SUBHASH SINGH, Jaipur V. AC, BHARATPUR

ITA 289/JPR/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4194 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2006-2007
• Appeal Filed On: 30-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J C KULHARI JCIT DHK
• Keywords: Salary income; Opportunity of being heard; Tangible material; Corroborative evidences; Reassessment proceedings
• Section: 143(3); 147; 131; 69; 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; ,OA JH FOE FLAG ;K NO ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM AND SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA-@ ITA NO. 289/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2006-07. SHRI SUBHASH SINGH OLD BAYANA BUS STAND, BHARTPUR. CUKE VS. THE ACIT, CIRCLE BHARATPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AHVPS 2318 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 290/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2006-07. M/S. FAUJDAR COLD STORAGE PVT. LTD., OLD BAYANA BUS STAND, BHARTPUR. CUKE VS. THE ACIT, CIRCLE BHARATPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AABCF 1359 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 560/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2006-07. SMT. VIMLESH FAUJDAR OLD BAYANA BUS STAND, BHARTPUR. CUKE VS. THE ACIT, CIRCLE BHARATPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAIPF 1488 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 561/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2006-07. SMT. SUSHMA SINGH OLD BAYANA BUS STAND, BHARTPUR. CUKE VS. THE ACIT, CIRCLE BHARATPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AHVPS 2207 F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT 2 ITA NOS. 289, 290, 560 TO 563/JP/2016 SHRI SUBHASH SINGH, BHARATPUR AND OTHERS. VK;DJ VIHY LA-@ ITA NO. 562/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2006-07. M/S. BHARATPUR COLD STORAGE PVT. LTD. OLD BAYANA BUS STAND, BHARATPUR. CUKE VS. THE ACIT, CIRCLE BHARATPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAACB 6921 A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 563/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2006-07. NATTHI SINGH HUF OLD BAYANA BUS STAND, BHARTPUR. CUKE VS. THE ACIT, CIRCLE BHARATPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAGHN 1726 A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI J.C. KULHARI (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 04.10.2018. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 31/10/2018. VKNS'K@ ORDER PER BENCH : THESE 6 APPEALS ARE DIRECTED AGAINST 6 SEPARATE ORD ERS OF THE LD. CIT (A) IN RESPECT OF THE CONNECTED ASSESSMENTS FRAMED BY THE AO UNDER SECTION 147 READ WITH SECTION 143(3) OF THE IT ACT FOR THE ASSESSMEN T YEAR 2006-07. SINCE THE SUBSTANTIVE ASSESSMENT AND ADDITION WAS MADE BY THE AO IN CASE OF SHRI SUBHASH SINGH IN ITA NO. 289/JP/2016 AND IN THE REMAINING C ASES ONLY PROTECTIVE ASSESSMENTS WERE FRAMED, THEREFORE, FOR THE PURPOSE OF RECORDING FACTS, THIS APPEAL 3 ITA NOS. 289, 290, 560 TO 563/JP/2016 SHRI SUBHASH SINGH, BHARATPUR AND OTHERS. IS TAKEN AS A LEAD CASE. THE GROUNDS RAISED IN THE APPEAL IN ITA NO. 289/JP/2016 ARE AS UNDER :- 1. THE LD. CIT (A) HAS ERRED ON FACTS AND IN LAW IN UPHOLDING THE VALIDITY OF THE ASSESSMENT MADE U/S 147 OF THE IT A CT, 1961. 2. THE LD. CIT (A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE FINDING OF AO THAT THE CASH OF RS. 51,27,435/- RECO VERED BY ACB, JAIPUR FROM HOUSE NO. 20/147-148, KAVERI PATH, MANSAROVER, JAIPUR OF SMT. SUSHMA SINGH AND RS. 70, 32,900/- RECOVERED FROM HOUSE NO. 11, KAVERIPURAM, DAYAL BAG H, AGRA OF SH. RAJVEER SINGH AGGREGATING TO RS. 1,21,60,335 /- BELONGS TO ASSESSEE. 2.1. THE LD. CIT (A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS. 1,21,60,335/- MADE BY AO BY TREATIN G THE SAID CASH AS UNEXPLAINED INCOME OF THE ASSESSEE U/S 69 O F THE IT ACT. HE HAS FURTHER ERRED IN CONFIRMING THE ADDITI ON WITHOUT CONSIDERING THE LEGAL CONTENTIONS RAISED AND EVIDEN CES FILED BY THE ASSESSEE BY SIMPLY REITERATING THE OBSERVATION OF DDIT (INV.)-I, JAIPUR REPRODUCED IN THE ASSESSMENT ORDER BY HOLDING THAT EVIDENCES RELIED BY ASSESSEE ARE SELF SERVING IN NATURE AND A RUSE TO CAMAFLOGUE THE REAL SOURCE OF CASH. 3. THE LD. CIT (A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION IN THE HANDS OF ASSESSEE AND ALSO CONFIRMI NG THE PROTECTIVE ADDITION IN HANDS OF PERSON WHO CLAIMED OWNERSHIP OF THE SAID CASH. 4. THE ASSESSEE CRAVES TO AMEND, ALTER AND MODIFY A NY OF THE GROUNDS OF APPEAL. 5. NECESSARY COST BE ALLOWED TO THE ASSESSEE. 2. THE ASSESSEE AT THE RELEVANT TIME WAS WORKING AS GENERAL MANAGER OF NATIONAL AGRICULTURAL CO-OPERATIVE MARKETING FEDERA TION OF INDIA LTD. (NAFED). THE ASSESSEES ONLY SOURCE OF INCOME WAS SALARY AND INT EREST FROM BANK, BONDS, CAPITAL 4 ITA NOS. 289, 290, 560 TO 563/JP/2016 SHRI SUBHASH SINGH, BHARATPUR AND OTHERS. GAIN. THERE WAS A SEARCH BY THE ANTI CORRUPTION BU REAU, JAIPUR ON 22 ND MAY, 2005 AT 3 (THREE) PREMISES BEING HOUSE NO. 20/147, KAVER I PATH, MANSAROVER, JAIPUR, HOUSE NO. 20/148, KAVERI PATH, MANSAROVER, JAIPUR A ND HOUSE NO. 11, KAVERIPURAM, DAYAL BAGH, AGRA. THESE THREE PREMISES ARE IN THE NAMES OF THE SISTER OF THE ASSESSEE, FATHER OF THE ASSESSEE AND BROTHER-IN-LAW OF THE ASSESSEE. HOWEVER, THE ASSESSEE WAS ALSO RESIDING IN THE PREMISES AT HOUSE NO. 20/148, KAVERI PATH, MANSAROVER, JAIPUR. AS PER THE SEIZURE MEMO PREPAR ED BY THE ANTI CORRUPTION BUREAU, JAIPUR, A CASH OF RS. 45,74,100/- WAS FOUND AT HOUSE NO. 20/147, KAVERI PATH, MANSAROVER, JAIPUR, CASH OF RS. 5,53,335/- WA S FOUND AT HOUSE NO. 20/148, KAVERI PATH, MANSAROVER, JAIPUR AND RS. 70,32,900/- WAS FOUND AT HOUSE NO. 11, KAVERIPURAM, DAYAL BAGH, AGRA. THE ACB RECORDED TH E STATEMENTS OF VARIOUS PERSONS INCLUDING THE ASSESSEE. CONSEQUENTLY, THE DIT INVESTIGATION ALSO TAKEN UP THE CASE OF TAX EVASION ON ACCOUNT OF THE SEIZURE O F CASH OF MORE THAN RS. 1.21 CRORES BY THE ACB AND ISSUED SUMMON TO THE ASSESSEE UNDER SECTION 131 ON 15.12.2008. THE STATEMENT OF THE ASSESSEE WAS RECO RDED ON 7 TH FEBRUARY, 2009 WHEREIN THE ASSESSEE HAS DENIED THE ALLEGATIONS OF SEIZURE OF CASH AND SUBMITTED THAT HE HAS NOTHING TO DO WITH THE SAID CASH AS IT WAS FOUND FROM THE RELATIVES OF THE ASSESSEE AND BELONG TO THEM. THE DIT INVESTIGATION HAS ALSO OBTAINED THE RELEVANT DOCUMENTS AND REPORT OF THE ACB JAIPUR. CONSEQUENTL Y, THE DIT INVESTIGATION HAS PREPARED THE REPORT ON 28 TH MARCH, 2011 WHICH WAS SENT TO THE AO FOR NECESSARY ACTION. THE AO CONSEQUENTLY REOPENED THE ASSESSMEN TS OF ALL THESE PERSONS. IN THE REASSESSMENT, THE AO HAS MADE THE ADDITION ON SUBST ANTIVE BASIS OF THE SAID AMOUNT OF RS. 1,21,60,335/- IN THE HANDS OF THE ASS ESSEE AND PROTECTIVE 5 ITA NOS. 289, 290, 560 TO 563/JP/2016 SHRI SUBHASH SINGH, BHARATPUR AND OTHERS. ASSESSMENTS WERE MADE IN THE HANDS OF THE OTHER FIV E PERSONS. THE ORDER OF THE AO WAS CHALLENGED BEFORE THE LD. CIT (A). THE LD. CIT (A) HAS CONFIRMED THE ADDITION MADE IN THE HANDS OF SHRI SUBHASH SINGH ON SUBSTANT IVE BASIS AND PROTECTIVE ASSESSMENTS FRAMED IN THE NAME OF THE OTHER FIVE PE RSONS. 3. BEFORE US, THE ASSESSEE HAS RAISED VARIOUS OBJEC TIONS INCLUDING THE VALIDITY OF REOPENING OF THE ASSESSMENT UNDER SECTION 147/148 O F THE IT ACT. THE MAIN THRUST OF THE CONTENTION OF THE LD. A/R ON THE ISSUE OF VA LIDITY OF REOPENING IS THAT THE AO HAS REOPENED THE ASSESSMENT ONLY ON THE BASIS OF TH E INFORMATION RECEIVED FROM ADIT/JCIT RANGE BHARATPUR WITHOUT CONDUCTING ANY VE RIFICATION OR ENQUIRY ON HIS OWN TO HAVE THE REASONS TO BELIEVE THAT INCOME OF T HE ASSESSEE HAS ESCAPED ASSESSMENT. THE LD. A/R HAS REFERRED TO THE REASON S RECORDED FOR REOPENING OF THE ASSESSMENT AND SUBMITTED THAT THOUGH THE AO HAS MEN TIONED IN THE REASONS THAT ENQUIRIES WERE MADE AT HIS END BUT NOWHERE IN THE A SSESSMENT ORDER THERE IS ANY DISCUSSION AS TO WHAT ENQUIRY WAS CONDUCTED BY THE AO BEFORE RECORDING THE REASONS FOR REOPENING. THUS THE LD. A/R HAS SUBMIT TED THAT REASONS RECORDED BY THE AO ARE INCONSISTENCE WITH THE ACTUAL FACTS AND, IN FACT, THE AO HAS ONLY GONE BY THE REPORT OF THE DDIT INVESTIGATION, JAIPUR WITHOUT AP PLYING HIS OWN MIND. THUS IT IS EVIDENT THAT THE AO HAS NOT MADE ANY ENQUIRY ON HIS OWN TO HAVE REASONS TO BELIEVE THAT INCOME OF THE ASSESSEE HAS ESCAPED ASSESSMENT, THEREFORE, THE REOPENING OF THE ASSESSMENT MADE ON THE BASIS OF BORROWED SATISF ACTION OR AT THE DICTUM OF THE HIGHER AUTHORITIES IS ILLEGAL AND BAD IN LAW. IN S UPPORT OF HIS CONTENTION, HE HAS RELIED UPON THE DECISION OF THE HONBLE SUPREME COU RT IN THE CASE OF CIT VS. GREENWORLD CORPORATION, 314 ITR 81 (SC) AND SUBMITT ED THAT THE HONBLE SUPREME 6 ITA NOS. 289, 290, 560 TO 563/JP/2016 SHRI SUBHASH SINGH, BHARATPUR AND OTHERS. COURT HAS HELD THAT BY NO STRETCH OF IMAGINATION A HIGHER AUTHORITY CAN INTERFERE WITH THE INDEPENDENCE OF THE ASSESSING AUTHORITY WHICH I S THE BASIC FEATURE OF ANY STATUTORY SCHEME INVOLVING ADJUDICATORY PROCESS. T HE LD. A/R HAS ALSO RELIED UPON THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE O F CIT VS. SHREE RAJASTHAN SYNTEX LTD., 313 ITR 231 (RAJ.) AS WELL AS IN THE CASE OF CIT VS. SMT. SOHAN DEVI SODANI, 303 ITR 342 (RAJ.). THUS THE LD. A/R HAS SUBMITTED THAT REOPENING OF THE ASSESSMENT IS NOT VALID AND LIABLE TO BE QUASHED. 4. ON THE OTHER HAND, THE LD. D/R HAS SUBMITTED THA T IT IS NOT THE CASE OF REOPENING OF THE ASSESSMENT MERELY ON THE BASIS OF REPORT OF THE INVESTIGATION WING AS A RESULT OF INVESTIGATION CARRIED OUT AT A THIRD PARTY BUT THE INVESTIGATION WAS DONE FIRST BY THE ACB, JAIPUR AND THEREAFTER BY THE INVE STIGATION WING OF THE DEPARTMENT IN THE CASE OF THE ASSESSEE HIMSELF. VARIOUS DOCUM ENTS, THE CASH OF RS. 1,21,60,335/- SEIZED BY THE ACB AS WELL AS THE STAT EMENTS OF THE ASSESSEE AND OTHER RELATIVES RECORDED BY THE INVESTIGATION WING CONSTI TUTE A TANGIBLE MATERIAL TO FORM THE BELIEF THAT THE INCOME ASSESSABLE TO TAX HAS ES CAPED ASSESSMENT. HE HAS RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THERE IS NO DISPUTE THAT THERE WAS A SEARC H BY THE ACB JAIPUR ON 22 ND MAY, 2005 AT THE VARIOUS PREMISES BELONGING TO THE ASSES SEE AND HIS RELATIVES. THOUGH THE PREMISES HOUSE NO. 20/147 KAVERI PATH, MANSAROV ER, JAIPUR AND HOUSE NO. 20/148, KAVERI PATH, MANSAROVER, JAIPUR ARE IN THE NAMES OF THE FATHER OF THE ASSESSEE AND SISTER OF THE ASSESSEE, HOWEVER, THE A SSESSEE WAS ALSO RESIDING ALONG WITH HIS FATHER AT PREMISES HOUSE NO. 20/148, KAVER I PATH, MANSAROVER, JAIPUR. 7 ITA NOS. 289, 290, 560 TO 563/JP/2016 SHRI SUBHASH SINGH, BHARATPUR AND OTHERS. THEREFORE, AT LEAST THE CASH FOUND AT THE PREMISES WHERE THE ASSESSEE WAS RESIDING PRIMA FACIE CONSTITUTE A TANGIBLE MATERIAL WHICH HA S A DIRECT NEXUS TO THE BELIEF THAT THE INCOME ASSESSABLE TO TAX HAS ESCAPED ASSESSMENT . IT IS NOT A SIMPLE CASE OF REPORT OF ADIT BUT THE CASH OF MORE THAN RS. 1.21 C RORES WAS FOUND AT THE VARIOUS PREMISES AND MORE THAN RS. 50,00,000/- WAS FOUND AT THE PREMISES WHERE THE ASSESSEE WAS ALSO RESIDING. THEREFORE, THE REPORT OF THE ACB JAIPUR COUPLED WITH THE INVESTIGATIONS CARRIED OUT BY THE ADIT OF THE REVEN UE DEPARTMENT, CONSTITUTE A TANGIBLE MATERIAL TO FORM A REASONABLE BELIEF THAT THE INCOME ASSESSABLE TO TAX HAS ESCAPED ASSESSMENT. IT IS PERTINENT TO NOTE THAT T HE ASSESSEE WAS A GENERAL MANAGER WORKING IN THE NATIONAL AGRICULTURAL CO-OPE RATIVE MARKETING FEDERATION OF INDIA LTD. AND THE ONLY KNOWN SOURCE OF INCOME OF T HE ASSESSEE WAS SALARY INCOME AND, THEREFORE, RECOVERY OF HUGE AMOUNT OF MORE THA N RS. 50,00,000/- FROM THE PREMISES AT JAIPUR ALONG WITH THE SEIZURE REPORT/ME MO PREPARED BY THE ACB PRIMA FACIE SUFFICIENT TO FORM A REASONABLE BELIEF THAT T HE INCOME ASSESSABLE TO TAX HAS ESCAPED ASSESSMENT. THE LD. CIT (A) HAS CONSIDERED THIS ISSUE IN PARA 4.4 TO 4.7 AS UNDER :- 4.5. I HAVE PERUSED THE ASSESSMENT ORDER AS WELL AS REMAND REPORT OF THE AO, SUBMISSIONS MADE INCLUDING JUDICIAL CITA TIONS AND CROSS REPLY OF THE APPELLANT AND FIND THAT AO HAD ISSUED NOTICE TO THE APPELLANT BEFORE INITIATING REASSESSMENT PROCEEDINGS. RE-ASSE SSMENT PROCEEDINGS WERE STARTED ON THE BASIS OF MATERIAL A VAILABLE ON RECORD. I FIND THAT AO HAD ISSUED THE NOTICE U/S 148 BASED ON THE MATERIAL FOUND DURING THE COURSE OF SEARCH CONDUCTED BY THE ACB AND DISCREPANCIES NOTICED IN THE INCOME DECLARED BY THE APPELLANT. THE AO 8 ITA NOS. 289, 290, 560 TO 563/JP/2016 SHRI SUBHASH SINGH, BHARATPUR AND OTHERS. HAS GIVEN REASONABLE OPPORTUNITY OF BEING HEARD TO THE APPELLANT BEFORE INITIATING THE RE-ASSESSMENT PROCEEDINGS. TH E AO HAS DISCHARGED THE DUTY WHICH LAY UPON HIM BEFORE INITI ATING THE REASSESSMENT PROCEEDINGS. 4.6. HOWEVER, THE CASE LAWS RELIED UPON BY THE APPE LLANT DOES NOT HAVE APPLICABILITY TO THE FACTS OF THE PRESENT CASE . THE FUNCTION OF THE ASSESSING OFFICER IS TO ADMINISTER THE STATUTE WITH SOLICITUDE FOR THE PUBLIC EXCHEQUER WITH AN IN-BUILT IDEA OF FAIRNESS TO TAXPAYER (ASST. CIT V. RAJESH JHAVERI STOCK BROKERS (P) LTD. (2007) 291 ITR 500 (SC). IN DETERMINING WHETHER COMMENCEMENT OF REASSESSMENT PR OCEEDINGS IS VALID, THE COURT HAS ONLY TO SEE WHETHER THERE IS P RIMA FACIE SOME MATERIAL ON THE BASIS OF WHICH THE DEPARTMENT OPENE D THE CASE. THE SUFFICIENCY OR CORRECTNESS OF THE MATERIAL IS NOT A THING TO BE CONSIDERED AT THIS STAGE AS HELD BY THE SUPREME COU RT IN THE CASE OF RAYMOND WOOLLEN MILLS LTD. V. ITO (1999) 236 ITR 34 (SC), GREAT ARTS (P) LTD. V. ITO (2002) 257 ITR 639 (DELHI). THE AS SESSEE CANNOT CHALLENGE SUFFICIENCY OF BELIEF- ITO V. LAKHMANI ME WAL DAS (1976) 103 ITR 437 (SC). 4.7. THUS, IN VIEW OF THESE FACTS, I HOLD THAT AO H AD RIGHTLY INITIATED THE PROCEEDINGS U/S 147/148 OF THE IT ACT. HENCE, IN VIEW OF THE ABOVE DISCUSSION, WE DO NOT F IND ANY REASON TO INTERFERE WITH THE IMPUGNED ORDER OF THE LD. CIT (A), QUA THIS ISS UE. 6. ON MERITS OF THE ADDITION, THE LD. A/R OF THE AS SESSEE HAS SUBMITTED THAT THE ADDITION WAS MADE ON THE BASIS OF A ACB REPORT AND NOT ON THE BASIS OF ANY MATERIAL TO ESTABLISH THAT THE CASH FOUND DURING TH E SEARCH BELONGS TO THE ASSESSEE. HE HAS REFERRED TO THE STATEMENTS OF THE VARIOUS PE RSONS RECORDED BY THE ACB AS WELL AS BY THE INVESTIGATION WING OF THE REVENUE DE PARTMENT WHEREIN IT WAS 9 ITA NOS. 289, 290, 560 TO 563/JP/2016 SHRI SUBHASH SINGH, BHARATPUR AND OTHERS. EXPLAINED BY EACH OF THE PERSONS THE SOURCE OF THE CASH FOUND WITH THEM AT THE TIME OF SEARCH. THEREFORE, EXCEPT THE REPORT OF THE ACB AS WELL AS THE REPORT OF THE INVESTIGATION WING, THERE WAS NO OTHER EVIDENCE WIT H THE AO TO ESTABLISH THAT THE CASH FOUND DURING THE SEARCH BELONGS TO THE ASSESSE E AND FURTHER EACH AND EVERY PENNY FOUND DURING THE SEARCH WAS EXPLAINED WITH TH E SUPPORTING EVIDENCE. THE LD. A/R HAS REFERRED TO THE STATEMENTS OF THESE PERSONS AS WELL AS THE EVIDENCE TO SHOW THAT THE SOURCE OF THE CASH FOUND DURING THE SEARCH WAS DULY EXPLAINED BY THESE PERSONS. FURTHER, HE HAS SUBMITTED THAT ONCE THESE PERSONS HAVE ACCEPTED THE CASH BELONGING TO THEM AND ALSO EXPLAINED THE SOURCE, TH EN THERE WAS NO BASIS TO TREAT THE SAID CASH BELONGS TO THE ASSESSEE. THE ASSESSM ENT WAS ALSO COMPLETED IN CASE OF THOSE PERSONS AND THE AO HAS ACCEPTED THE SOURCE EXPLAINED BY THOSE PERSONS. EVEN IN CASE OF THE CASH FOUND AT THE PREMISES HOUS E NO. 11, KAVERIPURAM, DAYAL BAGH, AGRA, THE BROTHER-IN-LAW OF THE ASSESSEE HAS EXPLAINED THE CASH BELONG TO THE BUSINESS ENTITIES AND IT WAS ALSO RECORDED IN THE B OOKS OF BUSINESS ENTITIES. HE HAS REFERRED TO THE ASSESSMENT ORDERS OF THE BUSINESS E NTITIES WHEREIN THE SAID CASH WAS DULY RECORDED IN THE BOOKS OF ACCOUNT AND THE AO HA S ACCEPTED THE SAID CASH IN THE BOOKS OF THOSE ENTITIES. THUS ONCE THE AO HAS ACCE PTED THE SOURCE OF CASH FOUND DURING THE SEARCH AS BELONG TO VARIOUS BUSINESS ENT ITIES, THEN THE SAME CASH CANNOT BE TREATED AS UNDISCLOSED INCOME OF THE ASSESSEE. AS THE LD. A/R HAS SUBMITTED THAT THE AO HAS FRAMED THE ASSESSMENT ON THE BASIS OF TH E REPORT OF THE INVESTIGATION WING WITHOUT CARRYING ON ANY INDEPENDENT ENQUIRY OR INVESTIGATION DURING THE ASSESSMENT PROCEEDINGS, THEREFORE, THE ORDER FRAMED BY THE AO AND ADDITION MADE IN THE HANDS OF THE ASSESSEE IS NOT SUSTAINABLE IN LAW WHEN THE AO HAS NOT BROUGHT 10 ITA NOS. 289, 290, 560 TO 563/JP/2016 SHRI SUBHASH SINGH, BHARATPUR AND OTHERS. ON RECORD ANY FACT OR EVIDENCE TO PROVE THAT THE CA SH BELONGS TO THE ASSESSEE AND IT IS AN UNDISCLOSED INCOME OF THE ASSESSEE. HE HAS R EFERRED TO THE ASSESSMENT ORDER IN CASE OF M/S. KAVERI COLD STORAGE & ICE FACTORY, WHICH IS A PARTNERSHIP FIRM AND SHRI RAJVEER SINGH, THE BROTHER-IN-LAW OF THE ASSES SEE IS THE PARTNER IN THE SAID FIRM AND EXPLAINED THE SOURCE OF THE CASH FOUND AT HOUSE NO. 11, KAVERIPURAM, DAYAL BAGH, AGRA BEING THE CASH BELONGING TO THE SAID PAR TNERSHIP FIRM. THE AO WHILE COMPLETING THE ASSESSMENT IN CASE OF M/S. KAVERI CO LD STORAGE & ICE FACTORY, HAS ACCEPTED THAT THE CASH OF RS. 70,32,900/- PERTAINS TO THE PARTNERSHIP FIRM AND NO ADDITION WAS MADE IN THE HANDS OF THE SAID PARTNERS HIP FIRM. HENCE, THE LD. A/R HAS SUBMITTED THAT THE ADDITION MADE IS WITHOUT ANY EVI DENCE AND BASED ON THE REPORT OF THE INVESTIGATION WING IS NOT SUSTAINABLE. 7. ON THE OTHER HAND, THE LD. D/R HAS RELIED UPON T HE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT IN THE REPORT OF THE ACB, THE FACT WAS CLEARLY ESTABLISHED THAT THE CASH WERE FOUND FROM THE VARIOUS BAGS AND SUITCASES WHICH WERE OPENED ONLY TAKING THE LOCKING CODE FROM THE ASSESSEE WHIC H SHOWS THAT ENTIRE CASH FOUND DURING THE SEARCH BELONGS TO THE ASSESSEE THOUGH IT WAS KEPT AT DIFFERENT PLACES. HE HAS FURTHER CONTENDED THAT THE LD. CIT (A) HAS EXAM INED THIS ISSUE AFTER CONSIDERING THE REMAND REPORT OF THE AO AND, THEREFORE, THERE I S A FINDING BASED ON THE RELEVANT FACTS AND EVIDENCE THAT THE CASH OF RS. 1,21,60,335 /- FOUND DURING THE SEARCH BY THE ACB JAIPUR BELONGS TO THE ASSESSEE AND IT WAS AN UN DISCLOSED INCOME OF THE ASSESSEE. 11 ITA NOS. 289, 290, 560 TO 563/JP/2016 SHRI SUBHASH SINGH, BHARATPUR AND OTHERS. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THE REASSESSMENT PROCEEDINGS WERE INITIATE D BY THE AO ON THE BASIS OF REPORT OF THE INVESTIGATION WING. HOWEVER, IN THE A SSESSMENT PROCEEDINGS, THE AO HAS REFERRED ONLY THE REPORT OF THE INVESTIGATION W ING AND NO SEPARATE ENQUIRY OR INVESTIGATION WAS CONDUCTED BY THE AO DURING THE AS SESSMENT PROCEEDINGS. THE AO HAS ONLY REFERRED TO THE REPORT OF THE INVESTIGATIO N WING WHICH IN TURN IS BASED ON THE SEARCH MEMO OF ACB, JAIPUR WHEREIN ALL THE FACT S WERE NARRATED AS HOW THE CASH WAS FOUND DURING THE SEARCH CONDUCTED BY THE ACB JA IPUR ON 22 ND MAY, 2005. WE HAVE GONE THROUGH THE ENTIRE ASSESSMENT ORDER RUNNI NG INTO 15 PAGES. THE AO HAS REPRODUCED THE REPORT OF THE INVESTIGATION WING WHI CH IN TURN REFERS TO THE SEARCH MEMO OF THE ACB AND THE FINDING OF THE AO IS ONLY A T PAGE 15 AS UNDER :- THUS, IN VIEW OF THE ABOVE FACTS THE TOTAL SEIZED AMOUNT OF RS. 1,21,60,335/- IS UNEXPLAINED IN TERM OF SECTION 69 OF THE I.T. ACT. THEREFORE, SAME IS ADDED TO THE TOTAL INCOME OF THE ASSESSEE ON SUBSTANTIVE BASIS. THUS IT IS CLEAR THAT THE AO HAS NEITHER CONDUCTED ANY ENQUIRY NOR BROUGHT ANY OTHER EVIDENCE OR MATERIAL ON RECORD TO PROVE THAT THE CA SH FOUND BY THE ACB FROM THESE THREE PREMISES BELONGS TO THE ASSESSEE AND IT WAS A N UNDISCLOSED INCOME OF THE ASSESSEE. THE AO HAS REPRODUCED THE SAID INFORMATI ON RECEIVED FROM THE INVESTIGATION WING IN 14 PAGES AND THEREAFTER HAS A DDED THE SAID AMOUNT OF RS. 1,21,60,335/-. IT IS A SETTLED PROPOSITION OF LAW THAT THE ASSESSMENT ORDER FRAMED 12 ITA NOS. 289, 290, 560 TO 563/JP/2016 SHRI SUBHASH SINGH, BHARATPUR AND OTHERS. ON THE BASIS OF THE REPORT OF THE INVESTIGATION WIN G WITHOUT CONDUCTING AN INDEPENDENT ENQUIRY BY THE AO LACKS THE SUPPORTING EVIDENCE TO SUBSTANTIATE THE DECISION OF THE AO. THOUGH THE AO HAS NOT CONDUCTE D ANY ENQUIRY DURING THE ASSESSMENT PROCEEDINGS, HOWEVER, THE FACTS REMAIN T HAT A CASH OF RS. 1,21,60,335/- WAS FOUND DURING THE SEARCH CONDUCTED BY THE ACB JA IPUR AND SINCE THIS FACT IS NOT IN DISPUTE, THEREFORE, THE QUESTION WHETHER THE SAI D CASH IS AN UNDISCLOSED INCOME OF THE ASSESSEE WAS REQUIRED TO BE EXAMINED ON THE BA SIS OF AN INDEPENDENT ENQUIRY TO BE CONDUCTED BY THE AO. THE REPORT OF THE ACB T HOUGH IS A RELEVANT MATERIAL EVIDENCE, HOWEVER, SINCE THE SAID REPORT IS ONLY A REPORT AND NOT A DECISION AS THE SAME IS SUBJECTED TO SCRUTINY OF THE COURT OF LAW I N THE TRIAL WHICH IS YET TO BE CONDUCTED AND, THEREFORE, UNTIL AND UNLESS THE FATE OF THE REPORT OF THE ACB IS DECIDED BY THE COURT OF LAW, THE SAID REPORT CANNOT BE THE SOLE BASIS OF THE ASSESSMENT FRAMED BY THE AO. WE FURTHER NOTE THAT THE REPORT OF THE INVESTIGATION WING HAS NOT BROUGHT ANY NEW FACT BUT IT IS JUST RE PRODUCTION OF THE FACTS AS RECORDED BY THE ACB IN THE SEARCH MEMO. THUS THE R EPORT OF THE ACB HAS TO BE TESTED THE SCRUTINY OF THE COURT OF LAW IN THE TRIA L AND, THEREFORE, THE SAID REPORT CAN BE RELEVANT MATERIAL BUT CANNOT BE A SOLE BASIS FOR ASSESSMENT. ACCORDINGLY, WE ARE OF THE CONSIDERED VIEW THAT THE AO HAS NOT CONDUCTE D A PROPER ENQUIRY IN THIS MATTER AS NO INDEPENDENT EXAMINATION OR INVESTIGATI ON WAS CARRIED OUT BY THE AO PRIOR TO THE COMPLETION OF THE REASSESSMENT. HENC E, WE SET ASIDE THIS MATTER TO THE RECORD OF THE AO FOR DENOVO ASSESSMENT AFTER CONDUC TING A PROPER ENQUIRY AND INVESTIGATION AND ALLOWING A PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. 13 ITA NOS. 289, 290, 560 TO 563/JP/2016 SHRI SUBHASH SINGH, BHARATPUR AND OTHERS. ITA NOS. 290 & 560 TO 563/JP/2016. 9. IN THESE CASES THE AO HAS MADE THE ASSESSMENTS O N PROTECTIVE BASIS OF THE RESPECTIVE AMOUNTS FOUND FROM THE POSSESSION OF THO SE PERSONS. SINCE THESE ASSESSMENTS MADE ON PROTECTIVE BASIS ARE CONSEQUENT IAL TO THE ASSESSMENT FRAMED ON SUBSTANTIVE BASIS IN THE HANDS OF SHRI SUBHASH S INGH, THEREFORE, IN VIEW OF THE FACT THAT THE MATTER IN CASE OF SHRI SUBHASH SINGH IS SET ASIDE TO THE RECORD OF THE AO, THE ASSESSMENTS FRAMED ON PROTECTIVE BASIS IN T HE HANDS OF THESE FIVE PERSONS ARE ALSO SET ASIDE TO THE RECORD OF THE AO ON THE S AME TERMS AS IN THE CASE OF SHRI SUBHASH SINGH. 10. IN THE RESULT, APPEALS ARE ALLOWED FOR STATISTI CAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 31/10/20 18. SD/- SD/- ( FOE FLAG ;KNO ) ( FOT; IKY JKWO (VIKRAM SINGH YADAV ) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 31/10/2018. DAS/ 14 ITA NOS. 289, 290, 560 TO 563/JP/2016 SHRI SUBHASH SINGH, BHARATPUR AND OTHERS. VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI SUBHASH SINGH, BHARATPUR, M/S. FAUJDAR COLD STORAGE PVT. LTD., BHARATPUR, SMT. VIMLESH FAUJDAR, BHARATPUR, S MT. SUSHMA SINGH, BHARATPUR, M/S. BHARATPUR COLD STORAGE PVT. LTD., B HARATPUR AND SHRI NATTHI SINGH HUF, BHARATPUR. 2. THE RESPONDENT THE ACIT, CIRCLE BHARATPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NOS. 289, 290, 560, 561, 562 & 5 63/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 15 ITA NOS. 289, 290, 560 TO 563/JP/2016 SHRI SUBHASH SINGH, BHARATPUR AND OTHERS.