IN INCOME TAX APPELLATE TRIBUNAL "F" Bench, Mumbai Before Shri Jason P. Boaz, Accountant Member and Shri Sandeep Gosain, Judicial Member ITA No. 2908/Mum/2012 (Assessment Year: 2008-09) C I T - 23(3) Smt. Vimla J. Gurnani C-10, Pratyakshakar F-401, Redwook Soceity Bhavan, 4th Floor, BKC Vs. Vasant Garden, Behind Mumbai 400051 Veena Nagar Mulund (W) - 400080 PAN - AECPG0902R Appellant Respondent Appellant by: Shri Dipak Kumar Sinha Respondent by: Shri Jigna Parekh Date of Hearing: 24.08.2016 Date of Pronouncement: 16.09.2016 ORDER Per Jason P. Boaz, A.M. This appeal by Revenue is directed against order of CIT(A)-33, Mumbai dated 24.02.2012 for A.Y. 2008-09. 2. facts of case, briefly, are as under: - 2.1 assessee, individual, filed her return of income for A.Y. 2008- 09 on 31.07.2008 declaring loss of `17,30,697/-. case was subsequently taken up for scrutiny and completed under section 143(3) of Income Tax Act, 1961 (in short 'the Act') vide order dated 28.12.2010, wherein income of assessee was determined at `1,94,19,483/- in view of following additions: - (i) Unexplained cash credit under section 68 `2,05,22,380/- (ii) Unexplained cash deposit in Andhra Bank ` 1,5,000/- (iii) 10% interest income on bank deposits ` 77,800/- (iv) Unexplained source of investment in ` 4,00,000/- Reliance Mutual Fund 2 ITA No. 2908/Mum/2012 Smt. Vimla J. Gurnani 2.2 Aggrieved by order of assessment dated 28.12.2010 for A.Y. 2008-09, assessee preferred appeal before CIT(A)-33, Mumbai. learned CIT(A) disposed off appeal allowing assessee partial relief. In impugned order learned CIT(A) deleted additions made in order of assessment listed at para 2.1 of this order (supra) at (i) Unexplained cash credits of `2,05,22,380/- and at (iv) Unexplained source investment in Reliance Mutual Fund of `4,00,000/-. other two additions made by Assessing Officer (AO) listed at para 2.1 of this order (supra) at (ii) and (iii) were upheld. 3. Aggrieved by order of CIT(A)-33, Mumbai Revenue is in appeal raising following grounds: - 1. On facts and circumstances of case and in law CIT(A) erred in deleting addition of Rs.2,05,22,380/- on account of unexplained cash credit u/s 68 of I.T. Act, 1961. Even though Assessee failed to prove genuineness of unsecured loans. 2. On facts and circumstances of case and in law, learned CIT(A) erred in admitting additional evidence without giving opportunity to A.O. which is in violation of Rule 46A of I.T. Rules, 1962. 3. appellant craves leave to add, to amend, alter, substitute or modify any of above ground or add fresh ground as and when found necessary either before or at time of hearing. 4. Ground No. 3, being general in nature, no adjudication is called for thereon. 5. Grounds 1 and 2: 5.1 In these grounds, which are interconnected, Revenue assails order of learned CIT(A) in deleting addition of `2,05,22,380/- on account of unexplained cash credits under section 68 of Act even though assessee has failed to prove genuineness of unsecured loans. It was further contended that learned CIT(A) had erred in admitting additional evidence without affording opportunity to AO which is in violation of Rule 46A of IT Rules, 1962. learned D.R. for Revenue was heard and placed strong reliance on order of AO on this issue. 3 ITA No. 2908/Mum/2012 Smt. Vimla J. Gurnani 5.2.1 Per contra, learned A.R. for assessee supported finding of learned CIT(A) in deleting addition of `2,05,22,380/- made on account of unexplained cash credits under section 68 of Act by AO. learned A.R. for assessee reiterated submissions put forth before learned CIT(A). According to learned A.R. assessee was staying alone in rented premises after death of her husband, as all her children were NRIs, married and settled abroad. After their father s death, assessee s children decided to purchase flat for their mother (i.e. Flat No. 406, Oberoi Springs, Goregaon (E), Mumbai from M/s. Oberoi Construction P. Ltd.) Since assessee was widow, staying alone, children elicited help of assessee s sister Smt. Laxmi Bhatia to deal with Builder in purchase of flat and it is for this reason that Smt. Bhatia s name was included as purchaser thereof, instead of assessee, who is actual purchaser. In these circumstances, Builder refused to enter into any agreement with assessee and instead, made tripartite agreement between Smt. Bhatia, assessee and itself , wherein consideration for sale of flat was shown at `1,51,84,152/- as against actual sale price of `88,72,500/- and difference thereof was shown as payable. 5.2.2 It is submitted that both before AO and learned CIT(A), assessee had furnished copies of purchase agreement of flat, copies of bank account, copies of relevant pass books of assessee s relatives who had contributed towards purchase of aforesaid property for assessee and confirmation thereof, i.e. of Shri Dilip Gurnani (son), Deepa Hopchandani (daughter), Kamal Sadhwani (brother-in-law) and Manju Kamal Sadhwani (sister). learned CIT(A) has also acknowledged that same details were filed before her in form of paper book. It is submitted that apart from above, assessee had also filed affidavit of Smt. Laxmi Bhatia reiterating facts of matter, which were already explained to AO in assessment proceedings. In this context, it is submitted by learned A.R. for assessee that contention of Revenue that learned CIT(A) had admitted additional evidence without giving AO opportunity under Rule 46A of IT Rules 4 ITA No. 2908/Mum/2012 Smt. Vimla J. Gurnani is baseless. All evidences in form of copies of PAN, passports, bank accounts and confirmations of aforesaid blood relatives considered by learned CIT(A) while deleting addition of `2,05,22,380/- made on account of unexplained cash credits under section 68 of Act, were also admittedly before AO in assessment proceedings. It is contended that written submissions put forth before learned CIT(A) in appellate proceedings are only arguments and not additional evidence and affidavit of Smt. Laxmi Bhatia was only to corroborate and reiterate facts of matter which were urged before learned CIT(A). No additional evidences were admitted by learned CIT(A) in course of appellate proceedings as is evident from findings rendered at paras 3.3 to 3.12 of impugned order. It was prayed that in light of above, Revenue s appeal be dismissed. 5.3.1 We have heard rival contentions of both parties and perused and carefully considered material on record. dispute raised before us by Revenue is deletion by learned CIT(A) of addition of `2,05,22,380/- under section 68 of Act as unexplained cash credits in assessee s hands, made by AO in respect of following parties: - 1. Kamal S. Sadhwani `49,11,550/- 2. Manju Kamal Sadhwani `29,85,486/- 3. Deepa Hopchandani `84,14,092/- 4. Laxmi Bhatia `62,11,252/- Total addition under section 68 `2,05,22,380/- 5.3.2 above addition under section 68 of Act made by AO in context of sources of investment in purchase of flat No. 406, Oberoi Springs, Goregaon (E), Mumbai by assessee, was deleted by learned CIT(A) in impugned order holding as under at paras 3.4 to 3.12 thereof: - 3.4 After going through all these facts and submissions made by appellant I have come to understand facts as under: (1) appellant is lady staying in rented house alone whereas her children, all major, married are settled abroad and still having bank accounts in India as per chart given below: 5 ITA No. 2908/Mum/2012 Smt. Vimla J. Gurnani S. Name Citizen of PAN Bank A/c in India `Whether No. country return is filed for A.Y. 2008-09 1 Kamal S. Spain BJGPS4876N Axis Bank No. Yes Sadhwani 004010100502993 & No. 004010100503006 2 Manju K. Spain BJGPS5172K Axis Bank No. N.A. Sadhwani 572010100017693 3 Deepa Resident of ACJPH0710R NRE Bank account N.A. Hotchandani Shanghal HDFC No. 00151060009614 NR Preferred and Bank of Baroda 4 Laxmi Bhatia India - - N.A. (2) Subsequent to death of their father these children decided to purchase house for mother however she being alone and not competent to deal with Builder, Oberoi Constructions P. Ltd., builder was approached by her sister Mrs. Laxmi Bhatia for purchase of flat No.406 in Oberoi Springs. letter of allotment of 18.05.2006 was issued by builder in name of Mrs. Laxmi Bhatia for consideration of Rs.88,72,900/-. Against same Mrs. Laxmi Bhatia has paid amount in installment. (3) appellant has filed ledger account of Mrs. Laxmi Bhatia as it appears in books of accounts of Oberia Construction Pvt. Ltd. given by them. Same is in form of Annexure-'A' . It is noted that: (i) first payment of Rs.4,43,645/- made by Mrs. Laxmi Bhatia on 12.04.2006 by cheque No.062670 then second Rs.15,18,225/- vide cheque No. 0282147 dated 15.05.2006 and third Rs.7,00,000/- by cheque No. 816754 dated 12.05.2006. Then there are further payments as can be seen from Annexure-A totaling to Rs. 35,00,358/ done by Mrs. Laxmi Bhatia. It is seen that booking amount of Rs. 4,43,645/- paid by Mrs. Laxmi Bhatia was reimbursed to her by cheque No. 990231 dated 12.05.2006 for amount of Rs. 4,43,645/- from joint saving account No.SB/01/00000336 of Mrs. Vimla J. Gurnani and Jeevan L. Gurnani, her late spouse. (ii) Coming to payment of Rs. 15,18,225/- and Rs. 7,00,000/- as well as others appearing in Annexure-A they all have been paid by cheques issued by Mrs. Deepa Hotchandani, daughter of appellant, Smt. Vimala J. Gurnani as is evident from account number maintained by Deepa Hotchandani with HDFC Bank, Mulund Branch A/c. No. 00 151060009614N preferred and Bank of Baroda. Thus initial booking was done by Smt. Laxmi Bhatia and that amount was also reimbursed by appellant only from her joint account and then other payments appearing in ledger account which are confirmed by builder while issuing letter of allotment were also made by 6 ITA No. 2908/Mum/2012 Smt. Vimla J. Gurnani appellant's daughter Deepa Hotchandani. It emerges that Smt. Laxmi Bhatia was only facilitator for booking flat. Same is evident from details given in form of chart for payments received by builder through Mrs. Laxmi Bhatia with letter of allotment dated 18.5.2006. Sr. Cheque Amount Bank on which Actually paid by No. No./ date drawn 1 06270 4,43,645/- HSBC, Mumbai Mrs. Vimla Gurnani by way of 13.04.2006 reimbursement 2 082147 15,18,225/- Bank of Baroda Mrs. Deepa Hotchandani 12.05.2006 3 816754 7,00,000/- HDFC, Mumbai Mrs. Deepa Hotchandani 12.05.2006 Total 26,61,870/- 3.5 appellant was also asked to furnish copy of purchase deed of house. Same has been furnished. I have perused clauses of agreement, relevant are reproduced as under: (xix) Pursuant to request made by confirming party/ies developer agreed to allot to confirming party/ies Flat No.406 admeasuring about 997 sq.ft. (built-up) including planter area on 4th floor at Building Oberoi Springs shown on plan hereto annexed marked Annexure (hereinafter referred to as said premises") together with 1 car parking/s for consideration of Rs.88,72,900/- (Rupees Eighty Eight Lakhs Seventy Two Thousand Nine Hundred only) and on terms and conditions as recorded in letter of allotment dated 18 May 2006 of said premises. (xx) Out of total consideration of Rs.88,72,900/- (Rupees Eighty Eight lakhs Seventy Two Thousand Nine Hundred only) confirming party/ies have paid sum of Rs.55,36,689/- (Rupees Fifty Five Lakhs Thirty Six Thousand Six Hundred Eighty Nine only) to developer and Rs.33,36,211/- (Rupees Thirty Three Lakhs Thirty Six Thousand Two Hundred and Eleven only) is still payable by confirming party/ies to developers." "4. Out of total consideration of Rs.15,184,152/-(Rupees One Crore Fifty One Lakh Eighty Four Thousand One Hundred and Fifty Two only) sum of Rs.11,847,941/- (Rupees One Crore Eighteen Lakhs Forty Seven Thousand Nine Hundred and Forty One only) shall be payable by purchaser to confirming party/ies and balance sum of R.3,336,211/- (Rupees Thirty Three Lakhs Thirty Six Thousand Two Hundred and Eleven only) shall be payable by purchaser to developer. 5. purchaser has paid said sum of Rs.5,536,689/- (Rupees Fifty Five Lakhs Thirty Six Thousand Six Hundred and Eighty Nine only) to confirming party/ies on or before execution hereof (the payment and receipt confirming party/ies both hereby admit and acknowledge). balance sum of Rs.6,311,252/- (Rupees Sixty Three Lakhs Eleven Thousand Two Hundred Fifty Two only), shall be paid by 7 ITA No. 2908/Mum/2012 Smt. Vimla J. Gurnani purchaser to confirming party within 30 days from execution of these presents. 6. purchaser/s shall pay to Developer balance consideration of Rs.3,336,211/- (Rupees Thirty Three Lakhs Thirty Six Thousand Two Hundred and Eleven only) (in addition to all other amounts including amounts mentioned in clause 29 & 30 hereafter), in following manner." 3.6. letter of allotment also shows actual consideration agreed with parties was Rs.88,72,900/- against which amount of Rs.55,36,689/- was received by builder till date of agreement and balance Rs.33,36,211/- only was payable. appellant was asked reason for sudden enhancement in consideration amount of flat reflected at Rs. 1,51,84,152/-. In response to same appellant has brought to my attention to clause 4,5,6 on page 10 which have already been reproduced above. It is noted from same that builder has actually got Rs.88,72,900/- only whereas enhanced price of flat has been taken to make agreement for reason that he was entering into agreement with others also approximately at this rate for flats sold to others. Builder apparently raised technical objection that letter of allotment was in name of Mrs. Laxmi Bhatia whereas actually purchaser is appellant Mrs. Vimla J. Gurnani. In view of this builder has made tripartite agreement at price at which he was selling flats at that time i.e. at time of registering agreement. It is also not disputed that these cheques were issued by appellant's daughter, son and sister-in- law who all are staying abroad through their accounts maintained in India and these cheques issued by them were cleared from their accounts though handed over through Mrs. Laxmi Bhatia. At time of entering into agreement for taking possession of property on 28.12.2007 and registered on 11.01.2008 it is undisputed that market price is Rs.50,40,000/- whereas consideration has been reflected at `1,51,84,152/-. 3.7 It is not disputed that even as per stamp duty valuation flat was commanding price of Rs.50,40,000/- only. It is also not disputed that builder has allotted flat way back in 2006 by letter of allotment of 18.05.2006 for price of Rs.88,72,900/ - which is much above market rate as per stamp duty authorities of Rs.50,40,000/- prevailing in January 2008. Even if it is assumed that builder was selling others flat @ rate which has been reflected at Rs.1,51,84,152/-, appellant being purchaser cannot be brought into net of provision of sec.50C which is applicable to seller. In this case neither purchaser nor seller are hit by provision of sec.50C for reason that seller is builder. Thus sec.50C is not applicable for reason that appellant is purchaser of property. 3.8 After going through all these details I am convinced that it is case where tripartite agreement has been entered for enhanced consideration of flat which was neither due nor paid and same 8 ITA No. 2908/Mum/2012 Smt. Vimla J. Gurnani was not payable even subsequent to agreement entered into 11.01.2008. It is also case that appellant has filed case declaring total loss at Rs. 17,30,697- against which other investments as well as purchase of immovable property amount has been added to tax income in her hands at Rs.1,94,19,483/- when facts remains that total investments have been made by appellant's children whose identity is not doubted as is evident from passport that they are citizen of Spain and Singapore. Further credit worthiness is not doubted as they are well settled and living with their respective families. Then coming to transactions it is also not doubted that accounts are maintained in their account in India as NRI account from where all these cheques are issued. 3.9 Coming to unexplained loans reflected in name of Mrs. Laxmi Bhatia at Rs.62,11,252/- it has actually never been taken and hence is not due and payable. It has come into picture only for reason that said investment in flat is being reflected at Rs.1,59,58,232/- in place of actual amount payable and paid as per letter of allotment and in accordance with registered agreement remains at Rs.88,72,900/-. Thus there is artificial increase of Rs.63,11,252/- out of which Rs.62,11,252/- is reflected in name of Mrs. Laxmi Bhatia, Then Mrs. Laxmi Bhatia who has been shown as original purchaser of property in letter of allotment and letter of confirming party at time of registering agreement for purchase of property is actually nothing more than carrier of cheques. It is not case. That she has invested any amount towards purchase of property in her name even initially out of her funds. It is matter of record that she is not income tax payer also. 3.10 This way it comes to be case where balance sheet of appellant has been prepared where names of these creditors ie. sons, daughter, sister and brother-in-law and another sister have been reflected out of whom no amount is refundable to any of these children and Mrs. Bhatia. As regards loan amount in name of sister and brother-in-law they have been confirmed to be loans. Thus it is sheer gesture on part of children of appellant that amount has been invested for purchase of property though in name of mother and son Mr. Dilip Gurnani only jointly which actually belongs to her and children with very obvious intention that whenever they come to India they have place to stay. 3.11 affidavit filed by Smt. Laxmi Bhatia also reiterates same that she was only facilitator for purchase of said flat as amount was paid from funds arranged through her sister; appellant herself and appellant's sons and daughters and sister and brother in law. Even keeping affidavit aside bank account copies furnished are showing entries and supporting claim of appellant. Hence I find force in argument of appellant that no fund of Smt. Laxmi Bhatia was invested in flat which is appearing in name of appellant and hence affidavit filed by Smt. Laxmi Bhatia that she does not have any right, title or interest in said flat 9 ITA No. 2908/Mum/2012 Smt. Vimla J. Gurnani that no amount is payable to her for difference as is reflected in tripartite agreement dated 11.01.2008 is reliable being supported by facts. 3.12 In view of this, coupled with undisputed fact that appellant's son whose name is also incidentally appearing as purchaser along with appellant on page 2, Mr. Dilip J. Gurnani and that he himself, daughter Deepa Hotchandani, brother-in-law Kamal Sheetaldas Sadhwani Gopwani and sister Manju Kamal Sadhwani who all are staying abroad (as is evident from passport in their names) where they have business abroad and have invested funds through their bank accounts maintained in India, identity, credit worthiness and purpose of transactions for amount appearing in name of these persons cannot be doubted. It is noteworthy that this balance sheet was drawn during course of assessment hearings only showing same as it was never drawn being case of individuals with no books of accounts maintained. It is also noteworthy that appellant being individual dealing only in share trading and not maintaining books of accounts has drawn balance sheet during assessment proceedings in order to match her assets and liabilities. In view of fact that amount shown in following names are properly explained addition u/s.68 for these amount totaling to Rs.2,05,22,380/- as below : Ms.Deepa Hopchandani, daughter : Rs.84,14,092/- Kamal S. Sadhwani- Brother-in-law : Rs.29,11,550/- Manju Kamal Sadhwani- Sister and : Rs.29,85,486/- Laxmi Bhatia, Sister : Rs.62,11,252/- Dilip Gurnani : Rs.8,00,000/- In view of this addition u/s. 68 being not sustainable is deleted herewith. Hence ground No.1 is allowed. 5.3.2 As can be seen from finding rendered by learned CIT(A) (supra), learned CIT(A) while dealing with this issue of investments made by close relatives of assessee, i.e. Dilip Gurnani (son), Deepa Hotchandani (daughter), Kamal S. Sadhwani (brother-in-law) and Manju Kamal Sadhwani (sister-in-law), all NRIs settled abroad, has examined proof of their citizenship, copy of respective passports, copy of bank accounts for relevant period, copy of purchase agreement of said flat and confirmation from these relatives, which we find were also before AO and considered in assessment proceedings. On basis of these documents and other written submissions learned CIT(A) has disposed off assessee s appeal on this issue by deleting aforesaid addition made under section 68 of Act, since learned CIT(A) was of view 10 ITA No. 2908/Mum/2012 Smt. Vimla J. Gurnani that identity, credit worthiness and genuineness of transaction of purchase of flat was established. 5.3.3 learned CIT(A), in impugned order, after examining material on record, observed that facts of case on hand are that assessee, widow, has been living alone in rented premises after death of her husband. Subsequent to their father s death, assessee s children decided to purchase flat for her at No. 406, Oberoi Springs, Goregaon (E), Mumbai ( said flat ). In this regard children sought help of assessee s sister Smt. Laxmi Bhatia to deal with Builder, M/s. Oberoi Construction P. Ltd. As per letter of allotment dated 18.05.2006 issued by Builder consideration for said flat was `88,72,900/-. allotment letter was issued in name of Smt. Laxmi Bhatia since she dealt with Builders and facilitated payments in respect to acquisition of said flat. In these circumstances, Builders refused to enter into any agreement with assessee, but rather entered into tripartite agreement with Smt. Laxmi Bhatia, assessee and itself; wherein consideration for sale of flat was shown as `1,51,84,152/- (the Builder was said to be selling other flats to customers at that rate) as against recorded sale price of `88,72,900/- which was also recorded in agreement. 5.3.4 learned CIT(A) at para 3.4 of her order, after examining bank statements of Mrs. Laxmi Bhatia vis-a-vis her ledger account, as it appeared in books of account of Builders, observed that cheques issued by her to Builders from her bank account for acquisition of said flat were reimbursed by assessee and her children, details of which are at para 3.4(3)(ii) of CIT(A) order and extracted as under: - Sr. Cheque Amount Bank on which Actually paid by No. No./ date drawn 1 06270 4,43,645/- HSBC, Mumbai Mrs. Vimla Gurnani by way of 13.04.2006 reimbursement 2 082147 15,18,225/- Bank of Baroda Mrs. Deepa Hotchandani 12.05.2006 3 816754 7,00,000/- HDFC, Mumbai Mrs. Deepa Hotchandani 12.05.2006 Total 26,61,870/- 11 ITA No. 2908/Mum/2012 Smt. Vimla J. Gurnani 5.3.5 On examination of purchase deed of said flat, learned CIT(A) observed that both purchase deed dated 11.01.2008 as well as letter of allotment shown actual sale consideration of said flat at `88,72,900/-, against which amount of `55,36,689/- was paid to Builder till date of agreement and `33,36,211/- only was balance payable. learned CIT(A) also admitted that there is no dispute with fact that cheques towards purchase of said flat were issued by assessee s daughter, son and other close relatives, staying abroad, through their bank accounts maintained in India and that these were handed over through Mrs. Laxmi Bhatia. learned CIT(A) also noted that at time of entering into agreement for taking possession of flat and date of registration of sale agreement dated 11.01.2008, market price of said flat was `50,40,000/- as per stamp duty valuation authorities, whereas consideration in agreement/allotment letter was `88,72,900/- which was much higher. learned CIT(A) at para 3.8 of impugned order (supra) held that total investment in purchase of said flat is undoubtedly by assessee s children; whose identity is established as per their passports, prove that they are citizens of Spain and Singapore; then genuineness of transaction concerned with and relevant to purchase of said flat are also not to be doubted. 5.3.6 In respect of alleged unexplained loans reflected in name of Smt. Laxmi Bhatia, at `62,11,252/-, learned CIT(A) has, after judiciously examining material on record in this regard, came to finding that said transactions had never actually taken place and therefore was not due and payable. This figure of `61,11,252/- was artificial increase in name of Mrs. Laxmi Bhatia and had appeared, since investment in flat as per agreement was shown at `1,51,84,152/-; whereas as per letter of allotment and in accordance with registered agreement consideration for purchase of flat is recorded at `88,72,900/-. In fact, according to learned CIT(A) Mrs. Bhatia s name appeared in allotment letter only because of her dealing with builder for facilitating purchase of said flat for assessee and it is not case of AO that she had invested any amount in 12 ITA No. 2908/Mum/2012 Smt. Vimla J. Gurnani purchase of said property at any stage. learned CIT(A) also observed that affidavit of Mrs. Laxmi Bhatia reiterates fact that she was only facilitator for purchase of said flat on behalf of assessee, as funds for purchase thereof were arranged through assessee s and her close relatives and entries in bank account copies examined, corroborate claim of assessee. 5.3.7 In factual matrix of case, as discussed above, we concur with factual findings of learned CIT(A) that it has been established that assessee s son, Dilip Gurnani; daughter Ms. Deepa Hotchandani; brother-in-law Shri Kamal S. Sadhwani and sister-in-law Smt. Manju Kamal Sadhwani, resident and carrying on business abroad, have invested their funds through their bank accounts maintained in India, in purchase of said flat. identity of investors; close family members and their creditworthiness has been established and genuineness of transactions cannot be doubted. We, therefore, uphold finding of learned CIT(A) in impugned order that amount of `2,05,22,380/- shown in names of four persons (viz. above relatives of assessee) as listed in para 5.3.1 of this order are properly explained and therefore addition of this amount as unexplained cash credits under section 68 of Act is to be deleted. Consequently, ground No. 1 of Revenue appeal is dismissed. 5.4 Revenue contends in ground of appeal No. 2 that learned CIT(A) erred in admitting additional evidence and decided issue in favour of assessee without affording AO opportunity of being heard in matter, which is in violation of Rule 46A of I.T. Rules, 1962. We have perused finding of learned CIT(A) (supra) and do not find any instance of learned CIT(A) having admitted any additional evidence, which required that AO to be provided opportunity to rebut same under Rule 46A of IT Rules. In our view, on basis of facts on record, we find that documents/details considered by learned CIT(A) in coming to finding she did were filed before AO in assessment proceedings as can be seen from order of assessment. learned D.R. 13 ITA No. 2908/Mum/2012 Smt. Vimla J. Gurnani was also unable to point out any such instance of learned CIT(A) admitting any additional evidence on basis of which addition under section 68 of Act was deleted. In this factual matrix, we find no merit in ground No. 2 raised by Revenue and accordingly dismiss same. 6. In result, Revenue s appeal for A.Y. 2008-09 is dismissed. Order pronounced in open court on 16th September, 2016. Sd/- Sd/- (Sandeep Gosain) (Jason P. Boaz) Judicial Member Accountant Member Mumbai, Dated: 16th September, 2016 Copy to: 1. Appellant 2. Respondent 3. CIT(A) -33, Mumbai 4. CIT - 23, Mumbai 5. DR, F Bench, ITAT, Mumbai By Order //True Copy// Assistant Registrar ITAT, Mumbai Benches, Mumbai n.p. ACIT - 23(3), Mumbai v. Vimla J. Gurnani