MOHAN LAL KHANDELWAL, Jaipur V. ACIT, Jaipur

ITA 330/JPR/2013

• Counselvise Citation: 33023114 RSA 2013
• Duration Of Justice: 2 year(s) 4 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 28-03-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DILIP SHARMA
• Assessee Lawyers: K L MOOLCHANDAN I; R K KHUTETA
• Keywords: Search and seizure; Loose papers; Principle of natural justice; Additional evidence; Documents seized
• Section: 40A(3); 153A

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM VK;DJ VIHY LA- @ ITA NO. 330/JP/2013 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2008-09 MOHAN LAL KHANDELWAL, PROP.- M/S S.R. TOURS & TRAVELS, A-21, RANA PRATAP NAGAR, JHOTWARA, JAIPUR. CUKE VS. ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: AGZPK 3084 D VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : K.L. MOOLCHANDANI (ADV) & SHRI R.K. KHUTETA (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI DILIP SHARMA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 16/07/2015 MN?KKS'K .KK DH RKJH[ K @ DATE OF PRONOUNCEMENT : 11/08/2015 VKNS'K @ ORDER PER: T.R. MEENA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE ARISES AGAI NST THE ORDER DATED 04/02/2013 PASSED BY THE LEARNED C.I.T.(A) CEN TRAL, JAIPUR FOR THE A.Y. 2008-09. THE RESPECTIVE GROUNDS OF APPEALS ARE AS UNDER:- ITA 330/JP/2013_ MOHANLAL KHANDELWAL VS. ACIT 2 1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD CIT HAS FACTUALLY AND LEGALLY ERRED IN REJECTING THE REQUEST OF THE APPELLANT FOR ADMITTING ADDITIONAL E VIDENCE UNDER RULE 46A OF INCOME TAX RULES, 1962 ON FLIMSY GROUNDS. THE ADDITIONAL EVIDENCE MAY KINDLY BE ADMIT TED IN THE INTEREST OF EQUITY AND NATURAL JUSTICE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE AUTHORITIES BELOW HAVE FACTUALLY AND LEGALLY ERRED I N MAKING AND CONFIRMING THE ADDITION OF RS. 11,893/- ON ACCOUNT OF 1/3 RD DISALLOWANCE OUT OF THE TAXI RUNNING EXPENSES OF RS. 37,540/- WITHOUT APPRECIATING THE FA CTS OF THE CASE IN RIGHT PERSPECTIVE. THE ADDITION SO MA DE AND CONFIRMED DESERVES TO BE DELETED. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE AUTHORITIES BELOW HAVE FACTUALLY AND LEGALLY ERRED I N MAKING AND CONFIRMING ADDITION OF RS. 14,99,000/- U NDER SECTION 69B OF THE ACT ON ACCOUNT OF THE ALLEGED UNDISCLOSED INVESTMENT IN THE ALLEGED PURCHASE OF P LOT NO. 168, SHYAMPURI, KALWAD ROAD, JAIPUR WITHOUT APPRECIATING THE FACTS OF THE CASE IN RIGHT PERSPEC TIVE. THE SO MADE AND CONFIRMED DESERVES TO BE DELETED. 2. GROUND NOS. 1 AND 3 OF THE ASSESSEES APPEAL ARE AGAINST CONFIRMING THE ADDITION OF RS. 14,99,000/- U/S 69B OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). THE LD ASSESSING OFFIC ER OBSERVED THAT THE ASSESSEE IS HAVING INCOME FROM HOUSE PROPERTY, BUSI NESS AND OTHER SOURCES. HE FURTHER OBSERVED THAT A SEARCH AND SEIZ URE OPERATION WAS CARRIED OUT U/S 132(1) OF THE ACT ON 16/11/2007 AT THE BUSINESS AND ITA 330/JP/2013_ MOHANLAL KHANDELWAL VS. ACIT 3 RESIDENTIAL PREMISES OF THE ASSESSEE. DURING THE CO URSE OF SEARCH AND SEIZURE OPERATION, DOCUMENTS/LOOSE PAPERS WERE FOUND AND SEIZED. THE ASSESSEE FILED RETURN FOR INCOME ON 20/01/2009 DECL ARING INCOME OF RS. 2,18,600/-, WHICH INTER ALIA INCLUDED INCOME FROM HO USE PROPERTY SHOWING RENTAL INCOME FROM HOUSE NO. A-2, RANA PRATA P NAGAR, JAIPUR, INCOME FROM BUSINESS/JOB WORK OF FURNITURE, INCOME F ROM S.R. TOUR & TRAVELS AS IN LAST YEARS, INCOME FROM OTHER SOURCES AND INCOME FROM INTEREST ON BANK DEPOSITS. THE LD ASSESSING OFFICER ISSUED DETAILED QUESTIONNAIRE TO THE ASSESSEE IN 04/2/2009. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS NOTICED BY THE ASSESS ING OFFICER THAT THE ASSESSEE HAD PAID ONLY AMOUNTING RS. 1,01,000/- (IN CASH) ON 24/04/2007 FOR PURCHASE OF PLOT 168, SHYAMPURI, KAL WAD ROAD, JAIPUR FROM SHRI MURLIDHAR PUROHIT WHILE SALE CONSIDERATIO N OF RS. 16,00,000/- . THE ASSESSEE WAS ASKED TO FILE CONFIRMATION AND ALS O PRODUCED SHRI MURLIDHAR PUROHIT FOR VERIFICATION AND GENUINENESS OF THIS TRANSACTION. THE ASSESSEE HAD FAILED TO FILE CONFIRMATION AND IT WAS NOT POSSIBLE TO PURCHASE THIS PROPERTY BY JUST GIVING AMOUNT OF RS. 1,01,000/- ONLY AND SELLER HAD NOT DEMANDED BALANCE OF RS. 14,99,00 0/- TILL DATE AND THE PROPERTY HAD BEEN SHOWN STOCK OF THE ASSESSEE. I N ABSENCE OF ANY CORROBORATION FROM THE ASSESSEE, THE BALANCE AMOUNT OF RS. ITA 330/JP/2013_ MOHANLAL KHANDELWAL VS. ACIT 4 14,99,000/- WAS TREATED PAID OUTSIDE THE UNDISCLOSED INCOME OF THE ASSESSEE. THEREFORE, HE MADE ADDITION OF RS. 14,99,0 00/- U/S 68B OF THE ACT. 3. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OF FICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD CIT(A), WHO HAD CONFIRMED THE ADDITION BY OBSERVING THAT THE MAIN ISSUE WAS RE VOLVING ON THE AGREEMENT DATED 24/4/2007, THEREFORE, HE REPRODUCED RELEVANT PARAS OF THE SALE AGREEMENT DATED 24/4/2007 ON PAGE 14 OF HIS ORDER AND HELD THAT ON THE BASIS OF THIS AGREEMENT, PLOT WAS P URCHASED FOR RS. 16 LACS FROM SHRI MURLIDHAR PUROHIT BY THE APPELLANT A ND OUT OF A TOTAL SALE CONSIDERATION OF RS. 16 LACS, PAYMENT OF RS. 1,01,0 00/- WAS MADE ON THE SAME DATE I.E. ON 24/4/2007. THE REMAINING AMOUN T OF SALE CONSIDERATION WAS TO BE PAID BY THE APPELLANT WITHIN 15 DAYS TO THE SELLER PARTY. THE ABOVE TERMS AND CONDITIONS DEFINIT ELY INDICATED THAT FOR ALL PRACTICAL PURPOSES, SUCH PLOT HAS BEEN PURC HASED AND PAYMENT OF SUBSEQUENT REMAINING AMOUNT OF RS. 14,99,000/- A ND EXECUTION OF SALE DEED WAS ONLY AFTER PROCEDURAL REQUIREMENT. THE MAIN POINT TO BE NOTED IS THAT THE DOCUMENT DATED 24/4/2007 NOT ONLY AN AGREEMENT TO SELL BUT DEFACTO DOCUMENT OF SALE AS IT SPECIFICALL Y MENTIONED THAT THE ITA 330/JP/2013_ MOHANLAL KHANDELWAL VS. ACIT 5 PROPERTY IS SOLD. THERE IS NO EVIDENCE WITH THE ASSES SEE THAT SUBSEQUENTLY THIS AGREEMENT TO SELL WAS CANCELLED WIT HOUT CANCELLATION OF THIS SALE AGREEMENT NO SALE DEED COULD HAVE BEEN EXECUTED, IN FACT THE APPELLANT WAS COMPETENT TO EXECUTE SALE DEED AT HIS OWN. FURTHER IT IS ALSO NOTED THAT AFTER PURCHASE OF PLOT THE AP PELLANT HAD SHOWN THIS PROPERTY IN THE BOOKS OF ACCOUNT I.E. P&L ACCOUNT A S CLOSING STOCK AND PURCHASE CONSIDERATION OF RS. 16 LACS IS ALSO SHOWN . THE VITAL QUESTION IS THAT IF THE APPELLANT WAS NOT HAVING COMPLETE INT EREST IN SUCH PROPERTY HOW THE PROPERTY CAN BE SHOWN IN THE BOOKS O F ACCOUNT AS CLOSING STOCK. THE LD CIT(A) ALSO REPRODUCED P&L ACCO UNT SUBMITTED BY THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS AND CONCLUDED THAT PLOT NO. 168 SHYAMPURI HAS BEEN DISCLOSED IN CLOSIN G STOCK AT RS. 16 LACS. WHEREAS THE SAME AMOUNT IS SHOWN IN THE PURCHA SE ACCOUNT IN DEBIT SIDE. THE P&L ACCOUNT SO FURNISHED IS SENT BY THE APPELLANT HIMSELF. THE SAID DOCUMENTS FURNISHED BY THE APPELLA NT DURING THE ASSESSMENT PROCEEDINGS FURTHER PROVED THAT THE PLOT WAS DEFACTO PURCHASE AND ONLY POSSIBLE INFERENCE WAS ACCORDINGLY THAT THE REMAINING PAYMENT OF RS. 14,99,000/- WAS MADE IN UNA CCOUNTED MANNER. THE REVENUE HAS DISCHARGED HIS BURDEN OF PRO VE ON THE BASIS OF MATERIAL AVAILABLE ON RECORD INCLUDING SURROUNDI NG CIRCUMSTANCES OF ITA 330/JP/2013_ MOHANLAL KHANDELWAL VS. ACIT 6 HUMAN CONDUCT AND PREPONDERANCE OF PROBABILITIES. H E RELIED ON THE FOLLOWING CASE LAWS:- I) INDIAN AND EASTERN NEWS PAPER SOCIETY VS. CIT (197 9) 119 ITR 996 (SC). II) DHAKESHWARI COTTON MILLS LTD. VS. CIT (1954) 26 I TR 775 (SC). III) CHUHARMAL VS. CIT (1988) 172 ITR 250 (SC) IV) DINSSAW BARABSHAW SHROFF VS CIT (1943) 11 ITR 172 (BOMBAY). THE ESSENCE OF ABOVE MENTIONED JUDGMENTS WAS THAT THE PROCEEDINGS FOR ASSESSMENT FOR THE ASSESSING OFFICER UNDER THE IT ACT ARE OF QUASI JUDICIAL NATURE IN CHARACTER AND ADMISSIBILITY OF D OCUMENTS, EVIDENCE OR MATERIAL DIFFERS MAINLY IN IT PROCEEDINGS VIS A VIS TRIBUNAL PROCEEDINGS. SUBSEQUENTLY, THIS PROPERTY WAS PURCHASED BY THE THI RD PARTY. THERE WAS A CLAUSE IN THE AGREEMENT TO SELL DATED 24/4/200 7 THAT THE SECOND PARTY I.E. THE APPELLANT COULD HAVE GOT THE SALE DE ED EXECUTED IN FAVOUR OF ANY OTHER PARTY AND IN VIEW OF SUCH SPECIFIC PROV ISIONS, THERE CAN BE STRONG BELIEF THAT SUBSEQUENT REGISTRATION OF THE P LOT IN THE NAME OF ANY THIRD PARTY BY THE SELLER MAY HAVE BEEN AT THE INSTANCE OF THE APPELLANT HIMSELF. DURING THE APPELLATE PROCEEDINGS , THE APPELLANT FILED AFFIDAVIT FROM SHRI MURLIDHAR PUROHIT DATED 2/5/201 1 WHEREIN IT HAS BEEN MENTIONED THAT PLOT NO. 168, SHYAMPURI WAS STIL L IN POSSESSION OF ITA 330/JP/2013_ MOHANLAL KHANDELWAL VS. ACIT 7 SHRI MURLIDHAR PUROHIT I.E. THE SELLER PARTY. THE AF FIDAVIT IS SIGNED BY THE NOTARY PUBLIC. HOWEVER, AS PER SUBSEQUENT SALE DEED DATED 20/10/2008, THE PLOT IS SHOWN TO HAVE BEEN SOLD TO SHRI RAMESH SHARMA, IT IS INDICATED THAT AS ON DATE OF SIGNING OF SUCH AFFIDAVIT DATED 2/05/2011. THE SAID PLOT WAS NOT IN THE POSSESSION OF SHRI MURLIDHAR PUROHIT INASMUCH AS VIDE SALE DEED DATED 20/10/2008 , IT HAS ALREADY BEEN SOLD TO SHRI RAMESH SHARMA, THEREFORE, THE CON TENTS OF THE AFFIDAVIT FILED BY SHRI MURLIDHAR PUROHIT WERE DEFIN ITELY FALSE AND INCORRECT. KEEPING IN VIEW OF THE ABOVE FACT AND PAR TICULARLY SUCH CORROBORATION AND CIRCUMSTANTIAL EVIDENCE AS DISCUS SED ABOVE, IT IS BELIEVED THAT THE APPELLANT HAS MADE SUCH UNDISCLOS ED INVESTMENT/PAYMENT OF RS. 14,99,000/- IN PURCHASE O F THIS PLOT AND THEREFORE THE ADDITION WAS RIGHTLY MADE BY THE ASSES SING OFFICER. ACCORDINGLY, HE CONFIRMED THE ADDITION. 4. NOW THE ASSESSEE IN APPEAL BEFORE US. THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE APPELLANT BELONGS TO THE GRO UP CASES OF SHRI SHANKARLAL KHANDELWAL OF JAIPUR WHERE SEARCH OPERATI ONS WERE CARRIED OUT ON 16/11/2007 AND 17/11/2007. IN ASSESSMENT, TH E LD ASSESSING OFFICER MADE ADDITION OF RS. 1,01,000/- U/S 40A(3) OF THE ACT FOR ITA 330/JP/2013_ MOHANLAL KHANDELWAL VS. ACIT 8 MAKING CASH PAYMENT TOWARDS THE PURCHASE OF PLOT AND RS. 14,99,000/- U/S 68B OF THE ACT FOR ALLEGED UNDISCLO SED INVESTING IN THE PURCHASE OF PLOT NO. 168 SHYAMPURI KALWAD ROAD, JAI PUR. THE ADDITION MADE U/S 40A(3) OF THE ACT AT RS. 1,01,000/- WAS DEL ETED BY THE LD CIT(A) WHEREAS REMAINING ADDITION OF RS. 11,893/- I. E. 1/3 RD DISALLOWANCE OF EXPENSES AND RS. 14,99,000/- U/S 69B WAS CONFIRMED BY THE LD CIT(A). THE ASSESSEE FILED THE ADDITIONAL EVIDENCE UNDER RULE 46A OF THE INCOME TAX RULES, 1962 (IN SHORT THE RULE S), WHICH HAS BEEN IGNORED BY THE LD CIT(A) ON THE BASIS OF ADDIT IONAL EVIDENCE NOT PERMISSIBLE UNDER RULE 46A OF THE RULES. THE LD CIT(A ) HAS NOT ADMITTED THE ADDITIONAL EVIDENCE ON THE GROUND THAT THESE EVIDENCES SHOULD HAVE BEEN PRODUCED BEFORE THE ASSESSING OFFI CER AND ALSO SHRI MURLIDHAR PUROHIT WAS NOT PRODUCED BEFORE THE ASSESS ING OFFICER AT THE TIME OF ASSESSMENT PROCEEDINGS. THE ASSESSEES CASE PRIMA FACIE IS NOT COVERED UNDER RULE 46A, THEREFORE, HE DID NOT TAKE ANY COGNIZANCE OF AN AFFIDAVIT FILED. HE FURTHER SUBMITTED THAT IMMED IATELY AFTER EXECUTING THE AGREEMENT TO SALE DEED IN RESPECT OF SAID PLOT I.E. 168 SHYAMPURI KALWAD ROAD, JAIPUR ON 24/4/2007, A FEUD HAD ERUPTED BETWEEN THE SELLER SHRI MURLIDHAR PUROHIT AND THE APPELLANT. THE AGREEMENT TO SELL MADE ON 24/4/2007 COULD NOT BE MATERIALIZED INSTEAD OF SELLING THE PLOT ITA 330/JP/2013_ MOHANLAL KHANDELWAL VS. ACIT 9 TO THE APPELLANT. THE SELLER HAD SOLD THE PLOT DIREC TLY TO A THIRD PARTY SHRI RAMESH SHARMA OF MERTA CITY ON 20/10/2008 FOR FORFEITING RS. 1,01,000/- PAID BY THE APPELLANT AS ADVANCE TO THE SELLER. AT THE TIME OF ASSESSMENT PROCEEDINGS IN 2009, THE APPELLANT WAS NOT ON TALKING TERMS WITH THE SELLER DUE TO FEUD OVER NON-RETURN O F THE ADVANCE MONEY OF RS. 1,01,000/-. THE ADVANCE MONEY HAS NOT B EEN PAID BACK TILL DATE. HOWEVER, AT THE TIME OF APPEAL PROCEEDING S IN 2011, THE APPELLANT HAD PURSUED THE SELLER THROUGH A MIDDLEMA N TO GIVE AN AFFIDAVIT TO THIS EFFECT AFTER GREAT PERSUASION. AF TER THE LAPSE OF ONE AND HALF YEARS, THE APPEAL PROCEEDINGS WERE RESUMED IN N OVEMBER, 2012. MEANWHILE THE SELLER HAD EXPIRED LEAVING BEHIND NOB ODY. THE APPELLANT FILED COPY OF SALE DEED DATED 20/10/2008 BEFORE THE LD CIT(A) WHICH SUPPORTS THE ASSESSEES CLAIM THAT SALE DEED HAD DI RECTLY MADE SALE TO THIS PLOT TO SHRI RAMESH SHARMA FOR RS. 8 LACS ONLY . THEREFORE, THE LD CIT(A)S FINDING ON ADDITIONAL EVIDENCE IS DEVOID OF MERIT AND DESERVES TO BE QUASHED. 5. AT THE OUTSET, THE LD DR HAS VEHEMENTLY SUPPORTE D THE ORDER OF THE LD CIT(A) AND ARGUED THAT THE ASSESSEE WAS NOT A BLE TO PRODUCE SHRI MURLIDHAR PUROHIT BEFORE THE ASSESSING OFFICER TO VERIFY THE FACT. ITA 330/JP/2013_ MOHANLAL KHANDELWAL VS. ACIT 10 FURTHER AFFIDAVIT ALSO CONTRADICTORY WHEREIN THE SEL LER ADMITTED ON 02/5/2011 THAT TILL THIS DATE THE SAID PLOT WAS IN P OSSESSION OF SELLER WHEREAS THE SELLER VIDE REGISTERED DEED DATED 20/10/ 2008 HAD SOLD TO THE THIRD PARTY. THEREFORE, ORDER OF THE LD CIT(A) M AY PLEASE BE CONFIRMED. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. WHATE VER EVIDENCE NARRATED BY THE ASSESSING OFFICER AND CIT(A) SHOWS T HAT THE ASSESSEE HAD PURCHASED PLOT NO. 168 SHYAMPURI KALWAD ROAD, J AIPUR AT RS. 16 LACS. THE ASSESSEE HAD SHOWN ONLY RS. 1,01,000/- PAID ON DATE OF AGREEMENT I.E. ON 24/4/2007 BUT THE REMAINING AMOUN T OF RS. 14,99,000/- WAS PAID FROM UNDISCLOSED SOURCE. THE ASS ESSEES EXPLANATION IS AFTER THOUGHT WHEN HE HAS DISCLOSED T HIS PLOT IN PURCHASE AS WELL AS CLOSING STOCK IN P&L ACCOUNT AND BALANCE SHEET SUBMITTED BEFORE THE CIT(A) DURING THE APPEAL PROCE EDINGS. THE AFFIDAVIT FILED BY THE APPELLANT HAS PARTLY CONSIDE RED BY THE LD CIT(A), WHICH ALSO GOES AGAINST THE FACT OF THE CASE THAT SH RI MURLIDHAR PUROHIT FILED AFFIDAVIT ON 02/5/2011 AND ADMITTED THE POSSE SSION OF PLOT WITH HIM. HOWEVER, THE REGISTERED DEED WITH THE THIRD PART Y WAS DATED ITA 330/JP/2013_ MOHANLAL KHANDELWAL VS. ACIT 11 20/10/2008, WHICH IS CONTRADICTORY THE FACT OF AFFID AVIT. WE HAVE CONSIDERED VIEW THAT THIS ISSUE REQUIRED FURTHER INV ESTIGATION FROM THE SIDE OF SELLER OF PLOT, FROM SHRI RAMESH SHARMA PUR CHASER OF PLOT, ACTUAL POSSESSION OF PLOT ETC. THE ASSESSING OFFICER IS DIRECTED TO TAKE FINAL DECISION ON THE BASIS OF ENQUIRY AND EVIDENCE S. ACCORDINGLY, THIS GROUND OF APPEAL IS SET ASIDE FOR DE NOVO. THE ASSES SING OFFICER IS DIRECTED TO GIVE SUFFICIENT TIME TO THE ASSESSEE BE FORE DECIDING THIS ISSUE. 7. THE 2 ND GROUND OF APPEAL IS AGAINST CONFIRMING THE ADDITIO N OF RS. 11,893/- ON ACCOUNT OF 1/3 RD DISALLOWANCE OUT OF TAXI RUNNING EXPENSES OF RS. 37,540/-. THE LD ASSESSING OFFICER O BSERVED THAT THE ASSESSEE HAD NEVER DISCLOSED ANY INCOME FROM THE TA XI BUSINESS. DURING THE SEARCH, THE ASSESSEE WAS CONFRONTED WITH I NCRIMINATING DOCUMENTS SEIZED AND HE ADMITTED CARRYING ON THIS B USINESS. THESE ACCOUNTS HAD BEEN COMPLIED ON BY AFTER THE SEARCH WA S CONDUCTED. FURTHER NO PURCHASE BILLS HAD BEEN PRODUCED OF VEHI CLES PURCHASED AND CLAIMED USED BY THE ASSESSEE IN THIS YEAR. THE ASSES SEE HAD NOT PRODUCED BILLS/VOUCHERS IN RESPECT OF DIRECT PETROL EXPENSES AS WELL AS REPAIR AND MAINTENANCE OF VEHICLE EXPENSES CLAIMED. THERE IS ALSO NO ITA 330/JP/2013_ MOHANLAL KHANDELWAL VS. ACIT 12 EVIDENCE TO PROVE THAT THE VEHICLE CLAIMED TO BE RU NNING ON HIRE AS A TAXI WAS ACTUALLY IN THE BUSINESS AS NO DETAILS LIKE RATE PER KM, TOTAL KILOMETER AREA COVERED AND LOG BOOK ETC. IN ABSENCE OF WHICH THE DECLARED PROFIT WAS NOT ACCEPTABLE. THE ASSESSEE HAD CLAIMED TRAVELLING EXPENSES AT RS. 35,680/- FOR WHICH NO DETAILS HAD BE EN FILED NOR ANY VOUCHERS PRODUCED FOR VERIFICATION AND HENCE THESE EXPENSES WERE NOT VERIFIABLE. THE PERSONAL ELEMENT OF EXPENSES UNDER T HIS HEAD CANNOT BE RULED OUT. THEREFORE, 1/3 RD EXPENSES AT RS. 11,983/- WAS DISALLOWED BY THE LD ASSESSING OFFICER. 8. IN FIRST APPEAL, THE LD CIT(A) WAS CONFIRMED THE A DDITION BY OBSERVING AS UNDER:- I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE APPELLANT AS ALSO THE FINDINGS OF THE A.O.. IT MAY BE NOTED T HAT ADMITTEDLY THE APPELLANT HAS NOT SHOWN ANY SUCH INC OME FROM TOURS AND TRAVELS BEFORE THE SEARCH AND SUCH I NCOME HAS BEEN SHOWN ONLY IN RETURNS FILED IN RESPONSE TO SEA RCH ACTION. THE ASSESSEE HAS SHOWN GROSS RECEIPT FROM TOURS AND T RAVELS AT RS. 159454/- AGAINST WHICH TRAVELLING EXPENSES ET C. FOR RS. 35680/- ARE CLAIMED. THE A.OS CASE IS THAT SUCH CLA IM OF RS. 35680/- IS NOT WHOLLY SUPPORTED INASMUCH AS NO SUPPO RTING VOUCHERS AND RECORDS FOR VERIFICATION OF INCOME REC EIPTS EXPENSES ETC. ARE PRODUCED. THE A.O. HAS SPECIFICALL Y ITA 330/JP/2013_ MOHANLAL KHANDELWAL VS. ACIT 13 MENTIONED THAT BILLS AND VOUCHERS IN RESPECT OF DIR ECT PETROL EXPENSE AS WELL AS REPAIRS AND MAINTENANCE OF VEHICL E EXPENSES WERE NOT PRODUCED. THE A.O. ACCORDINGLY DIS ALLOWED 1/3 RD OF SUCH EXPENSES AND MADE ADDITION OF RS. 11893/-. THE APPELLANTS CASE IS THAT SUCH EXPENDITURE OF RS. 37 540/- WAS SHOWN AGAINST TAXI RUNNING BUSINESS OF RS. 159454/- AND THAT THE ASSESSEE WAS NOT HAVING ITS OWN TAXIES AND SUCH T AXIES FOR HIRING WERE ARRANGED THROUGH THE MARKET. IT IS A LSO STATED THAT COMPLETE DETAIL OF TAXI INCOME AND EXPENSES WAS SUBMITTED BEFORE THE A.O. AS ALSO RECEIPTS OF TAXI BUSINESS IS THROUGH CHEQUES. THE ISSUE IS ALSO STATED TO BE COV ERED BY THE DECISION OF HONBLE ITAT. ON CAREFUL CONSIDERATI ON OF RELEVANT FACT IT MAY BE NOTED THAT THE APPELLANT HA S DEFINITELY NOT PRODUCED SUPPORTING VOUCHERS IN RESPECT OF SUCH CLAIM OF RS. 35680/- THOUGH THE LEDGER DETAIL OF SUCH EXPENS ES APPEAR TO HAVE FILED. THE IMPORTANT ISSUE TO BE NOTED THAT SUCH CLAIM OF EXPENSES OF RS. 35680/- WAS MADE BY THE APPELLANT AND THE BASIC RESPONSIBILITY AND ONUS WAS ON THE APPELLA NT PRIMA FACIE PROVE BY FURNISHING RELIABLE DOCUMENTS IN FOR M OF BILL ETC. IN SUPPORT OF SUCH CLAIM. SIMPLY FILING LEDGER COPY OF DETAIL OF SUCH EXPENSES CANNOT SAID TO BE A PROPER JUSTIFICATION FOR SUCH CLAIM. AS REGARDS THE CONTEN TION OF THE APPELLANT THAT SUCH ISSUE WAS COVERED BY THE DECISIO N OF THE HONBLE ITAT IN THE CASE OF SH. MOHAN LAL KHANDELWAL VS. ACIT, IT MAY BE NOTED THAT THE ISSUE IN CASE OF SH. MOHAN LAL KHANDELWAL VS. ACIT WAS TOTALLY DIFFERENT INASMUCH AS IN THAT ITA 330/JP/2013_ MOHANLAL KHANDELWAL VS. ACIT 14 CASE THE HONBLE ITAT HAS HELD THAT IN THE CASE OF I NCOME BEING TAXED U/S 153A, THEN THE ASSESSEE CAN AGITATE THE ISSUE. THE HONBLE ITAT HAS REFERRED TO THE DECISION OF BOMBAY BENCH OF ITAT IN THE CASE OF DCIT VS. EVERSMIL E CONSTRUCTION PVT. LTD. IN WHICH IT HAS BEEN HELD THA T THE ASSESSMENT MADE EARLIER AND DISALLOWANCE MADE AND ACCEPTED BY THE ASSESSEE CAN BE AGITATED IN CASE TH E SAME ADDITIONS ARE MADE WHEN FRESH ASSESSMENT U/S 153A IS MADE. THE ABOVE FACTS WILL INDICATE THAT THE ISSUE UNDER CONSIDERATION BEFORE THE HONBLE ITAT WAS TOTALLY DIF FERENT. IN VIEW OF THESE FACTS I AM OF THE CONSIDERED VIEW THAT THE ASSESSEE HAS FAILED TO PROPERLY SUBSTANTIATE THE CL AIM OF WHOLE EXPENSES OF RS. 35680/- AND THEREFORE DISALLOWA NCE 1/3 RD OF SUCH EXPENSES AMOUNTING TO RS. 11893/- WAS REASONED, FAIR AND WELL JUSTIFIED. THE ADDITION MADE BY THE A.O. IS ACCORDINGLY CONFIRMED. 9. NOW THE ASSESSEE IS IN APPEAL BEFORE US. THE LD AR OF THE ASSESSEE SUBMITTED THAT THE LD ASSESSING OFFICER HA S NOT BROUGHT ON RECORD NOTHING SPECIFIC WHILE MAKING DISALLOWANCE, WHI CH IS DESERVED TO BE DELETED ON THE BASIS OF PAST HISTORY OF THE CASE . HE FURTHER ARGUED THAT IN PAST, THE LD ASSESSING OFFICER DISALLOWED TH ESE EXPENSES 1/3 RD , HOWEVER, THE LD CIT(A) HAD CONFIRMED 20% DISALLOWANCE S. WHEREAS ITA 330/JP/2013_ MOHANLAL KHANDELWAL VS. ACIT 15 THE HONBLE ITAT HAS CONFIRMED THESE ADDITIONS TO A TOKEN AMOUNT I.E. RS. 3,000/- TO RS. 4,000/-. 10. AT THE OUTSET, THE LD DR HAS VEHEMENTLY SUPPORT ED THE ORDER OF THE LD CIT(A) AND ARGUED THAT THERE IS NO PAST HISTO RY IN THIS CASE AS THE ASSESSEE NEVER HAD BEEN SHOWN THIS INCOME FROM THE TOUR AND TRAVEL AGENCY. ONLY DURING THE COURSE OF SEARCH PRO CEEDING, HE HAD ADMITTED THAT HE WAS HAVING INCOME FROM TOUR AND TRA VELS BUSINESS. THEREFORE, ORDER OF THE LD CIT(A) MAY BE CONFIRMED. 11. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE AS SESSEE HAD SHOWN TOTAL TOUR AND TRAVEL RECEIPT AT RS. 1,59,454/- AGA INST WHICH HE CLAIMED EXPENSES AT RS. 37,540/-. THE ASSESSEE HAD NOT PRODU CED ANY EVIDENCE BEFORE THE ASSESSING OFFICER AS WELL AS CIT( A) IN SUPPORT OF EXPENSES. HOWEVER, WITHOUT EXPENSES, THE INCOME CANNO T BE EARNED. THE EXPENSES CLAIMED ON DIESEL, PETROL, SALARY OF DR IVER CAN BE COLLECTED BY THE APPELLANT BUT THIS BUSINESS IS TOT ALLY UNORGANIZED. THEREFORE, WE CONFIRM ADDITION AT RS. 5,000/- IN PLAC E OF DISALLOWANCE MADE BY THE ASSESSING OFFICER AT RS. 11,893/- IN TH E INTEREST OF JUSTICE. ACCORDINGLY THIS GROUND OF APPEAL IS PARTLY ALLOWED. ITA 330/JP/2013_ MOHANLAL KHANDELWAL VS. ACIT 16 12. IN THE RESULT ASSESSEES APPEAL IS PARTLY ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT ON 11/08/2015. SD/- SD/- VKJ-IH-RKSYKUH VH-VKJ-EHUK (R.P.TOLANI) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ @ JAIPUR FNUKAD @ DATED:- 11 TH AUGUST, 2015 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI MOHAN LAL KHANDELWAL, JHOTWARA, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ACIT, CENTRAL CIRCLE-1, JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 330/JP/2013) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR