Sh. Kamaldeep Singh Virk, Mohali V. ITO, W-6(2), Mohali

ITA 1080/CHANDI/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8948 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 21-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH CIT DR
• Keywords: Unexplained investment; Corroborative evidences; Set aside
• Section: 69; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH SMC CHANDIGARH !', # BEFORE: SMT. DIVA SINGH, JM ./ ITA NO. 1080/CHD/2018 / ASSESSMENT YEAR : 2010-11 SHRI KAMALDEEP SINGH VIRK, # 3091, PHASE-7, MOHALI. VS THE ITO, WARD 6(2), MOHALI. ./ PAN NO: BDZPS1902C / APPELLANT / RESPONDENT ! ' / ASSESSEE BY : SHRI TEJ MOHAN SINGH, ADVOCATE # ! ' / REVENUE BY : SHRI MANJIT SINGH, CIT (DR) $ % ! &/ DATE OF HEARING : 12.09.2019 '()* ! &/ D ATE OF PRONOUNCEMENT : 26.09.2019 $%/ ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE WHEREIN THE CORRECTNESS OF THE ORDER DATED 31.07.20 18 OF CIT(A)-2, CHANDIGARH IS ASSAILED ON VARIOUS GROUNDS . 2. HOWEVER, AT THE TIME OF HEARING, THE LD. AR SUBM ITTED THAT HE HAS BEEN INSTRUCTED NOT TO PRESS GROUND NOS . 1 AND 3 RAISED BY THE ASSESSEE. ACCORDINGLY, HE WOULD BE A RGUING ONLY GROUND NO. 2. NOTING TO THE SAID EFFECT HAS B EEN GIVEN BY THE LD. AR IN THE MEMO OF THE APPEAL FILED. ACCORD INGLY, THE ITA 1080/CHD/2018 A.Y. 2010-11 PAGE 2 OF 19 ONLY GROUND WHICH REMAINS FOR ADJUDICATION IS EXTRA CTED HEREUNDER : 2. WITHOUT PREJUDICE TO THE ABOVE, THE LD. COMMIS SIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AS WELL AS ON FACTS IN UPHOLDING THE A DDITION OF RS.43,70,000/- MADE ON ACCOUNT FOR CASH DEPOSITS IN BANK ACCOUNT IN UTTER DISREGARD OF THE EXPLANATIONS RENDERED WHICH IS ARBITRARY AND UNJUSTIFIED. 3. ADDRESSING THE SAID GROUND, LD. AR DREW ATTENTIO N TO THE FACTS AS NOTICED AND ENCAPSULATE BY THE CIT(A) IN P ARA 7 AND 7.1 OF THE ORDER. INVITING ATTENTION TO THE ARGUMEN TS ADVANCED ON BEHALF OF THE ASSESSEE, WHICH HAVE BEEN EXTRACTE D IN PARA 7.2, THE LD. AR PLACING HEAVY RELIANCE THEREUPON SU BMITTED THAT THESE ARGUMENTS ARE RELIED UPON IN THE PRESENT PROCEEDINGS ALSO. REFERRING TO THE RELEVANT PAGES OF THE PAPER BOOK AVAILABLE ON RECORD WHICH WERE RELIED UPON BEF ORE THE CIT(A) ALSO, IT WAS SUBMITTED THAT THESE HAVE BEEN DISCARDED BY THE TAX AUTHORITIES MERELY ON PRESUMPTIONS AND SUSPICIONS. 3.1 IN THE SAID BACKGROUND, INVITING ATTENTION TO T HE FINDINGS ARRIVED AT BY THE CIT(A) IN PARA 7.3 OF THE ORDER, IT WAS HIS SUBMISSION THAT THE SAID CONCLUSION BASED ON SUSPIC IONS IS EVEN OTHERWISE CONTRARY TO FACTS AND LAW. CARRYING THE BENCH THROUGH THE RELEVANT SUBMISSIONS, FINDINGS AND THE CONCLUSIONS, LD. AR SUBMITTED THAT THE ONLY ISSUE W HICH WAS REQUIRED TO BE ADDRESSED BY THE ASSESSEE WAS THE S OURCE OF THE DEPOSITS FOUND REFLECTED IN HIS ACCOUNT. THE AS SESSEE, IT ITA 1080/CHD/2018 A.Y. 2010-11 PAGE 3 OF 19 WAS SUBMITTED, HAD SUCCESSFULLY EXPLAINED DEPOSITS FROM SHRI JARNAIL SINGH A CLOSE FRIEND OF HIS FATHER. THIS C LAIM WAS DEMONSTRATED BY SUPPORTING EVIDENCES WHICH HAD BEEN ACCEPTED IN PART. BY PLACING THE EVIDENCES IT WAS SUBMITTED THE ONUS PLACED ON THE ASSESSEE STOOD DISCHARGED. ADDRESSING THE FACTS, IT WAS ARGUED THAT THERE IS N O DISPUTE THAT THE FUNDS TO THE SAID EXTENT WERE AVAILABLE WI TH SHRI JARNAIL SINGH AS A RESULT OF HIS LAND ACQUIRED ON 0 9.10.2009. THE SOURCE WAS STATED TO BE NOT DOUBTED. IT WAS ALS O HIS SUBMISSION THAT THE FACT THAT CASH WITHDRAWALS WERE MADE TO THE TUNE OF RS. 75 LACS BY SHRI JARNAIL SINGH ON 12 .10.2009 WAS ALSO NOT DOUBTED. PAPER BOOK PAGE 20 WAS REFERR ED TO WHICH FACT, IT WAS SUBMITTED, HAS NOT BEEN DISPUTED BY THE REVENUE AND IS ALSO AN ADMITTED FACT ON RECORD. REF ERRING TO THE CONSISTENT ARGUMENTS ADVANCED, IT WAS SUBMITTED, TH E ASSESSEE HAS ALSO EXPLAINED THAT HIS FATHER WAS A CLOSE FRIE ND OF SHRI JARNAIL SINGH. BY THE TIME THE ASSESSEE WAS BEING Q UESTIONED ON IT, SHRI JARNAIL SINGH HAD EXPIRED. EVIDENCE TO TH IS EFFECT, IT WAS STATED, IS AVAILABLE ON RECORD. THE FACT OF ADVANC E OF AMOUNTS BY SHRI JARNAIL SINGH HAS BEEN ADMITTED BY SHRI JARNAI L SINGHS DAUGHTER ON AN AFFIDAVIT. THE MONEY WAS ADVANCED TO THE ASSESSEE FOR INVESTMENT AND INSURANCE PURPOSES TO A FRIENDS SON WHO WAS ENGAGED IN BANKING AND INVESTMENT RELAT ED ACTIVITIES. IT WAS SUBMITTED SHRI JARNAIL SINGH ON ACCOUNT OF ITA 1080/CHD/2018 A.Y. 2010-11 PAGE 4 OF 19 THE HEALTH RELATED PROBLEMS NEEDED LIFE INSURANCE C OVER. THE ASSESSEE HAS EXPLAINED THAT FROM THE STATED WITHDRA WAL IN CASH BY SHRI JARNAIL SINGH AN AMOUNT OF RS. 31 LACS WAS ADVANCED IN CASH AND IT WAS DEPOSITED ON 27.10.2009 BY THE ASSESSEE IN THE NAME OF SHRI JARNAIL SINGH. IT WAS SUBMITTED THAT THE LIFE INSURANCE COVER IS PERSON SPECIFIC ON ACCOUNT OF WHICH FACT, IT WAS DEPOSITED IN THE NAME OF SHRI JA RNAIL SINGH AND THE FLOW OF MONEY FROM THE SAME SOURCE HAS BEEN ACCEPTED BY THE DEPARTMENT. 3.2 REFERRING TO THE RECORD, IT WAS SUBMITTED THAT SHRI JARNAIL SINGH AND HIS FATHER MR. GURDEEP SINGH VIRK HAD VERY CLOSE CORDIAL FAMILY RELATIONS OVER THE YEARS. THI S FACT HAS CONSISTENTLY BEEN ARGUED BEFORE THE TAX AUTHORITIES AND HAS NOT BEEN UPSET BY THE REVENUE. THE ASSESSEE BEING SON OF A CLOSE FRIEND OF SHRI JARNAIL SINGH AND WAS ALSO ENG AGED IN THE BANKING SECTOR WAS ENTRUSTED WITH THE FUNDS TO BE P ARTLY DEPOSITED FOR LIFE INSURANCE COVER AND THE REMAININ G AMOUNT OF RS. 43,70,000/- WAS TO BE INVESTED IN THE SHARE MARKET. IT WAS HIS SUBMISSION THAT IT IS A MATTER OF FACT THAT DURING THIS PERIOD, SHARE MARKET WAS PERFORMING WELL AND AS AND WHEN THERE WERE ANY PROFITS, THE AMOUNTS WERE HANDED OVE R TO SHRI JARNAIL SINGH. THIS FACT, IT WAS SUBMITTED, HAS BE EN ACCEPTED BY THE SOLE SURVIVING CHILD OF SHRI JARNAIL SINGH S MT. TEJINDER KAUR. IT WAS SUBMITTED THAT THOUGH THE ASSESSEE IS ONLY ITA 1080/CHD/2018 A.Y. 2010-11 PAGE 5 OF 19 REQUIRED TO ADDRESS THE SOURCE WHICH STANDS ESTABLI SHED, THE ASSESSEE, IT WAS ARGUED ON THE BASIS OF THE AFFIDAV IT OF THE SOLE SURVIVING CHILD OF SHRI JARNAIL SINGH COULD AL SO ESTABLISH THAT PROFITS AS AND WHEN DUE WERE PAID TO SHRI JARN AIL SINGH. IT HAD ALSO BEEN EXPLAINED THOUGH NOT REQUIRED UNDE R LAW THAT ULTIMATELY, THERE WAS A LOSS OF ABOUT RS. 39 LACS O DD. THE ASSESSEE'S FATHER BEING A CLOSE FRIEND AND FEELING MORALLY BOUND, RETURNED PART OF THE FUNDS DURING THE LIFE T IME OF SHRI JARNAIL SINGH. EVIDENCE TO THE SAID EFFECT, IT WAS SUBMITTED, HAS BEEN PLACED ON RECORD BY THE ASSESSEE. REFERRIN G TO PAPER BOOK PAGE 26 IT WAS HIS SUBMISSION THAT AN AMOUNT O F RS. 3 LACS ODD WAS RETURNED AFTER WITHDRAWAL ON 08.06.201 2 AND AN AMOUNT OF RS. 7 LACS ODD WAS RETURNED FROM THE CASH AVAILABLE AT HAND WITH SHRI G.S.VIRK WHO WAS A PENS ION HOLDER HAVING HIS OWN INDEPENDENT INCOME. IT WAS HI S SUBMISSION THAT IT IS NOT A CASE WHETHER THERE WERE ANY COUNTER CLAIMS OF SHRI JARNAIL SINGH PENDING WITH T HE ASSESSEE. THE ONLY ISSUE FOR CONSIDERATION WAS THE SOURCE/AVAILABILITY OF FUNDS AMOUNTING TO RS. 43,70 ,000/- WITH THE ASSESSEE. 3.3 IT WAS HIS SUBMISSION THAT THIS MONEY LIKE RS. 31 LAKH DEPOSITED IN INSURANCE IN THE NAME OF SHRI JARNAIL SINGH WAS ALSO RECEIVED IN CASH FROM SHRI JARNAIL SINGH. THE ASSESSEE ACTING IN GOOD FAITH DUE TO THE CLOSE FAMILY RELATI ONS ITA 1080/CHD/2018 A.Y. 2010-11 PAGE 6 OF 19 DEPOSITED THE FUNDS IN HIS INDIA BULLS ACCOUNT FOR TRANSACTIONS IN MUTUAL FUNDS ETC. THIS ACT OF GOOD FAITH WAS NEVER QUESTIONED BY SHRI JARNAIL SINGH OR HIS SOLE SURVIVING DAUGHTER MS. TEJINDER KAUR. IT WAS HIS SUBMISSION THAT WHEN THE DEPARTMENT QUESTIONED THE ASSESSEE ON 25.03.201 7, SHRI JARNAIL SINGH WAS NO LONGER ALIVE. THIS FACT, IT W AS SUBMITTED, IS EVIDENT FROM PAPER BOOK PAGE 35 WHICH CONTAINS THE DEATH CERTIFICATE OF SHRI JARNAIL SINGH WHO EXP IRED ON 31.08.2012. IN THESE CIRCUMSTANCES, IT WAS ARGUED THE ONLY EVIDENCE WHICH THE ASSESSEE COULD RELY UPON WAS THE AFFIDAVIT OF THE SOLE SURVIVING CHILD OF SHRI JARNAIL SINGH I .E. MS. TEJINDER KAUR, COPY OF WHICH IS AVAILABLE AT PAGE 9 OF THE PAPER BOOK. IT WAS HIS SUBMISSION THAT THE AFFIDAV IT OF MS. TEJINDER KAUR, DAUGHTER OF SHRI JARNAIL SINGH IS DA TED 21.08.2015 AND IS A DOCUMENT WHICH IS MUCH BEFORE T HE ISSUANCE OF NOTICE BY THE AO ON 25.03.2017. IN THE SE CIRCUMSTANCES, IT WAS HIS SUBMISSION THAT IT CANNOT BE SAID TO BE SPECIFICALLY CREATED FOR THIS PURPOSE AND CANNOT BE SET ASIDE WITHOUT ASSIGNING ANY REASONS. THE CONTENTS OF THE AFFIDAVIT, IT WAS SUBMITTED, HAVE NOT BEEN UPSET. NO EFFORT, IT WAS SUBMITTED, TO EVEN EXAMINE THE SAID DEPONENT WA S MADE BY THE TAX AUTHORITIES. IT WAS SUBMITTED THAT THE M ARRIAGE OF THE LADY WAS INFACT FIXED BY THE EFFORTS OF SHRI G. S.VIRK. THE CLOSE FAMILY RELATIONS BETWEEN THE TWO FAMILIES IS CONSISTENTLY ITA 1080/CHD/2018 A.Y. 2010-11 PAGE 7 OF 19 ARGUED. IN THE FACTS WHICH HAVE NOT BEEN UPSET, IT WAS HIS SUBMISSION THAT NO ADDITION WAS WARRANTED EITHER ON FACTS OR LAW. 4. THE LD. CIT-DR MR. M.SINGH VEHEMENTLY RELYING UP ON THE IMPUGNED ORDER DREW SPECIFIC ATTENTION TO PARA 7.3 OF THE ORDER. RELYING ON THE SAME IT WAS SUBMITTED THAT T HE ADDITION DESERVES TO BE MAINTAINED. ALTERNATELY, IT WAS HIS PRAYER THAT IN CASE THE AFFIDAVIT OF SHRI JARNAIL SINGHS DAUGH TER SMT. TEJINDER KAUR IS TO BE CONSIDERED, THEN THE AO MAY BE DIRECTED TO CARRY OUT AN ENQUIRY. THE AFFIDAVIT, IT WAS SUBMITTED AT THIS STAGE MAY NOT BE ACCEPTED. 5. THE LD. AR IN REPLY SUBMITTED THAT THE AFFIDAVIT IS AVAILABLE ON RECORD. IT HAS BEEN AVAILABLE TO THE T AX AUTHORITIES ALL ALONG. THE AFFIDAVIT IS DATED 21.0 8.2015. THE ASSESSMENT PROCEEDINGS AFTER THE ISSUANCE OF NOTICE U/S 148 FOR THE TRANSACTIONS PERTAINING TO 2012 COMMENCED O N 25.03.2017. SINCE THE AFFIDAVIT WAS AVAILABLE TO TH E AO AS WELL AS THE CIT(A), THE TAX AUTHORITIES HAD AMPLE O PPORTUNITY TO EITHER CALL FOR THE SAID LADY OR REBUT THE EVIDE NCES FILED. THUS, MERELY BECAUSE IT WAS ARGUED THAT WITHOUT ASS AILING OR EXAMINING THE CONTENTS OF THE AFFIDAVIT, THE ASSESS EE SHOULD NOT BE FORCED TO GO THROUGH THE ENTIRE PROCESS. SO ME FACT SHOULD BE ON RECORD TO JUSTIFY SUCH A PRAYER. IT WA S RE- ITERATED THAT THE SOLE ISSUE FOR CONSIDERATION IS T HE DEPOSIT OF ITA 1080/CHD/2018 A.Y. 2010-11 PAGE 8 OF 19 RS. 43,70,000/- IN INDIA BULLS ACCOUNT OF THE ASSES SEE. THE ASSESSEE HAS CONSISTENTLY ARGUED THAT THESE WERE FU NDS AVAILABLE TO THE ASSESSEE FROM SHRI JARNAIL SINGH A CLOSE FAMILY FRIEND. THE AVAILABILITY OF FUNDS WITH SHRI JARNAIL SINGH HAS BEEN DEMONSTRATED BEFORE THE AO. IT IS N OT DOUBTED BY THE DEPARTMENT. SINCE BY THE SAID TIME, SHRI JARNAIL SINGH WAS NO LONGER ALIVE, THE EVIDENCE OF PART PAYMENT BACK TO SHRI JARNAIL SINGH DURING HIS LIFE TIME WAS A FACT ARGUED BEFORE THE AO. AFFIDAVIT OF SHRI JARNA IL SINGHS DAUGHTER ACCEPTING THE FACT THAT THE PROFIT AS AND WHEN REQUIRED AND DUE WERE RECEIVED BY HER FATHER WAS A STATEMENT ON AN AFFIDAVIT AVAILABLE BEFORE THE AO. IN THESE CIRCUMSTANCES, IT WAS HIS SUBMISSION THAT REMAND BA CK TO THE AO FOR CONSIDERING THE VERY SAME EVIDENCES WHICH TH E ASSESSEE ALL ALONG HAS PLACED BEFORE THE AO IN THE ORIGINAL ROUND WOULD BE AN ACT OF HARASSMENT FOR THE ASSESSE E. IT WAS HIS SUBMISSION THAT NONE OF THE RELEVANT FACTS I.E. SHRI JARNAIL SINGH WAS ABOUT 85 YEARS OLD AT THE RELEVAN T POINT OF TIME; THAT HE WAS A CLOSE FRIEND OF HIS FATHER; THA T ON ACCOUNT OF THE TRUST AND PROXIMITY OF RELATIONSHIPS, THE FU ND IN THE INSURANCE WAS INVESTED THROUGH THE ASSESSEE. THE IN VESTMENT MADE IN THE INDIA BULLS ACCOUNT WAS ALSO ON BEHALF OF THE SHRI JARNAIL SINGH FROM THE FUNDS MADE AVAILABLE TO HIM AND THE PROFIT AS AND WHEN WAS SOUGHT BY SHRI JARNAIL S INGH WAS ITA 1080/CHD/2018 A.Y. 2010-11 PAGE 9 OF 19 SHARED BY THE ASSESSEE. THESE FACTS WERE AFFIRMED BY SHRI JARNAIL SINGHS DAUGHTER. IN THE CIRCUMSTANCES IT W AS HIS SUBMISSION THAT THE ASSESSEE MAKING INVESTMENT FOR SHRI JARNAIL SINGH THROUGH HIS BANK ACCOUNT ALONGWITH AL L THE SUPPORTIVE EVIDENCES ALREADY AVAILABLE IN THE FIRST ROUND BEFORE THE AO SHOULD NOT BE REMANDED BACK TO THE AO AS APART FROM THESE EVIDENCES THE ASSESSEE CAN PLACE N O FURTHER EVIDENCE. THE EVIDENCE FILED AND ALREADY AVAILABLE ON RECORD, IT WAS SUBMITTED, WAS SUFFICIENT TO EXPLAIN THE DEP OSITS AND THE RELIEF, IT WAS ARGUED HAS BEEN DENIED PURELY ON SUSPICIONS. 6. I HAVE HEARD THE SUBMISSIONS AND PERUSED THE MAT ERIAL ON RECORD. THE FACTS IN THE PRESENT CASE HAVE BEEN SUMMED UP IN THE IMPUGNED ORDER BY THE LD. CIT(A) IN THE FOLL OWING MANNER : 7. GROUND OF APPEAL NO 2 IS CHALLENGING THE ADDITION OF RS. 43,70,000/- ON ACCOUNT OF UNEXPLAINED INVESTMENT U/S 69 OF THE I.T ACT. 7.1 BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE H AD DEPOSITED CASH OF RS. 74,70,000/- IN HIS BANK ACCOUNT MAINTAINED WITH ING VYSYA BANK, CHANDIGARH. IN RESPONSE TO THE QUERY BY T HE DEPART MENT TO EXPLAIN THE SOURCE OF THIS CASH DEPOSIT, THE ASSESSEE STATED THAT ONE SH. JARNAIL SINGH ADVANCED HIM THE IMPUGNED CASH OF RS 43,70,000/- AND RS. 31,00,0 00/-TOTALING TO RS 74,70,000/-FOR MAKING INVESTMENT IN SHARE MARKET AN D IN LIFE INSURANCE RESPECTIVELY ON HIS BEHALF. THE ASSESSEE FURTHER ST ATED THAT HE INVESTED RS. 31,00,416/- IN KOTAK LIFE INSURANCE IN THE NAME OF SH. JARNAIL SINGH AND AN INVESTMENT OF RS.40,00,000/- WAS MADE IN INDIA BULL S SECURITIES IN HIS OWN NAME (ON BEHALF OF JARNAIL SINGH), IN WHICH THERE WAS A LOSS OF RS 39,50,000/- WHILE TRADING OF SHARES OF DIFFERENT COMPANIES HENCE, THE AMOUNT WAS NEVER RETURNED. THE ASSESSEE WAS ASKED TO FURNISH DOCUMENTARY EVIDE NCE REGARDING HAVING RECEIVED THE ADVANCE OF RS 43,70,000/- FROM SH. JAR NAIL SINGH BUT THE ASSESSEE FAILED TO ADDUCE ANY EVIDENCE IN THIS REGARD EXCEPT SAYING THAT SH. JARNAIL SINGH ITA 1080/CHD/2018 A.Y. 2010-11 PAGE 10 OF 19 HAD VERBALLY ASKED HIM TO INVEST IN SHARES ON HIS B EHALF. THE AO WAS OF THE OPINION THAT THE AMOUNT OF RS 43,70,000/- DEPOSITED IN THIS BANK ACCOUNT BY THE ASSESSEE IN CASH IS HIS OWN INCOME EARNED BY HIM FR OM SOME UNDISCLOSED SOURCES AND OUT OF WHICH THE AMOUNT OF RS 40,00,000 /- WAS INVESTED BY HIM IN INDIA BULLS SECURITIES IN HIS NAME. THE AMOUNT HAS NEVER BEEN RETURNED TO SH. JARNAIL SINGH. HAD THE AMOUNT OF RS 43,70,000/- REC EIVED IN CASH FROM SH. JARNAIL SINGH THE INVESTMENT IN INDIA BULLS SECURIT IES WOULD HAVE BEEN MADE IN THE NAME OF SH. JARNAIL SINGH. . IN VIEW OF THESE F ACTS THE AMOUNT OF RS 43,70,000/- WAS ADDED TO THE INCOME OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN THE BANK ACCOUNT. 6.1. THE ASSESSEE'S EXPLANATION ON WHICH HEAVY RELI ANCE HAS BEEN PLACED BY THE LD. AR WHICH HAS BEEN EXTRACTED BY THE LD. COMMISSIONER (APPEALS) IN PARA 7.2 IS ALSO EXTRACTE D HEREUNDER FOR THE SAKE OF COMPLETENESS : 7.2 ON THIS ISSUE AR OF THE ASSESSEE MADE WRITTEN S UBMISSION, WHICH IS REPRODUCED BELOW: 'WHILE COMPLETING THE ASSESSMENT, THE AO HAS OBSERV ED THAT MR KAMALDEEP SINGH DEPOSITED AN AMOUNT OF RS.74,70,000 IN SHARES AND INSURANCE. THIS FACT WAS NOT DENIED BEFORE AO. HOWE VER, AO HAS NOT APPRECIATED THE FACT THAT THIS AMOUNT BELONGED TO M R JARNAIL SINGH AGED 85 YEARS. MR. GURDEEP SINGH VIRK FATHER OF MR. KAMA LDEEP SINGH, A FAMILY FRIEND OF MR JARNAIL SINGH AND HAVE VERY CORDIAL RE LATIONS WITH HIM. SINCE MR JARNAIL SINGH WAS BED RIDDEN AND UNABLE TO MOVE, HE PASSED AN AMOUNT OF RS. 74,70,000 AFTER WITHDRAWING RS. 75 LA KH FROM HIS BANK ACCOUNT. HE RECEIVED AN AMOUNT OF RS. 1,07,92,968/- ON ACCOUNT OF ACQUISITION OF AGRICULTURAL LAND OWNED BY HIM. HE D EPOSITED THIS AMOUNT OF RS.1,07,92,968/- IN HIS BANK ACCOUNT AND PAID AN AM OUNT OF RS.74,70,000 TO MR KAMAL DEEP WHO WAS IN BANKING EMPLOYMENT AND PAID TO HIM AFTER WITHDRAWING AN AMOUNT OF RS. 75 LAKH FROM HIS BANK ACCOUNT. THE ENTIRE AMOUNT WAS PAID BY MR JARNAIL SINGH TO KAMALDEEP SI NGH IN CASH. MR KAMALDEEP DEPOSITED AN AMOUNT OF RS.31 LAKH IN THE NAME OF MR JARNAIL SINGH IN INSURANCE AND BALANCE IN SHARES. THE MOTIV E OF MR JARNAIL SINGH IN THESE DEPOSITS THROUGH MR KAMALDEEP WAS THAT HE WILL GET PROFIT IN INSURANCE AND SHARES. MR JARNAIL SINGH DURING THE COURSE OF ASSESSMENT PR OCEEDING ACCEPTED THAT HE PAID THIS AMOUNT TO MR KAMALDEEP SINGH AND ALSO RECEIVED BACK BY CHEQUE AN AMOUNT OF RS.31 LAKH ON ACCOUNT OF INSURA NCE. A COPY OF HIS CONFIRMATION IS ENCLOSED. THIS CONFIRMATION WAS DUL Y FILED WITH AO DURING THE COURSE OF ASSESSMENT. THIS RECEIPT WAS WITNESSE D BY HIS DAUGHTER TEJINDER KAUR AND ONE MR BALDEV SINGH. ITA 1080/CHD/2018 A.Y. 2010-11 PAGE 11 OF 19 MR KAMALDEEP DEPOSITED AN AMOUNT OF RS.31 LAKH IN H IS BANK ACCOUNT AND INVESTED THE SAME IN THE NAME OF MR JARNAIL SINGH I N KOTAK LIFE INSURANCE AND BALANCE RS.43,70,000 IN INDIA BULLS FOR INVESTM ENT IN SHARES. HE WAS OF THE OPINION THAT SHARE MARKET WOULD INCREASE HIS INVESTMENT. SHARE MARKET WAS AT PEAK AT THAT TIME. MR JARNAIL SINGH W AS VERY OLD (85 YEARS) AND WAS UNABLE TO PARTICIPATE ACTIVELY IN THE SHARE MARKET. UNFORTUNATELY, THERE WAS A LOSS IN SHARE MARKET AND MR JARNAIL SIN GH HAS TO BEAR THIS LOSS. MR KAMALDEEP SINGH WAS ONLY AN AGENT OF JARNA IL SINGH ACTING ON HIS BEHALF. AS SUCH THIS AMOUNT BELONGED TO MR JARNAIL SINGH. MR.KAMALDEEP SINGH HAS NOTHING TO OWN THIS AMOUNT OR GOT ANY PRO FIT.HOWEVER, MR GURDEEP SINGH VIRK FATHER OF MR KAMALDEEP SINGH ON MORAL RESPONSIBILITY OF HIS FRIEND PAID HIM AN AMOUNT OFRS.10 LAKH OUT O F HIS PENSION ACCOUNT ON 8.6.2012. AFTER GETTING THIS AMOUNT AND ALSO RS. 31 LAKH BY CHEQUE ON ACCOUNT OF INSURANCE, MR JARNAIL SINGH ISSUED RECEI PT HAVING CLEARED FULL AND FINAL AMOUNT DUE. THE ASSESSING OFFICER HAS ACC EPTED HAVING PAID BY MR JARNAIL SINGH AN AMOUNT OF RS.31 LAKH ON ACCOUNT OF INSURANCE WHICH HE RECEIVED BACK BY CHEQUE FROM COMPANY. AS THIS AM OUNT OF RS.31 LAKH HAS BEEN ACCEPTED BY AO IS INCLUDED IN THE TOTAL AM OUNT OF RS.74,70,000 PAID TO MR KAMALDEEP IN CASH AFTER WITHDRAWING IT F ROM BANK OUT OFRS.75 LAKH. PARTIAL ACCEPTANCE IS WITHOUT ANY BASIS. IN O THER WORDS HE HAS ACCEPTED THAT MR JARNAIL SINGH HAS PAID THE AMOUNT OF RS.74,70,000 WHICH INCLUDED RS.31 LAKH AS WELL.KINDLY ACCEPT OUR PLEA AS DURING ASSESSMENT AS WELL AS BEFORE YOUR GOODSELF HAVE DONE ITS DUTY TO PROVE SOURCE. THE ASSESSEE WAS REQUIRED TO SATISFY AO: 1. RECEIVER TO PROVE THE IDENTITY OF THE GIVER. 2. SOURCE AND NATURE OF AMOUNT SO ADVANCED. 3. GENUINENESS OF THE TRANSACTION WE HAVE SATISFIED AND PROVED IT WITH DOCUMENTARY EV IDENCE WHEREAS AO HAS FAILED TO PROVE ANY ADVERSE POINT IN OUR SUBMISSION EXCEPT THAT ONLY 31 LAKH WAS RETURNED AND OTHER AMOUNT WAS NOT RETURNED. IN OTHER WORDS HE HAS ACCEPTED HAVING RECEIVED THE AMOUNT FROM JARNAIL SI NGH AND IT HAS NOT BEEN DISPUTED. IT IS NOT REQUIRED TO VERIFY WHETHER AMOUNT RETURNE D OR NOT. IN OUR CASE WE HAVE RETURNED RS.10 LAKH OUT OF PENSION ACCOUNT TO MR JARNAIL SINGH AS FULL AND FINAL SETTLEMENT BESIDES RS.31 LAKH PAID BACK B Y INSURANCE COMPANY AS DRAFT. AN EXPLANATION PRIMA FACIE REASONABLE CANNOT BE REJECTED ON CAPORICIOUS OR ARBITRARY GROUNDS(RBN J NAIDU VS CIT 29IYTR 194(NAG). THE ASSESSEE IS ENTITLED TO HAVE EVIDENCE PRODUCED TO BE CONSIDERED AND AN INFERENCE TO BE DRAWN THERE FROM. BY MERELY REJECTI NG A GOOD EXPLANATION IGNORING EXPLANATION IS AN ERROR OF5 LAW. (BHAGWATI PRASAD MISRA VS CIT 35 ITR 97.' 6.2 CONSIDERING THE FACTS, SUBMISSIONS AND THE EVID ENCES, THE ADDITION MADE BY THE AO HAVE BEEN SUSTAINED BY THE LD. ITA 1080/CHD/2018 A.Y. 2010-11 PAGE 12 OF 19 COMMISSIONER (APPEALS) WHICH FINDING IS UNDER CHALL ENGE IN THE PRESENT PROCEEDINGS. FOR THE SAKE OF COMPLETEN ESS, THE SAID FINDING IS EXTRACTED HEREUNDER : 7.3 I HAVE CONSIDERED THE SUBMISSIONS OF THE ASS ESSEE AND PERUSED THE ASSESSMENT ORDER. IT IS UNDISPUTED THE ASSESSEE HAD DEPOSITED CASH OF RS. 74,70,000/- IN HIS BANK ACCOUNT. THUS THE PRIMARY ONUS WAS ON THE ASSE SSEE TO EXPLAIN THE SOURCE OF THIS CASH DEPOSIT. THE SOURCE OF THIS CASH DEPOSIT IS EXPLAINED TO BE AMOUNTS RECEIVED FROM SH. JARNAIL SINGH. IT IS FURTHER STAT ED THAT SH. JARNAIL SINGH ADVANCED HIM THE IMPUGNED CASH OF RS 43,70,000/- ON 16.1 0.2009 AND RS. 31,00,000/- ON 27.10.2009 WHICH WERE DEPOSITED BY HIM IN HIS BA NK ACCOUNT ON .THE SAID DATES. THE COPY OF THE BANK ACCOUNT OF SH. JARNAIL SINGH S HOWING A WITHDRAWAL OF RS 74,70,000/- ON 12.10.2009 HAS BEEN FURNISHED. IT IS FURTHER NOTICED THAT THE ASSESSEE HAS PURCHASED THE INSURANCE POLICY IN THE NAME OF S H. JARNAIL SINGH OF RS 31,00,000/- AND THEREFORE THE AO HAS ACCEPTED THE S OURCE OF THIS DEPOSIT OF RS 31,00,000/- ON 27.10.2009 HAS EXPLAINED. THE CASH D EPOSIT OF RS 43,70,000/- ON 16.10.2009 WAS USED TO INVEST RS 40,00,000/- IN IND IA BULLS SECURITIES IN THE NAME OF THE ASSESSEE HIMSELF. IT HAS BEEN CLAIMED BY THE ASSESSEE THAT THIS INVESTMENT WAS MADE ON BEHALF OF SH. JARNAIL SINGH BUT NO EVIDENCE IN THIS REGARD HAS BEEN PROVIDED. IT IS ALSO CLAIMED THAT SUBSEQUENTLY THER E WAS A LOSS OF RS 39,50,000/- IN TRADING OF SHARES BUT NO EVIDENCE IN THIS REGARD HA S ALSO BEEN PROVIDED. IT IS FURTHER STATED THAT IN VIEW OF THE RS 43,70,000/-RE CEIVED FROM SH. JARNAIL SINGH THE FATHER OF THE ASSESSEE SH. GURDEEP SINGH VIRK PAID RS 10,00,000/- TO SH JARNAIL SINGH ON 08.06.2012. NO EVIDENCE IN THIS REGARD TO SHOW THAT ANY MONEY WAS RETURNED TO SH. JARNAIL SINGH AND THE SAID MONEY WA S IN LIEU OF THE RS. 43,70,000/- RECEIVED FROM HIM BY HIS SON WAS PROVIDED. THE AFFI DAVIT OF DAUGHTER OF SHRI JARNAIL SINGH, SMT. TEJINDER KAUR HAS BEEN PROVIDED WHICH STATES THAT THE SAID MONEY WAS PROVIDED BY HER FATHER TO THE ASSESSEE. I T IS FURTHER STATED IN THE SAID AFFIDAVIT THAT SH. KULDEEP SINGH REGULARLY GAVE THE EARNING OF THE SHARE MARKET TO HER FATHER. NONE OF THE CONTENTIONS IN THIS AFFIDAV IT ARE CORROBORATE BY ANY SUPPORTING EVIDENCE. NOTHING HAS BEEN PLACED ON REC ORD TO SHOW THAT THE ASSESSEE WAS RETURNING TO SH. TEJINDER SINGH, THE EARNINGS F ROM THE STOCK MARKET. THUS THE VERACITY OF THIS AFFIDAVIT IS NOT ESTABLISHED. UNDE R THESE CIRCUMSTANCES THE ONLY EVIDENCE PROVIDED BY THE ASSESSEE TO SUPPORT THE CO NTENTION THAT THE MONEY WAS GIVEN BY SH. TEJINDER SINGH IS THE BANK ACCOUNT OF SH. TEJINDER SINGH SHOWING A WITHDRAWAL OF RS 75,00,000/- ON 12.10.2009. THIS EV IDENCE CANNOT TAKEN AS SATISFACTORY EVIDENCE TO EXPLAIN THE SOURCE OF CASH DEPOSIT OF RS 43,70,000/- ON 16.10.2009. THE ASSESSEE DEPOSITED RS 31,00,000/- O N 27.10.2009 AND PURCHASED THE INSURANCE IN THE NAME SH. TEJINDER SINGH OUT OF THIS MONEY. THE AO HAS CORRECTLY TAKEN THE SOURCE OF MONEY AS EXPLAINED. HOWEVER IT HAS NOT BEEN EXPLAINED WHY THE AMOUNT OF RS 75,00,000/- WITHDRAW N ON 12.10.2009 BY SH. JARNAIL SINGH AND CLAIMED TO HAVE BEEN GIVEN TO THE ASSESSEE WAS DEPOSITED ON TWO DIFFERENT DATES. NOTHING HAS BEEN BROUGHT ON RECORD TO SHOW THAT THE INVESTMENT IN THE SHARES THROUGH INDIA BULLS SECURITIES MADE IN T HE NAME OF ASSESSEE WAS ON BEHALF OF SH. JARNAIL SINGH. THE TRADING IN SHARES WOULD HAVE RESULTED IN PROFITS AND LOSS FROM TIME TO TIME BUT NO SUBSEQUENT FINANC IAL TRANSACTION BETWEEN THE ITA 1080/CHD/2018 A.Y. 2010-11 PAGE 13 OF 19 ASSESSEE AND SH JARNAIL SINGH IS VISIBLE IN THE BAN K ACCOUNT WHICH COULD INDICATE BUT THE SHARE TRANSACTIONS WERE BEING DONE ON BEHAL F OF SH. JARNAIL SINGH. THE CLAIM OF PAYMENT OF RS 10,00,000/- BY THE FATHER OF THE ASSESSEE TO SH. JARNAIL SINGH FOR SETTLEMENT OF ACCOUNT IS UNSUBSTANTIATED. THE AFFIDAVIT OF SMT. TEJINDER KAUR IS ALSO NOT RELIABLE AS BEING UNSUBSTANTIATED. THUS IN THE FACTS AND THE CIRCUMSTANCE OF THE CASE THE ASSESSEE HAS FAILED TO EXPLAIN THE SOURCE OF CASH DEPOSIT OF RS 43,70,000/-.IN HIS BANK ACCOUNT ON 16.10.2009. THE AO HAS CORRECTLY TREATED THIS AMOUNT AS UNEXPLAINED AND AD DED TO THE INCOME OF THE ASSESSEE. GROUND OF APPEAL NO. 2 IS DISMISSED . 6.3 WHEN THE ARGUMENT AS ADVANCED BEFORE THE CIT(A) IN THE LIGHT OF THE FINDING OF THE AO IS CONSIDERED, IT IS SEEN THAT BEFORE THE AO ALSO, THE ASSESSEE HAS PLEADED THAT T HERE WERE CLOSE FAMILY RELATIONS OF THE ASSESSEES FATHER WIT H SHRI JARNAIL SINGH, 85 YEARS OLD GENTLEMAN. THE AVAILAB ILITY OF THE STATED FUNDS FROM UNIMPEACHABLE SOURCES, IT IS SEEN IS A FACT AVAILABLE IN THE ASSESSMENT ORDER ITSELF. THESE AR E EVIDENCED FROM UN-NUMBERED PAGE 2 FROM THE ASSESSMENT ORDER A ND ARE REPRODUCED HEREUNDER AGAIN FOR THE SAKE OF COMPLETE NESS: 2. DURING THE YEAR UNDER CONSIDERATION THE ASSESSE E HAS MADE CASH DEPOSIT OF RS. 43,70,000/- ON 16.10.2009 AND RS. 31,00,000/- O N 27.10.2009 IN HIS BANK ACCOUNT NO. 5 6501 0037399 MAINTAINED WITH KOTAK MAHINDRA BANK, S ECTOR 8 CHANDIGARH. THE ASSESSEE WAS REQUIRED TO EXPLAIN TH E SOURCES OF THE SAID CASH DEPOSIT. IN REPLY, IT HAS BEEN STATED THAT ONE SH JARNAIL SINGH ADVANCE HIM THE IMPUGNED CASH OF RS 43,70,000/- AND RS. 31,00,000/- TOTALING RS 74,70,000/- FOR MAKING INVESTMENT IN SHARE MARKET AND IN LIFE INSUR ANCE RESPECTIVELY ON HIS BEHALF. IT HAS BEEN STATED THAT THE ASSESSEE INVESTED RS 31 ,00,416/- IN KOTAK LIFE INSURANCE IN THE NAME OF SH. JARNAIL SINGH AND INVESTMENT OF RS 40,00,000/- WAS MADE IN INDIA BULLS SECURITIES IN THE NAME OF THE ASSESSEE HIMSEL F. IN ORDER TO CONFIRM AND VERIFY THE CASH RECEIPT OF RS 74,70,000/- FROM SH. JARNAIL SINGH AND THE SOURCES OF CASH WITH HIM. (JARNAIL SINGH), STATEMENT OF THE ASSESSE E SH. KAMALDEEP SINGH VIRK, WAS RECORDED ON 05.09.2017. 2.1 IN THE STATEMENT RECORDED, IT HAS BEEN DEPOSED THAT SH. JARNAIL SINGH WAS ASSESSEE'S FAMILY FRIEND. SH. JARNAIL SINGH RECEIVE D RS 1.07,92,968/- ON 09.10.2009 IN LIEU OF HIS LAND ACQUIRED BY THE COLLECTOR LAND ACQUISITION URBAN DEVELOPMENT. PUNJAB. ASSESSEE STATED THAT SH. JARNAIL SINGH HAD GIVEN RS 74,70,000/- TO HIM FOR INVESTMENT IN KOTAK LIFE INSURANCE IN THE NAME OF S H. JARNAIL SINGH AND INVESTMENT ITA 1080/CHD/2018 A.Y. 2010-11 PAGE 14 OF 19 IN INDIA BULLS SECURITIES. ACCORDINGLY, HE INVESTED THE AMOUNT RECEIVED FROM SH. JARNAIL SINGH IN KOTAK LIFE INSURANCE AT RS 31,00,4 16/- AND INDIA BULLS SECURITIES 40,00,000/-. IT HAS ALSO BEEN ADMITTED THAT THE AMO UNT OF RS 31,00,000/- INVESTED IN KOTAK LIFE INSURANCE WAS RETURNED TO SH. JARNAIL SI NGH IN DECEMBER, 2011 THROUGH CHEQUE. HOWEVER, THE INVESTMENT OF RS 40,00,000/- M ADE BY HIM IN INDIA BULLS SECURITY, IN HIS OWN NAME (ASSESSEE) THERE WAS A LO SS OF RS. 39,50,000/- IN TRADING OF SHARES OF DIFFERENT COMPANIES HENCE, THE AMOUNT WAS NEVER RETURNED. THE ASSESSEE WAS ASKED TO FURNISH DOCUMENTARY EVIDENCE REGARDING HAVING RECEIVED THE ADVANCE OF RS 43,70,000/- FROM SH. JARNAIL SINYH. BUT THE A SSESSEE FAILED TO ADDUCE ANY EVIDENCE IN THIS REGARD EXCEPT SAYING THAT SH. JARN AIL SINGH HAD VERBALLY ASKED HIM TO INVEST IN SHARES ON HIS BEHALF. THE SUBMISSION M ADE BY THE ASSESSEE IS NOT ACCEPTABLE ON THE FACTS OF THE CASE. NO PERSON, WHO -SO-EVER MAY BE, WILL ALLOW TO MAKE INVESTMENT OF HIS HARD EARNED MONEY IN THE NAM E OF ANOTHER PERSON AND NOT IN HIS NAME AS WELL AS ALLOW TO RETAIN THE SAME BY ANO THER PERSON. 2.2 THE FACT IS THAT THE AMOUNT OF RS 43,70,000/- DEPOS ITED IN HIS BANK ACCOUNT BY THE ASSESSEE IN CASH IS HIS OWN INCOME EARNED BY HIM FROM SOME UNDISCLOSED SOURCES BEST KNOWN TO HIM AND OUT OF WHICH THE AMOU NT OF RS.40,00,000/- WAS INVESTED BY HIM IN INDIA BULLS SECURITIES IN HIS NA ME. THE AMOUNT HAS NEVER BEEN RETURNED TO SH. JARNAIL SINGH. HAD THE AMOUNT OF RS 43,70,000/- RECEIVED IN CASH FROM SH. JARNAIL SINGH, THE INVESTMENT IN INDIA BUL LS SECURITIES WOULD HAVE BEEN MADE IN THE NAME OF SH. JARNAIL SINGH. IN THE CIRCU MSTANCES, AN ADDITION OF RS 43,70,000/- IS MADE TO THE INCOME RETURNED BY THE A SSESSEE ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN THE BANK ACCOUNT. PENAL TY PROCEEDINGS U/S 271(L)(C) OF THE INCOME TAX ACT, ARE BEING INITIATED SEPARATELY FOR CONCEALMENT OF INCOME. 6.4 ON A READING OF THE ABOVE, IT IS SEEN THAT CONS ISTENTLY THE ASSESSEE HAS ARGUED THAT THE FUNDS WERE SOURCED FROM THE FUNDS AVAILABLE WITH SHRI JARNAIL SINGH. THE SOURC E OF THE FUNDS WITH SHRI JARNAIL SINGH ADMITTEDLY IS IMPECCA BLE AS THESE WERE RECEIVED ON 09.10.2009 FROM THE COLLECTO R, LAND ACQUISITION, URBAN DEVELOPMENT, PUNJAB TOTALING TO RS. 1,07,92,968/-. IT IS A FACT THAT THE PROCEEDINGS B EFORE THE AO STARTED AS A RESULT OF NOTICE ISSUED U/S 148 DATED 25.03.2017. IT IS SEEN THAT FOR THIS PURPOSE WHEN THE ASSESSEE WAS REQUIRED TO JUSTIFY THE RECEIPT OF CASH AMOUNTING T O RS. 74,70,000/- FROM SHRI JARNAIL SINGH, THE AO AS PER PARA 2 OF ITA 1080/CHD/2018 A.Y. 2010-11 PAGE 15 OF 19 HIS ORDER, AS EXTRACTED HEREIN ABOVE, IS FOUND TO H AVE RECORDED THE STATEMENT OF SHRI KAMAL DEEP SINGH VIR K I.E. THE ASSESSEE. IT IS SEEN THAT NOTHING ADVERSE OR CONTR ARY WAS NOTICED BY THE AO. THE AO AFTER HAVING RECORDED HI S STATEMENT CONSIDERING THE FURTHER SUPPORTING EVIDEN CES RELIED UPON BEFORE HIM, HELD IN PARA 2.1 THAT IN RESPONSE TO THE REQUIREMENT OF FURNISHING DOCUMENTARY EVIDENCES DEMONSTRATING ADVANCE OF RS. 43,70,000/- FROM SHRI JARNAIL SINGH, THE ASSESSEE FAILED TO ADDUCE ANY EVIDENCE IN THIS REGARD EXCEPT SAYING THAT SH. JARNAIL SINGH HAD VERBALLY ASKED HIM TO INVEST IN SHARES ON HIS BEHALF. THE SUBMISSION MADE BY THE ASSESSEE IS NOT ACCEPTABLE ON THE FACTS OF THE CASE. NO PERS ON, WHO-SO-EVER MAY BE, WILL ALLOW TO MAKE INVESTMENT OF HIS HARD EARNED MONEY IN THE NAME OF ANOTHER PERSON AND NOT IN HIS NAME AS WELL AS AL LOW TO RETAIN THE SAME BY ANOTHER PERSON . THE SAID ASSERTION AND PRESUMPTION IS CONTRARY TO RECORD. THE ASSESSEE HAS BEEN ENTRUSTE D WITH EVEN RS. 31 LAKH IN CASH WHICH THE ASSESSEE AS REQU IRED ACTING ON THE ORAL DIRECTION OF SHRI JARNAIL SINGH PURCHASED AN INSURANCE POLICY. THIS TRANSACTION HAS BEEN ACCE PTED AND NOT QUESTIONED. THUS, THERE WAS SUFFICIENT EVIDENC E ON RECORD TO SHOW THAT THE ASSESSEE AND SHRI JARNAIL SINGH DI D HAVE CLOSE RELATIONS SO MUCH SO THAT RS. 31 LAKH WAS HAN DED OVER IN CASH WITHOUT ANY COLLATERAL WITH ORAL INSTRUCTIO N TO THE ASSESSEE. THUS, THE OCCASION TO DOUBT THE SIMILAR ORAL ITA 1080/CHD/2018 A.Y. 2010-11 PAGE 16 OF 19 DIRECTION OF SHRI JARNAIL SINGH CONFIRMED BY SHRI J ARNAIL SINGHS DAUGHTER ON AFFIDAVIT, IT APPEARS HAS BEEN DISCARDED ON MERE SUSPICION. 6.5 ON A READING OF THE IMPUGNED ORDER, IT IS SEEN THAT THE ASSESSEE AGAIN REITERATED THE FACTS IN GREATER DETA IL NAMELY THAT THE AMOUNT OF RS. 31 LACS AS WELL AS RS. 43 LA CS WERE RECEIVED IN CASH. THE LD. CIT(A) IN PARA 7.3 HAS T AKEN NOTE OF THE FACT THAT THERE WAS AN EVIDENCE OF WITHDRAWAL O F RS. 74,70,000/- ON 2.10.2009 FROM THE COPY OF THE BANK ACCOUNT OF SHRI JARNAIL SINGH. THIS FINDING IS CORROBORATE D FROM PAPER BOOK PAGE 20 OF THE COMPILATION FILED BEFORE THE BE NCH WHICH HAS BEEN SHOWN TO BE AVAILABLE BEFORE THE AO AS WEL L AS THE CIT(A). IN THE FACTS OF THE PRESENT CASE, THE TAX AUTHORITIES WERE REQUIRED TO BE ADDRESSED ON THE DEPOSIT OF RS. 43,70,000/- FOUND DEPOSITED IN ASSESSEE'S BANK ACCO UNT. CLOSE PROXIMITY WITH SHRI JARNAIL SINGH STANDS ESTA BLISHED. ORAL INSTRUCTIONS QUA THE INVESTMENT OF RS. 31 LACS HANDED OVER IN CASH STANDS ACCEPTED OUT OF THE CASH WITHDR AWAL OF RS. 74,70,000/- MADE BY SHRI JARNAIL SINGH ON 12.10 .2009. RS. 31 LAKHS AS PER ORAL INSTRUCTIONS STOOD DEPOSIT ED BY ASSESSEE IN INSURANCE POLICY ON 27.10.2009. THE AS SESSEE AS IT IS NOT NOTICED, ERRED IN DEPOSITING THE RS. 43,7 0,000/- CONSIDERING IT TO BE CONVENIENT IN HIS INDIA BULLS SECURITIES WHERE HE MAINTAINED A D-MAT ACCOUNT, IN THE CIRCUMS TANCES ITA 1080/CHD/2018 A.Y. 2010-11 PAGE 17 OF 19 STANDS ADEQUATELY EXPLAINED AND ADDRESSED. THESE CL AIMS HAVE NOT BEEN UPSET BY ANY COUNTER EVIDENCE OR ARGU MENT EXCEPT SUSPICIONS. SHRI JARNAIL SINGHS DAUGHTER M S. T.KAUR CONFIRMS IT ON AFFIDAVIT. IN THE FACTS OF THE PRESE NT CASE, ADMITTEDLY THE EVIDENCE OF SHRI JARNAIL SINGH CANNO T BE TAKEN ON RECORD AS HE HAS EXPIRED MUCH BEFORE THE ISSUANC E OF NOTICE AS PER COPY OF THE DEATH CERTIFICATE AVAILAB LE ON RECORD. IT IS SEEN THAT SHRI JARNAIL SINGH EXPIRE D ON 31.08.2012. IN THIS BACKGROUND THE AFFIDAVIT OF MS . TEJINDER KAUR, DAUGHTER OF SHRI JARNAIL SINGH IS AVAILABLE O N RECORD. THE CONTENTS OF THE AFFIDAVIT ARE REPRODUCED HEREUN DER FOR THE SAKE OF CONVENIENCE : AFFIDAVIT I, TEJINDER KAUR D/O LATE S. JARNAIL SINGH, W/O CAP T. HARVEER SINGH, R/O HOUSE NO. 41, PHASE 3B-1, SAS NAGAR MOHALI, DO HEREBY SOLEMNLY AF FIRM AND DECLARE AS UNDER: - 1. THAT I AM THE ONLY LIVING CHILD OF MY PARENTS. 2. THAT PUDA HAD ACQUIRED THE AGRICULTURAL LAND OF MY FATHER LATE S. JARNAIL SINGH AND GIVEN HIM A CHEQUE NO. 262243 DATED 6.10.2009 A MOUNTING TO RS. 1,07,92,968/-. 3. HE DEPOSITED THIS CHEQUE IN HIS S.B. A/C NO. 278001 00000840 IN THE BANK OF BARODA, PHASE-IX, MOHALI. 4. THAT MY FATHER WAS A LEVER PATIENT AND UNDER TREATM ENT AT FORTIS HOSPITAL MOHALI. LATER ON IT WAS DECLARED LEVER CANCER. 5. THAT HE WITHDRAWN RS. 75 LAKHS FROM HIS THIS S.B. A /C ON 12/10/2009 THROUGH CHEQUE NO. 964972 AND PLANNED FOR HIS LIFE INSURANC E. 6. THAT MY FATHER GIVEN RS. 43,70,000/- ON 16.1Q.2009 TO KAMALDEEP SINGH SON OF S. GURDEEP SINGH VIRK R/O HOUSE NO. 3091, PHASE-VII, M OHALI, BEING OUR CLOSE FAMILY FRIEND. MY FATHER GIVEN RS. 31.00 LAKH ON 27 .10.2009 FOR THE FIRST PREMIUM OF LIFE INSURANCE. 7. THAT MY FATHER ADVISED KAMALDEEP SINGH TO INVEST RS . 43,70,000/- IN THE SHARE MARKET AND DO THE BUSINESS ON HIS BEHALF. ITA 1080/CHD/2018 A.Y. 2010-11 PAGE 18 OF 19 8. THAT KAMALDEEP SINGH REGULARLY AND HONESTLY GAVE TH E EARNING OF SHARE MARKET TO MY FATHER WHENEVER REQUIRED BY MY FATHER. 9. UNFORTUNATELY SHARE MARKET DECLINE. HENCE THE KAMAL DEEP SINGH HAD RETURNED THE REMAINING ALL AMOUNT TO MY FATHER. NOW NOTHING IS DUE TOWARDS KAMALDEEP SINGH S/O GURDEEP SINGH VIRK R/O HOUSE NO. 3091, PH ASE-VII, MOHALI. SD/- DEPONENT TEJINDER KAUR 6.6 A PERUSAL OF THE ABOVE SHOWS THAT THE SAID LA DY REITERATES THE AVAILABILITY OF FUNDS IN PARA 2 OF T HE ABOVE AFFIDAVIT AND IN PARAS 5, 6 AND 7 OF THE SAME, THE ASSESSEES EXPLANATION STANDS SUPPORTED. THE SAID AFFIDAVIT HA S NOT BEEN UPSET BY WAY OF ANY ARGUMENT, EVIDENCE OR MATERIAL. IN THESE CIRCUMSTANCES, I FIND ON A CAREFUL READING OF THE C ONSISTENT FINDINGS OF THE TAX AUTHORITIES THAT INSTEAD OF ADD RESSING EVIDENCES AVAILABLE ON RECORD, THE TAX AUTHORITIES HAVE MADE THE ADDITION AND SUSTAINED THE ADDITION ON THE GROU NDS THAT THE CONSISTENT SUBMISSION THAT SHRI JARNAIL SINGH VERBALLY ASKED THE ASSESSEE TO INVEST IS A FACT SUPPORTED ON LY BY THE ASSESSEE AND NOT CORROBORATED BY SHRI JARNAIL SINGH . THE FACT THAT SHRI JARNAIL SINGH WHO HAD BEEN SUFFERING FROM LIVER CANCER ETC. WAS NO LONGER ALIVE, STANDS IGNORED. T HE SOLE SURVIVING CHILD DOES NOT PLEAD IGNORANCE ON FACTS A ND INFACT CORROBORATES THE ASSESSEE'S VERSION BY AN AFFIDAVIT DATED 21.08.2015. THE SAID AFFIDAVIT IS NOT EVEN ATTEMPT ED TO BE UPSET BY THE REVENUE. FOR REASONS BEST KNOWN TO THE TAX AUTHORITIES, IT HAS BEEN LEFT UNADDRESSED. IN THE FACTS AS THEY ITA 1080/CHD/2018 A.Y. 2010-11 PAGE 19 OF 19 STAND, I AM OF THE VIEW THAT THE ONUS PLACED UPON B Y THE ASSESSEE TO EXPLAIN THE DEPOSITS IN HIS BANK ACCOUN T STANDS SATISFACTORILY DISCHARGED. THE ORDERS OF THE AO IGN ORING THE EVIDENCES ON WHIMS CANNOT BE UPHELD. THE INSISTENC E OF THE TAX AUTHORITIES WITHOUT UPSETTING THE EVIDENCES AVA ILABLE ON RECORD CANNOT BE ACCEPTED. I FIND THAT IN THE FACT S OF THE PRESENT CASE WITHOUT ANY EFFORT ON THE PART OF THE REVENUE TO ASSAIL THE CONTENTS OF THE AFFIDAVITS, PRAYER FOR R EMAND BACK TO THE AO HAS NO MEANING. ACCEPTING THE EXPLANATION OF THE ASSESSEE THE ADDITION FOR THE REASONS SET OUT HERE INABOVE IN DETAIL IS DIRECTED TO BE DELETED. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH SEPT.,2019. SD/- ( !' ) (DIVA SINGH) # / JUDICIAL MEMBER POONAM (+ ! ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. $ / / CIT 4. $ / ( )/ THE CIT(A) 5. -01 2 , & 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7% / GUARD FILE (+ $ / BY ORDER, 8 # / ASSISTANT REGISTRAR