JUDGMENT : K.S. Jhaveri, J. 1. Being aggrieved and dissatisfied with the impugned judgment and order passed by the Income Tax Appellate Tribunal, Ahmedabad Bench 'D' (hereinafter referred to as ITAT) dated 13.10.2006 in IT(SS)A No. 127/Ahd/2005 for the block assessment period from 01.04.1995 to 22.01.2002, the assessee has preferred the present Tax Appeal for consideration of the following substantial question of law: "A. Whether, on the facts and circumstances of the case, the Tribunal was right in law in deleting the addition u/s. 69B of Rs. 8,82,18,073/- made towards understatement of the cost of imported machinery? C. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in setting aside the addition of Rs. 84 lacs as deemed income u/s. 69B made on account of undisclosed cash payment for the construction of the assessee's factory? F. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in setting aside the addition of Rs. 7.59 lacs as deemed income u/s. 69B made on account of undisclosed expenditure in cash on the basis of entries in the seized paper? G. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in directing to calculate interest u/s.158GFA(1) from the date of supply of copies of seized material and not from the date immediately following the expiry of time prescribed in the notice u/s. 158BC as laid down in unequivocal terms in section 158BFA (1)?" 2. The Tribunal has allowed the appeal of the assessee deleting an addition of Rs. 8,82,80,750/- confirmed by CIT(A) and dismissed it against another addition of Rs. 7,50,000/- which was also confirmed by the CIT(A). On other three issues, the order of CIT(A) was set aside and the matters were remanded to the Assessing Officer with specific directions. 3. So far as issues No. C, F, & G are concerned, the same have been remanded to the Assessing Officer for reconsideration and therefore we are not inclined to disturb the same. Therefore, questions No. (C), (F) & (G) are not decided and the same are kept open. 4. This takes us to the remaining sole question which in with regard to addition made by the Assessing Officer u/s. 69B of Rs. 8,82,18,073/- made towards under statement of cost of imported machinery. Therefore, questions No. (C), (F) & (G) are not decided and the same are kept open. 4. This takes us to the remaining sole question which in with regard to addition made by the Assessing Officer u/s. 69B of Rs. 8,82,18,073/- made towards under statement of cost of imported machinery. In the order u/s. 158BC passed in consequence of the search u/s.132 conducted on 22.01.2002, the Assessing Officer made an addition of Rs. 8,82,18,073/- towards unaccounted investment in the import of machinery. 5. Mr. K.M. Parikh, learned advocate appearing for the revenue submitted that the machinery was imported from Italy and the supplier had issued two invoices for US $ 47 lakhs and US $ 6,75,000 respectively aggregating to US $ 53,75,000 as per pages 8 and 9 of Annexure A/1. He submitted that the value of machinery capitalized in the books of assessee was only US $ 35 lakhs. Thus the investment to the extent of US $ 18,75,000 equivalent to Rs. 8,82,18,750 represented unaccounted investment by the assessee which was added by the Assessing Officer u/s. 69B of the Income Tax Act, 1961 (for short 'the Act') after confronting the assessee with the material found in the course of search and rejecting the assessee's objection in this regard. 5.1 Mr. Parikh submitted that the Tribunal though accepted the findings of the Assessing Officer and the CIT(A) that the assessee had bought the plant and machinery for a consideration of US $ 53.75 lakhs whereas in the book of account of the assessee, it was entered as Rs. 35 lakhs only, the Tribunal reverted to the provisions of Section 69B of the Act and has held that there was no evidence on record to show that the assessee had made the balance payment to the Italian Company; instead the evidence was that the payments were made by NRIS. He submitted that the Tribunal has not denied, rather accepted the fact that as against the cost of machinery US $ 35 lakhs debited in the books of account, the payment received by the Italian supplier was US $ 53,75,000 which was evident from the confirmation, copy of account and other documents. 5.2 Mr. He submitted that the Tribunal has not denied, rather accepted the fact that as against the cost of machinery US $ 35 lakhs debited in the books of account, the payment received by the Italian supplier was US $ 53,75,000 which was evident from the confirmation, copy of account and other documents. 5.2 Mr. Parikh submitted that the Tribunal misinterpreted the provisions of section 69B of the Act and deleted the addition on the ground that section 69B was not attracted because the excess payment was made not by the assessee but by the NRI investor. He submitted that the Tribunal has erred in not appreciating the fact that this payment was made by the NRI investor without any obligation of his own and the obligation was only through the assessee company. He submitted that the Tribunal has not considered the fact that the payment was inevitably made on behalf of the company. He submitted that it is settled law that it is the true nature and quality of the transaction and not the manner of entries made in the books of account that is material for the computation of income under the provisions of the Act. 6. Mr. Davawala, learned advocate appearing on behalf of Mr. Soparkar, learned advocate for the assessee submitted that the Tribunal has not committed any error in passing the impugned order. He submitted that the assessee has only bought the machine for US $ 35 lakhs. All the machines were not shipped to India. Some were shipped to USA. He submitted that the payments were not made by the assessee. He submitted that if the payment is made by a non-resident company outside India to the supplier, it cannot be regarded to be the payment made by the assessee and will not come within the purview of section 69B of the Act. 7. Having heard learned advocates for both the sides we are of the view that the Tribunal was justified in passing the impugned order and deleting the addition made by the Assessing Office towards under statement of cost of imported machinery. 7. Having heard learned advocates for both the sides we are of the view that the Tribunal was justified in passing the impugned order and deleting the addition made by the Assessing Office towards under statement of cost of imported machinery. The Tribunal has considered the provisions of Section 69B of the Act and has come to the conclusion that the onus is on the revenue to show that the assessee has expanded extra amount i.e. the amount invested by the assessee is more than the amount as recorded in the books of account. The Tribunal has concluded that the revenue has failed to discharge the burden of proof that the assessee has invested US $ 53,75,000 in the purchase of plant and machinery. 8. We are in complete agreement with the findings of the Tribunal that the revenue has not been able to bring any evidence or material on record which may prove that the assessee has made the payment amounting to Rs. 5,73,000 to the plant and machinery supplier. Payment made by the third party who is not subject to Indian Income Tax Act cannot be regarded to have been made by the assessee. 9. In that view of the matter, question No. (A) is answered in favour of the assessee and against the revenue. The Tribunal has not committed any error in deleting the addition u/s.69B of Rs. 8,82,18,073/- made towards understatement of the cost of imported machinery. So far as rest of the questions are concerned, no findings are being given on the same. The impugned order passed by the Tribunal is confirmed accordingly. Appeal is accordingly dismissed.