Sh. Mohan Aggarwal, New Delhi V. DCIT, New Delhi

CO 113/DEL/2010

• Counselvise Citation: [2010] 122 COUNSELVISE.COM (IT) 5276 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 22-10-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 08-09-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 07-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SANGEETA GUPTA
• Keywords: Revised return
• Section: 148; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : E NEW DELHI BEFORE SHRI G.E. VEERABHADRAPPA, VICE PRESIDENT A ND SHRI RAJPAL YADAV, JUDICIAL MEMBER I.T.A NO. 1070/DEL/10 ASSTT. YEAR 2005-06 DCIT CENTRAL CIRCLE 25, NEW DELHI. VS. MOHAN AGGARWAL, F-170B, WESTERN AVENUE, SAINIK FARMS, NEW DELHI. (APPELLANT) (RESPONDENT) CO NO. 113/DEL/2010 ASSTT. YEAR 2005-06 MOHAN AGGARWAL DCIT F-170B, WESTERN AVENUE CENTRAL CIRCLE - 25 SAINIK FARMS NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY: SANGEETA GUPTA, CIT DR RESPONDENT BY: SHRI RAJESH MAHNA, ADVOCATE, SHRI MA NU SURI, ADVOCATE ITA NO. 1070/DEL/2010 CO NO. 113/DEL/2010 ASSTT. YEAR 2005-06 2 PER RAJPAL YADAV, JM: THE REVENUE IS IN APPEAL BEFORE US AGAINST THE ORD ER OF LD. CIT(A) DATED 17.12.2009 PASSED FOR ASSTT. YEAR 2005-06. ON RECEIPT OF NOTICE IN THE REVENUES APPEAL ASSESSEE HAS FILED THE CROSS O BJECTION BEARING NO. 113/D/10. 2. THE REVENUE IN ITS SOLITARY SUBSTANTIAL GROUND O F APPEAL HAS PLEADED THAT LD. CIT(A) HAS ERRED IN DELETING THE A DDITION OF ` 54,62,000/- WHICH WAS ADDED BY THE AO ON ACCOUNT OF UNEXPLAINED CASH FOUND IN POSSESSION OF THE ASSESSEE DURING THE COUR SE OF SEARCH. 3. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE IS AN INDIVIDUAL. A SEARCH U/S 132 OF THE INCOME TAX ACT 1961 WAS CARRI ED OUT BY THE REVENUE AT THE RESIDENTIAL PREMISES OF THE DIRECTOR S / PARTNERS AND BUSINESS PREMISES OF COMPANIES / FIRMS OF THE GROUP KNOWN AS CENTURY GROUP OF CASES AT FARIDABAD / DELHI AND KOLKATA. TH E SEARCH WAS CONDUCTED ON 4 TH NOVEMBER, 2004. IT EMERGES OUT FROM THE ASSTT. ORD ER THAT THERE WERE EIGHT CASES AT CENTRAL CIRCLE 25, D ELHI AND 8 CASES AT CENTRAL CIRCLE 12, KOLKATA. THE CASE OF THE PRESENT ASSESSEE WAS CENTRALIZED WITH CENTRAL CIRCLE 25, NEW DELHI BY TH E COMMISSIONER OF INCOME TAX, DELHI VIII VIDE HIS ORDER DATED 23/27 .9.2005. IT WAS FOUND ITA NO. 1070/DEL/2010 CO NO. 113/DEL/2010 ASSTT. YEAR 2005-06 3 THAT ASSESSEE HAS FILED HIS RETURN OF INCOME ON 31 ST JULY, 2005 WITH ITO WARD 1 (3) FARIDABAD DECLARING AN INCOME OF ` 20,57,385/- IN RESPECT OF THE PRESENT ASSTT. YEAR. THIS RETURN WAS PROCESSED U/S 143 (1) BY THE ITO WARD 1 FARIDABAD ON 28 TH SEPTEMBER, 2005. LD. AO HAS OBSERVED THAT THOUGH THE ORDERS U/S 127(2)(A) WAS PASSED BY THE C IT DELHI VIII FOR ASSESSING THE ASSESSEE AT DELHI WITH AN ABUNDANT PR ECAUTION HE APPRISED THE LD. COMMISSIONER DELHI OF THE POSITION THAT ASSESSEE HAS FILED RETURN IN FARIDABAD, COMMISSIONER OF INCOME T AX FARIDABAD WAS REQUESTED TO PASS NECESSARY ORDERS U/S 127. IN THIS WAY ASSESSEES JURISDICTION COMES UNDER CENTRAL CIRCLE 25. FROM PE RUSAL OF THE APPRAISAL REPORT AND SEIZED MATERIAL IT CAME TO THE NOTICE OF AO THAT INCOME EXISTING ` 1 LAC HAS ESCAPED ASSESSMENT THEREFORE HE ISSUED N OTICE U/S 148 OF THE INCOME TAX ACT AND REOPENED ASSESSMENT. IN RESPONSE TO THE NOTICE THE TAX CONSULTANT OF THE ASSESSEE SUBMI TTED THAT THE RETURN FILED ORIGINALLY BE TREATED AS FILED IN RESPONSE TO THIS NOTICE. THE AO HAD ISSUED NOTICE U/S 143(2) AND142 (1) ALONGWITH THE Q UESTIONNAIRE DATED 21.11.2006. HE DIRECTED THE ASSESSEE TO FILE THE DE TAILS PRIOR TO 27.11.2006. 4. THE RESIDENCE OF THE ASSESSEE AT F-170B, WESTERN AVENUE, SAINIK FARMS, NEW DELHI WAS COVERED UNDER SEARCH ACTION. B EFORE START OF THE SEARCH PRELIMINARY STATEMENT OF THE ASSESSEE WAS RE CORDED ON 4 TH ITA NO. 1070/DEL/2010 CO NO. 113/DEL/2010 ASSTT. YEAR 2005-06 4 NOVEMBER, 2004. IN QUESTION NO. 3 ASSESSEE WAS ASKE D ABOUT THE CASH LYING AT THIS RESIDENCE AND ALSO TO EXPLAIN THE SOU RCE. IN RESPONSE TO THIS QUESTION ASSESSEE STATED THAT HE DID NOT REMEMBER T HE CASH LYING AT HOME. WITH REGARD TO SOURCE OF CASH IT WAS SUBMITTE D BY THE ASSESSEE THAT CASH WAS OUT OF WITHDRAWALS FROM BANK AND SAVI NGS ETC. VIDE QUESTION NO. 4 ASSESSEE WAS ASKED WHETHER THE CASH WAS LYING IN HIS ROOM OR ELSEWHERE. IN HIS REPLY THE ASSESSEE STATED THAT IT WAS LYING IN HIS ROOM. VIDE QUESTION 5 ASSESSEE WAS ASKED TO WHE N WAS THE LAST WITHDRAWAL MADE FROM THE BANK. THE ASSESSEE WAS ASK ED WHETHER IT WAS YESTERDAY OR DAY BEFORE YESTERDAY. IN HIS REPLY , THE ASSESSEE STATED THAT HE DID NOT REMEMBER THE EXACT DATES, HOWEVER H E CONFIRMED THAT IT WAS NOT YESTERDAY OR DAY BEFORE YESTERDAY. IN QUES TION 6 THE ASSESSEE WAS ASKED SPECIFICALLY WHETHER THE CASH EXISTED ` 10 LACS OR IT WAS LESS THAN ` 10 LACS. IN HIS REPLY THE ASSESSEE STATED THAT IT SHOULD BE ABOUT ` 10 LACS. THE INVESTIGATION WING CARRIED OUT THE SEA RCH AND FOUND A CASH OF ` 56,84,950/- LYING IN HIS BEDROOM. THE SEARCH PARTY ASKED THE ASSESSEE TO EXPLAIN THE SOURCE OF CASH FOUND AND AL SO REQUIRED TO EXPLAIN THE BIG DIFFERENCE IN THE CASH STATED TO BE AVAILABLE AND ACTUALLY FOUND DURING THE SEARCH. IN HIS REPLY THE ASSESSEE HAS STATED THAT HE HAD NO IDEA OF THE ACTUAL CASH. WITH REGARD TO THE SOURCE OF THE CASH IT WAS CONTENDED THAT IT WAS PERSONAL CASH BALANCE OF HIMSELF AND HIS ITA NO. 1070/DEL/2010 CO NO. 113/DEL/2010 ASSTT. YEAR 2005-06 5 FAMILY MEMBERS AND CASH BALANCES OF VARIOUS COMPANI ES AND SOME AMOUNT RECEIVED FROM FRIENDS FOR SAFE CUSTODY. DURI NG THE COURSE OF ASSTT. PROCEEDING ASSESSEE VIDE LETTER DATED 14.12. 2006 SUBMITTED THAT HE WAS RESIDING IN A JOINT FAMILY. OUT OF THE TOTAL CASH FOUND ` 83,450/- RELATES TO SHRI G.S. AGARWAL ` 1,42,500/- RELATES TO SMT. PRATIBHA AGARWAL AND ` 54,62,000/- RELATABLE TO HIM. WITH REGARD TO ` 54,62,000/- IT WAS SUBMITTED THAT ` 50 LACS BELONGS TO SHRI VIKRAM JHUNJHUNWALA. IN SUPPORT OF THIS CONTENTION ASSESSEE FILED A LETTER DATED 15 TH MAY, 2006 ADDRESSED TO THE DGIT(INVESTIGATION) CHANDIGARH BY SHRI VIKRAM JHUNJHUNWALA. IT WAS ALSO CONTENDED THAT SHRI VIKRA M JHUNJHUNWALA HAS OFFERED THIS AMOUNT FOR TAX AND IT HAS BEEN TAXED I N HIS HAND. THEREFORE IT SHOULD NOT BE TAXED IN THE HANDS OF ASSESSEE. LD . AO DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE ON THE GROUND THAT S HRI VIKRAM JHUNJHUNWALA HAS ORIGINALLY FILED HIS RETURN FOR AS STT. YEAR 2005-06 ON 1 ST DECEMBER, 2005 I.E. AFTER MORE THAN ONE YEAR OF THE SEARCH CONDUCTED AT THE PREMISES OF ASSESSEE. HE HAS NOT DISCLOSED T HIS AMOUNT IN HIS RETURN. IN HIS ORIGINAL RETURN OF INCOME HE HAS DI SCLOSED AN INCOME OF ` 6,91,011/-. THIS LETTER DATED 15 TH MAY, 2006 IS AN AFTER THOUGHT AND ON THE BASIS OF THIS LETTER ASSESSEE CANNOT BE ABSOLVE D FROM HIS LIABILITY TO EXPLAIN THE SOURCE OF THE CASH FOUND AT THE TIME OF SEARCH. THE AO HOWEVER OBSERVED THAT ASSESSEE WAS UNABLE TO GIVE E XPLANATION WITH ITA NO. 1070/DEL/2010 CO NO. 113/DEL/2010 ASSTT. YEAR 2005-06 6 REGARD TO THE BALANCE CASH AND ACCORDINGLY HE MADE AN ADDITION OF ` 54,62,000/-. 5. ON APPEAL ASSESSEE REITERATED HIS CONTENTION AS WERE RAISED BEFORE AO HE FILED A COPY OF THE LETTER DATED 15 TH MAY, 2006 RETURN BY SHRI VIKRAM JHUNJHUNWALA TO DGIT (INVESTIGATION) CH ANDIGARH. HE ALSO PLACED ON RECORD COPY OF THE ASST. ORDER DATED 28.1 2.2006 PASSED IN THE CASE OF SHRI VIKRAM JHUNJHUNWALA WHEREIN HIS INCOM E WAS DETERMINED AT ` 64,45,090/- WHICH INCLUDE THE SUM OF ` 50 LACS FOUND AT THE RESIDENCE OF ASSESSEE. LD. CIT(A) ACCEPTED THE CONT ENTION OF ASSESSEE AND DELETED THE ADDITION ON THE GROUND THAT THE SAM E AMOUNT CANNOT BE TAXED AT TWO PLACES . 6. BEFORE US LD. DR RELIED UPON THE ORDER OF AO WHE REAS LD. COUNSEL FOR THE ASSESSEE FILED WRITTEN SUBMISSIONS AND RELIED UPON THE ORDER OF THE LD. CIT (A). LD. COUNSEL FOR THE ASSES SEE PLACED ON RECORD COPY OF THE ASSTT. ORDER DATED 28.12.2006 PASSED IN THE CASE OF SHRI VIKRAM JHUNJHUNWALA AND THE COPY OF THE LETTER DATE D 15 TH MAY, 2006. IN HIS WRITTEN SUBMISSION HE HAS REITERATED THE STAND OF ASSESSEE BEFORE THE LD. CIT(A). 7. WE HAVE DULY CONSIDERED THE RIVAL CONTENTION AND GONE THROUGH THE RECORD CAREFULLY. IN THE LETTER DATED 15 TH MAY, 2006 SHRI VIKRAM JHUNJHUNWALA HAS SUBMITTED THAT DURING THE COURSE O F SEARCH CARRIED OUT ITA NO. 1070/DEL/2010 CO NO. 113/DEL/2010 ASSTT. YEAR 2005-06 7 AT THE PREMISES OF SHRI MOHAN AGARWAL ON 4 TH NOVEMBER, 2004 A SUM OF ` 50 LACS WAS FOUND AND SEIZED FROM HIS RESIDENTIA L PREMISES. HE SUBMITTED THAT HE HAS LEFT A BAG CONTAINING A CASH OF ` 50 LAC OWNED BY HIM WITHOUT MENTIONING OR DISCLOSING ITS CONTENTS T O SHRI MOHAN AGARWAL BECAUSE HE HAD A CONFIDENCE IN SHRI MOHAN AGARWAL. THE CASH WAS TOBE TAKEN BACK LATER ON BY HIM IN ACCORDANCE WITH HIS REQUIREMENT AND CONVENIENCE. HE OFFERED THIS AMOUNT OF ` 50 LACS AND FILED HIS REVISED RETURN. SECTION 69A OF THE INCOME TAX ACT PROVIDE T HAT WHEREIN ANY FINANCIAL YEAR THE ASSESSEE IS FOUND TO BE THE OWNE R OF ANY MONEY, BULLION,. AND SUCH MONEY . IS NOT RECORDED I N THE BOOKS OF ACCOUNTS, IF ANY MAINTAINED BY HIM FOR ANY SOURC E OF INCOME, AND ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE OF ACQUISITION OF THE MONEY .. OR THE EXPLANA TION OFFERED BY HIM IS NOT IN THE OPINION OF AO, SATISFA CTORY, THE MONEY MAY BE DEEMED TO BE THE INCOME OF THE ASSESSEE FOR SUCH FINANCIAL YEAR. ADMITTEDLY ` 50 LACS WAS FOUND AT THE PREMISES OF THE ASSESSEE. HE IS TO BE PRESUMED TO BE THE OWNER OF THIS ` 50 LACS. HE WAS SUPPOSED TO EXPLAIN THE SOURCE OF ` 50 LACS. THE ASSESSEE IN HIS PRELIMINARY STATEMENT DID NOT DISCLOSED THE AVAILABILITY OF ` 50 LACS IN HIS BEDROOM. IT IS HIGHLY IMPROBABLE THAT SOMEBODY LEFT A HUGE AMOU NT OF ` 50 LAC AND IT WAS LYING IN THE BEDROOM OF THE ASSESSEE WITHOUT HI S KNOWLEDGE. THE ITA NO. 1070/DEL/2010 CO NO. 113/DEL/2010 ASSTT. YEAR 2005-06 8 ALLEGED SHRI VIKRAM JHUNJHUNWALA HAS FILED HIS RETU RN OF INCOME ORIGINALLY ON 1 ST DECEMBER, 2005. A CASH WAS FOUND ON 4 TH NOVEMBER, 2004. HE DID NOT INCLUDED THIS AMOUNT IN HIS RETURN OF INCOME. THERE IS NO WHISPER WITH REGARD TO THIS CASH. THE ASSESSEE H AS FILED HIS RETURN OF INCOME ON 31 ST JULY, 2005. HE HAS ALSO NOT SHOWN THE CASH OF ` 50 LACS RELATABLE TO SHRI VIKRAM JHUNJHANWALA. IT COULD HAV E BEEN SHOWN AS A LIABILITY. ALL OF A SUDDEN IN 2006 SHRI VIKRAM JHUN JHANWALA OWNED UP THE CASH. TO OUR MIND IT IS JUST A AFTER THOUGHT VERSIO N FOR ACCOMMODATING THE ASSESSEE. THE ONLY ARGUMENT ADVANCED BY THE LD. COUNSEL FOR THE ASSESSEE WAS THAT SAME AMOUNT CANNOT BE TAXED TWICE . HE IS RIGHT IN SAYING SO BUT THE TAX HAS TO BE CHARGED FROM THE RI GHT HAND. NO ONE CAN TAKE ON THE LIABILITY OF ANY OTHER INDIVIDUAL. IN T HE PRESENT CASE THE ASSESSEE FAILED TO EXPLAIN THE SOURCE OF ` 50 LACS. THE ALLEGED STORY PUT FORTH BY THE ASSESSEE HAS NO CREDENCE. MERELY SHRI VIKRAM JHUNJHANWALA HAS OFFERED THE AMOUNT FOR TAX WOULD N OT BE SUFFICIENT TO SAY THAT IT BELONGS TO HIM, IT IS THE ASSESSEE WHO HAS TO EXPLAIN THE AVAILABILITY OF ` 50 LAC FROM HIS PREMISES. THE CIRCUMSTANTIAL EVIDE NCE RIGHT FROM HIS PRELIMINARY STATEMENT UPTO ASSESSMEN T STAGE ARE AGAINST THE ASSESSEE. THEREFORE IN OUR OPINION LD. FIRST AP PELLATE AUTHORITY HAS ERRED IN ACCEPTING THE STAND OF ASSESSEE THAT SUM O F ` 50 LACS BELONGED TO SHRI VIKRAM JHUNJHANWALA. ITA NO. 1070/DEL/2010 CO NO. 113/DEL/2010 ASSTT. YEAR 2005-06 9 8. AS FAR AS THE REMAINING AMOUNT OF ` 460,000/- IS CONCERNED WE FIND THAT THE STAND OF THE ASSESSEE IS THAT AN AGRE EMENT TO SELL WAS EXECUTED ON 31 ST OCTOBER, 2004 BETWEEN M/S GAURI SHANKAR AGARWAL (HUF) ITS KARTA AND MS. REKHA KANODIA. AS PER THIS AGREEMENT A SUM OF ` 15 LACS WAS PAID IN CASH AS EARNEST MONEY AGAINST THE SALE OF PROPERTY. OUT OF THIS AMOUNT ` 7,10,000/- WAS INCURRED ON PURCHASING OF JEWELLERY AND BALANCE AMOUNT WAS WITH THE FAMILY ON THE DATE OF SEARCH. THE AO DIRECTED THE ASSESSEE TO PRODUCE MS. REKHA K ANODIA FOR VERIFICATION BUT ASSESSEE FAILED TO PRODUCE. THE AO DID NOT ACCEPT THE CONTENTION OF ASSESSEE IN RESPECT OF THIS AGREEMENT . HOWEVER LD. CIT(A) HAS ACCEPTED THE STORY PUT FORTH BY THE ASSE SSEE. 9. WITH THE ASSISTANCE OF LD. REPRESENTATIVE WE HAV E GONE THROUGH THE RECORD CAREFULLY. DURING THE COURSE OF SEARCH T HE ALLEGED AGREEMENT WAS NOT FOUND. IT EMERGES OUT FROM THE RECORD THAT SUCH AGREEMENT WAS NOT AVAILABLE. THE ASSESSEE HAS NOT PUT FORTH THIS VERSION IN HIS STATEMENT. IT FAILED TO FILE CONFIRMATION FROM THE ALLEGED PURCHASER OR FAIL TO PRODUCE THE SALE DEED IF ANY EXECUTED IN FAVOUR OF MISS REKHA KANODIA. IN THE ABSENCE OF ANY SUPPORTING MATERIAL IT IS DIFFICULT TO ACCEPT THE VERSION PUT FORTH BY THE ASSESSEE. LD. CIT (A) HAS ACCEPTED THE SUBMISSION OF ASSESSEE WITHOUT ANY BASIS. THEREFORE , WE REVERSE THIS FINDING ALSO. IN THE RESULT WE ALLOW THE APPEAL OF REVENUE AND CONFIRM THE ITA NO. 1070/DEL/2010 CO NO. 113/DEL/2010 ASSTT. YEAR 2005-06 10 ADDITION OF ` 54,62,000/- IN THE HANDS OF ASSESSEE. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN CASE THE AMOUNT OF ` 50 LAC IS ADDED IN THE HANDS OF ASSESSEE THEN CORRESPO NDINGLY IT SHOULD BE DELETED FROM THE HANDS OF SHRI VIKRAM JHUNJHUNWALA. BEFORE US THE CASE OF SHRI VIKRAM JHUNJHUNWALA IS NOT AVAILABLE. IT IS NOT ADVISABLE ON OUR PART TO GIVE ANY DIRECTION IN THE CASE OF THIRD PER SON WITHOUT GIVING AN OPPORTUNITY OF HEARING TO HIM. IT IS FOR THE ASSESS EE OR SHRI VIKRAM JHUNJHANWALA TO TAKE RECOURSE AVAILABLE UNDER THE L AW. BUT AT OUR END NO DIRECTION IS REQUIRED. IN THE RESULT WE ALLOW T HE APPEAL AND SET ASIDE THE ORDER OF LD. CIT(A) WE RESTORE THE ADDITION OF ` 54,62,000/-. CO NO. 113/DEL/2010 10. IN THE CROSS OBJECTION THE ASSESSEE HAS PLEADED THAT LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 35,000/ -. THE BRIEF FACTS OF THE CASE ARE THAT DURING THE COURSE OF SEARCH A PAPER E XHIBITING THE BOOKING FORM OF M/S. PARTY PLANNERS IN THE NAME OF SHRI MAN OJ AGARWAL / MRS. PRATIBHA AGARWAL, F-170 B, WESTERN AVENUE, SAINIK F ARM IN RESPECT OF BIRTHDAY PARTY BOOKING ON 22 ND AUGUST, 2004 FOR A TOTAL EXPENDITURE OF RS. 35,000/- WAS FOUND. THIS DOCUMENT WAS INVENTORI SED AS PAGE NO. 4 OF ANNEXURE 5. THE AO HAS DIRECTED THE ASSESSEE TO EXPLAIN THE SOURCE ITA NO. 1070/DEL/2010 CO NO. 113/DEL/2010 ASSTT. YEAR 2005-06 11 OF EXPENDITURE FOR THIS PARTY. IN RESPONSE TO THE Q UERY OF AO IT WAS CONTENDED BY THE ASSESSEE THAT THIS DOCUMENT REPRES ENTS THE BOOKING FORM OF M/S. PARTY PLANNERS. THE FAMILY OF THE ASSE SSEE WAS PLANNING TO ORGANISE A PARTY TO CELEBRATE THE BIRTHDAY AND THER EFORE, GAVE AN ORDER TO M/S. PARTY PLANNERS. BUT LATER ON M/S. PARTY PL ANNERS BACKED OUT TO EXECUTE THE CONTRACT BECAUSE THE ENTRY OF TRUCKS CA RRYING TENTS DECORATION AND LIGHTING ETC ITEM WAS NOT PERMITTED IN THE SAINIK FARM. THE POLICE AS WELL AS MCD HAD ESTABLISHED A CHECKPO ST AT THE ENTRY GATES PROHIBITING ENTRY OF TRUCKS PARTICULARLY WITH AFORESAID MATERIAL. IN BRIEF, THE STAND OF THE ASSESSEE IS THAT NO PARTY W AS ORGANISED. LD. AO HAS REJECTED THIS CONTENTION OF ASSESSEE ON THE GRO UND THAT IT IS NO WHERE MENTION IN BOOKING FORM THAT THESE ITEMS WILL BE CARRIED IN A TRUCK. ACCORDING TO THE AO IT WAS A SMALL FUNCTION WHICH W OULD NOT REQUIRE BIG TENTS. THE ASSESSEE IS UNNECESSARILY TRYING TO LINK THE EXPENDITURE WITH THE PROHIBITION OF PLYING THE TRUCKS IN THAT AREA. THE AO MADE AN ADDITION OF ` 35,000/-. 11. THE APPEAL TO THE LD. CIT(A) DID NOT BRING ANY RELIEF. 12. WITH THE ASSISTANCE OF LD. REPRESENTATIVE WE HA VE GONE THROUGH THE RECORD CAREFULLY. NO DOUBT A DOCUMENT EXHIBITIN G THE HOLDING A BIRTHDAY PARTY WAS FOUND. BUT THERE WAS NO CONCLUSI VE EVIDENCE FOUND AT ITA NO. 1070/DEL/2010 CO NO. 113/DEL/2010 ASSTT. YEAR 2005-06 12 THE TIME OF SEARCH INDICATING THAT PARTY HAS TAKEN PLACE. THERE COULD BE PHOTOGRAPHS, VIDEO FILMS ETC. IF THE PARTY TAKEN PL ACE. THE STAND OF THE ASSESSEE IS THAT IT WAS ONLY A BOOKING BUT ULTIMATE LY NO PARTY WAS HELD. ON THE BASIS OF THIS BOOKING FORM IT IS DIFFICULT T O CONCLUSIVELY SAY THAT ASSESSEE HAS ORGANISED A PARTY AND INCURRED UNEXPLA INED EXPENSES. THE AO COULD HAVE CALLED FOR REPRESENTATIVE OF M/S. PARTY PLANNERS AND COLLECT INFORMATION WHETHER THEY HAVE EXTENDED THEI R SERVICES OR NOT. BUT NO SUCH STEPS WERE TAKEN. THUS ONLY ON THE BASIS OF THIS BOOKING FORM IN THE PRESENT CASE ADDITION IS NOT SUSTAINABLE. ACCOR DINGLY WE ALLOW THE CROSS OBJECTION FILED BY THE ASSESSEE AND DELETE TH E ADDITION OF ` 35,000/-. 13. IN THE RESULT, APPEAL FILED BY THE REVENUE AS W ELL AS CROSS OBJECTION FILED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22.10.2010. SD/- [G.E.VEERABHADRAPPA] [RAJPAL YADAV] VICE PRESIDENT JUDICIAL MEMBER DATED: 22.10.2010 VEENA ITA NO. 1070/DEL/2010 CO NO. 113/DEL/2010 ASSTT. YEAR 2005-06 13 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT