The ACIT- 2(1), Bhopal V. M/s NSB BPO Solution Pvt. Ltd., Bhopal

ITA 256/IND/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 82696 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 5 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-10-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 01-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: LALCHAND
• Keywords: Unexplained expenditure; Gift; Search and seizure; Salary income; Loose papers; Document seized; Opportunity of being heard; Source of fund; Additional evidence; Corroborative evidences; Documents seized
• Section: 153A; 69; 139

Judgement Text

BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 1 , , IN THE INCOME TAX APPELLATE TRIB UNAL, INDORE BENCH, INDORE BEFORE SHRI C.M. GARG, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER I.T.A. NOS. 256 TO 263/IND/2013 ASSESSMENT YEARS 2001-02 TO 2008-09 SHRI BERNARD JOHN BHOPAL PAN AAWPJ 0161B :: /APPELLANT VS DY. COMMISSIONER OF INCOME TAX 1(1), BHOPAL :: / RESPONDENT / REVENUE BY SHRI ASHISH GOYAL AND SHRI N.D. PATWA !' #$% / ASSESSEE BY SHRI LALCHAND & '' %( DATE OF HEARING 19.5.2017 )*+,- %( DATE OF PRONOUNCEMENT 31 .5.2017 / O R D E R PER BENCH THESE APPEALS HAVE BEEN FILED BY THE ASSESSEE AGAIN ST CONSOLIDATED ORDER OF THE LEARNED CIT(A)-I, BHOPAL, DATED 21.6.2013 IN FIRST APPEAL NOS. CIT(A)-I/BPL/IT-353 TO 359/08- 09 & 176//10- 11 FOR THE ASSESSMENT YEAR 2001-02 TO 2008-09. BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 2 2. SINCE IDENTICAL ISSUES ARE INVOLVED IN THESE APP EALS, WE PROPOSE TO DISPOSE OF THE SAME BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 3. GROUND NO. 1 IN ALL THESE APPEALS IS GENERAL IN NATURE AND AS SUCH NEEDS NO ADJUDICATION. 4. THE FACTS, IN NUTSHELL, ARE THAT THE ASSESSEE IS AN INDIVIDUAL DERIVING INCOME FROM SALARY, HOUSE PROPERTY AND OTH ER SOURCES INCOME. IN THIS CASE A SEARCH & SEIZURE OPERATION U /S 132(1) OF THE IT ACT WAS CONDUCTED ON THE RESIDENTIAL PREMISES AT VAMALAYAM, HOSHANGABAD ROAD, BHOPAL OF SHRI CE. FERNANDES, FAC TORY PREMISES OF GEI HAMON INDUSTRIES LIMITED, 26A, INDU STRIAL AREA, GOVINDPURA, BHOPAL AND ON RESIDENTIAL PREMISES OF T HE APPELLANT, SHRI BERNARD JOHN AT E-4/156, ARERA COLONY, BHOPAL ON 15.11.2006. DURING SEARCH AND SEIZURE OPERATION, DO CUMENTS RELATING TO ASSESSEE, SHRI BARNARD JOHN, WERE FOUND . SUBSEQUENTLY, NOTICES U/S 153A DATED 15.03.2007 WERE ISSUED TO TH E APPELLANT FOR FURNISHING RETURNS OF INCOME FOR A.Y.2001-02 TO A.Y . 2006-07. THE APPELLANT SUBMITTED BEFORE THE AO THAT ORIGINAL RET URNS MAY BE TREATED AS RETURNS FURNISHED IN RESPONSE TO NOTICES U/S 153A FOR BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 3 A.Y. 2001-02 TO A.Y. 2006-07. THE APPELLANT FURNISH ED RETURNS OF INCOME FOR A.Y. 2007-08 AND A.Y. 2008-09 U/S 139. T HE POSITION OF RETURNS FURNISHED AND ASSESSMENTS COMPLETED IS AS U NDER :- A.Y. DATE OF ORIGINAL RETURN FILED RETURN INCOME U/S 139 RETURN INCOME U/S 153A DATE OF FILING RETURN U/S 153A ASSESSED INCOME 2001 - 02 07.11.2001 RS.5,37,821/ - RS.5,37,821/ - 0 2.07 .2007 RS.8,48,713/ - 2002 - 03 08.08.2002 RS.6,11,914/ - RS.6,11,914/ - 02.07.2007 RS.8,09,914/ - 2003 - 04 03.10.2003 RS.6,18,878/ - RS.6,18,878/ - 02.07.2007 RS.7,08,378 2004 - 05 28.10.2004 RS.6,39,425/ - RS.6,39,425/ - 02.07.2007 RS.8,28,870/ - 2005 - 06 04.08.2005 RS.6,95,884/ - RS.6,95,884/ - 02.07.2007 RS.16,01,408/ - 2006 - 07 31.07.2006 RS.9,88,300/ - RS.9,88,300/ - 02.07.2007 RS.13,19,932/ - 2007 - 08 31.07.2007 RS.15,72,736/ - - - RS.17,08,740/ - 2008 - 09 31.07.2008 RS.22,61,270/ - - - RS.23,81,270/ - 5. IN THE ASSESSMENT YEAR 2001-02 THE ASSESSEE HAS TAKEN THE GROUND TO THE EFFECT THAT THE COMMISSIONER OF INCOM E TAX (APPEALS) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS. 27,592/- OUT OF OPENING CASH BALANCE AS ON 1.4.2000 OF RS. 77,592/- . 6. THE RELEVANT FACTS ARE THAT THE ASSESSING OFFICE R NOTED THAT THE ASSESSEE HAD CLAIMED OPENING CASH BALANCE OF RS.77, 792/- AS ON 01.04.2000 IN THE CASH FLOW STATEMENT FOR F.Y. 2000 -01 FURNISHED. THE ASSESSING OFFICER NOTED THAT NO PERSONAL BALANC E SHEET WAS BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 4 FURNISHED ALONGWITH ORIGINAL RETURNS OF INCOME. THE APPELLANT HAD SHOWN OPENING CASH BALANCE AS ON 01.04.2000 BECAUSE MANY SEIZED MATERIALS/ DOCUMENTS WERE FOUND FOR A.YS. 20 01-02 TO 2007- 08 REGARDING INVESTMENT IN JEWELLERY, UTI FUND, CAP ITAL INTRODUCTION IN THE FIRM ETC. THE ASSESSING OFFICER NOTED THAT T HE APPELLANT HAD PLANNED TO SHOW OPENING CASH IN HAND OF RS.77,792/- IN A.Y. 2001- 02 TO EXPLAIN THE SOURCES FOR INVESTMENT IN JEWELLE RY & OTHER HOUSEHOLD ARTICLES AND TO JUSTIFY CASH IN HAND FOUN D DURING THE COURSE OF SEARCH. THE ASSESSING OFFICER FURTHER NOT ED THAT THE OPENING BANK BALANCE AS PER BANK BOOK WAS RS.34,938 /- AS ON 01.04.2000, WHICH WAS ALSO NOT REFLECTED IN CASH FL OW STATEMENT WHEREAS CLOSING BALANCE OF CASH AND BANK WAS SHOWN. THE ASSESSING OFFICER CONCLUDED THAT THE SEIZED MATERIA L INDICATES THAT THE APPELLANT AND HIS WIFE HAD MADE A NUMBER OF UND ISCLOSED EXPENSES FOR PURCHASE OF JEWELLERY, FURNITURE, UPHO LSTERY AND OTHER HOUSEHOLD GOODS DURING BLOCK PERIOD. HE ALSO NOTICE D THAT A NUMBER OF CASH DEPOSITS WERE ALSO FOUND IN THEIR BA NK ACCOUNTS, HENCE, IT APPEARS THAT BOTH OF THEM HAD UNACCOUNTED CASH IN THEIR HANDS. ACCORDINGLY, THE ASSESSING OFFICER DID NOT A CCEPT THE SUBMISSION OF THE ASSESSEE REGARDING AVAILABILITY O F CASH OF BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 5 RS.77,792/- AS ON 01.04.2000 AND MADE ADDITION OF R S.77,792/- IN THE HANDS OF THE ASSESSEE-APPELLANT. 7. BEING AGGRIEVED, THE ASSESSEE WENT IN APPEAL BEF ORE THE COMMISSIONER OF INCOME TAX (APPEALS). THE FIRST APP ELLATE AUTHORITY AFTER CONSIDERING THE MATTER IN THE LIGHT OF THE SU BMISSIONS OF THE ASSESSEE OBSERVED AS UNDER :- 5.4 I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE APPELLANT AND FACTS OF THE CASE. IT IS AN ADMITTED FACT THAT THE APPELLANT HAD NOT PREPARED ANY BALANCE SHEET OR CASH FLOW STA TEMENT BEFORE THE DATE OF SEARCH AND NO SUCH DOCUMENT WAS FILED ALONGWITH THE ORIGINAL RETURNS OF INCOME. THE APPE LLANT HAD PREPARED CASH FLOW STATEMENT AFTER THE SEARCH TO EX PLAIN THE SOURCES OF FUND UTILIZED FOR MAKING INVESTMENT AND EXPENDITURE IN SUBSEQUENT ASSESSMENT YEARS COVERED U/S 153A OF THE IT ACT. THE APPELLANT HAD CLAIMED OPENING CASH IN HAND OF RS.77,592/- AS ON 01.04.2000. THOUGH THERE IS NO DI RECT EVIDENCE OR DOCUMENT FOUND DURING THE COURSE OF SEA RCH TO SHOW THE AVAILABILITY OF CASH OF RS.77,592/- WITH THE AP PELLANT AS ON 01.04.2000, BUT IT IS NOTICED THAT THE APPELLANT HA D WITHDRAWN BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 6 AN AMOUNT OF RS.45,600/- FROM POST OFFICE SAVING SC HEME ON 16.02.2000 AND THEREAFTER, THERE WAS NO EVIDENCE TO SHOW THAT THE AMOUNT WAS UTILIZED FOR ANY SPECIFIC PURPOSE. I T MAY ALSO BE NOTED THAT AT THE TIME OF SEARCH ON 15.11.2006, THE CASH OF RS.41,740/- WAS FOUND AT THE RESIDENTIAL PREMISES O F THE APPELLANT. THEREFORE, CONSIDERING THE TOTALITY OF T HE FACTS AND CIRCUMSTANCES OF THE CASE, IT WOULD BE REASONABLE T O CONSIDER THAT CASH AVAILABLE WITH THE APPELLANT AS ON 01.04. 2000 WAS RS.50,000/-. THE BALANCE AMOUNT OF RS.27,592/- (RS. 77,292 RS.50,000) REMAINED UNEXPLAINED WHICH WAS SHOWN TO BE UTILIZED FOR MEETING OUT INVESTMENT AND EXPENDITURE DURING THE YEAR. ACCORDINGLY, ADDITION TO THE EXTENT OF RS.27, 592/- IS CONFIRMED. THUS, THE APPELLANT GETS A RELIEF OF RS. 50,000/- IN THIS GROUND . 8. AGAINST THE CONFIRMATION OF ADDITION OF RS.27,59 2/- THE ASSESSEE-APPELLANT IS IN APPEAL BEFORE THE TRIBUNAL . 9. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE S IDES. THE MAIN CONTENTION OF THE ASSESSEE IS THAT THE ASSESSI NG OFFICER HAS NOT GIVEN ANY SPECIFIC FINDING AND WHEN THE LIABILI TY SIDE OF THE BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 7 BALANCE SHEET IS NOT DENIED BY THE ASSESSING OFFICE R THEN THE ASSET SIDE CANNOT BE DENIED WITHOUT ANY SUBSTANTIAL REASO N AND BASIS. THE LEARNED COUNSEL FOR THE ASSESSEE POINTED OUT TH AT SEARCH WAS CONDUCTED ON 15.11.2006 AND THE ASSESSEE WITHDREW T HE AMOUNT OF RS.46,500/- FROM POST OFFICE SAVINGS SCHEME ON 16.2 .2000 AND THEREAFTER THERE WAS NO EVIDENCE TO SHOW THAT THE A MOUNT WAS UTILISED BY THE ASSESSEE FOR ANY SPECIFIC PURPOSES. THEREFORE, THE OPENING CASH BALANCE AS ON 1.4.2000 COULD NOT BE DO UBTED OR DENIED. 10. ON THE OTHER HAND, THE LEARNED DR SUPPORTED THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) WITH THE SUBMI SSION THAT THE ASSESSEE WAS GRANTED RELIEF OF RS. 50,000/- BY THE COMMISSIONER OF INCOME TAX (APPEALS), THEREFORE, NO FURTHER RELIEF CAN BE GIVEN TO THE ASSESSEE. 11. ON CAREFUL CONSIDERATION OF THE ABOVE RIVAL SUB MISSIONS, FROM PARA 5.4 OF THE FIRST APPELLATE ORDER WE OBSERVE TH AT AFTER CONSIDERING THE ENTIRE RELEVANT FACTS OF THE CASE, THE COMMISSIONER OF INCOME TAX (APPEALS) GRANTED RELIEF OF 2/3 RD PORTION OF THE OPENING CASH BALANCE AS CLAIMED BY THE ASSESSEE AS ON 1.4.2000. BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 8 ADMITTEDLY AND UNDISPUTEDLY, THE BALANCE SHEET, CAP ITAL ACCOUNT AND CASH FLOW STATEMENT HAVE BEEN MADE AFTER SEARCH AND SEIZURE OPERATION AND THE SAME HAVE BEEN FILED ALONG WITH T HE RETURN FILED U/S 153A OF THE ACT. THE REMAINING UNEXPLAINED AMO UNT OF RS. 27,592/- WHICH WAS SHOWN TO HAVE BEEN UTILISED FOR MEETING OUT INVESTMENT AND EXPENDITURE DURING THE F.Y. 1999-00 CANNOT BE HELD AS EXPLAINED ON THE STRENGTH OF WITHDRAWALS FROM PO ST OFFICE SAVINGS SCHEME ON 16.2.2000 AS THE COMMISSIONER OF INCOME T AX (APPEALS) HAS ALREADY GRANTED RELIEF OF RS. 50,000/- BY CONSI DERING THIS RELEVANT FACT. THEREFORE, THE ADDITION PARTLY CONFI RMED BY THE COMMISSIONER OF INCOME TAX (APPEALS) IS SUSTAINABLE . WE ARE UNABLE TO SEE ANY VALID REASON TO INTERFERE WITH TH E ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) AND THUS WE CO NFIRM THE SAME. ACCORDINGLY, GROUND NO. 1 OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2001-02 IS DISMISSED. 12. GROUND NO. 3 IN THE ASSESSMENT YEARS 2001-02 AN D GROUND NO. 2 IN ASSESSMENT YEARS 2002-03 TO 2007-08 RELATE TO THE LOAN ADVANCED BY THE ASSESSEE-APPELLANT TO OTHERS IN EAR LIER YEARS. BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 9 13. BRIEFLY STATED, THE ASSESSING OFFICER NOTED THA T THE ASSESSEE- APPELLANT HAD CLAIMED THAT HE HAD RECEIVED AMOUNTS FROM VARIOUS PERSONS WHICH WERE GIVEN TO THEM BEFORE THE BLOCK P ERIOD. THE ASSESSING OFFICER ASKED THE ASSESSEE-APPELLANT TO F URNISH NECESSARY EVIDENCES/DETAILS OF SUCH PERSONS FROM WHOM ADVANCE S WERE RECEIVED BACK AND ALSO ASKED TO PRODUCE SUCH PERSON S FOR VERIFICATION. BUT THE APPELLANT DID NOT FURNISH ANY EVIDENCE/DETAILS TO SUBSTANTIATE HIS CLAIM NOR PRODUCED SUCH PERSONS FOR VERIFICATION. THE AO OBSERVED THAT THE APPELLANT HA D PURPOSELY PREPARED CASH FLOW STATEMENT TO JUSTIFY UNEXPLAINED EXPENDITURE AND BANK DEPOSITS BY HIM AND HIS WIFE SMT. LEENA B. JOHN. THE AO OBSERVED FROM CASH FLOW STATEMENTS SUBMITTED BY APP ELLANT FOR A.YS. 2001-02 TO 2007-08 THAT THE ASSESSEE-APPELLAN T PLANNED TO SHOW AVAILABILITY OF CASH IN ADDITION TO INCOME SHO WN IN THE A.YS. 2001-02 TO 2007-08 TO EXPLAIN THE SOURCES FOR INVES TMENT IN THE LAND AND CASH OUT FLOW WHICH WAS AN AFTERTHOUGHT. THE ASSESSING OFFICER OBSERVED THAT THE APPELLANT FAILED TO DISCH ARGE THE ONUS, WHICH WAS LYING UPON THE APPELLANT, TO SUBSTANTIATE HIS CLAIMS OF ADVANCES RECEIVED FROM VARIOUS PERSONS IN VARIOUS Y EARS BY PROVING IDENTITY & CREDITWORTHINESS OF THE PERSONS AND GENU INENESS OF THE BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 10 TRANSACTIONS. ACCORDINGLY, THE ASSESSING OFFICER AD DED ABOVE ADVANCES TREATING THE SAME AS UNEXPLAINED INCOME OF THE ASSESSEE- APPELLANT. 14. ON APPEAL, THE COMMISSIONER OF INCOME TAX (APP EALS) AFTER CONSIDERING THE ISSUE AT LENGTH, FOUND NO MERIT IN THE CLAIM OF THE ASSESSEE AND ACCORDINGLY DISMISSED THE SAME WITH TH E FOLLOWING OBSERVATIONS :- 6.3 I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE APPELLANT AND FACTS OF THE CASE. IT MAY BE NOTED TH AT THE APPELLANT HAD SHOWN THE RECEIPT OF DIFFERENT AMOUNT S ON ACCOUNT OF REFUND OF ADVANCES FROM VARIOUS PERSONS DURING A.YS.2001-02 TO 2007-08. THE APPELLANTS CLAIM IS THAT ALL THESE AMOUNTS WERE GIVEN AS ADVANCE TO DIFFERENT PE RSONS IN EARLIER YEARS BEFORE 31.03.2000 I.E. BEFORE THE PREVIOUS YEAR RELEVANT TO A.Y.2000-01 COVERED UNDER THE PROV ISIONS OF SECTION 153A. IT MAY BE NOTED FROM THE LIST OF P ERSONS IN APPELLANTS REPLY THAT THE APPELLANT HAD CLAIMED TO HAVE GIVEN ADVANCES TO 42 PERSONS IN EARLIER YEARS IN TH E RANGE OF RS.10,000/- TO RS.19,500/- I.E. MOSTLY LESS THAN RS.20,000/- WHICH WAS THE PERMISSIBLE LIMIT FOR GIV ING THE LOANS OR ADVANCES OTHER THAN BY CHEQUE. ALL THE ADV ANCES WERE CLAIMED TO BE GIVEN BY CASH. IT MAY BE PERTINE NT TO NOTE HERE THAT DURING THE COURSE OF SEARCH AND SEIZ URE BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 11 OPERATIONS, NO DOCUMENT WHATSOEVER WAS FOUND AT THE RESIDENCE OR OFFICE PREMISES OF THE APPELLANT TO SH OW THAT APPELLANT HAD GIVEN SUCH ADVANCES. IF A PERSON HAD GIVEN ADVANCES REGULARLY TO SUCH A LARGE NUMBER OF PERSON S I.E. 42 PERSONS, IT IS NOT BELIEVABLE THAT HE WOULD NOT MAINTAIN ANY RECORD FOR SUCH ADVANCES. IT IS ALSO UNBELIEVAB LE THAT ALL THE ADVANCES HAD BEEN CLAIMED TO BE GIVEN IN CASH T O SUCH A LARGE NUMBER OF PERSONS. THE APPELLANT IS RESIDIN G AND WORKING IN BHOPAL, BUT THE APPELLANT HAD CLAIMED TO HAVE GIVEN SOME ADVANCES TO PERSONS IN KERALA ALSO. IT I S PERTINENT TO NOTE THAT THE APPELLANT HAD NOT SHOWN ANY ADVANCES/ LOANS GIVEN TO OTHERS FROM A.Y. 2001-02, THE PERIOD COVERED U/S 153A. THE APPELLANT HAD ALSO NOT FURNISHED ANY COGENT OR UNIMPEACHABLE INDEPENDENT EVIDENCE TO PROVE THE GENUINENESS OF SUCH CLAIM OF ADVANCES GIVEN. THUS, THESE ADVANCES WERE SHOWN AS AN AFTER THOUGHT AFTER THE DATE OF SEARCH JUST TO TRY TO EXPLAIN THE SOURCES OF FUNDS UTILIZED FOR MEETING INVESTMEN T AND EXPENDITURES DURING THE PERIOD COVERED UNDER PREVIO US YEARS RELEVANT TO ASSESSMENT YEARS U/S 153A OF THE ACT. THEREFORE, THE SUBMISSION OF THE APPELLANT DOES NOT REPOSE ANY CONFIDENCE THAT THE APPELLANT HAD ACTUALLY GIVE N SUCH ADVANCES TO VARIOUS PERSONS WHICH WERE RECEIVED DUR ING THESE YEARS AND, HENCE, CONSIDERING THE FACTS AND CIRCUMSTANCES AND THE PRINCIPLE OF HUMAN PROBABILIT Y, THE BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 12 EXPLANATION OF THE APPELLANT REGARDING THESE CREDIT S IN DIFFERENT YEARS IS NOT FOUND ACCEPTABLE. IT MAY BE NOT BE OUT OF PLACE TO MENTION HERE THAT THE APPELLANTS WIFE MRS. LEENA B. JOHN HAD ALSO CLAIME D REFUND OF ADVANCE OF RS.36,000/- IN A.Y. 2005-06 AN D THE HON'BLE ITAT IN HER CASE IN APPEAL NO. I.T.(SS).A.N O.222 TO 225/IND/2012 ORDER DATED 31.10.2012 CONFIRMED THE ADDITION MADE BY THE AO OBSERVING AS UNDER :- 56. WITH RESPECT TO THE ADDITION OF RS.36,000/- IN THE ASSESSMENT YEAR 2005-06 ON ACCOUNT OF REFUND OF ADVANCES, WE FOUND THAT THE ASSESSEE COULD NOT SUBSTANTIATE HER CLAIM FOR REFUND OF THE ADVANCES MADE IN EARLIER YEARS BY PUTTING ON RECORD IN RELIA BLE EVIDENCE. FURTHERMORE, THE FINDING RECORDED BY THE ASSESSING OFFICER AND CIT (A) COULD NOT BE DISLODGE D BY THE LD. AUTHORIZED REPRESENTATIVE BY BRINGING AN Y POSITIVE MATERIAL ON RECORD. ACCORDINGLY, WE CONFIR M THE ACTION OF THE CIT (A) FOR ADDITION OF RS.36,000 /- ON ACCOUNT OF REFUND OF ADVANCES GIVEN BY THE ASSESSEE. IN VIEW OF THE ABOVE, THE ADDITIONS OF RS.40,300/-; RS.1,01,000/-; RS.67,000/-; RS.1,64,000/-; RS.164,0 00/-; RS.86,000/- AND RS.10,000/- IN A.YS.2001-02, 2002-0 3, 2003-04, 2004-05, 2005-06, 2006-07 & 2007-08 BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 13 RESPECTIVELY ARE CONFIRMED. THESE GROUNDS OF APPEAL ARE DISMISSED. 15. NOW THE ASSESSEE HAS APPROACHED THE TRIBUNAL BY WAY OF THESE APPEALS. 16. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE SIDES. THE LEARNED COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO PAGE 4 PARA 6.3 OF THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) AND SUBMITTED THAT ALL THE ADVANCES WERE GIVEN IN CASH AND THE SAME WERE RETURNED TO THE ASSESSEE IN CASH. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS SHOWN RS. 8,25,300/- AS ADVANCE RECEIVABLE IN THE OPENING BALANCE SHEET AS ON 31.3.2012 AS PER THE ASSESSEES PAPER BOOK PAGE 12. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT THE ASSESSEE RECEIV ED THIS AMOUNT BACK FROM THE RESPECTIVE DEBTORS AS PER THE CASH AN D BANK FLOW STATEMENT PLACED AT PAPER BOOK PAGES 18, 30, 35,40, 45, 50 AND 55 AND LIABILITY SIDE OF THE BALANCE SHEET HAS NOT BEE N REJECTED BY THE AUTHORITIES BELOW, THEREFORE, THE SOURCE OF INVESTM ENT HAS BEEN ACCEPTED AND AS SUCH THE CONCLUSION DRAWN BY THE CO MMISSIONER OF INCOME TAX (APPEALS) IS NOT SUSTAINABLE THAT THE AD VANCES WERE NOT BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 14 GIVEN BY THE ASSESSEE. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT THE ASSESSEE HAS FILED AFFIDAVITS OF 41 PERSONS. THUS, IT CANNOT BE PRESUMED THAT ALL THESE PERSONS ARE FA LSE OR THESE ARE JUST SELF-SERVING DOCUMENTS WITHOUT EXAMINING THEM. PLACING RELIANCE ON THE DECISION OF THE HON'BLE SUPREME COU RT IN THE CASE OF CIT VS. PARIK & CO.; 30 ITR 181(SC) THE LEARNED COU NSEL FOR THE ASSESSEE SUBMITTED THAT THE AFFIDAVITS CANNOT BE RE JECTED WITHOUT CROSS-EXAMINING THE SAME. THE LEARNED COUNSEL FOR T HE ASSESSEE ALSO CONTENDED THAT THE ASSESSEES NEGATIVE PLACE I S KERALA AND ADVANCES HAVE BEEN GIVEN TO SOME PERSONS BELONGING TO KERALA. THEREFORE, WITHOUT BRINGING ANY ADVERSE MATERIAL AG AINST THE ASSESSEE, THE POSITIVE AND SUSTAINABLE EVIDENCE AND THE MATERIAL PLACED BY THE ASSESSEE IN THE FORM OF AFFIDAVITS AN D NAMES AND ADDRESS OF THE DEBTORS CANNOT BE DENIED. 17. REPLYING TO THE ABOVE, THE LEARNED DR SUBMITTED THAT IN THE CASE OF THE ASSESSEES WIFE SMT. LEENA B. JOHN, WHO ALSO CLAIMED REFUND OF ADVANCE OF RS. 36,000/- IN THE ASSESSMENT YEAR 2005-06, THE APPEAL OF MRS. LEENA B. JOHN HAS BEEN DISMISSED BY THE TRIBUNAL VIDE ORDER DATED 31.10.2012 CONFIRMING THE ADDITION. BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 15 THEREFORE, IN THE PRESENT CASE HAVING IDENTICAL FAC TS, THE SAME ADDITION CANNOT BE HELD AS UNSUSTAINABLE. 18. PLACING REJOINDER TO THE ABOVE SUBMISSIONS, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THE WIFE S CASE NON PROOF OF REFUND OF ADVANCE WAS GIVEN WHEREAS IN THE PRESE NT CASE, THE ASSESSEE HAS FILED AFFIDAVITS OF RESPECTIVE DEBTORS WHO REFUNDED THE AMOUNT OF ADVANCE. THEREFORE, THE CONCLUSION DRAWN BY THE TRIBUNAL IN THE CASE OF THE ASSESSEES WIFE CANNOT BE APPLIED BLINDLY TO THE ASSESSEES CASE. 19. ON CAREFUL CONSIDERATION OF THE ABOVE RIVAL SUB MISSIONS, WE ARE OF THE VIEW THAT THE ASSESSEE HAS CLAIMED TO HA VE MADE ADVANCES IN CASH AND THE SAME AMOUNTS WERE RECEIVED BACK IN CASH DURING VARIOUS ASSESSMENT YEARS SPREAD OVER 7 FINAN CIAL YEARS. ADMITTEDLY, BALANCE SHEET AND CASH FLOW STATEMENT H AVE BEEN PREPARED BY THE ASSESSEE AFTER SEARCH AND SEIZURE O PERATION AND THE SAME WAS SUBMITTED TO THE ASSESSING OFFICER ALONG W ITH RETURN OF INCOME FILED IN RESPONSE TO NOTICE U/S 153A OF THE ACT. IN OUR CONSIDERED VIEW, IF THE ASSESSEE HAD GIVEN ADVANCES REGULARLY TO 45 PERSONS THEN IT IS NOT BELIEVABLE THAT A MAN OF ORD INARY PRUDENCE BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 16 LIKE THE ASSESSEE WOULD NOT MAINTAIN ANY RECORD FOR SUCH ADVANCES. THE ASSESSEE IS RESIDING IN BHOPAL AND HE HAD CLAIM ED TO HAVE GIVEN SOME ADVANCES TO PERSONS OF KERALA THAT TOO I N CASH WHICH IS ALSO NOT BELIEVABLE. 20. EXCEPT AFFIDAVITS, THE ASSESSEE HAS NOT FURNIS HED ANY COGENT OR ACCEPTABLE EVIDENCE TO PROVE THE GENUINEN ESS OF SUCH CLAIM OF CASH ADVANCED TO 42 PERSONS. WE ARE, THERE FORE, IN AGREEMENT WITH THE CONCLUSION DRAWN BY THE AUTHORIT IES BELOW THAT THESE ADVANCES WERE SHOWN AS AN AFTER-THOUGHT AFTER THE DATE OF SEARCH JUST AS AN ENDEAVOUR TO EXPLAIN THE SOURCE O F FUNDS UTILISED FOR MEETING INVESTMENT AND EXPENDITURE- DURING THE PERIOD COVERED UNDER THE PREVIOUS YEARS RELEVANT TO THE ASSESSMENT YEARS WITHIN THE AMBIT OF BLOCK OF ASSESSMENT YEARS U/S 153A OF THE ACT. WE CANNOT IGNORE THAT UNDER IDENTICAL FACTS AND CIRCUM STANCES THE TRIBUNAL HAS UPHELD THE ADDITION PERTAINING TO REFU ND OF ADVANCE OF RS. 36,000/- IN THE CASE OF THE ASSESSEES WIFE MRS . LEENA B. JOHN BY ORDER DATED 31.10.2012. IN THIS CASE THE TRIBUNA L IN PARA 56, AS REPRODUCED HEREINABOVE, HELD THAT THE ASSESSEE COUL D NOT SUBSTANTIATE HER CLAIM FOR REFUND OF ADVANCE MADE I N EARLIER YEARS BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 17 BY BRINGING ON RECORD RELIABLE EVIDENCE AND THE FIN DINGS RECORDED BY THE AUTHORITIES BELOW COULD NOT BE DISLODGED BY THE LEARNED COUNSEL FOR THE ASSESSEE BY BRINGING ANY POSITIVE MATERIAL ON RECORD IN FAVOUR OF THE ASSESSEE. AS WE HAVE ALREADY HELD TH AT AFFIDAVITS FILED BY THE ASSESSEE ARE SELF-SERVING DOCUMENTS AND THES E ARE JUST STATING THAT THEY HAVE RECEIVED ADVANCES FROM THE A SSESSEE AND THERE IS NO OTHER SUPPORTING EVIDENCE TO THESE FACT S. SINCE THESE DEPONENTS ARE SUPPORTING THE STAND OF THE ASSESSEE THEN THERE WAS NO FURTHER NEED OF ALLOWING CROSS-EXAMINATION FOR T HE ASSESSEE ON THESE DEPONENTS. 21. ON THE TOTALITY OF FACTS AND CIRCUMSTANCES OF T HE CASE, WE ARE OF THE VIEW THAT THE FACTS AND CIRCUMSTANCES OF THE ASSESSEES CASE ARE ALMOST IDENTICAL WITH THE CASE OF HIS WIFE MRS. LEENA B. JOHN WHEREIN UNDER SIMILAR FACTS AND CIRCUMSTANCES ADDIT ION PERTAINING TO REFUND OF ADVANCE HAS BEEN CONFIRMED AND AFTER C ONSIDERING THE RIVAL SUBMISSIONS, WE ARE UNABLE TO SEE ANY REASON TO TAKE A DIFFERENT VIEW. WE, THEREFORE, UPHOLD THE ADDITION MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE COMMISSIONER OF INCOME BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 18 TAX (APPEALS) ON THIS COUNT. CONSEQUENTLY, GROUND N O. 3 OF THE ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 2001-02 I S DISMISSED. 22. BY WAY OF GROUND NO. 1 IN THE ASSESSMENT YEARS 2001-02 AND GROUND NO. 3 IN THE ASSESSMENT YEAR 2006-07 THE ASS ESSEE HAS CHALLENGED THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) ON THE GROUNDS THAT HE WAS NOT JUSTIFIED IN CONFIRM ING THE ADD MADE BY THE ASSESSING OFFICER ON ACCOUNT OF GIFTS F ROM RELATIVES AND FRIENDS. 23. THE FACTS OF THE CASE ARE THAT THE ASSESSING OF FICER NOTED THAT THE ASSESSEE-APPELLANT HAD SHOWN RECEIPT OF GIFTS F ROM FRIENDS AND RELATIVES AT MELVINS HOLY COMMUNION OF RS.1,10,000 /- IN A.Y.2001- 02 AND GIFTS OF RS.82,000/- IN A.Y.2006-07. THE ASS ESSING OFFICER ASKED THE APPELLANT TO SUBSTANTIATE THE CLAIM OF SU CH GIFTS RECEIVED ON VARIOUS OCCASIONS. IN RESPONSE, THE ASSESSEE FU RNISHED A LIST OF PERSONS FROM WHOM GIFTS WERE CLAIMED TO BE RECEIVED . THE ASSESSING OFFICER NOTED THAT THE LIST SIMPLY CONTAINS NAME AN D NO FURTHER DETAILS SUCH AS COMPLETE ADDRESS OF THE PERSON, REL ATION, OCCASION, EXPENDITURE INCURRED FOR SUCH OCCASION ETC. WERE FU RNISHED BY THE APPELLANT. THE ASSESSING OFFICER OBSERVED THAT THE APPELLANT HAD BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 19 PURPOSELY PREPARED CASH FLOW STATEMENT TO JUSTIFY U NEXPLAINED EXPENDITURE AND BANK DEPOSITS. THE ASSESSING OFFICE R FURTHER NOTICED FROM THE CASH FLOW STATEMENT SUBMITTED BY A PPELLANT FOR A.YS. 2001-02 TO 2007-08 THAT HE PLANNED TO SHOW AV AILABILITY OF CASH IN ADDITION TO INCOME SHOWN IN THE A.YS. 2001- 02 TO 2007-08 TO EXPLAIN THE SOURCES FOR ABOVE INVESTMENT IN THE LAND AND CASH OUT FLOW WHICH WAS AN AFTERTHOUGHT. FURTHER, THE AP PELLANT FAILED TO PROVIDE ANY DOCUMENTARY EVIDENCE AND ALSO THAT THER E WAS NO SUCH DOCUMENT OR LIST FOUND DURING THE COURSE OF SEARCH. THE ASSESSING OFFICER CONCLUDED THAT THE APPELLANT FAILED TO PROV E THE GENUINENESS OF GIFTS. THEREFORE, THE AO MADE ADDITION OF RS.1,1 0,000/- IN A.Y.2001-02 AND OF RS.82,000/- IN A.Y. 2006-07. 24. ON APPEAL, THE COMMISSIONER OF INCOME TAX (APPE ALS) CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICE R WITH THE FOLLOWING OBSERVATIONS :- 7.4 I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF T HE APPELLANT AND FACTS OF THE CASE. IT MAY BE NOTED THAT THE APPELLANT HAD SHOWN RECEIPT O N ACCOUNT OF GIFTS OF RS.1,10,000/- IN A.Y. 2001-02 AND OF RS.82,000/- IN A.Y. 2006-07. IT MAY BE PERTINENT TO NOTE THAT THE APPELLANT HAD CLAIMED RECEIPT OF GIFTS FROM LARGE N UMBER OF PERSONS BUT DURING THE COURSE OF SEARCH, NO SUCH LIST OF PERSONS FROM WHO M GIFTS WERE CLAIMED TO BE RECEIVED WAS FOUND AT THE RESIDENCE OR OFFICE PREMISES OF TH E APPELLANT. THUS, IT IS CLEAR THAT THE BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 20 LIST WAS SUBSEQUENTLY PREPARED BY THE APPELLANT JUS T TO TRY TO EXPLAIN THE SOURCES OF FUNDS UTILIZED FOR VARIOUS INVESTMENTS AND EXPENDIT URES INCURRED. HERE IT MAY NOT BE OUT OF PLACE TO MENTION THAT THE APPELLANTS WIFE HAD A LSO SHOWN RECEIPT OF GIFTS IN HER CASE IN DIFFERENT ASSESSMENT YEARS AND, THE HON'BLE ITAT AFTER CONSIDERING THE FACTS IN THE CASE OF MRS. LEENA B. JOHN VS. ACIT -1(1), BHOPAL I N APPEAL NO.IT(SS) A.NO.3492355/IND/2012 FOR A.YS.2001-02 TO 2007-08 C ONSIDERED REASONABLE GIFT FOR THE FAMILY ON VARIOUS OCCASIONS AT RS.6,000/- PER YEAR. THE RELEVANT OBSERVATIONS OF THE HON'BLE ITAT ARE AS UNDER : 54 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND F OUND FROM RECORD THAT THE ASSESSEE HAS FURNISHED LIST OF DONORS DURING THE CO URSE OF ASSESSMENT PROCEEDINGS. THE ASSESSEE WAS ENJOYING SOUND FINANCIAL AND SOCIA L STATUS AND BELONGING TO A BUSINESS GROUP. SHE MARRIED AND HAVING TWO CHILDREN AND LIVING IN B HOPAL, SINCE LAST THREE DECADES. SHE WAS CLAIMING TO RECEIVE GIF TS ON VARIOUS FUNCTIONS, FESTIVE OCCASIONS ETC. SMALL GIFTS TO LADY FROM HER INLAWS SIDE CANNOT BE OUTRIGHTLY DECLINED, WHICH IS A NORMAL FEATURE. ACCORDINGLY, W E DIRECT THE ASSESSING OFFICER TO ALLOW THE GIFTS TO THE EXTENT OF RS.6,000/- PER ANN UM FROM ASSESSMENT YEAR 2001- 02 TO 2006-07. IN THE ASSESSMENT YEAR 2007-08, THE ASSESSEE HAD SHOWN GIFT OF RS.6,000/-, WHICH APPEARS TO BE REASONABLE. THEREFO RE, THE ASSESSING OFFICER IS DIRECTED TO DELETE THE ADDITION MADE ON THIS ACCOUN T. WE DIRECT ACCORDINGLY. FROM THE ABOVE, IT MAY BE NOTED THAT THE BENEFIT OF REASONABLE GIFTS RECEIVED BY THE FAMILY OF THE APPELLANT HAD ALREADY BEEN ALLOWED BY THE HON'BLE ITAT IN CASE OF APPELLANTS WIFE, MRS. LEENA B. JOHN AND, THEREFORE , NO FURTHER BENEFIT WAS REQUIRED TO BE GIVEN IN THE CASE OF THE APPELLANT. HENCE, THE S OURCE OF FUNDS TO THE EXTENT OF RS.1,10,000/- IN A.Y. 2001-02 AND OF RS.82,000/- IN A.Y.2006-07 CLAIMED TO BE RECEIVED AS GIFTS BY THE APPELLANT REMAINED UNEXPLAINED. SIN CE, THE APPELLANT FAILED TO SATISFACTORILY EXPLAIN THE SOURCE OF FUNDS OF RS.1 ,10,000/- IN A.Y. 2001-02 AND OF RS.82,000/- IN A.Y. 2006-07, THE ADDITIONS OF RS.1, 10,000/- IN A.Y. 2001-02 AND OF RS.82,000/- IN A.Y.2006-07 MADE BY THE ASSESSING O FFICER ARE CONFIRMED. 25. NOW THE ASSESSEE IS IN APPEAL BEFORE US. BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 21 26. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE SIDES. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT HOL Y CEREMONIES ARE DONE AT VARIOUS OCCASIONS IN CHRISTIAN COMMUNIT Y WHICH IS ALSO KNOWN AS LORD SUPPER, WHICH REPRESENTS THE GREATEST EXPRESSION OF GODS LOVE FOR HIS PEOPLE. IN THIS CEREMONY PEOPLE ARE INVITED WHO GIVE GIFT TO THE CHILD AND THIS CEREMONY WAS DONE O N 14.1.2001 AND GROSS GIFTS OF RS. 1,75,233/- WERE RECEIVED FROM FR IENDS AND RELATIVES AND THE ASSESSEE INCURRED EXPENSES OF RS. 65,000/- ON CATERING, ETC. THEREAFTER, GIFT OF RS. 1,10,000/- ( NET OF EXPENSES) WAS RECEIVED FROM FRIENDS AND RELATIVES OF THE ASSESSEE . THE LEARNED COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE GIFTS OF RS. 1,10,000/- IS A NORMAL AMOUNT LOOKING TO THE STATUS OF THE ASS ESSEE WHICH CANNOT BE DOUBTED AS THE GIFTS WERE RECEIVED FROM 2 44 PERSONS IN CASH IN THE RANGE OF RS. 100/- TO RS. 3,000/- AND L IST OF PERSONS WHO GAVE GIFTS HAS BEEN PLACED ON RECORD IN THE ASS ESSEES PAPER BOOK PAGES 20 TO 26. THE LEARNED COUNSEL FOR THE AS SESSEE ALSO SUBMITTED THAT THE ADDITION MADE BY THE ASSESSING O FFICER AND SUSTAINED BY THE COMMISSIONER OF INCOME TAX (APPEAL S) IS NOT SUSTAINABLE AND THUS THE SAME MAY KINDLY BE DELETED . THE LEARNED COUNSEL FOR THE ASSESSEE EXPLAINING THE FACTS PERTA INING TO THE GIFTS BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 22 OF RS. 82,000/- FOR THE ASSESSMENT YEAR 2006-07 FRO M RELATIVES SUBMITTED THAT IN SIMILAR MANNER THE ASSESSEE RECEI VED GIFT FROM FRIENDS AND RELATIVES AT MELVINS HOLY COMMUNION, T HEREFORE, THE ADDITION MADE BY THE ASSESSING OFFICER IN THE ASSES SMENT YEAR 2006-07 AND CONFIRMED BY THE COMMISSIONER OF INCOME TAX (APPEALS) CANNOT BE HELD AS SUSTAINABLE. 27. REPLYING TO THE ABOVE, THE LEARNED DR SUBMITTED THAT THE ASSESSEES WIFE SMT. LEENA JOHN WAS ALLOWED GIFT OF RS. 6,000/- PER ANNUM FROM THE ASSESSMENT YEAR 2001-02 TO 2006-07 A ND CONSEQUENTLY SHE WAS ALSO ALLOWED GIFT OF RS. 6,000 /- FOR THE ASSESSMENT YEAR 2007-08, THEREFORE, THE ASSESSEE CA NNOT BE GIVEN ANY FURTHER RELIEF ON THIS COUNT. HE ALSO DREW OUR ATTENTION TO RELEVANT PART OF THE ASSESSMENT ORDERS FOR BOTH THE YEARS AND SUBMITTED THAT ON BEING ASKED BY THE ASSESSING OFFI CER, THE ASSESSEE COULD NOT SUBMIT ANY PLAUSIBLE EXPLANATION OR DOCUMENTARY PROOF REGARDING THE DONORS INCLUDING TH EIR NAMES AND ADDRESSES, RELATION, WHETHER INVITATION WAS GIVEN, OCCASION AND PAYMENT OF EXPENDITURE MADE BY THE ASSESSEE FOR ORG ANISING THE EVENT OF HOLY COMMUNION. THEREFORE, THE AUTHORITIES BELOW WERE BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 23 RIGHT IN MAKING THE ADDITION. THE LEARNED DR ALSO P OINTED OUT THAT THE ASSESSEE HAS FAILED TO PROVIDE ANY DOCUMENTARY EVIDENCE THAT THE SMALL GIFTS WERE RECEIVED FROM VARIOUS PERSONS AND THE LIST OF PERSONS WAS PREPARED AFTER SEARCH AND DURING THE CO URSE OF SEARCH AND SEIZURE OPERATION, NO SUCH LIST OR DOCUMENT WAS FOUND WITH THE ASSESSEE. HE ALSO POINTED OUT THAT NO GIFT WAS RECE IVED THROUGH BANKING CHANNEL OR THROUGH CHEQUE AND THE ASSESSEE HAS FAILED TO PROVIDE ANY INFORMATION REGARDING INCURRING OF EXPE NDITURE ON THE OCCASION. THEREFORE, THE STORY PREPARED BY THE ASSE SSEE AFTER SEARCH AND SEIZURE OPERATION CANNOT BE HELD AS SUSTAINABLE AND ACCEPTABLE. 28. REPLYING TO THE ABOVE, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AUTHORITIES BELOW HAVE NOT DOUBT ED THE FACT THAT THE ASSESSEE ORGANISED CEREMONY OF HOLI COMMUNION D URING THE ASSESSMENT YEARS 2001-02 AND 2006-07 AND THE ASSESS EE AND HIS WIFE ARE RESIDING AT BHOPAL HAVING TWO CHILDREN SIN CE LAST THREE DECADES, THEREFORE, THE FACT OF CLAIMING TO HAVE RE CEIVED THE GIFTS AT VARIOUS FUNCTIONS, FESTIVE OCCASIONS AND SMALL GIFT S TO HIS WIFE FROM BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 24 HER IN-LAWS CANNOT BE OUT-RIGHTLY DECLINED WHICH IS A NORMAL FEATURE. 29. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE A RE OF THE VIEW THAT THE MAIN CONTENTION OF THE AUTHORITIES BELOW F OR DENYING THE CLAIM OF GIFT IN BOTH THE YEARS IS THAT THE ASSESSE E PREPARED LIST OF DONORS AFTER SEARCH AND SEIZURE OPERATION AND DURIN G ASSESSMENT PROCEEDINGS THE ASSESSEE DID NOT FURNISH LIST OF DO NORS, THEIR DETAILS AND PROOF OF INCURRING OF EXPENDITURE ON THE CEREMO NIES. 30. ON CAREFUL AND LOGICAL ANALYSIS OF THE FACTS AN D CIRCUMSTANCES OF THE CASE, WHEN WE ANALYSE THE FINDINGS OF THE AU THORITIES BELOW THEN WE OBSERVE THAT THE MAIN ALLEGATION OF THE ASS ESSING OFFICER AND THE COMMISSIONER OF INCOME TAX (APPEALS) IS THA T LIST OF DONORS WAS PREPARED SUBSEQUENTLY JUST TO EXPLAIN THE SOURC E OF FUNDS UTILISED FOR VARIOUS EXPENDITURE INCURRED. THE COMM ISSIONER OF INCOME TAX (APPEALS) ALSO TOOK AID OF THE CONCLUSIO N OF THE TRIBUNAL ORDER IN THE ASSESSEES CASE WHEREIN GIFT OF RS. 6, 000/- PER YEAR HAS BEEN ALLOWED TO HER FROM 2001-02 TO 2007-08. IN THI S REGARD, WE ARE OF THE CONSIDERED VIEW THAT RECEIVING THE GIFTS AND CASH BY LADIES AND CHILDREN ON THE FESTIVALS, WHICH COME EVERY YEA R, IS A VERY USUAL BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 25 THING. THEREFORE, THE ALLOWANCE GIVEN BY THE TRIBUN AL TO THE ASSESSEES WIFE CANNOT BE TAKEN AS BASIS OF DENIAL TO THE ASSESSEE FOR THE ASSESSMENT YEARS 2001-02 AND 2006-07 AS THE ASSESSEE IS NOT CLAIMING EVERY YEAR GIFT BUT HE IS CLAIMING HAV ING RECEIVED GIFTS FROM RELATIVES AND FRIENDS ON THE OCCASION OF HOLI COMMUNITION WHEREIN RELATIVES AND FRIENDS ARE INVITED WHO GIVE GIFTS TO THE CHILD. THE AUTHORITIES BELOW HAVE NOT DOUBTED ORGANISATION OF HOLI COMMUNION BUT THE CLAIM OF THE ASSESSEE HAVING RECE IVED GIFT HAS BEEN DISMISSED IN THE ABSENCE OF ANY DOCUMENTARY PR OOF REGARDING RECEIPT OF GIFT AND INCURRING OF EXPENSES. AT THE S AME TIME, WE OBSERVE THAT EXCEPT LIST OF DONORS, THE ASSESSEE HA S NO OTHER DOCUMENTARY EVIDENCE OR PROOF REGARDING THE DETAILS OF DONORS AND EXPENSES INCURRED. BE THAT AS IT MAY, IN OUR CONSID ERED OPINION, WHEN THE ORGANISATION OF CEREMONY OF HOLY COMMUNION , WHEREIN FRIENDS AND RELATIVES ARE INVITED, WHO GIVE GIFTS T O THE CHILD, IS DONE ON 14.1.2001 AND SUBSEQUENTLY DURING THE ASSESSMENT YEAR 2006- 07 THEN RECEIVING THE GIFTS CANNOT BE DISMISSED IN TOTO. THE ASSESSING OFFICER DISMISSED THE CONTENTION OF THE A SSESSEE WITHOUT ANY FURTHER VERIFICATION FROM THE RESPECTIVE GIFTER S AND IN THIS SITUATION, THE CLAIM OF THE ASSESSEE CANNOT BE HELD AS PURELY BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 26 FABRICATED AND AFTER-THOUGHT. IN OUR CONSIDERED OPI NION, THE ASSESSEE DESERVES TO BE ALLOWED SOURCE OF FUNDS ON THIS COUNT AND THE ASSESSING OFFICER IS DIRECTED TO ALLOW 50% CLAI M OF THE ASSESSEE FOR THE ASSESSMENT YEARS 2001-02 AND 2006-07 AS CLA IMED TO HAVE RECEIVED THE GIFT. ACCORDINGLY, GROUND NO. 4 IN THE ASSESSMENT YEAR 2001-02 AND GROUND NO. 3 IN THE ASSESSMENT YEAR 200 6-07 IS PARTLY ALLOWED. 31. BY WAY OF GROUND NO. 3 IN THE ASSESSMENT YEAR 2 005-06, GROUND NO. 4 IN THE ASSESSMENT YEAR 2006-07, GROUND NO. 3 IN THE ASSESSMENT YEAR 2007-08 AND GROUND NO. 2 IN THE ASS ESSMENT YEAR 2008-09 THE ASSESSEE HAS CHALLENGED THE CONFIRMATIO N OF THE ADDITION MADE BY THE ASSESSING OFFICER ON THE BASIS OF SEIZED DOCUMENT NO. BS 1/3 PAGE 100. 32. BRIEFLY STATED, THE AO NOTED THAT DURING THE CO URSE OF SEARCH AND SEIZURE OPERATION, CERTAIN PAPERS WERE SEIZED F ROM THE OFFICE OF THE APPELLANT IN THE PREMISES OF GEI HAMON INDUSTRI ES. PAGE NO. 100 OF BS-1/3 SEIZED DOCUMENTS CONTAINS ENTRY OF TH E FOLLOWING TRANSACTION AS UNDER :- BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 27 MR. JOHN 5,00,000 (FIVE LAKS) CASH 26.06.04 @ 24 % WHEN THE ASSESSING OFFICER ASKED THE ASSESSEE-APPEL LANT TO EXPLAIN THE ABOVE TRANSACTION IN RESPECT OF ENTRY OF RS.5,0 0,000/-, IT WAS SUBMITTED THAT BESIDES THE ASSESSEE-APPELLANT THERE WAS ALSO ONE MR. JOHN ANTONY WHO IS AN EMPLOYEE OF THE COMPANY I N WHICH THE APPELLANT WAS WORKING. MR. JOHN ANTHONY WANTED TO P URCHASE A RESIDENTIAL PROPERTY FOR WHICH HE APPROACHED THE AP PELLANT FOR ARRANGING A LOAN OF RS.5,00,000/- IN CASH. THE ASSE SSEE-APPELLANT CONDUCTED INQUIRY FOR THIS AMOUNT DURING THE MEETIN G BUT THE EMPLOYER HAD NO POLICY OF EXTENDING SUCH LOANS AND THE FACILITY WAS DENIED. FURTHER THE APPELLANT INQUIRED FROM SOME OU TSIDE PARTY FOR THE LOAN AND NOTED IN THE DIARY INCLUDING THE RATE OF INTEREST AT 24 %. HOWEVER, SINCE NO ONE WAS READY TO GIVE LOAN IN CASH, THIS LOAN WAS NOT TAKEN BY MR. JOHN ANTHONY. THUS, THIS DOCUM ENT IS NOT RELATED TO THE APPELLANT AND THE SUGGESTION THAT TH E AMOUNT WAS ADVANCED BY THE APPELLANT HAD NO GROUND. HOWEVER, THE ABOVE CONTENTION OF THE APPELLANT WAS NOT ACCEPTED BY THE ASSESSING OFFICER DUE TO FOLLOWING REASONS :- (I) THIS IS THE HAND WRITTEN DOCUMENT OF SHRI BERNARD J OHN. BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 28 (II) BS-1/3 IS A LOSSE PAPER ANNEXURE CONTAINING PAGES 1 TO 100. THIS CONTAINS VARIOUS HANDWRITTEN NOTINGS, BILLS RAISED BY BE-ESSAR ENTERPRISES AGAINST M/S GEI HAMON INDUSTRIES LTD. AND OTHER PAR TIES AND OTHER PAPERS RELATED TO M/S BE-ESSAR ENTERPRISES WHERE TH E WIFE OF THE ASSESSEE MRS. LEENA B. JOHN IS PROPRIETOR. (III) DURING THE COURSE OF SEARCH, IT IS EXAMINED THAT TH E ALL DOCUMENTS RELATED TO BE-ESSAR ENTERPRISES IS BASICALLY MAINTA INED BY ASSESSEE. (IV) THE ASSESSEE HAS FAILED TO PROVIDE ANY SUPPORTING E VIDENCE THAT MR. JOHN ANTHONY WANTED TO PURCHASE A RESIDENTIAL PROPERTY F OR WHICH HE APPROACHED TO THE ASSESSEE FOR ARRANGING LOAN OF RS .5,00,000/- IN CASH. (V) THE FOOTNOTE OF THE ABOVE ENTRY IS CLEARLY INDICATE THAT THE ASSESSEE HAS GIVEN LOAN BY CASH AND THE INTEREST WAS CHARGED @ 2 4 % P.A. (VI) THIS IS FURTHER CORROBORATED BY THE FACT THAT DURIN G THE BLOCK PERIOD, SHRI JOHN AND SMT. LEENA JOHN HAS MADE A NUMBER OF CASH DEPOSITS IN THEIR BANK ACCOUNTS AND A NUMBER OF UNEXPLAINED CASH EXPE NSES/ INVESTMENT S. IN VIEW OF THE ABOVE OBSERVATIONS, AN ADDITION OF R S.5,00,000/- WAS MADE IN THE HANDS OF THE APPELLANT AND AS THE APPEL LANT HAD EARNED INTEREST @ 24%, THE ASSESSING OFFICER MADE FURTHER ADDITION INTEREST @ 24 % OF RS.1,20,000/- TOTALING TO RS.6,20,000/- I N A.Y. 2005-06 AND ADDITIONS ON ACCOUNT OF INTEREST OF RS.1,20,000 /- EACH WAS MADE IN A.YS. 2006-07, 2007-08 & 2008-09 TO TOTAL I NCOME OF THE ASSESSEE- APPELLANT. BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 29 33. ON APPEAL, THE COMMISSIONER OF INCOME TAX (APPE ALS) AFTER CONSIDERING THE ISSUE IN THE LIGHT OF THE SUBMISSIO NS OF THE ASSESSEE AND BY FOLLOWING THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF SURENDRA M. KHANDHAR VS. ACIT (2010) 321 ITR 254 (BOM.) AS ALSO THE JUDGMENT OF THE HON'BLE GUJRAT H IGH COURT IN THE CASE OF HIREN VASANTLAL SHAH VS. ACIT; (2012) 19 TA XMANN.COM 241(GUJ.) HELD AS UNDER :- 11.4 I HAVE CAREFULLY CONSIDERED THE SUBMISSI ON OF THE APPELLANT AND FACTS OF THE CASE. IT IS AN ADMITTED FACT THAT PAGE NO. 100 OF BS- 1/3 WAS SEIZED FROM THE POSSESSION OF THE APPELLANT IN HIS OFFICE AND THE SAME WAS IN THE HANDWRITING OF THE APPELLANT. T HE DOCUMENT CLEARLY STATES THAT THE APPELLANT HAS GIVEN A LOAN OF RS.5,00,000/- IN CASH TO MR. JOHN ON 26.06.2004 @ 24 % INTEREST WHIC H IS EVIDENT FROM THE FOLLOWING NARRATIONS ON THIS PAGE : MR. JOHN 5,00,000 (FIVE LAKS) CASH 26.06.04 @ 24 % SECTION 292C OF THE IT ACT CLEARLY PROVIDES THAT WH ERE ANY DOCUMENT IS FOUND IN THE POSSESSION OR CONTROL OF ANY PERSON IN THE COURSE OF SEARCH U/S 132, IT MAY BE PRESUMED THAT THE CONTENT S OF SUCH DOCUMENT ARE TRUE. THEREFORE, THE CONTENTS NOTED ON THE ABOVE DOCUMENT IN THE HANDWRITING OF THE APPELLANT FOUND AND SEIZED FROM THE POSSESSION OF THE APPELLANT ARE TO BE CONSIDERE D AS TRUE. THE BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 30 APPELLANT FAILED TO REBUT THE SAME WITH ANY COGENT OR UNIMPEACHABLE EVIDENCE. THEREFORE, SINCE THE APPELL ANT FAILED TO PROVE SATISFACTORILY THE SOURCE OF AMOUNT OF RS.5,0 0,000/- GIVEN AS LOAN TO MR. JOHN ON 26.06.2004, THE AO WAS JUSTIFIED IN MAKING ADDITION OF RS.5,00,000/- AS WELL AS ADDITION ON AC COUNT OF INTEREST INCOME EARNED ON THIS LOAN @ 24 % DURING A.Y. 2005- 06 AND SUBSEQUENT ASSESSMENT YEARS AT RS.1,20,000/- PER AN NUM. IT MAY BE RELEVANT TO REFER SOME OF THE DECISIONS ON THIS ISSUE. 11.5 THE HON'BLE BOMBAY HIGH COURT HAD AN OCCASION TO CONSIDER A SIMILAR ISSUE IN THE CASE OF SURENDRA M. KHANDHAR V. ASSISTANT COMMISSIONER OF INCOME-TAX[2010] 321 ITR 0254 (BOM. ) WHEREIN IN THE COURSE OF A SEARCH OF THE PREMISES OF THE ASSES SEE A DOCUMENT WAS SEIZED WHICH SHOWED THAT THE ASSESSEE HAD ADVAN CED AN AMOUNT OF TWENTY LAKHS OF RUPEES. THE ASSESSING OFF ICER BASED ON THE SEIZED DOCUMENT MADE AN ADDITION OF RS.20 LAKHS IN THE INCOME OF THE ASSESSEE UNDER SECTION 69. THIS WAS UPHELD B Y THE TRIBUNAL. ON APPEAL, THE HON'BLE HIGH COURT HELD AS UNDER (HEAD NOTE): HELD, DISMISSING THE APPEAL, THAT THERE WAS A PRE SUMPTION THAT THE CONTENTS OF THE DOCUMENT WERE TRUE, AS THE DOCUMENT WAS SEIZED FROM THE PREMISES IN THE CONTROL OF THE ASSESSEE AND THE DOCUMENT BELONGED TO THE ASSESSEE. A READING OF THE DOCUMENT WOULD MAKE IT CLEAR THAT THE DOCUMENT IN F ACT WAS FOR RETURN OF MONEY ALREADY ADVANCED. THE PRESUMPTION O UGHT TO HAVE BEEN REBUTTED BY THE ASSESSEE. THE ASSESSEE AT THE FIRST AVAILABLE OPPORTUNITY DID NOT DENY THE EXISTENCE OF THE DOCUMENT NOR DID THE ASSESSEE AT ANY SUBSEQUENT STA GE OF APPEAL OR BEFORE THE COURT DENY THE DOCUMENT. THE O NLY BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 31 CONTENTION RAISED WAS THAT THE TRANSACTION WAS NOT GIVEN EFFECT TO. THERE WAS NO VIOLATION OF THE PRINCIPLES OF NAT URAL JUSTICE AND FAIR PLAY. THE ADDITION WAS JUSTIFIED. 11.6 SIMILAR VIEW WAS EXPRESSED BY THE HON'BLE GUJRA T HIGH COURT IN THE CASE OF HIREN VASANTLAL SHAH V. ASSISTANT COMMISSIONER OF INCOME-TAX[2012] 19 TAXMANN.COM 241 (GUJ.) . THE HEAD NOTE OF THIS CASE ARE REPRODUCED AS UNDER : SECTION 292C OF THE INCOME-TAX ACT, 1961 - PRESUMPT ION AS TO ASSETS, BOOKS OF ACCOUNT, ETC. - ASSESSMENT YEAR 19 98-99 - PURSUANT TO A SEARCH AT ASSESSEE'S PREMISES, CERTAI N DOCUMENTS WERE FOUND AND ONE OF SUCH DOCUMENTS CONTAINED WORK ING OF INTEREST AT RATE OF 3 PER CENT ON TOTAL SUM OF RS. 3 LAKH - ASSESSEE WAS DIRECTED TO EXPLAIN CONTENTS OF DOCUME NT FOUND DURING COURSE OF SEARCH - ASSESSEE EXPLAINED THAT C ONTENTS OF SAID DOCUMENT WERE ROUGH WORKING AND NO LOAN WAS GI VEN OUT - ASSESSING OFFICER REJECTED ASSESSEE'S EXPLANATION A ND BROUGHT TO TAX PRINCIPAL AMOUNT OF RS. 3 LAKH AND INTEREST THE REON - COMMISSIONER (APPEALS) AND TRIBUNAL CONFIRMED ORDER OF ASSESSING OFFICER - WHETHER ON BASIS OF MATERIAL RE COVERED DURING SEARCH, LOWER AUTHORITIES HAD RIGHTLY DRAWN PRESUMPTION IN TERMS OF SECTION 292C - HELD, YES - WHETHER, THE REFORE, IMPUGNED ADDITION WAS TO BE CONFIRMED - HELD, YES [ IN FAVOUR OF REVENUE] BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 32 THEREFORE, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND LEGAL POSITION ON THE ISSUE INVOLVED, I AM OF THE C ONSIDERED OPINION THAT THE AO WAS JUSTIFIED IN MAKING AN ADDITION OF R S.5,00,000/- IN THE INCOME OF THE APPELLANT ON ACCOUNT OF UNEXPLAIN ED ADVANCE GIVEN AS WELL AS THE INTEREST EARNED THEREON. ACCOR DINGLY, THE ADDITIONS OF RS.6,20,000/-, RS.1,20,000/-, RS.1,20, 000/- & RS.1,20,000/- IN A.YS.2005-06, 2006-07, 2007-08 & 2 008-09 RESPECTIVELY ARE CONFIRMED. THUS, THESE GROUNDS OF APPEAL ARE DISMISSED. 34. NOW THE ASSESSEE IS IN APPEAL BEFORE US. 35. AFTER CAREFUL CONSIDERATION OF THE RIVAL SUBMIS SIONS OF THE PARTIES AND THE ORDERS OF THE AUTHORITIES BELOW, FO R THE SAKE OF COMPLETENESS AND BREVITY IN OUR FINDINGS, WE TAKEN GROUND NO. 3 FOR THE ASSESSMENT YEAR 2005-06. 36. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS AN EMPLOYEE OF GEI HAMON INDUSTRIES IN WHICH THE ASSESSEE WAS WORKING WITH MR. JOHN ANTHONY WHO WANT ED TO PURCHASE A RESIDENTIAL PROPERTY FOR WHICH HE APPROA CHED THE BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 33 ASSESSEE FOR ARRANGING A LOAN OF RS. 5 LACS. THE LE ARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE WAS NO POLICY IN GEI HAMON INDUSTRIES TO GIVE SUCH LOAN AND IN VIEW OF HELPING HIS COLLEAGUE, THE ASSESSEE INQUIRED FROM THE MARKET AND NOTED IN THE DIARY INCLUDING INTEREST RATE OF 24% PER ANNUM. HOWEVER, AS MR. JO HN ANTHONY WAS NOT WILLING TO PAY 24% INTEREST PER ANNUM AND H E TOOK LOAN FROM BANK. THE LEARNED COUNSEL FOR THE ASSESSEE POI NTED OUT THAT THERE IS NO DOCUMENT TO PROVE THAT THE ASSESSEE GAV E LOAN FROM SHRI JOHN ANTHONY AS SHRI JOHN ANTHONY HAS DENIED SUCH T RANSACTION WITH THE ASSESSEE IN HIS AFFIDAVIT, WHICH WAS FILED BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) ALONG WITH APP LICATION UNDER RULE 46A. THE LEARNED COUNSEL FOR THE ASSESSEE FURT HER SUBMITTED THAT ON THE BASIS OF ALLEGATION OF LOAN TO MR. JOHN ANTHONY, THE ASSESSING OFFICER MADE ADDITION OF RS. 1,20,000/- O N ACCOUNT OF INTEREST IN ALL THE FOUR YEARS WHICH IS ALSO NOT SU STAINABLE AND, THEREFORE, THE ADDITION MADE BY THE ASSESSING OFFIC ER AND UPHELD BY THE COMMISSIONER OF INCOME TAX (APPEALS) MAY KINDLY BE DISMISSED. BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 34 37. REPLYING TO THE ABOVE, THE LEARNED DR SUPPORTED THE ACTION OF THE ASSESSING OFFICER AS WELL AS THE COMMISSIONER O F INCOME TAX (APPEALS). 38. PLACING REJOINDER TO THE ABOVE SUBMISSIONS, THE LEARNED COUNSEL FOR THE ASSESSEE PLACING INTO SERVICE RATIO OF THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF D.K. GU PTA; 308 ITR 230 (DEL) SUBMITTED THAT MERELY BECAUSE THERE WERE NOTHINGS OF ASSESSEE ON THE SEIZED DOCUMENTS DOES NOT MEAN THAT THE TRANSACTIONS HAD ACTUALLY TAKEN PLACE AND THE HON'B LE HIGH COURT HAS UPHELD THE CONCLUSION WHEREIN THE TRIBUNAL WAS OF THE VIEW THAT THE PROVISIONS CONTAINED IN SECTION 132(4A) OF THE SAID ACT DID NOT AUTHORISE THE ASSESSING OFFICER TO RAISE SUCH A PRESUMPTION PARTICULARLY WHEN THE ASSESSEE HAD OFFERED EXPLANAT ION ALONG WITH THE DOCUMENTS AND EVIDENCE AND HAD ALSO FURNISHED A N AFFIDAVIT TO THIS EFFECT AND THE ASSESSING OFFICER HAD ALSO MADE INQUIRIES WITH RESPECT TO SUCH REPLIES GIVEN BY THE ASSESSEE. 39. THE LEARNED COUNSEL FOR THE ASSESSEE AGAIN DRE W OUR ATTENTION TO THE ASSESSEES PAPER BOOK PAGES 69 AND 70 AND SU BMITTED THAT THE ALLEGED CREDITOR, MR. JOHN ANTHONY, IN HIS AFFI DAVIT SWORN IN ON BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 35 14.6.2013 HAS SUPPORTED THE FACTS AND SUBMISSIONS O F THE ASSESSEE THAT THE ASSESSEE HAD INQUIRED ABOUT THE AVAILABILI TY OF LOAN FOR HIM FROM PRIVATE PARTIES AND THEREAFTER HE (JOHN ANOTHN Y) TOOK LOAN OF RS. 5,80,000/- FROM STATE BANK OF INDIA, GOVINDPURA BRANCH,BHOPAL. AFFIDAVIT OF SHRI JOHN ANTHONY PLACE D AT PAGES 69- 70, COPY OF PROVISIONAL INTEREST CERTIFICATE AND ST ATEMENT OF ACCOUNT OF MR. JOHN ANTHONY PLACED AT PAGES 71-73 OF THE PA PER BOOK, WHICH WAS PLACED BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) ALONG WITH APPLICATION UNDER RULE 46A OF THE ACT, H AVE NOT BEEN PROPERLY DEALT WITH BY THE COMMISSIONER OF INCOME T AX (APPEALS). ON BEING ASKED BY THE BENCH, THE LEARNED DR FAIRLY SUBMITTED THAT AS THE COMMISSIONER OF INCOME TAX (APPEALS) HAS NOT ADJUDICATED THE ADMISSIBILITY OF ADDITIONAL EVIDENCE, HENCE, IF IT IS FOUND JUST AND PROPER THEN THE DEPARTMENT HAS NO OBJECTION, IF THE ISSUE IS RESTORED EITHER TO THE FILE OF THE COMMISSIONER OF INCOME TAX (APPEALS) OR THE ASSESSING OFFICER FOR FRESH ADJUDI CATION. 40. ON CAREFUL CONSIDERATION OF THE SUBMISSIONS OF THE PARTIES ON THE ISSUE, WE ARE OF THE VIEW THAT THE ASSESSING OF FICER MADE THE ADDITION AND THE COMMISSIONER OF INCOME TAX (APPEAL S) CONFIRMED BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 36 THE SAME ON THE BASIS OF LOOSE PAPERS PAGE NO. 100 OF BS-1/3 SEIZED FROM THE OFFICE OF GEI HAMON INDUSTRIES WHEREIN A N OTING REGARDING RS., 5 LACS WAS FOUND ON THE DATE 26.6.2004 WHICH R EADS AS FOLLOWS :- MR. JOHN 5,00,000 (FIVE LAKS) CASH 26.6.04 24% IT WAS THE CONTENTION OF THE ASSESSEE THAT MR. JOHN INQUIRED ABOUT LOAN OFRS. 5 LACS AND WHEN THE POLICY OF THE COMPAN Y WAS NOT ALLOWING SUCH LOAN, THE ASSESSEE, IN VIEW OF HELPIN G HIM, INQUIRED FROM THE PRIVATE PARTIES WHO INFORMED THE ASSESSEE THAT THE LOAN OF RS. 5 LACS CAN BE GIVEN TO MR. JOHN @ 24% PER ANNUM INTEREST AND MR. JOHN DID NOT AGREE TO THE HIGHER RATE OF INTERE ST AND THEREAFTER HE TOOK LOAN FROM STATE BANK OF INDIA, GOVINDPURA B RANCH, BHOPAL. THE ASSESSEE SUBMITTED AFFIDAVIT OF MR. JOHN ANTHON Y, COPIES OF OTHER RELEVANT DOCUMENTS SUCH AS PROVISIONAL INTERE ST CERTIFICATE AND COPIES OF BANK STATEMENT OF JOHN ANTHONY WHICH WERE NOT PROPERLY ADJUDICATED AND CONSIDERED BY THE COMMISSI ONER OF INCOME TAX (APPEALS). WE ALSO OBSERVE THAT THE APP LICATION FOR ADMISSION OF ADDITIONAL EVIDENCE UNDER RULE 46A HAS NOT BEEN ADJUDICATED UPON BY THE COMMISSIONER OF INCOME TAX (APPEALS) IN BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 37 ANY MANNER. THEREFORE, IN OUR CONSIDERED OPINION, T HE ISSUE REQUIRES RE-EXAMINATION AND VERIFICATION TO EVALUAT E THE CLAIM OF THE ASSESSEE. WE ARE OF THE CONSIDERED VIEW THAT IF THE ISSUE IS RESTORED TO THE FILE OF THE COMMISSIONER OF INCOME TAX (APPE ALS) THEN THERE WOULD BE MULTIPLICITY OF PROCEEDINGS AT THE LEVEL O F THE FIRST APPELLATE AUTHORITY AS WELL AS ASSESSING OFFICER, THEREFORE, WE RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR FRES H ADJUDICATION AFTER AFFORDING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEIN G HEARD. ACCORDINGLY, GROUND NO. 3 FOR THE ASSESSMENT YEAR 2 005-06 IS RESTORED TO THE FILE OF THE ASSESSING OFFICER. 41. SINCE THE FACTS AND CIRCUMSTANCES OF GROUND NO. 3 FOR THE ASSESSMENT YEAR 2005-06 ARE IDENTICAL WITH THE FACT S AND CIRCUMSTANCES OBTAINING IN GROUND NO. 4 FOR THE ASS ESSMENT YEAR 2006-07, GROUND NO. 3 FOR THE ASSESSMENT YEAR 2007- 08 AND GROUND NO. 2 FOR THE ASSESSMENT YEAR 2008-09, THEREFORE, T HESE GROUNDS ARE ALSO RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION AFTER PROVIDING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD, WITHOUT BEING PREJUDICED WITH THE ASSE SSMENT ORDER AND THE FIRST APPELLATE ORDER. BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 38 42. IN THE RESULT, APPEALS FOR THE ASSESSMENT YEARS 2005-06 TO 2008-09 ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES , APPEALS FOR THE ASSESSMENT YEARS 2001-02 AND 2006-07 ARE PARTLY ALL OWED ON THE ISSUE OF GIFT AND APPEALS FOR ASSESSMENT YEARS 2002 -03 TO 2004-05 ARE DISMISSED. THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON 31 ST MAY, 2017. SD/- SD/- ( ! (O.P.MEENA) (C.M. GARG) ACCOUNTANT MEMBER J UDICIAL MEMBER MAY 31 ST , 2017 DN/ BERNARD JOHN ITA NOS. 256 TO 263/IND/2013 39