Shri Rajendra Sakharchand Raka, Nashik V. ACIT, Central Circle 1(1), Pune

ITA 1666/PUN/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1053 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 25-03-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 02-09-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S K RASTOGI
• Keywords: Income from undisclosed sources; Search and seizure; Loose papers; Document seized; Earning of tax free income; Corroborative evidences; Bogus loan; Revised return; Documents seized
• Section: 143(3); 153A; 139(5); 147; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE , . . , # BEFORE MS. SUSHMA CHOWLA, JM AND SHRI R.K. PANDA, AM . / ITA NOS.1662 TO 1666/PN/2013 % % / ASSESSMENT YEARS : 2005-06 TO 2009-10 SHRI RAJENDRA SAKHARCHAND RAKA, PROP. RAJENDRA TRADING COMPANY, RAKA MILL COMPOUND, MALEGAON ROAD, SATANA-423 301 DISTRICT : NASHIK PAN NO. ABIPR9078G . / APPELLANT V/S ACIT, CENTRAL CIRCLE-1(1), PUNE . / RESPONDENT . / ITA NOS.1568/PN/2013 % % / ASSESSMENT YEAR 2009-10 DCIT, CENTRAL CIRCLE-1(1), PUNE . / APPELLANT V/S SHRI RAJENDRA SAKHARCHAND RAKA, PROP. RAJENDRA TRADING COMPANY, RAKA MILL COMPOUND, MALEGAON ROAD, SATANA-423 301 DISTRICT : NASHIK PAN NO. ABIPR9078G . / RESPONDENT / APPELLANT BY : SHRI NIKHIL PATHAK / RESPONDENT BY : SHRI S.K. RASTOGI / DATE OF HEARING : 14.07.2015 / DATE OF PRONOUNCEMENT:23.09.2015 2 ITA NOS.1662 TO 1666 & 1568/PN/2013 / ORDER PER R.K. PANDA, AM : ITA NOS. 1662/PN/2013 TO 1666/PN/2013 FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE COMMON ORDER DATED 03-06-2013 OF THE CIT(A)-I, PUNE RELATING TO ASSESSMENT YEARS 2005- 06 TO 209- 10 RESPECTIVELY. ITA NO.1568/PN/2013 FILED BY THE REVENU E IS DIRECTED AGAINST THE ORDER DATED 02-06-2013 OF THE CIT (A)-I, PUNE RELATING TO ASSESSMENT YEAR 2009-10. FOR THE SAKE OF C ONVENIENCE, ALL THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISP OSED OF BY THIS COMMON ORDER. ITA NO.1662/PN/2013 (A.Y. 2005-06) : 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND IS A TRADER. A SEARCH AND SEIZURE ACTION U/ S.132 OF THE I.T. ACT WAS CONDUCTED IN THE MALPANI GROUP OF CASES ON 06-10- 2009 DURING WHICH THE ASSESSEES BUSINESS AND RESIDENTIA L PREMISES WAS ALSO COVERED. IN RESPONSE TO NOTICE U/S.15 3A THE ASSESSEE FILED RETURN OF INCOME DECLARING TOTAL INCOME OF RS.10,97,804/- AS AGAINST THE INCOME OF RS.10,00,303/- DECLAR ED IN THE ORIGINAL RETURN FILED ON 28-10-2005. DURING THE COUR SE OF ASSESSMENT PROCEEDINGS THE AO NOTED THAT SEIZED PAPER NO. 11 TO 13 OF BUNDLE NO.6 SEIZED DURING THE COURSE OF SEARCH ACTIO N AT THE BUSINESS PREMISES OF THE ASSESSEE REVEALED INCRIMINATING NO TINGS. DURING THE POST SEARCH ENQUIRY, ON ANALYSIS OF THE SAID N OTINGS ON THE ABOVE MENTIONED PAGES IT TRANSPIRED THAT THE SAID IN COME PERTAINS TO UNACCOUNTING MONEY LENDING ACTIVITY OF THE AS SESSEE AND AS SUCH THE FIGURES MENTIONED ON PAGES 11 TO 13 OF BUNDLE NO.6 REPRESENTED PRINCIPAL AMOUNTS AND INTEREST CALCULATE D 3 ITA NOS.1662 TO 1666 & 1568/PN/2013 THEREON. IN VIEW OF THE ABOVE, THE AO ASKED THE ASSESSEE TO EXPLAI N AS TO WHY THE UNACCOUNTED AND UNDISCLOSED LOANS GIVEN B Y HIM AS PER THE ENTRIES IN THE BOOKS SHOULD NOT BE TREATED AS UNDISCLOSED INCOME FOR RESPECTIVE YEARS ALONG WITH UNDISCLOSED INTEREST INCOME EARNED THEREUPON. 3. THE ASSESSEE SUBMITTED THAT THERE IS NO TITLE OR NA ME OF ANY PERSON OR DESCRIPTION/NATURE OF ANY NOTHINGS APPEARED ON THE SEIZED PAPERS. EXCEPT THE DATES AND FIGURE WORK THERE IS NOTHING WRITTEN ON THESE SEIZED PAPERS. THESE PAPERS DO NOT H AVE ANY MEANING LIKE WHETHER THE NOTINGS SIGNIFY OR RELATE TO OB TAINING OF MONEY ON INTEREST OR GIVING OF MONEY ON INTEREST OR VIABILIT Y STUDY OF ANY INVESTMENT PROPOSAL AT EXPECTED/GIVEN RATE OF RET URN OR THE EXAMPLE USED TO ILLUSTRATE THE CONCEPT OF COMPOUNDING OF INTEREST TO DAUGHTER. THEREFORE, THESE NOTINGS ARE NOTHING BUT D UMB NOTINGS SINCE NO SUCH TRANSACTIONS EVIDENCED BY THE SE IZED NOTINGS WAS ENTERED INTO WITH ANY PERSON. THEREFORE, THE RE IS NO QUESTION OF TREATING THE FIGURES AS INCOME FROM UNDISCLOSED TRANSACTIONS OF MONEY LENDING OUTSIDE BOOKS. THERE IS NO CORROBORATIVE EVIDENCE. THIS WAS ALSO SUBMITTED DURING TH E COURSE OF SEARCH PROCEEDINGS. IN REPLY TO QUESTION NO.15 OF TH E STATEMENT RECORDED U/S.132(4) THE ASSESSEE HAD ALSO STATED THAT H E IS NOT HOLDING MONEY LENDING LICENSE. 4. HOWEVER, THE AO WAS NOT SATISFIED WITH THE EXPLANATION GIVEN BY THE ASSESSEE. ACCORDING TO THE AO AS PER THE PROV ISIONS OF SECTION 143(4A) IT IS PRESUMED THAT THE CONTENTS OF DOCUMENTS/EVIDENCES FOUND DURING THE COURSE OF SEARCH A CTION ARE TRUE UNLESS PROVEN OTHERWISE. AS PER THE LAW THE ONUS OF PROVING 4 ITA NOS.1662 TO 1666 & 1568/PN/2013 THAT THE SAID DOCUMENTS ARE NOT TRUE IS ON THE SHOULDE RS OF THE ASSESSEE. SINCE THE ASSESSEE IN THE INSTANT CASE HAS FAILED TO DISCHARGE HIS ONUS, THEREFORE, THE AO HELD THAT THE EXPLA NATION GIVEN BY THE ASSESSEE IS NOT ACCEPTABLE. THE AO ANALY SED THE PAPERS. HE NOTED THAT THE FIGURE OF RS.5 LAKHS IS CLEARLY WRITTEN ON PAGE 12 AGAINST THE DATE 09-02-2005, NEXT DATE WRITTE N IS 09-02-2006 AND FIGURE ON PAGE 12 IS RS.1,05,000/- WRITTE N IN FRONT OF THIS DATE WHICH IS NOTHING BUT INTEREST @21% ON RS. 5 LA KHS FOR 12 MONTHS. THE EXPLANATION OF THE ASSESSEE THAT THE SA ID NOTINGS WAS A HYPOTHETICAL EXAMPLE TO TEACH A SCHOOL GOING DAUGH TER ABOUT THE CONCEPT OF COMPOUND INTEREST WAS REJECTED BY THE AO. HE THEREFORE ISSUED A FINAL SHOW CAUSE NOTICE TO THE ASSESSE E THE CONTENTS OF WHICH ARE AS UNDER : VIDE AN ORDER SHEET ENTRY DTD.11/1-/2011 & 20/10/20 11, YOU WERE ASKED TO EXPLAIN AS TO WHY THE UNACCOUNTED AND UNDISCL OSED LOANS GIVEN BY YOU AS NOTED ON PAGE NO.11,12 & 13 OF BUNDL E NO.6 SEIZED DURING THE COURSE OF SEARCH ACTION FROM YOUR BUSINESS PR EMISES SHOULD NOT BE TREATED AS YOUR UNDISCLOSED INCOME FOR RE SPECTIVE YEARS ALONG WITH THE UNDISCLOSED INTEREST INCOME EARNED THER EUPON. HOWEVER, IN RESPONSE, THE EXPLANATION GIVEN BY YOU, I S UNACCEPTABLE, BEING UNSUBSTANTIATED. THEREFORE, THE UNDISCLOSED LOAN S AMOUNTING TO RS.13,00,000/- AND THE INTEREST EARNED BY YOU ON THE SAID LOANS AMOUNTING TO RS.4,84,292/- AS IS EVIDENT FROM PAGE NO. 11,12, & 13 OF BUNDLE NO.6 SEIZED DURING THE COURSE OF SEARCH ACTION FROM YOUR BUSINESS PREMISES ARE PROPOSED TO BE TAXED AS YOUR UNDISC LOSED INCOME FOR RESPECTIVE YEAR(S) AS UNDER : A.Y. PRINCIPAL INTEREST TOTAL UNDISCLOSED INCOME 2005 - 06 RS.5 ,00,000/ - RS.14,384/ - RS.5,14,384/ - 2006 - 07 RS.8,00,000/ - RS.1,46,561/ - RS.9,46,561/ - 2007 - 08 RS. NIL RS.2,91,052/ - RS.2,91,052/ - 2008 - 09 RS.NIL RS.32,295/ - RS.32,295/ - TOTAL RS.13,00,000/ - RS.4,84,292/ - RS.17,84,256/ - 5. THE ASSESSEE REITERATED THE SAME SUBMISSIONS AS MAD E EARLIER. REJECTING THE EXPLANATION GIVEN BY THE ASSESSEE, THE AO MADE AN ADDITION OF RS.5,14,384/- TO THE TOTAL INCOME OF THE 5 ITA NOS.1662 TO 1666 & 1568/PN/2013 ASSESSEE BEING UNACOUNT LOAN OF RS.5 LAKHS ON 09-02-2005 AND UNACCOUNTED INTEREST @21% FOR 50 DAYS AMOUNTING TO RS.1 4,384/-. SIMILAR ADDITIONS WERE MADE TO THE TOTAL INCOME OF THE ASSE SSEE FOR A.Y. 2006-07 TO 2008-09 AS PER THE TABLE BELOW : 6. THE ASSESSEE REITERATED THE SAME SUBMISSIONS BEFORE THE CIT(A). HOWEVER, THE LD.CIT(A) ALSO DID NOT ACCEPT THE CON TENTION OF THE ASSESSEE AND UPHELD THE ADDITION MADE BY THE AO BY OBSERVING AS UNDER : 4.3 I HAVE CONSIDERED THE SUBMISSIONS MADE ON BEHALF OF THE APPELLANT. THE PRIMARY CONTENTION IS THAT THE SEIZED PAPERS ONLY CONTAIN CERTAIN DATES AND AMOUNTS. THERE ARE NO ANY NAMES NOR TITLES NOR ANY NARRATION/DETAILS WRITTEN ON THEM. IT IS THE BASED ON THIS REASONING THAT THE APPELLANT SEEKS TO ARGUE THAT THE P APERS ARE NOTHING BUT DUMB DOCUMENTS. THIS CONTENTION OF THE A PPELLANT IS SEEN TO HAVE NO FORCE; ADMITTEDLY THE APPELLANT IS NOT D ENYING OWNERSHIP OF THE LOOSE PAPERS BEARING PAGE NOS. 11,12,13 OF THE SEIZ E BUNDLE OF DOCUMENTS NO.6. HAVING ACCEPTED OWNERSHIP OF THESE DO CUMENTS IT IS FOR THE APPELLANT TO PROVE THAT THE CONTENTS OF SUCH SEIZED DOCUMENTS ARE NOT TRUE SINCE THE LAW PRESUMES U/S.132(4A) THAT TH E CONTENTS THEREOF ARE TRUE. 4.4. THE OTHER CONTENTION OF THE APPELLANT IS THAT IN RESPONSE TO A SPECIFIC QUESTION, QUESTION NO. 15, RECORDED IN A STATE MENT U/S 132(4) DURING THE COURSE OF SEARCH, APPELLANT HAD STATED THAT THE SAID LOOSE PAPERS DID NOT RELATE TO HIS MEANING THEREBY THAT THE NOTINGS THEREON DID NOT REPRESENT ANY TRANSACTIONS. ON THIS ISSUE IT IS SE EN THAT THE APPELLANT WAS IN THE BUSINESS TRADING OF VARIOUS ITEMS SUC H AS RICE, DAL, SUGAR, OIL, JARDA ETC. THEREFORE HIS CONTENTION THAT THE LOOSE PAPERS DID NOT RELATE TO HIS BUSINESS WOULD ONLY MEAN THAT THE Y DID NOT PERTAIN TO HIS REGULAR BUSINESS MENTIONED ABOVE AND CA NNOT BE INTERPRETED TO MEAN THAT THIS DOES NOT RELATE TO ANY FINANCIAL TRANSACTION UNLESS, THE SAME IS PROVED TO THE CONTRARY. 4.5. THE FINAL CONTENTION IS THAT THE SEARCH CARRIED OUT ON THE BUSINESS PREMISES DID NOT REVEAL ANY CORROBORATIVE EVIDENCES SUC H AS SIGNED CHEQUES, PROMISSORY NOTES, SIGNED MONEY RECEIPTS/LOAN AGR EEMENTS, DIARY OF MONEY LENDING TRANSACTIONS ETC. FOUND WITH T HE APPELLANT. THE APPELLANT ALSO DID NOT HOLD ANY MONEY LENDING PERMIT /LICENSE NOR WERE THE SAME FOUND DURING THE COURSE OF SEARCH. SINCE THE PRESUMPTION LAID DOWN IN THE SECTION 132(4A) IS A REB UTTABLE PRESUMPTION, IN THE LIGHT OF THE APPELLANT'S CONTENT ION THAT THESE PAPERS ARE NOTHING BUT DUMB PAPERS, THE ONUS SHIFTS TO T HE ASSESSING OFFICER TO SUPPORT HIS CASE WITH CORROBORATIVE EVIDENC E. 4.6 THESE CONTENTIONS HAVE BEEN CONSIDERED AND ARE NO T FOUND TO BE VALID. THE SEIZED MATERIAL IN QUESTION HAS BEEN FO UND IN THE APPELLANT'S OWN BUSINESS PREMISES AND IT IS THE APPELLANT WHO IS IN THE 6 ITA NOS.1662 TO 1666 & 1568/PN/2013 POSITION TO EXPLAIN THE IMPORT OF THESE DOCUMENTS. THE APPELLANT, IT IS SEEN, NOT DENYING THE OWNERSHIP OF THE PAPERS IN FACT IN THE SUBMISSIONS MADE TO THE ASSESSING OFFICER DATED 14/10/2011 IT IS ADMITTED THAT THE SEIZED PAPERS BEARING PAGE NOS. 11,1 2,13 FROM LOOSE PAPERS BUNDLE NO.6 SEIZED FROM BUSINESS PREMISES CONTAIN ' CERTAIN ARITHMETICAL CALCULATIONS'. IT IS ALSO EXPLAINED THAT IN HIS ANSWER TO QUESTION NO. 14 OF THE STATEMENT RECORDED U/S 132(4) WHEN REQUIRED TO EXPLAIN THE NOTINGS, IT WAS STATED THAT THE PAPERS D O NOT RELATE TO HIS BUSINESS AND THEY PERTAIN TO THE DISTANT PAST I.E 2006 A ND 2007. FROM THE ABOVE STATEMENT AND FROM HIS ASSERTIONS BEFORE THE A SSESSING OFFICER IT IS CLEAR THAT THE APPELLANT HAS NOT REALLY OFFERED ANY WORTHWHILE EXPLANATION REGARDING THE ENTRIES IN THE LOOSE SHEETS. IT IS THEREFORE DIFFICULT TO ACCEPT THE PROPOSITION BEING ADVANCED THAT THE ONUS OF REBUTTING THE FACT THAT THESE ARE DUMB DOCUM ENTS SHIFTS TO THE ASSESSING OFFICER. 4.7. FROM THE TOTALITY OF THE FACTS AND CIRCUMSTANCE S OF THE CASE AS ALSO THE LEGAL PRECEDENTS ON THE ISSUE IT IS HELD THAT T HE ASSESSING OFFICER WAS CORRECT IN PRESUMING THAT THE ENTRIES ON T HE LOOSE SHEETS BELONG TO THE APPELLANT AND SINCE THEY WERE NOT RECO RDED IN THE REGULAR BOOKS OF ACCOUNTS, THE SAME REPRESENTED HIS UNA CCOUNTED INCOME IN RESPECT OF MONEY LENDING ACTIVITY. IN VIEW OF THE SAME GROUND NOS. 2 TO 6 ARE DISMISSED. 7. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : THE FOLLOWING GROUNDS ARE TAKEN WITHOUT PREJUDICE T O EACH OTHER - ON FACTS AND IN LAW, 1] THE LEARNED CIT(A) ERRED IN CONFIRMING THE AD DITION OF RS. 5,14,384/- BY PLACING RELIANCE ON PAGE NO.12 OF BUN DLE NO. 6 SEIZED DURING THE COURSE OF SEARCH ACTION CONDUCTED ON THE P REMISES OF THE ASSESSEE. 2] THE LEARNED CIT(A) ERRED IN HOLDING THAT AS P ER THE NOTINGS MADE ON THE SEIZED LOOSE PAPER, THE ASSESSEE HAD ADVANCE D LOAN OF RS. 5,00,000/- OUT OF UNACCOUNTED SOURCES AND EARNED INTE REST OF RS. 14,384/- THEREON WHICH WAS NOT OFFERED TO TAX AND HE NCE, ADDITION OF RS. 5,14,384/- WAS TO BE MADE IN THIS YEAR. 3] THE LEARNED CIT(A) ERRED IN HOLDING THAT THE LOOSE PAPER FOUND DURING THE COURSE OF SEARCH WAS BELONGING TO THE ASSESSEE AND HENCE, THE CONTENTS THEREIN MUST BE PRESUMED TO BE TRUE IN VI EW OF THE PRESUMPTION U/S 132( 4A) OF THE ACT AND SINCE THE ASSESSEE WAS NOT ABLE TO OFFER ANY VALID EXPLANATION REGARDING THE N OTINGS ON THE SAID PAPER, THE ADDITION MADE WAS JUSTIFIED. 4] THE LEARNED CIT(A) ERRED IN NOT APPRECIATING THAT THE SAID LOOSE PAPER FOUND DURING THE COURSE OF SEARCH WAS NOTHI NG BUT A DUMB DOCUMENT AND HENCE, NO ADDITION COULD BE MADE ON TH E BASIS OF SUCH DOCUMENT. 7 ITA NOS.1662 TO 1666 & 1568/PN/2013 5] THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED T HAT THE ASSESSEE HAD NOT ADVANCED ANY UNACCOUNTED LOANS AND EVEN THE LEARNED A.O. HAD NOT BROUGHT ON RECORD ANY CORROBORATIVE EVIDENC E IN SUPPORT OF HIS CONTENTION THAT THE ASSESSEE WAS ENGAGED IN THE MONEY LENDING ACTIVITY AND THEREFORE, THE ADDITION MADE OF RS.5,14 ,384/- IS MERELY ON PRESUMPTIONS AND SURMISES AND THE SAME MAY KINDLY BE DELE TED. 6] THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 8. IDENTICAL GROUNDS HAVE BEEN TAKEN BY THE ASSESSEE FOR A.YRS. 2006-07 TO 2008-09. 9. THE LD. COUNSEL FOR THE ASSESSEE STRONGLY CHALLENGED T HE ORDER OF THE CIT(A). REFERRING TO THE DOCUMENTS SEIZED D URING THE COURSE OF SEARCH, COPIES OF WHICH WERE PLACED AT PAGES 18 TO 20 OF THE PAPER BOOK HE SUBMITTED THAT THERE IS NO MENTION O F NAME OF ANY PERSON FROM OR TO WHOM THE ASSESSEE HAD RECEIVED OR GIVEN ANY LOAN. THESE ARE NOTHING BUT ROUGH NOTINGS WHICH IS BEING SAID TO THE DEPARTMENT FROM DAY ONE. HE SUBMITTED THAT NO ADD ITION CAN BE MADE ON THE BASIS OF THESE DOCUMENTS SINCE NO CORRO BORATIVE EVIDENCE WHATSOEVER WAS FOUND BY THE REVENUE THAT THE ASSESSEE HAS INFACT GIVEN ANY LOAN AND RECEIVED INTEREST. HE SUBM ITTED THAT HAD THE ASSESSEE BEEN IN MONEY LENDING BUSINESS SOME EV IDENCE IN THE NATURE OF ANY SECURITY OR PROMISSORY NOTE OR BLANK CHEQUE ETC. WOULD HAVE BEEN FOUND DURING THE COURSE OF SEARCH. HOWE VER, NOTHING OF THAT SORT WAS FOUND. REFERRING TO PAGES 14 TO 18 OF THE PAPER BOOK HE SUBMITTED THAT THE ASSESSEE HAS MADE E LABORATE SUBMISSIONS BEFORE THE LD. CIT(A) ALONG WITH VARIOUS CASE DECISIONS. HOWEVER, THE LD.CIT(A) WITHOUT CONSIDERING THE SUBMISSIONS UPHELD THE ACTION OF THE AO. REFERRING TO TH E DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF BANSAL STR IPES PVT. LTD. VS. ACIT REPORTED IN 99 ITD 177 HE SUBMITTED T HAT THE 8 ITA NOS.1662 TO 1666 & 1568/PN/2013 TRIBUNAL IN THE SAID DECISION HAS HELD THAT IN ABSENCE OF A DEQUATE MATERIAL AS TO NATURE AND OWNERSHIP OF TRANSACTION, UNDISC LOSED INCOME CANNOT BE ASSESSED IN THE HANDS OF THE ASSESEE MERELY BY ARITHMETICALLY TOTALING VARIOUS FIGURES JOTTED DOWN ON LOOS E DOCUMENTS FOUND DURING THE SEARCH. HE ACCORDINGLY SUBM ITTED THAT THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL IS S QUARELY APPLICABLE TO THE FACTS OF THE PRESENT CASE AND THEREFOR E THE ADDITION MADE BY THE AO AND UPHELD BY THE CIT(A) SHOULD BE DELETED. HE FURTHER SUBMITTED THAT IDENTICAL ADDITION HAS BEEN MADE BY THE AO IN OTHER ASSESSMENT YEARS, I.E. A.YRS. 200 6-07 TO 2008-09 AMOUNTING TO RS.9,46,561/-, RS.2,91,052/- AND RS.32,295/- RESPECTIVELY. THEREFORE, FOLLOWING THE SAME REAS ONINGS THE ADDITION MADE BY THE AO AND UPHELD BY THE CIT(A) FOR THE ABOVE YEARS SHOULD BE DELETED. 10. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HA ND STRONGLY SUPPORTED THE ORDER OF THE CIT(A). HE SUBMITTE D THAT AT THE TIME OF SEARCH THE ASSESSEE HAD STATED THAT THESE ARE OLD PAPERS NOT BELONGING TO HIS BUSINESS. HOWEVER, THE OWNE RSHIP OF THE PAPERS WERE NOT DISPUTED. HANDWRITING WAS ALSO NOT DISPUTED. THEREFORE, THE ASSESSEE CANNOT WASH OFF HIS HANDS MERELY BY STATING THAT THESE ARE DUMB DOCUMENTS. 11. AS REGARDS THE SUBMISSION OF THE ASSESSEE BEFORE THE AO AND CIT(A) THAT HE WAS TEACHING SOME COMPOUNDING INTEREST CALCULATION TO HIS DAUGHTER THE LD. DEPARTMENTAL REPRESENTATIVE SUB MITTED THAT THE SAME CANNOT BE ACCEPTED. THE ONUS WAS ON T HE ASSESSEE SINCE SPECIFIC CALCULATION WAS THERE AND THEREFORE THE ASS ESSEE HAS TO EXPLAIN SUCH NOTINGS. IF THE ASSESSEE FAILS TO EXPLAIN T HE 9 ITA NOS.1662 TO 1666 & 1568/PN/2013 NOTINGS, THE PRESUMPTION IS THAT THE ENTRIES ARE CORREC T AND THE ADDITION MADE BY THE AO AND UPHELD BY THE CIT(A) IS THERE FORE JUSTIFIED. 12. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDE RED THE VARIOUS DECISIONS CITED BEFORE US. FROM THE SEIZED DOCUME NTS, COPIES OF WHICH ARE PLACED AT PAGES 18 TO 20 OF THE PAPE R BOOK, WE FIND THAT THERE ARE CERTAIN NOTINGS WITH DATES AND AMOUN TS. HOWEVER, NAME OF ANY PERSON IS NOT WRITTEN IN THESE PAPE RS. THEREFORE, IT IS NOT POSSIBLE TO FIND OUT AS TO WHETHER THE ASSESSEE HAS GIVEN MONEY ON INTEREST AND RECEIVED INTEREST OR HA S OBTAINED LOAN AND GIVEN INTEREST. NO CORROBORATIVE EVIDENCE WHATS OEVER WAS FOUND DURING THE COURSE OF SEARCH THAT THE ASSESSEE HA S GIVEN MONEY ON INTEREST TO SOMEBODY AND HAS RECEIVED INTERES T. NO CORROBORATIVE EVIDENCE IN THE SHAPE OF ANY SECURITY OR P ROMISSORY NOTE OR BLANK CHEQUE WAS FOUND DURING THE COURSE OF SEA RCH. THEREFORE, WE FIND MERIT IN THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT HAD HE GIVEN ANY MONEY ON INTEREST TO SOMEBODY EITHER THE NAME OF THE PERSON WOULD HAVE BEEN MENTIONED ON THE SEIZED DOCUMENT OR SOMEOTHER CORROBORATIVE EVIDENCE SU CH AS ANY SECURITY OR PROMISSORY NOTE OR BLANK CHEQUE WOULD HAVE BEEN FOUND DURING THE COURSE OF SEARCH. 13. WE FIND UNDER SOMEWHAT SIMILAR CIRCUMSTANCE, THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF BANSAL STRIPES PVT. L TD. (SUPRA) HAS HELD AS UNDER (SHORT NOTES) : 10 ITA NOS.1662 TO 1666 & 1568/PN/2013 THERE WAS FORCE IN THE CONTENTION OF THE ASSESSEE THAT THERE WAS NO PROVISION OF LAW UNDER WHICH THE IMPUGNED ADDITION C OULD BE MADE TO THE INCOME DECLARED BY THE ASSESSEE. IT IS TRITE LAW TH AT IF AN INCOME NOT ADMITTED BY AN ASSESSEE IS TO BE ASSESSED IN THE HANDS O F THE ASSESSEE, THE BURDEN TO ESTABLISH THAT THERE IS SUCH INCOM E CHARGEABLE TO TAX IS ON THE ASSESSING OFFICER. WITH A VIEW TO ASSIST THE ASSESSING OFFICER AND TO REDUCE THE RIGOUR OF THE BURDEN THAT LAY UPON THE ASSESSING OFFICER, PROVISIONS OF SECTIONS 68,69 AND 69D HAV E PROVIDED FOR CERTAIN DEEMING PROVISIONS, WHERE AN ASSUMPTION OF INCOME IS RAISED IN THE ABSENCE OF SATISFACTORY EXPLANATION FROM THE ASSESSEE. AS THESE ARE DEEMING PROVISIONS, THE CONDITIONS PRECEDENT FOR INVOKING SUCH PROVISIONS ARE REQUIRED TO BE STRICTLY CONSTRUED. THE FACTS AND CIRCUMSTANCES GIVING RISE TO THE PRESUMPTION HAVE TO BE ESTABLISHED WITH REASONABLE CERTAINTY. THE ASSESSING OFFICER CANNOT FIRST MAKE CERTAIN CONJECTURES AND SURMISES AND THEREAFTER APPLY THE DEEMING PROVISIONS BASED ON SUCH CONJECTURES AND SURMISES. IN THE ABSENCE OF ADEQUATE MATERIAL AS TO THE NATURE AND OWNERSHIP OF T HE TRANSACTION, UNDISCLOSED INCOME COULD NOT BE ASSESSED IN THE HANDS OF T HE ASSESSEE MERELY BY ARITHMETICALLY TOTALING VARIOUS FIGURES JOT TED DOWN ON THE LOOSE DOCUMENTS. IN OTHER WORDS, FOR THE PURPOSE OF RESO RTING TO DEEMING PROVISIONS, DUMB DOCUMENTS OR DOCUMENTS WITH NO CERTAINTY HAVE NO EVIDENTIARY VALUE. AFTER CONSIDERATION OF T HE MATTER, THE CONTENTIONS OF THE ASSESSEE HAD TO BE AGREED WITH. THE IMPUGNED ADDITION HAD BEEN MADE BY THE ASSESSING OFFICER ON GROS SLY INADEQUATE MATERIAL. THE SAME WAS, THEREFORE, DIRECTED TO BE DELETED. 14. SINCE IN THE INSTANT CASE THERE IS NO OTHER MATERIAL CORROBORATING THE NOTINGS ON THE SEIZED DOCUMENTS AND THE ASSEESEE WAS DENYING FROM THE VERY FIRST DAY THAT THESE ARE ONLY SOME CALCULATION OF COMPOUNDING INTEREST BEING TAUGHT TO H IS DAUGHTER, THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT THE ADDITION MADE BY THE AO AND UPHELD BY THE CIT(A) IS NOT J USTIFIED UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. WE ACCO RDINGLY SET ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE AO TO DELETE THE ADDITION MADE IN A.Y. 2005-06. FOR THE SAME REASONINGS T HE ADDITION MADE BY THE AO AND UPHELD BY THE CIT(A) IN A.YRS. 2006- 07 TO 2008-09 AMOUNTING TO RS.9,46,561/-, RS.2,91,052/- AN D RS.31,205/- RESPECTIVELY ARE ALSO DIRECTED TO BE DELETED. THE APPEALS FILED BY THE ASSESSEE FOR A.YRS. 2005-06 TO 2008- 09 ARE ACCORDINGLY ALLOWED. 11 ITA NOS.1662 TO 1666 & 1568/PN/2013 ITA NO. 1666/PN/13 & ITA NO.1568/PN/13 (A.Y. 2009-10 ) : 15. THE LD. COUNSEL FOR THE ASSESSEE AT THE TIME OF HEAR ING DID NOT CHALLENGE THE GROUNDS OF APPEAL NO.1 TO 4 FOR WHICH TH E LD. DEPARTMENTAL REPRESENTATIVE HAS NO OBJECTION. ACCORDING LY, THE ABOVE GROUNDS ARE DISMISSED AS NOT PRESSED. 16. GROUNDS OF APPEAL NO. 5 TO 7 BY THE ASSESSEE RELATES TO FRESH CLAIM MADE IN THE PROCEEDINGS U/S.153A ON ACCOUNT OF CAPIT AL GAIN ON SALE OF LAND. 17. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS A TRADER AND PROPRIETOR OF RAJENDRA TRADING COMPANY AT SATANA, N ASHIK AS MENTIONED IN THE PRECEDING PARAGRAPHS. A SEARCH U/S.132 OF THE I.T. ACT WAS CARRIED OUT IN THE CASE OF MALPANI GROUP OF C ASES ON 06-10-2009 DURING WHICH THE PREMISES OF THE ASSESSEE WA S ALSO COVERED. IN RESPONSE TO NOTICE U/S.153A ON 31-08-2011 THE ASSESSEE FILED THE RETURN ON 23-09-2011 DISCLOSING TOTAL IN COME OF RS.22,81,779/- WHICH IS THE SAME FIGURE OF INCOME AS SHOWN IN THE ORIGINAL RETURN FILED ON 28-09-2009. HOWEVER, THE ASSESSEE FILED A REVISED RETURN OF INCOME ON 11-10-2011 DISCLOSING TOTAL IN COME OF RS.14,32,090/- AFTER CLAIMING EXEMPTION OF PROFIT ON SALE OF AGRICULTURAL LAND U/S.2(14) WHICH HAD NOT BEEN CLAIMED INADVERTENTLY IN THE ORIGINAL RETURN AS WELL AS RETURN FILED IN RESPONSE TO NOTICE U/S.153A. THE AO COMPLETED THE ASSE SSMENT ON TOTAL INCOME OF RS.42,85,144/-. IN THE SAID ASSESSMENT, T HE AO HELD THAT SINCE THE ASSESSEE HAS NEITHER FILED REVISED RET URN BEFORE THE SEARCH NOR AFTER THE SEARCH WHEN HE HAD OPPORTUN ITY TO DO SO AND SINCE THE SEARCH ASSESSMENT PROCEEDINGS ARE NOT FO R THE BENEFIT OF THE ASSESSEE, THEREFORE, THE ASSESSEE IS NOT JU STIFIED TO 12 ITA NOS.1662 TO 1666 & 1568/PN/2013 DERIVE ANY BENEFIT OUT OF SAID SEARCH ASSESSMENT PROCEED INGS. HE, THEREFORE, REJECTED THE CLAIM OF THE ASSESSEE THAT THE P ROFIT ON SALE OF AGRICULTURAL LAND WHICH IS EXEMPT U/S.2(14) WAS INADVERTENT LY ADDED TO THE TOTAL INCOME IN THE ORIGINAL RETURN AS WELL A S RETURN FILED IN RESPONSE TO NOTICE U/S.153A. 18. BEFORE CIT(A) IT WAS SUBMITTED THAT WHILE FILING THE ORIGINA L RETURN THE ASSESSEE HAD INADVERTENTLY OFFERED TO TAX THE CAPITA L GAIN ON SALE OF AGRICULTURAL LAND OF RS.8,49,689/- EVEN THOUGH THE SAME WAS EXEMPT U/S.2(14) OF THE ACT. IT WAS SUBMITTED THAT A S PER THE PROVISIONS OF SECTION 153A, THE AO IS BOUND TO ASSESS THE TOTAL INCOME OF THE ASSESSEE FOR THE EARLIER 6 YEARS. THEREFORE , EVEN IN THE PROCEEDINGS U/S.153A, THE AO IS BOUND TO ASSESS THE CORRECT INCOME OF THE ASSESSEE. FURTHER, ASSESSMENT U/S.143(3) H AS NOT BEEN COMPLETED FOR THIS YEAR AND THEREFORE IN THE ASSESS MENT PROCEEDINGS U/S.153A FOR THE IMPUGNED ASSESSMENT YEAR, T HE ISSUES ARE OPEN FOR CONSIDERATION AND THEREFORE THE AO W AS NOT JUSTIFIED IN REJECTING THE CLAIM OF THE ASSESSEE. IT WAS FU RTHER SUBMITTED THAT IT IS NOT A CASE WHERE THE ASSESSEE HAS MADE ANY NEW CLAIM AT THE TIME OF ASSESSMENT U/S.153A. IT HAS ME RELY REQUESTED THAT RECTIFICATION OF AN INADVERTENT MISTAKE CO MMITTED AT THE TIME FILING OF THE RETURN IN RESPONSE TO NOTICE U/S.153A BE DONE. 19. HOWEVER, THE LD.CIT(A) WAS ALSO NOT CONVINCED WITH THE ARGUMENTS ADVANCED BY THE ASSESSEE. ACCORDING TO HER THE NEW SEARCH PROVISIONS NAMELY SECTIONS 153A, 153B AND 153C W ERE INTRODUCED BY THE FINANCE ACT, 2003 W.E.F. 01-06-2003 AND PROVIDE A SPECIAL PROCEDURE FOR ASSESSMENT OR REASSESSMENT OF T HE TOTAL 13 ITA NOS.1662 TO 1666 & 1568/PN/2013 INCOME OF AN ASSESSEE OR PERSON IN WHOSE CASE A SEARCH IS INITIATED U/S.132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY AS SETS ARE REQUISITIONED U/S.132A AFTER 31-05-2003. THE BASIS FOR ISSU ANCE OF NOTICE AS PROVIDED U/S.153A(1)(A) IS THE INITIATION OF SEARC H WHICH WHEN READ IN ASSOCIATION WITH SECTION 132(1) ARISES WHEN TH E DGIT/DIT AND OTHER AUTHORITIES SPECIFIED THEREIN HAVE RE ASON TO BELIEVE THAT THE PERSON BEING SEARCHED IS IN POSSESSION O F SUCH MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLES OR THINGS REPRESENTING EITHER WHOLLY OR PARTLY INCOME OR PROPERTY WHICH HAS NOT BEEN OR WOULD NOT BE, DISCLOSED FOR THE PURPOSES OF I.T. ACT, 1961. THE PURPOSE OF THE CONSEQUENTIAL ASSESSMENT OR REASSESSMENT U/S 153A IS THEREFORE TO BRING TO TAX INCOME WHICH HAS NOT BEEN DISCLOSED SO FAR BY SUCH A PERSON. IT CAN NOT BE INVOKED IN ORDER TO MAKE FRESH CLAIMS WHICH ARE ALREADY TH E SETTLED MATTER IN ASSESSMENT PROCEEDINGS. ACCORDING TO HER THE PURPOSE BEHIND ENACTMENT OF SEC. 147 WHICH IS TO BRING TO TAX INCO ME ESCAPING ASSESSMENT AND SEC. 153A WHICH IS TO BRING TO T AX HITHERTO UNDISCLOSED INCOME, IS BASICALLY TO PROTECT THE INT EREST OF REVENUE AND TO SEE THAT THE ASSESSEE IS CHARGED THE CORRECT TAX ON HIS TAXABLE INCOME. THE PROCESS OF REASSESSMENT CANNOT B E INTERPRETED TO INCLUDE FRESH CLAIMS WHICH ARE ALREADY THE SUBJECT MATTER OF SETTLED ASSESSMENT PROCEEDINGS. SHE REFERRED T O THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF SUN EN GINEERING WORKS PVT. LTD. REPORTED IN 198 ITR 297 WHERE IT HAS BE EN HELD IN THE CONTEXT OF 148 PROCEEDINGS THAT SINCE THE SAME AR E INVOKED TO PROTECT INTEREST OF REVENUE, THE ASSESSEE CANNOT BE PE RMITTED TO REVIEW SETTLED MATTERS IN THE GUISE OF REASSESSMENT. 14 ITA NOS.1662 TO 1666 & 1568/PN/2013 20. RELYING ON VARIOUS DECISIONS SHE HELD THAT WHERE THE ASSESSMENTS DO NOT ABATE, I.E. WHERE THE PROCEEDINGS U/ S 143(1) OR 143(3) HAVE ATTAINED FINALITY, THE INCOME ALREADY ASSESSED TH EREIN HAS TO BE REASSESSED U/S 153A PROCEEDINGS. IN ADDITION TO THE INCOME ALREADY ASSESSED, ANY 'UNDISCLOSED INCOME' ARISING O UT OF INCRIMINATING SEIZED MATERIALS WOULD ALSO FORM PART OF THE COMPUTATION OF TOTAL INCOME. SHE NOTED THAT THE CLAIM FOR EXEMPTION OF CAPITAL GAINS ARISING OUT OF SALE OF AGRICULTURAL LA ND HAS NEITHER BEEN MADE IN THE RETURN FILED IN RESPONSE TO SEC. 153A, NOR IN THE ORIGINAL RETURN. NO FACTS RELATING TO THE, SALE O F THE IMPUGNED AGRICULTURAL LAND HAVE BEEN FOUND DURING THE SEAR CH NOR ARE THEY DISCUSSED IN THE ASSESSMENT ORDER. THE ASSES SEES CLAIM FOR SUCH EXEMPTION IS NOT BASED ON ANY INCRIMINATING MATER IAL FOUND DURING THE SEARCH. THERE IS NO CHANGE IN THE FACTUA L POSITION BEFORE SEARCH AND AFTER THE SEARCH. THEREFORE, UNLESS TH ERE IS SOME INCRIMINATING MATERIAL FOUND DURING SEARCH, THE ASSESSEE IS PROHIBITED FROM MAKING A FRESH CLAIM THAT DOES NOT ARISE FRO M ANY SEIZED INCRIMINATING MATERIAL THAT IS FOUND DURING SEARCH. ACCORDINGLY, FOLLOWING THE JUDICIAL PRECEDENTS DISCUSSED IN T HE PRECEDING PARAGRAPHS, THE A.O. .WHILE PASSING THE INDEPENDE NT ASSESSMENT ORDER UNDER SECTION 1S3A READ WITH SECTION 143 (3) OF THE I.T. ACT COULD NOT HAVE DISTURBED THE ASSESSMENT/REASSESS MENT ORDER WHICH HAS ATTAINED FINALITY, UNLESS THE MATERIALS GATHE RED IN THE COURSE OF THE PROCEEDINGS UNDER SECTION 153A OF THE INCOME- TAX ACT ESTABLISH THAT THE INCOME DETERMINED UNDER THE FINALIZED ASSESSMENT/REASSESSMENT WERE CONTRARY TO THE FACTS U NEARTHED DURING THE COURSE OF 153A PROCEEDINGS. SHE ACCORDINGLY HELD THAT 15 ITA NOS.1662 TO 1666 & 1568/PN/2013 THE ASSESSEE IS NOT CORRECT IN LAW IN CLAIMING THE EXEMPT ION FOR THE FIRST TIME IN A RETURN U/S.153A. 21. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US. 22. THE LD. COUNSEL FOR THE ASSESSEE STRONGLY OBJECTED TO THE ORDER OF THE CIT(A). HE SUBMITTED THAT THE SEARCH TOOK PLACE ON 06-10-2009. SINCE THE ASSESSEE HAS ALREADY FILED THE RET URN OF INCOME ON 28-09-2009 HE COULD HAVE VERY WELL FILED A REVISE D RETURN ON OR BEFORE 31-03-2010 HAD THE SEARCH NOT TA KEN PLACE. HOWEVER, SINCE THE SEARCH TOOK PLACE THE ASSESSEE WAS PRECLUDED FROM FILING ANY REVISED RETURN AND HE FILED THE RETURN IN RES PONSE TO NOTICE U/S.153A. 23. REFERRING TO PROVISIONS OF SECTION 139(5) HE SUBMITTED THAT THE ASSESSEE COULD HAVE FILED A REVISED RETURN AT ANY TIM E BEFORE EXPIRY OF ONE YEAR FROM THE END OF THE RELEVANT ASSESSME NT YEAR OR BEFORE THE COMPLETION OF THE ASSESSMENT WHICHEVER IS EAR LIER. REFERRING TO THE DECISION OF THE PUNE BENCH OF THE TRIBUNA L IN THE CASE OF B.G. SHIRKE CONSTRUCTION VS. ACIT VIDE ITA NO.727 TO 730/PN/2012 ORDER DATED 31-10-2013 FOR A.YRS. 2003-04 AND 2006-07 TO 2008-09 HE SUBMITTED THAT THE TRIBUNAL HAS HELD THAT THE ASSESSEE WAS COMPETENT TO RAISE A FRESH CLAIM IN THE CONTEXT OF THE ORIGINAL JURISDICTION VESTED WITH THE AO THOUGH IT WAS NOT RAISED IN THE RETURNS OF INCOME ORIGINALLY FILED. THE LD. COUN SEL FOR THE ASSESSEE DREW THE ATTENTION OF THE BENCH TO THE FO LLOWING OBSERVATION OF THE TRIBUNAL AT PARA 12 AND 13 OF THE ORDER : 12. NOW, IN SO FAR AS THE ASSESSMENTS FOR ASSESSMENT YEARS 200 7- 08 AND 2008-09 ARE CONCERNED, THE ORIGINAL ASSESSMENTS W ERE 16 ITA NOS.1662 TO 1666 & 1568/PN/2013 PENDING ON THE DATE OF INITIATION OF SEARCH, AND THE SAME STAND ABATED IN TERMS OF THE SECOND PROVISO TO SECTION 153A(1) OF TH E ACT. FOLLOWING THE REASONING LAID DOWN IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD. (SUPRA), IN SO FAR AS ASSESSMENT YEARS 2007-0 8 AND 2008-09 ARE CONCERNED, THE ASSESSING OFFICER RETAINS THE ORIGINAL JURISDICTION AS WELL AS JURISDICTION CONFERRED ON HIM U/S 153A OF THE ACT. IN THIS CONTEXT, THE PRELIMINARY ISSUE IS AS TO WH ETHER THE SCOPE OF ASSESSMENTS U/S 153A(1)(B) OF THE ACT FOR ASSESSMENT YEARS 20 07-08 AND 2008-09 CAN INCLUDE CONSIDERATION OF ASSESSEES PLEA TO EXCLUDE INCOME ON ACCOUNT OF RETENTION MONEY, CONSIDERING TH E FACT THE RETURNS OF INCOME FILED BY THE ASSESSEE FOR ASSESSMENT YEAR S 2007-08 AND 2008-09 U/S 139(1) OF THE ACT DID NOT CONTAIN A NY SUCH CLAIM. IN THE ASSESSMENTS U/S 153A(1)(B) OF THE ACT, ASSESSEE CLAIMED T HAT INCOME ON ACCOUNT OF RETENTION MONEY BE EXCLUDED IN THE YEARS WHEN THE CUSTOMERS HAD WITHHELD THE RETENTION MONEY AND IN STEAD TAX IT IN THE YEAR OF ITS ACTUAL RECEIPT. NO DOUBT, THE SAID C LAIM DOES NOT PERTAIN TO ANY INCRIMINATING MATERIAL FOUND IN THE COURSE OF SEARCH, SO HOWEVER, ON ACCOUNT OF THE FACT THAT THE ASSESSING OFF ICER RETAINS HIS ORIGINAL JURISDICTION AS WELL IN THE ASSESSMENTS FOR THE YEARS 2007-08 AND 2008-09 TO BE MADE U/S 153A(1)(B) OF THE ACT, IN OUR CONSIDERED OPINION, AS THE FOLLOWING DISCUSSION WOULD SO, SUCH A CL AIM THOUGH MADE FOR THE FIRST TIME IN THE IMPUGNED ASSESSMENT PROC EEDING, WOULD FALL WITHIN THE AMBIT AND SCOPE OF IMPUGNED ASSESSMENT C ARRIED OUT U/S 153A(1)(B) OF THE ACT. PERTINENTLY, THE ORIGINA L JURISDICTION VESTED WITH THE ASSESSING OFFICER FOR THE ASSESSMENT YEARS 2007-08 AND 2008-09 EMPOWERS HIM TO CONSIDER THE IMPUGNED CLAIM; AND, TO PUT IT IN OTHER WORDS, ASSESSEE WAS COMPETENT TO RAISE SUCH A FRESH CLAIM IN THE CONTEXT OF THE ORIGINAL JURISDICTION VESTED WITH THE ASSESSING OFFICER, THOUGH IT WAS NOT RAISED IN THE RETURNS OF IN COME ORIGINALLY FILED. 13. WE MAY ALSO CONSIDER THIS FROM ANOTHER ANGLE. AS O N THE DATE OF INITIATION OF SEARCH I.E. 18-12-2008, THE RETURNS OF INCOME FILED BY ASSESSEE U/S 139(1) OF THE ACT FOR ASSESSMENT YEARS 2007-08 A ND 2008-09 WERE PENDING FOR ASSESSMENT AND THE IMPUGNED CL AIMED WAS NOT MADE IN THE RETURNS OF INCOME ORIGINALLY FILED. SO, HOWEVER, U/S 139(5) OF THE ACT, ASSESSEE WAS COMPETENT TO FURNISH A RE VISED RETURN AND MAKE SUCH A CLAIM, AND THUS THE ASSESSING OFFICER WAS REQUIRED TO ENTERTAIN SUCH A CLAIM IN THE COURSE OF EXERCISING HIS ORIGINAL JURISDICTION TO MAKE AN ASSESSMENT U/S 143(3) OF THE ACT. NOW, CONSEQUENT TO SEARCH ACTION, FOR ASSESSMENT YEARS 2007-08 AND 2008- 09, ASSESSING OFFICER NOT ONLY ACQUIRES JURISDICTION TO M AKE ADDITIONS BASED ON THE INCRIMINATING MATERIAL BUT ALSO RETAINS T HE ORIGINAL JURISDICTION, AS EXPLAINED BY THE SPECIAL BENCH OF TR IBUNAL IN THE CASE ALL CARGO GLOBAL LOGISTICS LTD. (SUPRA). THUS, THE ENSU ING ASSESSMENTS U/S 153A(1)(B)OF THE ACT FOR ASSESSMENT YEARS 2007-08 AND 2008-09 WOULD ENABLE THE ASSESSING OFFICER TO CONSIDER THE IMPUG NED CLAIM WHICH HAS BEEN JUSTIFIABLY MADE BY THE ASSESSEE. CONSIDER ING THE ENTIRETY OF CIRCUMSTANCES AND IN LAW, WE, THEREFORE, HOLD THAT IN SO FAR AS THE ASSESSMENTS FOR THE ASSESSMENT YEARS 2007-08 AND 2008-0 9 ARE CONCERNED, THE INCOME-TAX AUTHORITIES ERRED IN NOT E NTERTAINING THE IMPUGNED CLAIM OF THE ASSESSEE MERELY BECAUSE IT WAS MAD E IN THE COURSE OF AN ASSESSMENT U/S 153A(1)(B) OF THE ACT AND WAS NOT MADE IN THE RETURNS OF INCOME ORIGINALLY FILED U/S 139(1) OF THE ACT. 17 ITA NOS.1662 TO 1666 & 1568/PN/2013 HE ACCORDINGLY SUBMITTED THAT THE MATTER MAY BE REST ORED TO THE FILE OF THE AO TO DECIDE THE ISSUE ON MERIT. 24. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HA ND SUPPORTED THE ORDER OF THE CIT(A). HE SUBMITTED THAT THE NOTICE U/S.153A WAS ISSUED ON 31-08-2011. THE ASSESSEE FILED THE RETURN OF INCOME ON 23-09-2011 AND REVISED RETURN ON 11-20-20 11. THEREFORE, THE REVISED RETURN FILED IS BEYOND TIME LIMIT SINCE THE ASSESSEE COULD HAVE FILED THE REVISED RETURN ON OR BEFORE 31-03- 2010. HE, HOWEVER, SUBMITTED THAT NEITHER THE AO NOR TH E CIT(A) HAS DECIDED THE ISSUE ON MERIT. HOWEVER, SINCE THE LD.CIT (A) HAS DECIDED THE ISSUE AGAINST THE ASSESSEE ON LEGAL POINT, THE REFORE, THE SAME SHOULD BE UPHELD AND THE GROUNDS RAISED BY THE AS SESSEE SHOULD BE DISMISSED. 25. THE LD. COUNSEL FOR THE ASSESSEE IN HIS REJOINDER SUB MITTED THAT THE AO HAS ISSUED THE NOTICE U/S.153A ON 31-08-20 11. THEREFORE, UNLESS AND UNTIL THE NOTICE WAS ISSUED THE ASSE SSEE COULD NOT HAVE FILED THE RETURN IN RESPONSE TO SUCH NOTIC E SINCE A SEARCH HAD TAKEN PLACE. THEREFORE, THE CONSEQUENCE O F PROVISIONS OF SECTION 139 WILL FOLLOW. REFERRING TO THE DECISION OF THE H ONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. PRUTHVI BROKERS AND SHAREHOLDERS PVT. LTD. REPORTED IN 349 ITR 336 HE SUBMIT TED THAT THE HONBLE HIGH COURT IN THE SAID DECISION HAS HELD THAT AN ASSESSEE IS NOT ONLY ENTITLED TO RAISE ANY ADDITIONAL LEGAL SUBMISSIONS BEFORE THE APPELLATE AUTHORITIES BUT IS ALSO ENT ITLED TO RAISE ADDITIONAL CLAIMS BEFORE THEM. THE APPELLATE AUTHORITIE S HAVE THE DISCRETION TO PERMIT SUCH ADDITIONAL CLAIMS TO BE RAISED . THERE MAY BE SEVERAL FACTS JUSTIFYING REASONS OF A NEW PLEA IN A N APPEAL 18 ITA NOS.1662 TO 1666 & 1568/PN/2013 AND EACH CASE MUST BE CONSIDERED ON ITS OWN FACTS. HE ACCORDINGLY SUBMITTED THAT THE MATTER MAY BE RESTORED TO THE FILE O F THE AO WITH A DIRECTION TO DECIDE THE ISSUE ON MERIT. 26. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND CIT(A) AND THE P APER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED TH E VARIOUS DECISIONS CITED BEFORE US. THE ONLY DISPUTE TO BE DECIDED IN THE IMPUGNED GROUNDS IS THE ADMISSIBILITY OF A NEW CLAIM MAD E BY THE ASSESSEE IN THE REVISED RETURN FILED IN RESPONSE TO N OTICE U/S.153A. ADMITTEDLY, THE ASSESSEE HAS FILED HIS ORIGINAL RET URN OF INCOME ON 28-09-2009. THE SEARCH TOOK PLACE ON 06-10- 2009. THE NOTICE U/S.153A WAS ISSUED ON 31-08-2011 AND THE A SSESSEE FILED THE RETURN IN RESPONSE TO NOTICE U/S.153A ON 23-09- 2011. THE ASSESSEE REVISED SUCH RETURN WHICH WAS FILED IN RESPO NSE TO NOTICE U/S.153A ON 11-10-2011 WHEREIN FOR THE FIRST TIME IT WAS STATED THAT PROFIT ON SALE OF AGRICULTURAL LAND AMOUNTING TO RS.8,49,689/- IS EXEMPT U/S.2(14) OF THE I.T. ACT. THE AO RE JECTED THE CLAIM OF THE ASSESSEE ON THE GROUND THAT THE SEARC H PROCEEDINGS ARE NOT FOR THE BENEFIT OF THE ASSESSEE AND HENCE THE CLAIM MADE BY THE ASSESSEE IN THE REVISED RETURN FILED AFT ER THE SEARCH IS NOT ALLOWABLE IN LAW. WE FIND THE LD.CIT(A) UPHELD TH E ACTION OF THE AO FOR WHICH THE ASSESSEE IS IN APPEAL BEFORE US. 27. WE FIND THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF B.G. SHIRKE CONSTRUCTION (SUPRA) HAS HELD THAT SUCH A CLAIM CAN BE MADE IN THE COURSE OF AN ASSESSMENT U/S.153A(1)(B) OF THE A CT WHICH WAS NOT MADE IN THE RETURNS OF INCOME ORIGINALLY FILED U/S.139(1) OF THE ACT. IN THAT CASE A SEARCH AND SEIZURE ACTION 19 ITA NOS.1662 TO 1666 & 1568/PN/2013 U/S.132(1) OF THE ACT WAS CONDUCTED IN THE CASE OF THE AS SESSEE ON 18-12-2008 AND AS A CONSEQUENCE NOTICES U/S.153A(1) OF T HE ACT WERE ISSUED TO THE ASSESSEE FOR A.YRS. 2003-04 AND 2006 -07 TO 2008-09. IN THE ASSESSMENTS FINALIZED U/S.153A R.W.S 143( 3) OF THE ACT, THE AO REFUSED TO ENTERTAIN ASSESSEES CLAIM FO R EXCLUDING FROM INCOME, THE AMOUNT OF RETENTION MONEY WITHHELD BY THE CONTRACTEE IN THE YEAR IN WHICH SUCH AMOUNT IS RETAINED AND INSTEAD TO TAX IT IN THE YEAR OF ITS ACTUAL RECEIPT. THE A SSESSEE WAS UNSUCCESSFUL BEFORE THE CIT(A). ON FURTHER APPEAL BY THE A SSESSEE THE TRIBUNAL ELABORATELY DISCUSSED THE ISSUE AND HELD THA T WHERE THE ORIGINAL ASSESSMENTS WERE PENDING ON THE DATE OF INIT IATION OF SEARCH AND THE SAME STAND ABATED IN TERMS OF SECOND P ROVISO TO SECTION 153A(1) OF THE ACT AND THE AO RETAINS THE ORIGINA L JURISDICTION AS WELL AS JURISDICTION CONFERRED ON HIM U/S.153A OF THE ACT. THE ORIGINAL JURISDICTION VESTED WITH THE AO FOR A .YRS. 2007-08 AND 2008-09 EMPOWERS HIM TO CONSIDER THE IMPUG NED CLAIM AND TO PUT IT IN OTHER WORDS THE ASSESSEE WAS C OMPETENT TO RAISE SUCH A FRESH CLAIM IN THE CONTEXT OF THE ORIGINAL JURIS DICTION VESTED WITH THE AO THOUGH IT WAS NOT RAISED IN THE RETU RN OF INCOME ORIGINALLY FILED. 28. THE TRIBUNAL ALSO CONSIDERED THE ISSUE FROM ANOTHER ANGLE. IT WAS HELD THAT ON THE DATE OF INITIATION OF SEARCH, I.E. O N 18-12-2008 THE RETURNS OF INCOME FILED BY THE ASSESSEE U /S.139(1) FOR A.YRS. 2007-08 AND 2008-09 WERE PENDING FOR ASSESSME NT AND THE IMPUGNED CLAIM WAS NOT MADE IN THE RETURNS OF INCOM E ORIGINALLY FILED. HOWEVER, THE ASSESSEE WAS COMPETENT TO FUR NISH A REVISED RETURN U/S.139(5) AND MAKE SUCH A CLAIM AND THUS THE AO WAS REQUIRED TO ENTERTAIN SUCH A CLAIM IN THE COURSE OF EXERCISING 20 ITA NOS.1662 TO 1666 & 1568/PN/2013 HIS ORIGINAL JURISDICTION TO MAKE ASSESSMENT U/S.143(3) OF TH E ACT. RELYING ON THE DECISION OF THE SPECIAL BENCH OF THE TRIBUN AL IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD. REPORTED IN 137 ITD 287 (MUM) (SB) THE TRIBUNAL HELD THAT IN SO FAR AS A.YRS. 2007-08 AND 2008-09 ARE CONCERNED THE INCOME-TAX AUTHORITIES ERRED IN NOT ENTERTAINING THE CLAIM OF THE ASSESSEE MERELY BECAUSE IT WAS MADE IN THE COURSE OF AN ASSESSMENT U/S.153A(1)(B) OF THE ACT AN D WAS NOT MADE IN THE RETURNS OF INCOME ORIGINALLY FILED U/S.139(1) OF THE ACT. FURTHER, FOLLOWING THE DECISION OF THE HONBLE SU PREME COURT IN THE CASE OF GOETZ INDIA LTD. VS. CIT REPORTED IN 284 ITR 323 THE TRIBUNAL HELD THAT THE CLAIM OF THE ASSESSEE OUG HT TO HAVE BEEN ENTERTAINED BY THE LOWER AUTHORITIES AND DECIDED ON ITS MERITS. 29. IN VIEW OF THE DECISION OF THE TRIBUNAL CITED (SUPRA) WE ARE OF THE CONSIDERED OPINION THAT THE CLAIM OF THE ASSESSEE THA T THE INCOME FROM SALE OF AGRICULTURAL LAND IS EXEMPT U/S.2(14) OF THE I.T. ACT SHOULD HAVE BEEN CONSIDERED BY THE LOWER AUTHO RITIES. HOWEVER, SINCE BOTH THE LOWER AUTHORITIES HAVE REJECTED THE CLAIM OF THE ASSESSEE ONLY ON LEGAL POINT AND THE ISSUE HAS NO T BEEN DECIDED ON MERIT, THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE, WE RESTORE THE ISSUE TO THE FILE OF THE AO WITH A DIRECTION TO VERIFY THE DETAILS AND FIND OUT WHETHER THE ASSESSEE HAS EXEMPT INCOME TO THE EXTENT OF RS.8,49,689/-. THE AO SHALL DECIDE THE ISSUE IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY O F BEING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY . GROUNDS OF APPEAL NO. 5 TO 7 BY THE ASSESSEE ARE ACCORDINGLY A LLOWED FOR STATISTICAL PURPOSES. 21 ITA NOS.1662 TO 1666 & 1568/PN/2013 ITA NO.1568/PN/2013 (A.Y. 2009-10) : 30. GROUND OF APPEAL NO.1 BY THE REVENUE READS AS UNDER : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) ERRED IN ALLOWING THE BENEFIT OF TELESCOPY OF UNACCOUNTED INCOME GENERATED IN PREVIOUS ASSESSMENT YEARS, I.E. A.Y. 2005-06 TO 2008-09, AGAINST UTILIZATION IN A.Y. 2009-10. 31. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS A TRADER AND IS A DEALER OF M/S. FAST TRACK PACKERS PVT. LTD. DUR ING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO BASED ON THE VARIOUS SEIZED DOCUMENTS MADE ADDITION OF RS.16,83,500/- ON THE GR OUND THAT THE ASSESSEE HAD PAID THE SAID AMOUNT IN CASH TO M/S. FAST TRACK PACKERS PVT. LTD. WHILE DOING SO, HE NOTED THAT TH E ASSESSEE HAD STATED IN THE COURSE OF SEARCH THAT HE HAD PAID RS .500/- PER BAG TO M/S. FAST TRACK PACKERS PVT. LTD. FROM 01-01-2 009 TO 06- 10-2009. SINCE THE ASSESSEE HAD PURCHASED GOODS WORTH RS.2,350/- PER BAG AT RS.18,050/- PER BAG THIS INDICATED T HAT THE ASSESSEE HAD PAID THIS BALANCE CONSIDERATION OF CASH OF RS .500/- PER BAG. CONSIDERING THE NUMBER OF BAGS AND THE MODUS OPERANDI THE AO MADE ADDITION OF RS.16,83,500/-. 32. IN APPEAL THE LD.CIT(A) UPHELD THE ADDITION MADE BY T HE AO. HOWEVER, AN ALTERNATE ARGUMENT WAS MADE BEFORE CIT(A) TH AT IN CASE THE UNACCOUNTED PAYMENTS TO M/S. FAST TRACK PAC KERS PVT. LTD. IS SUSTAINED, THEN TELESCOPING BENEFIT SHOULD BE GIVEN TO THE ASSESSEE FOR THE ADDITIONS SUSTAINED IN A.YRS. 2005-06 TO A.Y. 2008-09. THE LD.CIT(A) ACCEPTED THE ALTERNATE CONTENTION OF THE ASSESSEE. SINCE HE HAD SUSTAINED THE ADDITIONS IN A.Y. 200 5-06 TO 2008-09 TOTALLING RS.17,84,256/- HE DIRECTED THE AO TO DELE TE THE ADDITION OF RS.16,83,500/-. 22 ITA NOS.1662 TO 1666 & 1568/PN/2013 33. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE REVENUE IS IN APPEAL BEFORE US. 34. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOT H THE SIDES, PERUSED THE ORDERS OF THE AO AND CIT(A) AND THE P APER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALREADY DELETED T HE ADDITIONS MADE BY THE AO AND UPHELD BY THE CIT(A) WHILE DE CIDING THE APPEAL OF THE ASSESSEE FOR A.YRS. 2005-06 TO 2008-09 IN THE PRECEDING PARAGRAPHS. THEREFORE, THE QUESTION OF TELESCOP ING BENEFIT GIVEN BY THE CIT(A) HAS TO BE REVERSED. SO FAR A S THE ADDITION OF RS.16,83,500/- MADE BY THE AO IS CONCERNED WE FIND THE LD.CIT(A) IN PRINCIPLE HAS UPHELD THE ADDITION MADE BY TH E AO. THE ASSESSEE HAS ALSO NOT PRESSED THE GROUNDS RELATIN G TO ADDITION OF RS.16,83,500/-. UNDER THESE CIRCUMSTANCES THE ORDER O F THE CIT(A) GRANTING TELESCOPING BENEFIT IS REVERSED AND THE GR OUND RAISED BY THE REVENUE IS ALLOWED. 35. GROUND OF APPEAL NO.2 BY THE REVENUE READS AS UNDER : 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.3,19,865/- ON ACCOUNT OF ALLEGED PAYMENT OF NON-COMPETE FEES UPTO 31-03-2009. 36. FACTS OF THE CASE, IN BRIEF, ARE THAT DURING THE COURS E OF ASSESSMENT PROCEEDINGS THE AO NOTED THAT AN MOU CON TAINING NON COMPETE FEES BETWEEN SARGAM RETAILS PVT. LTD. AND THE AS SESSEE WAS SEIZED ACCORDING TO WHICH THE ASSESSEE WAS REQUIRED TO PAY RS.95/- PER BAG OF GAICHAP JARDA TO SARGAM RETAILS PVT. LTD. AS NON COMPETE FEE. THE SAID MOU WAS EFFECTED FROM 01-01-200 9. SINCE THE TOTAL AMOUNT PAID DURING THE YEAR AMOUNTING TO RS.15,20,000/- WAS ACCEPTED BY SARGAM RETAILS PVT. LTD. AS THEIR 23 ITA NOS.1662 TO 1666 & 1568/PN/2013 UNDISCLOSED INCOME AND SINCE THE ASSESSEE HAS OFFERED AN AMOUNT OF RS.15,04,217/- AS ADDITIONAL INCOME REPRESENTING THE PAYM ENT OF RS.95/- PER BAG TO SARGAM RETAILS PVT. LTD. TOWARDS N ON COMPETE FEE AS PER THE MOU FOR THE PERIOD FROM 01-01-20 09 TO 31-03-2010, THE AO NOTED THAT THE INCOME OF THE ASSESS EE FOR THE PERIOD 01-01-2009 TO 31-03-2009 AMOUNTING TO RS.3,19,86 5/- PERTAINING TO A.Y. 2009-10 WAS NOT OFFERED BY THE ASSESS EE. HE THEREFORE MADE SUBSTANTIVE ADDITION OF RS.3,19,865/- FOR THE IMPUGNED ASSESSMENT YEAR WHILE PROTECTIVELY RETAINED ADD ITION FOR A.Y. 2010-11. 37. IN APPEAL IT WAS SUBMITTED THAT THE NATURE OF ADDIT ION MADE IS ON ACCOUNT OF UNACCOUNTED PAYMENTS MADE BY THE AS SESSEE AND NOT ON ACCOUNT OF UNDISCLOSED INCOME RECEIVED BY THE ASS ESSEE. IT WAS ARGUED THAT THERE WAS NO EVIDENCE FOUND THAT THE PAYMENT IS MADE BY THE ASSESSEE IN THIS YEAR. THEREFORE, IN ABSENCE OF ANY EVIDENCE THE ADDITION MADE BY THE AO ON PRESUMPTIONS A ND SURMISES IS NOT VALID AT ALL. 38. BASED ON THE ARGUMENTS ADVANCED BY THE ASSESSEE THE LD.CIT(A) DELETED THE ADDITION BY OBSERVING AS UNDER : 21.3. I HAVE CONSIDERED THE FACTS OF THE CASE. IT IS AN ADMITTED FACT THAT DURING THE COURSE OF SEARCH ON THE PREMISES OF SARGAM R ETAILS PVT. LTD. AT SANGAMNER, THE SEIZED DOCUMENTS FOUND DURING SEARCH SHOWED THAT SHRI RAKA HAD PAID RS.95 PER BAG TO SARGAM RETAILS PV T. LTD AS PER THE MOU DATED 12.1.2009, WHICH HAD NOT BEEN DISCLOSED TO THE DEPARTMENT. THIS FACT WAS ALSO ACCEPTED BY SARGAM RETA ILS PVT. LTD WHO IS THE RECIPIENT. SHRI RAKA OFFERED TO DISCLOSE AD DITIONAL INCOME ON THIS ACCOUNT. IT IS ALSO SEEN THAT SARGAM RETAILS PVT . LTD. WHICH WAS THE MAIN BUSINESS CONCERN OF THE MALPANI GROUP, HAS APP ROACHED THE SETTLEMENT COMMISSION, FOLLOWING THE SEARCH, ADMITTING THAT UNACCOUNTED INCOME HAD BEEN GENERATED THROUGH THE M ODUS OPERANDI OF CASH RECEIPTS NOT RECORDED IN THE BOOKS OF ACCOUNTS. THE FACT OF PAYMENT OF NON COMPETE FEE PAYABLE W.E.F. 01-01-200 9 HAS BEEN ACCEPTED BOTH BY THE APPELLANT AS WELL AS M/S SARGAM R ETAILS PVT. LTD. THERE IS NO DISPUTE ON THE PAYMENT OF FEE @ RS.95 PER BAG NOR 24 ITA NOS.1662 TO 1666 & 1568/PN/2013 REGARDING THE PAYMENT PERIOD. THE APPELLANT HAS OFFE RED THE ENTIRE AMOUNT OF RS.15,04,217/-AS HIS UNDISCLOSED INCOME FOR A. Y. 2010-11 AND THE SAME HAS NOT BEEN CLAIMED BY WAY OF ANY DEDUC TION OR EXPENDITURE. THE ASSESSING OFFICER HAS NOT DISPUTED THAT ANY' ADDITIONAL NON COMPETE FEE REMAINED TO BE DISCLOSED B Y THE APPELLANT W.R.T. THE PERIOD OF PAYMENT. IN FACT HE HAS ACCEPTE D THAT THE ENTIRE UNDISCLOSED INCOME HAS BEEN OFFERED TO TAX IN THE SUBSEQ UENT YEAR AND HIS ONLY GRIEVANCE IS THAT PART OF THE INCOME PER TAINS TO THE CURRENT YEAR AND THEREFORE, INCOME OFFERED IN SUBSEQU ENT YEAR IS TECHNICALLY INCORRECT. HOWEVER, I AM IN AGREEMENT W ITH THE SUBMISSIONS OF THE LEARNED COUNSEL THAT IN THE ABSENCE OF ANY EVIDENCE TO SHOW THAT THE PAYMENT HAS BEEN MADE BEFORE 31.3.20 09 AND IN ANY CASE SINCE THE PAYMENTS FOR THE PERIOD 1.1.2009 TO 31. 3.2009 HAS BEEN OFFERED TO TAX FOR A. Y. 2010-11, THERE IS NO JUSTIF ICATION FOR SUBSTANTIVELY MAKING THIS ADDITION FOR THE IMPUGNED A. Y, DOING SO, WOULD AMOUNT TO SUBJECTING THE SAME AMOUNT TO TAX TWI CE, ONCE IN THE CURRENT YEAR AND AGAIN IN THE SUBSEQUENT YEAR 2010-11 AS OFFERED BY THE APPELLANT. GROUNDS NO.3 TO 5 ARE ALLOWED. 39. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE REVENUE IS IN APPEAL BEFORE US. 40. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOT H THE SIDES, PERUSED THE ORDERS OF THE AO AND CIT(A) AND THE P APER BOOK FILED ON BEHALF OF THE ASSESSEE. WE FIND ON THE BASIS OF THE SEIZED MOU EFFECTIVE FROM 01-01-2009 THE AO CALCULATED THE AMOUN T FOR THE PERIOD OF 3 MONTHS, I.E. 01-01-2009 TO 31-03-2009 AT RS.3,19,805/- AND MADE ADDITION IN A.Y. 2009-10. HOWEVER, IT IS AN ADMITTED FACT THAT THE ASSESSEE HAS OFFERED THE ENT IRE AMOUNT OF RS.15,04,217/- AS HIS UNDISCLOSED INCOME FOR A.Y. 2010-11 AND THE SAME HAS NOT BEEN CLAIMED BY WAY OF ANY DEDUCTION O R EXPENDITURE. THERE IS NO ALLEGATION BY THE AO THAT ANY A DDITIONAL NON COMPETE FEE REMAINED TO BE DISCLOSED BY THE ASSESSE E WITH RESPECT TO THE PERIOD OF PAYMENT. THERE IS ALSO NO EVIDE NCE WITH THE REVENUE TO SHOW THAT THE PAYMENT HAS BEEN MADE BEFORE 31-03-2009. SINCE THE PAYMENT FOR THE PERIOD 01-01-200 9 TO 31- 03-2009 HAS BEEN OFFERED TO TAX FOR A.Y. 2010-11, THEREFO RE, WE FIND FORCE IN THE FINDINGS GIVEN BY THE CIT(A) THAT BRINGING TO TAX 25 ITA NOS.1662 TO 1666 & 1568/PN/2013 THE AMOUNT AGAIN IN A.Y. 2009-10 WOULD AMOUNT TO DOUBLE TAXATION. IN THIS VIEW OF THE MATTER AND IN VIEW OF THE D ETAILED REASONING GIVEN BY THE LD.CIT(A) WE FIND NO INFIRMITY IN HIS ORD ER. ACCORDINGLY, WE UPHOLD THE ORDER OF THE CIT(A) AND THE G ROUND RAISED BY THE REVENUE ON THIS ISSUE IS DISMISSED. 41. IN THE RESULT, ITA NOS. 1662 TO 1665/PN/2013 FILED BY THE ASSESSEE ARE ALLOWED. ITA NO.1666/PN/2013 FILED BY THE AS SESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES AND ITA NO.1568/PN/2013 FILED BY THE REVENUE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23-09-2015. SD/- SD/- ( SUSHMA CHOWLA ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE ; DATED : 23 RD SEPTEMBER, 2015. ' (*+ ,+ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. & ( ) / THE CIT(A)-I, NASHIK 4. & , / THE CIT-I, NASHIK 5. ) ,,- , - , / DR, ITAT, A PUNE; 6. 1 / GUARD FILE. / BY ORDER , ) , //TRUE COPY// 34 , - / SR. PRIVATE SECRETARY -, / ITAT, PUNE