Roshan Lal Verma, New Delhi V. DCIT, Faridabad

ITA 1934/DEL/2015

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5779 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2011-2012
• Appeal Filed On: 06-04-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MEETA SINGH
• Assessee Lawyers: SANJEEV BAJAJ
• Keywords: Search and seizure; Document seized; Corroborative evidences; Block assessment; Documents seized
• Section: 143(3); 142(1); 153A; 234B; 147; 131; 246; 148; 6; 132; 144; 139

Judgement Text

1 ITA NO. 19 34/DEL/2015 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F NEW DELHI BEFORE MS. SUCHITRA KAMBLE, JUDICI AL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTAN T MEMBER ITA NO. 1934/DEL/2015 ( ASSESSMENT YEAR: 2011-12) ROSHAN LAL VERMA A-50, EAST UTTAM NAGAR, NEAR INDIRA PARK, NEW DELHI. PAN NO. ACAPV2833Q VS DCIT CENTRAL CIRCLE II FARIDABAD. APPELLANT RESPONDENT APPELLANT/ASSESSEE BY SH.SANJEEV BAJAJ, CA RESPONDENT/REVENUE BY MS. MEETA SINGH, CIT DR ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER DATED 29.01.2015 PASSED BY THE CIT(APPEALS)-3, GURGAON FOR AY 2011-1 2. 2. THE GROUNDS OF APPEAL ARE AS UNDER: 1. THAT THE ORDER PASSED U/S 153B(1)(B) OF THE INCOME TAX ACT, 1961 IS BAD IN LAW AND AGAINST FACTS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORD ER PASSED U/S 153B(1)(B) OF THE INCOME TAX ACT, 1961 IS BAD IN LA W AS NO PROPER NOTICES WERE ISSUED/SERVED. THE ORDER PASSED IS WI THOUT JURISDICTION AND BARRED BY LIMITATION. 3. ON THE FACTS & CIRCUMSTANCES OF THE CASE, THE LD.CI T(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS. 1,07,00,000/- AGA INST THE FACTS, LAW AND EXPLANATIONS FURNISHED. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. ASSESSING OFFICER ERRED IN CHARGING INTEREST U/S 234A, 234B A ND 234C OF THE DATE OF HEARING 14.06.2018 DATE OF PRONOUNCEMENT 27.06.2018 2 ITA NO. 1934/DEL/2015 INCOME TAX ACT, 1961. 5. THE APPELLANT MAY BE PERMITTED TO ADD, ALTER OR DEL ETE THE GROUNDS OF APPEAL. 3. BY VIRTUE OF THE AUTHORIZATION OF THE DIRECTOR O F INCOME-TAX (INVESTIGATION), LUDHIANA, UNDER SECTION 132(A) IN THE CASE OF THE ASSESSEE, SATTA OPERATORS GROUP OF CASES WERE SUBJECTED TO SE ARCH AND SEIZURE OPERATIONS ON 21.06.2010. ASSESSMENT JURISDICTION OVER THE ASSESSEE WAS TRANSFERRED TO THE CIRCLE BY THE COMMISSIONER OF IN COME TAX, DELHI-IX, NEW DELHI VIDE ORDER DATED 18.11.2010 WITH IMMEDIATE EF FECT. THE SEIZED DOCUMENTS IN THE GROUP WERE RECEIVED IN THE CIRCLE 19.02.2012. IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A OF THE INCOME T AX ACT, 1961, A NOTICE DATED 28.02.2012 U/S 142(1) OF THE ACT WAS ISSUED A ND SERVED UPON THE ASSESSEE, REQUIRING HIM TO FILE RETURN OF INCOME IN RESPECT OF AY 2011-12. IN RESPONSE TO THE NOTICE, THE ASSESSEE FILED HIS RETU RN OF INCOME, DULY VERIFIED AND SIGNED AS PER THE PROVISIONS OF SECTION 140 OF THE ACT, RETURNING A TOTAL INCOME OF RS. 33,48,502/- + AGRICULTURE INCOME OF R S. 3,25,580/- ON 14.10.2011. NOTICES UNDER SECTION 142(1) OF THE AC T ALONG WITH A QUESTIONNAIRE WERE ISSUED TO THE ASSESSEE ON 28.02. 2012, WHICH WERE DULY SERVED UPON THE ASSESSEE. IN RESPONSE TO THE SAID NOTICE, AUTHORIZED REPRESENTATIVE OF THE ASSESSEE ATTENDED THE ASSESSM ENT PROCEEDINGS FROM TIME TO TIME. THE REQUISITE DETAILS AND WRITTEN SUB MISSIONS WAS FILED BY THE ASSESSEE. THE ASSESSING OFFICER REJECTED THE SUBMIS SIONS OF THE ASSESSEE MADE ADDITION OF RS. 1,07,00,000/- U/S 68 OF THE IN COME TAX ACT. 4. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASS ESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. 5. THE LD. AR SUBMITTED THAT NOTICE U/S 143(2) OF T HE ACT, WAS ISSUED ON 14.11.2012 WHICH IS BEYOND THE STIPULATED TIME AS P ER THE PROVISO OF CLAUSE (II) OF SUB-SECTION (2) OF SECTION 143 OF THE ACT. THE NOTICE SHOULD HAVE BEEN ISSUED ON OR BEFORE 30.09.2012 AS THE RETURN WAS FI LED ON 14.10.2011 U/S 139(1) OF THE ACT. THE LD. AR SUBMITTED THAT IT IS WELL SETTLED LAW THAT ISSUE OF 3 ITA NO. 1934/DEL/2015 NOTICE U/S 143(2) WITHIN STIPULATED TIME IS MANDATO RY REQUIREMENT AND IS NOT CURABLE U/S 292BB OF THE ACT. THE LD. AR FURTHER SU BMITTED THAT GROUND NOS. 1 AND 2 ARE NOT RAISED BEFORE THE CIT(A). THE LD. AR RELIED UPON THE FOLLOWING DECISIONS: I) ACIT & ANR. VS. HOTEL BLUE MOON (2010) 321 ITR 3 62 (SC) II) PR. CIT VS. PARAMOUNT BIOTECH IND. LTD. (2017) 11 TMI 127, (DEL. HC) III) DIT VS. V. R. EDUCATIONAL TRUST 2013 (12) TMI 745 (DEL. HC) IV) ALPINE ELECTRONICS ASIA PVT. LTD. VS. DGIT (201 2) 341 ITR 247 (DEL.) V) DALMIA (R) VS. CIT (1999) 236 ITR 480 (SC) VI) CIT VS. PAWAN GUPTA (2009) 318 ITR 322 (DEL) VII) DCIT VS. M/S SILVER LINE (2014) 10 TMI 141 (DE L.) VIII) CIT VS. RAJEEV SHARMA (2011) 336 ITR 678 (ALL .) IX) UKT SOFTWARE TECHNOLOGIES P. LTD. VS. ITO 2013( 1)TMI 678 (DEL. TRI.) X) CIT VS. MUKESH AGARWAL (2012) 345 ITR 29 (ALL.) XI) CIT VS. M/S PARIKALPANA ESTATE DEVELOPMENT (P) LTD. 2012(10)TMI 617 (ALL. HC) XII) CIT VS. M/S CEBON INDIA LTD. (2012) 347 ITR 58 3 (P&H) XIII) PR. CIT VS. SHRI JAI SHIV SHANKER TRADERS P. LTD. (2016) 383 ITR 448 (DEL.) XIV) CIT VS. DELHI KALYAN SAMITI 2016 (4) TMI 172 ( DEL.) AS REGARDS TO GROUND NO. 3, THE LD. AR SUBMITTED TH AT THE ASSESSING OFFICER WHILE STATING THAT STATEMENT RECORDED ON 17.06.2010 DURING THE COURSE OF SEARCH U/S 132 WHEREAS IN OPENING PARAGRAPHS OF THE ASSESSMENT ORDER STATED THAT SEARCH AND SEIZURE OPERATIONS WAS CARRI ED OUT ON 21.06.2010 BY VIRTUE OF ORDER U/S 132A OF THE ACT. THUS, THE STAT EMENT RECORDED ON 17.06.2010 WAS PRIOR TO SEARCH AND SEIZURE OPERATIO N. THE LD. AR FURTHER 4 ITA NO. 1934/DEL/2015 SUBMITTED THAT THE PROVISION OF SUB-SECTION (4) OF SECTION 132 OF THE ACT IS NOT APPLICABLE FOR SEARCH AND SEIZURE AUTHORIZED U/S 13 2A OF THE ACT. THE LD. AR SUBMITTED THAT THE STATEMENT RECORDED ON 17.06.2010 WAS RECORDED AT CIA(HQ) POLICE, LUDIANA WHEN THE ASSESSEE WAS UNDER POLICE CUSTODY. THE ASSESSEE WAS IN CUSTODY FROM 13.06.2010 TILL 19.07. 2010. THE CIT(A) HAS GIVEN THE SAID FINDING IN PARA 5 OF THE ORDER OBSER VING THAT NO CONCLUSIVE OR SUBSTANTIVE FINDINGS CAN BE DRAWN FROM SUCH STATEME NT. THE STATEMENT GIVEN ON 17.06.2010 WAS UNDER DURESS AND ALSO CANNOT BE T AKEN ON OATH NOT BEING STATEMENT U/S 132(4) OF THE ACT. THE ADDITION CANNO T BE MADE ON THE BASIS OF STATEMENT NOT TAKEN ON OATH WITHOUT ANY CORROBORATI VE MATERIAL EVIDENCES. HENCE, THE AMOUNT OF RS. 1.07 CRORE EARNED FROM SAT TA OPERATION WAS ADDED WITHOUT ANY MATERIAL CORROBORATIVE EVIDENCES. THE L D. AR FURTHER SUBMITTED THAT NO CREDENTIAL HAS BEEN GIVEN TO STATEMENT RECO RDED ON 30.08.2010 WHICH WAS GIVEN IN RESPONSE TO NOTICE U/S 131(1A) OF THE ACT. THE MATERIAL EVIDENCES OF SOURCE OF CASH OF RS. 1.07 CRORES WAS PRODUCED AT THE TIME OF ASSESSMENT PROCEEDINGS LIKE CAPITAL /DRAWING A/C OF THE ASSESSEE IN THE BOOKS OF M/S NAMAN DAIRY IN WHICH THE ASSESSEE IS P ARTNER PRODUCING THEREBY THE FOLLOWING DOCUMENTS: I) COPY OF CASH BOOK OF M/S NAMAN DAIRY FOR THE PER IOD FROM 01.04.2010 TO 12.06.2010 II) COPY OF CAPITAL A/C SHOWING WITHDRAWAL OF RS. 1 .07 CRORES FROM M/S NAMAN DAIRY III) COPIES OF DULY AUDITED BALANCE SHEET AND P& L A/C WITH AUDIT REPORT U/S 44AB OF THE ACT OF A.Y. 2010-11 TO 2011-12. IV) NO BOOKS OF A/CS WERE REJECTED BY THE INCOME T AX AUTHORITY IN CASE OF M/S NAMAN DAIRY THE LD. AR FURTHER SUBMITTED THAT THE ASSESSING OFF ICER HAS NOT MADE ANY ENQUIRY FROM HIS COUNTERPART. THE CASH BOOK COULD N OT BE PRODUCED BY THE 5 ITA NO. 1934/DEL/2015 ASSESSEE AT THE TIME OF STATEMENT ON 17.06.2010 AS THE ASSESSEE WAS IN POLICE CUSTODY. THE LD. AR RELIED UPON THE FOLLOWIN G DECISIONS: I) CIT VS. SMT. S. JAYALAKSHMI AMMAL (2017) 390 ITR 189 (MAD) II) BANSAL HIGH CARBONS (P) LTD. (2009) 223 CTR 179 (DEL) III) SANJEEV KUMAR JAIN (2009) 310 ITR 178 (P&H) IV) CIT VS. UTTAMCHAND JAIN 320 ITR 554 (BOM) V) PAUL MATHEWS 263 ITR 101 (KER) AND KADAR KHAN 30 0 ITR 157 (MAD) VI) VINOD SOLANKI VS. UOI 233 ELT 157 (SC) 6. THE LD. DR RELIED UPON THE ASSESSMENT ORDER AND THE ORDER OF THE CIT(A). 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED ALL T HE RELEVANT RECORDS. AS RELATING TO GROUND NO. 1 AND 2, IT CAN BE SEEN THAT IN THE PRESENT CASE THE NOTICE UNDER SECTION 143(2) WAS ISSUED TO THE ASSES SEE WHICH IS NOT THE MANDATORY REQUIREMENT UNDER THE PROVISIONS OF SECTI ON 153A OF THE ACT. AS PER SECTION 153A, SIMPLE NOTICE HAS TO BE GIVEN TO THE ASSESSEE. THUS, THE CONTENTION OF THE LD. AR THAT ISSUE OF NOTICE U/S 1 43(2) WITHIN STIPULATED TIME IS MANDATORY REQUIREMENT AND IS NOT CURABLE U/S 292 BB OF THE ACT DOES NOT FIND SUPPORT. THE NOTICE ISSUED TO THE ASSESSEE HAS MENTIONED SECTION 143(2) BUT THAT CAN BE TREATED AS SIMPLE NOTICE WHICH HAS TO BE GIVEN UNDER THE PROVISIONS OF SECTION 153A OF THE ACT. IN FACT, THE HONBLE DELHI HIGH COURT IN CASE OF ASHOK CHADDHA VS. ITO 337 ITR 399 AFTER CON SIDERING THE DECISION OF THE HONBLE APEX COURT IN CASE OF HOTEL BLUE MOON ( SUPRA) HELD AS UNDER: 6. IT IS AGAINST THIS ORDER OF THE TRIBUNAL THAT TH E ASSESSEE HAS PREFERRED APPEAL BEFORE US. LEARNED COUNSEL FOR THE ASSESSEE CONTENDS BEFORE US THAT TO EXAMINE OR VERIFY ANY RETURN FILED UNDER SECTION 153A, THE ISSUANCE OF NOTICE UNDER SECTION 143 (2) OF THE ACT IS A MANDAT ORY REQUIREMENT. HE SUBMITS THAT IT CANNOT BE CONSTRUED AS AN EMPTY FOR MALITY OR A PROCEDURAL DEFECT WHICH CAN BE CURED, BUT GOES TO THE ROOT OF THE MATTER AND FATAL TO THE VALIDITY OF THE ASSESSMENT. HE CONTENDS THAT THE LA W LAID DOWN BY THE HON BLE SUPREME COURT IN HOTEL BLUE MOON V. DCIT, 321 I TR 362 IS EQUALLY APPLICABLE TO THE CASES WHERE RETURN HAS BEEN FILED UNDER SECTION 153A OF 6 ITA NO. 1934/DEL/2015 THE ACT. HE ALSO RELIES UPON THE JUDGMENTS OF R. DA LMIA V. CIT, 236 ITR 480 (SC), CIT V. PAWAN GUPTA, 318 ITR 322, CIT V. LUNAR DIAMOND LTD. 281 ITR 1 (DEL), CIT V. VARDHMAN ESTATES 287 ITR 368, CIT V . BHAN TEXTILES 287 ITR 370 AND RAJ KUMAR CHAWLA V. ITO, 277 ITR (AT) 225. 7. ON THE OTHER HAND, LEARNED COUNSEL FOR THE REVEN UE ARGUES THAT THE ASSESSMENT BEING UNDER SECTION 153A, THERE IS NO RE QUIREMENT OF ISSUE OF NOTICE UNDER SECTION 143(2) OF THE ACT. HE SUBMITS THAT IN ANY CASE, THERE IS NO PRESCRIBED PROFORMA FOR ISSUING THE NOTICE. THE NOTICE IS USUALLY ISSUED IN THE PROFORMA MARKED AS 'ITNS-33'. IT IS A COMMUNICA TION BY THE AO TO THE ASSESSEE GIVING HIM THE OPPORTUNITY AS REQUIRED UND ER SECTION 143 (2). THEREFORE, ONCE THE ASSESSEE HAS BEEN PUT TO NOTICE AND GIVEN OPPORTUNITY TO ATTEND THE OFFICE, THE REQUIREMENT OF SECTION 143 ( 2) IS COMPLETE WHETHER NOTICE IS ISSUED IN PROFORMA 'ITNS-33' OR IN ANY OT HER FORMAT. IN THE PRESENT CASE, THE AO HAD COMMUNICATED HIS INTENTION TO SCRU TINIZE THE RETURN BY WAY OF TWO LETTERS AND AFFORDED OPPORTUNITY TO THE ASSE SSEE TO PRODUCE NECESSARY ACCOUNTS, DOCUMENTS OR EVIDENCE. THEREFORE, THE REQ UIREMENT, IF ANY, OF SECTION 143(2) HAS BEEN SATISFIED. 8. ADMITTEDLY, THE ASSESSEE WAS ISSUED A NOTICE UND ER SECTION 153A OF THE ACT, IN RESPONSE TO WHICH HE HAD FILED A RETURN OF INCOME. THEREAFTER, TWO DETAILED QUESTIONNAIRES WERE ISSUED TO THE ASSESSEE BEFORE THE COMPLETION OF ASSESSMENT. SECTION 153 A OF THE ACT PROVIDES PROCE DURE FOR ASSESSMENT IN CASE WHERE A SEARCH IS INITIATED OR DOCUMENTS ARE R EQUISITIONED. THE RELEVANT PORTION OF SECTION 153A IS REPRODUCED HERE UNDER: 'SECTION 153A - ASSESSMENT IN CASE OF SEARCH OR REQ UISITION [1] NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 153, IN T HE CASE OF A PERSON WHERE A SEARCH IS INITIATED UNDER SECTION 132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UNDER SECTION 132A AFTER THE 31ST DAY OF MAY, 2003, THE ASSESSING OFFICER SHALL - (A) ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FU RNISH WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, THE RETURN OF INCOM E IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE (B), IN THE PRESCRIBED3 FORM AND VERIFIED IN THE PR ESCRIBED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED 3 AND THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APPLY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139 ; .....................' 9. THERE IS NO SPECIFIC PROVISION IN THE ACT REQUIR ING THE ASSESSMENT MADE UNDER SECTION 153A TO BE AFTER ISSUE OF NOTICE UNDE R SECTION 143(2) OF THE ACT. LEARNED COUNSEL FOR THE ASSESSEE PLACES HEAVY RELIA NCE ON THE JUDGMENT OF 7 ITA NO. 1934/DEL/2015 THE HON BLE SUPREME COURT IN HOTEL BLUE MOON V. DCIT, (SUPR A) WHEREIN IT WAS HELD THAT THE WHERE AN ASSESSMENT HAS TO BE COM PLETED UNDER SECTION 143(3) READ WITH SECTION 158BC, NOTICE UNDER SECTIO N 143 (2) MUST BE ISSUED AND OMISSION TO DO SO CANNOT BE A PROCEDURAL IRREGU LARITY AND THE SAME IS NOT CURABLE. IT IS TO BE NOTED THAT THE ABOVE SAID JUDGMENT WAS IN THE CONTEXT OF SECTION 158BC. CLAUSE (B) OF SECTION 158BC EXPRE SSLY PROVIDES THAT 'THE AO SHALL PROCEED TO DETERMINE THE UNDISCLOSED INCOM E OF THE BLOCK PERIOD IN THE MANNER LAID DOWN IN SECTION 158BB AND THE PROVI SIONS OF SECTION 142, SUB SECTIONS (2) AND (3) OF SECTION 143, SECTION 14 4 AND SECTION 145SHALL, SO FAR AS MAY BE, APPLY. THIS IS NOT THE POSITION UNDE R SECTION 153A. THE LAW LAID DOWN IN HOTEL BLUE MOON, IS THUS NOT APPLICABL E TO THE FACTS OF THE PRESENT CASE. 10. THE DECISION OF LUNAR DIAMOND LTD. (SUPRA), VAR DHMAN ESTATES (SUPRA) AND BHAN TESTILES (SUPRA) RELIED UPON BY LEARNED CO UNSEL FOR THE ASSESSEE RELATED TO THE REQUIREMENT OF SERVICE OF NOTICE UPO N THE ASSESSEE WITHIN A PRESCRIBED TIME AND THUS NOT APPLICABLE TO THE PRES ENT CASE. THE CASE OF PAWAN GUPTA (SUPRA) RELATED TO MANDATORY ISSUE OF N OTICE UNDER SECTION 143(2) OF THE ACT IN THE CASE OF REGULAR ASSESSMENT AS ALSO ON BLOCK ASSESSMENT. THIS BEING NOT A CASE OF ASSESSMENT BAS ED ON SEARCH UNDER SECTION 153(A), THE SAME IS NOT APPLICABLE TO THE PRESENT CASE. IN THE CASE OF RAJ KUMAR CHAWLA (SUPRA) RELIED UPON BY LEA RNED COUNSEL FOR THE ASSESSEE WAS THAT OF THE TRIBUNAL, WHEREIN, A VIEW WAS TAKEN THAT IF A RETURN FILED UNDER SECTION 148 OF THE ACT IS SOUGHT TO BE SCRUTINIZED, THE COMPLIANCE OF PROVISION CONTAINED IN PROVISO UNDER SECTION 143(2) OF THE ACT IS MANDATORY. THE ISSUE OF REQUIREMENT OF NOTICE UN DER SECTION 143(2) FOR AN ASSESSMENT UNDER SECTION 147 CAME UP FOR CONSIDERAT ION BEFORE THIS COURT RECENTLY IN CIT V. MADHYA BHARAT ENERGY CORPN., ITA NO. 950/08 DECIDED ON 11-07-2011. IN THAT CASE ALSO, THIS COURT HAS HELD THAT IN THE ABSENCE OF ANY SPECIFIC PROVISION UNDER SECTION 147 OF THE ACT, TH E ISSUANCE OF NOTICE UNDER SECTION 143 (2) CANNOT BE HELD TO BE A MANDAT ORY REQUIREMENT. 11. IT IS ALSO TO BE NOTED THAT SECTION 153A PROVID ES FOR THE PROCEDURE FOR ASSESSMENT IN CASE OF SEARCH OR REQUISITION. SUB SE CTION (1) STARTS WITH NON- OBSTANTE CLAUSE STATING THAT IT WAS NOTWITHSTANDIN G ANYTHING CONTAINED IN SECTIONS 147, 148 AND 149, ETC. CLAUSE(A) THEREO F PROVIDES FOR ISSUANCE OF NOTICE TO THE PERSON SEARCHED UNDER SECTION 132 OR WHERE DOCUMENTS ETC ARE REQUISITIONED UNDER SECTION 132(A), TO FURNISH A RE TURN OF INCOME. THIS CLAUSE NOWHERE PRESCRIBES FOR ISSUANCE OF NOTICE UNDER SEC TION 143(2). LEARNED COUNSEL FOR THE ASSESSEE/ APPELLANT SOUGHT TO CONTE ND THAT THE WORDS, 'SO FAR AS MAY BE APPLICABLE' MADE IT MANDATORY FOR ISSUANC E OF NOTICE UNDER SECTION 143(2) SINCE THE RETURN FILED IN RESP ONSE TO NOTICE UNDER SECTION 153A WAS TO BE TREATED AS ONE UNDER S ECTION 139. LEARNED COUNSEL RELIES UPON R. DALMIA V CIT (SUPRA) WHEREIN THE QUESTION OF ISSUE OF NOTICE UNDER SECTION 143(2) WAS EXAMINED WITH REFER ENCE TO SECTION 148 BY 8 ITA NO. 1934/DEL/2015 THE SUPREME COURT IN THE CONTEXT OF SECTION 147. TH E APEX COURT HELD AS UNDER: 'AS TO THE ARGUMENT BASED UPON SECTIONS 144-A, 246 AND 263, WE DO NOT DOUBT THAT ASSESSMENTS UNDER SECTION 143 AND ASSESS MENTS AND REASSESSMENTS UNDER SECTION 147 ARE DIFFERENT, BUT IN MAKING ASSESSMENT AND RE-ASSESSMENTS UNDER SECTION 147 THE PROCEDURE LAID DOWN IN SECTIONS SUBSEQUENT TO SECTION 139, INCLUDING THAT LAID DOWN BY SECTION 144B, HAS TO BE FOLLOWED.' 12. THE CASE OF R. DALMIA V CIT (SUPRA) PRIMARILY W AS WITH REGARD TO APPLICABILITY OF SECTION 144B AND SECTION 153 (SINC E OMITTED WITH EFFECT FROM 01.04.1989) TO THE ASSESSMENT MADE UNDER SECTION 14 7 AND 148 AND THUS CANNOT BE SAID TO BE THE DECISION LAYING DOWN THE L AW REGARDING MANDATORY ISSUE OF NOTICE UNDER SECTION 143(2). 13. THE WORDS 'SO FAR AS MAY BE' IN CLAUSE (A) OF S UB SECTION (1) OF SECTION 153A COULD NOT BE INTERPRETED THAT THE ISSUE OF NOT ICE UNDER SECTION 143(2) WAS MANDATORY IN CASE OF ASSESSMENT UNDER SE CTION 153A. THE USE OF THE WORDS, 'SO FAR AS MAY BE' CANNOT BE STRETCHE D TO THE EXTENT OF MANDATORY ISSUE OF NOTICE UNDER SECTION 143(2). AS IS NOTED, A SPECIFIC NOTICE WAS REQUIRED TO BE ISSUED UNDER CLAUSE (A) OF SUB-S ECTION (1) OF SECTION 153A CALLING UPON THE PERSONS SEARCHED OR REQUISITI ONED TO FILE RETURN. THAT BEING SO, NO FURTHER NOTICE UNDER SECTION 143(2) CO ULD BE CONTEMPLATED FOR ASSESSMENT UNDER SECTION 153A. 14. NO SPECIFIC NOTICE WAS REQUIRED UNDER SECTION 1 43(2) OF THE ACT WHEN THE NOTICE IN THE PRESENT CASE AS REQUIRED UNDER SECTIO N 153 (A) (1) (A) OF THE ACT WAS ALREADY GIVEN. IN ADDITION, THE TWO QUESTIONNAI RES ISSUED TO THE ASSESSEE WERE SUFFICIENT SO AS TO GIVE NOTICE TO TH E ASSESSEE, ASKING HIM TO ATTEND THE OFFICE OF THE AO IN PERSON OR THROUGH A REPRESENTATIVE DULY AUTHORIZED IN WRITING OR PRODUCE OR CAUSE TO BE PRO DUCED AT THE GIVEN TIME ANY DOCUMENTS, ACCOUNTS, AND ANY OTHER EVIDENCE ON WHICH HE MAY RELY IN SUPPORT OF THE RETURN FILED BY HIM. 15. LEARNED COUNSEL FOR THE ASSESSEE FURTHER ASSAIL S THE ORDER OF THE TRIBUNAL AND CONTENDS THAT IT HAS ERRONEOUSLY UPHEL D THE ADDITION OF RS.10,00,000/- FOUND BY THE RAILWAY POLICE IN TH E POSSESSION OF DILBAR SINGH RAWAT DESPITE EVIDENCES BEING FILED TO DEMONS TRATE THAT THE ASSESSEE S NEPHEW HAS CLAIMED OWNERSHIP OF THE MONIES AND FI LED AN APPLICATION OF CLAIM BEFORE RAILWAY MAGISTRATE, BHO PAL. HE CONTENDS THAT THE MATTER IS SUB-JUDICE BEFORE THE RAILWAY MAGISTRATE AND IN THE ABSENCE OF ANY FINDINGS BY THE MAGISTRATE, THE FINDINGS GIVEN BY THE TRIBUNAL ARE UN- WARRANTED AND UNJUSTIFIED. 9 ITA NO. 1934/DEL/2015 16. IN THIS REGARD, LEARNED COUNSEL FOR THE REVENUE ARGUES THAT NO DOUBT AN APPLICATION DATED 23.01.2008 HAS BEEN FILED BY SHRI SUDHIR CHADHA WHEREBY HE HAS CLAIMED OWNERSHIP OF THE SEIZED MONE Y. HOWEVER, IT IS NOTED THAT THE AMOUNT WAS SEIZED ON 20.04.2003 AS S EEN FROM THE TELEGRAM SENT BY THANA PRABHARI, GRP, BHOPAL, WHEREAS THE CL AIM OF OWNERSHIP WAS MADE ON 23.01.2008, MUCH AFTER THE DATE OF SEIZURE. NO STEPS WERE TAKEN BY THE ASSESSEE OR SHRI SUDHIR CHADHA FOR ALMOST 5 YEA RS. IT WAS ONLY WHEN THE ASSESSMENT ORDER CAME TO BE PASSED ON 31.12.200 7, THAT SHRI SUDHIR CHADHA SUBMITTED A CLAIM THAT THE MONEY BELONGS TO HIM. ALSO, THERE IS NO PLAUSIBLE EXPLANATION GIVEN BY THE ASSESSEE AS TO W HY HIS EMPLOYEE WAS FOUND IN POSSESSION OF CASH. NO DETAIL HAS BEEN FIL ED ABOUT THE LAND SOUGHT TO BE PURCHASED BY HIM. IN THESE CIRCUMSTANCES, THE TRIBUNAL WAS RIGHT IN HOLDING THAT THE CLAIM MADE BY SHRI SUDHIR CHADHA I S AN AFTERTHOUGHT TO ACCOMMODATE THE ASSESSEE. HAD THE MONEY REALLY BELO NGED TO HIM, HE WOULD HAVE MADE THE CLAIM SOON AFTER ITS SEIZURE. C ONSEQUENTLY, WE ARE IN AGREEMENT WITH THE CONCURRENT FINDING OF BOTH CIT ( A) AND THE TRIBUNAL. 17. IN VIEW OF OUR ABOVE DISCUSSION, WE DECIDE BOTH THE ISSUES IN FAVOUR OF THE REVENUE AND AGAINST THE ASSESSEE. THE APPEAL IS HEREBY DISMISSED. THIS DECISION HAS ALSO CONSIDERED OTHER DECISION WH ICH WAS RELIED BY THE LD. AR NAMELY, R. DALMIA V. CIT, 236 ITR 480 (SC), CIT V. PAWAN GUPTA, 318 ITR 322. THUS, THE CONTENTION OF THE LD. AR THAT NO PRO PER NOTICES WERE ISSUED/SERVED AND THE ORDER PASSED IS WITHOUT JURIS DICTION AND BARRED BY LIMITATION DOES NOT SURVIVE. THUS, GROUND NO. 1 AND 2 ARE DIMSSIED. 8. AS REGARDS GROUND NO. 3 WHICH RELATES TO THE MER IT OF THE CASE, IT IS PERTINENT TO NOTE THAT THE CIT(A) HAS GIVEN A DETAI LED FINDING AND HELD AS UNDER: 5.3 I HAVE CONSIDERED THE ASSESSEES SUBMISSION AS WELL AS THE IMPUGNED ORDER. IT EMERGES THAT THE POLICE SEIZED R S.1,07,00,000/- FROM THE RESIDENCE OF THE ASSESSEE. THE RAID WAS ON 13.06.20 10. THIS WAS FOLLOWED BY SEARCH AND SEIZURE OPERATIONS U/S 132 AND IN HIS STATEMENT RECORDED, THE ASSESSEE HAD ADMITTED THAT THE CASH OF RS. 1,07 ,00,000/- FOUND FROM HIS POSSESSION PERTAINED PARTLY TO SATTA OPERATORS AND RS.35,00,000/- TO SHRI JASMER SINGH AND SHRI SUNIL KUMAR GUPTA. LATER ON, THE ASSESSEE CHANGED HIS STATEMENT TO STATE THAT THE CASH FOUND PERTAINED TO HIS DIARY BUSINESS AND THAT IT WAS LYING WITH HIM SINCE HE WA S SUPPOSED TO MAKE A PAYMENT ON ACCOUNT OF PURCHASE OF PROPERTY FROM SMT . BEERMATI DEVI. IT WAS 10 ITA NO. 1934/DEL/2015 SUBMITTED THAT THE PROPERTY WAS FOR RS.1.27 CRS OF WHICH RS.10,00,000/- WAS GIVEN AS ADVANCE. IT WAS ALSO STATED THAT HE HA D TO CHANGE HIS STATEMENT AS HE WAS COERCED BY THE POLICE. CASH BOO K OF NAMAN DIARY AND AFFIDAVITS OF SMT. BEERMATI DEVI, SHRI JASMER SINGH , SHRI SUNIL KUMAR GUPTA AND SHRI ROSHAN LAI VERMA WERE FILED. HOWEVER AO EM PHASISED ON THE ADMITTANCE BY THE ASSESSEE BEFORE THE POLICE AUTHOR ITIES. THE SOURCE OF CASH EXPLAINED TO BE ON ACCOUNT OF CASH SALES WAS NOT AC CEPTED IN THE ABSENCE OF SUPPORTING DOCUMENTS. THE AO ALSO OBSERVED THAT THE SAID CASH BOOK NOW BEING RELIED UPON WAS NOT PRODUCED DURING THE COURS E OF SEARCH WHEN THE STATEMENT U/S 132(4) WAS BEING RECORDED. BEFORE ME, THE ASSESSEE HAS STATED THAT HE AND HIS SON LALIT WERE REMANDED FOR 8 DAYS, AND HAS CONTENDED THAT STATEME NT RECORDED BY THE POLICE HAD NO EVIDENTIARY VALUE. THE SOURCE OF THE CASH WAS REITERATED TO BE FROM HIS DAIRY BUSINESS AND IN SUPPORT FURNISHED PA RTNERSHIP DEED OF NAMAN DAIRY, ITRS ETC. THE COPY OF PARTNERSHIP DEED IS DATED 1.4.2010, WHEREIN A REFERENCE HAS BEEN MADE TO ANOTHER PARTNE RSHIP DEED EXECUTED ON 29.10.2009 AND MUTUALLY AGREEING TO REDUCE IN WRITING THE NEW ORAL TERMS OF AGREEMENT. THE PARTNERS ARE THE ASSESSEE, HIS WIFE AND NOW HI S SON LALIT. ON THE ISSUE OF EVIDENTIARY NATURE OF STATEMENT REC ORDED BY THE POLICE, IT IS TRUE THAT IN ANY CIVIL PROCEEDINGS INCLUDING ASS ESSMENT PROCEEDINGS NO CONCLUSIVE OR SUBSTANTIVE FINDINGS CAN BE DRAWN ON THE BASIS OF SUCH STATEMENTS RECORDED BY THE POLICE. HOWEVER UNDER TH E PROVISIONS OF CR.P.C. THE PERSONS ARE NONETHELESS BOUND TO ANSWER TRULY A LL QUESTIONS RELATING TO THE ISSUE BEING PUT TO HIM BY THE POLICE. IN THE CASE AT HAND, THE PUNJAB POLICE LUDHIANA RA IDED THE RESIDENCE OF THE ASSESSEE ON13.6.2010 AND SEIZED CASH OF RS.1,0 7,00,000/-. THE ASSESSEE AND HIS SON LALIT ADMITTEDLY WERE TAKEN IN TO POLICE CUSTODY. THE ASSESSEE HAS ALLEGED POLICE TORTURE AND THAT THE ST ATEMENT DATED 17.6.2010 HAD BEEN OBTAINED FORCEFULLY. HOWEVER INKLING OF AN Y POLICE TORTURE HAS NOT BEEN BROUGHT OUT. THE COPY OF COURT ORDER DATED 21. 7.2010 (PB PAGE 09), RATHER ILLEGIBLE, IS TITLED STATE VS. AMAR NATH ETC . FROM WHICH IT APPEARS THAT THE ACCUSED WAS FURTHER REMANDED TO JUDICIAL CUSTOD Y, TO BE PRODUCED ON 05.7.2010 AND SO ON. IN THE STATEMENT DATED 17.6.20 10 (PB-PAGE 06-08) WHICH WAS AFTER 4 DAYS OF REMAND, THE ASSESSEE CLEA RLY ADMITTED TO DOING SATTA BUSINESS AFTER 2004-05, AND EVEN THE MODUS OP ERANDI WAS EXPLAINED VIZ. BUSINESS CONDUCTED BY PHONE AS WELL AS THE MAN NER OF COLLECTING/PAYMENTS. THE ASSESSEE IN RESPONSE TO FU RTHER QUERY ALSO ADMITTED TO HAVING EARNED ABOUT RS.3 CRORES IN THE LAST 3-4 YEARS FROM SATTA 11 ITA NO. 1934/DEL/2015 WHICH HE INVESTED IN DAIRY AND IN THE BUSINESSES OF HIS TWO SONS. SIGNIFICANTLY, HE ALSO STATED THAT THE SATTA BUSINE SS WAS NOT SHOWN IN HIS INCOME TAX RETURN. IN OTHER WORDS, THE SOURCE OF TH E CASH OF RS. 1.07 CRORES CLEARLY CAME FROM SATTA BUSINESS. NOW IF ONE PERUSES THE STATEMENT DATED 30.8.2010 (C OPY PLACED IN PB PAGE 10- 13), THE ASSESSEE CLAIMS HIS BUSINESS COMP RISED OF DAIRY [SINCE LAST TWO YEARS] AND PROPERTY BUSINESS. THIS IS A CO MPLETE VOLTE-FACE. IN RESPONSE TO Q.8, HE MAINTAINS THAT HIS ADMITTANCE T O INVOLVEMENT TO SATTA BUSINESS WAS UNDER POLICE PRESSURE, WHILE AT THE SA ME TIME HE CONCEDES THAT THERE WAS NO POLICEMAN PRESENT AT THE TIME OF RECORDING OF THE STATEMENT ON 17.6.2010 AND THERE WAS NO PRESSURE FR OM THE INCOME TAX DEPARTMENT.... THE ASSESSEE GOES ON TO EXPLAIN THAT THE CASH OF RS.1.07 CRORES WAS FROM SALE PROCEEDS OF MILK OF ABOUT TWO AND A HALF MONTHS, SOLD THROUGH RETAIL. NOW FROM THE AFORESAID DISCUSSION, IT IS RATHER EVI DENT THAT THE ASSESSEE IS WELL VERSED WITH THE NITTY-GRITTY OF SATTA BUSIN ESS. THE INCOMINGS OF THE SATTA BUSINESS WERE ADMITTEDLY INVESTED IN ASSESSEE 'S BUSINESS. IT IS NOBODY'S CASE THAT ASSESSEE IS NOT RUNNING A DAIRY FARM. THE ISSUE FOR CONSIDERATION IS ABOUT THE SOURCE OF THE CASH SEIZE D FROM THE RESIDENCE AND WHETHER ASSESSEE CAN BE SAID TO HAVE COGENTLY EXPLA INED HIS CASE THAT HE WAS NOT INVOLVED IN SATTA BUSINESS. IF HE WAS NOT P ART OF THE SATTA GROUP OF OPERATORS THEN ON WHAT GROUND WAS HIS RESIDENCE RAI DED BY THE POLICE AND WHY THE NEED FOR ELONGATED JUDICIAL CUSTODY. UNDER SUCH CIRCUMSTANCES AS DISCUSSED ABOVE, I AM O F THE CONSIDERED OPINION THAT ASSESSEE HAS NOT BEEN ABLE TO SATISFAC TORILY EXPLAIN HIS POSITION AND CONSEQUENTLY, THE ADDITION OF RS.1,07,00,000/- MADE BY THE AO IS CONFIRMED. ASSESSEE FAILS ON THESE GROUNDS OF APPEA L. FROM THE PERUSAL OF RECORDS IT CAN BE SEEN THAT SAL E PROCEEDS FOR TWO AND HALF MONTHS ARE EXORBITANT AND THE ASSESSEE COULD NOT DE MONSTRATE AS TO HAVE THE SALE PROCEEDS HAVE BEEN MORE IN THESE TWO MONTHS. W E ALSO GIVE OUR REASON FOR UPHOLDING THE ACTION OF THE ASSESSING OFFICER I N MAKING AN ADDITION OF RS. 1.07 CRORES ON ACCOUNT OF CASH FOUND DURING THE COU RSE OF SEARCH FROM THE RESIDENCE OF THE ASSESSEE AS FOLLOWS: 12 ITA NO. 1934/DEL/2015 01. THE ASSESSEE HAS CONFESSED IN STATEMENT DATED 17.06 .2010 THAT HE IS CARRYING SATTA ACTIVITIES AND THE CASH FOUND F ROM HIS RESIDENCE IS PERTAINING TO THAT ACTIVITY. IN ANSWER TO QUESTI ON NO. 1, HE HAS CATEGORICALLY AND EMPHATICALLY CONFESSED THE ABOVE FACT. FURTHER, HE HAS ALSO EXPLAINED THE MODUS OPERANDI THAT OF THAT BUSINESS STATING THAT IT WAS CARRIED ON PHONE AND THE PAYME NTS ARE COLLECTED BY THE MUNIMS FROM BOOKIES OR BY HIMSELF ALSO, IF R EQUIRED. IN QUESTION NO. 2, HE SUBMITTED THAT HE IS EARNING MON EY FROM SATTA BUSINESS BUT IS NOT SHOWN IN THE INCOME TAX RETURN. IN ANSWER TO Q NO. 7 WHEREIN HE WAS ASKED TO EXPLAIN THE CASH FOUN D OF RS. 1.07 CRORES ON 13.06.2010 FROM HIS RESIDENCE, HE SUBMITT ED THAT RS. 36 LACS ARE FORM TWO PARTIES AND HE DOES NOT KNOW THE NAME OF ONE OF THEM AND FURTHER SUM IS UNACCOUNTED EARNING FROM S ATTA BUSINESS. ON READING OF HIS STATEMENT, IT IS APPAR ENT THAT HE HAS GIVEN THE MINUTEST DETAIL OF THE SOURCE OF THE MONE Y FOUND DURING THE COURSE OF SEARCH. HE DID NOT RETRACT THIS STATE MENT SUBSEQUENTLY. ON 30.08.2010, IN HIS STATEMENT U/S 1 31 OF THE ACT, HE CHANGED HIS VERSION AND STATED THAT HE IS NOT CA RRYING ON ANY SATA BUSINESS AND THE MONEY IS FROM A PARTNERSHIP FIRM, WHICH IS CARRYING ON DAIRY BUSINESS. HOWEVER, HE DID NOT PRO DUCE ANY EVIDENCE THEN ABOUT THIS VERSION. ASSESSEE WAS FIRS T RAIDED ON 26.05.2010, HIS FIRST STATEMENT WAS RECORDED ON 17. 06.2010, AND HE WAS IN POLICE CUSTODY FROM 13.06.2010 TO 19.07.2010 . THAT MEANS HE WAS FREE IMMEDIATELY AFTER MAKING A STATEMENT ON 17.06.2010 BUT HE DID NOT RETRACT STATEMENT DATED 17/6/2010 BU T CHANGED HIS VERSION ONLY ON 30.08.2010. THE INORDINATE TIME LAG FROM 19/6/2011 TO 30.8.2011 IN NOT RETRACTING THE STATEM ENT, THE ABSENCE OF ANY EVIDENCE SUCH AS CASH BOOKS, AUDITE D ACCOUNTS OF EARLIER YEARS ETC. OF CHANGED VERSION ON 30.8.20 11, NON ALLEGATION OF ANY COERCIVE ACTION OR THREAT BY INCOME TAX DEPA RTMENT ON 17/6/2010, ALL SUCH CIRCUMSTANTIAL FACTS GOES AGAI NST ASSESSEE. 13 ITA NO. 1934/DEL/2015 THEREFORE, THE LOWER AUTHORITIES DID CORRECTLY AS N OT TO BELIEVE THE STATEMENT MADE BY THE ASSESSEE ON 30.8.2011. 02. THE ASSESSEE HAS SHOWN SOURCE OF THE ABOVE SUM OF RS. 1.07 CRORES AS CASH WITHDRAWN BY HIM FROM M/S. NAMAN DAIRY. A P ARTNERSHIP FIRM, WHEREIN, HE IS A PARTNER. NOW TO VERIFY THE V ERACITY OF THE MONEY WITHDRAWN FROM M/S. NAMAN DAIRY IT IS IMPORTA NT TO LOOK AT THE BALANCE SHEET OF THAT FIRM AS ON 31.03.2010 A ND 31.03.2011. IT IS INTERESTING TO NOTE AS ON 01.04.2010 THE SUNDRY CREDITORS IN THE BOOKS OF THE ASSESSEE WERE OF RS. 36.25 LACS WHEREA S, AS ON 31.03.2011 IT REACHED RS. 62.10 LACS. THAT MAY BE B ECAUSE OF THE INCREASED OPERATION THE BUSINESS. HOWEVER STARTLING FACTS HAVE COME TO THE NOTICE THAT ON 31.03.2010 THERE WAS NO ADVAN CE FROM THE CUSTOMERS WHEREAS ON 31.03.2011 SUDDENLY THE ADVANC E FROM THE CUSTOMERS HAVE GONE TO RS. 1,35,40,000/- AND SUDDEN LY AS ON 31.03.2012 THESE ADVANCES FROM CUSTOMERS HAVE COME DOWN TO RS. 15.40 LACS. THIS IS THE UNUSUAL TRANSACTION IN THE DAIRY BUSINESS WHERE THE ASSESSEE HAS COLLECTED THREE MONTHS SALE S AS ADVANCE AGAINST SALE AS DEPOSIT FROM CUSTOMERS. 03. THERE IS NO SUBSTANTIAL INCREASE IN THE PROFITS OF THE ASSESSEE TO JUSTIFY SUCH A HUGE WITHDRAWAL MADE BY THE ASSESSEE FORM THAT FIRM. 04. NOW COMING TO THE EXPLANATION THAT WHY THE ASSESSE E HAS WITHDRAWN THE SUM FROM THE PARTNERSHIP FIRM AND KEP T AT HOME. THE ASSESSEE HAS EXPLAINED THAT HE HAS WITHDRAWN IN CASH RS. 50 LACS ON 16.04.2010 AND DEPOSITED THE SAME ON 17.05. 2010 WITH THE FIRM BACK IN CASH. THERE IS NO EXPLANATION WHY ASSSESSEE HAS WITHDRAWN SUCH A HUGE SUM AND DEPOSITED THE SAME WITHIN THIRTY DAYS. WHY THE SUM WAS KEPT FOR SUCH A LONG TIME. WH ETHER IT WAS GIVEN TO ANYBODY ETC. ALL THESE QUESTIONS REMAINED UNANSWERED. FURTHER HE WITHDREW ON 31.05.2010 IN CASH RS. 50 LACS AND ONCE AGAIN ON 11.06.2010 IN CASH RS. 57 LACS FROM THE FI RM. THEREFORE, FROM THESE ACCOUNTS, ASSESSEE TRIED TO SHOW THAT RS . 1.07 LACS 14 ITA NO. 1934/DEL/2015 FOUND FROM THE RESIDENCE WAS THIS SUM WITHDRAWN FRO M THE FIRM. TO SHOW THE CASH IN HAND THE ASSESSEE HAS FURNISHED TH E CASHBOOK FROM 01.04.2010 TO 12.06.2010. THE ASSESSEE HAS SHO WN THAT IT HAS OPENING CASH IN HAND ON 01.04.2010 OF RS. 4034843/- AND SUBSEQUENTLY, THE ASSESSEE HAS SHOWN THE HUGE SALE OF MILK OF RS. 1.75 LACS PER DAY. IT IS IMPORTANT TO NOTE THAT THE RETURN OF INCOME FOR ASSESSMENT YEAR 2010-11 IN WHICH THE OPENING BA LANCE WAS SHOWN TO BE RS. 40.34 LACS WAS ALSO FILED AFTER THE DATE OF SEARCH I.E. 27.09.2010. FURTHER IT IS INTERESTING TO NOTE THAT IN THE MONTH OF APRIL ON 05.04.2010 THE ASSESSEE HAS DEBITED IN CAS H STAFF SALARY OF RS. 2.70 LACS WHEREAS, LABOUR CHARGES OF RS. 6.35 L ACS AFTER THAT UP TO JUNE WE COULD NOT FIND ANY SUCH ENTRY OF STAFF S ALARY PAYABLE IN CASH BY THE ASSESSEE. 05. THE ORDERS OF THE ASSESSMENT PASSED IN CASE OF M/S . NAMAN DAIRY BY THE ASSESSING OFFICER IN THAT FIRM U/S 143(3) OF THE ACT WITHOUT DISTURBING MUCH INCOME OFFERED BY THE FIRM DOES NOT COME TO RESCUE OF THE FIRM. WE ARE CONCERNED HERE WITH THE ASSES SMENT OF THE ASSESSEE WHERE IN CASH OF RS 1.07 CR WAS FOUND. 06. FURTHER, THE ASSESSING OFFICER HAS GIVEN REASON THA T THE SALE OF MILK SHOWN BY THE FIRM IN M/S. NAMAN DAIRY HAS NOT BEEN SUBSTANTIATED. NO SUCH EVIDENCES WERE ALSO PRODUCED BEFORE THE CIT(A) OR BEFORE US. 07. THERE IS NO EXPLANATION GIVEN BY THE ASSESSEE FOR U NUSUAL WITHDRAWAL OF RS. 50 LACS IN CASH FROM THE FIRM AND THEN AFTER RE DEPOSITING IN SHORT TIME. ALL THESE FACTS DO NOT INSPIRE ANY CONFIDENCE IN TH E EXPLANATION OF THE ASSESSEE THAT SUM OF RS. 1.07 CRORES FOUND FROM THE RESIDENC E OF THE ASSESSEE AT THE TIME OF SEARCH BY POLICE ALLEGING HIM TO BE A SATTA OPERATOR IS MONEY WITHDRAWN FROM HIS DAIRY BUSINESS OF M/S. NAMAN DAI RY WHEREIN HE IS A 15 ITA NO. 1934/DEL/2015 PARTNER. THUS, THERE IS NO NEED TO INTERFERE WITH T HE FINDINGS OF THE CIT(A). GROUND NO. 3 IS DISMISSED. 9. IN RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27.06.2018 SD/- SD/- (PRASHANT MAHARISHI) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 27.06.2018 *KAVITA ARORA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI 16 ITA NO. 1934/DEL/2015 DATE OF DICTATION 25.6.18 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 25.6.18 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS 27.6.18 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 27.6.18 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 27.6.18 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 27/28.6.18 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 27/2 8.6.18 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER