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Income Tax Appellate Tribunal, “D” BENCH, MUMBAI
Before: SHRI SAKTIJIT DEY & SHRI RAMIT KOCHAR
सुनवाई क� तार�ख /Date of Hearing : 18.05.2016 घोषणा क� तार�ख /Date of Pronouncement : 29-07-2016 आदेश / O R D E R PER RAMIT KOCHAR, Accountant Member These two appeals filed by the assessee for the assessment years 1997- 98 and 1998-99 are directed against two separate orders of the learned Commissioner of Income Tax (Appeals)-3, Mumbai (Hereinafter called “the CIT(A)”) both dated 30th June, 2011 respectively , the appellate proceedings before the learned CIT(A) arising from the two separate assessment orders again both dated 31-12-2010 respectively passed by the learned Assessing Officer (hereinafter called “the AO”) u/s 143(3) read with Section 254 of the Income Tax Act,1961 (Hereinafter called “the Act”) .
ITA 5850 & 5851/Mum/2011 2
The following grounds of appeal are raised by the assessee in for the assessment year 1997-98 in the memo of appeal filed with the Income Tax Appellate Tribunal, Mumbai (hereinafter called “the Tribunal”) read as under:-
“(I) ON ADDITION OF RS.20,00,000/- ON A/C. OF UNEXPLAINED CASH CREDIT- (1) On the facts and circumstances, the learned CIT(A) erred in confirming the alleged addition of Rs. 20,00,000/- u/s. 68 without appreciating that- (i) the learned A.O. had totally ignored the relevant details, documents/ confirmations and the bonafide explanation, AND (ii) that the learned A.O. had clearly violated the principles of natural justice by not affording any opportunity to cross-examine Mr. Surendra Khandar [Mr. Khandar].
(2) The learned CIT(A) erred in confirming the erroneous finding that no confirmations were filed which was contrary to the facts available on record as Your Appellant has submitted all the confirmations along with the other details in the original assessment proceedings vide the letter dated: 23/2/05 and also in the set-aside assessment proceedings as pointed out vide letter dated 1-12-2010.
(3) The learned CIT(A) failed to appreciate that the learned A.O. was duty bound to provide an opportunity to cross-examine Mr. Khandar as his statement was recorded behind the back of Your Appellant that too during the search and seizer action at his place and not during any assessment proceedings of Your Appellant.
(4) Without prejudice to the above, learned CIT(A) failed to appreciate that the learned A.O. completely failed to follow the Hon'ble Tribunal's order and failed to verify the income tax record of the lenders despite of the fact that the PAN of the respective parties was already known from the confirmation/Hundi papers, etc., which was necessary, particularly when Mr. Khandar could not be produced by the learned A.O. for cross-examination.
(5) Without prejudice, on the facts and circumstances, the learned CIT(A) ought to have appreciated that Your Appellant had discharged ITA 5850 & 5851/Mum/2011 3 initial onus by giving particulars of transaction and confirmations of the parties consisting of PAN of the party.
6) On the facts and circumstances, Your Appellant prays that the impugned assessment order may be quashed.
(7) Alternatively, Your Appellant prays that a specific direction may be given to the learned A.O. for giving opportunity to cross-examine Mr. Khandar, particularly, if he has to solely rely upon his statement.
(II) ON ADDITION OF RS. 31,250/- ON A/C OF INTEREST- (1) The learned CIT(A) erred in confirming the alleged addition of Rs. 31,250/- on a/c of interest on the alleged loans merely because the additions on a/c. of alleged hawala loans were confirmed by him.
The learned CIT(A) ought to have appreciated that the learned A.O. made the alleged addition without any finding/discussion despite of specific submission that no interest was claimed on the alleged loans.
On the facts circumstances Your Appellant prays that the alleged additions may be deleted.”
The assessee has also filed abridged grounds of appeal before the Tribunal which reads as under:
On the facts and circumstances of the case and in law the Learned Commissioner of Income Tax(Appeals)-3, Mumbai, erred in i. Confirming the addition of Rs. 20,00,000/- as unexplained cash credit u/s. 68 , ignoring the specific directions of the Hon’ble ITAT in dated 11th Sept 2009. ii. Confirming the addition of Rs. 31,250/- as interest on the so-called bogus loans/unexplained cash credits.
The following grounds of appeal are raised by the assessee in 1998-99 in the memo of appeal filed with the Tribunal which reads as under:-
ITA 5850 & 5851/Mum/2011 4 “(I) (1) On the facts and circumstances, the learned CIT(A) erred in confirming the alleged addition of Rs. 30,00,000/- u/s. 68 without appreciating that- (i) the learned A.O. had totally ignored the relevant details, documents/ confirmations and the bonafide explanation, AND (ii) that the learned A.O. had clearly violated the principles of natural justice by not affording any opportunity to cross-examine Mr. Surendra Khandar [Mr. Khandar].
(2) The learned CIT(A) erred in confirming the erroneous finding that no confirmations were filed which was contrary to the facts available on record as Your Appellant has submitted all the confirmations along with the other details in the original assessment proceedings vide the letter dated: 23/2/05 and also in the set-aside assessment proceedings as pointed out vide letter dated 1-12-2010.
(3) The learned CIT(A) failed to appreciate that the learned A.O. was duty bound to provide an opportunity to cross-examine Mr. Khandar as his statement was recorded behind the back of Your Appellant that too during the search and seizer action at his place and not during any assessment proceedings of Your Appellant.
(4) Without prejudice to the above, learned CIT(A) failed to appreciate that the learned A.O. completely failed to follow the Hon'ble Tribunal's order and failed to verify the income tax record of the lenders despite of the fact that the PAN of the respective parties was already known from the confirmation/Hundi papers, etc., which was necessary, particularly when Mr. Khandar could not be produced by the learned A.O. for cross-examination.
(5) Without prejudice, on the facts and circumstances, the learned CIT(A) ought to have appreciated that Your Appellant had discharged initial onus by giving particulars of transaction and confirmations of the parties consisting of PAN of the party.
6) On the facts and circumstances, Your Appellant prays that the impugned assessment order may be quashed.
(7) Alternatively, Your Appellant prays that a specific direction may be given to the learned A.O. for giving opportunity to cross-examine Mr. Khandar, particularly, if he has to solely rely upon his statement.”
The assessee also filed abridged grounds of appeal before the Tribunal which reads as under:
ITA 5850 & 5851/Mum/2011 5 “ On the facts and circumstances of the case and in law the Learned Commissioner of Income Tax(Appeals)-3, Mumbai, erred in i. Confirming the addition of Rs. 30,00,000/- as unexplained cash credit u/s. 68 , ignoring the specific directions of the Hon’ble ITAT in dated 11th Sept 2009.”
First we shall take up the assessee’s appeal in for the assessment year 1997-98. The brief facts in this case are that the assessment order u/s 143(3) r.w.s. 147 r.w.s. 144A of the Act was passed by the AO on 31st March, 2005 determining the total income of the assessee at Rs. 20,31,250/- which was based on the intimation received from DDIT (Inv), Unit VIII(4), Mumbai vide letter dated 22nd September, 2003. While finalizing the afore-stated assessment, addition of Rs. 20,31,250/- was made u/s 68 of the Act on the basis of statement given by Shri Surendra Mansukhlal Khandar. The addition made u/s 68 of the Act was challenged by the assessee and the matter reached the Tribunal in the first round of litigation. The Tribunal set aside the matter and restored the same to the file of A.O. with specific direction that cross-examination of Shri Surendra Mansukhlal Khandar be allowed to the assessee. In the earlier set aside proceedings, the A.O. could not service the notice on Shri Surendra Mansukhlal Khandar or trace him for allowing cross examination to the assessee. The A.O. asked the assessee to file the details on merits and produce Mr. Surendra Mansukhlal Khandar . The AO was not satisfied with the explanations given by the assessee. In view of this, all the additions made u/s 68 of the Act was retained while passing the assessment order dated 20th December, 2007 passed by the in set aside proceedings.
The assessee carried the matter before the ld. CIT(A) in second round of litigation and the ld. CIT(A) dismissed the appeal of the assessee.
ITA 5850 & 5851/Mum/2011 6 Aggrieved by the appellate order of the ld. CIT(A), the assessee preferred appeal before the Tribunal in second round of litigation vide whereby the Tribunal observed that without confronting the statement of witness or allowing cross examination no adverse inference can be drawn against a person, against which statement of the third party is used. It was observed by the Tribunal that if statement of the Shri Surendra Mansukhlal Khandar is ignored then the onus lay upon the assessee to prove the transaction by adducing necessary confirmation and evidences. It was held by the Tribunal that no such effort has been made by the assessee to prove the transaction by adducing necessary confirmations and evidences .It was observed that no such efforts have been made by the assessee to obtain loan confirmations from the respective loan creditors. The Tribunal again set aside the matter to the file of the A.O. in respect of all the issues to examine afresh on merit and after affording reasonable opportunity to the assessee to file necessary details in respect of respective loans taken by the assessee vide order dated 11th September, 2009 in second round of litigation.
Accordingly, the A.O. issued several notices u/s 143(2) and 142(1) of the Act to the assessee in third round of litigation to furnish the details in respect of the loans referred to by the Tribunal with documentary evidences/ loan confirmations from respective loan creditors. The summons u/s 131 of the Act were issued by the AO to Shri Surendra Mansukhlal Khandhar and served at the last known address requiring him to appear before the AO with a view to allow the assessee to cross-examine Shri Surendra Mansukhlal Khandhar. The assessee appeared before the A.O. but Shri Surendra Mansukhlal Khandhar failed to appear before the A.O. . Therefore, another summons dated 7th December, 2010 were issued to Shri Surendra Mansukhlal Khandhar and served at the last known address requiring him to appear on 13th December, 2010 before the AO and assessee was also requested to attend for cross-examination of Shri Surendra Mansukhlal ITA 5850 & 5851/Mum/2011 7 Khandhar. Again Shri Surendra Mansukhlal Khandhar failed to comply to the summons issued by the AO. The assessee’s representative submitted a written submission before the AO and the relevant portion of the submissions are reproduced below:-
“The assessee firm had borrowed money on Hundi from various firms during the year. The various Hundi papers submitted to your goodself at the time of the last hearing contains the name and address of the assessee, amount borrowed and the PAN No. of the borrower firm. Thus the assessee firm has discharged the onus of the genuineness of the loan. It is for the department to verify the above and do the needful.
Further, the additions made is on account of the statement of Shri Surendra Khandhar who is a witness of the Department. The assessee firm reserves the right to cross-examine Shri Surendra Khandhar to know the truth behind the allegation by the Income Tax Department that the loans are accommodated loans".
The A.O. observed that the assessee failed to furnish any additional evidence other than those filed earlier and the assessee also did not file any loan confirmation in support of its claim that the loans were genuine. The assessee was asked by the AO to produce said Shri Surendra Mansukhlal Khandar but the assessee failed to produce Shri Surendra Mansukhlal Khandar before the AO for cross examination. The assessee had earlier submitted that the assessee does not know said Shri Surendra Mansukhlal Khandar. The assessee had borrowed money from various parties against which the Hundi documents were submittedwhich carried the details such as name and address of loan creditor, GIR/PAN etc. but no loan confirmations were submitted by the assessee nor said Shri Surendra Mansukhlal Khandar was produced by the assessee before the Revenue. The assessee had taken loans from the following parties:-
Sr.No. Name Date Amount ITA 5850 & 5851/Mum/2011 8 1 Kapilesh Corpn. 17.2.1997 10,00,000 2 Ray Engineering 8.3.1997 10,00,000 Total 20,00,000 Thus the A.O. observed that there is no change in the facts and circumstances of the case, hence, additions was reconfirmed by the A.O. in the assessment order dated 31-12-2010 framed u/s 143(3) r.w.s 254 of the Act in third round of litigation .
The assessee challenged the matter before the ld. CIT(A) who also dismissed the appeal of the assessee observing that the assessee could not produce Shri Surendra Mansukhlal Khandar before the A.O. in the third round of litigation. The A.O. also could not trace Shri Surendra Mansukhlal Khandar. The learned CIT(A) observed that Shri Surendra Mansukhlal Khandar has given a statement incriminating the assessee. The learned CIT(A) observed that confirmations which were filed in earlier proceedings by the assessee were also not found to be genuine and therefore addition of Rs. 20,31,250/- including interest of Rs. 31,250/- was upheld by the learned CIT(A) in third round of litigation vide appellate orders dated 30-06-2011 passed by the learned CIT(A).
7. Aggrieved by the order of the learned CIT(A) in third round of litigation vide appellate orders dated 30-06-2011 passed by the learned CIT(A), the assessee filed appeal before the Tribunal which are the current proceedings before the Tribunal.
Before the Tribunal, the ld. Counsel for the assessee submitted that this case has been set aside twice by the Tribunal earlier for allowing cross examination of Shri Surendra Mansukhlal Khandar but the said cross examination could not take place as the Revenue failed to produce said Shri Surendra Mansukhlal Khandar. It is submitted that the Revenue has mainly ITA 5850 & 5851/Mum/2011 9 relied upon the statement of Shri Surendra Mansukhlal Khandar incriminating the assessee. The Revenue has not produced Shri Surendra Mansukhlal Khandar before the assessee for allowing cross examination and in absence of cross examination of said Mr Surenra Mansukhlal Khandar the said statement cannot be used against the assessee . The assessee has duly submitted the Hundi documents wherein the name and address of the persons from whom the money was borrowed along with their PAN/GIR information were furnished to the Revenue. It was stated by the learned counsel for the assessee that the repayments of the loans have also been made through account payee cheques through banking channels. It is submitted that the Revenue has made no enquiries from the parties from whom the assessee borrowed the money despite the fact that the hundi documents were submitted before the A.O. which contained all details of loan creditors as set out above. No efforts have been made by the Revenue for verification and examination of the parties from whom the assessee borrowed the money. The Revenue merely relied upon the statement of Shri Surendra Mansukhlal Khandar who has not been offered for cross examination by the Revenue to the assessee and the statement of Shri Surendra Mansukhlal Khandar could not be relied upon unless cross examination is conducted by the assessee.
9. The ld. D.R. relied upon the orders of authorities below.
We have considered the rival contentions and also perused the material placed on record. We have observed that this case has a chequered history and it has already been set aside earlier by the Tribunal twice for allowing assessee to cross examine Shri Surendra Mansukhlal Khandar whose statement incriminating the assessee was used against the assessee by the Revenue , wherein the Revenue was not been able to produce Shri Surendra Mansukhlal Khandar before the assessee for cross examination in three ITA 5850 & 5851/Mum/2011 10 rounds of litigation. We have observed that the assessee has raised loans of Rs.20,00,000/- from two parties during the instant assessment year 1997-98 under appeal and one Shri Surendra Mansukhlal Khandhar has given statement u/s 131 of the Act against the assessee that he has floated various firms to give accommodation loan entries to various persons which also included the assessee and the said loan creditors found mentioned in the statement of said Shri Surendra Mansukhlal Khandhar as one of the parties who have given accommodation loans . The said statement of Sh.Surender Mansukhlal Khandhar was recorded by the Revenue at the back of the assessee. The said Shri Surendra Mansukhlal Khandhar has not been subjected to cross examination by the assessee as the Revenue failed to produce said Mr Surendra Khandhar before the assessee for cross examination and hence the statement of Shri Surendra Mansukhlal Khandhar cannot be used against the assessee until and unless the cross examination of the said Shri Surendra Khandhar by the assessee takes place. The assessee, on the other hand, produced the copies of promissory note/hundi as loan confirmations which carried the name and address of loan creditor as well his income tax particulars such as PAN/GIR/ward number. The Revenue also failed to make verification ,enquiries and examination of the loan creditors on merits with respect to the loan raised by the assessee but instead relied on statement of Shri Surendra Mansukhlal Khandar incriminating assessee. The assessee submitted earlier in the proceedings before the authorities below that the assessee does not know said Shri Surendra Mansukhlal Khandar and hence is not in position to produce said Shri Surendra Mansukhlal Khandar. However, the assessee has claimed that assessee has duly repaid the said loans by account payee cheques through banking channel to the loan creditors. No doubt the primary onus was on the assessee to satisfy the ingredients of Section 68 of the Act as the amount stood credited in its books but it was also incumbent on the revenue to have made enquiries , verification and examination of the loan creditors ITA 5850 & 5851/Mum/2011 11 wherein complete details of the loan creditors were furnished by the assessee instead of merely relying on statement of Shri Surendra Mansukhlal Khandar incriminating assessee, which incriminating statement of Shri Surendra Mansukhlal Khandar had not stood the test of cross examination by the assessee. In our considered view keeping in view the peculiar facts and circumstances of the case and its chequered history , this matter needs to be set aside and restored to the file of the A.O. and if the A.O. found on verification that the amounts of loan borrowed by the assessee have been repaid by the assessee to the said loan creditors by account payee cheques through banking channel, the additions will stand deleted. We order accordingly.
With respect to additions made on account of interest of Rs. 31,250/- on these loans, we find that the AO has made additions based on notional interest being paid/payable by the assessee on these loans, we did not find any basis/justification for the same as per the facts emanating from the records. This issue is also set-aside to the file of the AO to be decided based on merits after bringing on record cogent material/basis for the said interest to be brought to tax as income of the assessee. Needless to say proper and adequate opportunity of being heard shall be provided by the AO to the assessee in accordance with principles of natural justice in accordance with law and the assessee shall be allowed to produce evidences/explanations in its defense which shall be admitted and considered by the AO on merits. We order accordingly.
Similar situation arose in the appeal in in the case of Dilsa Distributors Combine v. ITO whereby Tribunal vide orders dated 20- 04-2016 (whereby one of us i.e. Accountant Member was author of the said order of the Tribunal) wherein Tribunal held as under :
ITA 5850 & 5851/Mum/2011 12 “9. We have considered the rival submission and perused the material available on record. We have observed that the assessee has raised loans of Rs.45,50,000/- from various parties during the instant assessment year 1998-99 under appeal and one Shri Surendra Khandhar has given statement u/s 131 of the Act against the assessee that he has floated various firms to give accommodation loan entries to various persons which also included the assessee . The said statement of Sh.Surender Khandhar was recorded by the Revenue at the back of the assessee. The said Shri Surendra Khandhar has not been subjected to cross examination by the assessee and hence the statement of Shri Surendra Khandhar cannot be used against the assessee until and unless the cross examination of the said Shri Surendra Khandhar by the assessee takes place. We find that the Tribunal in the first round of litigation, set aside the matter to the file of A.O. with a direction to re- verify the loan transactions as per provisions of the Act after affording opportunity to the assessee, the Tribunal also holding that since Sh Surender Khandhar could not be offered for cross examination by the assessee , his statement cannot be used against the assessee. The said Shri Surendra Khandhar did not appear before the Revenue also. The A.O. also failed to make verification and enquiries on merits with respect to the loan raised by the assessee. The assessee, on the other hand, produced the copies of promissory note/hundi as loan confirmations. In the immediately preceding assessment year 1997-98, the Tribunal in the second round of litigation deleted the addition with a direction to the A.O. to verify the contentions of the assessee regarding repayment of loan in for assessment year 1997-98 vide orders dated 6th September, 2013, the said directions of the Tribunal are reproduced below:-
ITA 5850 & 5851/Mum/2011 13 “We have considered the rival submissions and carefully perused the relevant material on record. In the earlier round of litigation this Tribunal has remanded the matter to the record of the Assessing Officer vide order dated 11-9-2009 in para 5 and 5.1 as under:-
“5. We have "heard the rival submissions and considered them carefully. As mentioned above, the assessments were completed originally which were set aside by the Tribunal with a direction to allow cross examination of one Shri Khandhar on whose statement basis, the additions were made in the hands of the assessee. Shir Khandhar could not be traced out in spite of best efforts made by the AO; therefore, cross examination could not be allowed. It is well settled law that without confronting the statement of witness or allowing cross examination, no adverse inference can be made against a person, against which statement of a third party is used. Since cross examination could not be allowed; therefore, we hold that the statement of Shri Khandhar cannot be used against the assessee.
5.1 However, on merit, we are of the considered view that the matter needs re-verification at the end of the AO as the case has not been examined properly on merit. If the statement of a third party ignored then in that case, onus lay upon the assessee to prove the transaction by adducing necessary confirmation and evidences. No such efforts were made by the assessee to obtain the confirmation from the respective parties. Neither the department has tried to verify from the Income Tax department, inspite of furnishing PAN etc., of the respective parties, as stated by the ld. Counsel of the assessee. Therefore, we are of the considered view that to meet the end of justice, the matter should go back to the file of the AO in respect to all these appeals to examine the issue afresh on merit and after affording reasonable opportunity to the assessee to file necessary details in respect of respective loans taken by the assessee. Accordingly, we set aside the orders of the lower authorities and restore the matter to the file of the AO to pass a fresh order as per our above observations.
It is clear from the order of this Tribunal that the addition made on the basis of the statement of Mr. Surendra Khandhar without giving an opportunity of cross-examination was held to be not proper and accordingly it was observed that the statement of ITA 5850 & 5851/Mum/2011 14 Mr. Surendra Khandhar cannot be used against the assessee: The AO was directed to decide the issue on merits after affording an opportunity to the assessee to file necessary details in respect of respective loans taken by the assessee. We note that in the assessment order passed in pursuant to the directions of this Tribunal, the AO has repeated the addition in para 10-12 as under:
"10. In view of the above, it can be seen that there is no change in the facts and circumstances of the case. Under the circumstances, there is no alternative than to pass the order with the materials available on record. The details and facts of the case are elaborately discussed in the original order passed on 31.3.2005 by the erstwhile Assessing Officer. Hence they are not repeated here again.
I do not find that the submission made by the authorised representative has any materials to serve his purpose. Considering the statement on oath provided by the lender of the loan; there is no iota of doubt that the assessee has introduced his undisclosed cash under the garb of accommodation loan. In the circumstances, the loan so received are unexplained cash credit u/s 68 of the I. T. Act 1961 and same are brought to tax. Accordingly, a sum of Rs. 55,25,000/- is assessed as undisclosed income of the assessee for the year. Penalty proceedings u/s 271(1)(c) of the I.T. Act, 1961 are initiated separately."
Subject to the above remarks, the the total income of the assessee is computed as under:-
Business income
Income as per order dtd. 31.3.2005 Rs.2,35,505 Add: Disallowance of loan as per order Rs.30,00,000 Dtd. 31.3.2005 Interest on loan Rs.25,25,000
Total income Rs. 57,60,505 Rounded off Rs.57,60,510 It is clear that the AO has not taken pain to examine the issue on merits on the basis of the details to be filed by the assessee as directed by the Tribunal. Now before us the assessee has claimed that the loans have been repaid therefore, the claim of the ITA 5850 & 5851/Mum/2011 15 assessee based on the record showing the repayment of loan is required to be verified. If the claim of the assessee that loans have already been repaid is found correct then the addition u/s 68 is not sustainable and liable to be deleted. Therefore in the interest of justice we set aside this issue for limited purpose of verification of the fact and the record filed by the assessee to show that the loans in question have been repaid by the assessee. The AO to decide the issue in terms of our observation.”
In the result, the appeal of the assessee is allowed for statistical purposes.”
Accordingly, the A.O. vide order dated 31-3-2015 in compliance to the directions of the Tribunal in second round of litigation, deleted the additions so made for assessment year 1997-98 after verifying that the loans have been duly repaid by the assessee vide orders dated 31-03- 2015 (copy placed in the file). The assessee has claimed that the loans raised during the instant year under appeal have also been repaid and claim of the assessee based on records showing the repayment of the loan is required to be verified. In the instant case, the issue and grounds are identical and in the interest of justice, respectfully following the order of the co-ordinate Bench of this Tribunal in vide orders dated 06-09-2013, the issue is set aside to the file of A.O. on the similar lines as was done by the Tribunal in the immediately preceding assessment year 1997-98 , for the limited purpose of verification by the AO of the fact and the record filed by the assessee to show that the loans in question raised during the instant assessment year of Rs.45,50,000/- have been repaid by the assessee. The AO to decide the issue in terms of our above observations .With respect to additions made on account of interest of Rs.4,00,000/- on these loans, we find that the AO has made additions based on notional interest being paid/payable by the assessee on these loans, we did not find any basis/justification for the same as per the facts emanating from the records. This issue is also set-aside to the file of the AO to be decided based on merits after bringing on record ITA 5850 & 5851/Mum/2011 16 cogent material/basis for the said interest to be brought to tax as income of the assessee. Needless to say proper and adequate opportunity of being heard shall be provided by the AO to the assessee in accordance with principles of natural justice in accordance with law and the assessee shall be allowed to produce evidences/explanations in its defense which shall be admitted and considered by the AO on merits. We order accordingly.
10. In the result, appeal of the assessee in for the assessment year 1998-99 is treated as allowed for statistical purpose.”
Our decision in the instant appeal in is in line with the decision of the Tribunal in the case of Dilsa Distributors Combine(supra) in ITA no. 7007/Mum/2011 wherein the facts were identical.
11. Our above decision in shall apply mutatis mutandis to the assessee’s appeal in wherein the facts are identical.
In the result, both the appeals filed by the assessee in ITA N0. 5850/Mum/2011 for the assessment year 1997-98 and 1998-99 are allowed for statistical purposes.