Assistant Commissioner of Income-Tax -2(1), RAIPUR V. SHRI B.L.Agrawal, RAIPUR

ITA 12/BIL/2012

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6743 (ITAT-RAIPUR)
• Duration Of Justice: 4 year(s) 11 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 18-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K MISHRA; D K JAIN
• Keywords: Search and seizure; Loose papers; Opportunity of being heard; Period of limitation; Validity of assessment; Onus to prove
• Section: 133A; 153A; 246; 263; 132

Judgement Text

1 ITA NO. 12/BLPR/2012. CO NO. 07 /BLPR/2012 IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER , AND SHRI C.M. GARG, JUDICIAL MEMBER. . I.T.A. NO. 12 / BLPR /201 2 ASSESSMENT YEAR : 20 09 - 10. ASSTT. COMMISSIONER OF INCOME - TAX - 2(1), SHRI B.L. AGRAWAL, RAIPUR. VS. RAIPUR. PAN A LCPA 5669A. APPELLANT. RESPONDENT. C.O. NO. 07/BLPR/2012 (IN ITA NO. 12/BLPR/2012) ASSESSMENT YEAR : 2009 - 10. SHRI B.L. AGRAWAL, ASSTT. COMMISSIONER OF INCOME - TAX, RAIPUR. VS. 2(1), RAIPUR. CROSS OBJECTOR. RESPONDENT. DEPARTMENT BY : SHRI P.K. MISHRA & SHRI D.K. JAIN. ASSESSEE BY : SHRI K.P. DEWANI. DATE OF HEARING : 19 - 10 - 2016 DATE OF PRONOUNCEMENT : 9 TH JAN.,2017. O R D E R. PER SHAMIM YAHYA, A.M.: THIS APPEAL BY THE REVENUE AND CROSS OBJECTION BY THE ASSESSEE EMANATE OUT OF THE ORDER OF LEARNED CIT(APPEALS), RAIPUR DATED 29 - 06 - 2011 AND PERTAINS TO ASSESSMENT YEAR 2009 - 10. 2. AT THE OUTSET IN THIS CASE LEARNED D.R. SHRI P.K. MISHRA, COMMISSIONER OF INCOME TAX, REFERRING TO FOLLOWING APPEALS , SUBMITTED AS UNDER : 2 ITA NO. 12/BLPR/2012. CO NO. 07 /BLPR/2012 ITA NO. 110 - 11 4 /BLPR/12 AY S 2005 - 06 TO 2009 - 10. ITA NO. 6 TO 11/BLPR/12 AYS. 2003 - 04 TO 2008 - 09 ITA 12/BLPR/12 AY 2009 - 10. THE ASSESSMENTS FOR THE ABOVE AYS SUFFER FROM SERIOUS LEGAL DEFECTS. WHEN THE SEARCH AND SEIZURE OPERATION IN ASSESSEES PREMISES WERE CONDUCTED ON 4.2.2010 ASSESSMENT U/S 153C WERE PENDING WHICH RELATED TO AN EARLIER SEARCH OPERATION. AS PER TH E SECOND PROVISO TO SECTION 153A OF THE ACT, ASSESSMENT OR REASSESSMENT , IF ANY, RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SIX ASSESSMENT YEARS REFERRED TO IN THIS SUB - SECTION PENDING ON THE FATE OF INITIATION OF THE SEARCH UNDER SECTI ON 132.....SHALL ABATE. ON 4.2.2010 I.E. ON THE DATE OF SEARCH AND SEIZURE OPERATION IN ASSESSEES PREMISES, ASSESSMENT UNDER SECTION 153C FOR AYS 2003 - 04 TO 2009 - 10 WERE PENDING. THE AO CARRIED ON THE ASSESSMENT PROCEEDINGS AND SEPARATE ORDERS U/S 153C R ELATING TO EARLIER PROCEEDINGS AND U/S 153A IN RESPECT OF SEARCH OPERATION DATED 4.2.2010 WERE PASSED. THEREFORE ALL THESE ASSESSMENTS ARE NOT VALIDLY PASSED AS PER THE PROVISIONS OF THE IT ACT. THE APPEALS AT SR. NO. 1 AND 2 RELATE TO THE ASSESSMENTS U/S 153C AND THOSE AT SR. NO. 3 RELATE TO ASSESSMENTS U/S 153A. ALL THESE ASSESSMENTS ARE DEFECTIVE. 3. REFERRING TO THE ABOVE, LEARNED D.R. SUBMITTED THAT ALL THE ASSESSMENTS IN THIS CASE SHOULD HAVE BEEN ANNULLED BY THE LEARNED CIT(APPEALS) AND MATTER REMIT TED TO THE AO FOR FRESH ASSESSMENTS, THAT THE DEPARTMENT IS IN THE PROCESS OF FILING ADDITIONAL GROUNDS IN THIS REGARD. HENCE ADJOURNMENT MAY BE GRANTED. 3 ITA NO. 12/BLPR/2012. CO NO. 07 /BLPR/2012 4. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. WE FIND THAT IN THE ABOVE AVERMENTS LEARNED D.R. IS ACCEPTING THAT THE ASSESSMENTS ARE DEFECTIVE AND THEY HAVE NOT BEEN VALIDLY PASSED. THIS SIGNIFIES THAT THESE ARE INVALID ASSESSMENTS. IF THIS PLEA IS ACCEPTED THEN THERE CANNOT BE ANY GRIEVANCE TO THE REVENUE IN LEARNED CIT(APPEALS) DELETING THE ADDITIONS MADE BY THE AO. IT IS SETTLED LAW THAT AN INVALID ASSESSMENT CANNOT BE CURED . 5. AS REGARDS THE LEARNED D.RS PLEA THAT IN THIS CASE THE CIT(APPEALS) SHOULD HAVE ANNULLED THE ASSESSMENT AND SENT THE MATTER BACK TO THE AO FOR RECONSIDERATION IS T OTALLY AN UNSUSTAINABLE PLEA. WHAT THE LEARNED D.R. IS SEEKING IS A DIRECTION FROM THE TRIBUNAL THAT LEARNED CIT(APPEALS) SHOULD HAVE INVOK ED THE PROVISIONS OF SECTION 263 OF THE I.T. ACT. THIS IS TOTALLY UNSUSTAINABLE IN LAW. ANNULLING THE ASSESSMENT AND SENDING THE MATTER BACK TO THE AO IS A PREROGATIVE OF COMMISSIONER OF INCOME - TAX U/S 263 OF THE I.T. ACT. WE MAY GAINFULLY REFER TO THE PROVISION OF SECTION AS UNDER : 263. (1) THE 23A [ PRINCIPAL COMMISSIONER OR ] COMMISSIONER MAY CALL FOR AND EXAMINE THE RECORD 24 OF ANY PROCEEDING UNDER THIS ACT, AND IF HE CONSIDERS THAT ANY ORDER PASSED THEREIN BY THE 25 [ASSESSING] OFFICER IS ERRONEOUS 24 IN SO FAR AS 24 IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE 24 , HE MAY, AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD AND AFTER MAKING OR CAUSING TO BE MADE SUCH INQUIRY AS HE DEEMS NECESSARY, PASS SUCH ORDER THEREON AS THE CIRCUMSTANCES OF THE CASE JUSTIFY, INCLUDING AN ORDER ENHANCING OR MODIFYING THE ASSESSMENT, OR CANCELLING THE ASSESSMENT 24 AND DIRECTING A FRESH ASSESSMENT. 26 [ EXPLANATION . FOR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARED THAT, FOR THE PURPOSES OF THIS SUB - SECTION, ( A ) AN ORDER PASSED 27 [ON OR BEFORE OR AFTER THE 1ST DAY OF JUNE, 1988] BY THE ASSESSING OFFICER SHALL INCLUDE ( I ) AN ORDER OF ASSESSMENT MADE BY THE ASSISTANT COMMISSIONER 28 [OR DEPUTY COMMISSIONER] OR THE INCOME - TAX OFFICER ON THE BASIS OF THE DIRECTIONS ISSUED BY THE 29 [JOINT] COMMISSIONER UNDER SECTION 144A ; ( II ) AN ORDER MADE BY THE 29 [JOINT] COMMISSIONER IN EXERCISE OF THE POWERS OR IN THE PERFORMANCE OF THE FUNCTIONS OF AN ASSESSING OFFICER CONFERRED ON, OR AS SIGNED TO, 4 ITA NO. 12/BLPR/2012. CO NO. 07 /BLPR/2012 HIM UNDER THE ORDERS OR DIRECTIONS ISSUED BY THE BOARD OR BY THE 29A [ PRINCIPAL CHIEF COMMISSIONER OR ] CHIEF COMMISSIONER OR 29A [ PRINCIPAL DIRECTOR GENERAL OR ] DIRECTOR GENERAL OR 29A [ PRINCIPAL COMMISSIONER OR ] COMMISSIONER AUTHORISED BY THE BOARD IN THIS BEHALF UNDER SECTION 120 ; ( B ) 'RECORD' 30 [SHALL INCLUDE AND SHALL BE DEEMED ALWAYS TO HAVE INCLUDED] ALL RECORDS RELATING TO ANY PROCEEDING UNDER THIS ACT AVAILABLE AT THE TIME OF EXAMINATION BY THE 29A [ PRINCIPAL COMMISSIONER OR ] COMMISSIONER; ( C ) WHERE ANY ORDER REFERRED TO IN THIS SUB - SECTION AND PASSED BY THE ASSESSING OFFICER HAD BEEN THE SUBJECT MATTER OF ANY A PPEAL 31 [FILED ON OR BEFORE OR AFTER THE 1ST DAY OF JUNE, 1988], THE POWERS OF THE 31A [ PRINCIPAL COMMISSIONER OR ] COMMISSIONER UNDER THIS SUB - SECTION SHALL EXTEND 31 [AND SHALL BE DEEMED ALWAYS TO HAVE EXTENDED] TO SUCH MATTERS AS HAD NOT BEEN CONSIDERED AND DECIDED IN SUCH APPEAL.] 32 [(2) NO ORDER SHALL BE MADE UNDER SUB - SECTION (1) AFTER THE EXPIRY OF TWO YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER SOUGHT TO BE REVISED WAS PASSED.] (3) NOTWITHSTANDING ANYTHING CONTAINED IN SUB - SECTION (2), AN ORDER IN REVISION UNDER THIS SECTION MAY BE PASSED AT ANY TIME IN THE CASE OF AN ORDER WHICH HAS BEEN PASSED IN CONSEQUENCE OF, OR TO GIVE EFFECT TO, ANY FINDING OR DIRECTION CONTAINED IN AN ORDER OF THE APPELLATE TRIBUNAL, 33 [NATIONAL TAX TRIBUNAL,] THE HIGH COURT OR THE SUPREME COURT. EXPLANATION . IN COMPUTING THE PERIOD OF LIMITATION FOR THE PURPOSES OF SUB - SECTION (2), THE TIME TAKEN IN GIVING AN OPPORTUNITY TO THE ASSESSEE TO BE REHEARD UNDER THE PROVISO TO SECTION 129 AND ANY PERIOD DURING WHICH ANY PROCEEDING UNDER THIS SECTION IS STAYED BY AN ORDER OR INJUNCTION OF ANY COURT SHALL BE EXCLUDED. FROM THE ABOVE IT IS CLEAR THAT THE RELIEF SOUGHT BY THE LEARNED D.R. FALLS UNDER THE REALM OF SECTION 263 OF THE I.T. ACT. THIS IS NOT AT ALL PERMISSIBLE BY THE CIT(APPEALS) UNDER THE PRESENT APPEAL WHICH HE WAS CEASED OF U/S 246 OF THE I.T. ACT. SECTION 251 OF THE I.T. ACT DEALING WITH THE POWER OF CIT(APPEALS) READ AS UNDER : 251. (1) IN DISPOSING OF AN APPEAL, THE 29 [* * *] 30 [COMMISSIONER (APPEALS)] SHALL HAVE THE FOLLOWING POWERS ( A ) IN AN APPEAL AGAINST AN ORDER OF ASSESSMENT, HE MAY CONFIRM, REDUCE, ENHANCE OR ANNUL THE ASSESSMENT 33 34 [* * *]; 35 [( AA ) IN AN APPEAL AGAINST THE ORDER OF ASSESSMENT IN RESPECT OF WHICH THE PROCEEDING BEFORE THE SETTLEMENT COMMISSION ABATES UNDER SECTION 245HA , HE MAY, AFTER TAKING 5 ITA NO. 12/BLPR/2012. CO NO. 07 /BLPR/2012 IN TO CONSIDERATION ALL THE MATERIAL AND OTHER INFORMATION PRODUCED BY THE ASSESSEE BEFORE, OR THE RESULTS OF THE INQUIRY HELD OR EVIDENCE RECORDED BY, THE SETTLEMENT COMMISSION, IN THE COURSE OF THE PROCEEDING BEFORE IT AND SUCH OTHER MATERIAL AS MAY BE BROU GHT ON HIS RECORD, CONFIRM, REDUCE, ENHANCE OR ANNUL THE ASSESSMENT;] ( B ) IN AN APPEAL AGAINST AN ORDER IMPOSING A PENALTY, HE MAY CONFIRM OR CANCEL SUCH ORDER OR VARY IT SO AS EITHER TO ENHANCE OR TO REDUCE THE PENALTY; ( C ) IN ANY OTHER CASE, HE MAY PASS SUCH ORDERS IN THE APPEAL AS HE THINKS FIT. (2) THE 36 [* * *] 37 [COMMISSIONER (APPEALS)] SHALL NOT ENHANCE AN ASSESSMENT OR A PENALTY OR R EDUCE THE AMOUNT OF REFUND UNLESS THE APPELLANT HAS HAD A REASONABLE OPPORTUNITY OF SHOWING CAUSE AGAINST SUCH ENHANCEMENT OR REDUCTION. EXPLANATION . IN DISPOSING OF AN APPEAL, THE 36 [* * *] 37 [COMMISSIONER (APPEALS)] MAY CONSIDER AND DECIDE ANY MATTER ARISING OUT OF THE PROCEEDINGS IN WHICH THE ORDER APPEALED AGAINST WAS PASSED, NOTWITHSTANDING THAT SUCH MATTER WAS NOT RAISED BEFORE THE 36 [* * *] 37 [COMMISSIONER (APPEALS)] BY THE APPELLANT. A READING OF THE ABOVE MAKES IT CLEAR THAT THE ACT DOES NOT EMPOWER THE COMMISSIONER OF INCOME TAX TO ANNUL THE ASSESSMENT AND SEND THE MATTER BACK TO THE AO FOR RECONSIDERATION. 6. IN VIEW OF THE ABOVE DISCUSSION IT APPEARS FROM THE ABOVE AVERMENTS OF THE LEARNED D.R. THAT THE ASSESSMENTS IN THIS CASE DESERVE TO BE QUASHED ABINITIO. HOWEVER, SINCE THERE IS NO SUCH GROUND RAISED EITHER BY THE REVENUE OR BY THE ASSESSEE, WE DO NOT DEEM IT APPROPRIATE TO ENGAGE INTO THIS ADJUDICATION TO HOLD THE ASSESSMENTS TO BE INVALID. 7. FURTHER MORE LEARNED DRS PLEA THAT LEARNED CIT(APPEALS) SHOULD HAVE ANNULLED THE ASSESSMENT AND SENT THE MATTER BACK TO THE AO FOR RECONSIDERATION ALSO HAS NO MERITS. HENCE THERE IS NO COGENT REASON FOR SEEKING ADJOURNMENT. 8 . REVENUES APPEAL. THE GRO UNDS OF APPEAL READ AS UNDER : 6 ITA NO. 12/BLPR/2012. CO NO. 07 /BLPR/2012 1. WHETHER IN LAW AND ON FACTS & CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN CONCLUDING THAT THE ADDITION OF RS.1,21,08,113/ - MADE BY A.O. DID NOT MAKE OUT A CASE FOR INCLUDING THE INCOME ON SUBSTANTIVE BASIS IN THE HAND S OF THE ASSESSEE AND DIRECTING THE A.O. TO ASSESS IN THE HANDS OF SHRI ANAND KUMAR AGRAWAL. 2. WHETHER IN LAW AND ON FACTS & CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN QUASHING THE ASSESSMENT ON THE GROUND THAT PROCEEDINGS U/S 153C ARE NOT CORRECT A ND NO INCRIMINATING MATERIAL WAS FOUND. 9 . IN THIS CASE THE AO LACONICALLY MADE THE ADDITION BY OBSERVING AS UNDER : THE FACTS OF THE CASE AND SUBMISSIONS OF THE ASSESSEE ARE COMMON FOR ASSESSMENT YEARS 2003 - 04 TO 2009 - 10. THE FINDINGS ARE ALSO APPLICABLE TO THIS ASSESSMENT YEAR. SHRI ANAND AGRAWAL, BROTHER IN LAW OF THE ASSESSEE HAS OFFERED THE FOLLOWING INCOME AGAINST THE VALUABLES AND LOOSE PAPERS RECOVERED FROM THE RED - SUITCASE FOUND IN THE BED - ROOM OF SMT. SITA DEVI AGRAWAL, HIS MOTHER: - PARTICULARS AMOUNT RS. ASMT. YEAR. CASH 33,00,000/ - 2009 - 10. JEWELLERY 89,92,117/ - 2009 - 10. OTHER LOOSE PAPERS 1,00,08,000/ - 2009 - 10. FAMILY CONTRIBUTION TO SMT. SANGEETA AGRAWAL (SISTER). 1,75,000/ - 2009 - 10. YEAR - WISE TOTAL 2,24,75,117/ - . 2009 - 10 ON THE BASIS OF FACTS AND FINDINGS, ELABORATELY DETAILED IN THE ASSESSMENT ORDERS PASSED UNDER SEC. 153C R.W.S. 153A OF THE INCOME - TAX ACT, 1961 IN THE ASSESSEES CASE FOR ASSESSMENT YEAR 2003 - 04 TO 2008 - 09, TH E INCOME OFFERED BY SHRI A NAND AGRAWAL IS ASSESSABLE IN THE CASE OF THE ASSESSEE ON SUBSTANTIVE BASIS. 1 0 . UPON ASSESSEES APPEAL LEARNED CIT(APPEALS) CONSIDERED THE ISSUE AND REFERRED TO HIS APPELLATE ORDER FOR ASSESSMENT YEARS 2004 - 05 TO 2008 - 09 IN THE CASE OF THE SAME ASSESSEE WHEREIN HE HAS DELETED SIMILAR ADDITIONS. APPEALS AGAINST THE ABOVE CIT(APPEALS) ORDER WERE BELOW THE LIMIT FIXED BY THE CBDT FOR FILING APPEALS BEFORE THE ITAT. HENCE THEY WERE DISMISSED IN LIMINE. THE 7 ITA NO. 12/BLPR/2012. CO NO. 07 /BLPR/2012 SAID DISMISSAL HAS REACHED FINALITY. FOR THE PRESENT ASSESSMENT YEAR THE LEARNED CIT(APPEALS) DELETED THE ADDITION HOLDING AS UNDER : THESE GROUNDS OF APPEAL ARE EFFECTIVELY DIRECTED AGAINST THE ADDITIONS MADE BY THE A.O. AGGREGATING TO RS . L,21 ; 08 ; 1L3/ - (I . E . RS . 32 , 98,163 + 86,34 , 950 + 1 , 75 , 000) - RESPECTIVELY REPRESENTING CASH, JEWELLERY AND FAMILY CONTRIBUTION OFFERED TO TA X IN THE CASE OF SHRI ANAND KUMAR AGRAWAL. THE ADDITIONS ON THESE ISSUES HAVE ALSO BEEN DISCUSSED IN THE APPEAL ORDER REFERRED ABOVE . HOWEVER , IT IS FURTHE R HEL D THAT T HE AO DID NOT REFER TO ANYTHING RELATING TO THESE ITEMS IN THE SAT I SFACTION NO T E . HE HAS ALSO NOT MADE OUT ANY CASE FOR INCLUDING THESE ITEMS IN THE INCOME OF THE APPELLANT E X CEPT TH A T THE SAME W E RE OFF E RED B Y SHRI ANA N D KUM AR AG R A W AL I N HI S RE TUR N A N D W H O M HE T R E AT E D AS B E NAMIDAR OF THE APPELLANT ON THE BAS I S O F VARIOUS INFERENCE S . P E R USA L OF THE INITIAL STATEMENT REVEALS THAT THE RED SUITC A SE WAS OWNED BY SHRI ANAND KUMAR AGRAWAL . SMT. SITA DEVI AGRAWAL ALSO ADMIT T ED THE OWNERSHIP , THUS , I N S O F AR AS THE APPELLAN T IS CONCERNED , THERE IS NO INCRIMINATING MATERI A L RELATING TO THE CASH AND JEWELLERY . HENCE, THESE FACTS SUGGEST THAT THESE ASSETS DO NOT BELONG TO THE APPELLANT . SIMILARLY, THERE IS NO EVIDENCE BROUGHT ON RECORD BY THE AO, TO SHOW THAT THE FAMILY CONTRIBUTION MADE BY SHRI ANAND KUMAR AGRAWAL WAS IN FACT THE MONEY OF SHRI B . L . AGRAWAL , WHICH WAS PLOUGHED BACK THROUGH SHRI ANAND KUMAR AGRAWAL . UNDER THESE CIRCUMSTA NCES, THE ONLY LOGICAL CONCLUSION, SPECIFICALLY WITH RESPECT TO MOVABLE ASSETS, IS THAT THE POSSESSOR IS THE OWNER AND THE LIABILITY THEREUPON TO EXPLAIN THE SAME RESTS WITH HIM UNLESS OTHERWISE PROVED BY CREDIBLE EVIDENCE . THE PROVISIONS OF SEC . 292C OF TH E ACT IN FACT AIM AT ACHIEVING THIS OBJECTIVE . IN THE INSTANT CASE, THE A . O . HAS NEITHER, DURING THE ASSESSMENT PROCEEDINGS NOR, DURING THE REMAND PROCEEDINGS, POINTED OUT ANY EVIDENCE TO SUBSTANTIATE HIS OPINION THAT ' THE CASH AND GOLD JEWELLERY ACTUALL Y BELONG TO THE APPELLANT, EXCEPT HOLDING THAT THE RED SUITCASE AS A WHOLE BELONGS TO HIM ON THE GROUND THAT IT WAS NOT IMMEDIATELY OWNED BY SHRI ANAND KUMAR AGRAWAL, WHICH IS ' A FACT CONTRARY TO THE INITIAL STATEMENT OF SMT . SITA DEVI AGRAWAL ' AND SHRI ANAND KUMAR AGRAWAL RECORDED DURING SEARCH . THE APPELLANT'S ARGUMENT THAT THE JEWELLERY WAS SUBSEQUENTLY RELEASED TO SHRI ANAND KUMAR AGRAWAL ALSO ESTABLISHES THAT THE DEPARTMENT EFFECTIVELY RECOGNIZED SHRI ANAND KUMARAGRAWAL AS THE OWNER OF T HE JEWELLERY, HENCE, THE CONTENTIONS THAT THE SAME CANNOT B E ASSESSED IN THE HANDS OF THE APPELLANT ALSO CARRIES SUBSTANTIAL FORCE . SIMILAR IS THE CASE WITH RESPECT TO FAMILY CONTRIBUTION OF RS . L,75,OOOI - RELATING TO THIS YEAR AND THE ADDITIONS MADE IN T HIS REGARD HAVE BEEN DELETED IN THE APPEAL ORDER OF EVEN DATE FOR THOSE ASSESSMENT YEARS. IN THIS VI E W OF THE MATTER, I AM OF THE CONSIDERED OPINION THAT ON THE BASIS OF _ ONLY THIS MATERIAL AND WITHOUT ANY INQUIRY , NO ADDITION COULD BE POSSIBLE OR SUSTAINABLE IN THE CASE OF T HE A PPELLANT . THE A. O . IS THEREFORE, DIRECTED TO ' EXCLUDE THESE ITEMS FROM THE INCOME OF THE APPELLANT AND ASSESS THE SAME IN THE HAND S OF SHRI ANAND KUM ' AR AGRAWAL ON SUBSTANTIVE BASIS. 1 1 . AGAINST THE ABOVE ORDER THE REVENUE IS IN APPEAL BEFORE THE ITAT. 1 2 . LEARNED D.R. SUBMITTED THAT IN THE COURSE OF SEARCH A RED SUIT - CASE WAS SEIZED FROM THE PREMISES OF ASSESSEES BROTHER - IN - LAW SHRI ANAND AGRAWAL FROM 8 ITA NO. 12/BLPR/2012. CO NO. 07 /BLPR/2012 THE BED ROOM OF HIS MOTHER - IN - LAW SMT. SITADEVI AGRAWAL. HE SUBMITTED THAT THE SUIT - CASE CONTAINED CASH, JEWELLERY AND PAPERS WHICH WERE IN THE HAND - WRITING OF THE ASSESSEE. HE SUBMITTED THAT THE KEY OF THE SUITCASE WAS NOT READILY AVAILABLE. HE SUBMITTED THAT INITIALLY THERE WAS N O PROPER RESPONSE FROM SMT. SITADEVI AGRAWAL AND SHRI ANAND AGRAWAL REGARDING THE OWNERSHIP OF THE BAG. HE SUBMITTED THAT SHRI ANAND AGRAWAL OWNED UP THE CONT ENTS OF THE SUIT - CASE LATER ON WHICH CANNOT BE RELIED UPON. LEARNED D.R. FURTHER SUBMITTED THAT SINCE THE LEARNED CIT(APPEALS) HAS GIVEN HIS DECISION WITHOUT CONSIDERING THE ISSUE OF PAPERS BEING IN THE HANDS OF THE ASSESSEE WHICH WAS THE BASIS FOR PROCEEDINGS U/S 153C AND ADDITIONS IN THE ASSESSMENT ORDER, HIS ORDER SUFFERS FROM SERIOUS ERROR. HENCE LEARNED D.R. PLEADED THAT THE ORDER OF THE LEARNED CIT(APPEALS) MAY KINDLY BE CANCELLED AND THE CASE BE SET ASIDE TO THE AO. 1 3 . PER CONTRA LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT; SHRI ANAND KUMAR AGRAWAL HAD OFFERED INCOME IN THE RETURN FILED UN DER SECTION 153A OF I.T. ACT, 1961. THE AFORESAID INCOME HAS BEEN ASSED BY THE A.O. ON PROTECTIVE BASIS AT THE HANDS OF SHRI ANAND AGRAWAL AND HAS BEEN ASSESSED ON SUBSTANTIVE BASIS AT THE HANDS OF ASSESSEE. IT HAS BEEN HELD BY A.O. THAT SHRI ANAND AGRAWAL IS BENAMIDAR OF SHRI B.L. AGRWAL. THAT I N THE COURSE OF ACTION U/S 132(1) OF I.T. ACT, 1961 AT THE PREMISES OF SHRI ANAND AGRAWAL A RED BAG CONTAINING CERTAIN ORNAMENTS, CASH AND DOCUMENS WAS FOUND WITH SMT. SITA DEVI AGRAWAL. IN THE COURSE OF SEARCH STAT EMENT OF SMT. SITA DEVI AGRAWAL WAS RECORDED DURING PROCEEDINGS U/S 132(4) OF I.T. ACT, 1961. IN STATEMENT U/S 132(4) SHE DEPOSED IN ANSWER TO QUESTION NO.2 THAT THE AFORESAID BAG BELONGED TO HER AND CONTENTS OF THE SAME ARE OWNED BY HER. THE INVENTORY DRA WN IN R ESPECT TO ORNAMENTS AND CASH FOUND DURING THE COURSE OF SEARCH CLEARLY INDICATE THAT ORNAMENTS AND CASH ARE BELONGING TO SMT . SITA DEVI AGRAWAL . IN THE COURSE OF SEARCH ITSELF SHRI ANAND AGRAWAL IN ANSWER TO 9 ITA NO. 12/BLPR/2012. CO NO. 07 /BLPR/2012 QUESTION NO. 40, 91 & 95 HAS STATED THAT THE BAG CONTAINING THE ORNAMENTS AND CASH AND DOCUMENTS BELONGED TO THEM . NO WHERE I N THE STATEMENT IT IS AVERRED THAT IT BELONGS TO SHRI S.L . AGRAWAL . SHRI ANAND AGRAWAL IN SUBSEQUENT STATEMENT GIVEN ON 28/01/2009 HAS REAFFIRMED THAT PAPERS, CASH AND ORN AMENTS BELONG TO HIM. THAT O RNAMENTS FOUND IN RED BAG WERE SEIZED ON 21/10/2008 FROM PREMISES OF SHRI ANAND AGRAWAL . HON ' BLE COMMISSIONER OF INCOME TAX , RAIPUR R ELEASED AFORESAID ORNAMENTS TO ITS OWNER SHR I ANAND AGRAWAL ON 20101/2009 . THIS CLEARLY INDICATE THAT ORNAMENTS BELONGS TO SHRI ANAND AGRAWAL . SUCH ORNAMENTS CAN IN NO MANNER OF CONSIDERATION BE CONSIDERED AS BELONGING TO ASSESSEE . THAT IN THE COURSE OF ASSESSMENT PROCEEDINGS SHRI ANAND AGRAWAL HAD SUBMITTED THE AFFIDAVIT STATING THAT THE D OCUMENTS FOUND DURING THE COURSE OF SEARCH F R OM HIS PREMISES BELONGED TO HIM. THE A . O . HAS NOT EXAMINED SHRI ANAND AGRAWAL TO VERIFY THE CONTENTS OF THE AFFIDAVIT AND THUS THE AVERMENTS MADE IN THE AFF I DAVIT OF SHRI ANAND AGRAWAL HAVE TO BE CONSIDERED TO BE TRUE AND CORRECT . THE CONTENTS OF AFFIDAVIT HAVE GONE UNREBUTTED AND THUS THE SAME NEEDS TO BE ACCEPTED AS TRUE AND CORRECT . RELIANCE ON : I) 30 ITR 181 (SC) MEHTA PARIKH & CO. VS. CIT (P - 63) [VOL . - ILL] THAT T HE CASH, JEWELLERY AND DOCUMENTS WERE FOUND FROM THE POSSESSION OF SMT . SITADEVI, MOTHER OF SHRI ANAND AGRAWAL AND THE OWNERSHIP OF ASSETS AS WELL AS DOCUMENTS WAS IMMEDIATELY ACCEPTED BY THE AFORESAID PERSON. ON THE FACE OF LEGAL EVIDENCE ON RECORD HOLDING OF THE AFORESAID ASSETS TO BE BELONG ING TO ASSESSEE IS UNJUSTIFIED AND UNSUSTAINABLE. FOR THIS PROPOSITION ASSESSEE PLACES RELIANCE ON : I) (2006) 4 SCC 420 DSP, CHENNAI VS. K. INBA SAGARN 10 ITA NO. 12/BLPR/2012. CO NO. 07 /BLPR/2012 II) (1973) 87 ITR 349 CIT VS . DAULAT RAM RAWATMALL III) 90 TT J 821 V.K . BRAHMANKAR VS. JCIT THAT A TTENTION IS INVITED TO PROVISIONS OF SEC. 292C OF I . T . ACT 1961 WHICH RAISES PRESUMPTION AS TO ITS BELONGING OF A PERSON FROM WHOSE POSSESSION AND CONTROL THE ASSETS AND DOCUMENTS ARE FOUND DURING THE COURSE OF SEARCH . IN THE FACTS OF PRESENT CASE SHRI ANAND AGRAWAL HAS AFFIRMED THAT DOCUMENTS, CASH AND ORNAMENTS BELONGS TO HIM ON SAME HAVING BEEN FOUND FROM HIM IN THE COURSE OF SEARCH. ON ABOVE FACTS THERE IS NO ROOM TO CONSIDER THAT DOCUMENTS, CASH AND ORNAMENTS BELONG TO ASSESSEE IN VIEW OF AFORESAID STATUTORY PROVISIONS . THAT P ERUSAL OF SATISFACTION NOTE REFERS TO ONLY PAPERS BELONGING TO ASSESSEE. IT NOWHERE SAYS THAT CASH AND ORNAMENTS FOUND AT THE PREMISES OF SHR I ANAND AGRAWAL ARE BELONGING TO ASSESSEE. THE ADDIT ION FOR CASH AND ORNAMENTS IS UNJUSTIFIED AND UNSUSTA I NABLE . THAT T HE PROTECTIVE ASSESSMENT MADE BY A . O. IN THE CASE OF SHRI ANAND AGRAWAL WAS CHALLENGED IN APPEAL FILED BY HIM BEFORE HON ' BLE CIT(A) , RAIPUR . IN THE APPELLATE PROCEEDINGS THE HON ' BLE CIT(A) HAS HELD THAT INCOME AS OFFERED IN THE RETURNS OF INCOME U/S 153A OF I . T . ACT 1961 I S LIABLE TO BE ASSESSED ON SUBSTANT I VE BAS I S AND NOT ON PROTECTIVE BASIS AS CONCLUDED BY AO . THE AFORESAID ORDER IN THE APPELLATE PROCEEDINGS OF SHRI ANAND AGRAWAL HAS ACHIEVED FINALITY AS IT IS NOT UNDER CHALLENGE BY REVENUE AUTHORITIES IN APPEAL BEFORE ITA T . THE SUBSTANTIVE ASSESSMENT AS DIRECTED BY CIT(A) HAVING ACHIEVED FINALITY THE VERY SAM E INCOME CANNOT BE ASSESSED AT THE HANDS OF ASSESSEE . IT IS ELEMENTARY PRINCIPLE OF LAW THAT SAME INCOME CANNOT BE ASSESSED TWICE . 11 ITA NO. 12/BLPR/2012. CO NO. 07 /BLPR/2012 RELIANCE ON : I) (2002) 254 ITR 0606 CIT VS. NARENDRA DOSHI THAT I N THE ORDER PASSED BY HON'BLE CIT(A) AT PARA 6 GROUND OF APPEAL OF ASSESSEE CHALLENGING THE VALIDITY OF ASSESSMENT U/S 153C OF LT . ACT 1961 HAS BEEN DECIDED IN FAVOUR OF ASSESSEE. THE GROUND OF VALIDITY OF ASSESSMENT IS NOT UNDER CHALLENGE BY REVENUE AUTH ORITIES I N APPEA L FILED BEFORE HON'BLE IT AT FOR ASSTT. YEAR 2003 - 04 TO 2008 - 09, IN VIEW THEREOF ADJUDICATION OF GROUND IN RESPECT TO ADDITION ON MERIT IS OF ACADEMIC NATURE. THAT I N THE CASE OF ASSESSEE ASSESSMENT HAS BEEN FRAMED PURSUANCE TO NOTICE ISSUED UNDER SECTION 153C OF LT . ACT 1961 . IN THE COURSE OF SEARCH UNDER SECT I ON 132(1) OF I T . ACT 1961 AT THE PREMISES OF SHRI ANAND AGRAWAL NO INCRIMINATING MATERIAL OR EVIDENCE BELONGING TO ASSESSEE WAS FOUND. THE PERUSAL OF ASSESSMENT ORDER OF SHR I ANAND AGRAWAL WOULD ALSO INDICATE THAT ADDITION MADE BY AO . I S NOT ON THE BASIS OF ANY MATER I AL OR EVIDENCE FOUND IN THE COURSE OF SEARCH BUT HAS BEEN ASSESSED TO TAX AS THE AFORESAID SUM WAS OFFERED BY SHRI ANAND AGRAWAL IN HIS RETURN F I LED PURSUANCE TO N OTICE ISSUED UNDER SECTION 153A OF LT . ACT 1961. THAT I N THE COURSE OF SEARCH NO INCRIMINATING MATERIAL OR EVIDENCE HAS BEEN FOUND TO SHOW THAT THE ASSETS FOUND AT THE PREMISES OF SHRI ANAND AGRAWAL BELONGED TO ASSESSEE OR HAVING BEEN ACQUIRED OUT OF MO NEY FLOWN FROM ASSESSEE . THE ADDITION MADE THUS IS PR I MA FACIE UNJUSTIF I ED AND UNSUSTAINABLE. THAT I N CASE OF ASSESSEE ACTION U/S 132(1) OF I T . ACT 1961 WAS TAKEN ALONG WITH THE BUSINESS CONCERN BELONGING TO FAMILY OF BROTHERS OF ASSSESSEE I N 12 ITA NO. 12/BLPR/2012. CO NO. 07 /BLPR/2012 FEBRUARY ON 04/02/2010 . THE EMPLOYER OF ASSESSEE WAS MADE AWARE OF ACTION U/S 132(1) OF I T . ACT 1961 AT HIS PREMISES . ASSESSEE HAS BEEN PROMOTED AS PRINCIPAL SECRETARY SUBSEQUENT TO SEARCH . THE AFORESAID FACT DEMONSTRATES HIS INTEGRITY AND COMMITMENT TO SERVICE TO GOV ERNMENT . THE ABOVE FACTS GIVE SUBSTANTIAL CREDENCE TO VARIOUS SUBMISSIONS MADE THAT THERE I S NO SCOPE FOR MAKING ANY ADDITION TO THE INCOME RETURNED AT THE HANDS OF ASSESSEE . THAT I N THE CASE OF ASSESSEE NOTICE UNDER SECTION 153C OF THE I.T. ACT, 1961 IS BAD IN LAW IN THE ABSENCE OF THERE BEING VALID SATISFACTION RECORDED BY A.O. OF PERSON SEARCHED. FOR THIS PROPOSITION ASSESSEE PLACES RELIANCE ON THE FOLLOWING DECISIONS. SATISFACTION NOTE RECORDED FOR ISSUE OF NOTICE U/S 153C REVEALS THAT IT IS RECORDED AS A.O. OF ASSESSEE. IT IS NOT THE SATISFACTION OF THE A.O. OF PERSON SEARCHED. RELIANCE ON I) ITAT ORDER IN ITA NO. 4228/DEL/2011 IN THE CASE OF M/S SHIELD HOME PVT. LTD. VIDE ORDER DATED 24 - 02 - 2016. II) HONBLE MADHYA PRADESH HIGH COURT ORDER IN ITA NO. 44/2011 IN THE CASE OF M/S MECHMEN VIDE ORDER DATED 10 - 07 - 2015. III) ITA NO. 254 OF 2014 JUDGEMENT (PER HONBLE THE CHIEF JUSICE SHRI KALYAN JYOTI SENGUPTA). IV) CBDT CIRCULAR NO. 24/2015 DATED 31 - 12 - 2015. THAT I T IS SETTLED POSITION OF LAW THAT ONUS LIES ON REVENUE AUTHORITIS TO SHOW THAT SHRI ANAND AGRAWAL IS BENAMI OF ASSESSEE. NO EVIDENCE ON RECORD ARE FOUND IN THE COURSE OF SEARCH TO SHOW THAT SHRI ANAND AGRAWAL IS BENAMIDAR OF ASSESSEE. IN FACT DEPARTMENT HAS MADE SEARCH ON SHRI ANAND AGRAWAL AS INDEPENDENT GR OUP AND THIS ITSELF DISPEL THE DOUBT 13 ITA NO. 12/BLPR/2012. CO NO. 07 /BLPR/2012 OF A.O. THAT SHRI ANAND AGRAWAL IS BENAMIDAR OF SHRI B.L. AGRAWAL. RELIANCE ON: I) 1977 AIR (SC) KRISHNAQNAND AGNIHOTRI VS. STATE OF M.P. THAT I T IS SETTLED POSITION OF LAW THAT APPARENT IS REAL. ASSES FOUND FROM SHRI ANAND AGRAWAL IN SEARCH ACCEPTED BY HIM TO BE BELONGING TO HIM. HE OFFERED THE VALUE OF ASSETS FOUND AS INCOME AND PAID TAXES ON SUCH ASSETS FOUND FROM HIM IN 153A PROCEEDINGS. RELIANCE ON: I) (1973) 87 ITR 349 (SC) CIT VS. DAULAT RAM RAWATMULL. GROUND NO. 2: PROCEEDINGS U/S 153C OF I.T. ACT, 1961. A) NO NOTICE U/S 153C OF I.T. ACT, 1961 HAS BEEN ISSUED IN THE CASE OF ASSESSEE FOR ASSTT. YEAR 2009 - 10. PERUSAL OF SATISFACTION NOTE PLACED IN PAPER BOOK (P - 11) (VOL. - I) CLEARLY INDICATES THAT SATISFACT ION HAS BEEN DRAWN BY A.O. FOR INITIATION PROCEEDINGS U/S 153C FOR ASSTT. YEAR 2003 - 04 TO 2008 - 09 AND NOT FOR ASSTT. YEAR 2009 - 10. GROUND MISCONCEIVED. 14. WE HAVE CAREFULLY HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. AT THE OUTSET WE NOTE THAT THE ENTIRE ADDITION IN THIS CASE IN THE HANDS OF THE ASSESSEE IS BASED UPON THE INCOME - TAX RETURN OF SHRI ANAND AGRAWAL FOR THE SAME ASSESSMENT YEAR AND THE INCOME DISCLOSED BY HIM. THIS INCOME HAS ALREADY BEEN ADDED IN THE HANDS OF SHRI ANAND AGRAWAL BY THE A O ON A PROTECTIVE BASIS. IN SHRI ANAND AGRAWALS APPELLATE PROCEEDINGS THE LEARNED CIT(APPEALS) HAS HELD THAT THE SAID INCOME AS OFFERED IN THE RETURNS OF INCOME U/S 153A OF THE I.T. ACT 14 ITA NO. 12/BLPR/2012. CO NO. 07 /BLPR/2012 IS LIABLE TO BE ASSESSED IN THE HANDS OF SHRI ANAND AGRAWAL ON SUBSTA NTIVE BASIS AND NOT ON PROTECTIVE BASIS AS CONCLUDED BY THE AO. THE AFORESAID ORDER IN THE APPELLATE PROCEEDINGS OF SHRI ANAND AGRAWAL HAS ACHIEVED FINALITY AS IT IS NOT UNDER CHALLENGE BY THE REVENUE AUTHORITIES IN APPEAL BEFORE THE ITAT. IN SUCH CIRCUMST ANCES WHEN EXACTLY THE SAME INCOME HAS BEEN ADDED IN THE HANDS OF ANOTHER ASSESSEE ON SUBSTANTIVE BASIS AND THE REVENUE HAS ACCEPTED THE SAME AND DECIDED NOT TO FILE APPEAL AGAINST THE SAME , ASSESSING THE SAME INCOME AGAIN IN THE HANDS OF ANOTHER PERSON ALSO I.E. THE ASSESSEE IN THIS CASE, IS TOTALLY UNSUSTAINABLE IN LAW. IT IS SETTLED LAW THAT THE SAME INCOME CANNOT BE ADDED TWICE IN THE HANDS OF DIFFERENT PERSONS. HENCE IN OUR CONSIDERED OPINION WHEN THE REVENUE HAS CONSC IOUSLY CHOSEN TO ACCEPT THE APPELLATE ORDER FOR SUBSTANTIVE ASSESSMENT OF THE SAME INCOME ON SUBSTANTIVE BASIS IN THE HANDS OF SHRI ANAND AGRAWAL, IT CANNOT AT THE SAME TIME APPEAL FOR ADDING THE SAME INCOME IN THE HANDS OF ANOTHER PERSON I.E. THE ASSESSEE . THUS IN VIEW OF THE ABOVE SAID DISCUSSION THIS APPEAL BY THE REVENUE IS NOT AT ALL SUSTAINABLE IN LAW. 15. FURTHER MORE WE FIND THAT THE ADDITION IN THE HANDS OF THE ASSESSEE IS BASED UPON A RED SUITCASE FOUND IN THE BED ROOM OF SMT. SITADEVI AGRAWAL (MOTHE - IN - LAW OF THE ASSESSEE) WHICH WAS FOUND DURING THE SEARCH AT THE HOUSE OF SHRI ANAND AGRAWAL, BROTHER - IN - LAW OF THE ASSESSEE. THE SAID SUITCASE WAS CONTAINING SOME DOCUMENTS AND CASH AND JEWELLERY.L THE AMOUNT REFLECTED IN THE DOCUMENTS AS WELL AS CASH AND JEWELLERY WERE ACCEPTED BY SHRI ANAND KUMAR AGRAWAL AS BELONGING TO HIM. HE HAS OWNED UP THE ENTIRE AMOUNTS, REFLECTED THE SAME IN THE RETURN OF INCOME AND THE SAME HAS BEEN ADDED IN HIS HANDS. IN SUCH CIRCUMSTANCES THERE DOES NOT REMAIN ANY BASIS OF MAKING ANY ADDITION IN THE HANDS OF THE ASSESSEE. 16. SECTION 292C OF THE I.T. ACT PROVIDES AS UNDER : 292C. 99 [(1)] WHERE ANY BOOKS OF ACCOUNT, OTHER DOCUMENTS, MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING ARE OR IS FOUND IN THE POSSESSION OR CONTROL 15 ITA NO. 12/BLPR/2012. CO NO. 07 /BLPR/2012 OF ANY PERSON IN THE COURSE OF A SEARCH UNDER SECTION 132 1 [OR SURVEY UNDER SECTION 133A ], IT MAY, IN ANY PROCEEDING UNDER THIS ACT, BE PRESUMED ( I ) THAT SUCH BOOKS OF ACCOUNT, OTHER DOCUMENTS, MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING BELONG OR BELONGS TO SUCH PERSON; ( II ) THAT THE CONTENTS OF SUCH BOOKS OF ACCOUNT AND OTHER DOCUMENTS ARE TRUE; AND ( III ) THAT THE SIGNATURE AND EVERY OTHER PART OF SUCH BOOKS OF ACCOUNT AND OTHER DOCUMENTS WHICH PURPORT TO BE IN THE HANDWRITING OF ANY PARTICULAR PERSON OR WHICH MAY REASONABLY BE ASSUMED TO HAVE BEEN SIGNED BY, OR TO BE IN THE HANDWRITING OF, ANY PARTIC ULAR PERSON, ARE IN THAT PERSONS HANDWRITING, AND IN THE CASE OF A DOCUMENT STAMPED, EXECUTED OR ATTESTED, THAT IT WAS DULY STAMPED AND EXECUTED OR ATTESTED BY THE PERSON BY WHOM IT PURPORTS TO HAVE BEEN SO EXECUTED OR ATTESTED.] 2 [(2) WHERE ANY BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ASSETS HAVE BEEN DELIVERED TO THE REQUISITIONING OFFICER IN ACCORDANCE WITH THE PROVISIONS OF SECTION 132A , THEN, THE PROVISIONS OF SUB - SECTION (1) SHALL APPLY AS IF SUCH BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ASSETS WHICH HAD BEEN TAKEN INTO CUSTODY FROM THE PERSON REFERRED TO IN CLAUSE (A) OR CLAUSE (B) OR CLAUSE (C), AS THE CASE MAY BE, OF SUB - SECTION (1) OF SECTION 132A , HAD BEEN FOUND IN THE POSSESSION OR CONTROL OF THAT PERSON IN THE COURSE OF A SEARCH UNDER SECTION 132 .] 17. THE ABOVE SECTION PROVIDES FOR A PRESUMPTION IN LAW THAT IN CASE OF THE SEARCH THE DOCUMENTS, MONEY, JEWELLERY ETC. FOUND BELONGED TO THE PERSON SEARCHED . IN THE PRESENT CASE SHRI ANAND AGRAWAL HAS NOT AT ALL DISPUTED THIS PRESUMPTION, RATHER HE HAS SUPPORTED THE PRESUMPTION BY ACCEPTING THE ENTIRE AMOUNTS REFLECTED IN THE SAID SEARCH AS HIS OWN INCOME AND OFFERING THE SAME IN HIS RETURN OF INCOME WHICH HAS BEEN D ULY ACCEPTED BY THE REVENUE IN APPELLATE PROCEEDINGS . SHRI ANAND AGRAWAL HAS ALSO FILED AN AFFIDAVIT OWNING THE ENTIRE CONTENTS OF THE SAID SUITCASE AS BELONGING TO HIMSELF. THUS IN THIS VIEW ALSO ON THE ANVIL OF SECTION 292C OF THE I.T. ACT THERE IS NO B ASIS FOR CONSIDERING THIS SUM AS ADDITION IN THE HANDS OF THE ASSESSEE. 18. IT IS FURTHER NOTED THAT THIS ASSESSMENT IS FRAMED PURSUANT TO NOTICE U/S 153C OF THE I.T. ACT. BEFORE THE ASSESSMENT WAS FRAMED UNDER THIS SECTION IN THIS CASE , THERE WAS A SEAR CH CONDUCTED ON 04 - 02 - 2010 AT THE ASSESSEES PREMISES. IN THIS SEARCH ALSO NO INCRIMINATING MATERIAL OR EVIDENCE RELATING TO 16 ITA NO. 12/BLPR/2012. CO NO. 07 /BLPR/2012 THE ADDITION MADE IN THIS CASE WAS FOUND. THUS FROM THE A BOVE IT IS CLEAR THAT THE PLEA OF THE REVENUE AUTHORITY THAT SHRI ANAND A GRAWAL IS A BENAMIDAR OF ASSESSEE IS DEVOID OF ANY COGENCY. NO EVIDENCE WHATSOEVER HAS BEEN FOUND IN ANY OF THE SEARCH TO SHOW THAT SHRI ANAND AGRAWL IS A BENAMIDAR OF THE ASSESSEE. THE CASE LAWS REFERRED BY THE LEARNED COUNSEL OF THE ASSESSEE ABOVE DULY S UPPORT THE CASE OF THE ASSESSEE. IN PARTICULAR WE MAY REFER TO THE FOLLOWING CASE LAWS IN THIS REGARD : I) DSP CHENNAI VS. K. INBASAGARAN (2006) 1 SUPREME COURT CASES 420 (HEAD NOTES ONLY): PREVENTION OF CORRUPTION ACT, 1988 SS. 13(2) R/W 13(1)(C) - ACQUISITION OF ASSETS DISPROPORTIONATE TO KNOWN SOURCE OF INCOME JOINT POSSESSION EFFECT OF OTHER PARTY CLAIMING OWNERSHIP/CONTRIBUTION ACCUSED PUBLIC SERVANT AND HIS WIFE LIVING TOGETHER PROSECUTION DISCHARGED ITS INITIAL BURDEN BY PROVING RECOVE RY OF UNACCOUNTED FOR MONEY AND OTHER ASSETS FROM PREMISES JOINTLY IN POSSESSION OF ACCUSED AND HIS WIFE ACCUSED ON HIS PART SATISFACTORILY ESTABLISHING THAT THE MONIES AND ASSETS RECOVERED BELONGED TO HIS WIFE WHICH SHE AMASSED FROM THE BUSINESS RUN BY HER SEPARATELY IN ABSENCE OF ANY EVIDENCE THAT THE ASSETS BELONGED TO THE ACCUSED, HELD, HE CANNOT BE HELD LIABLE UNDER PC ACT FOR SUCH ASSETS. II) KRISHNANAND V. STATE OF M.P. AIR 977 SUPREME COURT 796. THE BURDEN OF SHOWING THAT A PARTICULAR TRANSACTION IS BEHAMI AND THE OWNER IS NOT THE REAL OWNER ALWAYS RESTS ON THE PERSON ASSER T ING IT TO BE SO AND THIS BURDEN HAS TO BE STRICTLY DISCHARGED BY ADDUCING LEGAL EVIDENCE OF A DEFINITE CHARACTER WHICH WOUL D EITHER DIRECTLY PROVE THE FACT OF BENAMI OR ESTABLISH CIRCUMSTANCES UNERRINGLY AND REASONABLY RAISING AN INFERENCE OF THAT FACT. THE ESSENCE OF BENAMI IS THE INTENTION OF THE PARTIES AND NOT UNOFTEN, SUCH INTENTION IS SHROUDED IN A THICK VEIL WHICH CANN OT BE EASILY PIERCED THROUGH. BUT SUCH DIFFICULTIES DO NOT RELIEVE THE PERSON ASSERTING THE TRANSACTION TO BE BENAMI OF THE SERIOUS ONUS THAT RESTS ON HIM, NOR JUSTIFY THE ACCEPTANCE OF MERE CONJECTURES OR SURMISES AS A SUBSTITUTE FOR PROOF. IT IS NOT ENOU GH MERELY TO SHOW CIRCUMSTANCES WHICH MIGHT CREATE SUSPICION, BECAUSE THE COURT CANNOT DECIDE ON THE BASIS OF SUSPICION. IT HAS TO ACT ON LEGAL GROUNDS ESTABLISHED BY EVIDENCE. AIR 1974 SC 171 (PARA 26). 17 ITA NO. 12/BLPR/2012. CO NO. 07 /BLPR/2012 IN THE INSTANT CASE THOUGH THE PROSECUTION ALLE GED THAT CERTAIN AMOUNS LYING IN THE NAME OF ACCUSEDS WIFE S WAS AN ASSET BELONGING TO THE ACCUSED, NO EVIDENCE AT ALL WAS LED ON THE SIDE OF THE PROSECUTION TO SHOW THAT THE MONIES LYING IN FIXED DEPOSIT IN HER NAME WAS PROVIDED BY THE ACCUSED. HOWSOEVER STRONG MAY BE THE SUSPICION OF THE COURT IN THIS CONNECTION, IT CANNOT TAKE THE PLACE OF PROOF. BEYOND RAISING SUSPICION AND DOUBT IN THE MIND OF THE COURT, THE PROSECUTION HAS NOT BEEN ABLE TO ADDUCE ANY LEGAL EVIDENCE OF A DEFINITE CHARACTER WHICH WOULD ESTABLISH THE BENAMI CHARACTER OF THIS BANK ACCOUNT. ON THE CONTRARY, THE EVIDENCE LED ON BEHALF OF THE ACCUSED SHOWS THAT S HAD MEANS OF HER OWN. III) CIT VS. DAULAT RAM RAWATMULI 87 ITR 349 (SC). THE ONUS TO PROVE THAT THE APPARENT IS NOT THE REAL IS ON TH E PARTY WHO CLAIMS IT TO BE SO. AS IT WAS THE DEPARTMENT WHICH CLAIMED THAT THE AMOUNT OF FIXED DEPOSIT RECEIPT BELONGED TO THE RESPONDENT FIRM EVEN THOUGH THE RECEIPT HAD BEEN ISSUED IN THE NAME OF B, THE BURDEN LAY ON THE DEPARTMENT TO PROVE THAT THE RE SPONDENT WAS THE OWNER OF THE AMOUNT DESPITE THE FACT THAT THE RECEIPT WAS IN THE NAME OF B. A SIMPLE WAY OF DISCHARGING THE ONUS AND RESOLVING THE CONTROVERSY WAS TO TRADE THE SOURCE AND ORIGIN OF THE AMOUNT AND FIND OUT ITS ULTIMATE DESTINATION. SO FAR A S THE SOURCE IS CONCERNED, THERE IS NO MATERIAL ON THE RECORD TO SHOW THAT THE AMOUNT CAME FROM THE COFFERS OF THE RESPONDENT - FIRM OR THAT IT WAS TENDERED ON BEHALF OF THE RESPONDENT. AS REGARDS THE DESTINATION OF THE AMOUNT THERE IS NOTHING TO SHOW THAT I T WENT TO THE COFFERS OF THE RESPONDENT. ON THE CONTRARY THERE IS POSITIVE EVIDENCE THAT THE AMOUNT WAS RECEIVED BY B ON 22 ND JAN,M 1946. IT WOULD THUS FOLLOW THAT BOTH AS REGARDS THE SOURCE AS WELL AS THE DESTINATION OF THE AMOUNT, THE MATERIAL ON THE REC ORD GIVES NO SUPPORT TO THE CLAIM OF THE DEPARTMENT. THE AAC ALSO TOOK INTO ACCOUNT THE FACT THAT THE OFFICE OF THE CENTRAL BANK, IS IN THE SAME BUILDING IN WHICH THERE ARE THE BUSINESS PREMISES OF THE RESPONDENT - FIRM. THIS WAS, A WHOLLY EXTRANEOUS AND IR RELEVANT CIRCUMSTANCES FOR DETERMINING THE OWNERSHIP OF RS.5,00,000 WHICH HAD BEEN DEPOSITED IN FIXED DEPOSIT IN THE NAME OF B. THERE SHOULD, BE SOME DIRECT NEXUS BETWEEN THE CONCLUSION OF FACT ARRIVED AT BY THE AUTHORITY CONCERNED AND THE PRIMARY FACTS UP ON WHICH THAT CONCLUSION IS BASED. 19. THE ABOVE CASE LAWS FULLY SUPPORT THE CASE OF THE ASSESSEE. THE LAW EXPOUNDED HEREIN ABOVE IS THAT WHEN THE REVENUE IS ALLEGING THAT THE APPARENT IS NOT REAL TH EN ONUS LIES UPON THE REVENUE TO PROVE THE SAME . I N THE PRESENT 18 ITA NO. 12/BLPR/2012. CO NO. 07 /BLPR/2012 CASE REVENUE HAS TOTALLY FAILED TO PROVE THE SAME. THE DOCUMENTS, CASH & JEWELLERY INVOLVED HAVE BEEN FOUND AT THE TIME OF SEARCH AT THE PREMISES OF SHRI ANAND AGRAWAL, SHRI ANAND AGRAWAL HAS OWNED UP THE SAME, HE HAS FILED AN AFFIDAVIT IN THIS REGARD, HE HAS FILED THE RETURN OF INCOME IN THIS REGARD, THE SAME HAS BEEN ADDED IN HIS HANDS ON SUBSTANTIVE BASIS AS PER THE APPELLATE ORDER OF THE CIT(APPEALS), THE REVENUE HAS DECIDED NOT TO APPEAL AGAINST THE SAID ORDER, THUS THE ADDITION OF THIS AMOUNT IN THE HANDS OF SHRI ANAND AGRAWAL HAS REACHED FINALITY. THERE IS NO EVIDENCE WHATSOEVER FOUND IN THE COURSE OF THE SEARCH THAT THAT SHRI ANAND AGRAWAL IS A BENAMIDAR OF THE ASSESSEE, RATHER THE DEPARTMENT HAS MADE SEARCH ON SHRI A NAND AGRAWAL AS I NDEPENDENT GROUP, THIS ITSELF DISPELS THE DOUBT OF THE AO THAT SHRI ANAND AGRAWAL IS A BENAMIDAR OF THE ASSESSEE. IN THE BACKGROUND OF AFORESAID DISCUSSION AND PRECEDENT, WE HOLD AS UNDER : 1. ONCE THE SAME AMOUNT HAS BEEN ADDED ON SUBSTANTIVE BASIS BY THE APPELLATE ORDER IN THE CASE OF SHRI ANAND AGRAWAL AND REVENUE HAS CHOSEN NOT TO APPEAL AGAINST THE SAME, THIS APPEAL BY THE REVENUE IS NOT AT ALL SUSTAINABLE WHICH SEEKS TO ADD THE SAME AMOUNT AGAIN IN THE HANDS OF THE ASSESSEE. 2. REVENUE HAS TOTALLY FAILE D TO PROVE THAT SHRI ANAND AGRAWAL WAS A BENAMIDAR OF THE ASSESSEE. IN SUCH CIRCUMSTANCES, IN OUR CONSIDERED OPINION, THERE IS NO INFIRMITY IN THE ORDER OF THE LEARNED CIT(APPEALS). ACCORDINGLY WE UPHOLD THE SAME. 20. S INCE WE HAVE ALREADY DECIDED THE ISSUE ON MERITS, IN OUR CONSIDERED OPINION THE ADJUDICATION ON VALIDITY OF ASSESSMENT IS ONLY OF ACADEMIC INTEREST. HENCE WE ARE NOT ENGAGING INTO THE SAME. 21. IN THE RESULT, THIS APPEAL FILED BY THE REVENUE STANDS DISMISSED. 19 ITA NO. 12/BLPR/2012. CO NO. 07 /BLPR/2012 22. CROSS OBJECTION : IN THE CROSS OBJECTION THE ASSESSEE HAS ONLY SUPPORTED THE ACTION OF THE LEARNED CIT(APPEALS) . SINCE WE HAVE ALREADY UPHELD THE ORDER OF LEARNED CIT(APPEALS) IN THE REVEUES APPEAL ABOVE, THE CROSS OBJECTION BECOMES INFRUCTUOUS AND HENCE THE SAME IS DISMISS ED AS INFRUCTUOUS. 23. IN THE RESULT, THE APPEAL OF THE REVENUE AS WELL AS THE CROSS OBJECTION OF THE ASSESSEE BOTH ARE DISMISSED. ORDER PRONOUNCED ON THIS 9 TH JAN.,2017. SD/ - SD/ - ( C.M. GARG) ( SHAMIM YAHYA ) JUDICIAL MEMBER. ACCOUNTANT MEMBER. DATED: 9 TH JAN.,2017. COPY FORWARDED TO : 1. SHRI B.L. AGRAWAL, NEAR RADHA KRISHNA SAW MILLS, NEW TIMBER MARKET, FAFADIH, RAIPUR. 2. A.C.I.T. - 2(1) , RAIPUR. 3. C.I.T., RAIPUR. 4. CIT(APPEALS), RAIPUR. 5. D.R., ITAT, RAIPUR. 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR. WAKODE.