Rajinderkaur Jasbirsingh Sethi, Pune V. Dy. CIT, Central Circle 2(3), Pune

ITA 1234/PUN/2013

• Counselvise Citation: 123424514 RSA 2013
• Duration Of Justice: 1 year(s) 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-03-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2000-2001
• Appeal Filed On: 31-05-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SANDEEP GARG
• Assessee Lawyers: K N BORA
• Keywords: Unexplained cash credit; Unexplained expenditure; Search and seizure; Loose papers

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, PUNE BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NOS.1232 TO 1238/PN/2013 (ASSESSMENT YEARS : 1998-99 TO 2004-05) SHRI RAJINDERKAUR JASBIRSINGH SETHI, SETHI NIWAS, 103/2, PRABHAT ROAD, PUNE 411004 PAN NO.AVXPS0430Q .. APPELLANT VS. DY.CIT, CENTRAL CIRCLE-2(3), PUNE .. RESPONDENT ASSESSEE BY : SHRI SUHAS P, BORA & SHRI K.N. BORA DEPARTMENT BY : SHRI SANDEEP GARG, CIT DATE OF HEARING : 20-03-2015 DATE OF PRONOUNCEMENT : 27-03-2015 ORDER PER R.K. PANDA, AM : THE ABOVE BATCH OF 7 APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 20-03-2013 OF THE CIT(A) CENTRAL, PUNE RELATING TO ASSESSMENT YEARS 1998-99 TO 2004-0 5 RESPECTIVELY. FOR THE SAKE OF CONVENIENCE, THESE A PPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON O RDER. ITA NO. 1232/PN/2013 (A.Y. 1998-99) : 2. ALTHOUGH A NUMBER OF GROUNDS HAVE BEEN TAKEN BY THE ASSESSEE, THEY ALL RELATE TO THE DISALLOWANCE OF EX PENSES OF RS.60,000/- ON ADHOC BASIS BY THE ASSESSING OFFICER AND UPHELD BY 2 THE CIT(A). SIMILAR DISALLOWANCE HAS BEEN MADE BY THE ASSESSING OFFICER IN SUBSEQUENT ASSESSMENT YEARS ALSO, THE DE TAILS OF WHICH ARE AS UNDER : A.Y. AMOUNT CLAIMED IN THE P&L A/C. (RS.) AMOUNT DISALLOWED (RS.) 1999-2000 91,551/- 61,000/- 2000-2001 96,992/- 65,000/- 2001-2002 81,419/- 65,000/- 2002-2003 72,430/- 50,000/- 2003-2004 80,624/- 54,000/- 2004-2005 75,138/- 50,000/- 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS AN INDIVIDUAL AND DERIVES INCOME FROM INTEREST AND AGR ICULTURAL INCOME. A SEARCH AND SEIZURE ACTION U/S.132 OF THE I.T. ACT WAS CONDUCTED ON 19-07-2003. DURING THE COURSE OF SEAR CH, AN AMOUNT OF RS.1,18,500/- WAS FOUND FROM THE RESIDENTIAL PRE MISES OF THE ASSESSEE OUT OF WHICH CASH OF RS. 1 LAKH WAS SEIZED AS THE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF THE SAID CASH DURIN G THE SEARCH PROCEEDINGS. SIMILARLY, JEWELLERY AND GOLD ORNAMEN TS VALUED AT RS.11,41,457/- WERE FOUND AT THE RESIDENTIAL PREMIS ES AS VALUED BY THE REGISTERED VALUER, OUT OF WHICH JEWELLERY AND G OLD ORNAMENTS VALUED AT RS.4,87,325/- WERE SEIZED. FURTHER, CERT AIN LOOSE PAPERS ALONG WITH FDRS WORTH RS.45,000/- WERE ALSO SEIZED FROM THE RESIDENTIAL PREMISES OF THE ASSESSEE. CASH OF RS.5 55/- WAS FOUND AT THE BUSINESS PREMISES OF M/S. JASBIR ENTERPRISES AT 1879, KUMAR CASTLE, CONVENT STREET, CAMP, PUNE. 3 3.1 IN RESPONSE TO NOTICE U/S.153A(A) OF THE I.T. A CT, THE ASSESSEE FILED HER RETURN OF INCOME ON 24-03-2006 DECLARING INCOME AT RS.64,250/- AND AGRICULTURAL INCOME OF RS.38,000/-. THE RETURN WAS ACCOMPANIED BY STATEMENT OF COMPUTATION OF INCOME, PROFIT AND LOSS ACCOUNT, BALANCE SHEET AND OTHER DETAILS. THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS NOTED T HAT THE ACCOUNTS WERE PREPARED ONLY IN THE MONTH OF MARCH 2006 PARTL Y ON THE BASIS OF BANK ACCOUNTS AND PARTLY WITHOUT ANY BASIS. FUR THER, THE ASSESSEE HAS NOT FILED ANY RETURN OF INCOME FOR A.Y. 1998-99 AS REQUIRED U/S.139 OF THE I.T. ACT. ON VERIFICATION OF THE EX PENSES CLAIMED IN THE PROFIT AND LOSS ACCOUNT FILED ALONG WITH THE RE TURN OF INCOME, THE ASSESSING OFFICER NOTED THAT ASSESSEE HAD CLAIMED T HE EXPENSES OF RS.89,750/-. ACCORDING TO THE ASSESSING OFFICER FO R EARNING THE INTEREST INCOME FROM THE PRIVATE PARTIES, THE EXPEN SES CLAIMED ARE EXCESSIVE AND UNVERIFIABLE. HE THEREFORE DISALLOWE D 2/3 RD OF SUCH EXPENSES AT RS.60,000/- ON ESTIMATE BASIS AND MADE ADDITION TO THE TOTAL INCOME OF THE ASSESSEE. 4. BEFORE THE CIT(A) IT WAS SUBMITTED THAT THE ASSE SSEE IS A FEMALE OF 40 YEARS OLD AND REQUIRES TO SPEND MONEY FOR DAY-TO-DAY ACTIVITY OF COLLECTING THE AMOUNT AND MAKE THE CORR ESPONDENCE WITH THE PERSONS TO WHOM THE MONEY HAVE BEEN ADVANCED. FURTHER, THE EXPENSES ON ACCOUNT OF CONVEYANCE, COMMISSION, POST AGE, SALARY AND OTHER MISCELLANEOUS EXPENSES ARE GENERAL IN NAT URE WITHOUT WHICH THE ACTIVITIES OF EARNING THE INTEREST INCOME FROM PRIVATE 4 PARTIES CANNOT BE MANAGED. IT WAS ARGUED THAT SINC E THE AMOUNT HAS BEEN ADVANCED IN EARLIER YEARS AND RECOVERY OF INTE REST AND AMOUNT WERE TO BE MADE THROUGH THE EMPLOYEES, THE CLAIM OF EXPENSES MADE BY THE ASSESSEE ARE GENUINE AND REQUIRED TO BE ALLOWED IN FULL. HOWEVER, THE ASSESSING OFFICER DID NOT CONSIDER ALL THESE ASPECTS AND MADE THE ESTIMATED DISALLOWANCE. IT WAS ACCORD INGLY ARGUED TO DELETE THE DISALLOWANCE. 5. BASED ON THE ARGUMENTS ADVANCED BY THE ASSESSEE, THE THEN LD.CIT(A) VIDE HIS LETTER DATED 08-02-2007 CALLED F OR A REMAND REPORT FROM THE ASSESSING OFFICER AND ASKED HIM TO EXAMINE THE FACTUAL CONTENTIONS OF THE ASSESSEE AND SUPPORTING PROOF IN THE FORM OF FACTS ETC. PRODUCED BEFORE HIM. 5.1 THE LD.CIT(A) NOTED THAT A LETTER DATED 13-02-2 008 WAS RECEIVED FROM THE THEN ACIT, CENTRAL CIRCLE-2(3) FO RWARDING AN UNSIGNED LETTER DATED 18-03-2007 FROM THE JCIT (OSD )-V CENTRAL CIRCLE-2(3), PUNE WHEREIN THE JCIT HAD EVIDENTLY TA KEN THE FOLLOWING VIEW : IN THE PRESENT PROCEEDINGS THAT ASSESSEE CLAIMS THAT SHE H AD MAINTAINED THE VOUCHERS AND EXPENSES, BUT THE FACTS T HAT THESE VOUCHERS WERE NOT FOUND AT THE TIME OF SEARCH. AFTER TAKING INTO CONSIDERATION THE AMOUNT OF INCOME SHOWN AND EXPENSE C LAIMED IN THE RETURNS IT SEEMS THAT DISALLOWANCE OF 2/3 RD PERCENTAGE IS EXCESSIVE AND MAY BE RESTRICTED TO 1/3 RD OF THE CLAIM IT DEEMED FIT. 5.2 SINCE THE REPORT WAS UNSIGNED THE THEN CIT(A) A DDRESSED A LETTER DATED 27-07-2010 TO THE ACIT CENTRAL CIRCLE- 2(3) POINTING OUT THAT THE REMAND REPORT DATED 09-03-2007 SUBMITT ED BY THE THEN 5 JCIT WAS UNSIGNED. THEREAFTER ANOTHER REMAND REPOR T DATED 08-09- 2010 WAS RECEIVED BY THE CIT(A) FROM THE ACIT, CENT RAL CIRCLE- 2(3), PUNE IN WHICH THE ASSESSING OFFICER REPORTED AS UNDER : (I) ISSUE OF DISALLOWANCES OF EXPENSES : IN THE ASSESSMENT ORDER THE ASSESSING OFFICER HAS MADE CERTA IN DISALLOWANCES OF THE EXPENSES CLAIMED FROM THE PROFIT AND LOSS A/C. THE ASSESSING OFFICER DISALLOWED THESE EXPENSES BEING THEY ARE EXCESSIVE AND UNVERIFIABLE DISALLOWANCE ARE MADE AS UND ER : THE ASSESSEE WAS ASKED TO PRODUCE THE VOUCHERS RELATED WIT H THESE EXPENSES. HOWEVER, THE ASSESSEE EXPRESSED INABILITY TO PRO DUCE SUCH VOUCHERS. UNDER THESE CIRCUMSTANCES THE CONTENTION OF THE ASSESSEE THAT THE DISALLOWANCE WAS EXCESSIVE AND UNREASONABL E IS NOT CORRECT AND HENCE DESERVES TO BE REJECTED. WHEN CLAIMING DEDUCTION FOR ANY EXPENSE, THE ONUS IS ON THE ASSESSEE TO PROVE THE EXPENSES. THIS ONUS HAS NOT BEEN DISCHARGED. 5.3 BASED ON THE SUBSEQUENT REMAND REPORT OF THE AS SESSING OFFICER THE LD.CIT(A) REJECTED THE CLAIM OF EXPENSE S AND DISMISSED THE GROUNDS RAISED BY THE ASSESSEE BY OBSERVING AS UNDER : 5.7 I HAVE GIVEN CAREFUL CONSIDERATION TO ALL THE FACTS BEFORE ME AND THE RIVAL CONTENTIONS OF THE AO AND THE APPELLAN T. UPON PERUSAL OF COPY OF THE RETURN OF INCOME FOR AY 1998-99 FILE D BY THE APPELLANT, IT IS SEEN THAT THE INCOME DECLARED ON ACC OUNT OF INTEREST RECEIVABLE FOR THE YEAR WAS ONLY RS.1,54,000/- AGAINST WHICH AN AMOUNT OR RS.89,750/- HAD BEEN CLAIMED AS EXPENDITUR E WHICH AMOUNTS TO OVER 58% OF THE GROSS INTEREST INCOME. IN TH IS REGARD, I AM IN AGREEMENT WITH THE AO THAT THE EXPENSES CLAIME D ARE QUITE EXCESSIVE. MOREOVER, AS POINTED OUT BY THE AO, BOTH IN THE ASSESSMENT ORDER AND IN THE REMAND REPORT DATED 8/9/201 0, THE ONUS WAS CLEARLY UPON THE APPELLANT TO PROVIDE EVIDEN CE IN SUPPORT OF THE CLAIM. THE APPELLANT WAS NEITHER MAINTAINING ANY BOOKS OF A.Y. EXPENSES DISALLOWED 2004-05 50,000/- 2003-04 54,000/- 2002-03 50,000/- 2001-02 65,000/- 2000-2001 65,000/- 1999-00 61,000/- 1998-99 60,000/- 6 ACCOUNT AT THE RELEVANT TIME NOR ANY SUPPORTING DOCU MENTS SUCH AS BILLS AND VOUCHERS. KEEPING IN VIEW THESE FACTS, I AM OF THE VIEW THAT THERE ARE NO PERSUASIVE REASONS TO INTERFERE WITH THE A SSESSMENT ORDER. AS SUCH, THIS GROUND OF APPEAL IS HEREBY DISMISSED. 6. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSE SSEE IS IN APPEAL BEFORE US. 7. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT WHATEVER BILLS AND VOUCHERS WERE THERE WERE DESTROYED DUE TO FIRE. REFERRING TO PAGES 177 TO 182 OF THE PAPER BOOK THE LD. COUNS EL FOR THE ASSESSEE DREW THE ATTENTION OF THE BENCH TO VARIOUS EVIDENCES FILED TO SHOW THAT FIRE HAS TAKEN PLACE ON 14-03-2009 AT 4.20 PM. HE SUBMITTED THAT DURING THE FIRST REMAND REPORT THE T HEN ASSESSING OFFICER HAD VERIFIED THE BILLS AND VOUCHERS WHICH W ERE PRODUCED BEFORE HIM AND HAD STATED THAT DISALLOWANCE OF 2/3 RD OF EXPENSES IS EXCESSIVE FOR WHICH HE HAD OPINED TO RESTRICT THE S AME TO 1/3 RD OF THE EXPENSES. HE SUBMITTED THAT NON-SIGNATURE BY THE T HEN ASSESSING OFFICER IN THE REMAND REPORT IS NOT A FAULT ATTRIBU TABLE TO THE ASSESSEE. IT IS AN ADMITTED FACT THAT THE BILLS AN D VOUCHERS CANNOT BE PRODUCED AT THIS JUNCTURE AS THESE ARE ALREADY DEST ROYED. HE ACCORDINGLY SUBMITTED THAT A REASONABLE VIEW MAY B E TAKEN. 8. THE LD DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND HEAVILY RELIED ON THE ORDER OF THE CIT(A). HE SUBM ITTED THAT THE ONUS WAS ON THE ASSESSEE TO SUBSTANTIATE WITH EVID ENCE TO THE SATISFACTION OF THE ASSESSING OFFICER REGARDING THE CLAIM OF EXPENSES. SINCE THE ASSESSEE HAS FAILED TO DISCHAR GE THE ONUS CAST 7 ON HIM, THEREFORE, UNDER THE FACTS AND CIRCUMSTANCE S OF THE CASE, NO RELIEF SHOULD BE GRANTED TO THE ASSESSEE. 9. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BO TH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. IT IS AN ADMITTED FACT THAT DURING THE COURSE OF SEARCH AND SEIZURE PROCEE DINGS NO BOOKS OF ACCOUNT WERE FOUND TO HAVE BEEN MAINTAINED. THE ASSESSEE ON THE BASIS OF BANK STATEMENTS AND OTHER DETAILS THAT WERE AVAILABLE WITH HIM PREPARED THE BOOKS OF ACCOUNT AFTER THE SE ARCH TOOK PLACE WHICH WERE PRODUCED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. I FIND THE ASSESSING OFFICER DISALLOWED AN AMOUNT O F RS.60,000/- ON ESTIMATE BASIS OUT OF THE TOTAL EXPENSES CLAIMED AT RS.89,730/- ON THE GROUND THAT THE EXPENSES CLAIMED ARE QUITE EXCE SSIVE AND UNVERIFIABLE. I FIND BEFORE CIT(A) THE ASSESSEE PR ODUCED CERTAIN DETAILS ON THE BASIS OF WHICH HE CALLED FOR A REMAN D REPORT. THE THEN JCIT VIDE REMAND REPORT DATED 08-03-2007, A CO PY OF WHICH WAS RECEIVED BY THE ASSESSEE ALSO AND FILED IN THE PAPER BOOK HAD REPORTED AS UNDER : NO. JCIT/CIR. 2(3)/RJSETHI/07-08/482 OFFICE OF THE JOINT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 2(3), PUNE DATED: 8/3/2007 THE COMMISSIONER OF INCOME TAX APPEALS-2, PUNE SIR ( SUBMITTED THROUGH ADD. CIT CENTRAL 2, PUNE) 8 SUBJECT : REMAND REPORT IN THE APPELLATE PROCEEDINGS IN THE C ASE OF SMT. RAJINDERKAUR J. SETHI FOR ASSTT. YEAR 1998-99 TO 2004-05 REGARDING: ********* KIND REFERENCE IS INVITED TO THE ORDER UNDER SECTION 25 0(4) OF THE I.T. ACT, 1961 DATED 8.2.07 IN THE ABOVE CASE. VIDE THE ABOVE ORDER IT IS DIRECTED TO VERIFY THE CLAIMS MADE BY THE ASSESSEE IN HER APPEALS FOR THE ABOVE YEAR. THE ASSE SSEE IN HER CLAIM MADE BEFORE THE CIT(A)-2 PUNE HAS SUBMITTED THA T THE DISALLOWANCE OF 2/3 RD EXPENSES MADE IN THE ASSESSMEN T ORDER FOR ALL THE ABOVE YEARS ARE ERRONEOUS SINCE THE CLAIM EXP ENSES MADE WERE FOR EARNING THE INTEREST INCOME AS SHOWN IN THE PR OFIT AND LOSS ACCOUNT. THIS AMOUNT WAS SPENT BY THE ASSESSEE TO EARN AND RECOVER THE AMOUNT OF ADVANCES GIVEN IN EARLIER PERIOD. THE EXPENSE INCURRED WERE FOR THE PURPOSE OF BUSINESS AN D HENCE CLAIMS TO BE GENUINE. I HAVE GONE THROUGH THE CLAIM MA DE BY THE ASSESSEE IN THE APPELLATE PROCEEDINGS AND ALSO THE DE TAILS OF EXPENSES CLAIMED IN THE RETURNS OF INCOME AND FOUND TH AT THE ASSESSEE HAS NOT CLARIFIED THE ABOVE ASPECT IN THE COU RSE OF ASSESSMENT. HOWEVER IT IS SEEN THAT NO SPECIFIC QUERRIE S IN THIS REGARDS SEEMS TO HAVE BEEN MADE SINCE THE RETURNS OF INCOME WERE FILED AT THE FLAG END OF THE PERIOD OF COMPLETING THE ASSESSMENTS. IN THE PRESENT PROCEEDINGS THAT ASSESSEE CLAIMS THAT SHE HAS MAINTAINED THE VOUCHERS OF EXPENSES, BUT THE FACTS THAT THES E VOUCHERS WERE NOT FOUND AT THE TIME OF SEARCH. AFTER TAKI NG INTO CONSIDERATION THE AMOUNT OF INCOME SHOWN AND EXPENSE CLAI MED IN THE RETURNS IT SEEMS THAT DISALLOWANCE OF 2/3 RD PERCENTAGE IS EXCESSIVE AND MAY BE RESTRICTED TO L/3 RD OF THE CLAIM, IF DEEMED FIT. THE ANOTHER POINT FOR CONSIDERATION IS THAT CERTAIN ADDITI ON HAVE BEEN MADE IN THE ASSESSMENT ORDERS ON THE BASIS OF BANK DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE. IN THE ASSESSMENT ORDER THE SE ADDITION HAVE BEEN MADE ON THE BASIS THAT THE ASSESSEE HAS NOT MAINTAINED THE BOOKS OF ACCOUNTS AT THE TIME OF SEARCH AND NOT SUCH BOOKS WERE FOUND IN THE SEARCH. IN THE APPELLATE PROC EEDINGS THE ASSESSEE CLAIMS THAT THE CASH BOOKS HAS BEEN PREPARED ON THE BASIS OF WITHDRAWALS AND DEPOSITS IN THE BANK ACCOUNT AND, THEREFORE, THE GENUINENESS OF THE TRANSACTIONS COULD NOT BE DOUBTED. IT WAS ALSO CLAIMED THAT THESE DEPOSITS WERE MDSE OUT OF WITHDRAWALS EFFECTED EARLIER. THE ASSESSING OFFICER HAS BRUSHED ASIDE THE CONTENTIONS OF THE ASSESSEE STATING THAT IT WAS VERY DIFFICULT TO BELIEVE THE AUTHENTICITY OF THE CASH BALANCES ON THOSE PARTICULAR DAYS WITHOUT GIVING ANY COGENT REASONS. IN THE O RDER REFERRED ABOVE IT IS THEREFORE DIRECTED TO CONSIDER THE CASH BOOK PRODUCED WHICH SHOWS THE WITHDRAWALS AND DEPOSITS FROM THE BANK ACCOUNT, ANALYSE THE SUBMISSIONS AND THEN GIVE THE COMMENTS AS TO WHETHER IT WAS POSSIBLE TO MAKE THE DEPOSITS O UT OF THE CASH WITHDRAWN FROM THE BANK ACCOUNT. I HAVE GONE THR OUGH THE SUBMISSION MADE BY THE ASSESSEE AND ALSO VERIFIED THE BOO KS OF ACCOUNTS PRODUCED BY THE ASSESSEE AND SEEMS THAT THERE WAS SUFFICIENT CASH BALANCES ON THE DATE OF DEPOSITS MADE BY THE ASSESSEE IN HER BANK ACCOUNT AND CLAIMS MADE BY THE ASSESSEE IN HER SUBMISSION FOUND TO BE ORDER. IN THE CIRCUMSTANCES THE CLAIMS MADE BY THE ASSESSEE IN HER SUBMISSION IN THE APPELLATE 9 PROCEEDINGS SEEMS TO BE IN ORDER. HOWEVER THE FACT REMAIN S THAT NO CASH BOOK WAS FOUND ON THE DATE OF SEARCH AND INFORMATIO N NOW PRODUCED BY THE ASSESSEE CAN BE SAID AS AFTERTHOUGHT. IN TH E FACTS AND CIRCUMSTANCES THE DECISION ON THE ISSUE MAY BE TAKE N ON MERIT. SD/- ( ANJALA SAHU ) JOINT COMMISSIONER OF INCOME TAX, (OSD)-V CENTRAL CIRCLE 2(3), PUNE. 9.1 FROM THE ABOVE, IT IS CLEAR THAT THE THEN JCIT HIMSELF HAD ADMITTED THAT DISALLOWANCE OF 2/3 RD EXPENSES IS ON THE HIGHER SIDE AND MAY BE RESTRICTED TO 1/3 RD OF CLAIM, IF DEEMED FIT. SINCE THE ABOVE REMAND REPORT WAS NOT SIGNED BY THE THEN JCIT AND ONLY ONE SD/- COPY WAS SENT, THE LD.CIT(A) HAD REJECTED THE SAME AND CALLED FOR ANOTHER REMAND REPORT FROM THE ASSESSING OFFICE R. THE ASSESSING OFFICER IN THE SUBSEQUENT REMAND REPORT S TATED THAT THE CONTENTION OF THE ASSESSEE DESERVES TO BE REJECTED SINCE HE FAILED TO DISCHARGE THE ONUS CAST ON HIM IN NOT PRODUCING THE VOUCHERS FOR EXAMINATION. THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT A FIRE HAD TAKEN PLACE AT THE PREMISES IS NOT IN DISPUTE DUE TO THE VARIOUS EVIDENCES SUCH AS POLICE REPORT, NEWSPA PER CUTTINGS ETC., FILED IN THE PAPER BOOK. SINCE IN THE REMAND PROCE EDINGS THE ASSESSEE HAS PRODUCED CERTAIN EVIDENCES BEFORE THE THEN ASSESSING OFFICER WHO AFTER EXAMINING THE SAME HAD STATED THA T DISALLOWANCE OF 2/3 RD EXPENSES IS EXCESSIVE, THEREFORE, I FIND SOME FORC E IN THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT NON-SIGNATURE IN THE REMAND REPORT BY THE THEN JCIT CANNOT BE A FAUL T ATTRIBUTABLE TO THE ASSESSEE AND SOME REASONABLE ESTIMATE HAS TO BE MADE. 10 CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE A ND CONSIDERING THE FACT THAT THE THEN JCIT IN HIS REMAND REPORT HAD SU GGESTED THAT DISALLOWANCE OF EXPENSES AT 2/3 RD OF THE CLAIM IS EXCESSIVE, I DIRECT THE ASSESSING OFFICER TO RESTRICT THE DISALLOWANCE TO 1/3 RD OF THE CLAIM THAT HAS BEEN MADE IN THE PROFIT AND LOSS ACC OUNT AS AGAINST 2/3 RD DISALLOWED BY HIM. I HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY PART LY ALLOWED. ITA NOS.1233/PN/2013 TO 1238/PN/2013 (A.Y. 99-00 TO 2004-05) 10. THE FIRST ISSUE RAISED BY THE ASSESSEE IN ALL T HESE APPEALS ARE REGARDING DISALLOWANCE OF EXPENSES WHICH HAS BEEN C ONFIRMED BY THE LD.CIT(A). 11. AFTER HEARING BOTH THE SIDES, I FIND THE ASSESS ING OFFICER DISALLOWED THE EXPENSES CLAIMED IN THE PROFIT AND L OSS ACCOUNT BEING EXCESSIVE AND UNVERIFIABLE IN NATURE, THE DET AILS OF WHICH ARE AS UNDER : 11.1 THE LD.CIT(A) UPHELD THE DISALLOWANCES MADE BY THE ASSESSING OFFICER FOR ALL THE YEARS FOR WHICH THE A SSESSEE IS IN APPEAL. ASST. YEAR AMT. DISALLOWED BY THE AO 1999-00 61,000/- 2000-01 65,000/- 2001-02 65,000/- 2002-03 50,000/- 2003-04 54,000/- 2004-05 50,000/- 11 12. I HAVE ALREADY DECIDED THIS ISSUE IN ITA NO.123 2/PN/2013 FOR A.Y. 1998-99. FOLLOWING THE SAME REASONINGS, I DIRECT THE ASSESSING OFFICER TO RESTRICT THE DISALLOWANCE TO 1 /3 RD OF THE CLAIM OF EXPENSES IN THE PROFIT AND LOSS ACCOUNT. GROUNDS R AISED BY THE ASSESSEE ON THE ISSUE OF EXPENSES IN ALL THESE APPE ALS ARE ACCORDINGLY PARTLY ALLOWED. 13. THE SECOND ISSUE IN ALL THESE APPEALS RELATE TO ADDITION ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS, THE DETAILS O F WHICH ARE AS UNDER : ASST. YEAR AMOUNT DISALLOWED BY THE ASSESSING OFFICER RELIEF GIVEN BY CIT(A) ADDITIONS SUSTAINED FOR WHICH ASSESSEE IN APPEAL 1999-00 50,000/- NIL 50,000/- 2000-01 30,000/- 10,000/- 20,000/- 2001-02 2,00,000/- NIL 2,00,000/- 2002-03 1,55,000/- NIL 1,55,000/- 2003-04 2,20,000/- NIL 2,20,000/- 2004-05 3,51,000/- NIL 3,51,000/- 14. FACTS OF THE CASE, IN BRIEF, ARE THAT THE AO DU RING THE COURSE OF ASSESSMENT PROCEEDINGS FOR THE A.Y. 1999-2000 NO TICED ON VERIFICATION OF THE BANK ACCOUNTS THAT CASH DEPOSIT OF RS.50,000/- WAS MADE ON 11-12-1998 IN THE BANK ACCOUNT OF THE A SSESSEE VIDE SAVINGS BANK ACCOUNT NO.1151 MAINTAINED WITH CITIZE N COOPERATIVE BANK LTD. SHIVAJINAGAR BRANCH, PUNE. H E THEREFORE ASKED THE ASSESSEE TO EXPLAIN THE SOURCE OF SUCH CA SH DEPOSIT. IT WAS EXPLAINED BY THE ASSESSEE THAT THESE DEPOSITS W ERE MADE FROM THE CASH BALANCE AVAILABLE ON THAT PARTICULAR DAY. SINCE THE ASSESSEE 12 WAS NOT MAINTAINING ANY BOOKS OF ACCOUNT TILL THE D ATE OF SEARCH, THEREFORE, THE ASSESSING OFFICER REJECTED THE CASH BOOK PRODUCED BY THE ASSESSEE BEFORE HIM WHICH WAS PREPARED IN THE M ONTH OF MARCH 2006. ACCORDING TO THE ASSESSING OFFICER IN THE AB SENCE OF ACTUAL CASH BOOK FOR THE PERIOD IT IS VERY DIFFICULT TO BE LIEVE THE AUTHENTICITY OF THE CASH BALANCE ON THAT PARTICULAR DAY. HE THEREFORE DISALLOWED CASH DEPOSIT OF RS.50,000/- AS UNEXPLAIN ED CASH CREDIT IN THE ACCOUNTS OF THE ASSESSEE AND ACCORDINGLY MADE A DDITION TO THE TOTAL INCOME OF THE ASSESSEE. SIMILAR ADDITION HAS BEEN MADE BY THE ASSESSING OFFICER IN SUBSEQUENT ASSESSMENT YEARS AL SO THE DETAILS OF WHICH ARE ALREADY MENTIONED ABOVE. 15. BEFORE CIT(A) THE ASSESSEE EXPLAINED THE SOURCE OF SUCH CASH DEPOSITS IN VARIOUS ASSESSMENT YEARS, THE DETAILS O F WHICH ARE AS UNDER : A.Y. AMOUNT OF CASH DEPOSIT CONSIDERED AS INVESTMENT AMOUNT OF CASH WITHDRAWALS DURING THE YEAR WHICH IS ONE OF THE SOURCE OF DEPOSIT WHICH HAS NOT BEEN CONSIDERED BY THE AO 1999-2000 50,000/- CASH BALANCE PRIOR TO THE DEPOSI T WAS RS.58,297/- PRIOR TO THE DEPOSIT AS ON 11-12-98 2000-01 30,000/- RS.10,000/- DEPOSITED ON 6-8-99 OU T OF THE WITHDRAWALS OF RS.3,10,000/- ON SAME DAY. RS.20,000/- ARE DEPOSITED IN FIXED DEPOSIT ON 12- 1-99 OUT OF BALANCE IN HAND OUT OF EARLIER WITHDRAWAL. 2001-02 2,00,000/- THE DEPOSIT OF RS.1,50,000/- ON 22-8-2000 AND RS.50,000/- ON 20-10-2000 ARE OUT OF EARLIER WITHDRAWAL FROM BANK TOTAL AMOUNTING TO RS.4,64,600/- CONSIDERING OF DEPOSIT IN THE BANK AND MATURITY OF FIXED DEPOSIT. 2002-03 1,55,000/- THE DEPOSITS IN THE BANK IN THIS YEAR ARE MAINLY ON ACCOUNT OF DEPOSIT IN THE RECURRING DEPOSIT ACCOUNT OF RS.10,000 OCT, 2001 AND SINGLE DEPOSIT IN S.B. ACCOUNT OF RS.35,000 ON 9-8-2001. THE AMOUNT DEPOSITED IN THE ACCOUNT IF OUR OF OLD BALANCE IN HAND INCOME FROM AGRICULTURAL ACTIVITIES. 2003-04 2,20,000/- THE DEPOSIT IN THIS YEAR COMPRIS E OF 22 INSTALLMENT OF RS.10,000/- EACH DEPOSITED IN 13 MONTHLY RECURRING DEPOSIT ACCOUNT. THE SOURCES OF DEPOSIT ARE PARTLY FROM THE AMOUNT TAKEN FROM JASBIR ENTERPRISES (RS.6,07,000/- IN TOTAL) AND INCOME FROM AGRICULTURAL ACTIVITY. 2004-05 3,51,000/- OUT OF THE TOTAL AMOUNT DEPOSIT CONSIDERED IN THIS YEAR THE AMOUNT OF RS.40,000 CONSIST OF DOUBTS, ADDITION OF THE SAME AMOUNT DEPOSITED ON 5/4, 5/5, 7/6 & 5-7-2003. THE BALANCE AMOUNT OF RS.3,11,000/- CONSIST OF DEPOSIT IN RECURRING DEPOSIT, FIXED DEPOSIT AND DEPOSIT IN S.B. ACCOUNT. THESE AMOUNT ARE DEPOSITED PARTLY OUT OF MATURITY OF DEPOSIT OF EARLIER YEARS, AMOUNT WITHDRAWN FROM BANK ACCOUNT AND AMOUNT RECEIVED FROM M/S. JASBIR ENTERPRISES DULY ACCOUNTED FROM TIME TO TIME. THE EXTRACT OF ACCOUNT IS ENCLOSED. 15.1 IT WAS SUBMITTED THAT THE ASSESSEE HAD MAINTAI NED THE BANK ACCOUNT WITH THE CITIZEN COOPERATIVE BANK LTD. VIDE S.B. A/C. NO.1151 AT SHIVAJI NAGAR BRANCH. SHE HAD ALSO DEPO SITED THE AMOUNT IN RECURRING DEPOSIT AND FIXED DEPOSIT WITH THE BANK FROM YEAR TO YEAR. THE ASSESSEE HAD DEPOSITED PART OF T HE AMOUNT OUT OF CASH BALANCE IN BANK AND PART OF THE AMOUNT OUT OF WITHDRAWALS FROM THE SAID BANK WHICH WAS NOT REQUIRED BY THE AS SESSEE. HOWEVER, THE ASSESSING OFFICER FAILED TO CONSIDER T HE SUBMISSION OF THE ASSESSEE. IT WAS ARGUED THAT THE BOOKS OF ACCO UNT WERE PREPARED ON THE BASIS OF TRANSACTIONS REFLECTED IN THE BANK ACCOUNT AND THEREFORE THE GENUINENESS OF THE TRANSACTIONS SHOUL D NOT HAVE BEEN DOUBTED. FURTHER, THE STATEMENT SHOWING YEAR-WISE WITHDRAWALS FROM THE BANK CLEARLY ESTABLISH THAT THE ASSESSEE W AS HAVING SUFFICIENT WITHDRAWALS FROM THE BANK WHICH WAS SPEC IFICALLY DUE TO NON REQUIREMENT OF CASH. IT WAS FURTHER ARGUED THA T NO TELESCOPING EFFECT OUT OF THE DEPOSITS, AND WITHDRAWALS WAS GIV EN BY THE ASSESSING OFFICER AND THE ADDITION WAS MADE WITHOUT VERIFYING THE 14 GENUINENESS OF THE TRANSACTION AND WITHOUT GIVING A NY OPPORTUNITY TO THE ASSESSEE TO OFFER THE EXPLANATION. 16. BASED ON THE ARGUMENTS ADVANCED BY THE ASSESSEE THE LD.CIT(A) CALLED FOR A REMAND REPORT FROM THE ASSES SING OFFICER. THE THEN JCIT VIDE REMAND REPORT DATED 08-03-2007 S UBMITTED A REMAND REPORT, THE CONTENTS OF WHICH HAVE ALREADY B EEN REPRODUCED AT PARA 9 OF THE IMPUGNED ORDER. HOWEVER, SINCE TH E SAID REMAND REPORT WAS NOT SIGNED AND ONLY ONE SD/- COPY WAS SE NT TO THE OFFICE OF THE LD.CIT(A), THEREFORE, A FRESH REMAND REPORT WAS CALLED FROM THE ASSESSING OFFICER WHICH THE LD.CIT(A) HAS REPRO DUCED IN THE ORDER AT PAGE 15 AND WHICH READS AS UNDER : '(II) ISSUE OF BANK DEPOSITS OUT OF CASH WITHDRAWN FRO M THE BANK. IN THIS CONNECTION IT IS SUBMITTED THAT THE ASSESSEE NO T MAINTAINED ANY BOOKS OF ACCOUNTS. NO PROPER VOUCHER HAS BEEN M ADE AND THEREFORE THERE IS NO AUTHENTICITY OF THE CASH BOOK / BANK BOOK MAINTAINED. THE ASSESSEE HAS PREPARED CASH BOOK AT TH E FILING OF RETURN OF INCOME AND THEREFORE, THE SAME CANNOT BE C ONSIDERED AS RELIABLE. IN VIEW OF THIS THE EVIDENCE PRODUCED BY THE ASSESSEE DESERVES TO BE REJECTED. I WOULD ALSO LIKE TO FURTHER MENTION, THE ACCOUNTS FO R RELEVANT YEARS WERE PREPARED ONLY SUBSEQUENT TO THE SEARCH AND ARE NOT SUPPORTED BY ANY CONTEMPORANEOUS RECORDS. IT SHOULD ALSO BE KEPT IN MIND THAT THE ASSESSEE HAD NOT FILED ANY RETURNS OF INCOME FOR THE EARLIER YEARS. THE CLAIM OF OPENING CASH IS, THEREF ORE, NOT ESTABLISHED AND CANNOT BE ACCEPTED.' 16.1 THE LD.CIT(A) CALLED FOR THE COMMENTS OF THE A SSESSEE WHO OBJECTED TO SUCH REMAND REPORT. IT WAS ARGUED THAT THE JCIT IN HIS REMAND REPORT HAD CONSIDERED THE ISSUE OF BANK DEPO SITS WHICH WAS EXPLAINED TO HIM AS OUT OF CASH WITHDRAWALS FROM T HE SAID BANK. IT WAS SUBMITTED THAT WHILE GIVING THE FIRST REMAND RE PORT THE JCIT HAS 15 CATEGORICALLY STATED THAT THERE WAS SUFFICIENT CASH BALANCE ON THE DATE OF DEPOSITS MADE BY THE ASSESSEE IN HER BANK A CCOUNT AND THE CLAIM MADE BY THE ASSESSEE IN HER SUBMISSIONS FOUND TO BE IN ORDER. RELYING ON VARIOUS DECISIONS IT WAS SUBMITTED THAT THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLA INED CASH CREDIT SHOULD BE DELETED FOR ALL THE YEARS. 17. HOWEVER, THE LD.CIT(A) WAS NOT SATISFIED WITH T HE EXPLANATION GIVEN BY THE ASSESSEE. SO FAR AS A.Y. 1998-99 IS CONCERNED HE OBSERVED THAT NO BOOKS OF ACCOUNT WERE MAINTAINED BY THE ASSESSEE AT THE TIME OF SEARCH AND BOOKS WER E WRITTEN SUBSEQUENTLY BASED ON THE AVAILABLE RECORD INCLUDIN G THE BANK TRANSACTIONS. ACCORDING TO HIM BOOKS OF ACCOUNT WR ITTEN IN THIS MANNER CAN AT BEST GIVE A PARTIAL PICTURE AND NOT T HE FULL AND TRUE ACCOUNT OF THE BUSINESS TRANSACTIONS. THEREFORE, A CCORDING TO HIM NO CREDENCE HAS TO BE ATTACHED TO THE ASSESSEES AS SERTION REGARDING THE AVAILABILITY OF CASH IN HAND ON PARTICULAR DATE S. AS REGARDS THE ORIGINAL REMAND REPORT RELIED ON BY THE ASSESSEE HE HELD THAT THE SAME WAS UNSIGNED FOR WHICH THE THEN CIT(A) REMANDE D THE MATTER ONCE AGAIN TO THE ASSESSING OFFICER FOR HIS REPORT . IN VIEW OF THE ABOVE, HE HELD THAT THE SECOND REMAND REPORT DULY S IGNED BY THE ASSESSING OFFICER SHOULD NOT BE CHALLENGED AND HE C ANNOT RELY ON THE ORIGINAL UNSIGNED REPORT. ACCORDING TO HIM THE ASSESSEE HAS FAILED IN HER DUTY TO MAINTAIN BOOKS OF ACCOUNT P RIOR TO THE SEARCH ALTHOUGH SHE WAS DUTY BOUND TO DO SO. ACCORDING TO HIM, AN 16 ASSESSEE CANNOT TAKE ADVANTAGE OF HER OWN WRONG AND ARGUE THAT BOOKS OF ACCOUNT SUBSEQUENTLY WRITTEN BY HER MUST B E ACCEPTED AS A WHOLE WITHOUT QUESTION. HE HELD THAT EMPTY CLAIM O F AVAILABILITY OF CASH IN HAND, THEREFORE, CANNOT BE BLINDLY ACCEPTED ON THE BASIS OF SUBSEQUENTLY WRITTEN BOOKS OF ACCOUNT. HE HOWEVER HELD THAT WHERE THE DEPOSITS WERE PRECEDED WITHIN A REASONABL E TIME PERIOD BY WITHDRAWALS FROM THE SAME OR ANY OTHER BANK ACC OUNT OF THE ASSESSEE, IN SUCH CIRCUMSTANCES IT CAN BE SAID THAT CASH WAS NOTIONALLY AVAILABLE TO THE ASSESSEE FOR MAKING THE DEPOSITS PROVIDED THERE IS NO PARTICULAR EVIDENCE THAT THE S AID CASH WAS UTILISED IN SOME OTHER MANNER. IN VIEW OF THE ABOV E REASONINGS, THE LD.CIT(A) SUSTAINED THE ADDITION OF RS.50,000/- FOR A.Y. 98-99 CONCERNED. 17.1 HE GAVE PART RELIEF OF RS.10,000/- FOR A.Y. 99 -00, AND SUSTAINED THE ADDITION MADE BY THE ASSESSING OFFICE R FOR THE OTHER YEARS. 18. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASS ESSEE IS IN APPEAL BEFORE US 19. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET SUBMITTED THAT IT IS AN ADMITTED FACT THAT NO BOOKS OF ACCOUNTS WE RE MAINTAINED AT THE TIME OF SEARCH. HE SUBMITTED THAT AFTER THE SE ARCH TOOK PLACE THE ASSESSEE, ON THE BASIS OF THE DEPOSITS AND WITHDRAW ALS FROM THE BANK ACCOUNT AND THE AVAILABLE BILLS AND VOUCHERS PREPAR ED THE CASH BOOK AND FILED THE RETURN OF INCOME. HE SUBMITTED THAT AS PER THE CASH 17 BOOK, THERE IS NO NEGATIVE CASH BALANCE ON THE DATE S ON WHICH CASH WAS DEPOSITED IN THE BANK ACCOUNT. THERE WAS NO EV IDENCE THAT THE ASSESSEE HAS UTILISED THE AVAILABLE CASH OTHERWISE. REFERRING TO THE FIRST REMAND REPORT, HE SUBMITTED THAT THE THEN JCI T AFTER GOING THROUGH THE CASH BOOK PRODUCED BEFORE HIM, HAS HELD THAT SUFFICIENT CASH BALANCE WAS AVAILABLE IN THE BOOKS BEFORE THE CASH WAS DEPOSITED IN THE BANK ACCOUNT. HE SUBMITTED THAT A COPY OF REMAND REPORT WAS RECEIVED BY THE ASSESSEE AND A COPY WAS ALSO RECEIVED BY THE OFFICE OF THE CIT(A) THROUGH RPAD. NO FAULT CA N BE ATTRIBUTABLE TO THE ASSESSEE FOR NON-SIGNATURE IN T HE REMAND REPORT BY THE THEN JCIT. IT HAS NOT BEEN PROVED THAT SUCH REMAND REPORT WAS FALSE, FABRICATED OR UNTRUE. THIS IS AN INTERN AL MATTER OF THE DEPARTMENT AND THE ASSESSEE SHOULD NOT SUFFER FOR T HE FAULT ON THE PART OF THE REVENUE. HE ALSO RELIED ON THE FOLLOWI NG DECISIONS : 1. SREELEKHA BANERJEE & OTHERS VS. CIT 49 ITR 112 ( SC) 2. SONA ELECTRIC COMPANY VS. CIT 152 ITR 507 (DEL.) 3. ROSHAN DI HATTI VS. CIT 107 ITR 938 (SC) 4. S. HASTIMAL VS. CIT 49 ITR 273 (MAD) 5. MEHTA PARIKHA & CO. VS. CIT 30 ITR 181 (SC) 6. LALCHAND BHAGAT AMBICA RAM VS. CIT 37 ITR 288(SC) 7. ACIT VS. BALDEV RAJ CHARLA & OTHERS 18 DTR 413 HE ACCORDINGLY SUBMITTED THAT ADDITIONS MADE UNDER UNEXPLAINED CASH CREDIT FOR ALL THE YEARS SHOULD BE DELETED. 20. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHE R HAND HEAVILY RELIED ON THE ORDER OF THE CIT(A). HE SUBM ITTED THAT BURDEN WAS ON THE ASSESSEE TO PROVE WITH COGENT EVIDENCE R EGARDING THE AVAILABILITY OF CASH BEFORE THE SAME WAS DEPOSITED IN THE BANK 18 ACCOUNT. SINCE THE ASSESSEE IN THE INSTANT CASE HA S FAILED TO DISCHARGE THE ONUS CAST ON HER, THEREFORE, THE CIT( A) WAS FULLY JUSTIFIED IN SUSTAINING THE ADDITION MADE BY THE AS SESSING OFFICER. HE ACCORDINGLY SUBMITTED THAT THE ORDER OF THE CIT( A) ON THIS ISSUE BE UPHELD. 21. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. I HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE ME. THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE WAS NOT MAINTAINING ANY BOOK S OF ACCOUNT WHEN THE SEARCH TOOK PLACE. IT IS ONLY AFTER THE S EARCH TOOK PLACE THAT THE ASSESSEE, BEFORE FILING OF THE RETURNS, PR EPARED THE BOOKS ON THE BASIS OF THE BANK STATEMENTS AND THE AVAILABLE DATA. ACCORDING TO THE LD. COUNSEL FOR THE ASSESSEE, SUFFICIENT CAS H WAS AVAILABLE IN THE CASH BOOK ALTHOUGH THE SAME WAS PREPARED AFTER THE SEARCH AND THE DEPARTMENT HAS NOT FOUND ANY OTHER EVIDENCE DUR ING THE SEARCH THAT THE ASSESSEE HAS UTILISED THE CASH OTHERWISE. IT IS ALSO THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT DURING THE FIRST REMAND REPORT, THE THEN JCIT HAD VERIFIED THE CASH BOOK AND HAS FOUND THAT SUFFICIENT CASH WAS AVAILABLE IN THE CAS H BOOK BEFORE CASH DEPOSIT WAS MADE IN THE BANK ACCOUNT. MERELY BECAUSE THE SAME WAS NOT SIGNED BY THE JCIT AND ONLY AN SD/- CO PY WAS SENT THE SAME CANNOT BE A GROUND TO MAKE ADDITION U/S.68 ON THE BASIS OF THE SUBSEQUENT REMAND REPORT OF THE ASSESSING OFFICER. 19 22. I FIND SOME FORCE IN THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE. ADMITTEDLY, NO BOOKS OF ACCOUNTS WERE MA INTAINED AT THE TIME OF SEARCH. HOWEVER, IT IS ALSO A FACT THAT TH E BOOKS OF ACCOUNTS WERE PREPARED SUBSEQUENT TO THE SEARCH ON THE BASIS OF THE DEPOSITS AND WITHDRAWALS AS PER THE BANK STATEMENT AND OTHER AVAILABLE DATA. SUCH BOOKS WERE PRODUCED BEFORE THE ASSESSING OFFIC ER DURING ASSESSMENT PROCEEDINGS. THE THEN JCIT IN HIS REMAN D REPORT HAS GIVEN A CATEGORICAL FINDING THAT SUFFICIENT CASH WA S AVAILABLE IN THE BOOKS BEFORE THE DEPOSITS WERE MADE. THE CONTENTS OF THE REMAND REPORT HAS ALREADY BEEN REPRODUCED AT PARA NO.9 OF THE IMPUGNED ORDER. MERELY BECAUSE THE SAID REMAND REPORT WAS N OT SIGNED BY THE JCIT AND ONLY ONE SD/- COPY WAS FORWARDED TO THE OF FICE OF THE CIT(A), THE SAME IN MY OPINION CANNOT BE A GROUND T O TAKE A VIEW AGAINST THE ASSESSEE. THE ASSESSEE IS AT NO FAULT FOR NON-SUBMISSION OF THE SIGNED REMAND REPORT BY THE THEN JCIT. FURT HER, NOTHING HAS BEEN FOUND BY THE SEARCH PARTY AT THE TIME OF SEARC H THAT THE ASSESSEE HAS UTILISED THE CASH TOWARDS PURCHASE OF ANY OTHER ASSET OR INCURRING OF ANY UNEXPLAINED EXPENDITURE. 22.1 THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF ACIT VS. BALDEV RAJ CHARLA (SUPRA) HAS HELD THAT WHEN THERE IS NO MATERIAL WITH THE INCOME-TAX AUTHORITIES TO SHOW THAT THE AM OUNTS OF CASH DEPOSITS IN QUESTION ADMITTEDLY WITHDRAWN FROM BANK AND ASSESSEES CONCERN WERE UTILISED FOR ANY OTHER PURP OSE, NO ADDITION 20 COULD BE MADE ONLY ON THE GROUND THAT THERE WAS TIM E GAP BETWEEN THE WITHDRAWALS AND THE CORRESPONDING CASH DEPOSITS . 22.2 ANOTHER ASPECT TO BE CONSIDERED IN THIS CASE I S THAT THE ASSESSMENT ORDER HAS BEEN PASSED U/S.143(3) AND THE BOOKS OF ACCOUNTS WERE NOT REJECTED BY THE ASSESSING OFFICER . THEREFORE, ONCE THE BOOKS ARE NOT REJECTED AND SINCE NOTHING H AS BEEN FOUND DURING THE COURSE OF SEARCH THAT THE ASSESSEE HAS D IVERTED ITS CASH FOR SOME OTHER PURPOSE, THEN, IN MY OPINION, THE AV AILABILITY OF CASH IN THE BOOKS CANNOT BE DOUBTED AS NOT AVAILABLE TO THE ASSESSEE MERELY BECAUSE THERE IS SOME TIME GAP BETWEEN THE W ITHDRAWAL AND THE DEPOSIT. SINCE THE ASSESSEE HAS EXPLAINED THE SOURCE OF DEPOSITS AS OUT OF EARLIER WITHDRAWALS EITHER ON THE SAME DA Y OR ON PREVIOUS OCCASIONS AND SINCE THE CASH BOOK PRODUCED BY THE A SSESSEE SHOWS THAT THERE IS SUFFICIENT CASH BALANCE ON THE DATE O F DEPOSIT OF CASH IN THE BANK ACCOUNT AND CONSIDERING THE FACT THAT THE THEN JCIT IN HIS REMAND REPORT HAS ALSO ACCEPTED THAT CASH WAS AVAIL ABLE IN THE BOOKS FOR MAKING THE DEPOSIT IN THE BANK ACCOUNT, T HEREFORE, I AM OF THE CONSIDERED OPINION THAT NO ADDITION IS CALLED F OR U/S.68 OF THE I.T. ACT. IN THIS VIEW OF THE MATTER, I SET- ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE ASSESSING OFFICER TO DELETE T HE ADDITION MADE BY HIM U/S.68 IN ALL THESE YEARS. THE GROUNDS RAIS ED BY THE ASSESSEE IN ALL THESE YEARS ARE ACCORDINGLY ALLOWED. 21 23. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE PARTLY ALLOWED. PRONOUNCED IN THE OPEN COURT ON 27-03-2015. SD/- (R.K. PANDA) ACCOUNTANT MEMBER PUNE DATED: 27 TH MARCH, 2015 SATISH COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT(A) CENTRAL, PUNE 4. THE CIT CENTRAL, PUNE 5. THE D.R. SMC BENCH, PUNE 6. GUARD FILE BY ORDER // TRUE COPY // ASSISTANT REGISTRAR ITAT, PUNE BENCHES, PUNE