SHRI SHAM LAL DUGGAL , PHAGWARA V. INCOME TAX OFFICER WARD-3, PHAGWARA

ITA 08/ASR/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7131 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 09-01-2019
• Assessment Year: 2008-2009
• Appeal Filed On: 05-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHAWANI SHANKAR
• Assessee Lawyers: Y K SUD
• Keywords: Business income; Loose papers; Revised return
• Section: 133A; 143(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CAMP BENCH SMC AT JALANDHAR BEFORE SH. N. K. SAINI, HONBLE VICE PRESIDENT ITA NO.8/ASR./2018 : ASSTT. YEAR : 2008-09 SH. SHAM LAL DUGGAL, PROP. LEKH RAJ EMPORIUM, GAUSHALA BAZAR, PHAGWARA VS INCOME TAX OFFICER, WARD-3, PHAGWARA (APPELLANT) (RESPONDENT) PAN NO. AADPL8986F ASSESSEE BY : SH. Y. K. SUD, CA REVENUE BY : SH. BHAWAN I SHANKAR, DR DATE OF HEARING : 09.01.2019 DATE OF PRONOUNCEMENT : 16.01.2019 ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 23.10.2017 OF LD. CIT(A)-2,JALANDHAR. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L: 1. THAT THE CIT(A) WAS NOT JUSTIFIED IN SUSTAINING THE ADDITION OF RS.726943/- ON ACCOUNT OF ALLEGED COMMI SSION EARNED FROM THE ADDITION OF RS.1235143/- MADE BY TH E ITO. 2. THAT WHILE SUSTAINING THE ADDITION THE CIT(A) CL EARLY OVERLOOKED THE SUBMISSIONS OF THE ASSESSES THAT THE TRANSACTIONS ON WHICH THE ADDITIONS HAVE BEEN MADE BY THE ITO DO NOT PERTAINS TO THE CONCERNED ASSESSMENT YEARS. 3. THAT EVEN AS PER THE ORDER OF THE CIT(A) THERE I S A CALCULATION MISTAKE OF RS.50000/- IN THE ADDITION SUSTAINED BY HIM. ITA NO. 8/ASR./2018 SHAM LAL DU GGAL 2 4. THAT THE AO AS WELL AS CIT(A) FAILED TO REDRESS THE GRIEVANCE OF THE ASSESSEE FOR ALLOWING EXPENSES AGA INST THE GROSS COMMISSION ASSESSED BY THE AO. 5. THAT THE ORDER OF AO AND CIT(A) ARE AGAINST THE LAW AND FACTS OF THE CASE. 3. FROM THE ABOVE GROUNDS, IT IS GATHERED THAT ONLY GRIEVANCE OF THE ASSESSEE RELATES TO THE SUSTENANCE OF ADDITION OF RS.7,26,943/- OUT OF THE ADDITION OF RS.12,35,143/- MADE BY THE A O. 4. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 28.09.2008 DECLARING AN INCOME OF RS.2 ,67,990/- WHICH WAS PROCESSED U/S 143(1) OF THE INCOME TAX AC T, 1961 (HEREINAFTER REFERRED TO AS THE ACT). LATER ON, THE AO RECEIVED THE INFORMATION FROM ACIT, CIRCLE, PHAGWARA THAT A SURV EY U/S 133A OF THE ACT WAS CONDUCTED ON 18.02.2014 AT THE BUSINESS PREMISES OF SH. CHUNNI LAL GABA, GORAYA FROM WHERE CERTAIN DOCU MENTS WERE FOUND/IMPOUNDED WHICH REVEALED THAT THE ASSESSEE WA S ENGAGED IN PROPERTY DEALING BUSINESS ON COMMISSION BASIS AND D URING THE YEAR EARNED COMMISSION OF RS.13,85,143/- ON TOTAL TRANSA CTIONS OF RS.13,85,14,380/-. ACCORDINGLY, THE AO INITIATED TH E PROCEEDINGS U/S 147/148 OF THE ACT. IN RESPONSE, THE ASSESSEE R EVISED THE RETURN OF INCOME ON 07.05.2015 SHOWING INCOME OF RS.2,50,6 58/- UNDER THE HEAD BUSINESS INCOME AND RS.1,50,000/- AS ADDIT IONAL INCOME UNDER THE HEAD INCOME FROM OTHER SOURCE ON ACCOUN T OF COMMISSION. DURING THE COURSE OF ASSESSMENT PROCEED INGS, THE AO ASKED THE ASSESSEE TO EXPLAIN AS TO WHY AN INCOME O F RS.13,85,143/- EARNED AS COMMISSION @ 1% ON THE TOT AL TRANSACTION OF RS.13,85,14,380/- MAY NOT BE ADDED IN HIS RETURN OF INCOME. ITA NO. 8/ASR./2018 SHAM LAL DU GGAL 3 5. IN RESPONSE, THE ASSESSEE SUBMITTED AS UNDER: DURING THE YEAR UNDER SCRUTINY THE ASSESSEE WAS EN GAGED IN A BUSINESS OF RETAIL TRADE OF UNSTITCHED GARMENT S. COPY OF BALANCE SHEET, AUDIT REPORT, INCOME COMPUTATION HAS ALREADY BEEN FILED VIDE REPLY DATED MAY 8, 2015. TH E ASSESSEE CARRIED OUT A BUSINESS OF COMMISSION AGENT OF MR. CHUNNI LAL GABA OF GORAYA BRIEFLY DURING 2006-07 & 2007-08. HOWEVER THE EARNINGS FROM THIS ACTIVITY WE RE ERRATIC AND INSIGNIFICANT, HENCE THE ASSESSEE DID N OT MAINTAIN ANY ACCOUNTS FOR THE SAME AND DID NOT DECL ARE THIS INCOME IN HIS ORIGINAL ITR. SINCE NO ACCOUNTS WERE MAINTAINED FOR THIS ACTIVITY, THE ASSESSEE IS NOT I N A POSITION TO PROVIDE PROPERTY WISE DETAILS OF SALE/P URCHASE OF LAND/COLONIES DEVELOPED BY SH. CHUNNI LAL DURING THE FY 2007-08.SINCE NO ACCOUNTS WERE MAINTAINED FOR THIS ACTIVITIES, THE ASSESSEE IS NOT IN A POSITION TO PR OVIDE YEAR MONTH WISE AMOUNT RECEIVED AS COMMISSION FROM SH. CHUNNI LAL. THE ASSESSEE HOWEVER ESTIMATES THE QUAN TUM OF LAND DEALING MADE ON ACCOUNT OF CHUNNI LALS HOLDIN G TO THE TUNE OF RS. 2 CRORES ON WHICH A COMMISSION OF 1 % WAS CHARGED. HENCE THE ASSESSEE ESTIMATES THE GROSS COMMISSION TO BE APPROXIMATELY RS.2 LACS..THE AMO UNT OF RS.13,85,14,380/- ALLEGED AS VALUE OF TRADE NOT DECLARED BY THE ASSESSEE HAS BEEN WORKED OUT FROM TRANSACTIO NS CONFRONTED BY YOUR GOODSELF. THESE TRANSACTIONS ARE LISTED BELOW: I) PART OF HADIABAD COLONY FOR RS. 1.25 CRORES. NOT PROVIDED II) PART OF HADIABAD COLONY(4 ACRES) I FOR RS.5 CRO RES NOT PROVIDED III) PLOTS IN GOBINDPURA COLONY FOR RS.1,38,53,380/ - ANN 3 (11) IV) PLOTS IN MANGAL SINGH COLONY I FOR RS.1,52,90,0 00/-( OF ANNEXURE 3) PAGE 11 V) DEAL FOR PLOT AT LUDHIANA FOR RS.69.71 LACS (PAG E 19 OF ANNEXURE3) VI) PROPERTY DEAL AT JAND WALA(TENEHERA ROAD) FOR RS.190.80 LACS(PAGE 32 OF ANNEXURE 3) VII) DEAL FOR AGRICULTURE LAND AT HADIABAD I FOR RS .97 LACS(PAGE 57 OF ANNEXURE 3) ITA NO. 8/ASR./2018 SHAM LAL DU GGAL 4 VIII) MALWA OF BANGA COLONY WAS FOR RS.53 LACS(PAGE10 OF ANNEXURE 3) XI) PROPERTIES AT MEHTAN AND HADIABAD FOR RS. 58,20 ,000 LACS(PAGE 19OF ANNEXURE 3) PERUSAL OF THE ANNEXURES PROVIDED BY YOUR OFFICE SH OWS THAT THE SUM OF RS. 138514380/- AS WORKED OUT BY YO UR OFFICE IS INCORRECT. 6. THE AO, HOWEVER, DID NOT FIND MERIT IN THE SUBMI SSION OF THE ASSESSEE AND HELD THAT THE ASSESSEE HAD EARNED COMMISSION OF RS.13,85,143/- AND HAD SHOWN INCOME OF RS.1,50,000/- ONLY IN THE REVISED R ETURN. HE, THEREFORE, MADE THE ADDITION OF REMAINING AMOUNT OF RS.12,35,143/-. 7. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND SUBMITTED AS UNDER: A) THE AMOUNT OF RS.13,85,14,380/- ALLEGED AS VALU E OF TRADE NOT DECLARED BY THE ASSESSEE HAS BEEN WORKED OUT FROM T RANSACTIONS CONFRONTED BY YOUR GOODSELF. THESE TRANSACTIONS ARE LISTED BELOW: AMOUNT REFERENCE I. PART OF HADIABAD COLONY 1,25,00,000 NOT PROVIDED II. PART OF HADIABAD COLONY 5,00,00,000 NOT PROVIDED III. PLOTS IN GOBINDPURA COLONY 1,38,53,380 ANNEXURE 3(11) IV. PLOTS IN MANGAL SINGH COLONY 1,52,90,000 ANNEXURE 3(11) V. PLOTS AT LUDHIANA 69,71,000 ANNEXURE 3(19) VI. PROPERTY DEAL AT JANDWALA TENEHERA RAOD 1,90,80,000 ANNEXTURE 3(32) VII. AGRICULTURAL LAND AT HADIABAD 97,00,000 ANNEXURE 3(57) VIII. MALWA OF BANGA COLONY 53,00,000 ANNEXURE 3(10) IX. MEHTAN AND HADIABAD PROPERTY (21LACS + 37.20LACS) 58,20,000 ANNEXURE 3(10) TOTAL 13,85,14,380 ITA NO. 8/ASR./2018 SHAM LAL DU GGAL 5 B) PERUSAL OF THE ANNEXURES PROVIDED BY YOUR OFFICE SHOWS THAT THE SUM OF RS.13,85,14,380 AS WORKED OUT BY YOUR OFFICE IS INCORRECT AT THE FOLLOWING COUNTS: I. TRANSACTION DETAIL FOR RS.1.25 CRORE FOR HADIABA D COLONY & 3 KOTHIS HAS NOTT BEEN SPECIFIED AS PER REFERENCE ABO VE. HOWEVER, A REVIEW OF ANNEXURE 3 PAGE 1 SHOWS THAT THIS ITEM RELATES TO FY 2006-07 AND FY 2005-06. II. TRANSACTION DETAIL OF RS.5.00 CRORE FOR HADIABA D COLONY HAS NOT BEEN SPECIFIED AS PER REFERENCE ABOVE. THIS IS A VAGUE CALCULATION. THERE WAS NO SUCH TRADE EXECUTED BY ME . NEITHER DO THE CONFRONTED DOCUMENTS SPEAK OF ANY SUCH TRANSACT ION. III. ITEM AMOUNTING RS.1,38,53,380 MENTIONED AT ANN EXURE 3 PAGE 11 IS A SUMMARY OF TRADE WHICH IS DETAILED AT ANNEXURE 3(10) PAGES 12 & 13. IV. ITEM AMOUNTING TO RS.1,52,90,000 AT ANNEXURE 3 PAGE 11 IS A SUMMARY OF PROPOSED TRADE DETAILED AT ANNEXURE 3 PA GES 12 & 13. V. ITEM AMOUNTING TO RS.69.71 LACS FOR PLOT AT LUDH IANA RELATES TO TRADE EXECUTED DURING FY 2005-06 & FY 2006-07. VI. ITEM AMOUNTING TO RS.190.80 LACS RELATES TO TRA DE EXECUTED DURING FY 2008-09 & 2011-11. VII. ITEM AMOUNTING TO RS.97 LACS RELATES TO TRADE EXECUTED DURING FY 2005-06 & 2006-07. PAGE NUMBER 10 OF ANNEXURE 3 NOT PROVIDED HENCE CANNOT BE COMMENTED UPON FOR MALWA BANGA RS.53 LACS. VIII. ITEM PAGE 9 OF ANNEXURE 3 FOR RS. 21 LACS & R S. 37.20 LACS ARE COVERED AT PAGE 13 IN THE AMOUNT OF RS.1,89,01, 107. AS EXPLAINED ABOVE, ONLY THE AMOUNT OF RS.1,89,01,1 07 IS RELEVANT TO THE AY 2008-09 WHICH IS WELL COVERED IN RS. 2 CR ORE AS DECLARED BY THE ASSESSEE. ITA NO. 8/ASR./2018 SHAM LAL DU GGAL 6 C) IT IS PERTINENT TO NOTE THAT CERTAIN PAGES WERE PROVIDED BY YOUR OFFICE IN RESPONSE TO THE REQUEST FOR COPY OF IMPUG NED DOCUMENTS. THESE BEAR REFERENCE NUMBERS: ANNEXURE 3 PAGES 1 TO 9, 11 TO 14, 16, 17, 20, 21, 32 & 57 ANNEXURE 9 PAGES 145 TO 166 ANNEXURE 10 PAGES 88, 141, 142 ANNEXURE 11 PAGES 165-169 ANNEXURE 16 PAGES 12, 13, 41 & 92 ANNEXURE 18 PAGES 53 TO 60 ANNEXURE 3, PAGE NUMBER 10 IS MISSING FROM WHERE AN ALLEGED TRADE OF RS. 53 LACS WAS SOUGHT TO BE TAXED. YOU AR E REQUESTED TO PROVIDE A COPY O THE SAME. D) A PAGE WISE SUMMARY OF THESE DOCUMENTS IS ANNEXE D WHERE IN EACH PAGE HAS BEEN EXPLAINED ALONG WITH THE RELEVAN CE OF THE SAME TO AY 2008-09. E) THE ASSESSEE HAS NOT KEPT ANY RECORDS FOR THE RE LEVANT ASSESSMENT YEAR, YET THE SUM OF RS. 2 CRORES COVERS THE BUSINESS CARRIED OUT BY THE ASSESSEE ON BEHALF OF MR. CHUNNI LAL, AS EXPLAINED FURTHER IN THIS SUBMISSION. 8. THE LD. CIT(A) FORWARDED THE SUBMISSIONS OF THE ASSESSEE TO THE AO AND ASKED HIS COMMENTS, IN RESPONSE THE AO SUBMITTED AS UNDER: IN THIS CONNECTION, IT IS SUBMITTED THAT IN THE AS SESSMENT ORDER, THE THEN A.O. MENTIONED AS UNDER:- 'VIDE ORDER SHEET ENTRY DATED 21.12.2015, THE FOLLO WING DOCUMENTS/ ANNEXURE IMPOUNDED FROM THE BUSINESS PRE MISES OF (SH. CHUNNI LAL, GORAYA) CONTAINING DETAILS OF FINA NCIAL TRANSACTIONS WITH THE ASSESSEE, WERE CONFRONTED TO THE ASSESSEE FROM S. NO. (A) TO (I) IN WHICH AT S. NO. (B) IS TH E PROPERTY OF 'PART OF HADIABAD COLONY (4 ACRES) WERE SOLD THROUG H SH. SHAM LAL @ OF RS. 1.25 CRORES PER ACRE I.E. TOTAL FOR RS .5 CRORES. FURTHER, IT IS SUBMITTED THAT DURING THE COURSE OF SURVEY U/S 133A OF THE I.T. ACT, 1961, THE STATEMENT OF SH. GURMESH KU MAR S/O SH. ITA NO. 8/ASR./2018 SHAM LAL DU GGAL 7 CHUNNI LAL WAS RECORDED. THE COPY OF DOCUMENTS CONT AINED DETAILS OF FINANCIAL TRANSACTIONS OF SH. SHAM LAL DUGGAL (A SSESSEE) WERE SENT TO THIS OFFICE AS ANNEXURE-3, ANNEXURE-9 TO 11 , ANNEXURE-16 AND ANNEXURE-18, IN WHICH THE DOCUMENT ANNEXURE - A -10 RELATES TO THE PROPERTY IN RESPECT OF PART OF HADIABAD COLONY (4 ACRES) WHICH WAS SOLD THROUGH SH. SHAM LAL @ OF RS. 1.25 CRORES PER ACRE I.E. TOTAL FOR RS.5 CRORES. DURING THE COURSE OF SURVEY U/S 133A, THE STATEMENT OF SH. GURMESH KUMAR S/O SH. CHUHNI LAL WAS RECORDED AND ASKED TO EXPLAIN THE CONTENTS OF DOCUMENTS 1I TO 142 OF ANNE XURE - A-10, IMPOUNDED DURING SURVEY, SH. GURMESH KUMAR STATED A S UNDER:- 'AS EXPLAINED IN THE EARLIER PART OF MY STATEMENT, M/S WHITE ROSE ESTATE & INVESTMENT PVT. LTD., OUR GROUP COMPANY HA S ACQUIRED TENDS AND AFTER PLOTTING, SOLD THE SAME, IN HADIABA D COLONY, PHAGWARA, OUT OF TOTAL LAND (16 ACRE) PURCHASED BY OUR GROUP, 8 ACRE LAND WAS SOLD AFTER PLOTTING BY US @ RS.22,000 /- TO 25,000/- PER MARIA IN 2006, RS. 30,000/- TO 35,000/- PER MAR LA IN 2007 AND RS.35,000 TO 40,000/- PER MARLA IN 2008 AND BALANCE 4 ACRES (SHARE OF CHUNNI LAL & SONS) WAS SOLD @ RS, 1.25 CR. PER A CRE TO SH. DAVINDER KUMAR SAPRA PROPERTY DEALER OF PHAGWARA IN 2011-12 AND BALANCE 4 ACRE (SHARE OF HARMESH KUMAR) WAS SOL D @ RS. 1.25 CR. PER ACRE TO SH. SHAM LAI PROPERTY DEALER OF PH AGWARA IN 2011-12.' COPY OF ANNEXURE A-10 ALONGWITH COPY OF STATEMENT IS SUBMITTED HEREWITH. FROM THE ABOVE STATEMENT, IT IS CLEAR THAT OUT OF T OTAL LAND 16 ACRE, 4 ACRE LAND WAS SOLD @ RS. 1.25 CR. PER ACRE TO SH. SHAM LAL PROPERTY DEALER OF PHAGWARA IN 2011-12. IN THE LIGHT OF ABOVE FACTS, IT IS PRAYED THAT ASSE SSMENT ORDER PASSED U/S 147/143(3) OF THE IT. ACT, 1961 DATED 14.03.201 6, MAY BE UPHELD. ITA NO. 8/ASR./2018 SHAM LAL DU GGAL 8 9. THE LD. CIT(A) ALSO FORWARDED THE REMAND REPORT OF THE AO TO THE ASSESSEE AND ASKED THE COUNTER COMMENTS. IN RESPONS E, THE ASSESSEE SUBMITTED AS UNDER: 1.1 THE ASSESSEE REITERATES THE FACTS OF NON-CONFR ONTATION OF DOCUMENTARY EVIDENCE IN RELATION TO TRADES PERTAINI NG TO RS.5 CRORES. AS PER ASSESSING OFFICERS LETTER DATED 05. 09.2017, THE ASSESSEE CARRIED OUT A TRADE OF 4 ACRES AT HADIABAD COLONY WITH MR. GURMESH KUMAR S/O MR. CHUNNI LAL. 1.2 HOWEVER, THIS FACT HAS ONLY BEEN INFERRED FROM A STATEMENT BY THE SAID MR. GURMESH KUMAR. THERE IS NO DOCUMENTARY EVIDENCE TO PROVE WHETHER ANY TRADE WAS ACTUALLY CONDUCTED BY T HE ASSESSEE (MR. SHAM LAL DUGGAL) IN REGARD TO HADIABAD COLONY FOR 4 ACRES. THERE ARE NO SALE/PURCHASE DEEDS, AGREEMENT TO SELL , PAYMENT/RECEIPT VOUCHERS OR BAYANA ETC. 1.3 EVEN THE TYPESET STATEMENT FROM MR. GURMESH KUM AR AS ENCLOSED IN REPLY DATED 05.09.2017 HAS NOT BEEN SHO WN/CONFRONTED TO THE ASSESSEE EITHER IN ASSESSMENT PROCEEDINGS OR DURING THE REMAND PERIOD OF AUGUST-SEPTEMBER 2017. MERELY ON T HE BASIS OF A STATEMENT OF A THIRD PARTY, ADDITIONS WERE MADE TO THE INCOME O THE ASSESSEE WITHOUT AN OPPORTUNITY TO THE ASSESSEE TO EXPLAIN. 2.1 THE ASSESSEE'S VERSION REGARDING FAILURE OF ASS ESSING OFFICER'S SOVEREIGN RESPONSIBILITY TO PROVIDE THE B ASIS OF ALLEGED ADDITIONS GETS CORROBORATED BY THE CONCOCTION OF TH IS FICTIONAL STORY OF MR. GURMESH KUMAR WAS NEVER CONFRONTED TO THE AS SESSEE. 2.2 THE DOCUMENTS PERTAINING TO ANNEXURE A10, AS PR OVIDED BY THE ASSESSING OFFICER IN HER LETTER DATED 05-09-201 7 HAVE ALREADY BEEN DISCUSSED DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS. VIDE REPLY DATED 22-02-2016, THE ASSESSEE EXPLAINED THAT THE CONTENTS OF A-10 RELATE TO ADVANCES RECEIVED BY MR. CHUNNI LAL AND HAVE ALREADY BEEN INCLUDED IN SUBJECT MATTER OF ADD ITIONS AT A3(12) RS.1,89,01,107. THIS EXPLANATION IS ON RECORD AND H AS NOT BEEN REJECTED BY THE ASSESSING OFFICER. COPY OF REPLY D ATED 22-02-2016 IS ENCLOSED. ITA NO. 8/ASR./2018 SHAM LAL DU GGAL 9 2.3 THE ACCEPTANCE OF ASSESSEE'S REPLY REGARDING CO NTENTS OF ANNEXURE A10 (AS MENTIONED ABOVE IN PARA 2.2) IS AN ENDORSEMENT THAT THE ASSESSING OFFICER ACCEPTED ASSESSEE'S VERS ION. HENCE, WHILE MAKING THE ASSESSMENT, NO ADDITIONS WERE MADE OUT O F CONTENTS AT ANNEXURE A10. 3.1 THE ASSESSEE HAS ALREADY EXPLAINED POINT WISE I N REGARD TO ALL ALLEGATIONS, AS CONTAINED IN ASSESSING OFFICER'S OR DER OF ASSESSMENT AT PAGE 2 & PAGE 3. 3.2 YOUR OFFICE HAS ALREADY BEEN MADE AWARE OF WRON G ADDITIONS VIDE ASSESSEE'S REPLY DATED AUGUST 08, 2017 FOR ADD ITION NOT RELATING TO THIS PERIOD AND ADDITIONS ALREADY COVER ED IN VARIOUS HEADS TAKEN MULTIPLE TIMES. 4.1 IN REGARD TO PURPORTED ADDITION OF RS. 5 CRORE THE ASSESSEE PRAYS THAT: I) IT DOES NOT HAVE ANY VALIDITY ON ACCOUNT OF DEFI CIENCY REGARDING ACTUAL DOCUMENT OF TRADE, AS NO AGREEMENT FOR SALE OR REGISTRY OR PAYMENT RECEIPT OR BAYANA HAS BEEN CONF RONTED TO THE ASSESSEE. II) MERE STATEMENT OF A PARTY HAS BEEN MADE THE BAS IS OF ADDITIONS AND THIS STATEMENT ITSELF HAS NOT BEEN SH OWN TO THE ASSEESSEE OR THE UNDERSIGNED EITHER DURING THE ASSE SSMENT PROCEEDINGS OR AFTER YOUR REMAND TO THE ASSESSING O FFICER OR WHILE DRAFTING HER REPLY DATED 05-09-2017. III) THE IMPUGNED 'STATEMENT WHICH IS BEING MADE TH E SUBJECT MATTER OF ADDITIONS RELATES TO FINANCIAL YEAR 2011- 12 WHILE THE ASSESSMENT OF INCOME AGAINST THIS DOCUMENT HAS BEEN MADE DURING FINANCIAL YEAR 2007-08. 4.2 THE ASSESSEE PRAYS THAT THE BASELESS ADDITIONS OF RS. 5 LACS ON ACCOUNT OF ALLEGED TRADES OF RS. 5 CRORES AS MENTIO NED ABOVE BE DELETED ALONG WITH OTHER ILLEGAL ADDITIONS AS EXPLA INED IN ASSESSEE'S REPLY DATED 08-08-2017. ITA NO. 8/ASR./2018 SHAM LAL DU GGAL 10 10. THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSION S OF THE ASSESSEE SUSTAINED THE ADDITION OF RS.7,26,943/- BY OBSERVIN G IN PARAS 4.8 TO 4.10 OF THE IMPUGNED ORDER AS UNDER: 4.8 I HAVE CAREFULLY CONSIDERED THE MATERIAL AVAIL ABLE ON RECORD AND FIND THAT AO HAS REITERATED THE CONTENTIONS MAD E IN THE ASSESSMENT ORDER. THE APPELLANT HAS IN THE COUNTER COMMENTS ONCE AGAIN POINTED OUT THE MISTAKES IN THE ASSESSMENT OR DER. AFTER GOING THROUGH THE MATERIAL, I FIND FORCE IN THE CONTENTIO NS OF THE APPELLANT AS REGARDS THE TRANSACTIONS OF RS. 5 CRORES FOR HAD IABAD COLONY ARE CONCERNED AS NO DOCUMENT FOUND IN THE COURSE OF SURVEY COULD BE GIVEN TO THE APPELLANT EITHER AT THE STAGE OF AS SESSMENT OR IN THE COURSE OF REMAND PROCEEDINGS. FURTHER, AO HAS FAILE D TO POINT OUT ANY SPECIFIC DOCUMENTS OR PAPER ON THE BASIS OF WHI CH THIS ADDITION WAS MADE. AO HAS SIMPLY RELIED UPON AN EXTRACT OF T HE STATEMENT OF THE PARTY AT WHOSE PREMISES SURVEY WAS CONDUCTED FO R MAKING AN ADDITION IN THE HANDS OF THE APPELLANT. THE AO IN T HE COURSE OF REMAND PROCEEDINGS HAS ALSO FAILED TO POINT OUT ANY SPECIFIC DOCUMENT ON THE BASIS OF WHICH ADDITION HAS BEEN MA DE. THEREFORE, I HOLD THAT IN THE ABSENCE OF ANY SPECIFIC DOCUMENT .FOUND FROM THE PREMISES OF A PARTY WHERE SURVEY WAS CONDUCTED, AO WAS NOT JUSTIFIED IN MAKING AN ADDITION OF COMMISSION INCOM E IN THE HANDS OF THE APPELLANT ON THIS ACCOUNT. 4.9 FURTHER, I FIND FORCE IN THE CONTENTIONS OF THE APPELLANT THAT TRANSACTIONS OF 21 LACS AND OF RS. 37.20 LACS ARE P ART OF THE TOTAL TRANSACTIONS OF THE VALUE OF RS.89,01,107 AT ANNEXU RE A-3/13. HENCE, I HOLD THAT NO SEPARATE ADDITION IS CALLED F OR ON THESE TWO AMOUNTS. ACCORDINGLY, I HOLD THAT AO WAS NOT JUSTIF IED IN MAKING AN ADDITION OF COMMISSION INCOME ON ACCOUNT OF SALE OF RS. 58.20 LACS (RS. 21+37.20 LACS). 4.10 IN VIEW OF THE ABOVE DISCUSSION, I DELETE THE ADDITION OF COMMISSION INCOME OF RS. 5,08,200 (BASED ON THE SAL ES OF RS. 5 CRORES AND RS. 58.20 LACS) OUT OF THE TOTAL ADDITIO N OF RS.12,35,143 MADE BY THE AO ON THIS ACCOUNT. THE BALANCE ADDITIO N OF RS.7,26,943 MADE BY THE AO ON ACCOUNT OF COMMISSION INCOME EARNED BY THE APPELLANT FROM SALE OF PROPERTIES IS CONFIRMED. ITA NO. 8/ASR./2018 SHAM LAL DU GGAL 11 11. NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW A ND FURTHER SUBMITTED THAT NEITHER THE AO NOR THE LD. CIT(A) APPRECIATED THE F ACTS IN RIGHT PERSPECTIVE. IT WAS CONTENDED THAT THE FIGURES MENTIONED AT PAGE NO S. 3 & 4 CONSIDERED BY THE AO WERE RELATING TO THE ASSESSMENT YEARS 2006-07 WH ICH DID NOT PERTAIN TO THE PERIOD RELEVANT TO THE ASSESSMENT YEAR UNDER CONSID ERATION. SIMILARLY, THE FIGURES MENTIONED AT PAGE NOS. 9 & 10 WERE RELATING TO THE YEAR RUNNING FROM 2008 TO 2010 WHICH ALSO DID NOT PERTAIN TO THE PERI OD RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION AND THAT THE FIGURES AT PA GE NOS. 7 & 8 WERE STRUCK OFF. THEREFORE, THOSE COULD NOT HAVE BEEN CONSIDERED WHI LE WORKING OUT THE COMMISSION. IT WAS POINTED OUT THAT THE DOCUMENTS W ERE PROVIDED BY THE DEPARTMENT AND THE ENTRIES WERE STRUCK OFF WHICH CO ULD NOT HAVE BEEN CONSIDERED WHILE WORKING OUT THE FIGURES OF THE COM MISSION. IT WAS FURTHER SUBMITTED THAT THE ITEMS SHOWN AT PAGE NOS. 15 & 16 WERE ALREADY CONSIDERED IN THE FIGURES MENTIONED AT PAGE NOS. 17 & 18, SO THOS E SHOULD NOT HAVE BEEN ADDED AGAIN. IT WAS ALSO POINTED OUT THAT NO DATE W AS MENTIONED ON THE ENTRIES AT PAGE NOS. 5 & 6, SO THOSE DOCUMENTS WERE DUMB DO CUMENTS, SO COULD NOT HAVE BEEN CONSIDERED FOR THE YEAR UNDER CONSIDERATI ON. IT WAS POINTED OUT THAT THE LD. CIT(A) WHILE SUSTAINING THE ADDITIONS HAD N OT CONSIDERED THE AFORESAID VITAL FACTS AND SUSTAINED THE ADDITION WITHOUT PROP ER VERIFICATION. IT WAS POINTED OUT THAT THE ASSESSEE HAD DISCLOSED THE INCOME IN T HE REVISED RETURN. THEREFORE, NO FURTHER ADDITION COULD HAVE BEEN MADE. 12. IN HIS RIVAL SUBMISSIONS, THE LD. DR STRONGLY S UPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE DI SCREPANCY POINTED OUT BY THE LD. COUNSEL FOR THE ASSESSEE HAD ALREADY BEEN CONSI DERED BY THE LD. CIT(A) ITA NO. 8/ASR./2018 SHAM LAL DU GGAL 12 WHILE ALLOWING THE RELIEF TO THE ASSESSEE. THEREFOR E, NO FURTHER RELIEF IS TO BE ALLOWED. 13. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CA SE, IT IS NOTICED THAT THE FIGURES MENTIONED AT PAGE NOS. 5 & 4 WERE OF THE PE RIOD PRIOR TO 31.03.2007, SO DID NOT PERTAIN TO THE PERIOD RELEVANT TO THE ASSES SMENT YEAR UNDER CONSIDERATION. SIMILARLY, SOME OF THE FIGURES AT PA GE NOS. 9 & 10 WERE PERTAINING TO THE SUCCEEDING PERIOD AFTER 31.03.200 8. THEREFORE, THOSE FIGURES SHOULD NOT HAVE BEEN CONSIDERED WHILE WORKING OUT T HE COMMISSION FOR THE PERIOD RELEVANT TO THE YEAR UNDER CONSIDERATION BEC AUSE IT IS NOT THE CASE OF THE DEPARTMENT THAT THE TRANSACTIONS WERE MATERIALIZED DURING THE YEAR UNDER CONSIDERATION. IT IS ALSO NOTICED THAT THE FIGURES AT PAGE NOS. 7 & 8 WERE STRUCK OFF IN THE DOCUMENT WHICH WAS PROVIDED BY THE DEPAR TMENT TO THE ASSESSEE, SO THOSE FIGURES CANNOT BE CONSIDERED WHILE WORKING OU T THE COMMISSION EARNED BY THE ASSESSEE. IN MY OPINION, THE FIGURES WHICH A RE UNDATED ALSO CANNOT BE CONSIDERED FOR THE YEAR UNDER CONSIDERATION, PARTIC ULARLY WHEN THERE IS NO EVIDENCE ON RECORD TO SUBSTANTIATE THAT THOSE PERTA INED TO THE PERIOD RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION. I, THEREFO RE, CONSIDERING THE TOTALITY OF THE FACTS, DEEM IT APPROPRIATE TO SET ASIDE THIS IS SUE BACK TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH BY KEEPING IN VIEW THIS PROPOSITION THAT THOSE FIGURES WHICH DO NOT PERTAIN TO THE PERIOD RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION MAY NOT BE CONSIDERED FOR WORKING OUT THE COMMISSION EARNED BY THE ASSESSEE AND SIMILARLY, THE DUMB DOCUMENTS SHAL L ALSO NOT BE CONSIDERED UNTIL AND UNLESS THERE IS SOME SPECIFIC EVIDENCE TO SUBSTANTIATE THAT IT PERTAINS TO THE YEAR UNDER CONSIDERATION. ACCORDINGLY, THIS ISS UE IS SET ASIDE TO THE FILE OF THE LD. CIT(A). ITA NO. 8/ASR./2018 SHAM LAL DU GGAL 13 14. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT ON 16/01/2019) SD/- (N. K. SAINI) VICE PRESIDENT DATED: 16/01/2019 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR