ITO, New Delhi V. Mr. Rakesh Makkar, New Delhi

ITA 1779/DEL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 53501 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 05-12-2011
• Assessment Year: 1994-1995
• Appeal Filed On: 19-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUDESH GARGDR
• Assessee Lawyers: K C JAIN
• Keywords: Unexplained cash credit; Unexplained investment; Gift; Opportunity of being heard
• Section: 143(3); 131; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI F BENC H BEFORE SHRI U.B.S. BEDI, JM & SHRI A.N. PAHUJA, AM ITA NO.1779/D/2010 ASSESSMENT YEAR:1994-95 INCOME TAX OFFICER, WARD-47(1),ROOM NO. 425 MAYUR BHAWAN, CONNAUGHT PLACE, NEW DELHI V/S . MR. RAKESH MAKKAR, B-81, CC COLONY, OPP. RANA PRATAP BAGH, DELHI-110007 [PAN: AAQPM 0569A] (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI K.C. JAIN, AR REVENUE BY SHRI SUDESH GARG,DR DATE OF HEARING 05-12-2011 DATE OF PRONOUNCEMENT 30-12-2011 O R D E R A.N.PAHUJA:- THIS APPEAL FILED ON 17 TH JUNE, 2010 BY THE REVENUE AGAINST AN ORDER DATED 9 TH MARCH, 2010 OF THE LEARNED CIT(A)-XXX, NEW DELHI, RAISES THE FOLLOWING GROUNDS:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN:- 1. DELETING THE ADDITION OF ` `9.50 LAKH MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT DESPITE HIS OWN ADMISSION U/ S 132(4) OF THE INCOME-TAX ACT, 1961, MORE SO WHEN TH E ASSESSEE REFRAINED FROM COMPLYING TO THE REQUIREMEN TS OF SUBMITTING REQUISITE DETAILS AS PER THE HONBLE TRI BUNALS ORDERS. 2. DELETING THE ADDITION OF ` `5.10 LAKH MADE ON ACCOUNT OF UNEXPLAINED CREDIT ENTRIES IN HIS BANK ACCOUNT, MOR E SO WHEN THE DONORS ETC. BEHIND THE CREDIT ENTRIES WERE NEITHER PRODUCED NOR ANY VERIFICATION THEREOF WERE PLACED O N RECORD. THE APPELLANT CRAVES THE RIGHT TO ALTER, AMEND, ADD OR SUBSTITUTE THE GROUNDS OF APPEAL. I.T.A. NO.1779/D/2010 2 2. FACTS, IN BRIEF, AS PER RELEVANT ORDERS ARE THA T A SEARCH U/S 132(1) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED T O AS THE ACT) WAS CONDUCTED IN THE RESIDENTIAL AND BUSINESS PREMISES OF THE ASSESS EE AS ALSO IN LOCKER NO.786, PUNJAB NATIONAL BANK, RANA PRATAP BAGH, NEW DELHI O N 12 TH OCTOBER, 1993 AND 16 TH NOVEMBER, 1993 RESPECTIVELY. CONSEQUENT TO THE SE ARCH, A NOTICE U/S 148 OF THE ACT WAS SERVED UPON THE ASSESSEE BY THE ASSESSI NG OFFICER[AO IN SHORT]. SUBSEQUENTLY ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT VIDE ORDER DATED 31.03.1999, DETERMINING INCOME OF ` `42,70,439/-. 3. ON APPEAL, THE LEARNED CIT(A) VIDE HIS ORDER DA TED 30-10-2000 ALLOWED THE APPEAL PARTLY. ON FURTHER APPEAL BY TH E ASSESSEE AND THE REVENUE, THE ITAT VIDE THEIR ORDER DATED 31 ST AUGUST, 2005 SET ASIDE THE ISSUE OF ADDITIONS OF ` `9.55,000/- & ` `5,10,000/- IN THE FOLLOWING TERMS:- 22. WE HAVE CAREFULLY CONSIDERED THE ENTIRE MATER IAL ON RECORD AND THE RIVAL SUBMISSIONS. THE ASSESSING OF FICER HAS TAKEN THE FIGURE OF. ` `9,55,000/- AS UNEXPLAINED INVESTMENT IN THE PROPERTY, NAMELY, NAZAR SPORTS COMPLEX. THIS HAS B EEN DONE ON THE BASIS OF DISCLOSURE MADE BY THE ASSESSEE IN THE STATEMENT RECORDED U/S 132(4). IN ORDER TO WORK OUT THE UNDI SCLOSED INCOME HE HAS ALSO MADE REFERENCE TO PAGES 2 & 3 OF THE DI ARY SEIZED. THE DETAILS CONTAINED IN THE DIARY HAVE ALSO BEEN R EPRODUCED BY HIM ON PAGE 3 OF THE ASSESSMENT ORDER. 23. BEFORE THE LEARNED CIT(A), IT WAS EXPLAINED T HAT TOTAL INVESTMENT OF ` .`11,37,000/- MADE IN M/S NAZAR SPORTS COMPLEX WAS JOINT INVESTMENT MADE BY THE ASSESSEE AND OTHER DIRECTORS, NAMELY, GAJENDRA SINGH AND DAVENDRA SINGH. SO FAR AS THE SHARE OF THE ASSESSEE SHRI RAKESH MAKKAR IS CONCERNED, IT WAS POINTED OUT THAT ` .`6,10,000/- WAS INVESTED BY HIM IN THE FOLLOWING M ANNER:- CASH 100000/- 29.5.93 CHQ.NO. INDIAN BANK 876754 160000/- 2.8.93 CHQ.NO. INDIAN BANK 876755 175000/- 23.8.93 CHQ.NO. UNION BANK OF INDIA 179321 175000/- I.T.A. NO.1779/D/2010 3 24. THE LEARNED CIT(A) HAS DISCUSSED THIS ARGUMENT OF THE ASSESSEE AND ALSO THE ARGUMENT THAT THE AMOUNT OF ` 5,10,000 WAS PART OF THE TOTAL INVESTMENT OF ` .`9,55,000/-. HOWEVER, HE HAS NOT PROPERLY CONSIDERED THESE SUBMISSIONS WHILE UPHOLDI NG THE VIEW OF THE ASSESSING OFFICER. HE HAS PLACED RELIANCE ONLY ON THE STATEMENT OF THE ASSESSEE RECORDED DURING THE COURS E OF SEARCH. 25. THE ANCHOR OF THE ENTIRE MATTER IS PAGE NO.10 OF THE SEIZED DIARY, WHICH IS AVAILABLE ON PAGE 127 OF THE PAPER BOOK. THE CONTENTS OF THESE DOCUMENTS ARE AS UNDER:- LAND= 600 EXP.+ 315 1.5.93 1.5.93 BAL. 75 BAL. 175 JUNE EXP. 100 1.6.93 BAL. 25 JULY EXP. 100 2.6.93 BAL. 175 1.8.93 BAL. 75 1.8.93 BAL. 145 AUG. 16.8.93 BAL. 195 EXP. 70 16.8.93 BAL. 220 1.9.93 BAL. 150 26. IT HAS BEEN EXPLAINED THAT THE FIGURES ARE IN HUNDREDS AND 000 ARE TO BE ADDED TO MAKE THEM IN LACS. THE TO TAL AMOUNT WORKED OUT IN THIS MANNER FROM THIS PAGE IS 11.85 A ND IF 000 ARE ADDED IN PLACE OF HUNDRED THE AMOUNT IN LACS IS TAK EN THEN THE AMOUNT WILL BE ` 11,85,000/-. THE ARGUMENT OF THE LEARNED COUNSEL IS THAT THE FIGURE SHOWN AGAINST LAND AT 600 IS T O BE TAKEN AS ` 6,00,000 AFTER ADDING 000 BUT IT WAS NOT A CORREC T FIGURE AND IT WAS BROUGHT IN THE DIARY ONLY TO SHOW THIS FIGURE T O THE PROSPECTIVE DIRECTOR WHO WAS TO BE SUBSTITUTED IN PLACE OF THE OUTGOING DIRECTOR. THIS VERSION COULD NOT BE PROPERLY EXPLAINED. IN A NY CASE EVEN IF THE FIGURE OF ` ` 11,85,000/- IS TAKEN AND THE CORRECT FIGURE OF LAND I.E. ` 2,30,000 IS REDUCED FROM THIS AMOUNT OF ` ` .11,85,000 THEN THE AMOUNT OF ` `9.55 LACS WILL BE THE OTHER INVESTMENT MADE IN NAZ AR SPORTS COMPLEX. 27. THIS WORKING FULLY TALLIES WITH THE STATEMENT OF THE ASSESSEE IN REGARD TO ANNEXURE A-9 AND PAGES 1 TO 10 OF THE SEIZED DIARY WHICH IS AVAILABLE ON PAGES 98 TO 100 OF THE PAPER BOOK AND WHICH HAS ALSO BEEN REPRODUCED IN THE BODY OF THIS ORDER. THUS, AS PER THE STATEMENT RECORDED DURING THE COURSE OF SEARCH ON 12.10.1993 THE ASSESSEE HAD DISCLOSED TOTAL INVESTMENT IN NAZA R SPORTS COMPLEX AT ` ` .11,85,000/- OUT OF ABOUT ` 2,30,000 WAS FOR THE LAND I.T.A. NO.1779/D/2010 4 AND BALANCE ` 9,55,000 WAS THE INVESTMENT MADE BY THE THREE DIRECTORS JOINTLY. 28. SO FAR AS THE INVESTMENT IN LAND IS CONCERNED, THE DETAILS OF INVESTMENTS ARE AVAILABLE FROM THE DOCUMENTS ON REC ORD. VIDE SALE-DEED DATED 16.3.1992 THE ASSESSEE PURCHASED 0. 166 HECTARE OF LAND @` ` 44,000/-. SALE DEED WAS REGISTERED ON 24.3.1992. THE INVESTMENT IN THE PURCHASE OF THIS LAND WAS MADE BY SHRI DAVENDRA SINGH, GAJENDRA SINGH AND THE ASSESSEE. THUS, 1/3 SHARE OF THE ASSESSEE IN THE PURCHASE OF LAND WAS ` `14,667/-. IT MAY BE POINTED OUT HERE THAT THIS INVESTMENT WAS MADE IN THE FINAN CIAL YEAR 1992- 93 (RELEVANT TO ASSESSMENT YEAR 1993-94) AND NOT IN ASSESSMENT YEAR 1994-95, UNDER CONSIDERATION. 29. THE SECOND PLOT OF LAND MEASURING .43 HECTARE WAS PURCHASED FROM DAVENDRA SINGH BY ASSESSEE AND SHRI GAJENDRA SINGH ON 17.3.1992 FOR A SUM OF ` `56,250/-. THE INVESTMENT OF THE ASSESSEE BEING OF THE TOTAL COST WAS ONLY AT ` `28,000/-. IT IS TO BE POINTED OUT THAT THIS INVESTMENT WAS ALSO MADE B Y THE ASSESSEE AND OTHERS IN FINANCIAL YEAR 1992-93 (A.Y. 1993-94) AND DID NOT PERTAIN TO THE ASSESSMENT YEAR UNDER CONSIDERATION. 30. THE SALE DEEDS REFERRED TO ABOVE ARE AVAILABLE AT PAGES 1 TO 8 & 9 TO 15 OF THE PAPER BOOK AND THE ABOVE FACTS A RE FULLY VERIFIED FROM THIS DOCUMENTARY EVIDENCE. 31. THE THREE DIRECTORS NAMELY SHRI DEVENDRA SINGH , GAJENDRA SINGH AND SHRI RAKESH MAKKAR THEREAFTER TRANSFERRED THE ENTIRE LAND PURCHASED BY THEM THROUGH REGISTERED SALE DEED DATED 17.3.1993. THE LAND WAS SOLD BY THEM TO THE COMPAN Y FOR A SUM OF ` ` 2 LAKH. A SUM OF ABOUT ` ` 30,000/- WAS EXPENDITURE ON STAMPS AND REGISTRATION. THUS M/S NAZAR SPORTS COMPLEX TO OK THE LAND FOR ` `2,30,000/-. THIS DEED WAS EXECUTED IN ASSESSMENT YEAR 1993- 94 AS EXPLAINED ABOVE, THE INVESTMENT MADE WAS IN A SSESSMENT YEAR 1993-94 AND NOT IN THE ASSESSMENT YEAR UNDER C ONSIDERATION. IN VIEW OF THE ABOVE, IT IS CLEAR THAT FIRSTLY THE INVESTMENT IN LAND WAS NOT ACTUALLY AT ` ` 2,30,000/- ALTHOUGH IT HAS BEEN TRANSFERRED FOR THIS SUM TO NAZAR SPORTS COMPLEX @` ` 2,30,000/-. THE ACTUAL INVESTMENT MADE BY THE ASSESSEE IN PURCHASING THE L AND WHICH WAS ULTIMATELY TRANSFERRED TO M/S NAZAR SPORTS COMP LEX WAS ONLY ` ` 14,667+28,125= ` 42,792/-. THE INVESTMENT WAS NOT MADE BY THE ASSESSEE IN THE ASSESSMENT YEAR UNDER CONSIDERATION . 32. NEITHER THE ASSESSING OFFICER NOR THE LEARNED CIT(A) HAS CLOSELY EXAMINED THESE ASPECTS FROM THE DOCUMENT FI LED ON RECORD. NO ENQUIRY WAS MADE BY THEM FROM OTHER DIRECTORS OF THE COMPANY I.T.A. NO.1779/D/2010 5 NOR FROM THE PERSONS FROM WHOM THE LAND WAS ORIGINA LLY PURCHASED. THUS, SO FAR AS THE LAND IS CONCERNED, THE INVESTME NT SHOWN AT ` `2,30,000/- CANNOT BE SAID TO BE THE INVESTMENT MAD E BY THE ASSESSEE ALONE ON THE BASIS OF THE ABOVE FACTS. 33. COMING TO THE AMOUNT OF ` `9,55,000/- IN NAZAR SPORTS COMPLEX, THE FIGURES ARE NOTED ON PAGES 4 & 5 OF TH E SEIZED DIARY WHICH IS AVAILABLE AT PAGE 123 OF THE PAPER BOOK. THESE FIGURES ARE AS UNDER: GAJENDRA- +307.50 SOM+222 +10 -10 317.50 212 34. FROM THE ABOVE FIGURES IT IS CLEAR THAT SHRI G AJENDRA SINGH MADE INVESTMENT OF ` 3.17 LACS AND SHRI HARJIT SINGH SOM ANOTHER DIRECTOR MADE INVESTMENT AT ` 2.12 LACS. THUS, TOTAL INVESTMENT MADE BY THESE TWO DIRECTORS OUT OF ` ` 9,50,000/- WAS ` `5,29,000/-. IF THESE AMOUNTS ARE REDUCED FROM ` ` 9,55,000/- THEN THE INVESTMENT OF THE ASSESSEE WILL COME AT ` `4,26,000/-. THIS FINDING IS FULLY CORROBORATED FROM THE STATEMENT OF THE ASSESSEE ORI GINALLY RECORDED ON THE DATE OF SEARCH WHICH HAS BEEN REPRO DUCED ABOVE AND AS PER WHICH THE INVESTMENT OF ` ` 9,55,000/- WAS MADE BY THE ASSESSEE JOINTLY WITH OTHER DIRECTORS. 35. SO FAR AS THE AMOUNT OF ` ` 4,26,000/- IS CONCERNED, THE ASSESSEES VERSION IS THAT THE FIGURE OF ` ` 6 LACS WHICH HAS BEEN WRONGLY NOTED AGAINST LAND IN PLACE OF ` ` 2,30,000/- IS TO BE REDUCED TO ` ` 2,30,000/- THEN THERE SHALL BE ONLY ` `2,96,000/- AND AS THE ASSESSEE HAS HIMSELF SURRENDERED ` `3 LACS, THERE SHALL BE NO QUESTION OF ANY FURTHER ADDITION. 36. NOW COMING TO THE OTHER ASPECT OF ` ` 5,10,000/-, IT IS FOUND THAT THE ASSESSEE HAS MADE REFERENCE TO PAGE 237 OF THE PAPER BOOK, AS PER WHICH THE ASSESSEE HAS MADE INVESTMENT OF ` `1,60,000+ ` `1,75,000+` ` 1,75,000 THROUGH CHEQUES AND ` ` 1 LAKH FROM CASH. THE AMOUNT OF ` `5.10,000/- RELATES TO INVESTMENT IN NAZAR SPORTS COMPLEX AND THUS IS PART OF THE FIGURE OF ` ` 11.50 LAKH AND AFTER REDUCING THE COST OF LAND OF ` `2,30,000/- COMES TO ` ` 9,55,000/-. THUS, IT IS CLEAR THAT ` `5,10 ,000/- IS PART OF ` `9,55,000/- AND IS NOT A SEPARATE AMOUNT. THE DEPA RTMENTAL AUTHORITIES WRONGLY TREATED THE AMOUNT OF ` ` 5,10,000/- FOR WORKING OUT A SEPARATE ADDITION. IT HAS RESULTED IN DOUBLE ADDITION. IT MAY ALSO BE POINTED OUT THAT IN THIS REGARD THE ASSESSE E HAS MADE RECTIFICATION APPLICATION, COPY OF WHICH IS AVAILAB LE AT PAGE 176 OF THE PAPER BOOK. IN THIS RECTIFICATION APPLICATION THE MISTAKES HAVE I.T.A. NO.1779/D/2010 6 BEEN POINTED OUT BY THE ASSESSEE. THE LEARNED CIT( A) HAS NOT DISPOSED OF THIS APPLICATION SO FAR. 37. THE BIFURCATION OF ` `1,60,000/-, ` 1,75,000 AND ` 1,75,000 IS AVAILABLE AT PAGES 238 AND 240 OF THE PAPER BOOK, W HICH IS AS UNDER:- S.NO. CH.NO. PARTICULARS AMOUNT . 7.8.93 CASH CASH DEPOSIT 100.00 155761 SANJEEV KULLU 50,000.00 847312 HARJEET SINGH 10,000.00 045660 VIJAY MASSI 25,000.00 20.8.93 912671 SETH & CO. 1,00,000 1,75,000 18.5.93 634324 HARRIA MASSI 1,00,000 25.5.93 860925 BR ENTERPRISES 30,0 00 3.6.93 847308 HARJEET SINGH SON 30,00 0 1,75,000 8.9.93 729677 J.K. MADASIM 15,000 11.7.93 029817 RAM PRAKASH 49,000 11.7.93 029816 MUKESH KUMAR 49,000 13.7.93 658936 MUKESH KUMAR 50,000 1,75,000 38. THUS, THE ASSESSEE HAS EXPLAINED THE SOURCE OF INVESTMENT OF ` `1,75,000/-+` ` 1,60,000+ ` 175,000/-. 39. IT IS FURTHER TO BE POINTED OUT THAT REFERENCE HAS BEEN MADE BY THE LEARNED CIT(A) TO THE STATEMENT OF THE ASSES SEE RECORDED ON 24.1.1994. THIS STATEMENT WAS NOT FOUND ON RECORD. THE ASSESSEE ALSO TRIED TO TRACE OUT THIS STATEMENT FROM THE DEP ARTMENTAL AUTHORITIES, BUT HE WAS NOT GIVEN ANY COPY. IN VIE W OF THE ABOVE FACTS, IT IS CLEAR THAT THE DEPARTMENTAL AUTHORITIE S HAVE NOT PROPERLY CONSIDERED THE FACTS WHICH HAVE BEEN NARRATED ABOVE AND WHICH ARE FOUND FROM THE RECORD. WE, THEREFORE, CONSIDER IT PROPER TO SET ASIDE THE FINDINGS OF LEARNED CIT(A) AND RESTORE TH E MATTER BACK TO ASSESSING OFFICER TO EXAMINE THE DETAILS AND TO DEC IDE THE ISSUE IN THE LIGHT OF OUR OBSERVATIONS MADE ABOVE AND AS PER LAW, OF COURSE, AFTER PROVIDING FULL OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. CONSEQUENTLY GROUND NOS.2, 3 & 4 ARE DECIDED ACCORD INGLY. 4. IN TERMS OF AFORESAID DIRECTIONS OF THE ITAT, T HE AO ASKED THE ASSESSEE TO SUBMIT A COPY OF THE STATEMENT RECORDED ON 24 TH JANUARY, 1994. HOWEVER, THE ASSESSEE NEITHER ATTENDED THE HEARING NOR FILED THE COPY OF THE I.T.A. NO.1779/D/2010 7 STATEMENT NOR EVEN ANY WRITTEN SUBMISSIONS BEFORE T HE AO IN THE SET ASIDE PROCEEDINGS. IN THE LIGHT OF THESE FACTS, THE AO A DDED AGAIN THE AMOUNT OF ` `9.55 LACS. 4.1 AS REGARDS THE AMOUNT OF ` ` 5.10 LACS, THE AO NOTICED THAT A TOTAL INVESTMENT OF ` ` 11,37,000/- WAS MADE IN M/S NAZAR SPORTS WORLD (P) LTD. THIS INVESTMENT WAS JOINTLY MADE BY THE ASSESSEE WITH SH RI GAJENDRA SINGH AND SHARE OF THE ASSESSEE WAS ONLY ` `6,10,000/-. REGARDING SOURCE OF INVESTMENT, THE ASSESSEE SUBMITTED THE FOLLOWING DETAILS:- CASH 1,00,000/- 29.5.93 CHQ. NO.876754 INDIAN BANK 1,60,000/- 2.8.93 CHQ. NO.876555 INDIAN BANK 1,75,000/- 23.8.93 CHQ. NO.179321 UNION BANK OF INDIA 1,75,000/- 4.11 TO A QUERY BY THE AO, THE ASSESSEE REPLIED T HAT AMOUNT OF ` `1 LAC FORMED PART OF DISCLOSURE OF ` ` 3 LACS. AS REGARDS LOANS AND GIFTS FROM DIFFERENT FRIENDS AND RELATIVES, THE ASSESSEE SUBMITTED CONFIRMATIONS AND LIST OF SUCH PERSONS. THE ASSESSEE, HOWEVER, DID NOT PRODUCE SHRI RAM PAR KASH, MUKESH KUMAR NOR ANY OTHER THREE PERSONS FOR CROSS EXAMINATION. TH E SUMMONS WERE ALSO ISSUED U/S 131 OF THE ACT ISSUED TO THE AFORESAID LENDERS/ DONORS AT THE ADDRESS GIVEN BY THE ASSESSEE . HOWEVER, SUMMONS ISSUED TO SHRI HAR JEET SINGH WERE RETURNED WITH THE REMARKS LEFT WITHOUT ADDRESS WHILE THE O THER TWO LENDERS/DONORS DID NOT ATTEND. SINCE THE ASSESSEE DID NOT PRODUCE THE AF ORESAID LENDERS/DONORS, THE AO REITERATED THE ADDITION OF ` ` 5.10 LACS. 5. ON APPEAL, THE LEARNED CIT(A) NOTICED THAT THE AO DID NOT COMPLY WITH THE DIRECTIONS OF THE ITAT NOR SUPPLIED THE ST ATEMENT DATED 24 TH JANUARY, 2004, WHICH FORMED THE BASIS FOR ENTIRE DISPUTE. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND THE DIRECTIONS OF T HE ITAT IN THEIR ORDER DATED 31 ST AUGUST, 2005, THE LEARNED CIT(A) CONCLUDED AS UNDE R:- I.T.A. NO.1779/D/2010 8 5. I HAVE GONE THROUGH THE ORDER OF THE ITAT AND A LSO CONSIDERED THE SUBMISSIONS MADE BY THE APPELLANT AS WELL AS THE ORDER OF THE ASSESSING OFFICER. HOWEVER, I FIND TH AT WHILE REFRAMING THE ASSESSMENT SET ASIDE BY THE ITAT, THE ASSESSING OFFICER HAS NOT CARRIED OUT THE DIRECTIONS AND HAS MECHANICALLY REPEATED THE ADDITIONS MADE IN THE ORIGINAL ORDER EVEN THOUGH TH E FINDINGS OF THE ITAT WERE ON THE CONTRARY. I FIND THAT THE ASSESSI NG OFFICER HAS NOT CARRIED OUT THE DIRECTIONS GIVEN BY THE ITAT AND, T HEREFORE, I CONSIDER IT PROPER TO DELETE THE ADDITION OF ` ` 9.55 LACS AND ` ` 5.10 LACS MADE BY THE ASSESSING OFFICER ON ACCOUNT OF AL LEGED UNEXPLAINED INVESTMENT MADE IN PROPERTY AT DEHRADUN . 6. THE REVENUE IS NOW IN APPEAL BEFORE US AGAINST THE AFORESAID FINDINGS OF THE LEARNED CIT(A).AT THE OUT SET, THE LEARNED DR WHILE CARRYING US THROUGH THE IMPUGNED ORDER CONTENDED THAT THE ORDER OF THE LEARNED CIT(A) IS CRYPTIC NOR GIVES ANY REASONS FOR DELETING THE ADDI TIONS. WHILE RELYING DECISION OF A CO-ORDINATE BENCH REPORTED IN JCIT VS. SWARUP VEG ETABLE PRODUCTS INDUSTRIES LTD,96 ITD 468, THE LD. DR SUBMITTED THAT THE LD. C IT(A) HAS TO GIVE A POSITIVE FINDING FOR HIS DECISION AND SIMPLY BECAUSE AO DID NOT COMPLY WITH THE DIRECTIONS OF THE ITAT, ADDITION COULD NOT BE DELETED. ON THE OTHER HAND, THE LD. AR ON BEHALF OF THE ASSESSEE WHILE CARRYING US THROUGH TH E IMPUGNED ORDER AND DIRECTIONS OF THE ITAT, SUPPORTED THE FINDINGS OF T HE LEARNED CIT(A). 7. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUG H THE FACTS OF THE CASE AS ALSO THE DIRECTIONS OF THE ITAT IN THEIR ORDER DATE D 31 ST AUGUST, 2005. THE ITAT WHILE SETTING ASIDE THE ISSUE TO THE FILE OF THE AO CATEGORICALLY OBSERVED THAT THE ASSESSEE HAD 1/3 RD SHARE IN 0.166 HECTARE. OF LAND PURCHASED VIDE REG ISTERED DEED EXECUTED ON 24 TH MARCH, 1992 AND THIS INVESTMENT WAS NOT MADE IN TH E YEAR UNDER CONSIDERATION. IT IS ALSO MENTIONED THAT THE SECOND PORTION OF LAND ADMEASURING.43 HECTARE WAS PURCHASED FROM DAVENDRA SINGH BY ASSESSEE AND SHRI GAJENDRA SINGH ON 17.3.1992 FOR A SUM OF ` `56,250/-. THE INVESTMENT OF THE ASSESSEE BEING OF THE TOTAL COST WAS ONLY AT ` `28,000/- AND THIS INVESTMENT WAS ALSO MADE BY THE ASSESSEE AND OTHERS IN THE FY 1992-93 (A.Y. 1993-94) AND DID NOT PERTAIN TO THE ASSESSMENT YEAR UNDER CO NSIDERATION. THE THREE DIRECTORS NAMELY SHRI DEVENDRA SINGH, GAJENDRA SING H AND SHRI RAKESH MAKKAR I.T.A. NO.1779/D/2010 9 THEREAFTER TRANSFERRED THE ENTIRE LAND PURCHASED BY THEM THROUGH REGISTERED SALE DEED DATED 17.3.1993 FOR A SUM OF ` ` 2 LAKH WHILE A SUM OF ABOUT ` ` 30,000/- WAS EXPENDITURE ON STAMPS AND REGISTRATION. ACCORDINGLY , THE ITAT CONCLUDED THAT THE INVESTMENT IN LAND BY THE ASSESSEE WAS ACTUALLY AT ` 42,792/- AND THE INVESTMENT WAS NOT MADE BY THE ASSESSEE IN THE ASSESSMENT YEAR UNDER CONSIDERATION WHILE THE AO AND THE LEARNED CIT(A) DID NOT CLOSELY EXAMI NED THESE ASPECTS FROM THE DOCUMENTS FILED ON RECORD NOR MADE ANY ENQUIRY FRO M OTHER DIRECTORS OF THE COMPANY OR FROM THE PERSONS FROM WHOM THE LAND WAS ORIGINALLY PURCHASED. THUS, SO FAR AS THE LAND IS CONCERNED, THE INVESTME NT SHOWN AT ` `2,30,000/- CANNOT BE SAID TO BE THE INVESTMENT MADE BY THE ASS ESSEE ALONE ON THE BASIS OF THE ABOVE FACTS, THE ITAT CONCLUDED. 7.1 THE ITAT WHILE REFERRING TO PAGE 4 & 5 O F THE SEIZED DIARY FURTHER OBSERVED THAT TOTAL INVESTMENT BY THE TWO OTHER DI RECTORS OUT OF ` `9.55 LACS WAS ` `5.29 LACS AND IF THESE AMOUNTS BY THE TWO DIRECTOR S SHRI GAJENDRA SINGH AND HARJEET SINGH SONDH WERE REDUCED FROM ` ` 9.55 LACS, THE INVESTMENT REQUIRED TO BE EXPLAINED WORKED OUT TO ` `4,26,000/-. THE ITAT ALSO OUT THAT THIS FINDING IS FULLY CORROBORATED FROM THE STATEMENT OF THE ASSESS EE ORIGINALLY RECORDED ON THE DATE OF SEARCH WHICH HAS BEEN REPRODUCED IN THE ORD ER OF THE ITAT AND AS PER WHICH THE INVESTMENT OF ` ` 9,55,000/- WAS MADE BY THE ASSESSEE JOINTLY WITH OT HER DIRECTORS. ACCORDING TO THE ASSESSEE, THE FIGURE O F ` `6 LACS HAS BEEN WRONGLY NOTED AGAINST LAND IN PLACE OF ` ` 2 LACS AND SINCE AN AMOUNT OF ` `3 LACS HAS ALREADY BEEN OFFERED TO TAX, NO FURTHER ADDITION CO ULD BE MADE FOR THE DIFFERENCE ` 1,96,000/-(4,26,000 2,30,000). THE ITAT FURTHER RECORDED A FINDING THAT ` ` 5.10 LACS ADDED BY THE AO FORMED PART OF ADDITION OF ` ` 9.55 LACS AND WAS NOT A SEPARATE AMOUNT AND THE DEPARTMENTAL AUTHORITIES W RONGLY TREATED THE AMOUNT OF ` ` 5,10,000/- FOR WORKING OUT A SEPARATE ADDITION. IT WAS ALSO MENTIONED THAT RECTIFICATION APPLICATION MADE BY THE ASSESSEE IN T HIS REGARD WAS PENDING BEFORE THE LD. CIT(A). HOWEVER, SINCE THE DEPARTMENTAL AUTHORITIES DID NO T APPRECIATE THE FACTS CORRECTLY, THE ITAT RESTORED THE MATTER B ACK TO THE FILE OF AO TO EXAMINE THE DETAILS AND DECIDE THE ISSUE IN THE LIGHT OF TH EIR OBSERVATIONS OF THE ITAT IN I.T.A. NO.1779/D/2010 10 THEIR AFORESAID .ORDER. IN THE LIGHT OF AFORESAID FINDINGS OF FACTS RECORDED BY THE ITAT, ESPECIALLY WHEN THE AO REITERATED THE ADDITIO N WITHOUT EVEN TAKING COGNIZANCE OF THE AFORESAID FINDINGS RECORDED BY TH E ITAT, THE LD. DR NOW PLEADS THAT THE LD. CIT(A) HAVE NOT RECORDED ANY POSITIVE FINDINGS. WE FAIL TO UNDERSTAND AS TO WHICH SPECIFIC FINDINGS THE LD. CIT(A) COULD RECORD AT THIS STAGE WHEN THE ITAT HAVE ALREADY RECORDED THEIR FINDINGS ON BOTH T HE ADDITIONS. THUS, WE ARE NOT INCLINED TO ACCEPT THIS PLEA OF THE LD. DR.DESP ITE RECORDING A SPECIFIC FINDING BY THE ITAT IN THEIR ORDER DATED 31 ST AUGUST, 2005 THAT INVESTMENT IN LAND BY THE ASSESSEE WAS ONLY ` 42,792/- AND THAT TOO WAS NOT MADE IN THE YEAR UNDE R CONSIDERATION WHILE ADDITION OF ` `5,10,000/- WAS A DOUBLE ADDITION, THE AO REITERATED THE ADDITIONS, GIVING SCANT REGARD TO TH E FINDINGS OF THE ITAT AND WITHOUT EVEN REFERRING TO ANY INCRIMINATING MATERIA L. EVEN WITH REGARD TO THE AMOUNT ` ` 4,26,000/-[9,55,000-5,29,000) , THE ASSESSEES VERS ION BEFORE THE ITAT WAS THAT THE FIGURE OF ` ` 6 LACS HAD BEEN WRONGLY NOTED AGAINST LAND IN PLACE OF ` ` 2,30,000/- AND IF THAT IS CORRECTED,, THE REMAININ G AMOUNT WOULD COME TO ` `1,96,000/- .SINCE THE ASSESSEE HIMSELF SURRENDERE D ` `3 LACS, THERE COULD BE NO QUESTION OF ANY FURTHER ADDITION . THOUGH THE S TATEMENT OF THE ASSESSEE IS STATED TO HAVE BEEN RECORDED ON 24.1.1994, THIS STA TEMENT WAS NEITHER PLACED BEFORE THE LD. CIT(A) NOR EVEN BEFORE US. NEITHER T HE AO IN THE ASSESSMENT ORDER NOR THE LD. DR APPEARING BEFORE US REFERRED T O ANY MATERIAL, CONTROVERTING THE SUBMISSIONS OF THE ASSESSEE OR THE CONCLUSION D RAWN BY THE LD. CIT(A) IN THE LIGHT OF FINDINGS OF THE ITAT IN THEIR ORDER DATED 31.8.2005.IN THESE CIRCUMSTANCES, THERE IS NO BASIS FOR SETTING ASIDE THE MATTER AGAIN TO THE FILE OF THE AO, AS PLEADED BY THE LD. DR. IN VIEW OF THE F OREGOING, ESPECIALLY IN THE ABSENCE OF ANY BASIS , WE ARE NOT INCLINED TO INTER FERE WITH THE CONCLUSION OF THE LD. CIT(A). THEREFORE, GROUND NOS.1 & 2 IN THE APPE AL ARE DISMISSED. 8. NO ADDITIONAL GROUND HAVING BEEN RAISED BEFORE US IN TERMS OF RESIDUARY GROUND IN THE APPEAL, ACCORDINGLY THIS GROUND IS DI SMISSED. 9. NO OTHER PLEA OR SUBMISSION WAS MADE BEF ORE US. I.T.A. NO.1779/D/2010 11 10. IN RESULT, APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT SD/- SD/- (U.B. S. BEDI) (A.N. PAH UJA) JUDICIAL MEMBER ACCOUNTANT MEMBER NS COPY OF THE ORDER FORWARDED TO :- 1. MR. RAKESH MAKKAR, B-81, C.C. COLONY, OPPOSITE R ANA PRATAP BAGH, DELHI-7 2. INCOME TAX OFFICER, WARD 47 (1), NEW DELHI. 3. CIT (APPEALS)-XXX, NEW DELHI 4. THE CIT CONCERNED. 5. THE DR, ITAT,F BENCH, NEW DELHI 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, DELHI