Mr Bharat M Nagori, Pune V. Dy Comm of Income-tax, Pune

ITA 1099/PUN/2011

• Counselvise Citation: 109924514 RSA 2011
• Duration Of Justice: 1 year(s) 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 30-08-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: VIPIN GUJRATHI
• Keywords: Unexplained cash credit; Document seized; Corroborative evidences; Documents seized
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER , AND SHRI R.K. PANDA, ACCOUNTANT MEMBER. ITA.NOS.1099/PN/2011 (ASSESSMENT YEAR 2007-08) BHARAT M. NAGORI, A-15, SHATRURANJAY DARSHAN, SHANKARSHET ROAD, GHORPADI PETH, PUNE 411037. PAN NO.ACQPN 2497Q .. APPELLANT VS. DCIT, CENTRAL CIRCLE-1(1), PMT BUILDING, SWARGATE, PUNE .. RESPONDENT ASSESSEE BY : SRI VIPIN GUJRATHI REVENUE BY : SMT. SHAILJA RAI DATE OF HEARING : 04-04-2013 DATE OF PRONOUNCEMENT : 10-06-2013 ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DATED 24-01-2011 OF THE CIT(A)-I, PUNE RELATING TO ASSES SMENT YEARS 2007-08. 2. THE ONLY EFFECTIVE GROUND RAISED BY THE ASSESSEE READS ARE UNDER : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE HONBLE CIT(A)-I, PUNE ERRED IN CONFIRMING THE ADDITION OF RS.47,00,000/- ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S.68 OF THE IN COME TAX ACT, 1961 WITHOUT APPRECIATING THE FACTS OF THE CASE. THE AP PELLANT HEREBY PRAYS THAT THE ADDITION MAY PLEASE BE DELETED. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT A SEARCH U /S.132 OF THE INCOME TAX ACT WAS CARRIED OUT IN THE CASE OF THE ASSESSEE ON 10-08-2006. THE ASSESSEE FILED HIS RETURN OF INCOME ON 05-04-2008 FOR THE A. Y. 2007-08 DISCLOSING THE TAXABLE INCOME OF RS.31,12,320/-. DURING THE C OURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTED THAT ALONG WITH SEARCH IN THE CASE OF THE ASSESSEE, A SEARCH U/S.132 OF THE INCOME TAX ACT IN THE CASE OF SRI HASMUKH BABULAL JAIN ALSO WAS CONDUCTED ON 10-08-20 06. DURING THE 2 COURSE OF SEARCH SEVERAL RECORDS WERE SEIZED FROM T HE RESIDENCE OF SRI HASMUKH BABULAL JAIN. THE SEIZED RECORDS INCLUDE 4 SMALL POCKET DIARIES FOR THE MONTHS OF MAY TO AUGUST 2006. SRI HASMUKH JAIN IS AN ASSOCIATE OF THE ASSESSEE AND IN HIS DIARIES THERE ARE CERTAI N TRANSACTIONS PERTAINING TO THE ASSESSEE. THE ASSESSING OFFICER ASKED THE ASSE SSEE TO EXPLAIN THE TRANSACTIONS IN DETAIL. IN RESPONSE TO THE SAME, I T WAS CONTENDED THAT M/S.EISHA I REALTOR,S WHEREIN HE IS A PARTNER, PURC HASED A PROPERTY CALLED SSPMS PROPERTY FROM M/S. KOTE AND POOJARI AND IMMED IATELY AFTER THE PURCHASE THE FIRM AGREED TO SELL THIS PROPERTY ON A CCOUNT OF WHICH IT RECEIVED CASH OF RS.79,30,000/- AND CHEQUE PAYMENT OF RS.1,08,000/-. THIS CASH WAS RECEIVED SRI HASMUKH JAIN AND IN TURN WAS RECEIVED BY THE ASSESSEE. DETAILS OF THE RECEIPTS AND PAYMENTS ARE AS UNDER : SR.NO. BUNDLE NO. PAGE NO. DATE AMOUNT PAYMENT 1 9 7 13-06-2006 10,00,000/- 2 9 14 22-06-2006 3,00,000/- 3 9 15 24-06-2006 28,00,000/- 4 9 3 03-07-2006 21,00,000/- 5 9 9 19-07-2006 15,00,000/- TOTAL 62,00,000/- 15,00,000/- 3.1 THE AO THEREAFTER ASKED THE ASSESSEE TO IDENTIF Y THE PERSON FROM WHOM THE MONEY HAS BEEN RECEIVED. THE ASSESSEE CON TENDED THAT MONEY HAS BEEN RECEIVED ON ACCOUNT OF SALE OF SSPMS PLOT FROM ONE MR. KARIA. THE CONSIDERATION RECEIVED IN CASH AS PER THE ASSES SEE IS AT RS.17,30,000/-. ON BEING ASKED BY THE AO TO FURNISH THE CONFIRMATIO N FROM MR. KARIA REGARDING THE CASH PAYMENT, THE ASSESSEE DID NOT FU RNISH SUCH CONFIRMATION. THEREFORE, THE AO WAS OF THE OPINION THAT THE ASSES SEE HAS NOT PROVED THE SOURCE OF THE CASH RECEIVED BY THE FIRM M/S. EISHA I REALTORS. HE, THEREFORE, ASKED THE ASSESSEE TO CLARIFY AS TO WHY THE ADDITIO N SHOULD NOT BE MADE 3 UNDER PER THE PROVISIONS OF SECTION 68 OF THE INCOM E TAX ACT. IN RESPONSE IT WAS SUBMITTED THAT THE CASH HAS FIRST BEEN RECEI VED BY M/S. EISHA I REALTORS AND THE SAME IS RECORDED IN THE BOOKS OF M /S. EISHA I REALTORS AND THE RETURN OF INCOME OF THE FIRM M/S. EISHA I REALT ORS HAS BEEN FILED BEFORE ITO WARD-2(2), PUNE. 4. IT WAS SUBMITTED THAT THE ASSESSEE HAS WITHDRAWN CERTAIN MONEY FROM THE FIRM IN HIS CAPACITY AS A PARTNER. IT WAS SUB MITTED THAT THIS MONEY IS RECEIVED FROM YOGESH KARIA ON ACCOUNT OF AN ORAL AG REEMENT REGARDING THE SALE OF SSPMS LAND. THE ASSESSEE FURNISHED A COPY O F AGREEMENT REGARDING THE PURCHASE OF SSPMS LAND BY M/S. EISHA I REALTORS FOR RS.14 CRORES FOR WHICH M/S. EISHA I REALTORS HAS PAID RS.2.7 CRORES BY CHEQUE. IT WAS SUBMITTED THAT THIS IS A DISPUTED PROPERTY AND BALA NCE AMOUNT WAS TO BE GIVEN ONLY AFTER THE RECEIPT OF THE POSSESSION. AS POSSESSION HAS NOT BEEN RECEIVED M/S. EISHA I REALTORS HAS NOT PAID THE BA LANCE ONSIDERATION TO MRS. SHARDA KOTE, POOJARI AND DANDAWATE FROM WHOM THE PROPERTY HAS BEEN PURCHASED BY M/S. EISHA I REALTORS. IT WAS SUBMIT TED THAT ANY CONSIDERATION RECEIVED ON ACCOUNT OF SALE OF LAND W ILL OBVIOUSLY BE THE CONSIDERATION RECEIVED BY M/S.EISHA I REALTORS AND THEREFORE, THE SOURCES FOR THE CASH RECEIPT IS PROVED BEYOND DOUBT. IT W AS FURTHER SUBMITTED THAT IF AT ALL ADDITION HAS TO BE MADE BY INVOKING THE PROV ISIONS OF SECTION 68 OF THE I. T. ACT, 1961, THE SAME NEEDS TO BE ADDED IN THE HANDS OF M/S. EISHA I REALTORS AND NOT IN THE CASE OF THE ASSESSEE. 5. HOWEVER, THE ASSESSING OFFICER WAS NOT CONVINCED WITH THE EXPLANATION GIVEN BY THE ASSESSEE AND MADE ADDITION OF RS.47 LAKHS BY HOLDING AS UNDER : 4 I HAVE CAREFULLY CONSIDERED THE CONTENTIONS OF THE ASSESSEE. I DO NOT DISPUTE THE CLAIM THAT SSPMS PROPERTY HAS BEEN PURC HASED BY EISHA I REALTORS. I ALSO DO NOT DISPUTE THE FACT THAT IN TH E DIARY OF SHRI HASMUKH JAIN SEIZED DURING SEARCH, SSPMS HAS BEEN WRITTEN AGAINS T THE RECEIPTS. BUT, WHAT I AM NOT CONVINCED IS THE SOURCES FOR THE MONEY THAT HAS COME INTO THE DIARIES OF SHRI HASMUKH JAIN. TO BE JUDICIOUS, AN OPPORTUNITY WAS GIVEN TO THE ASSESSEE TO PROVE THE SOURCES FOR CASH CREDITED IN THE BOOKS OF THE ASSESSEE. AS THE ASSESSEE HAS NOT FURNISHED A CONFIRMATION FROM THE SO CALLED PURCHASER, IT IS DIFFICULT TO BELIEVE THE VERSIONS OF THE ASSESSEE I N THIS REGARD. IN THIS CONTENTION, THE ASSESSEE WAS ASKED TO FURNI SH A COPY FO THE AGREEMENT BETWEEN M/S. EISHA I REALTORS AND SHRI YO GESH KARIA FROM WHOM THE ASSESSEE CLAIMS TO HAVE RECEIVED THE PART CONSIDERA TION IN CASH. IN RESPONSE, IT IS CONTENDED THAT THERE IS NO WRITTEN AGREEMENT REG ARDING THE SALE OF THIS LAND. THIS CLAIM LOOKS VERY STRANGE AND ABNORMAL. IT IS TRUE THAT M/S. EISHA I REALTORS HAS RECEIVED CHEQUES FOR RS.108 LAKHS FROM KARIA GR OUP (RIVERA ESTATES DEVELOPERS PVT. LIMITED. RS.86 LAKHS AND YOESH SUND ARJI KARIA RS.22 LAKHS). BUT, THE CHEQUE PAYMENT CAN ALWAYS BE A LOAN. HAD MR. KARIA GIVEN RS.79,30,000/- IN CASH ON ACCOUNT OF LAND PURCHASE, I DO NOT SEE ANY REASON WHY HE SHOULD NOT OWN IT UP. AS HE DOES NOT OWN UP THI S CASH, THE SOURCE FOR THIS CASH ARE UNPROVED. THE RECEIPT OF CASH HAS BEEN AC COUNTED FOR BY SHRI HASMUKH JAIN IN THIS DIARIES AND HAS BEEN SUBSEQUENTLY BROU GHT INTO THE BOOKS OF SHRI BHARAT M. NAGORI. THUS, IT IS VERY CLEAR THAT THE MONEY THAT HAS BEEN CREDITED IN THE BOOKS OF SHRI BHARAT NAGORI (THE ASSESSEE) DOES NOT HAVE PROPER SOURCE AND HENCE PROVISIONS OF SECTION 68 ARE CLEARLY ATTRACTE D. AS FAR AS THE CLAIM THAT IF AT ALL AN ADDITION IS T O BE DONE, THE SAME NEEDS TO BE DONE IN THE HANDS OF M/S. EISHA I REALTORS IS CONCERNED. I FULLY AGREE WITH THE ASSESSEE. HOWEVER, AS PER THE PROVISIONS OF SE CTION 68 OF I.T., THERE IS A CASE TO TAX THE SAME IN THE CASE OF THE ASSESSEE ALSO. HAD THE ASSESSEE OFFERED THE SAME AS INCOME IN THE CASE OF M/S. EISHA I REALTORS , THE SAME WOULD NOT HAVE BEEN TAXED IN THE HANDS OF THE ASSESSEE. THIS NOT BEING THE FACT AND THE CASH IS BEING USED BY THE ASSESSEE, I SEE A LOGIC IN INVOKI NG THE PROVISIONS OF SECTION 68 OF I.T. ACT, 1961 FOR CREDITS IN THE BOOKS OF THE A SSESSEE FOR OUTSTANDING AMOUNT OF RS.47,00,000/-. ACCORDINGLY, RS.47,00,000/- IS DEEMED TO BE THE INCOME OF THE ASSESSEE U/S.68 OF I.T. ACT, 1961. 6. IN APPEAL THE LD. CIT(A) UPHELD THE ACTION OF TH E ASSESSING OFFICER BY HOLDING AS UNDER : 3.3.3. AFTER CAREFULLY CONSIDERING THE MATERIALS A VAILABLE ON RECORD INCLUDING THE XEROX COPIES OF THE DIARIES SUBMITTED BY THE APPELL ANT SHOWING THE IMPUGNED TRANSACTIONS ALONG WITH RIVAL SUBMISSIONS, IT IS VE RY CLEARLY SEEN THAT THE ASSESSING OFFICER HAS ARRIVED AT THE CONCLUSION CORRECTLY EVE N THOUGH THE FACTS AND THE ARGUMENTS WERE NOT PROPERLY MARSHALED IN THE ORDER. AS AGAINST THAT THE APPELLANT CAN BE SEEN TO HAVE PUT FACTS AND ARGUMENTS IN A MA NNER SO AS TO CONFUSE THE REAL ISSUE. UNDISPUTED FACTS ARE THAT THE APPELLANT GROU P WAS SEARCHED AND CERTAIN DIARIES WERE SEIZED FROM MR. HASMUKH B. JAIN, WITH WHOM THE APPELLANT HAS BEEN CONDUCTING BUSINESS REGULARLY WHEREIN MAINLY UNACCOUNTED TRANSACTIONS WERE RECORDED. THERE WERE TRANSACTIONS RELATING TO APP ELLANT SHRI BHARAT NAGORI, AS PER WHICH THE APPELLANT DURING THE ASSESSMENT YEAR UNDE R CONSIDERATION HAS RECEIVED RS.62,00,000/- (10,00,000 ON 13.6.2006, 3,00,000 ON 22.6.2006, 28,00,000 ON 24.6.2006 AND 21,00,000 ON 3.7.2006) IN CASH ON DIFFERENT DATES AS MENTIONED IN THE ASSESSMENT ORDER AS WELL AS IN THE SUBMISSIO N AND HAS PAID BACK 5 RS.15,00,000 IN CASH ON 19.7.2006. THE APPELLANT A CCEPTED THAT THE ABOVE REFERRED TRANSACTION RELATES TO HIM AND THEREFORE, ITS OWNERSHIP IS NOT IN DISPUTE BEFORE THE UNDERSIGNED. THE ASSESSING OFFICER HAS T REATED THE NET OF THE ABOVE FIGURES I.E. RS.47,00,000/- AS UNEXPLAINED CASH CRE DIT U/S 68 AS PER THE DISCUSSIONS MADE BY HIM IN THE ASSESSMENT ORDER WHICH IS BEING CONTESTED IN THIS APPEAL. ON CAREFUL CONSIDERATION OF THE FACTS AND THE RIVAL S UBMISSIONS IT IS NOT POSSIBLE TO ACCEPT THE ARGUMENTS OF THE APPELLANT FOR THE REASO NS DISCUSSED HEREUNDER. THE PERUSAL OF THE SEIZED DOCUMENTS CLEARLY SHOWS THAT THE INFERENCE BEING DRAWN BY THE APPELLANT IS NOT CORRECT. EVEN THOUGH THE WORDS SSPMA, KARIA ETC. APPEAR ALONG, WITH SOME OF THE IMPUGNED TRANSACTIONS BUT F ROM THE SAME IT CANNOT BE CONCLUSIVELY INFERRED THAT THEY RELATE TO SALE OF T HE LAND TO KARIA GROUP. THE APPELLANT HAS NOT BEEN ABLE TO BACK UP HIS CLAIM WI TH SUPPORTING EVIDENCE LIKE AGREEMENT TO SALE, CONFIRMATION ETC. WITH OR FROM K ARIA GROUP. THERE IS NO PLAUSIBLE EXPLANATION ON RECORD FOR NOT HAVING A WR ITTEN AGREEMENT TO SALE EVEN THOUGH THE PROPERTY WAS DISPUTED AS PER THE CLAIM O F THE APPELLANT. MORE SO, WHEN THE APPELLANT CLAIMS THAT CASH OF RS.79,30,000 /- WAS RECEIVED FROM THIS GROUP AS ADVANCE. NO PRUDENT BUSINESSMAN WILL GIV E MONEY IN CASH WITHOUT ANY DOCUMENTARY EVIDENCE EVEN THOUGH THE TRANSACTIONS A RE IN BLACK MONEY. THE APPELLANT AS AGAINST THAT CLAIMS THAT THE TRANSACTI ON IS RECORDED IN THE BOOKS OF EISHA I REALTORS AND IN THAT CASE THERE IS NO REASO N FOR NOT HAVING AGREEMENT FOR THIS TRANSACTION. THERE IS NO PLAUSIBLE EXPLANATION ALSO FOR THE FAILURE ON THE PART OF THE APPELLANT TO SUBMIT THE CONFIRMATION FROM TH E KARIA GROUP FOR THE CLAIMED TRANSACTIONS EVEN THOUGH THE SAME WAS ASKED FOR SPE CIFICALLY BY THE ASSESSING OFFICER. THE CLAIM OF THE APPELLANT THAT THE ASSES SING OFFICER GRAVELY ERRED IN NOT SUMMONING MR. YOGESH KARIA OR DIRECTOR OF RIVERA ES TATE DEVELOPERS PVT. LTD., IS NOT IN THE PROPER APPRECIATION OF LAW. THE CLAIM A BOUT THE SOURCE TO KARIA GROUP HAS BEEN MADE BY THE APPELLANT AND THEREFORE, IF AT ALL, MR. KARIA OR THE DIRECTOR OF RIVERA ESTATE DEVELOPERS PVT. LTD. WOULD BE APPELLA NT'S EVIDENCE AND THE ASSESSING OFFICER CANNOT BE ENDOWED WITH THIS RESPONSIBILITY UNLESS THE APPELLANT HAD CLAIMED DURING ASSESSMENT ABOUT THE IMPORTANCE OF T HIS EVIDENCE AND HIS INABILITY TO PRODUCE HIM FOR SOME PLAUSIBLE REASON. IN THE A BSENCE OF ANY SUCH FACT ON RECORD THIS CLAIM WAS INCORRECTLY MADE DURING APPEA L AND CANNOT BE ADMITTED. FURTHERMORE, EVEN IF FOR THE SAKE OF ARGUMENT FOR A MOMENT IT IS ACCEPTED THAT THE CONTENTION ABOUT THE LAND TRANSACTION IS CORRECT, T HERE IS NOTHING ON RECORD TO SHOW THAT THE SAME RELATES TO THE SAME ENTRIES WHIC H ARE APPEARING IN THE SEIZED DIARIES. THEREFORE, IT IS VERY CLEAR THAT THE INFER ENCE DRAWN BY THE APPELLANT ARE BASED ON MANY PRESUMPTIONS WHICH ARE NOT BA CKED BY ACCEPTABLE EVIDENCES. THERE IS NOTHING ON RECORD TO ESTABLISH THE NEXUS BETWEEN THE AMOUNTS APPEARING IN THE DIARY WITH ANY OF THE KNOW N SOURCES CLAIMED BY THE APPELLANT. IT HAS BEEN CLAIMED BY THE APPELLANT T HAT THE MONEY RELATES TO SALE OF LAND BELONGING TO THE FIRM EISHA I REALTORS IN WHIC H THE APPELLANT AS WELL AS MR. HASMUKH JAIN ARE PARTNERS AND' THE SAID MONEY WAS W ITHDRAWN FROM THE FIRM OUT OF THE CAPITAL ACCOUNT OF THE APPELLANT. IT IS NOT DIFFICULT TO SEE THAT THE ASSESSMENT YEAR UNDER CONSIDERATION IS A.Y. 2007-08 IN WHICH S EARCH TOOK PLACE ON 26.8.2006 AND THEREFORE, THE BOOKS WERE NOT COMPLETE AND AUDI TED ON THE DATE OF THE SEARCH AND NO RETURN ON THE BASIS OF THE SAME WAS FILED TILL THAT DATE. POSSIBILITY OF MAKING THESE ENTRIES IN THE REGULAR BOOKS AFTER TAKING INTO ACCOUNT THE MATERIALS FOUND DURING SEARCH CANNOT BE DENIED AND THEREFORE, ANY ENTRY APPEARING IN THE BOOKS HAS TO BE TREATED AS SELF SE RVING EVIDENCES HAVING LITTLE CREDIBILITY UNLESS IT IS BACKED UP BY OTHER INDEPEN DENT FACTS OR EVIDENCES. THE COPY OF THE RETURN OF EISHA I REALTORS AND THE CAPITAL ACCOUNT OF THE APPELLANT APPEARING IN THE SAID FIRM THEREFORE, HAS NO EVIDEN TIARY VALUE, MORE SO, WHEN NO CONFIRMATION FROM KARIA GROUP, NO COPY OF AGREEMENT FOR THE LAND DEAL, NO REASONABLE EXPLANATION FOR RECEIPT OF SO CALLED ADV ANCE IN CASH, AND NO EVIDENCE ESTABLISHING NEXUS BETWEEN THE LAND DEAL AND TH E TRANSACTIONS APPEARING IN THE SEIZED DIARY ETC. ETC. HAVE BEEN PRODUCED. THE ASSE SSING OFFICER HAS TREATED THE ENTRIES APPEARING IN THE BOOKS AS UNEXPLAINED BY FI CTION OF LAW AND THE ONUS IS ON 6 THE APPELLANT TO ESTABLISH THAT THE FICTION IS NOT OPERATING AGAINST HIM. IN THE PRESENT CASE, AS THE SUBMISSIONS AND EVIDENCES ARE NOT CREDIBLE, COMPLETE AND ACCEPTABLE, THE FICTION HAS TO BE HELD TO BE OPERAT ING AGAINST THE APPELLANT. IT CAN FURTHER BE SEEN ON EXAMINATION THAT HAD THE TRANSAC TIONS APPEARING IN THE DIARY BEEN RELATING TO THE WITHDRAWAL FROM THE FIRM, IT W OULD HAVE BEEN WRITTEN IN THE DIARY SO. FURTHERMORE, IN THAT CASE THERE WAS NO NEED FOR ANY SUCH ENTRY IN THE DIARY AS THE DIARY WAS MAINLY USED TO NOTE UNACCOUN TED TRANSACTIONS. SIMILARLY IF THE TRANSACTIONS WERE RELATING TO EISHA I REALTORS AS HAS BEEN CLAIMED BY THE APPELLANT, THERE SHOULD HAVE BEEN ENTRY RELATING TO EISHA I REALTORS IN THE DIARY. THEREFORE, FROM THE FOREGOING FACTS AND DISCUSSIONS , IT IS NOT DIFFICULT TO SEE THAT THE APPELLANT SUBSEQUENT TO THE SEARCH HAS TRIED TO BRING IN EISHA I REALTORS IN THE TRANSACTIONS TO CONFUSE THE ISSUE BY CREATING A SUB TERFUGE AND ITS REMOVAL REVEALS THE REAL TRANSACTIONS. THE EXPLANATIONS GIVEN IN RE SPECT OF ENTRIES BY THE APPELLANT IN THE SUBMISSIONS ARE ALSO ONLY PARTLY CORRECT AND WORDS HAVE BEEN PUT IN TO SUPPORT THEIR CLAIM. THE APPELLANT WAS REQUIRED TO EXPLAIN EACH AND EVERY ENTRY OF THE SEIZED PAPER WITH ACCEPTABLE AND CREDIBLE EVIDE NCES AND THEN ONLY IT CAN BE CLAIMED THAT THE ENTRIES ARE EXPLAINED AND ADVERSE VIEW SHOULD NOT BE TAKEN. IN THE ABSENCE OF THE SAME, THE FINDINGS GIVEN BY THE ASSESSING OFFICER IS CORRECT AND APPEAL IS TREATED AS DISMISSED. MANY ARGUMENTS APPE ARING IN THE SUBMISSIONS ARE BASED ON INCORRECT ASSUMPTIONS VIZ. THE ISSUE OF TA XABILITY OF THE RIGHT PERSON, ASSESSMENT OF ADVANCE ETC. AND THEY DO NOT REQUIRE DETAILED DISCUSSION AND ADJUDICATION BECAUSE THE PRESUMPTIONS ITSELF ARE IN CORRECT IN THE FACTS OF THE CASE. FOR THE DISCUSSIONS MADE HEREINABOVE, GROUND NO. 1 IS TREATED AS DISMISSED. 6.1 AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASS ESSEE IS IN APPEAL BEFORE US. 7. THE LD. COUNSEL FOR THE ASSESSEE STRONGLY CHALLE NGED THE ORDER OF THE ASSESSING OFFICER AND THE CIT(A) AND SUBMITTED THAT THE AMOUNT IS NOT ALL UNEXPLAINED IN THE HANDS OF THE ASSESSEE. HE SUBMI TTED THAT IN CASE ANY ADDITION IS TO BE MADE IT HAS TO BE MADE IN THE HAN DS OF M/S. EISHA I REALTORS, A PARTNERSHIP FIRM, WHICH HAS RECEIVED TH E AMOUNT. THE ASSESSEE BEING A PARTNER IN THE FIRM HAS WITHDRAWN THE MONEY AND THEREFORE THERE IS NO QUESTION OF ANY ADDITION IN THE HANDS OF THE ASS ESSEE U/S.68 OF THE I.T. ACT. REFERRING TO PAGE 4 OF THE ASSESSMENT ORDER H E SUBMITTED THAT THE ASSESSING OFFICER IN THE LAST PARAGRAPH HIMSELF HAS STATED THAT HE FULLY AGREES WITH THE ASSESSEE REGARDING THE CONTENTION T HAT IF AT ALL ADDITION IS TO BE DONE, THE SAME NEEDS TO BE DONE IN THE HANDS OF M/S. EISHA I REALTORS. HOWEVER, THE ASSESSING OFFICER HAS DEVIATED FROM H IS OBSERVATION AND 7 ADDED IN THE HANDS OF THE ASSESSEE ON THE GROUND TH AT SINCE M/S. EISHA I REALTORS HAD NOT OFFERED THE SAME TO TAX THE SAME N EEDS TO BE TAXED IN THE HANDS OF THE ASSESSEE. HE SUBMITTED THAT THIS STAN D OF THE ASSESSING OFFICER WHICH HAS BEEN UPHELD BY THE CIT(A) IS NOT CORRECT AND PROPER. REFERRING TO THE ORDER OF THE CIT(A) HE SUBMITTED THAT THE LD . CIT(A) IS NOW IMPROVING THE CASE OF THE ASSESSING OFFICER WHICH T HE ASSESSING OFFICER HAS NOT DONE. HE ACCORDINGLY SUBMITTED THAT THE AD DITION MADE BY THE ASSESSING OFFICER AND UPHELD BY THE CIT(A) SHOULD B E DISMISSED. 8. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND HEAVILY RELIED ON THE ORDER OF THE ASSESSING OFFICER AND TH E CIT(A). SHE SUBMITTED THAT THE BOOKS OF THE FIRM WERE NOT FINALISED AT TH E TIME OF SEARCH. REFERRING TO PAGE 43 OF THE PAPER BOOK WHICH IS THE LEDGER AC COUNT OF MR.BHARAT M. NAGORI IN THE BOOKS OF M/S. EISHA I REALTORS, SHE D REW THE ATTENTION OF THE BENCH REGARDING THE ENTRIES RELATING TO THE F.Y. 20 05-06 APPEARING FROM 01- 04-2006 TO 31-03-2007. SHE SUBMITTED THAT THE ASSE SSEE HAS JUST TRIED TO MAKE A CASE SOMEHOW OR OTHER. HOWEVER, HE HAS NOT DISCHARGED THE BURDEN CAST ON HIM. THEREFORE, THE ADDITION MADE BY THE A SSESSING OFFICER AND SUSTAINED BY CIT(A) SHOULD BE UPHELD. 9. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. THERE IS NO DISPUTE TO THE FACT THAT DURING THE COURSE OF SEARCH CERTAIN DOCUMENTS WERE SEIZED FROM THE RESIDENCE OF HASMUKH BABULAL JAIN ACCORDING TO WHIC H THE ASSESSEE HAS RECEIVED CERTAIN AMOUNTS AS PER THE ENTRIES RECORDE D IN THE BOOKS OF HASMUKH BABULAL JAIN AND THE NET AMOUNT OF WHICH CO MES TO RS.47 LAKHS. 8 IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASS ESSEE THAT THE CASH HAS FIRST BEEN RECEIVED BY M/S. EISHA I REALTORS AND TH E SAME IS RECORDED IN THE BOOKS OF M/S. EISHA I REALTORS AND THE ASSESSEE HAS WITHDRAWN THE MONEY FROM THE FIRM IN HIS CAPACITY AS A PARTNER, THEREFO RE, ADDITION IF ANY HAS TO BE MADE IN THE HANDS OF THE M/S. EISHA I REALTORS AND NOT IN THE HANDS OF THE ASSESSEE. IT IS ALSO THE CASE OF THE ASSESSEE THAT THE ASSESSING OFFICER IN THE BODY OF THE ASSESSMENT ORDER HAS MENTIONED THAT IN PRINCIPLE HE AGREES WITH THE PROPOSITION, HOWEVER, HE IS NOT WILLING TO ACCE PT THE SAME SINCE M/S. EISHA I REALTORS HAD NOT OFFERED THE AMOUNT TO TAX. IT IS THE CASE OF THE REVENUE THAT SINCE THE ASSESSEE HAS ACCEPTED THAT T HE ENTRIES RECORDED IN THE SEIZED DOCUMENTS RELATE TO HIM, THEREFORE, ITS OWNE RSHIP IS NOT IN DISPUTE. FURTHER, THE ASSESSEE HAS NOT BEEN ABLE TO BACK UP HIS CLAIM WITH SUPPORTING EVIDENCE LIKE AGREEMENT TO SALE, CONFIRMATION ETC. WITH OR FROM KARIA GROUP. NO PLAUSIBLE EXPLANATION HAS BEEN GIVEN BY THE ASSE SSEE AS TO HOW CASH OF RS.79,30,000/- WAS RECEIVED FROM THIS GROUP AS ADVA NCE WHEN THE PROPERTY ITSELF WAS A DISPUTED PROPERTY SINCE NO PRUDENT BUS INESSMAN WILL GIVE MONEY IN CASH WITHOUT ANY DOCUMENTARY EVIDENCE. FU RTHER, NEITHER ANY CONFIRMATION FROM THE KARIA GROUP WAS PRODUCED NOR ANY PERSON FROM THE KARIA GROUP WAS PRODUCED BEFORE THE ASSESSING OFFIC ER FOR HIS EXAMINATION. IT IS ALSO THE CASE OF THE REVENUE THAT WHEN THE SE ARCH TOOK PLACE ON 26-08- 2006 THE BOOKS WERE NOT COMPLETE AND AUDITED AND NO RETURN OF INCOME WAS FILED TILL THE DATE OF SEARCH. THEREFORE, THE ENTR IES APPEARING IN THE BOOKS AFTER THE SEARCH WAS COMPLETED ARE ONLY SELF-SERVIN G DOCUMENTS. WE FIND MERIT IN THE ABOVE CONTENTION OF THE REVENUE THE L EDGER ACCOUNT OF M/S. BHARAT M. NAGORI IN THE BOOKS OF M/S. EISHA I REALT ORS, (A COPY OF WHICH IS PLACED AT PAGE 43 OF THE PAPER BOOK) SHOWS THE DETA ILS AS UNDER : 9 EISHA I REALTORS BHARAT M. NAGORE LEDGER ACCOUNT 01 ST APRIL 2006 TO 31 ST MARCH 2007 PAGE 1 DATE PARTICULARS AMOUNT VCH TYPE VCH NO. DEBIT CREDIT 13 - 06 - 2006 TO CASH PAYMENT 1 10,00,000.00 21 - 06 - 2006 (AS PER DETAILS) SARLA SURESH KOTE 8,00,000 DR. JOURNAL 6 23,00,000.00 HASMUKH B. JAIN 31,00,000.00 CR. (PAID ON 31/10/05 17/03/05 & 14/03/05 PAID TO SURESH KOTE BY SUNIL P. ZAGADE CH.NO.809093, DT.02/11/05 JOURNAL 7 10,00,000.00 BY SUNIL P. ZAGADE CH.NO.809095, DT.03/11/05 JOURNAL 11 5,00,000.00 BY SUNIL P. ZAGADE CH.NO.263611, DT.24/11/05 JOURNAL 12 5,00,000.00 BY SUNIL P. ZAGADE CH.NO.263610, DT.28/11/05 JOURNAL 13 5,00,000.00 BY SARLA SURESH KOTE CH.NO.808099 DT.20/08/05 PAID TO SURESH KOTE JOURNAL 14 11,00,000.00 BY SARLA SURESH KOTE CH.NO.808092 DT.03/11/05 PAID TO SURESH JOURNAL 15 5,00,000.00 BY SARLA SURESH KOTE CH.NO.272603 DT.16/11/05 PAID TO SURESH JOURNAL 16 5,00,000.00 BY SHRIKANT PUJARI CH.NO.808098 DT.20/08/05 JOURNAL 17 11,00,000.00 BY SHRIKANT PUJARI CH.NO.809090 DT.02/11/05 JOURNAL 18 5,00,000.00 BY SHRIKANT PUJARI CH.NO.272602 DT.16/11/05 JOURNAL 19 5,00,000.00 22 - 06 - 2006 BY PUNE PEOPLES CO.OP. BANK 924 CH.NO.511785 RECEIPT 4 30,00,000.00 TO CASH PAYMENT 9 3,00,000.00 24 - 06 - 2006 TO CASH PAYMENT 13 28,00,000.00 3 - 07 - 2006 TO CASH PAYMENT 16 21,00,000.00 15 - 07 - 2006 TO CASH RECEIPT 13 15,00,000.00 11 - 01 - 2007 BY PUNE PEOPLES CO.OP BANK - 924 CH.NO.214785 RECEIPT 17 10,00,000.00 20 - 3 - 2007 BY PUNE PEOPLES CO.OP BANK - 924 CH.NO.165676 PAYMENT 31 7,00,000.00 92,00,000.00 1,22,00,000.00 30,00,000.00 TO CLOSING BALANCE 1,22,00,000.00 1,22,00,000.00 10 9.1 FROM THE ABOVE, IT IS SEEN THAT IN THE LEDGER A CCOUNT FOR THE PERIOD 01- 04-2006 TO 31-03-2007 THE ASSESSEE HAS ENTERED CERT AIN CHEQUES RELATING TO THE MONTH OF NOVEMBER 2005 ON 21-06-2006. SIMILARLY , JOURNAL ENTRY DATED 21-06-2006 CONTAIN PAYMENTS MADE ON 31-10-2005, 17- 03-2006 AND 14-03- 2006 PAID TO SURESH KOTE. WE, THEREFORE, FIND MERI T IN THE SUBMISSION OF THE LD. DEPARTMENTAL REPRESENTATIVE THAT THE ASSESS EE HAS SOMEHOW OR OTHER TRIED TO MAKE CERTAIN ENTRIES TO JUSTIFY THE AMOUNT RECEIVED AT RS.47 LAKHS TOWARDS UNEXPLAINED CASH CREDIT WHICH IS NOTH ING BUT SELF SERVING DOCUMENTS. IN THIS VIEW OF THE MATTER AND IN VIEW OF THE DETAILED DISCUSSION MADE BY THE ASSESSING OFFICER AND THE CIT(A) WHICH HAS BEEN EXTRACTED IN THE PRECEDING PARAGRAPHS WE DO NOT FIND ANY INFIRMI TY IN THE ORDER OF THE LD. CIT(A) SUSTAINING THE ADDITION MADE BY THE ASSE SSING OFFICER. ACCORDINGLY, THE SAME IS UPHELD AND THE GROUND RAIS ED BY THE ASSESSEE IS DISMISSED. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. PRONOUNCED IN THE OPEN ON THIS THE 10 TH DAY OF JUNE 2013. SD/- SD/- (SHAILENDRA KUMAR YADAV ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER SATISH PUNE, DATED : 10 TH JUNE 2013. COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT(A)-I, PUNE 4. THE CIT-I, PUNE 5. THE DR B BENCH, PUNE. 6. GUARD FILE BY ORDER // TRUE COPY // PRIVATE SECRETARY, INCOME TAX APPELLATE T RIBUNAL, PUNE.