Appeal details
Counselvise Citation
[2020] 111 COUNSELVISE.COM (IT) 2201 (ITAT-JODHPUR)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
7 month(s) 9 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
19-03-2020
Appeal Filed By
Assessee
Order Result
Partly Allowed
Bench Allotted
DB
Assessment Year
2012-2013
Appeal Filed On
09-08-2019
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER AND SHRI SANDEEP GOSAIN, JUDICIAL MEMBER ITA NO. 266/JODH/2019 (ASSESSMENT YEAR 2012-13) SATYA NARAYAN CHOUDHARY, 58, GOKULPURA, NORTH AYAD, UDAIPUR-313001. VS A .C.I.T., CENTRAL CIRCLE-1, UDAIPUR. (APPELLANT) (RESPONDENT) PAN NO . AAPPC 9260 P ITA NO. 392/JODH/2019 (ASSESSMENT YEAR 2017-18) SATYA NARAYAN CHOUDHARY, 58, GOKULPURA, NORTH AYAD, UDAIPUR-313001. VS A.C.I.T., CENTRAL CIRCLE-1, UDAIPUR. (APPELLANT) (RESPONDENT) PAN NO. AAPPC 9260 P ASSESSEE BY SHRI M.S. JHANWAR (CA ) REVENUE BY SHRI ABHIMANYU SINGH YADAV (JCIT-DR) DATE OF HEARING 16/03/2020 DATE OF PRONOUNCEMENT 19/03/2020 O R D E R PER: R.C. SHARMA, AM THESE ARE THE APPEALS FILED BY THE ASSESSEE AGAINST THE SEPARATE ORDERS OF THE LD.CIT(A)-2, UDAIPUR DATED 0 6/06/2019 AND 30/09/2019 FOR THE A.Y. 2012-13 & 2017-18 IN TH E MATTER OF ORDER PASSED U/S 143(3) R.W.S. 153A OF THE INCOM E-TAX ACT, 1961 [HEREINAFTER REFERRED TO AS THE ACT, FOR SHO RT]. 2 ITA 266 & 392/JODH/2019 SATYA NR. CHOUDHARY VS ACIT 2. FIRSTLY WE TAKE ITA NO. 392/JODH/2019 FOR THE A. Y. 2017- 18. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUS ED. FACTS IN BRIEF ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF REAL ESTATE, EARNING INCOME FROM BUSINESS, RENTA L INCOME AND INCOME FROM OTHER SOURCES. THERE WAS A SEARCH O PERATION AGAINST THE ASSESSEE ON 16/09/2016, WHEREIN HIS STA TEMENT WAS RECORDED BY THE SEARCH PARTY. THE POST SEARCH A SSESSMENT WAS CONDUCTED BY THE AO AND WHEREBY INCOME WAS ASSESSED AT IMPUGNED TOTAL INCOME OF RS.134,47,871/ VIDE ASSESSMENT ORDE R DATED 28.12.2018. THE ASSESSEE CHALLENGED THE IMPUGNED ASSESSMENT ORD ER DATED 28.12.2018 BEFORE THE LD. CIT(A). THE LD. CIT(A) GI VEN PARTIAL RELIEF WITH REGARD TO NATURE OF INCOME AND UPHELD THE ADDITION OF RS. 4,75,000/- BY TREATING THE SAME AS INCOME FROM UNDISCLOSED SOURCE S. AGAINST THE ORDER OF THE LD. CIT(A), THERE IS NO APPEAL FILED BY THE DEPARTMENT, HOWEVER, AGAINST THE IMPUGNED APPELLATE ORDER OF LD. CIT(A), THE ASSESSEE IS IN PRESENT APPEAL BEFORE US ON THE VARIOUS GROUNDS COV ERING FOLLOWING ISSUES/ADDITIONS: A. UPHOLDING THE ADDITION OF RS. 4,75,000/- IN RESPECT OF INCOME FROM PROPERTY TRANSACTION DULY DECLARED AND COVERED BY THE RETURNED INCOME OF RS. 118,11,569/ ALLEGEDLY CONFIR MING THE ACTION OF THE AO TREATING THE SAME AS INCOME FROM U NDISCLOSED SOURCE. 3 ITA 266 & 392/JODH/2019 SATYA NR. CHOUDHARY VS ACIT B. UPHOLDING THE IMPUGNED ADDITION OF RS. 1 CRORE IN R ESPECT OF ALLEGED UNEXPLAINED INVESTMENT IN CONSTRUCTION. C. REJECTING THE ALTERNATIVE CONTENTION OF THE ASSESSE E FOR LEVYING TAX U/S 115BBE WHILE INTERPRETING THE SAME TO BE RE TROSPECTIVE IN NATURE FOR AY 2017-18 IN THE CASE OF THE ASSESSE E. 3. FROM THE RECORD WE FOUND THAT THE AO DURING THE IMPUGNED ASSESSMENT PROCEEDINGS, MADE THE TOTAL ADDITION OF RS. 1,18,11,569/- BY TAXING THE SAME U/S 115BBE OF THE ACT, HOWEVER, LD. CIT(A) UPHELD THE ADDITION OF RS. 4,75,000/- OUT OF ADDITION MADE RS. 1,18,11,569/ AS PER ASSESSMENT ORDER. FURTHER, AN ADDITION OF RS.1,00,0 0,000/ MADE BY AO WAS CONFIRMED AS UNEXPLAINED INVESTMENT. 4. HOWEVER, THE AO WHILE MAKING IMPUGNED ASSESSMENT , TREATED THE INCOME OF RS.1,18,11,569/- AS INCOME FROM OTHER SOU RCES U/S 69A AND TAXED IT HIGHER RATE U/S 115BBE OF THE ACT ALLEGING THE SAME TO BE UNEXPLAINED MONEY/ UNDISCLOSED INCOME. THE LD. CIT( A) DELETED THE ADDITION OF RS.1,13,36,569/- CONSIDERING IT AS BUSI NESS INCOME OUT OF RS.1,18,11,569/- AND CONFIRMED THE ADDITION AT RS.4 ,75,000/-(PARA 4.3.1(II) AT PAGE 11 & 12 OF THE APPELLATE ORDER) A S UNDISCLOSED INCOME IN THE NATURE OF UNEXPLAINED INVESTMENT U/S 69 OF THE ACT AS AGAINST ADDITION MADE U/S 69A BY THE AO AS PER ASSESSMENT O RDER. 4 ITA 266 & 392/JODH/2019 SATYA NR. CHOUDHARY VS ACIT 5. IT IS CLEAR FROM THE RECORD THAT THE INCOME OF R S.118,11,569/ DULY DECLARED IN THE ITR FILED U/S 139 WHICH INCLUD ES RS.475,000/ UNDER APPEAL BEFORE THE BENCH. HOWEVER, THE ONLY DISPUTE IS WITH REGARD TO TREATING THE SAME AS UNEXPLAINED MONEY OR UNEXPLAIN ED INVESTMENT U/S 69/69A BY LOWER AUTHORITIES AND ACCORDINGLY TAXING THE SAME UNDER SPECIAL RATES OF INCOME OR REGULAR BUSINESS INCOME AS OFFERED BY ASSESSEE. THE PROVISIONS OF SECTION 69 OR 69A OF TH E ACT ARE NOT APPLICABLE IN THE FACTS OF THE CASE AS FAR AS THE Q UESTION OF INCOME OF RS. 4,75,000/- FROM PROPERTY TRANSACTION IS CONCERNED, WHICH IS IN THE NATURE OF NATURE OF BUSINESS INCOME AS ASSESSEE IS DULY EN GAGED IN THE BUSINESS OF REAL ESTATE ONLY. EVEN OTHERWISE, THE PROVISIONS OF SECTION 69 OR 69A ARE APPLICABLE IN CASE OF UNRECORDED TRANSACTION OR INVESTMENT, WHOSE NATURE AND SOURCE IS NOT EXPLAINED. HOWEVER, IN THE PRESENT CASE, THE ASSESSEE HAS DULY EXPLAINED THE NATURE AND SOURCE O F THE TRANSACTION AS WELL DULY DECLARED THE SAME IN ITS RETURN OF INCOME . 6. THE LD. CIT(A) DID NOT APPRECIATE THE SUBMISSION MADE BY ASSESSEE DURING ASSESSMENT AS WELL AS APPELLATE PRO CEEDINGS, WHICH ESTABLISHES THAT THERE IS NO CASE OF ANY UNEXPLAINE D INVESTMENT, MONEY OR INCOME, AS NATURE AND SOURCE OF THE INCOME IS RE FLECTED AND EXPLAINED IN THE ITR FILED, BALANCE SHEET AND PROFIT & LOSS A CCOUNT, ITSELF, THEREFORE, QUESTION OF ANY INCOME FROM ANY UNDISCLOSED SOURCE DOES NOT ARISE. 5 ITA 266 & 392/JODH/2019 SATYA NR. CHOUDHARY VS ACIT ACCORDINGLY, WE DIRECT THE A.O. TO TREAT THE INCOME OF RS. 4.75 LACS AS INCOME FROM BUSINESS. 7. WITH REGARD TO ADDITION OF RS. 1,00,00,000/- U/S 69 OF THE ACT IT WAS ARGUED BY THE LD. AR OF THE ASSESSEE THAT THE PROVISIONS OF SECTION 69 ARE ATTRACTED WHEN THE INV ESTMENTS MADE ARE NOT RECORDED IN THE BOOKS OF ACCOUNTS AND THERE IS NO EXPLANATION ABOUT THE NATURE AND SOURCE OF INVESTMENTS. THUS, THIS SE CTION PRESUPPOSES THE FALLACY OR NON- RELIABILITY OF BOOKS OF ACCOUNT. TH EREFORE, THE PROVISIONS OF S. 142A ARE APPLICABLE WHEN THE ASSESSING OFFICER C ONCLUDES AND SATISFIES HIMSELF ABOUT FALLACY OR NON-RELIABILITY OF BOOKS O F ACCOUNTS. IF HE IS SATISFIED WITH THE CORRECTNESS OF THE BOOKS OF ACCO UNTS, THERE IS NO REASON TO APPLY THE PROVISIONS OF S. 69 AS AO AS WE LL AS LD. CIT(A) HAS NOT REJECTED THE BOOKS OF ACCOUNTS AND DETAILS OF E XPENSES INCURRED TOWARDS CONSTRUCTION PRODUCED BEFORE THEM, THEREFOR E SECTION 69 IS NOT APPLICABLE. FOR THIS PURPOSE, RELIANCE WAS PLACED O N THE FOLLOWING JUDICIAL PRONOUNCEMENTS: (I) PIRANI VS. ACIT 250 ITR 467, (II) VASANTHI VS. ACIT 257 ITR 94, (III) SURENDRA KHANDHAR VS. ACIT 321 ITR 254 (BOM.) (IV) JAGJIT PAL SINGH ANAND VS. CIT 320 ITR 106 (DE L.). RECENTLY, THE ITAT, DELHI IN THE CASE OF RAJENDRA K UMAR VS. DCIT IN ITA NO.1959/DEL/2017 DATED 27.02.2020 HELD THAT NO ADDI TION IS WARRANTED 6 ITA 266 & 392/JODH/2019 SATYA NR. CHOUDHARY VS ACIT AGAINST UNEXPLAINED INVESTMENT UNDER THE PROVISIONS OF SECTION 69 OF THE ACT, IT 1961 WHERE NO EVIDENCE IS AVAILABLE TO PROV E THAT ASSESSEE MADE PAYMENT BEYOND SALE AGREEMENT. 8. THE LD AR ALSO RELIED ON INSTRUCTION NO. F NO. 2 86/2/2003- IT (INV) DATED 10.03.2003, WHEREIN THE CBDT HAS DIRECT ED THAT: INSTANCES HAVE COME TO THE NOTICE OF THE BOARD WHE RE ASSESSEE HAVE CLAIMED THAT THEY HAVE BEEN FORCED TO CONFESS THE UNDISCLOSED INCOME DURING THE COURSE OF SEARCH & SE IZURE AND SURVEY OPERATIONS. SUCH CONFESSIONS, IF NOT BAS ED UPON RELIABLE EVIDENCE, ARE LATER RETRACTED BY THE CONCE RNED ASSESSEE WHILE FILING RETURN OF INCOME . IN THESE CIRCUMSTANCES, ON CONFESSIONS DURING THE COURSE OF SEARCH & SEIZURE AND SURVEY OPERATIONS DO NOT SERVE ANY USEF UL PURPOSE. IT IS, THEREFORE ADVISED THAT THERE SHOULD BE FOCUS AN D CONCENTRATION ON COLLECTION OF EVIDENCE OF INCOME WHICH LEADS TO INFORMATION ON WHAT HAS NOT BEEN DISCLOSED OR IS NOT LIKELY TO BE DISCLOSED BEFORE INCOME TAX DEPARTMENTS. SIMILARLY, WHILE STATEMENT DURING THE COURSE OF SEARCH & SEIZURE AND SURVEY OPERATION S, NO ATTEMPT SHOULD BE MADE TO OBTAIN CONFESSION AS TO T HE UNDISCLOSED INCOME. ANY ACTION ON THE CONTRARY SHAL L BE VIEWED ADVERSELY. FURTHER IN RESPECT OF PENDING ASSESSMENT PROCEEDINGS ALSO, ASSESSING OFFICER SHOU LD BE RELIED UPON THE EVIDENCES/ MATERIAL GATHERED DURING THE COURSE OF SEARCH/SURVEY OPERATIONS OR THEREAFTER WH ILE FRAMING THE RELEVANT ASSESSMENT ORDERS. 9. AS PER THE LD AR, IT IS THUS EVIDENT THAT IT HAS BEEN DIRECTED BY THE BOARD THAT NO ADDITION SHOULD BE MADE ON THE BA SIS OF CONFESSIONS BUT ON THE BASIS OF EVIDENCES/ MATERIAL GATHERED DU RING THE COURSE OF SEARCH OR THEREAFTER. IT IS SETTLED LAW THAT EVERY OFFICER AND PERSON 7 ITA 266 & 392/JODH/2019 SATYA NR. CHOUDHARY VS ACIT EMPLOYED IN THE EXECUTION OF THE ACT SHALL OBSERVE AND FOLLOW THE ORDERS, INSTRUCTIONS AND DIRECTIONS OF THE BOARD AND AS SUC H BENEVOLENT CIRCULARS ARE BINDING ON THE INCOME TAX AUTHORITIES EVEN IF I T IS DEVIATING FROM THE PROVISIONS CONTAINED IN THE ACT. 10. RELIANCE WAS ALSO PLACED BY LD. AR ON THE DECIS ION OF THE HON'BLE MADRAS HIGH COURT IN THE CASE OF M. NARAYAN AN & BROS, VS. ACIT, SALEM (2011) 13 TAXMANN.COM 49 (MAD.) HELD IN THIS CASE, IN THE COURSE OF ASSESSMENT PROCEEDINGS, ASSESSEE RETRACTED THE S TATEMENT MADE ON DAY OF SEARCH AO REJECTED THE SAID PLEA AND MADE AS SESSMENT ON THE BASIS OF CONFESSIONAL STATEMENTS GIVEN BY THE ASSES SEE. IT WAS HELD THAT THOUGH THE STATEMENT RENDERED AT THE TIME OF SEARCH MAY BE USED AS EVIDENCE IN ANY PROCEEDINGS, BUT THAT BY ITSELF CAN NOT BECOME THE SOLE MATERIAL TO REST THE ASSESSMENT, MORE SO WHEN THE A SSESSEE SOUGHT TO WITHDRAW THE SAME BY PRODUCING MATERIAL EVIDENCE IN SUPPORT OF SUCH RETRACTION. IT IS ALWAYS OPEN TO THE PERSON WHO HAS MADE THE ADMISSION TO SHOW THAT THE STATEMENT TO OFFER INCOME IS INCOR RECT. THAT APART, THE CASE OF THE ASSESSEE ALSO STANDS SUPPORTED BY CIRCU LAR NO. F. NO. 286/2/2003-IT (INV.), DATED 10-3-2003 WHEREIN CBDT HAS GIVEN CATEGORICAL DIRECTIONS TO THE DEPARTMENTAL OFFICERS THAT UNDUE EMPHASIS SHOULD NOT BE PLACED ON THE RECORDED STATEMENTS. 11. SIMILARLY, IN THE CASE OF ACIT VS. JORAWAR SING H M.RATHOD 148 TAXMAN 35 (AHD.) IT HAS BEEN HELD BY ITAT, AHMADABA D 'B' BENCH THAT 8 ITA 266 & 392/JODH/2019 SATYA NR. CHOUDHARY VS ACIT ' ADDITION MADE BY THE ASSESSING OFFICER MERELY ON TH E BASIS OF RETRACTED STATEMENT U/S 132(4) COULD NOT BE SUSTAIN ED IN THE ABSENCE OF ANY EVIDENCE, MATERIAL OR RECOVERY OF AN Y MOVABLE OR IMMOVABLE ASSETS AT THE TIME OF SEARCH TO CORROBORA TE THE DISCLOSURE MADE BY THE ASSESSEE.' 12. THE ASSESSEE IN SUPPORT OF THE VARIOUS CONTENTI ONS RAISED FURTHER, PLACES RELIANCE ON THE FOLLOWING JUDICIAL PRECEDENT S: 1956 (SC) 9 PANGAMBAN KALANJOY SINGH VS. STATE OF MANIPUR. IT IS ALSO SETTLED LAW THAT THAT NO ASSESSING AUTHO RITY CAN PROCEED THE ASSESSMENT ON THE BASIS OF SURRENDER MADE AT TH E TIME OF SEARCH WHEN CORROBORATION THROUGH AN INDEPENDENT SO URCE IS A MUST WHICH HAS NOT BEEN DONE BY ASSESSING AUTHORITY KAILASHBEN MANHARLAL CHOKSHI V. CIT [2008] 174 TAXMAN 466 (GUJ.) DESPITE THE FACT THAT THE SAID STATEMENT WAS LATER ON RETRACTED, NO EVIDENCE HAD BEEN FURNISHED BY THE REVENUE AUTHORIT Y. THEREFORE, MERELY ON THE BASIS OF ADMISSION OF ASSESSEE, ADDIT IONS COULD NOT BE MADE UNLESS AND UNTIL SOME CORROBORATIVE EVIDENC E WAS FOUND IN SUPPORT OF SUCH ADMISSION. [A.C.I.T. VS. MRS. SUSHILADEVI S. AGARWAL 49 TTJ 66 3 (AHD)] A SEARCH OPERATION IS A GREAT INFRINGEMENT IN THE P ERSONAL LIFE OF THE ASSESSEE. IT CAUSES GREAT STRESS, ANXIETY AND TENSION AND IN SUCH CIRCUMSTANCES, IT CANNOT BE SAID THAT THE S TATEMENT RECEIVED DURING SEARCH IS FREE FROM ALL AMBIGUITY A ND DOUBT AND IT IS QUITE LIKELY THAT CERTAIN VITAL FACTS MAY BE OMI TTED OR IGNORED OR INCORRECTLY STATED [PALINODE RUBBER PRODUCE CO. PVT. LTD. VS. STATE OF KERALA (1971) 91 ITR 18 (SC)]. 9 ITA 266 & 392/JODH/2019 SATYA NR. CHOUDHARY VS ACIT AN ADMISSION OF FACT MADE BY AN ASSESSEE CONSTITUTE S AN IMPORTANT PIECE OF EVIDENCE BUT IT IS NOT CONCLUSIVE PROOF OF THE MATTER ADMITTED. IT IS REBUTTABLE AND IT IS OPEN TO THE AS SESSEE WHO MADE ADMISSION TO SHOW THAT IT IS INCORRECT. [G. MORGUES & BROS. VS. C.I.T. (1973) 88 ITR 432 (S C)]. AN ADMISSION MADE BY THE ASSESSEE BEFORE THE INCOME -TAX AUTHORITIES IS AN IMPORTANT PIECE OF EVIDENCE BUT H E IS ENTITLED TO SHOW THAT SUCH AN ADMISSION WAS MADE OUT OF IGNORANCE OF LAW OR IT WAS OTHERWISE VITIATED [C.I.T. V. BHANWARLAL 225 ITR 870 (RAJ)]. THE STATEMENT MADE BY AN ASSESSEE U/S 132 (4) IS NO T ALWAYS A UNIVERSAL TRUTH. THE STATEMENT OF THE ASSESSEE SHOU LD BE CORROBORATED WITH THE FACTS ON RECORD AND DOCUMENTS SEIZED AT THE TIME OF SEARCH TO ASCERTAIN ITS RELIABILITY. THE LA W OF NATURAL JUSTICE AND FAIR PLAY DEMANDS THAT THE SURROUNDING CIRCUMST ANCES AND OTHER RELEVANT FACTORS HAVE TO BE CONSIDERED BEFORE MAKING AN ADDITION SOLELY ON BASIS OF ADMISSION. IF THE ASSESSEE HAS STATED SOMETHING IN HIS STATEM ENT EITHER OUT OF IGNORANCE OF CERTAIN VITAL FACTS OR NEGLIGENCE, WHICH IS CONTRARY TO THE ESTABLISHED FACTS OF THE CASE, HE CANNOT BE ASSESSED TO TAX MERELY ON THE BASIS OF SUCH ERRONEOUS STATEMENT. SI MILARLY, IF THE ASSESSEE PRODUCES EVIDENCES, WHICH PROVE HIS ADMISS ION TO BE INCORRECT OR CONTRARY TO THE FACTS, AND SUCH EVIDEN CES REMAIN UNCONTROVERTED, ADDITION MADE IN SUCH CASE MERELY O N THE BASIS OF ADMISSION OF THE ASSESSEE CANNOT BE SUSTAINED. THER EFORE, AN ASSESSMENT CANNOT BE MADE MERELY ON THE BASIS OF ST ATEMENT U/S.132 (4), PARTICULARLY BY BRUSHING ASIDE CERTAIN UNCONTROVERTED FACTS. 10 ITA 266 & 392/JODH/2019 SATYA NR. CHOUDHARY VS ACIT THE FACTS OF THE CASE OF THE APPELLANT ARE SQUARELY COVERED BY THE AFORESAID DECISION OF THE JURISDICTIONAL HIGH COURT [C.I.T. V. BHANWARLAL 225 ITR 870 (RAJ)], THUS ADDITION IS LEGALLY NOT SUSTAINABLE. ARUN KUMAR BHANSALI VS DCIT (2006) 10 SOT 46 (BANG ) (URO) IT IS SETTLED LAW THAT THERE CANNOT BE ANY CONCESS ION AGAINST THE PROVISION OF LAW. EVEN THOUGH THE ASSESSEE ADMITTED AN AMOUNT BUT WAS ABLE TO DEMONSTRATE THAT THE INCOME ADMITTE D WAS NOT HIS INCOME OR THAT SUCH AMOUNT WAS NOT CHARGEABLE TO TA X, THE SAME COULD NOT BE BROUGHT TO TAX MERELY ON ADMISSION. SHREE CHAND SONI VS DCIT (2006) 101 TTJ (JD) 1028 A STATEMENT RECORDED UNDER SECTION 132(4) DOES NOT TANTA-MOUNT TO UNEARTHING ANY INCRIMINATING EVIDENCE DURING COU RSE OF SEARCH AND, THEREFORE, NO ADDITION CAN BE MADE ON THAT SCO RE ALONE. 13. FURTHER RELIANCE IS ALSO PLACED TO SUPPORT THE CONTENTION THAT NO ADDITION CAN BE MADE SIMPLY ON THE BASIS OF SURREND ER WITHOUT ANY COGENT AND VALID REASONS AND WHICH THE ASSESSEE HAS SUBSEQUENTLY RETRACTED. FOR THIS PROPOSITION, THE RELIANCE IS PL ACED ON THE FOLLOWING CASE LAWS :- SARWAN SINGH RATTAN SINGH V/S STATE OF PUNJAB (1975 ) AIR 1957 SC 637 KISHORE DASS V/S RAMGOPAL (1979) AIR 1979 SC 861 ACIT V/S SATYA NARAYAN AGGARWALA 255 ITR 69 KOL GANGA SARAN & SONS (P) LTD. VS ITO (1981) 130 ITR 1 (SC), ITO VS NAWAB MIR BARKAT AU KHAN BAHADUR (1974) 97 I TR 239 (SC) 11 ITA 266 & 392/JODH/2019 SATYA NR. CHOUDHARY VS ACIT BELIEF SHOULD NOT BE ARBITRARY OR IRRATIONAL BUT BA SED ON RELEVANT AND MATERIAL REASONS. 14. NO INCRIMINATING MATERIAL AS TO ALLEGED UNDISCL OSED INVESTMENT IN CONSTRUCTION ACTIVITY WAS FOUND DURING THE COURSE O F SEARCH IN CASE OF THE ASSESSEE, THEREFORE, IN THE ABSENCE OF INCRIMINATIN G MATERIAL FOUND, ADDITION CANNOT BE SUSTAINED MERELY ON THE BASIS OF WHAT HAS BEEN STATED IN STATEMENT RECORDED U/S 132(4) OF THE ACT AS THE SAME IS NOT CORROBORATED. IN SUPPORT OF THIS ARGUMENT THE ASSES SEE PLACES RELIANCE ON THE JUDGMENT OF HONBLE ANDRA PRADESH HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME-TAX-II, HYDERABAD VS. NARESH KUMAR AGARWAL REPORTED AT [2015] 53 TAXMANN.COM 306 (ANDHRA PRADE SH), WHEREIN IT WAS HELD THAT: IN SUCH A CASE, WHEN THE MANAGING DIRECTOR OR ANY O THER PERSONS WERE FOUND TO BE NOT IN POSSESSION OF ANY INCRIMINA TING MATERIAL, THE QUESTION OF EXAMINING THEM BY THE AUTHORISED OF FICER DURING THE COURSE OF SEARCH AND RECORDING ANY STATEMENT FR OM THEM BY INVOKING THE POWERS UNDER SECTION132(4) DOES NOT AR ISE. THEREFORE, THE STATEMENT OF THE MANAGING DIRECTOR O F THE ASSESSEE, RECORDED PATENTLY UNDER SECTION 132(4) OF THE ACT, DOES NOT HAVE ANY EVIDENTIARY VALUE. THIS PROVISION EMBEDDED IN S UB-SECTION (4) IS OBVIOUSLY BASED ON THE WELL ESTABLISHED RULE OF EVIDENCE THAT MERE CONFESSIONAL STATEMENT WITHOUT THERE BEING ANY DOCUMENTARY PROOF SHALL NOT BE USED IN EVIDENCE AGAINST THE PER SON WHO MADE SUCH STATEMENT. THE FINDING OF THE TRIBUNAL WAS BAS ED ON THE ABOVE WELL SETTLED PRINCIPLE. 12 ITA 266 & 392/JODH/2019 SATYA NR. CHOUDHARY VS ACIT THE LD. AR FURTHER ARGUED THAT IT IS EVIDENT FROM T HE FACTS/DOCUMENTS AVAILABLE ON THE RECORD, THAT THERE HAD BEEN NO PIE CE OF EVIDENCE FOUND DURING THE COURSE OF SEARCH RELATING TO ANY UNDISCL OSED ACTIVITY OR SOURCE OF INCOME. THE DECLARATION MADE IN THE STATEMENT HA S NOT BEEN PROVED CORRECT BY THE AO BY PUTTING FORTH ANY CORROBORATIV E EVIDENCE. THUS, THE SAID DECLARATION OF ALLEGED UNDISCLOSED INCOME BY T HE ASSESSEE WITHOUT ANY CREDIBLE EVIDENCE FOUND DURING THE COURSE OF SE ARCH CANNOT BE RELIED UPON AND MAKING ADDITIONS MERELY ON THE BASIS OF TH E SAME IS LEGALLY AND FACTUALLY INCORRECT. 15. FACTS OF THE CASE OF THE ASSESSEE ARE SQUARELY COVERED BY THE JUDGMENT OF THE HONBLE ITAT JAIPUR DELIVERED ON 12 .04.2018 IN CASE OF SATISH CHANDRA AGARWAL BY APPEAL ITA NO. 311/JP/201 5. RELEVANT PARA 7 IS REPRODUCED AS UNDER: 7. THE BENCH HAVE HEARD BOTH THE SIDES ON THESE IS SUES. WE HAVE ALSO GONE THROUGH THE CASE LAWS RELIED UPON. T HE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. S. KHADER KHAN SON CITED (SUPRA) HAS HELD THAT AN ADMISSION IS AN EXTREMELY IMPORTANT PIECE OF EVIDENCE BUT IT CANNOT BE SAID THAT IT IS CONCLUSIVE AND IT IS OPEN TO THE PERSON WHO MADE THE ADMISSION TO SHO W THAT IT IS INCORRECT AND THAT THE ASSESSEE SHOULD BE GIVEN A P ROPER OPPORTUNITY TO SHOW THAT THE BOOKS OF ACCOUNT DO NO T CORRECTLY DISCLOSE THE CORRECT STATE OF FACTS. IN THIS CASE, THE ASSESSEE MADE STATEMENT DURING THE SURVEY AND SURRENDERED RS.60,0 9,418/- ON ACCOUNT OF EXCESS CASH, RS. 8,04,155/- UNACCOUNTED DEBTORS, RS. 13,62,000/- EXCESS STOCK, RS. 28,43,409/- AND ON AC COUNT OF ADVANCE OF RS. 10.00 LACS TO SHRI PAWAN KUMAR. THE ASSESSEE HAS 13 ITA 266 & 392/JODH/2019 SATYA NR. CHOUDHARY VS ACIT NOT DISCLOSED THESE AMOUNTS IN THE RETURN OF INCOME AND RETRACTED FROM STATEMENT. IN SUCH A SITUATION, IT I S THE DUTY OF THE ASSESSING OFFICER TO INVESTIGATE THE ISSUES FURTHER AND ESTABLISH ON EACH AND EVERY ISSUE ON WHICH THE SURRENDER WAS MADE TO ESTABLISH THE CORRECTNESS OF UNDISCLOSED AMOUNT BY MAKING FURTHER ENQUIRIES. THE A.O. HAS FAILED TO DO SO. HE HAS SIMPLY MADE THE ADDITION ON THE BASIS OF STATEMENT MADE DU RING THE SURVEY WHICH ASSESSEE HAD NOT HONOURED. THE HONBLE KERALA HIGH COURT IN THE CASE OF PAUL MATHEWS & SONS (SUPR A) HAS ALSO HELD THAT SECTION 133A(3)(III) ENABLE THE AUTHORITY TO RECORD THE STATEMENT OF ANY PERSON WHICH MAY BE USEFUL FOR, OR RELEVANT TO, ANY PROCEEDING UNDER THE ACT. SECTION 133A, HOWEVER , ENABLES THE INCOME TAX AUTHORITY ONLY TO RECORD ANY STATEME NT OF ANY PERSON WHICH MAY BE USEFUL, BUT DOES NOT AUTHORIZE TAKING ANY SWORN STATEMENT. THUS, IT IS TRITE LAW THAT SECTION 133A DOES NOT EMPOWER ANY INCOME TAX AUTHORITY TO EXAMINE ANY PER SON ON OATH AND THEN USE IT AS EVIDENCE TO MAKE ADDITION. IN SUCH A SITUATION, NO ADDITION CAN BE MADE OR SUSTAINED ONL Y ON THE BASIS OF THE STATEMENT RECORDED DURING THE SURVEY U/S 133 A OF THE ACT. ONCE THE ASSESSEE HAS RETRACTED FROM THE STATEMENT THEN ITWAS ON THE A.O. TO ESTABLISH BEYOND ANY DOUBT THE ISSUE S ON WHICH THE ADDITION HAS BEEN MADE. ONCE THE ASSESSEE HAS S UBMITTED UP TO DATE CASH BOOK AND STOCK REGISTER THEN IT WAS DU TY OF THE ASSESSING OFFICER TO PIN POINT THE DEFECTS IN SUCH BOOKS OF ACCOUNT PARTICULARLY WITH REGARD TO THE ISSUES, ON WHICH THE STATEMENT WAS RECORDED DURING THE SURVEY. FURTHER I N THE CASE OF SHRI PAWAN KUMAR, EVEN THE ASSESSING OFFICER RECORD ED HIS STATEMENT BUT HE HAS NOT ASKED ANY QUESTION WITH RE GARD TO AMOUNT OF ADVANCE OF RS. 10.00 LACS FOR WHICH THE A DDITION HAS BEEN MADE ONLY ON THE BASIS OF A PIECE OF PAPER, WH ICH WAS NOT SIGNED BY SHRI PAWAN KUMAR. SIMILARLY IN THE CASE O F DEBTORS, ONCE THE ASSESSEE HAS RETRACTED THEN IT WAS THE DUT Y OF THE ASSESSING OFFICER TO EXAMINE THESE DEBTORS TO ESTAB LISH THE TRUTHFULNESS OF THE DEBT. THE LD DR HAS RELIED ON T HE DECISION OF 14 ITA 266 & 392/JODH/2019 SATYA NR. CHOUDHARY VS ACIT HONBLE BOMBAY HIGH COURT IN THE CASE OF DR. DINESH JAIN VS. ITO (SUPRA) AND DECISIONS OF HONBLE RAJASTHANHIGH COUR T IN THE CASE OF RAMESHWAR LAL MALI VS CIT (SUPRA), WE HAVE CONSI DERED THE FACTS AND LAW INVOLVED IN THESE CASES AND WE FIND T HAT THE FACTS ARE AT VARIATION FROM THESE CASES, THEREFORE, THE R ATIO LAID DOWN IN THESE CASES ARE NOT APPLICABLE TO THE ASSESSEES CA SE. CONSIDERING ALL THESE ASPECTS, WE FIND NO MERIT IN SUSTAINING T HE ADDITION ONLY BASED ON THE STATEMENT RECORDED DURING THE COURSE O F SURVEY. HENCE GROUNDS NO. 1 TO 5 OF THE APPEAL ARE ALLOWED. 16. THE LD. AR FURTHER PLACED RELIANCE ON THE JUDGM ENT OF HONBLE THIS BENCH IN THE FOLLOWING CASES TO SUPPORT THE CONTENT IONS RAISED HEREIN ABOVE : R.K. SYNTHETICS VS. INCOME-TAX OFFICER[2004] 3 SOT 268 (JODH.) THE ASSESSEE HAD BEEN MAINTAINING COMPLETE FINANCIA L AND QUANTITATIVE RECORDS AT ALL STAGES OF PRODUCTION AN D NO SPECIFIC DEFECTS HAD BEEN POINTED OUT BY THE AUTHORITIES BEL OW. THE COMMISSIONER (APPEALS) HAD CATEGORICALLY MENTIONED THAT THE ASSESSING OFFICER HAD NOT POINTED OUT ANY DEFECTS I N THE BOOKS OF ACCOUNT NOR BROUGHT ANY ON RECORD AND THAT THE ASSE SSING OFFICER WAS NOT JUSTIFIED IN REJECTING THE BOOKS OF ACCOUNT AGAINST WHICH THE DEPARTMENT HAD NOT COME IN SECOND APPEAL. IN TH E CIRCUMSTANCES, THE TOTALITY OF THE FACTS AND CIRCUM STANCES DID NOT JUSTIFY ADDITIONS UNDER SECTION 69 MERELY ON THE BA SIS OF THE STATEMENT OF THE SAID PARTNER WITHOUT ANY FURTHER S UPPORTING EVIDENCE BEING ON RECORD. OM PRAKASH JOSHI VS. INCOME-TAX OFFICER [2009] 34 S OT 33 (JODHPUR) (URO) SINCE ASSESSEE HAD EXPLAINED THAT STAMP DUTY WAS PA ID BY HIM OUT OF ADVANCE AMOUNT AS REFLECTED IN BALANCE SHEET AND ONLY ACCOUNTING ADJUSTMENT REMAINED TO BE MADE, IN SUCH SITUATION WITHOUT BRINGING ANY ADVERSE MATERIAL ON RECORD, AS SESSING OFFICER WAS NOT JUSTIFIED IN MAKING ADDITION 15 ITA 266 & 392/JODH/2019 SATYA NR. CHOUDHARY VS ACIT 17. WITH REGARD TO A.O.S OBSERVATION AT PAGE NO. 2 0, PARA 6.6. OF THE ASSESSMENT ORDER, IT WAS CONTENTION OF THE LD AR THAT THE ALLEGATION OF THE A.O. WAS NOT CORRECT IN SO FAR AS HE ALLEGED THAT THE ASSESSEE FAILED TO FURNISH CASH BO OK MAINTAINED FOR CONSTRUCTION PURPOSES, WHICH IS CONTRARY TO FACT TH AT DURING ASSESSMENT PROCEEDINGS, CASH BOOK WAS SUBMITTED VIDE SUBMISSIO N DATED 20.09.2018 VIDE LETTER DATED 05.09.2018 AS STATED IN PARA 6.5 AT PAGE 19 OF THE ASSESSMENT ORDER. COPY OF THE SUBMISSION DATED 20.0 9.2018 DULY ACKNOWLEDGED BY THE DEPARTMENT IS PLACED HEREWITH I N THE PAPER BOOK (PB PAGE NO.98 -150). RELEVANT EXTRACTS FROM PARA 6 .5 AT PAGE 19 OF THE ASSESSMENT ORDER AT PB PAGE 128 & 148 IN THIS REGAR D IS REPRODUCED BELOW FOR READY REFERENCE: WE ALSO ENCLOSE HEREWITH RECONCILIATION STATEMENT ALONGWITH COPY OF CASH BOOK AFTER ENTERING RELEVANT UNRECORDED VOUCHERS AND CASH BOOK AS ON DATE OF SEA RCH 16.09.2016 SEPARATELY. 18. THE ASSESSEE ALSO PRODUCED ALL RELEVANT BOOKS O F ACCOUNTS/ DOCUMENTS BEFORE THE AO AS STATED ON LAST PAGE OF T HE LETTER DATED 05.09.2018 SUBMITTED ON 20.09.2018 AND THE AO HAS N OT POINTED OUT ANY DISCREPANCIES THEREIN. THUS, ALLEGATION OF THE AO IS TOTALLY BASELESS. ADDITIONALLY, OUR ATTENTION WAS INVITED TO THE FOLL OWING DOCUMENTARY EVIDENCES SUBMITTED DURING THE COURSE OF ASSESSMENT PROCEEDINGS, WHICH NEGATES THE ALLEGATION OF THE AO: 16 ITA 266 & 392/JODH/2019 SATYA NR. CHOUDHARY VS ACIT A. LETTER DATED 06.08.2018 FROM ASSESSEE TO LD. AO DUL Y RECEIPTED /SUBMITTED ON 23.08.2018, COPY ENCLOSED PB AT 75. B. FURTHER ANNEXURE 8 PB PAGE 80 FORMING PART OF LETTE R DATED 06.08.2018 INCLUDES COPY OF STATEMENT OF ALL BANK A CCOUNTS DULY RECONCILED WITH BOOKS OF ACCOUNTS ALONGWITH NA TURE AND SOURCE OF EACH CREDIT ENTRIES. THE ASSESSEE HAS ALSO PRODUCED ALL RELEVANT BOOKS O F ACCOUNTS/ DOCUMENTS BEFORE THE AO AND THE AO HAS NOT POINTED OUT ANY DISCREPANCIES THEREIN. C. LETTER DATED 21.11.2018 FROM ASSESSEE TO AO AND REL EVANT PARA THEREIN AS AT S. NO. 5 TO 10 ENCLOSED AT PB ---. T HE APPELLANT HAS SOUGHT MUTUAL SET OFF OR TELESCOPING OF ESTIMATED A DDITION OF UNDISCLOSED INCOME AND VALUE OF UNEXPLAINED ASSETS OUT OF INCOME OFFERED AS PER SEIZED DOCUMENTS. D. LETTER DATED 22.11.2018 FROM ASSESSEE ALSO SUBMITTE D BEFORE THE AO IN RELATION TO CASH SHORT FOUND ENCLOSED AT PB 1 56-165. THE APPELLANT HAS ALSO PRODUCED ALL RELEVANT BOOKS OF A CCOUNTS/ DOCUMENTS ALONGWITH THE LETTER BEFORE THE AO AND TH E AO HAS NOT POINTED OUT ANY DISCREPANCIES THEREIN. IN THIS CONNECTION, IT IS FURTHER SUBMITTED THAT TH E CERTIFIED COPIES OF THE ORDER SHEET IN RELATION TO ASSESSMENT PROCEEDINGS O BTAINED FROM THE DEPARTMENT REFLECT THAT THE ASSESSEE HAS FURNISHED ALL INFORMATION/ DOCUMENTS IN COMPLIANCE OF THE ASSESSMENT PROCEEDIN GS. COPIES OF THE ENTIRE ORDER SHEET / ASSESSMENT PROCEEDINGS ARE ENC LOSED IN PAPER BOOK AT PB PAGE 218-222. 17 ITA 266 & 392/JODH/2019 SATYA NR. CHOUDHARY VS ACIT 19. IT WAS ALSO SUBMITTED THAT THE CASH WITHDRAWAL FROM BANK ACCOUNTS USED FOR CONSTRUCTION ACTIVITIES CANNOT BE CALLED AS UNDISCLOSED INVESTMENT IN CONSTRUCTION ACTIVITIES. FURTHER CASH WITHDRAWALS FROM BANK WERE OUT OF BALANCE LYING CREDIT IN BANK ACCOUNT OF THE ASSESSEE. IT IS NOT UNDER DISPUTE AS AO HAS EXAMINED ALL THE TRANSACTIO NS AS APPEARING IN THE BANK STATEMENT AND CASH BOOKS SUBMITTED BEFORE HIM VIDE LETTER DATED 05.09.2018 AS SUBMITTED ON 20.09.2018 AS REFE RRED HEREIN ABOVE. IT WAS FURTHER SUBMITTED THAT THE SUMMARY OF CASH O N DATE OF SEARCH WITHDRAWAL FROM BANKS ARE AS BELOW : S. NO. PARTICULARS AMOUNT RS. 1 OPENING BALANCE AS ON 01.04.2019 3,98,390 2. ADD: WITHDRAWALS FROM BANKS TILL DATE OF SEARCH (I) STATE BANK OF INDIA 42,90,000 (II) PUNJAB NATIONAL BANK 5,00,000 (III) CANARA BANK 3,00,000 (IV) TOTAL WITHDRAWALS FROM BANKS (I + II + III) 50,90,0 00 3. TOTAL OF OPENING BALANCE AND WITHDRAWALS FROM BANKS 54 ,88,390 IN VIEW OF ABOVE, CASH BALANCE IN THE HAND OF THE A SSESSEE ACCUMULATED OUT OF ABOVE STATED WITHDRAWALS AS ON DATE OF SEARC H REPORTED AT RS.30,71,397/ DUE TO INCOMPLETE RECORDS CANNOT BE C ALLED AS UNEXPLAINED INVESTMENT USED IN CONSTRUCTION ACTIVITIES. 20. WITH REGARD TO A.O.S ALLEGATION THAT THERE WAS NO BILLS OR INCOMPLETE VOUCHERS WITH REGARD TO COST OF CONSTRUC TION, IT 18 ITA 266 & 392/JODH/2019 SATYA NR. CHOUDHARY VS ACIT WAS SUBMITTED BY THE LD AR THAT THERE IS NO REQUIRE MENT TO MAINTAIN BILLS ETC, IN RELATION TO CONSTRUCTION EXP ENSES AS SAME IS NOT CLAIMED AS BUSINESS EXPENSES NOR DEPRECIATION CLAIM ED THEREON. HOWEVER, DETAILS OF THE CONSTRUCTION EXPENSES WAS P ROVIDED TO THE AO VIDE LETTER DATED 20.12.2018 (PB PAGES 194-202) IN COMPLIANCE OF THE ORDER SHEET DATED 17.12.2018. IT IS RELEVANT TO SUB MIT THAT THE AO HAS NOT POINTED OUT ANY DISCREPANCIES IN THE DETAILS OF THE CONSTRUCTION EXPENSES SUBMITTED BEFORE HIM NOR ASKED ANY FURTHER CLARIFICATION WHICH REQUIRED TO BE PROVIDED BY THE ASSESSEE. 21. ADVERTING TO THE ALLEGATION OF LD. CIT(A) IN HI S APPELLATE ORDER, IT WAS CONTENTION OF THE LD AR THAT THE LD. CIT(A) HAS ALLEGED THAT SINCE THE ASSESSEE HAS NOT FILED ANY V ALUATION REPORT, THEREFORE, BUILDING ACCOUNT SUBMITTED IS NOT RELIAB LE. IN THIS RESPECT, IT IS HUMBLY SUBMITTED THAT THE SAID ALLEGATION OF THE LD . CIT(A) IS MERELY ON THE BASIS OF DOUBTS AND SUSPICION ONLY, NO PIN POIN TED DEFECTS OR OTHERWISE HAD BEEN POINTED IN THE DOCUMENTARY EVIDE NCES SUBMITTED BY THE ASSESSEE NEITHER BY AO NOR BY LD. CIT(A). THERE FORE, THIS ALLEGATION FOR SUSTAINING THE ADDITION DESERVES TO BE NEGATED. FURTHERMORE, AS STATED ABOVE, THE BURDEN TO PROVE UNDISCLOSED INVES TMENT IS ON THE DEPARTMENT, THEREFORE, QUESTION OF MAKING REFERENCE TO VALUATION IS DUTY OF THE DEPARTMENT AND ASSESSEE CANNOT BE BLAMED FOR THE SAME. RATHER THIS BASIS OF THE LD. CIT(A) IS CONTRARY TO FACTS A VAILABLE ON RECORD AS NO 19 ITA 266 & 392/JODH/2019 SATYA NR. CHOUDHARY VS ACIT ATTEMPT MADE BY AO TO PROVE ANY UNDISCLOSED INVESTM ENT BY THE ASSESSEE. 22. THE LD AR HAS FURTHER ARGUED THAT NO ADVERSE OB SERVATIONS POINTED OUT IN RELATION TO THE RECONCILIATION, RATH ER ACCEPTED ALL ENTRIES, DESPITE THIS, ADDITION HAS BEEN SUSTAINED BY THE LD . CIT(A) ARBITRARILY AND CONTRARY TO ITS OWN FINDINGS. 23. ON THE OTHER HAND, THE LD DR HAS RELIED ON THE ORDERS OF THE LOWER AUTHORITIES AND CONTENDED THAT THE ASSESS EE IN HIS STATEMENT U/S 132(4), RECORDED DURING SEARCH, THE A SSESSEE ADMITTED UNDISCLOSED INCOME AGGREGATING RS. 2,18,11,563/- BA SED ON SEIZED MATERIAL AND DISCREPANCY FOUND AS UNDER:- I. DISCLOSURE OF RS. 11,0,000/- ON ACCOUNT OF LOAN OF UNACCOUNTED COMMISSION INCOME FROM PROPERTY TRANSAC TION. II. DISCLOSURE OF RS. 5,66,563/- ON ACCOUNT OF LOA N GIVEN FROM UNACCOUNTED SOURCES OF RS. 4,75,00/- AND INTEREST I NCOME THEREON RS. 91,563/- WHICH IS ALSO UNACCOUNTED. III. DISCLOSURE OF RS. 48,95,000/- ON ACCOUNT OF UN ACCOUNTED INCOME/RECEIPT IN CASH OF RS. 48,95,000/-. IV. DISCLOSURE OF INCOME OF RS. 52,50,00/- BASED ON ENTRIES IN POCKET DIARY FOUND AND SEIZED DURING SEARCH, MARKED AS ANNEXURE-AS, EXHIBIT 1 TO 6. V. DISCLOSURE OF RS. 1,00,00,000/- ON ACCOUNT OF UN EXPLAINED INVESTMENT IN CONSTRUCTION OF MOUNT VIEW SCHOOL AND HOUSE OF ASSESSEE'S SON SH. OM PRAKASH. 24. AS PER THE LD DR IN THE RETURN OF INCOME THE AS SESSEE OFFERED TO TAX ONLY THE INCOME AS NOTED IN (I) TO (IV) ABOVE, AGGREGATING RS. 20 ITA 266 & 392/JODH/2019 SATYA NR. CHOUDHARY VS ACIT 1,18,11,563/-. FURTHER, THE ENTIRE INCOME OF RS. 1, 18,11,563/- WAS DECLARED IN THE RETURN OF INCOME UNDER THE HEAD 'BU SINESS AND PROFESSION' AND AGAINST THIS UNDISCLOSED INCOME, TH E ASSESSEE CLAIMED SET OFF OF BUSINESS LOSS OF RS. 1,05,11,789/-. HE F URTHER CONTENDED THAT HAVING MADE A STATEMENT ON OATH, THE BURDEN WAS ON THE ASSESSEE TO SHOW WITH EVIDENCE THAT HIS STATEMENT U/S 132(4) WA S ERRONEOUS. FURTHER, NO BILLS/VOUCHERS FOR CONSTRUCTION ACTIVIT Y WAS AVAILABLE WITH THE ASSESSEE. NO VALUATION REPORT WAS FILED BY THE ASSE SSEE DESPITE THE A.O. SPECIFICALLY GIVING THE ASSESSEE AN OPPORTUNITY TO DO SO VIDE QUERY LETTER DATED 16.07.2018 (PARA 6.2 OF THE ASSESSMENT ORDER REFERS) ACCOUNTS OF CONSTRUCTION ACTIVITY WERE MAINTAINED. THUS THE BUI LDING ACCOUNT OF SCHOOL, SHOWING INVESTMENT OF RS. 3,48,32,781/- TIL L THE DATE OF SEARCH IN CONSTRUCTION OF SCHOOL, AND BUILDING ACCOUNT SHOWIN G INVESTMENT OF RS. 29,64,831/-IN SON'S HOUSE TILL 31.03.2016, FILED IN ASSESSMENT AND IN APPEAL, HAVE NO CREDIBILITY. 25. WE HAVE HEARD THE RIVAL CONTENTIONS AND CAREFUL LY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE HAD ALSO DELIBERATED ON THE JUDICIAL PRONOUNCEMENTS REFERRED BY LOWER AUTHORITIES IN THEIR RESPECTIVE ORDERS AS WELL AS C ITED BY THE LD. AR AS WELL AS THE LD DR DURING THE COURSE OF HEARIN G BEFORE US IN CONTEXT OF FACTUAL MATRIX OF THE CASE. FROM THE RECORD, WE FOUND THAT DURING THE SEARCH PROCEEDINGS ON 17.09.2 016, CASH OF 21 ITA 266 & 392/JODH/2019 SATYA NR. CHOUDHARY VS ACIT RS.23,30,150/- WAS FOUND FROM THE PREMISES OF THE A SSESSEE. THE CASH BALANCES RS.1,25,93,421/- WAS DERIVED FROM INCOMPLE TE CASH BOOKS OF VARIOUS ASSESSEES OF THE GROUP. DETAILS OF CASH BA LANCES DERIVED FROM INCOMPLETE CASH BOOKS OF VARIOUS ASSESSEES OF THE GROUP ARE REPRODUCED (CIT(A) ORDER PAGE 25) AS BELOW: S. NO. ASSESSEE CASH IN HAND AS PER DATA TAKEN BY SEARCH TEAM AMOUNT RS. 1 CHOUDHARY PROPERTY DEALERS P LTD 326490 2 BHAGWANTI DEVI 112160 3 BHAWANA CHOUDHARY 604156 4 CHOUDHARY AVASAVAM VITTA P LTD 1563441 5 GANGA DEVI 416810 6 LOKESH CHOUDHARY 1486626 7 OM PRAKASH 2813482 8 SANJAY CHOUDHARY 813083 9 SANTOSH CHOUDHARY 572693 10 SATYA NARAYAN CHOUDHARY 3071397 11 SURESH CHOUDHARY 813083 TOTAL 1,25,93,421 / THUS, ON THE BASIS OF CASH BALANCE IN INCOMPLETE BO OKS AS COMPARED TO ACTUAL CASH FOUND, THERE WAS PHYSICAL SHORT CASH OF RS. 1,02,63,271/- WAS FOUND DURING THE COURSE OF SEARCH. THE ASSESSEE WAS CONFRONTED DURING SEARCH PROCEEDINGS BY THE SEARCH TEAM TO OFF ER HIS EXPLANATION REGARDING CASH FOUND OF RS. 23,30,150/-. THE ASSESS EE IN HIS STATEMENT RECORDED DATED 18.09.2016 EXPLAINED IN ANSWER TO QU ESTION 13 DURING 22 ITA 266 & 392/JODH/2019 SATYA NR. CHOUDHARY VS ACIT THE COURSE OF SEARCH PROCEEDINGS THAT THE CASH RELA TES TO HIS FAMILY MEMBERS AND BUSINESS CONCERNS AND FROM PERSONAL SAV INGS. RELEVANT QUESTION AND ANSWERS RECORDED IN STATEMENT OF THE A SSESSEE PRODUCED AS BELOW: IT WAS ALSO EXPLAINED DURING THE COURSE OF THE SEAR CH PROCEEDINGS THAT TRANSACTIONS IN COMPUTER ARE INCOMPLETE AND MAINTAI NED ONLY TO KEEP CONTROL AND DISCIPLINE ON FAMILY MEMBERS AS FAMILY CONSISTS OF FOUR MARRIED SONS. DURING THE COURSE OF THE SEARCH PROCE EDINGS, QUESTION NO 14 ASKED BY THE DEPARTMENTAL OFFICIALS ESTABLISHES THAT IT IS FOUND THAT CASH BOOK IS NOT COMPLETE AND NOT UPDATED . IT IS ALSO RELEVANT TO OBSERVE THAT THE QUESTION NO . 14 ASKED BY DEPARTMENT DURING THE COURSE OF SEARCH/SURVEY ESTAB LISHES THE FINDING OF THE DEPARTMENT THAT CASH BOOKS OR OTHER ACCOUNTS BO OKS WERE INCOMPLETE. THUS, IT IS UNDISPUTED FACT THAT THE CA SH BALANCES RS.1,25,93,421/- WAS DERIVED FROM INCOMPLETE CASH B OOKS OF VARIOUS 23 ITA 266 & 392/JODH/2019 SATYA NR. CHOUDHARY VS ACIT ASSESSEES OF THE GROUP. THE ASSESSEE ON ACCOUNT OF MISTAKEN FACTS AND INCOMPLETE RECORDS, STATED IN ANSWER TO QUESTION NU MBER 14 DURING THE COURSE OF THE SEARCH PROCEEDINGS THAT AFORESAID CAS H SHORT WAS NOTICED ON ACCOUNT OF INCOMPLETE RECORDS AND EXPLAINED THAT IT HAS BEEN USED FOR CONSTRUCTION ACTIVITIES. HOWEVER, THE AO MERELY ON THE BASIS OF HIS STATEMENT MADE THE IMPUGNED ADDITION WITHOUT ESTABL ISHING ANY INVESTMENT IN CONSTRUCTION ACTIVITIES WITH ANY CORR OBORATING EVIDENCES. 26. BY THE IMPUGNED ORDER, THE LD. CIT(A) UPHELD TH E ACTION OF THE AO AND SUSTAINED THE IMPUGNED ADDITION OF RS. 1 CRORE IN THE HANDS OF THE ASSESSEE. 27. AS PER OUR CONSIDERED VIEW BEFORE MAKING ANY AD DITION FOR UNEXPLAINED INVESTMENT, IT IS FIRST TO BE ESTABLISH ED BY THE AO THAT (I) ANY INVESTMENT WAS MADE BY THE ASSESSEE AND (II) WHICH IS NOT RECORDED AND (III) FOR WHICH THERE IS NO EXPLANATION FOR SOURCE OF MAKING SUCH INVESTMENT. HOWEVER, IN THE PRESENT CASE, BOTH THE AO AS WELL AS LD. CIT(A) HAD NOT DISCHARGED THEIR BURDEN OF PROOF U/S 69 OF THE ACT FOR MAKING IMPUGNED ADDITION AS IT HAS NOT BEEN ESTABLI SHED WITH CORROBORATING EVIDENCES THAT THERE WAS ANY INVESTME NT OF RS. 1 CRORE BY THE ASSESSEE IN CONSTRUCTION ACTIVITIES AS PER THE CASE ATTEMPTED TO BE MADE BY THEM ON THE BASIS OF WRONG INFERENCE FROM T HE STATEMENT OF THE ASSESSEE RECORDED DURING SEARCH. THE FIRST POINT OF INQUIRY FOR MAKING IMPUGNED ADDITION BY THE AO IS ONLY WRONG INFERENCE FROM THE STATEMENT 24 ITA 266 & 392/JODH/2019 SATYA NR. CHOUDHARY VS ACIT RECORDED DURING SEARCH, WHICH STANDS RETRACTED WHIL E FILING RETURN OF INCOME ON ACCOUNT OF THE FACT THAT THERE WAS NO SUC H INVESTMENT AND NEITHER THERE WAS NO SUCH EVIDENCES FOUND DURING SE ARCH. 28. WE ALSO FOUND THAT DURING THE COURSE OF SEARCH PROCEEDINGS, NO INCRIMINATING MATERIAL WAS FOUND BY THE RESPECTIVE INCOME TAX AUTHORITIES FOR IMPUGNED ADDITION. THE SEARCH OPERATIONS DID NO T RESULT IN DISCOVERY OF ANY INCRIMINATING MATERIAL WHICH IS EVIDENT FROM THE FACT THAT THE AO IN THE ENTIRE ASSESSMENT ORDER HAS NOT RELIED ON AN Y MATERIAL BUT ONLY ON THE STATEMENT RECORDED BY THE ASSESSEE. THE EDIFICE OF ADDITION IS ONLY DISCLOSURE WHICH WAS EXTRACTED OUT FROM THE ASSESSE E. RELIANCE HAS BEEN TOTALLY PLACED ON THE STATEMENTS RECORDED UNDER SEC TION 132(4) OF THE ACT OF THE ASSESSEE, WHICH IS MISCONCEIVED, MISINTERPRE TED AND ILL FOUNDED. 29. IT IS ALSO CLEAR FROM THE ORDER OF THE A.O. THA T WHILE MAKING THE IMPUGNED ADDITIONS OF RS. 1 CRORE MERELY RELIED UPON THE STATEMENTS RECORDED UNDER SECTION 132(4) OF THE ACT WITHOUT ANY CORROBORATIVE DOCUMENTARY EVIDENCE ON RECORD. THOUG H, STATEMENTS ARE AN IMPORTANT PIECE OF EVIDENCE BUT THEY ARE NOT CON CLUSIVE. THE STATEMENTS SHOULD BE CORROBORATED WITH THE FACTS AN D DOCUMENTS ON RECORD TO ASCERTAIN THEIR RELIABILITY. IT IS BECAUS E OF THE FACT THAT A SEARCH CAUSES GREAT STRESS, ANXIETY AND TENSION AND THEREF ORE IT CANNOT BE SAID THAT THE STATEMENT RECORDED DURING SEARCH IS FREE F ROM ALL AMBIGUITY AND DOUBTS AND IT IS QUITE LIKELY THAT CERTAIN VITAL FA CTS MAY BE OMITTED OR 25 ITA 266 & 392/JODH/2019 SATYA NR. CHOUDHARY VS ACIT IGNORED OR INCORRECTLY STATED. IF THE ASSESSEE HAS STATED SOMETHING IN HIS STATEMENT EITHER OUT OF IGNORANCE OF CERTAIN VITAL FACTS OR NEGLIGENCE OR NON-AVAILABILITY OF RELEVANT MATERIAL, WHICH IS CON TRARY TO THE ESTABLISHED FACTS OF THE CASE, HE CANNOT BE ASSESSED TO TAX MER ELY ON THE BASIS OF SUCH ERRONEOUS STATEMENT. IT IS ALSO RELEVANT TO OB SERVE THAT ALLEGED PHYSICAL CASH SHORTAGE IS CONSEQUENTIAL TO INCOMPLE TE CASH BOOKS. CASH BOOKS ARE NOT MAINTAINED ON REGULAR BASIS BEING IND IVIDUAL STATUS OF THE VARIOUS ASSESSEES OF THE GROUP AND TURNOVER OF THE ASSESSEE WAS BELOW TAX AUDIT REQUIREMENT. ACCORDINGLY, ASSESSEE IN ITS QUESTION TO ANSWER NO. 13 STATED THAT AMOUNT OF CASH SHORT NOTICED WER E WITHDRAWN FROM BANKS AND SAVINGS OUT OF INCOME OFFERED FOR TAX AND HAS BEEN USED FOR CONSTRUCTION. THIS EXPLANATION EVEN IF CONSIDERED T O BE TRUE ALSO EXPLAINS THE AVAILABILITY OF SOURCE OF FUNDS. THUS, THE SOUR CE OF CONSTRUCTION WAS OUT OF THE DECLARED INCOME/SOURCES AND THERE WAS NO ADDITIONAL OR UNEXPLAINED INVESTMENT AS NO EVIDENCES RELATING TO ADDITIONAL CONSTRUCTION INVESTMENT WERE FOUND DURING SEARCH. 30. FROM THE RECORD WE ALSO FOUND THAT THE CASH BAL ANCES WERE TAKEN BASED ON INCOMPLETE DATA ENTRIES FROM COMPUTE R TO ARRIVE CASH SHORTAGE RELATING TO VARIOUS ASSESSEES OF THE GROU P DURING THE COURSE OF THE SEARCH PROCEEDINGS, THUS, CONCLUSION OF ALLEGED EXPENDITURE/ INVESTMENT CANNOT BE DRAWN BASED ON INCOMPLETE BOOK S WITHOUT CONSIDERING RECONCILIATION AND EXPLANATION OR SOME OTHER CORROBORATIVE 26 ITA 266 & 392/JODH/2019 SATYA NR. CHOUDHARY VS ACIT EVIDENCES FILED BY THE ASSESSEE. HOWEVER, AO TOOK A DVERSE INFERENCE FROM MERE STATEMENT RECORDED OF THE ASSESSEE UNDER MISTAKEN FACTS AND BELIEVES AND MADE THE IMPUGNED ADDITION OF RS. 1 CR ORE ALLEGING THEM TO BE INVESTMENT IN CONSTRUCTION ACTIVITIES BY THE ASS ESSEE. THERE IS NO BASIS FOR AMOUNT DETERMINED RS.1,00,00,000/ ALLEGED TO BE USED FOR CONSTRUCTION ACTIVITIES BY THE ASSESSEE. IT IS PER TINENT TO NOTE THAT THERE IS NO ADDITION IN THE IMPUGNED ASSESSMENT ORDER ON ACCOUNT OF SHORT CASH FOUND RATHER DURING ASSESSMENT PROCEEDINGS, TH E AO TOOK ENTIRELY DIFFERENT STAND OF MAKING IMPUGNED ADDITION OF RS. 1 CRORE FOR ALLEGED INVESTMENT OF RS. 1 CRORE BY TAKING INCORRECT INFER ENCE FROM THE STATEMENT OF THE ASSESSEE RECORDED DURING SEARCH. 31. WE FURTHER OBSERVE THAT NO DOCUMENT/PAPER WERE FOUND BY THE DEPARTMENT IN RELATION TO ALLEGED AMOUNT OF RS. 1 CRORE USED IN CONSTRUCTION ACTIVITIES WHICH IS UNEXPLAINED. FURTH ERMORE THE ASSESSEE HAS NEVER ADMITTED THAT HE HAS INCURRED CONSTRUCTIO N EXPENSES OUT OF BOOKS AS ALLEGED IN THE ASSESSMENT ORDER. IT IS ALS O CLEAR FROM THE ORDER OF THE A.O. AND THE LD. CIT(A) THAT THEY HAVE NEVER ASKED FOR ANY VALUATION REPORT. EVEN OTHERWISE, ONCE THERE ARE NO ADVERSE FINDINGS IN RELATION TO THE DETAILS OF COST INCURRED IN RELATIO N TO CONSTRUCTION PROVIDED, THERE IS NO NECESSITY OF VALUATION. THUS, VERY BASIS OF IMPUGNED ADDITION CONFIRMED BY LD. CIT(A) IS NOT JU STIFIED. 27 ITA 266 & 392/JODH/2019 SATYA NR. CHOUDHARY VS ACIT 32. THERE IS NO REASON TO CONFIRM ADDITION MERELY O N THE ASSUMPTION/ PRESUMPTION THAT THE COST IN CONSTRUCTION IN RELATI ON TO THE BUILDING ACCOUNT OF THE SCHOOL SHOWING INVESTMENT RS.348,32, 781/ TILL DATE OF SEARCH IN CONSTRUCTION OF SCHOOL AND BUILDING ACCOU NT SHOWING INVESTMENT OF RS.29,64,831/ IN SONS HOUSE AS FILED IN ASSESSM ENT AND IN APPEAL, HAVE NO CREDIBILITY WITHOUT ANY BASIS IN ABSENCE OF NO SINGLE ADVERSE DOCUMENT/ INFORMATION AVAILABLE WITH THE DEPARTMENT AND EVEN NOT FOUND DURING COURSE OF SEARCH, THEREFORE, ADDITION CONFIR MED BY THE LD. CIT(A) IS NOT LEGALLY SUSTAINABLE AS PER SETTLED POSITION OF LAW. 33. FROM THE RECORD, WE FOUND THAT DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, ASSESSEE VIDE LETTER DATED 20.12.2018, SUBMITTED DETAILS OF THE TOTAL INVESTMENT IN MOUNT VIEW SCHOOL BEDWASAT RS.4,00,18,782/ AS ON 31.03.2017. THERE IS NO ADVERSE FINDING POINTED OUT BY THE AO WHICH ESTABLISHES THA T THERE WAS NO SOURCE OF SUCH INVESTMENT, FURTHER NO DEFECTS/MISTA KES WERE POINTED OUT REGARDING THE SUPPORTING EVIDENCES SUBMITTED BY THE ASSESSEE. WE ALSO FOUND THAT MR. OM PRAKASH CHOUDHARY, SON OF ASSESSEE HAD ALSO INCURRED RS.29,64,831/ TOWARDS CONSTRUCTION OF HIS HOUSE WHICH WAS ALSO EXPLAINED WITH RELEVANT DETAILS AND DOCUMENTAR Y EVIDENCES FILED BEFORE THE AO. THE ASSESSMENT IN THE CASE OF MR. OM PRAKASH CHOUDHARY, SON OF ASSESSEE WAS CONCLUDED WITHOUT AN Y ADVERSE FINDINGS IN THIS REGARD. THE SOURCE OF INVESTMENT IN HIS HOU SE HAS BEEN ACCEPTED 28 ITA 266 & 392/JODH/2019 SATYA NR. CHOUDHARY VS ACIT AS SUCH BY THE AO VIDE ASSESSMENT IN HIS CASE DATED 26.12.2018. THUS, THE QUESTION OF ANY ADDITIONAL OR UNEXPLAINED INVES TMENT DOES NOT ARISES EVEN FROM THE DEPARTMENT OWN STAND TAKEN IN ASSESSM ENT OF SON OF THE ASSESSEE. IT ESTABLISHES THAT THE AO HAS ACCEPTED THE VARIATION OF CASH BALANCES IN CASE OF ALL OTHER ASSESSEES OF THE GRO UP BASED ON RECONCILIATION AND VERIFICATION OF RELEVANT RECORDS IN THE RESPECTIVE/ RELEVANT ASSESSMENTS, THEREFORE, HAD NOT DRAWN ANY ADVERSE INFERENCE. ACCORDINGLY, THE SHORT CASH DUE TO INCOMPLETE DATA ENTRIES RELATED TO OTHER FAMILY MEMBERS STANDS ACCEPTED BY THE A.O. WH ILE MAKING THEIR ASSESSMENTS WITHOUT ANY ADVERSE FINDINGS IN THIS RE GARD CANNOT BE TAXED AGAIN IN THE HAND OF THE ASSESSEE. FURTHER, THERE C ANNOT BE DIFFERENT APPROACH I.E. PICK AND CHOOSE THEORY ON THE SAME IS SUE IN THE CASE OF THE ASSESSEE IN COMPARISON TO OTHER GROUP ASSESSEE S FOR CASH SHORTAGE NOTICED DUE TO INCOMPLETE DATA ENTRIES. 34. THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS . S. KHADER KHAN SON CITED (SUPRA) HAS HELD THAT AN ADMISSION IS AN EXTREMELY IMPORTANT PIECE OF EVIDENCE BUT IT CANNOT BE SAID THAT IT IS CONCLUSIVE AND IT IS OPEN TO THE PERSON WHO MADE THE ADMISSION TO SHOW THAT I T IS INCORRECT. THE ASSESSEE CLEARLY STATED WHILE RECORDING STATEMENT D URING THE COURSE OF SEARCH THAT THAT THE BOOKS OF ACCOUNT DO NOT CORREC TLY DISCLOSE THE CORRECT STATE OF FACTS DUE TO INCOMPLETE ENTRY OF T RANSACTIONS ETC. IN THIS CASE, THE ASSESSEE MADE STATEMENT DURING THE SEARCH AND SURRENDERED 29 ITA 266 & 392/JODH/2019 SATYA NR. CHOUDHARY VS ACIT RS. 100,00,000/ WHICH IS WITHOUT ANY BASIS DUE TO I NCOMPLETE RECORDS, MISTAKEN FACTS AND BELIEVES. THE DEPARTMENT HAS NOT FOUND ANY SINGLE EVIDENCE IN RELATION TO AMOUNT SPENT MORE THAN AMOU NT DECLARED IN CONSTRUCTION ACTIVITIES BEFORE THE A.O. AND PRODUCE D BOOKS OF ACCOUNTS BEFORE THE AO, THEREFORE, NO ADVERSE INFERENCE CAN BE DRAWN IN THIS REGARD. IN VIEW OF THE ABOVE DISCUSSION, WE DIRECT THE A.O. TO DELETE THE ADDITION OF RS. 1,00,00,000/- SO MADE. 35. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. 36. NOW WE TAKE ITA NO. 266/JODH/2019 A.Y. 2012-13. IN THIS APPEAL, THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE A ND IN LAW, THE ORDER DATED 06.06.2019 PASSED BY LD. CIT (APPEA LS)-2, UDAIPUR IS PERVERSE, ARBITRARY AND BAD IN LAW. 2. THE LD. ASSESSING OFFICER AND ID. CIT(A) ERRED I N REJECTING THE INTEREST RS. 1,14,746/- AND BANK CHARGES RS. 57/- A S AGAINST ADDITIONAL INCOME/INTEREST OFFERED FOR TAX RS. 1,16 ,052/-, AS BOTH ERRORS WERE CLERICAL AND COMPENSATORY WHICH HA D BEEN RECTIFIED VOLUNTARILY WITHOUT ANY SEIZED DOCUMENT A ND NET EFFECT OF SUCH INCOME/INTEREST COMES TO RS. 1249/- OFFERED FOR TAX WHILE FILING ITR U/S 153A, THUS, INTEREST E XPENSES RS. 114746/- AND RS. 57/- DESERVES TO BE ALLOWED/NETTED OFF TOWARDS ADDITIONAL INCOME/INTEREST OFFERED FOR TAX. 5. THE APPELLANT CRAVES LEAVE TO ADD, AMEND AND MOD IFY ALL OR ANY GROUND OF APPEAL ON OR BEFORE THE DATE OF HEARI NG. 37. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND CA REFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AN D FOUND FROM THE RECORD THAT THE LOWER AUTHORITIES HAVE NOT ALLOWED 30 ITA 266 & 392/JODH/2019 SATYA NR. CHOUDHARY VS ACIT THE ASSESSEE TO CLAIM DEDUCTION OF INTEREST EXPENDI TURE BUT HAS INCLUDED THE INTEREST INCOME SO OFFERED BY THE ASSESSEE IN THE PROCEEDINGS U/S 153A. WE FOUND THAT THE ASSESSE E HAS JUST RECTIFIED THE APPARENT MISTAKE ON THE RECORD B Y OFFERING THE INTEREST INCOME AND INTEREST EXPENDITURE. ACCOR DINGLY, WE DIRECT THE A.O. TO MAKE ADDITION ONLY TO THE EXTENT OF MISTAKE SO POINTED OUT IN THE RECONCILIATION. 38. IN THIS REGARD, WE FOUND THAT DURING THE ASSESS MENT PROCEEDINGS, THE ASSESSEE PRODUCED DETAILED RECONCI LIATION OF THE RETURN FILED U/S 139 & U/S 153A WITH RELEVANT DOCUMENTARY EVIDENCES BEFORE THE A.O. VIDE LETTER SUBMITTED ON 20.08.2018. RECONCILI ATION OF BOTH THE RETURN FILED U/S 139 AND 153A FILED BEFORE THE ASSE SSING OFFICER IS ENCLOSED AT PB PAGE 14. FROM THE RECONCILIATION, WE OBSERVE THAT THE A.O. HAS ACCEPTED THE ADDITIONAL INTEREST INCOME OF FERED WITHOUT ANY SEIZED DOCUMENTS DURING THE COURSE OF SEARCH IN THE RETURN FILED U/S 153 A IN PARA 5 OF THE ASSESSMENT ORDER BUT NOT ALLOWED THE LEGITIMATE DEDUCTION TOWARDS INTEREST EXPENSES WRONGLY SHORT C LAIMED WHILE FILING ITR U/S 139. THE A.O. HAS REJECTED THE CLAIM OF INT EREST ON UNSECURED LOAN WITH CONTENTION IN PARA NO 5.3 AT PAGE NO 3 OF THE ORDER. 39. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, W E MODIFY THE ORDERS OF THE LOWER AUTHORITIES AND DIRECT THE A.O. TO RESTRICT ADDITION ONLY TO THE EXTENT OF DIFFERENCE BETWEEN THE 31 ITA 266 & 392/JODH/2019 SATYA NR. CHOUDHARY VS ACIT INTEREST INCOME OFFERED AND THE INTEREST EXPENSES C LAIMED. WE DIRECT ACCORDINGLY. 40. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D IN PART. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH MARCH, 2020. SD/- SD/- (SANDEEP GOSAIN) (R.C. SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 19/03/2020 *RANJAN COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR 6. GUARD FILE (ITA NO. 266 & 392/JODH/2019) ASSISTANT REGISTRAR JODHPUR BENCH
