Mohinder Trilokchand Kalani, Mumbai V. Income-tax Officer,

ITA 1911/PUN/2014

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9190 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 11 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 16-08-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 24-10-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Search and seizure; Document seized; Documents seized

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER . / ITA NO.1910/PUN/2014 / ASSESSMENT YEAR : 2010-11 MR. MOHINDER TRILOKCHAND KALANI, LEGAL HEIR OF LATE SHRI TRILOKCHAND KALANI 3201, VERONA, CLIFF AVENUE ROAD, HIRANANDANI ESTATE, MUMBAI 400 076 PAN : AJDPK9428N VS. ITO, CENTRAL-3, NASHIK APPELLANT RESPONDENT . / ITA NO.1911/PUN/2014 / ASSESSMENT YEAR : 2010-11 MR. MOHINDER TRILOKCHAND KALANI, 3201, VERONA, CLIFF AVENUE ROAD, HIRANANDANI ESTATE, MUMBAI 400 076 PAN : AJGPK0791D VS. ITO, CENTRAL-3, NASHIK APPELLANT RESPONDENT / ORDER PER R.S.SYAL, VP : THESE APPEALS BY TWO DIFFERENT BUT RELATED ASSESSES (FA THER AND SON) ARISE FROM THE DIFFERENT ORDERS PASSED BY THE APPELLANT BY SHRI RAKESH JOSHI RESPONDENT BY SHRI ABHIJIT HALDER DATE OF HEARING 01-10-2019 DATE OF PRONOUNCEMENT 04-10-2019 ITA NOS.1910 & 1911/PUN/2014 A.Y. 2010-11 2 COMMISSIONER OF INCOME-TAX (APPEALS)-1, NASHIK ON 25-08- 2014 IN RELATION TO THE ASSESSMENT YEAR 2010-11. 2. FIRST WE ARE TAKING UP THE APPEAL OF SH. MOHINDER T. KALA NI LEGAL HEIR OF LATE SH. TRILOKCHAND T. KALANI IN ITA NO.1910/PUN/2014. THE ASSESSEE IS PART OF KALANI GROUP OF CASES AT NASHIK, WHICH WAS SUBJECTED TO SEARCH AND SEIZURE ACTION U/S.132(1) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER CALLED THE ACT) ON 02-02-2011. DURING THE COURSE OF SEARCH, CE RTAIN INCRIMINATING DOCUMENTS WERE FOUND FROM THE RESIDENTIAL PREMIS ES OF THE ASSESSEE, WHICH WERE SEIZED. ONE OF SUCH SEIZED DOCUMENTS, NUMBERED AS PAGE NO. 147 TO 150 OF ANNEXURE-A/1, WAS A HAND LOAN DEPOSIT RECEIPT DATED 04-12-2009 MADE ON A STAMP PAP ER OF RS.100/- BETWEEN MR. TRILOKCHAND T. KALANI AND MR. MOHIND ER T. KALANI (THE PAYERS) AND M/S. KARDA CONSTRUCTION PVT. LTD. (M/S.KCPL) (THE PAYEE) THROUGH ITS DIRECTOR MR. NARESH J. K ARDA. THE SAID RECEIPT ACKNOWLEDGED THE RECEIPT OF HAND LOAN OF RS.2.00 CRORE BY MR. NARESH J. KARDA ON BEHALF OF M/S KCPL F ROM MR. TRILOKCHAND T. KALANI AND MR. MOHINDER T. KALANI FOR PURCH ASE OF AGRICULTURAL LAND AT SURVEY NO.41/1/1+2+3+4+5+6, TOTAL AREA ADMEASURING 3153.73 SQ.MTRS, AANANDVALI, NASHIK. TOWAR DS THE SECURITY OF THE SAID LOAN, THE RECEIPT RECORDS THAT THE PAYEE GAVE ITA NOS.1910 & 1911/PUN/2014 A.Y. 2010-11 3 THREE CHEQUES OF RS.40.00 LAKH EACH TOTALING RS.1.20 CROR E IN THE NAME OF MR. TRILOKCHAND T. KALANI AND TWO CHEQUES OF RS. 40.00 LAKH EACH TOTALING RS.80.00 IN THE NAME OF MR. MOHINDER T. KALANI. THE SAID RECEIPT WAS SIGNED BY MR. NARESH J. KAR DA, DIRECTOR OF M/S. KARDA CONSTRUCTION PVT. LTD. DURING THE COUR SE OF THE ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS ASKED TO EXPLAIN AS TO WHETHER SUCH TRANSACTION WAS RECORDED IN THE BOOKS OF A CCOUNT. IN RESPONSE, THE ASSESSEE DENIED THE TRANSACTION AND SUB MITTED THAT NO SUCH LOAN WAS ACTUALLY GIVEN AND IN FACT, NO SUCH TRANS ACTION TOOK PLACE. THE ASSESSING OFFICER (AO) OBSERVED THAT THE ASSESSEE VIDE HIS STATEMENT U/S.132(4) HAD ADMITTED TO BE INVOLVED IN BUSINESS OF MONEY LENDING, GIVING HAND LOAN FINANCE, PURC HASE AND SALE OF LAND. HE FURTHER ADMITTED THAT HE HAD GIVEN CASH LO AN TO VARIOUS PERSONS AND AGAINST SUCH LOANS HE HAD TAKEN THE C HEQUES AS SECURITY. IN THIS BACKDROP OF FACTS, THE AO REFUSED TO A CCEPT THE CONTENTION OF THE ASSESSEE THAT NO TRANSACTION ACTUALLY TOOK PLA CE FOR WHICH HAND LOAN RECEIPT WAS FOUND AT THE PREMISES O F THE ASSESSEE. HE MADE AN ADDITION OF RS.1.20 CRORE ON THIS C OUNT IN THE HANDS OF THE ASSESSEE AND A FURTHER ADDITION OF RS.80.0 0 LAKH IN THE HANDS OF MR. MOHINDER T. KALANI, THE OTHER ASSESSEE IN TH IS BATCH OF APPEALS, BEING THE AMOUNTS FOR WHICH THE CHEQUES WERE ISSUED ITA NOS.1910 & 1911/PUN/2014 A.Y. 2010-11 4 BY M/S. KCPL. THE LD. CIT(A) AFFIRMED THE ACTION OF THE AO AGAINST WHICH THE ASSESSEE HAS APPROACHED THE TRIBUNAL. 3. WE HAVE HEARD BOTH THE SIDES AND GONE THROUGH THE REL EVANT MATERIAL ON RECORD. THE FOUNDATION OF THE ADDITION IS THE HAN D LOAN RECEIPT DATED 04-12-2009 FOUND FROM THE PLACE OF THE ASSESSEE AT THE TIME OF SEARCH, WHOSE ENGLISH TRANSLATION HA S BEEN PLACED ON RECORD. THIS IS A RECEIPT ON NON-JUDICIAL STAMP PA PER OF RS.100/-. AS PER THIS RECEIPT SIGNED BY M/S. KCPL THROU GH SH. NARESH KARDA, BEING LOAN RECEIVER, THERE IS A DESCRIPTION OF PROPERTY, NAMELY, LAND BEARING SURVEY NO. 41/1/1+2+3+4+5+ 6, ADMEASURING 3153.73 SQ.MTRS SITUATED AT AANANDVALI, NASHIK, WHICH WAS SOUGHT TO BE PURCHASED BY THE M/S KCPL. PARA 2 OF THE HAND LOAN RECEIPT RECORDS THAT BOTH THE PAYER AND THE PAYE E OF THE LOAN ARE FAMILIAR AND WELL CONNECTED. THEN THERE IS CLEAR CUT MENTION OF KARDA CONSTRUCTION PVT. LTD. HAVING RECEIVED LOAN FROM MR. TRILOKCHAND T. KALANI AND MR. MOHINDER T. KALANI , THE RELEVANT PART IN THIS REGARD READS AS UNDER :- 2) .WE WANTED TO PURCHASE THE PROPERTY MENTIONED IN PARA 1, FROM ITS PREVIOUS OWNERS, IN OUR NAME. WE NEED FINANCIA L ASSISTANCE TO PURCHASE THE SAID PROPERTY, WE MADE A REQUEST TO YO U FOR HAND LOAN TO US AND IN VIEW OF OUR REQUEST, OUR BUSINESS AND ON DEMANDING A HAND LOAN OF RS.2,00,00,000/- ( IN WORDS TWO CRORE ONLY) FROM US, YOU ACCEPTED OUR REQUEST OF HAND LOAN CONSIDERING OUR B USINESS, OUR FINANCIAL SITUATION AND OUR NEEDS AND YOU HAVE ALREADY PAID US AN ITA NOS.1910 & 1911/PUN/2014 A.Y. 2010-11 5 AMOUNT OF RS.2,00,00,000/- ( IN WORDS TWO CRORE ONLY) BY CHEQUE AND IN CASH FROM TIME TO TIME. WE HAVE RECEIVED THE SAID AMOUNT AND WE ACKNOWLEDGE TO HAVE RECEIVED THE SAME . WE HAVE NO GRIEVANCE OR OBJECTION OF THE SAME AND THERE WILL BE NO COMPLAIN TS AFTER THIS. 3) YOU HAVE GIVEN THIS AMOUNT WITHOUT INTEREST TO US FOR USE AND WE SHALL REFUND THE SAID AMOUNT BY THE CHEQUES WRITTEN HEREUNDER, THE SAID AMOUNT IS TO BE RETURNED WITHOUT ANY REASON OR COMPLAINT AND WE HEREBY GIVE ASSURANCE TO YOU BY THIS HAND LOAN RECE IPT FOR THE SAME. 4) YOU SHALL RECOVER THE SAID AMOUNT TIME TO TIME BY D EPOSITING THE CHEQUES AS MENTIONED HEREUNDER. IF WE FAIL TO REFUND THE S AID AMOUNT TO YOU OR REFUSED TO PAY THE SAID AMOUNT OR IF THE SAID CHEQUES ARE DISHONOURED AND YOU WILL NOT RECEIVED THE CHEQU E AMOUNT THEN YOU SHALL TAKE NECESSARY LEGAL ACTION FOR RECOVER T HE SAID AMOUNT AND WE WILL BE RESPONSIBLE FOR THE EXPENSE INCURRED BY SUCH LEGAL ACTION. THE CHEQUE DETAILS OF THE REFUND AMOUNT IS MENTIONE D AS UNDER : THE CHEQUES OF THE BUSINESS CO-OP. BANK LTD. BRANCH NASHIK ROAD, AS MENTIONED BELOW, HAVE BEEN ISSUED IN FAVOR OF MR. TRILOKCHAND TEJANDAS KALANI : SR.NO. CHEQUE NO. AMOUNT DATE 1 973769 40,00,000/- 01/05/12 2 973770 40,00,000/- 01/08/12 3 973771 40,00,000/- 01/11/12 TOTAL 1,20,00,000/- THE CHEQUES OF THE BUSINESS CO-OP. BANK LTD., BRANC H NASHIK ROAD, AS MENTIONED BELOW, HAVE BEEN ISSUED IN FAVOR OF MR . MOHINDAR TRILOKCHAN KALANI. SR.NO. CHEQUE NO. AMOUNT DATE 1 973772 40,00,000/- 01/02/13 2 973773 40,00,000/- 01/05/13 TOTAL 80,00,000/- THUS WE HAVE ISSUED THE CHEQUES AGAINST REPAYMENT OF HAN D LOAN AMOUNT RS.2,00,00,000/ - (IN WORDS TWO CRORE ONLY) WHICH WE HAVE TAKEN FROM YOU. YOU SHOULD PRESENT THE SAID CHEQUES ON RESPECTIVE DATE AND ENCASH THE CHEQUE AMOUNT. TO HONOR THE SA ID CHEQUES NO RESPECTIVE DATE SHALL BE OUR RESPONSIBILITY. ITA NOS.1910 & 1911/PUN/2014 A.Y. 2010-11 6 4. ON GOING THROUGH THE CONTENTS OF THE ABOVE HAND LOAN RECEIPT, IT IS CLEAR BEYOND ANY SHADOW OF DOUBT THAT SH. KA RDA RECEIVED A SUM OF RS.2.00 CRORE FROM BOTH THE ASSESSEE S UNDER CONSIDERATION AND FURTHER SUCH A RECEIPT WAS IN PARTS AND TH E PROCESS OF RECEIPT OF THE AMOUNT BY SH. KARDA ON BEHALF O F M/S KCPL GOT OVER ON 4.12.2009, WHEN HE ACKNOWLEDGED TO HAV E RECEIVED LOAN OF RS.2.00 CRORE FROM THEM. IT IS FURTHER EVIDENT THAT THE LOAN WAS TAKEN FOR A SPECIFIC PURPOSE, BEING, PURCHAS E OF THE AGRICULTURAL LAND AS DESCRIBED IN THE HAND LOAN RECEIPT. PURSU ANT TO THE REMAND BY THE LD. CIT(A), THE AO MADE FURTHER ENQU IRIES FROM M/S KCPL, WHICH THOUGH DENIED TO HAVE RECEIVED LOAN FROM THE ASSESSEE, BUT ACCEPTED THAT THE TRANSACTION OF PURCHASE OF AGRICULTURAL LAND AS MENTIONED IN THE RECEIPT DID TAKE PLACE AND FURTHER IT DID NOT POSITIVELY DECLARE THE SOURCE OF RECEIPT OF MONEY FOR THE TRANSACTION. IT IS VERY CLEARLY WRITTEN IN THE RECEIPT TH AT: `YOU HAVE ALREADY PAID US AN AMOUNT OF RS.2,00,00,000/ -. WE HAVE RECEIVED THE SAID AMOUNT AND WE ACKNOWLEDGE TO HAVE RECEIV ED THE SAME . PARA 3 OF THE RECEIPT CATEGORICALLY RECORDS ` YOU HAVE GIVEN THIS AMOUNT AND THEN THERE IS UNDERTAKING THAT ` WE SHALL REFUND THE SAME AMOUNT OF THE CHEQUES WRITTEN HEREUNDER . NOT ONLY THAT, THERE IS AN APPARENT MENTION OF NAME OF THE BANK, CHEQUE NOS., ITA NOS.1910 & 1911/PUN/2014 A.Y. 2010-11 7 AMOUNT AND DATE THROUGH WHICH THE LOAN WAS PROPOSED TO BE REPAID. THERE IS A FURTHER MENTION THAT THE CHEQUES HAVE BE EN ISSUED IN FAVOUR OF BOTH THE ASSESSES. THREE CHEQUES O F RS.40.00 LAKH EACH DATED 01-05-2012, 01-08-2012 AND 01-11-2012 WERE ISSUED IN FAVOUR OF THE ASSESSEE UNDER CONSIDERATION AND TWO CHEQUES OF RS.40.00 LAKH EACH DATED 01-02-2013 AND 01 -05-2013 WERE ISSUED IN FAVOUR OF SH. MOHINDER T. KALANI, THE OTHER ASSESSEE IN THIS BATCH OF APPEALS. ALL THESE DATES ARE POST THE RECEIPT OF HAND LOAN. ONCE WE EXAMINE THE HAND LOAN RE CEIPT IN ENTIRETY, IT BECOMES MANIFEST THAT THE ASSESSEES UNDER CONSIDE RATION HAD GIVEN LOAN OF RS.2.00 CRORE TO M/S. KCPL. THE FACT TH AT THE ENTIRE TRANSACTION OF RS.2.00 CRORE HAS NOT BEEN RECORDED IN THE REGULAR BOOKS OF ACCOUNT OF BOTH THE ASSESSES, IS NOT DIS PUTED. THE DENIAL OF TRANSACTION BY M/S. KCPL IN THE SUBSEQUENT PROCEEDIN GS IS OF NO AVAIL IN VIEW OF UNAMBIGUOUS INCRIMINATING EVIDEN CE FOUND DURING THE COURSE OF SEARCH FROM THE RESIDENTIAL PRE MISES OF THE ASSESSEE. THE LD. AR CONTENDED THAT NON-SIGNING OF SU CH A DOCUMENT BY THE ASSESSEE PROVED THAT THE SAME WAS NOT AC TED UPON. WE DO NOT AGREE WITH THIS CONTENTION. UNLIKE AN AGREEMENT, WHIC H IS REQUIRED TO BE SIGNED BY ALL THE PARTIES TO IT, A RECEIPT FOR MONEY IS TO BE SIGNED ONLY BY THE PERSON RECEIVING IT. THERE IS NO ITA NOS.1910 & 1911/PUN/2014 A.Y. 2010-11 8 REQUIREMENT THAT THE PAYER OF THE MONEY SHOULD ALSO SIGN THE RECEIPT OF MONEY. SINCE THE OBLIGATION TO RETURN THE MONEY IS OF THE PAYEE, IT IS HE WHO HAS TO SIGN THE RECEIPT. WE, THEREFO RE, HOLD THAT THE AUTHORITIES BELOW WERE FULLY JUSTIFIED IN NOT ACCEPTING THE CONTENTION OF THE ASSESSE THAT HE HAD NOT GIVEN ANY SUCH LOA N TO SH. KARDA ON BEHALF OF M/S KCPL. 5. THE ASSESSEE HAS RAISED THE FOLLOWING ADDITIONAL GROUND, READING AS UNDER : 1. WITHOUT PREJUDICE TO THE OTHER GROUNDS, THE LD. ASSESSING OFFICER AS WELL AS CIT(A) ERRED IN CONFIRMING ADDIT ION WITHOUT GIVING THE BENEFIT OF TELESCOPING AGAINST THE INCOME ALREA DY OFFERED/ADDITION MADE IN THE HANDS OF THE APPELLANT/GROUP CONCERNS. 6. THROUGH THE ABOVE ADDITIONAL GROUND, THE ASSESSEE IS SE EKING THE BENEFIT OF TELESCOPING AGAINST THE INCOME ALREADY OFFERED/ADDITION MADE IN THE HANDS OF THE ASSESSEE. THE LD . DR DID NOT RAISE ANY SERIOUS OBJECTION TO THE ADMISSION OF THE ADDITIO NAL GROUND. WE, THEREFORE, ADMIT THE ADDITIONAL GROUND AND TAKE IT UP FOR DISPOSAL ON MERITS. 7. THE LD. AR CONTENDED THAT THE ASSESSEE OUGHT TO HAVE BEEN GIVEN THE BENEFIT OF TELESCOPING OF OTHER UNDISCLOSED INCOME SUO ITA NOS.1910 & 1911/PUN/2014 A.Y. 2010-11 9 MOTU OFFERED OR THE ADDITION MADE IN RESPECT OF SUCH UNDISCLOSE D INCOME. THE LD. DR OBJECTED TO THE SAME. 8. WE HAVE HEARD BOTH THE SIDES AND GONE THROUGH THE RE LEVANT MATERIAL ON RECORD. IF SOME UNDISCLOSED INCOME IS EARNED BY AN ASSESSEE, WHICH HAS BEEN OFFERED/TAXED EITHER BY WAY OF SURRENDER OR ADDITION AND SUCH UNDISCLOSED INCOME IS FOUND TO BE UTILISE D ELSEWHERE, THEN, OBVIOUSLY THE SPENDING OF SUCH AN INCOME WILL NOT AGAIN ATTRACT TAXATION. UNDISCLOSED INFLOW OF INCOME TAXED GETS TELESCOPED INTO THE UNDISCLOSED OUTFLOW OF INCOME. TAXABILITY/ADDITION CAN BE ONLY TO THE EXTENT OF THE HIGHER OF THE UNDISCLOSED INCOME/EXPENDITURE. 9. ADVERTING TO THE FACTS OF THE EXTANT CASE, IT IS FOUND THAT ONE OF THE SEIZED DOCUMENTS FOUND DURING THE COURSE OF SEARC H, WHOSE COPY HAS BEEN PLACED ON RECORD AT PAGE 62 OF THE PAPE R BOOK, CONTAINED DETAILS OF LOAN GIVEN BY THE ASSESSEES TO THE TUNE OF RS.1,22,06,750/- IN JULY, 2008. THEREAFTER, THIS DOCUM ENT RECORDS INTEREST FROM JULY, 2008 TO AUGUST, 2009 AT RS.1,22,06,75 0/- PER MONTH. THERE IS REFERENCE OF FURTHER INTEREST OF RS.1,54 ,472/- AT THE END OF THE CALCULATION WITH REMARKS 9 SEPT TO MARCH-10. TWO THINGS ARE DISCERNIBLE FROM THE DOCUMENT. FIRST IS THAT THE ASSE SSEE ITA NOS.1910 & 1911/PUN/2014 A.Y. 2010-11 10 ADVANCED A LOAN OF RS.1.22 CRORE FROM UNDISCLOSED SOUR CES IN JULY, 2008, OUT OF WHICH A SUM OF RS.1.00 CRORE WAS RECEIVE D BACK IN AUGUST, 2009. SECOND IS THAT ON SUCH A LOAN MADE OUT OF UNDISCLOSED SOURCES, THE ASSESSEE EARNED INTEREST INCOME O F RS.15 LAKH AND ODD. IT IS AN ADMITTED POSITION THAT THE ASSESSEE OFF ERED A SUM OF RS.1.37 CRORE (RS.1.22 CRORE TOWARDS PRINCIPAL AMOUNT OF LOAN AND INTEREST OF RS.15 LAKH) FOR TAXATION IN HIS RETURN FO R THE A.Y. 2009-10. WHILE FINALIZING THE ASSESSMENT OF THE ASSESSE E FOR A.Y. 2009-10, THE AO NOTED DISCREPANCY IN CALCULATION OF INTE REST ON SUCH PRINCIPLE OF RS.1.22 CRORE FOR THE PERIOD JULY, 2 008 TO MARCH, 2009 AND MADE FURTHER ADDITION OF RS.1,98,603/-. APART FROM THAT, FOR THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAD SUO MOTU OFFERED INTEREST ON SUCH LOAN AS INCOME AMOUNTING TO RS.6,51,657/-. CONTINUING WITH THE SAME DISCREPANCY, THE A O MADE FURTHER ADDITION OF RS.91,085/-. THUS, THE POSITION WHICH EMERGES FROM THE ABOVE DISCUSSION IS THAT THE ASSESSEE GO T TAXED FOR A SUM OF RS. 146.4 LAKH AND ODD IN HIS ASSESSMENTS FOR THE A.YS. 2009-10 AND 2010-11. THE LD. AR CONTENDED THAT S URRENDER OF INCOME OF RS.1.37 CRORE FOR THE A.Y. 2009-10 HAS N OT BEEN ASSAILED IN FURTHER APPEALS AND FURTHER THE ADDITIONS MADE B Y THE AO FOR THE A.Y. 2009-10 AT RS.1,98,603/- AND FOR THE A .Y. 2010- ITA NOS.1910 & 1911/PUN/2014 A.Y. 2010-11 11 11 AT RS.91,805/- HAVE ALSO NOT BEEN CHALLENGED, THEREBY ALLOWING THE FINALITY TO HAPPEN. IT IS THUS EVIDENT THAT THE LOAN OF RS.22 LAKH AS ADVANCED OUT OF RS.1.22 CRORE IN JULY, 2008 CONTINUE D UP TO THE DATE OF ADVANCING OF HAND LOAN OF RS.2.00 CRORE TO M/S KCPL UP TO 4.12.2009. THE CRUX OF THE MATTER IS THAT OUT OF THE AB OVE SURRENDERED/TAXED UNDISCLOSED INCOME, THE ASSESSEE HAD AVAILABILITY OF FUNDS TO THE TUNE OF RS. 1,24,42,065/- (RS. 1.00 CRORE RECEIVED BACK OUT OF PRINCIPLE AMOUNT OF RS.1.22 CRORE + INTEREST INCOME OF RS.15.00 LAKH FOR THE A.Y. 2009-10 AND RS.6, 51,657/- OFFERED FOR TAXATION FOR THE A.Y. 2010-11 + ADDITION OF IN TEREST MADE BY THE AO AT RS.1,98,603/- FOR THE A.Y. 2009-10 A ND RS.91,805/- FOR THE A.Y. 2010-11) FOR USE. THE LOAN IN QUESTION WAS GIVEN UP TO 04-12-2009, MEANING THEREBY THAT THE AMO UNT OF INCOME EARNED BY THE ASSESSEE AND SUBJECTED TO TAX FOR THE A.YRS. 2009-10 AND 2010-11 COMES TO RS.1,24,42,062/-, WHICH WAS AVAILABLE WITH THE ASSESSEE AT THE TIME OF ADVANCING LOAN TO M/S . KCPL. THE DEPARTMENT HAS NOT SHOWN THAT SUCH AN AMOUNT W AS SPENT ELSEWHERE. IN THAT VIEW OF THE MATTER, IT WILL HAVE TO BE PRESUMED THAT SUCH AMOUNT WAS UTILIZED BY THE ASSESSEES IN QUESTION IN ADVANCING LOAN OF RS.2.00 CRORE TO M/S. KCPL. T HE ADVANCING OF TOTAL LOAN OF RS.2.00 CRORE BY THE ASSESSEE AND HIS SON ITA NOS.1910 & 1911/PUN/2014 A.Y. 2010-11 12 SH. MOHINDER T. KALANI TO M/S KCPL IS TREATED AS EXPLAINED TO THE EXTENT OF RS.1.24 CRORE. SINCE ADDITION OF RS.1.20 CRORE HAS BEEN MADE IN THE HANDS OF THE ASSESSEE ON THIS COUNT, WE ALLOW TH E BENEFIT OF TELESCOPING AND ORDER TO DELETE THE ADDITION OF RS.1 .20 CRORE. THE BALANCE AMOUNT OF AVAILABLE FUNDS TO THE EXTENT OF RS.4,42,062/- WILL BE CONSIDERED FOR TELESCOPING IN THE HA NDS OF MR. MOHINDER T. KALANI. 10. THE LD. AR DID NOT PRESS GROUND NOS. 3, 4, 5 AND 6 IN THE APPEAL, WHICH HEREBY STAND DISMISSED. 11. GROUND NO.7 OF THE APPEAL IS AGAINST LEVY OF SURCHARG E @10% ON THE AMOUNT OF TAX PAYABLE. THE LD. AR CONTENDED THAT NO SURCHARGE WAS PAYABLE FOR THE RELEVANT YEAR. THE A O IS DIRECTED TO VERIFY THE CONTENTION OF THE ASSESSEE AND THEN PROCEED A S PER LAW ACCORDINGLY. 12. NOW WE ESPOUSE ITA NO.1911/PUN/2014, BEING, THE APPEAL FILED BY SH. MOHINDER KALANI FOR THE A.Y. 2010-11. 13. THE ONLY ISSUE RAISED IN THIS APPEAL IS AGAINST THE CONF IRMATION OF ADDITION OF RS.80.00 LAKH TOWARDS LOAN ADVANCED TO M/S K CPL THROUGH THE HAND LOAN RECEIPT DATED 4.12.2009 AS DISCUSSE D ABOVE. BOTH THE SIDES AGREED THAT THE FACTS AND CIRCUMSTANCE S OF ITA NOS.1910 & 1911/PUN/2014 A.Y. 2010-11 13 THIS APPEAL ARE SIMILAR TO THOSE OF THE APPEAL IN THE CASE OF SH. MOHINDER KALANI LEGAL HEIR OF SH. TRILOKCHAND T. KALANI, FA THER OF THE INSTANT ASSESSEE. WHILE DISPOSING OFF THE ABOVE APPEA L IN ITA NO.1910/PUN/2014, WE HAVE DELETED THE ADDITION OF RS.1.2 0 CRORE BY ALLOWING THE BENEFIT OF TELESCOPING. THE AMOUNT STILL AVAILABLE FOR THE BENEFIT IS RS.4,42,065/-. WE, ERGO, ALLOW THE BENEFIT OF TELESCOPING TO THE INSTANT ASSESSEE TO THE EXTENT OF RS.4,42,065/- ON THE SAME RAISON DTRE AND SUSTAIN THE REMAINING ADDITION OF RS.75,57,935/- (RS.80 LAKH MINUS RS.4,42,065 /-). 14. IN THE RESULT, BOTH THE APPEALS ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 04 TH OCTOBER, 2019. SD/- SD/- (PARTHA SARATHI CHAUDHURY) (R.S.SYAL) JUDICIAL MEMBER VI CE PRESIDENT PUNE; DATED : 04 TH OCTOBER, 2019 ITA NOS.1910 & 1911/PUN/2014 A.Y. 2010-11 14 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE CIT(A)-1, NASHIK 4. 5. 6. THE CCIT, NASHIK , , / DR A, ITAT, PUNE; / GUARD FILE. / TRUE COPY // / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE DATE 1. DRAFT DICTATED ON 01-10-2019 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 01-10-2019 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER. *