The DCIT, Central Circle-1(1), Ahmedabad V. Shri Babuprasad Ramdayalji Shah, Ahmedabad

ITSSA 239/AHD/2014

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 6828 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 year(s) 10 month(s) 10 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 12-04-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 02-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIRENDRA OJHA
• Assessee Lawyers: S N SOPARKAR
• Keywords: Income from undisclosed sources; Reasonable cause; Accommodation entries
• Section: 153A; 13; 132

Judgement Text

, A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD (CONDUCTED THROUGH VIRTUAL COURT) BEFORE SHRI RAJPAL YADAV, VICE-PRESIDENT AND SHRI AMARJIT SINH, ACCOUNTANT MEMBER IT(SS)A NO.239/AHD/2014 / ASSTT.YEAR : 2009-10 DCIT, CENT.CIR.1(1) AHMEDABAD. VS. SHRI BABUPRASAD RAMDAYALJI SHAH 13, BHIMATH SOCIETY B/H. CIRCUIT HOUSE SHAHIBAUG AHMEDABAD 380 004. PAN : ACOPS 3358 M IT(SS)A NO.306/AHD/2014 / ASSTT.YEAR : 2010-11 SHRI BABUPRASAD RAMDAYALJI SHAH 13, BHIMATH SOCIETY B/H. CIRCUIT HOUSE SHAHIBAUG AHMEDABAD 380 004. VS. A CIT, CENT.CIR.1(1) AHMEDABAD. ( APPLICANT ) ( RESPONENT ) ASSESSEE BY : SHRI S.N. SOPARKAR, SR.ADV. & SHRI PARIN SHAH, AR REVENUE BY : SHRI VIRENDRA OJHA, CIT-DR / DATE OF HEARING : 23/03/2021 / DATE OF PRONOUNCEMENT: 12/04/2021 !'/ O R D E R PER RAJPAL YADAV, VICE-PRESIDENT: ASSESSEE IS IN APPEAL AGAINST ORDER OF THE LD.CIT(A ) DATED 1.4.2014 PASSED FOR THE ASSTT.YEAR 2010-11; WHEREAS THE REVENUE IS IN APPEAL AGAINST ORDER OF THE LD.CIT(A)-I, AHMEDABAD DATED 31.3.2014 PASSED FOR THE ASSTT.YEAR 2009-10. IT(SS)A NO.239 AND 306/AHD/2014 2 2. REGISTRY HAS POINTED OUT THAT APPEAL OF THE ASSE SSEE IS TIME BARRED BY 40 DAYS. IN ORDER TO EXPLAIN THE DELAY, IT HAS BEEN PLEADED BY THE ASSESSEE THAT IMPUGNED ORDER WAS PASSED ON 1 .4.2014 AND IT WAS RECEIVED BY THE ASSESSEE ON 16.4.2014. THEREAF TER, THE ASSESSEE HAD UNDERGONE CORONARY ARTERY BYPASS ON 19.4.2014. THIS APPEAL WAS TO BE FILED ON OR BEFORE 15.6.2014, BUT SINCE THE A SSESSEE WAS HOSPITALIZED AND TREATED FOR CORONARY ARTERY DISEAS E, BYPASS SURGERY WAS CONDUCTED UPON HIM, THEREFORE, HE COULD NOT LOO K AFTER INCOME- TAX LITIGATION FOR SHORT PERIOD, AND THIS APPEAL WA S ACCORDINGLY TIME BARRED BY 40 DAYS. THE AFFIDAVIT OF THE ASSESSEE A LONG WITH CERTIFICATE OF THE DOCTOR HAS BEEN PLACED ON RECORD. 3. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, W E HAVE GONE THROUGH THE AFFIDAVIT AS WELL AS MEDICAL CERTIFICAT E. CONSIDERING THE EXPLANATION GIVEN BY THE ASSESSEE, WE ARE SATISFIED THAT HE WAS PROHIBITED BY REASONABLE CAUSE FOR NOT FILING THE A PPEAL WELL IN TIME, THEREFORE, WE CONDONE THE DELAY OF 40 DAYS AND PROC EED TO DECIDE THE APPEAL ON MERIT. 4. THOUGH THESE ARE CROSS APPEALS, THEY PERTAIN TO DIFFERENT ASSESSMENT YEARS. BUT ISSUES AGITATED IN BOTH THE APPEALS ARE INTER- CONNECTED WITH EACH OTHER. BEFORE SPECIFYING THE GROUNDS OF APPEAL RAISED BY THE PARTIES, WE DEEM IT APPROPRIATE TO TA KE NOTE OF BRIEF FACTS OF THE CASE. 5. SEARCH UNDER SECTION 132 OF THE INCOME TAX ACT, 1961 WAS CONDUCTED IN THE CASE OF B.R. METAL GROUP ON 21.9.2 010. THE ASSESSEE WAS THE DIRECTOR IN THE COMPANY, AND THEREFORE, AN AUTHORIZATION UNDER IT(SS)A NO.239 AND 306/AHD/2014 3 SECTION 132 WAS ALSO ISSUED IN THE CASE OF THE ASSE SSEE. A NOTICE UNDER SECTION 153A WAS ISSUED ON 30.6.2011. HE HAS FILED HIS RETURN OF INCOME FOR THE ASSTT.YEAR 2009-10 AND 2010-11 ON 2. 8.2011 DECLARING TOTAL INCOME AT RS.2,12,44,312/- AND RS.22,50,46,04 0 RESPECTIVELY. IT IS PERTINENT TO FURTHER NOTE THAT DURING THE COURSE OF SEARCH DEPARTMENT WAS ABLE TO LAY ITS HAND ON SOME INFORMATION THAT M /S.B.R. METAL & ALLOYS P.LTD. HAS BROUGHT IN FRESH SHARE CAPITAL. IT HAD ISSUED EQUITY SHARE AT A PREMIUM OF RS.90/-, THUS THE SHARE HAVIN G FACE VALUE AT RS.10/- WAS ISSUED AT A PRICE OF RS.100/-. THE TOT AL ISSUED CAPITAL AT PREMIUM WAS RS.27.50 CRORES COMPRISING SHARE CAPITA L OF RS.2.75 CRORES AND SHARE PREMIUM OF RS.24.75 CRORES. THE DETAILS TABULATED BY THE AO IN THE ASSESSMENT ORDER FOR THE ASSTT.YEA R 2009-10 READ AS UNDER: SR. NO. NAME OF SHAREHOLDER NO.OF SHARES AMOUNT (IN RS.) 1. UTSAV PHARMACEUTICALS LTD. 250000 25000000 2. GRIN BPO SERVICES PVT. LTD. 185000 18500000 3. VEEMOTECH EXIM PVT. LTD. 125000 12500000 4. SURAJ CORPORATE SERVICES PVT. LTD. 100000 10000000 5. RANG UDHYOG INVESTMENT PVT. LTD. 125000 12500000 6. CHOPRA YARNS PVT. LTD. 115000 11500000 7. PLATINUM CORPORATION PVT. LTD. 100000 10000000 8. KEN SECURITIES LTD. 175000 17500000 9. ARCADIA MERCHANTILE CAPITAL LTD. 200000 20000000 10. GENUS COMMUNICTION TRADE LTD. 200000 20000000 11. UNIVERSAL CREDIT SECURITIES LTD. 175000 17500000 12. ADHESHWAR COTTON INDUSTRIES 100000 10000000 13. TPL FINANCE LTD. 300000 30000000 IT(SS)A NO.239 AND 306/AHD/2014 4 14. SIYARAM METALS PVT. LTD. 150000 15000000 15. SHARDA ALLOYS PVT. LTD. 200000 20000000 16. YOGESH OVERSEAS PVT. LTD. 250000 25000000 6. WHEN THE ASSESSEE WAS CONFRONTED WITH REGARD TO THE SOURCE OF THE ABOVE SHARE CAPITAL, THEN IN A STATEMENT RECORD ED UNDER SECTION 132(4) OF THE ACT, THE ASSESSEE HAS DECLARED UNDISC LOSED INCOME AT RS.20.50 CRORES. HE DEPOSED THAT RETURN FOR THE AS STT.YEAR 2010-11 HAS NOT BEEN FILED, AND THAT HE WOULD DECLARE THIS AMOUNT AS HIS UNDISCLOSED INCOME SUBJECT TO THE CONDITION THAT NO PENALTY ETC. WOULD BE IMPOSED UPON HIM. ACCORDINGLY, FOR THE ASSTT.YE AR 2010-11, HE HAS INCLUDED THIS AMOUNT OF RS.20.50 CRORES IN HIS RETURNED INCOME. THE AO WHILE FRAMING THE ASSESSMENT ORDER FOR THE A SSTT.YEAR 2009- 10 WAS NOT SATISFIED WITH THE ABOVE DISCLOSURE. HE OBSERVED THAT SINCE THE CAPITAL WAS INTRODUCED IN THE ASSTT.YEAR 2009-1 0, THEREFORE, IT BE CONSTRUED THAT THE ASSESSEE MUST HAVE ARRANGED THE CASH TO THE ENTRY PROVIDERS IN THE FINANCIAL YEAR 2008-09, AND THIS I NCOME DESERVES TO BE ASSESSED IN THE ASSTT.YEAR 2009-10 INSTEAD OF A.Y.2 010-11. THE AO HAS RECORDED STATEMENT OF SOME OF THE PERSONS WHO A LLEGED TO HAVE PROVIDED ENTRIES TO THE ASSESSEE IN THE LIST OF ABO VE 16 SHARE APPLICANTS. SIMILARLY, HE MADE ADDITION ON PROTECT IVE BASIS IN THE ASSTT.YEAR 2010-11, BECAUSE THE AMOUNT WAS RETURNED BY THE ASSESSEE. 7. DISSATISFIED WITH THE ABOVE ADDITION IN THE ASST T.YEAR 2009-10 AND PROTECTIVE ADDITION IN THE ASSTT.YEAR 2010-11, THE ASSESSEE WENT IN APPEAL BEFORE THE LD.CIT(A). IT IS ALSO PERTINEN T TO MENTION THAT THE ASSESSEE HAS FURTHER CHALLENGED ESTIMATION OF COMMI SSION ALLEGED TO IT(SS)A NO.239 AND 306/AHD/2014 5 HAVE BEEN PAID FOR ARRANGING SUCH ACCOMMODATION ENT RY. THE LD.AO HAS ESTIMATED AT 2%. THE LD.CIT(A) HAS ACCEPTED TH E APPEAL OF THE ASSESSEE IN THE ASSTT.YEAR 2009-10 AND DELETED THE ADDITION BY HOLDING THAT THIS AMOUNT HAS ALREADY BEEN OFFERED FOR TAXAT ION IN THE ASSTT.YEAR 2010-11 AND TAXES HAVE BEEN PAID. 8. WITH REGARD TO THE ESTIMATION OF COMMISSION INCO ME PAID FOR ARRANGING SUCH ENTRIES IN THE ASSTT.YEAR 2010-11, T HE LD.CIT(A) HAS REDUCED IT TO 1% AS AGAINST ESTIMATED BY THE AO AT 2%. THUS, IN BRIEF THE GRIEVANCE OF THE REVENUE IS THAT THIS UNEXPLAIN ED INCOME SHOULD HAVE BEEN ASSESSED IN THE ASSTT.YEAR 2009-10 INSTEA D OF A.Y.2010-11, THOUGH THE ADDITION HAS BEEN MADE ON PROTECTIVE BAS IS BY THE AO IN THE ASSTT.YEAR 2010-11 ALSO. REVENUE FURTHER PLEA DED THAT THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 44.00 LAKHS WHICH WAS ADDED BY THE AO BY ESTIMATING THE ALLEGED COMMI SSION/ BROKERAGE PAID BY THE ASSESSEE FOR OBTAINING ACCOMM ODATION ENTRIES. IN THE ASSTT.YEAR 2010-11, THE ASSESSEE IS IMPUGNIN G ORDER OF THE LD.CIT(A) ON THE GROUND THAT THE LD.CIT(A) HAS ERRE D IN HOLDING THAT 1% OF THE BROKERAGE WAS PAID BY THE ASSESSEE AS AGA INST 0.5% OFFERED BY THE ASSESSEE. 9. WITH THE ABOVE BACKGROUND, WE HAVE HEARD LEARNED REPRESENTATIVES AND PERUSED RECORD CAREFULLY. WE F IND THAT WHILE DELETING THE ADDITION FROM THE ASSTT.YEAR 2009-10, THE LD.CIT(A) HAS LUCIDLY CONSIDERED EACH AND EVERY DETAILS NOTICED B Y THE AO WHILE MAKING ADDITION. THE FINDING RECORDED BY THE LD.CI T(A) IN THE ASSTT.YEAR 2009-10 READS AS UNDER: IT(SS)A NO.239 AND 306/AHD/2014 6 4. I HAVE GONE THROUGH THE ASSESSMENT ORDER AND TH E SUBMISSIONS AND ARGUMENTS OF THE AR OF THE APPELLANT CAREFULLY. IT IS SEEN THAT THE AO HAS MADE THE ADDITION IN THE HANDS OF THE APPELLANT BEC AUSE THE APPELLANT IS THE DIRECTOR OF M/S B R METAL & ALLOYS (GUJ) PVT. L TD. AND DURING THE YEAR THE SAID COMPANY HAD RECEIVED FRESH SHARE CAPITAL W ORTH RS. 20,50,00,000/-. THE SAID SHARE CAPITAL WAS ADMITTED BY THE APPELLANT TO BE ARRANGED CAPITAL WHICH HAD BEEN ROUTED THROUGH VARI OUS ENTITIES AND THAT THE SOURCE OF THE FUNDS WAS FROM THE UNACCOUNTED IN COME OF THE APPELLANT FOR THE A.Y. 2010-11. THE AO HELD THAT SINCE THE AP PELLANT HAD ACCEPTED THE FACT THAT THE SHARE CAPITAL WAS NOT GENUINE AND HAD BEEN ARRANGED BY THE APPELLANT FROM HIS UNACCOUNTED FUNDS AND BECAUS E THE MONEY HAD COME TO THE BANK ACCOUNT OF M/S B R METAL & ALLOYS (GUJ) PVT. LTD. IN THE F.Y. 2008-09 RELEVANT TO THE A.Y. 2009-10, HENCE TH E UNACCOUNTED MONEY HAD BEEN PROVIDED BY THE APPELLANT IN F.Y. 2008-09 RELEVANT TO THE A.Y. 2009-10 AND NOT IN THE YEAR A.Y. 2010-11 AS STATED BY THE APPELLANT. FOR COMING TO THIS CONCLUSION THE AO RELIED ON THE STAT EMENTS OF VARIOUS PERSONS WHO STATED THAT THEY WERE PART FINANCERS OF THE SHARE CAPITAL AND THAT THEY HAD MERELY PROVIDED ACCOMMODATION ENTRIES AND THAT THE FUNDS HAD COME FROM M/S B R METAL & ALLOYS (GUJ) PVT. LTD . AND WAS ROUTED THROUGH A FEW BANK ACCOUNTS BEFORE BEING INVESTED A S SHARE CAPITAL THROUGH THEM. THE AO HAS ALSO HEAVILY RELIED ON THE STATEMENT OF THE APPELLANT TO HOLD THAT THE UNACCOUNTED MONEY OF THE APPELLANT HAD BEEN INVESTED IN THE FORM OF FRESH SHARE CAPITAL IN M/S B R METAL & ALLOYS (GUJ) PVT. LTD. THE AO HOWEVER HAS NOT ACCEPTED THE OTHER PART OF THE STATEMENT OF THE APPELLANT WHEREIN HE HAS CATEGORIC ALLY STATED THAT THE UNACCOUNTED INCOME WAS FOR THE F.Y. 2009-10 RELEVAN T TO A.Y. 2010-11. 4.1 THE MAIN ISSUE TO BE DECIDED IN THIS CASE .IS W HETHER ON THE BASIS OF THE STATEMENT OF THE APPELLANT, WHO IS ALSO A DIREC TOR IN M/S B R METAL & ALLOYS (GUJ) PVT. LTD., THAT THE SHARE CAPITAL INFU SED IN THE COMPANY M/S B R METAL & ALLOYS (GUJ) PVT. LTD. REPRESENTED HIS UN ACCOUNTED INCOME FOR A.Y. 2010-11 CAN THE AO HOLD THAT THE FRESH SHARE C APITAL REPRESENTED THE UNACCOUNTED INCOME OF THE APPELLANT FOR F.Y. 2008-0 9 RELEVANT TO A.Y. 2009-10. 4.2 IT IS SETTLED LAW THAT WHEN ANY EVIDENCE IS CON SIDERED THEN THE SAME HAS TO BE EITHER ACCEPTED FULLY OR HAS TO BE REJECT ED. THE ONLY EXCEPTION WHICH CAN BE CARVED OUT FROM THIS GENERAL RULE IS T HAT WHEN THE PERSON EVALUATING THE EVIDENCE HAS SOME OTHER EVIDENCE IN HIS POSSESSION TO ESTABLISH THAT THE OTHER PART IS ONLY A FABRICATION WITHOUT ANY MERIT. IT IS ALSO ESTABLISHED THAT THE ONUS OF SUCH PART ACCEPTA NCE OF THE EVIDENCE LIES HEAVILY ON THE REVENUE WHICH HAS TO BE DISCHARGED W ITH CONCRETE EVIDENCE. 4.3 AS FAR AS THE SOURCE OF INCOME FOR GENERATING THIS UNACCOUNTED INCOME OF RS. 20,50,00,000/- IS CONCERNED, IT IS SE EN THAT NO EVIDENCE HAS BEEN GATHERED BY THE AO TO ESTABLISH WHETHER THE AP PELLANT HAD THE ABILITY IT(SS)A NO.239 AND 306/AHD/2014 7 TO GENERATE FUNDS TO THE EXTENT OF RS. 20,50,00,000 /-. THIS ISSUE MAY BE RELEVANT, HOWEVER IT CANNOT BE A DECISIVE FACTOR IF IT CAN BE ESTABLISHED THAT THE MONEY IN THE FORM OF SHARE CAPITAL HAD BEE N PROVIDED BY THE APPELLANT IN F.Y. 2008-09 RELEVANT TO THE A.Y. 2009 -10. 4.4 WHEN THE FACTS OF THE PRESENT CASE ARE EXAMINED IN LIGHT OF THE ABOVE DISCUSSION, IT WOULD BE SEEN THAT THE ONLY EVIDENCE S WITH THE AO OTHER THAN THE STATEMENT OF THE APPELLANT ARE THE FOLLOWING: 1. THE BANK ACCOUNT OF M/S B R METAL & ALLOYS (GUJ ) PVT. LTD. WHEREIN THE MONEY HAS BEEN DEPOSITED IN F.Y. 2008-0 9 RELEVANT TO THE A.Y. 2009-10 2. COPIES OF BANK ACCOUNTS OF THE PERSONS MAKING T HE INVESTMENT IN PURCHASE OF SHARES OF M/S B R METAL & ALLOYS (GUJ) PVT. LTD. 3. STATEMENTS OF THE PERSONS IN CONTROL OF SOME O F THE ENTITIES MAKING INVESTMENT IN THE SHARE CAPITAL OF M/S B R M ETAL & ALLOYS (GUJ) PVT. LTD. STATING THAT CASH HAD BEEN PROVIDED BY M/S B R METAL & ALLOYS (GUJ) PVT. LTD. 4. IN THE CASE OF TPL FINANCE EVIDENCE THAT CASH HAD BEEN DEPOSITED IN THE BANK ACCOUNT OF M/S MAHAVIR ENTERP RISE WHICH HAD THEREAFTER ISSUED CHEQUE TO MS/ TPL FINANCE AND TPL FINANCE HAD THEN ISSUED CHEQUE TO M/S B R METAL & ALLOYS (G UJ) PVT. LTD. 4.5 THE AO HAS RECORDED HIS FINDING ABOUT EACH OF T HE ISSUES IN DETAIL IN THE ASSESSMENT ORDER. IN ORDER TO EVALUATE THE EVID ENCE BROUGHT ON RECORD BY THE AO IT IS NECESSARY TO EXAMINE EACH OF THE EV IDENCES BROUGHT ON RECORD. 4.6 AS FAR AS THE STATEMENT OF THE PARTIES WHICH HA VE BEEN BROUGHT ON RECORD AND ANALYSED BY THE AO IN THE ASSESSMENT ORD ER ARE CONCERNED, IT IS SEEN THAT THE ENQUIRIES HAVE BEEN CONDUCTED IN T HE CASES OF THE ONLY 7 COMPANIES WHICH HAVE TOGETHER CONTRIBUTED A SHARE C APITAL OF RS. 12 CRORES AND THE AO HAS CONCLUDED THAT THE ENTIRE SHA RE CAPITAL OF RS. 20.50 CRORES SUBSCRIBED BY 16 ENTITIES HAS BEEN PROVIDED FOR BY THE APPELLANT. EVEN AMONGST THE 7 COMPANIES IN RESPECT OF TPL FINA NCE THE AO HAS FOUND CASH DEPOSIT OF RS. 50,00,000/- ONLY WHEREAS THE COMPANY HAS SUBSCRIBED TO AN AMOUNT OF RS. 3.0 CRORES. NO ENQUI RY HAS BEEN CONDUCTED ABOUT THE BALANCE RS. 2.50 CRORES. NO STATEMENT OF THE DIRECTORS/ PRINCIPAL OFFICERS OF THIS COMPANY WAS RECORDED. 4.7 THE ACCOUNT ANALYSED BY THE AO OTHER THAN THE C ASE OF TPL FINANCE AND THAT TOO TO EXTENT OF ONLY RS. 50,00,00 0/- DO NOT SHOW CASH DEPOSITS. THIS NEGATES THE THEORY OF THE AO THAT CA SH HAD BEEN PROVIDED BY THE APPELLANT FOR DEPOSIT IN THE BANK ACCOUNT FOR O NWARD TRANSMISSION AS. SHARE CAPITAL IN THE HANDS OF M/S B R METAL & ALLOY S (GUJ) PVT. LTD. IF ALL IT(SS)A NO.239 AND 306/AHD/2014 8 THE MONEY HAD COME BY CHEQUES FROM VARIOUS ENTITIES THEN THERE COULD NOT BE A CASE OF THE CASH BELONGING TO THE APPELLANT BE ING DEPOSITED IN THESE ACCOUNTS. THE AO HAS NOT CONDUCTED ENOUGH ENQUIRIES TO ESTABLISH THE DEPOSIT OF CASH IN THE ACCOUNTS IN ORDER TO ESTABLI SH THE CHAIN LEADING TO THE DEPOSIT OF SHARE CAPITAL IN M/S B R METAL & ALL OYS (GUJ) PVT. LTD. 4.8 NO PERSON WHO HAS BEEN EXAMINED HAS CATEGORICAL LY STATED THAT THE MONEY HAD BEEN PROVIDED FOR BY THE APPELLANT. ALL T HE PERSONS WHOSE STATEMENTS HAVE BEEN REFERRED TO BY THE AO IN THE A SSESSMENT ORDER HAVE CATEGORICALLY STATED THAT THE CASH HAD COME FROM M/ S B R METAL & ALLOYS (GUJ) PVT. LTD.. NO ENQUIRY HAS BEEN MADE BY THE AO ABOUT THE CASH COMING FROM M/S B R METAL & ALLOYS (GUJ) PVT. LTD. FURTHER THE AO HAS NOT MADE ANY ADDITION IN THE HANDS OF THE COMPANY M /S B R METAL & ALLOYS (GUJ) PVT. LTD. THEREBY HOLDING THAT THE SHA RE CAPITAL OF THE COMPANY IS GENUINE. 4.9 THE STATEMENT OF MODARAM MODI, IT HAS BEEN STAT ED THAT M/S VEEMOTECH EXIM P. LTD. HAS INVESTED RS. 1.25 CRORES IN M/S B R METAL & ALLOYS (GUJ) PVT. LTD. AND M/S CHOPRA YARN P. LTD. HAS INVESTED RS. 1.15 CRORES IN M/S B R METAL & ALLOYS (GUJ) PVT. LTD. SH RI MODI HAS STATED THAT HE IS NOT ASSOCIATED WITH ANY OTHER CONCERN OT HER THAN THE TWO NOTED ABOVE. HE HAS FURTHER STATED THAT HE DOES NOT HAVE ANY OTHER BANK ACCOUNT OTHER THAN THAT OF THE TWO COMPANIES. IT IS TO BE N OTED THAT THERE ARE NO CASH DEPOSITS OF MATCHING AMOUNTS IN THE BANK ACCOU NT OF THE TWO COMPANIES. IF SHRI MODARAM MODI IS STATING THE TRUT H THEN IT IS IMPOSSIBLE TO HAVE RECEIVED THE MONEY FROM THE APPELLANT SINCE NO CASH DEPOSITS HAVE BEEN MADE IN ANY OF THE TWO ACCOUNTS. IT IS ALSO TO BE NOTED THAT SHRI MODI HAS GIVEN VAGUE ANSWER TO THE QUESTION REGARDING WH ICH PERSON HAD GIVEN HIM THE CASH. THE OTHER VERY IMPORTANT ASPECT IS TH AT THE APPELLANT WAS NOT PROVIDED ANY OPPORTUNITY TO CROSS-EXAMINE SHRI MODI DESPITE REQUESTS FOR THE SAME TO THE AO. IN SUCH SITUATION WHERE THE OPP ORTUNITY OF CROSS- EXAMINATION WAS NOT PROVIDED AND THERE ARE INHERENT ANOMALIES IN THE STATEMENT, THE COMPLETE RELIANCE OF THE AO ON THE S TATEMENT OF SHRI MODARAM MODI DOES NOT APPEAR TO BE JUSTIFIED. 4.10 SIMILARLY, THE STATEMENT OF DEEPAK PATEL, IT H AS BEEN STATED THAT M/S KENS SECURITIES LTD. HAS INVESTED RS. 1.75 CRORES I N M/S B R METAL & ALLOYS (GUJ) PVT. LTD. SHRI PATEL HAS STATED THAT H E IS NOT ASSOCIATED WITH ANY OTHER CONCERN OTHER THAN M/S KENS SECUTIRITIES LTD. NOTED ABOVE. HE HAS FURTHER STATED THAT HE DOES NOT HAVE ANY OTHER BANK ACCOUNT OTHER THAN THE TWO BANK ACCOUNTS BELONGING TO M/S KENS SECUTIR ITIES LTD. IT IS TO BE NOTED THAT THERE ARE NO CASH DEPOSITS OF MATCHING A MOUNTS IN THE BANK ACCOUNT OF M/S KENS SECUTIRITIES LTD.. IF SHRI DEEP AK PATEL IS STATING THE TRUTH THEN IT IS IMPOSSIBLE TO HAVE RECEIVED THE MO NEY FROM THE APPELLANT SINCE NO CASH DEPOSITS HAVE BEEN MADE IN ANY OF THE TWO ACCOUNTS BELONGING TO M/S KENS SECUTIRITIES LTD.. IT IS ALSO TO BE NOTED THAT SHRI PATEL HAS GIVEN VAGUE ANSWER TO THE QUESTION REGARD ING WHICH PERSON HAD IT(SS)A NO.239 AND 306/AHD/2014 9 GIVEN HIM THE CASH. THE OTHER VERY IMPORTANT ASPECT IS THAT THE APPELLANT WAS NOT PROVIDED ANY OPPORTUNITY TO CROSS-EXAMINE S HRI PATEL DESPITE REQUESTS FOR THE SAME TO THE AO. IN SUCH SITUATION WHERE THE OPPORTUNITY OF CROSS- EXAMINATION WAS NOT PROVIDED AND THERE ARE I NHERENT ANOMALIES IN THE STATEMENT, THE COMPLETE RELIANCE OF THE AO ON T HE STATEMENT OFSHRI DEEPAK PATEL DOES NOT APPEAR TO BE JUSTIFIED. 4.11 SIMILARLY, THE STATEMENT OF SHRI HITESH PANCHA L, IT HAS BEEN STATED THAT M/S GENUS COMMU TRADE LTD. HAS INVESTED RS. 2. 0 CRORES IN M/S B R METAL & ALLOYS (GUJ) PVT. LTD. SHRI PANCHAL HAS STA TED THAT HE IS NOT ASSOCIATED WITH ANY OTHER CONCERN OTHER THAN M M/S GENUS COMMU TRADE LTD. NOTED ABOVE. HE HAS FURTHER STATED THAT HE DOE S NOT HAVE ANY OTHER BANK ACCOUNT OTHER THAN THE TWO ACCOUNTS BELONGING TO M/S GENUS COMMU TRADE LTD. IT IS TO BE NOTED THAT THERE ARE NO CASH DEPOSITS OF MATCHING AMOUNTS IN THE BANK ACCOUNT OF M/S GENUS COMMU TRAD E LTD. IF SHRI HITESH PANCHAL IS STATING THE TRUTH THEN IT IS IMPO SSIBLE TO HAVE RECEIVED THE MONEY FROM THE APPELLANT SINCE NO CASH DEPOSITS HAVE BEEN MADE IN ANY OF THE TWO ACCOUNTS BELONGING TO M/S GENUS COMM U TRADE LTD. IT IS ALSO TO BE NOTED THAT SHRI PANCHAL HAS GIVEN VAGUE ANSWER TO THE QUESTION REGARDING WHICH PERSON HAD GIVEN HIM THE CASH. THE OTHER VERY IMPORTANT ASPECT IS THAT THE APPELLANT WAS NOT PROVIDED ANY O PPORTUNITY TO CROSS- EXAMINE SHRI PANCHAL DESPITE REQUESTS FOR THE SAME TO THE AO.- IN SUCH SITUATION WHERE THE OPPORTUNITY OF CROSS- EXAMINATI ON WAS NOT PROVIDED AND THERE ARE INHERENT ANOMALIES IN THE STATEMENT, THE COMPLETE RELIANCE OF THE AO ON THE STATEMENT OF SHRI HITESH PANCHA! D OES NOT APPEAR TO BE JUSTIFIED. 4,12 AS FAR AS TPL FINANCE IS CONCERNED, NO STATEME NT OF ANY PERSON HAS BEEN RECORDED. THERE IS NO EVIDENCE OF ANY DEPOSIT OF CASH OTHER THAN THE RS. 50,00,000/- DEPOSITED IN THE BANK ACCOUNT OF MA HAVIR ENTERPRISE. EVEN REGARDING THIS AMOUNT THERE IS NO EVIDENCE OF WHO DEPOSITED THE MONEY. ONLY ON THE BASIS OF CASH DEPOSITED AMOUNTIN G TO RS. 50,00,000/- IN THE ACCOUNT OF A PERSON WHO GAVE A CHEQUE TO ANO THER PERSON WHO IN TURN HAD INVESTED RS. 3,00,00,000/- IN M/S B R META L & ALLOYS (GUJ) PVT. LTD. IT CANNOT BE SAID THAT THE APPELLANT HAD PROVI DED THE ENTIRE FUNDS IN THE A.Y. 2009-10 FROM HIS UNACCOUNTED SOURCES. 4.13 WHEN THE STATEMENT OF THE APPELLANT IS ANALYSE D, IT IS SEEN THAT THE APPELLANT HAS VERY CLEARLY STATED THAT HE HAD UNACC OUNTED INCOME IN A.Y. 2010-11 AND NOT IN A.Y. 2009-10. AS DISCUSSED IN TH E EARLIER PARAGRAPHS THE AO HAS NOT BROUGHT ON RECORD ANY CONCRETE EVIDE NCE TO PROVE THAT THE APPELLANT HAD INCOME IN A.Y. 2009-10. THE MERE FACT THAT THE INVESTMENT IN THE SHARE CAPITAL HAS BEEN MADE IN A.Y. 2009-10 DOES NOT MEAN THAT THE APPELLANT HAD INCOME IN THAT YEAR. IF THE AO CONTRA DICTS THE STATEMENT OF THE APPELLANT HE HAS TO BRING ON RECORD EVIDENCE FO R THE SAME. AS DISCUSSED EARLIER NO EVIDENCE IN THIS REGARD HAS BE EN BROUGHT ON RECORD. THE AR OF THE APPELLANT HAS RELIED ON THE FOLLOWING CASES: IT(SS)A NO.239 AND 306/AHD/2014 10 GLASSLINES EQUIPMENT CO. LTD VS CIT 253 ITR 454 (GU J) GHANSHYAMBHAI R. THAKKAR (1996) 88 TAXMAN 65 (AHD) CHANDER MOHAN MEHTA VS ACIT (1999) 65 TTJ 327 PUNE DCIT VS GLAMOUR RESTAURANT (2003) 80 TTJ 763 MUM THE DHANVARSHA BUILDERS AND.... VS DCIT 102 ITD 375 PUNE (2002) 4.14 I HAVE GONE THROUGH THE FACTS OF THESE CASES. IT IS SEEN THAT IN THESE CASES UNIFORMLY THE PROPOSITION UPHELD IS THAT THE COMPLETE STATEMENT OR EVIDENCE HAS TO BE CONSIDERED. IT IS NOT OPEN TO TH E AO TO CHOOSE PART OF THE STATEMENT OR EVIDENCE AND REJECT THE OTHER PART . IN THE CASE OF GLASSLINES EQUIPMENT CO. LTD VS CIT 253 ITR 454 (GU J) THE JURISDICTIONAL HIGH COURT HAS UPHELD THAT THE CONTENTS OF AN UNCON TRAVERTED AFFIDAVIT HAVE TO BE ACCEPTED. THE JURISDICTIONAL ITAT IN THE CASE OF GHANSHYAMBHAI R. THAKKAR (1996) 88 TAXMAN 65 (AHD) HAS HELD THAT PART OF THE STATEMENT CANNOT BE ACCEPTED WHILE NEGA TING ANOTHER PART. IN THE CASE OF CHANDER MOHAN MEHTA VS ACIT (1999) 65 T TJ 327 PUNE THE TRIBUNAL IN PARA 8 OF THE ORDER HAS CATEGORICALLY H ELD THAT 'REVENUE CANNOT BE PERMITTED TO USE THAT PART OF THE STATEME NT WHICH IS BENEFICIAL TO IT AND REJECT THE OTHER PART OF THE STATEMENT WHICH IS DETRIMENTAL TO IT'. IN THE CASE OF DCIT VS GLAMOUR RESTAURANT (2003) 80 TT J 763 MUM IN WHICH IT WAS SEEN THAT IN THE STATEMENT RECORDED, T HE ASSESSEE HAD OFFERED INCOME FOR A.Y. 1989-90. DURING THE ORDER PASSED U/ S 132(5), THE AO ASSESSED THE INCOME AS THAT OF A.Y. 1989-90. HOWEVE R, DURING THE ASSESSMENT PROCEEDINGS THE AO ASSESSED THE INCOME O FFERED IN DIFFERENT YEARS FROM A.Y. 1986-87 TO A.Y. 1988-89. IT IS SEEN THAT THE INCOME ASSESSED WAS NEARLY THE SAME AS HAD BEEN OFFERED VO LUNTARILY, IT WAS HELD BY THE ITAT THAT THE DEPARTMENT CANNOT ACCEPT ONE P ART OF THE STATEMENT AND REJECT THE OTHER PART JUST BECAUSE IT CHOSE TO DO SO. THE ITAT HELD THAT EITHER THE DEPARTMENT RELIES ON THE STATEMENT AS A WHOLE AND ASSESS THE ASSESSEE IN A.Y. 1989-90 OR THE DEPARTMENT SHOULD R EJECT THE STATEMENT AND ASSESS THE INCOMES IN INDIVIDUAL YEARS BASED ON INDEPENDENT EVIDENCE. WHEN THE DEPARTMENT REJECTS THE STATEMENT THEN NO RELEVANCE BE GIVEN TO STATEMENT AT ALL. 4.15 IN VIEW OF THE ABOVE, IT IS CLEAR THAT THE AO WAS NOT JUSTIFIED IN HOLDING THAT THE APPELLANT HAD CONTRIBUTED TO THE E NTIRE FRESH SHARE CAPITAL INVESTED IN M/S B R METAL & ALLOYS (GUJ) PVT. LTD. OF RS.20,50,00,000/- IN A.Y. 2009-10 OUT OF UNACCOUNTED SOURCES. THE ADDITION MADE BY THE AO OF RS. 20,50,00,000/- I S DELETED. 10. THE ONLY DISPUTE RELATES TO THE YEAR OF TAXABIL ITY. THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT THE SHARE CAPI TAL INTRODUCED BY B.R.METAL & ALLOYS P.LTD. IS CONCERNED, IT WAS ACCE PTED BY THE IT(SS)A NO.239 AND 306/AHD/2014 11 ASSESSEE AS ARRANGED BY HIM. THE ASSESSEE HAS OFFE RED FOR TAXATION IN THE ASSTT.YEAR 2010-11, WHEREAS THE AO WAS OF THE V IEW THAT THIS UNEXPLAINED INCOME DESERVES TO BE ASSESSED IN THE A SSTT.YEAR 2009-10. AT THIS STAGE, WE WOULD LIKE TO MAKE REFERENCE TO T HE QUESTION AND ANSWER ASKED DURING THE SEARCH AS WELL AS POST-SEAR CH INQUIRY. THESE HAVE BEEN REPRODUCED BY THE AO ON PAGE NO.3 OF THE ASSESSMENT ORDER IN THE ASSTT.YEAR 2009-10. THE RELEVANT PART OF TH E ORDER READS AS UNDER: IT(SS)A NO.239 AND 306/AHD/2014 12 11. FROM THE ABOVE REPLY OF THE ASSESSEE TO THE QUE STION NO.6 SHOWED THAT THE ASSESSEE HAS MADE DISCLOSURE ON HIS INDIVIDUAL CAPACITY AND STATED THAT TRANSACTIONS OF PAYMENT OF CASH AND MAKING SUCH INVESTMENT WAS MADE BY HIM IN THE FINANCIAL YE AR 2009-10 RELEVANT TO THE ASSTT.YEAR 2010-11, AND THEREFORE, THE ASSESSEE HAD RIGHTLY INCLUDED THE SAID DISCLOSURE AMOUNT IN THE RETURN FOR THE ASSTT.YEAR 2010-11, WHICH WAS AS PER THE STATEMENT MADE UNDER SECTION 132(4) OF THE ACT. THE ASSESSEE HAS STATED THAT THE TRANSACTION BETWEEN HIM AND THE ALLEGED PAPER COMPANIES TOOK PL ACE IN FINANCIAL YEAR 2009-10, AND THE AMOUNT IN QUESTION PAID IN TH E F.Y.2009-10, THE RELEVANT ASSESSMENT YEAR IS 2010-11. THE LD.AO SHO ULD HAVE CONSIDERED THE STATEMENT MADE BY THE ASSESSEE UNDER SECTION 132(4) OF THE ACT. THE LD.AO HAS TWICE TAXED THE ASSESSEE ON THE SAME AMOUNT; ONE ON SUBSTANTIVE BASIS IN THE ASSTT.YEAR 2009-10 AND OTHER ON PROTECTIVE BASIS IN THE ASSTT.YEAR 2010-11. THE LD .CIT(A) HAS OBSERVED THAT WHEN THE AO HAS ACCEPTED AND ACTED UP ON ONE PORTION OF THE STATEMENT OF THE ASSESSEE MADE UNDER SECTION 132(4) OF THE ACT, HE CANNOT RENEGADE FROM ACTING THE SECOND PART OF T HE SAME STATEMENT IT(SS)A NO.239 AND 306/AHD/2014 13 OF THE ASSESSEE FOR SHEER INTEREST OF THE REVENUE. IN OTHER WORDS, THE LAW DOES NOT PERMIT A PERSON TO BOTH APPROBATE AND REPROBATE. IN OTHER WORDS, THE AO CANNOT CHOOSE A PART OF THE STATEMENT AND REJECT THE OTHER PART OF THE SAME STATEMENT. IN THE INSTANT CASE, QUESTION IS WHAT ARE THE CORROBORATIVE PIECES OF EVIDENCES WITH THE DEPARTMENT WHICH WOULD GOAD ANY ADJUDICATING AUTHORITY TO CONFIRM TH E ACTION OF THE AO ? ANSWER IS NOTHING EXCEPT VOLUNTARY STATEMENT OF THE ASSESSEE HIMSELF, AND MERELY BASED ON WHICH THE LD.AO HAS MA DE THE IMPUGNED ADDITION FOR THE ASSTT.YEAR 2009-10. ADDITION HAS BEEN MADE ONLY ON THE BASIS OF THE VOLUNTARY ADMISSION ON THE PART OF THE ASSESSEE; THERE IS NO MATERIAL WITH THE DEPARTMENT THAT THE UNDISCL OSED INCOME DECLARED BY THE ASSESSEE PERTAINED TO THE ASSTT.YEA R 2009-10, WHICH FACT RIGHTLY OBSERVED BY THE LD.CIT(A) IN HIS IMPUG NED ORDER. THE ASSESSEE HAS CATEGORICALLY STATED IN HIS STATEMENT RECORDED ON OATH ON 27.09.2010 IN REPLY TO QUESTION NO.6 THAT THE AMOUN T OF RS.20.50 CRORES WAS OFFERED FOR TAXATION IN THE ASSTT.YEAR 2 010-11, AS CASH HAS BEEN PAID TO THE NOMINEES DURING F.Y.2009-10. EVEN IN REPLY TO QUESTION NO.2, THE ASSESSEE STATED THAT HE HAS PAID CASH TO THE INTERMEDIARY DURING F.Y.2009-10, AND THEREFORE THE DISCLOSURE PERTAINS TO ASSTT.YEAR 2010-11. THE LD.CIT(A) FURTHER OBSER VED THAT THE AO HAS NOT CROSS EXAMINED THE ASSESSEE TO ESTABLISH TH AT ASSESSEE HAD FUNDS AVAILABLE WITH HIM IN THE A.Y.2009-10; NOR AN Y EVIDENCE OF INCOME FOR THE ASSTT.YEAR 2009-10 WAS AVAILABLE WIT H THE AO. EXCEPT VOLUNTARY DISCLOSURE OF THE ASSESSEE ABOUT T HE UNDISCLOSED INCOME, THERE IS NOTHING WITH THE DEPARTMENT TO EST ABLISH THAT THE UNDISCLOSED INCOME DECLARED BY THE ASSESSEE PERTAIN ED TO THE YEAR 2009-10. THE LD.CIT(A) RECORDED A FINDING THAT EN QUIRES HAVE BEEN IT(SS)A NO.239 AND 306/AHD/2014 14 CONDUCTED IN THE CASE OF ONLY SEVEN COMPANIES, WHIC H TOGETHER CONTRIBUTED A SHARE CAPITAL OF RS.12 CRORES AND THE AO STRAIGHT AWAY ASSUMED AND CONCLUDED THAT ENTIRE SHARE CAPITAL OF RS.20.50 CRORES SUBSCRIBED BY 16 ENTITIES HAS BEEN PROVIDED BY THE APPELLANT; AND EVEN AMONGST THE SEVEN COMPANIES IN RESPECT OF TPL FINAN CE, THE AO HAS FOUND CASH DEPOSIT OF RS.50.00 LAKHS WHEREAS THE CO MPANY HAS SUBSCRIBED TO AN AMOUNT OF RS.3.00 CRORES, BUT NO I NQUIRY HAS BEEN CONDUCTED BY THE AO ABOUT THE BALANCE AMOUNT OF RS. 2.50 CRORES; NOR ANY STATEMENT OF THE DIRECTORS/PRINCIPAL OFFICERS O F THIS COMPANY WAS RECORD. THIS BEING THE FACTUAL POSITION, THE ACTIO N OF THE AO IS HIGHLY DISPUTABLE AND NO MERIT TO STAND. THE BASIS FOR THE IMPUGNED ADDITION IS MERELY THE STATEMENT OF THE ASSESSEE AND NOTHING ELSE. THE MERE INVESTMENT IN THE SHARE CAPITAL MADE IN THE ASSTT.Y EAR 2009-10, IPSO FACTO DOES NOT SUGGEST THAT THE ASSESSEE HAD INCOME IN T HAT YEAR, IN THE ABSENCE OF ANY CONCRETE MATERIAL EVIDENCE TO PROVE ACCORDINGLY. EVEN OTHERWISE ALSO ULTIMATELY THE IMPUGNED AMOUNT HAS S UFFERED TAX IN THE ASSTT.YEAR 2010-11 AND EVEN THE AO HAS NOT GIVEN CR EDIT OF AMOUNT OF TAXATION IN THE ASSTT.YEAR 2010-11, WHILE ASSESSING THE AMOUNT IN THE ASSTT.YEAR 2009-10, IT AMOUNTS TO DOUBLE TAXATION. CONSIDERING ALL THESE ASPECTS, AND AFTER GOING THROUGH THE WELL REA SONED ORDER OF THE LD.CIT(A) ON THIS ISSUE, WE DO NOT FIND ANY MERIT I N THE GROUND OF APPEAL OF THE REVENUE CHALLENGING DELETION OF ADDIT ION OF RS.20,50,00,000/-. WE UPHOLD THE SAME AND REJECT TH IS GROUND OF APPEAL. 12. NEXT GROUND RAISED BY THE REVENUE IS AGAINST DE LETION OF ADDITION OF RS.41.00 LAKHS BY THE LD.CIT(A), WHICH WAS IMPOSED BY IT(SS)A NO.239 AND 306/AHD/2014 15 THE AO ON ACCOUNT OF BROKERAGE AND COMMISSION INCOM E EARNED FROM UNDISCLOSED INCOME. 13. AFTER GOING THROUGH THE RECORD, WE FIND THAT TH E IMPUGNED BROKERAGE AND COMMISSION INCOME WAS ALLEGEDLY INCUR RED BY THE ASSESSEE ON THE UNDISCLOSED INCOME OF RS.20.50 CROR ES. HOWEVER, SINCE THE SAID UNDISCLOSED INCOME DISCLOSED BY THE ASSESSEE HAS BEEN DELETED BY THE LD.CIT(A) AND CONFIRMED BY THE ITAT AS PER THE DISCUSSION HEREINABOVE, THE IMPUGNED ADDITION OF RS .41.00 LAKHS FOR THE ASSTT.YEAR 2009-10 HAS NO LEG TO STAND, AND THE SAME IS ACCORDINGLY CANCELLED. THIS GROUND OF APPEAL OF TH E REVENUE IS DISMISSED. 14. IN THE RESULT APPEAL OF THE REVENUE IS DISMISSE D. 15. COMING TO THE APPEAL OF THE ASSESSEE FOR THE AS SESSMENT YEAR 2010-11, THE ASSESSEE HAS FOUR GROUNDS OF APPEAL. HOWEVER, THE MAIN GROUND IS WITH REGARD TO CONFIRMATION ADDITION ON A CCOUNT OF BROKERAGE EXPENSES INCURRED BY THE ASSESSEE FOR INT RODUCTION OF SHARE CAPITAL/PREMIUM. THE ASSESSEE ALTERNATIVELY PLEAD ED THAT INSTEAD OF 1% AS ESTIMATED BY THE LD.CIT(A), A REASONABLE RATE OF BROKERAGE BE RESTRICTED TO 0.5%. 16. AS FACTS EMERGE FROM THE RECORD, THE LD.AO HAS MADE ADDITION OF RS.41.00 LAKHS ASSUMING THAT THE ASSESSEE HAS IN CURRED EXPENDITURE OF 2% TO 4% FOR THE PURPOSE OF OBTAINING ENTRY OF I NTRODUCTION OF SHARE CAPITAL. THE ASSESSEE SUBMITTED THAT THIS BE ING A NOTIONAL ADDITION WITHOUT ANY BASIS, AS MOST OF ENTRY OPERAT ORS HAS STATED THAT IT(SS)A NO.239 AND 306/AHD/2014 16 THEY HAD RECEIVED 0.25% TO 0.50% AS AGAINST 2% TO 4 % ESTIMATED BY THE AO. THE LD.AO HOWEVER MADE A NOTIONAL ADDITION OF RS.41.00 LAKHS AT THE RATE OF 2% OF THE CAPITAL INTRODUCED B Y THE ASSESSEE. THE ISSUE WAS AGITATED BEFORE THE LD.FIRST APPELLATE AU THORITY, WHO AFTER CONSIDERING ORDER OF THE LD.AO AND SUBMISSIONS OF T HE ASSESSEE RESTRICTED THE ADDITION TO 1% OF THE CAPITAL INTROD UCED. AGAINST PART ADDITION, THE ASSESSEE IS NOW BEFORE THE TRIBUNAL. 17. BEFORE US, THE LD.COUNSEL FOR THE ASSESSEE REIT ERATED SUBMISSIONS AS WERE MADE BEFORE THE REVENUE AUTHORITIES. HE FU RTHER SUBMITTED THAT BOTH THE AUTHORITIES ESTIMATED THE NOTIONAL AD DITION WITHOUT ANY BASIS. HE FURTHER SUBMITTED THAT EVEN ENTRY OPERAT ORS HAVE MADE STATEMENT BEFORE THE AUTHORITIES BELOW THAT THEY HA VE RECEIVED BROKERAGE COMMISSION BETWEEN 0.25% TO 0.50%, AND TH EREFORE, THE SAME BE RESTRICTED ACCORDINGLY. ON THE OTHER HAND , THE LD.DR SUPPORTED THE ORDERS OF THE REVENUE AUTHORITIES. 18. ON DUE CONSIDERATION OF THE ABOVE FACTS AND CIR CUMSTANCES OF THE CASE, AND AFTER GOING THROUGH THE MATERIAL AVAI LABLE ON RECORD, WE FIND THAT BOTH THE AUTHORITIES BELOW CALCULATED THE BROKERAGE COMMISSION ON SOME ASSUMPTION WITHOUT ANY BASIS. IT MAY BE NOTED THAT NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH PERTAINING TO BROKERAGE STATED TO BE PAID BY THE AS SESSEE. THE AUTHORITIES BELOW MENTIONED IN THEIR IMPUGNED ORDER THAT AS PER THE PREVAILING MARKET PRACTICE, THE RANGE OF COMMISSION /BROKERAGE WOULD BE IN THE RANGE OF 2% TO 4%, BUT THERE IS NO SUCH I NSTANCE MENTIONED AT THE END OF THE AUTHORITIES TO CORROBORATE THE SA ME. THE ONLY MATERIAL WITH THE REVENUE AUTHORITIES IS THAT OF TH E STATEMENT OF ENTRY IT(SS)A NO.239 AND 306/AHD/2014 17 OPERATORS CONFIRMING THAT THEY HAVE RECEIVED BROKER AGE/COMMISSION AT THE RATE OF 0.25% TO 0.5% FROM THE ASSESSEE, WHICH FACT HAS NOT BEEN DOUBTED BY THE AUTHORITIES. THOUGH THE LD.CIT(A) HAS TO SOME EXTENT JUSTIFIED TO RESTRICT THE IMPUGNED DISALLOWANCE, BU T HE HAS NOT GIVEN DUE WEIGHTAGE TO THE ONLY EVIDENCE AVAILABLE ON REC ORD IN FORM OF STATEMENT OF ENTRY OPERATORS HAS NOT BEEN CONSIDERE D LOGICALLY. THEREFORE, WE INCLINE TO GIVE FURTHER RELIEF TO THE ASSESSEE BY RESTRICTING ADDITION AT 0.5% OF THE SHARE CAPITAL/P REMIUM INTRODUCED BY THE ASSESSEE. ACCORDINGLY, IMPUGNED ADDITION I S HEREBY RESTRICTED TO 0.5% I.E. ASSESSEE WOULD GET FURTHER RELIEF OF R S.10,50,000/-, IN OTHER WORDS, ADDITION NOW STAND CONFIRMED AT RS.10, 50,000/-. 10. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED AND THAT OF ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE COURT ON 12 TH APRIL, 2021 AT AHMEDABAD. SD/ - (AMARJIT SINGH) ACCOUNTANT MEMBER SD/ - (RAJPAL YADAV) VICE-PRESIDENT AHMEDABAD; DATED 12/04/2021