Ms. Afsha Talwar, New Delhi V. ACIT, New Delhi

ITA 3202/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 77750 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-06-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 16-04-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 21-05-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A MISHRA
• Keywords: Unexplained investment; Unexplained expenditure; Search and seizure; Valuation report
• Section: 69C; 142(1); 153A; 147; 69; 132

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A : NEW DELHI BEFORE SHRI S. V. MEHROTRA , ACCOUNTANT MEMBER AND SHRI A. T. VARKEY, JUDICIAL MEMBER ITA NO. 3202 /DEL/ 2013 (ASSESSMENT YEAR: 2003 - 04 ) ITA NO. 3205 /DEL/ 2013 (ASSESSMENT YEAR: 2004 - 05 ) ITA NO. 3203 /DEL/ 2013 (ASSESSMENT YEAR: 2005 - 06 ) ITA NO. 3201 /DEL/ 2013 (ASSESSMENT YEAR: 2006 - 07 ) ITA NO. 3204 /DEL/ 2013 (ASSESSMENT YEAR: 2007 - 08 ) AFSHA TALWAR F - 2, MAHARANI BAGH NEW DELHI PAN: ABZPT6201E VS. ACIT CIRCLE - 23(1) NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY : DEEPAK KAPOOR, ADV. RESPONDENT BY : SMT A . MISHRA, CIT DR O R D E R PER BENCH THESE APPEALS ARE PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD CIT(A) - XI, NEW DELHI DATED 13.03.2013 FOR THE ASSESSMENT YEARS 2003 - 04 TO 2007 - 08. 2. BRIEF FACTS: - THE UNDISPUTED FACTS IS THAT THE ASSESSEE IS A TEACHER IN SANSKRITI SCHO O L, DR. S RADHA KRISHNAN MARG, CHADAKYA PURI, NEW DELHI AND WAS IN RECEIPT OF SALARY FROM THE SCHOOL. A SEARCH AND SEIZURE OPERATION U/S 132 OF INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) WAS CONDUCTED AT HER RESIDENCE ON 15.02.2008. IT IS ALSO UNDISPUTED THAT THE ASSESSEE HAD FILED REGULAR INCOME TAX RETURNS WITH THE CONCERNED TAX AUTHORITIES FOR ALL THE YEARS PRIOR TO SEARCH AND SEIZURE OPERATIONS. AFTER THE SEARCH , THE FIRST NOTICE U/S 142(1) WAS ISSUED BY THE LD ACIT (CIRCLE 23(1), NEW DELHI ON 17.12.20 09 FOR ALL THE SIX YEARS FOR ASSESSMENT YEAR 2002 - 03 TO ASSESSMENT YEAR 2007 - 08 AND ANOTHER NOTICE U/S 153A READ WITH SECTION 147 WAS ISSUED ON 24.12.2009 RAISING ABOUT 10 - 12 QUERIES FOR ALL THE SAID YEARS. FOR THE ASSESSMENT YEAR 2003 - 0 4 THE ASSESSEE HAD FILED INCOME TAX RETURN SHOWING AN INCOME OF RS. 4,5 6 ,793/ - WHEREAS , THE ASSESSMENT HAS BEEN MADE ON AN INCOME OF RS. 10,34,790/ - RESULTING IN AN ADDITION OF RS. 6,84,000/ - . SIMILARLY FOR THE ASSESSMENT YEAR 2004 - 05 , THE ASSESSEE HAD FILE D HER RETURN OF INCOME DECLARING A TOTAL INCOME OF RS. 3,98,334/ - , WHEREAS THE ASSESSMENT HAS BEEN MADE ON AN INCOME OF RS. 6,98,334/ - RESULTING IN A N ADDITION OF INCOME OF RS. 3,00,000/ - . SIMILAR LY FOR ASSESSMENT YEAR 2005 - 06 , THE ASSESSEE HAD FILED ITS RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 23,86,590/ - , WHEREAS , THE ASSESSMENT HAS BEEN MADE ON AN INCOME OF RS. PAGE NO. 2 26,71,594/ - RESULTING I N AN ADDITION OF RS. 2,85,000/ - AND THE ENTIRE ADDITION FOR ALL THESE YEARS WERE COMPLETED WITHIN 13 DAYS AFTER ISSUE OF STATUTORY NOTICES. 3 . BEING AGGRIEVED BY THE SAID ADDITIONS, THE ASSESSEE FILED AN APPEAL BEFORE THE LD CIT(A) WHO WAS PLEASED TO GRAN T PARTIAL RELIEF , HOWEVER THE CLAIM OF THE ASSESSEE THAT THE INCREASE OF AMOUNT FOUND IN HER BANK ACCOUNTS WERE DUE TO DEPOSIT OF TUITION FEE WHICH SHE HA D EARNED DURING THE RELEVANT PERIOD WAS NOT ACCEPTED BY THE LD CIT(A). AGGRIEVED BY THE SAID ORDER OF THE LD CIT(A) THE ASSESSEE IS BEFORE US. 4 . SINCE THE GROUNDS OF APPEAL IN ALL THE THREE YEARS FROM ASSESSMENT YEAR 2003 - 04 TO ASSESSMENT YEAR 2005 - 06 ARE ALL THE SAME AND SIMILAR ; AND THE FACTS AND ISSUES FOR THE ASSESSMENT YEAR 2003 - 04 TO ASSESSMENT YEAR 2005 - 06 ARE SAME , FOR THE SAKE OF BREVITY AND TO AVOID REPETITION THE SAME ARE TAKEN AND ADJUDICATED TOGETHER. THEREFORE THE GROUNDS OF APPEAL FOR ASSESSMENT YEAR 2003 - 04 IS ADJUDICATED FOR ALL THE SAID 3 YEARS. THE GROUNDS OF APPEAL FOR THE ASSESSMENT YEAR 2003 - 04 ARE AS FOLLOWS: - 1. BECAUSE ON FACTS AND IN LAW CONFIRMING THE ADDITION OF RS. 3,41,000/ - IS TOTALLY WRONG, UNJUSTIFIED AND ILLEGAL. ASSESSEE HAD EARNED INCOME FROM TUITION AND THE CASH GENERATED THROUGH TUITION INCOME HAS BEEN DEPOSITED IN JOINT BANK ACCOUNT MAINTAINED WITH HER HUSBAND. TUITION INCOME WAS DULY OFFERED FOR TAXATION. BUT LD ASSESSING OFFICER TAXED THE CASH DEPOSITED IN BANK ACCOUNT AND THE SAME WAS CONFIRMED BY LD CIT(A) ON THE BAS IS THAT CASH DEPOSITED IN BANK ACCOUNT ARE VARYING. THEREFORE, ON THE BASIS TAKEN & METHOD ADOPTED AND ON THE LEGAL PRINCIPLE THAT THE INCOME CAN NOT BE TAXED (ONCE WHEN RECEIVED BY THE ASSESSEE AND AGAINST WHEN DEPOSITED IN BANK ACCOUNT), THE ADDITION O F RS. 3,41,000/ - DESERVES TO BE DELETED IN FULL. 2. BECAUSE THE ADDITION HAS BEEN MADE UNDER SECTION 69 OF THE ACT WITHOUT TAKING INTO CONSIDERATION THE EXPLANATION OF THE ASSESSEE THAT THE CASH DEPOSIT IS OUT OF TUITION INCOME WHICH HAS ALREADY BEEN OFFE RED FOR TAXATION IN THE IT RETURNS AND THE ASSESSEE HAS PAID FULL TAX ON THE SAME. 3. BECAUSE THE LD ASSESSING OFFICER IN THE ASSESSMENT ORDER ITSELF HAS RE - PRODUCED THE EXPLANATION TO BANK ENTRIES WHEREIN CASH DEPOSIT IS EXPLAINED OUT OF TUITION INCOME. THE LD ASSESSING OFFICER HAS TAXED THE TUITION INCOME AND ALSO TAXED THE CASH DEPOSIT IN THE BANK SEPARATELY. HENCE THE ASSESSMENT ORDER IS PERVERSE. THE IMPUGNED ORDER WHICH CONFIRMS THE ADDITION IS ALSO PERVERSE AND IS NOT MAINTAINABLE. 5 . APROPOS SINGL E GROUND I.E. CONFIRMATION OF ADDITION OF RS. 3,41,000/ - CLAIMED BY ASSESSEE AS TUITION FEES IN HER REGULAR RETURN FILED AS HER UNDISCLOSED INCOME UNDER SECTION 69 OF THE ACT. 6 . FOR THE ASSESSMENT YEAR 2003 - 04, THE ASSESSEE HAD FILED INCOME TAX RETURN SHOWING AN INCOME OF RS. 4,56,793/ - WHEREAS, THE ASSESSMENT HAS BEEN MADE U/S 153A READ WITH SECTION 147 ON AN INCOME OF RS. 10,34,790/ - RESULTING INTO AN ADDITION OF RS. 6,84,000/ - . PAGE NO. 3 7 . AGGRIEVED BY THE SAID ADDITION MADE BY THE ASSESSING OFFICER, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD CIT(A) WHO HAS GIVEN PART IAL RELIEF TO THE ASSESSEE , WHEREIN , IN RESPECT OF ADDITION OF RS. 6,84,000/ - , THE LD CIT(A) HAS MADE A FINDING THAT AN AMOUNT OF RS. 3,92,000/ - ADDED BY THE ASSESSING OFFICER IN THE HANDS OF THE ASSESSEE IS NOT CORRECT, S INCE THE VERY SAME AMOUNT WAS ADDED AND ASSESSED IN THE HANDS OF THE HUSBAND OF THE ASSESSEE , THEREFORE IT WOULD NOT BE APPROPRIATE TO A GAIN ADD IT IN THE HANDS OF THE ASSESSEE. AND THEREFORE THE ADDITION OF RS. 3,43,000/ - WAS THEREFORE DELETED. HOWEVER, THE ASSESSEE S CLAIM THAT AN AMOUNT OF RS. 3,60,000/ - WHICH WAS SHOWN AS INCOME FROM TUITIONS WAS NOT ALLOWED BY THE LD CIT(A) AND THAT ORDER OF THE ASSESSING OFFICER WAS UPHELD AND CONFIRMED BY THE LD CIT(A) . AGGRIEVED BY THIS ORDER OF THE LD CIT(A) THE ASSESSEE IS BEFORE US. 8 . THE LD AR SUBMITTED THAT THE ASSESSEE IS A SCHO O L TEACHER IN SANSKRITI SCHOO L, DR. S RADHA KRISHNAN MARG, CHAN AKYA PURI, NEW DELHI AND WAS IN RECEIPT OF SALARY OF RS. 90,793/ - FROM THE SAID SCHOOL. SHE HAD ALSO FILED HER REGULAR RETURN U/S 139(1) OF THE ACT ON TIME , FOR THE RELEVANT ASSESSMENT YEAR 2003 - 04 ON 22.09.2003 DECLARING A TOTAL INCOME OF RS. 4,50,793/ - FROM SALARY AND OTHER SOURCES. SHE IN HER RETURN HAD CLAIMED THAT AN AMOUNT OF RS. 3,63,000/ - WAS RECEIVED BY HER AS INCOME FROM TUITION AND RS. 69/ - AS INTEREST INCOME ON SAVING IN THE BANK. THE LD AR BROUGHT TO OUR NOTICE OF THE FACT THAT NOTICE U/S 143(2) OF THE ACT WAS ISSUED ONLY ON 17.12.2009 AND DULY SERVED UPON THE ASSESSEE IN PERSON ON THE SAME D AY AND IT WAS ACCOMPANIED WITH A DETAILED QUESTIONNAIRE. IN THE SAID NOTICE DATED 17.12.2009 , THE ASSESSEE WAS ASKED TO FURNISH STATEMENT OF AFFAIR AND INCOME AND EXPENDITURE ACCOUNT FOR THE ASSESSMENT YEAR 2001 - 02 AND FOR ASSESSMENT YEAR 2002 - 03 TO 2007 - 08. IN RESPONSE TO THE SAID NOTICE THE ASSESSEE FILED THE BALANCE SHEET AS ON 31.03.2002 AND 3 1.03.2003 ALONG WITH CAPITAL ACCOUNT FOR ASSESSMENT YEAR 2003 - 04 WAS SUBMITTED ON 24.12.2009. THE LD AR POINTED OUT THAT THE ASSESSEE HAD MAINTAINED A SAVING BANK ACCOUNT NO. 3278 WITH DENA BANK, NOIDA IN THE JOINT NAME WITH HER HUSBAND SHRI ASHWANI TALWAR AS FIRST NAME IN THE SAID ACCOUNT. DURING THIS PERIOD THE ASSESSEE HA D ALSO OPENED A SAVING BANK ACCOUNT NO. 50084 WITH BANK OF BARODA, CHANKYA PURI BRANCH. IN THE BANK OF BARODA ACCOUNT MAINLY THE CREDITS ARE FROM SALARY CHEAUES WHICH AMOUNT TO RS. 90 , 79 3/ - AND ALSO CERTAIN AMOUNT TRANSFERRED FROM THE BANK ACCOUNT OF SHRI ASHWANI TALWAR, HUSBAND OF THE ASSESSEE. IT WAS CONTENDED BY THE LD AR THAT TH E FOLLOWING AMOUNT WAS DEPOSITED IN CASH IN JOINT BANK ACCOUNT NO. 3278 BY THE ASSESSEE OUT OF HER TUITION INCOME: - DATE AMOUNT CONTENTIONS 04.05.2002 25,000 OUT OF TUITION INCOME OF THE APPELLANT. HOWEVER THE IT DEPARTMENT ADDED THE SAME U/S 69 IN THE HANDS OF THE APPELLANT AGAIN. 05.05.2002 1,000/ - DO PAGE NO. 4 13.08.2002 20,000/ - DO 06.09.2002 20,000/ - DO 16.09.2002 1,00,000/ - DO 01.10.2002 25,000/ - DO 14.11.2002 25,000/ - DO 24.12.2002 40,000/ - DO 07.01.2003 35,000/ - DO 03.02.2003 25,000/ - DO 03.03.2003 25,000/ - DO 9 . THEREFORE, ACCORDING TO THE LD AR, THIS AMOUNT DEPOSITED IN THE ACCOUNT WORK OUT TO RS. 3 , 41,000/ - . AND FOR THE RELEVANT ASSESSMENT YEAR THE ASSESSEE HAD DECLARED A TOTAL INCOME OF RS. 4,50,790/ - WHICH INCLUDED RS. 3,60,000/ - AS TUITION INCOME ALSO . YET ACCORDING THE LD AR THE ASSESSING OFFICER ERRONEOUSLY ADDED RS. 3,41,000/ - OVER AND ABOVE RS. 3,60,000/ - WITHOUT GIVING ANY CREDIT FOR RS. 3,60,000/ - WHICH WAS ALREADY TAXED IN HER HANDS IN THE RELEVANT ASSESSMENT YEAR ITSELF. THE LD AR POINTED OUT THAT AFTER THE SEARCH AT HER PREMISES ON 15.02.2008, THE FIRST NOTICE WAS ISSUED ONLY ON 17.12.2009 AND THE ASSESSMENT WAS COMPLETED FOR ALL THE ASSESSMENT YEARS FROM ASSESSMENT YEAR 2003 - 04 TO 2007 - 08 WITHIN A SHORT SPAN OF 13 DAYS, WHICH ACCORDING TO THE LD AR WAS TOO SHORT A PERIOD OF TIME , TO ASSESS THE ASSESSEE FOR ALL THE SIX ASS ESSMENT YEARS ; AND THE ASSESSING OFFICER WAS IN A HURRY TO SOMEHOW MAKE SOME ADDITION AND HAVE HASTILY COMPLETED THE ASSESSMENT PROCEEDING. ACCORDING TO THE LD AR, IT WILL BE EVIDENT FROM A PERUSAL OF THE ASSESSMENT ORDER ITSELF, WHEREIN , THE ALREADY TAXED INCOME HAS BEEN TAXED AGAIN IN THE HANDS OF THE ASSESSEE AS UNDISCLOSED INCOME , WHEREAS , THE INCOME UNDER QUESTION WAS DULY REFLECTED IN THE REGULAR RETURN FILED BY THE ASSESSEE AND SUBJECTED TO TAX DURING THE RELEVANT FINANCIAL YEAR AS TUITION INCOME ; AN D THE SAID TUITION FEE INCOME OF RS. 3 ,41,000/ - HAS BEEN ADDED TWICE BY THE ASSESSING OFFICER, WHICH ACCORDING TO THE LD AR IS NOT PERMISSIBLE AS PER THE ACT. THEREFORE THE LD AR PLEADS THAT THE ADDITION OF RS. 3,41,000 / - FOR ASSESSMENT YEAR 2003 - 04 AND FOR SUBSEQUENT YEARS IN RESPECT OF TUITION FEE INCOME OF THE ASSESSEE SHOULD BE DELETED. ON THE OTHER HAND , THE LD DR POINTED OUT THE TUITION INCOME SHOULD HAVE BEEN SPREAD FOR 12 MONTHS , WHEREAS THERE WERE UNEXPLAINED CASH DEPOSIT OF BIGGER AMOUNTS, WHICH COULD NOT BE EXPLAINED BY THE ASSESSEE EVEN WHEN THE REMAND REPORT WAS PREPARED BY THE ASSESSING OFFICER . THE ASSESSING OFFICER HAS STATED THAT THE AMOUNT STANDS UNEXPLAINED AND THE ASSESSEE HAS FAILED TO GIVE ANY DETAILS OF THE NUMBER OF STUDENTS TAKING TUITIONS OR THE MONEY CHARGED FROM EACH STUDENT. THE LD DR TOOK OUR ATTENTION TO VARIOUS CASH DEPOSITS WHICH WAS DEPOSITED IN THE BANK ACCOUNT AND WHICH HAS BEEN TERMED BY THE ASSESSEE AS TUITION FEES. ACCORDING TO HIM THE AMOUNTS ARE VARYING. IN ONE MONTH , IT IS RS. 25,000/ - , IN ANOTHER MO N THS IT IS RS. 1,00,000/ - AND IN ANOTHER MONTH IT IS RS. 40,000/ - . THEREFORE IT IS CONTENDED BY THE LD DR THAT IT IS UNLIKELY THAT TUITION INCOME WOULD VARY SO MUCH FROM MONTH TO MONTH AND IT IS ALSO UNLIKELY THAT THE ASSESSEE WOULD KE EP THE CASH AT HOME AND DEPOSIT IT LATER. THE LD PAGE NO. 5 DR POINTED OUT THAT THE EVEN AN AMOUNT OF RS. 1,000/ - CASH HAS BEEN DULY DEPOSITED BY THE ASSESSEE ON 05.05.2002 MEANING THAT IF THE ASSESSEE GOT ANY INCOME FROM TUITION SHE COULD HAVE PROMP TLY DEPOSITED THE SAID INCOME IN THE BANK AND NOT KEP T IT IN HER HOUSE TO ACCUMULATE AND LATER DEPOSIT AS LUMP SUM AMOUNT, SO THE LD DR TRIES TO BRING OUT THE CONTRADICTION IN THE EXPLANATION GIVEN BY THE ASSESSEE IN RESPECT TO TUITION INCOME HIGHLIGHTING THE LUMP - SUM DEPOSIT S IN THE ACCOUNT OF THE ASSESSEE. ACCORDING TO THE LD DR, TAKING THESE ASPECTS INTO CONSIDERATION THE LD CIT(A) HAS RIGHTLY UPHELD THE SAID AMOUNT DEPOSITED IN THE ACCOUNT AS UNDISCLOSED SOURCE OF INCOME AND THEREFORE ACCORDING TO HIM IT IS UN NECESSARY TO INTERFERE WITH THE IMPUGNED ORDER . 10 . WE HAVE HEARD BOTH THE PARTIES AND HAVE PERUSED THE RECORD CAREFULLY AND HAVE GONE THROUGH THE CASE LAWS CITED BY BOTH THE PARTIES. THE ASSESSEE WHO IS ADMITTEDLY A TEACHER HAS BEEN RECEIVING MON T H LY SALARY FROM THE SANSKRITI SCHOOL IN ALL THE RELEVANT ASSESSMENT YEARS UNDER ADJUDICATION. IT IS AN ADMITTED FACT THAT THE ASSESSEE HAS BEEN FILING RETURNS AND HAS BEEN CONSISTENTLY CLAIMING IN THE SAID RETURN CERTAIN INCOME AS HER TUITION FEE INCOME F OR THE ASSESSMENT YEARS UNDER ADJUDICATION. THE AMOUNT WHICH HAS BEEN REFLECTED AS TUITION FEE INCOME HAS BEEN SHOWN IN THE REGULAR RETURN FILED U/S 139(1) AND THE SAME WAS ACCEPTED BY THE REVENUE AUTHORITIES. THE ISSUE OF REOPENING OF ALL THE ASSESSMENT YEARS WAS DUE TO THE FACT THAT SEARCH WAS CONDUCTED IN THE PREMISES OF M/S. ATS GROUP ; AND SEARCH WAS ALSO CONDUCTED IN THE PREMISES OF THE HUSBAND OF THE ASSESSEE, SHRI A S HWANI TALWAR AND THE ASSESSEE, SMT. AFSHA TALWAR SITUATED AT F - 2, MAHARANI BAGH, NEW DELHI AND W - 102/5, ANUPAM GARDEN, LANE NO. 6, SAKET, NEW DELHI. THEREAFTER, WE FIND THAT THE ASSESSMENT U/S 153A OF HER HUSBAND SHRI ASHWANI TALWAR WAS CARRIED OUT BY THE ACIT, CENTRAL CIRCLE, MEERUT ; WHEREAS THE CASE OF THE ASSESSEE WAS COMPLETED BY THE ASSESSING OFFICER, ACIT, CENTRAL CIRCLE, 23(1), NEW DELHI. WE ALSO FIND THAT THE FIRST NOTICE U/S 143(2) WAS ISSUED ON 17.12.2009 ALONG WITH QUESTIONNAIRE AND THE ENTIRE ASSESSMENT FOR THE PERIOD WAS COMPLETED ON 30. 1 2.2009. THERE IS NO DISPUTE ABOUT THE F ACT THAT THE RETURN S WERE FILED BY THE ASSESSEE REGULARLY EVERY YEA R UNDER SECTION 139(1) AND THE VERACITY OF THE CLAIM OF THE ASSESSEE IN RESPECT TO HER CERTAIN INCOME AS TUITION FEE INCOME HAS NOT BEEN QUESTIONED IN ANY OF THE ASSESSMENT YEAR S UNDER CHALLENGE BY ANY OF THE ASSESSING OFFICER . HERE WE FIND THAT THE ASSESSING OFFICER HAS MADE THE ADDITION BY STATING THAT THE ASSESSEE HAS FAILED TO FURNISH THE NAME OF THE STUDENTS OR THE NUMBER OF THE STUDENTS OR THE FEE STRUCTURE OF THE STUDENT AND ON THE SAID GROUND S WITHIN 13 DAYS HAS FORMED AN OPINION THAT THE ASSESSEE S CLAIM AS VAGUE AND ADDED THE SAME AS INCOME FROM UNDISCLOSED SOURCE, WHICH ACCORDING TO US CANNOT BE COUNTENANCED. WITHOUT ANY SPECIFIC INCRIMINATING MATERIALS ON RECORD WHICH AR E EITHER COLLECTED DURING SEARCH OPERATION OR DURING THE 153A PROCEEDINGS THE ASSESSING OFFICER OUGHT NOT , MERELY ON THE BASIS OF CONJECTURE PAGE NO. 6 AND SURMISES , CANNOT BASE THE IMPUGNED ADDITION AS INCOME FROM UNDISCLOSED INCOME ; AND MOREOVER IT HAS TO BE TAKEN NOTE THAT THE SAID INCOME WAS A DISCLOSED INCOME AND NOT UNDISCLOSED INCOME AS HELD BY THE AUTHORITIES BELOW ; AND IT NEED TO BE APPRECIATED THAT THE ASSESSEE IS ADMITTEDLY A TEACHER IN A PRIVATE SCHOOL AND ASSESSEES REGULA R RETURNS WERE AC CEPTED BY THE ASSESSING OFFICERS BEFORE AND SHE HA D BEEN EARLIER TAXED FOR THE SAID TUITION INCOME IN THOSE YEARS ; IN THE LIGHT OF THE FACTS AND CIRCUMSTANCES , WE FIND THAT THE IMPUGNED ADDITION OF THE TUITION INCOME , AS INCOME FROM UNDISCLOSED SOURCE IS NOT PERMISSIBLE IN THE EYES OF LAW PARTICULARLY EVEN IN THE YEAR UNDER CONSIDERATION, SUM OF RS. 3,60,000/ - HAS BEEN DECLARED AND ASSESS ED AS TUITION INCOME. THERE IS NO MATERIAL TO SHOW THAT RS. 3,41,000/ - IS FROM A S OURCE OTHER THAN THE TUITION INCOME ; THEREFORE THE IMPUGNED ADDITION MADE BY THE ASSESSING OFFICER AND LATER ON CONFIRMED BY THE LD CIT(A) IN RESPECT OF TUITION FEE INCOME, WHICH THE ASSESSEE HAS BEEN CONSISTENTLY CLAIMING CANNOT BE SAID TO BE HER INCOME FROM UNDISCLOSED SOURCE ; AND HER CLAIM IN THE REGULAR RETURN FILED IN RESPECT TO TUITION INCOME BEING ACCEPTED AND TAXED BY THE PREDECESSOR ASSESSING OFFICERS CANNOT BE DISCARDED IN THE ABSENCE OF ANY SPECIFIC INCRIMINATING MATERIALS TO SUGGEST OTHERWISE ; AND WE HOLD THAT THE IMPUGNED ADDITION BASED ON CONJECTURES AND SURMISES AS ERRONEOUS AND THEREFORE HAVE TO BE SET ASIDE ; AND WE DIRECT THE ASSESSING OFFICER TO DELETE ALL THE ADDITION S MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD CIT(A) IN RESP ECT TO THE CLAIM OF THE ASSESSEE IN RESPECT TO TUITION FEE INCOME FOR ALL THE ASSESSMENT YEAR UNDER CONSIDERATION FROM ASSESSMENT YEAR 2003 - 04 TO ASSESSMENT YEAR 2007 - 08. 11 . IN THE RESULT THE APPEAL PREFERRED BY THE ASSESSEE ON THIS GROUND SUCCEEDS AND W E ALLOW THE SAME. 12 . IN RESPECT OF ASSESSMENT 2006 - 07 THE GROUND OF APPEAL ARE AS FOLLOWS: - 1. BECAUSE ON FACTS AND IN LAW AND ON GROUNDS TAKEN AND BASIS ADOPTED, CONFIRMING THE ADDITION OF RS.3,90,000/ - MADE U/S 69B OF THE ACT IS TOTALLY WRONG, UNJUSTIFIED AND ILLEGAL. 2. BECAUSE THE LD CIT(A) DID NOT TAKE INTO CONSIDERATION THE PAYMENT OF RS. 3,9 0,000/ - MADE BY THE ASSESSEE TO M/S SHAH CONSTRUCTION OUT OF HER SAVINGS BANK ACCOUNT WITH HDFC BANK. THE CIT(A) ALSO IGNORED THE CONFIRMATION CERTIFICATE FROM M/S SHAH CONSTRUCTION FILED. 3. BECAUSE FACTS AND IN LAW ADDITION OF RS. 31,989/ - MADE UNDER SE CTION 69C OF THE ACT IS TOTALLY WRONG, UNJUSTIFIED AND ILLEGAL. 4. BECAUSE THE LD CIT(A) WRONGLY HELD THAT AFTER INVESTING IN HOUSE CONSTRUCTION, THE CASH BALANCE WOULD NOT BE SUFFICIENT TO MAKE THE EXPENDITURE OF RS. 31,898. THE CONSTRUCTION EXPENDITURE WERE INCURRED BY CHEQUE OUT OF HDFC BANK. 5. BECAUSE THE LD CIT(A) HAS HERSELF ADDED ENTIRE AMOUNT OF RS. 3,90,000/ - AS UNEXPLAINED INVESTMENT IN HOUSE WITHOUT CONSIDERING CASH IN HAND AVAILABLE WITH ASSESSEE. HENCE THE IMPUGNED ORDER IS PERVERSE AND CONT RADICTORY, THEREFORE, NOT MAINTAINABLE IN LAW. PAGE NO. 7 6. BECAUSE THE ADDITION OF RS. 11,012/ - ON ACCOUNT OF DIFFERENCE IN INTEREST INCOME IS TOTALLY WRONG, UNJUSTIFIED AND ILLEGAL. LD ASSESSING OFFICER TOOK INTEREST INCOME OF RS. 77,924/ - AS AGAINST INCOME OF R S.77,112/ - OFFERED BY ASSESSEE. AS THERE IS DIFFERENCE OF INTEREST INCOME IS ONLY RS. 812/ - 7. BECAUSE THE LD CIT(A) FAILED TO APPRECIATE THAT ONLY ADDITION OF RS. 812/ - REQUIRED TO BE MADE. 13 . APROPOS CONFIRM ATION OF THE ADDITION OF RS. 3,90,000/ - MADE U/S 69B OF THE ACT ON ACCOUNT OF CONSTRUCTION OF HOUSE. 14 . BRIEF FACTS ARE AS FOLLOWS: - DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE/ APPELLANT HAD SHOWN CONSTRUCTION ON A PLOT OF LAND AT A COST OF RS. 3,90,000/ - . THE ASSESSING OFFICER SENT AN INSPECTOR TO INSPECT THE SITE. THE INSPECTOR STATED IN HIS REPORT THAT THE APPELLANT HAD CONSTRUCTED A HALL, DINING ROOM, KITCHEN AND BATH AND SERVANTS QUARTER ON THE PREMISES. A COPY OF THIS REPORT WAS GIVEN TO THE APPELLANT. THE ASSESSIN G OFFICER ALSO OBTAINED INFORMATION FROM THE DM SPECIFYING THE RATE OF CONSTRUCTION FOR RESIDENTIAL PREMISES FOR STAMP DUTY PURPOSES. THE ASSESSING OFFICER THEN ASKED THE APPELLANT AS TO WHY A RATE OF RS. 5,500/ - SQ METER AS PER THE NOTIFIED RATES MAY NOT BE APPLIED FOR ESTIMATING THE COST OF CONSTRUCTION ON THE SAID PLOT OF LAND. THE APPELLANT STATED THAT THE COST OF CONSTRUCTION WAS 3 RD CLASS AND THE CONSTRUCTION WAS OF A TEMPORARY NATURE. AND FURTHER THE HUSBAND OF THE APPELLANT BEING IN CONSTRUCTION BUS INESS COULD PROCURE RAW MATERIAL AND LABOUR AT THE CHEAPEST RATES. THE APPELLANT SUBMITTED BEFORE THE ASSESSING OFFICER A VALUATION REPORT OF A GOVERNMENT APPROVED REGISTERED VALUER WHO ESTIMATED THE COST AT RS. 3,72,000/ - . THE ASSESSING OFFICER IGNORED THE REGISTERED VALUERS REPORT AND TOOK THE DMS NOTIFIED CIRCLE RATE AS THE BASIS AND ESTIMATED COST OF CONSTRUCTION AT RS. 5,60,000/ - . BESIDES, HE ESTIMATED AN AMOU N T OF RS. 2,00,000/ - FOR THE FILING AND LANDSCAPING OF THE LAWN. THE TOTAL COST WA S THUS ESTIMATED AT RS. 7,60,000/ - . THE ASSESSING OFFICER STATED THAT AFTER CONSIDERING ALL THE CASH AVAILABLE WITH THE APPELLANT, THE EXPLAINED SOURCE OF INVESTMENT WAS RS. 1,18,351/ - . THE BALANCE OF RS. 7,60,000/ - RS. 1,18,351/ - I.E. RS. 6,41,649/ - WAS CO NSIDERED AS UNEXPLAINED INVESTMENT. 15 . AGGRIEVED BY THE SAID ORDER OF THE ASSESSING OFFICER, THE ASSESSEE FILED AN APPEAL BEFORE THE LD CIT(A) WHO WAS PLEASED TO GRANT PARTIAL RELIEF TO THE ASSESSEE, BY ACCEPTING THE VALUE OF THE CONSTRUCTION WORKED OUT BY THE REGISTERED VALUER AND WHICH WAS CLAIMED BY THE ASSESSEE AT RS. 3,90,000/ - . HOWEVER, HE HELD THAT THAT THE SAID AMOUNT SPENT ON CONSTRUCTION TO BE UNEXPLAINED INVESTMENT U/S 69B OF THE ACT. BEING AGGRIEVED BY THE SAID ORDER OF THE LD CIT(A), THE ASSE SSEE IS BEFORE US. 16 . THE LD AR SUBMITTED THAT THE APPELLANT DULY EXPLAINED THE SOURCE OF INVESTMENT OF RS. 3,90,000/ - BEING PAYMENT MADE TO M/S SHAH CONSTRUCTION, A PROPRIETARY CONCERN OF PAGE NO. 8 MR. A. K. SHAH WHO WAS THE CO - DIRECTOR WITH THE HUSBAND OF THE A PPELLANT. ACCORDING TO THE LD AR, THE BANK STATEMENT OF THE ASSESSEES BANK ACCOUNT CLEARLY SHOWS THAT THE CHEQUE OF RS. 3,90,000 HAS BEEN ISSUED TO M/S SHAH CONSTRUCTION ON 21.12.2009 AND TOOK OUR ATTENTION TO THE COPY OF BANK ACCOUNT AND CONFIRMATION CER TIFICATE BY M/S SHAH CONSTRUCTION. ACCORDING TO THE LD AR, THE A O HAD NO REASON TO ASSUME THAT THE CONSTRUCTION MONEY WAS SPENT OUT OF UNDISCLOSED INCOME. NEITHER ANY QUERY WAS RAISED BY THE AO, IN THIS RESPECT NOR DID THE AO CARED TO CONSIDER THE BANK AC COUNT SUBMITTED BY THE APPELLANT DURING THE ASSESSMENT PROCEEDI NGS . FURTHER IT WAS SUBMITTED BY THE LD AR THAT ADDITION OF RS. 3,90,000/ - PAID BY THE APPELLANT OUT OF HER SAVING BANK ACCOUNT WITH HDFC BANK, THE CASH AS WORKED OUT BY THE LD AO WAS ALSO AVA ILABLE WITH THE APPELLANT. THE LD AR SUBMITTED THAT THE AO HAS TOTALLY IGNORED THE BANK STATEMENT FILED AND EXPLANATION GIVEN DURING THE ASSESSMENT PROCEEDINGS. THEREFORE ACCORDING TO THE LD AR, THIS GOES TO SHOW THAT THE ADDITION HAS BEEN MADE IN HASTE ON THE BASIS OF CONJECTURES AND SURMISES AND THE SAME OUGHT TO BE DELETED IN FULL. ON THE OTHER HAND THE LD DR RELIED UPON THE ORDER OF THE ASSESSING OFFICER AND LD CIT(A) AND DOES NOT WANT US TO DISTURB THE SAME. 17 . WE HAVE HEARD BOTH THE PARTIES AND HAVE PERUSED THE RECORDS. WE FIND THAT THE LD CIT(A) HAS HELD AFTER CONSIDERING THE REPORT OF THE REGISTERED VALUER AND THE CLAIM OF THE ASSESSEE AS TO THE COST OF CONSTRUCTION WAS ACCEPTED TO BE RS. 3,90,000/ - . HOWEVER THE ONLY DISPUTE IS THAT WHETHER THE ASSESSEE HAD THIS AMOUNT (DISCLOSED INCOME) IN HER HANDS TO FINANCE THE CONSTRUCTION. ACCORDING TO THE LD CIT(A), SINCE THE ASSESSING OFFICER HAD HELD THAT THE TUI TION INCOME CLAIMED BY THE ASSESSEE IN HER DULY FILED RETURNS AND WHICH WERE TAXED IN THE RELEVANT A SSESSMENT Y EAR S TO BE U NDISCLOSED INCOME, HE HELD THE ENTIRE INVESTMENT MADE ON THE CONSTRUCTION I.E. 3,90,000/ - TO BE FROM THAT OF ASSESSEES UNDISCLOSED I NCOME. THIS REASONING OF THE LD CIT(A) CANNOT BE SUSTAINED FOR THE SIMPLE REASON THAT WE HAD ALREADY HELD THAT THE ASSESSEE/ APPELLANT WAS IN RECEIPT OF TUITION INCOME WHICH WAS REGULARLY REFLECTED BY HER IN HER DULY RETURNED INCOME FILED U/S 139(1) ; AND R EGULARLY BRO U GHT TO TAX AND HAS BEEN AS A FACT TAXED IN THE HANDS OF THE ASSESSEE; AND MOREOVER WE FIND THAT THE ASSESSEE/ APPELLANT HAD SUFFICIENT DISCLOSED INCOME IN HER SAVING BANK S ACCOUNTS (P.B.53) TO FINANCE THE CONSTRUCTION ; AND THE AMOUNT OF RS. 3, 90,000/ - HAS BEEN PAID BY CHEQUE FROM HDFC BANK ACCOUNT ON 21 ST DECEMBER 2005 ; AND M/S. SHAH CONSTRUCTION HAS CONFIRMED VIDE DOCUMENT DATED 23.11.2009 THAT IT HAS RECEIVED RS. 3,90,000/ - FROM ASSESSEE. SO WE DELETE THE SAID IMPUGNED ADDITION OF RS. 3,90,000/ - . THEREFORE THIS GROUND OF THE APPEAL IS ALLOWED. 18 . APROPOS ADDITION OF RS. 31,989/ - U/S 69C OF THE INCOME TAX ACT, 1961. PAGE NO. 9 19 . BRIEF FACTS : THAT DURING THE COURSE OF SEARCH U/S 132 CERTAIN DOCUMEN TS/ RECEIPTS OF CASH WERE FOUND FROM THE RESIDENTIAL PREMISES OF THE APPELLANT AND THE SAME ARE THE FOLLOWING (A) RECEIPT NO. 5563. DATED 05.08.2005 ISSUED BY NOIDA AUTHORITY IN RESPECT OF PAYMENT OF RS. 344/ - ON ACCOUNT OF WATER CHARGES. (B) RECEIPT NO. 43843 DATED 31.07.2005 ISSUED BY NOIDA AUTHORITY IN RESPECT OF PAYMENT OF RS. 15,800/ - ON ACCOUNT OF WATER CHARGES DEPOSITED ON 12.07.2005 IN ORIGINAL BANK OF COMMERCE. (C) COPY OF CHALLAN NO. 7023 WHEREBY A SUM OF RS. 1,400/ - HAS BEEN DEPOSITED IN CASH O N 23.11.2005 IN CANARA BANK, SECTOR - 5, NOIDA. (D) PHOTOCOPY OF RECEIPT DATED 29.03.2006 FOR DEPOSIT OF RS. 2,969/ - IN ORIGINAL BANK OF COMMERCE ON 17.03.2006 . (E) RECEIPT NO. 801813 DATED 28.12.2005 WHEREBY THE AMOUNT OF RS. 4,867/ - IN RESPECT OF ELECTRICITY CHARGES HAS BEEN PAID TO PASCHIMANCHAL VIDYUT VITRAN LTD. NOIDA. (F) RECEIPT NO. 45 ACCORDING TO WHICH AN AMOUNT OF RS. 6,609/ - HAS BEEN PAID TO PASCHIMANCHAL VIDYUT V ITRAN LTD. NOIDA ON 11.07.2005. 20 . A QUESTIONNAIRE W AS ISSUED TO THE ASSESSEE TO EXPLAIN THE ENTRIES RELATING TO THE A.Y. UNDER CONSIDERATION. THE ASSESSEE REPLIED THAT THE SAID EXPENDITURE WAS OUT OF HER WITHDRAWAL. HOWEVER THE AO WAS NOT SATISFIED BY T HE EXPLANATION OF THE ASSESSEE AND ADDED THE AMOUNT I.E. RS. 344 & RS. 15,800/ - +RS. 1,400/ - +RS. 2969/ - + RS. 4,867/ - + RS. 6,60 9/ =RS. 31,989/ - AS UNEXPLAINED EXPENDITURE U/S 69C OF THE ACT. AGGRIEVED BY THE SAID ORDER OF THE AO, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD CIT(A) WHO WAS PLEASED TO DISMISS THE SAME. BEING AGGRIEVED BY THE SAID ORDER OF THE LD CIT(A), THE ASSESSEE IS BEFORE US. 21 . THE LD AR, POINTED OUT THAT THE APPELLANT EARNED IN THE ASSESSMENT YEAR A SUM OF RS. 3,45,000/ - IN CASH OUT OF TUITION INCOME AND VIDE PARA 5 OF THE ASSESSMENT ORDER, THE LD ASSESSING OFFICER HAD CONSIDERED THIS CASH INCOME OF RS. 3,45,000/ - AND THE AO ACCEPTED WITHDRAWAL OF RS. 63,966/ - . HOWEVER, ACCORDING TO THE LD AR, THE AO DID NOT CARE TO TAKE INTO CONS IDERATION THE PAYMENT OF RS. 3,90,000/ - MADE TO M/S SHAH CONSTRUCTION BY CHEQUE FOR THE PURPOSE OF CARRYING OUT CONSTRUCTION ON PLOT AT D - 310, SECTOR 47, NOIDA AND HAS MADE THE IMPUGNED ADDITION ON THE BASIS OF SUSPICION AND THEREFORE IMPUGNED ADDITION OF RS. 31,989/ - MADE U/S 69C OF THE ACT IS TOTALLY WRONG, UNJUSTIFIED AND ILLEGAL. ON THE OTHER HAND THE LD DR RELIED ON THE AOS AND LD CIT(A) ORDER AND DOES NOT WANT US TO DISTURB THE SAME. PAGE NO. 10 22 . WE HAVE HEARD BOTH THE PARTIES AND HAVE GONE THROUGH THE RECORDS, WE FIND THAT THE ASSESSEE HAS MADE AN EXPENDITURE OF RS. 3.1,989/ - FOR THE AY UNDER CONSIDERATION. THE TUITION INCOME OF THE ASSESSEE IN REGULAR RETURN IS RS. 3,45,000/ - . THE AMOUNT INCURRED FOR CONSTRUCTION HAS BEEN PAID BY THE APPELLANT BY CHEQUE FOR RS. 3,90,000/ - TO MS. SHAH CONSTRUCTION AND IT HAS BEEN CONFIRMED BY THE RECEIPT. 23 . HOWEVER, WE FIND THAT THE AO DID NOT TAKE INTO CONSIDERATION, THE FACT OF PAYMENT OF RS. 3,90,000/ - TO M/S . SHAH CONSTRUCTION VIDE CHEQUE NO. 400185 DATED 21 ST DECEMBER, 2005 (PB 53) FOR THE C ONSTRUCTION AT NOIDA AND THOUGH THE AO HAS ACCEPTED THAT AN AMOUNT OF RS. 63,966/ - WAS WITHDRAWN BY THE ASSESSEE FROM THE BANK FOR THE RELEVANT ASSESSMENT YEAR . THE AO H AS ERRED IN MAKING A FINDING THAT EVEN IF THE RECEIPT OF CASH FROM TUITION INCOME IS CONSIDERED FOR THE PURPOSE OF CASH IN HAND WITH ASSESSEE, THE AMOUNT OF WITHDRAWAL AND ALSO THE AMOUNT INVESTED IN CONSTRUCTION OF HOUSE AT PLOT NO. D - 310, SECTOR - 47, NOI DA IS SUFFICIENT TO MEET OUT THE ABOVE EXPENDITURE IN CASH. I THEREFORE REJECT THE CLAIM OF THE ASSESSEE. AND THEREFORE HAS ERRED IN WORKING OUT CASH IN HAND/ WITHDRAWAL FOR HOUSE CONSTRUCTION/ WITHDRAWAL IN C OMPLETE DISREGARD OF THE FACTS AND IS BASED ON CONJECTURES AND SURMISES. THE LD AR TOOK OUR ATTENTION TO PAGE 55 OF THE PB, WHERE CASH FLOW STATEMENT PREPARED BY THE APPELLANT FOR THE FINANCIAL YEAR 2005 - 06 IS FILED AND WE WERE SHOWN THAT THE CASH WITHDRAWAL FOR VARIOUS PAYMENT CONNECTED WITH PLOT NO. D - 310, NOIDA WAS RS. 54,495/ - . WE FIND THAT THE AO HAS ERRONEOUSLY STATED THAT RS. 3,90,000/ - WAS INVESTED IN THE CONSTRUCTION OF HOUSE AT NOIDA FROM CASH IN HAND , WHEREAS THE ASSESSEE HAS MADE THE SAID TRANSACTION THROUGH CHEQUE BEARING NO. 400185 DATED 21 ST DECEMBER 2005 (P.B. 23) . ACCORDINGLY , THE AO ERRED IN WORKING OUT THE CASH POSITION OF THE ASSESSEE AND MADE AN ERRONEOUS ADDITION U/S 69B OF THE ACT AND LD CIT(A) HAS ERRED IN CONF IRMING THE SAME, THEREFORE WE NEED TO BE SET ASIDE THE SAME AND WE ORDER THE IMPUGNED ADDITION TO BE DELETED. 24 . APROPOS ADDITION OF RS. 11,012/ - AS INTEREST INCOME. 25 . BRIEF FACTS OF THE CASE IS AS FOLLOWS : - THE APPELLANT IN HER REGULAR INCOME TAX RETURN HAS SHOWN INCOME FROM OTHER SOURCE WAS AT AT RS. 4,22,112/ - WHICH COMPRISES OF FOLLOWING: - A. TUITION =RS. 3,45,000/ - B. MISC INCOME (BOB INTEREST) =RS. 10,200/ - C. SAVING BANK INTEREST/ =RS. 66,912/ - INTEREST OF BANK ITR 26 . ACCORDING TO THE AO THE TOTAL INTEREST AT WORK OUT TO BE RS. 77,924.43 AND HELD AS UNDER: - PAGE NO. 11 ACCORDINGLY THE CORRECT AMOUNT INTEREST IS RS. 77,924/ - WHICH SHALL BE REPLACED AGAINST THE INTEREST SHOWN BY THIS ASSESSEE ON FDR AND SAVING BANK. 27 . THE LD AR FURTHER SUBMITTED THE APPELLANT FILED BALANCE SHEET AS ON 31 ST MARCH, 2006 AND THE CAPITAL ACCOUNT FOR THE YEAR ENDED 31.03.2006. IN THE CAPITAL ACCOUNT, THE APPELLANT SHOWED THE FOLLOWINGS: - FDR INTEREST = 39,221.83 SAVING BANK INTEREST = 27,690,60 MISC. INCOME (BOB INTEREST) = 10,200 TOTAL = 77,112.53 28 . ACCORDING TO THE LD AR, THE AO DID NOT TAKE INTO CONSIDERATION A SUM OF RS. 10,200/ - AS INTEREST FROM BOB SHOWN IN THE CAPITAL ACCOUNT AND INCLUDED IN THE COMPUTATION SHEET OF INCOME AS MISCELLANEOUS INCOME. THEREFORE THE LD AR SUBMITTED THAT THE LD ASSESSING OFFICER HAS THEREFORE WRON GLY TREATED THE MISCELLANEOUS INCOME OF RS. 10,200/ - AS SHOWN IN THE RETURN AND DID NOT CONSIDER THE SAME AS INTEREST INCOME. THEREFORE, THE ADDITION HAS BEEN WRONGLY CONFIRMED BY THE LD CIT(A) AND TO THE EXTENT OF RS. 10,2000/ - IS WRONGLY MADE AND NEED TO BE DELETED. 29 . AND ONCE RS. 10,200/ - IS DELETED, THE DIFFERENCE IS ONLY OF RS. 812 (RS. 77,924 - 77,112) BETWEEN THE INTEREST INCOME COMPUTED FROM BANK STATEMENT BY THE AO AND BY THE APPELLANT. IT WAS SUBMITTED BY THE LD AR THAT THIS SUM OF RS. 812 IS ON ACCOUNT OF THE FACT THAT AT THE TIME OF FINALIZING THE RETURN THE APPELLANT WAS NOT HAVING FULL BANK ACCOUNT OF CERTAIN NON OPERATIONAL BANKS. THEREFORE, THE APPELLANT ON HER ON WORKED OUT INTEREST AT RS. 77,112/ - WHEREAS, NOW THE AO AS WORKED OUT THE INTE REST AT RS. 77,924/ - FROM THE FULL BANK STATEMENT THEREFORE, THERE IS DISCREPANCIES OF RS. 812/ - WHICH MAY BE ADDED TO THE INCOME OF THE APPELLANT. 30 . ON THE OTHER HAND THE LD DR RELIES ON THE DECISION OF THE LD CIT(A) AND AO. 31 . WE HAVE HEARD BOTH THE SIDES AND PERUSED THE RECORDS. WE FIND THAT IN THE COMPUTATION OF INCOME, THE ASSESSEE HAS SHOWN INCOME FROM OTHER SOURCES WHICH INCLUDES INTEREST OF RS. 39,221.83 ON FDR AND RS. 27,690.60 AS INTEREST ON SAVING BANK. THUS, THE TOTAL OF INTEREST INCOME SHOWN BY ASSESSEE IS RS. 66,912.43 (RS. 39,221.83 + RS. 27,690.60). ALL THESE AMOUNTS OF INTEREST ARE CREDITED IN THE BANK ACCOUNT OF ASSESSEE. PERUSAL OF COPIES OF BANK STATEMENT AND ALSO THE DETAILS OF DEBIT AND CREDIT GIVEN BY ASSESS EE REVEALS CREDIT OF FOLLOWING INTEREST IN HER BANK ACCOUNT. S. NO. NAME OF BANK DATE OF CREDIT PARTICULAR AMOUNT OF INTEREST 1. BANK OF BARODA 09.07.2005 INTEREST 4.457.00 2 BANK OF BARODA 09.01.2006 INTEREST 6.358.00 PAGE NO. 12 3. HDFC BANK LTD. 01.07.2005 INTEREST 18.222.88 4. HDFC BANK LTD. 30.09.2005 INTEREST 7.587.97 5. HDFC BANK LTD. 01.01.2006 INTEREST 1.694.26 6 HDFC BANK LTD. 03.01.2006 INTEREST 39.221.83 7 HDFC BANK LTD. 31.03.2006 INTEREST 185.49 8 DENA BANK 09.09.2005 INTEREST 95.00 9 DENA BANK 08.03.2006 INTEREST 99.00 TOTAL 77,924.43 32 . THAT THE TOTAL INTEREST INCOME AS PER THE COMPUTATION AND ALSO AS PER THE CAPITAL ACCOUNT OF THE APPELLANT IS SHOWN AT RS. 77,112.53/ - . HOWEVER, THE LD ASSESSING OFFICER HAS WORKED OUT THE INTEREST INCOME AT RS. 77,924/ - AS SUCH THERE IS A DIFFERENCE OF RS. 812/ - . THEREFORE WE DIRECT THE DELETION OF ADDITION OF RS. 10,200/ - AND ADD ONLY RS. 812/ - TO THE INCOME OF THE ASSESSEE. 33 . IN RESPECT OF ASSESSMENT 2007 - 08 THE GROUND OF APPEAL ARE AS FOLLOWS: - 1. BECAUSE ON FACTS & IN LAW CONFIRMING THE ADDITION OF RS. 225,000/ - IS TOTALLY WRONG, UNJUSTIFIED AND ILLEGAL. ASSESSEE HAS EARNED INCOME FROM TUITION, RENTAL INCOME AND THE CASH GENERATED THROUGH TUITION INCOME/ RENT HAS BEEN DEPOSITED IN BANK ACCOUNT. TUITION INCOME WAS DULY OFFERED FOR TAXATION. BUT LD ASSESSING OFFICER TAXED THE CASH DEPOSITED IN BANK ACCOUNT AND THE SAME WAS CONFIRMED BY CIT(A) ON THE BASIS THAT CASH DEPOSITED IN BANK ACCOUNT ARE VARYING. THEREFORE, ON THE BASIS T AKEN AND METHOD ADOPTED AND ON THE LEGAL PRINCIPLE THAT THE INCOME CANT BE TAXED TWICE (ONCE WHEN RECEIVED BY THE ASSESSEE AND AGAIN WHEN DEPOSITED IN BANK ACCOUNT), THE ADDITION OF RS. 2,25,000/ - IS TOTALLY WRONG, UNJUSTIFIED AND UNWARRANTED AND THE ADDI TION OF RS. 2,25,000/ - DESERVES TO BE DELETED FULL. 2. BECAUSE THE ADDITION HAS BEEN MADE U/S 69 OF THE ACT WITHOUT TAKING INTO CONSIDERATION THE EXPLANATION OF THE ASSESSEE THAT THE CASH DEPOSIT IS OUT OF TUITION INCOME AND RENTAL INCOME WHICH HAS ALREAD Y BEEN OFFERED FOR TAXATION IN THE IT RETURN AND THE ASSESSEE HAS PAID FULL TAX ON THE SAME. 3. BECAUSE THE LD ASSESSING OFFICER IN THE ASSESSMENT ORDER ITSELF HAS RE - PRODUCED THE EXPLANATION TO BANK ENTRIES WHEREIN CASH DEPOSIT IS EXPLAINED OUT OF THE TU ITION INCOME/ RENTAL INCOME. THE LD ASSESSING OFFICER HAS TAXED THE TUITION INCOME AND ALSO TAXED THE CASH DEPOSIT IN BANK SEPARATELY. HENCE THE ASSESSMENT ORDER IS PERVERSE. THE IMPUGNED ORDER WHICH CONFIRMS THE ADDITION IS ALSO PERVERSE AND IS NOT MAINTA INABLE. 4. BECAUSE ON FACTS & IN LAW THE ADDITION OF RS. 16,549/ - ( BEING DIFFERENCE OF INTEREST ON FDR & SB A/C TAKEN BY THE LD ASSESSING OFFICER AT RS. 19,430/ - AND INTEREST INCOME OFFERED BY ASSESSEE AT RS. 2881/ - ) IS TOTALLY WRONG, UNJUSTIFIED & ILLEG AL. LD ASSESSING OFFICER IGNORED THE FACTS OF THE CASE AND MADE ADDITION OF RS. 16,549/ - WITHOUT ANY BASIS. THEREFORE, THE BASIS TAKEN FOR MAKING ADDITION OF RS. 16,549/ - WITHOUT ANY BASIS. THEREFORE, THE BASIS TAKEN FOR MAKING ADDITION OF RS. 16,549/ - IS TOTALLY WRONG, UNJUSTIFIED AND ILLEGAL AND THE SAME DESERVES TO BE DELETED IN FULL. 34 . GROUND NOS. 1, 2 AND 3 IS IN RESPECT TO ADDITION OF RS. 2,25,000/ - , WHICH THE ASSESSEE HAS REFLECTED AS HER TUITION INCOME AS UNDISCLOSED INCOME U/S 69 OF THE ACT . WE PAGE NO. 13 HAVE ALREADY ADJUDICATED THE ISSUE IN RESPECT TO THE SAID ADDITION MADE IN RESPECT TO THE TUITION INCOME OF THE ASSESSEE. THEREFORE WE DIRECT THE ASSESSING OFFICER TO DELETE THE SAID ADDITION MADE ON ACCOUNT OF HER TUITION INCOME. 35 . IN RESPECT OF G ROUND NO. 4 THAT APROPOS ADDITION OF RS. 16,549/ - AS INTEREST INCOME. IN RESPECT TO ADDITION OF RS. 16,549/ - BEING DIFFERENCE OF INTEREST ON FDR & SB ACCOUNT, T HE APPELLANT HAS NOT BEEN ABLE TO SHOW BEFORE US HOW THE CALCULATION OF THE ASSESSING OFFICER WA S NOT CORRECT. THEREFORE WE UPHO LD THE SAID ADDITION MADE BY THE ASSESSING OFFICER AND THE SAME IS CONFIRMED BY THE LD CIT(A). THIS GROUND OF APPEAL IS RULED AGAINST THE APPELLANT. 36 . IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 0 . 06 .2014. - S D / - - S D / - ( S. V. MEHROTRA ) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 2 0 / 06 / 2014 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI