KAILASH CHANDR DANGAYACH, Jaipur V. ITO, Jaipur

ITA 321/JPR/2011

• Counselvise Citation: 32123114 RSA 2011
• Duration Of Justice: 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 21-10-2011
• Assessment Year: 1994-1995
• Appeal Filed On: 11-04-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D K MEENA
• Assessee Lawyers: S L PODDAR
• Keywords: Gift; Document seized; Opportunity of being heard; Rule of consistency; Documents seized
• Section: 131; 68; 148; 139

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, A JAIPUR (BEFORE SHRI R.K.GUPTA AND SHRI N.L. KALRA) ITA NO.321/JP/2011 ASSESSMENT YEAR : 1994-1995 SHRI KAILASH CHAND DANGAYACH VS. INCOME TAX OFF ICER, BANI PARK, WARD-3(2), JAIPUR. JAIPUR. ITA NO.322/JP/2011 ASSESSMENT YEAR : 1995-1996 SHRI KAILASH CHAND DANGAYACH VS. INCOME TAX OFF ICER, BANI PARK, WARD-3(2), JAIPUR. JAIPUR. ITA NO.510/JP/2011 ASSESSMENT YEAR : 1994-1995 INCOME TAX OFFICER, VS. SHRI KAILASH CHAND WARD-3(2), DANGAYACH, BANI PARK JAIPUR. JAIPUR. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S.L. PODDAR DEPARTMENT BY : SHRI D.K. MEENA DATE OF HEARING: 21.10.2011 DATE OF PRONOUNCEMENT: 31.10.2011 ORDER 2 PER SHRI N.L. KALRA, A.M. THE ASSESSEE HAS FILED APPEALS AGAINST THE RESPECT IVE ORDERS OF LD. CIT (A) FOR THE ASSESSMENT YEAR 94-95 AND 95-96 WHILE THE REVENUE H AS FILED AN APPEAL FOR THE ASSESSMENT YEAR 1994-95. 2. FIRST WE TAKE UP THE APPEAL OF THE REVENUE FOR T HE ASSESSMENT YEAR 94-95. THE REVENUE IS AGGRIEVED AGAINST RELIEF OF RS.6,19,174/ - AND RS.52,600/-. THE APPEAL HAS BEEN FILED ON 25.05.2011 AND HENCE MONETARY LIMITS PRESC RIBED BY BOARD VIDE INSTRUCTIONS DATED FEB 9, 2011 ARE APPLICABLE. AS PER THE FINANC E BILL OF 1994, MAXIMUM RATE OF TAX WAS 40%. HENCE THE TAX ON MAXIMUM RATE WILL BE LESS THAN RS.3 LAKH. HENCE APPEAL OF THE REVENUE IS NOT MAINTAINABLE. 3. NOW WE WILL TAKE UP APPEAL OF THE ASSESSEE FOR T HE ASSESSMENT YEAR 94-95. THE FIRST GROUND OF APPEAL IS THAT LD. CIT (A) HAS ERRE D IN CONFIRMING THE ADDITION OF RS.5,27,449/- ON ACCOUNT OF LIABILITIES IN THE BALA NCE SHEET OF ASSESSEES SON SHRI AKSHAY KUMAR DANGAYACH. 4. THE ADDITION OF RS.5,27,449/- WAS MADE BY THE A. O. VIDE ORDER DATED 30.3.2001 AND SUCH ADDITION WAS CONFIRMED BY LD. CIT (A) VIDE ORDER DATED 12.12.2005. THIS ADDITION WAS SET ASIDE BY TRIBUNAL VIDE ORDER DATED 28.09.2007 IN ITA NO.126/JP/2006. THE A.O. WHILE PASSING ASSESSMENT ORDER AFTER THE I SSUE WAS SET ASIDE HAS BRIEFLY MENTIONED AS UNDER AS TO WHY SUCH ADDITION WAS MADE BY A.O. VIDE ASSESSMENT ORDER DATED 30.3.2001. IT WAS OBSERVED BY THE A.O. THAT SH. AKSHYA DANGAYA CH FILED HIS RETURN OF INCOME FOR THE A.Y. 1993-94, 1994-95 & 1995-96 ON 1 0.2.2000, A DATE 3 AFTER THE ISSUANCE OF NOTICE U/S 148 IN THE CASE OF THE ASSESSEE. THE A.O. HELD THAT AS NO PROOF OF INCOME WAS FILED BY SH. AK SHAY DANGAYACH, THE AMOUNTS SHOWN IN HIS BALANCE SHEET REPRESENTS THE A FFAIRS RELATED TO THE ASSESSEE AND ADDED THE TOTAL OF LIABILITY SIDE OF R S.5,27,449/37 AS UNDISCLOSED INCOME OF THE ASSESSEE FORM OTHER SOURC ES. WHILE MAKING SUCH ADDITION THE A.O. MADE ELABORATE DISCUSSION ON THE STATEMENT OF THE ASSESSEE GIVEN U/S 132(4) THAT HIS CHILDREN HAVE NO SOURCE OF INCOME. 5. BEFORE THE A.O., THE ASSESSEE FILED SUBMISSIONS VIDE LETTER DATED 26.11.2008 AND THESE ARE SUMMARISED AS UNDER: (A) THE HONBLE ITAT IN RESPECT OF ADDITION OF RS.5 ,27,499/- VIDE ORDER DATED 28.09.2007 IN ITA NO.126/JP/2006 ON PAGE 8 PARA 14 OBSERVED: IN VIEW OF ABOVE ORDERS OF THE TRIBUNAL IN ITA NO.2 36/JP/1999, 285/JP/2005 AND 596/JP/2003 WE WHILE SETTING ASIDE THE ORDERS OF THE LOWER AUTHORITIES ON THE ISSUE REMAND THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO EXAMINE THE CORRECTNESS OF CLA IM OF THE ASSESSEE THAT HE NEVER INDULGED IN THE BUSINESS OF SHARE DEALINGS NOR MADE ANY INVESTMENT IN HIS NAME OR IN THE NAME OF OTHER FAMI LY MEMBERS AND THAT SH. AKSHAY DANGAYACH AND SMT. RACHANA DANGAYACH (KH ANDELWAL) ARE HAVING THEIR INDEPENDENT SOURCE OF INCOME AND THE A DDITION OF RS.5,27,499/-, IF ANY, SHOULD HAVE BEEN MADE IN THE HANDS OF SH. AKSHAY DANGAYACH AND NOT IN THE HANDS OF ASSESSEE, AND MAK E FRESH ASSESSMENT ON THE ISSUE ACCORDINGLY AFTER AFFORDING ADEQUATE O PPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE GROUND NO.2 IS THUS ALLO WED FOR STATISTICAL PURPOSES. ITA NO.236/JP/1999 IS THE APPEAL OF THE ASSESSEE IN RESPECT OF ASSESSMENT YEAR 1995-96. ITA NO.285/JP/2005 IS AN APPEAL BY RE VENUE IN THE CASE OF SH. AKSHAY DANGAYACH FOR ASSESSMENT YEAR 95-96. ITA NO.596/JP/2003 IS APPEAL BY REVENUE IN THE CASE OF SMT. RACHNA DAN GYACH FOR ASSESSMENT YEAR 94-95. (B) IN THE CASE OF SH. AKSHAY KUMAR DANGAYACH, AN A DDITION OF RS.9,28,279/- WAS MADE ON PROTECTIVE BASIS FOR THE ASSESSMENT YEA R 1994-95 AND SUCH 4 ADDITION WAS MADE ON ACCOUNT OF DEPOSITS IN BANK AN D INVESTMENT IN SHARES. SUCH ADDITION WAS DELETED BY LD. CIT (A). (C) A SIMILLER ISSUE CROPPED UP DURING THE ASSTT. Y EAR 1995-96 AND THE TRIBUNAL WHILE DISPOSING OF APPEAL VIDE ORDER DATED 22.09.2006 IN ITA NO.285/JP/2005 OBSERVED AS UNDER: CONSIDERING THE ABOVE ARGUMENTS IN VIEW OF MATERIAL ON RECORD, WE ARE OF THE VIEW THAT BEFORE COMING TO THE CONCLUSION THAT THE MONEY INVESTED IN SHARES IN THE NAME OF ASSESSEE MIGHT HAVE BEEN BELO NGED TO HIS FATHER TO JUSTIFY THE ADDITION ON PROTECTIVE BASIS IN THE HAN DS OF THE ASSESSEE ON THE BASIS OF MERE ASSUMPTION, THE AO SHOULD HAVE EXAMIN ED THE DOCUMENTS FILED ON BEHALF OF THE ASSESSEE IN SUPPORT OF HIS E XPLANATION, AS DISCUSSED HEREIN ABOVE, BECAUSE IT IS A WELL ESTABLISHED POSI TION OF THE LAW THAT THE DOCUMENTS HAVE PREVAILING EVIDENTIARY VALUE OVER ME RE PRESUMPTION. WE THUS IN THE INTEREST OF THE JUSTICE A REMAND THE MA TTER TO THE FILE OF THE AO TO MAKE FRESH ASSESSMENT AFTER EXAMINING THE CORREC TNESS OF AFORESAID DOCUMENTS ALREADY ON RECORD AND AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ORDERS OF THE LOWER AUTH ORITIES ARE THUS SET ASIDE. THE GROUND AS WELL AS THE APPEAL IS THUS PAR TLY ALLOWED. 6. PURSUANT TO THE AFORESAID ORDER OF TRIBUNAL, THE A.O. HAVING JURISDICTION OVER SH. AKSHAY DANGAYAH PASSED ON ASSESSMENT ORDER DATED 27 .12.2007 IN WHICH THE A.O. HELD THAT INVESTMENT IN BANK AND IN SHARES BELONG TO SH. AKSHAY DANGAYAH. 7. BEFORE COMING TO THE CONCLUSION, THE A.O. HAS RE FERRED TO THE FOLLOWING FACTS: A SEARCH & SEIZURE OPERATION WAS CARRIED OUT AT THE BUSINESS PREMISES OF THE ASSESSEE ON 30.12.1994 AND ONWARDS. STATEMENT OF THE ASSESSEE ON THE DATE OF SEARCH WER E ALSO RECORDED U/S 132(4) WHEREIN HE CATEGORICALLY STATED THAT HIS ELD ER SON SH. AKSHYA DANGAYACH WAS STUDYING IN COMMERCE COLLEGE AND MINO R SON SH. AMIT DANGAYACH WAS STUDYING IN TAGORE SCHOOL. FURTHER TH AT HIS DAUGHTER IS MARRIED. THE ASSESSEE CATEGORICALLY STATED THAT HIS CHILDREN DID NOT HAVE ANY SOURCE OF INCOME. THOUGH HE ADMITTED THAT HIS SON SH. AKSH YA WAS HAVING SOME SHARES, BUT ON BEING ASKED ABOUT THE SOURCE OF THE SAME, HE COULD NOT 5 EXPLAIN THE SAME. THE ASSESSEE DID NOT MENTION ANYT HING ABOUT THE INVESTMENT IN SHARES BY HIS MARRIED DAUGHTER AND SO N SH. AMIT. NOTICE U/S 148 WAS ISSUED TO THE ASSESSEE ON 18.3.1 999. IN RESPONSE THERETO ASSESSEE FILED A RETURN OF INCOME ON 17.1.2 001, WHICH WAS TREATED AS INVALID RETURN BY THE THEN A.O. COPIES OF SEIZED DOCUMENTS WERE RECEIVED BY THE A SSESSEE ON 08.02.2001. RETURN OF INCOME FOR THE A.Y. 1993-94, 1994-95$ 199 5-96 WERE FILED BY SH. AKSHYA DANGAYACH ON 10.02.2000, A DATE AFTER IS SUING THE NOTICE U/S 148 TO THE ASSESSEE BY THE DEPARTMENT. NO REASON WAS ADDUCED EITHER BY THE ASSESSEE OR BY HIS SON SH. AKSHYA FOR FILING AFORESAID RETURNS OF INCOME SO LATE I.E. AFT ER A GAP OF 4-6 YEARS OR SO. SON OF THE ASSESSEE FILED A CONFIRMATION LETTER ON 03.03.2001 CLAIMING THEREIN TO HAVE FILED IT RETURNS SINCE 1993-94. HE ALSO FILED AN AFFIDAVIT REGARDING 8 BANK ACCOUNTS CLAIMING THEREIN THAT HIS FATHER (THE ASSESSEE) HAS NO CONNECTION OR CONCERN OVER THESE ACCOUNTS AN D THAT ACCOUNTS OF HIS YOUNGER BROTHER WERE ALSO BEING OPERATED BY HIM. HE FURTHER STATED TO HAVE INDULGED IN SHARES BUSINESS IN HIS NAME AS WEL L AS IN THE NAME OF SH. AMIT AND SH. RAKESH. REGARDING INVESTMENT ENTRIES A PPEARING AT PAGE NO.74 & 74 OF AK-9 AND PAGE-33 OF AK-10 IT WAS STAT ED BY HIM THAT THE SAME ARE REFLECTED IN HIS RETURN OF INCOME. STATEMENT OF SH. AKSHYA AND SH. AMIT WERE RECORDED BY THE THEN AO U/S 131 OF THE IT ACT, 1961 ON 08.03.2001, IN WHICH THE Y ADMITTED THE FACTS REGARDING THEIR ALLEGED INVESTMENTS AS MENTIONED IN FOREGOING PARA. HOWEVER REGARDING SOURCE OF SUCH INVESTMENT BOTH OF THEM REMAINED SILENT. IT WAS ALSO OBSERVED BY THE THEN AO THAT CARE WAS T AKEN AT THE TIME OF FILING OF RETURNS OF SON OF THE ASSESSEE THAT SHARE S AND INVESTMENT FOUND DURING THE COURSE OF SEARCH ARE INCLUDED THEREIN. THE THEN CIT (A) IN HIS ORDER NO.229/98-99 IN THE C ASE OF THE ASSESSEE FURTHER OBSERVED THE FACT THAT THE SON OF THE ASSES SEE SH. AKSHYA DID NOT INDICATE THE SOURCE OF HIS INCOME. IT WAS FURTHER OBSERVED BY THE THEN AO THAT SH. AKS HYA IN HIS COMPUTATION OF INCOME HAD SHOWN INTEREST INCOME OF RS.747.50 FO R F.Y. 1993-94 AND RS.689.70 FOR F.Y. 1994-95. HOWEVER NO SUCH INTERES T WAS FOUND CREDITED IN THE BOOKS OF THE RELATED CONCERN I.E. M/S. B.D. INDUSTRIES, WHOSE BOOKS WERE ALSO SEIZED DURING THE SEARCH IN THE CASE OF T HE ASSESSEE GROUP, THOUGH SH. AKSHYA CLAIMED TO HAVE EARNED INTEREST F ROM THIS FIRM. IT WAS ALSO OBSERVED BY THE THEN AO THAT THE SON OF THE ASSESSEE COULD NOT FURNISH THE DETAILS OF THE OPENING CAPITAL BALANCE AND SUNDRY CREDITORS AS APPEARING ON 01.04.1993. IT WAS ALSO OBSERVED THE THEN AO THAT THIS WHOLE EX ERCISE WAS TAKEN BY SHRI AKSHAY TO EXPLAIN VARIOUS INVESTMENTS OF HIS F ATHER (THE ASSESSEE) BY SHOWING THE SAME IN HIS BALANCE SHEET. HE ADMITTED MAKING INVESTMENTS IN THE NAME OF HIS BROTHER AND RELATIVES TO EXPLAIN VA RIOUS INVESTMENTS. SINCE THE INCOME OF SHRI AKSHAY WAS BELOW TAXABLE LIMIT, THERE WAS NO LEGAL REQUIREMENT OR OBLIGATION ON HIS PART TO FILE IT RE TURNS THAT TOO AFTER LAPSE 6 OF FIVE AND HALF YEARS FROM THE DUE DATE. IT WAS DO NE WITH THE VIEW TO EXPLAIN VARIOUS UNDISCLOSED INVESTMENTS OF THE ASSE SSEE IN THE NAME OF HIS CHILDREN. IT WAS THE ASSESSEE WHO WAS THE REAL SOUR CE OF CAPITAL AND OTHER LIABILITIES AS SHOWN IN THEIR BALANCE SHEET. SIMILAR EXERCISE I.E. CONFIRMATION LETTER FOLLOWED BY AN AFFIDAVIT REGARDING FOUR BANK ACCOUNTS CLAIMING THEREIN THAT HER FATHER (THE ASSESSEE) HAD NO CONCERN OR CONNECTION OVER THESE ACCOUNTS, WAS TAKE N BY THE DAUGHTER OF THE ASSESSEE RACHNA KHANDELWAL. STATEMENT OF SMT. RACHNA U/S 131 OF THE IT ACT WAS ALSO RECORDED ON 15.03.2001 IN WHICH SHE RE-ITERATED THE CONTENT OF THE LETTER AND AFFIDAVIT. THOUGH SHE ALSO FAILED TO EXPLAIN THE SOURCE OF HER ALLEGED INVESTMENTS. THE CIT(A) VIDE HIS ORDER PASSED IN APPEAL NO.229/9 8-99 IN THE CASE OF ASSESSEE HAD ALSO OBSERVED THAT SMT. RACHNA KHANDEL WAL WAS MARRIED DAUGHTER OF THE ASSESSEE, BUT IT WAS TO BE ESTABLIS HED BY THE ASSESSEE THE SOURCE OF INVESTMENT DID BELONG TO SMT. RACHNA AND NOT TO ASSESSEE. NO SUCH ATTEMPT WAS FOUND MADE BY ASSESSEE TO EXPLAIN THE SOURCE OF SUCH INVESTMENT BEFORE HE CIT (A). 8. THE A.O. AFTER CONSIDERING THE SUBMISSIONS OF SH . AKSHAY DANGYACH AND TAKING INTO ACCOUNTS THE FACTS ON RECORD HELD AS UNDER: REGARDING ASSESSEES SUBMISSION THAT IN THE CASE OF SH. AKSHAY DANGAYACH FOR A.Y. 1994-95, ADDITION WAS MADE ON PR OTECTIVE BASIS AND THE SAME WAS DELETED BY THE LD. CIT (A). IT CAN BE SAID THAT THE SAID ADDITION WAS DELETED BY THE CIT (A) ON THE PLEA THA T THE ADDITION IN THE CASE OF THE ASSESSEE WAS MADE SUBSTANTIVELY AND THE SAME WAS CONFIRMED BY THE THEN CIT(A)-III. AS SUCH IN THE PRESENT SCEN ARIO, WHERE THE ASSESSEES CASE STANDS SET ASIDE, THEN THE ABOVE SU BMISSION OF THE ASSESSEE HAS NO RELEVANCE IN AS MUCH AS IT RELATES TO ADDITI ON OF RS.4,830/- ON ACCOUNT OF DEPOSITS IN THE BANK ACCOUNTS OF THE SON S OF THE ASSESSEE AND ADDITION OF RS.29,660/- REGARDING SHARE INVESTMENT IN THEIR NAME. THE ASSESSEES PLEA THAT THE THEN AO WARD-3(2), JAIPUR HAS ACCEPTED THE SAME SUBSTANTIVELY IN THE HANDS OF THE SON SH. AKSHAYA I N ASSESSMENT PROCEEDINGS FOR THE ASSESSMENT YEAR 1995-96, IS OF NO RELEVANCE AS THE ASSESSEE WAS REQUIRED TO EXPLAIN AND JUSTIFY THE IN DEPENDENT SOURCE OF INCOME OF HIS SON, WHICH HE HAS NOT DONE. BESIDES, EVERY ASSESSMENT YEAR IS DIFFERENT FROM OTHER ASSESSMENT YEAR. THE SAME P RINCIPAL HAS BEEN FOLLOWED BY VARIOUS SUPERIOR AUTHORITIES IN NUMEROU S CASES. 9. THE LD. CIT (A) AFTER CONSIDERING THE CONTENTION S OF THE ASSESSEES A/R HELD AS UNDER: 7 CONTENTION OF THE AR IS CONSIDERED. THE AR HAS HEAV ILY RELIED UPON THE OBSERVATION OF AO IN THE CASE OF SHRI AKSHAY DANGAY ACH, SON OF THE APPELLANT. THE AO IN THE CASE OF SHRI AKSHAY DANGAY ACH HAS ACCEPTED THE INCOME DECLARED BY SHRI AKSHAY DANGAYACH BECAUSE TH E BANK ACCOUNTS WERE IN THE NAME OF SHRI AKSHAY DANGAYACH AND THE S HARES WERE PURCHASED THROUGH THESE BANK ACCOUNTS. HERE, IT WIL L BE RELEVANT TO MENTION THAT THE RETURNS IN THE CASE OF SHRI AKSHAY DANGAYACH, SON AND KU. RACHNA KHANDELWAL, DAUGHTER WERE FILED AFTER 6 YEARS FROM THE DUE DATE OF SUCH RETURNS. THE ASSESSMENT IN THE CASE OF APPELLANT WAS FIRST COMPLETED ON 30.3.03 I.E. AFTER TWO YEARS OF THE FI NDING OF AO IN THE CASE OF APPELLANT. RETURN WAS NOT FILED VOLUNTARILY U/S 139 IN THE CASE OF SHRI AKSHAY DANGAYACH AND, THEREFORE, THE RETURN FILED A FTER A GAP OF 6 YEARS WAS HELD INVALID AND NOT EST IN THE EYES OF LAW. AS THE AO HELD THAT INCOME WAS ESCAPED ASSESSMENT, THE ASSESSMENTS FOR AY 94-9 5 AND 95-96 WERE REOPENED BY ISSUING NOTICES U/S 148. ON THE OTHER H AND, SEARCH IN THE CASE OF APPELLANT WAS CARRIED OUT ON 30.12.94 AND ONWARD S AND SH. KAILASHCHAND DANGAYACH IN HIS STATEMENTS RECORDED U /S 132(4) HAS CLEARLY STATED THAT HIS SON SHRI AKSHAY DANGAYACH W AS STUDYING IN COMMERCE COLLEGE AND HIS CHILDREN HAVE NO SOURCE OF INCOME. IT WAS MENTIONED THAT MERE SHARES WERE FOUND IN THE NAME O F SHRI AKSHAY DANGAYACH BUT STILL SH. KAILASHCHAND DANGAYACH DID NOT EXPLAIN THE SOURCE OF SAME. SIMILARLY, NOTHING WAS STATED OR EX PLAINED ABOUT INVESTMENT IN SHARES IN THE NAME OF HIS DAUGHTER AN D ANOTHER MINOR SON SHRI AMIT KUMAR. AS LATE AS ON 3.3.01, SHRI AKSHAY DANGAYACH MADE CLAIM THAT HE HAD FILED INCOME TAX RETURNS SINCE AY 93-94 AND BY AN AFFIDAVIT CLAIMED THAT HIS FATHER SH. KAILASHCHAND DANGAYACH HAS NOT CONNECTION OR CONCERN OVER THE BANK ACCOUNT IN HIS NAME. THE FINDING OF AO IN THE CASE OF SH. KAILASHCHAND DANGAYACH HAS NO RELEVANCE SO FAR AS ADDITION WAS MADE IN THE HANDS OF THE APPELLANT ON ACCOUNT OF LIABILITIES OR ANYTHING ELSE IN THE NAME OF HIS SON OR DAUGHTER . IN THE STATEMENTS RECORDED U/S 132(4) IN 1994 THE APPELLANT HAS ACCEP TED THAT HIS SON AND DAUGHTER HAD NO SOURCE OF INCOME. FURTHER THE CLAIM MADE BY SH. AKSHAY AS LATE AS IN 2003 THAT TOO WITHOUT ANY BASIS OR SU PPORTING EVIDENCES SHOULD NOT BE GIVEN ANY COGNIZANCE. THE AR ALSO REL IED UPON THE OBSERVATION OF HONBLE ITAT WHEREIN A GENERAL OBSER VATION WAS MADE THAT THE DOCUMENTS HAVE PREVAILING EVIDENTIARY VALU E OVER MERE PRESUMPTIONS. NO ONE CAN DISAGREE WITH THIS OBSERVA TION. HERE, WHILE MAKING ADDITION THE AO HAS NOT BASED HIS ADDITION O N PRESUMPTIONS BUT THE STATEMENT RECORDED U/S 132(4) OF SH. KAILASHCHA ND DANGAYACH AT THE TIME OF SEARCH PROCEEDINGS. SO CALLED DOCUMENTS FUR NISHED BY THE APPELLANT IS NOTHING BUT THE BANK ACCOUNT IN THE NA ME OF SON AND DAUGHTER OF THE APPELLANT. THE BANK ACCOUNT MAY BE IN THE NA ME OF HIS SON BUT IF THE SOURCE OF DEPOSITS IN THE BANK ACCOUNTS IS ALSO PRO VED LINKING TO THE SON THEN ONLY SON CAN BE HELD RESPONSIBLE FOR THE DEPOS ITS IN HIS BANK ACCOUNT. IN THE PRESENT CASE CIRCUMSTANTIAL EVIDENCES LIKE S ON BEING A COLLEGE STUDENT, NOT FILING HIS RETURN OF INCOME U/S 139(1) , ABSENCE OF ANY APPARENT 8 SOURCE OF INCOME OF SH. AKSHAY FOUND DURING SEARCH AND NO SATISFACTORY EXPLANATION REGARDING OPENING CAPITAL AS WELL AS IN VESTMENT OF SH. AKSHAY DANGYACH AND KU. RACHNA KHANDELWAL COUPLED WITH STA TEMENT OF SH. KAILASHCHAND DANGAYACH AT THE TIME OF SEARCH ADMITT ING THAT THERE WAS NO SOURCE OF INCOME OF SON AND DAUGHTER, CLEARLY ES TABLISHED THAT THE BANK ACCOUNTS BELONGED TO THE APPELLANT ONLY THOUGH IT M AY BE IN THE NAME OF HIS CHILDREN. IT IS NOT THE NAME BUT SOURCE OF INVE STMENT THAT WILL DECIDE THE OWNERSHIP OF ANY ASSET. THE AO HAS, THEREFORE, RIGHTLY CONSIDERED THE LIABILITIES SHOWN IN THE BALANCE SHEET OF SH. AKSHA Y AS UNDISCLOSED INCOME OF THE APPELLANT. THE ADDITION OF RS.5,27,449/- IS, THEREFORE, CONFIRMED. 10. BEFORE US THE LD.A/R HAS REFERRED TO THE FINDIN G OF TRIBUNAL GIVEN IN THE CASE OF SH. AKSHAY DANGAYACH IN WHICH TRIBUNAL HAS HELD THA T DOCUMENTS SHOULD PREVAIL OVER THE PRESUMPTION. ON THE BASIS OF SUCH OBSERVATION, THE A.O. HAS ACCEPTED THAT INVESTMENTS BELONG TO SON OF THE ASSESSEE SUCH ISSU ES HAVE BEEN CONSIDERED IN THE CASE OF SON OF THE ASSESSEE FOR A.Y. 95-96. SUCH FINDING IS STILL NOT SET ASIDE BY ANY AUTHORITY. 11. THE LD. A/R FURTHER SUBMITTED THAT THE A.O. HAS REPEATED THE ADDITION ON THE FOLLOWING TWO GROUNDS: THE INDEPENDENT SOURCE OF INCOME OF SHRI AKSHAY DAN GAYACH HAS NOT BEEN PROVED. DISREGARDING THE FINDINGS OF THE ASSESSING OFFICER IN ASSESSMENT YEAR 1995-96 IT HAS BEEN HELD EVERY ASSESSMENT YEAR IS D IFFERENT. WITH RESPECT TO THE ABOVE TWO GROUNDS IT WAS SUBMIT TED THAT IN ASSESSMENT YEAR 1995-96 IT WAS ONLY ON THE BASIS OF EVIDENCES OF BANK ACCOUNTS STANDING IN THE NAME OF AKSHAY DANGAYACH THAT THE A SSESSING OFFICER ACCEPTED THE SHARE TRANSACTIONS AND INTEREST INCOME AS BELONGING TO SHRI AKSHAY DANGAYACH. THEREFORE IT DOES NOT BEHOVE THE LEARNED ASSESSING OFFICER TO SAY THAT NO DOCUMENTARY EVIDENCE WAS FUR NISHED. THE BANK ACCOUNTS IN THEMSELVES ARE GOOD DOCUMENTS WHICH SPE AK VOLUMES. FURTHER THE LEARNED ASSESSING OFFICER WAS ALSO WRONG IN HOL DING IN THE CIRCUMSTANCES OF THE CASE THAT EACH ASSESSMENT YEAR IS DIFFERENT. IN THE CIRCUMSTANCES OF THE CASE THE RULE OF CONSISTENCY S HALL PREVAIL. IT IS ESTABLISHED POSITION OF LAW THAT ON THE SAME ISSUE THE REVENUE CANNOT CHANGE ITS DECISION FROM YEAR TO YEAR IN THE CASE O F THE ASSESSEE. ONCE INTEREST INCOME AND SHARE TRANSACTIONS HAVE BEEN HE LD TO BELONG TO SHRI AKSHAY DANGAYACH VIDE ORDER DATED 27.12.2007 IN ASS ESSMENT YEAR 1995- 96 THEN SUBSEQUENTLY IN THE ORDER PASSED LATER ON 3 1.12.2008 FOR 9 ASSESSMENT YEAR 1994-95 IT WAS NOT WITH IN THE PURV IEW OF THE LEARNED ASSESSING OFFICER TO GIVE A DIFFERENT DECISION REGA RDING THE INTEREST INCOME AND THE SHARE TRANSACTION OF SHRI AKSHAY DANGAYACH. APPARENTLY THE DECISION OF THE LEARNED ASSESSING OFFICER WAS NOT I N ORDER. THE LEARNED CIT(A) ERRED IN CONFIRMING THE SAME. THE LEARNED CI T(A) HAS CONFIRMED THE ADDITION ON THE FOLLOWING GROUNDS THE LEARNED CIT(A) HAS REFERRED TO THE STATEMENT OF THE ASSESSEE U/S 132(4). THE RETURNS OF INCOME BY SHRI AKSHAY DANGAYASH AND SMT. RACHNA DANGAYACH WERE FILED LATE. THE DECISION OF THE LEARNED CIT(A) IN CONFIRMING TH E ADDITION IS UNLAWFUL AND UNJUST AND IS FURTHER ASSAILED AS UNDER RULE OF CONSISTENCY HAVE BEEN VIOLATED IT IS SUBMITTED THAT BOTH THE LEARNED ASSESSING OFF ICER AS WELL AS THE LEARNED CIT(A) HAVE ERRED IN NOT FOLLOWING THE RULE OF CONSISTENCY. THE FACTS AND THE ISSUES IN ASSESSMENT YEAR 1995-96 AND 1994-95 ARE ADMITTEDLY IDENTICAL. THE LEARNED ASSESSING OFFICER HAS NOT MENTIONED ANY REASON FOR DEVIATING FROM THE DECISIONS ARRIVED AT BY THE REVENUE IN ASSESSMENT YEAR 1995-96 WHICH WAS COMPLETED EARLIER TO ASSESSMENT YEAR 1994-95 AND THAT TOO UNDER THE DIRECTIONS OF T HE HONBLE ITAT. NO REASON HAS BEEN GIVEN BY THE LEARNED CIT(A) FOR CON FIRMING THE ADDITION IN VIOLATION OF THE RULE OF CONSISTENCY. THE FOLLOW ING CASE LAWS ARE QUOTED IN SUPPORT A TAX AUTHORITY WOULD NOT BE ENTITLED TO UNSETTLE T HE EARLIER FINDING WHERE THE FINDING WAS NOT ARBITRARY, WAS ARRIVED AT AFTER MAKING DUE ENQUIRIES AND TAKING INTO CONSIDERATION ALL MATERIAL EVIDENCE . THIS WAS DECIDED IN SHAH & CO. VS. CIT 30 ITR 618 (MUM) AND WAS FOLLOWE D IN SARDAR KEHAR SINGH VS. CIT (1992) 195 ITR 769 (RAJ) AND CIT VS. KUSUM BADER (1990) 185 ITR 70 (RAJ). IN VIEW OF THE DECISION OF THE TE RRITORIAL HIGH COURT OF RAJASTHAN THE LEARNED CIT(A) WAS REQUIRED TO FOLLOW THE RULE OF CONSISTENCY AND THE ADDITION SHOULD HAVE BEEN DELET ED. THE DECISION REACHED IN ONE YEAR IS A COGENT FACTOR IN DETERMINING SIMILAR ISSUE IN ANOTHER YEAR. THIS WAS DECIDED IN THE FOLL OWING CASES (A) DURGA PRASAD MORE VS. CIT 82 ITR 540 (SUPREME COURT ), (B) CIT VS. RAMESHWAR DAYAL 240 ITR 204 (C) ASSISTANT COMMISSIONER OF INCOME TAX VS. GANDA LAL HAJARI LAL & CO. (2003) 263 ITR 679 (MP) 10 IN VIEW OF THE AFORESAID DECISION THE HONBLE ITAT IS REQUESTED TO DELETE THE ADDITION. ADDITION CANNOT BE MADE EXCLUSIVELY ON THE BASIS OF STATEMENT BOTH THE LEARNED ASSESSING OFFICER AND THE LEARNED CIT(A) HAVE HEAVILY RELIED ON THE STATEMENT OF THE ASSESSEE MADE U/S 13 2(4). IT IS SUBMITTED THAT IT IS SETTLED PRINCIPLE OF LAW THAT NO ADDITION CAN BE MADE SIMPLY ON THE BASIS OF STATEMENT UNLESS THE SAME IS CORROBORATED WITH OTHER MATERIAL FOUND DURING SEARCH OR BY MAKING POST-SEARCH ENQUIR IES. IN THIS CASE THIS HAS NOT BEEN DONE AND THE ADDITION HAVE BEEN MADE S IMPLY AND SIMPLY ON THE BASIS OF STATEMENT OF THE ASSESSEE. THE FOLLOWI NG CASE LAWS ARE QUOTED IN SUPPORT CIT VS. SHRI RAM DAS MOTOR TRANSPORT (2000) 238 ITR 177 (AP) IN THE ABSENCE OF ANY SUPPORTING DOCUMENTS ETC STAT EMENT RECORDED U/S 132(4) HAS NO EVIDENTIARY VALUE. CONTECH TRANSPORT SERVICES PVT. LTD. AND OTHERS VS. ACIT (2009) 19 DTR 191 (MUM) NO ADDITION CAN BE MADE ONLY ON THE BASIS OF ADMISS ION IN STATEMENT U/S 132(4). DCIT VS. PRATAP SINGH RAJENDRA CHOMOLA & CO. (200) 19 DTR 182 (CHANDIGARH) NO ADDITION CAN BE MADE SOLELY ON THE BASIS OF STAT EMENT RECORDED DURING SEARCH SUCH STATEMENTS CANNOT BE TREATED AS INCRI MINATING MATERIAL FOUND IN THE COURSE OF SEARCH. CHITRA DEVI VS. ACIT (2002) 77 TTJ 640 (JD) STATEMENT RECORDED DURING SEARCH ARE NOT EVIDENCE F OUND DURING SEARCH. ADDITION CANNOT BE MADE ON THE BASIS OF STATEMENT A LONE. ADDITION COULD NOT BE MADE IN THE HANDS OF THE ASSE SSEE WITHOUT HOLDING SHRI AKSHAY DANGAYACH AND SMT. RACHANA KHANDELWAL A S BENAMIDARS OF THE ASSESSEE IT IS SUBMITTED THAT THE ADDITIONS HAVE BEEN MADE I N RESPECT OF INVESTMENTS OF SHRI AKSHAY DANGAYACH AND SMT. RACHANA KHANDELWA L WITHOUT GIVING A FINDING AND HOLDING THAT SHRI AKSHAY DANGAYACH AN D SMT. RACHANA KHANDELWAL WERE BENAMIDARS OF THE ASSESSEE. IN VIEW OF THIS THE ADDITION MADE IS PATENTLY WRONG. THE ASSET/INCOME/INVESTMENT S STANDING IN THE NAME OF SHRI AKSHAY DANGAYACH AND SMT. RACHANA KHAN DELWAL 11 APPARENTLY BELONGED TO THEM UNLESS PROVED OTHERWISE OR THEY ARE HELD AS BENAMIDARS OF THE ASSESSEE. IN VIEW OF THIS IT IS R EQUESTED INJUSTICE CAUSE TO THE ASSESSEE DESERVES TO BE REMOVED. THE ADDITIO N MADE BY THE LEARNED ASSESSING OFFICER AND CONFIRMED BY THE LEARNED CIT( A) IS REQUESTED TO BE DELETED. ADDITION CANNOT BE MADE UNDER PRESUMPTION IT IS FURTHER SUBMITTED THAT THE ADDITIONS HAVE BEE N MADE WITHOUT BRINGING ANY MATERIAL ON RECORD AND PURELY ON PRESUMPTION. T HE LEARNED CIT(A) HAS TAKEN ADVERSE NOTE ON THE FACTS THAT RETURNS IN THE CASE OF SMT. AKSHAY DANGAYACH AND SMT. RACHANA KHANDELWAL WERE FILED LA TE. IN THIS REGARD IT IS SUBMITTED THAT IN CASES WHERE RETURNS ARE FIL ED LATE THERE ARE SEPARATE PENAL PROVISIONS. BUT SIMPLY ON THE GROUND THAT RET URN IS FILED LATE ADVERSE INFERENCE CANNOT BE DRAWN WITHOUT BRINING ANY MATER IAL ON RECORD AND THE SAME CANNOT BE REJECTED. FURTHER EVEN ON SUCH BELAT ED RETURNS THE DEPARTMENT HAS COMPLETED REGULAR ASSESSMENTS AFTER REGULARIZING THE SAME. THIS SHOWS THAT THE RETURNS WERE TREATED AS G OOD RETURNS AND INDEPENDENT ENTITY OF SHRI AKSHAY DANGAYACH AND SMT . RACHANA KHANDELWAL WAS RECOGNIZED. THIS BEING THE FACTUAL POSITION THERE WAS NO CASE FOR MAKING THE ADDITION. THE SAME DESERVES TO BE DELETED. 12. ON THE OTHER HAND THE LD. D/R RELIED ON THE ORD ERS OF THE AUTHORITIES BELOW: 13. WE HAVE HEARD BOTH THE PARTIES. THE COPY OF ASS ESSMENT ORDER OF SH. AKSHAY DANGAYACH IS AVAILABLE AT PAGES 54 TO 59 OF THE PAP ER BOOK. FOR THE ASSTT. YEAR 95-96, THE INVESTMENT SHOWN BY SH. AKSHAY WAS CONSIDERED I N THE HANDS OF ASSESSEE ON PROTECTIVE BASIS TO THE EXTENT OF RS.7,30,507/-. TH IS WAS ALSO ADDED IN PROTECTIVE BASIS IN THE CASE OF AKSHAY. THE TRIBUNAL SET ASIDE THE ADDI TION IN THE CASE OF ASSESSEE AS WELL AS IN THE CASE OF SON OF THE ASSESSEE. THE A.O. HAVING JURISDICTION IN THE CASE OF SH. AKSHAY, IN HIS ORDER IN THE CASE OF AKSHAY HELD AS UNDER: I HAVE EXAMINED THE DOCUMENTS FILED DURING ASSESSM ENT PROCEEDINGS AND BEFORE LD. ITAT THE SHARE INCOME AND INTEREST INCOME IS TR EATED AS INCOME OF THE ASSESSEE 12 BECAUSE THE BANK ACCOUNTS ARE IN THE NAME OF THE AS SESSEE. SHARES HAVE PURCHASED THROUGH THESE BANK ACCOUNTS. THE FIRM HAVE ALLOWED INTEREST AND DIVIDEND. 14. THE A.O. ALSO MADE AN ADDITION OF RS.1,98,000/- ON ACCOUNT OF UNEXPLAINED LOANS U/S 68 OF I.T. ACT. IN THE CASE OF SH. AKSHAY DANGA YACH. 15. THE APPEAL IN THE CASE OF THE ASSESSEE WAS DECI DED BY TRIBUNAL FOR THE ASSTT. YEAR 95-96 VIDE ORDER DATED 28.09.2007. VIDE THIS ORDER THE TRIBUNAL OBSERVED AS UNDER: THE LD. CIT(A) HAS UPHELD THE ADDITION OF RS.5,27,4 99/- I.E. BASED ON THE TOTAL OF LIABILITY SIDE OF THE BALANCE SHEET OF SH. AKSHAY DANGAYACH SON OF THE ASSESSEE, AS UNDISCLOSED INCOME OF THE ASSESSEE . AT THE OUTSET OF HEARING THE LD. A.R. SUBMITTED THAT THE SAME ADDITI ONS HAVE BEEN MADE IN THE CASE OF SHRI AKSHAY DANGAYACH AND SMT. RACHNA D ANGAYACH ON PROTECTIVE BASIS, WHICH WERE QUESTIONED BEFORE THE TRIBUNAL IN ITA NOS. 285/JP/2005 AND 596/JP/2003. THE TRIBUNAL HAS RESTO RED THE MATTER TO THE FILE OF A.O. FOR RECONSIDERATION; HENCE THERE I S NO QUESTION OF MAKING SIMILAR ADDITIONS IN THE HANDS OF HE ASSESSEE ON SU BSTANTIVE BASIS. ON VERIFICATION OF THE ORDER OF THE TRIBUNAL IN ITA NOS.285/JP/2005, 596/JP/2003 AND OTHERS, A COPY WHEREOF HAS BEEN PLA CED ON RECORD, WE FIND THAT THE ITA NO.285/JP/2005 PREFERRED BY THE R EVENUE IN THE CASE OF SHRI AKSHAY DANGAYACH IS RELATED TO A.Y. 1995-96 AN D ITA NO.596/JP/2003 PREFERRED BY THE REVENUE IN THE CASE OF SMT. RACHNA DANGAYACH (DAUGHTER OF THE ASSESSEE) IS RELATED TO A.Y. 1994-95, I.E. THE A.Y. UNDER CONSIDERATION IN THE CASE OF ASSESSEE BE FORE US. IN THE CASE OF SMT. RACHNA DANGAYACH FOR THE A.Y. 1994-95 THE FIRS T APPELLATE ORDER IN NOT UPHOLDING THE ASSESSMENT MADE ON PROTECTIVE BAS IS ON TOTAL INCOME OF RS.2,11,126/- WAS QUESTIONED BY THE REVENUE BEFORE THE TRIBUNAL. THE ADDITION OF RS.2,11,126/- IN HER CASE WAS CONSISTIN G OF RS.1,49,690/- TOWARDS CREDITORS SHOWN IN THE BALANCE SHEET, RS.28 .334/- ON ACCOUNT OF DEPOSITS SHOWN IN THE BANK ACCOUNT AND RS.12,160/- TOWARDS PURCHASING A FRIDGE. DURING THE COURSE OF ASSESSMENT PROCEEDINGS SHE TRIED TO EXPLAIN THAT DURING HER SCHOOL DAYS, SHE USED TO DEPOSIT MO NEY RECEIVED IN GIFT IN HER BANK ACCOUNT AND IN THE F.Y. 1992-93 THE TOTAL DEPOSIT BECAME RS.98,601/-. THE A.O. INSTEAD OF EXAMINING THOSE DE TAILS AND CLAIM FURNISHED BY HER IN THIS REGARD MADE ADDITION OF AM OUNT IN HER HANDS ON PROTECTIVE BASIS AND IN THE HANDS OF HER FATHER I.E . PRESENT ASSESSEE ON SUBSTANTIVE BASIS. THE TRIBUNAL HELD THAT THE A.O. SHOULD HAVE EXAMINED CORRECTNESS OF THE EXPLANATION OF SMT. RACHNA DANGA YACH BEFORE MAKING ADDITION ON PROTECTIVE BASIS IN HER HANDS AND ACCOR DINGLY WHILE SETTING 13 ASIDE FIRST APPELLATE ORDER REMANDED THE MATTER TO THE FILE OF A.O. TO EXAMINE THE CORRECTNESS OF THE CLAIM AND EXPLANATIO N OF THE ASSESSEE FROM THE MATERIAL ALREADY AVAILABLE ON RECORD. 16. THE ABOVE REFERRED ORDER IS FOR BOTH THE ASSESS MENT YEARS. FROM THE ABOVE ORDER, THE REVENUE WAS AWARE OF THE FACT THAT IT HAS TO RE CORD A FINDING AS TO WHETHER INVESTMENTS IN THE NAME OF AKSHYA ARE TO BE CONSIDERED IN HIS H ANDS OR IN THE HANDS OF HIS FATHER. THE REVENUE ACCEPTED THE CONTENTION OF THE ASSESSEE THA T INVESTMENTS BELONG TO SH. AKSHAY. NO REMEDIAL MEASURE TAKEN TO HOLD THAT SH. AKSHAY I S NOT THE OWNER OF INVESTMENTS. ONCE A CHOICE HAS BEEN MADE AND SUCH CHOICE BECOMIN G FIND THEN THE REVENUE CAN NOT BLOW HOT AND COLD. IT IS A SETTLED LAW THAT INCOME CAN NOT BE TAXED TWICE. ASSET CAN NOT BE CONSIDERED TO BE OWNED AT THE SAME TIME BY TWO PERS ONS UNLESS THEY ARE JOINT OWNERS OR HAVING SPECIFIC SHARE. THE MATTERS ARE ALSO OLD AND ARE BEING AGITATED AGAIN BEFORE THE TRIBUNAL. SH. AKSHAYA DANGAYACH FILED RETURN FOR TH E A.Y. 94-95 AND THE REVENUE ISSUED NOTICES U/S 148. IT SH. AKSHAYA WAS NOT THE OWNER O F ASSETS AND INCOME FROM SUCH ASSETS DO NOT BELONG TO HIM THEN THERE WAS NO CASE OF ISSU ING NOTICE U/S 148. HENCE WE FEEL THAT LD. CIT (A) WAS NOT JUSTIFIED IN CONFIRMING THE ADD ITION OF RS.5,27,449/-. 17. THE SECOND GROUND OF APPEAL BY THE ASSESSEE IS THAT LD. CIT (A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.1,49,690/- ON ACCOUNT OF LIABILITY IN THE BALANCE SHEET OF ASSESSEE IN RESPECT OF DAUGHTER RACHNA KHANDELWAL. 18. FACTS ARE SIMILLER TO THE FACTS IN RESPECT OF L IABILITY OF SH. AKSHAY DANGYACH. IN THE CASE OF RACHNA KHANDELWAL ASSTT ORDER FOR THE A SSTT. YEAR 94-95 HAS BEEN MADE ON 7.11.2007 AND THIS ORDER HAS BECOME FINAL-LOOKING T O OUR FINDING ON THE ISSUE OF LIABILITY OF SH. AKSHAY, WE HOLD THAT LD. CIT (A) WAS NOT JUS TIFIED IN CONFIRMING THE ADDITION OF RS.1,49,690/- 14 19. THE THIRD GROUND OF APPEAL WAS NOT PRESSED AND HENCE THE SAME IS DISMISSED. 20. NOW WE WILL TAKE UP APPEAL FOR THE A.Y. 95-96. 21. THE FIRST GROUND OF APPEAL IS THAT LD. CIT (A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.1,93,679/- ON ACCOUNT OF BANK DEPOSITS IN THE ACCOUNT OF SMT. RACHNA KHANDELWAL. 22. ASSESSMENT IN THE CASE OF SMT. RACHNA KHANDELWA L FOR A.Y. 95-96 WAS MADE BY A.O. ON 7.11.2007. UNEXPLAINED DEPOSITS IN BANK ACC OUNT OF RS.1,93,679/- WAS ADDED. ASSESSMENT IN THIS CASE HAS BEEN MADE ON 31.12.2008 . THE TRIBUNAL VIDE ORDER DATED 28.09.2007 HAS REFERRED TO THEIR ORDER IN THE CASE OF RACHNA KHANDELWAL AND REQUIRED TO REVENUE TO DECIDE THE ISSUE AFRESH. SUCH FINDING IS GIVEN IN THE CASE OF THE ASSESSEE. THE ASSESSMENT ORDER OF SMT. RACHNA KHANDELWAL HAS BEEN MADE AFTER THE ORDER OF TRIBUNAL. ONCE A FINDING HAS BEEN GIVEN AND THE FINDING BECOM E FINAL, THE REVENUE NOW CAN NOT TAKE A STAND AGAINST THAT FINDING WE, THEREFORE, HO LD THAT LD. CIT (A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS.1,93,679/-. 23. THE SECOND GROUND OF APPEAL OF THE ASSESSEE IS THAT LD. CIT (A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.7,30,507/- ON ACCOUNT OF BANK DEPOSITS IN THE NAME OF SH. AKSHAY DANGYACH AND SHRI AMIT DANGAYACH. 24. SO FAR AS BANK DEPOSITS IN THE NAME OF SH. AKSH AY DANGAYACH IS CONCERNED, THIS ISSUE HAS BEEN CONSIDERED WHILE DISPOSING OFF APPEA L OF THE ASSESSEE FOR THE A.Y. 94-95. FOLLOWING THAT ORDER WE HOLD THAT NO ADDITION ON AC COUNT OF LIABILITY IN THE NAME OF SH. AKSHAY DANGAYACH TO THE EXTENT OF RS.3,78,384/- IS DELETED. 25. THE ENTIRE ADDITION WAS SETASIDE BY THE TRIBUNA L. IT IS TRUE THAT IN CASE OF AKSHAY DANGYACH, RETURNS OF INCOME WERE FILED AND ASSESSME NTS HAVE BEEN MADE. NO RETURN OF 15 INCOME HAS BEEN FILED IN THE CASE OF AMIT. HOWEVER AFFIDAVITS OF BOTH AMIT & AKSHAY WERE FILED AND THEIR STATEMENTS WERE RECORDED ON 8. 3.2001. ON THE BASIS OF DOCUMENTARY EVIDENCES, THE REVENUE HAS ACCEPTED THAT INVESTMENT S BELONG TO AKSHAY & RACHNA. WE HAVE BEEN INFORMED THAT SH. AKSHAY HAS OWNED THE BA NK ACCOUNT OF AMIT AND ASSESSMENT HAS BEEN MADE ACCORDINGLY IN THE CASE OF AKSHAY. TH E A.O. WILL VERIFY AND IF BANK ACCOUNT OF AMIT HAS BEEN OWNED BY SH. AKSHAY AND AS SESSMENT HAS BEEN MADE ACCORDINGLY THEN NO ADDITION IN THE CASE OF ASSESSE E. ALTERNATIVELY THE A.O. WILL CONSIDER THE ADDITION IN THE HANDS OF AKSHAY. THE THIRD GROUND OF APPEAL WAS NOT PRESSED AND HEN CE THE SAME IS DISMISSED. IN THE RESULT APPEAL OF THE REVENUE IS DISMISSED W HILE APPEALS OF THE ASSESSEE ARE PARTLY ALLOWED. THE ORDER IS PRONOUNCED IN OPEN COURT ON 31.10.201 1 SD/- SD/- (R.K.GUPTA) (N.L.KALRA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 31.10.2011 *S.KUMAR* COPY FORWARDED TO:- 1. SHRI KAILASH CHAND DANGAYACH, HATHI BABU KA BAGH , BANI PARK, JAIPUR. 2. THE INCOME TAX OFFICER, WARD-3(2), JAIPUR. 3. THE CIT 4. THE CIT(A), 5. THE D/R, ITAT, JAIPUR 6. THE GUARD FILE IN ITA NOS.321,322 & 510/JP/2011 BY ORDER A.R., I.T.A.T., JAIPUR