Modern Radio House, New Delhi v. ITO, New Delhi

ITA 4643/DEL/2000 | 1997-1998
Pronouncement Date: 29-01-2010 | Result: Partly Allowed

Appeal Details

RSA Number 464320114 RSA 2000
Bench Delhi
Appeal Number ITA 4643/DEL/2000
Duration Of Justice 9 year(s) 1 month(s) 25 day(s)
Appellant Modern Radio House, New Delhi
Respondent ITO, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 29-01-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted E
Tribunal Order Date 29-01-2010
Date Of Final Hearing 25-10-2010
Next Hearing Date 25-10-2010
Assessment Year 1997-1998
Appeal Filed On 04-12-2000
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E: NEW DELHI BEFORE SHRI C.L. SETHI JUDICIAL MEMBER & SHRI B.P. JAIN ACCOUNTANT MEMBER ITA NO. 4643/DEL/2000 ASSESSMENT YEAR : 1997-98 MODERN RADIO HOUSE 24/32 OLD RAJENDER NAGAR NEW DELHI-110060. VS. INCOME TAX OFFICER WARD 11(6) NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R. SANTHAN AM ADV. RESPONDENT BY : SHRI R.K. RAINA SR. D.R. O R D E R PER: C.L. SETHI J.M. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINS T THE ORDER DATED 25.10.2000 PASSED BY THE LD. CIT(A) IN THE MATTER O F AN ASSESSMENT MADE U/S 143(3) OF THE INCOME TAX ACT 1961 (THE ACT) FOR THE ASSESSMENT 1997-98. 2. THIS APPEAL WAS EARLIER DECIDED AND DISPOSED OFF BY THIS TRIBUNAL VIDE ORDER DATED 28.04.2006 AGAINST WHICH THE ASSESSEE P REFERRED AN APPEAL BEFORE THE HONBLE HIGH COURT OF DELHI AT NEW DELHI. APPEAL F ILED BY THE ASSESSEE BEFORE THE HONBLE HIGH COURT WAS REGISTERED AS ITA NO. 17 22/06 WHICH HAS BEEN DISPOSED OFF BY THE HONBLE HIGH COURT VIDE ORDER D ATED 15.12.2008 WHERE THE HONBLE HIGH COURT HAS HELD AND OBSERVED AS UNDER:- ITA 1722/2006 IN VIEW OF THE ORDER PASSED BY THE INCOME TAX APPE LLATE TRIBUNAL ON 26.10.2007 IN RESPECT OF THE PARTNERS OF THE ASSESS EE FIRM IN ITA NOS. ITA NO. 4643/DEL/2000 2 OF 10 2541/DEL/2003 2530/DEL/03 2540/DEL/03 AND 2531/DE L/2003 THE IMPUGNED ORDER IS LIABLE TO BE SET ASIDE AND THE MA TTER LIABLE TO BE REMANDED TO THE INCOME TAX APPELLATE TRIBUNAL FOR A CONSIDERATION AFRESH. IT IS ORDERED ACCORDINGLY. THE APPEAL STANDS DISP OSED OF. 3. IN PURSUANCE TO THE AFORESAID ORDER OF THE HONB LE HIGH COURT THIS APPEAL HAS AGAIN COME UP BEFORE US FOR DISPOSAL. THE MEMO RANDUM OF APPEAL FILED BY THE ASSESSEE BEFORE THE HONBLE HIGH COURT HAS ALSO BEEN PLACED BEFORE US WHEREIN THE CERTAIN ISSUES WHICH WERE DECIDED AGAIN ST THE ASSESSEE WERE MADE A SUBJECT MATTER OF AN APPEAL BEFORE THE HONBLE HIGH COURT. WE THEREFORE PROCEED TO DECIDE THIS APPEAL AFRESH. 4. GROUNDS OF APPEAL RAISED BY THE ASSESSEE ORIGINA LLY WERE SUBSEQUENTLY REVISED AND ABRIDGED VIDE ASSESSEES LETTER DATED 0 5.09.2005 WHICH ARE NOW BEING TAKEN BY US FOR OUR CONSIDERATION. 5. GROUND NO. 1 IS RELATING TO ILLEGALITY ARBITRAR INESS PERVERSITY ETC. OF THE ORDER PASSED BY THE LD. CIT(A). THIS GROUND IS GEN ERAL IN NATURE AND NO SPECIFIC ARGUMENT IS PLACED BEFORE US. THEREFORE THIS GROU ND DOES NOT REQUIRE SPECIFIC ADJUDICATION BY US. 6. GROUND NO. 2 IS RELATED TO THE CONFIRMATION OF A DDITION OF RS. 2 57 000/- BY THE LD. CIT(A) OUT OF RS. 4 59 500/- MADE BY THE A.O. 7. THE FACTS RELATING TO THIS ISSUE ARE THAT FROM T HE BANK ACCOUNT NO. 17967 IN THE BANK OF BARODA KAROL BAGH DELHI IN THE NAME O F SMT. VANDANA BAGGA THE A.O. FOUND THAT SHE HAD DEPOSITED A CASH OF RS. 4 5 9 500/- ON VARIOUS DATES IN HER ITA NO. 4643/DEL/2000 3 OF 10 BANK ACCOUNT AND OUT OF THE SAID AMOUNT OF RS. 4 5 9 500/- THE ASSESSEE HAD GIVEN A LOAN OF RS. 2 57 000/- TO THE PRESENT ASSES SEE FIRM. THE A.O. MADE THE ADDITION OF RS. 4 59 500/- ON ACCOUNT OF UNEXPLAINE D CASH CREDIT IN THE NAME OF SMT. VANDANA BAGGA AGAINST WHICH THE LD. CIT(A) HAS CONFIRMED THE ADDITION ONLY TO THE EXTENT OF RS. 2 57 000/-. 8. AT THIS STAGE WE SHALL ALSO TAKE THE GROUND NO. 3 WHICH IS AGAINST THE ADDITION OF RS. 4 77 000/- CONFIRMED BY THE LD. CIT (A) AND AGAINST THE ADDITION OF RS. 8 82 620/- REMANDED BACK TO THE A.O. BY THE LD. CIT(A). 9. THE FACTS RELATING TO THIS CASE ARE THAT SUM OF RS. 13 59 620/- WAS FOUND DEPOSITED IN SB ACCOUNT OF SHRI HARESH THAKUR AND H IS MOTHER SMT. RADHA THAKUR WHO HAD ADVANCED LOAN TO THIS FIRM. THE A. O. MADE THE ADDITION OF RS. 13 59 620/- AS UNEXPLAINED CASH CREDIT IN THE HANDS OF ASSESSEE FIRM. 10. ON AN APPEAL THE LD. CIT(A) CONFIRMED THE ADDI TION OF RS. 4 77 000/- BEING THE AMOUNT OF LOAN GIVEN TO THE FIRM BY SHRI HARESH THAKUR IN HIS NAME FROM THE SAID BANK ACCOUNT. THE ADDITION OF BALANC E AMOUNT OF RS. 8 82 620/- WAS RESTORED BACK TO THE A.O. FOR FRESH CONSIDERATI ON BY OBSERVING THAT THE ADDITION CAN BE MADE ONLY FOR THE LOAN AMOUNT ADVAN CED TO THE FIRM BY SHRI HARESH THAKUR AND HIS MOTHER SMT. RADHA THAKUR AND NO ADDITION CAN BE MADE ON ACCOUNT OF THE TOTAL DEPOSITS IN THE BANK ACCOUN T OF SHRI HARESH THAKUR. THE LD. CIT(A) RESTORED THE MATTER ABOUT THE BALANCE AM OUNT OF RS. 8 82 620/- TO THE FILE OF THE A.O. FOR VERIFICATION OF THE ASSESSMENT RECORDS OF THE PARTNERS AND ITA NO. 4643/DEL/2000 4 OF 10 MAKE NECESSARY ENQUIRIES IN THOSE CASES AND THEN GI VEN SPECIFIC FINDINGS WHETHER THE MONEY IS EXPLAINABLE IN THE HANDS OF THE PARTNE RS OR IS DEPOSITED FROM THE INCOME OF THE ASSESSEE FIRM. IN THE LIGHT OF THE A BOVE FACTS IT IS THUS CLEAR THAT GROUND NO. 2 AND 3 ARE RELATED ABOUT THE ADDITION O N ACCOUNT OF ALLEGED UNEXPLAINED CREDIT IN THE NAME OF SMT. VANDANA BAGG A AND IN NAME OF SHRI HARESH THAKUR AND HIS MOTHER SMT. RADHA THAKUR. THE SE ISSUES HAVE BEEN RESTORED BACK TO THE TRIBUNAL BY THE HONBLE HIGH C OURT FOR FRESH CONSIDERATION IN THE LIGHT OF THE ORDER OF THE TRIBUNAL DATED 26. 10.2007 PASSED IN THE CASE OF THE PARTNERS OF THE ASSESSEE FIRM IN ITA NOS. 2541/D/03 2530/D/03 2540/D/03 AND 2531/D/03 PERTAINING TO THE ASSESSEES NAMELY SHRI HARESH THAKUR AND SMT. VANDANA BAGGA. 11. WE HAVE CAREFULLY GONE THROUGH THE AFORESAID OR DER OF THE TRIBUNAL DATED 26.10.2007 PASSED IN THE CASE OF SHRI HARESH THAKUR AND SMT. VANDANA BAGGA. THESE TWO PERSONS ARE THE PARTNERS IN THE FIRM M/S. MODERN RADIO HOUSE I.E. ASSESSEE FIRM. THE ADDITION OF RS. 4 59 500/- ON A CCOUNT OF THE CASH DEPOSITED IN THE BANK ACCOUNT OF SMT. VANDANA BAGGA WAS MADE BY THE A.O. IN THE HANDS OF SMT. VANDANA BAGGA. SIMILARLY THE ADDITION OF RS. 13 59 620/- WERE ADDED IN THE HANDS OF SHRI HARESH THAKUR ON ACCOUNT OF VARIO US DEPOSITS IN HIS BANK ACCOUNT. THE SOURCE OF THE DEPOSIT IN THE ACCOUNT OF SHRI VANDANA BAGGA AND SHRI HARESH THAKUR HAS BEEN EXAMINED AND DELIBERATE D UPON BY THE TRIBUNAL AND AFTER CONSIDERING THE SAME THE TRIBUNAL HAS TAKEN A VIEW THAT THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION TO THE EXTENT OF RS. 4 50 000/- AND RS. ITA NO. 4643/DEL/2000 5 OF 10 13 59 000/- IN THE HANDS OF MRS. VANDANA BAGGA AND SHRI HARESH THAKUR RESPECTIVELY AND THE ORDER OF LD. CIT(A) CALLS FOR NO INTERFERENCE. THE OPERATIVE PORTION OF THE TRIBUNALS ORDER IN THE AFORESAID TW O PERSONS CASE IS AS UNDER:- 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE H AVE ALSO PERUSED THE DOCUMENTARY EVIDENCE THAT HAVE BEEN FILED IN TH E PRESENT CASE. THE AGREEMENTS FOR SALE BETWEEN THE ASSESSEES AND M/S. AKSHAT VERDHMAN INVESTMENT LTD. CLEARLY SHOWS THAT AS CLEARLY AS 1/ 04/1996 THE ASSESSEE AGREED TO SELL THEIR RESPECTIVE PROPERTIES TO THE S AID COMPANY. THE COMPANY HAS ALSO CONFIRMED HAVING PAID AN ADVANCE O F RS. 4 50 000/- TO MRS. VANDANA BAGGA AND RS. 13 50 000/- TO SHRI HARE SH THAKUR. THE DETAILS OF DATES OF PAYMENTS OF CASH AS CONFIRMED B Y THE COMPANY ARE AVAILABLE AT PAGE NO. 10 OF THE PAPER-BOOK (SMT. VA NDANA BAGGA) AND AT PAGE NO. 8 (SHRI HARESH THAKUR). THE COMPANY HAS A LSO CONFIRMED THAT THE AGREEMENT ULTIMATELY DID NOT MATERIALIZE AND TH E ADVANCE RECEIVED BY THE ASSESSEE HAD BEEN RE-PAID IN THE FORM OF DEMAND DRAFT. THE COMPANY HAD DISCLOSED THIS TRANSACTION IN ITS BALANCE SHEET AND SUCH BALANCE SHEET HAD BEEN FILED ALONG WITH THE RETURNS OF INCOME OF THE COMPANY MUCH PRIOR TO THE COMMENCEMENT OF ENQUIRY ON THIS ISSUE BY THE ASSESSING OFFICER IN THE CASE OF THE FIRM. THE DOCUMENTARY E VIDENCE PRIMA FACIE EXPLAINED THE SOURCE OF FUNDS. THE ASSESSING OFFIC ER IF HE WANTS TO DISPROVE THE CONTENTS OF THE DOCUMENTARY EVIDENCE O UGHT TO HAVE MADE ENQUIRIES TO ESTABLISH THAT THE CLAIM OF THE ASSESS EE WAS FALSE. THE ASSESSING OFFICER HAS NOT THOUGHT IT FIT TO DO SO. EVEN BEFORE THE LD. CIT(A) AS AFFIDAVIT OF THE DIRECTOR OF THE COMPANY HAD BEEN FILED AFFIRMING ALL THE FACTS AS IT WAS TRANSPIRED FROM T HE DOCUMENTARY EVIDENCE. THE ASSESSING OFFICER HAD NOT THOUGHT IT FIT TO EVEN DEMAND A RIGHT OF CROSS EXAMINATION OF THE DIRECTOR OF THE C OMPANY. IN THE CIRCUMSTANCES WE ARE OF THE VIEW THAT THE ACTION O F THE CIT(A) IN DELETING THE ADDITION TO THE EXTENT OF RS. 4 50 000 /- AND RS. 13 50 000/- RESPECTIVELY IS IN ORDER AND CALLS FOR NO INTERFERE NCE. THE APPEALS OF THE REVENUE ARE THEREFORE DISMISSED. 12. WE HAVE HEARD BOTH THE PARTIES AND HAVE CAREFUL LY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE ITATS ORDE R DATED 26.10.2007 PASSED IN THE CASE OF SHRI HARESH THAKUR AND SMT. VANDANA BAG GA. IT HAS BEEN POINTED OUT AT THE TIME OF HEARING OF THIS APPEAL THAT THE TRIB UNALS ORDER DATED 26.10.2007 PASSED IN THE PARTNERS CASE HAS NOT BEEN APPEALED A GAINST EITHER BY THE ASSESSEE OR ITA NO. 4643/DEL/2000 6 OF 10 BY THE REVENUE. IN THE LIGHT OF THE CATEGORICAL FI NDING OF THE TRIBUNAL IN THE PARTNERS CASE THAT THEY HAVE BEEN ABLE TO EXPLAIN T HE SOURCE OF THE FUND DEPOSITED IN THEIR RESPECTIVE BANK ACCOUNT WE DO NOT FIND AN Y BASIS TO SUSTAIN ANY ADDITION ON ACCOUNT OF MONEY GIVEN BY THESE TWO PARTNERS TO THE ASSESSEE FIRM OUT OF THE SAID DEPOSIT MADE IN THEIR BANK ACCOUNT. THEREFORE THE ADDITION MADE BY THE A.O. IN THE HANDS OF THE FIRM OF LOAN OF RS. 4 59 5 00/- AND RS. 13 59 620/- BEING DEPOSIT IN THE NAME OF SMT. VANDANA BAGGA AND SHRI HARESH THAKUR RESPECTIVELY ARE DELETED AND THE GROUND NOS. 2 AND 3 RAISED BY T HE ASSESSEE ARE ALLOWED. AT THIS STAGE IT IS PERTINENT TO NOTE THAT OUT OF THE ORIGINAL ADDITION OF RS. 4 59 500/- BEING THE CASH CREDIT IN THE NAME OF SMT. VANDANA B AGGA ONLY THE SUM OF RS. 2 57 000/- WAS CONFIRMED BY THE LD. CIT(A) AND THE LATEST POSITION STANDS IN THIS CASE IS ABOUT THE ADDITION OF RS. 2 57 000/- ONLY I N THE NAME OF SMT. VANDANA BAGGA. SIMILARLY IN RESPECT OF THE CREDIT IN THE N AME OF SHRI HARESH THAKUR THE ADDITION TO THE EXTENT OF RS. 4 77 000/- WAS ONLY C ONFIRMED BY THE LD. CIT(A) AND THE ADDITION WITH REGARD TO THE BALANCE AMOUNT OF R S. 8 82 620/- WAS RESTORED BACK TO THE FILE OF THE A.O. AND IN THE COURSE OF F URTHER FRESH ASSESSMENT PROCEEDINGS IN PURSUANCE TO THE MATTER REMANDED BAC K TO THE A.O. FOR HIS FRESH CONSIDERATION THE ADDITION OF RS. 8 82 620/- STAND S FINALLY DELETED. BE THAT AS IT MAY IN THE LIGHT OF THIS ORDER AND THE ORDER OF TH E TRIBUNAL DATED 26.10.2007 IN THE CASE OF THE PARTNERS THE WHOLE OF THE ADDITION ORIGINALLY MADE BY THE A.O. TO THE EXTENT OF RS. 4 59 500/- AND RS. 13 59 620/- SH ALL STANDS DELETED. WE ORDER ACCORDINGLY. ITA NO. 4643/DEL/2000 7 OF 10 13. GROUND NO. 4 RELATES TO THE ADDITION OF RS. 4 4 0 000/- MADE BY THE A.O. OUT OF WHICH THE ADDITION OF RS. 50 000/- HAS BEEN CONFIRMED BY THE LD. CIT(A) AND THE BALANCE SUM OF RS. 3 90 000/- HAS BEEN REST ORED BACK TO THE FILE OF THE A.O. FOR HIS FRESH ADJUDICATION. 14. THE ASSESSEE IS IN APPEAL AGAINST THE AFORESAID ORD ER OF LD. CIT(A) IN CONFIRMING THE ADDITION OF RS. 50 000/- AND IN REST ORING THE MATTER ABOUT THE ADDITION OF RS. 3 90 000/- TO THE A.O. FOR FRESH AD JUDICATION. 15. WE HAVE HEARD BOTH THE PARTIES AND HAVE CAREFUL LY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. 16. IN SO FAR AS THE LD. CIT(A)S ACTION IN RESTO RING THE MATTER ABOUT THE ADDITION OF RS. 3 90 000/- TO THE FILE OF THE A.O. IS CONCERNED WE DO NOT FIND ANY ILLEGALITY IN HIS ORDER IN SO FAR AS THE ASSESSEE S HALL HAVE FULL OPPORTUNITY TO PRODUCE AND FURNISH EVIDENCES IN SUPPORT OF THE SOU RCE OF RS. 3 90 000/- BEING ALLEGED LOAN TAKEN FROM SHRI HARESH THAKUR. HOWEVE R WITH REGARD TO THE ADDITION OF RS. 50 000/- CONFIRMED BY THE LD. CIT(A ) WE FIND THAT WHEN THE ADDITION OF RS. 3 90 000/- DEPOSITED BY SHRI HARESH THAKUR HAS BEEN REMITTED BACK TO THE FILE OF THE A.O. FOR HIS FRESH ADJUDICA TION THERE WAS NO REASON AS TO WHY THE MATTER ABOUT THE AMOUNT OF RS. 50 000/- GIV EN BY SHRI HARESH THAKUR TO THE ASSESSEE FIRM SHOULD NOT BE FRESHLY EXAMINED AF TER EXAMINING THE SOURCE AND GENUINENESS OF THE TRANSACTION. AT THIS STAGE IT IS PERTINENT TO NOTE THAT IN THE FRESH ASSESSMENT PROCEEDINGS THE ADDITION OF RS. 3 90 000/- HAS BEEN REPEATED BY THE A.O. AND ON AN APPEAL THE LD. CIT(A) HAS ALSO CONFIRMED THE ADDITION. ITA NO. 4643/DEL/2000 8 OF 10 HOWEVER IN AN APPEAL BEFORE THE TRIBUNAL AGAINST T HE LD. CIT(A)S ORDER PASSED IN THE SECOND ROUND THE ISSUE WITH REGARD TO THE A DDITION OF RS. 3 90 000/- HAS BEEN RESTORED BACK BY US TO THE FILE OF THE LD. CIT (A) FOR HIS FRESH CONSIDERATION VIDE OUR ORDER OF EVEN DATE IN ITA NO. 2529/DEL/200 3. SINCE THE ISSUE ABOUT THE ADDITION OF RS. 3 90 000/- HAS BEEN RESTORED BACK T O THE FILE OF THE LD. CIT(A) FOR HIS FRESH ADJUDICATION LET THE OTHER CONNECTED ITE M OF RS. 50 000/- BEING AMOUNT GIVEN BY SHRI HARESH THAKUR BE ALSO RESTORED BACK T O THE FILE OF THE LD. CIT(A) FOR HIS FRESH ADJUDICATION AS PER OUR OBSERVATION M ADE WITH REGARD TO THE SUBJECT MATTER OF ADDITION OF RS. 3 90 000/- AS GIVEN IN OU R ORDER OF EVEN DATE IN ITA NO. 2529/DEL/2003. WE THEREFORE RESTORE THE ADDITION OF RS. 50 000/- TO THE FILE OF THE LD. CIT(A) FOR HIS FRESH ADJUDICATION. WE ORDER ACCORDINGLY. 17. GROUND NO. 5 IS WITH REGARD TO THE DISALLOWANCE OF THE SUM OF RS. 13 068/- BEING 1/5 TH OF VARIOUS EXPENSES FOR PERSONAL USE OF CAR BY THE PARTNERS DISALLOWANCE OF RS. 10 000/- OUT OF TELEPHONE EXPEN SES FOR PERSONAL USE OF TELEPHONE BY PARTNERS AND RS. 3 083/- OUT OF BUSINE SS PROMOTION EXPENSES WHICH HAVE BEEN CONFIRMED BY THE LD. CIT(A) BY OBSERVING THAT THE ASSESSEE HAS FAILED TO PROVE AND ESTABLISH THAT ALL THE EXPENSES CLAIME D BY IT WERE INCURRED FOR BUSINESS PURPOSE. 18. WE HAVE HEARD BOTH THE PARTIES AND HAVE CAREFUL LY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. 19. THE LD. COUNSEL FOR THE ASSESSEE HAS NOT BEEN A BLE TO POINT OUT BEFORE US THE DETAILS OF ALL THESE EXPENSES SO AS TO ASCERTAI N THAT THE EXPENSES WERE WHOLLY ITA NO. 4643/DEL/2000 9 OF 10 AND EXCLUSIVELY INCURRED FOR THE BUSINESS PURPOSE. THERE IS NO DISPUTE TO THE FACT THAT THE TELEPHONE AND THE CAR WERE ALSO BEING USED BY THE PARTNERS FOR THEIR PERSONAL PURPOSES. THE PART DISALLOWANCE MADE BY T HE A.O. AND FURTHER CONFIRMED BY THE LD. CIT(A) CANNOT BE SAID TO BE EX CESSIVE. WE THEREFORE UPHELD THE ORDER OF LD. CIT(A) IN CONFIRMING THE A. O.S ORDER IN MAKING THE AFORESAID DISALLOWANCE. 20. GROUND NO. 6 OF THE REVISED GROUND OF APPEAL IS DIRECTED AGAINST THE LD. CIT(A)S ORDER IN DIRECTING THE A.O. TO DETERMINE I N INCOME SHOWN BY THE ASSESSEE FROM JOB WORK AND TO DETERMINE THE TRADING RESULT SHOWN BY THE ASSESSEE. 21. WE HAVE HEARD BOTH THE PARTIES AND HAVE CAREFUL LY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. 22. IN THE COURSE OF APPELLATE PROCEEDINGS THE LD. CIT(A) HAS OBSERVED THAT THE MATTER WITH REGARD TO THE INCOME FROM JOB WORK AND TRADING SHOWN BY THE ASSESSEE NEED TO BE CONSIDERED WHILE MAKING THE ASS ESSMENT. THE LD. CIT(A) WAS OF THE OPINION THAT THIS DIRECTION GIVEN BY HIM IS NOT WITH REGARD TO THE NEW SOURCE OF INCOME BUT IT IS WITH REGARD TO THE MATTE R WHICH HAS ALREADY BEEN CONSIDERED AND DEALT WITH BY THE A.O. IN THE ASSESS MENT PROCEEDINGS BUT THE A.O. HAS NOT BOTHERED TO MAKE ANY EFFORT TO ASCERTA IN WHETHER THE GP RATE SHOWN BY THE ASSESSEE WERE CORRECT. 23. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD WE FIND THAT THIS MATTER HAS BEEN RESTORED BACK TO THE FILE OF THE A.O. FOR HIS CONSIDERATION ITA NO. 4643/DEL/2000 10 OF 10 WHERE THE ASSESSEE HAS BEEN GIVEN FULL OPPORTUNITIE S TO HAVE HIS SAY. WE FURTHER FIND THAT THIS IS NOT THE MATTER WHICH IS CONNECTE D TO ANY NEW SOURCE OF INCOME THAT WAS SOUGHT TO BE BROUGHT TO TAX BY THE LD. CIT (A). THE MATTER WHICH HAS BEEN RESTORED BY THE LD. CIT(A) IS WITH REGARD TO T HE SAME SOURCE OF INCOME FROM BUSINESS WHICH HAS BEEN SHOWN BY THE ASSESSEE IN TH E RETURN OF INCOME AND WAS ALSO A SUBJECT MATTER OF ASSESSMENT PROCEEDINGS. W E THEREFORE DO NOT FIND ANY ILLEGALITY IN THE ORDER OF THE LD. CIT(A) IN DIRECT ING SO. THUS THIS GROUND RAISED BY THE ASSESSEE IS REJECTED. 24. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED IN THE MANNER AS INDICATED ABOVE. 25. THIS DECISION IS PRONOUNCED IN THE OPEN COURT O N 29 TH JANUARY 2010. SD/- SD/- (B.P. JAIN) ACCOUNTANT MEMBER (C.L. SETHI) JUDICIAL MEMBER DATED: 29 TH JANUARY 2010. MAMTA COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT NEW DELHI. BY ORDER DEPUTY REGISTRAR