Ayushi Builders & Developers, JODHPUR V. DCIT, JODHPUR

ITA 251/JODH/2014

• Counselvise Citation: 25123314 RSA 2014
• Duration Of Justice: 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 31-07-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 21-04-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: O P MEENA
• Keywords: Unexplained investment; Income from undisclosed sources; Search and seizure; Loose papers; Document seized; Opportunity of being heard; Bonafide belief; Additional evidence; Corroborative evidences; Valuation report; Block assessment; Retraction; Documents seized
• Section: 40A(3); 143(3); 133A; 153A; 234B; 260A; 68; 69; 148; 132

Judgement Text

IN THE INCOMETAX APPELLATE TRIBUNAL , JODHPUR BENCH, J ODHPUR ( BEFORE SHRI H ARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER ) ITA NO. 251/JODH/2014 (A.Y. 2004 - 05) ITA NO. 252/JODH/2014 (A.Y. 2005 - 06) ITA NO. 253/JODH/2014 (A.Y. 2007 - 08) ITA NO. 254/JODH/2014 (A.Y. 2008 - 09) ITA NO. 255/JODH/2014 (A.Y. 2009 - 10) ITA NO. 256/JODH/2014 (A.Y. 2010 - 11) AYUSHI BUILDERS & DEVELOPERS V S . DCIT, CENTRAL CIRCLE - 2, 221 - 222, SHYAM NAGAR SCHEME, JODHPUR. DEV NAGAR, JODHPUR. PAN NO. AAJFA3646D ITA N. 347/JODH/2014 (A.Y. 2005 - 06) ITA NO. 348/JODH/2014 (A.Y. 2007 - 08) ITA NO. 349/JODH/2014 (A.Y. 2008 - 09) ITA NO. 350/JODH/2014 (A.Y. 2009 - 10) ITA NO. 351/JODH/2014 (A.Y. 2010 - 11) DCIT, CENTRAL CIRCLE - 2, V S AYUSHI BUILDERS & DEVELOPERS JODHPUR. 101, BABU RAJENDRA MARG, MASURIA, JODHPUR. PAN NO. AAJFA3646D (APPELLANT) (RESPONDENT) ASSESSEE BY : - SHRI AMIT KOTHARI. DEPARTMENT BY : - SHRI O.P. MEENA - CIT - D.R. DATE OF HEARING : 3 1 /0 7 /201 4 DATE OF PRONOUNCEMENT : 14/ 0 8 /2014 2 O R D E R P E R BENCH : THIS IS A BUNCH OF ELEVEN APPEALS - SIX BY THE ASSESSEE AND FIVE BY THE REVENUE. FOR ASSESSMENT YEARS 2005 - 06, 2007 - 08, 2008 - 09, 2009 - 10 AND 2010 - 11, BOTH ASSESSEE AS WELL AS REVENUE HAVE FILED THEIR RESPECTIVE APPEALS. FOR A.Y. 2004 - 05, THE ASSESSEE ALONE IS IN APPEAL. FOR A.Y. 2006 - 07, THERE IS NO APPEAL FROM EITHER SIDE. IN ALL THESE APPEALS ALMOST IDENTICAL ISSUES ARISING OUT OF COMMON SET OF FACTS ARE INVOLVED, THEREFORE, FOR THE SAKE OF CONGRUEN CE, BREVITY AND CONVENIENCE WE ARE PROCEEDING TO DECIDE THEM ALL BY THIS COMMON ORDER. 2. TO START WITH , WE ARE NARRATING TO FACTS OBTAINING IN A.Y. 2004 - 05 IN ITA NO. 251/JODH/2014 WHICH IS THE APPEAL OF THE ASSESSEE. THE ASSESSEE IS A FIRM, ENGAGED IN THE BUSINESS OF PURCHASE AND SALE OF PLOTS AND DEVELOPMENT OF COLONIES , SO, TO SAY IN ONE PHASE IT IS DOING THE BUSINESS IN REAL ESTATE. THE ASSESSEE - FIRM PURCHASES LARGE CHUNKS OF LAND, DEVELOPS THEM INTO PLOTS AND THEN S ELLS THEM . THE ASSESSEE HAS ALSO C LAIMED EARNING OF COMMISSION INCOME IN THIS MELEE . FOR A.Y. 2004 - 05 IT FILED ITS RETURN OF INCOME (ROI) ON 03.01.2005 DECLARING NI L INCOME WHICH WAS PROCESSED U/S 143(1) OF THE INCOME TAX ACT, 1961, 3 THE ACT FOR SHORT. SUBSEQUENTLY, ON 15.12.2009 AND 16.1 2.2009, A SEARCH AND SEIZURE ACTION U/S 132 OF THE ACT WAS CARRIED OUT AT THE BUSINESS PREMISES OF THE ASSESSEE FIRM AND AT THE RESIDENCES OF THE PARTNERS . SIMULTANEOUSLY, SURVEY U/S 133A OF THE ACT WAS ALSO CONDUCTED. DURING THIS SEARCH CERTAIN INCRIMINA TING DOCUMENTS / LOOSE PAPERS AND BOOKS OF ACCOUNTS WERE FOUND WHICH WERE SEIZED. SOME DOCUMENTS WERE SEIZED DURING SURVEY OPERATION . CONSEQUENTLY , A NOTICE U/S 153A OF THE ACT WAS ISSUED TO THIS ASSESSEE ON 14.10.2010 . T HE ASSESSEE - FI RM RESPONDED BY FILI NG RETURN OF INCOME [ROI] ON 15.03.2011 REPEATING NI L INCOME AS WAS DISCLOSED IN THE ORIGINAL RETURN. 2.1 DURING THE COURSE OF ASSESSMENT PROCEEDINGS COMPUTERIZED BOOKS OF ACCOUNTS WERE PRODUCED BY THE ASSESSEE . THE ASSESSEE - FIRM ALSO OBJECTED TO THE IN ITIAT ION OF ACTION BY ISSUANCE OF NOTICE U/S 153A OF THE ACT. HOWEVER, T HE ASSESSMENT U/S 153A/143(3) WAS COMPLETED ON 28.12.2011 AT A TOTAL INCOME OF RS. 38,55,980/ - . IN AR R I V ING AT THE ABOVE INCOME, THE A.O. HAS MADE THE FOLLOWING ADDITIONS : - (I) ADD ITION OF RS. 24,92,130 U/S 68 AS PER PARA 4 OF THE ASSTT ORDER (II) ADDITION OF RS. 13,36,500 U/S 68 ( AS PER PARA 6 OF THE ASSTT. O RDER (III) OTHER A DDITION OF RS. 27,350/ - AS PER PARA 7 OF THE ASSTT. ORDER 4 2.3 AGGRIEVED, THE ASSESSEE - FIRM FILED FIRST APPEAL AND THE LD. CIT(A), JAIPUR, VIDE IMPUGNED ORDER DATED 31.03.2014, HAS CONFIRMED ALL THE ABOVE THREE ADDITIONS. NOW, THE ASSE SSEE IS FURTHER AGGRIEVED AND HA S FILED THIS SECOND APPEAL BY RAISING THE FOLLOWING GROUNDS : - 1. A. THE ID. CIT(A) HAS ERRED I N SUSTAINING THE ADDITION OF RS. 24,92,130/ - U/S 68 IN RELATION TO CASH CREDITS. THE ADDITION SO SUSTAINED IS BAD IN LAW AND BAD ON FACTS AND IS OUTSIDE THE SCOPE OF ASSESSMENT U/S 153A. B. THE ID. CIT(A) HAS ERRED IN NOT ADMITTING THE EVIDENCES SUBMITTED BEFORE HIM, AND HAS ERRED IN REJECTING THE ADDITIONAL EVIDENCE DESPITE THE FACT THAT FULL OPPORTUNITY WAS ALSO GIVEN TO THE ID. AO TO SUBMIT HIS REMAND REPORT ON THE EVIDENCES SUBMITTED. 2. A. THE ID. CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS. 13,36 ,500/ - ON ACCOUNT OF ADVANCES RECEIVED TOWARDS SALE OF PLOT. THE ADDITION SUSTAINED IS BAD IN LAW AND BAD ON FACTS AND IS OUTSIDE THE PURVIEW OF SECTION 153A. B. THE ID. CIT(A) HAS ERRED IN NOT ADMITTING THE EVIDENCES SUBMITTED BEFORE HIM, AND HAS ERRED IN REJECTING THE ADDITIONAL EVIDENCE DESPITE THE FACT THAT FULL OPPORTUNITY WAS ALSO GIVEN TO THE ID. AO TO SUBMIT HIS REMAND REPORT ON THE EVIDENCES SUBMITTED. 5 3. THE ID. CIT(A) HAS ERRED IN SUSTAINING THE DISALLOWANCE - OUT OF INTEREST AMOUNTING TO RS. 27,3 50/ - OUT OF INTEREST PAYMENT CLAIMED BY THE APPELLANT. THE ADDITION SO SUSTAINED IS BAD IN LAW AND BAD ON FACTS AND OUTSIDE THE SCOPE OF ASSESSMENT U/S 153A. 4. THE INTEREST CHARGED U/S 234B AND 234C IS BAD IN LAW AND BAD ON FACTS. 5. THE ID. C IT(A) HAS ERRED IN NOT GRANTING TELESCOPING EFFECT OF INCOME ALREADY SURRENDERED BY THE APPELLANT IN THE VARIOUS YEARS AND HAS ALSO FURTHER ERRED IN NOT GRANTING TELESCOPING EFFECT OF THE ADDITIONS SUSTAINED. 6. THE APPELLANT PRAYS FOR SUITABLE COSTS 7. THE APPELLANT CRAVES LIBERTY TO ADDITION, AMEND, ALTER, MODIFY ANY OF THE GROUND OF APPEAL ON OR BEFORE ITS HEARING BEFORE YOUR HONOUR. 2.4 WE HAVE HEARD RIVAL SUBMISSIONS AND HAVE CAREFULLY PERUSED THE ENTIRE RECORD. 3. THE FACTS APROPOS GROUND NO. 1( A) 1(B) ARE THAT THE ASSESSEE - FIRM HAS SHOWN UNSECURED LOAN TOTALING TO RS. 24,92,130/ - FROM VARIOUS PERSONS, THE DETAILS OF WHICH ARE AS UNDER : - 6 S.NO. NAME OF PERSON AMOUNT. 1 . SUMENESH VYAS 202000 2 ASHOK SHARMA 252500 3 JABBAR SINGH KHINCHI 707000 4 HARI SINGH RATHORE 505000 5 BHIM SINGH RATHORE 5050 00 6 TARUNA SHARMA 90900 7 RAJIV VYAS 111100 8 LEELADHAR KHATRI 100000 9 MD SHARMA HUF 18630 TOTAL RS. 24,92,130 THE A.O. DEMANDED PROOF OF THE ABOVE LOAN IN TERMS OF SECTION 68 OF THE ACT, F AILING WHICH THE A.O. HAS ADDED RS. 24,92,130/ - U/S 68 OF THE ACT. 3.1 IN APPEAL THE ASSESSEE PRODUCED VARIOUS EVIDEN CE TO PROVE THIS UNSECURED LOAN. THE ADDITIONAL EVIDENCE WAS DEALT WITH IN THE LIGHT OF RULE 46A OF THE I.T. RULES, 1962 AND A REMAND REPORT WAS CALLED FROM THE A.O. HOWEVER, THE LD. CIT(A) HAS IGNORED THE REMAND REPORT OF THE A.O. 3.2 THE ASSESSEE TOOK A PLEA THAT UNSECURED LOAN HAD BEEN DISCLOSED IN THE ORIGINAL RETURN FILED U/S 139(1) OF THE ACT WHICH HAD ALREADY BEEN PROCESSED U/S 143(1) OF THE ACT . IN THE BACKDROP OF THESE FACTS IT WAS ARGUED THAT SINCE NO INCRIMINATING EVIDENCE WAS FOUND DURING SEA RCH RELAT ABLE TO THIS ITEM OF INCOME AND THE ASSESSEE HA D DISCLOSED 7 ALL UNSECURED LOANS IN ITS ORIGINAL RETURN HOW CAN THIS VERY LOAN BE CONSIDERED WHILE FRAMING ASSESSMENT ORDER U/S 153A R.W.S. 143(3) OF THE ACT. BUT T HIS ARGUMENT OF THE ASSESSEE WAS REJE CTED BY LD. CIT(A) ON THE PREMISE THAT U/S 153A, UNLIKE BLOCK ASSESSMENT ORDERS, NOT ONLY UNDISCLOSED INCOME BUT TOTAL INCOME HAS TO BE COMPUTED. 3.3 BEFORE US BOTH THE PARTIES HAVE REITERATED THEIR EARLIER ARGUMENTS. IT WAS ARGUED BY LD. A.R. SHRI KOTHA RI THAT ORIGINAL RETURN OF INCOME FILE D BEFORE THE DATE OF SEARCH HAD ALREADY ACHIEVED FINALITY AS NO ACTION U/S 143(2) OR 148 OF THE ACT WERE INITIATED AND THE DEPARTMENT IS TRYING TO ASSESS UNDER THE GUISE OF SECTION 153A OF THE A C T , SPECIFICALLY WHERE N O INCRIMINATING MATERIAL [EVIDENCE] HAS BEEN FOUND DURING THE COURSE OF SEARCH RELATABLE TO THIS ITEM OF INCOME . REGARDING NON - SUBMITTING OF REQUIRED DETAILS BEFORE THE AO IT WAS SUBMITTED THAT ON ACCOUNT OF MULTIPLE PROCEEDING S WHICH WERE GOING ON AND ASS ESSMENT PROCEEDINGS FOR VARIOUS A.YS. WERE INITIATED THAT TOO DURING THE LAST TWO MONTHS WHEN THE ASSESSMENTS WERE GETTING BARRED BY LIMITATION , THE ASSESSEE ENTERTAINED A BONAFIDE BELIEF THAT ALL THE LOAN S HAVING BEEN RECEIVED THROUGH BANKING CHANNELS AND BEING FULLY VERIFIABLE, THESE DEPOSITS ARE LIKELY TO BE ACCEPTED PARTICULARLY WHEN, IN ASSESSEES OPINION, ASSESSMENT HAD ALREADY ATTAINED FINALITY . IT WAS ARGUED THAT EVIDENCE PRODUCED BEFORE THE LD. CIT(A) ARE 8 CONFIRMATION S GIVEN BY THE PARTIES , ALONGW ITH THEIR RESPECTIVE PAN ETC. IT WAS STATED THAT MOST OF THE INFORMATION WERE AVAILABLE IN RECORD BEFORE THE AO ITSELF AND IN ANY CASE , VERY SHORT TIME WAS GIVEN TO PRODUCE SUCH EVIDENCE BY THE AO, THEREFORE, THE EVIDENCE PRODUCED BEFORE LD. CIT(A) HAS TO BE ACCEPTED UNDER RULE 46A. IT WAS ALSO STATED THAT THE ASSESSMENTS ARE NOT MADE TO TEST ASSESSEES ABILITY TO SUBMIT EVIDENCE/DOCUMENTS BUT THEY ARE FRAMED TO DETERMINE THE TOTAL INCOME EARNED BY THE ASSESSEE DURING A PARTICULAR YEAR . ACCORDING TO HIM T HE UNSECURED LOANS DONT REPRESENT INCOME OF THE ASSESSEE AND THAT IN THE CASE OF SHRI ASHOK SHARMA, THE CREDITOR, THE SALE HAS BEEN MADE TO HIM AND THE LOAN HAS BEEN ADJUSTED AGAINST THE SALE CONSIDERATION AND HAS BEEN TREATED AS INCOME. IT WAS STATED THA T THE LD. CIT(A) ACCEPTED THE ADDITIONAL EVIDENCE PRODUCED BEFORE HIM AND SENT THEM TO AO WHO AFTER EXAMINING THE M IN DETAIL HAS SUBMITTED HIS REPORT. IN THIS REPORT HE HAS OBJECTED TO THE ADMISSION OF THE ADDITIONAL EVIDENCE BUT AT THE SAME TIME HE HAS EX AMINED THEM AND HAS VERIFIED THEM. THEREFORE, ACCORDING TO LD. A.R. THE LOANS STAND CONFIRMED AND PROVED BY THE CONFIRMATION OF THE CASH CREDITORS AND SINCE THESE LOANS HAVE BEEN RECEIVED THROUGH ACCOUNT PAYEE CHEQUES AND THERE BEING NO CONTRARY EVIDENCE O N RECORD. THE LD. AR HAS PLACED RELIANCE ON MANY JUDICIAL DECISIONS IN SUPPORT OF HIS CONTENTION. 9 3.4 PER CONTRA, LD. CIT(DR) SHRI O.P. MEENA HAS CONTESTED ALL THE ABOVE POINTS RAISED BY LD. AR AND HAS RELIED HEAVILY ON THE ORDERS OF THE AUTHORITIES BELOW . HE HAS STATED THAT THE ASSESSEE FAILED TO PRODUCE ANY CONFIRMATION OR PROOF OF THE ABOVE LOANS BEFORE A.O . HE HAS STATED THAT LD. CIT(A) HAS CORRECTLY REF USED TO ACCEPT THE ADDITIONAL EVIDENC E UNDER RULE 46A. H E HAS FURTHER STATED THAT DESPITE THE FACT T HAT NO INCRIMINATING EVIDENCE WAS FOUND RELATABLE TO THESE LOANS THE A.O HAS TO COMPUTE TOTAL INCOME OF THE A SSESSEE U/S 153A AND THAT PROCESSING OF INCOME U/S 143(1) DOES NOT TANTAMOUNT TO MAKING OF AN ASSESSMENT ORDER. HE HAS FURTHER STATED THAT WHEN T HE ADDITIONAL EVIDENCE HAS NOT BEEN ACCEPTED THESE LOANS CANNOT BE TREATED AS EXPLAINED EVEN IF THE AO HAS EXAMINED AND VERIFIED THEM ON MERITS. HE HAS ALSO RELIED ON HIS WRITTEN SUBMISSIONS AND HAS ALSO PLACED RELI ANCE OF THE FOLLOWING DECISIONS : - 1. CIT VS, AJAY KUMAR SHARMA 259 I TR 240 [ R AJ] 2. CIT VS. ELEGANT HOMES PVT LTD 259 ITR 232 (RAJ.) 3. CAS C ARD FINANCE LTD. VS. ACIT 84 ITD 1 [AHD.] [TM] 3.5 AFTER CONSIDERING RIVAL SUBMISSIONS VIS - - VIS THE FACTS OF THIS ISSUE WE HAVE FOUND IT FOR A FACT THAT THE ASSESSEE - FIRM HAD ALREADY FILED I T S RETURN OF INCOME, LONG BEFORE THE DATE OF SEARCH I.E., ON 15.12.2009. IT IS AN ADMITTED FACT THAT NO INCRIMINATING MATERIAL WAS FOUND 10 DURING SEARCH WAS FOUND RELATING TO THESE LOANS. IT IS ALSO AN UNDENIABLE FACT THAT THE ASSESSEE HAD DISCLOSED THESE VERY UNSECURED LOANS IN ITS ORIGINAL ROI FILED ON 03.01.2005 AND THAT THE TIME FOR MAKING SCRUTINY ASSESSMENT U/S 143(3) BY ISSUING NOTICE U/S 143(2) HAD ALREADY EXPIRED FOR THIS YEAR AND FOR ALL OTHER ASSESSMENT YEARS UNDER CONSIDERATION EXCEPT FOR THE A.YS. 2009 - 10 AND 2010 - 11. WE HAVE FOUND THAT THE A.O. HAD DEMAND ED REQUISITE DETAILS AT THE FA G - END OF THE PERMISSIBLE PERIOD FOR COMPLETING THE ASSESSMENT. IT IS ALSO TRUE THAT ASSESSMENT PROCEEDINGS FOR MANY YEAR S WERE UNDERTAKEN SIMULTANEOUSLY BY THE AO. IT IS TRUE THAT ON THE ADDITIONAL EVIDENCE PRODUCED UNDER RULE 46A, THE LD. CIT(A) HAS CHOSEN TO CALL THE REPORT OF THE A.O AND THIS ACTION OF HIM AMOUNTS TO ACCEPTANCE OF THESE EVIDENCE . P RELIMINARILY BEFORE THE A.O T HE ASSESSEE HAS EXPLAINED THE REASONS FOR ITS FAILURE TO PRODUCE THE EVIDENCE BEFORE THE A.O DUE TO THE ABOVE STATED REASON . IN OUR OPINION THIS REASON IS SUFFICIENT REASON TO INVOKE RULE 46A, WHICH LD. CIT(A) HAS INDEED DONE. HOWEVER, WHILE PASSING THE ORDER HE HAS REJECTED THESE EVIDENCE WITHOUT GIVING OPPORTUNITY OF BEING HEARD ON THIS ASPECT OF THE MATTER. THE AO HAS NOT FOUND ANY MATERIAL THING TO REPORT THAT THE IDENTITY AND CREDITWORTHINESS OF THE CREDITORS OR THAT THE GENUIN ITY OF THESE TRANS ACTION S DO NOT STAND PROVED ON RECORD. IN OUR CONSIDERED OPINION 11 THE EVIDENCE PRODUCED HAVING BEEN EXAMINED BY THE AO DURING THE REMAND PROCEEDINGS IS SUFFICIENT ENOUGH TO JUSTIFY CONSIDERATION THEREOF AND PROVE THE THREE INGREDIENTS OF SECTION 68 OF THE A CT. THE FOLLOWING CHART DEPICTS THE ASSESSEES SUBMISSION WITH REGARD TO THESE CASH CREDITS ALONGWITH PROOF . THE EVIDENCE(S) SUBMITTED BY THE ASSESSEE - FIRM ARE LISTED AT PAGES 17 AND 18 OF THE WRITTEN SUBMISSIONS FURNISHED BY THE LD. A.R OF THE ASSESSEE WH ICH IS AS UNDER: 1 3 1 SUMESH VYAS 202000 AEJPV 2427 B * AMOUNT RE C D. AS ADVANCE AGAINST SALE. * AMOUNT ALREADY TAKEN AS INCOME BY INCLUDING IN SALE. * DETAILS OF SALE MADE SUBMITTED 2 . 2. AS HOK SHARMA 252500 N N O. PAN * AMOUNT RE C D. AS ADVANCE AGAINST SALE. * AMOUNT ALREADY TAKEN AS INCOME BY INCLUDING IN SALE. * DETAILS OF SALE MADE SUBMITTED. 3 J ABBAR SINGH KHINCHI 707000 A A BOPK9728I J AMOUNT RE C D BY CHEQUES. CONFIRMATION FILED TO AO. REGULAR INCOME TAX ASSESSEE. ACCEPTED IN REGULAR RETURNS. 4. HARI SINGH RATHORE 505000 A F AF HPR2644P AMOUNT RE C D BY CHEQUES. CONFIRMATION FILED TO AO. REGULAR INCOME TAX ASSESSEE. ACCEPTED IN REGULAR RETURNS. BH 5. BHIM S INGH RATHORE 505000 NO P AN AMOUNT RE C D BY CHEQUE S. CONFIRMATION FILED TO AO. REGULAR INCOME TAX ASSESSEE. ACCEPTED IN REGULAR RETURNS. 6. TARUNA SHARMA 90900 BQQPS5286K AMOUNT RE C D BY CHEQUES. CONFIRMATION FILED TO AO. - REGULAR INCOME TAX ASSESSEE. ACCEPTED IN REGULAR RETURNS. 7. RAJIV VYAS 1110 00 NO PAN NO CONFIRMATION. 12 8. LEELADHAR KHATRI 100000 ABNPK0194P AMOUNT RE C D BY CHEQUES. CONFIRMATION FILED TO AO. REGULAR INCOME TAX ASSESSEE. ACCEPTED IN REGULAR RETURNS. AMOUNT RE C D. IN SUBSEQUENT YEAR AND FROM OTHER FAMILY MEMBERS ALSO ACCEPTED. 9. M.D SHARMA - F HU F 18630 AAMHS7842A CONFIRMATION FILED TO AO. REGULAR INCOME TAX ASSESSEE. ACCEPTED IN REGULAR RETURNS. ASSESSED WITH THE SAME AO, WHO COMPLETED THE ASSESSMENT OF HUF TOTAL 2492 30 10 10. SMT. ANJU SHARMA 187 20 AYYPS3580M AMOUNT RE C D BY CHEQUES. CONFIRMATION FILED TO AO. REGULAR INCOME TAX ASSESSEE. ACCEPTED IN REGULAR RETURNS. ASSESSED WITH THE SAME AO 11. MANOJ VYAS 250000 / A A CCPV2038H CONSIDERED IN ADVANCE FOR PLOTS. CONFIRMATION FILED. DE TAILS OF SALE MADE SUBMITTED TO A.O 3.6 WHEN, ADMITTEDLY, NO INCRIMINATING EVIDENCE REGARDING THESE CASH CREDITORS [UNSECURED LOAN] WERE FOUND DURING SEARCH IN ADDITION TO WHAT HAD BEEN ALREADY DISCLOSED . THERE IS NO DISPUTE REGARDING THE FACT THAT NO INCRIM INATING EVIDENCE WAS FOUND REGARDING THIS ITEM OF INCOME. THIS BENCH IN THE CASE OF SUNCITY ALLOYS LIMITED REPORTED IN 124 TTJ [JD] 674 [APB, PG 10] HAS CLEARLY HELD THAT WHEN THE RETURN HAS BEEN FILED AND ATTAINED FINALITY AND NOTHING INCRIMINATIN G WAS FOUND DURING SEARCH, NO FURTHER ADDITION CAN BE MADE IN THE ASSESSMENT ORDER 13 FRAMED U/S 153A OF THE ACT. SIMILAR VIEWS HAVE BEEN TAKEN IN THE FOLLOWING DECISIONS: 1. LMJ INTERNATIONAL LTD VS. DCIT 119 TTJ 214 [CAL] 2. MEGHMANI ORGANICS LTD. VS. DY. CIT 129 TTJ 255 [AHD] 3. ANIL KUMAR BHATIA VS. ACIT [2010] 1 ITR [TRIB] 484 [DEL] 4. ANIL KHEMNANI VS. DY. CIT ITA NOS. 2855 TO 1860/MUM/2008 DATED 23.2.2010 5. CIT VS. MURLI AGRO PRODUCTS LTD. [TRIB][MUM] DATED 29.10.2010 3.7 ON THE OTHER HAND , THE DECISIONS ON WHICH THE LD. CIT - DR HAS RELIED ARE ENTIRELY ON DIFFERENT FACTS. THE JUDGMENT IN THE CASE OF CIT VS. ELEGANT HOMES PVT. LTD. 259 ITR 232 [RAJ] WAS A CASE IN WHICH THE ASSESSEE HAD NOT FILED ROI PRIOR TO SEARCH AND INCRIMINATING EVIDENCE REGARDING UNDISCLOSED INCOME WAS FOUND. IN THAT CASE, IT WAS HELD THAT THE ASSESSEE WAS REQUIRED TO PROVE THE CREDITS APPEARING IN THE PAPER/SEIZED MATERIAL. THEREFORE, THE RATIO OF THIS JUDGMENT IS NOT AT ALL RELEVANT AND THE DECISION HAS BEEN RENDERED ON ENTIRELY DIFFERENT FACTS. 14 3.8 LIKEWISE, THE JUDGMENT IN THE CASE OF CIT VS. AJAY KUMAR SHARMA REPORT E D IN 259 ITR 240 IS AGAIN OF NO HELP TO THE REVENUE BECAUSE IN THAT CASE BOOKS OF ACCOUNT WERE FOUND AND AS PER THEM, THE ASSESSEE HAD NOT OFFERED FO R TAXATION THE CREDITS SHOWN IN THE BOOKS. IN THAT EVENTUALITY, SIMILAR DECISION WAS TAKEN AS WAS TAKEN IN THE CASE OF ELEGANT HOMES PVT. LTD [SUPRA]. THUS THE FACT S OF BOTH THESE RAJAST HAN HIGH COURT JUDGMENTS ARE ENTIRELY ON DIFFERENT ISSUES AND ON DIF FERENT FOOTING AND ARE NOT APPLICABLE TO THE FACTS OF THE GIVEN CASE. THE DECISION OF CAS CARD FINANCE LTD OF AHMEDABAD BENCH [SUPRA], A THIRD MEMBER DECISION IS ALSO HAVING ENTIRELY DISTINGUISHABLE FACTS. IN THAT CASE, DURING THE COURSE OF SEARCH, CERTA IN INCRIMINATING DOCUMENTS WERE FOUND. THUS THIS DECISION IS ALSO DISTINGUISHABLE AND THE RATIO RENDERED IN THAT CASE WILL NOT APPLY TO THE FACTS OF THE PRESENT CASE. 3.9 ACCORDINGLY, IN THE LIGHT OF THE ABOVE DISCUSSION WE ARE OF THE CONSIDERED OPINION THAT THE ADDITION OF RS. 24,92,130/ - IS NOT JUSTIFIED AND DESERVES TO B E DELETED. AS A RESULT WE ORDER DELETION OF ADDITION OF RS. 24, 92,130/ - AND ALLOW GROUND NO. 1 ( A ) AND 1(B) OF ASSESSEES APPEAL . 15 4 . THE FACTS PROPOS GROUND NO. 2(A) AND 2(B) OF THIS A PPEAL A RE THAT THE ASSESSEE HAS SHOWN ADVANCES GIVEN FOR PURCHASES OF LAND TOTALING TO RS. 13,36,500/ - IN THE LIABILITY SIDE OF THE BALANCE SHEET. THE DETAILS OF THESE ADVANCES ARE AS UNDER: - S.NO. NAME OF PERSON AMOUNT. 1 BABU LAI VISHNOI 52000 2 RAJESH VYAS 120000 3 KAMAL AGARWAL 246000 4 GORDHAN DHANKANI 15000 0 5 RAMESH SONI 57000 6 M.M . SURANA 50000 7 AMRIT BORANA 100000 8 DHARMENDRA DUTT SURANA 51000 9 MOOL DAS SHARMA 150000 10 MANOJ VYAS 252500 11 SMT. SUDHA KARAL 108000 TOTAL RS. 13 , 36, 500/ - THE ASSESSEE WAS ASKED TO PROVE THESE ADVANCES. IN THE SIMILAR MANNER, AS WAS DONE IN CASE OF CASH CREDITORS THE AO MADE ADDITION OF RS. 13,36,500/ - . 4.1 IN FIRST APPEAL, THE L D. CIT(A) CALLED FOR THE REMAND REPORT OF THE AO BUT DID N OT ACCEPT THE EVIDENCES PRODUCED UNDER RULE 46A AND HAS CONFIRMED THIS ADDITION AS WELL. 16 4.2 BEFORE US S IMILAR ARGUMENTS HAVE BEEN REPEATED BY BOTH THE PARTIES. ALMOST SIMILAR CONTENTION, AS RAIS ED REGARDING CASH CREDITORS HAVE BEEN RAISED REGARDING THIS ADDITION ALSO. 4.3 AFTER HEARING BOTH THE SIDES WE HAVE FOUND THAT NO INCRIMINATING EVIDENCE WAS FOUND DURING SEARCH REGARDING THESE ADVANCES. THESE HAVE ALREADY BEEN SHOWN IN THE ORIGINAL RETUR N OF INCOME. THE ASSESSEE PRODUCED PROOF TO PROVE THESE ADVANCES. THE AO HAS SENT HIS REMAND REPORT AFTER VERIFYING THEM. IT IS NOTICED THAT THE ASSESSEE HAD RECEIVED ADVANCES AGAINST SALE OF PROPERTY WHICH WERE ADJUSTED AGAINST SALE MADE SUBSEQUENTLY. IN ANY CASE THIS RECEIPT CANNOT PARTA K E THE CHARACTER OF INCOME. THE POSITION OF ADVANCES AND SUBSEQUENT SALE MADE AGAINST THESE ADVANCES IS REVEAL ED AT PAGES 19 AND 20 OF THE WRITTEN SUBMISSIONS FILED BY THE LD. A.R OF THE ASSESSEE. 4.4 IN THE ABOVE SCENARI O, WE HAVE FOUND THAT THIS CLAIM OF THE ASSESSEE IS QUITE JUSTIFIED. THE IMPUGNED ADDITION DESERVES TO BE DELETED. THE DECISION REFERRED TO ABOVE IN RELATION TO ADDITION MADE U/S 68 OF THE ACT ALSO APPLIES TO GREATER EXTENT FOR THIS ISSUE AS WELL. ACCORDIN GLY, WITH SIMILAR REASONING WE ORDER DELETION OF THIS AMOUNT AS WELL AND ALLOW GROUND NO. 2(A) AND 2(B) OF ASSE S SEES APPEAL. 17 5. THE GROUND NO. (3) IS RELATING TO DISALLOWANCE OF INTEREST OF RS. 27,350/ - OUT OF INTEREST PAID TO LENDERS. SINCE WE HAVE AL READY ACCEPTED THE LOANS AS G ENUINE AND THIS INTEREST AMOUNT OF RS. 27,350/ - WAS MAINLY DISALLOWED BECAUSE THE LOAN WAS HELD INGENUINE, HAS TO BE ALLOWED. ACCORDINGLY, WE DELE TE THIS ADDITION OF RS. 27,350/ - AND ALLOW GROUND NO. 3 OF ASSESSEES APPEAL . 6. GROUND NO. (4) IS REGARDING CHARGING OF INTEREST U/SS 234B AND 234B. SINCE THE CHARGING OF INTEREST IS MANDATORY, ONLY CONSEQUENTIAL RELIEF IS ADMISSIBLE. ACCORDINGLY, WE DONT ALLOW THIS GROUND AND DISMISS THE SAME. 7. GROUND NO. (5) HAS BECOME OF ACAD EMIC INTEREST ONLY, AS WE HAVE NOT SUSTAINED ANY ADDITION WHICH CAN BE SET OFF AGAINST THE SURRENDER ED INCOME. HENCE, THIS GROUND IS DISMISSED ON THAT SCORE. 8. GROUND NO. 6 WAS NOT PRESSED AT THE TIME OF HEARING. THEREFORE, THIS GROUND IS ALSO DISMISSED AS NOT ARGUED. GROUND NO. (7) IS GENERAL IN NATURE AND DOES NOT REQUIRE ANY ADJUDICATION. 9. IN THE RESULT THE APPEAL IN ITA NO. 251/JODH/2014 FOR A.Y. 200 4 - 05 IS PARTLY ALLOWED. 18 ITA NO. 347 AND 252/JODH/2014 (A.Y. 2005 - 06) 10. THE S E ARE CROSS APPEAL S FILED AGAINST THE ORDER OF LD. CIT(A), JAIPUR DATED 31.03.2014. 11. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS IN ITS APPEAL : - 1. THE ID. CIT(A) HAS ERRED IN SUSTAINING THE DISALLOWANCE OUT OF INTEREST AMOUNTING TO RS. 2,94,390/ - OUT OF INTEREST P AYMENT CLAIMED BY THE APPELLANT. THE ADDITION SO SUSTAINED IS BAD IN LAW AND BAD ON FACTS AND OUTSIDE THE SCOPE OF ASSESSMENT U/S 153A. 2. THE ID. CIT(A) HAS ERRED IN SUSTAINING THE DISALLOWANCE OF RS. 8,86,880/ - MADE U/S 40(A)(IA) AND RS. 38,050/ - OU T OF EXPENSES ON THE BASIS OF ORIGINAL ASSESSMENT. THE ADDITION SO SUSTAINED IS BAD IN LAW AND BAD ON FACTS. 3. THE INTEREST CHARGED U/S 234B AND 234C IS BAD IN LAW AND BAD ON FACTS. 4. THE ID. CIT(A) HAS ERRED IN NOT GRANTING TELESCOPING EFFECT OF INCO ME ALREADY SURRENDERED BY THE APPELLANT IN THE VARIOUS YEARS AND HAS ALSO FURTHER ERRED IN NOT GRANTING TELESCOPING EFFECT OF THE ADDITIONS SUSTAINED. 5. THE APPELLANT PRAYS FOR SUITABLE COSTS 19 6. THE APPELLANT CRAVES LIBERTY TO ADDITION, AMEND, ALTER, MOD IFY ANY OF THE GROUND OF APPEAL ON OR BEFORE ITS HEARING BEFORE YOUR HONOUR. 12. THE REVENUE HAS RAISED THE FOLLOWING GROUND S IN ITS APPEAL : - WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) - I, JAIPUR HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO DELETE THE ADDITION OF RS. 10,80,000/ - MADE BY THE AO ON ACCOUNT OF DISALLOWANCE U/S 40A(3) OF THE I.T. ACT, 1961 IN RESPECT OF PURCHASE OF AGRICULTURAL LAND IGNORING THAT THE LAND WERE STOCK - IN - TRADE OF THE ASSESSEE AND ALSO IGNORING THE FAC T THAT THE APPELLANT HAD FAILED TO SUBSTANTIATE THE EXCEPTIONAL CONDITIONS UNDER WHICH THE CASH PAYMENTS WERE MADE . 13. WE HAVE HEARD RIVAL SUBMISSIONS. IN ASSESSEES APPEAL GROUND NO. 1, 3, 4 AND 5 ARE SAME AND SIMILAR TO THE GROUNDS RAISED IN A.Y. 2004 - 05. THE ARGUMENTS OF BOTH THE PARTIES REGARDING THEN ARE ALSO IDENTICAL. THEREFORE, WITH SIMILAR REASONING, AS GIVEN IN A.Y. 20 04 - 05, AS ABOVE, WE DISPOSE OF THEM AND ALLOW GROUND NO. (1) BUT DISMISS GROUND NOS. 3, 4 AND 5 OF ASSESSEES APPEAL. 20 14. THE GROUND NO. 2 OF ASSESSEES APPEAL IS REGARDING SUSTAINED ADDITION OF RS. 8,86,880/ - MADE U/S 40(A)(IA) OF THE ACT AND RS. 38,050/ - OUT OF EXPENSES ON THE BASIS OF ORIGINAL ASSESSMENT. IN FACT, TOTAL ADDITION OF RS. 10,86,632/ - WAS MADE IN THE ASSESSMENT O RDER PASSED U/S 143(3) OF THE ACT. THIS ADDITION INCLUDED A SUM OF RS. 8,86 ,880/ - MADE U/S 40(I)(A) AND OF RS. 38,050/ - MADE ON ACCOUNT OF VARIOUS EXPENSES. THIS ADDITION HAS BEEN CONFIRMED BY THE LD. CIT(A) AS WELL AS APPELLATE TRIBUNAL AND THE APPEAL O F THE ASSESSEE IS STATED TO BE PENDING BEFORE THE HON'BLE JURISDICTIONAL HIGH COURT. THEREFORE, WE DO NOT INTERFERE IN THIS ISSUE AND THE A.O HAS TO FOLLOW AND APPLY THE VERDICT FINALLY GIVEN BY THE HIGH COURT. TILL THEN, WE CANNOT ALLOW THE GROUND NO. 2 OF ASSESSEES APPEAL AND DISMISS THE SAME. 15. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 1 6 . IN REVENUES APPEAL THE ONLY EFFECTIVE GROUND IS GROUND NO. 1(I) WHICH RELATES TO DELETION OF ADDITION OF RS. 10,80,000/ - ADDED BY THE AO U /S 40A(3) OF THE ACT. THE FACTS APROPOS, THIS GROUND ARE THAT THE ASSESSEE MADE PAYMENT OF RS. 54 LA KHS TO VARIOUS PARTIES TOWARDS THE PURCHASE OF AGRICULTURAL LAND (PAGE 2 PARA 5 OF AOS ORDER). HOWEVER, EVEN AFTER MENTIONING, AS ABOVE, HE H AS INVOKED THE PROVISIONS OF 21 SECTION 40A(3) AND AFTER DISALLOWING 20% OF THIS PAYMENT OF RS. 54 LAKHS HAS ADDED A SUM OF RS. 10,80,000/ - . 1 7 . BEFORE LD. CIT(A) THE ASSESSEE WAS SUCCESSFUL. THE LD. CIT(A) HAS FOLLOWED THE TRIBUNAL ORDER IN THE CASE OF SMT. JIYA DEVI, AN OTHER ASSESSEE OF THIS GROUP IN WHICH ON IDENTICAL FAC TS THE JURISDICTIONAL TRIBUNAL H A S DELETED ADDITION SO MADE IN HER HANDS. BUT, THE REVENUE IS NOW AGGRIEVED. THE CONTENTION OF LD. CIT(DR) THAT THE PAYMENT WAS NOT MADE AGAINST A AGRICULTURAL LAND BUT I T WAS PAID FOR PURCHASING STOCK - IN - TRADE. WE HAVE CONSIDERED THIS SUBMISSION OF LD. CIT(A) AND HAVE FOUND THAT SMT. JIYAS CASE, THE FACTS A RE EXACTLY IDENTICAL. THE REASON FOR ADDITION ARE ALSO EXACTLY THE SAME. HOWEVER, ON SIMILAR FACTS AND IDENTICAL CON TENTION OF THE PARTIES, THE JODHPUR BENCH OF ITAT IN ITA NOS. 211 AND 212/JODH/203 IN THE CASE OF SMT. JIYA DEVI SHARMA (A.Y. 2008 - 09 AND 2009 - 10) ORDER DATED 20.09.2013, HAS DELETED SIMILAR ADDITION. THE LD. CIT(A) HAS FOLLOWED THIS DECISION FOR DELETING IMPUGNED ADDITION. BEFORE US BOTH THE PARTIES HAVE REITERATED THEIR EARLIER ARGUMENTS. WE HAVE GONE THROUGH PARA 5.3 OF THE ORDER OF THE TRIBUNAL DATED 20.9.2013 [SUPRA]. THIS PARA 5.3 OF THE TRIBUNAL ORDER READS AS UNDER: 22 5.3 WE HAVE HEARD RIVAL SUBMIS SIONS. BOTH PARTIES HAVE REITERATED THEIR OLD STAND. WE HAVE FOUND THAT THE PAYMENT TO AGRICULTURISTS WERE MADE UNDER CIRCUMSTANCES WHICH ARE EXCLUDED UNDER THE PROVISIONS OF RULES. THE AGRICULTURAL LAND CANNOT BE CONVERTED TO STOCK IN TRADE UNTIL PERMISS ION IS OBTAINED AND THE PROVISIONS OF SECTION 40A(3) OF THE ACT CANNOT BE INVOKED IN THIS CASE ACCORDING TO THE PREVAILING LAW. PRINCIPLES OF SECTION 40A(3) OF THE ACT CANNOT BE INVOKED IN RESPECT OF AGRICULTURAL LAND. IN THIS REGARD THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF GOPAL SUGAR MILLS REPORTED AT 40 ITR 618, IS RELEVANT. ACCORDINGLY, WE ORDER TO DELETE THE IMPUGNED DELETION OF RS. 4,80,000/ - MADE IN THIS REGARD AND ALLOW GROUND NO. 4 OF THIS APPEAL. THUS, WE ARE CONVINCED THAT T HE FACTS OF THIS ISSUE ARE IDENTICAL IN JIYA DEVI SHARMAS [GROUP CASE]. BY RESPECTFULLY FOLLOWING THIS ORDER THE LD. CIT(A) HAS TAKEN HIS DECISION . HOW CAN WE DEVIATE FROM THIS FINDING OF OUR OWN BENCH. ACCORDINGLY , WE DO NOT FIND ANY MERIT IN THIS GRO UND OF REVENUES APPEAL AND DISMISS IT . 1 8 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED AND THAT OF THE REVENUE IS DISMISSED. 23 ITA NO. 253 AND 348 /JODH/2014 (A.Y. 2007 - 08) 19. THESE ARE CROSS APPEALS, FILED AGAINST THE ORDER OF LD. CI T(A), JAIPUR, DATED 31.03.2014. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN ITS APPEAL: - 1. THE ID. CIT(A) HAS ERRED IN SUSTAINING THE DISALLOWANCE OUT OF INTEREST AMOUNTING TO RS. 1 , 83 , 869 / - OUT OF INTEREST PAYMENT CLAIMED BY THE APPELLANT. THE ADDITION SO SUSTAINED IS BAD IN LAW AND BAD ON FACTS AND OUTSIDE THE SCOPE OF ASSESSMENT U/S 153A. 2. THE ID. CIT(A) HAS ERRED IN NOT GRANTING TELESCOPING E FFECT OF INCOME ALREADY SURREND ERED BY THE APPELLANT IN VARIOUS YEARS AND HAS ALSO FURTHER E R RE D IN NOT GRANTING TELESCOPING EFFECT OF ADDITIONS SUSTAINED. 3. THE INTEREST CHARGED U/S 234B AND 234C IS BAD IN LAW AND BAD ON FACTS. 20. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS IN ITS APPEAL : - I). WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) - I, JAIPUR HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO DELETE THE ADDITION OF RS. 35,20,000 MADE BY THE AO ON ACCOUNT OF DISALLOWANCE U/S 40A(3) OF THE I.T. ACT, 1961 IN RESPECT OF PURCHASE OF AGRICULTURAL LAND IGNORING THAT THE L AND 24 WERE STOCK - IN - TRADE OF THE ASSESSEE AND ALSO IGNORING THE FACT THAT THE APPELLANT HAD FAILED TO SUBSTANTIATE THE EXCEPTIONAL CONDITIONS UNDER WHICH THE CASH PAYMENTS WERE MADE. (II) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A ) 1, JAIPUR HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO DELETE THE ADDITION OF RS. 13,05,700/ - MADE BY THE AO ON ACCOUNT OF 50% DISALLOWANCE OUT OF THE LAND DEVELOPMENT EXPENSES, IGNORING THE FACT THAT THE ASSESSEE CONSISTENTLY FAILED TO FURNISH ANY EVID ENCE DESPITE OPPORTUNITIES GIVEN DURING ASSESSMENT AS WELL AS DURING APPELLATE PROCEEDING. 2 1. WE HAVE HEARD THE RIVAL SUBMISSIONS. ALL THE GROUNDS IN BOTH THE ABOVE APPEALS , EXCEPT FOR THE GROUND NO. (II) IN REVENUES APPEAL , ARE IDENTICAL . THEREFORE, W ITH SIMILAR REASONING AS WE HAVE GIVEN IN EARLIER YEAR WE PARTLY ALLOW ASSESSEES APPEAL AND DISMISS GROUND NO. (I) OF REVENUES APPEAL. 22 . THE FACTS APROPOS GROUND NO. (II) OF DEPARTMENTAL APPEAL ARE THAT THE ASSESSEE HAS CLAIMED LAND DEVELOPMENT EXPE NSES AT KHASRA NO. 374 OF RS. 12,99,400/ - AND SHOP CONSTRUCTION EXPENSES OF RS. 13,12,000/ - . THE AO HAS DISALLOWED 50% OF THESE EXPENSES ON AD - HOC , BECAUSE ACCORDING TO HIM THESE EXPENSES ARE NOT FULLY VERIFIABLE. IN APPEAL, THE LD. CIT(A) HAS DELETED THE ENTIRE DISALLOWANCE ON THE BASIS OF THE REASONING GIVEN BY THE TRIBUNAL IN THE GROUP CASE OF SMT. JIYA 25 DEVI SHARMA (SUPRA) JUDGMENT IN WHICH SIMILAR ADDITIONS HAVE BEEN DELETED. BEFORE US ARGUMENTS OF THE PARTIES REMAINED THE SAME. WE HAVE ALSO FOUND THA T THE REASON FOR ADDITION IN THIS GROUP CASE ARE IDENTICAL. THE TRIBUNAL HAS DELETED THIS ADDITION. THEREFORE, BY RESPECTFULLY FOLLOWING OUR ORDER IN SMT. JIYA DEVIS ORDER WE CONFIRM THE IMPUGNED DELETION AND DISMISS GROUND NO. (II) OF REVENUES APPEAL. IN ALL OTHER APPEALS FOR A.YS. 2008 - 09, 2009 - 10 AND 2010 - 11 THIS GROUND [GROUND NO. II] ARE EXACTLY IDENTICAL EXCEPT FOR THE AMOUNTS OF DISALLOWANCE. 23 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED AND THAT OF THE REVENUE IS DISMISSED. ITA NO. 254 AND 349/JODH/2014 (A.Y. 2008 - 09) 24 . THESE ARE CROSS APPEAL, FILED AGAINST THE ORDER OF LD. CIT(A), JAIPUR, DATED 31.03.2014. THE ASSESS EE HAS RAISED FOLLOWING GROUNDS : - 1. THE ID. CIT(A) HAS ERRED IN SUSTAINING THE DISALLOWANCE OUT OF IN TEREST AMOUNTING TO RS. 1 , 99 , 707 / - OUT OF INTEREST PAYMENT CLAIMED BY THE APPELLANT. THE ADDITION SO SUSTAINED IS BAD IN LAW AND BAD ON FACTS AND OUTSIDE THE SCOPE OF ASSESSMENT U/S 153A. 26 2. THE ID. CIT(A) HAS ERRED IN NOT GRANTING TELESCOPING EFFECT OF INCOME ALREADY SURRENDERED BY THE APPELLANT IN VARIOUS YEARS AND HAS ALSO FURTHER ERRED IN NOT GRANTING TELESCOPING EFFECT OF ADDITIONS SUSTAINED. 3. THE INTEREST CHARGED U/S 234B AND 234C IS BAD IN LAW AND BAD ON FACTS. 2 5 . THE REVENUE HAS RAISED FO LLOWING GROUNDS : - I). WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) - I, JAIPUR HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO DELETE THE ADDITION OF RS. 2,10,0 0,000 MADE BY THE AO ON ACCOUNT OF DISALLOWANCE U/S 40A(3) OF THE I.T. A CT, 1961 IN RESPECT OF PURCHASE OF AGRICULTURAL LAND IGNORING THAT THE LAND WERE STOCK - IN - TRADE OF THE ASSESSEE AND ALSO IGNORING THE FACT THAT THE APPELLANT HAD FAILED TO SUBSTANTIATE THE EXCEPTIONAL CONDITIONS UNDER WHICH THE CASH PAYMENTS WERE MADE. (II) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) 1, JAIPUR HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO DELETE THE ADDITION OF RS. 9,37,675 / - MADE BY THE AO ON ACCOUNT OF 50% DISALLOWANCE OUT OF THE LAND DEVELOPMENT EXPENSES, IGNO RING THE FACT THAT THE ASSESSEE CONSISTENTLY FAILED TO FURNISH ANY EVIDENCE DESPITE OPPORTUNITIES GIVEN DURING ASSESSMENT AS WELL AS DURING APPELLATE PROCEEDING. III) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE CIT(A) - I, JAIPUR HAS ERRED ON FACTS IN DELETING THE ADDITION OF RS.32,00,200/ - MADE BY THE AO ON ACCOUNT OF INVESTMENT 27 TREATED AS UNEXPLAINED U/S 69 OF THE I.T. ACT, 1961, IGNORING THE FACT THAT THE APPELLANT HAS CONSISTENTLY FAILED TO FURNISH ANY DETAILS OR ANY SUBSTANTIATING EVIDENCE S, IN SPITE OF GRANTING OF REASONABLE AND SUFFICIENT OPPORTUNITIES DURING THE ASSESSMENT PROCEEDING OR EVEN DURING THE APPELLATE PROCEEDINGS TO EXPLAIN THE SOURCES OF INVESTMENT MADE IN THE SAID PROPERTY 2 6 . WE HAVE HEARD RIVAL SUBMISSIONS. AS IS EVIDENT FROM THE GROUNDS AND ALSO CONCURRED BY THE PARTIES THAT EXCEPT FOR THE G ROUND NO. (III) IN REVENUES APPEAL ALL OTHER GROUNDS IN BOTH THE APPEALS ARE EXACTLY IDENTICAL TO THE GROUNDS RAISED I N EARLIER APPEALS. ACCORDINGLY, WE TAKE THE SAME VIEW FOR THESE ISSUES AS WE HAVE TAKEN IN EARLIER YEARS RESULTING IN PARTLY ALLOWANCE OF ASSESSEES APPEAL AND DISMISSAL OF GROUND NO. (I) AND (II) OF REVENUES . THE GROUND NO (III) IN REVENUES APPEAL FOR A.Y. 2008 - 09 IS REGARDING DELETION OF AN ADDITION OF RS. 32,00,20 0/ - 27. THE FACTS OF THIS GROUND OF REVENUES APPEAL ARE THAT THE ASSESSEE HAS INVESTED A SUM OF RS. 32,00, 2 00/ - TOWARDS THE PURCHASE OF A PLOT OF LAND DESCRIBED AS PLOT NO. 44 IN THE ARTISAN COLONY FOR THE CONSTRUCTION OF A OFFICE COMPLEX. DURING THE AS SESSMENT PROCEEDINGS THE ASSESSEE WAS REQUESTED TO EXPLAIN THE SOURCE(S) OF THIS INVESTMENT. 28 VIDE QUESTIONNAIRE DATED 7.10.2011 WHEN NO SATISFACTORY REPLY WAS FILED BY THE ASSESSEE, THE A.O ADDED THIS AMOUNT OF RS. 32,00, 2 00/ - IN ITS HAND. 28. THE LD. CIT(A) HAS DELETED THIS ADDITION AFTER DISCUSSING THIS ISSUE IN PARAS 8 TO 9.1 AT PAGES 8 TO 10 OF HIS ORDER. HE HAS OBSERVED THAT THE SOURCE OF THIS INVESTMENT STANDS EXPLAINED. HE HAS FOLLOWED THE DECISION OF THE APPELLATE TRIBUNAL, JODHPUR BENCH, REND ERED IN THE GROUP CASE OF SHRI M.D. SHARMA IN ITA NO. 213 TO 215/JU/2013 DATED 24.9.2013. BEFORE US BOTH THE PARTIES HAVE REITERATED THEIR EARLIER ARGUMENTS, BOTH THE PARTIES HAVE MADE THEIR SIMILAR ARGUMENTS AS WERE MADE BEFORE THE LD. CIT(A). THE LD. C IT[DR] HAS FILED A WRITTEN SUBMISSION, WHICH IS AS PER THE SUBMISSION OF THE A.O. WE HAVE GONE THROUGH THESE WRITTEN SUBMISSIONS AS WELL. WE HAVE PERUSED THE TRIBUNAL ORDER DATED 24.9.2013 [SUPRA]. 29. AFTER CONSIDERING THE RIVAL SUBMISSIONS THE ENTIRE GAMUT OF FACTS IN THEIR PROPER PERSPECTIVE, WE HAVE FOUND THAT THE FACTS IN M.D. SHARMAS CASE, SUPRA ARE MUTATIS MUTANDIS SAME TO SIMILAR. THE ARGUMENTS OF BOTH THE SIDES, ON MERITS OF THIS ISSUE ARE ALSO IDENTICAL. THE LD. CIT(A) HAS DELETED THIS ADDIT ION BY FOLLOWING PARA 5.2 OF THE 29 ABOVE SAID ORDER DATED 24.9.2013. THE LD. CIT(DR) HAS ALSO ADMITTED THIS FACT IN HIS WRITTEN SUBMISSIONS. BECAUSE THE DEPARTMENT HAS FILED APPEAL AGAINST THIS ORDER, THE TRIBUNAL ORDER DOES NOT GET EFFACED UNTIL IT IS REV ERSED OR ITS OPERATION IS STAYED. ACCORDINGLY, THERE IS NO MERIT IN THIS GROUND OF REVENUES APPEAL AND WE DISMISS THE SAME. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED AND THAT OF THE REVENUE IS DISMISSED. ITA NO. 350 AND 255/JODH/201 4 (A.Y. 2009 - 10) 30. THESE ARE CROSS APPEALS FILED AGAINST THE ORDER OF THE LD. CIT(A) DATED 31.3.2014. 31. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS : 1. THE ID. CIT(A) HAS ERRED IN SUSTAINING THE DISALLOWANCE OUT OF INTEREST AMOUNTING TO RS. 2 , 21 , 203 / - OUT OF INTEREST PAYMENT CLAIMED BY THE APPELLANT. THE ADDITION SO SUSTAINED IS BAD IN LAW AND BAD ON FACTS AND OUTSIDE THE SCOPE OF ASSESSMENT U/S 153A. 2. THE ID. CIT(A) HAS ERRED IN NOT GRANTING TELESCOPING EFFECT OF INCOME ALREADY SURRENDE RED BY THE APPELLANT IN VARIOUS YEARS AND HAS ALSO FURTHER ERRED IN NOT GRANTING 30 TELESCOPING EFFECT OF ADDITIONS SUSTAINED. 3. THE INTEREST CHARGED U/S 234B AND 234C IS BAD IN LAW AND BAD ON FACTS. 32. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS : I). WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) - I, JAIPUR HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO DELETE THE ADDITION OF RS. 2,10,0 0,000 MADE BY THE AO ON ACCOUNT OF DISALLOWANCE U/S 40A(3) OF THE I.T. ACT, 1961 IN RESPECT OF PURCHASE OF AGRICULTURAL LAND IGNORING THAT THE LAND WERE STOCK - IN - TRADE OF THE ASSESSEE AND ALSO IGNORING THE FACT THAT THE APPELLANT HAD FAILED TO SUBSTANTIATE THE EXCEPTIONAL CONDITIONS UNDER WHICH THE CASH PAYMENTS WERE MADE. (II) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) 1, JAIPUR HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO DELETE THE ADDITION OF RS. 9,37,675 / - MADE BY THE AO ON ACCOUNT OF 50% DISALLOWANCE OUT OF THE LAND DEVELOPMENT EXPENSES, IGNORING THE FACT THAT THE ASSES SEE CONSISTENTLY FAILED TO FURNISH ANY EVIDENCE DESPITE OPPORTUNITIES GIVEN DURING ASSESSMENT AS WELL AS DURING APPELLATE PROCEEDING . ITA N O . 256 AND 351/JODH/2014 (A.Y. 2010 - 11) 33. THESE ARE CROSS APPEALS FILED AGAINST THE ORDER OF THE LD. CIT(A) DATED 31.03.2014. 31 34. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS : 1. THE ID. CIT(A) HAS ERRED IN SUSTAINING THE DISALLOWANCE OUT OF INTEREST AMOUNTING TO RS. 3 , 65 , 039 / - OUT OF INTEREST PAYMENT CLAIMED BY THE APPELLANT. THE ADDITION SO SUSTAINED IS BAD I N LAW AND BAD ON FACTS AND OUTSIDE THE SCOPE OF ASSESSMENT U/S 153A. 2. THE ID. CIT(A) HAS ERRED IN NOT GRANTING TELESCOPING EFFECT OF INCOME ALREADY SURRENDERED BY THE APPELLANT IN VARIOUS YEARS AND HAS ALSO FURTHER ERRED IN NOT GRANTING TELESCOPING EFFECT OF ADDITIONS SUSTAINED. 3. THE INTEREST CHARGED U/S 234B AND 234C IS BAD IN LAW AND BAD ON FACTS. 3 5 . THE REVENUE HAS RAISED THE FOLLOWING GROUNDS : (I) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) - I, JAIPUR HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO DELETE THE ADDITION OF RS. 65,10,000/ - MADE BY THE AO ON ACCOUNT OF DISALLOWANCE U/S 40A(3) OF THE I. T. ACT, 1961 IN RESPECT OF PURCHASE OF AGRICULTURAL LAND IGNORING THAT THE LAND WERE STOCK - IN - TRADE OF THE ASSESSEE AND ALSO I GNORING THE FACT THAT THE APPELLANT HAD FAILED TO SUBSTANTIATE THE EXCEPTIONAL CONDITIONS UNDER WHICH THE CASH PAYMENTS WERE MADE. 32 (II) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) - 1, JAIPUR HA& ERRED IN LAW AND ON FACTS IN DIRECTING TO DELETE THE ADDITION OF RS. 31,44,125/ - MADE BY THE AO ON ACCOUNT OF 50% DISALLOWANCE OUT OF THE LAND DEVELOPMENT EXPENSES, IGNORING THE FACT THAT THE ASSESSEE CONSISTENTLY FAILED TO FURNISH ANY EVIDENCE DESPITE OPPORTUNITIES GIVEN DURING ASSESSMENT AS WELL AS DURING APPELLATE PROCEEDING. (III) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) - 1, JAIPUR HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO DELETE THE SUBSTANTIVE ADDITION OF RS. 94,00,000/ - MADE BY THE AO ON ACCOUNT OF UNEXPLAINED INVESTM ENT IN CONSTRUCTION OF PROPERTIES, IGNORING THE FACT THAT THIS WAS PART OF THE UNDISCLOSED INCOME OF THE ASSESSEE DISCLOSED U/S 132(4) OF THE I.T. ACT, 1961 ON THE BASIS OF SEIZED DOCUMENTS WHICH WAS OFFERED FOR TAXATION IN THE HANDS OF THE ASSESSEE FIRM. (IV) WHETHER ON THE FACT AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) - 1, JAIPUR HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO DELETE THE SUBSTANTIVE ADDITION OF RS. 94,00,000/ - MADE BY THE AO ON ACCOUNT OF UNEXPLAINED INVESTMENT IN CONSTRUCTION OF PROPERTIES I GNORING THE FACT THAT THE ASSESSEE HAS CONSISTENTLY FAILED TO FURNISH ANY DETAILS NOR ANY SUBSTANTIATING EVIDENCES SUCH AS FUND FLOW STATEMENT, SOURCES OF INVESTMENT, BILLS VOUCHER COMPLETE BOOKS OF ACCOUNTS ETC. IN SPITE OF GRANTING REASONABLE AND SUFFICI ENT OPPORTUNITIES DURING THE 33 ASSESSMENT PROCEEDINGS OR EVEN DURING THE FIRST APPELLATE PROCEEDINGS TO JUSTIFY THE CLAIM REGARDING GENUINENESS OF THE EXPENDITURE. (V) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) - 1, JAIPUR HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO DELETE THE PROTECTIVE ADDITION OF RS. 9,51,465/ - MADE BY THE AO ON THE BASIS OF DIFFERENCE OF COST OF CONSTRUCTION ESTIMATED IN THE VALUATION REPORT OF THREE PROPERTIES AND AS SHOWN BY THE ASSESSEE, IGNORING THE FACT THAT THE A SSESSEE HAS FAILED TO FILE ANY DETAILS OR EVIDENCES REGARDING CONSTRUCTION ACTIVITIES BEFORE THE A.O OR THE DVO OR EVEN BEFORE THE LD. CIT(A). 36. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE CAREFULLY PERUSED THE RELEVANT MATERIAL ON RECORD. THE FIRST G ROUND OF ASSESSEES APPEAL WHICH IS REGARDING CLAIM OF INTEREST PAID ON UNSECURED LOAN OF RS. 3,65,039/ - HAS TO BE ALLOWED AS WE HAVE ALREADY HELD THAT THE UNSECURED LOAN STANDS EXPLAINED. ACCORDINGLY, GROUND NO. (1) OF ASSESSEES APPEAL STANDS ALLOWED. O THER GROUNDS ARE DISMISSED WITH SIMILAR REASONING AS WE HAVE GIVEN IN A.Y. 2004 - 05 AND 2005 - 06 ETC. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 34 3 7 . GROUND NO. 1 OF THE DEPARTMENTAL APPEAL IS IDENTICAL TO GROUND NO. 1 TAKEN IN OTHER A.YS . WE HAVE DELETED THE ADDITIONS MADE U/S 40A(3) MADE IN RESPECT OF PAYMENT MADE FOR THE PURCHASE OF AGRICULTURAL LAND. WITH THE SAME REASONING, WE DISMISS GROUND NO. (1) OF REVENUES APPEAL. 3 8 . SIMILAR IS THE POSITION OF GROUND NO. (II) WHICH RELATES TO 50% DISALLOWANCE OUT OF THE DEVELOPMENT EXPENSES CLAIMED BY THE ASSESSEE. WE HAVE DISMISSED THE COMMON ISSUE, IN EARLIER YEARS. FOLLOWING OUR VIEW, WE DISMISS GROUND NO. (II) OF A.Y. 2010 - 11 AS WELL. 39 . GROUND NO. (III) AND (IV) OF DEPARTMENTS APPEAL ARE IN RELATION TO DELETION OF AN ADDITION OF RS. 94,00,000/ - . TO EXPLAIN THE REASONS FOR ADDITION BY THE A.O AND THE REASONS FOR DELETION GIVEN BY THE LD. CIT(A), AS WELL AS THE WRITTEN SUBMISSION OF THE LD. CIT(DR) IN THIS RESPECT, WE INCORPORATE PARA 4 AT PAGES 5 TO 8 OF WRITTEN SUBMISSIONS OF THE DEPARTMENT FILED FOR A.Y. 2010 - 11 WHICH READS AS UNDER: DURING THE COURSE OF SEARCH ACTION, VARIOUS ISSUES WERE NOTICED ON THE BASIS OF MATERIAL FOUND AND SEIZED AN D C ONFRONTED T O T HE VARIOUS ASSESSEES OF TH IS GROUP. IN RESPONSE, THE MAIN PERSON OF THE GROUP NAMELY SHRI 35 MURLIDHAR SHARMA, WHO IS ALSO A PARTNER IN THE ASSESSEE FIRM, HAD ADMITTED UNEXPLAINED INVESTMENT/ EXPENDITURE/ UNDISCLOSED ASSETS IN HIS HANDS AS WELL AS IN THE HANDS OF THE ASSESSEE FIRM . D ETAILS OF WHICH ARE MENTIONED IN THE ASSTT. ORDER. (PARA 7, PAGES 3 TO 5) . ON EXAMINATION OF THE RECORDS DURING THE ASSESSMENT PROCEEDINGS IT WAS NOTICED THAT THE ASSESSEE FAILED TO DISCLOSE THE SURRENDERED AMOUNTS FULLY IN ITS RETURN OF INCOME FOR VARIOUS AYS. THE SURRENDER MADE BY THE ASSESSEE DURING THE COURSE OF SEARCH WAS ON THE BASIS OF SPECIFIC SEIZED DOCUMENTS WHICH PERTAINED TO THE ASSESSEE AND SEIZED FROM THEIR PREMISES. FURTHER, THE ASSESSEE SURRENDERED THE AMOUNT VOLUNTARILY AND UNDER THE STATE MENT TAKEN ON OATH AND RECORDED U/S 132(4) WHICH HAVE EVIDENTIARY VALUE AND BINDING ON THE ASSESSEE. FURTHER ANY OF THE ASSESSEES OF THE GROUP HAD NOT FILED ANY RETRACTION AT ANY STAGE. THE ASSESSEE HAS FAILED TO EITHER OFFER FOR TAXATION THE INCOMES DISCL OSED DURING THE SEARCH AND FAILED TO SPECIFY THE MANNER IN WHICH THE SUCH INCOME HAS BEEN DERIVED OR TO SUBSTANTIATE THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED AND TO PAY THE TAX IN RESPECT OF THE SAID UNDISCLOSED INCOMES. THEREFORE, AFTER GRAN TING OPPORTUNITY, THE ASSESSMENT WAS FINALIZED. FROM THE DISCUSSION MADE IN THE ASSESSMENT ORDER IT WAS CONCLUDED FACT THAT THE ASSESSEE HAS COMPLETELY FAILED TO SUBSTANTIATE HIS CLAIM WITH CORROBORATIVE EVIDENCE. 36 THUS, FOLLOWING TRANSACTIONS/INVESTMENTS R EMAINED UNEXPLAINED AND THE SAME I.E. RS. 1,29,00,000/ - WERE BROUGHT TO TAX IN THE HANDS OF SHRI MURLIDHAR SHARMA. ANNEXURE/ EXHIBIT PAGE NO. HEAD OF DISCLOSURE/DESCRIPTION AMOUNT OF DISCLOSURE A.Y. REFEREN CE TO STATEM ENT RECORDE D ON 15/12/ 2009 A 13 PAGE 1 TO 42 PURCHASE OF BUILDING MATERIALS FOR RESIDENCE UNDER CONSTRUCTION JOINTLY OWNED BY BROTHER 35,00,000/ - Q.NO. 21 A - 18 PAGE 1 TO 25 PURCHASE OF BUILDING MATERIALS FOR COMMERCIAL COMPLEX (SURRENDERED IN THE NAME OF FIRM M/S AYUSHI BUILDERS) 35,00,00 0/ - 2010 - 11 Q.NO. 21 FOR CONSTRUCTION OF FARM HOUSE (SURRENDERED IN THE NAME OF FIRM M/S AYUSHI BUILDERS) 25,00,000/ - 2010 - 11 Q.NO. 21 A 34 PAGE 2 SALE OF SHOPS IN KUIDEEPVIHAR 4,00,000/ - 2010 - 11 Q.NO. 21 A 33 ADVANCES GIVEN |OUT OF BOOKS] FOR PUR CHASE OF 15 BIGHA LAND FOR AIYUSHIVIHAR. 30,00,000/ - 2010 - 11 Q.NO. 22 GRAND TOTAL 1,29,00,000/ OUT OF TOTAL ADDITIONS OF RS. 1,29,00,000/ - , ADDITIONS OF RS. 35 LACS AS PER ANX - A - 18, ON ACCOUNT OF BUILDING MATERIALS FOR THE RESIDENCE UNDER CONSTRUCTI ON WAS MADE ON SUBSTANTIVE BASIS IN THE HANDS OF SHRI MURLIDHAR SHARMA AND THE OTHER ADDITIONS AGGREGATING TO RS. 94 LACS 37 CONSISTING OF RS. 25 LACS FOR CONSTRUCTION OF FARM HOUSE, RS. 4 LACS AS PER PAGE NO. 2 OF A - 34, RS. 30 LACS AS PER ANX - A - 33 WERE MADE ON SUBSTANTIVE BASIS IN THE HANDS OF M/S AAYSHI BUILDERS & DEVELOPERS AND IN THE HANDS OF SHRI MURALIDHAR SHARMA ON PROTECTIVE BASIS. THE LD. CIT(A) HAS DISCUSSED THE ISSUE IN PARAS 8 TO 9.2(PAGE 9 - 15) OF HIS APPELLATE ORDER. HE HAS OBSERVED THAT THE APP EAL IN THE CASE OF SHRI M. D. SHARMA WAS DECIDED BY THE HONBLE ITAT, JODHPUR BENCH VIDE ITA NO. 213 TO 215/JODH./2013 FOR A.Y. 2005 - 06, 2006 - 07 & 2010 - 11 DATED 24/09/2013 AND THE HONBLE ITAT WHILE DECIDING THE ISSUE OF RS. 35 LACS ADDED IN THE HANDS OF S HRI M. D. SHARMA ON ACCOUNT OF PURCHASE OF BUILDING MATERIAL FOR CONSTRUCTION OF RESIDENTIAL HOUSE HAD GONE THROUGH THE DETAILS OF ENTIRE ADDITION MADE BY THE AO AMOUNTING TO RS. 1,29,00,000/ - . IN VIEW OF THE SAID FINDING OF THE HONBLE ITAT REPRODUCED IN PARA 9.1 OF HIS ORDER HAS HELD THAT THE ADDITION MADE BY THE AO IN THE HANDS OF THE APPELLANT DOES NOT SURVIVE. HE HAS THEREFORE, DIRECTED TO DELETE THE ADDITION OF RS. 94 LACS MADE IN THIS CASE. IN THIS CONNECTION, IT IS SUBMITTED THAT THE HONBLE ITAT IN ITS ORDER IN THE CASE OF SHRI M.D. SHARMA HAD DIRECTED TO DELETE THE SUBSTANTIVE ADDITION OF RS. 35 LAKHS, MADE ON ACCOUNT OF PURCHASE OF BUILDING MATERIAL FOR PURCHASE OF RESIDENCE HOUSE IN HIS CASE FOR THE A.Y. 2010 - 11. THE HONBLE I TAT HAS ALSO DISMISS ED THE GROUND NO. 2 38 AND 3 TAKEN IN THE REVENUESS APPEA L IN THAT CASE REGARDING ADDITION MADE ON ACCOUNT OF UNDISCLOSED INCOME OF RS. 94,00,000/ - ON PROTECTIVE BASIS AND SET OFF OF UNDISCLOSED INCOME, AS DECIDED IN THE ASSESSEES APPEAL. THE HONBLE ITAT H AS OBSERVED THAT FROM THE PERUSAL OF THE DETAILS IT BECAME EVIDENTLY CLEAR THAT THE ASSESSEE HAD NOT RETRACTED THE SURRENDER. THE HONBLE ITAT HAS ACCEPTED THE ASSESSEES CONTENTION THAT SURRENDER OF INCOMES OF RS. 20 LAKHS (A.Y. 2007 - 08) RS. 13 LAKHS (A.Y . 2005 - 06 AND A.Y. 2006 - 07) (8,00,000 + 5,00,000), RS. 30 LAKHS (A.Y. 2008 - 09) AND RS. 50 LAKHS (A.Y. 2009 - 10) WAS MADE AGAINST WHICH THE ASSESSEE HAS SHOWN RS. 35 LAKHS (CONSTRUCTION OF HOUSE) RS. 35 LAKHS (CONSTRUCTION OF COMPLEX) RS. 25 LAKHS (FARM HOUS E) AND THUS, HAD ONLY CLAIMED CREDIT OF THE INCOME AVAILABLE WITH HIM ON ACCOUNT OF VARIOUS INCOMES SURRENDERED BY HIM IN THE VARIOUS YEARS PRIOR TO SEARCH. THE HONBLE ITAT HAS ALSO OBSERVED THAT THE ASSESSEE PRODUCED COMPLETE BOOKS OF ACCOUNTS, ALONGWITH FUND FLOW STATEMENT TO INDICATE THE AVAILABILITY OF FUND TO MAKE VARIOUS INVESTMENT AS SHOWN ABOVE. THUS, THE ASSESSEE HAS PRODUCED CERTAIN ADDITIONAL EVIDENCES FOR THE FIRST TIME AT THE LEVEL OF THE HONBLE ITAT AS THE WORKING OF FUND FLOW STATEMENT, SOU RCES OF INVESTMENT ETC. WERE NOT PRODUCED EVEN AT THE FIRST APPELLATE PROCEEDINGS. 39 THE HONBLE ITAT JODHPUR BENCH DECISION IN THE CASE OF SHRI MURLIDHAR SHARMA IN ITA NOS. 213 TO 215/JODH/2013 FOR THE A.Y. 2010 - 11 DATED 24/09/2013 HAS NOT BEEN ACCEPTED B Y THE DEPTT. AND A FURTHER APPEAL U/S 260A OF THE I.T. ACT, 1961 HAS BEEN FILED BEFORE THE HONBLE RAJASTHAN HIGH COURT ON 19/02/2014 WHICH IS PENDING FOR DECISION. THEREFORE, A FURTHER APPEAL WAS RECOMMENDED O N THIS GROUND IN THIS CASE ALSO . FROM THE FACT S DISCUSSED BY THE AO IN THE ASSESSMENT ORDER AND THE FINDINGS OF THE LD. CIT(A), IT APPEARS THAT DECISION THE LD. CIT(A) IS NOT ACCEPTABLE/JUSTIFIED FOR THE FOLLOWING REASONS: - (I) THE HONBLE ITAT JODH PUR BENCH DECISION IN THE CASE O F SHRI MURLIDHAR SHARMA IN ITA NOS. 213 TO 215/JODH/2013 FOR THE A.Y. 2010 - 11 DATED 24/09/2013 HAS NOT BEEN ACCEPTED BY THE DEPTT. AND A FURTHER APPEAL U/S 260AOF THE I.T. ACT, 1961 HAS BEEN FILED BEFORE THE HONBLE RAJASTHAN HIGH COURT ON 19/02/2014 WHICH IS PENDING FOR DECISION . (II) THE SURRENDER MADE VOLUNTARILY BY THE MAIN PERSON OF THE GROUP NAMELY SHRI MURLIDHAR SHARMA, WHO IS ALSO A PARTNER IN THE ASSESSEE FIRM, DURING THE COURSE OF SEARCH WAS ON THE BASIS OF SPECIFIC SEIZED DOCUMENTS WHICH PERTAIN TO THE ASSESSEES OF THE GROU P AND SEIZED FROM THEIR PREMISES. FURTHER, THE PARTNER OF THE ASSESSEE - : FIRM HAD SURRENDERED THE AMOUNT VOLUNTARILY AND UNDER THE STATEMENT TAKEN ON 40 OATH AND RECORDED U/S 132(4) WHICH HAVE EVIDENTIARY VALUE AND HENCE IS BINDING ON HIM AS WELL AS THE ASSES SEE - FIRM. FURTHER THE ASSESSEE HAD NOT FILED ANY RETRACTION AT ANY STAGE. THUS, NO CASE WAS MADE FOR RETRACTION AT ANY STAGE. (III) THE ASSESSEE HAS FAILED TO OFFER FOR TAXATION THE TRUE AND CORRECT INCOMES EVEN THE DISCLOSED DURING THE SEARCH AND FAILED TO SPE CIFY THE MANNER IN WHICH THE SUCH INCOME HAS BEEN DERIVED OR TO SUBSTANTIATE THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED AND INVESTMENTS MADE OUT OF THE SAID UNDISCLOSED INCOMES, WITH CORROBORATIVE EVIDENCES. IN THE STATEMENTS RECORDED U/S 132( 4) , EACH AND EVERY PAGES WERE CONFRONTED TO THE ASSESSEE AND AFTER CAREFULLY ANALYSIS OF FACTS, BETTER KNOWN TO THE PARTNER AND THE ASSESSEE - FIRM AT THAT TIME IN FULL CONSCIOUS, THE PARTNER HAD OFFERED UNDISCLOSED INCOME ON ACCOUNT OF VARIOUS HEAD (AS STA TED ABOVE) FOR TAXATION FOR VARIOUS A.YS. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, EACH & EVERY PAGE EVEN EACH AND EVERY ENTRIES WERE AGAIN CONFRONTED TO THE ASSESSEE VIDE THIS OFFICE VARIOUS QUERY LETTERS & ASSESSEE WAS ALSO ASKED TO SUBSTANTIATE HIS CLAIM WITH COGENT AND CONCRETE EVIDENCES TO PROVE THE CLAIM. BUT SUBMISSION OF ASSESSEE HAS NOT FOUND SUPPORTED WITH CORROBORATIVE EVIDENCE & FOUND IN VERY CASUAL NATURE. 41 (IV) ON GOING THROUGH THE STATEMENTS AND OTHER PROCEEDINGS DURING THE SEARCH, IT WAS NOTIC ED THAT THE BOOKS OF ACCOUNTS HAVE NOT BEEN MAINTAINED ON REGULAR BASIS. DURING THE COURSE OF THE SEARCH OPERATION, THE ASSESSEE HAS ACCEPTED CATEGORICALLY THAT HE HAS NOT MAINTAINED HIS REGULAR BOOKS OF ACCOUNTS. HE HAS ALSO ACCEPTED THAT THE LOOSE PAPERS NOTE BOOKS ETC. FOUND DURING SEARCH PERTAIN TO HIS FIRMS BUSINESS. NO REGULAR BOOKS OF ACCOUNTS WERE FOUND EITHER HARD COPIES OR IN THE COMPUTERS ETC. DURING SEARCH. THUS IT IS ESTABLISHED THAT THE ASSESSEE HAS NOT MAINTAINED HIS REGULAR BOOKS OF ACCOUNT S AND THE RETURNS OF INCOME, WHEREVER FILED WERE FILED WITHOUT PROPER BASIS OR SUPPORTING EVIDENCES. SOME OF SUCH EVIDENCES WERE PRODUCED BEFORE THE HONBLE ITAT FOR THE FIRST TIME IN THE CASE OF SHRI M.D. SHARMA. (V) AS DISCUSSED IN THE ASSESSMENT ORDER, THE ASSESSEE HAS COMPLETELY FAILED TO SUBSTANTIATE HIS CLAIM WITH CORROBORATIVE EVIDENCE. THE PRIMARY ONUS LIES UPON THE ASSESSEE TO EXPLAIN EACH AND EVERY ENTRY AS WELL AS TRANSACTIONS APPEARING THE ENTIRE SEIZED MATERIAL HAS NOT BEEN ATTEMPTED TO BE DISCHAR GED. HOWEVER, ON UNDER OATH, THE UNEXPLAINED INVESTMENT/ EXPENSES/ ADVANCES, OUT SIDE THE BOOKS OF ACCOUNT, WHICH WERE NOT REGULARLY MAINTAINED AND NOT DECLARED IN RETURN OF INCOME, WERE OFFERED FOR TAXATION U/S. 132(4) BUT THE ASSESSEE HAS NOT DECLARED THE SAME IN THE RETURN FILED, 42 NOR WERE RETRACTED. VII) THE FIRST APPEALS IN RESPECT OF THE SUBSTANTIVE ADDITION AGGREGATING TO RS. 94 LAKHS MADE IN THE CASE OF THE FIRM M/S AYUSHI BUILDERS & DEVELOPERS HAS BEEN DECIDED NOW BY THE LD. CIT(A). THE HONBLE ITAT S FINDING IN THE CASE OF SHRI M. D. SHARMA THAT THE SUSTENANCE OF THE SUBSTANTIVE ADDITION EVEN IN THE HANDS OF THE FIRM WAS NOT CORRECT HAS BEEN MADE WITHOUT CONSIDERING THE FACTS RELATING TO THE PENDING APPEAL IN THE CASE OF THE FIRM AND ALSO IGNORING T HE FACT THAT SHRI M. D. SHARMA THE ASSESSEE HIMSELF HAD VOLUNTARILY MADE SURRENDER U/S 132(4) DURING SEARCH, AS A PARTNER AND OFFERED FOR TAXATION IN THE CASE OF THE FIRM ONLY. THUS, THE HONBLE ITATS FINDING MADE IN THE CASE OF SHRI M. D. SHARMA ON THE I SSUE REGARDING M/S AYUSHI BUILDERS AND DEVELOPERS WITHOUT CONSIDERING, OVERALL FACTS OF THE CASE, MAY BE TERMED AS PERVERSE. VIII) THE ASSESSEE HAS FAILED TO HONOUR THE VOLUNTARY SURRENDER MADE U/S 132(4) OF THE I.T. ACT, 1961 DURING SEARCH OPERATION WHI CH WAS MADE ON THE BASIS OF SEIZED PAPERS, DOCUMENTS, ASSETS ETC. FURTHER THE ASSESSEE HAS FAILED TO MAKE ANY VALID RETRACTION. THEREFORE, THE SURRENDER MADE U/S 132(4) WAS BINDING ON THE ASSESSEE. RELIANCE IN THIS REGARD IS PLACED IN THE FOLLOWING JUDGMEN TS: - 43 (I) BHAGIRATH AGARWAL V/S CIT (2013) 351 ITR 143 (DELHI) IX) SHRI MURLIDHAR SHARMA HAD SURRENDERED INCOME IN RESPECT OF UNACCOUNTED INCOME OF THE COMMI SSION, TRADING BUSINESS. A PART OF THE SAID INCOME MUST BE INVESTED IN THE ASSESSEES GOODS I. E. LANDS, PLOTS ETC. WHICH WERE TRADED AND HENCE IT CANNOT BE INTERPRETED THAT THE ENTIRE SURRENDERED INCOME WAS CONSIDERED FOR INVESTMENT IN THE CONSTRUCTION OF PROPERTIES. THE HONBLE ITAT HAS NOT CONSIDERED THIS ASPECT, WHILE DECIDING THE ISSUE RELATING TO PROTECTIVE ADDITION IN THE CASE OF SHRI M. D. SHARMA. THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS, OR EVEN AT THE APPELLATE PROCEEDINGS, HAS FAILED TO SUBSTANTIATE HIS CLAIM REGARDING TELESCOPY OF SURRENDERED INCOME WITH REFERENCE TO ANY CORROBORAT IVE EVIDENCES TO SUPPORT HIS CLAIM OF INVESTMENTS. X) T HE HONBLE ITATS OBSERVATION IN THE CASE OF SHRI M. D. SHARMA THAT THE UNDISCLOSED INCOME WAS EARNED BY THE ASSESSEE AND UTILIZED IN THE INVESTMENT IN CONSTRUCTION AND SUCH INCOME DOES NOT RELATE TO THE FIRM AS THE FUNDS WERE AVAILABLE WITH THE PARTNERS AND THE CREDIT OF THE SAME WAS SHOWN BY THEM TOWARDS INVESTMENT. THEREFORE, IT HAS HELD THAT SEPARATE ADDITION CANNOT BE MADE ON SUCH EXPENDITURE. THE HONBLE ITAT HAS MADE THOSE OBSERVATIONS IN THE CA SE OF THE FIRM WITHOUT CONSIDERING THE FACTS OF THE FIRM, IN RESPECT OF THE APPEALS WHICH WERE PENDING AT THAT TIME. 44 IN THIS CONNECTION IT IS SUBMITTED THAT THE HONBLE ITAT DECISION ON THIS ISSUE WHERE THE ADDITION WAS MADE ON SUBSTANTIVE BASIS IN THE CAS E OF SHRI M. D. SHARMA IN ITS COMMON ORDER IN ITA NO. 213 TO 215/JODH./2013 FOR THE A.Y. 2010 - 11 HAS NOT BEEN ACCEPTED BY THE DEPARTMENT AND A FURTHER APPEAL U/S 260A OF THE I. T. ACT HAS BEEN FILED BEFORE THE HONBLE RAJASTHAN HIGH COURT ON 19/02/2014 WHI CH IS PENDING FOR DECISION. THE DECISION REGARDING FILING OF APPEAL U/S 260A OF THE I. T. ACT, 1961 IN THE CASE OF SHRI M. D. SHARMA IN ITA NOS. 213 TO 215/JODH./2013 FOR THE A.YS. 2006 - 07 & 2010 - 11 WAS COMMUNICATED TO THIS OFFICE VIDE THE CIT(C), JAIPUR O FFICE LETTER NO. CIT(C)/TECH./JPR/CSR/2013 - 14/3203 DT. 14/02/2014. THEREFORE, A FURTHER APPEAL TO THE HONBLE ITAT ON THIS ISSUE H AS BEEN FILED IN THIS CASE. IN VIEW OF THE ABOVE, IT IS SUBMITTED THAT THE LD. CIT(A) HAS ERRED IN DIRECTING TO DELETE THE S AID ADDITION AND HENCE THE HONBLE ITAT MAY KINDLY BE REQUESTED TO SET - ASIDE THE ORDER OF THE LD. CIT(A) AND UPHOLD THE ADDITION MADE BY THE AO ON THIS GROUND AS DISCUSSED IN THE ASSESSMENT ORDER. THUS IT BECOMES VERY OBVIOUS THAT THIS BENCH HAS TAKEN A VIEW ON THIS ISSUE AS DISCUSSED IN THE WRITTEN SUBMISSIONS OF THE DEPARTMENT ITSELF. FOR KEEPING THE CONSISTENCY WE CANNOT DEVIATE FROM OUR ABOVE VIEW WHICH HAS BEEN TAKEN AFTER CONSIDERING ENTIRE GAMUT OF FACTS AND AF T ER 45 HEARING BOTH THE PARTIES. ACCORD INGLY, WE CANNOT ALLOW GROUND NOS . (III) AND (IV) OF DEPARTMENTS APPEAL AND THEREFORE, DISMISS THEM BOTH. 40 . GROUND NO. (V) IS IN RELATION TO DELETION OF ADDITION OF RS. 9,51,465/ - MADE BY THE A.O ON THE BASIS OF DIFFERENCE OF COST OF CONSTRUCTION ESTIMA TED IN THE VALUATION REPORT IN RESPECT OF THE PROPERTIES. FOR COMPLETE DETAIL OF THIS ISSUE, WE CHOSE TO EXTRA CT PARA, AT PAGE 8 OF THE WRITTEN SUBMISSIONS FILED BY THE LD. CIT(DR). THIS PARA R E ADS AS UNDER: DURING THE ASSESSMENT PROCEEDINGS, A REFERENC E WAS MADE TO THE VALUATION CELL U/S 142A OF THE INCOME TAX ACT, 1961 FOR DETERMINING THE CONSTRUCTION OF FOLLOWING PROPERTIES: 1. COMMERCIAL COMPLEX ON PLOT NO. 44, ARTISAN COLON, MASURIA, JODHPUR 2. FARM HOUSE AT VAIBHAV ENCLAVE, VILLAGE PAI, JAISALMER R OAD, JODHPUR. 3. RESIDENTIAL HOUSE AT 221 - 222, SHYAM NAGAR, PAI LINK ROAD, JODHPUR THE VALUATION OFFICER VIDE HIS REPORTS DATED 28.12.2011 DETERMINING THE COST OF CONSTRUCTIONS OF THESE PROPERTIES FOR A.Y. 2010 - 11 AS UNDER: - 1. COMMERCIAL COMPLEX ON PLOT N O. 44, ARTISAN COLON, 2. MASURIA, JODHPUR RS. 16184200/ - 2. FARM HOUSE AT VAIBHAV ENCLAVE, VILLAGE PAL, JAISALMER ROAD, JODHPUR. RS. 11751000/ - 46 3. RESIDENTIAL HOUSE AT 221 - 222, SHYAM NAGAR, PA L LINK ROAD, JODHPUR RS. 16763800/ - FROM THE REPORT OF THE VALUA TION OFFICER, IT WAS CONCLUSIVELY ESTABLISHED THAT COST OF CONSTRUCTION OF THE SAID PROPERTIES INVESTED BY THE ASSESSEE AND SHRI M. D. SHARMA IN THE UNDER CONSIDERATION WAS RS. 44699000/ - . THE ASSESSEE HAS NOT SUBMITTED ANY DETAILS OF EXPENDITURE INCURRED ON CONSTRUCTION OF PROPERTIES BEFORE THE AO, THE DVO, WHEREAS IN THE RETURNS OF INCOME FILED, HE CLAIMED TO HAVE INVESTED RS. 34747535/ - FOR CONSTRUCTION OF THESE PROPERTIES. THUS, THERE WAS DIFFERENCE IN VALUATION WORKS OUT TO RS. 9951465/ - AND THIS AMOUN T OF RS. 9951465/ - WAS TREATED AS UNEXPLAINED INVESTMENT U/S 69 OF THE I.T. ACT IN RESPECT OF THE ASSESSEES RESIDENCE. HOWEVER, ADDITION OF RS. 9000000/ - WAS MADE UNDER THE HEAD SURRENDER OF INCOME ON ACCOUNT OF UNEXPLAINED INVESTMENT IN CONSTRUCTION, T HEREFORE, THE REMAINING AMOUNT OF RS. 951465/ - WAS ADDED TO THE TOTAL INCOME OF SHRI MURLIDHAR SHARMA ON SUBSTANTIVE BASIS AND IN THE CASE OF THE ASSESSEE ON PROTECTIVE BASIS. THE LD. CIT(A) IN ITS ORDER HAS DISCUSSED THE ISSUE AT PARA 10 TO 11 (PAGES 15 - 18) AND HAS OBSERVED THAT THE SUBSTANTIVE ADDITION MADE IN THE HANDS OF SHRI M. D. SHARMA WAS DELETED BY THE HON B LE I TAT IN ITS COMMON ORDER IN ITA NOS. 213 TO 215/JODH/2013. THEREFORE, THE LD. C'IT(A) HAS HELD THAT THE ADDITION MADE ON PROTECTIVE BASIS I N THE HANDS OF THE APPELLANT DOES NOT SURVIVE AND 47 ACCORDINGLY HAS DIRECTED TO DELETE THE ADDITION MADE IN THIS CASE. IN THIS CONNECTION IT IS SUBMITTED THAT THE HONBLE ITAT DECISION ON THIS ISSUE WHERE THE ADDITION WAS MADE ON SUBSTANTIVE BASIS IN THE CAS E OF SHRI M. D. SHARMA IN ITS COMMON ORDER IN ITA NO. 213 TO 215/JODH./2013 FO R THE A.Y. 2010 - 11 HAS NOT.BEE ACCEPTED BY THE DEPARTMENT AND A FURTHER APPEAL U/S 260A OF THE I. T. ACT HAS BEEN FILED BEFORE THE HONBLE RAJASTHAN HIGH COURT ON 19/02/2014 WHIC H IS PENDING FOR DECISION. THE DECISION REGARDING FILING OF APPEAL U/S 260A OF THE I. T. ACT, 1961 IN THE CASE OF SHRI M. D. SHARMA IN ITA NOS. 213 TO 215/JODH./2013 FOR THE A.YS. 2006 - 07 & 2010 - 11 WAS COMMUNICATED TO THIS OFFICE VIDE CIT(C), JAIPUR OFFIC E LETTER NO. CIT(C)/TECH./JPR/CSR/2013 - 14/3203 DT. 14/02/2014. THEREFORE, A FURTHER APPEAL TO THE HONBLE ITAT ON THIS ISSUE HAS BEEN FILED IN THIS CASE. IN VIEW OF THE ABOVE, IT IS SUBMITTED THAT THE LD. CIT(A) HAS ERRED IN DIRECTING TO DELETE THE SAID AD DITION AND HENCE THE HONBLE ITAT MAY KINDLY BE REQUESTED TO SET - ASIDE THE ORDER OF THE LD. CIT(A) AND UPHOLD THE ADDITION MADE BY THE AO ON THIS GROUND AS DISCUSSED IN THE ASSESSMENT ORDER. THE POSITION OF THIS ISSUE IS ALSO SIMILAR. THE LD. CIT(A) HAS FOLLOWED OUR VIEW TAKEN IN THE GROUP CASES TO WHICH THIS ASSESSEE BELONGS TO. 48 HENCE, WE DO NOT FIND ANY INFIRMITY IN THE IMPUGNED FINDING AND THEREFORE, DISM I SS GROUND NO. (V) OF DEPARTMENTS APPEAL. 41 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTL Y ALLOWED AND THAT OF THE REVENUE IS DISMISSED. 4 2 . TO SUM UP, IN THE RESULT ASSESSEES APPEALS IN: ITA NO. 251/JODH/2014 (A.Y. 2004 - 05) STANDS PARTLY ALLOWED. ITA NO. 252/JODH/2014 (A.Y. 2005 - 06) STANDS PARTLY ALLOWED ITA NO. 253/JODH/2014 (A.Y. 2007 - 08 ) STANDS PARTLY ALLOWED ITA NO. 254/JODH/2014 (A.Y. 2008 - 09) STANDS PARTLY ALLOWED ITA NO. 255/JODH/2014 (A.Y. 2009 - 10) STANDS PARTLY ALLOWED ITA NO. 256/JODH/2014 (A.Y. 2010 - 11) STANDS PARTLY ALLOWED REVENUES APPEALS IN: ITA N O . 347/JODH/2014 (A.Y. 20 05 - 06) STANDS DISMISSED ITA NO. 348/JODH/2014 (A.Y. 2007 - 08) STANDS DISMISSED ITA NO. 349/JODH/2014 (A.Y. 2008 - 09) STANDS DISMISSED ITA NO. 350/JODH/2014 (A.Y. 2009 - 10) STANDS DISMISSED ITA NO. 351/JODH/2014 (A.Y. 2010 - 11) STANDS DISMISSED ORDER PRONOUN CED IN OPEN COURT ON 14 TH AUGUST 2014. SD/ - SD/ - (N.K.SAINI) [HARI OM MARATHA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 14 TH AUGUST , 2014 V L/ - 49 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT BY ORDER 4. THE CIT(A) 5. THE DR SENIOR PRIVATE SECRETARY ITAT, JODHPUR