HEDA MARBLES PVT. LTD., Ajmer V. ITO, Kishangarh

ITA 241/JPR/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2100 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 1 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 10-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRITHIVI RAJ MEENA A DD
• Assessee Lawyers: SATISH KUMAR GUPTA
• Keywords: Unexplained cash credit; Unexplained investment; Income from undisclosed sources; Search and seizure; Loose papers; Opportunity of being heard; Principle of natural justice; Opportunity of cross examination; Question of law; Difference of opinion; Corroborative evidences; Onus to prove
• Section: 133A; 131; 68; 69

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YA DAV, AM VK;DJ VIHY LA- @ ITA NO. 241/JP/2015 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2010-11 M/S HEDA MARBLES PVT. LTD. 17, RAJHANS COLONY, MADANGANJ KISHANGARH CUKE VS. ITO WARD KISHANGARH LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AABCH2050D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI SATISH KUMAR GUPTA (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI PRITHIVI RAJ MEENA (ADD. CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 28/02/2017 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 01/05/2017 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. CIT(A), AJMER DATED 10.12.2014 FOR A.Y. 2010-11. TH E GROUNDS OF APPEAL TAKEN BY THE ASSESSEE ARE AS UNDER:- 1. THAT THE CONFIRMING OF ADDITIONS OF RS. 28,71,656/- BY LD. C.I.T(A) AJMER ARE BAD IN LAW AND FACT OF THE CASE AS:- IT IS A FACT ON RECORD THAT APPELLANT COMPANY DID N OT TRANSACT ANY BUSINESS IN THE YEAR. ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 2 UNCORROBORATED VERSION, ALLEGATION AND FABRICATION OF SHRI NARESH AGARWAL CANNOT BE SAID TO BE CONCLUSIVE EVIDENCE-TH E ONUS ON DEPARTMENT HAS NOT BEEN DISCHARGED. JURISDICTIONAL A.O.(D.C.-INVESTIGATION WING, AJMER) HAS IN ASSESSMENTS ALREADY TREATED THE SUMS CREDITED IN BA NK ACCOUNTS AS INCOME OF SHRI NARESH AGARWAL (AND HIS WIFE SMT. KIRAN AGARWAL) 2. THAT THE ESTIMATION OF SALES AT 1,13,99,984/-, N.P. RATE AT 25.195%, N.P. 28,71,656/- ALL ARE BASELESS, ADDITIO N NEED TO BE DELETED. 2. THE BRIEF FACTS OF THE CASE ARE THAT A SURVEY WA S CONDUCTED U/S 133A AT THE BUSINESS PREMISES OF SHRI NARESH KUMAR AGARW AL AND SMT. KIRAN AGARWAL AND IT WAS NOTICED THAT HUGE CASH WAS DEPOS ITED IN THE BANK ACCOUNTS OF THESE TWO PERSONS. THESE PERSONS STATE D THAT TRANSACTIONS IN THEIR BANK ACCOUNTS ACTUALLY PERTAIN TO VARIOUS MARBLE TRADERS OF THE KISHANGARH. SHRI NARESH KUMAR AGARWAL STATED THAT THE SALE CONSIDERATION IN RESPECT OF UNACCOUNTED SALES MADE BY THE MARBLES TRADERS IS RECEIVED THROUGH THEIR BANK ACCOUNTS STA NDING IN NAME OF SHRI NARESH KUMAR AGARWAL AND SMT. KIRAN AGARWAL AND AMO UNT IS WITHDRAWN AND RETURNED TO THE ACTUAL MARBLE TRADERS . HE STATED THAT SALE PROCEEDS OF M/S HEDA MARBLES, M/S SHOBHA MARBL ES AND M/S ASHARAM BAPU MARBLES HAVE BEEN DEPOSITED FROM VARIO US STATIONS (PLACES) IN THEIR BANK ACCOUNTS AND AFTER WITHDRAWI NG THE CASH AT ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 3 KISHANGARH, SAME IS BEING PASSED ON TO SHRI SHARAD HEDA, MANAGER OF THESE CONCERNS. THE AO HAS REPRODUCED THE STATEMENT OF SHRI NARESH AGARWAL RECORDED DURING SURVEY ON 18.01.2011 ON PAG E NO. 3 TO 5 OF THE ASSESSMENT ORDER AND THEN AGAIN RECORDED HIS STATEM ENT U/S 131 ON 20.01.2011 IN WHICH IT WAS STATED THAT THE ABOVE TH REE CONCERNS HAVE INDULGED IN MAKING SALES OUTSIDE THE BOOKS OF ACCOU NTS AND SALE CONSIDERATION HAS BEEN RECEIVED IN CASH THROUGH THE BANK ACCOUNTS OF SHRI NARESH KUMAR AGARWAL AND HIS WIFE. IN RESPONSE TO THE QUERY LETTER FROM THE AO, THE ASSESSEE DENIED HAVING ANY BUSINES S TRANSACTIONS OR HAVING RECEIVED ANY CASH FROM SHRI NARESH KUMAR AGA RWAL AND SMT KARAN AGARWAL. THE AO ISSUED THE SUMMONS U/S 131 AN D RECORDED THE STATEMENT OF SHRI NARESH KUMAR AGARWAL DURING THE S UBJECT PROCEEDINGS IN WHICH SHRI NARESH KUMAR AGARWAL AGAIN REITERATED HIS STATEMENT THAT AMOUNT RECEIVED ON BEHALF OF HEDA MARBLE GROUP (M/S SHOBHA MARBLES, M/S HEDA MARBLES & M/S SHRI ASHARAM BAPU MARBLES) W AS RETURNED IN CASH AFTER WITHDRAWING FROM HIS FAMILIES BANK ACCOU NTS TO SHRI SHARAD HEDA AGAINST THE RECEIPT OF COMMISSION OF RS. 300 P ER RS. 1 LAC. THE AO ISSUED SUMMONS TO SHRI SHARAD HEDA ON 11.03.2013 IN RESPONSE TO WHICH HE DID NOT ATTEND THE PROCEEDINGS. THE AO SU PPLIED THE STATEMENT RECORDED DURING SURVEY TO THE ASSESSEE ON 11.03.2013. THE ASSESSEE HAS GIVEN ITS REPLY REPRODUCED BY THE AO A T PAGE 12 TO 24 OF ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 4 THE ASSESSMENT ORDER IN WHICH ASSESSEE HAS DENIED H AVING ENTERED INTO UNACCOUNTED SALES AND HAVING RECEIVED THE CASH THRO UGH THE BANK ACCOUNT OF SHRI NARESH AGARWAL AND HIS FAMILY AND T HEIR CONCERN. THE AO PROVIDED THE COPY OF BANK STATEMENT OF SHRI NARESH AND SMT. KIRAN AGARWAL TO THE ASSESSEE ON 20.03.2013 AND LETTER WA S ISSUED TO SHRI SHARAD HEDA AND SHRI MANISH HEDA TO CROSS EXAMINE S HRI NARESH KUMAR AGARWAL ON 20.03.2013. HOWEVER, HE DID NOT ATTEND T HE OFFICE OF THE AO TO CROSS EXAMINE SHRI NARESH AGARWAL. THE AO AGAIN ISSUED THE LETTER DATED ON 20.03.2013 TO SHRI NARESH AGARWAL TO VERIF Y CONTENTS OF THE STATEMENT GIVEN IN AFFIDAVIT OF SHRI SHARAD HEDA AN D SHRI MANISH HEDA. THE OUTCOME OF THE SURVEY PROCEEDINGS WERE BROUGHT TO KNOWLEDGE OF A/R AND BANK STATEMENT OF SHRI NARESH AGARWAL AND S MT. KIRAN AGARWAL WAS PROVIDED TO THE A/R AND REPORT OF THE INVESTIGA TION WING WAS ALSO BROUGHT TO THE KNOWLEDGE OF LD. A/R. THE AO POINTE D OUT THAT AS PER THE REPORT OF THE INVESTIGATION WING AND STATEMENT OF SHRI NARESH AGARWAL, HE HAS ADMITTED THAT AMOUNT RECEIVED FOR U NACCOUNTED SALES OF HEDA GROUP HAS BEEN RETURNED TO SHRI SHARAD HEDA AN D 90% OF HIS TRANSACTIONS RELATED TO HEDA GROUP AND SHRI SHARAD HEDA IS MANAGING THE AFFAIRS OF SHRI HEDA MARBLES PVT. LTD., M/S SHR I ASHARAM BAPU MARBLES AND M/S SHOBHA MARBLES. SUMMONS U/S 131 WE RE ISSUED TO SHRI SHARAD HEDA ON 11.03.2013. THE AO NOTED THAT ASSES SEE SHRI SHARAD ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 5 HEDA, MANAGER OF THE ASSESSEE IS PURPOSELY KILLING TIME AS CASE IS TIME BARRING. ON 22.03.2013, THE STATEMENT OF SHRI SHARA D HEDA WAS RECORDED IN FRONT OF SHRI NARESH AGARWAL AND THE LD . A/RS SHRI DHARMENDRA MAHESHWARI AND SHRI AJAY SOMANI WHICH HA S BEEN REPRODUCED BY THE AO ON PAGE 27 TO 29 OF THE ASSESS MENT ORDER. THEREAFTER THE STATEMENT OF SHRI NARESH AGARWAL WAS RECORDED AND REPRODUCED AT PAGE NO. 29 TO 30 OF THE ASSESSMENT O RDER. 3. FROM THE STATEMENTS SO RECORDED, THE AO CONCLUDE D AS UNDER:- FROM THE STATEMENT OF SHRI SHARAD HEDA AS REPRODUC ED ABOVE IN ANSWER TO QUESTION NO. 16, HE STATED THAT HE HAS MA DE TELEPHONIC TALK DAILY TO SHRI NARESH AGARWAL IN FINANCIAL YEAR 2009 -10 AND 2010-11. HE FURTHER ACCEPTED THAT HE MEET SHRI NARESH AGARWAL D AILY IN BETWEEN 2-3 PM. SHRI SHARAD HEDA ACCEPTED THAT IN FINANCIAL YE AR 2009-10 AND 2010- 11, HE WAS MAKING THE SALE BILLS OF M/S SHOBHA MARB LES, SHRI ASHARAM BAPU MARBLE AND M/S HEDA MARBLES PVT. LTD. IN AFFI DAVIT FILED ON 18.03.2013, HE HAS DENIED TO TAKE CARE OF ANY AFFAI RS IN THESE CONCERNS. IN INITIAL STATEMENT RECORDED OF SHRI NARESH AGARWA L DURING SURVEY, THE NUMBER OF MOBILE OF SHRI SHARAD HEDA TOLD WAS 98292 70507, THE SAME IS TOLD BY SHRI SHARAD HEDA. FROM THE STATEMENT OF SHRI SHARAD HEDA, FOLLOWING POINTS HAVE BECOME CLEAR:- ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 6 1. HE USED TO TALK TELEPHONICALLY DAILY TO SHRI NARESH AGARWAL 2. BOTH MEET DAILY IN BETWEEN 2-3 PM. 3. SHRI SHARAD HEDA IS MANAGING AFFAIRS OF SALES OF TH ESE CONCERNS. FROM THE FACTS NARRATED ABOVE, IT IS ESTABLISHED T HAT CONTENTS MENTIONED IN AFFIDAVIT OF SHRI SHARAD HEDA ARE WRON G. FURTHER IT IS CLEAR THAT SHRI SHARAD HEDA HAS RECEIVED AMOUNT THR OUGH BANK ACCOUNT OF SHRI NARESH AGARWAL AND HIS WIFE ON ACCO UNT OF UNDISCLOSED SALES OF THREE CONCERNS OF HIS FAMILY M EMBERS. 4. THEREAFTER SHRI NARESH AGARWAL ON 22.03.2013 PRODUC ED THE PHOTOCOPY OF RECORD IN RESPECT OF AMOUNT RECEIVED T HROUGH BANK ACCOUNTS OF SHRI NARESH AGARWAL AND HIS FAMILY AND CONCERN. THE AO REQUIRED THE ASSESSEE TO OBTAIN THE COPY OF THE SAM E FROM HIS OFFICE. AS PER THIS RECORD, A SUM OF RS. 3,41,99,953/- HAS BEEN RECEIVED ON ACCOUNT OF HEDA GROUP OF CONCERNS THROUGH THE BANK ACCOUNTS OF SHRI NARESH AGARWAL AND HIS FAMILY. THE DETAILS OF THE AMOUNT RECEIVED HAVE BEEN REPRODUCED BY THE AO FROM PAGE NO. 32 TO 50 OF THE ASSESSMENT ORDER. THE ASSESSEE AGAIN DENIED HAVING ENTERED INTO ANY UNACCOUNTED SALES AND DENIED HAVING RECEIVED ANY CA SH FROM SHRI NARESH AGARWAL. AFTER CONSIDERATION THE REPLY OF T HE ASSESSEE, THE AO FINALLY CONCLUDED AS UNDER:- ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 7 THE DETAILS OF AMOUNT RECEIVED THROUGH BANK ACCOUN T OF SHRI NARESH AGARWAL ARE DETERMINED ON THE BASIS OF PHOTO COPIES OF DOCUMENTS PRODUCED BY HIM IN THE EVENING OF 22.03.2013. THIS DETAIL OF AMOUNT RECEIVED ALONG WITH LETTER IS SENT TO ASSESSEE FOR EXPLANATION. ACCORDING TO THESE DETAILS, HEDA GROUP (M/S SHOBHA MARBLES M/S SHREE ASHARAM BAPU MARBLES AND M/S HEDA MARBLES PVT . LTD.) HAS RECEIVED RS. 3,41,99,953/- THROUGH BANK ACCOUNT OF SHRI NARESH AGARWAL. THE ASSESSEE HAS FILED WRITTEN REPLY ON 2 5.03.2013. THE REPLY FILED IS CONSIDERED. IN REPLY, THE ASSESSEE AND LD. A/R HAS POINTED OUT THE DEFECTS OF SURVEY PARTIES. THE SUR VEY CARRIED OUT WAS FOR LIMITED PURPOSES TO CATCH THE PERSONS WHO ARE D OING WORK OF FACILITATOR THROUGH THEIR BANK ACCOUNTS FOR MARBLE TRADERS OF KISHANGARH. AS DISCUSSED SUPRA, 15 PERSONS WERE CA UGHT IN KISHANGARH TOWN WHO WERE DOING THE JOB. THEY HAVE CATEGORICALLY ACCEPTED THAT THEY ARE DOING JOB OF FACILITATOR BEC AUSE THEY ARE OF NO MEANS. AT THE TIME OF SURVEY, STATEMENTS ARE RECOR DED WHICH IS BEING PART OF ASSESSMENT ORDER. THE DOCUMENTS PROD UCED DURING ASSESSMENT PROCEEDINGS WERE NOT FOUND AT THAT TIME OF ASSESSMENT PROCEEDING. THE DETAILS FROM THESE DOCUMENTS IS DE TERMINED AND SUPPLIED TO ASSESSEE ON 22.03.2013. THESE DOCUMENTS ARE PERUSED TO ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 8 LD. A/R ON 25.03.2013, THE LD. A/R ACCEPTED THAT TH E DOCUMENTS PRODUCED ARE RELIABLE. DURING THE COURSE OF STATEMENT SHRI NARESH AGARWAL HAS STATED THAT THE AMOUNT RECEIVED THROUGH HIS BANK WAS RETURNED T O SHRI SHARAD HEDA. THE AMOUNT WAS BRINGING IN HIS ACCOUNT ON IN STRUCTION OF SHRI SHARAD HEDA AND THIS AMOUNT PERTAINS TO M/S HEDA MA RBLES (P) LTD., M/S SHOBHA MARBLES AND M/S SHREE ASHA RAM BAPU MARB LE, KISHANGARH. THEIR THREE CONCERNS ARE OF HEDA GROUPS CONSIDERING THE FACTS OF THE CASE THE AMOUNT IS DISTRIBUTED EQUALLY IN THREE CONCERNS STATED ABOVE. THUS RS. 1,13,99,984/- (1/3 RD OF RS. 3,41,99,953/-) ARE TREATED AS UNDISCLOSED SALES OF THE YEAR UNDER CONS IDERATION OF ASSESSEE. THE DECLARED GP RATE IS REQUIRED TO BE A PPLIED ON THIS SALES AMOUNT RECEIVED THROUGH BANK ACCOUNT OF SHRI NARESH AGARWAL. THE ASSESSEE HAS NOT SHOWN ANY SALE DURING THE YEAR UND ER CONSIDERATION. DURING THE YEAR UNDER CONSIDERATION , THE G.P. RATE SHOWN IN CASE OF SISTER CONCERNS M/S SHOBHA MARBLE @ 25.33% AND IN CASE OF M/S SHREE ASHARAM BAPU MARBLES @ 25.05%. THE AVERAGE OF GP RATE IS APPLIED ON UNDISCLOSED SALES OF RS. 1 ,13,99,984/-. THUS THE ADDITIONAL INCOME WHICH WAS NOT DISCLOSED BY AS SESSEE COMES TO RS. 28,71,656/- AND THUS RS. 28,71,656/- IS ADDED T O THE TOTAL INCOME OF THE ASSESSEE. ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 9 5. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD CIT(A) WHO HAS CONFIRMED THE ADDITION. THE OPER ATIVE PORTION OF THE LD. CIT(A) ORDER IS REPRODUCED BELOW AS:- 3.3 I HAVE CONSIDERED THAT CONTENTION OF THE APPEL LANT AS WELL AS THE ASSESSMENT ORDER. IT IS SEEN THAT AS PER THE SURVE Y CONDUCTED IN CASE OF SHRI NARESH KUMAR AGARWAL AND SMT. KIRAN AGARWAL ON 18.01.2011, THE BANK ACCOUNTS OF THESE PERSONS WERE FOUND IN WHICH THE VARIOUS AMOUNT WERE DEPOSITED AT VARIOUS STATIONS ALL OVER INDIA A ND CASH WAS WITHDRAWN IMMEDIATELY AT KISHANGARH. SHRI NARESH K UMAR AGARWAL HAD CATEGORICALLY STATED THAT 90% THESE TRANSACTIONS PE RTAIN TO HEDA GROUP. HE EXPLAINED THAT THIS GROUP WAS INDULGING IN UNACC OUNTED MARBLE SALES AND THE MONEY WAS BEING RECEIVED FROM VARIOUS PURCH ASERS SPREAD AT VARIOUS STATIONS IN INDIA IN HIS OWN BANK ACCOUNT, WIFE BANK ACCOUNTS AND M/S SARVESHWAR TRADERS, A PROPRIETARY CONCERNS BANK ACCOUNT. THE SAME HAS BEEN WITHDRAWN AND GIVEN TO SHRI SHARAD HE DA, MANAGER OF THESE CONCERNS. THE SIMILAR STATEMENT WAS GIVEN BE FORE THE AO IN RESPONSE TO SUMMONS U/S 131. THE AO HAD ISSUED SUM MONS TO SHRI SHARAD HEDA FOR CROSS EXAMINATION OF SHRI NARESH KU MAR AGARWAL ON 20.03.2013. HOWEVER SAME WAS NOT AVAILED BY SHRI S HARAD HEDA PURPOSELY EVEN WHEN THE CASE WAS TIME BARRING ON 31 .03.2013. THE AO HAS ALSO PROVIDED ALL THE STATEMENTS RECORDED, COPY OF BANK ACCOUNTS ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 10 AND COPY OF PHOTOCOPY OF RECORDS OF TRANSACTIONS CA RRIED OUT BY HEDA GROUP THROUGH THE BANK ACCOUNT OF SHRI NARESH KUMAR AGARWAL AND HIS FAMILY TO THE ASSESSEE. FURTHER, IT HAS BEEN PROVED BY EXAMINATION OF SHRI SHARAD HEDA THAT HE WAS MANAGING THE AFFAIRS OF THREE CONCERNS HEDA GRO UP I.E. M/S HEDA MARBLE PVT. LTD., M/S ASHARAM BAPU MARBLES AND M/S SHOBHA MARBLES AND HE WAS REGULARLY MEETING AND TELEPHONICALLY TAL KING TO SHRI NARESH KUMAR AGARWAL ON THE REGULAR BASIS IN THE YEAR UNDE R CONSIDERATION. THE RECORD OF THE TRANSACTIONS IN THESE BANK ACCOUN TS CARRIED OUT BY SHRI NARESH KUMAR AGARWAL FOR THE HEDA GROUP WAS ALSO SU BMITTED BY SHRI NARESH KUMAR AGARWAL TO THE AO WHICH WAS OFFERED FO R EXAMINATION AND COPY TO THE ASSESSEE. HOWEVER ASSESSEE PREFERRED T O SIMPLY DENY THE TRANSACTIONS. FROM ABOVE, IT IS APPARENT THAT THERE WAS EVIDENCE IN THE FORM OF RECORD OF TRANSACTIONS CARRIED OUT ON BEHALF OF HEDA GROUP THROUGH THE BANK ACCOUNT OF SHRI NARESH KUMAR AGARWAL, SMT. KIRAN AG ARWAL AND THEIR PROPRIETARY CONCERN SARVESHWAR TRADERS. SHRI NARES H KUMAR AGARWAL HAD SPECIFICALLY EXPLAINED THE MODUS OPERANDI ADOPT ED BY THE ASSESSEE TO RECEIVE THE UNACCOUNTED SALE PROCEEDS THROUGH TH E BANK ACCOUNT OF ABOVE PERSONS IN THE STATEMENT RECORDED BY THE AO D URING ASSESSMENT ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 11 AND ALSO DURING THE SURVEY PROCEEDINGS. IT HAS ALS O BEEN POINTED OUT THAT THEY ARE PERSONS OF NO MEANS TO CARRY OUT SUBS TANTIAL TRANSACTIONS NOTED IN THE BANK ACCOUNTS. SHRI SHARAD HEDA, MANA GER OF THE ASSESSEE CONCERN AND A RELATIVE OF THE HEDA FAMILY HAS PURPO SELY AVOIDED THE CROSS EXAMINATION GIVEN TO HIM BY THE AO. THE ASSESSEE HAS NOT BEEN ABLE TO GIVE ANY BIFURCAT ION OF THE VARIOUS TRANSACTIONS CARRIED OUT THROUGH ABOVE BANK ACCOUNT S BY THREE CONCERNS OWNED BY HEDA FAMILY I.E. M/S HEDA MARBLES PVT. LTD ., SHOBHA MARBLE AND ASHARAM BAPU MARBLE. ACCORDINGLY THE AO EQUALL Y DISTRIBUTED THE SALE TRANSACTIONS AMONG THE THREE CONCERNS OF THE A SSESSEE GROUP. SHRI NARESH KUMAR AGARWAL HAD SPECIFICALLY EXPLAINED THE MODUS OPERANDI REGARDING THE UNACCOUNTED SALES ROUTED THROUGH THE BANK ACCOUNTS OF SHRI NARESH KUMAR AGARWAL, SMT. KIRAN AGARWAL AND T HEIR CONCERN. INSPITE OF THE FACT THAT SAID TRANSACTIONS WERE CON FRONTED TO THEM, THEY HAVE NOT BEEN CONTROVERTED. THE ASSESSEE HAS NOT D ENIED THE SALES BEING MADE TO THE CONCERNS STATIONED AT THE PLACES FROM WHERE SALE PROCEEDS HAVE ORIGINATED. SHRI SHARAD HEDA WAS MAN AGING THE AFFAIRS OF THE HEDA FAMILY BUSINESS CONCERNS HAS ACCEPTED B EING IN REGULAR CONTACT WITH SHRI NARESH KUMAR AGARWAL AND THE PURP OSELY AVOIDED THE CROSS EXAMINATION INSPITE OF ALL THE DOCUMENTS BEIN G CONFRONTED AND SUPPLIED TO THE ASSESSEE. THE STATEMENT RECORDED O F SHRI NARESH KUMAR ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 12 AGARWAL DURING SURVEY BY THE AO U/S 131 HAS NOT BEE N CONTROVERTED BY THE ASSESSEE. NO RECORD REGARDING TAXING OF THE IN COME IN THE HANDS OF THE SHRI NARESH KUMAR AGARWAL/SMT. KIRAN AGARWAL, I TS CIRCUMSTANCES AND FATE HAS BEEN FILED BY THE ASSESSEE. IN VIEW OF THE ABOVE DISCUSSIONS AND FINDINGS OF TH E AO, THE ADDITION MADE BY THE AO OF RS. 28,71,656/- IS CONFIRMED. 6. AGAINST THE FINDINGS OF THE LD CIT(A), THE ASSES SEE IS IN APPEAL BEFORE US. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THA T M/S HEDA MARBLES PVT LTD IS A COMPANY REGISTERED UNDER THE COMPANIES ACT 1956. THE DIRECTORS OF COMPANY ARE SMT MADHU HEDA AND SMT VIM LA DEVI HEDA. DURING THE YEAR UNDER CONSIDERATION, RETURN OF INCO ME DECLARING INCOME AT NIL, HAVING A LOSS OF RS 2192/- WAS FILED ON 30/ 08/2010 AS THERE WAS NO MANUFACTURING OR TRADING ACTIVITY. DURING THE CO URSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE COOPERATED WITH THE DEPAR TMENT, PRODUCED ALL THE BOOKS OF ACCOUNTS AND FILED THE REQUIRED DETAIL S. A SURVEY U/S 133A WAS CARRIED OUT BY THE INVESTIGATION WING OF THE DE PARTMENT ON 18/01/2011 AT THE BUSINESS PREMISES OF SHRI NARESH KUMAR AGARWAL AND SMT KIRAN AGARWAL (THIRD PARTIES). DURING THE COURS E OF SURVEY, IT WAS NOTICED THAT HUGE CASH HAS BEEN DEPOSITED IN THE BA NK ACCOUNTS RELATING TO SHRI NARESH KUMAR AGARWAL AND SMT KIRAN AGARWAL (THIRD PARTIES). ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 13 6.1 IT WAS FURTHER SUBMITTED THAT DURING THE COURSE OF SURVEY, STATEMENTS OF SHRI NARESH KUMAR AGARWAL WHO IS PROP ERITOR OF M/S SARVESHWER TRADERS WERE RECORDED ON 18/01/2011, WHE RE SHRI NARESH KUMAR AGARWAL CATEGORICALLY STATED:- (I) THAT HE IS PROPRIETOR OF M/S SARVESHWER TRADERS AND DO THE TRADING OF MARBLE. HE FURTHER EXPLAINED THE NATURE OF BUSINESS AND ALSO STATED THAT HE REGULARLY FILED RETURNS OF INCOME AND ALSO STATE D HIS PAN (WHILE ANSWERING QUESTIONS NO 1 AT APB 61). (II) HE FURTHER EXPLAINED THE ADDRESS, NATURE AND M ODUS OPERANDI OF HIS BUSINESS WHILE ANSWERING QUESTION NO 2 (APB-61). HE ALSO ACCEPTED THAT HE MAINTAINS THE BOOKS OF ACCOUNTS FOR HIS SALES & PURCHASES(APB 64 Q.NO.11). (III) HE ALSO EXPLAINED THAT HIS WIFE IS ALSO A BUS INESSWOMAN AND IS ASSESSED TO INCOME TAX UNDER PAN AGRPA6835C( ABP 62 ANSWER OF Q NO 3). (IV) WHILE ANSWERING QUESTION NO 4, SHRI NARESH AGA RWAL HAS CATEGORICALLY SATED THAT HE AND HIS WIFE BOTH ENJOY S CASH CREDIT LIMIT WITH PUNJAB NATIONAL BANK(APB 62). ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 14 (V) WHILE ANSWERING QUESTION NO 8 ,IT WAS FURTHER S TATED THAT HE ENTERED ALL THE TRANSACTIONS IN A DIARY BUT AT PRESENT HE D OES NOT KNOW WHERE THE DIARY IS, POSSIBLY IT WOULD HAVE BEEN DESTROYED. (VI) IN THE ENTIRE STATEMENTS HE HAS NOT STATED THE NAME OF ASSESSEE COMPANY I.E M/S HEDA MARBLES (P) LTD AS A BENEFICIA RY. HOWEVER HE HAS STATED THE NAME OF HEDA JI, HEDA MARBLES, SHOBHA MA RBLES, ASHA RAM BAPU MARBLES, SHARAD HEDA, MANISH HEDA. 6.2. IT WAS FURTHER SUBMITTED THAT THE STATEMENT OF SHRI NARESH KUMAR AGARWAL WERE AGAIN RECORDED U/S 131 ON 20/01/2011 A ND IN THESE STATEMENTS, SHRI NARESH KUMAR AGARWAL DID NOT STICK TO HIS EARLIER STATEMENTS, TOOK A SOMERSAULT AND STATED THAT HIS B USINESS WAS TO PROVIDE THE FACILITY OF BANK ACCOUNTS TO THE MARBLE TRADERS OF KISHANGARH FOR DEPOSITING CASH. HOWEVER WHILE ANSWERING QUESTI ON NO 2, HE RECONFIRMED THAT THE STATEMENT GIVEN ON 18/01/2011 IS TRUE AND CORRECT. IT IS NOT UNDERSTANDABLE THAT HOW BOTH THE STATEMEN TS CAN BE TRUE AND CORRECT ATLEAST IN RESPECT OF NATURE OF BUSINESS AN D IN RESPECT OF NAME OF PLACES RELATING TO SHRI HEDA JI AS IN THE FIRST STA TEMENT DATED 18/01/2011 WHILE ANSWERING QUESTION NO 10, STATIONS RELATING T O SHRI HEDA JI WERE TOLD AS FARIDABAD, KALYAN, MATHURA, JAMMU, PANIPAT, MEERUTH, MUJAFFAR NAGAR, JALANDHAR, CHENNAI, JABALPUR, HOSHIARPUR, TH ANA, SRINAGAR, ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 15 AMRITSAR ETC. WHEREAS IN THE STATEMENT DATED 20/01/ 2011, KALYAN STATION STATED TO BE RELATED WITH KAILASH JI BAGADA, CHENNA I STATION WAS STATED TO BE RELATED WITH SH. YASHVANT JI MANDHANA AND STA TIONS SUCH AS FARIDABAD, MATHURA, PANIPAT, THANA, JABALPUR, HOSHI ARPUR STATED IN STATEMENT ON 18/01/2011 RELATED WITH SHRI HEDA JI W ERE NOT STATED IN THE STATEMENT IN 20/01/2011 RELATING TO SHRI HEDA J I. IN REGARDS TO THE NAME OF BENEFICIARY, HE STATED IN QUESTION NO 9 STA TEMENT DATED 18/01/2011 THAT I GAVE SERVICES TO 15 TO 20 PERSONS APART FROM HEDA JI AND I DO NOT KNOW THEIR NAME AS THEIR AMOUNT WAS SM ALL AND I PROVIDED SERVICES TO THEM ONLY ONE TIME. IN THE STATEMENT DA TED 20/01/2011 HE CAME WITH FIVE NAMES ONLY AND IN THE STATEMENT DATE D 11/03/2013 HE CAME WITH ONLY FIVE NAMES. 6.3. IT WAS FURTHER SUBMITTED THAT SHRI SHARAD HEDA APPEARED ON 22/03/2013 BEFORE LD A.O. AND STRONGLY DENIED ANY T RANSACTION OR BUSINESS AND ALSO DENIED RECEIPT OF ANY MONEY OR CA SH FROM SH. NARESH KUMAR AGARWAL WHILE ANSWERING QUESTION NO 14-15 OF HIS STATEMENT. HE ALSO STATED THAT HE HAD NO BUSINESS RELATION WITH M /S SHOBHA MARBLES, A PARTNERSHIP FIRM, ASHA RAM BAPU MARBLE, AGAIN A PAR TNERSHIP FIRM AND M/S HEDA MARBLES (P) LTD A COMPANY. WHERE HE IS NEI THER A PARTNER NOR A DIRECTOR OR NOT AN EMPLOYEE DURING THE YEAR UNDER CONSIDERATION. ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 16 THESE STATEMENTS WERE TAKEN IN PRESENCE OF NARESH K UMAR AGARWAL. IT IS THEREFORE CLEAR THAT SH. SHARD HEDA HAS DENIED RECE IVING ANY CASH/MONEY FROM SHRI NARESH KUMAR AGARWAL AND IT IS ALSO CLEAR THAT SHRI SHARD HEDA IS NEITHER A PARTNER NOR A DIRECTOR AND EVEN NOT AN EMPLOYEE OF THE ASSESSEE COMPANY. THEREFORE SHARED HEDA CLEARLY AND LOUDLY DENIED ANY TRANSACTION OF RECEIPT OF MONEY O N BEHALF OF ASSESSEE COMPANY FROM SH. NARESH KUMAR AGARWAL. 6.4. IT WAS FURTHER SUBMITTED THAT WHILE ANSWERING QUESTION NO 9 OF STATEMENT DATED 11/03/2013 SH. NARESH KUMAR AGARWAL STATED THAT THE RECORD OF ALLEGED TRANSACTIONS IS NOT WITH HIM AND HE REQUIRES A TIME FOR ATLEAST 4-5 DAYS TO PRODUCE THE SAME. WHILE ANSWERI NG QUESTION NO 10 ABOUT THE NATURE OF EVIDENCE, IT WAS STATED BY SHRI NARESH KUMAR AGARWAL THAT SAID RECORDS WERE KEPT IN COPIES I.E N OTE BOOKS. WE WOULD LIKE YOUR HONOURS KIND ATTENTION ON THE ANSWER OF QUESTION NO 8 OF STATEMENT DATED 18/01/2011 WHERE SHRI NARESH KUMAR AGARWAL STATED THAT THE DIARY IS NOT TRACEABLE AND NOW THAT DIARY HAS BEEN CONVERTED INTO COPIES/ NOTE BOOK IN HIS STATEMENT DATED 11/03 /2013. 6.5. IT WAS FURTHER SUBMITTED THAT IN THE STATEMENT DATED 18/01/2011, SH. NARESH KUMAR AGARWAL STATED THAT 90% OF WORK DO NE BY HIM THROUGH ABOVE REFERRED BANK A/CS WAS FOR HEDA JI (Q NO 6 & Q NO 10). ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 17 IN THE STATEMENT DATED 20/01/2011 WHICH ANSWERING Q .NO 3, SHRI NARESH AGARWAL STATED THAT 90% OF WORK WAS DONE FOR SH. SHARAD HEDA. THE UNRELIABILITY AND UNTRUTHFULNESS OF HIS STATEME NT IS PROVED SIMPLY FROM THE FACT THAT THE ALLEGED TOTAL UNDISCLOSED SA LE OF SAID HEDA JI WAS RS.3,41,99,953/- ONLY WHICH IS NOT EVEN 27% OF TOTA L DEPOSITS (APPOX 13 CRORE) IN HIS BANK ACCOUNTS. 6.6. IT WAS FURTHER SUBMITTED THAT ON THE BASIS OF ABOVE REFERRED STATEMENTS ONLY, LD A.O. TOOK THE VIEW THAT THESE C ONCERNS ARE INCLUDED IN MAKING SALES OUTSIDE THE BOOKS OF ACCOUNT AND SA LE CONSIDERATION RECEIVED IN CASH THROUGH BANK ACCOUNT OF SHRI NARES H KUMAR AGARWAL AND HIS WIFE. THEREFORE L.D. A.O. SIMPLY ON THE BAS IS OF STATEMENTS OF THIRD PARTY I.E NARESH KUMAR AGARWAL FOR WHICH NO E FFECTIVE OPPORTUNITY OF CROSS EXAMINATION WAS GIVEN AND ON THE BASIS OF THE PHOTOCOPIES OF ALLEGED NOTE BOOK/DIARY/RECORD MAINTAINED SOLELY BY THE THIRD PARTY WHICH WAS SHOWN TO THE ASSESSEE JUST BEFORE ONE DAY FROM THE DATE OF ASSESSMENT AND ON THE BASIS OF CERTAIN ASSUMPTIONS & PRESUMPTIONS HELD THAT SINCE NARESH AGARWAL HAS STATED THAT T HE AMOUNT RECEIVED THROUGH HIS BANK WAS RETURNED TO SH. SHARAD HEDA. T HE AMOUNT WAS BRINGING IN HIS ACCOUNT ON INSTRUCTION OF SHRI SHAR D HEDA AND THIS AMOUNT PERTAINS TO M/S HEDA MARBLES (P) LTD, M/S SH OBHA MARBLES AND ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 18 M/S SHREE ASHA RAM BAPU MARBLES KISHANGARH. THESE T HREE CONCERNS ARE OF HEDA GROUP. CONSIDERING THE FACTS OF THE CASE, T HE AMOUNT IS DISTRIBUTED EQUALLY IN THREE CONCERNS AS STATED ABO VE. THUS RS.1,13,99,984/-(1/3 RD OF RS. 3,41,99,953/-) WAS TREATED AS UNDISCLOSED SALES OF THE YEAR UNDER CONSIDERATION OF THE ASSESS EE. IT WAS SUBMITTED THAT THE LD. A.O. IGNORED THE IMPORTANT FACT THAT T HE ASSESSEE COMPANY HAS NO TRADING ACTIVITY/ MANUFACTURING ACTIVITY DUR ING THE YEAR. THIS FACT HAS BEEN ACCEPTED BY LD A.O. IN LAST PARA OF PAGE 5 5 OF ASSESSMENT ORDER AND FURTHER HELD THAT THE DECLARED G.P. RATE IS REQUIRED TO BE APPLIED ON THIS SALES AMOUNT RECEIVED THROUGH BANK ACCOUNT OF SHRI NARESH AGARWAL. THE ASSESSEE HAS NOT SHOWN ANY SALE DURING THE YEAR UNDER CONSIDERATION. DURING THE YEAR UNDER CONSIDER ATION, THE G.P. RATE SHOWN IN THE CASE OF SISTER CONCERN M/S SHOBHA MARB LES IS @ 25.33% AND IN CASE OF M/S SHREE ASHA RAM BAPU MARBLES IS @ 25.05%. THE AVERAGE OF G.P. RATE OF THESE TWO CONCERNS COMES TO 25.19%. THIS 25.19% G.P. RATE IS APPLIED ON UNDISCLOSED SALES OF RS.1,13,99,984/-. THUS THE ADDITIONAL INCOME WHICH WAS ALLEGED AS NOT DISCLOSED BY ASSESSEE COMES TO RS 28,71,656/- WHICH WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE COMPANY. 6.7. IT WAS FURTHER SUBMITTED THAT THE ASSUMPTIONS & PRESUMPTIONS TAKEN BY LD A.O. WHILE FRAMING ABOVE ASSESSMENT ARE AS UNDER:- ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 19 (1) THAT SH. NARESH KUMAR AGRAWAL AND SMT. KIRAN AG RAWAL ARE PERSONS OF LIMITED MEANS. (2) THEIR CONCERNS ARE BOGUS IN WHICH NO KIND OF TR ADING, MANUFACTURING OR OTHER BUSINESS ACTIVITIES WERE CARRIED OUT. (3) THE ADDRESS GIVEN BY THESE PERSONS IN BANKS AND CONCERNS ARE RESIDENTIAL ADDRESS. THERE ARE NO SEPARATE PREMISES FROM WHERE THEIR CONCERNS WERE OPERATING. (4) ASSESSEE IS INDULGED IN MAKING SALES OUTSIDE TH E BOOKS OF ACCOUNT AND SALE CONSIDERATIONS IS RECEIVED IN CASH THROUGH BANK ACCOUNTS OF SHRI NARESH KUMAR AGRAWAL & HIS WIFE. AND THE CASH DEPOS ITED IN THE ABOVE BANK ACCOUNTS OF THIRD PARTIES BELONG TO THE ASSESS EE COMPANY. (5) THAT SH. SHARD HEDA IS MANAGER OF THE ASSESSEE COMPANY. (6) THAT M/S SHOBHA MARBLES, M/S SHREE ASHA RAM BAP U MARBLES AND THE ASSESSEE COMPANY BELONG TO SAME GROUP KNOWN AS HEDA GROUP. (7) THAT LD A.R. OF THE ASSESSEE COMPANY ON 25/03/2 013 ACCEPTED THAT THE DOCUMENTS PRODUCED ARE RELIABLE. (8) THAT THE AMOUNT BROUGHT IN THE ACCOUNT OF NARES H KUMAR AGARWAL PERTAINS TO M/S HEDA MARBLES (P) LTD. ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 20 6.8. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE ALS O FILED THE AFFIDAVITS OF SHRI SHARAD HEDA, SH. MANISH HEDA, SMT MADHU HEDA D IRECTOR OF THE COMPANY AND CA SH. DHARMENDRA. VIDE THESE REPLIES & AFFIDAVITS, THE ASSESSEE SUBMITTED:- 1. THAT THERE IS NO REASON/ CAUSE TO TREAT ANY AMOU NT AS UNDISCLOSED INCOME OF OUR FIRM FOR THE YEAR UNDER CONSIDERATION . 2. WE ARE NOT AWARE ABOUT THE INCRIMINATING DOCUMEN TS FOUND AND IMPOUNDED WITH THESE TWO PERSONS I.E NAMELY NARESH KUMAR AGARWAL AND SMT KIRAN AGARWAL. 3. WE ARE NOT ANSWERABLE REGARDING DOINGS OF A THIR D PARTY. 4. IF ANY SUM IS FOUND CREDITED IN THE BOOKS OF ACC OUNTS OF ANY PERSON, THAN THAT PERSON ALONE IS ANSWERABLE/LIABLE FOR THE CONSEQUENCES. 5. WE HAVE HAD NO BUSINESS WITH THESE TWO PARTIES N AMELY NARESH KUMAR AGARWAL & SMT. KIRAN DEVI. 6. SHRI NARESH KUMAR AGARWAL HAS TIME AND AGAIN AGR EED THAT HE IS IN MARBLE BUSINESS, HENCE THE SAID DEPOSITS WERE RELAT ED TO HIS BUSINESS TRANSACTIONS. 7. A REQUEST WAS MADE TO THE AO TO PROVIDE: (A) THE COPIES OF COMPLETE PROCEEDING & PAPERS RELA TING TO INVESTIGATION. ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 21 (B) COPIES OF BANK STATEMENT. (C ) COPIES OF DOCUMENTS INSPECTED & SEIZED. (D) SURVEY REPORT. (E) COPIES OF DIARIES AND BOOKS OF ACCOUNTS. (F) DETAILS OF TRANSACTION I.E AMOUNT DATE, STATION & NAME OF PARTY. (8) IT WAS ALSO SUBMITTED THAT U/S 68 OR U/S 69 SH. NARESH KUMAR AGRAWAL & HIS WIFE ARE ONLY LIABLE TO BE TAXED AND NOT THE ASSESSEE COMPANY. (9) ASSESSEE COMPANY ALSO SUBMITTED THAT BOTH SHRI NARESH KUMAR AGRAWAL AND SMT KIRAN DEVI ARE BUSINESS PERSONS & H AVE EXPLAINED THE NATURE OF THEIR BUSINESS IN Q.NO 1 TO 3 OF HIS STAT EMENTS. IT WAS ALSO SUBMITTED THAT THESE THIRD PARTIES ARE TRYING TO SH IFT THEIR TAX BURDEN ON THE ASSESSEE COMPANY. 6.9. IT WAS FURTHER SUBMITTED THAT THE FINDINGS OF LD CIT (A) ARE FACTUALLY INCORRECT AND POINT WISE SUBMISSIONS IN THIS REGARD IS AS UNDER:- (I) LD CIT (A) GROSSLY ERRED IN FRAMING THE APPEAL ORDER ON THE BASIS OF THIS INCORRECT FACT THAT 90% OF THE TRANSACTION RELATE TO HEDAJI . WE WOULD LIKE KIND ATTENTION OF HONBLE MEMBERS ON THE FACT STATED BY THIRD ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 22 PARTY NARESH AGRAWAL WHILE ANSWERING QUESTION NO 10 OF STATEMENT DATED 18/1/11 WHERE THE THIRD PARTY SH. NARESH AGRA WAL HAS STATED THAT 90% OF 13 CRORES BELONG TO HEDAJI. NOW YOUR HONOUR KINDLY SEE THE PARA 3 OF PAGE 55 OF ASSESSMENT ORDER WHERE THE AMOUNT A LLEGEDLY PERTAINING TO HEDAJI WAS FOUND ONLY RS. 3,41,99,953/- WHICH IS ONLY 26% OF THE TOTAL DEPOSIT OF RS. 13 CRORE. YOUR HONOURS LD CIT (A) ERRED IN NOT CONSIDERING THIS IMPORTANT FACT. (II) WHETHER THE MERE STATEMENTS OF A THIRD PARTY A RE SUFFICIENT EVIDENCE TO TREAT ANY TRANSACTION OF THIRD PARTY ENTERED INT O THE DIARY OF THIRD PARTY AS A TRANSACTION OF ASSESSEE WITHOUT PROVING THE SAID TRANSACTION AS SALES OF THE ASSESSEE. NO ENQUIRY FROM THE ALLEG ED BUYERS WAS MADE. ASSESSEE COMPANY HAS NEVER ACCEPTED THE ALLEGED TRA NSACTIONS AS THEIR SALES AND HAS NEVER ACCEPTED THAT THE ALLEGED AMOUN T WAS RETURNED TO THE ASSESSEE COMPANY BY THE THIRD PARTY. (III) SHARAD HEDA IS NOT AT ALL RELATED WITH THE AS SESSEE COMPANY. NEITHER HE IS A DIRECTOR NOR AN EMPLOYEE. HE WAS NE VER GIVEN ANY AUTHORITY ON BEHALF OF ASSESSEE COMPANY TO MAKE ANY BUSINESS DEALING WITH ANY OTHER PERSON. THEREFORE IF ANY INFORMATION WAS GIVEN TO SHARAD HEDA TO AVAIL THE OPPORTUNITY OF CROSS EXAMI NATION TO THIRD PARTY ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 23 NARESH AGRAWAL THAN THE ASSESSEE COMPANY IS NOT ANS WERABLE AND NO NEGATIVE PRESUMPTION CAN BE FRAMED AGAINST THE ASSE SSEE COMPANY. (IV) LD A.O DID NOT PROVIDE THE COPY OF PHOTOCOPY O F RECORDS OF TRANSACTION CARRIED OUT BY HEDA GROUP TO THE ASSESS EE COMPANY. LD A.O DID NOT PROVIDE FOLLOWING INFORMATIONS TO THE ASSE SSEE COMPANY EVEN AFTER SPECIFIC REQUESTS:- (A) COPY OF DOCUMENTS INSPECTED AND SEIZED. (B) OUTCOME OF THE SURVEY OPERATIONS. (C) COPIES OF ANY DIARY/BOOKS/NOTEBOOK PRODUCED BY THE ALLEGED THIRD PARTY BEFORE LD A.O. (D)COPIES OF TWO STATEMENTS WERE ALSO PROVIDED LATE I.E VIDE LETTER DATED 11/3/2013. (E)COPIES OF BANK STATEMENTS. (F) ALL BANK ACCOUNTS OF NARESH AGRAWAL & HIS FAMIL Y. (G) ALL BOOKS OF ACCOUNTS (H) ALL VOUCHERS (V) AT THE VERY OUTSET THE ASSESSEE COMPANY HAS NO BUSINESS RELATION WITH SH. SHARAD HEDA. MOREOVER THE ASSESSEE COMPANY HAS NOT MADE ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 24 ANY SALES DURING THE YEAR UNDER CONSIDERATION. ASSE SSEE COMPANY HAS NOT DONE ANY BUSINESS ACTIVITY OF MANUFACTURING OR SALE OR PURCHASE DURING THE YEAR UNDER CONSIDERATION. THEREFORE THER E CAN NOT BE ANY REMOTE POSSIBILITY OF ANY MANAGEMENT OF BUSINESS AF FAIRS BY SH. SHARAD HEDA. SH. SHARAD HEDA WAS NOT RELATED TO ASSESSEE C OMPANY. SINCE THERE WAS NO PRODUCTION OR TRADING ACTIVITY THE ASS ESSEE COMPANY CAN NOT BE HELD RESPONSIBLE FOR ANY TELEPHONIC TALKS BY SHARAD HEDA WITH ANY THIRD PARTY. MOREOVER SHRI SHARAD HEDA IN HIS STATEMENTS DATED 2 2/3/2013 HAS CATEGORICALLY DENIED ANY BUSINESS TRANSACTION WITH SH. NARESH AGRAWAL. SH.SHARAD HEDA HAS ALSO FORCIBLY DENIED ANY ALLEGED RECEIPT OF MONEY FROM SH. NARESH AGRAWAL ALLEGEDLY WITHDRAWN BY NARE SH AGARWAL FROM HIS BANK ACCOUNTS. HE HAS CATEGORICALLY STATED THAT THERE WAS NO BUSINESS RELATIONS OF HIM WITH NARESH AGRAWAL. HE F URTHER STATED THAT HE HAS NOT MADE ANY TRANSACTION OF MONEY WITH NARESH A GRAWAL. HE ALSO STATED THAT HE WAS NOT HAVING ANY POWER OF TRANSACT ION OF MONEY ON BEHALF OF ASSESSEE COMPANY. IT IS THEREFORE CLEAR FROM THE STATEMENTS OF SH. SH ARAD HEDA THAT HE NEVER DID ANY BUSINESS TRANSACTION WITH SH. NARESH AGRAWAL ON BEHALF OF ASSESSEE COMPANY. HE HAS NOT STATED ANYWHERE THAT H E HAS MANAGED ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 25 THE FINANCIAL AFFAIRS OF BUSINESS OF ASSESSEE COMPA NY. RATHER HE HAS DENIED SUCH TRANSACTION. TALKING ON PHONE OR MEETING WITH SH. NARESH AGRAWAL WAS HIS PERSONAL AFFAIRS AS CLEARLY STATED BY HIM. THEREFORE THE ASS ESSEE COMPANY CAN NOT BE TAXED SIMPLY ON THE BASIS OF ASSUMPTIONS, PRESUM PTIONS, SURMISES & CONJECTURES. ANY TAXATION ON THE BASIS OF STATEMENT S OF SH. SHARAD HEDA/MANISH HEDA IF LEVIABLE SHOULD BE IMPOSED IN T HE HANDS OF SH. SHARAD HEDA/SH. MANISH HEDA AND NOT ON THE ASSESSEE COMPANY. (VI) ALLEGED DIARY/NOTEBOOK/RECORD OF TRANSACTION WAS NOT PRODUCED IN ORIGINAL BEFORE LD A.O, ONLY PHOTO COPY WAS PRODUCE D. COPY OF THE SAME WAS NOT PROVIDED TO THE ASSESSEE COMPANY BEFORE PAS SING THE ASSESSMENT ORDER. IS PHOTO COPY OF ALLEGED DIARY/ N OTE BOOK IS A RELIABLE EVIDENCE. CAN ANY ASSESSMENT BE FRAMED ON THE BASIS OF SUCH EVIDENCE. (VII) THE ALLEGED MODUS OPERANDI EXPLAINED BY NARES H AGRAWAL IS THE CREATION OF HIS MIND ONLY. NO EVIDENCE IN REGARDS T O THE ALLEGATION THAT THE AMOUNT DEPOSITED IN THE BANK ACCOUNT OF NARESH AGRAWAL WAS OF ASSESSEE COMPANY WAS BROUGHT ON THE RECORD BY THE L D A.O. NO OTHER CORROBORATIVE EVIDENCE WAS BROUGHT ON RECORD EITHER BY THE NARESH AGRAWAL OR BY THE DEPARTMENT. NO INDEPENDENT EVIDEN CE WAS BROUGHT ON THE RECORD. ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 26 (VIII) NARESH AGRAWAL IS RUNNING BUSINESS. HE IS EN JOYING CASH CREDIT LIMIT FROM THE BANKS. NARESH AGRAWAL IS THE PROP. O F M/S SARVESHWAR TRADERS DEALING IN MARBLE & OTHER GOODS. HE HAS GOD OWNS IN KISHANGARH INDUSTRIAL AREA. HIS WIFE IS PROP. OF M/S KIRAN FAB RICS A POWER LOOM FACTORY. HE HAS OWN RESIDENTIAL HOUSE & FACTORY PRE MISES. HIS LIVING STANDARD WAS AFFLUENT. ALL SUCH FACTS WERE BROUGHT IN THE KNOWLEDGE OF LD A.O BY THE ASSESSEE COMPANY. LD A.O HAS REPRODUC ED THE SAME AT LAST PARA PAGE 51 OF ASSESSMENT ORDER. IT IS THEREF ORE UNLAWFUL TO SAY THAT NARESH AGRAWAL IS A PERSON OF NO MEANS. (IX) AS EARLIER SUBMITTED, SH. SHARAD HEDA IS NOT C ONNECTED WITH THE ASSESSEE COMPANY. MOREOVER NO EFFECTIVE OPPORTUNITY OF CROSS EXAMINATION WAS GIVEN TO THE ASSESSEE COMPANY AS NO DETAILS WERE PROVIDED BY LD A.O TO THE ASSESSEE COMPANY EVEN AFT ER A SPECIFIC REQUEST TO PROVIDE THE SAME. (X) SINCE ALL THE TRANSACTIONS OF DEPOSIT IN BANK A CCOUNTS OF NARESH AGRAWAL & OTHERS WERE NOT RELATED TO THE ASSESSEE C OMPANY AND WERE RELATED TO SH. NARESH AGRAWAL ONLY. THEREFORE THE A SSESSEE COMPANY WAS NOT IN POSITION TO EXPLAIN THE DEPOSIT ENTRIES IN THE BANK ACCOUNTS OF SHRI NARESH AGRAWAL AND OTHERS. SUCH EXPLANATION CA N NOT BE LEGALLY EXPECTED FROM THE ASSESSEE COMPANY. ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 27 (XI) SINCE THE TRANSACTION WERE NOT RELATING TO THE ASSESSEE COMPANY, ASSESSEE COMPANY IS NOT EXPECTED TO EXPLAIN THE SAM E. ASSESSEE COMPANY HAS CATEGORICALLY DENIED ANY SUCH TRANSACTI ONS. (XII) SMT. MADHU HEDA DIRECTOR OF THE COMPANY HAS A FFIRMED ON OATH THAT THE COMPANY HAS NOT MADE ANY SALES OUTSIDE THE BOOKS OF ACCOUNTS. AFFIDAVIT WAS FILED. SMT MADHU HEDA WAS NOT EXAMINE D BY LD A.O. AND HER AFFIDAVIT WAS NOT PROVED WRONG THEREFORE IN THE LIGHT OF DECISION OF HONBLE SUPREME COURT IN THE CASE OF MEHTA PAREEK & CO THE AFFIDAVIT AND ITS CONTENTS ARE TO BE ACCEPTED AS CORRECT. (XIII) ASSESSEE COMPANY HAS TIME & AGAIN IN ALL THE SUBMISSIONS HAVE SAID THAT THE ALLEGATIONS STATED IN STATEMENTS OF N ARESH KUMAR AGRAWAL ARE WRONG. (XIV) LD ACIT CENTRAL CIRCLE, AJMER IN THE CASE OF SH.NARESH KUMAR AGRAWAL HAS PASSED THE ASSESSMENT DATED 20/3/2014 AND HELD THAT ALL THE TRANSACTIONS BELONG TO SH. NARESH AGRAWAL AND H AS TAXED ACCORDINGLY IN THE HANDS OF SH. NARESH AGRAWAL ONLY. MORE IMPOR TANTLY IN HIS ASSESSMENT, SH. NARESH AGRAWAL HAS STATED THAT HE H AS NOT MAINTAINED ANY BOOKS OF ACCOUNTS. THEREFORE THE EXISTENCE OF P HOTOCOPY OF ALLEGED DIARY/NOTE BOOK IS NOT RELIABLE AND THE STATEMENT C ANNOT BE RELIED UPON. ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 28 6.10. THE LD AR FURTHER SUBMITTED THAT THE ENTIRE A SSESSMENT ORDER IS BASED ON THE SOLE STATEMENTS OF NARESH AGRAWAL AND THERE IS NO INDEPENDENT EVIDENCE AGAINST THE ASSESSEE COMPANY. THERE IS NO RECEIPT OF MONEY ISSUED BY THE ASSESSEE COMPANY. THERE IS N O CONFIRMATION OF ASSESSEE COMPANY CONFIRMING THE TRANSACTION MADE BY NARESH AGRAWAL. THERE IS NO POWER OF ATTORNEY IN FAVOUR OF NARESH A GRAWAL AUTHORIZING HIM TO COLLECT THE MONEY ON BEHALF OF ASSESSEE COMP ANY. NO ENQUIRY FROM THE ALLEGED DEPOSITORS WAS MADE. THERE IS NO S TATEMENT OF ANY OF THE DEPOSITORS OF MONEY THAT THE DEPOSITS HAVE BEEN MADE ON BEHALF OF THE ASSESSEE COMPANY. NO SALES FROM OUTSIDE THE BOO KS OF ASSESSEE WAS FOUND. ASSESSEE COMPANY HAS NEVER ACCEPTED SUCH TRA NSACTIONS. ORIGINAL RECORDS WERE NOT PRODUCED FOR VERIFICATION BY SH. N ARESH AGRAWAL. ONLY PHOTO COPIES OF ALLEGED DIARY/NOTE BOOK WAS PRODUCE D JUST 2 DAYS BEFORE THE DATE OF THE ORDER. THERE IS NO HANDWRITING OF A NY OF AUTHORIZED REPRESENTATIVE OF ASSESSEE COMPANY IN ANY ALLEGED R ECORD. THEREFORE MAKING ASSESSMENT SIMPLY ON THE BASIS OF STATEMENT & PHOTO COPY OF ALLEGED DIARY/NOTE BOOK IN THE HANDS OF ASSESSEE CO MPANY IS UNLAWFUL. WE RELY ON HONBLE SUPREME COURT IN THE CASE OF CBI V/S VC SHUKLA (1990) 3 SCC 40 (SC) WHERE HONBLE APEX COURT HAS S AID THAT ENTRIES IN BOOKS OF ACCOUNTS EVEN IF CORRECT AND AUTHENTIC CAN NOT FIX A LIABILITY WITHOUT INDEPENDENT EVIDENCE. IN THEIR ABOVE DECISI ON HONBLE SUPREME ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 29 COURT DISCUSSED THE CASE OF CHANDRADHAR V/S GAUHATI BANK [1967(1) SCR 898]. THIS CASE AROSE OUT OF A SUIT FILED BY GAUHAT I BANK AGAINST CHANDRADHAR FOR RECOVERY OF A LOAN OF RS. 40,000/- . IN DEFENSE CHANDRADHAR CONTENDED THAT NO LOAN WAS TAKEN. THE B ANK RELIED ON CERTIFIED COPY OF ACCOUNTS MADE BY THEM AND NO OTHE R EVIDENCE WAS PRODUCED. IT WAS HELD THAT THE BANK HAD TO PROVE TH E FACT OF PAYMENT AND COULD NOT RELY ON MERE ENTRIES IN THE BOOKS OF ACCOUNTS EVEN IF THEY WERE REGULARLY KEPT IN THE COURSE OF BUSINESS. THE HONBLE APEX COURT ALSO DISCUSSED THE CASE OF YESU VADIAN V/S SUBBA NEICKER (AIR 1919 MADRAS 132) WHERE IT WAS HE LD THAT SECTION 34 OF THE EVIDENCE ACT LAYS DOWN THAT THE ENTRIES IN THE BOOKS OF ACCOUNTS REGULARLY KEPT IN THE COURSE OF THE BUSINE SS ARE RELEVANT BUT SUCH A STATEMENT WILL NOT ALONE BE SUFFICIENT TO CH ARGE ANY PERSON WITH LIABILITY. HONOURABLE APEX COURT ALSO DISCUSSED THE CASE OF BENI V/S BISANDAYAL (AIR 1925 NAGPUR 445) WHERE IT WAS OBSER VED THAT ENTRIES IN BOOKS OF ACCOUNTS ARE NOT BY THEMSELVES SUFFICIENT TO CHARGE ANY PERSON WITH LIABILITY. THE REASON BEING THAT A MAN CAN NOT BE ALLOWED TO MAKE EVIDENCE FOR HIMSELF BY WHAT HE CHOOSES TO WRITE IN HIS OWN BOOKS BEHIND THE BACK OF PARTIES. THE HONBLE SUPREME COU RT ALSO DISCUSSED THE DECISION OF HONBLE PUNJAB AND HARYANA HIGH COU RT IN THE CASE OF HEERALAL MAHAVEER LAL PRASAD [(1967) 1 ITR PUNJAB & HARYANA 435] ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 30 WHERE THE HONOURABLE COURT OBSERVED THAT SUCH ENTRI ES THOUGH RELEVANT WERE ONLY CORROBORATIVE EVIDENCE AND IT IS TO BE SH OWN FURTHER BY SOME INDEPENDENT EVIDENCE THAT THE ENTRIES REPRESENT HON EST AND REAL TRANSACTION AND THAT MONEYS WERE PAID IN ACCORDANCE WITH THOSE ENTRIES. 6.11. IT WAS FURTHER SUBMITTED THAT THE THIRD PARTY SH. NARESH AGRAWAL IN HIS STATEMENT DATED 18/1/2011 HAS NOT TAKEN THE NAM E OF ASSESSEE COMPANY M/S HEDA MARBLES (P) LTD. AS A BENEFICIARY. HE HAS TAKEN THE NAME OF HEDA JI, SHOBHA MARBLES, ASHA RAM BAPU MARB LES, HEDA MARBLES, SHARAD HEDA, MANISH HEDA BUT HAS NOT TAKEN THE NAME OF ASSESSEE COMPANY OR ANY DIRECTOR OF THE ASSESSEE CO MPANY. THEREFORE ALSO MAKING THE ASSESSMENT AGAINST THE ASSESSEE COM PANY IS UNLAWFUL. 6.12. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE CO MPANY DID NOT PRODUCE/MANUFACTURE OR TRADE ANY GOODS DURING THE Y EAR UNDER CONSIDERATION. THERE WAS NO PURCHASES OR SALES DURI NG THE YEAR. THEREFORE LD A.O GROSSLY ERRED IN TREATING THE UNDI SCLOSED SALES OF THE ASSESSEE COMPANY AT RS. 1,13,99,984/-. 6.13. IT WAS FURTHER SUBMITTED THAT SH. NARESH AGRA WAL IN HIS STATEMENT DATED 20/1/2011 HAS STATED THE NAME OF SHRI SHARAD HEDA/SHRI MANISH HEDA ONLY AS A PARTY WHILE ANSWERING QUESTION NO 3 & 4 OF SAID ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 31 STATEMENTS. THEREFORE MAKING ASSESSMENT IN THE HAND S OF ASSESSEE COMPANY IS UNLAWFUL. 6.14. IT WAS FURTHER SUBMITTED THAT SH. NARESH AGRA WAL IN HIS STATEMENT DATED 11/3/2013 HAS AGAIN STATED THE NAME OF SH. SH ARAD HEDA/SHRI MANISH HEDA AS A NAME OF MAIN TRADER AND NOT OF THE ASSESSEE COMPANY. THEREFORE TO ASSESS THE ASSESSEE COMPANY F OR THE ALLEGED UNDISCLOSED SALES IS UNLAWFUL. 6.15. IT WAS FURTHER SUBMITTED THAT THE LD A.O AT P AGE 31 OF ASSESSMENT ORDER HAS MENTIONED THAT SH. NARESH AGRAWAL PRODUCE D THE PHOTOCOPY OF ALLEGED NOTEBOOK/DIARY/RECORD ON 22/3/2013 (LATE EVENING). ASSESSEE WAS ASKED TO EXAMINE THE SAID RECORD AND OBTAIN THE PHOTOCOPY OF RECORD AND WAS ASKED TO APPEAR ON 25/3/2013 AT 10 A M. THE PHOTOCOPY OF ANY RECORD IS NOT A RELIABLE DOCUMENT/EVIDENCE A ND CANNOT BE TREATED AS ACCEPTABLE EVIDENCE IN ABSENCE OF ORIGINAL RECOR D. NO REASON FOR NOT PRODUCING THE ORIGINAL RECORD WAS GIVEN. MOREOVER N O PROPER OPPORTUNITY OF BEING HEARD WAS GIVEN AS THE ALLEGED RECORDS THA T TOO A PHOTO COPY WAS AVAILABLE FOR VERIFICATION OF ASSESSEE COMPANY ON 23/3/2013 AND THE DATE OF HEARING WAS GIVEN FOR 25/3/2013 AND THE ASS ESSMENT WAS MADE ON 26/3/2013. THEREFORE MAKING ASSESSMENT ON THE BA SIS OF PHOTOCOPY OF RECORDS IS UNLAWFUL. ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 32 6.16. IT WAS FURTHER SUBMITTED THAT THE DIRECTOR OF THE ASSESSEE COMPANY FILED HER AFFIDAVITS BEFORE LD A.O AFFIRMING ON OAT H THAT THEIR COMPANY IS NOT INVOLVED IN MAKING OUTSIDE BOOKS SALE OR PURCHA SES AND HAS NOT ALLOWED ANY EMPLOYEE TO DO SUCH ACT. SHE FURTHER AF FIRMED THAT THE COMPANY HAS NOT GIVEN ANY AUTHORITY EITHER TO SH. S HARAD HEDA OR SH. MANISH HEDA OR SH. NARESH AGRAWAL OR SMT. KIRAN AGR AWAL TO COLLECT ANY AMOUNT FROM OUR CUSTOMERS OR TO USE BANK ACCOUNT OF THIRD PARTY. THE CONTENTS OF THE SAID AFFIDAVIT SHOULD BE TREATED AS ACCEPTED AS NO CROSS EXAMINATION OF THE DEPONENT WAS DONE. AFFIDAVIT WAS NOT REJECTED. WE RELY ON HONBLE SUPREME COURT IN THE CASE OF MEHTA PAREEK & CO. [1956 AIR 554/ 1956 SCR 626] 6.17. IT WAS FURTHER SUBMITTED THAT NO EFFECTIVE OP PORTUNITY OF CROSS EXAMINATION WAS GIVEN TO THE ASSESSEE COMPANY AS PR IOR TO CROSS EXAMINATION, COPY OF ALLEGED RECORD WAS NOT PROVIDE D TO THE ASSESSEE COMPANY. IT IS ALSO ON THE RECORD OF LD A.O THAT SH . NARESH AGRAWAL DID NOT PRODUCE THE ORIGINAL COPY OF RECORDS AND ONLY P RODUCED THE PHOTO COPY OF RECORDS. THEREFORE IN ABSENCE OF SUCH RECOR DS THERE WAS NO MEANING OF CROSS EXAMINATION. NOT PROVIDING OPPORTU NITY OF CROSS EXAMINATION IS AGAINST THE PRINCIPAL OF NATURAL JUS TICE. WE RELY ON HONBLE SUPREME COURT IN THE CASE OF ANDMAN TIMBER INDUSTRI ES (CIVIL APPEAL NO. 4228 OF 2006) ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 33 6.18. IT WAS FURTHER SUBMITTED THAT LD ACIT CENTRAL CIRCLE AJMER HAS MADE THE ASSESSMENT OF SH. NARESH AGRAWAL FOR A.Y. 2010-11 VIDE THEIR ORDER DATED 20/3/2014 COPY IS AT APB 48-60. LD ACIT CENTRAL CIRCLE, AJMER ASSESSED THE PROFIT ON ENTIRE TURNOVER OF RS. 6,55,83,749/- IN THE HANDS OF SH. NARESH AGRAWAL. THEREFORE TAXING OF SA ME DEPOSIT IN THE HANDS OF ASSESSEE TANTAMOUNT TO DOUBLE TAXATION AND IS UNLAWFUL. 6.19. IT WAS FURTHER SUBMITTED THAT THE ALLEGED DIA RY/ RECORD ON WHICH BASIS LD A.O. HAS MADE UNJUSTIFIED ADDITION IN THE YEAR UNDER CONSIDERATION, WAS NOT IMPOUNDED BY THE INVESTIGATI ON WING. SINCE THE VERY BEGINNING OF THE PROCEEDING, TILL THE MORNING OF 23/03/2013, NARESH AGARWAL WAS KEEP SAYING THAT HE DID NOT KNOW WHERE HE HAD KEPT THE DIARY AND IT MIGHT BE POSSIBLE THAT DIARY HAD BEEN DESTROYED. AND SUDDENLY AFTER MORE THAN 2 YEARS, IN THE LATE EVENI NG OF 23/03/2013, THE SAID NARESH AGARWAL HAS SUBMITTED THE PHOTOCOPY OF THAT ALLEGED RECORDS. 6.20. IT WAS FURTHER SUBMITTED THAT NO REASON WAS S UBMITTED/ BROUGHT ON THE RECORDS BY THE LD A.O. WHY THE ORIGINAL DIARY W AS NOT PRODUCED. HOW THE ALLEGED DIARY WHICH WAS NOT TRACEABLE FROM LAST 26 MONTHS, SUDDENLY GOT TRACED WHEN THE ASSESSMENT WAS GETTING TIME BAR RED. NO JUSTIFICATION/ REASONS HAVE BEEN PROVIDED BY LD A.O . REGARDING ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 34 AUTHENTICITY OF THAT ALLEGED DIARY. NO OTHER INDEPE NDENT OR CORROBORATIVE EVIDENCES HAVE BEEN SUBMITTED / BROUGHT ON THE RECO RDS BY LD A.O. TO SUSTAIN HIS VERSION. IT IS CLEAR CASE OF WHERE THIRD PARTY HAS BEEN BE A LLOWED TO MAKE EVIDENCE FOR HIMSELF BY MAKING DIARY AS PER HIS OWN WILL/WISH BEHIND THE BACK OF THE PARTIES WHICH IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE. THUS ANY ADDITION ON THE BASIS OF SUCH MANIPULATED DAIRY ARE UNJUSTIFIED, NEEDS TO BE DELETED. 6.21. IT WAS FURTHER SUBMITTED THAT ON THE BASIS OF FACTS OF THE CASE ADDITION IF ANY SHOULD HAVE BEEN MADE IN THE HANDS OF THIRD PARTIES THAT SHRI NARESH AGARWAL AND SMT. KIRAN AGARWAL ONLY BEC AUSE THE UNEXPLAINED CREDITS WERE FOUND IN THEIR BOOKS OF AC COUNTS AND UNEXPLAINED DEPOSITS WERE ALSO FOUND NOT RECORDED I N THEIR BOOKS OF ACCOUNTS. THEREFORE, THE PROVISION OF SECTION 68 & 69 ARE APPLICABLE ON THIRD PARTIES ONLY. 6.22. IT WAS FURTHER SUBMITTED THAT SHARAD HEDA IN HIS STATEMENT RECORDED BY LD AO ON 22/03/2013 HAS STRONGLY DENIED ANY TRANSACTION OR BUSINESS WITH SHRI NARESH AGARWAL OR HIS ASSOCIATE AND HAS ALSO DENIED ANY RECEIPT OF MONEY AND CASH FROM SHRI NARESH AGAR WAL OR HIS ASSOCIATE AND HAS ALSO STATED THAT HE HAS NO BUSINE SS RELATION WITH THE ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 35 ASSESSEE COMPANY AS HE IS NOT A DIRECTOR, PARTNER O R AN EMPLOYEE IN THE ASSESSEE COMPANY. 6.23. THE LD AR FURTHER PLACED RELIANCE ON THE FOLL OWING DECISIONS: 1. WE ALSO RELY ON HONBLE ITAT PUNE BENCE B IN THE CASE OF VINIT RANAWAT VS ASSTT. CIT (173 TTJ 414 (2015) 126 DTR 7 3), HAS HELD THAT SINCE IN THE INSTANT CASE THE ASSESSEE FROM T HE VERY BEGINNING HAS DENIED TO HAVE RECEIVED ANY SUCH PAYMENT FROM M /S. DHARIWAL GROUP THROUGH MR. SOHAN RAJ MEHTA AND SINCE NO INCR IMINATING MATERIAL WAS FOUND FROM THE RESIDENCE OF THE ASSESS EE DURING THE COURSE OF SEARCH AND SINCE THE ASSESSEE IS NOT DEAL ING WITH M/S. DHARIWAL GROUP IN HIS INDIVIDUAL CAPACITY, THEREFOR E, RESPECTFULLY FOLLOWING THE DECISIONS CITED ABOVE AND IN VIEW OF OUR REASONINGS GIVEN EARLIER, WE ARE OF THE CONSIDERED OPINION NO ADDITION IN THE HANDS OF THE ASSESSEE CAN BE MADE. SINCE IT IS HELD THAT THE ASSESSEE HAS NOT RECEIVED ANY AMOUNT, THEREFORE, THE QUESTIO N OF TAXING THE SAME UNDER SECTION 56(2)(VI) AS HELD BY COMMISSIONE R (APPEALS) DOES NOT ARISE. IN THIS VIEW OF THE MATTER, WE SET ASIDE THE ORDER OF THE COMMISSIONER (APPEALS) AND DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION OF RS. 1 CRORE FOR ASSESSMENT YEAR 200 6-07 AND RS. 20 CRORES FOR ASSESSMENT YEAR 2007-08. GROUNDS RAISED BY THE ASSESSEE ON THIS ISSUE ARE ACCORDINGLY ALLOWED. ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 36 2. WE ALSO RELY ON THE DECISION OF HONOURABLE ITAT, JA IPUR BENCH JAIPUR IN ITR NO. 467/JP/2011 IN THE CASE OF SHRI SHARAD U MISHRA, JAIPUR. WHERE HONBLE BENCH HELD THAT NO ADDITION CAN BE MA DE SIMPLY ON THE BASIS OF STATEMENTS ONLY. 3. WE ALSO RELY HON'BLE BOMBAY HIGH COURT IN THE CASE OF ADDL. CIT V. LATA MANGESHKAR (1974) 97 ITR 696 (BOM) HAS HELD T HAT MERE ENTRIES IN THE ACCOUNTS REGARDING PAYMENT TO THE AS SESSEE WAS NOT SUFFICIENT AS THERE WAS NO GUARANTEE THAT THE ENTRI ES WERE GENUINE IN ABSENCE OF ANY CORROBORATIVE EVIDENCE. IN THAT CASE , THE INCOME-TAX AUTHORITIES SOUGHT TO ASSESSEE CERTAIN INCOME AS IN COME FROM UNDISCLOSED SOURCES RECEIVED BY THE ASSESSEE ON THE BASIS OF STATEMENT BY 2 PERSONS THAT THEY HAD PAID MONEY IN BLACK TO THE ASSESSEE AND ENTRIES IN BOOKS BELONGING TO THEM REG ARDING ALLEGED PAYMENT TO THE ASSESSEE. THE TRIBUNAL EXAMINED THE STATEMENT MADE BY THE 2 PERSONS AND FOUND THAT THE EVIDENCE TENDER ED BY THEM SUFFERED FROM SERIOUS INFIRMITIES. IT HELD THAT MER E ENTRIES IN THE ACCOUNTS REGARDING PAYMENTS TO THE ASSESSEE WAS NOT SUFFICIENT AS THERE WAS NO GUARANTEE THAT THE ENTRIES WERE GENUIN E. THE TRIBUNAL THEREFORE HELD THAT THERE WAS NO PROOF THAT THE AMO UNT IN QUESTION REPRESENTED INCOME FROM UNDISCLOSED SOURCES BELONGI NG TO THE ASSESSEE. ON FURTHER APPEAL BY THE REVENUE, THE HON 'BLE HIGH COURT ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 37 HELD THAT THE CONCLUSION OF THE TRIBUNAL HAD BEEN R EACHED BY IT ON A PROPER APPRECIATION OF THE EVIDENCE. THIS WAS FINDI NG OF FACT BY THE TRIBUNAL AND NO QUESTION OF LAW AROSE AND NO REFERE NCE WOULD LIE FROM THE DECISION OF THE TRIBUNAL. ACCORDINGLY, THE APPEAL FILED BY THE REVENUE WAS DISMISSED. 4. WE SUBMIT THAT IN THE CASE OF COMMON CAUSE V/S UOI (SAHARA DIARIES), THE HONBLE SUPREME COURT WHILE INTERPRET ATING SECTION 34 OF THE EVIDENCE ACT HELD THAT ENTRIES IN LOOSE PAPERS/ SHEETS ARE IRRELEVANT AND ADMISSIBLE AS EVIDENCE. SUCH LOOSE P APERS ARE NOT BOOKS OF ACCOUNTS AND THE ENTRIES THEREIN ARE NOT S UFFICIENT TO CHARGE A PERSON WITH LIABILITY. EVEN IF BOOKS OF ACCOUNTS ARE REGULARLY KEPT IN THE ORDINARY COURSE OF BUSINESS, THE ENTRIES THEREI N SHALL NOT ALONE BE SUFFICIENT EVIDENCE TO CHARGE ANY PERSON WITH LIABI LITY. IT IS INCUMBENT UPON THE PERSON RELYING UPON THOSE ENTRIES TO PROVE THAT THEY ARE IN ACCORDANCE WITH THE FACTS. 7. THE LD DR HAS VEHEMENTLY ARGUED THE MATTER. HE TOOK US THROUGH THE FINDINGS OF THE AO AND THE LD CIT(A) AND HAS RELIED ON THE ORDER OF THE SAID AUTHORITIES. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURSUED THE MATERIAL AVAILABLE ON RECORD. ONE OF THE CONTENTIONS RAISED BY THE LD AR IS THAT SH ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 38 NARESH AGRAWAL HAS ALREADY BEEN BROUGHT TO TAX IN R ESPECT OF AMOUNT FOUND CREDITED IN HIS BANK ACCOUNTS AND TAXING THE SAME BANK DEPOSITS IN THE HANDS OF ASSESSEE COMPANY TANTAMOUNT TO DOUB LE TAXATION AND IS UNLAWFUL. IN THIS REGARD, IT WAS SUBMITTED THAT ACI T CENTRAL CIRCLE AJMER HAS MADE THE ASSESSMENT OF SH. NARESH AGRAWAL FOR A .Y. 2010-11 VIDE ASSESSMENT ORDER DATED 20/3/2014 WHEREBY RS. 6,55,8 3,749/- FOUND DEPOSITED IN HIS BANK ACCOUNTS HAVE BEEN BROUGHT TO TAX. IN OUR CONSIDERED VIEW, THIS IS THE FUNDAMENTAL ISSUE THAT ARISES FOR CONSIDERATION IN THE PRESENT CASE WHICH NEEDS TO BE ADDRESSED BEFORE WE EXAMINE OTHER CONTENTIONS RAISED BY BOTH THE PAR TIES. WHETHER THE AMOUNTS FOUND DEPOSITED IN THE BANK ACCOUNTS OF SHR I NARESH AGARWAL AND SMT KIRAN AGARWAL CAN BE BROUGHT TO TAX TWICE F IRSTLY IN THE HANDS OF SHRI NARESH AGARWAL AND SMT KIRAN AGARWAL, AND THEN AGAIN IN THE HANDS OF THE ASSESSEE COMPANY AS DONE BY THE REVENU E. UNDER THE SCHEME OF THE INCOME TAX ACT, THE INCOME HAS TO BE BROUGHT TO TAX IN THE HANDS OF THE ASSESSEE IN WHOSE HANDS THE INCOME RIGHTFULLY ACCRUES OR ARISES OR RECEIVED OR DEEMED TO BE RECEIVED BY T HAT PERSON. AT THE SAME TIME, THERE ARE SITUATIONS AND CIRCUMSTANCES W HERE IT IS NOT POSSIBLE FOR THE REVENUE TO DETERMINE THE PERSON TO WHOM THE INCOME RIGHTFULLY BELONGS. IN SUCH CASES, WHERE THERE IS SOME AMBIGUITY OR DOUBT IN THE MIND OF THE ASSESSING OFFICER, IT IS O PEN FOR THE ASSESSING ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 39 OFFICER TO MAKE ASSESSMENT ON TWO PERSONS IN RESPEC T OF THE SAME INCOME. SUCH ASSESSMENTS ARE MADE TO PROTECT THE I NTEREST OF THE REVENUE SO MUCH SO, UNLESS SUCH ASSESSMENT IS MADE, ASSESSMENT PROCEEDINGS AGAINST THE PARTY FINALLY FOUND TO BE L IABLE MAY BECOME BARRED BY TIME. IN THIS REGARD, USEFUL GUIDANCE CAN BE DRAWN FROM THE DECISION OF THE HONBLE SUPREME COURT IN CASE OF LALJI HARIDAS V. INCOME-TAX OFFICER [1961] 43 ITR 387 (SC) WHEREIN IT WAS HELD AS UNDER: IN CASES WHERE IT APPEARS TO THE INCOME-TAX AUTHOR ITIES THAT CERTAIN INCOME HAS BEEN RECEIVED DURING THE RELEVANT ASSESS MENT YEAR BUT IT IS NOT CLEAR WHO HAS RECEIVED THAT INCOME AND PRIMA FA CIE IT APPEARS THAT THE INCOME MAY HAVE BEEN RECEIVED EITHER BY A OR B OR BY BOTH TOGETHER, IT WOULD BE OPEN TO THE RELEVANT INCOME-T AX AUTHORITIES TO DETERMINE THE SAID QUESTION BY TAKING APPROPRIATE P ROCEEDINGS BOTH AGAINST A AND B. THAT BEING SO, THE APPELLANT WOULD NOT BE JUSTIFIED IN RESISTING THE ENQUIRY WHICH WAS PROPOSED TO BE HELD BY RESPONDENT NO. 1 IN PURSUANCE OF THE IMPUGNED NOTICE ISSUED BY HIM AGAINST THE APPELLANT. 8.1 IN THE INSTANT CASE, PURSUANT TO SURVEY UNDER S ECTION 133A CARRIED OUT ON 18.01.2011 AT THE BUSINESS CUM RESIDENTIAL P REMISES OF SHRI NARESH AGARWAL AND SMT KIRAN AGARWAL, THE ASSESSMEN T PROCEEDINGS ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 40 IN THE HANDS OF SHRI NARESH AGARWAL WERE RE-OPENED FOR THE SUBJECT ASSESSMENT YEAR 2010-11 AND RS 6,43,65,158 FOUND DE POSITED IN THE BANK ACCOUNTS WERE BROUGHT TO TAX. NO INFORMATION I S AVAILABLE ON RECORD IN RESPECT OF SMT KIRAN AGARWAL. SIMULTANEO USLY, THE ASSESSMENT PROCEEDINGS FOR AY 2010-11 IN THE HANDS OF THE ASSESSEE COMPANY WERE COMPLETED BRINGING TO TAX RS 1,13,99,9 84 IN RESPECT OF AMOUNT FOUND DEPOSITED IN THE BANK ACCOUNTS MAINTAI NED IN THE NAME OF SHRI NARESH AGARWAL AND KIRAN AGARWAL. WE COUL D SEE VARIANCE IN THE AMOUNT BROUGHT TO TAX IN THE HANDS OF SHRI NARE SH AGARWAL AND THE ASSESSEE COMPANY, THE REASON IS ATTRIBUTED, TO SOME EXTENT, TO THE FACT THAT THE ASSESSING OFFICER HAS DISTRIBUTED THE TOTAL AMOUNT OF RS 3,41,99,953 AMONG THREE COMPANIES INCLUDING THE ASS ESSEE COMPANY. THE FACT REMAINS THAT THE DEPOSITS FOUND DEPOSITED IN THE SAME BANK ACCOUNTS HAVE BEEN BROUGHT TO TAX IN HANDS OF SHRI NARESH AGARWAL AND THE ASSESSEE COMPANY. ON PERUSAL OF THE ASSESS MENT ORDERS, WE FIND THAT THERE EXISTED AN AMBIGUITY TO DETERMINE T HE PERSON TO WHOM THE DEPOSITS AND THE RESULTANT INCOME RIGHTFULLY BE LONGS. WE, THEREFORE, DONOT FIND ANYTHING WRONG IN THE ACTION OF THE REVENUE AUTHORITIES IN BRINGING TO TAX THE SAME AMOUNT IN T HE HANDS OF SHRI NARESH AGARWAL AND THE ASSESSEE COMPANY AS THERE EX IST AN AMBIGUITY ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 41 OR DOUBT AS TO THE RIGHTFULLY OWNER OF THE MONEY FO UND DEPOSITED IN THE BANK ACCOUNTS. 8.3 THE NEXT QUESTION THAT ARISES FOR CONSIDERATION IS WHO IS RIGHTFUL OWNER OF THE MONEY SO FOUND DEPOSITED IN THE BANK A CCOUNTS AND WHO SHOULD BE FINALLY ASSESSED TO TAX IN RESPECT OF SAI D BANK DEPOSITS. IT IS NOTED THAT THE REVENUES CASE RESTS ON THE STATEMEN TS OF SHRI NARESH AGARWAL RECORDED DURING THE COURSE OF SURVEY AND TH EN SUBSEQUENTLY DURING THE COURSE OF IMPUNGED ASSESSMENT PROCEEDING S, THE STATEMENT OF SHRI SHARAD HEDA AND THE DETAILS OF THE AMOUNT R ECEIVED THROUGH BANK ACCOUNT OF SHRI NARESH AGARWAL ON THE BASIS OF THE PHOTO COPIES PRODUCED BY SHRI NARESH AGARWAL IN THE EVENING OF 2 2.03.2013 ON PERUSAL OF WHICH THE AO FOUND THAT HEDA GROUP RECEI VED RS 3,41,99,953 FROM THE BANK ACCOUNT OF SHRI NARESH AGARWAL. IN OUR VIEW, THESE RECORDS OF TRANSACTION OF THE BANK ACCO UNTS BASIS WHICH THE AO HAS DETERMINED THE ASSESSEES COMPANY TAX LI ABILITY IS A CRITICAL PIECE OF EVIDENCE WHICH CAN SUPPORT AND CORROBORATE THE STATEMENTS SO RECORDED. IT IS EQUALLY IMPORTANT TO KNOW THE C ONTENTS OF THESE DOCUMENTS AND HOW THE AO HAS ESTABLISHED THE NECESS ARY NEXUS WITH THE ASSESSEE COMPANY. UNFORTUNATELY, THE RECORDS A ND PAPERBOOK SUBMITTED BEFORE US IS SILENT ON THIS AND IN ABSENC E OF THE SAME, WE ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 42 ARE UNABLE TO TAKE A VIEW IN THE MATTER SOLELY BASI S THE STATEMENTS SO RECORDED. FURTHER, THE LD AR HAS RAISED VARIOUS CO NTENTIONS (AS NOTED ABOVE) IN TERMS OF INCONSISTENCY IN THE STATEMENTS OF SHRI NARESH AGARWAL, THE ABSENCE OF NEXUS WITH THE ASSESSEE COM PANY, THE LOCUS STANDI OF SHRI SHARAD HEDA AND HOW THE SAME CANNOT BE RELIED UPON AND HELD AGAINST THE ASSESSEE. IN OUR VIEW, WHAT I S RELEVANT IS THAT THE STATEMENTS SHOULD BE READ AS A WHOLE AND ANY I NCONSISTENCIES SHOULD BE EXAMINED. FURTHER INDEPENDENT INVESTIGAT ION BE CARRIED OUT BY THE AO TO DETERMINE THE NECESSARY NEXUS WITH THE ASSESSEE COMPANY WITH THE AMOUNTS SO DEPOSITED IN THE BANK A CCOUNTS AND THE LOCUS STANDI OF SHRI SHARAD HEDA, THE RELATIONSHIP AND LINKAGE WITH THE PROMOTERS/DIRECTORS AND IN THE AFFAIRS OF THE ASSES SEE COMPANY BEFORE A FINAL VIEW IS TAKEN IN THE MATTER. IN OUR VIEW, T HERE IS NOT ENOUGH MATERIAL ON RECORD FOR US TO TAKE A VIEW IN THE MAT TER AND THE MATTER DESERVES TO BE SET-ASIDE TO THE FILE OF THE LD CIT( A) TO EXAMINE THE SAME AFRESH. 8.4 FURTHER, THE MATTER RELATING TO SHRI NARESH AGA RWAL FOR AY 2009-10 AND 2010-11 (ITA NO. 940 & 941/JP/15) HAD COME UP EARLIER BEFORE THIS BENCH AS PART OF BUNCH OF APPEALS IN CASE OF S MT. KUSUMDEVI VIJAYVARGIYA AND OTHERS (ITA NO. 942/JP15 AND OTHER S). THIS BENCH THROUGH ITS CONSOLIDATED ORDER DATED 20.10.2016 HAS SIMILARLY ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 43 REMANDED THE MATTER BACK TO THE FILE OF THE LD CIT( A) IN VIEW OF INSUFFICENT MATERIAL AND INVESTIGATION ON THE PART OF THE REVENUE AUTHORITIES. IN OUR VIEW, SINCE THE MATTER PERTAIN ING TO SHRI NARESH AGARWAL AND THE ASSESSEE COMPANY ARE CONNECTED, IT WOULD BE APPROPRIATE THAT THE SUBJECT MATTER IS ALSO SET-ASI DE TO THE FILE OF THE LD CIT(A) WITH THE DIRECTIONS AS CONTAINED IN PARA 8.3 ABOVE AND ALSO TAKING INTO CONSIDERATION THE DIRECTIONS OF THIS BE NCH IN ITS ORDER DATED 20.10.2016 WHICH ARE REPRODUCED AS BELOW: 2.3 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ISSUE UNDER CONSIDERATION RELATES TO CASH DEPOSITS AMOUNTING TO RS.11,37,60,458 MADE IN SIX B ANK ACCOUNTS MAINTAINED BY THE ASSESSEE. THE AO HAS HELD THESE RECEIPTS AS RECEIPTS FROM THE BUSINESS OF MARBLE TRADING AND THE LD CIT( A) HAS HELD THAT THESE RECEIPTS BELONG TO THE MARBLE TRADERS AND ASS ESSEE WHO HAS FACILITATED THESE RECEIPTS SHOULD BE BROUGHT TO TAX IN TERMS OF HER COMMISSION INCOME. UNDISPUTEDLY, THESE BANK ACCOUN TS ARE OPENED IN THE NAME OF THE ASSESSEE AND OPERATED BY THE ASSESS EE HERSELF WITH THE ASSISTANCE OF HER HUSBAND. THE STAND OF THE ASSESS EE IS THAT SHE IS NOT CARRYING ON ANY BUSINESS IN THE NATURE OF MARBLE TR ADING AS ALLEGED BY THE AO. SHE HAS FURTHER STATED THAT ALL THESE BANK ACCOUNTS WERE USED BY VARIOUS MARBLE TRADERS OPERATING IN AND AROUND K ISHANGARH TO BRING CASH AGAINST THEIR UNRECORDED SALES MADE TO VARIOU S PARTIES FROM ALL OVER INDIA. THE ASSESSEE FURTHER SUBMITTED THAT TH E CASH DEPOSITED BY THE VARIOUS PARTIES WAS SUBSEQUENTLY WITHDRAWN AND HANDED OVER TO THE MARBLE TRADERS TO WHOM THE SAID MONEY BELONG. THE A SSESSEE SUBMITTED THAT FOR THE ACTIVITY OF FACILITATING THE RECEIPT OF CASH IN HER BANK ACCOUNTS AND, SUBSEQUENT WITHDRAWAL AND HANDI NG OVER THE CASH TO THE MARBLE TRADERS, SHE USED TO GET THE COMMISSI ON FROM THE SAID ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 44 MARBLE TRADERS. HERE IT IS RELEVANT TO NOTE THAT T HE ENTIRE TRANSACTIONS IN VARIOUS BANK ACCOUNTS IN TERMS OF MONITORING TH E CASH DEPOSITS AS WELL AS SUBSEQUENT WITHDRAWAL AND HANDING OVER THE CASH HAS BEEN CARRIED OUT BY THE ASSESSEE HERSELF WITH THE ASSIS TANCE OF HER HUSBAND TO WHOM SHE HAS AUTHORISED AND NOT BY THE MARBLE TR ADERS. HERE IT IS ALSO RELEVANT TO NOTE THAT THE AO HAS ALSO STATED I N HIS ORDER ABOUT THE SAID MARKET PRACTICE IN THE BUSINESS OF MARBLE TRAD ING WHERE THERE IS LARGE SCALE UNDER INVOICING AND UNDER BILLING OF SA LES. THE LD. AO HAS STATED THAT GENERALLY, FOR OBTAINING SALE CONSIDER ATION OF ACTUAL TRANSACTION FROM THE BUYERS LOCATED OUTSIDE THE HOM ETOWN OR THROUGHOUT INDIA, THE TRADERS OBTAIN PART AMOUNT TH ROUGH CHEQUES AND FOR BALANCE AMOUNT, THEY HAVE BEEN USING THEIR CO NFIDANTS (FACILITY PROVIDERS). THE CONFIDENTS ARE HAVING MULTIPLE BA NK ACCOUNTS EITHER IN THEIR NAME OR IN THE NAMES OF THEIR FAMILY MEMBERS OR CONCERN/FORMS. THEIR BANK ACCOUNT NUMBERS ARE INTIMATED TO THE BUY ERS WHO DEPOSIT THE BALANCE AMOUNT WHICH IS ACTUALLY ON -MONEY, IN THE BANK ACCOUNT OF THE CONFIDANTS. THE BUYERS DEPOSIT AMOUNT BELOW RS. 50,000/- TO AVOID MENTIONING PAN ON PAY-IN-SLIPS. AFTER RECEIPT OF AMOUNT IN BANK ACCOUNT, THE CONFIDANTS I.E, FACILIT Y PROVIDERS WITHDRAW THE AMOUNT OF ON-MONEY AND HAND OVER TO THE BENEFIC IARIES I.E. SELLERS. THE AO HAS THEREFORE, GIVEN HIS PRIMA FACIE FINDING THAT THE ASSESSEE IS FOUND PRIMA FACIE ENGAGED IN PROVIDING FACILITY TO BRING CASH PAYMENTS OF THE MARBLE TRADERS BY ALLOWING THEM TO USE HER B ANK ACCOUNT WHICH IS IN CONFORMITY WITH THE PREVAILING MARKET PRACTICE IN THIS REGION. 2.4 THE SAID PRIMA FACIE FINDING BY THE AO IS ON TH E BASIS OF STATEMENT OF THE ASSESEEE AND HER HUSBAND WHICH HAVE BEEN REC ORDED DURING THE COURSE OF SURVEY. WITH A VIEW TO ARRIVE AT A DEFIN ITIVE FINDING AND TO CORROBORATE THE SAID STATEMENTS GIVEN BY THE ASSESS EE IN TERMS OF ACTING AS FACILITY PROVIDERS, THE AO HAS ASKED THE ASSESSEE SPECIFIC QUESTIONS DURING THE COURSE OF ASSESSMENT PROCEEDIN GS WHEREBY THE ASSESSEE WAS ASKED TO PROVIDE PARTY-WISE DETAILS OF DEPOSITS MADE IN ALL THE BANK ACCOUNTS AS WELL AS NAMES AND ADDRESSE S OF ALL THE ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 45 BENEFICIARIES/MARBLE TRADERS TO WHOM THE CASH WAS W ITHDRAWN AND HANDED OVER BY THE ASSESSEE. 2.5 IN COMPLIANCE, THE ASSESSEE HAS STATED THAT THE DETAILS OF MARBLE TRADERS ALONGWITH ADDRESSES WERE FURNISHED TO THE INVESTIGATION WING WHO HAS CARRIED OUT THE SURVEY, RECORDED HER AND HE R HUSBANDS STATEMENT AND ALSO OBTAINED VARIOUS EXERCISE BOOK, DIARIES AND LOOSE PAPERS. ON PERUSAL OF THE STATEMENT OF ASSESSEES HUSBAND WHICH WAS RECORDED DURING THE COURSE OF SURVEY AND PLACED ON RECORD, WE FIND THAT IN RESPONSE TO VARIOUS QUESTIONS SUCH AS QUESTION NO. 11,14,15,16 & 19 WHICH ARE RAISED IN THE CONTEXT OF VARIOUS EXERCIS E BOOK, DIARIES AND LOOSE PAPERS FOUND DURING THE COURSE OF SURVEY, THE ASSESSEES HUSBAND HAS STATED THAT ALL THESE DOCUMENTS CONTAINED DATA IN TERMS OF NAMES AND ADDRESSES OF VARIOUS PARTIES WHO HAVE DEPOSITED THE MONEY IN HER VARIOUS BANK ACCOUNTS AND ALSO DETAILS OF VARIOUS M ARBLE TRADERS/BENEFICIARIES TO WHOM THAT MONEY BELONGS. 2.6 HERE THE FUNDAMENTAL QUESTION THAT ARISES FOR C ONSIDERATION IS WHERE CASH HAS BEEN FOUND DEPOSITED IN THE BANK ACC OUNTS MAINTAINED BY THE ASSESSEE, THE ONUS TO PROVE THAT CASH BELONG S TO THE ASSESSEE OR TO SOMEONE ELSE LIES ON WHOM- ON THE ASSESSEE OR ON THE REVENUE. IN THIS REGARD, WE REFER TO THE DECISION OF HONBLE SUPREME COURT IN CASE OF CHUHARMAL VS CIT (1988) 172 ITR 0250 WHEREIN THE HONBLE SUPREME COURT HAS LAID DOWN THE FOLLOWING PROPOSITION IN LA W: THE HIGH COURT IN ITS ORDER NOTED THAT THE RAIDING PARTY BY VIRTUE OF THE SEARCH ENTERED INTO THE BEDROOM OF THE ASSESSEE ON 12TH MAY, 1973, AND SEIZED THE WATCHES. A PANCHNAMA WAS PREPARED. T HE DEPARTMENT FOUND THAT THE ASSESSEE WAS THE OWNER. SEC. 110 OF THE EVIDENCE ACT IS MATERIAL IN THIS RESPECT AND THE HIGH COURT RELIED ON THE SAME WHICH STIPULATES THAT WHEN THE QUESTION IS WHETHER ANY PE RSON IS OWNER OF ANY-THING OF WHICH HE IS SHOWN TO BE IN POSSESSION, THE ONUS OF PROVING THAT HE IS NOT THE OWNER IS ON THE PERSON WHO AFFIR MS THAT HE IS NOT THE OWNER. IN OTHER WORDS, IT FOLLOWS FROM THE WELL-SET TLED PRINCIPLE OF LAW ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 46 THAT NORMALLY, UNLESS THE CONTRARY IS ESTABLISHED, TITLE ALWAYS FOLLOWS POSSESSION. IN THE FACTS OF THIS CASE, INDUBITABLY, POSSESSION OF THE WRIST- WATCHES WAS FOUND WITH THE PETITIONER. THE PETITION ER DID NOT ADDUCE ANY EVIDENCE, FAR LESS DISCHARGE THE ONUS OF PROVIN G THAT THE WRIST- WATCHES IN QUESTION DID NOT BELONG TO THE PETITIONE R. HENCE, THE HIGH COURT HELD, AND IN OUR OPINION RIGHTLY, THAT THE VA LUE OF THE WRIST- WATCHES IS THE INCOME OF THE ASSESSEE. IN THIS CONN ECTION, REFERENCE MAY BE MADE TO THE VIEWS EXPRESSED BY JUSTICE TULZAPURK AR, AS HIS LORDSHIP THEN WAS, OF THE BOMBAY HIGH COURT IN THE CASE OF J .S. PARKAR VS. V.B. PALEKAR (1974) 94 ITR 616 (BOM) : TC42R.1775, WHERE , ON A DIFFERENCE OF OPINION BETWEEN JUSTICE DESHPANDE AND JUSTICE MUKHI , JUSTICE TULZAPURKAR AGREED WITH JUSTICE DESHPANDE AND HELD ON THE QUESTION WHETHER THE EVIDENCE ESTABLISHED THAT THE PETITIONE R WAS THE OWNER OF THE GOLD SEIZED, THOUGH THERE WAS NO DIRECT EVIDENC E PLACED BEFORE THE TAXING AUTHORITIES TO PROVE THAT THE PETITIONER HAD ACTUALLY INVESTED MONEYS FOR PURCHASING THE GOLD IN QUESTION, THE INF ERENCE OF THE OWNERSHIP OF THE GOLD IN THE PETITIONER IN THAT CAS E RESTED UPON CIRCUMSTANTIAL EVIDENCE. THERE ALSO GOLD WAS SEIZED FROM A MOTOR LAUNCH BELONGING TO THE PETITIONER IN THAT CASE. TH ERE, A CONTENTION WAS RAISED THAT THE PROVISION IN S. 110 OF THE EVIDENCE ACT WHERE A PERSON WAS FOUND IN POSSESSION OF ANYTHING, THE ONUS OF PR OVING THAT HE WAS NOT THE OWNER WAS ON THE PERSON WHO AFFIRMED THAT H E WAS NOT THE OWNER, WAS INCORRECT AND INAPPLICABLE TO TAXATION P ROCEEDINGS. THIS CONTENTION WAS REJECTED. THE HIGH COURT OF BOMBAY H ELD THAT WHAT WAS MEANT BY SAYING THAT THE EVIDENCE ACT DID NOT APPLY TO THE PROCEEDINGS UNDER THE ACT WAS THAT THE RIGOUR OF THE RULES OF E VIDENCE CONTAINED IN THE EVIDENCE ACT WAS NOT APPLICABLE BUT THAT DID NO T MEAN THAT WHEN THE TAXING AUTHORITIES WERE DESIROUS OF INVOKING TH E PRINCIPLES OF THE ACT IN PROCEEDINGS BEFORE THEM, THEY WERE PREVENTED FRO M DOING SO. SECONDLY, ALL THAT S. 110 OF THE EVIDENCE ACT DOES IS THAT IT EMBODIES A SALUTARY PRINCIPLE OF COMMON LAW JURISPRUDENCE WHIC H COULD BE ATTRACTED TO A SET OF CIRCUMSTANCES THAT SATISFY IT S CONDITIONS. ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 47 2.7 IN LIGHT OF ABOVE, IT IS CRYSTAL CLEAR THAT WHE RE THE CASH IS FOUND IN POSSESSION OF THE ASSESSEE BY VIRTUE OF DEPOSITS IN HER BANK ACCOUNTS MAINTAINED AND OPERATED BY HER, THE ONUS IS ON THE ASSESSEE TO DISCHARGE THE BURDEN THAT CASH DOESNT BELONG TO HE R AND BELONG TO THE MARBLE TRADERS. FURTHER, THE ASSESSEE HAS TO ADDUC E NECESSARY EVIDENCE TO SUBSTANTIATE HER CLAIM. 2.8 THE NEXT QUESTION THAT ARISES FOR CONSIDERATION IS WHETHER IN THE INSTANT CASE, THE ASSESSEE HAS DISCHARGED HER ONUS IN TERMS OF EXPLAINING THE NATURE AND SOURCE OF DEPOSITS AND WI THDRAWALS IN VARIOUS BANK ACCOUNTS THROUGHOUT THE YEAR. THE ASSESSEE H AS STATED IN HER STATEMENT RECORDED DURING THE COURSE OF SURVEY THAT SHE HAS GIVEN THE PARTICULARS OF THE DEPOSITORS AND THE BENEFICIARIES TO THE INVESTIGATION WING. ADMITTEDLY, THE ASSESSEE WAS THEREFORE HAVIN G KNOWLEDGE AND ACCESS TO THE INFORMATION/DATA IN TERMS OF VARIOUS DEPOSITERS AND THE BENEFICIARIES. THE ASSESSEE COULD HAVE SUBMITTED THE SAID INFORMATION/DATA TO THE AO DURING THE COURSE OF ASS ESSMENT PROCEEDINGS. THERE IS NOTHING ON RECORD TO SUGGEST THAT THE ASSESSEE WAS NOT HAVING ACCESS TO THE SAID INFORMATION OR W AS PREVENTED BY SUFFICIENT CAUSE FROM SHARING THESE INFORMATION WI TH THE AO. IT IS NOT THE PLEA OF THE ASSESSEE ALL THESE DOCUMENTS WERE S EIZED DURING THE COURSE OF SURVEY AND SHE WAS NOT HAVING ACCESS TO A LL THESE DOCUMENTS WHICH WERE ADMITTEDLY MAINTAINED BY HER WHILE TRANS ACTING THROUGH HER BANK ACCOUNTS. IN OUR VIEW IT IS FOR THE ASSESSEE I N WHOSE BANK ACCOUNTS THE MONEY HAS BEEN FOUND DEPOSITED TO EXPLAIN THE N ATURE AND SOURCE OF SUCH DEPOSITS AND IT IS IN RESPECT OF EVERY SUCH TRANSACTION, THE ASSESSEE HAS TO PROVIDE THE NECESSARY EXPLANATION T O THE AO. SIMILARLY, THE CLAIM OF THE ASSESEEE THAT THE MONEY WAS WITHDR AWN AND GIVEN TO THE VARIOUS BENEFICIARIES HAS TO BE EXPLAINED FOR E ACH OF THE TRANSACTIONS AND THE NECESSARY LINKAGE/NEXUS HAS TO BE ESTABLISHED BY THE ASSESSEE. THE SAME IS IN CONFORMITY WITH THE P ROPOSITION OF LAW LAID DOWN BY THE HONBLE RAJASTHAN HIGH COURT IN THE CASE OF R.S. RATHORE 212 ITR 350 (RAJ.). IN THAT CASE, EVEN THOUGH THE DECISION WERE RENDERED IN THE CONTEXT OF SECTION 68, TO OUR MIND THE SAME IS EQUALLY ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 48 RELEVANT FOR FACTS UNDER CONSIDERATION EVEN THOUGH THE ASSESSEE HAS NOT MAINTAINED BOOKS OF ACCOUNTS AND THE AO HAS NOT INV OKED SECTION 68 SPECIFICALLY IN THE INSTANT CASE. THE HONBLE HI GH COURT HAS OBSERVED AS UNDER: SEC. 68 REFERS TO CASH CREDITS WHICH ARE FOUND IN THE BOOKS OF THE ASSESSEE. IF THE EXPLANATION OFFERED BY THE ASSESSE E IS NOT SATISFACTORY, THEN THE SUM SO CREDITED MAY BE CHARGED TO INCOME-T AX AS INCOME OF THE ASSESSEE IN THE PREVIOUS YEAR. THE BURDEN, THER EFORE, IS ON THE ASSESSEE TO EXPLAIN SATISFACTORILY WITH REGARD TO T HE AMOUNTS WHICH HAVE BEEN CREDITED IN THE BOOKS OF ACCOUNT BY THE A SSESSEE. THE SOURCE AND THE NATURE OF THE RECEIPT HAS TO BE PROVED BY T HE ASSESSEE, AND IF HE FAILS TO PROVE SATISFACTORILY THE SOURCE AND NATURE OF THE AMOUNT RECEIVED, THE ASSESSING AUTHORITY IS ENTITLED TO DR AW AN INFERENCE THAT THE RECEIPT IS ASSESSABLE INCOME OF THE ASSESSEE. T HE TRIBUNAL HAS CAST DOUBTS WITH REGARD TO THE INVESTMENTS AND HAS EVEN OBSERVED THAT SOME OF THEM ARE NOT EVEN GENUINE. A DUTY WAS CAST ON THE TRIBUNAL TO HAVE EITHER REMITTED THE MATTER TO THE CIT(A) OR TO THE ASSESSING AUTHORITY TO FIND OUT THE CORRECT POSITION. THERE M AY BE A NUMBER OF CREDITORS OF SIMILAR NATURE, BUT THE ASSESSEE HAS T O DISCHARGE HIS BURDEN IN RESPECT OF ALL OF THEM. THE BURDEN WAS TO BE DIS CHARGED BY THE ASSESSEE AND ALL THE CREDITORS WERE NOT PRODUCED, T HEIR ADDRESSES WERE NOT GIVEN AND COGENT REASONS WERE GIVEN BY THE ITO. WHEN THE TRIBUNAL WAS OF THE VIEW THAT SOME OF THE INVESTMENTS WERE N OT GENUINE IT SHOULD NOT HAVE UPHELD THE ORDER OF THE CIT(A) AND THE PROPER COURSE WAS TO SET ASIDE THE ORDER OF THE CIT(A) WITH A DIR ECTION TO EITHER ALLOW SUCH AMOUNTS FOR WHICH THE ASSESSEE HAS BEEN ABLE T O PROVE SATISFACTORILY THE INVESTMENT OR TO GIVE HIM THE OP PORTUNITY TO PROVE SUCH UNEXPLAINED INVESTMENTS. THE OBSERVATIONS OF T HE TRIBUNAL MAKES IT CLEAR THAT THE TRIBUNAL ITSELF WAS IN DOUBT ABOU T THE CORRECTNESS OF ITS OWN CONCLUSION WHEN IT OBSERVED THAT SOME OF THE CA SH CREDITS WERE NOT GENUINE. THUS, THE FINDING RECORDED BY THE TRIBUNAL THAT SOME OF THE CASH CREDITS WERE NOT GENUINE VITIATES THE ORDER PA SSED BY IT. THE BURDEN TO BE DISCHARGED BY THE ASSESSEE HAS NOT BEE N DISCHARGED AND ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 49 THE ORDER OF THE CIT(A) COULD HAVE BEEN CONFIRMED O NLY IF THE TRIBUNAL WAS SATISFIED THAT ALL THE INVESTMENTS WERE SATISFA CTORILY EXPLAINED. THE TRIBUNAL ITSELF WAS NOT IN A POSITION TO FEEL SATIS FIED WITH REGARD TO THE EXPLANATION SUBMITTED AND OBSERVED THAT SOME OF THE INVESTMENTS WERE NOT GENUINE. IT WAS NOT JUSTIFIED ON THE PART OF TH E TRIBUNAL IN SUCH A CASE TO UPHOLD THE ORDER OF THE CIT(A). WHILE EXPLA INING THE VARIOUS CREDITS AND INVESTMENTS, IT MAY BE POSSIBLE THAT TH E ASSESSEE MAY BE SUCCESSFUL IN EXPLAINING SOME OF THEM, BUT THAT DOE S NOT BY ITSELF MEAN THAT THE ENTIRE INVESTMENTS HAVE TO BE CONSIDERED A S EXPLAINED. EVEN LAPSE OF TIME OR INABILITY OF THE ASSESSEE WOULD NO T MAKE THE UNEXPLAINED INVESTMENT AN EXPLAINED ONE. IT IS EACH AND INDIVIDUAL ENTRY ON WHICH THE MIND HAS TO BE APPLIED BY THE TAXING A UTHORITY WHEN AN EXPLANATION IS OFFERED BY THE ASSESSEE. IF NO EXPLA NATION HAS BEEN OFFERED IN RESPECT OF A PARTICULAR ENTRY, THE TAXIN G AUTHORITY WILL BE JUSTIFIED IN COMING TO THE CONCLUSION THAT THE SAID INVESTMENT IS UNEXPLAINED. IT IS NOT THE TOTALITY OF THE CREDIT E NTRIES WHICH ARE TO BE ALLOWED OR TO BE DISALLOWED. THIS WORK HAS TO BE DO NE ON THE BASIS OF THE EXPLANATION OFFERED FOR DIFFERENT ENTRIES AND I F THE EXPLANATION OF THE ASSESSEE IS ACCEPTABLE ON THE BASIS OF THE EVID ENCE PRODUCED BEFORE THE TAXING AUTHORITY, THE TRIBUNAL CAN COME TO THE CONCLUSION THAT SUCH INVESTMENT IS FULLY EXPLAINED. IN THESE CIRCUMSTANC ES, THE TRIBUNAL WAS NOT JUSTIFIED IN CONFIRMING THE ORDER OF THE CIT(A) AND THERE IS CONTRADICTION IN ITS DECISION IN HOLDING THAT ALL I NVESTMENTS CANNOT BE TREATED AS UNEXPLAINED THOUGH SOME OF THEM ARE CERT AINLY NOT GENUINE. THE MATTER IS REMITTED BACK TO THE TRIBUNAL TO CONS IDER EACH INDIVIDUAL INVESTMENT FOR WHICH AN EXPLANATION HAS BEEN GIVEN. IF THE TRIBUNAL IS SATISFIED WITH THE EXPLANATION SUBMITTED BY THE ASS ESSEE, THEN THE INVESTMENT TO THAT EXTENT HAS TO BE ALLOWED AND THE ENTIRE SUM CANNOT BE ALLOWED IN GENERAL. (EMPHASIS SUPPLIED) 2.9 IN OUR VIEW, MERELY BY MAKING A STATEMENT BEFOR E THE ASSESSING OFFICER THAT THE DETAILS OF THE DEPOSITORS AND THE BENEFICIARIES WERE SUBMITTED TO THE INVESTIGATION WING, THE ONUS CAST ON THE ASSESSEE IS NOT DISCHARGED. IT IS FOR THE ASSESSEE TO EXPLAIN EACH AND EVERY ENTRY OF ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 50 DEPOSIT AND WITHDRAWAL IN THE BANK ACCOUNTS AND COR ROBORATE IT WITH THE DETAILS MENTIONED IN THE NOTEBOOKS AND OTHER LO OSE PAPERS FOUND DURING THE COURSE OF SURVEY. THERE IS NOTHING ON RE CORD TO SUGGEST THAT ANY SUCH EXPLANATION AND RECONCILIATION OF VARIOUS TRANSACTIONS WERE SUBMITTED EITHER DURING THE COURSE OF SURVEY OR DUR ING THE ASSESSMENT PROCEEDINGS OR EVEN DURING THE APPELLATE PROCEEDING S. ONCE THE SAID EXERCISE HAS BEEN UNDERTAKEN AND EXAMINED, THE QUES TION OF LOOKING AT THE CIRCUMSTANTIAL EVIDENCES OR THE THEORY OF PROBA BILITY AS TO WHETHER THE ASSESSEE HAS THE NECESSARY INFRASTRUCTURE TO UN DERTAKE MARBLE TRADING CAN BE LOOKED AT. WHERE THE TRANSACTION DE TAILS ARE AVAILABLE, THE SAME SHOULD TAKE PRECEDENCE OVER THE CIRCUMSTAN TIAL EVIDENCE. THE ASSESSING OFFICER THEREAFTER HAS TO APPLY HIS DISCR ETION AND SEE WHETHER HE IS COMFORTABLE WITH THE EXPLANATION OF THE ASSES SEE OR NOT AND THEN TAKE A FINAL VIEW IN THE MATTER. 2.10 HAVING SAID THAT, WE ARE ALSO INTRIGUED BY TH E INACTION ON THE PART OF THE REVENUE AND IN PARTICULAR THE AO WHEREBY HE HAS FAILED TO CONSIDER THE DETAILS OF THE DEPOSITORS AND BENEFICI ARIES AS CLAIMED TO BE SUBMITTED BY THE ASSESSEE DURING THE COURSE OF SURV EY. IDEALLY, THE AO SHOULD HAVE CONFRONTED THE ASSESSEE WITH THE DETAIL S FOUND DURING THE SURVEY AND SOUGHT AN EXPLANATION REGARDING VARIOUS DEPOSITS AND WITHDRAWALS IN RESPECT OF VARIOUS BANK ACCOUNTS MAI NTAINED BY THE ASSESSEE, THE DETAILS IN RESPECT OF WHICH HAS BEEN OBTAINED BY THE AO BY ISSUING NOTICES CALLING FOR THE INFORMATION FROM TH E VARIOUS BANKS. IT SEEMS TO US THAT THE REASON FOR INACTION ON THE PAR T OF THE AO IS ACCOUNT OF AO NOT HAVING NECESSARY RECORDS OF SURVEY MAINTA INED BY THE INVESTIGATION WING. THERE THUS SEEMS TO BE A CLEAR LACK OF CO-ORDINATION BETWEEN THE INVESTIGATION WING AND THE ASSESSING OF FICER HANDLING THE ASSESSMENT. WE DO NOT SEE A JUSTIFIABLE REASON ESP ECIALLY WHERE THE CASE OF THE ASSESSEE ALONGWITH OTHER SIMILAR ASSESS ES WERE CENTRALIZED BEFORE A SINGLE ASSESSING AUTHORITY, WHY THE SURVEY RECORDS CANNOT BE SHARED WITH THE SAID AUTHORITY SO THAT THE EFFORTS INITIATED THROUGH SURVEY CAN LEAD TO A LOGICAL CONCLUSION BY ARRIVING AT THE APPROPRIATE ASSESSMENT IN THE HANDS OF RIGHT PERSONS. THE FACT IS THAT HUGE CASH HAS ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 51 BEEN FOUND DEPOSITED IN THE BANK ACCOUNTS MAINTAINE D BY THE ASSESSEE AND IT IS THE ASSESSEES PLEA THAT MONEY DOES NOT B ELONG TO HER AND IT BELONGS TO SOME OTHER BENEFICIARIES. THE MONEY THER EFORE BELONGS TO SOMEONE WHO SHOULD BE BROUGHT TO TAX AS PER LAW WHE RE THE PLEA OF THE ASSSESSEE IS ACCEPTED. 2.11 NOW LOOKING AT THE ORDER OF THE LD CIT(A), WE FIND THAT EVEN LD CIT(A) HAS MERELY GONE THROUGH THE SURVEY REPORTS A ND THE STATEMENTS RECORDED DURING THE COURSE OF SURVEY. HOWEVER, AS WE HAVE NOTED ABOVE, WITH A VIEW TO ARRIVE AT A DEFINITIVE FINDIN G, THERE IS A NECESSITY TO CORROBORATE THE SAID STATEMENTS GIVEN BY THE ASS ESSEE IN TERMS OF ACTING AS FACILITY PROVIDERS. AND FOR THAT, INFORM ATION RELATING TO PARTY- WISE DETAILS OF DEPOSITS MADE IN ALL THE BANK ACCOU NTS AS WELL AS NAMES AND ADDRESSES OF ALL THE BENEFICIARIES/MARBLE TRADE RS TO WHOM THE CASH WAS WITHDRAWN AND HANDED OVER BY THE ASSESSEE IS RE QUIRED TO BE EXAMINED. IT IS FOR THE ASSESSEE TO EXPLAIN EACH AN D EVERY ENTRY OF DEPOSIT AND WITHDRAWAL IN THE BANK ACCOUNTS AND COR ROBORATE IT WITH THE DETAILS MENTIONED IN THE NOTEBOOKS AND OTHER LO OSE PAPERS FOUND DURING THE COURSE OF SURVEY AND THE NECESSARY LINKA GE/NEXUS HAS TO BE ESTABLISHED BY THE ASSESSEE. THERE IS NOTHING ON RE CORD TO SUGGEST THAT ANY SUCH EXPLANATION AND RECONCILIATION OF VARIOUS TRANSACTIONS WERE SUBMITTED DURING THE APPELLATE PROCEEDINGS OR EXAMI NED BY THE LD CIT(A). 2.12 IN OUR VIEW, THE MATTER REQUIRES A DEEPER AND A COORDINATED EXAMINATION BY THE AUTHORITIES AT THE HIGHER LEVEL TO BRING THE CORRECT FACTS ON RECORD WHICH SHOULD CONCLUSIVELY ESTABLIS H THAT EITHER THE ASSESSEE IS THE OWNER OF THE MONEY FOUND DEPOSITED IN HER BANK ACCOUNTS AS CLAIMED BY THE AO OR THE ASSESSEE IS ME RELY A FACILITATOR AND EARNS COMMISSION INCOME AS CLAIMED BY THE ASSES SEE. ACCORDINGLY, WE SET-ASIDE THE MATTER TO THE FILE OF THE LD CIT(A ) TO EXAMINE THE MATTER AFRESH WITH THE FOLLOWING DIRECTIONS: ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 52 (1) THE ASSESSEE SHALL PROVIDE ALL THE REQUISITE D ETAILS IN TERMS OF NAMES AND ADDRESS AND OTHER REQUISITE PARTICULARS OF THE DEPOSITORS AS WELL AS OF THE BENEFICIARIES; (2) THE ASSESSEE HAS TO EXPLAIN THE NATURE AND SOU RCE OF THE TRANSACTIONS IN TERMS OF DEPOSITS AND ESTABLISH THE NECESSARY LINKAGE BETWEEN THE DEPOSITS AND THE SUBSEQUENT WITHDRAWALS TO VARIOUS INDIVIDUAL BENEFICIARIES; (3) THE LD CIT(A) SHALL CALL FOR THE RECORDS MAIN TAINED BY THE INVESTIGATION WING IN RESPECT OF THE SURVEY PROCEE DINGS AND CONFRONT THE SAME TO THE ASSESSEE TO PROVIDE HER A SUITABLE OPPORTUNITY; (4) THE BENEFICIARIES TO BE CONFRONTED WITH THE DET AILS SUBMITTED BY THE ASSSESSEE AND CALL FOR THEIR CONFIRMATION AND/OR PE RSONAL APPEARANCES AND/OR COORDINATE WITH THEIR RESPECTIVE CITS/ASSESS ING OFFICERS; AND (5) NEEDLES TO SAY, BOTH THE PARTIES SHALL BE PROVI DED SUITABLE OPPORTUNITY AND THEY SHALL EQUALLY COOPERATE AND SH ALL SUBMIT NECESSARY EXPLANATION/INFORMATION/DOCUMENTS AS AVAILABLE AND REQUIRED BY THE LD CIT(A). 2.13 WITH THE ABOVE DIRECTIONS, WE SET-ASIDE THE M ATTER TO THE FILE OF THE LD CIT(A) FOR A FRESH EXAMINATION AND THE AP PEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 8.5 WITH THESE DIRECTIONS, WE SET-ASIDE THE MATTER TO THE FILE OF THE LD CIT(A) TO EXAMINE THE SAME A FRESH. THE GROUNDS TA KEN BY THE ASSESSEE COMPANY ARE THUS ALLOWED FOR STATISTICAL P URPOSES. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 01/05/2017. ITA NO. 241/JP/2015 M/S HEDA MARBLES PVT. LTD. VS. ITO WARD, KISHANGARH 53 SD/- SD/- DQY HKKJR FOE FLAG ;KNO (KUL BHARAT) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 01/05/2017. * GANESH*. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S HEDA MARBLES PVT. LTD., 2. IZR;FKHZ@ THE RESPONDENT- ITO WARD-KISHANGARH 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 241/JP/2015} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR