Sh. Baldev Raj, Ludhiana V. Assistant Commissioner of Income tax, Jalandhar

CO 27/ASR/2005

• Counselvise Citation: [2011] 122 COUNSELVISE.COM (IT) 6103 (ITAT-AMRITSAR)
• Duration Of Justice: 5 year(s) 8 month(s) 9 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 09-06-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 14-12-2010
• Assessment Year: 1995-1996
• Appeal Filed On: 30-09-2005
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: TARSEM BHARTI
• Assessee Lawyers: BHAGAT ITP
• Keywords: Unexplained investment
• Section: 143(3); 142(1); 131; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.L. KARWA, VICE PRESIDENT AND SH. MEHAR SINGH, ACCOUNTANT MEMBER I.T.A. NO.44(ASR)/2003 ASSESSMENT YEAR:1995-96 PAN : ASSTT. COMMR. OF INCOME-TAX, VS. SH. BALDEV RAJ, RANGE-IV, 1153, KUCHA NO.16, FIELD GANJ, JALANDHAR. LUDHIANA. (APPELLANT) (RESPONDENT) C.O. NO.27(ASR)/2005 (ARISING OUT OF ITA NO.44(ASR)/2003) ASSESSMENT YEAR: 1995-96 SH. BALDEV RAJ, VS. ASSTT. COMMR. OF INCOME-TAX, LUDHIANA. RANGE-IV, JALANDHAR. (APPELLANT) (RESPONDENT) DEPARTMENT BY: SH. TARSEM BHARTI, DR ASSESSEE BY: SH. M.R. BHAGAT, ITP ORDER PER MEHAR SINGH, AM, THE APPEAL FILED BY THE REVENUE AND C.O. BY THE AS SESSEE ARE DIRECTED AGAINST THE ORDER OF THE CIT(A)-1, LUDHIANA, DATED 1.10.2002 PASSED UNDER SECTION 250(6) OF THE INCOME-TAX ACT, 1961 ( HEREIN AFTER REFERRED TO IN SHORT THE ACT), FOR THE ASSESSMENT YEAR 1995-96. 2 2. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPE AL: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.1,31,800/- MADE BY THE A.O. ON ACCOUNT OF UNEXPLAINED CASH FOUND AT THE TIME OF SEARCH, ESPEC IALLY IN VIEW OF THE DIFFERENT STANDS TAKEN BY THE ASSESS EE THRICE AND ALSO BECAUSE THE CONCERN STYLED AS M/S. N.S. SIDHU & CO. ( WHICH WAS CLAIMED TO BE THE OWNER OF CASH OF RS.82,000) WAS BENAMIDAR OF THE ASSESSEE. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.35,000/- MADE BY THE A.O. IN THE HANDS OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED INVESTMENT IN FD RS. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.90,000 MADE BY THE A.O. ON ACCOUNT OF UNEXPLAINE D INVESTMENT IN JEWELLERY. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.3,00,000/- MADE BY THE A.O. ON ACCOUNT OF UNDISCLOSED/UNEXPLAINED DEPOSITS IN THE BANK. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.1,20,000 MADE BY THE A.O. IN THE HANDS OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED INVESTMENT MADE IN THE PURCHASE OF SHOP NO.47 IN A.C. MARKET, LUDHIANA IN THE NAME OF HIS SONS WHO WERE FOUND TO BE BENAMIDAR OF THE ASSESSE AND HAD NO INDEPENDENT SOURCE OF INCOME OF THEIR OWN. 6. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.10,70,000/- MADE BY THE A.O. ON ACCOUNT OF INVESTMENT AND PROFIT IN BENAMI CONCERN M/S. N.S. S IDHU & CO. 3 7. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.1,58,638/- MADE BY THE A.O. IN THE HANDS OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED ENTRIES IN THE N AMES OF N.S. SIDHU, H.S. SIDHU AND K.S. SIDHU APPEARING AT PAGE 70 OF THE LEDGER NO.4 IMPOUNDED U/S 131(3) OF THE I.T.ACT. 8. THAT IT IS PRAYED THAT ORDER OF THE LD. CIT(A) BE S ET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 9. THAT THE APPELLANT REQUESTS FOR LEAVE TO ADD OR AME ND OR ALTER THE GROUNDS OF APPEAL BEFORE THE APPEAL IS HE ARD AND DISPOSED OFF. 3. IN THE FIRST GROUND OF APPEAL, THE REVENUE CONTE NDED THAT THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.1,31,80 0/- MADE BY THE AO ON ACCOUNT OF UNEXPLAINED CASH FOUND AT THE TIME OF SE ARCH, ESPECIALLY IN VIEW OF THE DIFFERENT STANDS TAKEN BY THE ASSESSEE THRIC E AND ALSO BECAUSE THE CONCERN STYLED AS M/S. N.S. SIDHU & CO., ( WHICH W AS CLAIMED TO BE THE OWNER OF CSH OF RS.82,000/) WAS BENAMIDAR OF THE AS SESSEE. THE BRIEF FACTS AS CULLED OUT FROM THE RECORDS ARE THAT DURING THE COURSE OF SEARCH CASH OF RS.1,31,800/- WAS FOUND OUT OF WHICH RS.1,20,000/- WAS SEIZED AND THE ASSESSEE WAS ASKED TO EXPLAIN THE NATURE AND SOURCE OF CASH. THE ASSESSEE EXPLAINED THAT PART OF THE CASH BELONGED TO DIFFERE NT MEMBERS AND RS.82,000/- BELONGED TO DIFFERENT VENDS OF M/S. N.S . SIDHU & CO. WHERE THE ASSESSEE WAS EMPLOYED AND WHERE HE HAD TO COLLECT C ASH FROM THE VENDS FOR DEPOSITING THE SAME AS PER THE DIRECTIONS OF THE EM PLOYERS. HOWEVER, THE ASSESSEE VIDE AFFIDAVIT DATED 12.8.1998 EXPLAINED T HE CASH FOUND AS UNDER: (I) CASH OF M/S. N.S. SIDHU & CO. RS.82,000/- (II) CASH BELONGING TO SMT. VIRAN BAI MOTHER , VANTI RANI, WIFE OF THE ASSESSEE, SATYA RANI W/O SUNDER 4 LAL, RITU BALA WIFE OF TILAK RAJ , SUNDER LAL, TILAK RAJ, HANS RAJ, HANS RAJ AND THE APPELLANT. RS.49,800/- TOTAL : RS.1,31,800/- FURTHER, IT WAS STATED THAT THE AMOUNT WAS BEING DE DUCTED FROM THE SALARY OF THE ASSESSEE BY THE EMPLOYER M/S. N.S. SIDHU & CO. THE BALANCE CASH RS.49,800/- IS STATED TO BE BELONGING TO DIFFERENT MEMBERS OF THE FAMILIES OF THE ASSESSEE AND HIS BROTHERS. NOT BEING SATISFIED WITH THE EXPLANATION OF THE ASSESSEE, THE A.O. MADE AN ADDITION OF RS.1,31,800/ -. ON APPEAL, THE CIT(A), DELETED THE SAID ADDITION. AGGRIEVED WITH T HE ORDER OF THE CIT(A), THE REVENUE IS IN APPEAL BEFORE US. 4. THE LD. DR, STRONGLY RELIED ON THE ORDER OF TH E ASSESSING OFFICER. 5. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER H AND, RELIED ON THE ORDER OF THE CIT(A). 6. WE HAVE CAREFULLY PERUSED THE FACTS OF THE CASE, SUBMISSIONS MADE BY THE RIVAL PARTIES, INCLUDING THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW. A CAREFUL PERUSAL OF THE IMPUGNED APPELLATE ORDER DAT ED 1.10.2002 CLEARLY REVEALS THAT THE LD. CIT(A), HAS DISCUSSED THE ISSU E IN QUESTION IN GREATER DETAIL AFTER APPRECIATION OF THE EVIDENCES AND MATE RIAL ON RECORDS AS ALSO THE FACTUAL POSITION OF THE CASE. IT IS IMPERATIVE AND ESSENTIAL TO REPRODUCE THE FINDINGS OF THE CIT(A) ON THE ISSUE IN DISPUTE HERE UNDER: 2.3 I HAVE CONSIDERED THE ARGUMENTS AND THE FACTS OF THE CASE. IT IS A FACT THAT THE APPELLANT HAD RETRACTED FROM HIS EARL IER STATEMENT RECORDED DURING THE COURSE OF THE SEARCH PROCEEDING S. HOWEVER, IT IS SEEN THAT THE A.O. DID NOT MAKE ANY ENQUIRY F ROM THE FIRM, M/S. N.S. SIDHU & CO. LIQUOR CONTRACTORS, LUDHIANA, IN ORDER TO VERIFY AS TO WHETHER THE APPELLANT WAS ACTUALLY ENG AGED IN 5 COLLECTING CASH ON THEIR BEHALF OR NOT FROM THE VAR IOUS LIQUOR VENDS AND THE FACT THAT RS.82,000/- BELONGING TO TH EM WAS WITH HIM; AND WHETHER HE WAS EMPLOYED WITH THE FIRM DURI NG THAT PERIOD. IN VIEW OF THE FACT THAT THE APPELLANT HAS FILED AN AFFIDAVIT THAT THE CASH OF RS.82,000/- BELONGED TO M/S. N.S. SIDHU & CO., AND THE A.O. HAS NOT MADE ANY ENQUIRY TO REBUT ITS CONTENTS BY BRINGING ON RECORD ANY OTHER EVIDENCE, THE ASSERTIONS OF THE APPELLANT HAVE O BE ACCEPTED IN V IEW OF THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE O F MEHTA PARIKH & CO. VS. CIT (1956) 30 ITR 183 WHEREIN IT W AS OBSERVED: IF AN AFFIDAVIT IS FILED BY ASSESSEE AND IS NEIT HER CROSS EXAMINED ON THAT POINT NOR HE WAS CALLED UPON BY TH E DEPARTMENT TO PRODUCE ANY EVIDENCE THE ASSESSEE MAY ASSUME THAT INCOME TAX AUTHORITIES ARE SATISFIED WITH THE AFFIDAVIT AS SUFFICIENT PROOF AND THE POINT IN QUESTION. 2.4. I HAVE CONSIDER THE RIVAL SUBMISSIONS. HAVING DONE SO, I HOLD THAT THE A.O. HAD ACQUIESCED IN THE CONTENTS OF THE AFFIDAVIT OF THE APPELLANT. ACCORDINGLY, THE APPELLANTS PLEA TH AT CASH OF RS.82,000/- BELONGED TO THE FIRM M/S. N.S. SIDHU, L UDHIANA, IS ACCEPTED. AS REGARDS THE BALANCE CASH OF RS.49,800 /-, THE SUBMISSION MADE BY THE LD. COUNSELS THAT IT PERTAI NED TO THE LADIES AND OTHER MEMBERS LIVING IN THAT HOUSE APPEA RS TO BE PLAUSIBLE AND IS ACCEPTED. ACCORDINGLY, THE ADDITIO N OF RS.1,31,800/- IS ORDERED TO BE DELETED HEREBY. 6.1. IN VIEW OF THE ABOVE, WE DO NOT FIND ANY INFIR MITY IN THE FINDINGS OF THE CIT(A), AS THE SAME HAVE BEEN ARRIVED AFTER PRO PER APPRECIATION OF THE LEGAL AND FACTUAL POSITION OF THE CASE. ACCORDINGLY , THE SAME ARE UPHELD AND THIS GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 7. IN THE NEXT GROUND OF APPEAL, THE REVENUE CONTEN DED THAT THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.35,000/ - IN THE HANDS OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED INVESTMENT IN FD RS. THE BRIEF FACTS OF THE CASE ARE THAT DURING THE COURSE OF SEARCH AN FD R FOR RS.35,000/- DATED 6 14.7.1994 WAS FOUND AND SEIZED FROM THE RESIDENCE OF THE ASSESSEE. ON QUERY, THE ASSESSEE EXPLAINED THAT THE SOURCE OF DE POSIT OF THIS FDR IS FROM SALE PROCEEDS OF PORTION OF SHOP IN RAMA MANDI. HOWEVER, NOT SATISFIED WITH THE EXPLANATION OF THE ASSESSEE, THE A.O. MADE AN ADDITION OF RS.35,000/- BY TREATING THE SAME AS INCOME OF THE A SSESSEE FROM UNDISCLOSED SOURCES. 7.1. THE LD. DR RELIED ON THE ORDER OF THE ASSESS ING OFFICER. 7.2. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, RELIED ON THE ORDER OF THE CIT(A). 7.3. WE HAVE CAREFULLY PERUSED AND CONSIDERED THE RIVAL SUBMISSIONS, RELEVANT RECORDS INCLUDING THE IMPUGNED ORDERS OF T HE AUTHORITIES BELOW. AFTER PERUSAL OF THE ORDER OF THE CIT(A), WE FIND T HAT HE HAS PASSED A WELL REASONED ORDER, WHICH REQUIRES NO INTERFERENCE. THE RELEVANT AND OPERATIVE PART OF THE FINDINGS OF THE CIT(A) IS REPRODUCED HE REUNDER: 3.1. IT WAS ARGUED BY THE LD. COUNSELS THAT THE AP PELLANT HAD ACQUIRED THE FDR OF RS.35,000/- OUT OF THE SALE PRO CEEDS OF A SHOP AT RAMA MANDI, JALANDHAR WHICH HE HAD PURCHASED IN THE YEAR 1979. HALF PORTION OF THIS SHOP IS STATED TO HAVE BEEN SO LD ON 7.6.1991 FOR RS.20,000/-, AND THE REMAINING HALF PORTION WAS SOL D ON 24.8.1992 FOR RS.25,000/- AND THE SALE PROCEEDS WERE DEPOSITED IN SAVING BANK A/C NO.67625, PUNJAB NATIONAL BANK, ON 8.4.1993. THE AP PELLANTS PLEA REGARDING THE FDR OF RS.35,000/- APPEARS TO BE PLAU SIBLE AND ACCEPTABLE AS THE AO DOES NOT HAVE ANY MATERIAL TO THE CONTRARY TO INDICATE THAT THE AMOUNT WAS INDEED UTILIZED SOMEWH ERE ELSE. ACCORDINGLY, I FIND NO JUSTIFICATION IN SUSTAINING THIS ADDITION. THE SAME IS DELETED HEREBY. 7 IN VIEW OF THE ABOVE, WE DO NOT FIND ANY JUSTIFICAT ION TO INTERFERE WITH THE FINDINGS OF THE LD. CIT(A) AND THE SAME ARE UPHELD. ACCORDINGLY, THIS GROUND OF APPEAL IS DISMISSED. 8. THE NEXT GROUND OF APPEAL RELATES TO THE DELETIO N OF ADDITION OF RS.90,000/- BY THE CIT(A) ON ACCOUNT OF UNEXPLAINE D JEWELLERY. 8.1. HAVING HEARD BOTH THE PARTIES, WE FIND THAT TH IS ISSUE HAS BEEN DISCUSSED IN DETAIL BY THE LD. CIT(A) IN PARA 4 OF HIS ORDER. WE ARE IN COMPLETE AGREEMENT WITH THE FINDINGS OF THE CIT(A), WHICH REQUIRES NO INTERFERENCE. THE RELEVANT AND OPERATIVE PARTY OF T HE FINDINGS OF THE CIT(A) IS REPRODUCED HEREUNDER: 4.2. I HAVE CONSIDERED THIS MATTER CAREFULLY. TAKI NG INTO CONSIDERATION THE FULL FACTS OF THE CASE, THE JEWEL LERY WEIGHING 585 GMS FOUND AT THE TIME OF SEARCH ( AND NOT SEIZED AT THE TIME OF SEARCH) IS CONSIDERED TO BE EXPLAINED AS THE ASSESSING OFFI CER HAS NOT BROUGHT OUT ANY MATERIAL ON RECORD ON THE BASIS OF WHICH TH E JEWELLERY WEIGHING 185 GMS COULD BE TREATED AS UNEXPLAINED IN VESTMENT. THE ADDITION OF RS.90,000/- IS THEREFORE, DELETED. 8.2 IN VIEW OF THE ABOVE, WE DO NOT FIND ANY INFIR MITY IN THE FINDINGS OF THE CIT(A), AS THE SAME HAVE BEEN ARRIV ED AFTER PROPER APPRECIATION OF THE LEGAL AND FACTUAL POSITION OF T HE CASE. ACCORDINGLY, THE SAME ARE UPHELD AND THIS GROUND OF APPEAL OF THE R EVENUE IS DISMISSED. 9. IN GROUND NO.4, THE REVENUE CONTENDED THAT THE L D. CIT(A) ERRED IN DELETING THE ADDITION OF RS.3,00,000/-, MADE BY THE A.O., ON ACCOUNT OF UNDISCLOSED/UNEXPLAINED DEPOSITS IN THE BANK. THE B RIEF FACTS OF THE CASE ARE 8 THAT M/S. SUNDER LAL & CO. HAD DEPOSITED A SUM OF R S.3,00,000/-, IN THEIR ACCOUNT NO.15964 IN PNB CHAURA BAZAR, LUDHIANA, ON 25.8.1994. SH. SUNDER LAL, WHO HAD INVESTED RS.7,40,000/-, IN THE FIRM M/S. DHARAMBIR BALDEV KRISHAN WITHDREW RS.2,75,000 ON 23.8.1994 AN D RS.1,50,000/- ON 4 & 5.6.1994. AFTER DEPOSITING THE AMOUNTS IN THAT AC COUNT, PAYMENTS WERE MADE TO DIFFERENT CREDITORS. THE LD. COUNSEL FOR TH E ASSESSEE PLEADED BEFORE THE A.O. THAT ALL THESE FACTS COULD BE PROVED WITH THE HELP OF BANK ACCOUNT, BALANCE SHEET OF M/S. SUNDER LAL AND CO. AND A COPY OF ACCOUNT IN THE BOOKS OF M/S. DHARAMBIR BALDEV KRISHAN. THE A.O. BEING NO T SATISFIED WITH THE EXPLANATION OF THE ASSESSEE MADE THE ABOVE ADDITION ON ACCOUNT OF UNDISCLOSED DEPOSITS. ON APPEAL, THE LD. CIT(A), DE LETED THE ADDITION. NOW THE REVENUE IS IN APPEAL BEFORE US. 9.1. THE LD. DR, RELIED ON THE ORDER OF THE ASSES SING OFFICER. 9.2. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASS ESSEE, RELIED ON THE ORDER OF THE CIT(A). 9.3. WE HAVE CAREFULLY PERUSED THE FACTS OF THE CAS E, SUBMISSIONS MADE BY THE RIVAL PARTIES, INCLUDING THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW. A CAREFUL PERUSAL OF THE IMPUGNED APPELLATE ORDER DAT ED 1.10.2002 CLEARLY REVEALS THAT THE LD. CIT(A), HAS DISCUSSED THE ISSU E IN QUESTION AT LENGTH AFTER APPRECIATION OF THE EVIDENCES AND MATERIAL ON RECORDS AS ALSO THE FACTUAL POSITION OF THE CASE. IT IS IMPERATIVE AND ESSENTIA L TO REPRODUCE THE FINDINGS OF THE CIT(A) ON THE ISSUE IN DISPUTE HEREUNDER: 5.2. I HAVE CONSIDERED THE RIVAL SUBMISSIONS IN TH E MATTER. TAKING INTO CONSIDERATION THAT THE BANK ACCOUNT BELONGED T O THE FIRM M/S. SUNDER LAL &CO. AND SH. SUNDER LAL HAD WITHDRAWN RS .2,75,000 ON 9 23.8.94, THE APPELLANT COULD NOT BE CALLED UPON TO EXPLAIN THE SAID DEPOSITS. THE ADDITION OF RS.3,00,000/- IS, THEREFO RE, DELETED. 9.4. IN VIEW OF THE ABOVE, WE DO NOT FIND ANY INFI RMITY IN THE FINDINGS OF THE CIT(A), AS THE SAME HAVE BEEN ARRIV ED AFTER PROPER APPRECIATION OF THE LEGAL AND FACTUAL POSITION OF T HE CASE. ACCORDINGLY, THE SAME ARE UPHELD AND THIS GROUND OF APPEAL OF THE R EVENUE IS DISMISSED. 10. IN THE FIFTH GROUND OF APPEAL, THE REVENUE CONT ENDED THAT THE CIT(A) ERRED IN DELETING THE ADDITION OF RS.1,20,000/- MAD E BY THE A.O. IN THE HANDS OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED INVESTME NT MADE IN THE PURCHASE OF SHOP NO.47 IN AC MARKET, LUDHIANA. 10.1. SIMILAR ISSUE, WE HAVE ALREADY DECIDED VIDE O UR ORDER OF EVEN DATE, IN PARA 10 & 18.1, WHILE DECIDING THE APPEAL IN THE CA SE OF ACIT, RANGE IV, JALANDHAR VS. SH.DHARAMVIR, LUDHIANA, IN ITA NOS.46 & 47(ASR)/2007 FOR THE ASSESSMENT YEARS 1994-95 & 95-96 AND FOLLOWING THE SAME VIEW, WE DISMISS THIS GROUND OF APPEAL OF THE REVENUE . FOR THE SAKE OF CONVENIENCE, WE REPRODUCE HEREUNDER THE FINDINGS GIVEN IN THE AF OREMENTIONED ORDER. 10 HAVING HEARD BOTH THE PARTIES, WE FIND THAT THE ISSUE IN DISPUTE HAS ALREADY BEEN DECIDED BY THE ITAT, AMRITSAR BENC H, VIDE ITS ORDER DATED 27 TH NOV., 2008, IN THE CASE OF ACIT RANGE-IV, JALANDHA R VS. SH. BALDEV RAJ, JALANDHAR, PASSED IN ITA NOS. 42 & 43(ASR)2003 FOR THE ASSESSMENT YEARS 1993-94 & 1994-95. THE RELEVAN T FINDINGS GIVEN BY THE ITAT ARE REPRODUCED HEREUNDER: 16.1. HAVING HEARD BOTH THE PARTIES, WE FIND THAT THIS INVESTMENT WAS MADE BY THE ASSESSEE IN THE NAMES O F SH. SAT PAL, SMT. SATYA DEVI WIFE OF SH. SUNDER LAL, SH. HANS RAJ & PAWAN KUMAR. THE AO HAS TAKEN PROPORTIONATE INVESTM ENT MADE IN THE NAMES OF TWO SONS OF THE ASSESSEE AT RS . 2,16,550/-. 10 THE CONTENTION OF THE ASSESSEE IS THAT THE AO OVER- LOOKED THE SALE-DEED AND TAKEN THE VALUATION AS PER SEIZED DOC UMENT PROCURED FROM THE RESIDENCE OF THE ASSESSEES BROTH ER. THE AO IN THIS CASE HAS NOT EXAMINED THE SELLER FROM WHOM THE ASSESSEE HAS PURCHASED THE PROPERTY. THE ADDITION HAS BEEN M ADE ON THE BASIS OF SURMISES AND CONJECTURES, WHICH IS NOT PR OPER. HENCE, IN OUR OPINION, THE LEARNED CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION. THE FINDINGS GIVEN BY THE LD. CIT(A) ARE AS UNDER: 7.1. THE LD. COUNSELS HAVE BEEN OPPOSED THE SAID ADDITION BY CONTENDING THAT THE SON OF THE APPELLAN T HAD PURCHASED ONE SHOP AT AC MARKET, GHUMAR MANDI, LUDHIANA, AND THE PRICE OF THE SHOP MENTIONED IN TH E REGISTERED DEED WAS RS.1,80,000/- ONLY. INSTEAD OF RELYING ON THE PRICE DECLARED IN THE REGISTERED DEED AS CO RRECT, THE AO CONSIDERED SOME FIGURES MENTIONED IN THE LOO SE PAPERS SEIZED FROM THE RESIDENCE OF THE BROTHER OF THE APPELLANT, TO HOLD THAT THE SHOP WAS PURCHASED FOR A SUM OF RS.6,49,000/-.THE LD. COUNSELS HAVE CITED THE JUDGMENT OF THE HONBLE ITAT, CHANDIGARH BENCH, CHANDIGARH, IN THE CASE OF BALDEV KRISHAN KAPOOR VS . ACIT (1999) 69 ITD 27, WHERE IT WAS HELD THAT THE P RICE RECORDED IN THE SALE DEED IS PRESUMED TO BE THE COR RECT PRICE AS THE SALE DEED WAS DULY REGISTERED, AND THE RE IS A PRESUMPTION OF CORRECTNESS OF THE PRICE STATED THE REIN. FURTHER, RELIANCE WAS PLACED ON THE RATIO OF HONBL E PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. SATINDER KUMAR (2001) 250 ITR 484, WHEREIN IT HAS W AS HELD, NO MATERIAL EVIDENCE TO ESTABLISH THAT ASSES SEE MADE INVESTMENT OVER THE RECORDED IN SALE DEED WAS FOUND AND DELETED THE ADDITION. I HAVE EXAMINED THE MATTER CAREFULLY. I FIND THAT NO PROPER ENQUIRIEIS WERE MADE FROM THE SELLER OF THE SHOPS OR FROM OTHER PER SONS WHO ALSO PURCHASED THE SHOPS IN THE MARKET. EVEN T HE PRESUMPTION U/S 132(4A) IS NOT APPLICABLE IN THIS CASE AS THE LOOSE PAPER WAS NOT SEIZED FROM THE RESIDENCE OF THE APPELLANT. I AM, THEREFORE, INCLINED TO AGREE WIT H THE SUBMISSIONS OF THE LD. COUNSELS THAT THERE WAS NO CLINCHING EVIDENCE WITH A.O. FOR MAKING THE SAID 11 ADDITION. I, THEREFORE, DIRECT THE AO TO DELETE THI S ADDITION. IN VIEW OF THE ABOVE, WE CONFIRM THE ORDER OF THE L D. CIT(A). AND THIS GROUND OF APPEAL OF THE REVENUE IS DISMISS ED. 11. THE NEXT GROUND OF APPEAL RELATES TO DELETION O F ADDITION OF RS.10,70,000/- BY THE CIT(A) ON ACCOUNT OF INVESTME NT AND PROFIT IN BENAMI CONCERN M/S. N.S. SIDHU & CO. 11.1. SIMILAR ISSUE, WE HAVE ALREADY DECIDED VIDE O UR ORDER OF EVEN DATE, IN PARA 19.3 AND 19.4, WHILE DECIDING THE APPEAL IN TH E CASE OF ACIT, RANGE IV, JALANDHAR VS. SH.DHARAMVIR, LUDHIANA, IN ITA NO S.46 & 47(ASR)/2007 FOR THE ASSESSMENT YEARS 1994-95 & 95-96 AND FOLLOW ING THE SAME VIEW, WE DISMISS THIS GROUND OF APPEAL OF THE REVENUE . FOR THE SAKE OF CONVENIENCE, THE RELEVANT FINDINGS GIVEN IN THE AFORESAID ORDER ARE REPRODUCED HEREUNDER: 19.3. WE HAVE HEARD BOTH THE PARTIES AND CONSIDERE D THE RIVAL SUBMISSIONS WITH REFERENCE TO FACTS, EVIDENCE AND M ATERIAL PLACED ON RECORD. WE HAVE ALSO GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. FROM THE PERUSAL OF THE ORDER OF THE CIT(A), WE FIN D THAT HE HAS PASSED A DETAILED AND REASONED ORDER ON THE ISSUE I N DISPUTE, WHICH NEEDS NO INTERFERENCE. THE RELEVANT PART OF THE FIN DINGS OF THE CIT(A), IS REPRODUCED HEREUNDER: 6.4. I HAVE EXAMINED THE RIVAL SUBMISSIONS IN THE MATTER, AND I HAVE ALSO GONE THROUGH THE PHOTOCOPIES OF THE EXCIS E LICENSES PRODUCED BEFORE ME. IT APPEARS THAT THE A.O. HAS NO T APPRECIATED THE FACTS OF THE CASE CORRECTLY. NO STE PS WERE TAKEN BY HIM TO MAKE ENQUIRIES FROM THE EXCISE DEPARTMENT . HE DID NOT MAKE ANY ENQUIRY FROM THE RESIDENCES OF THE PAR TNERS WHO ARE STATED TO BE LIVING IN MODEL GRAM, LUDHIANA, AN D WERE STATED TO BE CARRYING ON LIQUOR BUSINESS IN THE SUB SEQUENT YEARS, AND ALSO IN THE CURRENT YEAR I.E. 2002-03. THE A.O. HAS NOT MADE ANY EFFORT TO REBUT OR DISPROVE THE CONTENTS OF TH E AFFIDAVIT OF 12 ONE OF THE PARTNERS OF M/S. N.S. SIDHU & CO.DEPOSIN G THAT THE APPELLANT AND HIS BROHER SH. BALDEV RAJ WERE THEIR EMPLOYEES. IN VIEW OF THE FACTS OF THE CASE AS ENUMERATED ABOV E, I AM CONVINCED THAT THE APPELLANT AND HIS BROTHER SH. BA LDEV RAJ WERE EMPLOYEES OF M/S. N.S.SIDHU & CO., LIQUOR CON TRACTORS, PAKHOWL ROAD, LUDHIANA. NO EVIDENCE GATHERED FROM ANY QUARTER LEADS TO PROVE THAT ANY PART OF THE INVESTM ENT WAS INDEED MADE BY THE APPELLANT, OR HIS BROTHER. ALSO, THERE IS NO ENTRY IN THE BOOKS OF ACCOUNTS IMPOUNDED BY THE DEP ARTMENT U/S 131 OR ANY OTHER SEIZED RECORD; WHICH COULD SUP PORT THE CASE OF THE A.O. CONSIDERING THESE FACTS, I HOLD THAT TH E ADDITION OF RS.10,70,000/- IS NOT BASED ON COGENT EVIDENCE . AC CORDINGLY, THE ADDITION OF RS.10,70,000/- IS DELETED HEREBY. 19.4 IN VIEW OF THE ABOVE, WE DO NOT FIND ANY INFIR MITY IN THE FINDINGS OF THE CIT(A), AS THE SAME HAVE BEEN ARRIV ED AFTER PROPER APPRECIATION OF THE LEGAL AND FACTUAL POSITION OF T HE CASE. ACCORDINGLY, THE ORDER OF THE CIT(A), IS UPHELD AND THIS GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 12. IN THE NEXT GROUND OF APPEAL, THE REVENUE CONTE NDED THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN DELETING THE ADDITION O F RS.1,58,638/- MADE BY THE A.O. IN THE HANDS OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED ENTRIES IN THE NAMES OF N.S. SIDHU, H.S. SIDHU AND K.S. SIDHU APPEARING AT PAGE 70 OF THE LEDGER NO.4 IMPOUNDED U/S 131(3) OF THE ACT. 12.1 SIMILAR ISSUE, WE HAVE ALREADY DECIDED VIDE O UR ORDER OF EVEN DATE, IN PARA 20.3 AND 20.4 WHILE DECIDING THE APP EAL IN THE CASE OF ACIT, RANGE IV, JALANDHAR VS. SH.DHARAMVIR, LUDHIANA, IN ITA NOS.46 & 47(ASR)/2007 FOR THE ASSESSMENT YEARS 1994-95 & 95- 96 AND FOLLOWING THE SAME VIEW, WE DISMISS THIS GROUND OF APPEAL OF THE REVENUE . FOR THE SAKE OF CONVENIENCE, THE RELEVANT FINDINGS ARE GIVEN HEREUN DER: 13 20.3 HAVING HEARD BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD, INCLUDING THE ORDER PASSED BY THE CIT(A), W E FIND NO JUSTIFICATION TO INTERFERE WITH THE ORDER OF THE CI T(A). THE RELEVANT PART OF THE FINDING OF THE CIT(A) IS REPRODUCED HER EUNDER: 7. THE TENTH GROUND OF APPEAL IS REGARDING THE ASS ESSING OFFICERS ACTION IN MAKING AN ADDITION OF RS.1,58,6 31/-. THIS GROUND HAS ALREADY BEEN DISCUSSED ABOVE IN GROUND N O.9 WHEREIN I HAVE HELD THAT THE APPELLANT AND HIS BROT HER, SH. BALDEV RAJ WERE EMPLOYEES OF M/S. N.S. SIDHU & CO.. THEREFORE, I FIND NO JUSTIFICATION IN MAKING THE AD DITION OF RS.1,58,631/- BY THE A.O. THE OWNERS OF THE BUSINE SS CAN DRAW ANY AMOUNT AS THEY WISH. IN VIEW OF MY DECISION ABO VE, I DIRECT THE A.O. TO DELETE THIS ADDITION. 20.4 IN VIEW OF THE ABOVE, WE DO NOT FIND ANY INFIR MITY IN THE FINDINGS OF THE CIT(A), AS THE SAME HAVE BEEN ARRIV ED AFTER PROPER APPRECIATION OF THE LEGAL AND FACTUAL POSITION OF T HE CASE. ACCORDINGLY, THE ORDER OF THE CIT(A), IS UPHELD AND THIS GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 13. GROUND NOS. 8 & 9 ARE GENERAL IN NATURE AND DO NOT REQUIRE ANY ADJUDICATION. HENCE, THE SAME ARE DISMISSED. 14. NOW WE SHALL DEAL WITH C.O. FILED BY THE ASSESS EE. IN C.O. NO. 27(ASR)/2005 (ARISING OUT OF ITA NO.47(ASR)/2003) F OR THE ASSESSMENT YEAR 1995-96,THE ASSESSEE HAS RAISED FOLLOWING GROUNDS: 1. THAT THE ORDER OF THE LEARNED CIT(A), JALANDHAR IS ILLEGAL ON ACCOUNT OF THE FACT THAT HE ERRED IN NOT APPRECIATI NG THAT NOTICE U/S 142(1) OF THE ACT WAS ISSUED ON 3.1.1996 AND TH E ASSESSEE DID NOT FILE RETURN OF INCOME UPTO 31.3.1997. THE L D. CIT(A) VIDE ORDER DATD 24.9.1998 SET ASIDE THE ASSESSMENT WITH THE DIRECTIONS THAT THE APPELLANT WOULD BE FREE TO FURN ISH RETURN OF INCOME AND RETURN OF INCOME AS FILED ON 4.5.1999 IN VIEW OF THE 14 PROVISION OF SECTION 139(4), THE RETURN FILED ON 4. 5.1999 IS NON- EST AND WAS NOT REGULARIZED BY ISSUING NOTICE U/S 1 48 OF THE ACT INSPITE OF THE FACT THAT THE A.O. WAS REQUESTED ORA LLY AND AGAIN VIDE LETTER DATED 12.3.2001. HENCE, LD. A.O. WAS N OT COMPETENT TO ISSUE NOTICE U/S 143(2) OF THE ACT, THEREFORE, T HE ASSESSMENT MADE U/S 143(3) OF THE ACT VIDE ORDER DATED 27.3.20 01 IS ILLEGAL AND PRAYED TO BE CANCELLED ON ACCOUNT OF THIS DEFEC T WHICH IS INCURABLE. 2. THE APPELLANT CARVES LEAVE TO AMEND ANY GROUND(S ) OF APPEAL OR ADD ANY NEW GROUND(S) OF APPEAL BEFORE THE APPEAL I S FINALLY HEARD AND DISPOSED OFF. 14.1. SINCE, WE HAVE UPHELD THE VIEW TAKEN BY THE L D. CIT(A), AND DISMISSED THE APPEAL OF THE REVENUE, THE C.O. FIL ED BY THE ASSESSEE NEEDS NO SEPARATE ADJUDICATION, AS IT FALLS IN THE REALM OF ACADEMIC INTEREST. 15. IN THE RESULT, THE APPEAL FILED BY THE REVENUE AND C.O. FILED BY THE ASSESSEE ARE DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 6TH J UNE, 2011. SD/- SD/- (H.L. KARWA) (MEHAR SINGH) VICE PRESIDENT ACCOUNTANT MEMBER DATED: 6TH JUNE, 2011 /SKR/ COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE: SH. BALDEV RAJ, LUDHIANA. 2. THE ACIT, RANGE-IV, JALANDHAR. 3. THE CIT(A), LUDHIANA 4. THE CIT, 5. THE SR DR TRUE COPY 15 BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH : AMRITSAR.