The DCIT, Central Circle-1, Baroda V. Nilam Rahul Patel, Anand

ITA 320/AHD/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6054 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2014
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 10-06-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 04-02-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D P GUPTA
• Assessee Lawyers: MUKESH M PATEL
• Keywords: Income from undisclosed sources; Loose papers; Document seized; Opportunity of being heard; Additional evidence; Corroborative evidences; Assessment record; Documents seized
• Section: 131; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI N.S. SAINI, ACCOUNTANT MEMBER ITA NO.115/AHD/2013 A.Y. 2009-10 NILAM RAHUL PATEL, C/O MUKESH M. PATEL & CO., 3-4, VITHALBHAI BHAVAN, NR. S.P. COLONY RAILWAY CROSSING, AHMEDABAD. PAN: AOMPP 9761R VS DCIT, CENTRAL CIRCLE-1, BARODA. (APPELLANT) (RESPONDENT) ITA NO.320/AHD/2013 A.YS. 2009-10 DCIT, CENTRAL CIRCLE-1, BARODA. VS NILAM RAHUL PATEL, C/O MUKESH M. PATEL & CO., 3-4, VITHALBHAI BHAVAN, NR. S.P. COLONY RAILWAY CROSSING, AHMEDABAD. PAN: AOMPP 9761R (APPELLANT) (RESPONDENT) REVENUE BY : SHRI D.P. GUPTA, CIT-D.R., ASSESSEE(S) BY : SHRI MUKESH M. PATEL, A.R. / DATE OF HEARING : 10/06/2014 / DATE OF PRONOUNCEMENT: 27/06/2014 / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER THESE ARE CROSS APPEALS EMANATING FROM THE ORDER OF LEARNED CIT(A)-IV, AHMEDABAD DATED 19.11.2012. FOR THE SAKE OF CONVENIENCE, ITA NO.115/AHD/2013 & ITA NO.320/AHD/2013 NILAM RAHUL PATEL VS. DCIT, CENTRAL CIRCLE-1, BAROD A. A.YS.2009-10. - 2 - BOTH THE APPEALS ARE HEREBY CONSOLIDATED AND DECIDE D BY THIS COMMON ORDER. A. ASSESSEES APPEAL (ITA NO.115/AHD/2013) 2. THE SUBSTANTIVE GROUND RAISED BY THE ASSESSEE IS REPRODUCED BELOW: THAT THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS.26,00,000/- REPRESENTING ALLEGED CASH PAYMENTS OF RS.26,00,000/ - IN RESPECT OF TRANSACTIONS WITH CHIRAG H. PATEL , WITHOUT APPRECIATING THE MERITS OF THE APPELLANTS CONTENTIONS THAT THERE WAS NO IN DEPENDENT EVIDENCE AGAINST THE APPELLANT ON THE BASIS OF WHICH THE ALLEGED ADD ITION COULD BE SUSTAINED. 3. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING ASSESSMENT ORDER PASSED U/S.143(3) DATED 30 TH OF DECEMBER, 2010 WERE THAT THE ASSESSEE IN INDIVIDUAL CAPACITY HAS DECLARED THE INCOME AT RS.2 8,56,435/-. IT WAS NOTED BY THE AO THAT DURING THE YEAR UNDER CONSIDER ATION THE ASSESSEE HAD EARNED COMMISSION INCOME ON TRANSACTION OF REAL ESTATE PROPERTIES, CAPITAL GAIN AND INCOME FROM OTHER SOUR CES. IN RESPECT OF THE IMPUGNED ADDITION NOW UNDER CONSIDERATION, IT W AS NOTED BY THE AO THAT A SEARCH WAS CARRIED OUT AT THE PREMISES OF ON E SRI CHIRAG HARMANBHAI PATEL. DURING THE COURSE OF SEARCH SRI CHIRAG H. PATEL HAD AFFIRMED THAT HE HAD GIVEN AN UNACCOUNTED SUM O F RS.33,00,500/- IN RESPECT OF LAND TRANSACTION TO THE ASSESSEE. THE ASSESSEES REPLY WAS THAT THE TRANSACTION MADE WITH MR. CHIRAG WAS ONLY THROUGH ACCOUNT PAYEE CHEQUES AND NO AMOUNT WAS RECEIVED AS UNACCOU NTED MONEY BY THE ASSESSEE. ACCORDING TO ASSESSEE, MR. CHIRAG H. PATE L WAS LYING AND REQUESTED TO IGNORE THE SAID UNFOUNDED AND UNSUBSTA NTIATED STATEMENT. THE AO WAS NOT CONVINCED AND MADE FEW OBSERVATIONS AS UNDER: THE ASSESSEE DID INVOLVE IN THE CASH TRANSACTIONS W ITH SHRI CHIRAG PATEL. THE LOOSE PAPERS BEARING PAGE NO: 5 & 7 OF ANNEXURE A/2 WERE DULY SEIZED FROM THE PREMISES BELONGING TO SHRI CHIRAG PATEL. O N THE PAGE 5, THE DATED ITA NO.115/AHD/2013 & ITA NO.320/AHD/2013 NILAM RAHUL PATEL VS. DCIT, CENTRAL CIRCLE-1, BAROD A. A.YS.2009-10. - 3 - CASH TRANSACTIONS WERE RECORDED. THE ENTRY DATED 06 .11.08 CLEARLY READS AS FOLLOWS (GUJARATI TRANSLATED INTO ENGLISH): AMOUNT (RS.) DESCRIPTION RS. 15,00,000/- ON GIVING CASH TO NILA M PATEL, ENTRY OF CHEQUE MADE IT FOLLOWS THAT THE ASSESSEE HAD GIVEN CHEQUE TO SH RI CHIRAG PATEL AGAINST ACCEPTING THE CASH. THERE ARE ALSO SUCH OTHER ENTRIES ON PAGE 5 & 7. AL L THESE ENTRIES, MADE BY THE SHRI CHIRAG PATEL REVEAL THAT THE ASSESSEE WAS INVOLVED IN UNACCOUNTED CASH TRANSACTIONS, IN GIVING ACCOMMODATIVE ENTRIES OF HER SURPLUS ACCOUNTED FUNDS BY ACCEPTING UNACCOUNTED 'CASH' AS SECURITY. SO, IT IS AMPLE CLEAR THAT THE ASSESSEE DID TRANSACTED UNACCOUNTED CASH. IT IS ALSO PERTINENT TO NOTE THAT SHRI CHIRAG PATEL IN HIS STATEMENT RECORDED ON 17.03.09 HAS DEPOSED IN ANSWER 4 THAT IN ADDI TION TO DULY ACCOUNTED - ; PAYMENTS, HE HAD GIVEN THE ASSESSEE A SUM OF RS.33 ,00,500/- WHICH WAS UNACCOUNTED. 4. BEING AGGRIEVED THE MATTER WAS CARRIED BEFORE TH E FIRST APPELLATE AUTHORITY. BEFORE LEARNED CIT(A) CERTAIN FACTS WERE NARRATED THAT SRI CHIRAG H. PATEL WAS DEVELOPING A PROJECT, NAMELY, SURYA VALLEY PROJECT. THE SAID PROJECT WAS STATED TO BE DEVELOP ED ON THE LAND BELONGING TO THE ASSESSEE I.E. MS NILAM R PATEL. CE RTAIN LOOSE PAPERS WERE SEIZED AT THE TIME OF SEARCH AND IT WAS FOUND THAT CASH PAYMENT OF RS.15 LAC AND RS.11 LAC WERE PAID TO THE ASSESSEE. THOSE LOOSE PAPERS WERE CONFRONTED TO SRI CHIRAG H. PATEL AND HIS STAT EMENT WAS RECORDED U/S.131 ON 17.03.2009. LEARNED CIT(A) HAS REPRODUCE D THE SAID STATEMENT, RELEVANT PORTION IS EXTRACTED BELOW: Q.4 WHETHER YOU HAVE MADE ANY PAYMENT TO NEELAMBEN PATE L BESIDES THE AMOUNT MENTIONED IN ANSWER TO QUESTION NO. 3? A.4 YES, I HAVE MADE SEVERAL PAYMENT BY CASH AS WE LL AS CHEQUE FROM BANK OFBARODA A/C NO. 5261. SUCH AMOUNT IS TOTALING TO R S. 33,00,500.00. THIS AMOUNT IS NOT SHOWN IN MY BOOKS OF ACCOUNT. Q.5 WHAT DO YOU HAVE TO SAY ABOUT THIS RS. 33,00,50 0.00? A.5 AS TOLD EARLIER THIS AMOUNT IS UNACCOUNTED PAYM ENT. WHICH IS INCLUDED IN THE DISCLOSURE BY ME VIDE LETTER DATED 25-02-2009, SUBM ITTED IN YOUR OFFICE, OF UNACCOUNTED INCOME OFRS. 3.12 CRORES. THEREFORE THIS AMOUNT IS ALSO INCLUDED IN MY UNACCOUNTED INCOME. ITA NO.115/AHD/2013 & ITA NO.320/AHD/2013 NILAM RAHUL PATEL VS. DCIT, CENTRAL CIRCLE-1, BAROD A. A.YS.2009-10. - 4 - Q.6 NOW I AM SHOWING YOU ANNEXURE A/7, WHICH IS SEI ZED FROM YOUR ACCOUNTANT SHREE SANJAYBHAI PATEL'S OFFICE, LOCATED AT 303, HE ENA COMPLEX, ANAND. THIS ANNEXURE CONSISTS DETAILS OF SEVERAL FINANCIAL TRANSACTIONS IN YOUR HAND WRITING. NOW EXPLAIN THE NATURE OF TRANSACTIONS AND EXPLAIN WHETHER THESE TR ANSACTIONS ARE REFLECTED IN YOUR BOOKS? A.6 15,00,000.00 PAID TO NEELAMBEN IN CASH IN LIEU OFP.D.C. THIS AMOUNT IS PAID TOWARDS PURCHASE OF LAND IN PROJECT SURYA VALLEY BY SAURABH AND ATULBHAI. NEELAMBEN IS THE OWNER OFSURYAVALLEY PROJ ECT LAND. 5,00,000.00 PAID BACK TO REKHABEN ANILBHAI PATEL AM OUNT WAS KEPT WITH US TOWARDS SALE OF LAND BY ANILBHAI. 8,00,000.00 PAID TO SURESHBHAI KODAK FOR MAKING PAY MENT TO FARMER. 5,00,000.00 PAID TO KHIMJIBHAI PRAJAPATI OF JINAL C ONSTRUCTION TOWARDS CONSTRUCTION OF SURYA VALLEY PROJECT. BESIDES THIS THERE IS ACCOUNTING OFRS. 25,00,000.00 OUT OF WHICH, 11,00,000.00 PAID TO NEELAMBEN PATEL IN CASH IN LIEU OF RETURN OF P.D.C. 13,00,000.00 IS INCLUDED IN THE EXPENSE OF RS. 14, 00,000.00 MENTION ON PAGE NO. 7. 5. THE ASSESSEES CONTENTION WAS THAT AS PER QUESTI ON NO.2, SRI CHIRAG H. PATEL IN A STATEMENT RECORDED U/S.131 DAT ED 17 TH MARCH, 2009 HAS ALSO STATED THAT THE PAYMENTS MADE TO THE ASSES SEE WERE ONLY BY CHEQUE AND HE HAD NOT MADE ANY PAYMENT FOR THE DEVE LOPMENT OF THE PROJECT. THE ASSESSEE HAS FURNISHED AN AFFIDAVIT DA TED 30 TH OF DECEMBER, 2010, FILED BEFORE THE AO DENYING THE RECEIPT OF AN Y PAYMENT IN CASH OVER AND ABOVE THE PAYMENT RECEIVED THROUGH ACCOUNT PAYEE CHEQUES. IT WAS ALSO CONTESTED THAT THE AO HAD WRONGLY PRESUMED THAT IN EACH AND EVERY LAND TRANSACTION GENERALLY THERE OUGHT TO BE AN INVOLVEMENT OF ON MONEY. LEARNED CIT(A) WAS NOT CONVINCED AND DECIDED THE ISSUE IN FAVOUR OF THE REVENUE IN THE FOLLOWING MANNER, ONLY RELEVANT PORTION IS REPRODUCED BELOW: 6.3 IN THE CONTEXT OF THE ABOVE DECISION, IT IS QU ITE CLEAR THAT THE NAME OF THE APPELLANT AS WELL AS THE NATURE OF TRANSACTI ONS IS QUITE EVIDENT AS PER SEIZED LOOSE PAPERS AS WELL AS THE ADMISSION MA DE BY SHRI CHIRAG H. PATEL IN THE STATEMENT RECORDED. THE PAYMENT BY WAY OF CASH BEING MADE ITA NO.115/AHD/2013 & ITA NO.320/AHD/2013 NILAM RAHUL PATEL VS. DCIT, CENTRAL CIRCLE-1, BAROD A. A.YS.2009-10. - 5 - TO THE APPELLANT IS QUITE EVIDENT AS PER THE SEIZED LOOSE PAPERS AS WELL AS ADMISSION MADE BY SHRI CHIRAG H. PATEL IN HIS STATE MENT RECORDED. SHRI CHIRAG H. PATEL HAS DULY ADMITTED THAT CASH HAS BEE N PAID TO THE APPELLANT TOWARDS THE PURCHASE OF LAND IN PROJECT ' SURYA VALLEY' WHO IS THE OWNER OF SURYA VALLEY PROJECT LAND. SHRI CHIRAG H. PATEL HAS ACCORDINGLY DISCLOSED THE ENTIRE AMOUNT OF RS.33,00 ,500/- WHICH IS THE TOTAL PAYMENT MADE TO THE APPELLANT BY WAY OF CASH / CHEQUE AS HIS UNACCOUNTED INCOME FORMING PART OF HIS OVERALL DISC LOSURE OF RS.3.12 CRORES. THE EXISTENCE OF BUSINESS CONNECTION BETWEE N THE APPELLANT AND SHRI CHIRAG H. PATEL, AS IS EVIDENT FROM THE SEIZED PAPERS AS WELL AS STATEMENT RECORDED OF SHRI CHIRAG H. PATEL, IS FURT HER SUBSTANTIATED FROM THE COPY OF THE ACCOUNT OF SHRI CHIRAG H. PATEL IN THE BOOKS OF THE APPELLANT WHICH CLEARLY ESTABLISHES THE FACT THAT T RANSACTIONS RECORDED IN THE SEIZED PAPERS ARE IN RESPECT OF SALE OF LAND BY THE APPELLANT. 6.4 SO FAR AS THE QUANTUM OF INCOME AS REFLECTED FR OM THE SEIZED DOCUMENTS IS CONCERNED, I AGREE WITH THE APPELLANT THAT THE CASH PAYMENT OF RS.15,00,000/- AND RS.11,00,000/- TOTALING TO RS .26,00,000/- ONLY HAS BEEN MADE TO THE APPELLANT AS PER THE NOTINGS MADE ON THE SEIZED PAPERS. RS.7,00,000/- HAS BEEN PAID BY SHRI CHIRAG H. PATEL BY WAY OF CHEQUE FROM BANK OF BARODA ACCOUNT WHICH IS DULY RE FLECTED IN THE ACCOUNT OF SHRI CHIRAG H. PATEL IN THE BOOKS OF THE APPELLANT. THEREFORE, AMOUNT OF RS.7,00,000/- STANDS DULY ACCOUNTED FOR I N THE BOOKS OF THE APPELLANT. ACCORDINGLY, SO FAR AS THE QUANTUM OF UN ACCOUNTED INCOME IN THE HANDS OF THE APPELLANT IS CONCERNED, THE SAME A MOUNTS TO RS.26,00,000/- ONLY WHICH IS BY WAY OF PAYMENT IN C ASH AS PER THE SEIZED PAPERS. 6.5 NOW COMING TO THE ISSUE OF ASSERTION OF THE APP ELLANT AS WELL AS FILING AN AFFIDAVIT DENYING ANY RECEIPT OF CASH FROM SHRI CHIRAG H. PATEL, IT IS OBVIOUS THAT IN THE BACKGROUND OF THE FACTUAL MATRI X EMERGING FROM THE CONTENTS OF THE SEIZED PAPERS SPECIFYING THE PAYMEN T OF CASH TO THE APPELLANT, ADMISSION OF SHRI CHIRAG H. PATEL IN THE STATEMENT RECORDED U/S 131 OF THE ACT SPECIFYING THE PAYMENT BY WAY OF CAS H TO THE APPELLANT AND THE EXISTENCE OF DEFINITE BUSINESS CONNECTION BETWE EN THE APPELLANT AND SHRI CHIRAG H. PATEL, NO EVIDENTIARY VALUE CAN BE A TTACHED TO SUCH AFFIDAVIT FILED BY THE APPELLANT WHICH IS JUST A SE LF SERVING DOCUMENT. THE AFFIDAVIT SUBMITTED CANNOT BE ACCEPTED AS RELIABLE WHEN THERE IS ENOUGH MATERIAL ON RECORD TO DOUBT THE VERACITY OF THE REC ORDED TRANSACTIONS OF SHRI CHIRAG H. PATEL IN THE BOOKS OF THE APPELLANT. UNDER THE CIRCUMSTANCES WHERE THERE IS ENOUGH MATERIAL ON REC ORD TO NEGATE THE CLAIM OF GENUINENESS OF TRANSACTIONS, THE AFFIDAVIT NEED NOT TO BE ACCEPTED AS RELIABLE, IN THIS REGARD, THE DECISION OF THE HON'BLE HIGH COURT OF DELHI IN THE CASE OF NOVA PROMOTERS & FINLEASE ( P.) LTD. [2012] 18 TAXMANN.CORN 217 (DELHI) IS QUITE RELEVANT. . 6. FROM THE SIDE OF THE APPELLANT, LEARNED AR, MR. MUKESH M. PATEL APPEARED AND PLEADED THAT THE IMPUGNED ADDITION WAS MADE IN THE HANDS ITA NO.115/AHD/2013 & ITA NO.320/AHD/2013 NILAM RAHUL PATEL VS. DCIT, CENTRAL CIRCLE-1, BAROD A. A.YS.2009-10. - 6 - OF THE ASSESSEE MERELY ON THE BASIS OF A STATEMENT BY A THIRD PARTY, NAMELY, CHIRAG H. PATEL. HIS STATEMENT SHOULD NOT H AVE BEEN TREATED AS A SACRO SANCT BECAUSE THAT STATEMENT WAS NOT SUPPORTED BY ANY EV IDENCE. HIS ARGUMENT IS THAT THE SAID STATEMENT WAS MADE TO SAVE HIS OWN SKIN. WHATEVER WAS THE TRANSACTION THE SAME WAS ONLY THRO UGH CHEQUE AND IN SUPPORT HE HAS PLACED RELIANCE ON THE DETAILS OF TH E CHEQUES AND THE PAYMENTS RECEIVED AS APPEARED ON PAGE 42 OF THE PAP ER BOOK. LEARNED AR HAS ALSO PLACED RELIANCE ON AN AFFIDAVIT OF THE ASSESSEE, NAMELY, MRS. NEELAM R. PATEL PLACED ON PAGE 40 OF THE PAPER BOOK WHEREIN SHE HAS STATED ON OATH THAT NO AMOUNT IN CASH WAS RECEIVED FROM MR. CHIRAG PATEL. SHE HAS STATED ON OATH THAT WHATEVER AMOUNT WAS RECEIVED WAS ONLY THROUGH ACCOUNT PAYEE CHEQUES. HE HAS ALSO ARG UED THAT THERE WAS NO EVIDENCE OF ON-MONEY TRANSACTION; HENCE, MERELY ON PRESUMPTION THE AO HAD TAXED THE IMPUGNED AMOUNT IN THE HANDS OF TH E ASSESSEE. FOR THE LEGAL PROPOSITION THAT MERE ENTRIES IN THE ACCOUNTS OF A THIRD PARTY ARE NOT SUFFICIENT TO TAX THE AMOUNT IN QUESTION IN THE HAN DS OF THE ASSESSEE, LEARNED AR HAS PLACED RELIANCE ON A DECISION OF ITA T AHMEDABAD PRONOUNCED IN THE CASE OF ACIT VS. PRABHAT OIL MILLS; 52 TTJ 533 (AHD). HE HAS ALSO PLACED RELIANCE UPON AN ANOTHER DECISI ON OF ITAT AHMEDABAD PRONOUNCED IN THE CASE OF PRARTHNA CONSTRUCTION, 118 TAXMANN 112(AHD), FOR THE LEGAL PROPOSITION THAT THE DOCUMENTS BEING SEIZED FROM THE PREMISES OF A THIRD PARTY AND THAT THE STATEMENT WAS RECORDED AT THE BACK OF THE ASSESSEE WITHOUT OFFERI NG OPPORTUNITY TO INTERROGATE SAID DEPONENT; THE ADDITION OF THE UNDI SCLOSED INCOME WAS BAD IN LAW. ITA NO.115/AHD/2013 & ITA NO.320/AHD/2013 NILAM RAHUL PATEL VS. DCIT, CENTRAL CIRCLE-1, BAROD A. A.YS.2009-10. - 7 - 7. FROM THE SIDE OF THE REVENUE, LEARNED CIT-DR, MR . D.P. GUPTA HAS VEHEMENTLY SUPPORTED THE ORDERS OF THE REVENUE AUTHORITIES. HE HAS INFORMED THAT AS PER THE DETAILS AVAILABLE IN THE A SSESSMENT ORDER THERE WERE TWO SETS OF UNDISCLOSED DOCUMENTS WHICH WERE S EIZED AT THE TIME OF SEARCH. HE HAS MENTIONED THAT LOOSE PAPERS BEARING PAGE NO.5 & 7 OF ANNEXURE-A/2 WAS SEIZED FROM THE PREMISES OF SRI CH IRAG H. PATEL. THERE WAS REFERENCE ON PAGE 3 OF THE ASSESSMENT ORD ER ABOUT THE EXISTENCE OF THOSE LOOSE PAPERS. IN ADDITION TO ABO VE, THERE WERE UNRECORDED TRANSACTION WHICH WERE ALSO RECOVERED AT THE TIME OF SEARCH; WHICH WERE FOUND TO BE FINANCIAL TRANSACTIONS WRITT EN IN THE HAND WRITING OF THE ACCOUNTANT SRI SANJAYBHAI PATEL, MARKED AS A NNEXURE A/7 OF THE SEIZED MATERIAL. LEARNED DR HAS THEREFORE ARGUED THAT IN BOTH THE SETS OF INCRIMINATING SEIZED MATERIAL THERE WAS A M ENTION OF PAYMENT OF UNACCOUNTED CASH TO THE ASSESSEE , THEREFORE, ON THE BASIS OF THE SAID SEIZED MATERIAL THE ADDITION WAS RIGHTLY MADE IN TH E HANDS OF THE ASSESSEE. LEARNED DR HAS ALSO PLACED RELIANCE ON A LETTER OF MR. CHIRAG PATEL DATED 25 TH OF FEBRUARY, 2009 WHEREIN HE HAD OFFERED UNACCOUNT ED INCOME OF RS.3.12 CRORES AND THEN DISCLOSED THE SAI D AMOUNT AS UNACCOUNTED INCOME. THAT LETTER ITSELF GOES AGAINST THIS ASSESSEE AND THE SAME IS A CLEAR EVIDENCE OF PASSING OF ON MONEY FRO M ONE HAND TO ANOTHER HAND. HE HAS ALSO ARGUED THAT THE ONE LINE AFFIDAVIT OF THE ASSESSEE WAS NOTHING BUT A SELF SERVING STATEMENT . IN RESPECT OF THE ARGUMENT OF CROSS-EXAMINATION OF SRI CHIRAG PATEL, LEARNED DR HAS PLEADED THAT NO SUCH REQUEST WERE EVER MADE BEFORE THE REVENUE AUTHORITIES AND THAT NO SUCH SPECIFIC GROUND HAS BE EN RAISED BEFORE THE TRIBUNAL. RATHER, IN THE OPINION OF LEARNED DR, THE REVENUE HAD GRANTED SUFFICIENT OPPORTUNITY TO THE ASSESSEE BUT AT NO ST AGE THE ASSESSEE HAD ITA NO.115/AHD/2013 & ITA NO.320/AHD/2013 NILAM RAHUL PATEL VS. DCIT, CENTRAL CIRCLE-1, BAROD A. A.YS.2009-10. - 8 - ASKED THE AO FOR CROSS-EXAMINATION OF MR. CHIRAG. H E HAS CONCLUDED THAT IN THE LIGHT OF EVIDENCE ALREADY ON RECORD NO FRUITFUL PURPOSE SHALL BE SERVED TO RESTORE THIS ISSUE BACK TO THE STAGE OF T HE AO MERELY TO PROVIDE AN OPPORTUNITY OF CROSS-EXAMINATION OF MR. CHIRAG P ATEL. HE HAS THUS CONCLUDED THAT THE ORDER OF THE LEARNED CIT(A) DESE RVES TO BE CONFIRMED. 8. WE HAVE HEARD BOTH THE SIDES AT SOME LENGTH. WE HAVE TO EXAMINE THE FACTS OF THE CASE AS PER THE SEQUENCE OF EVENTS THAT TOOK PLACE STARTING FROM THE SEARCH AND THE ACTION TAKEN IN THE HANDS O F THE ASSESSEE. A SEARCH WAS CONDUCTED ON MR. CHIRAG H. PATEL ON 17.0 3.09. IT WAS FOUND THAT SRI CHIRAG H. PATEL WAS DEVELOPING A PROJECT, VIZ., SURYA VALLEY PROJECT. ON PAGE 2 OF THE ASSESSMENT ORDER THE AO HAS GIVEN A FINDING ON FACTS THAT THE LAND BELONGED TO THE ASSESSEE, NA MELY, SMT. NEELAM R. PATEL. A STATEMENT OF SRI CHIRAG H. PATEL WAS RECORDED U/S . 131 ON 17 TH MARCH, 2009. THERE WERE TWO SETS OF SEIZED MATERIAL, ONE WAS MARKED AS ANNEXURE A/2 AND THE RELEVANT LOOSE PAPER S WERE MARKED PAGE NOS.5 AND 7. THERE WAS AN ENTRY DATED 06.11.2008 ON ONE OF THE L OOSE PAPER WHICH REVEALED THAT A SUM OF RS.15 LACS WAS P AID IN CASH TO NEELAM PATEL. THERE WERE ANOTHER SET OF SEIZED MATERIAL MARKED A S A/7 WHICH WAS RECOVERED FROM THE ACCOUNTANT SRI SAN JAYBHAI PATEL FROM THE OFFICE LOCATED AT HEENA COMPLEX ANAND. THE ANNE XURE A/7 CONTAINED SEVERAL FINANCIAL TRANSACTION RECORDED IN THE HAND WRITING OF THE SAID ACCOUNT AND IN THE HAND WRITING OF CHIRAG H. P ATEL. THE ASSESSEE WAS SPECIFICALLY ASKED TO EXPLAIN WHETHER THOSE TRANSAC TIONS WERE REFLECTED IN THE BOOKS OF ACCOUNTS. LEARNED CIT(A) HAS REPRODUCE D A QUESTION AS MENTIONED IN THE ASSESSMENT ORDER, ALREADY TYPED SU PRA. SRI CHIRAG H. PATEL HAS STATED THAT A SUM OF RS.15 LAC WAS PAID T O NEELAMBEN IN CASH ITA NO.115/AHD/2013 & ITA NO.320/AHD/2013 NILAM RAHUL PATEL VS. DCIT, CENTRAL CIRCLE-1, BAROD A. A.YS.2009-10. - 9 - IN LIEU OF POST DATED CHEQUES ( PDC). IT WAS WRITTE N THAT THE SAID AMOUNT WAS PAID IN CASH TOWARDS PURCHASE OF LAND IN RESPEC T OF SURYA VALLEY PROJECT. HE HAS STATED THAT NEELAMBEN IS THE OWNER OF THE LAND OF SURYA VALLEY PROJECT . THERE WAS A REFERENCE OF POST DATED CHEQUES (PDC). THE EXPLANATION BEFORE US OF PDC WAS THAT TO ENSURE THE PAYMENT OF LAND FROM THE SIDE OF THE PURCHASER, I.E. SRI CH IRAG PATEL; IT IS A GENERAL PRACTICE TO TAKE POST DATED CHEQUES FROM THE PURCHA SER AND HAND OVER TO THE SELLER, I.E., SMT. NEELAM R. PATEL. HENCE, ON C ASH PAYMENT; THE PDC WHICH WERE IN POSSESSION OF THE ASSESSEE-SELLER WER E RETURNED BACK TO THE PURCHASER MR. CHIRAG H. PATEL. ON THE SEIZED MATERI AL RECOVERED FROM THE ACCOUNTANT THERE WAS A REFERENCE OF CASH PAYMENT OF RS.11 LACS TO NEELAMBEN PATEL IN LIEU OF RETURN OF PDC. IN RESPEC T OF THE PAYMENT OF RS.15 LAC, IN ADDITION TO THE RECORD MAINTAINED BY THE ACCOUNTANT, THE REVENUE DEPARTMENT HAS ALSO SEIZED A LOOSE PAPER (5 AND 7 ANNEXURE A/2) MENTIONING A PAYMENT OF RS.15 LACS IN CASH TO THE ASSESSEE. 9. IN THE LIGHT OF THE ABOVE FACTUAL BACKGROUND NOW WE SHALL DISCUSS THE LEGAL QUESTIONS RAISED DURING THE COURSE OF ARG UMENT BY BOTH THE SIDES. FIRST WE SHALL DEAL WITH THE REQUEST OF LEAR NED AR, MR. MUKESH M. PATEL THAT IN THE ABSENCE OF ANY CROSS-EXAMINATION OF MR. CHIRAG PATEL THE MATTER DESERVES TO BE RESTORED WITH A DIRECTION TO GRANT THIS OPPORTUNITY TO THE ASSESSEE. IN THIS CONNECTION, BEFORE WE DEAL WI TH THE ISSUE OF CROSS- EXAMINATION IT IS BETTER TO KNOW ABOUT THE PHRASEOLOGY REASONABLE OPPORTUNITY. THE REQUIREMENT OF GRANTING REASONABLE OPPORTUNITY OF BEING HEARD HAS TWO ELEMENTS. THE FIRST IS THAT AN OPPORTUNITY MUST BE GIVEN TO THE ASSESSEE TO PLACE ON RECORD HIS SUBMIS SIONS, EVIDENCES, ETC. BEFORE AN AUTHORITY. THE SECOND IS THAT THE OPPORTUNITY MUST BE ITA NO.115/AHD/2013 & ITA NO.320/AHD/2013 NILAM RAHUL PATEL VS. DCIT, CENTRAL CIRCLE-1, BAROD A. A.YS.2009-10. - 10 - REASONABLE. WE HAVE NOTED THAT THE AO HAS NOT DEFAU LTED IN NOT GRANTING A SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE , WHAT TO SAY ABOUT A REASONABLE OPPORTUNITY OF HEARING. THE ASSESSEE HAS FURNISHED HIS REPLY ON FEW OCCASIONS, DATES MENTIONED IN THE ASSESSMENT ORDER, AND THEREAFTER, ON DUE CONSIDERATION OF THOSE REPLIES T HE ASSESSMENT WAS FINALIZED. IT IS WRONG ON THE PART OF THE LEARNED A R TO COMMENT THAT THE ASSESSMENT WAS COMPLETED IN UNDUE HASTE. IN THIS RE GARD, OUR FINDING IS THAT THERE WAS NO FLOUTING OF PRINCIPLE OF EQUITY. DUE JUSTICE WAS GIVEN IN GRANTING OPPORTUNITY OF HEARING TO THE ASSESSEE. THE REASONABLENESS OF THE OPPORTUNITY HAS BEEN INADVE RTENTLY CHALLENGED. 9.1 NEXT QUESTION RAISED IS ABOUT THE RIGHT OF CROSS EXAMINATION . THE OPPORTUNITY OF CROSS-EXAMINATION IS LEGALLY AVA ILABLE TO A PERSON IF A WITNESS IS USED AGAINST THAT PERSON. THEREFORE THE COURTS DEFINITELY RECOGNIZED THE RIGHT OF A LITIGANT TO CROSS-EXAMINE SUCH A WITNESS. BUT THIS RIGHT HAS TO BE USED AND TO BE EXERCISED NOT A S A RULE BUT TO BE APPLIED AFTER UNDERSTANDING THE NATURE OF THE PROCEEDINGS, THE CONDUCT OF THE PARTY AND THE CIRCUMSTANCES OF THE CASE. THE MOST D AMAGING FACT AGAINST THE ASSESSEE IS THAT SHE HAS NOT RAISED THIS PLEA O F CROSS-EXAMINATION EARLIER. NEITHER BEFORE THE AO NOR BEFORE LEARNED C IT(A) IT WAS DEMANDED BY THE ASSESSEE TO CROSS EXAMINATION MR CH IRAG PATEL. WE HAVE EXAMINED THE GROUNDS OF APPEAL RAISED BEFORE L EARNED CIT(A), AS NOTED ON FORM NO.35, BUT FOUND NO SUCH GRIEVANCE RA ISED THEREIN. EVEN BEFORE US IN THE GROUNDS OF APPEAL ON FORM NO.36 NO SUCH GRIEVANCE HAD BEEN RAISED. LEARNED AR HAS RAISED THIS QUESTION ON LY IN HIS ORAL ARGUMENTS. EVEN, ORALLY HE IS ENTITLED TO DO SO BUT BEFORE ACCEPTING THIS LEGAL PROPOSITION IT WAS MANDATORY ON HIS PART TO D EMONSTRATE BEFORE US ITA NO.115/AHD/2013 & ITA NO.320/AHD/2013 NILAM RAHUL PATEL VS. DCIT, CENTRAL CIRCLE-1, BAROD A. A.YS.2009-10. - 11 - THAT THE STATEMENT OF MR. CHIRAG PATEL WAS THE ONLY BASIS FOR THE IMPUGNED ADDITION; HENCE, SUCH A STATEMENT SHOULD B E CROSS-EXAMINED. BUT THE FACTS ARE NOT SO. WHAT WE HAVE NOTED THAT T HE IMPUGNED ADDITION WAS NOT SOLELY BASED UPON THE STATEMENT OF CHIRAG P ATEL DATED 17.03.2009 MADE U/S. 131 OF IT ACT, BUT THERE WERE OTHER GLARI NG INCRIMINATING MATERIAL IN POSSESSION OF THE REVENUE DEPARTMENT RE COVERED AT THE TIME OF SEARCH WHICH WERE USED AGAINST THE ASSESSEE. THE IMPUGNED STATEMENT WAS RECORDED TO CORROBORATE INCRIMINATING EVIDENCES . 10. ONE OF THE IMPORTANT POINT IS THAT THE AO IS NO T DEBARRED FROM RELYING UPON THOSE INCRIMINATING MATERIAL AGAINST T HE ASSESSEE. BUT JUSTICE AND FAIR PLEA DEMANDED THAT THE SOURCE OF I NFORMATION AS WELL AS THE MATERIAL USED SHOULD BE DISCLOSED TO THE ASSESS EE SO THAT THE ASSESSEE SHOULD GET AN OPPORTUNITY TO REBUT THE SAME. THEREF ORE, THE RIGHT OF DEMANDING OF CROSS-EXAMINATION OF WITNESS WOULD NAT URALLY DEPEND UPON THE NATURE OF MATERIAL RELIED UPON BY THE AO. IT IS ALSO TO BE SEEN THAT IN WHAT MANNER THE ASSESSEE CAN REBUT THAT STATEMENT I F AT ALL AN OPPORTUNITY TO CROSS-EXAMINATION BE GRANTED. WHAT SHALL BE ASKE D IS NOT INFORMED TO US. BUT FOR WHAT THIS DEMAND IS JUSTIFIED HAS NOT B EEN DEMONSTRATED BEFORE US. IN OUR HUMBLE OPINION IF ON THE FACE OF RECORDS AND THE NATURE OF THE MATERIAL EVIDENCE, IT IS MANIFEST THAT NO FR UITFUL PURPOSE SHALL BE SERVED, THEN IN A SITUATION WHEN NO SUCH PLEA HAD E VER BEEN RAISED IN THE PAST, THERE IS NO POINT TO RESTORE THE ENTIRE PROCE EDINGS BACK TO THE STAGE OF THE AO FOR A MERE FULFILLMENT OF A RITUAL OF CRO SS-EXAMINATION. THEREFORE, SEVERAL COURTS HAVE ALSO RULED THAT IT I S DIFFICULT TO LAY DOWN ANY HARD AND FAST RULE OF UNIVERSAL APPLICATION ABO UT AN OPPORTUNITY OF CROSS-EXAMINATION IN EACH AND EVER CASE. ALTHOUGH, WE HOLD THAT RIGHT TO CROSS EXAMINE IS AN IMPORTANT AND A VALUABLE RI GHT, BUT IT IS NOT ITA NO.115/AHD/2013 & ITA NO.320/AHD/2013 NILAM RAHUL PATEL VS. DCIT, CENTRAL CIRCLE-1, BAROD A. A.YS.2009-10. - 12 - ABSOLUTE AND INALIENABLE. ONE MUST NOT BE ALLOWED TO GET BENEFIT OF EXECRABLE SITUATION WHICH IS ONES OWN CREATION. A TRUTH IN A STATEMENT CAN BE ADJUDGED BY THE FACTS, SURROUNDING SITUATION AND CORROBORATIVE EVIDENCES. DUE TO THE PRESENCE OF ALL THAT MATERIAL UNEARTHED IN THE PRESENT CASE THE TRUTHFULNESS OF THE STATEMENT OF M R. CHIRAG H. PATEL WAS NOT DOUBTED. IT APPEARS THAT NEVER IN THE PAST THIS QUESTION HAD OCCURRED EVEN IN THE MIND OF THE ASSESSEE. RESULTANTLY, WE H EREBY DISMISS THIS PART OF THE ARGUMENT. 11. LEARNED AR HAS ALSO PLACED RELIANCE ON A CRYPTI C AFFIDAVIT OF THE ASSESSEE DATED 30 TH OF DECEMBER, 2010. THERE WAS NO ASSERTION ABOUT TH E DENIAL OF THE FACTS. THE AFFIDAVIT SIMPLY SAYS THAT THE AMOUNT WAS RECEIVED FROM MR. CHIRAG H. PATEL BY ACCOUNT PAYEE CHEQUES. THERE IS NO DENIAL OF THE FACT OF CASH PAYMENT. BECAUSE AS PER PAGE 42 OF PAPER BOOK THE DETAILS OF THE CHEQUES AND THE TOTAL PAYMENT TR ANSACTED OF RS.81 LACS WAS VERY MUCH ON RECORD. THROUGH THIS AFFIDAVIT, TH ERE WAS NO MENTION OF THE LOOSE PAPERS FOUND AT THE TIME OF SEARCH AND OTHER INCRIMINATING EVIDENCES WERE RECOVERED FROM THE ACCOUNTANT. WE, T HEREFORE, HOLD THAT SUCH AN AFFIDAVIT WAS NOTHING BUT A SELF SERVING DECLARAT ION. IF AN AFFIDAVIT IS MADE WITHOUT SUPPORTING MATERIAL, THEN SUCH AN ASSERTION, IN THE EYES OF LAW, IS NOTHING BUT A BALD STATEMENT. S UCH A STATEMENT WHICH IS MADE IN ASSESSEES OWN INTEREST HAS NO WEIGHT IN OUR OPINION. WE, THEREFORE, HOLD THAT THE SAID AFFIDAVIT WAS MERELY MADE TO SUIT THE CONVENIENCE OF THE ASSESSEE; HENCE, IT WAS NOTHING BUT AN AFTERTHOUGHT DECLARATION THUS DID NOT CARRY ANY WEIGHTAGE IN THE EYES OF LAW. AS FAR AS THE PLEA OF A THIRD PARTY WITNESS IS CONCERNED AND THAT THE MATERIAL WAS SEIZED FROM THE THIRD PARTY AT THE TIME OF SEARCH, WE ARE OF THE VIEW THAT A ITA NO.115/AHD/2013 & ITA NO.320/AHD/2013 NILAM RAHUL PATEL VS. DCIT, CENTRAL CIRCLE-1, BAROD A. A.YS.2009-10. - 13 - CONSEQUENTIAL ACTION IS PRESCRIBED UNDER THE STATUT E BY ISSUING A NOTICE U/S. 153C OF IT ACT. IT IS A REQUIREMENT OF LAW THA T IF AN INCRIMINATING EVIDENCE IS RECOVERED IN POSSESSION OF A PERSON SEA RCHED BUT THAT INCRIMINATING EVIDENCE BELONGS TO A PERSON OTHER TH AN THE PERSON SEARCHED, THEN SUCH EVIDENCES ARE REQUIRED TO BE HA NDED OVER TO THE AO HAVING JURISDICTION OVER SUCH OTHER PERSON. BECAUSE OF THE PROVISIONS OF SECTION 153C, THE ASSESSEE BEING SUCH OTHER PERSON, THE PRESCRIBED ACTION OUGHT TO HAVE BEEN TAKEN; SO THAT IT COULD BE ASKED TO EXPLAIN THE NATURE OF UNACCOUNTED SUM RECEIVED IN CASH FROM SRI CHIRAG H. PATEL. MOREOVER, IT WAS NOT THE STAND OF THE ASSESSEE THAT SHE WAS NOT AT ALL HAVING ANY TRANSACTION WITH SRI CHIRAG PATEL. THE A CCEPTED FACTUAL POSITION WAS THAT THE ASSESSEE HAD RECEIVED RS.81 L ACS FROM CHIRAG H. PATEL IN RESPECT OF A LAND TRANSACTION WHICH WAS US ED FOR THE PURPOSE OF DEVELOPMENT OF A PROJECT, NAMELY, SURYA VALLEY PROJ ECT. IN RESPECT OF THE SAID TRANSACTION; IN ADDITION TO THE AMOUNT RECEIVE D THROUGH CHEQUE; THERE WAS INCRIMINATING EVIDENCE THAT THE IMPUGNED SUM WA S PAID TO THE ASSESSEE IN CASH. THE MENTION OF THE CASH TRANSACTI ON WAS CLEAR AND UNAMBIGUOUS STATING THE FACT THAT THE IMPUGNED AMOU NT WAS PAID TOWARDS PURCHASE OF LAND IN THE PROJECT SURYA VALLEY. ONC E, THE ASSESSEE WAS INVOLVED WITH THE TRANSACTION, THEREFORE, IT IS NOT FAIR TO SIMPLY ARGUE THAT THE THIRD PARTY EVIDENCE WAS NOT RELATED TO THE ASS ESSEE; HENCE, ILLEGALLY USED BY THE AO. UNDER THESE CIRCUMSTANCES, WE CANNO T HOLD THAT THE INCRIMINATING EVIDENCE AS UNEARTHED AT THE TIME OF SEARCH WERE UNRELATED EVIDENCE. THEREFORE, THE ARGUMENT OF THIRD PARTY E VIDENCE IS HEREBY DISMISSED. SIGNIFICANTLY, IT IS WORTH TO MENTION TH AT THE STATEMENT OF SRI CHIRAG H. PATEL WAS NOT A LIE AS ALLEGED BY THE ASS ESSEE. MR. CHIRAG H. PATEL FIRMLY STOOD BY HIS STATEMENT AND FOR THAT RE ASON HE HAD DISCLOSED ITA NO.115/AHD/2013 & ITA NO.320/AHD/2013 NILAM RAHUL PATEL VS. DCIT, CENTRAL CIRCLE-1, BAROD A. A.YS.2009-10. - 14 - AN UNACCOUNTED INCOME OF RS.3.12 CRORES. FURTHERMOR E, IT WAS ALSO AN UNDISPUTED FACT THAT THE IMPUGNED SUM, NOW UNDER DE BATE, WAS INCLUDED IN THE SAID DISCLOSURE AS MADE BY SRI CHIRAG H. PAT EL. DUE TO THIS UNDISPUTED FACT AS ALSO THE DISCUSSION MADE HEREINA BOVE, WE HAVE NO HESITATION IN UPHOLDING THE ACTION OF THE AO AS ALS O THE VIEW TAKEN BY LEARNED CIT(A). RESULTANTLY, THE CASE LAWS CITED BY LEARNED AR AS ABOVE DO NOT MATCH WITH THE FACTS OF THE CASE; HENCE, REJ ECTED BEING MISPLACED. THE GROUND OF THE ASSESSEE IS DISMISSED. 12. IN THE RESULT, THE ASSESSEES APPEAL IS DISMISS ED. B. REVENUES APPEAL (320/AHD/2013) 13. GROUND NO.1 IS REPRODUCED BELOW: THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN RESTRICTING THE ADDITION OF RS.26,00,000/- OUT OF TOTAL ADDITION OF RS.33,00,50 0/ - MADE ON ACCOUNT OF RECEIPT OF ON-MONEY ON LAND TRANSACTION WITH SHRI C HIRAG PATEL.. 14. THE REVENUE HAS RAISED THIS GROUND BECAUSE A PA RT RELIEF WAS GRANTED BY LEARNED CIT(A). HOWEVER, WE HAVE NOTED T HAT LEARNED CIT(A) GRANTED RELIEF OF RS.7 LACS WHICH WAS PAID BY MR. C HIRAG H. PATEL BY WAY OF CHEQUE DULY RECORDED AS PER THE SEIZED PAPERS. C ONSIDERING, THE ACCOUNTS AND THE SUPPORTING EVIDENCES THAT AMOUNT W AS REDUCED FROM THE IMPUGNED ADDITION AND BALANCE AMOUNT OF RS.26 LACS WAS CONFIRMED BY LEARNED CIT(A). WE FIND NO FALLACY IN HIS JUDGMENT BECAUSE THE PAYMENT WAS MADE THROUGH CHEQUE AND NOT IN CASH AS ALSO DUL Y RECORDED IN THE BOOKS, THEREFORE, THE SAME IS HEREBY CONFIRMED AND THIS GROUND OF THE REVENUE IS DISMISSED. 15. GROUND NO.2 IS REPRODUCED BELOW: ITA NO.115/AHD/2013 & ITA NO.320/AHD/2013 NILAM RAHUL PATEL VS. DCIT, CENTRAL CIRCLE-1, BAROD A. A.YS.2009-10. - 15 - THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DE LETING THE ADDITION OF RS.2,25,000/-, RS.21,00,000/- AND RS.2,74,65,073/- MADE U/S. 68 OF THE IT ACT. 16. IT WAS NOTED BY THE AO THAT THERE WERE CERTAIN CASH CREDITS; HENCE, THE ASSESSEE WAS ASKED TO PLACE ON RECORD THE CONFI RMATION, IDENTITY AND THE CREDITWORTHINESS OF THOSE CASH CREDITORS. IN TH E ABSENCE OF SATISFACTORY EXPLANATION AS PER AO THE ADDITION U/S.68 WAS MADE AS UNDER: ADDITION U/S. 68 ON LOANS TAKEN FROM RS. RS. (A) SHRI JITENDRA D. PATEL 2,25,00 0/- (B) SHRI JITUBHAI A. PATEL 21,00,000/ - (C) M/S. NARAYAN FINANCE 92,30,397/- (D) SUMS FOUND CREDITED IN CAPITAL ACCOUNT 2,74,65 ,073/- 3,90,20,470/- 17. WHEN THE MATTER WAS CARRIED BEFORE THE FIRST AP PELLATE AUTHORITY DUE TO CERTAIN ADDITIONAL EVIDENCE PLACED ON RECORD , LEARNED CIT(A) HAS ASKED THE AO TO SUBMIT A REPORT AS PRESCRIBED UNDER RULE 46A OF THE IT ACT. THE FACTS IN RESPECT OF THE ADDITION MADE U/S. 68; PARTY-WISE ARE AS UNDER: (A) IN RESPECT OF AN ADDITION OF RS.2,25,000/- PERTAINING TO SRI JITENDRA D. PATEL AN ADMITTED FACTUAL POSITION WAS THAT SRI PATEL IS THE FATHER OF THE ASSESSEE, WHO HAS FILED HIS CONFIRMATION ALONG WITH A COPY OF BANK STATEMENT IN HDFC BANK. BEFORE AO, IT WAS SUBMITTED THAT HE WAS IN PO SSESSION OF 2 ACRES OF AGRICULTURAL LAND AND IN SUPPORT 7/12 E XTRACT WAS FURNISHED. BUT IN THE ABSENCE OF PROOF OF AGRICULTU RAL INCOME AND THAT CASH AMOUNT WAS DEPOSITED BY THE FATHER IN THE BANK ACCOUNT, THE AO HAD TAXED THE SAME IN THE HANDS OF THE ASSESSEE BY INVOKING SECTION 68 OF IT ACT. ITA NO.115/AHD/2013 & ITA NO.320/AHD/2013 NILAM RAHUL PATEL VS. DCIT, CENTRAL CIRCLE-1, BAROD A. A.YS.2009-10. - 16 - (B) WHEN THE MATTER WAS CARRIED BEFORE THE FIRST APPEL LATE AUTHORITY, THE IMPUGNED ADDITION WAS DELETED VIDE PARAGRAPH 9. 3 AND 9.4 AS REPRODUCED BELOW: 9.3 SO FAR AS THE LOAN OF RS.2,25,000/- RECEIVE D FROM SHRI JITENDRA D. PATEL IS CONCERNED, IT IS AN UNDISPUTED FACT THAT S HRI JITENDRA D. PATEL, WHO IS THE FATHER OF THE APPELLANT, IS AN AGRICULTURIST. C OPY OF 7/12 EXTRACTS EVIDENCING THE HOLDING OF AGRICULTURAL LAND HAS BEE N SUBMITTED BY THE APPELLANT BEFORE THE AO. FURTHER, COPY OF BANK ACCO UNT OF SHRI JITENDRA D. PATEL IN HDFC BANK IS ALSO FURNISHED. THE CONFIRMAT ION OF SHRI JITENDRA D. PATEL IS ALSO ON RECORD. ON PERUSAL OF THE 7/12 DOC UMENT, IT IS NOTED THAT AGRICULTURAL OPERATIONS HAVE BEEN CARRIED WITH TOBA CCO BEING THE CROP. THEREFORE, IT IS UNDISPUTED THAT SHRI JITENDRA D. P ATEL IS AN AGRICULTURIST HAVING AGRICULTURAL INCOME. HOWEVER, NO PROOF IN TE RMS OF SALE BILLS ETC. COULD BE SUBMITTED BY THE APPELLANT IN RESPECT OF A GRICULTURAL INCOME. FURTHER, ON PERUSAL OF THE BANK STATEMENT OF SHRI J ITENDRA D. PATEL, IT IS NOTED THAT THERE IS BALANCE OF RS.4,10,817/- AS ON 04-04- 2008 IN HIS ACCOUNT. IT IS ALSO CORRECT TO NOTE THAT THERE IS CASH DEPOSIT OF RS.1,25,000/- ON 22-12-2008. IN BETWEEN THERE ARE A NUMBER OF TRANSACTIONS OF WI THDRAWALS FROM THE SAID ACCOUNT. SHRI JITENDRA D. PATEL BEING AGRICULTURIST DOES NOT HAVE ANY TAXABLE INCOME OTHER THAN AGRICULTURAL INCOME AND HE IS NOT ASSESSED TO TAX. THE SOURCE OF CASH DEPOSIT OF RS.1,25,000/- IS STATED T O BE OUT OF AGRICULTURAL INCOME. HOWEVER, THE SALE BILLS OF AGRICULTURAL PRO DUCE COULD NOT BE SUBMITTED. THERE IS A PAYMENT OF RS.2,25,000/- TO A PPELLANT FROM THE SAID ACCOUNT ON 19-01-2009. 9.4 CONSIDERING THE ENTIRE FACTS AND CIRCUMSTANCES OF THE CASE, IT IS OBVIOUS THAT THE APPELLANT HAS DISCHARGED THE INITIAL ONUS AS REQUIRED U/S 68 OF THE ACT. SINCE THE DEPOSITOR HAS FURNISHED CONFIRMATION , COMPLETE PARTICULARS OF PAYMENT LIKE CHEQUE NUMBER AND DATE, EXTRACT OF BAN K PASSBOOK, EVIDENCE OF HOLDING OF AGRICULTURAL LAND AND, THEREFORE, THE AP PELLANT HAS DISCHARGED HER PRIMARY BURDEN OF PROVING OF SUCH CASH CREDIT. IT I S A MATTER OF RECORD THAT NO FURTHER INQUIRY HAS BEEN MADE BY THE AO. CONSIDERIN G THE EXISTENCE OF AGRICULTURAL INCOME IN VIEW OF 7/12 DOCUMENT SHOWIN G AGRICULTURAL OPERATIONS ON LAND BELONGING TO SHRI JITENDRA D. PA TEL, IT CANNOT BE SAID THAT HE DOES NOT HAVE FINANCIAL CAPACITY TO ADVANCE LOAN . ONCE THE INITIAL ONUS HAS BEEN DISCHARGED BY THE APPELLANT, IT IS FOR THE AO TO MAKE FURTHER INQUIRY FROM THE CONCERNED CREDITOR. THE AO COULD HAVE ISSUED SU MMONS U/S 131 OF THE ACT TO THE CREDITOR TO MAKE FURTHER INQUIRY. ONCE THE A PPELLANT HAS FURNISHED NECESSARY DETAILS AS IN THE PRESENT CASE, SHE HAS D ISCHARGED THE INITIAL BURDEN WHICH LAY ON HER U/S 68 OF THE ACT. THE ONUS NOW SH IFTS TO THE AO FOR DISPUTING THE APPELLANT'S CLAIM, EXPLANATION AND EVIDENCES. O NCE THE ASSESSEE HAS DISCHARGED THE PRIMARY ONUS, ADDITION U/S 68 CANNOT BE MADE UNLESS EXPLANATION AND EVIDENCE FURNISHED BY THE APPELLANT ARE FOUND TO BE UNTRUE. ITA NO.115/AHD/2013 & ITA NO.320/AHD/2013 NILAM RAHUL PATEL VS. DCIT, CENTRAL CIRCLE-1, BAROD A. A.YS.2009-10. - 17 - (C) AFTER HEARING BOTH THE SIDES, WE ARE NOT IN AGREEMENT WITH THE FINDING OF LEARNED CIT(A). MERELY CONSIDERING T HE EXISTENCE OF AGRICULTURAL LAND IN VIEW OF 7/12 DOCUMENT SHOWING AGRICULTURAL OPERATIONS ON LAND BELONGING TO SHRI JITENDRA D. PA TEL, IT CANNOT BE SAID THAT HE DOES HAVE FINANCIAL CAPACITY TO ADVANCE LO AN. HOWEVER, OUR PRELIMINARY OBSERVATION IS THAT MERE TWO ACRES OF A GRICULTURAL LAND IS NOT SUFFICIENT TO GENERATE THAT MUCH OF AMOUNT WHICH WA S ADVANCED TO THE ASSESSEE. BY TWO ACRES OF LAND ONE CAN HARDLY SURVI VE ON AGRICULTURAL INCOME. NO OTHER SOURCE OF INCOME WAS DEMONSTRATED BEFORE THE REVENUE AUTHORITIES. FURTHER, WE ARE ALSO NOT IN AG REEMENT WITH THE FINDING OF LEARNED CIT(A) THAT THE INITIAL ONUS WAS DISCHARGED BY THE ASSESSEE. ON ONE HAND, LEARNED CIT(A) HAS GIVEN A F ACTUAL FINDING THAT NO PROOF OF SALE OF AGRICULTURAL PRODUCE WAS FURNISHED BEFORE THE AO, THEN HOW IT CAN BE CORRECT TO HOLD THAT THE INITIAL ONUS WAS DISCHARGED BY THE ASSESSEE. THE ASSESSEE HAS CLAIMED THAT THE CROP OF TOBACCO WAS THE AGRICULTURAL PRODUCE, BUT NO EVIDENCE WAS PLACED ON RECORD TO SUBSTANTIATE THAT CLAIM. LEARNED CIT(A) HAS COMMENT ED THAT THE AO COULD HAVE ISSUED SUMMONS U/S.131 OF IT ACT. BECAUS E OF THIS COMMENT OF LEARNED CIT(A),WE HEREBY HOLD THAT IN A SITUATIO N WHEN AN INQUIRY WAS NOT COMPLETED TO THE HILT, THEN IT IS JUSTIFIABLE T O RESTORE THE ISSUE BACK TO THE STAGE OF THE AO, WHO IS AN INVESTIGATOR AS ALSO ADJUDICATOR, SO THAT CAN GIVE THE FINDING ON FACTS. CONCLUSIVELY, WE RES TORE THIS PART OF THE GROUND BACK TO THE STAGE OF THE AO TO CONDUCT THE C OMPLETE INQUIRY SO AS TO COMPLY WITH THE PROVISIONS OF SECTION 68 OF IT A CT. THIS PART OF THE GROUND OF THE REVENUE CAN THEREFORE BE HELD AS PART LY ALLOWED FOR STATISTICAL PURPOSE ONLY. ITA NO.115/AHD/2013 & ITA NO.320/AHD/2013 NILAM RAHUL PATEL VS. DCIT, CENTRAL CIRCLE-1, BAROD A. A.YS.2009-10. - 18 - (B). NEXT, IN RESPECT OF SRI JITUBHAI PATEL THE DA TE-WISE DETAILS OF THE LOANS TAKEN BY THE SAID DEPOSITOR WAS AS UNDER: DATE AMOUNT (RS.) 09.03.2009 6,00,000/- 17.03.2009 10,00,000/- 26.03.2009 5,00,000/- TOTAL 21,00,000/- THE ASSESSEE HAS FURNISHED A CONFIRMATION AND BANK STATEMENT IN HDFC. IN THE CONFIRMATION, HE HAS INFORMED THAT HE IS IN POSSESSION OF VARIOUS RETAIL STORES IN NEW JERSEY, USA. THE ADMIT TED FACTUAL POSITION IS THAT THE DEPOSITOR IS NRI AND STAYS IN USA. WHEN TH E MATTER REACHED BEFORE LEARNED CIT(A), HE HAS GIVEN THE FINDING VID E PARAGRAPH 9.5 AND 9.6 AS UNDER: 9.5 SO FAR AS THE ADDITION MADE IN RESPECT OF THE C ASH CREDITS IN THE NAME OF SHRI JITUBHAI A. PATEL AMOUNTING TO RS. 21,00,00 0/- IS CONCERNED, THE APPELLANT HAS ALREADY SUBMITTED THE BANK STATEMENT EVIDENCING THE TRANSACTIONS OF RS.21,00,000/- MAINTAINED IN HDFC B ANK, CONFIRMATION FROM THE SAID CREDITOR HAS ALSO BEEN FILED. SUBSEQUENTLY , THE APPELLANT HAS ALSO SUBMITTED BY WAY OF ADDITIONAL EVIDENCES THE RELEVANT BANK ACCOUNT IN USA AND US INCOME TAX RETURNS OF THE SAID CREDITOR SHRI JITUBHAI A. PATEL, EVIDENCING THE GENUINENESS AND CREDITWORTHINESS OF THE DEPOSITS OF RS.21,00,000/- MADE BY HIM WITH THE APPELLANT. THER EFORE, ALL THE RELEVANT DOCUMENTS OF THE CREDITOR SHRI JITUBHAI A. PATEL IN TERMS OF COPIES OF HIS BANK ACCOUNT IN USA FROM WHICH FUNDS HAVE BEEN TRANSFERR ED TO NRI A/C IN HDFC AT ANAND AS WELL AS HIS INCOME TAX RETURNS FILED IN USA ALONGWITH HIS CONFIRMATION DULY SUBSTANTIATE THE IDENTITY OF THE CREDITOR, GENUINENESS OF THE TRANSACTIONS AND CAPACITY OF THE CREDITOR TO MAKE S UCH ADVANCES. THE SUBMISSION MADE BY THE AO IN HIS REMAND REPORT DTD. 23-11-2011 IN THIS REGARD IS OF NO CONSEQUENCE AND RELEVANCE SINCE HE HAS, ON THE BASIS OF TOTAL INCOME SHOWN IN THE US INCOME TAX RETURN AND TAX PA ID BY HIM IN USA, TRIED TO ESTIMATE THE FINANCIAL CAPACITY OF THE CREDITOR TO MAKE PAYMENT OF RS.21,00,000/- TO THE APPELLANT. THE AO HAS NOT UND ERSTOOD THE ISSUE UNDER CONSIDERATION IN THE RIGHT PERSPECTIVE. THE AMOUNT OF TOTAL INCOME SHOWN IN THE RETURN OF INCOME AND TAX PAID IS NOT THE ONLY C RITERIA FOR JUDGING THE FINANCIAL CAPACITY OF THE APPELLANT. THE LOAN CAN B E ADVANCED NOT ONLY OUT OF CURRENT INCOME SHOWN IN THE INCOME TAX RETURN BUT O UT OF CAPITAL ACCUMULATED OVER THE YEARS AS WELL AS CASH 7 BANK BALANCE AVAIL ABLE AS ON DATE WHICH ARE DULY REFLECTED FROM HIS BANK ACCOUNTS EVIDENCING TH E LIQUIDITY OF THE CREDITOR. IN VIEW OF THE ABOVE, THE APPELLANT HAS DULY DISCHA RGED HER INITIAL ONUS SO FAR AS SECTION 68 IS CONCERNED. ITA NO.115/AHD/2013 & ITA NO.320/AHD/2013 NILAM RAHUL PATEL VS. DCIT, CENTRAL CIRCLE-1, BAROD A. A.YS.2009-10. - 19 - 9.6 ONCE THE APPELLANT PRODUCES THE BASIC RECORDS O F THE CREDITOR WHICH SHOW THE IDENTITY OF THE CREDITOR, COPY OF ACCOUNTS OF T HE CREDITOR, DETAILS OF CHEQUE NOS., BANK ACCOUNTS THROUGH WHICH MONEY WAS TRANSFE RRED TO THE APPELLANT AND EVIDENCE THAT HE IS ASSESSED TO TAX IN USA, IT CANNOT BE SAID THAT ASSESSEE HAS STILL TO DISCHARGE THE ONUS. FROM THE MATERIALS AVAILABLE ON RECORD, IT IS CLEARLY ESTABLISHED THAT THE APPELLANT HAS PROVED A LL THE INGREDIENTS SUCH AS GENUINENESS OF THE TRANSACTIONS, IDENTITY OF THE CR EDITOR, CREDITWORTHINESS AND CAPACITY OF THE CREDITOR BY PROVIDING THE COMPLETE INCOME TAX DETAILS IN USA AND HIS BANK ACCOUNTS IN USA COUPLED WITH THE FACT THAT ALL THE TRANSACTIONS WERE THROUGH A/C PAYEE CHEQUES. ONCE THE ASSESSEE H AS DISCHARGED THE PRIMARY ONUS, ADDITION U/S 68 CANNOT BE MADE UNLESS EXPLANATION AND EVIDENCE FURNISHED BY THE APPELLANT ARE FOUND TO BE UNREASONABLE OR UNTRUE. IN ORDER TO SUBSTANTIATE THE ISSUE UNDER CONSIDERAT ION, IT WOULD BE RELEVANT TO REFER TO THE FOLLOWING JUDICIAL DECISIONS IN THE MA TTER. SINCE THE ADDITION WAS DELETED, NOW THE REVENUE IS IN APPEAL BEFORE US. AFTER CONSIDERING THE FACTS AND CIRCUMST ANCES OF THE CASE, WE HAVE TO COMMENT FEW THINGS AND THE MOST IMPORTANT I S THAT THE SAID DEPOSITOR IS AN NRI BEING RESIDENT OF NEW JERSEY, U SA. IN SUPPORT OF THE SAID CLAIM, THE DEPOSITOR HAS FURNISHED BANK ACCOUN T MAINTAINED IN USA AS WELL AS INCOME TAX RETURN. THROUGH COPIES OF BAN K ACCOUNT, IT WAS ESTABLISHED THAT THE ACCOUNT MAINTAINED IN USA WAS DULY DISCLOSED AND FROM THAT ACCOUNT THE MONEY WAS TRANSFERRED TO NRI ACCOUNT IN HDFC. WE, THEREFORE, HOLD THAT THE IDENTITY AS WEL L AS THE CREDITWORTHINESS HAVE DULY BEEN DISCLOSED BEFORE TH E AO AND IN SUCH SITUATION WHEN AN NRI HAS TRANSFERRED THE MONEY THR OUGH BANKING CHANNEL TO INDIA AND OUT OF THAT AMOUNT ADVANCED LO AN TO ASSESSEE, THEREFORE, THE ADDITION WAS RIGHTLY DELETED BY LEAR NED CIT(A). THIS PART OF THE GROUND OF THE REVENUE IS, THEREFORE, DISMISS ED. (D) NEXT, IN RESPECT OF M/S NARAYAN FINANCE THE DA TE-WISE DEPOSIT FROM THE SIDE OF THE DEPOSITOR WAS AS UNDER: DATE AMOUNT (RS.) 29.07.2008 25,00,000/- 26.08.2008 30,00,000/- ITA NO.115/AHD/2013 & ITA NO.320/AHD/2013 NILAM RAHUL PATEL VS. DCIT, CENTRAL CIRCLE-1, BAROD A. A.YS.2009-10. - 20 - 15.11.2008 37,30,397/- TOTAL 92,30,397/- WHEN THE MATTER WAS CARRIED BEFORE LEARNED CIT(A), RELIEF WAS GRANTED VIDE PARAGRAPH 10 AS REPRODUCED BELOW: 10. SO FAR AS THE ADDITION OF RS.92,30,397/- IN RES PECT OF M/S NARAYAN FINANCE IS CONCERNED, ON PERUSAL OF THE RELEVANT LE DGER ACCOUNT OF M/S NARAYAN FINANCE IN THE BOOKS OF THE APPELLANT WHICH WAS ALSO SUBMITTED BEFORE THE AO, IT IS QUITE APPARENT THAT THE TOTAL AMOUNT OF RS.92,30,397/- IS NOT THE DEPOSITS MADE BY M/S NARAYAN FINANCE WITH T HE APPELLANT BUT THE SAME ARE THE REPAYMENT OF THE DEPOSITS MADE BY THE APPELLANT WIT H M/S NARAYAN FINANCE. IN FACT, THERE IS NO CASH CREDIT INVOLVED AT ALL. NO CASH CREDIT HAS BEEN RECEIVED BY THE APPELLANT DURING TH E YEAR UNDER CONSIDERATION FROM M/S. NARAYAN FINANCE. NEEDLESS TO SAY THAT REP AYMENT OF DEPOSITS MADE WITH M/S. NARAYAN FINANCE BY THE APPELLANT CANNOT B E TREATED AS CASH CREDITS IN THE HANDS OF THE APPELLANT. IT IS FURTHER NOTED THAT M/S NARAYAN FINANCE HAS PAID THE INTEREST OF RS.2,23,860/- TO THE APPELLANT ON THE DEPOSITS OF APPELLANT WITH M/S. NARAYAN FINANCE DURING THE YEAR UNDER CON SIDERATION AND THE SAME HAS BEEN OFFERED TO TAX BY THE APPELLANT BY WAY OF INCOME FROM OTHER SOURCES. IT APPEARS THAT AO HAS MADE THE ADDITION TREATING T HE REPAYMENT OF ADVANCES AS CASH CREDITS BECAUSE OF HIS MISUNDERSTANDING. TH ERE IS NO RECEIPT OF ANY DEPOSIT BY THE APPELLANT FROM M/S. NARAYAN FINANCE DURING THE YEAR UNDER CONSIDERATION. IN VIEW OF THE ABOVE, THERE IS NO QU ESTION OF APPLICABILITY OF SECTION 68 OF THE ACT TO THE ABOVE FACTS. THE ADDIT ION MADE BY THE AO OF RS.92,30,397/- ON THE MISUNDERSTANDING THAT THE SAM E ARE CASH CREDITS IN THE HANDS OF THE APPELLANT RECEIVED FROM M/S. NARAYAN F INANCE IS, HEREBY, DELETED. ON PERUSAL OF THE ACCOUNT, LEARNED CIT(A) HAS HELD THAT THE AMOUNT IN QUESTION WAS NOT THE DEPOSIT MADE BY M/S. NARAYAN FINANCE BUT IT WAS A REPAYMENT OF THE DEPOSIT EARLIER MADE BY THE ASSESSEE WITH M/S. NARAYAN FINANCE. IN THE ABSENCE OF ANY CONTRAD ICTORY EVIDENCE AND CONSIDERING THE NATURE OF TRANSACTION WHICH WAS FOU ND TO BE REPAYMENT OF THE DEPOSIT, WE HEREBY HOLD THAT LEARNED CIT(A) HAS RIGHTLY DELETED THE ADDITION. THIS PART OF THE GROUND OF THE REVENUE IS THEREFORE DISMISSED. (E) IN RESPECT OF CREDIT IN CAPITAL ACCOUNT LEARN ED CIT(A) HAS GRANTED RELIEF, VIDE PARAGRAPH 12 REPRODUCED BELOW: ITA NO.115/AHD/2013 & ITA NO.320/AHD/2013 NILAM RAHUL PATEL VS. DCIT, CENTRAL CIRCLE-1, BAROD A. A.YS.2009-10. - 21 - 12. SO FAR AS THE ADDITION OF RS.2,74,65,073/- AS S UMS FOUND CREDITED IN CAPITAL ACCOUNT IS CONCERNED, THE AO HAS NOT UNDERS TOOD THE ACTUAL FACTUAL SCENARIO AT ALL. IN FACT DURING THE YEAR UNDER CONS IDERATION, THE APPELLANT HAS NOT RECEIVED ANY FUNDS IN HER CAPITAL ACCOUNT BY WA Y OF REMITTANCE BUT HER CAPITAL ACCOUNT HAS BEEN MERGED WITH THE REMITTANCE ACCOUNT BY WAY OF JOURNAL ENTRY. THE APPELLANT HAS ALREADY SUBMITTED THE CAPITAL ACCOUNT, P & L A/C, BALANCE SHEET AS WELL AS REMITTANCE A/C FOR EA RLIER YEARS WHICH ARE PART OF THE ASSESSMENT RECORDS. IF WE SEE THE BALANCE SH EET OF THE APPELLANT AS ON 31-03-2008, THE CAPITAL ACCOUNT AS GIVEN IN THE BAL ANCE SHEET IS DETAILED AS UNDER: CAPITAL ACCOUNT (RS.) (RS.) BANK FCNR INTEREST 2,75,720 CAPITAL A/C. NILAM R. PATEL 1,26,15,280 REMITTANCE 3,41,28,907 4,70,19,907 THUS, THE CAPITAL ACCOUNT AS ON 31-03-2008 SHOWS BA LANCE OF RS.4,70,19,907/- WHICH INCLUDES REMITTANCE OF RS.3,41,28,907/-. THE REMITTANCES HAVE BEEN RECEIVED BY THE APPELLANT RIGHT FROM THE F.Y.2003-0 4 ONWARDS FROM HER FUNDS IN UK WHERE SHE IS ASSESSED TO TAX. THE APPELLANT H AS ALREADY SUBMITTED THE COPY OF INCOME TAX RETURNS FILED IN UK EVIDENCING T HE CREDIBILITY OF HER FINANCIAL STATUS AND REMITTANCE RECEIVED IN INDIA D URING THE PROCEEDING YEARS. THE REMITTANCES RECEIVED DURING THE EARLIER YEARS A RE DULY SHOWN IN THE BOOKS OF ACCOUNT. THE CAPITAL ACCOUNT AS ON 31-03-2009 AS PER THE BALANCE SHEET IS SHOWN AS UNDER: CAPITAL ACCOUNT CAPITAL A/C. NILAM R. PATEL RS.4,15,37,923 IN FACT, IN THE BALANCE SHEET AS ON 31-03-2009, THE APPELLANT HAS MERGED THE REMITTANCE ACCOUNT AND FCNR A/C WITH THE CAPITAL WH ICH WAS USED TO BE SEPARATELY SHOWN IN THE BALANCE SHEET IN EARLIER YE ARS. IN FACT, THIS CAPITAL A/C AS ON 31-03-2009 CONSISTS OF THE FOLLOWING AMOUNTS: CAPITAL ACCOUNT AS ON 31-03-2009 (RS.) (RS.) COMPRISES OF THE FOLLOWING BANK FCNR INTEREST 2,75,720 CAPITAL A/C. NILAM R. PATEL 1,37,97,130 REMITTANCE 2,74,65,073 4,15,37,923/- HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES, WE ARE OF THE VIEW THAT IN A SITUATION WHEN THE ASSESSEE HAD FURNISHED CAPITAL ACCOUNT, P & L A/C. AND BALANCE-SHEET, AS WELL AS REMITTANCE ACC OUNT FOR EARLIER YEARS WHICH WERE STATED TO BE A PART OF THE ASSESSMENT RE CORD, WE HEREBY HOLD THAT LEARNED CIT(A) WAS CORRECT IN HOLDING THAT AO HAD MISUNDERSTOOD ITA NO.115/AHD/2013 & ITA NO.320/AHD/2013 NILAM RAHUL PATEL VS. DCIT, CENTRAL CIRCLE-1, BAROD A. A.YS.2009-10. - 22 - THE AMOUNT WHICH WAS NOT A FRESH REMITTANCE DURING THE YEAR BUT IT WAS A REMITTANCE ACCUMULATED OVER THE YEARS AND MADE PART OF THE CAPITAL ACCOUNT BY A TRANSFER ENTRY. HENCE, WE HEREBY UPHOL D THE VIEW TAKEN BY LEARNED CIT(A). THIS PART OF THE GROUND IS THEREFOR E DISMISSED. 18. IN THE RESULT, APPEAL OF THE REVENUE IS PARTLY ALLOWED. 19. FINAL OUT COME IS THAT ASSESSEES APPEAL IS DISMISSED AND THE REVENUES APPEAL IS PARTLY ALLOWED. SD/- SD/- (N.S. SAINI) ( MUKUL KR. SHRAWAT) ACCOUNTANT MEMBER JUD ICIAL MEMBER AHMEDABAD; DATED 27/06/2014 PRABHAT KR. KESARWANI, SR. P.S. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)-III, AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE. / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD