Sh. Suresh Singla, Panchkula V. ACIT, Chandigarh

ITA 1045/CHANDI/2013

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6401 (ITAT-CHANDIGARH)
• Duration Of Justice: 5 year(s) 8 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 17-07-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 14-11-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: G S PHANI KISHORECIT
• Keywords: Unexplained cash credit; Unexplained investment; Unexplained expenditure; Gift; Loose papers; Document seized; Additional evidence; Onus to prove; Retraction; Documents seized; Set aside
• Section: 69C; 143(3); 153A; 234B; 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH B , CHANDIGARH , ! ' # $ % & ' ( , ' BEFORE SMT.DIVA SINGH, JUDICIAL MEMBER AND SMT.ANNAPURNA GUPTA, ACCOUNTANT MEMBER ./ ITA NO.1045/CHD/2013 / ASSESSMENT YEAR : 2009-10 SHRI SURESH SINGLA, # 1332, SECTOR 4, PANCHKULA. THE A.C.I.T., CENTRAL CIRCLE-II, CHANDIGARH. ./PAN NO: ABUPC8259J /APPELLANT /RESPONDENT /ASSESSEE BY: SHRI TEJ MOHAN SINGH, ADV. ! / REVENUE BY: SHRI G.S.PHANI KISHORE,CIT DR) ' # $ /DATE OF HEARING : 17.07.2019 %&'( $ /DATE OF PRONOUNCEMENT: 31.07.2019 /ORDER PER ANNAPURNA GUPTA, ACCOUNTANT MEMBER : THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGA INST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)(CENTRAL), GURGAON [(IN SHORT CIT(A)] DA TED 25.9.2013, PASSED U/S 250(6) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS ACT). ITA NO.1045/CHD/2013 A.Y. 2009-10 2 2. BRIEF FACTS RELATING TO THE CASE ARE THAT A SEAR CH U/S 132(1) OF THE ACT WAS CONDUCTED ON 16.1.2009 AT THE RESIDENCES AND OFFICES OF THE INDIVIDUALS AND GROUP CONCERNS OF M/S A.P. SHRESTHA (GOYAL) GROUP, WHICH INCLUDED THE ASSESSEE ALSO. THE ASSESSEE WAS ENGAGED IN THE BUSI NESS OF PROPERTY CONSULTANT AND EARNED COMMISSION INCOME BE SIDES LONG TERM CAPITAL GAINS. POST SEARCH ACTION, ASSESS MENT WAS FRAMED ON THE ASSESSEE U/S 153A READ WITH SECTI ON 143(3) OF THE ACT FOR THE IMPUGNED YEAR, MAKING V ARIOUS ADDITIONS ON ACCOUNT OF UNEXPLAINED CASH CREDIT AND UNEXPLAINED EXPENDITURE. 3. THE ASSESSEE FILED AN APPEAL TO THE CIT(A), WHO IN TURN UPHELD THE ORDER OF THE AO. 4. AGGRIEVED BY THE SAME, THE ASSESSEE HAS NOW COME UP IN APPEAL BEFORE US. 5. GROUND NOS.1 AND 2, IT WAS POINTED OUT, WERE INTERRELATED . THE SAME READ AS UNDER: 1. THAT THE LD. COMMISSIONER OF INCOME TAX(APPEALS) HA S ERRED IN LAW AS WELL AS ON FACTS IN UPHOLDING THE ADDITIO N OF RS.20,00,000/- MADE ON THE BASIS OF CERTAIN FIGURES MENTIONED ON PAGE 2 OF ANNEXURE A-5 APPLYING THE PROVISIONS O F SECTION 68 OF THE ACT WHICH IS ARBITRARY AND UNJUSTIFIED. ITA NO.1045/CHD/2013 A.Y. 2009-10 3 2. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) H AS ERRED IN UPHOLDING THE INVOCATION OF THE PROVISIONS OF SECTI ON 68 IN AS MUCH AS THE POCKET DIARY IN NOT A BOOK OF ACCOUNT W HICH CAN BE MADE THE BASIS FOR MAKING OF AN ADDITION OF CASH CREDIT AND AS SUCH THE ADDITION UPHELD ISARBITRARY AND UNJ USTIFIED. 6. IN THE ABOVE GROUNDS THE ASSESSEE HAS CHALLENGED THE ACTION OF THE LD.CIT(A) IN UPHOLDING THE ADDITION M ADE OF RS.20 LACS ON ACCOUNT OF AN ENTRY NOTED IN A DOCUME NT, ANNEXURE A-5 ,BY APPLYING THE PROVISIONS OF SECTION 68 OF THE ACT. 7. BRIEF FACTS RELATING TO THE ISSUE ARE THAT A DIA RY WAS SEIZED FROM THE RESIDENCE OF THE ASSESSEE, REFERRED TO AS DOCUMENT A-5. ON PAGE 2 OF THIS DIARY THE AO NOTED, WAS WRITTEN 2000 PROFIT BALANCE AFTER MARRIAGE CHITRA . HE FURTHER NOTED THAT IN THE STATEMENT RECORDED OF THE ASSESSEE ON 21.1.2009 HE WAS ASKED ABOUT THE SAME TO WHICH T HE ASSESSEE REPLIED THAT IT RELATED TO RS.20 LACS AMOU NT SAVED AFTER THE MARRIAGE OF CHITRA. THE AO THEREAFTER ASK ED THE ASSESSEE TO FILE HIS EXPLANATION REGARDING THE MARR IAGE OF CHITTRA AND PROFIT OF RS.20 LACS, TO WHICH THE ASSE SSEE FILED DETAILED EXPLANATION BRINGING OUT THE RELATIONSHIP OF CHITRA TO HIM AS BEING DAUGHTER OF HIS BROTHER-IN-LAW, WHO SE MARRIAGE HE HAD SOLEMNIZED SINCE BOTH HER PARENTS H AD DIED 20 YEARS AGO AND THE AMOUNT DEPICTED THE BALANCE RE MAINING ITA NO.1045/CHD/2013 A.Y. 2009-10 4 OUT OF SHAGUN COLLECTED AND AFTER INCURRING EXPENSE S DURING HER MARRIAGE. THE AO FURTHER NOTED THAT WHEN THE AS SESSEES ATTENTION WAS DRAWN TO THE STATEMENT GIVEN DURING S EARCH, ON 21.1.2009, THE ASSESSEE REPLIED BY STATING THAT RS.20 LACS REFLECTED HIS COMMISSION INCOME EARNED DURING THE YEAR WHICH WAS REFLECTED IN HIS RETURN OF INCOME. THE AO THEREAFTER NOTED THAT THE REPLIES OF THE ASSESSEE W ERE CONTRADICTORY AND HELD THAT SINCE THE ASSESSEE IN H IS STATEMENT HAD ADMITTED THE AMOUNT AS REPRESENTING T HAT SAVED AFTER MARRIAGE OF CHITRA FROM ALL SOURCES AND SINCE THE ASSESSEE HAD NOT FILED DETAILS OF MARRIAGE EXPENSES AND THE SOURCES FROM WHICH THEY WERE MET, THE AMOUNT OF RS. 20 LACS WAS ADDED AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT. 8. BEFORE THE LD.CIT(A) THE ASSESSEE REITERATED HIS CONTENTIONS, AFTER CONSIDERING WHICH THE LD.CIT(A) UPHELD THE ORDER OF THE AO HOLDING AT PARA 5.3 OF HIS ORDE R AS UNDER: 5.3. I HAVE CONSIDERED THE SUBMISSIONS OF THE ASSES SEE AND THE IMPUGNED ORDER. THE DAIRY A-5 WAS SEIZED FROM T HE RESIDENCE. OWNERSHIP IS NOT IN DISPUTE. PAGE 2 OF T HE DIARY WAS STATED TO BE RS. 20 LAKHS SAVED AFTER THE MARRI AGE OF 'CHITRA'. THIS STATEMENT U/S 132(4) WAS LATER CHANG ED TO EARNINGS FROM COMMISSION DURING AY 2009-10 AND DULY REFLECTED IN THE RETURN. A SCANNED COPY IS PLACED A T PAGE TWO OF THE IMPUGNED ORDER. ON THE OTHER HAND THE ASSESS EE HAS CONTENDED THAT THE DIARY DID NOT CONSTITUTE BOOKS O F ITA NO.1045/CHD/2013 A.Y. 2009-10 5 ACCOUNTS SO AS TO BE HIT BY SECTION 68. IT WAS ALSO ARGUED THAT THE ADDITION WAS MADE SOLELY ON THE GROUND THA T THERE HAD BEEN CONTRADICTORY STATEMENTS AND THAT THE FIGU RES WERE PETTY EXPENSES. ON A PERUSAL OF THE SCANNED COPY IT IS EVIDENT THAT AGAINST THE FIGURE 20.0 0 THE NARRATION IS PROFIT B ALANCE AFTER MARRIAGE CHITRA. THE MARRIAGE OF CHITRA IS NO T IN DISPUTE. ON THE SAME PAGE THERE ARE SOME OTHER FIGU RES VIZ. 2.50 'BUA' 3.75 'MAA 1.85' JONY' HENCE IT IS VERY CLEAR THAT THE FIGURE IS RELATING TO MARRIAGE. THE CONTEN TION THAT THE FIGURES ARE PETTY EXPENSES CANNOT BE GIVEN CRED ENCE AS 3.75 'MAA' CANNOT BY ANY STRETCH OF IMAGINATION BE SAID TO BE RS.375/- ONLY. THE ARGUMENT THAT THE DIARY DOES NOT CONSTITUTE BOO KS IS ALSO NOT TENABLE. THE HON'BLE HIGH COURT OF DE LHI IN THE CASE OF CIT VS SONAL CONSTRUCTIONS, 260 CTR 377 [20 13] HAS HELD AT PARA 16 THAT IT IS NOT NECESSARY THAT THE S EIZED DOCUMENTS SHOULD BE IN THE FORM OF PROPER BOOKS OF ACCOUNTS SO THAT THEY CAN BE RELIED UPON FOR THE PURPOSE OF MAKING ADDITIONS. THEY COULD BE IN ANY FORM, INCLUDING LOO SE PAPERS ON WHICH NOTINGS OR SCRIBBLINGS HAVE BEEN MADE. MOR EOVER, IF ASSESSES CHANGES HIS EXPLANATORY STATEMENT AT A LAT ER STAGE, THEN HE HAS THE EXTRA BURDEN OF SUBSTANTIATI NG THE SAME. THUS CONSIDERING THE AFORESAID AND IN THE ABS ENCE OF ASSESSEE SATISFACTORILY CLARIFYING THE POSITION, I AM INCLINED TO HOLD THAT THERE IS NO INFIRMITY IN THE STAND OF THE AO. HENCE, THE ADDITION OF RS. 20,00,000/- IS SUSTAINED . 9. BEFORE US THE LD.COUNSEL FOR THE ASSESSEE CONTEN DED THAT THE ADDITION MADE WAS NOT JUSTIFIED SINCE TIME AND AGAIN IT HAD BEEN SUBMITTED TO THE REVENUE AUTHORIT IES THAT THE AMOUNT OF RS.20 LACS REPRESENTED THE SAVINGS MA DE AFTER SOLEMNIZATION OF MARRIAGE OF CHITRA AND WHICH HAD B EEN ACCEPTED BY THE REVENUE AUTHORITIES ALSO AND SUCH R ECEIPTS WERE NOT IN THE NATURE OF INCOME. THE LD.COUNSEL FO R THE ASSESSEE FURTHER CONTENDED THAT THERE WAS NO BASIS FOR ITA NO.1045/CHD/2013 A.Y. 2009-10 6 TREATING THE AMOUNT MENTIONED AS TWO THOUSANDS AS R S.20 LACS. IT WAS FURTHER CONTENDED THAT NO CORROBORATIV E EVIDENCE IN THE FORM OF CASH OR OTHERWISE WAS FOUND DURING SEARCH FOR THE ALLEGED SURPLUS CASH WITH THE ASSESS EE. IT WAS CONTENDED THAT THE ADDITION MADE NEEDED TO BE DELET ED. 10. THE LD. DR REBUTTED BY POINTING OUT THAT THE AS SESSEE HIMSELF IN HIS STATEMENT RECORDED ON 21.1.2009 WHEN ASKED TO EXPLAIN RS.20 WRITTEN IN ANNEXURE-5, HAS RESPOND ED BY SAYING THAT THIS WAS RS.20 LACS SAVED AFTER THE MAR RIAGE OF CHITRA. HE, THEREFORE, STATED THAT IT WAS THE ASSES SEES OWN ADMISSION OF THE FIGURE REPRESENTING RS.20 LACS AND NOT A FIGMENT OF IMAGINATION OF THE REVENUE. THE LD. DR F URTHER STATED THAT THE ASSESSEES CONTINUOUS INCONSISTENT STAND VIS-A-VIS THIS ISSUE JUSTIFIED THE ADDITION. THE LD . DR CONTENDED THAT WHEN THE STATEMENT WAS RECORDED AFTE R SEARCH AND IN VARIOUS LETTERS SUBMITTED DURING ASSE SSMENT PROCEEDINGS, THE ASSESSEE HAD STATED THE AMOUNT TO REPRESENT THE SAVING AFTER THE MARRIAGE OF CHITRA, LATER ON THE ASSESSEE HAD RETRACTED WHEN CONFRONTED WITH HIS STATEMENT MADE ON 21.1.2009 BY STATING THAT THE SAM E REPRESENTED THE COMMISSION INCOME EARNED BY HIM AND IT WAS DULY DISCLOSED IN HIS RETURN OF INCOME. THE LD. DR, ITA NO.1045/CHD/2013 A.Y. 2009-10 7 THEREFORE, CONTENDED THAT THIS INCONSISTENCY IN THE STAND OF THE ASSESSEE SHOWED THAT HE WAS HIDING SOMETHING FR OM THE REVENUE AUTHORITIES AND, THEREFORE, JUSTIFIED THE A DDITION MADE. 11. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW. THE ISSUE RELATES TO ADDITION MADE ON ACCOUNT OF NOTINGS IN THE DOCUMENT ANNEXURE A-5 OF FIGURE 2000 WITH THE NARRATION AGAINST IT PROFI T BALANCE AFTER MARRIAGE CHITRA. THE ASSESSEE HAD CONTENDED THAT THESE WERE THE SURPLUS REMAINING FROM SHAGUN AND OT HER COLLECTIONS DURING MARRIAGE OF HIS BROTHER-IN-LAWS DAUGHTER CHITRA. THE FACT OF MARRIAGE OF CHITRA AND THAT THE FIGURES RELATED TO THE MARRIAGE OF CHITRA HAS, WE FIND, BEE N ACCEPTED BY THE CIT(A), WHICH FINDS MENTION IN HIS FINDINGS AT PARA 5.3 OF THE ORDER REPRODUCED ABOVE WHEREIN THE LD.CI T(A) HAS CATEGORICALLY STATED THAT IT IS VERY CLEAR THAT THE FIGURE IS RELATING TO MARRIAGE . HAVING ACCEPTED THAT THE AMOUNT REPRESENTED SURPLUS COLLECTIONS BY WAY OF SHAGUN, E TC. ON THE OCCASION OF MARRIAGE OF CHITRA, WE FAIL TO UNDE RSTAND HOW THE SAME CAN BE TREATED TO BE IN THE NATURE OF INCOME OF THE ASSESSEE. THE AMOUNTS COLLECTED BY WAY OF GIFTS ON THE OCCASION OF MARRIAGE DO NOT PARTAKE THE CHARACTER O F INCOME. ITA NO.1045/CHD/2013 A.Y. 2009-10 8 THE CONTENTION OF THE REVENUE BEFORE US THAT THE AD DITION WAS WARRANTED ON ACCOUNT OF THE INCONSISTENT STAND OF THE ASSESSEE CLAIMING THE AMOUNT TO REPRESENT THE RECEI PTS ON THE OCCASION OF MARRIAGE AND SUBSEQUENTLY CLAIMING IT TO BE HIS COMMISSION INCOME, DOES NOT IN OUR VIEW ALTER O R MAKE ANY DIFFERENCE TO OUR FINDINGS ABOVE. THE REASON BE ING THAT FIRSTLY ,BEFORE US, THE ASSESSEE HAS ACCEPTED THAT THE AMOUNT REPRESENTED THE COLLECTIONS FROM MARRIAGE, WHICH IS CORROBORATED BY THE CONTENTS OF THE NOTINGS ALSO, THEREFORE, HIS OTHER STAND TAKEN SUBSEQUENTLY IS IRRELEVANT. A LSO MERELY BECAUSE THE ASSESSEE IS INCONSISTENT IN HIS EXPLANATION DOES NOT IFSO FACTO AND ON ITS OWN ALONE LEAD TO THE CONCLUSION THAT A PARTICULAR NOTING REPRESENTS THE INCOME OF THE ASSESSEE. THERE HAS TO BE SOME MATERI AL ON RECORD, MORE IMPORTANTLY, IN THE ABSENCE OF ANY EXP LANATION BY THE ASSESSEE, TO FORM THE BASIS OF MAKING THE AD DITION. WE, THEREFORE, DO NOT FIND ANY MERIT IN THE ARGUMEN TS OF THE REVENUE. IN VIEW OF THE ABOVE, WE SET ASIDE THE ORDER OF THE LD.CIT(A) HOLDING THE AMOUNT OF RS.20 LACS IN DOCUM ENT A-5 AS THE INCOME OF THE ASSESSEE DIRECTING DELETION OF THE ADDITION SO MADE. ITA NO.1045/CHD/2013 A.Y. 2009-10 9 THE GROUNDS OF APPEAL NOS.1 AND 2 RAISED BY THE ASSESSEE ARE, THEREFORE, ALLOWED. 12. GROUND NO.3 RAISED BY THE ASSESSEE READS AS UND ER: 1. THAT THE LD. COMMISSIONER OF INCOME TAX(APPEALS) HA S FURTHER ERRED IN LAW AS WELL AS ON FACTS IN UPHOLDI NG THE ADDITION OF RS.71,600/- MADE ON THE BASIS OF CERTAI N FIGURES MENTIONED ON ANNEXURE A-4 APPLYING THE PROV ISIONS OF SECTION 68 OF THE ACT WHICH IS ARBITRARY AND UNJ USTIFIED. 13. THE ISSUE RAISED IN THE ABOVE GROUND RELATES TO ADDITION MADE ON ACCOUNT OF NOTING IN DOCUMENT A-4. THE CONTENTS OF THE SAME ON THE BASIS OF WHICH ADDITION WAS MADE ARE AS UNDER: 515=00 MUKESH L.G. 100=00 SURESH PATIAA 17.12.2008 1=40 RAVI 17.12.2008 100=00 FROM JIWAN 17.12.2008 14. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS ASKED TO EXPLAIN THE SAME. HE STATED THAT THE SAME PERTAINED TO HOUSEHOLD EXPENSES INCURRED ON 17.12.2 008. WITH RS.550/- BEING INCURRED ON TV REPAIR, RS.100/- GIVEN TO ONE SHRI SURESH PATIALA, RS.140 GIVEN TO RAVI AN D RS.100 GIVEN TO JIWAN. THE AO REJECTED THE EXPLANATION OF THE ASSESSEE FOR THE REASON THAT IN HIS STATEMENT MADE ON 21.1.2009 THE ASSESSEE HAD SUBMITTED THAT THE DIARY ITA NO.1045/CHD/2013 A.Y. 2009-10 10 CONTAINED DETAILS OF INVESTMENT MADE BY HIM WRITTEN IN SMALL ALPHABETS AND NUMERALS. HE, THEREFORE, MULTIP LIED THE SAID FIGURE BY 100 BRINGING THE TOTAL SUM OF THE PA GE TO RS.71,600/- ADDING BACK THE SAME TO THE INCOME OF T HE ASSESSEE AS UNEXPLAINED CASH CREDIT U/S 68 OF THE A CT. THE LD.CIT(A) UPHELD THE ORDER OF THE AO. 15. BEFORE US THE LD.COUNSEL FOR THE ASSESSEE CONTE NDED THAT DUE EXPLANATION HAD BEEN GIVEN OF THE FIGURES AS REPRESENTING HIS HOUSEHOLD EXPENSES TIME AND AGAIN AND HE FURTHER CONTENDED THAT THERE WAS NO BASIS FOR MULTI PLYING THE FIGURES BY 100. 16. THE LD. DR, ON THE OTHER HAND, STATED THAT THE ASSESSEE IN HIS OWN STATEMENT HAD ADMITTED TO THE F ACT THAT THE FIGURE OF 20 MENTIONED IN DOCUMENT A-5 WAS IN F ACT RS.20 LACS AND BY HIS OWN ADMISSION THE FIGURES WER E MENTIONED IN DOCUMENT A-5 WERE WRITTEN IN SMALL ALP HABETS AND NUMERALS. ACCORDINGLY, THE LD. DR JUSTIFIED THE ACTION OF THE AO IN MULTIPLYING THE FIGURES WITH 100. THE LD. DR FURTHER RELIED UPON THE ORDERS OF THE AUTHORITIES B ELOW POINTING OUT THEREFROM THAT THE ADDITION WAS JUSTIF IED FOR THE REASON THAT THE ASSESSEE HAD HIMSELF ADMITTED IN HI S STATEMENT RECORDED ON 21.1.2009 THAT THE CONTENTS O F ITA NO.1045/CHD/2013 A.Y. 2009-10 11 DOCUMENT A-4 WERE DETAILS OF INVESTMENT MADE BY HIM AND IF HE NOW WISHED TO RETRACT THE SAME THE ONUS TO PROVE THE RETRACTION LAY COMPLETELY ON THE ASSESSEE WHICH HAD NOT BEEN DONE IN THE PRESENT CASE. 17. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE CA REFULLY GONE THROUGH THE DOCUMENTS AND SUBMISSIONS REFERRED TO BEFORE US. IT IS NOT DISPUTED THAT THE ADDITION HAS BEEN MADE ON ACCOUNT OF NOTINGS IN A DOCUMENT, ANNEXURE A-4, AS REPRODUCED ABOVE. THE REVENUE, WE FIND, HAS HEAV ILY RELIED UPON THE SUBMISSIONS MADE BY THE ASSESSEE ON 21.1.2009 FOR MAKING THE ADDITION STATING THAT THE ASSESSEE IN HIS STATEMENT HAD ADMITTED TO THE FACT THAT THE NOTINGS IN THE IMPUGNED DOCUMENT RELATED TO THE INVESTMENT MAD E BY HIM IN SMALL ALPHABETS AND NUMERALS. WE HAVE GONE T HROUGH THE STATEMENT RECORDED BY THE ASSESSEE ON 21.1.2009 , COPY OF WHICH WAS FILED BEFORE US IN THE PAPER BOOK FILE D BY THE ASSESSEE AT PAGE NOS.5 TO 9. ON GOING THROUGH THE S AME WE FIND THAT THE RELEVANT QUESTION ON THE BASIS OF WHI CH THE REVENUE HAS BUILT ITS CASE IS QUESTION NO.6 AND RES PONSE OF THE ASSESSEE TO THE SAME WHICH IS REPRODUCED HEREUN DER : 6. TELL US ABOUT RS.20 WRITTEN IN ANNEXURE-5 PAGE-1 OF SEIZED DOCUMENTS? ITA NO.1045/CHD/2013 A.Y. 2009-10 12 R. THIS IS RS.20 LAKHS AS SAVED AMOUNT AFTER THE MARRIAGE OF CHITRA FROM ALL SOURCES WRITTEN IN SMALL DIARY AND IS FURTHER ROTATED AS INVESTMENTS WITH VARIOUS INDIVIDUALS WRITTEN IN SMALL ALPHABETS AND NUMERALS IN MY OTHER SEIZED TWO DIARIES AND REST OF THE AMOUNT WRITTEN IS AGAINST HOUSEHOLD DAILY EXPENSES WHICH MY WIFE AND CHILDREN USED TO INCUR ON DAILY BASIS. 18. ON GOING THROUGH THE SAME A VITAL FACT WHICH EM ERGES IS THAT THE QUESTION RAISED TO THE ASSESSEE WAS VIS --VIS THE NOTING IN DOCUMENT A-5 AND NOT DOCUMENT A-4, ON THE BASIS OF WHICH THE ADDITION HAS BEEN MADE IN THE PRESENT CASE. THE REPLY OF THE ASSESSEE ALSO IS ACCORDINGLY ON TH E NOTINGS IN DOCUMENT A-5 AND A PERUSAL OF THE SAME REVEALS T HAT THE ASSESSEE HAD EXPLAINED THE NOTINGS IN DOCUMENT A-5 AS BEING RS.20 REPRESENTING RS.20 LACS SAVED AFTER THE MARRIAGE OF CHITRA AND WHICH AMOUNT WAS FURTHER INVESTED WIT H VARIOUS INDIVIDUALS WRITTEN IN SMALL ALPHABETS AND NUMERALS IN OTHER SEIZED DIARIES AND THE REST OF THE AMOUNT IS AGAINST THE HOUSEHOLD DAILY EXPENSES. THIS STATEMENT, WE FI ND, IS A GENERAL STATEMENT ABOUT THE NOTINGS IN THE OTHER DI ARIES AND STATES THAT THE NOTINGS IN OTHER DIARIES REPRESENTS BOTH THE INVESTMENTS AND HOUSEHOLD EXPENSES. THE ASSESSEE HA S ATTRIBUTED THE NOTINGS IN DOCUMENT A-4 TO BE REPRES ENTING HOUSEHOLD EXPENSES WHILE THE REVENUE HAS TREATED TH EM AS INVESTMENT. WE FIND THAT THE ONLY REASON FOR THE RE VENUE FOR ITA NO.1045/CHD/2013 A.Y. 2009-10 13 TREATING THE SAME AS INVESTMENT IS THE STATEMENT G IVEN BY THE ASSESSEE AS REPRODUCED ABOVE. BUT AS NOTED ABOV E, THE STATEMENT DOES NOT SAY THAT THE NOTINGS IN OTHER DI ARIES REPRESENTS ONLY THE INVESTMENT MADE BY THE ASSESSEE . THE ASSESSEE HAS STATED THAT THEY ALSO REPRESENTS HOUSE HOLD EXPENSES. THEREFORE, THIS INTERPRETATION OF THE REV ENUE IS BASED ON INCORRECT APPRECIATION OF THE FACTS; MOREO VER EVEN IF THE SAID FIGURES ARE SAID TO REPRESENT THE INVES TMENT MADE BY THE ASSESSEE, THE STATEMENT ITSELF CLEARLY BRING S OUT THE SOURCE OF THE INVESTMENT AS BEING MADE FROM THE SAV INGS OF RS.20 LACS AFTER THE MARRIAGE OF CHITRA. THIS SUM O F RS.20 LACS, WE HAVE HELD IN GROUND NO.1 & 2 ABOVE TO BE N OT IN THE NATURE OF THE INCOME OF THE ASSESSEE. FURTHER THE S OURCE HAVING STOOD EXPLAINED, WE SEE NO REASON FOR MAKING THE ADDITION OF THE SAME ON THE GROUND OF UNEXPLAINED INVESTMENT MADE BY THE ASSESSEE. CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTANC ES OF THE CASE, THEREFORE, WE HOLD THAT THE ADDITION MADE ON ACCOUNT OF NOTINGS IN DOCUMENT A-4 DESERVES TO BE D ELETED. GROUND OF APPEAL NO.3 RAISED BY THE ASSESSEE IS ACCORDINGLY ALLOWED. ITA NO.1045/CHD/2013 A.Y. 2009-10 14 19. GROUND NO.4 RAISED BY THE ASSESSEE READS AS UND ER: 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) H AS ERRED IN UPHOLDING THE INVOCATION OF THE PROVISIONS OF SE CTION 68 IN AS MUCH AS THE POCKET DIARY IN NOT A BOOK OF ACCOUN T WHICH CAN BE MADE THE BASIS FOR MAKING OF AN ADDITION OF CASH CREDIT AND AS SUCH THE ADDITION UPHELD IS ARBITRARY AND UNJUSTIFIED. 20. THE ABOVE GROUND WAS NOT PRESSED BEFORE US AND THE SAME IS TREATED AS DISMISSED. 21. GROUND NOS.5, 6 AND 7 RAISED BY THE ASSESSEE, I T WAS CONTENDED WERE INTER-RELATED BEING RAISED ON ACCOUN T OF ADDITION MADE ON NOTINGS MADE IN ANNEXURE A-6. THE SAID GROUNDS RAISED AS UNDER: 5.THAT THE LD. COMMISSIONER OF INCOME TAX(APPEALS) HAS ERRED IN LAW AS WELL AS ON FACTS IN UPHOLDING THE A DDITION OF RS.20,65,692/- MADE ON THE BASIS OF CERTAIN FIGURES MENTIONED ON PAGES 16-34 OF ANNEXURE A-6 APPLYING T HE PROVISIONS OF SECTION 69- C OF THE ACT WHICH IS ARB ITRARY AND UNJUSTIFIED. 6. THAT THE LD. COMMISSIONER OF INCOME TAX(APPEALS) HAS FURTHER ERRED IN REJECTING THE APPLICATION FOR ADMI SSION OF ADDITIONAL EVIDENCE WHICH IS ARBITRARY AND UNJUSTIF IED. 7. THAT THE LD. COMMISSIONER OF INCOME TAX(APPEALS) HAS FAILED TO CONSIDER THE CONTENTION OF THE ASSESSEE THAT THE RE WAS A DOUBLE ADDITION OF RS.8,05,677/- IN AS MUCH AS SAME ENTRIES APPEARING ON TWO DIFFERENT DOCUMENTS HAVE BEEN ADDE D TWICE OVER WHICH IS ARBITRARY AND UNJUSTIFIED 22. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT IN THE COURSE OF SEARCH CERTAIN DOCUMENTS WERE FOUND. ANNE XURE A- 6 PAGE 16 TO 34 CONTAINED BILLS OF EXPENSES OF HOUS EHOLD ITA NO.1045/CHD/2013 A.Y. 2009-10 15 GOODS. THE ASSESSEE VIDE QUESTIONNAIRE DATED 26.11. 2010 WAS ASKED TO EXPLAIN THE SOURCES OF THESE EXPENSES. THE ASSESSEE FAILED TO EXPLAIN THE SOURCES OF EXPENSES OF RS.20,65,692/-, THE DETAILS OF WHICH ARE GIVEN AS U NDER: SR.NO. PAGE NO. NAME OF THE PARTY DESCRIPTION ITEM DATE AMOUNT 1. 16 POOJA SAREE SAREE 6.6.2008 8600 2. 17 DIPIRA SAREE SUIT & SAREE 6.6.2008 11295 3. 18 -DO- -DO- 6.6.2008 12915 4. 19 -DO- -DO- 6.6.2008 12665 7. 23 JEWELLERY 12.12.2008 653845 11. 35 -DO- 16.7.2008 296195 12. 25 & 26 -DO- 12.12.2008 177000 13. 27 -DO- 12.12.2008 22059 14. 28 -DO- 60000 15. 29 -DO- 624500 16. 32 -DO- 186618 TOTAL 20,65,692/- 23. THE ASSESSEE EXPLAINED THAT BILLS AT PAGE NOS.2 5 & 26 BELONGED TO HIS DAUGHTER, PAGE NO.28 BELONGED TO AARTI, HIS DAUGHTER, PAGE NO.35 WAS A ESTIMATE, PAG E NO.29 BELONGED TO SMT.SUMAN AND AARTI. HOWEVER, THE ASSESSEE HAD FAILED TO FURNISH ANY EVIDENCE THAT TH ESE EXPENSES WERE ACTUALLY INCURRED BY HIS DAUGHTERS. A S THE ASSESSEE HAD FAILED TO EXPLAIN THE SOURCES OF T HESE EXPENSES, IT WAS HELD THAT THE ASSESSEE HAD INCURRE D THESE EXPENSES FROM UNDISCLOSED SOURCES. THEREFORE, THE AO TREATED THE EXPENSES OF RS.20,65,692/- AS UNEXPLAINED EXPENDITURE U/S 69C OF THE ACT. ITA NO.1045/CHD/2013 A.Y. 2009-10 16 24. BEFORE THE LD.CIT(A) THE ASSESSEE REQUESTED FOR ADMISSION OF ADDITIONAL EVIDENCE IN THE FORM OF TWO AFFIDAVITS OF THE DAUGHTER OF THE ASSESSEE AND OF T HE SON-IN-LAW OF THE ASSESSEE STATING ON OATH THAT TH E BILLS FOUND DURING THE COURSE OF SEARCH AND FORMING PART OF ANNEXURE A-6, BELONGED TO THEM AND THAT THE Y WERE REGULAR INCOME TAX ASSESSEES. THE ASSESSEE HAD ALSO FILED COPIES OF INCOME TAX RETURNS OF THE SAID TWO PERSONS. THE LD. CIT(A) REFUSED TO ADMIT THE SAME STATING THAT THE ASSESSEE HAD GIVEN NO REASON AS TO WHY THE SAME WERE NOT FILED BEFORE THE AO. THEREAF TER THE LD.CIT(A) UPHELD THE ADDITION MADE BY THE AO IN THE ABSENCE OF ANY EVIDENCE FILED BY THE ASSESSEE T O SATISFACTORILY EXPLAIN THE SOURCE OF THE EXPENDITUR E INCURRED ON ACCOUNT OF THE SAID BILLS. 25. BEFORE US THE LD.COUNSEL FOR THE ASSESSEE CONTENDED THAT THE ACT OF THE LD.CIT(A) IN REFUSING TO ADMIT THE ADDITIONAL EVIDENCES WAS NOT AS PER LAW. THE LD.COUNSEL FOR THE ASSESSEE CONTENDED THAT THE INCO ME TAX RETURNS FILED AS ADDITIONAL EVIDENCES OF THE DAUGHTER AND SON-IN-LAW OF THE ASSESSEE WERE IN FAC T, PART OF THE RECORD OF THE DEPARTMENT ITSELF AND WER E ITA NO.1045/CHD/2013 A.Y. 2009-10 17 NOT IN THE NATURE OF ADDITIONAL EVIDENCES AT ALL. H E FURTHER STATED THAT THE CONTENTION OF THE ASSESSEE ALL ALONG WAS THAT THE BILLS RELATED TO PURCHASES MADE BY HIS DAUGHTER AND SON-IN-LAW, WHICH HE SUBSTANTIATED BY WAY OF AFFIDAVITS AND, THEREFORE, EVEN AFFIDAVIT WAS NOT IN THE NATURE OF ADDITIONAL EVIDENCE BUT WAS ON LY A CLARIFICATORY EVIDENCE. HE FURTHER STATED THAT ON 16.12.2010, THE ASSESSEE HAD FILED REPLY TO THE AO STATING THAT THE DOCUMENTS REFERRED TO IN ANNEXURE A- 6, PAGES 16 TO 34 WERE BILLS OF SARIS PURCHASED BY HIS DAUGHTER, COPY OF THE LETTER WAS PLACED BEFORE US I N THE PAPER BOOK AT PAGE 10 AND OUR ANT WAS DRAWN TO THE SAME. THE LD.COUNSEL FOR THE ASSESSEE CONTENDED THAT THE AO WITHOUT GIVING ANY FURTHER OPPORTUNITY PASSED THE ASSESSMENT ORDER ON 31.12.2010 AND SINCE THE ASSESSEES DAUGHTER WAS MARRIED AND NOT LIVING WITH HIM, IT REQUIRED TIME TO PROCURE THE DOCUMENT, WHICH OPPORTUNITY WAS DENIED BY THE AO. HE, THEREFORE, STATED THAT THE ADDITIONAL EVIDENCE NEED ED TO BE ADMITTED. 26. THE LD. DR VEHEMENTLY OBJECTED TO THE SAME RELYING ON THE ORDER OF THE CIT(A) THAT THE ASSESSE E ITA NO.1045/CHD/2013 A.Y. 2009-10 18 HAD NOT MADE OUT A VALID CAUSE FOR THE ADMISSION OF ADDITIONAL EVIDENCES AS PER RULE 46 OF THE INCOME T AX RULES, 1962. 27. AFTER CONSIDERING THE CONTENTIONS OF BOTH THE PARTIES WE ARE OF THE VIEW THAT THE ASSESSEE HAS MA DE OUT A CASE THAT HE WAS DENIED OPPORTUNITY TO FILE T HE EVIDENCES BEFORE THE AO.AS RIGHTLY POINTED OUT BY T HE LD.COUNSEL FOR THE ASSESSEE THE INCOME TAX RETURNS OF THE DAUGHTER AND SON IN LAW OF THE ASSESSEE WERE PA RT OF RECORD OF THE DEPARTMENT ITSELF AND DID NOT CONSTITUTE ADDITIONAL EVIDENCE AT ALL. THE AFFIDAVI TS OF THE TWO PERSONS ADMITTING ON OATH THAT THE BILLS MENTIONED IN THE DOCUMENT FOUND BELONGED TO THEM WAS IN AFFIRMATION OF THE CONSISTENT CONTENTION OF THE ASSESSEE IN THIS REGARD AND IT HAS BEEN DULY DEMONSTRATED THAT THE NON FILING OF THE SAME BEFORE THE AO WAS FOR THE REASON THAT ADEQUATE OPPORTUNITY WAS NOT GIVEN SINCE THE TWO DID NOT STAY WITH THE ASSESSEE AND TIME FOR PROCURING THE SAME WAS REQUIR ED WHICH WAS NOT AFFORDED BY THE AO WHO PASSED THE ORDER WITHIN 15 DAYS OF FILING OF REPLY BY THE ASSE SSEE EXPLAINING THE CONTENTS OF THE IMPUGNED DOCUMENT. ITA NO.1045/CHD/2013 A.Y. 2009-10 19 28. WE, THEREFORE, ADMIT THE SAME FOR ADJUDICATION AND RESTORE THE ISSUE BACK TO THE AO TO VERIFY THE EVIDENCES, NOW FILED AND DECIDE THE ISSUE AFRESH AF TER CONSIDERING ALL THE CONTENTIONS RAISED BY THE ASSES SEE. NEEDLESS TO ADD THAT DUE OPPORTUNITY BE GIVEN TO TH E ASSESSEE OF HEARING. GROUND OF APPEAL NOS.5, 6 AND 7 RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 29. GROUND NO.8 RAISED BY THE ASSESSEE READS AS UNDER: 8. THAT ALL THE AFOREMENTIONED ADDITIONS ARE BASED ON DUMB DOCUMENTS AND ONLY UNDER THE REALM OF SUSPICION, SU RMISES AND CONJECTURES WHICH MERIT DELETION AT THE OUTSET. THE ABOVE GROUND WAS NOT PRESSED AND THE SAME IS DISMISSED AS NOT PRESSED. 30. GROUND NO.9 RAISED BY THE ASSESSEE READS AS UNDER: 9. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) H AS FURTHER ERRED IN UPHOLDING THE CHARGING OF THE INTE REST UNDER SECTIONS 234-A, 234-B & 234C OF THE ACT WHICH IS NO T CHARGEABLE IN THE INSTANT CASE. ITA NO.1045/CHD/2013 A.Y. 2009-10 20 THE ABOVE GROUND RELATING TO CHARGING OF INTEREST U/S 234A 234B AND 234C OF THE ACT IS CONSEQUENTIAL AND NEEDS NO ADJUDICATION. 31. GROUND OF APPEAL NO.10 RAISED BY THE ASSESSEE READS AS UNDER: 10. THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TA X (APPEALS) IS ERRONEOUS, ARBITRARY, OPPOSED TO LAW A ND FACTS OF THE CASE AND IS, THUS, UNTENABLE. THE ABOVE GROUND IS GENERAL AND HENCE NEEDS NO ADJUDICATION. 32. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- $ % & ' ( (DIVA SINGH ) (ANNAPURNA GUPTA) ! ' /JUDICIAL MEMBER )* ' /ACCOUNTANT MEMBER $ /DATED: 31 ST JULY, 2019 * * &) *+,+ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ' - / CIT 4. ' - ( )/ THE CIT(A) 5. +./ 0 , $0 , 123/4 / DR, ITAT, CHANDIGARH 6. /35# / GUARD FILE &) ' / BY ORDER, / ASSISTANT REGISTRAR