Appeal details
Counselvise Citation
[2019] 117 COUNSELVISE.COM (IT) 0483 (ITAT-AGRA)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
6 year(s) 11 month(s) 4 day(s)
Appellant
Respondent
Appeal Type
Cross Objection
Pronouncement Date
16-05-2019
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
DB
Next Hearing Date
08-07-2013
Assessment Year
2007-2008
Appeal Filed On
11-06-2012
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. 251/AGRA/2012 ASSTT. YEAR : 2007-08 SHRI RAGHAV GARG, VS. INCOME-TAX OFFICER, MALL ROAD, MORAR, WARD 3(2), GWALIOR. GWALIOR. (PAN : ACOPG 5118 R) ITA NO. 275/AGRA/2012 ASSTT. YEAR : 2007-08 INCOME-TAX OFFICER, SHRI RAGHAV GARG, WARD 3(2), GWALIOR. MALL ROAD, MORAR, GWALIOR. ITA NO. 304/AGRA/2012 ASSTT. YEAR : 2007-08 INCOME-TAX OFFICER, SMT. POONAM GARG, WARD 3(2), GWALIOR. W/O SH. RAGHAV GARG, MALL ROAD, MORAR, GWALIOR (PAN: AEAPG 3776 P) ITA NO. 305/AGRA/2012 ASSTT. YEAR : 2007-08 INCOME-TAX OFFICER, KU. ROMA GARG, WARD 3(2), GWALIOR. D/O. SH. RAGHAV GARG, MALL ROAD, MORAR, GWALIOR (PAN: ALOPG 5380L) ITA NOS.251, 275, 304 TO 306/AGRA/2012 2 ITA NO. 306/AGRA/2012 ASSTT. YEAR : 2007-08 INCOME-TAX OFFICER, SMT. TARA GARG, WARD 3(2), GWALIOR. W/O. LATE SH. LALTA PD. GA RG, MALL ROAD, MORAR, GWALIOR (PAN: AEAPG 3768 F) (APPELLANT) (RESPONDENTS) REVENUE BY : SHRI K.K. MISHRA, JR. D.R. RESPONDENT BY : SH. V. BAPNA & GOPI MANDHAN, C.A. DATE OF HEARING : 08.07.2013 DATE OF PRONOUNCEMENT OF ORDER : 12.07.2013 ORDER PER BHAVNESH SAINI, J.M.: THIS ORDER SHALL DISPOSE OF ALL THE ABOVE DEPARTME NTAL APPEALS AS WELL AS ONE APPEAL OF THE ASSESSEE, WHICH ARE CONNECTED WITH EA CH OTHER. 2. WE HAVE HEARD THE LD. REPRESENTATIVES OF BOTH TH E PARTIES, PERUSED THE FINDINGS OF AUTHORITIES BELOW AND CONSIDERED THE MA TERIAL AVAILABLE ON RECORD. THE APPEALS ARE DECIDED AS UNDER : ITA NO. 251/AGRA/2012 & 275/AGRA/2012 ( RAGHAV GAR G, ASSESSEE): 3. BOTH THE CROSS APPEALS ARE DIRECTED AGAINST THE ORDER OF LD. CIT(A), GWALIOR DATED 30.03.2012 FOR THE ASSESSMENT YEAR 2007-08. ITA NOS.251, 275, 304 TO 306/AGRA/2012 3 4. THE ASSESSEE IN HIS APPEAL CHALLENGED THE ORDER OF LD. CIT(A) IN CONFIRMING THE ADDITION OF RS.20,00,000/- ON ACCOUNT OF ADVANC E MONEY RECEIVED AGAINST AGREEMENT OF SALE OF PLOT. THE REVENUE IN ITS APPEA L CHALLENGED THE ORDER OF LD. CIT(A) IN DELETING THE ADDITION OF RS.65,00,000/- O UT OF TOTAL ADDITION OF RS.85,00,000/-. 5. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS FILED RETURN ON 31.07.2007 DECLARING INCOME OF RS.79,000/- FROM JOB WORK ALONG WITH INTEREST OF RS.15,450/- AND LONG TERM CAPITAL GAIN OF RS.5,106/ -. DURING THE COURSE OF SEARCH CONDUCTED ON 29.06.2006 UNDER THE PROVISIONS OF FOR EIGN EXCHANGE MANAGEMENT ACT 1999 AT THE RESIDENCE OF SHRI SHAILENDRA KUMAR TAMOTIA, RESIDENT OF BHUBANESHWAR, ORRISA, INDIAN CURRENCY OF RS.82,14,5 00/- HAS BEEN RECOVERED AND SEIZED. SHRI TAMOTIA, IN HIS STATEMENT DATED 10.07. 2006, HAS STATED THAT THE SEIZED AMOUNT OF RS.82,14,500/- IS PART OF RS.85,00,000/- RECEIVED BY HIM FROM SHRI RAGHVAV GARG. MALL ROAD, MOTOR, GWALIOR I.E. THE AP PELLANT, AS ADVANCE AGAINST SALE OF HIS (TAMOTIAS) HOUSE SHANKAR-SHANTI AT G WALIOR. THE ASSESSEE VIDE HIS STATEMENT DATED 27.09.2007 RECORDED BY CONCERNED AU THORITIES HAS ALSO ADMITTED THE FACT OF PAYMENT OF RS.85,00,000/- IN CASH TO SH RI S.K. TAMOTIA DURING THE YEAR UNDER CONSIDERATION. THE SOURCE OF CASH PAYMENT HAS BEEN STATED BY THE ASSESSEE TO BE RS.65,00,000/- FROM SALE OF JEWELLERY OF HIS WIF E (MRS.POONAM GARG), HIS ITA NOS.251, 275, 304 TO 306/AGRA/2012 4 MOTHER (SMT. TARA GARG) AND HIS DAUGHTER (KUMARI RO MA GARG). BALANCE AMOUNT OF RS.25,00,000/- HAS BEEN STATED TO BE FUNDS OBTA INED BY HIM AS ADVANCE AGAINST PROPOSED SALE OF HIS PROPERTY. ACCORDINGLY, ASSESSE ES CASE ALONG WITH HIS FAMILY MEMBERS HAS BEEN TAKEN FOR SCRUTINY FOR VERIFICATIO N. THE ASSESSEE AT THE ASSESSMENT STAGE REITERATED THE SAME SUBMISSIONS RE GARDING THE SALE OF JEWELLERY AND ADVANCE RECEIVED FROM SHRI KAUSHAL KISHORE PAWA IYA FOR SALE OF PLOT. THE AO, HOWEVER, MADE ADDITION OF RS.65,00,000/- ON ACCOUNT OF SALE OF JEWELLERY AND TREATED IT AS UNEXPLAINED. WHILE MAKING THE ADDITIO N THE AO MENTIONED AS UNDER : VIDE QUARRY LETTER DATED 16.07.2009 ASSESSEE WAS A SKED TO FURNISH COMPUTATION OF TOTAL INCOME, CALCULATION OF CAPITAL GAIN AND TO EXPLAIN THE SOURCE OF ACQUISITION AND EVIDENCE OF S ALE OF GOLD AND SILVER ORNAMENT. IN COMPLIANCE TO THESE QUARRIES VI DE LETTER DATED 10.08.2009, THE ASSESSEE FILED CAPITAL ACCOUNT AND BALANCE SHEET FOR A.Y.2007-08. IN THE CAPITAL ACCOUNT AN AMOUNT OF RS .12,79,460/- IS FOUND CREDITED ON ACCOUNT OF SALE OF GOLD AND SILVE R ORNAMENTS. DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS NOTICED THAT ASSESSEE ENTERED INTO AN AGREEMENT WITH SHRI SHAILE NDRA KUMAR TAMOTIA ON 23.06.2006 FOR PURCHASE OF HIS IMMOVABLE PROPERTY SITUATED OPPOSITE CIVIL HOSPITAL, MORAR, GWALIOR FO R SALE CONSIDERATION OF RS.1,00,80,000/- AND A SUM OF RS.8 5,00,000/- WAS PAID TO HIM IN CASH AT THE TIME OF AGREEMENT. A COP Y OF SALE AGREEMENT EXECUTED ON 23.06.2006 BETWEEN THE ASSESSEE AND SH RI SHAILENDRA KUMAR TAMOTIA WAS ALSO FILED. THE STATEMENT OF SHRI RAGHAV GARG WAS ALSO RECORDED ON OATH ON 03.11.2009. VIDE Q.NO. -8 OF THE STATEMENTS RECORDED HE WAS ASKED TO EXPLAIN THE SOU RCE OF CASH PAYMENT OF RS.85,00,000/- MODE TO SHRI SHAILENDRA K UMARTAMOTIA ON 23.06.2006. IN REPLY TO THIS QUESTION ASSESSEE ADMI TTED THAT HE MADE PAYMENT OF RS.85 LACS IN CASH ON 23.06.2006 BY COLL ECTING RS.65,00,000/- FROM SALE OF ANCESTRAL JEWELLERY BEL ONGING TO HIMSELF, HIS MOTHER SMT. TARA GARG, HIS WIFE SMT. POONAM GAR G, HIS DAUGHTER KU. ROMA GARG AND HIS SON SHRI RAJAN GARG AND A SUM OF RS.20,00,000/- IN CASH RECEIVED FROM SHRI KAUSHAL K ISHORE PAWIYAS ITA NOS.251, 275, 304 TO 306/AGRA/2012 5 ADVANCE AGAINST SALE AGREEMENT EXECUTED ON 06.06.20 06 BETWEEN THE ASSESSEE AND SHRI KAUSHAL KISHORE PAWAIYA IN RESPEC T OF SALE OF HIS IMMOVABLE PROPERTY SITUATED NEAR BASANT NAGAR, MOAR AR, GWALIOR. A COPY OF SALE AGREEMENT EXECUTED ON 06.06.2006 BETWE EN THE ASSESSEE AND SHRI KAUSHAL KISHORE PAWAIYA WAS ALSO FILED. TH US TOTAL AMOUNT OF RS.85,00,000/- WAS PAID TO SHRI SHAILENDRA KUMA R TAMOITA ON 23.06.2006 IN CASH AT THE TIME OF AGREEMENT. VIDE Q UARRY LETTER DATED 16.07.2009 ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF ACQUISITION OF JEWELLERY BY HIMSELF AND HIS FAMILY MEMBERS. IN COM PLIANCE TO HIS QUARRY ASSESSEE FILED A COPY OF WILL DATED 20.04.19 95 WRITTEN BY HIS FATHER SHRI LALTA PRASAD GARG WHO EXPIRED ON 01.09. 1995. AS PER WILL GOLD ORNAMENTS WEIGHING 1250 GMS AND SILVER ORNAMEN TS WEIGHING 1700 GRAMS TO BE PASSED ON TO THE ASSESSEE AFTER TH E DEATH OF HIS FATHER. THE ASSESSEE ALSO FURNISHED COPIES OF SALES BILLS IN RESPECT OF SALE OF GOLD AND SILVER ORNAMENTS ISSUED BY THE JEW ELER NAMELY M/S. AKALICHARAN DURGAPRASAD OF SARAFA BAZAR, GWALIOR. A S PER WILL THE DETAILS OF GOLD AND SILVER JEWELLERY PASSED ON TO T HE OTHER MEMBERS OF FAMILY OF SHRI RAGHAV GARG ARE AS UNDER: S.NO. NAME OF THE FAMILY MEMBER GOLD JEWELLERY WEIGHT SILVER JEWELLERY WEIGHT 1. SMT. TARA GARG. W/O LATE SHRI LALTA PRASAD GARG 1425 GRAMS 1500 GRAMS 2. SMT. POONAM GARG, W/O SHRI RAGHA GARG 1450 GRAMS 1500 GRAMS 3. KU. ROMA GARG. D/O SHRI RAGHAV GARG 1100 GRAMS 1800 GRAMS 4. SHRI RAJAN GARG, S/O SHRI RAGHAV GARG 1400 GRAMS 1000 GRAMS IT HAS BEEN MENTIONED IN THE WILL THAT SHRI LALTA P RASAD GARG WAS HAVING THREE SONS AND ONE DAUGHTER OUT OF WHICH TWO SONS ARE IN GOVERNMENT SERVICE AND WELL SETTLED AND ONE DAUGHTE R IS MARRIED AND SHE IS ENJOYING HAPPY MARRIED LIFE WITH HER IN-LAWS . IN THE LAST PARA OF FIRST PAGE OF THE WILL THE EXECUTOR HAS STATED THAT OUT OF LOVE & AFFECTION AND TAKING INTO CONSIDERATION THE SERVICE S RENDERED BY HIS THIRD SON NAMELY SHRI RAGHAV GARG I.E. ASSESSEE HE EXECUTED THE WILL IN RESPECT OF ABOVE MENTIONED MOVABLE PROPERTIES I. E. GOLD AND SILVER JEWELLERY IN FAVOUR OF THE ASSESSEE, HIS WIFE & HIS CHILDREN AND MOTHER ITA NOS.251, 275, 304 TO 306/AGRA/2012 6 OF THE ASSESSEE SMT. TARA GARG. THERE IS NO SUCH CL AUSE IN THE WILL WHICH INDICATES THAT AS TO WHETHER THE PROPERTIES G IVEN TO THE ASSESSEE AND HIS FAMILY MEMBERS BELONGED TO THE HUF THEN THE RE WAS NO QUESTION OF MAKING SUCH A WILL AND THE PROPERTY WAS AUTOMATICALLY TO BE DIVESTED IN THE MEMBERS OF THE HUF. THE WILL EXE CUTED ON 20.04.1995 DOES NOT CONTAIN ANY CLAUSE RELATING TO NO OBJECTION OF THE REMAINING TWO SONS IN THE EVENT OF DISTRIBUTION OF SUCH A HUGE MOVEABLE PROPERTY I.E. JWELLERY I.E. JEWEELERY IN C ASE THE JEWELLERY WAS SELF ACQUIRED BY THE FATHER OF THE ASSESSEE. THE AS SESSEE ALSO DID NOT PRODUCE ANY EVIDENCE RELATING TO FILING OF WEALTH T AX RETURN BY HIS FATHER PRIOR TO HIS DEATH EITHER IN THE STATUS OF H UF OR INDIVIDUAL WHICH HE WAS UNDER AN OBLIGATION TO DO SO. IN THE L IGHT OF ABOVE FACTS AND CIRCUMSTANCES THE SOURCES OF ACQUISITION OF GOL D AND SILVER JEWELLERY BY THE ASSESSEE AND HIS FAMILY MEMBERS IS TREATED AS NOT TO HAVE EXPLAINED SATISFACTORILY. ON PERUSAL OF IT RET URN FILED BY THE ASSESSEE AND HIS FAMILY MEMBERS FOR A.Y. 2007-08 IT IS SEEN THAT DURING THE PREVIOUS YEAR RELEVANT TO A.Y.2007-08, T HE FOLLOWING AMOUNTS ARE STATED TO HAVE BEEN RECEIVED FROM SALE OF GOLD AND SILVER JEWELLERY RECEIVED BY THEM UNDER A WILL. 1. SHRI RAGHAV GARG (ASSESSEE) RS.12,79,460/- 2. SMT. TARA GARG (MOTHER) RS.13,98,170/- 3. SMT. POONAM GARG (DAUGHTER) RS.14,05,990/- 4. KU. ROMA GARG (DAUGHTER) RS.11,60,800/- 5. SHRI RAJAN GARG (SON) RS.12,79,850/- ---------------------- RS.65,24,270/- ---------------------- SINCE THE ASSESSEE HAS FILED TO EXPLAIN THE SOURCE OF ACQUISITION OF JEWELLERY SATISFACTORILY THE PAYMENT OF RS.65 LACS MADE TO SHRI SHAILENDRA KUMAR TAMOTIYA OUT OF SALE OF GOLD & SIL VER JEWELLERY IS TREATED AS UNEXPLAINED. AS REGARDS SALE OF GOLD & SILVER JEWELLERY, THE AS SESSEE HAS FURNISHED COPY OF LEDGER ACCOUNT OF GOLD & SILVER O RNAMENTS SOLD DURING THE PERIOD FROM 01.04.2006 TO 12.06.2006 ALO NG WITH COPIES OF BILLS ISSUED BY M/S KALICHARAN DURGAPRASAD OF SARAF A BAZAR, LASHKAR. ON PERUSAL OF LEDGER ACCOUNT OF GOLD ORNAM ENTS IT IS SEEN THAT IT CONTAINS AS MANY AS 51 ENTRIES FROM 01.04.2 006 TO 12.06.2006 EACH ENTRY BELOW RS.20,000/- TOTALING TO RS.9,74,21 0/- AND CONTAINS ITA NOS.251, 275, 304 TO 306/AGRA/2012 7 ONLY WEIGHT OF THE GOLD JEWELLERY BUT IT DOES NOT C ONTAIN THE DESCRIPTION OF THE GOLD JEWELLERY. SIMILARLY THE LE DGER ACCOUNT OF SILVER ORNAMENTS CONTAINS AS MANY AS 16 ENTRIES EAC H BELOW RS.20,000/- TOTALING TO RS.3,05,250/- AND CONTAINS WEIGHT OF THE SILVER JEWELLERY ONLY BUT DOES NOT CONTAIN DESCRIPTION OF THE SILVER JEWELLERY. ALL THE PAYMENTS STATED TO HAVE BEEN RECEIVED IN CA SH ON SALE OF GOLD & SILVER JEWELLERY. IT IS NOT UNDERSTOOD THAT WHAT WERE THE CIRCUMSTANCES WHICH COMPELLED THE ASSESSEE TO SALE HIS GOLD & SILVER JEWELLERY IN PLACES AS MANY AS 51 TIMES WITHIN A SH ORT SPAN OF TWO MONTHS TWELVE DAYS. IN THIS REGARD, SUMMONS U/S 131 OF THE INCOME TAX ACT WAS ISSUED TO SHRI RAKESH MANGAL, PROPERIET OR OF M/S KALICHARAN DURGA PRASAD, SARAFA BAZAR, LASHKAR ASKI NG HIM TO PRODUCE BOOKS OF ACCOUNTS ALONG WITH PURCHASE & SAL E BILLS FOR THE PERIOD FROM 01.04.2006 TO 31.03.2007WHCH WERE PRODU CED BY HIM. INFORMATION U/S 133(6) WAS ALSO CALLED FOR FORM THE COMMERCIAL TAX OFFICER, CIRCLE-I, GWALIOR ASKING HIM TO SUPPLY THE COPIES OF QUARTERLY SALES TAX RETURNS FILED BY M/S KALICHARAN DURGA PRA SAD, SARAFA BAZAAR, LASHKAR FOR THE PERIOD FROM 01.04.2006 TO 3 1.03.2007 WHICH WERE SUPPLIED BY HIM ON 23.11.2009 ALONG WITH A COP Y OF SALES-TAX ASSESSMENT ORDER FOR THE SAID PERIOD DATED 26.06.20 09. ON VERIFICATION OF PURCHASES AND SALE BILLS WITH REFER ENCE TO THE BOOKS OF ACCOUNTS THE FOLLOWING POSITION EMERGES: (A) TOTAL PURCHASE FROM 01.04.2006 TO 31.03.2007 RS .1,69,49,690/- (B) TOTAL SALES FROM 01.04.2006 TO 31.03.2007 RS.1 ,74,66,056/- (C) TAXABLE SALES DISCLOSED TO SALES-TAX DEPARTMENT FOR THE PERIOD FROM 01.04.2006 TO 31.03.2007 AS PER SALES -TAX ASSESSMENT ORDER DTD. 26.06.2009 RS.71,14,470/- (D) TOTAL PURCHASE FROM 01.04.2006 TO 30.06.2006 RS .91,70,469/- (E) TOTAL SALES FROM 01.04.2006 TO 30.06.2006 RS .88,14,527/- FROM THE ANALYSIS OF THE ABOVE FIGURES IT IS OBSERV ED AS UNDER: (I) TOTAL PURCHASES SHOWN IN THE BOOKS OF ACCOUNTS FOR THE ENTIRE YEAR ARE RS.1,69,49,690/- WHEREAS PURCHASES FOR THE QUARTER ENDING 30.06.2006 HAVE BEEN SHOWN AT RS.91,70,469/- WHICH INCLUDES PURCHASES OF RS.65,00,000/- (APPROXIMATELY) SHOWN F ROM SHRI RAGHAV GARG, THE ASSESSEE AND HIS FAMILY MEMBERS. THUS OUT OF TOTAL PURCHASES OF RS.1,69,49,690/- 54% PURCHASES HAVE BE EN SHOWN IN THE ITA NOS.251, 275, 304 TO 306/AGRA/2012 8 FIRST QUARTER OF THE FINANCIAL YEAR 2006-07 IN ORDE R TO EXPLAIN THE PURCHASE OF RS.65/- LACS (APPROXIMATELY) SHOWN TO H AVE BEEN MADE FROM SHRI RAGHAV GARG AND HIS FAMILY MEMBERS. (II) THE TOTAL SALES SHOWN IN THE BOOKS OF ACCOUNTS FOR THE ENTIRE YEAR ARE RS.1,74,66,056/- WHEREAS SALES FOR THE FIR ST QUARTER OF THE FINANCIAL YEAR 2006-07 HAVE BEEN SHOWN AT RS.88,14, 527/- AND MOST OF THE SALES STATED TO HAVE BEEN MADE IN CASH IN OR DER TO EXPLAIN THE CASH AVAILABILITY FOR PURCHASES OF JEWELLERY OF RS. 65 LACS (APPROXIMATELY) FROM SHRI RAGHAV GARG AND HIS FAMIL Y MEMBERS. IT MAY BE MENTIONED HERE THAT THE TOTAL SALES DISCLOSE D IN THE QUARTERLY SALES-TAX RETURN FILED WITH THE SALES TAX DEPARTMEN T FOR THE QUARTER ENDING 30.06.2006 HAVE BEEN SHOWN AT RS.36,86,000/- . (III) ON GOING THROUGH THE PURCHASE BILL BOOKS PROD UCED BY SHRI RAKESH MANGAL, PROP.: OF M/S KALICHARAN DUGAPRASAD, SARAFA BAZAR, LASHKAR, GWALIOR IT IS FOUND THAT HE IS MAINTAINING THREE SETS OF PURCHASE BILL BOOKS RUNNING SIMULTANEOUSLY THROUGH WHICH PURCHASES ARE MADE. THE DETAILED ANALYSIS OF PURCHASE BILL BO OKS PRODUCED ARE AS UNDER: SET NO.1 : PURCHASE BILL BOOK NO.1 FROM S.NO.251 TO 300- BILLS ISSUED FROM S.NO.251 TO 300 FOR THE PERIOD FROM 03. 04.2006 TO 28.11.2007. SET NO.2 : PURCHASE BILL BOOK NO.2 FROM S.NO.201 TO 250- BILLS ISSUED FROM S.NO.201 TO 243 FOR THE PERIOD FROM 31. 102005 TO 12.03.2007. SET NO.3 : PURCHASE BILL BOOK NO.3 FROM S.NO.251 TO 300- BILLS ISSUED FROM S.NO.251 TO 300 FOR THE PERIOD FROM 01. 04.2006 TO 08.04.2006. ALL ISSUED IN THE NAME OF SHRI RAGHAV G ARG & HIS FAMILY MEMBERS. PURCHASE BILL BOOK NO.4 FROM S.NO.301 TO 350BILLS ISSUED FROM S.NO.301 TO 350 FOR THE PERIOD FROM 10.04.2006 TO 1 9.04.2006. ALL ISSUED IN THE NAME OF SHRI RAGHAV GARG & HIS FAMILY MEMBERS. PURCHASE BILL BOOK NO. 5 FROM S.NO.351 TO 400BILLS ISSUED FROM S.NO.351 TO 400 FOR THE PERIOD FROM 20.4.2006 TO 30 .04.2006. ALL ISSUED IN THE NAME OF SHRI RAGHAV GARG & HIS FAMILY MEMBERS. ITA NOS.251, 275, 304 TO 306/AGRA/2012 9 PURCHASE BILL BOOK NO.7 FROM S.NO.51 TO 100BILLS I SSUED FROM S.NO.51 TO 96 FOR THE PERIOD FROM 02.06.2006 TO 14. 06.2006. ALL ISSUED IN THE NAME OF SHRI RAGHAV GARG & HIS FAMILY MEMBER S. FROM THE ABOVE FACTS PRIMA FACIE IT APPEARS THAT TH ERE HAD BEEN A MANIPULATION IN THE ISSUE OF PURCHASE BILLS AND BIL LS HAVE BEEN ISSUED FROM BILL BOOKS S.NO.3 TO 7 IN THE NAME OF SHRI RAG HAV GARG & HIS FAMILY MEMBERS ONLY AFTER FINALIZATION OF ACCOUNTS. IT IS HELD THAT IN- FACT NO ACTUAL OF SALE OF GOLD & SILVER JEWELLERY H AS BEEN MADE BY THE ASSESSEE AND HIS FAMILY MEMBERS. 4. ON VERIFICATION OF THE SALE BILL BOOKS PRODUCED WITH THE BOOKS OF ACCOUNTS BY SHRI RAKESH MANGAL, PROP.: OF M/S. KALI CHARAN DUGAPRASAD, SARAFA BAZAR, LASHKAR, IT IS FOUND THAT HE IS MAINTAINING THREE SETS OF SALE BILL BOOKS RUNNING SIMULTANEOUSL Y OUT OF WHICH ONLY TWO SALE BILL BOOKS HAVE BEEN PURCHASED. ON VERIFIC ATION OF TWO SALE BILLS WITH REFERENCE TO THE BOOKS OF ACCOUNTS THE F OLLOWING POSITION EMERGES. SET NO.1: SALE BILL BOOK NO.1 FROM S.NO.301 TO 400 BILLS ISSUED FROM S.NO.301 TO 400 FOR THE PERIOD FROM 01.04.2006 TO 1 8.05.2006.THISBILL BOOK DOES NOT CONTAIN TELEPHONE/MOBILE NUMBER AND S IGNATURES OF THE CUSTOMERS. SETNO.2: SALE BILL BOOK NO.1 FROM S.NO.501 TO 600B ILLS ISSUED FROM S.NO.501 TO 600 FOR THE PERIOD FROM 03.05.2006 TO 0 2.12.2006. THIS BILL BOOK CONTAINS TELEPHONE/MOBILE NUMBER AND SIGN ATURES OF THE CUSTOMERS. SET NO.3 : NOT PRODUCED THOUGH IT CONTAINS ENTRIES I.E. BILL NUMBERS IN THE BOOKS OF ACCOUNTS. FROM THE ABOVE FACTS PRIMA-FACIE IT APPEARS THAT TH ERE HAD BEEN A MANIPULATION IN THE ISSUE OF SALES BILLS HAVE BEEN ISSUED FROM BILL BOOKS S.NO.1 ONLY AFTER FINALIZATION OF THE ACCOUNT S. ITA NOS.251, 275, 304 TO 306/AGRA/2012 10 6. THE ASSESSEE CHALLENGED THE ADDITION BEFORE THE LD. CIT(A) AND WRITTEN SUBMISSIONS OF THE ASSESSEE IS REPRODUCED IN THE AP PELLATE ORDER AS UNDER : AS REGARDS POSSESSION AND SALE PROCEEDS OF JEWELLE RY IT WAS STATED THAT ASSESSEE AND HIS FAMILY MEMBERS BY WAY OF DECEASED FATHER OF THE APPELLANT LATE SHRI LALTA PRASAD JI WHO DIED ON 01.09.1995 HAD EXECUTED HIS WILL ON 20.04.1995 ACCORDING TO WH ICH THE JEWELLERY WAS RECEIVED AS UNDER : S.NO . NAME APPEALER GOLD (GMS.) SILVER (GMS.) GOLD (GMS.) SILVER (GMS.) AMOUNT RELEASED ON SALE 1. RAGHAV GARG APPELLANT 1250 1700 1209.140 1606.42 0 RS.12,79,460/- 2. SMT. TARA GARG MOTHER 1425 1500 1412.530 1390.4 50 RS.13,98,170/- 3. SMT. POONAM GARG WIFE 1450 1500 1418.480 1402.7 46 RS.14,05,990/- 4. KU. ROMA GARG DAUGHTER 1100 1800 1067.710 1603.3 60 RS.11,60,800/- 5. SHRI RAJAN GARG SON 1400 1000 1378.970 901.000 R S.12,79,850/- TO TAL RS.6524270 THE APPELLANT DISPOSED OF THIS JEWLLERY BY CASH SAL ES MADE TO M/S KALICHARAN DURGAPRASAD, SARAFA BAZAR, GWALIOR. THE SALES CONSIDERATION RECEIVED HAS BEEN SHOWN ABOVE. OUT OF THIS SALE PROCEEDS THE ASSESSEE PAID RS.65 LACS FOR MAKING TH ESE ADVANCE. THE SALE OF JEWELLERY HAS BEEN AFFECTED FROM 01 ST APRIL, 2006 TO 12 TH JUNE 2006. THE APPELLANT FURTHER SUBMITTED THAT 20 LACS ADVAN CE FROM SHRI KAUSHAL KISHORE PAWAIYA AND RS.65 LACS BY WAY OF SA LE PROCEEDS OF JEWELLERY OF FAMILY MEMBERS IN ALL RS.85 LACS WERE PAID TOWARDS AGREEMENT NAMELY TO SHRI SHAILENDRA KUMAR TAMATIA O N 23.06.2006. THE LEARNED ITO TO REACH THE CONCLUSION OF THE ABOV E MENTIONED FACTS DID AS UNDER :- 1. EXAMINED APPELLANT AND HE STATED THAT HE HAD REC EIVED RS.20 LACS BY WAY OF ADVANCE FORM SHRI KAUSHAL KISHOR PAW AIYA AND SALE PROCEEDS OF JEWELLERY RECEIVED IN FATHERS WILL RS. 12,79,460/-. HE ITA NOS.251, 275, 304 TO 306/AGRA/2012 11 ALSO STATED THAT HE HAS PAID RS.85 LACS ADVANCE AGA INST PURCHASE OF PROPERTY TO SHRI SHAILENDRA KUMAR TAMOTIA. THIS SUM INCLUDED VALUE OF JEWELLERY SOLD BY OTHER FAMILY MEMBERS ALSO. 2. SMT. TARA GARG (MOTHER) WAS EXAMINED WHO STATED THAT SHE RECEIVED RS.13,98,170/- BY WAY OF SALE OF AFORESAID JEWELLERY RECEIVED IN WILL AND GAVE TO SHRI RAGHAV GARG FOR THE PURPOS E OF GIVING ADVANCE TO SHRI TAMOTIA. 3. SMT. POONAM GARG (WIFE) WAS EXAMINED WHO STATED THAT SHE HAS RECEIVED RS.1405990/- BY WAY OF SALE OF JEWELLE RY RECEIVED IN WILL AND GAVE TO SHRI RAGHAV GARG FOR THE PURPOSE OF GIV ING ADVANCES TO SHRI TAMOTIA. 4. KUMARI ROMA GARG GAVE AFFIDAVIT ADMITTING THAT S HE HAS SOLD AFORESAID JEWELLERY RECEIVED IN WILL FOR RS.11,60,8 00/- AND GAVE THIS AMOUNT TO SHRI S.K. TAMOTIA THROUGH FATHER. 5. RAJAN GARG WAS EXAMINED BY HIS ASSESSING OFFICER ITO RANGE- 2(1) AND STATED TO HAVE SOLD JEWELLERY WORTH RS.12, 79,850/- RECEIVED BY WAY OF WILL THE AMOUNT WAS GIVEN TO SHRI RAGHAV GARG FOR THE PURPOSE OF MAKING ADVANCES TO SHRI RAMOTIA. 6. THE LEARNED ITO ALSO EXAMINED SHRI KAUSHAL KUMAR PAWAIYA WHO ADMITTED TO HAVE GIVEN RS.20 LACS IN ADVANCE FO R PURCHASE OF PLOT OF THE APPELLANT SITUATED NEAR BASANT NAGAR, MORAR, GWALIOR. HIS OF ACCOUNTS WERE EXAMINED BY THE LEARNED ITO TO FIND OUT THE AVAILABILITY OF CASH WITH HIM WHICH WAS PAID TO THE APPELLANT. HE ALSO FILED BALANCE SHEET TO SUPPORT HIS STATEMENT. 7. AS REGARDS SALE OF JEWELLERY TO M/S KALICHARAN D URGAPRASAD, SHRI RAKESH MANGAL WAS DULY EXAMINED BY THE LEARNED ITO AND HE ACCEPTED TO HAVE MADE PURCHASERS FORM AFORESAID PER SONS OF THE VALUE OF RS.65,24,270/-. HIS BOOKS OF ACCOUNTS, BILLS OF PURCHASES, SALES ETC. WERE THOROUGHLY EXAMINED BY THE LEARNED ITO, SHRI R AKESH MANGAL IS REGULARLY ASSESSED TO TAX IN ACIT RANGE-1, GWALIOR. HIS SALES TAX RECORD WAS ALSO EXAMINED BY THE LEARNED ITO. ITA NOS.251, 275, 304 TO 306/AGRA/2012 12 THE LEARNED ITO AFTER HAVING DONE ALL THIS EXERCISE DID NOT ACCEPT ANYTHING AND ADDED ENTIRE RS.85 LACS IN THE INCOME OF THE APPELLANT. AS REGARDS JEWELLERY 2 IMPORTANT FEATURES EMERGES FROM THE DISCUSSION OF THE LEARNED AO IN HIS ORDER. FIRST TH E WILL IS NOT SUPPORTED BY ANY OTHER INCIDENTAL EVIDENCES SUCH AS WT RETURNS, STATUS, OF HUF ETC. AND SECONDLY THE SALE CONSIDERA TION RECEIVED FROM M/S KALICHARAN DURGAPRASAD ITSELF HAS NOT BEEN ACCE PTED. THE FAMILY OF THE APPELLANT AND HIS LATE FATHER WA S ONE OF THE MOST HIGHLY REPUTED FAMILIES OF MORAR. THEY WERE TH E LANDLORDS OF THE AREA IN THE PAST. THE TRADITION WAS SUCH THAT IN OL D TIME THE PERSONS USE TO KEEP JEWELLERY FOR THE PURPOSE OF FAMILY TRA DITIONS. THE JEWELLERY IN QUESTION IS NOT ONLY OF HIS BUT THE SA ME IS ALSO INHERITED BY HIM FORM HIS FAMILY. THE WILL IS DULY NOTORISED AND HAS NOT BEEN CHALLENGED BY ANY OTHER AUTHORITY OR FAMILY MEMBER THEREFORE ITS GENUINENESS CANNOT BE CHALLENGED. AS REGARDS WT ASSESSMENT AS THE PERSON WHO HAS WRI TTEN WILL PASSED AWAY ON 01.09.1995, THEREAFTER THE JEWELLERY HAS BEEN DIVIDED ON TO FAMILY MEMBERS. NONE OF THEM WOULD COME IN WT LIABILITY THEREFORE NON FILING WT RETURNS CANNOT BE AN ISSUE. AS REGARDS RETURN FILED BY LATE SHRI LALTA PRASAD JI GARG AS THE MATT ER IS SO OLD, NO SUCH EVIDENCE COULD BE FOUND. THEREFORE IN ABSENCE PRESUMING WILL TO BE NOT CORRECT CANNOT BE JUSTIFIED. AS REGARDS SALES OF THIS JEWELLERY IS TOO WELL KNO WN GEHANA SHOP WHO HAVE BEEN REGULARLY FILING RETURNS OF INCO ME AND ARE SHOWING MANY FOLDS PURCHASES AND SALES AS COMPARED TO THE CONSIDERATION OF THE SALE OF JEWELLERY UNDER CONSID ERATION OF APPEAL. THE LEARNED AO HAS EXAMINED SHRI RAKESH MANGAL HAS GONE THROUGH ELABORATELY THE BOOKS OF ACCOUNTS, VOUCHERS ETC. MAINTAINED BY HIM NO MATERIAL DEFICIENCY WAS FOUND REPORTED BY THE LEARNED AO. IN FACT THESE ACCOUNTS ARE ACCEPTED IN CASE OF SHRI RAKESH MANGAL BY THE DEPTT. THE PAYMENT OF CASH MADE BY THE FIRM TOW ARDS PURCHASES OF THIS JEWELLERY HAS NOT BEEN DISPUTED. ITA NOS.251, 275, 304 TO 306/AGRA/2012 13 THE PRESUMPTION OF THE LEARNED AO THAT TOTAL PURCHA SES, TOTAL SALES, PURCHASES FROM OTHER DOES NOT SIGNIFY ANYTHI NG EXCEPT TO FIND OUT SOME REASONS TO NOT TO ACCEPT ANY GENUINE THING ONLY ON PRESUMPTION AND CONJECTURES. THUS IS FACT THAT A SUM OF RS.85 LACS HAS BEEN ADVA NCED BY THE APPELLANT. THE APPELLANT HAS SUBMITTED THE SOURCES OF THE SAME AND IT HAS BEEN VERIFIED BY TAKING STATEMENT OF ALL THE PE RSONS INVOLVED. IN CASE THE SUM OF RS.85 LACS IS NOT AS DECLARED BY TH E APPELLANT, THE LEARNED ITO HAS TO GIVE SOME KIND OF EVIDENCE FROM WHERE SUCH HUGE AMOUNT HAS BEEN SHOWN BY THE APPELLANT. HOW THE SAM E IS RECEIVED BY HIM. IT IS FURTHER SUBMITTED SINCE THE AGREEMENT TO SALE THE HOUSE BY SHRI TAMOTIA IS NOT DISPUTED BY HIS OTHER MEMBERS A S THEY HAVE ALSO SHARE IN THIS PROPERTY THEREFORE ITS TRANSFER WAS N OT POSSIBLE THEREAFTER SHRI TAMOTIA HAS REFUNDED RS.45 LACS BY CHEQUE TO T HE APPELLANT. AS HAS BEEN HELD IN CASE OF CIT VS. NOORJEHAN 237 I TR 270 (SC) THE HONBLE SUPREME COURT HAS CASTED RESPONSIB ILITIES ON THE LEARNED AO IN CASE THE SOURCE DECLARED BY THE ASSES SEE ARE NOT RELIED UPON. IN ADDITION TO THIS, JEWELLERY DECLARED BY THE RAJA N GARG RS.12,79,850/- HAS BEEN ACCEPTED BY THE LEARNED AO IN HIS CASE IN PROCEEDINGS U/S 143(3). IN FACT THE STATEMENT IN HI S CASE HAS ALSO BEEN EXAMINED. AS REGARDS SALE OF JEWELLERY TO KALICHARA N DURGAPRASAD IS DOUBTED, WE BRING ON RECORD THAT ONCE THE TOTAL PUR CHASES OF THE FIRM IS MUCH MORE THAN PURCHASE FROM THE APPELLANT AND H IS FAMILY, THERE IS NO JURISDICTION OF NOT ACCEPTING AS NO PURCHASES HAVE BEEN MADE BY HIM. WE RELY ON DECISION OF HONBLE SUPREME COURT I N CASE OF LAL CHAND BHGAR AMBIKA RAM VS. CIT 37 ITR 288 (SC). AS REGARDS POSSESSION OF JEWELLERY BY WAY OF WILL. THIS CANNOT BE DENIED THAT SHRI LALTA PRASAD JI GARG PASSED AWA Y ON 01/09/1995 AND LOOKING TO HIS STATUS HE MUST LEFT JEWELLERY. T HE LEARNED AO HAS NOT CONSIDERED THE SAME. IN CASE OF RAJAN GARG THE JEWELLERY RECEIVED BY WAY OF WILL AND AS WELL AS SALE TO KALICHARAN DURGAPRASAD HAVE BEEN FOUND SATISFACTORILY EXPLAINED. ITA NOS.251, 275, 304 TO 306/AGRA/2012 14 THE APPELLANT ON HIS PART GAVE EVERY INFORMATION AS DESIRED BY THE LEARNED AO WITHOUT ASSIGNING ANY REASONS OF DEF AULT ON OUR PART HAS PASSED THE ORDER. THIS IS NOT AS PER LAW. 7. THE LD. CIT(A) CONSIDERING THE EXPLANATION OF TH E ASSESSEE EVIDENCES AND MATERIAL ON RECORD DELETED THE ADDITION OF RS.65,00 ,000/-. HIS FINDINGS IN PARAS 4.3 AND 4.4 OF THE APPELLATE ORDER ARE REPRODUCED AS UN DER : 4.3 APPELLANTS SUBMISSIONS HAVE BEEN CONSIDERED C AREFULLY ALONG WITH ASSESSMENT ORDER. ASSESSMENT RECORDS HAV E ALSO BEEN PERUSED. THE FACT OF PAYMENT OF RS.85,00,000/- IN C ASH FOR PURCHASE OF PROPERTY VIDE AGREEMENT DATED 23.06.2006 FOR CONSID ERATION OF RS.1,00,80,000/- HAS NOT BEEN DISPUTED. FOR THIS PA YMENT, SOURCE OF RS.65,00,000/- IS STATED TO BE SALE OF JEWELLERY OF RS.65,24,270/- ON VARIOUS DATES BETWEEN 01.04.2006 TO 12.06.2006 BY A PPELLANT AND HIS FAMILY MEMBERS. THE SOURCE OF ACQUISITION OF SAID J EWELLERY IS STATED TO BE THROUGH WILL DATED 20.04.95 OF APPELLANTS FA THER NAMELY SHRI LALTA PRASAD GARG. APPELLANTS FATHER HAS EXPIRED O N 01.09.1995 AND COPY OF HIS DEATH CERTIFICATE HAS ALSO BEEN SUBMITT ED. AO HAS NOT ACCEPTED THIS EVIDENCE MORE ON PREMISES AND ASSUMPT IONS BY STATING THAT IN ABSENCE OF ANY CLAUSE IN THE WILL TO INDICA TE AS TO WHETHER THE ASSETS BEQUEATHED TO THE APPELLANTS FATHER ALONE. SIMILARLY THERE IS NO CLAUSE REGARDING NO OBJECTION OF THE REMAINING TWO SONS OF THE APPELLANTS FATHER FOR THE DISTRIBUTION OF SUCH HUG E MOVABLE PROPERTY IN THE NAME OF THE APPELLANT AND HIS IMMEDIATE FAMI LY MEMBERS. HOWEVER, NO ADVERSE MATERIAL HAS BEEN BROUGHT ON RE CORD BY THE AO TO SHOW THAT DULY NOTARIZED WILL, AS SIGNED IN PRES ENCE OF TWO WITNESS, IS FICTITIOUS OR THAT NO ASSET HAS BEEN RECEIVED BY THE APPELLANT AND HIS FAMILY MEMBERS IN FORM OF JEWELLERY ETC. AS MENTION ED IN THE SAID WILL. AO HAS EXAMINED OTHER FAMILY MEMBERS OF THE APPELLA NT DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THEIR STATEMENTS HAVE ALSO BEEN RECORDED, WHO HAVE CATEGORICALLY CONFIRMED THE FACT OF SALE OF JEWELLERY RECEIVED IN WILL OF THE AMOUNT AS UNDER A ND AS MENTIONED BY THE AO ALSO. ITA NOS.251, 275, 304 TO 306/AGRA/2012 15 SMT.TARA GARG (MOTHER) RS.13,98,170/- SMT. POONAM GARG (WIFE) RS.14,05,990/- KUMARI ROMA GARG (DAUGHTER) RS.11,60,800/- SHRI RAJAN GARG (SON) RS.12,79,850/- ALL THESE FAMILY MEMBERS ARE FOUND TO BE REGULARLY ACCESSED TO INCOME TAX. THEIR AFFIDAVIT ADMITTING THE FACT OF S ALE OF JEWELLERY, COPY OF INCOME TAX RETURNS AS FILED IN DUE COURSE O N 31.07.2007 HAVE ALSO BEEN PRODUCED. SAME AO HAS MADE ADDITION FOR T HE SAID JEWELLERY ON PROTECTIVE BASIS IN THEHANDS OF SMT. T ARA GARG, SMT. POONAM GARG AND KUMARI ROMA GARG AS PER ORDER U/S 1 43(3) PASSED ON THE SAME DATE I.E. 22.12.2009. HOWEVER, ON SIMIL AR FACTS AND DETAILS NO ADVERSE VIEW HAS BEEN DRAWN IN CASE OF S HRI RAJANGARG VIDE ORDER DATED 30.11.2009 WHEREBY RETURN INCOME O F RS.98,950/- HAS BEEN ACCEPTED BY THE AO. 4.4 FURTHER, REGARDING SALE OF SAID JEWELLERY TO M/ S. KALICHARAN DURGAPRASAD, AO HAS ALSO EXAMINED BOOKS OF ACCOUNTS WITH REFERENCE TO BILLS ISSUED BY THEM TO THE APPELLANT. STATEMENT OF SHRI RAKESH MANGAL, PROPRIETOR OF M/S KALICHARAN DURGAPRASAD HA S ALSO BEEN RECORDED BY THE AO. HE HAS ALSO CONFIRMED THE FACT OF PURCHASE OF JEWELLERY FROM THE APPELLANT ON VARIOUS DATES IN TH E MONTHS OF APRIL TO JUNE. AO HAS NOT ACCEPTED THE SAID PURCHASE AND SAL E OF JEWELLERY ON THE GROUND THAT THERE IS A MANIPULATION IN THE ISSU E OF THE BILLS WHICH HAVE BEEN ISSUED AFTER FINALIZATION OF THE ACCOUNTS . HOWEVER, AO HAS NOT PROVED THAT THE SAID BILLS HAVE NOT BEEN RECORD ED IN THE BOOKS OF ACCOUNTS OF M/S. KALICHARAN DURGAPRASAD. IN FACT IN FORMATION OBTAINED FROM COMMERCIAL TAX OFFIER, CIRCLE-1, GWAL IOR U/S 133(6) BY THE AO SHOWS THAT TOTAL PURCHASE OF JEWELLERY FO R THE YEAR STANDS AT RS.1,69,49,690/- BY M/S. KALICHARAN DURGAPRASAD AS PER HIS QUARTERLY SALES TAX RETURN. SIMILARLY FOR THE FIRST QUARTER ENDING 30.06.2006, TOTAL PURCHASE OF JEWELLERY HAS BEEN DE CLARED AT RS.91,70,469/- WHICH IS FOUND TO BE HIGHER THAN AND INCLUSIVE OF PURCHASE OF RS.65,00,000/- FROM THE APPELLANT AND H IS FAMILY MEMBERS. THESE SALES TAX RETURNS HAVE BEEN ACCEPTED BY THE COMMERCIAL TAX AUTHORITIES BUT NOT ACCEPTED BY THE AO ON THE GROUND THAT APPROXIMATE 54% OF TOTAL SALES & PURCHA SES HAVE BEEN SHOWN BY M/S KALICHARAN DURGAPRASAD DURING THE FIRS T QUARTER ITSELF WHICH IS NOT ACCEPTABLE. HOWEVER, NO BASIS OF JUSTI FICATION OF THE SAME HAS BEEN GIVEN. FROM RECORDS IT IS SEEN THAT RETURN OF SHRI RAKESH ITA NOS.251, 275, 304 TO 306/AGRA/2012 16 MANGAL, PROPRIETOR M/S KALICHARAN DURGAPRASAD FOR THE ASSESSMENT YEAR UNDER CONSIDERATION HAS BEEN FILED ON 26.10.20 07 DECLARING INCOME OF RS.4,01,042/- IN RANGE-1(1), GWALIOR. TOT AL PURCHASES OF RS.1,69,49,690/- HAVE BEEN SHOWN ALONG WITH SALES A ND CLOSING STOCK OF RS.1,74,66,056/- AND RS.2,55,45,620/- RESPECTIVE LY. THE SAME HAS BEEN ACCEPTED BY THE AO AND NO ADVERSE INFERENCE DR AWN AGAINST TRADING RESULTS AND RETURN INCOME DECLARED ON THE B ASIS OF HIS BOOKS OF ACCOUNTS. AO HAS FAILED TO BRING ANY ADVERSE MAT ERIAL ON RECORD BEFORE REJECTING THE SUBMISSIONS, STATEMENTS, AFFID AVITS AND BOOKS OF ACCOUNTS OF PURCHASERS, SELLER PRODUCED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. ON THE BASIS OF FACTS ABOVE AND AFTER PERUSAL OF R ECORDS, AO IS NOT FOUND JUSTIFIED IN TREATING SALE OF JEWLLERY OF RS.65,00,000/- AS INCOME UNDISCLOSED SOURCES. ACCORDINGLY, ADDITION O F RS.65,00,000/- IS NOT FOUND SUSTAINABLE AND HEREBY DELETED. THE REVENUE IS IN APPEAL CHALLENGING THE DELETION O F ADDITION OF RS.65,00,000/- BY THE LD. CIT(A). 8. THE AO ALSO MADE ADDITION OF RS.20,00,000/- FOR ADVANCE OF PROPERTY AS UNEXPLAINED. THE AO IN THE ASSESSMENT ORDER MENTION ED AS UNDER : THE ASSESSEE ALSO ENTERED INTO AN AGREEMENT TO SAL E ON 06.06.2006 WITH SHRI KAUSHAL KISHORE PAWAIYA,S/O LA TE SHRI MURARI LAL PAWAYIA, R/O JAIN MANDIR SANTAR, MORAR, GWALIOR FOR SALE OF HIS PLOT SITUATED AT NEAR VASANT NAGAR, MORAR FOR SALE CONSIDERATION OF RS.40 LACS AND A SUM OF RS.20 LACS IN CASH HAS STAT ED TO HAVE BEEN RECEIVED AS ADVANCE AT THE TIME OF AGREEMENT. DURIN G THE COURSE OF ASSESSMENT PROCEEDINGS THE STATEMENT OF SHRI KAUSHA L KISHORE PAWAIYA WAS RECORDED ON OATH ON 06.11.2006. IN REPL Y TO Q.NO.2 & 3 & 4, HE HAS STATED AT PRESENT HE IS DOING SOCIAL A ND LIASONING WORK AND PRIOR TO THIS HE WAS RUNNING ICE-CREAM/FAST-FOO D PARLOUR AND VIDEO CASSETTES LIBRARY AND IS NOT FILING INCOME TA X RETURNS FROM LAST 09-10 YEARS AND NOT MAINTAINING ANY BANK ACCOUNT FO R LAST 10 YEARS. ITA NOS.251, 275, 304 TO 306/AGRA/2012 17 IN REPLY TO QUESTION NO. 8 & 10 SHRI PAWAIYA ADMITT ED THAT HE HAS GIVEN CASH OF RS.20,00,000/- TO SHRI RAGHAV GARG ON 06.06.2006 AS ADVANCE AGAINST PURCHASE OF PLOT WHICH HAS NOT BEEN RECEIVED BACK TILL DATE. AS REGARDS THE SOURCE OF CASH PAYMENT, H E STATED THAT HE HAS MADE THE PAYMENT BY SALE OF HIS MOVEABLE AND IMMOVA BLE ASSETS, HOWEVER, HE COULD NOT PRODUCE ANY EVIDENCE. IN REPL Y TO QUESTION NO.14 HE HAS ADMITTED THAT THE PROPERTY IN QUESTION WAS DISPUTED PROPERTY. FROM THE ABOVE FACTS IT IS CLEAR THT SHRI KAUSHAL KISHORE PAWAIYA WAS FINANCIALLY WEAK AT THE TIME OF AGREEME NT AND ALSO WAS NOT IN A POSITION TO MAKE A PAYMENT OF RS.20 LACS I N CASH TO SHRI RAGHAV GARG. IN THE LIGHT OF ABOVE FACTS THE SOURCE OF RECEIPT OF RS.20,00,000/- IN CASH FROM SHRI KAUSHAL KISHORE PA WAIYA IS TREATED AS NOT TO HAVE BEEN EXPLAINED SATISFACTORILY. 9. THE ASSESSEE CHALLENGED THE ADDITION OF RS.20,00 ,000/- BEFORE THE LD. CIT(A) AND HIS WRITTEN SUBMISSION IS QUOTED IN THE APPELLA TE ORDER AS UNDER : COMING TO THE SUM OF RS.20 LACS BEING ADVANCE RECE IVED FROM SHRI KAUSHAL KISHORE PAWAIYA AGAINST AGREEMENT OF S ALE OF PLOT RS.40 LACS. THE LEARNED ITO IS OF THE OPINION THAT SINCE THE STATUS OF SHRI PAWAIYA IS TOO SMALL HE DOES NOT HAVE SUM OF R S.20 LACS TO ADVANCE TO THE APPELLANT. THEREFORE HE HAS NOT GIVE N THIS SUM AS ADVANCE. ON THE CONTRARY THE LEARNED ITO WAS SHOWN REGULAR BOOKS OF ACCOUNTS MAINTAINED BY SHRI PAWAIYA FROM WHERE HE H AS PAID SUM OF RS.20 LACS IS ALSO RECORDED IN HIS CASH BOOK. UNFOR TUNATELY THIS FACT HAS NOT BEEN BROUGHT ON RECORD THAT HE HAS ALSO FIL ED HIS BALANCE SHEET ETC. ALTHOUGH AT PRESENT HE MAY NOT HAVE BIG BUSINESS BUT EARLIER HE WAS HAVING HOTEL IN HIS OWNERSHIP AND AL SO A LICENCE OF DISTILLERY ETC. SINCE COPIES OF THIS STATEMENT ARE NOT WITH THE ASSESSEE, DETAILED SUBMISSION CANNOT BE MADE. HOWEVER SUBSEQU ENTLY THIS AGREEMENT WAS CANCELLED AS THE PROPERTY WAS IN DISP UTE AND THIS DISPUTE WAS EXISTING EVEN AT THE TIME OF AGREEMENT. SHRI PAWAIYA PRESSING APPELLANT FOR REFUND OF ADVANCE WITH INTER EST. IN FACT THIS PLOT OF LAND WAS IN THE NAME OF THE A PPELLANT HOWEVER THERE WAS ILLEGAL POSSESSION OF SOME OTHER PERSON FOR THIS REASON THE REGISTRATION OF THE PILOT WAS NOT POSSIB LE. SINCE THE TITLE ITA NOS.251, 275, 304 TO 306/AGRA/2012 18 ALTHOUGH WAS CLEAR BUT ITS POSSESSION WAS DISPUTED MR. PAWAIYA HAS CANCELLED THE SAME AND THE AMOUNT HAS BEEN REFUNDED TO HIM BY THE APPELLANT. THE COST OF A PLOT IN PRESENT TIMES RS.40 LACS IS VERY REASONABLE AND THEREFORE SHRI PAWAIYA WAS PROMPTED TO BUY WITH A HOPE THAT THE DISPUTE WILL GET RESOLVED AND HE WILL OWN A VERY VA LUABLE PROPERTY. HIS STATEMENT CONFESSES AMOUNT GIVEN AS ADVANCE. HE HAS SHOWN IT IN THE BOOKS OF ACCOUNTS AND IN HIS BALANCE SHEET. IT IS ALSO TRUE THAT ALTHOUGH HE DOES NOT HAVE ANY IMPORTANT SOURCE OF E ARNING AT PRESENT BUT IN THE PAST HE WAS INVOLVED IN BIG BUSINESS. THE LEARNED ITO HAS NOT LEGALLY CONSIDER THESE EVI DENCES IN FORM OF LEGAL DOCUMENTS AND HAS DENIED AVAILABILITY OF CASH WITH THE APPELLANT OF RS.20 LACS. 10. THE LD. CIT(A), HOWEVER, CONFIRMED THE ADDITION OF RS.20,00,000/-. HIS FINDINGS IN PARAS 5.2 AND 5.3 OF THE APPELLATE ORDE R ARE REPRODUCED AS UNDER : 5.2 APPELLANTS SUBMISSION ALONG WITH ASSESSMENT O RDER AND RECORDS HAVE BEEN CONSIDERED CAREFULLY AND ARE FOUN D DEVOID OF MERITS. VIDE AGREEMENT DATED 06.06.2006 PLOT OF 370 5 SQ. FT. HAS BEEN OFFERED FOR SALE AT RS.40,00,000/- BY THE APPELLANT . AS PER THE DEED, PURCHASER NAMELYKAUSHAL KUMAR PAWAIYA S/O LATE SRI MURARI LAL PAWAIYA, R/O JAIN MANDIR, MORAR, GWALIOR HAS PAID R S.20,00,000/- AS ADVANCE. THE ONLY EVIDENCE PRODUCED BY APPELLANT IN SUPPORT OF IMPUGNED ADDITION OF RS.20,00,000/- IS CAPITAL ACCO UNT AND BALANCE SHEET OF KAUSHAL KUMAR PAWAIYA WHEREBY OPENING BALA NCE AS ON 31.03.2006 TO 15,02,751/- HAS BEEN SHOWN. INCOME FR OM LIASIONING WORK HAS BEEN SHOWN AT RS.48,000/- AND AFTER ALLOWI NG FOR DRAWING OF RS.45,000/- CLOSING CAPITAL BALANCE OF RS.15,05,751 /- HAS BEEN SHOWN. THE APPELLANT HAS ALSO SUBMITTED A COPY OF NOTICE D TD. 11.01.2011 GIVEN BY MR. PAWAIYAS COUNSEL TO RETURN ALLEGED AD VANCE OF RS.20,00,000/- FOR FAILURE TO TRANSFER THE SAID PLO T IN HIS NAME. SHRI KAUSHAL PAWAIYA HAS FAILED TO PRODUCE ANY BANK STAT EMENT, COPY OF INCOME TAX RETURN FILED IN SUPPORT OF OPENING BALAN CE OF RS.15,05,751/-. IN FACT AS PER HIS STATEMENT RECORD ED BY THE AO ON 06.09.2011 HIS SOURCE OF INCOME IS LIASIONING WORK AND BEFORE THAT HE ITA NOS.251, 275, 304 TO 306/AGRA/2012 19 WAS AN EMPLOYEE IN SCINDIA DEV STHAN TRUST. AS PER HIS OWN ADMISSION HE HAS NOT EARNED INCOME FOR LAST 9 TO 10 YEARS FOR WHICH RETURN IS REQUIRED TO BE FILED. ALLEGED ADVANCE OF RS.20,00,000/- HAS BEEN GIVEN IN CASH ON 06.06.2006 WHEN NO TAXABLE IN COME HAS BEEN EARNED DURING THAT PERIOD EITHER. SOURCE OF RS.20,0 0,000/- IS STATED TO BE SALE OF HIS MOVABLE AND IMMOVABLE ASSETS IN RESP ECT OF WHICH NOT EVEN A SINGLE PIECE OF EVIDENCE SUBMITTED BY HIM. E VEN DURING THE COURSE OF APPEAL PROCEEDINGS NO EVIDENCE WHATSOEVER IN SUPPORT OF SUBMISSIONS OF RECEIPT OF RS.20,00,000/- HAS BEEN S UBMITTED BY THE APPELLANT. FURTHER, AS PER BALANCE SHEET OF SHRI PA WAIYAS FIXED ASSETS ARE NIL AND NOMINAL BALANCES IN BANK ACCOUNT AT SYNDICATE BANK, UCO BANK AND SBI. ALLEGED PAYMENT OF RS.20,00 ,000/- HAS BEEN EXPLAINED BY WAY OF CASH IN HAND OF RS.21,39,9 77/-FOR WHICH NO CASH FLOW STATEMENT OR CASH BOOK OR ANY OTHER EVIDE NCE OF RECEIPT OR INCOME JUSTIFYING THIS AMOUNT HAS BEEN FILED. 5.3 THE APPELLANT HAS FAILED TO SATISFACTORILY EXPL AIN AMOUNT OF RS.20,00,000/- PURPORTEDLY RECEIVED AS PROPERTY ADV ANCE WITH ANY SUPPORT DOCUMENTARY EVIDENCE. AO HAS RIGHTLY CONCLU DED, AFTER ENQUIRY THAT THE SO CALLED LENDER IS A PERSON OF IN SUFFICIENT MEANS TO LEND AND HAS CONSENTED TO LEND HIS NAME ONLY FOR TH E PURPOSE; THUS THE STORY OF THE DEPOSIT OR LOAN/ADVANCE FALLS TO THE G ROUND. SECTION 68 OF THE IT ACT EMPOWERS THE AO TO MAKE ENQUIRY SPECIFIC ALLY SATISFIED REGARDING THE CASH CREDIT IN THE APPELLANTS BOOKS OF ACCOUNTS. IF AO IS SATISFIED THAT THESE ENTRIES ARE NOT GENUINE HE HAS EVERY RIGHT TO ADD THESE INCOME AS INFORM FROM OTHER SOURCES. IT IS CL EAR FROM THE LANGUAGE EMPLOYED IN SECTION 68/69 THAT IT IS THE A PPELLANT, AND THE APPELLANT ALONE, WHO IS TO OFFER THE EXPLANATION WI TH SUPPORTING DOCUMENTARY EVIDENCES, WHETHER INITIALLY OR SUBSEQU ENTLY. THE ONUS HAS BEEN LAID UPON THE APPELLANT TO FURNISH THE INF ORMATION AS REQUIRED BY THE AO. THE APPELLANT HAS FAILED MISERA BLY TO PRODUCE ANY EVIDENCE TO PROVE THE CREDITWORTHINESS OF THE C REDITOR AND THE SOURCE OF RS.20,00,000/- GIVEN TO SHRI SHAILENDRA K UMAR TAMOTIA FOR PURCHASE OF PROPERTY. THE APPELLANT HAS BEEN ABLE T O PROVE ONLY THE IDENTITY OF THE CREDITOR AND HAS FAILED TO ESTABLIS H THE CAPACITY OF THE CREDITOR TO ADVANCE A SUM OF RS.20,00,000/- ALONG W ITH THE GENUINENESS OF THE ALLEGED TRANSACTION OF SALE OF P ROPERTY BY THE APPELLANT, WHICH, IN FACT, HAS NOT BEEN CARRIED EVE N TILL DATE. THUS, THE PRIMARY ONUS REQUIRED U/S 68/69 HAS NOT BEEN DISCHA RGED BY THE APPELLANT IN RESPECT OF SUM OF RS.20,00,000/-. ACCO RDINGLY, ADDITION OF ITA NOS.251, 275, 304 TO 306/AGRA/2012 20 RS.20,00,000/- OUT OF RS.85,00,000/- MADE BY THE AO IS, HEREBY, CONFIRMED. THE ASSESSEE IN HIS APPEAL CHALLENGED THE CONFIRMAT ION OF ADDITION OF RS.20,00,000/-. 11. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND SUBMITTED THAT FATHER OF THE ASSESSEE HAS EXECUTED A WILL DURING HIS LIFE TIME THROUGH WHICH GOLD/SILVER ORNA MENTS WERE GIVEN TO THE ASSESSEE AND OTHER FAMILY MEMBERS. THE EXECUTION OF GENUINE WILL HAS NOT BEEN DISPUTED BY THE AO. THE JEWELLERY RECEIVED THROUGH THE WILL WAS SOLD TO M/S. KALICHARAN DURGA PRASAD OF SARAFA BAZAR, GWALIOR AND THE ASSESSEE FU RNISHED SALE/PURCHASE BILLS IN RESPECT OF SALE OF GOLD AND SILVER ORNAMENTS ISSUED BY THE ABOVE PARTY BEFORE THE AO. THE PURCHASER HAS CONFIRMED PURCHASE OF JEWELLE RY AND GIVING AMOUNT TO THE ASSESSEE. IN THE CASE OF ONE OF THE FAMILY MEMBERS, SHRI RAJAN GARG WHO HAS ALSO RECEIVED JEWELLERY THROUGH WILL, THE AO HAS ACCEPTE D HIS RETURN OF INCOME U/S. 143(3) OF THE IT ACT. THEREFORE, ON THE SAME MATTER IN ISSUE WHEN SIMILAR CLAIM HAS BEEN ACCEPTED IN THE CASE OF SHRI RAJAN GARG, THE A DDITION HAS BEEN RIGHTLY DELETED BY THE LD. CIT(A) IN A SUM OF RS.65,00,000/-. EVIDE NCES ARE ALSO PLACED ON RECORD BEFORE THE TRIBUNAL. WITH REGARD TO THE ADDITION OF RS.20,00,000/-, COPY OF THE AGREEMENT WITH KAUSHAL KISHORE PAWAIYA DATED 06.06. 2006 IS FILED ON RECORD (PB ITA NOS.251, 275, 304 TO 306/AGRA/2012 21 11 & 12). THE LD. COUNSEL FOR THE ASSESSEE SUBMITTE D THAT THE AGREEMENT IN QUESTION HAS NOT BEEN DISPUTED BY THE AO. THE NOTICE OF DEMA ND ISSUED FOR RETURN OF ADVANCE AMOUNT HAS ALSO NOT BEEN DISPUTED. SHRI K.K . PAWAIYA ADMITTED IN HIS STATEMENT GIVING OF ADVANCE OF RS.20,00,000/- TO TH E ASSESSEE FOR PURCHASE OF PROPERTY. THEREFORE, THE SOURCE OF THE SOURCE SHOUL D NOT HAVE BEEN ASKED BY THE AO. REGULAR BOOKS OF ACCOUNT OF KAUSHAL KISHORE PAW AIYA WERE PRODUCED TO PROVE AVAILABILITY OF CASH WITH HIM. SINCE HE HAS E XPLAINED THAT HE WAS NOT MAINTAINING BANK ACCOUNT FOR LAST TEN YEARS, THEREF ORE, NOTHING WRONG WAS THERE IN HIS STATEMENT IN GIVING CASH IN ADVANCE TO THE ASSE SSEE. HE HAS FILED COPY OF ACKNOWLEDGEMENT OF RETURN OF INCOME IN THE CASE OF ASSESSEE SUPPORTED BY COMPUTATION OF INCOME, CAPITAL ACCOUNT AND BALANCE SHEET AND SUBMITTED THAT MAIN SOURCE OF INCOME OF THE ASSESSEE IS INCOME FROM CAP ITAL AND INCOME FROM OTHER SOURCES. THEREFORE, THE ASSESSEE DID NOT MAINTAIN A NY BOOKS OF ACCOUNT AS HAVING NO BUSINESS ACTIVITIES. THE LD. CIT(A), THEREFORE, SHOULD NOT HAVE MAINTAINED THE ADDITION OF RS.20,00,000/-. ON THE OTHER HAND, THE LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 12. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND TH E MATERIAL AVAILABLE ON RECORD. THE FACTS NOTED BY THE LD. CIT(A) IN THE AP PELLATE ORDER HAVE NOT BEEN DISPUTED BEFORE US. IT IS NOT IN DISPUTE THAT FATHE R OF THE ASSESSEE SHRI LALTA PRASAD ITA NOS.251, 275, 304 TO 306/AGRA/2012 22 GARG HAS EXECUTED WILL IN FAVOUR OF THE ASSESSEE AN D OTHER FAMILY MEMBERS. THE GENUINENESS OF THE WILL HAS NOT BEEN DOUBTED BY THE AO AND NO MARGINAL WITNESSES TO THE WILL HAVE BEEN EXAMINED AT THE ASS ESSMENT STAGE. THEREFORE, THE DECEASED FATHER HAVING JEWELLERY WITH HIM AND GIVEN THE SAME TO THE ASSESSEE AND OTHER FAMILY MEMBERS THROUGH WILL HAVE NOT BEEN DIS PUTED EVEN BEFORE THE LD. CIT(A).ALL THE ASSESSEES ABOVE WERE EXAMINED BY AO AND ALL HAVE CONFIRMED THE RECEIPT OF JEWELLERY THROUGH WILL AND SELLING THE S AME JEWELLERY TO M/S. KALICHARAN DURGA PRASAD OF GWALIOR. IN THE CASE OF ONE OF THE FAMILY MEMBER SHRI RAJAN GARG, THE AO DID NOT MAKE ANY ADDITION IN THIS CASE AND ACCEPTED THE CLAIM OF RECEIPT OF JEWELLERY THROUGH THE WILL AND RECEIPT O F SALE CONSIDERATION OF THE SAID JEWELLERY. THEREFORE, BY FOLLOWING THE PRINCIPLE OF CONSISTENCY, THE DEPARTMENT SHOULD NOT HAVE DISPUTED THE SAME FACTS IN THE CASE OF PRESENT ASSESSEE AND OTHER ASSESSEES BEFORE US. THE PURCHASE OF JEWELLERY BY M /S. KALICHARAN DURGA PRASAD IS SUPPORTED BY BILLS AND BOOKS OF ACCOUNT WHO HAS ALS O MADE STATEMENT BEFORE THE AO FOR PURCHASE OF JEWELLERY FROM THE ASSESSEE AND OTHER FAMILY MEMBERS. SALE CONSIDERATION RECEIVED BY THE ASSESSEE FROM M/S. KA LICHARAN DURGA PRASAD HAS NOT BEEN DISPUTED. ALL THE ENTRIES ARE RECORDED IN THEI R BOOKS OF ACCOUNT. THE LD. CIT(A) SPECIFICALLY FOUND IN HIS FINDINGS THAT INFO RMATION WAS ALSO OBTAINED FROM COMMERCIAL TAX OFFICER, GWALIOR U/S. 133(6) BY THE AO TO SHOW THAT THE JEWELLERY WAS PURCHASED BY M/S. KALICHARAN DURGA PRASAD, WHIC H IS ALSO DISCLOSED IN THE ITA NOS.251, 275, 304 TO 306/AGRA/2012 23 SALES TAX RETURN. THEREFORE, THE PURCHASE OF JEWELL ERY FROM THE ASSESSEE AND THEIR FAMILY MEMBERS ARE NOT IN DISPUTE. THE RETURNED INC OME OF THE PURCHASER HAS BEEN ACCEPTED BY THE AO ALSO. CONSIDERING THE TOTALITY O F FACTS AND CIRCUMSTANCES AND OVERWHELMING EVIDENCES ON RECORD, WE ARE OF THE VIE W THAT THE LD. CIT(A) ON PROPER APPRECIATION OF EVIDENCES ON RECORD CORRECTL Y DELETED THE ADDITION OF RS.65,00,000/-.. THE SOURCE OF THE SAME IS, THEREFO RE, EXPLAINED. IN THE DEPARTMENTAL APPEAL, THE REVENUE HAS NOT PRODUCED A NY MATERIAL TO CONTRADICT THE FINDINGS OF FACTS RECORDED BY THE LD. CIT(A). WE, T HEREFORE, DO NOT FIND ANY MERIT IN THE DEPARTMENTAL APPEAL. THE SAME FAILS AND IS D ISMISSED. 12.1 AS REGARDS THE ADDITION OF RS.20,00,000/- CONF IRMED BY THE LD. CIT(A), IT IS NOT IN DISPUTE THAT THE ASSESSEE PRODUCED AGREEMENT TO SALE DATED 06.06.06 BEFORE THE AO THROUGH WHICH THE ASSESSEE RECEIVED ADVANCE OF RS.20,00,000/- FROM SHRI KAUSHAL KISHORE PAWAIYA. THE GENUINENESS OF THE SAL E AGREEMENT HAS NOT BEEN DOUBTED BY THE AO. COPY OF THE SALE AGREEMENT IS PR ODUCED IN THE PAPER BOOK AT PAGE 11 & 12. THE SAME AGREEMENT OF SALE IS SIGNED BY TWO MARGINAL WITNESSES. THE AO EXAMINED SHRI KAUSHAL KISHORE PAWAIYA, WHO H AS ADMITTED IN HIS STATEMENT OF GIVING OF ADVANCE OF RS.20,00,000/- IN CASH TO THE ASSESSEE. WHEN THE PURCHASER OF THE PROPERTY HAS ADMITTED GIVING OF AD VANCE TO THE ASSESSEE, IF THERE WAS ANY DOUBT IN THE MINDS OF THE AO OF EXECUTION O F AGREEMENT TO SALE, AT LEAST HE ITA NOS.251, 275, 304 TO 306/AGRA/2012 24 SHOULD HAVE EXAMINED THE MARGINAL WITNESSES WHO HAV E SIGNED THE AGREEMENT TO SALE TO FIND OUT THE TRUTH IN THE MATTER. THE AO, H OWEVER, DID NOT TAKE ANY SUCH STEP. THEREFORE, IT IS PROVED ON RECORD THAT THE AS SESSEE AND SHRI KAUSHAL KISHORE PAWAIYA HAVE GENUINELY ENTERED INTO THE AGREEMENT T O SALE DATED 06.06.06, WHEREBY THE ASSESSEE WAS GIVEN ADVANCE OF RS.20,00, 000/- BY THE PURCHASER. IT IS ALSO NOT IN DISPUTE THAT SHRI KAUSHAL KISHORE PAWAI YA HAS MAINTAINED REGULAR BOOKS OF ACCOUNT WHICH WERE PRODUCED BEFORE THE AO IN WHICH AVAILABILITY OF RS.20,00,000/- AS CASH WITH HIM HAVE BEEN SPECIFICA LLY MENTIONED. THE AO HAS NOT ADVERSELY COMMENTED UPON THE SAME. IT IS ALSO NOT I N DISPUTE THAT THE PLOT OF LAND WAS AVAILABLE TO THE ASSESSEE FOR SALE AT THE TIME OF ENTERING INTO AGREEMENT TO SALE. THEREFORE, IN SUCH FACTS AND CIRCUMSTANCES OF THE C ASE, THE AUTHORITIES BELOW SHOULD NOT HAVE ASKED THE PURCHASER TO PROVE SOURCE OF THE SOURCE. THE PURCHASER ALSO IN HIS STATEMENT EXPLAINED THE REASONS FOR GIVING THE ADVANCE IN CASH TO THE ASSESSEE BECAUSE HE WAS NOT MAINTAINING BANK ACCOUNT FOR THE LAST TEN YEARS. THE ASSESSEE HAS ONLY THE SOURCE OF INCOME FROM CAPITAL GAIN AND INCOME FROM OTHER SOURCES BEING INTEREST. THEREFORE, THE ASSESSEE WAS NOT DOI NG ANY BUSINESS ACTIVITY DURING THE YEAR UNDER CONSIDERATION. THE ASSESSEE HAS DISC LOSED TO THE REVENUE DEPARTMENT ABOUT THE ADVANCE RECEIVED AGAINST PROPE RTY TO BE SOLD AND SUCH PARTICULARS WERE DISCLOSED IN THE RETURN OF INCOME AS WELL. THEREFORE, THE FACTS OF THE CASE CLEARLY PROVE THAT THE AO SHOULD NOT HAVE INSISTED THE ASSESSEE TO PROVE ITA NOS.251, 275, 304 TO 306/AGRA/2012 25 SOURCE OF THE PURCHASER FOR PURCHASE OF THE PROPERT Y IN QUESTION. THE ASSESSEE IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES AND EVIDE NCES ON RECORD HAS BEEN ABLE TO PROVE IDENTITY OF THE PURCHASER, GENUINENESS OF THE TRANSACTION AND THE AMOUNT ACTUALLY RECEIVED FROM THE PURCHASER AS ADVANCE. TH EREFORE, AVAILABILITY OF RS.20,00,000/- WITH THE ASSESSEE ON EXECUTION OF AG REEMENT TO SALE IS PROVED BY ASSESSEE SATISFACTORILY. THE AUTHORITIES BELOW WERE , THEREFORE, NOT JUSTIFIED IN MAKING AND CONFIRMING THE ADDITION OF RS.20,00,000/ -. WE ACCORDINGLY SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND DELETE THE ADDITION OF RS.20,00,000/-. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. 12.2. IN VIEW OF THE ABOVE DISCUSSION AND FINDINGS, THE DEPARTMENTAL APPEAL IS DISMISSED AND THE APPEAL OF THE ASSESSEE IS ALLOWED . ITA NO. 304/AGRA/2012 (SMT. POONAM GARG): ITA NO. 305/AGRA/2012 (KU. ROMA GARG): ITA NO. 306/AGRA/2012 (SMT. TARA GARG): 13. ALL THE DEPARTMENTAL APPEALS ARE DIRECTED AGAIN ST DIFFERENT ORDERS OF LD. CIT(A), GWALIOR DATED 09.04.2012 FOR ASSESSMENT YEA R 2007-08, CHALLENGING THE DELETIONS OF ADDITIONS OF RS.14,05,960/-, RS.11,60, 800/- AND RS.13,98,170/- MADE ON PROTECTIVE BASIS ON ACCOUNT OF INCOME FROM UNDIS CLOSED SOURCES IN THE CASES OF ABOVE ASSESSEES RESPECTIVELY. ITA NOS.251, 275, 304 TO 306/AGRA/2012 26 14. THE SUBSTANTIVE ADDITIONS OF THE ABOVE AMOUNTS HAVE BEEN MADE IN THE CASE OF ASSESSEE SHRI RAGHAV GARG (SUPRA). SINCE THE SUB STANTIVE ADDITIONS HAVE BEEN DELETED IN THE CASE OF SHRI RAGHAV GARG OF THE AFOR ESAID AMOUNTS, THEREFORE, PROTECTIVE ADDITIONS IN THE HANDS OF ABOVE ASSESSEE S WOULD NOT STAND. THE LD. CIT(A), THEREFORE, RIGHTLY FOLLOWING THE ORDER IN T HE CASE OF RAGHAV GARG, CORRECTLY DELETED THE PROTECTIVE ADDITIONS. IN THE RESULT, AL L THE DEPARTMENTAL APPEALS FAIL AND ARE ACCORDINGLY DISMISSED. 15. IN THE RESULT, ALL THE DEPARTMENTAL APPEALS ARE DISMISSED AND THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY
