A.C.I.T., Circle 3(1), Gwalior V. Smt. Poonam Gupta, Gwalior

ITA 157/AGR/2011

• Counselvise Citation: 15720314 RSA 2011
• Duration Of Justice: 2 year(s) 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-08-2013
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 17-07-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 13-05-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S L MAURYA
• Assessee Lawyers: MAHESH AGARWAL
• Keywords: Unexplained cash credit; Business income; Salary income; Assessment record; Onus to prove
• Section: 153A; 68; 69; 6; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO.157/AGRA/2011 ASSESSMENT YEAR: 2006-07 ASSTT. COMMISSIONER OF INCOME TAX, VS. SMT. POONAM GUPTA, CIRCLE-3(1), GWALIOR. 61, LAXMI BAI COLONY, GWALIOR. (PAN: ACOPG 5442 Q). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.L. MAURYA, SR. D.R. RESPONDENT BY : SHRI MAHESH AGARWAL, C.A. DATE OF HEARING : 17.07.2013 DATE OF PRONOUNCEMENT : 02.08.2013 ORDER PER A.L. GEHLOT, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 22.02.2011 PASSED BY THE CIT(A), GWALIOR FOR THE A.Y. 2006-07. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT (APPEAL) HAS ERRED IN:- 1. DELEING THE ADDITION OF RS.70,14,083/- MADE BY T HE AO ON ACCOUNT OF UNEXPLAINED CREDIT U/S 68 OF THE INCOME TAX ACT AS THE ASSESSEE HAS FAILED TO DISCHARGE ITS PRIMARY ON US TO PROVE 2 ITA NO.157/AGRA/2011 A.Y. 2006-07 THE CREDITWORTHINESS OF THE CREDITORS WITH DOCUMENT ARY EVIDENCE AS HELD BY HONBLE SUPREME COURT IN THE CASE OF ROS HAN DI HATI VS. CIT, KALE KHAN MOHAMMAD HANIF VS. CIT AND SUMATI DAYAL VS. CIT REPORTED IN CIT (1977) 107 ITR 938 (S C), (1963) 50 ITR 1 (SC) AND (1955) 80 TAXMAN 89/214 ITR 801 ( SC). 2. DELETING THE ADDITION OF RS.88,000/- MADE BY THE A.O. ON ACCOUNT OF HOUSE HOLD EXPENSES. 3. THE FIRST GROUND IS PERTAINING TO ADDITION OF RS .70,14,083/- MADE BY THE A.O. ON ACCOUNT OF UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER). 4. THE BRIEF FACTS OF THE CASE ARE THAT A SEARCH OP ERATION UNDER SECTION 132 OF THE ACT WAS CONDUCED ON 28.03.2008. DURING THE ASS ESSMENT PROCEEDINGS, ON EXAMINATION OF BANK ACCOUNTS OF THE ASSESSEE AT ICI CI AND IDBI BANK, IT WAS NOTICED THAT THERE WERE ENTRIES OF DEPOSIT OF CASH AND CHEQUES IN THE DENOMINATION OF RS.49,000/- AND RS.54,000/-, TOTALING TO RS.70,1 4,083/-. THE A.O. ASKED THE ASSESSEE TO EXPLAIN THE NATURE AND SOURCE OF DEPOSI TS. BEFORE THE A.O. IT WAS SUBMITTED THAT THESE WERE PAYMENTS RECEIVED FROM M/ S. DEEPAK SECURITIES BUT THE LETTER MAILED IN THIS REGARD HAS BEEN SUBMITTED TO EXPLAIN THE SOURCE, WHICH DOES NOT HAVE THE DETAILS OF BANK FROM WHERE THE DEMAND DRAFT WAS PURCHASED AND NOTHING HAS BEEN EXPLAINED REGARDING THE SOURCE OF CASH SENT TO THE ASSESSEE. THEREFORE, THE A.O. MADE ADDITION OF RS.17,14,083/- . 3 ITA NO.157/AGRA/2011 A.Y. 2006-07 5. THE CIT(A) DELETED THE ADDITION AS UNDER :- (PAG E NOS.3,4 & 5) 3.2 APPELLANTS SUBMISSIONS ALONG WITH ASSESSMENT ORDER HAVE BEEN CONSIDERED CAREFULLY. ASSESSMENT RECORDS HAVE ALSO BEEN PERUSED. RETURN OF INCOME FILED BY THE APPELLANT IN DUE COUR SE ON 31.10.2006 HAS ALSO BEEN TREATED THE SAME AS FILED IN RESPONSE TO NOTICE U/S 153A. THE ABOVE MENTIONED ORIGINAL RETURN HAS BEEN PROCES SED ON SAME RETURNED INCOME OF RS.15,98,855/- AS PER INTIMATION DT. 15.02.2007 ISSUED U/S 143(1). DURING THE COURSE OF SEARCH OPE RATIONS CONDUCTED ON 28.03.2008 IN CASE OF APPELLANT ALONG WITH HER F AMILY MEMBERS, NO INCRIMINATING DOCUMENT OR ANY MATERIAL HAS BEEN FOU ND RELATING TO THE ADDITION SO MADE BY THE A.O. SECTION 153A DOES NOT AUTHORISE THE AO FRAMING OF A DE NOVO ASSESSMENT. THE POWER GIVEN B Y THE FIRST PROVISO OF SECTION 153A TO ASSESS INCOME FOR SIX ASSTT. YEA RS HAS TO BE CONFINED TO THE UNDISCLOSED INCOME UNEARTHED DURING SEARCH O PERATIONS OR ON THE BASIS OF SEIZED MATERIAL AND DOCUMENTS. IT IS A WELL SETTLED POSITION OF LAW AS HELD BY VARIOUS COURTS THAT WHER E NOTHING INCRIMINATING IS FOUND IN THE COURSE OF SEARCH RELA TING TO ANY ASSTT. YEAR, THEN ASSESSMENT FOR SUCH YEAR CANNOT BE DISTU RBED. 3.3 FURTHER FROM PERUSAL OF RECORDS, IT IS SEEN THA T A.O. HAS BASED HIS ADDITION ON THE BASIS OF UNEXPLAINABILITY OF TH E SOURCE OF PAYMENTS MADE BY A THIRD PARTY I.E. M/S. DEEPAK SECURITIES. VIDE LETTER DTD. 08.12.2009, THE APPELLANT HAS GIVEN COMPLETE ACCOUN T OF M/S. DEEPAK SECURITIES IN RESPECT OF TRADING OF SHARES DONE THR OUGH IT. A.O. HAS OBTAINED CONFIRMATION FROM M/S. DEEPAK SECURITIES S ITUATED AT 4280/3C, ANSARI ROAD, DARIYA GANJ, NEW DELHI. AS P ER THE A.O. THE SAID CONFIRMATION DOES NOT EXPLAIN THE SOURCE FROM WHICH DEMAND DRAFTS AND CASH HAS BEEN SENT BY IT TO THE APPELLAN T. HENCE THE ENTIRE AMOUNT HAS BEEN ADDED TO THE INCOME OF THE APPELLAN T BY THE AO AS UNEXPLAINED DEPOSITS. M/S DEEPAK SECURITIES IS FUN D TO BE A SEBI REGISTERED BROKER WITH DELHI STOCK EXCHANGE, WHO HA S CONFIRMED THE TRANSACTION REFLECTED BY THE APPELLANT AS PER RETUR NS AND BOOKS OF ACCOUNTS. THERE IS NO DISCREPANCY FOUND IN THE BOO KS OF THE APPELLANT ON THE BASIS OF CONFIRMATION GIVEN BY M/S. DEEPAK S ECULARITIES AT THE BEHEST OF THE AO HIMSELF. IT HAS BEEN HELD BY HON BLE DELHI HIGH COURT IN CASE OF SONA ELECTRIC CO. VS. CIT (1984) 1 52 ITR 507 (DEL) THAT SECTION 68 OF THE I.T,. ACT MAKES IT CLEAR THA T THE CREDIT ENTRY CAN BE REJECTED, IF EXPLANATION OFFERED BY THE ASSESSEE IS NOT FOUND 4 ITA NO.157/AGRA/2011 A.Y. 2006-07 SATISFACTORY BY THE AO ON COGENT GROUNDS BASED ON E VIDENCE. WHEN SUCH GROUNDS ARE THEMSELVES BASED ON NO EVIDENCE, T HE QUESTION OF PRESUMPTION DOES NOT ARISE. THE APPELLANT HAS SATI SFACTORILY EXPLAINED THE SOURCE FOR CREDITS/DEPOSITS APPEARING IN HER BANK ACCOUNTS WHICH CANNOT BE REFUTED BY A MERE DISABILI TY ON THE PART OF THE AO ON THE GROUND THAT THE APPELLANT HAS NOT EXP LAINED THE ORIGIN OF ORIGIN AND THE SOURCE OF SOURCE AS WELL. ONCE T HE EXISTENCE OF THE CREDITOR IS PROVED AND SUCH PERSON(S) OWNS THE CRED ITS WHICH HAVE FOUND IN THE BOOKS OF THE APPELLANT, THE ONUS OF TH E APPELLANT STANDS DISCHARGED AND SHE IS NOT FURTHER REQUIRED TO PROVE THE SOURCE FROM WHICH THE CREDITORS COULD HAVE ACQUIRED THE MONEY D EPOSITED WITH HIM EITHER IN TERMS OF SECTION 68 OR ON GENERAL PRINCIP LE. MERELY BECAUSE THE DEPOSITORS EXPLANATION ABOUT THE SOURCE OF MON EY IS NOT ACCEPTABLE TO THE AO AND IN ANY CASE NOT BEEN ENQUI RED BY THE AO HIMSELF ON RECEIPT OF CONFIRMATION FROM THE DEPOSIT OR, IT CANNOT BE PRESUMED THAT THE DEPOSITS MADE BY THE CREDITOR IS MONEY BELONGING TO THE APPELLANT HERSELF. IN THE ABSENCE OF ANY MA TERIAL ON RECORD BROUGHT BY THE A.O. AS S RESULT OF SEARCH OPERATION S OR DURING THE COURSE OF ASSESSMENT PROCEEDINGS TO ESTABLISH THAT THE SOURCES OF THE CREDITORS DEPOSITS FLEW FROM THE APPELLANT, THOSE CASH CREDITS CANNOT BE TREATED AS UNEXPLAINED INCOME OF THE APPELLANT. IN MY VIEW, THE APPELLANT HAS DULY DISCHARGED ONUS CAST ON HER REGA RDING CREDITORS IDENTITY AND CREDITWORTHINESS ALONG WITH GENUINENES S OF THE TRANSACTIONS. FURTHER, AO HAS MADE HUGE ADDITION EXCEEDING RS.70, 00,000/- WITHOUT EVEN MENTIONING THE SECTION OF THE I.T. ACT UNDER WHICH IT IS MADE. BURDEN ON THE APPELLANT AS ENVISAGED U/S 68 IS FOUND TO BE DULY DISCHARGED BY HER. DISCRETION CONFERRED ON TH E AO U/S 69 OF THE I.T. ACT TO TREAT THE SOURCE OF INVESTMENT AS THE I NCOME OF THE APPELLANT, IF THE EXPLANATION OFFERED BY THE APPELL ANT IS NOT FOUND SATISFACTORY, IS TO BE EXERCISED IN A JUDICIAL MANN ER WITH DUE APPLICATION OF MIND KEEPING IN VIEW FACTS AND CIRCU MSTANCES OF THE CASE. AO HAS NOT BROUGHT ANY ADVERSE MATERIAL ON R ECORD BUT HAS PROCEEDED TO MAKE THE ADDITION SOLELY ON THE GROUND THAT THE BROKER HAS NOT STATED THE SOURCE OF AMOUNTS REMITTED TO TH E APPELLANT. THIS CONCLUSION HAS BEEN REACHED BY THE AO WITHOUT ANY J USTIFICATION, WHEN HE WAS REQUIRED TO PROVE TO THE HILT THE THE I MPUGNED TRANSACTIONS ARE BOGUS BEFORE MAKING ADDITION U/S 6 9 OF THE I.T. ACT. 5 ITA NO.157/AGRA/2011 A.Y. 2006-07 3.4 THE APPELLANT HAS ALSO STATED IN HER SUBMISSION S THAT NO FINANCIAL GAIN SHALL ACCRUE HER AND THERE WILL BE N O RESULTANT ESCAPEMENT OF INCOME EVEN IF THE SAID AMOUNT IS ASS ESSED UNDER INCOME FROM OTHER SOURCES. 3.5 IN VIEW OF FACTS ABOVE AND DISCUSSION MADE, AO IS NOT FOUND JUSTIFIED BOTH LEGALLY AND FACTUALLY IN TREATING PA RT OF THE TRANSACTIONS WITH M/S. DEEPAK SECURITIES AS UNEXPLAINED. ACCORD INGLY, ADDITION OF RS.70,14,083/- IS, HEREBY, DELETED. 6. THE LD. DEPARTMENTAL REPRESENTATIVE RELIED UPON THE ORDER OF A.O. AND SUBMITTED THAT THE CASH AND CHEQUES DEPOSITED IN IC ICI AND IDBI BANKS OF RS.70,14,083/- HAS NOT BEEN EXPLAINED. LD. DEPARTM ENTAL REPRESENTATIVE SUBMITTED THAT WITHOUT CONSIDERING THE FACTS RECORD ED BY THE A.O. AS REGARDS CONTENTION OF THE ASSESSEE THAT THERE WAS NO INCRIM INATING DOCUMENTS OR ANY OTHER MATERIAL HAS BEEN FOUND RELATING TO THE ADDITION MA DE BY THE A.O., LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT ORDER OF THE A.O. IS IN ACCORDANCE WITH SECTION 153A OF THE ACT. LD. DEPARTMENTAL REPRESEN TATIVE FURTHER SUBMITTED THAT THE CIT(A) WITHOUT APPRECIATING THE FACTS ALLOWED T ELESCOPING, ACCEPTING THE ASSESSEES EXPLANATION AGAINST THE PROFIT FROM M/S. DEEPAK SECURITY RS.81,94,000/- . LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT T HE ASSESSEE HAS FAILED TO FURNISH ANY EVIDENCE OR RECONCILIATION THAT THE AMOUNT OF R S.81,94,000/- INCLUDES THE AMOUNT OF RS.70,14,083/-. 6 ITA NO.157/AGRA/2011 A.Y. 2006-07 7. AS REGARDS THE NON-MENTIONING OF SECTION IN THE ORDER OF THE A.O., THE LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE A.O. HAS MADE ADDITION UNDER SECTION 68 OF THE ACT AS THE ASSESSEE HAS FAILED TO DISCHARGE THE PRIMARY ONUS TO PROVE THE CREDIT WORTHINESS OF THE CREDITOR WITH DO CUMENTARY EVIDENCE. LD. DEPARTMENTAL REPRESENTATIVE RELIED UPON THE JUDGMEN TS OF APEX COURT IN THE CASE OF ROSHAN DI HATI VS. CIT - 107 ITR 938 (SC), KALE KHAN MOHAMMAD HANIF VS. CIT - 50 ITR 1 (SC) AND SUMATI DAYAL VS. CIT - 214 ITR 801 (SC). 8. THE LD. AUTHORISED REPRESENTATIVE REITERATED THE SUBMISSIONS WHICH WERE MADE BEFORE THE REVENUE AUTHORITIES. LD. AUTHORISE D REPRESENTATIVE SUBMITTED THAT THE A.O. HAS WRONGLY RECORDED THAT AMOUNT RECE IVED FROM M/S DEEPAK SECURITY AGAINST TRANSACTION OF SALE AND PURCHASE O F SHARES REPRESENTS INCOME OF THE ASSESSEE FROM UNEXPLAINED SOURCES. THE A.O. RECORD ED HIS FINDING IN EXTREMELY CASUAL MANNER WITHOUT THERE BEING AN IOTA OF EVIDEN CE TO SUPPORT HIS ALLEGATION. THE A.O. MADE ADDITION PURELY ON THE BASIS OF PRESU MPTION AND SURMISES. HE FURTHER SUBMITTED THAT THE A.O. MADE ADDITION WITHO UT MENTIONING SECTION UNDER WHICH HE MADE THE ADDITION. THE ALTERNATE SUBMISSI ON OF THE LD. AUTHORISED REPRESENTATIVE WAS THAT EVEN IF IT IS ASSUMED THAT PAYMENT OF RS.70,14,083/- AS BEING UNEXPLAINED INCOME, THE SAME BEING NOT ASSESS ABLE AS INCOME FROM SALARY, INCOME FROM HOUSE PROPERTY, INCOME FROM BUSINESS, A INCOME FROM CAPITAL GAINS 7 ITA NO.157/AGRA/2011 A.Y. 2006-07 BUT BEING ASSESSABLE UNDER THE RESIDUAL HEAD OF IN COME FROM OTHER SOURCES WOULD NOT RESULT INTO ANY ESCAPEMENT OF INCOME AS THE INC OME COMPUTED BY ADOPTING ANY OF SUCH COURSE WOULD NOT RESULT IN ENHANCEMENT OF T OTAL INCOME OF THE ASSESSEE AS COMPARED TO THE RETURNED INCOME. 9. ALTERNATIVELY, THE LD. AUTHORISED REPRESENTATIVE REFERRED TO PAGE NOS.1, 2 & 89 OF THE PAPER BOOK AND TRIED TO DEMONSTRATE THAT PROFIT FROM M/S. DEEPAK SECURITY WAS RS.81,94,000/- AND THE SAME HAS BEEN S HOWN AS INCOME FROM BUSINESS. THIS PROFIT OF RS.81,94,000/- INCLUDED P ART AMOUNT RECEIVED FROM D.D. WHICH HAS BEEN TREATED AS UNEXPLAINED BY THE A.O. A ND ADDED RS.70,14,083/-. THE BALANCE COMES TO RS.11,79,917/- WHICH IS IN FACT AS SESSABLE AS INCOMER FROM BUSINESS. RS.70,14,083/- IS ASSESSABLE INCOME FROM OTHER SOURCES. THE NET EFFECT WILL BE NIL. THE RELEVANT ABSTRACT BASED ON WHICH T HE LD. AUTHORISED REPRESENTATIVE HAS DEMONSTRATED IS REPRODUCED BY THE CIT(A) IN HIS ORDER AT PAGE NO.3 AS UNDER :- (A) INCOME FROM SALARIES (NET OF DEDUCTION U/S 16): MASTERMIND CLASSES (P) LTD. RS.84,000/- (B) INCOME FROM BUSINESS (I) LOSS FROM ADROIT FINANCIAL SERVICES (P) LTD. (II) LOSS FROM KASSA FINVEST (P) LTD (III) INTEREST PAID (IV) PROFIT FROM DEEPAK SECURITIES LESS: PART AMOUNT RECEIVED FROM DDS TREATED UNEXPLAINED AND ADDED RS.81,94,000/- RS.70,14,083/- RS.43,06,517/- RS.20,87,481/- RS.2,32,907/- RS.11,79,917/- RS.(-)54,46,988/- (D) INCOME FROM OTHER SOURCES 8 ITA NO.157/AGRA/2011 A.Y. 2006-07 (I) INTEREST RECEIVED FROM ICICI BANK (II) INTEREST RECEIVED FROM IDIBI BANK (III) INTEREST FROM MIS (IV) INTEREST FROM FDRS (V) INTEREST FROM SAVING BANK ACCOUNT (VI) AMOUNT RECEIVED FROM M/S DEEPAK SECURITIES TREATED AS UNEXPLAINED INCOME RS.2,083/- RS.9,328/- RS.27,000/- RS.4,997/- RS.4,354/- RS.70,14,803/- RS.70,61,845/- 10. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THA T M/S. DEEPAK SECURITY HAS CONFIRMED THE PAYMENT OF WHICH COPY HAS BEEN PLACE AT PAGE NO.3 OF ASSESSEES PAPER BOOK. HE SUBMITTED THAT THE STATEMENT OF ACC OUNT OF THE ASSESSEE IN THE BOOKS OF DEEPAK SECURITY WAS ALSO FURNISHED, COPY O F WHICH HAS BEEN PLACED AT PAGE NO.4 TO 7 OF ASSESSEES PAPER BOOK. IT IS ALS O SUBMISSION OF THE LD. AUTHORISED REPRESENTATIVE THAT HOW THE A.O. HAS CALCULATED RS. 70,14,083/-, NO DETAILS OR BASIS HAS NEITHER BEEN GIVEN IN THE A.O.S ORDER NOR POIN TED OUT TO THE ASSESSEE. 11. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PA RTIES AND RECORDS PAUSED. THE FACTS RECORDED BY THE A.O. IS THAT THE THERE AR E ENTRIES OF DEPOSITS OF CASH AND CHEQUES IN THE DENOMINATIONS OF RS.49,000/- AND RS. 54,000/- IN ICICI AND IDBI BANKS. DURING THE COURSE OF HEARING BEFORE US, IT WAS SPECIFICALLY ASKED BY THE BENCH TO THE LD. AUTHORISED REPRESENTATIVE TO FURNI SH THE COPIES OF BANK ACCOUNT OF ICICI AND IDBI BANK ACCOUNT BUT THE SAME WERE NOT F URNISHED. THE COPIES OF ICICI AND IDBI BANK ACCOUNTS WERE CALLED FOR TO VER IFY THE FACT POINTED OUT BY THE LD. AUTHORISED REPRESENTATIVE THAT RS.70,14,083/- I S PART OF RS.81,94,000/-. THE 9 ITA NO.157/AGRA/2011 A.Y. 2006-07 DETAILS OF DEPOSIT OF RS.70,14,083/- WAS NOT POINTE D OUT BY THE ASSESSEE NOR SUCH DETAILS ARE AVAILABLE ON RECORD. HOWEVER, UNLESS C ONTRARY MATERIALS ARE PUT ON RECORD, THE FACT RECORDED BY THE A.O. IS TO BE TAKE N AS CORRECT WHICH IS THAT THE ASSESSEE HAS DEPOSITED CASH AND CHEQUES IN THE DENO MINATION OF RS.49,000/- AND RS.54,000/- TOTALING TO RS.70,14,083/- IN BOTH THE BANK ACCOUNTS. THE CIT(A) WITHOUT APPRECIATING THE FACTS RECORDED BY THE A.O. AND WITHOUT VERIFYING THE BANK ACCOUNTS, DELETED THE ADDITION. THE CIT(A) IS NOT CORRECT IN OBSERVING THAT DURING THE COURSE OF SEARCH, NO INCRIMINATING DOCUMENTS WE RE FOUND, THEREFORE, ADDITION CANNOT BE MADE BECAUSE THE ORDER OF THE A.O. IS IN CONSONANCE WITH PROVISIONS OF SECTION 153A OF THE ACT. THE CIT(A) HAS WRONGLY AC CEPTED ALTERNATE CONTENTION OF THE ASSESSEE AND ALLOWED TELESCOPING BENEFIT AGAINS T THE PROFIT FROM M/S DEEPAK SECURITY OF RS.81,94,000/-. FOR THE PURPOSE OF ACC EPTING THE ALTERNATE CONTENTION OF THE ASSESSEE THAT THE AMOUNT OF RS.70,14,083/- R ECEIVED OUT OF BUSINESS TRANSACTION OF WHICH PROFIT HAS BEEN SHOWN AT RS.81 ,94,000/-, A RECONCILIATION IS REQUIRED FOR THIS PURPOSE. THE ASSESSEE HAS TO EST ABLISH BY POINTING OUT THE RELEVANT ENTRIES THAT THE AMOUNT OF RS.70,14,083/- IS ON ACC OUNT OF PROFIT FROM M/S. DEEPAK SECURITY OF RS.81,94,000. THE ASSESSEE HAS FAILED TO FURNISH SUCH RECONCILIATION BEFORE THE CIT(A) AS WELL AS BEFORE US. UNLESS THE ASSESSEE POINTS OUT OR GETS VERIFIED THAT THIS AMOUNT OF RS.70,14,083/- IS OUT OF TURNOVER OF BUSINESS TRANSACTION FOR WHICH PROFIT OF RS.81,94,000/- HAS BEEN SHOWN, THE TELESCOPING 10 ITA NO.157/AGRA/2011 A.Y. 2006-07 BENEFIT CANNOT BE ALLOWED AND ADDITION CANNOT BE DE LETED. FOR FURNISHING THE RELEVANT EVIDENCE, ONUS IS ON THE ASSESSEE AS IT WA S CONTENTION OF THE ASSESSEE THAT THE AMOUNT OF RS.70,14,083/- WAS OUT OF THE TRANSAC TION OF RS.81,94,000/- BUT THE ASSESSEE HAS FAILED TO DISCHARGE THE ONUS BY NOT FU RNISHING RELEVANT RECORDS AND RELEVANT RECONCILIATION. THE CIT(A) DELETED THE AD DITION ON MERIT WITHOUT CONSIDERING THE CRUX OF THE ASPECT AND WITHOUT APPR ECIATING THE FACTS MERELY MENTIONED THAT M/S. DEEPAK SECURITY IS REGISTERED W ITH SEBI AND OTHERS THAT ONLY PROVES THE IDENTITY AND NOT THE NATURE OF TRANSACTI ON AS HAS BEEN POINTED OUT BY THE A.O. THE HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. KRISHNAVENI AMMAL, 158 ITR 826 (MAD.) HAS HELD THAT THE LAW OF EVIDENC E MANDATES THAT IF THE BEST EVIDENCE IS NOT PLACED BEFORE THE COURT, AN ADVERSE INFERENCE CAN BE DRAWN AGAINST THE PERSON WHO OUGHT TO HAVE PRODUCED IT. IN THAT CASE, THERE WERE CROSSED CHEQUES BUT THEY WERE NOT PRODUCED. SIMILARLY, IN THE CASE UNDER CONSIDERATION, WE ASKED THE ASSESSEE TO FURNISH COPIES OF BANK ACCOUNTS BUT THE SAME WERE NOT PRODUCED. IN THE LIGHT OF THE FACTS OF THE CASE AND FAILURE O N THE PART OF THE ASSESSEE, THE ADDITION MADE BY THE A.O. WHILE MAKING ASSESSMENT U NDER SECTION 153A IS CORRECT AND IN ACCORDANCE WITH LAW. THEREFORE, THE ORDER O F CIT(A) IS SET ASIDE AND RESTORE THE ADDITION OF RS.70,14,083/- MADE BY THE A.O. TH E ADDITION OF RS.70.14,083/- MADE BY THE A.O. IS CONFIRMED. GROUND NO.1 OF REV ENUES APPEAL IS ALLOWED. 11 ITA NO.157/AGRA/2011 A.Y. 2006-07 12. THE SECOND GROUND OF APPEAL IS IN RESPECT OF DE LETION OF ADDITION OF 88,000/- ON ACCOUNT OF HOUSE HOLD EXPENSES. 13. THE A.O. MADE ADDITION OF RS.88,000/- ON ACCOUN T OF HOUSE HOLD EXPENSES. THE CIT(A) HAS DELETED THE SAID ADDITION FOLLOWING HIS ORDERS FOR EARLIER YEARS. 14. THE LD. REPRESENTATIVES OF THE PARTIES SUBMITTE D THAT THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF I.T.A.T., AG RA BENCH IN ITA NO.246/AGRA/2011 VIDE ORDER DATED 31.07.2013. THE RELEVANT FINDING OF I.T.A.T. IS REPRODUCED AS UNDER :- 4. WE HAVE HEARD LD. REPRESENTATIVES OF THE PARTIE S AND RECORDS PERUSED. WE FIND THAT ON IDENTICAL SET OF FACTS ADD ITION HAS BEEN DELETED BY THE CIT(A) IN A.Y. 2006-07 AND THAT ORDER OF THE CIT(A) HAS BEEN CONFIRMED IN ITA NO.344/AGRA/2011 IN THE CASE OF AC IT VS. SMT. JULIE GUPTA ORDER EVEN DATED. THE RELEVANT FINDINGS IS RE PRODUCED AS BELOW :- AT THE OUTSET, THE LD. AUTHORISED REPRESENTATIVE S UBMITTED THAT THIS ISSUE IS SQUARELY COVERED BY THE ORDER OF I.T.A.T., AGRA BENCH IN ITA NOS.155/AGRA/2011 IN THE CASE OF SHRI PRAVEEN GUPTA VIDE ORDER DATED 23.03.2012. THE RELEVANT FI NDING OF I.T.A.T. IS REPRODUCED AS UNDER :- ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE DO N OT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE REVENUE. THE AO PURELY MADE ESTIMATED ADDITION WITHOUT BRINGING ANY MATERIAL AGAINST THE ASSESSEE FOR ESTIMATING HOUSEHOLD EXPEN SES. THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT IN OTHER CASES SIMILAR ADDITIONS HAVE BEEN DELETED, HAS NOT BEEN R EBUTTED THROUGH ANY MATERIAL ON RECORD. IN THE ABSENCE OF ANY MATERIAL ON RECORD IN FAVOUR OF THE REVENUE, WE DO NOT FIND ANY 12 ITA NO.157/AGRA/2011 A.Y. 2006-07 JUSTIFICATION TO INTERFERE WITH THE ORDER OF THE LD . CIT(A). SAME IS CONFIRMED AND THUS, THE APPEAL OF THE REVENUE IS DI SMISSED. NO OTHER POINT IS ARGUED OR PRESSED. IN THE RESULT, T HE APPEAL OF HE REVENUE IN THE CASE OF PRAVEEN GUPTA IS DISMISSED. THE ABOVE FINDING HAS BEEN FOLLOWED BY I.T.A.T. IN THE CASE OF SMT. POONAM GUPTA IN ITA NO.156/AGRA/2011 VIDE ORDE R EVEN DATED. 5. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT THE FACTS OF THE CASE UNDER CONSIDERATION AND THE FACTS OF THE C ASE DECIDED BY I.T.A.T., AGRA BENCH IN ITA NOS.155 & 156/AGRA/2011 IN THE CASE OF SHRI PRAVEEN GUPTA & SMT. POONAM GUPTA ARE IDENTICA L. THE CIT(A) HAS ALSO RELIED UPON HIS ORDER FOR EARLIER YEARS. S INCE THE FACTS ARE IDENTICAL, THEREFORE, TO MAINTAIN CONSISTENCY, WE F OLLOW THE SAID ORDER OF I.T.A.T., AGRA BENCH. IN THE LIGHT OF ABOVE, WE FI ND THAT THE CIT(A) HAS RIGHTLY DELETED THE ADDITION OF RS.1,08,000/- 15. SINCE THE FACTS ARE IDENTICAL, TO MAINTAIN CONS ISTENCY, WE FOLLOW THE ABOVE ORDER OF I.T.A.T., AGRA BENCH AND IN THE LIGHT OF F ACT, ADDITION OF RS.88,000/- DELETED BY THE CIT(A) IS CONFIRMED. GROUND NO.2 OF REVENUES APPEAL IS DISMISSED. 16. IN THE RESULT APPEAL OF THE REVENUE IS PARTLY A LLOWED. (ORDER PRONOUNCED IN THE OPEN COURT) SD/- SD/- (BHAVNESH SAINI) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER PBN/* COPY OF THE ORDER FORWARDED TO: APPELLANT/RESPONDENT/CIT (APPEALS) CONCERNED/CIT CO NCERNED/ D.R., ITAT, AGRA BENCH, AGRA/ GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY