The ACIT, 3(1), Indore V. M/s Wested Management Technologies Ltd., Indore

ITA 234/IND/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1525 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 08-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KHALIL USMANI
• Assessee Lawyers: MRIDULA BAJPAI
• Keywords: Unexplained cash credit; Income from undisclosed sources; Loose papers; Document seized; Principle of natural justice; Accommodation entries; Documents seized
• Section: 142(1); 133A; 68; 69; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL , INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, J.M. AND SHRI R.C.SHARM A, A.M. PAN NO. : AAACW1623N I.T.A.NO. 224/IND/2011 A.Y. : 2002 - 03 WEST END MANAGEMENT TECHNOLOGIES PRIVATE LIMITED, VS. ACIT, 3(1), INDORE. INDORE. APPELLANT RESPONDENT I.T.A.NO. 234/IND/2011 A.Y. : 2007 - 08 ACIT, 3(1), INDORE VS. WEST END MANAGEMENT TECHNOLOGIES PRIVATE LIMITED, INDORE. APPELLANT RESPONDENT APPELLANT BY : SHRI KHALIL USMANI, ADV. RESPONDENT BY : SMT. MRIDULA BAJPAI, CIT DR DATE OF HEARING : 23 . 01 .201 3 DATE OF PRONOUNCEMENT : 29 . 01 .201 3 O R D E R -: 2: - 2 PER R. C. SHARMA, A.M. THESE ARE CROSS APPEALS FILED BY THE ASSESSEE AND REVENUE AGAINST THE ORDER OF CIT(A) DATED 30 TH JUNE, 2011, IN THE MATTER OF ORDER PASSED U/S 144/147 OF THE INCOM E-TAX ACT, 1961. 2. AFTER GOING THROUGH THE ORDERS OF THE AUTHORITIES B ELOW, WE FOUND THAT EXACTLY SIMILAR ISSUES WERE DECIDED B Y THE TRIBUNAL IN THE CASE OF OTHER ASSESSEES OF THE SAME GROUP VIDE ORDER DATED 31 ST JANUARY, 2012, WHEREIN THE FACTS AND CIRCUMSTANCES WERE PARI MATERIA. THE COPY OF THE OR DER HAS BEEN PLACED ON RECORD BY THE LD. AUTHORIZED REPRESE NTATIVE. 3. WE HAD GONE THROUGH THE ORDER OF THE COORDINATE BENCH DATED 31.12.2012, WHEREIN THE OBSERVATIONS AN D CONCLUSIONS WERE RECORDED FROM PAGES 33 TO 82 AND T HE SAME READS AS UNDER :- 2. FACTS, IN BRIEF, ARE THAT A SURVEY U/S 133A WAS CONDUCTED AT THE BUSINESS PREMISES OF LUNKAD GROUP OF COMPANIES ON 2.5.2006. THESE COMPANIES, NAMELY, M/S LUNKAD -: 3: - 3 SECURITIES LIMITED, LUNKAD MEDIA AND ENTERTAINMENT LIMITED, WEST END MANAGEMENT TECHNOLOGIES (P) LTD., M/S PARKSONS SECURITIES LTD. ARE SITUATED AT 13, RACE COURSE ROAD, INDORE. ALL THESE COMPANIES ARE BEING RUN BY MR. VIJAY LUNKAD & HIS SONS MR. SANJEEV LUNKAD AND MR. RITESH LUNKAD. OTHER THAN THESE, FAMILY MEMBERS, NAMELY, SARLA LUNKAD, SNEHA LUNKAD, RACHNA LUNKAD AND STAFF MEMBERS, NAMELY, RAJESH PATEL AND MR. GHANSYMA JAGTAP WERE ALSO FOUND TO BE INVOLVED AS DIRECTORS. ON THE BASIS OF INCRIMINATING DOCUMENTS FOUND DURING SURVEY, THE ASSESSING OFFICER REOPENED ASSESSMENT IN ALL THE YEARS, UNDER CONSIDERATION EXCEPT FOR THE ASSESSMENT YEAR 2007-08, BY ISSUING NOTICE U/S 148 OF THE ACT. -: 4: - 4 3. IN THE ORDER FRAMED U/S 144/147 THE ASSESSING OFFICER STATED THAT MR. VIJAY LUNKAD, SANJEEV LUNKAD AND RITESH LUNKAD FLOATED SEVERAL COMPANIES AND ASSOCIATED THEMSELVES, THEIR FAMILY AND STAFF MEMBERS AS DIRECTORS. THROUGH THESE COMPANIES THEY STARTED THE ALLEGED BUSINESS OF PROVIDING ENTRIES OF UNSECURED LOAN, SHARE APPLICATION MONEY, INVESTMENT IN REAL ESTATE FOR NEEDY PERSONS WHO ARE ACTUAL BENEFICIARIES. THESE PERSONS USED TO GIVE CASH EITHER DIRECTLY TO LUNKAD OR THROUGH MEDIATORS. THE AMOUNT OF CASH SO RECEIVED WERE DEPOSITED IN VARIOUS BANK ACCOUNTS OPENED IN THE NAME OF THESE COMPANIES. THE ASSESSING OFFICER FURTHER OBSERVED THAT AFTER BEING ROUTED THROUGH ONE OR MORE BANK ACCOUNTS OF THESE COMPANIES THROUGH CHEQUES, -: 5: - 5 THESE SUMS WERE FINALLY CLEARED IN THE BANK ACCOUNTS OF BENEFICIARIES. LUNKADS USED TO CHARGE COMMISSION ON ACCOUNT OF THESE ENTRIES RANGING FROM 2% TO 4% IN CASH FROM THE BENEFICIARIES. AFTER THE NEED OF THE BENEFICIARIES FOR THE ENTRY WAS OVER, THE REVERSE PROCESS STARTED. LUNKADS EITHER USED TO WITHDRAW CASH FROM THE BANK FOR THE CHEQUES RECEIVED FROM THE BENEFICIARIES OR PAID CASH OUT OF CASH RECEIVED FROM OTHER BENEFICIARIES. 4. THE ASSESSING OFFICER ALSO OBSERVED THAT ON 21.12.2009 THE ASSESSEE HAD FURNISHED ITS SUBMISSION . THE ASSESSEE HAD FURNISHED ITS REPLY BY TWO SUBMISSIONS. IT WAS ALSO NOTICED THAT THE CONTENTS OF BOTH THE SUBMISSIONS WERE ALMOST THE SAME. THE ASSESSMENT PROCEEDINGS FOR THE ASSESSMENT YEAR 2007-08 WERE ALSO IN -: 6: - 6 PROGRESS AND NOTICES U/S 142(1) OF THE I.T. ACT WERE ALSO ISSUED BY THE ASSESSING OFFICER IN THE ASSESSEES CASE FOR THE ASSESSMENT YEAR 2007- 08. HOWEVER, IN THE REPLY MADE BY THE ASSESSEE IT HAD NOT MENTIONED THE ASSESSMENT YEAR FOR WHICH THE SUBMISSION WAS MADE BY IT. HOWEVER, TAKING INTO ACCOUNT OF THE FACT THAT THE CONTENTS OF THE SUBMISSIONS WERE ALMOST THE SAME IN BOTH THE LETTERS, IT IS PRESUMED THAT THE ASSESSEE HAD CONTENDED THE ARGUMENTS MENTIONED IN THE LETTER FOR THE ASSESSMENT YEAR 2002-03. 5. THE ASSESSING OFFICER NOTICED THAT A CAREFUL PERUSAL OF THE LETTER HAS REVEALED THAT THE ASSESSEE INSTEAD OF FURNISHING OF THE DETAILS AS CALLED FOR, ALLEGED THAT THE COPY OF BOOKS OF ACCOUNTS/DOCUMENTS IMPOUNDED DURING THE -: 7: - 7 COURSE OF SURVEY CARRIED OUT AT ITS PREMISES ON 2.5.2006 WERE NOT PROVIDED TO IT DESPITE THE DIRECTIONS OF THE HONBLE HIGH COURT OF MADHYA PRADESH. THE ASSESSEE HAD ALSO FURNISHED THE PHOTOCOPY OF THE HONBLE HIGH COURT OF MADHYA PRADESHS ORDER DATED 11.11.2006 AND 30.10.2007. THE ASSESSEE FURTHER CLAIMED THAT IN VIEW OF THIS, THE NOTICES WERE NOT COMPLIED WITH. THE RELEVANT EXTRACT OF ONE OF THE LETTERS WAS REPRODUCED BY THE ASSESSING OFFICER AS UNDER :- PLEASE REFER TO YOUR NOTICE ACIT 3(1)/IND/142(1)/09-10 DATED 14.12.2009 FOR A.Y. 2002-03 WE HAVE TO SUBMIT AS UNDER :- 1. FIRST OF ALL WE WISH TO INFORM THAT THE ADDRESS OF THE COMPANY HAS CHANGED TO 202, 39 WARE HOUSE ROAD, INDORE 452 001 2. SURVEY/SEARCH PROCEEDINGS WERE CONDUCTED ON 2.5.2006 WHEREIN BOOKS OF ACCOUNTS AND OTHER DOCUMENTS/RECORDS OF THE COMPANY WERE IMPOUNDED. -: 8: - 8 3. WE HAVE CHALLENGED THE VALIDITY OF THESE SURVEY/SEARCH PROCEEDINGS BEFORE THE HONBLE M.P. HIGH COURT BY WAY OF WRIT PETITION NO. 4554 OF 2006 AND THE SAME HAS BEEN ADMITTED FOR HEARING. THUS, THE MATTER IS SUB- JUDICE. 4. THE HONBLE M.P.HIGH COURT VIDE ORDER DATED 11.11.2006 AND 30.10.2007 HAD ASKED THE DEPARTMENT TO SUPPLY CERTIFIED PHOTOSTAT COPIES OF THE BOOKS OF ACCOUNTS AND THE OTHER RECORDS/DOCUMENTS SEIZED. ONLY CERTIFIED COPIES OF LOOSE PAPERS WERE SUPPLIED TO US. 5. THE PHOTOSTAT COPIES OF THE BOOKS OF ACCOUNTS SEIZED HAVE NOT BEEN SUPPLIED TILL DATE IN SPITE OF THE SPECIFIC DIRECTIONS OF THE HONBLE HIGH COURT AND IN ABSENCE OF WHICH WE ARE NOT IN A POSITION TO FILE THE INCOME TAX RETURN AND REPLY TO THE QUESTIONNAIRE ISSUED. THE ORDER CLEARLY STATES THAT THE MATTER BE PROCEEDED WITH ONLY AFTER THE SUPPLY OF THE RELEVANT BOOKS OF ACCOUNTS. A PHOTOCOPY OF THE SAID ORDER IS ENCLOSED HEREWITH. IT IS ONCE AGAIN REQUESTED THAT A CERTIFIED COPY OF THE BOOKS OF ACCOUNTS BE SUPPLIED THE COPYING CHARGES HAVE ALREADY BEEN PAID BY US, SO THAT ASSESSMENT PROCEEDINGS CAN BE COMPLIED WITH. -: 9: - 9 AFTER CONSIDERING THE ASSESSEES REPLY, THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAS NOT FURNISHED THE RELEVANT DETAILS ASKED FOR WITH RESPECT TO SHARE CAPITAL/SHARE APPLICATION MONEY CREDITED AND SHOWN IN BALANCE SHEET NOR ANY REPLY WAS FILED WITH REGARD TO ENTRIES RECORDED IN THE INCRIMINATING DOCUMENTS FOUND DURING THE COURSE OF SURVEY. AS NOTHING WAS FURNISHING TO SUBSTANTIATE THE IDENTITY OF SHARE APPLICANTS EVEN AFTER GIVING SEVERAL OPPORTUNITIES, THE ASSESSING OFFICER ADDED THE ENTIRE AMOUNT OF SHARE CAPITAL/SHARE APPLICATION MONEY IS THE ASSESSEES INCOME. ADDITION WAS MADE IN THE ASSESSMENT YEAR 2007-08 ON THE BASIS OF ENTRIES IN THE LOOSE SHEETS FOUND DURING SURVEY. THE ASSESSING OFFICER ALSO MADE ADDITION ON ACCOUNT OF -: 10: - 10 COMMISSION ALLEGED TO BE EARNED BY THE ASSESSEE AND ALSO DISALLOWED PART OF THE EXPENSES CLAIMED BY THE ASSESSEE . BY THE IMPUGNED ORDER, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) CONFIRMED THE ACTION OF THE ASSESSING OFFICER WITH REGARD TO SHARE CAPITAL AND ENTRIES ON INCRIMINATING DOCUMENTS, BUT GAVE PART RELIEF WITH REGARD TO OTHER ADDITION/DISALLOWANCE MADE BY THE ASSESSING OFFICER. BOTH THE ASSESSEE AND REVENUE ARE IN APPEAL BEFORE US AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS). 6. DURING THE COURSE OF HEARING BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE FILED WRITTEN SUBMISSIONS WHICH READ AS UNDER :- -: 11: - 11 1. THIS APPEAL WAS FIXED FOR HEARING ON 23.01.2012 AND IT HAS BEEN ADJOURNED TO 30.01.2012. 2. THE APPELLANT HAS ON 23.01.2012 & BEFORE SUBMITTED AN APPLICATION, THE AVERMENTS MADE THEREIN ARE NOT REPEATED HEREIN, BUT THE APPELLANT CRAVES LEAVE TO REFER TO AND RELY UPON THE SAME AND REQUEST THIS HON'BLE TRIBUNAL TO READ THE SAID APPLICATION AS THE SUBMISSION OF THE APPELLANT. 3. AS SUBMITTED EARLIER, THE APPELLANT HAS NOT RECEIVED THE BOOKS OF ACCOUNTS FOR THE YEAR ENDING 31.03.2001, 31.03.2002, 31.03.2003, 31.03.2004, 31.03.2005 AND 31.03.2006, BUT UNDER THE DIRECTIONS OF THE HON'BLE TRIBUNAL, A BUNCH OF PHOTOCOPIES OF DOCUMENTS HAVE BEEN SUPPLIED ON 16.01.2012 TO THE APPELLANT. ON GOING THROUGH THE DOCUMENTS, THE APPELLANT FINDS THAT SEVERAL OF THEM DO NOT BELONG TO THE APPELLANT, BUT DOCUMENTS OF SOME OTHER COMPANIES. 4. THIS HON'BLE TRIBUNAL SHALL APPRECIATE THAT WITHOUT ANY DOCUMENTS, (BECAUSE ALL DOCUMENTS WERE UNDER SEIZURE OF THE DEPARTMENT) AND WITHOUT THE BOOKS OF ACCOUNTS, THE ASSESSING OFFICER PROCEEDED TO ASSESS THE APPELLANT. THE APPELLANT WAS HELPLESS, BUT HAS TO FACE THE ASSESSMENT WITHOUT BOOKS AND PAPERS. THE SITUATION DID NOT CHANGE BEFORE THE COMMISSIONER OF APPEALS. EVEN BEFORE THE COMMISSIONER, A REQUEST WAS MADE FOR COPIES AND HAS ADJOURNED THE MATTER, BUT THE APPEAL WAS DISPOSED OFF WITHOUT ACCORDING AN OPPORTUNITY TO THE APPELLANT TO PRODUCE RELEVANT DOCUMENTS. -: 12: - 12 5. NOW FOR THE FIRST TIME, SOME OF THE DOCUMENTS HAVE BEEN PROVIDED TO THE APPELLANT. IT MAY BE NOTED THAT ON 2 ND AND 3 RD MAY 2006, SEVERAL OFFICERS OF THE DEPARTMENT HAD ENTERED THE PREMISES OF THE APPELLANT AND THE RESIDENCE OF THE DIRECTORS. THE OFFICERS NOT ONLY CONDUCTED WHAT WAS CALLED AS A SURVEY, BUT ACTUALLY CONDUCTED A SEARCH. FROM THE VERY BEGINNING, THE APPELLANT HAS BEEN SUBMITTING THAT THE OPERATION WAS A SEARCH AND NOT A SURVEY. THE FACT THAT ONE OF THE SENIOR OFFICERS NAMELY SHRI HARESHWAR SHARMA WAS NOT EVEN AUTHORIZED, BUT HAD ENTERED THE PREMISES AND CONDUCTED THE SEARCH. THIS AUTHORIZED OFFICERS PRESENCE WAS ADMITTED BY THE DEPARTMENT IN THE REPLY FILED IN WP NO. 4554/2006 IN PARAGRAPH 5.10. THE OPERATION WAS NOT A SURVEY, BUT A SEARCH HAS BEEN ULTIMATELY ADMITTED BY THE DEPARTMENT IN THE LETTER DATED 21.12.2011. 6. THE ORDER OF IMPOUNDING DOES NOT GIVE ANY DETAILS OF THE PAPERS AND BOOKS OF ACCOUNTS ILLEGALLY IMPOUNDED BY THE RESPONDENTS. APART FROM THE DOCUMENTS SHOWN TO HAVE BEEN IMPOUNDED IN THE ORDER THE OFFICERS OF THE RESPONDENTS HAVE FORCIBLY AND UNLAWFULLY SEIZED OTHER DOCUMENTS, PAPERS AND BOOKS OF ACCOUNTS WITHOUT BOTHERING TO FURNISH AN OFFICIAL RECEIPT / ACKNOWLEDGEMENT FOR THE SAME. THAT SHRI VIJAY LUNKAD LODGED A REPORT ABOUT THIS ILLEGAL ACT TO POLICE STATION, TUKOGANJ, INDORE AND THE COPY OF THE SAID REPORT IS FILED HEREWITH. 7. THAT APART FROM THE DOCUMENTS, FOR WHICH A PANCHNAMA WAS MADE ON 2/3 RD MAY 2006. SEVERAL DOCUMENTS -: 13: - 13 PERTAINING TO THE APPELLANT AND DIFFERENT OTHER COMPANIES AND INDIVIDUALS WERE FORCIBLY CARRIED AWAY BY THE DEPARTMENT OFFICIALS WITHOUT GIVING ANY RECEIPT, OR DRAWING ANY PANCHNAMA. THIS HAS BEEN RAISED IN WP NO. 4554/2006. IN FACT, A REPORT WAS MADE, WITHOUT DELAY TO THE POLICE ON 10.05.2006 COMPLAINING THE ACTION OF THE OFFICERS. THIS HON'BLE TRIBUNAL MAY KINDLY BE NOTED THAT WAY BACK IN THE YEAR 2006 ITSELF SHRI LUNKAD HAD COMPLAINED THAT AN ILLEGAL SEARCH HAD BEEN CONDUCTED, AND THE DOCUMENTS INCLUDING BOOKS OF ACCOUNTS HAVE BEEN TAKEN AWAY ILLEGALLY. THIS STANDS PROOF FROM THE FACT THAT THE PANCHNAMA THAT WAS DRAWN AT THE TIME OF THE SEARCH CONTAIN FEW DOCUMENTS, BUT WHEN COPIES WERE DELIVERED THE NEW OFFICER HAS DELIVERED MORE THAN 5615 COPIES, WAS IT MAGIC ? THE PHOTOCOPY MACHINE WAS PROVIDED BY PARKSONS SECURITIES LTD. AND THE PHOTOCOPY PERSON GAVE THE CORRECT NUMBER OF COPIES MADE, THUS MORE DOCUMENTS WERE SUPPLIED THAN SHOWN IN THE PANCHNAMA, SO THE PANCHNAMA IS INCORRECTLY PREPARED AND BAD IN LAW. THAT THERE WAS NO WARRANT FOR SEARCH OR SURVEY OF PARKSONS SECURITIES LTD., YET THE SEARCH WAS CONDUCTED ON PARKSONS SECURITIES LD. AND SEVERAL OF ITS BOOKS OF ACCOUNTS HAVE ILLEGALLY BEEN TAKEN AWAY. THE FACT THAT THE OFFICERS CONDUCTED THE SEARCH EVEN ON PARKSONS SECURITIES LTD. IS PROVED BY THE LETTER DATED 21.12.2011 OF THE DEPARTMENT WHEREIN THE DEPARTMENT ADMITS THAT THEY HAD TAKEN AWAY THE DOCUMENTS AND BOOKS OF ACCOUNTS OF PARKSONS SECURITIES LTD. IN THE SEARCH CONDUCTED. -: 14: - 14 8. IT IS BECAUSE THE DOCUMENTS WERE SEIZED THAT THE DEPARTMENT COULD PROVIDE COPIES WHEREOF TO PARKSONS SECURITIES LTD. 9. THE AFORESAID SUBMISSION PROVES THE FOLLOWING. A. THAT THE OPERATION WAS A SEARCH, AND NOT A SURVEY, NOW ADMITTED BY THE DEPARTMENT. B. THAT THE SEARCH WAS WITHOUT ANY AUTHORIZATION OR WARRANT. C. THAT UNAUTHORIZED OFFICERS INCLUDING MR. HARESHWAR SHARMA WAS A PART OF THE SEARCH PARTY. D. THAT SEVERAL DOCUMENTS NOT SHOWN IN THE PANCHNAMA BELONGING TO THIS COMPANY AND OTHERS HAVE BEEN TAKEN AWAY AND CONTINUOUSLY RETAINED BY THE DEPARTMENT TILL FEW COPIES WERE DELIVERED ON 16.01.2012. 10. IN FURTHERANCE TO THE SUBMISSIONS MADE EARLIER, THE APPELLANT SUBMITS THAT THE DEPARTMENT IS STILL NOT RETURNING OR SUPPLYING COPIES OF THE BOOKS OF ACCOUNTS OF THE APPELLANT, AND WANTS THE APPELLANT TO ARGUE THE APPEAL. THAT SEVERAL DOCUMENTS MOST OF THEM NOT BELONG TO THIS COMPANY, COPIES WHEREOF HAVE BEEN NOW DELIVERED. THE APPELLANT HAS TO SORT OUT AND FIND OUT ITS OWN DOCUMENTS IN ORDER TO MAKE SUBMISSIONS IN THIS APPEAL. 11. THE DEPARTMENT IN ITS LETTER DATED 25.01.2012 HAS TAKEN A STAND THAT THE LOOSE PAPERS ARE BOOKS OF ACCOUNTS. ON THIS ISSUE, THE APPELLANT PREFERS TO A JUDGMENT OF THE HON'BLE SUPREME COURT -: 15: - 15 OF INDIA IN THE MATTER OF CENTRAL BUREAU OF INVESTIGATION VS. V. C. SHUKLA & OTHERS REPORTED IN (1998) 3 SCC 410. IN THIS JUDGMENT, THE SUPREME COURT HAS HELD THAT BOOK ORDINARILY MEANS A COLLECTION OF SHEETS OF PAPER OR OTHER MATERIAL, BLANK, WRITTEN, OR PRINTED, FASTENED OR BOUND TOGETHER SO AS TO FORM A MATERIAL WHOLE. LOOSE SHEETS OR SCRAPS OF PAPER CANNOT BE TERMED AS BOOK FOR THEY CAN BE EASILY DETACHED AND REPLACED. THEREFORE THE TWO SPIRAL NOTEBOOKS (MR 68/91 AND MR 71/91) AND THE TWO SPIRAL PADS (MR 69/91 AND MR 70/91) ARE BOOKS WITHIN THE MEANING OF SECTION 34, BUT NOT THE LOOSE SHEETS OF PAPERS CONTAINED IN THE TWO FILES (MR 72/91 AND 73/91) 12. THE ASSESSING OFFICER IN THE CASE OF THE APPELLANT HAS BASED HIS ASSESSMENT ON CERTAIN SHEETS OF PAPER CONTAINING ARITHMETICAL CALCULATIONS WHICH DO NOT BELONG TO THE APPELLANT, BUT WHICH IS BEING WRONGLY REFERRED TO AS THE BOOKS OF ACCOUNTS. THE SAME SHEETS OF PAPER HAVE ALSO BEEN APPLIED FOR THE ASSESSMENT OF OTHER COMPANIES, NAMELY LUNKAD MEDIA & ENTERTAINMENT LTD., RAJVIR MARKETING & INVESTMENT LTD., WEST END MANAGEMENT & TECHNOLOGIES PVT. LTD. AND LUNKAD SECURITIES LTD. 13. IN THIS CONNECTION, THE APPELLANT AGAIN RELIES ON THE JUDGMENT OF THE SUPREME COURT WHEREIN THE APEX COURT HAS IN PARAGRAPH 26 OBSERVED AS UNDER, AND REPRODUCED THE JUDGMENT FROM MUKUNDRAMS CASE -: 16: - 16 .. A BOOK WHICH CONTAINS SUCCESSIVE ENTRIES OF ITEMS MAY BE A GOOD MEMORANDUM BOOK BUT UNTIL THOSE ENTRIES ARE TOTALED OR BALANCED, OR BOTH, AS THE CASE MAY BE, THERE IS NO RECKONING AND NO ACCOUNT. IN THE MAKING OF TOTALS AND STRIKING OF BALANCES FROM TIME TO TIME LIES THE CHIEF SAFEGUARD UNDER WHICH BOOKS OF ACCOUNT HAVE BEEN DISTINGUISHED FROM OTHER PRIVATE RECORDS AS CAPABLE OF CONTAINING SUBSTANTIVE EVIDENCE ON WHICH RELIANCE MAY BE PLACED. 14. THE AFORESAID REASONING WAS ADOPTED BY THE SUPREME COURT IN ITS JUDGMENT OF 1998. 15. THE APPELLANT FURTHER SUBMITS THAT ONLY SUCH BOOKS OF ACCOUNTS THAT ARE KEPT IN THE REGULAR COURSE OF BUSINESS, AND ARE BOUND OR STRUNG TOGETHER ARE RELEVANT, BUT ALL THE MORE IMPORTANT THAT ANY ENTRIES THEREIN CANNOT FASTEN LIABILITY ON ANY PERSON MERELY ON THE BASIS OF AN ENTRY THEREIN, THEY ALONE ARE NOT SUFFICIENT TO CHARGE ANY PERSON WITH ANY LIABILITY, THEY MAY AT BEST BE CORROBORATIVE EVIDENCE, BUT WITHOUT INDEPENDENT EVIDENCE PROVING THE ENTRIES, SUCH ENTRIES WOULD NOT CREATE LIABILITY. IN THIS CONNECTION, PARAGRAPH 17 AND 18 OF THE JUDGMENT CONTAIN USEFUL OBSERVATION TO SUPPORT THE CONTENTION OF THE APPELLANT. THE DEPARTMENT HAS APPLIED THE SHEET CONTAINING ARITHMETIC ENTRIES, ALTHOUGH IT CANNOT BE FOUND NOR CAN IT BE INTERPRETED THAT ANY CASH ENTRY SHOWN AS RECEIPT FROM A PERSON, OR A -: 17: - 17 COMPANY, OR SHOWN AS PAID INTO THE BANK, IS FROM WHOM, OR BY WHOM, AND INTO WHICH BANK, AND OF WHICH COMPANY. WITHOUT ANY NAMES OF THE COMPANY OR THE BANK, THE OFFICER HAS MERELY MADE A WILD GUESS. 16. THEREFORE, THE UNSIGNED PRINT OUT, WHICH IS THE BASIS OF THE ASSESSMENT, AND WHICH IS NOT OF THE APPELLANT IS ONLY A SCRAP OF PAPER IN TERMS OF THE JUDGMENT OF THE HON'BLE SUPREME COURT. IN THE END, THE APPELLANT SUBMITS THAT THE PREVIOUS SUBMISSIONS ARE NOT REPEATED MAY KINDLY BE READ AS PART OF THIS SUBMISSION. ALL THE GROUNDS OF APPEAL RAISED IN THE APPEAL MEMO BE TREATED AS THE GROUNDS OF THE APPELLANT AND BECAUSE BOOKS OF ACCOUNTS ARE NOT IN THE HANDS OF THE APPELLANT, THE APPELLANT IS STANDING WITH FOLDED HANDS UNDER ITS DISABILITY OF BOOKS. WE HAVE SUFFERED SIX YEARS OF LONG AND TORTUROUS LITIGATION WITH THE DEPARTMENT WHERE THE DEPARTMENT LOOKING DOWN UPON US AS A PARTY THAT IS CONCEALING INCOME. SUCH AN OPINION OF THE DEPARTMENT IS WRONG AND BASELESS AS SHOWN HEREINABOVE AND IN THE INTEREST OF JUSTICE, IT IS PRAYED THAT THE ORDER PASSED BY THE COMMISSIONER OF APPEALS AND THE ORDERS OF ASSESSMENT BE SET ASIDE AND QUASHED. 7. ON THE OTHER HAND, THE LEARNED CIT DR, SHRI KESHAV SAXENA, ALSO FILED WRITTEN -: 18: - 18 SUBMISSIONS ALONG WITH COPIES OF ORDERS OF JUDICIAL PRONOUNCEMENTS WHICH READ AS UNDER :- 1. IN THE PROCEEDINGS BEFORE AO AND BEFORE CIT-(A) THE LUNCAD GROUP HAS NOT CO- OPERATED AND HAS NOT EXPLAINED THE MATERIAL IMPOUNDED DURING SURVEY ON 02.05.2006. IF THE MATTER IS SET-ASIDE TO THE AO BY THE HONBLE ITAT, THERE IS EVERY LIKELIHOOD THAT THE LUNCAD GROUP WILL NOT CO-OPERATE AGAIN AS THEY ARE NOT IN A POSITION TO GIVE THE NAMES & ADDRESSES OF THE SHARE HOLDERS FROM WHOM THEY RECEIVED HUGE SHARE CAPITAL IN CASH NOR THEY WILL BE ABLE TO PROVIDE DETAILS OF BENEFICIARIES TO WHOM ACCOMMODATION ENTRIES IN TERMS OF UNSECURED LOANS/NEW SHARE CAPITAL/LTCG IS PROVIDED BY THE LUNCAD GROUP. IN VIEW OF THIS SETTING-ASIDE THE CASE TO AO WILL NOT SERVE ANY PURPOSE UNLESS THE DIRECTORS OF LUNCAD GROUP EITHER PERSONALLY OR THROUGH AN AFFIDAVIT GIVE BROAD EXPLANATION OF THE CONTENTS OF IMPOUNDED PAPERS, EXPLAIN THE MODUS OPERANDI AND IDENTIFY EACH BENEFICIARY FROM THE IMPOUNDED PAPERS, BEFORE THE HONBLE ITAT. 2. KIND ATTENTION OF THE HONBLE MEMBERS IS DRAWN TO THE FINDINGS GIVEN IN CASE OF MITTAL GROUP WHEREIN IN ORDER DATED 30.12.2011 THE HONBLE MEMBERS NOTED THAT INCRIMINATING DOCUMENT IMPOUNDED FROM LUNCAD GROUP PERTAIN TO ONE MONTH ONLY. THIS IS NOT A CORRECT STATEMENT OF FACT BECAUSE DURING HEARING IN CASE OF MITTAL -: 19: - 19 GROUP THE COPY OF RELEVANT IMPOUNDED PAPERS WAS FURNISHED TO THE HONBLE MEMBERS WHICH SHOWS THAT THE UNACCOUNTED CASH BOOK OF ASSESSEE WAS IMPOUNDED NOT ONLY FOR ONE MONTH I.E. APRIT-2006, BUT IT IS FROM JULY-2005 TO APRIL-2006 (9 MONTHS). BESIDES THIS THE CASH BOOK ESTABLISH THE ENTIRE MODUS OPERANDI OF ASSESSEE WHEREBY THE LUNCAD GROUP RECEIVED SUBSTANTIAL CASH FROM THE BENEFICIARIES, DEPOSITED THEM INTO THEIR VARIOUS BANK ACCOUNTS AND RETURNED BACK SUCH AMOUNT TO THE BENEFICIARIES IN TERMS OF UNSECURED LOANS/NEW SHARE CAPITAL AFTER DEDUCTING THEIR COMMISSION OF 2-5%. WHEN THE MODUS OPERANDI WAS ADMITTED BY THE HONBLE MEMBERS, THE ADDITION ON THIS BASIS COULD NOT BE RESTRICTED TO THE TIME PERIOD OF NINE MONTHS FOR WHICH THE PAPERS ARE FOUND BUT IT HAS TO BE EXTENDED TO THE ENTIRE PERIOD FOR WHICH CASH DEPOSITS ARE FOUND IN BANK ACCOUNTS OF LUNCAD GROUP, AS PER THE DECISION OF HONBLE MEMBERS ITSELF IN MITTAL GROUP CASES WHEREIN IN ORDER DATED 30.12.2011 THEY HAVE GIVEN FOLLOWING FINDINGS IN FIRST PARA OF PAGE 32:- WE FOUND THAT IN VARIOUS DIFFERENT BANK ACCOUNTS OF LUNCAD GROUP IN WHICH CASH WAS DEPOSITED PRIOR TO THE ISSUE OF CHEQUES TO THE BENEFICIARIES. IN SOME INSTANCES CHEQUES WERE NOT DIRECTLY ISSUED TO THE CONCERNED PARTIES, WHO HAS GIVEN CASH BUT WAS ROUTED THROUGH VARIOUS CONCERNS OF LUNCAD GROUP BUT ULTIMATELY CREDITED IN THE ACCOUNT OF BENEFICIARIES. -: 20: - 20 ONCE CASH DEPOSITS IN BANK ACCOUNTS BECOMES THE BASIS OF ADDITION, THE ADDITIONS IN EARLIER AND LATER YEARS IS LAWFULLY POSSIBLE BASED ON EXAMINATION OF BANK ACCOUNTS AND IT CANNOT BE RESTRICTED TO THE PERIOD FOR WHICH PAPERS WERE IMPOUNDED. 3. IN THE CASE OF MITTAL GROUP THE IDENTIFICATION OF MITTAL GROUP AS A BENEFICIARY WAS EASY BECAUSE THE PAPERS IMPOUNDED FROM LUNCAD GROUP THEMSELVES CONTAINED THE ENTRY OF CASH IN NAME OF NARMADA WHICH IS SHORT FORM OF NARMADA EXTRUSION PVT. LTD., THE MAIN COMPANY OF THE MITTAL GROUP. THEREFORE REVENUE CORRECTLY FORWARDED THE ARGUMENT THAT ADDITION U/S 68 OF VARIOUS AMOUNTS OF UNSECURED LOAN RECEIVED BY MITTAL GROUP FROM LUNCAD GROUP SHOULD BE MADE IN THE HANDS OF MITTAL GROUP AND ONLY COMMISSION INCOME ON SUCH LOAN TRANSACTION SHOULD BE TAXED IN THE HANDS OF LUNCAD GROUP. BUT FOR OTHER BENEFICIARIES THE DETAILS HAVE TO BE GIVEN BY THE LUNCAD GROUP BECAUSE DIRECT NAMES OF OTHER BENEFICIARIES ARE NOT APPEARING IN THE UNACCOUNTED CASH BOOK OF LUNCAD GROUP WHEREIN NAMES LIKE SUNIL, DARAK, BINDAL, TULSIYAN, BANTIAJI, BANSI, P.G., MEHTAJI, SANJEEV, ETC APPEAR. IF THE DIRECTOR OF LUNCAD GROUP FAILS TO IDENTIFY THE NAMES OF SUCH BENEFICIARIES, IN THAT CASE HONBLE MEMBERS WILL BE HAVING NO CHOICE BUT TO CONFIRM THE ADDITIONS OF SUCH CASH DEPOSITS IN THE HANDS OF LUNKAD GROUP ONLY U/S 68 OF THE I.T. ACT BECAUSE THE UNEXPLAINED CASE DEPOSITS WERE FOUND IN THE BANK ACCOUNTS OF LUNCAD GROUP AND THEY FAILED TO PROVIDE EVEN NAME & ADDRESSES OF SUCH -: 21: - 21 CREDITORS/SHARE APPLICANTS . AS THEY FAILED TO PROVE IDENTITY, GENUINENESS & CREDITWORTHINESS OF THE CREDITORS/SHARE APPLICANTS, ADDITION U/S 68 OF I.T. ACT IS TO BE SUSTAINED IN THEIR HANDS AS HELD IN FOLLOWING CASES:- (I) SHANKAR INDUSTRIES (CAL.) 114 ITR 689. (II) ROSHAN DE HATTI (SC) 107 ITR 938. (III) DHANLAXMI STEEL RE-ROLLING MILLS (AP) 228 ITR 780. (IV) SOPHIA FINANCE LTD. (DEL.) 205 ITR 98. (V) RATHI FINLEASE LTD. (MP) 215 CTR 429. THE DECISION OF HONBLE MEMBERS IN CASE OF M/S AGARWAL COAL CORPORATION P. LTD. REPORTED IN 18 ITJ 717 (ITAT, INDORE BENCH) WILL ALSO APPLY AGAINST ASSESSEE. 4. THE HONBLE MEMBERS ARE ALSO REQUESTED TO DECIDE ON THE RATE AT WHICH COMMISSION INCOME IS EARNED BY LUNCAD GROUP FROM THEIR TRANSACTION WITH MITTAL GROUP. SINCE THE COMMISSION RATES VARY FROM 2-5%. THIS IS EVIDENT FROM PAGE 25 TO 29 OF LPS-20. EVEN CASH BOOK PAGE 81 SHOWS RS. 85000 BROKERAGE WHICH COULD GIVE COMMISSION RATE. 5. ASSESSEE HAS NOT AVAILED OF VARIOUS OPPORTUNITIES GIVEN TO HIM TO EXPLAIN THE IMPOUNDED MATERIAL BEFORE COMPLETION OF ASSESSMENT, THEREFORE THEY ARE NOT ENTITLED TO ALLEGE CONTRAVENTION OF PRINCIPLE OF NATURAL JUSTICE AS HELD IN THE CASE OF P.N. BASLASUBRAMANION VS. ITO & ORS. (AP) 112 ITR 512. -: 22: - 22 8. IT IS CRYSTAL CLEAR FROM THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE THAT HE HAS HARPENED ON NON-SUPPLY OF COPY OF BOOKS OF ACCOUNTS FOR THE YEAR ENDING ON 31.3.2001 TO 31.3.2006 IMPOUNDED BY THE DEPARTMENT. AT SOME PLACES, THE ASSESSEE HAS ALSO AGREED THAT SOME OF THE COPIES OF THE SEIZED MATERIAL WERE SUPPLIED TO HIM. HOWEVER, NOWHERE IN THE WRITTEN SUBMISSIONS THE ASSESSEE HAS CHALLENGED THE ACTION OF THE ASSESSING OFFICER FOR MAKING THE ADDITION ON ACCOUNT OF SHARE APPLICATION MONEY RECEIVED BY HIM DURING THE YEARS ENDING FROM 31.3.2001 TO 31.3.2006. IT IS PERTINENT TO NOTE HERE THAT NO ADDITION HAS BEEN MADE BY THE DEPARTMENT BY REFERRING TO ANY ENTRY IN THE SEIZED MATERIAL EXCEPT IN THE ASSESSMENT YEAR 2007-08. WHATEVER ADDITION -: 23: - 23 HAS BEEN MADE WAS ON ACCOUNT OF SHARE APPLICATION MONEY RECEIVED BY THE ASSESSEE FOR WHICH DETAILS I.E. NAMES, ADDRESSES AND OTHER PARTICULARS OF SHARE APPLICANTS COULD NOT BE FURNISHED BY THE ASSESSEE. THE ASSESSEE ALSO DID NOT FURNISH ANY CONFIRMATION FROM ANY OF THESE SHARE APPLICANTS, THEREFORE, THE ASSESSING OFFICER HAS ADDED THE ENTIRE AMOUNT OF SHARE CAPITAL IN THE INCOME OF THE ASSESSEE AS UNEXPLAINED CREDIT U/S 68 OF THE ACT. 9. THE ASSESSEE HAS WRONGLY ALLEGED IN PARA 1 THAT THE APPEAL WAS FIXED FOR HEARING ON 23.1.2012 WHICH WAS ADJOURNED TO 30.1.2012. FROM THE ORDER SHEET, WE FIND THAT ALL THESE CASES WERE FIRST FIXED FOR HEARING ON 22 ND NOVEMBER, 2011 BUT NOBODY APPEARED ON BEHALF OF THE ASSESSEE. THE CASES WERE, THEREFORE, -: 24: - 24 ADJOURNED AND THE LEARNED CIT DR WAS DIRECTED TO EFFECT FRESH SERVICE OF NOTICE ON THE ASSESSEE. THE CASES WERE ADJOURNED TO 21 ST DECEMBER, 2011. ON 21 ST DECEMBER, 2011, SHRI P.M. MEHTA, ADVOCATE, AND SHRI K. BASHIR, APPEARED ON BEHALF OF THE ASSESSEE AND MOVED APPLICATION FOR ADJOURNMENT WITH THE REQUEST THAT THE DEPARTMENT MAY BE DIRECTED TO SUPPLY COPIES OF THE PAPERS SEIZED BY THE DEPARTMENT. IN REPLY, THE LEARNED CIT DR, SHRI KESHAV SAXENA, STATED THAT THE ASSESSEE HAS ALREADY BEEN SUPPLIED COPIES OF ALL THE SEIZED MATERIAL ON EARLIER OCCASIONS. HOWEVER, CONSIDERING THE REQUEST OF THE ASSESSEE, THE BENCH AGAIN DIRECTED THE LEARNED CIT DR TO PROVIDE ONE MORE COPY OF THE SEIZED MATERIAL TO THE ASSESSEE. AT THE REQUEST OF THE ASSESSEE, ALL THESE APPEALS WERE -: 25: - 25 ADJOURNED TO 26.12.2011. IT WAS MADE CLEAR IN THE OPEN COURT THAT NO FURTHER ADJOURNMENT WILL BE GRANTED TO EITHER SIDE. ON 26.12.20121 THE CASES WERE AGAIN ADJOURNED TO 9.1.2012 AND THEREAFTER TO 23.1.2011. ON 23.1.2011 THE ASSESSEE AGAIN MOVED AN APPLICATION FOR ADJOURNMENT AND THE DEPARTMENT ALSO SOUGHT ADJOURNMENT ON THE PLEA THAT THE LEARNED CIT DR WAS ON CASUAL LEAVE. IN VIEW OF THE APPLICATIONS OF BOTH THE SIDES, THESE APPEALS WERE ADJOURNED TO 30.1.2012 AND IT WAS MADE CLEAR THAT NO FURTHER ADJOURNMENT WILL BE GIVEN TO EITHER SIDE FOR ANY REASON WHATSOEVER. THESE CASES WERE FINALLY HEARD ON 30.1.2012 AND THE LEARNED REPRESENTATIVES FROM BOTH THE SIDES WERE SPECIFICALLY ASKED IF THEY WANT TO ARGUE FURTHER. IT WAS SPECIFICALLY REPLIED BY THE LEARNED -: 26: - 26 COUNSELS OF BOTH THE SIDES THAT THEY HAVE NOTHING MORE TO SAY AND SUFFICIENT OPPORTUNITY OF HEARING HAS ALREADY BEEN GRANTED TO THEM. 10. IT WAS CONTENDED BY THE LEARNED CIT DR THAT THE ASSESSEE HAS NOT COOPERATED WITH THE DEPARTMENT EITHER BEFORE THE ASSESSING OFFICER OR BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) AND HE HAS NOT EXPLAINED THE MATERIAL IMPOUNDED DURING SURVEY ON 2.5.2006. AS PER THE LEARNED CIT DR, THERE IS NO REASON MUCH LESS A VALID REASON IN RESTORING THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER INSOFAR AS EVEN BEFORE THE TRIBUNAL, THE ASSESSEE HAS NOT UTTERED A SINGLE WORD AGAINST THE ADDITION MADE BY THE ASSESSING OFFICER WHICH WAS CONFIRMED BY THE LEARNED COMMISSIONER OF INCOMETAX (APPEALS). SHRI SAXENA FURTHER -: 27: - 27 SUBMITTED THAT THERE IS VERY MUCH LIKELIHOOD THAT LUNKAD GROUP WILL NOT COOPERATE AGAIN AS THEY ARE NOT IN A POSITION TO GIVE THE NAMES AND ADDRESSES OF THE SHARE HOLDERS FROM WHOM THEY RECEIVED SHARE CAPITAL IN CASH. 11. WE HAVE CONSIDERED THE RIVAL CONTENTIONS, CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND ALSO DELIBERATED ON THE WRITTEN SUBMISSIONS FILED BY THE LEARNED AR AND LEARNED DR BEFORE US. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE MERELY RELIED UPON THE SUBMISSIONS MADE BY HIM IN WRITING AND HAS NOT STATED ANYTHING ON MERITS OF ADDITION MADE BY THE ASSESSING OFFICER AND WHICH WERE CONFIRMED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS). NO DOCUMENTARY EVIDENCE WAS FILED TO DISLODGE THE -: 28: - 28 FINDING RECORDED BY THE LOWER AUTHORITIES WHILE MAKING ADDITIONS. FROM THE RECORD WE FOUND THAT IN ALL THESE CASES, SURVEY WAS CONDUCTED U/S 133A OF THE ACT AT THE BUSINESS PREMISES OF LUNKAD GROUP OF COMPANIES ON 2.5.2006. THE ASSESSING OFFICER HAS GIVEN LIST OF COMPANIES AND THE LIST OF BANK ACCOUNTS THROUGH WHICH THE ASSESSEE COMPANY WAS DOING BUSINESS. THE ASSESSING OFFICER STATED THAT LUNKAD GROUP WAS INVOLVED IN PROVIDING ACCOMMODATION ENTRIES. IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS ALSO REPRODUCED THE SEIZED DOCUMENTS FOUND DURING THE COURSE OF SURVEY STARTING FROM 3 RD APRIL, 2006 TILL 1.5.2006 INDICATING RECEIPT AND PAYMENT OF CASH. THE ASSESSING OFFICER HAS ALSO GIVEN DETAILS OF NOTING IN LPS-15, LPS-19, LPS- 20, 30 AND 31. AS PER THE ASSESSING OFFICER, THE -: 29: - 29 ASSESSEE WAS RECEIVING CASH FROM DIFFERENT PERSONS WHICH WAS DEPOSITED IN THE BANK ACCOUNT. AS PER THE ASSESSING OFFICER, THE ASSESSEE WAS ALSO EARNING COMMISSION INCOME. THE ASSESSING OFFICER HAS ALSO OBSERVED THAT COPIES OF IMPOUNDED MATERIAL HAVE ALREADY BEEN PROVIDED TO THE ASSESSEE AS PER THE ORDER OF THE HONBLE HIGH COURT. IT IS CRYSTAL CLEAR FROM THE ASSESSMENT ORDER SO FRAMED THAT NO ADDITION HAS BEEN MADE IN THE HANDS OF THE ASSESSEE BY CO-RELATING OR BY LINKING ENTRIES ON SEIZED MATERIALS EXCEPT THE ASSESSMENT YEAR 2007-08. THE ADDITION IN THE HANDS OF THE ASSESSEE COMPANIES HAS BEEN MADE ON ACCOUNT OF SHARE CAPITAL RECEIVED BY IT FOR WHICH THE ASSESSEE FAILED TO FURNISH ANY NAME, ADDRESS AND OTHER PARTICULARS OF SUCH SHARE APPLICANTS. SINCE THE -: 30: - 30 IDENTITY ITSELF OF SUCH SHARE APPLICANTS WAS NOT ESTABLISHED, IN TERMS OF DECISION OF THE COORDINATE BENCH IN THE CASE OF AGARWAL COAL CORPORATION (P) LIMITED; 18 ITJ 717 (INDORE), THE LOWER AUTHORITIES WERE JUSTIFIED IN MAKING AND CONFIRMING ADDITION IN THE HANDS OF THE ASSESSEE COMPANIES. 12. FIRST WE WILL DEAL WITH ASSESSMENT YEARS 2001-02 TO 2005-06 WHERE ADDITIONS WERE MADE ON ACCOUNT OF SHARE CAPITAL RECEIVED BY THE ASSESSEE. DURING THE COURSE OF HEARING BEFORE US, EVEN THE LD. COUNSEL FOR THE ASSESSEE DID NOT POINT OUT ANY ADDITION BEING MADE BY THE ASSESSING OFFICER ON THE BASIS OF SEIZED MATERIAL EXCEPT IN THE ASSESSMENT YEAR 2007-08, THEREFORE, THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE DEPARTMENT HAS NOT -: 31: - 31 SUPPLIED COPIES OF SEIZED MATERIAL, HAS NO SUBSTANCE REGARDING THE ADDITIONS MADE IN ALL THE YEARS UNDER CONSIDERATION EXCEPT FOR THE ASSESSMENT YEAR 2007-08. . HAD THE DEPARTMENT MADE ANY ADDITION BY REFERRING ENTRIES ON SEIZED MATERIAL, THEN DEPARTMENT WAS UNDER OBLIGATION TO SUPPLY COPY OF SUCH SEIZED MATERIAL TO THE ASSESSEE BEFORE MAKING ANY ADDITION. IN THE ABSENCE OF SUCH SUPPLY OF MATERIAL, WE COULD HAVE THOUGHT FOR RESTORATION OF MATTER BACK TO FILE OF THE ASSESSING OFFICER. HOWEVER, IN THE INSTANT CASE, NO SUCH ADDITION WAS MADE BY REFERRING ANY ENTRIES FOUND TO BE NOTED ON SUCH SEIZED MATERIALS AND THE ADDITION WAS MADE MERELY ON ACCOUNT OF SHARE CAPITAL/SHARE APPLICATION MONEY SHOWN BY THE ASSESSEE IN THE BALANCE SHEET FILED ALONG WITH -: 32: - 32 RETURN OF INCOME WHICH THE ASSESSEE COULD NOT SUBSTANTIATE BY BRINGING ANY EVIDENCE ON RECORD EITHER BEFORE THE ASSESSING OFFICER OR THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OR EVEN BEFORE US. IN THE CASE OF RAJVIR INVESTMENT COMPANY FOR THE ASSESSMENT YEAR 2002-03 THE ASSESSING OFFICER OBSERVED THAT SCANNING OF SCHEDULE I OF THE BALANCE SHEET FURNISHED ALONG WITH ORIGINAL RETURN OF INCOME HAS REVEALED THAT DURING THE PREVIOUS YEAR 2001-02 THE ASSESSEE HAS SHOWN INTRODUCTION IN SHARE APPLICATION MONEY OF RS. 1,94,16,000/-. THE ASSESSING OFFICER HAS OBSERVED THAT THE ASSESSEE HAD NOT GIVEN NAMES OF PERSONS/CONCERNS AND ALSO OTHER PARTICULARS OF THE AMOUNTS INTRODUCED IN THEIR NAMES UNDER THE HEAD SHARE CAPITAL IN THE RETURN. HOWEVER, NO ADDITION HAS BEEN MADE BY -: 33: - 33 ASSESSING OFFICER ON ACCOUNT OF ANY ADVANCE GIVEN BY ASSESSEE OR INVESTMENT IN SHARES OF OTHER COMPANIES. AS PER THE ASSESSING OFFICER, ONUS HEAVILY LIES ON THE ASSESSEE TO ESTABLISH THE IDENTCITY, GENUINENESS AND CREDIT WORTHINESS OF THE ENTRIES CREDITED IN THE BOOKS OF ACCOUNTS. BY TAKING INTO ACCOUNT THE FACT THAT THE ASSESSEE HAS NOT FURNISHED ANY EVIDENCE MUCH LESS A MATERIAL EVIDENCE TO SUBSTANTIATE THE AMOUNTS RECEIVED BY WAY OF SHARE APPLICATION MONEY, HE ADDED THE ENTIRE AMOUNT AS UNEXPLAINED IN THE ASSESSEES HANDS U/S 68 OF THE ACT. WE FIND THAT THE ASSESSING OFFICER HAS GIVEN MUCH OPPORTUNITIES TO THE ASSESSEE AND ALSO ISSUED MANY QUESTIONNAIRES WITH REGARD TO FILING OF THE DETAILS FOR SUCH SHARE APPLICATION MONEY BUT THE ASSESSEE DID NOT FURNISH THE SAME. THE -: 34: - 34 ASSESSING OFFICER, THEREFORE, PASSED ORDER U/S 144 OF THE ACT AND ADDED THE ENTIRE SHARE APPLICATION MONEY IN THE ASSESSEES HANDS. EVEN BEFORE THE LEARNED COMMISSIONER OF INCOMETAX (APPEALS) THE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF SHARE APPLICATION MONEY I.E. THE NAMES, ADDRESSES AND OTHER PARTICULARS OF SHARE APPLICANTS, THEREFORE, HE CONFIRMED THE ACTION OF THE ASSESSING OFFICER. EVEN BEFORE US, THE ASSESSEE DID NOT FURNISH ANY DETAIL OF SHARE APPLICATION MONEY RECEIVED BY IT, THEREFORE, WE CONFIRM THE ACTION OF THE ASSESSING OFFICER FOR MAKING THE ADDITION U/S 68 OF THE ACT. WE, THEREFORE, DO NOT FIND ANY REASON TO INTERFERE WITH THE FINDINGS RECORDED BY THE LOWER AUTHORITIES. -: 35: - 35 13. SIMILARLY, THE ASSESSING OFFICER ALSO MADE ADDITION BY ESTIMATING THE COMMISSION INCOME @ 5% ON THE AMOUNT SHOWN UNDER THE HEAD SUNDRY DEBTORS. THE ASSESSING OFFICER HELD THAT THE ASSESSEE HAS EARNED COMMISSION INCOME IN ADDITION TO THE INTEREST INCOME DECLARED IN THE PROFIT AND LOSS ACCOUNT. THE ASSESSING OFFICER HAS ALSO MADE CERTAIN DISALLOWANCES OF EXPENDITURE DEBITED UNDER VARIOUS HEADS. THE ASSESSING OFFICER ALSO NOTICED THAT THE ASSESSEE HAS DEBITED EXPENDITURE OF RS. 10.83 LACS I.E. MORE THAN THE INTEREST INCOME CREDITED IN THE PROFIT AND LOSS ACCOUNT WHICH WAS RS. 10.75 LACS. HE, THEREFORE, OBSERVED THAT CONSIDERING THE NATURE OF RECEIPTS DECLARED IN THE PROFIT AND LOSS ACCOUNT, THE EXPENDITURE CLAIMED BY -: 36: - 36 THE ASSESSEE APPEARS TO BE ON HIGHER SIDE. ACCORDINGLY, HE DISALLOWED 50% OF SUCH EXPENDITURE. IN SIMILAR WAY, ADDITIONS WERE MADE BY THE ASSESSING OFFICER IN THE HANDS OF VARIOUS ASSESSEES BEFORE US WHICH WERE FOUND BY THE ASSESSING OFFICER AS SISTER/ASSOCIATE CONCERNS. 14. THE LEARNED COMMISSIONER OF INCOMETAX (APPEALS) CONFIRMED THE ADDITION MADE ON ACCOUNT OF COMMISSION INCOME BUT AT THE VERY SAME TIME IN VIEW OF HIS FINDING GIVEN WITH RESPECT TO THE ADDITION OF SHARE CAPITAL MADE U/S 68 OF THE ACT, HE OBSERVED THAT NO FURTHER ADDITION IS CALLED FOR UNDER THIS ACCOUNT. IN RESPECT OF THE EXPENDITURE CLAIMED IN THE PROFIT AND LOSS ACCOUNT, 50% OF WHICH WAS DISALLOWED BY THE ASSESSING OFFICER, THE -: 37: - 37 LEARNED COMMISSIONER OF INCOMETAX (APPEALS) RESTRICTED THE DISALLOWANCE TO THE EXTENT OF 20% OF EXPENSES. HOWEVER, HE OBSERVED THAT THIS ADDITION IS ALSO COVERED BY THE ADDITION CONFIRMED BY HIM ON ACCOUNT OF SHARE CAPITAL. ACCORDINGLY, AS PER THE LEARNED COMMISSIONER OF INCOMETAX (APPEALS), NO SEPARATE ADDITION WAS CALLED FOR ON THIS ACCOUNT. IN VIEW OF THE FINDING GIVEN BY THE LEARNED COMMISSIONER OF INCOMETAX (APPEALS) WHILE CONFIRMING THE ADDITION ON ACCOUNT OF SHARE CAPITAL, WE DO NOT FIND ANY INFIRMITY IN HIS ORDER FOR NOT MAKING SEPARATE ADDITION ON ACCOUNT OF COMMISSION INCOME ALLEGED TO BE EARNED BY THE ASSESSEE AS WELL AS DISALLOWANCE OF PART OF THE EXPENDITURE. THUS, WE CONFIRM THE ACTION OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS). -: 38: - 38 15. THE ADDITIONS IN THE ASSESSMENT YEARS 2002-03 TO 2005-06 IN THE HANDS OF VARIOUS ASSESSEES HAVE BEEN MADE ON SIMILAR REASONING WHICH HAVE BEEN DEALT WITH BY THE ASSESSING OFFICER AND THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IN DETAIL. FOLLOWING THE REASONING GIVEN BY US HEREINABOVE, WE CONFIRM THE ACTION OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IN RESPECT OF ALL THE YEARS AND IN THE CASES OF ALL THE ASSESSEES BEFORE US. NOW WE DEAL WITH A.Y. 2007-08 16. IN THE ASSESSMENT YEAR 2007-08, THE ADDITION HAS BEEN MADE BY THE ASSESSING OFFICER ON THE BASIS OF INCRIMINATING DOCUMENTS FOUND DURING SURVEY AT ASSESSEES BUSINESS PREMISES ON 2.5.2006. IN THE ASSESSMENT ORDER OF M/S. -: 39: - 39 LUNKAD SECURITIES LIMITED FOR THE ASSESSMENT YEAR 2007-08, THE ASSESSING OFFICER OBSERVED AS UNDER :- A PERUSAL OF THE DETAILS SHOWED THAT THERE ARE NUMEROUS ENTRIES OF CASH RECEIPTS FROM VARIOUS PARTIES/MEDIATORS AND CASH PAYMENT/DEPOSIT IN BANK ACCOUNTS. THE DETAILS FOR SUCH DEPOSITS IN RESPECT OF THE RELEVANT ASSESSMENT YEAR ARE ILLUSTRATED AS UNDER :- DATE NAME CASH PAYMENTS CASH RECEIPTS 3/4/2006 SANDEEP 50,000 3/4/2006 TULSIYAN 1,00,000 3/4/2006 RITESH 1,00,000 3/4/2006 BANK 5,10,000 3/4/2006 DARAK 5,00,000 3/4/2006 BANK 3,50,000 3/4/2006 CHOPRAJI 5,00,000 4/4/2006 RITESH 4,000 4/4/2006 BANK 19,000 4/4/2006 TICKET SUNIL 4,700 4/4/2006 DARAK 1,000,000 4/4/2006 DARAK 1,000,000 4/4/2006 BANK 150,000 4/4/2006 CHOPRAJI 500,000 -: 40: - 40 4/4/2006 BHABHI 10,000 4/4/2006 BANK 1,000 4/4/2006 BINDAL 19,000 4/4/2006 BANK 99,000 4/4/2006 DADDY 33,500 4/4/2006 PETROL GETZ 1,000 4/4/2006 RECHARGE (1850) 2,000 4/4/2006 DEWAS 10,000 5/4/2006 DARAK 300,000 5/4/2006 BINDAL 650,001 5/4/2006 DARAK 1,400,000 5/4/2006 BANK 975,000 5/4/2006 BANK 775,000 5/4/2006 BANK 12,000 5/4/2006 BANK 1,700,000 5/4/2006 DADDY MANALI 10,000 7/4/2006 MEHTAJI 1,800,000 7/4/2006 SUNIL 30,000 7/4/2006 DARAK 1,800,000 7/4/2006 MEHTAJI 3,200,00 7/4/2006 DARAK 7,50,000 7/4/2006 RITESH RETURN 4,000 7/4/2006 RITESH PERSONAL 5,000 7/4/2006 BANTHIAJI 29,800 7/4/2006 BANK 9,75,000 7/4/2006 BANK 9,50,000 7/4/2006 BANK 5,50,000 7/4/2006 BANK 5,00,000 7/4/2006 P.G. 5,50,000 7/4/2006 ANILJI 2,00,000 8/4/2006 MEHTAJI 2,000,000 -: 41: - 41 8/4/2006 DARAK 500,000 8/4/2006 BANK 2,530,000 8/4/2006 BANK 700,000 8/4/2006 DARAK PACKET RET 10,000 8/4/2006 LAXMINARAYAN 7,000 8/4/2006 ANANYA BUS 5,000 8/4/2006 SANJU PERSONAL 2,000 10/4/2006 MEHTAJI 2,000,000 10/4/2006 DARAK SHORT RE 10,000 10/4/2006 BANK 990,000 10/4/2006 BANK 995,000 10/4/2006 AUDIT 2,000 10/4/2006 AIR CONDITIONER 1,000 10/4/2006 RITESH PERSONAL 1,000 10/4/2006 FORM 1,000 10/4/2006 CABLE 500 10/4/2006 BINDAL 2,000 10/4/2006 DHAR 25,000 12/4/2006 MEHTAJI 12/4/2006 BANK 12/4/2006 DARAK CAR 12/4/2006 SUNIL 12/4/2006 SALARY GHAN 12/4/2006 TENNIS RACKET 12/4/2006 RAJESH 12/4/2006 P.G. 12/4/2006 PETROL GETZ 13/4/2006 DARAK -: 42: - 42 13/4/2006 ANILJI 13/4/2006 DARAK 13/4/2006 BANK 13/4/2006 CRICKET TICKET 13/4/2006 DADDY 13/4/2006 BANK 14/4/2006 A SHAH 14/4/2006 ANILJI TICKET 14/4/2006 DIESEL INNOVA 14/4/2006 COROLLA PETROL 14/4/2006 RACHANA TICKET 14/4/2006 HUKUMDAS 14/4/2006 SANJEEV PERSONAL 14/4/2006 HOTEL 14/4/2006 BANTIHIAJI 14/4/2006 SANJAY BINDAL 15/4/2006 BANK 980,000 17/4/2006 DARAK 2,500,000 17/4/2006 ANILJI 1,500,000 17/4/2006 DARAK 500,000 17/4/2006 DARAK 1,500,000 17/4/2006 BANK 3,585,000 17/4/2006 SUNIL 500,000 18/4/2006 DARAK 43,000 18/4/2006 200 PACK REC 10,000 18/4/2006 P.G. 200,000 18/4/2006 DARAK 957,000 18/4/2006 BANK 1,990,000 18/4/2006 A.SHAH 300,000 18/4/2006 FARM NANU 2,000 -: 43: - 43 18/4/2006 KUBER 5,100 18/4/2006 BANK 475,000 18/4/2006 BANK 50,000 18/4/2006 P.G. 2,000,000 19/4/2006 TULSIYAN 100,000 19/4/2006 P.G. 1,000,000 19/4/2006 P.G. 5,00,000 19/4/2006 BANK 17,95,000 19/4/2006 BANK 30,000 19/4/2006 NOTE SHORT PACK MODERN 10,000 19/4/2006 MEHTAJI 5,000 20/4/2006 BANK 500,000.00 21/4/2006 BANK HSBC 25,000 21/4/2006 NARMADA 3,500,000 21/4/2006 DADDY 17,700 21/4/2006 SEEDS 3,000 21/4/2006 PETROL 2,000 22/4/2006 MEHTAJI 2,000,000 22/4/2006 BANK 995,000 22/4/2006 BANTHIAJI 500,000 22/4/2006 RITESH PERSONAL 2,500 22/4/2006 BRACKET 3,000 24/4/2006 DARAK 1,050,000 24/4/2006 BANK 1,990,000 24/4/2006 SUNIL 250,000 24/4/2006 PLANTS DHAR 10,000 24/4/2006 SANJU DHAR 8,000 24/4/2006 GETZ PET 2,000 25/4/2006 NARMADA 300,000 25/4/2006 BANK 1,795,000 25/4/2006 BANK 50,000 -: 44: - 44 25/4/2006 OPEL REPAIR 2,000 25/4/2006 SUNSHINE SOCIETY 10,000 25/4/2006 ICICI BANK 25,000 25/4/2006 DHAR 30,000 25/4/2006 P.G. 500,000 25/4/2006 P.G. 1,500,000 25/4/2006 SWATI TICKET 5,000 26/4/2006 AJAY 1,000,000 26/4/2006 DARAK 4,000,000 26/4/2006 BANK 995,000 26/4/2006 ANJLI CHALLAN 2,000 26/4/2006 SANJU 50,000 26/4/2006 BANK 750,000 27/4/2006 BANK 1,990,000 27/4/2006 BANK 10,000 27/4/2006 SANJAY AGRAWAL ON A/C 41,000 27/4/2006 P.G. 354,350 28/4/2006 DARAK 450,000 28/4/2006 MEHTAJI 1000,000 28/4/2006 BANK 2,350,000 28/4/2006 SUNIL 300,000 28/4/2006 DEWAS 200,000 28/4/2006 BANK 250,000 28/4/2006 UNCLE 50,000 29/4/2006 DEWAS GARLIC 41,500 29/4/2006 NARMADA 900,000 29/4/2006 NARMADA 1,100,000 29/4/2006 NARMADA 5,00,000 29/4/2006 UNCLE 50,000 29/4/2006 BANK 950000 -: 45: - 45 29/4/2006 SACHIN 608000 29/4/2006 AMIT 100,000 29/4/2006 SUNIL 300,000 1/5/2006 NARMADA 850,000 1/5/2006 AMIT 100,000 1/5/2006 SANJAY RETURN 26,000 1/5/2006 NARMADA 150,000 1/5/2006 BANK 995,000 1/5/2006 MOBILE RECHARGE 1,100 1/5/2006 P.G. 500,000 1/5/2006 COROLLA PETROL 2,250 1/5/2006 BANK 950,000 1/5/2006 RITESH REL. IPO 26,000 TOTAL RS. 5,00,87,200 4.1.5 IN VIEW OF THE ABOVE DISCUSSED FACTS, THE TOTAL INCOME OF THE ASSESSEE IS BEING COMPUTED ON THE LINES BELOW. 4.1.6. AS MENTIONED IN PARA 4.1.4, THERE WERE DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE TOTALING TO RS. 5,00,87,200/-. SINCE THE ASSESSEE HAS NOT MADE ANY COMPLIANCE TO THE QUERIES, THE SOURCE OF THE ABOVE DEPOSITS REMAINED UNVERIFIED. FURTHER, THERE IS NOTHING ON RECORD SO AS TO -: 46: - 46 ESTABLISH THE ACTUAL OWNER OF THE ABOVE MONEY. THEREFORE, IN THE ABSENCE OF ANY EXPLANATION OR EVIDENCES, THE ABOVE SUM IS BEING ADDED TO THE TOTAL INCOME OF THE ASSESSEE U/S 68 OF THE INCOME- TAX ACT, 1961, BEING UNEXPLAINED CASH DEPOSITS. IN THE ALTERNATIVE THE SAME CAN ALSO BE ADDED U/S 69 OF THE INCOME-TAX ACT. 17. IT IS CLEAR FROM THE OBSERVATION OF THE ASSESSING OFFICER THAT AS PER THE INCRIMINATING DOCUMENT FOUND DURING SURVEY, THE ASSESSEE HAD DEPOSITED CASH IN THE BANK ACCOUNT TOTALING RS. 5,87,00,200/- BUT THE SOURCE OF SUCH DEPOSIT REMAINED UNVERIFIED AND, THEREFORE, IN THE ABSENCE OF ANY EXPLANATION BY THE ASSESSEE, THE ASSESSING OFFICER HAS ADDED THIS AMOUNT TO THE TOTAL INCOME OF THE ASSESSEE U/S 68 OF THE INCOME-TAX ACT, 1961, BEING UNEXPLAINED CASH -: 47: - 47 DEPOSIT. HOWEVER, THE ASSESSING OFFICER HAS MADE THIS ADDITION ON SUBSTANTIVE BASIS IN THE HANDS OF LUNKAD SECURITIES LIMITED, INDORE, THIS AMOUNT WAS ALSO ADDED BY THE ASSESSING OFFICER ON PROTECTIVE BASIS IN THE HANDS OF LUNKAD MEDIA & ENTERTAINMENT LIMITED, RAJVIR MARKETING & INVESTMENT LIMITED, AND PARKSONS SECURITIES LIMITED. 18. IN AN APPEAL BEFORE THE CIT(A), IT WAS OBSERVED BY CIT(A) THAT NOTHING COULD BE PRODUCED BY THE ASSESSEE TO SUBSTANTIATE THE SAID DEPOSIT OF CASH IN THE BANK ACCOUNT AMOUNTING TO RS. 5,87,00,200/-. THE CIT(A) HAS ALSO GIVEN OPPORTUNITY TO THE ASSESSEE TO FURNISH EXPLANATION TO THE ASSESSEE AND TO SHOW AS TO WHICH COMPANY THESE ENTRIES PERTAIN, BUT THE ASSESSEE FAILED TO D O THE SAME. THEREFORE, HE CONFIRMED THE ADDITION IN -: 48: - 48 THE HANDS OF ALL THESE FOUR COMPANIES EQUALLY ON SUBSTANTIVE BASIS AFTER HAVING THE FOLLOWING OBSERVATIONS :- DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE DID NOT FURNISH ANY EXPLANATION AS REGARDS TO THESE ENTRIES. IN THE CIRCUMSTANCES, ASSESSING OFFICER HAD MADE ADDITION AMOUNTING TO RS. 4,23,90,074/- AND RS. 5,00,87,200/- ON THESE ACCOUNTS ON SUBSTANTIVE BASIS IN THE HANDS OF LUNKAD SECURITIES LIMITED, RAJVIR MARKETING & INVESTMENT LTD., AND PARKSONS SECURITIES LIMITED. IN FACT, THE ASSESSEE HAD NOT FILED EVEN THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2007-08 IN THE CASE OF ALL THESE FOUR COMPANIES. IN THE CIRCUMSTANCES, THE ASSESSING OFFICER HAD PASSED ORDER U/S 144. DURING THE APPELLATE PROCEEDINGS ALSO, NO DETAILS HAVE BEEN FURNISHED BEFORE ME. IN THE ABSENCE OF ANY EXPLANATION FROM THE SIDE OF ASSESSEE, IT IS DIFFICULT TO ASCERTAIN THE HANDS IN WHICH ADDITION ULTIMATELY WOULD LIE. FOR THIS REASON, I CONSIDER IT APPROPRIATE TO DIVIDE THE QUANTUM OF ADDITION EQUALLY IN THE HANDS OF ALL THESE FOUR COMPANIES. ACCORDINGLY, 1/4 TH OF THE SUM ( RS. 4,23,90,074/- AND RS. 5,00,87,200/-) DESERVES TO BE SUSTAINED ON SUBSTANTIVE BASIS IN THE HANDS OF EACH OF THESE FOUR COMPANIES. ACCORDINGLY, THE ADDITIONS ON THESE ISSUES AMOUNTING TO 1/4 TH OF THE SUM WHICH WORKS -: 49: - 49 OUT TO RS. 15,97,518/- & RS. 1,25,21,000/- RESPECTIVELY ON THESE ACCOUNTS ARE CONFIRMED. 19. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FOUND THAT THE ADDITION HAS BEEN MADE BY THE ASSESSING OFFICER ON THE BASIS OF INCRIMINATING DOCUMENT FOUND DURING COURSE OF SURVEY. THE ADDITION HAS BEEN MADE BY THE ASSESSING OFFICER ON SUBSTANTIVE BASIS IN THE HANDS OF M/S. LUNKAD SECURITIES LIMITED FOR ASSESSMENT YEAR 2007-08. SINCE ASSESSEE WAS DOING BUSINESS IN THE NAME OF THREE MORE COMPANIES OPERATING FROM THE VERY SAME PLACE, THE CIT(A) HAS DIVIDED THE ENTIRE AMOUNT EQUALLY AMONGST THE FOUR COMPANIES AND SUBSTANTIVE ADDITION WAS CONFIRMED BY HIM IN EACH OF THE FOUR COMPANIES HANDS, AS NOTHING WAS EVEN EXPLAINED -: 50: - 50 BEFORE CIT(A) AS TO WHICH COMPANY THESE ENTRIES PERTAINED. THE PLEA OF LD. CIT DR WAS THAT INCRIMINATING DOCUMENT WAS FOUND FOR MORE THAN ONE MONTH, THEREFORE, THE ASSESSING OFFICER SHOULD HAVE MADE ADDITION BY TAKING INTO CONSIDERATION THE DOCUMENTS FOR ALL THE MONTHS. WE FOUND THAT THE ASSESSING OFFICER HAS CATEGORICALLY MENTIONED IN PARA 4.1.4 EACH AND EVERY ENTRY OF THE DOCUMENT FOUND DURING COURSE OF SURVEY TOTAL OF WHICH WORKS OUT TO RS. RS. 5,87,00,200/- AND WHILE COMPUTING TOTAL INCOME FOR THE ASSESSMENT YEAR 2007-08, THE ASSESSING OFFICER HAS ADDED THIS AMOUNT IN THE TOTAL INCOME OF THE ASSESSEE. THE CIT(A) ALSO, WHILE CONFIRMING THE ADDITION HAS TAKEN THIS STATEMENT AS A BASIS OF ADDITION WHILE CONFIRMING THE SAME IN THE HANDS OF FOUR COMPANIES AMOUNTING IN TOTAL RS. 5,87,00,200/-. -: 51: - 51 THE CIT(A) HAS ALSO GOT COTERMINOUS POWER. SINCE THE CIT(A) HAS ALSO NOT CONSIDERED ANY OTHER DOCUMENT IN MAKING/CONFIRMING ADDITION, WE HAD NO REASON FOR GOING BEYOND THIS STATEMENT. 20. CONTENTION OF THE LD. AUTHORIZED REPRESENTATIVE WAS THAT COPY OF ENTIRE SEIZED DOCUMENTS AND BOOKS OF ACCOUNT WERE NOT FURNISHED TO THE ASSESSEE, THEREFORE, THE ADDITION MADE BY THE ASSESSING OFFICER WAS NOT JUSTIFIED. IN THIS CONNECTION, WE FOUND THAT THE ASSESSING OFFICER HAS GIVEN COPY OF THIS STATEMENT TO THE ASSESSEE, WHICH WAS FOUND DURING COURSE OF SURVEY, WHICH CLEARLY INDICATE DATE-WISE RECEIPT AND DEPOSIT OF CASH IN THE BANK ACCOUNT AND ASSESSING OFFICER HAS MADE ADDITION ONLY WITH RESPECT TO THIS DOCUMENT. HOWEVER, NO FURTHER ADDITION WAS MADE ON THE -: 52: - 52 BASIS OF ANY ENTRY IN THE BOOKS OF ACCOUNT IF ANY IMPOUNDED BY THE DEPARTMENT, THEREFORE, CONTENTION OF THE LD. AUTHORIZED REPRESENTATIVE TO THE EFFECT THAT SINCE THE COPIES OF BOOKS OF ACCOUNTS WERE NOT GIVEN TO THE ASSESSEE, NO ADDITION SHOULD HAVE BEEN MADE, HAS NO MERIT. AS THE ADDITION WAS MADE ONLY ON THE BASIS OF THIS INCRIMINATING DOCUMENTS, NOT ONLY COPY OF WHICH WERE SUPPLIED BY THE ASSESSING OFFICER TO THE ASSESSEE, BUT THE SAME WAS REPRODUCED IN DETAIL IN THE ASSESSMENT ORDER ITSELF AND WHICH THE ASSESSEE COULD NOT EXPLAIN EITHER BEFORE THE ASSESSING OFFICER OR BEFORE THE CIT(A) OR EVEN BEFORE THE TRIBUNAL, THEREFORE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A) FOR CONFIRMING THIS ADDITION EQUALLY IN THE HANDS OF FOUR COMPANIES OPERATING FROM THE SAME -: 53: - 53 PREMISES, WHERE THIS DOCUMENT WAS FOUND AND IMPOUNDED. 21. SIMILARLY, ON THE BASIS OF CERTAIN OTHER INCRIMINATING DOCUMENTS/LOOSE SLIPS FOUND AT THE BUSINESS PREMISES OF THE ASSESSEE ON THE DATE OF SURVEY AS MENTIONED IN PARA 3 PAGE 5 TO 8 OF ASSESSING OFFICERS ORDER, THE ASSESSING OFFICER HAS ADDED THE TOTAL OF ENTRIES MADE ON SUCH PAPERS WHICH WORKS OUT TO BE RS. 4,23,90,074/-. THE ASSESSING OFFICER HAS REPRODUCED EACH AND EVERY ENTRY ON THIS DOCUMENT/LOOSE PAPERS FOUND DURING SURVEY IN THE ASSESSMENT ORDER AND ALSO SUPPLIED THE COPY OF THE SAME TO THE ASSESSEE FOR EXPLAINING BUT THE ASSESSEE FAILED TO EXPLAIN THE SAME, THEREFORE, ADDITION WAS MADE BY THE ASSESSING OFFICER AFTER HAVING FOLLOWING OBSERVATIONS :- -: 54: - 54 4.1.6 AS DISCUSSED IN PARA 3 BOVE DURING THE COURSE OF SURVEY VARIOUS LOOSE PAPERS/DOCUMENTS WERE IMPOUNDED IN WHICH NUMEROUS ENTRIES WERE APPEARING. THE TOTAL OF SUCH ENTRIES COMES TO RS.4,23,90,074/-. SINCE THE ASSESSEE FAILED TO FURNISH ANY EXPLANATION IN RESPECT OF THESE ENTRIES, IT IS PRESUMED THAT THE ABOVE ENTRIES ARE RELATING TO THE ASSESSEES UNACCOUNTED INCOME FROM UNEXPLAINED SOURCES. THEREFORE, THE SAME IS BEING ADDED TO THE TOTAL INCOME OF THE ASSESSEE U/S 68 OF THE INCOME-TAX ACT, 1961. 22. IT IS CLEAR FROM THE ORDER OF THE ASSESSING OFFICER THAT TOTAL ENTRIES WHICH WORK OUT TO RS. 4,23,90,074/- COULD NOT BE EXPLAINED BY THE ASSESSEE, THEREFORE, THE ASSESSING OFFICER ADDED THIS AMOUNT ON SUBSTANTIVE BASIS IN THE HANDS OF M/S. LUNKAD SECURITIES LIMITED. HOWEVER, ON PROTECTIVE BASIS, SAME AMOUNT WAS ALSO ADDED BY ASSESSING OFFICER IN THE HANDS OF THREE MORE COMPANIES, NAMELY, LUNKAD MEDIA & ENTERTAINMENT LIMITED, RAJVIR MARKETING INVESTMENT LIMITED AND PARKSON SECURITEIS -: 55: - 55 LIMITED IN THE ASSESSMENT YEAR 2007-08. ON THE REASONING GIVEN HEREINABOVE, THE CIT(A) DISTRIBUTED THIS AMOUNT IN THE HANDS OF ALL THE FOUR COMPANIES EQUALLY AND ADDED THE AMOUNT ON SUBSTANTIVE BASIS IN THE HANDS OF THE FOUR COMPANIES. IT IS CLEAR FROM THE ORDERS OF THE LOWER AUTHORITIES THAT INSPITE OF GIVING OPPORTUNITY, THE ASSESSEE COULD NOT EXPLAIN THE ENTRIES FOUND ON THE LOOSE PAPERS, THEREFORE, ADDITION WAS MADE AND CONFIRMED BY THE DEPARTMENT. EVEN BEFORE US, THE ASSESSEE COULD NOT PLACE ANY MATERIAL TO DISLODGE THE FINDING RECORDED BY THE LOWER AUTHORITIES. ACCORDINGLY, WE CONFIRM THE ACTION OF THE CIT(A) FOR ADDING THIS AMOUNT EQUALLY AMONGST ALL FOUR COMPANIES AS MENTIONED ABOVE. -: 56: - 56 4. BOTH LD. AUTHORIZED REPRESENTATIVE AND LD. SENIOR DR AGREED THAT THE FACTS AND CIRCUMSTANCES IN THE INST ANT APPEAL ARE SAME AS DISCUSSED BY THE TRIBUNAL IN ITS ORDER DATED 31 ST JANUARY, 2012. AS THE FACTS AND CIRCUMSTANCES ARE S AME, WE RESPECTFULLY FOLLOW THE ORDER OF THE TRIBUNAL PASSE D IN THE CASE OF OTHER ASSESSEES OF THE SAME GROUP. ACCORDINGLY, WE CONFIRM THE ACTION OF THE CIT(A). 5. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE AND REVENUE ARE DISMISSED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 29 TH JANUARY, 2013. SD/ - SD/ - (JOGINDER SINGH) (R. C. SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 29 TH JANUARY, 2013. CPU* 232829 -: 57: - 57