MUKESH A MOTASHA, MUMBAI V. DCIT 9(3), MUMBAI

ITSSA 57/MUM/2011

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 2280 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 7 month(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 03-06-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 21-05-2014
• Assessment Year: misc
• Appeal Filed On: 03-11-2011
• Court: TRIBUNAL
• Department Lawyers: G N MUKNANA
• Assessee Lawyers: D P BAPAT; MAYUR SHAH
• Keywords: Unexplained expenditure; Source of fund; Block assessment

Judgement Text

, , B, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER IT(SS)A NO.57/MUM/2011 ASSESSMENT YEAR: 01.04.1987 TO 02.09.1997 MUKESH A MOTASHA, TRIBHUVAN 6 DAKSHINA MURTHUY CO-OP HSG SOCIETY, 10 TH ROAD, J.V.P.D SCHEME, VILE PARLE (W) MUMBAI-400049 / VS. D CIT - 9 ( 3 ), AAYAKAR BHAVAN, MUMBAI-400020 (ASSESSEE ) (REVENUE) P.A. NO. AACPM3116H / ASSESSEE BY SHRI D.P. BAPAT & SHRI MAYUR SHAH (AR) / REVENUE BY SHRI G.N. MUKNANA ( DR) / DATE OF HEARING : 18/05/2016 / DATE OF ORDER: 03/06/2016 / O R D E R PER ASHWANI TANEJA (ACCOUNTANT MEMBER): THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS), MUMBAI- 20 {(IN SHORT CIT(A)}, DATED 20.09.2011 PASSED AG AINST PENALTY ORDER U/S 158BFA(2) R.W.S.254 OF THE ACT DATED 08.1 2.2010 ON THE FOLLOWING GROUNDS: MUKESH A MOTASHA 2 1.THE LEARNED CIT(A) ERRED IN HOLDING THAT THE ASSESSING OFFICER WAS JUSTIFIED IN LEVYING PENALTY U/S.158BFA (2) OF THE ACT AT RS.1197,000/-. IT IS P RAYED THAT THE PENALTY SO LEVIED BE DIRECTED TO BE DELETE D. 2.THE LEARNED CIT(A) ERRED IN HOLDING THAT THE APPE LLANT HAS NOT SUBSTANTIATED THE SOURCE OF FUNDS FOR MEETI NG THE ALLEGED UNEXPLAINED RENOVATION EXPENDITURE OVERLOOKING THE DETAILED DOCUMENTATION, SUBMISSIONS AND EXPLANATIONS TO SHOW HOW THE SOURCE OF FUNDS OF THE SAID EXPENDITURE IS ACCOUNTED FOR AND SUBJECTED TO TAX IN THE HANDS OF M/S.VINOD K. SHAH HUF. IT IS PRAYED THAT THE AO BE DIRECTED TO TREAT THE SAID EXPENDITURE AS DULY EXPLAINED SO AS TO DELETED THE PENALTY LEVIED U/S.158BFA(2) OF THE ACT AT RS.11,97 ,000/-. 3.THE APPELLANT CRAVES LEAVE TO AMEND, ALTER OR MOD IFY THE ABOVE GROUNDS OF APPEAL OR TO ADD FRESH GROUNDS OF APPEAL, IF FOUND NECESSARY. 2. DURING THE COURSE OF HEARING, ARGUMENTS WERE MADE B Y SHRI D.P. BAPAT & SHRI MAYUR SHAH, AUTHORISED REPRESENTATIVE (AR) ON BEHALF OF THE ASSESSEE AND B Y SHRI G.N. MUKNANA, DEPARTMENTAL REPRESENTATIVE (DR) ON BEHALF OF THE REVENUE. 3. THE SOLITARY ISSUE RAISED IN THIS APPEAL IS WITH R EGARD TO LEVY OF PENALTY AT RS.11,97,000/- U/S 158BFA ON THE GROU ND OF UNEXPLAINED RENOVATION EXPENDITURE WAS ALLEGEDLY MA DE BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION. 3.1. THE BRIEF HISTORY OF THE CASE IS THAT THE HISTORY OF THE CASE IS THAT THERE WAS A SEARCH ACTION IN THE PREMI SES O M/S. NATIONAL LEATHER MANUFACTURING COMPANY (A PARTNERSHIP FIRM) AND ON ITS PARTNERS INCLUDING THE ASSESSEE. BLOCK ASSESSMENT PROCEEDINGS WERE INITIAT ED MUKESH A MOTASHA 3 AGAINST ALL AND ASSESSMENTS WERE DULY COMPLETED. TH E ASSESSEE PREFERRED QUANTUM APPEAL BEFORE CIT(A) AND THEREAFTER BEFORE THE HON'BLE ITAT WHEREIN AN ADDITION TO THE EXTENT OF RS.19.95 LACS REPRESENTIN G UNEXPLAINED EXPENDITURE ON RENOVATION OF ASSESSEES RESIDENTIAL PREMISES WAS CONFIRMED. DURING THE QUANTUM APPELLATE PROCEEDINGS, THE ASSESSEE HAS HAD TAKEN A PLEA BEFORE THE CIT(A) AND HON'BLE ITAT THA T THE SAID EXPENDITURE OF RS.19.95 LAKHS WAS INCURRED OUT OF THE FUNDS AVAILABLE FROM THE HOUSING PROJECTS (IN T HE NAME OF M/S AWAS DEVELOPERS) OF M/S VINOD K.SHAH (H UF) BELONGING TO ONE OF THE PARTNERS. CONSEQUENT TO THE CONFIRMATION IN QUANTUM APPEALS, THE ASSESSING OFFI CER LEVIED PENALTY, WHICH WAS CONFIRMED BY THE EARLIER CIT(A). THE PENALTY WAS CONFIRMED IN APPEAL ONLY TO THE EXT ENT OF RS. 19.95 LAKHS. THE ITAT VIDE ITS ORDER DATED 26.06.20 09 RESTORED THE PENALTY MATTER TO THE FILE OF AO WITH THE FOLLO WING REMARKS:- 'SINCE THIS ISSUE WAS NOT EXAMINED IN ITS CORRECTIV E PERSPECTIVE, WE ARE OF THE OPINION THAT THAT THE REGARDING PENALTY ON THIS AMOUNT SHOULD BE RESTORED BACK TO THE ASSESSING OFFICER WITH THE DIRECTION TO EXAMINE WHETHER THE SAID AMOUNT WAS DISCLOSED IN SHRI V.K.SHAH, HUF'S CASE. THE ORDER OF THE ASSESSI NG OFFICER IN THE SAID CASE PLACED ON RECORD DOES NOT INDICATE THE NATURE OF THE AMOUNTS DISCLOSED FOR OUR EXAMINATION. IN VIEW OF THIS IT MAY BE REQUIRED TO BE VERIFIED THE NATURE OF THE AMOUNTS DISCLOSED IN THE SAID SHRI V.K.SHAH, HUF'S CASE. FURTHER, TO EXAMINE WHETHER ANY OF THE AMOUNTS DISCLOSED HAS ANY MUKESH A MOTASHA 4 RELATION TO THE AMOUNTS INVESTED BY THE ASSESSEE. THE MATTER IS RESTORED BACK TO THE ASSESSING OFFICE R TO EXAMINE ALL THE CONTENTIONS OF THE BASIS OF THE FAC TS AVAILABLE ON RECORD IN THE CASE OF SHRI V.K.SHAH AN D ASSESSEE AND EXAMINE THE ISSUE AFRESH WHETHER THERE IS ANY BONA FIDE REASON FOR NOT DISCLOSING TH E AMOUNTS IN ASSESSEE'S HANDS. IF THERE IS NO BONA FI DE REASON TO DISCLOSE THE AMOUNT IN ASSESSEE'S HANDS T HEN PENALTY IS WARRANTED ON THE AMOUNTS CONFIRMED IN TH E QUANTUM APPEAL. WITH THESE DIRECTIONS THE MATTER IS RESTORED BACK TO THE ASSESSING OFFICER TO EXAMIN E IT AFRESH. THE ORDER OF PENALTY IS RESTORED BACK TO THE ASSESSING OFFICER. THE ASSESSEE SHOULD BE GIVEN AN OPPORTUNITY TO SUPPORT THE CONTENTION MADE.' 3.2. CONSEQUENT TO THE ABOVE, THE AO HAS FRAMED THIS PENALTY ORDER DATED 08.12.2010. THE OPERATIVE PORTI ON OF THE ASSESSING OFFICER'S ORDER, MORE PARTICULARLY, P ARE 3 AND PARA 10 ARE QUOTED AS UNDER: PARA 3 .........IT IS SEEN FROM THE RECORD THAT THE HON'BL E ITAT HAS CONSIDERED THE ISSUE AND CONFIRMED THE ADDITION OF RS . 19.95 LAKHS IN THE QUANTUM APPEAL OF THE ASSESSEE VIDE ORDER IN 17 - (SS) NO. 157 & 151/MUM/2000 DATED 03.05.2006. IT WAS SUBMITTED BY THE ASSESSEE THAT IMPUGNED SUM OF RS. 19.95 LAKHS WAS DECLARED IN THE BLOCK RETURN OF SHRI VINOD K. S HAH (HUF), BEING ONE OF THE GROUP ENTITIES. IT IS PERTI NENT TO MENTION HERE THAT THE ASSESSEE HAD HIMSELF STATED I N HIS LETTER DATED 27.08.1999 THAT HE HAD INCURRED AN EXPENDITURE OF RS.31,95 LAKHS FOR INTERIOR DESIGNIN G OUT OF WHICH RS.12 LAKHS HAD BEEN ACCOUNTED FOR IN THE BOOKS OF ACCOUNTS. THE AMOUNT OF RS. 12 LAKHS MUKESH A MOTASHA 5 HAD ACTUALLY BEEN SPENT BY THE ASSESSEE AND RS. 19.95 LAKHS WAS SPENT IN CASH AS PER HIS OWN STATEMENT MADE IN THE LETTER DATED 27.09. 1999. THE EXPENDITURE OF RS.31.95 LAKHS ALSO FINDS SUPPORT FR OM THE PAPERS DISCOVERED FROM THE PREMISES OF MRS. VARSHA DESAI. THE DISALLOWANCE MADE BY THE ASSESSING OFFICER TO THE EXTENT OF RS. 19.95 LAKHS INCURRED BY THE ASSESSEE IN CASH FOR INTERIOR DECORATION WAS AL SO CONFIRMED BY HON'BLE TRIBUNAL AS DISCUSSED ABOVE. T HE ASSESSEE HAS NOT BROUGHT ANYTHING NEW ON RECORD WHI CH SHOWS THAT THERE WAS A NO BONAFIDE REASON FOR NON- DISCLOSING THE SAID INCOME IN THE HANDS OF THE ASSESSEE......... PARA 10 ............MERELY FOR THE REASON THAT THE ABOVE SA ID AMOUNT WAS DECLARED BY ONE OF THE GROUP ENTITY BEFORE THE HON'BLE SETTLEMENT COMMISSION DOES NOT PROVE THAT T HE AMOUNT INCURRED IN CASH FOR INTERIOR DECORATION BY THE ASSESSEE HAD ACTUALLY BEEN INCURRED BY THE OTHER GR OUP ENTITY. IT WILL NOT BE OUT OF PLACE TO MENTION HERE THAT THE ASSESSEE HIMSELF IN LETTER HAS CONFIRMED THAT HE HA D INCURRED AN EXPENDITURE OF RS.39.95 IAKHS ON INTERI OR DECORATION WHICH IS ALSO SUPPORTED BY THE DOCUMENT FOUND IN THE PREMISES OF INTERIOR DECORATOR, MRS. VARSHA DESAI. THEREFORE, SUBSEQUENT DENIAL OF THE ASSESSEE TO THI S EFFECT THAT THE EARLIER STATEMENT WAS WRONG CANNOT BE GIVE N ANY CREDENCE. ALL THE DOCUMENTARY EVIDENCE/STATEMENT CL EARLY ESTABLISH THE FACT THAT THE ASSESSEE HAD DELIBERATE LY NOT DISCLOSED THE AMOUNT SPENT IN CASH FOR INTERIOR DECORATION, IN ITS RETURN FILED FOR THE BLOCK PERIO D. FURTHER THE EXPLANATION OF THE ASSESSEE REMAINED TO BE SUBSTANTIATED WITH ANY LEGITIMATE SUPPORTING EVIDEN T/ANY MATERIAL AND THUS THE EXPLANATION REMAINED TO BE PR OVED MUKESH A MOTASHA 6 AS BONAFIDE HENCE IT IS A FIT CASE FOR LEVYING PENA LTY U/S. 158BFA(2) OF THE ACT.....' 3.3. BEING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFO RE THE LD. CIT(A) IN THE SECOND ROUND WHEREIN THE ASSESSEE TOOK THE SAME STAND WHICH WAS TAKEN BY HIM AT THE TIME OF FI RST ROUND. BUT LD. CIT(A) DID NOT AGREE WITH THE SUBMISSIONS O F THE ASSESSEE AND CONFIRMED THE PENALTY ORDER PASSED BY THE AO WITH THE FOLLOWING OBSERVATIONS: THE FACT THAT THE SAID AMOUNT WAS DISCLOSED IN V.K.SHAH (HUF)'S CASE REMAINS UNVERIFIED AND UNSUBSTANTIATED. A RECORD, THE APPELLANT VIDE LETTE R DATED 27.09.2009 HAD ADMITTED THAT OUT OF AN EXPENDITURE RS.31.95 LAKHS FOR INTERIOR DESIGNING ONLY RS.12 LAKHS HAS BEEN ACCOUNTED IN HIS REGULAR BOOKS OF ACCOUNTS AND THE BALANCE WAS SPENT IN UNACCOUNTED CASH. THE TOTAL EXPENDITURE OF RS.31.95 LAKHS ALSO GETS CORROBORATED FROM THE RECOVERY OF P APERS AT THE PREMISE OF INTERIOR DESIGNER MS.VARSHA DESA SETTLEMENT COMMISSION TOO HAS NOT GIVEN ANY FINDING THAT THE DISCLOSURE DE BY M/S.VINOD K.SHAH (HUF) COVERS THIS UNEXPLAINED EXPENDITURE OF RS.19.9 LAKS H. TO SUM UP, ON FACTS, THE DOCUMENTARY EV IDENCES ARE CLEARLY AGAINST THE APPELLANT. HE HAD HIMSELF ADMITTED OF SPENDING RS.12 LAKHS THROUGH REGULAR BOOKS OF ACCOUNTS OUT OF TOTAL EXPENDITURE OF RS.31.95 LAKHS . HENCE CLAIMING THIS SET-OFF AGAINST ANY DISCLOSURE MADE BEFORE SETTLEMENT COMMISSION BY M/S.VINOD K.SHAH (HUF) IS CONTRARY TO THE MATERIAL ON RECORD. THUS, THE EXPLANATION OF THE APPELLANT IS COMPLETEL Y UNSUBSTANTIATED AND HENCE NOT BONAFIDE. SINCE THE APPELLANT CONDUCT AND EXPLANATION IS HELD TO BE MALAFIDE, SO IT IS HELD THAT THE PENALTY WAS CORREC TLY LEVIED BY THE ASSESSING OFFICER AND THE SAME IS CONFIRMED. MUKESH A MOTASHA 7 3.4. BEING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFO RE THE TRIBUNAL. DURING THE COURSE OF HEARING, IT HAS BEEN SUBMITTED BY THE LD. COUNSEL THAT LOWER AUTHORITIES COULD NOT PROPERLY UNDERSTAND THE FACTS AND EVIDENCES FILED BY THE ASS ESSEE. THE LD. COUNSEL MADE EXHAUSTIVE SUBMISSIONS BEFORE US DEMONSTRATING THAT ORDER OF THE TRIBUNAL HAS NOT BE EN FOLLOWED. IT WAS SUBMITTED THAT DESPITE THERE BEING A CLEAR DIRECTION BY THE TRIBUNAL TO EXAMINE THE MAIN CONTE NTION OF THE ASSESSEE THAT THE EXPENDITURE MADE BY THE ASSES SEE HAS ALREADY BEEN DISCLOSED BY WAY OF ITS SOURCE FROM TH E WITHDRAWALS MADE BY V.K. SHAH (HUF)S CASE, HAS BEE N REJECTED WITHOUT EXAMINING EVIDENCES SHOWN BY THE A SSESSEE. THE LD. COUNSEL HAS ALSO SUBMITTED BRIEF SYNOPSIS W HEREIN HE HAS MET ALL THE ADVERSE SUBMISSIONS OF THE AO AS WE LL AS LD. CIT(A). HE HAS DRAWN OUR ATTENTION ON VARIOUS PAGES OF THE PAPER BOOK AS HAVE BEEN REFERRED IN THE SYNOPSIS AN D STATED THAT THESE EVIDENCES HAVE NOT BEEN NEITHER CONSIDER ED NOR REJECTED BEFORE REJECTING THE CLAIM OF THE ASSESSEE . FOR THE SAKE OF READY REFERENCE, WE ARE INCLINED TO REPRODUCE AL L THESE CONTENTIONS MADE BY THE LD. COUNSEL BEFORE US: FINDINGS OF THE ASSESSING OFFICER: FINDING REBUTTALS I AM UNABLE TO AGREE WITH THE SUBMISSION OF THE ASSESSEE STATING THAT PENALTY PROCEEDINGS BE KEPT PENDING TILL THE DISPOSAL OF THE SETTLEMENT APPLICATION OF THE SUBMISSION WAS FAIR IN VIEW OF THE DIRECTIONS OF THE TRIBUNAL THAT 'THE ORDER OF THE AD IN THE SAID CASE PLACED ON RECORD DOES NOT INDICATE THE NATURE OF THE AMOUNTS DISCLOSED FOR OUR EXAMINATION. IN VIEW OF THIS IT MAY BE MUKESH A MOTASHA 8 VINOD K SHAH HUF REQUIRED TO BE VERIFIED THE NATURE OF THE AMOUNTS DISCLOSED IN THE SAID V K SHAH HUE'S CASE. FURTHER TO EXAMINE WHETHER ANY OF THE AMOUNTS DISCLOSED HAS ANY RELATION TO THE AMOUNTS INVESTED BY THE ASSESSEE. THESE ASPECTS WERE INVOLVED IN THE PROCEEDINGS BEFORE THE SETTLEMENT COMMISSION AND HENCE THIS SUBMISSION OF THE ASSESSEE WAS JUSTIFIED. THE ASSESSEE HAS NOT BROUGHT ANYTHING NEW ON THE RECORD WHICH SHOWS THAT THERE WAS A BONA FIDE REASON FOR NON-DISCLOSING THE SAID INCOME IN THE HANDS OF THE ASSESSEE. THE ASSESSEE SOUGHT TO BRING ON RECORD THE ORDER OF THE SETTLEMENT COMMISSION, AWAITING COMPLETION OF THE PROCEEDINGS; HOWEVER, THIS REQUEST WAS DENIED. WITHOUT PREJUDICE, ASSESSEE IS ENTITLED TO PLEAD FOR RELIEF FROM PENALTY WITHOUT BRINGING ANYTHING NEW ON RECORD BY SEEKING RE-APPRAISAL OF THE EXISTING MATERIALS. RELIANCE PLACED ON THIRD MEMBER CASES OF TAT: 1. 137 LTD 53, 128( PARA 18) ; 2. 125 LTD 313 ( PARA 12). SUCH RE-APPRAISAL WAS SOUGHT IN THE EXPLANATION FILED WITH THE CIT (A) IN WHICH BONA FIDE REASONS WERE CANVASSED FOR NOT INCLUDING THE IMPUGNED ADDITION IN THE BLOCK RETURN - COPY OF EXPLANATION PLACED AT PAGES 7 TO 13 OF THE PB THE ASSESSEE'S PLEA BEFORE THE AD AND LEARNED CIT(A) AND BEFORE THE HON'BLE SETTLEMENT COMMISSION ARE ENTIRELY DIFFERENT FROM EACH OTHER. WILL BE DEALT WITH IN THE COURSE OF MEETING THE FINDINGS OF CIT (A). MUKESH A MOTASHA 9 FINDINGS OF CIT (A) FINDINGS 1. THE SETTLEMENT COMMISSION TOO HAS NOT GIVEN ANY FINDING THAT THE DISCLOSURES MADE BY VINOD K SHAH HUF COVERS THIS UNEXPLAINED EXPENDITURE OF RS 19.95 LACS. 2. THE CLAIM FOR SET-OFF IS CONTRARY TO THE MATERIAL O N RECORD. 3. THE EXPLANATION OF THE APPELLANT IS COMPLETELY UNSUBSTANTIATED AND HENCE NOT BONA FIDE. REBUTTALS 1. RELIANCE ON THE STATEMENT OF FACTS FILED BEFORE THE SETTLEMENT COMMISSION AS PER PAGES 70 AND 71 OF THE PB. 2. RELIANCE IS THEN PLACED ON THE RELATED FINDINGS OF THE SETTLEMENT COMMISSION AS PER PAGES 14,16,17,22,23,27,29,30,33,34,36,38,39,54&55 OF THE PB. 3. CORROBORATIVE MATERIAL ON RECORD: A) STATEMENTS RECORDED UNDER SECTION 132(L) AT THE TIME OF SEARCH (EXTRACTED ON PAGES 7-9-12 OF THE PB ) STATING THE UTILIZATION OF INCOME OF VINOD K SHAH HUF FOR MEETING THE RENOVATION EXPENSES. B) SUBMISSIONS DATED 27/8/1999 IN THE COURSE OF THE ASSESSMENT PROCEEDINGS AS PER PAGE 190 OF THE PB. 4.THE FINDING OF THE AO THAT VARYING PLEAS RAISED W ERE RAISED BY THE ASSESSEE IN THE COURSE OF THE ASSESSM ENT PROCEEDINGS, APPELLATE PROCEEDINGS AND BEFORE THE SETTLEMENT COMMISSION IS NOT JUSTIFIED WITH REFEREN CE TO THE RECORDS; SO ALSO THE FINDING OF THE LEARNED CIT(A) THAT CLAIM FOR SET-OFF WAS CONTRARY TO THE MATERIAL ON RECORD. 5. ON THE BASIS OF THE AFORESAID, THE EXPLANATION W AS FAIRLY SUBSTANTIATED AND NOT DISPROVED BY THE AUTHORITIES. 6. WITHOUT PREJUDICE, IF THE EXPLANATION IS BONA-FI DE, THE ASSESSEE IS DISCHARGED FROM SUBSTANTIATING THE EXPLANATION. RELIANCE IS PLACED ON THE DECISION OF ITAT REPORTED IN 137 LTD 53 (TM): 7. BONA FIDE PLEA IS FOUNDED ON THE FOLLOWING GROUN DS: A. CONSISTENCY OF EXPLANATIONS AT VARIOUS STAGES OF TH E PROCEEDINGS. B. FINDINGS OF THE SETTLEMENT COMMISSION PERMITTING MUKESH A MOTASHA 10 TELESCOPING OF RENOVATION EXPENSES OF THE OTHER MEMBERS OF THE GROUP AND ESTABLISHING THE RELATION BETWEEN THE RENOVATION EXPENSES AND THE UNDISCLOSED INCOME OF V K SHAH HUF. C. AVAILABILITY OF SURPLUS FUNDS. D. FACTS DO NOT SUFFER FROM ANY AFTER-THOUGHT EXPLANATIONS BY THE ASSESSEE . 3.5. IT WAS SUBMITTED BY THE LD. COUNSEL AFTER DRAWING OUR ATTENTION OF VARIOUS PAGES OF THE PAPER BOOK THAT P ENALTY HAS BEEN LEVIED AND CONFIRMED BY THE LOWER AUTHORITIES IN A HIGHLY UNFAIR MANNER AND THAT TOO BY DISREGARDING THE CLEA R DIRECTION OF THE TRIBUNAL GIVEN BY IT IN THE FIRST ROUND. 3.6 . WE HAVE GONE THROUGH THE ORDERS OF THE LOWER AUTH ORITIES AND FIND FORCE IN THE ARGUMENT OF LD. COUNSEL THAT ORDER OF THE TRIBUNAL HAS NOT BEEN FOLLOWED IN SPIRIT. VARIOUS C ONTENTIONS MADE BY THE ASSESSEE HAVE NOT BEEN MET. THE EVIDENC ES SHOWN BY THE ASSESSEE TO PROVE ITS CLAIM ABOUT SOURCE OF EXPENDITURE HAVING BEEN MET FROM THE FUNDS OF V.K. SHAH (HUF) W AS NOT EXAMINED OBJECTIVELY. THE ORDER PASSED BY THE LD. C IT(A) WAS ALSO CRYPTIC AND NON-SPEAKING. IN VIEW OF THESE CIR CUMSTANCES AND TO MEET THE ENDS OF JUSTICE, WE FIND IT APPROPR IATE TO SEND THIS MATTER BACK TO THE FILE OF THE AO. THE AO SHAL L EXAMINE ALL THE AFORESAID EVIDENCES AND CONTENTIONS AS HAVE BEE N REPRODUCED IN OUR ORDER ABOVE. THE ASSESSEE IS FREE TO RAISE ANY OTHER LEGAL AND FACTUAL ISSUES AND MAY SUBMIT R EQUISITE DETAILS AND DOCUMENTS IN SUPPORT OF ITS CONTENTION FOR WHICH THE AO SHALL GIVE ADEQUATE OPPORTUNITY OF HEARING T O THE ASSESSEE. THE AO SHALL OBJECTIVELY TAKEN INTO ACCOU NT ALL THE MUKESH A MOTASHA 11 SUBMISSIONS AND EVIDENCES AS MAY BE BROUGHT ON RECO RD BY THE ASSESSEE BEFORE DECIDING THE ISSUE OF PENALTY A FRESH. 4. IN THE RESULT, APPEAL FILED BY THE ASSESSEE MAY BE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD JUNE, 2016. SD/- (MAHAVIR SINGH) SD/- (ASHWANI TANEJA) ! / JUDICIAL MEMBER '! / ACCOUNTANT MEMBER MUMBAI; DATED:03 /06 /2016 CTX? P.S/. .. # $%&'&($ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !'# / THE RESPONDENT. 3. $# $# % ( ) / THE CIT, MUMBAI. 4. $# $# % / CIT(A)- , MUMBAI 5. ()* # !+ , $# # +- , / DR, ITAT, MUMBAI 6. *. / / GUARD FILE. / BY ORDER, '#( ! //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI