Mr. Jagat Singh, Delhi V. ACIT, New Delhi

ITA 3039/DEL/2015

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4010 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 5 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-11-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 18-04-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 15-05-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NAINA SOIN KAPIL
• Assessee Lawyers: D B JAIN; C S AGRAWAL
• Keywords: Unexplained cash credit; Unexplained investment; Search and seizure; Salary income; Peak credit; Source of fund; Deemed to accrue or arise in india; Tangible material; Assessment record; Onus to prove; Reason to believe; Reassessment proceedings
• Section: 69C; 143(3); 147; 68; 69; 148; 139

Judgement Text

1 ITA NOS. 3036 TO 3039/DEL/2015 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: D NEW DELHI BEFORE SHRI N. K. SAINI, ACCOUNTANT MEM BER AND MS SUCHITRA KAMBLE, JUDI CIAL MEMBER ITA NO. 3036/DEL/2015 ( A.Y 2001-02) ITA NO. 3037/DEL/2015 ( A.Y 2005-06) ITA NO. 3038/DEL/2015 ( A.Y 2006-07) ITA NO. 3039/DEL/2015 ( A.Y 2007-08) JAGAT SINGH C/O. DB JAIN & CO. 1-ANSARI ROAD, DARYAGANJ DELHI ALDPS0734K (APPELLANT) VS ACIT CENTRAL CIRCLE-5 NEW DELHI (RESPONDENT) APPELLANT BY SH. C. S. AGRAWAL, SR. ADV & SH. D. B. JAIN, FCA RESPONDENT BY SH. NAINA SOIN KAPIL, SR. DR ORDER PER SUCHITRA KAMBLE, JM THESE APPEALS ARE FILED BY THE ASSESSEE AGAINST THE ORDER DATED 26/03/2015 PASSED BY CIT (A)-XXIV- FOR ASSESSMENT Y EARS 2001-02, 2005-06, 2006-07, 2007-08 RESPECTIVELY. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- ITA NO. 3036/DEL/2015 (A.Y. 2001-02) 1. THAT THE LEARNED CIT(A) HAS GROSSLY ERRED BOTH IN LAW AND ON DATE OF HEARING 25.09.2018 DATE OF PRONOUNCEMENT 02.11.2018 2 ITA NOS. 3036 TO 3039/DEL/2015 FACTS IN UPHOLDING THE INITIATION OF THE REASSESSM ENT PROCEEDINGS UNDER SECTION 147 OF THE INCOME TAX AC T, 1961. 1.1. THAT THE LEARNED CIT(A) HAS FAILED TO APPRECI ATE THAT, IN THE ABSENCE OF SURFACING OF ANY TANGIBLE MATERIAL, THE LEARNED A.O. COULD NOT HAVE PROCEEDED TO INVOKE THE PROVISIONS OF SECTION 147 OF THE INCOME TAX ACT AND AS SUCH LEARNED CIT(A) O UGHT TO HAVE HELD THAT THE INITIATION OF PROCEEDINGS U/S 148 OF THE INCOME TAX ACT WAS WITHOUT JURISDICTION. 1.2. THAT THE LEARNED CIT(A) HAS FAILED TO COMPREH END THAT, THE LEARNED ACIT HAD NO 'TANGIBLE MATERIAL' AT THE TIM E OF INITIATION OF PROCEEDINGS AND THE ALLEGED 'INFORMATION' WHICH WAS STATED TO HAVE BEEN ALLEGEDLY RECEIVED FROM THE ADDL. CIT, T OO WAS WITHOUT ANY SUPPORTING MATERIAL AND WAS NOT AVAILABLE WITH HIM, AS SUCH, REASSESSMENT PROCEEDINGS INITIATED WITHOUT ANY TA NGIBLE MATERIAL AND UPHELD BY THE LEARNED CIT(A) IS UNSUS TAINABLE IN LAW. 1.3. THAT, THE FINDING OF THE LEARNED CIT(A) THAT THE A.O. HAS RECEIVED 'AUTHENTIC' INFORMATION FROM ANOTHER STAT UTORY AUTHORITY ABOUT RECOVERY OF PEN DRIVE FROM SH. CHETAN GUPTA DURING RAID CONDUCTED BY PUNJAB VIGILANCE BUREAU, LUDHIANA, WA S INSUFFICIENT TO ENABLE THE LEARNED A.O. TO FORM HI S REASON TO BELIEVE, AS THE LEARNED A.O. WAS OBLIGED IN LAW TO HAVE THE 'MATERIAL' AND NOT A MERE REPORT BEFORE FORMING HI S REASON TO BELIEVE THAT THE INCOME OF THE ASSESSEE HAD ESCA PED ASSESSMENT. 1.4. THAT THE LEARNED CIT(A) HAS FAILED TO APPRECIA TE THE DISTINCTION BETWEEN MERE ALLEGATION, INFORMATION AND THE MATERI AL. HE HAS FAILED TO APPRECIATE THAT THE INFORMATION BY ITSELF , WHICH IS NOT IN THE NATURE OF TANGIBLE MATERIAL COULD NOT FORM THE BASI S OF THE REOPENING OF THE ASSESSMENT AS SUCH, THE LEARNED CIT(A) HAS E RRED IN HOLDING THAT THE LEARNED A.O. WAS JUSTIFIED BOTH ON FACTS A ND IN LAW IN HAVING INITIATED THE REASSESSMENT PROCEEDINGS. 3 ITA NOS. 3036 TO 3039/DEL/2015 1.5. THAT THE LEARNED CIT(A) HAS FAILED TO COMPREH END THAT, THE ALLEGED INFORMATION WAS NOT AVAILABLE WITH THE A.O . AND HAD IT BEEN SO AVAILABLE AND WAS ALLEGEDLY RECEIVED BEFO RE INITIATING THE PROCEEDING, THE SAME WOULD HAVE FOUND FROM HIS REC ORD, WHICH WAS NEVER FOUND TO BE EXISTING ON THE RECORD OF A.O. A ND INFACT, DESPITE ASSESSEE'S REPEATED REQUEST, NO SUCH MATERIAL WAS EITHER SUPPLIED TO HIM OR WAS EVEN CONFRONTED. 2. THAT WITHOUT PREJUDICE TO THE AFORESAID AND OTH ERWISE TOO, THE LEARNED CIT(A) HAS FAILED TO APPRECIATE THAT, THE ADDITION MADE OF RS. 11,53,200/- WAS UNSUSTAINABLE. THE ASSUMPTION OF THE LEARNED CIT(A) THAT THE ASSESSEE HAD A CLEAR BUSIN ESS LINK AND ASSOCIATION BETWEEN SH. CHETAN GUPTA IS FALLACIOUS , UNTENABLE AND IN ANY CASE ANY SUCH LINK OR ASSOCIATION COULD NOT BE HELD TO BE ANY GROUND AT ALL TO HOLD THAT, THE ASSESSEE HAD M ADE AN INVESTMENT WITH SHRI CHETAN GUPTA, EVEN IF FOR THE SAKE OF AN ARGUMENT IT IS ACCEPTED THAT THERE WAS A CREDIT IN THE PEN DRIVE MAINTAINED BY SHRI CHETAN GUPTA. 2.1. THE LEARNED CIT(A) HAS FAILED TO APPRECIATE T HE DISTINCTION BETWEEN UNEXPLAINED CREDITS FALLING U/S 68 AND UNE XPLAINED INVESTMENT U/S 69 OF THE INCOME TAX ACT. HE HAS FA ILED TO APPRECIATE THAT THE LEARNED A.O. MADE 11,53,200/- U/S 69 OF THE ACT, WHICH HAD ABSOLUTELY NO APPLICATION AND THUS THE ADDITION MADE OF RS. 11,53,200/- WAS TOTALLY UNSUSTAINABLE. 2.2. THAT THE LEARNED CIT(A) HAS FAILED TO APPRECI ATE THAT, THE BURDEN WAS ON THE LEARNED AO TO ESTABLISH THAT THE ASSESSEE HAD MADE AN INVESTMENT AND THAT THERE WERE CREDITS IN THE BOOKS OF THE ASSESSEE, AND WITHOUT DISCHARGING SUCH A BURDE N, NO ADDITION WAS SUSTAINABLE U/S 69 OF THE INCOME TAX ACT. 2.3. THAT THE LEARNED CIT(A) HAS FURTHER FAILED TO APPRECIATE THAT, DESPITE THE ASSESSEE'S REPEATED REQUEST TO PRODUCE SHRI CHETAN 4 ITA NOS. 3036 TO 3039/DEL/2015 GUPTA FOR THE ASSESSEE'S CROSS EXAMINATION TO REBU T THE ALLEGATION THAT, THERE WAS CREDITS IN THE BOOKS OF SHRI CHETA N GUPTA, HAVING NOT BEEN PROVIDED, NO ADDITION WAS SUSTAINABLE IN THE HANDS OF THE ASSESSEE. 2.4. THAT IN ANY CASE AND WITHOUT PREJUDICE, NO RE LIANCE COULD HAVE BEEN PLACED ON THE STATEMENT OF SHRI CHETAN GUPTA SINCE THE SAID STATEMENT WAS ALLEGEDLY MADE BEFORE POLICE A UTHORITIES AND HAD FURTHER NEVER BEEN CONFRONTED TO THE ASSESSEE AND THAT EVEN OTHERWISE IN THE ABSENCE OF ANY STATEMENT MADE BY SHRI CHETAN GUPTA THAT, THE ALLEGED CREDITS APPEARING IN HIS P EN DRIVE IN ANY MANNER BELONGS TO THE ASSESSEE, THERE WAS NO JUSTI FICATION EITHER ON FACTS OR IN LAW TO HAVE SUSTAINED ANY SUCH ADDITIO N. 2.5. THAT THE LEARNED CIT(A) HAS FAILED TO APPRECI ATE THAT, THE BURDEN WHICH WAS ON THE REVENUE HAS NOT BEEN DISCH ARGED AND THERE WAS NOT ANY MATERIAL TO ESTABLISH THAT, WHAT WAS CREDITED IN THE ACCOUNT OF SHRI CHETAN GUPTA WAS THE INVESTMEN T MADE BY THE ASSESSEE. THE MERE FACT, THERE WERE CERTAIN CREDIT S IN SOME ABBREVIATED FORM DOES NOT LEAD TO A CONCLUSION THA T THE ASSESSEE HAD MADE ANY SUCH INVESTMENT. 3. THAT THE FINDINGS RECORDED BY THE CIT(A) IN HIS ORDER IN PARA 5.4.7 THAT, HE DOES NOT CONSIDER THE CASE LAWS RELI ED UPON BY THE AR HAVE ANY RELEVANCE TO THE FACTS OF THE CASE, ARE WHOLLY MISCONCEIVED AND IN DISREGARD OF THE FACT THAT, IN IDENTICAL FACTS AND IN IDENTICAL CIRCUMSTANCES, IT HAS CONSISTENTLY BEEN HELD THAT, THERE WERE NO CREDITS MADE IN THE PEN DRIVE OF SHRI CHETAN GUPTA BY THE ASSESSEE'S FATHER, HIS MOTHER AND SHRI AMRIN DER SINGH, ASSESSEE'S UNCLE AND THAT OF SHRI RANINDER SINGH. T HUS THERE WAS HEAVY BURDEN ON THE CIT(A) TO BRING ON RECORD THE F ACTS WHICH CAN DISTINGUISH THE JUDGMENTS RELIED BY THE ASSESSEE. IT IS THEREFORE PRAYED THAT, IT BE HELD THAT THE IN ITIATION OF 5 ITA NOS. 3036 TO 3039/DEL/2015 PROCEEDING U/S 147 OF THE INCOME TAX ACT AND THAT THE ADDITIONS SUSTAINED OF RS. 11,53,200/- BE DELETED AND IT BE FURTHER HELD THAT, NO INTEREST ACCRUED TO THE ASSESSEE AS THERE WAS NO CONTRACTUAL OBLIGATION IN RESPECT THEREOF. ITA NO. 3037/DEL/2015(A.Y. 2005-06) 1. THAT THE LEARNED CIT(A) HAS GROSSLY ERRED BOTH I N LAW AND ON FACTS IN UPHOLDING THE INITIATION OF THE REASSESSME NT PROCEEDINGS UNDER SECTION 147 OF THE INCOME TAX ACT, 1961. 1.1. THAT THE LEARNED CIT(A) HAS FAILED TO APPRECI ATE THAT, IN THE ABSENCE OF SURFACING OF ANY TANGIBLE MATERIAL, THE LEARNED A.O. COULD NOT HAVE PROCEEDED TO INVOKE THE PROVISIONS OF SEC TION 147 OF THE INCOME TAX ACT AND AS SUCH LEARNED CIT(A) OUGHT TO HAVE HELD THAT THE INITIATION OF PROCEEDINGS U/S 148 OF THE INCOM E TAX ACT WAS WITHOUT JURISDICTION. 1.2. THAT THE LEARNED CIT(A) HAS FAILED TO COMPREH END THAT, THE LEARNED ACIT HAD NO 'TANGIBLE MATERIAL' AT THE TIM E OF INITIATION OF PROCEEDINGS AND THE ALLEGED 'INFORMATION' WHICH WA S STATED TO HAVE BEEN ALLEGEDLY RECEIVED FROM THE ADDL. CIT, TOO WA S WITHOUT ANY SUPPORTING MATERIAL AND WAS NOT AVAILABLE WITH HIM , AS SUCH, REASSESSMENT PROCEEDINGS INITIATED WITHOUT ANY TAN GIBLE MATERIAL AND UPHELD BY THE LEARNED CIT(A) IS UNSUSTAINABLE IN LAW. 1.3. THAT, THE FINDING OF THE LEARNED CIT(A) THAT THE A.O. HAS RECEIVED 'AUTHENTIC' INFORMATION FROM ANOTHER STAT UTORY AUTHORITY ABOUT RECOVERY OF PEN DRIVE FROM SH. CHETAN GUPTA DURING RAID CONDUCTED BY PUNJAB VIGILANCE BUREAU, LUDHIANA, WA S INSUFFICIENT TO ENABLE THE LEARNED A.O. TO FORM HIS REASON TO BELI EVE, AS THE LEARNED A.O. WAS OBLIGED IN LAW TO HAVE THE 'MATERIAL' AND NOT A MERE REPORT BEFORE FORMING HIS REASON TO BELIEVE THAT THE INCO ME OF THE ASSESSEE HAD ESCAPED ASSESSMENT. 6 ITA NOS. 3036 TO 3039/DEL/2015 1.4. THAT THE LEARNED CIT(A) HAS FAILED TO APPRECI ATE THE DISTINCTION BETWEEN MERE ALLEGATION, INFORMATION AND THE MATER IAL. HE HAS FAILED TO APPRECIATE THAT THE INFORMATION BY ITSELF, WHIC H IS NOT IN THE NATURE OF TANGIBLE MATERIAL COULD NOT FORM THE BASIS OF T HE REOPENING OF THE ASSESSMENT AS SUCH, THE LEARNED CIT(A) HAS ERRED I N HOLDING THAT THE LEARNED A.O. WAS JUSTIFIED BOTH ON FACTS AND IN LA W IN HAVING INITIATED THE REASSESSMENT PROCEEDINGS. 1.5. THAT THE LEARNED CIT(A) HAS FAILED TO COMPREH END THAT, THE ALLEGED INFORMATION WAS NOT AVAILABLE WITH THE A.O . AND HAD IT BEEN SO AVAILABLE AND WAS ALLEGEDLY RECEIVED BEFORE INI TIATING THE PROCEEDING, THE SAME WOULD HAVE FOUND FROM HIS REC ORD, WHICH WAS NEVER FOUND TO BE EXISTING ON THE RECORD OF A.O. A ND IN-FACT, DESPITE ASSESSEE'S REPEATED REQUEST, NO SUCH MATERIAL WAS EITHER SUPPLIED TO HIM OR WAS EVEN CONFRONTED. 2. THAT WITHOUT PREJUDICE TO THE AFORESAID AND OTH ERWISE TOO, THE LEARNED CIT(A) HAS FAILED TO APPRECIATE THAT, THE ADDITION MADE OF RS. 1,84,39,002/- WAS UNSUSTAINABLE. THE ASSUMPTIO N OF THE LEARNED CIT(A) THAT THE ASSESSEE HAD A CLEAR BUSIN ESS LINK AND ASSOCIATION BETWEEN SH. CHETAN GUPTA IS FALLACIOUS , UNTENABLE AND IN ANY CASE ANY SUCH LINK OR ASSOCIATION COULD NOT BE HELD TO BE ANY GROUND AT ALL TO HOLD THAT, THE ASSESSEE HAD MADE AN INVESTMENT WITH SHRI CHETAN GUPTA, EVEN IF FOR THE SAKE OF AN ARGUMENT IT IS ACCEPTED THAT THERE WAS A CREDIT IN THE PEN DRIVE MAINTAINED BY SHRI CHETAN GUPTA. 2.1. THE LEARNED CIT(A) HAS FAILED TO APPRECIATE T HE DISTINCTION BETWEEN UNEXPLAINED CREDITS FALLING U/S 68 AND UNE XPLAINED INVESTMENT U/S 69 OF THE INCOME TAX ACT. HE HAS FA ILED TO APPRECIATE THAT THE LEARNED A.O. MADE RS. 1,84,39 ,002/- U/S 69 OF THE ACT, WHICH HAD ABSOLUTELY NO APPLICATION AND T HUS THE ADDITION MADE OF RS.1,84,39,002/-WAS TOTALLY UNSUS TAINABLE. 7 ITA NOS. 3036 TO 3039/DEL/2015 2.2. THAT THE LEARNED CIT(A) HAS FAILED TO APPRECI ATE THAT, THE BURDEN WAS ON THE LEARNED AO TO ESTABLISH THAT THE ASSESSEE HAD MADE AN INVESTMENT AND THAT THERE WERE CREDITS IN THE BOOKS OF THE ASSESSEE, AND WITHOUT DISCHARGING SUCH A BURDEN, N O ADDITION WAS SUSTAINABLE U/S 69 OF THE INCOME TAX ACT. 2.3. THAT THE LEARNED CIT(A) HAS FURTHER FAILED TO APPRECIATE THAT, DESPITE THE ASSESSEE'S REPEATED REQUEST TO PRODUCE SHRI CHETAN GUPTA FOR THE ASSESSEE'S CROSS EXAMINATION TO REBU T THE ALLEGATION THAT, THERE WAS CREDITS IN THE BOOKS OF SHRI CHETA N GUPTA, HAVING NOT BEEN PROVIDED, NO ADDITION WAS SUSTAINABLE IN THE HANDS OF THE ASSESSEE. 2.4. THAT IN ANY CASE AND WITHOUT PREJUDICE, NO R ELIANCE COULD HAVE BEEN PLACED ON THE STATEMENT OF SHRI CHETAN G UPTA SINCE THE SAID STATEMENT WAS ALLEGEDLY MADE BEFORE POLICE AU THORITIES AND HAD FURTHER NEVER BEEN CONFRONTED TO THE ASSESSEE AND THAT EVEN OTHERWISE IN THE ABSENCE OF ANY STATEMENT MADE BY SHRI CHETAN GUPTA THAT, THE ALLEGED CREDITS APPEARING IN HIS P EN DRIVE IN ANY MANNER BELONGS TO THE ASSESSEE, THERE WAS NO JUSTI FICATION EITHER ON FACTS OR IN LAW TO HAVE SUSTAINED ANY SUCH ADDITIO N. 2.5. THAT THE LEARNED CIT(A) HAS FAILED TO APPREC IATE THAT, THE BURDEN WHICH WAS ON THE REVENUE HAS NOT BEEN DISCH ARGED AND THERE WAS NOT ANY MATERIAL TO ESTABLISH THAT, WHAT WAS CREDITED IN THE ACCOUNT OF SHRI CHETAN GUPTA WAS THE INVESTMEN T MADE BY THE ASSESSEE. THE MERE FACT, THERE WERE CERTAIN CREDIT S IN SOME ABBREVIATED FORM DOES NOT LEAD TO A CONCLUSION THA T THE ASSESSEE HAD MADE ANY SUCH INVESTMENT. 3. THAT THE LEARNED CIT(A) OUGHT TO HAVE DELETED THE ADDITION MADE BY THE LEARNED AO IN RESPECT OF THE ALLEGED L OW WITHDRAWALS. HE OUGHT TO HAVE HELD THAT THE FINDIN GS OF THE LEARNED ASSESSING OFFICER THAT THE APPELLANT'S WIT HDRAWALS WERE 8 ITA NOS. 3036 TO 3039/DEL/2015 INSUFFICIENT AND LOW WARRANTING AN ADDITION TO BE MADE UNDER SECTION 69C OF THE ACT WERE ERRONEOUS BOTH ON FAC T AND IN LAW AND WERE BASED ON NO MATERIAL. HE THUS OUGHT TO HAVE H ELD THAT THE ADDITION WAS MADE ON THE BASIS OF SUSPICION AND W ITHOUT ANY MATERIAL AND HENCE SUCH AN ADDITION WAS LIABLE TO HAVE BEEN DELETED BY HOLDING THAT ADDITION MADE WITHOUT ANY MATERIAL WAS UNSUSTAINABLE IN LAW. 4. THAT THE FINDINGS RECORDED BY THE CIT(A) IN HIS ORDER IN PARA 4.6.7 THAT, HE DOES NOT CONSIDER THE CASE LAWS REL IED UPON BY THE AR HAVE ANY RELEVANCE TO THE FACTS OF THE CASE, ARE W HOLLY MISCONCEIVED AND IN DISREGARD OF THE FACT THAT, IN IDENTICAL FA CTS AND IN IDENTICAL CIRCUMSTANCES, IT HAS CONSISTENTLY BEEN HELD THAT, THERE WERE NO CREDITS MADE IN THE PEN DRIVE OF SHRI CHETAN GUPTA BY THE ASSESSEE'S FATHER, HIS MOTHER AND SHRI AMRINDER SI NGH, ASSESSEE'S UNCLE AND THAT OF SHRI RANINDER SINGH. THUS THERE WAS HEAVY BURDEN ON THE CIT(A) TO BRING ON RECORD THE FACTS WHICH CAN DISTINGUISH THE JUDGMENTS RELIED BY THE ASSESSEE. 5. THAT THE LEARNED CIT(A) HAS GROSSLY ERRED IN SU STAINING THE DISALLOWANCE MADE BY THE LEARNED AO OF RS. 30,000/ - BEING THE DEDUCTION ALLOWABLE TO THE ASSESSEE ON INCOME FROM SALARY UNDER THE PROVISIONS OF SECTION 16(1) OF THE INCOME TAX ACT, 1961. IT IS THEREFORE PRAYED THAT, IT BE HELD THAT THE IN ITIATION OF PROCEEDING U/S 147 OF THE INCOME TAX ACT AND THAT THE ADDITION S SUSTAINED OF RS. 1,84,69,002/- BE DELETED AND IT BE FURTHER HELD THAT, NO INTEREST ACCRUED TO THE ASSESSEE AS THERE WAS NO CONTRACTUAL OBLIGATION IN RESPECT THEREOF. ITA NO. 3038/DEL/2015 (A.Y. 2006-07) 1. THAT THE LEARNED CIT(A) HAS GROSSLY ERRED BOTH IN LAW AND ON FACTS IN UPHOLDING THE ADDITION MADE BY THE LEARNE D ACIT OF RS. 9 ITA NOS. 3036 TO 3039/DEL/2015 1,73,61,108/- UNDER SECTION 68 OF THE INCOME TAX A CT, 1961. 2. THAT WHILE SUSTAINING THE AFORESAID ADDITION, L EARNED CIT(A) HAS GROSSLY ERRED IN PLACING RELIANCE ON THE ORDER OF THE CIT(A) FOR THE ASSESSMENT YEAR 2001- 02 AND 2005-06. 3.THAT WITHOUT PREJUDICE TO THE AFORESAID AND OTHE RWISE TOO, THE LEARNED CIT(A) HAS FAILED TO APPRECIATE THAT, THE ADDITION MADE OF RS. 1,73,61,108/- WAS UNSUSTAINABLE. THE ASSUMPTIO N OF THE LEARNED CIT(A) THAT THE ASSESSEE HAD A CLEAR BUSIN ESS LINK AND ASSOCIATION BETWEEN SH. CHETAN GUPTA IS FALLACIOUS , UNTENABLE AND IN ANY CASE ANY SUCH LINK OR ASSOCIATION COULD NOT BE HELD TO BE ANY GROUND AT ALL TO HOLD HAT, THE ASSESSEE HAD MADE AN INVESTMENT WITH SHRI CHETANGUPTA, EVEN IF FOR THE SAKE OF AN ARGUME NT IT IS ACCEPTED THAT THERE WAS A CREDIT IN THE PEN DRIVE MAINTAINE D BY SHRI CHETAN GUPTA. 2.1 THE LEARNED CIT(A) HAS FAILED TO APPRECIATE T HE DISTINCTION BETWEEN UNEXPLAINED CREDITS FALLING U/S 68 AND UNEX PLAINED INVESTMENT U/S 69 OF THE INCOME TAX ACT. HE HAS FAI LED TO APPRECIATE THAT THE LEARNED A.O. MADE RS.1,73,61,108/- U/S 69 OF THE ACT, WHICH HAD ABSOLUTELY NO APPLICATION AND THUS THE AD DITION MADE OF RS.1,73,61,108/- WAS TOTALLY UNSUSTAINABLE. 2.2.THAT THE LEARNED CIT(A) HAS FAILED TO APPRECI ATE THAT, THE BURDEN WAS ON THE LEARNED AO TO ESTABLISH THAT THE ASSESS EE HAD MADE AN INVESTMENT AND THAT THERE WERE CREDITS IN THE BOOK S OF THE ASSESSEE, AND WITHOUT DISCHARGING SUCH A BURDEN, N O ADDITION WAS SUSTAINABLE U/S 69 OF THE INCOME TAX ACT. 2.3. THAT THE LEARNED CIT(A) HAS FURTHER FAILED T O APPRECIATE THAT, DESPITE THE ASSESSEE'S REPEATED REQUEST TO PRODUCE SHRI CHETAN GUPTA FOR THE ASSESSEE'S CROSS EXAMINATION TO REBU T THE ALLEGATION 10 ITA NOS. 3036 TO 3039/DEL/2015 THAT, THERE WAS CREDITS IN THE BOOKS OF SHRI CHETA N GUPTA, HAVING NOT BEEN PROVIDED, NO ADDITION WAS SUSTAINABLE IN THE HANDS OF THE ASSESSEE. 2.4. THAT IN ANY CASE AND WITHOUT PREJUDICE, NO R ELIANCE COULD HAVE BEEN PLACED ON THE STATEMENT OF SHRI CHETAN GUPTA S INCE THE SAID STATEMENT WAS ALLEGEDLY MADE BEFORE POLICE AUTHORIT IES AND HAD FURTHER NEVER BEEN CONFRONTED TO THE ASSESSEE AND THAT EVEN OTHERWISE IN THE ABSENCE ANY STATEMENT MADE BY SH RI CHETAN GUPTA THAT, THE ALLEGED CREDITS APPEARING IN HIS PE N DRIVE IN ANY MANNER BELONGS TO THE ASSESSEE, THERE WAS NO JUSTIF ICATION EITHER ON FACTS OR IN LAW TO HAVE SUSTAINED ANY SUCH ADDITION . 2.5. THAT THE LEARNED CIT(A) HAS FAILED TO APPRECIA TE THAT, THE BURDEN WHICH WAS ON THE REVENUE HAS NOT BEEN DISCHA RGED AND THERE WAS NOT ANY MATERIAL TO ESTABLISH THAT, WHAT WAS CREDITED IN THE ACCOUNT OF SHRI CHETAN GUPTA WAS THE INVESTMENT MADE BY THE ASSESSEE. THE MERE FACT, THERE WERE CERTAIN CREDITS IN SOME ABBREVIATED FORM DOES NOT LEAD TO A CONCLUSION THAT THE ASSESSEE HAD MADE ANY SUCH INVESTMENT. 3. THAT THE LEARNED CIT(A) OUGHT TO HAVE DELET ED THE ADDITION MADE BY THE LEARNED AO IN RESPECT OF THE ALLEGED LO W WITHDRAWALS. HE OUGHT TO HAVE HELD THAT THE FINDINGS OF THE LEAR NED AO THAT THE APPELLANT'S WITHDRAWALS WERE INSUFFICIENT AND LOW W ARRANTING AN ADDITION TO BE MADE UNDER SECTION 69C OF THE ACT WE RE ERRONEOUS BOTH ON FACT AND IN LAW AND WERE BASED ON NO MATERI AL. HE THUS OUGHT TO HAVE HELD THAT THE ADDITION WAS MADE ON TH E BASIS OF SUSPICION AND WITHOUT ANY MATERIAL AND HENCE SUCH A N ADDITION WAS LIABLE TO HAVE BEEN DELETED BY HOLDING THAT ADDITIO N MADE WITHOUT ANY MATERIAL WAS UNSUSTAINABLE IN LAW. 4. THAT THE FINDINGS RECORDED BY THE CIT(A) THAT T HE CASE LAWS RELIED UPON BY THE AR HAVE ANY RELEVANCE TO THE FA CTS OF THE CASE, 11 ITA NOS. 3036 TO 3039/DEL/2015 ARE WHOLLY MISCONCEIVED AND IN DISREGARD OF THE FA CT THAT, IN IDENTICAL FACTS AND IN IDENTICAL CIRCUMSTANCES, IT HAS CONSISTENTLY BEEN HELD THAT, THERE WERE NO CREDITS MADE IN THE PEN DRIVE OF SHRI CHETAN GUPTA BY THE ASSESSEE'S FATHER, HIS MOTHER AND SHRI AMRINDER SINGH, ASSESSEE'S UNCLE AND THAT OF SHRI RANINDER SINGH. THUS THERE WAS HEAVY BURDEN ON THE CIT(A) TO BRING ON RECORD THE FACTS WHICH CAN DISTINGUISH THE JUDGMENTS RELIED B Y THE ASSESSEE. IT IS THEREFORE PRAYED THAT, IT BE HELD THAT THE AD DITION SUSTAINED OF RS. 1,73,61,108/- BE DELETED AND IT BE FURTHER HELD THAT, NO INTEREST ACCRUED TO THE ASSESSEE AS THERE WAS NO CONTRACTUAL OBLIGATION IN RESPECT THEREOF. ITA NO. 3039/DEL/2015 (A.Y. 2007-08) 1. THAT THE LEARNED CIT(A) HAS GROSSLY ERRED BOTH I N LAW AND ON FACTS IN SUSTAINING THE ADDITIONS OF RS. 11,66,032/- MADE BY THE LEARNED ACIT IN THE ORDER OF ASSESSMENT PASSED UNDER SECTIO N 143(3) OF THE ACT. 2. THAT WHILE SUSTAINING THE AFORESAID ADDITION, LE ARNED CIT(A) HAS GROSSLY ERRED IN PLACING RELIANCE ON THE ORDER OF THE CIT(A) FOR THE ASSESSMENT YEAR 2001- 02. 3. THAT WITHOUT PREJUDICE TO THE AFORESAID AND OTHE RWISE TOO, THE LEARNED CIT(A) HAS FAILED TO APPRECIATE THAT, THE A DDITION MADE OF RS. 10,46,032/- WAS UNSUSTAINABLE. THE ASSUMPTION OF THE LEARNED CIT(A) THAT THE ASSESSEE HAD A CLEAR BUSI NESS LINK AND ASSOCIATION BETWEEN SH. CHETAN GUPTA IS FALLACIOUS , UNTENABLE AND IN ANY CASE ANY SUCH LINK OR ASSOCIATION COUL D NOT BE HELD TO BE ANY GROUND AT ALL TO HOLD THAT, THE ASSESSEE H AD MADE AN INVESTMENT WITH SHRI CHETAN GUPTA, EVEN IF FOR THE SAKE OF AN ARGUMENT IT IS ACCEPTED THAT THERE WAS A CREDIT IN THE PEN DRIVE 12 ITA NOS. 3036 TO 3039/DEL/2015 MAINTAINED BY SHRI CHETAN GUPTA. 2.1 THE LEARNED CIT(A) HAS FAILED TO APPRECIATE THE DISTINCTION BETWEEN UNEXPLAINED CREDITS FALLING U/S 68 AND UNEXPLAINED INVESTMENT U/S 69 OF THE INCOME TAX ACT. HE HAS FAILED TO APPRECIA TE THAT THE LEARNED A.O. MADE RS. 10,46,032/- U/S 69 OF THE ACT , WHICH HAD ABSOLUTELY NO APPLICATION AND THUS THE ADDITION MAD E OF RS. 10,46,032/- WAS TOTALLY UNSUSTAINABLE. 2.2. THAT THE LEARNED CIT(A) HAS FAILED TO APPRECI ATE THAT, THE BURDEN WAS ON THE LEARNED AO TO ESTABLISH THAT THE ASSESS EE HAD MADE AN INVESTMENT AND THAT THERE WERE CREDITS IN THE BOOKS OF THE ASSESSEE, AND WITHOUT DISCHARGING SUCH A BURDEN, NO ADDITION WAS SUSTAINABLE U/S 69 OF THE INCOME TAX ACT. 3. THE MAIN APPEAL IN THIS MATTER IS FOR A.Y. 2001- 02, THEREFORE, WE ARE TAKING THE FACTS OF THE SAID YEAR. IN THIS CASE , NOTICE U/S 148 OF THE INCOME TAX ACT, 1961 WAS ISSUED ON 25/3/2008 WITH P RIOR APPROVAL OF CIT (C), NEW DELHI, AFTER RECORDING REASONS TO THE SATISFACTION OF THE ASSESSING OFFICER. INFORMATION WAS RECEIVED FROM TH E INVESTIGATION WING THAT A SEARCH AND SEIZURE OPERATION WAS CONDUCTED B Y PUNJAB VIGILANCE BUREAU AT LUDHIANA PERTAINING TO THE LUDHIANA CITY CENTRE SCAM. DURING THIS OPERATION, THE PEN DRIVE WAS RECOVERED FROM SHRI CHETAN GUPTA. THE ASSESSING OFFICER OBSERVED THAT THE STU DY OF THE DATA IN THE SAID COMPUTER SHOWED THAT SH. CHETAN GUPTA WAS MAIN TAINING COMPUTERIZED ACCOUNTS OF ABOUT 148 ODD PEOPLE WHOSE MONEY AND WEALTH HE WAS ADMINISTERING. ONE OF THE NAMES CONTAINED I N THIS WAS THAT OF ASSESSEE, AS PER THE OBSERVATION OF THE ASSESSING O FFICER. THE ASSESSING OFFICER MADE AN ADDITION OF RS.11,53,200/- ON ACCOU NT OF UNEXPLAINED INVESTMENTS . 4. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASS ESSEE FILED APPEAL 13 ITA NOS. 3036 TO 3039/DEL/2015 BEFORE THE CIT(A). THE CIT (A) DISMISSED THE APPEA L OF THE ASSESSEE. 5. THE LD. AR SUBMITTED THAT THE ASSESSEE IS AN IND IVIDUAL. THE ASSESSMENT YEARS UNDER CONSIDERATION ARE AYS. 2001- 2002, 2005-2006, 2006-2007 AND 2007-2008. IN SO FAR AS THE AYS. 2001 -2002, 2005-2006 AND 2006-2007 ARE CONCERNED, THE PROCEEDINGS HAVE B EEN INITIATED U/S 148 OF THE INCOME TAX ACT, WHEREAS FOR THE AY 2007- 2008, THE ASSESSMENT HAS BEEN MADE ON THE BASIS OF RETURN OF INCOME FILED U/S 139(1) OF THE INCOME TAX ACT. IN THE APPEALS FILED, THE ASSESSEE CHALLENGED BOTH THE INITIATION OF THE REASSESSMENT PROCEEDINGS U/S 148 OF THE ACT WHICH ARE CONTENDED TO HAVE BEEN INITIAT ED WITHOUT THERE BEING THE EXISTENCE OF ANY MATERIAL FOR FORMING A R EASONS TO BELIEVE THAT THE INCOME OF THE ASSESSEE HAS ESCAPED ASSESSMENT A ND AS WELL AS ON THE MERITS OF THE ADDITIONS MADE. THE LD. AR SUBMI TTED THAT SOON THE PROCEEDINGS HAD BEEN INITIATED BY INVOKING THE PROV ISIONS OF SECTION 147 OF THE ACT, THE ASSESSEE HAD BEEN SEEKING SUCH MATE RIAL AS WERE STATED BY THE ASSESSING OFFICER IN THE REASONS TO BELIEVE TO BE HIS BASIS FOR INITIATING THE PROCEEDINGS. THE LD. AR SUBMITTED TH AT THE SAID ALLEGED MATERIAL HAD NEVER BEEN SUPPLIED TO THE ASSESSEE EV EN TILL THE FRAMING OF THE ORDER OF ASSESSMENT. THE LD. AR POINTED OUT THE SE FACTS ARE EMERGING FROM THE ASSESSMENT ORDER AND THE ORDER OF THE CIT(A) FOR WHICH WRITTEN SUBMISSIONS WERE MADE DURING THE COUR SE OF HEARING. THE LD. AR SUBMITTED THAT DESPITE THE AFORESAID REQUEST S MADE BY THE ASSESSEE, THE ASSESSING OFFICER NEVER SUPPLIED ANY SUCH ALLEGED MATERIAL, AND ON THE CONTRARY, THE ASSESSING OFFICE R MERELY STATED THAT HIS REASONS TO BELIEVE ARE BASED ON THE BASIS OF TH E INFORMATION RECEIVED FROM THE ADIT (INV.). THUS, THE LD. AR SUBMITTED TH AT THESE FACTS ARE APPARENT FROM THE REMAND REPORT DATED 29.10.2013 FO R ASSESSMENT YEAR 2001-2002 AND 2007-2008 AND 25.11.2014 FOR ASSESSME NT YEAR 2005- 2006 FURNISHED BY THE ASSESSING OFFICER BEFORE THE CIT (A). FOR WHICH 14 ITA NOS. 3036 TO 3039/DEL/2015 THE LD. AR POINTED OUT PAGE 81-82 OF THE PAPER BOOK FOR 2001 - 2002 AND 53-55 FOR ASSESSMENT YEAR 2005-2006 PAPER BOOK - I. THE LD. AR SUBMITTED THAT, THE REMAND REPORT STATED THAT INFOR MATION HAD BEEN RECEIVED FROM THE ACIT, CC-2, NEW DELHI THAT A SEAR CH AND SEIZURE OPERATION WAS CONDUCTED BY THE PUNJAB VIGILANCE BUR EAU PERTAINING TO LUDHIANA CITY CENTRE SCAM. THE LD. AR FURTHER SUBMI TTED THAT THIS OBSERVATION OF THE ASSESSING OFFICER IS NOT SUPPORT ED BY ANY DOCUMENTS. THUS THE SUBMISSION IS THAT PROCEEDINGS HAD BEEN IN ITIATED NOT ON THE BASIS OF ANY MATERIAL BUT ON THE BASIS OF MERE ALLE GED INFORMATION. THE LD. AR SUBMITS THAT UNDER SECTION 147 OF THE ACT, S INCE THE REASONS TO BELIEVE ARE TO BE OF THE ASSESSING OFFICER AND NOT OF ANY OTHER PERSON OTHER THAN HIM, NO VALID PROCEEDINGS COULD HAVE BEE N INITIATED BY HIM WITHOUT THERE BEING IN EXISTENCE OF ANY SUM TANGIBL E MATERIAL FOR A FORMATION OF ASSESSING OFFICERS REASON TO BELIEVE THAT THE INCOME OF THE ASSESSEE HAS ESCAPED ASSESSMENT. THE LD. AR FURTHER SUBMITTED THAT EVEN THE ADDITION HAS BEEN MADE BY THE ASSESSING OF FICER NOT ON THE BASIS OF ANY MATERIAL BUT MERELY ON THE BASIS OF TH E ALLEGED INFORMATION. THE LD. AR FURTHER REITERATED THAT EVEN TILL THE AS SESSMENT HAD BEEN COMPLETED NO SUCH ALLEGED MATERIAL HAS SEEN THE LIG HT OF THE DAY. 6. THE LD. AR SUBMITTED THAT IT IS THUS APPARENT TH AT THE ASSESSING OFFICER HAD NO MATERIAL OR EVIDENCE WHATSOEVER IN H IS POSSESSION OR ON HIS RECORD BUT HAD PROCEEDED TO INITIATE THE PROCEE DINGS U/S 148 OF THE ACT WITHOUT SATISFYING THE PRECONDITIONS OF THE SEC TION 147 OF THE ACT. IN FACT, IT WAS FOR THIS REASON ALONE WHILE PERMITTING THE ASSESSEE TO WITHDRAW ITS WRIT PETITION, THE HONBLE HIGH COURT PERMITTED THE PETITIONER EVEN TO RAISE ALL OBJECTIONS INCLUDING T HE VALIDITY OF THE INITIATION OF THE REASSESSMENT PROCEEDING. THE LD. AR SUBMITTED THE COPY OF THE ORDER OF THE HONBLE HIGH COURT DATED 1 1.11.2008 FOR ASSESSMENT YEAR 2001-2002 AND DATED 17.04.2012 DURI NG THE HEARING. 15 ITA NOS. 3036 TO 3039/DEL/2015 THE LD. AR FURTHER ADDED THAT SIMILARLY IN THE CASE OF THE FATHER OF THE ASSESSEE, SHRI. K. NATWAR SINGH, AND MOTHER OF THE ASSESSEE SMT. HEMINDER KUMARI, PROCEEDINGS WERE INITIATED U/S 148 OF THE ACT AND ADDITIONS HAD SIMILARLY BEEN MADE. THE CIT (A) WHIL E DISPOSING OFF THE APPEALS OF THE SAID ASSESSEES HAD HOWEVER DELETED T HE ADDITIONS SINCE HE FOUND THAT THERE WAS NO VALID MATERIAL AVAILABLE ON RECORD, BUT HAD UPHELD THE VALIDITY OF THE INITIATION OF THE REASSE SSMENT PROCEEDINGS. IN FACT IT WAS NOTED BY HIM THAT SHRI. CHETAN GUPTA WH O WAS ALLEGEDLY FOUND IN POSSESSION OF A PEN DRIVE HAD EVEN DENIED THAT HE WAS FOUND IN POSSESSION WITH ANY SUCH PEN DRIVE. THE REVENUE BEI NG AGGRIEVED FROM THE AFORESAID ORDERS HAD FILED APPEALS BEFORE THE T RIBUNAL AND THE TRIBUNAL BY ITS ORDER UPHELD THE DELETION OF THE AD DITION MADE BY THE CIT (A), BY HOLDING THAT NO ADDITION WAS WARRANTED , AS THERE EXISTED NO VALID MATERIAL FOR ASSUMING THAT ANY INVESTMENT AS ALLEGED HAD BEEN MADE AND SO ALLEGEDLY REFLECTED IN THE PEN DRIVE, M ORE PARTICULARLY WHEN EVEN SHRI. CHETAN GUPTA DENIED THE RECOVERY OF ANY SUCH PEN DRIVE. THE LD. AR THUS SUBMITTED THAT SINCE THE FACTS AND CIRC UMSTANCES OF THE CASE ARE ABSOLUTELY IDENTICAL TO THE AFORESAID CASE S AND THERE BEING NO EVIDENCE OR MATERIAL TO SUPPORT THE ADDITION MADE B Y THE ASSESSING OFFICER, THE ADDITION MADE, DOES NOT DESERVE TO BE UPHELD AND CONSEQUENTLY IT IS THE SUBMISSION OF THE LD. AR THA T EVEN THE INITIATION OF THE REASSESSMENT PROCEEDINGS U/S 148 OF THE ACT FOR THE AYS 2001- 2002, 2005-2006 & 2006-2007 DESERVES TO BE HELD AS HAVING NOT VALIDLY INITIATED. THE LD. AR SUPPORTED HIS SUBMISSIONS FRO M THE FOLLOWING JUDICIAL PRONOUNCEMENTS WHEREIN IT HAS BEEN HELD TH AT IN THE ABSENCE OF ANY TANGIBLE MATERIAL, NO VALID PROCEEDINGS COULD B E HELD SUSTAINABLE IN LAW: I. ITO VS. LAKHMANI MEWAL DAS (1976) 103 ITR 437 (SC) AT 448 II. GANGA SARAN AND SONS P. LTD. VS. ITO [1981] 130 ITR 1(SC) 16 ITA NOS. 3036 TO 3039/DEL/2015 III. ASHOK KUMAR SEN VS ITO 132 ITR 707 (DEL.) 7. THE LD. AR FURTHER SUBMITTED THAT IT IS WELL SET TLED RULE OF LAW THAT EXISTENCE OF THE TANGIBLE MATERIAL WITH THE ASSESSI NG OFFICER FOR THE FORMATION OF THE REASONS TO BELIEVE IS PRE-CONDITIO N. IN THE INSTANT CASE, IN FACT TILL MARCH, 2015 WHEN THE TRIBUNAL HAD DISPOSED OFF THE ASSESSEES FATHERS APPEAL, NO MATERIAL WAS FOUND A VAILABLE OTHER THAN THE MERE ALLEGED INFORMATION UNSUPPORTED BY ANY DOC UMENT OR SUPPORTIVE EVIDENCE. THE HONBLE HIGH COURT OF DELHI IN THE CASE OF CIT VS. SUPREME POLYPROPOLENE PVT. LTD. (ITA 266/2011 D ATED 30.10.2012) HAD STRUCK DOWN THE NOTICE ISSUED TO THE ASSESSEE U /S 148 OF THE INCOME TAX ACT ON THE GROUND THAT, THERE WAS NO MATERIAL O N RECORD WITH THE ASSESSING OFFICER WHEN HE INITIATED THE PROCEEDINGS U/S 147 OF THE ACT. IN THE JUDGMENT, IT HAS BEEN OBSERVED AS UNDER: THIS COURT NOTICES FROM THE EXTRACT OF THE REASON S TO BELIEVE REPRODUCED IN THE EARLIER PART OF THE ORDER THAT TH E A.O. ADVERTED TO A LIST, ON THE BASIS OF WHICH HE WAS OF THE OPINION T HAT, THERE WAS NO FULL AND TRUE DISCLOSURE OF ALL SOURCES OF INCOME B Y THE ASSESSEE. THERE ARE NO DETAILS OF THAT LIST. EVEN THE LIST IS NOT PART OF THE ASSESSMENT RECORD WHICH THIS COURT HAD THE BENEFIT OF CONSIDERING. MORE SHOCKINGLY, THE ASSESSMENT FILE DID NOT EVEN C ONTAIN THE FORWARDING LETTER, MUCH LESS MENTION OF THE DATE OF THAT LIST OR THE DATE OF THAT LETTER WHICH ALLEGEDLY FORWARDED THAT LIST. THE COMPLETE ABSENCE OF THESE FACTS AND ANY WHISPER AS TO EVEN A SINGLE DETAIL OF THAT LIST COUPLED WITH THE VAGUE MENTION OF A LIST, WHICH MENTIONS SOME OTHER MATERIAL ADVERTED TO IN OTHER ASSESSMENT PROCEEDINGS, IN THE OPINION OF THIS COURT CERTAINLY CANNOT BE SAID TO CONSTITUTE SUFFICIENT REASONS TO BELIEVE TO WARRANT A NOTICE U/S 148 DURING THE EXTENDED PERIOD WITHIN THE MEANING CONTEMPLATED BY LAW. THE AFORESAID JUDGMENT OF THE HONBLE HIGH COURT WA S SUBJECTED TO REVIEW PETITION (REV. PETITION NO. 215/2013, IN ITA NO.266/2011) AND THE SAID REVIEW PETITION ALSO GOT DISMISSED ON 26.04.20 13 (REPORTED IN [2013] 35 TAXMANN.COM 215 (DELHI)) BY HOLDING AS UNDER: 7. WE ARE AFRAID THAT ONCE IT IS CONCEDED ON BEHAL F OF THE REVENUE 17 ITA NOS. 3036 TO 3039/DEL/2015 THAT THE LIST WAS NOT PRODUCED BEFORE THIS COURT AT THE TIME OF THE HEARING OF THE APPEAL AND IS ONLY BEING PRODUCED AL ONG WITH THE REVIEW PETITION AFTER LOCATING THE SAME IN OTHER FI LES SUBSEQUENTLY, THEN THERE IS NO MERIT IN THE REVIEW PETITION. THIS COURT HAD PERUSED THE REASONS RECORDED BUT THE LIST WAS NOT FOUND TO BE PART OF THE ASSESSMENT RECORD WHICH WAS SEEN BY THIS COURT. THI S COURT HAD ALSO NOTED - 'SHOCKINGLY' - THAT THE ASSESSMENT REC ORD DID NOT CONTAIN EVEN THE FORWARDING LETTER ALLEGED TO HAVE BEEN WRITTEN BY THE ADIT TO THE ASSESSING OFFICER. IT WAS OPEN TO T HE REVENUE TO PRODUCE THE LIST WHEN THE APPEAL WAS HEARD BY THIS COURT, THOUGH IT WOULD HAVE BEEN EVEN THEN A MATTER OF DEBATE AS TO WHETHER, IN THE ABSENCE OF THE LIST IN THE ASSESSMENT RECORD OF THE ASSESSEE, THE REASONS FOR REOPENING THE ASSESSMENT CAN BE SAID TO HAVE BEEN PROPERLY RECORDED BY RELYING ON A LIST WHICH IS NOT FOUND IN THE ASSESSMENT RECORD. THE PRIME REQUIREMENT FOR THE VA LIDITY OF A NOTICE ISSUED UNDER SECTION 148 OF THE INCOME TAX ACT IS T HAT THE REASONS RECORDED SHOULD HAVE A LIVE LINK OR NEXUS WITH THE MATERIAL ON RECORD. THIS COURT ON AN EXAMINATION OF THE ASSESSM ENT RECORD DID NOT FIND THEREIN THE LIST ON THE BASIS OF WHICH THE REASONS WERE RECORDED. 8. THE LD. AR FURTHER SUBMITTED THAT APART FROM THE ISSUE PERTAINING TO THE INITIATION OF PROCEEDINGS U/S 148 OF THE ACT , THE MAIN ISSUE INVOLVED IN ALL THE FOUR APPEALS PERTAINS TO THE AD DITION MADE OF THE FOLLOWING SUMS: THE AFORESAID SUMS HAVE BEEN ADDED TO THE INCOME RE TURNED BY THE ASSESSEE BY INVOKING THE PROVISIONS OF SECTION 69 O F THE ACT AND ON THE GROUND THAT THE ASSESSEE HAS MADE INVESTMENT OF THE AFORESAID SUM AS IS REFLECTED IN A PEN DRIVE FOUND FROM THE POSSESSION OF ONE SHRI. CHETAN ASSESSMENT YEAR ADDITION MADE 2001-2002 RS. 11,53,200/- 2005-2006 RS. 1,84,39,002/- 2006-2007 RS. 1,73,61,108/- 2007-2008 RS. 12,97,079/- 18 ITA NOS. 3036 TO 3039/DEL/2015 GUPTA BY PUNJAB VIGILANCE BUREAU. THE LD. AR SUBMIT TED THAT IT HAS BEEN ALLEGED THAT SAID PEN DRIVE REFLECTS THAT SHRI . CHETAN GUPTA HAD RECEIVED THE AFORESAID SUMS FROM THE ASSESSEE. APAR T FROM THE ASSESSEE, IT HAD BEEN ALLEGED THAT THERE ARE 147 MORE ACCOUNT HOLDERS. IN OTHER WORDS, ON THE BASIS OF A PEN DRIVE ALLEGEDLY FOUND FROM SHRI. CHETAN GUPTA BY SPE OF PUNJAB POLICE, IT HAD BEEN ALLEGED THAT SINCE THE NAME OF THE ASSESSEE APPEARS AS JAGAT C/O BIBA JI THE AMOUNTS REFLECTED THEREIN ARE THE DEPOSITS MADE BY THE ASSESSEE. IN F ACT, IT HAS NOT EVEN BEEN IDENTIFIED WHETHER 'JAGAT C/O BIBA JI IS THE ASSESSEE IN WHOSE HANDS ADDITIONS HAVE BEEN MADE BY; ASSUMING THAT TH E CREDITS IN THE PEN DRIVE IN THE SAID ACCOUNT ARE SUMS OF INVESTMEN T MADE BY THE ASSESSEE. THE LD. AR HIGHLIGHTED THE FACT THAT EVEN THE ALLEGED OWNER OF THE ALLEGED PEN DRIVE I.E. SHRI CHETAN GUPTAF HAS N EVER IDENTIFIED THAT IT IS THIS ASSESSEE WHO HAD MADE ANY SUCH DEPOSIT WITH HIM AS IS ALLEGEDLY REFLECTED IN SUCH A PEN DRIVE. THE LD. AR HOWEVER S UBMITTED THAT THE ORDER IMPUGNED OF THE CIT (A) IS DATED 26.03.2015, WHEN HE HAD NOT THE BENEFIT OF THE ORDER OF THE TRIBUNAL IN THE CASES O F ASSESSEES FATHER SHRI K. NATWAR SINGH AND MOTHER SMT. HEMINDER KUMARI, WH EREIN THE TRIBUNAL HAVE UPHELD THE ORDER OF THE CIT (A) WHO H AD DELETED THE ADDITIONS SIMILARLY MADE ON THE IDENTICAL FACTS. TH E ORDERS OF THE TRIBUNAL ARE DATED 05.03.2015 WHICH ORDERS WERE NOT AVAILABLE WHEN THE CIT (A) HAD HEARD THE APPEALS IN FEBRUARY, 2015. HO WEVER, THE LD. AR FURTHER ADDED THAT THE ORDER OF THE TRIBUNAL IN THE CASE OF SMT. HEMINDER KUMARI IS DATED 29.08.2014 WHICH HAD NOT B EEN FOLLOWED BY THE CIT (A). THE LD. AR SUBMITTED THAT THE CIT (A) WHILE DISPOSING OFF THE ASSESSEES APPEAL, HAS NOT FOLLOWED THE ORDER OF HI S COLLEAGUES, WHO HAS DELETED THE ADDITION IN THE CASE OF ASSESSEES FATH ER AND MOTHER AS AFORESAID. THE ASSESSEE HAS PLACED IN PB-3 THE ORDE RS OF THE CIT (A) OF HIS FATHER K NATWAR SINGH AND MOTHER SMT. HEMINDAR KUMARI ALONG WITH THE ORDERS OF ASSESSMENT. THE SAID ORDERS OF THE CI T (A) WERE PLACED AT PAGES 429-465 AND 166-260 OF PB-3 RESPECTIVELY IN T HE PAPER BOOK FILED 19 ITA NOS. 3036 TO 3039/DEL/2015 BY THE ASSESSEE. THE ORDERS OF THE TRIBUNAL IN RESP ECT OF THE APPEAL FILED BY THE REVENUE IN THE CASE OF FATHER AND MOTHER OF THE ASSESSEE WERE PLACED AT PAGES 44-53 AND 54-65 RESPECTIVELY IN THE PB-2. 9. THE LD. AR FURTHER SUBMITTED THAT IN FACT WHILE DISPOSING OF THE APPEALS OF THE ASSESSEE WHICH HAD BEEN HEARD BY A D IFFERENT CIT (A) I.E. WHO HAS DISPOSED OFF THE AFORESAID APPEALS, THE CIT (A) HAS NOT FOLLOWED THE ORDER OF HIS COLLEAGUES NAMELY CIT (A) - 20 AND CIT (A) - 26 RESPECTIVELY, ON VERY FLIMSY GROUNDS AS HAS BEEN ST ATED BY HIM IN THE ORDER IMPUGNED IN PARA 5.4.7 AT PAGE 70 FOR THE AY 2001-2002 WHICH OTHERWISE TOO IS BASED ON MISREADING OF THE SAID OR DER OF THE CIT (A). THE LD. AR SUBMITTED THAT THE FINDINGS RECORDED BY THE CIT (A) IN THE IMPUGNED ORDER IN PARA 5.4.7 SHOWS THAT HE HAS ASSU MED AS IF THE ADDITIONS HAD BEEN DELETED BY THE TRIBUNAL AND HON' BLE HIGH COURT IN THE CASES OF SH. RANINDER SINGH, MAHARAJA AMRINDER SINGH AND SMT. HEMINDER KUMARI ETC. ON THE GROUND THAT AS THERE WA S NO BUSINESS LINK/ NEXUS BETWEEN SH. CHETAN GUPTA AND THE RESPECTIVE A SSESSEE HAVING BEEN BROUGHT ON RECORD, THE ADDITIONS ARE BEING DEL ETED, WHEREAS FACT OF THE MATTER IS THAT IT HAS BEEN HELD THAT THE ADDITI ONS MADE PER SE ARE WITHOUT ANY BASIS OR MATERIAL AND THE REVENUE HAS F AILED TO EVEN ESTABLISH THAT ANY INVESTMENT WAS MADE BY ANY OF TH E ASSESSEE AS WAS ALLEGEDLY REFLECTED IN THE SAID PEN DRIVE. HE IN VI EW THEREOF I.E. ON HIS ASSUMPTIONS HELD THAT THERE IS A DIFFERENCE BETWEEN THE FACTS OF THE CASE OF THE ASSESSEE AND THE FACTS IN THE CASES OF THOSE FOUR ASSESSEES IN WHOSE CASES, THE ADDITIONS HAVE BEEN DELETED. THE L D. AR SUBMITTED WITH RESPECT THAT THE CIT (A) HAS NOT AT ALL APPRECIATED THE FACTS OF THE INSTANT CASE WHICH ARE ABSOLUTELY IDENTICAL TO THE FACTS OF THE AFORESAID FOUR CASES. THERE ARE NO DISTINGUISHING FACTS. IN FACT, HE HAS COMPLETELY OVERLOOKED THAT THERE IS NO IOTA OF ANY EVIDENCE TH AT THE ASSESSEE HAS MADE ANY INVESTMENT. THE CIT (A) HAS ALSO MISCONCEI VED THE STATUTORY PROVISIONS OF SECTION 69 & 68 OF THE ACT. FURTHER, HIS FINDING THAT THERE IS 20 ITA NOS. 3036 TO 3039/DEL/2015 A BUSINESS LINK/NEXUS BETWEEN THE ASSESSEE AND SHRI CHETAN GUPTA IS ENTIRELY MISCONCEIVED. THE LD. AR SUBMITTED THAT TH ERE IS ABSOLUTELY NO BUSINESS LINK AND NEXUS BETWEEN THE ASSESSEE AND SH RI CHETAN GUPTA AND SECONDLY, EVEN IF IT IS ASSUMED FOR THE SAKE OF AN ARGUMENT THAT THERE IS A BUSINESS LINK/NEXUS (WHICH IS DISPUTED), THE CIT (A) HAS FAILED TO COMPREHEND THE PROVISIONS OF SECTION 69 OF THE A CT WHICH POSTULATES THAT BEFORE AN ADDITION CAN BE MADE, IT HAS TO BE E STABLISHED THAT AN INVESTMENT HAS BEEN MADE BY A PERSON IN WHOSE HANDS AN ADDITION IS MADE BY INVOKING THE PROVISIONS OF SECTION 69 OF TH E ACT. THE LD. AR SUBMITS THAT THE AFORESAID ADDITIONS MADE IN EACH O F THE ASSESSMENT YEARS IS MADE ONLY ON THE BASIS THAT IN A PEN DRIVE WHICH HAD 'ALLEGEDLY BEEN FOUND FROM THE POSSESSION OF SHRI CHETAN GUPTA , AND THE ASSESSEE CAN BE SAID TO HAVE MADE INVESTMENT WITH HIM SINCE THERE APPEARS A NAME OF JAGAT C/O BIBA JI. IN FACT, IT IS WELL SE TTLED RULE OF LAW THAT BEFORE MAKING THE ADDITION BY INVOKING SECTION 69 O F THE ACT, THE BURDEN RESTS ON THE REVENUE TO ESTABLISH THAT INVESTMENT H AS BEEN MADE BY AN ASSESSEE IN WHOSE HANDS ADDITIONS ARE BEING MADE. T HE HONBLE HIGH COURT OF THE DELHI IN THE CASE OF CIT VS. COMMISSIO NER OF INCOME-TAX V. NARESH KHATTAR HUF REPORTED IN 261 ITR 664 HAS HELD THAT BURDEN TO ESTABLISH THAT AN INVESTMENT HAS BEEN MADE WHILE TH E PROVISION OF THE SECTION 69 OF THE ACT IS ON THE REVENUE. IN THE FOL LOWING JUDICIAL PRONOUNCEMENTS, IT HAS BEEN HELD LIKEWISE THAT WHIL E INVOKING THE PROVISIONS OF SECTION 69C OF THE ACT, THE BURDEN IS ON THE REVENUE. THE TEXTURE AND COLOUR OF BOTH THE PROVISIONS ARE SAME: (A) CIT VS DAYA CHAND JAIN (ALLAHABAD HC) REPORTED IN 98 ITR 280. (B) CIT VS. DR. S. BHARTI 254 ITR 261 (DEL) (C) CIT VS N. SWAMY (MADRAS HIGH COURT) REPORTED IN 241 ITR 363. (D) RAJPAL SINGH RAM AVTAR VS. ITO 39 TTJ544 21 ITA NOS. 3036 TO 3039/DEL/2015 10. THE LD. AR FURTHER SUBMITTED THAT IT HAS LIKEWI SE BEEN HELD BY THE HONBLE ORISSA HIGH COURT IN THE CASE OF AUROBINDO SANITARY VS. CIT, 276 ITR 549, THAT FOR APPLYING SECTION 69 OF THE AC T, THE ASSESSING OFFICER MUST FIRST COME TO A FINDING THAT THE ASSES SEE MADE INVESTMENTS WHICH WERE NOT RECORDED IN THE BOOKS OF ACCOUNT AND THEREAFTER CALL FOR AN EXPLANATION FROM THE ASSESSEE ABOUT THE NATURE A ND SOURCE OF THE INVESTMENTS. IT IS THUS IMPLICIT THAT THE ASSESSING OFFICER HAS TO FIRSTLY BRING EVIDENCE ON RECORD TO ESTABLISH THAT AN INVES TMENT HAS BEEN MADE BY THE ASSESSEE. IT IS ONLY UPON HAVING ESTABLISHED THAT INVESTMENT HAVING BEEN MADE BY THE ASSESSEE, THE QUESTION ARIS ES TO CALLING UPON THE ASSESSEE TO EXPLAIN THE NATURE AND SOURCE OF SU CH INVESTMENT. THE LD. AR SUBMITTED THAT IN THE INSTANT CASE, NO SUCH MATERIAL HAS BEEN BROUGHT ON RECORD TO ESTABLISH THAT THE ASSESSEE HA S MADE AN INVESTMENT WHICH IS SOUGHT TO BE ADDED. FURTHER, TH E HONBLE GUJARAT HIGH COURT IN ITS JUDGMENT IN THE CASE OF USHAKANT N. PATEL VS. CIT 282 ITR 553, HAVE HELD THAT SECTION 69 OPENS WITH THE WORDS WHERE IN THE FINANCIAL YEAR IMMEDIATELY PRECEDING THE ASSESSMENT YEAR, THE ASSESSEE HAS MADE INVESTMENT . THUS, IN THE FIRST INSTANCE IT IS INCUMBENT UPON (E) GHANSHYAM DASS HASANAND 28 TAXMAN 219 (MAG) (MUM) (F) ASHOK KUMAR RASTOGI VS. CIT 100 CTR 204 (ALL) (G) NEENA SYAL VS. ITO 70 ITD 62 (CHD) (H) ACIT VS. LAKSHMI PRINTING CO. 46 TTJ 177 (CHD) (I) JAI SHARDA RICE MILLS VS. ITO 36 ITD 254 (ASR) G) ITO VS. HAR PREET INDUSTRIES 59 ITD 346 (CHD) (K) RAMNIK LAI & BROS VS. ITO 81 TAXMAN 26 (ALL) (MAG) 22 ITA NOS. 3036 TO 3039/DEL/2015 THE AUTHORITY TO ESTABLISH THAT THERE WERE INVESTME NTS MADE BY THE ASSESSEE; THAT SUCH INVESTMENTS WERE NOT RECORDED I N THE BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE; AND THAT, SUCH INVESTMENTS HAD BEEN MADE IN THE FINANCIAL YEAR IMMEDIATELY PRECEDI NG THE ASSESSMENT YEAR IN QUESTION. IN THE INSTANT CASE, AS STATED AB OVE, NO EVIDENCE HAS BEEN BROUGHT ON RECORD TO SUPPORT THAT ASSESSEE HAS MADE ANY SUCH INVESTMENT. IT IS THUS EVIDENT THAT THE BURDEN IS U PON THE REVENUE FIRST TO ESTABLISH THAT THE INVESTMENT HAS BEEN MADE WHIC H ARE NOT RECORDED IN THE BOOKS. IN THE INSTANT CASE, VERY FOUNDATION OF ESTABLISHING THAT AN INVESTMENT HAS BEEN MADE BY THE ASSESSEE IN THE FINANCIAL YEAR IS ITSELF LACKING. FURTHER THE HONBLE BOMBAY HIGH COURT IN ITS JUDGME NT IN THE CASE OF BABULAL C. BORANA VS. ITO 282 ITR 251 HELD THAT UNDER SECTION 69 OF THE ACT AN ADDITIONS ON ACCOUNT OF UN EXPLAINED INVESTMENTS CAN BE MADE AS DEEMED INCOME, IF IT EST ABLISHED THAT ASSESSEE HAS MADE INVESTMENT WHICH ARE NOT RECORDED IN THE BOOKS MAINTAINED BY THE ASSESSEE. IT IS WELL SETTLED THAT THE BURDEN IS ON THE PERSON WHO MAKES ALLEGATION AND TO DISCHARGE HIS BU RDEN IT IS HE WHO HAS TO LEAD POSITIVE EVIDENCE AND THE MERE FACT THE RE ARE CERTAIN ENTRIES IN THE BOOKS OF ACCOUNTS OF THIRD PARTY IS INSUFFIC IENT TO MAKE ADDITION ON THE GROUND THAT ASSESSEE HAD MADE INVESTMENT. TH E LD. AR SUBMITTED THAT THIS FINDING OF THE CIT (A) DELETING THE ADDITION MADE ON THE AFORESAID BASIS HAS BEEN UPHELD BY THE TRIBUNAL AS IS EVIDENT FROM ITS ORDER WHEN IT HAS EXTRACTED PARA 24 OF THE CIT (A)S ORDER. IN THE INSTANT CASE THERE IS NO IOTA OF EVIDENCE THAT IT I S THE ASSESSEE WHO HAS MADE INVESTMENT. EVEN THE ASSESSEE HAS NOT BEEN IDE NTIFIED NOR IS THERE ANY ALLEGATION BY SHRI CHETAN GUPTA THAT IN THE PEN DRIVE ALLEGED TO BE HIS, THERE ARE DEPOSITS RECEIVED BY HIM FROM THE AS SESSEE. IT IS REALLY SURPRISING THAT ON WHAT BASIS THE ASSESSING OFFICER PROCEEDED TO ASSUME FROM THE EXPRESSION JAGAT C/O BIBA JI TO BE THE NAME OF THE ASSESSEE OR THE ACCOUNTS PERTAIN TO THE ASSESSEE OR THAT HE HAS MADE SUCH INVESTMENT. AT THIS STAGE IT IS NECESSARY TO S UBMIT THAT IF THERE ARE 23 ITA NOS. 3036 TO 3039/DEL/2015 CREDITS IN THE BOOKS OF THE ASSESSEE THEN IT IS FOR THAT ASSESSEE TO EXPLAIN THE NATURE AND SOURCE OF THE CREDIT AS IS P ROVIDED U/S 68 OF THE ACT. IN SUCH CIRCUMSTANCES, THE LD. AR SUBMITTED TH AT THE CIT (A) WENT INTO AN ERROR IN SUSTAINING THE ADDITION WHICH IS A COMPLETE MISDIRECTION IN LAW. THE LD. AR FURTHER SUBMITS THA T THE CIT (A) HAS MISCONSTRUED THE PROVISIONS OF SECTIONS 68 AND 69 O F THE INCOME TAX ACT. THE FINDINGS RECORDED THEREIN ARE RESULT OF CO MPLETE MISDIRECTION IN LAW. HIS FINDING THAT THERE ARE CERTAIN ENTRIES REF LECTED IN THE ALLEGED ACCOUNT OF THE ASSESSEE SHOWS THAT HE I.E. ASSESSEE HAD MADE INVESTMENT. HOWEVER, HE IGNORES THAT THERE IS NO MA TERIAL TO ESTABLISH THAT IT WAS THIS ASSESSEE WHO HAD MADE SUCH AN ALLE GED INVESTMENT. THUS STATUTORILY THE LAW ENJOINS BY DEEMING PROVISI ON AND NOT TO BE TAXED IN THE HANDS WHERE APPEARS TO BE CREDIT AND N OT A DEEMED INCOME OF THE PERSON IN WHOSE NAME CREDITS ARE SHOWN OR RE FLECTED. THUS THE FACT, IT HAS BEEN ALLEGED, THERE ARE CREDITS IN THE ACCOUNTS OF THE ASSESSEE AS PER THE PEN DRIVE, BUT THE SAME DOES NO T ESTABLISH THAT IT WAS THIS ASSESSEE WHO HAS MADE SUCH INVESTMENT. THE FINDING OF THE CIT (A) THAT ADDITION U/S 68 OF THE ACT IS MADE ALW AYS BECAUSE OF THE CONCERNED ASSESSEE HAVING FAILED TO SUBSTANTIATE TH E CREDITS. IT SHOWS THE LEGISLATIVE INTEND TO TREAT THE CREDIT OF THE P ERSON WHERE THERE ARE CREDITS AND ARE SO REFLECTED IN HIS BOOKS OF ACCOUN TS. HIS FURTHER FINDING THAT THE SAME DOES NOT SHOW HIS OWNERSHIP, IS COMPL ETELY MISCONCEIVED. IN ANY CASE THE FACT OF THE MATTER WILL REMAIN THAT OWNERSHIP OF THE AMOUNT OF THE PERSON OTHER THAN A PERSON IN WHOSE B OOKS THE CREDITS ARE, TO BE ESTABLISHED BY LEADING EVIDENCE. IN THIS CASE, WHAT IS THE EVIDENCE WHICH ESTABLISHES THE OWNERSHIP OF THE ASS ESSEE IS NOT KNOWN AND THUS THE FURTHER FINDINGS OF THE CIT (A) THAT S INCE THE PERSON IN WHOSE BOOKS THE CREDITS ARE, FAILS TO EXPLAIN THE S AME, THERE BECOME A CREDIT IN THE ACCOUNT OF THAT ASSESSEE NAMELY THE C REDITOR, IS EVIDENTLY A COMPLETE MISUNDERSTANDING OF STATUTORY PROVISIONS C ONTAINED IN SECTION 68 OF THE ACT. THE LD. AR THUS SUBMITS THAT THERE I S A COMPLETE 24 ITA NOS. 3036 TO 3039/DEL/2015 MISCONSTRUCTION OF THE PROVISIONS OF SECTIONS 68 AN D 69 OF THE ACT AND THE FINDINGS HAD BEEN RECORDED NOT ONLY WITHOUT ANY AUTHORITY OF LAW BUT IN AN ARBITRARY MANNER. THERE CAN BE NO PRESUM PTION OF AN INVESTMENT HAVING BEEN MADE UNLESS THE SAME IS ESTA BLISHED BY COGENT, POSITIVE AND IMPEACHABLE EVIDENCE. IN THE INSTANT C ASE, THERE IS NOT EVEN ANY ASSERTION BY SHRI CHETAN GUPTA THAT THE AS SESSEE HAS MADE INVESTMENT WITH HIM. ON THE CONTRARY ALL WHAT HAS H APPENED IS THAT AS A RESULT OF A PEN DRIVE FOUND FROM SHRI. CHETAN GUP TA WHICH PEN DRIVE WAS STATED TO HAVE BEEN AVAILABLE TO SPE I.E. SPECI AL POLICE ESTABLISHMENT BY AN ANTI CORRUPTION SQUAD, CERTAIN SUMS WERE SHOWN TO HAVE BEEN REFLECTED AS RECEIPT WHICH WERE ALLEGEDLY RECEIVED BY HIM FROM 148 PERSONS. THE FACT OF THE MATTER REMAINS IS THAT EVEN THERE IS A DENIAL OF SUCH EVIDENCE AVAILABLE WITH SPECIAL POLI CE ESTABLISHMENT. THIS FACT IS BORNE OUT FROM THE STATEMENT OF SHRI C HETAN GUPTA RECORDED BY ASSESSING OFFICER. IN VIEW OF THESE FACTS, THE L D. AR SUBMITTED THAT THE CIT (A) WHILE CONFIRMING THE ADDITION HAS NOT O NLY ATTEMPTED TO SUSTAIN THE ADDITION BUT WAS FURTHER WRONG WHEN HE HELD THAT THERE IS A DIFFERENCE BETWEEN THE CASE OF THE ASSESSEE AND FOU R OTHERS IN WHOSE CASES, THE ADDITIONS HAS BEEN DELETED WHICH ADDITIO NS HAVE BEEN MADE IN IDENTICAL MANNER AND FOR SIMILAR REASONS. THE ST ATUS OF THE ADDITIONS MADE AND DELETED ARE TABULATED BELOW: STATUS OF ADDITIONS MADE IN THE CASES OF K. NATWAR SINGH HEMINDER KUMARI AMRINDER SINGH RANENDER SINGH A.Y PAGE OF PB III A.Y PAG E OF PB III AY PAG E AY PAG E 2003-04 RS. 30,50,000/- 273- 279 2002-03 RS.34,83,206 1-7 2001- 2002 RS. 8,12,000 - 2001-02 RS. 76,45,000 - 2004-05 RS. 280- 283 2003-2004 RS.23,06,00 8- 15 NA - NA - 25 ITA NOS. 3036 TO 3039/DEL/2015 1,02,66,159/- 0/- 2005-06 RS.2,10,01,194 /- 284- 290 2004-05 RS. 44,56,000 16- 21 NA - - 2005-06 RS. 2,33,86,194 22- 29 11. THE LD. AR FURTHER SUBMITTED THAT THE CIT (A) I N HIS ORDER HAS INCORRECTLY STATED THAT THERE EXISTS A CLEAR LINK B OTH SOCIAL AND BUSINESS/FINANCIAL BETWEEN SH. CHETAN GUPTA AND ASS ESSEE. THE LD. AR SUBMITTED THAT THERE IS ABSOLUTELY NO LINK MUCH LES S CLOSE LINK EITHER SOCIALLY OR FINANCIALLY. THE CIT (A) ERRED IN OBSER VING IN PARA 5.4.8 THAT THE ASSESSEE IS HAVING A REGULAR BUSINESS RELATIONS HIP WITH SH. CHETAN GUPTA, SINCE THE ASSESSEE WAS IN CONTROL AND HAD UT ILIZED THE MERCEDES AND PAJERO VEHICLES OF CHETAN GUPTAS CONCERNS. THE LD. AR FURTHER SUBMITTED THAT THE ASSESSEE HAD TAKEN ON LEASE THE TWO VEHICLES FROM M/S TRANS AIR AND M/S NIKUNJ AGRO AND NOT FROM SHRI . CHETAN GUPTA WHEREIN SH CHETAN GUPTA WAS EITHER A SHAREHOLDER OR A PARTNER. THE MERE FACT THAT THE ASSESSEE HAD TAKEN ON LEASE THE AFORESAID TWO CARS FROM THE COMPANY OR THE FIRM IN WHICH SHRI CHETAN G UPTA HAD INTEREST, IT IS SUBMITTED IT DOES NOT ESTABLISH ANY CLOSE ASS OCIATION OR BUSINESS CONNECTION WITH EACH OTHER. IN ANY CASE IT IS SUBMI TTED THAT THE SAME IS WHOLLY AN IRRELEVANT CONSIDERATION IN DECIDING THE ISSUE OF AMOUNT ALLEGED TO HAVE BEEN INVESTED BY THE ASSESSEE AND I S ALLEGEDLY STATED TO BE REFLECTED IN THE PEN DRIVE. ON THE CONTRARY, IT IS AN ADMITTED FACT THAT IN THE ALLEGED PEN DRIVE FOUND FROM THE POSSESSION OF SHRI CHETAN GUPTA, THERE WERE 148 ACCOUNTS HOLDERS FROM WHERE I T HAD BEEN ALLEGED THAT HE HAS RECEIVED FUNDS FROM 148 PERSONS. HOWEVE R EVEN THE ALLEGATION OF HAVING RECEIVED ANY SUCH SUM FROM ANY PERSON HAS NOT 26 ITA NOS. 3036 TO 3039/DEL/2015 BEEN EVER ESTABLISHED BY THE REVENUE AND THUS THE A LLEGATION THAT SPE FOUND A PEN DRIVE FROM THE POSSESSION OF SH. CHETAN GUPTA HAS NOT EVEN BEEN ESTABLISHED, WHICH HAS BEEN DENIED BY SHRI. CH ETAN GUPTA, AS IS EVIDENT FROM HIS STATEMENT WHICH WAS PLACED AT PAGE 1 & 2 OF THE PB-2. THE LD. AR THUS SUBMITS THAT THE CIT (A) HAS ERRED BOTH IN LAW AND ON FACTS IN SUSTAINING THE ADDITION IN THE HANDS OF TH E ASSESSEE OF THE SUMS ALLEGED TO HAVE BEEN FOUND, AND REFLECTED IN THE AL LEGED PEN DRIVE AND ALLEGEDLY FOUND FROM SH. CHETAN GUPTA. TO SUPPORT T HE AFORESAID SUBMISSION, THE ORDERS OF THE TRIBUNAL, ALL OF WHIC H HAVE BEEN PLACED AT THE PB-2, WHICH HAS NOT EVEN BEEN APPEALED AGAINST BY THE REVENUE, IF ARE CLOSELY PERUSED, IT WOULD BE SEEN THAT THE TRIB UNAL IN PARA 14 PAGE 51 OF THE PB-2 AS REFERRED TO THE STATEMENT OF SHRI CHETAN GUPTA WHEREIN HE HAD DENIED OF HAVING ANY TRANSACTION. TH US THE FACTS REMAINED IDENTICAL WITH THE FACTS OF THE AFORESAID CASES. IN VIEW THEREOF, THE LD. AR SUBMITTED THAT THE FACTS BEING IDENTICAL WITH THAT OF ASSESSEES FATHER SHRI K. NATWAR SINGH, AND HIS MOT HER SMT. HEMINDER KUMARI, THE ADDITION SUSTAINED ARE ENTIRELY UNSUSTA INABLE AND DESERVES TO BE DELETED. IN FACT IN THE CASES OF SHRI K NATWA R SINGH, THE AMOUNT IS REFLECTED UNDER THE NAME NS, WHEREAS IN THE CASE HE MINDER KUMARI IT IS REFLECTED IN THE LEDGER ACCOUNT AS PER PEN DRIVE UN DER THE NAME OF KIRAN/BIBA AND ALLEGEDLY FOR THE ASSESSEE IN THE NA ME OF JAGAT C/O BIBA JI'. IN FACT THIS ITSELF SHOWS THAT THERE ARE NO CREDIT ENTRY AT ALL IN THE NAME OF ASSESSEE SHRI JAGAT SINGH. THE LD. AR S UBMITS THAT THE ASSESSING OFFICER SERIOUSLY BELIEVES JAGAT AND KIRA N ARE THE NAMES OF BUSINESS CONCERNS WHICH WERE RUN BY SHRI CHETAN GUP TA AND HIS FAMILY. THIS IS EVIDENT FROM THE ORDER OF THE TRIBUNAL DATE D 21.06.2013 IN THE CASE OF SHRI. CHETAN GUPTA [2013] 144 ITD 344 (DELH I - TRIB.). THE LD. AR SUBMITTED THAT BEFORE ANY ADDITION COULD HAVE BE EN MADE AT LEAST IT HAD TO BE IDENTIFIED THAT JAGAT C/O BIBA JI IS THE ASSESSEE. THE ASSUMPTIONS & PRESUMPTIONS HAVE NO ROLE TO PLAY FOR MAKING ANY ADDITION WHICH IS WELL KNOWN TO BE AN ARBITRARY AND VINDICTIVE ACT. THUS 27 ITA NOS. 3036 TO 3039/DEL/2015 EVEN THE ALLEGATION THAT THERE WERE CREDITS IN THE ALLEGED PEN DRIVE OF SHRI CHETAN GUPTA DOES NOT ESTABLISHES THAT THERE W AS ANY CREDIT FROM THE ASSESSEE I.E. SHRI JAGAT SINGH WHO IS A SITTING MEMBER LEGISLATIVE ASSEMBLY OF RAJASTHAN. 12. THE LD. AR FURTHER SUBMITTED THAT WHEREVER THER E ARE CREDIT APPEARING IN THE BOOKS OF AN ASSESSEE, THE ONUS IS ON HIM TO ESTABLISH WHETHER THE CREDIT ARE GENUINE BY ESTABLISHING THE IDENTITY AND CREDITWORTHINESS OF THE CREDITOR AS IS ENVISAGED U/ S 68 OF THE ACT. IN FACT IT IS FOR SHRI. CHETAN GUPTA IN WHOSE BOOKS OF ACCO UNTS THERE WERE ALLEGED CREDITS, TO HAVE ESTABLISHED BY COGENT EVID ENCE THAT THE CREDITS APPEARING IN HIS BOOKS OF ACCOUNTS ARE GENUINE BOTH BY ESTABLISHING THE SOURCE OF CREDITS AND THE GENUINENESS OF THE TRANSA CTION SO WELL THE IDENTITY OF THE CREDITOR. IN THE INSTANT CASE, IT H AS IN FACT NOT EVEN BEEN ASSERTED BY SH. CHETAN GUPTA THAT HE HAS RECEIVED A NY SUCH CREDIT FROM THE ASSESSEE. BE THAT AS IT MAY, HOWEVER, UNDER SEC TION 69 OF THE ACT WHICH READS AS UNDER; CLEARLY PROVIDES THAT WHERE A N ASSESSEE HAS MADE INVESTMENT WHICH ARE NOT RECORDED IN THE BOOKS OF A CCOUNT, THE VALUE OF THE INVESTMENTS MAY BE DEEMED TO BE THE INCOME OF T HE ASSESSEE OF SUCH FINANCIAL YEAR. EXTRACTS OF SECTION 69 ARE AS FOLLO WS: 'WHERE IN THE FINANCIAL YEAR IMMEDIATELY PRECEDING THE ASSESSMENT YEAR THE ASSESSEE HAS MADE INVESTMENTS WHICH ARE NOT RECORDE D IN THE BOOKS OF ACCOUNT, IF ANY, MAINTAINED BY HIM FOR ANY SOURCE O F INCOME, AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE OF THE INVESTMENTS OR THE EXPLANATION OFFERED BY HIM IS NO T, IN THE OPINION OF THE ASSESSING OFFICER, SATISFACTORY, THE VALUE OF THE I NVESTMENTS MAY BE DEEMED TO BE THE INCOME OF THE ASSESSEE OF SUCH FINANCIAL YEAR. 13. THE LD. AR SUBMITTED THAT IT HAS BEEN HELD IN T HE JUDICIAL PRONOUNCEMENTS CITED ABOVE THAT SUCH BURDEN TO ESTA BLISH THAT INVESTMENT HAS BEEN MADE IS ON THE REVENUE. IN THE INSTANT CAS E, THERE IS ABSOLUTELY NO 28 ITA NOS. 3036 TO 3039/DEL/2015 EVIDENCE MUCH LESS EVEN AN ALLEGATION BY SHRI. CHET AN GUPTA THAT THE ASSESSEE HAD MADE AN INVESTMENT. THE REVENUE HAS AL SO NOT BROUGHT ON RECORD ANY STATEMENT WHEREIN IT WAS ALLEGED BY SH. CHETAN GUPTA THAT ASSESSEE HAD MADE INVESTMENT NOR ANY EVIDENCE HAS B EEN BROUGHT ON RECORD BY REVENUE IN RESPECT THEREOF. IN SUCH CIRCUMSTANCE S, STATUTORILY BY NO STRETCH OF IMAGINATION, THE ASSESSING OFFICER COULD NOT HAV E MADE ANY SUCH ADDITION AND THE CIT (A) HAS THUS ERRED WHEN HE HAD NOT DELE TED THE ADDITION AS HIS PREDECESSOR HAD DONE BUT GROSSLY ERRED IN SUSTAININ G THE ADDITION ON FLIMSY GROUNDS I.E. THE ASSESSEE HAS SINCE BOTH SOCIAL AND BUSINESS/FINANCIAL RELATIONSHIP. EVEN ASSUMING THAT IT WAS SO, THEN HO W DOES THE SAME CAN BE MADE ANY BASIS TO ASSUME, CONCLUDE AND EVEN SUSPECT THAT IT WAS THE ASSESSEE WHO HAD MADE INVESTMENT. THE LD. AR SUBMIT TED THAT NOT ONLY IT IS ARBITRARY BUT IS HILARIOUS. THUS, THE LD. AR PRAYS THAT IN VIEW OF THE ORDERS OF THE TRIBUNAL IN THE CASES OF SH. RANINDER SINGH, MA HARAJA AMRINDER SINGH, SMT. HEMINDER KUMARI AND SHRI K. NATWAR SINGH, THE ADDITION SUSTAINED BY THE CIT (A) IS EVIDENTLY IS A RESULT OF PERVERSITY. THE CIT (A) HAS FAILED TO COMPREHEND THAT BURDEN RESTS ON THE ASSESSING OFFIC ER AND NOT ON THE ASSESSEE TO ESTABLISH THAT THE ASSESSEE HAD MADE AN INVESTMENT. THE BURDEN SHIFTS ON THE ASSESSEE ONLY WHEN IT HAS BEEN ESTABL ISHED BY HIM WITH POSITIVE EVIDENCE THAT ASSESSEE HAS MADE INVESTMENT TO EXPLA IN THE NATURE AND SOURCES THEREOF. THE LD. AR SUBMITTED THAT IN THE I NSTANT CASE, HAD THE ASSESSEE MADE ANY SUCH INVESTMENT AS IS ALLEGED, OB VIOUSLY THERE WOULD HAVE BEEN DISINVESTMENT TOO, FOR WHICH NO EVIDENCE HAS B EEN BROUGHT ON RECORD WHICH SHOWS THAT ASSESSEE HAD RECEIVED ANY SUM ON M AKING SUCH DISINVESTMENT. THUS, THE LD. AR SUBMITTED THAT THE BURDEN LAY UPON THE REVENUE TO ESTABLISH THAT THE AMOUNT REFLECTED IN T HE PEN DRIVE OF SHRI CHETAN GUPTA WAS THE INVESTMENT MADE BY THE ASSESSEE. THE LD. AR SUBMITTED THAT SUCH A BURDEN HAS NOT BEEN DISCHARGED AND THE ADDIT ION HAS BEEN SUSTAINED IN AN ARBITRARY MANNER WITH NO LOGIC. 29 ITA NOS. 3036 TO 3039/DEL/2015 14. THE LD. AR SUBMITTED THAT THE CIT (A) HAS FURTH ER FAILED TO APPRECIATE THAT SECTION 68 OF THE ACT IS APPLICABLE ONLY WHERE THERE ARE CREDITS IN THE BOOKS OF THE ASSESSEE AND NOT ELSEWHERE. IN FACT TH E HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. BHAICHAND H. GANDHI RE PORTED IN 141 ITR 67 HAVE HELD THAT EVEN THE BANK ACCOUNT OF THE ASSESSEE IS NOT THE BOOKS OF THE ASSESSEE AND HAD THUS DELETED THE ADDITION BY HOLDI NG THAT SECTION 68 OF THE ACT IS INAPPLICABLE. FURTHER THE HIGH COURT OF PUNJ AB AND HARYANA IN THE CASE OF SMT. SHANTA DEVI VS CIT REPORTED IN 171 ITR 532 HAVE HELD THAT EVEN THE BALANCE SHEET IS NOT THE BOOKS OF THE ASSESSEE. IN SUCH CIRCUMSTANCES, THE CIT (A) HAS GROSSLY ERRED IN HOLDING THAT SECTION 68 OF THE ACT COULD BE MADE APPLICABLE. IT IS AGAIN WELL SETTLED RULE OF LAW AS HAS BEEN APPLIED BY THE HON'BLE TRIBUNAL IN THE CASES REFERRED TO ABOVE THA T NO ADDITION CAN BE MADE ON THE BASIS OF THE ENTRIES IN THE THIRD PARTIES BO OKS OF ACCOUNT WHICH ARE UNSUPPORTED BY ANY MATERIAL. IN THIS CONTEXT, REFER ENCE IS INVITED TO THE FOLLOWING JUDICIAL PRONOUNCEMENTS: I. PRAKASH CHAND NAHTA V. CIT 301 ITR 134 II. CIT V. SALEK CHAND 300 ITR 426 (ALL) III. SMC SHARE BROKER LTD. 288 ITR345 (DEL) IV. JMD COMPUTERS 20 DTR 317 15. BEFORE CONCLUDING THE LD. AR SUBMITTED THAT THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. PRADEEP KUMAR GUPTA 303 ITR 95, WHEREIN AT PAGE 98 HAS HELD AS UNDER: THIS IS WHERE THE FAILURE OF THE REVENUE TO PRODUC E SHRI ANAND PRAKASH FOR CROSS-EXAMINATION BY THE ASSESSEE, ASSUMES FATAL CO NSEQUENCES. REASSESSMENT PROCEEDINGS HAVE BEEN INITIATED AFTER SEVERAL YEARS OF THE ACCEPTANCE OF THE RETURN UNDER SECTION 143(1) OF TH E INCOME-TAX ACT. THE ASSESSEE HAVE THEMSELVES RELIED ON THE BANKING TRAN SACTIONS BETWEEN THEMSELVES AND SHRI ANAND PRAKASH; SECONDLY, ON BIL LS ISSUED BY THEM TO SHRI ANAND PRAKASH, AND ON THE UNASSAILED PAYMENT O F RENT TO SHRI MOOL 30 ITA NOS. 3036 TO 3039/DEL/2015 CHAND. IT IS TRUE THAT THE ASSESSEES' FAILURE TO PR ODUCE SHRI KISHAN CHAND HAD THE CONSEQUENCE OF NOT PROVING THAT THE SAID PE RSON WAS TILLING THE LAND ON THEIR BEHALF. THIS FAILURE CANNOT INEXORABLY LEA D TO THE CONCLUSION THAT NO AGRICULTURAL INCOME HAD BEEN GENERATED BY THE ASSES SEE. SUCH AN INFERENCE CAN ONLY BE DRAWN FROM THE STATEMENT OF SHRI ANAND PRAKASH TO THE EFFECT THAT THE TRANSACTIONS BETWEEN HIM AND THE ASSESSEES WERE BOGUS. THEREFORE, IT WAS MANDATORY FOR THE REVENUE TO PRODUCE SHRI AN AND PRAKASH FOR CROSS- EXAMINATION BY THE ASSESSEE ON THEIR SPECIFIC DEMAN D IN THIS REGARD. THE FACTS ON WHICH THE DECISION TO INVOKE SECTION 147/1 48 IS PREDICATED MAY IN SOME CASES BE SUFFICIENT BOTH FOR DECISION TO CARRY OUT A REASSESSMENT AS WELL TO JUSTIFY OR SUSTAIN THE FRESH ASSESSMENT. HO WEVER, THERE MAY WELL BE INSTANCES WHERE THE FORMER SAID REOPENING MAY PASS MUSTER IN THE LIGHT OF SOME FACTS, BUT THOSE FACTS BY THEMSELVES MAY TURN OUT TO BE INSUFFICIENT TO PRESERVE THE ASSESSMENT ITSELF. ONCE SECTIONS 147 A ND 148 ARE RESORTED TO, THE ASSESSING OFFICER MUST FIRST DISCHARGE THE BURD EN OF SHOWING THAT INCOME HAS ESCAPED ASSESSMENT. IT IS ONLY THEREAFTER THAT THE ASSESSEE HAS TO PROVIDE ALL THE ANSWERS. WE FIND NO REASON WHY THE INITIAL BURDEN OF PROOF SHOULD NOT REST ON THE ASSESSING OFFICER EVEN WHERE THE ASSESSMENT HAS GONE THROUGH UNDER SECTION 143(3) OF THE ACT. THE T RIBUNAL HAS, THEREFORE, ARRIVED AT THE CORRECT CONCLUSION. (EMPHASIS SUPPLI ED) 16. THE LD. AR SUBMITTED THAT IN THE INSTANT CASE R EVENUE HAS NEVER BROUGHT ANY ADVERSE STATEMENT AGAINST THE ASSESSEE OF SHRI CHETAN GUPTA MUCH LESS HAVING PRODUCED HIM FOR ASSESSEES EXAMIN ATION SO THAT ASSESSEE COULD HAVE ESTABLISHED IN REBUTTAL THE ALLEGATION O F THE REVENUE THAT SUCH INVESTMENT HAS BEEN MADE BY THE ASSESSEE WHICH HAS BEEN THE SUM ADDED IN THE HANDS OF THE ASSESSEE. THE LD. AR SUBMITTED THA T CIT (A) HAS FURTHER ERRED IN FAILING TO COMPREHEND THAT THE ALLEGED STA TEMENT OF SHRI. CHETAN GUPTA WHICH HAS BEEN REFERRED BY THE ASSESSING OFFI CER IS OF NO ASSISTANCE AND IS ABSOLUTELY INADMISSIBLE AS SUCH STATEMENT WA S RECORDED UNDER SECTION 161 OF THE CR. P.C. AND HENCE ASSESSING OFFICER AND CIT (A) BOTH HAVE ERRED IN LAW IN RELYING A STATEMENT WHICH IS INADMISSIBLE IN LAW. FURTHER SUCH STATEMENT WAS NEVER CONFRONTED TO THE ASSESSEE AND HAS NOT SEEN THE LIGHT OF 31 ITA NOS. 3036 TO 3039/DEL/2015 THE DAY AS SUCH, EVEN OTHERWISE, SUCH EVIDENCE CANN OT BE RELIED. THE LD. AR RELIED UPON THE FOLLOWING JUDGMENTS: I. ANDAMANTIMBER INDUSTRIES V. CCE [2015] 127 DTR 241 (SC) II. KISHINCHAND CHELLARAM V. CIT. [1980] 125 ITR 713 (S C). THE LD. AR FURTHER SUBMITTED THAT IN RESPECT OF INI TIATION OF THE REASSESSMENT PROCEEDINGS, ASSESSEE HAS MADE ITS DETAILED SUBMISS IONS BEFORE THE CIT (A) WHO HAS EXTRACTED SUCH SUBMISSIONS AT PAGE 6 TO 18 (IN THE ORDER OF THE CIT (A) FOR THE AY 2005- 2006), AND FOR THE SAKE OF BRE VITY, SUCH SUBMISSIONS ARE NOT REPEATED HERE AND IS PRAYED THAT IN RESPECT OF THE REOPENING OF THE ASSESSMENT, THE CONTENTION MADE BY THE ASSESSEE BEF ORE THE CIT (A) MAY KINDLY TAKEN AS SUBMISSIONS IN RESPECT OF THE GROUN DS CHALLENGING THE REOPENING OF THE ASSESSMENT. 17. APART FROM THE SUBMISSIONS OF THE LD. AR IN RES PECT OF OTHER GROUNDS OF APPEAL RAISED IN THE MEMO OF APPEAL FOR THE RESPECT IVE ASSESSMENT YEARS ARE AS UNDER: ITA NO. 3037/DEL/2015 AY 2005-2006 18. AS REGARDS TO GROUND NO. 5, THE LD. AR SUBMITTED THAT DURING THE YEAR UNDER CONSIDERATION, APPELLANT HAS RECEIVED SALARY FROM RAJASTHAN VIDHAN SABHA FOR MEMBER OF THE HOUSE AT RS. 2.60,262/- AND SUCH INCOME WAS DECLARED AS SALARY, WHEREIN A STANDARD DEDUCTION OF RS. 30,000/- WAS CLAIMED. SUCH CLAIM WAS DISALLOWED BY HOLDING THAT THERE IS NO EMPLOYER EMPLOYEE RELATIONSHIP AND HENCE SALARY FROM RAJASTHAN VIDHAN SABHA FOR MEMBER OF THE HOUSE OF RS. 2,60,262/- WAS TREATED AS INCOME F ROM OTHER SOURCES. THE LD. AR SUBMITTED THAT SUCH DISALLOWANCE IS WHOLLY MISPL ACED AS SALARY RECEIVED FROM RAJASTHAN VIDHAN SABHA IS TAXABLE UNDER THE HE AD SALARY. THE LD. AR SUBMITTED THAT IF THE THEORY OF CIT (A) IS ACCEPTED , THEN THE SALARY RECEIVED BY THE JUDGES OF THE HONBLE HIGH COURT AND HONBLE SU PREME COURT WOULD ALSO BE NOT ENTITLED FOR THE CLAIM OF DEDUCTION U/S 16/1 7 OF THE ACT. THE LD. AR THEREFORE SUBMITTED THAT DISALLOWANCE OF STANDARD D EDUCTION BY HOLDING THAT 32 ITA NOS. 3036 TO 3039/DEL/2015 THE SALARY RECEIVED FROM RAJASTHAN VIDHAN SABHA IS TAXABLE AS INCOME FROM OTHER SOURCES IS UNSUSTAINABLE IN LAW. ITA NO. 3039/DEL/2015 AY 2007-2008 19. AS REGARDS TO GROUND NO. 6, THE LD. AR SUBMITTE D THAT ASSESSEE OWNED TWO PROPERTIES, FIRST PROPERTY IS A FARM HOUS E SITUATED AT DERA MANDI, NEW DELHI AND SECOND PROPERTY IS GOBIND MENSION, BH ARATPUR. IT IS SUBMITTED THAT FARM HOUSE SITUATED AT DERA MANDI, NEW DELHI I S SELF OCCUPIED PROPERTY, AND SECOND PROPERTY AT BHARATPUR IS IN DILAPIDATED CONDITION, AND NOT LIAVABLE AS SUCH. ALV OF SUCH PROPERTY IS NIL. THE LD. AR SU BMITTED ASSESSING OFFICER TREATED THE BHARATPUR PROPERTY AS SELF ACQUIRED PRO PERTY AND COMPUTED THE ALV OF THE DELHI PROPERTY AND BROUGHT TO TAX A SUM OF RS. 7,44,055/-. HOWEVER, THE LD. AR SUBMITTED THAT CIT (A) NEGATED THE APPROACH OF THE ASSESSING OFFICER TO THE EXTENT OF TREATMENT BY THE ASSESSING OFFICER OF BHARATPUR PROPERTY AS SELF ACQUIRED PROPERTY, BY HO LDING THAT ASSESSING OFFICER CANNOT IMPOSE THE BHARATPUR PROPERTY AS SEL F ACQUIRED PROPERTY, AND UPHELD THE CONTENTION OF THE ASSESSEE THAT DELHI PR OPERTY IS SELF ACQUIRED PROPERTY. HOWEVER, IN RESPECT OF THE BHARATPUR PROP ERTY, IT WAS HELD THAT MERELY BECAUSE THE PROPERTY REQUIRES REPAIRS, IT CA NNOT BE HELD THAT ALV OF SUCH PROPERTY IS NIL, AND HENCE ESTIMATED THE ALV A T RS. 1,20,000/-. THE LD. AR SUBMITTED THAT CIT (A) HAS COMPLETELY FAILED TO COMPREHEND THAT SUCH PROPERTY IS DILAPIDATED CONDITION AND IS NOT HABITA BLE AND UNLESS EXTENSIVE REPAIRS ARE DONE, SUCH PROPERTY IS NOT LETTABLE. IT IS SUBMITTED THAT NO EVIDENCE OR MATERIAL HAS BEEN BROUGHT ON RECORD TO REBUT THE SUBMISSIONS OF THE ASSESSEE. THE LD. AR SUBMITTED THAT THE ASSESSING O FFICER IS ADJUDICATOR AS WELL AS INVESTIGATOR AND BEFORE REACHING ANY CONCLU SION, IT IS INCUMBENT UPON HIM TO MAKE NECESSARY ENQUIRY. THE LD. AR FURTHER S UBMITTED THAT IN THE CASE OF SHREE NIRMAL COMMERCIAL LTD. VS. CIT 193 ITR 694, IT HAS BEEN HELD THAT TO BRING AN INCOME UNDER SECTION 22, THE PROPERTY SHOU LD BE INHERENTLY CAPABLE OF BEING LET OUT, AND SINCE IN THE INSTANT CASE, TH E PROPERTY AT BHARATPUR IS IN 33 ITA NOS. 3036 TO 3039/DEL/2015 DILAPIDATED CONDITION, AS SUCH, SAME IS INCAPABLE F OR LET OUT AND HENCE THE ALV OF SUCH PROPERTY CANNOT BE BROUGHT TO TAX. IT I S THEREFORE SUBMITTED THAT INCOME COMPUTED BY CIT (A) UNDER INCOME FROM HOUSE PROPERTY IS UNSUSTAINABLE IN LAW. IN THE FINAL ANALYSIS, THE LD . AR SUBMITTED THAT INITIATION OF THE REASSESSMENT PROCEEDINGS IS BAD I N LAW. FURTHER, ADDITION MADE BY THE ASSESSING OFFICER AND SUSTAINED BY CIT (A) BY INVOKING THE PROVISIONS OF SECTION 69/68 OF THE ACT ON THE GROUN D THAT THE ASSESSEE HAS MADE INVESTMENT OF THE AFORESAID SUM IN A PEN DRIVE ALLEGEDLY FOUND FROM THE POSSESSION OF ONE SHRI. CHETAN GUPTA WITHOUT THERE BEING ANY CORROBORATIVE MATERIAL, AND WITHOUT ESTABLISHING THAT THE ASSESSE E HAS MADE ANY SUCH ALLEGED INVESTMENT IS UNSUSTAINABLE IN LAW. 20. THE LD. DR SUBMITTED THAT THE ENTIRE CASE OF TH E ASSESSEE RESTS ON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CAS E OF S. RAVINDER SINGH DATED 28.02.2011. THE SAME DECISION HAS BEEN FOLLOW ED IN THE CASE OF SMT. HEMINDER KUMARI VIDE ORDER DATED 29.08.2014 OF THE TRIBUNAL, DELHI BENCHES AS STATED IN PARA 16 OF THE ORDER THE LD. DR IN THE COURSE OF HEARING BEFORE US HAS NOT POINTED OUT OR SHOWN ANY FACT OR MATERIAL, SO AS TO ENABLE US, TO COME TO A DIFFERENT OPINION. IN VIEW OF THE ABOVE AND THE O RDER OF THE COORDINATE BENCH AND THE ORDER OF THE HIGH COURT, WE ARE NOT INCLINE D TO INTERFERE WITH THE REASONED ORDER OF LD. CIT(A). THE SAID DECISION OF SMT. HEMINDER KUMARI HAS IN TURN FOLLOWED IN THE ORDER DATED 05.03.2015 IN T HE CASE OF SHRI K. NATWAR SINGH. THEREFORE, THE BASIS FOR RELIEF IN ALL THE D ECISIONS IS THE FINDING OF HONBLE HIGH COURT WHICH IS ON THE PRESUMPTION OF C ERTAIN FACTS AS CORRECT AS STATED BY SHRI CHETAN GUPTA IN HIS STATEMENT DATED 26.03.2009 BEFORE THE ASSESSING OFFICER WHEREIN HE DECLINED ANY ASSOCIATI ON WITH THE PENDRIVE AND ALSO DENIED THE FACT THAT HE WAS MANAGING THE FUNDS OF 148 ODD PEOPLE. THE SAID STATEMENT IS ON PAGE 1 & 2 OF THE PAPER BOOK. IT WAS PRIMARILY FOR THIS REASON THAT THE HONBLE HIGH COURT GRANTED RELIEF. THE FOLLOWING OBSERVATION OF HONBLE HIGH COURT ARE REPRODUCED (PAGE 14 OF THE P APER BOOK) ..NEITHER THE REPORT OF S.P. LUDIANA IS AVAILABLE TO THE ASSESSIN G OFFICER MUCH LESS TO BE 34 ITA NOS. 3036 TO 3039/DEL/2015 ASSESSEE NOR ANY STATEMENT WAS RECORDED BY ADIT (IN VESTIGATION) FROM SHRI CHETAN GUPTA TO CORROBORATE THAT ANY CASH WAS PAID BY THE ASSESSEE TO SHRI CHETAN GUPTA. ON THE CONTRARY, SHRI CHETAN GUPTA ON HIS DEPOSITION CLEARLY DENIED HAVING RECEIVED ANY CASH. SHRI CHETAN GUPTA ALSO DENIED HAVING GIVEN ANY STATEMENT ADMITTING RECEIPT OF CASH. THEREFORE, IN ABSENCE OF ANY EVIDENCE OF RECORD, BE ADDITION WAS NOT SUSTAINABLE.. THIS PRESUMPTION OF FACT BY THE HONBLE HIGH COURT NO LONGER HOLDS TO IN VIEW OF DE VELOPMENTS SUBSEQUENT TO THE ORDER OF HONBLE HIGH COURT AND HENCE ORDER OF THE HONBLE HIGH COURT IS SUB-SILENTIO ON THESE DEVELOPMENTS. IN THIS CASE OF CHETAN GUPTA V. ACIT (2013) 144 ITD 344 (DEL. TRI.), NOT ONLY CHETAN GUP TA ADMITS THAT HE HAD BEEN MANAGING FUNDS OF OTHERS BUT ALSO REQUESTED FOR BEN EFIT OF PEAK THEORY AND TELESCOPING. AND THE TRIBUNAL GAVE A FINDING OF FAC T THAT THE ASSESSEE WAS MANAGING THE FUNDS OF OTHERS AND CONFIRMED THE DEEM ED ADDITION U/S 68 OF THE INCOME TAX ACT BY GIVING THE BENEFIT OF PEAK TH EORY AS THE SOURCE OF CORRESPONDING FUNDS WAS NOT EXPLAINED. IN VIEW OF T HE ABOVE, IF THE TRIBUNAL COMES TO CONCLUSION THAT THE PENDRIVE DID NOT BELON G TO SHRI CHETAN GUPTA AND HE HAD NO ASSOCIATION IN THE MATTER THEN FINDIN G OF FACT BY THE COORDINATE BENCH SHOULD BE REFERRED TO SPECIAL BENCH OF THE TR IBUNAL. THE NEXT ISSUE WHICH PERTAINS TO MANAGING THE FUNDS OF OTHER, WHET HER SHRI JAGAT SINGH WAS ONE OF THE OTHER CONSIDERING THE PERSONAL ASSOCIA TION ALREADY ADMITTED AND ECONOMIC ASSOCIATION OF THE ASSESSEE ESTABLISHED BY USAGE OF CAR (MERCEDES AND PAJERO) BY SHRI JAGAT SINGH, THERE IS SUFFICIEN T EVIDENCE THAT THE CONTENTS OF THE PEN DRIVE BE HELD AS TRUE. HOWEVER IF TRIBUN AL FEELS THAT FURTHER INVESTIGATION IS REQUIRED THE MATTER MAY BE RESTORE D TO THE ASSESSING OFFICER. THE LD. DR RELIED UPON THE ASSESSMENT ORDER AS WELL AS THE ORDER OF THE CIT(A) FOR ALL THE ASSESSMENT YEARS UNDER APPEAL. 21. WE HAVE HEARD BOTH THE PARTIES AND PERUSED ALL THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS REGARDS AYS. 2001- 2002, 2005-2006 AND 2006-2007 ARE CONCERNED, THE PROCEEDINGS WERE I NITIATED U/S 148 OF THE INCOME TAX ACT, WHEREAS FOR THE AY 2007-2008, T HE ASSESSMENT WAS 35 ITA NOS. 3036 TO 3039/DEL/2015 MADE ON THE BASIS OF RETURN OF INCOME FILED U/S 139 (1) OF THE INCOME TAX ACT. IN THE PRESENT APPEALS FILED BY THE ASSESSEE, THE ASSESSEE IS CHALLENGING THE INITIATION OF THE REASSESSMENT PROC EEDINGS U/S 148 OF THE ACT AS THE SAME IS INITIATED WITHOUT ANY MATERI AL FOR FORMING A REASONS TO BELIEVE THAT THE INCOME OF THE ASSESSEE HAS ESCAPED ASSESSMENT AS WELL AS ON THE MERITS OF THE ADDITION S MADE. THE PROCEEDINGS WERE INITIATED BY INVOKING THE PROVISIO NS OF SECTION 147 OF THE ACT. THE CONTENTIONS OF THE LD. AR THAT THE MAT ERIAL FOUND BY THE REVENUE WAS NEVER SUPPLIED TO THE ASSESSEE TILL THE FRAMING OF THE ORDER OF ASSESSMENT WAS NEVER REFUTED BY THE REVENUE/LD. DR AT ANY POINT OF TIME. FROM THE PERUSAL OF THE RECORD IT CAN BE SEEN THAT THE ASSESSING OFFICER MERELY STATED THAT HIS REASONS TO BELIEVE A RE BASED ON THE BASIS OF THE INFORMATION RECEIVED FROM THE ADIT (INV.). T HESE FACTS ARE APPARENT FROM THE REMAND REPORT DATED 29.10.2013 FO R ASSESSMENT YEAR 2001-2002 AND 2007-2008 AND 25.11.2014 FOR ASSESSME NT YEAR 2005- 2006 FURNISHED BY THE ASSESSING OFFICER BEFORE THE CIT (A). THE REMAND REPORT STATED THAT INFORMATION HAD BEEN RECEIVED FR OM THE ACIT, CC-2, NEW DELHI THAT A SEARCH AND SEIZURE OPERATION WAS C ONDUCTED BY THE PUNJAB VIGILANCE BUREAU PERTAINING TO LUDHIANA CITY CENTRE SCAM. THIS OBSERVATION OF THE ASSESSING OFFICER IS NOT SUPPORT ED BY ANY DOCUMENTS. THUS THE PROCEEDINGS HAD BEEN INITIATED NOT ON THE BASIS OF ANY MATERIAL BUT ON THE BASIS OF MERE ALLEGED INFORMATION. AS PE R SECTION 147 OF THE ACT, THE ASSESSING OFFICER SHOULD HAVE REASONS TO B ELIEVE FOR INITIATING THE PROCEEDINGS IN SUPPORT OF MATERIAL FOUND AS REG ARD TO THE ESCAPEMENT OF THE INCOME. BUT IN THE PRESENT CASE A DDITION WAS MADE BY THE ASSESSING OFFICER ON THE BASIS OF THE INFORM ATION ONLY AND NO FURTHER INQUIRY WAS MADE OR DOCUMENTS VERIFIED BY T HE ASSESSING OFFICER AT THE TIME OF THE ASSESSMENT PROCEEDINGS. THUS, TH E ASSESSING OFFICER HAD NO MATERIAL OR EVIDENCE WHATSOEVER IN HIS POSSE SSION OR ON HIS RECORD BUT PROCEEDED TO INITIATE THE PROCEEDINGS U/ S 148 OF THE ACT WITHOUT SATISFYING THE PRECONDITIONS OF THE SECTION 147 OF THE ACT. 36 ITA NOS. 3036 TO 3039/DEL/2015 BESIDES THAT DURING THE ASSESSMENT PROCEEDINGS AS W ELL THE ASSESSING OFFICER HAS NOT BROUGHT OUT ON RECORD THAT THE MATE RIAL FOUND WAS THAT OF ASSESSEE. SIMILARLY IN THE CASE OF THE FATHER OF THE ASSESSEE, SHRI. K. NATWAR SINGH, MOTHER OF THE ASSESSEE SMT. HEMINDER KUMARI, PROCEEDINGS WERE INITIATED U/S 148 OF THE ACT AND A DDITIONS HAD SIMILARLY BEEN MADE. THE CIT (A) WHILE DISPOSING OF F THE SAID APPEALS HAD DELETED THE ADDITIONS SINCE HE FOUND THAT THERE WAS NO VALID MATERIAL AVAILABLE ON RECORD BUT HAD UPHELD THE VAL IDITY OF THE INITIATION OF THE REASSESSMENT PROCEEDINGS. THE CIT(A), THEREI N ALSO MADE OBSERVATION THAT SHRI CHETAN GUPTA WHO WAS ALLEGEDL Y IN POSSESSION OF A PEN DRIVE HAD DENIED THAT HE WAS FOUND IN POSSESSIO N WITH ANY SUCH PEN DRIVE. THE REVENUE FILED APPEALS BEFORE THE TRIBUNA L AND THE TRIBUNAL BY ITS ORDER UPHELD THE DELETION OF THE ADDITION MADE BY THE CIT (A). THE TRIBUNAL HELD THAT NO ADDITION WAS WARRANTED, AS TH ERE EXISTED NO VALID MATERIAL FOR ASSUMING THAT ANY INVESTMENT AS ALLEGE D HAD BEEN MADE AND SO ALLEGEDLY REFLECTED IN THE PEN DRIVE MORE PA RTICULARLY WHEN EVEN SHRI CHETAN GUPTA DENIED THE RECOVERY OF ANY SUCH P EN DRIVE. THE REVENUE HAS CONTENDED THAT THE DECISION OF SMT. HEM INDER KUMARI HAS IN TURN FOLLOWED IN THE ORDER DATED 05.03.2015 IN T HE CASE OF SHRI K. NATWAR SINGH. THEREFORE, THE BASIS FOR RELIEF IN AL L THE DECISIONS IS THE FINDING OF HONBLE HIGH COURT WHICH IS ON THE BASIS OF CERTAIN FACTS AS CORRECT AS STATED BY SHRI CHETAN GUPTA IN HIS STATE MENT DATED 26.03.2009 BEFORE THE ASSESSING OFFICER WHEREIN HE DECLINED ANY ASSOCIATION WITH THE PENDRIVE AND ALSO DENIED THE F ACT THAT HE WAS MANAGING THE FUNDS OF 148 ODD PEOPLE. IT WAS PRIMAR ILY FOR THIS REASON THAT THE HONBLE HIGH COURT GRANTED RELIEF. IN FACT , THIS SUPPORTS THE CASE OF THE ASSESSEE THAT THE ASSESSEES CASE IS ID ENTICAL WITH THE FACTS OF THE CASES DECIDED BY THE TRIBUNAL IN CASE OF HEM INDER KUMARI AND SHRI K. NATWAR SINGH (ITA NO. 4212, 4213, 4211, 421 0/DEL/2013 ORDER DATED 29.08.2014 AND ITA NO. 3290, 3258, 4168/DEL/2 013 ORDER DATED 05.03.2015). FURTHER IT CAN BE SEEN THAT THE TRIBUN AL IN CASE OF SHRI 37 ITA NOS. 3036 TO 3039/DEL/2015 RANINDER SINGH VS. ITO (ITA NO. 2965/DEL/2009 A.Y. 2001-02 ORDER DATED 29.08.2009) HELD AS UNDER: 7. AS REGARDS MERITS OF THE ADDITION, THERE IS NO EVIDENCE IN THE POSSESSION OF THE REVENUE AUTHORITIES TO PROVE THAT THE ASSESSEE EVER PAID CASH TO SHRI CHETAN GUPTA EXCEPT THE SO CALLED REPORT OF ADIT (I NVESTIGATION), LUDHIANA, WHICH IN TURN IS BASED ON THE REPORT OF SUPERINTEND ENT OF POLICE, LUDHIANA. HOWEVER, NEITHER THE REPORT OF SP, LUDHIANA IS AVAI LABLE TO THE ASSESSING OFFICER MUCH LESS TO THE ASSESSEE NOR ANY STATEMENT WAS RECORDED BY ADIT (INVESTIGATION) FROM SH. CHETAN GUPTA TO CORROBORAT E THAT ANY CASH WAS PAID BY THE ASSESSEE TO SH. CHETAN GUPTA. ON THE CONTRAR Y SH. CHETAN GUPTA ON HIS DEPOSITION BEFORE THE ASSESSING OFFICER CLEARLY DENIED HAVING RECEIVED ANY CASH. SHRI CHETAN GUPTA ALSO DENIED HAVING GIVE N ANY STATEMENT ADMITTING RECEIPT OF CASH. THEREFORE, IN ABSENCE OF ANY EVIDENCE ON RECORD, THE ADDITION WAS NOT SUSTAINABLE. IT IS STRANGE TO NOTE THAT THE ASSESSING OFFICER HAVING RECORDED THE STATEMENT OF SH. CHETAN GUPTA CHOSEN TO REMAIN SILENT. THIS PROVES THAT IN THE STATEMENT OF SHRI C HETAN GUPTA THERE WAS NO ADVERSE FACTOR AFFECTING THE TAX LIABILITY OF THE A SSESSEE. ACCORDINGLY, THE ADDITION WAS RIGHTLY DELETED BY THE LEARNED CIT(A). THIS ORDER OF THE TRIBUNAL IS UPHELD BY THE HONBLE HIGH COURT VIDE ORDER DATED 28.02.2011 BEING ITA NO. 1934/2014. SINCE THE FACTS AND CIRCUMSTANCES OF THE CASE ARE ABSOLUTELY IDENTICAL TO THE AFORESAID CASES AND THERE IS NO EVIDENCE OR MATERIAL TO SUPPORT THE ADD ITION MADE BY THE ASSESSING OFFICER, THE ADDITION MADE DOES NOT SUSTAIN. THEREF ORE, ISSUE RELATING TO ADDITION MADE U/S 69 OF THE ACT ON THE BASIS OF AN ALLEGED PEN DRIVE OF SHRI CHETAN GUPTA DOES NOT SURVIVE AND THE ORDER OF THE CIT(A) IS SET ASIDE. THEREFORE, GROUND NO. 2 TO 2.5 & 3 ARE ALLOWED. THU S, THE GROUND NO. 1 TO 1.5 BECOMES ACADEMIC AND INFRUCTUOUS. 22. IN RESULT, ITA NO. 3036/DEL/2015 FOR A.Y. 2001- 02 IS ALLOWED. 23. AS REGARDS ITA NO. 3037/DEL/2015, GROUND NO. 2 TO 4 ARE IDENTICAL TO THE GROUND NOS. 2 TO 2.5 AND 3 TO THAT OF ITA NO. 3 036/DEL/2015 FOR A.Y. 2001-02, THE SAME FINDINGS ARE APPLICABLE IN THE PR ESENT APPEAL. HENCE GROUND NO. 2 TO 4 HEREIN ARE ALLOWED. GROUND NO. 1 TO 1.5 BECOMES ACADEMIC 38 ITA NOS. 3036 TO 3039/DEL/2015 AND INFRUCTUOUS. IN RESPECT OF GROUND NO. 5 IN THIS APPEAL THE NON GRANT OF DEDUCTION U/S 16(1), THE DEDUCTION IS CLAIMED FROM THE REMUNERATION RECEIVED BEING MEMBER OF LEGISLATIVE ASSEMBLY BY THE ASSESSE E. THE SAME IS RECEIVED BY THE ASSESSEE AS SALARY/REMUNERATION OF THE MEMBER O F THE LEGISLATIVE ASSEMBLY AND NOT AS AN EMPLOYEE. THEREFORE, THE SAME CANNOT BE ALLOWED AS PER THE PROVISIONS OF THE ACT BECAUSE THERE IS NO EMPLOYER EMPLOYEE RELATIONSHIP. HENCE GROUND NO. 5 IS DISMISSED. 24. IN RESULT, ITA NO. 3037/DEL/2015 FOR A.Y. 2005- 06 IS PARTLY ALLOWED. 25. AS REGARDS ITA NO. 3038/DEL/2015 FOR A.Y. 2006 -07, ISSUE RELATING TO ADDITION MADE U/S 69 OF THE ACT ON THE BASIS OF AN ALLEGED PEN DRIVE OF SHRI CHETAN GUPTA IS IDENTICAL TO THAT OF ITA NO. 3036/D EL/2015 FOR A.Y. 2001-02, THE SAME FINDINGS ARE APPLICABLE IN THE PRESENT APP EAL. HENCE GROUND NO. 1TO 4 HEREIN ARE ALLOWED. 26. IN RESULT, ITA NO. 3038/DEL/2015 FOR A.Y. 2006- 07 IS ALLOWED. 27. AS REGARDS TO ITA NO. 3039/DEL/2015 FOR A.Y. 2 007-08, ISSUE RELATING TO ADDITION MADE U/S 69 OF THE ACT ON THE BASIS OF AN ALLEGED PEN DRIVE OF SHRI CHETAN GUPTA IS IDENTICAL TO THAT OF ITA NO. 3036/D EL/2015 FOR A.Y. 2001-02, THE SAME FINDINGS ARE APPLICABLE IN THE PRESENT APP EAL. HENCE GROUND NO. 1 TO 5 HEREIN ARE ALLOWED. AS REGARDS GROUND NO. 6 TO 6. 1, THE ISSUE IS RELATING TO RS. 1,20,000/- INCLUSION OF ALV OF BHARATPUR PROJEC T. THE FARM HOUSE SITUATED AT DERA MANDI, NEW DELHI IS SELF OCCUPIED PROPERTY, AND SECOND PROPERTY AT BHARATPUR IS IN DILAPIDATED CONDITION, AND NOT LIAV ABLE AS SUCH AS PER THE SUBMISSION OF THE LD. AR. ALV OF SUCH PROPERTY IS N IL. THE ASSESSING OFFICER TREATED THE BHARATPUR PROPERTY AS SELF ACQUIRED PRO PERTY AND COMPUTED THE ALV OF THE DELHI PROPERTY AND BROUGHT TO TAX A SUM OF RS. 7,44,055/-.THE LD. AR RELIED UPON THE DECISION OF THE HONBLE BOMBAY H IGH COURT WHEREIN TO BRING AN INCOME UNDER SECTION 22, THE PROPERTY SHOU LD BE INHERENTLY CAPABLE OF BEING LET OUT, AND SINCE IN THE INSTANT CASE, TH E PROPERTY AT BHARATPUR IS IN 39 ITA NOS. 3036 TO 3039/DEL/2015 DILAPIDATED CONDITION, AS SUCH, SAME IS INCAPABLE F OR LET OUT AND HENCE THE ALV OF SUCH PROPERTY CANNOT BE BROUGHT TO TAX. BUT AFTER GOING THROUGH THE DECISION THE RATIO AS APPEARS IN THE DECISION OF TH E HONBLE HIGH COURT IS ON DIFFERENT ISSUE AND WILL NOT BE APPLICABLE IN THE P RESENT CASE. EVEN THE DILAPIDATED PROPERTY AS ITS ALV AND THUS, THE CONTE NTIONS OF THE LD. AR DOES NOT SUSTAIN AS THE PROPERTY ALWAYS HAS THE VALUE. T HEREFORE, GROUND NO. 6 TO 6.1 ARE DISMISSED. 28. IN RESULT, ITA NO. 3039/DEL/2015 FOR A.Y. 2007- 08 IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 2ND NOVEMBE R, 2018. SD/- SD/- (N. K. SAINI) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED: 02/11/2018 R.N* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 40 ITA NOS. 3036 TO 3039/DEL/2015 DATE OF DICTATION 25.09.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 25.09.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 2 . 1 1 .2018 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 2 . 1 1 .2018 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 2 . 1 1 .2018 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER