ACIT, Varanasi V. Shr Pradeep Baranwal, Bhadohi

ITA 172/ALLD/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63395 (ITAT-ALLAHABAD)
• Duration Of Justice: 1 year(s) 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 06-11-2012
• Assessment Year: 2009-2010
• Appeal Filed On: 02-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANDEEP CHAUHAN
• Assessee Lawyers: A K THUKRAL
• Keywords: Unexplained investment; Sale consideration of property below Jantri Value; Unexplained expenditure; Gift; Income from undisclosed sources; Search and seizure; Loose papers; Document seized; Principle of natural justice; Question of law; Competent authority; Onus to prove; Documents seized
• Section: 69C; 143(3); 50C; 56(2); 68; 56; 132; 144; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ALLAHABAD BENCH, ALLAHABAD BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NOS.177 & 172/ALLD/2011 ASSESSMENT YEARS: 2008-09 & 2009-10 RESPECTIVELY ASSTT. COMMISSIONER OF INCOME TAX, VS. SHRI PRADEEP BARANWAL, CENTRAL CIRCLE, VARANASI. MAIN ROAD, BHADOHI. (PAN : ACEPB 0725 D). ITA NO.178/ALLD/2011 ASSESSMENT YEAR: 2009-10 ASSTT. COMMISSIONER OF INCOME TAX, VS. SHRI NITIN B ARANWAL, CENTRAL CIRCLE, VARANASI. S/O/ SHRI PRADEEP BARA NWAL, MAIN ROAD, BHADOHI. (PAN : ACEPB 0717 H). ITA NO.179/ALLD/2011 ASSESSMENT YEAR: 2009-10 ASSTT. COMMISSIONER OF INCOME TAX, VS. SHRI RAJAT B ARANWAL, CENTRAL CIRCLE, VARANASI. MAIN ROAD, BHADOHI. (PAN : AGMPB 5134 G). ITA NO.176/ALLD/2011 ASSESSMENT YEAR: 2009-10 ASSTT. COMMISSIONER OF INCOME TAX, VS. SMT. SUMAN B ARANWAL, CENTRAL CIRCLE, VARANASI. W/O. SHRI PRADEEP BARA NWAL MAIN ROAD, BHADOHI. (PAN : AGQPB 4171 M). (APPELLANT) (RESPONDENTS) APPELLANT BY : SHRI SANDEEP CHAUHAN, CIT D.R. RESPONDENTS BY : SHRI BHUPENDRA SHAH, C.A. & SHRI A.K. THUKRAL, C.A. ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 2 DATE OF HEARING : 06.11.2012 DATE OF PRONOUNCEMENT : 31.12.2012 ORDER PER A.L. GEHLOT, ACCOUNTANT MEMBER: THESE ARE APPEALS FILED BY THE REVENUE AGAINST FIVE DIFFERENT ORDERS, ALL DATED 21.06.2011, PASSED BY THE LD. CIT(A), VARANAS I FOR THE ASSESSMENT YEARS 2008-09, 2009-10, 2009-10, 2009-10 & 2009-10 RESPE CTIVELY. 2. SINCE THE FACTS OF ALL THESE THREE CASES ARE IDE NTICAL, THEREFORE, FOR THE SAKE OF CONVENIENCE, ALL THESE APPEALS ARE DECIDED TOGETHER . THE LEARNED REPRESENTATIVES OF HE PARTIES SUBMITTED THAT THE FACTS LEAD IN ITA NO. 177/ALLD/2011 FOR A.Y. 2008-09 IN THE CASE OF SHRI PRADEEP BARANWAL. WE, THEREFOR E, CONSIDER THE FACTS OF THESE CASES ACCORDINGLY. ITA NO.177/ALLD/2011 FOR A.Y. 2008-09 IN THE CASE O F SHRI PRADEEP BARANWAL :- 3. THE GROUNDS OF APPEALS RAISED BY THE REVENUE IN THE ABOVE APPEAL ARE AS UNDER :- 1. THE LD. CIT(A) WAS NOT JUSTIFIED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.53,74,850/- MADE U/S 69 OF THE A CT ON ACCOUNT OF INVESTMENT IN PROPERTY AT GREATER NOIDA, WITHOUT AP PRECIATING THE FACT THAT THE ADDITION WAS MADE ON THE BASIS OF DOCUMENT S SEIZED FROM THE ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 3 RESIDENCE OF THE ASSESSEE AND THE SAME WAS NOT SHOW N IN ALLOTMENT LETTER, FOUND AND SEIZED DURING THE COURSE OF SEARC H. 2. THE LD. CIT(A) WAS NOT JUSTIFIED IN LAW AND ON F ACTS IN DELETING THE ADDITION OF RS.53,74,850/-, WITHOUT APPRECIATI NG THE FACT THAT THE INVESTMENT OF RS.53,74,850/- WAS UNACCOUNTED INVEST MENT AND AS PER PROVISIONS OF SECTION 132(4A) OF THE ACT, THE PRESU MPTION OF LAW WAS AGAINST THE ASSESSEE UNLESS PROVED OTHERWISE BY HIM WITH INDEPENDENT EVIDENCE. 3. THE LD. CIT(A) WAS NOT JUSTIFIED IN LAW AND ON F ACTS IN DELETING THE ADDITION OF RS.75,12,500/- ON ACCOUNT OF INVEST MENT IN PROPERTY AT GURGAON, WITHOUT APPRECIATING THE FACT THAT THE AD DITION WAS MADE ON THE BASIS OF DOCUMENTS SEIZED FROM THE RESIDENCE OF THE ASSESSEE AND THE SAME WAS NOT SHOWN IN ALLOTMENT LETTER, FOUND A ND SEIZED DURING THE COURSE OF SEARCH. 4. THE LD. CIT(A) WAS NOT JUSTIFIED IN LAW AND ON F ACT IN DELETING THE ADDITION OF RS.75,12,500/-, WITHOUT APPRECIATIN G THE FACT THAT NOTING AND JOTTING IN THE SEIZED DIARY FOUND AT THE TIME OF SEARCH ITSELF, BEAR SUFFICIENT INDEPENDENT AND DIRECT EVIDENCE FOR RISING AT THE CONCLUSION BY THE AO THAT UNACCOUNTED CASH PAYMENTS HAVE BEEN MADE TOWARDS PURCHASE OF PROPERTY. 5. THE LD. CIT(A) WAS NOT JUSTIFIED IN LAW AND ON F ACTS IN DELETING THE ADDITION OF RS.2,92,387/- ON ACCOUNT OF RENTAL INCOME, WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HIMSELF HAD VOLUNTARILY DECLARED INCOME UNDER THE HEAD PROPERTY INCOME, W HICH AS PRESUMED AFTER THOUGHT THE ASSESSEE WITHDREW, AND T HE SAME WAS STATEDLY OFFERED AS INTEREST INCOME. 6. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN IGNORING THE PROVISIONS OF SECTION 292C OF THE ACT, ACCORDIN G TO WHICH THE DOCUMENTS, BOOKS OF ACCOUNT, MONEY, BULLION, JEWELL ERY AND OTHER VALUABLE ARTICLES OR THING ARE FOUND DURING THE COU RSE OF SEARCH WILL BE PRESUMED TO BE BELONGING TO SUCH PERSONS AND THA T THE CONTENTS OF SUCH BOOKS OF ACCOUNT ARE TRUE. ACCORDINGLY AS PER THE PROVISIONS OF LAW, IT WAS FOR THE ASSESSEE TO REBUT THE EVIDENCE FOUND DURING THE COURSE OF SEARCH AND NOT FOR THE AO TO PROVE THAT T HESE DOCUMENTS WERE TRUE AND BELONGS TO THE ASSESSEE. ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 4 7. THAT THE ORDER OF THE LD. CIT(A) DESERVES TO BE VACATED AND THE ASSESSMENT ORDER PASSED BY THE AO BE RESTORED. 8. THAT THE APPELLANT CRAVES LEAVE TO AMEND ANY ONE OR MORE OF THE GROUNDS OF THE APPEAL AS STATED ABOVE AS AND WH EN NEED FOR DOING SO MAY ARISE. 4. THE BRIEF FACTS OF THE CASE ARE THAT A SEARCH AN D SEIZURE OPERATION UNDER SECTION 132 OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) WAS CONDUCTED IN THE RESIDENTIAL AND BUSINESS PREMISES OF M/S. CARPE T INTERNATIONAL, M/S. CARPET INTERNATIONAL PVT. LTD., BHADOHI, ITS DIRECTORS, IT S PARTNERS, ITS SISTER CONCERNS AND OTHER GROUP CASES ON 11.02.2009. THE WARRANTS OF A UTHORIZATION FOR SEARCH OF RESIDENTIAL AND BUSINESS PREMISES WERE ISSUED BY TH E DIRECTOR OF INCOME TAX (INV.), KANPUR ON 03.02.2009. DURING THE COURSE OF SEARCH, VARIOUS LOOSE PAPERS, DOCUMENTS, FDRS. AND COMPUTERS ETC. AS PER ANNEXURE S TO THE VARIOUS PANCHANAMAS DRAWN WERE FOUND AND SEIZED. THEREAFTE R, NOTICE UNDER SECTION 153A(A) OF THE ACT DATED 07.07.2009 REQUIRING THE A SSESSEE TO FURNISH THE RETURN OF INCOME WAS ISSUED AND DULY SERVED FOR COMPLIANCE BY 24.07.2009. IN RESPONSE TO THE NOTICE, THE ASSESSEE FILED RETURN OF INCOME ON 26.08.2009 DECLARING TOTAL INCOME AT RS.94,84,960/-.THE ASSESSEE IS PARTNER OF M/S CA RPET INTERNATIONAL PVT. LTD., BHADOHI. 5. THE FACTS OF THE GROUNDS 1 TO 4 OF APPEAL ARE THAT THE ASSESSING OFFICER MADE AN ADDITION OF RS.53,74,850/- AND RS.75,12,500 /- AS UNACCOUNTED INVESTMENT ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 5 IN PURCHASE OF PROPERTY BEARING SHOP NO.123 MSX MAL L, GREATER NOIDA AND UNIT NO.703-706, GURGAON RESPECTIVELY ON THE BASIS OF NO TINGS ON L.P. (LOSE PAPER)-8 ON PAGE NO.80 SCANNED IN PARA NO.4.2 OF ASSESSMENT ORDER AND ON A DIARY OF ANNEXURE A-2 PAGE NO.6 SCANNED IN PARA NO.5 OF ASSE SSMENT ORDER AS PER PANCHANAMA DATED 11.02.2009. THE A.O. NOTICED FROM PAGE NO.8 SEIZED FROM RESIDENCE OF PRADEEP KUMAR BARANWAL THAT CASH AMOUN TING TO RS.49,56,108/- MENTIONED IN THE LOOSE PAPER IS AMOUNT OF UNACCOUNT ED MONEY AS THE SAME WAS NOT SHOWN IN THE ALLOTMENT LETTER ISSUED BY M/S. NITIS HREE BUILD CON (P) LTD. THE A.O. HAS ALSO NOTICED FROM SEIZED PAPER NO.164 THAT TOTAL PAYMENT OF RS.34,18,473/- WAS TO PAY, RS.30,00,000/- AT THE TI ME OF BOOKING AND RS.4,18,743/- AT THE TIME OF POSSESSION OF PROPERTY. THE A.O. MA DE ADDITION OF RS.53,74,850/- (49,56,108/- PLUS RS.4,18,742/-) 6. THE A.O. HAS ALSO NOTICED FROM PAGE NO.189 TO 20 7 IN LOOSE PAPERS WHICH WERE SEIZED FROM THE RESIDENCE OF SHRI PRADEEP KUMA R BARANWAL. THE A.O. FURTHER NOTICED THAT THE SAID PROPERTY HAS BEEN AGR EED TO BE TRANSFERRED TO SHRI PRADEEP FOR A SUM OF RS.45,67,500/-. OUT OF THE SA ID SUM, RS.41,10,750/- WAS PAID BY CHEQUE DATED 11.06.2007 ISSUED IN FAVOUR OF DELH I BUILT WELL PVT. LTD. THE TOTAL PAYMENT OF 1,20,80,000/- WAS TO BE MADE AS R ECORDED AT PAGE NO.6 OF NEELGAGAN DIARY SEIZED FROM THE RESIDENTIAL PREMISE S AT DELHI. THE A.O. ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 6 ACCORDINGLY CALCULATED THE AMOUNT OF ADDITION OF RS .75,12,500/- (1,20,80,000 45,67,500). 7. THE CIT(A) DELETED BOTH THE ADDITIONS OF RS.53,7 4,580/- AND RS.75,12,500/- MADE BY A.O. ON ACCOUNT OF UNACCOUNTED CASH PAYMENT S TOWARDS PURCHASE OF THE ABOVE PROPERTIES. BEFORE DELETING THE SAID ADDITIO N, THE CIT(A) HAS CONSIDERED THE RIVAL CONTENTION OF THE ASSESSEE AND CAME TO THE CO NCLUSION THAT THE ASSESSING OFFICER HAS SIMPLY RELIED ON THE NOTINGS AND JOTTIN G ON A DIARY WITHOUT ANY INDEPENDENT OR CORROBORATIVE OR DIRECT EVIDENCE TO PRESUME THAT NOTING AND JOTTING RECORDED IN THE SAID DIARY HAD MATERIALIZED INTO AC TUAL TRANSACTION GIVING RISE TO INCOME WHICH HAD NOT BEEN DISCLOSED BY THE ASSESSEE IN HIS BOOKS OF ACCOUNT. THE CIT(A) IN SUPPORT OF HIS VIEW RELIED UPON JUDGEMENT OF CIT VS. D.K. GUPTA (2008) 174-TAXMAN-476 (DELHI) AND SHANKAR LAL NEBHUMAL (HU F) VS. DY. CIT (2004) 135-TAXMAN-33. THE CIT(A) HELD THAT THESE JUDGEMEN TS ARE SQUARELY APPLICABLE IN THE CASE UNDER CONSIDERATION. THE CIT(A) FURTHER OB SERVED THAT SO FAR AS THE FACTUAL POSITION IS CONCERNED, THE ASSESSEES SUBMISSION HA S SUFFICIENT FORCE THAT THE SAID NOTINGS WERE JUST PROJECTION AND CALCULATION OF FUT URE RENT AT WHICH THE PROPERTY WAS PROPOSED TO BE LET OUT. THIS VIEW FINDS STRENG TH FROM THE FACT THAT THE SAID PROPERTY WAS LATER ON LET OUT ON THE SAID CALCULATI ON. THE CIT(A) OBSERVED THAT IT IS A MATTER OF GREAT CONCERN AS ARGUED BY THE ASSESSEE S COUNSEL DURING THE APPELLATE PROCEEDINGS HELD ON 25.03.2011 WHICH WAS ALSO ATTEN DED BY THE A.O. THAT AN ENTRY ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 7 OF 52C PRESUMED AS RS.52,00,000/- PAID TO SHRI ATUL FOR PURCHASE OF SHOP/OFFICE AT VENEZIA (NOIDA) ON PAGE 2 OF SAME NEELGAGAN DIARY M ENTIONED SUPRA HAS NOT BEEN ADDED UPON BY THE A.O. BEING SAME ENTRY FROM S AME DOCUMENT AS NO ADDITION RELATING TO THAT ENTRY HAS BEEN MADE IN THE ASSESSM ENT ORDER BUT OTHER ENTRIES RELATING TO THE IMPUGNED ADDITIONS HAVE BEEN ADDED. THIS SHOWS A DOUBLE STANDARD TREATMENT. THE CIT(A) HAS ALSO NOTED THAT NO REBUT TAL CAME FROM THE A.O. DURING THE COURSE OF THE APPELLATE PROCEEDINGS AND EVEN TH E DATE OF THE ORDER OF THE CIT(A). THE CIT(A) NOTED FROM THE PERUSAL OF THE CASE RECORD VIDE LETTER NO. ACIT/CC/INS 133(6)/PRADEP BRANWAL/10-11/406 DATED 2 1.12.2010 PLACED ON CASE RECORD AT SERIAL NO. 256 BUT THE REPLY OF ABOVE LET TER WAS NOT AVAILABLE IN THE CASE RECORD. THE CIT(A) OBSERVED THAT IT IS NOT CLEAR W HY HE HAS NOT ENQUIRED ON OTHER PROPERTIES. THE CIT(A) AFTER CONSIDERING ASSESSEE S SUBMISSIONS AND CASE RECORDS FOUND THAT THE A.O. MADE ENQUIRY U/S. 131(6) ONLY I N ONE CASE AND WITHOUT ANY ENQUIRY MADE HE MADE ADDITION OF RS.53,74,850/- AND RS.75,12,500/- AS UNEXPLAINED INVESTMENT. THE CIT(A) OBSERVED THAT I T IS NOT CLEAR WHY THE A.O. HAS NOT MADE ANY ENQUIRY IN OTHER CASES. THE CIT(A) HE LD THAT THE A.O. HAS PRE- DETERMINED TO MAKE ADDITIONS WHICH SHOWS A DOUBLE S TANDARD TREATING THE SAME NATURE OF ENTRY ADOPTED BY THE A.O. THE CIT(A) FUR THER NOTED THE A.O. DID NOT EXAMINE SHRI RAJAT BARANWAL AS WITNESS WHO MADE THE SAID NOTING AND JOTTING ON THE SAID DIARY AND WHO NARRATED HIS INTENSION TO MA KE THE NOTING IN HIS AFFIDAVIT. NOR THE ASSESSEE WAS ALLOWED TO CROSS EXAMINE THE S ELLER OF THE AFORESAID PROPERTY ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 8 ON THE ISSUE OF ALLEGED ON-MONEY CASH PAYMENT. THE CIT(A) FOUND THAT THE ACTION OF THE A.O. IS AGAINST NATURAL JUSTICE. THE CIT(A) RELIED UPON THE CASE OF HONBLE SUPREME COURT IN THE CASE OF RAM DURGA PRASAD VS. S ETTLEMENT COMMISSION, 176 ITR 169 WHEREIN IT HAS BEEN HELD THAT BREACH OF NAT URAL JUSTICE BY THE A.O. IS NOTHING BUT A NULLITY AND VOID. 8. THE LD. DEPARTMENTAL REPRESENTATIVE RELIED UPON THE ORDER OF A.O. AND SUBMITTED THAT THE A.O. MADE THE ADDITION ON THE BA SIS OF LOOSE PAPER AND DIARY FOUND AT THE TIME OF SEARCH. HE FURTHER SUBMITTED THAT THE CIT(A) HAS DELETED THE ADDITION WITHOUT APPRECIATING THE FULL FACTS NOTED BY THE A.O. 9. THE LD. AUTHORISED REPRESENTATIVE REITERATED THE SUBMISSIONS WHICH WERE MADE BEFORE THE CIT(A). 10. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THA T THE ASSESSING OFFICER HAS DRAWN AN INFERENCE OF THE SO ALLEGED ON-MONEY CASH PAYMENT ONLY ON A NOTING OF RS.1,20,80,000/-. A MINUTE PERUSAL OF THE NOTINGS SCANNED IN PARA NO.5 OF ASSESSMENT ORDER WILL REVEAL THAT THIS NOTING IS AL SO A PROJECTION FOR RENT CALCULATION. NO WHERE THERE IS ANY MENTION THAT RS .1,20,80,000/- HAS BEEN PAID TO DELHI BUILT WELL (P) LTD. THE ASSESSING OFFICER HA S GIVEN HIS OWN MEANING FROM NOTING OF A DUMP DOCUMENT. THE LD. AUTHORISED REPR ESENTATIVE FURTHER SUBMITTED ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 9 THAT FROM THE SEIZED MATERIALS, THERE CANNOT BE DER IVED ANY MEANINGFUL PRESUMPTION THAT THE ASSESSEE HAS PAID MORE THAN WH AT IS RECORDED IN DEEDS OF ALLOTMENT AND SALE. THERE ARE SEVERAL CASE LAWS ON THE ABOVE SITUATION HOLDING THAT IN ABSENCE OF INDEPENDENT EVIDENCE ON RECORD TO IND ICATE PAYMENT OF ON-MONEY BY THE ASSESSEE, ADDITIONS ARE NOT SUSTAINABLE. THE L D. AUTHORISED REPRESENTATIVE SUBMITTED THAT THE ADDITIONS ARE NOT IN CONSISTENCE OF THE FOLLOWING RULE OF LAW :- (I) THE NOTING ON THE LOOSE PAPER AND DIARY ARE BEY OND DOUBT PROJECTION AND ESTIMATE FOR CALCULATION OF FUTURE RENT. (II) THE SELLERS HAVE NOT SHOWN THE ALLEGED ON-MONE Y RECEIPT IN THEIR ACCOUNT AS IS EVIDENT FROM THE FINDINGS OF THE ASSESSING OFFIC ER. THE SELLERS HAVE NOT BEEN EXAMINED BY THE ASSESSING OFFICER NOR CROSS-EXAMINE D BY THE ASSESSEE THOUGH WRITTEN REQUEST WAS MADE. (III) THE ENTIRE ADDITION RESTED ON THE SEIZED DOCU MENT AND NO OTHER MATERIAL HAD BEEN AVERTED TO WHICH WOULD CONCLUSIVELY SHOW THAT HUGE AMOUNT OF THE MAGNITUDE MENTIONED IN THE SEIZED DOCUMENTS PROCEED ED FROM ONE SIDE TO ANOTHER. THE MOST RELIABLE CASE LAW ON THIS POINT ARE AMARJE ET SINGH BAKSHI VS. CIT (2003) 86-ITD-13 (DELHI) (TM) AND CIT VS. D.K. GUPTA (2008 ) 174-TAXMAN 476 (DELHI). ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 10 (IV) THE ADDITIONS HAVE BEEN MADE WITHOUT ANY COGEN T AND POSITIVE EVIDENCE TO ARRIVE AT A CONCLUSION THAT THE ASSESSEE HAS PAID M ORE THAN WHAT IS RECORDED IN DEED OF AGREEMENT OR SALE, (V) THE VALUE OF THE PROPERTY HAS BEEN ACCEPTED BY THE STAMP DUTY AUTHORITY AND THE SAME HAS BEEN ACCEPTED BY THE DEPARTMENT IN CASES OF SELLERS U/S 50C OF INCOME TAX ACT. (VI) THE ADDITIONS HAVE BEEN MADE ON GUESS WORK AND ESTIMATE WHEREAS THE PROVISIONS PERMITTING SUCH ESTIMATE. (VII) THE ADDITION HAVE BEEN MADE U/S 69 WHICH IS B AD IN LAW AS THE ACTUAL INVESTMENT MADE IN THE PURCHASE OF PROPERTIES HAS B EEN RECORDED IN THE BOOKS OF THE ASSESSEE AS PER SALE DEED/ALLOTMENT DEED. (VIII) AN AFFIDAVIT OF SHRI RAJAT BARANWAL WAS FILE D WHO MADE NOTINGS FOR CALCULATION OF RENT ON THE SAID DIARIES WHICH HAS B EEN DISBELIEVED WITHOUT EXAMINING. 11. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THA T THE A.O. HAS MADE ENQUIRY IN RESPECT OF SUCH LOOSE PAPERS, NEELGAGAN DIARY, PAGE NO.20, THE DETAILS OF ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 11 BUILDING, VENEZIA NOIDA. THE CO-OWNER OF THE PROPE RTY ARE SHRI PRADEEP BARANWAL & SHRI NITIN BARANWAL. THE LD. AUTHORISED REPRESEN TATIVE SUBMITTED THAT AFTER MAKING ENQUIRY THE A.O. DID NOT MAKE ADDITION. HE FURTHER SUBMITTED THAT THE NOTING ON OTHER PAGES OF THE DAIRY IS SIMILAR IN NA TURE. THE A.O. MADE THE ADDITION IN RESPECT OF OTHER PROPERTIES WITHOUT MAKING ANY E NQUIRIES. THE LD. AUTHORISED REPRESENTATIVE DREW OUR ATTENTION TO PAGE NO.82 OF PAPER BOOK WHERE A SUMMARY OF CHART IN THIS REGARD HAS BEEN PLACED OF WHICH CO PIES HAS BEEN REPRODUCED AS UNDER :- SUMMARY OF NEELGAGAN DIARY (8 PAGES) (A-2) DELHI HO USE SL. NO. PAGE NO. OF DIARY PARTICULARS OF PROPERTY --------------------------------------- DETAILS OF CITY BUILDING OWNERS ADDITION U/S 69 REMARKS 1. 23 PARSAVNATH HALDIRAM (1) NITIN (2) SUMAN RS.28 ,91,050 EACH NO ENQUIRY WAS MADE BY AO 2. 20 VENEZIA NOIDA (1) PRADEEP (2) NITIN NO ADDITI ON AFTER ENQUIRY AS MENTIONED IN PARA NO.7 OF CIT (APPEALS) ORDER AS PER ACIT LETTER NO.ACIT/CC/INS133(6)/ PRADEEP BARANWAL 2010- 11/406 DATED 21.12.2010 PLACED IN CASE RECORD AT SL. NO.256 ENQUIRY MADE AND NO ADDITIONS WERE DONE BY AO. 3. 17 BILT GURGAON (1) RAJAT (2) SUMAN RS.65,02,000 /- EACH NO ENQUIRY WAS MADE BY AO. 4. 14 CAIRNS GURGAON (1) RAJAT (2) SUMAN RS.68,17,5 00/- EACH NO ENQUIRY WAS MADE BY ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 12 AO 5. 9 DELL GURGON (1) NITIN (2) PRADEEP RS.34,58,000 /- EACH NO ENQUIRY WAS MADE BY AO 6. 5 BPTP GURGAON (1) PRADEEP - RS.75,12,500/- NO ENQUIRY WAS MADE BY AO 7. 1 MSX MALL GREATOR NOIDA (1) PRADEEP - RS.53,74,580/- NO ENQUIRY WAS MADE BY AO 8. IND EX INDEX INDEX INDEX INDEX INDEX NOT APPLICAB LE 12. THE LD. AUTHORISED REPRESENTATIVE WHILE SUMMING UP HIS ARGUMENTS SUBMITTED THAT SO-CALLED SEIZED MATERIAL NEELGAGAN DIARY PAGES ARE ONLY PROJECTED RENT FOR NEGOTIATION. HE FURTHER SUBMITTED THAT SI MILAR ADDITIONS WERE NOT MADE BY THE A.O. IN CASE OF OTHER OWNERS HAVING SIMILAR PRO PERTY AS MENTIONED IN PARAGRAPH NO.7 OF CIT(A)S ORDER IN THE CASE OF SHRI NITIN BA RANWAL. THE A.O. DID NOT MAKE ANY ENQUIRY. HE FURTHER SUBMITTED THAT THE ASSESSE E IN SUPPORT OF HIS CONTENTIONS FURNISHED AFFIDAVIT WHICH WAS NOT CONTROVERTED BY T HE A.O. IT WAS ALSO SUBMISSION OF THE LD. AUTHORISED REPRESENTATIVE THAT VALUATION S OF THE PROPERTIES WERE ACCEPTED UNDER SECTION 50C OF THE ACT. THE LD. AUTHORISED R EPRESENTATIVE SUBMITTED THAT THESE ARE SIMPLY DUMP DOCUMENT BASED ON WHICH ADDIT IONS CANNOT BE MADE. THE LD. AUTHORISED REPRESENTATIVE RELIED UPON THE FOLLO WING DECISIONS:- ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 13 I) P.V. KALYANASUNDARAM, 164 TAXMAN 78 (SC) II) GIRISH CHAUDHARY, 163 TAXMAN 608 (DELHI) III) S.M. AGARWAL, 162 TAMAN 3 (DELHI) IV) RAVI KUMAR, 168 TAXMAN 150 (P&H) V) KHAZAN SINGH & BROS, 164 TAXMAN 30 (P&H) VI) JAYA S. SHETTY, 69 ITD 336 (MUM) VII) SATYAPAL WASSAN, 295 ITR (AT) 352 (ITAT JABALP UR) VIII) S.P. GOYAL, 82 ITD 85 (MUM) IX) BANSAL STRIPS P. LTD., 99 ITD 177 (DELHI) X) AVON TUBETECH PVT LD, ITA NO.3817/DEL/2010 XI) NIRMAL FASHIONS PVT. LTD, 25 SOT 387 (KOL.) XII) VATIKA GREENFIELD (P) LTD., 121 TTJ 208 (DEL) 13. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PA RTIES AND RECORDS PERUSED. THE CASE OF THE REVENUE IS THAT THE A.O. MADE ADDIT ION ON THE BASIS OF LOOSE PAPERS AND MATERIALS, DOCUMENTS AND DIARIES FOUND AT THE TIME OF SEARCH, WHEREAS, THE CASE OF THE ASSESSEE IS THAT THESE ARE THE DUMP DOC UMENTS BASED ON WHICH ADDITIONS CANNOT BE MADE. THE CRUX OF THE MATTER TO BE EXAMI NED IS THE ISSUE UNDER WHICH FACTS AND CIRCUMSTANCES THE ADDITION CAN BE MADE ON THE BASIS OF LOOSE PAPERS FOUND AT THE TIME OF SEARCH, HOW THE AMOUNT OF INCO ME IS TO BE CALCULATED AND TO MAKE ADDITION ON THE BASIS OF SUCH LOOSE PAPERS. T HE ISSUE HAS BEEN DISCUSSED IN VARIOUS JUDGMENTS INCLUDING THE JUDGMENT IN THE CAS E OF COMMISSIONER OF INCOME- TAX, JALANDHAR-I VS. ATAM VALVES (P.) LTD., 332 ITR 468 (P&H) AND COMMISSIONER OF INCOME-TAX, JALANDHAR VS. KHAZAN SINGH & BROS., 304 ITR 243 [2007] 164 TAXMAN 30 (P&H), & COMMISSIONER OF INCOME-TAX, SALE M VS. P.V. KALYANASUNDARAM, 294 ITR 49 [2007] 164 TAXMAN 78 (S .C.). THE RELEVANT BRIEF FACTS OF THOSE CASES AND THE FINDINGS OF THE COURTS ARE AS UNDER :- ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 14 13.1 COMMISSIONER OF INCOME-TAX, JALANDHAR-I VS. ATAM VA LVES (P.) LTD., 332 ITR 468 (P&H). IN THIS CASE DURING THE COURSE OF A SURVEY CONDUC TED AT THE PREMISES OF THE ASSESSEE CERTAIN INCRIMINATING DOCU MENTS WERE FOUND INCLUDING A SLIP PAD CONTAINING PAYMENT OF WAGES TO VARIOUS P ERSONS. THE ASSESSEE EXPLAINED THAT THE SAID SLIPS DID NOT REPRESENT PAYMENT OF WA GES DURING YEAR-IN-QUESTION BUT WERE FOR EARLIER YEAR. HOWEVER, THE ASSESSING OFFI CER DID NOT ACCEPT THE SAID EXPLANATION AND ESTIMATED SALES ON THE BASIS OF ABO VE SAID LOOSE SLIPS AND, ACCORDINGLY, MADE ADDITION. ON FURTHER APPEAL, TRI BUNAL HELD THAT ASSESSING OFFICER WAS NOT JUSTIFIED IN ESTIMATING SALES ON TH E BASIS OF LOOSE SLIPS WITHOUT SUBSTANTIATING THAT ASSESSEE HAD ACTUALLY MADE SALE S TO THAT EXTENT OF ESTIMATION. IT WAS HELD THAT ASSESSING OFFICER HAD NO IOTA OF EVID ENCE IN THE FORM OF SALE BILLS OR BANK ACCOUNT OR MOVABLE AND IMMOVABLE PROPERTY WHIC H COULD REPRESENT EARNING OF UNACCOUNTED INCOME BY ASSESSEE, THEREFORE, DELET ED THE ADDITION MADE ON THE BASIS OF ESTIMATION OF SALES. WHETHER THE TRIBUNAL WAS JUSTIFIED IN DELETING THE ADDITION? IN THAT CASE, THE LEARNED COUNSEL FOR THE REVENUE SUBMITTED THAT ONCE THE EXPLANATION OF THE ASSESSEE WAS FOUND TO BE UNACCEP TABLE, THE ADDITION MADE BY THE ASSESSING OFFICER OUGHT TO HAVE BEEN UPHELD. UNDER THAT FACTS AND CIRCUMSTANCES OF THE CASE, THE COURT HELD AS UNDER:- (PAGE 471) 4. WE ARE UNABLE TO ACCEPT THIS SUBMISSION. 5. NO DOUBT, A FALSE EXPLANATION OF ASSESSEE MAY BE A CIRCUMSTANCE TO BE TAKEN INTO ACCOUNT FOR RECORDING A FINDING OF UNDISCLOSED INCOME AND SOME DEGREE OF GUESS WORK IS ALSO ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 15 PERMISSIBLE IN SUCH A SITUATION, AS HELD BY THE SUP REME COURT IN KACHWALA GEMS V. JT. CIT [2007] 288 ITR 10 1, RELIE D UPON BY THE LEARNED COUNSEL FOR THE REVENUE, IT DEPENDS UPON FA CTS AND CIRCUMSTANCES OF EACH CASE AS TO WHAT IS TO BE FAIR ESTIMATE OF UNDISCLOSED INCOME. THE CIT(A) AS WELL AS THE TRIBU NAL HELD THAT IN THE CIRCUMSTANCES, THE ESTIMATE OF ADDITION, TO THE EXTENT ASSESSED BY THE ASSESSING OFFICER, WAS NOT CALLED FOR AND THE S AME WAS PARTLY LIABLE TO BE SET ASIDE. 6. IT CANNOT BE HELD THAT ANY SUBSTANTIAL QUESTION OF LAW ARISES FOR CONSIDERATION. 7. THE APPEAL IS DISMISSED. 13.2 COMMISSIONER OF INCOME-TAX, JALANDHAR VS. KHAZAN S INGH & BROS 304 ITR 243 [2007] 164 TAXMAN 30 (P&H). THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE RESPONDENT-FIRM WAS ENGAGED IN THE BUSINES S OF PURCHASE AND SALE OF AUTO SPARE PARTS IN RESPECT OF THE YEAR UNDER REFERENCE. IT HAD HEADQUARTER AT JALANDHAR AND BRANCH OFFICE AT KAPURTHALA. THERE WERE THREE PARTNERS, NAMELY, SHRI GURBAX SINGH, FATHER AND HIS TWO SONS SARVSHRI MANJIT SING H AND AMRIK SINGH. ON THE INSPECTION UNDERTAKEN BY THE EXCISE AND TAXATION DE PARTMENT, JALANDHAR, ON 21- 10-1982, A POCKET DIARY WAS IMPOUNDED AND ITS POSSE SSION WAS TAKEN BY THE INCOME-TAX DEPARTMENT BY PLACING RELIANCE ON THE PR OVISIONS OF SECTION 132A OF THE ACT. IN OTHER WORDS, THE DIARY WAS REQUISITIONE D BY THE COMPETENT AUTHORITY. THE ASSESSEE FILED ITS RETURN ON 07.04.1983, DECLAR ING ITS INCOME AT RS.14,240/- AND BEST JUDGMENT UNDER SECTION 144 OF THE ACT WAS FRAM ED ON 21.03.1985 AT RS.4,97,180/-. THE ORDER OF THE ASSESSING OFFICER WAS SET ASIDE BY THE CIT(A) ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 16 VIDE HIS ORDER DATED 25.11.1985 AND ACCORDINGLY DE NOVO ASSESSMENT WAS TO BE FRAMED. THEREAFTER FRESH ASSESSMENT WAS FRAMED UND ER SECTION 143(3) OF THE ACT ON 21.03.1985 AND FINALLY AN ADDITION OF RS.5,65,30 0/- WAS MADE IN THE ASSESSMENT ON ACCOUNT OF UN-EXPLAINED INVESTMENT, WHICH WAS BA SED ON THE POCKET DIARY REQUISITIONED BY THE REVENUE UNDER SECTION 132A OF THE ACT. THE ASSESSING OFFICER, VIDE HIS ORDER DATED 08-02-1991 INVOKED TH E PROVISIONS OF SECTION 145(2) OF THE ACT AND THE VERSION OF THE ASSESSEE WAS REJE CTED ALTOGETHER. THE CIT(A), VIDE ITS ORDER DATED 23.04.1992, UPHELD THE ASSESSM ENT FRAMED BY THE ASSESSING OFFICER AND ALSO HIS ACTION OF INVOKING THE PROVISI ONS OF SECTION 145(2) OF THE ACT. ACCORDINGLY, ADDITION OF RS.5,65,300/- WAS CONFIRME D. ON FURTHER APPEAL FILED BY THE ASSESSEE, THE MATTER WAS CONSIDERED BY THE TRIB UNAL AND IT TOOK THE VIEW THAT THE DIARY SEIZED DURING INSPECTION OF THE PREMISES OF THE ASSESSEE COULD NOT CONSTITUTE, A BASIS FOR MAKING ADDITION OF RS.5,65, 300/-. THE TRIBUNAL IN ITS ORDER DATED 25-6-1993 UNEQUIVOCALLY CONDEMNED THE APPROAC H ADOPTED BY THE CIT(A) IN PARAGRAPH NOS. 6.1 & 6.2 IN ITS ORDER DATED 23.04.1 992. IN CONCLUDING PARAGRAPH NO.22, THE TRIBUNAL CATEGORICALLY HELD THAT NO ADDI TION WAS JUSTIFIED ON THE BASIS OF ENTRIES IN THE IMPOUNDED DIARY WRITTEN IN HAND OF O NE OF THE PARTNERS SHRI MANJIT SINGH IN THE CASE OF THE FIRM AND WENT ON TO ADD ON LY A SUM OF RS.55,000/- AS AGAINST THE DECLARED INCOME BY THE ASSESSEE OF RS.1 4,240/-. UNDER THE FACTS AND CIRCUMSTANCES, THE COURT HELD AS UNDER:- (PAGE NOS. 246-247) ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 17 WE HAVE THOUGHTFULLY CONSIDERED THE SUBMISSIONS MA DE BY THE LEARNED COUNSEL FOR THE REVENUE AND ARE OF THE VIEW THAT THIS REFERENCE PETITION IS LIABLE TO BE RETURNED UNANSWERED BECAUS E NO QUESTION OF LAW WOULD ARISE FOR OUR DETERMINATION. THE TRIBUNAL WHI LE ANALYZING THE APPROACH ADOPTED BY THE CIT(A) HAS REACHED A CONCLU SION THAT THE ASSESSING OFFICER AS WELL AS THE CIT(A) HAVE FAILED TO APPRECIATE THE CONTENTION ADVANCED BY THE ASSESSEE THAT THE ENTRIE S MADE IN THE DIARY WERE IMAGINARY, ESPECIALLY THE FACT THAT NEITHER AN Y SHAGUN WAS TAKEN NOR THERE WAS ANY GIRL BY THE NAME OF DOLLY IN WHOSE MA RRIAGE EXPENSES WERE INCURRED. FURTHER NO PLOT WAS PURCHASED ON WHICH EX PENSES COULD BE INCURRED. IN RESPECT OF THE ENTRIES IN THE DIARY D ESHI SHARAB THEKA, THE TRIBUNAL HAS TAKEN THE VIEW THAT THE ASSESSEE OR IT S PARTNERS HAD NEVER TAKEN SUCH A LIQUOR VEND AND THE REVENUE WAS NOT AB LE TO CONNECT THE ASSESSEE WITH ANY SUCH ACTIVITY AFTER DUE VERIFICAT ION FROM THE EXCISE DEPARTMENT. EVEN THE FIAT CAR BEARING REGISTRATION NO. PUL-7649 WAS NOT REGISTERED IN THE NAME OF ANY OF THE PARTNERS. IT WAS, IN FACT, REGISTERED IN THE NAME OF ONE MOHINDER SINGH AND, T HEREFORE, NO ADDITION ON THAT ACCOUNT COULD HAVE BEEN MADE. IT IS ON THE BASIS OF THE AFOREMENTIONED FINDINGS OF FACT RECORDED BY THE TRI BUNAL THAT IT WAS CONCLUDED THAT THE ENTRIES WERE IMAGINARY AND NO RE LIANCE COULD HAVE BEEN PLACED ON SUCH ENTRIES FOR THE PURPOSES OF CON STITUTING A BASIS FOR RECORDING AN ASSESSMENT ORDER. THEREFORE, WE ARE OF THE VIEW THAT NO QUESTION OF LAW WOULD ARISE AS THE ORDER OF THE TRI BUNAL IS BASED ON PURE FINDINGS OF FACT. ACCORDINGLY, THE QUESTION REFERRE D DOES NOT NEED TO BE ANSWERED AND THE REFERENCE IS RETURNED UNANSWERED. 13.3 COMMISSIONER OF INCOME-TAX, SALEM V. P.V. KALYANAS UNDARAM (294 ITR 49) (2007] 164 TAXMAN 78 (SC ) . THE BRIEF FACTS OF THIS CASE ARE THAT THE ASSESSEE VIDE A REGISTERED SALE DEED PURCHASED CERT AIN LAND, FOR A SUM OF RS.4.10 LAKHS. SUBSEQUENT TO THE PURCHASE OF LAND, CERTAIN NOTES ON LOOSE SHEETS ALLEGEDLY WRITTEN BY HIM WERE FOUND AND SEIZED BY THE REVENUE DURING A SEARCH OPERATION. WHEN CONFRONTED, THE ASSESSEE CONTENDED THAT HE COU LD NOT REMEMBER AS TO WHY THE NOTING HAD BEEN MADE. BUT THE VENDOR, IN HIS ST ATEMENTS, ADMITTED THAT HE HAD ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 18 IN FACT RECEIVED A TOTAL CONSIDERATION OF RS.34.35 LAKHS AND THAT THE SUM OF RS.4.10 LAKHS REFLECTED IN THE SALE DEED HAD BEEN RECEIVED BY HIM BY WAY OF A DEMAND DRAFT AND THE BALANCE IN CASH. SUBSEQUENTLY, VENDOR RETRA CTED FROM HIS STATEMENTS. THE ASSESSING OFFICER, HOWEVER, CONCLUDED THAT THE SALE CONSIDERATION WAS ACTUALLY RS.34.85 LAKHS AND NOT RS.4.10 LAKHS AS HAD BEEN RE CITED IN THE SALE DEED. HE ACCORDINGLY ADOPTED THE AFORESAID ENHANCED FIGURE F OR THE PURPOSE OF ASSESSMENT AND MADE AN ADDITION OF RS.3,75,005/- AS UNDISCLOSE D INCOME. ON APPEAL, THE COMMISSIONER (APPEALS) OBSERVING THAT THE STATEMENT S GIVEN BY THE VENDOR COULD NOT BE RELIED UPON, DELETED THE ADDITION. AN APPEAL PREFERRED THERE AGAINST BY THE REVENUE WAS DISMISSED BY THE TRIBUNAL. ON FURTHER APPEAL UNDER SECTION 260A, THE HIGH COURT DISMISSED THE SAME IN LIMINE BY HOLD ING THAT NO SUBSTANTIAL QUESTIONS OF LAW HAD BEEN RAISED BY THE REVENUE. U NDER THE FACTS AND CIRCUMSTANCES, THE APEX COURT HELD AS UNDER:- ...............WE ARE OF THE OPINION THAT THE THRE E QUESTIONS REPRODUCED ABOVE CAN, IN NO WAY, BE CALLED SUBSTANTIAL QUESTIO NS OF LAW. THE FACT AS TO THE ACTUAL SALE PRICE OF THE PROPERTY, THE IMPLI CATION OF THE CONTRADICTORY STATEMENTS MADE BY RAJARATHINAM OR WH ETHER RELIANCE COULD BE PLACED ON THE LOOSE SHEETS RECOVERED IN TH E COURSE OF THE RAID ARE ALL QUESTIONS OF FACT. WE THEREFORE FIND NO INFIRMI TY IN THE ORDER OF THE HIGH COURT. ACCORDINGLY, WE DISMISS THE APPEAL. 13.4 THE ISSUE PERTAINING TO ADDITION ON THE BASIS OF LOOSE PAPERS FOUND AT THE TIME OF SEARCH WHEREIN THE A.O. MADE THE ADDITION W ITHOUT CONDUCTING ANY ENQUIRY ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 19 HAS BEEN CONSIDERED BY I.T.A.T., ALLAHABAD BENCH IN CASE OF ITNO.185/ALLD/2011 FOR A.Y. 2009-10 IN THE CASE OF ASSTT. COMMISSIONER OF INCOME TAX VS. M/S. CARPET INTERNATIONAL PVT. LTD., ORDER DATED 13.12.2 012, THE RELEVANT FINDING OF THE I.T.A.T. ARE AS UNDER :- 8. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PA RTIES AND RECORDS PERUSED. THE UNDISPUTED FACTS OF THE CASE ARE THAT ANNEXURE- A TO PANCHANAMA DATED 11.02.2009 SHOWS THAT RS.10,6 9,69,000/- WERE PAID TO THE ASSESSEE, M/S. CARPET INTERNATIONA L PVT. LTD VIDE CHEQUE NO.834495 DATED 19.07.2008 BY SISTER CONCERN M/S. CARPET INTERNATIONAL. THE EXPLANATION OF THE ASSESSEE WAS THAT THE AMOUNT WAS RECEIVED AGAINST THE CARPET SOLD BY THE ASSESSE E AND WHICH WAS PURCHASED BY THE SISTER CONCERN M/S. CARPET INTERNA TIONAL. THE SAID GOODS PURCHASED FROM THE ASSESSEE BY THE SISTER CON CERN WAS SOLD TO M/S. IKEA TRADING (INDIA) LIMITED. THE ASSESSEE FU RNISHED THE NECESSARY EVIDENCE IN SUPPORT OF THIS TRANSACTION I NCLUDING A CERTIFICATE FROM M/S. IKEA TRADING (INDIA) LIMITED. THE BOOKS OF ACCOUNT WERE SUBJECT TO AUDIT AND BOOKS OF ACCOUNTS AND AUDIT REPORT WERE SUBMITTED BEFORE THE A.O. THE QUANTITY DETAIL S OF PURCHASE, SALES & STOCK WERE ALSO FURNISHED AND THE SAME IS A LSO INCLUDED IN TAX AUDIT REPORT. THE A.O. MADE THE ADDITION ON THE BA SIS OF ASSUMPTION THAT THE ASSESSEE DID NOT FURNISH EVIDENCE IN RESPE CT OF PURCHASE OF GOODS SOLD TO SISTER CONCERN M/S. CARPET INTERNATIO NAL AGAINST WHICH THE ASSESSEE RECEIVED THE IMPUGNED SALE CONSIDERATI ON OF RS.10,69,69,000/-. THE A.O. NOTED THAT DURING THE ASSESSMENT PROCEEDINGS THE ASSESSEE PRODUCED THE PURCHASE REGI STER, BUT IN THE VIEW OF A.O. WHICH HAS GOT NO EVIDENTIARY VALUE BEC AUSE THE SAME HAS BEEN PREPARED AFTER THE ASSESSEE WAS CAUGHT. THE A .O. HAS FAILED TO POINT OUT ANY OTHER DEFECT IN THE SAID PURCHASE REG ISTER PRODUCED BY THE ASSESSEE. THE OBSERVATION OF THE A.O. IS ON PR ESUMPTION BASIS THAT THE SAID PURCHASE REGISTER WAS PREPARED AFTER THE A SSESSEE HAS BEEN CAUGHT. THIS FINDING OF THE A.O. IS NOT CORRECT AS THESE FACTS HAVE BEEN NOTED BY THE CIT(A) IN HIS ORDER. TRANSACTION WAS RECORDED IN LEDGER ACCOUNTS WHICH WERE FOUND AND SEIZED AT THE TIME OF SEARCH. 9. THE A.O. ASKED THE ASSESSEE, AS NOTED BY HIM IN PARA NO.4.4 OF HIS ORDER, THAT WHY THE IMPUGNED AMOUNT MAY NOT BE TREATED AS UNEXPLAINED EXPENDITURE AND ACCORDINGLY ADD TO THE TOTAL INCOME OF ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 20 THE ASSESSEE UNDER SECTION 69C OF THE ACT. FINALLY , THE A.O. MADE THE ADDITION WITH THE OBSERVATION THAT THE ALLEGED PURC HASES WERE NEVER MADE BY THE ASSESSEE. THE ASSESSEE HAS DONE A WIND OW DRESSING FOR ACCOMMODATING THE UNACCOUNTED RECEIPT AFTER A FAMIL Y PARTITION. IN THE LIGHT OF THE FACT, IF WE CONSIDER SECTION 69C O F THE ACT WHICH PROVIDES THAT WHERE IN ANY FINANCIAL YEAR AN ASSESS EE HAS INCURRED ANY EXPENDITURE AND HE OFFERS NO EXPLANATION ABOUT THE SOURCE OF SUCH EXPENDITURE OR PART THEREOF, OR THE EXPLANATION, IF ANY, OFFERED BY HIM IS NOT, IN THE OPINION OF THE A.O., SATISFACTORY, T HE AMOUNT COVERED BY SUCH EXPENDITURE MAY BE DEEMED TO BE THE INCOME OF THE ASSESSEE FOR SUCH FINANCIAL YEAR. AS STATED ABOVE THAT THE IMPU GNED AMOUNT IS RECEIVED TO THE ASSESSEE AND NOT AN AMOUNT OF EXPEN DITURE, WHEREAS, SECTION 69C OF THE ACT IS IN RESPECT OF EXPENDITURE . IT IS PRESUMPTION OF THE A.O. THAT THE IMPUGNED AMOUNT RECEIVED TO TH E ASSESSEE IS AGAINST THE SALE OF GOODS AND THE SAID GOODS WERE N OT IN FACT PURCHASED BY THE ASSESSEE. THE FINDING OF THE A.O. IS A VAGUE FINDING. IT IS MERELY A PRESUMPTION OF THE A.O. THE A.O. ME RELY ON PRESUMPTION STATED THAT NO EVIDENCE OF ALLEGED PURC HASE WAS FOUND AND SEIZED DURING SEARCH. NO OTHER RELEVANT CONTRA RY MATERIAL WAS FOUND AT THE TIME OF SEARCH. THE ASSESSEE DISCHARG ED ITS BURDEN BY FURNISHING PURCHASE REGISTER AND OTHER RECORDS BEFO RE THE A.O. THE A.O. HAS SIMPLY REJECTED ON THE PRESUMPTION THAT IT WAS PREPARED LATER ON. IN SUCH A CIRCUMSTANCES, WHERE THE AMOUNT FOUN D TO BE RECEIVED TO THE ASSESSEE AND THE A.O. WANT TO TAX THE SAME, THE BURDEN IS ON THE A.O. TO ESTABLISH THAT IT WAS INCOME OF THE ASSESSE E. THE HONBLE SUPREME COURT IN THE CASE OF SUMAI DAYAL VS. CIT, 2 14 ITR 801 (SC) HELD THAT IN SUCH A SITUATION THE BURDEN LIES ON TH E DEPARTMENT. THE RELEVANT ABSTRACT OF THE OBSERVATION OF THE HONBLE APEX COURT IS AS UNDER:- IN ALL CASES IN WHICH A RECEIPT IS SOUGHT TO BE TA XED AS INCOME, THE BURDEN LIES ON THE DEPARTMENT TO PROVE THAT IT IS WITHIN THE TAXING PROVISION AND IF THE RECEIPT IS I N THE NATURE OF INCOME, THE BURDEN OF PROVING THAT IT IS NOT TAXABL E BECAUSE IT FALLS WITHIN THE EXEMPTION PROVIDED BY THE ACT LIES UPON THE ASSESSEE. 10. IF WE APPLY THE SAID LAW OF THE LAND LAID DOWN BY THE HONBLE APEX COURT TO THE FACTS OF THE CASE UNDER CONSIDERA TION, WE FIND THAT THE A.O. HAS COMPLETELY FAILED TO DISCHARGE HIS ONU S TO PROVE THAT THE IMPUGNED AMOUNT IS WITHIN THE TAXING PROVISION. EV EN THE A.O. HAS FAILED TO ESTABLISH UNDER WHICH SECTION OF I.T. ACT HE IS GOING TO MAKE ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 21 THE ADDITION. WHEN THE A.O. HAS FAILED TO DISCHARG E THE ONUS, THE ADDITION IS NOT WARRANTED. 11. ON A PERUSAL OF THE ORDER OF CIT(A), WE NOTICE THAT THE CIT(A) RECORDED THE FACT THAT THE A.O. HAS FAILED TO MAKE ANY INDEPENDENT ENQUIRY. HE HAS SIMPLY RELIED UPON THE VERSION OF SEARCH PARTY BY PUTTING HIS LEGS IN THE SHOES OF OTHERS. THE CIT(A ) NOTED THAT THE A.O. HAS WRONGLY OBSERVED THAT THE PAYMENT OF ACCOUNT PA YEE CHEQUE IS NOT VERIFIABLE, WHEREAS, THE PAYMENT IS FULLY VERIFIABL E FROM THE BANK STATEMENT OF THE ASSESSEE. THE SO-CALLED DIARY AS PER ANNEXURE-A, S.NO.A-8 OF PANCHANAMA DATED 12.12.2009 ON WHICH TH E A.O. HAS HEAVILY RELIED WAS SEIZED FROM M/S CARPET INTERNATI ONAL AND NOT FROM THE PREMISES OF THE ASSESSEE. THE CIT(A) DID NOT A GREE WITH THE A.O. TREATING THE AMOUNT AS WINDFALL GAIN ON FAMILY PART ITION. THE CIT(A) HELD THAT THE A.O. COULD NOT ESTABLISH WITH COGENT EVIDENCE THAT THE SAID AMOUNT CAME OUT OF FAMILY SETTLEMENT ON UNACCO UNTED MONEY. CONTRARY, THE CIT(A) FOUND THAT THE TRANSACTION WAS DULY RECORDED IN TWO LEDGERS SEIZED DURING THE SEARCH. HE HELD THAT THE MONEY WHICH HAS BEEN RECORDED IN THE BOOKS OF ACCOUNT CANNOT BE TREATED AS UNACCOUNTED. THE SAID LEGERS UNDER SEIZURE CANNOT BE SAID TO BE PREPARED AFTER THOUGHT. 12. IN THE LIGHT OF ABOVE DISCUSSIONS AND THE DETAI LED DISCUSSIONS MADE BY THE CIT(A), THE ADDITION MADE BY THE A.O. I S ON THE BASIS OF PRESUMPTION WITHOUT POINTING OUT THE PARTICULAR SEC TION UNDER WHICH THE ADDITION HAS BEEN MADE, AND WITHOUT DISCHARGING ONUS THAT SO- CALLED AMOUNT RECEIVED IS INCOME OF THE ASSESSEE AN D, THEREFORE, WE FIND THAT THE CIT(A) HAS RIGHTLY DELETED THE ADDITI ON. IN THE LIGHT OF THE FACTS, WE CONFIRM THE ORDER OF THE CIT(A). 14. IN THE LIGHT OF ABOVE BACKGROUND OF DISCUSSION, IF WE CONSIDER THE FACTS OF THE CASE UNDER CONSIDERATION WE FIND ON THE BASIS O F NOTING ON THESE LOOSE PAPERS THAT THESE PAPERS ARE DUMP PAPERS PARTICULARLY UNDE R THE CIRCUMSTANCES WHERE THE A.O. FAILED TO CONVERT THESE DOCUMENTS IN TO IN THE FORM OF EVIDENCES BY EXAMINING THOSE PAPERS, COLLECTING RELEVANT EVIDENCES AND MAT ERIAL AFTER EXAMINE RELEVANT ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 22 PARTIES AND MATERIALS THAT THERE WERE UNACCOUNTED I NCOME OR UNACCOUNTED INVESTMENTS. IN THIS REGARD, BURDEN OF PROOF IS ON REVENUE AS HELD BY THE HONBLE APEX COURT IN THE CASE OF COMMISSIONER OF INCOME-TA X VS. DAULAT RAM RAWATMULL [1973] 87 ITR 349 (SC) THE COURT HELD AS UNDER:- THE ONUS TO PROVE THAT THE APPARENT IS NOT THE REA L IS ON THE PARTY WHO CLAIMS IT TO BE SO. AS IT WAS THE DEPARTM ENT WHICH CLAIMED THAT THE AMOUNT OF FIXED DEPOSIT RECEIPT BELONGED T O THE RESPONDENT FIRM EVEN THOUGH THE RECEIPT HAD BEEN ISSUED IN TH E NAME OF B, THE BURDEN LAID ON THE DEPARTMENT TO PROVE THAT THE RES PONDENT WAS THE OWNER OF THE AMOUNT DESPITE THE FACT THAT THE RECEI PT WAS IN THE NAME OF B. A SIMPLE WAY OF DISCHARGING THE ONUS AND RESO LVING THE CONTROVERSY WAS TO TRACE THE SOURCE AND ORIGIN OF T HE AMOUNT AND FIND OUT ITS ULTIMATE DESTINATION. SO FAR AS THE SOURCE WAS CONCERNED, THERE WAS NO MATERIAL ON THE RECORD TO SHOW THAT THE AMOU NT CAME FROM THE COFFERS OF THE RESPONDENT-FIRM OR THAT IT WAS TENDE RED IN B CALCUTTA BRANCH OF THE CENTRAL BANK, ON BEHALF OF THE RESPON DENT. AS REGARDS THE DESTINATION OF THE AMOUNT, THERE WAS NOTHING TO SHOW THAT IT WENT TO THE COFFERS OF THE RESPONDENT. ON THE CONTRARY, THERE WAS POSITIVE EVIDENCE THAT THE AMOUNT WAS RECEIVED BY B. IT WOUL D THUS FOLLOW THAT BOTH AS REGARDS THE SOURCE AS WELL AS THE DESTINATI ON OF THE AMOUNT, THE MATERIAL ON THE RECORD GAVE NO SUPPORT TO THE C LAIM OF THE DEPARTMENT 14.1 IN THE CASE UNDER CONSIDERATION AS WE NOTICED THAT THE A.O. MADE THE ADDITION SIMPLY ON THE NOTING ON LOOSE PAPERS AND I N DIARY WITHOUT EXAMINING THE COMPLETE FACTS. AS PER THE A.O., THE NOTING PERTAI NS TO UNACCOUNTED ON-MONEY FOR THE PURCHASE OF IMMOVABLE PROPERTIES BUT THE A.O. F AILED TO EXAMINE THE DETAILS OF THOSE PROPERTIES AND TO EXAMINE THE CONCERNED PURCH ASER OR SELLER OF THE PROPERTIES. WHEREAS, THE ASSESSEE HAS FURNISHED SUFFICIENT MATE RIAL EVIDENCE AND DOCUMENTS IN SUPPORT OF THE FACT THAT NO ON-MONEY WAS PAID FOR T HE PURCHASE OF THOSE PROPERTIES. ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 23 THE A.O. HAD NO IOTA OF EVIDENCE IN THE FORM OF STA TEMENT OF PURCHASER OR SELLER OR REGISTERED DOCUMENTS OR OTHER MATERIAL WHICH COULD REPRESENT UNACCOUNTED INVESTMENT BY THE ASSESSEE. THE AO MADE THE ADDITIO NS ON GENERAL PRESUMPTION AS NOTED BY THE AO IN HIS ORDER AT PAGE 5 OF THE ASSES SMENT ORDER, IT IS WELL KNOWN FACT USUALLY IN ALL THE PROPERTY TRANSACTIONS UNACC OUNTED CASH ARE TRANSFERRED WITH CONVENIENCE OF BOTH PARTIES I.E. SELLER AND PURCHAS ER THUS ADDITION MADE BY THE AO ON GENERAL PRESUMPTION ARE NOT SUSTAINABLE. EVEN OTHERWISE ALSO WHEN THE AO KNEW THIS PRACTICE THEN HE SHOULD HAD MAKE RELEVANT ENQUIRIES BEFORE MAKING THE ADDITIONS. THE A.O. HAS FAILED TO APPRECIATE THE CO NTENTION OF THE ASSESSEE THAT THE ENTRIES IN LOOSE PAPERS AND DIARY WERE IMAGINARY, E SPECIALLY UNDER THE FACTS AND CIRCUMSTANCES WHERE ALLEGED ENTRIES PERTAINING TO I MMOVABLE PROPERTIES WHICH WAS PURCHASED FROM IDENTIFIABLE PERSONS. THERE IS NO O THER EVIDENCE ON RECORD TO SHOW THAT THE SELLER HAS RECEIVED THE ADDITIONAL AMOUNT THAN THE AMOUNT RECORDED IN THE REGISTERED DOCUMENTS. THE CIT(A) NOTED THE FACT TH AT THE A.O APPEARED BEFORE HIM ON 25.03.2011 ALONG WITH CASE RECORDS AND RELEV ANT DOCUMENTS. THE CIT(A) NOTED THAT THE CASE WAS DISCUSSED WITH A.R. AND A.O . ELABORATELY BUT AO FAILED ESTABLISHED THAT HE MADE THE ADDITIONS AFTER PROPER AND RELEVANT ENQUIRIES. HE FURTHER NOTED THAT THE AO FAILED BRING ANY MATERIAL TO SHOW THAT THOSE LOOSE PAPERS WERE HAVING SOME UNACCOUNTED INCOME OR INVESTMENTS. THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. ATAM VALV ES (P.) LTD., 332 ITR 468 (P&H) WHEREIN DURING THE COURSE OF SURVEY CERTAIN I NCREMENTING DOCUMENTS WERE ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 24 FOUND INCLUDING SLIP PAD CONTAINING WAGES OF VARI OUS PERSONS. THE COURT HELD THAT THE A.O. HAD NO IOTA OF EVIDENCE IN THE FORM O F SALE BILL OR BANK ACCOUNT OR MOVEABLE OR IMMOVABLE PROPERTY WHICH COULD REPRESEN T UNACCOUNTED INCOME OF THE ASSESSEE. IN THE CASE UNDER CONSIDERATION, TH E A.O. DID NOT FIND ANY EVIDENCE BASED ON WHICH IT CAN BE SAID THAT THE ASSESSEE HAS PAID UNACCOUNTED ON-MONEY FOR THE PURCHASE OF PROPERTY. THE HONBLE PUNJAB & HAR YANA HIGH COURT IN ANOTHER JUDGEMENT IN THE CASE OF CIT VS. KHAZAN SINGH & BRO S., 304 ITR 243 WHEREIN A POCKET DIARY WAS IMPOUNDED. THE COURT HELD THAT TH ESE ENTRIES WERE IMAGINARY. RELIANCE COULD HAVE NOT BEEN PLACED ON SUCH ENTRIES FOR THE PURPOSE OF CONSTITUTING A BASIS FOR RECORDING IN ASSESSMENT ORDER. THE APE X COURT IN THE CASE OF CIT VS. P.V. KALYANASUNDARAM, 294 ITR 49 WHEREIN THE ASSES SEE PURCHASED CERTAIN LAND FOR SUM OF RS.4.10 LACS AND CERTAIN NOTES ON LOOSE SHEETS WERE FOUND DURING A SEARCH OPERATION. THE APEX COURT HELD THAT THAT TH E FACTS AS TO THE ACTUAL SALE PRICE OF THE PROPERTY, THE IMPLICATION OF CONTRADICTORY S TATEMENT OR WHETHER RELIANCE COULD BE PLACED ON THE LOOSE SHEETS RECOVERED IN TH E COURSE OF RAID, ARE ALL QUESTIONS OF FACTS. IN THE CASE OF CIT VS. DAULAT RAM RAWATMALL, 87 ITR 349 (SC) WHEREIN BRIEF FACTS OF THAT CASE WERE THAT THE FIRM OBTAINED AN OVERDRAFT ACCOUNT AS A COLLATERAL SECURITY, FIXED DEPOSITS IN THE NAME O F SON OF A PARTNER WERE UTILIZED. WHETHER A FINDING CAN BE REACHED THAT THE AMOUNT BE LONGS TO THE FIRM REJECTING THE EXPLANATION OF THE HOLDER OF THE FIXED DEPOSIT? TH E FACT THAT THE HOLDER OF THE DEPOSIT COULD NOT GIVE SATISFACTORY EXPLANATION REG ARDING THE SALES WOULD NOT BE ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 25 DECISIVE. THE MATERIAL ON RECORD DID NOT SUPPORT T HE CLAIM OF THE DEPARTMENT THAT THE AMOUNT BELONGED TO THE FIRM. THE COURT HELD TH AT SINCE IT WAS THE DEPARTMENT THAT CONTENDED THAT THE AMOUNT BELONGED TO THE FIRM , EVEN THOUGH THE DEPOSIT WAS IN SOMEBODY ELSE'S NAME, IT WAS FOR THE DEPARTMENT TO ADDUCE NECESSARY EVIDENCE IN THIS REGARD. THE ONUS TO PROVE THAT THE APPAREN T IS NOT THE REAL IS ON THE PARTY WHO CLAIMS IT TO BE SO. AS IT WAS THE DEPARTMENT W HICH CLAIMED THAT THE AMOUNT OF FIXED DEPOSIT RECEIPT BELONGED TO THE RESPONDENT FI RM EVEN THOUGH THE RECEIPT HAD BEEN ISSUED IN THE NAME OF BISWANATH, THE BURDEN LAY ON THE DEPARTMENT TO PROVE THAT THE RESPONDENT WAS THE OWNER OF THE AMOUNT DES PITE THE FACT THAT THE RECEIPT WAS IN THE NAME OF BISWANATH. A SIMPLE WAY OF DISC HARGING THE ONUS AND RESOLVING THE CONTROVERSY WAS TO TRACE THE SOURCE A ND ORIGIN OF THE AMOUNT AND FIND OUT ITS ULTIMATE DESTINATION. SO FAR AS THE SOURCE IS CONCERNED, THERE IS NO MATERIAL ON THE RECORD TO SHOW THAT THE AMOUNT CAME FROM THE COFFERS OF THE RESPONDENT- FIRM OR THAT IT WAS TENDERED IN BURRABAZAR CALCUTTA BRANCH OF THE CENTRAL BANK, ON NOVEMBER 15, 1944, ON BEHALF OF THE RESPONDENT. AS REGARDS THE DESTINATION OF THE AMOUNT, IT HAS ALREADY BEEN MENTIONED THAT THERE IS NOTHING TO SHOW THAT IT WENT TO THE COFFERS OF THE RESPONDENT. ON THE CONTRARY, THE RE IS POSITIVE EVIDENCE THAT THE AMOUNT WAS RECEIVED BY BISWANATH ON JANUARY 22, 194 6. IT WOULD THUS FOLLOW THAT BOTH AS REGARDS THE SOURCE AS WELL AS THE DESTINATI ON OF THE AMOUNT; THE MATERIAL ON THE RECORD GIVES NO SUPPORT TO THE CLAIM OF THE DEP ARTMENT. IN THE CASE UNDER CONSIDERATION, THE CIT(A) ACCEPTED THE ASSESSEES C ONTENTION THAT THESE ARE DUMP ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 26 NOTING JUST PROJECTION AND CALCULATION OF FUTURE RE NT OF PROPERTIES PROPOSED TO BE LET OUT. THE ASSESSEE HAS FURNISHED THE SUFFICIENT MAT ERIAL IN SUPPORT OF THEIR CONTENTION. THUS, THE ASSESSEE HAS DISCHARGED HIS BURDEN IN THIS REGARD, WHEREAS, THE REVENUE HAS FAILED TO DISCHARGE THE BURDEN. UN DER THE FACTS AND CIRCUMSTANCES, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CI T(A). THE ORDER OF CIT(A) IS CONFIRMED ON THE ISSUE. 15. THE BRIEF FACTS OF 5 TH GROUND ARE THAT THE A.O. WORKED OUT A RENTAL INCOME OF PROPERTY NO. 1, 2, 3, MSX MALL GREATER NOIDA AT RS. 2,92,387/-. THE ADDITION MADE BY THE A.O. HAS BEEN ACCEPTED BY THE CIT(A) ON THE GROUND THAT NEITHER THE SAID PROPERTY HAS BEEN TRANSFERRED FROM THE BUILDER TO THE ASSESSEE NOR IT IS IN POSSESSION OF THE ASSESSEE. THE CIT(A) AFTER VERIF ICATION ACCEPTED THE ASSESSEES CONTENTION THAT THE ASSESSEE MADE AN ADVANCE OF RS. 30,00,000/- THROUGH D.D. FOR THE PURCHASE OF THE SAID PROPERTY AND THE BUILDER W AS PAYING INTEREST THEREON TILL THE SAME IS TRANSFERRED TO THE ASSESSEE. THE ASSESSEE HAS DECLARED INTEREST OF RS.2,78,464/- FOR FOUR MONTHS ACTUALLY RECEIVED BY THE ASSESSEE. THE CIT(A) HELD THAT THE PROPERTY WAS NOT GIVEN ON RENT, THEREFORE, THERE IS NO QUESTION OF HAVING RENTAL INCOME. 16. LD. DEPARTMENTAL REPRESENTATIVE RELIED UPON THE ORDER OF THE A.O. WHEREAS THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT TH E ASSESSING OFFICER HAS ADDED ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 27 RENTAL INCOME FROM PROPERTIES WHICH THE ASSESSEE HA S ALREADY DECLARED IN THE RETURN. THE DIFFERENCE OF THE INCOME RETURNED AND ASSESSED IS DUE TO THE WRONG ADOPTION OF PERIOD OF TENANCY. THE ASSESSING OFFIC ER HAS COUNTED THE PERIOD FROM THE DATE OF PURCHASE OR REQUISITION OF THE PROPERTI ES WHEREAS THE ASSESSEE HAS TAKEN THE PERIOD GIVEN ON RENT AS PER LEASE DEED. THE AD DITION IS A DOUBLE TAXATION OF ONE INCOME. COPIES OF LEASE DEED WERE FURNISHED BEFORE THE REVENUE AUTHORITIES. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT TH E ASSESSEE HAS NO RENTAL INCOME FROM ANY OTHER PROPERTY OTHER THAN SHOWN IN THE RET URN OF INCOME. 17. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PA RTIES AND RECORDS PERUSED. WE NOTICE THAT THE A.O. DID NOT APPRECIATE THE FACT S OF THE CASE WHILE MAKING ADDITION OF RS.2,92,387/- ON ACCOUNT OF RENTAL INCO ME. THE EXPLANATION OF THE ASSESSEE THAT NEITHER THE PROPERTY HAS BEEN TRANSFE RRED TO THE ASSESSEES NOR THE POSSESSION WAS TAKEN BY THE ASSESSEE. THEREFORE, T HERE IS NO QUESTION OF RENTAL INCOME. AN ADVANCE OF RS.30,00,000/- WAS GIVEN AGA INST WHICH THE ASSESSEE RECEIVED THE INTEREST. THE SAID INTEREST HAS BEEN WRONGLY SHOWN AS INCOME FROM HOUSE PROPERTY. THE REVENUE HAS FAILED TO POINT OU T ANY CONTRARY MATERIAL TO THE FINDING OF THE CIT(A). UNDER THE FACTS AND CIRCUMS TANCES, WHEN THERE IS NO RENTAL INCOME, THE ADDITION CANNOT BE MADE ON PRESUMPTION OR ASSUMPTION BASIS. IT IS RELEVANT TO NOTE THAT IF THE ASSESSEE HAS WRONGLY S HOWN INCOME FORM HOUSE PROPERTY AND HAS CLAIMED DEDUCTION UNDER 24(A) OF T HE ACT, THE A.O. IS DIRECTED TO ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 28 WITHDRAW THAT DEDUCTION AND TAX THE INTEREST INCOME ACCORDINGLY. WITH THIS MODIFICATION, THE ORDER OF THE CIT(A) IS CONFIRMED. 18. THE GROUND NO.6 IS PERTAINING TO SECTION 292C OF THE ACT. 19. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PA RTIES AND RECORDS PERUSED. THIS GROUND APPEARS TO BE TAKEN AS GENERAL GROUND A S NO SPECIFIC ARGUMENT HAS BEEN ADVANCED IN THIS REGARD. THE GROUND ITSELF ST ATES THAT SECTION 292C OF THE ACT IS A REBUTTABLE ASSUMPTION. IN THE CASE UNDER CONS IDERATION, THE ASSESSEE HAS REBUTTED BY FILING NECESSARY EVIDENCE AND THE CIT ( A) HAS RIGHTLY APPRECIATED THOSE REBUTTAL SUPPORTED BY EVIDENCE AND MATERIAL. SINCE THE REVENUE HAS FAILED TO POINT OUT ANY SPECIFIC INSTANCE IN THIS REGARD, IN THE LI GHT OF THE FACT, WE DO NOT FIND ANY SUBSTANCE IN THIS GROUND OF APPEAL. 20. GROUND NOS.7 & 8 ARE GENERAL IN NATURE, REQUIRE NO INDEPENDENT FIND ING. 21. IN THE RESULT, ITA NO.177/ALLD/2011 IS DISMISSE D. ITA NO.178/ALLD/2011 FOR A.Y. 2009-10 IN THE CASE O F SHRI NITIN BARANWAL :- 22. THE GROUNDS OF APPEALS RAISED BY THE REVENUE IN THE ABOVE APPEAL ARE AS UNDER :- ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 29 1. THE LD. CIT(A) WAS NOT JUSTIFIED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.28,91,050/- MADE U/S 69 OF THE A CT, ON ACCOUNT OF INVESTMENT IN PROPERTY AT GURGAON, WITHOUT APPRECI ATING THE FACT THAT THE ADDITION WAS MADE ON THE BASIS OF DOCUMENTS SEI ZED FROM THE RESIDENCE OF THE ASSESSEE AND THE SAME WAS NOT SHOW N IN ALLOTMENT LETTER, FOUND AND SEIZED DURING THE COURSE OF SEARC H. 2. THE LD. CIT(A) WAS NOT JUSTIFIED IN LAW AND ON F ACTS IN DELETING THE ADDITION OF RS.28,91,050/-, WITHOUT APPRECIATI NG THE FACT THAT THE INVESTMENT OF RS.28,91,050/- WAS UNACCOUNTED INVEST MENT AS EVIDENCED FROM THE DOCUMENTS FOUND DURING THE COURS E OF SEARCH WHICH CONSTITUTED AN ADMISSIBLE EVIDENCE IN TERMS O F PROVISIONS OF SECTION 292C OF THE I.T. ACT. 3. THE LD. CIT(A) WAS NOT JUSTIFIED IN LAW AND ON F ACTS IN DELETING THE ADDITION OF RS.34,58,000/- ON ACCOUNT OF INVES TMENT IN PROPERTY AT GURGAON, WITHOUT APPRECIATING THE FACT THAT THE AD DITION WAS MADE ON THE BASIS OF DOCUMENTS SEIZED FROM THE RESIDENCE OF THE ASSESSEE AND THE SAME WAS NOT SHOWN IN ALLOTMENT LETTER, FOUND A ND SEIZED DURING THE COURSE OF SEARCH. 4. THE LD. CIT(A) WAS NOT JUSTIFIED IN LAW AND ON F ACTS IN DELETING THE ADDITION OF RS.34,58,000/-, WITHOUT APPRECIATIN G THE FACT THAT NOTING AND JOTTING IN THE SEIZED DIARIES FOUND AT T HE TIME OF SEARCH ITSELF, WHICH CONSTITUTED AN EVIDENCE IN TERMS OF P ROVISIONS OF SECTION 292C OF THE I.T. ACT. 5. THE LD. CIT(A) WAS NOT JUSTIFIED IN LAW AND ON F ACTS IN DELETING THE ADDITION OF RS.3,69,675/- MADE ON ACCOUNT OF RE NTAL INCOME, WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HIM SELF HAD VOLUNTARILY DECLARED INCOME UNDER THE HEAD PROPERTY INCOME, W HICH AS PRESUMED AFTER THOUGH THE ASSESSEE WITHDREW, AND TH E SAME WAS STATEDLY OFFERED AS INTEREST INCOME. 6. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN IGNORING THE PROVISIONS OF SECTION 292C OF THE ACT, ACCORDIN G TO WHICH THE DOCUMENTS, BOOKS OF ACCOUNT, MONEY, BULLION, JEWELL ERY AND OTHER VALUABLE ARTICLES OR THING ARE FOUND DURING THE COU RSE OF SEARCH WILL BE PRESUMED TO BE BELONGING TO SUCH PERSONS AND THA T THE CONTENTS OF SUCH BOOKS OF ACCOUNT ARE TRUE. ACCORDINGLY AS PER THE PROVISIONS OF LAW, IT WAS FOR THE ASSESSEE TO REBUT THE EVIDENCE FOUND DURING THE ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 30 COURSE OF SEARCH AND NOT FOR THE AO TO PROVE THAT T HESE DOCUMENTS WERE TRUE AND BELONGS TO THE ASSESSEE. 7. THAT THE ORDER OF THE LD. CIT(A) DESERVES TO BE VACATED AND THE ASSESSMENT ORDER PASSED BY THE AO BE RESTORED. 8. THAT THE APPELLANT CRAVES LEAVE TO AMEND ANY ONE OR MORE OF THE GROUNDS OF THE APPEAL AS STATED ABOVE AS AND WH EN NEED FOR DOING SO MAY ARISE. 23. GROUND NOS.1 & 2 ARE IN RESPECT OF ADDITION OF RS.28,91,050/-. THE A.O. MADE THE ADDITION OF RS.28,91,050/- AS UNACCOUNTED CASH PAYMENT OF PURCHASE OF A PROPERTY AT UGF-48B PARSANATH CITY MALL, FARIDABAD ON THE BASIS OF SOME NOTING ON PAGE NO.1 OF ANNEXURE-A2 (66 NEELGAGAN DIARY). THE SAID PROPERTY HAS BEEN PURCHASED IN THE NAME OF SHRI NITIN BARANWAL, S/O. SHRI PRADEEP KUMAR BARANWAL AND SMT. SUMAN BARANWAL, W/O. SHRI PRADEEP KUMAR BA RANWAL. ON THE BASIS OF NOTING ON THE LOOSE PAPER, THE A.O. CALCULATED UNAC COUNTED CASH PAYMENT TOWARDS PURCHASE OF IMMOVABLE PROPERTY FOR RS.57,82,100/-. 50% OF THE SAID AMOUNT OF WHICH CALCULATION COMES TO RS.28,91,050/- WHICH HAS BEEN ADDED IN THE HANDS OF THE ASSESSEE UNDER SECTION 69 OF THE ACT. 24. GROUND NOS.3 & 4 ARE IN RESPECT OF ADDITION OF RS.34,58,000/-. SIM ILARLY, ON THE BASIS OF NOTING AT PAGE NO.5 OF ANNEXURE-A2 (NEELGAGAN DIARY) THE A.O. MADE THE ADDITION OF RS.34,58,000/- AS UNDISCLOSED CASH PAYMENT FOR PURCHASE OF PROPERTY AT B-311, COMMERCIAL UNIT, SECTOR 53, GURG AON. ON THE BASIS OF NOTING, THE A.O. CALCULATED THE TOTAL UNACCOUNTED PAYMENT O F RS.69,16,000/-. THE PROPERTY ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 31 WAS PURCHASED IN THE NAME OF SHRI NITIN BARANWAL, S /O. SHRI PRADEEP KUMAR BARANWAL AND SHRI PRADEEP KUMAR BARANWAL, S/O. SHRI YOGOESH PRASAD BARANWAL. THE A.O. CALCULATED 50% SHARE OF THE ASSESSEE AND M ADE ADDITION OF RS.34,58,000/-. 25. THE CIT(A) DELETED BOTH THE ADDITIONS ON THE GR OUND THAT THE A.O. HAS SIMPLY RELIED ON THE NOTING AND JOTTING ON THE DIAR Y WITHOUT ANY INDEPENDENT OR CORROBORATIVE OR DIRECT EVIDENCE TO PRESUME THAT TH E NOTING AND JOTTING RECORDED IN THE SAID DIARY HAS MATERIALIZED INTO ACTUAL TRANSAC TION GIVING RISE TO INCOME WHICH HAS NOT BEEN DISCLOSED BY THE ASSESSEE IN ITS BOOKS OF ACCOUNT. THE ASSESSEE HAS DISCHARGED THE BURDEN BY SUBMITTING SUFFICIENT EXPL ANATION AND DOCUMENTS THAT THE SAID NOTING WERE PROJECTION AND CALCULATION OF FUTU RE RENT AT WHICH THE PROPERTY WAS PROPOSED TO BE LET OUT. THE VALUE OF THE PROPERTY HAS BEEN ACCEPTED AS DECLARED BY THE ASSESSEE UNDER SECTION 52C OF THE ACT IN THE HA NDS OF THE SELLER SHRI ATUL. 26. AS REGARDS MISCELLANEOUS EXPENSES OF RS.48,400/ - NOTED BY THE A.O., THE CIT(A) HELD THAT THE ASSESSEE HAS ALREADY SHOWN THI S AMOUNT IN THE BALANCE SHEET. THEREFORE, NO SEPARATE ADDITION IS REQUIRED. ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 32 27. THE LD. REPRESENTATIVES OF THE PARTIES SUBMITTE D THAT THEIR SUBMISSIONS ARE SIMILAR TO THE SUBMISSIONS MADE IN THE CASE OF SHRI PRADEEP BARANWAL, ITA NO.177/ALLD/2011. 28. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PA RTIES AND RECORDS PERUSED. THE FACTS OF THE CASE UNDER CONSIDERATION ARE IDENT ICAL TO THE FACTS OF THE CASE IN ITA NO.177/ALLD/2011 IN THE CASE OF SHRI PRADEEP BA RANWAL WHEREIN A DETAILED DISCUSSION HAS BEEN MADE IN PARAGRAPH NOS.13 & 14 O F THIS ORDER. FOLLOWING THE SAID DISCUSSION, WE DO NOT FIND ANY INFIRMITY IN TH E ORDER OF CIT(A). THE ORDER OF CIT(A) IS CONFIRMED ON THE ISSUE AND ACCORDINGLY GR OUND NOS.1 TO 4 OF REVENUES APPEAL ARE DISMISSED. 29. GROUND NO.5 IS IN RESPECT OF ADDITION OF RS.3,69,675/-. DURING THE ASSESSMENT PROCEEDINGS, THE A.O. NOTICED THAT THE A SSESSEE WAS EARNING RENTAL INCOME FROM DIFFERENT PROPERTIES. THE A.O. NOTICED THAT THE RENTAL INCOME IN RESPECT OF TWO PROPERTIES HAS NOT BEEN REFLECTED IN THE RETURN OF INCOME. THE A.O. CALCULATED THE RENTAL INCOME OF TWO PROPERTIES AT R S.7,39,351/- AFTER ALLOWING STANDARD DEDUCTION UNDER SECTION 24(A) OF THE ACT. SINCE THE PROPERTY IS IN THE NAMES OF TWO PERSONS, THE A.O. MADE ONE AND HALF SH ARE OF THE SAID RENTAL INCOME IN THE HANDS OF THE ASSESSEE. ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 33 30. THE CIT(A) DELETED THE SAID ADDITION ACCEPTING THE ASSESSEES EXPLANATION AND CONTENTION THAT THE ASSESSEE HAS ALREADY DECLAR ED A RENTAL INCOME FROM TWO PROPERTIES AT RS.3,05,384/-. DETAILS OF THE SAID R ENT DECLARED BY THE ASSESSEE HAS BEEN REPRODUCED BY THE CIT(A) AT PAGE NO.11 OF HIS ORDER. THE A.O. HAS CALCULATED THE RENTAL INCOME AND MADE ADDITION OF R S.3,69,675/-, WHEREAS THE ASSESSEE HAS ALREADY DECLARED RENTAL INCOME OF TWO PROPERTIES AT RS.3,05,384/-. THE CIT(A) VERIFIED THE EVIDENCE OF DOCUMENTS AND L EASE DEED AND FOUND THAT THE CALCULATION OF THE ASSESSEE IS CORRECT. THE CIT(A) OBSERVED THAT THE A.O. HAS ADDED THE RENTAL INCOME BECAUSE OF MISINFORMATION GIVEN IN THE RELEVANT COLUMN OF RETURN REGARDING NAME OF TENANT AND HOUSE PROPER TY. SINCE THE ASSESSEE HAS STATED THAT HE HAS NOT OFFERED RENTAL PROPERTY OTHE R THAN THE ABOVE SHOWN PROPERTY AND THERE IS NO SUCH EVIDENCE THAT THE ASSESSEE HAS EARNED RENTAL INCOME THROUGH OTHER PROPERTIES ALSO. THE CIT(A) FOUND THAT THERE IS AN APPARENT HUMAN ERROR IN THE RETURN BASED ON WHICH ADDITION CANNOT BE MADE, AS OTHERWISE THAT WILL AMOUNT TO DOUBLE TAXATION OF THE SAME INCOME. 31. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PA RTIES AND RECORDS PERUSED. THE CIT(A) HAS GIVEN HIS FINDING THAT THE ASSESSEE HAS ALREADY SHOWN THE RENTAL INCOME OF TWO PROPERTIES FOR WHICH THE A.O. WANTS T O ADD THE RENTAL INCOME IN THE HANDS OF THE ASSESSEE. THE A.O., WITHOUT APPRECIAT ING THE FACT, MADE THE ADDITION. THE REVENUE HAS FAILED TO POINT OUT ANY CONTRARY MA TERIAL TO THE FINDING OF THE ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 34 CIT(A) BEFORE US. IN THE LIGHT OF THE DETAILED DIS CUSSIONS MADE IN CASE OF ITA NO.177/ALLD/2011 IN PARAGRAPH NO.17 OF THIS ORDER, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A). ORDER OF THE CIT(A) IS CONFIR MED ON THE ISSUE. 31.1 GROUND NO.6 IS PERTAINING TO SECTION 292C OF THE ACT WHICH IS SIMILAR TO GROUND NO.6 IN CASE PRADEEP BARANWAL, ITA NO.177/AL LD/2011 WHICH HAS BEEN DECIDED IN PARAGRAPH NO.19 OF THIS ORDER, FOLLOWING THE SAID DISCUSSIONS, THIS GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 31.2 GROUND NOS.7 & 8 ARE GENERAL IN NATURE, REQUIRE NO INDEPENDENT FIND ING. 32. IN THE RESULT, ITA NO.178/ALLD/2011 IS DISMISSE D. ITA NO.179/ALLD/2011 FOR A.Y. 2009-10 IN THE CASE O F SHRI RAJAT BARANWAL :- 33. THE GROUNDS OF APPEALS RAISED BY THE REVENUE IN THE ABOVE APPEAL ARE AS UNDER :- 1. THE LD. CIT(A) WAS NOT JUSTIFIED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.68,17,500/- MADE U/S 69 OF THE A CT, ON ACCOUNT OF INVESTMENT IN PROPERTY AT GURGAON, WITHOUT APPRECI ATING THE FACT THAT THE ADDITION WAS MADE ON THE BASIS OF DOCUMENTS SEI ZED FROM THE RESIDENCE OF THE ASSESSEE AND THE SAME WAS NOT SHOW N IN ALLOTMENT LETTER, FOUND AND SEIZED DURING THE COURSE OF SEARC H. ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 35 2. THE LD. CIT(A) WAS NOT JUSTIFIED IN LAW AND ON F ACTS IN DELETING THE ADDITION OF RS.68,17,500/-, WITHOUT APPRECIATI NG THE FACT THAT THE INVESTMENT OF RS.68,17,500/- WAS UNACCOUNTED INVEST MENT AS EVIDENCED FROM THE DOCUMENTS FOUND DURING THE COURS E OF SEARCH WHICH CONSTITUTED AN ADMISSIBLE EVIDENCE IN TERMS O F PROVISIONS OF SECTION 292C OF THE I.T. ACT. 3. THE LD. CIT(A) WAS NOT JUSTIFIED IN LAW AND ON F ACTS IN DELETING THE ADDITION OF RS.65,02,000/- ON ACCOUNT OF INVES TMENT IN PROPERTY AT GURGAON, WITHOUT APPRECIATING THE FACT THAT THE AD DITION WAS MADE ON THE BASIS OF DOCUMENTS SEIZED FROM THE RESIDENCE OF THE ASSESSEE AND THE SAME WAS NOT SHOWN IN ALLOTMENT LETTER, FOUND A ND SEIZED DURING THE COURSE OF SEARCH. 4. THE LD. CIT(A) WAS NOT JUSTIFIED IN LAW AND ON F ACTS IN DELETING THE ADDITION OF RS.65,02,000/-, WITHOUT APPRECIATIN G THE FACT THAT NOTING AND JOTTING IN THE SEIZED DIARIES FOUND AT T HE TIME OF SEARCH ITSELF, WHICH CONSTITUTED AN EVIDENCE IN TERMS OF P ROVISIONS OF SECTION 292C OF THE I.T. ACT. 5. THE LD. CIT(A) WAS NOT JUSTIFIED IN LAW AND ON F ACTS IN DELETING THE ADDITION OF RS.7,73,745/- MADE ON ACCOUNT OF RE NTAL INCOME, WITHOUT APPRECIATING THE FACT THAT THE A.O. HAS COM PUTED THE RENTAL INCOME ON THE BASIS OF FACTS ON RECORD AND ON THE B ASIS OF DOCUMENT FOUND AT THE TIME OF SEARCH. 6. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN IGNORING THE PROVISIONS OF SECTION 292C OF THE ACT, ACCORDIN G TO WHICH THE DOCUMENTS, BOOKS OF ACCOUNT, MONEY, BULLION, JEWELL ERY AND OTHER VALUABLE ARTICLES OR THING ARE FOUND DURING THE COU RSE OF SEARCH WILL BE PRESUMED TO BE BELONGING TO SUCH PERSONS AND THA T THE CONTENTS OF SUCH BOOKS OF ACCOUNT ARE TRUE. ACCORDINGLY AS PER THE PROVISIONS OF LAW, IT WAS FOR THE ASSESSEE TO REBUT THE EVIDENCE FOUND DURING THE COURSE OF SEARCH AND NOT FOR THE AO TO PROVE THAT T HESE DOCUMENTS WERE TRUE AND BELONGS TO THE ASSESSEE. 7. THAT THE ORDER OF THE LD. CIT(A) DESERVES TO BE VACATED AND THE ASSESSMENT ORDER PASSED BY THE AO BE RESTORED. ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 36 8. THAT THE APPELLANT CRAVES LEAVE TO AMEND ANY ONE OR MORE OF THE GROUNDS OF THE APPEAL AS STATED ABOVE AS AND WH EN NEED FOR DOING SO MAY ARISE. 34. GROUND NOS.1 & 2 PERTAIN TO ADDITION OF RS.68,17,500/- AND GROUND NOS.3 & 4 PERTAIN TO ADDITION OF RS.65,02,000/-. 35. THE A.O. MADE THE ADDITION OF RS.68,17,500/- ON THE BASIS OF NOTING AS PER ANNEXURE-A2, PAGE NO.4 (NO.66 NEELGAGAN DIARY). TH E SAID PROPERTY WAS PURCHASED IN THE NAMES OF THE ASSESSEE AND SHRI RAJ AT BARANWAL. THE A.O. CALCULATED THE TOTAL AMOUNT OF ADDITION OF RS.1,36, 35,000/- TREATING IT AS UNACCOUNTED CASH PAYMENT FOR PURCHASE OF THE SAID I MMOVABLE PROPERTY AT UNIT NO.309 ON THIRD FLOOR TOWER-A OF PARAS TWIN TOWERS, SECTOR-54, GURGAON. THE A.O. CALCULATED ONE AND HALF SHARE OF THE ASSESSEE AND MADE ADDITION OF RS.68,17,500/-. 36. SIMILARLY, ON THE BASIS OF ANNEXURE-A2, NEELGAG AN DIARY, THE A.O. CALCULATED TOTAL AMOUNT OF ADDITION OF RS.1,30,04,0 00/-. THE PROPERTY WAS PURCHASED IN THE NAME OF THE ASSESSEE AND SMT. SUMA N BARANWAL. THE PROPERTY IS ONE FLAT AT NEW DELHI. ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 37 37. THE CIT(A) DELETED BOTH THE ADDITIONS BY SIMILA R REASONS AS HAS BEEN GIVEN IN THE CASE OF SHRI NITIN BARANAL IN ITA NO.178/ALL D/2011. 38. WE HAVE HEAD THE LD. REPRESENTATIVES OF THE PAR TIES AND RECORDS PERUSED. WE FIND THAT THE SUBMISSIONS OF THE LD. REPRESENTATIVE S OF THE PARTIES WERE THAT THE FACTS OF THE CASE ARE SIMILAR TO THE FACTS OF THE CASE OF SHRI PRADEEP BARANWAL AND SHRI NITIN BARANWAL, SO THEIR CONTENTIONS ARE SIMILAR WH ICH WERE MADE IN THOSE CASES. 39. AFTER HEARING THE LD. REPRESENTATIVES OF THE PA RTIES, FOLLOWING THE ABOVE DISCUSSIONS MADE IN PARAGRAPH NO.13 & 14 OF THIS OR DER, WE CONFIRM THE ORDER OF CIT(A). THUS, GROUND NOS.1 TO 4 OF THE REVENUES A PPEAL ARE DISMISSED. 40. GROUND NO.5 IS IN RESPECT OF ADDITION OF RS.7,73,745/- ON ACCO UNT OF RENTAL INCOME. THE ADDITION MADE BY THE A.O. HAS BEEN DEL ETED BY THE CIT(A) ON SIMILAR REASONS AS GIVEN BY THE CIT(A) IN THE CASE OF SHRI NITIN BARANAL, ITA NO.178/ALLD/2011 THAT THE ASSESSEE HAS ALREADY SHOW N THE RENT OF RELATED PROPERTIES IN THE RETURN OF INCOME. IN THE LIGHT OF THE DETAI LED DISCUSSION MADE IN PARAGRAPH NO.17 WHILE DECIDING ITA NO.178/ALLD/2011 IN THE CA SE OF SHRI NITIN BARANAL, FOLLOWING THE SAID DISCUSSION, WE CONFIRM THE ORDER OF CIT(A). ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 38 40.1 GROUND NO.6 IS PERTAINING TO SECTION 292C OF THE ACT WHICH IS SIMILAR TO GROUND NO.6 IN CASE PRADEEP BARANWAL, ITA NO.177/AL LD/2011 WHICH HAS BEEN DECIDED IN PARAGRAPH NO.19 OF THIS ORDER, FOLLOWING THE SAID DISCUSSIONS, THIS GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 40.2 GROUND NOS.7 & 8 ARE GENERAL IN NATURE, REQUIRE NO INDEPENDENT FIND ING 41. IN THE RESULT, ITA NO.179/ALLD/2011 IS DISMISSE D. ITA NO.176/ALLD/2011 FOR A.Y. 2009-10 IN THE CASE O F SMT. SUMAN BARANWAL :- 42. THE GROUNDS OF APPEALS RAISED BY THE REVENUE IN THE ABOVE APPEAL ARE AS UNDER :- 1. THE LD. CIT(A) WAS NOT JUSTIFIED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.68,17,500/- MADE U/S 69 OF THE A CT, ON ACCOUNT OF INVESTMENT IN PROPERTY AT GURGAON, WITHOUT APPRECI ATING THE FACT THAT THE ADDITION WAS MADE ON THE BASIS OF DOCUMENTS SEI ZED FROM THE RESIDENCE OF THE ASSESSEE AND THE SAME WAS NOT SHOW N IN ALLOTMENT LETTER, FOUND AND SEIZED DURING THE COURSE OF SEARC H. 2. THE LD. CIT(A) WAS NOT JUSTIFIED IN LAW AND ON F ACTS IN DELETING THE ADDITION OF RS.68,17,500/-, WITHOUT APPRECIATI NG THE FACT THAT THE INVESTMENT OF RS.68,17,500/- WAS UNACCOUNTED INVEST MENT AS EVIDENCED FROM THE DOCUMENTS FOUND DURING THE COURS E OF SEARCH WHICH CONSTITUTED AN ADMISSIBLE EVIDENCE IN TERMS O F PROVISIONS OF SECTION 292C OF THE I.T. ACT. 3. THE LD. CIT(A) WAS NOT JUSTIFIED IN LAW AND ON F ACTS IN DELETING THE ADDITION OF RS.28,91,050/- ON ACCOUNT OF INVES TMENT IN PROPERTY AT GURGAON, WITHOUT APPRECIATING THE FACT THAT THE AD DITION WAS MADE ON ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 39 THE BASIS OF DOCUMENTS SEIZED FROM THE RESIDENCE OF THE ASSESSEE AND THE SAME WAS NOT SHOWN IN ALLOTMENT LETTER, FOUND A ND SEIZED DURING THE COURSE OF SEARCH. 4. THE LD. CIT(A) WAS NOT JUSTIFIED IN LAW AND ON F ACTS IN DELETING THE ADDITION OF RS.28,91,050/-, WITHOUT APPRECIATIN G THE FACT THAT NOTING AND JOTTING IN THE SEIZED DIARIES FOUND AT T HE TIME OF SEARCH ITSELF, WHICH CONSTITUTED AN EVIDENCE IN TERMS OF P ROVISIONS OF SECTION 292C OF THE I.T. ACT. 5. THE LD. CIT(A) WAS NOT JUSTIFIED IN LAW AND ON F ACTS IN DELETING THE ADDITION OF RS.65,02,000/- ON ACCOUNT OF UNACCO UNTED CASH PAYMENT FOR PURCHASE OF PROPERTY AT GURGAON, WITHOU T APPRECIATING THE FACT THAT NOTINGS IN THE SEIZED DOCUMENT REPRES ENTED THE UNACCOUNTED CASH PAYMENT MADE TO THE SELLER OF THE PROPERTY, OVER AND ABOVE THE AMOUNT MENTIONED IN THE SALE DEED. 6. THE LD. CIT(A) WAS NOT JUSTIFIED IN LAW AND ON F ACTS IN DELETING THE ADDITION OF RS.65,02,000/, WITHOUT APPRECIATING THE FACT THAT NOTING AND JOTTING IN THE SEIZED DIARY FOUND AT THE TIME OF SEARCH ITSELF, BEAR SUFFICIENT INDEPENDENT AND DIRECT EVIDENCE FOR RISING AT THE CONCLUSION BY THE A.O. THAT UNACCOUNTED CASH PAYMEN TS HAVE BEEN MADE TOWARDS PURCHASE OF PROPERTY. 7. THE LD. CIT(A) WAS NOT JUSTIFIED IN LAW AND ON F ACTS IN DELETING THE ADDITION OF RS.9,29,115/- MADE ON ACCOUNT OF RE NTAL INCOME, WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HIM SELF HAD VOLUNTARILY DECLARED INCOME UNDER THE HEAD, PROPERTY INCOME, WHICH AS PRESUMED AFTER THOUGH THE ASSESSEE WITHDREW, AND TH E SAME WAS STATEDLY OFFERED AS INTEREST INCOME. 8. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN IGNORING THE PROVISIONS OF SECTION 292C OF THE ACT, ACCORDIN G TO WHICH THE DOCUMENTS, BOOKS OF ACCOUNT, MONEY, BULLION, JEWELL ERY AND OTHER VALUABLE ARTICLES OR THING ARE FOUND DURING THE COU RSE OF SEARCH WILL BE PRESUMED TO BE BELONGING TO SUCH PERSONS AND THA T THE CONTENTS OF SUCH BOOKS OF ACCOUNT ARE TRUE. ACCORDINGLY AS PER THE PROVISIONS OF LAW, IT WAS FOR THE ASSESSEE TO REBUT THE EVIDENCE FOUND DURING THE COURSE OF SEARCH AND NOT FOR THE AO TO PROVE THAT T HESE DOCUMENTS WERE TRUE AND BELONGS TO THE ASSESSEE. ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 40 7. THAT THE ORDER OF THE LD. CIT(A) DESERVES TO BE VACATED AND THE ASSESSMENT ORDER PASSED BY THE AO BE RESTORED. 8. THAT THE APPELLANT CRAVES LEAVE TO AMEND ANY ONE OR MORE OF THE GROUNDS OF THE APPEAL AS STATED ABOVE AS AND WH EN NEED FOR DOING SO MAY ARISE. 43. GROUND NOS.1 & 2 ARE IN RESPECT OF ADDITION OF RS.68,17,500/-. THE ASSESSEE IS A CO-OWNER OF PROPERTY AT GURGAON AS TH E PROPERTY IS IN THE NAMES OF THE ASSESSEE AND SHRI RAJAT BARANWAL. SINCE THE ISSUE IS COMMON, THEREFORE, FOLLOWING THE DISCUSSIONS MADE IN THE CASE OF SHRI RAJAT BARA NWAL, ITA NO.179/ALLD/2011IN PARAGRAPH NO.39 OF THIS ORDER, WE CONFIRM THE ORDER OF CIT(A) ON THE ISSUE. THUS, GROUND NOS.1 & 2 OF THE REVENUES APPEAL ARE DISMIS SED. 44. GROUND NOS.3 & 4 PERTAIN TO ADDITION OF RS.28,91,050/- IN RESPECT O F PROPERTY AT GURGAON. THE ASSESSEE HAS ONE AND HALF SHARE AND ANOTHER ONE AND HALF SHARE IS OF SHRI NITIN BARANWAL. SIMILARLY ADDITIO N MADE IN THE CASE OF SHRI NITAIN BARANWAL HAS BEEN DELETED BY THE CIT(A) AND WE HAVE CONFIRMED THE ORDER OF CIT(A) WHILE DECIDING THE APPEAL IN THE CASE OF SHR I NITIN BARANAWL, ITA NO.178/ALLD/2011. FOLLOWING THE SAID DISCUSSIONS I N PARAGRAPH NO.28 OF THIS ORDER, THE ORDER OF CIT(A) IS CONFIRMED. THUS, GRO UND NOS.3 & 4 OF REVENUES APPEAL ARE DISMISSED. ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 41 45. GROUND NOS.5 & 6 ARE IN RESPECT OF ADDITION OF RS.65,02,000/-. THE ASSESSEE AND SHRI RAJAT BARANWAL IS CO-OWNERS OF TH E PROPERTY. ONE AND HALF SHARE OF ADDITION HAS BEEN MADE IN THE HANDS OF THE ASSES SEE AND ONE AND HALF SHARES IN THE HANDS OF SHRI RAJAT BARANWAL WHILE DECIDING THE APPEAL IN THE CASE OF SHRI RAJAT BARANWAL, ITA NO.179/ALLD/2011 WHEREIN WE HAV E CONFIRMED THE ORDER OF CIT(A) AFTER DETAILED DISCUSSIONS IN PARA NO.39 OF THIS ORDER. FOLLOWING THE SAID DISCUSSIONS, GROUND NOS.5 & 6 OF REVENUES APPEAL A RE DISMISSED. 46. GROUND NO.7 IS IN RESPECT OF ADDITION OF RS.9,29,115/- MADE BY THE A.O. ON ACCOUNT OF RENTAL INCOME. THE ADDITION MADE BY THE A.O. HAS BEEN DELETED BY THE CIT(A) ON THE GROUND THAT THE ASSESSEE HAS ALREADY DISCLOSED THE RENTAL INCOME OF TWO PROPERTIES IN THE RETURN OF INCOME. THE ISSUE IS SIMILAR TO THE GROUND NO.5 IN THE CASE OF SHRI RAJAT BARANWAL, ITA NO.179/ALLD/20 11. FOLLOWING THE SAID DISCUSSION IN PARAGRAPH NO.40, WE CONFIRM THE ORDER OF CIT(A). IN THE LIGHT OF THE FACT, GROUND NO.7 OF REVENUES APPEAL IS DISMISSED. 47. GROUND NO.8 IS IN RESPECT OF SECTION 292C OF THE ACT. THIS IS SUE HAS ALSO BEEN DECIDED IN THE CASE OF SHRI PRADEEP BARANWAL, ITA NO.177/ALLD/2011 IN PARAGRAPH NO.29.1 OF THIS ORDER. FOLLOWING THE SAI D DISCUSSION, THIS GROUND OF REVENUES APPEAL IS ALSO DISMISSED. ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 42 48. GROUND NOS.9 & 10 ARE GENERAL IN NATURE, REQUIRE NO INDEPENDENT FIND ING. 49. IN THE RESULT, ITA NO.176/ALLD/2011 IS DISMISSE D. ITA NO.172/ALLD/2011 FOR A.Y. 2009-10 IN THE CASE O F SHRI PRADEEP BARANWAL :- 50. THE GROUNDS OF APPEALS RAISED BY THE REVENUE IN THE ABOVE APPEAL ARE AS UNDER :- 1. THE LD. CIT(A) WAS NOT JUSTIFIED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.1,50,00,000/- MADE U/S 69 OF THE ACT, WITHOUT APPRECIATING THE FACT THAT THE ADDITION WAS MADE ON THE BASIS OF SEIZED DOCUMENTS FOUND AT THE TIME OF SEARCH, AS PER WHIC H AN AMOUNT OF RS.1,50,00,000/- WAS FOUND TO BE UNEXPLAINED MONEY OUT OF MONEY RECEIVED BY THE ASSESSEE ON FAMILY SETTLEMENT. 2. THE LD. CIT(A) WAS NOT JUSTIFIED IN LAW AND ON F ACTS IN DELETING THE ADDITION OF RS.1,50,00,000/-, WITHOUT APPRECIAT ING THE FACT THAT THE A.O. HAS ALREADY ALLOWED SET OF OF RS.84,00,000/- T HE AMOUNT SURRENDERED BY THE ASSESSEE FROM UNDISCLOSED INCOME FROM HIS RETURN. 3. THE LD. CIT(A) WAS NOT JUSTIFIED IN LAW AND ON F ACTS IN DELETING THE ADDITION OF RS.10,00,00,000/- MADE BY THE A.O. ON ACCOUNT OF UNEXPLAINED GIFT RECEIVED DURING THE YEAR, EVIDENCE D BY NOTING AND JOTTING ON THE DIARIES SEIZED DURING THE COURSE OF SEARCH, WITHOUT APPRECIATING THE FACT THAT NOTING AND JOTTINGS ON T HE DIARIES SEIZED DURING THE COURSE OF SEARCH ITSELF CONSTITUTED A DI RECT AND INDEPENDENT EVIDENCE FOR PRESUMPTION BY THE A.O. THAT THE MONE Y REPRESENTED UNACCOUNTED MONEY RECEIVED ON FAMILY SETTLEMENT, AN D TREATING THE GIFT AS NON-GENUINE. 4. THE LD. CIT(A) WAS NOT JUSTIFIED IN LAW AND ON F ACTS IN DELETING THE ADDITION OF RS.10,00,00,000/-, WITHOUT APPRECIA TING THE FACT THAT NOTING AND JOTTING RECORDED IN THE DIARIES SEIZED W ERE NOT DOCUMENT, ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 43 INSTEAD OF AS SUFFICIENT EVIDENTIARY VALUE, UNLESS PROVED BY THE ASSESSEE OTHERWISE, WHICH IN THIS CASE THE ASSESSEE COULD NOT PROVE. 5. THE LD. CIT(A) WAS NOT JUSTIFIED IN LAW AND ON F ACTS IN DELETING THE ADDITION OF RS.34,58,000/- ON ACCOUNT OF UNACCO UNTED CASH PAYMENT FOR PURCHASE OF PROPERTY AT GURGAON, WITHOU T APPRECIATING THE FACT THAT NOTINGS IN THE SEIZED DOCUMENT REPRES ENTED THE UNACCOUNTED CASH PAYMENT MADE TO THE SELLER OF THE PROPERTY, OVER AND ABOVE THE AMOUNT MENTIONED IN THE SALE DEED. 6. THE LD. CIT(A) WAS NOT JUSTIFIED IN LAW AND ON F ACTS IN DELEING THE ADDITION OF RS.34,58,000/-, WITHOUT APPRECIATIN G THE FACT THAT NOTING AND JOTTING IN THE SEIZED DIARY FOUND AT THE TIME OF SEARCH ITSELF, BEAR SUFFICIENT INDEPENDENT AND DIRECT EVIDENCE FOR RISING AT THE CONCLUSION BY THE A.O. THAT UNACCOUNTED CASH PAYMEN TS HAVE BEEN MADE TOWARDS PURCHASE OF PROPERTY. 7. THE LD. CIT(A) WAS NOT JUSTIFIED IN LAW AND ON F ACTS IN DELETING THE ADDITION OF RS.2,41,305/- MADE ON ACCOUNT OF RE NTAL INCOME, WITHOUT APPRECIATING THE FACT THAT THE PERIOD DURIN G WHICH THE PROPERTY WAS LET OUT WAS 10 MONTHS INSTEAD OF THE P ERIOD OF 7 MONTHS, AND HAD ADDED THE DIFFERENCE IN THE RENTAL INCOME D ECLARED BY THE ASSESSEE AS RENTAL INCOME. 8. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN IGNORING THE PROVISIONS OF SECTION 292C OF THE ACT, ACCORDIN G TO WHICH THE DOCUMENTS, BOOKS OF ACCOUNT, MONEY, BULLION, JEWELL ERY AND OTHER VALUABLE ARTICLES OR THING ARE FOUND DURING THE COU RSE OF SEARCH WILL BE PRESUMED TO BE BELONGING TO SUCH PERSONS AND THA T THE CONTENTS OF SUCH BOOKS OF ACCOUNT ARE TRUE. ACCORDINGLY AS PER THE PROVISIONS OF LAW, IT WAS FOR THE ASSESSEE TO REBUT THE EVIDENCE FOUND DURING THE COURSE OF SEARCH AND NOT FOR THE A.O. TO PROVE THAT THESE DOCUMENTS WERE TRUE AND BELONGS TO THE ASSESSEE. 9. THAT THE ORDER OF THE LD. CIT(A) DESERVES TO BE VACATED AND THE ASSESSMENT ORDER PASSED BY THE AO BE RESTORED. 10. THAT THE APPELLANT CRAVES LEAVE TO AMEND ANY ON E OR MORE OF THE GROUNDS OF THE APPEAL AS STATED ABOVE AS AND WH EN NEED FOR DOING SO MAY ARISE. ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 44 51. GROUND NOS.1 & 2 ARE IN RESPECT OF ADDITION OF RS.1,50,00,000/-. D URING THE ASSESSMENT PROCEEDINGS THE A.O. NOTICED THAT AT THE TIME OF SEARCH PROCEEDINGS CASH AMOUNTING TO RS.2,63,47,900/- WAS FOUND. FURT HER AS PER ANNEXURE-A, SL. NO.A2 OF PANCHANAMA DATED 11.02.2009 ONE CRYSTAL SP IRAL NOTE BOOK WAS SEIZED. DETAILS OF MODE OF FAMILY SETTLEMENT AMONG MEMBERS HAVE BEEN MENTIONED ON VARIOUS PAGES OF THIS ANNEXURE. ON PAGE NO.4 & 3 V ARIOUS TRANSACTIONS AMONG THE SISTER CONCERNS OF THE ASSESSEE GROUP AND AMONG THE FAMILY MEMBERS OF GROUP HAVE ALSO BEEN MENTIONED. ON PERUSAL OF DOCUMENTS, IT W AS FOUND BY THE A.O. THAT RS.1,55,00,000/- HAS BEEN RECEIVED BY THE ASSESSEE AS FAMILY SETTLEMENT. THE A.O. HAS EXAMINED THE SURRENDER MADE IN THE GROUP AND SE TTLEMENT GIVEN BY SHRI YOGESH PRASAD BARANWAL, FATHER OF SHRI PRADEEP BARA NWAL. THE A.O. NOTICED FROM THE SETTLEMENT OF SHRI YOGESH PRASAD BARANWAL THAT THE AMOUNT OF RS.2,34,00,000/- WAS ADMITTED TO BE FOUND FROM THE ROOM OF SHRI PRAD EEP BARANWAL AND IT WAS ADMITTED AS IT IS. THE A.O. FOUND THAT IT IS INCOM E FROM UNDISCLOSED SOURCE IN THE HANDS OF NONE OTHER THAN SHRI PRADEEP KUMAR BARANWA L I.E. THE ASSESSEE HIMSELF AND NOT IN THE HANDS OF OTHER PERSONS. THE A.O. DI D NOT ACCEPT THE ASSESSEES CONTENTION THAT RS.1,55,00,000/- WAS NOT A CASH TRA NSACTION BUT IT FORMED PART OF RS.2,34,00,000/- AS FOUND FROM THE ROOM. THE A.O. DID NOT ACCEPT THE ASSESSEES CONTENTION ON THE REASONING THAT THE ASSESSEE HIMSE LF VIDE HIS STATEMENT DATED 02.04.2009 RECORDED UNDER SECTION 132(4) HAS STATED THAT THE SAID AMOUNT OF RS.1,55,00,000/- WAS SURRENDERED ON THE BASIS OF SE IZED LOOSE SHEETS AND BOOKS OF ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 45 ACCOUNT IN ADDITION TO AMOUNT SURRENDERED EARLIER A S PART OF STATEMENT OF SHRI YOGESH PRASAD BARANWAL. THE A.O. CALCULATED THE AM OUNT OF ADDITION OF RS.1,50,00,000/- AFTER REDUCING RS.84,00,000/- CASH FOUND FROM RS.2,34,00,000/- (RS.2,34,00,000 RS.84,00,000) I.E. THE DIFFERENCE BETWEEN CASH FOUND FROM HIS ROOM AND AMOUNT ADMITTED AS SURRENDERED CASH IN HIS RETURN TREATING IT AS UNEXPLAINED MONEY UNDER SECTION 69A OF THE ACT. 52. THE CIT(A) DELETED THE SAID ADDITION AS UNDER : - (PARAGRAPH NO.7, PAGE NO.11) 7. THE FIRST ISSUE WHICH RELATES TO THE ADDITION O F RS.1,50,00,000/- AS UNEXPLAINED MONEY U/S 69A. FROM THE ASSESSMENT ORD ER, IT TRANSPIRES THAT THE ADDITION RESTS WITH A CRYSTAL SPIRAL NOTE BOOK AS PER ANNEXURE A, S.NO.A2 OF PANCHANAMA DATED 11.02.2009. THE ASSESS ING OFFICER HAS STATED THAT DETAILS OF MODE OF FAMILY SETTLEMENT A MONG MEMBERS HAVE BEEN MENTIONED ON VARIOUS PAGES OF THIS ANNEXURE. ON PAGE NO.4 AND 3 VARIOUS TRANSACTIONS AMONG THE SISTER CONCERNS OF T HE ASSESSEE GROUP AND AMONG THE FAMILY MEMBERS OF GROUP HAVE ALSO BEEN ME NTIONED. ON PERUSAL OF THESE PAGES, IT IS FOUND THAT RS.1,55,00 ,000/- HAVE BEEN RECEIVED BY THE ASSESSEE AS FAMILY SETTLEMENT PAGE NO.1 OF THE ANNEXURE HAS BEEN SCANNED BY THE ASSESSING OFFICER IN PARA N O.4 OF ASSESSMENT ORDER. THE TRANSACTION OF THIS PAGE HAS BEEN EXPLA INED BY THE ASSESSEE AS UNDER :- PARTICULARS AMOUNT (RS.) EXPLANATION OFFERED CARPET INTERNATIONAL (P) LTD. 10,69,69,000/- IT WAS SALE PROCEEDS AGAINST GOODS SOLD TO M/S. CARPET INTERNATIONAL. RAJAT BARANWAL 4,39,90,000/- IT WAS REFUND OF CREDI T BALANCE OF RAJAT BARANWAL CAPITAL A/C IN THE FIRM M/S. ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 46 CARPET INTERNATIONAL SUMAN BARANWAL 1,37,70,000/- IT WAS REFUND OF CREDI T BALANCE OF SUMAN BARANWAL IN THE FIRM CARPET INTERNATIONAL CASH 1,55,00,000/- IT WAS A CASH WHICH THE APPELLANT SURRENDERED U/S 132(4) TO PURCHASE PEACE. NITIN BARANWAL 2,22,40,000/- IT WAS REFUND OF CREDI T BALANCE IN THE CAPITAL A/C OF NITIN BARANWAL IN THE FIRM CARPET INTERNATIONAL. 31,000/- NOT RECEIVED BY THE APPELLANT OR ANY FAMILY MEMBERS. HOWEVER, WHILE MAKING ADDITION OF RS.1,50,00,000/- THE ASSESSING OFFICER HAS CONCLUDED THAT OUT OF CASH FOUND DURING SEARCH AT RS.2,34,00,000/- THE ASSESSEES SURRENDERED CASH WA S RS.84,00,000/- ONLY AND HENCE THE DIFFERENCE OF RS.1,50,00,000/- W AS EXCESS CASH WHICH WAS NOT SURRENDERED BY THE ASSESSEE AND HENCE HE ADDED IT AS UNEXPLAINED MONEY U/S 69A. I HAVE GONE THROUGH ASSESSEES WRITTEN SUBMISSION A ND ARGUMENT OF THE ASSESSEES COUNSEL AND FIND THAT DURING SEARCH THERE WAS A TOTAL RECOVERY OF RS.2,34,00,000/-. HOWEVER, ONLY RS.2,0 0,00,000/- WAS SEIZED. THE SUM OF RS.2,00,00,000/- WAS SURRENDERE D BY THE ASSESSEE AND HIS FAMILY MEMBERS AS UNDER :- (1) PRADEEP BARANWAL RS.84,00,000/- (2) SUMAN BARANWAL RS.28,00,000/- (3) NITIN BARANWAL RS.48,00,000/- (4) RAJAT BARANWAL RS.40,00,000/- BEFORE ME IT HAS BEEN ARGUED BY THE ASSESSEES COUN CIL THAT OUT OF TOTAL RECOVERY OF RS.2,34,00,000/- A SUM OF RS.34,0 0,000/- WAS EXPLAINED AT THE TIME OF SEARCH AND WAS DULY SHOWN IN THE FINANCIAL STATEMENTS OF THE ASSESSEE AND HIS FAMILY MEMBERS A ND HENCE THE SAME WAS NOT SEIZED. ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 47 HOWEVER, A SUM OF RS.1,55,00,000/- AS REFLECTED ON PAGE NO.1 OF ANNEXURE SCANNED IN THE ASSESSMENT ORDER COULD NOT BE EXPLAINED WITH EVIDENCES BY THE ASSESSEE DURING POST SEARCH ENQUIR IES AND TO PURCHASE PEACE, SURRENDERED IT U/S 132(4) ON 02.04. 2009. I HAVE CONSIDERED THE RIVAL CONTENTIONS AND COME TO THE CONCLUSION THAT THE SURRENDER OF RS.1,55,00,000/- IS TO JUSTIF Y A TRANSACTION FOUND ON A SEIZED MATERIAL. I FIND THAT UNEXPLAINED CASH OUT OF RECOVERY OF CASH WAS RS.2,00,00,000/- WHICH WAS SURRENDERED BY THE ASSESSEE AND HIS FAMILY MEMBERS AT THE TIME OF SEARCH ON 11.02.2 009 AND UNEXPLAINED CASH OF RS.1,55,00,000/- FOUND IN AN EN TRY OF THE SEIZED MATERIAL WHICH WAS SURRENDERED ON 02.04.2009, THE T OTAL OF RS.3,55,00,000/. IT IS NOT CLEAR FROM THE ASSESSME NT ORDER FROM WHERE RS.1,50,00,000/- HAS COME WHICH HAS BEEN ASSESSED A S UNEXPLAINED MONEY U/S. 69A WHICH WAS NEITHER FOUND NOR ON ANY S EIZED MATERIAL. SINCE PHYSICAL UNEXPLAINED CASH FOUND DURING SEARCH WAS RS.2,00,00,000/- WHICH WAS ALREADY SURRENDERED BY T HE ASSESSEE AND HIS FAMILY MEMBERS, THE ASSESSING OFFICERS ACTION TO TREAT THE SUM OF RS.1,50,00,000/- AS PHYSICAL CASH IS WRONG AND DESE RVES DELETION. ACCORDINGLY THE ADDITION IS DELETED. 53. THE LD. DEPARTMENTAL REPRESENTATIVE RELIED UPON THE ORDER OF A.O. AND SUBMITTED THAT THE A.O. HAS MADE ADDITION ON THE BA SIS OF MATERIAL AND DOCUMENTS FOUND AT THE TIME OF SEARCH. 54. THE LD. AUTHORISED REPRESENTATIVE, ON THE OTHER HAND, RELIED UPON THE ORDER OF CIT(A) AND SUBMITTED THAT THE ASSESSEES RESIDEN CE IS COMMON OF ALL FAMILY MEMBERS AND THE TOTAL CASH RECOVERED FROM THE RESID ENCE AS STATED ON OATH UNDER SECTION 132(4) WERE BELONGING TO THE FAMILY MEMBERS . THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT THE ASSESSEE HAS SURR ENDERED CASH OF ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 48 RS.2,00,00,000/- OUT OF TOTAL RECOVERY OF RS.2,34,0 0,000/- ON 11.02.2009 AND RS.1,55,00,000/- ON 02.04.2009 BOTH UNDER SECTION 1 32(4) OF THE ACT. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT THE A.O. H AS WRONGLY CONSIDERED ONLY RS.84,00,000/- IN CASE OF ASSESSEE OUT OF TOTAL CAS H OF RS.2,34,00,000/- RECOVERED EARLIER AS ADDITIONAL CASH OF RS.1,55,00,000/- SURR ENDERED UNDER SECTION 132(4) HAS NOT BEEN CONSIDERED BY THE A.O. FOR MAKING THE ADDI TION OF RS.1,55,00,000/-. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT IT WAS EXPLAINED TO THE A.O. THAT SURRENDER AMOUNT OF RS.1,55,00,000/- DOES NOT REPRE SENT ANY PHYSICAL CASH BUT THEY ARE MERELY TRANSACTIONS OBSERVED BY THE SEARCH PART Y ON THE SEIZED MATERIAL AND THE ASSESSEE WAS NOT ABLE TO SUBSTANTIATE IT WITH ANY D OCUMENTARY EVIDENCE AND AS SUCH SURRENDER WAS MADE TO PURCHASE PEACE. THE LD. AUTH ORISED REPRESENTATIVE DREW OUR ATTENTION TO ASSESSEES EXPLANATION WHICH HAS B EEN NOTED BY THE CIT(A) AT PAGE NO.5 OF HIS ORDER AS UNDER :- ASSESSEES RESIDENCE IS COMMON OF ALL THE FAMILY ME MBERS AND THE TOTAL CASH RECOVERED FROM THE RESIDENCE AS STATED O N OATH U/S 132(4) WERE BELONGED TO THE FOLLOWING MEMBERS: NAME OF FAMILY MEMBER CASH ENTRY OF CASH WHICH WAS SURRENDERED CASH PRADEEP BARANWAL 84,00,000/- 1,55,00,000/- 2,39,00, 000/- SUMAN BARANWAL 28,00,000/- 28,00,000/- NITIN BARANWAL 48,00,000/- 48,00,000/- RAJAT BARANWAL 40,00,000/- 40,00,000/- TOTAL 2,00,00,000/- 1,55,00,000/- 3,55,00,000/- ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 49 55. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THA T THE AMOUNT OF RS.1,55,00,000/- BEING ADDITION MADE BY THE A.O. HA S BEEN SUBJECTED FOR DOUBLE TAXATION AS THE ASSESSEE HIMSELF HAS SURRENDERED RS .2,39,00,000/- (RS.84,00,000 + RS.1,55,00,000) AND RS.1,16,00,000/- SURRENDERED BY THE FAMILY MEMBERS. THUS, THE TOTAL SURRENDER WAS RS.3,55,00,000/-. 56. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PA RTIES AND RECORDS PERUSED. WE NOTICE THAT THE A.O. HAS MADE THE ADDITION WITHO UT APPRECIATING THE ASSESSEES EXPLANATION THAT RS.1,55,00,000/- HAS ALREADY BEEN CONSIDERED IN THE SURRENDERED AMOUNT MADE BY THE ASSESSEE AT THE TIME OF SEARCH A ND POST SEARCH PERIOD. THE CIT(A) APPRECIATED THE FACTS AND FOUND THAT THE SAI D ADDITION AMOUNTS TO DOUBLE ADDITION OF THE SAME INCOME. THE ASSESSEE HAS FURN ISHED THE RELEVANT RECONCILIATION WHICH HAS BEEN REPRODUCED BY THE CIT (A) AND THE SAME IS REPRODUCED ABOVE. SINCE THE REVENUE DID NOT POINT OUT ANY CONTRARY MATERIAL TO THE SAID RECONCILIATION AND FINDING OF THE CIT(A) A ND IN THE LIGHT OF THE FACTS AND DETAILED DISCUSSIONS MADE ABOVE, WE CONFIRM THE ORD ER OF CIT(A) ON THE ISSUE. 57. GROUND NOS.3 & 4 ARE IN RESPECT OF ADDITION OF RS.10,00,00,000/- O N ACCOUNT OF GIFT. THE A.O. MADE THE ADDITION OF RS. 10,00,00,000/- ON ACCOUNT OF GIFT RECEIVED BY THE ASSESSEE FROM THE FOLLOWING RE LATIVES :- (PAGE NO.6 OF CIT(A)) ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 50 S.NO. NAME OF RELATION RELATION MODE OF PAYMENT AMOUNT (RS.) 1 PRAMOD KUMAR BARANWAL REAL BROTHER CHEQUE NO.557917 DATED 12.05.08 5,00,00,000 2 SMT. RADHIKA DEVI BARANWAL SPOUSE OF REAL BROTHER CHEQUE NO.557868 DATED 12.05.08 5,00,00,000 TOTAL 10,00,00,000 58. THE A.O. MADE THE ABOVE ADDITION ON THE BASIS O F SOME NOTING AND JOTTING IN THE DIARY SEIZED DURING THE SEARCH OPERATION. THE CIT(A) DELETED THE ADDITION AS UNDER :- (PAGE NOS.13 TO 15) I HAVE GONE THROUGH THE RIVAL CONTENTIONS AND FIND THAT THE ASSESSING OFFICERS FINDING RESTS WITH THE SEIZED M ATERIALS LAYING EMPHASIS THAT THE SAID GIFT IS NOT A GIFT BUT IS IN CONSIDERATION OF FAMILY PARTITION. HE HAS DEALT WITH THE GENUINENESS OF TH E GIFT AS PER THE STATUTE BEFORE THE INSERTION OF SECTION 56(2) EFFEC TIVE FROM 01.04.2005. IT IS KNOWN FACT THAT AFTER THE ABOLITION OF GIFT T AX ACT, THERE WAS A INFLUX OF TRANSACTION OF GIFTED MONEY FOR SELF INTE REST WITHOUT ANY LOVE AND AFFECTIONS AND WITHOUT ANY OCCASION FOR THE GIF T BETWEEN THE INDIVIDUALS. THE LEGISLATURE, THEREFORE MADE A NEW PROVISION OF SECTION 56(2) TAXING ALL TYPE OF GIFTS EXCEPT WHICH ARE GIVEN BY RELATIVES OR GIVEN ON THE OCCASION OF MARRIAGE OF T HE INDIVIDUALS AND IN SOME OTHER CONDITIONS DESCRIBED IN CLAUSE (V) OF SUB SECTION 2 OF SECTION 56 WHICH NEED NOT TO MENTION HERE. THE REL ATIONSHIP DESCRIBED IN EXPLANATION TO THAT SECTION IS ENOUGH. THERE IS NO LEGAL OBLIGATION TO PROVE LOVE AND AFFECTION. HOWEVER, T HE PRIMARY CONDITION IS THAT THE GIFTS SHOULD BE WITHOUT CONSI DERATION. THE ASSESSING OFFICER HAS HELD THE GIFT AS NON GENUINE BECAUSE OF ABSENCE OF LOVE AND AFFECTION DUE TO FAMILY PARTITION AND A LSO HAS HELD THAT THEY ARE IN CONSIDERATION OF RECESSION OF THE DONEE S INTEREST IN THE CONCERN EXCLUSIVELY OWNED BY THE ASSESSEE AFTER FAM ILY PARTITION WITHOUT ANY COGENT EVIDENCE AND WITHOUT ESTABLISHIN G THE EXTENT OF CONSIDERATION THEREOF. THE ASSESSING OFFICER HAS N OT CONSIDERED ASSESSEES SUBMISSION DATED 08.12.2010, WHEREIN HE SUBMITTED EVEN ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 51 THE FAMILY ARRANGEMENTS ARE OUT OF PURVIEW AND AMBI T OF WHOLE SCHEME OF CAPITAL GAINS OR ANY OTHER HEAD OF INCOME . IN CASE OF COMPENSATION TO THE LOSS SUFFERED BY THE PARTY DUE TO RECESSION OF INTEREST IN CONCERN WILL ALSO NOT BE TAXABLE. RELI ANCE IS PLACED ON THE FOLLOWING CASE LAWS :- (1) CIT VS. A L RAMANATHAN (MAD) 245 ITR 348. (2) CIT VS. KAYARR ENTERPRISES & OTHERS (MAD) 299 I TR 348. (3) MRS. P. SHELLA VS. ITO (ITAT BANGALORE) (2009) 120 ITR 159. (4) SMT. SONU AGRAWAL VS. INCOME TAX OFFICER (2009) 29 SOT 478 (LUCKNOW). I FIND THAT THERE IS A FORCE IN THE ARGUMENT PUT FO RTH BY THE ASSESSEES COUNSEL. THE ASSESSING OFFICER HAS NOT CHALLENGED THE INGRED IENTS OF SECTION 68 OF INCOME TAX ACT. A PERUSAL OF THE ASSESSMENT ORD ER REVEALS THAT THE A.O. WAS NOT VERY MUCH CLEAR IN HIS FINDING WHETHER HE IS TREATING THIS GIFT AS UNEXPLAINED DUE TO NON-ESTABLISHMENT OF ING REDIENTS OF SECTION 68 OR AS NON-GENUINE GIFT DUE TO ABSENCE OF LOVE AN D AFFECTION BETWEEN THE DONOR AND DONEE. THE A.O. HAS NOT MENTIONED TH AT UNDER WHAT PROVISIONS OF I.T. ACT, 1961 HE HAS ADDED THE AMOUN T OF GIFT WHEN THE ASSESSEE HAS ESTABLISHED THE INGREDIENTS OF SECTION 68 AND SINCE THE DONOR IS A REAL BROTHER WHICH IS BEYOND DOUBT COMES UNDER THE DEFINITION OF RELATIVES AS PER EXPLANATION OF CLAUS E (A) OF SECTION 56(2)(IV) OF THE INCOME TAX ACT, THE ASSESSEE IS NO T SUPPOSED TO ESTABLISH LOVE AND AFFECTION AFTER INSERTION OF THE SECTION OF INCOME TAX ACT. THE GIFTS DEEDS SEIZED WERE ALREADY IN TH E POSSESSION OF THE ASSESSING OFFICER. AS SUCH IT CANNOT BE SAID TO BE FABRICATED AND AFTER THOUGHT. THE ASSESSEE WAS NOT ALLOWED CROSS EXAMINATION OF T HE DONOR SHRI PRAMOD KUMAR BARANWAL AND SMT. RADHIKA BARANWAL IN SPITE OF ASSESSEES REQUEST WHICH IS AGAINST NATURAL JUSTICE . SEVERAL JUDICIAL PRONOUNCEMENTS ARE AVAILABLE ON THIS ISSUE LIKE. I) EMC WORKS PVT. LTD. VS. ITO (1963) 49 ITR 650 (A LLD) II) MEMHOOB SINGH SUBHAS CHAND ARHATI VS. CST (1988 ) 69 STC 229, 230 (ALLD) ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 52 III) RADHEY SHYAM JAGDISH PD. (1979) 117 ITR 166 (ALLD) IN THE LIGHT OF TOTALITY OF THE CASE, I AM OF THE V IEW THAT THE VALIDITY AND GENUINENESS OF THE SAID GIFT CANNOT BE DISPROVED. ACCORDINGLY THE ADDITION OF RS.10,00,00,000/- IS HEREBY DELETED. 59. THE LD. DEPARTMENTAL REPRESENTATIVE RELIED UPON THE ORDER OF A.O. 60. THE LD. AUTHORISED REPRESENTATIVE, ON THE OTHER HAND, RELIED UPON THE ORDER OF CIT(A) AND SUBMITTED THAT IT HAS COME TO THE NOT ICE OF THE A.O. FROM THE MATERIAL FOUND AT THE TIME OF SEARCH THAT SHRI PRAM OD BARANWAL AND SMT. RADHIKA BARANWAL HAVE GIVEN GIFTS OF RS.5,00,00,000/- EACH ON 12.05.2008 AN 10.05.2008. THE LD. AUTHORISED REPRESENTATIVE FURTHER SUBMITTED THAT THE RELEVANT DOCUMENTS AND GIFT DEEDS FOUND AT THE TIME OF SEARCH ITSELF E STABLISH THAT THE ASSESSEE HAS RECEIVED GENUINE GIFTS. HE FURTHER SUBMITTED THAT THE GIFT RECEIVED WAS EXEMPT UNDER SECTION 56(2) OF THE ACT. 61. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THA T THE A.O. DID NOT DOUBT ABOUT THE IDENTITY AND CREDITWORTHINESS OF THE DONO R. THE A.O., SIMPLY ON THE BASIS OF PRESUMPTION THAT THE GIFTS WERE NOT GENUINE, MAD E THE ADDITION. 62. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PA RTIES AND RECORDS PERUSED. WE NOTICED THAT CERTAIN DOCUMENTS WERE FOUND AT THE TIME OF SEARCH WHICH SHOWED ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 53 THAT THE ASSESSEE RECEIVED GIFT OF RS.10,00,00,000/ - FROM TWO RELATIVES NAMELY SHRI PRAMOD BARANWAL AND SMT. RADHIKA BARANWAL. IT IS N OT THE CASE OF THE A.O. THAT THE SAID AMOUNT OF GIFT OF RS.10,00,00,000/- HAS BE EN AN UNACCOUNTED INCOME OF THE ASSESSEE WHICH HAVE BEEN INVESTED IN UNACCOUNTE D ASSETS. MERELY ON THE BASIS OF PRESUMPTIONS THE A.O. HELD THAT THE GIFTS WERE N OT GENUINE JUST TO DENY THE BENEFIT OF PROVISO OF CLAUSE (VI) OF SECTION 56(2) OF THE ACT WHERE GIFTS FROM SPECIFIED RELATIVES ARE EXEMPT GIFT, THE VIEW OF TH E A.O. IS NOT IN ACCORDANCE WITH LAW. THE A.O. REFERRED CERTAIN DOCUMENTS AND PAPER S FOUND AT THE TIME OF SEARCH WHICH ARE RELATED TO GIFT AND FAMILY SETTLEMENT. I T IS TO BE NOTED THAT INSTEAD OF PRESUMING THAT THE GIFTS WERE NON-GENUINE THE RELEV ANT PRESUMPTION MAY BE THAT THESE WERE GENUINE GIFTS AS FAMILY SETTLEMENT WERE GOING ON IN THE FAMILY OF THE ASSESSEE. IN CASE OF FAMILY SETTLEMENT, SUCH GIFTS ARE BOUND TO BE THERE AND ONE SHOULD APPRECIATE SUCH GIFT SO THAT THE GENUINE ASS ESSEE MAY RECORD THE TRANSACTION IN THE BOOKS OF ACCOUNT AND SHOULD NOT COMPEL THEM TO DO SUCH FAMILY SETTLEMENT TRANSACTION OUT OF BOOKS OF ACCOUNT. ONE OF THE CR UCIAL FACTS NOTED BY THE CIT(A) IN HIS ORDER IS THAT THE GIFT DEEDS SEIZED WERE ALR EADY IN THE POSSESSION OF THE A.O., THEREFORE, SUCH GIFT DEEDS CANNOT SAID TO BE A FABR ICATED ONE AFTER THOUGHT. THE SCHEME OF THE ACT IN CASE OF SEARCH ASSESSMENT IS T HAT SEARCH ASSESSMENT IS TO BE MADE ON THE BASIS OF MATERIAL AND DOCUMENTS FOUND A T THE TIME OF SEARCH. WHEN IN SEARCH, GIFT DEEDS ARE FOUND, A PRESUMPTION THAT TH ERE WAS GENUINE GIFT UNLESS OTHERWISE PROVED BY THE REVENUE. WE NOTICE THAT TH E A.O. FAILED TO POINT OUT ANY ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 54 EVIDENCE, MATERIAL OR THINGS BASED ON WHICH IT CAN BE SAID THAT THE GIFT WAS NON- GENUINE. UNDER THE CIRCUMSTANCES, THE REVENUE FAIL ED TO DISCHARGE THE ONUS IN THIS REGARD AS HELD BY THE APEX COURT IN THE CASE OF COM MISSIONER OF INCOME-TAX VS. DAULAT RAM RAWATMULL [1973] 87 ITR 349 (SC) THE COURT HELD AS UNDER:- THE ONUS TO PROVE THAT THE APPARENT IS NOT THE REA L IS ON THE PARTY WHO CLAIMS IT TO BE SO. AS IT WAS THE DEPARTM ENT WHICH CLAIMED THAT THE AMOUNT OF FIXED DEPOSIT RECEIPT BELONGED T O THE RESPONDENT FIRM EVEN THOUGH THE RECEIPT HAD BEEN ISSUED IN TH E NAME OF B, THE BURDEN LAID ON THE DEPARTMENT TO PROVE THAT THE RES PONDENT WAS THE OWNER OF THE AMOUNT DESPITE THE FACT THAT THE RECEI PT WAS IN THE NAME OF B. A SIMPLE WAY OF DISCHARGING THE ONUS AND RESO LVING THE CONTROVERSY WAS TO TRACE THE SOURCE AND ORIGIN OF T HE AMOUNT AND FIND OUT ITS ULTIMATE DESTINATION. SO FAR AS THE SOURCE WAS CONCERNED, THERE WAS NO MATERIAL ON THE RECORD TO SHOW THAT THE AMOU NT CAME FROM THE COFFERS OF THE RESPONDENT-FIRM OR THAT IT WAS TENDE RED IN B CALCUTTA BRANCH OF THE CENTRAL BANK, ON BEHALF OF THE RESPON DENT. AS REGARDS THE DESTINATION OF THE AMOUNT, THERE WAS NOTHING TO SHOW THAT IT WENT TO THE COFFERS OF THE RESPONDENT. ON THE CONTRARY, THERE WAS POSITIVE EVIDENCE THAT THE AMOUNT WAS RECEIVED BY B. IT WOUL D THUS FOLLOW THAT BOTH AS REGARDS THE SOURCE AS WELL AS THE DESTINATI ON OF THE AMOUNT, THE MATERIAL ON THE RECORD GAVE NO SUPPORT TO THE C LAIM OF THE DEPARTMENT 63. IN THE CASE UNDER CONSIDERATION, AS STATED ABOV E AND AS FINDING GIVEN BY THE CIT (A) THAT THE REVENUE HAS FAILED POINT OUT ANY M ATERIAL THAT THESE GIFTS WERE NOT GENUINE. FURTHER, EVEN AT THE TIME OF SEARCH ALSO NO MATERIAL WAS FOUND TO JUSTIFY THAT THESE GIFTS WERE NON GENUINE, RATHER GIFTS DEE DS AND OTHER MATERIALS WERE FOUND WHICH SUPPORTS THAT THE ASSESSEE RECEIVED THE GIFTS . IN THE LIGHT OF ABOVE DISCUSSION, DETAILED DISCUSSIONS MADE IN PARAGRAPH NO.13 & 14 OF THIS ORDER AND THE PECULIAR FACTS OF THE CASE, ORDER OF THE CIT(A) IS CONFIRMED ON THE ISSUE. ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 55 64. GROUND NOS.5 & 6 ARE IN RESPECT OF ADDITION OF RS.34,58,0000/-. TH E ASSESSEE IS A CO-OWNER OF THE GURGAON PROPERTY WITH SHRI NITIN BARANWAL. THE CASE OF SHRI NITIN BARANWAL, ITA NO.178/ALLD/2011 H AS BEEN DECIDE ABOVE IN PARAGRAPH NO.28 OF THIS ORDER. FOLLOWING THE SAID DISCUSSIONS, WE CONFIRM THE ORDER OF CIT(A) ON THE ISSUE. 65. GROUND NO.7 IS ON ACCOUNT OF RENTAL INCOME OF RS.2,14,305/- (I N THE GROUND OF APPEAL THE FIGURE IS NOTED AS RS.2,41,305/- WHER E AS THE CORRECT FIGURE IS RS.2,14,305/-). THIS GROUND IS IDENTICAL TO GROUND NO.5 IN THE CASE OF SHRI NITIN BARANWAL, ITA NO.178/ALLD/2011 THAT THE ASSESSEE HA S ALREADY SHOWN THE RENTAL INCOME OF THESE PROPERTIES. FOLLOWING THE SAID DIS CUSSIONS MADE IN PARAGRAPH NO.31 OF THIS ORDER, WE CONFIRM THE ORDER OF CIT(A) ON THE ISSUE. 66. GROUND NO.8 PERTAINS TO SECTION 292C OF THE ACT WHICH IS SIMIL AR TO GROUND NO.6 IN THE CASE OF SHRI PRADEEP BARANWAL, ITA NO.1 77/ALLD/2011. FOLLOWING THE DISCUSSIONS MADE IN PARAGRAPH NO.29(1), WE CONFIRM THE ORDER OF CIT(A) ON THE ISSUE. 67. GROUND NOS.9 & 10 ARE GENERAL IN NATURE, REQUIRE NO INDEPENDENT FIND ING. 68. IN THE RESULT, ITA NO.172/ALLD/2011 IS DISMISSE D. ITA NOS.177, 172, 178, 179 & 176/ALLD/2011 AYS. 2008-09 & 2009-10 56 69. IN THE RESULT, ALL THE APPEALS FILED BY THE REV ENUE ARE DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT) SD/- SD/- (BHAVNESH SAINI) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, ALLAHABAD BENCH, ALLAHABAD 6. GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE T RIBUNAL, ALLAHABAD TRUE COPY