Assistant Commissioner Of Income Tax Central Circle-1, Raipur (C.g v. Sun And Sun Inframetric Pvt. Ltd

Page 1 AFR HIGH COURT OF CHHATTISGARH, BILASPUR (Reserved for judgment on 26.07.2023) (Delivered on 03.08.2023) TAXC No. 5 of 2022 Assistant Commissioner of Income Tax Central Circle-1, Raipur (C.G.) ---- Petitioner Versus Sun and Sun Inframetric Pvt. Ltd. 11/146, Chikni Mandir, Malviya, Road, Raipur District Raipur (C.G.) --- Respondent TAXC No. 7 of 2022 Assistant Commissioner of Income Tax Central Circle -1, Raipur Chhattisgarh. --- Petitioner Versus Sun and Sun Inframetric Pvt. Ltd. 11/146, Chikni Mandir, Malviya, Road, Raipur District Raipur Chhattisgarh. --- Respondent Hon'ble Shri Justice Goutam Bhaduri, Judge &Hon'ble Shri Justice Sanjay S. Agrawal, Judge Per Goutam Bhaduri, J 1)These are two appeals filed by the appellant/Revenue under section 260-A ofthe Income Tax Act, 1961 against the orders passed by the Income TaxAppellate Tribunal, Raipur. Since the facts and substantial questions of lawinvolved in both the cases are similar, they are heard analogously and decidedby the common order.the Income Tax Act, 1961 against the orders passed by the Income TaxAppellate Tribunal, Raipur. Since the facts and substantial questions of lawinvolved in both the cases are similar, they are heard analogously and decidedby the common order. The facts of TAX Case No.5 of 2022 are that the return of income waselectronically filed by the assessee company for the year under consideration16.10.2016 declaring the total income of Rs.7,93,940/- for the Assessment Year2016-2017. The case was selected for scrutiny through CASS and accordinglythe assessment under section 143(3) of the Income Tax Act, 1961 wascompleted on 28.12.2018. The Revenue Department initiated the revisionproceeding against the order passed by the Assessing Officer on the ground thatit is erroneous and prejudicial to the interest of Revenue. It was alleged thatcertain properties were sold by the assessee by showing lesser value than thevalue, which was assessed for the purpose of payment of stamp duty and itwas contended that short levy of tax was made of Rs.3,66,049/-. The revenuecontended that the assessee has paid Rs.9 lakhs on account of commission orbrokerage which is deductible under TDS was not deducted. Therefore, wrongassessment of income was made and the disallowance of Rs.2,70,000/- i.e., 30%of Rs.9,00,000/- should have been ordered as per section 40(a)(ia) of the I.T.Act. It is stated that the enquiry to ascertain the facts about the issue having notbeen done by the Assessing Officer and since no addition was made during thecourse of assessment proceeding, the order of the assessing officer wasprejudicial to the interest of Revenue which has resulted in under-assessment.It is the further case of revenue that the Principal Commissioner of Income Taxexercising the revisional power under Section 263 of the I.T. Act set aside theorder 28.12.2018 and remanded the matter to the Assessing Officer for freshadjudication of the following issues by affording adequate opportunity ofhearing to the assessee :- (1)Identity, genuineness and creditworthinessof M/s,. Gangotri Tracon P. Ltd., in respect of sum ofRs.18,12,00,000/- in the light of provisions of Section 68of the IT Act, 1961 ; (2)To verify the genuineness of both stamppapers with the competent authority who issued thosestamp papers ; (3)To invoke the doctrine of substance overform in respect of transaction with M/s. Gangotri Tracon P. Ltd., after due verification ; (4)To verify the unsecured loan, repayment ofloan and interest payment of sum of Rs.7,63,19,047/-,Rs.5,59,31,494/- & Rs.19,71,250/- respectively ; (5)To verify the applicability of Section 43CAin respect of sale deed executed below stamp duty value;and (6)To verify the applicability of Section40A(3) in respect of payment for purchase of land ; (1)Identity, genuineness and creditworthinessof M/s,. Gangotri Tracon P. Ltd., in respect of sum ofRs.18,12,00,000/- in the light of provisions of Section 68of the IT Act, 1961 ; (2)To verify the genuineness of both stamppapers with the competent authority who issued thosestamp papers ; (3)To invoke the doctrine of substance overform in respect of transaction with M/s. Gangotri Tracon P. Ltd., after due verification ; (4)To verify the unsecured loan, repayment ofloan and interest payment of sum of Rs.7,63,19,047/-,Rs.5,59,31,494/- & Rs.19,71,250/- respectively ; (5)To verify the applicability of Section 43CAin respect of sale deed executed below stamp duty value;and (6)To verify the applicability of Section40A(3) in respect of payment for purchase of land ; 3)The facts of Tax Case No. 7 of 2022 are that the return of income waselectronically filed by the assessee company for the year under consideration on29.09.2015 declaring total income of Rs.49,48,309/- for the assessment year2015-2016. The case was selected for scrutiny through CASS and accordingly,assessment u/s 143(3) of the IT Act was completed on 21.08.2017. TheRevenue having considered that the order passed by the Assessing Officer wasprejudicial to the interest of the Revenue initiated the revision proceeding .The Principal Commissioner Income Tax vide its revisional order dated22.03.2021 passed u/s 263 of the Act set aside the order passed by theAssessing Officer and remanded the case to the Assessing Officer for freshadjudication of the following issues by conducting necessary enquiries andaffording adequate opportunity of hearing to the assessee : (1)Identity, genuineness and creditworthiness of M/s.Gangotri Tracon Ltd in respect of receipt of sum ofRs.16,00,00,000/- in the light of provisions of section 68 of theI.T. Act, 1961; (2)To verify the genuineness of both stamp papers withthe competent authority who issued those stamp papers; (3)To invoke the doctrine of substance over form inrespect of transaction with M/s Gangotri Tracon P. Ltd afterdue verification. (4)To verify the repayment and interest payment ofsum of Rs.6,11,26,848/- & Rs.47,36,052/- respectively ; (5)To verify applicability of Section 56(2) (vii-b) inrespect of shares issued ; (6)To verify the applicability of 43CA in respect ofsale deed executed below stamp duty value; (7)To verify the applicability of Section 40A(3) in respect of payment for purchase of land ; 4) Being aggrieved by the Revisional Order passed by the PCIT under Section 263of the Act in both the revisions, the assessee preferred appeals before theIncome Tax Appellate Tribunal. The Tribunal vide its Orders dated 25.10.2021and 22.10.2021 (challenged in Appeal Nos. 5/2022 & 7/2022 respectively) setaside the order of the PCIT on the ground that the PCIT travelled beyond itsstatutory mandate and quashed the order passed u/s 263 of the IT Act, 1961.Being aggrieved by such orders, Revenue filed these appeals before this Court. 5)This Court by order dated 12.01.2023 has admitted the appeal (TAXC No.5 of2022) on the following substantial questions of law :2022) on the following substantial questions of law : (1)Whether the Income Tax Appellate Tribunal (ITAT)was justified in nullifying the direction of the Principal ChiefCommissioner, Income Tax (PCIT) in respect of transactionscovered under Section 43CA of the Income Tax Act, 1961 (forshort, the Act) by holding that the stamp duty value and actualconsideration amount does not exceed 10%, ignoring the factthat the amendment of section 43CA of the Act had increasedsafe harbour limit of 10% to be effective from 01.04.2021 ? 5)This Court by order dated 12.01.2023 has admitted the appeal (TAXC No.5 of2022) on the following substantial questions of law :2022) on the following substantial questions of law : (1)Whether the Income Tax Appellate Tribunal (ITAT)was justified in nullifying the direction of the Principal ChiefCommissioner, Income Tax (PCIT) in respect of transactionscovered under Section 43CA of the Income Tax Act, 1961 (forshort, the Act) by holding that the stamp duty value and actualconsideration amount does not exceed 10%, ignoring the factthat the amendment of section 43CA of the Act had increasedsafe harbour limit of 10% to be effective from 01.04.2021 ? (2)Whether the ITAT was justified in holding that theinaction on the part of Assessing Officer (AO) in notexamining the genuineness of the cash credit under Section 68of the Act and not making enquiry in terms of section 68 of theAct, does not render the assessment order passed under Section143(3) of the Act erroneous and prejudicial to the interest ofthe Revenue ? (3)Whether the ITAT was justified in the interpretationgiven to Section 263 of the Act contrary to law and in holdingthat an order passed by the AO ignoring the relevant materialsdoes not give jurisdiction to the PCIT for exercise of revisionaljurisdiction under Section 263 of the Act ? 6)Similarly, this Court on 12.01.2023 has admitted the appeal (TAXC No.7 of 2022) on the following substantial questions of law : (1)Whether the ITAT was justified in holdingthat the inaction on the part of the Assessing Officer (AO)in not examining the genuineness of the cash credit underSection 68 of the Act and not making enquiry in terms ofSection 68 and 69C of the Act, does not render theassessment order passed under Section 143(3) of the Acterroneous and prejudicial to the interest of the Revenue ? (2)Whether the ITAT was justified in theinterpretation given to Section 263 of the Act contrary to law and in holding that an order passed by the AO ignoringthe relevant materials does not give jurisdiction to the PCITfor exercise of revisional jurisdiction under Section 263 ofthe Act ?” 7)Mr. Amit Chaudhari, learned counsel appearing for the appellant Revenuewould submit that : a)the PCIT in exercise of supervisory jurisdiction u/s 263 of theIncome Tax Act has rightly held that the order passed by the AO waserroneous and therefore, by virtue of it, prejudice has been caused tothe interest of Revenue. b)he made a reference to the decision of this Court rendered inTax Case No.69 of 2016 – M/s, Natural Ores Pvt. Ltd. RaipurVersus Principal Commissioner of Income Tax-1, Raipur decidedon 25.10.2016 and would submit that when the order is erroneous onthe face of it, the view taken by the Assessing Officer isunsustainable. Therefore, the order of Assessing Officer is not onlyerroneous but would be deemed to be prejudicial to the interest ofrevenue. c)he would submit that in any case, the order of reassessment willnot prejudice to the interest of the assessee/respondent as he wouldget complete opportunity to defend them. He would further submitthat the assessee has received a sum of Rs. 5,59,31,494/- against thesale of land and unsecured loan and made a repayment to some extentwith interest but failed to furnish any document with respect to suchtransaction made with the above company and the above companywas found to be a shell company and the genuineness of theCompany having not been established, the sum received should havebeen disallowed. d)he would next submit that cash credit entry which was found inthe books of the assessee is needed to be explained by producing proper documents and having not been done so, the cash creditincome should be taken as the income of the assessee. d)he would next submit that cash credit entry which was found inthe books of the assessee is needed to be explained by producing proper documents and having not been done so, the cash creditincome should be taken as the income of the assessee. e)He further placed reliance in case law reported in 2023 LiveLaw(SC) 282 The commissioner of Income Tax 7 Versus M/s. PavilleProjects Pvt. Ltd to submit that when the Revenue is losing taxlawfully payable by a person it would certainly be prejudicial to theinterest of the revenue. Therefore, the substantial question of law beanswered in favour of the appellant and set aside the order of theTribunal. 8)Per contra, Mr. Sumit Nema, learned Senior Counsel assisted by Mr. AnandDadariya appearing on behalf of the respondent would submit that - Dadariya appearing on behalf of the respondent would submit that - (i) the legal proposition as has been narrated by the appellant is not indispute, however, the foundation of the entire genesis of the case is based onSection 68 of the I.T. Act. He would submit that when any sum is foundcredited in the books of assessee maintained for the previous year, the sum socredited may be charged to income tax as the income of the assessee of “thatprevious year” and not beyond. (ii) according to the admitted facts, the assessment made in this case was of2012-2013 and the assessment year in this case was of 2015-2016. Therefore,the cash credit entry which was of the previous year and the closing balancewhich was carried forward ought not to have been taken for the assessment yearand the subsequent year of 2015-2016, for which, the previous year ended on2014-2015 and the assessment year of 2016-2017 for which the previous yearwould end before it i.e., 2015-2016. (iii)He further submits that the assessment order would reflect that certaindeductions were disallowed as the document could not be produced but the verygenesis of section 68 of the IT Act which was made applicable to computeincome is wrong. He would further submit that section 69-C would also not be attracted as the entries were shown in the books of accounts and the details werementioned in such books of accounts which was duly supported by vouchersand no defect was found. He further submits that there no substantial questionof law is available for consideration and no interference is required by thiscourt. 9)We have heard learned counsel for the parties. The legal proposition as pointedout by the appellant/respondent is not much in dispute. The power of suo-moturevision under sub-section (1) of section 263 of the Act is in nature ofsupervisory jurisdiction and the same can be exercised only if the twocircumstances specified therein exist. To appreciate the rival contention of theparties, it would be apposite to refer to Section 263 of the Act, relevant portionof which reads as follows: “263.Revision of Orders prejudicial torevenue.-- (1) The Principal Chief Commissioner orChief Commissioner or Principal Commissioner orCommissioner may call for and examine the record ofany proceeding under this Act, and if he considers thatany order passed therein by the Assessing Officer iserroneous insofar as it is prejudicial to the interests of theRevenue, he may, after giving the assessee anopportunity of being heard and after making or causing tobe made such inquiry as he deems necessary, pass suchorder thereon as the circumstances of the case justify,including an order enhancing or modifying theassessment, or cancelling the assessment and directing afresh assessment.” 10)The Bombay High Court inCommissioner of Income Tax vs. Gabriel India Ltd {(1993) 203 ITR 108 Bom)}held as follows: 10)The Bombay High Court inCommissioner of Income Tax vs. Gabriel India Ltd {(1993) 203 ITR 108 Bom)}held as follows: “The power of suo-motu revision under sub-section (1)is in the nature of supervisory jurisdiction and the same canbe exercised only if the circumstances specified therein exist.Two circumstances must exist to enable the Commissioner to-exercise power of revision under this subsection, viz. (i) theorder is erroneous; (ii) by virtue of the order being erroneousprejudice has been caused to the interests of the Revenue.Ithas, therefore, to be considered firstly as to when an ordercan be said to be erroneous. We find that the expression“erroneous”, “erroneous assessment” and “erroneous judgment”have been defined in Black’s Law Dictionary. According to thedefinition, “erroneous” means “involving error; deviating from the law”. “Erroneous assessment” refers to an assessment thatdeviates from the law and is, therefore, invalid and is a defectthat is jurisdictional in its nature, and does not refer to thejudgment of the Assessing Officer in fixing the amount ofvaluation of the property. Similarly, “erroneous judgment”means “one rendered according to course and practice of court,but contrary to law, upon mistaken view of law, or uponerroneous application of legal principles.” (Emphsis supplied) 11)The Apex Court in Commissioner of Income Tax vs. Shree ManjunatheswarePacking Products and Camphor Works {(1998) 231 ITR 53 (SC)} held asfollows: “Section 263 of the Income Tax Act, 1961 enables theCommissioner to call for and examine the record of anyproceeding under the Act and pass such order thereon as thecircumstances of the case justify, including an orderenhancing or modifying the assessment or cancelling theassessment and directing a fresh assessment, if he considersthat any order passed by the Assessing Officer is erroneousinsofar as it is prejudicial to the interests of the Revenue.The section did not at first contain any Explanation. AnExplanation was added to section 263(1) by the Taxation Laws(Amendment) Act, 1984. By the Finance Act, 1988, the saidExplanation was substituted with effect from June 1, 1988. TheExplanation was again amended by the Finance Act, 1989. Bythe amendments made by the Finance Acts of 1988 and 1989 adefinition of the term “record” was provided. It has beenprovided that “record” shall include and shall be deemed alwaysto have included all records relating to any proceeding under theAct available at the time of examination by the Commissioner.” (Emphasis supplied) 12)Further, the Apex Court in Commissioner of Income Tax Vs. GreenworldCorporation {(2009) 314 ITR 81 (SC)} while dealing with Section 263 held asfollows: “Jurisdiction under Section 263: The scope of the provisions of Section 263 of the Act is nolonger res integra.The power to exercise suo motu power ofrevision in terms of section 263(1) is in the nature ofsupervisory jurisdiction and same can be exercised only if thecircumstances specified therein, viz., (1) the order iserroneous; (2) by virtue of the order being erroneousprejudice has been caused to the interest of the Revenue,”exist. (Emphasis supplied) (Emphasis supplied) 12)Further, the Apex Court in Commissioner of Income Tax Vs. GreenworldCorporation {(2009) 314 ITR 81 (SC)} while dealing with Section 263 held asfollows: “Jurisdiction under Section 263: The scope of the provisions of Section 263 of the Act is nolonger res integra.The power to exercise suo motu power ofrevision in terms of section 263(1) is in the nature ofsupervisory jurisdiction and same can be exercised only if thecircumstances specified therein, viz., (1) the order iserroneous; (2) by virtue of the order being erroneousprejudice has been caused to the interest of the Revenue,”exist. (Emphasis supplied) show that the power conferred to the Commissioner under Section 263 whereinthe order is sought to be reviewed is in the nature of supervisory jurisdiction,can be exercised if two circumstances exist viz., (i)the order is erroneous and(ii) by virtue of order being erroneous, prejudice has been caused to the interestof Revenue. If the assessing officer adopts one or two courses available underthe law and it results in loss of revenue, then the order cannot be said to beerroneous or prejudicial to the interest of revenue within the meaning of section263 of the Act. The case of the assessee was that financial statement, incometax return and ledger books of lender Company of the years 2014-2015, 2015-2016, & 2016-2017 were filed in pursuance of the enquiry made by the A.O.,on this record. According to the PCIT, Rs.18.12 crores was allegedly notreceived during the year but was received over different financial years mainlyfinancial year 2013-2014 and 2015-2016 and reference was made to the accountof the lender company. According to the assessee, the amount of Rs.18.12crores was received through banking channel in the F.Y. 2013-2014 and 2014-2015 which was pertaining to the Assessment Years 2014-2015 and 2015-2016.At this juncture, section 68 of the Income Tax Act which deals with cashcredits would be relevant here to read and quoted below: “68. Cash Credits . - Where any sum is found credited inthe books of an assessee maintained for any previous year, andthe assessee offers no explanation about the nature and sourcethereof or the explanation offered by him is not, in the opinion ofthe Assessing Officer, satisfactory, the sum so credited may becharged to income-tax as the income of the assessee of thatprevious year; Provided that where the assessee is a company, (not beinga company in which the public are substantially interested) andthe sum so credited consists of share application money, sharecapital, share premium or any such amount by whatever namecalled, any explanation offered by such assessee-company shallbe deemed to be not satisfactory, unless - (a)the person, being a resident in whose name suchcredit is recorded in the books of such company also offers anexplanation about the nature and source of such sum so credited;and (b)such explanation in the opinion of the AssessingOfficer aforesaid has been found to be satisfactory: Provided further that nothing contained in the first provisoshall apply if the person, in whose name the sum referred totherein is recorded, is a venture capital fund or a venture capitalcompany as referred to in clause (23FB) of Section 10.]” (a)the person, being a resident in whose name suchcredit is recorded in the books of such company also offers anexplanation about the nature and source of such sum so credited;and (b)such explanation in the opinion of the AssessingOfficer aforesaid has been found to be satisfactory: Provided further that nothing contained in the first provisoshall apply if the person, in whose name the sum referred totherein is recorded, is a venture capital fund or a venture capitalcompany as referred to in clause (23FB) of Section 10.]” 14)A reading of Section 68 of the Act which has been invoked by the PCIT wouldshow that the sum credited in the books of an assessee maintained for anyprevious year can be accounted for income-tax as the income of the assessee of“that previous year”. The finding has been recorded by the appellate Tribunalthat Rs.18.12 crores lent from GTPL was not received in the assessment year inquestion but was received in earlier assessment year and was duly assessed andmost importantly the finding has been recorded that the amount representsopening balance of carried forward credit of an earlier year. Therefore,according to Section 68 of the I.T. Act which operates in the limited field , anysum found credited in the books of assessee maintained for “that previous year”may be charged to income tax as income of the assessee of that previous year, if- (i) the assessee offers no explanation about the nature of source of such sum or(ii) the explanation offered by him in the opinion of the Assessing Officer isnot satisfactory. Therefore, the very genesis to invoke the provisions of Section68 of the Act apparently appears beyond the scope of PCIT as the amount wasreceived from the Company in the financial years 2013-2014 and 2014-2015which were pertaining to the assessment years 2014-2015 and 2015-2016respectively. According to the findings recorded by the learned Tribunal, thecredit entries appearing in the accounts of the assessee were taken into accountand section 68 could not have been invoked for the past credits which werecarried forward. show that the sum credited in the books of an assessee maintained for anyprevious year can be accounted for income-tax as the income of the assessee of“that previous year”. The finding has been recorded by the appellate Tribunalthat Rs.18.12 crores lent from GTPL was not received in the assessment year inquestion but was received in earlier assessment year and was duly assessed andmost importantly the finding has been recorded that the amount representsopening balance of carried forward credit of an earlier year. Therefore,according to Section 68 of the I.T. Act which operates in the limited field , anysum found credited in the books of assessee maintained for “that previous year”may be charged to income tax as income of the assessee of that previous year, if- (i) the assessee offers no explanation about the nature of source of such sum or(ii) the explanation offered by him in the opinion of the Assessing Officer isnot satisfactory. Therefore, the very genesis to invoke the provisions of Section68 of the Act apparently appears beyond the scope of PCIT as the amount wasreceived from the Company in the financial years 2013-2014 and 2014-2015which were pertaining to the assessment years 2014-2015 and 2015-2016respectively. According to the findings recorded by the learned Tribunal, thecredit entries appearing in the accounts of the assessee were taken into accountand section 68 could not have been invoked for the past credits which werecarried forward. 15)Further, apart from the aforesaid observations, the order passed by the PCITalso suffers from lack of due opportunity of hearing as the PCIT while makingsuch observation that the lender Company was classified as shell company andrelied on some statement recorded but before such finding was recorded whichwas prejudicial to the right of the assessee, no opportunity of hearing was givento the assessee. The entire observation made by PCIT is on a foreign subject,also suffers from lack of due opportunity of hearing as the PCIT while makingsuch observation that the lender Company was classified as shell company andrelied on some statement recorded but before such finding was recorded whichwas prejudicial to the right of the assessee, no opportunity of hearing was givento the assessee. The entire observation made by PCIT is on a foreign subject, which was not a matter of lis. Therefore the reliance of credit worthiness oflender Company which dominated the track for PCIT to arrive at a finding toinvoke Section 263 of I.T. Act was defective. Thereby the PCIT has notfollowed the rules of natural justice and admissibility of such document or thestatement becomes doubtful as the rules of natural justice were given a go-bye.The finding of fact that the amount of unsecured loan got by the assessee fromthe lender Company was not received in assessment year in question on thebasis of a finding which was never before the assessee to counter it. As such,section 68 cannot be invoked in the garb of Section 263 as fiscal statute is to begiven a strict interpretation. 16)Further observation made by the appellate Tribunal that consequential directiontowards genuineness of stamp paper of receipt of advance from GTPL etc.,being relatable to receipt of loans in other assessment year are apparently far-fetched and have no relevance for assessment of income of this year, appears tobe reasonable as no prejudice is caused to the interest of Revenue. A readingof the order would further would show that the Tribunal held that the repaymentof loan and payment of interest expenditure was recorded in the books oftransaction, which do not fall within the purview of section 69C of the Act. TheTribunal held that there is no dispute about the maintenance of book of accountsby the assessee and the same having been accepted in the past no defects werepointed out in the books maintained by the assessee. With respect toinvestment which is made in the property, there can be only two methods tofind out the correct position - (i) When proper books of account are maintained,and (ii) valuation report. The finding of the Tribunal shows that proper booksof account were maintained and no defects are pointed out about enormous gapof any valuation and consequently the books were not rejected. Therefore thefigures shown therein have to be followed. The valuation report can be takeninto consideration when the books of account are not reliable or are notsupported by proper vouchers. The assessment year in this case has notdoubted such entry and it has not been stated that the books of account maintained by the assessee are defective or not reliable. It may have marginaldifference with the valuation but that may be for various reasons but primarilyaforesaid two conditions are required to be satisfied, which having not beenpresent, the appellate Tribunal has rightly held the issue in favour of theassessee. maintained by the assessee are defective or not reliable. It may have marginaldifference with the valuation but that may be for various reasons but primarilyaforesaid two conditions are required to be satisfied, which having not beenpresent, the appellate Tribunal has rightly held the issue in favour of theassessee. 17)The Tribunal also recorded the fact that the so called incriminating informationthat the lender company being classified by the SEBI as shell Company coupledwith some adversarial statement of one Amit Kumar Kedia which has beenrelied by the PCIT post assessment, were not supplied to the assessee despiterequests made by him that those information and statement would enable him toplace its defence. Therefore, a serious flaw was committed by the PCIT. Theassessment order also records the fact that GTPL is a NBFC registered withRBI and is a Company of sound financial standing and a regular tax payer ofhuge amounts year after year, therefore, withholding certain documents whichis used against the assessee by the PCIT defeats the rules of natural justice ofdoctrine of audi alteram partem.that the lender company being classified by the SEBI as shell Company coupledwith some adversarial statement of one Amit Kumar Kedia which has beenrelied by the PCIT post assessment, were not supplied to the assessee despiterequests made by him that those information and statement would enable him toplace its defence. Therefore, a serious flaw was committed by the PCIT. Theassessment order also records the fact that GTPL is a NBFC registered withRBI and is a Company of sound financial standing and a regular tax payer ofhuge amounts year after year, therefore, withholding certain documents whichis used against the assessee by the PCIT defeats the rules of natural justice ofdoctrine of audi alteram partem. 18)A perusal of the order of Tribunal would further reflect that after assessment ofthe factual aspect of applicability of Section 43CA it records that the transactionwas duly reported in tax audit report and the appellate authority was unable tofind any error in action of the Assessing Officer to accept the transactionoutside the ambit of Section 43CA where the variations in actualconsideration qua assessable value for the purposes of stamp duty does notexceed 10%. The Tribunal has upheld the direction of PCIT to the extent thatthe difference upto 10% is only saved by the amendment made in the FinanceAct and the enquiry directed by PCIT in respect of transaction covered u/s43CA where the difference exceeds 10% appears to be justified and thedirection of the PCIT to the limited extent was upheld. Therefore consideringthe totality of the aforesaid averments, we are of the view that the order ofTribunal does not give rise to a substantial question of law warrantingthe factual aspect of applicability of Section 43CA it records that the transactionwas duly reported in tax audit report and the appellate authority was unable tofind any error in action of the Assessing Officer to accept the transactionoutside the ambit of Section 43CA where the variations in actualconsideration qua assessable value for the purposes of stamp duty does notexceed 10%. The Tribunal has upheld the direction of PCIT to the extent thatthe difference upto 10% is only saved by the amendment made in the FinanceAct and the enquiry directed by PCIT in respect of transaction covered u/s43CA where the difference exceeds 10% appears to be justified and thedirection of the PCIT to the limited extent was upheld. Therefore consideringthe totality of the aforesaid averments, we are of the view that the order ofTribunal does not give rise to a substantial question of law warranting interference of this Court in the order of Tribunal. 19)In view of the aforesaid discussion and after going into the merits of the case, we are of the considered view that the appeals do not involve any substantialquestion of law and accordingly, both the appeals are dismissed. Sd/- Sd/- interference of this Court in the order of Tribunal. 19)In view of the aforesaid discussion and after going into the merits of the case, we are of the considered view that the appeals do not involve any substantialquestion of law and accordingly, both the appeals are dismissed. Sd/- Sd/- (Goutam Bhaduri)Judge (Sanjay S. Agrawal) Judge Rao