Sh. Sudhir Mishra, Farrukhabad V. I.T.O.-2(2), Farrukhabad

ITA 242/AGR/2012

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0496 (ITAT-AGRA)
• Duration Of Justice: 6 year(s) 11 month(s) 18 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 16-05-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 28-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: UTKARSH DIXIT
• Keywords: Income from undisclosed sources; Source of fund; Application of stay; TDS
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 205/AGRA/ 2012 ASSESSMENT YEAR 2008-09 INCOME TAX OFFICER VS. SHRI SUDHIR MI SHRA, WARD-2(2), . 4/28, NUNHAI STREET FARRUKHABAD FARRUKHABAD ITA NO. 242/AGRA/ 2012 ASSESSMENT YEAR 2008-09 SHRI SUDHIR MISHRA, VS. INCOME TAX OFFICER 4/28, NUNHAI STREET WARD-2(2), FARRUKHABAD FARRUKHABAD (PAN ALDPM7812N) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI WASEEM ARSHAD, SR. D.R. RESPONDENT BY : SHRI UTKARSH DIXIT, ADVOCATE DATE OF HEARING : 16.05.2013 DATE OF PRONOUNCEMENT : 31.05.2013 ORDER PER A.L. GEHLOT,ACCOUNTANT MEMBER: THESE ARE CROSS APPEALS FILED BY THE REVENUE AND A SSESSEE AGAINST THE ORDER OF LEARNED CIT(A), GHAZIABAD DATED 09.02.2012 FOR A .Y. 2008-09. ITA NO.205/AGRA/2012 ITA NO. 242/AGRA/ 2012 A.YS. 2008-09 2 2. THE GROUNDS RAISED IN THESE CROSS APPEAL ARE REP RODUCED AS BELOW:- ITA NO. 205/AGRA/2012 BY THE REVENUE:- 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN LAW AND ON FACTS WHILE RESTRICTING THE ADDITION OF RS.83,93,869/- TO RS.16,78,774/- ON ACCOUNT OF UNACCOUNTED RECEIPTS O F HIRING CHARGES IGNORING THE FACTS BROUGHT ON RECORD BY THE A.O. BO TH DURING ASSESSMENT PROCEEDINGS AND ALSO DURING REMAND PROCE EDINGS. 2. THE LD COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.11, 55,100/- ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS IN BANK TAKING THIS AM OUNT AS INCLUDED IN THE ADDITION OF RS.16,78,774/- ON THE BASIS OF HIS OWN PRESUMPTION AND WITHOUT HAVING ANY DOCUMENTARY EVIDENCE OF FOR DOIN G SO. IN THIS REGARD ASSESSEE COULD NOT PROVE GENUINENESS OF THE CASH DEPOSITED IN THE BANK. 3. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN LAW AND ON FACTS WHILE TELESCOPING THE ADDITION OF RS.1,44,000/- IN ADDITION OF RS.16,78,774/- ON ACCOUNT OF ZERO HOUSE HOLD EXPENSES AS APPEARING IN BANK STATEMENT SHOWN BY THE ASSESSEE W ITHOUT APPRECIATING THE FACT THAT THESE EXPENSES HAS NOT B EEN DISCLOSED BY THE ASSESSEE IN HIS COMPUTATION OF TOTAL INCOME IN THE YEAR UNDER CONSIDERATION. THE ASSESSEE HAS NO OTHER SOURCES OF INCOME ALSO FROM WHICH HE CAN COVER UP THE HOUSE HOLD WITHDRAWALS. ITA NO. 242/AGRA/2012 BY THE REVENUE:- 1. THAT LEARNED CIT(A) PASSED THE IMPUGNED ORDER D ATED 09.02.2012 ON THE BASIS OF REMAND REPORT SENT BY L EARNED AO, BUT REMAND REPORT SENT BY LD. AO DIDNT BROUGHT INTO TH E PICTURE, THE FACT THAT ASSESSEE HAS PRODUCED ALL THE RELEVANT DOCUMEN TS AND HAS CLARIFIED BEYOND DOUBT THAT HE HAS NOT CLAIMED TDS MENTIONED IN HIS 26 AS STATEMENT. ITA NO.205/AGRA/2012 ITA NO. 242/AGRA/ 2012 A.YS. 2008-09 3 3. THE ASSESSEE FILED STAY APPLICATION NO. 01/AGRA/ 2012 WHICH WAS DISMISSED BY THE ITAT VIDE ORDER DATED 20.07.2012 AS NONE WAS PRESENT ON THE DATE OF HEARING OF THE STAY APPLICATION. IT WAS NOTED THAT THE ASSESSEE WAS NOT INTERESTED IN PROSECUTING THE STAY APPLICATION. 4. THE FIRST GROUND RAISED IN THE CROSS APPEALS IS IN RESPECT OF ADDITION ON ACCOUNT OF UNACCOUNTED RECEIPTS OF HIRING CHARGES 5. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS ENGAGED IN TRUCK PLYING BUSINESS. DURING THE ASSESSMENT PRECEDING THE A.O. NOTED THAT THE CASE OF THE ASSESSEE HAS BEEN SELECTED IN SCRUTINY THROUGH CASS . THE INFORMATION REGARDING THE ASSESSEE FROM MET ITS DETAILS HAS BEEN GENERATE D THROUGH AST AND FOUND THAT THE ASSESSEE HAVE EARNED MORE COMMISSION ON HIRING CHARGES AS CONTRACTOR OF TRUCK PLYING BUSINESS FROM DIFFERENT PARTIES TO WHOSE GOO DS LUGGAGE HAS BEEN TRANSPORTED AND RECEIVED HIRE CHARGES DURING THE F.Y. 2007-08 F ROM THE FOLLOWING PARTIES :- S.NO. NAME OF THE PARTY FROM WHICH RECEIVED HIRE CHARGES AMOUNT TDS DEDUCTED 1. M/S DSC LTD., RUPAPUR, SWARAJPUR, DISTT.- HARDOI. RS.7690840/- RS.174275/- 2. M/S KISHAN PASU AAHAR UDYOG, DUDU, JAIPUR RS.126492/- RS.2613/- 3. M/S CATTLE FEED PLANT, NADBAI RS.554937/- RS.128 83/- 4. M/S OM SREE TRADERS, INDORE RS.21600/- RS.445/- ITA NO.205/AGRA/2012 ITA NO. 242/AGRA/ 2012 A.YS. 2008-09 4 5. TOTAL RS.8393869/- RS.190216/- 6. THE INFORMATION WAS CALLED FOR UNDER SECTION 133 (6) OF THE I.T. ACT FROM THE CONCERNED PARTIES AND OUT OF ABOVE THREE PARTIES NA MELY M/S DSC LTD., RUPAPUR, SWARAJPUR, DISTT.-HARDOI, U.P. VIDE LETTER DATED 15 .12.2010 SENT THE DETAILS (FORM NO.16A) OF PAYMENTS MADE TO THE ASSESSEE FROM M/S I NDORE RAIPUR TRANSPORT CO., FARRUKHABAD. GROSS RECEIPTS AND TDS HAVE BEEN PAID AND DEPOSITED IN GOVT. ACCOUNT ALSO. M/S OM SHREE TRANDERS, INDORE AND AND M/S CATTLE FEED PLANT, NADBAI SENT REPLY ALONG WITH FORM NO.16A WHICH WAS PLACED ON RECORD. AFTER ITS DETAILS GENERATED IN AST, IT WAS FOUND THAT THE AS SESSEE HAS DEPOSITED IN SAVING BANK ACCOUNT IN ARYAVRAT GRAMIN BANK, VIJAY KHAND, GOMTI NAGAR, BRANCH LUCKNOW CASH OF RS.11,55,100/- ON 31.03.2008 IN SIN GLE DAY WHICH INFORMATION IS PLACED ON RECORD. INFORMATION FROM ARYAVRAT GRAMIN BANK, LUCKNOW WAS ALSO CALLED FOR UNDER SECTION 133(6) OF THE ACT. THE CEN TRAL JAIL BRANCH, FARRUKHABAD HAS CONFIRMED THE DEPOSITS IN DIFFERENT DATES AS CA SH IN A/C NO.1549 AGGREGATING TO RS.11,55,100/-. 7. IT WAS SUBMITTED BEFORE A.O. BY THE ASSESSEE THA T THE ASSESSEE HAS NO CONCERN OF RECEIPTS AND TDS WHICH HAVE BEEN SHOWN I N 26AS. THE ASSESSEE HAS DENIED TO GROSS RECEIPT OF RS.83,93,869/- AND TDS O F RS.1,90,216/- ON ACCOUNT OF HIRING CHARGES. ITA NO.205/AGRA/2012 ITA NO. 242/AGRA/ 2012 A.YS. 2008-09 5 8. THE RELEVANT REPLY NOTED BY CIT(A) IN HIS ORDER READS AS UNDER :- (PAGE NO.6) THAT I HAVE NO CONCERN WITH RECEIPTS AND TDS AS S TATED IN ABOVE MENTIONED NOTICE. IT IS TRUE THAT DETAILS SHOWN IN 26AS AND TDS DURING THE YEAR IN QUESTION ARE IN MY NAME AND PAN, BUT IT IS ALSO TRUE THAT TILL TODAY NEITHER I HAVE RECEIVED THE AMOUNT NOR THE TDS AND ALSO I HAVE NO CONCERN WITH THESE RECEIPTS AND TDS. IT MAY BE POSSIBLE THA T SOME ONE BY MISTAKE OR OVERSIGHT, HAVE USED MY NAME & PAN FOR HIS OWN R ECEIPTS AND TDS PREVIOUSLY I HAVE RECEIVED THE TDS AND ALSO THE REF UND FROM THE DEPARTMENT BUT DURING THE YEAR IN QUESTION TRANSACT ION OF THIS KIND HAVE BEEN NOT MADE BY ME UPTO THE BEST OF MY KNOWLEDGE A ND BELIEF. 9. AFTER CONSIDERING THE ABOVE REPLY, THE A.O. DID NOT SATISFY WITH THE REPLY GIVEN BY THE ASSESSEE AND HE MADE THE ADDITION OF R S.83,93,869/-. 10. SIMILARLY THE ASSESSEE DENIED CASH DEPOSITED ON 31.03.2008 IN SAVING BANK ACCOUNT, ARYA VRAT GRAMIN BANK BRANCH, GOMTI NAGAR, LUCKNOW. IT WAS SUBMITTED THAT THE ASSESSEE HAS NO CONNECTION WITH THE ACCOUNT WHICH WAS SUBMITTED THAT THE AMOUNT DEPOSITED IN LUCKNOW BRAN CH MAY BE SAME WHICH IS REFLECTED IN FARRUKHABAD SAVING BANK ACCOUNT NO. 75 49, BECAUSE THE GRAND TOTAL OF BOTH AMOUNT FIGURE IS RS.11,55,100/-. THE A.O. A LSO MADE ADDITION OF RS.11,55,100/- ON ACCOUNT OF AMOUNT DEPOSITED IN BA NK ACCOUNT AS UNDER :- (PAGE NO.7, CIT(A)) AMOUNTS DEPOSITED IN SB A/C AT ARYA VART GRAMIN B ANK, VIJAY KHAND, GOMTI NAGAR, LUCKNOW CASH DEPOSITED AT RS.1155100/- ON 31.03.2008 WHERE AS IN ARYA VART GRAMIN BANK, CENTRAL JAIL, F ARRUKHABAD IN SB A/C NO. 7549 HAVE BEEN DEPOSITED IN DIFFERENT DATES IN CASH ARE SAME AMOUNT. ITA NO.205/AGRA/2012 ITA NO. 242/AGRA/ 2012 A.YS. 2008-09 6 THE CONTENTION OF THE ASSESSEE ACCEPTED AS ASSESSEE MENTIONED THAT DEPOSITS ARE SAME. REGARDING THE AMOUNTS DEPOSITED IN SB A/C NO.754 9, IN ARYAVRAT GRAMIN BANK, CENTRAL JAIL BRANCH, FARRUKHABAD DEPOS ITED IN CASH IN DIFFERENT DATES, ASSESSEE HAVE NOT PRODUCED THE PRO PER EVIDENCES REGARDING THE SOURCES OF MONEY DEPOSITED IN ABOVE BANK, HENCE IN THE ABSENCE OF PROPER EVIDENCES AMOUNT DEPOSITED IN THE BANK A/C A T RS.1155100/- HAS BEEN ADDED BACK IN THE TOTAL INCOME OF THE ASSESSEE U/S 69A OF THE I.T. ACT, 1961 IN THE YEAR CONSIDERED. THE ASSESSEE HAVE NOT GIVEN ANY DETAILS OF ABOVE MONEY DEPOSITS SOURCE IN BANK. 11. THE A.O. ALSO MADE ADDITION ON ACCOUNT OF HOUSE HOLD EXPENDITURE OF RS.1,44,000/- AS UNDER :- (PAGE NO.8, CIT(A)) THE ASSESSEE REPLIES HAVE BEEN CONSIDERED BUT NOT ACCEPTED IN TOTO. THE ASSESSEE HAS MENTIONED IN HIS REPLY DATED 25.11 .2010 HIS HOUSE WITHDRAWALS MAY BE 6 OR 7 THOUSAND PER MONTH ONLY. THERE ARE 2 SCHOOL GOING CHILDREN AND SELF AND WIFE I.E. 4 MEMBERS SIZ E OF FAMILY EXPENSES CAN NOT BE MEET OUT IN RS.7,000/- P.M. THE ASSESSEE IS ALSO MAINTAINING SOCIAL AND BUSINESS CIRCLE RELATIONS IN THE MARKET, HENCE IT WILL BE REASONABLE TO ESTIMATE TO MEET OUT ALL THE EXPENSES BY EXPANDING RS.12,000/- PER MONTH OR ANNUALLY AT RS.1,44,000/-. AS PER ASSESSEES BAN K A/C NO HOUSE HOLD WITHDRAWALS APPEARS WHICH AMOUNTS ARE DEBITED IN AS SESSEE S.B. A/C NO.7549 APPEARS FOR OTHER NATURE WORK OF PAYMENTS. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, IT APPEARS INCOME TH AT ASSESSEE HAVE MEET OUT THE HOUSE HOLD EXPENSES FROM THE INCOME OF OTHE R SOURCES WHICH HAVE NOT BEEN DISCLOSED DURING THE YEAR ADDED BACK IN TH E TOTAL INCOME OF ASSESSEE AT RS.1,44,000/- U/S 69 OF THE I.T. ACT 19 61. 12. THE CIT(A) DELETED THE ADDITION OF RS.11,55,100 /- ON ACCOUNT OF DEPOSIT IN BANK AND RS.1,44,000/- ON ACCOUNT HOUSEHOLD EXPENSE S GIVING SET OFF OF ADDITION OF RS. 16,78,774/-SUSTAINED IN TRUCK HIRING RECEIPT AC COUNT. THE RELEVANT FINDING OF THE CIT(A) ARE REPRODUCED AS UNDER :- (PAGE21 TO 23) ITA NO.205/AGRA/2012 ITA NO. 242/AGRA/ 2012 A.YS. 2008-09 7 8.1 G.O.A.NO.1 IT IS ON RECORD THAT TDS CERTIFICATES WERE ISSUED ON HIRING CHARGES OF RS.83,93,869/- WHEREIN PAN OF THE ASSESSEE IS MENTI ONED CLEARLY. THE ASSESSEE WAS GIVEN DUE OPPORTUNITY IN THE ASSESSMENT PROCEEDINGS BUT THE MATTER REMAINED UN- CLARIFIED. BEFORE ME, THE APPELLANT CLAIMED THAT TH ESE WERE HIRING CHARGES RECEIVED BY HIS ELDER BROTHR SHRI PANKAJ MISHRA, WHO IS RUNN ING A TRANSPORT ACTIVITY IN THE NAME AND STYLE OF INDORE RAIPUR TRANSPORT COMPANY. AS THE LATER NAME WAS ALSO FOUND MENTIONED IN THE IMPUGNED TDS CERTIFICATES, T HERE APPEARED TO BE SOME VALID POSSIBILITY OF CONFUSION AND HENCE I DIRECTED THE A.O. TO RE-V ERIFY THE APPELLANTS PROMISE THAT HE WOULD SHOW THESE RECEIP TS IN THE BOOKS OF HIS BROTHER SHRI PANKAJ MISHRA. UNFORTUNATELY AS THE TWO REMAND REPORTS CLEARLY SU GGEST, THE APPELLANT HAS NOT BEEN ABLE TO EFFECT ANY SUCH FAVOURABLE VERIFIC ATION, IN SPITE OF REPEATED OPPORTUNITIES DURING ASSESSMENT PROCEEDINGS AND EVE N NOW DURING REMAND PROCEEDINGS. THE BEHAVIOR OF THE APPELLANT ITSELF IS A STRONG I NDICATOR THAT THE APPELLANT WANTS TO HIDE THE REAL PICTURE. IT IS QUI TE LIKELY THAT APPELLANT IS ALSO RUNNING SOME TRUCKS IN UN-ACCOUNTED MANNER AND ON H IS INDICATION AND PERSUATION THE PARTIES HAVE DRAWN TDS CERTIFICATES MENTIONING HIS (APPELLANTS) PAN BUT NOT HIS NAME (RATHER THE NAME OF INDORE RAIPUR TRANSPOR T CO., WHICH APPEARS TO BE OF HIS BROTHER). HAD THERE NOT BEEN ANY SURREPTITIOUS ACTIVITIES/ TRANSACTIONS; THE APPELLANT WOULD HAVE, BY NOW, EASILY COME FORWARD W ITH THE RESPECTIVE BOOKS AND ACCOUNTS AND WOULD HAVE BEEN ABLE TO SHOW THAT THES E HIRING CHARGES OF RS.83,93,869/- WERE RECEIVED AND ACCOUNTED FOR IN T HE BOOKS OF SOME OTHER ENTITY. IN SUCH FACTS AND CIRCUMSTANCES; I AM CONSTRAINED TO HOLD THAT IT IS THE APPELLANT ONLY WHO HAS RECEIVED THESE HIRING CHARGE S AND IS LIABLE TO TAX ON THE SAME. HOWEVER, IT WILL BE UN-REASONABLE TO TAX THE ENTIRE AMOUNT OF HIRING CHARGES RECEIPTS BECAUSE IF THE RECEIPTS HAVE BEEN KEPT OUT OF THE BOOKS; ONLY THE CORRESPONDING INCOME SHOULD BE BROUGHT TO TAX AFTER ESTIMATING THE EXPE NDITURE INCURRED ON A REASONABLE BASIS. MY REASONABLE ESTIM ATE IS THAT IN ABSENCE OF ANY DETAILS AND PROOF OF SUCH EXPENSES; 20% OF SUCH HIR ING RECEIPTS SHOULD BE BROUGHT TO TAX. THUS, THE ADDITION OF RS.83,93,869/- IS TO BE RESTRICTED TO RS.16,78,774- (20% OF RS.83,93,869/-). 8.2 G.O.A. NO.2 ITA NO.205/AGRA/2012 ITA NO. 242/AGRA/ 2012 A.YS. 2008-09 8 ON THE ISSUE OF UN-EXPLAINED CASH DEPOSIT AMOUNTING TO RS.11,55,100/-; I DO NOT FIND SOME FORCE IN APPELLANTS SUBMISSION AND D ETAILS (BANK STATEMENT) THAT THIS IS NOT ONE TIME DEPOSIT; RATHER VARIOUS CASH INSTAL LMENTS HAVE BEEN DEPOSITED FROM TIME TO TIME OVER THE YEAR AGGREGATING TO THIS AMOU NT. GIVEN SUCH PICTURE; IT WILL NOT BE TENABLE TO UPHOLD THIS ADDITION BECAUSE, FIR STLY, AT THE MOST, THE PEAK DEPOSIT, BEING CASH DEPOSIT OF RS.1,90,000/-, CAN B E TREATED AS PEAK UNEXPLAINED DEPOSIT AND SECONDLY, AND MORE IMPORTANTLY, SUCH DE POSIT WOULD BE TREATED EXPLAINED AS A PART OF UTILIZATION OF INCOME OF RS. 16,78,774/- EARNED FROM PLYING TRUCK IN AN UNACCOUNTED MANNER. SO THERE WILL NOT B E ANY NEED OF SEPARATE ADDITION. ADDITION OF RS.11,55,000/- IS THEREFORE, DELETED. 8.3 G.O.A.NO.3 THE ADDITION OF RS.1,44,000/- IS UPHELD IN PRINCIPL E, IN VIEW OF DETAILED REASONING GIVEN BY THE A.O. I AGREE WITH THE A.O. T HAT INADEQUATE HOUSE HOLD WITHDRAWALS HAVE BEEN CLAIMED BY THE APPELLANT AND IN FACT NO HOUSE HOLD WITHDRAWAL APPEARS IN BANK ACCOUNT. ALSO THE ESTIMA TION OF RS.12000/- PER MONTH HOUSE HOLD AND PERSONAL EXPENSES IS VERY VERY REASO NABLE. THUS, ADDITION OF RS.1,44,000/- IS UPHELD IN PRINCI PLE. HOWEVER, AS IN CASE OF ABOVE GROUND OF APPEAL; THERE IS NO NEED FOR UPHOLD ING THIS ADDITION OF RS.1,44,000/- SEPARATELY, ONCE UNACCOUNTED INCOME F ROM PLYING OF TRUCKS TO THE EXTENT OF RS.16,78,774/- HAS BEEN UPHELD IN GROUND OF APPEAL NO.1. TO THAT EXTENT RS.1,44,000/- WOULD STAND TELESCOPED. 13. WE HAVE HEARD LEARNED REPRESENTATIVES OF THE PA RTIES AND RECORDS PERUSED. AS REGARDS THE FIRST GROUND OF CROSS APPEAL, AS THE CI T(A) HAS PARTLY ALLOWED THE RELIEF, THEREFORE, THE ASSESSEE AND REVENUE BOTH ARE IN APP EAL. WE FIND THAT AS PER RECORD WITH THE A.O. HIRING RECEIPT OF RS.83,93,869/- WHER EIN PAN OF THE ASSESSEE IS MENTIONED CLEARLY. THE A.O. AND CIT(A) BOTH ASKED F OR NECESSARY EXPLANATION ITA NO.205/AGRA/2012 ITA NO. 242/AGRA/ 2012 A.YS. 2008-09 9 FROM THE ASSESSEE. EVEN THE CIT(A) HAS PROVIDED OPP ORTUNITY FOR GIVING NECESSARY EXPLANATION BY CALLING REPORT FROM THE A.O. THE CON TENTION OF THE ASSESSEE IS THAT THE HIRING CHARGES RECEIVED BY HIS BROTHER SHRI PAN KAJ MISHRA, WHO IS RUNNING A TRANSPORT AGENCY IN THE NAME AND STYLE OF INDORE RA IPUR TRANSPORT COMPANY BUT THE ASSESSEE HAS FAILED TO FURNISH THE NECESSARY EV IDENCE AND EXPLANATION. THE CIT(A) DIRECTED THE A.O. TO RE-VERIFY THE ASSESSEE AS HE PROMISED THAT HE WOULD SHOW THESE RECEIPTS IN THE BOOKS OF HIS BROTHER SHR I PANKAJ MISHRA, BUT THE ASSESSEE HAS FAILED TO DO SO. 13.1 HONBLE MADRAS HIGH COURT IN THE CASE OF COMM ISSIONER OF INCOME- TAX VS KRISHNAVENI AMMAL, 158 ITR 826 (MADRAS) WHER EIN IT HAS BEEN HELD THAT THE LAW OF EVIDENCE MANDATES THAT IF THE BEST EVIDE NCE IS NOT PLACED BEFORE THE COURT, AN ADVERSE INFERENCE CAN BE DRAWN AS AGAINST THE PERSON WHO OUGHT TO HAVE PRODUCED IT. IN THAT CASE, THERE WERE CROSSED CHEQU ES, BUT THEY WERE NOT PRODUCED. 13.2 SIMILAR IS THE CIRCUMSTANCES IN THE CASE UNDE R CONSIDERATION THAT THE ASSESSEE SIMPLY CONTENDED THAT THE RECEIPT BELONGED TO HIS ELDER BROTHER BUT FAILED TO FURNISH THE NECESSARY EVIDENCE BEFORE THE REVENU E AUTHORITIES AND BEFORE US ALSO. AS REGARDS MERIT OF THE CASE, WE NOTICED THAT THE A.O. MADE ADDITION ON THE GROUND OF AMOUNT OF FREIGHT WHEREAS THE CIT(A) WAS OF THE VIEW THAT ONLY PROFIT IS TO BE ADDED. UNDER THE CIRCUMSTANCES VIEW TAKEN BY THE CIT(A), IS CORRECT ITA NO.205/AGRA/2012 ITA NO. 242/AGRA/ 2012 A.YS. 2008-09 10 THEREFORE, IN THE LIGHT OF THE FACT, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A) IN SUSTAINING THE ADDITION OF RS.16,78,774/- ON ACCOUNT OF HIRING CHARGES, THE ORDER OF CIT(A) IS CONFIRMED. THUS, THE GROUND NO.1 OF THE CROSS APPEAL IS DISMISSED. GROUND NO.2 13.3 THE REVENUE HAS ALSO RAISED TWO MORE ISSUES. GROUND NOS. 2 & 3 PERTAIN TO DELETION OF ADDITION RS.11,55,100/-. THE CIT(A) DELETED THE SAID ADDITION OF RS.11,55,000/- ON THE GROUND THAT HE HAS ALLOWED SET OFF AGAINST THE ADDITION OF RS.16,78,774/- CONFIRMED ON ACCOUNT OF TRUCK HIRING RECEIPT AND THE AMOUNT OF RS.11,55,100/- AND RS.1,44,000/- WERE NOT SEPARATEL Y ADDED. THE CIT(A) IN PRINCIPLE UPHELD THE ADDITION BUT RELIEF WAS ALLOWE D BY ALLOWING BENEFIT OF ITS TELESCOPING AS ABOVE. AFTER HEARING LEARNED REPRESE NTATIVES OF THE PARTIES, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A) AS AG AINST THE ORDER OF RS. 11,55,100/- AND RS.1,44,000/- AS THE ADDITION OF RS.16,78,774/- HAS BEEN SUSTAINED WHICH IS SUFFICIENT FOR SET OFF OF THESE TWO ADDITION OF RS. 11,55,100/- AND RS.1,44,000/-. THE REVENUE HAS FAILED TO POINT OUT ANY CONTRARY MATERI AL. IN THE LIGHT OF THE FACT, THE ORDER OF THE CIT(A) IS CONFIRMED. ITA NO.205/AGRA/2012 ITA NO. 242/AGRA/ 2012 A.YS. 2008-09 11 14. IN THE RESULT, BOTH THE APPEALS OF REVENUE AS W ELL AS ASSESSEE ARE DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT) SD/- SD/- (BHAVNESH SAINI) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTA NT MEMBER AMIT/ COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, AGRA BENCH, AGRA 6. GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, AGRA TRUE COPY