THE ACIT, 3(1), Indore V. SHRI AKASH VIJAYVARGIYA, Indore

ITA 15/IND/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5786 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 30-05-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 08-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R P MOURYA
• Assessee Lawyers: SHRI; S N AGRAWAL
• Keywords: Unexplained expenditure; Gift; Opportunity of being heard; Source of fund; Additional evidence
• Section: 69C

Judgement Text

AKASH VIJAYVARGIYA ITA NO.15/IND/2015 & CO 16/IND/2015 1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JM & SHRI N.S. SAINI, AM ITA NO.15/IND/2015 A.Y.2011-12 ASSTT.COMMISSIONER OF INCOMETAX 3(1) INDORE ::: APPELLANT VS SHRI AKASH VIJAYVARGIYA INDORE PAN AEBPV 04458B ::: RESPONDENT CO NO. 16/IND/2015 ARISING OUT OF ITA NO. 15/IND/2015 SHRI AKASH VIJAYVARGIYA INDORE ::: APPELLANT VS ASSTT.COMMISSIONER OF INCOMETAX 3(1) INDORE ::: RESPONDENT REVENUE BY SHRI R.P. MOURYA ASSESSEE BY SHRI S.N. AGRAWAL & SHRI PANKAJ MOGRA DATE OF HEARING 5.7.2016 DATE OF PRONOUNCEMENT 6 . 9 . 2016 AKASH VIJAYVARGIYA ITA NO.15/IND/2015 & CO 16/IND/2015 2 O R D E R THE REVENUE HAS FILED THE APPEAL WHEREAS THE ASSESSEE HAS FILED THE CROSS OBJECTION AGAINST THE ORDER OF THE LEARNED CIT(A)-I, INDORE, DATED 29.9.2014. 2. THE SOLE GRIEVANCE OF THE REVENUE IS THAT THE LEARN ED CIT(A) HAS GROSSLY ERRED IN ALLOWING RELIEF OF RS.1,02,50,000/- AS AGAINST THE ADDITION OF RS.1,31,16,983/- MADE BY THE ASSESSING OFFICER ON ACC OUNT OF UNEXPLAINED EXPENDITURE U/S 69C OF THE INCOME TAX ACT AS ALSO IN ADMITTING AN ADDITIONAL EVIDENCE WITHOUT AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSING OFFICER. 2. THE SHORT FACTS OF THE CASE ARE THAT DURING THE YEAR UNDER CONSIDERATION THE ASSESSEES MARRIAGE TOOK PLACE ON 21.1.2011 AT LABH GANGA GARDEN. THE ASSESSEE WAS ASKED TO SUBMIT CONSOLIDATED FILE OF MARRIAGE EXPENSES. THE AKASH VIJAYVARGIYA ITA NO.15/IND/2015 & CO 16/IND/2015 3 ASSESSEE SUBMITTED ALL THE DETAILS OF MARRIAGE EXPENSES. THE BILLS ARE PLACED ON RECORD. THE ASSESSEE HAS SHOWN FOOD AND CATERING EXPENSES ON HIS MARRIAGE FUNCTION AT RS.11,33,070/-, DECORATION AND GARDEN EXPENSES RS.3,75,000/-, JEWELLERY EXPENSES RS.6,65,000/-, LO DGING EXPENSES RS.90,000/-, AND OTHER MISCELLANEOUS EXPENSE S RS. 4,73,627/-. THE ASSESSING OFFICER FOUND THAT THR EE FUNCTIONS WERE CARRIED OUT DURING THE MARRIAGE CEREMON Y, AROUND 40,000 PERSONS PARTICIPATED IN THE FIRST FUNCTI ON AND 15,000 PERSONS PARTICIPATED IN SECOND FUNCTION AND 2000 PERSONS PARTICIPATED IN THE THIRD FUNCTION. THER EFORE, THE ASSESSING OFFICER CALCULATED 57,000 PERSONS AND PE R PLATE COST RS. 250/-, THEREFORE, TOTAL EXPENDITURE CO MES TO RS.1,42,050/-. THE ASSESSEE HAS SHOWN FOOD AND CATERIN G EXPENSES AT RS.11,33,107/-. THUS, HE MADE THE ADDITION OF RS.1,31,16,983/-. THE MATTER WAS CARRIED IN APPEAL AND AKASH VIJAYVARGIYA ITA NO.15/IND/2015 & CO 16/IND/2015 4 THE LEARNED CIT(A) PARTLY ALLOWED THE APPEAL BY OBSERVI NG AS UNDER :- 11. IN VIEW OF THE AFORESAID FACTS, NOW I DISCUSS THE SECOND OBJECTION RAISED BY THE APPELLANT ON SUCH ESTIMATION BY A.O. OF NUMBER OF PERSONS ATTENDING T HE MARRIAGE FUNCTION. ESTIMATION SHOULD ALWAYS BY BASE D ON SOME EVIDENCE AND IT COULD NOT BE BASED ON ASSUMPTION/PRESUMPTIONS AS HELD IN CASE OF SURESH CHANDRA KOTHARI (ITAT, JODHPUR) IN ITA NO. 807(JODH ) OF 2007 INORDER DATED 30.07.2008, IN ISSUE RELATED TO ESTIMATION OF MARRIAGE EXPENSES. IN PRESENT CASE, T HE A.O. HAD NO BASIS EITHER TO ADOPT THE FIGURE OF 57, 000 PERSONS ATTENDING THE MARRIAGE AS NOTED BY HIM IN ORDER NOR SH. VAIBHAV PATNI GAVE ANY BASIS TO STATE THAT SUCH PERSONS ATTENDING MARRIAGE FUNCTIONS WERE ONLY 7,000 TO 10,000. HOWEVER, SH. NITIN PAREKH CA IN H IS AFFIDAVIT HAS POINTED OUT THAT TOTAL 10,031 INVITAT ION AKASH VIJAYVARGIYA ITA NO.15/IND/2015 & CO 16/IND/2015 5 CARDS WERE PRINTED FOR ALL THE FUNCTIONS OF THIS MA RRIAGE AND ON AN AVERAGE 1 OR 2 PERSONS MUST HAVE ATTENDED THE MARRIAGE CEREMONY ON ACCOUNT OF EACH CARD, MOREOVER SOME CARDS WOULD NOT HAVE BEEN DISTRIBUTED ALSO. BILLS FOR PRINTING OF SUCH CARDS WERE DULY FI LED BEFORE A.O. THERE WERE 4 BILLS FOR PRINTING OF TOTA L 10,031 INVITATION CARDS COVERING ALL THREE FUNCTION S. ON A FAIR ESTIMATION, IF WE REDUCE 531 CARDS AS EITHER NOT BEING DISTRIBUTED, OR NOT BEING ATTENDED BY ANYONE, WE ARE LEFT WITH A TOTAL OF 9,500 INVITATION CARDS WHI CH WERE DISTRIBUTED. ON SUCH 9,500 CARDS NEITHER 57,000 PERSONS ESTIMATED BY A.O. NOR 7,000 TO 10,000 PERSO NS GIVEN BY SH. VAIBHAV PATNI AS NUMBER OF PERSONS ATTENDING MARRIAGE CEREMONY COULD BE HELD CORRECT. ON EACH CARD IF WE ASSUME THAT FROM 1 TO 3 PERSONS ATTENDED THE MARRIAGE FUNCTION, IT WOULD BE CORRECT TO ESTIMATE THAT TWO PERSONS ATTENDED ON EACH CARD ON AN AKASH VIJAYVARGIYA ITA NO.15/IND/2015 & CO 16/IND/2015 6 AVERAGE. THAT GIVES A TOTAL OF 19,000 PERSONS. IN T HIS WE CAN FURTHER ADD ANOTHER 1,000 PERSONS TAKING CARE O F THE FACT THAT ON FEW CARDS NUMBER OF PERSONS ATTEND ING COULD BY 4 TO 6 ALSO. THUS TOTAL 20,000 PERSONS OR SO ATTENDED THE THREE MARRIAGE FUNCTIONS. SINCE THE ESTIMATE OF A.O. OF 57,000 PERSONS ATTENDING SUCH FUNCTIONS, IS NOT BASED ON ANY MATERIAL, EXCEPT SIGNATURE OF AUTHORISED REPRESENTATIVE ON ORDER SHE ET AND SUCH AUTHORISED REPRESENTATIVE HAS DENIED THROU GH AN AFFIDAVIT OF PROVIDING ANY SUCH ESTIMATE, HENCE THIS ESTIMATE OF 57,000 PERSONS CANNOT BE SUSTAINED, AS THE SAME IS NOT SUPPORTED BY ANY BASIS OR EVIDENCE. HOWEVER, THAT ESTIMATION IS REPLACED BY AN ESTIMATE OF 20,000 PERSONS ATTENDING THE THREE MARRIAGE FUNCTIO NS, BASED ON THE NUMBER OF MARRIAGE CARDS GOT PRINTED, WHICH COULD WORK AS A SOUND BASIS FOR SUCH ESTIMATI ON. AKASH VIJAYVARGIYA ITA NO.15/IND/2015 & CO 16/IND/2015 7 12. HENCE THE EXPENSES ON FOOD & CATERING IS ESTIMATED AT RS.40,00,000/- (20,000 PERSONS X RS.200/- PER PLATE). SINCE APPELLANT HAS SHOWN AN AMOUNT OF RS.11,33,017/- AS FOOD & CATERING EXPENSE S, HENCE AN ADDITION OFRS.28,66,983/- (RS.40,00,000 RS.11,33,017/-) IS CONFIRMED AS UNEXPLAINED MARRIAG E EXPENSES TOWARDS FOOD & CATERING IN MARRIAGE CEREMONY OF APPELLANT AND ADD OF RS.28,66,983/- IS CONFIRMED U/S 69C OF THE IT ACT. APPELLANT GETS A R ELIEF OF RS.1,02,50,000/-. AS A RESULT GROUND. NO. I & II OF APPEAL ARE PARTLY ALLOWED. 3. AGAINST THE ABOVE FINDINGS OF THE LEARNED CIT(A), T HE REVENUE IS IN APPEAL AND THE ASSESSEE HAS FILED THE CROS S OBJECTION. 4. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THE FOLLOWING WRITTEN SUBMISSIONS :- AKASH VIJAYVARGIYA ITA NO.15/IND/2015 & CO 16/IND/2015 8 1] THE ASSESSEE HAD FILED HIS RETURN OF TOTAL INCOM E ON 16-09-2011 DECLARING TOTAL INCOME AT RS 1637760/-. 2] THAT IN THE YEAR UNDER CONSIDERATION, MARRIAGE OF THE ASSESSEE TAKEN PLACE ON 21-01-2011 AT LABH GANGA GARDEN. 3] THE ASSESSEE HAS CLAIMED FOLLOWING EXPENSES AS I NCURRED IN HIS MARRIAGE AND ALSO EXPLAINED THE SOURCE OF MARRIAGE EXPENSES AS INCURRED BY THE ASSESSEE:- SOURCE OF FUND AMOUNT HEAD OF MARRIAGE EXP AMOUNT SHRI KAILASH VIJAYYARGIYA 10,00,000 FOOD & CATERING EXP 11,33,017 SMT MANJU VIJAYVARGIYA 5,00,000 JEWELLERY 6,65,000 SMT ASHA VIJAYVARGIYA 1,00,000 DECORATION & GARDEN 3,75,000 SMT AYODHYA BAI VIJAYVARGIYA 4,00,000 LODGING EXPENSES 90,0000 AKASH VIJAYVARGIYA 9,00,000 ENTERTAINMENT EXP 77,500 MARRIAGE EXP MISC 4,73,627 OTHER EXPENSES 85,856 29,00,000 29,00,000 4] THE ASSESSING OFFICER HAS NOT DISPUTED ANY OTHER HEAD OF EXPENSES EXCEPT THE AMOUNT OF RS 11,33,017/- WAS INCURRED BY THE ASSESSEE ON ACCOUNT OF FOOD & CATERING EXPENSES. 5.1.1] THE ASSESSING OFFICER WHILE PASSING THE ASSE SSMENT ORDER ESTIMATED THE NUMBER OF GUEST AT AROUND 57000 PERSO NS ON THE BASIS OF ORDER SHEET ENTRY WHICH WAS ALSO SIGNED BY AR OF THE ASSESSEE. HOWEVER, PRACTICALLY IT IS JUST TO IMPOSSI BLE TO CALCULATED THE CORRECT NUMBER. AS TO HOW THE ASSESSING OFFICER REACHED TO A CONCLUSION OF 57000 PERSONS ATTENDED MARRIAGE OF TH E ASSESSEE AND BY APPLYING THE RATE OF RS 250/- PER PLACE TOTAL AM OUNT OF FOODS & CATERING EXPENSES WAS CALCULATED TO RS 1,42,50,000/ - AND AFTER ALLOWING THE CREDIT OF ACTUAL EXPENSES AS INCURRED BY THE ASSESSEE OF AKASH VIJAYVARGIYA ITA NO.15/IND/2015 & CO 16/IND/2015 9 RS 1133017/-, BALANCE AMOUNT OF RS 13116983/- WAS A DDED TO THE INCOME OF THE APPELLANT. 5.1.2] THAT ORDER SHEET ENTRY WAS NOTED ON 08-01-20 14 BUT MARRIAGE OF THE ASSESSEE WAS HELD ON 21-01-2011 I.E . PRIOR TO THREE YEARS. THUS, HUMANLY IT IS NOT POSSIBLE TO REMEMBER THE EXACT NUMBER OF THE GUEST ATTENDING THE MARRIAGE. 2.1] THE LD CIT[A] ON THE BASIS OF AFFIDAVIT OBTAIN ED FROM THE AR REACHED TO A CONCLUSION THAT SINCE 9500 VISITING CA RD WAS DISTRIBUTED AND THEREFORE AT LEAST 19000 PERSONS MUST ATTEND AN D 1000 ADDITION PERSONS FOR TAKING CARE OF THESE PERSONS A ND ACCORDINGLY TOTAL NUMBER WAS CONSIDERED AT 20000 PERSON AND BY APPLYING THE RATE PER PLATE OF RS 200/- CALCULATED THE AMOUNT O F TOTAL EXPENSES AS INCURRED FOR FOOD & CATERING WAS OF RS 40,00,000 /- AND AFTER ALLOWING CREDIT OF EXPENSES ACTUALLY INCURRED BY TH E ASSESSEE WAS OF RS 11,33,017/- BALANCE AMOUNT OF RS 28,66,983/- WAS MAINTAINED IN THE CASE OF THE ASSESSEE. 2.2] SUMMARY OF NUMBER OF GUEST AS ESTIMATED BY THE ASSESSING OFFICER AND ALSO BY THE LD CIT[A] AND THE RATE PER PLATE AS CONSIDERED WHILE CALCULATING THE FOODS & CATERING EXPENSES IS AS UNDER:- S.NO PARTICULARS ESTIMATED BY THE ASSSESSING OFFICER ESTIMATED BY THE LD CIT[A] 1 NUMBER OF GUEST AND FAMILY MEMBERS ATTENDED THE MARRIAGE 57,000 20,000 AKASH VIJAYVARGIYA ITA NO.15/IND/2015 & CO 16/IND/2015 10 2 RATE PER PLATE 250 200 3 TOTAL FOOD & CATERING EXPENSES 1,42,50,000 40,00,000 LESS EXPENSES AS SHOWN BY THE ASSESSEE 11,33,017 11,33,017 NET ADDITION MADE AND MAINTAINED 1,31,16,983 28,66,983 5.2] THE ASSESSING OFFICER OBTAINED QUOTATION OF VARIOUS CATERERS IN THE YEAR 2014 AND THAT TOO FOR LIMITED PERSON OF 300 TO 400 PERSONS EXCEPT ONE. THE ASSESSING OFFICER TAKES AVERAGE OF QUOTATI ON AND ALLOWED 20% REDUCTION ON ACCOUNT OF INFLATION COST AND ACCORDIN GLY APPLIED RATE OF RS 250/- PER PLATE. HOWEVER, THE LD CIT[A] ALLOW FURTH ER CREDIT OF RS 50/- BY STATING THAT WHEN THE ASSESSEE ENGAGED IN HOUSE CAT ER COST PER PLATE REDUCED FURTHER BY MARGIN OF RS 50/- AND THEREFORE APPLIED RATE OF RS 200/-PER PLATE. 6] THE ASSESSING OFFICER WAS GROSSLY ERRED IN ASSUM ING THAT THE ASSESSEE HAS GIVEN CONTRACTS FOR CATERING MORE SO WHEN ENTIR E BILLS OF MATERIAL PURCHASED WAS PROVIDED BY THE ASSESSEE DURING THE C OURSE OF ASSESSMENT PROCEEDING AND ALSO BEFORE THE LD CIT[A]. THE ASSES SEE HAS ALSO PAID AMOUNT TO THE CATERS FOR PREPARATION AND SERVING THE FOODS TO THE GUEST. THAT WHEN THE ASSESSING OFFICER WAS NOT PINPOINT THE ADDITION EXPENSES INCURRED OTHER THAN WHAT WAS SHOWN BY THE ASSESSEE. THE ASSESSING OFFICER WAS NOT JUSTIFIED IN ESTIMATING THE FOODS & CATERING EXPENSES. 7.1] THAT DURING THE COURSE OF ASSESSMENT PROCEEDIN G LIST OF ENVELOPE RECEIVED BY THE ASSESSEE WAS PROVIDED. ON THE BASIS OF THAT LIST ONLY 3763 ENVELOPE WAS RECEIVED BY THE ASSESSEE. AKASH VIJAYVARGIYA ITA NO.15/IND/2015 & CO 16/IND/2015 11 7.2] THAT IN FAMILY FUNCTION PERSON CAN VISIT WITH THE FAMILY OR WITH SPOUSE BUT IN OTHER INVITATION GENERALLY THE PERSON ALONE CAN ATTEND THE FUNCTION JUST TO MARK HIS PRESENT AND OFFER HIS RESPECT TO TH AT FAMILY. 7.3] THE LD CIT[A] ON THE BASIS OF INVITATION CARD REACHED TO A CONCLUSION THAT EVERY PERSON TO WHOM CARD WAS GIVEN MUST ATTEND THE FUNCTION WITH THE SPOUSE. THE SAID FINDING IS NOT FOUND SOUND. THAT T HOUGH THE CARD WAS ISSUED TO 9500 PERSONS BUT IT IS NEVER POSSIBLE IN ANY CAS E THAT ALL THE PERSONS MUST VISIT WITH THE SPOUSE. THAT IN LARGE INVITATION THE RATIO OF ATTENDANCE WAS NOT MORE THAN 50 TO 60% AND IN MOST OF THE CASES ONLY O NE PERSON CAN ATTEND THE FUNCTION JUST TO SHOW HIS PRESENCE AND RECOGNIZE D THE INVITATION RECEIVED TO HIM. 8.1] THE ASSESSEE HAS PROVIDED ENTIRE MATERIAL FOR PREPARATION OF FOODS, THE FAMILY OF THE ASSESSEE ALSO HAVING GOOD EXPERIE NCE FOR PREPARATION OF FOODS. SINCE, FAMILY MEMBERS OF THE ASSESSEE ALSO R UNNING A RESTAURANT IN LAST SO MANY YEARS IN THE NAME OF VRINDAVAN. HENCE, ESTIMATION OF THE FOODS EXPENSES ON THE BASIS OF PER PLATE WAS NOT JUS TIFIABLE MORE SO WHEN DETAILS OF ENTIRE MATERIAL AS PURCHASED FOR PREPARA TION OF FOOD WAS PROVIDED. 8.2] THAT AS EXPLAINED ONLY 3763 ENVELOPE WAS RECEI VED BY THE ASSESSEE AND IT IS GENERALLY PRESUMED THAT EVERY PERSON ATTE ND THE MARRIAGE MUST GIVE SOME GIFT AS PER THEIR FINANCIAL STATUS. 8.3] THAT IT IS ALSO EQUALLY CORRECT THAT EVERY PE RSON MUST ATTEND WITH HIS / HER SPOUSE. THAT ONLY FAMILY MEMBERS, CLOSE RELATIV ES AND FRIENDS ATTEND THE AKASH VIJAYVARGIYA ITA NO.15/IND/2015 & CO 16/IND/2015 12 MARRIAGE FUNCTION WITH SPOUSE OTHERWISE SINGLE PERS ON ATTENDED THE FUNCTION JUST TO SHOW HIS PRESENCE AND RECOGNIZED THE INVITAT ION RECEIVED TO HIM. 9.1] THAT HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS A N DYANESWARAN [ APPEAL NO TAX CASE ( APPEAL ) NO 150 OF 2004 HAS DISCUSSED THE ISSUE OF MARRIAGE EXPENSES AND HELD THAT:- THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOU NT OF MARRIAGE EXPENSES IS PURELY A GUESS WORK AND THE TRIBUNAL HAS RIGHTLY DELETED THE ADDITION MADE BY THE ASSESSING OFFICER. 9.2] IN THE CASE OF HAKIM BRIJ LAL SHARMA VS. INCO ME TAX OFFICER, (1981) 11 TTJ (DEL) 349, IT IS HELD BY THE ITAT THA T:- ' WE HAVE HEARD THE PARTIES AND ARE SATISFIED THAT THERE IS ABSOLUTELY NO JUSTIFICATION IN SUSTAINING ANY ADDITION ON THIS SCO RE. THE DETAILS OF THE EXPENDITURE CLAIMED AND THE EXTENT OF THE PROOF AS STATED ABOVE AND FOUND BY THE DEPTL. AUTHORITIES, APPEARS TO US TO BE QUIT E REASONABLE AND ADEQUATE AND IN THE ABSENCE OF ANY EVIDENCE OR MATERIAL BROU GHT ON RECORD BY THE DEPARTMENTAL AUTHORITIES, WHICH WOULD SHOW THAT THE ACTUAL EXPENDITURE WAS MUCH MORE AND THERE ARE ITEMS OF EXPENDITURE IN CURRED BY THE ASSESSEE AND NOT SHOWN BY HIM, WE ARE UNABLE TO SUSTAIN ANY ADDITION. 9.3] IN THE CASE OF INCOME TAX OFFICER VS. SURESH C HANDRA KOTHARI, (IT APPEAL NO. 807/JODH./2007), IT IS HELD BY THE I TAT THAT:- 'THE ASSESSEE HAD CELEBRATED THE MARRIAGE OF HIS DA UGHTER DURING THE PERIOD UNDER CONSIDERATION AND HAD DISCLOSED THE EXPENDITU RE INCURRED BY HIM FOR AKASH VIJAYVARGIYA ITA NO.15/IND/2015 & CO 16/IND/2015 13 THAT PURPOSE IN THE BOOKS OF ACCOUNTS AS WELL AS IN THE RETURN FILED BY HIM BEFORE THE DEPARTMENT. AO ESTIMATED MERELY ON HIS A SSUMPTIONS AND PRESUMPTIONS OF THE PROBABLE EXPENDITURE THAT OUGHT TO HAVE BEEN INCURRED BY THE ASSESSEE FOR CELEBRATING THE MARRIAGE OF HIS DAUGHTER. IT WAS HELD THAT SINCE THE AO HAD NOT MADE OUT ANY OF THE INGREDIENT S AS REQUIRED UNDER LAW TO JUSTIFY THE ADDITION MADE UNDER SECTION 69C AGAIN ST THE ASSESSEE, THE ADDITION MADE WAS NOT VALID.' 9.4] IN THE CASE OF ASSISTANT COMMISSIONER OF INCOME TAX VS. H.M. SATHYANARAYAN SETTY, (IT APPEAL NO. 994/BANG./1995) , IT IS HELD BY THE ITAT THAT:- 'THE ASSESSING OFFICER WAS NOT ABLE TO SUBSTANTIATE HIS CONTENTION WITH THE SUPPORT OF ANY EVIDENCE. THE AS SESSING OFFICER HAD NOT BEEN ABLE TO SUBSTANTIATE HIS CONTENTION WI TH THE SUPPORT OF ANY ENQUIRIES UNDER THE PROVISION OF SECTION 138A(5 ) AND ANY QUESTIONNAIRE BEING ISSUED TO THE ASSESSEE TO ASCER TAIN THE EXPENDITURE INCURRED FOR THE MARRIAGE OF HIS DAUGHT ER ARBITRARY ADDITION OF MARRIAGE EXPENSES OF RS.1,20,000 WITHOU T ANY LEGAL OR PRUDENT BASIS WAS NOT JUSTIFIED IN THE EYES OF LAW. 9.5] IN THE CASE OF PRABAL LAKHOTIA VS. ASSISTANT COMMIS SIONER OF INCOME TAX, (IT APPEAL NO. 19/JODH./2006), IT IS HELD BY THE ITAT THAT:- 'IN THIS CASE THERE IS NO REFERENCE TO ANY MATERIAL FOUND DURING THE COURSE OF SEARCH DIVULGING THE INCURRING OF ANY UNEXPLAINED E XPENDITURE BY THE AKASH VIJAYVARGIYA ITA NO.15/IND/2015 & CO 16/IND/2015 14 ASSESSEE ON THE OCCASION OF MARRIAGE. IT WAS DECIDE D THAT, THE ASSESSEE CANNOT BE SADDLED WITH ANY SUCH LIABILITY. BY OVERT URNING THE IMPUGNED ORDER, WE ORDER FOR THE IMPUGNED ORDER, WE ORDER FO R THE DELETION OF THIS ADDITION. 10] THAT CONSIDERING THE INVITATION CARD AS ISSUED BY THE ASSESSEE AND ENVELOPE OF GIFT AS RECEIVED, WHEN ENTIRE MATERIAL FOR FOODS WAS SUPPLIED AND ONLY LABOUR CHARGES WAS PAID FOR PREPARATION AND SE RVICE. THE FOOD & CATERING EXPENSES AS SHOWN BY THE ASSESSEE AND HIS OTHER FAMILY MEMBERS WAS OF RS 11,33,017/- WAS REASONABLE AND JUSTIFIABLE . THE ADDITION SO MADE BY THE ASSESSING OFFICER AND PARTLY MAINTAINED BY T HE LD CIT[A} WAS NOT JUSTIFIED. HONBLE BENCH IS REQUESTED TO DELETE THE ENTIRE ADDITIONS SO MADE AND MAINTAINED BY THE LD CIT[A]. 5. ON THE OTHER HAND, THE LEARNED DR SUBMITTED THAT T HE ASSESSING OFFICER HAS MADE THE ADDITION ON ESTIMATE BASI S. THE ASSESSING OFFICER HAS ESTIMATED THE EXPENDITURE B Y AD HOC CALCULATION BY CALLING THE CD AND HE WAS OF THE VIE W THAT THE TOTAL NUMBER OF PERSONS PARTICIPATED IN THE MARRIAGE WERE 57,000 AND HE HAS MADE THE ADDITION ON ESTIMATE BASIS. AKASH VIJAYVARGIYA ITA NO.15/IND/2015 & CO 16/IND/2015 15 6. WE HAVE HEARD BOTH THE SIDES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THE LEARNED CI T(A) HAS ESTIMATED THE NUMBER OF GUESTS AT 57,000 ON ESTIMA TE BASIS BUT THE ASSESSEE HAS SUBMITTED THAT 9500 VISITING CARDS WERE DISTRIBUTED AND AS SUCH AT LEAST 19,000 PERSO NS MUST HAVE ATTENDED. THEREFORE, HE HAS CALCULATED AND RELI EF WAS GRANTED BUT WE ARE OF THE VIEW THAT THAT THE ASSESSE E HAS GIVEN CALCULATION THAT THE ASSESSEE HAS PROVIDED ENTI RE MATERIAL FOR PREPARATION OF FOOD AND THE ASSESSEE IS HAVIN G EXPERIENCE OF PREPARATION OF FOOD. THE FAMILY MEMBERS OF THE ASSESSEE ARE RUNNING A RESTAURANT IN THE NAME OF VRANDAVAN, HENCE, THERE MAY NOT BE MUCH EXPENDITURE INVOLVED IN CATERING THE GUESTS. IN OUR OPINION, THE EXPENDITURE DEPENDS UPON THE ITEMS BEING SERVED TO THE GUESTS WHICH MAY BE OF VERY HIGH QUALITY OR VERY LOW QUALITY. SINCE THE ASSESSEE HIMSELF RUNS A RESTAURANT VRANDAVAN, THERE IS ALWAYS A POSSIBILITY OF INCURRING LESS AKASH VIJAYVARGIYA ITA NO.15/IND/2015 & CO 16/IND/2015 16 EXPENDITURE ON THE FOOD ITEMS. WE, THEREFORE, CONFI RM THE FINDINGS OF THE LEARNED CIT(A) ON THIS ISSUE AND DIS MISS THIS GROUND OF APPEAL OF THE REVENUE. 7. SO FAR AS CROSS OBJECTION IS CONCERNED, IN VIEW OF THE ABOVE FACTS, IN OUR OPINION, IT WOULD BE REASONABLE TO MAINTAIN THE ADDITION OF RS.1 LAC U/S 69C OF THE ACT. 8. IN VIEW OF THE ABOVE, THE APPEAL OF THE REVENUE STAN DS DISMISSED AND THE CROSS OBJECTION IS PARTLY ALLOWED. 9. IN THE RESULT, THE APPEAL OF THE REVENUE FAILS AND T HE CROSS OBJECTION OF THE ASSESSEE IS PARTLY ALLOWED. PRONOUNCED IN OPEN COURT ON 6 SEPTEMBER, 2016 SD/- SD/ (N.S. SAINI) (D.T . GARASIA) ACCOUNTANTMEMBER JUDICIAL MEMBER 6.9.2016 AKASH VIJAYVARGIYA ITA NO.15/IND/2015 & CO 16/IND/2015 17