SRI SWARN SINGH, DHANBAD V. ACIT CIRCLE-2, DHANBAD

ITA 249/RAN/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0246 (ITAT-RANCHI)
• Duration Of Justice: 2 year(s) 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-03-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 05-10-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NISHA ORAON SINGHMARR J
• Assessee Lawyers: NITIN PASARI
• Keywords: Gift; Income from undisclosed sources; Search and seizure; Opportunity of being heard; Opportunity of cross examination; Corroborative evidences
• Section: 143(3); 143(2); 13(2); 13; 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RANCHI BENCH, RANCHI BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 249 / RAN / 2017 ASSESSMENT YEAR :2004-05 SRI SWARN SINGH TELEPHONE EXCHANGE ROAD, DHANBAD-826001 [ PAN NO.AHGPS 3250 F ] V/S . ACIT, CIRCLE-2, DHANBAD /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI NITIN PASARI, ADVOCATE /BY RESPONDENT SMT. NISHA ORAON SINGHMARR, JCIT-DR /DATE OF HEARING 06-03-2020 /DATE OF PRONOUNCEMENT 06-03-2020 / O R D E R PER BENCH (ORAL):- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2004-05 ARISES AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)-DHANBADS ORDE R DATED 25.07.2017 PASSED IN CASE NO.142/DHN/2006-07 INVOLVING PROCEED INGS U/S 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD SHRI NITINI PASARI, LEARNED AUTHORIZED REPRES ENTATIVE AND MRS. NISHA ORAON SINGHMARR REPRESENTING THE DEPARTMENT. CASE FILE PERUSED 2. THE ASSESSEES FORMER SUBSTANTIVE GRIEVANCE CHAL LENGES CORRECTNESS OF BOTH THE LOWER AUTHORITIES ACTION ADDING A SUM OF 108,21,520/- AS INCOME FROM UNDISCLOSED SOURCES. THE CIT(A)S DETAILED DIS CUSSION AFFIRMING THE ASSESSING OFFICERS ACTION TO THIS EFFECT READS AS UNDER:- ITA NO.249/RAN/2017 A.Y. 2004-05 SRI SWARN SINGH VS. ACIT CIR-2, DHN PAGE 2 [2] STATED BRIEFLY, FACTS OF THE CASE ARE THAT THE APPELLANT WAS AN ASSISTANT COMMISSIONER OF INCOME TAX (OSD). HIS SOU RCES OF INCOME WERE SALARY AND BANK INTEREST, DIVIDEND INCOME FROM VARIOUS COMPANIES. FOR THE ASSESSMENT YEAR 2004-05, THE APP ELLANT FILED HIS RETURN OF INCOME ON 24/03/2005 DECLARING A TOTAL IN COME OF RS.1,89,423/-. THE CASE WAS SELECTED FOR SCRUTINY VIDE THE CCITS LETTER NO.CCIT/PAT/TECH-I/SCRUTINY/VOL.-III/2004-05/6463 D ATED 30/03/2005. ACCORDINGLY, NOTICE U/S 143(2) OF THE INCOME TAX AC T, 1961 WAS ISSUED TO THE APPELLANT ON 30/03/2005. THE APPELLANT HIMSELF APPE ARED BEFORE THE LD.AO FROM TIME TO TIME AND FURNISHED THE DOCUMENTS THAT WERE IN HIS POSSESSION . [ 2.1 ] THE LD.AO HAS STATED THAT IN THIS CASE A SEARCH W AS CONDUCTED BY THE CBI, DHANBAD AT THE RESIDENTIAL PREMISES OF THE APP ELLANT ( SRI SWARN SINGH ) ON 22/01/2004. AS PER THE APPELLANT'S CONTENTION, A LL HIS DOCUMENTS WERE SEIZED BY THE CBI DURING THEIR SEARCH OPERATION AND , LATER, COPY OR ONLY A SMALL PORTION OF IT WAS SUPPLIED BY T HE CBI TO THE APPELLANT. [ 2.2 ] THE CBI FILED ITS CHARGE SHEET ON 26/10/2006 U/S 13(2) READ SECTION 13(1)(E) OF PREVENTION OF CORRUPTION ACT, 1988. THE SAME WAS OBTAINED BY THE LD.AO FROM CBI OFFICE AND PLACED IN THE CASE RECORD S (ANNEXURE-C, PAGE NOS. C-1 TO C-57). VIDE THIS CHARGE SHEET, THE CBI HAS A LLEGED THAT SRI SWARN SINGH WAS FOUND IN POSSESSION OF DISPROPORTIONATE ASSETS DURING THE TIME OF THE SEARCH CONDUCTED BY THE CBI. [ 2.3 ] THE CHARGE SHEET OF THE CBI INTER ALIA STATES ' D URING THE PERIOD FEBRUARY 1991 TO JANUARY 2004 HAS BEEN IN POSSESSION OF DISP ROPORTIONATE ASSETS THROUGH CORRUPT AND ILLEGAL MEANS TO THE RUNE OF RS .1,26,01,322/- ON CALCULATION OF HIS EXPENDITURE ALL SOURCES OF INCOM E, MOVEABLE & IMMOVABLE ASSETS AND HIS INVESTMENT,' [ 2.4 ] AFTER PERUSING THE CHARGE SHEET BF THE CBI THE LD .AO HAS NOTED THAT THE FOLLOWING PERTAINED TO THE ASSESSMENT YEAR 2004-05 : 1. CASH FOUND IN THE RESIDENCE DURING SEARCH ON 22. 01.2004 RS.1,08,21,520/- 2. CASH FOUND IN THE LOCKER NO. 138 MAINTAINED AT S BI DENOBLI CAMPUS, DHANBAD IN THE NAME OF SURENDRA KAUR & SWAR N SINGH - RS.4,70,200/-. [ 2.6 ] THE LD.AO HAS FURTHER NOTED THAT ON PAGE NO. C-39 OF THE SAID CHARGE SHEET, THE CBI FURTHER CONTENDED : AT THE TIME OF SEARCH OF THE HOUSE OF SWAM SINGH ON 22-01-2004, JEWELLERIES, BOTH IN SILVER AND GOLD WERE FOUND IN THE HOUSE OF SWARN SINGH. ON EVALUATION, THE VALUE OF GOLD JEWELLERIES IN TOTAL WERE FOUND TO BE RS. 3,28,900/- & SILVER JEWELLERIES IN TOTAL RS.1,626/- AT THE CURRENT RATES OF THE DAY. BUT, BENEFITS OF STRIDHAN (PROPER TY OF HOUSEWIFE) TO THESE JEWELLERIES FOUND AT THE HOUSE OF SWARAN SING H HAVE BEEN GIVEN AND THOSE JEWELLERIES HAVE NOT BEEN COUNTED AS ASSE TS OF SWAM SINGH. JEWELLERIES WORTH RS. 4,12,2001- WERE ALSO FOUND IN THE LOCKER NO. 138 ITA NO.249/RAN/2017 A.Y. 2004-05 SRI SWARN SINGH VS. ACIT CIR-2, DHN PAGE 3 MAINTAINED IN THE JOINT NAME OF SWAM SINGH & SUREND RA KAUR IN STATE BANK OF INDIA, DENOBLI CAMPUS BRANCH, DHANBAD. AGAI N, BENEFITS OF STRIDHAN (PROPERTY OF HOUSEWIFE) TO THESE JEWELLERI ES FOUND IN THE LOCKER OF SWARAN SINGH HAVE BEEN GIVEN TO SWAM SINGH AND T HOSE JEWELLERIES HAVE NOR BEEN COUNTED AS ASSETS OF SWARAN SINGH. [ 2.7 ] THE LD.AO HAS FURTHER NOTED THAT IN HIS WRITTEN S UBMISSION BEFORE THE CBI COURT, IN REPLY TO THE CHARGE SHEET FILED BY TH E CBI, THE APPELLANT SRI SWARAN SINGH DENIED THAT ANY CASH WAS FOUND AT HIS RESIDENCE DURING THE SEARCH OF THE CBI. HE SUBMITTED A COPY OF THE SAME WRITTEN SUBMISSION BEFORE THE LD.AO WHERE HE FURNISHED EXPLANATION TO THE CAS H FOUND IN THE LOCKER. THE SAME WAS PLACED IN THE CASE RECORDS (ANNEXURE-B, PA GE NOS. A-I TO A-1.3) BY THE LD.AO. [ 2.8 ] DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS A SUMMON U/S 131 OF THE INCOME TAX ACT, 1961 WAS ISSUED TO THE APPELLAN T ON 04/09/2006 FOR APPEARANCE ON 14/09/2006. ON THE APPOINTED DAY, STA TEMENT OF THE APPELLANT ON OATH WAS RECORDED. THE APPELLANT 'WAS ASKED SPEC IFICALLY ABOUT THE SEIZURE OF RS.1.08 CRORES CASH, AS CLAIMED BY THE CBI, IN I TS MEMORANDUM OF RECOVERY & SEIZURE AND THE AMOUNT OF CASH FOUND IN THE LOCKER. IN HIS STATEMENT BEFORE THE LD.AO, AS REGARDS CASH SEIZURE FROM HIS RESIDENCE, THE APPELLANT DENIED SEIZURE OF THE CASH AND STATED THA T HIS SIGNATURES WERE NOT TAKEN ON THE SEIZURE. AS REGARDS THE CASH SEIZED FR OM THE LOCKER THE APPELLANT STATED THAT THE SAME BELONGED TO HIS FATHER WHO HAD GIVEN THE CASH TO APPELLANT'S WIFE FOR SAFE KEEPING AND WERE PROCEEDS OF THE ENCASH MEN T OF KVP / NSC AND INCOME FROM AGRICULTURE. [ 2.9 ] THE LD.AO HAS STATED IN THE ASSESSMENT ORDER THAT IN ORDER TO EXAMINE THE VERACITY OF THE STATEMENT OF THE APPELLANT, SUM MONS U/ S 131 OF THE IT ACT, 1961 WERE SENT TO THE VARIOUS OFFICERS AND OFFICIAL S OF THE CBI AND THE INDEPENDENT WITNESSES. THEIR STATEMENTS WERE RECORD ED ON OATH, WHICH WERE PLACED IN THE CASE RECORD. THEY WERE ALL ASKED QUES TIONS ABOUT THE SEARCH OPERATION OF THE CBI, THE SEARCH LIST PREPARED BY T HE CBI, THE AMOUNT OF CASH FOUND FROM THE RESIDENTIAL PREMISE OF SRI SWARN SIN GH AND THE SUBSEQUENT DENIAL OF SRI SWARN SINGH ABOUT THIS SEIZURE. [ 2.10 ] STATEMENTS U/S 131 OF THE ACT OF THE FOLLOWING WE RE RECORDED :- 1. STATEMENT OF SRI SANTOSH NARAYAN SINHA, INDEPEND ENT WITNESS, TAKEN OR 10/10/2006. 2. STATEMENT OF SRI ROHIT PARMAR, INDEPENDENT WITNE SS, TAKEN ON 18/10/2006 3. STATEMENT OF SRI PAR. S NATH VERMA, CONSTABLE, C BL, TAKEN ON 23/10/2006 4. STATEMENT OF SRI CHANDRA SHEKHAR PANDEY, CONSTAB LE, CBI, TAKEN ON 26/10/2006. 5. STATEMENT OF SRI DHANANJAY KURNAR SINGH, CONSTAB LE, CBI, TAKEN ON 02/11/2006 ITA NO.249/RAN/2017 A.Y. 2004-05 SRI SWARN SINGH VS. ACIT CIR-2, DHN PAGE 4 6. STATEMENT OF SRI VIVEK DUTT, DY. SP, CBI, TAKE N ON 02/11/2006 [ 2.11 ] THE LD.AO HAS REPRODUCED THE RELEVANT PORTIONS OF THE STATEMENTS OF EACH OF THE ABOVE OFFICIALS/WITNESSES. I FIND THAT EACH OF THE ABOVE NAMED PERSONS AFFIRMED AND CONFIRMED THE SEIZURE OF CASH OF RS. 1,08,21,520/- FROM THE RESIDENCE OR THE APPELLANT. [ 2.12 ] THE LD.AO HAS FURTHER STATED IN THE ASSESSMENT OR DER THAT AFTER HAVING TAKEN STATEMENTS OF THE OFFICERS AND OFFICIALS INVO LVED IN THE SEARCH OPERATION AND THE TWO INDEPENDENT WITNESSES, AGAIN A SUMMON W AS ISSUED TO SRI SWARN SINGH FOR APPEARANCE BEFORE HIM ON 11/12/2006. HE W AS SHOWN THE STATEMENTS OR ALL THE PERSONS AS NAMED ABOVE. HE WA S THEN CONFRONTED WITH THE STATEMENTS TAKEN AS ABOVE. THE LD.AO ALLOWED TH E APPELLANT AN OPPORTUNITY TO CROSS EXAMINE THE PERSONS WHOSE STAT EMENTS WERE RECORDED DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS. TH E LD.AO HAS RECORDED THAT ON THE QUESTION WHETHER HE WOULD LIKE TO CROSS -EXAMINE THE INDEPENDENT WITNESS, SRI SWAN'} SINGH SAID THAT SINCE THE MATTE R WAS SUB-JUDICE, HE DID NOT WANT TO CROSS-EXAMINE THE WITNESSES. [ 2.13 ] THE LD.AO THEN CONCLUDED THAT A PERUSAL OF THE AB OVE MADE IT AMPLY CLEAR THAT THE ARGUMENTS OF THE APPELLANT WERE AT T HE BEST A DESPERATE ATTEMPT OF A PERSON ACCUSED OF HAVING DISPROPORTIONATE ASSE T. THERE WERE A NUMBER OF CBI OFFICERS AND OFFICIALS WHO CONFIRMED THE REC OVERY OF RS. 1,08,21,520/- FROM THE HOUSE OF SRI SWARN SINGH ON 22/01/2004. TH E TWO INDEPENDENT WITNESSES TOO ATTESTED TO THIS FACT. HE, THEREFORE, STATED THAT HE HAD NO OTHER OPTION BUT TO REJECT THE STATEMENTS OF THE: APPELLA NT AND HOLD THAT RS.1,08,21,520/- WAS INDEED FOUND IN THE RESIDENCE OF THE APPELLANT (SRI SWARN SINGH) ON 22/01/2004. THE APPELLANT EARNED TH IS AMOUNT FROM UNDISCLOSED SOURCES. HE, THEREFORE, ADD THIS AMOUNT TO THE TOTAL INCOME OF THE APPELLANT FOR THE A.Y 2004-05 AS INCOME FROM UNDISC LOSED SOURCES . [ 2.14 ] ON THE QUESTION OF RS. 4,70,200/ - FOUND IN THE L OCKER NO. 138 OF THE- SB1, DENOBLI CAMPUS, DHANBAD, THE APPELLANT (SRI SW AM SINGH) FURNISHED THE FOLLOWING EXPLANATION : 1. RECEIVED BY WIFE SMT. SURENDER KAUR FROM HIS FAT HER SRI .JASWANT SINGH -RS.1,00,000/- 2. BELONGING TO BROTHER SRI BALBIR SINGH, WHICH WAS THE MATURITY VALUE OF VARIOUS NSCS/KVPS, KEPT WITH FATHER SRI JASWANT SINGH, WHO LATER HANDED IT OVER TO WIFE SMT. SURENDER KAUR FOR SAFEK EEPING - RS. 1,32,000/ - 3. RECEIVED AT THE TIME OF DEATH OF MOTHER BALWANT KAUR BY SRI JASWANT SINGH AND LATER HANDED OVER TO SRNT. SUREND ER KAUR - RS. 15,000/-. 4. CASH RECEIVED BY SRI. JASWANT SINGH AT THE TIME OF CLOSURE OF CLOTH BUSINESS IN 1994 RS.22,50,000/-. OUT OF THIS RS.2, 23,200/-WAS GIVEN BY HIM TO SMT. SURENDER KAUR. BESIDES HIS WIFE HAD SOME STRIDHAN TOO - RS. 2,23,200/-. ITA NO.249/RAN/2017 A.Y. 2004-05 SRI SWARN SINGH VS. ACIT CIR-2, DHN PAGE 5 [ 2.15 ] THE LD.A.O HAS NOTED THAT IN SUPPORT OF (4) ABOVE , THE APPELLANT COULD ONLY PRESENT COPIES OF THE RETURNS OF INCOME FILED BY HIS FATHER U/S 115K ( NOW DELETED ) OF THE INCOME TAX ACT,1961 FILED ON 31.03.1993 AN D 31.03.1994. THIS, IN THE OPINION OF THE LD.AO, DID NOT PROVE TH AT HIS FATHER INDEED HAD RECEIVED RS. 2,50,000/- AT THE TIME OF CLOSURE OF B USINESS AND THAT HE GAVE OFF AN AMOUNT OF RS. 2,23,200/- TO THE WIFE OF THE APPE LLANT. THE LD.AO HELD THAT SMT. SUI-ENDER KAUR, HOWEVER, MAY HAVE HAD SOME AMO UNT OF STRIDHAN, WHICH WAS REFLECTED IN THE JEWELLERIES FOUND IN THE SAME LOCKER. THE APPELLANT COULD NOT FURNISH SUFFICIENT PROOF REGARDING POINT NO. (4) ABOVE HE, THEREFORE, REJECTED THE EXPLANATION FURNISHED BY THE APPELLANT IN POINT NO. (4) ABOVE HOWEVER, RS. 20,000/- WAS ALLOWED AS THE STRIDHAN O F SMT. SURENDER KAUR AND THE REMAINING RS. 2,00,200/- WAS BEING ADDED TO THE TOTAL INCOME OF THE APPELLANT FROM UNDISCLOSED SOURCES FOR THE A.Y. 200 4-05. TOTAL INCOME OF THE APPELLANT WAS ASSESSED AT RS. 1,12,11,143/- [ 3 ] AGGRIEVED BY THE ORDER OF ASSESSMENT, THE APPELLA NT HAS FILED THIS APPEAL RAISING 11 GROUNDS OF APPEAL (THE SAME ARE DISCUSSE D BELOW) [ 4 ] SRI SWARAN SINGH (APPELLANT] ATTENDED IN RESPONSE TO THE NOTICE ISSUED BY THIS OFFICE AND SUBMITTED THE FOLLOWING : THAT I HAD APPEARED ON 16.08.2007 AND 08.09.2008 BE FORE THE CIT(A) PERSONALLY AND SOUGHT TIME ON THE GROUND THAT I DID NOT RECEIVE MOST OF THE RELIED UPON AND RELEVANT DOCUMENTS BY THAT TIME FROM THE CBI. THAT I AM IN POSSESSION OF ALMOST ALL THE DOCUMENTS REQUIRED FOR CONDUCT OF MY CASE WHICH (IRE WITH MY ADVOCATE WHO IS CONDUCTING THE CRIMINAL CASE BEFORE THE CBI COURT. THAT DURING THE ASSESSMENT PROCEEDINGS THE AO EXAMI NED THREE OFFICIALS NAMELY, SRI PARAS NATH SINHA, CONSTABLE, SRI C S PANDAY, SRI DHANANJAY KUMAR SINGH, CONSTABLE AND SRI VIVEK DUTT , DSP, ALL CBI OFFICIALS. ARID ON THEIR STATEMENT, THE AO HELD REC OVERY OF ALLEGED CASH FROM MY RESIDENCE AND.AXED THE SAME. IN THE CHARGE SHEET WHICH IS THE FINAL DOCUMENT FOR FRAMING OF CHARGE, THE NAMES OF THE FOLLOWING CBI OFFICIALS APPEAR FOR RECOVERY OF CASH UNDER THE COLUMN 'BY WHOM PROVED' SRI- PK.JHA, INSPECTOR, SRI S.N.KHAN, INSPECTOR, SRI UMESH KUMAR, INSPECTOR, SRI SUDHANSHU SHEEKHAR, SUB INSPECTOR. NONE OF THE ABOVE PERSONS WAS EXAMINED BY THE AO WH OSE NAMES ARE MENTIONED IN THE CHARGE SHEET FOR PROVING THE RECOV ERY OF ALLEGED CASH. I HAD CHALLENGED ALLEGATION OF RECOVERY OF ALLEGED CASH B Y THE CBI IMMEDIATELY THEREAFTER DURING THE PERIOD OF CUSTODY ITSELF CHAT NOTHING WAS RECOVERED FROM. MY RESIDENCE IN FORM OF CASH ITA NO.249/RAN/2017 A.Y. 2004-05 SRI SWARN SINGH VS. ACIT CIR-2, DHN PAGE 6 THE CBI CLAIMED TO HAVE PREPARED THREE LISTS DURING THE COURSE OF SEARCH OF MY RESIDENCE. -- SEARCH LIST, ANNEXURE A BEING SUPP LEMENTARY TO THE SEARCH LIST CONTAINING DETAILS OF CASH AND INVENTORY OF HO USE HOLD GOODS BUT ONLY ONE LIST I.E, INVENTORY OF HOUSE HOLD GOODS WAS SHOWN T O ME AND MY SIGNATURE IS PRESENT ON THIS LIST. NEITHER SEARCH LIST NOR ANNEX URE A WAS SHOWN TO ME AND MY SIGNATURE IS NOT THERE. I DO NOT KNOW WHEN AND W HERE THESE DOCUMENTS WERE PREPARED. EVEN THE THREE LISTS CLAIMED TO HAVE BEEN PREPARED BY THE CBI DURING THE COURSE OF SEARCH DO NOT CONTAIN MY SIGNA TURE OF ALL THE OFFICIALS. SEARCH LIST IS SIGNED BY TEN PERSONS, ANNEXURE A IS SIGNED BY AND INVENTORY IS SIGNED BY PERSONS INCLUDING MYSELF . . . MY CASE FOR DISPROPORTIONATE ASSETS IS BEING EXAMIN ED BY THE CBI COURT. AI THE SAME TIME THE SAME POINT OF ALLEGATION HAS BEEN EXAMINED BY THE AO. L AM ALSO TRYING FOR OPINION OF THE LEGAL EXPERT WHET HER ONE ACCUSED CAN BE TRIED BY TWO DIFFERENT GOVERNMENT AUTHORITIES SIMUL TANEOUSLY ON THE ONE AND THE SAME POINT - BY THE CBI COURT ON ONE HAND AND B Y THE ASSESSING OFFICER ON THE OTHER - ON ONE AND THE SAME POINT. MY DATE FOR CBI COURT IS FIXED ON 25.07.2017 AND TH E MATERIAL WITNESS AND MATERIAL EVIDENCES BE EXAMINED. MAY ADVOCATE IS BUS Y IN THAT CONNECTION. MY ADVOCATE FOR INCOME TAX PURPOSE SRI B.P DALMIA IS A LSO BUSY FINALIZING THE INCOME TAX RETURNS OF HIS CLIENTS. THERE ARE SOME MORE SUBMISSIONS TO BE MADE DURING T HE COURSE OF HEARING. IT IS, THEREFORE, REQUESTED TO KINDLY ALLOW ME TWO MONTHS TIME AND THE CASE SHOULD BE FIXED SOMETIME IN OCT. FOR FINAL OPPORTUN ITY SO THAT I MAY BE ABLE TO COLLECT EVIDENCE AND SUBMISSION TO BE PLACED BEFORE YOU HONOUR'. [ 5 ] I HAVE CONSIDERED THE SUBMISSIONS OF THE APPELLAN T WITH REGARD TO THE REQUEST FOR ADJOURNMENT. I FIND THAT THE LD.AO HAS RELIED UPON THE CHARGE SHEET (SEARCH LIST ANNEXURE A) FILED BY THE CBI IN THE COMPETENT COURT. BASED ON THIS EVIDENCE THE LD.AO REQUIRED THE APPELLANT T O SUBMIT EVIDENCE AS REGARDS THE SOURCE OF THE SAME IN TERMS OF THE PROV ISIONS OF THE INCOME TAX ACT 1961. THE APPELLANT DENIED THAT THE CASH WAS SE IZED FROM HIS RESIDENCE. THE LD.AO, IN ORDER TO VERIFY THE CLAIM OF THE APPE LLANT RECORDED THE STATEMENT ITS OF THE OFFICIALS OF THE CBI AND THE INDEPENDENT WITNESSES WERE RECORDED U/S 131 OF THE ACT. HE ALSO ALLOWED THE APPELLANT AN OP PORTUNITY OF CROSS EXAMINING THE WITNESSES WHICH WERE EXAMINED BY THE LD.AO. THIS WAS REFUSED BY THE APPELLANT. I FIND FROM THE STATEMENT OF THE APPELLANT THAT THE PROCEEDINGS WITH REGARD TO DISPROPORTIONATE ASSETS ARE CONTINUING IN THE COMPETENT COURT. THE APPELLANT SUBMITTED THAT THE P ROCEEDINGS IN THE CBI COURT WERE FIXED ON 25.07.2017. HOWEVER, NO EVIDENC E IN THIS REGARD IN THE FORM OF NOTICE/ SUMMONS WAS PRODUCED. THE APPELLANT ALSO DID NOT SPECIFICALLY STATE AS TO WHICH EVIDENCE WAS YET TO BE COLLECTED WHICH COULD AID HIM IN THE IMPUGNED PROCEEDINGS. HE GENERALLY MENTIONED THAT S OME EVIDENCE WAS TO BE COLLECTED FOR SUBMISSION. THE LD.AO HAS RELIED U PON THE CHARGE SHEET AND ANNEXURE A OF THE SEIZURE LIST OF THE CBI. HE HAD A LLOWED THE APPELLANT AN OPPORTUNITY OF CROSS EXAMINATION OF THE WITNESSES W HICH HE HAD EXAMINED. ITA NO.249/RAN/2017 A.Y. 2004-05 SRI SWARN SINGH VS. ACIT CIR-2, DHN PAGE 7 THIS WAS REFUSED BY THE APPELLANT. THE APPELLANT HA S NOT SLATED AS TO WHICH EVIDENCE DOES IT WANT TO RELY ON AND WHICH IS NOT I N HIS POSSESSION AFTER 13 AND A HALF YEARS OF THE SEARCH AND SEIZURE ACTION O F THE CBI AT THE RESIDENCE OF THE APPELLANT. THE ASSERTION OF THE APPELLANT TH AT THE LD.AO DID NOT EXAMINE ANY OF THE PERSONS ON WHOM THE CBI PROPOSES TO RELY UPON IN THE CBI COURT IS ALSO BEREFT OF ANY SUPPORTING EVIDENCE . UNDER THE CIRCUMSTANCES, THE REQUEST FOR ADJOURNMENT IS REFUSED. [ 6 ] COMING TO THE GROUNDS OF APPEAL, I FIND THAT GROU NDS 1, 12 AND 13 ARE GENERAL IN NATURE. NO ARGUMENTS WERE ADVANCED BY TH E APPELLANT WITH REFERENCE TO THESE GROUNDS. THEY ARE, ACCORDINGLY, DISMISSED . [ 7 ] GROUND NO. 2 OF THE APPELLANT IS THAT THE LD.AO D ID NOT ALLOW HIM A REASONABLE OPPORTUNITY OF BEING HEARD. IN THIS REGA RD I FIND THAT THE LD.AO NOT ONLY RECORDED THE STATEMENT OF THE APPELLANT WITH R EGARD TO TILE SEIZURE OF CASH FROM HIS RESIDENCE AND LOCKER AND AFFORDED HIM AN O PPORTUNITY TO HIM TO STATE HIS SIDE OF THE FACTS BUT ALSO OFFERED THE APPELLAN T AN OPPORTUNITY TO CROSS- EXAMINE THE WITNESSES EXAMINED BY THE LD.AO. THIS W AS REFUSED BY THE APPELLANT. UNDER THE CIRCUMSTANCES, I AM OF THE VIE W THAT THE GROUND OF APPEAL DOES NOT HAVE ANY MERIT AND IS THUS, DISMISSED . [ 8 ] GROUNDS 3,4,5 AND 6 ARE TAKEN UP TOGETHER AS THEY RELATE TO THE COMMON POINT OF ADDITION OF RS.1,08,21,520/-. AS STATED AB OVE, THE APPELLANT'S VERSION OF THE SEIZURE OF THE CASH CONTINUES TO BE THAT THE RE IS NO EVIDENCE TO SHOW THAT THE SEIZURE OF CASH WAS MADE FROM HIS RESIDENC E. THE APPELLANT, IN THIS REGARD RELIES ON THE FACT THAT THE SEIZURE LIST DOE S NOT HAVE HIS SIGNATURE OR THE SIGNATURE OF HIS WIFE. THE APPELLANT HAD ALSO RAISE D SOME ISSUES REGARDING THE TIMING OF HIS ARREST AND THE SEIZURE OF CASH. IN TH E NUTSHELL, THE CONTENTION OF THE APPELLANT IS THAT THE CASH DID NOT BELONG TO HI M AND WAS NOT SEIZED FROM HIS RESIDENCE. [ 8.1 ] THE APPELLANT HAD MAINTAINED THE SAME VERSION AT THE TIME OF THE ASSESSMENT PROCEEDING AS WELL. THE LD.AO, THEREFORE , ISSUED SUMMONS TO THE INDEPENDENT WITNESSES AND SOME OF THE OFFICIALS WHO WERE PRESENT AT THE TIME OF SEARCH OPERATION AT THE RESIDENCE OF THE AP PELLANT AND WHO HAD WITNESSED THE SEIZURE OF CASH. AS WOULD BE EVIDENT FROM THE EXTRACTS OF THE STATEMENT S MADE PART OF THE ASSESSMENT ORDER, EACH ONE HAD CATEGORICALLY STATED THAT THE CASH OF RS.1,08,21,520/- WAS SEIZED FROM THE RESIDENCE OF THE APPELLANT ARID THEY HAD WITNESSED THE SEIZURE OF CA SH. IT IS A FACT THAT AFTER RECORDING THE STATEMENTS OF THESE WITNESSES AND THE OFFICIALS OF THE CBI THE LD.AO SHOWED THESE STATEMENTS TO THE APPELLANT AND ALLOWED HIM AN OPPORTUNITY TO CROSS EXAMINE THEM. THIS WAS REFUSED BY THE APPELLANT . 3. MR. PASARI VEHEMENTLY CONTENDS DURING THE COURSE OF HEARING THAT BOTH THE LOWER AUTHORITIES HAVE ERRED IN LAW AND ON FACT S IN ADDING THE IMPUGNED SUM IN ASSESSEES HANDS, WHICH IN FACT NEVER BELONG ED TO HIM. HIS CASE IS ITA NO.249/RAN/2017 A.Y. 2004-05 SRI SWARN SINGH VS. ACIT CIR-2, DHN PAGE 8 THAT THIS ASSESSEE WAS NEVER FOUND IN POSSESSION OF IMPUGNED CASH SUM DURING THE COURSE OF THE ALLEGED CBI SEARCH CONDUCT ED AT HIS PREMISES. AND THAT THE CORRESPONDING CASES REGISTERED PERTAINING TO DISPROPORTIONATE ASSETS AS WELL AS UNDER PREVENTION OF CORRUPTION LAW ARE P ENDING BEFORE HON'BLE JURISDICTIONAL HIGH COURT AND BEFORE THE LEARNED SP ECIAL COURT AT DHANBAD; RESPECTIVELY AND THEREFORE, THE INSTANT APPEAL DESE RVES TO BE ADJOURNED SINE DIE TO AWAIT THE OUTCOME OF THE SAID LIS. LEARNED COUN SEL ALSO QUOTES CAPT. M. PAUL ANTHONY VS. BHARAT GOLD MINES 1999 (2) JUDGEME NTS TODAY 456 (SC) DEFINING CONTOURS OF DISCIPLINARY PROCEEDINGS VIS- -VIS PENDING CRIMINAL ACTION AGAINST AN EMPLOYEE IN SERVICE JURISPRUDENCE. LEARN ED AUTHORIZED REPRESENTATIVE ACCORDINGLY PRAYS THAT THE IMPUGNED ADDITION MADE IN THE ASSESSEES HANDS BE EITHER DELETED OR THE ISSUE BE KEPT PENDING TO AWAIT FINAL OUTCOME OF THE TWIN PENDING LITIGATION (SUPRA). 4. LEARNED DEPARTMENTAL REPRESENTATIVE HAS DRAWN ST RONG SUPPORT FROM CIT(A)S ABOVE EXTRACTED DETAILED FINDINGS UPHOLDIN G THE ASSESSING OFFICERS ACTION MAKING THE IMPUGNED ADDITION. 5. WE HAVE GIVEN OUR FOREGOING DETAILED CONTENTIONS . THERE IS NO DISPUTE BETWEEN THE PARTIES THAT THE PROCEEDINGS UNDER THE PROVISION OF INCOME TAX ACT FOLLOW PREPONDERANCE OF PROBABILITY THAN THAT OF PROVING THE CHARGES BEYOND DOUBT UNDER CRIMINAL LAW. WE KEEP IN MIND TH IS FINE DISTINCTION AND REVERT BACK TO THE FACTS OF THE CASE. IT HAS ALREAD Y COME ON RECORD THAT THIS ASSESSEE WAS FOUND IN POSSESSION OF IMPUGNED CASH S UM TO THE TUNE OF 108,21,526/- DURING CBIS SEARCH. IT IS THUS CLEAR THAT THERE IS NO COGENT EVIDENCE SUPPORTING THE ASSESSEE TO REBUT THE ABOVE STATED RECOVERY DURING INVESTIGATION. WE REITERATE THAT THE ASSESSEES CLA IM OF BEING ELIGIBLE FOR BENEFIT OF DOUBT COULD ONLY BE RAISED BEFORE THE LE ARNED SPECIAL COURTS TRIAL AND NOT IN INCOME TAX PROCEEDINGS BASED OF PREPONDE RANCE OF PROBABILITY. WE ALSO RE-EMPHASIZE HERE THAT HON'BLE APEX COURT DECI SION QUOTED AT THE ASSESSEES BEHEST DOES NOT DEAL WITH ASSESSMENT PRO CEEDINGS IN INCOME TAX ITA NO.249/RAN/2017 A.Y. 2004-05 SRI SWARN SINGH VS. ACIT CIR-2, DHN PAGE 9 LAW. GOING BY THE VERY ANALOGY, WE AFFIRM THE LOWER AUTHORITIES ACTION TREATING THE IMPUGNED CASH FOUND AND SEIZED FROM THE ASSESSE E DURING THE COURSE OF CBIS INVESTIGATION TO THE TUNE OF 108,21,526/- AS HIS UNDISCLOSED INCOME. NECESSARY COMPUTATION INCLUDING THAT OF INTEREST SH ALL FOLLOW AS PER LAW. 6. NEXT COMES YET ANOTHER ADDITION AMOUNT OF 2,02,00,000/- TREATED AS INCOME FROM UNDISCLOSED SOURCE. LEARNED COUNSEL IS FAIR ENOUGH IN SUBMITTING THAT THE IMPUGNED SUM STATED RECOVERED FROM A JOINT LOCKER MAINTAINED IN ASSESSEE AND HIS WIFES NAME. HE ALSO CLARIFIED THA T THE ASSESSEES EXPLANATION BEFORE THE LOWER AUTHORITIES WAS THAT S AME HAD BEEN RECEIVED AS A CASH GIFT FROM HIS WIFES FATHER AT THE TIME OF M ARRIAGE. THERE IS NO COGENT EVIDENCE IN SUPPORT OF THE INSTANT PLEA IN CASE FIL E. WE WISH TO RE-EMPHASISE HEREIN AS WELL THAT HON'BLE APEX COURTS LANDMARK J UDGMENT SUMATI DAYAL VS. CIT 214 ITR 801 (SC) AND CIT VS. DURGA PRASAD MORE (1971) 82 ITR (SC) HOLD THAT ANY EXPLANATION TENDERED UNDER THE PROVIS ION OF THE ACT HAS TO BE CONSIDERED KEEPING IN MIND HUMAN PROBABILITIES AND AFTER REMOVING ALL BLINKERS. WE APPLY THE SAME REASONING MUTATIS MUTANDIS HEREIN AS WELL AND DECLINE THE ASSESSEES FOREGOING EXPLANATION SEEKIN G TO ATTRIBUTE SOURCE OF THE IMPUGNED CASH SUM RECOVERED FROM LOCKER AS GIFT FOR M IN-LAWS SIDE. THIS ADDITION AMOUNT STANDS CONFIRMED. 7. THIS ASSESSEES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE CLOSE OF HEARING ON FRIDAY, 6 TH MARCH 2020 SD/- SD/- ( ) ('# ) (DR. A.L. SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) RANCHI, *DKP, SR.P.S. $- 06/03 /20 20 ITA NO.249/RAN/2017 A.Y. 2004-05 SRI SWARN SINGH VS. ACIT CIR-2, DHN PAGE 10 / COPY OF ORDER FORWARDED TO:- 1 . /APPELLANT-SRI SWARN SINGH TELEPHONE EXCHANGE ROAD, DHANBAD-826001 2 . /RESPONDENT-ACIT, CIR-2,DHANBAD 3. / 2 / CONCERNED CIT RANCHI 4. 2- / CIT (A) RANCHI 5. 5 ##/, /, / DR, ITAT, RANCHI 6. ; / GUARD FILE. BY ORDER/ , SR.PS, (ON TOUR), RANCHI