BITHAL DAS PARWAL, Jaipur V. ACIT, Jaipur

ITA 138/JPR/2011

• Counselvise Citation: 13823114 RSA 2011
• Duration Of Justice: 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 17-10-2011
• Assessment Year: 2008-2009
• Appeal Filed On: 21-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VINOD JOHARI
• Assessee Lawyers: G G MUNDRA
• Keywords: Unexplained investment; Loose papers; Corroborative evidences
• Section: 153A; 132

Judgement Text

1 ITA 138(2)-11 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH B JAIPUR BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ITA NO. 138/JP/2011 ASSTT. YEAR : 2008-09. SHRI BITHAL DAS PARWAL, VS. THE ACIT, CENTRAL CIR CLE-1, P/O M/S. MAHESHWARI ASSOCIATES, JAIPUR. PARTANIYON KA MANDIR, PARTANIYON KA RASTA, JOHARI BAZAR, JAIPUR. ITA NO. 133/JP/2011 ASSTT. YEAR : 2008-09. THE ACIT, CENTRAL CIRCLE-1, VS. SHRI BITHAL DAS P ARWAL, JAIPUR. JAIPUR. (APPELLANTS) (RESPONDENTS) ASSESSEE BY : SHRI G.G. MUNDRA DEPARTMENT BY : SHRI VINOD JOHARI DATE OF HEARING : 17.10.2011 DATE OF PRONOUNCEMENT : 21.10.2011. ORDER DATE OF ORDER : 21/10/2011. PER BENCH : THESE ARE TWO CROSS APPEALS BY ASSESSEE AND DEPART MENT AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 2008-09. 2. IN ASSESSEES APPEAL FIRST ISSUE RELATES TO CONF IRMING ADDITION OF RS. 16,20,000/-. 3. BRIEF FACTS OF THE CASE ARE THAT A SEARCH AND SE IZURE OPERATION WAS CARRIED OUT AT THE BUSINESS PREMISES OF THE ASSESSEES FIRM M/S. M AHESHWARI ASSOCIATES AND RESIDENTIAL 2 PREMISES OF THE ASSESSEE. DURING THE COURSE OF SEA RCH AND SEIZURE OPERATION, VARIOUS DOCUMENTS WERE FOUND AND SEIZED WHICH WERE INTER AL IA INCLUDED PHOTO COPIES OF CHEQUES AT PAGES 28 AND 29 OF EXHIBIT 23 AND ON THE BACK SI DE OF PAGE 29, THERE WERE SOME CALCULATIONS WHICH HAS BEEN REPRODUCED IN THE ORDER OF LD. CIT (A) AT PAGE 2. 3.1. AS PER THIS PAGE THERE WAS CASH RECEIPT TOTALING TO RS. 3 3 LAKHS ON THE LEFT HAND SIDE. ON THE RIGHT HAND SIDE, DETAILS OF DIFFE RENT CHEQUES RECEIVED HAVE BEEN MENTIONED NAMELY RS. 13,66,666/-, RS. 1 IAKH, RS. 1 2,66,667/- AND FURTHER RS. 8,66,667/- TOTALING TO RS. 36 LAKHS. FURTHER ENTRY OF RS. 5 LAKHS BY WAY OF DD IS MENTIONED AND TOTAL HAS BEEN ARRIVED AT RS. 41 LATH S. BELOW RS. 41 LAKHS, RS. 33,86,000/-HAS BEEN MENTIONED AND FINAL TOTAL OF RS . 74,86,000/- IS MENTIONED. RS. 33,86,000/- IS THE TOTAL OF THE LEFT SIDE FIGURES W HICH ARE THE PAYMENTS RECEIVED IN CASH, OF RS. 33 LAKHS AS ABOVE PLUS OTHER CHARGES, POWER OF ATTORNEY, LIGHT AND WATER CHARGES AND HOUSE TAX. SH. H.N. PARWAL, ON BE ING ASKED, HAS STATED THAT HIS BROTHER SH. VITHAL DAS PARWAL PURCHASED A HOUSE IN CHOWKRI GHAT DARWAJA AND POWER OF ATTORNEY WAS MADE IN HIS NAME (I.E IN THE NAME OF SH. HARI NARAYAN PARWAL). LATER ON THIS HOUSE WAS SOLD TO SH. ARVIND AGARWAL AND THIS PAPER RELATES TO SALE OF AFORESAID HOUSE. THE ASSESSEE WAS ASKED TO FURNISH THE DETAILS OF COMPUTATION OF TOTAL GAIN SHOWN BY HIM AT RS. 13,29 ,100/-. THE ASSESSEE HAS TAKEN THE PAYMENTS RECEIVED THROUGH CHEQUES ON DIFFERENT DATES AND FURTHER ADDED RS. 16,80,000/- AND ARRIVED AT THE NET VALUE OF SALE AT RS. 57,80,000/-. ON BEING ASKED BY THE A.O. AS TO WHY SHOULD NOT CASH RECEIPT OF RS . 33 LAKHS AS PER THE AFORESAID SEIZED PAPERS BE ADDED AS UNDISCLOSED INCOME APART FROM INVESTMENT IN 1 KG OF 3 GOLD AND THE CASH FOUND DURING THE COURSE OF SEARCH . IT WAS EXPLAINED THAT OUT OF TOTAL CASH OF RS. 33 LAKHS, RECEIVED ON SALE OF HOU SE, A SUM OF RS. 4 LAKH WAS LYING WITH ASSESSEE, A SUM OF RS. 12,80,000/- WAS USED FO R PURCHASE OF 1 KG OF GOLD BAR AND THIS AMOUNT OF RS. 16,80,000/- HAS BEEN INCLUDE D WHILE COMPUTING CAPITAL GAIN. BALANCE RS. 16,20,000/- WAS GIVEN TO PARTNERS HIP FIRM AND UTILIZED BY THE FIRM IN ADVANCING THE MONEY. RS. 16,20,000/- HAS BE EN INCLUDED BY THE FIRM IN HIS ADDITIONAL INCOME OF RS. 6 CRORE. THE A.O. DID NOT ACCEPT THE ARGUMENT AND COMPUTED THE CAPITAL GAIN CONSIDERING SALE CONSIDER ATION OF RS. 74 LAKHS AND EFFECTIVELY THE CLAIM OF ASSESSEE OF RS. 16,20,000/ - BEING GIVEN TO PARTNERSHIP FIRM AND TAXED THERE AND THEREBY EXCLUDING THE SAME AMOU NT FROM THE CAPITAL GAIN HERE IN THE CASE OF ASSESSEE, WAS REJECTED. 4. THE SUBMISSIONS MADE BEFORE LD. CIT (A) AND FIND INGS OF LD. CIT (A) HAVE BEEN RECORDED IN PARA 3.1 AND 3.2 AS UNDER :- 3.1. BEFORE ME, IT WAS SUBMITTED THAT THE APPELLANT IS PARTNER IN FIRM MAHESHWARI ASSOCIATES WHO IS CARRYING ON BUSIN ESS OF FINANCE BROKERAGE. THE APPELLANT SURRENDERED THE VARIOUS IN COMES DURING THE COURSE OF SEARCH. THE A.O. HAS ERRED IN REJECTING T HE EXPLANATION OF THE APPELLANT THAT OUT OF SALE CONSIDERATION OF RS. 33 LAKHS RECEIVED IN CASH, RS. 16,20,000/- HAS BEEN OFFERED TO TAX BY THE FIRM MIS MAHESHWARI ASSOCIATES. THE A.O. HAS REJECTED THE EX PLANATION OF THE APPELLANT THAT FIRM M/S MAHESHWARI ASSOCIATES HAS R IOT ACKNOWLEDGED IT. A.O. IS NOT CORRECT IN SAYING THAT THE FIRM HAS NOT CREDITED THE AMOUNT IN THE CAPITAL ACCOUNT OF THE A PPELLANT 4 MAINTAINED WITH THE FIRM, AS THESE TRANSACTIONS ARE OUTSIDE BOOKS OF ACCOUNTS AND ACCORDINGLY WILL NOT BE REFLECTED IN T HE BOOKS. 3.2. I HAVE CONSIDERED THE SUBMISSION OF A.R AND HA VE PERUSED THE `MATERIAL ON RECORD. THE UNDISPUTED FACT IS THAT ON SALE OF HOUSE SITUATED IN CHOWKRI GHAT DARWAJA, APART FROM RS. 41 LAKHS RECEIVED BY CHEQUE, (THE AMOUNT FOR WHICH THE SALE DEED HAS BEEN EXECUTED.), RS. 33 LAKHS HAS FURTHER BEEN RECEIVED BY CASH, AS REFLECTED ON PAGE 29 BACK OF EXHIBIT 23. THIS FACT HAS NOT BEEN CONTR OVERTED BY THE APPELLANT DURING THE APPEAL PROCEEDINGS: THE ONLY C LAIM OF THE APPELLANT IS THAT OUT OF THESE RS. 33 LAKHS AS RS. 16,20,000/- WAS GIVEN TO THE PARTNERSHIP FIRM M/S MAHESHWASRI ASSOC IATES AND SAME WAS INCLUDED IN THE ADDITIONAL INCOME OF RS. 6 CROR E DECLARED BY THE FIRM, THIS AMOUNT OF RS. 16.20 LAKHS MAY BE EXCLUDE D IN THE. CASE OF APPELLANT. IT IS UNDISPUTED THAT TOTAL SALE CONSIDE RATION OF THE PROPERTY IS RS. 74 LAKH (RS. 41 LAKHS CHEQUE AND RS . 33 LAKH CASH). IF AT ALL RS. 16.20 LAKHS HAS BEEN GIVEN BY THE APPELL ANT TO THE PARTNERSHIP FIRM, WHICH ALSO REMAINS UNVERIFIABLE I T IS THE APPLICATION OF INCOME RECEIVED AS SALE CONSIDERATION AND HENCE CANNOT BE ALLOWED TO BE DEDUCTED WHILE WORKING OUT THE CAPITA L GAIN. HENCE ARGUMENT OF THE APPELLANT ON THIS ISSUE IS REJECTE D AND A.OS ORDER OF COMPUTING SHORT TERM CAPITAL GAIN AT RS. 29,49,1 00/- IS UPHELD AND THEREBY ADDITION OF RS. 16,20,000/- IS UPHELD. OTHE R ARGUMENT OF APPELLANT BEING NO RELEVANT TO THE ISSUE UNDER CONS IDERATION IS ALSO REJECTED. 5. CONTENTION RAISED BEFORE LOWER AUTHORITIES WERE REITERATED HERE BEFORE THE TRIBUNAL. ATTENTION OF THE BENCH WAS DRAWN ON COPY OF WRITTEN SUBMISSIONS PLACED ON 5 RECORD. ATTENTION OF THE BENCH WAS ALSO DRAWN ON C OPY OF STATEMENT OF THE ASSESSEE RECORDED DURING THE COURSE OF SEARCH. COPIES OF VA RIOUS STATEMENTS ARE PLACED AT PAGES 1 TO 22 OF THE PAPER BOOK. 6. ON THE OTHER HAND, THE LD. D/R HAS PLACED STRONG RELIANCE ON THE ORDER OF LD. CIT (APPEALS). 7. AFTER CONSIDERING THE ORDERS OF AO, LD. CIT (A) AND WRITTEN SUBMISSIONS OF THE ASSESSEE INCLUDING OTHER MATERIAL ON RECORD, WE FIN D THAT ASSESSEE DESERVES TO SUCCEED ON THIS ISSUE. IT IS SEEN THAT ASSESSEE SOLD A HOUSE S ITUATED AT CHOWKRI GHAT DARWAJA. A SUM OF RS. 41 LACS WAS RECEIVED BY CHEQUE AND RS. 33 LA CS WAS RECEIVED BY CASH AS REFLECTED AT PAGE 29 BACK OF EXHIBIT 23. THIS FACT HAS NOT B EEN CONTROVERTEDS BY THE ASSESSEE. THE CLAIM OF ASSESSEE THAT OUT OF RS. 33 LAKHS, A SUM O F RS. 16.20 LACS WAS GIVEN TO THE PARTNERSHIP FIRM M/S. MAHESHWARI ASSOCIATES AND SAM E WAS INCLUDED IN THE ADDITIONAL INCOME OF RS. 6 CRORE DECLARED BY THE ASSESSEE FIRM . THE CONTENTION OF THE ASSESSEE THAT THIS AMOUNT OF RS. 16.20 LACS SHOULD BE EXCLUDED IN CASE OF ASSESSEE. IT IS FURTHER SEEN THAT IN REPLY TO QUESTION NO. 11, IT WAS STATED THA T A SUM OF RS. 6 CRORES HAS BEEN SHOWN AS UNDISCLOSED IN THE HANDS OF THE FIRM AND IF ANY OTH ER UNDISCLOSED INCOME IS FOUND EITHER IN THE HANDS OF ANY PARTNER OR IN THE HANDS OF FAMI LY MEMBER THAT SHOULD BE TREATED AS DISCLOSED IN THE HANDS OF THE FIRM. THERE IS NO DI SPUTE THAT ASSESSEE HAD ADMITTED A SUM OF RS. 74 LACS AS SALE CONSIDERATION RECEIVED. RS. 41 LACS WAS RECEIVED BY CHEQUE AND RS. 16.80 LACS HAS BEEN ADMITTED BY HIM IN HIS HAND OUT OF WHICH 1 KG GOLD BAR FOR RS. 12,80,000/- HAS BEEN PURCHASED AND RS. 4 LACS CASH WAS FOUND. REGARDING REMAINING AMOUNT OF RS. 16.20 LACS THOUGH ASSESSEE HAS COMPUT ED CAPITAL GAIN ON THIS AMOUNT ALSO BUT HAS REDUCED THIS AMOUNT FROM THE TAXABLE INCOME FOR THE REASON THAT THE SAME HAS 6 BEEN OFFERED FOR TAXATION IN THE HANDS OF THE FIRM AS IN THE HANDS OF THE FIRM A SUM OF RS. 6 CRORE HAS BEEN SURRENDERED. THOUGH THIS AMOUNT I S TAXABLE IN THE HANDS OF THE ASSESSEE AS SALE CONSIDERATION HAS BEEN RECEIVED ON ACCOUNT OF SALE OF HIS PROPERTY AND LD. CIT (A) IS RIGHT IN CONFIRMING THE ADDITION IN THE HANDS OF THE ASSESSEE. HOWEVER, HE HAS NOT GIVEN SET OFF OF THE SAME AS ASSESSEE COULD NOT PRO VE ANY NEXUS THAT INCOME OF RS. 16.20 LACS HAS BEEN DISCLOSED IN THE HANDS OF THE FIRM. WE CONFIRM THE FINDINGS OF LD. CIT (A) ON THE ASPECT THAT SAME IS ASSESSABLE IN THE HANDS OF THE ASSESSEE. HOWEVER, SINCE THIS AMOUNT HAS ALREADY BEEN OFFERED FOR TAXATION IN THE HANDS OF THE FIRM, THEREFORE, IF THIS ADDITION IS CONFIRMED HERE THAT WILL TANTAMOUNT TO DOUBLE TAXATION ON THE SAME INCOME. THERE IS NO QUESTION OF PROVING ANY NEXUS AS ASSESS EE BEING PARTNER OF THE FIRM HAS SURRENDERED A SUM OF RS. 6 CRORES IN THE HANDS OF T HE FIRM ON ACCOUNT OF VARIOUS LOOSE PAPERS FOUND WHICH INDICATES INCOME FROM INTEREST A ND MONEY ADVANCED TO VARIOUS PERSONS. IT HAS BEEN CATEGORICALLY MENTIONED IN TH E STATEMENT RECORDED DURING THE COURSE OF SEARCH THAT IF ANY OVER AND ABOVE AMOUNT FOUND U NDISCLOSED THAT MAY BE TREATED AS DISCLOSED IN THE AMOUNT OF RS. 6 CRORES. IT IS ALS O A MATTER OF FACT THAT NO CASH OR ANY OTHER ASSET OVER AND ABOVE DECLARED BY THE ASSESSEE IN HIS STATEMENT OF AFFAIR WAS FOUND EXCEPT THECASH OF RS. 4,52,250/-. THE SEARCH WAS M ADE AT THE PREMISES OF THE ASSESSEE AS WELL AS BUSINESS PREMISES OF THE FIRM AND AT THE PR EMISES OF BROTHER OF THE ASSESSEE. NO INCRIMINATING DOCUMENTS SHOWING INVESTMENT OF RS. 1 6.20 LACS OR ANY OTHER INVESTMENT WAS FOUND. THEREFORE, IT HAS TO BE TREATED THAT WHA TEVER THE UNDISCLOSED INCOME WAS WITH THE ASSESSEE THAT HAS BEEN DISCLOSED IN THE HANDS O F THE FIRM. IN VIEW OF THESE FACTS AND CIRCUMSTANCES, WE HOLD THAT IF THE ADDITION OF RS. 16.20 LACS IS CONFIRMED HERE THAT WILL 7 TANTAMOUNT TO DOUBLE TAXATION. ACCORDINGLY, FOR TH IS REASON, THE ADDITION IS DELETED HERE IN THE HANDS OF THE ASSESSEE. 8. THE REMAINING GROUND IN APPEAL OF ASSESSEE IS AG AINST SUSTAINING THE ADDITION OF RS. 52,250/- ON ACCOUNT OF CASH FOUND AT THE TIME O F SEARCH AND GROUND NOS. 5, 6 & 7 IN THE APPEAL OF THE DEPARTMENT IS AGAINST DELETING TH E ADDITION OF RS. 4 LACS OUT OF TOTAL ADDITION OF RS. 4,52,250/- MADE BY AO ON ACCOUNT OF UNEXPLAINED CASH FOUND DURING THE COURSE OF SEARCH UNDER SECTION 132 OF THE ACT. THE SE GROUNDS ARE CO-RELATED, THEREFORE, THEY ARE BEING DISPOSED OFF TOGETHER. 9. GROUND NO. 1 TO 4 IN APPEAL OF THE DEPARTMENT RE LATE TO DELETING ADDITION OF RS. 12,80,000/- MADE BY AO ON ACCOUNT OF UNEXPLAINED IN VESTMENT IN 1 KG GOLD BAR. 10. FACTS IN THIS REGARD ARE THAT 1 KG GOLD BAR WAS FOUND WHICH WAS SURRENDERED DURING THE COURSE OF SEARCH. OUT OF THE CASH OF RS. 7,93,100/- FOUND DURING THE COURSE OF SEARCH, ASSESSEE STATED THAT RS. 2,90,850/-RELATE T O INTEREST RECEIVED ON ADVANCES MADE BY M/S MAHESHWARI ASSOCIATES AND RS. 50,000/- IS THE P ERSONAL SAVING OF HIS WIFE. REGARDING REMAINING AMOUNT, IT WAS STATED THAT .WHA TEVER AMOUNT HE IS NOT ABLE TO GET VERIFIED, WILL BE SURRENDERED BY HIM. BEFORE THE A. O., IT WAS EXPLAINED THAT INVESTMENT IN GOLD BAR AS WELL AS CASH FOUND DURING THE COURSE OF SEARCH, WAS OUT OF THE UNACCOUNTED SALE PROCEEDS OF HOUSE RECEIVED IN CASH OF RS. 33 L AKHS. THE A.O. DID NOT ACCEPT THE EXPLANATION OF THE ASSESSEE AND ADDED RS. 12,80,000 /- AS UNEXPLAINED INVESTMENT IN GOLD BAR AND RS. 4,52,250/- AS UNEXPLAINED CASH FOUND DU RING THE COURSE OF SEARCH. 11. IT WAS SUBMITTED BEFORE LD. CIT (A) THAT AVAILA BILITY OF THE CASH OUT OF THE UNACCOUNTED SALE PROCEEDS OF THE HOUSE IS NOT IN DI SPUTE. IN THE COURSE OF SEARCH WHAT WAS ACCEPTED WAS THAT INVESTMENT IN 1 KG OF GOLD BAR IS OUT OF UNDISCLOSED INCOME. THE 8 UNDISCLOSED INCOME WAS NOT PINPOINTED. DURING THE S CRUTINY OF DOCUMENT, THIS UNDISCLOSED INCOME FROM SALE OF HOUSE WAS FOUND, WH ICH HAS BEEN OFFERED FOR TAXATION AND THIS INVESTMENT IN 1 KG OF GOLD BAR IS OUT OF T HAT UNDISCLOSED INCOME. THE REQUIREMENT OF THE A.O. ABOUT ANY EVIDENCE/PURCHASE BILL OF THE GOLD BAR IS UNWARRANTED. THE GOLD BAR WAS FOUND DURING THE COURSE OF SEARCH AND IN ABSENCE OF ANY OTHER EVIDENCE REGARDING DATE OF PURCHASE IT IS LEGALLY PRESUMED T O HAVE BEEN ACQUIRED IN THE CURRENT YEAR. THE RECEIPT OF CASH ON SALE OF HOUSE IS IN TH E STARTING OF THE FINANCIAL YEAR AS PER DATE AVAILABLE ON PAGE 29 BACK (10.4.07). ACCORDING LY, THERE CAN NOT BE ANY DOUBT REGARDING INVESTMENT IN GOLD BAR BEING MADE OUT OF SALE PROCEEDS OF THE HOUSE. SIMILARLY CASH TO THE EXTENT OF RS. 4 LAKHS WAS AVAILABLE OUT OF SALE PROCEEDS AND SMALL AMOUNT OF RS. 52,250/- IS AVAILABLE FROM PERUSAL OF THE BALAN CE SHEET WHICH WAS FILED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDING S, WHICH WAS NOT FOUND WRONG BY THE A.O. 12. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD, THE LD. CIT (A) GAVE FOLLOWING FINDING AT PARA 4.3 OF HIS ORDER :- 4.3 1 HAVE CONSIDERED THE SUBMISSION OF A.R AND HAVE PERUSED THE MATERIAL ON RECORD. AS REGARDS CASH FOUND DURING TH E COURSE OF SEARCH IS CONCERNED, THE APPELLANT HAS STATED THAT RS. 2,90,850/- RELATES TO INTEREST OF THE FIRM. M/S MAHESHWARI ASS OCIATES AND RS. 50,000/- IS SAVING OF HIS WIFE. REGARDING BALANCE A MOUNT, IT WAS SUBMITTED THAT IF HE NOT ABLE TO GET THEM VERIFIED, HE WILL SURRENDER TO THE EXTENT OF UNVERIFIABLE AMOUNT. NOW AFTER SCR UTINY OF THE SEIZED DOCUMENT, THE APPELLANT NOTICED UNDISCLOSED RECEIPT OF RS. 33 LAKHS, WHICH HAS BEEN OFFERED FOR TAXATION AND T HEREBY CLAIM OF APPELLANT THAT OUT OF THIS RS. 33 LAKHS. RS. 4 LAKH S WERE LYING WITH 9 THE APPELLANT AND RS. 12,80,000/- WAS INVESTED IN P URCHASE OF GOLD BAR FOUND DURING THE COURSE OF SEARCH CANNOT BE DIS BELIEVED. THE APPELLANT HAS FURNISHED THE EXPLANATION OF THE BALA NCE CASH FOUND DURING THE COURSE OF SEARCH TO THE EXTENT OF RS. 4 LAKHS. REGARDING ADMISSION OF THE APPEAL THAT INVESTMENT IN GOLD BAR WAS OUT OF UNDISCLOSED INCOME CANNOT BE EXTENDED TO SUCH AN EX TENT THAT INVESTMENT IN GOLD BAR FOUND DURING THE COURSE OF S EARCH IS SEPARATELY TAXED INSPITE OF APPELLANT OFFERING THE UNDISCLOSED INCOME ON SALE OF HOUSE TO TAX AND ALSO STATING THA T THE INVESTMENT IN GOLD BAR FOUND IS OUT OF UNDISCLOSED RECEIPTS ON SALE OF HOUSE, PARTICULARLY WHEN THERE IS NO EVIDENCE THAT THE GOL D BAR WAS PURCHASED PRIOR TO THE DATE OF RECEIPT OF CASH ON S ALE OF HOUSE (AND IN SUCH SITUATION, THE PRESUMPTION IS THAT GOLD BAR HAS BEEN ACQUIRED IN THE CURRENT FINANCIAL YEAR). ACCORDINGL Y ADDITION OF RS. 12,80,000/- MADE ON ACCOUNT OF INVESTMENT IN GOLD B AR IS DELETED. FURTHER ADDITION OF RS. 4 LAKHS IS DELETED OUT OF U NEXPLAINED CASH FOUR J RS. 4,52,250/- AND RS. 52,250/- IS SUSTAINED, AS SAME WAS CLAIMED TO BE CASH BALANCE AS PER BOOKS! PERSONAL S AVINGS, WITHOUT SPECIFYING THE AMOUNT UNDER EACH HEAD AND WITHOUT F URNISHING ANY SUPPORTING EVIDENCE. 13. THE CONTENTIONS RAISED BEFORE LD. CIT (A) WERE REITERATED HERE BEFORE THE TRIBUNAL BY THE LD. COUNSEL OF THE ASSESSEE. ATTENTION OF T HE BENCH WAS DRAWN ON COPY OF WRITTEN SUBMISSIONS PLACED ON RECORD. 14. ON THE OTHER HAND, LD. D/R PLACED RELIANCE ON T HE ORDER OF AO AND FURTHER RELIANCE WAS PLACED ON THE ORDER OF LD. CIT (A) TO WHICH THE ADDITIONS HAVE BEEN CONFIRMED BY LD. CIT (A). 10 15. AFTER CONSIDERING THE ORDERS OF THE AO, LD. CIT (A) AND THE WRITTEN SUBMISSIONS FILED BEFORE LD. CIT (A), WE FIND THAT ASSESSEE DE SERVES TO SUCCEED IN THE GROUND RAISED. HOWEVER, THERE IS NO SUBSTANCE IN THE APPEAL OF THE DEPARTMENT. THE DETAILED FACTS NOTED IN THE WRITTEN SUBMISSIONS FILED ON BEHALF OF THE A SSESSEE THOUGH AT THE COST OF REPETITION ARE AS UNDER :- THE ASSESSEE IS A PARTNER IN THE FIRM M/S MAHESHWAR I ASSOCIATES, PARTANION KA RASTA, JAIPUR CARRYING ON BUSINESS OF FINANCE BROKERAGE AND DERIVES INCOME FROM INTEREST, REMUNERATION AND SHARE OF INCOME FROM SAID FIRM AND ALSO HAVE RE NTAL INCOME & INTEREST INCOME. A SEARCH TOOK PLACE AT BUSINESS PR EMISES AND RESIDENTIAL HOUSE OF ASSESSEE ON 14-3-08. IN COURSE OF SEARCH LOOSE PAPERS, CASH AND A 1 KG GOLD BAR ETC. WERE FOUND. T HE ASSESSEE IN COURSE OF SEARCH SURRENDERED FOLLOWING INCOME ON AC COUNT OF (I) RS. 1,17,47,500/- UNDISCLOSED CASH DEBTORS IN FINANCE BUSINESS ESTIMATED ON THE BASIS OF BUNDLE OF NOTES (CASH) FOUND IN COURSE OF SEARCH CONSIDERING AS INTEREST RECEIPT FROM UNDISCLOSED DEBTORS BY AUTHORIZED OFFICERS OF SEARCH. THIS SURRENDERED INCOME WAS CONSIDERED DECLARED BY FIRM AND ASSESSED IN THE HANDS OF FIRM M/S MAHESHWARI ASSOCIATES, JAIPUR IN A.Y. 2008-09. (II) RS. 2,90,850/- INTEREST RECEIVED FROM DEBTORS BY ASSESSEE. (III) RS. 12,80,000/- ON ACCOUNT OF UNDISCLOSED 1 KG GOLD BAR. (IV) NO AMOUNT SPECIFIED RS. 7,93,100/- CASH FOUND IN COURSE OF SEARCH OUT OF WHICH RS. 2,90,850/- WAS THAT OF INTEREST RECEIVED AS GIVEN IN (II) ABOVE AND IT WAS STATED THAT RS. 50,000/- IS BELONGING TO WIFE OF ASSESSEE AND FOR THE BALANCE IT WAS STATED BY HIM THAT AS THE PERSONAL BOOKS OF ACCOUNTS ARE NOT READY AND SO AFTER ASCERTAINING CASH BALANCE AS 11 PER PERSONAL BOOKS OF ACCOUNT IF ANY EXCESS CASH IS FOUND THE SAME WILL BE SURRENDERED. IN COURSE OF SEARCH A LOOSE PAPER PAGE 2829 OF EX 23 OF ANN. A WAS FOUND AND SEIZED (PHOTO COPY REPRODUCED ON PAGE 2 OF ASSESSMENT ORDER). THE ASSESSEE AFTER SEARCH COM PLETION OF EXAMINED ALL SEIZED PAPERS AND NOTICED THE SAID PAP ER WHICH PERTAINS TO SALE OF A PROPERTY BY ASSESSEE AT CHOWKRI GHAT D ARWAJA PURCHASED BY HIM IN F.Y. 200506 FOR RS. 44,50,900/- AND WAS SOLD IN F.Y. 200708 BY RECEIVING A SUM OF RS. 33,00,000/- IN CA SH AND 41,00,000/- BY CHEQUES AS NOTED ON THE SAID SEIZED PAPER. AS THE SAID LOOSE PAPER WAS NOT NOTICED IN COURSE OF SEARC H NO SURRENDER WAS MADE IN STATEMENT U/S 132(4) IN THIS RESPECT. T HE ASSESSEE WHILE FILING RETURN U/S 153A ACCEPTED THE SAID POSITION A PPEARING ON SEIZED PAPERS AND DECLARED SHORT TERM CAPITAL GAIN FROM SA LES OF SAID PROPERTY TAKING SALE CONSIDERATION AS RS. 74,00,000 /- BUT CLAIMED THAT OUT OF CASH OF RS. 33,00,000/- RECEIVED ON SAL E OF PROPERTY HE GAVE A SUM OF RS. 16,20,000/- TO FIRM M/S MAHESHWAR I ASSOCIATES WHICH WAS ADVANCED TO UNDISCLOSED DEBTORS. THE FIRM M/S MAHESHWARI ASSOCIATES SURRENDERED IN COURSE OF SEAR CH AN AMOUNT OF ABOUT RS. 6 (SIX) CRORES AS UNDISCLOSED DEBTORS TO WHOM CASH WAS ADVANCED WHICH IT INCLUDED IN ITS RETURN OF INC OME U/S 153A AND ASSESSED TO TAX IN ITS HANDS AND SO THE SAID AMOUNT OF RS. 16,20,000/- IS NOT TAXABLE IN HIS HANDS. THE ASSESS EE ACCORDINGLY CALCULATED THE SHORT TERM CAPITAL GAIN IN HIS HANDS AS UNDER: - SALE VALUE OF PROPERTY 74,00,000 COST 44,50,900 29,49,100 LESS: ASSESSED IN THE HANDS OF FIRM 16,20,000 SHORT TERM CAPITAL GAIN ASSESSABLE IN HIS HANDS DEC LARED IN THE RETURN 13,29,100 12 THE ASSESSEE FURTHER IN ASSESSMENT PROCEEDINGS CLAI MED THAT OUT OF CASH OF RS. 33,00,000/- WHICH HE RECEIVED DU RING THE YEAR AFTER GIVING RS. 16,20,000/- TO FIRM M/S MAHESHWARI ASSOCIATES HE WAS LEFT WITH CASH AMOUNTING TO RS. 16,80,000/- OUT OF WHICH HE PURCHASED 1 KG GOLD BAR OF RS. 12,80,000/- AND BALA NCE CASH OF RS. 4,00,000/- WAS FOUND WITH HIM AT RESIDENCE. THE CAS H FOUND IN COURSE OF SEARCH WAS RECONCILED AS UNDER:- CASH FOUND IN COURSE OF SEARCH RS. 7,93,100 LESS: SURRENDERED BY ASSESSEE IN RETURN OF INCOME BEING AMOUNT OF INTEREST RS. 2,90,850 AMOUNT BELONGING TO WIFE RS. 50,000 CASH AS ABOVE RS. 4,00,000 RS. 7,40,850 BALANCE RS. 52,250 THE BALANCE OF RS. 52,250/- WAS EXPLAINED BY ASSESS EE AS CASH BALANCE AS PER BOOKS OF ACCOUNTS/PERSONAL SAVI NGS. THE ASSESSEE THUS EXPLAINED THE 1 KG GOLD BAR AND CASH FOUND IN COURSE OF SEARCH. 16. THE AO DID NOT ACCEPT THE EXPLANATION OF THE AS SESSEE AND MADE ADDITION OF RS. 16,20,000/- IN SHORT TERM CAPITAL GAIN OF RS. 12,80 ,000/- AS UNDISCLOSED INVESTMENT IN GOLD BAR AND RS. 4,52,250/- AS UNEXPLAINED CASH. 17. THE ISSUE IN RESPECT OF ADDITION MADE AT RS. 16 ,20,000/- WHICH WAS SUSTAINED BY LD. CIT (A), WE HAVE ALREADY DISPOSED OFF WHILE DIS POSING GROUND NO. 1 IN THE APPEAL OF THE ASSESSEE. 13 18. REGARDING ADDITION OF RS. 12,80,000/- DELETED B Y LD. CIT (A) AND RS. 4 LACS OR ODD DELETED BY LD. CIT (A) ON ACCOUNT OF UNEXPLAINED CA SH FOUND, THE FINDINGS OF LD. CIT (A), IN OUR CONSIDERED VIEW, DOES NOT REQUIRE ANY INTERF ERENCE AS LD. CIT (A) HAS DISCUSSED THE ISSUE THREAD BEAR AND THEN ONLY CAME TO CONCLUSION THAT ASSESSEE HAS ALREADY SHOWN THE PROFIT ON ACCOUNT OF SALE OF HOUSE AND OUT OF THE S ALE OF HOUSE, A SUM OF RS. 33 LACS WAS RECEIVED IN CASH. RS. 16,20,000/- WAS GIVEN TO PART NERSHIP FIRM I.E. M/S. MAHESHWARI ASSOCIATES AND OUT OF REMAINING AMOUNT OF RS. 16,80 ,000/- WHICH HAS BEEN INCLUDED IN THE CAPITAL GAIN, THE ASSESSEE HAS PURCHASED 1 KG G OLD BAR FOR RS. 12,80,000/- AND A SUM OF RS. 4,00,000/- WAS REMAINED IN CASH IN HAND. EX PLANATION OF TOTAL AMOUNT OF RS. 16,80,000/- HAS ALREADY BEEN FOUND SATISFACTORY BY LD. CIT (A) AS THE SAME WAS OUT OF SALE PROCEEDS OF HOUSE. THEREFORE, THERE IS NO INF IRMITY IN THE FINDING OF LD. CIT (A) TO THIS EXTENT. ACCORDINGLY, WE CONFIRM THE FINDINGS OF LD. CIT (A). 19. REGARDING AMOUNT OF RS. 52,250/-, IT IS A PETTY AMOUNT AND IT MAY BE A PERSONAL SAVINGS OF LAST SO MANY YEARS OF FAMILY, WHICH MAY BE OUT OF THE WITHDRAWAL FROM FOR HOUSEHOLD EXPENSES. THEREFORE, WE FEEL THAT THIS A MOUNT SHOULD HAVE ALSO BEEN TREATED AS EXPLAINED AND ACCORDINGLY WE DELETE THIS ADDITION O F RS. 52,250/-. 20. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D AND APPEAL OF THE DEPARTMENT IS DISMISSED. 21. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 21 .10.2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR, D/- 14 COPY FORWARDED TO :- SHRI BITHAL DAS PARWAL, JAIPUR. THE DCIT, CENTRAL CIRCLE-1, JAIPUR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 138(2)/JP/2011) BY ORDER, AR ITAT JAIPUR.