ITO, Central, Aurangabad, Aurangabad V. Narendra J. Agarwal (HUF), Jalgaon

ITA 135/PUN/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9750 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-08-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 22-08-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 02-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MUKESH VERMA
• Assessee Lawyers: M MANI; DR JAYANT M RANADE
• Keywords: Unexplained cash credit; Income from undisclosed sources; Search and seizure; Assessment record
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER , AND SHRI G.S.PANNU, ACCOUNTANT MEMBER. ITA.NO.135 AND 136/PN/2011 (ASSTT. YEAR : 2005-06 AND 2006-07) ITO, CENTRAL, AURANGABAD. .. APPELLANT VS. NARENDRA J. AGRAWAL (HUF) JALGAON. .. RESPONDENT AND ITA.NO.137/PN/2011 (ASSTT. YEAR : 2006-07) ITO, CENTRAL, AURANGABAD. .. APPELLANT VS. NARENDRA J. AGRAWAL (INDIVIDUAL) JALGAON. .. RESPONDENT ASSESSEE BY : SHRI M.MANI & DR.JAYANT M.RANADE DEPARTMENT BY : SHRI MUKESH VERMA, CIT(DR) DATE OF HEARING : 22.08.2012 DATE OF PRONOUNCEMENT : 29.08.2012 ORDER PER G.S.PANNU, AM : THE CAPTIONED THREE APPEALS PREFERRED BY THE REVEN UE PERTAIN TO TWO DIFFERENT ASSESSEES BELONGING TO THE SAME FA MILY AND INVOLVE CERTAIN COMMON ISSUES, THEREFORE, THEY WERE HEARD T OGETHER AND A CONSOLIDATED ORDER IS BEING PASSED FOR THE SAME OF CONVENIENCE AND BREVITY. 2 2. ITA.NO.135 & 136/PN/20 ARE APPEALS PREFERRED BY THE REVENUE AGAINST A COMMON ORDER OF THE CIT(A) DATED 26.11.2010 PERTAINING TO A.YS. 2005-06 AND 2006-07 IN THE CASE OF SHRI NARENDRA JWALAPRASAD AGRAWAL (HUF), JALGAON. 3. IN BOTH THESE APPEALS, COMMON ISSUE INVOLVED REL ATES TO ADDITIONS OF RS.11,32,560/- FOR A.Y. 2005-06 AND RS .4,16,250/- FOR A.Y. 2006-07 ON ACCOUNT OF UNPROVED SUNDRY CREDITOR S FOR PURCHASES. THE ASSESSING OFFICER HAS MADE ADDITION S BY INVOKING SECTION 68 OF THE ACT ON THE GROUND THAT THE BALANC ES LYING IN THE ACCOUNT OF SUNDRY CREDITORS TO THE ABOVE EXTENT REM AINED UNEXPLAINED. 4. AS PER THE ASSESSING OFFICER, THE ADDITION IN QU ESTION WAS JUSTIFIED IN AS MUCH AS THE ASSESSEE HAD NOT FILED ANY CONFIRMATION LETTERS OF THE CREDITORS; THAT THE OUTSTANDING LIAB ILITY FOR PURCHASES HAD NOT BEEN RECORDED IN THE ROUGH CASH BOOK FOUND DURING THE COURSE OF SEARCH AND THEREFORE THE LIABILITY WAS NO T GENUINE. FOR THE AFORESAID REASONS, THE ASSESSING OFFICER CONSID ERED SUNDRY CREDITORS OF RS.11,32,560/- FOR A.Y. 2005-06 AS UNE XPLAINED AND FOR THE A.Y. 2006-07, HE MADE AN ADDITION OF RS.4,16,25 0/- AFTER REDUCING THE ADDITION OF RS.11,32,560/- MADE IN THE EARLIER YEAR. 5. BEFORE THE CIT(A), THE ASSESSEE SUBMITTED THAT T HE CREDITORS HAVE SUPPLIED FOOD GRAINS TO THE ASSESSEE, WHO ARE EITHER FARMERS OR KACCHA ARTIYAS; THAT THE PURCHASES FROM SAID PERSON S HAVE BEEN ACCEPTED TO BE GENUINE IN AS MUCH AS NO ADDITION HA D BEEN MADE ON SUCH GROUND; THAT THERE WAS NO EVIDENCE FOUND IN THE SEARCH TO SAY THAT ANY PAYMENT WAS MADE TO SUCH CREDITORS OUT SIDE THE BOOKS OF ACCOUNT. IT WAS ALSO CONTENDED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER DID N OT CALL FOR ANY CONFIRMATIONS FROM THE CREDITORS. THE ASSESSEE ALS O EXPLAINED THAT MERELY BECAUSE THE SAID CREDIT PURCHASES WERE NOT A PPEARING IN THE ROUGH CASH BOOK AT THE YEAR END CANNOT LEAD TO AN I NFERENCE THAT THE SAME WERE UNEXPLAINED OR INGENUINE. THE ASSESS EE POINTED OUT 3 THAT SUCH ENTRIES WERE DULY APPEARING IN THE REGULA R ACCOUNT BOOKS AND, THEREFORE, THERE WAS NO JUSTIFICATION TO MAKE AN ADDITION MERELY BECAUSE SUCH ENTRIES DID NOT APPEAR IN THE R OUGH CASH BOOK. THE CIT(A) HAS SINCE DELETED THE ADDITION BY MAKING THE FOLLOWING DISCUSSION IN PARA 5.2 OF THE IMPUGNED ORDER. THE A.O. HAS MADE ADDITION FOR WANT OF CONFIRMATIO NS FROM THE CREDITORS. THE APPELLANT HAS CLAIMED THAT THE A.O. HAS NEVER REQUIRED THE APPELLANT DURING THE ASSESSMENT PROCEEDINGS TO FILE CONFIRMATION LETTERS IN RESPEC T OF CREDITORS FOR PURCHASES. ON PERUSAL OF THE ASSESSMENT RECORD IT HAS BEEN NOTICED THAT THERE IS NO EVIDENCE IN THE ASSES SMENT RECORD THAT THE A.O. HAS ASKED FOR THE CONFIRMATION LETTERS OF THE OUTSTANDING CREDITORS. THE A.O. HAS ACCEPTED T HE PURCHASES TO BE GENUINE AS THE BOOK RESULTS WERE AC CEPTED BY THE A.O. THE A.O. HAS NOT BROUGHT ON RECORD ANY EV IDENCE THAT THE SAID OUTSTANDING AMOUNTS HAVE BEEN PAID BY THE APPELLANT OUTSIDE THE BOOKS AND HENCE THE SAID AMOU NT IS NOT OUTSTANDING EITHER BY VERIFYING THE SAID CREDITORS OR BY WAY OF ANY OTHER EVIDENCE. NO SUCH EVIDENCE ABOUT THE OUT STANDING AMOUNTS OF THE SAID CREDITORS HAVE BEEN PAID OUT OF THE BOOKS WAS FOUND IN SEARCH ACTION. IN VIEW OF THE ABOVE F ACTS AND DISCUSSION, I AM OF THE CONSIDERED VIEW THAT THE A. O. IS NOT JUSTIFIED IN MAKING ADDITION OF RS.11,32,560/- AND RS.4,16,250/- IN A.YRS. 2005-06 AND 2006-07 RESPECT IVELY ON ACCOUNT OF UNPROVED CREDITORS FOR PURCHASES. GROUN D NO.2 FOR A.YRS. 2005-06 AND ADDITIONAL GROUND FOR A.Y. 2006- 07 STAND ALLOWED. 6. BEFORE US, THE LD. DEPARTMENTAL REPRESENTATIVE S UBMITTED THAT IN THE ABSENCE OF THE CONFIRMATION LETTERS OF THE C REDITORS, THE OUTSTANDING BALANCES COULD NOT BE CONSIDERED AS EXP LAINED WITHIN THE MEANING OF SECTION 68 OF THE ACT. IT WAS, THER EFORE, CONTENDED THAT THE CIT(A) HAS WRONGLY SET ASIDE THE ADDITION MADE BY THE ASSESSING OFFICER. ON THE OTHER HAND, THE LD. COUN SEL FOR THE RESPONDENT ASSESSEE HAS RELIED UPON THE FINDING OF THE CIT(A) IN SUPPORT OF THE CASE OF THE ASSESSEE. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALS O PERUSED THE ORDERS OF THE AUTHORITIES BELOW. IN OUR CONSID ERED OPINION, THE CIT(A) MADE NO MISTAKE IN DELETING THE ADDITION. O STENSIBLY, IN THIS CASE SEARCH AND SEIZURE ACTION WAS CARRIED OUT, WHI CH RESULTED IN SEIZURE OF INCRIMINATING MATERIAL, DOCUMENTS ETC. THE ASSESSING 4 OFFICER HAS NOT REFERRED TO ANY SINGLE INSTANCE OR MATERIAL FOUND IN THE COURSE OF SEARCH WHICH WOULD INDICATE THAT THE CREDITORS IN QUESTION ARE EITHER INGENUINE OR FICTITIOUS. MOREO VER, THE CIT(A) HAS APPRECIATED THE ASSESSEES ASSERTION THAT THE PURCH ASES FROM SUCH CREDITORS HAVE NOT BEEN DOUBTED BY THE ASSESSING OF FICER. THE SUBSTANTIVE PLEA OF THE ASSESSING OFFICER IS THAT S UCH OUTSTANDING LIABILITIES WERE NOT ENTERED IN THE ROUGH CASH BOOK AND THAT CONFIRMATIONS OF THE CREDITORS WERE NOT FURNISHED D URING THE ASSESSMENT PROCEEDINGS. ON BOTH THESE COUNTS, IN O UR VIEW, THE CIT(A) HAS ADEQUATELY ADDRESSED THE ISSUE. FIRSTLY THERE IS NO NEGATION TO THE FINDING OF THE CIT(A), BASED ON HIS PERUSAL OF THE ASSESSMENT RECORDS, THAT THE ASSESSING OFFICER DID NOT ASK FOR CONFIRMATION LETTERS OF THE OUTSTANDING CREDITORS A T ALL. SECONDLY, MERELY BECAUSE AN ENTRY IS NOT APPEARING IN THE ROU GH CASH BOOK, AND IS OTHERWISE APPEARING IN THE REGULAR BOOKS, IT CANNOT BE HELD THAT THE CREDITORS WERE INGENUINE. CONSIDERED IN T HIS MANNER, WE FIND NO REASONS TO INTERFERE WITH THE ULTIMATE CONC LUSION OF THE CIT(A) IN DELETING THE IMPUGNED ADDITION. THUS, ON THIS GROUND THE REVENUE HAS TO FAIL. SINCE THE ADDITION IN BOTH THE YEARS STAND ON SIMIL AR FOOTING, THE APPEALS OF THE REVENUE FOR A.Y. 2005-06 AND 200 6-07 ARE HEREBY DISMISSED. ITA.NO.137/PN/2011 (SHRI NARENDRA J.AGRAWAL (INDIV IDUAL) 8. IN THIS CASE THE FIRST ISSUE IS WITH REGARD TO A N ADDITION OF RS.10,46,916/-. THE ASSESSING OFFICER ADDED AN AMO UNT OF RS.10,46,916/- AS UNDISCLOSED INCOME IN THE HANDS O F THE ASSESSEE ON THE GROUND THAT THE SAME REFLECTED BENAMI PROFIT EARNED BY THE ASSESSEE IN THE NAME OF M/S.AMOL TRADERS. AS PER T HE ASSESSING OFFICER, THE ASSESSEE HAD OPERATED AN ACCOUNT IN TH E NAME OF M/S.AMOL TRADERS WITH THE COMMODITY EXCHANGE. THE ASSESSING OFFICER NOTICED TWO CREDIT ENTRIES IN THE BANK ACCO UNT MAINTAINED IN THE NAME OF M/S.AMOL TRADERS OF RS.2,50,000/- AND R S.7,96,916/- DATED 10.07.2005, WHICH ACCORDING TO HIM, REPRESENT ED PROFITS FROM 5 COMMODITY TRADING. THE ASSESSING OFFICER NOTED THA T THE ASSESSEE OPERATED THE BANK ACCOUNT IN THE NAME OF M/S.AMOL T RADERS IN BENAMI CAPACITY AS BLANK CHEQUE BOOK OF THE SAID AC COUNT WAS FOUND IN THE CUSTODY OF THE ASSESSEE DURING THE SEA RCH OPERATION. AS PER THE ASSESSING OFFICER, SHRI ASHOK JAIN WAS N OT A MAN OF MEANS AND, THEREFORE, ACCORDING TO HIM, SUCH PROFIT FROM COMMODITY TRADING BELONGED TO THE ASSESSEE, AND HEN CE THE ADDITION OF RS.10,46,916 (RS.2,50,000/- + RS.7,96,9 16/-) IN THE HANDS OF THE ASSESSEE. 9. IN APPEAL BEFORE THE CIT(A), THE ASSESSEE CONTEN DED THAT M/S.AMOL TRADERS WAS AN INDEPENDENT CONCERN OWNED B Y SHRI ASHOK JAIN AND THAT THE ASSESSEE WAS NOT CONCE RNED WITH THE TRANSACTIONS CARRIED OUT BY M/S.AMOL TRADERS. THE TRANSACTIONS WITH M/S.AMOL TRADERS WERE DULY ACCOUNTED FOR BY TH E ASSESSEE AND THAT THERE WAS NO EVIDENCE TO PROVE THAT THE PR OFIT OF THE COMMODITY TRADING EARNED BY M/S.AMOL TRADERS BELONG ED TO THE ASSESSEE. AS PER THE ASSESSEE, THERE WAS NO EVIDEN CE TO SHOW THAT HE WAS THE BENAMIDAR OF M/S.AMOL TRADERS PROPRIETOR SHRI ASHOK JAIN. THE CIT(A) HAS UPHELD THE PLEA OF THE ASSESS EE BY MAKING THE FOLLOWING DISCUSSION IN PARAS 10.2 AND 10.3 OF HIS ORDER: 10.2. I HAVE CAREFULLY CONSIDERED THE ASSESSMENT O RDER AND REMAND REPORT OF THE A.O. AND ALSO THE SUBMISSI ONS OF THE APPELLANT. ON PERUSAL OF THE SAME, IT IS NOTIED TH AT THE A.O. HAS ASSUMED THAT THE AMOUNTS CREDITED IN THE BANK A CCOUNT OF M/S.AMOL TRADERS ON 10.06.2005 IS THE PROFIT EAR NED BY M/S.AMOL TRADERS. HOWEVER, ON PERUSAL OF THE COPY OF THE ACCOUNT OF M/S.AMOL TRADERS IN THE BOOKS OF MULTI COMMODITIES SUBMITTED BY THE APPELLANT, IT IS NOTIC ED THAT THE AMOUNT RECEIVABLE FROM MULTI COMMODITIES AS ON 31/0 3/2005 RS.10,20,000/- HAS BEEN PAID BY THE SAID CONCERN TO M/S.AMOL TRADERS, WHICH IS INCLUDED IN THE AMOUNT O F RS.10,46,916/- CREDITED IN THE UNION BANK OF INDIA ACCOUNT OF M/S.AMOL TRADERS. THEREFORE, THE AMOUNT OF RS.10,4 6,916/- CANNOT BE THE INCOME OF A.Y. 2006-2007. SECONDLY, THE A.O. HAS NOT VERIFIED FROM MULTI COMMODITIES THE NATURE OF THE OUTSTANDING AMOUNT OF RS.10,20,000/- OR PAYMENT MAD E BY THE SAID CONCERN TO M/S.AMOL TRADERS OF RS.10,46,91 6/-. THIRDLY, THE A.O. HAS NOT VERIFIED SHRI ASHOK JAIN, WHO HAS OPERATED THE ACCOUNT OF M/S.AMOL TRADERS IN SUPPORT OF HIS CONTENTION THAT THE SAID ACCOUNT IS BENAMI ACCOUNT OF THE 6 APPELLANT HIMSELF. THE A.O. HAS NOT BROUGHT ON REC ORD ANY CORROBORATIVE EVIDENCE IN SUPPORT OF HIS CLAIM THAT THE AMOUNT OF M/S.AMOL TRADERS WITH THE BANK AND WITH MULTI COMMODITIES IS THE BENAMI ACCOUNT OF THE APPELLANT. 10.3. IN VIEW OF THE ABOVE FACTS AND DISCUSSION, I AM OF THE CONSIDERED VIEW THAT THE A.O. IS NOT JUSTIFIED IN T REATING THE AMOUNT OF RS.10,46,916/- AS THE ALLEGED SUPPRESSED PROFIT OF THE APPELLANT. THE A.O. IS THEREFORE DIRECTED TO D ELETE THE ADDITION OF RS.10,46,916/-. GROUND NO.3 FOR THE A. Y. 2006- 2007 ACCORDINGLY STANDS ALLOWED. 10. BEFORE US, APART FROM REITERATING THE DISCUSSIO N MADE BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER, NO OTHER ARGUMENT HAS BEEN PUT FORTH BY THE LD. DEPARTMENTAL REPRESENTATI VE. THE REASONS WEIGHING WITH THE ASSESSING OFFICER TO MAKE THE ADDITION HAVE ALREADY BEEN NOTED BY US IN THE EARLIER PART O F THE ORDER, AND ARE NOT BEING REPEATED FOR THE SAKE OF BREVITY. ON THE OTHER HAND, LD. COUNSEL FOR THE RESPONDENT ASSESSEE VEHEMENTLY STATED THAT THE CIT(A) WAS JUSTIFIED IN HOLDING THAT ASSESSEE WAS N OT A BENAMIDAR OF M/S.AMOL TRADERS PROPRIETOR SHRI ASHOK JAIN AS THER E WAS NO EVIDENCE TO SAY SO. MOREOVER, IT IS POINTED OUT TH AT THE ASSESSING OFFICER HAD NOT VERIFIED SHRI ASHOK JAIN AT ANY STA GE TO SUBSTANTIATE THE ALLEGATION THAT THE ASSESSEE WAS A BENAMIDAR OF M/S.AMOL TRADERS PROPRIETOR SHRI ASHOK JAIN. 11. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS. IN SUM AND SUBSTANCE, WE FIND THAT THE INFERENCE OF THE AS SESSING OFFICER THAT THE ASSESSEE HAS UNDERTAKEN BENAMI DEALINGS IN COMMODITY TRADING THROUGH M/S.AMOL TRADERS PROPRIETOR SHRI A SHOK JAIN IS BASED ON INADEQUATE EVIDENCE. THE CIT(A) HAS REFER RED TO THE COPY OF ACCOUNT OF M/S.AMOL TRADERS AS FOUND IN THE BOOK S OF MULTI COMMODITIES EXCHANGE. IT IS ALSO NOTICED BY CIT(A) THAT THERE HAS BEEN NO VERIFICATION CARRIED OUT WITH RESPECT TO SH RI ASHOK JAIN WHO IS SAID TO HAVE OPERATED THE ACCOUNT AS PROPRIETOR OF M/S.AMOL TRADERS. ON THE BASIS OF THE DISCUSSION IN THE ORD ER OF THE CIT(A), WE FIND NO REASONS TO UPHOLD THE PLEA OF THE ASSESS ING OFFICER OF ANY BENAMI DEALINGS HAVING DONE BY THE ASSESSEE IN THE NAME OF 7 M/S.AMOL TRADERS PROPRIETOR SHRI ASHOK JAIN. THUS, ON THIS GROUND REVENUE HAS TO FAIL. 12. THE LAST GROUND IN THIS APPEAL IS WITH REGARD T O AN ADDITION OF RS.10,00,000/- MADE BY THE ASSESSING OFFICER ON ACC OUNT OF UNEXPLAINED CREDITS APPEARING IN THE BANK ACCOUNTS OF OTHER PERSONS. AS PER THE ASSESSING OFFICER, THE ASSESSE E IS SAID TO HAVE OPENED AND OPERATED BANK ACCOUNTS WITH BANKS AND AL SO WITH A CONCERN M/S.BABA COMMODITIES, JALGAON, IN THE NAMES OF SHRI PATHAN R. KHAN AND SHRI AMOL JAIN. AS PER TH E ASSESSING OFFICER, THE ASSESSEE HAD FULL CONTROL OVER SUCH AC COUNTS AS THE CHEQUE BOOKS WERE FOUND IN THE POSSESSION OF THE AS SESSEE. FURTHER, WHILE OPENING SUCH BANK ACCOUNTS, THE ASSE SSEE HAD GIVEN INTRODUCTION OF THE SAID PERSONS TO THE BANK. THE ASSESSING OFFICER ALSO NOTICED THAT THE AMOUNTS WITHDRAWN FROM SUCH B ANK ACCOUNTS WERE FOUND NOTED IN THE ROUGH CASH BOOK SEIZED DURI NG THE COURSE OF SEARCH. IN PARTICULAR, THE ASSESSING OFFICER NO TICED THAT THERE WERE DEPOSITS OF CASH OF RS.5,00,000/- EACH IN THE TWO ACCOUNTS WHICH WERE NOT RECORDED IN THE ACCOUNT BOOKS AND, T HEREFORE, THE SAME WERE ADDED AS UNEXPLAINED INCOME IN THE HANDS OF THE ASSESSEE. BEFORE THE CIT(A), THE ASSESSEE CONTENDE D THAT THERE WAS NO EVIDENCE IN SUPPORT OF THE CLAIM THAT ASSESSEE W AS BENAMIDAR OF SHRI PATHAN R. KHAN AND SHRI AMOL JAIN; THAT THERE WAS NO EVIDENCE TO SHOW THAT AMOUNT OF RS.5,00,000/- EACH WAS DEPOSITED BY THE ASSESSEE IN THE BANK ACCOUNTS OF THE AFORESA ID TWO INDIVIDUALS. FURTHER, AS PER THE ASSESSEE, THE ONU S WAS ON THE ASSESSING OFFICER TO BRING EVIDENCE BY EXAMINING SH RI PATHAN R. KHAN AND SHRI AMOL JAIN OR M/S.BABA COMMODITIES OR THE BANK OFFICIALS TO PROVE THAT THE ASSESSEE WAS A BENAMIDA R. APART FROM ALL THESE, THE ASSESSEE ALSO POINTED OUT THAT THE ACCOU NT STATEMENT OF TWO INDIVIDUALS IN THEIR DEALINGS WITH M/S.BABA COM MODITIES SHOWED THAT THEY HAD SUFFERED LOSSES OF RS.5,34,180 /- AND RS.5,00,906/-. ACCORDING TO THE ASSESSEE, IF THE P LEA OF THE ASSESSING OFFICER WAS TO BE UPHELD TO THE EFFECT TH AT ASSESSEE WAS BENAMIDAR, THEN THE ASSESSEE SHOULD BE ALLOWED BENE FIT OF SUCH SET 8 OFF OF LOSSES ALSO. THE AFORESAID REASONS HAVE BEE N APPRECIATED BY THE CIT(A) IN THE FOLLOWING MANNER: 11.2. I HAVE CAREFULLY CONSIDERED THE ASSESSMENT O RDER AND REMAND REPORT OF THE A.O. AND THE SUBMISSIONS A ND ARGUMENTS OF THE APPELLANT. ON PERUSAL OF THE SAME, IT IS NOTICED THAT THE A.O. HAS NOT BROUGHT ON RECORD COR ROBORATIVE EVIDENCE IN SUPPORT OF HIS CONTENTIONS THAT THE APP ELLANT IS A BENAMIDAR OF SHRI PATHAN R. KHAN AND SHRI AMOL JAIN . THE A.O. HAS ALSO NOT BROUGHT ON RECORD ANY CORROBORATI VE EVIDENCE IN SUPPORT OF HIS CONTENTION THAT THE CASH OF RS.5,00,000/- EACH DEPOSITED IN BANK ACCOUNTS OF SH RI PATHAN R. KHAN AND SHRI AMOL JAIN BELONGED TO THE APPELLAN T AND THE SAME REPRESENTS UNACCOUNTED INCOME OF THE APPELLANT . THE A.O. HAS NOT EVEN ATTEMPTED TO PROVE HIS CONTENTION S BY EXAMINING/VERIFYING SHRI PATHAN R. KHAN AND SHRI AM OL JAIN, M/S. BABA COMMODITIES AND BANK OFFICIALS OF THE BAN KS OF SHRI PATHAN R. KHAN AND SHRI AMOL JAIN. IN VIEW OF THE ABOVE FACTS, CONTENTIONS RAISED BY THE APPELLANT AS STATE D ABOVE AND ALSO THE RATIO LAID DOWN BY THE DECISIONS RELIED ON BY THE APPELLANT, I AM OF THE CONSIDERED VIEW THAT THE A.O . IS NOT JUSTIFIED IN HOLDING THAT THE APPELLANT IS A BENAMI DAR OF SHRI PATHAN R. KHAN AND SHRI AMOL JAIN AND IN HOLDI NG THAT THE CASH OF RS.5,00,000/- EACH DEPOSITED IN THE BAN K ACCOUNTS OF SHRI PATHAN R. KHAN AND SHRI AMOL JAIN BELONGED TO THE APPELLANT. THE A.O. IS THEREFORE DIRECTED TO DELETE THE ADDITION OF RS.10,00,000/-. GROUND NO.4 FOR THE A. Y. 2006- 2007 STANDS ALLOWED. 13. BEFORE US, THE LD. DEPARTMENTAL REPRESENTATIVE HAS RELIED UPON THE ORDER OF THE ASSESSING OFFICER IN SUPPORT OF THE CASE OF THE REVENUE. AS PER THE LD. DEPARTMENTAL REPRESENTATIV E, THE SEARCH REVEALED THAT THE CHEQUE BOOKS OF THE BANK ACCOUNTS MAINTAINED IN THE NAMES OF SHRI PATHAN R. KHAN AND SHRI AMOL JAIN WERE FOUND ON THE ASSESSEE AND THE AMOUNTS WITHDRAWN FROM SUCH BANK ACCOUNTS WERE NOTED IN THE ROUGH CASH BOOK MAINTAIN ED WHICH WOULD SHOW THAT THE ASSESSEE WAS INDEED THE REAL OW NER OF THE TRANSACTIONS CARRIED OUT UNDER THE NAMES OF SHRI PA THAN R. KHAN AND SHRI AMOL JAIN. ON THE OTHER HAND, THE LD. RE PRESENTATIVE FOR THE ASSESSEE HAS POINTED OUT THAT THE CIT(A) MADE N O MISTAKE IN HOLDING THAT THERE WAS NO EVIDENCE TO SHOW THAT ASS ESSEE WAS A BENAMIDAR OF THE ACCOUNTS STANDING IN THE NAMES OF SHRI PATHAN R. KHAN AND SHRI AMOL JAIN. 9 14. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS AND FIND OURSELVES INCLINED TO UPHOLD THE CONCLUSIONS BY THE CIT(A). QUITE CLEARLY, THE ASSESSING OFFICER HAS NOT REFERRED TO ANY CORROBORATIVE EVIDENCE TO SUBSTANTIATE THAT THE CASH DEPOSITS OF RS.5,00,000/- EACH IN THE BANK ACCOUNTS OF SHRI PATHAN R. KHAN AN D SHRI AMOL JAIN BELONGED TO THE ASSESSEE. IN FACT, THERE IS N O ATTEMPT MADE BY THE ASSESSING OFFICER TO EXAMINE ANY OF THE PARTIES , NAMELY, SHRI PATHAN R. KHAN OR SHRI AMOL JAIN OR M/S.BABA C OMMODITIES, WITH WHOM TRANSACTIONS HAVE BEEN UNDERTAKEN BY THE AFORESAID PERSONS. IN FACT NO VERIFICATION HAS BEEN CARRIED OUT WITH THE BANK AUTHORITIES ALSO WITH WHOM THE TWO INDIVIDUALS ARE MAINTAINING THEIR BANK ACCOUNTS. FOR ALL THE ABOVE REASONS WE THEREFORE FIND THAT THE CIT(A) WAS JUSTIFIED IN DELETING THE ADDIT ION AS THE CASE OF THE ASSESSING OFFICER WAS BUILT ON MERE CONJECTURES AND SURMISES. WE HEREBY AFFIRM THE ORDER OF THE CIT(A) AND ACCORD INGLY, THE REVENUE HAS TO FAIL. 15. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE 29 TH DAY OF AUGUST, 2012. SD/- SD/- ( SHAILENDRA KUMAR YADAV ) ( G.S.PANNU ) JUDICIAL MEMBER ACCOUNTANT MEMBER GSPS PUNE, DATED THE 29 TH AUGUST, 2012. COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE ITO, CENTRAL, AURANGABAD. 3. THE CIT(A), AURANGABAD. 4. THE CIT(CENTRAL), NAGPUR. 5. THE DR A BENCH, PUNE. 6. GUARD FILE. BY ORDER //TRUE COPY// PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE.