DCIT CEN CIR 18 &19, MUMBAI vs. NARESH B. VORA, MUMBAI

Shri Naresh B. Vora, DCIT Cen Cir 18 7 19 Room No. 401, 4th floor, 16/2, Paras, Gulmohar बिधम/ Cross Road No. 4, Aayakar Bhavan, M. K. JVPD Scheme, Vile Road, Mumbai-400020 Vs. Parle (W), Mumbai-400049 स्थायीलेखासं./जीआइआरसं./ PAN No. AABPV0742K (अपीलाथी/Appellant) (प्रत्यथी / Respondent) : अपीलाथीकीओरसे/ Appellant by : Shri T. A. Khan, DR प्रत्यथीकीओरसे/Respondentby : None सुनवाईकीतारीख/ : 27/02/2018 Date of Hearing घोषणाकीतारीख / 19/03/2018 : Date of Pronouncement आदेश / O R D E R

Per Sandeep Gosain, Judicial Member:

Shri Naresh B. Vora 1. "On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition of Rs.21,68,000, Rs.10,49,000/-, 96,70,350/- and 76,14,644/- made by the AO on account of undisclosed payments and receipts from the Naptha Quota Holder, without appreciating the facts of the case.

1(i) That in doing so the Ld.CIT(A) did not appreciate the fact that the assessee failed to rebut the presumption before the AO, that the said amounts comprised his income, and that there was no evidence on record to hold otherwise.

1(ii) That in doing so the Ld. CIT(A) ignored that fact that page no. 48 of the seized paper specifically mentioned the words 'sales' and 'closing stock' which clearly indicates involvement of the assessee in clandestine trading in naptha apart from commission earned from issuing bogus bills.".

3. The appellant, therefore, prays that on the grounds stated above, the order of the CIT(A)-39, Mumbai may be set aside and that of the Assessing Officer restored.

Shri Naresh B. Vora 2. At the very outset, it is noticed that none has appeared on behalf of assessee/respondent in spite of several calls and even no application for adjournment was moved. On the other hand, Ld. DR present in the court is ready with arguments. Therefore we have decided to proceed with the hearing of the case ex-parte with the assistance of the Ld. DR and the material placed on record.

The assessee filed appeal against the order of AO and that appeal was partly allowed by Ld. CIT(A) vide order dated 17.05.02.

Shri Naresh B. Vora Aggrieved by the order of Ld. CIT(A), both assessee as well as revenue filed their respective appeals before the Hon’ble Tribunal and the Tribunal vide common order dated 29.11.07 in set aside the assessment for fresh consideration by the AO.

Thereafter during the second round of assessment proceedings, the AO observed that assessee has accepted cash alongwith fabricated transport bills from the Naphtha dealers and deposited the cash in the bank accounts maintained by him and had issued demand draft/pay orders to the Naphtha dealers. On the basis of investigations carried out by the AO and the considering the documents, AO framed the order of assessment u/s 143(3) r.w.s 254 of the I.T. Act on 17.11.08 thereby making additions/disallowance under different head as details in para no. 4.2 of CIT(A)’s order.

Aggrieved by the order of AO, assessee preferred appeal before Ld. CIT(A) and Ld. CIT(A) after considering the case of both the parties partly allowed the appeal of the assessee.

Shri Naresh B. Vora Now before us, the revenue has preferred the present appeal by raising the above grounds. Ground No. 1 (i) & (ii) 4. These grounds raised by the revenue are inter-connected and inter-related and relates to challenging the order of Ld. CIT(A) in deleting the addition of Rs.21,68,000, Rs.10,49,000/-, 96,70,350/- and 76,14,644/- made by the AO on account of undisclosed payments and receipts from the Naptha Quota Holder, without appreciating the facts of the case. Ld. DR submitted before us that Ld.CIT(A) while deciding this ground had not appreciated the fact that the assessee failed to rebut the presumption before the AO, that the above amounts comprised his income, and that there was no evidence on record to hold. Ld. DR further submitted that while deciding these grounds, Ld. CIT(A) ignored the fact that page no. 48 of the seized paper specifically mentioned the words 'sales' and 'closing stock' which clearly indicates involvement of the assessee in clandestine trading in naptha apart from commission earned from issuing bogus bills.

Shri Naresh B. Vora 5. We have heard Ld. DR and we have also perused the material placed on record as well as the orders passed by revenue authorities. We find that AO has specifically recorded a finding in the order of assessment that the assessee had not led any evidence to prove that the amount of cash was received from M/s Seven Petroleum Company. It was rather mentioned by the AO that the source of payment made by the assessee to M/s Seven Petroleum Company remained unexplained and hence addition were made. In appeal, the Ld. CIT(A) recorded a finding that the amount in question was received by the assessee from M/s Seven Petroleum Company, a Naptha quota holder. The Ld. CIT(A) based his finding on a chart submitted by the assessee. On careful perusal of the documents placed on record as well as orders passed by revenue authorities, we notice that the assessee had not led any independent evidence to corroborate or prove the genuineness of the figures contained in the said chart. Therefore, in such circumstances, there is no presumption of correctness, genuineness or authenticity of the figures contained in the chart. Whereas at page no. 48 of the seized papers, it is Shri Naresh B. Vora specifically mentioned the word 'sales' and 'closing stock' which indicates involvement of the assessee in clandestine trading in naptha. Therefore, we are of the considered view that the findings recorded by Ld. CIT(A) are not based on any independent documents and thus the same are set aside and the additions made by the AO are restored back to the file of AO with direction to pass afresh order. Resultantly, these grounds are allowed. Ground No. 2 & 3 6. These grounds are general in nature, thus requires no specific adjudication.

Order pronounced in the open court on 19th March 2018 Sd/- Sd/- (G. S. Pannu) (Sandeep Gosain) लेखासदस्य / Accountant Memberन्याययकसदस्य / Judicial Member मुंबई Mumbai;यदनांकDated : 19.03.2018 Sr.PS. Dhananjay Shri Naresh B. Vora आदेशकीप्रनिनिनिअग्रेनर्ि/Copy of the Order forwarded to : 1. अपीलाथी/ The Appellant 2. प्रत्यथी/ The Respondent आयकरआयुक्त(अपील) / The CIT(A) 3. 4. आयकरआयुक्त/ CIT- concerned 5. यवभागीयप्रयतयनयध, आयकरअपीलीयअयधकरण, मुंबई/ DR, ITAT, Mumbai 6. गार्डफाईल / Guard File आदेशधिुसधर/ BY ORDER,