Gurjit singh, Mohali V. DCIT, Chandigarh

ITA 1171/CHANDI/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0080 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 year(s) 4 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-04-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 10-03-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 09-11-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Unexplained investment; Gift; Business income; Document seized; Additional evidence; Documents seized
• Section: 143(3); 133(6); 68; 69; 148; 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS.RANO JAIN, ACCOUNTANT MEMBER ITA NOS. 1171&1172/CHD/2012 A.YS.: 2008-09 & 2009-10 SHRI GURJIT SINGH, VS THE DCIT, HOUSE NO. 748, CENTRAL CIRCLE-1, PHASE 3B-1, CHANDIGARH. MOHALI. PAN: ANEPS7778N & ITA NOS. 1191&1192/CHD/2012 A.YS.: 2008-09 & 2009-10 THE ACIT, VS SHRI GURJIT SINGH, CENTRAL CIRCLE-1, HOUSE NO. 748, CHANDIGARH. PHASE 3B-1, MOHALI. PAN: ANEPS7778N (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ROHIT GOEL DEPARTMENT BY : SHRI MANOJ MISHRA DATE OF HEARING : 29.03.2014 DATE OF PRONOUNCEMENT : 08.04.2016 O R D E R PER BHAVNESH SAINI,JM ALL THE ABOVE CROSS APPEALS ARE DIRECTED AGAINST DIFFERENT ORDERS OF LD. CIT(APPEALS) CENTRAL, GURGA ON DATED 13.09.2012 FOR ASSESSMENT YEAR 2008-09 AND 2009-10. 2. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PARTIES, PERUSED THE FINDINGS OF AUTHORITIES BELOW AND 2 CONSIDERED THE MATERIAL AVAILABLE ON RECORD. THE AP PEALS ARE DECIDED AS UNDER. ITA 1171/2012 (A.Y. 2008-09) ASSESSEE'S APPEAL 3. THE LD. COUNSEL FOR THE ASSESSEE DID NOT PRESS GROUND NOS. 1, 2 AND 3 OF THE APPEAL. THE SAME ARE , THEREFORE, DISMISSED AS NOT PRESSED. 4. ON GROUND NO. 4, ASSESSEE CHALLENGED THE ADDITIO N OF RS. 1.78 CR ON THE BASIS OF ALLEGED CASH PAYMENT S ON THE BASIS OF PAGE NO. 41 OF ANNEXURE A-7 SEIZED FRO M 748, PHASE 3B-1, MOHALI. 5. BRIEFLY THE FACTS OF THE CASE ARE THAT ADDITION OF RS. 1.78 CR ON ACCOUNT OF PURCHASE OF AGRICULTURAL LAND MEASURING 104 ACRES NEAR MOHALI JOINTLY WITH SHRI G.KHEMKA BEING CASH PAYMENT MADE AS PER PAGE 41 OF ANNEXURE A-7 WAS MADE BY THE ASSESSING OFFICER. TH E ASSESSING OFFICER REPRODUCED THE COPY OF THE SEIZED PAPER AT PAGE 10 OF THE ASSESSMENT ORDER. FROM PAR A 13 OF THE ASSESSMENT ORDER, IT WAS EVIDENT THAT STATEM ENT OF ASSESSEE HAD BEEN RECORDED REGARDING SEIZED DOCUMENTS AND QUESTIONNAIRE WAS ALSO ISSUED. THE ASSESSING OFFICER REJECTED REPLY OF THE ASSESSEE AS THERE WERE APPARENT CONTRADICTIONS THEREIN LEADING TO INV OKING OF SECTION 292C OF THE ACT. THE ASSESSING OFFICER IN HIS COMMENTS STATED BEFORE LD. CIT(APPEALS) THAT ASSESS EE HAS CONTENDED THAT THE NOTINGS AS DETAILED UNDER 1 ST 3 BLOCK RELATES TO A PROPERTY TRANSACTION RELATED TO M/S PULSAR PROPERTIES PVT. LTD., 101 KAPADIA APARTMENT, MUMBAI WHO HAS ENTERED INTO AN AGREEMENT TO SELL FO R PURCHASE OF LAND AT VILLAGE BALALAI FROM GIAN CHAND , GURDEEP SINGH, JOGINDER SINGH, SHARMA AND SMT. HARJEET KAUR. THE SAID COMPANY HAS PAID ADVANCE TO THE TUNE OF RS. 2,16,40,000/- TO THESE PERSONS, HOW EVER, IN THE MEANTIME, DUE TO NON RECEIPT OF CLEARANCE FR OM FOREST DEPARTMENT AND MIS-REPRESENTATION OF SELLER, THE LAND COULD NOT BE REGISTERED IN THE NAME OF THE COM PANY AND BALANCE PAYMENT WAS NOT MADE. IN FACT, INITIAL LY IT WAS PLANNED TO OWN THIS LAND INDIVIDUALLY BY SHRI G.KHEMKA AND SHRI GURJIT SINGH, ASSESSEE AND SUBSEQUENTLY IT WAS DECIDED TO PURCHASE IN THE HAND S OF M/S PULSAR PROPERTIES PVT. LTD. AND CONTRIBUTIONS O F ASSESSEE AND SHRI G.KHEMKA WAS TRANSFERRED TO THIS COMPANY AND FROM THERE, THE ACTUAL PAYMENT WAS MADE . THE ASSESSEE HAS DEPOSITED A SUM OF RS. 45 LACS WIT H M/S PULSAR PROPERTIES PVT. LTD. AND INVESTMENTS IN PURCHASE OF LAND UNDER CONSIDERATION WAS MADE. TO VERIFY THE CONTENTION OF THE ASSESSEE, INFORMATION UNDER SECTION 133(6) WAS CALLED FOR AND COPY OF THE REPLY RECEIVED FROM THE PARTY WAS ENCLOSED. THE SAID COMP ANY HAS NOW EXPLAINED THAT PAYMENT OF RS. 2,16,40,000/- WAS MADE FOR PURCHASE OF BALALI LAND AND ASSESSEE A ND GAGAN KHEMKA ARE THE TWO DIRECTORS OF THE COMPANY. THE COMPANY HAS ALSO FURNISHED THE COPY OF THE ACCO UNT OF PAYMENTS MADE FOR PURCHASE OF BALALI LAND. THE 4 COMPANY HAS FURTHER SUBMITTED THAT ENTIRE AMOUNT PA ID FOR PURCHASE OF LAND AT BALALI WERE ROUTED THROUGH BOOKS OF ACCOUNT OF M/S PULSAR PROPERTIES PVT. LTD. AND N O PAYMENT HAS BEEN MADE FROM ASSESSEE AND GAGAN KHEMKA DIRECTLY TO THE LAND OWNERS. THE ASSESSEE FURTHER CONTENDED THAT SECOND BLOCK RELATES TO LAND AT VILLAGE SOHANA 22 ACRES PROPOSED TO BE ACQUIRED BY M/S RADIANT EMPIRE PVT.LTD., MOHALI. UNDER THIS SECOND BLOCK, TOTAL PAYMENT PROPOSED TO BE MADE AGAINST TH IS LAND COMES TO RS. 133 LACS AND AS PER RECORDS OF M/ S RADIANT EMPIRE PVT.LTD., TOTAL ADVANCE OF RS. 1,67,17,950/- WAS GIVEN AGAINST THIS SOHANA LAND. THE ASSESSEE FURTHER CONTENDED THAT HE AND HIS FAMILY MEMBERS AND ASSOCIATED CONCERNS HAS DEPOSITED WITH M/S RADIANT EMPIRE PVT.LTD. WHEREIN PAYMENT FOR ADVANCE FOR LAND AT VILLAGE SOHANA IS MADE THROUGH M/S RADIANT EMPIRE PVT.LTD. THE DCIT IN HIS COMMENTS STATED THAT IN ORDER TO VERIFY THE CONTENTIONS, INFORMATION UNDER SECTION 133(6) WAS CALLED FOR AND COPY OF THE REPLY RECEIVED FROM THE PARTY WAS ENCLO SED. THE COMPANY HAS SUBMITTED THAT IT HAS ADVANCED FOR PURCHASE OF 22 ACRES OF LAND AT VILLAGE SOHANA FOR WHICH A SUM OF RS. 1,67,17,950/- WERE ADVANCED TO LAND OWNERS. COPY OF THE BALANCE SHEET OF M/S RADIANT EMPIRE PVT.LTD. FILED BY THE ASSESSEE WAS CONSIDERE D AND IT WAS SEEN THAT AS PER BALANCE SHEET, A SUM OF RS. 14 LACS WAS SHOWN UNDER SHARE APPLICATION MONEY IN THE NAME OF SMT. RANJIT KAUR. THE COMPANY HAS TRIED TO 5 MATCH THE NAMES AND AMOUNTS APPEARING IN THE SEIZED DOCUMENT AND BOOKS OF ACCOUNT TO ESTABLISH THAT PAYMENTS CONTAINED IN THE SEIZED MATERIAL WERE DEBI TED THROUGH BOOKS OF M/S RADIANT EMPIRE PVT.LTD. 6. THE ASSESSEE IN THE SUBMISSIONS SUBMITTED THAT INFORMATION WAS SOUGHT UNDER SECTION 133(6) FROM TH E PARTY AND THE PARTY HAS CONFIRMED THE TRANSACTION A ND FURNISHED COPY OF THE ACCOUNTS OF PAYMENT FOR PURCH ASE OF BALALI LAND. COMPANY HAS FURTHER SUBMITTED THAT ENTIRE AMOUNT PAID FOR PURCHASE OF LAND AT BALALI W ERE ROUTED THROUGH THE BOOKS OF ACCOUNT OF M/S PULSAR PROPERTIES PVT. LTD. AND NO PAYMENT HAS BEEN MADE F ROM SHRI GURJIT SINGH AND GAGAN KHEMKA TO THE LAND OWNERS. IT WAS FURTHER SUBMITTED THAT WITH REGARD TO SOHANA LAND, THE INFORMATION UNDER SECTION 133(6) W AS CALLED FOR FROM THE CONCERNED PARTY AND COMPANY HAS ADVANCED FOR PURCHASE OF 22 ACRES OF LAND AT VILLAG E SOHANA FOR WHICH SUM OF RS. 1,67,17,950/- WERE ADVANCED TO THE LAND OWNERS. THE COMPANY, THEREFOR E, TRIED TO MATCH THE DETAILS CONTAINED IN THE SEIZED PAPER. 7. THE LD. CIT(APPEALS) DID NOT ACCEPT THE CONTENTI ON OF THE ASSESSEE. THE LD. CIT(APPEALS) OBSERVED THA T THE EXPLANATION DOES NOT EXPLAIN THE SOURCE OF INVESTME NT AND BURDEN UPON ASSESSEE HAS NOT BEEN DISCHARGED TO EXPLAIN THE ADDITION. FURTHER THE ASSESSING OFFICE R HAS INVOKED PROVISIONS OF SECTION 292C OF THE ACT FOR T HE 6 PURPOSE OF MAKING ADDITION. THEREFORE, THIS GROUND OF APPEAL OF THE ASSESSEE WAS DISMISSED. 8. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE AUTHORITIES BELOW. THE LD. COUNSEL FOR THE ASSESSEE FROM THE SYNOPSIS OF SUBMISSIONS POINTED OUT THAT FIRST TWO ENTRIES IN T HE SEIZED PAPER WERE MARKED AS 35 CHEQUE,79 CHEQUE WHI CH COMES TO RS. 114 X 2 AND TOTAL RS. 228 I.E. THE AMO UNT STATED TO BE PAID AT THE TIME OF AGREEMENT ON 30.04.2005. IN FACT, ACTUAL AMOUNT PAID COMES TO RS.2,16,40,000/-. THE THIRD ENTRY OF RS. 42.50 LAC S WAS STATED TO BE IN CHEQUE AND AFTER CUTTING, CASH IS MENTIONED. THE PROPERTY UNDER CONSIDERATION RELATE S TO M/S PULSAR PROPERTIES PVT. LTD. AND TRANSACTION REL ATED TO ASSESSMENT YEAR 2006-07. IN FACT, NO AMOUNT WAS PAID IN CASH AS THE AMOUNT WAS SUPPOSED TO BE PAID ON CLU OF LAND @ RS. 3 LACS PER ACRE BUT CLU NOT OBTAI NED, AS SUCH NO AMOUNT WAS PAID. THE FACT WAS EXPLAINED BY THE ASSESSEE IN HIS STATEMENT THAT NO SUCH PAYMENT HAS BEEN MADE BY ASSESSEE. SINCE THE TRANSACTION RELATE S TO M/S PULSAR PROPERTIES PVT. LTD. AND PERTAINS TO ASSESSMENT YEAR 2006-07 THEREFORE, NO ADDITION SHOU LD BE MADE IN THE HANDS OF ASSESSEE IN ASSESSMENT YEAR 2008-09. IT WAS FURTHER SUBMITTED THAT LD. CIT(APP EALS) WAS NOT JUSTIFIED IN HOLDING THAT SOURCE OF INVESTM ENT IS NOT EXPLAINED BECAUSE COPY OF THE BALANCE SHEET WAS FURNISHED WHICH CONTAINED DETAILS OF INVESTMENTS AN D 7 SOURCE, THEREFORE, THIS COULD HAVE BEEN VERIFIED FR OM THE DOCUMENT ITSELF. 8(I) THE SECOND BLOCK RELATES TO LAND AT VILLAGE SO HANA 22 ACRES PROPOSED TO BE ACQUIRED BY M/S RADIANT EMPIRE PVT.LTD., MOHALI IN WHICH SMT. RANJIT KAUR, WIFE OF THE ASSESSEE IS DIRECTOR AND PROMOTER OF THE COM PANY AND UNDER THE SECOND BLOCK 24.75 CHEQUE, 11.70 CHEQ UE RS. 22.25 CASH AND 7.80 CASH. THUS, TOTAL PAYMENT PROPOSED TO BE MADE UNDER BLOCK II COMES TO 133 LAC S. AS PER NOTING. HOWEVER, AS PER THE RECORDS OF M/S RADIANT EMPIRE PVT.LTD. TOTAL PAYMENT OF RS. 1,37,87,748/- WAS AGAINST THE SOHANA LAND. THE CONFIRMATION OF M/S RADIANT EMPIRE PVT.LTD. WAS FIL ED IN THIS REGARD. IT WAS FURTHER SUBMITTED THAT IN ASSES SMENT YEAR 2006-07, AN ADDITION OF RS. 1,53,61,019/- HAS ALREADY BEEN MADE IN THE HANDS OF THE ASSESSEE AND HAS ALREADY BEEN DEALT IN ITA 1169/2012. SINCE, TRANSACTION RELATES TO ASSESSMENT YEAR 2006-07 AND TO M/S RADIANT EMPIRE PVT.LTD., THEREFORE, ADDITION AG AINST THE ASSESSEE IN ASSESSMENT YEAR 2008-09 IS WHOLLY UNJUSTIFIED. 8(II) PB-50 IS LEDGER ACCOUNT OF THE ASSESSEE IN TH E BOOKS OF M/S PULSAR PROPERTIES PVT. LTD. CONFIRMING RECEIPT OF RS. 45 LACS FROM THE ASSESSEE. PB-51 IS COPY OF ACCOUNT OF BALALI LAND IN THE BOOKS OF M/S PULSA R PROPERTIES PVT. LTD. TO SHOW TOTAL PAYMENT TO VARIO US PERSONS/LAND OWNERS IN A SUM OF RS. 2,16,40,000/- I N 8 ASSESSMENT YEAR 2006-07. PB-49 IS CONFIRMATION BY M/S PULSAR PROPERTIES PVT. LTD. TO THE ASSESSING OFFICE R UNDER SECTION 133(6) OF THE INCOME TAX ACT EXPLAINI NG THAT INVESTMENT IN BALALI LAND OF 104 ACRES WAS MAD E BY THE COMPANY. PB-52 TO 55 IS THE ACKNOWLEDGEMENT OF RETURN OF INCOME AND BALANCE SHEET ETC. IN THE CASE OF M/S PULSAR PROPERTIES PVT. LTD. SHOWING UNSECURED L OANS FROM ASSESSEE AND GAGAN KHEMKA. PB-40 TO 48 ARE TH E AGREEMENTS DATED 30.04.2005 AND 07.06.2005 BETWEEN M/S PULSAR PROPERTIES PVT. LTD. AND LAND OWNERS FOR PURCHASE OF LAND AT VILLAGE BALALI WHICH WOULD ALSO FALL IN ASSESSMENT YEAR 2006-07. PB-62 IS CONFIRMATION FILED BEFORE ASSESSING OFFICER BY M/S PULSAR PROPER TIES PVT. LTD. FOR PAYING THE ABOVE ADVANCE FOR LAND AT VILLAGE BALALI IN 104 ACRES AND INVESTMENT OF RS. 45 LACS I N THEIR BOOKS OF ACCOUNT BY THE ASSESSEE. PB-64 IS CONFIRMATION BY M/S RADIANT EMPIRE PVT.LTD. CERTIFY ING THAT NOTINGS IN THE SEIZED PAPERS BELONG TO THEM FO R ADVANCE GIVEN BY THEM FOR PURCHASE OF LAND AT VILLA GE SOHANA. PB-65 IS SOHANA LAND ACCOUNT IN THE BOOKS OF M/S RADIANT EMPIRE PVT.LTD. SHOWING TOTAL INVESTMEN T IN A SUM OF RS. 1,67,17,950/-. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT INVESTMENTS HAVE BEEN MADE IN ASSESSMENT YEAR 2006-07. PB-83 IS ORDER OF ITAT CHANDIGARH BENCH IN THE CASE OF THE ASSESSEE FOR ASSESSMENT YEAR 2006-07 AND 2007-08 IN ITA 1167, 9 1170, 1189 & 1190 OF 2012 DATED 15.07.2007 IN WHICH ON IDENTICAL ISSUE, TRIBUNAL RESTORED THE MATTER BA CK TO THE ASSESSING OFFICER FOR RE-EXAMINATION OF THE ISS UE AFTER MAKING ENQUIRIES FROM M/S RADIANT EMPIRE PVT.LTD. AND TO DECIDE THE ISSUE ACCORDINGLY. PB-8 6 IS ASSESSMENT ORDER PASSED BY ASSESSING OFFICER DATED 29.02.2016 FOR ASSESSMENT YEAR 2006-07 UNDER SECTIO N 143(3) READ WITH SECTION 254 OF THE ACT AND THE ASSESSING OFFICER, AFTER MAKING ENQUIRIES AND INFORMATION CALLED UNDER SECTION 133(6) FROM M/S RADIANT EMPIRE PVT.LTD. WAS SATISFIED WITH THE EXPLANATION OF THE ASSESSEE AND NO ADVERSE INFERENC E WAS DRAWN AGAINST THE ASSESSEE AND NO ADDITION OF R S. 1,53,61,019/- WAS MADE. THE LD. COUNSEL FOR THE ASSESSEE, THEREFORE, SUBMITTED THAT THE ENTIRE DETA ILS MENTIONED IN THE SEIZED PAPER PERTAIN TO ASSESSMENT YEAR 2006-07 AND TO M/S RADIANT EMPIRE PVT.LTD., THEREFORE, NO ADDITION AGAINST THE ASSESSEE IS CALL ED FOR IN ASSESSMENT YEAR 2008-09. THE LD. COUNSEL FOR TH E ASSESSEE ALSO SUBMITTED THAT SINCE SEIZED DOCUMENT IS EXPLAINED, THEREFORE, PROVISIONS OF SECTION 292C WO ULD NOT APPLY IN THE CASE OF THE ASSESSEE. ON THE OTHE R HAND, LD. DR RELIED UPON ORDERS OF THE AUTHORITIES BELOW. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND GONE THROUGH THE MATERIAL ON RECORD. THE ASSESSING OFFICER HAS REPRODUCED THE SEIZED PAPER AT PAGE 10 OF THE ASSESSMENT ORDER WHICH CONTAINED THE DETAILS OF THE 10 PROPERTIES I.E. 104 ACRES OF LAND AT VILLAGE BALALI AND 22 ACRES OF LAND AT SOHANA. THE LD. COUNSEL FOR THE ASSESSEE EXPLAINED THE DETAILS MENTIONED IN THE SEI ZED PAPER AS 104 ACRES OF LAND AT VILLAGE BALALI PERTAI NS TO M/S PULSAR PROPERTIES PVT. LTD. AND THAT NO CASH PAYMENT HAVE BEEN MADE. M/S PULSAR PROPERTIES PVT. LTD. IN REPLY TO THE ASSESSING OFFICER UNDER SECTIO N 133(6) CONFIRMED THAT THE ASSESSEE HAS INVESTED RS. 45 LACS WITH THEM AND THAT THE TRANSACTION OF 104 ACRE S OF LAND AT VILLAGE BALALI PERTAINS TO THEM AND THE COM PANY HAS PAID ADVANCE OF RS. 2,16,40,000/-. IT WAS ALSO EXPLAINED THAT ASSESSEE HAS NO CONCERN WITH THIS TRANSACTION. ALL THE PAYMENTS ARE MADE THROUGH BANKING CHANNEL TO THE LAND OWNERS AND PERTAIN TO ASSESSMENT YEAR 2006-07. THE INVESTMENT MADE BY ASSESSEE IN THIS COMPANY AND GAGAN KHEMKA HAVE BEEN SHOWN IN THEIR BOOKS OF ACCOUNT AS UNSECURED CREDIT ORS. THE AGREEMENT TO SELL ARE ALSO FILED ON RECORD TO S HOW THAT M/S PULSAR PROPERTIES PVT. LTD. ENTERED INTO AGREEMENT TO PURCHASE THE LAND FROM THE LAND OWNERS AND THE ENTIRE TRANSACTIONS PERTAIN TO ASSESSMENT Y EAR 2006-07. NO EVIDENCE OF ANY CASH PAYMENT HAS BEEN BROUGHT ON RECORD BY THE ASSESSING OFFICER. SIMILA RLY FOR PROPERTY AT SOHANA, IT WAS EXPLAINED THAT THIS PROPOSED TRANSACTION RELATE TO M/S RADIANT EMPIRE PVT.LTD. AND THEY HAVE SIMILARLY CONFIRMED THE TRANSACTION BELONG TO THEM AND ENTIRE PAYMENTS HAVE BEEN MADE BY THEM OF RS. 1.67 CR APPROXIMATELY. TH IS 11 INVESTMENT WAS MADE BY THIS COMPANY IN ASSESSMENT YEAR 2006-07. THE ASSESSING OFFICER MADE ADDITION OF RS.1.53 CR IN ASSESSMENT YEAR 2006-07 IN THE HANDS OF THE ASSESSEE AND WHEN THE TRIBUNAL RESTORED THE MAT TER BACK TO THE FILE OF ASSESSING OFFICER VIDE ORDER DA TED 15.07.2014 IN RESPECT OF SOHANA LAND, THE ASSESSING OFFICER PASSED THE FRESH ASSESSMENT ORDER DATED 29.02.2016 FOR ASSESSMENT YEAR 2006-07 IN THE CASE OF THE ASSESSEE AND AFTER MAKING VERIFICATION OF THE TRANSACTION OF SOHANA LAND FROM M/S RADIANT EMPIRE PVT.LTD., DID NOT MAKE ANY ADDITION AGAINST THE ASSESSEE. IT, THEREFORE, CLEARLY PROVED ON RECORD THAT THE ENTIRE DETAILS MENTIONED IN THE SEIZED PAPER PE RTAIN TO M/S PULSAR PROPERTIES PVT. LTD. AND M/S RADIANT EMPIRE PVT.LTD. NONE OF THE TRANSACTIONS ARE RELAT ED TO THE ASSESSEE IN ANY MANNER. ALL CHEQUE PAYMENTS HA VE BEEN MADE BY THESE COMPANIES TO THE LAND OWNERS AND NO EVIDENCE OF CASH PAYMENT BY ASSESSEE HAS BEEN BROUGHT ON RECORD. THEREFORE, THE TRANSACTIONS MENTIONED IN THE SEIZED PAPERS HAVE BEEN EXPLAINED THROUGH EVIDENCES AND MATERIAL ON RECORD AND AS SUC H, PROVISIONS OF SECTION 292C WOULD NOT APPLY AGAINST THE ASSESSEE. FURTHER, FOR TRANSACTION BEING PERTAININ G TO ASSESSMENT YEAR 2006-07, THERE IS NO QUESTION OF MAKING ADDITION AGAINST THE ASSESSEE IN ASSESSMENT YEAR 2008-09. 12 10. CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTA NCES AND MATERIAL ON RECORD, WE ARE OF THE VIEW THE ADDI TION OF RS. 1.78 CR IN THE HANDS OF THE ASSESSEE IS WHOL LY UNJUSTIFIED. WE, ACCORDINGLY, SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND DELETE THE ADDITION. GROUND NO. 4 OF APPEAL OF THE ASSESSEE IS ACCORDINGLY, ALLOWED. 11. ON GROUND NO. 5, ASSESSEE CHALLENGED THE ADDITI ON OF RS. 60 LACS AS UNEXPLAINED INVESTMENTS UNDER SEC TION 69 OF THE ACT BEING PAYMENT BY SHRI SHIV DEV SINGH. THE ASSESSING OFFICER MADE ADDITION OF RS. 60 LACS AS UNEXPLAINED INVESTMENT UNDER SECTION 69 OF THE ACT BEING PAYMENT MADE BY SHRI SHIV DEV SINGH CONSIDERE D AS PAID BY THE ASSESSEE AGAINST THE AGREEMENT TO SE LL ENTERED BETWEEN SHRI SHIV DEV SINGH AND M/S RADIANT EMPIRE PVT.LTD. PARA 12 OF THE ASSESSMENT ORDER DE ALS WITH AGREEMENT TO SELL SEIZED FROM THE RESIDENCE OF THE ASSESSEE BETWEEN M/S RADIANT EMPIRE PVT.LTD. THROUG H ITS DIRECTOR SHRI GIAN CHAND AND ONE SHRI SHIV DEV SINGH, TOTAL SALE PRICE FOR THE 8 ACRES OF LAND AT VILLAGE SOHANA WAS RS. 6 CR FOR WHICH RS. 60 LACS HAVE BEEN PAID IN CASH ON 17.10.2007 AND BALANCE BY 31.03.200 8. IT IS ALSO MENTIONED THEREIN SHRI SHIV DEV SINGH BE SIDES THE STATEMENT RECORDED UNDER SECTION 131, HAD ALSO FILED AFFIDAVIT DENYING HIS INVOLVEMENT IN THE TRANSACTIO N. THOUGH THE ASSESSEE CONTENDS THAT THE MATTER WAS NE VER CONFRONTED BUT ASSESSEE HAS NOT GIVEN ANY CLARIFICA TION AS TO HOW THE ORIGINAL DOCUMENT WAS FOUND FROM HIS 13 POSSESSION. THE ASSESSEE CONTENDED THAT AGREEMENT T O SELL DATED 17.10.2007 WAS SEIZED FROM THE ASSESSEE WHICH WAS ENTERED INTO BETWEEN M/S RADIANT EMPIRE PVT.LTD. AND SHRI SHIV DEV SINGH AND IT WAS STATED THAT SHRI SHIV DEV SINGH HAS PAID RS. 60 LACS TO THE COM PANY FOR SALE OF 8 ACRES OF LAND AT VILLAGE SOHANA. THE ASSESSEE FURTHER CONTENDED THAT CREDIT OF RS. 60 LA CS STATED TO BE RECEIVED BY M/S RADIANT EMPIRE PVT.LTD . WAS NOT CREDITED IN THE BOOKS OF ACCOUNT OF THE ASS ESSEE OR ANY OF HIS BUSINESS CONCERN. THE STATEMENT OF S HRI SHIV DEV SINGH WAS RECORDED WHEREIN HE HAS STATED T HAT HE HAS SIMPLY SIGNED THE AGREEMENT TO SELL ON THE REQUEST OF ASSESSEE AND NO MONEY WAS PAID. THE ASSESSEE FURTHER CONTENDED THAT STATEMENT SHRI SHIV DEV SINGH WAS NEVER CONFRONTED TO HIM. M/S RADIANT EMPIRE PVT.LTD. WHO WAS ACTING AS SELLER IN THE AGREEMENT TO SELL, HAVE CONFIRMED THAT THEY HAVE NO T RECEIVED ANY CASH AGAINST THIS AGREEMENT TO SELL. AS SUCH, THE AMOUNT WAS NEITHER ADVANCED BY ASSESSEE S HRI SHIV DEV SINGH NOR RECEIVED BY M/S RADIANT EMPIRE PVT.LTD., NO ADDITION SHOULD BE MADE AGAINST THE ASSESSEE. THE ASSESSEE SUBMITTED CONFIRMATION FROM M/S RADIANT EMPIRE PVT.LTD. THAT AMOUNT OF RS. 60 L ACS WAS NEVER RECEIVED BY THEM. THE CONFIRMATION OF TH E COMPANY WAS NOT RELIED UPON BECAUSE THE AGREEMENT T O SELL WAS SEIZED FROM THE RESIDENCE OF ASSESSEE AND FURTHER SHRI SHIV DEV SINGH IN HIS STATEMENT DENIED ENTERING INTO ANY TRANSACTION. THE ASSESSING OFFIC ER, 14 THEREFORE, OBSERVED THAT PRESUMPTION UNDER SECTION 292C ARISES AGAINST THE ASSESSEE AND ADDITION OF TH E ABOVE AMOUNT WAS MADE. THE ASSESSEE RELIED UPON DECISION OF DELHI HIGH COURT IN THE CASE OF CIT VS VED PARKASH CHAUDHRY 304 ITR 245. THE LD. CIT(APPEALS) DID NOT BELIEVE THE CONFIRMATION FILED BY M/S RADIA NT EMPIRE PVT.LTD. AND CONFIRMED THE ADDITION. 12. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PARTIES. THE LD. COUNSEL FOR THE ASSESSEE REITERAT ED THE SUBMISSIONS MADE BEFORE AUTHORITIES BELOW AND REFER RED TO PB-92 WHICH IS AGREEMENT TO SELL DATED 17.10.20 07 BETWEEN M/S RADIANT EMPIRE PVT.LTD. AND SHRI SHIV D EV SINGH FOR PURCHASE OF PROPERTY AND GIVING OF ADVANC E OF RS. 60 LACS BY SHRI SHIV DEV SINGH TO THIS COMPANY. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ASSESSE E IS NOT PARTY TO THIS AGREEMENT AND HAS MERELY SIGNED A S WITNESSES. THE PRESUMPTION UNDER SECTION 292C OF T HE ACT WOULD NOT APPLY AGAINST THE ASSESSEE. PB-96 IS CONFIRMATION OF M/S RADIANT EMPIRE PVT.LTD. CONFIRM ING THAT THEY HAVE NOT RECEIVED ANY PAYMENT FROM SHRI S HIV DEV SINGH AGAINST AGREEMENT TO SELL DATED 17.10.200 7. ON THE OTHER HAND, LD. DR RELIED UPON ORDERS OF THE AUTHORITIES BELOW. IT IS NOT IN DISPUTE THAT THE AGREEMENT TO SELL IN QUESTION HAS BEEN EXECUTED BET WEEN M/S RADIANT EMPIRE PVT.LTD. AND SHRI SHIV DEV SINGH . THE ASSESSEE IS NOT A PARTY TO THIS AGREEMENT AND H AS MERELY SIGNED AS WITNESS. THE ASSESSING OFFICER 15 RECORDED STATEMENT OF SHRI SHIV DEV SINGH IN WHICH HE HAS DENIED TO HAVE EXECUTED ANY SUCH AGREEMENT TO S ELL. HE HAS MERELY SIGNED THE AGREEMENT AT THE INSTANCE OF THE ASSESSEE. HE HAS ALSO DENIED GIVING OF ADVANCE OF RS. 60 LACS TO THIS COMPANY. M/S RADIANT EMPIRE PVT.LTD. ALSO IN THEIR CONFIRMATION DENIED RECEIPT OF ANY ADVANCE FROM SHRI SHIV DEV SINGH AGAINST THE AGREEM ENT TO SELL IN QUESTION. IT IS ALSO EXPLAINED IN THE CONFIRMATION THAT THE TRANSACTION WAS ONLY PROPOSED SALE OF 8 ACRES OF LAND AT VILLAGE SOHANA WHICH WAS NEVER ACTED UPON BY THE PARTIES. THUS, THE PROPOSE D SELLER AND PROPOSED BUYER HAVE DENIED GIVING OR REC EIPT OF ANY ADVANCE OF RS. 60 LACS ON THE MATTER IN ISSU E. THERE IS NO EVIDENCE ON RECORD TO PROVE THAT ASSESS EE HAD GIVEN ANY AMOUNT IN QUESTION OF RS. 60 LACS. HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS KULW ANT RAI 291 ITR 36 (DELHI) HELD AS UNDER : HELD, DISMISSING THE APPEAL, (I) THAT, ADMITTEDLY, THE ASSESSEE HAD NOT SIGNED THE AGREEMENT IN QUESTION A ND SINCE HE HAD NOT SIGNED THE AGREEMENT NO LIABILITY COULD BE ATTRIBUTED QUA THAT AGREEMENT TOWARDS HIM SINCE HE WAS NOT A PARTY TO THE AGREEMENT TILL HE HAD SIGNED THE AGREE MENT. THE MERE FACT THAT THIS AGREEMENT WAS FOUND IN THE POSS ESSION OF THE ASSESSEE DID NOT LEAD ANYWHERE. THUS, THE ADDIT ION OF RS. 17,00,892 MADE BY THE ASSESSING OFFICER BY WAY OF H ALF SHARE OF THE ASSESSEE IN THE EARNEST MONEY WAS BASED ON S URMISES AND GUESS WORK ONLY AND WAS LIABLE TO BE DELETED. 16 12(I) HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CA SE OF PARAMJIT SINGH VS ITO 323 ITR 588 HELD AS UNDER : IT IS A WELL KNOWN PRINCIPLE THAT NO ORAL EVIDENCE IS ADMISSIBLE ONCE THE DOCUMENTS CONTAIN ALL THE TERMS AND CONDITIONS. SECTIONS 91 AND 92 OF THE INDIAN EVIDE NCE ACT, 1872 INCORPORATE THE PRINCIPLE. THE TRIBUNAL HELD THAT THE OSTENSIBLE SALE CONSIDER ATION OF THE LAND DISCLOSED IN THE REGISTERED SALE DEED DATED SE PTEMBER 24, 2002 DESERVED TO BE ADDED TO THE INCOME OF THE ASSE SSEE. THE TRIBUNAL DISREGARDED THE STATEMENT MADE ON AFFIDAVI T BY THE VENDORS WHO WERE THE UNCLES OF THE ASSESSEE. THEY HAD STATED THAT NO SALE CONSIDERATION HAD PASSED HANDS AND THE Y HAD RELINQUISHED THEIR SHARE IN THE LANDED PROPERTY. TH E OBJECT OF EXECUTING THE SALE DEED WAS ONLY TO HAND OVER LANDE D PROPERTY TO THE ASSESSEE. ON APPEAL TO THE HIGH COURT : HELD, DISMISSING THE APPEAL, THAT THE OSTENSIBLE SALE CONSIDERATION DISCLOSED IN THE SALE DEED DATED SEPT EMBER 24, 2002, HAD TO BE ACCEPTED AND IT COULD NOT BE CONTRADICTED BY ADDUCING ANY ORAL EVIDENCE. THEREFORE, THE ORDER OF THE TRIBUNAL DID NOT SUFFER FROM ANY LEGAL INFIRMITY. T HE AMOUNT SHOWN IN THE REGISTERED SALE DEED WAS RECEIVED BY T HE VENDORS AND DESERVED TO BE ADDED TO THE GROSS INCOME OF THE ASSESSEE. 13. THE ASSESSING OFFICER TRIED TO FIX THE LIABILIT Y OF THE ASSESSEE ON THE BASIS OF AGREEMENT TO SELL BUT FAILED TO NOTE THAT THERE IS NO EVIDENCE ON RECORD TO PROV E THAT ASSESSEE ENTERED INTO AN AGREEMENT TO SELL IN QUEST ION. THE ASSESSING OFFICER ALSO TRIED TO CONTRADICT THE TERMS AND CONDITIONS OF THE AGREEMENT TO SELL EITHER THRO UGH ORAL EVIDENCE OR NO EVIDENCE ON RECORD WHICH IS NOT PERMISSIBLE UNDER THE LAW. THE LD. COUNSEL FOR THE ASSESSEE ALSO CONTENDED THAT THE ASSESSEE HAS NOT B EEN 17 GIVEN RIGHT TO CROSS EXAMINE THE STATEMENT OF SHRI SHIV DEV SINGH. HOWEVER, CONSIDERING THE FACTS AND CIRCUMSTANCES ABOVE AND THE FACT THAT ASSESSEE IS N OT PARTY TO THE AGREEMENT, THEREFORE, MERE RECOVERY OF THE AGREEMENT TO SELL FROM HIS POSSESSION WOULD NOT PRO VE THE CASE OF THE REVENUE. THE REVENUE HAS FAILED TO CONNECT THE ASSESSEE WITH THE CONSIDERATION OF RS. 60 LACS. THEREFORE, NO PRESUMPTION UNDER SECTION 292C WOULD ARISE AGAINST THE ASSESSEE. WE, THEREFORE, D O NOT FIND ANY JUSTIFICATION TO SUSTAIN THE ADDITION OF R S. 60 LCS. WE, ACCORDINGLY, SET ASIDE THE ORDERS OF AUTH ORITIES BELOW AND DELETE THE ADDITION OF RS. 60 LACS. GROU ND NO. 5 OF THE APPEAL OF THE ASSESSEE IS ALLOWED. 14. ON GROUND NO. 6, ASSESSEE CHALLENGED THE ADDITI ON OF RS. 5 LACS UNDER SECTION 68 OF THE ACT ON ACCOUN T OF UNEXPLAINED CASH CREDIT FROM MOHINDER PAL SINGH. T HE ASSESSING OFFICER MADE ADDITION OF RS. 5 LACS AGAIN ST THE ASSESSEE ON ACCOUNT OF UNEXPLAINED CREDIT. THE ASSE SSEE HAS CONTENDED THAT A SUM OF RS. 5 LACS COMPRISING O F DD NO. 257943 DRAWN ON PUNJAB NATIONAL BANK ON 04.10.2007 AMOUNTING TO RS. 2,50,000/- AND DD NO. 257951 DRAWN ON PUNJAB NATIONAL BANK ON 05.10.2007 AMOUNTING TO RS. 2,50,000/- WERE RECEIVED FROM SHRI MOHINDER PAL. INFORMATION UNDER SECTION 133(6) WAS CALLED FOR FROM SHRI MOHINDER PAL IN WHICH HE HAS CONFIRMED THE TRANSACTION. THE ASSESSING OFFICER, HOWEVER, DID NOT ACCEPT THE EXPLANATION OF THE ASSE SSEE 18 AND MADE ADDITION. THE LD. CIT(APPEALS) ALSO CONFI RMED THE ADDITION. 15. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE AUTHORITIES BELOW AND SUBMITTED THAT THE AMOUNT IN QUESTION WAS RECEIVED THROUGH BANKING CHANNEL AND SHRI MOHINDER PAL SINGH DIRECTLY CONFIRMED THIS FACT TO THE ASSESSING OFFIC ER IN RESPONSE TO INFORMATION CALLED FOR UNDER SECTION 13 3(6) OF THE ACT, COPY OF WHICH IS FILED AT PAGES 97-98 O F THE PAPER BOOK IN WHICH HE HAS CONFIRMED GIVING ADVANCE OF RS. 5 LACS TO THE ASSESSEE AND HE IS ASSESSED TO TA X ALSO. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED T HAT SIMILAR ISSUE WAS CONSIDERED BY ITAT CHANDIGARH IN THE CASE OF SAME ASSESSEE FOR ASSESSMENT YEAR 2006-07 I N ITA 1169/2012 AND VIDE ORDER DATED 15.07.2014, SIMI LAR ADDITION HAS BEEN DELETED. HE HAS, THEREFORE, STAT ED THAT ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE. T HE FINDINGS OF THE TRIBUNAL IN PARA 31 OF THE ORDER AR E REPRODUCED AS UNDER : 31 AFTER CONSIDERING THE RIVAL SUBMISSIONS WE FIND THAT AS FAR AS ADDITION OF RS. 8 LAKHS ON ACCOUNT O F SHRI K.D. SHARMA IS CONCERNED, THE SAME PRINCIPLE I S APPLICABLE WHICH WE HAVE ADJUDICATED IN RESPECT OF GROUND NO. 5 BECAUSE K.D. SHARMA HAS FILED FIR AGAINST THE ASSESSEE CLAIMING THAT A SUM OF RS. 13. 85 CRORES WAS ADVANCED TO THE ASSESSEE AND HIS FAMILY AND HAS ALSO SURRENDERED A SUM OF RS. 12 CRORES BEFORE THE SETTLEMENT COMMISSION AND THEREFORE THIS ADDITION IS BEING DELETED ON THE SAME PRINCIPLE AS 19 DECIDED BY US WHILE DECIDING GROUND NO. 5. AS FAR AS ADDITION OF RS. 12621/- IS CONCERNED, FROM THE DOCUMENTS FILED IN PAPER BOOK IT BECOMES CLEAR THAT THE ASSESSING OFFICER HAS MADE ENQUIRIES U/S 133(6) FROM THIS PERSON AND IN RESPONSE HE HAS FILED CONFIRMATION AS WELL AS COPY OF ACCOUNT AND AGREEMENT SHOWING THAT HE HAS PURCHASED CERTAIN PROPERTIES JOINTLY. MOHINDERPAL SINGH HAS GIVEN HIS PAN ALSO THEREFORE FULL EXPLANATION WAS AVAILABLE WITH THE ASSESSING OFFICER AND IN CASE HE WAS NOT SATISFIED THEN THE ASSESSING OFFICER SHOULD HAVE MA DE FURTHER ENQUIRIES AND ADDITION COULD NOT BE MADE BY BRUSHING ASIDE THE EVIDENCE FILED BEFORE HIM WITHOU T CONDUCTING FURTHER ENQUIRIES FOR ADDITION OF RS. 812621/- IN GROUND NO. 8 IS DELETED. 15(I) ON THE OTHER HAND, LD. DR RELIED UPON ORDERS OF THE AUTHORITIES BELOW. 16. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE A RE OF THE VIEW THE ISSUE IS COVERED IN FAVOUR OF THE A SSESSEE BY ORDER OF THE TRIBUNAL IN THE CASE OF SAME ASSESS EE FOR ASSESSMENT YEAR 2006-07 VIDE ORDER DATED 15.07.2014 . ON IDENTICAL FACTS THE TRIBUNAL HAS DELETED THE ADD ITION. IN THIS YEAR ALSO, ASSESSING OFFICER CALLED FOR INFORMATION UNDER SECTION 133(6) FROM SHRI MOHINDER PAL SINGH AND HE HAS CONFIRMED TRANSACTION UNDER SECTIO N 133(6) OF THE ACT. THEREFORE, FOLLOWING THE ORDER O F THE TRIBUNAL DATED 15.07.2014, WE SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND DELETE THE ADDITION. GROUND NO. 6 OF THE APPEAL OF THE ASSESSEE IS ALLOWED. 20 17. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ITA 1191/2012 (A.Y. 2008-09) DEPARTMENTAL APPEAL 18. ON GROUND NOS. 1, 2 AND 3, REVENUE CHALLENGED T HE DELETION OF ADDITION OF RS. 1,83,20,000/- ON ACCOUN T OF GIFT RECEIVED FROM SHRI S.P.SINGH. BRIEFLY THE FAC TS OF THE CASE ARE THAT LD. CIT(APPEALS) NOTED IN THE IMP UGNED ORDER THAT PERUSAL OF THE BANK ACCOUNTS SHOWS CERTA IN AMOUNTS WERE RECEIVED BY ASSESSEE FROM SHRI S.P.SIN GH OBEROI, BROTHER OF THE ASSESSEE. THESE WERE ALSO F OUND REFLECTED IN THE TRIAL BALANCE AND BALANCE SHEET OF THE ASSESSEE. THE ASSESSEE FILED CONFIRMATION OF THE G IFT RECEIVED FROM SHRI S.P.SINGH, AN NRI BASED IN DUBAI . THE ASSESSEE CONTENDED THAT THE AMOUNTS HAVE BEEN RECEIVED FROM SHRI S.P.SINGH, BROTHER OF THE ASSESS EE AND HE IS ASSESSED TO DCIT (INTERNATIONAL TAXATION) CHANDIGARH AND SHRI S.P.SINGH HAS CONFIRMED GIVING OF THE AMOUNT TO THE ASSESSEE. IT WAS SUBMITTED THAT SAME IS ALSO VERIFIABLE FROM THE BANK. THE ASSESSEE ALS O CONTENDED THAT POLICY OF FOREIGN INWARD REMITTANCE CERTIFICATE (FIRC) IS DETAILED BY RBI UNDER FOREIGN EXCHANGE POLICY WITH PUBLIC AND UNDER THE INCOME TA X ACT AND RULES WHICH WERE APPLICABLE AND FILED ON RE CORD. THE ASSESSEE ALSO CONTENDED THAT IN THE SIMILAR CIRCUMSTANCES FOR ASSESSMENT YEAR 2009-10, DCIT, INTERNATIONAL TAXATION, CHANDIGARH IN THE CASE OF S HRI S.P.SINGH WHILE COMPLETING THE ASSESSMENT UNDER 21 SECTION 143(3) FOR ASSESSMENT YEAR 2009-10 VIDE ORD ER DATED 30.12.2011 HAS ADOPTED THE COURSE OF GIFTS MA DE AMOUNTING TO RS. 58,96,600/- TO SHRI PRITAM SINGH A ND RS. 30 LACS TO SHRI GURJIT SINGH, ASSESSEE. THE AS SESSEE FILED ALL THESE EVIDENCES BEFORE THE AUTHORITIES BE LOW. IT WAS, THEREFORE, SUBMITTED THAT ASSESSEE HAS PROVED GENUINENESS OF THE GIFT IN THE MATTER, CREDIT WORTH INESS OF THE DONOR ALSO. 18(I) THE LD. CIT(APPEALS) ACCEPTED THE EXPLANATION OF THE ASSESSEE BECAUSE SHRI S.P.SINGH IS BROTHER OF T HE ASSESSEE AND NRI BASED IN DUBAI AND AMOUNTS WERE RECEIVED THROUGH BANKING CHANNEL. THE CREDIT WORTHI NESS OF SHRI S.P.SINGH HAVE BEEN PROVED AND DCIT (INTERNATIONAL TAXATION) IN HIS CASE FOR ASSESSMENT YEAR 2009-10 ACCEPTED THE GIFT AS GENUINE. THE LD. CIT(APPEALS), ON THE BASIS OF THE EVIDENCES ON RECO RD ACCEPTED THE GENUINENESS OF THE GIFT IN THE MATTER AND DELETED THE ADDITION. 18(II) THE LD. DR RELIED UPON ORDERS OF THE ASSESS ING OFFICER. THE LD. COUNSEL FOR THE ASSESSEE, HOWEVER , SUBMITTED THAT THE ISSUE IS IDENTICAL AS HAVE BEEN CONSIDERED BY ITAT CHANDIGARH BENCH IN ITA 1193 OF 2012 IN THE CASE OF SHRI PRITAM SINGH AND THE TRIBU NAL VIDE ORDER DATED 06.06.2014 CONFIRMED THE DELETION OF ADDITION AND DISMISSED THE DEPARTMENTAL APPEAL. THE FINDINGS OF THE TRIBUNAL IN PARA 10 3 TO 111 22 OF THIS ORDER ARE REPRODUCED AS UNDER : 103 ITA NO. 1193/CHD/2012 A.Y 2004-05 REVENUE APPEAL 104 IN THIS APPEAL THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: (I) WHETHER THE LD. CIT(A) IS JUSTIFIED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS. 9,55,223/- ON ACCOUNT OF GIFT RECEIVED FROM SH. S.P. SINGH WHEN ASSESSEE FAILED TO PROVE THE GENUINENESS OF THE GIFT ? (II) WHETHER ON FACTS AND CIRCUMSTANCES OF THE CASE CIT(A) WAS JUSTIFIED IN ACCEPTING THE GENUINENESS OF A GIFT FROM NON RESIDE NT INDIAN (NRI) BROTHER OF THE ASSESSEE, IN TOTAL DISREGARD TO THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. P R GANAPATHY (2012 TIOL 76 S C IT) THAT THE ASSESSEE HAS TO SHOWN ADEQUACY OF FUNDS IN THE HANDS OF FOREIGN DONOR FOR AFORESAID GIFT DONATION? (III) WHETHER ON FACTS OF THE CASE ADVERSE AND REBU TTABLE PRESUMPTION SHOULD HAVE BEEN DRAWN ABOUT GENUINENESS OF THE GIFT WHEN THE ASSESSEE OVER A PERIOD OF SEVEN ASSESSMENT YEARS HAS RECEIVED A TOTAL SUM OF RS. 6,67,05,848/- CRORES AS GIFT ? 105 AFTER HEARING BOTH THE PARTIES WE FIND THAT DUR ING ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER OBSERV ED THAT SPECIAL AUDITOR HAS NOTICED VARIOUS CREDITS IN THE NAME OF SURINDERPAL SINGH OBEROI WHO IS THE SON OF THE ASSESSEE. CONFIRMATION FROM SURINDERPAL SINGH WAS SUBMITTED BEFORE THE SPECIAL AUDITOR BUT SPECIAL AU DITOR OBSERVED THAT SOURCE IN THE HANDS OF SURINDERPAL SI NGH WERE NOT EXPLAINED. CERTAIN DOCUMENTS WERE FILED BEFORE THE ASSESSING OFFICER INCLUDING A LETTER FRO M SURINDERPAL SINGH IN WHICH IT WAS CONFIRMED THAT HE HAS GIVEN A SUM OF RS. 54974186/- BETWEEN THE PERIOD 7.10.2002 TO 1.1.2009. IT WAS ALSO CERTIFIED THAT SURINDERPAL SINGH HAD MADE CERTAIN GIFTS TO THE ASSESSEE. COMPUTATION SHEETS OF INCOME IN RESPECT OF SURIDNERPAL SINGH SHOWING INCOME OF RS. 23376309/- FOR ASSESSMENT YEAR 2010-11 WAS ALSO FILED. BANK STATEMENT OF RAK BANK WERE ALSO FILED. IT WAS OBSE RVED 23 THAT SOURCE OF INCOME FOR ASSESSMENT YEAR 2010-11 W AS BEYOND THE PERIOD UNDER CONSIDERATION. FURTHER THE ASSESSEE HAD NOT FILED FOREIGN INWARD REMITTANCES CERTIFICATE. IT WAS ALSO OBSERVED THAT NORMALLY WHE N THE AMOUNT IS RECEIVED FROM OUTSIDE INDIA THE SAME SHOU LD BE CREDITED THROUGH AUTHORIZED DEALER ONLY AND IF T HE ASSESSEE HAS FILED THE BANK ACCOUNT FROM A BANK WHI CH IS NOT AUTHORIZED DEALER THEN THE AMOUNT COULD NOT BE GIVEN EXCEPT THROUGH AUTHORIZED DEALER. IN THIS BACKGROUND AND FURTHER DISCUSSION THE AMOUNT RECEIV ED DURING THE YEAR WAS NOT ACCEPTED AND ADDITION OF RS . 1405223/- WAS MADE IN THE HANDS OF THE ASSESSEE. 106 BEFORE THE LD. CIT(A) CERTAIN DOCUMENTS WERE FI LED WHICH WERE SENT FOR VERIFICATION DURING REMAND PROCEEDINGS. IN THE REMAND REPORT ASSESSING OFFICE R AGAIN REITERATED THAT IN THE ABSENCE OF FIRS THESE CREDITS HAVE NOT BEEN ESTABLISHED BY THE ASSESSEE. THE ASSESSEE ALSO GAVE CERTAIN COMMENTS. THE LD. CIT(A) AFTER EXAMINING THIS ISSUE DECIDED THE SAME IN FAVOUR OF THE ASSESSEE. 107 BEFORE US, THE LD. D.R. FOR THE REVENUE STRONGL Y SUPPORTED THE ORDER OF ASSESSING OFFICER. 108 ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT SHRI SURINDERPAL SINGH SON OF THE ASSESSEE WAS LIVING IN DUBAI AND IS AN NRI. PURSUANT TO A SEARCH ON THE ASSESSEE, EVEN THE CASE S OF SURINDERPAL SINGH WERE REOPENED SPECIFICALLY TO VERIFY THE GIFTS MADE BY SURINDERPAL SINGH. IN THIS REGARD HE REFERRED TO AN APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE FILED IN ASSESSMENT YEAR 2005- 06 IN ITA NO. 1174/CHD/2012 WHEREIN COPY OF REASONS RECORDED FOR REOPENING AS WELL AS ASSESSMENT ORDER OF SURINDERPAL SINGH BY DY DIRECTOR (INTERNATIONAL TAXATION) HAS BEEN SUBMITTED. HE POINTED OUT THAT ASSESSMENT FOR ASSESSMENT YEAR 2005-06 WAS 24 REOPENED PARTICULARLY TO VERIFY THE GIFTS MADE BY SURINDERPAL SINGH TO THE ASSESSEE. ASSESSMENT FOR ASSESSMENT YEAR 2006-07 AND 2007-08 WERE NOT REOPENED AND ASSESSMENT FOR ASSESSMENT YEAR 2009- 10 HAS ALSO BEEN COMPLETED AND COPY OF THE ASSESSMENT ORDER IS FILED AT PAGE 36 TO 39 OF THE P APER BOOK. EVEN ASSESSMENT ORDER FOR ASSESSMENT YEAR 2010-11 WAS COMPLETED LATER ON AND HE FIELD A COPY OF THE SAME. SINCE THE REVENUE HAS ALREADY VERIFIED T HE FACT OF GIFTS GIVEN BY SURINDERPAL SINGH IN THESE ASSESSMENT YEARS AND THEREFORE ADDITION HAS BEEN CORRECTLY DELETED BY THE LD. CIT(A). WHILE CONCLUDI NG HE STRONGLY SUPPORTED THE ORDER OF THE LD. CIT(A). 109 WE HAVE GONE THROUGH THE RIVAL SUBMISSIONS CAREFULLY AND FIND THAT THE LD. CIT(A) HAS DECIDED THIS ISSUE VIDE PARA 8.1 WHICH IS AS UNDER: I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE ASSESSEE, THE REMAND REPORT AND THE IMPUGNED ASSESSMENT ORDER. CERTAIN FACTS ARE FO UND UNDISPUTED VIZ. THAT SHRI SP SINGH IS THE SON OF THE ASSESSEE AND IS AN NRI, BAS ED IN DUBAI; THAT THE AMOUNTS WERE RECEIVED FROM SP SINGH AS REVEALED FROM THE BA NK ACCOUNTS AND ARE REFLECTED IN THE TRIAL BALANCE AND BALANCE SHEET OF THE ASSESSEE . IMPORTANTLY, THE CREDITWORTHINESS AS WELL AS THE IDENTITY OF THE PER SON HAS NOT BEEN DISPUTED EITHER. THE ONLY APPARENT DOUBT IN THE MIND OF THE LD. AO I S THE GENUINENESS OF THE TRANSACTIONS CLAIMED BY THE ASSESSEE AND HIS SON AS GIFTS, BESIDES THE NON-FILING OF FIRCS. IN CONNECTION WITH THE NATURE OF THE RECEIPT , THE ASSESSEE HAS IN HIS SUBMISSIONS STATED THAT IN THE ASSESSMENT PROCEEDIN GS FOR AY 2009-10, THE DCIT, INTERNATIONAL TAXATION, CHANDIGARH HAS ACCEPTED THE GIFT AS GENUINE. THE LD AO IS SILENT ON THIS MATTER EXCEPT STATING THAT THE CERTI FICATE OBTAINED FROM DUBAI AS WELL AS AVAILABILITY OF SUFFICIENT FUNDS WITH SURINDER PAL SINGH DOES NOT PROVE THE PURPOSE OF REMITTANCE. BE THAT AS IT MAY, AS REGARDS THE NATUR E OF THE REMITTANCE, IT IS CLEAR THAT THE INCOME-TAX AUTHORITIES CANNOT TAKE TWO STANDS F OR THE SAME TRANSACTION. ONCE THE GIFT HAS BEEN HELD TO BE GENUINE, THERE CAN BE NO D ISPUTE THAT THE SAME WILL HAVE TO BE ACCEPTED AS GENUINE IN THE HAND OF THE ASSESSEE. THE ASSESSEE FURTHER HAS DISCHARGED HIS ONUS CAST UPON HIM BY PRODUCING THE ORDER OF ASSESSMENT OF SHRI. S.P. SINGH DATED 30.12.2011 FOR AY 2009-10 PASSED BY THE DDIT, INTERNATIONAL TAXATION, CHANDIGARH. THUS, I ACCEPT THE CONTENTION OF THE AS SESSEE AND THE GROUND OF APPEAL IS ALLOWED. THUS FROM ABOVE IT BECOMES CLEAR THAT THE REVENUE H AS ALREADY ACCEPTED THE FACT OF GIVING GIFTS BY SHRI 25 SURINDERPAL SINGH. WE HAVE ALREADY ADMITTED THE APPLICATION FOR ADDITIONAL EVIDENCE IN ITA NO. 1174/CHD/2012 IN CASE OF ASSESSEE. RELEVANT PORTION OF REASONS RECORDED FOR REOPENING OF THE ASSESSMENT READS AS UNDER: THE ASSESSEE S.P. SINGH HAS GIVEN GIFTS OF RS. 421 6458/- TO HIS FATHER SHRI PRITAM SINGH AND RS. 1490000/- TO H IS BROTHER, GURJIT SINGH DURING THE YEAR. THE ASSESSEE HAS NOT FIELD INCOME TAX RETURN FOR ASSESSMENT YEAR 2005-06. ENTIRE AM OUNT HAS BEEN REMITTED BY HIM FROM UAE. THUS THE SOURCE OF GIFT OF RS. 5706458/- (RS. 4216458 + RS. 1490000) MADE BY THE A SSESSEE NEEDS TO BE VERIFIED WITH RESPECT TO THE CAPACITY T O MAKE SUCH HUGE GIFTS AND THIS EXPENDITURE REMAINS UNEXPLAINED . AS A RESULT I HAVE REASON TO THAT THIS INCOME OF RS. 570 6458/- HAS ESCAPED TAXATION AND THE CASE NEEDS TO BE OPENED U/ S 147. 110 AFTER ISSUING NOTICE U/S 148 ON THE BASIS OF AB OVE NOTED REASONS THE ASSESSMENT WAS ULTIMATELY COMPLET ED U/S 143(3) R.W.S. 148 IN CASE OF SHRI SURINDERPAL S INGH VIDE ORDER DATED 28.2.2013 FOR ASSESSMENT YEAR 200 5- 06 IN WHICH IT IS CLEARLY MENTIONED THAT THE GIFTS GIVEN BY SURINDERPAL SINGH TO PRITAM SINGH AND GURJIT SIN GH WERE VERIFIED. IT IS ALSO ACCEPTED IN THE ASSESSME NT ORDER THAT SURINDERPAL SINGH IS AN NRI AND RUNNING MANY BUSINESS ORGANIZATIONS AND ASSESSABLE INCOME I N INDIA WAS NIL. THEREFORE IT BECOMES CLEAR THAT SOU RCE OF GIFTS STAND EXPLAINED. THEREFORE REASONING GIVEN B Y THE LD. CIT(A) FOR DELETING THIS ADDITION, IS TOTALLY C ORRECT AND ACCORDINGLY WE CONFIRM THE ORDER OF THE LD. CIT (A). 111 IN THE RESULT, APPEAL OF THE REVENUE IN ITA NO. 1193/CHD/2012 IS DISMISSED . 19. THE LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMIT TED THAT IN THE SAME YEAR, DEPARTMENTAL APPEAL IN THE C ASE OF THE ASSESSEE ON IDENTICAL ISSUE HAS ALSO BEEN DE CIDED IN ITA 1187/2012 FOR ASSESSMENT YEAR 2004-05 IN 26 WHICH ON IDENTICAL FACTS, DEPARTMENTAL APPEAL HAVE BEEN DISMISSED. HE HAS, THEREFORE, SUBMITTED THAT ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE. 19(I) ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE ARE OF THE VIEW THE ISSUE IS IDENTICAL AS HAVE BEEN DEC IDED BY THE TRIBUNAL IN THE CASE OF SHRI PRITAM SINGH & GURJIT SINGH, FOR EARLIER YEARS VIDE ORDER DATED 06.06.2014 IN WHICH ON IDENTICAL FACTS, DEPARTMENTA L APPEALS HAVE BEEN DISMISSED. FOLLOWING THE SAME OR DER DATED 06.06.2014, WE DISMISS THE DEPARTMENTAL APPEA L. GROUND NOS. 1 TO 3 OF THE APPEAL OF THE REVENUE ARE ACCORDINGLY, DISMISSED. 20. ON GROUND NO. 4, REVENUE CHALLENGED DELETION OF DISALLOWANCE OF RS.3,71,470/- ON ACCOUNT OF EXPENSE S ON INTEREST PAID ON LOAN AGAINST FDR CLAIMED AGAINST I NTEREST INCOME. THE LD. CIT(APPEALS) DISCUSSED THIS ISSUE I N PARA 13 OF THE IMPUGNED ORDER. THE LD. CIT(APPEALS) NOT ED THAT IT IS THE CASE OF THE ASSESSEE THAT NEITHER ANY NEW FDR WAS PURCHASED DURING THE YEAR NOR ANY FRESH LOAN WA S TAKEN AND INCOME AS COMPUTED IN PAST AFTER ADJUSTIN G THE INTEREST PAID AGAINST INTEREST RECEIVED AND ONLY NE T INTEREST INCOME WAS TAXED. THE LD. CIT(APPEALS) FO UND THAT AS THE INTEREST RECEIVED AND PAID IS RELATED T O THE SAME CONSTRUCTION BUSINESS, AS SUCH PAYMENT OF INTE REST TO BE ALLOWED AS DEDUCTION AGAINST THE RECEIPT OF I T FOR COMPUTING BUSINESS PROFIT AND NET INTEREST INCOME T O BE INCLUDED AS INCOME FROM BUSINESS FOR THE YEAR. THE LD. 27 CIT(APPEALS) WAS, THEREFORE, INCLINED TO HELD THAT THERE IS NO JUSTIFICATION IN MAKING ANY DISALLOWANCE OF INTE REST AMOUNTING TO RS. 1,89,747/- AND PART OF THIS GROUND WAS ALLOWED. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTE D THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY O RDER OF ITAT CHANDIGARH BENCH IN ITA 1187 OF 2012 FOR ASSESSMENT YEAR 2004-05 VIDE ORDER DATED 06.06.2014 . THE TRIBUNAL DISMISSED THE DEPARTMENTAL APPEAL ON IDENTICAL ISSUE. THE ENTIRE ORDER OF THE TRIBUNAL IN PARA 191 TO 197 OF THE ORDER IS REPRODUCED AS UNDER : ITA NO. 1187/CHD/2012 A.Y 2004-05 REVENUE 191 IN THIS APPEAL THE REVENUE HAS RAISED FOLLOWING GROUNDS: (I) WHETHER THE LD. CIT(A) IS JUSTIFIED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.2674000/- ON ACCOUNT OF GIFT RECEIVED FROM SH . S.P. SINGH WHEN ASSESSEE FAILED TO PROVE THE GENUINENESS OF THE GIFT ? (II) WHETHER ON FACTS AND CIRCUMSTANCES OF THE CASE CIT(A) WAS JUSTIFIED IN ACCEPTING THE GENUINENESS OF A GIFT FROM NON RESIDE NT INDIAN (NRI) BROTHER OF THE ASSESSEE, IN TOTAL DISREGARD TO THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. P R GANAPATHY (2012-TIOL-76-SC-IT) THAT THE ASSESSEE HAS TO SHOW ADEQUACY OF FUNDS IN THE HANDS OF FOREIGN DONOR FOR AFORESAID GIFT DONATION ? (III) WHETHER ON FACTS OF THE CASE ADVERSE AND REBU TTALBE PRESUMPTION SHOULD HAVE BEEN DRAWN ABOUT GENUINENESS OF THE GIFT WHEN THE ASSESSEE OVER A PERIOD OF SEVEN ASSESSMENT YEARS HAS RECEIVED A TOTAL SUM OF RS. 48648199/- CRORES AS GIFT AND ANOTHER SUM OF RS. 9480000/- AS LOAN ? (IV) WHETHER THE LD. CIT(A) ON FACTS AND CIRCUMSTAN CES OF THIS IS JUSTIFIED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS. 1,00,0 00/- U/S 68 ON ACCOUNT OF ALLEGED UNEXPLAINED CASH CREDIT FROM SHRI SURINDER PAL SING H? (V.) WHETHER THE LD. CIT(A) IS JUSTIFIED IN LAW AND ON FACTS IN DELETING THE DISALLOWANCE OF RS. 196,011/- ON ACCOUNT OF EXPENSE S ON INTEREST PAID ON LOAN AGAINST FDR CLAIMED AGAINST INTEREST INCOME FROM OTHER SORU CES IN VIOLATION OF SECTIOHN 57(III)? 28 192 GROUND NO. 1 TO 4 AFTER HEARING BOTH THE PART IES WE FIND THAT THE ISSUES RAISED THROUGH THESE GROUND S ARE IDENTICAL TO THE ISSUES RAISED BY THE REVENUE I N ITA NO. 1193/CHD/2012 IN CASE OF LATE SHRI PRITAM SING H WHICH WE HAVE ADJUDICATED IN ABOVE PARAS. SINCE TH E FACTS OF THE CASE AND THE CONTENTIONS OF BOTH THE P ARTIES ARE IDENTICAL TO THE ISSUES RAISED IN ITA NO. 1193/CHD/2012 FOR ASSESSMENT YEAR 2004-05, FOLLOWI NG THAT ORDER WE HAVE DECIDE THESE ISSUES AGAINST THE REVENUE. 193 GROUND NO. 5 AFTER HEARING BOTH THE PARTIES W E FIND THAT DURING ASSESSMENT PROCEEDINGS THE ASSESSI NG OFFICE NOTICED THAT THE ASSESSEE HAS CLAIMED INTERE ST EXPENSES AMOUNTING TO RS. 196011/- AGAINST THE INCO ME FROM INTEREST ON FDR. HE HAS OBSERVED THAT INTERES T WAS NOT PAID FOR EARNING INTEREST AND ACCORDINGLY Q UERY WAS RAISED IN THIS REGARD. NO REPLY WAS GIVEN AND THEREFORE A SUM OF RS. 196011/- WAS ADDED TO THE INCOME OF THE ASSESSEE. 194 ON APPEAL BEFORE THE LD. CIT(A) IT WAS MAINLY SUBMITTED THAT INTEREST ON FDR RELATES TO PRITAM SI NGH AND SONS PROPRIETARY CONCERN WHICH WAS DOING BUSINE SS OF CIVIL CONSTRUCTION. THE FDRS WERE PURCHASED FRO M BUSINESS FUNDS FOR OBTAINING BANK GUARANTEE FOR EXECUTION OF CONTRACT. NO FDR WAS PURCHASED DURING THE YEAR. THE INTEREST ON FDR WAS DECLARED AS INCO ME OF BUSINESS WHICH HAS BEEN ACCEPTED BY THE ASSESSIN G OFFICER. THEREFORE INTEREST PAID AGAINST LOAN IS R EQUIRED TO BE NETTED OUT AND IN THIS REGARD RELIANCE WAS PA LCED ON THE DECISION OF HONBLE SUPREME COURT IN CASE OF ACG ASSOCIATED CAPSULES PVT LTD. VS. CIT, 343 ITR 89.(S.C). 195 THE LD. CIT(A) ACCEPTED THIS CONTENTION AND DELETED THE ADDITION. 29 196 BEFORE US, THE SUBMISSIONS MADE BEFORE THE LD. CIT(A) WERE REITERATED. IT WAS FURTHER SUBMITTED T HAT INCOME WAS RETURNED AS BUSINESS INCOME AND IN THIS REGARD REFERENCE WAS MADE TO COMPUTATION OF INCOME (COPY PLACED AT PAGE 14 & 15 OF PAPER BOOK). HE AL SO REFERRED TO PG 48 TO 61 AND POINTED OUT THAT IN THI S YEAR THERE WAS NO BUSINESS WHICH BECOME CLEAR FROM COPY OF PROFIT AND LOSS ACCOUNT (PG 48 OF PAPER BOOK). THE TOTAL FDR WERE FOR RS. 41.63 LAKHS AND LOANS FROM FDR IS 26.05 LAKHS. ASSESSEES OWN CAPITAL WAS RS. 27.25 LAKHS. ALL THE FDRS ARE MADE FROM EARLIER YEARS. THESE FDRS WERE PURCHASED FOR COMMERCIAL PURPOSES I.E. FOR OBTAINING BANK GUARANTEE ETC. AND THE LOAN AGAINST FDRS WAS USED FOR CONSTRUCTION BUSINESS. T HUS CLEARLY THE INTEREST ON FDRS WAS BUSINESS INCOME AGAINST WHICH INTEREST PAID, IF ANY, HAS TO BE ALLO WED IN THE ABSENCE OF ANY BUSINESS RECEIPTS DURING THE YEA R. HE AGAIN RELIED ON THE DECISION OF ACG ASSOCIATED CAPSULES PVT LTD. VS. CIT (SUPRA) AND CIT VS. SHRI RAM HONDA POWER EQUIP, 289 ITR 475 (DELHI). 197 WE HAVE GONE THROUGH THE RIVAL SUBMISSIONS CAREFULLY AND FIND THAT ADMITTEDLY THE INCOME FROM INTEREST ON FDR WAS RETURNED AS INCOME FROM BUSINES S AND HAS ALSO BEEN ASSESSED AS INCOME FROM BUSINESS. FURTHER FDRS WERE PURCHASED FOR THE PURPOSE OF OBTAINING BANK GUARANTEE ETC. FOR CONSTRUCTION BUSI NESS I.E. AGAINST BUSINESS PURPOSES. IF ANY LOAN HAS BE EN TAKEN AGAINST THESE FDRS FOR BUSINESS PURPOSES THEN SUCH EXPENDITURE HAS TO BE ALLOWED. SINCE THERE WE RE NO BUSINESS RECEIPTS IN THIS PARTICULAR YEAR I.E. W HY THE ASSESSING OFFICER HAS NOT ACCEPTED THIS CONTENTION. BUT WE ARE OF THE OPINION THAT LOAN WAS OBTAINED FOR BUSINESS PURPOSES SUCH INTEREST HAS TO BE ALLOWED. ACCORDINGLY WE CONFIRM THE ORDER OF THE LD. CIT(A). 198 IN THE RESULT, REVENUE APPEAL IN ITA NO. 1187/CHD/2012 IS DISMISSED. 30 20(I). THE LD. DR, HOWEVER, RELIED UPON ORDER OF TH E ASSESSING OFFICER. 21. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE A RE OF THE VIEW THE ISSUE IS COVERED IN FAVOUR OF THE A SSESSEE BY ORDER OF ITAT CHANDIGARH BENCH FOR ASSESSMENT YE AR 2004-05 IN WHICH DEPARTMENTAL APPEAL ON IDENTICAL ISSUE HAVE BEEN DISMISSED VIDE ORDER DATED 06.06.20 14. FOLLOWING THE SAME, THIS GROUND OF APPEAL OF REVENU E IS ACCORDINGLY DISMISSED. 22. IN THE RESULT, DEPARTMENTAL APPEAL IS DISMISSED . ITA 1172/2012 (A.Y. 2009-10) ASSESSEE'S APPEAL 23. THE LD. COUNSEL FOR THE ASSESSEE DID NOT PRESS GROUND NOS.1, 2 AND 3 OF THE APPEAL OF THE ASSESSEE . THE SAME ARE, THEREFORE, DISMISSED BEING NOT PRESSE D. 24. ON GROUND NO. 4, ASSESSEE CHALLENGED THE ADDITI ON OF RS. 7,43,292/- OUT OF THE JEWELLERY SEIZED FROM THE RESIDENCE OF THE ASSESSEE AND TREATING THE SAME AS UNEXPLAINED INVESTMENT. PARA 18 OF THE ASSESSMENT ORDER DEALS WITH JEWELLERY FOUND IN THE RESIDENCE A ND LOCKER OF THE ASSESSEE AND HIS WIFE. AFTER GIVING B ENEFIT OF 750 GMS. BY THE ASSESSING OFFICER AS PER BOARDS CIRCULAR, BALANCE OF 847.03 GMS. WAS TREATED AS UNEXPLAINED AMOUNTING TO R. 10,54,552/-. THE ASSES SEE CONTENDED THAT HIS FAMILY CONSISTS OF HIS FATHER SH RI 31 PRITAM SINGH, MOTHER SMT. AMRIT KAUR, HIMSELF, SMT. RANJIT KAUR, HIS WIFE AND RAVNIT KAUR, HIS DAUGHTER . THE TOTAL JEWELLERY FOUND DURING THE COURSE OF SEAR CH FROM ASSESSEE SHRI GURJIT SINGH AND SHRI PRITAM SIN GH WAS 2779.98 GMS. APART FROM THE ABOVE JEWELLERY WEIGHING 731.50 RELATES TO SHRI SURINDER PAL SINGH, RESIDING IN DUBAI, BROTHER OF THE ASSESSEE AND SON OF SHRI PRITAM SINGH AS RELEVANT PURCHASE VOUCHERS FRO M DUBAI WAS SEIZED DURING THE COURSE OF SEARCH. THE SAID JEWELLERY WAS SEIZED FROM THE LOCKER OF SHRI PRITAM SINGH AND SHRI SURINDER PAL OBEROI HAD PURCHASED TH E JEWELLERY ON DIFFERENT DATES. THE LD. CIT(APPEALS) MENTIONED THE DETAILS OF BILLS SEIZED FROM THE LOCK ER. IT WAS EXPLAINED THAT ASSESSING OFFICER HAS NOT ALLOWE D CREDIT ON ACCOUNT OF JEWELLERY OF SHRI S.P.SINGH AN D HIS WIFE. IT WAS ALSO EXPLAINED THAT INSTRUCTIONS OF B OARD HAVE NOT BEEN PROPERLY APPLIED. THE LD. CIT(APPEAL S) NOTED THAT ASSESSING OFFICER HAS ALREADY GIVEN BENE FIT OF BOARD INSTRUCTIONS. ADDITIONAL BENEFIT OF 250 GMS. OF RAVNEET KAUR WAS ALSO GIVEN AND ASSESSING OFFICER W AS DIRECTED TO RESTRICT THE ADDITION TO 597.03 GMS. ON LY. THE JEWELLERY RELATING TO SHRI S.P. SIGH WAS ALSO ACCEPTED. THE LD. COUNSEL FOR THE ASSESSEE SUBMITT ED THAT THIS ISSUE IS COVERED BY ORDER OF ITAT CHANDIG ARH BENCH IN THE CASE OF SHRI PRITAM SINGH IN ITA 1176/2012 FOR ASSESSMENT YEAR 2009-10 DATED 06.06.2014, IN WHICH THE TRIBUNAL I N PARA 96 T O 102 32 HELD AS UNDER : 96 GROUND NO. 5 AFTER HEARING BOTH THE PARTIES W E FIND THAT DURING ASSESSMENT PROCEEDINGS THE ASSESSI NG OFFICE NOTICED THAT JEWELLERY VALUED RS. 1423406/- WAS FOUND FROM THE RESIDENCE OF THE ASSESSEE AND SMT. AMRIT KAUR. DETAIL OF JEWELLERY IS AS UNDER: SL.NO. DATE OF SEIZED NAME OF THE ASSESSEE AND PREMISES GROSS WEIGHT IN GMS. AMOUNT(RS.) 1. 27.06.2008 SHRI PRITAM SINGH & SMT. AMRIT KAUR, LOCKER NO. 387, PUNJAB & SIND BANK, PHASE 5, MOHALI 1040.790 RS, 12,52,726/- 2. DO SHRI PRITAM SINGH & AMRIT KAUR, LOCKER NO. 64, CANARA BANK, PHASE 7, MOHALI 142.250 RS. 1,70,680/- TOTAL 1183.04 RS. 14,23,406/- IN RESPONSE TO A QUERY IT WAS MAINLY STATED THAT JEWELLERY WAS NEGLIGIBLE AND WAS RECEIVED BY THE ASSESSEE AT THE TIME OF MARRIAGE AND BIRTH OF HIS CHILDREN FROM HIS PARENTS AND FROM HIS IN-LAWS. FU RTHER RELIANCE WAS PLACED ON THE INSTRUCTIONS ISSUED BY C BDT VIDE INSTRUCTION NO. F.286/63/93-IT(INV)-11 DATED 11.5.1994. THE ASSESSING OFFICER ACCEPTED JEWELLER Y OF 750 GMS IN VIEW OF THE INSTRUCTIONS OF THE CBDT AND ADDED THE BALANCE JEWELLERY OF 433 GMS AS UNEXPLAIN ED INCOME. 97 ON APPEAL, IT WAS MAINLY SUBMITTED THAT FAMILY O F THE ASSESSEE CONSIST OF (1) PRITAM SINGH (ASSESSEE) , (2) MRS. AMRIT KAUR (WIFE), (3) GURJIT SINGH (SON), MRS. RANJIT KAUR (DAUGHTER-IN-LAW) AND (5) RAVNIT KAUR (GRAND DAUGHTER). IT WAS SUBMITTED THAT JEWELLERY R ELATE TO THESE FIVE PERSONS AND SURINDERPAL SINGH OBEROI AND SMT. MANINDER KAUR WIFE OF S.P. SINGH OBEROI. IT WA S POINTED OUT THAT SURINDERPAL SINGH WAS RESIDING IN DUBAI AND 731.50 GMS OF JEWELLERY DIRECTLY RELATE T O HIM FOR WHICH RELEVANT VOUCHERS FROM DUBAI WERE ALSO FO UND DURING SEARCH. SURINDERPAL SINGH HAS PURCHASED THIS 33 JEWELLERY ON DIFFERENT DATES AND COPY OF THE SAME I S AVAILABLE IN THE PAPER BOOK. 98 THE LD. CIT(A) REJECTED THESE CONTENTIONS MAINLY VIDE PARA 13.3 WHICH ARE AS UNDER: BE THAT AS IT MAY, IN THE PRESENT CASE, THE REMAND REPORT OF THE AO ON THE ASSESSEE SUBMISSION INDICATES THAT TOTAL JEWELLERY FOUND WAS 2779.98 GMS AND APART FROM THAT, JEWELLERY WEIGHING 731.50 GMS RELATED TO SHRI SP SI NGH AS PER PURCHASE VOUCHERS SEIZED. THUS IT IS APPARENT THAT THE LD. AO HAD ALR EADY GIVEN DUE BENEFIT AS PER THE BOARDS INSTRUCTIONS AND HAS ACCEPTED THE SOURCE OF INVESTMENT TOO. HENCE, I DO NOT THINK THERE IS ANY NEED TO INTERFERE WITH THE CONCL USIONS DRAWN BY THE LD. AO. 99 BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE LD. CIT( A) AND FURTHER SUBMITTED THAT JEWELLERY IN CASE OF SURINDERPAL SINGH AS WELL AS OTHER FAMILY MEMBERS, HAS NOT BEEN ALLOWED AS PER INSTRUCTIONS OF THE BOARD. 100 ON THE OTHER HAND, THE LD. D.R. FOR THE REVENUE RELIED ON THE ORDER OF THE LD. CIT(A). 101 AFTER CONSIDERING THE RIVAL SUBMISSIONS AND THE MATERIAL ON RECORD, WE FIND THAT TOTAL JEWELLERY F OUND DURING SEARCH WAS AS UNDER: THAT FOLLOWING JEWELERY WAS FOUND DURING THE COURS E OF SEARCH: GURJIT SINGH 1596.94 GM PRITAM SINGH 1183.04 GM 2779.98 GM UNDISPUTEDLY OUT OF THIS SOME JEWELLERY WEIGHING 731.500 GMS WAS BELONGING TO SURINDERPAL SINGH AND HIS FAMILY WHO IS SON OF THE ASSESSEE AND RESIDING IN DUBAI. IN FACT THERE WAS SOME DISPUTE WHETHER CRED IT HAS BEEN GIVEN FOR THAT JEWELLERY OR NOT HOWEVER, UNDISPUTEDLY FACT REMAINS THAT THE JEWELLERY WEIGHI NG 731.50 GMS RELATES TO HIM BECAUSE ALONG WITH THIS JEWELLERY VOUCHERS SHOWING PURCHASE OF THIS JEWELLE RY IN DUBAI WERE ALSO FOUND. FURTHER ONCE THIS JEWELLERY BELONGING TO SURINDERPAL SINGH IS REDUCED AND FURTH ER CREDIT IN TERMS OF BOARD INSTRUCTION IS ALLOWED THE N POSITION BECOMES AS UNDER: 34 TOTAL JEWELLERY FOUND 2779.987 GM LESS JEWELLERY BELONGING TO HIM 731.500 GM NET JEWELLERY 2048.480 GM FURTHER CREDIT REQUIRED TO BE GIVEN FOR MARRIED FEM ALE IS 500 GM EACH, UNMARRIED FEMALE AT 250 GM AND MALE MEMBERS AT 100 GM. THEREFORE CREDIT WOULD BE AS UNDER: MRS. AMRIT KAUR W/O PRITAM SINGH 500 GM MRS. RANJIT KAUR W/O GURJIT SINGH (SON) 500 GM MS. RAVNIT KAUR (GRAND DAUGHTER OF PRITAM SINGH AND DAUGHTER OF GURJIT SINGH 250 GM PRITAM SINGH AND GURJIT SINGH @ 100 GM 200 GM 1450 GM THEREFORE NET JEWELLERY WHICH IS REQUIRED TO BE ADD ED BECAUSE NO EXPLANATION IS AVAILABLE IS 598.48 GMS. THIS JEWELLERY IS REQUIRED TO BE ADDED IN THE HANDS OF PRITAM SINGH AND GURJIT SINGH. SINCE THIS ISSUE HA S BEEN CONSIDERED JOINTLY NO DETAILS HAVE BEEN FURNIS HED BEFORE US FOR INDIVIDUAL JEWELLERY AND THEREFORE WE HOLD THAT OUT OF THIS JEWELLERY WEIGHING 298.48 GMS SHOU LD BE ADDED IN THE HANDS OF THE ASSESSEE AND BALANCE 300 GMS SHOULD BE ADDED IN THE HANDS OF GURJIT SINGH (S INCE THOSE APPEALS ARE ALSO BEING ADJUDICATED THROUGH TH IS ORDER). THIS PROPOSAL WAS ACCEPTED BY THE LD. COUNS EL FOR THE ASSESSEE. ACCORDINGLY WE SET ASIDE THE ORD ER OF THE LD. CIT(A) AND DIRECT THE ASSESSING OFFICER TO MAKE ADDITION ON ACCOUNT OF JEWELLERY WEIGHING 298.48 GM S IN CASE OF THE ASSESSEE. 102 IN THE RESULT, ITA NO. 1176/CHD/2012 IS PARTLY ALLOWED. 25. THE LD. DR, HOWEVER, RELIED UPON ORDER OF THE ASSESSING OFFICER. 35 26. ON CONSIDERATION OF THE ABOVE FACTS IN THE LIGH T OF THE ORDER OF THE TRIBUNAL DATED 06.06.2014 ( SUPRA) WE ARE OF THE VIEW THE ISSUE IS COVERED BY THIS ORDER. THE TRIBUNAL CONSIDERED THE ISSUE OF POSSESSION OF JEWE LLERY JOINTLY IN THE CASE OF SHRI PRITAM SINGH AND SHRI G URJIT SINGH WHICH WAS ALSO CONSIDERED BY THE AUTHORITIES BELOW AND DIRECTED TO MAKE HALF OF THE ADDITION IN THE HANDS OF THE ASSESSEE. WE, THEREFORE, MODIFY THE O RDERS OF AUTHORITIES BELOW AND DIRECT THE ASSESSING OFFIC ER TO RECOMPUTE THE ADDITION IN THE LIGHT OF ORDER OF THE TRIBUNAL IN THE CASE OF SHRI PRITAM SINGH IN ITA 1776/2012 FOR ASSESSMENT YEAR 2009-10 DATED 06.06.2014 (SUPRA). THIS GROUND OF APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 27. ON GROUND NO.5, ASSESSEE CHALLENGED THE ADDITIO N OF RS. 9 LACS WITHDRAWN FROM BANK ACCOUNT, CONSIDER ING THE NAME OF BANK TO BE DIFFERENT IN CERTIFICATE AND CHEQUE. THE ASSESSING OFFICER MADE THE ADDITION OF RS. 9 LACS ON ACCOUNT OF WITHDRAWAL BY CHEQUES SHOWING AS CASH. IT WAS HELD THAT CHEQUE WITHDRAWALS WERE SHO WN AS CASH WITHDRAWALS TO ARTIFICIALLY INFLATE THE CAS H IN HAND. THE ASSESSEE CONTENDED THAT AMOUNT OF RS. 9 LACS ON 09.07.2008 WAS WITHDRAWN FROM BANK THROUGH SHRI K.C.SHARMA. AS PER BANK STATEMENT, NAME OF SHRI K.C.SHARMA WAS MENTIONED IN NARRATION WHEREAS THE SAME WAS TAKEN AS CASH WITHDRAWAL. THE ASSESSEE APPENDED BANK CERTIFICATE THAT CASH WAS WITHDRAWN B Y 36 SHRI K.C.SHARMA. THE LD. CIT(APPEALS) FOUND THAT B ANK CERTIFICATE IS ISSUED BY HDFC BANK, MOHALI BUT THE CONFIRMATION SIGNED BY SHRI K.C. SHARMA IS FROM CENTURIAL BANK, MOHALI (PUNJAB). ADDITION WAS, THEREFORE, CONFIRMED BECAUSE THERE WERE TWO DIFFERE NT BANKS MENTIONED. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT CENTURIAL BANK HAS MERGED WITH HDFC BANK, THEREFORE, CERTIFICATE OF HDFC WAS FILED, COP Y OF WHICH IS FILED AT PAGE 50 OF THE PAPER BOOK. HE HA S SUBMITTED THAT ISSUE WAS CONSIDERED IN THE CASE OF SHRI PRITAM SINGH IN ITA 1176/2012 FOR ASSESSMENT YEAR 2009-10 AND VIDE ORDER DATED 06.06.2014, THE ADDITI ON HAS BEEN DELETED. THE FINDINGS OF TRIBUNAL IN PARA 90- 95 ARE REPRODUCED AS UNDER : 90 GROUND NO. 4 AFTER HEARING BOTH THE PARTIES W E FIND THAT DURING ASSESSMENT PROCEEDINGS THE ASSESSI NG OFFICER NOTICED THAT SPECIAL AUDITOR HAD EXAMINED THE BOOKS OF ACCOUNTS AND FOUND THAT THERE WERE SOME WITHDRAWAL FROM BANK WHICH WAS SHOWN AS CASH WITHDRAWAL AS PER FOLLOWING DETAIL: CENTURION BANK OF PUNJAB 18735 PRITAM SINGH DATE PARTICULAR AMOUNT 05.05.2008 DALIP SINGH 8,54,000 08.05.2008 DALIP SINGH 7,00,000 21.05.2008 DALIP SINGH 9,00,000 TOTAL 24,54,000 SPECIAL AUDITOR HAD FURTHER OBSERVED THAT THESE PAYMENTS ARE CHEQUE PAYMENTS. IN RESPONSE TO THE QUERY RAISED BY THE ASSESSING OFFICER THE ASSESSEE FAILED TO FILE ANY PLAUSIBLE EXPLANATION. THEREFO RE THE 37 ASSESSING OFFICER ADDED A SUM OF RS. 2454000/- TO T HE INCOME OF THE ASSESSEE. 91 BEFORE THE LD. CIT(A) IT WAS SUBMITTED THAT DILI P SINGH WAS ONE OF THE EMPLOYEE OF THE ASSESSEE AND H AD WITHDRAWN VARIOUS AMOUNTS ON VARIOUS DATES ON BEHAL F OF THE ASSESSEE AND IN THIS REGARD A CERTIFICATE FR OM HDFC BANK (SINCE CENTURION BANK HAS MERGED WITH HDFC) WAS FILED. THE ASSESSING OFFICER REJECTED TH ESE EVIDENCES IN THE REMAND PROCEEDINGS BY OBSERVING TH AT THESE DETAILS WERE NOT FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE ASSESSEE IN HIS COMMENTS SIMPLY REITERATED THE SUBMISSIONS AND EMPHASIZED THAT A CERTIFICATE FROM DALIP SINGH WAS FILED IN RESPONSE TO THE PROCEEDINGS U/S 133(6). 92 THE LD. CIT(A) DID NOT FIND FORCE IN THE SUBMISSIONS BECAUSE CONFIRMATION LETTER WAS NOT DAT ED AND FURTHER SAME WAS NOT SUPPLEMENTED BY ANY EVIDENCE AND THEREFORE CONFIRMED THE ADDITION. 93 BEFORE US, THE SUBMISSIONS MADE BEFORE THE ASSESSING OFFICER AND CIT(A) WERE REITERATED. IT W AS POINTED OUT THAT BANK CERTIFICATE SHOULD HAVE BEEN TRUSTED. 94 ON THE OTHER HAND, THE LD. D.R. FOR THE REVENUE STRONGLY SUPPORTED THE ORDER OF THE LD. CIT(A). 95 WE HAVE GONE THROUGH THE RIVAL SUBMISSIONS CAREFULLY AND FIND THAT COPY OF THE CERTIFICATE FRO M HDFC BANK IS AVAILABLE AT PAGE 48 OF THE PAPER BOOK WHIC H CLEARLY SHOW THAT FOLLOWING AMOUNTS WERE WITHDRAWN. THE CERTIFICATE READS AS UNDER: DATED: 02.05.2012 TO WHOMSOEVER IT MAY CONCERN THIS IS TO CERTIFY THAT WE ARE HOLDING IN THE NAME OF MR. PRITAM SINGH ACCOUNT NO. 110001000187350 ( 13071570002545) WITH OUR BRANCH F OLLOWING CHEQUES WERE PAID FROM ACCOUNT AS PER DETAILS: 38 CHEQUE NO. DATE AMOUNT MODE OF PAYMENT 806882 05/05/08 8,54,000.00 CASH WITHDRAWAL SELF/BE ARER 806884 08/05/08 7,00,000.00 CASH WITHDRAWAL SELF/BE ARER 806881 20/05/2008 9,00,000.00 CASH WITHDRAWAL SELF/ BEARER 806887 04/09/08 1,00,000.00 CASH WITHDRAWAL SELF/BE ARER THIS LETTER IS ISSUED ON THE REQUEST OF ACCOUNT HOL DER. FOR HDFC BANK LTD. YOURS FAITHFULLY SD/- (AUTHORISED SIGNATORY) ABOVE CLEARLY SHOW THAT VARIOUS AMOUNTS HAVE BEEN WITHDRAWN BY CASH. THE AMOUNT HAS BEEN WITHDRAWN FROM SAME ACCOUNT WHICH WAS DOUBTED BY THE SPECIAL AUDITOR. IN OUR OPINION, IT DOES NOT MAKE DIFFERENC E THAT WHO HAS WITHDRAWN THE AMOUNT. ONCE THE BANK HAS CERTIFIED THAT CASH HAS BEEN WITHDRAWN THEN SAME CANNOT BE ADDED TO THE INCOME BECAUSE IT DOES NOT MATTER WHO HAS GONE TO THE BANK TO WITHDRAW THE CAS H. THEREFORE WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND DELETE THIS ADDITION. 28. AFTER CONSIDERING RIVAL SUBMISSIONS IN THE LIGH T OF ORDER OF THE TRIBUNAL IN THE CASE OF SHRI PRITAM SI NGH DATED 06.06.2014 (SUPRA) AND BANK CERTIFICATE FILED ON RECORD, WE ARE OF THE VIEW THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY ORDER OF THE TRIBUNAL. IT IS CL EARLY NOTED THAT CENTURIAN BANK HAS MERGED WITH HDFC BANK , THEREFORE, THIS ISSUE IS NOT PROPERLY CONSIDERED BY THE AUTHORITIES BELOW. THE ASSESSEE PROVED THE FACT OF WITHDRAWAL FROM BANK THROUGH SHRI K.C. SHARMA. WE, ACCORDINGLY, SET ASIDE THE ORDERS OF AUTHORITIES BE LOW AND DELETE THE ADDITION. 39 29. GROUND NO. 5 OF APPEAL OF THE ASSESSEE IS ACCORDINGLY ALLOWED. 30. ON GROUND NO. 6, ASSESSEE CHALLENGED THE ADDITI ON OF RS. 11 LACS ON ACCOUNT OF AMOUNT RECEIVED FROM S HRI PRITAM SINGH IN ASSESSMENT YEAR 2006-07. THE ASSESSING OFFICER NOTED FROM THE STATEMENT OF AFFAI RS AND BOOKS OF ACCOUNT OF ASSESSEE THAT ASSESSEE RECE IVED RS. 11 LACS ON VARIOUS DATES FROM SHRI PRITAM SINGH , HIS FATHER. THE GENUINENESS OF THE SAME WAS NOT PROVED . THE ASSESSEE CONTENDED THAT RS. 11 LACS WAS RECEIVE D FROM HIS FATHER IN FINANCIAL YEAR 2005-06 AND AMOUN TS HAVE BEEN RECEIVED; 16.05.2005 RS. 2 LACS, 25.05. 2005 RS. 4 LACS AND 01.07.2005 RS. 5 LACS. THE ASSE SSING OFFICER HAS TAKEN YEAR 2005 AS 2008 BY MISTAKE AND MADE THE ADDITION. THE LD. CIT(APPEALS) ALSO CONFI RMED THE ADDITION. 31. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE A RE OF THE VIEW THE ADDITION IS WHOLLY UNJUSTIFIED. 32. THE LD. CIT(APPEALS) AT THE APPELLATE STAGE, CA LLED FOR THE REMAND REPORT FROM THE ASSESSING OFFICER, C OPY OF WHICH IS FILED AT PAGE 33 OF THE PAPER BOOK DATE D 11.06.2012 IN WHICH ASSESSING OFFICER, ON THIS ISSU E HAS MENTIONED THAT THE CORRECT DATES OF AMOUNT RECEIVED FALLS IN ASSESSMENT YEAR 2005-06 BECAUSE THE DATES ARE 16.05.2005, 25.05.2005 AND 01.07.2005, WHICH HAVE BEEN TAKEN AS YEAR 2008 AGAINST YEAR 2005. THIS FA CT 40 WOULD CLEARLY REVEAL THAT ASSESSING OFFICER ACCEPTE D THAT IT WAS MISTAKE IN TREATING YEAR 2005 AS YEAR 2008, THEREFORE, THIS ADDITION CANNOT BE MADE IN ASSESSME NT YEAR 2009-20. WE, ACCORDINGLY, SET ASIDE THE ORDER S OF AUTHORITIES BELOW AND DELETE THE ADDITION. GROUND NO. 6 OF THE APPEAL OF THE ASSESSEE IS ALLOWED. 33. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ITA 1192/2012 (A.Y.2009-10 ) DEPARTMENTAL APPEAL 34. THE REVENUE ON GROUND NO. 1, 2 AND 3 CHALLENGED DELETION OF ADDITION OF RS. 60 LACS ON ACCOUNT OF G IFT RECEIVED FROM SHRI S.P.SINGH. LD. REPRESENTATIVES OF BOTH THE PARTIES SUBMITTED THAT THIS ISSUE IS SAME AS HAVE BEEN CONSIDERED IN DEPARTMENTAL APPEAL IN ITA 1191/2012 FOR ASSESSMENT YEAR 2008-090 IN WHICH, WE HAVE DISMISSED DEPARTMENTAL APPEAL ON IDENTICAL ISS UE. FOLLOWING THE REASONS FOR DECISION FOR ASSESSMENT Y EAR 2008-09 ( SUPRA), WE DISMISS THIS GROUND OF APPEAL OF THE REVENUE. 35. ON GROUND NO.4, REVENUE CHALLENGED DELETION OF ADDITION OF RS. 40 LAS UNDER SECTION 68 OF THE ACT ON ACCOUNT OF MONEY RECEIVED FROM SMT. MANINDER KAUR. THE ASSESSEE CONTENDED THAT ASSESSEE RECEIVED A SUM OF RS. 40 LACS FROM SMT. MANINDER KAUR, WIFE OF SHRI S.P.SINGH. IT WAS SUBMITTED THAT GIFT WAS RECEIVED FROM BANKING CHANNEL. THE CONFIRMATION ALONGWITH BANK 41 STATEMENT WAS FILED IN SUPPORT OF THE SAME IN WHICH IT WAS ALSO EXPLAINED THAT SHRI S.P.SINGH HAS GIVEN RS . 41 LACS TO HIS WIFE FOR THE PURPOSE OF GIVING TO THE A SSESSEE. 35(I) THE LD. CIT(APPEALS) NOTED THAT SMT. MANINDER KAUR IS WIFE OF SHRI S.P.SINGH BROTHER OF THE ASSES SEE, WHOSE IDENTITY AND CREDIT WORTHINESS HAS BEEN ACCEP TED BY THE REVENUE DEPARTMENT. IN THE INFORMATION UNDE R SECTION 133(6), THE TRANSACTION HAS BEEN CONFIRMED AND BANK STATEMENTS HAVE BEEN FILED TO PROVE GENUINENES S OF THE TRANSACTION IN THE MATTER. SINCE ALL TRANSACTI ONS HAVE BEEN ROUTED THROUGH BANKING CHANNELS, THEREFOR E, ADDITION WAS DELETED. 36. AFTER CONSIDERING RIVAL SUBMISSIONS, WE DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE REVENUE. THE REVENUE DEPARTMENT HAS ALREADY ACCEPTED GENUINENESS OF THE GIFT MADE BY SHRI S.P.SINGH TO THE ASSESSEE AND OTHERS IN HIS PERSONAL ASSESSMENT ORDERS. ACCORDIN G TO THE STATEMENTS OF THE ASSESSEE, THE ASSESSEE RECEIV ED RS. 40 LACS FROM SMT. MANINDER KAUR, WIFE OF SHRI S.P.SINGH. THE ASSESSING OFFICER HAS VERIFIED UNDE R SECTION 133(6) OF THE ACT AT THE APPELLATE STAGE TH AT SUM INVOLVED IS EVIDENT FROM BANK STATEMENT OF SMT. MANINDER KAUR BUT HE OBJECTED TO FILING OF THE CONFIRMATION AT APPELLATE STAGE. THE LD. CIT(APPEA LS) NOTED THAT SINCE MANINDER KAUR HAS RECEIVED THE SOU RCE OF GIVING OF AMOUNT FROM HER HUSBAND IN ASSESSEE'S CASE AND GENUINENESS OF THE GIFTS HAVE BEEN ACCEPTED, 42 THEREFORE, LD. CIT(APPEALS) ALSO ACCEPTED GIVING OF GIFT BY SMT. MANINDER KAUR TO THE ASSESSEE. 37. CONSIDERING TOTALITY OF THE FACTS AND CIRCUMSTA NCES AND OTHER ISSUES INVOLVED IN DEPARTMENTAL APPEAL, W OULD CLEARLY REVEAL THAT TRIBUNAL IN THE CASE OF ASSESSE E AND OTHERS IN EARLIER YEARS HAS ACCEPTED THE GENUINENES S OF THE GIFTS GIVEN BY SHRI S.P.SINGH TO ASSESSEE AND O THERS, THEREFORE, WHEN SHRI S.P.SINGH GAVE THE AMOUNT TO H IS WIFE FOR GIVING THE AMOUNT TO THE ASSESSEE, IT WOUL D NOT MAKE ANY DIFFERENCE IN THE CHARACTER OF THE TRANSAC TION. THE LD. CIT(APPEALS), ON PROPER APPRECIATION OF FAC TS AND MATERIAL ON RECORD, RIGHTLY DELETED THE ADDITION. WE, THEREFORE, DO NOT FIND ANY JUSTIFICATION TO INTERFE RE WITH THE ORDERS OF THE LD. CIT(APPEALS). 38. IN THE RESULT, THIS GROUND OF APPEAL OF THE REV ENUE IS DISMISSED. 39. IN THE RESULT, DEPARTMENTAL APPEAL IS DISMISSED . 40. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE PARTLY ALLOWED AND DEPARTMENTAL APPEALS ARE DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (RANO JAIN) (BHAVNES H SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 8 TH APRIL, 2016. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT,DR ASSISTANT REGISTRAR, ITAT/CHD