Smt. Sarita Jain, Gwalior V. A.C.I.T., Circle-1, Gwalior

CO 41/AGR/2011

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 7088 (ITAT-AGRA)
• Duration Of Justice: 6 month(s) 23 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 11-05-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 09-04-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 19-10-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: V BAPNA
• Keywords: Search and seizure
• Section: 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO.153/AGR/2011 ASSESSMENT YEAR: 2008-09 ASSTT. COMMISSIONER OF INCOME TAX, VS. SMT. S ARITA JAIN, CIRCLE 1, GWALIOR. VS. W/O. SHRI SUNIL JAIN, PROP. M/S AHINSA DIAMOND & JEWELLERS, SARAFA BAZAR, LASHKAR, GWALIOR. (PAN : AESPJ 2870 B) C.O. NO.41/AGR/2011 (IN ITA NO.153/AGR/2011) ASSESSMENT YEAR: 2008-09 SMT. SARITA JAIN, VS. ASSTT. COMMISSIONER OF INC OME TAX, W/O. SHRI SUNIL JAIN, CIRCLE 1, GWALIOR. PROP. M/S AHINSA DIAMOND & JEWELLERS, SARAFA BAZAR, LASHKAR, GWALIOR. (PAN : AESPJ 2870 B) (APPELLANTS) (RESPONDENTS) REVENUE BY : SHRI WASEEM ARSHAD, SR. D.R. ASSESSEE BY : SHRI V. BAPNA, C.A. DATE OF HEARING : 09.04.2012 DATE OF PRONOUNCEMENT : 11.05.2012 ORDER PER A.L. GEHLOT, ACCOUNTANT MEMBER: ITA NO.153 & CO-41/AGR/2011 A.Y. 2008-09 2 THE APPEAL BY THE REVENUE AND THE CROSS OBJECTION B Y THE ASSESSEE HAVE BEEN FILED AGAINST THE ORDER DATED 15.02.2011 PASSE D BY THE LD. CIT(A), GWALIOR FOR THE ASSESSMENT YEAR 2008-09. 2. THE GROUNDS RAISED BY THE REVENUE IN ITS APPEAL ARE AS UNDER :- WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE CIT(APPEAL) HAS ERRED IN :- 1. DELETING THE ADDITION OF ` 10,500/- ON ACCOUNT OF INCOME FROM HOUSE PROPERTY ? 2. DELETING THE ADDITION OF ` 13,73,792/- ON ACCOUNT OF UNEXPLAINED JEWELLERY ? 3. DELETING THE ADDITION OF ` 2,84,356/- ON ACCOUNT OF UNEXPLAINED ADVANCE OF JEWELLERY ? 4. DELETING THE ADDITION OF ` 90,000/- ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT ? THE APPELLANT RESERVES HIS RIGHT TO ADD, AMEND OR A LTER THE GROUND OF APPEAL ON OR BEFORE THE DATE; THE APPEAL IS FINALLY HEARD FOR DISPOSAL. 3. THE GROUNDS RAISED BY THE ASSESSEE IN ITS CROSS OBJECTION ARE AS UNDER :- 1. THE LEARNED CIT(A) ERRED IN CONFIRMING ` 1,02,000/- ON ACCOUNT OF UNEXPLAINED INCOME IN FORM OF UNEXPLAINE D SILVER JEWELLERY IS ILLEGAL, UNJUSTIFIED AND BAD IN LAW. ITA NO.153 & CO-41/AGR/2011 A.Y. 2008-09 3 2. THE LEARNED CIT(A) ERRED IN CONFIRMING ` 26,200/- ON ACCOUNT OF UNACCOUNTED JEWELLERY ON THE BASIS OF RECEIPT IN THE NAME OF MAHESH SONI IS ILLEGAL, UNJUSTIFIED AND BAD IN LAW. CRAVE THE APPELLANT CRAVE FOR ADDING, DELETING AND/OR MOD IFYING ANY GROUNDS OF APPEAL BEFORE ITS FINAL HEARING. PRAYER THE APPELLANT PRAY YOUR HONOUR TO KINDLY GRANT RELI EF AND FOR YOUR THIS KINDNESS SHE SHALL REMAIN VERY GRATEFUL. 4. THE BRIEF FACTS OF THE CASE ARE THAT A SURVEY UN DER SECTION 133A OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) WAS CO NVERTED INTO SEARCH UNDER SECTION 132A OF THE ACT ON 20.02.2008. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS SHO WN RENTAL INCOME OF ` 42,000/-. SINCE THE ASSESSEE DID NOT FURNISH ANY RENT AGREEME NT TO VERIFY THE RENTAL INCOME, THEREFORE, THE ASSESSING OFFICER ESTIMATED RENTAL I NCOME AT ` 52,500/-. THUS, HE MADE THE ADDITION OF ` 10,500/- WHICH HAS BEEN DELETED BY THE CIT(A) AS UN DER :- (CIT(A) PARA NO.3.2) APPELLANTS SUBMISSIONS ALONG WITH ASSESSMENT ORDE R AND RECORDS HAVE BEEN CONSIDERED CAREFULLY. IT IS SEEN FROM PERUSAL OF RECORDS THAT THE APPELLANT HAS BEEN REGULARLY DECLA RING RENTAL INCOME AT ` 21,000/- SINCE A.Y. 2002-03 TILL 2006-07. FOR ALL THESE YEARS ASSESSING OFFICER HAS ESTIMATED THE SAME AT ` 30,000/- WHICH IN APPEALS HAS BEEN TAKEN AT DECLARED VALUE OF ` 21,000/- FOR THE REASONS MENTIONED THEREIN. FOR A.Y. 2007-08 NO SUCH INCOME HAS BEEN DECLARED NEITHER ASSESSED BY THE ASSESSING OFFICER. FOR THE ITA NO.153 & CO-41/AGR/2011 A.Y. 2008-09 4 ASSESSMENT YEAR UNDER CONSIDERATION, NET RENTAL INC OME OF ` 42,000/- HAS BEEN ESTIMATED AT ` 52,500/- (NET) ON GROUND OF FAILURE TO SUBMIT RENT AGREEMENT. HOWEVER, ASSESSING OFFICER HAS FAI LED TO BRING ON RECORD ANY EVIDENCE TO SHOW THAT THE APPELLANT HAS INDEED EARNED MORE INCOME UNDER THIS HEAD THAN DECLARED. THIS IS DESPITE THE FACT THAT EXTENSIVE SEARCH AND SEIZURE OPERATIONS HAVE B EEN CARRIED OUT AT THE BUSINESS AND RESIDENTIAL PREMISES OF THE APPELL ANT ALONGWITH HER FAMILY MEMBERS ON 20.02.2008 COVERING ABOUT 11 MONT HS OF THE RELEVANT PREVIOUS YEAR. FURTHER, ASSESSING OFFICER HAS NOT GIVEN ANY BASIS FOR HIS ESTIMATION OF RENTAL INCOME AT ` 52,500/- (NET) AND THAT TOO WITHOUT GIVING ANY CREDIT FOR ALLOWABLE DEDUCTI ON U/S 24 WHEN THE APPELLANT HERSELF HAS DECLARED GROSS RENTAL INCOME AT ` 60,000/-. ACCORDINGLY, ADDITION OF ` 10,500/- MADE ON THIS ACCOUNT IS, HEREBY, DELETED. 5. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PAR TIES AND PERUSED THE RECORDS. WE NOTICE THAT THE ASSESSEE HAS BEEN REGULARLY DECL ARING RENTAL INCOME AT ` 21,000/- SINCE ASSESSMENT YEAR 2002-03 TO 2006-07. IN ALL T HESE YEARS, THE ASSESSING OFFICER ESTIMATED THE INCOME AT ` 30,000/- BUT ON APPEAL THE DECLARED RENTAL INCOME OF ` 21,000/- WAS ACCEPTED AS PER THE REASONS MENTIONED IN THE ORDER OF CIT(A) FOR ASSESSMENT YEAR 2007-08. THE CIT(A) NOTED THE FACT THAT EXCEPT THE OBSERVATIONS OF THE ASSESSING OFFICER THAT THE ASSESSEE FAILED TO PROVIDE RENT AGREEMENT, THERE IS NO OTHER RECORD OR EVIDENCE AVAILABLE ON RECORD WHI CH SUPPORTS THE ESTIMATION MADE BY THE ASSESSING OFFICER. THE ASSESSING OFFIC ER DID NOT GIVE ANY BASIS FOR ESTIMATION OF RENTAL INCOME OF ` 52,500/- (NET). THE CIT(A) ALSO NOTED THAT THE ASSESSING OFFICER IS NOT CORRECT IN ESTIMATING THE NET INCOME WITHOUT GIVING ANY CREDIT FOR ALLOWING DEDUCTION UNDER SECTION 24 OF T HE ACT. THE CIT(A) FOUND THAT ITA NO.153 & CO-41/AGR/2011 A.Y. 2008-09 5 THE ASSESSEE HERSELF HAS DECLARED GROSS RENTAL INCO ME AT ` 60,000/-. THEREFORE, THERE IS NO QUESTION OF ADDITION OF ` 10,500/-. SINCE THERE IS NO CONTRARY MATERIAL NEIT HER ON RECORD NOR FURNISHED AT THE TIME OF HEARING BEFO RE US, IN THE LIGHT OF THE FACT, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A) ON THE ISSUE. ORDER OF THE CIT(A) IS ACCORDINGLY CONFIRMED. 6. THE BRIEF FACTS IN RESPECT OF SECOND GROUND OF R EVENUES APPEAL ARE THAT DURING THE COURSE OF SEARCH 416.65 GRAMS OF GOLD JE WELLERY AND 15.50 KGS. OF SILVER JEWELLERY WAS FOUND AT THE RESIDENCE OF THE ASSESSE E. THE ASSESSING OFFICER MADE ADDITION ON ACCOUNT OF JEWELLERY AT ` 13,73,792/- ON THE GROUND THAT THE ASSESSEE HAS DECLARED GOLD JEWELLERY IN HER WEALTH TAX RETUR N AT 1272.03 GRAMS WHEREAS AT THE TIME OF SEARCH THE GOLD JEWELLERY FOUND WAS ONL Y 416.65 GRAMS. THE DETAILS OF CALCULATION NOTED BY THE CIT(A) AT PAGE NO.3 ARE AS UNDER:- GOLD JEWELLERY (1688.680 GM 416.65 GM = 1272.03 GM) : 10 GM GOLD = 10,800/- AT THE TIME OF SEARCH 1272.03 X 10800 10 = 13,73,792/- 7. THE ASSESSING OFFICER ALSO MADE ADDITION OF ` 1,02,000/- ON ACCOUNT OF SILVER JEWELLERY ON THE GROUND THAT IN WEALTH TAX RETURN T HE ASSESSEE HAS DECLARED 1.9 KGS. OF SILVER JEWELLERY WHEREAS AT THE TIME OF SEA RCH SILVER JEWELRY FOUND WAS ITA NO.153 & CO-41/AGR/2011 A.Y. 2008-09 6 15.50 KGS. THE DETAILS OF CALCULATION NOTED BY THE CIT(A) AT PAGE NO.3 ARE AS UNDER:- SILVER JEWELLERY (15.50 KG 1.9 KG = 13.6 KG) 1 KG. = 7,500/- AT THE TIME OF SEARCH 13.6 X 7500 = 1,02,000/- ` 13,73,792/- + ` 1,02,000/- 8. THE CIT(A) DELETED THE ADDITION IN RESPECT OF GO LD JEWELLERY. HOWEVER, SHE CONFIRMED THE ADDITION ON ACCOUNT OF SILVER JEWELLE RY AT ` 1,02,000/-. THE FINDING GIVEN BY THE CIT(A) AT PAGE NOS.4 & 5 OF HER ORDER IS AS UNDER :- THUS THE APPELLANT HAS BEEN DECLARING GOLD AND SIL VER JEWELLERY IN HER POSSESSION BY REGULAR FILING OF WE ALTH TAX RETURNS IN DUE COURSE WHICH HAVE ALSO BEEN ACCEPTED BY THE ASS ESSING OFFICER. IN RESPECT OF GOLD JEWELLERY ASSESSING OFFICER HAS TREATED 1272.03 GRAM AS UNDISCLOSED INVESTMENT ON THE GROUND THAT 4 16.65 GRAM ONLY HAVE BEEN FOUND DURING THE COURSE OF SEARCH OPERATI ONS WHEREAS AS PER HER WEALTH TAX RETURN AS ON 31.03.2008, 1688.68 GRAM IS SHOWN. HER SUBMISSIONS THAT 1340.22 GRAM HAS BEEN DEPOSIT ED WITH M/S JAINA JEWELLERS, A FAMILY FIRM, HAS BEEN REJECTED B Y THE ASSESSING OFFICER WITHOUT BRINGING ANY CONTRARY AND ADVERSE E VIDENCE ON RECORDS. THE MERE FACT THAT PERSONAL CAPITAL ACCOU NT OF THE APPELLANT DOES NOT SHOW THIS JEWELLERY DOES NOT MAKE IT UNEXP LAINED WHEN HER WEALTH TAX RETURN SHOWS THE TOTAL JEWELLERY AT 1688 .68 GRAMS. THE SAME ASSESSING OFFICER IS ASSESSING M/S JAINA JEWEL LERS ALSO BUT HAS DRAWN NO ADVERSE INFERENCE IN ITS CASE REGARDING DE POSIT OF 1340.22 GRAM OF APPELLANTS GOLD JEWELLERY AS SHOWN IN ITS BOOKS OF ACCOUNTS AND AS CONFIRMED BY IT. IN RESPECT OF SILVER JEWELLERY THE APPELLANT HAS B EEN DECLARING IT TO BE 1.9 KG ONLY IN HER RETURNS WHEREAS 15.5 KG HA S BEEN FOUND AND INVENTORISED. EXCESS OF 13.6 KG FOUND IS STATED TO BE BELONGING TO OTHER FAMILY MEMBERS IN RESPECT OF WHICH NO SEIZURE HAS BEEN MADE. ITA NO.153 & CO-41/AGR/2011 A.Y. 2008-09 7 THE FACT THAT THE SEARCH TEAM, IN ITS WISDOM, HAS N OT MADE SEIZURE OF SILVER JEWELLERY, IN ITSELF DOES NOT PROVE THAT IT IS FOUND EXPLAINED. DURING THE COURSE OF ASSESSMENT AS WELL AS APPEAL P ROCEEDINGS THE APPELLANT HAS NOT BEEN ABLE TO GIVE ANY SATISFACTOR Y EXPLANATION READING EXCESS SILVER OF 13.6 KG FOUND DURING THE C OURSE OF SEARCH OPERATIONS. THUS, THE ASSESSING OFFICER WAS JUSTIF IED IN TREATING THE SAME AS UNDISCLOSED INVESTMENT. ACCORDINGLY, ADDIT ION OF ` 1,02,000/- MADE ON ACCOUNT OF SILVER JEWELLERY IS CONFIRMED WH EREAS ON THE BASIS OF FACTS STATED IN PRECEDING PARAS, ADDITION OF ` 13,73,792/- MADE ON ACCOUNT OF GOLD JEWELLERY IS DELETED. 9. THE REVENUE IS IN APPEAL VIDE GROUND NO.2 IN RES PECT OF DELETION OF ADDITION OF RS.13,73,792/- AND THE ASSESSEE HAS RAISED ITS C ROSS OBJECTION VIDE GROUND NO.1 REGARDING ADDITION OF RS.1,02,000/- CONFIRMED BY TH E CIT(A) IN RESPECT OF SILVER JEWELLERY. 10. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PA RTIES AND RECORDS PERUSED. WE NOTICE THAT THE ASSESSEE HAS SHOWN GOLD JEWELLER Y IN WEALTH TAX RETURN AT 1272.03 GRAMS AND JEWELLERY FOUND AT THE TIME OF SE ARCH WAS 416.65 GRAMS WHICH IS NOT IN DISPUTE. THE GOLD JEWELLERY FOUND DURING THE COURSE OF SEARCH WAS LESS THAN THAT DECLARED BY THE ASSESSEE IN THE WEALTH TA X RETURN. UNDER THIS CIRCUMSTANCE ALONE THE ADDITION CANNOT BE MADE AS U NDISCLOSED INCOME IN THE HANDS OF THE ASSESSEE. IN THE LIGHT OF THE FACTS, WE DO NOT FIND ANY ERROR IN DELETING THE ADDITION OF RS.13,73,792/- MADE BY THE ASSESSIN G OFFICER ON ACCOUNT OF GOLD JEWELLERY. ITA NO.153 & CO-41/AGR/2011 A.Y. 2008-09 8 11. THE CIT(A) CONFIRMED THE ADDITION OF RS.1,02,00 0/- ON ACCOUNT OF SILVER JEWELLERY AS THERE WAS EXCESS JEWELLERY FOUND AT TH E TIME OF SEARCH THAN THE SILVER JEWELLERY DECLARED IN THE WEALTH TAX RETURN. THE A SSESSEE DID NOT FURNISH ANY SATISFACTORY EXPLANATION REGARDING EXCESS JEWELLERY OF 13.6 KGS. FOUND DURING THE COURSE OF SEARCH. IN ABSENCE OF EXPLANATION AND MA TERIAL, WE FIND THAT THE CIT(A) HAS RIGHTLY SUSTAINED THE ADDITION OF RS.1,02,000/- . IN THE LIGHT OF FACTS, ORDER OF CIT(A) IS CONFIRMED ON THE ISSUE. 12. THE BRIEF FACTS IN RESPECT OF THIRD GROUND OF R EVENUES APPEAL ARE THAT DURING THE COURSE OF SEARCH OPERATION 170.700 GRAMS OF GOL D JEWELLERY WAS FOUND ALONG WITH SLIP IN THE NAME OF SHRI HARI SINGH RANA TO WH OM ` 1,00,000/- HAS BEEN ADVANCED. SIMILARLY, ANOTHER 15 GRAMS OF GOLD JEWE LLERY WITH RECEIPT IN THE NAME OF SHRI MAHESH SONI WAS ALSO FOUND TO WHOM ` 10,000/- HAS BEEN GIVEN. THE ASSESSEE FAILED TO FURNISH EXPLANATION AND SUPPORTI NG DOCUMENTS. THE ASSESSING OFFICER MADE ADDITION OF ` 2,84,356/- AND ` 26,200/- ON THE BASIS OF JEWELLERY SLIPS FOUND DURING THE COURSE OF SEARCH. THE CIT(A) DELE TED THE ADDITION OF ` 2,84,356/-. HOWEVER, SHE SUSTAINED THE ADDITION OF RS.26,200/- AS UNDER :- (CIT(A) PARA 5.2) APPELLANTS SUBMISSIONS ALONGWITH ASSESSMENT ORDER AND RECORDS HAVE BEEN CONSIDERED CAREFULLY. ASSESSING OFFICER HAS MADE THE ADDITIONS ON THIS GROUND MAINLY FOR THE REASON THAT NO EVIDENCE HAS BEEN FILED BY THE APPELLANT. HOWEVER, NO EFFOR T WHATSOEVER HAS BEEN MADE BY THE ASSESSING OFFICER TO BRING ANY ADV ERSE MATERIAL ON ITA NO.153 & CO-41/AGR/2011 A.Y. 2008-09 9 RECORD BEFORE REJECTING THE SUBMISSIONS AND CONFIRM ATIONS FILED BY THE APPELLANT. ACCORDINGLY, DURING THE COURSE OF APPEA L PROCEEDINGS, THE APPELLANT, THROUGH HER A.R., WAS ASKED TO PRODUCE S HRI HARI SINGH RANA & SHRI MAHESH SONI AS CONFIRMATIONS GIVEN BY T HEM ARE FOUND TO BE ON A PIECE OF PLAIN PAPER WITHOUT MENTIONING ANY DATE, PAN ETC. IN RESPONSE, THE APPELLANT HAS PRODUCED SHRI HARI S INGH S/O. SHRI GAMBHIR SINGH R/O GRAM-SOTHI, GWALIOR WHOSE STATEME NT HAS BEEN RECORDED. HE HAS STATED HIMSELF TO BE AN AGRICULTU RIST HAVING ANNUAL INCOME OF ` 1 TO 1.25 LACS. HE HAS ADMITTED OF HAVING RECEIVED ` 1,00,000/- IN CASH FROM THE APPELLANT IN THE MONTH OF FEBRUARY 2008 ON DEPOSIT OF SECURITY OF GOLD JEWELLERY OF APPROX 170 GM. THE SAID AMOUNT WAS PAID BACK IN CASH WITHIN 10 TO 15 DAYS. HE HAS ALSO SUBMITTED EVIDENCE REGARDING HIS IDENTITY, INCOME E TC. FURTHER CASH BOOK OF THE APPELLANT HAS ALSO BEEN SEEN WHEREBY AM OUNT OF ` 1 LAC HAS BEEN WITHDRAWN ON 18.02.2008 WHEN THE OPENING B ALANCE AS PER CASH BOOK IS ` 2,07,174/-. THE SAME AMOUNT HAS BEEN DULY SHOWN IN THE CASH BOOK AS RECEIVED BACK ON 28.2.2008. IN RESPECT OF MAHESH SONI, THE APPELLANT HAS FAILED TO PRODUCE HIM NEITHER ANY DOCUMENTARY EVIDENCE FILED TO SUBST ANTIATE HER EXPLANATION. THOUGH THE CASH BOOK SHOWS THE FACT O F PAYMENT AND RECEIVED BACK OF AMOUNT OF ` 10,000/- FROM MR. SONI. HOWEVER, NO OTHER DOCUMENTARY EVIDENCE BEING FILED REGARDING JE WELLERY OF 15 GM AND TO PROVE THE ENTRIES MADE IN HER BOOKS OF ACCOU NTS DESPITE BEING GIVEN ADEQUATE OPPORTUNITIES EVEN DURING THE COURSE OF APPEAL PROCEEDINGS. ON THE BASIS OF FACTS ABOVE, ADDITION MADE IN RESPE CT OF SHRI HARI SINGH FOR ` 2,84,356/- IS DELETED WHEREAS AMOUNT OF ` 26,200/- MADE IN RESPECT OF SHRI MAHESH SONI IS CONFIRMED. 13. THE REVENUE IS IN APPEAL VIDE GROUND NO.3 IN RE SPECT OF DELETION OF ADDITION OF RS.2,84,356/- AND THE ASSESSEE HAS RAISED ITS CR OSS OBJECTION VIDE GROUND NO.2 REGARDING ADDITION OF RS.26,200/- CONFIRMED BY THE CIT(A). ITA NO.153 & CO-41/AGR/2011 A.Y. 2008-09 10 14. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PA RTIES AND RECORDS PERUSED. WE FIND THAT ONE OF THE SLIPS FOUND REGARDING JEWEL LERY WAS PERTAINING TO ONE SHRI HARI SINGH RANA WHO HAS CONFIRMED IN THE STATEMENT RECORDED BY THE DEPARTMENT THAT HE HAS TAKEN LOAN OF RS.1,00,000/- FROM THE AS SESSEE. SINCE THE ASSESSEES BUSINESS IS MONEY LENDING AND SHOWN INTEREST INCOME FROM INTEREST/COMMISSION, THE LOAN GIVEN HAS BEEN ACCOUNTED FOR IN THE BOOKS OF ACCOUNTS. IN THE LIGHT OF THIS ADMITTED FACT, WE FIND THAT THE CIT(A) HAS RIGHTLY DELETED THE ADDITION OF RS.2,84,356/-. 15. AS REGARDS ADDITION OF RS.26,200/-, WE NOTICE T HAT SIMILAR TYPE OF SLIP AS STATED ABOVE WAS FOUND IN THE NAME OF SHRI MAHESH S ONI IN RESPECT OF 15 GRAMS OF GOLD JEWELLERY WHEREIN RS.10,000/- HAS BEEN GIVEN A S ADVANCE TO SHRI MAHESH SONI. THE CIT(A) CONFIRMED THE ADDITION MADE BY TH E ASSESSING OFFICER ON THE GROUND THAT THE ASSESSEE FAILED TO PRODUCE SHRI MAH ESH SONI BEFORE THE ASSESSING OFFICER. THOUGH THE CIT(A) ADMITTED THAT LOAN OF ` 10,000/- HAS BEEN RECORDED IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE, WE FIND THAT AT THE TIME OF SEARCH ITSELF SLIP WAS FOUND. ON IDENTICAL SET OF FACTS THAT THE ASSE SSEE WAS DEALING IN MONEY LENDING BUSINESS AGAINST JEWELLERY AND IN ONE OF TH E CASE IN THE CASE OF SHRI HARI SINGH RANA, IT WAS FOUND THAT THESE WERE GENUINE SL IPS PERTAINING TO ASSESSEES BUSINESS AND NECESSARY LOAN ENTRIES HAD BEEN ACCOUN TED FOR IN THE BOOKS OF ITA NO.153 & CO-41/AGR/2011 A.Y. 2008-09 11 ACCOUNTS. WE, THEREFORE, ARE OF THE VIEW THAT THE CIT(A) OUGHT TO HAVE DELETED THIS ADDITION ON THE BASIS THAT SLIP OF 15 GRAMS OF GOLD JEWELLERY WAS FOUND WHEREIN NAME OF SHRI MAHESH SONI IS MENTIONED. CONSIDERING THE FACTS OF THE CASE, WE FIND THAT THE SLIP ITSELF IS SUFFICIENT FOR EXPLAINING A BOUT 15 GRAMS OF GOLD JEWELLERY. WE, THEREFORE, SET ASIDE THE ORDER OF CIT(A) ON THI S ISSUE AND THE ADDITION OF RS.26,200/- IS DELETED. 16. GROUND NO.4 OF REVENUES APPEAL IS IN RESPECT O F DELETION OF ADDITION OF RS.90,000/-. THE ASSESSING OFFICER MADE ADDITION O F RS.90,000/- ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN BANK ACCOUNT. THE CIT( A) DELETED THE ADDITION AS UNDER :- ON PERUSAL OF RECORDS, IT IS SEEN THAT CASH DEPOSI TS HAVE BEEN MADE ON 22.05.2006 AND 30.03.2007 (AND NOT 30.03.20 09 AS MENTIONED BY THE A.O.). THUS BOTH THE DEPOSITS PER TAIN TO A.Y. 2007- 08. ASSESSING OFFICER HAS ALSO MADE THE SAID ADDIT ION FOR A.Y. 2007- 08 IN ORDER DATED 24.12.2009 PASSED U/S 153A. VIDE APPEAL ORDER DATED 31.03.2010 IN APPEAL NO.185/IT/90-10/GWL FOR A.Y. 2007-08, THE SAID ADDITION (MADE AT ` 90,000/- BY THE ASSESSING OFFICER FOR THE SAME DEPOSITS) HAS BEEN DELETED FOR THE REASONS MEN TIONED THEREIN. ACCORDINGLY, ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING THE SAME ADDITION WHEN IT DOES NOT PERTAIN TO THE ASSESSMENT YEAR UNDER CONSIDERATION. ACCORDINGLY, ADDITION OF ` 90,000/-, IS, HEREBY, DELETED. 17. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PA RTIES AND PERUSED THE RECORDS. THE CIT(A) RECORDED THE FACT THAT THE CASH WAS DEPO SITED ON 22.05.2006 AND ITA NO.153 & CO-41/AGR/2011 A.Y. 2008-09 12 30.03.2007 AND NOT 30.03.2009 AS MENTIONED BY THE A SSESSING OFFICER. THE CIT(A) HAS ALSO RECORDED THE FACT THAT BOTH THE DEP OSITS PERTAINED TO ASSESSMENT YEAR 2007-08 AND THE ASSESSING OFFICER HAS MADE THE SAID ADDITION IN A.Y. 2007- 08 IN ORDER DATED 24.12.2009 PASSED UNDER SECTION 1 53A OF THE ACT. THE CIT(A) VIDE HIS ORDER DATED 31.03.2010 HAS DELETED THE ADD ITION FOR THE REASONS MENTIONED IN THE ORDER. ON THE BASIS OF ABOVE FACT, WE NOTIC E THAT THE TRANSACTION RELATES TO ASSESSMENT YEAR 2007-08 WHICH HAS ALREADY BEEN CONS IDERED IN THAT YEAR. THEREFORE, THE ADDITION IN ASSESSMENT YEAR 2008-09 IS NOT SUSTAINABLE. WE FIND THAT THE CIT(A) HAS RIGHTLY DELETED THE ADDITION. ORDER OF THE CIT(A) ON THIS ISSUE IS CONFIRMED. 18. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED AND CROSS OBJECTION OF THE ASSESSEE IS PARTLY ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 11.05.2012) SD/- SD/- (BHAVNESH SAINI) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 11 TH MAY, 2012 PBN/* ITA NO.153 & CO-41/AGR/2011 A.Y. 2008-09 13 COPY OF THE ORDER FORWARDED TO: APPELLANT RESPONDENT CIT CONCERNED CIT (APPEALS) CONCERNED D.R., ITAT AGRA BENCH, AGRA GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY