Sh. Ajay Kumar Gupta, Chandigarh V. DCIT, C-I, Chandigarh

ITA 151/CHANDI/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9282 (ITAT-CHANDIGARH)
• Duration Of Justice: 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 11-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMRESH SINGH
• Keywords: Unexplained investment; Search and seizure; Deemed to accrue or arise in india; Additional evidence
• Section: 153A; 69B

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH A , CHANDIGARH , ! ' # $ % & ' , ' BEFORE SMT.DIVA SINGH, JUDICIAL MEMBER AND SMT.ANNAPURNA GUPTA, ACCOUNTANT MEMBER ./ ITA NO.150/CHD/2019 / ASSESSMENT YEAR : 2004-05 SHRI ASHWANI KUMAR GUPTA, # 3007, SECTOR 19D, CHANDIGARH. THE DY.C.I.T., CENTRAL CIRCLE-1, CHANDIGARH. ./PAN NO: ABLPG9219P /APPELLANT /RESPONDENT ./ ITA NO.151/CHD/2019 / ASSESSMENT YEAR : 2004-05 SHRI AJAY KUMAR GUPTA, # 3007, SECTOR 19D, CHANDIGARH. THE DY.C.I.T., CENTRAL CIRCLE-1, CHANDIGARH. ./PAN NO: ABGPG3698B /APPELLANT /RESPONDENT ./ ITA NO.152/CHD/2019 / ASSESSMENT YEAR : 2004-05 SHRI VJAY KUMAR GUPTA, # 3007, SECTOR 19D, CHANDIGARH. THE DY.C.I.T., CENTRAL CIRCLE-1, CHANDIGARH. ./PAN NO: ABGPG3697Q /APPELLANT /RESPONDENT ITA NOS.150 TO 152/2019 A.Y.2004-05 2 /ASSESSEE BY: SHRI TEJ MOHAN SINGH, ADV. ! / REVENUE BY : SHRI AMRESH SINGH, CIT (DR) ' # $ /DATE OF HEARING : 02.07.2019 %&'( $ /DATE OF PRONOUNCEMENT: 08.07.2019 /ORDER PER BENCH : THE ABOVE APPEALS HAVE BEEN FILED BY THE DIFFERENT ASSESSEES AGAINST THE CONSOLIDATED ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-3, GURGAON [(I N SHORT CIT(A)] DATED 30.11.2018, PASSED U/S 250(6) OF TH E INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS ACT), R ELATING TO ASSESSMENT YEAR 2004-05. 2. IT WAS COMMON GROUND BETWEEN THE PARTIES THAT TH E ISSUE INVOLVED WAS COMMON AND INTERLINKED IN ALL TH E THREE APPEALS, RELATING TO ADDITION MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT IN A COMMON HOUSE PROPERTY B Y THE THREE ASSESSEES. IT WAS FURTHER POINTED OUT THIS WA S THE SECOND ROUND BEFORE US WITH THE ISSUE ORIGINALLY HA VING BEEN RESTORED BACK BY THE ITAT IN THE FIRST ROUND TO THE ASSESSING OFFICER (A.O.) FOR CONSIDERATION AFRESH. ALL THE APPEALS WERE, THEREFORE, TAKEN UP TOGETHER FOR HEAR ING. ITA NOS.150 TO 152/2019 A.Y.2004-05 3 LD.COUNSEL FOR THE ASSESSEE STATED THAT FOR THE SA KE OF CONVENIENCE HE SHALL BE DEALING WITH THE FACTS IN THE CASE OF SHRI VIJAY KUMAR GUPTA IN ITA NO.152/CHD/2019. TAKI NG US THROUGH THE FACTS OF THE CASE, AS REPRODUCED IN THE ORDER PASSED BY THE I.T.A.T. IN THE FIRST ROUND IN ITA NO.660-663/CHD/2008 DATED 30-04-14, COPY OF WHICH WAS PLACED BEFORE US AT PAGE NOS.24 TO 68, THE LD.COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO P ARA 76 OF THE ORDER WHERE THE FACTS RELATING TO THE ISS UE WERE DISCUSSED. THE LD.COUNSEL FOR THE ASSSESSEE POINTED OUT FROM THE SAME THAT THE ASSESSEE ALONGWI TH HIS BROTHERS S/SHRI ASHWANI KUMAR GUPTA AND AJAY KUMAR GUPTA(THE OTHER ASSESSES/APPELLANTS) HAD PURCHASED HOUSE NO.164, SECTOR 27, CHANDIGARH DURING THE IMPUGNED YEAR VIDE SALE DEED REGISTERED FOR A CONSIDERATION OF RS.48 LACS. THAT THE SAID PROPE RTY WAS PURCHASED FROM ONE SHRI SHANTI LAL SETHIA. THAT DURING SEARCH & SEIZURE OPERATION AT THE PREMISES O F ONE SHRI MUKESH MITTAL A PRINTOUT OF AGREEMENT TO SELL FROM HIS COMPUTER, REFLECTED A CONSIDERATION O F RS.75 LACS FOR THE SAID PROPERTY. THE A.O. FURTHER FOUND THAT THE SELLER HAD MORTGAGED THIS PROPERTY F OR RAISING LOAN FROM BANK OF RS.75 LACS. THE A.O. FURT HER ITA NOS.150 TO 152/2019 A.Y.2004-05 4 NOTED THAT THE ASSESSEE HAD DECLARED INVESTMENT OF A SUM OF RS.17 LACS ONLY FOR PURCHASE OF SAID HOUSE DURING THE YEAR IN HIS RETURN OF INCOME FILED. THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF INVESTMENT OF RS.75 LACS IN THE PROPERTY AND SINCE THE ASSESSEE FAILED TO FURNISH ANY EVIDENCE REGARDING T HE SOURCE OF INVESTMENT, THE A.O. TREATED THE ENTIRE AMOUNT AS UNEXPLAINED AND ADDED 1/3 R D OF THE TOTAL INVESTMENT MADE IN THE HANDS OF EACH ASSESSEE, AMOUNTING TO RS.28 LACS, AS DEEMED INCOME U/S 69B OF THE ACT. PARA 76 OF THE I.T.A.T. ORDER ,NOTING T HE ABOVE FACTS IS REPRODUCED HEREUNDER: 76. THE BRIEF FACTS RELATING TO THE ISSUE ARE THAT THE ASSESSEE ALONGWITH HIS BROTHERS S/SHRI ASHWANI KUMA R GUPTA AND VIJAY KUMAR GUPTA PURCHASED HOUSE NO.164, SECTOR 27, CHANDIGARH VIDE SALE DEED REGISTERED ON 10.2.2004 FOR TOTAL CONSIDERATION OF RS.48 LACS. T HE SAID PROPERTY WAS PURCHASED FROM SHRI SHANTI LAL SE TIA. DURING THE COURSE OF SEARCH AND SEIZURE OPERATION A T THE PREMISES OF SHRI MUKESH MITTAL A PRINTOUT OF AGREEM ENT TO SELL FROM THE COMPUTER OF SHRI MUKESH MITTAL REFLECTED THE CONSIDERATION OF RS.75 LACS AS AGAINS T SALE CONSIDERATION MENTIONED IN THE SALE DEED AT RS.48 LACS. THE ASSESSING OFFICER NOTED THAT AS PER THE AGREEME NT TO SELL CONSIDERATION WAS RS.75 LACS, WHEREAS AS PER S ALE DEED THE CONSIDERATION WAS RS.48 LACS AND CAME TO T HE CONCLUSION THAT THE CONCEALMENT OF INCOME IN THIS PROPERTY TRANSACTION WAS TO THE TUNE OF RS.27 LACS. REFERENCE WAS MADE TO SECTION 2(22AA) OF THE ACT DEFINING THE DOCUMENTS AND ALSO TO SECTION 2(1)(F) OF THE INFORMATION TECHNOLOGY AND ALSO THE INFORMATION GATHERED FROM CHIEF MANAGER, UNION BANK OF INDIA, ITA NOS.150 TO 152/2019 A.Y.2004-05 5 SECTOR 17B, CHANDIGARH. THE ASSESSING OFFICER ON INVESTIGATION FOUND THAT SHRI SHANTI LAL SETIA HAS MORTGAGED THE PROPERTY FOR RAISING THE LOAN AND SUM OF RS.75 LACS WAS PAID TO THE BANK OUT OF WHICH RS.27 LACS WAS PAID IN CASH ON 27.1.2004. THE AGREEMENT TO SE LL WAS EXECUTED IN THE MONTH OF JANUARY AND AS PER THE ASSESSING OFFICER THE SAME REPRESENTED UNDISCLOSED PORTION OF THE CONSIDERATION. THE ASSESSEE WAS ASK ED TO EXPLAIN THE SOURCE OF RS.75 LACS IN THE PURCHASE OF PROPERTY WITH EVIDENCE. THE ASSESSEE, ON THE OTHER HAND, IN THE COMPUTATION OF INCOME HAD DECLARED THA T HE HAD INVESTED SUM OF RS.17 LACS FOR PURCHASE OF RESIDENTIAL HOUSE IN SECTOR 27, CHANDIGARH JOINTLY WITH S/SHRI ASHWANI KUMAR GUPTA AND VIJAY KUMAR GUPTA DURING THE YEAR BUT AS THE ASSESSEE HAD FAILED TO F URNISH ANY EVIDENCE REGARDING THE NATURE AND SOURCE OF THI S INVESTMENT EITHER IN THE RETURN OF INCOME OR IN THE COURSE OF PROCEEDINGS, THE ASSESSING OFFICER HELD T HAT 1/5 TH SHARE IN THE TOTAL INCOME I.E. RS.75 LACS PLUS OTH ER OVER HEAD EXPENSES OF RS.3 LACS EQUAL TO RS.78 LACS WAS THE SHARE OF THE ASSESSEE AND THUS SUM OF RS.28 LAC S WAS ADDED AS DEEMED INCOME UNDER SECTION 69B OF THE ACT . 4. THE LD.COUNSEL FOR THE ASSSESSEE THEREAFTER STATED THAT THE CIT(A) DELETED THE ENTIRE ADDITION ON THE BASIS THAT THE CONSIDERATION RECORDED IN THE SA LE DEED STOOD DISCLOSED IN THE RETURN FILED BY THE ASSESSEE AND HAD BEEN SHOWN AS PAID FROM THE BANK ACCOUNTS OF THE ASSESSEES AND THUS STOOD EXPLAINED. FURTHER THAT THE UNDISCLOSED INVESTMENT OVER AND ABOVE RS.48 LACS AMOUNTING TO RS.27 LACS HAD BEEN DENIED BOTH BY THE BUYER AND THE SELLER TO HAVE BEE N TRANSACTED AND THERE WAS NO EVIDENCE WITH THE REVENUE TO HOLD THAT THE IMPUGNED AMOUNT OF MONEY HAD PASSED FOR THE PURCHASE OF THE SAID PROPERTY AN D, ITA NOS.150 TO 152/2019 A.Y.2004-05 6 THEREFORE, NO ADDITION WAS WARRANTED ON ACCOUNT OF THE SAME ALSO. THUS BOTH THE REGISTERED SALE CONSIDERATION I.E. THE DISCLOSED CONSIDERATION I.E. DISCLOSED CONSIDERATION AND THE UNDISCLOSED CONSIDERATION RELATING TO THE IMPUGNED INVESTMENT O F RS.75 LACS AMOUNTING TO RS.48 LACS AND RS.27 LACS RESPECTIVELY WAS DELETED BY THE LD.CIT(A) LD.COUNSE L FOR THE ASSESSEE TOOK US THROUGH PARA 77 OF THE ORD ER OF THE ITAT NOTING THE AFORESAID FACTS AS UNDER: 77. THE CIT (APPEALS) NOTED THAT THE TOTAL INVESTM ENT WORKED OUT BY THE ASSESSING OFFICER WAS RS.78 LACS AND 1/3 RD OF THE SAME COMES TO RS.26 LCAS, WHEREAS ADDITION OF RS.28 LACS HAD BEEN MADE. THE CIT (APPEALS) FUR THER NOTED THAT THE ASSESSING OFFICER HIMSELF HAD MENTIO NED THAT RS.48 LACS WAS DECLARED AS CONSIDERATION IN TH E PROPERTY IN QUESTION AND THE SOURCE OF THE SAID RS. 48 LACS PLUS RS.3 LACS WAS THAT RS.17 LACS HAVE BEEN P AID BY THE ASSESSEE, S/SHRI ASHWANI KUMAR GUPTA AND VIJ AY KUMAR GUPTA EACH. AS THE SAID AMOUNT WAS PAID FROM THE RESPECTIVE BANK ACCOUNTS OF THE SAID PERSONS, T HE CIT (APPEALS) WAS OF THE VIEW THAT THE SAID OBVIOUS LY WAS PAID FROM THE EXPLAINED SOURCES OF THE PERSONS AND DULY REFLECTED IN THE RELEVANT DOCUMENTS. THUS AS PER THE CIT (APPEALS) THERE WAS NO QUESTION OF CONSIDER ING THE INVESTMENT OF RS.51 LACS TO BE UNEXPLAINED INVESTMENT. IN RESPECT OF THE BALANCE SUM OF RS.2 7 LACS, THE CIT (APPEALS) NOTED THAT BOTH THE ASSESSE E AND THE SELLER OF THE PROPERTY HAD STATED THAT NO SUCH AMOUNT WAS EITHER PAID OR RECEIVED ON ACCOUNT OF THE SAID TRANSACTION. THE CIT (APPEALS) HELD THAT THE ADDIT ION FOR SUCH ON MONEY COULD NOT BE MADE ON THE BASIS OF SUSPICION AND ON THE BASIS THAT SUCH ON MONEY DOES PASS IN SIMILAR MANNER. IN THE ABSENCE OF ANY CONCRETE EVIDENCE THE CIT (APPEALS) HELD THAT NO ADDITION WA S WARRANTED ON THE BASIS OF SUSPICION. THE CIT (APPE ALS) FURTHER NOTED THAT SHRI SHANTI LAL SETIA AND HIS WI FE HAD ITA NOS.150 TO 152/2019 A.Y.2004-05 7 CATEGORICALLY REFUSED TO HAVE RECEIVED THE AMOUNT F ROM THE ASSESSEE OR HIS BROTHERS AND THE SOURCES OF THE CASH DEPOSITED IN THE UNION BANK OF INDIA WAS EXPLAINED BY HIM AND HENCE THERE WAS NO GROUND FOR TAKING ADVERS E VIEW AGAINST THE ASSESSEE. FURTHER IN THE HANDS OF SHRI SHANTI LAL SETIA AND HIS WIFE THE SALE CONSIDERATIO N OF THE PROPERTY HAD BEEN CONSIDERED AT RS.48 LACS ONLY AND IN VIEW THEREOF, THERE WAS NO JUSTIFICATION FOR TAK ING CONTRARY STAND IN THE HANDS OF THE ASSESSEE ON THE BASIS OF THE COMPUTER PRINTOUT OF AGREEMENT TO SELL FOUND IN THE POSSESSION OF SHRI MUKESH MITTAL. THUS ADDITIO N OF RS.28 LACS WAS DELETED. 5. THEREAFTER THE LD.COUNSEL FOR THE ASSSESSEE STATED THAT THE I.T.A.T. RESTORED THE ADDITION MADE ON ACCOUNT OF THE REGISTERED SALE CONSIDERATION OF RS. 48 LACS TO THE AO, HOLDING THAT MERE DISCLOSURE OF THE INVESTMENT IN THE RETURN OF INCOME FILED DID NOT DISCHARGE THE ONUS UPON THE ASSESSEE TO EXPLAIN WIT H EVIDENCE THE SOURCE OF THE INVESTMENT AND THAT IN T HE INTEREST OF JUSTICE THE ISSUE NEEDED TO BE RECONSIDERED BY THE A.O. OUR ATTENTION WAS DRAWN TO THE FINDINGS OF THE I.T.A.T. AT PARA 79 OF THE ORD ER AS UNDER: 79. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE RECORD. THE ISSUE ARISING IN THE PRESENT APPEA L IS IN RELATION TO THE INVESTMENT IN HOUSE NO.164, SECTOR 27, CHANDIGARH. THE ASSESSEE ALONGWITH HIS TWO BROTHER S S/SHRI ASHWANI KUMAR GUPTA AND VIJAY KUMAR GUPTA HAD MADE INVESTMENT IN THE PURCHASE OF THE SAID PROPERTY. THE SAID DEED WAS REGISTERED ON 10.2.200 4 AND THE TOTAL CONSIDERATION IN THE SALE DEED WAS RS .48 LACS. DURING THE COURSE OF SEARCH AND SEIZURE OPER ATION AT THE PREMISES OF SHRI MUKESH MITTAL, A PRINTOUT O F ITA NOS.150 TO 152/2019 A.Y.2004-05 8 AGREEMENT TO SELL WAS TAKEN IN WHICH THE CONSIDERAT ION WAS MENTIONED AT RS.75 LACS. AS THE ASSESSEE FAILE D TO EXPLAIN THE SOURCES OF INVESTMENT BOTH THE DECLARED AND UN-DECLARED, BEFORE THE ASSESSING OFFICER BECAUSE O F NON FILING OF ANY INFORMATION BEFORE THE ASSESSING OFFICER, THE ASSESSING OFFICER TREATED THE INVESTME NT OF RS.75 LACS PLUS OVER HEAD EXPENSES OF RS.3 LACS AS UNEXPLAINED AND MADE ADDITION OF RS.28 LACS EACH IN THE HANDS OF THREE CO-OWNERS. THE CIT (APPEALS) IN THE FIRST INSTANCE NOTED THAT 1/3 RD SHARE OF RS.78 LACS WAS RS.27 LACS AND NOT RS.28 LACS. THE CIT (APPEALS) FURTHER OBSERVED THAT THE SALE CONSIDERATION DECLARED IN TH E SALE DEED I.E. RS.48 LACS WAS OUT OF THE DECLARED SOURCE S OF THE ASSESSEE AND ADDITION TO THAT EFFECT WAS DELETE D BY THE CIT (APPEALS). WE FIND NO MERIT IN THE SAID S TAND OF THE CIT (APPEALS) WHERE THE ASSESSEE HAD FAILED TO FURNISH BASIC EVIDENCE OF THE SOURCE OF INVESTMENT IN HOUSE NO.164, SECTOR 27, CHANDIGARH MERELY BECAUSE ASSESSEE HAD DECLARED THAT IT HAD INVESTED IN THE PURCHASE OF THE SAID PROPERTY IN THE COMPUTATION OF INCOME FILED ALONGWITH THE RETURN OF INCOME, DOES N OT DISCHARGE THE ONUS UPON THE ASSESSEE TO EXPLAIN WIT H EVIDENCE THE SOURCE OF INVESTMENT IN THE SAID PROPE RTY. WE REVERSE THE FINDING OF THE CIT (APPEALS) IN THIS REGARD. HOWEVER, IN THE INTEREST OF JUSTICE, WE D EEM IT FIT TO SEND THIS ISSUE BACK TO THE FILE OF THE ASSE SSING OFFICER, WHO SHALL ADJUDICATE THE ISSUE IN ACCORDAN CE WITH LAW. THE ASSESSEE IS DIRECTED TO DISCHARGE HI S ONUS WITH EVIDENCE OF SOURCES OF INVESTMENT IN THE SAID PROPERTY. REASONABLE OPPORTUNITY OF HEARING SHALL BE AFFORDED TO THE ASSESSEE BY THE ASSESSING OFFICER A ND THE ISSUE BE DECIDED IN ACCORDANCE WITH LAW. 6. THE LD.COUNSEL FOR THE ASSSESSEE THEREAFTER TOOK US THROUGH THE ORDER OF THE A.O. PASSED IN THE SECO ND ROUND POINTING OUT FROM PARA 4 THEREOF THAT THE ASSESSEE DURING PROCEEDINGS BEFORE THE A.O. HAD STATED THAT IT HAD APPROACHED THE I.T.A.T. TO BRING TO ITS NOTICE THE DEFECT IN ITS ORDER OF HAVING NOT CONSIDERED THE ADDITIONAL EVIDENCE FILED BEFORE IT. THE ITA NOS.150 TO 152/2019 A.Y.2004-05 9 CONTENTS OF THE LETTER FILED TO THE I.T.A.T. WERE SUBMITTED TO THE A.O. THAT THEREAFTER THE A.O. HAD WRITTEN TO THE REGISTRAR OF THE I.T.A.T. TO CONFIRM WHETHER ANY SUCH APPLICATION WAS FILED BY THE ASSESSEE AND IF SO, TO SEND THE STATUS OF THIS APPLICATION. THAT IN RESPONSE TO THE SAME, THE A.O. WAS INFORMED THAT NO APPLICATION WAS PENDING FOR DISPOSAL BEFORE THE I.T.A.T. AND FURTHER THE STATUS OF THE APPLICATION FILED BY THE ASSESSEE TO THE I.T.A. T. HAD BEEN SENT TO IT. THE A.O. AFTER CONSIDERING THE REPLY WAS OF THE VIEW THAT THE ASSESSEE WAS MERELY AVOIDING REPRESENTING HIS CASE ON MERITS INDULGING IN DELAY IN THE PROCEEDINGS RAISING PETTY MATTERS AND SINCE DESPITE MANY NOTICES AND QUERIES RAISED, NO REPLY WAS FIELD BY THE ASSESSEE. THE A.O. CONFIRMED THE ADDITION OF RS.28 LACS ON ACCOUNT OF UNEXPLAINE D INVESTMENT IN HOUSE NO.164, SECTOR 27, CHANDIGARH. PARA 6 OF THE A.O.S ORDER HOLDING SO, IS REPRODUCE D HEREUNDER: 6. IN VIEW OF THE ABOVE STATE OF AFFAIRS, IT CAN C LEARLY BE OBSERVED THAT THE ASSESSEE HAS AVOIDED REPRESENTING HIS CASE ON MERITS AND HE HAS WILLFULLY INDULGED IN DELAYING THE PROCEEDINGS WHILE RAISING SOME OTHER PETTY MATTERS LIKE MAKING REPRESENTATION BEFORE HON'BLE ITAT WITH REGA RD TO ALLEGED DEFECTS IN THE ORDER OF THE HON'BLE ITAT. C ONSIDERING ITA NOS.150 TO 152/2019 A.Y.2004-05 10 THE DELAYING TACTICS AND NOT RESPONDING TO THE QUER IES RAISED VIDE NOTICES ISSUED U/S 142(1), PENALTY PROCEEDINGS WERE INITIATED U/S 271(1)(B) AND SUBSEQUENTLY PENALTY FO R RS.20,000/- WAS IMPOSED ON THE ASSESSEE VIDE ORDER DATED 11.03.201 6. IT MAY FURTHER BE IMPORTANT TO MENTION HERE THAT EVEN DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS, THE ASSESSEE REMAINED NON-COOPERATIVE IN FINALIZING THE ASSESSMENT . DESPITE MANY NOTICES ISSUED AND QUERIES RAISED, NO CONCRETE REPLY WAS FILED BY THE ASSESSEE. ACCORDINGLY, THE THEN ASSESSING OFFICER HAD TO FRAM E THE ASSESSMENT 153A ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. THUS, I AM OF THE OPINION THAT THE ASSESSEE HAS NOT HING TO OFFER ON THE ISSUE OF ADDITION OF RS. 28,00,000/- O N ACCOUNT OF UNEXPLAINED INVESTMENT IN HOUSE NO.164, SECTOR-2 7, CHANDIGARH. ACCORDINGLY, AN ADDITION OF RS.28,00,00 0/- IS MADE TO THE RETURNED INCOME OF THE ASSESSEE. 7. THE LD.COUNSEL FOR THE ASSSESSEE THEREAFTER STATED THAT THE LD.CIT(A) UPHELD THE ORDER OF THE A .O BUT BASED HIS FINDINGS ON FACTS WHICH WERE NOT RELA TED TO THE ISSUE AT HAND. LD.COUNSEL FOR THE ASSESSEE T OOK US THROUGH THE ORDER OF THE CIT(A) AT PARA 6.5 AS UNDER: 6.5 DURING THE APPELLATE PROCEEDINGS, THE APPELLAN T HAS NEITHER MADE ANY REQUEST FOR ADMISSION OF ADDITIONAL EVIDENCE NOR ANY EXPLANATION WITH REGARD TO THE SOURCE OF INVESTMENT OF RS. 51 LACS (SALE PRICE OF RS. 48 LACS + RS. 3 LACS OF OVERHEAD EXPENSES). THE HON'BLE ITAT HAS ALREADY ADJUDICATED THE ISSUE WITH REGARD TO THE AMOUNT OF RS, 27 LAKHS OVER AND ABOVE THE DECLARED SALES CONSIDERATION OF RS. 48 LAKHS AT PAR A 80 OF THE ORDER BY STATING THAT NO ADVERSE INFERENCE CAN BE D RAWN AGAINST THE ASSESSEE ON THE BASIS OF THE ALLEGED AG REEMENT TO SALE WHICH IS A COMPUTER PRINTOUT AND NOT EVEN SIGN ED BY ANY PARTIES. HOWEVER, IT IS APPARENT THAT THE APPELLANT H AS FAILED TO IDENTIFY THE CREDITOR, PROVE THE CAPACITY OF THE CR EDITOR AND ITA NOS.150 TO 152/2019 A.Y.2004-05 11 JUSTIFY THE GENUINENESS OF LOAN WITH REGARD TO RS. 51 LACS RECEIVED THROUGH ACCOUNT PAYEE CHEQUE IN THE BANK A CCOUNT OF THE APPELLANTS), SH. AJAY KR. GUPTA, SH, VIJAY K R. GUPRA & SH. ASHWINI KR. GUPTA FOR THE-YEAR UNDER CONSIDERAT ION. FURTHER, THE APPELLANT (S) HAVE ALSO NOT GIVEN ANY FRESH EVIDENCE WITH REGARD TO THE ISSUE RELATED TO RS. 51 LAKHS RECEIVED IN CASE OF ALL THE THREE APPELLANTS WHICH WAS RESTORED BACK TO THE FILE OF THE AO, WHO AS WEL L AS THE UNDERSIGNED HAVE AFFORDED REASONABLE OPPORTUNIT Y TO APPELLANT(S). IN VIEW OF THE ABOVE DISCUSSION, ADDITION OF RS. 17 LAKHS IS CONFIRMED IN THE HANDS OF THE APPELLANT, SHRI AJAY KUMAR GUPTA. AS SIMILAR ISSUE IS INVOLVED IN THE CASE OF OTHER APPELLANTS] OF THIS COMMON ORDER AS DISCUSSED ABOVE, SIMILAR ADDITION OF RS. 17 LACS IS ALSO CONFIRMED IN THE HANDS OF SHRI VIJAY KUMAR GUPTA AND SHRI ASHWANI KUMAR GUPTA ALSO FOR THE YEAR UNDER CONSIDERATION. 8. THE LD.COUNSEL FOR THE ASSSESSEE POINTED OUT FROM THE SAME THAT THE LD.CIT(A) WHILE ADJUDICATING THE ISSUE OF INVESTMENT IN HOUSE PROPERTY HAD GONE ON A TOTALLY DIFFERENT TANGENT, DIVERGING FROM THE ISS UE AT HAND COMPLETELY BY MAKING A REFERENCE TO THE FACT T HAT THE ASSESSEE HAD FAILED TO IDENTIFY CREDITOR, PROVE ITS CAPACITY AND JUSTIFY THE GENUINENESS OF THE LOAN. LD.COUNSEL FOR THE ASSESSEE CONTENDED THAT THE FINDINGS OF FACT THUS RECORDED BY THE CIT(A) ,BASED ON WHICH HE HAD UPHELD THE ADDITION WAS CLEARLY ALIEN TO THE ISSUE AT HAND. THE LD.COUNSEL FOR THE ASSSESSEE CONTENDED, THEREFORE, THAT THE CIT(A) HAD UPHELD TH E ITA NOS.150 TO 152/2019 A.Y.2004-05 12 ORDER OF THE A.O. WITHOUT APPLYING HIS MIND TO THE ISSUE AT ALL. 9. THE LD. DR FAIRLY CONCEDED THAT THE FINDINGS O F FACT RECORDED BY THE CIT(A) WHILE CONFIRMING THE ADDITION MADE BY THE A.O. ,WERE NOT IN RELATION TO THE ISSUE AT HAND. 10. IN VIEW OF THE ABOVE, SINCE UNDISPUTEDLY THE OR DER PASSED BY THE CIT(A) IS NOT BASED ON THE FACTS RELA TING TO THE ISSUE AT HAND, THERE IS CLEARLY NO APPLICATI ON OF MIND BY THE LD.CIT(A). THE ORDER PASSED IS PERVERSE . IN THE INTEREST OF JUSTICE THEREFORE, WE CONSIDER I T FIT TO RESTORE THE ISSUE BACK TO THE CIT(A) TO ADJUDICA TE THE ISSUE AFRESH AFTER CONSIDERING THE RELEVANT FAC TS RELATING TO THE ISSUE. NEEDLESS TO ADD THAT THE ASSESSEE BE GIVEN DUE OPPORTUNITY OF HEARING AND IS FREE TO FILE ALL EVIDENCES WHICH HE CONSIDERS NECES SARY FOR THE ADJUDICATION OF THE ISSUE AT HAND. THE LD.COUNSEL FOR THE ASSSESSEE HAS GIVEN AN ORAL UNDERTAKING TO US TO PARTICIPATE IN THE PROCEEDINGS AND NOT TAKE UNNECESSARY ADJOURNMENTS, FAILING WHIC H THE LD.CIT(A) IS FREE TO ADJUDICATE THE ISSUE ON TH E ITA NOS.150 TO 152/2019 A.Y.2004-05 13 BASIS OF MATERIAL IN HIS POSSESSION AND AS HE DEEMS FIT, IN ACCORDANCE WITH LAW. 11. SINCE THE ISSUE IS COMMON TO ALL THE APPEALS, O UR DECISION RENDERED ABOVE WILL MUTATIS MUTANDIS TO AL L THE APPEALS. 12. IN EFFECT THEREFORE ALL THE APPEALS FILED BY TH E ASSESSEE STAND ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- # $ % & ' (DIVA SINGH ) (ANNAPURNA GUPTA) ! ' /JUDICIAL MEMBER () ' /ACCOUNTANT MEMBER # /DATED: 08 TH JULY, 2019 * * &) *+,+ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ' - / CIT 4. ' - ( )/ THE CIT(A) 5. +./ 0 , $0 , 123/4 / DR, ITAT, CHANDIGARH 6. /35# / GUARD FILE &) ' / BY ORDER, / ASSISTANT REGISTRAR