Shri Sanjay Singh Chauhan, Lucknow V. Deputy Commissioner of Income Tax, Range- 6, Lucknow

SA 02/LKW/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0238 (ITAT-LUCKNOW)
• Duration Of Justice: 5 month(s) 23 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 27-06-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2015-2016
• Appeal Filed On: 04-01-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: TAKING PEAK CREDIT BY CONSIDERING
• Keywords: Unexplained cash credit; Gift; Income from undisclosed sources; Search and seizure; Principle of natural justice; Peak credit; Application of stay; Block assessment; Set aside
• Section: 131; 68; 263; 132; 154; 13; 20

Judgement Text

STAY APPLICATION NO.02/LKW/2019 (IN I.T.A. NO.400/LKW/2018 ASSESSMENT YEAR:2015-16 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI A. D. JAIN, VICE PRESIDENT AND SHRI T. S. KAPOOR, ACCOUNTANT MEMBER STAY APPLICATION NO.02/LKW/2019 (IN I.T.A. NO.400/LKW/2018) ASSESSMENT YEAR:2015-16 & I.T.A. NO.400/LKW/2018) ASSESSMENT YEAR:2015-16 SHRI SANJAY SINGH CHAUHAN, E-7, LDA COLONY, SECTOR-C-1, KANPUR ROAD, LUCKNOW. PAN:AISPC 8502 F VS. DY.C.I.T., RANGE-6, LUCKNOW. (APPELLANT) (RESPONDENT) O R D E R PER T. S. KAPOOR, A.M. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF LEARNED CIT(A)-II, LUCKNOW DATED 13/03/2018 PERTAIN ING TO ASSESSMENT YEAR 2015-2016. IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. BECAUSE THE AUTHORITIES BELOW HAVE ERRED IN LAW AND ON FACTS IN MAKING ADDITION OF RS.216,75,63,154/- (SAY RS.216.76 CRORES) ON THE BASIS OF BOOK REFERRED TO AS DUPLIC ATE BOOK MARKED AS ANNEXUREA2 FOUND FROM THE PREMISES OF TH E APPELLANT, DURING THE COURSE OF SURVEY U/S 133A/SEA RCH AND APPELLANT BY MS SWETA MITTAL, F.C.A. RESPONDENT BY SHRI SUSHIL KUMAR MADHUK, CIT, D.R. DATE OF HEARING 20 / 02 /201 9 DATE OF PRONOUNCEMENT 28/02/2019 STAY APPLICATION NO.02/LKW/2019 (IN I.T.A. NO.400/LKW/2018 ASSESSMENT YEAR:2015-16 2 SEIZURE ACTION U/S 132(1) ON 13/01/2015 AT HIS PREM ISES AT DELHI. 2. BECAUSE LOOKING TO THE RECORD REFERRED TO AS 'DU PLICATE BOOK', IT WAS CLEARLY BORNE OUT THAT A) THE APPELLANT WAS MERELY A COURIER, HANDLING CAS H ON BEHALF OF OTHERS; B) NAMES OF THE PERSONS ON WHOSE BEHALF CASH WAS BEING HANDLED BY HIM WERE DULY MENTIONED IN THE SAID RECORDS; C) AGAINST THE RECEIPTS AGGREGATING RS.216,75,63,154/- THERE WERE DELIVERIES ALSO OF CASH WHICH TOO WERE RECORDED IN THE SAID DUPLICATE BOOK (AS REFERRED TO BY THE AUTHORITIES BELOW); AND D) THE APPELLANT WAS IN RECEIPT OF BROKERAGE AND ACCORDINGLY, THE APPELLANT COULD NOT HAVE BEEN SUBJECTED TO ASSESSMENT ON THE BASIS AT RECEIPTS AGGREGATING RS.216,75,63,154/- (AS FOUND RECORDED IN THE 'DUPLI CATE BOOK AND THE ADDITION MADE/SUSTAINED BY THE AUTHORITIES BELOW WAS WHOLLY ILLEGAL. 3. BECAUSE KEEPING IN VIEW THE PROVISIONS CONTAINED IN LAW, PARTICULARLY SECTION 132(4A) READ WITH SECTION 292C , THE EXPLANATION GIVEN BY THE APPELLANT AT THE TIME OF S URVEY/ SEARCH AND LATER ON DURING THE COURSE OF ASSESSMENT PROCEE DINGS, WAS LIABLE TO BE ACCEPTED, AND NO ADDITION FOR SUMS FOU ND ENTERED INTO THE SAID DUPLICATE BOOK (AS REFERRED TO BY T HE AUTHORITIES BELOW) COULD HAVE BEEN MADE EITHER ON FACTS OR IN L AW. 4. BECAUSE, IN ANY CASE AND LOOKING TO THE MANNER I N WHICH THE ENTRIES WERE FOUND RECORDED IN THE SEIZED MATER IAL, REFERRED TO AS 'DUPLICATE BOOK' BY THE AUTHORITIES BELOW) AN D ON A DUE CONSIDERATION OF SETTLED POSITION OF LAW, ONLY PEAK OF SUCH RECEIPTS/ PAYMENTS COULD HAVE BEEN CONSIDERED BY TH E AUTHORITIES BELOW, FOR THE PURPOSES OF MAKING ASSES SMENT IN THE CASE OF THE APPELLANT. 5. BECAUSE ON A SETTLED PRINCIPLE OF LAW THAT TAXES CAN BE COLLECTED ONLY ON THE BASIS OF INCOME AS FOUND TO B E ASSESSABLE UNDER THE ACT, IRRESPECTIVE OF ANY BOOK ENTRY/ INCO ME SHOWN IN THE 'RETURN', THE CIT(A) SHOULD HAVE HELD THAT ONLY PEAK OF STAY APPLICATION NO.02/LKW/2019 (IN I.T.A. NO.400/LKW/2018 ASSESSMENT YEAR:2015-16 3 RECEIPTS /PAYMENTS AS ARRANGED DATE WISE, COULD HAV E BEEN CONSIDERED AS INCOME OF THE APPELLANT EVEN AFTER HI S EXPLANATION ABOUT THE ENTRIES AND THE PRESUMPTION O F LAW AS CONTAINED IN SECTION 132(4A) READ WITH SECTION 292C WERE TO BE IGNORED. 6. BECAUSE SUCH 'PEAK', AS ARRIVED AT AFTER ARRANGING RECEIPTS/ PAYMENTS DATE WISE LIABLE TO BE SUBSTITUT ED FOR RS.4,16,14,760/- AS HAD BEEN DECLARED AS INCOME OF THE APPELLANT. 7. BECAUSE THE VIEW TAKEN BY THE AUTHORITIES BELOW IS BASED ON MERE SURMISES CONJECTURES AND THE SAME WAS NOT SUSTAINABLE EITHER ON FACT OR IN LAW. 8. BECASE THE ORDER APPEALED AGAINST IS CONTRARY TO THE FACTS, LAW AND PRINCIPLES OF NATURAL JUSTICE. 2. AT THE OUTSET, LEARNED A. R. SUBMITTED THAT A SU RVEY ACTION WAS CONDUCTED ON 13/01/2015 ON THE BUSINESS PREMISES OF THE ASSESSEE AND UNACCOUNTED CASH AMOUNTING TO RS.4,16,10,000/- WAS FOUND AND THEREFORE, THE SURVEY WAS CONVERTED INTO SEARCH & SEIZURE OPER ATION. DURING THE SEARCH & SEIZURE OPERATION, A NUMBER OF DOCUMENTS W ERE FOUND. IT WAS SUBMITTED THAT A DUPLICATE BOOK MARKED AS A2 FROM PAGES 1 TO 77 WAS FOUND AND SEIZED WHEREIN DATE-WISE CASH RECEIPTS AM OUNTING TO RS.216,75,63,194/- WERE RECORDED BETWEEN THE PERIOD FROM 19/10/2014 TO 13/01/2015. LEARNED A. R. IN THIS RESPECT INVITED OUR ATTENTION TO PARA 4 OF THE ORDER OF THE ASSESSING OFFICER WHERE THE ASSESS ING OFFICER HAS NOTED THE DATE-WISE RECEIPTS AS RECORDED IN PAGES 1 TO 77 OF BOOK MARKED AS A2. LEARNED A. R. SUBMITTED THAT ASSESSEE WAS ENGAGED A S HAWALA OPERATOR WHEREBY HE USED TO COLLECT AMOUNTS FROM VARIOUS PER SONS BASED IN LUCKNOW AND USED TO PASS ON THE SAME TO THE PERSONS IN DELH I AS DIRECTED BY HIS CLIENTS IN LUCKNOW AND THE ASSESSEE USED TO EARN RS .150/- TO RS.300/- PER LAKH. LEARNED A. R. SUBMITTED THAT DURING THE RECO RDING OF STATEMENT OF THE ASSESSEE AND THE STATEMENT OF THE EMPLOYEES OF THE ASSESSEE, THE DETAILED STAY APPLICATION NO.02/LKW/2019 (IN I.T.A. NO.400/LKW/2018 ASSESSMENT YEAR:2015-16 4 MODUS OPERANDI OF THE BUSINESS OF THE ASSESSEE WAS EXPLAINED. HOWEVER, THE ASSESSING OFFICER TREATED THE ENTIRE AMOUNT AS UNEXPLAINED CREDITS AND MADE THE ADDITION U/S 68 OF THE ACT. LEARNED A. R. SUBMITTED THAT THE ASSESSEE HAS BEEN MAINTAINING CONSISTENT STAND THAT HE WAS ENGAGED IN THE BUSINESS OF HAWALA AND MONEY DID NOT BELONG TO HIM BUT THE AUTHORITIES BELOW MADE THE ADDITION BY HOLDING THAT THE ASSESSE E WAS NOT ABLE TO PROVE THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF T HE PERSONS FROM WHOM THE AMOUNT WAS RECEIVED. LEARNED A. R. IN THIS RESP ECT INVITED OUR ATTENTION TO THE STATEMENT ON OATH OF SHRI SANTOSH KUMAR AND SHRI IRSHAD KHAN WHO WERE EMPLOYEES OF THE ASSESSEE AND ALSO INVITED OUR ATTENTION TO THE STATEMENT OF THE ASSESSEE RECORDED BY THE ADIT (INV .), PLACED AT PAGES 31 TO 62 ONWARDS OF THE PAPER BOOK WHEREIN THE ASSESSE E AND EMPLOYEES HAD CLEARLY STATED THAT ASSESSEE WAS ENGAGED IN THE HA WALA BUSINESS. LEARNED A. R. SUBMITTED THAT THE SAME SUBMISSIONS WERE MADE BEFORE LEARNED CIT(A) ALSO AND ALTERNATIVE SUBMISSIONS WERE ALSO M ADE BEFORE LEARNED CIT(A) TO TAKE THE PEAK CREDIT AS INCOME OF THE ASS ESSEE. LEARNED A. R. SUBMITTED THAT SINCE THE ASSESSEE HAD RECEIVED CASH ON VARIOUS DATES TO BE DELIVERED TO PERSONS AS PER THEIR DIRECTIONS AND AS SESSEE HAD ACTUALLY DELIVERED THE SAME AND HAD RECORDED SUCH REMITTANCE S AS KHARCHA ON THE SAME PAGE IN THE SAME DIARY AND THEREFORE, THE INCO ME EARNED FROM THESE TRANSACTIONS SHOULD HAVE BEEN TAKEN AND IN THE ALTE RNATIVE, ANY PEAK AMOUNT SHOULD HAVE BEEN CONSIDERED FOR MAKING ADDIT IONS. LEARNED A. R. SUBMITTED THAT IN FACT THE ASSESSEE HAD HIMSELF DEC LARED THE CASH IMPOUNDED AS INCOME FROM OTHER SOURCES AND HAD FILE D RETURN OF INCOME AND OUR ATTENTION WAS INVITED TO COPY OF COMPUTATIO N OF INCOME PLACED AT PAGE 24 OF THE PAPER BOOK. LEARNED A. R. SUBMITTED THAT THE ASSESSEE, BEFORE THE LEARNED CIT(A), HAD RELIED ON A NUMBER O F CASE LAWS FOR THE PROPOSITION THAT WHERE THE TAX AUTHORITIES RELIED O N ONE PART OF THE TRANSACTION, THE OTHER PART OF THE TRANSACTION, REC ORDED ON THE SAME STAY APPLICATION NO.02/LKW/2019 (IN I.T.A. NO.400/LKW/2018 ASSESSMENT YEAR:2015-16 5 DOCUMENT, CANNOT BE IGNORED. IN THIS RESPECT OUR A TTENTION WAS INVITED TO PAGE 18 OF THE CIT(A)S ORDER WHERE THE LEARNED CIT (A) HAS REPRODUCED THE CASE LAWS RELIED ON BY THE ASSESSEE. LEARNED A. R. ALSO INVITED OUR ATTENTION TO A STATEMENT OF SHRI RAJNEESH KUMAR WHO WAS PRESE NT AT THE TIME OF SURVEY AND WHO HAD COME TO COLLECT AMOUNT ON BEHALF OF SOME PERSON. 3. LEARNED D. R., ON THE OTHER HAND, SUBMITTED THAT ASSESSEE WAS NOT ABLE TO PROVE THE IDENTITY, CREDITWORTHINESS AND GE NUINENESS OF THE PERSONS FROM WHOM THE AMOUNTS WERE RECEIVED. IT WAS SUBMIT TED THAT THE ASSESSING OFFICER HAD ISSUED NOTICES U/S 131 OF THE ACT TO EIGHT PERSONS OUT OF WHICH THE NOTICES WERE RETURNED UNSERVED IN CASE OF FIVE PERSONS AND ONLY TWO PERSONS APPEARED AND RECORDED THEIR STATEM ENTS WHEREIN THEY REFUSED TO HAVE ENTERED INTO ANY TRANSACTION WITH T HE ASSESSEE. THEREFORE, IT WAS ARGUED THAT THE STATEMENT OF THE ASSESSEE CA NNOT BE RELIED AND THE ASSESSEE WAS NOT ABLE TO PROVE THE IDENTITY, CREDIT WORTHINESS AND GENUINENESS OF THE PERSONS THEREFORE, AUTHORITIES B ELOW HAVE RIGHTLY MADE THE ADDITION U/S 68 OF THE ACT. 4. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE T HROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT DURING SURVEY OPERA TION CONDUCTED ON 13/01/2015, UNACCOUNTED CASH AMOUNTING TO RS.4,16,1 0,000/- WAS IMPOUNDED AND A DUPLICATE BOOK, MARKED AS A2, RUNNI NG FROM PAGES 1 TO 77, WAS ALSO SEIZED. WE FIND THAT THE ASSESSING OF FICER HAS RECORDED THE DATE-WISE RECEIPTS ON THE BASIS OF ENTRIES IN THE S O CALLED DUPLICATE BOOK AND HAS CALCULATED THE TOTAL RECEIPTS OF THE ASSESSEE F ROM 19/10/2014 TO 13/01/2015 AT RS.216,75,63,154/-. THE AUTHORITIES BELOW WANTED THE ASSESSEE TO PROVE THE GENUINENESS, CREDITWORTHINESS AND IDENTITY OF THE PERSONS FROM WHOM SUCH PAYMENTS WERE RECEIVED WHERE AS ON THE OTHER HAND THE ASSESSEE KEPT ON SAYING THAT HE WAS INVOLV ED IN THE HAWALA BUSINESS AND THE AMOUNT BELONGED TO VARIOUS PERSONS ON WHOSE DIRECTIONS STAY APPLICATION NO.02/LKW/2019 (IN I.T.A. NO.400/LKW/2018 ASSESSMENT YEAR:2015-16 6 THE SAME WAS DELIVERED TO THE PERSONS IN DELHI. TH E ASSESSING OFFICER, ON THE BASIS OF NAMES RECORDED IN THE DIARY, ISSUED NO TICES U/S 131 OF THE ACT TO 8 PERSONS OUT OF WHICH, NOTICES OF 5 PERSONS CAM E BACK UNDELIVERED WHEREAS ONE PERSON DID NOT APPEAR AND 2 PERSONS GAV E THE STATEMENT AND IN THE STATEMENT THE PERSONS COVERED U/S 131 OF THE ACT, DENIED OF HAVING ENTERED INTO ANY TRANSACTION WITH THE ASSESSEE AND THEREFORE, THE ASSESSING OFFICER HELD THE SAME TO BE UNEXPLAINED MONEY FOUND CREDITED IN THE BOOKS OF ACCOUNT AND MADE ADDITION U/S 68 OF THE ACT. BE FORE LEARNED CIT(A), DETAILED SUBMISSIONS WERE MADE BY THE ASSESSEE WHIC H WERE FORWARDED TO THE ASSESSING OFFICER FOR HIS REMAND REPORT AND IN THE REMAND REPORT, AGAIN THE ASSESSING OFFICER REITERATED HIS STAND TAKEN DU RING ASSESSMENT PROCEEDINGS. THE ASSESSEE FILED COUNTER REPLY TO T HE REMAND REPORT WHERE THE ASSESSEE ARGUED THAT THE ASSESSING OFFICER HAD NOT MADE ANY FURTHER INQUIRIES FROM THE EMPLOYEES AND HAS NOT CONSIDERED THE CONTENTIONS OF THE ASSESSEE THAT HE WAS DEALING IN HAWALA TRANSACTIONS AND THE ENTIRE RECEIPT OF THE ASSESSEE HAS BEEN MADE TAXABLE IN HIS HANDS. HOWEVER, LEARNED CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE HOLDING THAT ASSESSEE WAS NOT ABLE TO PROVE THE IDENTITY, CREDITWORTHINESS & GENU INENESS OF PERSONS FROM WHOM THE MONEY WAS RECEIVED. WE FIND THAT ASSESSEE HAD RELIED ON A NUMBER OF CASE LAWS FOR THE PROPOSITION THAT WHILE RELYING ON ONE PART OF TRANSACTION, THE OTHER PART OF THE TRANSACTION CANN OT BE IGNORED. IN THE PRESENT CASE, IN THE DIARY, MARKED AS A2 ON PAGE 1 TO 77 PLACED AT PAGES 63 TO 213 OF THE PAPER BOOK, WE FIND THAT THERE ARE RECORDING OF CASH RECEIPTS AND ALSO THERE IS MENTION OF KHARCHA WHICH HAS BEEN SUBTRACTED FROM THE TOTAL RECEIPTS AND THE BALANCE HAS BEEN CA RRIED FORWARD TO NEXT DATE AND AGAIN ON NEXT DATE THE RECEIPTS OF THAT DA TE HAVE BEEN ADDED AND KHARCHA OF THAT DAY HAS BEEN SUBTRACTED AND THIS ME THOD HAS BEEN CONTINUED TILL THE END. THE AUTHORITIES BELOW HAVE MADE THE ADDITION BY MAKING TOTAL OF RECEIPTS OF EACH DAY WHILE THEY HAV E IGNORED THE OTHER PART STAY APPLICATION NO.02/LKW/2019 (IN I.T.A. NO.400/LKW/2018 ASSESSMENT YEAR:2015-16 7 MENTIONED ON THE SAME DIARY IN THE FORM OF KHARCHA. THE LEARNED A. R. HAD ARGUED THAT THIS KHARCHA REPRESENT THE AMOUNTS OF MONEY REMITTED ON THE BASIS OF DIRECTIONS OF THE CLIENTS AND THEREFOR E, THIS SHOULD HAVE ALSO BEEN CONSIDERED WHILE WORKING OUT THE UNACCOUNTED I NCOME OF THE ASSESSEE. WE FIND THAT HON'BLE GUWAHATI HIGH COURT IN THE CASE OF KAMAL KUMAR SAHARIA VS. CIT [1995] 216 ITR 217 (GAUH) HAS HELD THAT IT WAS A SETTLED LAW THAT TAX AUTHORITIES HAVING RELIED ON O NE PART OF TRANSACTION, CANNOT REJECT THE OTHER PART OF THE SAME TRANSACTIO N. FURTHER WE FIND THAT COMMENTARY ON INCOME TAX LAW BY CHATURVEDI & PITHIS ARIAS, VOLUME 1 PAGE 375/376, 5 TH EDITION DISCUSSED THE DOCTRINE OF APPROBATE AND RE PROBATE, BEING NOT APPLICABLE TO INCOME TAX PROCEEDINGS. TH E DETAILED DISCUSSION ON THIS DOCTRINE READS AS UNDER: 'DOCTRINE OF APPROBATE AND REPROBATE, NOT APPLICABL E TO TAX PROCEEDINGS- LAW DOES NOT PERMIT A PERSON TO BOTH A PPROBATE AND REPROBATE. THIS PRINCIPLE IS BASED ON THE DOCTR INE OF ELECTION WHICH POSTULATES THAT NO PARTY CAN ACCEPT AND REJECT THE SAME INSTRUMENT AND THAT 'A PERSON CANNOT SAY A T ONE TIME THAT A TRANSACTION IS VALID AND THEREBY OBTAIN SOME ADVANTAGE, TO WHICH HE COULD ONLY BE ENTITLED ON THE FOOTING T HAT IT IS VALID, AND THEN TURN ROUND AND SAY IT IS VOID FOR THE PURP OSE OF SECURING SOME OTHER ADVANTAGE [R.N. GOSAIN V YASHPA L DHIR, (1992) 4 SCO 683 (SC)]. THIS VIEW HAS BEEN FOLLOWED IN LALSINGH ESTATE(P) LTD V CIT [(1995) 216 ITR 644, 6 50 (GAUH.)]. 'A PERSON CANNOT SAY AT ONE TIME THAT A T RANSACTION IS VALID AND THEREBY OBTAIN SOME ADVANTAGE, TO WHICH H E COULD ONLY BE ENTITLED ON THE FOOTING THAT IT IS VALID, A ND THEN TURN ROUND AND SAY IT IS VOID FOR THE PURPOSE OF SECURIN G SOME OTHER ADVANTAGE. THAT IS TO APPROBATE AND REPROBATE THE T RANSACTION' [PER SCRUTTON LJ, IN VERSCHURES CREAMERIES LTD. V H ULL & NETHERLANDS STEAMSHIP CO. LTD., (1921) 2KB 608]. TH US, THE MAXIM THAT A PERSON CANNOT 'APPROBATE AND REPROBATE ' IS ONLY ONE APPLICATION OF THE DOCTRINE OF ELECTION, AND TH AT ITS OPERATION MUST BE CONFINED TO RELIEFS CLAIMED IN RE SPECT OF THE SAME TRANSACTION AND TO THE PERSONS WHO ARE PARTIES THERETO [NAGUBAI AMMALB B. SHAMA RAO, AIR 1956 SC 593, 602; JIWAN DAS V SMT SARLA DEW, AIR 1976 ALL 216]. THE DOCTRIN E OF STAY APPLICATION NO.02/LKW/2019 (IN I.T.A. NO.400/LKW/2018 ASSESSMENT YEAR:2015-16 8 'APPROBATE AND REPROBATE' IS ONLY A SPECIES OF ESTO PPELS; IT APPLIES ONLY TO THE CONDUCT OF PARTIES. AS IN THE C ASE OF ESTOPPELS, IT CANNOT OPERATE AGAINST THE PROVISIONS OF A STATUTE. IF A PARTICULAR INCOME IS NOT TAXABLE UNDER THE INC OME-TAX ACT, IT CANNOT BE TAXED ON THE BASIS OF ESTOPPELS OR ANY OTHER EQUITABLE DOCTRINE. EQUITY IS OUT OF PLACE IN TAX L AW; A PARTICULAR INCOME IS EITHER ELIGIBLE TO TAX UNDER THE TAXING S TATUTE OR IT IS NOT. IF IT IS NOT, THE ASSESSING OFFICER HAS NO POW ER TO IMPOSE TAX ON THE SAID INCOME [CIT V M.R.P. FIRM, (1965) 6 5 ITR 67, 74 (SC); E.D.SASSOON & CO. LTD. VCIT. (1968) 70 ITR 561, 580 (BOM), AFFIRMED, (1972) 86 ITR 757 (SC); UNION OF I NDIA V ITC LTD., (1976) TAX LR 2003, 2009 (KARN.); PARI MANGAL DAS GIRDHARDAS V CIT, (1978) TAX LR (NOC) 91 (GUJ) (197 7) CTR (GUJ) 647; INDIAN ORGANIC CHEMICALS LTD. V UNION OF INDIA, (1979) TAX LR (NOC) 134 (DEL); C.V. RAMANA V CIT, ( 1990) 181 ITR 248, 256 (AP)] ONCE THE ASSESSING OFFICER ASSESSES A PARTICULAR RE CEIPT UNDER A PARTICULAR HEAD OF INCOME, THAT AMOUNT IS NO MORE A VAILABLE TO HIM FOR ASSESSMENT UNDER ANOTHER HEAD. THE REVENUE CANNOT APPROBATE AND REPROBATE. IT CANNOT BE PERMITTED TO TREAT A PART OR THE WHOLE OF THE CONSIDERATION AS DIVIDEND AND T O ASSESS THE SAME AS SUCH AND ALSO TO SAY THAT THIS WILL NOT HAV E THE EFFECT OF REDUCING THE AMOUNT OF CONSIDERATION FOR (P) LTD ., (1993) 202 ITR 932, 941, 938 (BOM)] SO MUCH SO, IT IS SETTLED LAW THAT THE TAX AUTHORIT IES HAVING RELIED ON ONE PART OF A TRANSACTION CANNOT REJECT T HE OTHER PART OF THE SAME TRANSACTION [KAMA/ KUMAR SAHARIA V CIT, (1995) 216 ITR 217, 221 (GAUH)] THE ASSESSEE HAVING TAKEN THE BENEFIT OF A PARTICUL AR DECISION OR DIRECTION CANNOT CONTEND AGAINST SUCH DECISION O R DIRECTION. THIS IS SO BECAUSE THE ASSESSEE CANNOT APPROBATE OR REPROBATE AT THE SAME TIME [HOPE (INDIA) LTD V CIT, (1993) 20 3 ITR 118, 123 (CAT)] THUS, THE RESPONDENT HAVING PREVENTED THE APPELLANT S FROM GETTING A DECLARATION THAT THE ENTIRE GIFT DEED WAS INVALID IN LIEU OF WHICH THEY GAVE UP, BECAUSE OF THE COMPROMISE, T HEIR CLAIM FOR THE PROPERTY IN DISPUTE CANNOT BE PERMITTED TO TURN ROUND NOW AND TAKE THE STAND; 'HEADS I WIN, TAILS YOU LOS E'. LAW HAS TO PROMOTE JUSTICE. THE COURTS OF EQUITY AND JUSTIC E CANNOT STAY APPLICATION NO.02/LKW/2019 (IN I.T.A. NO.400/LKW/2018 ASSESSMENT YEAR:2015-16 9 UPHOLD SUCH AN UNFAIR STAND. THE RESPONDENT CANNOT BE PERMITTED TO REPROBATE TO HIS ADVANTAGE. THE BINDIN G EFFECT OF THE COMPROMISE DECREE COULD NOT BE TAKEN AWAY AS IT WAS TO OPERATE AFTER DEATH OF THE DONOR [BAKSHI RAM V BRIJ LAL, (1994) SUPP (3) SCO 198, 200-01 (SC)]' IN VIEW OF THESE AND IN VIEW OF FACTS AND CIRCUMST ANCES, WE ARE OF THE CONSIDERED OPINION THAT AUTHORITIES BELOW SHOULD HA VE CONSIDERED THE OTHER PART OF THE TRANSACTION WHICH HAS BEEN RELIED FOR M AKING ADDITION. WE FURTHER FIND THAT ASSESSEE HAS BEEN MAINTAINING HIS STAND FROM THE VERY BEGINNING THAT HE WAS ENGAGED IN THE HAWALA BUSINES S AND FOR WHICH HE USED TO EARN INCOME RANGING FROM RS.150/- TO RS.300 /- PER LAKH. FOR THE SAKE OF CONVENIENCE, QUESTIONS AND ANSWERS NO. 5 AN D 7 OF THE ASSESSEES STATEMENT DATED 03/12/2015 RECORDED BY ADI U/S 131 OF THE ACT ARE REPRODUCED BELOW: 5: ? ' : # 8-9 ( 150 300 2 7 : 4 ? ' : 5 6 5 1 ,00,000/- ( ) 2 300 2 5 (( WE FURTHER FIND THAT THE STATEMENTS OF THE EMPLOYEE S OF THE ASSESSEE WERE ALSO RECORDED DURING THE COURSE OF SEARCH ON 13/01/ 2015 WHEREBY SHRI IRSHAAD KHAN, ONE OF THE EMPLOYEES OF THE ASSESSEE, HAD ALSO AFFIRMED THAT THE ASSESSEE WAS ENGAGED IN THE HAWALA BUSINESS. T HE RELEVANT QUESTIONS AND THEIR ANSWERS, AS REPRODUCED BY LEARNED CIT(A) ART PAGE 29 OF HIS ORDER, ARE REPRODUCED BELOW: STAY APPLICATION NO.02/LKW/2019 (IN I.T.A. NO.400/LKW/2018 ASSESSMENT YEAR:2015-16 10 5: <=( > <@ ( A , <=( <@ ? ' : F5 <=( L M <=( N@ P SMS 5 6: 4 ? ': P 10 2 / 5 2/ 1 2/ 2 2 < V ( , P ( MESSAGE < / P ( 5 ( A SIMILARLY IN THE STATEMENT OF SHRI RAJNEESH KUMAR, WHO HAD COME TO RECEIVE MONEY IN THE OFFICE OF DELHI DURING THE COURSE OF S EARCH DATED 13/02/2015, HAD ANSWERED TO QUESTION NO. 4 THAT HE HAD COME TO COLLECT RS.3,00,000/- ON BEHALF OF SHREE NAVEEN AGARWAL. THE RELEVANT QU ESTION AND ANSWER, AS REPRODUCED BY LEARNED CIT(A) AT PAGE NO. 30 AND 31 OF HIS ORDER, ARE REPRODUCED BELOW: 4 : ? ': 3 2 5 V \ 6 5 10 2 < 77 F 802376 < 2 5 ALL THESE FACTS TAKEN TOGETHER, DEMONSTRATE THAT TH E ASSESSEE WAS INDEED ENGAGED IN THE BUSINESS OF HAWALA AND RATHER THIS F ACT HAS BEEN ACCEPTED BY THE ASSESSING OFFICER IN PARA 2 OF HIS ORDER WHE RE HE HAS HELD THAT ASSESSEE WAS FOUND TO BE ENGAGED IN THE BUSINESS OF HAWALA. THEREFORE, THE ADDITION SUSTAINED BY LEARNED CIT(A) BY HOLDING THE ENTIRE INCOME BEING STAY APPLICATION NO.02/LKW/2019 (IN I.T.A. NO.400/LKW/2018 ASSESSMENT YEAR:2015-16 11 ASSESSEES UNEXPLAINED INCOME U/S 68, IS NOT JUSTIF IED AS THE MONEY DID NOT BELONG TO THE ASSESSEE. MOREOVER, WE FIND THAT THE ASSESSEE WAS NOT MAINTAINING ANY BOOKS OF ACCOUNT AND NO BOOKS OF AC COUNT WERE FOUND DURING THE SURVEY/SEARCH AND ONLY DIARY WAS FOUND A ND THEREFORE, ALSO THE ADDITION CANNOT BE MADE U/S 68 OF THE ACT AS NO AMO UNT WAS FOUND CREDITED IN THE BOOKS OF ACCOUNT. UNDER THESE CIRCUMSTANCES , WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSING OFFICER SHOULD R ECALCULATE THE UNACCOUNTED INCOME OF THE ASSESSEE BY TAKING PEAK C REDIT BY CONSIDERING BOTH DEBIT AND CREDIT ENTRIES IN THE DIARY. HON'BL E ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. FERTILIZER TRADERS [2014] 42 TA XMANN.COM 476 (ALLAHABAD) HAS HELD THAT UNDER SUCH CIRCUMSTANCES EACH CREDIT AND DEBIT ENTRY APPEARING HAS TO BE ARRANGED CHRONOLOGICALLY AND DATA-WISE AND ONLY ADDITION SHOULD BE MADE OF THE PEAK AMOUNT. THE FI NDING OF HON'BLE COURT, AS CONTAINED FROM PARA 5 ONWARDS, ARE REPRODUCED BE LOW: 5. THE BRIEF FACTS OF THE CASE ARE THAT ON 12.02.1 997, A SEARCH AND SEIZURE OPERATION WAS CONDUCTED UNDER SECTION 1 32 OF THE ACT AT THE BUSINESS AND RESIDENTIAL PREMISES OF BOTH THE A SSESSEES. M/ S. FERTILIZER TRADERS WAS ASSESSED IN THE STATUS OF FI RM, WHERE IT HAS TWO PARTNERS, NAMELY, SRI VINOD SARAF AND SRI ATUL SARA F. M/S. SARAF TRADING COMPANY WAS HAVING PARTNERS, NAMELY, SMT. U SHA DEVI SARAF; SMT. PRAKASHI DEVI SARAF, SMT. MAKHANI DEVI SARAF AND SRI ARUN KUMAR SARAOGI. THE ASSESSEES ARE ALSO INVOLVED IN T HE AGRICULTURE ACTIVITIES. DURING THE COURSE OF SEARCH, VARIOUS IN CRIMINATING DOCUMENTS WERE FOUND AND SEIZED. IT WAS ALSO FOUND T HAT THE ASSESSEES WERE MAINTAINING TWO SETS BOOKS OF ACCOUN T AND MADE THE INVESTMENT OUTSIDE THE BOOKS. SO, THE AO MADE THE A DDITIONS, WHICH WAS PARTLY DELETED BY THE FIRST APPELLATE AUTHORITY . THE TRIBUNAL HAS RESTORED THE MATTER TO THE FILE OF THE AO FOR RECOM PUTATION. BEING AGGRIEVED, THE DEPARTMENT HAS FILED THE PRESENT APP EALS. 6. WITH THIS BACKGROUND, HEARD SRI R.K. UPADHAYAY, LEARNED STANDING COUNSEL FOR THE DEPARTMENT, WHO HAD JUSTIF IED THE ORDER PASSED BY THE AO. HE SUBMITS THAT THE TRIBUNAL HAS RESTORED THE MATTER BACK TO THE AO WITH VARIOUS DIRECTIONS. FOR THE PURPOSE, HE READ OUT PARA-65 & 66 OF THE TRIBUNAL'S ORDER. STAY APPLICATION NO.02/LKW/2019 (IN I.T.A. NO.400/LKW/2018 ASSESSMENT YEAR:2015-16 12 7. ACCORDING TO THE LEARNED COUNSEL, TWO SETS OF TH E ACCOUNT/BOOKS WERE FOUND DURING THE COURSE OF SEARC H. IN ADDITION, A COMPUTER FLOPPY WAS ALSO FOUND. THE TWO SETS OF THE ENTRIES DEFINED THE TOTAL LIMB OF UNDISCLOSED INCOME AS ASSESSABLE IN BLOCK ASSESSMENT. 8. LEARNED COUNSEL SUBMITS THAT ON THE BASIS OF AN AFFIDAVIT OF SRI VINOD SARAF, THE PEAK OF THE DEBITS AND CREDITS ENT RIES WERE PREPARED BY THE AO FOR THE PURPOSE OF COMPUTATION OF UNDISCL OSED INCOME. THUS, THERE WAS NO SCOPE TO GIVE ANY DIRECTION FOR THE RECOMPUTATION OF THE PEAK OF DEBITS AND CREDITS ENTRIES. 9. HE HAS DRAWN THE ATTENTION TO PARAS-74 & 75 OF T HE IMPUGNED ORDER, WHERE THE DIRECTIONS WERE ISSUED TO THE AO. ON REPRODUCTION, THE OBSERVATIONS AND DIRECTIONS READ AS UNDER:- 74. WE ARE ALSO AWARE OF THE FACT THAT THOUGH THE ASSESSEE HAS FILED EXPLANATION BEFORE THE AO TO CONSIDER FUL L ACCOUNTS OF THE LEDGER FOR THE PURPOSE OF WORKING OUT OF THE PE AK, BUT THE AO AND THE CIT(A) DID NOT CONSIDER THE SAME AND HAV E NOT GIVEN ANY FINDING. WHEN LATER ON THE ASSESSEE PREPA RED SUMMARY OF THE PEAK ON THE BASIS OF THE PRINCIPLE M ENTIONED ABOVE, THE AO AND THE CIT(A) WHILE DISPOSING OF THE MATTER UNDER SECTION 154 OF THE INCOME-TAX ACT, 1961 DID N OT CONSIDER THE SAME. SIMILARLY, THE CIT(CENTRAL), KAN PUR DID NOT CONSIDER THIS MATTER WHILE TAKING ACTION UNDER SECT ION 263 OF THE ACT. THEREFORE, CONSIDERING THE ABOVE FACTS AND IN ORDER TO GIVE OPPORTUNITY TO THE AO TO CONSIDER THIS ASPECT OF THE MATTER, IT WOULD BE APPROPRIATE AND REASONABLE TO S ET ASIDE THE FINDINGS OF THE AO AND THE CIT(A) ON THE ISSUE AND RESTORE THE MATTER TO THE AO. IN VIEW OF OUR ABOVE FINDINGS, WE RESTORE THE ISSUE RELATING TO THE COMPUTATION PART ONLY OF THE UNDISCLOSED INCOME TO THE FILE OF THE AO WITH THE FOLLOWING DIR ECTIONS: (I) EACH CREDIT/DEBIT ENTRY APPEARING IN THE COMPUTER PRINT OUTS FOR FINANCIAL YEAR 1994-95 AND 1995-96 AND COMPUTER PRINT OUTS FOR FINANCIAL YEAR 1996-97 (AS SEGREGATED BY THE AO HIMSELF AT THE ORIGINAL STAGE OF COMPUTATION OF UNDISCLOSED INCOME) SHALL B E ARRANGED CHRONOLOGICALLY AND DATAWISE. (II) FROM THE AFORESAID FIGURE, THE DAY TO DAY CASH BOOK SHOULD BE PREPARED (AS IS SHOWN BY THE ASSESSEE) SO AS TO FIND OUT THE NEGATIVE CASH BALANCE AS ON DIFFERENT DATES. (III) THEREAFTER IN ORDER TO WORK OUT THE COMPUTATION OF THE DISCLOSED INCOME, THE RECEIPTS AS WELL AS THE STAY APPLICATION NO.02/LKW/2019 (IN I.T.A. NO.400/LKW/2018 ASSESSMENT YEAR:2015-16 13 PAYMENTS AS WOULD BE APPEARING IN THE CASH SHALL BE ARRANGED DATE-WISE CHRONOLOGICALLY. (IV) WHILE MAKING SUCH ARRANGEMENTS, THE AO SO FAR AS FINANCIAL YEAR 1996-97 IS CONCERNED, SHALL EXCLUDE THE AMOUNTS, WHICH HAD ALREADY BEEN SEGREGATED BY HIM IN THE COPIES OF COMPUTER PRINT OUTS AS HAD BEE N AVAILABLE TO THE ASSESSEE ON THE GROUNDS THAT SEGREGATED ITEMS WERE VERIFIABLE FROM MANUAL ACCOUNT. (V) THE UNDISCLOSED INCOME SO WORKED OUT IN THE AFORESAID MANNER SHALL BE ALLOCATED BETWEEN THE TWO FIRMS IN THE SAME RATIO AS HAD BEEN DONE EARLIER AT THE TIME OF THE BLOCK ASSESSMENT VIDE ORDER DATED 24.2.1999. 10. LEARNED COUNSEL SUBMITS THAT THE SAID DIRECTIONS AR E NOT REQUIRED. LASTLY, HE MADE A REQUEST THAT THE IMPUGN ED ORDER MAY KINDLY BE SET ASIDE. 11. ON THE OTHER HAND, LEARNED COUNSEL FOR THE ASSESSEE HAD JUSTIFIED THE IMPUGNED ORDER PASSED BY THE TRIBUNAL . HE SUBMITS THAT IN THE INSTANT CASE, THE PEAK WAS WORK ED OUT BY THE AO ON THE BASIS OF PICK AND CHOOSE. SO, THE TRI BUNAL HAS RIGHTLY DIRECTED TO WORK OUT THE PEAK ON THE BASIS OF THE ENTRIES. THE CORRECT ENTRIES WERE BROUGHT TO THE NO TICE BY THE AN AFFIDAVIT FILED BY THE PARTNER, NAMELY, SRI VINO D SARAF. SO, THE TRIBUNAL HAS DIRECTED FOR RE-COMPUTATION. 12. IN SUPPORT OF HIS ARGUMENT, LEARNED COUNSEL FOR THE ASSESSEE RELIED ON THE RATIO LAID DOWN IN THE FOLLOWING CASE S :- (I) COMMISSIONER OF INCOME-TAX VS. MILTON LAMINATES LTD.; (2013) 37 TAXMANN 249; (II) GUJARAT GAS CO. LTD. VS. JT. CIT; (2000) 245 ITR 84 ; AND (III) CIT VS. BEKELITLE HYLAM LTD., (1999) 237 ITR 392. 13. AFTER HEARING BOTH THE PARTIES AND ON PERUSAL OF TH E RECORD, IT APPEARS THAT THE BASIC DISPUTE IS REGARDING THE RE- COMPUTATION OF THE PEAK PERTAINING TO THE CREDITS/DEBITS FOR TH E PURPOSE OF UNDISCLOSED INCOME. THE TRIBUNAL IN ITS IMPUGNED OR DER HAS OBSERVED THAT :- ... WE FAIL TO UNDERSTAND AS TO HOW THE AO HAS WO RKED OUT THE PEAK ON THE BASIS OF PICK AND CHOOSE. IT IS SETTLED LAW THAT IN THE BLOCK ASSESSMENT, THE COMPUTATION OF UNDISCLOSED INCOME COULD BE MADE ONL Y ON THE BASIS OF SEIZED MATERIAL AND MATTERS SEIZED DURING SEARCH. THE AO CANNOT IGNORE SOME MATERIAL. STAY APPLICATION NO.02/LKW/2019 (IN I.T.A. NO.400/LKW/2018 ASSESSMENT YEAR:2015-16 14 14. REGARDING THE PEAK THEORY, IT MAY BE MENTIONED THAT THE PEAK THEORY WAS DEFINED IN THE SAMPATH IYENGAR'S LAW OF INCOMETAX, VOL.-3, 9TH EDITION, PAGE 3547. ACCORDING LY, PEAK CREDIT THEORY ONE OF THE COMMONEST DEFECTS OF AN ASSESSEE, WHERE A SINGLE CREDIT OR NUMBER OF CREDITS APPEAR I N THE BOOKS IN THE ACCOUNT OF ANY PARTICULAR PERSON SIDE BY SID E WITH A NUMBER OF DEBITS IS THAT THEY SHOULD ALL BE ARRANGE D IN SERIAL ORDER, THAT A CREDIT FOLLOWING A DEBIT ENTRY SHOULD BE TREATED AS REFERABLE TO THE LATTER TO THE EXTENT POSSIBLE AND THAT, NOT THE AGGREGATE BUT ONLY THE PEAK OF THE CREDIT SHOULD BE TREATED AS OWN EXPLAINED. TO GIVE A SIMPLE EXAMPLE, SUPPOSE THERE ARE CREDITS IN THE ASSESSEE'S BOOK IN THE ACCOUNT. A OR RS.5,000 EACH ON 1ST OCTOBER, 1990 AND AGAIN ON 5TH NOVEMBER , 1990 BUT THERE IS A DEBIT BY WAY OF REPAYMENT SHOWN ON 2 7TH OCTOBER, 1990, THE EXPLANATION WILL BE THAT THE CRE DIT APPEARING ON 5TH NOVEMBER, 1981 HAS OR COULD HAVE COME OUT OF THE WITHDRAWAL/REPAYMENT ON 27TH OCTOBER, 1981. THIS PL EA IS GENERALLY ACCEPTED AS IT IS LOGICAL AND ACCEPTABLE (WHETHER THE CREDITOR IS A GENUINE PARTY OR NOT), PROVIDED THERE IS NOTHING IN THE MATERIAL ON RECORD TO SHOW THAT A PARTICULAR WITHDRAWAL/REPAYMENT COULD NOT HAVE BEEN AVAILABLE ON THE DATE OF THE SUBSEQUENT CREDIT. 15. A REFINEMENT OR EXTENSION OF THE PLEA OCCURS WHERE THE CREDITS APPEAR NOT IN THE SAME ACCOUNT BUT IN THE ACCOUNTS OF DIFFERENT PERSONS. EVEN THEN, IF THE GENUINENESS OF ALL THE P ERSON IS DISBELIEVED AND ALL THE CREDITS APPEARING IN THE DI FFERENT ACCOUNT ARE HELD TO BE THE ASSESSEE'S OWN MONEYS, T HE ASSESSEE WILL BE ENTITLED TO SET OFF AND A DETERMIN ATION OF THE PEAK CREDIT AFTER ARRANGING ALL THE CREDITS IN THE CHRONOLOGICAL ORDER. 16. SUCH PROPOSITION WAS ALSO CONSIDERED BY THIS HON'BL E COURT IN THE MATTER OF CIT VS. NEEMAR RAM BADLU RAM, 122 ITR 68 (ALL) IN WHICH THE RELEVANT PARAGRAPHS ARE REPRODUCED AS UNDER:- THE TRIBUNAL ALSO DID NOT AGREE WITH THE DEPARTMEN TAL AUTHORITIES THAT MERELY BECAUSE THE ASSETS IN THE BALANCE SHEET CHANGED FROM TIME TO TIME, THE DIFFER ENCE WOULD NOT BE AVAILABLE FOR EXPLAINING A SIMILAR DIF FERENCE IN SUBSEQUENT YEARS. 17. IN THE LIGHT OF ABOVE DISCUSSION, WE FIND NOTHIN G WRONG IN THE DIRECTIONS GIVEN BY THE TRIBUNAL BEFORE RESTORING T HE MATTER BACK FOR RE-COMPUTATION. 18. IT ALSO APPEARS FROM THE IMPUGNED ORDER PASSED B Y THE TRIBUNAL THAT THE DIRECTION WAS GIVEN TO AO TO PASS THE FRESH ORDER STAY APPLICATION NO.02/LKW/2019 (IN I.T.A. NO.400/LKW/2018 ASSESSMENT YEAR:2015-16 15 WITHIN A PERIOD OF FOUR MONTHS. BY NOW, CERTAINLY, THE AO MIGHT HAVE PASSED THE ASSESSMENT ORDER. DURING THE COURSE OF A RGUMENTS, NONE OF THE LEARNED COUNSEL WAS ABLE TO TELL THE STATUS OF FRESH ASSESSMENT ORDER. WHEN THE MATTER HAS BEEN RESTORED TO THE AO AND CONSEQUENTIAL ORDER MIGHT HAVE BEEN PASSED, THEN TH E PRESENT APPEALS HAVE LOST ITS EFFICACY. ON MERIT ALSO, WE F IND NOTHING WRONG IN THE IMPUGNED ORDER PASSED BY THE TRIBUNAL, WHERE TH E MATTER WAS RESTORED TO THE AO WITH CERTAIN DIRECTION, AS STATE D EARLIER. HENCE, WE DECLINE TO INTERFERE WITH THE IMPUGNED ORDER PASSED BY THE TRIBUNAL. THE SAME IS HEREBY SUSTAINED ALONG WITH THE REASONS MENTIONED THEREIN. 19. WHEN THE MATTER IS RESTORED BACK TO THE AO FOR FRESH ADJUDICATION, THEN THE ANSWERING TO THE SUBSTANTIAL QUESTIONS OF LAW, WHICH ARE BASED ON FACTS, NEED NOT REQUIRED. IN THE RESULT, ALL THE APPEALS FILED BY THE DEPARTMENT ARE HEREBY DISMISSE D. 5. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE AND JUDICIAL PRECEDENTS, WE SET ASIDE THE ORDER OF LEARNED CIT(A ) TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO CALCULATE T HE PEAK CREDIT AND IF PEAK CREDIT IS FOUND LESS THAN THE INCOME DECLARED BY TH E ASSESSEE CONSEQUENT TO SEARCH THEN THE INCOME RETURNED SHOULD BE ACCEPTED AND IF THE PEAK CREDIT IS MORE THAN THE RETURNED INCOME THEN PEAK CREDIT S HOULD BE ACCEPTED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. 7. SINCE WE HAVE ALLOWED THE APPEAL OF THE ASSESSEE FOR STATISTICAL PURPOSES., THE STAY APPLICATION OF THE ASSESSEE HAS BECOME INFRUCTUOUS AND IS DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 28/02/2019) SD/. SD/. ( A. D. JAIN ) ( T. S. KAPOOR ) VICE PRESIDENT ACCOUNTANT MEMBER DATED:28/02/2019 *SINGH STAY APPLICATION NO.02/LKW/2019 (IN I.T.A. NO.400/LKW/2018 ASSESSMENT YEAR:2015-16 16 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSISTANT REGISTRAR