILS OF THE BROKERS FOR WHOM SHE WAS ACTING AS SUB - BROKER. THE ASSESSEE HOWEVER FILED BLOCK RETURNS SHOWING NIL UNDISCLOS ED INCOME, THE AO DID NOT ACCEPT THE CONTENTIONS OF THE ASSESSEE THAT THE TRANSACTIONS NOTED ON THE LOOSE SHEETS WERE IN RESPECT OF THE SALE/PURCHASES OF SHARES DONE BY ASSESSEE ON SUB - BROKERAGE BASIS FOR CLIENTS ON FOLLOWING GROUNDS : - 1. THAT THE ASSESSE E HAS NOT PROVIDED SUPPORTING OR DOCUMENTARY EVIDENCE TO PROVE THAT SHE WAS CONDUCTING SUB - BROKER SHIP BUSINESS. 2. THAT ASSESSEE COULD NOT FURNISH COPIES OF BANK A/C FOR VERIFICATION. 3. THAT THE BROKERS FOR WHOM THE ASSESSEE WAS ACTING AS SUB - BROKER, HAD DENIED ANY TRANSACTION WITH THE ASSESSEE. THE AO CONSIDERED ONLY THOSE ENTRIES MARKED AS ( - ) AND CIRCLED AS PER THE ANNEXURE A - 3 AS SALES OF THE ASSESSEE ITSELF AND NOT MADE ON BEHALF OF THE CLIENTS AND ACCORDINGLY MADE ADDITION OF RS. 1,50,42,586 WHICH I S GROSS RECEIPTS ON ACCOUNT OF SALE FOR AY 95 - 96 & 96 - 97 IN THE BLOCK ASSESSMENT. 5 . BY THE IMPUGNED ORDER THE CIT(A) DELETED THE ADDITION AFTER CALLING THE REMAND REPORT AND RECORDING THE FOLLOWING FINDINGS : - 4.3 I HAVE CONSIDERED THE ARGUMENTS OF THE L D AR AND PERUSED THE SEIZED ANNEXURE A - 3 AND ALSO PERUSED THE ASSESSMENT ORDER AND THE REMAND REPORT OF THE AO . EVEN UNDER RULE 6F(S) THE REQUIREMENT TO RETAIN THE SPECIFIED BOOKS OF A/CS IS FOR A MAXIMUM PERIOD OF 6 YEARS ONLY FROM THE END OF THE RELEVA NT AY. IN CASE OF IT (SS) A NO. 2 / 1 1 4 APPELLANT SHE HAD CLOSED THE BUSINESS IN 1995 AND IT WAS FOR THE FIRST TIME THAT IN THE YEAR 2006 I.E AFTER 12 YEARS BY INITIATION OF PROCEEDINGS U/S. 15BD , THE ASSESSEE WAS REQUIRED TO PRODUCE THE DETAILS OF FY 94 - 95 AND 95 - 96. NO NOTIC E WHAT SOEVER WAS ISSUED TO THE APPELLANT BEFORE THE EXPIRY OF THIS PERIOD OF 6 YEARS WHICH COULD HAVE MADE KNOWN TO HER THE REQUIREMENT TO PRESERVE THE BOOKS BEYOND PERIOD OF 6 YEARS FOR THE PURPOSE OF ENSUING PROCEE D IN G S. THUS IT IS CLEAR TH AT THESE DETAI LS CALLED WERE BEYOND THE PERIOD FOR WHICH AN ASSESSEE IS LEGALLY REQUIRED TO PRESERVE THE BOOKS. IT IS ALSO IMPORTANT TO NOTE T HAT THE ASSESSEE HAD CLOSED HER BROKERAGE BUSINESS IN THE YEAR 1995 ITSELF AND HENCE EVEN OTHERWISE IT IS NOT EXPECTED TO KEEP THE DETAILS OF A CLOSED BUSINESS AFTER 12 YEARS. THE ASSESSEE ALSO TRIED HER LEVEL BEST TO OBT AIN THE BANK DETAILS FROM THE KAPOL COOP BANK, WHO ALSO COULD NOT GIVE THE DE TAILS AS THEY HAD ALSO NOT MAINTAINED SUCH OLD RECORDS. THE AO DURING THE ASSESSMENT PROCEEDINGS OR THE REMAND PROCEEDINGS MADE NO ATTEMPTS TO ENFORCE AUTHORITY ON THE KAPOL COOP BANK TO GET THE ACCOUNT DETAILS FROM THEM. THE DENIAL BY THE MAIN BROKERS FOR WHOM THE APPELLANT WAS WORKING IS ALSO NOT OF MUCH CONSEQUENCE AS IT IS RIGHTLY CONT ENDED BY THE ASSESSEE THAT SINCE THE BROKERS HAVE MANY SUB - BROKERS WHICH RUN IN HUNDREDS, IT IS NOT EXPECTED TO REMEMBER THE SUB - BROKER AFTER 12 YEARS. MOREOVER, MOST OF THE BROKERS HAVE NOW BEEN CORPORATIZED AND RU N BY PROFESSIONAL COMPANIES THEREFORE T HE PERSON WITH WHOM THE ASSESSE E WAS DEALING AT THAT TIME MAY NOT BE EMPLOYED WITH THEM. MOREOVER FROM PERUSAL OF SEIZED PAPER NO.274 OF ANNEXURE A - 3 IT IS REVEALED THAT THIS IS THE PRINTED CONTRACT NOTE ISSUED BY THE MAIN BROKER. SIMILARLY THE SEIZED PAPER NO.275 OF ANNEXURE A - 3 IS THE LETTER HEAD OF THE MAIN BROKER ON WHICH TRANSACTIONS OF SHARES ARE MENTIONED. THESE SEIZED PAPERS THEREFORE, DO LEND SUPPORT TO THE CONTENTION OF THE APPELLANT THAT SHE WAS DOING SUB - BROKER SHIP THROUGH THE MAIN BROKERS. THERE FORE, THE ASSESSEE CANNOT BE FAULTED FOR HAVING FAILED TO GIVE DETAILS OF A CLOSED BUSINESS AFTER 12 YEARS WHICH WAS BEYOND HER MEANS PRACTICALLY AND LEGALLY. ON THE OTHER HAND THE APPELLANT DID GIVE CONFIRMATION AND COPIES OF THE LEDGER A/C FOR THE TRANSA CTIONS DONE BY HER FOR SATISH CHOWDHARY, RENU CHOWDHARY, EKTA CHOWDHARY WHICH CONSTITUTED A MAJOR PART (APPROX 60%) OF THE TRANSACTIONS RECORDED ON ANNEXURE A - 3, WHICH CLEARLY SUGGESTS THAT THOSE WERE TRANSACTIONS DONE BY THE APPELLANT ON BEHALF OF CHOWDHA RY GROUP AND NOT IN HER OWN CAPACITY. IT IS SETTLED PRINCIPLE THAT NATURE OF ENTRIES ON ANY SEIZED DOCUMENTS HAS TO BE ACCEPTED AS A WHOLE AND IT IS NOT PERMISSIBLE TO ACCEPT A PART AND IGNORE THE REST OF THE DOCUMENTS AS HELD IN 253 ITR 454(GUJ), 289 ITR( AT)50 (PUNE). APP ARENT L Y THE AO ACCEPTS THE VERSION OF APPELLANT THAT ENTR I ES MARKED AS ( - ) ARE SALES AND THOSE MARKED (+) ARE PURCHASES. B UT T WHILE MAKING THE ADDITION, THE AO HAS COMPLETELY IGNORED THE ENTRIES MARKED AS (+). F U RTHER THE AO HAS CONSIDERED ONLY THOSE ENTRIES AS SALES OF THE APPELLANT WHICH HAVE BEEN MARKED ( - ) ENCIRC LE D BY PEN . HE HAS NOT CONSIDERED THE ENTRIES WHICH ARE MARKED ( - ) BUT NOT ENCIRCLED, AS SALES OF THE APPELLA NT. THIS MEANS THAT THE AO HAS ACCEPTED THE PLEA OF THE APPELLANT TH AT ONLY THOSE TRANSACTIONS WHICH ARE ENCIRCLED AND MARKED AS ( - ) HAVE MATERIALIZED. BUT ON THE OTHER HAND THE AO DOES NOT ACCEPT THAT THE PLEA OF THE APPELLANT THAT TRANSACTIONS WERE FOR CLIENTS ONLY AND IT (SS) A NO. 2 / 1 1 5 NOT ON HER OWN BEHALF, IGNORING THE FACT THAT AGAIN ST ALL SUCH ENTRIES CONSIDERED BY HIM, THE NAMES OF CLIENTS AR E ALSO MENTIONED ON THE SAME ANNEXURE A - 3. HENCE THERE IS INHERENT CONTRADI CTION IN THE APPROACH OF THE AO WHERE HE ACCEPTS SOME MARKINGS [SUCH AS ( - ) AND ENCIRCLE BY PEN REPRESENTING MATERIALIZ ED TRANSACTIONS] AGAINST THE ENTRIES ON LOOSES SHEETS AS CORRECT BUT IGNORES THE OTHER MARKINGS [NAMES OF CLIENTS IN SHORT] AGAINST THE SAME ENTRIES. IF HE WERE TO TREAT THE MARKINGS ON SEIZED PAPER TO BE CORRECT, THEN HE SHOULD ALSO RECOGNIZE THE FACT THA T AGAINST THOSE ENTRIES THE NAMES OF CLIENTS WERE ALSO MENTIONED OUT OF WHICH THE TRANSACTIONS PERTAINING TO CHOWDHARY GROUP HAVE BEEN CONFIRMED, WHICH AMPLY PROVES THAT THE TRANSACTIONS MENTIONED ON LOOSE SHEETS WERE FOR SALE/PURCHASES ON BEHALF OF CLIENT S ONLY. UNDER THESE CIRCUMSTANCES, IT IS CLEAR THAT ONCE SOME OF THE TRANSACTIONS APPEARING ON LOOSE SHEETS ARE PERTAINING TO TRANSACTIONS MADE ON BEHALF OF CLIENT I.E. CHOWDHARY GROUP AND NOT OF THE APPELLANT, THEN IT WILL BE LOGICAL TO CONCLUDE THAT ALL TRANSACTIONS MENTIONED ON THOSE LOOSE SHEETS AR E OF SAME NATUR E . HENCE IT IS CLEAR THAT ALL THE TRANSACTION ON THOSE LOOS E SHEETS AS PER ANNEXURE A - 3 ARE DONE BY APPELLANT ON BEHALF OF CLIENTS AND NOT IN HER OWN CAPACITY. THERE IS MORE FALLACY IN THE APPR OACH OF THE AO THAT THOUGH HE HAS CONSIDERED THE TRANSACTIONS MENTIONED MARKED ( - ) AS SALES OF ASSESSEE BUT HAS IGNORED THE TRANSACTIONS MARKED (+) WHICH ARC PURCHASES APPEARING ON THE SAME LOOSE SHEET S. THERE CAN BE NO SALES IF THERE AR E NO PURCHASES AND HENCE THERE CAN BE NO PROFIT/INCOME WITHOUT REDUCING THE COST OF PURCHASES. BUT THE AO HAS ADDED ALL SALES AS INCO ME OF APPELLANT WITHOUT GIVING THE BENEFIT OF EXPENSES ON A/C OF PURCHASES . THE AO HAS ALSO GIVEN NO FINDING FOR THE INVESTMENT WHICH COULD BE REQUIRED TO ACHIEVE THE SALES TURNOVER IN THESE TWO AYS. IF THE AOS FI NDING THAT THE TRANSACTIONS OF PURCHA S E AND SALE OF SHARES WERE OF THE APPELLANT ONLY, WERE TO BE BELIEVED A S GOSPEL TRUTH, THEN THE SHARES WHICH WERE PURCHASED [MARKED AS ( - )] A S PER THE LOOSE SHEETS BUT NOT SOLD IN THAT YEAR SHOULD HAVE APPEARED IN THE BALANCE SHEET OF APPELLANT OR SHOULD HAVE BEEN SOLD IN SUBSEQUENT YEAR. BUT THE AO HAS ALSO NOT GIVEN ANY FINDING T O THIS EFFECT. HE HAS NEITHER MADE ANY ADDITION ON SALE OF UNEXPLAINE D INVE ST MENT IN SHARES NOR HAS MADE ANY ADDITION IN RESPECT OF SALE OF SUCH SHARES IN SUBSEQUENT YEARS WITHIN THE BLOCK PERIOD UPTO YEAR 2000. THESE CONTRA DICTIONS IN THE ACTION OF THE AO ALSO SUGGEST THAT HE FAILED TO EXAMINE THE TRANSACTIONS OF LOOSE SHE ETS ON A WHOLLISTIC BASIS . THE. AO HAS THOUGH ADMITTED THAT THE ENTRIES ON LOOSE SHEETS ARE MATCHING WITH THE LEDGER A/C APPEARING IN BOOKS OF CHOWDHARY GROUP BUT AS PER HIM THIS IS NOT SUFFICIENT EVIDENCE AS THE ASSESSEE HAS FAILED TO GIVE THE LEDGER A / CS OF OTHER PARTIES. WHAT WILL BE A SUFFICIENT E VIDENCE WILL DEPEND ON THE FACT S OF EACH CASE. IN THE PECULIAR CIRCUMSTANCES OF THIS CASE, I HAVE ALREADY DISCUSSED THAT IT WAS PRACTICALLY IMPOSSIBLE FOR THE ASSESSEE TO FURNISH FULL DETAILS OF A CLOSED BUSINE SS 12 YEARS AT THE TIME OF ASSESSMENT P ROCEEDINGS AND AFTER 15 YEARS AT THE TIME OF REMAND REPORT. THE DOUBT OF THE AO ON RELIABILITY OF THE LEDGER A/C OF SUBH INVESTMENTS IN BOOKS OF CHOWDHURY GROUP IS ALSO BASED ON PRESUMPTION THAT THE CHOWDHARY GROUP WA S ONLY DOING TRANSACTIONS WITH SUBH INVESTMENTS WHICH IS ALSO NO CORRECT AS EXPLAINED BY THE APPELLANT IT (SS) A NO. 2 / 1 1 6 ABOVE. IN THE LEDGER A/ C ALL PAYMENTS AND RECEIPTS ARE BY CHEQUES ONLY . THESE LEDGER A/C WERE PART OF SIZED BOOKS W HICH WERE ALSO SUBJECTED TO SCRUTINY I N SEARCH ASSESSMENT IN CH AWDH ARY GROUP AND THE AO IN THOSE CASE HAS NOT POINTED ANY DISCREPANCY IN THESE L E DGER A/CS. THE PRESENT AO, IF HE WAS SUSPICIOUS OF THE CLAIM OF THE APPELLANT, COULD AT LEAST HAVE MADE ENQUIRIES FOR VERIFYING THE SOURCE OF INVESTM ENT IN RESPECT OF THE TRANSACTIONS APPEARING IN THE LEDGER A/C OF SUBH INVESTMENT IN BOOKS OF CHOWDHARY GROUP, WHICH WOULD HAVE REVEALED THE TRUTH WHETHER THE PAYMENTS FOR PURCHASE OF THOSE SHARES WERE MADE FROM BANK A/C OF CHOWDH ARY GROUP OR APPELLANT . TH E AO HAS NOT DONE THIS AND HA S SIMPLY BRUSHED ASIDE IMPORTANT EVIDENCE GIVEN BY THE APPELLANT TO PROVE THAT THE TRANSACTIONS ON LOOSE SHEETS WERE DONE BY HER ONLY ON BEHALF OF CLIENTS. AO CANNOT REJECT AN EXPLANATION WITHOUT BRINING ANY POSITIVE MATERI AL A S HELD IN 33 TTJ 576 (PUNE). THE AO CANNOT UNREASONABLY REJECT A GOOD EXPLANATION TO CONVERT A GOOD PROOF INTO NO PROOF AS OBSERVED IN 49 ITR 112, 120, 121 (SC).. THUS, THE WHOLE ADDITION IS BASED ON PRESUMPTION THAT THE LOOSE SHEETS PERTAINED TO SHARE TRA DING ACTIVITY OF THE ASSESSEE ON HER BEHALF WHEREAS THE EVIDENCES CLEARLY SUGGEST THAT THE TRANSACTIONS MENTIONE D IN LOOSE SHEETS WERE DONE ON BEHALF OF CLIENTS AND THEY DID NOT REPRESENT HER OWN TRANSACTIONS. HENCE THE ADDITION OF RS. 1,15,08,002 MADE BY AO TREATING THE SALES ON BEHALF OF CLIENTS AS INCOME OF THE APPELLANT IS WITHOUT ANY LOGI C AND EVIDENCE. HENCE, THE SAME CANNOT BE SUSTAINED. THE APPELLANT COULD AT BEST BE ASSESSED FOR INCOME FROM BROKERAGE ON THE TRANSACTIONS MENTIONED IN THE LOOSE SHEET S. THOUGH IT HAS BEEN ADMITTED BY THE APPELLANT THAT SHE WAS EARNING THE SUB - BROKERAGE COMMISSION @ 0.5% BUT SHE HAS NOT BEEN ABLE TO CONCLUSIVELY SHOW THAT SHE WAS GETTING THE COMMISSION @ 0.5% ONLY. NORMALLY THE BROKERS CHARGE THE BROKERAGE COMMISSION @ 2%., HENCE, IN ABSENCE OF ANY EVIDENCE TO THE CONTRARY, THE COMMISSION INCOME OF THE APPELLANT SHOULD BE TAKEN @ 2% OF THE TURNOVER OF RS 1,15,08,002 FOR PERIOD OCTOBER 94 TO MARCH 95 AND RS 13,79,572 FOR THE PERIOD APRIL 95 TO JUNE 95. THE GROSS BROKERAGE @ 2% COMES TO RS .2,30,160 AND RS. 27,591 RESPECTIVELY FOR AY 95 - 96 & 96 - 97 AND AFTER ALLOWING EXPENSES @ 20% THE NET BROKERAGE COMES TO R S.1,82,128/ - AND RS. 22,072/ - WHICH SHALL BE TAXABLE IN THESE TWO AYS. ACCORDINGLY, THE ADDITION FOR AY 95 - 96 & 96 - 97 IS RE STRICTED TO RS 2 , 04 , 200/ - ( 1, 82 , 128 + 22 , 072) ONLY AND THE BALANCE IS DELETED. 6 . AGAINST THE ABOVE ORDER OF CIT(A), THE REVENUE IS IN APPEAL BEFORE US. 7 . WE HAVE CONSIDERED RIVAL CONTENTIONS, CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELO W AS WELL AS REMAND REPORT CALLED BY THE CIT(A) . THE CIT(A) ALSO RECORDED A FINDING TO THE EFFECT THAT THE TRANSACTIONS WERE ENTERED BY THE ASSESSEE AS SUB - BROKER WHICH IS EVIDENCE FROM THE CONFIRMATION FILED BY CHOWDHARY GROUPS. THE CIT(A) IT (SS) A NO. 2 / 1 1 7 ALSO FOUND THAT WHILE MAKING ADDITION THE AO HAS IGNORED THE PURCHASES OF SHARES MADE BY THE ASSESSEE ON BEHALF OF THE EMPLOYEES AND ONLY HAD TAKEN THE SALES. WITHOUT DEDUCTING THE COST OF PURCHASES, HOW THE PROFIT ON SALES OF SHARES CAN BE ASCERTAINED. THE CIT(A) FURTHE R RECORDED A FINDING THAT SEIZED PAPER NO. 274 OF ANNEXURE A - 3 CLEARLY REVEALS THAT THIS IS THE PRINTED CONTRACT NOTE ISSUED BY THE MAIN BROKER. SIMILARLY THE SEIZED PAPER NO.275 OF ANNEXURE A - 3 IS THE LETTER HEAD OF THE MAIN BROKER ON WHICH TRANSACTIONS OF SHARES ARE MENTIONED. THESE SEIZED PAPERS CLEARLY INDICATE THAT ASSESSEE WAS CARRYING BUSINESS AS SUB - BROKER T HEREFORE, THE ASSESSEE CANNOT BE FAULTED FOR HAVING FAILED TO GIVE DETAILS OF A CLOSED BUSINESS AFTER 12 YEARS WHICH WAS BEYOND HER MEANS PRACTIC ALLY AND LEGALLY. WE FOUND THAT ASSESSEE HAD GIVEN CONFIRMATION AND RECEIPT OF RENTAL ACCOUNT FOR THE TRANSACTION DONE BY HER FOR SATISH CHOWDHARY, RENU CHOWDHARY, EKTA CHOWDHARY WHICH CONSTITUTED A MAJOR PART OF THE TRANSACTIONS RECORDED ON ANNEXURE A - 3, WHICH CLEARLY SUGGESTS THAT THOSE WERE TRANSACTIONS DONE BY THE APPELLANT ON BEHALF OF CHOWDHARY GROUP AND NOT IN HER OWN CAPACITY. THE CIT(A) RECORDED A FINDING THAT ON PERUSAL OF THE ANNEXURE A/3 CLEARLY REVEALS THAT THE NAME OF THE CLIENTS ON WHOSE BEHA LF ASSESSEE WAS CARRYING ON THE BUSINESS OF SUB - BROKER. WE ALSO FOUND THAT DURING ASSESSMENT PROCEEDINGS, THE AO HAS ADMITTED THAT ENTRIES ON THE LOOSE SHEETS ARE MATCHING WITH THE LESSER ACCOUNT APPEARING IN THE BOOKS OF CHOWDHARY GROUP BUT AS PER AO THIS IS NOT SUFFICIENT EVIDENCE AS THE ASSESSEE HAS FAILED TO GIVE THE LESSER ACCOUNT OF OTHER PARTIES. UNDER THESE CIRCUMSTANCES, THE CIT(A) FOUND THAT IT WAS TECHNICALLY MISTAKE FOR THE ASSESSEE TO FURNISH FULL DETAILS OF A CLOSED IT (SS) A NO. 2 / 1 1 8 BUSINESS AFTER 12 YEARS AT THE TIME OF ASSESSMENT PROCEEDINGS AND AFTER 15 YEARS AT THE TIME OF REMAND REPORT. THE CIT(A) ALSO RECORDED A CATEGORICAL FINDING TO THE EFFECT THAT IN THE LESSER ACCOUNT OF PAYMENTS AND RECEIPTS WERE BY CHEQUES ONLY AND THAT THESE LESSER ACCOUNTS WERE PA RT OF THE SEIZED BOOKS WHICH WAS ALSO SUBJECTED TO SCRUTINY IN THE SEARCH PROCEEDING OF CHOWDHARY GROUP AND THE AO IN THOSE CASES HAS NOT POINTED OUT ANY DISCREPANCY IN THESE LESSER ACCOUNTS. AFTER GIVING THESE FINDINGS, THE CIT(A) COMPUTED PROFIT ON SUCH TRANSACTION ENTERED BY THE ASSESSEE AS SUB - BROKER AT 2% IN PLACE OF 0.5% OFFERED BY THE ASSESSEE AND CONFIRMED THE ADDITION TO THE EXTENT OF RS.1,82,128/ - AND RS.22,072/ - IN THE ASSESSMENT YEAR 1995 - 96 AND 1996 - 947 RESPECTIVELY. THE DETAILED FINDING RECORD ED BY CIT(A) AT PARA 4.3 REPRODUCED HEREINABOVE HAS NOT BEEN CONTROVERTED BY DR BY BRINGING ANY POSITIVE MATERIAL ON RECORD. ACCORDINGLY, WE DO NOT FIND ANY REASON TO INTERFERE IN THE FINDINGS SO RECORDED BY THE CIT(A) WHICH IS AS PER MATERIAL ON RECORD. I T IS PERTINENT TO MENTION THAT THE REVENUE HAS NOT TAKEN ANY GROUND WITH REGARD TO ANY ADDITIONAL EVIDENCE CONSIDERED BY THE CIT(A) IN CONTRAVENTION OF THE RULE 46A. 8 . IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT O N THIS 29/10 / 201 4 . 29/10 / 2014 SD/ - SD/ - ( ) ( SANJAY GARG ) ( ) ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 29/10 /2014 /PKM , PS IT (SS) A NO. 2 / 1 1 9 COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( ASSTT. REGISTRAR) / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) , MUMBAI. 4. / CIT 5. / DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//