ITO, Central, Aurangabad, Aurangabad V. Jwalaprasad R. Agarwal, Jalgaon

ITA 139/PUN/2011

• Counselvise Citation: 13924514 RSA 2011
• Duration Of Justice: 2 year(s) 11 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2014
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 28-01-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 02-02-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: M MANI; DR JAYANT M RANADE
• Assessee Lawyers: MK SINGH
• Keywords: Unexplained cash credit; Unexplained expenditure; Search and seizure; Document seized; Documents seized
• Section: 69C; 6

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 NOS.138 & 139/PN/2011 (A.YS.2001-02 & 2003-04) ITO (CENTRAL), AURANGABAD APPELLANT VS. JWALAPRASAD R. AGARWAL 53, JMP MARKET, JALGAON RESPONDENT APPELLANT BY : SHRI M. MAN I AND DR. JAYANT M. RANADE RESPONDENT BY : SHRI M.K. SINGH DATE OF HEARING : 28.01.2014 DATE OF ORDER : 29.01.2014 ORDER PER SHAILENDRA KUMAR YADAV, J.M: BOTH THESE APPEALS PERTAIN TO THE SAME ASSESSEE FO R TWO ASSESSMENT YEARS ON SIMILAR ISSUES. SO THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. IN ITA NO.138/PN/2011 FOR 2001-02, THE ASSESSEE HAS FILED THE APPEAL ON THE FOLLOWING GROUNDS: 1. IN THE FACT AND CIRCUMSTANCE OF THE CASE, THE LEARN ED CIT(A), AURANGABAD ERRED IN DELETING ADDITION OF RS.10,31,0 00/- MADE ON ACCOUNT OF UNACCOUNTED MONEY UTILISED FOR PURCHASE OF AGRICULTURE LAND WHEN THE ADDITION WA S BASED ON SEIZED DOCUMENTS SUCH AS COPY OF SALE DEED AND S AUDA CHITTI. 2 2. IN THE FACT AND CIRCUMSTANCE OF THE CASE, THE LEARN ED CIT(A), AURANGABAD ERRED IN DELETING ADDITION OF RS.2,73,55 7/- MADE ON ACCOUNT OF UNEXPLAINED EXPENDITURE. THE CIT(A) H AS NOT APPRECIATED THE FACTS THAT ON VOUCHERS, NAMES OF SUNDERPURIYA FOOD PVT. LTD. NOT APPEARED AND DATE O F VOUCHERS AND DATE OF ENTRY MADE IN CONSTRUCTION LED GER ACCOUNT OF COMPANY NOT TALLY. 3. APPELLANT CRAVES, LEAVE OF THE HON'BLE COURT TO ADD , AMEND/ALTER OR DELETE ANY OF THE AFORESAID GROUND H EREIN IF DIRECTED SO. 4. ANY OTHER GROUND THAT MAY BE URGED AT THE TIME OF H EARING. 3. THE ASSESSEE IS AN INDIVIDUAL ENGAGED IN THE BUS INESS OF TRADING OF AATA, MAIDA, ETC. A SEARCH AND SEIZURE ACTION U/S.132 WAS CONDUCTED ON AGRAWAL GROUP OF CASES OF JALGAON AND AURANGABAD ON 18.10.2005. THE ASSESSING OFFICER HAS MADE ADDITIO N OF 10,31,000/- ON ACCOUNT OF UNEXPLAINED PAYMENT FOR P URCHASE OF AGRICULTURAL LAND. DURING THE COURSE OF SEARCH A S OUDA CHITHI DATED 11.05.2006 WAS FOUND AND SEIZED. AS PER THE SAID S OUDA CHITHI THE ASSESSEE HAS AGREED TO PURCHASE AGRICULTURAL LAND A DMEASURING 4.8 ACRES SITUATED AT MAUJE KUSUMBE KHURD AT G.NO.159 F OR CONSIDERATION OF 12,81,000/- @ 3,05,000/- PER ACRE. AS PER THE SAID SOUDA CHITHI, THE ASSESSEE HAS PAID 51,000/- AS ADVANCE AND BALANCE PAYMENT OF 12,30,000/- WAS TO BE PAID AT THE TIME OF EXECUTION OF SALE DEED. THE SALE DEED IN RESPECT O F THE SAID LAND WAS EXECUTED ON 07.06.2006 AND PURCHASE CONSIDERATION H AS BEEN MENTIONED AT 2,50,000/-. THE ASSESSING OFFICER HAS HELD THAT T HE ASSESSEE HAS PAID THE CONSIDERATION OF 10,31,000/- ( 12,81,000 - 2,50,000) I.E. DIFFERENCE BETWEEN THE AGREED CONSID ERATION AS PER SAUDA CHITHI AND CONSIDERATION AS PER SALE DEED, AS ON MONEY, OUT OF UNDISCLOSED INCOME. THE ASSESSING OFFICER HAS MADE THE ADDITION OF 10,31,000/- STATING IN THE ASSESSMENT ORDER AS UND ER: 'THUS CONTENTION PUT FORTH BY THE ASSESSEE HAS BEEN CONSIDERED, HOWEVER THE SAME IS NOT ACCEPTABLE, BEC AUSE AS PER SAUDA CHITHI EXECUTED ON 11/5/2000, THE ASSESSEE HA S INVESTIGATED ALL THE DOCUMENTS SUCH AS 7/12, SHET S ARA ETC, THE ASSESSEE HAS ALSO PHYSICALLY VISITED THE SAID AGRIC ULTURAL LAND 3 VERIFIED THE MARKED BOUNDARIES. THIS ACT OF THE ASS ESSEE INDICATES THAT THE ASSESSEE WAS VERY CAUTIOUS BEFOR E EXECUTING THE DEAL. THE ASSESSEE HAS INVESTIGATED ALL THE ASP ECTS BEFORE MAKING THE DEAL FINAL, WHICH INDICATES THAT THE ASS ESSEE WAS FULLY AWARE ABOUT THE FACTUAL SITUATION OF THE LAND . FURTHER THE SAUDA CHITHI WAS EXECUTED ON 7/6/2000 AND THE SALE DEED WAS EXECUTED WITHIN A SPAN OF 28 DAYS, WHICH SHOWS THAT THE ASSESSEE WAS VERY MUCH INTERESTED IN ACQUIRING THE SAID LAND. HAD THE ASSESSEE INTENDED TO CANCEL THE DEAL OR COU LD HAVE CANCELLED THE DEAL BY FORFEITING THE AMOUNT OF ADVA NCE GIVEN TO THE LADY BUT INSTEAD OF CANCELING THE DEAL THE ASSE SSEE HAS FINALIZED DEAL WITHIN A SPAN OF 28 DAYS. FURTHER, A S PER SAUDA CHITHI, ONE OF THE CONDITION WAS THAT IF ANY OF THE PARTY VIOLATES THE CONDITIONS LAID DOWN IN SAUDA CHITHI, HE/SHE WI LL BE RESPONSIBLE TO PAY THE DAMAGES. FURTHER ASSESSEE IS ALSO PARTNER IN SOME OF THE BUSINESS CONCERNS WHICH ARE ENGAGED IN PLOTTING BUSINESS. THUS, IT IS CLEAR THAT ASSESSEE WAS KNOWING EVERY MINUTE DETAILS OF TRANSACTIONS CARRIED OUT BY HIM. THE EVIDENCES AVAILABLE FOR PURCHASING THE AFORE MENTIO NING LAND. HENCE AN AMOUNT OF RS. 10,31,000/- IS ADDED TO THE INCOME OF THE ASSESSEE. PENALTY PROCEEDINGS U/S. 271(L)(C) AR E INITIATED SEPARATELY.' 3.1 THE MATTER WAS CARRIED BEFORE THE FIRST APPELLA TE AUTHORITY WHO HAS GRANTED THE RELIEF TO THE ASSESSEE. THE LEARNE D DEPARTMENTAL REPRESENTATIVE HAS SUBMITTED THAT THE CIT(A) WAS NO T JUSTIFIED IN DELETING THE ADDITION OF 10,31,000/- ON ACCOUNT OF UNACCOUNTED MONEY UTILIZED FOR PURCHASE OF AGRICULTURAL LAND WH EN ADDITION WAS BASED ON SEIZED DOCUMENTS SUCH AS COPY OF SALE DEED AND SOUDA CHITHI, SO, THE ORDER OF CIT(A) BE SET ASIDE AND TH AT OF THE ASSESSING OFFICER BE RESTORED. ON THE OTHER HAND, THE LEARNE D AUTHORIZED REPRESENTATIVE HAS SUPPORTED THE ORDER OF CIT(A) ON THE ISSUE. 3.2 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND M ATERIAL ON RECORD, WE FIND THAT ACCORDING TO THE ASSESSING OFF ICER, THE CONSIDERATION FOR PURCHASE OF LAND BY THE ASSESSEE WAS AGREED FOR AS PER SOUDA CHITHI DATED 11.05.2006 WAS 12,81,000/- AND AS PER THE SAID AGREEMENT, ADVANCE OF 51,000/- WAS PAID TO THE SELLER. THE REGISTERED SALE DEED OF THE LAND HAS BEEN ENTERED I NTO ON 07.06.2006 AND THE CONSIDERATION FOR PURCHASE OF THE LAND BY T HE ASSESSEE HAS BEEN MENTIONED AT 2,50,000/-. THE REASON FOR REDUCTION IN 4 CONSIDERATION FOR PURCHASE OF THE SAID LAND AS PER REGISTERED SALE DEED COMPARED TO AGREEMENT TO SALE BASED ON CIRCUMS TANCES OF THE CASE. THERE IS NO EVIDENCE AVAILABLE ON RECORD THA T THE ASSESSEE HAS PAID CONSIDERATION OF 10,31,000/- IN ADDITION TO THE CONSIDERATION PAID AS PER REGISTERED SALE DEED. IN THE ABSENCE O F ANY CONCRETE FINDING OR CORROBORATIVE EVIDENCE ON BEHALF OF THE ASSESSING OFFICER FOR GETTING AN AMOUNT OF 10,31,000/- OVER AND ABOVE OF CONSIDERATION ON THE SALE DEED, ADDITIONS ARE NOT J USTIFIED. THIS VIEW IS FORTIFIED BY THE DECISION OF HON'BLE KERLA HIGH COURT IN THE CASE OF CIT VS. K.C. AGNES (2003) 262 ITR 354 (KER). IN VI EW OF ABOVE DISCUSSION, WE ARE NOT INCLINED TO INTERFERE IN THE FINDINGS OF CIT(A) WHO HAS DELETED THE ADDITION OF 10,31,000/- MADE ON ACCOUNT OF UNACCOUNTED MONEY UTILIZED FOR PURCHASE OF AGRICULT URAL LAND. WE UPHOLD THE SAME. 4. NEXT ISSUE IS WITH REGARD TO ADDITION OF 2,73,557/- MADE ON ACCOUNT OF UNEXPLAINED EXPENDITURE. THE ASSESSING OFFICER HAS MADE ADDITION OF 2,73,557/- AS UNEXPLAINED EXPENDITURE U/S.69C OF THE I.T. ACT. DURING THE COURSE OF SEARCH ACTIO N ON RESIDENTIAL PREMISES OF THE ASSESSEE, VOUCHERS CONTAINING DATE WISE EXPENDITURE OF 2,73,557/- AND 1,04,785/- INCURRED WERE FOUND FOR A.YS. 2001-02 AND 2002-03 AT ANNEXURE A-10 & A-12, PARTY NO.3. THE STAND OF THE ASSESSEE BEFORE THE ASSESSING OFFICER AS WELL AS BEFORE THE CIT(A) THAT THE SAID VOUCHERS WERE PERTAINING T O PAYMENTS MADE FOR CONSTRUCTION AT SUNDERPURIA FOODS PVT. LTD. AND THE EXPENDITURE WAS APPEARING IN THE BOOKS OF SUNDERPURIA FOODS PVT . LTD. THE ASSESSING OFFICER HAS REJECTED THE CONTENTION OF TH E ASSESSEE BY OBSERVING THAT THE DATES AND DETAILS WRITTEN ON THE VOUCHERS AND THE DATES AND DETAILS OF EXPENDITURE MENTIONED IN THE B OOKS OF SUNDERPURIA FOODS PVT. LTD. WERE NOT MATCHING. 4.1 THE MATTER WAS CARRIED BEFORE THE FIRST APPELLA TE AUTHORITY, WHEREIN THE CIT(A) HAS DELETED THE ADDITION OF 2,73,557/- MADE ON ACCOUNT OF UNEXPLAINED EXPENDITURE. CIT(A) HAS OBS ERVED THAT THE 5 CONSTRUCTION EXPENSES IN RESPECT OF WHICH VOUCHERS WERE FOUND HAVE BEEN DEBITED BY THE ASSESSEE IN THE BOOKS OF ACCOUN T OF SUNDERPURIA FOODS PVT. LTD. THE VARIATION IN DATES OF VOUCHERS AND RECORDING OF EXPENDITURE IN THE BOOKS OF ACCOUNT WAS NOT FOUND I N VIEW OF THE FACT CLAIMED BY THE ASSESSEE THAT SUFFICIENT CASH WAS AV AILABLE WITH THE SAID COMPANY FOR INCURRING THE EXPENDITURE. THE QU ANTUM OF CONSTRUCTION EXPENDITURE DEBITED IN AUDITED BOOKS O F SAID COMPANY WAS MORE THAN THE QUANTUM OF EXPENDITURE FOUND NOTE D IN THE VOUCHERS. 4.2 IN VIEW OF ABOVE, THE ASSESSING OFFICER WAS NOT JUSTIFIED IN TREATING THE CONSTRUCTION EXPENSES OF 2,37,557/- AS UNEXPLAINED EXPENDITURE AND ADDITION THEREOF UNDER THE PROVISIO NS OF SECTION 69C OF ACT AND THE SAME WAS RIGHTLY DELETED BY THE CIT( A). THIS REASONED FACTUAL FINDING OF CIT(A) NEED NO INTERFERENCE FROM OUR SIDE. WE UPHOLD THE SAME. AS A RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. 5. IN ITA NO.139/PN/2011, THE REVENUE HAS FILED THE APPEAL ON THE FOLLOWING GROUNDS: 1. IN THE FACT AND CIRCUMSTANCE OF THE CASE, THE LEARN ED CIT(A), AURANGABAD ERRED IN DELETING ADDITION OF RS.6,85,00 0/- MADE ON ACCOUNT OF UNEXPLAINED TRANSACTION WHEN THE ADDI TION WAS BASED ON SEIZED DOCUMENTS AND NOT EXPLAINED BY THE ASSESSEE WITH DOCUMENTARY EVIDENCE. 2. IN THE FACT AND CIRCUMSTANCE OF THE CASE, THE LEARN ED CIT(A), AURANGABAD ERRED IN DELETING ADDITION OF RS.5,00,00 0/- MADE ON ACCOUNT OF UNEXPLAINED CREDITS WHICH IS NOT REFL ECTED IN REGULAR BOOKS OF THE ASSESSEE. 3. APPELLANT CRAVES, LEAVE OF THE HON'BLE COURT TO ADD , AMEND/ALTER OR DELETE ANY OF THE AFORESAID GROUND H EREIN IF DIRECTED SO. 4. ANY OTHER GROUND THAT MAY BE URGED AT THE TIME OF H EARING. 6. THE ASSESSING OFFICER HAS MADE ADDITION OF 6,85,000/- ON ACCOUNT OF UNDISCLOSED INCOME DEPOSITED WITH DAUGHT ER-IN-LAW SAU. RAJKUMARIDEVI N. AGRAWAL. DURING THE COURSE OF SEA RCH PROCEEDINGS 6 U/S.132 A DIARY CONTAINING NOTINGS OF TRANSACTIONS OF MONEY RECEIVED FROM AND REFUNDED TO THE MEMBERS OF AGRAWAL FAMILY WAS FOUND WITH PARTY NO.3, SR.NO.L. THE SAID DIARY WAS IN THE HAND WRITING OF DAUGHTER-IN-LAW OF THE ASSESSEE. THE ASSESSING OFF ICER HAS HELD THAT THE AMOUNT OF 6,85,000/- FOUND NOTED IN THE DIARY IN THE NAME OF THE ASSESSEE, WHO IS MENTIONED AS 'CHACHAJI' IN THE SAID DIARY IS UNDISCLOSED DEPOSIT OF MONEY WITH THE DAUGHTER-IN-L AW BY THE ASSESSEE. THE ASSESSING OFFICER HAS MADE THE ADDIT ION INTER ALIA STATING IN THE ASSESSMENT ORDER AS UNDER: 'I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE ASSESSEE AND THE SAME IS NOT ACCEPTABLE FOR THE FOLLOWING REASON S. FIRSTLY, THE ASSESSEE HAS CONTENDED THAT THE MEMBERS OF THE FAMI LY COULD DEPOSIT AND TAKE THE CASH WHENEVER REQUIRED FROM HI S DAUGHTER IN LAW. THE NOTINGS IN THE DIARY CLEARLY SHOW THAT THE MONEY BELONGS TO THE ASSESSEE AND NOT TO HIS FAMILY MEMBE RS. THE NARRATIONS IN THE DIARY IDENTIFY THE ASSESSEE AS 'C HACHAJI' I.E. SHRI JWALAPRASADJI AGRAWAL. EVERYWHERE IN THE SEIZE D MATERIAL SHRI JWALAPRASADJI AGRAWAL IS MENTIONED AS 'CHACHAJ I'. EVERY WITHDRAWAL AND DEPOSIT IS SPECIALLY MENTIONED. FURTHER 'BADE BHAISAHAB' MEANS SH. GHANSHYAM AGRAWAL. THE ENTRIES MADE IN THE NAME OF SH. GHANS HYAM AGRAWAL, WHO IS THE SON OF THE ASSESSEE, HAVE BEEN ACCEPTED BY HIM AND SUCH ENTRIES ARE REFLECTED IN HIS CASH FLOW STATEMENT. IT, THEREFORE FOLLOWS THAT THE AMOUNTS STATED TO BE GIVEN BY SHRI JWALAPRASADJI AGRAWAL ON THE FOLLOWING DATES ARE NO THING BUT HIS INCOME/INVESTMENT, WHICH HAS NOT BEEN SATISFACT ORILY EXPLAINED BY THE ASSESSEE. THIS MONEY DEPOSITED WIT H HIS DAUGHTER IN LAW FROM TIME TO TIME REPRESENTS THE IN COME OF THE ASSESSEE FROM UNDISCLOSED SOURCES. THE DETAILS OF T HE SAME ARE AS UNDER: DATE AMOUNT 6/2/2003 1,00,000 7/2/2003 3,25,000 31/3/2003 2,85,000 THUS AN ADDITION OF RS.6,85,000/- IS MADE TO THE TO TAL INCOME OF THE ASSESSEE DURING THE YEAR.' 6.1 THE MATTER WAS CARRIED BEFORE THE FIRST APPELLA TE AUTHORITY WHEREIN, THE VARIOUS CONTENTIONS HAVE BEEN RAISED B Y THE ASSESSEE 7 AND HAVING CONSIDERED THE SAME, THE CIT(A) HAS GRAN TED RELIEF TO THE ASSESSEE WHICH HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENUE STATING THAT THE CIT(A) WAS NOT JUSTIFIED IN DELETI NG THE ADDITION OF 6,85,000/- MADE ON ACCOUNT OF UNEXPLAINED TRANSACTI ONS. THE LEARNED AUTHORIZED REPRESENTATIVE HAS SUPPORTED THE ORDER OF CIT(A). 6.2 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND M ATERIAL ON RECORD, WE FIND THAT THE DIARY IN QUESTION WAS WRIT TEN BY SAU. RAJKUMARIDEVI N. AGRAWAL I.E. THE DAUGHTER-IN-LAW O F THE ASSESSEE. THE STAND OF THE ASSESSEE HAS BEEN THAT BEING ELDES T PERSON OF THE FAMILY THE CASH BELONGING TO VARIOUS FAMILY MEMBERS AND BUSINESS CONCERNS WAS KEPT TEMPORARILY WITH HER FOR SAFE CUS TODY AND NOTINGS IN RESPECT OF THE SAME WAS MADE BY SAU. RAJKUMARIDE VI FOR MEMORY. THE SAID DIARY WAS NOT BOOKS OF ACCOUNT AS IT IS GE NERALLY UNDERSTOOD, IT IS A RECORD OF MEMORY OF MOVEMENTS. CONSIDERING THE TOTALITY OF THE FACTS AND KEEPING IN VIEW THE AVAIL ABILITY OF TOTAL CASH WITH THE FAMILY MEMBERS IN RESPECT OF BUSINESS ACTI VITIES AND ON PERSONAL ACCOUNT, THE CIT(A) HELD THAT THE ASSESSIN G OFFICER WAS NOT BROUGHT ON RECORD CORROBORATIVE EVIDENCE TO SUBSTAN TIATE THAT THE AMOUNT OF 6,85,000/- BELONGED TO THE ASSESSEE AS UNDISCLOSED INCOME BY REBUTTING THE CONTENTIONS RAISED BY THE A SSESSEE. ACCORDINGLY, THE CIT(A) DELETED THE ADDITION IN QUE STION. THIS REASONED FACTUAL FINDING OF CIT(A) NEED NO INTERFER ENCE FROM OUR SIDE, WHO HAS DIRECTED THE ASSESSING OFFICER TO DELETE TH E ADDITION IN QUESTION IN THE ABSENCE OF CORROBORATIVE EVIDENCE T O THE EFFECT. THE SAME IS UPHELD. 7. NEXT ISSUE IS WITH REGARD TO ADDITION OF 5,00,000/- AS UNDISCLOSED INCOME ON ACCOUNT OF CREDIT IN ROUGH CA SH BOOK. DURING THE COURSE OF SEARCH, THE ASSESSING OFFICER NOTICED THAT THERE WERE CREDITS AS WELL AS DEBITS IN ROUGH CASH BOOK IN THE NAME OF ASSESSEE. THE ASSESSING OFFICER HELD THAT THE ASSESSEE HAS FA ILED TO ESTABLISH THE SOURCE OF SUCH ENTRIES IN ROUGH CASH BOOK AND H ENCE HAS MADE ADHOC ADDITION OF 5,00,000/- AS UNDISCLOSED INCOME. IN THE 8 REMAND REPORT THE ASSESSING OFFICER HAS CHANGED HIS STAND AND HAS STATED THAT THE SAID ADDITION IS MERGED WITH CASH F LOW STATEMENT PREPARED BY HIM DURING REMAND PROCEEDINGS AS PER WH ICH THE NEGATIVE BALANCE IS 6,38,505/- AND 9,70,585/- IN A.Y. 2003-04 AND A.Y. 2004-05 RESPECTIVELY. THE ASSESSING OFFIC ER, THEREFORE SUBMITTED TO RESTRICT THE ADDITIONS OF 5,00,000/- AND 6,85,000/- IN A.Y. 2003-04 TO THE EXTENT OF 6,38,505/-. 7.1 THE MATTER WAS CARRIED BEFORE THE FIRST APPELLA TE AUTHORITY, WHO HAVING CONSIDERED THE SUBMISSIONS ON BEHALF OF THE ASSESSEE, HAS GRANTED RELIEF TO THE ASSESSEE AND THE SAME HAS BEE N OPPOSED ON BEHALF OF REVENUE, INTER ALIA STATED THAT THE CIT(A ) HAS ERRED IN DELETING THE ADDITION OF 5,00,000/- ON ACCOUNT OF UNEXPLAINED CREDITS WHICH WERE REFLECTED IN THE BOOKS OF ACCOUN TS OF THE ASSESSEE. SO, THE ORDER OF CIT(A) BE SET ASIDE AND THAT OF TH E ASSESSING OFFICER BE RESTORED. ON THE OTHER HAND, THE LEARNED AUTHOR IZED REPRESENTATIVE HAS SUPPORTED THE ORDER OF CIT(A). 7.2 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND M ATERIAL ON RECORD, WE FIND THAT THE ROUGH CASH FOUND IN SEARCH ACTION, CASH BOOKS OF ALL INDIVIDUALS WAS CLAIMED TO BE A COMMON AND CONSOLIDATED CASH OF ALL INDIVIDUALS AND OTHER CONC ERNS OF AGRAWAL GROUP AND KEPT FOR MEMORY. THE ISSUE ABOUT AMOUNTS CREDITED IN ROUGH BOOK WAS DECIDED BY THE CONCERNED CIT(A) IN T HE CASE OF MAHENDRA J. AGRAWAL VIDE ORDER DATED 03.07.2008 HOL DING AS UNDER: ''6.4 I HAVE CAREFULLY CONSIDERED SUBMISSIONS FILED IN DETAIL BY THE APPELLANT ON THE ADDITION ON ACCOUNT OF SO CALL ED CIRCULATING CAPITAL IN A.Y. 2000-01 AND 2001-02. THE AO'S CONTE NTION THAT ENTRIES IN THE ROUGH CASH BOOK ARE NOT FULLY REFLEC TED IN REGULAR CASH BOOK IS NOT A CORRECT STATEMENT; NOT A SINGLE ENTRY HAS BEEN POINTED OUT BY THE ASSESSING OFFICER WHICH COU LD BE TREATED AS OUTSIDE REGULAR BOOKS. IT IS ALSO NOT CO RRECT TO HOLD THAT PURCHASES ARE DEFERRED TO SUIT THE AVAILABILIT Y OF CASH. NO INSTANCE HAS BEEN POINTED OUT. THE ENTRIES IN THE C ASH BOOK SHOWING RS.7,15,000/- IS NOT A CLEAR CUT EVIDENCE O F ANY EXTRA CASH AS THE SAME IS FULLY ACCOUNTED. AS MENTIONED E ARLIER NO ENTRY IN ROUGH CASH TOOK HAS BEEN OMITTED TO BE ENT ERED IN THE 9 REGULAR CASH BOOK. ROUGH CASH BOOK IS NOT A REGULAR CASH BOOK IN THAT SENSE. IT IS A MEMORANDUM FOR MEMORY TO BE ENTERED IN THE REGULAR CASH BOOK. SO LONG AS NO ENTRY IN THE ' SO CALLED ROUGH CASH BOOK HAS BEEN OMITTED IN THE REGULAR CAS H BOOK NO ADDITION CAN BE MADE. THE CONTENTION OF THE ASSESSI NG OFFICER IS NOT PASSED ON ANY FACTS AS PROVED. THE OTHER FACTOR IS THAT THE REGULAR CASH BOOK FOR THE A.Y. 2001-02 SHOWS AN OPE NING CASH BALANCE OF RS. 7,5 3,78 2/-. IN THE CASE OF SUNDERP URIA FLOUR AND ROLLER MILLS PVT. LTD. AND RS. 1,02,384/- IN TH E CASE OF SUNDERPURIA BROS., ANOTHER CONCERN, WHICH ARE MORE THAN THE CASH AS PER THE ALLEGED ROUGH CASH BOOK. THERE CAN THEREFORE BE NO ADDITION ON THAT ACCOUNT IN ANY CASE. FURTHER TH E ASSESSEE HAS SURRENDERED RS.5,00,000/- IN THE CASE OF SUNDER PURIA FLOUR AND ROLLER MILLS PVT. LTD. WHICH TAKES CARE O F EVERY THING AS THE ALLEGED ROUGH CASH BOOK IS COMBINED CASH BOO K OF ALL CONCERNS. IN VIEW OF THIS POSITION, ADDITION OF RS. 5,60,000/ - AND RS. 4,50,000/- ON SUBSTANTIVE BASIS, AND RS. 14,60,000/ - RS. 1,05,000/- ON PROTECTIVE BASIS IN A.YRS. N 2000-01 AND 2001-02 RESPECTIVELY IS ORDERED TO BE DELETED.' 8. THE ABOVE DECISION WAS FOUND TO BE APPLICABLE TO THE FACTS OF THE CASE OF THE ASSESSEE WITH EQUAL FORCE AS THE IS SUE INVOLVED AND THE FACTS OF THE CASE OF THE ASSESSEE WERE SIMILAR TO THE FACTS OF THE CASE OF MAHENDRA J. AGRAWAL. SO, THE CIT(A) GRANTE D RELIEF TO THE ASSESSEE. AT THE TIME OF HEARING BEFORE, NEITHER O F THE PARTY HAS BROUGHT TO OUR KNOWLEDGE WITH REGARD TO THE FINALIT Y OF MAHENDRA J. AGRAWAL CASE WHEREIN, THE CIT(A) HAS DELETED THE SI MILAR ADDITIONS WHICH HAS BEEN FOLLOWED WHILE GIVING RELIEF BY THE CIT(A). SO, IN THE INTEREST OF JUSTICE, WE RESTORE THE ISSUE TO THE AS SESSING OFFICER WITH A DIRECTION TO DECIDE THE SAME AS PER FINAL OUTCOME OF SIMILAR ISSUE IN MAHENDRA J. AGRAWAL (SUPRA) AS DISCUSSED ABOVE. OF COURSE, THE ASSESSING OFFICER IS DIRECTED TO DECIDE THE SAME AF TER PROVIDING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. AS A RESUL T, THE APPEAL OF THE REVENUE IS PARTLY ALLOWED. 9. IN THE RESULT, THE APPEAL FILED BY REVENUE VIDE ITA NO.138/PN/2011 IS DISMISSED AND THE ANOTHER APPEAL FILED BY THE REVENUE VIDE ITA NO.139/PN/2011 IS PARTLY ALLOWED. 10 PRONOUNCED IN THE OPEN COURT ON THIS THE 29 TH DAY OF JANUARY, 2014. SD/- SD/- (G.S. PANNU) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 29 TH JANUARY, 2014 GCVSR COPY TO:- 1. DEPARTMENT 2. ASSESSEE 3. THE CIT(A), AURANGABAD 4. THE CIT, AURANGABAD 5. THE DR, A BENCH, I.T.A.T., PUNE. 6. GUARD FILE BY ORDER //TRUE COPY// SENIOR PRIVATE SECRETARY, I.T.A.T., PUNE