Appeal Details
Counselvise Citation
[2021] 107 COUNSELVISE.COM (IT) 3586 (ITAT-JAIPUR)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
2 year(s) 1 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
12-10-2021
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
B
Assessment Year
2011-2012
Appeal Filed On
11-10-2019
Judgement Text
VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENC HES B JAIPUR JH LAANHI XKSLKBZ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA- @ ITA NO. 1190/JP/2019 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2011-12 SHRI PRAKASH CHAND KOTHARI B-4A, KOTHARI HOUSE, PRITHVIRAJ ROAD, C- SCHEME, JAIPUR CUKE VS. DCIT, CENTRAL CIRCLE-02, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAPBK2884R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA- @ ITA NO. 1298/JP/2019 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2011-12 THE DY. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-02, JAIPUR CUKE VS. SHRI PRAKASH CHAND KOTHARI B-4A, KOTHARI HOUSE, PRITHVIRAJ ROAD, C- SCHEME, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAPBK2884R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA- @ ITA NO. 66/JP/2020 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2011-12 SHRI PRAKASH CHAND KOTHARI B-4A, KOTHARI HOUSE, PRITHVIRAJ ROAD, C- SCHEME, JAIPUR CUKE VS. DCIT, CENTRAL CIRCLE-02, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAPBK2884R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SH. RAJEEV SOGANI (CA) & SH. ROHAN SOGANI (CA) JKTLO DH VKSJ LS @ REVENUE BY : SH. B. K. GUPTA (PCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 27/07/2021 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 12/10/2021 VKNS'K@ ORDER ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 2 PER: VIKRAM SINGH YADAV, A.M. THESE ARE TWO CROSS APPEALS FILED BY THE ASSESSEE A ND THE REVENUE AGAINST THE ORDER OF LD. CIT(A)-4, JAIPUR DATED 02. 09.2019 FOR AY 2011-12 AND ANOTHER APPEAL FILED BY THE ASSESSEE AGAINST THE OR DER OF LD. CIT(A)-4, JAIPUR DATED 13.11.2019 FOR AY 2011-12. SINCE THESE ARE C ONNECTED MATTERS, ALL THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER. 2. IN ITA NO. 1190/JP/2019, THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL:- 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE LD. AO IN REOPENING THE CASE OF THE ASSESSEE U/S 147 OF THE INCOME TAX ACT, 1961. T HE ACTION OF THE LD. CIT(A) IS ILLEGAL, UNJUSTIFIED, ARBITRARY AND AGAIN ST THE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY QUASHING THE ENTIRE RE-ASSESSMENT PROCEEDINGS, BEING ILLEGAL AND WITHOUT JURISDICTION . 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE LD. AO IN ISSUING NOTICE U/S 148 OF THE INCOME TAX ACT, 1961, WITHOUT OBTAINING PROP ER SANCTION U/S 151 OF THE INCOME TAX ACT, 1961. RELIEF MAY PLEASE BE G RANTED BY QUASHING THE ENTIRE RE-ASSESSMENT PROCEEDINGS, BEING ILLEGAL AND WITHOUT JURISDICTION. 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, LD. AO HAS ERRED IN REOPENING THE ASSESSMENT U/S 147 INSTEAD O F SECTION 153C OF THE INCOME TAX ACT, 1961. THE ACTION OF THE LD. AO IS I LLEGAL, UNJUSTIFIED, ARBITRARY AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY QUASHING THE REASSESSMENT PROCEEDINGS BEING ILLE GAL AND WITHOUT JURISDICTION. ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 3 3. IN ITA NO. 1298/JP/2019, THE REVENUE HAS TAKEN T HE FOLLOWING GROUNDS OF APPEAL:- 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE & IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDIT ION OF RS. 25,00,00,000/- ON ACCOUNT OF CASH LOAN IN SPITE OF THE FACT THAT THERE IS DIRECT NEXUS BETWEEN RAMESH CHAND MAHESHWARI AND THE ASSESSEE, SH. PRAKASH CHAND KOTHARI AS CORROBORATED IN SEIZED DOCUMENTS, PEN DRIVES, PHONE DIRECTORY, NAME, SURNAME AND ADDRESS. THE LD. CIT(A) HAS ERRED IN NOT ACKNOWLEDGING THE CORROBORATIVE EVIDEN CE FOUND IN PEN DRIVE WHICH REVEALS ASSESSEE NAMES, OFFICE ADDRESS AND MOBILE NUMBER. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE & IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDIT ION OF RS. 90,58,625/- MADE ON ACCOUNT OF INTEREST CHARGED ON CASH LOAN OF RS. 25,00,00,000/- ON ACCOUNT OF NON-PROVIDING OF THE OPPORTUNITY OF C ROSS OBJECTION TO THE ASSESSEE. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE & IN LAW THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION O F RS. 25,00,00,000/- MADE ON ACCOUNT OF CASH LOAN AND INTEREST CHARGED T HEREON AMOUNTING TO RS. 90,58,625/- IN SPITE OF THE FACT THAT THE SH . RAMESH CHAND MAHESHWARI SURRENDERED UNDISCLOSED INCOME ON ACCOUN T OF CASH LOAN & COMMISSION BEFORE HONBLE SETTLEMENT COMMISSION WHE REIN THE ASSESSEE WAS ONE OF THE LENDER OF CASH LOAN. 4. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE & IN LAW THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION O F RS. 50,05,578/- IN SPITE OF THE FACT THE LD. CIT HAS NOT DISCUSSED THE ISSUE IN THE APPELLATE ORDER. ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 4 4. THE FACTS OF THE CASE ARE THAT THE ASSESSEE FILE D HIS ORIGINAL RETURN OF INCOME ON 29.09.2011 DECLARING TOTAL INCOME OF RS. 1,10,86,623/- WHICH WAS TAKEN UP FOR SCRUTINY AND THEREAFTER, THE ASSESSMEN T WAS COMPLETED U/S 143(3) OF THE ACT VIDE ORDER DATED 31.03.2013 WHEREIN THE RETURNED INCOME WAS ACCEPTED. SUBSEQUENTLY, SEARCH AND SEIZURE OPERATI ONS WERE CARRIED OUT U/S 132 IN CASE OF RAMESH MANIHAR GROUP ON 07.01.2016 W HEREIN CERTAIN INFORMATION/DOCUMENTS WERE SEIZED AND BASIS INFORMA TION RECEIVED FROM THE OFFICE OF DCIT, CENTRAL CIRCLE-3, JAIPUR ON 29.03.2 018, THE ASSESSING OFFICER RECORDED REASONS THAT INCOME HAS ESCAPED ASSESSMENT IN THE HANDS OF THE ASSESSEE AND NOTICE U/S 148 OF THE ACT WAS ISSUED O NLINE ON 31.03.2018 AFTER TAKING REQUISITE APPROVAL OF THE COMPETENT AUTHORIT Y AND DULY SERVED ON THE ASSESSEE ON THE SAME DATE. 5. IN THE REASONS SO RECORDED BEFORE THE ISSUANCE O F NOTICE U/S 148, THE ASSESSING OFFICER HAS STATED THAT INFORMATION HAS B EEN RECEIVED FROM THE OFFICE OF DCIT, CENTRAL CIRCLE-3, JAIPUR THAT SEARCH AND S EIZURE ACTION U/S 132 OF THE ACT WAS CARRIED OUT IN THE CASE OF RAMESH MANIHAR G ROUP WHICH HAS BEEN INDULGING IN CASH LOAN FINANCING ON A LARGE SCALE. DURING THE COURSE OF SEARCH, VOLUMINOUS DATA COMPRISING OF EXCEL SHEETS IN 18 PE N-DRIVES WERE SEIZED DURING THE COURSE OF SEARCH ACTION AT THE MAIN OFFI CE OF THE RAMESH MANIHAR GROUP AT 303, RATNA SAGAR, MSB KAA RASTA, JOHARI BA ZAR, JAIPUR WHICH INCLUDED DETAILS OF CASH LOANS FINANCED BY THE RAMESH MANIHA R GROUP. IT WAS FOUND THAT THE PERSONS OF THE SAID GROUP NAMELY SH. RAMESH CHA ND MAHESHWARI AND SH. MANMOHAN KRISHAN BAGLA WERE ENGAGED AS FINANCE BROK ERS FOR ARRANGING CASH LOANS BETWEEN VARIOUS BORROWERS AND LENDERS WHICH W ERE NOT REFLECTED IN THE BOOKS OF ACCOUNTS AND THAT THE BROKERAGE RECEIVED F OR SUCH UNRECORDED CASH TRANSACTIONS WAS ALSO NOT OFFERED FOR TAXATION BY T HE GROUP. IT HAS ALSO BEEN FOUND THAT THE FIGURES IN THE AFORESAID DATA WERE S UPPRESSED BY FIVE ZEROES. THE ASSESSING OFFICER THEREAFTER HAS LISTED DOWN CE RTAIN DETAILS OF THE TRANSACTIONS STATING THAT THE SAME RELATES TO THE A SSESSEE AND FROM THE PERUSAL OF THE INFORMATION, IT IS FOUND THAT THE ASSESSEE H AS PAID CASH LOAN OF RS. 25 ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 5 CRORES OUT OF HIS INCOME FROM UNDISCLOSED SOURCES I N A.Y 2011-12 AND RECEIVED INTEREST ACCORDINGLY. THE ASSESSING OFFICER ALSO ST ATED THAT DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS NOT FURNIS HED THE COPY OF CASH BOOK FOR THE YEAR UNDER CONSIDERATION AND NOT SHOWN THE SAME IN THE LOANS AND ADVANCES GIVEN BY HIM IN THE BALANCE SHEET AND THE ASSESSEE HAS CLEARLY FAILED TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECE SSARY FOR DETERMINATION OF INCOME FOR A.Y 2011-12. BASIS DETAILED ENQUIRIES MA DE BY THE INVESTIGATION WING AND MATERIAL AVAILABLE ON THE ASSESSMENT RECOR DS, THE ASSESSING OFFICER STATED THAT HE HAS REASON TO BELIEVE THAT THE INCOM E OF RS. 25 CRORES IN THE FORM OF LOAN GIVEN IN CASH AND INTEREST THEREON HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF THE ACT IN THE HANDS OF THE ASSESSEE. 6. THEREAFTER, ON RECEIPT AND IN COMPLIANCE TO THE NOTICE ISSUED U/S 148 OF THE ACT, THE ASSESSEE FILED HIS RETURN OF INCOME DE CLARING TOTAL INCOME OF RS. 1,10,86,623/- AS ORIGINALLY RETURNED AND ASSESS ED U/S 143(3) OF THE ACT. THEREAFTER, NOTICES U/S 143(2) AND 142(1) OF THE AC T WERE ISSUED AND COPY OF THE REASONS WAS ALSO PROVIDED TO THE ASSESSEE. THE ASSESSEE FILED HIS OBJECTIONS WHICH WERE DISPOSED OFF VIDE ORDER DATED 26.10.2018. THEREAFTER, THE ASSESSEE WAS ISSUED A SHOW CAUSE AS TO WHY THE ADDITION OF RS. 25 CRORES SHOULD NOT BE MADE AS UNACCOUNTED INCOME ALONG INTE REST @ 1% PER MONTH. 7. IN COMPLIANCE TO THE SAID SHOW CAUSE NOTICE, THE ASSESSEE ASKED THE ASSESSING OFFICER TO PROVIDE ALL THE RELEVANT DOCUM ENTS RELIED UPON BY THE DEPARTMENT FOR MAKING SUCH ADDITIONS AS WELL AS OPP ORTUNITY FOR CROSS EXAMINATION. THE COPIES OF DOCUMENTS WERE PROVIDED TO THE ASSESSEE AND THEREAFTER, THE ASSESSEE FURNISHED HIS REPLY STATIN G THAT HE, AT NO POINT OF TIME, DURING THE RELEVANT PREVIOUS YEAR OR OTHERWISE, HAS GIVEN ANY AMOUNT IN CASH, AS LOAN OR OTHERWISE, THROUGH ANY PERSON, INCLUDING SH. RAMESH CHAND MAHESHWARI. WITHOUT PREJUDICE, IT WAS FURTHER SUBMI TTED THAT FROM THE DOCUMENTS SO PROVIDED, THE ASSESSEE IS UNABLE TO UN DERSTAND AS TO HOW THE ASSESSING OFFICER HAS INFERRED THAT HE HAS PROVIDED CASH LOANS TO DIFFERENT ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 6 PERSONS THROUGH SH. RAMESH CHAND MAHESHWARI. IT WAS SUBMITTED THAT THE STATEMENTS OF SHRI RAMESH CHAND MAHESHWARI ARE FULL OF CONTRADICTIONS AND EVEN CONTRADICTIONS PERSIST IN THE REASONS RECORDED VIS-A-VIS DOCUMENTS/STATEMENTS PROVIDED TO THE ASSESSEE. IT W AS FURTHER SUBMITTED BY THE ASSESSEE THAT THE ASSESSING OFFICER MAY POINT O UT SPECIFIC PORTIONS OF THE STATEMENTS OF SH. RAMESH CHAND MAHESHWARI, ON THE B ASIS OF WHICH HE CONCLUDED THE INVOLVEMENT OF ASSESSEE IN PROVIDING CASH LOANS AND FOR WHICH THE CASE OF ASSESSEE WAS REOPENED. IT WAS FURTHER S UBMITTED THAT WHERE THE ASSESSING OFFICER WISHES TO RELY ON THE STATEMENT O F SH. RAMESH CHAND MAHESHWARI, THE ASSESSEE MAY BE ALLOWED AN OPPORTUN ITY TO CROSS EXAMINE HIM AND IN ABSENCE OF SUCH CROSS EXAMINATION, SUCH STAT EMENTS/DOCUMENTS CANNOT BE USED AGAINST THE ASSESSEE IN ANY MANNER WHATSOEV ER. 8. THE REPLY SO FURNISHED BY THE ASSESSEE WAS EXAMI NED BY THE ASSESSING OFFICER AND AS PER THE ASSESSING OFFICER, REPLY OF THE ASSESSEE IS OF ROUTINE NATURE HAVING NO EVIDENCE TO CONTRADICT THE INFORMA TION AVAILABLE WITH THE REVENUE AND DULY INCORPORATED IN THE REASONS FOR RE OPENING OF THE CASE AND THE ASSESSEE HAS FAILED TO SUBSTANTIATE THE ONUS CA ST UPON HIM ABOUT THE IMPUGNED TRANSACTIONS OF RS. 25 CRORES WHERE THE AS SESSEE HAS PROVIDED CASH LOANS THROUGH RAMESH MANIHAR GROUP TO VARIOUS PARTI ES. 9. THE ASSESSING OFFICER THEREAFTER STATED THAT DUR ING THE COURSE OF SEARCH AS WELL AS IN POST SEARCH PROCEEDINGS, STATEMENTS O F THE AFORESAID PERSONS OF RAMESH MANIHAR GROUP WERE TAKEN IN WHICH THEY HAVE ADMITTED THAT THESE TRANSACTIONS WERE MADE BY THEM AND AMOUNTS WERE TAK EN IN CASH FROM THE LENDERS AND THE SAME WAS ADVANCED TO THE BORROWERS IN CASH, AND THEY EARNED COMMISSION ON THESE TRANSACTIONS. FURTHER, VARIOUS INCRIMINATING DOCUMENTS WERE FOUND AND SEIZED BY THE INVESTIGATION WING OF THE DEPARTMENT, WHICH INCLUDES LOOSE PAPERS, PEN DRIVES ETC. ON ANALYSIS OF THE SEIZED DOCUMENTS PARTICULARLY PEN DRIVES, IT HAS BEEN FOUND THAT THE LENDERS AS WELL AS THE BORROWERS ARE THE RENOWNED AND WELL KNOWN PERSONS/B USINESS GROUP OF JAIPUR ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 7 AND THE ASSESSEE IS ONE OF THEM. ON EXAMINATION OF THE DOCUMENTS AND DATA IN PEN DRIVES, IT HAS BEEN NOTED THAT ONE PEN DRIVE IS HAVING NAMES IN SHORT/CODE WORD JAGAT.XLSX THAT NAMES OF THE LENDERS AS WELL AS BORROWERS WERE NOTED IN CODE NAME OR MAYBE SAY IN SHORT NAME LIKEWISE PRAK ASH CHAND KOTHARI THE ASSESSEE AS PCK. THIS SHORT NAME IS AGAIN VERIFIA BLE WITH ANOTHER PEN DRIVE NAMELY FROM & TO GROUP.XLSX, WHERE NAME OF THE AS SESSEE PCK, IS MENTIONED ALONG WITH HIS FULL NAME ADDRESS IN THE SEIZED DOCU MENTS. ACCORDINGLY, IT IS PROVED THAT THE ASSESSEE WAS THE ONLY PERSON WHO HA S GIVEN HIS UNACCOUNTED CASH FOR LENDING THROUGH THE RAMESH MANIHAR GROUP. ON FURTHER EXAMINATION OF THESE PEN DRIVES, IT WAS ALSO FOUND THAT AMOUNT OF TRANSACTION WAS MENTIONED AFTER SUPPRESSING FIVE ZEROS I.E. RS. 2 5,00,00,000/- WAS MENTIONED AS 2500 IN THE FORM OF DIFFERENT ENTRIES. IN THESE PEN DRIVES, IT WAS ALSO MENTIONED, AS FOR WHICH PERIOD AND ON WHAT RATE OF INTEREST, THE AMOUNT WAS ADVANCED TO THE BORROWERS. THE EXCEL SHEET NOTINGS EXTRACTED FROM THE JAGAT. XIS FROM THE THE PEN DRIVE IN POSSESSION OF RAMESH MANIHAR (FINANCE BROKER) AS ABOVE REVEALS THAT NAME OF THE PERSON, SURNAME, FIRM, OFFICE ADDRESS AND PHONE NO. (I.E PRAKASH CHAND JI, KOTHARI, KGK, JEWE LLERS, 73, BARNALA HOUSE, 2 ND CROSSING, HALDIYON KA RASTA, JOHARI BAZAR, JAIPUR RESPECTIVELY) ARE RELATED TO SHRI PRAKASH CHAND KOTHARI (PCK). AS PER RECORDS AND PHONE DIRECTORY, THE SAID DETAILS PERTAIN TO THE ASSESSEE (I.E. SHRI PRA KASH CHAND KOTHARI OF KGK GROUP). HENCE ALL THE ABOVE TRANSACTIONS OF CASH LO ANS PERTAIN TO THE ASSESSEE. 10. THE ASSESSING OFFICER, THEREAFTER, REFERRED TO THE STATEMENT OF SH. RAMESH CHAND MAHESHWARI DATED 07.01.2016 RECORDED O N OATH U/S 132(4) OF THE ACT AND HIS SUBSEQUENT STATEMENT DATED 08.11.20 17 RECORDED U/S 131 OF THE ACT AND REPRODUCED CERTAIN QUESTIONS AND REPLIE S SO SUBMITTED BY HIM. THE ASSESSING OFFICER FURTHER STATED THAT AFTER SEARCH OPERATIONS, RAMESH MANIHAR GROUP AND ITS ASSOCIATES HAVE FILED THEIR APPLICATI ON BEFORE THE THE INCOME TAX SETTLEMENT COMMISSION. IN THEIR APPLICATION FILED B EFORE THE SETTLEMENT COMMISSION, THEY HAVE SURRENDERED THE INCOME SO EAR NED AS COMMISSION ON ACCOUNT OF THESE UN-RECORDED OR UNACCOUNTED TRANSAC TIONS AND DUE TAXES HAS ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 8 ALSO BEEN PAID. THE ASSESSING OFFICER BASIS THE SAI D APPLICATION FILED BY THE RAMESH MANIHAR GROUP STATED THAT IT CAN CLEARLY BE DEDUCED THAT THE ASSESSEE ALSO MADE TRANSACTIONS REGARDING LENDING ITS UNACCO UNTED MONEY THROUGH SAID GROUP AND ADVANCED THE SAME OUT OF BOOKS TO EARN IN TEREST INCOME WHICH WAS ALSO NOT RECORDED IN THE BOOKS OF ACCOUNTS. 11. REGARDING ASSESSEE REQUEST TO PROVIDE CROSS EXA MINATION OF THESE PERSONS WHOSE STATEMENTS WERE RECORDED AND RELIED U PON, THE ASSESSING OFFICER STATED THAT THE RIGHT OF CROSS EXAMINATION IS NOT AN ABSOLUTE RIGHT AND DEPENDS UPON FACTS AND CIRCUMSTANCES OF THE EACH CA SE AND IN THE INSTANT CASE, THE ASSESSEE HAS BEEN ALLOWED AMPLE OPPORTUNI TY BUT HE HAS FAILED TO FURNISHED ANY EVIDENCE CONTRADICTING THE INFORMATIO N AVAILABLE WITH THE REVENUE AND NO SUBSTANTIVE MATERIAL HAS BEEN PRODUC ED BY THE ASSESSEE. 12. IT WAS ACCORDINGLY HELD BY THE ASSESSING OFFICE R THAT THE ASSESSEE ADVANCED A SUM OF RS. 25 CRORES IN CASH WHICH IS NO T RECORDED IN HIS BOOKS OF ACCOUNTS THROUGH RAMESH MANIHAR GROUP AND SAME WAS BROUGHT TO TAX IN THE HANDS OF THE ASSESSEE. FURTHER, IT WAS HELD THAT TH E ASSESSEE HAS ADVANCED THE SAID AMOUNT ON VARIOUS DATES FOR DIFFERENT PERIOD A S PER THE DETAILS MENTIONED IN THE REASONS FOR REOPENING OF THE CASE, ACCORDING LY, CONSIDERING THE PERIOD UNDER CONSIDERATION AS WELL AS AMOUNT ADVANCED @1% PER MONTH, ADDITION TOWARDS INTEREST OF RS. 90,58,625/- WAS ALSO MADE I N THE HANDS OF THE ASSESSEE. THE ASSESSMENT WAS ACCORDINGLY COMPLETED U/S 147 READ WITH SECTION 143(3) OF THE ACT AT THE TOTAL INCOME OF RS . 27,01,45,250/- AS AGAINST THE RETURNED INCOME OF RS. 1,10,86,623/- BY MAKING ADDITION OF RS 25,90,58,625/-. 13. BEING AGGRIEVED, THE ASSESSEE CHALLENGED THE OR DER AND FINDINGS OF THE ASSESSING OFFICER BEFORE THE LD CIT(A) RAISING VARI OUS GROUNDS OF APPEAL CHALLENGING THE JURISDICTION AND LEGALITY OF THE OR DER SO PASSED BY THE ASSESSING OFFICER AS WELL AS MERITS OF THE CASE. THE LD. CIT (A) WHILE DISPOSING OFF THE ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 9 ASSESSEES GROUNDS CHALLENGING THE REOPENING THE AS SESSMENT U/S 147 OF THE ACT STATED THAT THE ASSESSING OFFICER HAS RIGHTLY A SSUMED JURISDICTION U/S 147 OF THE ACT FOR THE REASON THAT THE INFORMATION ALONG W ITH DOCUMENTS COLLECTED DURING SEARCH ON SH. RAMESH MANIHAR COULD EASILY RE SULT INTO ASSESSING OFFICER FORMING A BELIEF OF ESCAPEMENT OF INCOME ON THE PAR T OF THE ASSESSEE. THE LD. CIT(A) ALSO DISMISSED THE GROUND TAKEN ON BEHALF OF THE ASSESSEE RELATING TO ISSUANCE OF NOTICE U/S 148 WITHOUT OBTAINING PROPER SANCTION U/S 151 STATING THAT A/R OF THE ASSESSEE HAS NOT BEEN ABLE TO PUT F ORTH ANY COGENT REASON OR EVIDENCES LEADING UP TO THE CONCLUSION THAT THE APP ROVAL TAKEN BY THE ASSESSING OFFICER U/S 151 OF THE ACT WAS NOT PROPER . THEREFORE, GROUNDS CHALLENGING REOPENING OF THE ASSESSMENT U/S 147 AND ISSUANCE OF NOTICE U/S 148 OF THE ACT WITHOUT SEEKING PROPER SANCTION WERE DISMISSED BY THE LD. CIT(A) AND AGAINST THE SAID FINDINGS, THE ASSESSEE IS IN APPEAL BEFORE US. 14. ON MERITS OF THE ADDITIONS MADE BY THE AO AND G ROUNDS OF APPEAL SO TAKEN BY THE ASSESSEE CHALLENGING SUCH ADDITION, TH E LD. CIT(A) FIRSTLY REFERRED TO THE STATEMENT OF SH. RAMESH CHAND MAHESHWARI REC ORDED DURING THE COURSE OF SEARCH AT HIS PREMISES ON 07.01.2016 AND STATED THAT THOUGH THE ASSESSING OFFICER HAS PRODUCED CERTAIN QUESTIONS AND ANSWERS OF THE SAID STATEMENT IN THE ASSESSMENT ORDER, HOWEVER, NEITHER DURING THE C OURSE OF SEARCH BY THE INVESTIGATION WING NOR DURING ASSESSMENT PROCEEDING S BY THE ASSESSING OFFICER, ANY QUESTION WAS PUT TO SH. MAHESHWARI AS TO WHAT PCK STAND FOR AND AGAINST THE NAME PCK, NO ADDRESS OR TELEPHONE NUMBER IS F OUND TO HAVE BEEN RECORDED. THE LD CIT(A) STATED THAT IN WHAT CIRCUMS TANCES AND ON WHAT BASIS OR EVIDENCE THE NAME PCK IS INFERRED AS TO THE APPEL LANT HEREIN IS NOT FORTHCOMING. THE NAME OF APPELLANT IS APPEARING ONL Y IN THE RECORDS MAINTAINED UNDER THE FILENAME ANKOOT WHICH WAS STATED TO BE FOR THE PURPOSE OF SENDING INVITATION CARD AS PER ANSWER TO QUESTION NO. 31 OF THE ABOVE REFERRED STATEMENT. THE LD CIT(A) FURTHER STATED THAT ON PER USAL OF EXTRACTED STATEMENT IN THE ASSESSMENT ORDER OR IN THE ENTIRE STATEMENT OF SH. RAMESH CHANDRA MAHESHWARI, HE DO NOT FIND ANY ANSWER WHICH SUGGEST ED THE APPELLANT HEREIN IS ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 10 FOUND TO HAVE ADVANCED SUCH LOAN. THE SEIZED MATERI AL ONLY REFERS TO PCK AS HAVING GIVEN ADVANCES. HOWEVER ON EXAMINATION OF EN TIRE MATERIAL, HE IS UNABLE TO RELATE THE MATERIAL TO THE APPELLANT HERE IN. WHEN A PARTICULAR MATERIAL IS FOUND FROM A THIRD-PARTY, BEFORE DRAWING ANY ADV ERSE INFERENCE AGAINST A PERSON OTHER THAN FROM WHOM SUCH MATERIAL IS FOUND, IT IS A NECESSARY CONDITION THAT A SPECIFIC QUESTION NEEDS TO BE PUT TO THE PERSON FROM WHOM SUCH MATERIAL IS FOUND AS TO WHOM AND WHO IT RELATE S TO SUCH OTHER PERSON. STATEMENT DURING THE COURSE OF SEARCH WAS RECORDED U/S 132(4) BY OFFICER OF THE INVESTIGATION WING. IN THE SAID STATEMENT, READ ING IT ENTIRELY, IT IS NOT FORTHCOMING AS TO ANY REFERENCE TO THE APPELLANT HE REIN. EVEN FURTHER STATEMENT OF RAMESH CHAND MAHESHWARI WAS RECORDED B Y THE AO HAVING JURISDICTION OVER HIM UNDER SECTION 131 DATED 8.11. 2017 AND NOT BY THE ASSESSING OFFICER HAVING JURISDICTION OVER THE ASSE SSEE. IN SAID STATEMENT ALSO, THERE IS NO REFERENCE TO PCK BEING CONSIDERED AS PRAKASH CHAND KOTHARI. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AP PELLANT SPECIFICALLY ASKED THE ASSESSING OFFICER TO POINT OUT WHICH PORTION OF THE STATEMENT ON THE BASIS OF WHICH IT IS CONCLUDED AS TO INVOLVEMENT OF THE A PPELLANT IN PROVIDING CASH LOAN. THE ASSESSING OFFICER IS COMPLETELY SILENT ON THE SAME. IF THE ASSESSING OFFICER WANTS TO DRAW ANY ADVERSE INFERENCE AGAINST ANY OTHER PERSON BASED ON SUCH STATEMENT, IT WAS INCUMBENT UPON HIM TO RELATE SUCH STATEMENT TO THE APPELLANT AND ALSO TO PROVIDE AN OPPORTUNITY OF CRO SS EXAMINATION OF SUCH PERSON. 15. THE LD. CIT(A) THEREAFTER REFERRED TO THE DECIS ION OF HONBLE SUPREME COURT IN CASE OF COMMON CAUSE (A REGISTERED SOCIETY ) REPORTED IN 394 ITR 220 WHEREIN THE EARLIER DECISION OF HONBLE SUPREME COU RT IN CASE OF V. C. SHUKLAS CASE HAS BEEN DISCUSSED AT LENGTH AND RELYING ON TH E SAID DECISION, THE LD. CIT(A) STATED THAT THOUGH THESE JUDGMENTS OF THE HO NBLE SUPREME COURT WERE RENDERED IN THE CONTEXT OF CRIMINAL LAW, YET WHAT T HE HONBLE SUPREME COURT COURT HELD THAT MERELY ON THE BASIS OF SUCH UNCORRO BORATED ENTRIES KEPT BY THIRD-PARTY INVESTIGATION CANNOT BE CONDUCTED AND A PPLYING THE PRINCIPLE IN THE ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 11 PRESENT CASE WHICH IS A CIVIL LAW, IT CAN BE SAID T HAT THOUGH COGNIZANCE MAY BE TAKEN IN RESPECT OF ENTRIES BY THIRD-PARTY IN THE A SSESSMENT OF OTHER PERSON SO AS TO INITIATE INQUIRY FOR ASSESSMENT, YET WHEN THE RE IS NO FINDING THAT SUCH ENTRIES ARE IN FACT PERTAINING TO SUCH THIRD PERSON ONLY WHICH SHOULD BE EMANATING FROM THE ENTRIES ITSELF OR FROM THE PERSO N WHO HAS RECORDED SUCH ENTRY, NO COGNIZANCE CAN BE TAKEN SO AS TO FASTEN T AX LIABILITY ON SUCH THIRD PERSON. 16. THE LD. CIT(A) FURTHER REFERRED TO THE OBSERVAT IONS OF THE ASSESSING OFFICER REGARDING APPLICATION FILED BY THE RAMESH M ANIHAR GROUP BEFORE THE SETTLEMENT COMMISSION AND STATED THAT IT IS NOT UND ERSTOOD AS TO HOW AN INCOME ADMITTED BY ONE PERSON WILL BIND OTHER PERSO N IN ABSENCE OF ANY NEXUS BETWEEN THE PERSON ADMITTING AND OTHER PERSON. NEI THER THE INVESTIGATION WING DURING SEARCH PROCEEDINGS NOR ASSESSING OFFICE R DURING THE ASSESSMENT PROCEEDINGS HAVE PUT ANY QUESTION AS TO WHAT PCK STAND FOR NOR IS IT DISCERNIBLE FROM THE SEIZED RECORD ANY REFERENCE TO THE APPELLANT HEREIN AGAINST THE ENTRIES STATED TO BE OF RS. 25 CRORES. FURTHER, REFERRING TO THE DECISIONS OF HONBLE SUPREME COURT IN CASE OF KISHINCHAND CHELLA RAM REPORTED IN 125 ITR 713 AND ANDAMAN TIMBER INDUSTRIES (DATED 2 SEPTEMBER, 2015 IN CIVIL APPEAL NO. 4228 OF 2006) , THE LD CIT(A) STATED THAT IT IS A TRITE LAW WHEN THE STATEMENT OF A PERSON IS TO BE USED IN EVIDENCE AGA INST ANY OTHER PERSON, SUCH OTHER PERSONS SHOULD BE GIVEN AN OPPORTUNITY OF CRO SS EXAMINATION AND IN THE PRESENT CASE., THE ASSESSEE SPECIFICALLY ASKED FOR THE CROSS EXAMINATION WHICH WAS DENIED ARBITRARILY BY THE ASSESSING OFFICER. TH E LD. CIT(A) STATED THAT RELYING UPON THE STATEMENT AND NOT PROVIDING CROSS EXAMINATION TO FIND OUT ANY INVOLVEMENT OF THE PERSON AFFECTED BY SUCH STATEMEN T IS A GROSS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE WHICH RENDERS SUCH RE LIANCE A NULLITY AND IF SUCH STATEMENT IS DISCARDED, THERE REMAIN NO EVIDENCE TO HOLD THAT THE APPELLANT HAS GIVEN ANY SUCH ADVANCE TO THE TUNE OF RS. 25 CRORES . THE LD CIT(A) FINALLY STATED THAT SINCE NO CASE IS MADE OUT TO RELATE THE ENTRIES FOUND DURING SEARCH IN THE CASE OF RAMESH MANIHAR GROUP WITH THE ASSESS EE AND IN ABSENCE OF ANY ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 12 STATEMENT OF THE SEARCHED PERSON TO RELATE THE ENTR IES TO THE APPELLANT, THE ASSESSING OFFICER WAS DIRECTED TO DELETE THE ADDITI ON OF RS. 25 CRORES BEING CONSIDERED AS AN AMOUNT ADVANCED BY WAY OF CASH LOA NS AND NOT RECORDED IN THE BOOKS OF ACCOUNTS AND CONSEQUENT ADDITION TOWAR DS NOTIONAL INTEREST WAS ALSO DIRECTED TO BE DELETED. AGAINST THE SAID FIND INGS OF THE LD CIT(A) DELETING THE ADDITIONS, THE REVENUE IS NOW IN APPEAL BEFORE US. 17. IN THE AFORESAID FACTUAL MATRIX OF THE MATTER, WE FIND THAT BOTH THE PARTIES ARE IN APPEAL BEFORE US AGAINST THE FINDING S AND ORDER OF THE LD CIT(A) AND HAVE RAISED RESPECTIVE GROUNDS OF APPEAL. WE F IRSTLY REFER TO ASSESSEES GROUNDS OF APPEAL CHALLENGING THE REOPENING OF ASSE SSMENT AND ASSUMPTION OF JURISDICTION BY THE ASSESSING OFFICER U/S 147 OF TH E ACT WHICH HAS BEEN UPHELD BY THE LD CIT(A) AND THE CONTENTIONS ADVANCED BY TH E RESPECTIVE PARTIES IN THIS REGARD. 18. THE LD. A/R SUBMITTED THAT ELABORATE SUBMISSION S WERE MADE BEFORE THE LD. CIT(A) IN THIS REGARD, HOWEVER, HE HAS NOT APPR ECIATED THE SAME IN CORRECT PERSPECTIVE AND HENCE THE ASSESSEE WISHES TO REITER ATE THE CONTENTIONS RAISED BEFORE THE LD. CIT(A). IT WAS SUBMITTED THAT THERE IS NO REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT IN THE HANDS OF THE A SSESSEE AS REOPENING WAS DONE ON THE BASIS OF BORROWED SATISFACTION AND SOLE LY ON THE BASIS OF INFORMATION RECEIVED FROM DCIT, CENTRAL CRICLE-03, JAIPUR. IT WAS SUBMITTED THAT ONLY ON THE BASIS OF SO CALLED INFORMATION, TH E ASSESSING OFFICER CONCLUDED THAT PCK WAS NO OTHER PERSON BUT THE ASSESSEE WHO HAS ADVANCED THE MONEY IN CASH THROUGH RAMESH MANIHAR GROUP AND FIGURES ME NTIONED IN THE TABLE WERE SUPPRESSED BY FIVE ZEROES. IT WAS FURTHER SU BMITTED THAT THE IDENTITY OF THE PERSONS ALLEGED TO HAVE RECEIVED LOANS FROM THE ASSESSEE WAS ALSO NOT ESTABLISHED AND PROCEEDINGS, IF ANY, INITIATED AGAI NST SUCH PERSONS FOR ANY CONTRAVENTION OF THE PROVISIONS OF THE INCOME TAX A CT, 1961 WERE NOT DISCLOSED. IT WAS SUBMITTED THAT THE ASSESSING OFFI CER DID NOT CORROBORATE THE INFORMATION RECEIVED FROM THE DCIT, CENTRAL CIRCLE- 03, JAIPUR AND DID NOT ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 13 MITIGATE THE RISK OF ANY LAPSE/DISCONNECT IN THE IN FORMATION SO PROVIDED. IT WAS SUBMITTED THAT THE ASSESSING OFFICER RELIED UPON EX TRACTS OF CERTAIN EXCEL SHEETS, HOWEVER, NO STEPS WERE TAKEN TO MITIGATE AN Y RISK OF THE ELECTRONIC RECORDS HAVING BEEN TEMPERED IN TERMS OF SECTION 65 A, 65B OF EVIDENCE ACT, 1872. IT WAS SUBMITTED THAT EVEN THE SCREENSHOT OF EXCEL SHEET PROVIDED TO THE ASSESSEE, RELIED UPON BY THE ASSESSING OFFICER WAS TAKEN ON 22.10.2018, AFTER RECORDING THE REASONS FOR REOPENING THE CASE. IT WA S ACCORDINGLY SUBMITTED THAT THE AO REOPENED THE CASE OF THE ASSESSEE ON ACCOUNT OF BORROWED SATISFACTION AND WITHOUT ANY TANGIBLE MATERIAL IN HIS POSSESSION BEFORE RECORDING THE REASONS FOR REOPENING THE CASE. 19. IN SUPPORT OF HIS CONTENTIONS, THE LD A/R HAS P LACED RELIANCE ON THE DECISION OF HONBLE SUPREME COURT IN CASE OF MANZIL DINESH KUMAR SHAH [2019] 101 TAXMANN.COM 259 (SC), HONBLE RAJASTHAN HIGH CO URT DECISION IN CASE OF SANDEEP STOCKS PVT. LTD. (CIVIL WRIT PETITION NO. 16705/2018), AND THE DECISIONS OF HONBLE DELHI HIGH COURT IN CASE OF CI T VS. SFIL STOCK BROKING LTD [2010] 325 ITR 285 (DEL), CIT VS. INSECTICIDES (IND IA) LTD. [2013] 357 ITR 330 (DEL), KROWN AGRO FOODS (P.) LTD VS. ACIT [2015] 37 5 ITR 460 (DEL), PR. CIT VS. RMG POLYVINYL (I) B LTD [2017] 396 ITR 5 (DEL), PR. CIT VS. MEENAKSHI OVERSEAS PVT. LTD. [2017] 395 ITR 677 (DEL) AND PR. CIT VS. G & G PHARMA LTD. (2016) 384 ITR 147 (DEL). FURTHER, RELIANCE WAS PL ACED ON THE CO-ORDINATE BENCHES DECISIONS IN CASE OF DEEPRAJ HOSPITAL (P) L TD. VS. ITO (2018) 65 ITR (TRIB.) 663 (AGRA), UNIQUE METAL INDS. VS. ITO (ITA NO. 1372/DEL/2015 DT. 28/10/2015), AND ACIT VS. DEVESH KUMAR (ITA NO. 2068/DEL/2010). 20. IT WAS FURTHER SUBMITTED BY THE LD A/R THAT THE ENTIRE RE-ASSESSMENT PROCEEDINGS WERE BASED ON THE INFORMATION RECEIVED FROM DCIT, CENTRAL CIRCLE, 3 DURING THE COURSE OF SEARCH U/S 132 AND ASSESSING OFFICER SHOULD HAVE TAKEN RECOURSE TO SECTION 153C AND NOT SECTION 147, FOR C ARRYING OUT IMPUGNED RE- ASSESSMENT PROCEEDINGS IN THE CASE OF THE ASSESSEE. IN SUPPORT, THE RELIANCE WAS PLACED ON THE CO-ORDINATE BENCHES DECISIONS IN CASE OF SHRI NAVRATTAN ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 14 KOTHARI (ITA NO. 425/JP/2017), ITO VS. ARUN KUMAR KAPOOR [2011] 140 TTJ 249 (ASR), G. KOTESWARA RAO [2015] 64 TAXMANN.COM 1 59 (VISAKHAPATNAM- TRIB) AND RAJAT SHUBRA CHATTERJI VS. ACIT (ITA NO. 2430/DEL/2015). IT WAS SUBMITTED THAT LD. CIT(A) WITHOUT ANY COGENT BASIS, DISMISSED THE AFORESAID CONTENTIONS SO RAISED BY THE ASSESSEE. 21. IT WAS FURTHER SUBMITTED THAT THE ORIGINAL ASSE SSMENT WAS COMPLETED PURSUANT TO SEARCH IN CASE OF KGK GROUP TO WHICH AS SESSEE BELONGS. DURING THE COURSE OF SEARCH, ONLY EXCESS JEWELLERY AND STOCK W AS FOUND WHICH WAS SURRENDERED. NO UNACCOUNTED CASH WAS FOUND. THE ALL EGED INCRIMINATING MATERIAL RELIED UPON BY AO IS FOUND FROM THE PREMIS ES OF A THIRD PARTY AND NOT THAT OF THE ASSESSEE. HENCE IT CANNOT BE SAID THAT THE ASSESSEE HAD NOT MADE TRUE AND FULL DISCLOSURES DURING THE COURSE OF ORIG INAL ASSESSMENT PROCEEDINGS. THUS, AS PER THE FIRST PROVISO TO SECTION 147 AS WE LL, REOPENING IS BAD IN LAW. IT WAS FURTHER SUBMITTED THAT AS THOROUGH SCRUTINY WAS DONE IN THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS PURSUANT TO SEARCH AND MATERIALS SEIZED DURING SEARCH, PRESENT PROCEEDINGS ARE NOTHING BUT A CLEAR CASE OF CHANGE OF OPINION AND IN SUPPORT, RELIANCE WAS PLACED ON THE HONBLE SUPREME COURT DECISION IN CASE OF CIT VS. KELVINATOR OF INDIA LTD. 320 ITR 56 1 (SC). 22. IT WAS FURTHER SUBMITTED THAT THE ASSESSING OFF ICER VIDE LETTER DATED 19.07.2018 HAS NOT SUPPLIED COPY OF REASON ACTUALLY RECORDED BY ASSESSING OFFICER. FROM THE EXTRACT OF THE REASONS SUPPLIED, IT IS NOT POSSIBLE TO ASCERTAIN THE DATE ON WHICH REASONS WERE ACTUALLY RECORDED. F URTHER IT IS NOT CLEAR WHETHER COMPLIANCE OF FIRST PROVISO TO SECTION 147 AND OTHER ASPECTS OF SECTION 147 WERE RECORDED IN THE REASONS ACTUALLY RECORDED BY ASSESSING OFFICER. IT IS ALSO NOT CLEAR WHETHER THE REASONS ACTUALLY RECORDE D DEMONSTRATED INDEPENDENT APPLICATION OF MIND BY AO TO THE INFORM ATION RECEIVED BY HIM. HENCE, GREAT PREJUDICE IS CAUSED TO THE ASSESSEE ON ACCOUNT OF NON-RECEIPT OF ACTUAL RECORDED REASONS AND IN SUPPORT, RELIANCE WA S PLACED ON CO-ORDINATE ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 15 BENCHES DECISION IN CASE OF TATA INTERNATIONAL LTD. VS. DCIT [2012] 52 SOT 465 (MUM.) (TRIB). 23. IN HIS SUBMISSIONS, THE LD PCIT/D/R SUBMITTED T HAT FIRSTLY, THE CONTENTION OF THE LD A/R THAT THE ASSESSING OFFICER HAS NOT SU PPLIED COPY OF REASON ACTUALLY RECORDED BY ASSESSING OFFICER IS FACTUALLY NOT CORR ECT AND OUR REFERENCE WAS DRAWN TO THE APB PAGES 23-27 WHEREIN THE ASSESSING OFFICER LETTER DATED 19.07.2018 ISSUED TO THE ASSESSEE IS ENCLOSED AND I T WAS SUBMITTED THAT THE SAID LETTER CONTAINS THE EXACT CONTENTS OF THE REAS ONS AS RECORDED BY THE AO PRIOR TO ISSUANCE OF NOTICE U/S 148 OF THE ACT. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE VIDE ITS LETTER DATED 13.08.2018 HAS ACKNO WLEDGED THE RECEIPT OF THE REASONS SO RECORDED BY THE AO AND BASIS THE SAID RE ASONS, HAD RAISED OBJECTIONS WHICH WERE DISPOSED OFF BY THE ASSESSING OFFICER BY WAY OF SPEAKING ORDER. IT WAS SUBMITTED THAT THE ASSESSEE CANNOT N OW BE ALLOWED TO RAISE ANY FRESH OBJECTIONS IN THIS REGARD WHEN THE REASONS AS SO RECORDED WERE SUPPLIED TO THE ASSESSEE AND ON RECEIPT THEREOF, THE ASSESSE E HAS FILED HIS OBJECTIONS AS WELL. IT WAS SUBMITTED THAT THE REASONS WERE DULY RECORDED BY THE ASSESSING OFFICER PRIOR TO ISSUANCE OF NOTICE U/S 148 AND CON TAINS DETAIL REASONS FOR FIRMING THE BELIEF THAT INCOME HAS ESCAPED ASSESSME NT AND ALSO IN TERMS OF THE COMPLIANCE OF THE PROVISO TO SECTION 147 IN TERMS O F FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE TRULY AND CORRECTLY ALL MATERI AL FACTS NECESSARY FOR THE ASSESSMENT. 24. IT WAS FURTHER SUBMITTED BY LD PCIT/D/R THAT TH E REASONS SO RECORDED WERE BASED ON INFORMATION RECEIVED FROM THE DCIT CE NTRAL CIRCLE-3, JAIPUR AND DETAILED ENQUIRIES WERE CONDUCTED BY THE INVESTIGAT ION WING AS WELL AS EXAMINATION OF THE ASSESSMENT RECORDS WAS UNDERTAKE N BY THE ASSESSING OFFICER AND WHICH SHOWS CLEARLY DUE AND INDEPENDENT APPLICATION OF MIND ON PART OF THE ASSESSING OFFICER BASED ON APPRECIATION OF MATERIAL ON RECORD THAT THE INCOME IN THE HANDS OF THE ASSESSEE HAS ESCAPED ASSESSMENT. IT WAS SUBMITTED THAT WHERE THE ASSESSING OFFICER BASIS DE TAILED INFORMATION AND ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 16 ENQUIRIES CONDUCTED BY THE INVESTIGATION WING WHICH FORMS A TANGIBLE MATERIAL FORMS A REASONABLE BELIEF THAT THE INCOME IN THE HA NDS OF THE ASSESSEE HAS ESCAPED ASSESSMENT, THERE IS NO INFIRMITY IN THE AC TION OF THE ASSESSING OFFICER IN ASSUMPING JURISDICTION U/S 147 OF THE ACT BY REC ORDING THE REASONS AND ISSUANCE OF NOTICE U/S 148 OF THE ACT. 25. IN SUPPORT, RELIANCE WAS PLACED BY THE LD PCIT/ DR ON THE DECISION OF HONBLE RAJASTHAN HIGH COURT IN CASE OF ANKIT AGROC HEM (P.) LTD VS. JOINT COMMISSIONER OF INCOME-TAX, RANGE-1, BIKANER [2018] 89 TAXMANN.COM 45 (RAJ), THE DECISIONS OF THE HONBLE GUJARAT HIGH CO URT IN CASE OF PEASS INDUSTRIAL ENGINEERS (P.) LTD. VS. DEPUTY COMMISSIO NER OF INCOME-TAX [2016] 72 TAXMANN.COM 302 (GUJ), HVK INTERNATIONAL (P) LTD . VS. DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-3 [2016] 72 TAXMANN.COM 208 (GUJ), AND ANKIT FINANCIAL SERVICES LTD. VS. DEPUTY COMMISSIONER OF INCOME- TAX, CIRCLE 1(1)(2) [2017] 78 TAXMANN.COM 58 (GUJ), THE DECISION OF HONBLE MUMBAI HIGH COURT IN CASE OF BRIGHT STAR SYNTEX (P. ) LTD. VS. INCOME-TAX OFFICER 9(2)(1) [2016] 71 TAXMANN.COM 64 (BOM), THE DECISION OF THE HONBLE DELHI HIGH COURT IN CASE OF PRINCIPAL COMMISSIONER OF INCOME-TAX-7 VS. PARAMOUNT COMMUNICATION (P.) LTD [2017] 79 TAXMANN. COM 409 (DEL). 26. IT WAS FURTHER SUBMITTED BY LD PCIT/D/R THAT T HERE IS NO DOUBT AND ITS A FACTUAL POSITION AS EMANATING FROM THE ASSESSMENT R ECORDS THAT THE REASSESSMENT PROCEEDINGS WERE INITIATED BASED ON TH E INFORMATION/DOCUMENTATION RECEIVED FROM DCIT, CENTR AL CIRCLE, 3 WHICH WERE COLLECTED/SEIZED DURING THE COURSE OF SEARCH U/S 13 2 CONDUCTED IN THE CASE OF RAMESH MANIAR GROUP, HOWEVER, IT IS NOT IN EVERY CA SE THAT THE ASSESSING OFFICER CAN TAKE RECOURSE TO SECTION 153C FOR CARRY ING OUT THE REASSESSMENT PROCEEDINGS AS THERE ARE CONDITIONS SPECIFIED IN SE CTION 153C WHICH NEEDS TO BE FULFILLED AND ONLY IN SUCH CASES WHERE THE CONDITIO NS SO SPECIFIED ARE FULFILLED, THE ASSESSING OFFICER CAN TAKE RECOURSE TO SECTION 153C OF THE ACT. IT WAS SUBMITTED THAT IN THE INSTANT CASE, THE CONDITIONS SPECIFIED IN SECTION 153C ARE ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 17 NOT FULFILLED AS NO SATISFACTION HAS BEEN RECORDED BY THE ASSESSING OFFICER OF THE SEARCHED PERSON AND NO SEIZED MATERIAL HAS BEEN HAN DED OVER TO THE ASSESSING OFFICER OF THE ASSESSEE AND HENCE, BASIS RECEIPT OF INFORMATION/DOCUMENTATION AND SUBSEQUENT ENQUIRIES AND INVESTIGATION CONDUCTE D DURING THE COURSE OF SEARCH, THE ASSESSING OFFICER RECORDED THE REASONS FOR ESCAPEMENT OF INCOME AND INITIATED THE PROCEEDINGS U/S 147 BY ISSUANCE O F NOTICE U/S 148 OF THE ACT. IT WAS ACCORDINGLY SUBMITTED THAT THERE IS NO INFIR MITY IN ACTION OF THE ASSESSING OFFICER IN ASSUMPTION OF JURISDICTION U/S 147 INSTE AD OF SECTION 153C OF THE ACT. IN SUPPORT, RELIANCE WAS PLACED ON THE COORDINATE B ENCHES DECISION IN CASE OF SHAILESH S. PATEL VS ITO WARD-5, PALANPUR [2018] 97 TAXMANN.COM 570 (AHD) AND DECISION OF THE HONBLE MADRAS HIGH COURT IN CA SE OF KARTI P. CHIDAMBARAN VS PRINCIPAL DIT(INVESTIGATION), UNIT 3(2), CHENNAI [2021] 128 TAXMANN.COM 116 (MAD). 27. IT WAS FURTHER SUBMITTED THAT THE SUFFICIENCY AND ADEQUACY OF MATERIAL MAY NOT BE REQUIRED TO BE LOOKED INTO AT THE TIME OF RE CORDING THE REASONS AND WHAT IS RELEVANT IS WHETHER THERE WAS RELEVANT MATERIAL ON WHICH A REASONABLE PERSON COULD HAVE FORMED A REQUISITE BELIEF THAT TH E INCOME HAS ESCAPED ASSESSMENT. IT WAS SUBMITTED THAT IN THE INSTANT C ASE, THERE WAS RELEVANT MATERIAL IN POSSESSION OF THE AO FOR HIM TO PROCEED WITH RECORDING OF REASONS THAT INCOME HAS ESCAPED ASSESSMENT AND ASSUMPTION O F JURISDICTION U/S 147 OF THE ACT. IN SUPPORT, RELIANCE WAS PLACED ON THE HO NBLE SUPREME COURT DECISIONS IN CASE OF ASSISTANT COMMISSIONER OF INCO ME-TAX VS. RAJESH JHAVERI STOCK BROKERS (P.) LTD. [2007] 161 TAXMAN 316 (SC) , YOGENDRA KUMAR GUPTA VS. INCOME-TAX OFFICER [2014] 51 TAXMANN.COM 383 (S C), AND RAYMOND WOOLEN MILLS LTD. VS. INCOME-TAX OFFICER [1999] 236 ITR 34 (SC). 28. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURUSE D THE MATERIAL AVAILABLE ON RECORD. BOTH THE PARTIES HAVE RELIED UPON A NUM BER OF DECISIONS RENDERED BY THE HONBLE SUPREME COURT AND BY VARIOUS HONBLE HIGH COURTS REGARDING CONDITIONS PRECEDENT FOR ASSUMPTION OF JURISDICTION BY THE ASSESSING OFFICER U/S ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 18 147 OF THE ACT. WE HAVE GONE THROUGH THESE DECISIO NS AS WELL AS OTHER AUTHORITIES ON THE SUBJECT, AND WE FIND THAT IN THE SE DECISIONS, THE COURTS HAVE LAID DOWN CERTAIN CARDINAL TESTS WHICH NEED TO BE F ULFILLED FOR ASSUMPTION OF JURISDICTION U/S 147 AND HAVE REITERATED THE SAME F ROM TIME TO TIME CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE PARTICULAR CASE. THESE CARDINAL TESTS PROVIDE THAT BEFORE ASSUMING JURISDICTION U/S 147, THE ASSE SSING OFFICER MUST FORM A PRIMA FACIE OPINION ON THE BASIS OF MATERIAL/INFORM ATION IN HIS POSSESSION THAT THERE IS AN ESCAPEMENT OF INCOME, THE OPINION FORME D MAY BE SUBJECTIVE BUT THE REASONS RECORDED OR THE INFORMATION AVAILABLE O N RECORD MUST SHOW THAT THE OPINION IS NOT A MERE SUSPICION, THE DOCUMENTS/MATE RIAL/INFORMATION AVAILABLE ON RECORD MUST BE TANGIBLE, SPECIFIC AND NOT VAGUE AND MUST BE EVIDENT FROM READING OF THE REASONS SHOWING A NEXUS/LINKAGE WITH THE FORMATION OF BELIEF AND THE FACT THAT THEY ARE GERMANE AND RELEVANT TO THE SUBJECTIVE OPINION FORMED BY THE ASSESSING OFFICER REGARDING ESCAPEMEN T OF INCOME IN THE HANDS OF THE ASSESSEE. THE REASONS ARE REQUIRED TO BE REA D AS THEY WERE RECORDED BY THE ASSESSING OFFICER. NO SUBSTITUTION OR DELETION IS PERMISSIBLE. NO ADDITIONS CAN BE MADE TO THOSE REASONS. NO INFERENCE CAN BE A LLOWED TO BE DRAWN ON THE BASIS OF REASONS NOT RECORDED. IT IS FOR THE ASSESS ING OFFICER TO DISCLOSE AND OPEN HIS MIND THROUGH THE REASONS RECORDED BY HIM A ND HE HAS TO SPEAK THROUGH THE REASONS AND THE REASONS SO RECORDED SHO ULD REFLECT HIS INDEPENDENT APPLICATION OF MIND AND NOT THAT OF ANY THIRD PARTY/INVESTIGATING AGENCY/AUTHORITY. IN CASES WHERE THE FIRST PROVISO APPLIES, THERE IS AN ADDITIONAL REQUIREMENT THAT THERE SHOULD BE FAILURE OR OMISSION ON THE PART OF THE ASSESSEE IN DISCLOSING FULL AND TRUE MATERIAL F ACTS AND THE ASSESSING OFFICER SHOULD RECORD THE EXACT AND PRECISE NATURE OF FAILU RE ON PART OF THE ASSESSEE AND ITS LINKAGE THEREOF WITH THE ESCAPEMENT OF INCO ME. 29. IN THE INSTANT CASE, THE ASSESSEE HAS CHALLENGE D THE ASSUMPTION OF JURISDICTION BY THE ASSESSING OFFICER U/S 147 OF TH E ACT AND IT HAS BEEN CONTENDED THAT THE REOPENING HAS BEEN DONE SOLELY O N THE BASIS OF INFORMATION RECEIVED FROM DCIT, CENTRAL CIRCLE-03, JAIPUR AND T HERE IS NO INDEPENDENT ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 19 APPLICATION OF MIND BY THE ASSESSING OFFICER AND IT IS THEREFORE A CASE OF BORROWED SATISFACTION AND NOT HIS OWN SATISFACTION WHICH HAS BEEN RECORDED BY THE ASSESSING OFFICER AFTER DUE APPLICATION OF MIND . IT WAS FURTHER SUBMITTED THAT THERE IS NO TANGIBLE MATERIAL IN POSSESSION OF THE ASSESSING OFFICER FOR ARRIVING AT THE FINDING THAT THE INCOME HAS ESCAPED ASSESSMENT IN THE HANDS OF THE ASSESSEE AND THEREFORE, NO NEXUS HAS BEEN ESTAB LISHED BETWEEN THE MATERIAL AND FORMATION OF BELIEF THAT THE INCOME HA S ESCAPED ASSESSMENT IN THE HANDS OF THE ASSESSEE. IT HAS BEEN FURTHER CONTENDE D THAT GIVEN THE FACT THAT THE ENTIRE REASSESSMENT PROCEEDINGS HAVE BEEN BASED ON THE INFORMATION RECEIVED FROM DCIT, CENTRAL CIRCLE-03, JAIPUR DURIN G THE COURSE OF SEARCH U/S 132, THE ASSESSING OFFICER SHOULD HAVE TAKEN RECOUR SE TO SECTION 153C AND NOT SECTION 147 FOR CARRYING OUT THE PRESENT REASSESSME NT PROCEEDINGS. 30. IN THIS REGARD, WE REFER TO THE REASONS RECORDE D BY THE ASSESSING OFFICER BEFORE ISSUANCE OF NOTICE U/S 148 OF THE ACT. IN T HE REASONS SO RECORDED, THE ASSESSING OFFICER REFERS TO THE INFORMATION RECEIVE D FROM THE OFFICE OF DCIT, CENTRAL CIRCLE-03, JAIPUR PURSUANT TO SEARCH AND SE IZURE ACTION CARRIED OUT IN CASE OF RAMESH MANIHAR GROUP U/S 132 OF THE ACT AND THE SAME READ AS UNDER:- 2. BRIEF DETAILS OF INFORMATION COLLECTED/RECEIVED BY THE A.O: INFORMATION HAS BEEN RECEIVED FROM THE OFFICE OF DC IT, CENTRAL CIRCLE-3, JAIPUR THAT SEARCH & SEIZURE ACTION U/S 1 32 OF THE IT ACT, 1961 WAS CARRIED OUT IN THE CASE OF RAMESH MANIHAR GROUP ON 07.01.2016. THE GROUP HAS BEEN INDULGING IN CASH LO AN FINANCING ON A LARGE SCALE. DURING THE COURSE OF SEARCH, VOLU MINOUS DATA COMPRISING OF EXCEL SHEETS IN THE 18 PEN-DRIVES SEI ZED DURING THE COURSE OF SEARCH ACTION AT THE MAIN OFFICE OF THE R AMESH MANIHAR GROUP AT 303. RATNA SAGAR, MSB KAA RASTA, JOHARI BA ZAR, JAIPUR, WHICH CONSISTED DETAILS OF CASH LOANS FINANCED BY T HE RAMESH MANIHAR GROUP WAS FOUND. IT WAS FOUND THAT THE PERS ONS OF THE ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 20 RAMESH MANIHAR GROUP, BEING SHRI RAMESH CHAND MAHES HWARI AND SHRI MANMOHAN KRISHAN BAGLA WERE ENGAGED AS FINANCE BROKERS FOR ARRANGING CASH LOANS BETWEEN VARIOUS BORROWERS AND LENDERS WHICH WERE NOT REFLECTED IN THE BOOKS OF ACCOUNTS AND THA T THE BROKERAGE RECEIVED FOR SUCH UNRECORDED CASH TRANSACTIONS WAS ALSO NOT OFFERED FOR TAXATION BY THE GROUP. IT HAS ALSO BEEN FOUND THAT THE FIGURES IN THE AFORESAID DATA WAS SUPPRESSED BY FIV E ZEROES, AS IS EVIDENT FROM THE CORROBORATION OF ENTRIES FOUND IN THE EXCEL SHEETS WITH THE DOCUMENTS SEIZED. AS PER INFORMATION, FOLL OWING INFORMATION WAS NOTICED REGARDING SHRI PRAKASH CHAN D KOTHARI, WHO PAID CASH LOAN TO VARIOUS PERSONS THROUGH RAMESH MA NIHAR GROUP DURING THE YEAR UNDER CONSIDERATION: DATE T @ AT FROM TO 27.07.2010 6 9.00 200 PCK V. CHORDIA 02.08.2010 12 9.00 400 PCK POONGLIAJI 07.01.2011 6 10.00 100 PCK A . KALA 11.01.2011 6 8.50 500 PCK POONGLIAJI 12.01.2011 6 9.00 200 PCK NKB 13.01.2011 6 10.00 100 PCK NIRAJ 15.01.2011 6 8.50 500 PCK RCB 15.01.2011 6 9.00 100 PCK RMR 21.01.2011 6 10.00 100 PCK SNR 27.01.2011 6 9.00 100 PCK V. CHORDIA 03.02.2011 6 10.00 100 PCK S. SINGHAL 16.02.2011 6 10.00 100 PCK RSD IN THIS INFORMATION, IT IS FOUND THAT THE ASSESSEE HAS PAID AMOUNT OF RS.25,00,00,000/- ON ACCOUNT OF CASH LOAN AND IN TEREST APPLICABLE ACCORDINGLY. ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 21 31. IN THE REASONS SO RECORDED, THE ASSESSING OFFIC ER HAS FURTHER STATED THAT FROM THE PERUSAL OF INFORMATION, IT IS FOUND THAT T HE ASSESSEE HAS PAID CASH LOAN OF RS. 25 CRORES OUT OF HIS INCOME FROM UNDISC LOSED SOURCES IN A.Y 2012- 13 AND RECEIVED INTEREST ACCORDINGLY. THE ASSESSING OFFICER HAS FURTHER STATED THAT THOUGH THE ASSESSEE HAS FILED A COPY OF ANNUAL REPORT, AUDITED PROFIT & LOSS ACCOUNT AND BALANCE-SHEET ALONG WITH RETURN OF INCO ME IN THE ORIGINAL ASSESSMENT PROCEEDINGS WHEREIN VARIOUS INFORMATION/ MATERIAL WERE DISCLOSED, HOWEVER, REQUISITE FULL AND TRUE DISCLOSURE OF ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT HAS NOT BEEN MADE AS THE ASSESSEE HAS NO T FURNISHED THE COPY OF CASH BOOK FOR THE YEAR UNDER CONSIDERATION AND SOUR CE OF ADVANCE PAYMENT OF LOAN IN CASH AND WHICH IS NOT SHOWN IN THE LOANS AN D ADVANCES GIVEN BY THE ASSESSEE IN HIS BALANCE-SHEET ATTRACTING EXPLANATIO N 1 OF SECTION 147 OF THE ACT. IT WAS HELD BY THE ASSESSING OFFICER THAT THE DETAI LED ENQUIRIES CONDUCTED BY THE INVESTIGATION WING AND MATERIAL AVAILABLE ON TH E ASSESSMENT RECORD IS SELF SUFFICIENT AND ACCORDINGLY, HE FORMED REASON TO BEL IEVE THAT THE ASSESSEE HAS PAID THE LOAN AMOUNT OF RS. 25 CRORES OUT OF HIS IN COME FROM UNDISCLOSED SOURCES AND HAS FAILED TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR DETERMINATION OF INCOME AND THEREFORE, HE HAS REASO N TO BELIEVE THAT INCOME OF RS. 25 CRORES AND INTEREST RECEIVED THEREON HAS ESC APED ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF THE ACT. 32. IT IS THEREFORE MANIFEST FROM THE REASONS SO RE CORDED BY THE ASSESSING OFFICER THAT HE HAS BASICALLY RELIED UPON THE INFOR MATION RECEIVED FROM THE DCIT CENTRAL CIRCLE -3, JAIPUR AND ENQUIRIES CONDUCTED B Y THE INVESTIGATION WING. FURTHER, GIVEN THAT THE ORIGINAL ASSESSMENT HAS BEE N COMPLETED U/S 143(3) AND MORE THAN FOUR YEARS HAVE ELAPSED FROM THE END OF T HE IMPUGNED ASSESSMENT AND PROVISO TO SECTION 147 APPLIES, WITH A VIEW TO SATISFY THE ADDITIONAL CONDITION THAT THERE SHOULD BE FAILURE OR OMISSION ON THE PART OF THE ASSESSEE IN DISCLOSING FULL AND TRUE MATERIAL FACTS, HE HAS CON SIDERED THE ASSESSEES ASSESSMENT RECORDS AND THEREAFTER, HAS CONCLUDED TH AT THERE WAS NO NECESSITY ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 22 TO MAKE FURTHER INQUIRIES AS THE INFORMATION AVAILA BLE ON RECORD IS SELF- SUFFICIENT. 33. THE QUESTION THAT ARISES FOR CONSIDERATION IS W HETHER THE INFORMATION SO RECEIVED FROM THE DCIT CENTRAL CIRCLE -3, JAIPUR CO NSTITUTE TANGIBLE MATERIAL IN POSSESSION OF THE ASSESSING OFFICER AND ENQUIRIES S O CONDUCTED BY THE INVESTIGATION WING, AND ADMITTEDLY NOT CONDUCTED BY THE ASSESSING OFFICER HIMSELF AS A SEQUEL TO THE INFORMATION SO RECEIVED, PROVIDES THE NECESSARY NEXUS BETWEEN THE TANGIBLE MATERIAL AND FORMATION O F REASONABLE BELIEF ON PART OF THE ASSESSING OFFICER THAT INCOME IN THE HANDS O F THE ASSESSEE HAS ESCAPED ASSESSMENT. 34. AS WE HAVE NOTICED ABOVE, THE INFORMATION SO RE CEIVED BY THE ASSESSING OFFICER FROM DCIT CENTRAL CIRCLE -3, JAIPUR TALKS I N GENERAL ABOUT THE SEARCH AND SEIZURE ACTION U/S 132 CARRIED OUT IN CASE OF RAMES H MANIHAR GROUP AND DURING THE COURSE OF SEARCH, VOLUMINOUS DATA COMPRISING OF EXCEL SHEETS IN PEN DRIVES WERE SEIZED FROM THE OFFICE OF THIS SAID GROUP. IT HAS BEEN FURTHER STATED THAT THE SAID GROUP WAS INDULGING IN CASH LOAN FINANCING ON A LARGE SCALE AND WERE ENGAGED AS FINANCE BROKERS FOR ARRANGING CASH LOANS BETWEEN VARIOUS BORROWERS AND LENDERS AND THE DATA SO SEIZED RELATE TO SUCH UNRECORDED CASH TRANSACTIONS. THEREAFTER, TALKING SPECIFICALLY ABO UT THE ASSESSEE, IT HAS BEEN STATED IN THE SAID INFORMATION THAT CERTAIN TRANSAC TIONS HAVE BEEN NOTICED REGARDING THE ASSESSEE, SHRI PRAKASH CHAND KOTHARI WHEREIN THE ASSESSEE HAS PAID CASH LOANS OF RS 25 CRORES TO VARIOUS PERSONS THROUGH THE SAID GROUP AND HAS EARNED INTEREST ON THE SAID AMOUNT. IF WE LOOK AT THE DATA SO PROVIDED IN FORM OF A TABLE IN THE INFORMATION SO RECEIVED FROM DCIT CENTRAL CIRCLE-3 JAIPUR AND AS RECORDED IN THE REASONS BY THE ASSESSING OFF ICER, WE FIND THAT IT LIST DOWN CERTAIN TRANSACTIONS ON VARIOUS DATES AND HAS VARIOUS COLUMNS WITH HEADING T, @, AT AND CERTAIN FIGURES HAVE BEE N STATED UNDER EACH HEADING CORRESPONDING TO VARIOUS DATES, AND THEREAF TER, HAS TWO COLUMNS WITH HEADING FROM AND TO WHEREIN UNDER COLUMN FROM , PCK HAS BEEN STATED ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 23 AND UNDER COLUMN TO, CERTAIN NAMES AGAIN IN ABBRE VIATED FORM HAS BEEN STATED. ON PERUSAL OF THE SAID DATA, IT IS NOT DISC ERNIBLE AS TO WHAT KIND AND NATURE OF TRANSACTIONS THE SAID DATA DEPICTS AS EVE RYTHING IS IN ABBREVIATED FORM, WHAT T STAND FOR, WHAT @ STAND FOR, WHAT AT STAND FOR, WHAT PCK STAND FOR, WHAT IS THE LINKAGE OF PCK WITH OTHER PERSONS WHOSE NAME ARE ALSO WRITTEN IN ABBREVIATED FORM, AND HOW THIS DATA AND SO CALLED TRANSACTIONS ARE RELATED TO THE ASSESSEE AND HOW THE FIGURES SO DEPI CTED REPRESENT AND ADD UP TO A FIGURE OF RS 25 CRORES IN CASH ARE AGAIN NOT D ISCERNABLE EVEN FROM CLOSE READING OF THE SAID DATA. THEREFORE, IN OUR CONSIDE RED VIEW, THE SAID DATA PER SE CANNOT CONSTITUTE TANGIBLE MATERIAL IN POSSESSION OF THE ASSESSING OFFICER UNLESS THE SAME IS ANALYSED AND EXAMINED THOROUGHLY AND NECESSARY LINKAGE IS ESTABLISHED WITH THE ASSESSEE. IN THIS REGARD, USE FUL REFERENCE CAN BE DRAWN TO THE DECISION OF THE HONBLE SUPREME COURT IN CASE OF ITO VS LAKHMANI MEWAL DAS REPORTED IN 103 ITR 437 WHEREIN THE HONBLE SUPREM E COURT HAS LAID DOWN THE FOLLOWING LEGAL PROPOSITION (PG 448): AS STATED EARLIER, THE REASONS FOR THE FORMATION OF THE BELIEF MUST HAVE A RATIONAL CONNECTION WITH OR RELEVANT BEARING ON T HE FORMATION OF THE BELIEF. RATIONAL CONNECTION POSTULATES THAT THERE M UST BE A DIRECT NEXUS OR LIVE LINK BETWEEN THE MATERIAL COMING TO THE NOT ICE OF THE INCOME-TAX OFFICER AND THE FORMATION OF HIS BELIEF THAT THERE HAS BEEN ESCAPEMENT OF THE INCOME OF THE ASSESSEE FROM ASSESSMENT IN THE P ARTICULAR YEAR BECAUSE OF HIS FAILURE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS. IT IS NO DOUBT TRUE THAT THE COURT CANNOT GO INTO THE SUFFIC IENCY OR ADEQUACY OF THE MATERIAL AND SUBSTITUTE ITS OWN OPINION FOR THA T OF THE INCOME-TAX OFFICER ON THE POINT AS TO WHETHER ACTION SHOULD BE INITIATED FOR REOPENING ASSESSMENT. AT THE SAME TIME WE HAVE TO B EAR IN MIND THAT IT IS NOT ANY AND EVERY MATERIAL, HOWSOEVER VAGUE AND INDEFINITE OR DISTANT, REMOTE AND FARFETCHED, WHICH WOULD WARRANT THE FORM ATION OF THE BELIEF RELATING TO ESCAPEMENT OF THE INCOME OF THE ASSESSE E FROM ASSESSMENT. THE FACT THAT THE WORDS DEFINITE INFORMATION WHIC H WERE THERE IN SECTION ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 24 34 OF THE ACT OF 1922, AT ONE TIME BEFORE ITS AMEND MENT IN 1948, ARE NOT THERE IN SECTION 147 OF THE ACT OF 1961, WOULD NOT LEAD TO THE CONCLUSION THAT ACTION CAN NOW BE TAKEN FOR REOPENING ASSESSME NT EVEN IF THE INFORMATION IS WHOLLY VAGUE, INDEFINITE, FAR-FETCHE D AND REMOTE. THE REASON FOR THE FORMATION OF THE BELIEF MUST BE HELD IN GOOD FAITH AND SHOULD NOT BE A MERE PRETENCE. THE POWERS OF THE INCOME-TAX OFFICER TO REOPEN ASS ESSMENT, THOUGH WIDE, ARE NOT PLENARY. THE WORDS OF THE STAT UTE ARE REASON TO BELIEVE AND NOT REASON TO SUSPECT. THE REOPENING OF THE ASSESSMENT AFTER THE LAPSE OF MANY YEARS IS A SERIOUS MATTER. THE ACT, NO DOUBT, CONTEMPLATES THE REOPENING OF THE ASSESSMENT IF GRO UNDS EXIST FOR BELIEVING THAT INCOME OF THE ASSESSEE HAS ESCAPED A SSESSMENT. THE UNDERLYING REASON FOR THAT IS THAT INSTANCES OF CON CEALED INCOME OR OTHER INCOME ESCAPING ASSESSMENT IN A LARGE NUMBER OF CAS ES COME TO THE NOTICE OF THE INCOME-TAX AUTHORITIES AFTER THE ASSE SSMENT HAS BEEN COMPLETED. THE PROVISIONS OF THE ACT IN THIS RESPEC T DEPART FROM THE NORMAL RULE THAT THERE SHOULD BE, SUBJECT TO RIGHT OF APPEAL AND REVISION FINALITY ABOUT ORDERS MADE IN JUDICIAL AND QUASI-JU DICIAL PROCEEDINGS. IT IS, THEREFORE, ESSENTIAL THAT BEFORE SUCH ACTION IS TAK EN THE REQUIREMENTS OF THE LAW SHOULD BE SATISFIED. THE LIVE LINK OR CLOSE NEXUS WHICH SHOULD BE THERE BETWEEN THE MATERIAL BEFORE THE INCOME-TAX OF FICER IN THE PRESENT CASE AND THE BELIEF WHICH HE WAS TO FORM REGARDING THE ESCAPEMENT OF THE INCOME OF THE ASSESSEE FROM ASSESSMENT BECAUSE OF THE LATTERS FAILURE OR OMISSION TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS WAS MISSING IN THE CASE. IN ANY EVENT, THE LINK WAS TOO TENUOUS TO PROVIDE A LEGALLY SOUND BASIS FOR REOPENING THE ASSESSMENT. T HE MAJORITY OF THE LEARNED JUDGES IN THE HIGH COURT, IN OUR OPINION, W ERE NOT IN ERROR IN HOLDING THAT THE SAID MATERIAL COULD NOT HAVE LED T O THE FORMATION OF THE BELIEF THAT THE SAID MATERIAL COULD NOT HAVE LED TO THE FORMATION OF THE BELIEF THAT THE INCOME OF THE ASSESSEE-RESPONDENT H AD ESCAPED ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 25 ASSESSMENT BECAUSE OF HIS FAILURE OR OMISSION TO DI SCLOSE FULLY AND TRULY ALL MATERIAL FACTS. WE WOULD, THEREFORE, UPHOLD THE VIEW OF THE MAJORITY AND DISMISS THE APPEAL WITH COSTS. 35. IN THE REASONS SO RECORDED, THE ASSESSING OFFIC ER HAS FURTHER STATED THAT DETAILED ENQUIRIES HAVE BEEN CONDUCTED BY THE INVES TIGATION WING AND IT HAS BEEN FOUND THAT THESE TRANSACTIONS PERTAINS TO THE ASSESSEE WHERE THE ASSESSEE HAS PAID CASH LOANS TO VARIOUS PERSONS THR OUGH RAMESH MANIHAR GROUP DURING THE YEAR UNDER CONSIDERATION. HERE, TH E QUESTION IS NOT ABOUT THE RELIANCE PLACED BY THE ASSESSING OFFICER ON THE ENQ UIRY CONDUCTED BY THE INVESTIGATION WING WHICH THE ASSESSING OFFICER IS W ELL WITHIN HIS JURISDICTION TO PLACE RELIANCE UPON BUT THE QUESTION IS HOW THE INV ESTIGATION WING HAS ARRIVED AT THE FINDING THAT THE DATA SO FOUND PERTAINS TO T HE ASSESSEE ONLY AND THE TRANSACTIONS RELATES TO CASH LOANS PROVIDED BY THE ASSESSEE THROUGH RAMESH MANIHAR GROUP AND WHETHER THE BASIS OF ARRIVING AT SUCH A FINDING HAS BEEN GONE INTO BY THE ASSESSING OFFICER PRIOR TO RECORDI NG OF THE REASONS AND WHETHER THE SAME IS EVIDENT FROM THE READING OF THE REASONS SO RECORDED BY THE ASSESSING OFFICER. THE SAID QUESTION BECOMES MO RE RELEVANT AND CRITICAL TO OUR MIND IN VIEW OF THE FACT THAT THE DATA SO SHARE D BY DCIT CENTRAL CIRCLE-3 JAIPUR AND IN POSSESSION OF THE ASSESSING OFFICER I S NOT TANGIBLE AND SPECIFIC RATHER IT IS VAGUE AND IS IN ABBREVIATED FORM AND U NLESS THE SAME IS ANALYSED AND EXAMINED THOROUGHLY AND NECESSARY LINKAGE IS ES TABLISHED WITH THE ASSESSEE, THE SAME CANNOT BE RELIED UPON. HOWEVER, WE FIND THAT THE REASONS SO RECORDED ARE TOTALLY SILENT ABOUT IT IN TERMS OF THE FINDINGS OF THE INVESTIGATION WING AND HOW THE AO HAS ANALYSED THE SAME AND REACHED TO A REASONABLE BRIEF THAT SUCH ENQUIRIES CONDUCTED BY T HE INVESTIGATION WING ARE SELF-SUFFICIENT TO DECIPHER THE EXACT NATURE OF THE TRANSACTIONS AND ITS LINKAGE WITH THE ASSESSEE AND BY VIRTUE OF IT, THERE IS A P OTENTIAL ESCAPEMENT OF INCOME. WE THEREFORE FIND THAT IT IS A CASE WHERE THE REASONS HAVE BEEN RECORDED MERELY BASIS INFORMATION RECEIVED FROM DCI T CENTRAL CIRCLE-3, JAIPUR AND SO CALLED ENQUIRY CONDUCTED BY THE INVESTIGATIO N WING, IN A MECHANICAL ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 26 MANNER WITHOUT BRINGING ON RECORD THE FINDINGS OF T HE INVESTIGATION WING WHICH COULD HAVE PROVIDED THE TANGIBLE MATERIAL AND ITS N EXUS WITH THE FORMATION OF BELIEF THAT THE TRANSACTIONS SO REFLECTED IN THE DA TA PERTAINS TO THE ASSESSEE WHICH HAS ESCAPEMENT ASSESSMENT. IT IS THEREFORE A CASE WHERE THERE IS NEITHER ANY TANGIBLE MATERIAL IN POSSESSION OF THE AO NOR A NY NEXUS/CONNECTION HAS BEEN ESTABLISHED BY THE AO WITH THE ASSESSEE BY ANA LYZING THE DATA SO COLLECTED DURING THE COURSE OF SEARCH AND RECEIVED BY HIM. THE REASONS SO RECORDED ARE CLEARLY SILENT ON THIS AND AS WE HAVE STATED ABOVE, THE ASSESSING OFFICER HAS TO SPEAK HIS MIND THROUGH THE REASONS S O RECORDED BY HIM AND NOTHING MORE CAN BE INFERRED OR SUPPLEMENTED IN THE REASONS SO RECORDED. IN THIS REGARD, USEFUL REFERENCE CAN BE DRAWN TO THE D ECISION OF THE HONBLE DELHI HIGH COURT IN CASE OF MEENAKSHI OVERSEAS PVT LTD (SUPRA) WHEREIN THE HONBLE HIGH COURT HELD AS UNDER: 19. A PERUSAL OF THE REASONS AS RECORDED BY THE AO REVEALS THAT THERE ARE THREE PARTS TO IT. IN THE FIRST PART, THE AO HA S REPRODUCED THE PRECISE INFORMATION HE HAS RECEIVED FROM THE INVESTIGATION WING OF THE REVENUE. THIS INFORMATION IS IN THE FORM OF DETAILS OF THE A MOUNT OF CREDIT RECEIVED, THE PAYER, THE PAYEE, THEIR RESPECTIVE BA NKS, AND THE CHEQUE NUMBER. THIS INFORMATION BY ITSELF CANNOT BE SAID T O BE TANGIBLE MATERIAL. 20. COMING TO THE SECOND PART, THIS TELLS US WHAT T HE AO DID WITH THE INFORMATION SO RECEIVED. HE SAYS: 'THE INFORMATION SO RECEIVED HAS BEEN GONE THROUGH.' ONE WOULD HAVE EXPECTED HIM TO POINT OUT WHAT HE FOUND WHEN HE WENT THROUGH THE INFORMATION. IN OTHE R WORDS, WHAT IN SUCH INFORMATION LED HIM TO FORM THE BELIEF THAT IN COME ESCAPED ASSESSMENT. BUT THIS IS ABSENT. HE STRAIGHTAWAY REC ORDS THE CONCLUSION THAT 'THE ABOVESAID INSTRUMENTS ARE IN THE NATURE O F ACCOMMODATION ENTRY WHICH THE ASSESSEE HAD TAKEN AFTER PAYING UNA CCOUNTED CASH TO THE ACCOMMODATION ENTRY GIVEN (SIC GIVER)'. THE AO ADDS THAT THE SAID ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 27 ACCOMMODATION WAS 'A KNOWN ENTRY OPERATOR' THE SOUR CE BEING 'THE REPORT OF THE INVESTIGATION WING'. 21. THE THIRD AND LAST PART CONTAINS THE CONCLUSION DRAWN BY THE AO THAT IN VIEW OF THESE FACTS, 'THE ALLEGED TRANSACTION IS NOT THE BONAFIDE ONE. THEREFORE, I HAVE REASON TO BE BELIEVE THAT AN INCO ME OF RS. 5,00,000 HAS ESCAPED ASSESSMENT IN THE AY 2004-05 DUE TO THE FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MAT ERIAL FACTS NECESSARY FOR ITS ASSESSMENT... ' 22. AS RIGHTLY POINTED OUT BY THE ITAT, THE 'REASON S TO BELIEVE' ARE NOT IN FACT REASONS BUT ONLY CONCLUSIONS, ONE AFTER THE OT HER. THE EXPRESSION 'ACCOMMODATION ENTRY' IS USED TO DESCRIBE THE INFOR MATION SET OUT WITHOUT EXPLAINING THE BASIS FOR ARRIVING AT SUCH A CONCLUSION. THE STATEMENT THAT THE SAID ENTRY WAS GIVEN TO THE ASSE SSEE ON HIS PAYING 'UNACCOUNTED CASH' IS ANOTHER CONCLUSION THE BASIS FOR WHICH IS NOT DISCLOSED. WHO IS THE ACCOMMODATION ENTRY GIVER IS NOT MENTIONED. HOW HE CAN BE SAID TO BE 'A KNOWN ENTRY OPERATOR' IS EV EN MORE MYSTERIOUS. CLEARLY THE SOURCE FOR ALL THESE CONCLUSIONS, ONE A FTER THE OTHER, IS THE INVESTIGATION REPORT OF THE DIT. NOTHING FROM THAT REPORT IS SET OUT TO ENABLE THE READER TO APPRECIATE HOW THE CONCLUSIONS FLOW THEREFROM. 23. THUS, THE CRUCIAL LINK BETWEEN THE INFORMATION MADE AVAILABLE TO THE AO AND THE FORMATION OF BELIEF IS ABSENT. THE REASO NS MUST BE SELF EVIDENT, THEY MUST SPEAK FOR THEMSELVES. THE TANGIB LE MATERIAL WHICH FORMS THE BASIS FOR THE BELIEF THAT INCOME HAS ESCA PED ASSESSMENT MUST BE EVIDENT FROM A READING OF THE REASONS. THE ENTIR E MATERIAL NEED NOT BE SET OUT. HOWEVER, SOMETHING THEREIN WHICH IS CRI TICAL TO THE FORMATION OF THE BELIEF MUST BE REFERRED TO. OTHERWISE THE LI NK GOES MISSING. ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 28 24. THE REOPENING OF ASSESSMENT UNDER SECTION 147 I S A POTENT POWER NOT TO BE LIGHTLY EXERCISED. IT CERTAINLY CANNOT BE INVOKED CASUALLY OR MECHANICALLY. THE HEART OF THE PROVISION IS THE FOR MATION OF BELIEF BY THE AO THAT INCOME HAS ESCAPED ASSESSMENT. THE REASONS SO RECORDED HAVE TO BE BASED ON SOME TANGIBLE MATERIAL AND THAT SHOU LD BE EVIDENT FROM READING THE REASONS. IT CANNOT BE SUPPLIED SUBSEQUE NTLY EITHER DURING THE PROCEEDINGS WHEN OBJECTIONS TO THE REOPENING AR E CONSIDERED OR EVEN DURING THE ASSESSMENT PROCEEDINGS THAT FOLLOW. THIS IS THE BARE MINIMUM MANDATORY REQUIREMENT OF THE FIRST PART OF SECTION 147 (1) OF THE ACT. 25. AT THIS STAGE IT REQUIRES TO BE NOTED THAT SINC E THE ORIGINAL ASSESSMENT WAS PROCESSED UNDER SECTION 143 (1) OF T HE ACT, AND NOT SECTION 143 (3) OF THE ACT, THE PROVISO TO SECTION 147 WILL NOT APPLY. IN OTHER WORDS, EVEN THOUGH THE REOPENING IN THE PRESE NT CASE WAS AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVA NT AY, IT WAS NOT NECESSARY FOR THE AO TO SHOW THAT THERE WAS ANY FAI LURE TO DISCLOSE FULLY OR TRULY ALL MATERIAL FACTS NECESSARY FOR THE ASSES SMENT. 26. THE FIRST PART OF SECTION 147 (1) OF THE ACT RE QUIRES THE AO TO HAVE 'REASONS TO BELIEVE' THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. IT IS THUS FORMATION OF REASON TO BELIE VE THAT IS SUBJECT MATTER OF EXAMINATION. THE AO BEING A QUASI JUDICIA L AUTHORITY IS EXPECTED TO ARRIVE AT A SUBJECTIVE SATISFACTION IND EPENDENTLY ON AN OBJECTIVE CRITERIA. WHILE THE REPORT OF THE INVESTI GATION WING MIGHT CONSTITUTE THE MATERIAL ON THE BASIS OF WHICH HE FO RMS THE REASONS TO BELIEVE THE PROCESS OF ARRIVING AT SUCH SATISFACTIO N CANNOT BE A MERE REPETITION OF THE REPORT OF INVESTIGATION. THE RECO RDING OF REASONS TO BELIEVE AND NOT REASONS TO SUSPECT IS THE PRE- COND ITION TO THE ASSUMPTION OF JURISDICTION UNDER SECTION 147 OF THE ACT. THE REASONS TO BELIEVE MUST DEMONSTRATE LINK BETWEEN THE TANGIBLE MATERIAL AND THE ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 29 FORMATION OF THE BELIEF OR THE REASON TO BELIEVE TH AT INCOME HAS ESCAPED ASSESSMENT. 36. IN THE PRESENT CASE, AS ALREADY NOTICED, THE R EASONS TO BELIEVE CONTAIN NOT THE REASONS BUT THE CONCLUSIONS OF THE AO ONE AFTER THE OTHER. THERE IS NO INDEPENDENT APPLICATION OF MIND BY THE AO TO THE TANGIBLE MATERIAL WHICH FORMS THE BASIS OF THE REAS ONS TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT. THE CONCLUSIONS OF T HE AO ARE AT BEST A REPRODUCTION OF THE CONCLUSION IN THE INVESTIGATION REPORT. INDEED IT IS A 'BORROWED SATISFACTION'. THE REASONS FAIL TO DEMONS TRATE THE LINK BETWEEN THE TANGIBLE MATERIAL AND THE FORMATION OF THE REAS ON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT. 37. FOR THE AFOREMENTIONED REASONS, THE COURT IS SA TISFIED THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, NO ERROR HAS B EEN COMMITTED BY THE ITAT IN THE IMPUGNED ORDER IN CONCLUDING THAT THE I NITIATION OF THE PROCEEDINGS UNDER SECTION 147/148 OF THE ACT TO REO PEN THE ASSESSMENTS FOR THE AYS IN QUESTION DOES NOT SATISFY THE REQUIR EMENT OF LAW. 36. IN THE INSTANT CASE AS WELL, WE FIND THAT AFTER RECORDING THE INFORMATION RECEIVED FROM THE OFFICE OF DCIT CENTRAL CIRCLE-3 J AIPUR, IN THE SECOND PART OF THE REASONS SO RECORDED, THE ASSESSING OFFICER HAS STATED AS TO WHAT ANALYSIS HE HAS DONE WITH THE INFORMATION SO COLLECTED/RECEI VED AND HE SAYS THAT FROM THE PERUSAL OF THE INFORMATION, IT IS FOUND THAT TH E ASSESSEE HAS PAID CASH LOAN OF RS 25,00,00,000/- OUT OF HIS INCOME FROM UNDISCL OSED IN A.Y 2011-12 AND RECEIVED INTEREST ACCORDINGLY. WHAT ANALYSIS HE H AS DONE TO ARRIVE AT THE BELIEF THAT THE INFORMATION SO RECEIVED PERTAINS TO THE ASSESSEE, THE NATURE OF TRANSACTIONS ARE IN NATURE OF CASH LOANS ONLY AND N OT OTHERWISE, WHO ARE THE PERSONS TO WHOM THESE ALLEGED CASH LOANS HAVE BEEN PROVIDED AND THEIR IDENTITIES AND WHEREABOUTS, AND WE FIND THAT THERE IS NOTHING WHICH HAS BEEN STATED IN THE REASONS SO RECORDED AND APPARENTLY, T HE BASIS OF SUCH CONCLUSIONS ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 30 AND NOT JUST THE REASONS IS THE ENQUIRY CONDUCTED B Y THE INVESTIGATION WING AND AS WE HAVE NOTED ABOVE, NOTHING FROM THE REPORT OF THE INVESTIGATION WING IS SET OUT IN THE REASONS AND THUS, THE CRUCIAL LIN K BETWEEN THE INFORMATION AND FORMATION OF BELIEF THAT INCOME HAS ESCAPED ASSESSM ENT IS CLEARLY ABSENT IN THE INSTANT CASE AND THE RATIO LAID DOWN IN THE AFORESA ID DECISION RENDERED BY THE HONBLE DELHI HIGH COURT SQUARELY APPLIES IN THE IN STANT CASE. 37. IN THE REASONS SO RECORDED, WE FIND THAT THE AS SESSING OFFICER HAS FURTHER STATED THAT THE TRANSACTIONS SO REFLECTED IN THE DA TA RELATES TO CASH LOAN PROVIDED BY THE ASSESSEE TO VARIOUS PERSONS THROUGH RAMESH MANIHAR GROUP AND SINCE THE SAME HAS NOT BEEN REFLECTED IN THE LO ANS AND ADVANCES ACCOUNT IN HIS BALANCE SHEET AND NO CASH BOOK HAS BEEN PROD UCED IN THE ORIGINAL ASSESSMENT PROCEEDINGS, THERE IS A FAILURE ON PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR DE TERMINATION OF INCOME. IN OUR VIEW, IN ORDER TO ESTABLISH FAILURE ON PART OF THE ASSESSEE TO REFLECT THE TRANSACTIONS IN HIS BOOKS OF ACCOUNTS, FIRSTLY, IT HAS TO BE PRIMA FACIE ESTABLISHED BY THE REVENUE THAT THE TRANSACTIONS IN FACT PERTAINS TO THE ASSESSEE AND HE HAS CARRIED OUT THESE TRANSACTIONS OF CASH LOANS THROUGH RAMESH MANIAR GROUP AND HE HAS REASONS TO BELIEVE T HAT INCOME HAS ESCAPED ASSESSMENT. THEREFORE, WHERE THE REVENUE HAS NOT BE EN ABLE TO ESTABLISH, EVEN PRIMA FACIE, BASIS ANY TANGIBLE MATERIAL THAT THE TRANSACTIONS PERTAINS TO THE ASSESSEE OR THE NECESSARY NEXUS HAS BEEN ESTABL ISHED WITH THE ASSESSEE AND FORMATION OF BELIEF THAT INCOME IN THE HANDS OF THE ASSESSEE HAS ESCAPED ASSESSMENT HAS NO SOUND BASIS AND FOUNDATION, AS WE HAVE NOTED ABOVE, ESCAPEMENT OF INCOME CANNOT BE LINKED MERELY ON ACC OUNT OF FAILURE ON PART OF THE ASSESSEE TO REFLECT TRULY AND FULLY ALL MATERIA L FACTS AS THE SAID CONDITION IS AN ADDITIONAL CONDITION AND A CONDITION WHICH IS SU BSERVIENT TO SATISFACTION OF THE FIRST CONDITION WHICH THE ASSESSING OFFICER HAS FAILED TO FULFILL IN THE INSTANT CASE. WE ARE THEREFORE OF THE VIEW THAT IT WOULD N OT BE NECESSARY FOR US TO EXAMINE ANY FURTHER AS TO WHETHER THE ESCAPEMENT OF INCOME HAS HAPPENED ON ACCOUNT OF FAILURE ON THE PART OF THE ASSESSEE TO D ISCLOSE FULLY AND TRULY ALL ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 31 MATERIAL NECESSARY FOR HIS ASSESSMENT AND THE CONTE NTS RAISED IN THIS REGARD ARE THUS LEFT OPEN. 38. LOOKING AT THE MATTER FROM ANOTHER PERSPECTIVE, IT IS A MATTER OF RECORD THAT THE INFORMATION WHICH HAS BEEN RECEIVED BY THE ASSESSING OFFICER FROM THE DCIT CENTRAL CIRCLE-3, JAIPUR HAS BEEN COLLECTED DU RING THE COURSE OF SEARCH ACTION U/S 132 IN CASE OF RAMESH MANIHAR GROUP. WH ERE THE ASSESSING OFFICER WAS SO SURE AND CLEAR THAT THE ENQUIRIES MADE BY TH E INVESTIGATION WING AND THE INFORMATION SO COLLECTED DURING THE COURSE OF S EARCH ACTION IN CASE OF RAMESH MANIHAR GROUP SHOWS THAT CERTAIN TRANSACTION S OF CASH LOANS HAVE BEEN FOUND WHICH ARE PERTAINING TO THE ASSESSEE, TH E QUESTION IS WHAT PRECLUDED THE ASSESSING OFFICER FROM TAKING ACTION U/S 153C OF THE ACT INSTEAD OF SECTION 148 OF THE ACT. AFTER THE AMENDMENT MAD E BY THE FINANCE ACT WITH EFFECT FROM 01.06.2016 WHERE ANY BOOKS OF ACCOUNT O R DOCUMENTS, SEIZED OR REQUISITIONED, PERTAINS OR PERTAIN TO, OR ANY INFOR MATION CONTAINED THEREIN, RELATES TO PERSON OTHER THE PERSON WHO HAS BEEN SEA RCHED, THE ACTION UNDER SECTION 153C CAN BE TAKEN WHICH IS NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 147 AND SECTION 148 OF THE ACT. THE LD PCI T/D/R HAS CONTENDED THAT THERE ARE CONDITIONS SPECIFIED IN SECTION 153C WHIC H NEEDS TO BE FULFILLED AND ONLY IN SUCH CASES WHERE THE CONDITIONS SO SPECIFIE D ARE FULFILLED, THE ASSESSING OFFICER CAN TAKE RECOURSE TO SECTION 153C OF THE AC T. IT WAS SUBMITTED THAT IN THE INSTANT CASE, THE CONDITIONS SPECIFIED IN SECTI ON 153C ARE NOT FULFILLED AND HENCE, BASIS RECEIPT OF INFORMATION, THE ASSESSING OFFICER RECORDED THE REASONS FOR ESCAPEMENT OF INCOME AND INITIATED THE PROCEEDI NGS U/S 147 BY ISSUANCE OF NOTICE U/S 148 OF THE ACT. IN THIS REGARD, WE REFE R TO THE PROVISIONS OF SECTION 153C WHICH READ AS UNDER: NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 153, WHER E THE ASSESSING OFFICER IS SATISFIED THAT,- (A) ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE AR TICLE OR THING, SEIZED OR REQUISITIONED, BELONGS TO; OR ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 32 (B) ANY BOOKS OF ACCOUNT OR DOCUMENTS, SEIZED OR REQUI SITIONED, PERTAINS OR PERTAIN TO, OR ANY INFORMATION CONTAINED THEREIN, R ELATES TO, A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTI ON 153A, THEN THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS, SEIZED OR REQUIS ITIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION O VER SUCH OTHER PERSON AND THAT ASSESSING OFFICER SHALL PROCEED AGAINST EACH S UCH OTHER PERSON AND ISSUE NOTICE AND ASSESS OR REASSESS THE INCOME OF T HE OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A, IF, THAT ASSESSING OFFICER IS SATISFIED THAT THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED HAVE A BEARING ON THE DETERMINATION O F THE TOTAL INCOME OF SUCH OTHER PERSON FOR SIX ASSESSMENT YEARS IMMEDIAT ELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH SEARCH IS CONDUCTED OR REQUISITION IS MADE AND FOR THE RELEVANT ASSESSM ENT YEAR OR YEARS REFERRED TO IN SUB-SECTION (1) OF SECTION 153A 39. ON PERUSAL OF THE AFORESAID PROVISIONS, IT IS N OTED THAT FIRSTLY, THE ASSESSING OFFICER OF THE SEARCHED PERSON HAS TO REC ORD SATISFACTION THAT ANY BOOKS OF ACCOUNT OR DOCUMENTS ETC, SEIZED DURING TH E COURSE OF SEARCH PERTAINS OR PERTAIN TO, OR ANY INFORMATION CONTAINED THEREIN , RELATES TO ANY OTHER PERSON OTHER THAN THE PERSON WHO HAS BEEN SEARCHED. ONCE SUCH A SATISFACTION IS RECORDED, THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSE TS SEIZED ARE REQUIRED TO BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURI SDICTION OVER SUCH OTHER PERSON. THEREAFTER, THE ASSESSING OFFICER HAVING JU RISDICTION OVER SUCH OTHER PERSON HAS TO RECORD HIS OWN SATISFACTION THAT THE BOOKS OF ACCOUNT OR DOCUMENTS SEIZED HAVE A BEARING ON THE DETERMINATIO N OF THE TOTAL INCOME OF SUCH OTHER PERSON FOR SIX ASSESSMENT YEARS IMMEDIAT ELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH SEARCH IS CONDUCTED OR REQUISITION IS MADE AND FOR THE RELEVANT ASSESSMENT YEAR OR YEARS REFERRED TO IN SUB-SECTION (1) OF SECTION 153A. ONCE THE SAID SAT ISFACTION IS RECORDED, HE CAN THEN PROCEED AGAINST EACH SUCH OTHER PERSON AND ISS UE NOTICE AND ASSESS OR ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 33 REASSESS THE INCOME OF THE OTHER PERSON IN ACCORDAN CE WITH THE PROVISIONS OF SECTION 153A OF THE ACT. 40. IN THE INSTANT CASE, THE FACT THAT THE ASSESSIN G OFFICER HAS NOT INVOKED THE PROVISIONS OF SECTION 153C, IT SHOWS THAT THERE WAS NO SATISFACTION WHICH HAS BEEN RECORDED BY THE ASSESSING OFFICER HAVING J URISDICTION OVER RAMESH MANIAR GROUP THAT ANY BOOKS OF ACCOUNT OR DOCUMENTS ETC, SEIZED DURING THE COURSE OF SEARCH PERTAINS OR PERTAIN TO, OR ANY INF ORMATION CONTAINED THEREIN, RELATES TO THE ASSESSEE AND IN ABSENCE OF SATISFACT ION SO RECORDED, THE BOOKS OF ACCOUNT OR DOCUMENTS SEIZED DURING THE COURSE OF SE ARCH WERE NOT HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION O VER THE ASSESSEE. IN ABSENCE OF SATISFACTION SO RECORDED AND HANDING OVER OF THE SEIZED MATERIAL BY THE ASSESSING OFFICER OF THE SEARCHED PERSON, THE ASSES SING OFFICER COULD NOT BY HIMSELF HAVE INVOKED THE PROVISIONS OF SECTION 153C OF THE ACT. IT IS ALSO MANIFEST THAT IN ABSENCE OF ANY SUCH SATISFACTION T HAT DOCUMENTS SO FOUND AND SEIZED DURING THE COURSE OF SEARCH PERTAINS TO THE ASSESSEE OR ANY INFORMATION CONTAINED THEREIN RELATES TO THE ASSESSEE, NO LINKA GE OR NEXUS HAS BEEN ESTABLISHED WITH THE ASSESSEE AND WHAT HAS BEEN REC EIVED BY THE ASSESSING OFFICER IS PURE RAW DATA IN ABBREVIATED FORM AND IN FORMATION WHICH PER SE CANNOT CONSTITUTE AS TANGIBLE MATERIAL, AS WE HAVE NOTED EARLIER, AND UNLESS AND UNTIL THE SAID DATA AND INFORMATION IS PROPERLY ANALYSED AND EXAMINED AND NECESSARY LINKAGE AND NEXUS ESTABLISHED WITH THE AS SESSEE, THE SAME CANNOT FORM THE BASIS FOR INITIATING ACTION U/S 147 IN HAN DS OF THE ASSESSEE. IT CANNOT BE A CASE THAT SINCE ACTION COULD NOT BE TAKEN UNDE R SECTION 153C, THE ASSESSING OFFICER IS FREE TO INITIATE ACTION U/S 14 7 OF THE ACT AS THE COURTS HAVE HELD FROM TIME TO TIME THAT REOPENING OF ASSESSMENT PROCEEDINGS IS A POTENT POWER WHICH CANNOT BE CASUALLY AND MECHANICALLY INV OKED AND LIGHTLY EXERCISED BY THE ASSESSING OFFICER AND THE INVOCATION OF SUCH POWERS IS BASED ON SATISFACTION OF CERTAIN CARDINAL TESTS AND PRINCIPL ES AS WE HAVE DISCUSSED ABOVE AND WHICH HAVE NOT BEEN FULFILLED IN THE INSTANT CA SE. ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 34 41. IN LIGHT OF ABOVE DISCUSSIONS AND FOLLOWING THE DECISIONS REFERRED SUPRA, WE ARE OF THE CONSIDERED VIEW THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, THE ASSUMPTION OF JURISDICTION AN D INITIATION OF THE PROCEEDINGS UNDER SECTION 147 OF THE ACT TO REOPEN THE ASSESSMENT PROCEEDINGS DOES NOT SATISFY THE REQUIREMENT OF LAW AND IS HEREBY SET-ASIDE. 42. IN THE RESULT, GROUND NO. 1 OF THE ASSESSEES A PPEAL IS ALLOWED. GROUND NO. 2 OF THE ASSESSEES APPEAL WAS NOT PRESSED DURI NG THE COURSE OF HEARING, HENCE, THE SAME IS DISMISSED AS NOT PRESSED. GROUN D NO. 3 IS ALSO DISMISSED IN LIGHT OF AFORESAID DISCUSSIONS. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ITA NO. 1298/JP/2019 43. WE NOW REFER TO REVENUES GROUNDS OF APPEAL CHA LLENGING THE DELETION OF ADDITIONS MADE BY THE LD CIT(A) AND THE CONTENTIONS ADVANCED BY THE RESPECTIVE PARTIES IN THIS REGARD. 44. THE LD PCIT/D/R TOOK US THROUGH THE FINDINGS OF THE ASSESSING OFFICER AND SUBMITTED THAT DURING THE COURSE OF SEARCH AS W ELL AS IN POST SEARCH PROCEEDINGS, STATEMENTS OF SHRI RAMESH CHAND MAHESH WARI WERE RECORDED U/S 132(4) AS WELL AS UNDER SECTION 131 OF THE ACT IN W HICH HE HAS ADMITTED THAT RAMESH MANIHAR GROUP WAS INVOLVED IN CASH LOAN FINA NCING TRANSACTIONS ON A LARGE SCALE AND AMOUNTS WERE TAKEN IN CASH FROM THE LENDERS AND THE SAME WAS ADVANCED TO THE BORROWERS IN CASH, AND THEY EAR NED COMMISSION ON THESE TRANSACTIONS. IT WAS FURTHER SUBMITTED THAT VARIOUS INCRIMINATING DOCUMENTS WERE FOUND AND SEIZED BY THE INVESTIGATION WING OF THE DEPARTMENT, WHICH INCLUDES LOOSE PAPERS, PEN DRIVES ETC. ON ANALYSIS OF THE SEIZED DOCUMENTS PARTICULARLY PEN DRIVES, IT HAS BEEN NOTED BY THE A SSESSING OFFICER THAT ONE PEN DRIVE IS HAVING NAMES IN SHORT/CODE WORD JAGAT.XLS X THAT NAMES OF THE LENDERS AS WELL AS BORROWERS WERE FOUND IN CODE NAME OR MAY BE SAY IN SHORT NAME ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 35 LIKEWISE PRAKASH CHAND KOTHARI THE ASSESSEE AS P CK. THIS SHORT NAME IS AGAIN VERIFIABLE WITH ANOTHER PEN DRIVE NAMELY FRO M & TO GROUP.XLSX, WHERE NAME OF THE ASSESSEE PCK, IS MENTIONED ALONG WITH HIS FULL NAME ADDRESS IN THE SEIZED DOCUMENTS. ACCORDINGLY, IT WAS ESTABLISH ED THAT THE ASSESSEE WAS THE ONLY PERSON WHO HAS GIVEN HIS UNACCOUNTED CASH FOR LENDING THROUGH THE RAMESH MANIHAR GROUP. ON FURTHER EXAMINATION OF THE SE PEN DRIVES, IT WAS ALSO FOUND THAT AMOUNT OF TRANSACTION WAS MENTIONED AFTE R SUPPRESSING FIVE ZEROS I.E. RS. 25,00,00,000/- WAS MENTIONED AS 2500 IN TH E FORM OF DIFFERENT ENTRIES. IN THESE PEN DRIVES, IT WAS ALSO MENTIONED, AS FOR WHICH PERIOD AND ON WHAT RATE OF INTEREST, THE AMOUNT WAS ADVANCED TO THE BO RROWERS. IT WAS ACCORDINGLY SUBMITTED THAT BASED ON SUCH CORROBORAT ION, THE EXCEL SHEET NOTINGS EXTRACTED FROM THE JAGAT. XIS FROM THE PEN DRIVE IN POSSESSION OF RAMESH MANIHAR REVEALED THAT THESE ARE RELATED TO S HRI PRAKASH CHAND KOTHARI (PCK). 45. IT WAS FURTHER SUBMITTED BY THE LD PCIT/D/R THA T SH. RAMESH CHAND MAHESHWARI IN HIS STATEMENT DATED 07.01.2016 RECORD ED ON OATH U/S 132(4) OF THE ACT AND HIS SUBSEQUENT STATEMENT DATED 08.11.20 17 RECORDED U/S 131 OF THE ACT HAS ADMITTED THAT HE WAS INVOLVED IN CASH L OAN FINANCING TRANSACTIONS ON A LARGE SCALE. IT WAS FURTHER SUBMITTED THAT RA MESH MANIHAR GROUP HAVE FILED THEIR APPLICATION BEFORE THE INCOME TAX SETTL EMENT COMMISSION AND HAVE SURRENDERED THE INCOME SO EARNED AS COMMISSION ON A CCOUNT OF THESE UN- RECORDED OR UNACCOUNTED TRANSACTIONS AND DUE TAXES HAS ALSO BEEN PAID. IT WAS SUBMITTED THAT BASIS THE SAID APPLICATION FILED AND ADMISSION BY THE RAMESH MANIHAR GROUP, THE ASSESSING OFFICER HAS RIGHTLY ST ATED THAT THE ASSESSEE ALSO MADE TRANSACTIONS REGARDING LENDING ITS UNACCOUNTED MONEY THROUGH SAID GROUP AND ADVANCED THE SAME OUT OF BOOKS OF ACCOUNT S TO EARN INTEREST INCOME WHICH WAS ALSO NOT RECORDED IN THE BOOKS OF ACCOUNT S. IT WAS ACCORDINGLY SUBMITTED THAT THE EXCEL SHEET NOTINGS EXTRACTED FR OM THE JAGAT. XIS FROM THE PEN DRIVE IN POSSESSION OF SH. RAMESH CHAND MAHESHW ARI THUS STAND CORROBORATED BY HIS STATEMENT RECORDED ON OATH U/S 132(4) OF THE ACT AND ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 36 SUBSEQUENT STATEMENT RECORDED U/S 131 OF THE ACT AS WELL AS THE APPLICATION MOVED BY HIS GROUP BEFORE THE SETTLEMENT COMMISSION . 46. REGARDING ASSESSEE REQUEST TO PROVIDE CROSS EXA MINATION OF SH. RAMESH CHAND MAHESHWARI WHOSE STATEMENTS WERE RECORDED AND RELIED UPON BY THE ASSESSING OFFICER, IT WAS SUBMITTED THAT THE ASSESS ING OFFICER RIGHTLY STATED THAT THE RIGHT OF CROSS EXAMINATION IS NOT AN ABSOLUTE R IGHT AND DEPENDS UPON FACTS AND CIRCUMSTANCES OF THE EACH CASE AND IN THE INSTA NT CASE, THE ASSESSEE HAS BEEN ALLOWED AMPLE OPPORTUNITY BUT HE HAS FAILED TO FURNISHED ANY EVIDENCE CONTRADICTING THE INFORMATION AVAILABLE WITH THE RE VENUE AND NO SUBSTANTIVE MATERIAL HAS BEEN PRODUCED BY THE ASSESSEE. IT WAS ALTERNATIVELY SUBMITTED THAT WHERE THE BENCH SO DECIDE THAT THE ASSESSEE BE PROVIDED AN OPPORTUNITY OF CROSS-EXAMINATION, THE MATTER MAY BE REMANDED TO THE FILE OF THE ASSESSING OFFICER TO PROVIDE SUCH AN OPPORTUNITY AND MERELY O N THIS GROUND, THE ADDITIONS CANNOT BE DELETED AND ASSESSMENT PROCEEDINGS SET-AS IDE. 47. IT WAS ACCORDINGLY SUBMITTED BY THE LD PCIT THA T THE ASSESSING OFFICER HAS RIGHTLY HELD THAT THE ASSESSEE ADVANCED A SUM O F RS. 25 CRORES IN CASH WHICH IS NOT RECORDED IN HIS BOOKS OF ACCOUNTS THRO UGH RAMESH MANIHAR GROUP AND SAME WAS BROUGHT TO TAX IN THE HANDS OF THE ASS ESSEE. FURTHER, CONSIDERING THE PERIOD UNDER CONSIDERATION AS WELL AS AMOUNT ADVANCED AND TAKING RATE OF INTEREST @1% PER MONTH, ADDITION TOW ARDS INTEREST OF RS. 90,58,625/- WAS ALSO MADE IN THE HANDS OF THE ASSES SEE. 48. IT WAS SUBMITTED THAT THE LD CIT(A) HAS NOT APP RECIATED THE ENTIRETY OF FACTS AND CIRCUMSTANCES OF THE CASE, THE DATA SEIZE D DURING THE COURSE OF SEARCH, THE STATEMENT RECORDED DURING SEARCH AND PO ST-SEARCH PROCEEDINGS IN RIGHT PERSPECTIVE AND IN A SUMMARILY MANNER HAS DEL ETED THE ADDITIONS MADE BY THE ASSESSING OFFICER. HE ACCORDINGLY SUPPORTED THE FINDINGS OF THE ASSESSING OFFICER AND SUBMITTED THAT THE ORDER OF T HE LD CIT(A) BE SET-ASIDE AND THAT OF THE AO BE SUSTAINED. ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 37 49. IN HIS SUBMISSIONS, THE LD A/R SUBMITTED THAT F IRSTLY, THE CONTENTION OF THE LD PCIT/DR THAT THE LD CIT(A) HAS PASSED THE OR DER IN A SUMMARLY MANNER IS NOT CORRECT. IT WAS SUBMITTED THAT DETAILED SUB MISSIONS WERE FILED BEFORE THE LD CIT(A) AND THE MATTER WAS HEARD AT LENGTH BY THE LD CIT(A) AND AFTER APPRECIATING THE ENTIRETY OF FACTS AND CIRCUMSTANCE S OF THE CASE AND CONSIDERING VARIOUS AUTHORITIES ON THE SUBJECT INCL UDING THE DECISIONS OF THE HONBLE SUPREME COURT, THE LD CIT(A) HAS PASSED A D ETAILED, SPEAKING AND A WELL-REASONED ORDER. THE LD A/R ACCORDINGLY SUPPORT ED THE FINDINGS AND THE ORDER OF THE LD CIT(A). 50. THE LD A/R FURTHER SUBMITTED THAT THE ASSESSIN G OFFICER, ON THE BASIS OF EXTRACTS OF EXCEL SHEETS AND STATEMENTS RECORDED DU RING THE COURSE OF SEARCH HAS FAILED TO POINT OUT ANY BASIS OF ALLEGATION OF INVOLVEMENT OF THE ASSESSEE IN PROVIDING CASH LOANS. IT WAS SUBMITTED THAT EVEN ID ENTITIES OF THE PERSONS ALLEGED TO HAVE RECEIVED CASH LOANS FROM THE ASSESS EE THROUGH RAMESH MANIHAR GROUP WAS NOT ESTABLISHED AND THUS, THE SEC OND LEG OF THE ALLEGED TRANSACTION COULD NOT BE PROVED. IT WAS SUBMITTED T HAT EXTENSIVE SEARCH WAS CONDUCTED ON 06.05.2010 ON KGK GROUP OF WHICH ASSES SEE IS A PART AND NO UNACCOUNTED INCOME, CASH OR HUNDIS ETC. WERE FOUND. IT WAS SUBMITTED THAT RAMESH MANIHAR NOWHERE IN HIS STATEMENTS STATED THE NAME OF THE ASSESSEE AND EVEN NO OPPORTUNITY OF CROSS-EXAMINING RAMESH M ANIHAR WAS PROVIDED TO THE ASSESSEE. 51. IT WAS FURTHER SUBMITTED THAT VARIOUS DISCREPAN CIES EXISTED IN THE EXTRACTS OF THE EXCEL SHEET PROVIDED BY THE AO SUCH AS THERE WAS DISCONNECT BETWEEN THE DATES MENTIONED IN DIFFERENT COLUMNS (C OLUMN NO. 1 AND COLUMN NO. 14 OF THE EXCEL SHEET), DATES IN COLUMN NO. 14 ARE NOT IN CHRONOLOGICAL ORDER, COLUMN NO. 7 AND COLUMN NO. 8 ARE SUBSEQUENT LY ADDED BY THE DEPARTMENT WHICH DID NOT FORM PART OF THE ORIGINAL FORMAT MAINTAINED BY RAMESH MANIHAR GROUP AND SEIZED AND FORMING PART OF REASONS RECORDED. ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 38 52. IT WAS FURTHER SUBMITTED THAT ANOTHER SET OF EX TRACTS OF THE EXCEL SHEETS RELIED UPON BY LD. AO WAS NOTHING BUT PREPARED FOR THE PURPOSE OF SENDING INVITATION CARDS AND EVEN IN THESE EXCEL SHEETS, IT WAS SUBMITTED THAT RAMESH MANIHAR IN RESPONSE TO QUESTION NO. 20 AND QUESTION NO. 30 CONFIRMED HAVING PREPARED THESE DETAILS FOR THE PURPOSE OF SENDING I NVITATION CARDS. THESE EXCEL SHEETS REFERRED TO ANKOOT, OFFICE, RCM LIST AND XYZ AND NOT W.R.T ANY TRANSACTION ALLEGEDLY UNDERTAKEN BY THE ASSESSEE. IN THE EXCEL SHEET, 2610 RECORDS HAVE BEEN MAINTAINED. IT IS CERTAINLY NOT T HE CASE OF THE LD. AO THAT RAMESH MANIHAR ACTED AS A BROKER FOR ALL OF THESE 2 610 INDIVIDUALS FOR LENDING MONEY IN CASH TO OTHER PERSONS. WHAT INFORMATION HA S BEEN RECORDED IN OTHER WORKSHEETS IS NOT CLEAR. THE SCREEN SHOT OF THE EXC EL SHEET, HIGHLIGHTING ASSESSEES NAME WAS TAKEN ON 22.10.2018, WHEREAS TH E SEARCH WAS CONDUCTED ON 07.01.2016. WHETHER SUCH SCREENSHOT WAS TAKEN BY THE LD. AO OR BY CENTRAL CIRCLE-3 OR BY INVESTIGATION WING OR BY ANY OTHER P ERSON/DEPARTMENT IS ALSO NOT CLEAR. 53. IT WAS FURTHER SUBMITTED THAT FOLLOWING REFEREN CES FROM THE STATEMENT OF RAMESH MANIHAR RECORDED DURING SEARCH MAY BE NOTED WHICH INDICATE NO INVOLVEMENT OF THE ASSESSEE IN PROVIDING CASH LOANS : Q. NO. AVERMENTS MADE BY RAMESH MANIHAR 12 RM ACTED AS A BROKER IN PROVIDING LOANS THROUGH CHE QUE AND RTGS BETWEEN THE LENDERS AND BORROWERS. 13 LOANS WERE NOT GIVEN IN CASH AND ALL THE TRANSACTIO NS WERE THROUGH BANKING CHANNELS. 15 DEALINGS IN CASH WAS DONE BY HIM ONLY ON HIS PERSON AL ACCOUNT, OUT OF HIS OWN FUNDS. RM EARNED INTEREST THEREON RANGING FROM 0.8 TO 1% P ER MONTH, IN CASH, WHICH WAS APPLIED FOR THE PURPOSE O F FURTHER LENDING. 17 BUSINESS OF LENDING IN CASH, ON HIS PERSONAL ACCOUN T, WAS ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 39 DONE BY HIM FROM LAST 4 TO 5 YEARS, AS ON THE DATE OF SEARCH. 25 RM NEVER COLLECTED ANY IDENTIFICATION PROOF OF PERS ONS WITH WHOM TRANSACTIONS WERE UNDERTAKEN BY HIM. 31 EXCEL SHEETS WERE PREPARED AND MAINTAINED BY THE RECEPTIONIST FOR THE PURPOSE OF SENDING INVITATION CARDS. SUCH INFORMATION HAD NO LINK WITH THE REGULAR BUSIN ESS CARRIED OUT BY RM. 54. IT WAS SUBMITTED THAT IN THE EXTRACTS OF THE ST ATEMENT RECORDED U/S 131, AS SET OUT IN THE AO ORDER AT PAGES 11 AND 12, RAME SH MANIHAR HAS NOT SPECIFIED THE NAME OF THE ASSESSEE OR ANY TRANSACTI ON DONE THROUGH HIM IN CASH. EVEN COPY OF SUCH STATEMENTS RECORDED, U/S 13 1 ON 08.11.2017 WAS NOT PROVIDED TO THE ASSESSEE DURING THE COURSE OF ASSES SMENT PROCEEDINGS. 55. IT WAS FURTHER SUBMITTED THAT THE LD. AO WRONGL Y RELIED ON THE EXTRACTS OF THE EXCEL SHEET MAINTAINED BY RAMESH MANIHAR GROUP AND SEIZED DURING SEARCH ON 07.01.2016 FOR THE REASON THAT LD. AO DID NOT CO MPLY WITH THE PROVISIONS OF SECTION 65A AND 65B OF THE EVIDENCE ACT, 1872 AND N O SATISFACTION RECORDED BY AO THAT THE OUTPUT OF THE PEN-DRIVES/ COMPUTER RECO RDS WERE ANALYZED ON AS IS BASIS BY THE DEPARTMENT AND THERE WAS NO RISK O F BEING TEMPERED BY ANYONE. IN SUPPORT, RELIANCE WAS PLACED ON THE DECI SION OF HONBLE SUPREME COURT IN THE CASE OF ANVAR P.V. V. P.K. BASHEER [2 014] SSC ONLINE SC 732 (SC) WHEREIN IT WAS HELD THAT AN ELECTRONIC RECORD BY WAY OF SECONDARY EVIDENCE SHALL NOT BE ADMITTED IN EVIDENCE UNLESS THE REQUIR EMENTS UNDER SECTION 65B ARE SATISFIED. THUS, IN THE CASE OF CD, VCD, CH IP, ETC., THE SAME SHALL BE ACCOMPANIED BY THE CERTIFICATE IN TERMS OF SECTION 65B OBTAINED AT THE TIME OF TAKING THE DOCUMENT, WITHOUT WHICH, THE SECONDARY E VIDENCE PERTAINING TO THAT ELECTRONIC RECORD, IS INADMISSIBLE 56. IT WAS FURTHER SUBMITTED THAT IN CHUHARMAL (198 8) 172 ITR 250 (SC), THE HONBLE SUPREME COURT POINTED OUT THAT ALTHOUGH RIG ORS OF RULE OF EVIDENCE CONTAINED IN THE EVIDENCE ACT WERE NOT APPLICABLE T O THE INCOME-TAX ACT, BUT ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 40 THE GENERAL PRINCIPLES OF EVIDENCE ARE APPLICABLE T O INCOME-TAX PROCEEDINGS. FURTHER, RELIANCE WAS PLACED ON FOLLOWING DECISIONS TO SUBMIT THAT ADDITION CANNOT BE MADE ON THE BASIS OF EXCEL SHEETS OR LOOS E SHEETS OR PEN DRIVES: V.C. SHUKLA [1998] 3 SCC 410 COMMON CAUSE VS. UOI [2017] 394 ITR 220 (SC) ACIT VS KATRINA ROSEMARY TURCOTTEE [2017] 190 TTJ 6 81 (MUM) 57. IT WAS FURTHER SUBMITTED THAT THE FACT THAT THE APPLICATION OF RAMESH MANIHAR GROUP HAS BEEN ACCEPTED BY THE SETTLEMENT C OMMISSION CONSIDERING HIM TO BE A MONEY BROKER, HAS NO IMPACT ON THE CASE OF THE ASSESSEE. IT WAS SUBMITTED THAT ADMISSION OF RAMESH MANIHARS PETITI ON BY SETTLEMENT COMMISSION NO WAY ESTABLISHES THAT PCK IS NO ONE EL SE BUT THE ASSESSEE, SHRI PRAKASH CHAND KOTHARI. IN SUPPORT, RELIANCE WAS PLA CED ON THE DECISION OF THE COORDINATE MUMBAI BENCHES IN CASE OF SH. ANIL JAGGI VS ACIT [2018] 168 ITD 612 (MUM.)(TRIB.). 58. IT WAS FURTHER SUBMITTED THAT AUTHENTICITY OF T HE DATA, ALLEGEDLY CONTAINED IN THE PEN-DRIVES SEIZED FROM RAMESH MANI HAR GROUP HAS TO BE PROVED INDEPENDENTLY. UNLESS THE ENTRIES ARE CORROB ORATED BY INDEPENDENT, CREDIBLE, TANGIBLE AND CLINCHING MATERIAL, THE SAME CANNOT BE USED AGAINST THE ASSESSEE, TREATING THE SAME AS GOSPEL TRUTH. IT W AS SUBMITTED THAT HONBLE SUPREME COURT, IN THE CASE OF ARJUN PANDITRAO KHOTK AR VS. KAILASH KUSHANRAO GORANTYAL AND ORS. (IN CIVIL APPEAL NOS. 20825-20826 OF 2017, 2407 AND 3696 OF 2018 VIDE ITS ORDER DATED 14.07.2020) CONFIRMED ITS EARLIER VIEW IN THE CASE OF ANVAR P.V. V P.K. BASHEER (SUPRA) APROPOS ADMISSIBILITY OF ELECTRONIC RECORDED AS EVIDENCE AND HELD THAT A CERTIFICATE UN DER SECTION 65B(4) OF THE EVIDENCE ACT, 1872 IS MANDATORY, AND A CONDITION PR ECEDENT TO THE ADMISSIBILITY OF EVIDENCE BY WAY OF ELECTRONIC RECORD. THE NON-OBSTANTE LANGUAGE OF SECTION 65B(1) MAKES IT CLEAR THAT WHEN IT COMES TO INFORMA TION CONTAINED IN AN ELECTRONIC RECORD, ADMISSIBILITY AND PROOF THEREOF MUST FOLLOW THE DRILL OF SECTION 65B, WHICH IS A SPECIAL PROVISION IN THIS BEHALF. R EQUIREMENT UNDER SECTION ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 41 65B(4) IS NOT NECESSARY IF THE ORIGINAL COMPUTER/LA PTOP ETC IN WHICH THE DATA/INFORMATION, RELIED UPON, ITSELF IS PRODUCED A ND CONDITIONS UNDER SECTIONS 65B(2) AND 65B(4) MUST BE SATISFIED CUMULATIVELY. 59. IT WAS FURTHER SUBMITTED THAT IN CASE OF K. NAT WAR SINGH (ITA NO. 3258,3290,4168/DEL/2013) AND JAGAT SINGH (ITA NO. 3036, 3037, 3038 AND 3039/DEL/2015) , HAVING SIMILAR FACTUAL MATRIX, WHEREIN PEN-DRIVES WERE SEIZED FROM ONE SHRI CHETAN GUPTA ALLEGEDLY CONTAINING DET AILS OF APPROX. 148 PEOPLE, WHOSE MONEY AND WEALTH, ALLEGEDLY, WAS ADMINISTERED BY THE SAID SHRI CHETAN GUPTA, ADDITIONS WERE MADE IN THE CASE OF PERSONS, BASED ON ENTRIES IN SUCH PEN-DRIVES/ COMPUTER RECORDS, HOWEVER, SUCH ADDITIO NS WERE DELETED BY THE APPELLATE AUTHORITIES. FURTHER, RELIANCE WAS PLACED ON THE DECISION IN CASE OF DCIT VS MAHABIR PRASAD GUPTA (ITA NO. 713 & 714/DEL/2011 DATED 23.11.2012) WHERE THE TRIBUNAL HELD THAT THE REVENUE COULD NOT ESTABLISH THAT NAME OF THE PERSON RECORDED IN THE DIARY AS 'MPG' M EANT MAHABIR PRASAD GUPTA ONLY I.E. ASSESSEE AND ADDITIONS WERE DELETED . IT WAS SUBMITTED THAT THE SAID DECISION WAS APPROVED BY THE HONBLE DELHI HIG H COURT (IN ITA NO. 814/2015 DATED 20.10.2015) AND ALSO FOLLOWED SUBSEQUENTLY BY THE HONBLE DELHI HIGH COURT IN CASE OF SANT LAL [2020] 317 CTR 483 (DEL). 60. IT WAS SUBMITTED THAT IT IS A TRITE LAW THAT NO ADDITION CAN BE MADE ON THE BASIS OF DOCUMENTS FOUND FROM THIRD PARTY WITHO UT EXAMINING THE THIRD PARTY AND LINKING THE CONTENTS OF THE DOCUMENTS OBT AINED FROM SUCH THIRD PARTY WITH THE ASSESSEE AND IN SUPPORT, RELIANCE WAS PLAC ED ON FOLLOWING DECISIONS IN CASE OF BANGODAYA COTTON MILLS LTD. V. CIT (2011) 3 30 ITR 104 (CAL), DCIT V. MAHENDRA AMBALAL PATEL (2010) 40 DTR 243 (GUJ), PRA KASH CHAND NAHTAV. CIT (2008) 301 ITR 134 (MP), CIT V. SALEK CHAND (2008) 300 ITR 426 (ALL), SMC SHARE BROKER LTD. (2007) 288 ITR 345 (DELHI), CIT V . JMD COMPUTERS & COMMUNICATIONS (P.) LTD.(2009) 180 TAXMAN 485 (DELH I), KRISHNA TEXTILES V. CIT (2009) 310 ITR 0227 (GUJ) AND CIT V. A.N. DYANE SWARAN (2008) 297 ITR 135 (MAD). ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 42 61. IT WAS FURTHER SUBMITTED THAT THE LD. AO HAS MA DE THE ADDITION INVOKING THE PROVISIONS OF SECTION 69. FOR INVOKING THE PROV ISIONS OF SECTION 69 HEAVY BURDEN LIES ON THE LD. AO TO PROVE THAT INVESTMENT HAS TAKEN PLACE, AND THE INVESTMENT IS OWNED BY THE ASSESSEE. IT WAS SUBMITT ED THAT THERE IS THE DIFFERENCE OF BURDEN UNDER SECTION 68 VIS--VIS SECTION 69. IF A CREDIT ENTRY IS FOUND IN BOOKS OF THE ASSESSEE, ENTIRE BURDEN LIES ON THE ASSESSEE TO PROVE IDENTITY, CREDIT-WORTHINESS AND GENUINENESS OF THE SAID CREDITOR. AS AGAINST THIS, IF ANY INVESTMENT IS ALLEGED TO BE IN THE NAME OF T HE ASSESSEE WHICH AS PER THE DEPARTMENT IS NOT RECORDED IN THE BOOKS OF THE ASSE SSEE, THE BURDEN IS ON THE DEPARTMENT TO FIRST PROVE ITS ALLEGATION BY WAY OF IMPECCABLE EVIDENCES. IT IS WELL SETTLED THAT THE BURDEN IS ON THE PERSON WHO M AKES ALLEGATION AND TO DISCHARGE SUCH BURDEN THE SAID PERSON HAS TO LEAD P OSITIVE EVIDENCES. MERE FACT THAT THERE WERE CERTAIN ENTRIES FOUND FROM REC ORDS OF THIRD PARTY, IT IS NOT SUFFICIENT TO MAKE ADDITIONS ON GROUNDS THAT ASSESS EE HAD MADE INVESTMENT. IT WAS SUBMITTED THAT EVEN THE ASSESSEE HAS NOT BEEN I DENTIFIED NOR IS THERE ANY ALLEGATION BY RAMESH MANIHAR THAT IN THE PEN-DRIVE ALLEGED TO BE HIS, THERE WERE DEPOSITS RECEIVED BY HIM FROM THE ASSESSEE. IT WAS SUBMITTED THAT WITHOUT EXAMINING THE PERSONS, WHO ALLEGEDLY RECEIV ED LOANS, AND WITHOUT OBTAINING DUE CONFIRMATIONS FROM THEM, EVEN THE FAC TUM OF INVESTMENT IS NOT PROVED. WHAT WOULD BE THE CASE OF THE DEPARTMENT, IF THE SO -CALLED ALLEGED LOAN TAKERS REFUSE TO EVER HAVING RECEIVED LOAN FRO M THE ASSESSEE? WITHOUT AGREEING, IF THE LOANS GIVEN IS NOT PROVED, WHAT IS THE POINT IN TRACING AND TAXING THE PERSON WHO ALLEGEDLY HAS GIVEN THE LOAN. IT WAS SUBMITTED THAT THE PRESENT CASE IS SIMILAR TO A SITUATION, WHEREIN, AN ALLEGATION IS MADE ON THE ASSESSEE TO HAVE MADE INVESTMENT IN LAND, WITHOUT E VEN IDENTIFYING SPECIFIC PIECE OF LAND, WHICH HAS BEEN ALLEGEDLY PURCHASED B Y THE ASSESSEE. THIS SITUATION CAN VERY WELL ARISE, WHEREIN SEARCH IS CO NDUCTED BY THE DEPARTMENT, AS IN THE PRESENT CASE, ON SOME BROKER, DEALING IN LAND TRANSACTIONS. IT WAS SUBMITTED THAT HONBLE GUJARAT HIGH COURT IN THE CA SE OF USHAKANT PATEL (2006) 282 ITR 553 (GUJ) HAS HELD THAT THE BURDEN OF PROOF THAT THE INVESTMENT IN THE ASSET NOT RECORDED IN THE BOOKS OF ACCOUNT IS ON TH E REVENUE. ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 43 62. IT WAS SUBMITTED THAT UNSUBSTANTIATED MATERIAL FOUND IN THE PEN-DRIVE CANNOT BE CONSIDERED AS CONCLUSIVE EVIDENCE SO AS TO MAKE ADDITIONS, TOWARDS UNEXPLAINED INVESTMENTS, IN THE HANDS OF THE ASSESS EE. UNDISPUTEDLY NO OTHER MATERIAL HAS BEEN BROUGHT TO THE FORE BY THE DEPART MENT, SUGGESTING ANY SUCH LOAN HAVING BEEN GIVEN BY THE ASSESSEE TO CERTAIN O THER ALLEGED PERSON. 63. IT WAS SUBMITTED THAT INSPITE OF SPECIFIC REQUE ST, NEITHER RAMESH MANIHAR WAS EXAMINED BY THE LD. AO NOR HIS CROSS EXAMINATIO N WAS ALLOWED TO THE ASSESSEE. NO ADDITION CAN BE MADE WITHOUT PROVIDIN G ADEQUATE OPPORTUNITY OF CROSS EXAMINATION OF A PERSON ON THE BASIS OF WHOSE STATEMENTS ADDITIONS MADE IN THE NAME OF THE ASSESSEE AND IN SUPPORT, RE LIANCE WAS PLACED ON THE HONBLE SUPREME COURT DECISION IN CASE OF ANDAMAN T IMBER INDUSTRIES V. CCE(2015) 281 CTR 0241 (SC), CIT V. ASHWANI GUPTA [2010] 191 TAXMAN 51 (DELHI), CIT V. SMC SHARE BROKERS LTD. [2007] 288 I TR 345 (DELHI) AND STATE OF KERALA V. K.T. SHADULI YUSUFF (1977) 39 STC 478 (SC ). SIMILARLY, INSPITE OF SPECIFIC REQUEST, LD. AO DID NOT EXAMINE THE PERSON S WHO, ACCORDING TO THE LD. AO, HAD RECEIVED LOANS FROM THE ASSESSEE THROUGH RA MESH MANIHAR GROUP. 64. IT WAS SUBMITTED THAT HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V. LAVANYA LAND (P) LTD. (2017) 297 CTR 204(BOM.) (HC) HELD THAT IF THE ENTRIES ON LOOSE SHEET OF PAPER, FOUND DURING SEARCH, ARE N OT CORROBORATED BY ANY OTHER EVIDENCE, NO ADDITION CAN BE MADE. SIMILARLY, IN ANOTHER CASE OF AARTI COLONIZERS COMPANY, CERTAIN INCRIMINATING MATERIAL IN THE FORM OF DATA STORED IN ELECTRONIC MEDIUM WAS FOUND IN SEARCH CONDUCTED ON THE PARTNERS OF THE ASSESSEE FIRM. ON THE BASIS OF SUCH ELECTRONIC EVID ENCES, ADDITIONS WERE MADE IN THE HANDS OF THE ASSESSEE FIRM. SUCH ADDITIONS W ERE SUBSEQUENTLY DELETED BY THE RAIPUR BENCH OF THE TRIBUNAL (ITA NO. 178 TO180/RPR/2014 DATED 01.07.2019) AND IT WAS OBSERVED BY THE TRIBUNAL THAT NO MATERI AL WAS FOUND TO SHOW THAT THE AMOUNT CONTAINED IN THE DATA WAS PAID BY THE ASSESSEE FIRM AT ANY POINT OF TIME. RESULTANTLY, IN THE ABSENCE OF A NY CORROBORATIVE EVIDENCES NO ADDITION CAN BE MADE. ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 44 65. IT WAS FURTHER SUBMITTED THAT THE LD AO, WITHOU T ANY BASIS, ALLEGED THAT ASSESSEE EARNED INTEREST, OF RS. 90,58,625, ON THE LOANS ADVANCED TO DIFFERENT PERSONS THROUGH RMG. SINCE THE ASSESSEE DID NOT PRO VIDE ANY LOAN, IN CASH, TO ANY PERSON THROUGH RMG, THERE WAS NO QUESTION OF AN Y INTEREST BEING EARNED BY THE ASSESSEE. 66. IT WAS ACCORDINGLY SUBMITTED THAT THE LD CIT(A) HAS RIGHTLY ACCEPTED THE CONTENTIONS OF THE ASSESSEE AND DELETED THE ADDITIO NS HOLDING THAT RAMESH MANIHAR WAS NEVER CONFRONTED BY THE LD. AO OR THE I NVESTIGATION WING AS TO WHAT PCK STANDS FOR, AGAINST THE NAME PCK, NO A DDRESS OR TELEPHONE NUMBER IS FOUND TO HAVE BEEN RECORDED, NO EVIDENCE OR BASIS TO SUGGEST PCK WAS NO ONE ELSE BUT THE ASSESSEE, NO EVIDENCE TO SU GGEST THAT ASSESSEE HAD ADVANCED LOANS IN CASH THROUGH RAMESH MANIHAR, EVID ENCES AS RELIED UPON BY LD. AO DO NOT RELATE TO THE ASSESSEE, IN THE STATEM ENTS RECORDED OF RAMESH MANIHAR, THERE IS NO REFERENCE TO PCK BEING CONSI DERED AS PRAKASH CHAND KOTHARI, DURING THE ASSESSMENT PROCEEDINGS, LD. AO COULD NOT POINT OUT ANY SPECIFIC PORTION OF THE STATEMENT OF RAMESH MANIHAR WHICH COULD SUGGEST INVOLVEMENT OF THE ASSESSEE IN PROVIDING CASH LOANS , IN CASE OF UNCORROBORATED ENTRIES KEPT BY THIRD PARTY, NO TAX LIABILITY CAN B E FASTENED ON THE ASSESSEE AND NO CASE COULD THUS BE MADE OUT TO PROVE THAT THE EN TRIES FOUND DURING THE SEARCH ON RAMESH MANIHAR GROUP RELATE TO THE ASSESS EE. THE LD A/R ACCORDINGLY SUPPORTED THE ORDER AND FINDINGS OF THE LD CIT(A) AND SUBMITTED THAT THE APPEAL FILED BY THE REVENUE BE DISMISSED. 67. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURUSED THE MATERIAL AVAILABLE ON RECORD. THE CASE OF THE REVENUE IS THAT THE ASS ESSEE HAD ADVANCED A SUM OF RS. 25 CRORES BY WAY OF CASH LOANS THROUGH RAMES H MANIHAR GROUP TO VARIOUS PERSONS WHICH IS NOT RECORDED IN HIS BOOKS OF ACCOUNTS AND THE SAME WAS BROUGHT TO TAX AS UNACCOUNTED INCOME. IT WAS A LSO HELD THAT THE ASSESSEE HAS ADVANCED THE SAID AMOUNT ON VARIOUS DATES FOR D IFFERENT PERIODS OF TIME, ACCORDINGLY, CONSIDERING THE RATE OF INTEREST @1% P ER MONTH, INTEREST OF RS. ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 45 90,58,625/- WAS DETERMINED AND THE SAME WAS ALSO BR OUGHT TO TAX IN THE HANDS OF THE ASSESSEE. THE CASE OF THE REVENUE THER EFORE IS THAT IT IS THE UNACCOUNTED MONEY WHICH BELONGS TO THE ASSESSEE AND WHICH HAS BEEN ADVANCED BY THE ASSESSEE BY WAY OF CASH LOANS THROU GH RAMESH MANIHAR GROUP AND THE SAME WAS THUS BROUGHT TO TAX. BESIDE S, THE INTEREST ON SUCH MONEY ADVANCED BY WAY OF CASH LOANS HAS BEEN DETERM INED APPLYING RATE OF INTEREST OF 12% AND THE SAME HAS ALSO BEEN BROUGHT TO TAX. 68. HERE, FIRST AND FORMOST ISSUE THAT ARISE FOR CO NSIDERATION IS REGARDING ON WHOM THE INITIAL ONUS LIES WHICH NEEDS TO BE DISCHA RGED. WHETHER IT IS REVENUE OR THE ASSESSEE WHO HAS TO DISCHARGE THE IN ITIAL BURDEN OF PROOF THAT SUCH UNACCOUNTED MONEY BELONGS TO THE ASSESSEE AND SECONDLY, THE SAME HAS BEEN ADVANCED BY THE ASSESSEE BY WAY OF CASH LOANS THROUGH RAMESH MANIHAR GROUP TO THIRD PARTIES AND HE HAS EARNED INTEREST T HEREON AND THE SAME HAS REMAIN UNACCOUNTED IN THE BOOKS OF ACCOUNTS. 69. IN THIS REGARD, IT IS NOTED THAT DURING THE COU RSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS ISSUED A SHOW CAUSE A S TO WHY THE ADDITION OF RS. 25 CRORES SHOULD NOT BE MADE AS UNACCOUNTED INC OME ALONG INTEREST @ 1% PER MONTH. IN RESPONSE TO THE SAID SHOW CAUSE NOTI CE, THE ASSESSEE STATED THAT HE, AT NO POINT OF TIME, DURING THE RELEVANT P REVIOUS YEAR OR OTHERWISE, HAS GIVEN ANY AMOUNT IN CASH, AS LOAN OR OTHERWISE, THR OUGH ANY PERSON, INCLUDING SH. RAMESH CHAND MAHESHWARI OF RAMESH MANIHAR GROUP . IT WAS FURTHER SUBMITTED BY THE ASSESSEE THAT FROM THE DOCUMENTS S O PROVIDED, THE ASSESSEE IS UNABLE TO UNDERSTAND AS TO HOW THE ASSESSING OFF ICER HAS INFERRED THAT HE HAS PROVIDED CASH LOANS TO DIFFERENT PERSONS THROUG H SH. RAMESH CHAND MAHESHWARI. THE REPLY SO FURNISHED BY THE ASSESSEE WAS EXAMINED BY THE ASSESSING OFFICER AND AS PER THE ASSESSING OFFICER, REPLY OF THE ASSESSEE IS OF ROUTINE NATURE HAVING NO EVIDENCE TO CONTRADICT THE INFORMATION AVAILABLE WITH THE REVENUE AND DULY INCORPORATED IN THE REASONS FO R REOPENING OF THE CASE AND THE ASSESSEE HAS FAILED TO SUBSTANTIATE THE ONU S CAST UPON HIM ABOUT THE ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 46 IMPUGNED TRANSACTIONS OF RS. 25 CRORES. DURING THE COURSE OF HEARING, THERE IS REITERATION ON PART OF THE LD PCIT/D/R THAT INITIAL ONUS LIES ON THE ASSESSEE WHICH HE HAS FAILED TO SATISFY AND RELIANCE HAS BEE N PLACED ON THE FINDINGS OF THE ASSESSING OFFICER IN THIS REGARD. 70. THE LD A/R IN HIS SUBMISSIONS HAS HOWEVER STATE D THAT THE ADDITION HAS BEEN MADE BY THE ASSESSING OFFICER BY WAY OF UNDISC LOSED INVESTMENT IN FORM OF CASH LOANS INVOKING THE PROVISIONS OF SECTION 69 AND THEREFORE, THE BURDEN LIES ON THE ASSESSING OFFICER TO PROVE THAT THE INV ESTMENT BY WAY OF CASH LOANS HAS INFACT TAKEN PLACE AND THE AMOUNT SO INVESTED B ELONGS TO THE ASSESSEE AND THE BURDEN IS ON THE REVENUE TO FIRST PROVE THE SAI D ALLEGATIONS BY LEADING POSITIVE EVIDENCE. IN THIS REGARD, OUR REFERENCE WA S DRAWN TO THE PROVISIONS OF SECTION 69 OF THE ACT WHICH READS AS UNDER: WHERE IN THE FINANCIAL YEAR IMMEDIATELY PRECEDING THE ASSESSMENT YEAR, THE ASSESSEE HAS MADE INVESTMENTS WHICH ARE NOT REC ORDED IN THE BOOKS OF ACCOUNT, IF ANY, MAINTAINED BY HIM FOR ANY SOURC E OF INCOME, AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE OF THE INVESTMENTS OR THE EXPLANATION OFFERED BY HIM IS NO T, IN THE OPINION OF THE ASSESSING OFFICER, SATISFACTORY, THE VALUE OF THE I NVESTMENTS MAY BE DEEMED TO BE THE INCOME OF THE ASSESSEE OF SUCH FIN ANCIAL YEAR. 71. ON PERUSAL OF THE AFORESAID PROVISIONS, IT IS O BSERVED THAT IT TALKS ABOUT A SITUATION WHERE IN ANY FINANCIAL YEAR, THE ASSESSEE HAS MADE INVESTMENTS WHICH ARE NOT RECORDED IN HIS BOOKS OF ACCOUNTS AND IN TH E INSTANT CASE, WHETHER THE ASSESSEE HAS MADE INVESTMENT BY WAY OF CASH LOANS A ND WHETHER THE SAME HAS NOT BEEN RECORDED IN HIS BOOKS OF ACCOUNTS, IT HAS TO BE DETERMINED BY THE ASSESSING OFFICER AND A FINDING IS TO BE RECORDED B RINGING COGENT EVIDENCE ON RECORD THAT MONEY SO INVESTED BELONGS TO THE ASSESS EE AND THE SAME HAS BEEN ADVANCED BY WAY OF CASH LOANS THROUGH RAMESH MANIHA R GROUP. AND ONCE IT IS ESTABLISHED THAT THESE TWO CONDITIONS ARE SATISFIED REGARDING MONEY SO INVESTED ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 47 BELONGS TO THE ASSESSEE AND MAKING INVESTMENT BY WA Y OF CASH LOANS AND NOT RECORDING IT IN HIS BOOKS OF ACCOUNTS, IN SUCH A SI TUATION, AN OPPORTUNITY MAY BE PROVIDED TO THE ASSESSEE CALLING FOR HIS EXPLANATIO N ABOUT THE NATURE AND SOURCE OF SUCH INVESTMENT. AND WHERE EITHER NO EXPL ANATION HAS BEEN FURNISHED BY THE ASSESSEE OR THE EXPLANATION SO OFF ERED IS NOT FOUND SATISFACTORY IN THE OPINION OF THE ASSESSING OFFICE R, THE SAID INVESTMENT MAY BE DEEMED TO THE INCOME OF THE ASSESSEE FOR SUCH FINAN CIAL YEAR. LOOKING AT IT FROM ANOTHER PERSPECTIVE, WE FIND THAT WHERE IN RES PONSE TO SHOW-CAUSE NOTICE, THE ASSESSEE HAD CATERGORICALLY DENIED MAKI NG ANY SUCH INVESTMENT THROUGH RAMESH MANIHAR GROUP AND THEN, IN SUCH A SC ENARIO, HOW CAN THE ASSESSEE LEAD ANY EVIDENCE IN SUPPORT OF A TRANSACT ION WHICH HE DENIED HAVING EXECUTED AND UNDERTAKEN AT FIRST PLACE. THEREFORE, WE AGREE WITH THE CONTENTIONS ADVANCED BY THE LD A/R THAT THE INITIAL ONUS LIES ON THE ASSESSING OFFICER TO ESTABLISH THROUGH LEADING POSITIVE EVIDE NCE THAT THE ASSESSEE HAS INFACT INVESTED THE MONEY BY WAY OF CASH LOANS THRO UGH RAMESH MANIHAR GROUP AND THEREFORE, WE BELIEVE THAT MERELY STATING THAT THE SAME HAS NOT BEEN RECORDED IN THE BOOKS OF ACCOUNTS SO MAINTAINE D BY THE ASSESSEE IS NOT SUFFICIENT ENOUGH TO DISCHARGE THE INITIAL BURDEN C AST ON THE ASSESSING OFFICER. 72. IN ORDER TO DETERMINE WHETHER THE ONUS CAST ON THE ASSESSING OFFICER HAS BEEN SATISFIED OR NOT AND BASIS OF HIS FINDINGS, WE REFER TO THE INFORMATION AND OTHER MATERIAL/DOCUMENTATION AVAILABLE WITH THE ASS ESSING OFFICER PRIOR TO INITIATION OF THE REASSESSMENT PROCEEDINGS AS WELL AS ANALYSIS/EXAMINATION THEREOF DURING THE COURSE OF REASSESSMENT PROCEEDIN GS AND BESIDES, OTHER INFORMATION/DOCUMENTATION RELIED UPON BY THE ASSESS ING OFFICER DURING THE COURSE OF REASSESSMENT PROCEEDINGS TO ARRIVE AT HIS FINDINGS AND WHICH FORMS THE BASIS OF SUBJECT ADDITION OF UNDISCLOSED INVEST MENT IN THE IMPUGNED ORDER. THESE INCLUDE INFORMATION RECEIVED FROM DCIT CENTRA L CIRCLE-3 JAIPUR PRIOR TO RECORDING OF REASONS AND ISSUANCE OF NOTICE U/S 148 , COPY OF EXTRACTS OF EXCEL SHEETS/DATA FOUND IN 18 PEN DRIVES DURING THE COURS E OF SEARCH U/S 132 FROM THE PREMISES OF SHRI RAMESH MANIHAR AND RELEVANT TO THE ASSESSEE, COPY OF ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 48 STATEMENT OF SHRI RAMESH CHAND MAHESHWARI ALIAS SHR I RAMESH MANIHAR RECORDED DURING THE COURSE OF SEARCH U/S 132(4) DAT ED 7.01.2016, COPY OF STATEMENT OF SHRI RAMESH CHAND MAHESWARI ALIAS SHRI RAMESH MANIHAR SUBSEQUENTLY RECORDED U/S 131 DATED 8.11.2017. 73. FIRSTLY, WE REFER TO THE INFORMATION SO RECEIVE D BY THE ASSESSING OFFICER FROM DCIT CENTRAL CIRCLE -3, JAIPUR PRIOR TO RECORD ING OF REASONS AND ISSUANCE OF NOTICE U/S 148, IT TALKS IN GENERAL ABOUT THE SE ARCH AND SEIZURE ACTION U/S 132 CARRIED OUT IN CASE OF RAMESH MANIHAR GROUP AND DURING THE COURSE OF SEARCH, VOLUMINOUS DATA COMPRISING OF EXCEL SHEETS IN PEN DRIVES WERE SEIZED FROM THE OFFICE OF THIS SAID GROUP. IT HAS BEEN FUR THER STATED THAT THE SAID GROUP WAS INDULGING IN CASH LOAN FINANCING ON A LARGE SCA LE AND WERE ENGAGED AS FINANCE BROKERS FOR ARRANGING CASH LOANS BETWEEN VA RIOUS BORROWERS AND LENDERS AND THE DATA SO SEIZED RELATE TO SUCH UNREC ORDED CASH TRANSACTIONS. THEREAFTER, TALKING SPECIFICALLY ABOUT THE ASSESSEE , IT HAS BEEN STATED IN THE SAID INFORMATION THAT CERTAIN TRANSACTIONS HAVE BEE N NOTICED REGARDING THE ASSESSEE, SHRI PRAKASH CHAND KOTHARI WHEREIN THE AS SESSEE HAS PAID CASH LOANS OF RS 25 CRORES TO VARIOUS PERSONS THROUGH THE SAID GROUP AND HAS EARNED INTEREST ON THE SAID AMOUNT. IF WE LOOK AT THE DAT A SO PROVIDED IN FORM OF A TABLE IN THE INFORMATION SO RECEIVED FROM DCIT CENT RAL CIRCLE-3 JAIPUR AND AS RECORDED IN THE REASONS BY THE ASSESSING OFFICER, W E FIND THAT IT LIST DOWN CERTAIN TRANSACTIONS ON VARIOUS DATES AND HAS VARIO US COLUMNS WITH HEADING T, @, AT AND CERTAIN FIGURES HAVE BEEN STATED UNDER EACH HEADING CORRESPONDING TO VARIOUS DATES, AND THEREAFTER, HAS TWO COLUMNS WITH HEADING FROM AND TO WHEREIN UNDER COLUMN FROM, PCK HAS BEEN STATED AND UNDER COLUMN TO, CERTAIN NAMES AGAIN IN ABBREVIAT ED FORM HAS BEEN STATED. ON PERUSAL OF THE SAID DATA, IT IS NOT DISCERNIBLE AS TO WHAT KIND AND NATURE OF TRANSACTIONS THE SAID DATA DEPICTS AS EVERYTHING IS IN ABBREVIATED FORM, WHAT T STAND FOR, WHAT @ STAND FOR, WHAT AT STAND FOR, WHAT PCK STAND FOR, WHAT IS THE LINKAGE OF PCK WITH OTHER PERSONS WHO SE NAME ARE AGAIN WRITTEN IN ABBREVIATED FORM, AND HOW THIS DATA AND SO CALLE D TRANSACTIONS ARE RELATED TO ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 49 THE ASSESSEE AND HOW THE FIGURES SO DEPICTED REPRES ENT AND ADD UP TO A FIGURE OF RS 25 CRORES ARE AGAIN NOT DISCERNABLE EVEN FROM CLOSE READING OF THE SAID DATA AND SAID DATA IS UNCLEAR, VAGUE AND IN ABBREVI ATED AND CODIFIED FORM AND THEREFORE THE SAID DATA PER SE ON A STANDALONE BASIS CANNOT CONSTITUTE AS TANGIBLE AND COGENT MATERIAL/EVIDENCE IN POSSESSION OF THE ASSESSING OFFICER UNLESS THE SAME IS ANALYSED AND EXAMINED THOROUGHLY AND NECESSARY LINKAGE IS ESTABLISHED WITH THE ASSESSEE. 74. NOW, LETS LOOK AT AS TO HOW THE ASSESSING OFFI CER HAS EXAMINED AND ANALYSED THE SAID DATA FURTHER DURING THE COURSE OF REASSESSMENT PROCEEDINGS. THE ASSESSING OFFICER HAS REFERRED TO AND COMPARED THE AFORESAID DATA WITH DATA FOUND IN OTHER PEN DRIVES AS WELL AS STATEMENT S OF RAMESH CHAND MAHESHWARI RECORDED U/S 132(4) DURING THE COURSE OF SEARCH AND POST SEARCH PROCEEDINGS U/S 131 OF THE ACT GIVEN THAT THE SAID DATA HAS BEEN FOUND IN PEN DRIVES FROM THE PREMISES OF RAMESH MANIHAR GROUP DU RING THE COURSE OF SEARCH. APPARENTLY, THE AFORESAID DATA WAS FOUND I N PEN DRIVE JAGAT.XLSX WHERE NAME OF LENDERS AND BORROWERS WERE ADMITTEDLY STATED IN CODE NAME OR ABBREVIATED FORM AND IT HAS BEEN CLAIMED BY THE REV ENUE THAT PCK STANDS FOR THE ASSESSEE, SHRI PRAKASH CHAND KOTHARI. THE SAID DATA WAS THEN COMPARED WITH DATA IN OTHER PEN DRIVES NAMELY FROM AND TWO GROUP.XLSX, COPY OF NEW DIR.XLS, DATA IN ANKOOT FILE WHERE NAME OF PRAKASH CHAND KOTHARI, KGK JEWELLERS, ADDRESS AND PHONE NUMBER HAS BEEN STATED AND BASIS SUCH EXERCISE, THE ASSESSING OFFICER HAS REACHED THE FINAL CONCLUS ION AND RECORDED A FINDING THAT PCK STANDS FOR THE ASSESSEE, SHRI PRAKASH CH AND KOTHARI AND THE TRANSACTIONS STATED IN THE FIRST EXCEL FILE SO FOUN D IN THE PEN DRIVE JAGAT.XLSX PERTAINS TO THE ASSESSEE. THE ASSESSING OFFICER HA S FURTHER STATED THAT ON EXAMINATION OF THESE PEN DRIVES, IT IS FOUND THAT T HE AMOUNT OF TRANSACTIONS WERE MENTIONED AFTER SUPPRESSING FIVE ZEROS AND DIF FERENT INDIVIDUAL ENTRIES TOTALING TO RS 2500 ACTUALLY MEANS AND REFLECT A TO TAL FIGURE OF RS 25 CRORES. THE ASSESSING OFFICER HAS THEREAFTER REFERRED TO TH E STATEMENT OF SHRI RAMESH CHAND MAHESHWARI RECORDED U/S 132(4) DURING THE COU RSE OF SEARCH AND IN ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 50 PARTICULAR, QUESTION NO. 16, 17, 18 AND 19 AND THE RESPONSE TO THE SAID QUESTIONS SUBMITTED BY SHRI RAMESH CHAND MAHESHWARI HAS BEEN CONSIDERED AND REPRODUCED IN THE REASSESSMENT ORDER. THE ASSE SSING OFFICER HAS ALSO REFERRED TO THE STATEMENT OF SHRI RAMESH CHAND MAHE SHWARI RECORDED U/S 131 DURING THE COURSE OF HIS OWN ASSESSMENT PROCEEDINGS AND ALSO THE APPLICATION FILED BY HIS RAMESH MANIHAR GROUP BEFORE THE SETTLE MENT COMMISSION WHERE THEY SURRENDERED THEIR COMMISSION INCOME ON SUCH UN RECORDED AND UNACCOUNTED TRANSACTIONS AND DUE TAXES HAVE BEEN PA ID. BASIS THE SAME, THE AO HAS ARRIVED AT A FINDING THAT PCK STANDS FOR T HE ASSESSEE AND HE HAS ALSO ADVANCED CASH LOANS WORTH RS 25 CRORES THROUGH SHRI RAMESH MANIHAR GROUP AND HAS EARNED INTEREST THEREON WHICH HAS BEEN BROU GHT TO TAX. 75. IN THIS REGARD, AS WE HAVE NOTED EARLIER, THE P ROCEEDINGS HAVE BEEN INITIATED UNDER SECTION 147 AND NOT UNDER SECTION 1 53C AS NO SATISFACTION HAS BEEN RECORDED BY THE ASSESSING OFFICER OF RAMESH MA NIHAR GROUP THAT SEIZED DOCUMENTS PERTAINS TO THE ASSESSEE OR ANY INFORMATI ON CONTAINED THEREIN RELATES TO THE ASSESSEE AND THE ORIGINAL SEIZED PEN DRIVES FOUND DURING THE COURSE OF SEARCH HAVE NOT BEEN HANDED OVER TO THE A SSESSING OFFICER BY ASSESSING OFFICER OF THE RAMESH MANIHAR GROUP. THER EFORE, WHAT HAS BEEN RECEIVED BY THE ASSESSING OFFICER IN THE INSTANT CA SE IS ONLY THE INFORMATION IN FORM OF EXTRACTS AND PRINT OUT OF THE EXCEL SHEETS CONTAINING THE AFORESAID DATA IN VARIOUS PEN DRIVES FOUND DURING THE COURSE OF SE ARCH IN CASE OF RAMESH MANIHAR GROUP. HERE, IT IS RELEVANT TO NOTE THAT P RESUMPTION AVAILABLE UNDER SECTION 132(4A) IN TERMS OF AUTHENCITY AND CORRECTN ESS OF CONTENTS OF SUCH DATA/INFORMATION FOUND IN THE PEN DRIVES CAN BE DRA WN AGAINST THE PERSON IN WHOSE CASE THE SEARCH HAS BEEN AUTHORIZED AND FROM WHOSE POSSESSION OR CONTROL SUCH PEN DRIVES HAVE BEEN FOUND DURING THE COURSE OF SEARCH. THEREFORE, IN THE INSTANT CASE, THE PRESUMPTION LIE S AGAINST RAMESH MANIHAR GROUP, AND NOT AGAINST THE ASSESSEE. IN SUCH A CAS E, THE BURDEN LIES ON THE ASSESSING OFFICER BY LEADING CORROBORATIVE EVIDENCE THAT THE DATA/INFORMATION SO FOUND IN THE PEN DRIVES RELATES TO THE CASH LOAN TRANSACTIONS BELONGS TO THE ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 51 ASSESSEE AND THE SAME HAVE ACTUALLY BEEN UNDERTAKEN BY THE ASSESSEE THROUGH RAMESH MANIHAR GROUP AND THE CONTENTS THEREIN ARE F OUND AS CORRECT AND AUTHENTIC AND STAND DULY CORROBORATED BY INDEPENDEN T EVIDENCES. 76. THE ASSESSEE HAS ALSO CHALLENGED THE RELIANCE O N SUCH EXTRACTS AND PRINT OUTS OF THE EXCEL SHEETS STATING THAT THE AO HAS NO T COMPLIED WITH THE PROVISIONS OF SECTION 65A AND 65B OF THE EVIDENCE A CT, 1872 AND NO SATISFACTION HAS BEEN RECORDED BY THE AO THAT THE OUTPUT OF THE PEN DRIVES/COMPUTER RECORDS WERE ANALYSED ON AS IS BASIS BY THE DEPAR TMENT AND THERE WAS NO RISK OF THE DATA BEING TEMPERED BY ANYONE AND WHICH HAS BEEN RELIED UPON BY THE ASSESSING OFFICER. IN HIS SUBMISSIONS, THE LD PCIT/D/R SUBMITTED THAT THERE IS A WELL LAID DOWN PROCEDURE AND PROTOCOLS ARE STR ICTLY FOLLOWED BY THE DEPARTMENT REGARDING SEIZED DOCUMENTS AND IT IS UNL IKELY THAT THE SEARCH DATA CAN BE TEMPERED WITH BY ANY OFFICIALS OF THE REVENU E DEPARTMENT AND ONCE, THE INFORMATION HAS BEEN RECEIVED FROM ANOTHER ASSE SSING OFFICER, THERE IS A PRESUMPTION THAT SUCH DATA AND INFORMATION IS SHARE D ON AS IS BASIS AND THEREFORE, WHERE THERE IS NO BASIS FOR RAISING ANY SUSPICION IN THE MIND OF THE ASSESSING OFFICER, NO FURTHER ACTION HAS BEEN TAKEN REGARDING VERIFYING THE AUTHENCITY OF THE DATA SO RECEIVED AND RECORDING AN Y SATISFACTION IN THIS REGARD. IT WAS ACCORDINGLY SUBMITTED THAT IT IS MERELY AN A PPREHENSION ON THE PART OF THE ASSESSEE AND THE SAME CANNOT BE A BASIS FOR NOT RELYING ON THE DATA SO COLLECTED AND RECEIVED BY THE ASSESSING OFFICER AND WHICH FORMS PART OF THE ASSESSMENT RECORDS. 77. WE FIND THAT THOUGH EVIDENCE ACT IS NOT STRICTL Y APPLICABLE TO THE INCOME TAX PROCEEDINGS, HOWEVER THE GENERAL PRINCIPLES SO LAID DOWN THEREIN CAN BE APPLIED BY LEADING CERTAIN POSITIVE EVIDENCE WHICH CAN AUTHENTICATE THE DATA WHICH HAS CHANGED HANDS APPARENTLY FROM THE INVESTI GATION WING TO THE ASSESSING OFFICER OF THE SEARCHED PERSON AND THEN, FINALLY TO THE ASSESSING OFFICER WHO HAS PLACED RELIANCE ON THE SAME AND HAS PASSED THE IMPUGNED ORDER. IT MAY BE AN APPREHENSION ON PART OF THE AS SESSEE THAT THE DATA WHILE ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 52 SHARED/HANDED OVER TO THE ASSESSING OFFICER MIGHT H AVE BEEN EITHER MODIFIED, ALTERED OR TEMPERED WITH, HOWEVER, WHERE SUCH AN AP PREHENSION HAS BEEN RAISED BY THE ASSESSEE AND MORE SO, IT WOULD ALSO B E INTEREST OF REVENUE WHERE THERE IS HEAVY RELIANCE PLACED BY THE REVENUE ON SUCH DATA, SUCH APPREHENSION SO RAISED BY THE ASSESSEE NEEDS TO BE APPROPRIATELY ADDRESSED BY LEADING POSITIVE EVIDENCE AND RECORDING OF SATISFAC TION BY THE ASSESSING OFFICER WHICH WE FIND HAS NOT HAPPENED IN THE INSTANT CASE. 78. HAVING SAID THAT, LETS EXAMINE WHETHER DATA S O FOUND IN THE PEN DRIVES AND RECEIVED BY THE ASSESSING OFFICER STAND CORROBORATED BY THE SHRI RAMESH CHAND MAHESHWARI IN HIS STATEMENT RECORDED U NDER SECTION 132(4) AT THE TIME OF SEARCH CONDUCTED ON 27.01.2016. IN R EPLY TO QUESTION NO. 12, HE HAS STATED THAT THROUGH HIS TWO FIRMS, NAMELY AM ARNATH ASSOCIATES AND AMARNATH ENTERPRISES, LOAN FINANCING THROUGH CHEQUE /RTGS HAS BEEN UNDERTAKEN ON COMMISSION BASIS AND IN REPLY TO QUES TION NO. 15, HE HAS STATED THAT CASH LOAN FINANCING IS DONE JOINTLY WIT H MANMOHAN BAGLA IN THEIR PRIVATE CAPACITY AND HIS COMPANIES/FIRMS HAVE NO RE LATIONSHIP WITH SUCH CASH LOAN TRANSACTIONS. IN REPLY TO QUESTION NO. 16, HE HAS FURTHER STATED THAT WHATEVER AMOUNT WAS GIVEN AS CASH LOANS WAS HISS A ND MANMOHAN BANGLAS OWN MONEY WHICH WAS GIVEN ON INTEREST AND WHICH ON RECEIPT, IS FURTHER GIVEN ON INTEREST TO VARIOUS PARTIES. THEREAFTER, I N SUBSEQUENT QUESTIONS, HE HAS EXPLAINED SINCE HOW LONG THESE CASH LOAN TRANSA CTIONS HAVE BEEN UNDERTAKEN BY THEM AND HOW THE ACCOUNTS ARE MAINTAI NED WHICH HAS BEEN STATED BY HIM TO BE MAINTAINED ON COMPUTER, PEN DRI VES AND SLIPS WHICH REMAINS IN HIS POSSESSION. FURTHER, QUESTIONS NO. 3 0 AND 31 WERE ASKED SPECIFICALLY ABOUT THE PEN DRIVES AND THE DATA SO F OUND IN THE PEN DRIVES AND WE DEEM IT APPROPRIATE TO REPRODUCE THE SAME AS UND ER: IZU 30 RYKKH DS NKSJKU VKIDS DSFCU LS 18 ISU MKB ZOL FEYH GS TKS FD AS EXH-1 LS AS EXH.18 RD VAFDR DH XBZ GSA BU PEN DRIVES ESA DBZ EXCEL FILES TSLS FD MNKGJ.K DS RKSJ IJ A44XX.AS EXH.1 FILE NAME NOV JAGAT, ANNEX. AS EXH. 2 FILE NAME AT-UPT030-NOV FOR UPDATE O ANNEX. AS EXH.8 FILE NAME AX-UPTO 30- NOV FOR UPDATE IKBZ XBZ GSA MIJKSDR FY[KHR RHUKSA EXCEL FILES DS FIZAV VKMVL ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 53 MNKGJ.K DS RKSJ VKIDKS FN[KK, TK JGS GSA D`I;K BUES A VAFDR ENTRIES DKS FOLRKJ IWOZD LE>KB,\ MRKJ ESUSA MIJKSDR RHUKSA EXCEL QKBZYKSA DS FIZAV VKMVL NS[K FY, GSA BUESA NTZ IZFOF'B;KSA DH TKUDKJH ESA IWOZ ESA IWNS X, IZ-LA[; K 20]21]22]23]24]25 O 26 DS MRJ ESA IGYS GH CRK PQDK GWWAA ;G LHKH TRANSACTIOONS ,D GH IZD`FR DS GS VKSJ DSK YKSU DS YSU NSU LS LACAF/KR GS VKSJ BUESA VAFDR JKFK;KWA 1 000@& DS :I ESA GS TSLS 50 DK ERYC 50]000@& :I;S 200 DK ERYC 2]00]000@& :I;S GSA VR% ESJK TCKC MIJKSDR IZ- DS MRJKSA 20 LS 26 RD TSLK GH EKUK VKSJ LE>K TKOSAA VKSJ LHKH 18 PAN DRIVES ESA ,D GH IZDKJ GH ;KUH DSK YKSU DH IZFOF'V;KWA N TZ GSA IZU 31 VKIDS }KJK DSK YKSU DS YSU&NSU LS LACAF/K R LHKH NLRKOSTKSA ESA VAFDR NTZ FOFHKUU UKE FTUESA LS DQN DKSM HKK'KK ESA HKH GS] ; G CRK;K X;K GS FD ;G YKSX NKSVS&EKSVS FOSRK@;K O;KIKJH GSA BL LACA/K ESA VKI DKS CRK;K TKRK GS FD VKIDS OFFICE TKS FD 203, JRUKLKXJ] TKSGJH CKTKJ T;IQJ ESA FLFKR GS] OGKWA L S LOSZ DH DK;ZOKGH DS NKSJKU FJLSIKFU'V RECEPTIONIST DS DEI;WVJ LS ,D EXCEL QKBZY FEYH GS FTLESA FD DBZ O;KIKFJ;KSA DS UKE O IRS FY[KS X, GSA ;G QKBZY COPY OF NEW UPDATE 2015 NEHA DS UKE LS FEYH GSA BL QKBZY ESA FY[KS GQ, UKE VKSJ VKIDS DSK YKSU LS LACAF/KR CJKEN NLRKOSTKSA ANNEX.AS.EXH. 1 LS 18 VKSJ EXH. 20 BR;KFN ESA FY[KS GQ, UKEKSA LS FEYRS GS VKSJ ,SLK YXRK GS FD ,D GH O;FDR DK UKE LHKH DSK YKSU LS LACAF/KR NLRKOSTKSA ESA NTZ GSA MNKGJ.K DS RKSJ IJ RECEPTIONIST DEI;WVJ DH QKBZY CASH LOAN LS LACAF/KR NLRKOSTKSA ESA UKE -------------------------------------------------- ---------------- --------------------------------- ----------------------------- 1 RAJESH TAMBI R TAMBI C/0 KL TAMBI & CO., 1839, 12, GANGOUR KA RASTA, JOHARI BAZAR, JAIPUR 2 KAMAL CHAND SURANA K SURANA C/O SURANA JEWELLERS, B-7E, SURANA ENCLAVE, RAM SINGH ROAD, JAIPUR (3) RAJESH DHADDA, R. DHADDA C/O R.K. JEWELLERS, 304, RATNA SAGAR MSB KA RASTA, JOHARI BAZAR, JAIPUR. BLH RJG LS VKIDKS DBZ MNKGJ.K FN[KK, TK JGS GSA BL CKJS ESA D`I;K VIUH FVII.KH NHFT,\ ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 54 MRKJ 31 ;G ,D EGT BRSQKD GSA RECEPTIONIST DS COMPUTER DH QKBZY ESA VAFDR UKE O IRS GREETING CARD, INVITATION CARD OXSJG HKSTUS DS FY, FY[KS X, GSA BUDK O;KIKJ O ACCOUNT LS DKSBZ LACA/K UGH GSA 79. AS NOTED ABOVE, IN REPLY TO Q. NO. 30 & 31, HE STATED THAT ALL THESE TRANSACTIONS FOUND IN THE PEN DRIVES ARE OF SIMILAR NATURE AND PERTAINS TO CASH LOAN TRANSACTIONS. FURTHER, REGARDING NAMES I N CODE WORD AND NAMES AS FOUND IN VARIOUS PEN DRIVES/EXCEL FILES FOUND IN THE RECEPTIONISTS COMPUTER, HE HAS STATED THAT THE NAME AND ADDRESS S O FOUND IN EXCEL FILES IN THE RECEPTIONIST COMPUTER WAS PREPARED FOR THE PURP OSE OF SENDING GREETINGS/INVITATION CARDS AND HAS NO LINKAGE WITH THE ACCOUNTS AND BUSINESS DEALING. FINALLY, IN REPLY TO Q. NO. 36, WE FIND T HAT HE HAS PUT FORTH HIS WILLINGNESS TO SURRENDER THE UNDISCLOSED INVESTMENT IN THE FORM OF CASH LOANS AND ALSO THE INCIDENTAL INTEREST INCOME AS PA RT OF HIS INCOME. WE THEREFORE FIND THAT IN HIS STATEMENT RECORDED U/S 1 32(4), SHRI RAMESH CHAND MAHESHWARI HAS TALKED ABOUT LOAN FINANCING THROUGH FORMAL BANKING CHANNELS AND LOAN FINANCING IN FORM OF CASH. AS FA R AS LOAN FINANCING IN CASH IS CONCERNED WHICH IS UNDER EXAMINATION BEFORE US, THE INVESTIGATION OFFICER HAS ASKED HIM SERIES OF QUESTIONS AND CONFRONTED HI M WITH THE PEN DRIVES SO SEIZED DURING THE COURSE OF SEARCH AND SHRI RAMESH CHAND MAHESHWARI HAS STATED CLEARLY AND CONSISTENTLY THAT LOAN FINANCING HAS BEEN DONE JOINTLY WITH MANMOHAN BANGLA IN THEIR PERSONAL CAPACITY WHERE TH EIR OWN MONEY IS LENT ON INTEREST TO VARIOUS PARTIES FROM TIME TO TIME AN D HAS EXPLAINED THE MODALITIES OF SUCH CASH FINANCING AND HOW THE ACCOU NTS THEREOF ARE MAINTAINED IN COMPUTERS AND PEN DRIVES. THEREFORE, WE ARE UNABLE TO UNDERSTAND AS TO HOW THE ASSESSING OFFICER HAS REAC HED TO A CONCLUSION THAT BASIS SUCH STATEMENT RECORDED U/S 132(4), WHICH HAS ALSO BEEN REPRODUCED IN THE ASSESSMENT ORDER AND RELIED UPON BY HIM, THA T SHRI RAMESH CHAND MAHESHWARI AND HIS PARTNER SHRI MANMOHAN BAGLA WERE INVOLVED IN CASH LOAN TRANSACTIONS WHERE THE AMOUNTS WERE TAKEN IN C ASH FROM THE LENDERS AND THE SAME WAS ADVANCED TO THE BORROWERS IN CASH AND HAVE EARNED COMMISSION INCOME ON THESE TRANSACTIONS, AND HAS RE CORDED A CONSEQUENTIAL ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 55 FINDING THAT SINCE NAME OF PCK IS FOUND IN THE EX CEL SHEETS, IT REPRESENT THE ASSESSEE ONLY AND THE ASSESSEE ALSO MADE HIS TR ANSACTIONS OF LENDING UNACCOUNTED MONEY THROUGH THE SAID GROUP AND EARNED INTEREST INCOME THEREON. WE THEREFORE FIND THAT THERE IS A CLEAR DI SCONNECT BETWEEN THE FINDINGS OF THE AO AND THE STATEMENT OF RAMESH CHAN D MAHESHWARI RECORDED ON OATH U/S 132(4) OF THE ACT, AND DATA SO FOUND IN THE PEN DRIVES WHICH IS CLAIMED BY THE AO AS RELATING TO CASH LOAN FINANCING BY THE ASSESSEE THROUGH RAMESH MANIHAR CANNOT BE HELD TO B E CORROBORATED BY THE STATEMENT OF SHRI RAMESH CHAND MAHESHWARI RECORDED UNDER SECTION 132(4) OF THE ACT. 80. NOW, COMING TO THE ANOTHER STATEMENT OF SHRI RA MESH CHAND MAHESHWARI RECORDED UNDER SECTION 131 ON 8.11.2017 WHICH HAS BEEN RELIED UPON BY THE ASSESSING OFFICER AND WE REFER TO RESPO NSE OF SHRI RAMESH CHAND MAHESHWARI IN RESPONSE TO VARIOUS QUESTIONS. WE FIND THAT IN THIS STATEMENT RECORDED U/S 131 ON 8.11.2017, AFTER A GA P OF ALMOST 21 MONTHS FROM THE EARLIER STATEMENT WHICH WAS RECORDED U/S 1 32(4) ON 27.01.2016, WHEN SHRI RAMESH CHAND MAHESHWARI WAS CONFRONTED WITH HIS EARLIER RESPONSE TO QUESTION NO. 15 IN STATEMENT RECORDED U /S 132(4), THERE HAS BEEN A CHANGE IN HIS STAND WHERE HE STATED THAT CAS H LOAN FINANCING IS UNDERTAKEN IN THEIR PERSONAL CAPACITY WHERE THEY AC TED AS A MEDIATOR/FACILITATOR. THIS IS UNLIKE HIS EARLIER S TATEMENT WHERE HE HAD STATED IN RESPONSE TO QUESTION NO. 15 THAT CASH LOAN FINAN CING IS DONE JOINTLY WITH MANMOHAN BAGLA IN THEIR PERSONAL CAPACITY AND IN RE PLY TO QUESTION NO. 16, HE HAS STATED THAT WHATEVER AMOUNT WAS GIVEN AS CAS H LOANS WAS HIS AND MANMOHAN BANGLAS OWN MONEY WHICH IS GIVEN ON INTER EST AND WHICH ON RECEIPT, IS AGAIN GIVEN ON INTEREST. WE THEREFORE FIND THAT THERE HAS BEEN A CHANGE IN STAND OF SHRI RAMESH CHAND MAHESHWARI WHE RE EVEN IN RESPECT OF CASH LOAN FINANCING, HE HAS STATED THAT HE ACTS AS A MEDIATOR AND FACILITATOR BETWEEN THE LENDERS AND BORROWERS AND THUS EARNS CO MMISSION INCOME INSTEAD OF INTEREST INCOME ON AMOUNT ADVANCED IN TH EIR PERSONAL CAPACITY AS ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 56 STATED EARLIER. BASIS SUCH STATEMENT AND FILING OF PETITION BEFORE THE SETTLEMENT COMMISSION WHERE THESE CASH LOAN FINANCI NG TRANSACTIONS HAVE BEEN CLAIMED AND SHOWN AS TRANSACTIONS UNDERTAKEN B Y SHRI RAMESH CHAND MAHESHWARI ON COMMISSION BASIS, THE AO HAS TAKEN CO GNIZANCE OF THE SAME AND HELD THAT SINCE NAME OF PCK IS FOUND IN THE E XCEL SHEETS, IT REPRESENT THE ASSESSEE ONLY AND THE ASSESSEE ALSO MADE HIS TR ANSACTIONS OF LENDING UNACCOUNTED MONEY THROUGH THE SAID GROUP AND EARNED INTEREST INCOME THEREON. WE THEREFORE FIND THAT THERE IS A TOTAL DI SCONNECT AND VARIANCE BETWEEN THE TWO STATEMENTS AND CHANGE OF STAND OF S HRI RAMESH CHAND MAHESHWARI IN HIS STATEMENT RECORDED U/S 132(4) AND THE STATEMENT SUBSEQUENTLY RECORDED U/S 131 OF THE ACT AFTER A GA P OF ALMOST 21 MONTHS AND THE ASSESSING OFFICER IN THE INSTANT CASE HAS E FFECTIVELY PLACED RELIANCE ON THE SUBSEQUENT STATEMENT RECORDED U/S 131 IGNORI NG THE EARLIER STATEMENT RECORDED U/S 132(4) OF THE ACT. 81. WITHOUT GETTING INTO THE BACKGROUND AND BASIS O F SUCH CHANGE IN STAND OF SHRI RAMESH CHAND MAHESHWARI WHICH IS A MATTER F OR REVENUE AND APPROPRIATE AUTHORITIES TO PONDER AND EXAMINE, AND IS IN ANY CASE BEYOND THE SCOPE OF IMPUGNED MATTER UNDER CONSIDERATION, T HE QUESTION THAT ARISES FOR CONSIDERATION IS WHETHER THE ASSESSING OFFICER CAN BE HELD JUSTIFIED IN PLACING RELIANCE ON SUCH SHIFTING STAND OF SHRI RAM ESH CHAND MAHESHWARI IN HIS OWN TWO STATEMENTS WHICH PUT A QUESTION MARK ON RELIABILITY OF HIS STATEMENTS AND CAN IT BE SAID THAT THE DATA SO FOUN D IN THE PEN DRIVES RELATES TO CASH LOAN FINANCING OF VARIOUS LENDERS S TAND CORROBORATED BY THE STATEMENT OF SHRI RAMESH CHAND MAHESHWARI RECORDED UNDER SECTION 131 OF THE ACT. THE ASSESSEE HAS ALSO CHALLENGED THE SAME STATING THAT SUCH STATEMENT WAS NEVER CONFRONTED TO HIM DURING THE CO URSE OF REASSESSMENT PROCEEDINGS AND EVEN AN OPPORTUNITY OF CROSS-EXAMIN ATION OF SHRI RAMESH CHAND MAHESHWARI SO DEMANDED WAS NOT PROVIDED TO HI M. ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 57 82. TO OUR MIND, IN THE FACTS OF THE PRESENT CASE, WHERE THERE IS SHIFTING STAND OF SHRI RAMESH CHAND MAHESHWARI IN HIS TWO ST ATEMENTS AND THERE IS HEAVY RELIANCE PLACED BY THE REVENUE ON THE LATTER STATEMENT RECORDED U/S 131, IT IS IMPERATIVE THAT THE ASSESSEE BE ALLOWED AN OPPORTUNITY TO SEEK A COPY OF THE SAID STATEMENT AND FILE HIS OBJECTIONS AND S ECONDLY AND EQUALLY IMPORTANT, AN OPPORTUNITY TO CROSS EXAMINE SHRI RAM ESH CHAND MAHESHWARI WHICH HAS BEEN RECOGNIZED TIME AND TIME BY THE COUR TS AS AN IMPORTANT FACET THROUGH WHICH THE PRINCIPLE OF NATURAL JUSTICE CAN BE IMPLEMENTED AND IS DULY SUPPORTED BY VARIOUS AUTHORITIES QUOTED AT THE BAR. IN ABSENCE OF SUCH AN OPPORTUNITY, NO RELIANCE CAN BE PLACED ON SUCH STAT EMENT MORE SO WHERE IN HIS STATEMENT, SHRI RAMESH CHAND MAHESHWARI DID NOT CAT EGORICALLY REFERRED THE NAME OF THE ASSESSEE OR THAT THE ASSESSEE PROVIDED CASH LOANS THROUGH HIS GROUP TO DIFFERENT PERSONS. THEREFORE, THE FINDING OF THE AO THAT DATA SO FOUND IN THE PEN DRIVES RELATES TO CASH LOAN FINANC ING BY THE ASSESSEE THROUGH RAMESH CHAND MAHESHWARI STAND CORROBORATED BY THE STATEMENT OF SHRI RAMESH CHAND MAHESHWARI RECORDED UNDER SECTION 131 OF THE ACT CANNOT BE ACCEPTED. 83. FURTHER, T HE LD AR HAS STATED AT THE BAR THAT EVEN BEFORE THE SETTLEMENT COMMISSION, SHRI RAMESH CHAND MAHESHWARI HAS NOT GI VEN ANY NAMES AND IDENTITY OF THE LENDERS AND BORROWERS AND ANY ADMIS SION OF THE RAMESH CHAND MAHESHWARI BEFORE THE SETTLEMENT COMMISSION THEREFO RE DOESNT ESTABLISHES THAT PCK IS NO ONE ELSE BUT THE ASSESSEE, SHRI PRAK ASH CHAND KOTHARI. IN VIEW OF WHAT WE HAVE FOUND AND STATED EARLIER, WE ARE NO T PERSUADED BY THE FINDINGS OF THE ASSESSING OFFICER THAT MERELY BECAU SE SHRI RAMESH CHAND MAHESHWARI AND HIS GROUP HAS FILED AN APPLICATION B EFORE THE SETTLEMENT COMMISSION WHERE THEY HAVE SURRENDERED THEIR COMMIS SION INCOME ON SUCH UNRECORDED AND UNACCOUNTED CASH LOAN FINANCING TRAN SACTIONS AND DUE TAXES HAVE BEEN PAID, THE SAME SHOULD BY DEFAULT FORM THE BASIS FOR DETERMINING THE NATURE AND CHARACTER OF TRANSACTIONS BY WAY OF CASH LOANS IN THE HANDS OF THE ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 58 ASSESSEE ROUTED THROUGH RAMESH MANIHAR GROUP AS THE SAID ADMISSION IS A UNILATERAL ADMISSION ON PART OF RAMESH CHAND MAHESH WARI AND THE ASSESSEE CANNOT BE COMPELLED TO ACCEPT THE SAME IN ABSENCE O F ANY CLINCHING AND IRREFUTABLE EVIDENCE THAT THE MONEY HAS INFACT BEEN PAID BY THE ASSESSEE AND ROUTED THROUGH RAMESH MANIHAR GROUP FOR ONWARD LEND ING AND WITHOUT PROVIDING AN OPPORTUNITY OF CROSS-EXAMINATION. THE ASSESSEE IS NOT PRIVY TO THE APPLICATION FILED BEFORE THE SETTLEMENT COMISSION A ND PROCEEDINGS BEFORE THE SETTLEMENT COMMISSION AND THEREFORE, THE FINDINGS O F THE SETTLEMENT COMMISSION CANNOT BE SAID TO BIND THE ASSESSEE AND FOR THAT MATTER, THE ASSESSING OFFICER WHO HAS TO RECORD HIS OWN INDEPEN DENT FINDINGS CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE. WE THEREFORE AGREE WITH THE FINDINGS OF THE LD CIT(A) THAT MERE ADMISSION BY ON E PERSON BEFORE THE SETTLEMENT COMMISISON CANNOT BIND THE ANOTHER PERSO N IN ABSENCE OF ANY NEXUS BETWEEN THE PERSON ADMITTING AND THE OTHER PE RSON. 84. WE FIND THAT SIMILAR VIEW HAS BEEN TAKEN BY THE COORDINATE MUMBAI BENCHES IN CASE OF ANIL JAGGI VS ACIT ( SUPRA). IN THAT CASE, PAYMENT OF ON- MONEY BY ASSESSEE, ANIL JAGGI, WAS NOTICED IN THE C OURSE OF SEARCH IN THE HIRANANDANI GROUP IN RESPECT OF PURCHASE OF CERTAIN PROPERTIES. THE COORDINATE BENCH AFTER APPRECIATING THE ENTIRETY OF FACTS AND CIRCUMSTANCES HELD THAT THE FINDINGS OF THE ASSESSING OFFICER THA T ASSESSEE HAD PAID 'ON MONEY' FOR PURCHASE OF PROPERTY UNDER CONSIDERATION IS BASED ON THE CONTENTS OF THE PEN DRIVE WHICH WAS SEIZED FROM THE RESIDENCE OF AN EX- EMPLOYEE OF HIRANANDANI GROUP AND THE INFORMATION A S EMERGES FROM THE PRINT OUT OF THE PEN DRIVE FALLS SHORT OF MATERIAL FACTS AND REMAIN UNCORROBORATED AND MERE ADMISSION OF THE AMOUNTS RE CORDED IN THE PEN DRIVE AS THE ADDITIONAL INCOME BY SH. NIRANJAN HIRA NANDANI IN HIS APPLICATION BEFORE THE SETTLEMENT COMMISSION FALLING SHORT OF A NY SUCH MATERIAL WHICH WOULD INEXTRICABLY EVIDENCE PAYMENT OF ON MONEY B Y THE ASSESSEE WOULD NOT LEAD TO DRAWING OF ADVERSE INFERENCE AS REGARDS THE INVESTMENT MADE BY ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 59 THE ASSESSEE FOR PURCHASE OF THE PROPERTY UNDER CON SIDERATION AND ADDITIONS MADE BY LOWER AUTHORITIES WERE DELETED AND THE RELE VANT FINDINGS OF THE COORDINATE BENCH READ AS UNDER: 14. WE SHALL NOW TAKE UP THE CASE OF THE ASSESSEE O N MERITS AND DELIBERATE ON THE VALIDITY OF THE ADDITION OF RS. 2 .23 CRORE MADE BY THE A.O ON THE GROUND THAT THE ASSESSEE HAD MADE A PAYM ENT OF 'ON MONEY' FOR PURCHASE OF FLATS FROM M/S LAKEVIEW DEVE LOPERS. WE HAVE PERUSED THE FACTS OF THE CASE AND THE MATERIAL AVAI LABLE ON RECORD ON THE BASIS OF WHICH THE ADDITION OF RS. 2.23 CRORE H AD BEEN MADE IN THE HANDS OF THE ASSESSEE. WE HAVE FURTHER DELIBERATED ON THE MATERIAL PLACED ON RECORD AND THE CONTENTIONS OF THE LD. A.R TO DRIVE HOME HIS CONTENTION THAT NO PAYMENT OF ANY 'ON MONEY' WAS MA DE BY THE ASSESSEE FOR PURCHASE OF FLATS FROM M/S LAKEVIEW DE VELOPERS. WE FIND THAT THE GENESIS OF THE CONCLUSION OF THE A.O THAT THE ASSESSEE HAD PAID 'ON MONEY' OF RS. 2.23 CRORE FOR PURCHASE OF P ROPERTY UNDER CONSIDERATION IS BASED ON THE CONTENTS OF THE PEN D RIVE WHICH WAS SEIZED FROM THE RESIDENCE OF AN EX-EMPLOYEE OF HIRA NANDANI GROUP. WE HAVE PERUSED THE PRINT OUT OF THE PEN DRIVE (PAG E 42 OF APB) AND FIND OURSELVES TO BE IN AGREEMENT WITH THE VIEW OF THE LD A.R THAT THOUGH AGAINST THE HEADING 'AMOUNT OF ON MONEY PAID ' THE NAME, ADDRESS AND PAN NO. OF THE ASSESSEE IS MENTIONED AL ONGWITH THE DETAILS OF THE PROPERTY PURCHASED BY HIM, VIZ. FLAT NO.2501 IN 'SOMERSET' BUILDING FROM LAKEVIEW DEVELOPERS (A HIR ANANDANI GROUP CONCERN), HOWEVER, THE SAME WOULD NOT CONCLUSIVELY PROVE SUPPRESSION OF INVESTMENT AND PAYMENT OF 'ON MONEY' BY THE ASSESSEE FOR PURCHASE OF THE PROPERTY UNDER CONSIDE RATION. WE FIND THAT THE INFORMATION AS EMERGES FROM THE PRINT OUT OF THE PEN DRIVE FALLS SHORT OF CERTAIN MATERIAL FACTS, VIZ. DATE AN D MODE OF RECEIPT OF 'ON MONEY', WHO HAD PAID THE MONEY, TO WHOM THE MON EY WAS PAID, DATE OF AGREEMENT AND WHO HAD PREPARED THE DETAILS, AS A RESULT ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 60 WHEREOF THE ADVERSE INFERENCES AS REGARDS PAYMENT O F 'ON MONEY' BY THE ASSESSEE FOR PURCHASE OF THE PROPERTY UNDER CON SIDERATION REMAIN UNCORROBORATED. WE FURTHER FIND THAT WHAT WAS THE S OURCE FROM WHERE THE INFORMATION WAS RECEIVED IN THE PEN DRIVE ALSO REMAINS A MYSTERY TILL DATE. WE FIND THAT SH. NIRANJAN HIRANANDANI IN THE COURSE OF HIS CROSS-EXAMINATION HAD CLEARLY STATED THAT NEITHER H E WAS AWARE OF THE PERSON WHO HAD MADE THE ENTRY IN THE PEN DRIVE, NOR HAD WITH HIM ANY EVIDENCE THAT THE ASSESSEE HAD PAID ANY CASH TO WARDS PURCHASE OF FLAT. WE HAVE DELIBERATED ON THE FACT THAT SH. NIRA NJAN HIRANANDANI IN HIS STATEMENT RECORDED ON OATH IN THE COURSE OF THE SEARCH & SEIZURE PROCEEDINGS HAD CONFIRMED THAT THE AMOUNTS AGGREGAT ING TO RS. 475.60 CRORE RECORDED IN THE PEN DRIVE WERE THE ON- MONEY RECEIVED ON SALE OF FLATS, WHICH WAS OFFERED AS ADDITIONAL INCO ME UNDER SEC. 132(4) AND THEREAFTER OFFERED AS SUCH FOR TAX IN THE PETIT ION FILED BEFORE THE SETTLEMENT COMMISSION. WE ARE OF THE CONSIDERED VIE W THAT THERE IS SUBSTANTIAL FORCE IN THE CONTENTION OF THE LD. A.R THAT MERE ADMISSION OF THE AMOUNTS RECORDED IN THE PEN DRIVE AS THE ADD ITIONAL INCOME BY SH. NIRANJAN HIRANANDANI, FALLING SHORT OF ANY SUCH MATERIAL WHICH WOULD INEXTRICABLY EVIDENCE PAYMENT OF 'ON MONEY' B Y THE ASSESSEE WOULD NOT LEAD TO DRAWING OF ADVERSE INFERENCES AS REGARDS THE INVESTMENT MADE BY THE ASSESSEE FOR PURCHASE OF THE PROPERTY UNDER CONSIDERATION. WE RATHER HOLD A STRONG CONVICTION T HAT THE VERY FACT THAT THE CONSIDERATION PAID BY THE ASSESSEE FOR PUR CHASE OF THE PROPERTY UNDER CONSIDERATION WHEN PITTED AGAINST TH E 'MARKET VALUE' FIXED BY THE STAMP VALUATION AUTHORITY IS FOUND TO BE SUBSTANTIALLY HIGH, FURTHER FORTIFIES THE VERACITY OF THE CLAIM O F THE ASSESSEE THAT HIS INVESTMENT MADE TOWARDS PURCHASE OF THE PROPERTY UN DER CONSIDERATION WAS WELL IN ORDER. WE ARE OF THE CONS IDERED VIEW THAT THOUGH THE MATERIAL ACTED UPON BY THE DEPARTMENT FO R DRAWING OF ADVERSE INFERENCES AS REGARDS PAYMENT OF 'ON MONEY' BY THE ASSESSEE FORMED A STRONG BASIS FOR DOUBTING THE INVESTMENT M ADE BY THE ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 61 ASSESSEE FOR PURCHASE OF THE PROPERTY UNDER CONSIDE RATION, BUT THE SAME FALLING SHORT OF CLINCHING MATERIAL WHICH WOUL D HAVE IRREFUTABLY EVIDENCED THE SAID FACT, THUS, DOES NOT INSPIRE MUC H OF CONFIDENCE AS REGARDS THE WAY THEY HAVE BEEN CONSTRUED BY THE LOW ER AUTHORITIES FOR DRAWING OF ADVERSE INFERENCES IN THE HANDS OF THE A SSESSEE. WE THUS ARE OF A STRONG CONVICTION THAT AS THE MATERIAL REL IED UPON BY THE LOWER AUTHORITIES DOES NOT CORROBORATE THE ADVERSE INFERE NCES DRAWN AS REGARDS THE INVESTMENT MADE BY THE ASSESSEE, THEREF ORE, THE SAME CANNOT CONCLUSIVELY FORM A BASIS FOR CONCLUDING THA T THE ASSESSEE HAD MADE PAYMENT OF 'ON MONEY' FOR PURCHASE OF THE PROP ERTY UNDER CONSIDERATION. WE THUS IN THE BACKDROP OF OUR AFORE SAID OBSERVATIONS ARE OF THE CONSIDERED VIEW THAT THE ADVERSE INFEREN CES DRAWN BY THE A.O AS REGARDS PAYMENT OF 'ON MONEY' OF RS. 2.23 CR ORE BY THE ASSESSEE FOR PURCHASE OF FLAT NO. 2501 FROM M/S LAK EVIEW DEVELOPERS ARE BASED ON OF PREMATURE OBSERVATIONS OF THE A.O, WHICH IN THE ABSENCE OF ANY CLINCHING EVIDENCE CANNOT BE SUSTAIN ED. WE THUS ARE UNABLE TO SUBSCRIBE TO THE VIEW OF THE LOWER AUTHOR ITIES AND SET ASIDE THE ORDER OF THE CIT (A) SUSTAINING THE ADDITION OF RS. 2.23 CRORES IN THE HANDS OF THE ASSESSEE. 85. WE THEREFORE FIND THAT THE ASSESSING OFFICER H AS MERELY RELIED UPON EXTRACTS OF CERTAIN UNCORROBORATED EXCEL SHEETS, FO UND DURING THE COURSE OF SEARCH IN CASE OF RAMESH MANIHAR GROUP. SUCH EXCELS HEETS DO NOT POINT OUT TO THE FACT OF ASSESSEE HAVING GIVEN LOANS, IN CASH, T O DIFFERENT PERSONS THROUGH RAMESH MANIHAR GROUP. NOTHING CONCRETE IS DISCERNI BLE FROM THESE EXCEL SHEETS. THE ASSESSING OFFICER HAS FAILED TO CORROBO RATE THE EXCEL SHEETS WITH INDEPENDENT EVIDENCES. UNLESS SUCH CORROBORATIVE EV IDENCES WERE BROUGHT ON RECORD, THE PRESENT ADDITIONS ARE NOT JUSTIFIED. NOWHERE IN THE EXCELSHEETS FOUND DURING THE COURSE OF SEARCH IN CASE OF RAMESH MANIHAR GROUP AND RELIED UPON BY THE AO, IT COULD BE ESTABLISHED THAT PCK AS MENTIONED IN THOSE DOCUMENTS STAND FOR THE ASSESSEE ONLY. NO TRAIL OF DOCUMENTS OR CORROBORATIVE ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 62 EVIDENCES COULD BE ESTABLISHED IN THIS REGARD. THE EXTRACTS OF THE EXCEL SHEETS ON WHICH RELIANCE HAD BEEN PLACED WERE FOUND FROM T HE COMPUTERS OF EMPLOYEES OF SHRI RAMESH MANIHAR. THOSE EMPLOYEES W ERE NEVER EXAMINED INDEPENDENTLY BY THE AO TO FIND OUT WHETHER PCK A S MENTIONED IN SUCH EXCEL SHEETS REPRESENT ASSESSEE ONLY. THERE IS NO POSITIV E CONFIRMATION OR CONCRETE EVIDENCE AVAILABLE WITH THE AO, IN THE FORM OF ACCE PTANCE BY THE PARTIES ALLEGED TO HAVE RECEIVED LOANS THAT THEY HAVE ACTUA LLY RECEIVED LOANS, IN CASH, WHICH WAS PROVIDED BY THE ASSESSEE THROUGH RAMESH M ANIHAR GROUP. LEAVING ASIDE A POSITIVE CONFIRMATION FROM THE RECIPIENTS O F THE LOAN, THE AO HAS NOT BEEN ABLE TO ESTABLISH EVEN THE IDENTITY OF THE PER SONS ALLEGED TO HAVE RECEIVED LOANS FROM THE ASSESSEE. THERE IS SHIFTING STAND OF SHRI RAMESH CHAND MAHESHWARI IN HIS TWO STATEMENTS RECORDED U/S 132(4 ) AND U/S 131 OF THE ACT. WE FIND THAT IN HIS LATTER STATEMENT RECORDED U/S 1 31, HE HAS STATED THAT CASH LOAN FINANCING IS UNDERTAKEN IN THEIR PERSONAL CAPACITY WHERE THEY ACTED AS A MEDIATOR/FACILITATOR. THIS IS UNLIKE HIS EARLIER STATEMENT U/S 132(4) WHERE HE HAD STATED THAT CASH LOAN FINANCING IS DON E JOINTLY WITH MANMOHAN BAGLA IN THEIR PERSONAL CAPACITY AND WHATEVER AMOUN T WAS GIVEN AS CASH LOANS WAS HIS AND MANMOHAN BANGLAS OWN MONEY WHICH IS GIVEN ON INTEREST AND WHICH ON RECEIPT, IS AGAIN GIVEN ON INTEREST. WE THEREFORE FIND THAT THERE HAS BEEN A CHANGE IN STAND OF SHRI RAMESH CHA ND MAHESHWARI WHERE EVEN IN RESPECT OF CASH LOAN FINANCING, HE HAS STAT ED THAT HE ACTS AS A MEDIATOR AND FACILITATOR BETWEEN THE LENDERS AND BO RROWERS AND THUS EARNS COMMISSION INCOME INSTEAD OF INTEREST INCOME ON AMO UNT ADVANCED IN THEIR PERSONAL CAPACITY AS STATED EARLIER. EVEN NO QUESTION WAS EVEN PUT TO SHRI RAMESH CHAND MAHESHWARI AS TO WHAT PCK STAND FOR AND THERE IS NO RESPONSE BY HIM EITHER IN HIS ENTIRE STATEMENT WHIC H SUGGESTS THAT THE ASSESSEE HAS ADVANCED CASH LOAN THROUGH HIM. THEREF ORE, THE DATA SO FOUND IN THE EXCEL SHEETS DOESNT STAND CORROBORATED BY HIS STATEMENTS AS WELL. EVEN WHERE THE AO WISHES TO PLACE RELIANCE ON SUCH STATE MENT, NO OPPORTUNITY OF CROSS EXAMINING SHRI RAMESH CHAND MAHESHWARI WAS PR OVIDED TO THE ASSESSEE INSPITE OF SPECIFIC REQUEST MADE BY THE AS SESSEE DURING THE COURSE ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 63 OF ASSESSMENT PROCEEDINGS. THE LD CIT(A) HAS RIGHTLY HELD THAT RELYING UPON THE STATEMENT AND NOT PROVIDING CROSS EXAMINATION T O FIND OUT ANY INVOLVEMENT OF THE PERSON AFFECTED BY SUCH STATEMENT IS A GROSS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE WHICH RENDERS SUCH RELIANCE A NULLI TY AND IF SUCH STATEMENT IS DISCARDED, THERE REMAIN NO EVIDENCE TO HOLD THAT TH E APPELLANT HAS GIVEN ANY SUCH ADVANCE TO THE TUNE OF RS. 25 CRORES. MERELY E XTRACTS OF EXCEL SHEET DO NOT PROVIDE ANY EVIDENCE OF THE ALLEGATION MADE BY THE AO AGAINST THE ASSESSEE. THUS, MERE FACT THAT THERE WERE CERTAIN ENTRIES FOUND FROM RECORD OF THIRD PARTY IS NOT SUFFICIENT TO MAKE ADDITION ON T HE GROUND THAT ASSESSEE HAD MADE UNEXPLAINED INVESTMENTS. THE LD CIT(A) HAS RIG HTLY HELD THAT THOUGH COGNIZANCE MAY BE TAKEN IN RESPECT OF ENTRIES BY TH IRD-PARTY IN THE ASSESSMENT OF OTHER PERSON SO AS TO INITIATE INQUIRY FOR ASSES SMENT, YET WHEN THERE IS NO FINDING THAT SUCH ENTRIES ARE IN FACT PERTAINING TO SUCH THIRD PERSON ONLY WHICH SHOULD BE EMANATING FROM THE ENTRIES ITSELF OR FROM THE PERSON WHO HAS RECORDED SUCH ENTRY, NO COGNIZANCE CAN BE TAKEN SO AS TO FASTEN TAX LIABILITY ON SUCH THIRD PERSON. 86. IN THIS REGARD, WE FIND THAT UNDER SIMILAR FACT PATTERN, COORDINATE BENCHES OF THE TRIBUNAL HAVE TAKEN A SIMILAR VIEW A ND REFERENCE CAN BE DRAWN TO DECISION OF THE COORDINATE MUMBAI BENCHES IN CASE OF KATRINA ROSEMARY TURCOTTE (SUPRA). IN THIS CASE, ON THE BASIS OF A PRINT OUT TAKEN FROM THE COMPUTER BACKUP OF MS. SANDHYA RAMCHANDRA , ASSESSEES MANAGER AND ASSESSEES AGENT MATRIX INDIA, IT WAS CONCLUDED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAS RECEIVED AN AMOUNT OF RS. 2,5 0,000 IN CASH FOR APPEARING AS A HOST AT AN ICC EVENT IN SIDNEY. THE COORDINATE BENCH DELETED THE ADDITIONS HOLDING THAT THE ADDITION WAS MADE ON THE BASIS OF A PRINT OUT TAKEN FROM THE COMPUTER OF A THIRD PARTY WHO HAPPENED TO BE AN EMPLOYEE OF MATRIX AND THERE ARE NO OTHER CORROBORATIVE EVIDENCE BROUG HT ON RECORD TO PROVE THE FACT THAT THE PAYMENT MENTIONED IN THE SEIZED MATER IAL WAS ACTUALLY RECEIVED BY THE ASSESSEE AND RELEVANT FINDINGS READ AS UNDER : ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 64 8. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. UNDISPUTEDLY, ON THE BASIS OF A PRINT OU T TAKEN FROM THE COMPUTER BACKUP OF MS. SANDHYA RAMCHANDRA, IT WAS CONCLUDED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAS RECEIVED AN AMOUNT OF RS. 2,50,000 IN CASH FOR APPEARING AS A HOST AT AN ICC EVENT IN SIDNEY. IT IS VERY MUCH CLEAR THAT APART FROM THIS DOCUMENT, THER E WAS NO OTHER EVIDENCE BEFORE THE ASSESSING OFFICER TO INDICATE T HAT THE ASSESSEE HAS RECEIVED CASH AMOUNT IN QUESTION. IT IS A FACT THAT IN COURSE OF SEARCH AS WELL AS POST SEARCH PROCEEDINGS, THE ASSESSEE WAS C ONFRONTED WITH SEIZED MATERIAL AND THE ASSESSEE CATEGORICALLY STAT ED TO HAVE NEITHER APPEARED AS A HOST IN THE SAID EVENT NOR RECEIVED A NY CASH FROM MATRIX. IN FACT, AN AFFIDAVIT WAS ALSO FILED ON BEHALF OF M ATRIX CATEGORICALLY STATING THAT NO SUCH CASH PAYMENT OF RS. 2,50,000 WAS MADE TO THE ASSESSEE. THUS, FROM THE AFORESAID FACTS, IT IS TO BE SEEN TH AT THE ADDITION WAS MADE ON THE BASIS OF A PRINT OUT TAKEN FROM THE COM PUTER OF A THIRD PARTY WHO HAPPENED TO BE AN EMPLOYEE OF MATRIX AND THERE ARE NO OTHER CORROBORATIVE EVIDENCE BROUGHT ON RECORD TO PROVE T HE FACT THAT THE PAYMENT MENTIONED IN THE SEIZED MATERIAL WAS ACTUAL LY RECEIVED BY THE ASSESSEE. ON THE CONTRARY, THE PASSPORT SUBMITTED B Y THE ASSESSEE CLEARLY ESTABLISHED THE FACT THAT NEITHER SHE HAD T RAVELLED TO SIDNEY IN RELEVANT PERIOD NOR HOSTED THE ICC EVENT FOR WHICH SHE WAS SUPPOSED TO RECEIVE CASH PAYMENT. IT IS FURTHER RELEVANT TO OBS ERVE, EVEN MS. SANDHYA RAMCHANDRA, FROM WHOSE COMPUTER SUCH PRINT OUT WAS TAKEN HAD STATED BEFORE THE DEPARTMENTAL AUTHORITIES THAT SHE WAS NOT AWARE OF THE FACT MENTIONED IN THE SAID ANNEXURE AS IT WA S FOR A PERIOD PRIOR TO HER APPOINTMENT IN MATRIX. IN THESE CIRCUMSTANCES, SIMPLY RELYING UPON A UNTESTED / UNVERIFIED DOCUMENT AND WITHOUT ANY OTHE R CORROBORATIVE EVIDENCE TO DEMONSTRATE THAT THE ASSESSEE HAS ACTUA LLY RECEIVED CASH PAYMENT OF RS. 2,50,000 FOR HOSTING AN EVENT IN SID NEY, THE ADDITION, IN OUR VIEW, IS UNSUSTAINABLE. THEREFORE, WE UPHOLD TH E ORDER OF THE LEARNED COMMISSIONER (APPEALS) ON THIS ISSUE BY DISMISSING THE GROUND RAISED. ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 65 87. SIMILARLY, IN CASE OF AARTI COLONIZER COMPANY (SUPRA), THE MATTER CAME UP BEFORE THE COORDINATE RAIPUR BENCHES OF THE TRIBUNAL WHERE IT WAS HELD THAT THE ADDITION HAS BEEN MADE BY THE ASS ESSING OFFICER ON THE BASIS OF THE SCREENSHOT OF JOURNAL ENTRY DT. 4-9-2007 TAK EN FROM THE TALLY DATA IN THE PEN DRIVE FOUND DURING THE COURSE OF SEARCH AND THE PRINTOUT OF THE DETAILS OF LAND WHICH HAS BEEN REPRODUCED BY THE ASSESSING OFF ICER AND OTHER THAN THESE TWO MATERIALS, SINCE NO EVIDENCE HAS BEEN BROUGHT O N RECORD BY THE ASSESSING OFFICER AND SINCE NOTHING WAS FOUND DURING SEARCH E STABLISHING ANY INVESTMENT/PAYMENT MADE BY THE ASSESSEE, THE TWO EV IDENCES RELIED UPON BY THE ASSESSING OFFICER, ON A STANDALONE BASIS CANNOT FORM THE BASIS FOR INVOKING SECTION 69. THEREFORE, IT WAS HELD THAT PROVISIONS SECTION 69 ARE NOT ATTRACTED AS NEITHER THE ASSESSING OFFICER DISCHARGED THE INI TIAL BURDEN CAST UPON HIM TO PROVE INVESTMENT NOR ANY MATERIAL HAS BEEN BROUGHT ON RECORD TO THIS EFFECT AND ADDITIONS WERE HELD TO BE RIGHTLY DELETED BY TH E LD CIT(A) AND THE RELEVANT FINDINGS OF THE COORDINATE BENCH READ AS UNDER: 8. THE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED B EFORE US THAT IN ASSESSMENT YEAR 2008-09, ADDITION OF RS. 10,06,43,0 54 COMPRISES OF TWO ADDITIONS, ONE OF RS. 7,32,98,821 AND THE OTHER OF RS. 2,73,44,233. THE FACTS RELATING TO BOTH THE ADDITIONS ARE DIFFERENT AND THEREFORE BOTH THESE ADDITIONS NEED TO BE ADJUDICATED AT LENGTH. WE OBSE RVE THAT THE ADDITION OF RS. 7,32,98,821 HAS BEEN MADE BY THE ASSESSING O FFICER ON THE BASIS OF THE SCREENSHOT OF JOURNAL ENTRY DT. 4-9-2007 TAK EN FROM THE TALLY DATA IN THE PEN DRIVE AND THE PRINTOUT OF THE DETAILS OF LAND WHICH HAS BEEN REPRODUCED BY THE ASSESSING OFFICER ON PAGE NOS. 2 AND 3 OF THE ASSESSMENT ORDER AS TABLE 1. OTHER THAN THESE TWO M ATERIALS, THERE IS NO OTHER BASIS FOR MAKING ADDITION, WHICH IS UNDISPUTE D FACT AS PER RECORD ALSO ACCEPTED BY THE LEARNED COMMISSIONER DEPARTMEN TAL REPRESENTATIVE. THE ASSESSING OFFICER HAS MADE ADDI TION INVOKING SECTION 69. AS HELD INCIT V. NARESH KHATTAR (HUF) (SUPRA) A ND CIT V. DINESH JAIN HUF (SUPRA), THE INITIAL BURDEN IS ON THE REVENUE T O ESTABLISH THAT THERE ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 66 IS ANY INVESTMENT, WHICH HAS NOT BEEN RECORDED IN B OOKS AND IN RESPECT WHICH THE ASSESSEE IS NOT ABLE TO GIVE SATISFACTORY EXPLANATION TO THE ASSESSING OFFICER. AS RIGHTLY CONTENDED BY LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE, NEITHER THE JOURNAL ENTRY NOR THE DETAILS OF LAND WERE REPRODUCED IN TABLE 1 ON PAGE NOS. 2 A ND 3 OF THE ASSESSMENT ORDER TO ESTABLISH THAT ANY INVESTMENT W AS MADE BY DIE ASSESSEE FIRM. THE JOURNAL ENTRY DT. 4-9-2007 IS ON LY AN ACCOUNTING ENTRY PASSED FOR INTRODUCING THE LAND AS CAPITAL CONTRIBU TION BY THE PARTNERS WHO PURCHASED THE LANDS AND THEREFORE, THIS CANNOT BE CONSIDERED AS EVIDENCE OF INVESTMENT. IT IS UNDISPUTED THAT NEITH ER DURING SEARCH NOR DURING THE ASSESSMENT PROCEEDINGS, ANY MATERIAL WAS FOUND TO SHOW THAT THE AMOUNT CONTAINED IN THE JOURNAL ENTRY WAS PAID BY THE ASSESSEE FIRM TO ANYONE AT ANY TIME. THEREFORE, ONLY ON THE BASIS OF JOURNAL ENTRY, SECTION 69 COULD NOT HAVE BEEN INVOKED. AS REGARDS THE DETAILS OF LAND GIVEN ON PAGE NOS. 2 AND 3 OF ASSESSMENT ORDER AS T ABLE 1, IT MERELY CONTAINS SOME DETAILS ABOUT DIFFERENT LANDS AND IT DOES NOT CONTAIN EVEN A WHISPER ABOUT ANY INVESTMENT OR PAYMENT MADE BY A NYONE. WE OBSERVE THAT THE INFERENCE HAS BEEN DRAWN BY THE AS SESSING OFFICER ONLY ON THE BASIS OF THE THREE FIGURES MENTIONED AT THE END OF THE TABLE, ON PAGE NO. 3 OF THE ASSESSMENT ORDER. THIS, IN OUR CO NSIDERED VIEW, CANNOT BE CONSIDERED TO BE EVIDENCE OF PAYMENT/INVESTMENT. IT IS UNDISPUTED THAT DURING SEARCH OR THEREAFTER DURING THE ASSESSM ENT PROCEEDINGS, NO MATERIAL WAS FOUND OR BROUGHT ON RECORD EVIDENCING THAT THE THREE FIGURES REFERRED TO ABOVE REPRESENT ANY ACTUAL INVE STMENT/PAYMENT BY THE ASSESSEE. AS RIGHTLY CONTENDED BY THE LEARNED A UTHORISED REPRESENTATIVE OF THE ASSESSEE, THAT THE DETAILS GI VEN IN THE CHART ARE NOT EVIDENCE OF ANY PAYMENT/INVESTMENT. SINCE NO EVIDEN CE HAS BEEN BROUGHT ON RECORD BY THE ASSESSING OFFICER AND SINC E NOTHING WAS FOUND DURING SEARCH ESTABLISHING ANY INVESTMENT/PAYMENT M ADE BY THE ASSESSEE, THE TWO EVIDENCES RELIED UPON BY THE ASSE SSING OFFICER, ON A STANDALONE BASIS, IN OUR CONSIDERED VIEW, CANNOT FO RM BASIS FOR INVOKING ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 67 SECTION 69. THEREFORE, WE HOLD THAT PROVISIONS SECT ION 69 ARE NOT ATTRACTED AS NEITHER THE ASSESSING OFFICER DISCHARG ED THE INITIAL BURDEN CAST UPON HIM TO PROVE INVESTMENT NOR ANY MATERIAL HAS BEEN BROUGHT ON RECORD TO THIS EFFECT. 8.1 A PERUSAL OF THE JOURNAL ENTRY DT. 4-9-2007, WH ICH HAS BEEN ONE OF THE BASIS FOR ADDITION, SHOWS THAT THROUGH THIS JOU RNAL ENTRY, THE LANDS WAS PURCHASED BY THE TWO PERSONS NAMED IN THE JOURN AL ENTRY AND WAS BEING INTRODUCED AS THEIR CAPITAL CONTRIBUTION IN T HE PARTNERSHIP FIRM. SINCE, THESE JOURNAL ENTRIES HAVE BEEN RELIED UPON BY THE ASSESSING OFFICER. THUS, IT HAS REMAINED UNDISPUTED THAT THE LANDS WERE NOT PURCHASED BY THE ASSESSEE BUT BY THE TWO PERSONS AS NAMED IN THE JOURNAL ENTRY. WHEN THE LANDS WERE NOT PURCHASED BY THE ASSESSEE FIRM, ANY QUESTION OF PAYMENT OF ON MONEY DOES NOT ARIS E IN THE CASE OF ASSESSEE FIRM. AS RIGHTLY CONTENDED BY LEARNED AUTH ORISED REPRESENTATIVE OF THE ASSESSEE, THAT ALL THE LANDS, EXCEPT ONE, DE SCRIBED IN THE ASSESSMENT ORDER ON PAGE NOS. 2 AND 3, WERE PURCHAS ED PRIOR TO FORMATION OF THE ASSESSEE FIRM. WE OBSERVE THAT IN PARA 3 OF THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS HIMSELF MENTIONED THAT THE ASSESSEE FIRM WAS FORMED ON 4-9-2007. AS EVIDENT FR OM DIFFERENT ENTRIES OF LAND GIVEN IN TABLE 1 IN THE ASSESSMENT ORDER, T HE DATE OF PURCHASE IN ALL THE CASES, EXCEPT IN ONE CASE, FALLS PRIOR TO 4 -9-2007. IN OTHER WORDS, THE SEIZED MATERIAL ITSELF SHOWS THAT THE LANDS WER E PURCHASED PRIOR TO FORMATION OF THE ASSESSEE FIRM, IN THIS BACKGROUND ALSO, WE FAIL TO SEE HOW ANY CASE CAN BE MADE OUT OF PAYMENT OF ON MONE Y BY THE ASSESSEE. THERE IS YET ANOTHER CONVINCING REASON TH AT IN ALL THE THREE YEARS UNDER APPEAL, THERE WERE NO SALES AFFECTED BY THE ASSESSEE FIRM AND THE BUSINESS OF THE ASSESSEE FIRM HAD NOT EVEN STARTED, WHICH IS ALSO EVIDENCED BY THE PROFIT & LOSS ACCOUNT OF THE THREE YEARS PLACED AT PAGE NOS. 309, 311 AND 337 OF THE PAPER BOOK. THESE PROF IT & LOSS ACCOUNTS HAVE REMAINED UNDISPUTED BY THE ASSESSING OFFICER. WE ARE INCLINED TO ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 68 AGREE WITH THE ARGUMENT OF LEARNED AUTHORISED REPRE SENTATIVE OF THE ASSESSEE THAT WHEN THE SOURCE OF REVENUE FOR THE AS SESSEE WAS NOT THERE, IT CANNOT BE PERCEIVED THAT THE ASSESSEE COU LD HAVE EARNED ANY UNDISCLOSED INCOME AND MADE ANY UNDISCLOSED INVESTM ENT. IN CIT V. SMT. P.K. NOORJAHAN (SUPRA), ON BEHALF OF THE REVEN UE, IT WAS ARGUED THAT THE WORD MAY IN SECTION 69 SHOULD BE READ AS SHALL AGAINST WHICH HONBLE SUPREME COURT OBSERVED THAT IT WAS UNABLE T O AGREE. HONBLE SUPREME COURT THEREAFTER HELD THAT THE USE OF THE W ORD MAY CLEARLY INDICATES THAT THE INTENTION OF PARLIAMENT IN ENACT ING SECTION 69 WAS TO CONFER A DISCRETION ON THE INCOME TAX OFFICER IN TH E MATTER OF TREATING THE SOURCE OF INVESTMENT WHICH HAS NOT BEEN SATISFA CTORILY EXPLAINED BY THE ASSESSEE AS THE INCOME OF THE ASSESSEE AND THE INCOME TAX OFFICER IS NOT OBLIGED TO TREAT SUCH SOURCE OF INVESTMENT A S INCOME IN EVERY CASE WHERE THE EXPLANATION OFFERED BY THE ASSESSEE IS FO UND TO BE SATISFACTORY. THE QUESTION WHETHER THE SOURCE OF TH E INVESTMENT SHOULD BE TREATED AS INCOME OR NOT UNDER SECTION 69 HAS TO BE CONSIDERED IN THE LIGHT OF THE FACTS OF EACH CASE. IN THAT CASE, THE TRIBUNAL HELD THAT THE DISCRETION HAD NOT BEEN PROPERLY EXERCISED BY THE I NCOME TAX OFFICER AND THE AAC IN TAKING INTO ACCOUNT THE CIRCUMSTANCE S IN WHICH THE ASSESSEE WAS PLACED. HONBLE SUPREME COURT OBSERVED THAT IT DID NOT FIND ANY ERROR IN THE SAID FINDING RECORDED BY THE TRIBUNAL. IN SMT. RAJABAI B KADAM V. ASSTT. CIT (SUPRA) IT WA S FOUND THAT THE ASSESSEE, WHO WAS A MINOR, WAS FOUND CARRYING CASH OF RS. 1,18,500 BY THE POLICE DEPARTMENT. THE ASSESSEE THEREAFTER DIED . IN PURSUANCE TO THE REASSESSMENT NOTICE, HIS MOTHER FILED RETURN DECLAR ING NIL INCOME AND SHE COULD NOT EXPLAIN THE MONEY WHICH WAS RECOVERED FRO M HER MINOR SON. CO-ORDINATE BENCH HELD THAT THERE IS NO MATERIAL ON RECORD TO SUGGEST THAT THE MINOR COULD EARN SAID MONEY JUST WITHIN A PERIOD OF 2 MONTHS AFTER LEAVING HIS SCHOOL. IT WAS IN THESE FACTS AND CIRCUMSTANCES THAT THE ADDITION WAS HELD TO BE NOT JUSTIFIED, RELYING UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF SMT. P.K. NOORJAHAN (S UPRA). IF WE APPLY ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 69 THE RATIO OF AFORESAID TWO DECISIONS TO THE FACTS O F THE PRESENT CASE, WE FIND THAT WHEN THE SOURCE OF INCOME/REVENUE FOR THE ASSESSEE WAS MISSING IN THE SENSE THAT THE BUSINESS HAD NOT EVEN STARTED DURING ALL THE THREE YEARS AND SINCE DURING SEARCH, NOTHING WAS FO UND TO ESTABLISH THAT THE ASSESSEE HAD ANY UNDISCLOSED INCOME FROM ANY OT HER SOURCE, THE DISCRETION VESTED IN THE ASSESSING OFFICER SHOULD H AVE BEEN EXERCISED IN FAVOUR OF THE ASSESSEE AND THE ADDITION SHOULD NOT HAVE BEEN MADE. WE ALSO OBSERVE THAT THE ASSESSING OFFICER HAS NOT MAD E ANY ENQUIRY WHATSOEVER FROM DIFFERENT VENDORS OF THE LANDS AND NOT EVEN FROM THE TWO PERSONS NAMED IN THE JOURNAL ENTRY, WHO, AS PER THE JOURNAL ENTRY, INTRODUCED THEIR LANDS AS CAPITAL CONTRIBUTION IN T HE PARTNERSHIP FIRM. IN ABSENCE OF ANY ENQUIRY WHATSOEVER, NO ADDITION COUL D HAVE BEEN MADE ONLY ON THE BASIS OF INFERENCE. IT IS A SETTLED POS ITION OF LAW THAT FOR MAKING ADDITION UNDER SECTION 69, THERE HAS TO BE S OME MATERIAL ESTABLISHING ACTUAL INVESTMENT AND THEREFORE IT IS NOT JUSTIFIED TO INVOKE THE SECTION MERELY ON THE BASIS OF INFERENCE. 8.1.1 IN VIEW OF ALL THE ABOVE REASONS, WE HOLD THA T THE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING ADDITION OF RS. 7,32,98 ,821 ON ACCOUNT OF THE LANDS DESCRIBED ON PAGE NOS. 2 AND 3 OF THE ASSESSM ENT ORDER. WE, THEREFORE, DEEM IT PROPER TO CONFIRM THE FINDINGS O F LEARNED COMMISSIONER (APPEALS) ON THIS ISSUE AND HOLD THAT HE WAS JUSTIFIED IN DELETING THE ADDITION. 8.2. NEXT THE ADDITION OF RS. 2,73,44,233 COMPRISED IN T HE TOTAL ADDITION OF RS. 10,06,43,054, WE OBSERVE THAT THE ADDITION H AS BEEN MADE BY THE ASSESSING OFFICER ON THE BASIS OF PRINTOUT OF TALLY DATA FOUND IN THE PEN DRIVE SEIZED FROM THE RESIDENCE OF SHRI KISHORE ATL ANI. THE PRINTOUT CONTAINS DETAILS OF 32.68 ACRES OF LAND AND THE DET AILS HAVE BEEN REPRODUCED AS TABLE 2 IN THE ASSESSMENT ORDER, ON P AGE NOS. 4 AND 5. WE OBSERVE THAT APART FROM THIS PRINTOUT FOUND DURI NG SEARCH, NO OTHER ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 70 CORROBORATIVE MATERIAL IN THE FORM OF CASH BOOK LED GER ETC. WAS FOUND DURING SEARCH. A PERUSAL OF THE DETAILS SHOWS THAT THE LANDS WERE PURCHASED OVER A PERIOD OF THREE YEARS, FROM DIFFER ENT PERSONS. IT IS NOT THE CASE OF ASSESSING OFFICER THAT DETAILS OF PAYME NT OF INDIVIDUAL LANDS WERE ALSO FOUND DURING SEARCH. WHAT IS TO BE NOTED IS, APART FROM THE CHART FOUND, NO OTHER CORROBORATIVE EVIDENCE WAS FO UND DURING SEARCH. IT IS NOT THE CASE OF ASSESSING OFFICER THAT ANY BOOKS OF ACCOUNTS AND OTHER DETAILS SUPPORTING THE ENTRIES IN THE PRINTOUT WERE FOUND DURING SEARCH OR BROUGHT ON RECORD DURING THE ASSESSMENT PROCEEDINGS . IT IS NOT ALSO THE CASE OF ASSESSING OFFICER THAT ANY OTHER DETAILS IN RESPECT OF DIFFERENT LANDS LIKE DETAILS OF PAYMENT TO THE PERSONS ETC. W ERE FOUND DURING SEARCH. ALTHOUGH IT IS STATED THAT TALLY DATA WAS F OUND IN THE PEN DRIVE, CORRESPONDING BOOKS OF ACCOUNTS IN SUCH TALLY DATA WERE NOT FOUND AS THERE IS NO REFERENCE OF ANY SUCH CORROBORATIVE BOO KS IN THE ASSESSMENT ORDER. WE AGREE WITH THE ARGUMENT OF LEARNED AUTHOR ISED REPRESENTATIVE OF THE ASSESSEE THAT IF ANY UNACCOUNTED INVESTMENT WAS MADE IN RESPECT OF SO MANY LANDS, FROM SO MANY PERSONS THAT TOO SPR EAD OVER A PERIOD OF THREE YEARS, SOME OTHER CORROBORATIVE MATERIAL LIKE ACCOUNT OF THE PARTIES, DETAILS OF INDIVIDUAL PAYMENTS ETC. MUST A LSO HAVE BEEN MAINTAINED AND FOUND DURING SEARCH AND IN ABSENCE O F ANY SUCH CORROBORATIVE MATERIAL, THE CONTENTS OF THE PEN DRI VE/CHART DOES NOT INSPIRE CONFIDENCE. IT IS ALSO WORTH NOTING THAT TH ERE IS NO FINDING OF FACT RECORDED BY THE ASSESSING OFFICER ABOUT ANY UNACCOU NTED ASSETS OR UNACCOUNTED EXPENSES OR EXCESS CASH FOUND DURING SE ARCH. CONSIDERING ALL THE FACTS, IT COMES OUT THAT APART FROM THE PRI NTOUT IN THE FORM OF CHART, THERE IS NO OTHER EVIDENCE IN SUPPORT OF THE ADDITION MADE BY ASSESSING OFFICER AND THE CHART, BY ITSELF, DOES NO T CONSTITUTE ANY MATERIAL/EVIDENCE TO ESTABLISH UNACCOUNTED PAYMENT. AS HELD BY US EARLIER, FOR INVOKING SECTION 69, THE INITIAL BURDE N IS ON THE REVENUE TO ESTABLISH THAT ANY UNACCOUNTED INVESTMENT WAS MADE BY THE ASSESSEE. ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 71 THIS MANDATORY REQUIREMENT OF LAW IS MISSING IN THE PRESENT CASE AND SO THE ADDITION IS NOT JUSTIFIED. 8.2.1 IT IS SEEN THAT THE DETAILS OF THE LANDS ARE CONTAINED IN THE PRINTOUT OBTAINED FROM THE PEN DRIVE. WHEN COMPLETE DETAILS WERE AVAILABLE WITH THE ASSESSING OFFICER, THE ASSESSING OFFICER COULD HAVE CONDUCTED INDEPENDENT ENQUIRY FROM THE VENDORS, WHICH ALSO DO ES NOT APPEAR TO HAVE BEEN DONE. ON THE CONTRARY, THE ASSESSEE SUBMI TTED AFFIDAVIT OF TWO VENDORS BEFORE THE ASSESSING OFFICER AND THE AS SESSING OFFICER DID NOT EVEN CROSS-EXAMINE THEM TO VERIFY THE FACTS. IN ABS ENCE OF ANY CROSS EXAMINATION OF THE DEPONENTS OF THE TWO AFFIDAVITS, THE CONTENTS OF THE AFFIDAVIT BECOME CONCLUSIVE. 8.2.2 WHILE CONSIDERING THE EXPLANATION OF ASSESSEE ABOUT THE ENTRIES IN THE PEN DRIVE BEING FAKE, MADE BY ONE SHRI AJAY ATL ANI, IT IS NOTEWORTHY TO CONSIDER THAT NO ENQUIRY WHATSOEVER APPEARS TO H AVE BEEN CONDUCTED EITHER FROM THE SAID SHRI AJAY ATLANI OR FROM SHRI KISHORE ATLANI, FROM WHOSE RESIDENCE THE PEN DRIVE WAS FOUND. THE ASSESS EE EXPLAINED THE CIRCUMSTANCES UNDER WHICH THE ENTRIES WERE MADE IN THE TALLY DATA IN THE PEN DRIVE BY SHRI AJAY ATLANI. ALL THESE FACTS AND ASSERTIONS HAVE REMAINED UNCONTROVERTED. THE ASSESSEE EXPLAINED SOM E OF THE CONTENTS OF THE TALLY DATA IN PEN DRIVE TO DEMONSTRATE THAT THE ENTRIES FOUND IN PEN DRIVE ARE FAKE. BEFORE US. DURING THE COURSE OF HEARING, LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE FILED A S UMMARISED FORM OF HIS EXPLANATION IN THE FORM OF A CHART. THE EXPLANATION GIVEN TO THE ASSESSING OFFICER WAS TO THE EFFECT THAT SOME OF TH E ENTRIES IN THE PEN DRIVE DO NOT MATCH WITH THE ENTRIES IN REGULAR BOOK S IN THE SENSE THAT IN SOME CASES, PAYMENTS ARE MENTIONED TO BE MADE IN CA SH IN THE PEN DRIVE WHILE SUCH PAYMENTS ARE ESTABLISHED TO HAVE B EEN MADE THROUGH CHEQUE IN THE REGULAR BOOKS; THAT LAND SITUATED AT LABHANDI IS SHOWN TO HAVE BEEN SOLD TO ONE SHRI SURESH G. ATLANI WHILE A CTUALLY, THE LAND WAS ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 72 SOLD TO ONE SHRI VIJAY KUMAR MOTWANI THROUGH REGIST ERED SALE DEED, COPY WHEREOF HAS BEEN PLACED AT PAGE NOS. 161 TO 176 OF PAPER BOOK; THAT LIKEWISE, SOME ENTRIES WERE FOUND IN THE PEN DRIVE WHICH MENTIONS THAT THE PAYMENTS WERE MADE THROUGH BANK OF BARODA AND S TATE BANK OF INDIA, PANDRI TARAI BRANCH WHILE THE ASSESSEE EXPLA INED THAT NOBODY IN THE GROUP OF ASSESSEE HAD ANY ACCOUNT IN ANY BRANCH OF BANK OF BARODA AND THAT THE CHEQUE NUMBER IN RESPECT OF PAYMENT MA DE THROUGH STATE BANK OF INDIA DID NOT RELATE TO ANY BANK ACCOUNT HE LD BY THE CONCERNED PERSON IN THAT BANK AND SIMILARLY OTHER MANY DISCRE PANCIES WERE POINTED OUT BEFORE THE ASSESSING OFFICER. ALL THESE EXPLANA TIONS WERE REJECTED BY THE ASSESSING OFFICER WITHOUT GIVING ANY REASON WHA TSOEVER. HOWEVER, FOR REJECTING THE EXPLANATION OF ASSESSEE, IT WAS INCUM BENT UPON THE ASSESSING OFFICER TO HAVE GIVEN DETAILED REASONS FO R NOT ACCEPTING THE SAME AND IN ABSENCE OF ANY REASON GIVEN, WE DO NOT APPROVE THE ACTION OF THE ASSESSING OFFICER. 88. SIMILARLY, IN CASE OF MAHABIR PRASAD GUPTA (SUPRA), THE MATTER CAME UP BEFORE THE COORDINATE DELHI BENCHES OF THE TRIBUNAL. IN THIS CASE, DURING THE COURSE OF SEARCH AT THE PREMISES OF BRIJ MOHAN GUPTA, A DIARY CONTAINING ENTRIES IN CODED LANGUAGE WAS FOUND AND BASIS THE SAID ENTRIES, THE ASSESSING OFFICER HAS HELD THAT THE ASSESSEE HAS AD VANCED LOAN OF CERTAIN SUM THROUGH SHRI BRIJ MOHAN GUPTA AND ADDITION WAS MADE UNDER SECTION 69 AS UNDISCLOSED INVESTMENT. THE COORDINATE BENCH HELD THAT THE REVENUE COULD NOT ESTABLISH THAT NAME OF THE PERSON RECORDED IN T HE DIARY AS 'MPG' MEANT MAHABIR PRASAD GUPTA ONLY I.E. ASSESSEE AND FOLLOWI NG ITS EARLIER DECISION IN CASE OF ATUL GUPTA HAVING SIMILAR FACT PATTEN, DELE TED THE ADDITION AND RELEVANT FINDINGS OF THE COORDINATE BENCH READ AS UNDER: 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE TH ROUGH THE RECORD CAREFULLY. WE FIND THAT SIMILAR ISSUE WAS CONSIDERE D BY THE ITAT IN A NUMBER OF CASES. THE FINDINGS RECODED IN THE CASE O F ATUL GUPTA READ AS UNDER: ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 73 '16. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AND GONE THROUGH THE RECORD CAREFULLY. THE ISSUE FOR OUR ADJ UDICATION IS WHETHER THE NARRATION FOUND IN THE DIARY OF SHRI BR IJ MOHAN GUPTA RECOVERED DURING THE COURSE OF SEARCH CARRIED OUT A T HIS PREMISES IN 2004 IS A CONCLUSIVE EVIDENCE AGAINST THE ASSESS EE TO HOLD THAT ASSESSEE MADE INVESTMENT IN ADVANCING THE LOAN TO C ERTAIN PARTIES THROUGH SHRI BRIJ MOHAN GUPTA. THE REVENUE IN ORDER TO PROVE ITS CASE IS HARPING UPON THE NARRATIONS AVAILABLE IN TH E DIARY, STATEMENT OF SHRI RAM AVTAR SINGLA AND SHRI BRIJ MO HAN GUPTA. WE HAVE PERUSED THE SEIZED MATERIAL AVAILABLE ON PAGE 46 OF THE ASSESSEE'S PAPER BOOK. ON THIS PAGE, THERE ARE VARI OUS ENTRIES AGAINST THE NAMES OF VARIOUS PERSONS, THEY ARE IN A BBREVIATED FORM OR IN A CODED FORM. AT THE BOTTOM OF THE PAGE AGAIN ST 'ATUL', THERE ARE CERTAIN ENTRIES, NAMELY, 4, 4, 2, 1 & 1.5 TOTAL LING TO 12.50 ARE AVAILABLE. NO DOUBT, THIS IS A NARRATION MADE BY SH RI RAM AVTAR SINGLA IN HIS HANDWRITINGS. SHRI RAM AVTAR SINGLA H AS EXPLAINED WHAT FOR THE LATTER MENTIONED IN ABBREVIATED FORM S TANDS FOR E.G. HD MEANS HANUMAN DASS. KMF, KRISHAN KUMAR MANOJ KUM AR, KAROL BAGH, NEW DELHI. LEARNED INVESTIGATING OFFIFE R AT THE TIME OF RECORDING THE STATEMENT OF SHRI RAM AVTAR SINGHLA A LMOST PUT EVERY ABBREVIATED LETTER TO SHRI RAM AVTAR SINGHLA. HE WAS ABLE TO GIVE THE COMPLETE FORM BUT NOT THE ADDRESS. WITH RE GARD TO THE ASSESSEE, NO QUESTION WAS PUT. THE REVENUE FAILED T O ESTABLISH A LIVE LINK BETWEEN THE INFORMATION NOTED IN ABBREVIA TED FORM BY SHRI RAM AVTAR SINGHLA AND THE ASSESSEE. THE REVENUE COU LD NOT ESTABLISH THAT ATUL NOTED IN THIS DIARY IS AS ATUL KUMAR GUPTA I.E. THE ASSESSEE. THUS, NEITHER THE DIARY WAS FOUND FROM THE PREMISES OF THE ASSESSEE NOR IT IS IN THE HANDWRITING OF THE ASSESS EE, ANY THIRD PERSON MAY RIGHT THE NAME OF ANY PERSON AT HIS SWEE T WILL THEN AN ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 74 ASSESSEE CANNOT BE BURDENED WITH LIABILITY ON THE B ASIS OF SUCH WRITING. THAT CAN BE STARTING POINT OF INVESTIGATIO N BUT REVENUE HAS TO ESTABLISH THAT IT IS THE ASSESSEE WHO HAS PAID T HE MONEY TO CERTAIN CONCERNS WITHOUT RECORDING THEM IN THE BOOK S OF ACCOUNT. LEARNED FIRST APPELLATE AUTHORITY HAS DISCUSSED THI S ASPECT WHILE DELETING THE ADDITION AND WE DO NOT SEE ANY REASON TO INTERFERE IN HIS FINDINGS. THE FINDINGS IN ALL THE OTHER ASSESSM ENT YEARS ARE ALMOST SIMILAR EXCEPT VARIATION IN THE QUANTUM OF A DDITIONS. THEREFORE, ALL THE APPEALS OF THE REVENUE ARE DE VO ID OF ANY MERIT AND THEY ARE DISMISSED.' 8. THERE IS NO DISPARITY ON FACTS. THE REVENUE COUL D ONLY ABLE TO LAY ITS HANDS ON THE DIARY OF SHRI BRIJ MOHAN GUPTA WHERE N AMES OF PERSONS WERE RECORDED IN CODED WORDS E.F. 'HD' MEANS HAMAMM DASS, R.K. MEANS RAM KUMAR. THE REVENUE COULD NOT ESTABLISH TH AT 'MPG' MEANS MAHABIR PRASAD GUPTA ONLY I.E. 'ASSESSEE'. THE REVE NUE HAS NOT PLACED ON RECORD STATEMENTS OF SHRI BRIJ MOHAN GUPTA OR RAM A VTAR SINGAL OR RAJIV GUPTA BEFORE US. THEREFORE, IN OUR OPINION, THE ISS UE IN DISPUTE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE O RDERS OF THE ITAT PASSED IN THE CASE OF OTHER PERSONS I.E. ASHOK PRAS AD GUPTA, ATUL GUPTA, DEV DUTT PRASAD ETC. 9. ON DUE CONSIDERATION OF ALL THESE MATERIAL, WE D O NOT FIND ANY MERIT IN THIS APPEAL. IT IS DISMISSED. 89. IN LIGHT OF AFORESAID DISCUSSIONS AND FOLLOW ING THE DECISIONS CITED SUPRA, WE ARE OF THE CONSIDERED VIEW THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE PRESENT CASE, THERE IS NO BASIS FOR MAKING THE ADDITION IN THE HANDS OF THE ASSESSEE OF RS. 25,00,00,000/- MADE ON ACCOUNT OF CASH LOANS AND CONSEQUENT INTEREST CHARGED THEREON AMOUNTING TO RS . 90,58,625/- AND FOR THE REASONS CITED SUPRA, WE AFFIRM THE FINDINGS OF THE LD CIT(A) DELETING THE SAID ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 75 ADDITIONS. WE MAKE IT CLEAR THAT OUR FINDINGS ARE B ASED ON APPRECIATION OF PECULIAR FACTS AND CIRCUMSTANCES OF THE PRESENT CAS E AND THEREFORE SHOULD NOT BE TAKEN AS BINDING PRECEDENT IN OTHER CASES WHICH NEED TO BE EXAMINED IN LIGHT OF RESPECTIVE FACTS AND CIRCUMSTANCES. THE GR OUNDS OF APPEAL NO 1-3 TAKEN BY THE REVENUE ARE THUS DISMISSED. 90. GROUND NO. 4 RELATING TO DELETION OF RS 50,05,5 78/- ON ACCOUNT OF LONG TERM CAPITAL GAIN HAS BECOME INFRUCTIOUS IN VIEW O F SUBSEQUENT DECISION OF THE LD CIT(A) PASSED U/S 154 OF THE ACT AND WHICH A NY WAY IS SUBJECT MATTER OF OUR ADJUDICATION IN ITA NO. 66/JP/2020 IN SUBSEQUEN T PARAGRAPHS. SIMILARLY, WE FIND THAT THE ASSESSEE HAS ALSO SOUGHT TO RAISE ADDITIONAL GROUNDS OF APPEAL RELATING TO LONG TERM CAPITAL GAINS OF RS 50,05,578 /- AND SINCE THE ASSESSEE HAS FILED SEPARATE APPEAL AS WELL WHICH IS REGISTERED A S ITA NO. 66/JP/2020, THE SAME HAVE AGAIN BECOME INFRUCTIOUS AND ARE NOT ADMI TTED. 91. IN THE RESULT, THE APPEAL OF THE REVENUE IS DI SMISSED. ITA NO. 66/JP/2020 92. IN THIS APPEAL, THE ASSESSEE HAS CHALLENGED THE ORDER PASSED U/S 154 BY THE LD CIT(A) FOR A.Y 2011-12 AND HAS TAKEN THE FOL LOWING SOLE GROUND OF APPEAL:- IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT(A), WHILE PASSING THE ORDER UNDER SECTION 154, HAS ERR ED IN NOT CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, ALREADY PLACED ON RECORD W.R.T THE ADDITION MADE BY THE LD. AO OF RS. 50,05,578/- ON ACCOUNT OF LONG TERM CAPITAL GAIN, IN THE INCOME TAX COMPUTATION FORM. THE ACTION OF THE LD. CIT(A) IS ILLEGAL, UNJUSTIFIED, ARBITRARY, AGAINST THE FACTS OF THE CASE AND ALSO AGAINST THE PRINCIPLES OF NATURAL JUSTICE. RE LIEF MAY PLEASE BE GRANTED BY DELETING THE SAID ADDITION OF RS. 50,05 ,578/-. 93. THE LD. AR SUBMITTED THAT THE ASSESSEE HAD FILE D HIS RETURN OF INCOME ON 29.09.2011 DECLARING TOTAL INCOME OF RS.1,10,86,623 /- AND ASSESSMENT WAS COMPLETED VIDE ORDER PASSED U/S 143(3) DATED 31.03. 2016 WHEREIN RETURNED INCOME OF RS. 1,10,86,623/- WAS ACCEPTED. IT WAS FU RTHER SUBMITTED THAT THE ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 76 PURSUANT TO NOTICE U/S 148 OF THE ACT, THE ASSESSEE FILED HIS RETURN OF INCOME ON 17.04.2018 WHEREIN HE HAS DECLARED HIS INCOME AT RS. 1,10,86,623/- AS ORIGINALLY RETURNED AND ASSESSED. IT WAS FURTHER SU BMITTED THAT IN THE ORDER PASSED U/S 147 READ WITH SECTION 143(3) DATED 25.12 .2018, THE ASSESSING OFFICER HAS MADE ADDITION OF RS. 25,90,58,625/- AS AGAINST THE RETURNED INCOME OF RS. 1,10,86,623/- AND ASSESSED INCOME WAS DETERM INED AT RS. 27,01,45,250/-. IT WAS SUBMITTED THAT THERE WAS NO DISCUSSION IN THE ASSESSMENT ORDER AS WELL AS NO ADDITION WAS MADE BY THE ASSESSING OFFICER WHILE PASSING THE ORDER U/S 147 READ WITH SECTION 1 43(3) IN RESPECT OF LONG TERM CAPITAL GAIN AMOUNTING TO RS. 50,05,578/- AND ONLY ADDITION WAS IN RELATION TO ALLEGED CASH LOANS AND ALLEGED INTEREST INCOME OF RS 25,90,58,625/-. IT WAS SUBMITTED THAT IN THE INCOME TAX COMPUTATION FORM ATTACHED WITH THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAD INADVER TENTLY INCLUDED A FIGURE OF RS. 50,05,578/- TOWARDS LONG TERM CAPITAL GAINS AND WHICH WAS ALSO BROUGHT TO TAX IN THE HANDS OF THE ASSESSEE. IT WAS FURTHE R SUBMITTED THAT ASSESSEE TOOK SPECIFIC GROUND OF APPEAL BEFORE THE LD. CIT(A ) AND THE SAID GROUND OF APPEAL WAS INITIALLY NOT ADJUDICATED UPON BY THE LD CIT(A). SUBSEQUENTLY, THE REVENUE MOVED AN APPLICATION U/S 154 BEFORE THE LD. CIT(A) AND THE LD. CIT(A) HAS PASSED THE IMPUGNED RECTIFICATION ORDER U/S 154 WHEREIN THE GROUND OF APPEAL HAS BEEN DISMISSED. IT WAS SUBMITTED THAT AG AINST THE SAID FINDINGS AND ORDER OF THE LD. CIT(A), THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE THE TRIBUNAL AND GIVEN THE FACT THAT THE ASSESSING OFFI CER HAS NOT GIVEN ANY FINDING IN RESPECT OF ANY CAPITAL GAINS WHICH HAS ESCAPED T AXATION WHILE PASSING THE ORDER U/S 147 READ WITH SECTION 143(3), IT IS A CLE AR MISTAKE WHICH HAS HAPPENED WHILE COMPUTING TOTAL INCOME BY THE ASSESS ING OFFICER AND WHICH HAS WRONGLY BEEN UPHELD BY THE LD CIT(A). HENCE, THE AS SESSING OFFICER MAY BE DIRECTED TO PROVIDE THE NECESSARY RELIEF TO THE ASS ESSEE BY WAY OF DELETION OF ADDITIONS TOWARDS THE SO CALLED CAPITAL GAINS OF RS . 50,05,578/-. 94. PER CONTRA, LD. PCIT/DR DRAWN OUR REFERENCE TO THE ORDER OF THE LD. CIT(A). IT WAS SUBMITTED THAT DURING THE COURSE OF APPELLATE PROCEEDINGS, A ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 77 REPORT FROM THE ASSESSING OFFICER WAS CALLED AND IN THE SAID REPORT, THE ASSESSING OFFICER HAS STATED THAT THE ASSESSEE HIMS ELF WHILE FILING THE RETURN OF INCOME U/S 148 OF THE ACT HAS TAKEN CAPITAL GAINS O F RS. 50,05,578/- IN THE COMPUTATION OF TOTAL INCOME. HENCE, THE BASIS THE S AID REPORT OF THE AO, IN THE ABSENCE OF ANY FURTHER SUBMISSION BY THE ASSESSEE, THE LD. CIT(A) HAS UPHELD THE ACTION OF THE ASSESSING OFFICER. ACCORDINGLY, I T WAS SUBMITTED THAT THERE WAS NO INFIRMINITY IN THE IMPUGNED ORDER SO PASSED BY THE LD. CIT(A). HENCE, THE GROUND OF APPEAL SO TAKEN BY THE ASSESSEE BE DI SMISSED. 95. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE GONE THROUGH THE RETU RN OF INCOME FILED BY THE ASSESSEE IN RESPONSE TO NOTICE ISSUED U/S 148 AND F IND THAT IN THE COMPUTATION OF INCOME FILED ALONG WITH THE RETURN O F INCOME, THE ASSESSEE HAS OFFERED LONG TERM CAPITAL GAINS ON SALE OF SHAR ES AMOUNTING TO RS 23,19,214/- AND HAS ALSO CLAIMED LONG TERM CAPIT AL LOSS ON TRANSFER OF IMMOVEABLE PROPERTY AMOUNTING TO RS 23,91,888/-, AN D AFTER SETTING OFF LONG TERM CAPITAL GAINS AGAINST LONG TERM CAPITAL LOSS, THE ASSESSEE HAS CLAIMED CARRY FORWARD OF LONG TERM CAPITAL LOSS OF RS 72,67 3/-. THE FINDINGS OF THE ASSESSING OFFICER IN THE REMAND REPORT THAT THE ASS ESSEE HIMSELF WHILE FILING THE RETURN OF INCOME U/S 148 OF THE ACT HAS TAKEN CAPIT AL GAINS OF RS. 50,05,578/- IN THE COMPUTATION OF TOTAL INCOME IS THEREFORE NOT BASED ON TAX FILINGS MADE BY THE ASSESSEE OR ANY OTHER INDEPENDENT MATERIAL A VAILABLE ON RECORD. FURTHER IN THE ORDER PASSED U/S 147 READ WITH SECTI ON 143(3), IT IS AN ADMITTED FACT THAT THE ISSUE OF CAPITAL GAINS DIDN T ARISE FOR CONSIDERATION DURING THE COURSE OF REASSESSMENT PROCEEDINGS AND T HERE IS NO FINDING WHICH HAS BEEN RECORDED BY THE ASSESSING OFFICER DISPUTIN G THE FIGURES AS REPORTED BY THE ASSESSEE IN HIS RETURN OF INCOME UNDER THE H EAD LONG TERM CAPITAL GAINS. WE THEREFORE FIND THAT IT IS A CLEAR MISTA KE ON THE PART OF THE ASSESSING OFFICER WHILE COMPUTING THE TOTAL INCOME WHEREIN THE LONG TERM CAPITAL GAINS AMOUNTING TO RS. 50,05,578/- HAS BEEN INADVERTENTLY BROUGHT TO TAX IN THE HANDS OF THE ASSESSEE. THE ASSESSING OFF ICER IS HEREBY DIRECTED TO ITA NOS. 1190 & 1298/JP/2019 & 66/JP/2020 SH. PRAKASH CHAND KOTHARI, JAIPUR VS. DCIT, JAIPUR 78 DELETE THE SAID AMOUNT OF RS. 50,05,578/- AND THE G ROUND OF APPEAL TAKEN BY THE ASSESSEE IS ALLOWED. IN THE RESULT, APPEAL OF T HE ASSESSEE IS ALLOWED. 96. IN THE RESULT, THE APPEAL OF THE REVENUE IN ITA NO. 1298/JP/2019 IS DISMISSED, THE APPEAL OF THE ASSESSEE IN ITA NO. 11 90/JP2019 IS PARTLY ALLOWED AND APPEAL IN ITA NO. 66/JP/2020 FILED BY THE ASSES SEE IS ALLOWED IN LIGHT OF AFORESAID DIRECTIONS. ORDER PRONOUNCED IN THE OPEN COURT ON 12/10/2021. SD/- SD/- LANHI XKSLKBZ FOE FLAG ;KNO ( SANDEEP GOSAIN ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 12/10/2021 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT SHRI PRAKASH CHAND KOTHARI, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- DCIT, CENTRAL CIRCLE-02, JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NOS. 1190 & 1298/JP/2019 & 66/JP/20 20} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR
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