Vijaykumar B. Lodha, Malegaon V. Income-tax Officer,

CO 33/PUN/2014

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 9467 (ITAT-PUNE)
• Duration Of Justice: 8 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 20-03-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 12-03-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Keywords: Unexplained cash credit; Unexplained expenditure; Income from undisclosed sources; Search and seizure; Salary income; Document seized; Principle of natural justice; Additional evidence; Corroborative evidences; Documents seized
• Section: 143(3); 153A; 132; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NOS.1384 TO 1386 & 1820/PN/2012 (A.YS. 2007-08 TO 2010-11) ITO (CENTRAL)-I, NASHIK APPELLANT VS. SHRI VIJAYKUMAR BHAGCHAND LODHA LODHA BHAVAN, SATANA ROAD, MALEGAON, NASHIK PAN: AAHPL2980R RESPONDENT CO NOS.32 TO 35/PN/2014 (A.YS. 2007-08 TO 2010-11) SHRI VIJAYKUMAR BHAGCHAND LODHA LODHA BHAVAN, SATANA ROAD, MALEGAON, NASHIK PAN: AAHPL2980R CROSS OBJECTOR VS. ITO (CENTRAL)-I, NASHIK RESPONDENT ITA NOS.1387, 1388 & 1959/PN/2012 (A.YS. 2008-09, 2009-10 & 2010-11) ITO (CENTRAL)-I, NASHIK APPELLANT VS. SHRI ANILKUMAR BHAGCHAND LODHA LODHA BHAVAN, SATANA ROAD, MALEGAON, NASHIK PAN: AAYPL6657N RESPONDENT 2 CO NOS.43 TO 45/PN/2014 (A.YS. 2008-09 TO 2010-11) SHRI ANILKUMAR BHAGCHAND LODHA LODHA BHAVAN, SATANA ROAD, MALEGAON, NASHIK PAN: AAYPL6657N CROSS OBJECTOR VS. ITO (CENTRAL)-I, NASHIK RESPONDENT ITA NOS.1542, 2245 & 1960/PN/2012 (A.YS. 2008-09, 2009-10 & 2010-11) ITO (CENTRAL)-I, NASHIK APPELLANT VS. SHRI DINESHKUMAR BHAGCHAND LODHA LODHA BHAVAN, SATANA ROAD, MALEGAON, NASHIK PAN: AAHPL2979E RESPONDENT CO NOS.46 TO 48/PN/2014 (A.YS. 2008-09 TO 2010-11) SHRI DINESHKUMAR BHAGCHAND LODHA LODHA BHAVAN, SATANA ROAD, MALEGAON, NASHIK PAN: AAHPL2979E CROSS OBJECTOR VS. ITO (CENTRAL)-I, NASHIK RESPONDENT 3 ITA NO.1816/PN/2012 (A.Y. 2010-11) ITO (CENTRAL)-I, NASHIK APPELLANT VS. SMT. SUMAN ANILKUMAR LODHA NEAR GOVT. HOSPITAL, SATANA ROAD, MALEGAON, NASHIK PAN: AADPL1353Q RESPONDENT CO NO.49/PN/2014 (A.Y. 2010-11) SMT. SUMAN ANILKUMAR LODHA NEAR GOVT. HOSPITAL, SATANA ROAD, MALEGAON, NASHIK PAN: AADPL1353Q CROSS OBJECTOR VS. ITO (CENTRAL)-I, NASHIK RESPONDENT ITA NO.1817/PN/2012 (A.Y. 2010-11) ITO (CENTRAL)-I, NASHIK APPELLANT VS. SMT. SAROJ VIJAYKUMAR LODHA LODHA BHAVAN, MAHAVIR NAGAR MARG NEAR GOVT. HOSPITAL, SATANA ROAD, MALEGAON, NASHIK PAN: AADPL1355J RESPONDENT 4 CO NO.50/PN/2014 (A.Y. 2010-11) SMT. SAROJ VIJAYKUMAR LODHA LODHA BHAVAN, MAHAVIR NAGAR MARG NEAR GOVT. HOSPITAL, SATANA ROAD, MALEGAON, NASHIK PAN: AADPL1355J CROSS OBJECTOR VS. ITO (CENTRAL)-I, NASHIK RESPONDENT ITA NO.1818/PN/2012 (A.Y. 2010-11) ITO (CENTRAL)-I, NASHIK APPELLANT VS. SMT. SUJATA DINESH LODHA NEAR GOVT. HOSPITAL, SATANA ROAD, MALEGAON, NASHIK PAN: AADPL1354K RESPONDENT CO NO.51/PN/2014 (A.Y. 2010-11) SMT. SUJATA DINESH LODHA NEAR GOVT. HOSPITAL, SATANA ROAD, MALEGAON, NASHIK PAN: AADPL1354K CROSS OBJECTOR VS. ITO (CENTRAL)-I, NASHIK RESPONDENT 5 ITA NO.1819/PN/2012 (A.Y. 2009-10) ITO (CENTRAL)-I, NASHIK APPELLANT VS. SHRI BHAGCHAND MOTILAL LODHA LODHA BHAVAN, MAHAVIR NAGAR MARG, NEAR GOVT. HOSPITAL, SATANA ROAD, MALEGAON, NASHIK PAN: AAEPL3261G RESPONDENT CO NO.52/PN/2014 (A.Y. 2010-11) SHRI BHAGCHAND MOTILAL LODHA LODHA BHAVAN, MAHAVIR NAGAR MARG, NEAR GOVT. HOSPITAL, SATANA ROAD, MALEGAON, NASHIK PAN: AAEPL3261G CROSS OBJECTOR VS. ITO (CENTRAL)-I, NASHIK RESPONDENT ASSESSEE BY : SHRI PRAMOD SHINGTE DEPARTMENT BY : SHRI S.P. WALIMBE DATE OF HEARING : 12.03.2014 DATE OF ORDER : 20.03.2014 ORDER PER BENCH: ALL THE APPEALS FILED BY THE REVENUE AND CORRESPON DING CROSS OBJECTIONS FILED BY THE ASSESSEE PERTAIN TO THE SAM E GROUP FOR DIFFERENT ASSESSMENT YEARS. SO THESE WERE HEARD TO GETHER AND ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR T HE SAKE OF 6 CONVENIENCE. THE ITA NOS.1384 TO 1386 & 1820/PN/20 12 FOR A.Y. 2007-08 TO 2010-11 PERTAIN TO SHRI VIJAYKUMAR BHAGC HAND LODHA. 2. IN ITA NO.1384/PN/2012 FOR A.Y. 2007-08, THE REV ENUE HAS FILED THE APPEAL ON THE FOLLOWING GROUNDS: 01. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDIT ION OF RS.29,765/- MADE BY DISALLOWANCE OF PART OF AGRICUL TURE INCOME SHOWN IN THE RETURN. 02. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDIT ION ON ACCOUNT OF RECEIPT OF ADVANCE AGAINST PROPERTY AT R S. 8,99,500/-. 03. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDIT ION ON ACCOUNT OF UNEXPLAINED EXPENDITURE IN THE CONSTRUCT ION OF BUNGALOW ON THE BASIS OF SEIZED DOCUMENTS AMOUNTING TO RS. 9,78,836/-. 04. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN IGNORING THE EVIDE NCE ON RECORD IN THE FORM OF INCRIMINATING MATERIALS ON TH E BASIS OF WHICH THE VARIOUS ADDITIONS WERE MADE, THUS REND ERING THE DECISION PERVERSE AND CONTRARY TO THE EVIDENCE ON RECORD. 05. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY, D ELETE AMEND ANY OF THE GROUNDS, AS PER THE CIRCUMSTANCES OF THE CASE. 06. THE APPELLANT PRAYS LEAVE TO ADDUCE SUCH FURTHER EV IDENCE TO SUBSTANTIATE ITS CASE AS THE OCCASION MAY DEMAND . 3. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASS ESSEE IS AN INDIVIDUAL HAVING INCOME FROM SALARY, CAPITAL GAIN, INTEREST INCOME FROM FIRMS IN WHICH THE ASSESSEE IS A PARTNER, AGRI CULTURAL INCOME ETC. THE ASSESSEE IS REGULARLY ASSESSED TO INCOME TAX. THE ORIGINAL RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION W AS FILED BY THE 7 ASSESSEE DECLARING TOTAL INCOME OF 4,55,810/- AND AGRICULTURAL INCOME AT 59,530/- ON 31.03.2008. A SEARCH WAS CONDUCTED U/S. 132(1) ON 21.05.2009 AT THE RESIDENTIAL PREMISES OF THE ASSESSEE AS WELL AS BUSINESS PREMISES OF THE FIRM M/S. M.B. CHE MICALS IN WHICH THE ASSESSEE IS A PARTNER AND ALSO COMPANY M/S. M.B . SUGARS & PHARMACEUTICALS LTD., IN WHICH THE ASSESSEE IS A DIRECTOR. IN RESPONSE TO THE NOTICE U/S.153A, THE ASSESSEE FILED A RETURN OF INCOME DECLARING TOTAL INCOME OF 4,55,810/- AND AGRICULTURAL INCOME OF 59,530/- ON 29.08.2011. THEREAFTER, THE REASSESSM ENT U/S. 143(3) R.W.S. 153A WAS COMPLETED ON THE TOTAL INCOME OF 23,80,081/- AND AGRICULTURAL INCOME OF 29,765/- ON 30.12.2011. THE ISSUES WITH REGARD TO VARIATION IN THE RETURNED INCOME AND ASSESSED TOTAL INCOME ARE DISALLOWANCE OF THE PART OF THE AGRICULTURAL INCOME, ADDITION ON ACCOUNT OF ADVANCE S RECEIVED AS PER BALANCE SHEET AND ADDITION ON ACCOUNT OF UNEXPL AINED INVESTMENT IN BUNGALOW. 4. AS STATED ABOVE, THE ASSESSING OFFICER MADE ADDI TION OF 29,765/- ON ACCOUNT OF DISALLOWANCE OF AGRICULTURAL INCOME. THE MATTER WAS CARRIED BEFORE FIRST APPELLATE AUTHORITY , WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHALF OF THE AS SESSEE WITH REGARD TO DISALLOWANCE OF 50% OF AGRICULTURAL INCOM E OF 29,765/- MADE FOR THE REASON THAT THE ASSESSEE HAS NOT FURNI SHED THE SUPPORTING EVIDENCE LIKE SALE PATTIS, MARKET CERTIF ICATES BILLS FOR FERTILIZERS, ETC. TO SUBSTANTIATE THE CORRECTNESS O F THE AGRICULTURAL INCOME. IN THIS REGARD, THE STAND OF THE ASSESSEE HAS BEEN THAT THE IMPUGNED DISALLOWANCE IS MADE IN SPITE OF THE FACT THAT THE ASSESSEE IS OWNING 28.95 ACRES OF IRRIGATED AGRICUL TURAL LAND AND ALSO THE AGRICULTURAL INCOME WAS DISCLOSED BY THE A SSESSEE IN THE RETURN OF INCOME FILED PRIOR TO THE SEARCH ACTION. 4.1 THE RELEVANT PORTION OF THE SUBMISSION BY THE A UTHORIZED REPRESENTATIVE BEFORE CIT(A) IS AS UNDER: 8 'THE APPELLANT HAS DISCLOSED AGRICULTURAL INCOME OF RS.59,530/- DURING THE YEAR UNDER REVIEW. THE A.O. DISALLOWED THE 50% OF THE SAME AND TREATED THE SAME AS INCOME FROM UNDISCLOSED SOURCES. THE IMPUGNED ADDITION IS MADE BY THE A.O. ON THE BASIS OF FOLLOWING REASONS- 1. THE APPELLANT HAS NOT FURNISHED ANY OTHER SUPPORTIN G EVIDENCES LIKE SALE PATTIS, MARKET CERTIFICATES, BI LLS FOR FERTILIZERS, ETC. TO SUBSTANTIATE THE CORRECTNESS O F THE AGRICULTURAL INCOME. 2. THE APPELLANT HAS NOT MAINTAINED ANY BOOKS OF ACCOU NTS FOR HIS INDIVIDUAL ENTITY. 4.2 THE ACTUAL FACT AND SUBMISSION OF THE APPELLANT IN RESPECT OF ABOVE IS AS UNDER 1. IT IS UNDISPUTED FACT THAT THE APPELLANT IS OWING 2 8.95 ACRES OF IRRIGATED AGRICULTURAL LAND. THE 7/12 EXTRACTS O F THE SAME ARE ALSO ON RECORD. THE AGRICULTURAL ACTIVITY IS AL SO DISCLOSED BY THE APPELLANT IN THE RETURN OF INCOME PRIOR TO S EARCH ACTION. THE IMPUGNED AGRICULTURAL INCOME WAS ALSO DISCLOSED BY THE APPELLANT IN THE RETURN OF INCOME FILED PRIOR TO SEARCH ACTION. NO ANY INCRIMINATING MATERIAL FOU ND DURING THE SEARCH ACTION TO JUSTIFY THE SAID ADDITI ON. 2. THE BOOKS OF ACCOUNTS ARE NOT MAINTAINED BY THE APP ELLANT AS NOT REQUIRED TO BE MAINTAINED UNDER THE PROVISIO NS OF LAW. IT IS ALSO NOT THE CASE OF THE A.O. THAT THE A PPELLANT HAS CONTRAVENED ANY LAW BY NOT MAINTAINING THE BOOKS OF ACCOUNT. 3. THE REASONABLENESS OF THE INCOME IS ALSO NOT DOUBTE D BY THE A.O. IN FACT THE REASONABLENESS OF THE INCOME CANNO T BE DOUBTED BY THE A.O. BECAUSE THE AGRICULTURAL INCOME SHOWN BY THE APPELLANT PER ACRE IS ONE OF THE LOWEST. HEN CE THE ALLEGATION OF THE A.O. THAT THE AGRICULTURAL INCOME AS WELL AS REFUND OF ADVANCE IS SHOWN BY THE ASSESSEE AS SOURC E OF CERTAIN EXPENSES IS OUT OF PREJUDICIAL MIND BECAUSE THE A.O. HAS ALLEGED THAT THE 7/12 EXTRACTS DATED 13/01/2010 ARE OBTAINED TO SUPPORT THE AGRICULTURAL INCOME SO AS T O ENABLE THE APPELLANT TO DEBIT CERTAIN HUGE EXPENSES. FROM SUCH STATEMENT OF THE A.O., IT APPEARS THAT HE HAS EVEN DOUBTED THE 7/12 EXTRACTS, WHICH IS A GOVERNMENT RECORD. 9 THEREFORE ON THE BASIS OF ABOVE SUBMISSION THE ADDI TION MADE BY THE A.O. ON ACCOUNT OF AGRICULTURAL INCOME PLEASE BE DELETED. 4.3 THE SUBMISSION OF THE ASSESSEE WAS SENT TO ASSE SSING OFFICER FOR HIS COMMENTS. THE ASSESSING OFFICER VIDE HIS RE PORT DATED 27.03.2012 HAS REITERATED THAT THE ASSESSEE HAS NO EVIDENCE OF SALE OF CROPS IN THE FORM OF SALE PATTIS, ETC. THE RELEV ANT PORTION OF THE REMAND REPORT SUBMITTED BY THE ASSESSING OFFICER IS AS UNDER: 'IN THIS CONNECTION AT THE OUTSET IT CAN BE SAID TH AT THE ASSESSEE HAS ACCEPTED THAT HE HAS NO EVIDENCE OF SA LE OF CROPS BY NOT PRODUCING THE EVIDENCE IN FORM OF SALE PATTI ES, ETC. MERELY 7/12 EXTRACTS DO NOT SUBSTANTIATE THE QUANTU M OF THE YIELD PRODUCED AND THE INCOME THEREOF. FURTHER, ASS ESSEE HAS MADE AN ATTEMPT TO JUSTIFY THE CLAIM OF THE AGRICUL TURAL INCOME FROM THE CULTIVATION OF THE LAND ON THE BASIS OF 7/ I2 EXTRACTS. DURING ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS NOT FURNISHED ANY OTHER SUPPORTIVE EVIDENCES DESPITE OF SEVERAL OPPORTUNITY ALLOWED IN REGARD TO SUSTAINING OF THE INCOME SO CREDITED IN THE CAPITAL ACCOUNT. IT IS ALSO WORTH T O SUBMIT THAT THE ASSESSEE PREPARED HIS CAPITAL, BALANCE SHEET PO SITION ETC. ONLY AFTER SEARCH ACTION. BY THIS WAY THE ASSESSEE MANIPULATED HIS ACCOUNTS AS PER REQUIREMENTS IF FUNDS WITH OTHE R CONCERNS OF HIS GROUP. THE ADDITION ON THIS POINT HAS BEEN E LABORATELY DISCUSSED AL PARA NO. 7.2 OF THE ASSESSMENT ORDER W ITH THE OVERALL CONSIDERATION OF THE CAPITA! INTRODUCED. HO WEVER, TO ALLOW NATURAL JUSTICE THE INCOME SO CREDITED WERE C ONSIDERED : ; 50% OF THE AMOUNT UNDER THIS HEAD EVEN THERE IS NO INCOME PROOF OR EVIDENCES FURNISHED BY THE ASSESSEES OTHER THAN 7/12 EXTRACTS. THE CONTENTION OF THE ASSESSEE IS NOT ACC EPTED.' 4.4 THE COPY OF SAID REPORT OF THE ASSESSING OFFICE R WAS GIVEN TO THE LEARNED AUTHORIZED REPRESENTATIVE OF THE ASSESS EE FOR HIS COMMENTS. THE AUTHORIZED REPRESENTATIVE ON BEHALF OF ASSESSEE HAS MADE WRITTEN SUBMISSION VIDE HIS LETTER DATED 3 0.03.2012, WHICH IS AS UNDER: 'THE CONTENTION OF THE A.O. THAT THE APPELLANT HAS NOT FURNISHED EVIDENCE IN THE FORM OF SALE PATTIES TO D ENY THE PARTLY THE CLAIM OF THE AGRICULTURAL INCOME IS INCO RRECT BECAUSE THE AGRICULTURAL OPERATION CARRIED OUT BY THE APPEL LANT IS NOT IN DISPUTE BECAUSE THE A.O. HIMSELF HAS ACCEPTED PART OF THE 10 AGRICULTURAL INCOME. FURTHER THE REASONABLENESS OF THE AGRICULTURAL INCOME IS ALSO NOT IN DISPUTE. IT IS A CCEPTED FACT THAT THE AGRARIAN SECTOR IS NOT ORGANIZED AND MANY TIMES DUE TO SPOT SALE THE SALE NOTES ARE NOT AVAILABLE'. THE SECOND CONTENTION OF THE A.O. THAT THE BALANCE SHEET IS PREPARED BY THE APPELLANT ALTER SEARCH ACTION IS NO T CORRECT BECAUSE THE SAID AGRICULTURAL INCOME .WAS ALREADY D ISCLOSED BY THE APPELLANT IN ALL THE ORIGINAL RETURNS OF INCOME FILED PRIOR TO SEARCH ACTION UPTO INTRODUCTION OF E-FILING SCHEME. IT IS ALSO PERTINENT TO NOTE THAT THE ABRIDGED CASH ACCOUNT WA S FURNISHED ALONG WITH THE ORIGINAL RETURN OF INCOME IN WHICH THE SAID AGRICULTURAL INCOME WAS ALREADY DISCLOSED. THEREFORE THIS CONTENTION OF THE A.O. IS BASED ON SURMISES AN D OUT OF SHEER PREJUDICE. FURTHER, NO EVIDENCE IS FOUND DURING THE SEARCH ACT ION OR BROUGHT ON RECORD BY THE AO TO NEGATE THE CLAIM OF THE AGRICULTURAL INCOME AS DISCLOSED BY THE APPELLANT.' THEREFORE, ON THE BASIS OF ABOVE SUBMISSION LD A.R. URGED TO DELETE THE IMPUGNED DISALLOWANCE MADE ON ACCOUNT OF PART AGRICULTURAL INCOME. 4.5 HAVING CONSIDERED THE SAME, THE CIT(A) DELETED THE ADDITION OF 29,765/-. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENUE, INTER ALIA SUBMITTED THAT THE CIT(A) ERRED IN DELETING THE ADDITION OF 29,765/- MADE BY DISALLOWANCE OF PART OF AGRICULTUR E INCOME SHOWN IN THE RETURN. ON THE OTHER HAND, THE LEARNED AUTHORIZED REPRESENTATIVE SUPPORTED THE ORDER OF CI T(A). 4.6 HAVING GONE THROUGH THE RIVAL SUBMISSIONS AND M ATERIAL ON RECORD, WE FIND IT UNDISPUTED THAT THE ASSESSEE HAS IRRIGATED LAND HOLDING OF 28.95 ACRES OF LAND, ON WHICH THE ASSESS EE HAS GROWN CROPS LIKE BAJRA, MAIZE, MANGO AND GRASS FOR CATTLE FEED. THE ASSESSING OFFICER HAS NOT DOUBTED THE REASONABLENES S OF AGRICULTURAL INCOME SHOWN BY THE ASSESSEE IN HIS RE TURN OF INCOME BUT ONLY STATED THAT THE ASSESSEE HAS NEITHER PRODU CED ANY SUPPORTING EVIDENCES LIKE SALE PATTIS, ETC. TO SUBS TANTIATE THE AGRICULTURAL INCOME NOR HAS MAINTAINED ANY BOOKS OF ACCOUNT FOR HIS INDIVIDUAL ENTITY. ACCORDING TO US, THE AGRICU LTURISTS WERE NOT 11 MAINTAINED BOOKS OF ACCOUNTS; WE ARE OF THE VIEW TH AT ONCE THERE IS AN AGRICULTURAL HOLDING, PRODUCTION THEREON IS BOUN D TO BE THERE, ONCE LAND IS IRRIGATED ONE. IN THE INSTANT CASE, T HE ASSESSEE HAS SHOWN AGRICULTURAL INCOME IN THE RETURN OF INCOME F ILED PRIOR TO THE SEARCH ACTION. THOUGH THE ASSESSEE HAS NOT MAINTAI NED BOOKS OF ACCOUNT AS DISCUSSED ABOVE, BUT HAS FURNISHED ABRID GED CASH ACCOUNT WITH THE RETURNS OF INCOME UPTO THE YEAR OF INTRODUCTION OF E-FLING SCHEME. IN THIS SITUATION, IT COULD NOT BE SAID THAT THE ASSESSEE HAS MANIPULATED HIS ACCOUNTS AS PER THE RE QUIREMENTS OF FUNDS. THERE IS NOTHING ON RECORD TO SUGGEST THAT ANY INCRIMINATING EVIDENCE WAS FOUND DURING THE COURSE OF SEARCH ACTI ON OR BOUGHT ON RECORD BY THE ASSESSING OFFICER TO NEGATE THE CLAIM OF THE ASSESSEE OF EARNING AGRICULTURAL INCOME AS DISCLOSED BY HIM. TAKING AL FACTS AND CIRCUMSTANCES, THE CIT(A) WAS JUSTIFIED IN OBSE RVING THAT THE ASSESSEE HAS CLAIM OF AGRICULTURAL INCOME IS REASON ABLE AS COMPARED WITH THE HOLDING OF AGRICULTURAL LAND BY H IM. ACCORDINGLY, THE CIT(A) WAS JUSTIFYING IN DELETING THE ADDITION MADE BY WAY OF DISALLOWANCE MADE BY THE ASSESSING OFFICE R OF THE AGRICULTURAL INCOME AMOUNTING TO 29,765/-. WE UPHOLD THE SAME. 5. NEXT ISSUE IS WITH REGARD TO ADVANCE OF 8,99,500/- SHOWN TO BE RECEIVED AGAINST THE PROPERTY AS PER BALANCE SHE ET. FACTS OF THE ISSUE INVOLVED IS THAT THERE WAS CREDIT BALANCE IN THE BALANCE SHEET OF THE ASSESSEE OF 8,99,500/- IN THE NAME OF FAMILY MEMBERS. THE ASSESSING OFFICER MADE THE ADDITION THEREOF. THE M AIN REASON GIVEN BY THE ASSESSING OFFICER FOR MAKING THE IMPUGNED AD DITION IS THAT THE ASSESSEE HAS INCURRED SOME EXPENDITURE IN ACQUI SITION OF PLOT OF 18,59,385/- AND ALSO INCURRED EXPENDITURE FOR CONS TRUCTION OF HOUSE THEREON OF 10,68,715/-. THE ASSESSING OFFICER FURTHER OBSERVED THAT AS PER BALANCE SHEET, THE ASSESSEE HA S SHOWN TO HAVE RECEIVED 8,99,500/- IN CASH ON ACCOUNT OF ADVANCE FOR PROPER TY FROM HIS FAMILY MEMBERS I.E. 3,75,000/- FROM BHAGCHAND M. LODHA, 1,25,000/- FROM BHAGCHAND M. LODHA HUF AND 12 4,00,000/- FROM SAROJ A. LODHA. THE ASSESSING OFFI CER STATED THAT THE ASSESSEE HAS ADOPTED THIS MODES OPERANDI TO INT RODUCE HIS UNEXPLAINED AND UNACCOUNTED MONEY FOR CREATING CAPI TAL AND DIVERTING FOR BUNGALOW/MARRIAGE AND OTHER ARRANGEME NTS. 5.1 IN APPEAL BEFORE CIT(A), THE STAND OF THE ASSES SEE HAS BEEN THAT OF THE ASSESSEE HAS BEEN THAT HE HAS DISCLOSED THE SAID ADVANCES AS RECEIVED IN HIS FINANCIAL STATEMENTS AN D ALSO THE PERSONS FROM WHOM THE ASSESSEE HAS RECEIVED THE SAI D ADVANCES ARE FAMILY MEMBERS. THEIR CASES WERE ALSO WITH THE SAME ASSESSING OFFICER WHO HAVE SHOWN THE SAID TRANSACTIONS IN THE FINANCIAL STATEMENTS. THE RELEVANT PORTION OF THE SUBMISSION IN THIS REGARD OF THE AUTHORIZED REPRESENTATIVE IS AS UNDER: 'DURING THE YEAR UNDER REVIEW THE APPELLANT HAS RECEIVED ADVANCES OF RS.3,74,500/ FROM SHRI BHAG CHANDJI M. LODHA, RS.1,25,0OO/- FROM SHRI BHAGCHANDJI M. LODHA (HUF) AND RS.4,00,000/- FROM MRS. SUMAN A. LODHA IN CASH. THE SAID ADVANCES WERE DISCLOSED IN THE FINANCIAL STATE MENTS OF THE APPELLANT. IN PARA 7.3 OF THE ASSESSMENT ORDER, TH E A.O. HAS LINKED THE INVESTMENTS MADE BY THE APPELLANT WITH T HE IMPUGNED ADVANCES RECEIVED. IT IS THE CONTENTION OF THE A.O. THAT THE IMPUGNED ADVANCES RECEIVED ARE EITHER FAKE OR THE PERSONS FROM WHOM THE ADVANCES ARE SHOWN TO BE RECE IVED ARE FAKE. IT IS ALSO PERTINENT TO NOTE THAT THE A.O. HA S EVEN DOUBTED THE INVESTMENTS MADE BY THE APPELLANT DURIN G THE YEAR UNDER REVIEW AS WELL AS CASH ON HAND SHOWN BY THE APPELLANT. IN SUCH CIRCUMSTANCES AND WITHOUT PREJUD ICE TO THE ACTUAL FACT THEN THE ADDITION MADE BY THE A.O. ON T HE COUNT OF ADVANCES RECEIVED IS NOT JUSTIFIED. HOWEVER BASICAL LY THE A.O. IS IN TOTAL CONFUSED STATE OF MIND TO TREAT THE ADV ANCES RECEIVED BY THE APPELLANT AS FAKE OR THE ASSETS REP RESENTED BY THE SAID ADVANCES RECEIVED AS FAKE. THIS STATE OF MIND OF THE A.O. CLEARLY INDICATES HIS PREJUDICIAL NATURE AGAIN ST THE APPELLANT. THE A.O. HAS MADE ADDITION OF ADVANCES RECEIVED FROM THE FAMILY MEMBERS ON THE BELIEF THAT THEY ARE FICTITIOUS TRANSACTIONS. NEVERTHELESS THE APPELLANT DURING THE ASSESSMENT PROCEEDINGS HAS FURNISHED THE CONFIRMATI ONS OF THE ABOVE PERSONS AND SURPRISINGLY THE CASES OF BHA GCHAND M LODHA IND. AND BHAGCHAND LODHA HUF AND ALSO SUMAN LODHA WERE ALSO UNDER SCRUTINY BEFORE HIM, WHEREIN THEY HAVE CLEARLY SHOWN IN THEIR FINANCIAL STATEMENTS, THE IM PUGNED AMOUNT PAID TO THE APPELLANT. THE COPY OF ACKNOWLED GMENT OF 13 RETURNS OF INCOME, BALANCE SHEETS AND CONFIRMATIO N LETTERS FOR THE YEAR UNDER REVIEW ARE ENCLOSED HEREWITH. THE IMPUGNED ADDITION IS NOT MADE BY THE A.O. ON TH E BASIS OF ANY SEIZED MATERIAL, HOWEVER THE IMPUGNED ADDITION IS MADE BY THE A.O. ON THE BASIS OF FINANCIAL STATEMENTS OF THE APPELLANT. THE NON APPLICATION OF MIND OF THE A.O. IS ALSO APPEARED FROM THE ORDER ITSELF BECAUSE HE HAS MADE REFERENCE TO THE PARA NOS. 3 & I AS CONFINING PARA AS MENTION ED IN THE SAID ORDER, BUT THE FACT IS DIFFERENT. THEREFORE IN SUCH CIRCUMSTANCES, THE IMPUGNED ADDIT ION MADE BY THE A.O. PLEASE BE DELETED'. 5.2 THE SUBMISSION OF THE ASSESSEE WAS SENT TO TH E ASSESSING OFFICER FOR HIS COMMENTS. THE ASSESSING OFFICER VID E HIS REPORT DATED 27.03.2012 HAS STATED THAT THE INDIVIDUAL ACC OUNTS OF THE ASSESSEE WERE FINALIZED ONLY AFTER THE SEARCH ACTIO N AND THE FUNDS WERE ADJUSTED AND MANIPULATED AS PER REQUIREMENTS A ND ALL THE TRANSACTIONS WERE SHOWN TO BE ENTERED IN CASH BY WA Y OF ADVANCES AGAINST PROPERTIES AND LOAN, ETC. THE REL EVANT PORTION OF THE REPORT IS AS UNDER: 'THE CONTENTION OF THE ASSESSEE IS NOT SUBSTANTIVE IN THE WAY THAT THE INDIVIDUAL ACCOUNTS WERE FINALIZED ON.LY A FTER THE SEARCH ACTION. THE FUNDS WERE ADJUSTED AND MANIPULA TED AS PER THE REQUIREMENTS OF THE CONCERNS. THE CONFIRMAT ION LETTERS CLEARLY SHOWN THAT THERE IS CASH TRANSACTION WITH T HE GROUP IN A LARGE EXTENT BY WAY OF ADVANCES AGAINST PROPERTY AND LOANS. IT IS WORTH TO MENTION THAT THE TRANSACTION OF ANY PROPERTY NEVER GOT MATERIALIZED WITHIN THE FAMILY MEMBERS AT ANY POINT OF TIME. ON THE BASIS OF SUCH CONFIRMATION LETTERS OVER THE YEARS INVOLVED, THE RESPECTIVE QUANTUM FOR A SPECIF IC YEAR HAS BEEN ARRIVED. THE ONUS TO ASCERTAIN THE GENUINENESS OF THE TRANSACTION HAS NOT BEEN DISCHARGED BY THE ASSESSEE OTHER THAT THE CLAIM THAT THE FUNDS WERE TRANSACTED BY WA Y OF CASH FOR PROPERTY ADVANCES WHICH WERE NOT MATERIALIZED. THE ASSESSEE HAS NOT ON ANY OCCASION SUBMITTED THE DEED S ETC (HISAR PAVATI, SATHE KHAT, AGREEMENT FOR SALE) IN S UPPORT OF SUCH ADVANCES AGAINST PROPERTY. THE COPSES OF ALL C ONFIRMATION LETTERS ARE ENCLOSED FOR YOUR READY REFERENCE THAT CLEARLY SHOWN THE MODUS OPERANDI OF THE ASSESSEE BY WAY OF WHICH THE UNACCOUNTED AND UNEXPLAINED MONIES WERE INTRODUCED IN CAPITAL. THE ADDITIONS WERE MADE AFTER ASCERTAINING THE CASH 14 ADVANCE TRANSACTIONS FOR THE CONCERNED YEAR ONLY IN THE HANDS OF THE ASSESSEE WHEREVER APPLICABLE AND HAS NOT BEE N DOUBLY TAXED AS ALLEGED BY THE ASSESSEE. THE ASSESSEE HAS FAILED TO DISCHARGE HIS ONUS OF GENUINENESS ON THIS POINT BUT TO THE CONFIRMATIONS AFTER MANIPULATION OF THE CAPITAL ACC OUNTS AND INTRODUCTION OF CASH WHEREVER REQUIRED. THE ASSESSE E AND HIS FAMILY MEMBERS HAVE NOT SUBMITTED THE DETAILS OF CA SH WITHDRAWALS WITH THE RESPECTIVE CONCERNS FOR PROPER TY TRANSACTION EVEN OF SEVERAL REQUESTS TO SUBMIT THE SAME WERE MADE. THIS PART HAS BEEN ELABORATELY DISCUSSED AT P ARA NO. 7.3 OF THE ASSESSMENT ORDER WHERE SUCH UNACCOUNTED MONI ES HAVE BEEN DISCUSSED AS DIVERTED TOWARDS MARRIAGE AND BUN GALOW CONSTRUCTION. THE CONTENTION OF THE ASSESSEE IS NOT ACCEPTED.' 5.3 THE COPY OF SAID REPORT OF THE ASSESSING OFFI CER WAS SUPPLIED TO THE LEARNED AUTHORIZED REPRESENTATIVE OF THE ASS ESSEE FOR HIS COMMENTS. IN RESPONSE, THE AUTHORIZED REPRESENTATI VE OF THE ASSESSEE HAS MADE WRITTEN SUBMISSION VIDE HIS LETTE R DATED 30.03.2012, WHICH IS AS UNDER- 'THE A.O. MAINLY DOUBTED THE SAID ADVANCES AS THEY ARE TAKEN FROM SHRI BHAGCHANDJI M. LODHA RS.3,74,500/-, SHRI BHAGCHANDJI M. LODHA HUF RS.1,25,000/- AND MRS. SUM AN A LODHA RS.4,00,000/- IN CASH AND NO WRITTEN AGREEMEN T I.E. SATHE KHAT, AGREEMENT FOR SALE, ETC. WERE FURNISHED . HERE IT IS TO BE STATED THAT THE SAID ADVANCES ARE TAKEN IN CA SH AS THE PERSONS FROM THE APPELLANT HAS TAKEN ARE ALL FAMILY MEMBERS AND IT WOULD BE TOO MUCH TO EXPECT IN CASE OF FAMIL Y MEMBERS TO HAVE TRANSACTIONS BY ACCOUNT PAYEE CHEQUES AND A LSO TO HAVE WRITTEN AGREEMENTS FOR TRANSACTIONS WITH EACH OTHER. THE CONTENTION OF THE A.O. IS SURMISES AND OUT OF SHEER PREJUDICE. THE AVAILABILITY OF FUNDS WITH THE SAID PARTIES MEM BERS IS NOT IN DISPUTE, ALL THE PERSONS ARE ASSESSED TO TAX IS NOT IN DISPUTE, IT IS ALSO FACT THAT THE FUNDS WITH THE OT HER PERSONS ARE MAINLY OUT OF TAXABLE INCOME AS SHOWN BY THEM I N THEIR RESPECTIVE RETURN OF INCOME. THE CONDITIONS I.E. GE NUINENESS OF PERSON, CREDITWORTHINESS OF PERSON ARE NOT IN DISPU TE. THE A.O. HAS JUST DOUBTED THE GENUINENESS OF TRANSACTION BUT IF THE GENUINENESS TRANSACTION IS DOUBTED THEN THAT WOULD RESULT HEAVY CASH ON HAND IN THE HANDS OF THE SAID PERSONS IN THE FAMILY AT ONE HAND AND NEGATIVE CASH IN THE HANDS O F APPELLANT IN THE SAME FAMILY AT OTHER HAND. FURTHER THE QUESTION OF AGREEMENT DOES NOT ARISES AS THE SAID P ERSONS ARE ALL FAMILY MEMBERS OF THE APPELLANT. HERE IT IS TO BE POINTED OUT THAT IN SIMILAR CASE SUCH TRANSACTIONS ARE ACCE PTED BY THE INCOME TAX DEPARTMENT IN THE ASSESSMENT OF CHOKSI G ROUP. 15 IN THIS BACKGROUND, THE LEARNED AUTHORIZED REPRESE NTATIVE REQUESTED TO DELETE THE IMPUGNED ADDITION MADE ON A CCOUNT OF ADVANCE GIVEN AS PER BALANCE SHEET. 5.4 HAVING AGREED TO THE CONTENTION OF THE LEARNE D AUTHORIZED REPRESENTATIVE, CIT(A) GRANTED RELIEF TO THE ASSESS EE ON THIS ACCOUNT. THE SAME HAS BEEN OPPOSED BEFORE US ON BE HALF OF REVENUE INTER ALIA SUBMITTED THAT THE CIT(A) ERRED IN DELETING THE ADDITION ON ACCOUNT OF RECEIPT OF ADVANCE AGAINST P ROPERTY AT RS. 8,99,500/-. ON THE OTHER HAND THE LEARNED AUTHORIZ ED REPRESENTATIVE SUPPORTED THE ORDER OF CIT(A) ON THE ISSUE. 5.5 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND M ATERIAL ON RECORD, WE FIND IT UNDISPUTED THAT THE AMOUNTS SHOW N TO BE RECEIVED AS ADVANCES IS MENTIONED IN THE BALANCE SH EET OF THE ASSESSEE AT LIABILITY SIDE. AT THE SAME TIME IT IS ALSO NOT DISPUTED THAT THE PARTIES FROM WHOM THE SAID ADVANCE IS SHOW N TO BE RECEIVED I.E. SHRI BHAGCHANDJI M. LODHA, SHRI BHAGC HANDJI M. LODHA HUF AND MRS. SUMAN A. LODHA HAVE ALSO SHOWN T HE AMOUNT OF ADVANCE GIVEN TO THE ASSESSEE 3,74,500/-, 1,25,000/- AND 4,00,000/- RESPECTIVELY IN THEIR RESPECTIVE BALANCE SHEETS. IT WAS ALSO FOUND UNDISPUTED THAT ALL THE SAID PARTIES ARE ALSO ASSESSED BY THE SAME ASSESSING OFFICER AT THE SAME TIME. THE S OURCES AVAILABLE WITH THE SAID PARTIES FOR ADVANCING THE IMPUGNED SU MS TO THE ASSESSEE ARE NOT IN DISPUTE OR DOUBT. IN THIS BACK GROUND, THE STAND OF THE ASSESSING OFFICER THAT THE ASSESSEE HAS INTR ODUCED HIS UNACCOUNTED AND UNEXPLAINED CASH BY CREATING CAPITA L AND DIVERTING THE SAME FOR CONSTRUCTION OF BUNGALOW OR MARRIAGE OR OTHER ADJUSTMENT IS NOT JUSTIFIED. IT IS BASED ON SURMISES BECAUSE THE SAID TRANSACTION IS DULY DISCLOSED BY THE ASSES SEE IN HIS BALANCE SHEET AS LIABILITY AND THE SAME IS NOT CREDITED TO THE CAPITAL ACCOUNT. FURTHER, THE STAND OF THE ASSESSING OFFICE R THAT THE ASSESSEE HAS PURCHASED THE PLOT FOR CONSTRUCTION OF THE BUNGALOW 16 DURING THE YEAR UNDER APPEAL IS NOT CORRECT BECAUSE THE SAID PLOT WAS ACQUIRED BY THE ASSESSEE DURING THE F.Y. 2003-0 4. THE ASSESSING OFFICER HAS ALWAYS, IN THE GROUP CASES, A SSUMED THAT ADVANCES GIVEN OR RECEIVED BACK AND DISCLOSED IN TH E BALANCE SHEET AS UNACCOUNTED OR UNEXPLAINED MONEY, IS NOT JUSTIFI ED. IT IS MORE SO, WHEN THE SAID ADVANCES WERE DISCLOSED BY THE AS SESSEE IN THE BALANCE SHEETS, THEREFORE, THE SAME COULD NOT BE TR EATED AS UNACCOUNTED OR UNEXPLAINED. THE GENUINENESS OF THE PERSON FROM WHOM THE SAID ADVANCES ARE SHOWN TO BE RECEIVED AS WELL AS THEIR CREDIT WORTHINESS IS NOT IN DISPUTE. THE GENUINENE SS OF THE TRANSACTIONS SHOULD NOT BE DOUBTED BY THE ASSESSING OFFICER ONCE THE PARTIES HAVE ALSO SHOWN THE SAID TRANSACTIONS I N THEIR FINANCIAL TRANSACTIONS AND ALSO GIVEN CONFIRMATION THEREOF. IN THIS BACKGROUND THE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING THE ADDITION ON ACCOUNT OF ADVANCE RECEIVED OF 8,99,500/- AND THE SAME HAS RIGHTLY BEEN DELETED BY THE CIT(A) BY REAS ONED FACTUAL FINDING. WE UPHOLD THE SAME. 6. THE NEXT ISSUE RELATES TO THE ADDITION OF 9,78,836/- MADE ON ACCOUNT OF UNEXPLAINED EXPENDITURE INCURRED ON B UNGALOW CONSTRUCTION. DURING THE COURSE OF SEARCH ACTION C ERTAIN DOCUMENTS MARKED AS ANNEXURE A-3/2 & A-31 WERE FOUN D AND SEIZED WHICH CONTAINED SOME DETAILS OF THE EXPENSES ON THE CONSTRUCTION OF BUNGALOW OF THE ASSESSEE. THE ASSE SSING OFFICER MADE AN ADDITION THEREOF FOR THE REASON THAT THE AS SESSEE HAS NOT COMMENTED ON THIS ISSUE AND JUST CLAIMED THAT THE S AME IS ACCOUNTED FOR IN THE BALANCE SHEET AND NO SUPPORTIN G EVIDENCES WERE AVAILABLE WITH THE ASSESSEE. THE ASSESSING OF FICER ALSO STATED IN THE ASSESSMENT ORDER THAT THE ASSESSEE HAS CLAIM ED THAT SOME OF THE EXPENSES AS NOTED ON THE PAGES AS REFERRED HERE INABOVE PERTAINS TO B.M. LODHA MARKET, HOWEVER NOTHING HAS BEEN FURNISHED IN SUPPORT OF THIS CONTENTION. 17 6.1 IN APPEAL, THE STAND OF THE ASSESSEE HAS BEEN T HAT THE IMPUGNED EXPENSES WERE WELL ACCOUNTED IN THE STATEM ENT OF AFFAIRS OF THE ASSESSEE AND NO CLAIM HAS BEEN MADE BY THE A SSESSEE THAT ANY OF THE ABOVE MENTIONED EXPENSES WERE RELATED TO B.M. LODHA MARKET. THE RELEVANT PORTION OF THE SUBMISSION OF T HE ASSESSEE IS AS UNDER: 'DURING THE COURSE OF SEARCH ACTION CERTAIN DOCUMEN TS PERTAINING TO EXPENDITURE INCURRED ON BUNGALOW CONS TRUCTION OF THE APPELLANT WERE FOUND. THE COMPLETE EXPLANATI ON WITH REFERENCE TO SAID DOCUMENTS WERE FURNISHED TO THE A .O. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, HOWEVER IT AP PEARS THAT THE A.O. HAS MADE IMPUGNED ADDITION OF RS.9,78,836/ -, THE DETAILS OF WHICH ARE AS UNDER, WITH PREJUDICIAL MIN D AND ABSOLUTELY IGNORING THE SUBMISSIONS MADE ON BEHALF OF THE APPELLANT IN THIS RESPECT. ANNEXURE AMOUNT ANNEXURE A-3/2 RS.19,436/- ANNEXURE A-31 RS.9,59,400/- ----------------- TOTAL RS.9,78,836/- THE ACTUAL FACT AND SUBMISSION OF THE APPELLANT IN RESPECT OF ABOVE IS AS UNDER: ANNEXURE A-3/2, PAGE NO. 14 TO 38 OF RS.19,436/- THE SAID PAGES ARE THE BILLS AS WELL AS CASH VOUCHE RS FOR CONSTRUCTION EXPENSES OF BUNGALOW NAMELY LODHA PALA CE OF THE APPELLANT. PAGE NO. 38 INCLUDE TOTAL EXPENDITUR E ON ACCOUNT OF CONSTRUCTION AT RS. 19,436/- WHICH INCLU DE THE EXPENDITURE NOTED IN PAGE NO. 11 TO 37. THE EXPENSE S OF RS. 19,436/- ARE ACCOUNTED IN THE STATEMENT OF AFFAIRS OF THE APPELLANT FOR THE YEAR UNDER REVIEW. THE ACCOUNT EX TRACT OF INVESTMENT IN BUNGALOW CONSTRUCTION IS ENCLOSED HER EWITH. ANNEXURE A-31 OF RS.9,59,400/- THE SAID BUNDLE WAS NOT FOUND FROM THE PREMISES OF THE APPELLANT OR HIS BROTHERS. THE SAID BUNDLE WAS SEIZ ED FROM THE RESIDENTIAL PREMISES OF THE NEMICHAND P MODI, WHICH CONTAINS EXPENDITURE IN RESPECT OF DIFFERENT WORK SUCH AS RC C, SAND, WATCHMAN SALARY, ETC. INCURRED BY THE MR. DEEPAK N MODI FOR 18 CONSTRUCTION OF BUNGALOW VIZ. LODHA PALACE. THE SAI D EXPENSES WERE INCURRED BY MR. DEEPAK MODI OUT OF THE PAYMENT S MADE TO HIM BY THE APPELLANT AS WELL AS HIS WIFE MRS. SA ROJ LODHA FROM TIME TO LIME. THIS FACT IS NOT IN DISPUTE. THE PAGE NOS. 85 AND 86 OF THE SAID BUNDLE ALSO CONTAINS SUCH DETAIL S OF AMOUNTS RECEIVED BY MR. DEEPAK N MODI FROM THE APPE LLANT AND HIS WIFE FOR CONSTRUCTION OF BUNGALOW. THE SAID TWO PAGES ARE ONLY SUMMARY OF THE AMOUNTS RECEIVED BY MR. MOD I AND THE IS CLEARLY CO-RELATABLE WITH THE CASH BOOKS SEI ZED AT ANNEXURE A-27, A29, ETC FROM THE PREMISES OF MR. DE EPAK MODI. THE SAID PAYMENTS WERE MADE BY THE APPELLANT AND HIS WIFE AND THE SAME ARE DULY DISCLOSED IN THEIR RESPE CTIVE FINANCIAL STATEMENTS. THE A.O. ASSUMED THE SAID TWO PAGES AS EXPENDITURE INCURRED FOR CONSTRUCTION OF BUNGALOW CONSTRUCTION OUT OF UNEXPLAINED AND UNACCOUNTED MON IES AND THEREFORE THE A.O. MADE ADDITION OF RS.9,59,400/- I N THE HANDS OF THE APPELLANT IGNORING THE FACT THAT THE A MOUNT PAID BY THE APPELLANT AS WELL AS HIS WIFE TO MR. DEEPAK MODI FROM TIME TO TIME ARE DULY ACCOUNTED AND DISCLOSED BY TH E APPELLANT AND HIS WIFE. 8.1 FURTHER, DURING THE YEAR UNDER APPEAL, THE APPE LLANT AND HIS WIFE HAS DISCLOSED THE CONSTRUCTION PAYMENT TO MR. DEEPAK N MODI AT RS. 7,24,400/-AND RS. 2,39,780/- RESPECTI VELY IN THEIR RESPECTIVE STATEMENT OF AFFAIRS, WHICH IS MOR E THAN THE AMOUNT SHOWN BY THE A.O. AS EXPENDITURE INCURRED ON ACCOUNT OF BUNGALOW CONSTRUCTION. THE ACCOUNT EXTRA CT OF BUNGALOW CONSTRUCTION REFLECTING THE PAYMENTS MADE TO MR. MODI BY THE APPELLANT AND HIS WIFE ARE ENCLOSED HER EWITH'. 6.2 THE SUBMISSION OF THE APPELLANT WAS SENT TO THE AO FOR HIS COMMENT. THE AO VIDE HIS REPORT DATED 27/03/2012 HA S STATED THAT THE DEBIT BALANCE OF BUNGALOW ACCOUNT IS FURNISHED BY THE APPELLANT ONLY AFTER THE SEARCH ACTION AND THE APPELLANT DID NOT CORRELATE THE NOTING OF THE SEIZED DOCUMENTS WITH THE INVESTMENT. THE RELEVANT PORTION OF THE REPORT IS AS UNDER: 'THE CONTENTION OF THE ASSESSEE IS NOT ACCEPTED, TH E ASSESSEE HAS FURNISHED THE DEBIT BALANCE OF THE BUNGALOW ONL Y AFTER THE SEARCH ACTION. THE REFERRED DIARY CONTAINED THE INV ESTMENTS MADE ON ACCOUNT OF THE BUNGALOW OUT OF THE CASH AVA ILABLE AND INTER TRANSFERRED WITHIN THE FAMILY MEMBERS. TH E ASSESSEE FURNISHED THE BALANCE SHEET IN REGARD TO VALUE OF T HE BUNGALOW AND A STATEMENT OF AVAILABILITY OF THE FUNDS. THE A SSESSEE DID NOT CORRELATE THE NOTHING OF THE SEIZED DOCUMENTS W ITH THE 19 INVESTMENTS NOR FURNISHED THE EVIDENCES OF SUCH INV ESTMENTS AT ANY TIME OF THE PROCEEDINGS. THE ASSESSEE RELIED ONLY ON HIS SUBMISSION AS SUBSTANTIVE BASE FOR CONSIDERATION. T HE CONTENTION OF THE ASSESSEE IS NOT ACCEPTED'. 6.3 THE COPY OF THE SAID REPORT OF THE ASSESSING OFFICER WAS SUPPLIED TO THE LEARNED AUTHORIZED REPRESENTATIVE O F THE ASSESSEE FOR HIS COMMENT. THE LEARNED AUTHORIZED REPRESENTAT IVE OF THE ASSESSEE HAS MADE WRITTEN SUBMISSION VIDE HIS LETTE R DATED 30.03.2012, WHICH IS AS UNDER: 'THE CONTENTION OF THE AO THAT THE APPELLANT HAS FU RNISHED ONLY DEBIT BALANCE OF BUNGALOW IS NOT CORRECT BECAU SE THE COMPLETE DETAILS OF DAY TO DAY EXPENSES INCURRED BY THE APPELLANT AND ACCOUNTED IN THE FINANCIAL STATEMENTS WERE FURNISHED TO THE A.O., IN WHICH IMPUGNED EXPENSES W ERE CLEARLY IDENTIFIABLE. THE ACTUAL NATURE WITH FACT O F EXPENSES WAS EXPLAINED. THE SOURCES FOR THE BUNGALOW CONSTRU CTION WERE ALSO REFLECTED IN THE BALANCE SHEET. IN BRIEF ALL THE EXPENSES ARE ALREADY CONSIDERED BY THE APPELLANT IN HIS FINANCIAL STATEMENTS. THE ACTUAL FACT THAT SOME OF THE EXPENSES WERE INCURRED BY DEEPAK MODI OUT OF THE FU NDS GIVEN TO HIM BY APPELLANT IS ALSO NOT IN DISPUTE. IN BRIE F, THE APPELLANT AS WELL AS HIS WIFE HAS ACCOUNTED THE ENT IRE EXPENSES IN THEIR STATEMENT OF AFFAIRS IS NOT IN DI SPUTE. IN SUCH CIRCUMSTANCES, THE A.O. SHOULD HAVE VERIFIED THE SO URCES OF THE SAME.' IN THIS BACKGROUND IT IS SUBMITTED THAT THE ADDIT ION MADE ON ACCOUNT OF UNEXPLAINED EXPENDITURE ON CONSTRUCTION OF BUNGALOW BE DELETED. THE CIT(A) HAVING CONSIDERED THE RIVAL SU BMISSIONS AND MATERIAL ON RECORD, DELETED THE ADDITION IN QUESTIO N. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENUE, INTER ALIA SUBMITTED THAT THE CIT(A) ERRED IN DELETING THE ADDITION ON A CCOUNT OF UNEXPLAINED EXPENDITURE IN THE CONSTRUCTION OF BUNG ALOW ON THE BASIS OF SEIZED DOCUMENTS AMOUNTING TO RS. 9,78,836 /-. ACCORDINGLY, THE ORDER OF CIT(A) BE SET ASIDE AND T HAT OF ASSESSING OFFICER BE RESTORED ON THE ISSUE. ON THE OTHER HAN D, THE LEARNED AUTHORIZED REPRESENTATIVE SUPPORTED THE ORDER OF CI T(A). 20 6.4 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND M ATERIAL ON RECORD, WE FIND THAT THE ASSESSING OFFICER HAS MADE ADDITION ON ACCOUNT OF UNEXPLAINED EXPENDITURE IN THE CONSTRUCT ION OF BUNGALOW ON THE BASIS OF SEIZED DOCUMENTS AMOUNTING TO 9,78,836/-. THE STAND OF THE ASSESSEE HAS BEEN THA T ALL THE EXPENSES ON CONSTRUCTION OF BUNGALOW WERE DISCLOSED IN THE BALANCE SHEET OF THE ASSESSEE AS WELL AS WIFE OF TH E ASSESSEE, WHICH WERE FOUND CORRECT ON THE BASIS OF DOCUMENTS PLACED IN THIS REGARD BEFORE CIT(A). THE ASSESSING OFFICER HAS NOT DISPU TED THE FACT THAT THE DISCLOSURE OF CONSTRUCTION OF BUNGALOW BY ASSES SEE AS WELL AS HIS WIFE IN THEIR BALANCE SHEETS. THE CONTENTIONS O F THE ASSESSING OFFICER IS THAT THE ASSESSEE HAS NOT FILED THE SUPP ORTING DOCUMENT OF THE EXPENSES ON BUNGALOW AS SHOWN BY HIM AND HIS WI FE IN THEIR BALANCE SHEET IS ILLOGICAL BECAUSE THE EVIDENCE OF EXPENSES ARE FOUND DURING THE COURSE OF SEARCH ACTION. HENCE, T HERE WAS NO NEED FOR THE ASSESSEE TO FILE AGAIN SUPPORTING EVID ENCES OF THE SAME AND THE INTERPRETATION OF THE SAID SEIZED RECORD AS MADE BY THE ASSESSING OFFICER WAS ACCEPTED BY THE ASSESSEE I.E. IN THE PRESENT CASE THE EXPENSES ON BUNGALOW AS PER NOTING ON THE SAID SEIZED DOCUMENTS WAS NOT DENIED BY THE ASSESSEE. THE ASSES SING OFFICER WAS ALSO NOT JUSTIFIED TO HOLD THAT THE ASSESSEE HA S NOT CORRELATED THE NOTING OF THE SEIZED MATERIAL WITH BUNGALOW ACC OUNT AS PER HIS BALANCE SHEET WAS NOT CORRECT BECAUSE THE CAPITAL A CCOUNT AS WELL AS BUNGALOW CONSTRUCTION ACCOUNT ALONG WITH ALL GRO UPINGS OF THE BALANCE SHEET WERE FURNISHED BY THE ASSESSEE WITH H IS SUBMISSION DATED 01.11.2011. THE ASSESSING OFFICER HAS SIMPLY OVERLOOKED THE SAME. IN VIEW OF THE ABOVE, THE CIT(A) WAS JUSTIFI ED IN OBSERVING THAT THE EXPENSES AS MENTIONED WERE DULY ACCOUNTED BY THE ASSESSEE AND SHOWN IN THEIR RESPECTIVE BALANCE SHEE TS. THEREFORE, THE ADDITION THEREOF MADE BY THE ASSESSING OFFICER AMOUNTING TO 9,78,836/- WAS NOT JUSTIFIED AND THE SAME HAS RIGHT LY BEEN DELETED BY THE CIT(A). THIS REASONED FACTUAL FINDING OF CI T(A) NEEDS NO INTERFERENCE FROM OUR SIDE. WE UPHOLD THE SAME. T HE ASSESSEE HAS 21 ALSO FILED CROSS OBJECTION, WHICH WAS NOT PRESSED, SO THE SAME IS DISMISSED AS NOT PRESSED. 7. AS A RESULT, THIS REVENUES APPEAL AS WELL AS CO RRESPONDING CROSS OBJECTION OF ASSESSEE, ARE DISMISSED. 8. IN ITA NO.1385/PN/2012 FOR A.Y. 2008-09, THE REV ENUE HAS FILED THE APPEAL ON THE FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDIT ION OF RECEIPT ON ACCOUNT OF CANCELLATION OF PROPERTY TRAN SACTION OF RS. 3,13,900/-. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN NOT APPRECIATING T HAT THERE IS NO EVIDENCE TO PROVE THAT HE SAID AMOUNT OF RS.3,13,900/- WAS ADVANCED TO THE PARTY CONCERNED P RIOR TO CANCELLATION OF THE TRANSACTION AND REJECTION THERE OF. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE DISAL LOWANCE OF PART OF AGRICULTURAL INCOME AT RS.52,753/-. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDIT ION ON ACCOUNT OF RECEIPT OF ADVANCE AGAINST PROPERTY AT R S. 28,84,010/- 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDIT ION ON ACCOUNT OF PAYMENT OF ADVANCE FOR PROPERTY AT RS. 16,00,000/-. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDIT ION ON ACCOUNT OF UNEXPLAINED EXPENDITURE IN THE CONSTRUCT ION OF BUNGALOW ON THE BASIS OF SEIZED DOCUMENTS AMOUNTING TO RS. 95,31,628/-. 7. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDIT ION ON ACCOUNT OF UNEXPLAINED EXPENDITURE ON THE BASIS OF SEIZED DOCUMENTS AMOUNTING TO RS. 12,279/- AND RS.205,650/ -. 22 8. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN IGNORING THE EVIDE NCE ON RECORD IN THE FORM OF INCRIMINATING MATERIALS ON TH E BASIS OF WHICH THE VARIOUS ADDITIONS WERE MADE, THUS RENDERI NG THE DECISION PERVERSE AND CONTRARY TO THE EVIDENCE ON R ECORD. 9. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY, D ELETE AMEND ANY OF THE GROUNDS, AS PER THE CIRCUMSTANCES OF THE CASE. 10. THE APPELLANT PRAYS LEAVE TO ADDUCE SUCH FURTHER EVIDENCE TO SUBSTANTIATE ITS CASE AS THE OCCASION M AY DEMAND. 9. THE FIRST ISSUE IS WITH REGARD TO THE ADDITION O F RECEIPT ON ACCOUNT OF CANCELLATION OF PROPERTY TRANSACTION OF 3,13,900/-. THE MAIN REASON GIVEN BY THE ASSESSING OFFICER FOR MAKI NG THE SAID ADDITION IS THAT THE ASSESSEE HAS NOT FURNISHED THE SUPPORTING DOCUMENTS LIKE SATHE KHAT, CANCELLATION DEED, ETC. AND THEREFORE THE ASSESSING OFFICER TREATED THE SAID TRANSACTION AS F ICTITIOUS IN NATURE OR MADE THROUGH FAKE OR FICTITIOUS PERSONS. 9.1 IN APPEAL BEFORE CIT(A), THE STAND OF THE ASSES SEE HAS BEEN THAT THE SAID ADVANCES GIVEN AS WELL AS REFUND OF T HE SAME WERE WELL DISCLOSED IN THE BALANCE SHEET OF THE ASSESSEE OF T HE RESPECTIVE YEARS. IT WAS FURTHER STATED ON BEHALF OF ASSESSEE THAT IN CASE THE ADVANCES WERE TREATED AS NOT GIVEN TO MR. AHIRE THE N TO THAT EXTENT CASH ON HAND OF THE ASSESSEE WOULD HAVE BEEN MORE A ND THEREFORE THERE IS NO EFFECT ON CASH POSITION OF THE ASSESSEE AND THE CONFIRMATION LETTER OF THE SAID PERSON ALONG WITH O THER DETAILS WAS ON THE RECORD. AGAINST THE ABOVE ADDITION, THE STA ND OF THE ASSESSEE BEFORE THE CIT(A) BY WAY OF WRITTEN SUBMISSION WAS AS UNDER: 'DURING THE YEAR UNDER REVIEW THE APPELLANT HAS REC EIVED REFUND OF ADVANCE OF RS. 3,13,900/- FROM MR. RAMCHA NDRA D AHIRE. THE ADVANCES FOR PURCHASE OF PROPERTY TOTALI NG TO RS. 3,87,400/- WERE GIVEN TO HIM, OUT OF WHICH RS. 3,70 ,000/- WERE GIVEN TO HIM DURING THE YEAR 2001-02 AND BALAN CE RS. 17,400/- WERE GIVEN TO HIM ON 14.02.2004. HOWEVER D UE TO CANCELLATION OF THE TERMS, THE SAID ADVANCE SO GIVE N WAS 23 RECEIVED BACK, OUT OF WHICH RS.3,13,900/- WAS RECEI VED DURING THE YEAR UNDER REVIEW AS REFUND OF THE SAID ADVANCE SO GIVEN. THE SAID ADVANCE WAS DULY DISCLOSED IN THE FINANCIA L STATEMENTS FOR YEARS TOGETHER. HOWEVER THE A.O. MAD E ADDITION THEREOF ON THE BASIS OF FOLLOWING REASONS. 1. THE APPELLANT HAS NOT SPECIFIED AS TO FOR WHICH PROPERTY THIS ADVANCE HAS BEEN MADE ANY WHY THE PROPOSED TRA NSACTION WAS RECEIVED BACK. 2. THE APPELLANT HAS NOT FURNISHED ANY DOCUMENTARY EVI DENCES SUCH AS SATHE KHAT, RECEIPTS, ETC. 3. THE APPELLANT HAS NOT FURNISHED THE PAN, ADDRESS OF THE CONCERNED PERSON. 4. THERE IS NO SUCH PERSON WITH WHOM SUCH TRANSACTION WAS IN WAY OF OFFING AND THEREFORE THERE LEAD TO ASSUMPTIO N THAT APPELLANT UNDER THE GUISE OF CREDITED ADVANCES FOR PURCHASE OF ASSET HAS TRIED INTRODUCED THE UNEXPLAINED MONIES T HROUGH USE OF FAKE AND FICTITIOUS PERSONS. 9.2 THE ACTUAL FACT AND SUBMISSION OF THE APPELLANT IN RESPECT OF ABOVE IS AS UNDER: 1. DURING THE YEAR UNDER REVIEW THE APPELLANT HAS RECE IVED REFUND OF ADVANCE GIVEN OF RS. 3,13,900/-. THE SAID ADVANCE WAS DULY DISCLOSED IN THE BALANCE SHEET OF T HE APPELLANT. THE APPELLANT WAS NOT AWARE OF SUCH REQUIREMENT OF THE A.O. BECAUSE THE A.O. HAS NOT SPECIFICALLY ASKED SU CH DETAILS. THE CONFIRMATION LETTER OF THE SAID PARTY WITH ADDR ESS OF THE SAME WAS ALSO FILED. THE REASONS FOR CANCELLATION O F THE SAID TRANSACTION WERE NOT ASKED BY THE A.O. AND THE REFU ND WAS RECEIVED IN CASH BECAUSE MR. AHIRE PAID THE SAM E IN CASH AND THE ASSESSEE WAS SUPPOSED TO RECEIVE THE SAID A MOUNT WHICH WAS STUCK UP WITH MR. AHIRE AND WHEN THE REFU ND OF THE ADVANCE WAS RECEIVED THE APPELLANT WAS NOT IN POSIT ION TO ASK FOR THE SAME THROUGH BANKING CHANNEL AS HE WAS UNDER FEAR OF HAVING BECAME THE SAID ADVANCE AS BAD. 2. THE A.O. HAS DISBELIEVED THE TRANSACTION FOR THE RE ASON THAT THE APPELLANT HAS NOT FURNISHED THE DOCUMENTARY EVI DENCE IN RESPECT OF THE SAID TRANSACTION. IN THIS RESPECT IT IS TO BE STATED THAT THE ABOVE CONTENTION OF THE A.O. IS MADE AS IF THE APPELLANT IS TAKEN ADVANCE FROM THE PARTY. THE A.O. , IN THE PRESENT CASE, HAS NOT APPRECIATED THAT THE APPELLAN T HAS NOT RECEIVED THE ADVANCE, WHAT HE HAS RECEIVED IS THE R EFUND OF 24 ADVANCE ALREADY GIVEN. FURTHER THE AGREEMENT, IF AN Y, WOULD BE WITH THE PERSON WHO HAS MADE ULTIMATE PAYMENT, W HICH IN THE PRESENT CASE WAS MADE BY MR. AHIRE. THE CONFIRM ATION OF THE SAID PARTY WAS FILED AND THEREAFTER NO QUERY WA S RAISED BY THE A.O. IN THIS RESPECT, THEREFORE THE APPELLANT W AS UNDER IMPRESSION THAT THE A.O. IS SATISFIED WITH THE SUBM ISSION MADE IN THIS BEHALF. HOWEVER WE KINDLY REQUEST YOUR HONO UR TO DIRECT A.O. TO VERIFY THE ACTUAL FACT WITH MR. RAMC HANDRA D AHIRE. 3. AS THE SAID PERSON, PROBABLY, WAS AGRICULTURIST, PE RHAPS HE WAS NOT HAVING PAN. HIS ADDRESS IS ON RECORD AS MEN TIONED ON THE ENCLOSED CONFIRMATION LETTER. FURTHER AS ON DAY OF THE COMPLIANCE THERE WAS NO ANY AMOUNT OUTSTANDING AS RECEIVABLE FROM THE SAID PARTY, IT WAS DIFFICULT TO GET COMPLETE COOPERATION FROM THE SAID PARTY, PARTICULARLY WHEN THE TRANSACTION WITH THE SAID PARTY WAS NOT MATERIALIZE D. 4. AFTER CAREFUL PERUSAL OF THE REASONS GIVEN BY TH E A.O. ON THIS ISSUE, IT TRANSPIRED THAT THE IMPUGNED ADDITION IS MADE BY THE A.O. UNDER THE ASSUMPTION THAT MR. RAMCHANDRA AHIRE IS NON-EXISTENT OR FICTITIOUS PERSON. SUCH DOUBT OF TH E A.O. IS BASELESS MAINLY WHEN THERE IS RECEIPT OF ADVANCE AL READY GIVEN AND WHICH WAS WELL REFLECTED IN THE FINANCIAL STATE MENTS OF THE APPELLANT AND IT IS NOT A CASE WHERE THERE IS ONLY CREDIT IN THE ACCOUNT OF THE SAID PARTY. HOWEVER THE COPY OF VOTE R IDENTITY CARD ISSUED BY ELECTION COMMISSION OF INDIA IS ENCL OSED HEREWITH AS A PROOF OF GENUINENESS OF THE PERSON. W E KINDLY REQUEST YOUR HONOUR TO ADMIT THE SAME AS ADDITIONAL EVIDENCE AS THE SAME WAS NOT FILED BEFORE THE A.O., BECAUSE THERE WAS NO ISSUE OF THE GENUINENESS OF THE PARTY AND THE AP PELLANT WAS NOT IN POSITION TO UNDERSTAND WHAT IS COOKING I N THE MIND OF THE A.O. THE DOUBT OF THE A.O. REGARDING THE ADVANCE SO GIVE N TO MR. AHIRE IS ABSOLUTELY BASELESS BECAUSE IF THE ADVANCE WAS NOT GIVEN TO MR. AHIRE THEN TO THAT EXTENT THE CASH ON HAND O F THE APPELLANT WOULD HAVE BEEN INCREASED, THEREFORE THERE IS NO EF FECT OF THE SAME ON THE CASH OF THE APPELLANT. THE IMPUGNED ADDITION IS NOT MADE BY THE A.O. ON TH E BASIS OF ANY SEIZED MATERIAL, HOWEVER THE IMPUGNED ADDITION IS MADE BY THE A.O. ON THE BASIS OF FINANCIAL STATEMENTS OF TH E APPELLANT. 25 THE NON APPLICATION OF MIND OF THE A.O. IS ALSO APP EARED FROM THE ORDER ITSELF BECAUSE HE HAS MADE REFERENCE TO THE PARA NOS. 3 & 4 AS CONFINING PARA AS MENTIONED IN THE SA ID ORDER, BUT THE FACT IS DIFFERENT. THEREFORE IN SUCH CIRCUMSTANCES, THE IMPUGNED ADDIT ION MADE BY THE A.O. PLEASE BE DELETED AS THE SAME IS MADE O N THE BASIS OF HYPOTHESIS AND WITHOUT APPLICATION OF MIND.' 9.3 THE SUBMISSION OF THE ASSESSEE WAS SENT TO ASS ESSING OFFICER FOR HIS COMMENTS, WHO VIDE HIS REPORT DATED 28.03.2012 STATED THAT THE CASH ADVANCES FORWARDED WERE RECEIV ED BACK IN CASH ONLY AS THE TRANSACTIONS WERE NEVER FINALIZED. ACCO RDING THE ASSESSING OFFICER, THE ASSESSEE USED THIS MODUS OPE RANDI TO INTRODUCE HIS OWN UNACCOUNTED AND UNEXPLAINED MONIE S BY WAY OF CASH ADVANCES FORWARDED AND RECEIVED WITHIN THE FAM ILY OR HIS LOYAL PERSONS. THE RELEVANT PORTION OF THE REPORT IS AS U NDER: 'THE ASSESSEE HIMSELF ADMITTED THAT THE ADVANCE AGA INST PROPERTY WAS REFUNDED DUE TO CANCELLATION OF THE TE RMS. IN THE ASSESSMENT ORDER, THE SAME STAND WAS HIGHLIGHTED TH AT THE CASH ADVANCES WERE INTRODUCED BY THE WAY THAT WERE RECEIVED BACK IN CASH ONLY AS THE TRANSACTIONS WERE NEVER FI NALIZED. THE ASSESSEE USED THIS MODUS OPERANDI TO INTRODUCE HIS OWN UNACCOUNTED AND UNEXPLAINED MONIES BY WAY OF CASH ADVANCES FORWARDED AND RECEIVED WITHIN THE FAMILY O R HIS LOYAL PERSONS. AT THE APPELLATE STAGE, THE ASSESSEE BUYS TIME TO MANAGE THE SAID AFFAIR BY CONCOCTING THE ISSUE ACCO RDING TO HIS COMFORT. THE ISSUE WAS ASKED TIMELY TO PROVING THE GENUINENESS THAT WAS NOT AVAILED BY THE ASSESSEE DU RING THE ASSESSMENT PROCEEDINGS. HOWEVER, THE CASH ADVANCED FORWARDED OR RECEIVED ARE VERY APPARENT LATER ON CA NCELLED IN EACH CASE AND REFUNDED OR RECEIVED BACK BY THE ASSE SSEE. HENCE, THE CONTENTION OF THE ASSESSEE IS FABRICATED AND HAS NO EVIDENTIAL STRENGTH.' 9.4 THE COPY OF THE REPORT OF THE ASSESSING OFF ICER WAS SUPPLIED TO THE LEARNED AUTHORIZED REPRESENTATIVE OF THE ASS ESSEE FOR HIS 26 COMMENTS AND HE HAS MADE COUNTER COMMENTS VIDE HIS LETTER DATED 30.03.2012, WHICH IS AS UNDER: 'THE SAID ADVANCES WHICH WERE GIVEN AND ALSO THE RE FUND OF THE SAME ARE VERY WELL DISCLOSED IN THE BALANCE SHE ET OF THE APPELLANT. THE DOUBT OF THE A.O. REGARDING THE ADVA NCE SO GIVEN TO MR. AHIRE IS BASELESS BECAUSE IF THE ADVAN CE WAS NOT GIVEN TO MR. AHIRE THEN TO THAT EXTENT THE CASH ON HAND OF THE APPELLANT WOULD HAVE BEEN INCREASED, THEREFORE THER E IS NO EFFECT OF THE SAME ON THE CASH OF THE APPELLANT. T HIS IS NOT A CASE OF TAKING ANY LOAN OR ADVANCES OR CREATION OF ANY LIABILITY.' IN THIS BACKGROUND THE AUTHORIZED REPRESENTATIVE S UBMITTED TO DELETE THE IMPUGNED ADDITION MADE ON ACCOUNT OF REFUND OF ADVANCE RECEIVED BY THE ASSESSEE. AGREEING TO THE SAME, THE ADDITION IN QUESTION WAS DELETED BY THE CIT(A). TH E SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENUE, INTER ALIA SUBMITTED THAT THE CIT(A) ERRED IN DELETING THE ADDITION OF RECEIP T ON ACCOUNT OF CANCELLATION OF PROPERTY TRANSACTION OF RS. 3,13,90 0/-. ACCORDINGLY, THE ORDER OF CIT(A) BE SET ASIDE AND THAT OF ASSESS ING OFFICER BE RESTORED ON THE ISSUE. ON THE OTHER HAND, THE LEAR NED AUTHORIZED REPRESENTATIVE SUPPORTED THE ORDER OF CIT(A) ON THE ISSUE. 9.5 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND M ATERIAL ON RECORD, WE FIND THAT THE IMPUGNED ADVANCES AS WELL AS REFUND OF THE SAME WERE SHOWN IN THE BALANCE SHEET OF THE ASSESSE E OF THE RESPECTIVE YEARS. THE IMPUGNED ADDITION IS MADE BY THE ASSESSING OFFICER WITHOUT OBSERVING THE MAIN PRINCIPLES OF AC COUNTING AS WELL AS TAX LAWS BECAUSE THE SOURCES OF GIVING THE AD VANCE ARE NOT IN DISPUTE, THEN IN SUCH CIRCUMSTANCES, IF THE IMPUG NED ADVANCE WAS NOT GIVEN THEN, THERE WOULD HAVE BEEN NO CHANGE ON THE CASH POSITION OF THE ASSESSEE. THE ALLEGATION OF THE ASS ESSING OFFICER THAT THE ACCOUNTS OF THE ASSESSEE WERE FINALIZED ONLY AF TER THE SEARCH ACTION, WAS NOT JUSTIFIED BECAUSE THE ASSESSEE HAS ALWAYS SUBMITTED THE ABRIDGED CASH POSITIONS AS WELL AS EXTRACTS OF ACCOUNTS OF THE 27 RELEVANT PARTIES, ETC. WITH THE ORIGINAL RETURN OF INCOME UNTIL NEW SCHEME OF E-FILING OF RETURN OF INCOME WAS INTRODUC ED. THE CONTENTION OF THE ASSESSING OFFICER TO DISBELIEVE T HE TRANSACTION WITH MR. AHIRE THAT THE SAME IS NOT APPEARING IN TH E CAPITAL ACCOUNT WAS RIGHTLY FOUND ILLOGICAL BY THE CIT(A) BECAUSE W HEN THE AMOUNT GIVEN IS SHOWN AS RECEIVABLE IN THE BALANCE SHEET, THEN THE SAME WOULD NEVER APPEAR IN THE CAPITAL ACCOUNT. FURTHER, THE ASSESSING OFFICER HAS IGNORED THE FACT THAT THIS IS NOT A CAS E WHERE ANY LOAN OR DEPOSIT OR ADVANCE IS TAKEN OR CREDITED. IN THE INS TANT CASE, THE AMOUNT ALREADY ADVANCED WAS CLAIMED TO BE RECEIVED BACK BY THE ASSESSEE. THE ASSESSING OFFICER HAS NEITHER NEGATED THE CONTENTIONS OF THE ASSESSEE WITH ANY EVIDENCE, NOR HAS CARRIED OUT ANY INQUIRIES TO NEGATE THE EXPLANATION OF THE ASSESSEE AND CONFI RMATION OF THE PARTY FILED IN THIS RESPECT. IN VIEW OF ABOVE AND ALSO IN THE LIGHT OF THE CONFIRMATION OF THE SAID PARTY, THE ADDITION MA DE BY THE ASSESSING OFFICER OF 3,13,900/- ON ACCOUNT OF REFUND OF ADVANCES WAS RIGHTLY HELD UNJUSTIFIED AND THE SAME WAS RIGHT LY DELETED BY THE CIT(A) BY REASONED FACTUAL FINDING. THE SAME NEEDS NO INTERFERENCE FROM OUR SIDE. WE UPHOLD THE SAME. 10. THE NEXT ISSUE RELATES TO THE DISALLOWANCE OF 50% OF AGRICULTURAL INCOME OF 52,753/- MADE BY ASSESSING OFFICER FOR THE REASON THAT THE ASSESSEE HAS NOT FURNISHED THE SUPP ORTING EVIDENCES LIKE SALE PATTIS, MARKET CERTIFICATES BIL LS FOR FERTILIZERS, ETC. TO SUBSTANTIATE THE CORRECTNESS OF THE AGRICULTURAL INCOME. 10.1 THE MATTER WAS CARRIED BEFORE FIRST APPEL LATE AUTHORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF ASSESSEE AND CIT(A) HAVING CALLED FOR REMAND REPORT FROM THE CONCERNED ASSESSING OFFICER AND HAVING CALLED COMMENTS OF ASS ESSEE AND CONSIDERING THE SAME, HAS DELETED THE ADDITION IN Q UESTION. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENU E INTER ALIA SUBMITTED THAT THE CIT(A) ERRED IN DELETING THE DIS ALLOWANCE OF PART 28 OF AGRICULTURAL INCOME OF 52,753/-, ACCORDINGLY, THE SAME SHOULD BE SET ASIDE AND THAT OF ASSESSING OFFICER BE RESTO RED ON THE ISSUE. ON THE OTHER HAND, THE LEARNED AUTHORIZED REPRESENT ATIVE SUPPORTED THE ORDER OF CIT(A) ON THE ISSUE. 10.2 AFTER GOING THROUGH THE RIVAL SUBMISSION S AND MATERIAL ON RECORD, WE FIND THAT A SIMILAR ISSUE AROSE IN ITA N O.1384/PN/2012 FOR A.Y. 2007-08 IN ASSESSEES OWN CASE, WHEREIN IN SIMILAR FACTS AND CIRCUMSTANCES, WE HAVE DECIDED THE ISSUE IN FAV OUR OF ASSESSEE VIDE PARA 4 OF THIS ORDER. FACTS BEING SIMILAR, SO FOLLOWING THE SAME REASONING, WE UPHOLD THE ORDER OF CIT(A), WHO HAS R IGHTLY DELETED THE ADDITION OF 52,753/- BEING 50% OF AGRICULTURAL INCOME. 11. NEXT ISSUE IS WITH REGARD TO ADDITION ON ACC OUNT OF ADVANCE OF 28,84,010/- SHOWN TO BE RECEIVED AGAINST THE PROPE RTY AS PER BALANCE SHEET. FACTS OF THE ISSUE INVOLVED IS THA T THERE WAS CREDIT BALANCE IN THE BALANCE SHEET OF THE ASSESSEE OF 28,84,010/- IN THE NAME OF FAMILY MEMBERS. THE ASSESSING OFFICER MADE THE ADDITION THEREOF. 11.1 THE MATTER WAS CARRIED BEFORE FIRST APPELLATE AUTHORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF ASSESSEE AND HAVING CALLED FOR REMAND REPORT FROM THE ASSESS ING OFFICER AND AFTER CALLING THE COMMENTS THEREON FROM AUTHORIZED REPRESENTATIVE ON BEHALF OF ASSESSEE, THE CIT(A) GRANTED THE RELIE F TO THE ASSESSEE. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF RE VENUE. ON THE OTHER HAND, THE LEARNED AUTHORIZED REPRESENTATIVE H AS SUPPORTED THE ORDER OF CIT(A) ON THIS ISSUE. 11.2 WE FIND THAT A SIMILAR ISSUE AROSE IN ASSESSE ES OWN CASE FOR A.Y. 2007-08 IN ITA NO.1384/PN/2012, WHEREIN WE HAVE DECIDED A SIMILAR ISSUE IN FAVOUR OF ASSESSEE BY UP HOLDING THE ORDER OF CIT(A) VIDE PARA 5 OF THIS ORDER. FACTS BEING S IMILAR, SO FOLLOWING THE SAME REASONING, WE ARE NOT INCLINED TO INTERFER E WITH THE FINDING 29 OF CIT(A), WHO HAS RIGHTLY BEEN DELETED THE ADDITIO N MADE ON ACCOUNT OF ADVANCE OF 28,84,010/- AGAINST THE PROPERTY BY THE ASSESSING OFFICER. WE UPHOLD THE SAME. 12. THE NEXT ISSUE IS WITH REGARD TO ADDITION OF 16,00,000/- ON ACCOUNT OF ADVANCE GIVEN TO MR. HEMANT MODI IN CASH . THE SAID TRANSACTION WAS DULY RECORDED IN THE BALANCE SHEETS OF ASSESSEE AS WELL AS MR. HEMANT MODI. THE ASSESSING OFFICER HAS ADDED THE IMPUGNED ADVANCE FOR THE REASONS MENTIONED IN THE A SSESSMENT ORDER. 12.1 THE MATTER WAS CARRIED BEFORE FIRST APPELLATE AUTHORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF ASSESSEE AND HAVING CALLED FOR THE REMAND REPORT FROM ASSESS ING OFFICER AND COMMENTS FROM THE AUTHORIZED REPRESENTATIVE ON BEHA LF OF ASSESSEE, THE CIT(A) HAS DELETED THE ADDITION OF 16,00,000/- MADE BY ASSESSING OFFICER ON ACCOUNT OF ADVANCE GIVEN TO MR. HEMANT MODI. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHAL F OF REVENUE, INTER ALIA SUBMITTED THAT THE CIT(A) ERRED IN DELET ING THE ADDITION ON ACCOUNT OF PAYMENT OF ADVANCE FOR PROPERTY AT RS. 1 6,00,000/- AND REQUESTING TO SET ASIDE THE ORDER OF CIT(A) ON THE ISSUE AND THAT OF ASSESSING OFFICER BE RESTORED. ON THE OTHER HAND, THE LEARNED AUTHORIZED REPRESENTATIVE SUPPORTED THE ORDER OF CI T(A) ON THE ISSUE. 12.2 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATERIAL ON RECORD, WE FIND THAT THE ADVANCES GIVEN TO MR. H EMANT MODI WERE DISCLOSED IN THE BALANCE SHEET OF THE ASSESSEE AT ASSET SIDE AS ADVANCE GIVEN AND AT THE SAME TIME IT IS ALSO UNDIS PUTED FACT THAT MR. HEMANT MODI HAS ALSO SHOWN IN HIS BALANCE SHEET THE IMPUGNED TRANSACTION OF RECEIPT OF ADVANCE FROM THE ASSESSEE. THE IMPUGNED ADDITION IS MADE BY THE ASSESSING OFFICER IS TOTALLY ON SURMISES AND NOT BASED ON CONCRETE FINDINGS. THE M OOT POINT HERE IS THAT THE IMPUGNED ADVANCE WHETHER FICTITIOUS OR OTHERWISE WAS 30 DULY DISCLOSED BY THE ASSESSEE IN HIS FINANCIAL STA TEMENT AT ASSETS SIDE. ONCE THE SOURCE THEREOF WAS EXPLAINED, THERE WAS NO PROVISION UNDER THE LAW TO TAX THE SAID TRANSACTION . THE ASSESSEE WAS HAVING ENOUGH SOURCES OF FUND TO JUSTIFY THE SA ID ADVANCE AS HE HAS OFFERED ADDITIONAL INCOME OF 40,00,000/- DURING THE YEAR. THERE IS NO DISPUTE AS REGARDS THE SOURCE OF INVEST MENT BECAUSE THE ADVANCE RECEIVED FROM DINESHKUMAR LODHA, SAMYAK LOD HA, SUNIL RUNWAL & HEMANT MODI HAS ALREADY BEEN HELD AS GENUI NE BY THE CIT(A). THE ACTUAL NATURE OF TRANSACTION MAY BE DI FFERENT OR THE SAME MAY BE TEMPORARY LOANS, ETC. BUT THAT WOULD NO T MAKE THE SAID TRANSACTION AS TAXABLE IN THE HANDS OF THE ASS ESSEE MAINLY BECAUSE THE SOURCE THEREOF IS EXPLAINED. THE APPROA CH OF THE ASSESSING OFFICER IN TAXING THE LIABILITIES AND ASS ETS AT THE SAME TIME IS NOT JUSTIFIED. THEREFORE, THE CIT(A) WAS J USTIFIED IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOU NT OF ADVANCE AMOUNTING TO 16,00,000/- GIVEN TO MR. HEMANT MODI. THIS REASONED FINDING OF CIT(A) NEEDS NO INTERFERENCE FR OM OUR SIDE. WE UPHOLD THE SAME. 13. THE NEXT ISSUE IS WITH REGARD TO ADDITION OF 95,31,626/- MADE ON ACCOUNT OF UNEXPLAINED EXPENDITURE INCURRED ON CONSTRUCTION OF BUNGALOW. DURING THE COURSE OF SEA RCH ACTION CERTAIN DOCUMENTS MARKED AS ANNEXURE A-3/2 & A-31 A ND A-3/24 WERE FOUND AND SEIZED WHICH CONTAINED SOME DETAILS OF THE EXPENSES ON THE CONSTRUCTION OF BUNGALOW OF THE ASS ESSEE. THE ASSESSING OFFICER MADE AN ADDITION THEREOF FOR THE REASONS MENTIONED IN THE ASSESSMENT ORDER. 13.1 THE MATTER WAS CARRIED BEFORE FIRST APPELLATE AUTHORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF ASSESSEE AND HAVING CALLED FOR THE REMAND REPORT FROM THE AS SESSING OFFICER AND COMMENTS FROM THE AUTHORIZED REPRESENTATIVE ON BEHALF OF ASSESSEE, THE CIT(A) HAS GRANTED THE RELIEF TO THE ASSESSEE. THE 31 SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENU E. ON THE OTHER HAND, THE AUTHORIZED REPRESENTATIVE HAS SUPPO RTED THE ORDER OF CIT(A) ON THE ISSUE. 13.2 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATERIAL ON RECORD, WE FIND THAT, WE FIND THAT A SIMILAR ISS UE AROSE IN ASSESSEES OWN CASE FOR A.Y. 2007-08 IN ITA NO.1384 /PN/2012, WHERE WE HAVE DECIDED THE ISSUE IN FAVOUR OF ASSESS EE VIDE PARA 6 OF THIS ORDER. FACTS BEING SIMILAR, SO FOLLOWING THE SAME REASONING, WE ARE NOT INCLINED TO INTERFERE WITH THE FINDING OF C IT(A), WHO HAS RIGHTLY BEEN DELETED THE ADDITION 95,31,626/- MADE BY ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED EXPENDITURE INCUR RED ON CONSTRUCTION OF BUNGALOW. WE UPHOLD THE SAME. THE ASSESSEE HAS ALSO FILED CROSS OBJECTION, WHICH WAS NOT PRESSED, SO THE SAME IS DISMISSED AS NOT PRESSED. 14. AS A RESULT, THIS APPEAL OF REVENUE AS WELL AS CORRESPONDING CROSS OBJECTION OF ASSESSEE, ARE DISMISSED. 15. IN ITA NO.1386/PN/2012 FOR A.Y. 2009-10, THE RE VENUE HAS FILE THE APPEAL ON THE FOLLOWING GROUNDS. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A), ERRED IN DELETING THE ADDI TION OF RS. 32,932/- MADE BY DISALLOWANCE OF PART OF AGRICULTUR E INCOME SHOWN IN THE RETURN. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDIT ION ON ACCOUNT OF RECEIPT OF ADVANCE FOR PROPERTY AT RS. 10,50,000/-. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDIT ION ON ACCOUNT OF PAYMENT OF ADVANCE AGAINST PROPERTY AT R S. 5,60,000/-. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDIT ION ON 32 ACCOUNT OF UNEXPLAINED EXPENDITURE MADE ON THE BASI S OF SEIZED DOCUMENTS IN THE CONSTRUCTION OF BUNGALOW AMOUNTING TO RS. 41,97,432/- 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDIT ION ON ACCOUNT OF INVESTMENT IN SILVER ARTICLES OF RS.10,6 9,291/-. 6. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AN D IN LAW, THE LEARNED CIT(A), ERRED IN IGNORING THE EVIDENCE ON RECORD IN THE FORM OF INCRIMINATING MATERIALS ON THE BASIS OF WHICH THE VARIOUS ADDITIONS WERE MADE, THUS RENDERING THE DECISION PERVERSE AND CONTRARY TO THE EVIDENCE ON R ECORD. 7. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY, D ELETE AMEND ANY OF THE GROUNDS, AS PER THE CIRCUMSTANCES OF THE CASE. 8. THE APPELLANT PRAYS LEAVE TO ADDUCE SUCH FURTHER EV IDENCE TO SUBSTANTIATE ITS CASE AS THE OCCASION MAY DEMAND . 16. THE FIRST ISSUE IS WITH REGARD TO DISALLOWAN CE OF 50% OF AGRICULTURAL INCOME OF 32,932/- MADE BY THE ASSESSING OFFICER. 16.1 THE MATTER WAS CARRIED BEFORE FIRST APPELLATE AUTHORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF ASSESSEE AND HAVING CALLED FOR REMAND REPORT FROM THE ASSESS ING OFFICER AND COMMENTS FROM AUTHORIZED REPRESENTATIVE ON BEHALF O F ASSESSEE, THE CIT(A) HAS GRANTED RELIEF TO THE ASSESSEE. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENUE. ON THE OTH ER HAND, THE LEARNED AUTHORIZED REPRESENTATIVE HAS SUPPORTED THE ORDER OF CIT(A) ON THE ISSUE. 16.2 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATERIAL ON RECORD ON THE ISSUE, WE FIND THAT A SIMILAR ISSU E AROSE IN ASSESSEES OWN CASE FOR A.Y. 2007-08 IN ITA NO.1384 /PN/2012, WHERE THE ISSUE HAS BEEN DECIDED IN FAVOUR OF ASSES SEE BY UPHOLDING THE ORDER OF CIT(A) VIDE PARA 4 OF THIS O RDER AND FOLLOWED THE SAME IN A.Y. 2008-09 IN ITA NO.1385/PN/2012. F ACTS BEING 33 SIMILAR, SO FOLLOWING THE SAME REASONING, WE ARE NO T INCLINED TO INTERFERE WITH THE FINDING OF CIT(A) WHEREBY, HE HA S DELETED THE ADDITION IN QUESTION. WE UPHOLD THE SAME. 17. THE NEXT ISSUE IS WITH REGARD TO ADDITION MAD E BY ASSESSING OFFICER ON ACCOUNT OF ADVANCE OF 10,50,000/- SHOWN TO BE RECEIVED AGAINST THE PROPERTY AS PER BALANCE SHEET. 17.1 THE MATTER WAS CARRIED BEFORE FIRST APPELLATE AUTHORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF ASSESSEE AND HAVING CALLED FOR REMAND REPORT FROM ASSESSING OFFICER AND COMMENTS FROM AUTHORIZED REPRESENTATIVE ON BEHALF O F ASSESSEE, THE CIT(A) HAS GRANTED THE RELIEF TO THE ASSESSEE. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENUE. ON TH E OTHER HAND, THE LEARNED AUTHORIZED REPRESENTATIVE HAS SUPPORTED THE ORDER OF CIT(A) ON THE ISSUE. 17.2 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATERIAL ON RECORD, WE FIND THAT A SIMILAR ISSUE AROSE IN TH E ASSESSEES OWN CASE IN A.Y. 2007-08, WHEREIN WE HAVE DECIDED THE S IMILAR ISSUE IN FAVOUR OF ASSESSEE VIDE PARA 5 OF THIS ORDER AND TH E SAME FOLLOWED IN A.Y. 2008-09. FACTS BEING SIMILAR, SO FOLLOWING TH E SAME REASONING, WE ARE NOT INCLINED TO INTERFERE WITH THE FINDING O F CIT(A) WHO HAS RIGHTLY DELETED THE ADDITION OF 10,50,000/- MADE BY ASSESSING OFFICER ON ACCOUNT OF ADVANCE. WE UPHOLD THE SAME. 18. THE NEXT ISSUE IS WITH REGARD TO ADDITION MAD E BY ASSESSING OFFICER OF 5,60,000/- ON ACCOUNT OF ADVANCE GIVEN TO MR. VIJAYKUMAR LODHA HUF IN CASH. 18.1 THE MATTER WAS CARRIED BEFORE FIRST APPELLATE AUTHORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF ASSESSEE AND HAVING CALLED FOR REMAND REPORT FROM ASSESSING OFFICER AND COMMENTS FROM AUTHORIZED REPRESENTATIVE ON BEHALF O F ASSESSEE, 34 THE CIT(A) HAS GRANTED THE RELIEF TO THE ASSESSEE. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENUE. ON TH E OTHER HAND, THE LEARNED AUTHORIZED REPRESENTATIVE HAS SUPPORTED THE ORDER OF CIT(A) ON THE ISSUE. 18.2 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATERIAL ON RECORD, WE FIND IT UNDISPUTED THAT THE ADVANCE G IVEN TO MR. VIJAYKUMAR LODHA, HUF WAS DISCLOSED IN THE BALANCE SHEET OF ASSESSEE AT ASSETS SIDE AS ADVANCE GIVEN AND AT THE SAME TIME, IT WAS ALSO FOUND UNDISPUTED THAT MR. VIJAYKUMAR LODHA , HUF HAS SHOWN THE SAME IN HIS BALANCE SHEET. THE IMPUGNED ADDITION MADE BY ASSESSING OFFICER WAS NOT JUSTIFIED BECAUSE THE ASSESSEE WAS HAVING ENOUGH SOURCES OF FUNDS TO JUSTIFY THE SAID ADVANCE AS HE HAS OFFERED AN ADDITIONAL INCOME OF 46 LACS DURING THE YEAR. THE ASSESSING OFFICER WAS NOT JUSTIFIED TO ASK FOR AGRE EMENT, ETC. PARTICULARLY WHEN THERE WAS NO DISPUTE AS REGARDS T HE SOURCE OF INVESTMENT, BECAUSE THE ADVANCE RECEIVED FROM MR. D INESHKUMAR LODHA AND MR. SUNIL RUNWAL WERE ALREADY HELD GENUIN E BY THE CIT(A). THE APPROACH OF ASSESSING OFFICER IN TAXIN G LIABILITY AND ASSETS AT THE SAME TIME NOT LOGICAL. IN VIEW OF AB OVE FACTUAL AND LEGAL DISCUSSION, THE ASSESSING OFFICER WAS NOT JUS TIFIED IN MAKING THE ADDITION OF 5,60,000/- ON ACCOUNT OF ADVANCE GIVEN TO MR. VIJAYKUMAR LODHA, HUF. THE SAME WAS RIGHTLY DELETE D BY THE CIT(A). WE UPHOLD THE SAME. 19. THE NEXT ISSUE IS WITH REGARD TO THE ADDITION OF 41,97,432/- MADE BY ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED EXPENDITURE INCURRED ON BUNGALOW CONSTRUCTION. 19.1 THE MATTER WAS CARRIED BEFORE FIRST APPELLATE AUTHORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF ASSESSEE AND HAVING CALLED FOR REMAND REPORT FROM ASSESSING OFFICER AND COMMENTS FROM AUTHORIZED REPRESENTATIVE ON BEHALF O F ASSESSEE, 35 THE CIT(A) HAS GRANTED THE RELIEF TO THE ASSESSEE V IDE PARA 9.4 OF HIS ORDER. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHA LF OF REVENUE. 19.2 IN THIS REGARD, WE FIND THAT A SIMILAR ISSUE AROSE IN THE ASSESSEES OWN CASE IN A.Y. 2007-08, WHEREIN WE HAV E DECIDED THE ISSUE IN FAVOUR OF ASSESSEE VIDE PARA 6 OF THIS ORD ER AND THE SAME HAS BEEN FOLLOWED IN A.Y. 2008-09. FACTS BEING SIM ILAR, SO FOLLOWING THE SAME REASONING, WE ARE NOT INCLINED TO INTERFER E WITH THE FINDING OF CIT(A) WHO HAS RIGHTLY DELETED THE ADDITION IN Q UESTION. WE UPHOLD THE SAME. 20. THE NEXT ISSUE IS WITH REGARD TO ADDITION OF 10,69,291/- MADE ON ACCOUNT OF EXPENDITURE ON PURCHASE OF SILVE R UTENSILS. DURING THE COURSE OF SEARCH ACTION, SOME NOTING WER E FOUND AS PER DOCUMENTS PLACED IN ANNEXURE NO. A-3/21 WHICH IN TH E OPINION OF THE ASSESSING OFFICER WERE REGARDING THE PURCHASE O F SILVER UTENSILS. THEREFORE, ON THE BASIS OF THE SAID NOTING, THE ASS ESSING OFFICER HELD THAT THE SAID SILVER UTENSILS WERE PURCHASED BY THE ASSESSEE DURING THE YEAR UNDER REVIEW. ACCORDINGLY, HE MADE ADDITIO N THEREOF OF 10,69,291/- FOR THE REASON THAT THE ASSESSEE FAILED TO EXPLAIN THE SOURCES OF THE SAID INVESTMENT. 20.1 THE MATTER WAS CARRIED BEFORE FIRST APPELLATE AUTHORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF ASSESSEE AND HAVING CALLED FOR REMAND REPORT FROM ASSESSING OFFICER AND COMMENTS FROM AUTHORIZED REPRESENTATIVE ON BEHALF O F ASSESSEE, THE CIT(A) HAS GRANTED THE RELIEF TO THE ASSESSEE. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENUE, INTER ALIA SUBMITTED THAT THE CIT(A) ERRED IN DELETING THE ADDITION ON A CCOUNT OF INVESTMENT IN SILVER ARTICLES OF RS.10,69,291/- AND REQUESTED TO SET ASIDE THE ORDER OF CIT(A) ON THE ISSUE AND THAT OF ASSESSING OFFICER BE RESTORED. ON THE OTHER HAND, THE LEARNED AUTHOR IZED REPRESENTATIVE SUPPORTED THE ORDER OF CIT(A) ON THE ISSUE. 36 20.2 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATERIAL ON RECORD, WE FIND THAT THE IMPUGNED PURCHASE OF SI LVER UTENSILS IS RELATED TO THE MARRIAGE OF SHAISHVEE I.E. DAUGHTER OF THE ASSESSEE, WHICH TOOK PLACE IN THE F.Y. 2002-03. IN FACT, THE INITIAL ONUS IS ON THE ASSESSING OFFICER TO ESTABLISH THAT THE SAID PU RCHASES WERE AFFECTED DURING THE YEAR UNDER APPEAL. THE ASSESSI NG OFFICER NEVER DISCHARGED THE SAID ONUS CASTED ON HIM. ON THE CONT RARY, WHEN THE LEARNED AUTHORIZED REPRESENTATIVE HAS SPECIFICALLY POINTED OUT THE PROOFS OF ACTUAL TIME OF PURCHASE OF THE SAID SILVE R UTENSILS FROM THE SAME SIZED MATERIAL, THE ASSESSING OFFICER INSTEAD OF VERIFYING THE SAME IS ASKING FOR THE BILLS, ETC TO PROVE THE CLAI M OF THE ASSESSEE. THE ASSESSING OFFICER WAS NOT JUSTIFIED TO HAVE ADH OC APPROACH WHILE DEALING WITH THE CLAIMS OF THE ASSESSEE. THE RE IS NOTHING ON RECORD TO SUGGEST THAT TO TREAT THE SAID PURCHASES OF SILVER UTENSILS AS MADE DURING THE YEAR UNDER APPEAL. THE CLAIM OF THE ASSESSEE HAS BEEN THAT THE QUANTITY OF SILVER FOUND DURING T HE COURSE OF SEARCH ACTION IS NOT EXCESS OF THE SOURCES OF THE S AME AS EXPLAINED BY THE ASSESSEE WAS NOT REBUTTED BY THE ASSESSING O FFICER. THEREFORE, IN THE ABOVE FACTUAL BACKGROUND, THE ASS ESSING OFFICER WAS NOT JUSTIFIED TO MAKE ADDITION ON ACCOUNT OF PU RCHASE OF SILVER UTENSILS AS THE SAME WAS NOT INCURRED DURING THE YE AR UNDER APPEAL. THEREFORE, THE SAME HAS RIGHTLY BEEN DELET ED BY THE CIT(A). THIS FACTUAL REASONING NEEDS NO INTERFERENCE FROM O UR SIDE. WE UPHOLD THE SAME. THE ASSESSEE HAS ALSO FILED CROSS OBJECTION, WHICH WAS NOT PRESSED, SO THE SAME IS DISMISSED AS NOT PR ESSED. 21. AS A RESULT, THIS APPEAL FILED BY REVENUE AS WE LL AS THE CORRESPONDING CROSS OBJECTION OF ASSESSEE, ARE DISM ISSED. 22. IN ITA NO.1820/PN/2012 FOR A.Y. 2010-11, THE RE VENUE HAS FILED THE APPEAL ON THE FOLLOWING GROUNDS. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE DISAL LOWANCE OF 37 PART OF AGRICULTURE INCOME AT RS. RS. 47,708/- EVEN THOUGH THE ASSESSEE HAS NOT PRODUCED ANY COGENT EVIDENCE I N RESPECT OF HIS CLAIM OF THE AGRICULTURAL INCOME. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDIT ION ON ACCOUNT OF PAYMENT OF ADVANCE FOR PROPERTY AT RS. 4,79,500/- EVEN THOUGH THE ASSESSEE COULD NOT ESTAB LISH THE SOURCE OF THE ADVANCE OF RS. 4,79,500/- WITH AN Y COGENT EVIDENCE. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) FAILED TO APPRECIATE THAT T HE DECLARATION OF ADDITIONAL INCOME OF RS. 17,66,670/- WAS MADE UNDER SECTION 132(4) OF THE ACT AND WAS BASED ON INCRIMINATING EVIDENCE FOUND DURING THE COURSE OF S EARCH AND SEIZURE OPERATIONS. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) HAS ERRED IN IGNORING THE E VIDENCE ON RECORD IN THE FORM OF INCRIMINATING MATERIALS ON THE BASIS OF WHICH THE VARIOUS ADDITIONS WERE MADE, THU S RENDERING THE DECISION PERVERSE AND CONTRARY TO THE EVIDENCE ON RECORDS. 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY, D ELETE AMEND ANY OF THE GROUNDS, AS PER THE CIRCUMSTANCES OF THE CASE. 6. THE APPELLANT PRAYS LEAVE TO ADDUCE SUCH FURTHER EV IDENCE TO SUBSTANTIATE ITS CASE AS OCCASION MAY DEMAND. 23. THE FIRST ISSUE IS WITH REGARD TO DISALLOWANCE OF 50% OF AGRICULTURAL INCOME OF 47,708/- MADE BY THE ASSESSING OFFICER. 23.1 THE MATTER WAS CARRIED BEFORE FIRST APPELLATE AUTHORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF ASSESSEE AND HAVING CALLED FOR REMAND REPORT FROM ASSESSING OFFICER AND COMMENTS FROM AUTHORIZED REPRESENTATIVE ON BEHALF O F ASSESSEE, THE CIT(A) HAS GRANTED THE RELIEF TO THE ASSESSEE. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENUE. IN TH IS REGARD, WE FIND THAT A SIMILAR ISSUE AROSE IN THE ASSESSEES O WN CASE IN A.Y. 2007-08, WHEREIN WE HAVE DECIDED THE ISSUE IN FAVOU R OF ASSESSEE 38 VIDE PARA 4 OF THIS ORDER AND THE SAME HAS BEEN FOL LOWED IN A.Y. 2008-09 & 2009-10. FACTS BEING SIMILAR, SO FOLLOWI NG THE SAME REASONING, WE ARE NOT INCLINED TO INTERFERE WITH TH E FINDING OF CIT(A) WHO HAS RIGHTLY DELETED THE ADDITION IN QUESTION. WE UPHOLD THE SAME. 24. THE NEXT ISSUE IS WITH REGARD TO ADDITION MAD E BY ASSESSING OFFICER OF 4,79,500/- ON ACCOUNT OF RECEIPT OF REFUND OF ADVA NCE AGAINST PROPERTY. 24.1 THE MATTER WAS CARRIED BEFORE FIRST APPELLATE AUTHORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF ASSESSEE AND HAVING CALLED FOR REMAND REPORT FROM ASSESSING OFFICER AND COMMENTS FROM AUTHORIZED REPRESENTATIVE ON BEHALF O F ASSESSEE, THE CIT(A) HAS GRANTED THE RELIEF TO THE ASSESSEE. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENUE. 24.2 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATERIAL ON RECORD, WE FIND THAT THE IMPUGNED ADVANCE AS WEL L AS REFUND OF SAME WAS SHOWN IN THE BALANCE SHEET OF ASSESSEE OF RESPECTIVE YEARS. THE IMPUGNED ADDITION WAS MADE BY THE ASSES SING OFFICER WITHOUT OBSERVING THE RUDIMENTARY PRINCIPLES OF ACC OUNTING AS WELL AS TAX LAWS, BECAUSE THE SOURCE OF GIVING ADVANCE W AS NOT IN DISPUTE. THEN IN SUCH CIRCUMSTANCES, IF IMPUGNED A DVANCE WAS NOT GIVEN, THEN, THERE WOULD HAVE BEEN NO CHANCE OF CAS H POSITION OF ASSESSEE. THE ASSESSING OFFICER HAS IGNORED THE FA CT THAT THIS IS NOT A CASE WHERE ANY LOAN OR DEPOSIT OR ADVANCE IS TAKE N OR CREDITED, IN THE PRESENT CASE, THE AMOUNT ALREADY GIVEN IS CLAIM ED TO BE RECEIVED BACK BY THE ASSESSEE. THE ASSESSING OFFICER HAS NO T REBUTTED THE STAND OF ASSESSEE WITH ANY COGENT EVIDENCE OR REASO NING IN THIS REGARD. THEREFORE, CONSIDERING THE ABOVE FACTS AND ALSO CONFIRMATION OF SAID PARTY, THE ADDITION MADE BY AS SESSING OFFICER OF 4,79,500/- ON ACCOUNT OF REFUND OF ADVANCE GIVEN W AS NOT 39 JUSTIFIED AND THE SAME WAS RIGHTLY DELETED BY THE C IT(A) BY REASONING FINDING. WE UPHOLD THE SAME. 25. THE NEXT ISSUE RELATES TO THE ADDITION OF 17,66,670/- MADE ON ACCOUNT OF ADDITIONAL INCOME OFFERED IN THE STAT EMENT RECORDED U/S. 132(4) DURING THE SEARCH ACTION. THE BRIEF FA CTS OF THE ISSUE ARE THAT A STATEMENT OF MR. DINESHKUMAR LODHA WAS R ECORDED U/S. 132(4) ON 10.07.2009. IN THE SAID STATEMENT IN ANS WER TO QUESTION NO.20, AN AMOUNT OF 1.04 CRORE WAS OFFERED AS ADDITIONAL INCOME OF THREE BROTHERS AND THEIR RESPECTIVE WIVES I.E. M R. VIJAYKUMAR LODHA, MR. DINESHKUMAR LODHA, MR. DINESHKUMAR LODHA , MRS. SAROJ V. LODHA, MRS. SUJATA D. LODHA AND MRS. SUMAN A. LODHA. NO BREAKUP OF THE DISCLOSURE OR SPECIFIC REFERENCE TO ANY SEIZED MATERIAL OR INVESTMENT OR EXPENDITURE WAS MADE IN R ESPECT OF THE SAID DISCLOSURE. THE ASSESSING OFFICER MADE ADDITIO N OF 1/6 TH OF THE SAID DISCLOSURE OF 1.04 CRORE IN THE HANDS OF ASSESSEE FOR THE REASON THAT THE ASSESSEE OR THE PERSONS ON WHOSE BE HALF THE SAID DISCLOSURE WAS GIVEN, HAVE NOT DISCLOSED THE SAME I N THEIR RETURNS OF INCOME. 'Q. NO. 20 1 AM EXPLAINING YOU THE PROVISION OF SEC TION 271(L)(C) EXPLANATION 5 R.W.S. 271 AAA. WHAT YOU LI KE 1 LO SAY? ANS: YES, WE HAVE TO AVAIL THE BENEFITS OF ABOVE PR OVISIONS. WE HAVE ALREADY DISCLOSED RS. 1.47 CRORES IN THE RESID ENTIAL PREMISES OF SHRI. DINESHKUMAR B. LODHA. NOW, WE ARE HEREBY DISCLOSING THE AMOUNT OF RS. 1.04 CRORES AS ADDITIO NAL INCOME OF WE THREE BROTHERS NAMELY SHRI. VIJAYKUMAR B. LOD HA, SHRI. DINESHKUMAR B. LODHA, SHRI ANILKUMAR B. LODHA, SAU. SAROJ V. LODHA, SAU. SUJATA D. LODHA AND SAU. SUMAN A. LO DHA. THE BREAKUP OF THIS DISCLOSURE PERSON WISE AND YEAR WISE WILL BE GIVEN AFTER RECEIPT OF THE XEROX COPIES. THIS WI LL COVER EXPENDITURE, INVESTMENTS, ERRORS AND OMISSIONS' 25.1 THE ASSESSING OFFICER SOLELY RELIED ON THE A BOVE REFERRED STATEMENT FOR MAKING IMPUGNED ADDITION. THE STAND O F THE ASSESSEE HAS BEEN THAT AFTER VERIFICATION OF THE ENTIRE SEIZ ED RECORD THE ASSESSEE HAS FILED THE RETURNS OF INCOME FOR THE YE ARS INVOLVED AFTER 40 CONSIDERING THE CONTENTS OF SEIZED MATERIAL, INVEST MENTS, EXPENSES INCURRED, BANK ACCOUNT, ETC. IT WAS FURTHER ARGUED ON BEHALF OF ASSESSEE THAT NO ADDITION COULD BE MADE SOLELY ON T HE BASIS OF ADHOC DISCLOSURE MADE DURING THE COURSE OF SEARCH A CTION. THE ASSESSING OFFICER ALREADY COMPLETED THE ASSESSMENTS OF THE GROUP CASES AFTER SEPARATELY CONSIDERING THE ENTIRE SEIZE D MATERIAL, INVESTMENTS, EXPENDITURE, ETC. OF THE ASSESSEE AS W ELL AS HIS OTHER FAMILY MEMBERS. THE RELEVANT PORTION OF THE SUBMIS SION ON BEHALF OF ASSESSEE IN THIS REGARD IS AS UNDER: 'DURING THE COURSE OF RECORDING OF STATEMENT U/S. 1 32(4) ON 10/07/2009 IN REPLY TO Q. NO. 20, MR. DINESHKUMAR B . LODHA AND HIS BROTHERS, DISCLOSED ADDITIONAL INCOME OF RS . 1.04 CRORES IN ADDITION TO RS. 1.47 CRORES , WHICH WERE DISCLOSED AS ADDITIONAL INCOME SEPARATELY. THIS INCOME WAS DISCL OSED ON ADHOC BASIS WITHOUT SPECIFICALLY REFERRING TO ANY S EIZED MATERIAL OR INVESTMENT OR EXPENDITURE. THE SAID DIS CLOSURE WAS STATED TO BE GIVEN ON BEHALF OF THE APPELLANT AND H IS BROTHERS AND THEIR WIVES. HOWEVER IGNORING THE FACTS OF THE CASE AS WELL AS ACTUAL OFFERED ADDITIONAL INCOME OF AROUND RS. 1 70 L.ACS ON THE BASIS OF SEIZED MATERIAL, INVESTMENTS, EXPENDIT URE, ETC. , THE A.O. HAS MADE ADDITION OF RS. 17,66,670/-( 1/6 TH OF RS. 1.04 CRORES I.E. INCOME OFFERED DURING THE COURSE O F SEARCH ACTION) ON THE BASIS THAT THE APPELLANT HAS NOT FUR NISHED BREAK UP SUBMISSION. THE ACTUAL FACT AND SUBMISSION OF THE APPELLANT IN RESPECT OF ABOVE IS AS UNDER-THE APPELLANT GROUP HAS OFFERED F OLLOWING INCOME FOR THE YEAR UNDER REVIEW IN THE RETURN OF I NCOME FILED U/S. IMA OF THE ACT - NAME A.Y. 2008-09 A.Y. 2009-10 A.Y.2010-1 1 MR. VIJAYKUMAR LODHA RS. 40,00,000 RS. 46,00,000 -------- MR. DINESHKUMAR LODHA RS. 10,00,000 RS. 15,00,000 - ------ MR. ANILKUMAR LODHA RS. 10,00,000 RS. 15,00,000 -- ------- M/S. B. M. LODHA & SONS RS. 15,46,000 RS.2,32,0 00 SAROJ V. LODHA RS. 5,18,000 SUJATA D. LODHA RS. 5,18,000 SUMAN A. LODHA RS. 5,18,000 ---------------------------------------------- --------- TOTAL RS. 60,00,000 RS.1,07,00,000 RS.2,32,000 41 AS SEEN FROM ABOVE (HE APPELLANT GROUP HAS ALREADY DISCLOSED AROUND 170 LACS. THE IMPUGNED ADDITION IS NOT JUSTI FIED FOR THE FOLLOWING REASONS- 1. THE SAID DISCLOSURE WAS MADE ON ADHOC BASIS WITH OUT SPECIFICALLY REFERRING TO ANY SEIZED RECORD OR INVE STMENT OR EXPENDITURE, ETC. 'THEREFORE NO COGNIZANCE OF THE S AME SHOULD BE TAKEN. IT IS ALSO A MATTER OF LAD THAT IN THE GR OUP CASES THE ASSESSMENTS ARE COMPLETED AFTER CONSIDERING ENTIRE SEIZED RECORD WITH REFERENCE TO INVESTMENTS OR EXPENSES OF EACH PERSON INDEPENDENTLY AND THE BASIS OF ADHOC DISCLOS URE GIVEN DURING (LIE COURSE OF SEARCH ACTION WAS LO COVER TH INGS I.E. SEIZED MATERIAL, INVESTMENT AND EXPENDITURE. IN SUC H CIRCUMSTANCES WHEN THE ENTIRE SEIZED MATERIAL AS WE LL AS INVESTMENTS AND EXPENDITURE, ETC. ARE ALREADY CONSI DERED BY THE A.O. WHILE MAKING INDEPENDENT ASSESSMENTS OF GR OUP CASES, HE IS NOT JUSTIFIED IN MAKING AGAIN ADDITION OF THE SAME ON ADHOC BASIS. 2. THE PRESUMPTION U/S. 132(4A) IS REBUTTABLE AND T HE SAME ARE APPLICABLE TO SEARCH PROCEEDINGS AND NOT TO ASS ESSMENT PROCEEDINGS. THIS VIEW IS ENDORSED BY SUPREME COURT IN THE CASE OF P.R. METRANI VS CIT 287 ITR 209. THEREFORE IN THE PRESENT CASE THE ADDITION SOLELY ON THE BASIS OF ST ATEMENT WITHOUT BASING THE SAME TO ANY SEIZED MATERIAL OR I NVESTMENT OR EXPENDITURE OR INCOME IS NOT JUSTIFIED PARTICULA RLY WHEN ALL THE INVESTMENTS, INCOME, EXPENDITURE INCLUDING HOUS EHOLD EXPENSES TIRE ALREADY CONSIDERED IN THE RETURN OF I NCOME FILED BY THE APPELLANT AND NO ANY INCRIMINATING MATERIAL IS FOUND AS A RESULT OF SEARCH ACTION OR INVESTIGATION CARRIED ON BY THE A.O. IN SUCH CIRCUMSTANCES ADDITION SHOULD NOT HAVE BEEN MADE ONLY ON THE BASIS OF STATEMENT RECORDED U/S. 132(4) BECAUSE STATEMENT U/S. 132(4) IS TO BE RECORDED W.R.T. SEIZ ED RECORD OR MONEY OR BULLION, ETC. THE RELIANCE IS PLACED ON TH E DECISION OF ANDHRA PRADESH HIGH COURT IN THE CASE OF CIT VS SHR I RAMDAS MOTOR TRANSPORT 238 ITR 177. THE REFERENCE IS ALSO MADE TO CIRCULAR NO. F.NO. 286/2/2003- IT (INV.) DATED 10 TH MARCH, 2003 AS REFERRED BY MADRAS HIGH COURT IN THE CASE O F M. NARAYANAN & BROS, VS ACIT 60 DTR 233 THAT 'C.B.D.T. HAS GIVEN CATEGORICAL DIRECTIONS TO DEPARTMENTAL/OFFICE RS THAT UNDUE EMPHASIS SHOULD NOT BE PLACED ON THE RECORDED STATEMENTS. 25.2 CONSIDERING THE SUBMISSION ON BEHALF OF ASSES SEE, THE CIT(A) HAS DELETED THE ADDITION IN QUESTION. THE S AME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENUE, INTER ALIA STATED THAT THE CIT(A) WAS NOT JUSTIFIED IN DELETING THE ADDITION O F 17,66,670/- 42 MADE ON THE BASIS OF DECLARATION OF ADDITIONAL INCO ME U/S.132(4) OF THE ACT AND THE SAME SHOULD BE SET ASIDE AND THAT O F ASSESSING OFFICER BE RESTORED. ON THE OTHER HAND, THE LEARNE D AUTHORIZED REPRESENTATIVE SUPPORTED THE ORDER OF CIT(A). 25.3 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATERIAL ON RECORD, WE FIND IT UNDISPUTED THAT DISCLOSURE WA S MADE ON BEHALF OF THE ASSESSEE TO COVER EXPENDITURE, INVESTMENTS, ERRORS AND OMISSIONS. IT WAS FOUND THAT THE ASSESSMENTS OF ALL THE PARTIES TO THE IMPUGNED DISCLOSURE WERE COMPLETED BY THE SAME ASSESSING OFFICER AFTER CONSIDERING THE SEIZED RECORD AS WELL AS INVESTMENTS AND EXPENDITURE. THEREFORE, THE CIT(A) OBSERVED TH AT ONCE THE ASSESSING OFFICER HAS SPECIFICALLY AND INDIVIDUALLY CONSIDERED THE SEIZED RECORD, EXPENDITURE AND INVESTMENTS FOR THE PURPOSE OF ASSESSMENT AND MADE ADDITIONS ACCORDINGLY, THEN THE ASSESSING OFFICER SHOULD NOT HAVE MADE ANY ADHOC ADDITION FOR THE SAME REASON. THE EVIDENTIARY VALUE OF THE DISCLOSURE WIL L HAVE WEIGHT ONLY IF THE SAME IS MADE WITH REFERENCE TO ANY SEIZED DO CUMENT OR VALUABLE OR EXPENDITURE, ETC. THE RELEVANT PORTION OF THE PROVISIONS OF SUBSECTION (4) OF SECTION 132 IS AS UNDER: 'THE AUTHORIZED OFFICER MAY, ETC. THE RELEVANT PORT ION OF THE PROVISIONS OF SUBSECTION (4) OF SECTION 132 ARE AS UNDER: 'THE AUTHORIZED OFFICER MAY, DURING THE COURSE OF T HE SEARCH OR SEIZER, EXAMINE ON OATH ANY PERSON WHO IS FOUND TO BE IN POSSESSION OR CONTROL OF ANY BOOKS OF ACCOUNTS, DOC UMENTS, MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING AND ANY STATEMENT MADE BY SUCH PERSON DURING SUCH EXAMI NATION MAY THEREAFTER BE USED IN EVIDENCE IN ANY PROCEEDIN GS UNDER THE INDIAN INCOME-TAX ACT, 1922 (11 OF 1922), OR UN DER THIS ACT.' FROM THE ABOVE PROVISIONS OF SUBSECTION (4) OF SECT ION 132 IT IS CLEAR THAT THE STATEMENT U/S. 132(4) SHOULD BE CONFINED T O ANY BOOKS OF ACCOUNTS, DOCUMENTS, MONEY, BULLION, JEWELLERY OR O THER VALUABLE ARTICLE OR THING FOUND IN POSSESSION OF THE ASSESSE E AND THEN ONLY 43 THE SAID STATEMENT COULD BE USED AS EVIDENCE. THE C ENTRAL BOARD OF DIRECT TAXES VIDE CIRCULAR NO. F.NO. 286/2/2003 -IT (INV.) DATED 10 TH MARCH, 2003 HAS ALSO SPECIFICALLY DIRECTED THE FIEL D OFFICERS NOT TO INSIST FOR DISCLOSURE OR CONFESSIONS DURING THE COURSE OF SEARCH ACTION IF THERE IS NO CREDIBLE EVIDENCE. IN THE PRE SENT CASE, NO EVIDENCE WAS FOUND TO SUPPORT SUCH A DISCLOSURE. TH EREFORE, THE CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF 17,66,670/- MADE BY THE ASSESSING OFFICER ON THE BASIS OF A STATEMEN T AND IN ABSENCE OF ANY EVIDENCE THEREOF. THIS REASONED FINDING OF CIT(A) NEEDS NO INTERFERENCE FROM OUR SIDE. WE UPHOLD THE SAME. T HE ASSESSEE HAS ALSO FILED CROSS OBJECTION, WHICH WAS NOT PRESSED, SO THE SAME IS DISMISSED AS NOT PRESSED. 26. AS A RESULT, THIS APPEAL OF THE REVENUE AS WELL AS CORRESPONDING CROSS OBJECTION OF ASSESSEE, ARE ALSO DISMISSED. THE ITA NOS.1387, 1388 & 1959/PN/2012 FOR A.YS. 200 8-09, 2009-10 & 2010-11 PERTAIN TO SHRI ANILKUMAR BHAGCHA ND LODHA. 27. IN ITA NO.1387/PN/2012 FOR A.Y. 2008-09, THE R EVENUE HAS FILED THE APPEAL ON THE FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A), ERRED IN DELETING THE ADDI TION OF RS.22,950/- MADE BY DISALLOWANCE OF PART OF AGRICUL TURE INCOME SHOWN IN THE RETURN. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDIT ION ON ACCOUNT OF UNEXPLAINED ADVANCES AGAINST PROPERTY AM OUNTING TO RS. 2,50,000/-. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDIT ION ON ACCOUNT OF UNEXPLAINED PERSONAL EXPENSES ON THE BAS IS OF SEIZED DOCUMENTS AMOUNTING TO RS. 2,40,411/-. 4. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AN D IN LAW, THE LEARNED CIT(A), ERRED IN IGNORING THE EVID ENCE ON RECORD IN THE FORM OF INCRIMINATING MATERIALS ON TH E BASIS OF 44 WHICH THE VARIOUS ADDITIONS WERE MADE, THUS RENDERI NG THE DECISION PERVERSE AND CONTRARY TO THE EVIDENCE ON R ECORD. 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY, D ELETE AMEND ANY OF THE GROUNDS, AS PER THE CIRCUMSTANCES OF THE CASE. 6. THE APPELLANT PRAYS LEAVE TO ADDUCE SUCH FURTHER EV IDENCE TO SUBSTANTIATE ITS CASE AS THE OCCASION MAY DEMAND . 28. THE FIRST ISSUE IS WITH REGARD TO THE DISALLO WANCE OF 50% OF AGRICULTURAL INCOME OF 22,950/- MADE BY THE ASSESSING OFFICER. 28.1 THE MATTER WAS CARRIED BEFORE FIRST APPELLATE AUTHORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF ASSESSEE AND HAVING CALLED FOR REMAND REPORT FROM ASSESSING OFFICER AND COMMENTS FROM AUTHORIZED REPRESENTATIVE ON BEHALF O F ASSESSEE, THE CIT(A) HAS GRANTED THE RELIEF TO THE ASSESSEE. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENUE. ON TH E OTHER HAND, THE LEARNED AUTHORIZED REPRESENTATIVE HAS SUPPORTED THE ORDER OF CIT(A) ON THE ISSUE. 28.2 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATERIAL ON RECORD, WE FIND THAT A SIMILAR ISSUE AROSE IN TH E CASE OF SHRI VIJAYKUMAR B. LODHA IN ITA NO.1384/PN/2012 IN A.Y. 2007-08 WHEREIN WE HAVE DECIDED THE ISSUE IN FAVOUR OF ASSE SSEE VIDE PARA 4 OF THIS ORDER. FACTS BEING SIMILAR, SO FOLLOWING T HE SAME REASONING, WE ARE NOT INCLINED TO INTERFERE WITH THE FINDING O F CIT(A) WHO HAS RIGHTLY DELETED THE ADDITION OF 22,950/- ON ACCOUNT OF DISALLOWANCE OF 50% OF AGRICULTURAL INCOME. WE UPH OLD THE SAME. 29. THE NEXT ISSUE IS WITH REGARD TO ADDITION MADE BY ASSESSING OFFICER OF ADVANCES OF 2,50,000/- GIVEN TO ANILKUMAR B. LODHA (HUF) FOR THE MAIN REASONS THAT THE ASSESSEE HAS NO T FURNISHED THE DETAILS OF THE PAYMENTS MADE OR PURCHASE OF PROPERT Y, ETC. 45 29.1 THE MATTER WAS CARRIED BEFORE FIRST APPELLATE AUTHORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF ASSESSEE AND HAVING CALLED FOR REMAND REPORT FROM ASSESSING OFFICER AND COMMENTS FROM AUTHORIZED REPRESENTATIVE ON BEHALF O F ASSESSEE, THE CIT(A) HAS GRANTED THE RELIEF TO THE ASSESSEE. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENUE. 29.2 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATERIAL ON RECORD, WE FIND THAT ADVANCE GIVEN WAS DISCLOSED IN THE BALANCE SHEET OF ASSESSEE AT ASSETS SIDE AS ADVANCE GIVEN A ND AT THE SAME TIME, IT IS ALSO NOT IN DISPUTE THAT THE SAID ANILK UMAR B. LODHA (HUF) HAS ALSO SHOWN IN HIS BALANCE SHEET THE IMPUG NED TRANSACTION OF RECEIPT OF ADVANCE FROM THE ASSESSEE . THE IMPUGNED ADDITION HAS BEEN MADE BY THE ASSESSING OFFICER TOT ALLY ON SURMISES AND CONJECTURE. THE ASSESSING OFFICER HAS ALWAYS I N THE GROUP CASES, ASSUMES THAT THE ADVANCE GIVEN OR RECEIVED B ACK AND DISCLOSED IN THE BALANCE SHEET AS UNACCOUNTED OR UN EXPLAINED MONEY. THIS ASSUMPTION OF ASSESSING OFFICER WITHOU T ANY BASE OR LOGIC BECAUSE THE ADVANCE WAS DULY DISCLOSED BY THE ASSESSEE IN THE BALANCE SHEET. THEREFORE, THE SAME COULD NOT BE HE LD AS UNACCOUNTED OR UNEXPLAINED. IN SUCH A SITUATION, O NLY OPTION LEFT WITH THE ASSESSING OFFICER TO VERIFY THE SOURCE OF SUCH INVESTMENT OR ASSETS. IN THE PRESENT CASE, SOURCE THEREOF IS NOT IN DISPUTE. THEREFORE, THE ASSESSING OFFICER WAS NOT JUSTIFIED TO LOOK FOR SAME IN CAPITAL OR OTHER ACCOUNT WHILE THE IMPUGNED ADVANCE WAS DISCLOSED BY THE ASSESSEE AS RECEIVABLE IN BALANCE SHEET. IT IS ALSO NOT IN DISPUTE THAT THE ASSESSEE WAS HAVING ENOUGH SOURCES OF FUNDS TO JUSTIFY THE SAID ADVANCE AS HE HAS OFFERED AN ADDIT IONAL INCOME OF 10,08,110/- DURING THE YEAR. THEREFORE, THE ASSESS ING OFFICER WAS NOT JUSTIFIED IN MAKING THE ADDITION ON ACCOUNT OF ADVANCE GIVEN TO ANILKUMAR B. LODHA AMOUNTING TO 2,50,000/-. THE SAME WAS RIGHTLY DELETED BY THE CIT(A) BY COGENT REASONING. WE UPHOLD THE SAME. 46 30. THE NEXT ISSUE IS WITH REGARD TO ADDITION O F 2,40,411/- ON ACCOUNT OF EXPENDITURE INCURRED WITH REFERENCE TO S OME SEIZED DOCUMENTS. THE FACT OF THIS ISSUE IS THAT DURING T HE COURSE OF SEARCH ACTION A PAPER (PAGE NO. 2, ANNEXURE A/3) WA S SEIZED FROM THE RESIDENCE OF THE ASSESSEE, WHICH CONTAINS SOME NOTING IN RESPECT OF CERTAIN EXPENSES INCURRED BY THE ASSESSE E. THE ASSESSING OFFICER MADE THE ADDITION OF THE SAID EXPENSES AS N OTED ON THE SAID PAGE FOR THE REASON THAT THE ASSESSEE HAS NOT FURNI SHED THE DETAILS OF WITHDRAWALS MADE FOR INCURRING THE SAID EXPENDIT URE. 30.1 THE MATTER WAS CARRIED BEFORE FIRST APPELLATE AUTHORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF ASSESSEE AND HAVING CALLED FOR REMAND REPORT FROM ASSESSING OFFICER AND COMMENTS FROM AUTHORIZED REPRESENTATIVE ON BEHALF O F ASSESSEE, THE CIT(A) HAS GRANTED THE RELIEF TO THE ASSESSEE. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENUE INTER A LIA SUBMITTED TO SET ASIDE THE ORDER OF CIT(A) AND THAT OF ASSESSING OFFICER BE RESTORED. ON THE OTHER HAND, THE LEARNED AUTHORIZE D REPRESENTATIVE HAS SUPPORTED THE ORDER OF CIT(A) ON THE ISSUE. 30.2 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATERIAL ON RECORD, WE FIND THAT THE SAID TRANSACTION OF PUR CHASE OF GOLD ORNAMENTS WAS ACCOUNTED IN THE BALANCE SHEET OF ANI LKUMAR B. LODHA WHICH COULD BE OUT OF THE ADVANCE OF 2,50,000/- GIVEN BY THE ASSESSEE TO ANILKUMAR B. LODHAR (HUF), THE CON TENTION OF THE ASSESSING OFFICER THAT THE ASSESSEE HAS NOT FURNISH ED THE DETAILS OF WITHDRAWALS MADE FOR INCURRING THESE EXPENSES IS NO T JUSTIFIED BECAUSE THE SAID PURCHASE OF GOLD ORNAMENTS WAS SEP ARATELY SHOWN AS ASSETS IN THE BALANCE SHEET, THERE WAS NO NEED T O CHARGE THE SAME TO CAPITAL ACCOUNT. THE CONTENTION OF ASSESSE E IS THAT GOLD FOUND DURING THE COURSE OF SEARCH ACTION IS NOT EXC ESS WITH THE ASSESSEE OR HIS FAMILY, NOT REBUTTED BY THE ASSESSI NG OFFICER BY COGENT REASONING. IN VIEW OF THIS, THE ASSESSING OFFICER WAS NOT 47 JUSTIFIED TO MAKE ADDITION OF 2,40,411/- AND THE SAME WAS RIGHTLY DELETED BY THE CIT(A). THIS REASONED FINDING OF CI T(A) NEEDS NO INTERFERENCE FROM OUR SIDE. WE UPHOLD THE SAME. T HE ASSESSEE HAS ALSO FILED CROSS OBJECTION, WHICH WAS NOT PRESSED, SO THE SAME IS DISMISSED AS NOT PRESSED. 31. AS A RESULT, THIS APPEAL FILED BY REVENUE AS WE LL AS CORRESPONDING CROSS OBJECTION OF ASSESSEE, ARE DISM ISSED. 32. IN ITA NO.1388/PN/2012 FOR A.Y. 2009-10, THE RE VENUE HAS FILED THE APPEAL ON THE FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDITION O N ACCOUNT OF UNEXPLAINED ADVANCES AGAINST PROPERTY AMOUNTING TO RS. 5,50,086/-. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDITION O N ACCOUNT OF UNEXPLAINED PERSONAL EXPENSES ON THE BASIS OF SEIZE D DOCUMENTS AMOUNTING TO RS. 4,89,077/-. 3. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AN D IN LAW, THE LEARNED CIT(A), ERRED IN IGNORING THE EVIDENCE ON RECORD IN THE FORM OF INCRIMINATING MATERIALS ON THE BASIS OF WHICH THE VARIOUS ADDITIONS WERE MADE, THUS RENDERING THE DEC ISION PERVERSE AND CONTRARY TO THE EVIDENCE ON RECORD. 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY, D ELETE AMEND ANY OF THE GROUNDS, AS PER THE CIRCUMSTANCES OF THE CASE. 5. THE APPELLANT PRAYS LEAVE TO ADDUCE SUCH FURTHER EV IDENCE TO SUBSTANTIATE ITS CASE AS THE OCCASION MAY DEMAND. 33. THE FIRST ISSUE IS WITH REGARD TO ADDITION O F ADVANCE GIVEN OF 1,50,086/- TO ANILKUMAR B. LODHA (HUF) AND OTHER PA RTIES OF 4,00,000/-. THE FACT OF THIS ISSUE IS THAT THE ASS ESSEE GAVE ADVANCES TO THE PARTIES, WHICH WERE DISCLOSED IN TH E FINANCIAL STATEMENTS OF THE ASSESSEE. THE ASSESSING OFFICER H AS ADDED THE IMPUGNED ADVANCES FOR THE MAIN REASON THAT THE ASSE SSEE HAS NOT FURNISHED THE DETAILS OF THE PAYMENTS MADE FOR PURC HASE OF THE 48 PROPERTY AND MODES OF SUCH PAYMENTS TRANSACTED EITH ER THROUGH THE CAPITAL ACCOUNT OF THE ASSESSEE OR OTHERWISE. 33.1 THE MATTER WAS CARRIED BEFORE FIRST APPELLATE AUTHORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF ASSESSEE AND HAVING CALLED FOR REMAND REPORT FROM ASSESSING OFFICER AND COMMENTS FROM AUTHORIZED REPRESENTATIVE ON BEHALF O F ASSESSEE, THE CIT(A) HAS GRANTED THE RELIEF TO THE ASSESSEE. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENUE. ON TH E OTHER HAND, THE LEARNED AUTHORIZED REPRESENTATIVE HAS SUPPORTED THE ORDER OF CIT(A) ON THE ISSUE. 33.2 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATERIAL ON RECORD, WE FIND THAT ADVANCE GIVEN WAS DISCLOSED IN THE BALANCE SHEET OF ASSESSEE AT ASSETS SIDE AS ADVANCE AS GIVE N AND AT THE SAME TIME, IT IS ALSO NOT IN DISPUTE THAT THE SAID MR. ANILKUMAR B. LODHA (HUF) HAS SHOWN THE SAME IN HIS BALANCE SHEET AS TRANSACTION OF RECEIPT OF ADVANCE FROM THE ASSESSEE . MR. ANILKUMAR B. LODHA (HUF) CANNOT BE FICTITIOUS ONE ONCE HE HAS REGULARLY ASSESSED TO INCOME TAX AND HAVING VALID PAN. THE I MPUGNED ADDITION IS TOTALLY MADE BY THE ASSESSING OFFICER O N SURMISES AND COMPLETELY ON THE BASIS OF WRONG FINDING. IN THE P RESENT CASE, THE SOURCE OF ADVANCE IS NOT IN DISPUTE. THE LOAN WAS SEPARATELY SHOWN AS AT ASSETS SIDE TO BALANCE SHEET AND THE SAME WOU LD NOT APPEAR AS WITHDRAWAL FROM CAPITAL. THEREFORE, THE ASSESSI NG OFFICER WAS NOT JUSTIFIED TO LOOK FOR SAME IN CAPITAL OR OTHER ACCOUNTS WHEN THE IMPUGNED ADVANCE WAS DISCLOSED BY ASSESSEE AS RECEI VABLE IN HIS BALANCE SHEET. THE ASSESSING OFFICER WAS NOT JUSTI FIED IN DOUBTING THE ADVANCE IN QUESTION. ON PERUSAL OF DETAILS, IT IS OBSERVED THAT THE SAID ADVANCE IS RECEIVED FROM SHRI BHAGCHANDJI LODHA 1,00,000/-, SMT. SUJATA LODHA 1,30,000/- AND SMT. SUMAN LODHA 3,36,000/-. ALL THESE PARTIES ARE ASSESSED WITH T HE ASSESSING OFFICER HIMSELF AND THEY HAVE SHOWN IMPUG NED 49 TRANSACTIONS IN THEIR BALANCE SHEETS. IN SUCH A SI TUATION, WHEN SOURCE OF ADVANCE IS NOT IN DISPUTE, THEN, ADVANCE GIVEN WAS OUT OF SAME OR PERSON TO WHOM THE ADVANCE SHOULD NOT BE DO UBTED. FURTHER, IT IS NOT IN DISPUTE THAT THE ASSESSEE HAD ENOUGH SOURCES OF FUNDS TO JUSTIFY THE SAID ADVANCE AS HE HAS OFFE RED AN ADDITIONAL INCOME OF 15,00,000/- DURING THE YEAR. IN VIEW OF ABOVE, TH E ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING THE A DDITION ON ACCOUNT OF ADVANCE GIVEN OF 5,50,086/- AND THE SAME WAS RIGHTLY DELETED BY THE CIT(A). WE UPHOLD THE SAME. 34. THE NEXT ISSUE IS WITH REGARD TO ADDITION MAD E BY THE ASSESSING OFFICER OF 4,89,077/- ON ACCOUNT OF EXPENDITURE INCURRED WITH REFERENCE TO SOME SEIZED DOCUMENTS. 34.1 THE MATTER WAS CARRIED BEFORE FIRST APPELLATE AUTHORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF ASSESSEE AND HAVING CALLED FOR REMAND REPORT FROM ASSESSING OFFICER AND COMMENTS FROM AUTHORIZED REPRESENTATIVE ON BEHALF O F ASSESSEE, THE CIT(A) HAS GRANTED THE RELIEF TO THE ASSESSEE. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENUE. ON TH E OTHER HAND, THE LEARNED AUTHORIZED REPRESENTATIVE HAS SUPPORTED THE ORDER OF CIT(A) ON THE ISSUE. 34.2 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATERIAL ON RECORD, WE FIND THAT EXPENSES AS PER THE SAID NO TING OF THE SEIZED MATERIAL ARE ALREADY CHARGED BY THE ASSESSEE TO ITS CAPITAL ACCOUNT. FURTHER, THE CONTENTION OF ASSESSEE THAT NOTING EXP ENSES ON PAGE NO.6 TO 25 OF BUNDLE NO.A-2 ARE OF 47,774/- AND NOT OF 93,374/- AS CONSIDERED BY THE ASSESSING OFFICER WAS NOT REBU TTED BY HIM. THE ASSESSEE WAS HAVING ENOUGH SOURCES OF FUNDS DUR ING THE YEAR AS HE HAS OFFERED AN ADDITIONAL INCOME OF 15,00,000/- IN THE RETURN OF INCOME. THEREFORE, ON THE BASIS OF ABOVE , THE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING ADDITION OF 4,89,077/-. THE SAME WAS RIGHTLY DELETED BY THE CIT(A). WE UPHOLD THE SAME. THE 50 ASSESSEE HAS ALSO FILED CROSS OBJECTION, WHICH WAS NOT PRESSED, SO THE SAME IS DISMISSED AS NOT PRESSED. 35. AS A RESULT, THIS APPEAL OF REVENUE AS WELL AS CORRESPONDING CROSS OBJECTION OF ASSESSEE, ARE DISMISSED. 36. IN ITA NO.1959/PN/2012 FOR A.Y. 2010-11, THE RE VENUE HAS FILED THE APPEAL ON THE FOLLOWING GROUNDS. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE DISALLOWAN CE OF PART OF AGRICULTURAL INCOME AT RS.68,062/-EVEN THOUGH THE A SSESSEE HAS NOT PRODUCED ANY COGENT EVIDENCE IN RESPECT OF HIS CLAIM OF THE AGRICULTURAL INCOME. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDITION O N ACCOUNT OF PAYMENT OF ADVANCE FOR PROPERTY AT RS. 2,26, 399/- 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDITION O N ACCOUNT OF UNEXPLAINED EXPENDITURE ON THE BASIS OF SEIZED DOCU MENTS AMOUNTING TO RS.61,068/-. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE DE CLARATION OF ADDITIONAL INCOME OF RS. 17,66,670/- WAS MADE UNDER SECTION 132(4) ON THE ACT AND WAS BASED ON INCRIMINATING EV IDENCE FOUND DURING THE COURSE OF SEARCH AND SEIZURE OPERA TION. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) HAS ERRED IN IGNORING THE EVIDEN CE ON RECORD IN THE FORM OF INCRIMINATING MATERIALS ON THE BASIS OF WHICH THE VARIOUS ADDITIONS WERE MADE, THUS RENDERING THE DECISION PERVERSE AND CONTRARY TO THE EVIDENCE ON RECORDS. 6. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY, D ELETE AMEND ANY OF THE GROUNDS, AS PER CIRCUMSTANCES OF THE CAS E. 7. THE APPELLANT PRAYS LEAVE TO ADDUCE SUCH FURTHER EV IDENCE TO SUBSTANTIATE ITS CASE AS OCCASION MAY DEMAND. 37. THE FIRST ISSUE IS WITH REGARD TO DISALLOWANCE OF PART OF AGRICULTURAL INCOME OF 68,062/- BY THE ASSESSING OFFICER. 51 37.1 THE MATTER WAS CARRIED BEFORE FIRST APPELLATE AUTHORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF ASSESSEE AND HAVING CALLED FOR REMAND REPORT FROM ASSESSING OFFICER AND COMMENTS FROM AUTHORIZED REPRESENTATIVE ON BEHALF O F ASSESSEE, THE CIT(A) HAS GRANTED THE RELIEF TO THE ASSESSEE. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENUE. ON TH E OTHER HAND, THE LEARNED AUTHORIZED REPRESENTATIVE HAS SUPPORTED THE ORDER OF CIT(A) ON THE ISSUE. 37.2 IN THIS REGARD, WE FIND THAT A SIMILAR ISSUE AROSE IN ITA NO.1384/PN/2012, WHEREIN WE HAVE DECIDED THE ISSUE IN FAVOUR OF ASSESSEE VIDE PARA 4 OF THIS ORDER AND FOLLOWED IN OTHER CASES ALSO. FACTS BEING SIMILAR, SO FOLLOWING THE SAME REASONIN G, WE ARE NOT INCLINED TO INTERFERE WITH THE FINDING OF CIT(A). WE UPHOLD THE SAME. 38. THE NEXT ISSUE IS WITH REGARD TO ADDITION OF 2,26,399/- ON ACCOUNT OF PAYMENT FOR FICTITIOUS PROPERTY TRANSACT ION. 38.1 THE MATTER WAS CARRIED BEFORE FIRST APPELLATE AUTHORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF ASSESSEE AND HAVING CALLED FOR REMAND REPORT FROM ASSESSING OFFICER AND COMMENTS FROM AUTHORIZED REPRESENTATIVE ON BEHALF O F ASSESSEE, THE CIT(A) HAS GRANTED THE RELIEF TO THE ASSESSEE. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENUE. ON TH E OTHER HAND, THE LEARNED AUTHORIZED REPRESENTATIVE HAS SUPPORTED THE ORDER OF CIT(A) ON THE ISSUE. 38.2 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATERIAL ON RECORD, WE FIND THAT ADVANCE IN QUESTION GIVEN I S DISCLOSED IN THE BALANCE SHEET OF ASSESSEE AT ASSETS SIDE AS ADVANCE WAS GIVEN AND AT THE SAME TIME, IT IS ALSO NOT IN DISPUTE THAT TH E PARTIES TO WHOM THE ADVANCE IS SHOWN TO BE GIVEN HAVE ALSO SHOWN TH E SAME IN THEIR BALANCE SHEETS. IN THIS BACKGROUND, THE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING THE ADDITION OF THE SAME. THE SOURCE IS NOT IN 52 DISPUTE AS THE ASSESSEE WAS HAVING ENOUGH SOURCES O F FUNDS TO JUSTIFY THE SAID ADVANCE AS HE HAS OFFERED AN ADDIT IONAL INCOME OF 25,00,000/- IN THE EARLIER YEARS. THEREFORE, ON TH E BASIS OF ABOVE FACTUAL AND LEGAL POSITION, THE ADDITION OF 2,26,399/- BY THE ASSESSING OFFICER ON ACCOUNT OF ADVANCE GIVEN TO AN ILKUMAR B. LODHA (HUF), THOMAS COOK CO. LTD. AND M/S. M.K. ASS OCIATES NETTING OUT WITH ADDITION OF 9,11,186/- ON SIMILAR GROUND MADE IN ASSESSMENT OF EARLIER YEAR, WAS NOT JUSTIFIED. THE ASSESSING OFFICER HAS ALSO MADE CALCULATION ERROR IN THIS REGARD AS D ISCUSSED BY CIT(A) IN PARA 7.3 OF ITS ORDER. THEREFORE, TAKING ALL FACTS AND CIRCUMSTANCES, THE CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF 2,26,586/- MADE BY ASSESSING OFFICER ON ACCOUNT OF ADVANCE IN QUESTION. WE UPHOLD THE SAME. 39. THE NEXT ISSUE IS WITH REGARD TO ADDITION MA DE BY THE ASSESSING OFFICER OF 61,068/- ON ACCOUNT OF EXPENDITURE INCURRED WITH REFERENCE TO SOME SEIZED DOCUMENTS. 39.1 THE MATTER WAS CARRIED BEFORE FIRST APPELLATE AUTHORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF ASSESSEE AND HAVING CALLED FOR REMAND REPORT FROM ASSESSING OFFICER AND COMMENTS FROM AUTHORIZED REPRESENTATIVE ON BEHALF O F ASSESSEE, THE CIT(A) HAS GRANTED THE RELIEF TO THE ASSESSEE. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENUE. ON TH E OTHER HAND, THE LEARNED AUTHORIZED REPRESENTATIVE HAS SUPPORTED THE ORDER OF CIT(A) ON THE ISSUE. 39.2 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATER IAL ON RECORD, WE FIND THAT TOUR EXPENSES OF 63,773/- OF KASHMIR TOUR WAS DULY DISCLOSED BY THE ASSESSEE TO CAPITAL ACCOU NT AS HIS PERSONAL DRAWING. THE ASSESSING OFFICER HAS MADE T HE ADDITION OF 61,068/- ON THE BASIS OF NOTING ON SEIZED PAPER NO. 34 TO 72 OF ANNEXURE A-2 FOR THE REASON THAT THE ASSESSEE HAS N OT FURNISHED THE SUPPORTING DOCUMENTS PERTAINING TO THE SAID TOU R EXPENSES OF 53 61,068/- AS CLAIMED BY THE ASSESSEE AND DEBITED TO THE CAPITAL ACCOUNT OF THE ASSESSEE. THE STAND OF THE ASSESSEE HAS BEEN THAT THE ASSESSEE AND HIS WIFE WENT FOR KASHMIR TOUR DUR ING THE YEAR UNDER APPEAL AND EXPENSES ON THE SAID TRAVEL OF 63,773/- WHICH WERE INCLUSIVE OF IMPUGNED AMOUNT OF 61,068/- WERE MADE OUT OF WITHDRAWAL FROM FIRM, IN WHICH, THE ASSESSEE IS A P ARTNER AND OTHER INCOME, ETC. THE ASSESSING OFFICER HAS NOT BROUGHT ON RECORD ANY EVIDENCE OF ANY AMOUNT HAVING PAID BY THE ASSESSEE OVER AND ABOVE 63,773/- OR HE HAS CARRIED OUT ANY ENQUIRY IN THIS RESPECT. THEREFORE, THE CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF 61,068/- MADE BY THE ASSESSING OFFICER. WE UPHOLD THE SAME. 40. THE NEXT ISSUE IS WITH REGARD TO ADDITION OF 17,66,670/- MADE ON ACCOUNT OF ADDITIONAL INCOME OFFERED IN THE STATEMENT RECORDED U/S.132(4) DURING THE SEARCH ACTION. 40.1 THE MATTER WAS CARRIED BEFORE FIRST APPELLATE AUTHORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF ASSESSEE AND HAVING CALLED FOR REMAND REPORT FROM ASSESSING OFFICER AND COMMENTS FROM AUTHORIZED REPRESENTATIVE ON BEHALF O F ASSESSEE, THE CIT(A) HAS GRANTED THE RELIEF TO THE ASSESSEE. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENUE. ON TH E OTHER HAND, THE LEARNED AUTHORIZED REPRESENTATIVE HAS SUPPORTED THE ORDER OF CIT(A) ON THE ISSUE. 40.2 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATER IAL ON RECORD, WE FIND THAT A SIMILAR ISSUE AROSE IN IT A NO.1820/PN/2012, WHEREIN WE HAVE DECIDED THE SIMILA R ISSUE IN FAVOUR OF ASSESSEE VIDE PARA 25 OF THIS ORDER. FAC TS BEING SIMILAR, SO FOLLOWING THE SAME REASONING, WE ARE NOT INCLINE D TO INTERFERE WITH THE FINDING OF CIT(A) WHO HAS DELETED THE ADDI TION OF 17,66,670/- MADE ON ACCOUNT OF ADDITIONAL INCOME OF FERED IN THE STATEMENT RECORDED U/S.132(4) DURING THE SEARCH ACT ION. WE 54 UPHOLD THE SAME. THE ASSESSEE HAS ALSO FILED CROSS OBJECTION, WHICH WAS NOT PRESSED, SO THE SAME IS DISMISSED AS NOT PR ESSED. 41. AS A RESULT, THIS APPEAL OF REVENUE AS WELL AS CORRESPONDING CROSS OBJECTION OF ASSESSEE, ARE DISMISSED. THE ITA NOS.1542, 1960 & 2245/PN/2012 FOR A.YS. 200 8-09, 2009-10 & 2010-11 PERTAIN TO SHRI DINESHKUMAR BHAGC HAND LODHA. 42. IN ITA NO.1542/PN/2012 FOR A.Y. 2008-09, THE RE VENUE HAS FILED THE APPEAL ON THE FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDIT ION ON ACCOUNT OF RECEIPT OF REFUND OF ADVANCE OF RS.2,21, 250/-, WITHOUT APPRECIATING THAT THE ASSESSEE HAS NOT PROD UCED ANY SATISFACTORY EVIDENCE THAT THIS AMOUNT IMFACT-B EEN RECEIPT OF REFUND OF ADVANCE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE DISAL LOWANCE OF PART OF AGRICULTURE INCOME AT RS.65,752/- WITHOUT APPRECIATING THAT THE ASSESSEE HAS NOT PRODUCED ANY SATISFACTORY EVIDENCE IN SUPPORT OF AGRICULTURAL IN COME. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDIT ION ON ACCOUNT OF PAYMENT OF ADVANCE AGAINST PROPERTY AT RS.2,80,000/- WITHOUT APPRECIATING THAT THE ASSESSE E HAS NOT EXPLAINED THE SOURCE OF SUCH ADVANCES WITH THE REGULAR BOOKS OF ACCOUNTS. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED C1T(A) ERRED IN DELETING THE ADDIT ION OF RS. 31,00,000/-, ON ACCOUNT OF ADMITTED DECLARATION U/S . 132(4) AT RS.41,00,000/- WITHOUT APPRECIATING THAT THE SAI D DECLARATION WAS MADE ON THE BASIS OF INCRIMINATING SEIZED MATERIAL AND SUCH DOCUMENTS HAS EVIDENTIARY VALUE. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN IGNORING THE EVIDE NCE ON RECORD IN THE FORM OF INCRIMINATING MATERIALS ON TH E BASIS OF 55 WHICH THE VARIOUS ADDITIONS WERE MADE, THUS, RENDER ING THE DECISION PERVERSE AND CONTRARY TO THE EVIDENCE ON R ECORD. 6. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY, D ELETE AMEND ANY OF THE GROUNDS, AS PER THE CIRCUMSTANCES OF THE CASE. 7. THE APPELLANT PRAYS LEAVE TO ADDUCE SUCH FURTHER EV IDENCE TO SUBSTANTIATE ITS CASE AS THE OCCASION MAY DEMAND . 43. THE BRIEFLY THE FACTS OF THE CASE ARE THAT T HE ASSESSEE IS AN INDIVIDUAL HAVING INCOME FROM SALARY, CAPITAL GAIN, INTEREST INCOME FROM FIRMS IN WHICH THE ASSESSEE IS A PARTNER, ETC. THE ASSESSEE IS REGULARLY ASSESSED TO INCOME TAX. THE FIRST ISSUE IS WITH REGARD TO ADDITION OF 2,21,250/- ON ACCOUNT OF RECEIPT OF REFUND OF ADVA NCE IN CASH FROM MR. SATISH D. AHIRE, WHICH WAS DELETED BY THE CIT(A). THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF RE VENUE. ON THE OTHER HAND, THE LEARNED AUTHORIZED REPRESENTATIVE H AS SUPPORTED THE ORDER OF CIT(A) ON THE ISSUE. 43.1 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATERIAL ON RECORD, WE FIND THAT THE IMPUGNED ADVANCE AS WEL L AS REFUND OF THE SAME WAS SHOWN IN THE BALANCE SHEET OF ASSESSEE OF RESPECTIVE YEARS. THE ASSESSING OFFICER HAS IGNORED THE BASIC PRINCIPLE OF ACCOUNTING AS WELL AS TAX BECAUSE THE SOURCE OF GIV ING OF ADVANCE IS NOT IN DISPUTE, THEN, IN SUCH CIRCUMSTANCES, SUCH A DVANCE WAS NOT GIVEN, THEN, THERE WOULD HAVE BEEN NO CHANGE OF CAS H POSITION OF THE ASSESSEE. THE ALLEGATION OF ASSESSING OFFICER THAT ACCOUNTS OF ASSESSEE WERE FINALIZED ONLY AFTER SEARCH IS NOT CO RRECT BECAUSE THE ASSESSEE HAS ALWAYS SUBMITTED ABRIDGED CASH POSITIO N AS WELL AS EXTRACT OF ACCOUNTS OF RELEVANT PARTIES, ETC. WITH ORIGINAL RETURN OF INCOME, UNTIL NEW SCHEME OF E-FILING WAS INTRODUCED . THE STAND OF THE ASSESSING OFFICER TO DISPLEASE THE TRANSACTION WITH MR. AHIRE THAT THE SAME IS NOT APPEARING IN CAPITAL ACCOUNT I S NOT JUSTIFIED BECAUSE WHEN THE AMOUNT IS GIVEN SHOWN AS RESPECTIV ELY IN THE BALANCE SHEET, THEN, SAME WOULD NEVER APPEAR IN THE CAPITAL 56 ACCOUNT. THE ASSESSING OFFICER HAS IGNORED THE FAC T THAT THIS IS NOT A CASE WHERE ANY LOAN OF DEPOSIT OR ADVANCE IS TAKE N OR CREDITED. IN THE PRESENT CASE, THE AMOUNT ALREADY GIVEN IS CLAIM ED TO BE RECEIVED BACK BY THE ASSESSEE. THE ASSESSING OFFICER HAS NO T DISPUTED OF THIS CONTENTION OF ASSESSEE WITH ANY COGENT EVIDENC E OR REASONING. IN VIEW OF ABOVE, THE ASSESSING OFFICER WAS NOT JUS TIFIED IN MAKING THE ADDITION OF 2,21,250/- ON ACCOUNT OF REFUND OF ADVANCE GIVEN AND THE SAME WAS RIGHTLY DELETED BY CIT(A). WE UPH OLD THE SAME. 44. THE NEXT ISSUE IS WITH REGARD TO DISALLOWANCE OF 50% OF AGRICULTURAL INCOME OF 65,752/-. IN APPEAL, THE LEARNED AUTHORIZED REPRESENTATIVE ON BEHALF OF ASSESSEE SUB MITTED THAT THE ASSESSEE HAS OWN 19.42 ACRES OF IRRIGATED LAND AND ALSO THE AGRICULTURAL INCOME THEREON. IN APPEAL, THE CIT(A) HAVING CALLED FOR REMAND REPORT FROM THE ASSESSING OFFICER AND COMMEN TS FROM THE ASSESSEE, GRANTED THE RELIEF TO THE ASSESSEE. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENUE. ON THE OTH ER HAND, THE LEARNED AUTHORIZED REPRESENTATIVE HAS SUPPORTED THE ORDER OF CIT(A) ON THE ISSUE. 44.1 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATERIAL ON RECORD, WE FIND THAT A SIMILAR ISSUE ORIGINALLY AROSE IN ITA NO.1384/PN/2012, WHEREIN WE HAVE DECIDED THE ISSUE IN FAVOUR OF ASSESSEE VIDE PARA 4 OF THIS ORDER. FACTS BEING SI MILAR, SO FOLLOWING THE SAME REASONING, WE ARE NOT INCLINED TO INTERFER E WITH THE FINDING OF CIT(A) WHO HAS RIGHTLY DELETED THE ADDITION IN Q UESTION. WE UPHOLD THE SAME. 45. THE NEXT ISSUE IS WITH REGARD TO DISALLOWANCE OF ADVANCES GIVEN OF 2,50,000/- TO MR. VIJAYKUMAR B. LODHA & 30,000/- TO MR. SAURABH D. LODHA, WHICH WAS REFLECTED IN THE BA LANCE SHEETS OF THE ASSESSEE AS WELL AS VIJAYKUMAR B. LODHA AND SOU RABH D. LODHA. 57 45.1 THE MATTER WAS CARRIED BEFORE FIRST APPELLATE AUTHORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF ASSESSEE AND HAVING CALLED FOR REMAND REPORT FROM ASSESSING OFFICER AND COMMENTS FROM AUTHORIZED REPRESENTATIVE ON BEHALF O F ASSESSEE, THE CIT(A) HAS GRANTED THE RELIEF TO THE ASSESSEE. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENUE. ON TH E OTHER HAND, THE LEARNED AUTHORIZED REPRESENTATIVE HAS SUPPORTED THE ORDER OF CIT(A) ON THE ISSUE. 45.2 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATERIAL ON RECORD, WE FIND THAT ADVANCE GIVEN WAS DISCLOSED IN THE BALANCE SHEET OF THE ASSESSEE AT ASSETS SIDE AS ADVANCE WAS GIVEN AND AT THE SAME TIME, IT IS NOT IN DISPUTE THAT THE PARTIES TO WHOM THE ADVANCE IS SHOWN TO BE GIVEN HAVE ALSO SHOWN IMPUGNED TRANS ACTIONS IN THEIR BALANCE SHEETS AS ADVANCE FROM THE ASSESSEE. BOTH THESE PERSONS ARE ASSESSED TO INCOME TAX AND HAVING PAN. THE SOURCE OF ADVANCE IS NOT IN DISPUTE IN THE CASE BEFORE US. T HE ASSESSEE WAS HAVING ENOUGH SOURCES OF FUNDS TO JUSTIFY THE SAID ADVANCE AS HE HAS OFFERED AN ADDITIONAL INCOME OF 10,00,000/- DURING THE YEAR. IN VIEW OF ABOVE, THE ASSESSING OFFICER WAS NOT JUS TIFIED IN MAKING THE IMPUGNED ADDITION ON ACCOUNT OF ADVANCE WAS GIV EN TO VIJAYKUMAR LODHA AND SAURABH LODHA TOTALING TO 2,80,000/-, WHICH WAS RIGHTLY DELETED BY CIT(A). WE UPHOLD THE SAME. 46. THE NEXT ISSUE IS WITH REGARD TO ADDITION OF 31,00,000/- ON THE BASIS OF DIFFERENCE IN THE DISCLOSURE MADE U/S. 132(4) AND THE ADDITIONAL INCOME OFFERED IN THE RETURN OF INCOME F ILED U/S.153A. THE ASSESSEE HAS DISCLOSED THE ADDITIONAL INCOME OF 41 LACS FOR THE YEAR UNDER APPEAL IN THE STATEMENT RECORDED U/S .132(4) OF ACT. THE ASSESSEE HAS OFFERED 10 LACS AS AN ADDITIONAL INCOME IN THE RETURN OF INCOME. THE ASSESSING OFFICER HAS MADE T HE IMPUGNED ADDITION BEING THE DIFFERENCE IN THE AMOUNT DISCLOS ED U/S.132(4) 58 AND THE AMOUNT OFFERED AS AN ADDITIONAL INCOME IN T HE RETURN OF INCOME FOR THE YEAR UNDER APPEAL. 46.1 THE MATTER WAS CARRIED BEFORE FIRST APPELLATE AUTHORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF ASSESSEE, WHEREIN THE CIT(A) HAVING CALLED FOR THE REMAND REP ORT FROM THE ASSESSING OFFICER AND COMMENTS THEREOF FROM THE ASS ESSEE, GRANTED THE RELIEF TO THE ASSESSEE. THE SAME HAS BEEN OPPO SED BEFORE US ON BEHALF OF REVENUE AND SUBMITTED THAT THE CIT(A) ERR ED IN DELETING THE ADDITION OF 31 LACS ON ACCOUNT OF ADMITTED DECLARATION U/S.132(4) AT 41 LACS WITHOUT APPRECIATING THAT THE SAID DECLARATION WAS MADE ON THE BASIS OF INCRIMINATING SEIZED MATERIAL AND SUCH DOCUMENTS HAS EVIDENTIARY VALUE. ACCORDIN GLY, THE ORDER OF CIT(A) BE SET ASIDE AND THAT OF ASSESSING OFFICE R BE RESTORED. ON THE OTHER HAND, THE LEARNED AUTHORIZED REPRESENTATI VE SUPPORTED THE ORDER OF CIT(A). 46.2 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATERIAL ON RECORD, WE FIND THAT IT IS APPARENT THAT THE ASS ESSEE AND HIS TWO BROTHERS SHRI VIJAY KUMAR LODHA AND SHRI ANIL KUMAR LODHA HAVE DISCLOSED THE ADDITIONAL INCOME OF 60 LACS IN THE RETURN OF INCOME FOR THE YEAR UNDER APPEAL AS AGAINST DISCLOSURE U/S . 132(4) AT 41 LACS. ALL THESE THREE PERSONS ARE ASSESSED TO TAX B Y THE SAME ASSESSING OFFICER. THE IMPUGNED ADDITION IS MADE BY THE ASSESSING OFFICER FOR THE MAIN REASON AS MENTIONED BY HIM IN THE REPORT THAT THE DETAILS OF ADDITIONAL INCOME WERE NOT PROVIDED TO HIM BY THE ASSESSEE GROUP. AS THE ADDITIONAL INCOME OFFERED IN THE RETURN OF INCOME IS MORE THAN THE INCOME DISCLOSED U/S.132(4) OF 41 LACS, ANY FURTHER ADDITION OF 31 LACS WAS NOT JUSTIFIED AND THE SAME HAS RIGHTLY BEEN DELETED BY THE CIT(A). THIS REASONED FINDING OF CIT(A) NEEDS NO INTERFERENCE FROM OUR SIDE. WE UPHOLD THE SAME. THE ASSESSEE HAS ALSO FILED CROSS OBJECTION, WHICH WAS NOT PRESSED, SO THE SAME IS DISMISSED AS NOT PRESSED. 59 47. AS A RESULT, THIS APPEAL OF REVENUE AS WELL AS CORRESPONDING CROSS OBJECTION OF ASSESSEE, ARE DISMISSED. 48. IN ITA NO.2245/PN/2012 FOR A.Y. 2009-10, THE RE VENUE HAS FILED THE APPEAL ON THE FOLLOWING GROUNDS. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDIT ION OF 12,00,000/-, BEING UNEXPLAINED ADVANCES FOR PROPERT Y GIVEN TO SHRI DEEPAK BAKRE WITHOUT APPRECIATING THAT THE ASSESSEE HAS NOT EXPLAINED TO THE SATISFACTION OF T HE ASSESSING OFFICER THE SOURCE OF SUCH ADVANCES WITH DOCUMENTARY EVIDENCE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN ADMITTING EVIDENCE IN VIOLATION OF RULE 46A OF THE INCOME TAX RULE, WHICH WAS NOT PRESENTED BEFORE THE ASSESSING OFFICER IN RESPECT O F THE IDENTITY OF SHRI DEEPAK BAKRE. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE DISAL LOWANCE OF PART OF AGRICULTURE INCOME OF RS.44825/- WITHOUT APPRECIATING THAT THE ASSESSEE HAS NOT PRODUCED ANY COGENT EVIDENCE IN SUPPORT OF AGRICULTURAL INCOME. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDIT ION OF RS. 3,50,000/- BEING UNACCOUNTED AND UNEXPLAINED ADVANC ES FORWARDED /RECEIVED BACK WITHIN THE FAMILY MEMBERS WITHOUT APPRECIATING THAT THE ASSESSEE HAS NOT EXPL AINED TO THE SATISFACTION OF THE ASSESSING OFFICER THE SOURC E OF SUCH ADVANCES WITH DOCUMENTARY EVIDENCE. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDIT ION OF RS. 91,00,000/- ON ACCOUNT OF ADMITTED DECLARATION UNDE R SECTION 132(4) OF THE ACT AT RS.1,06,00,000/- WITHO UT APPRECIATING THAT THE SAID DECLARATION WAS MADE ON THE BASIS OF INCRIMINATING SEIZED MATERIAL AND SUCH DOC UMENTS AS WELL AS THE STATEMENT UNDER SECTION 132(4) OF TH E ACT HAVE EVIDENTIARY VALUE. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN RESTRICTING THE AD DITION ON ACCOUNT OF UNEXPLAINED MARRIAGE EXPENSES OF ASSESSE E'S DAUGHTER TO RS.5,20,578/- AS AGAINST ADDITION MADE OF RS. 60 1,18,69,341/- WHICH WAS BASED ON INCRIMINATING SEIZ ED DOCUMENTS. 7. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDIT ION OF RS. 1,22,201/-, MADE ON THE BASIS OF SEIZED DOCUMENTS B EING IN THE NATURE OF UNACCOUNTED EXPENDITURE ON THE MARRIA GE EXPENSES OF ASSESSEE'S DAUGHTER. 8. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) HAS ERRED IN IGNORING THE E VIDENCE ON RECORD IN THE FORM OF INCRIMINATING MATERIALS ON THE BASIS OF WHICH THE VARIOUS ADDITIONS WERE MADE, THU S RENDERING THE DECISION PERVERSE AND CONTRARY TO THE EVIDENCE ON RECORD. 9. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY, D ELETE AMEND ANY OF THE GROUNDS, AS PER THE CIRCUMSTANCES OF THE CASE. 10. THE APPELLANT PRAYS LEAVE TO ADDUCE SUCH FURTHER EVIDENCE TO SUBSTANTIATE ITS CASE AS THE OCCASION MAY DEMAND. 49. THE FIRST ISSUE IS WITH REGARD TO ADDITION OF 12 LACS MADE ON ACCOUNT OF ADVANCES GIVEN TO MR. DEEPAK R BAKRE IN CASH. 49.1 THE MATTER WAS CARRIED BEFORE FIRST APPELLATE AUTHORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF ASSESSEE AND HAVING CALLED FOR REMAND REPORT FROM ASSESSING OFFICER AND COMMENTS FROM AUTHORIZED REPRESENTATIVE ON BEHALF O F ASSESSEE, THE CIT(A) HAS GRANTED THE RELIEF TO THE ASSESSEE B Y OBSERVING AS UNDER 6.4 I HAVE CAREFULLY CONSIDERED THE FACTS OF THE C ASE, THE ASSESSMENT ORDER, THE REPORT OF THE A.O. AND THE RI VAL SUBMISSIONS. IT IS A MATTER OF FACT THAT THE ADVANC ES GIVEN ARE DISCLOSED IN THE BALANCE SHEET OF THE APPELLANT AT ASSET SIDE AS ADVANCE GIVEN AND AT THE SAME TIME IT IS ALSO NOT D ISPUTED FACT THAT MR. DEEPAK BAKRE HAS ALSO SHOWN IN HIS BALANCE SHEET THE IMPUGNED TRANSACTION OF RECEIPT OF ADVANCE FROM THE APPELLANT. THE CONTENTION OF THE A.O. THAT MR. DEEP AK BAKRE IS FICTITIOUS PERSON IS NOT CORRECT WHEN HE IS REGULAR LY ASSESSED TO INCOME TAX HAVING VALID PAN. THE CONTENTION OF THE A.O. THAT THE IMPUGNED ADVANCE IS RECEIVED BACK IS ALSO NOT C ORRECT AS 61 NO REFUND OF THE SAME IS RECEIVED BY THE APPELLANT EITHER DURING THE YEAR OR SUBSEQUENTLY. 'THE IMPUGNED ADDI TION IS MADE BY THE A.O. TOTALLY ON SURMISES AND COMPLETELY ON THE BASIS OF WRONG FINDINGS AS MENTIONED ABOVE. THE REF ERENCE GIVEN BY THE A.O. IN THE ASSESSMENT ORDER TO PARA N O. 3 & 4 AS CONFINING PARAS IN THE ASSESSMENT ORDER IS ALSO MIS PLACED. THE CONTENTION OF THE APPELLANT THAT WHEN THE SAID ADVA NCE IS SEPARATELY SHOWN AT THE ASSET SIDE OF THE BALANCE S HEET, THEN THE SAME WOULD NOT APPEAR AS WITHDRAWAL FROM THE CA PITAL IS ALSO CORRECT AND, THEREFORE, THE A.O. IS NOT JUSTIF IED TO LOOK FOR THE SAME IN THE CAPITAL OR OTHER ACCOUNT WHEN THE I MPUGNED ADVANCE IS DISCLOSED BY THE APPELLANT AS RECEIVABLE IN HIS BALANCE SHEET. THE MOOT POINT HERE IS THAT THE IMPU GNED ADVANCES, WHETHER FICTITIOUS OR OTHERWISE, ARE DISC LOSED BY THE APPELLANT IN HIS FINANCIAL STATEMENT AT ASSET SIDE AND WHEN THE SOURCES THEREOF ARE EXPLAINED, THERE IS NO PROVISION UNDER THE LAW TO TAX SUCH TRANSACTIONS. IT IS ALSO A MATTER OF FACT THAT THE APPELLANT IS HAVING ENOUGH SOURCES OF FUND TO JUSTIFY THE SAID ADVANCE AS HE HAS OFFERED ADDITION AL INCOME OF RS. 15,00,000/- DURING THE YEAR. THEREFORE, THE A.O . IS NOT JUSTIFIED TO ASK FOR THE AGREEMENT, ETC PARTICULARL Y WHEN THERE IS NO DISPUTE AS REGARDS TO THE SOURCE OF INVESTMEN T, BECAUSE THE ADVANCE RECEIVED FROM SAYLI LODHA IS ALSO DISCL OSED BY HER IN HER BALANCE SHEET AND WHOSE ASSESSMENT IS ALSO C OMPLETED BY THE SAME A.O. AT THE SAME TIME. THE ACTUAL NATUR E OF TRANSACTION MAY BE DIFFERENT OR THE SAME MAY BE TEM PORARY LOANS, ETC. BUT THAT WOULD NOT MAKE THE SAID TRANSA CTION AS TAXABLE IN THE HANDS OF THE APPELLANT MAINLY BECAUS E THE SOURCE THEREOF IS EXPLAINED. THEREFORE, ON THE BASI S OF ABOVE FACTUAL AS WELL AS LEGAL POSITION THE ADDITION MADE BY THE A.O. AMOUNTING TO RS.12,00,000/- ON ACCOUNT OF ADVANCES GIVEN TO MR. DEEPAK BAKRE IS PURELY MADE ON THE BASIS OF SUR MISES AND HENCE THE SAME IS HEREBY DELETED. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF RE VENUE. ON THE OTHER HAND, THE LEARNED AUTHORIZED REPRESENT ATIVE HAS SUPPORTED THE ORDER OF CIT(A) ON THE ISSUE 49.2 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATERIAL ON RECORD, WE FIND THAT THE ADVANCE GIVEN WAS DISCL OSED IN THE BALANCE SHEET OF ASSESSEE AT ASSETS SIDE AS ADVANCE WAS GIVEN AND AT THE SAME TIME, IT IS NOT IN DISPUTE THAT THE SAI D MR. DEEPAK BAKRE HAS SHOWN THE SAME IN HIS BALANCE SHEET. THE SAID DEEPAK BAKRE HAS VALID PAN AND ASSESSED TO THE INCOME TAX. MOREOVER, THE 62 ASSESSEE WAS HAVING ENOUGH SOURCES OF FUNDS TO JUST IFY THE SAID ADVANCE AS HE HAS OFFERED AN ADDITIONAL INCOME OF 15,00,000/- DURING THE YEAR UNDER CONSIDERATION. IN VIEW OF AB OVE, THE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING THE A DDITION OF 12,00,000/- ON ACCOUNT OF ADVANCE GIVEN TO DEEPAK B AKRE. THE SAME WAS RIGHTLY DELETED BY THE CIT(A). WE UPHOLD THE SAME. 50. THE NEXT ISSUE IS WITH REGARD TO THE DISAL LOWANCE OF 50% OF AGRICULTURAL INCOME OF 44,825/- FOR THE MAIN REASON THAT THE ASSESSEE HAS NOT FURNISHED THE SUPPORTING EVIDENCES LIKE SALE PATTIS, MARKET CERTIFICATES, BILLS FOR FERTILIZERS, ETC. TO SUBSTANTIATE THE CORRECTNESS OF THE AGRICULTURAL INCOME. 50.1 WE FIND THAT A SIMILAR ISSUE AROSE IN THE ASS ESSEES OWN CASE IN A.Y. 2008-09, IN WHICH WE HAVE DECIDED THE ISSUE IN FAVOUR OF ASSESSEE VIDE PARA 43 OF THIS ORDER. FACTS BEIN G SIMILAR, SO FOLLOWING THE SAME REASONING, WE ARE NOT INCLINED T O INTERFERE WITH THE FINDING OF CIT(A), WHO HAS DELETED THE ADDITION MADE AS PART DISALLOWANCE AGRICULTURAL INCOME OF 44,825/-. WE U PHOLD THE SAME. 51. THE NEXT ISSUE IS WITH REGARD TO THE DISALL OWANCE OF ADVANCES GIVEN OF 3,50,000/- TO DINESHKUMAR B. LODHA (HUF). 51.1 THE MATTER WAS CARRIED BEFORE FIRST APPELLATE AUTHORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF ASSESSEE AND HAVING CALLED FOR REMAND REPORT FROM ASSESSING OFFICER AND COMMENTS FROM AUTHORIZED REPRESENTATIVE ON BEHALF O F ASSESSEE, THE CIT(A) HAS GRANTED THE RELIEF TO THE ASSESSEE B Y OBSERVING AS UNDER: 8.4 I HAVE CAREFULLY CONSIDERED THE FACTS OF THE C ASE, THE ASSESSMENT ORDER, THE REPORT OF THE A.O. AND THE RI VAL SUBMISSIONS. IT IS MATTER OF FACT THAT THE ADVANCES GIVEN ARE DISCLOSED IN THE BALANCE SHEET OF THE APPELLANT AT ASSET SIDE AS ADVANCE GIVEN AND AT THE SAME TIME IT IS ALSO NOT D ISPUTED FACT THAT DINESHKUMAR B LODHA (HUF) HAS ALSO SHOWN IN HI S 63 BALANCE SHEET THE IMPUGNED TRANSACTION OF RECEIPT O F ADVANCE FROM THE APPELLANT. THE CONTENTION OF THE A.O. THAT THE APPELLANT HAS INTRODUCED HIS UNACCOUNTED AND UNEXPL AINED CASH FOR IMPUGNED ADVANCE IS NOT CORRECT BECAUSE TH E SAID TRANSACTION IS DISCLOSED BY THE APPELLANT IN HIS BA LANCE SHEET. THE A.O. HAS ASSUMED THAT ADVANCES GIVEN OR RECEIVE D BACK AND DISCLOSED IN THE BALANCE SHEET AS UNACCOUNTED O R UNEXPLAINED MONEY. THIS ASSUMPTION OF THE A.O. IS W ITHOUT BASE AND ILLOGICAL BECAUSE THE SAID ADVANCES ARE DU LY DISCLOSED BY THE APPELLANT IN THE BALANCE SHEETS, T HEREFORE, THE SAME CANNOT BE UNACCOUNTED OR UNEXPLAINED. IN S UCH A SITUATION, ONLY OPTION LEFT WITH THE A.O. IS TO VER IFY THE SOURCES OF THE SAID INVESTMENTS OR ASSETS. IN THE PRESENT C ASE, THE SOURCES THEREOF ARE NOT IN DISPUTE. THE CONTENTION OF THE APPELLANT, THAT WHEN THE SAID ADVANCE IS SEPARATELY SHOWN AT THE ASSET SIDE OF THE BALANCE SHEET, THEN THE SAME WOULD NOT APPEAR AS WITHDRAWAL FROM THE CAPITAL IS ALSO CORRE CT AND, THEREFORE, THE A.O. IS NOT JUSTIFIED TO LOOK FOR TH E SAME IN THE CAPITAL OR OTHER ACCOUNT WHEN THE IMPUGNED ADVANCE IS DISCLOSED BY THE APPELLANT AS RECEIVABLE IN HIS BAL ANCE SHEET. THE MOOT POINT HERE IS THAT THE IMPUGNED ADVANCES, WHETHER FICTITIOUS OR OTHERWISE, ARE DISCLOSED BY THE APPEL LANT IN HIS FINANCIAL STATEMENT AT ASSET SIDE AND WHEN THE SOUR CES THEREOF ARE EXPLAINED, THERE IS NO PROVISION UNDER THE LAW TO TAX SUCH TRANSACTIONS. IT IS ALSO A MATTER OF FACT THAT THE APPELLANT IS HAVING ENOUGH SOURCES OF FUND TO JUSTIFY THE SAID A DVANCE AND HAS OFFERED ADDITIONAL INCOME IN THE RETURN OF INCO ME DURING THE YEAR OF RS. 15,00,000/-, THEREFORE, THE A.O. IS NOT JUSTIFIED TO ASK FOR THE AGREEMENT, ETC PARTICULARLY WHEN THE RE IS NO DISPUTE AS REGARDS THE SOURCE OF INVESTMENT. THE VI EWS OF THE AO THAT THE APPELLANT IS IN PRACTICE OF DEBITING OR CREDITING BY WAY OF ADVANCES, IS BASED ON SURMISES AND WITHOUT UNDERSTANDING OF THE ACCOUNTING PRINCIPLES. THE ACT UAL NATURE OF TRANSACTION MAY BE DIFFERENT OR THE SAME MAY BE TEMPORARY LOANS, ETC. BUT THAT WOULD NOT MAKE THE SAID TRANSA CTION AS TAXABLE IN THE HANDS OF THE APPELLANT MAINLY BECAUS E THE SOURCE THEREOF IS EXPLAINED. THEREFORE, ON THE BASI S OF ABOVE FACTUAL AS WELL AS LEGAL POSITION, THE IMPUGNED ADD ITION OF RS.3,50,000/- MADE BY THE A.O. ON ACCOUNT OF ADVANC ES GIVEN TO DINESHKUMAR B LODHA (HUF) IS BASELESS AND HENCE THE SAME IS DELETED. THIS GROUND OF APPEAL IS ALLOWED. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF RE VENUE. ON THE OTHER HAND, THE LEARNED AUTHORIZED REPRESENT ATIVE HAS SUPPORTED THE ORDER OF CIT(A) ON THE ISSUE. 64 51.2 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATERIAL ON RECORD, WE FIND THAT THE ADVANCE IN QUESTION HAS BEEN DISCLOSED BY ASSESSEE IN THE BALANCE SHEET AT ASSETS SIDE AS ADVANCE GIVEN AND AT THE SAME TIME, IT IS NOT IN DISPUTE THAT THE SAID DINESHKUMAR B. LODHA (HUF) HAS ALSO SHOWN THE SAME IN HIS BALANCE SHEET. THE STAND OF THE ASSESSEE HAS BEEN THAT WHEN THE SAID ADVANCE WAS SEPARATELY SHOWN AT ASSETS SIDE OF BALANCE SHEET, THEN, SAME WOULD NOT APPEAR AS WITHDRAWAL FROM CAPI TAL. MOREOVER, THE ASSESSEE WAS HAVING ENOUGH SOURCES OF FUNDS TO JUSTIFY THE SAID ADVANCE AS HE HAS OFFERED AN ADDITIONAL INCOME OF 15,00,000/- IN THE YEAR UNDER CONSIDERATION AS MENTIONED ABOVE. I N VIEW OF THE ABOVE, THE ASSESSING OFFICER WAS NOT JUSTIFIED IN M AKING THE ADDITION OF 3,50,000/- ON ACCOUNT OF ADVANCE GIVEN TO DINESHKUMAR B. LODHA (HUF). THE SAME WAS RIGHTLY D ELETED BY CIT(A). WE UPHOLD THE SAME. 52. THE NEXT ISSUE IS WITH REGARD TO ADDITION O F 91 LACS ON THE BASIS OF DIFFERENCE IN THE DISCLOSURE MADE U/S.132( 4) AND THE ADDITIONAL INCOME OFFERED IN THE RETURN OF INCOME F ILED U/S.153A. 52.1 IN APPEAL, THE CIT(A) GRANTED THE RELIEF TO T HE ASSESSEE BY OBSERVING AS UNDER: 9.4 I HAVE CAREFULLY CONSIDERED THE FACTS OF THE C ASE, THE ASSESSMENT ORDER, THE REPORT OF THE A.O. AND THE RI VAL SUBMISSIONS. IT IS A VERIFIED FACT THAT THE APPELLA NT AND FAMILY MEMBERS HAVE DISCLOSED THE ADDITIONAL INCOME OF RS. 169.32 LACS IN THEIR RETURN OF INCOME FOR THE YEAR A.Y. 20 08-09 AND A.Y. 2009-10 AS AGAINST DISCLOSURE U/S. 132(4) AT R S. 147 LACS AND ALL ARE ASSESSED TO TAX WITH THE SAME AO. THE I MPUGNED ADDITION IS MADE BY THE A.O. FOR THE MAIN REASON AS MENTIONED BY HIM IN REPORT THAT THE DETAILS OF ADDITIONAL INC OME OFFERED WERE NOT PROVIDED TO HIM BY THE APPELLANT GROUP. FR OM THE DETAILS FILED BY THE APPELLANT IT IS SEEN THAT THE APPELLANT FAMILY HAS ALREADY OFFERED MORE INCOME THAN THE AMO UNT DISCLOSED U/S. 132(4) OF THE ACT DURING THE YEAR UN DER APPEAL AS WELL AS DURING THE IMMEDIATELY PRECEDING YEAR. F URTHER, FROM THE SAID PIECE OF PAPER, IT IS NOT DISCERNIBLE THE EXACT NATURE OF INCOME OR INVESTMENT AND ADMITTEDLY THE A .O. HAS 65 NOT CARRIED OUT ANY INQUIRIES REGARDING THE NATURE OF DISCLOSURE OF THE IMPUGNED AMOUNT OF RS. 147 LACS O BTAINED DURING THE COURSE OF SEARCH ACTION, HENCE, THOUGH T HE AMOUNT DISCLOSED U/S. 132(4) FOR THE YEAR UNDER APPEAL WAS RS. 106 LACS, THE ADDITIONAL AMOUNT OFFERED FOR TAXATION IN THE RETURN OF INCOME OF THE PRECEDING YEAR, SHALL BE AVAILABLE AS SOURCE FOR THE PAYMENT SHOWN TO BE MADE DURING THE YEAR UNDER APPEAL ON THE SAID PAGE SEIZED DURING THE SEARCH ACTION, O N THE BASIS OF WHICH THE DISCLOSURE WAS OBTAINED BY THE DEPT. T HEREFORE AS THE ADDITIONAL INCOME OFFERED IN THE RETURN OF INCO ME IS MORE THAN THE INCOME DISCLOSED U/S. 132(4) OF RS. 147 LA CS, FURTHER ADDITION OF RS. 91,00,000/- IS NOT JUSTIFIED AND TH E SAME IS HEREBY DELETED. THIS GROUND OF APPEAL IS ALLOWED. THE SAME HAS BEEN OPPOSED BEFORE US ON THE BEHALF O F REVENUE. ON THE OTHER HAND, THE LEARNED AUTHORIZED REPRESENTATIVE SUPPORTED THE ORDER OF CIT(A). ON THE OTHER HAND, THE LEARNED AUTHORIZED REPRESENTATIVE HAS SUPPORTED THE ORDER O F CIT(A) ON THE ISSUE. 52.2 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATERIAL ON RECORD, WE FIND THAT THE ASSESSEE AND HIS FAMILY MEMBERS HAVE DISCLOSED THE ADDITIONAL INCOME OF 169.32 LACS IN THEIR RETURN OF INCOME FOR A.Y. 2008-09 AND 2009-10 AS AGAINST THE DISCLOSURE U/S. 132(4) AT 147 LACS AND ALL ASSESSED TO THE TAX WITH THE SAME ASSESSING OFFICER. THE IMPUGNED ADDITION IS MADE B Y THE ASSESSING OFFICER FOR THE MAIN REASON AS MENTIONED BY HIM IN THE REPORT THAT THE DETAILS OF ADDITIONAL INCOME OFFERED WERE NOT P ROVIDED TO HIM BY THE ASSESSEE GROUP. FROM THE DETAILS FILED BY ASSE SSEE, IT IS CLEAR THAT THE ASSESSEE FAMILY HAS ALREADY OFFERED MORE I NCOME THAN THE AMOUNT DISCLOSED U/S.132(4) OF ACT DURING THE YEAR UNDER APPEAL AS WELL AS DURING IMMEDIATELY PRECEDING YEAR. FURTHER , FROM THE SAID PIECE OF PAPER, IT IS NOT DISCERNIBLE THE EXACT NAT URE OF INCOME OR INVESTMENT AND ADMITTEDLY THE ASSESSING OFFICER HAS NOT CARRIED OUT ANY INQUIRIES REGARDING THE NATURE OF DISCLOSURE OF IMPUGNED AMOUNT OF 147 LACS OBTAINED DURING THE COURSE OF SEARCH ACTI ON. THOUGH THE AMOUNT DISCLOSED U/S.132(4) FOR THE YEAR UNDER APPEAL WAS 106 LACS, THE ADDITIONAL INCOME HAS OFFERED FOR TA XATION IN THE 66 RETURN OF INCOME OF PRECEDING YEAR SHOULD BE AVAILA BLE AS SOURCE FOR PAYMENT SHOWN TO BE MADE DURING THE YEAR UNDER APPE AL ON SAID PAGE SEIZED DURING THE SEARCH ACTION ON THE BASIS O F WHICH, THE DISCLOSURE WAS OBTAINED BY THE DEPARTMENT. THEREFO RE, AS ADDITIONAL INCOME OFFERED IN THE RETURN OF INCOME I S MORE THAN INCOME DISCLOSED U/S.132(4) OF 147 LACS, FURTHER ADDITION OF 91 LACS WAS NOT JUSTIFIED, RIGHTLY OBSERVED BY CIT(A) AND THE SAME WAS RIGHTLY DELETED BY HIM. THIS REASONED FINDING OF C IT(A) NEEDS NO INTERFERENCE FROM OUR SIDE. WE UPHOLD THE SAME. 53. THE NEXT ISSUE IS WITH REGARD TO ADDITION O F 1,18,69,341/- ON ACCOUNT OF EXPENDITURE INCURRED ON MARRIAGE OF D AUGHTER OF THE ASSESSEE I.E. MISS SAYALI. MISS SAYALI'S MARRIAGE TOOK PLACE ON 21.12.2008 AT IGATPURI, WHEREAS THE MARRIAGE OF THE ASSESSEES NIECE (DAUGHTER OF THE BROTHER SHRI VIJAYKUMAR B. L ODHA) MISS SHESHADRI TOOK PLACE ON 05.03.2003 AT MALEGAON. DUR ING THE COURSE OF SEARCH, CERTAIN DOCUMENTS FOUND FROM THE RESIDENTIAL PREMISES OF THE ASSESSEE AS WELL AS HIS BROTHER MR. VIJAYKUMAR B LODHA. THE DETAILS OF SUCH DOCUMENTS FOUND DURING T HE COURSE OF SEARCH ACTION AND CONSIDERED BY THE ASSESSING OFFIC ER BY WAY OF IMPUGNED ADDITION ARE AS UNDER: S. NO. ANNEXURE NO. PAGE NO. AMOUNT 1 A - 3/20 (PARTY NO. K - L) 4 TO 15 1.22.201/ - 2 A - L (PARTY NO. K - 2) 7 TO 10 30,76,006/ - 3 A - L (PARTY NO. K - 2) 57 24,10,556/ - 4 A - L (PARTY NO. K - 2) 58 24,50,000/ - 5 A - 3 (PARTY NO. K - 2) 2 32,90,000/ - 6 A - 3 (PARTY NO. K - 2) 4 2,60,000/ - 7 A - 3 (PARTY NO. K - 2) 5&6 2,49,490/ - 7 A - 2 (PARTY NO. K - 2) 4 1 - 1.088/ - TOTAL (RS.) 1,18,69,341/ - 53.1 THE STAND OF THE ASSESSEE HAS BEEN THAT ALL T HE NOTINGS IN ABOVE REFERRED PAGES ARE NOT EXPENSES AND THE ASSES SING OFFICER HAS ERRED IN MAKING THE IMPUGNED ADDITION BECAUSE SOME OF THE NOTING 67 OUT OF THE ABOVE REFERRED PAGES ARE NOT RELATED TO THE MARRIAGE OF SAYALI AND NOT INCURRED DURING THE YEAR UNDER APPEA L. IT WAS, FURTHER, SUBMITTED ON BEHALF OF ASSESSEE THAT THE E XPENSES ACTUALLY INCURRED ARE ALREADY DISCLOSED IN THE FINANCIAL STA TEMENTS OF THE FAMILY MEMBERS AND SOME OF THE PAGES CONTAINS NOTIN G OF ROUGH ESTIMATE AND NOT ACTUAL EXPENSES AS APPEARED FROM T HE FACE OF IT, BUT THE ASSESSING OFFICER MADE ADDITION. 53.2 THE MATTER WAS CARRIED BEFORE FIRST APPELLATE AUTHORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF ASSESSEE, ON WHICH THE CIT(A) HAVING CALLED THE REMAND REPORT AND COMMENTS FROM THE ASSESSEE THEREON, HAS GRANTED RELIEF TO TH E ASSESSEE BY OBSERVING AS UNDER: 10.4 I HAVE CAREFULLY CONSIDERED THE FACTS OF T HE CASE, THE ASSESSMENT ORDER, THE REPORT OF THE A.O. AND T HE RIVAL SUBMISSIONS. I HAVE ALSO EXAMINED THE RELEVANT SEIZ ED DOCUMENTS. THE OBSERVATION OF THE ID. A.O. THAT THE APPELLANT HAS DEBITED THE IMPUGNED EXPENDITURE TO THE CAPITAL ACCOUNTS OF THE FAMILY MEMBERS AS PER CONVENIENCE AND WITHOU T SUBSTANTIATING THE COUNT WITH ANY DOCUMENTARY EVIDE NCE IS WITHOUT ANY BASE AND PURELY HYPOTHETICAL, BECAUSE W HEN THE SOURCE IS NOT IN DISPUTE, THE AO IS NOT EMPOWERED T O STEP INTO SHOES OF THE TAXPAYER AND DECIDE THE APPLICATION, T HEREOF, BECAUSE THE AMOUNT CREDITED \TO THE CAPITAL ACCOUNT OR OTHERWISE IS NOT IN DISPUTE. THE FACT IS ALSO NOT I N DISPUTE THAT THE APPELLANT FAMILY IS HAVING ALL MAIN BUSINESSES I.E. SOURCE OF INCOME, IN JOINT CAPACITY I.E. FIRM OR COMPANY. THEREFORE, CONTRIBUTION OF MARRIAGE EXPENSES BY DIFFERENT FAMI LY MEMBERS IS NOT UNCOMMON IN SUCH CASES. THE AO HAS SIMPLY DISBELIEVED THE PLAUSIBLE CONTENTION OF THE APPELLA NT ON THE SURMISES AND WITHOUT ANY BASE. HIS ANOTHER CONTENTI ON THAT THE APPELLANT HAS AVOIDED FURNISHING THE REQUISITE DETAILS SO AS NOT TO ENABLE THE AO TO CROSS EXAMINE THE FACT WITH THE CONCERNED PERSONS, IS ALSO NOT CORRECT BECAUSE ALL THE FINANCIAL STATEMENTS OF ALL THE FAMILY MEMBERS CONTAINING THE REQUISITE DETAILS OF THE IMPUGNED EXPENDITURE WERE WELL WITH THE AO AS HE HIMSELF HAS PASSED THE ASSESSMENT ORDERS IN ALL THE CASES. FURTHER, THE AO HIMSELF HAS GRANTED REDUCTION OF CE RTAIN AMOUNT FROM THE INITIAL PROPOSED ADDITION OF RS. 1, 46,44,533/- ON THIS ISSUE, ON THE BASIS OF EXPLANATION OF THE I D AR OF THE APPELLANT GIVEN IN WRITING VIDE SUBMISSION DATED 01 /11/2011. ON PERUSAL OF THE SAID SUBMISSION, IT IS TRANSPIRED THAT THE 68 APPELLANT HAS GIVEN COMPLETE SUBMISSION IN RESPECT OF ALL THE SEIZED DOCUMENTS AS REFERRED BY THE A.O. IN THE ASS ESSMENT ORDER. THEREFORE, THE CONTENTION OF THE AO THAT THE APPELLANT HAS AVOIDED FOR GIVING THE SUBMISSION ON THE IMPUGN ED ISSUE IS ABSOLUTELY FALSE AND MISLEADING. THE ITEM-WISE D ISCUSSION IN RESPECT OF THE IMPUGNED ADDITION OF RS. 1,18,69,341 /- IS AS UNDER-ADDITION OF RS. 1,22,201/- ANNEXURE A-3/20 PA GE NO. 4 TO 15 THE SAID PAGES ARE IN RESPECT OF PERSONAL EXPENDITU RE RELATED TO THE BROTHER OF THE APPELLANT MR. VIJAYKUMAR LODH A AND VIJAYKUMAR LODHA HUF, WHICH IS DISCLOSED BY THEM IN THEIR FINANCIAL STATEMENTS. IN SUPPORT OF THE SAME THE AP PELLANT HAS FILED THE CAPITAL ACCOUNT AS WELL AS ACCOUNT EXTRAC T OF GOLD OF THE SAID PARTIES AS APPEARING IN THEIR FINANCIAL ST ATEMENTS. THE PERSONAL EXPENDITURE AMOUNTING TO RS. 1,31,828/-INC URRED BY MR. VIJAYKUMAR B LODHA AND HIS FAMILY ARE ACCOUNTED AS DRAWINGS IN THE CAPITAL ACCOUNT OF MR. VIJAYKUMAR B LODHA AND RS.96,490/- IS RELATED TO INVESTMENT MADE IN GO LD PERTAINING TO VIJAYKUMAR B LODHA HUF ACCOUNTED IN T HE STATEMENT OF AFFAIRS OF VIJAYKUMAR B LODHA HUF. THE SAID EXPENDITURE/INVESTMENT IS WELL ACCOUNTED IN THE BAL ANCE SHEET OF MR. VIJAYKUMAR B LODHA AND HIS HUF AND THE SAID BUNDLE ALSO FOUND FROM THE RESIDENTIAL PREMISES OF MR. VIJ AYKUMAR B LODHA AND ALSO ADMITTED AS BELONGING TO HIM. THE NO TING OF THE IMPUGNED ADDITION ARE OUT OF THE AID AMOUNT ALR EADY DISCLOSED IN THE RESPECTIVE FINANCIAL STATEMENTS OF MR. VIJAYKUMAR B LODHA AND HIS HUF THE SAID FINANCIAL STATEMENTS HAVE NOT BEEN REJECTED OR REBUTTED BY TH E A.O. EITHER IN THE ASSESSMENT ORDER OR IN THE REPORT. TH EREFORE CONSIDERING THE ABOVE FACTUAL ASPECT THE ADDITION O UT OF THE NOTING ON PAGE NOS. 4 TO 15 OF ANNEXURE A-3 AMOUNTI NG TO RS. 1,22,201/- IS HEREBY DELETED. ADDITION OF RS. 30,76,006/-, ANNEXURE A-1. PAGE NO. 7 TO 10 THESE PAGES CONTAINS NOTING OF PURCHASE OF JEWELRY AMOUNTING TO RS. 30,76,006/-. OUT OF THE SAME RS. 20,00,000/- ARE DEBITED TO CAPITAL ACCOUNT OF MR. VIJAYKUMAR LODHA FOR THE YEAR UNDER REVIEW AND RS. 7,05,269/- ARE DEBITED TO CAPITAL ACCOUNT OF DINESHKUMAR LODHA HUF FOR THE YEAR UNDER REVIEW. THE BALANCE RS. 3,70,73 7/- ARE CLAIMED TO BE ADJUSTED AGAINST GOLD EXCHANGE OF BHAGCHANDJI LODHA IND & HU F. THE SAID EXPENSES ARE DULY DISCLOSED IN THE FINANCIAL S TATEMENTS OF MR. VIJAYKUMAR LODHA, DINESHKUMAR LODHA HUF. THE SA ID FINANCIAL STATEMENTS HAVE NOT BEEN REJECTED OR REBU TTED BY THE A.O. EITHER IN THE ASSESSMENT ORDER OR IN THE REPOR T. FURTHER, IT IS ALSO A MATTER OF FACT THAT THE TOTAL GOLD ORNAME NTS AFTER 69 BELONG TO SHRI BHAGCHAND LODHA IND & HUF AS FOUND D URING THE SEARCH ACTION IS NOT EXCEEDING THE SAME AS PER FINANCIAL STATEMENTS, EVEN AFTER CONSIDERING THE ABOVE REFERR ED GOLD GIVEN FOR EXCHANGE. THEREFORE CONSIDERING THE ABOVE FACTUAL ASPECT THE ADDITION OUT OF THE NOTING ON PAGE NOS. 7 TO 10 OF ANNEXURE A-L AMOUNTING TO RS. 30,76,006/- IS NOT JU STIFIED AND HENCE THE SAME IS HEREBY DELETED. ADDITIONS OF : RS. 24,10,5567-, ANNEXURE A-L. PAGE NO. 57 AND ADDITIONS OF : RS. 24,50,000/-. ANNEXURE A-L. PAGE NO. 58. THE PAGE NOS.57 AND 58 OF ANNEXURE A-L WHICH ARE SI MILAR AND CONTAINS THE ROUGH ESTIMATES. THE CLOSE VERIFICATIO N OF THE SAME, REVEALS THAT THE SAID PAGES ARE RELATED TO TH E MARRIAGE OF SHAISHVEE I.E. DAUGHTER OF SHRI VIJAYKUMAR LODHA AN D THE SAME ARE NEITHER RELATED TO THE MARRIAGE OF DAUGHTE R OF THE APPELLANT NOR THE SAME ARE RELATED TO THE YEAR UNDE R REVIEW. THIS FACT CAN BE WELL PROVED ON THE FACE OF THE SAI D DOCUMENTS BECAUSE SOME OF THE AMOUNTS I.E. RS.17,035/- AND RS.1,50,000/- AS NOTED ON SAID PAGE ARE LINKED TO P AGE NO. 64 OF SAME SEIZED ANNEXURE, WHICH THE AO HIMSELF ACCEP TED THAT THE SAID PAGE WAS RELATED TO MARRIAGE OF SHAISHVEE I.E. DAUGHTER OF MR. VIJAYKUMAR B LODHA, WHICH HELD IN T HE MONTH OF MARCH ,2003. FURTHER THIS CONTENTION OF THE APPE LLANT IS ALSO NOT REBUTTED BY THE A.O. BY BRINGING ON RECORD ANYTHING TO THE CONTRARY. THEREFORE CONSIDERING THESE FACTS IT IS HELD THAT THE SAID PAGES CONTAINS MAINLY ESTIMATES IN RE SPECT OF THE MARRIAGE OF SHAISHVEE I.E. DAUGHTER OF MR. VIJAYKUM AR B. LODHA, HELD IN THE MONTH OF MARCH, 2003, HENCE THE IMPUGNED ADDITIONS OUT OF THE NOTINGS ON PAGE NOS. 57 AND 58 OF ANNEXURE A-L AMOUNTING TO RS. 24,10,556/- AND RS.24,50,000/- RESPECTIVELY ARE HEREBY DELETED. AS REGARDS PAGE NO.58, WHICH IS SIMILAR TO THE PAGE NO.57 OF ANNEXURE A-L AS EXPLAINED ABOVE ADDITION OF RS. 32, 90,0007-, ANNEXURE A-3, PAGE NO. 2. THE SAID PAGE CONTAINS ROUGH ESTIMATES OF MARRIAGE EXPENSES. HOWEVER, THE ACTUAL EXPENSES INCURRED HAVE BEEN SHO WN BY THE APPELLANT AND HIS FAMILY MEMBERS IN THEIR FINAN CIAL STATEMENTS. THIS CONTENTION OF THE APPELLANT IS NEI THER REBUTTED BY THE AO WITH ANY CORROBORATIVE EVIDENCE NOR FOUND FALSE BY THE AO. NO EVIDENCE IS FOUND DURING THE SE ARCH ACTION OR BROUGHT ON RECORD BY THE A.O. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, TO PROVE THAT THE IMPUGNED EXPENSES ARE ACTUALLY INCURRED BY THE APPELLANT AND NOT DISC LOSED BY THE APPELLANT. THEREFORE, THE IMPUGNED ADDITION OF RS.3 2,90,000/- MADE OUT OF PAGE NO.2 OF ANNEXURE A-3, IS HEREBY DE LETED. 70 IN VIEW OF THE ABOVE, THE ADDITION OF 1,18,69,341/- WAS REDUCED TO 5,20,578/- [ 1,18,69,341/- - ( 2,60,000/- + 2,49,490/- + 11,088/-)] AND THE ASSESSEE GOT RELIEF OF 1,13,48,763/- ( 1,18,89,341/- - 5,20,518/-). IT IS PERTINENT HERE TO MENTIONED THAT THIS GROUND HAS RAISED IN THE CON TENTION THAT THE ASSESSING OFFICER HAS MADE ANOTHER ADDITION OF 1,22,201/- WHICH HAS ALREADY BEEN CONSIDERED BY THE ASSESSING OFFICE R IN THE AMOUNT OF 1,18,69,341/-. IT WAS BROUGHT TO THE NOTICE OF CI T(A) THAT THE ADDITION OF 1,12,201/- WAS A DOUBLE ADDITION. THIS CONTENTION W AS FOUND CORRECT BY CIT(A) BECAUSE AN IDENTICAL ADDITI ON OF 1,12,201/- WAS INCLUDED IN 1,18,69,341/- WHICH WAS RIGHTLY DELETED BY HIM IN THE BEGINNING OF PARA 10.4 ABOVE. SO, ANOTHER ADDITION WAS NOT JUSTIFIED AND THE SAME WAS DELETED BY CIT(A). THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENU E. ON THE OTHER HAND, THE LEARNED AUTHORIZED REPRESENTATIVE S UPPORTED THE ORDER OF CIT(A) ON THE ISSUE. 53.3 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATERIAL ON RECORD, WE FIND THAT THE STAND OF THE ASSESSING OFFICER IN THIS REGARD HAS BEEN THAT THE ASSESSEE HAS DEBITED THE I MPUGNED EXPENDITURE TO THE CAPITAL ACCOUNTS OF THE FAMILY M EMBERS AS PER CONVENIENCE AND WITHOUT SUBSTANTIATING THE COUNT WI TH ANY DOCUMENTARY EVIDENCE. THE ASSESSING OFFICER WAS NO T JUSTIFIED IN OBSERVING SO BECAUSE WHEN THE SOURCE IS NOT IN DISP UTE, THE ASSESSING OFFICER IS NOT EMPOWERED TO STEP INTO SHO ES OF THE TAXPAYER AND DECIDE THE APPLICATION THEREOF, BECAUS E THE AMOUNT CREDITED TO THE CAPITAL ACCOUNT OR OTHERWISE IS NOT IN DISPUTE. THE FACT IS ALSO NOT IN DISPUTE THAT THE ASSESSEE FAMIL Y IS HAVING ALL MAIN BUSINESSES I.E. SOURCE OF INCOME, IN JOINT CAP ACITY I.E. FIRM OR COMPANY. THEREFORE, CONTRIBUTION OF MARRIAGE EXPENS ES BY DIFFERENT FAMILY MEMBERS IS NOT UNCOMMON IN SUCH SITUATION. T HE ASSESSING OFFICER HAS SIMPLY DISBELIEVED THE PLAUSIBLE CONTEN TION OF THE ASSESSEE ON THE SURMISES AND WITHOUT ANY BASIS. THE OTHER 71 CONTENTION THAT THE ASSESSEE HAS AVOIDED FURNISHING THE REQUISITE DETAILS SO AS NOT TO ENABLE THE ASSESSING OFFICER T O CROSS EXAMINE THE FACT WITH THE CONCERNED PERSONS WAS ALSO NOT FO UND CORRECT BECAUSE ALL THE FINANCIAL STATEMENTS OF ALL THE FAM ILY MEMBERS CONTAINING THE REQUISITE DETAILS OF THE IMPUGNED EX PENDITURE WERE WELL WITH THE ASSESSING OFFICER AS HE HIMSELF HAS P ASSED THE ASSESSMENT ORDERS IN ALL THE CASES. FURTHER, THE AS SESSING OFFICER HIMSELF HAS GRANTED REDUCTION OF CERTAIN AMOUNT FRO M THE INITIAL PROPOSED ADDITION OF 1,46,44,533/- ON THIS ISSUE, ON THE BASIS OF EXPLANATION ON BEHALF OF ASSESSEE GIVEN IN WRITING VIDE SUBMISSION DATED 01.11.2011. ON PERUSAL OF THE SAID SUBMISSION , IT WAS TRANSPIRED THAT THE ASSESSEE HAS GIVEN COMPLETE SUB MISSION IN RESPECT OF ALL THE SEIZED DOCUMENTS AS REFERRED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER. THEREFORE, THE ASS ESSING OFFICER WAS NOT JUSTIFIED TO STATE THE ASSESSEE HAS AVOIDED FOR GIVING SUBMISSION ON THE IMPUGNED ISSUE. THE ITEM-WISE DI SCUSSION IN RESPECT OF THE IMPUGNED ADDITION OF 1,18,69,341/- IS AS UNDER: A) ADDITION OF 1,22,201/- ANNEXURE A-3/20 PAGE NO.4 TO 15. THE SAID PAGES WERE IN RESPECT OF PERSONAL EXPEN DITURE RELATED TO THE BROTHER OF THE ASSESSEE MR. VIJAYKUM AR LODHA AND VIJAYKUMAR LODHA HUF, WHICH IS DISCLOSED BY THEM IN THEIR FINANCIAL STATEMENTS. IN SUPPORT OF THE SAME THE A SSESSEE HAS FILED THE CAPITAL ACCOUNT AS WELL AS ACCOUNT EXTRACT OF G OLD OF THE SAID PARTIES AS APPEARING IN THEIR FINANCIAL STATEMENTS. THE PERSONAL EXPENDITURE AMOUNTING TO 1,31,828/-INCURRED BY MR. VIJAYKUMAR B LODHA AND HIS FAMILY ARE ACCOUNTED AS DRAWINGS IN THE CAPITAL ACCOUNT OF MR. VIJAYKUMAR B LODHA AND 96,490/- IS RELATED TO INVESTMENT MADE IN GOLD PERTAINING TO VIJAYKUMAR B LODHA HUF ACCOUNTED IN THE STATEMENT OF AFFAIRS OF VIJAYKUMAR B LODHA HUF. THE SAID EXPENDITURE/INVESTMENT IS WELL ACCOUNTED I N THE BALANCE SHEET OF MR. VIJAYKUMAR B LODHA AND HIS HUF. THE S AID BUNDLE 72 ALSO FOUND FROM THE RESIDENTIAL PREMISES OF MR. VIJ AYKUMAR B LODHA AND ALSO ADMITTED AS BELONGING TO HIM. THE NOTING O F THE IMPUGNED ADDITION ARE OUT OF THE SAID AMOUNT ALREADY DISCLOS ED IN THE RESPECTIVE FINANCIAL STATEMENTS OF MR. VIJAYKUMAR B LODHA AND HIS HUF. THE SAID FINANCIAL STATEMENTS HAVE NOT BEEN RE JECTED OR REBUTTED BY THE ASSESSING OFFICER EITHER IN THE ASS ESSMENT ORDER OR IN THE REPORT. THEREFORE, IN VIEW OF THIS, ADDITION OUT OF NOTING ON PAGE NOS. 4 TO 15 OF ANNEXURE A-3 AMOUNTING TO 1,22,201/- HAS RIGHTLY BEEN DELETED BY CIT(A). THIS REASONED FIND ING OF CIT(A) NEEDS NO INTERFERENCE FROM OUR SIDE. WE UPHOLD THE SAME. B) ADDITION OF 30,76,006/-, ANNEXURE A-1. PAGE NO. 7 TO 10: THESE PAGES CONTAINS NOTING OF PURCHASE OF JEWELRY AMOUNTING TO 30,76,006/-. OUT OF THE SAME RS. 20,00,000/- ARE D EBITED TO CAPITAL ACCOUNT OF MR. VIJAYKUMAR LODHA FOR THE YEA R UNDER REVIEW AND 7,05,269/- ARE DEBITED TO CAPITAL ACCOUNT OF DINES HKUMAR LODHA HUF FOR THE YEAR UNDER REVIEW. THE BALANCE 3,70,737/- ARE CLAIMED TO BE ADJUSTED AGAINST GOLD EXCHANGE OF BHA GCHANDJI LODHA IND & HUF. THE SAID EXPENSES ARE DULY DISCLOSED IN THE FINANCIAL STATEMENTS OF MR. VIJAYKUMAR LODHA, DINESHKUMAR LOD HA HUF. THE SAID FINANCIAL STATEMENTS HAVE NOT BEEN REJECTE D OR REBUTTED BY THE ASSESSING OFFICER EITHER IN THE ASSESSMENT ORDE R OR IN THE REPORT. FURTHER, IT IS A MATTER OF FACT THAT THE T OTAL GOLD ORNAMENTS BELONG TO SHRI BHAGCHAND LODHA INDIVIDUAL & HUF AS FOUND DURING THE SEARCH ACTION, IS NOT EXCEEDING THE SAME AS PER FINANCIAL STATEMENTS, EVEN AFTER CONSIDERING THE ABOVE REFERR ED GOLD GIVEN FOR EXCHANGE. THEREFORE CONSIDERING THE ABOVE FACTUAL A SPECT THE ADDITION OUT OF THE NOTING ON PAGE NOS. 7 TO 10 OF ANNEXURE A-L AMOUNTING TO 30,76,006/- WAS RIGHTLY DELETED BY THE CIT(A). TH IS REASONED FINDING OF CIT(A) NEEDS NO INTERFERENCE FR OM OUR SIDE. WE UPHOLD THE SAME. 73 C) ADDITIONS OF 24,10,556/-, ANNEXURE A-L PAGE NO.57 AND D) ADDITIONS OF 24,50,000/- ANNEXURE A-L. PAGE NO. 58. THE PAGE NOS.57 AND 58 OF ANNEXURE A-L WHICH ARE SI MILAR AND CONTAINS THE ROUGH ESTIMATES. ON CLOSE VERIFICATION OF THE SAME, IT WAS FOUND THAT THE SAID PAGES ARE RELATED TO THE MA RRIAGE OF SHAISHVEE I.E. DAUGHTER OF SHRI VIJAYKUMAR LODHA AN D THE SAME ARE NEITHER RELATED TO THE MARRIAGE OF DAUGHTER OF THE ASSESSEE NOR THE SAME WERE RELATED TO THE YEAR UNDER REVIEW. THIS FA CT IS WELL PROVED ON THE FACE OF THE SAID DOCUMENTS BECAUSE SOME OF T HE AMOUNTS I.E. 17,035/- AND 1,50,000/- AS NOTED ON SAID PAGE WERE LINKED TO PAGE NO. 64 OF SAME SEIZED ANNEXURE, WHICH THE ASSE SSING OFFICER HIMSELF ACCEPTED THAT THE SAID PAGE WAS RELATED TO MARRIAGE OF SHAISHVEE I.E. DAUGHTER OF MR. VIJAYKUMAR B LODHA, WHICH HELD IN THE MONTH OF MARCH ,2003. THIS CONTENTION OF THE A SSESSEE WAS NOT REBUTTED BY THE ASSESSING OFFICER. THEREFORE, CONS IDERING THESE FACTS, THE CIT(A) HELD THAT THE SAID PAGES CONTAINS MAINLY ESTIMATES IN RESPECT OF THE MARRIAGE OF SHAISHVEE I.E. DAUGHT ER OF MR. VIJAYKUMAR B. LODHA, HELD IN THE MONTH OF MARCH, 20 03, HENCE THE IMPUGNED ADDITIONS OUT OF THE NOTINGS ON PAGE NOS.5 7 AND 58 OF ANNEXURE A-L AMOUNTING TO 24,10,556/- AND 24,50,000/- RESPECTIVELY WERE RIGHTLY BEEN DELETED BY CIT(A). THIS REASONED FINDING OF CIT(A) NEEDS NO INTERFERENCE FROM OUR SI DE. WE UPHOLD THE SAME. E) ADDITION OF 32,90,000/-, ANNEXURE A-3, PAGE NO. 2. THE SAID PAGE CONTAINS ROUGH ESTIMATES OF MARRIAGE EXPENSES. THE ACTUAL EXPENSES INCURRED HAVE BEEN SHOWN BY THE ASSESSEE AND HIS FAMILY MEMBERS IN THEIR FINANCIAL STATEMENTS. T HIS CONTENTION OF THE ASSESSEE WAS NEITHER REBUTTED BY THE ASSESSING OFFICER WITH ANY CORROBORATIVE EVIDENCE NOR FOUND FALSE BY THE ASSES SING OFFICER. NO EVIDENCE WAS FOUND DURING THE ASSESSMENT PROCEEDING S TO ESTABLISH THAT THE IMPUGNED EXPENSES ARE ACTUALLY INCURRED BY THE ASSESSEE 74 AND NOT DISCLOSED BY THE ASSESSEE. THEREFORE, THE I MPUGNED ADDITION OF 32,90,000/- MADE ON ACCOUNT OF NOTING ON PAGE NO.2 OF ANNEXURE A-3 WAS RIGHTLY DELETED BY CIT(A). THI S REASONED FINDING OF CIT(A) NEEDS NO INTERFERENCE FROM OUR SI DE. WE UPHOLD THE SAME. IN VIEW OF THE ABOVE, THE ADDITION OF 1,18,69,341/- WAS REDUCED TO 5,20,578/- [ 1,18,69,341/- - ( 2,60,000/- + 2,49,490/- + 11,088/-)] AND THE ASSESSEE GOT RELIEF OF 1,13,48,763/-. THIS REASONED FINDING OF CIT(A) NEE DS NO INTERFERENCE FROM OUR SIDE. WE UPHOLD THE SAME. I T IS PERTINENT HERE TO MENTION THAT THIS GROUND HAS RAISED IN THE CONTENTION THAT THE ASSESSING OFFICER HAS MADE ANOTHER ADDITION OF 1,22,201/- WHICH HAS ALREADY BEEN CONSIDERED BY THE ASSESSING OFFICER IN THE AMOUNT OF 1,18,69,341/-. IT WAS BROUGHT TO THE NOTICE OF CI T(A) THAT THE ADDITION OF 1,12,201/- WAS A DOUBLE ADDITION. THIS CONTENTION WAS FOUND CORRECT BY CIT(A) BECAUSE AN I DENTICAL ADDITION OF 1,12,201/- WAS INCLUDED IN 1,18,69,341/- WHICH WAS RIGHTLY DELETED BY HIM IN THE BEGINNING OF PARA 10. 4. SO, OTHER ADDITION WAS NOT JUSTIFIED AND THE SAME WAS RIGHTLY DELETED BY CIT(A). WITH UPHOLD THE SAME. THIS TAKES CARE OF GROUND NO.6 & 7. THE ASSESSEE HAS ALSO FILED CROSS OBJECTION, WHICH WAS NOT PRESSED, SO THE SAME IS DISMISSED AS NOT PRESSED. 54. AS A RESULT, THIS APPEAL OF REVENUE AS WELL AS CORRESPONDING CROSS OBJECTION OF ASSESSEE, ARE DISMISSED. 55. IN ITA NO.1960/PN/2012 FOR A.Y. 2010-11, THE RE VENUE HAS FILED THE APPEAL ON THE FOLLOWING GROUNDS. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE DISAL LOWANCE OF PART OF AGRICULTURAL INCOME AT RS.50,690/- EVEN THO UGH THE ASSESSEE HAS NOT PRODUCED ANY COGENT EVIDENCE IN RE SPECT OF HIS CLAIM OF THE AGRICULTURAL INCOME. 75 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDIT ION ON ACCOUNT OF PAYMENT OF CASH ADVANCE FOR PROPERTY AT RS.2,50,000/- 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) FAILED TO APPRECIATE THAT T HE DECLARATION OF ADDITIONAL INCOME OF RS.17,66,670/- WAS MADE UNDER SECTION 132(4) OF THE ACT AND WAS BASED ON INCRIMINATING EVIDENCE FOUND DURING THE COURSE OF S EARCH AND SEIZURE OPERATION. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN IGNORING THE EVIDE NCE ON RECORD IN THE FORM OF INCRIMINATING MATERIALS ON TH E BASIS OF WHICH THE VARIOUS ADDITIONS WERE MADE, THUS RENDERI NG THE DECISION PERVERSE AND CONTRARY TO THE EVIDENCE ON R ECORD. 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY, D ELETE AMEND ANY OF THE GROUNDS, AS PER CIRCUMSTANCES OF T HE CASE. 6. THE APPELLANT PRAYS LEAVE TO ADDUCE SUCH FURTHER EV IDENCE TO SUBSTANTIATE ITS CASE AS OCCASION MAY DEMAND. 56. THE FIRST ISSUE IS WITH REGARD TO DISALLOWA NCE OF PART OF THE AGRICULTURAL INCOME SHOWN IN THE RETURN OF INCOME A ND MAKING ADDITION THEREOF OF 50,690/-. A SIMILAR ISSUE AROSE IN THE ASSESSEES OWN CASE IN A.Y. 2007-08, IN WHICH WE HA VE DECIDED THE ISSUE IN FAVOUR OF ASSESSEE AND FOLLOWED IN A.Y. 20 08-09 VIDE PARAS 2.8 AND 3.6 RESPECTIVELY OF THIS ORDER. FACTS BEIN G SIMILAR, SO FOLLOWING THE SAME REASONING AROSE IN ASSESSEES OW N CASE FOR A.Y. 2008-09 IN ITA NO.1542/PN/2012, WHEREIN WE HAVE UPH OLD THE DELETION MADE BY CIT(A). FACTS BEING SIMILAR, SO F OLLOWING THE SAME REASONING WE ARE NOT INCLINED TO INTERFERE WITH THE FINDING OF CIT(A), WHO HAS RIGHTLY DELETED THE ADDITION OF 50,690/- ON ACCOUNT OF DISALLOWANCE OF PART OF AGRICULTURAL INCOME BECAUSE THE LAND HOLDING AND AGRICULTURAL ACTIVITY THEREON IS NOT IN DISPUTE. 57. THE NEXT ISSUE IS WITH REGARD TO ADDITION O N ACCOUNT OF PAYMENT OF CASH ADVANCE FOR PROPERTY OF 2,50,000/-. THE MATTER 76 WAS CARRIED BEFORE FIRST APPELLATE AUTHORITY, WHERE IN THE VARIOUS CONTENTIONS WERE RAISED ON BEHALF OF ASSESSEE AND H AVING CALLED FOR REMAND REPORT FROM ASSESSING OFFICER AND COMMENTS F ROM AUTHORIZED REPRESENTATIVE ON BEHALF OF ASSESSEE, TH E CIT(A) HAS GRANTED THE RELIEF TO THE ASSESSEE VIDE PARA 6.3 OF ITS ORDER. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENU E. 57.1 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATERIAL ON RECORD, WE FIND THAT THE IMPUGNED ADVANCE AS WEL L AS REFUND OF THE SAME IS SHOWN IN THE BALANCE SHEET OF ASSESSEE IN RESPECTIVE YEARS. THE IMPUGNED ADDITION IS MADE BY ASSESSING OFFICER WITHOUT OBSERVING BASIC PRINCIPLES OF ACCOUNTING BECAUSE TH E SOURCE OF GIVING THE ADVANCE IS NOT IN DISPUTE, EVEN IF THE I MPUGNED ADVANCE WAS NOT GIVEN, THEN, THERE WOULD HAVE BEEN NO CHANG E IN CASH POSITION OF ASSESSEE. THE AMOUNT HAS ALREADY CLAIM ED TO BE RECEIVED BACK BY THE ASSESSEE, WHICH HAS NOT REBUTT ED BY THE ASSESSING OFFICER IN ANY MANNER. IN THE FACTS AND CIRCUMSTANCES, THE ADDITION MADE BY ASSESSING OFFICER OF 2,50,000/- ON ACCOUNT OF REFUND OF ADVANCE WAS NOT JUSTIFIED AND THE SAME WAS RIGHTLY DELETED BY CIT(A). WE UPHOLD THE SAME. 58. THE NEXT ISSUE IS WITH REGARD TO ADDITION OF 17,66,670/- MADE ON ACCOUNT OF ADDITIONAL INCOME OFFERED IN THE STATEMENT RECORDED U/S.132(4) DURING THE SEARCH ACTION, WHICH WAS DELETED BY CIT(A) VIDE PARA 8.3 OF ITS ORDER. 58.1 THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENUE, INTER ALIA, SUBMITTED THAT THE ORDER OF CI T(A) BE SET ASIDE AND THAT OF ASSESSING OFFICER BE RESTORED. ON THE OTHER HAND, THE LEARNED AUTHORIZED REPRESENTATIVE HAS SUPPORTED THE ORDER OF CIT(A) ON THE ISSUE. 58.2 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATERIAL ON RECORD, WE FIND THAT THE DISCLOSURE WAS GIVEN ON BEHALF OF 77 ASSESSEE WITHOUT REFERRING TO ANY SEIZED DOCUMENTS OR INVESTMENT OR EXPENDITURE IN PARTICULAR. THE SAID DISCLOSURE WAS GIVEN ON BEHALF OF ASSESSEE TO COVER EXPENDITURE, INVESTMENT S, ERROR AND OMISSIONS. THE ASSESSMENT OF ALL THE PARTIES TO TH E IMPUGNED DISCLOSURE WAS COMPLETED BY SAME ASSESSING OFFICER AFTER CONSIDERING THE SEIZED RECORD AS WELL AS INVESTMENT AND EXPENDITURE. IN VIEW OF ABOVE, THE ASSESSING OFFIC ER SHOULD NOT HAVE MADE ANY ADHOC ADDITION FOR SAME REASON. THE EVIDENTIARY VALUE OF THE DISCLOSURE WOULD HAVE WEIGHT ONLY IF S AME IS MADE WITH REFERENCE TO ANY SEIZED DOCUMENT OR VALUABLE OR EXP ENDITURE, ETC. THE PROVISIONS OF SECTION 132(4) IS CLEAR THAT THE STATEMENTS U/S.132(4) SHOULD BE CONFINED TO ANY BOOKS OF ACCOU NTS, DOCUMENTS, MONEY, BULLION, JEWELLERY OR OTHER VALU ABLE ARTICLE OR THINGS FOUND TO BE IN POSSESSION OF DEPONENT AND TH EN ONLY STATEMENTS COULD BE USED AS EVIDENCE. AS DISCUSSED EARLIER ALSO, THE CENTRAL BOARD OF DIRECTORATE TAXES VIDE CIRCULA R NO.F.NO.286/2/2003-IT(INV.) DATED 10.03.2003 HAS AL SO SPECIFICALLY DIRECTED THE FIELD OFFICERS NOT TO INSIST FOR DISCL OSURE OR CONFESSION DURING THE COURSE OF SEARCH ACTION IF THERE IS NO C REDIBLE EVIDENCE. IN THE PRESENT CASE, THERE IS NO EVIDENCE TO SUPPOR T SUCH DISCLOSURE. ACCORDINGLY, THE ADDITION OF 17,66,670/- MADE BY ASSESSING OFFICER WAS PURELY ON THE BASIS OF STATEMENTS AND N OT SUPPORTED BY ANY SUBSTANTIVE EVIDENCE, SAME WAS RIGHTLY DELETED BY CIT(A). WE UPHOLD THE SAME. THE ASSESSEE HAS ALSO FILED CROSS OBJECTION, WHICH WAS NOT PRESSED, SO THE SAME IS DISMISSED AS NOT PR ESSED. 59. AS A RESULT, THIS APPEAL OF REVENUE AS WELL AS CORRESPONDING CROSS OBJECTION OF ASSESSEE, ARE DISMISSED. THE ITA NOS.1816, 1817, 1818 & 1819/PN/2012 FOR A. Y. 2010-11 PERTAIN TO SMT. SUMAN ANILKUMAR LODHA, SMT. SAROJ VIJAYKUMAR LODHA, SMT. SUJATA DINESHKUMAR LODHA AND SHRI BHAGCHAND MOTILAL LODHA. 78 60. IN ITA NO.1816/PN/2012 FOR A.Y. 2010-11 IN CASE OF SMT. SUMAN ANILKUMAR LODHA, THE REVENUE HAS FILED THE AP PEAL ON THE FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDIT ION OF UNDISCLOSED INCOME EVEN THOUGH THE ASSESSEE ADMITTE D THE UNDISCLOSED INCOME OF RS. 17,66,670/- BUT FAILED TO DISCLOSE THE SAME IN THE RETURN OF INCOME. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED C1T(A) FAILED TO APPRECIATE THAT T HE DECLARATION OF ADDITIONAL INCOME OF RS. 17,66,670 /- WAS MADE UNDER SECTION 132(4) OF THE ACT AND WAS BASED ON INCRIMINATING EVIDENCE FOUND DURING THE COURSE OF S EARCH AND SEIZURE OPERATIONS. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) HAS ERRED IN IGNORING THE E VIDENCE ON RECORD IN THE FORM OF INCRIMINATING MATERIALS ON TH E BASIS OF WHICH THE VARIOUS ADDITIONS WERE MADE, THUS RENDERI NG THE DECISION PERVERSE AND CONTRARY TO THE EVIDENCE ON R ECORDS. 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY, D ELETE AMEND ANY OF THE GROUNDS, AS PER THE CIRCUMSTANCES OF THE CASE. 5. THE APPELLANT PRAYS LEAVE TO ADDUCE SUCH FURTHER EV IDENCE TO SUBSTANTIATE ITS CASE AS OCCASION MAY DEMAND. 61. THE ASSESSEE IS AN INDIVIDUAL AND IS A PARTNER IN M/S. M.B. CHEMICALS AND SHE IS ALSO HAVING INSURANCE COM MISSION AND INCOME FROM OTHER SOURCES. THE ASSESSEE FILED A RE TURN OF INCOME DECLARING TOTAL INCOME OF 3,59,900/- ON 01.04.2011. A SEARCH ACTION U/S.132(1) OF I.T ACT, 1961 WAS CONDUCTED ON 21.05.2009. THE ISSUE RELATES TO THE ADDITION OF 17,66,670/- MADE ON ACCOUNT OF ADDITIONAL INCOME OFFERED IN THE STATEMENT RECOR DED U/S. 132(4) DURING THE SEARCH ACTION. THE BRIEF FACTS OF THE I SSUE ARE THAT A STATEMENT OF MR. DINESHKUMAR LODHA WAS RECORDED U/S .132(4) ON 10.07.2009. IN THE SAID STATEMENT IN ANSWER TO Q. NO.20, AN AMOUNT OF 1.04 CRORE WAS OFFERED AS ADDITIONAL INCOME OF THR EE BROTHERS AND THEIR RESPECTIVE WIVES I.E. MR. VIJAYK UMAR LODHA, MR. 79 DINESHKUMAR LODHA, MR. DINESHKUMAR LODHA, MRS. SARO J V. LODHA, MRS. SUJATA D. LODHA AND MRS. SUMAN A. LODHA . NO BREAKUP OF THE DISCLOSURE OR SPECIFIC REFERENCE TO ANY SEIZED MATERIAL OR INVESTMENT OR EXPENDITURE WAS MADE IN R ESPECT OF THE SAID DISCLOSURE. THE ASSESSING OFFICER MADE ADDITIO N OF L/6' H OF THE SAID DISCLOSURE OF 1.04 CRORE IN THE HANDS OF ASSESSEE FOR THE REASON THAT THE ASSESSEE OR THE PERSONS ON WHOSE BE HALF THE SAID DISCLOSURE WAS GIVEN, HAVE NOT DISCLOSED THE SAME I N THEIR RETURNS OF INCOME. THE ASSESSING OFFICER SCRUTINIZED THE RE TURN OF INCOME AND MADE ADDITION OF 17,66,670/- ON ACCOUNT OF DISCLOSURE MADE DURING THE SEARCH ACTION. ETC. IN APPEAL, THE SAID ADDITION WAS DELETED BY THE CIT(A) VIDE 6.3 OF ITS ORDER. THE S AME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENUE. IN THIS RE GARD, WE FIND THAT A SIMILAR ISSUE AROSE IN ITA NO.1820/PN/2012, WHERE IN, WE HAVE UPHELD THE RELIEF GRANTED BY CIT(A) ON A SIMILAR AD DITION VIDE PARA 57.2 OF THIS ORDER AND FOLLOWED IN OTHER CASES IN T HIS ORDER. FACTS BEING SIMILAR, SO FOLLOWING THE SAME REASONING, WE ARE NOT INCLINED TO INTERFERE WITH THE FINDING OF CIT(A). WE UPHOLD THE SAME. THE ASSESSEE HAS ALSO FILED CROSS OBJECTION, WHICH WAS NOT PRESSED, SO THE SAME IS DISMISSED AS NOT PRESSED. 62. AS A RESULT, THIS APPEAL OF REVENUE AS WELL AS CORRESPONDING CROSS OBJECTION OF ASSESSEE, ARE DISMISSED. 63. IN ITA NO.1817/PN/2012 FOR A.Y. 2010-11 IN TH E CASE OF SMT. SAJOR VIJAYKUMAR LODHA, THE REVENUE HAS FILED THE APPEAL ON THE FOLLOWING GROUNDS. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDIT ION OF UNDISCLOSED INCOME EVEN THOUGH THE ASSESSEE ADMITTE D THE UNDISCLOSED INCOME OF RS. 17,66,670/- BUT FAILED TO DISCLOSE THE SAME IN THE RETURN OF INCOME. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) FAILED TO APPRECIATE THAT T HE 80 DECLARATION OF ADDITIONAL INCOME OF RS. 17,66,670/- WAS MADE UNDER SECTION 132(4) OF THE ACT AND WAS BASED ON INCRIMINATING EVIDENCE FOUND DURING THE COURSE OF S EARCH AND SEIZURE OPERATIONS. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) HAS ERRED IN IGNORING THE E VIDENCE ON RECORD IN THE FORM OF INCRIMINATING MATERIALS ON THE BASIS OF WHICH THE VARIOUS ADDITIONS WERE MADE, THUS REND ERING THE DECISION PERVERSE AND CONTRARY TO THE EVIDENCE ON RECORDS. 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY, D ELETE AMEND ANY OF THE GROUNDS, AS PER THE CIRCUMSTANCES OF THE CASE. 5. THE APPELLANT PRAYS LEAVE TO ADDUCE SUCH FURTHER EV IDENCE TO SUBSTANTIATE ITS CASE AS OCCASION MAY DEMAND 64. THE ISSUE RELATES TO THE ADDITION OF 17,66,670/- MADE ON ACCOUNT OF ADDITIONAL INCOME OFFERED IN THE STAT EMENT RECORDED U/S. 132(4) DURING THE SEARCH ACTION. A SIMILAR I SSUE AROSE IN ITA NO.1816/PN/2012, WHEREIN WE HAVE UPHELD THE ORDER O F CIT(A) VIDE PARA 57.2 OF THIS ORDER. FACTS BEING SIMILAR, SO F OLLOWING THE SAME REASONING, WE ARE NOT INCLINED TO INTERFERE WITH TH E FINDING OF CIT(A). WE UPHOLD THE SAME. THE ASSESSEE HAS ALSO FILED CR OSS OBJECTION, WHICH WAS NOT PRESSED, SO THE SAME IS DISMISSED AS NOT PRESSED. 65. AS A RESULT, THIS APPEAL OF REVENUE AS WELL AS CORRESPONDING CROSS OBJECTION OF ASSESSEE, ARE DISMISSED. 66. IN ITA NO.1818/PN/2012 FOR A.Y. 2010-11 IN CASE OF SMT. SUJATA DINESH LODHA, THE REVENUE HAS FILED THE APPE AL ON THE FOLLOWING GROUNDS. 1. THE ASSESSEE IS A PARTNER IN A FIRM FROM WHICH HE D ERIVES INTEREST INCOME, REMUNERATION AND INCOME FROM OTHER SOURCES. THERE WAS AN ACTION U/S. 132(1) ON 21.05.2 009 AT THE RESIDENTIAL PREMISES OF SHRI. DINESHKUMAR BHAGC HAND LODHA, NEAR BHAMRE HOSPITAL, CAMP ROAD, MALEGAON. F ROM THE SEARCHED PREMISES OF SHRI. DINESHKUMAR BHAGCHAN D 81 LODHA, JEWELLERY CLAIMED TO BE BELONGING TO THE ASS ESSEE WAS SEIZED. ACCORDINGLY, PROCEEDINGS U/S. 153C OF T HE IT. ACT WERE INITIATED. THE ASSESSEE FILED HER RETURN O F INCOME ON 31.03.2011, DECLARING TOTAL INCOME AT RS. 2,17,7 90/-. THE ASSESSMENT WAS FINALIZED ON 29/12/2011, DETERMI NING TOTAL INCOME OF THE ASSESSEE AT RS.19,84,460/- MAKI NG FOLLOWING ADDITIONS- A. ADDITION ON ACCOUNT OF ADDITIONAL INCOME OFFERED BUT NOT RETURNED AT RS.17,66,670/- 2. WHILE RECORDING THE STATEMENT, DURING THE COURSE OF SEARCH AND SEIZURE ACTION ON 10.07.2009, SHRI DINESH BHAGC HAND LODHA, IN REPLY TO QUESTION NO. 20, HAD CONFIRMED T HAT THE GROUP HAVE AVAILED OF THE BENEFITS OF THE PROVISION S OF SECTION 271(L)(C), EXPLANATION 5, R.W.S. 271AAA, OF THE IT. ACT AND DECLARING A SUM OF RS. 1.04 CRORE AS ADDITIONAL INC OME. ASSESSEE'S SHARE IN DISCLOSURE OF INCOME WAS TO THE TUNE OF RS. 17,66,670/-. AS THE ASSESSEE HAD FAILED TO FURNISH THE DETAILS EVEN AFTER THE REPEATED REQUEST, THE ADMITTED INCOM E TO THE TUNE OF RS. 17,66,670/-, WAS ADDED TO THE TOTAL INC OME OF THE ASSESSEE. A DETAILED DISCUSSION HAS BEEN MADE IN PA RA 6 OF THE ASSTT. ORDER. 67. THE ISSUE RELATES TO THE ADDITION OF 17,66,670/- MADE ON ACCOUNT OF ADDITIONAL INCOME OFFERED IN THE STATEME NT RECORDED U/S. 132(4) DURING THE SEARCH ACTION. A SIMILAR ISSUE AROSE IN ITA NO.1816/PN/2012, WHEREIN WE HAVE UPHELD THE ORDER O F CIT(A) VIDE PARA 12.1 OF THIS ORDER AND FOLLOWED IN ITA NO.1817 /PN/2012 VIDE PARA 13.1 OF THIS ORDER. FACTS BEING SIMILAR, SO F OLLOWING THE SAME REASONING, WE ARE NOT INCLINED TO INTERFERE WITH TH E FINDING OF CIT(A). WE UPHOLD THE SAME. THE ASSESSEE HAS ALSO FILED CR OSS OBJECTION, WHICH WAS NOT PRESSED, SO THE SAME IS DISMISSED AS NOT PRESSED. 68. AS A RESULT, THIS APPEAL OF REVENUE AS WELL AS CORRESPONDING CROSS OBJECTION OF ASSESSEE, ARE DISMISSED. 69. IN ITA NO.1819/PN/2012 FOR A.Y. 2009-10 IN CASE OF SHRI BHAGCHAND MOTILAL LODHA, THE REVENUE HAS FILE THE A PPEAL ON THE FOLLOWING GROUNDS. 82 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE DISAL LOWANCE OF PART OF AGRICULTURE INCOME AT RS. 45,000/- EVEN THO UGH THE ASSESSEE HAS NOT PRODUCED ANY COGENT EVIDENCE IN SU PPORT OF THE CLAIM OF AGRICULTURAL INCOME. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDIT ION ON ACCOUNT OF UNACCOUNTED AND UNEXPLAINED CASH CREDIT OF RS. 10,00,000/- 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) HAS FAILED TO APPRECIATE TH AT THE AMOUNT OF CASH RECEIPT OF RS. 10,00,000/- ON 26/02/ 2008 AS EVIDENCED BY THE INCRIMINATING SEIZED MATERIAL IS N OT REFLECTED IN THE BALANCE SHEET OF THE ASSESSEE AS ON 31/03/20 08 AND HENCE IS AN UNRECORDED AND UNEXPLAINED CREDIT I N THE HANDS OF THE ASSESSEE. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) HAS FAILED TO APPRECIATE TH AT THE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF REFUND OF RS. 10,00,000/- TO M/S. PARAS BUILDCON ON 13/06/2008 WI TH ANY DOCUMENTARY EVIDENCE EXPECT STATING THAT THE AMOUNT OF CASH RECEIVED ON 26/2/2008 WAS RETURNED BACK WHICH, AMOU NT ITSELF IS UNEXPLAINED CREDIT IN THE HANDS OF THE AS SESSEE. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) HAS ERRED IN IGNORING THE E VIDENCE ON RECORD IN THE FORM OF INCRIMINATING MATERIALS ON TH E BASIS OF WHICH THE VARIOUS ADDITIONS WERE MADE, THUS RENDERI NG THE DECISION PERVERSE AND CONTRARY TO THE EVIDENCE ON R ECORDS. 6. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY, D ELETE AMEND ANY OF THE GROUNDS, AS PER THE CIRCUMSTANCES OF THE CASE. 7. THE APPELLANT PRAYS LEAVE TO ADDUCE SUCH FURTHER EV IDENCE TO SUBSTANTIATE IT'S CASE AS OCCASION MAY DEMAND. 70. THE FIRST ISSUE IS WITH REGARD TO DISALLOWANCE OF PART OF AGRICULTURAL INCOME OF 45,000/- FOR THE MAIN REASON THAT THE ASSESSEE HAS NOT FURNISHED THE SUPPORTING EVIDENCES LIKE SALE PATTIS, MARKET CERTIFICATES BILLS FOR FERTILIZERS, ETC. TO SUBSTANTIATE THE CORRECTNESS OF THE AGRICULTURAL INCOME. A SIMILAR ISSUE AROSE IN ITA NO.1384/PN/2012, WHEREIN WE HAVE UPHELD THE ORDER O F CIT(A) VIDE 83 PARA 4 OF THIS ORDER AND FOLLOWED IN OTHER CASES OF THIS ORDER. MOREOVER, AGRICULTURAL HOLDING AND AGRICULTURAL ACT IVITY THEREON HAS NOT BEEN DISPUTED BY REVENUE OFFICERS. FACTS BEING SIMILAR, SO FOLLOWING THE SAME REASONING, WE ARE NOT INCLINED T O INTERFERE WITH THE FINDING OF CIT(A). WE UPHOLD THE SAME. 71. THE NEXT ISSUE IS WITH REGARD TO ADDITION OF 10,00,000/- ON ACCOUNT OF PAYMENT OF ADVANCES FOR PROPERTY AND RECEIPT THEREOF MADE BY THE ASSESSING OFFICER. 71.1 THE MATTER WAS CARRIED BEFORE FIRST APPELLATE AUTHORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF ASSESSEE AND HAVING CONSIDERED THE SAME, THE CIT(A) HAS DELE TED THE ADDITION IN QUESTION AFTER CALLING FOR REMAND REPORT FROM TH E ASSESSING OFFICER AND COMMENTS THEREOF FROM ASSESSEE. THE SA ME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENUE, INTER ALIA, SUBMITTED THAT THE ORDER OF CIT(A) BE SET ASIDE AND THAT OF ASSESS ING OFFICER BE RESTORED ON THE ISSUE. ON THE OTHER HAND, THE LEAR NED AUTHORIZED REPRESENTATIVE HAS SUPPORTED THE ORDER OF CIT(A) ON THE ISSUE. 71.2 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATERIAL ON RECORD, WE FIND THAT NOTING ON PAGE 3 OF BUNDLE NO.A-21 DATED 26.02.2008 SEIZED FROM THE PREMISES OF SHRI NEMICHA ND MODI REVEALS THAT THE PAYMENT OF 10,00,000/- BY MODI TO THE ASSESSEE AND NOTING ON BACK SIDE OF THE PAGE NO.32 BUNDLE NO .A-28, DATED 13.06.2008 SEIZED FROM THE PREMISES OF SHRI NEMICHA ND MODI REVEALS THE RECEIPT OF 10,00,000/- BY SHRI MODI FROM THE ASSESSEE. IN THE ASSESSMENT ORDER, ASSESSING OFFICER HAS HELD THAT THE AMOUNT OF 10,00,000/- WHICH WAS RECEIVED BY ASSESSEE FROM MO DI ON 26.02.2008 WAS REFUNDED BY ASSESSEE ON 13.06.200 8. HOWEVER, THE ASSESSEES STAND HAS BEEN THAT BOTH TRANSACTION S WERE SEPARATE TRANSACTIONS BECAUSE NOTING DATED 26.02.2008 CONTAI NS THE AMOUNT OF 10,00,000/- AS REFUND AS CLEARLY APPEARS FROM THE SEIZED PAGE NO.3 OF THE BUNDLE NO.A-21. AS REGARDS THE PAYMENT OF 84 10,00,000/- BY ASSESSEE TO MODI ON 13.06.2008, IT W AS CONTENDED ON BEHALF OF ASSESSEE THAT THE SAID AMOUNT WAS RECE IVED FROM SHRI HEMANT MODI ON 29.05.2008 AS ADVANCE. THE CONFIRMA TION OF SHRI HEMANT MODI WAS ALSO ON RECORD. HOWEVER, IN REPORT , THE ASSESSING OFFICER HAS MENTIONED THAT THE AMOUNT OF 10,00,000/- RECEIVED BY ASSESSEE FROM SHRI MODI ON 26.02.2008 IS NOT SHOWN AS LIABILITY BY ASSESSEE IN THE BALANCE SHEET. THEREFORE, THE SAID AMOUNT WAS NOT AVAILABLE WITH THE ASSESSEE WHILE MAKING REPAYMENT THEREOF ON 13.06.2008. THE CIT(A) HAS OBSERVED THAT THE IMPUG NED ADDITION IS NOT SUSTAINABLE BECAUSE IF ASSESSING OFFICER HIMSEL F HAS ACCEPTED THE RECEIPT OF ADVANCE BY ASSESSEE EVEN THEN, THE S AME IS NOT SHOWN IN THE BALANCE SHEET, THE SAME SHALL BE AVAIL ABLE AS SOURCE FOR MAKING REFUND THEREOF. IN THE PRESENT CASE, TH E CLAIM OF ASSESSEE THAT THE REFUND OF ADVANCE OF 10,00,000/- ON 13.06.2008 TO SHRI HEMANT MODI WAS MADE OUT OF ADVANCE RECEIVE D FROM HEMANT MODI ON 29.05.2008. IT IS UNDISPUTED THAT H EMANT MODI IS REGULARLY ASSESSED TO INCOME TAX, WHO HAS ALSO CONF IRMED THE SAID TRANSACTION. THE ASSESSING OFFICER WAS NOT JUSTIFI ED TO DISBELIEVE THE TRANSACTION WITH HEMANT MODI, ONE OF THE PARTNE R OF M/S. SHREE PARAS BUILDCON, THAT THE SAME IS NOT APPEARING IN C APITAL ACCOUNT. HE WAS NOT JUSTIFIED BECAUSE THE TRANSACTION WAS SQ UARED OFF DURING THE YEAR ITSELF, THEN THE SAME WOULD NEVER APPEAR I N THE CAPITAL ACCOUNT. FURTHER, THE ASSESSING OFFICER HAS IGNORE D THE FACT THAT THIS IS NOT THE CASE, WHEREIN, ANY LOAN OR DEPOSIT OR ADVANCE IS TAKEN OR CREDITED. IN THE PRESENT CASE, THE AMOUNT ALREADY GIVEN IS CLAIMED TO BE RECEIVED BACK BY THE ASSESSEE. THE A SSESSING OFFICER HAS NOT DISPUTED THE CONTENTION OF ASSESSEE WITH AN Y COGENT EVIDENCE OR REASONING OR HAS CARRIED OUT ANY INQUIR Y TO REBUT THE EXPLANATION PUT FORWARD ON BEHALF OF ASSESSEE AND C ONFIRMATION OF THE PARTY IN THIS REGARD. IN VIEW OF ABOVE FACTS A ND ALSO CONFIRMATION OF THE RELATED PARTIES, THE ADDITION M ADE BY ASSESSING OFFICER OF 10,00,000/- ON ACCOUNT OF REFUND OF ADVANCE GIVEN WAS NOT JUSTIFIED AND THE SAME WAS RIGHTLY DELETED BY C IT(A), WHICH 85 NEEDS NO INTERFERENCE FROM OUR SIDE. WE UPHOLD THE SAME. THE ASSESSEE HAS ALSO FILED CROSS OBJECTION, WHICH WAS NOT PRESSED, SO THE SAME IS DISMISSED AS NOT PRESSED. 72. AS A RESULT, THIS APPEAL OF REVENUE AS WELL AS CORRESPONDING CROSS OBJECTION OF ASSESSEE, ARE DISMISSED. 73. IN THE RESULT, ALL THE APPEALS FILED BY THE REV ENUE AND CORRESPONDING CROSS OBJECTIONS FILED BY THE ASSESSE ES ARE DISMISSED AS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT ON THIS THE 20 TH DAY OF MARCH, 2014. SD/- SD/- (G.S. PANNU) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 20 TH MARCH, 2014 GCVSR COPY TO:- 1. DEPARTMENT 2. ASSESSEE 3. THE CIT(A)-I, NASHIK 4. THE CIT-I, NASHIK 5. THE DR, B BENCH, I.T.A.T., PUNE. 6. GUARD FILE BY ORDER //TRUE COPY// SENIOR PRIVATE SECRETARY, I.T.A.T., PUNE