Pawan Kumar Jain , Hanumangarh V. Pr. CIT-1, Jodhpur

ITA 30/JODH/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 7283 (ITAT-JODHPUR)
• Duration Of Justice: 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2016-2017
• Appeal Filed On: 28-04-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANCHITA KUMAR
• Keywords: Unexplained investment; Revision of order
• Section: 69; 263; 143(3); 142(1); 133A; 43; 13; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, JODHPUR BENCH , JODHPUR BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SING H YADAV, AM ITA. NO. 30/JODH/2021 ASSESSMENT YEAR : 2016-17 SHRI PAWAN KUMAR JAIN NAVKAR TRADER, SANGARIA, HANUMANGARH. VS. THE PR. CIT-1, JODHPUR. PAN/GIR NO.: A BKPJ1006E APPELLANT RESPONDENT ASSESSEE BY : SHRI RAJENDRA JAIN (C.A.), SMT RAKSHA BIRLA (C.A.) & SHRI MOHIT SONI (ADV.) REVENUE BY : SMT. SANCHITA KUMAR (CIT) A DATE OF HEARING : 11/08/2021 DATE OF PRONOUNCEMENT : 07/09/2021 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS APPEAL FILED BY THE ASSESSEE AGAINST THE O RDER OF LD. PR.CIT-1, JODHPUR PASSED U/S 263 DATED 23.03.2021 P ERTAINING TO ASSESSMENT YEAR 2016-17. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SEE HAS FILED HIS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION D ECLARING TOTAL INCOME OF RS. 48,99,245/-AND THE ASSESSMENT WAS COMPLETED U/S 143(3) AT TOTAL INCOME OF RS. 50,05,320/-. SUBSEQUENT, A SHOW -CAUSE WAS ISSUED BY THE LD PCIT U/S 263 AND THE IMPUGNED ORDER WAS P ASSED HOLDING THE ITA NO. 30/JODH/2021 SHRI PAWAN KUMAR JAIN VS. PR. CIT 2 ASSESSMENT ORDER AS ERRONEOUS IN SO FAR AS PREJUDIC IAL TO THE INTEREST OF REVENUE AND SETTING ASIDE THE SAME TO CONSIDER THE ISSUES RAISED IN THE IMPUGNED ORDER AFRESH AFTER MAKING PROPER ENQUIRIES AND VERIFICATION. AGAINST THE SAID ORDER AND FINDINGS OF THE LD PCIT, THE ASSESSEE IS IN APPEAL BEFORE US. 3. THE LD. AR SUBMITTED THAT DURING THE YEAR UNDER CONSIDERATION, SURVEY PROCEEDINGS WERE CARRIED OUT ON 30.11.2015, AND DURING THE COURSE OF THE SURVEY PROCEEDINGS ON THE BASIS OF CE RTAIN DOCUMENTS AND DETAILS FOUND, IT WAS OBSERVED THAT THERE IS IN COME OF RS. 43,00,935/- WHICH HAD NOT BEEN REFLECTED AND THE SA ME WAS ACCEPTED TO BE INCLUDED IN ASSESSEES INCOME. THE ASSESSEE W HILE FILING THE RETURN OF INCOME DULY INCLUDED THE SAID AMOUNT OF R S. 43,00,935/- IN THE RETURN AND PAID DUE TAXES THEREON. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE LD. AO HAS EXAMINED THE ISSUE ON VARIOUS ASPECTS INCLUDING THE LEGAL POSITION AS WELL AS THE FACTUAL POSITION OF THE CASE AND AFTER COMPLETE VERIFICATION OF THE FACT TH E ASSESSMENT ORDER WAS MADE. 4. IT WAS SUBMITTED THAT IN THE NOTICE U/S 263, THE LD PCIT OBSERVED THAT PROPER INQUIRIES AND VERIFICATION WERE NOT MAD E ON FOLLOWING TWO ISSUES: A) THAT DURING SURVEY INCOME SURRENDERED FOR ADVAN CES GIVEN WAS RS. 43,00,935/- WHICH INCLUDED ADVANCES GIVEN OUT O F BOOKS TO TWO PERSONS. IT IS OBSERVED THAT ADVANCES TO TWO PERSON S DURING THREE FINANCIAL YEARS WAS RS. 21,63,310/- AND RS. 16,26,4 05/- AGAINST WHICH SURRENDER WAS MADE AT RS. 8,00,000/- AND RS. 9,00,0 00/-RESPECTIVELY. ITA NO. 30/JODH/2021 SHRI PAWAN KUMAR JAIN VS. PR. CIT 3 B) THE SECOND ISSUE POINTED OUT IS THAT AN AGREEMEN T FOR PURPOSE OF PROPERTY FOR RS. 60,00,000/- WAS FOUND AGAINST WHIC H RS. 36,00,000/- WAS PAID ON 27.11.2015 AND BALANCE WAS TO BE PAID O N 30.4.2016 WHICH WAS NOT VERIFIED. 5. IT WAS SUBMITTED THAT EVEN DURING THE COURSE OF SURVEY, DETAILED EXAMINATION OF THESE DOCUMENTS WAS MADE WHICH WAS A LSO VERIFIED AT THE TIME OF ASSESSMENT PROCEEDINGS, AND INCOME TAKE N WAS MORE THAN THE INCOME WHICH WAS DETERMINED ON THE BASIS OF THE SE DOCUMENTS. FURTHER THERE WAS NO INCOME EMBEDDED IN THESE DOCUMENTS BUT SINCE THE INCOME WAS ACCEPTED DURING THE COURSE OF SURVEY PROCEEDINGS, THE SAID INCOME WAS DULY INC LUDED AND TAX WAS PAID BY THE ASSESSEE. 6. THE LD AR REFERRED TO THE STATEMENTS OF THE ASSE SSEE RECORDED ON 1.12.2015 DURING SURVEY PROCEEDINGS AND IN REPLY TO QUESTION NO. 4, IT WAS STATED AS UNDER:- IZ'U& LOSZ DK;ZOKGH DS NKSJKU TCR NLRKOSTKSA DS VUQ YAXUD CH&3 TKS FD ,D IKWDSV MK;JH GS] FTLESA IZFKE FYF[KR IST IJ JH GSEJ KT T;K.KH IQ= JH TUUWJKE] XKAO CKHJ VAFDR GS RFKK VUNJ DS I`'BKSA I J :I;KSA DS YSU NSU LACA/KH DQN FGLKC FY[KK GS RFKK FTLES CKJS ESA VKIL S LOSZ DK;ZOKGH DS NKSJKU NTZ C;KUKSA ESA IZU LA-39 ESA IWNK X;K FKK R FKK RC VKIUS MRRJ ESA ;G LR;KFIR FD;K FKK FD MDR O;FDR DS LKFK GQ, YSU NS U VKIDH CFG;KSA ESA NTZ UGH GS RFKK ;G MK;JH VKIDS }KJK RS; KJ DH XBZ RFKK VKIDS O;OLK; LS GH LACAF/KR GSA D`I;K BL MK;JH ESA NTZ IZFOF'V;KSA DS CKJS ESA LI'VHDJ.K NSOSAA MRRJ& ESA IQU% LOHDKJ DJRK GWWA FD MDR MK;JH ESA V AFDR IZFOF'V;KA GEKJS }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`'BKSA I J :I;KSA DS YSU NSU LACA/KH DQN FGLKC FY[KK GS RFKK FTLDS CKJS ESA VKILS LOSZ DK;ZOKGH DS NKSJKU NTZ C;KUKSA ESA IZU LA-39 ESA IWNK X;K FK K RFKK RC VKIUS MRJ ESA ;G LR;KFIR FD;K FKK FD MDR O;FDR DS LKFK GQ, YS U NSU VKIDH CFG;KSA ESA NTZ UGH GS RFKK ;G MK;JH VKIDS }KJK RS; KJ DH XBZ RFKK VKIDS O;OLK; LS GH LACAF/KR GS D`I;K BL MK;JH ESA N TZ IZFOF'V;KSA DS CKJS ESA LI'VHDJ.K NSOSA MRRJ ESA IQU% LOHDKJ DJRK GWWA FD MDR MK;JH ESA VAF DR IZFOF'V;KSA GEKJS }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`I;K BLDK LI'VHDJ.K NSOS RFKK LACAF/K R CFG;KSA LS LR;KIU DJKOSAA MRRJ ;G DKXT ESJH IZKSIJKBZVJFKI QEZ ESA- UODKJ V SMLZ LS LACAF/KR GS] BLESA RHU YKSXKSA DKS M/KKJ FN;S X;S :I;KSA DK FOOJ.K NTZ GS] TKS FD ESJH QEZ DH FU;FER CGH [KKRKSA ESA NTZ UGH GS VKSJ ;G JKFK VHKH HKH YSUH CDK;K GSAVR% ESA VIUH EKUFLD 'KKAFR ,OE~ FOOKN LS CPUS DS FY, MDR JKFK :I;S 18]00]000@& DKS VIUH IZKSIJKBZVJFKI QEZ ESA U ODKJ VSMLZ DH FU/KKZJ.K O'KZ 2016&17 DH FU;FER VK; DS VFRFJDR DJK JKSI.K GSRQ LEFIZR DJ JGK GWWAA 7. IT WAS FURTHER SUBMITTED THAT IN THE ASSESSMENT ORDER, THE NATURE OF BUSINESS OF THE ASSESSEE IS BEING MENTION ED. THE ASSESSEE IS PROPRIETOR IN M/S NAVKAR TRADERS, DHAN MANDI, SANGARIA AND THE MAIN SOURCE OF INCOME IS COMMISSIO N INCOME FROM TRADING OF AGRICULTURE COMMODITIES. THE FARMER S AND PRODUCERS BRING THEIR AGRICULTURE PRODUCE TO THE AS SESSEE WHICH IS BEING SOLD BY THE ASSESSEE. THE SALE OF SUCH AGRICU LTURE PRODUCE IS MAINLY MADE ON COMMISSION BASIS AND SOMETIMES THE P RICE OF THE PRODUCE IS FIXED, AND THE FARMERS TAKE THE MONEY IN INSTALLMENTS AS AND WHEN THE GOODS ARE BEING SOLD. THE DETAILS OF P AYMENTS MADE TO THEM ARE BEING RECORDED IN THESE DIARIES TO KEEP A RECORD OF PAYMENT MADE TO FARMERS AGAINST THEIR COMMODITY WHICH IS BE ING SOLD THROUGH THE ASSESSEE. THE ADVANCE GIVEN TO THESE FARMERS AR E OUT OF THE SALE PRODUCE OF THEIR PRODUCTS AND THE INCOME OF THE ASS ESSEE IS ONLY THE COMMISSION INCOME IN SUCH SALE. THE ADVANCE WHICH I S GIVEN IS ALSO ITA NO. 30/JODH/2021 SHRI PAWAN KUMAR JAIN VS. PR. CIT 6 OUT OF THE SALE PRODUCE OF THE FARMERS BEING SOLD, AND THEREFORE THERE IS NO INVESTMENT OF THE ASSESSEE IN MAKING THESE PA YMENTS. THE ASSESSEE IS A PACCA AARDITYA AND IS MAKING SALES ON BEHALF OF THESE FARMERS. HOWEVER DURING THE COURSE OF SURVEY PROCEE DINGS, THESE ENTRIES ARE FOR RECEIPTS AND PAYMENTS BEING MADE TO THE FARMERS. IT WAS THEREFORE, SUBMITTED EVEN DURING THE COURSE OF SURVEY PROCEEDINGS THAT THERE IS ROTATION OF FUNDS. THE PRODUCE IS BEI NG RECEIVED, THE SAME IS BEING SOLD, AND PAYMENTS ARE BEING MADE TO THE F ARMERS. IT WAS ON THE BASIS OF APPRECIATION OF THESE FACTS IT WAS OBS ERVED EVEN DURING SURVEY PROCEEDINGS THAT THE TOTAL ADVANCE IN ONE OF THE PARTY COMES TO RS. 7,21,103/-, HOWEVER TO ROUND IT OFF THE INCOME OF RS. 8,00,000/- WAS TAKEN. SIMILARLY IN THE CASE OF THE OTHER PARTY , THE SAID AMOUNT CAME TO RS. 8,13,202/- WHICH WAS ROUNDED OFF AS RS. 9,00,000/-. 8. IT WAS SUBMITTED THAT IN THESE FACTS, IT WAS THE REFORE NOT CORRECT TO SAY THAT THE AMOUNT WAS RS. 21,63,310/- AND RS. 16,26,405/- IS THE AMOUNT OF ADVANCE GIVEN AND IT WAS RS. 8,00,000/- A ND RS. 9,00,000/- ONLY WHICH COULD HAVE BEEN ESTIMATED ON THE BASIS O F THESE DOCUMENTS. THIS AMOUNT WAS ALSO DETERMINED AT THE TIME OF SURV EY PROCEEDINGS AND WAS ALSO VERIFIED AT THE TIME OF ASSESSMENT PROCEED INGS. THE SAID AMOUNT WAS DULY INCLUDED IN THE RETURN AND THEREFOR E THERE IS NO ERROR AND THE SAID ORDER ON THIS ISSUE CANNOT BE SAID TO BE ERRONEOUS OR PREJUDICIAL TO THE INTEREST OF REVENUE. 9. SIMILARLY IN RELATION TO THE OTHER ISSUE, THE AG REEMENT FOR PURCHASE OF PROPERTY WAS MADE AT RS. 60,00,000/- AN D ONLY RS. 36,00,000/- WAS PAID DURING THE YEAR, WHICH WAS VER IFIED AND VERIFIABLE ITA NO. 30/JODH/2021 SHRI PAWAN KUMAR JAIN VS. PR. CIT 7 FROM THE BOOKS AND EVEN DURING THE SURVEY THE SAME WAS VERIFIED. THE BALANCE PAYMENT AS PER AGREEMENT WAS REQUIRED TO BE MADE IN NEXT YEAR. THERE PRIMA FACIE THERE IS NOTHING WHICH NEED S TO BE DONE IN THE YEAR UNDER CONSIDERATION. EVEN OTHERWISE, THE REGIS TERED SALE DEED IS A PUBLIC DOCUMENT, AND THE BALANCE PAYMENT OF RS. 24, 00,000/- WAS DULY MADE ON 7.5.2016 WHICH IS NOT A EVENT OF THE C URRENT YEAR. THE SAID PAYMENT WAS ALSO VERIFIABLE FORM THE BANK STAT EMENT AND REGISTERED SALE DEED, WHICH WAS ALSO VERIFIED. IN L ETTER DATED ON 2.8.2018, THE DETAILS OF BANK LOAN TAKEN FOR PURCHA SE OF THIS PROPERTY AND COPY OF BANK STATEMENT WAS ALSO FURNISHED IN RE LATION TO THE PAYMENT MADE DURING THE YEAR UNDER CONSIDERATION. N OTHING REMAINS TO BE EXAMINED IN THE YEAR UNDER CONSIDERATION AND THEREFORE THE ORDER CANNOT BE SAID TO BE ERRONEOUS OR PREJUDICIAL TO THE INTEREST OF REVENUE ON THIS ISSUE ALSO. 10. IT WAS ACCORDINGLY SUBMITTED THAT UNDER THE PRE SENT FACTS AND CIRCUMSTANCES, THE ORDER SO PASSED U/S 263 MAY BE S ET-ASIDE. 11. PER CONTRA, THE LD. CIT/DR RELIED ON THE FINDIN G OF THE LD PCIT WHICH ARE CONTAINED AT PARA 5 OF HIS ORDER WHICH RE ADS AS UNDER:- 5. THE REPLY FILED BY THE A/R OF THE ASSESSEE AND INFORMATION /DETAILS AVAILABLE ON THE RECORDS HAVE BEEN CONSIDE RED CAREFULLY AND MY OBSERVATIONS IN THIS REGARD ARE UN DER: (I)/ISSUE/POINT 1: A SURVEY U/S 133A OF THE INCOME- TAX ACT, 1961 WAS CARRIED OUT IN THE CASE OF THE ASSESSEE. D URING THE ITA NO. 30/JODH/2021 SHRI PAWAN KUMAR JAIN VS. PR. CIT 8 SURVEY, THE ASSESSEE MADE A TOTAL SURRENDER OF RS. 43,00,935/-, INCLUDING ADDITION MADE ON ACCOUNT OF ADVANCES GIVE N OUT OF REGULAR BOOK S OF ACCOUNT. ON THE BASIS OF THE DOCUMENTS FOUND DURING THE SURVEY, THE ASSESSEE HAS MADE FOLLOWING OUT OF BOOKS ADVANCES: NAME OF PERSON FY AMOUNT TOTAL SURRENDER MADE HEMRAJ JAANI 2013- 14 5,04,720 21,63,310 8,00,000 2014- 15 10,38,165 2015- 16 6,20,425 SARGIT GODARA 2014- 15 6,84,915 16,26,405 9,00,000 2015- 16 9,41,490 FROM THE ABOVE, IT IS CLEAR THAT DURING THE FY 2013 -14 TO 2015-16, THE ASSESSEE MADE TOTAL ADVANCE OF RS. 216 3310/- TO HIMRAJ JYANI WHICH WERE OUT OF HIS REGULAR BOOKS OF ACCOUNT. SIMILARLY, SARGIT GODARA WAS ADVANCED A TOTAL SUM OF RS. 16,26,405/- DURING THE FY 2014-15 TO 2015-16 WHICH WAS ALSO OUT OF THE REGULAR BOOKS. AS PER THE DETAILS SUBMITTED AND INFORMATION GATHER ED DURING THE COURSE OF SURVEY, OUT OF TOTAL AMOUNT OF RS.21, 63,310/- ITA NO. 30/JODH/2021 SHRI PAWAN KUMAR JAIN VS. PR. CIT 9 ADVANCED TO SHRI HEMRAJ JYANI, THE ASSESSEE SURREND ERED RS.8,00,000/- IN THE YEAR UNDER CONSIDERATION. THE AO IS DIRECTED TO TAKE NECESSARY ACTION AS PER THE INCOME-TAX ACT 1961 IN RESPECT OF UNRECORDED TRANSACTIONS OF RS.5 04 720/- AND RS 10 38 165/- IN AY 2014-15 AND 2015-16, RESPECTIVELY. (II)/ ISSUE/POINT 2:- DURING THE SURVEY PROCEEDINGS , AN AGREEMENT FOR PURCHASE OF HOUSE PROPERTY WAS FOUND. AS PER THIS DOCUMENT, THE ASSESSEE HAD PURCHASED A HOUSE P ROPERTY FOR AN AMOUNT OF RS.60,00,000/-. A PAYMENT OF RS.36,00,000/-WAS MADE ON 27.11.2015 AND THE REMAIN ING PAYMENT WAS MADE ON 30.04.2016. THE ASSESSING OFFIC ER FAILED TO VERIFY THE SAID INFORMATION AS TO WHETHER THE REGISTERED DEED WAS EXECUTED OR NOT. THE AO IS DIRE CTED TO EXAMINE THIS ISSUE AFTER VERIFYING NECESSARY DETAIL S AND DOCUMENTS FROM THE ASSESSEE. 12. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ON PERUSAL OF STATEMENT OF SH RI PAWAN KUMAR JAIN RECORDED U/S 133A ON 01.12.2015, IT IS NOTED THAT I N RESPONSE TO QUESTION NO. 4, HE HAS OFFERED AN AMOUNT OF RS 8 LA CS TO TAX TOWARDS ADVANCES GIVEN OUT OF BOOKS TO SHRI HEMRAJ JYANI AN D IN RESPONSE TO QUESTION NO. 5, HE HAS OFFERED AN AMOUNT OF RS 9 LA CS TO TAX TOWARDS ADVANCES GIVEN OUT OF BOOKS TO SHRI SARGIT GODARA. HERE IT IS RELEVANT TO NOTE THAT THE ASSESSEE HAS STATED IN HIS STATEME NT THAT THOUGH THERE ARE VARIOUS ENTRIES FOUND RECORDED PERTAINING TO TH REE FINANCIAL YEARS IN RESPECT OF THESE TWO PERSONS, GIVEN THAT THERE IS C IRCULATION OF MONEY, ITA NO. 30/JODH/2021 SHRI PAWAN KUMAR JAIN VS. PR. CIT 10 FIGURES OF RS 8 LACS AND RS 9 LACS HAVE BEEN ARRIVE D AT AFTER CONSIDERING THE INTEREST ELEMENT AND WHICH WAS SURRENDERED TO T AX BY WAY OF ADDITIONAL INCOME AND THE SAME WAS DULY EXAMINED AN D TAKEN ON RECORD BY THE SURVEY TEAM. FURTHER, IT IS NOTED TH AT THE SAID ADVANCES OF RS 17 LACS FORM PART OF TOTAL SURRENDER OF RS 43 ,00,935/- MADE BY THE ASSESSEE FOR THE FINANCIAL YEAR 2015-16 RELEVANT TO IMPUGNED ASSESSMENT YEAR. DURING THE COURSE OF ASSESSMENT P ROCEEDINGS, THERE IS A CLEAR AFFIRMATION BY THE ASSESSING OFFICER THA T THE ASSESSEE HAS VOLUNTARY SURRENDERED INCOME OF RS 43,00,935/- ON A CCOUNT OF ADVANCES GIVEN TO FARMERS AND UNRECORDED ADVANCES FOUND DURI NG THE COURSE OF SURVEY AS ADDITIONAL INCOME IN HIS RETURN OF INCOME AND THE SAME WAS TREATED AS UNEXPLAINED INVESTMENT U/S 69 LIABLE FOR TAXATION AT THE RATE OF 30% UNDER SECTION 115BBE OF THE ACT AS IS CLEAR FROM THE FOLLOWING FINDINGS RECORDED IN THE ASSESSMENT ORDER:- UNDISCLOSED INCOME SURRENDERED DURING THE SURVEY 1. DURING THE YEAR, A SURVEY WAS CONDUCTED U/S 133A OF THE INCOME-TAX ACT, 1961. IN LIGHT OF THE DISCREPANCIES DISCOVERED DURING THE SURVEY, THE ASSESSEE VOLUNTARILY SURREND ERED AN AMOUNT OF RS. 43,00,935/- ON ACCOUNT OF ADVANCE GIV EN TO FARMERS AND UNRECORDED ADVANCES. IN LIGHT OF THE AB OVE FACTS, ADVANCE GIVEN TO FARMERS AND UNRECORDED ADVANCES OF RS. 43 LAKHS STANDS AS UNEXPLAINED INVESTMENT AS PER SECTI ON 69. THE SAME ARE REQUIRED TO BE TAXED AS PER THE PROVISION OF SECTION 115BBE. 2. IT IS ALSO NOTED THAT THIS INCOME OF THE ASSESSE E WOULD NOT HAVE BEEN DISCOVERED UNLESS AN ACTION U/S 133A OF T HE IT ACT, ITA NO. 30/JODH/2021 SHRI PAWAN KUMAR JAIN VS. PR. CIT 11 1961 WAS CONDUCTED. HENCE, PENALTY U/S 271(1) IS H EREBY INITIATED FOR CONCEALING TRUE INCOME ON THE AMOUNT OF RS. 43,00,935/- BEING UNDISCLOSED INCOME SUBSEQUENTLY S URRENDERED BY THE ASSESSEE. 13. WE THEREFORE FIND THAT THE MATTER RELATING TO U NRECORDED ADVANCES FOUND DURING THE COURSE OF SURVEY AND TAXA BILITY THEREOF HAS BEEN ENQUIRED BY THE AO AND SPECIFIC QUERIES HAVE B EEN RAISED IN RESPECT OF DOCUMENTS FOUND DURING THE COURSE OF SUR VEY AS PART OF NOTICE U/S 142(1) DATED 29.11.2018, THE REPLY SUBMI TTED BY THE ASSESSEE HAS BEEN DULY EXAMINED BY THE AO INCLUDING THE STATEMENT OF THE ASSESSEE RECORDED DURING THE COURSE OF SURVEY W HERE THERE IS CLEAR MENTION ABOUT ROTATION OF FUNDS AND HOW THE FINAL F IGURES OF RS 17 LACS HAS BEEN ARRIVED AT, THE FINDINGS OF THE SURVEY TEA M, THE SURRENDER MADE BY THE ASSESSEE AND ADDITIONAL INCOME OFFERED IN THE RETURN OF INCOME. IT IS THEREFORE NOT A CASE WHERE THE AO HAS MERELY GONE BY THE SURRENDER MADE AND ADDITIONAL INCOME OFFERED BY THE ASSESSEE IN THE RETURN OF INCOME RATHER THE AO HAS EXAMINED THE WHO LE GAMUT OF DOCUMENTATION FOUND DURING THE COURSE OF SURVEY AND THEREAFTER HAS ACCEPTED THE ADDITIONAL INCOME SO OFFERED BY THE AS SESSEE TOWARDS THE DISCREPANCIES FOUND DURING THE COURSE OF SURVEY. T HUS, IT CANNOT BE SAID THAT THERE IS FAILURE ON PART OF THE ASSESSING OFFICER TO MAKE PROPER ENQUIRIES AND VERIFICATIONS WHICH SHOULD HAVE BEEN MADE IN RESPECT OF THESE TRANSACTIONS FOUND DURING THE COURSE OF SURVE Y. 14. REGARDING THE SECOND ISSUE RAISED BY THE LD PCI T RELATING TO AGREEMENT FOR PURCHASE OF PROPERTY AND PAYMENT OF R S 36 LACS MADE ITA NO. 30/JODH/2021 SHRI PAWAN KUMAR JAIN VS. PR. CIT 12 DURING THE YEAR, IT HAS BEEN SUBMITTED THAT THE PAY MENT IS DULY VERIFIABLE FROM THE BANK STATEMENT AND THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE AND ALSO FIND MENTION IN THE REGISTERED SALE DEED EXECUTED DURING THE SUBSEQUENT FINANCIAL YEAR AND THE DETAILS THEREOF WERE DULY SUBMITTED VIDE LETTER DATED 1.08. 2018 AND THUS DULY EXAMINED BY THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IN THIS REGARD, WE FIND THAT THE AO HAS RAISED A SPECI FIC QUERY AS PART OF INITIAL NOTICE U/S 142(1) DATED 24.07.2018 AND IN R ESPONSE TO THE SAME, THE ASSESSEE HAS SUBMITTED THAT HE HAS MADE A PAYME NT OF RS 36 LACS TOWARDS PURCHASE OF A RESIDENTIAL HOUSE AND A PART OF WHICH HAS BEEN FUNDED THROUGH BANK BORROWING AMOUNTING TO RS 27 LA CS FROM THE OBC BANK DULY REFLECTED IN THE FINANCIAL STATEMENTS. W E THEREFORE FIND THAT THE MATTER HAS BEEN DULY EXAMINED BY THE AO AND AFT ER TAKING INTO CONSIDERATION THE SUBMISSION OF THE ASSESSEE INCLUD ING THE SOURCE OF PAYMENT TOWARDS THE PURCHASE OF RESIDENTIAL HOUSE, THE SAME HAS BEEN ACCEPTED AND NO ADVERSE FINDING HAS BEEN RECORDED. THUS, IT CANNOT BE SAID THAT THERE IS FAILURE ON PART OF THE ASSESS ING OFFICER TO MAKE PROPER ENQUIRIES AND VERIFICATIONS WHICH SHOULD HAV E BEEN MADE IN RESPECT OF THE SAID TRANSACTION. 15. IN LIGHT OF AFORESAID DISCUSSIONS AND IN THE EN TIRETY OF FACTS AND CIRCUMSTANCES OF THE CASE, THERE IS NO BASIS TO HOL D THAT THE ORDER PASSED BY THE ASSESSING OFFICER IS ERRONEOUS IS SO FAR AS PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE ORDER OF THE LD P CIT AND THE DIRECTIONS CONTAINED THEREIN ARE HEREBY SET-ASIDE AND THE ORDE R OF THE ASSESSING OFFICER IS SUSTAINED. ITA NO. 30/JODH/2021 SHRI PAWAN KUMAR JAIN VS. PR. CIT 13 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 07/09/2021. SD/- SD/- ( SANDEEP GOSAIN ) (VIKRAM SINGH YADAV) JUDICIAL MEMBER ACCOUNTANT MEMBER JODHPUR DATED:- 07/09/2021. *SANTOSH COPY OF THE ORDER FORWARDED TO: 1. A. THE APPELLANT- SHRI PAWAN KUMAR JAIN, HANUMANGAR H. 2. THE RESPONDENT- PR. CIT-1, JODHPUR. 3. CIT 4. CIT(A) 5. DR, ITAT, JODHPUR. 6. GUARD FILE { ITA NO. 30/JODH/2021} BY ORDER, ASST. REGISTRAR