Sh. Vijay Kumar Agarwal, Agra V. D.C.I.T. 4(1), Agra

CO 60/AGR/2010

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 7923 (ITAT-AGRA)
• Duration Of Justice: 2 year(s) 1 month(s) 11 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 05-10-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 18-09-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 25-08-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: RAKESH KUMAR JAIN
• Keywords: Unexplained investment; Maximum Marginal Rate; Commercial expediency
• Section: 133A; 14A; 131

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.234/AGR/2010 ASSESSMENT YEAR: 2007-08 DY. COMMISSIONER OF INCOME TAX 4(1) VS. SHRI VIJAY KUMAR AGARWAL, AGRA. G-1, KAMALA NAGAR, AGRA. (PAN: AEOPA 6663 D). C.O. NO.60/AGR/2010 (IN ITA NO.234/AGR/2010) ASSESSMENT YEAR: 2007-08 SHRI VIJAY KUMAR AGARWAL, VS. DY. COMMISSIONER OF I NCOME TAX 4(1) G-1, KAMALA NAGAR, AGRA. AGRA. (PAN: AEOPA 6663 D). (APPELLANTS) (RESPONDENTS) REVENUE BY : SHRI WASEEM ARSHAD, SR. D.R. ASSESSEE BY : SHRI RAKESH KUMAR JAIN, C.A. ITA NO.241/AGR/2012) ASSESSMENT YEAR: 2008-09 SMT. CHARU AGARWAL, VS. DY. COMMISSIONER OF INCO ME TAX, M/S RAMWATI SHEETGRAH, CIRCLE 4(1), AGRA. C/O. BATRA JAIN & CO., CHARTERED ACCOUNTANTS, 26/209, SANJAY PLACE, AGRA (PAN: AEOPA 4142 B). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAKESH KUMAR JAIN, C.A. RESPONDENT BY : KM. ANURADHA, JR. D.R. ITA NO.234 & CO-60/AGR/2010 & 241/AGR/2012. A.YS.2007-08 & 2008-09. 2 DATE OF HEARING : 18.09.2012 DATE OF PRONOUNCEMENT OF ORDER : 05.10.2012 ORDER PER A.L. GEHLOT, ACCOUNTANT MEMBER: ITA NO.234/AGR/2010 BY THE REVENUE AND CROSS OBJECT ION NO.60/AGR/2010 BY THE ASSESSEE IN THE CASE OF SHRI VIJAY KUMAR AGA RWAL HAVE BEEN FILED AGAINST THE ORDER DATED 22.03.2010 PASSED BY THE LD. CIT(A) -II, AGRA FOR THE ASSESSMENT YEAR 2007-08 AND ITA NO.241/AGR/2012 BY THE ASSESS EE IN THE CASE OF SMT. CHARU AGARWAL HAS BEEN FILED AGAINST THE ORDER DATED 14.0 3.2012 PASSED BY THE LD. CIT(A)-II, AGRA FOR THE ASSESSMENT YEAR 2008-09. 2. THE REVISED GROUNDS OF APPEAL FILED BY THE REVEN UE IN THE CASE OF SHRI VIJAY KUMAR AGARWAL READ AS UNDER :- 1. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FAC TS IN DELETING THE AMOUNT OF RS.11,70,346/- OUT OF ADDITION OF RS.1,31 ,70,346/- MADE BY THE AO U/S 68/69 OF I.T. ACT WITHOUT PROPERLY APPRE CIATING THE FACTS OF THE CASE. 2. THAT THE LD CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.10,00,000/- MADE BY THE AO ON ACCOUN TS OF BARDANA TRADING HOLDING THAT THIS ADDITION IS COVERED BY TH E SURRENDER OF RS.155 LACS, THOUGH THE SURRENDER WAS ON ACCOUNT OF ENTRIES MADE IN THE NAME OF VIJAY BHAI IN THE CASH BOOK AND THE A SSESSEE HAD NOT TAKEN INTO ACCOUNT THIS INCOME WHILE MAKING THE SUR RENDER. 3. THAT THE LD CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.5,78,262/- MADE BY THE AO ON ACCOUNT OF INTEREST INCOME EARNED BY THE FARMERS ON THE LOAN GIVEN TO T HE FARMERS HOLDING ITA NO.234 & CO-60/AGR/2010 & 241/AGR/2012. A.YS.2007-08 & 2008-09. 3 THAT THIS AMOUNT IS COVERED BY THE SURRENDER OF RS. 155 LACS, THOUGH THE SURRENDER WAS ON THE BASIS OF ENTRIES IN THE NA ME OF VIJAY BHAI IN CASH BOOK AND FOR THE INTEREST INCOME. 4. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN DELETING THE ADDITION OF RS.2,60,684/- MADE BY DISALLOWING THE E XPENDITURE INCURRED FOR EARNING EXEMPTED INCOME, ON THE BASIS OF CONCOCTED STORY, THE FALSITY OF WHICH IS PROVED FROM THE REPL Y DATED 06.11.2009, WHEREIN SH. VIJAY KUMAR AGRAWAL ADMITTED THAT RS.5 LACS ONLY WERE GIVEN TO VIJAY KUMR SINGHAL (HUF) AND NOT RS.25 LAK H, AS CLAIMED. 5. THAT THE ORDER OF LD. CIT(A) DESERVE TO BE QUASH ED AND THAT THE ORDER OF AO BE RESTORED. 6. THE APPELLANT CRAVES LEAVE TO ADD OR ALTER ANY O R MORE GROUND OR GROUNDS OF APPEAL AS MAY BE DEEMED FIT AT THE TI ME OF HARING OF APPEAL. 3. THE GROUNDS OF CROSS OBJECTION RAISED BY THE ASS ESSEE IN THE CASE OF SHRI VIJAY KUMAR AGARWAL READ AS UNDER :- 1. THE LD. CIT APPEAL HAS ERRED IN LAW & FACTS IN CONFIRMING AN ADDITION OF RS.120 LACKS WITHOUT PROPERLY APPRECIAT ING THE FACTS OF THE CASE. 2. THAT THE CIT(A) HAS ERRED IN LAW & ON FACTS IN R ETAINING AN ADDITION OF RS.34,167/- OUT OF RS.2,94,851/- MADE B Y A.O. BY INVOKING PROVISIONS OF SEC 14A WITHOUT PROPERLY APPRECIATING THE FACTS OF THE CASE. 4. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN THE CASE OF SMT. CHARU AGARWAL READ AS UNDER :- 1. THAT HAVING REGARD TO THE FACTS & CIRCUMSTANCES OF THE CASE THE LD. CIT (APPEALS II) HAS ERRED IN LAW AND FACTS IN CONFIRMING AN ADDITION OF RS.22,23,928/- ON ACCOUNT OF ALLEGED UN DISCLOSED ITA NO.234 & CO-60/AGR/2010 & 241/AGR/2012. A.YS.2007-08 & 2008-09. 4 INVESTMENT IN BARDANA WITHOUT APPRECIATING THE FACT S AND MERITS OF THE CASE. 2. THAT HAVING REGARD TO THE FACTS & CIRCUMSTANCES OF THE CASE, THE LD CIT(APPEALS II) HAS ERRED IN LAW AND FACTS IN CO NFORMING AN ADDITION OF RS.2,34,643/- ON ACCOUNT OF ALLEGED UNA CCOUNTED INTEREST RECEIVED ON FARMERS ADVANCES THAT TOO IN THE HANDS OF THE APPELLANT WHEN THE SAME STOOD ALREADY TAXED IN THE HANDS OF O NE OF CONSTITUENT OF GROUP CONCERNS NAMELY SHRI VIJAY KUMAR AGARWAL. 3. THAT THE APPELLANT CRAVES, LEAVE TO ADD, MODIFY, AMEND OR DELETE ANY OF THE GROUND OF APPEAL AT THE TIME OF H EARING AND ALL THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 5. FIRST WE TAKE UP APPEAL OF THE ASSESSEE, SHRI VI JAY KUMAR AGARWAL. THE BRIEF FACTS OF THE CASE ARE THAT A SURVEY OPERATION UNDER SECTION 133A OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) WAS CARRIED O UT ON T.R. SONS BUSINESS PVT. LTD., AGARWAL ICE & COLD STORAGE AND RAMVATI SHEET GRAH ON 24.10.2007. THE ASSESSEE WAS A DIRECTOR IN THE FIRST CONCERN, A PAR TNER IN HUF CAPACITY IN SECOND CONCERN AND HIS WIFE WAS PROPRIETOR OF THIRD CONCER N. DURING THE COURSE OF SURVEY, NO REGULAR BOOKS OF ACCOUNT WERE FOUND. A CPU WAS FOUND AND IMPOUNDED. AT THE TIME OF SURVEY, RS.1 CRORE WAS SURRENDERED AS A DDITIONAL INCOME. IN THE POST SURVEY PROCEEDINGS, THE CPU WAS OPERATED AND COMPUT ER PRINTOUT REVEALED THAT BOOKS OF ACCOUNTS OF ALL THREE CONCERNS WERE BEING MAINTAINED TOGETHER AND COMBINED CASH BOOK AND LGER ACCOUNTS WERE GENERATE D FROM 01.11.2006 TO 23.10.2007. IN THE CASH BOOK ANNEXURE P-1, HUGE AM OUNT OF CASH WAS INTRODUCED ON DIFFERENT DATES IN THE NAME OF VIJAY BHAI AND OTHERS. THE ASSESSEE WAS ITA NO.234 & CO-60/AGR/2010 & 241/AGR/2012. A.YS.2007-08 & 2008-09. 5 REQUIRED TO EXPLAIN THESE ENTRIES AND PRODUCE REGUL AR BOOKS OF ACCOUNT. THE ASSESS FILED A COPY OF REPORT IN THE NEWSPAPER PUBLISHED O N 16.11.2007 THAT ALL THE BOOKS OF ACCOUNTS OF THE THREE CONCERNS OF THE GROUP WERE LOST AND HENCE NO BOOKS OF ACCOUNTS WERE PRODUCED TO EXPLAIN AND RECONCILE THE ACCOUNTS FOUND ON COMPUTER. THE ASSESSEE FILED RETURN OF INCOME SHOWING TOTAL I NCOME OF RS.12,83,940/- WHEREIN RS.12,50,000/- WAS DISCLOSED AS SURRENDERED INCOME FROM OTHER SOURCES. ON THE BASIS OF EXAMINATION OF RECORDS AND OTHER DO CUMENTS, THE A.O. FOUND THAT SHRI VIJAY KUMAR AGARWAL DOES NOT HAVE ANY FUNDS AT HIS DISPOSAL TO MAKE INVESTMENT OF RS.1,54,20,346/- IN THE CASH BOOK OF ASSESSEE GROUP W.E.F. 01.11.2006 TO 31..03.2007. THE A.O. ISSUED SUMMON UNDER SECTION 131 AND STATEMENT ON OATH WAS RECORDED ON 18.12.2009. THE RELEVANT QUESTIONS AND REPLIES QUOTED BY THE A.O. IN HER ORDER ARE AS UNDER:- (PAG ES 4 & 5) A SUMMON WAS ISSUED TO THE ASSESSEE ON 17.12.2009 UNDER SECTION 131 AND STATEMENT ON OATH RECORDED ON 18.12.2009 D URING WHICH THE VARIOUS LOOPHOLES IN THE THEORY OF IMPREST ACCOUNT WAS CONFRONTED TO HIM. FROM THE ASSESSEES STATEMENT RELEVANT QUESTION AND REPLY ARE BEING QUOTED :- Q-8 ON THE BASIS OF BOOKS OF ACCOUNTS IMPOUNDED DU RING THE SURVEY, THE ENTRIES OF ALL THREE CONCERNS, NAMELY AGARWAL ICE & COLD STORAGE, RAMWATI SHEET GRAH AND T.R. SONS BUSINESS PVT. LTD. , ARE COMBINED AND JUMBLED UP. NO DAY-TO-DAY FLOW OF FUNDS OF EACH BUSINESS CONCERN CAN BE BIFURCATED. BESIDES THESE, YOU HAVE STATED R EGULAR BOOKS OF ACCOUNTS ARE LOST, HENCE, THE RETURNS ARE FURNISHED ON FABRICATED BASIS WITHOUT ANY ACCOUNTS. EXPLAIN WHY THEY MAY NOT BE REJECTED AND ENTIRE CASH INTRODUCED BE TAXED IN THE HANDS OF SH. VIJAY AGARWAL I.E. YOURSELFS CASE. ITA NO.234 & CO-60/AGR/2010 & 241/AGR/2012. A.YS.2007-08 & 2008-09. 6 ANS-8 I HAVE TO THE BEST OF MY EFFORTS FURNISHED EXPLANATION TO EACH AND EVERY ENTRY WITH SUPPORT AT MY DISPOSAL. IT MAY KI NDLY BE NOTED THAT I HAVE ALREADY SURRENDERED RS.1 CRORE IN TWO YEARS AS COMMITTED DURING SURVEY. OUT OF THIS, RS.35 LACS WERE SURREN DERED IN THE YEAR IN QUESTION. Q-9 THE ABOVE REPLY IS NOT SATISFACTORY AS IN THE IMPOUNDED BOOKS/PRINTOUT, THERE ARE CLEAR CASH INTRODUCTION I N THE NAME OF VIJAY BHAI OF RS.1,54,20,346/- IN THIS YEAR. FURTHERMORE , THE EXPLANATION WITH RESPECT TO IMPREST ACCOUNT, BARDANA ACCOUNT AND INTEREST CANNOT BE ACCEPTED BECAUSE THEY ARE CONTRARY TO FAC TS/MATERIAL IN THE BOOKS FOUND DURING SURVEY. IT IS ALSO NOTED THAT N UMBER OF TRANSACTIONS WITH VYAPARIES ARE TAKING PLACE FIGURE IN THESE ACCOUNTS. EXPLAIN. ANS-9 FIRSTLY, REGARDING VYAPARIES, I WISH TO CLAR IFY VYAPARIES ARE ACTUALLY THE KACHA ARATIYAS WHO ENTER INTO TRANSACT IONS WITH THE FARMERS. THE MATERIAL IMPOUNDED BY THE DEPARTMENT WHICH INCLUDES SAUDA-BAHI CLEARLY CLARIFIES THAT THE FARMER AND TH E AGENT ENTER INTO TRANSACTIONS. WE HAVE TO THE BEST OF OUR EFFORTS P ROVIDED ADEQUATE EXPLANATIONS AND SUPPORTING IN SUPPORT OF OUR AFORE SAID CONTENTION. HOWEVER, JUST TO PURCHASE PEACE I AM PREPARED TO PA Y INCOME TAX ON RS.1.20 CRORE PROVIDED I AM ALLOWED TO CREDIT THIS SUM IN MY BOOKS AND ALSO NO PENALTY IS IMPOSED ON ME. THIS ADDITION WILL COVER ALL THE ABOVE ISSUES. THIS SURRENDER OF RS.1.20 CRORE ADDE D TO RS.35 LACS WHICH I HAVE ALREADY SURRENDERED IN THE RETURN SHAL L MAKE THE TOTAL RS.1.55 CR. I SHALL FILE A SURRENDER LETTER IN THI S MATTER ON THE NEXT HEARING. IT IS REQUESTED THAT SINCE I HAVE AGREED TO SURRENDER RS.1.20 CR. IN ADDITION TO MY RETURNED INCOME IN MY HAND, N O SEPARATE ADDITION ON THE BASIS OF IMPOUNDED DOCUMENTS BE MAD E IN HANDS OF AGARWAL ICE & COLD STORAGE, RAMWATI SHEETGRAH AND T .R. SONS BUSINESS PVT. LTD. Q-10 IT IS SEEN THAT YOU HAVE SURRENDERED RS.12.50 LACS AT THE TIME OF FILING OF RETURN OF INCOME. SIMILARLY, RS.15 LACS IN RAMWA TI COLD STORAGE AND RS.7.50 LACS IN AGARWAL ICE & COLD STORAGE. WHA T IS THE BASIS OF THIS SURRENDER ? ANS-10 AT THE TIME OF FILING OF RETURNS OF INCOME, SINCE THE COMPLETE PHOTOCOPIES OF BOOKS OF ACCOUNTS IMPOUNDED WERE NOT AVAILABLE, I HAD FILED THE RETURNS ON ESTIMATED BASIS DIVIDING THE I NCOME SURRENDERED ITA NO.234 & CO-60/AGR/2010 & 241/AGR/2012. A.YS.2007-08 & 2008-09. 7 INTO TWO YEARS. HOWEVER, DURING ASSESSMENT PROCEEDI NGS I WOULD LIKE TO SURRENDER ON BASIS OF ENTRIES IN THE NAME OF VI JAY BHAI IN CASH BOOK P-1, TO AVOID LITIGATION WITH THE DEPARTMENT I N FOLLOWING CONCERNS OF MY GROUP- M/ S RAMWATI COLD STORAGE RS.15 LACS M/S AGARWAL ICE & COLD STORAGE RS.7.5 LACS SH. VIJAY KUMAR AGARWAL RS.12.50 LACS + RS.L.20 CRORE. I WOULD LIKE TO MAKE IT CLEAR THAT THE ABOVE SURREN DER OF RS.L.20 CRORES IS SEPARATE FROM RS.35 LACS WHICH I HAVE ALREADY S URRENDERED IN THE RETURN OF INCOME OF ABOVE ASSESSEES. 6. ON THE BASIS OF EXAMINATION AND ABOVE STATEMENT OF SHRI VIJAY BHAI THE A.O. ACCEPTED THE CUMULATIVE PEAK OF CASH INTRODUCT ION DURING THE YEAR AT RS.1,54,20,346/-. AFTER ALLOWING THE ADJUSTMENT OF SURRENDER OF DIFFERENT GROUPS THE A.O. MADE ADDITION OF RS.1,31,70,346/- AS UNDER :- (PARAGRAPH NO.3.3) 3.3 ON THE BASIS OF THE ABOVE STATEMENT AS WELL IN THE REPLY FURNISHED ON 21.12.2009, THE ASSESSEE HAS ONCE AGAIN REITERATED THE SURRENDER OF RS.120 LACS ON ACCOUNT OF ENTRIES IN IMPOUNDED DOCUMENTS. ON THE BASIS OF THE CUMULATIVE PEAK OF CASH INTRODUCTION DURING THE YEA R BEING RS.1,54,20,346/-, THE SURRENDER ON THIS ACCOUNT IN ASSESSEES HANDS A FTER EXCLUDING RS.15 LACS SURRENDERED IN THE HANDS OF RAMWATI SHEET GRAH AND RS.7.5 LACS IN AGARWAL ICE & COLD STORAGE TOTALLING TO RS.22.5 LACS BE RED UCED FROM RS.1,54,20,346/- I.E. RS.1,31,70,346/- IS BEING ADDED AS UNDISCLOSED/UNEXPLAINED MONEY OR INVESTMENT BY INVO KING DEEMING PROVISIONS OF SECTION 68/69 OF THE I.T. ACT, 1961. PENALTY PROCEEDINGS U/S 271(1)(C) ARE BEING SEPARATELY INITIATED FOR NON-DI SCLOSURE OF TRUE PARTICULARS OF HIS INCOME. [ADDITION OF RS.1,31,70,346/-] ITA NO.234 & CO-60/AGR/2010 & 241/AGR/2012. A.YS.2007-08 & 2008-09. 8 7. THE CIT(A) RESTRICTED THE ADDITION TO THE EXTENT OF RS.120 LACS WHICH WAS SURRENDERED BY THE ASSESSEE BEFORE THE A.O.P. AT TH E TIME OF HEARING. THE RELEVANT FINDING OF CIT(A) IS AS UNDER :- (PARAGRAPH NOS.3, 4 & 5) 3. I HAVE CONSIDERED THE AFORESAID FACTS AND SUBM ISSIONS OF THE APPELLANT. I HAVE ALSO GONE THROUGH THE ASSESSMENT ORDER. THERE IS NO CONTRADICTION OF THE FACT THAT AN AMOUNT OF RS.1 ,54,20,346/- HAS BEEN INTRODUCED IN THE ACCOUNT CAPTIONED AS VIJAY BHAI FOUND IN THE BOOKS OF ACCOUNTS RECOVERED AT THE TIME OF SURV EY. FURTHER, THE FACT THAT THE APPELLANT HAS SURRENDERED RS.35 LACS IN TOTALITY IS ALSO NOT A QUESTION OF DISPUTE. IN THE ASSESSMENT ORDER ITSELF, IT HAD BEEN CATEGORICALLY STATED THAT THE APPELLANT HAD MADE A SURRENDER OF RS.35 LACS IN THE FOLLOWING FORMAT: - RAMWATI COLD STORAGE RS.15 LACS AGARWAL ICE & COLD STORAGE RS.7.5 LACS AJAY KUMAR AGARWAL RS.12.5 LACS TOTAL RS.35 LACS 4. THE A.O. WHILE MAKING AN ADDITION OF RS.L,31,70 ,346/- HAS GIVEN CREDIT OF ONLY RS.22.5 LACS AND NOT RS.35 LAC S. HENCE, I FIND FORCE IN THE CONTENTION OF THE APPELLANT THAT THE C REDIT OF ENTIRE RS.35 LACS SHOULD BE GIVEN FROM THE SUM OF RS.L,54,20,346 /- INTRODUCED IN THE ACCOUNT CAPTIONED AS VIJAY BHAI. ON THIS ACC OUNT ALONE, THE APPELLANT IS ENTITLED TO A RELIEF OF RS.12.5 LACS. 5. REGARDING THE MERITS OF THE ADDITION, THE SUBMI SSION OF THE ASSESSEE IS THAT THE IMPUGNED MONEY REFLECTED IN TH E ACCOUNT OF VIJAY BHAI WAS RECEIVED FROM FARMERS IN THE COURSE OF BU SINESS. THE APPELLANT IN SUPPORT OF HIS CONTENTION SUBMITTED TH EIR COPY OF ACCOUNT DULY CONFIRMED ALONG WITH THEIR AFFIDAVITS IN SOME CASES. THE APPELLANT HAD ALSO OFFERED TO PRODUCE THE RESPECTIV E FARMER FROM WHOM THE AMOUNT WAS RECEIVED, IF NEEDED. THE A.O. NEITHER CONTROVERTED THE AFFIDAVITS NOR THE COPY OF ACCOUNT S FURNISHED BY THE APPELLANT. THOUGH THERE IS MERIT IN THE CASE OF THE APPELLANT, YET, IT IS AN UNDOUBTED FACT THAT THE APPELLANT HAD SURRENDERE D RS.120 LACS IN THE COURSE OF ASSESSMENT PROCEEDINGS AND THIS SURRE NDER HAS AT NO POINT OF TIME BEEN RETRACTED BY THE APPELLANT. HEN CE, THE ADDITION OF ITA NO.234 & CO-60/AGR/2010 & 241/AGR/2012. A.YS.2007-08 & 2008-09. 9 RS.120 LACS IS CONFIRMED AND THE APPELLANT ON ACCOU NT OF GROUND NO.2 SHALL GET THE RESULTANT RELIEF OF RS.11,70,346 /-. 8. THE REVENUE IS IN APPEAL AGAINST THE DELETION OF AMOUNT OF RS.11,70,346/- OUT OF ADDITION OF RS.1,31,70,346/- MADE BY THE A.O . VIDE GROUND NO.1. THE ASSESSEE VIDE GROUND NO.1 OF CROSS OBJECTION CHALLE NGED THE ADDITION OF RS.120 LACS SUSTAINED BY THE CIT(A). 9. WE HAVE HEARD THE LD. REPRESENTATIVE OF THE PART IES AND RECORDS PERUSED. THE UNDISPUTED FACTS OF THE CASE ARE THAT CUMULATIV E PEAK OF CASH INTRODUCED DURING THE YEAR WAS RS.1,54,20,346/- ON THE BASIS OF THIS PEAK AMOUNT OF OTHER MATERIAL THE ASSESSEE SURRENDERED RS.1,20,00,000/- IN ADDITI ON TO RS.12,50,000/-. SURRENDER AT THE TIME OF SURVEY. THIS AMOUNT OF RS.12,50,000 /- HAS BEEN INCORPORATED BY THE ASSESSEE WHILE FILING RETURN OF INCOME AND OFFERED TO TAX. THE A.O. MADE ADDITION OF RS.1,31,70,346/-, BEING THE CUMULATIVE PEAK OF C ASH INTRODUCED DURING THE YEAR. AFTER ALLOWING SET OF/ADJUSTMENT OF AMOUNT SURRENDE RED IN DIFFERENT CONCERNS THE GROUP. THE CIT(A) FOUND THAT THE ASSESSEE HIMSELF HAS DISCLOSED RS.12,50,000/- IN THE RETURN OF INCOME. THEREFORE, THIS AMOUNT WAS A LSO REQUIRED SET OFF AND ADJUSTMENT IN THE ADDITION OF RS.1,31,70,346/- IS R EQUIRED TO BE REDUCED. EVEN THIS AMOUNT OF RS.12,50,000/- IS REDUCED FROM RS.1,31,70 ,346/- AND BALANCE COMES TO RS.1,19,20,346/-. HOWEVER, THE CIT(A) RESTRICTED T HE ADDITION TO THE EXTENT OF RS.1,20,00,000/- ALLOWING RELIEF OF RS.11,70,346/- ON THE GROUND THAT THE ASSESSEE ITA NO.234 & CO-60/AGR/2010 & 241/AGR/2012. A.YS.2007-08 & 2008-09. 10 HIMSELF HAS SURRENDERED THIS AMOUNT DURING THE COUR SE OF ASSESSMENT PROCEEDINGS AND SOME HAS NOT BEEN DETECTED. IN THE LIGHT OF AB OVE DISCUSSION AND AS MENTIONED ABOVE, THE ASSESSEE WAS ENTITLED TO RELIEF OF SET O F RS.12,50,000/- AMOUNT WHICH HAS BEEN ALREADY INCURRED IN THE RETURN OF INCOME. THE REFORE, THE RELIEF TO THAT EXTENT WAS REQUIRED TO BE GRANTED BUT THE CIT(A) ALLOWED O NLY RS.11,70,346/- ON THE GROUND THAT THE ASSESSEE HIMSELF HAS SURRENDERED TH E AMOUNT AT THE TIME OF ASSESSMENT PROCEEDINGS IN THE LIGHT OF FACT WE DO N OT THINK THAT THE REVENUE SHOULD HAVE ANY GRIEVANCE AGAINST THE ORDER OF CIT(A). WE , THEREFORE, CONFIRM THE ORDER OF THE CIT(A). 10. AT THE TIME OF HEARING, THE LD. AUTHORISED REPR ESENTATIVE HAS NOT PRESSED GROUND NO.1 PERTAINING TO ADDITION OF RS.120 LACS S USTAINED BY THE CIT(A). GROUND NO.1 OF C.O. ACCORDINGLY DISMISSED. 11. THUS, GROUND NO.1 OF REVENUES APPEAL AND GROUN D NO.1 OF ASSESSEES CROSS OBJECTION BOTH ARE DISMISSED. 12. IN ADDITION TO THE ABOVE, THE A.O. MADE ADDITIO N OF RS.10,00,000/- ON ACCOUNT OF BARDANA, RS.5,78,262/- ON ACCOUNT OF INT EREST CALCULATED BY THE A.O. APPLYING 15% ON ADVANCE OF RS.1,54,20,346/- FROM NO VEMBER TO MARCH. THE A.O. ALSO MADE ADDITION OF RS.2,94,851/- INVOKING SECTIO N 14A OF THE ACT. THE A.O. ITA NO.234 & CO-60/AGR/2010 & 241/AGR/2012. A.YS.2007-08 & 2008-09. 11 NOTICED THAT THE ASSESSEE MADE INVESTMENT IN SHARE APPLICATION MONEY OF RS.15,00,000/- IN M/S. T.R. SONS & BUSINESS PVT. LT D. AFTER TAKING LOAN OF RS.25,00,000/-. THE INTEREST OF RS.2,94,851/- HAS BEEN PAID BY THE ASSESSEE. THEREFORE, THE SAME IS DISALLOWABLE AS THERE WAS NO COMMERCIAL EXPEDIENCY FOR MAKING THE INVESTMENT IN T.R. SONS & BUSINESS PVT. LTD. THERE WAS ALSO DIVIDEND INCOME, WHICH IS EXEMPT. THEREFORE, THE SAID AMOUN T OF INTEREST IS DISALLOWABLE KEEPING IN VIEW THE PROVISIONS OF SECTION 14A OF TH E ACT. 13. THE CIT(A) DELETED THE ADDITION OF RS.10,00,000 /- ON THE GROUND THAT THE ASSESSEE HAS ALREADY MADE SURRENDER OF RS.1.325 CRO RES. THEREFORE, NO SEPARATE ADDITION IS WARRANTED ON THE GROUND THAT THE ASSESS EE RECEIVED INTEREST OF RS.2,60,684/- FROM VIJAY KUMAR SINGHAL, HUF. THE R ELEVANT FINDING OF CIT(A) ARE AS UNDER :- (PARAGRAPH NO.12) I HAVE GONE THROUGH THE FACTS OF THE CASE AND THE ENTIRE CHAIN OF FUND FLOW CLEARLY SHOWS THAT THE FUNDS IN THE YEAR IN QU ESTION REMAINED WITH VIJAY KUMAR SINGHAL HUF FROM WHOM THE INTEREST OF RS.2,60,684/- WAS RECEIVED. HENCE, THE APPELLANT W ILL GET THE RELIEF OF RS.2,60,684/- ONLY AND BALANCE RS.34,167/- SHALL BE ADDED TO INCOME. 14. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PA RTIES AND RECORDS PERUSED. AFTER CONSIDERING THE TOTALITY OF THE FACTS, WE FIN D THAT THE CIT(A) HAS RIGHTLY DELETED THE ADDITION OF RS.10,00,000/- ON ACCOUNT O F BARDANA AND RS.5,78,262/- ON ACCOUNT OF INTEREST AS BOTH ITEMS RELATED TO BUSINE SS ACTIVITIES, IN OTHER WORDS ITA NO.234 & CO-60/AGR/2010 & 241/AGR/2012. A.YS.2007-08 & 2008-09. 12 TRADING ACTIVITIES, AND ON THAT ACCOUNT ADDITION TO THE EXTENT OF RS.1.20 CRORES HAS ALREADY BEEN CONFIRMED. THEREFORE, WE ARE OF THE V IEW THAT THESE SEPARATE ADDITIONS ARE NOT WARRANTED. WE FIND THAT THE CIT( A) HAS RIGHTLY DELETED THE ADDITIONS. IN THE LIGHT OF THE FACT, WE CONFIRM TH E ORDER OF CIT(A) IN DELETING BOTH THE ADDITIONS OF RS.10,00,000/- AND RS.5,78,262/- M ADE BY THE A.O. 15. AS REGARDS THE ADDITION UNDER SECTION 14A OF TH E ACT OF RS.2,94,851/- WE FIND THAT THE CIT(A) HAS CORRECTLY APPRECIATED THE FACTS AND FOUND THAT ENTIRE FUNDS OF GROUP HAS BEEN CHANNELISED THROUGH VIJAY KUMAR A GARWAL. THERE IS AN INTEREST RECEIPT OF RS.2,60,684/-./ THEREFORE, INTEREST PERT AINING TO DIVERSION OF BORROWED FUND IN SHARE APPLICATION IS REQUIRED TO BE RESTRIC TED ONLY IN RESPECT OF NET AMOUNT OF INTEREST. WE, THEREFORE, FIND THAT THE CIT(A) H AS RIGHTLY ALLOWED RELIEF OF RS.2,60,684/- AND HAS CORRECTLY CONFIRMED THE ADDIT ION TO THE EXTENT OF RS.34,167/-. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A) . THEREFORE, ORDER OF CIT(A) ON THE ISSUE IS CONFIRMED. THUS, IN THE LIGHT OF A BOVE DISCUSSION, GROUNDS OF APPEAL OF REVENUE AND GROUNDS OF CROSS OBJECTION OF ASSESS EE, ALL ARE DISMISSED 16. IN THE RESULT, APPEAL FILED BY THE REVENUE AND CROSS OBJECTION FILED BY THE ASSESSEE BOTH ARE DISMISSED. 17. NOW WE TAKE UP ITA NO.241/AGR/2012 OF THE ASSES SEE SMT. CHARU AGARWAL. ITA NO.234 & CO-60/AGR/2010 & 241/AGR/2012. A.YS.2007-08 & 2008-09. 13 18. THE BRIEF FACTS OF THE CASE ARE THAT DURING THE ASSESSMENT PROCEEDINGS THE A.O. NOTICED THAT INVESTMENT OF RS.80,87,014/- HAS BEEN MADE IN BARDANA WHEREAS NO INVESTMENT HAS BEEN SHOWN BY THE ASSESSEE IN HER RETURN OF INCOME. AFTER CONSIDERING THE ASSESSEES SUBMISSION, THE A.O. MAD E ADDITION OF RS.22,23,928/- AS UNDER :- (PAGE 6 PARAGRAPH NO.2.2) 2.2 THEREFORE, THE AMOUNT OF RS.80.87,014/- HAS BE EN INVESTED AND THE SAME NEEDS TO BE ADDED IN THE HANDS OF THE ALL THERE COLD STORAGES. NOW COMING TO THE QUANTIFICATION OF THE INVESTMENT IN BARDANA IN THE HANDS OF THE ASSESSEE, AS EXPLAINED IN THE FOREGOIN G PARAS THAT THE CONSOLIDATED BOOKS WERE FOUND, THEREFORE, THE TOTAL INVESTMENT IN BARDANA NEEDS TO BE APPORTIONED IN THE THREE COLD S TORAGES I.E. M/S T.R. SONS BUSINESS PVT. LTD., M/S RAMWATI SHEET GRI H PROP. SMT. CHARU AGARWAL (ASSESSEE) AND M/S AGARWAL ICE & COLD STORAGE ON THE BASIS OF RENT RECEIVED BY THEM. THE RENT RECEI PT IS BEING TAKEN AS YARD STICK FOR APPORTIONMENT OF INVESTMENT IN BARDA NA BECAUSE THE INVESTMENT IN BARDANA IS DIRECTLY PROPORTIONAL TO T HE NUMBER OF BAGS KEPT IN THE COLD STORAGE DURING THE YEAR. HENCE, U NDISCLOSED INVESTMENT COMES OUT TO BE AS UNDER :- NAME OF COLD STORAGE RENT RECEIVED % AGE OF UNDISC LOSED INV. TOTAL RENT RCVD. AGARWAL ICE & COLD RS.81,62,736 31.7% RS.25,63,583 T.R. & SONS BUSINESS P. LTD. RS.1,04,76,212 40.7% R S.31,91,414 RAMWATI SHEET GRIH RS.70,75,400 27.5% RS.22,23,928 THEREFORE, RS.22,23,928/- IS BEING ADDED TO THE INC OME OF THE ASSESSEE ON ACCOUNT OF UNDISCLOSED INVESTMENT IN BARDANA. (ADDITION OF RS.22,23,928/-) 19. SIMILARLY, DURING THE EXAMINATION OF IMPOUNDED MATERIAL & COMPUTER PRINTOUT IT WAS NOTICED THAT THE ASSESSEE EARNED IN TEREST INCOME ALSO BUT THE SAME WAS NOT FOUND CREDITED IN PROFIT & LOS ACCOUNT. TH E INTEREST CHARGED FROM ITA NO.234 & CO-60/AGR/2010 & 241/AGR/2012. A.YS.2007-08 & 2008-09. 14 FARMERS DURING THE PERIOD 25.04.2007 TO 23.10.2007 WAS RS.55,69,760/-. THE A.O. AFTER CONSIDERING THE ASSESSEES SUBMISSION MADE AD DITION OF RS.2,34,643/- AS UNDER :- (PAGE NO.7, PARAGRAPH NO.3.2) AS REGARDS THE QUANTIFICATION OF THE AMOUNT, THE O UT OF BOOKS INTEREST RECEIVED IS BEING RECALCULATED ON THE BASIS OF ACTU AL RECEIPT OF INTEREST AS MENTIONED IN THE KISAN BAHI I.E. ANNEXURE E-9 AN D IT COMES OUT TO RS.8,53,248/-. THEREFORE, UNDISCLOSED INTEREST INC OME NEEDS TO BE TAXED IN THE HANDS OF THE COLD STORAGES AND THE SAM E IS BEING APPORTIONED ON THE BASIS OF RENT RECEIVED WHICH COM ES OUT TO RS.2,34,643/- I.E. 27.5% OF THE TOTAL INTEREST EARN ED IN THE ASSESSEES CASE.) (ADDITION OF RS.2,34,643/-) 20. THE CIT(A) CONFIRMED BOTH THE ADDITIONS AS UNDE R :- (PARAGRAPH NO. 3.2) 3.2 I HAVE ANALYSED THE MATTER AND FIND THAT IT IS A MATTER OF FACT THAT CONSOLIDATED BOOKS OF ACCOUNT PERTAINING TO 3 COLD STORAGES WERE FOUND. I ALSO AGREE WITH THE AO THAT SHRI VIJAY KU MAR AGARWAL HAS MANAGED THREE CONCERNS AND WHATEVER INCOME, INVESTM ENT, EXPENDITURE AND RECEIPTS ARE RECORDED IN THE IMPOUN DED MATERIAL DO NOT BELONG TO HIM BUT BELONG TO COLD STORAGES. IT IS ALSO A FACT THAT UNEXPLAINED INVESTMENT HAS BEEN FOUND IN THE IMPOUN DED MATERIAL AND SHRI VIJAY KUMAR AGARWAL IS NOT RUNNING ANY COL D STORAGE IN HIS PERSONAL CAPACITY. IN SUCH A SCENARIO THE INVESTME NT MADE HAS TO BE CONSIDERED IN THE HANDS OF COLD STORAGES. I AM OF THE OPINION THAT AS THE INVESTMENT MADE CANNOT BE BIFURCATED COLD STORA GE WISE ON THE BASIS OF IMPOUNDED MATERIAL, THEREFORE, THE AO HAS RIGHTLY APPORTIONED THE SAME IN THE PROPORTION OF RENT RECE IVED BY EACH COLD STORAGE. THUS, THE ADDITION MADE BY THE AO IS CONF IRMED. 21. THE CIT(A) ALSO CONFIRMED THE ADDITION OF RS.2, 23,643/- ON ACCOUNT OF INTEREST AS UNDER :- (PARAGRAPH NO.4.2) ITA NO.234 & CO-60/AGR/2010 & 241/AGR/2012. A.YS.2007-08 & 2008-09. 15 4.2 I HAVE CONSIDERED THE RIVAL CONTENTIONS AND FO R THE SAME REASONS AS GIVEN WHILE DECIDING GROUND NO.1 THE ADD ITION MADE BY THE AO IS CONFIRMED. 22. THE CONTENTION OF THE ASSESSEE THAT THESE ADDIT IONS HAVE ALREADY BEEN TAXED IN THE HANDS OF ONE OF THE CONSTITUENT OF GROUP CON CERNS NAMELY VIJAY KUMAR AGARWAL. THE EXPLANATION BEFORE THE CIT(A) WHICH H AVE ALSO BEEN REPRODUCED BY THE CIT(A) IN HIS ORDER WHICH ARE REPRODUCED AS BEL OW :- (PARAGRAPH NOS.3.1 & 4.1) 3.1 FOR DELETION OF THIS ADDITION, THE LD. AR OF THE APPELLANT VIDE HIS WRITTEN SUBMISSIONS HAS SUBMITTED AS UNDER: THE LD. AO HAS MADE AN ADDITION OF RS.22,23,928/- ON ACCOUNT OF ALLEGED UNDISCLOSED INVESTMENT IN BARDANA. THE I D. AO OBSERVED THAT THE GROUP CONCERNS MADE PAYMENT FOR B ARDANA TO THE TUNE OF RS.80,87,014/- AS UNDER: TOTAL OF ANNEXURE E-1 RS.59,60,900 (REFER PB153 T O 155) PURCHASE FROM BARDANA ACCOUNT RS.21,26,114 (REFER PB 156) TOTAL RS.80,87,014/- THE APPELLANT SHARE IN THE TOTAL RECEIPTS OF THE AL L THE COLD STORAGES IN THE GROUP WAS 27.50%. THEREFORE, 27.5% OF RS.80,87,014/- I.E. RS.22,23,928/- WERE ADDED TO TH E DISCLOSED INCOME. IN THIS REGARDS THE ASSESSEE BEGS TO SUBMIT THAT TH E VERY BASIC ALLEGATION OF THE ID. AO THAT THE INVESTMENT IN BAR DANA TO THE TUNE OF RS.80,87,014/- IS FROM UNDISCLOSED SOURCES IS ERRONEOUS IN SO FAR AS THE ENTIRE INVESTMENT HAS BEEN MADE FR OM THE ACCOUNT CAPTIONED AS VIJAY BHAI AGARWAL SHOWN AT PB 157- 158. YOUR HONOUR KIND ATTENTION IS INVITED TO THIS ACCOUNT. THE ACCOUNT CLEARLY SHOWS A PEAK RS.1,63,95,005/- ON 18 .06.2007. THIS AMOUNT STANDS FULLY EXPLAINED & TAXED (RS.1,54 ,20,346 /- IN A.Y. 2007-08 & RS.9,74,659/- IN A.Y. 2008-09) (R EFER PB 84 ITA NO.234 & CO-60/AGR/2010 & 241/AGR/2012. A.YS.2007-08 & 2008-09. 16 TO 99) (PB 99A TO 99B) VARIOUS WITHDRAWALS HAVE BEE N MADE FROM TIME TO TIME IN THIS ACCOUNT. ALL THE PAYMENT S WHICH ARE SHOWN IN ANNEXURE E-L HAVE BEEN REFLECTED BETWEEN 1 1.10.2007 TO 19.10.2007. THE TOTAL OF ANNEXURE E-1 IS RS.59, 60,900/- WHEREAS THE AMOUNT REFLECTED IN VIJAY BHAI ACCOUNT BETWEEN 11.10.2007 TO 19.10.2007 IS RS.54,50,000/-. THE RES IDUE AMOUNT OF RS.5,10,900/- WAS PAID BY SHRI VIJAY BHAI DIRECTLY WITHOUT ROUTING IT THROUGH THE CONSOLIDATED ACCOUNT S OF THE GROUP CONCERN. REGARDING PAYMENT OF RS.21,26,114/- FOR BARDANA PURPOSE, IT IS CLARIFIED THAT THIS AMOUNT I S NOT A PAYMENT. THIS IS A CREDIT ENTRY AGAINST WHICH THE PAYMENT OF RS.25,00,000/- IS MADE ON 27.08.2007 AND REFLECTED IN THE ACCOUNT OF VIJAY BHAI. HENCE THE ENTIRE BLOCK OF R S.80,87,014/- ALREADY STANDS TAXED &, THEREFORE, THE ADDITION MAD E BY ID. AO MAY KINDLY BE DELETED. ---------- 4.1 FOR DELETION OF THIS ADDITION, THE ID. AR OF THE APPELLANT VIDE HIS WRITTEN SUBMISSIONS HAS SUBMITTED AS UNDER: THE ID. AO HAS MADE AN ADDITION OF RS.2,34,643/- O N ACCOUNT OF ALLEGED UNACCOUNTED INTEREST RECEIVED ON THE ADV ANCES MADE TO FARMERS. AS IS EVIDENT FROM THE ASSESSMENT ORDER THE INTERES T TO THE TUNE OF RS.8,53,248/- WAS RECEIVED OUT OF WHICH THE APPE LLANTS SHARES WAS CALCULATED BY THE ID. AO AT RS.2,43,643/ - BEING 27.5% OF RS.8,53,428/-. IN THIS REGARD THE ASSESSEE HUMBLY SUBMITS THAT THE ENTIRE INTEREST INCOME HAS BEEN INCLUDED IN THE INCOME OF SHRI VIJAY KUMAR AGARWAL AS IS ALSO EVIDENT FROM THE AFFIDAVIT OF SHRI VIJAY KUMAR AGARWAL AND FORMS PART OF HIS TOTAL INC OME. THIS FACT HAS ALSO BEEN STATED IN THE COURSE OF ASSESSME NT PROCEEDINGS OF SHRI VIJAY KUMAR AGARWAL. THE COPY OF WHICH IS GIVEN AT PB 106 & 110A. HENCE THE ENTIRE AMOUNT OF INTEREST STANDS TAXED ALREADY IN THE CASE OF SHRI VIJAY KUMA R AGARWAL. FURTHER, THE AO HAS ACCEPTED THE RETURN OF INCOME O F SHRI VIJAY KUMAR AGARWAL WHEREIN THE COURSE OF ASSESSMENT PROC EEDINGS U/S.143(3) IT WAS CATEGORICALLY STATED BY HIM ON OA TH THAT THE INCOME OF RS.8,53,428/- BELONGED TO HIM AND WAS THU S INCLUDED ITA NO.234 & CO-60/AGR/2010 & 241/AGR/2012. A.YS.2007-08 & 2008-09. 17 IN THE RETURN OF INCOME. HERE IT WILL NOT BE OUT O F PLACE TO MENTION THAT THE ENTIRE INCOME OF RS.8,53,428/- ST OOD IS TAXED AT MAXIMUM MARGINAL RATE AND IT IS ALSO NOT THE CA SE OF THE ID. AO THAT BY GAITING THE AFORESAID SUM TAXED IN THE H ANDS OF SHRI VIJAY KUMAR AGARWAL THERE IS A LOSS WHICH HAS OCCUR RED TO THE REVENUE. IT MAY KINDLY BE NOTED THAT IN EXACTLY IDENTICAL CI RCUMSTANCES THE ADDITION ON ACCOUNT OF INTEREST WAS MADE IN THE HANDS OF SHRI VIJAY KUMAR AGARWAL IN F.Y. 2006-07 (A.Y.2007- 08) (REFER PB 90 PARA 5). FURTHER IT HAS BEEN CATEGORI CALLY STATED BY THE APPELLANT THAT NO INTEREST IS COLLECTED & TH EREFORE, HAS NOT BEEN EVER SHOWN IN THE BOOKS. THEREFORE, THERE REMAINS NO LOGIC TO ADOPT A DIFFERENT STANDS IN YEAR IN QUESTI ON SO AS TO ATTRACT DOUBLE TAXATION WHICH CAN NEVER BE THE INTE NT OF LAW. UNDER THE CIRCUMSTANCES, THE ADDITION MADE ON THIS COUNT MAY KINDLY BE DELETED. 23. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PA RTIES AND RECORDS PERUSED. THE CONTENTION OF THE ASSESSEE THAT THE ACTIVITY RE LATED TO BARDANA AND ADVANCES TO FARMERS AND CHARGING OF INTEREST THEREON RELATES TO SHRI VIJAY KUMAR AGARWAL. SHRI VIJAY KUMAR AGARWAL IN A.Y. 2007-08 AND 2008-0 9 HAS SURRENDERED THE AMOUNT ON THESE ACCOUNTS. IT WAS SUBMITTED THAT UN DER SIMILAR FACTS AND CIRCUMSTANCES IN A.Y. 2007-08 THE PEAK OF CONSOLIDA TED CASH BOOK OF VIJAY BHAI WAS RS.1,63,95,005/- ON 18.06.2007 PERTAINS TO A.Y. 08-09. AS PER THE ASSESSEE, THE PEAK PERTAINING TO A.Y. 2007-08 RS.1,54,20,346/ - HAS ALREADY BEEN EXPLAINED IN THE HANDS OF SHRI VIJAY KUMAR AGARWAL IN A.Y. 20 07-08. THE PEAK DIFFERENCE OF RS.9,74,659/- IS PERTAINING TO A.Y. 2008-09 WHIC H HAS BEEN OFFERED TO TAX BY SURRENDER OF INCOME BY VIJAY BHAI IN A.Y. 2008-09. SIMILARLY, INTEREST RECEIVED ITA NO.234 & CO-60/AGR/2010 & 241/AGR/2012. A.YS.2007-08 & 2008-09. 18 WAS ALSO OFFERED TO TAX IN THE HANDS OF SHRI VIJAY KUMAR AGARWAL BY SURRENDERING THE AMOUNT IN A.Y. 2008-09. IT WAS SUBMISSION OF T HE ASSESSEE THAT TRANSACTION RELATING TO BARDANA AND INTEREST HAS BEEN EXPLAINED BY THE ASSESSEE AND THE SAME HAS BEEN OFFERED TO TAX IN THE HANDS OF SHRI VIJAY KUMAR AGARWAL. THEREFORE, NO SEPARATE ADDITION IS WARRANTED IN THE HANDS OF SMT. CHARU AGARWAL. ON PERUSAL OF ORDER OF CIT(A), WE NOTICE THAT THE CIT(A) SIMPLY R EPRODUCED THE A.O.S FINDING AND ASSESSEES SUBMISSION AND CONFIRMED THE ADDITIO N WITHOUT ANY DISCUSSION AND HIS FINDING IN RESPECT OF SUBMISSION OF THE ASSESSE E. THE CONTENTION OF THE ASSESSEE THAT THE TRANSACTION RELATED TO BARDANA AND INTERES T HAS FULLY BEEN EXPLAINED IN THE HANDS OF SHRI VIJAY KUAMR AGARWAL IN THE A.Y. 2008- 09 BY SURRENDERING INCOME ON THESE ACCOUNTS. DURING THE COURSE OF HEARING, T HE LD. AUTHORISED REPRESENTATIVE TRIED TO DEMONSTRATE THAT THIS AMOUNT HAS BEEN FULL Y EXPLAINED BY REFERRING VARIOUS PAGES OF PAPER BOOK PARTICULARLY PAGE NO.35 AND OTH ERS. WE NOTICE THAT THE PAGES OF PAPER BOOK REFERRED BY THE LD. AUTHORISED REPRES ENTATIVE AT THE TIME OF HEARING REQUIRES NECESSARY RECONCILIATION. IT HAS ALSO BEE N NOTICED THAT THERE IS NO CONSOLIDATED RECONCILIATION ON RECORD BASED ON WHIC H IT CAN BE SAID THAT THE TRANSACTION RELATING TO BARDANA AND INTEREST HAS BE EN THE ENTRIES FOR AMOUNTS WHICH WERE CONSIDERED FOR CALCULATION OF PEAK AMOUNT. IN THE ABSENCE OF COMPLETE RECONCILIATION OF DETAILS IN THIS REGARD THAT THE T RANSACTION RELATING TO BARDANA AND INTEREST WERE INCLUDED IN THE CONSOLIDATED CASH BOO K ON WHICH BASIS A PEAK AMOUNT HAS BEEN CALCULATED. IN THE ABSENCE OF COMPLETE FA CTS, THE ISSUE PERTAINING TO ITA NO.234 & CO-60/AGR/2010 & 241/AGR/2012. A.YS.2007-08 & 2008-09. 19 BARDANA AND INTEREST CANNOT BE DECIDED AT THIS STAG E. IN THE LIGHT OF ABOVE FACTS AND IN THE LIGHT OF THE FACT THAT THE ORDER OF CIT(A) I S NOT IN ACCORDANCE WITH SECTION 250(6) OF THE ACT, WE, THEREFORE, SEND BACK THIS MA TTER TO THE FILE OF CIT(A) WITH THE DIRECTION TO DECIDE THE ISSUE AFRESH IN ACCORDA NCE WITH LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF HEARING TO BOTH THE SIDES . 24. IN THE RESULT, APPEAL OF THE REVENUE IN THE CAS E OF SHRI VIJAY KUMAR AGARWAL AND THE CROSS OBJECTION OF SHRI VIJAY KUMAR AGARWAL BOTH ARE DISMISSED AND THE APPEAL OF THE ASSESSEE IN THE CASE OF SMT. CHARU AG ARWAL IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT) SD/- SD/- (BHAVNESH SAINI) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, AGRA BENCH, AGRA 6. GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY