Balaso Bapuso Mujawar, Kolhapur V. Deputy Commissioner of Income-tax,

ITA 1288/PUN/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7714 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 09-01-2017
• Assessment Year: 2001-2002
• Appeal Filed On: 13-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Search and seizure; Corroborative evidences
• Section: 142(1); 153A; 131; 132; 144; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO S . 1287 TO 1290 /P U N/201 6 / ASSESSMENT YEAR S : 2000 - 01, 2001 - 02, 2004 - 05 & 20 05 - 06 BALASO BAPUSO MUJAWAR, WARD NO.1, HOUSE NO.370, AMBI GALLI, ICHALKARANJI, DIST. KOLHAPUR 416115 . / APPELLANT PAN: A BNPM0776D VS. THE DY . COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOLHAPUR . / RESPONDENT / APPELLANT BY : SHRI M.K. KULKARNI / RESPONDENT BY : SHRI ACHAL SHARMA, ADDL.CIT / DATE OF HEARING : 1 0 .0 8 . 2017 / DATE OF PRONOUNCEMENT: 23 . 0 8 .201 7 / ORDER PER SUSHMA CHOWLA, J M : THE BUNCH OF APPEAL S FILED BY THE ASSESSEE ARE AGAINST CONSOLIDATED ORDER OF CIT (A) , PUNE - 11 , DATED 1 8.03.2016 RELATING TO ASSESSMENT YEAR S 2000 - 01, 2001 - 02, 2004 - 05 & 2005 - 06 AGAINST RESPECTIVE ORDER S PASSED UNDER SECTION S 14 4 & 144 R.W.S. 153A(B) OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . ITA N O S . 1287 TO 1290 /P U N/20 1 6 BALASO BAPUSO MUJAWAR 2 2 . THIS BUNCH OF APPEALS RELATING TO THE SAME ASSESSEE WERE HEARD TOGETHER AND ARE BEING DISPOS ED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. IN ORDER TO ADJUDICATE THE ISSUES, WE MAKE REFERENCE TO THE FACTS AND ISSUE S RAISED IN ITA NO.1287/PUN/2016, RELATING TO ASSESSMENT YEAR 2000 - 01 FIRST . 3. THE ASSESSEE IN ITA NO. 1287 /PUN/201 6, RELATING TO ASSESSMENT YEAR 2000 - 01 HAS RAISED THE FOLLOWING GROUND S OF APPEAL : - 1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) WAS NOT JUSTIFIED IN DIRECTING THE A.O. TO DELETE THE ADDITION OF RS.1,35 ,000 / - AFTER VERIFYING THE D ETAILS AND REGARDING REMAINING ADDITION OF RS.45,000/ - WAS WORTH AND WAS CONFIRMED. THE LD. CIT(A) HIMSELF SHOULD HAVE DECIDED THE ISSUE ON THE BASIS OF RECORDS PLACED BEFORE HIM ESPECIALLY WHEN NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEAR CH ACTION UNDER SECTION 132 POINTING OUT ANY EVASION/CONCEALMENT OF INCOME. IN THIS VIEW OF THE MATTER THE ASSESSMENT MADE BY THE A.O. BEING NOT SUSTAINABLE IN LAW BE QUASHED. AS A RESULT THE APPEAL ORDER OF THE LD. CIT(A) BE SET ASIDE. 2) ON THE FACTS A ND CIRCUMSTANCES OF THE CASE AND IN L AW AND IN VIEW OF GROUND NO.1 THE ADDITION MADE BY THE A.O. OF RS . 45 , 000/ - AND CONFIRMED BY LD. CIT(A) BE DELETED. 3) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN AND L AW WHEN IT REVEALS FROM THE ASSESSMENT ORDER THAT THE ORIGINAL RETURN WAS FILED UNDER SECTION 139 ON 10 - 07 - 2000. NO ACTION WAS TAKEN ON THIS VALID RETURN FILED. AT THE TIME OF SEARCH ACTION THE TIME LIMIT FOR ISSUE OF NOTICE U/S. 143(2) HAD ALREADY EXPIRED. IT WAS A CASE OF 'NON - ABATED ASSESSMENT'. IN VIEW OF THIS THE ASSESSMENT COMPLETED UNDER SECTION 144 R.W.S. 153A WITHOUT ISSUE OF MANDATORY NOTICE U/S. 143(2) IS BAD IN LAW. IN VIEW OF THIS THE GROUND OF APPEAL BEING LEGAL GROUND CAN BE RAISED AT ANY TIME ACCORDING TO SETTLED PRINCIPLES OF LAW. TH E ASSESSMENT MADE BY THE A.O. AND THE CONSEQUENT APPEAL ORDER OF CIT(A) BE SET ASIDE. 4. BRIEFLY, IN THE FACTS OF THE CASE, SEARCH AND SEIZURE ACTION UNDER SECTION 132 OF THE ACT WAS CONDUCTED AT THE RESIDENTIAL AND BUSINESS PREMISES OF BAGWAN GROUP ON 1 8.05.2005. THE ASSESSEE WAS ONE OF THE MEMBERS OF GROUP AND WAS ALSO COVERED UNDER SEARCH AND SEIZURE ACTION. FOR THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAD ORIGINALLY FILED THE RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 93,060/ - AND AGRICULTURAL INCOME OF RS.50,000/ - AND INCOME FROM LOTTERY OF RS.80,000/ - . THE ASSESSING OFFICER ISSUED NOTICE ITA N O S . 1287 TO 1290 /P U N/20 1 6 BALASO BAPUSO MUJAWAR 3 UNDER SECTION 153A OF THE ACT AND IN RESPONSE THERETO, THE ASSESSEE FILED AN APPLICATION ASKING FOR PHOTOCOPIES OF STATEMENTS RECORDED DURING THE COURSE OF S EARCH. HOWEVER, NO RETURN OF INCOME WAS FILED BY THE ASSESSEE IN RESPONSE TO NOTICE ISSUED UNDER SECTION 153A(A) OF THE ACT. THE ASSESSING OFFICER THEREAFTER, ON 07.05.2007 ISSUED NOTICES UNDER SECTION 142(1) OF THE ACT ASKING THE ASSESSEE TO FILE THE RE TURN OF INCOME FOR ASSESSMENT YEARS 2000 - 01 TO 2006 - 07 BY 30.05.2007. THE ASSESSEE FAILED TO FURNISH ANY RETURN OF INCOME. AGAIN ON 10.07.2007, ANOTHER NOTICE WAS ISSUED BUT THE ASSESSEE FAILED TO COMPLY WITH THE NOTICE UNDER SECTION 142(1) OF THE ACT . THEREAFTER, SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE TO EXPLAIN AS TO WHY THE ASSESSMENT SHOULD NOT BE COMPLETED UNDER SECTION 144 OF THE ACT, IN VIEW OF VARIOUS POINTS RAISED IN THE OFFICE LETTER DATED 23.08.2007. THE ASSESSEE WAS SHOW CAUSED THAT IN THE ABSENCE OF ANY REPLY, THE ASSESSMENT WOULD BE COMPLETED AS PER THE SAID OFFICE LETTER. HOWEVER, THE ASSESSEE FILED THE RETURNS IN RESPONSE TO NOTICE ISSUED UNDER SECTION 153A OF THE ACT ON 13.11.2007 IN WHICH, HE DECLARED INCOME OF RS.1,68,060/ - AND AGRICULTURAL INCOME OF RS.50,000/ - . THE ASSESSING OFFICER THEREAFTER, HELD THE ASSESSEE TO HAVE MADE UNEXPLAINED INVESTMENTS IN FARM HOUSE TO THE EXTENT OF RS.1,80,000/ - . THIS WAS ON ACCOUNT OF STATEMENT OF ASSESSEE RECORDED DURING POST SEARCH VERIFICATI ON, WHEREIN THE ASSESSEE OFFERED DIFFERENCE OF RS.1,35,000/ - AND RS.45,000/ - AS UNDISCLOSED INVESTMENT IN FARM HOUSE, DURING THE COURSE OF ASSESSMENT PROCEEDINGS. HOWEVER, THE ASSESSEE STATED THAT NO ADDITIONAL INCOME IS TO BE ADDED IN HIS HANDS AS ALL TH E INVESTMENTS HAVE BEEN CONSIDERED IN CASH FLOW STATEMENT . THE ASSESSING OFFICER NOTED THAT IN THE RETURNS OF INCOME FILED UNDER SECTION 153A OF THE ACT, IN THE BALANCE SHEET, THE ASSESSEE HAD SHOWN ADDITIONAL INVESTMENT OF RS.1,35,000/ - AND NOT RS.1,80,0 00/ - AS ADMITTED DURING THE COURSE OF STATEMENT RECORDED UNDER SECTION 131 OF THE ACT. SINCE THE ASSESSEE HAS ALSO FAILED TO ITA N O S . 1287 TO 1290 /P U N/20 1 6 BALASO BAPUSO MUJAWAR 4 EXPLAIN AS TO WHY THE ADDITIONAL INVESTMENT SHOULD NOT BE CONSIDERED IN ASSESSMENT YEAR 2000 - 01 AND NOT FOR ASSESSMENT YEAR 2002 - 0 3, THE ENTIRE AMOUNT OF RS.1,80,000/ - WAS ADDED AS UNDISCLOSED INCOME OF ASSESSEE UNDER SECTION 69B OF THE ACT. 5. THE CIT(A) NOTED THAT CONSEQUENT TO SEARCH ACTION, NOTICES UNDER SECTION 153A OF THE ACT WERE ISSUED TO THE ASSESSEE AND THE IMPUGNED ASSES SMENT ORDERS WERE PASSED UNDER SECTION 144 OF THE ACT AS THE ASSESSEE FAILED TO PRODUCE THE REQUIRED DETAILS BEFORE THE ASSESSING OFFICER . I N ALL THE ASSESSMENT YEARS INVOLVED, THE ADDITIONS WERE MADE ON THE BASIS OF INVESTMENT IN FARM HOUSE, FDRS OR ESTI MATION OF INCOME. THE CIT(A) ALSO NOTED THAT THE MAIN REASON FOR MAKING THE ADDITION WAS NON - COOPERATIVE ATTITUDE OF ASSESSEE. HOWEVER, DURING THE COURSE OF APPELLATE PROCEEDINGS, THE ASSESSEE FURNISHED DETAILED EXPLANATION REGARDING FDRS FOUND AND SEIZE D DURING THE COURSE OF SEARCH, WHICH WERE FORWARDED TO THE ASSESSING OFFICER, WHO IN TURN, FURNISHED CONSOLIDATED REMAND REPORT. THE CIT(A) NOTED THAT THOUGH THE ASSESSEE OFFERED UNEXPLAINED INVESTMENT TO THE EXTENT OF RS.1,80,000/ - IN FARM HOUSE IN ASSES SMENT YEAR 2000 - 01, HOWEVER, WHILE FILING THE RETURN OF INCOME IN RESPONSE TO NOTICE UNDER SECTION 153A OF THE ACT, ADDITIONAL INCOME OF RS.1,35,000/ - WAS OFFERED IN ASSESSMENT YEAR 2002 - 03 ON ACCOUNT OF UNEXPLAINED INVESTMENT IN FARM HOUSE. NO ADDITIONAL INCOME WAS OFFERED IN ASSESSMENT YEAR 2000 - 01 AS THE CLAIM OF ASSESSEE WAS THAT THE EXPENDITURE ON RENOVATION WAS INCURRED IN ASSESSMENT YEAR 2002 - 03 AND HENCE, NO FURTHER ADDITION SHOULD BE MADE IN ASSESSMENT YEAR 2000 - 01. THE CIT(A) VIDE PARA 6.3 HELD THAT THE ASSESSING OFFICER WAS NOT WRONG IN PLACING RELIANCE ON THE STATEMENT GIVEN BY THE ASSESSEE ON OATH AND DISCLOSURE OF ADDITIONAL INCOME MADE THEREIN. THE CIT(A) FURTHER NOTED THAT SUM OF ITA N O S . 1287 TO 1290 /P U N/20 1 6 BALASO BAPUSO MUJAWAR 5 RS.1,35,000/ - WAS OFFERED IN ASSESSMENT YEAR 2002 - 03 IN THE RETURN OF INCOME WHICH HAS BEEN ACCEPTED BY THE ASSESSING OFFICER AND IT APPEARS THE DOUBLE ADDITION OF SAME AMOUNT WAS MADE . THE ASSESSING OFFICER WAS DIRECTED TO DELETE THE SAME AFTER VERIFYING THE CONTENTIONS OF ASSESSEE. THE BALANCE SUM OF RS.45,000/ - WAS ADDED AS UNDISCLOSED INCOME OF ASSESSEE. 6. THE ASSESSEE IS IN APPEAL AGAINST THE AFORESAID ADDITION MADE IN THE HANDS OF ASSESSEE AND THE ISSUE RAISED BEFORE US IS THAT IN THE ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH ACTION UNDER SECTION 132 OF THE ACT, THE SAID ADDITION CANNOT BE MADE IN THE HANDS OF ASSESSEE AS IT WAS THE CASE OF NON - ABATED ASSESSMENT. 7. IN ASSESSMENT YEAR 2001 - 02, ADDITION OF RS.65,000/ - WAS MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT IN SETTING U P OF POWER LOOMS. THE FIRST PLEA RAISED BY THE ASSESSEE WAS THAT THOUGH THE SAID AMOUNT WAS ADMITTED IN THE STATEMENT RECORDED IN POST SEARCH ENQUIRIES VIDE STATEMENT UNDER SECTION 131 OF THE ACT, BUT NO INCRIMINATING MATERIAL WAS FOUND AND HENCE, THERE I S NO MERIT IN THE AFORESAID ADDITION. THE SECOND PLEA WHICH WAS RAISED WAS THAT THE SAID INVESTMENT WAS MADE IN FINANCIAL YEAR 2001 - 02 AND NOT IN ASSESSMENT YEAR 2001 - 02 AND THE SAME HAS ALSO BEEN SHOWN BY THE ASSESSEE IN ASSESSMENT YEAR 2002 - 03. THE CIT (A) VIDE PARA 7.4 ACKNOWLEDGES THAT THE ASSESSEE IN THE STATEMENT RECORDED DURING THE COURSE OF POST SEARCH ENQUIRIES HAD ADMITTED THAT INVESTMENT IN POWER LOOMS WAS OUT OF HIS UNDISCLOSED INCOME. FURTHER, SINCE THERE IS NO CLAIM THAT THE STATEMENT HAS BE EN RETRACTED EXCEPT THAT INVESTMENT WAS ACTUALLY MADE IN ASSESSMENT YEAR 2002 - 03 . H OWEVER, IN THE ABSENCE OF ANY SUPPORTING EVIDENCE ON THIS ACCOUNT, THE CIT(A) UPHELD THE ADDITION IN THE HANDS OF ASSESSEE ON THE BASIS OF STATEMENT RECORDED ON OATH. ITA N O S . 1287 TO 1290 /P U N/20 1 6 BALASO BAPUSO MUJAWAR 6 8. THE ASSESSEE IS IN APPEAL AGAINST THE AFORESAID ADDITIONS MADE IN THE HANDS OF ASSESSEE IN RESPECT OF ASSESSMENT YEARS 2000 - 01 AND 2001 - 02, WHERE THE ASSESSMENT PROCEEDINGS HAVE NOT ABATED. 9. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE IN TH IS REGARD POINTED OUT THAT SINCE THE ASSESSMENT PROCEEDINGS HAVE NOT ABATED, THEN NO ADDITION COULD BE MADE IN THE HANDS OF ASSESSEE IN THE ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. 10. THE LEARNED DEPARTMENTAL REPRESENTATIV E FOR THE REVENUE ON THE OTHER HAND, POINTED OUT THAT SOME INCRIMINATING DOCUMENTS MUST HAVE BEEN FOUND AND THAT IS WHY THE ADMISSION OF ASSESSEE AND CONSEQUENT ADDITIONS IN THE HANDS OF ASSESSEE. 11. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RE CORD. THE ASSESSMENT IN THE HANDS OF ASSESSEE HAS BEEN COMPLETED PURSUANT TO SEARCH AND SEIZURE OPERATIONS ON THE PREMISES OF ASSESSEE ON 18.05.2005 ALONG WITH SEARCH IN THE CASE OF BAGWAN GROUP. DURING THE COURSE OF POST SEARCH ENQUIRIES, THE ASSESSEE A DMITTED TO CERTAIN ADDITIONAL INCOME OF RS.1,80,000/ - ON ACCOUNT OF INVESTMENTS IN CONSTRUCTION OF FARM HOUSE AND RS.65,000/ - AS UNEXPLAINED INVESTMENT IN SETTING UP OF POWER LOOM. ADMITTEDLY, THE SAID ADMISSION WAS MADE BY THE ASSESSEE IN POST SEARCH ENQ UIRIES BY WAY OF STATEMENT RECORDED UNDER SECTION 131 OF THE ACT. THE SAID FACT OF ADMISSION HAVE MADE IN THE POST SEARCH ENQUIRIES IS NOT DISPUTED. THE LIMITED ISSUE WHICH ARISES IN THE TWO APPEALS TAKEN UP BY US IS WHETHER IN SUCH CIRCUMSTANCES, WHERE THE ADMISSION, IF ANY, WAS MADE BY WAY OF POST SEARCH ENQUIRIES AND NO INCRIMINATING MATERIAL WAS FOUND, THEN CAN THE ADDITION BE ITA N O S . 1287 TO 1290 /P U N/20 1 6 BALASO BAPUSO MUJAWAR 7 MADE IN THE HANDS OF ASSESSEE ON SUCH ADMISSION WHILE PASSING THE ASSESSMENT ORDER UNDER SECTION 144 R.W.S. 153A(B) OF THE ACT . IT IS UNDISPUTED THAT BOTH FOR ASSESSMENT YEARS 2000 - 01 AND 2001 - 02, WHERE THE ASSESSEE HAD ORIGINALLY FILED THE RESPECTIVE RETURNS OF INCOME, SINCE THE TIME LIMIT FOR ISSUE OF NOTICE UNDER SECTION 143(2) OF THE ACT HAS LAPSED AND NO PROCEEDINGS HAVE BE EN TAKEN UP, THEN IN SUCH CIRCUMSTANCES, PROCEEDINGS FOR THE SAID ASSESSMENT YEARS HAVE NOT ABATED. ONCE THE ASSESSMENTS HAVE NOT ABATED IN THE HANDS OF ASSESSEE, THEN FOR THOSE RESPECTIVE YEARS, ADDITION, IF ANY, CAN BE MADE ONLY ON THE BASIS OF INCRIMIN ATING MATERIAL FOUND DURING THE COURSE OF SEARCH. SUCH IS THE PROPOSITION LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN CIT VS. (1) CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) LTD. & (2) ALL CARGO GLOBAL LOGISTICS LTD. (2015) 374 ITR 645 (BOM). FOL LOWING THE SAID PRINCIPLE LAID DOWN BY THE JURISDICTIONAL HIGH COURT, WE HOLD THAT FOR ASSESSMENT YEARS 2000 - 01 AND 2001 - 02, IN THE ABSENCE OF ANY INCRIMINATING MATERIAL FOUND, THERE IS NO MERIT IN MAKING ANY ADDITION IN THE HANDS OF ASSESSEE. ACCORDINGLY , WE DELETE THE ADDITION OF RS.45,000/ - MADE IN ASSESSMENT YEAR 2000 - 01 AND RS.65,000/ - IN ASSESSMENT YEAR 2001 - 02. 12. NOW, COMING TO ASSESSMENT YEAR 2004 - 05 WHICH IS THE YEAR WHERE ASSESSMENT PROCEEDINGS HAVE ABATED, SINCE SEARCH AND SEIZURE ACTION UNDE R SECTION 132 OF THE ACT WAS CONDUCTED ON 18.05.2005. THE ASSESSING OFFICER NOTED THAT IN THE STATEMENT RECORDED ON 19.05.2005, THE ASSESSEE HAD STATED THAT THE CONSTRUCTION OF RESIDENTIAL PREMISES WAS STARTED DURING THE YEAR 2002 AND WAS COMPLETED IN THE YEAR 2004, WHEREIN THE ASSESSEE HAD SHOWN INVESTMENT OF RS.8 LAKHS THROUGH ITS RETURN OF INCOME FOR ASSESSMENT YEAR 2004 - 05. FURTHER, THE ASSESSEE VIDE ANSWER TO QUESTION NO.16 ADMITTED THAT HE HAD INCURRED ADDITIONAL EXPENDITURE OF RS.7 LAKHS OUT OF HIS UNDISCLOSED ITA N O S . 1287 TO 1290 /P U N/20 1 6 BALASO BAPUSO MUJAWAR 8 INCOME. THE ASSESSING OFFICER REFERRED THE VALUATION OF COST OF CONSTRUCTION OF SAID PROPERTY TO THE DVO, WHO IN TURN, WORKED OUT THE SAME AT RS.16,28,000/ - . THE ASSESSEE WAS CONFRONTED WITH THE SAME AND WAS SHOW CAUSED AS TO WHY SUM OF RS.8 ,28,000/ - SHOULD NOT BE ADDED IN HIS HANDS AS HIS UNEXPLAINED INVESTMENT IN THE SAID PROPERTY. THE ASSESSEE FAILED TO FURNISH ANY INFORMATION OR REPLY AND THEREFORE, ADDITION OF RS.8,28,000/ - WAS MADE UNDER SECTION 69B OF THE ACT. 13. FURTHER, ADDITION WAS MADE ON ACCOUNT OF UNEXPLAINED MARRIAGE EXPENSES, WHEREIN THE ASSESSEE IN THE STATEMENT RECORDED HAD STATED THAT HE HAD EXPENDED RS.4 LAKHS TOWARDS MARRIAGE OF HIS SON SHRI AMIT ON 22.05.2003 OUT OF HIS UNDISCLOSED INCOME. THE ASSESSEE DID NOT FILE A NY SUBMISSIONS TO THE SHOW CAUSE NOTICE AND SUM OF RS.4 LAKHS WAS ADDED IN HIS HANDS. FURTHER, ADDITION WAS MADE ON ACCOUNT OF INVESTMENT IN FDR OF RS.40,000/ - . 14. THE CIT(A) NOTED THAT THE ASSESSEE HIMSELF HAD ADMITTED TO HAVE INCURRED RS.7 LAKHS OUT O F HIS UNEXPLAINED SOURCES AND THE SAME WAS OFFERED AS ADDITIONAL INCOME IN THE RETURN OF INCOME FILED TWO DAYS AFTER THE ASSESSING OFFICER HAD COMPLETED THE ASSESSMENT UNDER SECTION 144 OF THE ACT. THE CIT(A) WAS OF THE VIEW THAT THE ASSESSEE WAS DISPUTIN G THE ADDITION ONLY TO THE EXTENT OF RS.1,28,000/ - . THE EXPLANATION OF ASSESSEE WAS NOT ACCEPTED IN THE ABSENCE OF ANY BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE. THE SECOND ADDITION ON ACCOUNT OF UNEXPLAINED MARRIAGE EXPENSES OF RS.4 LAKHS WAS ALSO UPH ELD IN THE HANDS OF ASSESSEE REJECTING THE CLAIM OF ASSESSEE THAT HIS WIFE HAD INCURRED THE SAID EXPENSES, WHICH IN TURN, WERE REFLECTED IN HER STATEMENT OF AFFAIRS. THE CIT(A) REJECTED THE SAME IN THE ABSENCE OF SAME BEING FURNISHED BEFORE THE ASSESSING OFFICER AND HENCE, THE VERACITY OF SUBMISSIONS ITA N O S . 1287 TO 1290 /P U N/20 1 6 BALASO BAPUSO MUJAWAR 9 COULD NOT BE CONFIRMED. THE NEXT ADDITION OF INVESTMENT IN FDR OF RS.40,000/ - WAS DELETED BY THE CIT(A). 15. THE ASSESSEE IS IN APPEAL AGAINST BOTH THE ADDITIONS AND HAS POINTED OUT THAT IN THE ABSENCE OF AN Y INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH, THERE IS NO MERIT IN MAKING THE AFORESAID ADDITIONS IN THE HANDS OF ASSESSEE. THE ASSESSEE CLAIMS THAT THE ORIGINAL RETURN OF INCOME WAS FILED ON 13.09.2004 AND NO ACTION WAS TAKEN UNDER SECTION 143(2) OF THE ACT AND HE CLAIMS THAT IT WAS A CASE OF NON - ABATED ASSESSMENT VIDE GROUND OF APPEAL NO.4. HOWEVER, THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE STRESSED THAT THERE IS NO MERIT IN THE AFORESAID ADDITIONS MADE IN THE HANDS OF ASSESSE E, SINCE THE FIRST ADDITION IN CONSTRUCTION OF RESIDENTIAL HOUSE IS ON THE BASIS OF DVOS REPORT AND THE SAME IS NOT MERITED. IN RESPECT OF SECOND ADDITION ON ACCOUNT OF MARRIAGE EXPENSES, HE FURTHER STRESSED THAT THE SAID EXPENSES HAD BEEN INCURRED BY HI S WIFE WHO IS ENGAGED IN RUNNING OF LIQUOR SHOP AND HAD THE FUNDS. 16. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE POINTED OUT THAT IN THE ABSENCE OF ANY DETAILS BEING MAINTAINED BY THE ASSESSEE IN RESPECT OF INVESTMENT IN RESIDENTIAL HOUSE, T HE DVO HAD MADE ESTIMATION AND ON THAT BASIS, ADDITION WAS MADE IN THE HANDS OF ASSESSEE. IN RESPECT OF SUBMISSIONS OF ASSESSEE THAT HIS WIFE HAD INCURRED MARRIAGE EXPENSES, THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE POINTED OUT THAT NO SUCH EVIDENCE WAS FILED BEFORE THE ASSESSING OFFICER, HENCE NO MERIT IN THE CLAIM OF ASSESSEE. ITA N O S . 1287 TO 1290 /P U N/20 1 6 BALASO BAPUSO MUJAWAR 10 17. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. AT THE OUTSET, IT MAY BE MENTIONED THAT SEARCH AND SEIZURE ACTION UNDER SECTION 132 OF THE ACT WAS C ONDUCTED AT THE PREMISES OF ASSESSEE ON 18.05.2005 . THE YEAR UNDER CONSIDERATION IS ASSESSMENT YEAR 2004 - 05, WHEREIN THE ASSESSEE HAD FURNISHED THE RETURN OF INCOME ON 13.09.2004 AND THE ASSESSMENT PROCEEDINGS FOR THE YEAR UNDER CONSIDERATION HAVE ABATED. HENCE, THE PROCEEDINGS WERE TAKEN UP BY THE ASSESSING OFFICER IN RESPECT OF VARIOUS ISSUES WHICH WERE CONFRONTED TO THE ASSESSEE. THE ASSESSEE SHOWED TOTAL NON - COMPLIANCE TO VARIOUS NOTICES ISSUED BY THE ASSESSING OFFICER AND FAILED TO FURNISH ANY RETUR N OF INCOME IN RESPONSE THERETO. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT UNDER SECTION 144 OF THE ACT. THE FIRST ADDITION MADE IN THE HANDS OF ASSESSEE WAS ON ACCOUNT OF UNEXPLAINED INVESTMENT IN CONSTRUCTION OF RESIDENTIAL PREMISES. THE STATEMEN T OF ASSESSEE WAS RECORDED IN POST SEARCH ENQUIRIES ON 19.05.2005 IN WHICH HE ADMITTED THAT HE HAD CONSTRUCTED THE PREMISES DURING THE PERIOD 2002 - 2004. HE ALSO VIDE ANSWER TO QUESTION NO.16 HAD ADMITTED THAT HE HAD INCURRED ADDITIONAL EXPENDITURE OF RS.7 LAKHS OUT OF HIS UNDISCLOSED INCOME. THE ASSESSEE HAD FAILED TO PRODUCE ANY EVIDENCE OF QUANTUM OF INVESTMENTS AND SOURCES OF INVESTMENT BEFORE THE ASSESSING OFFICER. HENCE, THE ASSESSING OFFICER REFERRED THE MATTER TO THE DVO TO DETERMINE THE VALUE OF COST OF CONSTRUCTION OF SAID PREMISES. THE DVO IN HIS REPORT WORKED OUT THE SAME AT RS.16,28,000/ - . THE ASSESSEE IN THE BOOKS OF ACCOUNT AND IN THE ORIGINAL RETURN OF INCOME HAD DECLARED THE COST OF CONSTRUCTION AT RS.8 LAKHS AND THE ASSESSING OFFICER TH US, MADE AN ADDITION OF RS.8,28,000/ - . THE ASSESSEE CLAIMS THAT SUM OF RS.7 LAKHS HAS BEEN OFFERED BY HIM AND THE BALANCE ADDITION IS OF ONLY RS.1,28,000/ - . IN THE TOTALITY OF THE ABOVE SAID FACTS AND CIRCUMSTANCES, WHERE THE ASSESSEE HAS FAILED TO MAINT AIN DETAILS OF INVESTMENT MADE AN D SOURCES THEREOF, THERE IS NO ALTERNATIVE BUT TO ITA N O S . 1287 TO 1290 /P U N/20 1 6 BALASO BAPUSO MUJAWAR 11 GET THE COST OF CONSTRUCTION VALUED FROM THE DVO. THE ASSESSING OFFICER HAD OBTAINED THE SAID REPORT OF THE DVO, WHICH WAS ALSO CONFRONTED TO THE ASSESSEE BUT HE FAILED TO CONTROVERT THE SAME. ACCORDINGLY, THE BALANCE ADDITION OF RS.1,28,000/ - MERITS TO BE UPHELD IN THE HANDS OF ASSESSEE. 18. NOW, COMING TO THE OTHER ADDITION MADE IN THE HANDS OF ASSESSEE I.E. ON ACCOUNT OF UNEXPLAINED MARRIAGE EXPENSES OF HIS SON WHICH WA S CONDUCTED DURING THE YEAR. THE ASSESSEE WHILE RECORDING THE STATEMENT HAD ADMITTED THAT HE HAD EXPENDED RS.4 LAKHS TOWARDS MARRIAGE OF HIS SON OUT OF UNDISCLOSED INCOME , BUT NO INCRIMINATING DOCUMENTS WERE FOUND DURING THE COURSE OF SEARCH FROM THE POSS ESSION OF ASSESSEE IN THIS REGARD. THE DISCLOSURE BY THE ASSESSEE WAS IN THE POST SEARCH ENQUIRIES AND NOT VIDE STATEMENT RECORDED UNDER SECTION 132(4) OF THE ACT. IN THE ABSENCE OF ANY EVIDENCE FOUND DURING THE COURSE OF SEARCH AND MERELY ON THE BASIS O F SAID STATEMENT, NO ADDITION ON ACCOUNT OF MARRIAGE EXPENSES MERITS TO BE MADE IN THE HANDS OF ASSESSEE. ACCORDINGLY, WE HOLD SO. IN ANY CASE, THE ASSESSEE HAS POINTED OUT THAT THE SAID AMOUNT HAS BEEN SHOWN BY HIS WIFE IN CASH FLOW STATEMENT. ACCORDIN GLY, WE DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION OF RS.4 LAKHS IN THE HANDS OF ASSESSEE. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN ASSESSMENT YEAR 2004 - 05 ARE THUS, PARTLY ALLOWED. 19. THE LAST APPEAL BEFORE US IS RELATING TO ASSESSMENT YEAR 2005 - 06, WHEREIN AN ADDITION OF RS.1 LAKH WAS MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT IN RENOVATION OF RESIDENTIAL HOUSE. THE EXPLANATION OF ASSESSEE IN THIS REGARD WAS THAT THE SAID HOUSE WAS IN THE NAME OF HIS WIFE AND ADDITION, IF ANY, WA S TO BE MADE IN HER HANDS. THE ASSESSING OFFICER HAD MADE THE ADDITION IN THE HANDS OF ASSESSEE ON THE BASIS OF STATEMENT GIVEN IN POST ITA N O S . 1287 TO 1290 /P U N/20 1 6 BALASO BAPUSO MUJAWAR 12 SEARCH ENQUIRIES. NO EVIDENCE IN THIS REGARD WAS FOUND DURING THE COURSE OF SEARCH AND IN THE ABSENCE OF THE SAME AND IN VIEW OF OUR PARITY OF REASONING AS IN ASSESSMENT YEAR 2004 - 05, WE FIND NO MERIT IN THE AFORESAID ADDITION OF RS.1 LAKH IN THE HANDS OF ASSESSEE. ACCORDINGLY, WE DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION OF RS.1 LAKH. 20 . IN THE RESULT, APPEALS OF ASSESSEE IN ASSESSMENT YEARS 2000 - 01, 2001 - 02 AND 2005 - 06 ARE ALLOWED AND APPEAL OF ASSESSEE IN ASSESSMENT YEAR 2004 - 05 IS PARTLY ALLOWED. ORDER PRONOUNCED ON THIS 23 RD DAY OF AUGUST , 201 7 . SD/ - SD/ - (ANIL CHATURVEDI ) (SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 23 RD AUGUST , 201 7 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) , PUNE - 11 ; 4. / THE PR. CIT (CENTRAL) , PUNE ; 5. , , / DR A , ITAT, PUNE; 6. / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE