Sh. Rajan Dhir, Parwanoo V. ACIT, Chandigarh

ITA 1153/CHANDI/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9938 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 year(s) 6 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 11-02-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 08-11-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained expenditure; Gift; Search and seizure; Loose papers; Peak credit; Additional evidence; Onus to prove
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI H.L.KARWA, VICE PRESIDENT AND MS. RANO JAIN, ACCOUNTANT MEMBER ITA NO.1070/CHD/2012 (ASSESSMENT YEAR : 2007-08) THE A.C.I.T., VS. SH.RAJAN DHIR, CENTRAL CIRCLE-1, # 52, SECTOR 4, CHANDIGARH. PARWANOO. PAN: ACVPD4864C & ITA NO.1152/CHD/2012 (ASSESSMENT YEAR : 2007-08) SH.RAJAN DHIR, VS. THE A.C.I.T., # 52, SECTOR 4, CENTRAL CIRCLE-1, PARWANOO. CHANDIGARH. PAN: ACVPD4864C ITA NO.1071/CHD/2012 (ASSESSMENT YEAR : 2008-09) THE A.C.I.T., VS. SH.RAJAN DHIR, CENTRAL CIRCLE-1, # 52, SECTOR 4, CHANDIGARH. PARWANOO. PAN: ACVPD4864C & ITA NO.1153/CHD/2012 (ASSESSMENT YEAR : 2008-09) SH.RAJAN DHIR, VS. THE A.C.I.T., # 52, SECTOR 4, CENTRAL CIRCLE-1, PARWANOO. CHANDIGARH. PAN: ACVPD4864C (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI TEJ MOHAN SINGH DEPARTMENT BY : SHRI MANOJ MISHRA, CIT DR 2 DATE OF HEARING : 26.04.2016 DATE OF PRONOUNCEMENT : 06.06.2016 O R D E R PER RANO JAIN, A.M . : THESE CROSS APPEALS ARE DIRECTED AGAINST THE SEPARATE ORDERS OF LEARNED COMMISSIONER OF INCOME T AX (CENTRAL), GURGAON DATED 30.8.2012, RELATING TO ASS ESSMENT YEARS 2007-08 AND 2008-09 RESPECTIVELY. ITA NO.1070/CHD/2012 (REVENUES APPEAL) : 2. THE GROUND NO.1 RAISED BY THE REVENUE READS AS UNDER : (I) WHETHER THE CIT(A) IS JUSTIFIED IN LAW AN ON FA CTS IN DELETING ADDITION OF RS. 9,50,000/- ON ACCOUNT OF C ASH DEPOSITS IN BANK ACCOUNT NO. 10820 (OLD ACCOUNT NO. 20439)? 3. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS OBSERVED THAT THE ASSESSEE HAD MADE TOTAL DEPOSIT O F RS.24,50,292/-, AGAINST WHICH THE SURRENDER WAS MAD E ONLY OF RS.15,00,292/-. THE VIEW OF THE ASSESSING OFFIC ER WAS THAT AN FDR OF RS.9,50,000/- WAS MADE ON 29.11.2006 OUT OF CASH DEPOSITED. THE SUBMISSION OF THE ASSESSEE WAS THAT THE AMOUNT OF RS.9.5 LACS WAS A CASH WITHDRAWAL BY WAY OF A 3 LOOSE CHEQUE AND THAT THE SAME WAS RE-DEPOSITED AS ON 21.3.2007 AND 22.3.2007. THE ASSESSING OFFICER IN THIS WAY, MADE AN ADDITION OF RS.9,50,000/-. 4. BEFORE THE CIT (APPEALS), THE ASSESSEE CONTENDE D THAT THE AMOUNT WAS A CASH WITHDRAWAL BY WAY OF A L OOSE CHEQUE AND WHILE MAKING SUCH ADDITION PEAK CREDIT C AN BE ADDED AFTER GIVING BENEFIT OF THE WITHDRAWALS WHICH ARE AVAILABLE FOR DEPOSITS. IN THE REMAND REPORT SUBMI TTED BY THE ASSESSING OFFICER BEFORE THE CIT (APPEALS), HE STATED THAT A LETTER WAS WRITTEN TO THE BANK SEEKING INFOR MATION REGARDING WITHDRAWAL BY CASH AND THE BANK HAS SUBMI TTED PHOTOCOPY OF THE CHEQUE DATED 27.11.2006. FURTHER, ON CLARIFICATION SOUGHT FROM THE BANK REGARDING FIXED DEPOSIT OF RS.9,50,000 ON 29.11.2006, THE BANK VIDE ITS LETTER NO.TAKSAL:33/44 DATED 12.5.2011 VERIFIED THAT NO FI XED DEPOSIT WAS MADE BY THE ASSESSEE OUT OF CASH WITHDR AWAL OF RS.9,50,000/-. IN VIEW OF THE CONTENTS OF THE REMA ND REPORT, THE CIT (APPEALS) DELETED THE ADDITION. 5. AGAINST THIS, THE DEPARTMENT HAS COME UP IN APPEAL BEFORE US. THE LEARNED D.R. RELIED ON THE O RDERS OF THE LOWER AUTHORITIES, WHILE THE LEARNED COUNSEL FO R THE ASSESSEE RELIED ON THE REMAND REPORT FILED BY THE A SSESSING OFFICER AND STATED THAT THE SOURCE OF AMOUNT OF RS.9,50,000/- HAS BEEN DULY EXPLAINED. 6. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BO TH THE PARTIES, PERUSED THE FINDINGS OF THE AUTHORITIE S BELOW 4 AND CONSIDERED THE MATERIAL AVAILABLE ON RECORD. O N PERUSAL OF THE ORDER OF THE CIT (APPEALS), WE DO NOT FIND A NY INFIRMITY IN THE SAME AS HIS DECISION IS BASED ON R EMAND REPORT FILED BY THE ASSESSING OFFICER. IN THE REMA ND PROCEEDINGS, THE ASSESSING OFFICER HAD CALLED FOR INFORMATION FROM THE BANK AND VERIFIED THE CONTENTI ON RAISED BY THE ASSESSEE. IN THIS VIEW, WE DO NOT INTEND TO INTERFERE WITH THE ORDER OF THE CIT (APPEALS). 7. THE GROUND RAISED BY THE REVENUE IS DISMISSED. 8. GROUND NOS. 2 AND 3 RAISED BY THE REVENUE READ AS UNDER : (II) WHETHER THE CIT(A) IS JUSTIFIED IN LAW AN ON F ACTS IN DELETING ADDITION OF RS. 27,00,000/- ON ACCOUNT OF DEPOSITS IN BANK ACCOUNT NO. 20057176 MAINTAINED IN BANK OF BARODA PARWANOO? (III) WHETHER THE CIT(A) IS JUSTIFIED IN LAW AN ON F ACTS IN DELETING ADDITION OF RS. 11,00,300/- ON ACCOUNT OF CASH DEPOSITS IN BANK ACCOUNT MAINTAINED WITH BANK OF BA RODA PARWANOO? 9. WITH RESPECT TO THE FACTS TO THE EXTENT RELEVAN T FOR ADJUDICATING THESE TWO GROUNDS WERE THAT THERE WERE CERTAIN DEPOSITS IN THE BANK ACCOUNT, WHICH AS PER THE ASSE SSING OFFICER WERE UN-DISCLOSED AND ADDITIONS WERE MADE. 10. BEFORE THE CIT (APPEALS), THE CONTENTION OF TH E ASSESSEE WAS THAT IN SUCH CIRCUMSTANCES, ONLY ADDIT ION TO THE EXTENT OF PEAK CREDIT IN SUCH BANK ACCOUNT SHOU LD BE SUSTAINED. THE ASSESSING OFFICER IN REMAND REPORT THOUGH 5 ASSAILED THE SUBMISSIONS OF THE ASSESSEE, THE CIT ( APPEALS) ALLOWED THESE GROUNDS PARTLY IN FAVOUR OF THE ASSES SEE DIRECTING THE ASSESSING OFFICER TO DETERMINE THE PE AK CREDIT OF THE RESPECTIVE BANK ACCOUNTS AND SUSTAINED THE A DDITION TO THAT EXTENT. 11. AGAINST THIS ADDITION, THE DEPARTMENT HAS COME UP IN APPEAL BEFORE US. THE LEARNED D.R. RELIED ON THE ORDER OF THE ASSESSING OFFICER, WHILE THE LEARNED COUNSEL FOR THE ASSESSEE RELIED ON THE ORDER OF THE LEARNED CIT (AP PEALS). 12. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF B OTH THE PARTIES, PERUSED THE FINDINGS OF THE AUTHORITIE S BELOW AND CONSIDERED THE MATERIAL AVAILABLE ON RECORD. THE RELEVANT FINDINGS OF THE CIT (APPEALS) IN REGARD TO THESE GROUNDS ARE AT PAGE 5, PARA 5.3 OF HER ORDER, WHICH READ AS UNDER : 5.3. 1 HAVE CAREFULLY CONSIDERED THE RIVAL CONTENT IONS. THE DECISIONS RELIED UPON BY THE ASSESSEE VIZ. ACIT VS. BALDEV RAJ CHARLA & ORS. 18 DTR (DEL) (TRIB) 413; S.R. VENKATA RATNAM VS. CIT 127 ITR 807; SMT. SAROJ SIRSELWALA VS. ITO 45TT] 70 1 (ITAT JAIPUR); SHRI PANKAJ BANSAL VS. ITO ITA NO. 781/ CHANDI/ 201 1 A.Y. 2007- 08 HAVE ALSO BEEN SEEN. NO DOUBT THE ASSESSEE WAS R EQUIRED TO PROVIDE EVIDENCE TO ENABLE THE LD. AO TO EXAMINE, FOR DETERMINING, INTER-ALIA, THE PEAK CREDIT. HOWEVER IT IS A SETTLED PRINCIPAL OF LAW TO GIVE THE BENEFIT OF PEAK CREDIT I N SUCH CIRCUMSTANCES WHERE THE BANK ACCOUNTS REFLECT WITHDRA WALS AS WELL AS CASH DEPOSITS DURING THE YEAR AND WHERE THE COMPLETE STATEMENT FOR THE YEAR IS AVAILABLE. IT CANNOT ALSO B E RULED OUT THAT THE WITHDRAWALS WERE RE-DEPOSITED DESPITE THE T IME-GAP IN THE ABSENCE OF ANY CONTRARY FINDING BY THE LD. AO T HAT THE WITHDRAWALS WERE INVESTED/EXPENDED FOR SOME OTHER PU RPOSE. 6 HENCE THE LD. AO, WHILE GIVING APPEAL EFFECT, IS DIRE CTED TO DETERMINE THE PEAK CREDIT FOR THE ABOVE MENTIONED BA NK ACCOUNTS OF THE ASSESSEE. CONSEQUENTLY, GROUND NO 6 STANDS ADJUDICATED IN FAVOUR OF THE ASSESSEE. THE ASSESSEE PARTLY SUCCEEDS ON THESE GROUNDS OF APPEAL. 13. ON PERUSAL OF THE SAME, WE DO NOT FIND ANY INFIRMITY SINCE WE SEE THAT THERE ARE REGULAR DEPOS ITS AND WITHDRAWALS IN THE SAID ACCOUNT. THEREFORE, IN SUC H A SCENARIO, ONLY ADDITION TO THE EXTENT OF PEAK CREDI T COULD BE MADE. THE GROUND NOS.2 AND 3 RAISED BY THE REVENUE ARE DISMISSED. 14. THE GROUND NOS.4, 5 AND 6 ARE IN SUPPORT OF GROUND NOS.1, 2 AND 3, THEREFORE, NO SEPARATE ADJUD ICATION IS REQUIRED. 15. THE APPEAL OF THE REVENUE IS DISMISSED. ITA NO.1152/CHD/2012 (ASSESSEES APPEAL) : 14. THE GROUND NOS.1 AND 2 RAISED BY THE ASSESSEE READ AS UNDER : 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AS WELL AS ON FACTS IN SUSTAINING THE ADD ITION OF RS.27,00,000,- AND RS.11,00,300/- ON ACCOUNT OF DEPOSITS IN BANK ACCOUNT MAINTAINED WITH BANK OF BA RODA, PARWANOO WITHOUT APPRECIATING THE EXPLANATIONS REND ERED THOUGH AT THE SAME TIME BENEFIT FOR PEAK CREDIT HAS BEEN GIVEN WHICH IS ARBITRARY AND UNJUSTIFIED. 2. THAT THE ADDITIONS OUGHT TO HAVE BEEN DELETED IN TOT ALITY AS THERE WERE SUFFICIENT FUNDS AVAILABLE FOR 7 DEPOSITS IN THE ACCOUNTS AND AS SUCH THE ADDITIONS SUSTAINED ARE ARBITRARY AND UNJUSTIFIED. 15. THE ISSUE IN THESE GROUNDS IS SAME, WHICH WE H AVE ADJUDICATED IN DEPARTMENTAL APPEAL IN ITA NO.1070/CHD/2012 IN GROUND NOS.2 AND 3, WHEREBY WE HAD DECLINED TO INTERFERE WITH THE ORDER OF THE CIT (AP PEALS). IN VIEW OF THAT, GROUND NOS.1 AND 2 RAISED BY THE ASSE SSEE ARE DISMISSED. 16. THE GROUND NOS.3, 4 AND 5 READ AS UNDER : 3. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS FURTHER ERRED IN LAW AS WELL AS ON FACTS IN UPHOLDING THE ADDITION OF RS.3,00,000/- ON ACCOUNT OF DEPOSITS IN BANK ACCOUNT MAINTAINED WITH BANK OF BARODA, PARWANOO WITHOUT APPRECIATING THE EXPLANATI ONS RENDERED WHICH IS ARBITRARY AND UNJUSTIFIED. 4. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS FURTHER ERRED IN LAW AS WELL AS ON FACTS IN UPHOLDING THE ADDITION OF RS.3,00,000/- ON ACCOUNT OF DEPOSITS IN BANK ACCOUNT MAINTAINED WITH BANK OF BARODA, PARWANOO WITHOUT APPRECIATING THE EXPLANATI ONS RENDERED WHICH IS ARBITRARY AND UNJUSTIFIED. 5. THAT WITHOUT ANY CONCESSION, THE COMMISSIONER OF I NCOME TAX (APPEALS) HAS FAILED TO CALCULATE THE PEAK IN RESPECT OF THE ENTRIES IN BANK ACCOUNTS AND ADDITIONS HAVE BEEN MADE WITHOUT GIVING ANY BENEFIT OF THE WITHDRAWALS MADE WHICH CASH WAS AVAILABLE FOR RE- DEPOSIT IN ALL THE ABOVEMENTIONED ACCOUNTS IN GROUND NOS. 3 AND 4 SUPRA. 17. THE GROUND NO.4 IS RELATED TO GROUND NO.3 RAI SED BY THE DEPARTMENT IN ITA NO.1070/CHD/2012. 8 18. BRIEFLY, THE FACTS ARE THAT THE ASSESSING OFFI CER OBSERVED THAT ACCOUNT NO.44 IS IN THE NAME OF WIFE OF THE ASSESSEE AND ACCOUNT NO.67 IS IN THE NAME OF THE AS SESSEE HIMSELF. IN BOTH THESE ACCOUNTS, CASH DEPOSITS OF RS.3 LACS HAVE BEEN MADE AS ON 23.2.2007. THE EXPLANATION OF THE ASSESSEE WAS THAT THE SOURCES OF THESE DEPOSITS WER E FROM THE CASH WITHDRAWALS FROM ACCOUNT NO.6678 IN THE NA ME OF THE ASSESSEE AS ON 18.1.2006 AND 23.8.2005. THE AS SESSING OFFICER MADE ADDITION OF AN AMOUNT OF RS.3 LACS, WH ICH THE ASSESSEE CARRIED IN APPEAL BEFORE THE LEARNED CIT ( APPEALS). THE SAME SUBMISSIONS AS TO THE DEPOSITS BEING MADE OUT OF CASH WITHDRAWALS FROM ACCOUNT NO.6678 WERE MADE BEF ORE THE CIT (APPEALS). THE CIT (APPEALS) SENT THE MATT ER TO THE ASSESSING OFFICER IN REMAND. THE ASSESSING OFFICE R IN HIS REMAND REPORT STATED THAT THE SAID PLEA OF THE ASSE SSEE IS NOT TENABLE AS NO SUCH SUBMISSION WAS MADE AT THE T IME OF ASSESSMENT AND COPY OF ACCOUNT NO.6678 FILED AT THI S STAGE TANTAMOUNTS TO ADDITIONAL EVIDENCE WHICH COULD NOT BE ADMITTED BY THE CIT (APPEALS). AFTER CONSIDERING T HE SUBMISSIONS OF THE ASSESSEE AND REMAND REPORT OF TH E ASSESSING OFFICER, THE CIT (APPEALS) DECIDED THE IS SUE AGAINST THE ASSESSEE STATING THAT THE STANCE OF THE ASSESSEE LINKING UP THE WITHDRAWALS FROM ONE ACCOUNT TO THE OTHER ACCOUNT IS NOT PLAUSIBLE BECAUSE OF THE TIME GAP AS WELL AS INVOLVEMENT OF DIFFERENT BANK ACCOUNTS. FURTHER, I T WAS 9 STATED THAT EVEN THE BANK ACCOUNT WAS REQUISITIONED UNDER SECTION 133(6) OF THE ACT AS THE ASSESSEE HAD NOT D ISCLOSED THE SAME DESPITE THE ASSESSING OFFICER ASKING HIM T O FURNISH DETAILS OF ALL BANK ACCOUNTS STANDING IN HIS NAME A ND IN THE NAMES OF HIS FAMILY MEMBERS. IN THIS WAY, ADDITION WAS SUSTAINED BY THE CIT (APPEALS). 19. AGGRIEVED BY THIS, THE ASSESSEE HAS COME UP IN APPEAL BEFORE US. THE LEARNED COUNSEL FOR THE ASSE SSEE REITERATED THE SUBMISSIONS THAT THE CASH DEPOSITS W ERE MADE FROM THE CASH WITHDRAWALS MADE BY THE ASSESSEE FROM ANOTHER ACCOUNT. 20. THE LEARNED D.R. RELIED ON THE ORDER OF THE C IT (APPEALS). 21. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF B OTH THE PARTIES, PERUSED THE FINDINGS OF THE AUTHORITIE S BELOW AND CONSIDERED THE MATERIAL AVAILABLE ON RECORD. THE RELEVANT FINDINGS OF THE CIT (APPEALS) ARE AT PARA 6.1, WHICH READ AS UNDER : 6.1 1 HAVE EXAMINED THE SUBMISSIONS OF THE ASSESSE E AND THE IMPUGNED ASSESSMENT ORDER FROM THE ABOVE FACTS IT EMERGES THAT THE CASH WITHDRAWALS IS MADE FROM AN UNDISCLOSED BANK ACCOUNT OF THE ASSESSEE BEARING ACC OUNT NO. 6678 ON 18.01.06 AND 3.08.05,. WHICH IS CLAIMED TO BE THE SOURCE OF CASH DEPOSITS IN ACCOUNT NO. 44 AND 67 ON THE SAME DATE 23.02.07. THIS EXPLANATION DEFIES LOG IC. IT IS NOT ONLY A MATTER OF LINKING UP THE WITHDRAWALS AND DEPOSITS BUT THERE HAS TO BE-SOME EVIDENCE OR SOME PLAUSIBLE EXPLANATION FOR MAKING SUCH TRANSFERS, BESID ES 10 THE LONG-TIME GAP AS WELL AS THE INVOLVEMENT OF DIFFE RENT BANK ACCOUNTS. THIS BANK ACCOUNT NO. 6678 WITH BOB, PARWANOO FROM WHERE THE ALLEGED WITHDRAWAL WAS MADE IN CASH, AS PER THE BANK STATEMENT WAS OPERATED FOR THE PERIOD W.E.F 27.3.2002 TO 6.3.2006 (CLOSED). WHILE ADJUDICATING APPEALS FOR AY 2002-03 TO AY 2006-07, THE DEPOSITS IN THIS BANK ACCOUNT HAVE BEEN CONFIRMED T O A LARGE EXTENT FOR REASONS CONTAINED THEREIN. IT IS PER TINENT TO MENTION HERE THAT THE STATEMENT OF THIS BANK ACCOUNT WAS REQUISITIONED U/S 133(6) AS THE ASSESSEE HAD NOT DISCLOSED THE SAME DESPITE THE LD-AO ASKING HIM TO FURNISH DETAILS OF ALL BANK ACCOUNTS STANDING IN HIS NAME A ND IN THE NAMES OF THE FAMILY MEMBERS. THE LD. AO HAS RAI SED THE QUESTION OF ADDITIONAL EVIDENCE AS THE ASSESSEE HAD NO T PUT FORTH THIS EXPLANATION DURING THE ASSESSMENT PROCEEDINGS. BE THAT AS IT MAY, I HOLD THE CLARIFICA TION OFFERED BY THE ASSESSEE AT THIS JUNCTURE AS UNTENAB LE. THE ASSESSEE HAS ALSO NOT ELUCIDATED UNDER WHICH CONDITI ON OF RULE 46A DOES HIS CASE FALL, SO I AM AFRAID THE PLEA THAT THE LD AO HAD MADE NO SPECIFIC QUERY IN RESPECT OF THES E ENTRIES AND THE PLEA THAT ADDITIONAL EVIDENCE WHICH A RE FROM CONTEMPORANEOUS RECORD OF THE BANK BE ADMITTED CANNOT BE ACCEPTED. THE APPEAL FOR PEAK CREDIT OF TH ESE TWO ACCOUNTS CANNOT ALSO BE ALLOWED AS I FIND THAT T HE SAME AMOUNTS OF RS. 3 LACS HAVE BEEN WITHDRAWN FROM THE ACCOUNT NOS 44 AND 67 RESPECTIVELY BEFORE THE END OF THE FINANCIAL YEAR. THIS IS THE ONLY TRANSACTION FOR THE F Y 2006- 07 AS THESE ACCOUNTS WERE BOTH OPENED ON 29.1.2007 AN D AS ON 31.3.2007, THE CLOSING BALANCE WAS RS. 500/- EAC H WHICH IS THE REQUISITE FEE FOR OPENING THE BANK ACCOU NTS. ACCORDINGLY, THE ADDITIONS MADE BY THE AO IN THE GROUNDS OF APPEAL NO. 4 AND 5 ARE SUSTAINED. 22. ON PERUSAL OF THE SAME, WE DO NOT FIND ANY INFIRMITY AS IT IS A FACT ON RECORD THAT THE ASSESS EE DID NOT FURNISH ANY OF THE BANK ACCOUNTS BEFORE THE ASSESSI NG 11 OFFICER EVEN WHEN THE ASSESSING OFFICER KEPT ON ASK ING FOR THE SAME. THE ASSESSING OFFICER HAD REQUISITIONED THESE ACCOUNTS UNDER SECTION 133(6) OF THE ACT FROM THE B ANK ITSELF. AT THE TIME OF ASSESSMENT PROCEEDINGS, THE ASSESSEE DID NOT COME OUT WITH THE EXPLANATION WHICH HE OFFE RED BEFORE THE CIT (APPEALS) AND EVEN THE EVIDENCE IN T HE FORM OF BANK ACCOUNT NO.6678 BEING FILED BEFORE THE CIT (APPEALS) FOR THE FIRST TIME WAS NOT AVAILABLE READILY. IN THE SAID CIRCUMSTANCES, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT (APPEALS). THE GROUNDS RAISED BY THE ASSES SEE ARE DISMISSED. 23. THE GROUND NO.6 RAISED BY THE ASSESSEE READS A S UNDER : 6. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AS WELL AS ON FACTS IN MAKING UPHOLDING THE ADDITION OF RS.3,53,645/- ON ACCOUNT OF JEWELLERY O N THE BASIS OF SOME INVOICES FOUND AT THE TIME OF SEARCH B RUSHING ASIDE THE EXPLANATIONS RENDERED THOUGH GIVING THE BE NEFIT OF TELESCOPING WHICH IS ARBITRARY AND UNJUSTIFIED. 24. THE ASSESSING OFFICER MADE ADDITION OF AN AMOU NT OF RS.3,53,645/- ON ACCOUNT OF INVESTMENT MADE BY T HE ASSESSEE IN JEWELLERY. 25. BEFORE THE CIT (APPEALS), THE ASSESSEE SUBMITT ED THAT INVOICES FOUND AT THE TIME OF SEARCH DO NOT PE RTAIN TO HIM NOR ANY OF HIS FAMILY MEMBERS. IT WAS FURTHER CONTENDED THAT EVEN IF THE ADDITION WAS TO BE MADE, THE SAME SHOULD BE TELESCOPED IN THE ADDITION OF RS.28, 97,650/- MADE IN RESPECT OF CASH AND JEWELLERY FOUND AT THE TIME OF 12 SEARCH. THE CIT (APPEALS) DISMISSED THE GROUND OF THE ASSESSEE STATING THAT INVESTMENTS WERE FOUND AT THE RESIDENCE OF THE ASSESSEE AND THE PRESUMPTION WAS A GAINST HIM, WHICH HE HAD NOT BEEN ABLE TO REBUT. 26. AGGRIEVED BY THIS, THE ASSESSEE HAS COME UP IN APPEAL BEFORE US. THE LEARNED COUNSEL FOR THE ASSE SSEE REITERATED THE FACT THAT THE RETAIL INVOICE OF M/S TANISHQ FOUND AT THE RESIDENTIAL PREMISES OF THE ASSESSEE D ID NOT BELONG TO HIM. 27. THE LEARNED D.R. RELIED ON THE ORDER OF THE CI T (APPEALS). 28. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF B OTH THE PARTIES, PERUSED THE FINDINGS OF THE AUTHORITIE S BELOW AND CONSIDERED THE MATERIAL AVAILABLE ON RECORD. T HE RELEVANT FINDINGS OF THE CIT (APPEALS) AT PAGE 8 PA RA 7.1, WHICH READS AS UNDER : 7.1 I HAVE GONE THROUGH THE IMPUGNED ASSESSMENT ORDER AND THE ASSESSEE'S SUBMISSION. IT IS A FACT THA T THREE RETAIL INVOICES OF M/S TANISHQ DATED 21.10,2006, 23.06.2006 AND 22.06.2006 WERE FOUND FROM THE RESIDENT OF THE ASSESSEE DURING THE SEARCH OPERATION. THE ASSESSEE'S ATTEMPT TO DISOWN THESE DOCUMENTS HA S NO STRONG GROUND. NO EVIDENCE HAD BEEN FURNISHED BY THE ASSESSEE EITHER, THAT THESE DO NOT BELONG TO HI M AND THAT THESE BELONGED TO SOME OTHER PERSON. IT IS HOWEVER SEEN THAT THE VALUE OF THE INVOICED JEWELLE RY IS LESS THAN THE DECLARATION ON ACCOUNT OF JEWELLERY. HENCE, THOUGH I AM CONFIRMING THE ADDITION OF RS. 3,53,645/- BY THE LD. AO, HOWEVER, ON TAKING A TELESCOPIC VIEW, NO 13 FURTHER AND SEPARATE ADDITION IS MADE ON THIS ACCOUNT. THE ASSESSEE SUCCEEDS IN THIS GROUND OF APPEAL. 29. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF T HE CIT (APPEALS) AS THERE IS NO DISPUTE TO THE FACT TH AT THREE RETAIL INVOICES OF M/S TANISHQ WERE FOUND DURING TH E COURSE OF SEARCH FROM THE RESIDENCE OF THE ASSESSEE. THE PRESUMPTION OF THE DOCUMENTS FOUND DURING THE COURS E OF SEARCH IS AGAINST THE ASSESSEE. IT IS PRESUMED THA T THE DOCUMENT BELONG TO THE ASSESSEE THOUGH THE PRESUMPT ION IS A REBUTTABLE ONE BUT WE OBSERVE THAT NOWHERE DURING THE PROCEEDINGS BEFORE THE ASSESSING OFFICER AS WELL AS THE CIT (APPEALS) THE ASSESSEE HAD BEEN ABLE TO REBUT THE S AME WITH THE COGENT EVIDENCE. THEREFORE, WE DO NOT FIND OUR SELVES INCLINED TO INTERFERE IN THE ORDER OF THE CIT (APPE ALS). THE GROUND OF THE ASSESSEE IS DISMISSED. 30. GROUND NO.7 IS CONSEQUENTIAL IN NATURE AND GROUND NO.8 IS GENERAL AND, HENCE NEED NO ADJUDICAT ION. 31. THE APPEAL OF THE ASSESSEE IS DISMISSED. ITA NO.1071/CHD/2012 (REVENUES APPEAL) : 32. THE GROUNDS OF APPEAL RAISED BY THE REVENUE RE AD AS UNDER : (I) WHETHER THE CIT(A) IS JUSTIFIED IN LAW AN ON FA CTS IN DELETING ADDITION OF RS. 60,48,511/- BY GIVING BENE FIT OF PEAK CREDIT FOR CASH DEPOSITS IN BANK ACCOUNTS NOS. 108 20, 44 & 67 WITH BANK OF BARODA AT PARWANOO AGAINST CLAIM OF MUCH EARLIER CASH WITHDRAWALS IN ABSENCE OF CASH FLOW 14 STATEMENT AND BOOKS OF ACCOUNTS BEING PRODUCED BEFO RE THE ASSESSING OFFICER? (II) WHETHER THE CIT(A) IS JUSTIFIED IN LAW AN ON FA CTS IN DELETING ADDITION OF RS. 57,86,964/- ON ACCOUNT OF BENEFIT OF PEAK CREDIT BEING GIVEN FOR CASH DEPOSITS IN BAN K ACCOUNT NO. 20442 WITH BANK OF BARODA AT PARWANOO, STATEMENT AND BOOKS OF ACCOUNTING BEING PRODUCE BEF ORE THE ASSESSING OFFICER. (III) WHETHER CIT(A) HAS ERRED IN ALLOWING BENEFIT OF CASH WITHDRAWAL/PEAK CREDIT WITHOUT INSISTING FOR CONSOLID ATE 'CASH FLOW STATEMENT' IN CASE WHERE THE ASSESSEE ADMITTEDLY WAS MAINTAINING MULTIPLE (SIX IN THIS CASE ) UNDISCLOSED BANK ACCOUNTS WITH CASH DEPOSIT ENTRIES REGULARLY? (IV) WHETHER CIT(A) HAS ERRED IN ALLOWING BENEFIT O F CASH WITHDRAWAL FOR SETTING OFF AGAINST ADDITION MADE TO THE TAXABLE INCOME OF ACCOUNT OF UNEXPLAINED DEPOSITS I N BANK ACCOUNTS WITHOUT CONSIDERING IMPORTANT AND VITAL FAC TS THAT THERE WERE UNREASONABLY LARGE TIME GAPS BETWEEN THE CASH WITHDRAWAL AND ALLEGED REDEPOSIT? (V) WHETHER CIT(A) ERRED IN LAW IN NOT APPRECIATING THAT BURDEN OF PROOF THAT DEPOSITS WERE OUT OF CASH WITHD RAWN WAS UPON THE ASSESSEE AND NOT UPON THE AO. CONSEQUENTLY, IT WAS UNJUSTIFIED ON THE PART OF CIT (A) TO KNOCK DOWN ADDITIONS BY REFERRING TO THE REMAND REPO TS OF THE AO WHO HAS ALREADY DISCHARGED INITIAL BURDEN OF PROOF AND IT WAS THE ASSESSEE WHO FAILED TO BRING ON RECO RD EVIDENCE AND CIRCUMSTANCES THAT WITHDRAWN AMOUNT WA S USED FOR REDEPOSIT IN THE BANK ACCOUNTS? 33. THE FACTS OF THE CASE ARE THAT THERE WERE CERT AIN CASH DEPOSITS IN THE BANK ACCOUNT BEARING NOS.10820 , 44, 67 AND 20422 IN THE NAME OF THE ASSESSEE. THE ASSE SSING OFFICER MADE ADDITION OF THE CASH DEPOSITS IN TH E HANDS OF 15 THE ASSESSEE. 34. BEFORE THE CIT (APPEALS), APART FROM THE FACT THAT THE ASSESSEE TRIED TO DEFEND THE CASE ON MERITS, AN ALTERNATIVE PLEA AS REGARDS TO ADDITION TO BE SUSTA INED ONLY TO THE EXTENT OF PEAK CREDIT WAS ALSO RAISED. THE CIT (APPEALS) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND THE REMAND REPORT FILED BY THE ASSESSEE, SUSTAI NED THE ADDITION TO THE EXTENT OF PEAK CREDIT AND ALLOWED P ARTIAL RELIEF TO THE ASSESSEE. 35. AGGRIEVED BY THIS, THE DEPARTMENT HAS COME UP IN APPEAL BEFORE US. THE LEARNED D.R. RELIED ON THE O RDER OF THE ASSESSING OFFICER AND STATED THAT THE TOTAL CAS H DEPOSITS BEING UNEXPLAINED, THE ADDITION MADE BY THE ASSESSI NG OFFICER SHOULD BE SUSTAINED. 36. THE LEARNED COUNSEL FOR THE ASSESSEE RELIED ON THE ORDER OF THE CIT (APPEALS) AND STATED THAT THE ADDI TION ONLY TO THE EXTENT OF PEAK CREDIT CAN BE SUSTAINED. 37. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF B OTH THE PARTIES, PERUSED THE FINDINGS OF THE AUTHORITIE S BELOW AND CONSIDERED THE MATERIAL AVAILABLE ON RECORD. T HE RELEVANT FINDINGS OF THE CIT (APPEALS) ARE AT PAGE 5 PARA 6.2, WHICH READ AS UNDER : 6.2 COMING TO THE OTHER THREE ACCOUNTS, I FIND THAT THE BANK STATEMENTS FOR THE YEAR SUBMITTED REVEAL AT LEAST ONE DEBIT EACH 16 IN THE ACCOUNTS, THOUGH IT IS THE CASE OF THE LD AO THAT THERE WERE NO CASH WITHDRAWALS DURING THE YEAR. WHILE ADJU DICATING SIMILAR CIRCUMSTANCES IN APPEAL FOR THE IMMEDIATE PRECE DING YEAR, 1 HAVE GIVEN THE BENEFIT OF CALCULATING THE PEA K CREDIT THOUGH HOLDING THAT THE ASSESSEE WAS REQUIRED TO HA VE PROVIDED EVIDENCE TO ENABLE THE LD. AO TO EXAMINE FO R DETERMINING THE PEAK CREDIT. HOWEVER IT IS A SETTLED P RINCIPAL OF LAW TO GIVE THE BENEFIT OF PEAK CREDIT IN SUCH CIRCUM STANCES WHERE THE BANK ACCOUNTS REFLECT WITHDRAWALS AS WELL AS CASH DEPOSITS DURING THE YEAR AND WHERE THE COMPLETE STAT EMENT FOR THE YEAR IS AVAILABLE. IT CANNOT ALSO BE RULED OUT TH AT THE WITHDRAWALS WERE RE-DEPOSITED DESPITE THE TIME-GAP IN THE ABSENCE OF ANY CONTRARY FINDING BY THE LD. OA THAT THE WITHDRAWALS WERE INVESTED/EXPENDED FOR SOME OTHER PU RPOSE. THEREFORE IN THIS BACKDROP, THERE IS NO REQUIREMENT OF GOING INTO THE MANNER AND CIRCUMSTANCES OF DEPOSITS. HENCE THE LD. AO, WHILE GIVING APPEAL EFFECT, IS DIRECTED TO DETERMINE T HE PEAK CREDIT FOR THE ABOVE MENTIONED UNDISCLOSED BANK ACCOU NTS OF THE ASSESSEE. HOWEVER, IF THE SOURCE OF DEPOSIT IS STAT ED TO BE FROM THE BANK ACCOUNT NO: 6678, BOB, PARWANOO, THE SAME CAN NOT BE CONSIDERED FOR REASONS GIVEN IN THE APPELLATE ORDER FOR AY 2007- 08. CONSEQUENTLY, THE ASSESSEE PARTLY SUCCEEDS ON THIS GROUND OF APPEAL. 38. ON PERUSAL OF THE SAME, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT (APPEALS). WHEN WE OBSERVE THAT THE BANK ACCOUNT IS HAVING FREQUENT DEPOSITS A ND WITHDRAWALS, THERE IS NO JUSTIFICATION IN MAKING TH E ADDITION OF ALL THE DEPOSITS AS THE BENEFIT OF WITHDRAWAL AL SO MAY BE GIVEN TO THE ASSESSEE. THE THEORY OF PEAK CREDIT I S TO BE APPLIED. THEREFORE, WE DO NOT INTEND TO INTERFERE IN ORDER OF THE CIT (APPEALS). 39. THE APPEAL OF THE REVENUE IS DISMISSED. 17 ITA NO.1153/CHD/2012 (ASSESSEES APPEAL) : 40. THE GROUND NO.1 RAISED BY THE ASSESSEE READS A S UNDER : 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) H AS ERRED IN LAW AS WELL AS ON FACTS IN UPHOLDING THE ADDI TION OF RS.58,37,500 - ON ACCOUNT OF ALLEGED EXPENSES INCUR RED ON CONSTRUCTION ONLY ON THE GROUND THAT SINCE THE SA ME WAS SURRENDERED AND NOT DECLARED WHILE FILING OF RETURN WITHOUT APPRECIATING THE EXPLANATIONS RENDERED WHICH IS ARB ITRARY AND UNJUSTIFIED. 41. BRIEFLY, THE FACTS OF THE CASE ARE THAT DURING THE COURSE OF SEARCH & SEIZURE OPERATION CONDUCTED AT T HE PREMISES OF THE ASSESSEE, THE ASSESSEE MADE SURREND ER OF AN AMOUNT OF RS.2,58,41,912/- ON ACCOUNT OF FOLLOWING : I) ON ACCOUNT OF PURCHASE OF 36.5 ACRE LAND IN DISTT. HOSHIARPUR RS.70,27,312/- II) ON ACCOUNT OF UNDISCLOSED BANK ACCOUNTS MAINTAINED IN THE NAME OF HIS WIFE SMT. JYOTY DHIR RS.54,32,808/- III) ON ACCOUNT OF UNDISCLOSED BANK ACCOUNTS MAINTAINED IN THE NAME OF HIS SON SIKANDER RS.15,00,292/- IV) IN RESPECT OF INVESTMENT MADE IN CONSTRUCTION OF BUILDING AT PARWANOO RS.60,44,000/- V) ON ACCOUNT OF UNACCOUNTED EXPENDITURE MADE IN CASH RS.58,37,500/- TOTAL RS.2,58,41,912/- 42. OUT OF THIS AMOUNT OF RS.2,58,41,912/-, THE ASSESSEE HAS DECLARED AN AMOUNT OF RS.1,39,60,412/- IN ASSESSMENT YEAR 2007-08 AND RS.62,84,846/- IN ASSES SMENT 18 YEAR 2008-09 OUT OF THE TOTAL DISCLOSURE OF RS.1,18 ,81,500/- WHICH WAS DULY ADMITTED BY THE ASSESSEE IN HIS STAT EMENT RECORDED UNDER SECTION 132(4) OF THE ACT. ON BEING CONFRONTED BY THE ASSESSING OFFICER, THE ASSESSEE S TATED THAT THE AMOUNT OF RS.60,44,000/- SPENT IN THE CONS TRUCTION OF BUILDING AND AMOUNT OF RS.58,37,500/- ON ACCOUNT OF INVESTMENT MADE IN CASH INCURRED FOR EXPENSES BOTH ARE THE SAME THINGS. IT WAS FURTHER STATED THAT IN THE RET URN OF INCOME, THE EXPENSES ON ACCOUNT OF CONSTRUCTION HAV E BEEN CORRECTLY INCORPORATED. AS PER THE ASSESSING OFFIC ER, THE ASSESSEE HAS BACKED OUT FROM HIS STATEMENT, WHICH W AS GIVEN ON OATH DURING THE COURSE OF SEARCH AND IN TH IS WAY, AN ADDITION OF RS.58,37,500/- WAS MADE. 43. BEFORE THE CIT (APPEALS), SUBMISSIONS MADE BEF ORE THE ASSESSING OFFICER WERE REITERATED, WHICH WERE S ENT TO THE ASSESSING OFFICER IN REMAND BY THE CIT (APPEALS). IN THE REMAND REPORT, THE ASSESSING OFFICER CONTENDED THAT THIS IS NOT A CASE OF DOUBLE ADDITION AS THE AMOUNT WAS DIS CLOSED ON THE BASIS OF DOCUMENT. PAGE 16 OF AN ANNEXURE A -6, THIS DOCUMENT IS A CONSTRUCTED PAGE AS WHEN THE SEARCH P ARTY ENTERED, THE ASSESSEE TRIED TO TEAR THE PAGE AND EA T IT. THIS PAGE REPRESENTS THE TORN FRAGMENTS RECOVERED BY THE TEAM MEMBERS. THEREFORE, THIS PAGE APPARENTLY REFLECTS THE INCOME EARNED BY THE ASSESSEE. THE CIT (APPEALS) A FTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND REM AND REPORT CONFIRMED THE ADDITION. 44. AGGRIEVED BY THIS, THE ASSESSEE HAS COME UP IN 19 APPEAL BEFORE US AND REITERATED THE SUBMISSIONS MAD E BEFORE THE LOWER AUTHORITIES. 45. THE LEARNED D.R. RELIED ON THE ORDER OF THE CI T (APPEALS). 46. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF B OTH THE PARTIES, PERUSED THE FINDINGS OF THE AUTHORITIE S BELOW AND CONSIDERED THE MATERIAL AVAILABLE ON RECORD. T HE RELEVANT FINDINGS OF THE CIT (APPEALS) WITH REGARD TO THIS GROUND ARE AT PAGE 3 PARA 5.1, WHICH READ AS UNDER : 5.1 I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE ASSESSEE AND THE IMPUGNED ASSESSMENT ORDER. THE REMAND REPORT HAS ALSO BEEN SEEN. AS A REJOINDER, TH E ASSESSEE REITERATES ITS EARLIER WRITTEN SUBMISSION. IT I S ASSESSEE'S CASE THAT AT THE TIME OF SEARCH, THE ASSE SSEE SURRENDERED THE AMOUNT TOWARDS CONSTRUCTION OF BUILDIN G AT PARWANOO TWICE OVER AND REFERRED TO THE STATEMENT RECORDED ON 10.8.2007 VIZ. THE RESPONSE TO Q. NO: 3 1 WHEREIN AN AMOUNT OF RS.60,44,000/- HAD BEEN DISCLOSED TOWARDS CONSTRUCTION OF BUILDING AT PARWANOO IN THE CURRENT YEAR AND RS.58,37,500/- TOWARDS UNACCOUNTED EXPENDITURE MADE IN CASH IN THE CURRENT YEAR. IT WA S ARGUED THAT THE SURRENDERS SO MADE PERTAINED TO THE SAME EXPENDITURE INCURRED IN THE BUILDING CONSTRUCTION AT PARWANOO. SIMILAR STAND WAS TAKEN BY THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS WHEN STATEMENT WA S RECORDED U/S 131. IN THIS ENTIRE EPISODE, WHAT CANN OT BE DISCOUNTED IS THAT THE ASSESSEE TRIED TO DESTROY THIS PIECE OF DOCUMENT AS ITERATED IN THE REMAND REPORT. MOREOVER, IT IS THE ASSESSEE'S BURDEN TO PROOF THAT THE TWO SURRENDERS WERE ON THE SAME ASSET, BY LINKING UP THE ENTRIES AS THE CLAIM DURING THE APPEAL PROCEEDINGS IS THAT THE EXPENDITURE IS DEBITED IN THE BOOKS DURING THE SAM E 20 PERIOD. HENCE IT IS APPARENT THAT THE CLAIM OF THE ASSESSEE REMAINS UNSUBSTANTIATED. IT WAS MERELY A BA LD ASSERTION. THEREFORE, ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ADDITION ON THIS GROUND IS CONFIRMED. ASSESSEE FAILS IN THIS APPEAL. 47. ON PERUSAL OF THE SAME, WE DO NOT FIND ANY INFIRMITY AS THE ASSESSEE HIMSELF DURING THE COURSE OF SEARCH HAS DISCLOSED BOTH THE AMOUNTS OF RS.60,44,0 00/- AS WELL AS RS.58,37,500/-. THE STAND WAS CHANGED AT T HE TIME OF ASSESSMENT PROCEEDINGS. FURTHERMORE, THE BEHAVI OR OF THE ASSESSEE DURING THE COURSE OF SEARCH AND CHANGI NG STANCES BEFORE THE ASSESSING OFFICER ALSO CASTS ASP ERSIONS IN THE SUBMISSIONS MADE BY THE ASSESSEE. THEREFORE, W E ARE NOT INCLINED TO INTERFERE WITH THE ORDER OF THE CIT (APPEALS). THE GROUND OF APPEAL IS DECIDED AGAINST THE ASSESSE E. 48. THE GROUND NOS.2, 3 AND 4 RAISED BY THE ASSESS EE READ AS UNDER : 2. THAT THE LD. COMMISSIONER OF INCOME TAX(APPEALS) HAS ERRED IN LAW AS WELL AS ON FACTS IN SUSTAINING ADDITION O F RS.60,48,511/- ON ACCOUNT OF DEPOSITS IN BANK ACCOUNTS BEARING NOS. 10820, 44 AND 67 WITHOUT APPRECIATING T HE EXPLANATIONS RENDERED THOUGH AT THE SAME TIME BENEFI T FOR PEAK CREDIT HAS BEEN GIVEN WHICH IS ARBITRARY AND UNJUSTIFIED. 3. THAT THE LD. COMMISSIONER OF INCOME TAX(APPEALS) HAS ERRED IN LAW AS WELL AS ON FACTS IN SUSTAINING AN ADDITIO N OF RS.54,86,964/- ON ACCOUNT OF DEPOSITS IN BANK ACCOUNT MAINTAINED WITH BANK OF BARODA, PARWANOO WITHOUT APPRECIATING THE EXPLANATIONS RENDERED THOUGH AT TH E SAME 21 TIME BENEFIT FOR PEAK CREDIT. HAS BEEN GIVEN WHICH IS ARBITRARY AND UNJUSTIFIED. 4. THAT THE ADDITIONS OUGHT TO HAVE BEEN DELETED IN TOTALITY AS THERE WERE SUFFICIENT FUNDS AVAILABLE FOR DEPOSITS IN THE ACCOUNTS AND AS SUCH THE ADDITIONS SUSTAINED ARE AR BITRARY AND UNJUSTIFIED. 49. SINCE THESE GROUNDS HAVE BEEN ADJUDICATED BY U S IN THE APPEAL OF THE REVENUE IN ITA NO.1070/CHD/201 2 AND WE HAVE SUSTAINED THE ADDITION TO THE EXTENT OF PEA K CREDIT, THE GROUNDS RAISED BY THE ASSESSEE ARE DISMISSED. 50. THE GROUND NO.5 RAISED BY THE ASSESSEE READS A S UNDER : 5. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEAL S) HAS FURTHER ERRED IN LAW AS WELL AS ON FACTS IN SUSTAINI NG AN ADDITION OF RS. 10,06,080/- ON ACCOUNT OF JEWELLERY FOUND AT THE TIME OF SEARCH BRUSHING ASIDE THE EXPLANATIONS RENDERED WHICH IS ARBITRARY AND UNJUSTIFIED. 51. BRIEFLY, THE FACTS ARE THAT DURING THE COURSE OF ASSESSMENT, THE ASSESSEE WAS ASKED TO EXPLAIN THE S OURCE OF ACQUISITION OF JEWELLERY AND THE RESPONSE OF THE AS SESSEE WAS THAT ASSESSEE HAS GENERATED INCOME FROM ACTIVIT IES STATED IN THE STATEMENT RECORDED AT THE TIME OF SEA RCH. THE AMOUNT GENERATED OUT OF THESE ACTIVITIES WERE INVES TED IN JEWELLERY, CASH, BUILDING, BANK DEPOSITS, ETC. BRU SHING ASIDE THE SUBMISSIONS OF THE ASSESSEE THE ASSESSING OFFICER MADE ADDITION OF AN AMOUNT OF RS.15,06,080/- ON ACC OUNT OF JEWELLERY FOUND DURING THE COURSE OF SEARCH. 22 52. BEFORE THE CIT (APPEALS), SIMILAR SUBMISSIONS WERE RAISED. IN THE REMAND REPORT FILED BY THE ASSESSIN G OFFICER, THE ASSESSING OFFICER STATED THAT NO DETAILS OF SOU RCE OF ACQUISITION OF JEWELLERY HAS BEEN SUBMITTED BY THE ASSESSEE. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE A S WELL AS REMAND REPORT, THE CIT (APPEALS) GAVE RELIEF TO THE ASSESSEE ON ACCOUNT OF JEWELLERY TO THE EXTENT OF RS.5 LACS. 53. AGGRIEVED BY THIS, THE ASSESSEE HAS COME UP IN APPEAL BEFORE US. THE LEARNED COUNSEL FOR THE ASSE SSEE REITERATED THE SUBMISSIONS MADE BEFORE THE LOWER AUTHORITIES, WHILE THE LEARNED D.R. RELIED ON THE O RDER OF THE CIT (APPEALS). 54. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF B OTH THE PARTIES, PERUSED THE FINDINGS OF THE AUTHORITIE S BELOW AND CONSIDERED THE MATERIAL AVAILABLE ON RECORD. T HE RELEVANT FINDINGS OF THE CIT (APPEALS) ARE AT PAGES 7 AND 8, PARA 9.1, WHICH READ AS UNDER : 9.1 I HAVE GONE THROUGH THE RIVAL CONTENTIONS. THE J EWELLERY FOUND IN HE COURSE OF SEARCH WAS RS.15,06,080/- OF WHICH RS.5,14,783/- WORTH WAS SEIZED. THE SOURCE OF INVES TMENT IS STATED TO BE FROM ASSESSEES UNACCOUNTED BUSINESS TRANSACTIONS. IN THE REJOINDER, THE ASSESSEE FURTHE R SUBMITS THAT HE HAS BEEN MARRIED FOR A LONG TIME AND THAT H IS PARENTS ARE ALSO LIVING WITH HIM. FURTHER THAT THE JEWELLERY FOUND FORMED PART OF STRIDHAN OF HIS WIFE AND HIS MOTHER. UNDOUBT EDLY, IT IS ON THE ASSESSEE TO EXPLAIN THE SOURCE OF ACQUISITION OF THE JEWELLERY. IT IS ALSO AN ADMITTED FACT THAT THE ASSESSEE HAS INDU LGED IN 23 UNACCOUNTED BUSINESS TRANSACTIONS AND EARNINGS THER EOF HAVE BEEN INVESTED IN VARIOUS FORMS OF ASSETS. HOWEVER, ON E CANNOT ALSO OVERLOOK THE PRACTICE THAT IN THE INDIAN SOCIETY , GIFTS IN THE FORM OF MONETARY AS WELL AS JEWELLERY ARE GIVEN AT THE TIME OF MARRIAGES AND OTHER OCCASIONS. HENCE, ONE NEEDS TO FA IRLY CONSIDER THE GAMUT OF THE FACTS OF THE CASE VIZ. TH E FAMILY EARNINGS, THE STATUS OF THE FAMILY, THE CUSTOMS OF H INDU SOCIETY AND THE MARITAL PERIOD TO EXAMINE THE SOURCES OF ACQU ISITION OF JEWELLERY IF JUSTIFIABLE. ON ONE HAND IT WILL NOT BE COR RECT TO TAX THE ENTIRE VALUE OF JEWELLERY FOUND, BUT ON THE OTHER, IT IS APPARENT THAT THE ASSESSEE HAS EARNED INCOME WHICH H E HAS NOT BEEN OFFERING TO TAX OVER THE YEARS. THEREFORE C ONSIDERING THE FACTS AND CIRCUMSTANCES, 1 WOULD THINK THAT THE ASSE SSEE DESERVES A RELIEF OF RS. 5 LAKHS. ACCORDINGLY THE A DDITION ON ACCOUNT OF JEWELLERY IS TO BE RESTRICTED. 55. ON PERUSAL OF THE SAME, WE DO NOT FIND ANY INFIRMITY AS THE CIT (APPEALS) WAS FAIR ENOUGH TO G IVE THE ASSESSEE RELIEF OF RS.5 LACS CONSIDERING THE FACT T HAT HE HAS BEEN MARRIED FOR A LONG TIME AND HIS PARENTS ARE AL SO LIVING WITH HIM. THE JEWELLERY MAY ALSO FORM PART OF ISTR I DHAN OF HIS WIFE AND HIS MOTHER. HOWEVER, IT IS A FACT ON RECORD THAT THE ASSESSEE HAS MADE VERY GENERAL EXPLANATION WITH REGARD TO THE SOURCE OF JEWELLERY AND HAS NOT GIVEN ANY SP ECIFIC SOURCE OF ACQUIRING THE SAID JEWELLERY. THEREFORE, WE ARE NOT INCLINED TO INTERFERE WITH THE ORDER OF THE CIT (AP PEALS). THE GROUND OF APPEAL RAISED BY THE ASSESSEE IS DISM ISSED. 56. THE GROUND NO.6 RAISED BY THE ASSESSEE READS A S UNDER : 6. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) HAS FURTHER ERRED IN LAW AS WELL AS ON FACTS IN UPHOLDIN G ADDITION OF RS.13,91,570/- ON ACCOUNT OF CASH FOUND AT THE 24 TIME OF SEARCH BRUSHING ASIDE THE EXPLANATIONS REND ERED WHICH IS ARBITRARY AND UNJUSTIFIED. 57. THE BRIEF FACTS ARE THAT ADDITION OF AN AMOUNT OF RS.13,91,570/- WAS MADE ON ACCOUNT OF CASH FOUND DU RING THE COURSE OF SEARCH BY THE ASSESSING OFFICER, FOR WHICH THE EXPLANATION OF THE ASSESSEE BEFORE THE ASSESSING OF FICER AS WELL THE CIT (APPEALS) WAS THAT HE INCOME GENERATED BY THE ASSESSEE AS STATED BY HIM IN HIS STATEMENT RECORDED AT THE TIME OF SEARCH HAS EMANATED SUCH CASH. THE CIT (AP PEALS) CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICE R. 58. AGGRIEVED BY THIS, THE ASSESSEE HAS COME UP IN APPEAL BEFORE US AND AGAIN REITERATED THE SUBMISSIO NS WHICH WERE RAISED BEFORE THE ASSESSING OFFICER AND CIT (A PPEALS). 59. THE LEARNED D.R. RELIED ON THE ORDER OF THE CI T (APPEALS). 60. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF B OTH THE PARTIES, PERUSED THE FINDINGS OF THE AUTHORITIE S BELOW AND CONSIDERED THE MATERIAL AVAILABLE ON RECORD. T HE FINDINGS OF THE CIT (APPEALS) ARE AT PAGE 8 AT THE END OF PARA 9.1, WHICH READ AS UNDER : AS REGARDS THE CASH FOUND, I AM INCLINED TO UPHOLD T HE REASONING OF THE LD AO. THE ASSESSEE HAD INITIALLY TAK EN THE STAND THAT THE CASH WAS FROM AVAILABLE CASH IN H AND OF THE PROPRIETARY CONCERNS AND NOW THE EXPLANATION OFFERED IS THAT THEY EMANATED FROM THE BANK ACCOUNT 57176. THE CASH ACCOUNT FILED CANNOT BE ACCEPTED AS THIS IS A CASE WHERE ASSESSEE IS MAKING BALD ASSERTIONS. 25 CONSEQUENTLY, THE ADDITION OF RS.13,91,570/- AS UNEXPLAINED CASH FOUND IS CONFIRMED. 61. ON PERUSAL OF THE SAME WE DO NOT FIND ANY INFIRMITY SINCE THE ASSESSEE HAS GIVEN ONLY BALD SU BMISSION TO THE EFFECT THAT THE CASH WAS SOURCED OUT OF THE INCOME GENERATED BY HIM AS PER THE STATEMENT RECORDED AT T HE TIME OF SEARCH, WHILE THE FACT IS THAT THE ASSESSEE HAS NOT BEEN ABLE TO SUBSTANTIATE THE SOURCE OF CASH BEFORE THE ASSESSING OFFICER OR EVEN BEFORE THE CIT (APPEALS). THEREFOR E, WE ARE NOT INCLINED TO INTERFERE WITH THE ORDER OF THE CIT (APPEALS). THE GROUND OF APPEAL RAISED BY THE ASSESSEE IS DISM ISSED. 62. THE GROUND NO.7 RAISED BY THE ASSESSEE READS A S UNDER : 7. THAT THE LD. COMMISSIONER OF INCOME TAX(APPEALS) H AS ERRED IN LAW AS WELL AS ON FACTS IN UPHOLDING ADDITION OF RS.1,90,486/- ON ACCOUNT OF JEWELLERY ON THE BASIS OF SOME INVOICES FOUND AT THE TIME OF SEARCH BRUSHING ASIDE THE EXPLANATIONS RENDERED THOUGH GIVING THE BENEFIT OF TELESCOPING WHICH IS ARBITRARY AND UNJUSTIFIED. 63. THE FACTS, IN BRIEF, ARE THAT THE ADDITION OF RS.1,90,486/- WAS MADE ON THE BASIS OF SEIZED DOCUM ENTS ON ACCOUNT OF PURCHASE OF JEWELLERY FROM THE RESIDE NCE OF ASSESSEE. THE STAND OF THE ASSESSEE BEFORE THE ASS ESSING OFFICER AS WELL AS THE CIT (APPEALS) WAS THAT THE DOCUMENTS FOUND DURING THE SEARCH DID NOT BELONG TO HIM. REJ ECTING THE CONTENTION RAISED BY THE ASSESSEE THE CIT (APPE ALS) UPHELD THE ADDITION. 26 64. AGGRIEVED BY THIS, THE ASSESSEE HAS COME UP IN APPEAL BEFORE US AND AGAIN RAISED THE SAME CONTENTI ON, WHICH WERE RAISED BEFORE THE LOWER AUTHORITIES. 65. THE LEARNED D.R. RELIED ON THE ORDER OF THE CI T (APPEALS). 66. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF B OTH THE PARTIES, PERUSED THE FINDINGS OF THE AUTHORITIE S BELOW AND CONSIDERED THE MATERIAL AVAILABLE ON RECORD. T HE RELEVANT FINDINGS OF THE CIT (APPEALS) WITH REGARD TO THIS GROUND ARE AT PAGE 9 AT PARA 10.1, WHICH READ AS UN DER : 10.1 I HAVE GONE THROUGH THE IMPUGNED ASSESSMENT ORDER AND THE ASSESSEES SUBMISSION. SOME UNDATED DOCUMENTS EVIDENCING PURCHASE OF JEWELLERY HAD BEEN FOUND IN THE COURSE OF SEARCH. IT IS THE CASE OF THE ASSESSEE THAT THAT THESE DOCUMENTS ARE UNDATED DUMB DOCUMENTS WITHOUT ANY NARRATIONS AND WERE NOT IN THE HANDWRITING OF ANY OF THE FAMILY MEMBERS. THE ASSESS EE'S ATTEMPT TO DISOWN THESE DOCUMENTS HAS NO STRONG GRO UND. NO EVIDENCE HAD BEEN FURNISHED BY THE ASSESSEE EITHE R, THAT THESE DO NOT BELONG TO HIM AND THAT THESE BELO NGED TO SOME OTHER PERSON. IT IS HOWEVER SEEN THAT THE VALUE OF THE JEWELLERY IS LESS THAN THE DECLARATION ON ACCOUNT OF JEWELLERY. HENCE, THOUGH I AM CONFIRMING THE ADDITION O F RS.1,90,486/- BY THE LD. AO, HOWEVER, ON TAKING A TELESCOPIC VIEW, NO FURTHER AND SEPARATE ADDITION I S MADE ON THIS ACCOUNT. THE ASSESSEE SUCCEEDS IN THIS GROUND OF APPEAL. 27 67. ON PERUSAL OF THE SAME, WE DO NOT FIND ANY INFIRMITY SINCE THE ASSESSEE HAS NOT BEEN ABLE TO SUBSTANTIATE THE SOURCE OF ACQUISITION OF JEWELLERY AND IN VIEW OF THE PRESUMPTION UNDER SECTION 292C OF THE A CT BEING AGAINST THE ASSESSEE AS THE DOCUMENTS WERE FOUND DU RING THE COURSE OF SEARCH FROM THE PREMISES OF THE ASSES SEE, THE ADDITION IS TO BE SUSTAINED. WE ARE NOT INCLINED T O INTERFERE WITH THE ORDER OF THE CIT (APPEALS). THE GROUND OF APPEAL RAISED BY THE ASSESSEE IS DISMISSED. 68. THE GROUND NOS.7, 8 AND 9 RAISED BY THE ASSESS EE ARE GENERAL IN NATURE AND, HENCE NEED NO ADJUDICATI ON. 69. THE APPEAL OF THE ASSESSEE IS DISMISSED. 20. IN THE RESULT, THE APPEALS OF THE ASSESSEE IN ITA NOS.1152 & 1153/CHD/2016 AND THE APPEALS OF THE REV ENUE IN ITA NOS.1070 & 1071/CHD/2016 ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 6 TH DAY OF JUNE, 2016. SD/- SD/- (H.L.KARWA) (RANO JAIN) VICE PRESIDENT ACCOUNTANT MEMBER DATED : 6 TH JUNE, 2016 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/THE CIT/THE D R. ASSISTANT REGISTRAR, ITAT, CHANDIGARH