N.K.Mohnot, CHENNAI V. ACIT, CHENNAI

ITA 1385/CHNY/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7966 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 18-10-2016
• Assessment Year: 1984-1985
• Appeal Filed On: 19-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUPRIYO PAL
• Assessee Lawyers: D ANAND
• Keywords: Unexplained investment
• Section: 69C; 131; 68; 69

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . . . , . . ! '# , $ %& BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER ITA NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 ASSESSMENT YEARS: 1977-78, 1983-84, 1984-85, 1991-92 & 1992-93 SHRI N.K.MOHNOT, NO.38, COLLEGE ROAD, NUNGAMBAKKAM, CHENNAI 600 006. PAN : AACPN 2020 K V. THE ASST. COMMISSIONER OF INCOME TAX, NCC-3, CHENNAI. ( '( /APPELLANT) ( )*'( /RESPONDENT) '( + , /APPELLANT BY : SHRI D.ANAND, ADVOCATE )*'(+, /RESPONDENT BY : SHRI SUPRIYO PAL, JCIT ! +-$ /DATE OF HEARING : 20.10.2016 ./0 +-$ /DATE OF PRONOUNCEMENT : 25.11.2016 /O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: ALL THE APPEALS OF THE ASSESSEE ARE DIRECTED AGAI NST THE RESPECTIVE ORDER OF CIT(A) AND PERTAINS TO ASSESSMENT YEARS 19 77-78, 1983-84, 2 I.T.A. NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 1984-85, 1991-92 & 1992-93. THEREFORE, WE HEARD ALL THE APPEALS TOGETHER AND DISPOSING OFF THE SAME BY THIS COMMON ORDER. 2. LET US FIRST TAKE THE ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 1977-78 IN ITA NO.1383/MDS/2016. SHRI D.ANAND, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE WAS A PART NER IN M/S.EMKAY CREDIT CORPORATION. THE ASSESSEE MADE INVESTMENT TO THE EXTENT OF RS.1,67,000/- DURING THE YEAR UNDER CONSIDERATION. THE INVESTMENT MADE BY THE ASSESSEE WAS CONFIRMED BY THE RESPECTIVE PAR TIES. IN FACT, THE ASSESSEE INVESTED A SUM OF RS.35,000/- IN M/S.EMKAY CREDIT CORPORATION WHICH WAS NOT DISCLOSED IN THE RETURN OF INCOME. TH E INTEREST INCOME FROM THE ADVANCE OF RS.1,67,000/- AND SHARE INCOME FROM THE PARTNERSHIP ALSO WAS NOT EXPLAINED BEFORE THE ASSES SING OFFICER. THEREFORE, THE ASSESSING OFFICER MADE AN ADDITION O F RS.1,67,000/- AS UNEXPLAINED INVESTMENT AND AFTER CONSIDERING THE CA PITAL BALANCE AVAILABLE, THE BALANCE AMOUNT OF RS.1,27,000/- WAS TAKEN AS UN- EXPLAINED INCOME BY THE ASSESSING OFFICER. REFERRIN G TO THE ORDER OF CIT(A), THE LEARNED COUNSEL FOR THE ASSESSEE SUBMIT TED THAT THE CASH FLOW STATEMENT WAS FILED BEFORE THE ASSESSING OFFIC ER AND CIT(A). THE ASSESSEE HAS DISCLOSED CREDIT FROM SHRI ANJAY PRAKA SH TO THE EXTENT OF RS.20,000/- AND SMT.MEENAKUMARI TO THE EXTENT OF RS .40,000/-. THE 3 I.T.A. NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 ASSESSEE HAS ALSO DISCLOSED CREDIT FROM SHRI K.PARA SMAL JAIN TO THE EXTENT OF RS.30,000/- AND M/S.SANJAY COMMERCIAL CORPORATIO N TO THE EXTENT OF RS.22,000/-. THIS STATEMENT OF ACCOUNT FOR THE ABOV E SAID PURPOSE WERE ALSO FILED BEFORE THE ASSESSING OFFICER AND CIT(A). THE ASSESSEE HAS DISCLOSED THE SOURCE FOR MAKING INVESTMENT TO THE E XTENT OF RS.1,27,000/-. SINCE THE ASSESSING OFFICER HIMSELF ADMITTED THE CAPITAL BALANCE OF RS.40,000/-, THE CIT(A) IS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS.1,27,000/-. 3. ON THE CONTRARY, SHRI SUPRIYO PAL, THE LEARNED R EPRESENTATIVE FOR THE DEPARTMENT SUBMITTED THAT IN THE EARLIER ROUND OF LITIGATION, THIS TRIBUNAL REMANDED BACK THE MATTER TO THE FILE OF AO WITH A DIRECTION TO REDO THE ASSESSMENT. ACCORDINGLY, THE ASSESSING OFF ICER RE-EXAMINED THE MATTER AFRESH AND MADE ADDITION TO RS.1,27,000/-. A CCORDING TO THE LEARNED REPRESENTATIVE, THE ASSESSING OFFICER WORKE D OUT THE UNDISCLOSED INVESTMENT OF RS.1,67,000/- AND REDUCING THE CAPITA L BALANCE OF RS.40,000/- HE MADE A NET ADDITION OF RS.1,27,000/- . THE ASSESSEE COULD NOT PRODUCE THE SO CALLED CREDITORS BEFORE THE ASSE SSING OFFICER FOR EXAMINATION. THEREFORE, THE ASSESSING OFFICER FOUND THAT THE ASSESSEE MADE UNEXPLAINED INVESTMENT TO THE EXTENT OF RS.1,2 7,000/-. IN THE 4 I.T.A. NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 ABSENCE OF ANY MATERIAL, THE CIT(A) HAS RIGHTLY CON FIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE ASSESSING OFFICER MADE ADDITION ON THE GROUND THAT THE ASSESSEE COULD NOT PRODUCE THE CREDITORS FOR EXAMINATION. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT WHEN THE ASSESSEE FURNISHED THE NAME AND OTHER PART ICULARS OF THE CREDITORS, MERELY BECAUSE THE ASSESSEE COULD NOT PR ODUCE THE CREDITORS, THAT CANNOT BE A REASON FOR MAKING ADDITION. THE IN COME TAX ACT MORE PARTICULARLY SECTION 131 OF THE ACT GIVES AMPLE POW ER TO THE ASSESSING OFFICER TO SUMMON ANY PERSON FOR EXAMINATION. IN TH IS CASE, THE ASSESSING OFFICER HAS NOT TAKEN ANY PAIN TO SUMMON THE CREDITORS FOR EXAMINATION. UNDER NORMAL CIRCUMSTANCES, THIS TRIBU NAL WOULD HAVE REMANDED BACK THE MATTER TO THE FILE OF THE AO WITH A DIRECTION TO SUMMON THE RESPECTIVE CREDITORS FOR EXAMINATION. IN THIS CASE, WE ARE NOT DOING SO, BECAUSE, THE ASSESSMENT YEAR UNDER CONSID ERATION IS 1977-78. AFTER 38 YEARS EVEN IF THE MATTER IS REMANDED BACK TO THE FILE OF THE A.O. FOR EXAMINATION OF THE RESPECTIVE CREDITORS MAY NOT SERVE ANY PURPOSE. MOREOVER, THE ADDITION MADE BY THE ASSESSING OFFICE R IS ONLY RS.1,27,000/-. AFTER TAKING INTO CONSIDERATION, THE LAPSE OF TIME AND ALSO THE FACT THAT THIS IS THE SECOND ROUND OF LITIGATIO N, THIS TRIBUNAL IS OF THE 5 I.T.A. NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 CONSIDERED OPINION THAT THE ADDITION MADE BY THE AS SESSING OFFICER TO THE EXTENT OF RS.1,27,000/- CANNOT BE SUSTAINED. ACCORD INGLY, THE ORDERS OF BOTH THE AUTHORITIES BELOW ARE SET ASIDE AND ADDITI ON OF RS.1,27,000/- IS DELETED. 5. THE NEXT GROUND OF APPEAL IS WITH REGARD TO ADDI TION OF RS.9,441/- AND RS.2,868/- TOWARDS INTEREST INCOME AND UNDISCLO SED SHARE INCOME OF THE ASSESSEE FROM THE PARTNERSHIP FIRM M/S.EMKAY CREDIT CORPORATION. WE HEARD SHRI D.ANAND, THE LEARNED COUNSEL FOR THE ASSESSEE AND SHRI SUPRIYO PAL, THE LEARNED DEPARTMENT REPRESENTATIVE. THE ADDITION OF RS.9,441/- WAS MADE ON ACCOUNT OF INTEREST SAID TO BE RECEIVED BY THE ASSESSEE FROM THE ADVANCES AND ANOTHER ADDITION OF RS.2,868/- WHICH IS MADE TOWARDS UNDISCLOSED SHARE OF INCOME FROM M/S.E MKAY CREDIT CORPORATION. THE ADDITION WAS MADE ON THE GROUND TH AT THE ASSESSEE FAILED TO PROVE THE GENUINENESS OF THE INVESTMENT M ADE. IN THE EARLIER PART OF THIS ORDER, THIS TRIBUNAL DELETED THE ADDIT ION OF RS.1,27,000/- ON THE GROUND THAT THE ASSESSING OFFICER HAS NOT TAKEN ANY STEPS TO EXAMINE THOSE CREDITORS. IT IS ALSO A FACT THAT THE INVESTM ENT MADE BY THE ASSESSEE WAS ADMITTED BY THE RESPECTIVE PERSONS. IN THOSE CIRCUMSTANCES, IT CANNOT BE SAID THAT THE GENUINENE SS OF THE INVESTMENT MADE BY THE ASSESSEE WAS NOT PROVED. THEREFORE, THE ADDITION OF 6 I.T.A. NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 RS.9,441/- TOWARDS INTEREST INCOME ON THE ADVANCE M ADE BY THE ASSESSEE IS NOT SUSTAINABLE. MOREOVER, THE SHARE IN COME FROM M/S.EMKAY CREDIT CORPORATION WAS MADE BY THE ASSESSING OFFICE R WITHOUT ANY INQUIRY AND NO REASON WAS ADDUCED IN THE ASSESSMENT ORDER. THE ASSESSING OFFICER HAS SIMPLY OBSERVED THAT AS PER THE ORIGINA L ASSESSMENT ORDER AN ADDITION OF RS.2,868/- IS MADE. IT IS AN ADMITTED F ACT THAT THE ORIGINAL ORDER WAS SET ASIDE BY THIS TRIBUNAL AND THE ASSESS ING OFFICER WAS DIRECTED TO REDO THE ASSESSMENT. THE ASSESSING OFFI CER WITHOUT REDOING THE ASSESSMENT AS PER THE DIRECTION OF THE TRIBUNAL HAS SIMPLY RESTORED THE ADDITION MADE IN THE EARLIER ASSESSMENT ORDER. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT SUCH AN ADDITION CANNOT BE MADE ON THE BASIS OF EARLIER ASSESSMENT ORDER. SINCE THE ASSESSMENT WAS REFRAMED BY THE ASSESSING OFFICER BY THE DIRECTION OF THIS TRIBUNAL , WE ARE UNABLE TO UPHOLD THE ADDITION OF RS.9,441/- AND RS.2,868/- RE SPECTIVELY. ACCORDINGLY, THE ORDERS OF BOTH THE AUTHORITIES BEL OW ARE SET ASIDE AND THE ADDITION OF RS.9,441/- AND RS.2,868/- ARE DELET ED. 6. IN THE RESULT, ASSESSEES APPEAL FOR THE ASSESSM ENT YEAR 1977-78 IN ITA NO.1383/MDS/2016 IS ALLOWED. 7 I.T.A. NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 7. NOW COMING TO THE ASSESSMENT YEAR 1983-84 IN ITA NO.1384/MDS/2016, SHRI D.ANAND, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE FIRST ISSUE ARISES FOR CONSIDERA TION IS ADDITION OF RS.48,11,610/-. ACCORDING TO THE LEARNED COUNSEL, T HE ASSESSING OFFICER MADE AN ADDITION ON THE BASIS OF THE SO CALLED CRED IT FOUND IN THE BANK ACCOUNT OF THIRD PARTIES. THE ASSESSING OFFICER ALS O MADE AN ADDITION OF RS.15,580/-. THIS ADDITION WAS MADE ON THE BASIS OF THE CREDIT FOUND IN THE BANK ACCOUNTS OF THE BANK OF RAJASTHAN LTD. AND THE VYSYA BANK LTD. A CREDIT ALSO WAS FOUND IN THE BANK ACCOUNT OF INDIAN OVERSEAS BANK. ACCORDING TO THE LEARNED COUNSEL, THE ASSESSE E HAS FURNISHED ALL THE DETAILS FOR SOURCE OF MAKING DEPOSIT IN THE BAN K ACCOUNT. THE LEARNED COUNSEL SUBMITTED THAT THIS TRIBUNAL REMANDED BACK THE MATTER TO THE FILE OF THE AO TO CONSIDER THE MATERIAL FILED BY THE ASS ESSEE AND THEREAFTER DECIDED THE MATTER AFRESH. INSPITE OF THE DIRECTION OF THE TRIBUNAL, THE ASSESSING OFFICER CONFIRMED THE ADDITION MADE IN TH E ORIGINAL ASSESSMENT WITHOUT ANY REASONS. THE ASSESSING OFFICER FAILED T O EXAMINE THE MATERIAL FILED BY THE ASSESSEE AS DIRECTED BY THIS TRIBUNAL. THE LEARNED COUNSEL FURTHER SUBMITTED THAT THE CREDIT FOUND IN THE BANK ACCOUNT ARE FROM PROFESSIONAL FEES. ACCORDING TO THE LEARNED COUNSEL , THE ASSESSEE IS A CHARTERED ACCOUNTANT AND THE FEES RECEIVED FROM THE RESPECTIVE CLIENT WAS DEPOSITED IN ALL THE BANKS. MERELY BECAUSE, THE ASSESSEE COULD NOT 8 I.T.A. NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 PRODUCE THE BOOKS OF ACCOUNTS, IT CANNOT BE SAID TH AT THE ASSESSEE HAS NOT RECEIVED ANY FEES FROM THE RESPECTIVE CLIENTS. 8. ON THE CONTRARY, SHRI SUPRIYO PAL, THE LEARNED D EPARTMENT REPRESENTATIVE SUBMITTED THAT THE AO FOUND CREDIT I N THREE BANK ACCOUNTS MAINTAINED BY THE ASSESSEE IN THE BANK OF RAJASTHAN LTD. AND THE VYSYA BANK LTD. AND INDIAN OVERSEAS BANK TO THE EXTENT OF RS.1,20,050/-. THE ASSESSEE HAS NOT PRODUCED ANY MATERIAL TO SUPPORT T HE SOURCE OF MAKING THIS DEPOSIT. THEREFORE, THE AO FOUND THAT THIS SUM OF RS.1,20,050/- WAS OVER AND ABOVE THE PROFESSIONAL FEE DISCLOSED BY TH E ASSESSEE IN THE PROFIT AND LOSS ACCOUNT. IN THE ABSENCE OF ANY MATE RIAL, THE CIT(A) HAS RIGHTLY CONFIRMED THE ADDITION MADE BY THE AO. 9. SHRI SUPRIYO PAL, THE LEARNED DEPARTMENT REPRESE NTATIVE FURTHER SUBMITTED THAT SOME OF THE CHEQUES AND PAY IN SLIP WAS FOUND WITH THE ASSESSEE. SOME OF THE PRO-NOTE EXECUTED IN FAVOUR O F M/S.ASHOKA TRADERS WAS ALSO FOUND IN THE LOCKERS OF THE BANK O F RAJASTHAN. EVEN THOUGH THE ASSESSEE IS NOT A PARTNER, THE PARTNERSH IP FIRM WAS TOTALLY CONTROLLED BY THE ASSESSEE. THEREFORE, THE ADDITION WAS RIGHTLY MADE BY THE ASSESSING OFFICER. 9 I.T.A. NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, M/S.ASHOKA TRADERS IS A PARTNERSHIP FIRM AND THE AS SESSEE IS NOT A PARTNER. THE ADDITION MADE BY THE ASSESSING OFFICER IS ONLY IN RESPECT OF THE CREDIT FOUND IN THE BANK ACCOUNT WHICH STANDS I N THE NAME OF M/S.ASHOKA TRADERS. THE AO CLAIMS THAT SOME OF THE PRO-NOTE, PAY IN SLIPS AND CHEQUES OF M/S.ASHOKA TRADERS WAS FOUND W ITH THE ASSESSEE. 11. THE AO HAS FOUND THAT THE ASSESSEE WAS CONTROLL ING M/S.ASHOKA TRADERS. THE FACT REMAINS THAT PRO-NOTES, CHEQUES A ND PAY IN SLIPS BELONGS TO ASHOKA TRADERS. THEREFORE, IT IS FOR THE REVENUE TO PROVE HOW THE CHEQUES, PAY IN SLIPS AND PRO-NOTES RELATES TO THE ASSESSEE, WHEN IT IS APPARENTLY BELONG TO M/S.ASHOKA TRADERS. IN THE ABSENCE OF ANY MATERIAL ON RECORD, IT CANNOT BE SAID THAT THE ASSE SSEE WAS CONTROLLING M/S.ASHOKA TRADERS. THEREFORE, AS RIGHTLY SUBMITTED BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE ADDITION IF ANY, HAS TO BE MADE IN RESPECT OF CHEQUES, PAY IN SLIPS AND PRO-NOTES FOUND ONLY I N THE HANDS OF M/S.ASHOKA TRADERS AND CERTAINLY NOT IN THE HANDS O F THE ASSESSEE. THEREFORE, THE ADDITION MADE IN THE HANDS OF THE AS SESSEE TO THE EXTENT OF RS.20,13,000/- IS NOT JUSTIFIED. ACCORDINGLY, TH E ORDERS OF THE LOWER AUTHORITIES ARE SET ASIDE AND THE ADDITION OF RS20, 13,000/- ARE DELETED. 10 I.T.A. NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 12. NOW COMING TO ADDITION OF RS.1,20,050/-, ADMITTEDLY , THERE WAS A CREDIT FOUND IN THE BANK OF RAJASTHAN LTD. TO THE EXTENT OF RS.71,050/- AND IN THE VYSYA BANK LTD. TO THE EXTENT OF RS.32,9 00/- AND IN THE INDIAN OVERSEAS BANK TO THE EXTENT OF RS.16,000/-. THE TOT AL DEPOSIT COMES TO NEARLY RS.1,20,050/-. THE ASSESSING OFFICER FOUND T HAT THE ASSESSEE HAS NOT FILED ANY MATERIAL BEFORE HIM. THEREFORE, HE TR EATED THE ABOVE SAID DEPOSIT AS PROFESSIONAL FEES RECEIVED OVER AND ABOV E WHAT WAS DISCLOSED IN THE PROFIT AND LOSS ACCOUNT. THE FACT REMAINS IS THAT THE ASSESSEE IS A PRACTICING CHARTERED ACCOUNTANT AND HE DEPOSITED TH E FEE IN THE BANK ACCOUNT AND ALSO DISCLOSED THE SAME IN THE PROFIT A ND LOSS ACCOUNT. FROM THE ORDER OF THE LOWER AUTHORITIES, IT APPEARS THAT THE ASSESSEE HAS FURNISHED THE LIST OF PROFESSIONAL RECEIPTS. THE AS SESSING OFFICER FOUND THAT THE LIST GIVEN BY THE ASSESSEE WAS INCOMPLETE AND THE ADDRESS OF THE PERSON FROM WHOM THE PROFESSIONAL FEE WAS COLLECTED IS NOT AVAILABLE ON RECORD. THEREFORE, THE ASSESSING OFFICER COULD NOT MAKE ANY CROSS VERIFICATION FROM WHOM THE PROFESSIONAL FEE WAS SAI D TO BE RECEIVED BY THE ASSESSEE. THE FACT REMAINS THAT THE ASSESSEE HA S FURNISHED ADDITIONAL INFORMATION BEFORE THIS TRIBUNAL IN THE FIRST ROUND OF LITIGATION. THE INFORMATION FILED BY THE ASSESSEE WAS NOT EXAMINED BY THE AO AS DIRECTED BY THIS TRIBUNAL. EVEN THOUGH THE ASSESSIN G OFFICER OBSERVED 11 I.T.A. NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 THAT THERE WAS OBSTACLE IN CROSS VERIFYING THE DETA ILS FILED BY THE ASSESSEE, IT IS NOT KNOWN, WHAT ARE THE OBSTACLES F ACED BY THE ASSESSING OFFICER. THE ASSESSING OFFICER HAS SIMPLY DISALLOWE D THE CLAIM OF THE ASSESSEE ON THE GENERAL OBSERVATION WITHOUT EXAMINI NG THE DETAILS FILED BY THE ASSESSEE AS DIRECTED BY THE TRIBUNAL. THEREF ORE, THIS TRIBUNAL IS UNABLE TO UPHOLD THE ORDER OF THE AUTHORITIES BELOW . ACCORDINGLY, THE ORDER OF THE AUTHORITIES BELOW ARE SET ASIDE AND TH E ADDITION OF RS.1,20,050/- IS DELETED. 13. NOW COMING TO THE ADDITION OF RS.59,000/- ON TH E LOAN TO SHRI RAJENDRA K.SHETH, THE ASSESSING OFFICER FOR THE REA SONS RECORDED BY HIM OF MAKING ADDITION IN THE HANDS OF M/S.ASHOKA TRADE RS, MADE ADDITION OF RS.50,000/- ON THE LOAN ADVANCED TO SHRI RAJENDRA K .SHETH AND ANOTHER SUM OF RS.9,000/- TOWARDS INTEREST THEREON. IN THE CASE OF M/S.ASHOKA TRADERS, THERE WAS A CREDIT IN THE BANK ACCOUNT OF M/S.ASHOKA TRADERS AND THE ADDITION WAS MADE IN THE HANDS OF THE ASSES SEE ON THE ASSUMPTION THAT THE ASSESSEE WAS HAVING CONTROL OVE R M/S.ASHOKA TRADERS. IN THE CASE OF SHRI RAJENDRA K.SHETH, NO M ATERIAL WAS FOUND BY THE REVENUE AUTHORITIES DURING THE COURSE OF SEARCH OPERATION. IN THE ABSENCE OF ANY MATERIAL, THIS TRIBUNAL IS OF THE CO NSIDERED OPINION THAT THERE CANNOT BE ANY ADDITION ON A CASUAL REFERENCE BY THE ASSESSING 12 I.T.A. NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 OFFICER. THE CIT(A) ALSO HAS NOT DISCUSSED ANYTHING IN THE IMPUGNED ORDER. THEREFORE, THIS TRIBUNAL IS UNABLE TO UPHOLD THE ORDERS OF THE LOWER AUTHORITIES. ACCORDINGLY, THE ORDERS OF LOWER AUTHORITIES ARE SET ASIDE AND THE ADDITION MADE TOWARDS LOAN TO SHRI RA JENDRA K.SHETH TO THE EXTENT OF RS.50,000/- AND THE INTEREST OF RS.9, 000/- IS DELETED. 14. NOW COMING TO THE LOAN TO M/S.VUMMIDIARA (M.FRS .) LTD., THE ASSESSING OFFICER ASSUMED THAT THE ASSESSEES SILEN CE AMOUNTS TO ADMISSION. THEREFORE, HE MADE ADDITION OF RS.40,000 /- TOWARDS LOAN AND RS.5,000/- TOWARDS INTEREST. THE CIT(A) ALSO CONFIR MED THE ADDITION. IT IS PERTINENT TO NOTE THAT THIS TRIBUNAL HAS REMITTED B ACK THE MATTER TO THE FILE OF THE AO FOR RE-CONSIDERATION IN THE LIGHT OF THE MATERIAL ON RECORD IN THE FIRST ROUND OF LITIGATION. THERE IS NO DISCUSSI ON WITH ASSESSMENT ORDER WITH REFERENCE TO THE MATERIAL AVAILABLE ON RECORD TO INDICATE THAT THE ASSESSEE ADVANCED LOAN OF RS.40,000/- TO M/S.VUMMID IARA (M.FRS.) LTD. THERE IS NO DISCUSSION IN THE ORDER OF CIT(A) ORDER AS WELL. IT IS NOT KNOWN WHETHER THE ASSESSEE ADVANCED LOAN TO M/S.VUM MIDIARA (M.FRS.) LTD. IT IS FOR THE AO TO BRING ON RECORD THE MATERI ALS AVAILABLE ON RECORD TO SHOW THAT THE ASSESSEE HAS ADVANCED A SUM OF RS. 40,000/- ON INTEREST TO M/S.VUMMIDIARA (M.FRS.) LTD. IN THE ABSENCE OF A NY SUCH MATERIAL, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ADDI TION MADE BY THE AO TO 13 I.T.A. NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 THE EXTENT OF RS.40,000/- TOWARDS LOAN AND INTEREST OF RS.5,000/- IS NOT JUSTIFIED. ACCORDINGLY, THE ORDERS OF LOWER AUTHORI TIES ARE SET ASIDE AND THE ADDITION OF RS.45,000/- IS DELETED. 15. THE NEXT ADDITION IS IN RESPECT OF M/S.EMKAY CR EDIT CORPORATION. FROM THE ORDER OF THE LOWER AUTHORITIES, IT APPEARS THAT CERTAIN MATERIALS LIKE BOOKS OF ACCOUNTS, PAY IN SLIPS RELATING TO DE POSIT OF MONEY IN THE THE VYSYA BANK LTD. WERE FOUND IN THE PREMISES OF T HE ASSESSEE. IT APPEARS FROM THE ORDERS OF THE LOWER AUTHORITIES TH AT THE ASSESSEE EXPLAINED THEM THAT THE ASSESSEE IS NOT A PARTNER I N M/S.EMKAY CREDIT CORPORATION. THE AO FOUND THAT THERE ARE SEVEN PART NERS IN M/S.EMKAY CREDIT CORPORATION AND THE ASSESSEE IS NOT A PARTNE R IN M/S.EMKAY CREDIT CORPORATION. HOWEVER, IT APPEARS THAT THE ASSESSEE S FATHER MR.P.D.MOHNOT AND ASSESSEES BROTHER, MR.S.P.MOHNOT ARE PARTNERS IN M/S.EMKAY CREDIT CORPORATION. THE AO HAS ALSO FOUND THAT DURING THE ASSESSMENT YEAR 1977-78 AND 1978-79, THE ASSESSEE W AS ALSO ONE OF THE PARTNERS IN M/S.EMKAY CREDIT CORPORATION. THEREFORE , THE AO FOUND THAT THE CREDIT FOUND IN THE BANK ACCOUNT OF M/S.EMKAY C REDIT CORPORATION BELONGS TO THE ASSESSEE. THE FACT THAT M/S.EMKAY CR EDIT CORPORATION IS A PARTNERSHIP FIRM AND ASSESSABLE SEPARATELY UNDER TH E INCOME TAX ACT IS NOT IN DISPUTE. THE AO WITHOUT ANY BASIS FOUND THAT M/S.EMKAY CREDIT 14 I.T.A. NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 CORPORATION WAS CONTROLLED BY THE ASSESSEE. THIS TR IBUNAL IS OF THE CONSIDERED OPINION THAT WHEN THE ASSESSEE IS NOT A PARTNER IN M/S.EMKAY CREDIT CORPORATION DURING THE YEAR UNDER CONSIDERAT ION, MERELY BECAUSE, HE WAS A PARTNER FOR THE ASSESSMENT YEAR 1977-78 & 1978-79, THERE CANNOT BE ANY ADDITION FOR THE YEAR UNDER CONSIDERA TION. THE DEPOSIT OF THE MONEY IN THE BANK ACCOUNT OF M/S.EMKAY CREDIT C ORPORATION CAN AT THE BEST BE ADDED TO THE TOTAL INCOME OF THE PARTNE RSHIP FIRM M/S.EMKAY CREDIT CORPORATION. HOWEVER, AT ANY STRETCH OF IMAG INATION, THE SAME CANNOT BE ADDED IN THE HANDS OF THE ASSESSEE. THERE FORE, THIS TRIBUNAL IS UNABLE TO UPHOLD THE ORDERS OF THE LOWER AUTHORITIE S. ACCORDINGLY, THE ORDERS OF LOWER AUTHORITIES ARE SET ASIDE AND THE A DDITION MADE IN THE HANDS OF THE ASSESSEE IN RESPECT OF DEPOSIT MADE IN THE BANK ACCOUNT OF M/S.EMKAY CREDIT CORPORATION IS DELETED. 16. THE NEXT ADDITION IS MADE IN RESPECT OF DEPOSIT OF MONEY IN SAVINGS BANK ACCOUNT NO.1176 IN THE NAME OF ONE SHR I PRAKASH CHANDRA K.JAIN. FROM THE ORDER OF THE LOWER AUTHORITIES, IT APPEARS THAT SHRI PRAKASH CHANDRA K.JAIN MAINTAIN A BANK ACCOUNT IN T HE BANK OF RAJASTHAN LTD. THE ASSESSING OFFICER FOUND THAT THE BANK ACCOUNT WAS OPENED AND OPERATED BY ASSESSEE IN THE NAME OF SHRI PRAKASH CHANDRA K.JAIN. THE EXISTENCE OF SHRI PRAKASH CHANDRA K.JAI N IS NOT IN DISPUTE. IT 15 I.T.A. NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 APPEARS THAT THE ASSESSEE REPRESENTED SHRI PRAKASH CHANDRA K.JAIN BEFORE THE INCOME TAX AUTHORITIES. THE ASSESSEE ALS O APPEARS TO HAVE FILED A WRIT PETITION. THESE FACTS WERE TAKEN ADVER SELY BY BOTH THE AUTHORITIES BELOW AGAINST THE ASSESSEE. THE FACT RE MAINS THAT SHRI PRAKASH CHANDRA K.JAIN IS AN INDEPENDENT ASSESSEE. THE EXISTENCE OF SHRI PRAKASH CHANDRA K.JAIN IS NOT IN DISPUTE. THER EFORE, THE DEPOSIT MADE IN THE BANK ACCOUNT OF SHRI PRAKASH CHANDRA K. JAIN CAN AT THE BEST BE ADDED IN THE HANDS OF SHRI PRAKASH CHANDRA K.JAI N AND NOT IN THE HANDS OF THE ASSESSEE. MERELY BECAUSE, THE ASSESSEE REPRESENTED SHRI PRAKASH CHANDRA K.JAIN BEFORE THE INCOME TAX AUTHOR ITIES AND ALSO FILED A WRIT PETITION IN CONNECTION WITH BANK LOCKER, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT, THAT CANNOT BE A REASON FO R MAKING ANY ADDITION IN THE HANDS OF THE PRESENT ASSESSEE. THEREFORE, WE ARE UNABLE TO UPHOLD THE ORDER OF THE LOWER AUTHORITIES. ACCORDINGLY, TH E ORDERS OF BOTH THE AUTHORITIES ARE SET ASIDE AND THE ADDITION MADE IN RESPECT OF DEPOSIT OF MONEY IN SAVINGS BANK ACCOUNT NO.1176 IN THE BANK O F RAJASTHAN LTD. IN THE NAME OF SHRI PRAKASH CHANDRA K.JAIN IS DELETED. 17. THE NEXT ADDITION IS WITH REGARD TO DEPOSIT OF MONEY IN THE BANK OF RAJASTHAN LTD. IN THE NAME OF M/S.EMKAY ENTERPRI SES. FROM THE ORDER OF THE AO, IT APPEARS THAT THE LETTER PAD, RUBBER S TAMP, ETC. OF 16 I.T.A. NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 M/S.EMKAY ENTERPRISES WAS FOUND IN THE PREMISES OF THE ASSESSEE. M/S.EMKAY ENTERPRISES IS A PARTNERSHIP FIRM. THERE ARE TWO PARTNERS. THE ASSESSEE IS ADMITTEDLY NOT THE PARTNER IN M/S.EMKAY ENTERPRISES. THE MONEY WAS DEPOSITED TO THE EXTENT OF RS.5,05,000/- IN THE BANK ACCOUNT OF M/S.EMKAY ENTERPRISES MAINTAINED IN THE BANK OF RAJASTHAN LTD. THE AO PRESUMED THAT THE ASSESSEE WAS CONTROLLING THE A DMINISTRATION OF M/S.EMKAY ENTERPRISES ON THE BASIS OF LETTER PAD AN D RUBBER STAMP SAID TO BE FOUND IN THE PREMISES OF THE ASSESSEE. THIS T RIBUNAL IS OF THE CONSIDERED OPINION THAT IN THE ABSENCE OF ANY MATER IAL AND THE ASSESSEE IS NOT A PARTNER IN M/S.EMKAY ENTERPRISES, MERELY B ECAUSE THE LETTER PAD AND RUBBER STAMP WERE FOUND IN THE PREMISES OF THE ASSESSEE THAT CANNOT BE A REASON FOR MAKING ANY ADDITION. THIS TR IBUNAL IS OF THE CONSIDERED OPINION THAT AT THE BEST, THE ADDITION C AN BE MADE EITHER IN THE HANDS OF M/S.EMKAY ENTERPRISES OR IN THE HANDS OF ANY OF ITS PARTNER. THEREFORE, WE ARE UNABLE TO UPHOLD THE ORDER OF THE LOWER AUTHORITIES. ACCORDINGLY, THE ORDERS OF BOTH THE AUTHORITIES ARE SET ASIDE AND THE ADDITION OF RS.5,05,000/- IN THE HANDS OF THE PRESE NT ASSESSEE IS DELETED. 18. THE NEXT GROUND OF APPEAL IS ADDITION MADE IN R ESPECT OF M/S.EMKAY INVESTMENTS. THE ASSESSING OFFICER FOUND THAT M/S.EMKAY INVESTMENTS WAS HAVING A BANK ACCOUNT IN THE BANK O F THANJAVUR LTD., 17 I.T.A. NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 EGMORE BRANCH. SHRI S.K.BHANDARI WAS THE PROPRIETOR OF M/S.EMKAY INVESTMENTS. THE ASSESSING OFFICER FOUND THAT THE P AY IN SLIPS AND CHEQUES OF M/S.EMKAY INVESTMENTS WAS FOUND IN THE P REMISES OF THE ASSESSEE. SHRI S.K.BHANDARI, THE SO CALLED PROPRIET OR OF M/S.EMKAY INVESTMENTS WAS ASSESSED TO INCOME TAX AND REPRESEN TED BY THE ASSESSEE BEING PRACTICING CHARTERED ACCOUNTANT. THE AO DOUBTED THE EXISTENCE OF SHRI S.K.BHANDARI. IT IS NOT KNOWN WHE N SHRI S.K.BHANDARI WAS AN INDEPENDENT PERSON AND HE WAS ALSO ASSESSED BY THE INCOME TAX DEPARTMENT AND HOW IT CAN BE SAID THAT SHRI S.K.BHA NDARI WAS NOT IN EXISTENCE. IT IS NOT THE CASE OF THE REVENUE THAT T HE ASSESSEE WAS OPERATING THE BANK ACCOUNT OF M/S.EMKAY INVESTMENTS . THE ONLY OBJECTION OF THE DEPARTMENT IS THAT PAY IN SLIPS, C HEQUES WERE FOUND IN THE POSSESSION OF THE ASSESSEE. THEREFORE, THE ASSE SSEE WAS CONTROLLING M/S.EMKAY INVESTMENTS. THIS TRIBUNAL IS OF THE CONS IDERED OPINION THAT EVEN IF IT IS PRESUMED THAT THE ASSESSEE WAS CONTRO LLING M/S.EMKAY INVESTMENTS, M/S.EMKAY INVESTMENTS BEING A PROPRIET ORSHIP CONCERN, THE ADDITION CAN BE MADE ONLY IN THE HANDS OF SHRI S.K. BHANDARI WHO IS THE PROPRIETOR OF M/S.EMKAY INVESTMENTS. IF SHRI S.K.BH ANDARI WAS NOT IN EXISTENCE AS CLAIMED BY THE ASSESSING OFFICER, THER E CANNOT BE ANY ASSESSMENT IN THE NAME OF SHRI S.K.BHANDARI. IN THE CASE BEFORE US, SHRI S.K.BHANDARI WAS ASSESSED TO TAX. THEREFORE, NOW TH E REVENUE CANNOT 18 I.T.A. NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 CLAIM THAT SHRI S.K.BHANDRARI IS A NONEXISTENT PERS ON. IN THIS CASE, WITHOUT MAKING ANY ENQUIRY, THE AO PRESUMED THAT SH RI S.K.BHANDARI WAS NOT IN EXISTENCE SINCE THE ASSESSEE COULD NOT P RODUCE SHRI S.K.BHANDARI BEFORE AO. THE INABILITY OF THE ASSESS EE TO PRODUCE SHRI S.K.BHANDARI CANNOT BE A REASON TO TREAT THAT SHRI S.K.BHANDARI WAS NOT IN EXISTENCE ESPECIALLY WHEN MR.BHANDARI WAS ASSESS ED TO INCOME TAX. IN VIEW OF THE ABOVE, THIS TRIBUNAL IS OF THE CONSIDER ED OPINION THAT THE ADDITION IF ANY HAS TO BE MADE ONLY IN THE HANDS OF SHRI S.K.BHANDARI AND NOT IN THE HANDS OF THE ASSESSEE. THEREFORE, WE ARE UNABLE TO UPHOLD THE ORDER OF THE LOWER AUTHORITIES. ACCORDINGLY, THE OR DERS OF BOTH THE AUTHORITIES ARE SET ASIDE AND THE ADDITION MADE BY THE ASSESSING OFFICER IS DELETED. 19. THE NEXT ADDITION WITH REGARD TO LOAN BY INDU I NVESTMENTS. FROM THE ORDER OF THE AO, IT APPEARS THAT XEROX COPIES O F TWO PRO-NOTES EXECUTED IN FAVOUR OF INDU INVESTMENTS FOR RS.25,00 0/- AND RS.35,000/- WAS FOUND IN THE PREMISES OF THE ASSESSEE. THE DOCU MENT DOES NOT DISCLOSE IN WHOSE FAVOUR THE SAME WAS EXECUTED. SIN CE THE PRO-NOTE WAS FOUND IN THE PREMISES OF THE ASSESSSEE, THE ASSESSI NG OFFICER PRESUMED THAT THE MONEY WAS ADVANCED BY THE ASSESSEE. THIS T RIBUNAL IS OF THE CONSIDERED OPINION THAT UNLESS AND UNTIL IT IS ESTA BLISHED THAT THE 19 I.T.A. NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 ASSESSEE ADVANCED MONEY MERELY BECAUSE A BLANK PRON OTE THAT TOO XEROX COPY WAS FOUND, IT CANNOT BE SAID THAT THE AS SESSEE ADVANCED MONEY TO INDU INVESTMENTS. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT ON THE BASIS OF THE XEROX COPY OF THE SO CALLE D PRO-NOTE SAID TO BE EXECUTED BY INDU INVESTMENTS, THERE CANNOT BE ANY A DDITION IN THE HANDS OF THE ASSESSEE. ACCORDINGLY, THE ADDITION MA DE TO THE EXTENT OF RS.60,000/- TOWARDS LOAN AND RS.12,000/- TOWARDS IN TEREST IS NOT JUSTIFIED. THEREFORE, WE ARE UNABLE TO UPHOLD THE O RDERS OF THE LOWER AUTHORITIES. ACCORDINGLY, THE ORDERS OF BOTH THE AU THORITIES ARE SET ASIDE AND THE ADDITION MADE BY THE ASSESSING OFFICER IS D ELETED. 20. THE NEXT ADDITION IS IN RESPECT OF DEPOSIT IN T HE BANK ACCOUNT IN NAME OF SRHI N.PURUSHOTHAMAN AND SHRI C.BELLA. FROM THE ORDER OF THE LOWER AUTHORITIES, IT APPEARS THAT TWO PASSBOOKS RE LATING TO SAVINGS BANK ACCOUNT IN TRIVANDRUM COOPERATIVE BANK LTD., TRIVAN DRUM IN THE NAME OF SRHI N.PURUSHOTHAMAN AND SHRI C.BELLA WAS FOUND IN THE PREMISES OF THE ASSESSEE. APPARENTLY, THE BANK ACCOUNT STANDS IN TH E NAME OF SRHI N.PURUSHOTHAMAN AND SHRI C.BELLA. THE EXISTENCE OF SRHI N.PURUSHOTHAMAN AND SHRI C.BELLA IS NOT IN DISPUTE. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE BANK ACCOUNT APPARANTELY STANDS IN THE NAME OF SRHI N.PURUSHOTHAMAN AND SHRI C.BELLA. MERELY 20 I.T.A. NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 BECAUSE OF THE PASSBOOK RELATING TO THAT ACCOUNT WA S FOUND IN THE PREMISES OF THE ASSESSEE, THAT CANNOT BE A REASON F OR MAKING ANY ADDITION IN THE HANDS OF THE ASSESSEE. THEREFORE, T HIS TRIBUNAL IS UNABLE TO UPHOLD THE ORDER OF THE LOWER AUTHORITIES. ACCOR DINGLY, THE ORDERS OF BOTH THE AUTHORITIES ARE SET ASIDE AND THE ADDITION OF RS.12,685/- IS DELETED. 21. THE NEXT GROUND OF APPEAL IS WITH REGARD TO ADD ITION OF RS.1,18,000/- TOWARDS LOAN IN THE NAME OF M/S.BOMBA Y FINANCE AND C.P.ENTERPRISES. FROM THE ORDER OF THE LOWER AUTHOR ITIES, IT APPEARS THAT M/S.BOMBAY FINANCE ADVANCED A SUM OF RS.50,000/- TO ONE MR.PREMKUMAR SHETH. CERTAIN DOCUMENTS RELATING TO A DVANCE OF MONEY BY M/S.BOMBAY FINANCE WAS FOUND IN THE PREMISES OF THE ASSESSEE. SIMILARLY, CERTAIN DOCUMENTS RELATING TO LOAN ADVAN CE TO C.P.ENTERPRISES TO SMT.JASMINE K.SHETH ALSO WAS FOUND IN THE PREMIS ES OF THE ASSESSEE. IN THE ABSENCE OF ANY EXPLANATION FROM THE ASSESSEE , THE ASSESSING OFFICER APPEARS TO HAVE MADE AN ADDITION IN THE HAN DS OF THE PRESENT ASSESSEE. THE FACT REMAINS IS THAT M/S.BOMBAY FINAN CE AND C.P.ENTERPRISES ADVANCED A SUM OF RS.50,000/- EACH TO MR.PREMKUMAR SHETH AND SMT.JASMINE K.SHETH. IT IS APPARENT FROM THE MATERIAL AVAILABLE ON RECORD THAT THE ASSESSEE IS NOT A PART Y TO THE LOAN 21 I.T.A. NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 TRANSACTION. IT IS ALSO NOT THE CASE OF THE REVENUE THAT THE ASSESSEE IS RELATED TO M/S.BOMBAY FINANCE AND C.P.ENTERPRISES. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT WHEN THE APPARENT LOAN TRANSACTION WAS BETWEEN BOMBAY FINANCE AND MR.PREMKUMAR SHETH, NO A DDITION CAN BE MADE IN THE HANDS OF THE PRESENT ASSESSEE. SIMILARL Y, WHEN THE TRANSACTION WAS BETWEEN C.P.ENTERPRISES AND SMT.JAS MINE K.SHETH, THERE CANNOT BE ANY ADDITION IN THE HANDS OF THE PRESENT ASSESSEE. WHAT IS APPARENT FROM THE FACE OF THE RECORD CANNOT BE IGNO RED BY THE REVENUE AUTHORITIES IN THE ABSENCE OF ANY OTHER MATERIAL. T HEREFORE, THIS TRIBUNAL IS UNABLE TO UPHOLD THE ADDITION OF RS.1,18,000/-. ACCORDINGLY, THE ORDERS OF BOTH THE AUTHORITIES BELOW ARE SET ASIDE AND THE ADDITION MADE BY THE AO TO THE EXTENT OF RS.1,18,000/- IS DELETED. 22. THE NEXT GROUND OF APPEAL IS IN RESPECT OF CRED IT IN BANK ACCOUNT IN THE NAME OF KUSHAL TRADERS. FROM THE ORDER OF TH E LOWER AUTHORITIES, IT APPEARS THAT KUSHAL TRADERS IS A PARTNERSHIP FIRM. THE ASSESSEES FATHER IS ALSO ONE OF THE PARTNER. IT IS ALSO NOT IN DISPU TE THAT THE ASSESSEE IS NOT A PARTNER IN KUSHAL TRADERS. THE AO PRESUMED TH AT THE PARTNERSHIP FIRM KUSHAL TRADERS WAS OWNED AND CONTROLLED BY THE ASSESSEE. IT IS NOT KNOWN WHEN THE ASSESSEE IS NOT A PARTNER, HOW HE CA N OWN AND CONTROL A PARTNERSHIP FIRM. MERELY BECAUSE THE ASSESSEES F ATHER WAS A PARTNER IN 22 I.T.A. NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 M/S.KUSHAL TRADERS, THIS TRIBUNAL IS OF THE CONSIDE RED OPINION THAT THE DEPOSIT MADE IN KUSHAL TRADERS ACCOUNT CANNOT BE CO NSIDERED AS DEPOSIT MADE BY THE ASSESSEE. AT THE BEST, THE ADDITION CAN BE MADE EITHER IN THE HANDS OF THE M/S.KUSHAL TRADERS OR IN THE HANDS OF THE PARTNERS OF THE SAID FIRM. AT ANY STRETCH OF IMAGINATION, THERE CANNOT BE ANY ADDITION IN THE HANDS OF THE PRESENT ASSESSEE. THEREFORE, TH IS TRIBUNAL IS UNABLE TO UPHOLD THE ORDER OF THE LOWER AUTHORITIES. ACCOR DINGLY, THE ORDERS OF BOTH THE AUTHORITIES ARE SET ASIDE AND THE ADDITION MADE BY THE AO IS DELETED. TO SUM UP, THE ADDITION MADE TO THE EXTENT OF RS.48,11,610/- IS DELETED. 23. NOW COMING TO ASSESSMENT YEAR 1984-85 IN ITA NO.1385/MDS/2016, SIMILAR ADDITIONS WERE MADE AS IT WAS MADE FOR THE ASSESSMENT YEAR 1983-84. SIMILAR ARGUMENTS WERE ADV ANCED BY THE LEARNED COUNSEL FOR THE ASSESSEE AND THE LEARNED RE PRESENTATIVE FOR THE DEPARTMENT, AS IT WAS ADVANCED FOR THE ASSESSMENT Y EAR 1983-84. THE CIT(A) ALSO CONFIRMED THE ORDER OF THE ASSESSING OF FICER ON THE SAME REASON AS IT WAS GIVEN FOR THE ASSESSMENT YEAR 1983 -84. SINCE IDENTICAL ADDITION MADE WAS DELETED BY THIS TRIBUNAL FOR THE ASSESSMENT YEAR 1983-84 FOR THE SAME REASON, THE ADDITION MADE BY T HE ASSESSING OFFICER FOR THE ASSESSMENT YEAR 1984-85 IS ALSO DELETED. 23 I.T.A. NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 24. NOW COMING TO ASSESSMENT YEAR 1991-92 IN ITA NO.1386/MDS./2016, THE FIRST ISSUE ARISES FOR CONSI DERATION IS ADDITION OF RS.55,795/-. ON THE BASIS OF THE REFUND SAID TO BE RECEIVED BY M.M. ENTERPRISES ON THE BASIS OF FORGED TDS CERTIFICATE. SHRI D.ANAND, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE IDENTICAL ISSUE WAS CONSIDERED BY THE TRIBUNAL IN THE ASSESSEES OWN CA SE FOR THE ASSESSMENT YEAR 1985-86 IN ITA NO.2318 (MDS)/90 AND THIS TRIBUNAL FOUND THAT THERE WAS NO MATERIAL TO INDICATE THAT T HE ASSESSEE WAS A BENEFICIARY OF THE REFUND. FOR THE ASSESSMENT YEAR 1985-86 ALSO, THERE WAS AN ALLEGATION THAT THE ASSESSEE RECEIVED REFUND ON BEHALF OF MANY PERSONS. THIS TRIBUNAL FOUND THAT EVEN THOUGH ECONO MIC OFFENSE CASES ARE PENDING AGAINST THE ASSESSEE, THE FACT REMAINS THAT THE ASSESSEE WAS NOT BENEFICIARY OF THE SO CALLED REFUNDS. THEREFORE , THE SIMILAR ADDITION WAS DELETED BY CIT(A) WHICH WAS CONFIRMED BY THIS T RIBUNAL. IN VIEW OF THIS, ACCORDING TO THE LEARNED COUNSEL, ADDITION MA DE BY THE ASSESSING OFFICER WAS NOT JUSTIFIED. 25. WE HAVE HEARD THE LEARNED REPRESENTATIVE FOR TH E DEPARTMENT ALSO. THE FACT REMAINS THAT THERE WAS AN ALLEGATION AGAINST THE ASSESSEE THAT ON THE BASIS OF THE FORGED TDS CERTIFICATE, HE RECEIVED TDS AMOUNT 24 I.T.A. NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 OF RS.55,795/- ON BEHALF OF M/S. M.M. ENTERPRISES. THE LEARNED DEPARTMENT REPRESENTATIVE SUBMITTED THAT THE ISSUE OF TDS ON THE BASIS OF THE FORGED TDS CERTIFICATE TRAVELLED UP TO THE M ADRAS HIGH COURT IN THE CASE OF THANGAMANI. THE MADRAS HIGH COURT IN FACT S ET ASIDE THE ORDER OF THIS TRIBUNAL IN THE CASE OF THANGAMANI. THE CIT(A) IN FACT FOLLOWED THE ORDER OF THE MADRAS HIGH COURT. THE CIT(A) BY FOLLO WING THE JUDGMENT OF THE MADRAS HIGH COURT CONFIRMED THE ORDER TO THE AS SESSING OFFICER. 26. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THIS TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 1985-86 EXAMINED THE ISSUE AND FOUND THAT THE ASSESSEE IS NOT THE BENEFI CIARY OF THE REFUND SAID TO BE RECEIVED ON THE BASIS OF THE FORGED TDS CERTIFICATE. THE CIT(A) REFERRED TO THE JUDGMENT OF MADRAS HIGH COURT IN CI T VS. K.THANGAMANI, A COPY OF MADRAS HIGH COURT JUDGMENT IS NOT AVAILAB LE ON RECORD. THEREFORE, WE ARE UNABLE TO GO THROUGH THE JUDGMENT OF THE MADRAS HIGH COURT. IT IS ALSO AN ADMITTED FACT THAT FOR THE ASS ESSMENT YEAR 1985-86, THIS TRIBUNAL FOUND THAT THE ASSESSEE IS NOT THE BE NEFICIARY OF THE SO CALLED REFUND RECEIVED ON BEHALF OF SEVERAL OTHER C OMPANIES. IT IS NOT THE CASE OF THE REVENUE THAT THE ORDER OF THIS TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 1985-86 WAS CHALLENGED BEFORE HIGH COURT. IN THE ABSENCE OF COPY OF THE JUDGMENT OF TH E MADRAS HIGH COURT 25 I.T.A. NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 IN THANGAMANIS CASE BEFORE THIS TRIBUNAL WE ARE CO NSIDERED OPINION THAT THE MATTER NEED TO BE RE-EXAMINED BY THE ASSESSING OFFICER. ACCORDINGLY, THE ORDERS OF THE LOWER AUTHORITIES ARE SET ASIDE A ND THE ISSUE IS REMITTED BACK TO THE FILE OF THE AO. THE AO SHALL REEXAMINE THE MATTER AFRESH AND THEREAFTER DECIDE THE SAME IN ACCORDANCE WITH LAW A FTER CONSIDERING THE JUDGMENT OF THE MADRAS HIGH COURT IN CIT VS. K.THAN GAMANI AND THE DECISION OF THIS TRIBUNAL IN THE ASSESSEES OWN CAS E FOR THE ASSESSMENT YEAR 1985-86 IN ITA NO.2318 (MDS)/90 AFTER GIVING R EASONABLE OPPORTUNITY TO THE ASSESSEE. 27. IN THE RESULT, THE APPEAL IN ITA NO.1386/MDS/20 16 IS ALLOWED FOR STATISTICAL PURPOSES. 28. NOW COMING TO ASSESSMENT YEAR 1992-93, THE FIRS T ISSUE ARISES FOR CONSIDERATION IS ADDITION OF RS.1,15,000/- UNDER SE CTION 69 OF THE ACT. SHRI D.ANAND, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS DEPOSITED RS.1,15,000/- ON VARIOUS DAT ES IN THE BANK ACCOUNT. THE ASSESSEE EXPLAINED THAT THE ASSESSEE H AS RECEIVED PROFESSIONAL FEE TO THE EXTENT OF RS.60,000/-. THE ASSESSING OFFICER FOUND THAT THE TOTAL PROFESSIONAL FEE RECEIVED BY THE ASS ESSEE FOR THE ASSESSMENT YEAR 1991-92 WAS RS.2,13,515/- OUT OF TH IS, THE ASSESSEE 26 I.T.A. NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 HAS SPENT RS.49,400/- TOWARDS AUDIT. THE ASSESSEE H AS TAKEN THE NET RECEIPT OF RS.1,64,450/- TO THE PROFIT AND LOSS ACC OUNT. THE ASSESSING OFFICER AFTER CONSIDERING THE EXPENSES OF THE FAMIL Y AND THE DEPOSITS MADE IN THE BANK ACCOUNT MAINTAINED IN UNION BANK O F INDIA, SOWCARPET BRANCH, MADRAS MADE AN ADDITION OF RS.65,000/- UNDE R SECTION 69 OF THE ACT. SIMILARLY, THE CASH DEPOSIT MADE ON 19.10.1991 WAS ALSO TAKEN AS UNEXPLAINED INVESTMENT UNDER SECTION 69 OF THE ACT TO THE EXTENT OF RS.50,000/-. ACCORDING TO THE LEARNED REPRESENTATIV E, THESE ARE OF PROFESSIONAL RECEIPTS. THE ASSESSEES FAMILY IS A H INDU UNDIVIDED FAMILY. ALL THE FAMILY MEMBERS INCLUDING THE ASSESSEES BRO THER, FATHER, ETC. ARE LIVING TOGETHER. ALL OF THEM HAVE INDEPENDENT SOURC E OF INCOME. THEREFORE, THE ASSESSING OFFICER IS NOT JUSTIFIED I N ESTIMATING THE DRAWINGS FOR THE PERSONAL EXPENDITURE. THEREFORE, THE ADDITI ON MADE BY THE ASSESSING OFFICER TO THE EXTENT OF RS.1,15,000/- IS NOT JUSTIFIED. 29. ON THE CONTRARY, SHRI SUPRIYO PAL, THE LEARNED REPRESENTATIVE FOR THE DEPARTMENT SUBMITTED THAT THE ASSESSING OFFICER AFTER CONSIDERING THE DEPOSITS MADE IN THE BANK ACCOUNT AND THE TOTAL PRO FESSIONAL RECEIPTS FOUND THAT THE DEPOSITS MADE IN THE BANK ACCOUNT IN THE MONTH OF APRIL AND MAY WAS FROM UNDISCLOSED SOURCE. THEREFORE, HE BROUGHT THE SAME TO THE EXTENT OF RS.65,000/- FOR TAXATION. SIMILARL Y, THE DEPOSIT MADE ON 27 I.T.A. NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 19.10.1991 FOR RS.60,000/- WAS ALSO FROM UNDISCLOSE D SOURCE. THEREFORE, THE CIT(A) HAS RIGHTLY CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. 30. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE ASSESSEE IS PRACTICING AS CHARTERED ACCOUNTANT. IT IS NOT IN DI SPUTE THAT HE HAS RECEIVED PROFESSIONAL FEE FROM 226 CLIENTS. THE ASS ESSING OFFICER ESTIMATED THE NET PROFESSIONAL FEE AT RS.1,64,450/-. THE ASSESSING OFFICER HAS ALSO FOUND THAT THE ASSESSEE HAS PAID RS.44,000 /- TOWARDS PPF AND RS.6,475/- TOWARDS LIC. THE FACT REMAINS IS THAT TH E ASSESSEES FAMILY IS A HINDU UNDIVIDED FAMILY. ALL THE FAMILY MEMBERS IN CLUDING THE ASSESSEES BROTHER, FATHER, ETC. ARE LIVING TOGETHER. THEREFOR E, THE FAMILY EXPENSES FOR MEETING THE DAY TO DAY NEEDS COULD BE SHARED BY ALL THE MEMBERS OF THE HINDU UNDIVIDED FAMILY. IN THOSE CIRCUMSTANCES, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE AO IS NOT JUSTIFIED IN MAKING ADDITION OF RS.1,15,000/-. THE PROFESSIONAL RECEIPT DISCLOSED B Y THE ASSESSEE AND THE FACT THAT THE ASSESSEE WAS LIVING IN A JOINT FAMILY CANNOT BE IGNORED BY THE ASSESSING OFFICER WHILE MAKING AN ADDITION ON E STIMATE BASIS. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINI ON THAT THE ADDITION MADE BY THE ASSESSING OFFICER TO THE EXTENT OF RS.1 ,15,000/- IS NOT 28 I.T.A. NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 JUSTIFIED. ACCORDINGLY, THE ORDERS OF THE LOWER AUT HORITIES ARE SET ASIDE AND THE ADDITION MADE BY THE AO TO THE EXTENT OF RS .1,15,000/- IS DELETED. 31. THE NEXT ISSUE ARISES FOR CONSIDERATION IS ADDI TION OF RS.97,000/- UNDER SECTION 69C OF THE ACT. SHRI D.ANAND, THE LEA RNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT DURING THE YEAR UNDER CONSI DERATION, THE ASSESSEE HAS REPAID JEWEL LOAN TAKEN FROM VYSYA BAN K LIMITED, ON 29.01.1992 TO THE EXTENT OF RS.97,200/-. THE ASSESS EE EXPLAINED BEFORE THE ASSESSING OFFICER THAT THE JEWEL LOAN WAS IN FA CT TAKEN BY HIS WIFE AND REPAID BY HIS WIFE. THE LEARNED COUNSEL FOR THE ASS ESSEE SUBMITTED THAT THE LOAN TAKEN BY HIS WIFE AND REPAYMENT THEREOF RE FLECTED IN SEIZED MATERIAL. MERELY BECAUSE THE JEWEL LOAN WAS NOT REF LECTED IN THE LEDGER BOOK MAINTAINED BY THE ASSESSEES WIFE SMT.HEMA MOH NOT, THE ASSESSING OFFICER MADE ADDITION IGNORING THE MATERIAL FOUND D URING THE COURSE OF SEARCH OPERATION. SINCE THE LOAN WAS TAKEN BY THE A SSESSEES WIFE ACCORDING TO THE LEARNED COUNSEL, NO ADDITION CAN B E MADE IN THE HANDS OF THE PRESENT ASSESSEE. 32. ON THE CONTRARY, THE LEARNED REPRESENTATIVE FOR THE DEPARTMENT SUBMITTED THAT THERE IS NO REFERENCE ABOUT THE JEWE L LOAN TAKEN BY THE 29 I.T.A. NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 ASSESSEES WIFE IN THE LEDGER BOOK MAINTAINED BY SM T.HEMA MOHNOT. MOREOVER, THE DETAILS OF THE JEWEL LOAN AVAILED BY THE ASSESSEE WAS NOT PRODUCED BEFORE THE AO. THEREFORE, THE EXPLANATION OF THE ASSESSEE THAT THE JEWEL LOAN WAS OBTAINED BY HIS WIFE IS AN AFTER THOUGHT. 33. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT THE SEIZED MATERIAL ITEM NO.58 SHOWS THAT THIS JEWE L LOAN WAS AVAILED BY ASSESSEES WIFE SMT.HEMA MOHNOT FROM VYSYA BANK LTD . THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICE R CANNOT IGNORE THIS VITAL DOCUMENT FOUND DURING THE COURSE OF SEARCH OP ERATION. MERE NON REFERENCE IN THE LEDGER BOOK MAINTAINED BY THE ASSE SSEES WIFE REGARDING THE JEWEL LOAN AVAILED BY HER CANNOT BE A REASON TO IGNORE THE INFORMATION / MATERIAL FOUND DURING THE COURSE OF SEARCH OPERAT ION. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ADDI TION MADE BY THE ASSESSING OFFICER TO THE EXTENT OF RS.97,200/- IN T HE HANDS OF THE ASSESSEE IS NOT JUSTIFIED. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ADDITION IF ANY COULD BE MADE ONLY IN THE HANDS OF SMT.HEMA MOHNOT IN CASE SHE COULD NOT EXPLAIN THE SOURCE FOR REPAYM ENT OF JEWEL LOAN. ACCORDINGLY, THE ADDITION MADE BY THE ASSESSING OFF ICER IS DELETED. 30 I.T.A. NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 34. THE NEXT GROUND OF APPEAL IS WITH REGARD TO ADD ITION OF RS.4,000/- UNDER SECTION 68 OF THE INCOME TAX ACT. SHRI D.ANAN D, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSE E HAS RECEIVED HAND LOAN OF RS.4,000/- FROM MR.K.J.JOY. THE AO MADE AN ADDITION ON THE GROUND THAT THE ASSESSEE COULD NOT ESTABLISH THE CL AIM OF LOAN. ACCORDING TO THE LEARNED COUNSEL, THE ASSESSEE HAS FURNISHED THE ADDRESS OF SHRI K.J.JOY WHO ADVANCED MONEY TO THE ASSESSEE. THE AO HAS NOT TAKEN ANY PAIN TO EXAMINE SHRI K.J.JOY. WHEN THE ASSESSEE CLAIMS THAT THE ASSESSEE RECEIVED RS.4,000/- FROM SHRI K.J.JOY, THE ASSESSING OFFICER CANNOT REJECT THE CLAIM OF THE ASSESSEE MERELY BECA USE, NO CONFIRMATION LETTER WAS FILED FROM THE CREDITOR. IT IS FOR THE A O TO EXAMINE THE CREDITOR AND FIND OUT THE GENUINENESS OF THE TRANSACTION. 35. ON THE CONTRARY, SHRI SUPRIYO PAL, THE LEARNED REPRESENTATIVE FOR THE DEPARTMENT SUBMITTED THAT THOUGH THE ASSESSEE C LAIMED BEFORE THE CIT(A) THAT HE FURNISHED ALL THE DETAILS OF SHRI K. J.JOY FROM WHOM THE MONEY WAS RECEIVED BY THE ASSESSEE, THERE WAS NO RE FERENCE IN THE ORDER OF AO ABOUT THE SO CALLED DETAILS SAID TO BE FURNISHED BY THE ASSESSEE. EVEN BEFORE CIT(A), THE ASSESSEE HAS NOT FURNISHED ANY LETTER FROM THE SO CALLED SHRI K.J.JOY. THEREFORE, THE CIT (A) HAS RIGHTLY CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICE R. 31 I.T.A. NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 36. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE ASSESSEE CLAIMS THAT THE HE RECEIVED A HAND LOAN OF RS.4,000/- FROM SHRI K.J.JOY. THE ASSESSEE ALSO CLAIMS THAT HE FURNISHED THE NAME AND ADDRESS OF THE CREDITOR BEFORE THE AO. THE AO HOWEVER DISALLOWED T HE CLAIM OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE WAS NOT SU CCESSFUL IN ESTABLISHING THE CLAIM. THE CIT(A) HAD BEEN CONFIRM ED THE ORDER OF THE AO ON THE GROUND THAT THERE WAS NO INDICATION IN TH E ASSESSMENT ORDER ABOUT FURNISHING OF THE ADDRESS OF THE CREDITOR BEF ORE THE AO. THE FACT REMAINS IS THAT THE AO MADE ADDITION OF RS.4,000/- ON THE GROUND THAT THE ASSESSEE WAS NOT SUCCESSFUL IN ESTABLISHING THE CLA IM OF HAND LOAN. THAT MEANS THE ASSESSEE HAS FURNISHED CERTAIN DETAILS RE GARDING THE CREDITOR. WHEN THE ASSESSEE HAS FURNISHED CERTAIN DETAILS REG ARDING THE CREDITOR, THEN IT IS FOR THE AO TO EXAMINE THE CREDITORS IN O RDER TO FIND THE GENUINENESS OF THE TRANSACTION. SINCE THE AO HAS NO T TAKEN ANY SUCH EXERCISE TO FIND OUT THE GENUINENESS OF THE TRANSAC TION, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THERE CANNOT BE ANY ADD ITION UNDER SECTION 68 OF THE INCOME TAX ACT MERELY BECAUSE THE ASSESSE E COULD NOT PRODUCE THE CREDITOR BEFORE THE AO. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ADDITION MADE BY THE AO TO THE EXTENT OF RS.4,000/- IS NOT JUSTIFIED. ACCORDINGLY, THE ORDER S OF THE LOWER AUTHORITIES 32 I.T.A. NOS. 1383, 1384, 1385, 1386 & 1387/MDS/2016 ARE SET ASIDE AND THE ADDITION MADE BY THE AO TO THE EXTENT OF RS.4,000/- IS DELETED. 37. IN THE RESULT, ITA NOS.1384, 1385 AND 1387/MDS/ 2016 ARE ALLOWED AND ITA NO.1386/MDS/2016 IS PARTLY ALLOWED. ORDER PRONOUNCED ON 25 TH NOVEMBER, 2016 AT CHENNAI. SD/- SD/- ( . . ! '# ) ( . . . ) (D.S. SUNDER SINGH) (N.R.S. GANESAN) $ /ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 1 /DATED, THE 25 TH NOVEMBER, 2016. SP. + )-'2 320- /COPY TO: 1. '( /APPELLANT 2. )*'( /RESPONDENT 3. ! 4- ( )/CIT(A) 4. ! 4- /CIT, 5. 25 )- /DR 6. 6 7 /GF.