Shri Pawan Kumar Joshi, JAIPUR V. ACIT, UDAIPUR

CO 72/JODH/2009

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 8011 (ITAT-JODHPUR)
• Duration Of Justice: 3 year(s) 1 month(s) 10 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 30-11-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 05-10-2012
• Assessment Year: misc
• Appeal Filed On: 20-10-2009
• Court: TRIBUNAL
• Department Lawyers: A K KHANDELWAL
• Keywords: Search and seizure; Loose papers; Principle of natural justice; Bonafide belief
• Section: 44AD; 6; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K.SAINI, ACCOUNTANT MEMBER ITSSA NO. 11/JU/2008 [ASSESSMENT YEARS: 1997-98 TO 2002-03 UPTO 2.5.2008 ] THE ACIT, VS. SHRI PAWAN KUMAR JOSHI, CIRCLE - 2, 22, SHASTRI NAGAR, SECTOR - 3 UDAIPUR HIRAN MAGRI, UDAIPUR PAN NO. AAVPJ 3783 G C.O NO. 72/JU/2009 ITSSA NO. 11/JU/2008 [ASSESSMENT YEARS: 1997-98 TO 2002-03 UPTO 2.5.2008] SHRI PAWAN KUMAR JOSHI, VS. THE ACIT, 22, SHASTRI NAGAR, SECTOR 3 CIRCLE - 2, HIRAN MAGRI, UDAIPUR UDAIPUR PAN NO. AAVPJ 3783 G (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SHRAWAN KUMAR GUPTA DEPARTMENT BY : SHRI AK KHANDELWAL, CIT, DR DATE OF HEARING : 05.10.2012 DATE OF PRONOUNCEMENT : 30.11.2012 2 ORDER PER HARI OM MARATHA, J.M. THIS APPEAL FILED BY THE REVENUE AND CROSS OBJECTION BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF THE CIT(A), UDAIPUR, DATED 02.05.2008 FOR ASSESS MENT YEARS 1997-98 TO 2002-03 UPTO 2.5.2008. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT A SEARCH AND SEIZURE OPERATION U/S 132 OF THE INCOME-TAX ACT , 1961 [HEREINAFTER REFERRED TO AS 'THE ACT', FOR SHORT] W AS CARRIED OUT ON 02.05.2002 AT THE RESIDENCE OF THE ASSESSEE. DU RING THE COURSE OF THIS SEARCH, CERTAIN LOOSE PAPERS AND DIA RIES WERE FOUND AND SEIZED. WHEN ASKED TO EXPLAIN VIDE LETTE R DATED 19.2.2004 BY THE A.O., THE ASSESSEE EXPLAINED VIDE LETTER DATED 7.4.2004. THE AVERMENTS OF THIS POCKET DIARY ARE A S UNDER: K.L.D 50000-00 RAILWAY DUE 7500 INTEREST 2 MONTHS 200000-165 KLD FOR 11250 INTEREST BANK GUARANTEE 1300/- INTEREST SEPT TO DEC 6000 INTEREST 950 INTEREST 11250 3 MONTHS 31.3.2002 3 PAGE NO. 42 50000 KLD 7.11.20101 9400 INTEREST 30000 KLD 12.11.20101 KHATOD SAH 250/- INTEREST 50000 KLD 23.11.20101 GOSHALA 100000 DUE 9400 INTEREST B.M 50000 8.7.2001 800 INTEREST BM 31.7.2001 100000 BM SECTOR 1500 INTEREST 30.9.2001 6750/- INTEREST 3300 INTEREST 4500 INTEREST 31.3.2002 PAGE NO. 29 2500 KLD 24/09 PAGE 44 100 DR 13.12.2001 LOAN. THE ASSESSEE HAS EXPLAINED THE ABOVE NOTINGS AS UND ER: RS. 2,00,000/- TAKEN AS LOAN FROM SHRI KANHAIYALAL DEOPURA FOR THE PURPOSE OF CONTRACT BUSINESS OF M/S VINAYAK CONSTRUCTION CO. BY SHRI PAWAN KUMAR JOSHI, PARTNER OF M/S VINAYAK CONSTRUCTION CO. THE CASH AMOUNT TAKEN AS LOAN HAS BEEN DEPOSITED IN THE BANK AND BANK GUARANTEE 4 OF RS. 265000/- HAS BEEN OBTAINED FROM THE BANK AGAINST THE CONSTRUCTION WORK OF HOSTEL AT THAKARDA AND PALMADAV DISTRICT, DUNGARPUR. THE ENTRIES OF LOAN, DEPOSIT IN BANK AND TRANSACTION WITH MARKETING BOARD ARE VERIFIABLE FROM THE CASH BOOK, BANK BOOK AND RECORDS OF M/S VINAYAK CONSTRUCTION CO. RS. 7500/- PAID AS INTEREST ON 31.7.2001 AGAINST LOAN OF RS. 2,00,000/- TAKEN ON 16.5.2001. THE INTEREST AMOUNT WAS FOR TWO AND HALF MONTHS ONLY @ 1.5% PER MONTH. THE INTEREST PAYMENT IS ALSO VERIFIABLE FROM THE BOOKS OF M/S VINAYAK CONSTRUCTION CO. RS. 11250/- PAID AS INTEREST ON 31.12.2001 AGAINST LOAN OF RS. 2,50,000/-. THE INTEREST AMOUNT WAS FOR THREE MONTHS ONLY @ 1.5% PER MONTH. THE INTEREST PAYMENT IS ALSO VERIFIABLE FROM THE BOOKS OF M/S VINAYAK CONSTRUCTION CO. RS. 1300/- PAID AS INTEREST UPTO 31.12.2001 FOR FOUR MONTHS AND EIGHT DAYS. THE INTEREST PAYMENT IS ALSO VERIFIABLE FROM THE BOOKS OF M/S VINAYAK CONSTRUCTION CO. RS. 950/- PAID AS INTEREST OF ONE MONTH TO SHRI KANHAIYALAL DEOPURA THROUGH KHATODE SB. ON 5 12.1.2001. THE INTEREST PAYMENT IS ALSO VERIFIABLE FROM THE BOOKS OF M/S VINAYAK CONSTRUCTION CO. ON THE BASIS OF THE CREDIT ENTRIES MADE IN THE DIAR Y, THE A.O. MADE THE TOTAL ADDITION OF RS. 8,20,950/- FOR ASSESSMENT YEAR 2002-03. THE LD. CIT(A) HAS DELETE D THIS ADDITION. THE REVENUE IS IN APPEAL. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE CAREFULLY PERUSED THE ENTIRE MATERIAL ON RECORD. I T IS FOUND FOR A FACT THAT THE CREDIT ENTRIES IN THE SEI ZED DIARY RELATE TO THE TRANSACTIONS OF LOAN AND INTERE ST PAYMENTS RECORDED IN THE BOOKS OF ACCOUNTS OF M/S VINAYAK CONSTRUCTION COMPANY WHEREIN SHRI PAWAN KUMAR, THE ASSESSEE, IS A PARTNER. THE A.O. HAS NO T DENIED THIS FACTUAL POSITION. BUT HE HAS NOT CONSI DERED THIS FACT BECAUSE THE BOOKS OF ACCOUNTS AND OTHER DOCUMENTS WERE NOT FOUND IN THE SEARCHED PREMISES A ND WERE NOT SEIZED DURING SEARCH. ON THE OTHER HAND, HE HAS ALSO RELIED ON CERTAIN PORTION OF THE STATEMENT S 6 RECORDED U/S 132(4) OF THE ACT. HE HAS EVEN IGNORE D THE VALID OBJECTION OF THE ASSESSEE THAT THE STATEMENT OF SHRI K.L. DEOPURA, RECORDED DURING THE COURSE OF SE ARCH PROCEEDINGS BEHIND HIS BACK HAVE NO EVIDENTIARY VAL UE. IN OUR OPINION, AS PER THE SETTLED LAW, THIS STATEM ENT CANNOT BE USED AGAINST THE ASSESSEE BECAUSE IT WAS NOT SUBJECT TO CROSS EXAMINATION BY THE ASSESSEE. ALL THE AMOUNTS ENTERED IN THE DIARY ARE DULY TAKEN INTO ACCOUNT IN THE BOOKS OF THE FIRM M/S VINAYAK CONSTRUCTION CO. THE BOOKS OF ACCOUNTS AND LEDGER ACCOUNT WERE ALSO PRODUCED BEFORE THE A.O. WE ARE IN AGREEMENT WITH THE LD. CIT(A)S FINDING WHERE HE HA S COMPARED THE FACTS AND FIGURES IN THE BALANCE SHEET OF M/S VINAYAK AS ON 31.3.2002. WE REPRODUCE THE SAME FOR READY REFERENCE: LEDGER PAGE NO. 19 & 20 OF M/S VINAYAK CONSTRUCTION CO. FOR THE PERIOD 1.4.2001 TO 31.3.2002. DR. CR. 16 TH MAY DR. CASH RECEIPT 200000 3 RD SEPT VIJYA BANK RECEIPT 100000 7 24 TH SEPT. CASH RECEIPT 25000 4 TH OCT. CASH PAYMENT 25000 4 TH OCT. CASH PAYMENT 5000 31 ST OCT. CASH PAYMENT 106000 12 TH NOV. CASH RECEIPT 30000 23RD NOV. CASH RECEIPT 50000 4 TH DEC. CASH PAYMENT 80000 6 TH DEC. CASH RECEIVED 49000 15TH DEC. CASH RECEIVED 11000 16 TH DEC. CASH RECEIVED 106000 17TH DEC. CASH PAYMENT 99300 6 TH JAN VIJYA BANK PAYMENT 105000 12TH JAN CASH PAYMENT 50000 13TH JAN CASH RECEIVED 50000 11TH FEB VIJAYA BANK PAYMENT 50000 TOTAL 520300 621000 100700 621000 621000 THIS CLOSING BALANCE OF RS. 1,00,700/- IS APPEARING IN THE BALANCE SHEET OF M/S VINAYAK CONSTRUCTION CO. A S ON 31.3.2002. SIMILARLY INTEREST PAYMENT ACCOUNT IS A S UNDER: 31 ST JUL CR. CASH PAYMENT 5250 7 TH OCT CR. CASH PAYMENT 9400 7 TH OCT CR. CASH PAYMENT 1500 7 TH OCT PAID TO DAYARAM PAYMENT 3165 8 TH OCT CR. CASH PAYMENT 10500 1 ST DEC CR. CASH TO DAYARAM PAYMENT 6500 8 4-12 PAID TO BM PAYMENT 6000 4-12 CASH PAID PAYMENT 1200 4-12 PAID TO KLD PAYMENT 11250 4-12 CASH KHATOD PAYMENT 250 17-12 CASH PAID PAYMENT 3450 17-12 CASH PAID TO KLD PAYMENT 7500 6-1 CASH PAID PAYMENT 1300 13-3 CASH TO DAYARAM PAYMENT 2750 70015 THE AMOUNT OF INTEREST AS APPEARING IN THE DIARY OF THE APPELLANT IS INCLUDED IN THE ABOVE INTEREST PAYMENT ACCOUNT AND THIS AMOUNT HAS BEEN ALLOWED AS EXPENDITURE IN THE CASE OF M/S VINAYAK CONSTRUCTION CO. (VII) THE AO HAS ALSO NOT CONSIDERED THE WHOLE ENTRIES IN THE DIARY AND LOOSE PAPERS. IF ONE SIDE OF THE DOCUMENTS IS CONSIDERED, THE OTHER SIDE SHOULD HAVE ALSO BEEN CONSIDERED TO ARRIVE E AT THE RIGHT CONCL USION (VIII) THE AO HAS EVEN CALLED FOR THE BOOKS OF ACCOUNT AND OTHER DOCUMENTS IN WHICH THE ENTRIES HAVE BEEN PASSED FOR VERIFICATION. THE AO SHOULD HAVE GONE THROUGH THE BOOKS TO VERIFY THE CORRECTNESS OF THE APPELLANT'S CONTENTION. (IX) THE ASSESSMENT HAS BEEN COMPLETED UNDER BLOCK SCHEME U/S 158BC/BB/143(3) OF THE ACT. IT WAS MANDATORY ON THE PART OF THE AO TO CALL FOR REGULAR 9 BOOKS OF ACCOUNT T OF M/S VINAYAK CONSTRUCTION CO. TO VERIFY THE FACTS. IN A CASE U/S 158BC. NO ADDITION CAN BE MADE IF THE AMOUNTS HAVE BEEN SHOWN IN THE REGUL AR BOOKS OF ACCOUNT. (X) IN THE A PPEL LAN T'S CASE, THE A.O. ONLY LOOKED INTO THE ENTRY IN THE DIARY AND WENT THROUGH THE STATEME NTS RECORDED IN THE CASE OF SHRI K.L. DEOPURA. WHICH IS AGAINST NATURAL JUSTICE (XI) FURTHER THE AMOUNTS HAVE BEEN SHOWN IN THE BOO KS OF ACCOUNT OF THE FIRM. THE INTEREST HAS ALSO BEEN PAID BY THE FIRM AND NOT BY THE APPELLANT. THE INTEREST AMOUNT NOTED IN THE DIARY IS FOR THE SAKE OF MEMORY . FROM THE ABOVE FACTS IT EMERGES THAT THE APPELLANT SHRI PAWAN KUMAR JOSHI IS REGULAR ASSESSEE OF INCOME TAX SINCE 1993-94. ACKNOWLEDGMENT OF RETURNS AND ASSESSMENT ORDER WERE AVAILABLE ON RECORDS WITH AO AT THE TIME OF SEARCH ASSESSMENT PROCEEDINGS U/S 158BC. THE APPELLANT WAS PARTNER OF FIRM M/S VINAYAK CONSTRUCTION CO. AT THE TIME OF SEARCH AND SEIZURE PROCEEDINGS. HIS ONLY SOURCE OF INCOME IN THE YEAR OF SEARCH WAS SALARY, SHARE OF PROFIT AND INTEREST ON CAPITAL FROM THIS PARTNERSHI P FIRM ONLY. THIS FACT WAS CLEARLY STATED BY THE 10 APPELLANT IN THE STATEMENT TAKEN AT THE TIME OF SEARCH AS WELL AS IN THE STATEMENT TAKEN IN THE POS T SEARCH PROCEEDINGS. THE RELEVANT EVIDENCES WERE ALSO AVAILABLE FOR CROSS VERIFICATION IN THE RECORD S OF AO. THE REGULAR BOOKS OF ACCOUNT RELATED TO CONTRACT BUSINESS OF PARTNERSHIP FIRM WERE MAINTAINED YEAR TO YEAR. IN FIRST TWO YEARS I.E. ASSESSMENT YEAR 2000-01 AND 2001-02, THE RETURNS WERE FILED U/S 44AD OF THE ACT. THE RETURN FOR ASSESSMENT YEAR 2002-03 WAS FILED ON THE BASIS OF AUDITED ACCOUNT U/S 44AB. FOR THE ASSESSMENT YEAR 2003-04 THE RETURN WAS FILED U/S 4 IAD. RELEVANT EVIDENCES RELATED TO ASSESSMENT OF FIRM M/S VINAYAK CONSTRUCTION CO. WERE ALSO FURNISHED BY THE APPELLANT DURING THE POST SEARCH PROCEEDINGS AND WERE DULY AVAILABLE WITH THE AO. THE APPELLANT USED TO NOTE DOWN THE MEMORY TRANSACTION IN HIS PERSONAL DIARIES WHICH WERE FOUN D AND SEIZED DURING THE SEARCH AND SEIZURE PROCEEDINGS. THIS NOTING CONTAINS JOTTINGS RELATED TO CONTRACT BUSINESS OF PARTNERSHIP FIRM. 11 THE APPELLANT HAS STATED THIS FACT IN HIS STATEMENT DATED 2-5-2002 AND 27-6-2002 TAKEN DURING THE SEARCH AND POST SEARCH PROCEEDINGS, IN ANSWER TO QUESTION NO.4 OF THE STATEMENT DATED 2-5-2002 AND ANSWER TO QUESTION NO. 1 OF DATED 27-6-2002. THE RELEVANT RECORDS I.E. CASH BOOK, LEDGER, JOURN AL BOOK, BANK BOOK, COPY OF BANK STATEMENTS OF M/S VINAYAK CONSTRUCTION CO. WERE PRODUCED BEFORE THE A.O. AT THE TIME OF ASSESSMENT AND COPIES OF THE SAME WERE PROVIDED FOR RECORDS. COMPLETE EXPLANATION RELATED TO NOTING ON VARIOUS LOOSE PAPERS ASKED FOR BY THE A.O. WERE FURNISHED BY THE APPELLANT DURING ASSESSMENT PROCEEDINGS. THE TRANSACTIONS OF ACCEPTANCE AND REPAYMENT OF DEPOSIT/LOANS (KLD) WERE RECORDED IN THE MEMORANDUM DIARIES AS WELL AS IN THE REGULAR BOOKS OF ACCOUNT OF M/S VINAYAK CONSTRUCTION CO. THE PAYMENTS OF INTEREST AGAINST THE LOANS ARE ALSO APPEARING IN THE DIARIES AS WELL AS IN THE ACCOUNTS OF THE FIRM. THE LOANS TAKEN IN CASH WERE REPAID DURING THE BLOCK PERIOD ITSELF. THE AO THROUGH OUT IN THE ORDER STICK ON THE STATEMENT OF SHRI K.L. DEOPURA, RECORDED DURING THE COURSE OF ASSESSMENT PROCEEDINGS IN HIS CASE, WITHOUT CONFRONTING THE 12 APPELLANT. THE AO HAS NOT ALLOWED CROSS EXAMINATION TO THE APPELLANT TO REBUT THE CLAIM OF SHRI K.L. DEOPURA. THE STATEMENT RECORDED BEHIND BACK OF THE APPELLANT CANNOT BE USED AGAINST THE APPELLANT UNLESS OPPORTUNITY TO REBUT THE SAME HAS BEEN ALLOWED TO THE APPELLANT. THE AO HAS ALSO NOT CONSIDERED THE WHOLE DEBIT AND CREDIT ENTRIES IN TOTO APPEARING IN THE LOOSE PAPERS OR DIARY. IF ONE SIDE OF THE DOCUMENT IS CONSIDERED, THE OTHER SIDE SHOULD HAVE ALSO BEEN CONSIDERED TO ARRIVE AT THE RIGHT CONCLUSION. THERE REMAINS NO BALANCE IN THE ACCOUNT OF SHRI KANHIYA LAL DEOPURA, IF DEBIT AS WELL AS CREDIT CASH ENTRIES WERE CONSIDERED. THE AO HAS NOT APPRECIATED THE BOOKS OF ACCOUNT AND OTHER DOCUMENTS IN WHICH THE ENTRIES HAVE BEEN PASSED. THE AO SHOULD HAVE GONE THROUGH THE BOOKS TO VERIFY THE CORRECTNESS OF THE APPELLANT'S CONTENTIONS AND VERIFICATION OF GENUINENESS OF TRANSACTION. THE ASSESSMENT HAS BEEN COMPLETED UNDER BLOCK SCHEME U/S 158BC/158BD/I43(3) OF THE ACT. IT WAS MANDATORY ON THE PART OF THE AO TO CALL FOR REGULAR BOOKS OF ACCOUNT OF M/S VINAYAK CONSTRUCTION CO. TO VERIFY THE FACTS. IN A CASE UNDER SECTION I58BC, NO 13 ADDITION CAN BE MADE, IF THE AMOUNT HAVE BEEN SHOWN IN THE REGULAR BOOKS OF ACCOUNT. THE AO HAS NOT APPRECIATED THE FACT THAT ALMOST ALL ENTRIES RELATED TO SHRI KANHIYA LAL DEOPURA ALONGWITH INTEREST WERE AVAILABLE IN THE BOOKS OF ACCOUNT OF THE FIRM. THE SAME CANNOT BE CONSIDERED IN THE HANDS OF THE APPELLANT FOR ASSESSMENT U/S 158BC. THE A.O. HAS NOT CONSIDERED THE OTHER SEIZED MATERIAL ALSO BEFORE FRAMING THE ASSESSMENT OF THE APPELLANT U/S 158BC. HE HAD EVEN NOT CALLED THE RELEVANT RECORD OF THE FIRM M/S VINAYAK CONSTRUCTION CO. FROM THE AO HAVING JURISDICTION OVER THE CASE OF THE FIRM. FROM THE OTHER SEIZED RECORD I.E. ANNEXURE-A-1 TO A-5, IT IS CRYSTAL CLEA R THAT ALMOST ALL NOTING IN THE DIARIES WERE RELATED TO CONTRACT BUSINESS OF FIRM. THE AO HAS NOT EVEN MENTIONED ABOUT THESE SEIZED MATERIAL IN THE ASSESSMENT ORDER. AS PER STATEMENT OF THE APPELLANT, THE CASE OF PARTNERSHIP FIRM SHOULD HAVE ALSO BEEN CENTRALIZED BUT WAS NOT DONE SO. THE AO FAILED TO APPRECIATE THE FACT THAT THE INCOME TAX DEPARTMENT HAS INITIATED THE SEARCH PROCEEDINGS AGAINST SHRI KANHIYALAL DEOPURA WITH THE ORIGINAL SEARCH WARRANT WHICH MEANS THAT THE DEPARTMENT WAS UNDER BONAFIDE BELIEF THAT UNDISCLOSED INCOME AND UNDISCLOSED ASSETS WILL BE 14 FOUND IN THE COURSE OF SEARCH AND SEIZURE PROCEEDINGS AGAINST HIM. THE AO HAS PASSED THE ORDER AGAINST THE APPELLANT JUST ON THE BASIS OF STATEMENT OF SHRI KANHAIYALAL DEOPURA, WHICH IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE, BECAUSE NO ONE WILL ADMIT THE TRANSACTIONS WHICH WERE NOT RECORDED BY HIM IN HIS BOOKS. HOWEVER, THE RECIPIENTS HAS NOTED THE RECEIPTS AS WELL AS REPAYMENTS OF THE SAME ALONGWITH PAYMENT OF INTEREST THEREON. IN THE PRESENT CASE THE ULTIMATE BALANCE OF THE CASH TRANSACTIONS WITH SHRI KAHAIYALAL DEOPURA BECOMES NIL ON THE DATE OF SEARCH. THE AO ALSO WRONG IN CALCULATING THE UNDISCLOSED INCOME ON THE BASIS OF SOME SELECTED ENTRIES FROM THE MEMORANDUM DIARY ON PICK AND CHOOSE METHOD AND THAT TOO WITHOUT ANY CORROBORATIVE EVIDENCE FOR THE SAME. HE HAS NOT BEEN ABLE TO FIND OUT OR POINT OUT ANY ASSETS OR PROPERTY ACQUIRED OUT OF ALLEGED UNDISCLOSED INCOME OF THE APPELLANT. THE AO HAS WORKED OUT THE UNDISCLOSED INCOME WITHOUT CONSIDERING THE PEAK AMOUNT OR WITHOUT APPLYING THE PRINCIPLES OF CYCLING OF FUND AS WELL AS HAS NO T ALLOWED THE TELESCOPIC SET OFF OF AVAILABLE FUND. 15 THUS, THE UNDISCLOSED INCOME CANNOT BE ASSESSED IN THE HANDS OF THE APPELLANT. MOREOVER THE CALCULATION OF UNDISCLOSED AMOUNT ITSELF IS WRONG. THEREFORE, THE ADDITION IS DELETED. THE APPEAL IS ALLOWED ON THIS GROUND. THUS, IT IS MANIFESTLY CLEAR THAT THE EVIDENCE FOUN D IN THE FORM OF ENTRIES IN THE DIARY ARE ALREADY ON REC ORDS OF THE A.O. IN THE CASE OF THE FIRM, IN WHICH THE ASSESSEE IS A MANAGING PARTNER. IT IS PROVED FROM R ECORD THAT THE NOTING ON THIS DIARY ARE RELATED TO THE FI RM ONLY. WE ARE TOTALLY IN AGREEMENT WITH THE ABOVE FINDING OF THE LD. CIT(A). ACCORDINGLY, WE DO NOT F IND ANY MERIT IN THE GROUND RAISED BY THE REVENUE IN THIS REGARD. HENCE, WE DISMISS THE SAME AND CONFIRM THE IMPUGNED DELETION OF RS. 8,20,950/- 4. THE ISSUE OF SURCHARGE U/S 113 OF THE ACT IS NO LONGER RES INTEGRA. THE HON'BLE SUPREME COURT IN TH E CASE OF CIT VS. N. GUPTA REPORTED IN 297 ITR 322 16 [HON'BLE SUPREME COURT] HAS FINALLY SETTLED THIS IS SUE AND IT IS CHARGEABLE EVEN WHERE SEARCH TOOK PLACE BEFORE 1.6.2002.THIS GROUND, I.E., GROUND NO. 2 IS, THEREFORE, ALLOWED 5. THE LD. A.R. SHRI SHRAWAN KUMAR GUPTA APPEARING FOR THE ASSESSEE DID NOT PRESS GROUNDS RAISED IN TH E CROSS OBJECTION. THEREFORE, THE CROSS OBJECTION STA NDS DISMISSED AS NOT PRESSED. 6. TO SUM UP, THE APPEAL OF THE REVENUE IS PARTLY ALLOWED WHEREAS THE CROSS OBJECTION OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 30.11.2012. SD/- SD/- (N.K.SAINI) [HARI OM MARATHA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 30 TH NOVEMBER, 2012 VL/- 17 COPY TO: THE APPELLANT THE RESPONDENT THE CIT BY ORDER THE CIT(A) THE DR ASSISTANT REGISTRAR ITAT, JODHPUR