Jeewan Kumar Agrawal, Kanpur V. Asstt. Commissioner of Income Tax, Kanpur

ITA 346/LKW/2013

• Counselvise Citation: 34623714 RSA 2013
• Duration Of Justice: 2 year(s) 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 05-10-2015
• Assessment Year: 2001-2002
• Appeal Filed On: 16-05-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: REMAINING TH APPEAL IS FILED; ASSESSMENT YEAR A ND
• Keywords: Gift; Search and seizure; Notional interest
• Section: 153A; 147; 68; 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NOS.346 TO 348/LKW/2013 ASSTT.YRS.:2001-02, 2002-03 & 2005-06 SHRI JEEVAN KUMAR AGARWAL, 7/130, SWAROOP NAGAR, KANPUR. PAN:AALPA4280H VS. A.C.I.T., CENTRAL CIRCLE-2, KANPUR. (APPELLANT) (RESPONDENT) ITA NO.535/LKW/2013 ASSESSMENT YEAR:2005-06 A.C.I.T., CENTRAL CIRCLE-2, KANPUR. VS. SHRI JEEVAN KUMAR AGARWAL, 7/130, SWAROOP NAGAR, KANPUR. PAN:AALPA4280H (APPELLANT) (RESPONDENT) O R D E R PER A. K. GARODIA: OUT OF THIS BUNCH OF FOUR APPEALS, THERE ARE THREE APPEALS FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2001-02, 2002-03 A ND 2005-06 AND THE REMAINING 4 TH APPEAL IS FILED BY THE REVENUE FOR ASSESSMENT YEAR 2005-06. ALL THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. ASSESSEE BY SHRI P. K. KAPOOR, C. A. REVENUE BY DR. A. K. SINGH, CIT, D. R. DATE OF HEARING 0 6 /10/2015 DATE OF PRONOUNCEMENT 2 0 /11 /2015 2 2. FIRST WE TAKE UP THE APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2001-02 I.E. I.T.A. NO.346/LKW/2013. GROUNDS NO. 1 & 2 ARE AS UNDER: 1. BECAUSE ON THE FACTS AND CIRCUMSTANCES OF THE C ASE, PARTICULARLY THAT (A) THE APPELLANT COULD NOT HAVE BEEN TREATED T O BE THE PERSON SUBJECTED TO SEARCH UNDER SECTION 132(1 ); AND (B) IN ANY CASE, THE APPELLANT STOOD ASSESSED FOR THE ASSESSMENT YEAR 2002-03 AND THERE BEING NO ASSESSMENT RELATED PROCEEDINGS PENDING FOR THE SAID ASSESSMENT YEAR, THE ASSESSMENT MADE EARLIER COULD NOT BE TREATED TO HAVE ABATED; THE ASSESSING OFFICER WAS NOT VALIDLY VESTED WITH T HE JURISDICTION TO ISSUE NOTICE UNDER SECTION 153A AND MAKE SECOND ASSESSMENT IN PURSUANCE THEREOF. 2. BECAUSE VIEW WHICH IS CONTRARY TO THE PLEADING A S ABOVE, AS HAS BEEN TAKEN BY 'CIT(A)' IS WHOLLY ERRO NEOUS AND ILLEGAL TOO. 3. IT WAS SUBMITTED BY LEARNED A. R. OF THE ASSESSE E THAT THESE GROUNDS ARE NOT PRESSED. ACCORDINGLY, THESE GROUND S ARE REJECTED AS NOT PRESSED. 4. GROUND NO. 3 & 4 ARE INTER-CONNECTED, WHICH READ AS UNDER: 3. BECAUSE ON A DUE CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PARTICULARLY THAT (A) THE APPELLANT HAD DULY FILED THE 'RETURN', BY STATI NG THAT THE 'RETURN' FILED EARLIER BE TREATED TO BE THE 'RE TURN' FILED IN COMPLIANCE WITH THE NOTICE UNDER SECTION 1 53A; (B) THE 'RETURN' FILED IN THE SAID MANNER, EVEN IF, THE SAME WAS BELATED, CONSTITUTED 'RETURN FILED' IN COMPLIAN CE WITH THE NOTICE UNDER SECTION 153A; (C) THE 'RETURN' SO FILED BY THE APPELLANT, HAD DULY BE EN TAKEN COGNIZANCE OF BY THE ASSESSING OFFICER; 3 (D) AFTER THE 'RETURN' HAD BEEN FILED IN THE AFORESAID MANNER, THE APPELLANT WAS NOT SERVED WITH ANY QUESTIONNAIRE NOR ANY NOTICE UNDER SECTION 143(2); THE 'CIT(A)' SHOULD HAVE HELD THAT ACIT HAD LOST JU RISDICTION TO MAKE ASSESSMENT IN PURSUANCE OF NOTICE UNDER SECTIO N 153A AND ACCORDINGLY THE ASSESSMENT ORDER DATED 31/12/20 08 WAS VOID ABINITIO. 4. BECAUSE VARIOUS CASE LAWS AS HAVE BEEN REFERRED TO AND RELIED UPON BY THE 'C1T(A)' IN NEGATING THE APP ELLANT'S CONTENTION AS HAS BEEN REITERATED IN GROUND NO.2 HE AREINFORE ARE DISTINGUISHABLE ON FACTS, HAVING NO APPLICATION IN THE INSTANT CASE. 5. IT WAS SUBMITTED BY LEARNED A. R. OF THE ASSESSE E THAT PARA 8 TO 18 OF THE SYNOPSIS, SUBMITTED BY LEARNED A. R. OF THE ASSESSEE, ARE RELEVANT FOR THIS ISSUE AND SAME SHOULD BE CONSIDERED. AT T HIS JUNCTURE, IT WAS POINTED OUT BY THE BENCH THAT IN THESE PARA OF SYNO PSIS, RELIANCE HAS BEEN PLACED ON THE JUDGMENT OF HON'BLE ALLAHABAD HIGH CO URT RENDERED IN THE CASE OF CIT VS. RAJEEV SHARMA [2011] 336 ITR 678 AN D IT IS ALSO NOTED THAT THE JUDGMENT OF HON'BLE DELHI HIGH COURT IN TH E CASE OF ASHOK CHADDHA VS. CIT [2011] 337 ITR 399 IS AGAINST THE A SSESSEE BUT BY THIS VERY BENCH OF THE TRIBUNAL IN A CASE, ARGUED BY THE SAME A.R., IT WAS HELD THAT THE JUDGMENT OF HON'BLE DELHI HIGH COURT IN TH E CASE OF ASHOK CHADDHA (SUPRA) IS TO BE FOLLOWED BECAUSE IT IS IN THE CONTEXT OF SECTION 153A WHEREAS THE JUDGMENT OF HON'BLE ALLAHABAD HIGH COURT RENDERED IN THE CASE OF RAJEEV SHARMA (SUPRA) IS IN THE CONTEXT OF ASSESSMENT U/S 147 OF THE ACT. THEN WHY NOT THE SAME VIEW SHOULD BE T AKEN IN THE PRESENT CASE ALSO. IN REPLY, LEARNED A. R. OF THE ASSESSEE HAD NOTHING TO SAY. 6. LEARNED D. R. OF THE REVENUE SUBMITTED THAT THE JUDGMENT OF HON'BLE DELHI HIGH COURT IN THE CASE OF ASHOK CHADD HA (SUPRA) SHOULD BE FOLLOWED IN PREFERENCE TO THE JUDGMENT OF HON'BLE A LLAHABAD HIGH COURT IN 4 THE CASE OF RAJEEV SHARMA (SUPRA) BECAUSE THE JUDGM ENT OF HON'BLE DELHI HIGH COURT IS IN THE CONTEXT OF SECTION 153A WHEREA S THE JUDGMENT OF HON'BLE ALLAHABAD HIGH COURT IS IN THE CONTEXT OF S ECTION 147 OF THE ACT. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT THE JUDGMENT OF HON'BLE ALLAHABAD HIGH COURT IN THE CAS E OF RAJEEV SHARMA (SUPRA) IS IN THE CONTEXT OF ASSESSMENT U/S 147 WHE REAS THE JUDGMENT OF HONBLE DELHI HIGH COURT IN THE CASE OF ASHOK CHADD HA (SUPRA) IS IN THE CONTEXT OF ASSESSMENT U/S 153A AND IN THIS JUDGMENT , IT WAS HELD THAT THE REQUIREMENT OF ISSUE AND SERVICE OF NOTICE U/S 143( 2) IS NOT APPLICABLE IN THE ASSESSMENT MADE IN COMPLIANCE TO NOTICE U/S 153 A. WE ALSO FIND THAT IN THE CASE OF RAJEEV SHARMA (SUPRA), THE DECISION OF HON'BLE ALLAHABAD HIGH COURT IS IN FAVOUR OF THE ASSESSEE BUT THE SAM E IS IN THE CONTEXT OF SECTION 147 OF THE ACT. WE HAVE ALREADY CONSIDERED BOTH THESE JUDGMENTS IN A CASE AND HAVE DECIDED THE ISSUE AGAINST THE AS SESSEE BY FOLLOWING THE JUDGMENT OF HON'BLE DELHI HIGH COURT AND THE JUDGME NT OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF RAJEEV SHARMA ( SUPRA) WAS NOT FOLLOWED BECAUSE THIS JUDGMENT IS IN THE CONTEXT OF SECTION 148 ASSESSMENT AND NOT ASSESSMENT U/S 153A. NO OTHER J UDGMENT HAS BEEN BROUGHT TO OUR NOTICE BY LEARNED A. R. OF THE ASSES SEE WHICH IS IN THE FAVOUR OF THE ASSESSEE AND IS IN THE CONTEXT OF ASS ESSMENT U/S 153A OF THE ACT. THEREFORE, IN THE PRESENT CASE ALSO, WE FOLLO W THE JUDGMENT OF HON'BLE DELHI HIGH COURT AND DECIDE THE ISSUE AGAIN ST THE ASSESSEE. ACCORDINGLY, GROUND NO. 3 & 4 OF THE ASSESSEE ARE A LSO REJECTED. 8. GROUND NO. 5 IS AS UNDER: 5. BECAUSE IN ANY CASE, NO INCRIMINATING MATERIAL H AVING BEEN FOUND DURING THE COURSE OF SEARCH & SEIZURE AC TION UNDER SECTION 132(1) THAT TOOK PLACE ON 17 TH OCTOBER, 2006, AS PER PARTICULARS GIVEN HEREIN BELOW : 5 S L . NO. PLACES SUBJECTED TO SEARCH WARRANTS IN THE NAMES OF (I) M/S. BANARSI MISHTHAN BHANDAR (P) LTD., 26/72, BIRHANA ROAD, KANPUR 'M/S. BANARASI MISTHAN BHANDAR (P) LTD., S/SHRJ JEEVAN KUMAR AGARWAL, SMT. LALMANI AGARWAL & RAJEEV AGARWAL' (II) M/S. GRS JEWELLERS, 59/44, BIRHANA ROAD, KANPUR 'M/S. GRS JEWELLERS, JEEVAN KUMAR AGARWAL, SMT. SHAILA AGARWAL, RAJEEV AGARWAL & SANJEEV AGARWAL.' (III) 7/130, SWAROOP NAGAR, KANPUR 'M/S. BANARASI MISHTHAN BHANDAR (P) LTD., M/S. GRS JEWELLERS, JIWAN KUMAR AGARWAL, SMT. LALMANI AGARWAL, RAJEEV AGARWAL & SANJEEV AGARWAL.' VARIOUS ADDITIONS AS HAVE BEEN MADE IN THE ASSESSME NT ORDER DATED 31.12.2008 (AS HAVE BEEN SUSTAINED IN TERMS O F THE APPELLATE ORDER DATED 25.02.2013 UNDER APPEAL) WERE LIABLE TO BE DELETED. 9. LEARNED A. R. OF THE ASSESSEE REITERATED THE SAM E CONTENTIONS WHICH WERE RAISED BEFORE THE CIT(A). AT THIS JUNCTURE, I T WAS POINTED OUT BY THE BENCH THAT THIS ISSUE IS COVERED AGAINST THE ASSESS EE BY THE JUDGMENT OF HON'BLE ALLAHABAD HIGH COURT RENDERED IN THE CASE O F RAJ KUMAR ARORA IN INCOME TAX APPEAL NO. 156 DATED 01/07/2014. IN REP LY, LEARNED A. R. OF THE ASSESSEE HAD NOTHING TO DAY. 10. LEARNED D. R. OF THE REVENUE SUBMITTED THAT THI S ISSUE IS COVERED AGAINST THE ASSESSEE BY THE JUDGMENT OF HON'BLE ALL AHABAD HIGH COURT RENDERED IN THE CASE OF RAJ KUMAR ARORA IN INCOME T AX APPEAL NO. 156 DATED 01/07/2014. 11. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE F IND THAT IT WAS HELD BY HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF RAJ KUMAR ARORA (SUPRA) THAT THE REASONS GIVEN BY THE TRIBUNAL THAT NO MATE RIAL WAS FOUND DURING SEARCH CANNOT BE SUSTAINED AND IT IS ALSO HELD BY H ON'BLE ALLAHABAD HIGH 6 COURT THAT THE ASSESSING OFFICER HAS THE POWER TO R EASSESS THE INCOME OF THE ASSESSEE NOT ONLY FOR THE UNDISCLOSED INCOME WH ICH WAS FOUND DURING SEARCH BUT ALSO WITH REGARD TO THE MATERIAL THAT WA S AVAILABLE AT THE TIME OF ORIGINAL ASSESSMENT. RESPECTFULLY FOLLOWING THI S JUDGMENT OF HON'BLE ALLAHABAD HIGH COURT, WE HOLD THAT THERE IS NO MERI T IN GROUND NO. 5 AND THE SAME IS ALSO REJECTED. 12. GROUND NO. 6 TO 10 ARE INTER-CONNECTED, WHICH R EAD AS UNDER: 6. BECAUSE THE CIT(A) HAS ERRED IN LAW AND ON FACT S IN UPHOLDING THE ADDITION OF SUMS AGGREGATING RS.20 ,00,000/- AS HAD BEEN BORROWED FROM VARIOUS PERSONS AS PER PA RTICULARS GIVEN BELOW: SL.NO. NAME OF THE LENDERS AMOUNT DATE OF (RS.) BORROWING ------ ----------------------------- ------------- -------------- 1. SMAT RUBBER P. LTD. 5,00,000 19/07/2000 2. RAJ KUMAR AGARWAL 2,00,000 19/07/2000 3. CHANDRA SEKHAR AGARWAL 2,00,000 19/07/2000 4. ANIL KUMAR KHANDELWAL 1,50,000 19/07/2000 5. KHANDELWAL TRADING CO. 2,50,000 19/07/2000 6. SALONI GARG 7,00,000 20/07/2000 ------------- TOTAL 20,00,000 ------------- 7. BECAUSE CIT(A) HAS ERRED IN MAKING OBSERVATIONS TO THE EFFECT THAT THE ONUS OF PROVING THE IDENTITY, CREDI TWORTHINESS AND GENUINENESS OF THE BORROWINGS (AS MADE FROM THE ABOVE MENTIONED PERSONS) THAT HAD LIED UPON THE APPELLANT REMAINED UNDISCHARGED, IN VIEW OF THE PRINCIPLES LAID DOWN I N VARIOUS CASE LAWS (AS HAVE BEEN SPECIFICALLY REFERRED TO IN PARA 5.4 OF THE IMPUGNED APPELLATE ORDER). 8. BECAUSE THE CASE LAWS, PARTICULARLY IN THE CASE OF SHREELEKHA BANERJEE WAS IN FAVOUR OF THE APPELLANT AND THE AFFIRMATION OF THE ADDITION, BASED ON SUCH CASE LAW S, IS WHOLLY VITIATED. 7 9. BECAUSE LOOKING TO THE FACT THAT ALL THE REQUISI TE INFORMATION, WHICH WENT ON TO CONCLUSIVELY PROVED T HE NATURE AND SOURCE OF THE BORROWINGS IN QUESTION, THE CASE LAWS REFERRED TO BY THE CIT(A), PARTICULARLY THE CASE OF : (I) GOVINDRAJUIU MUDALIAR VS. CIT 34 FTR 807 (SC) (II) CIT VS. MOHANA KALA 291 ITR 278 (SC) WERE NOT APPLICABLE IN THE PRESENT CASE AND THE VIE W TAKEN BY THE CIT(A) IS WHOLLY ERRONEOUS. 10. BECAUSE IN ANY CASE PRESUMPTION UNDER SECTION 1 32(4A) READ WITH SECTION 292C WAS IN FAVOUR OF THE APPELLA NT AND THERE BEING NO MATERIAL BROUGHT ON RECORD BY THE AUTHORIT IES BELOW, BY WAY OF REBUTTAL OF THE SAID PRESUMPTION, THE ADD ITION IN QUESTION DESERVE TO BE DELETED. 13. IT WAS SUBMITTED BY LEARNED A. R. OF THE ASSESS EE THAT APART FROM MAKING ADDITION OF RS.20,00,000/- IN RESPECT OF LOA N RECEIVED BY THE ASSESSEE U/S 68 OF THE ACT, THE ASSESSING OFFICER I N THE ASSESSMENT ORDER HAS ALSO NOTED THAT THE SAME AMOUNT WAS GIVEN BY TH E ASSESSEE ON LOAN TO JEEVAN KUMAR VINOD KUMAR OF RS. 20 LACS AND NO I NTEREST INCOME WAS SHOWN BY THE ASSESSEE. THE A.O. HELD THAT INTEREST CHARGEABLE ON THIS LOAN IS RS. 2.40 LACS AND THE SAME IS TAXABLE. THEREAFTE R, HE HELD THAT AGAINST INTEREST INCOME OF RS. 2.40 LACS, DEDUCTION ON ACCO UNT OF INTEREST PAID BY THE ASSESSEE AND CAPITALIZED RS. 156,942/- IS ALLOW ABLE AND AFTER ALLOWING DEDUCTION FOR THE SAME, HE MADE ADDITION OF THE NET AMOUNT OF RS. 83,058/-. HE FURTHER SUBMITTED THAT ALTHOUGH IT IS HELD BY LEARNED CIT (A) THAT NOTIONAL INTEREST OF RS. 2.40 LACS BROUGHT TO TAX BY THE A.O. WAS NOT JUSTIFIED AND HE DELETED THE SAME AND AS A CONSEQUE NCE, THE INTEREST PAID ON THIS LOAN RS. 156,942/- STANDS CAPITALIZED AS NO DEDUCTION FOR IT WAS CLAIMED BY THE ASSESSEE BUT STILL THE FACT REMAINS THAT AS PER THE A.O., DEDUCTION OF THIS INTEREST EXPENDITURE ON THIS LOAN OF RS. 20 LACS WAS ACCEPTED BY THE A.O. AS ALLOWABLE AND THEREFORE, HE CANNOT SAY THAT THIS 8 LOAN IS UNEXPLAINED AND MAKE ADDITION THEREOF U/S 6 9. LEARNED DR OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BEL OW. 13.1 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND FORCE IN THE SUBMISSIONS OF THE LEARNED AR OF THE ASSESSEE. THIS IS UNDISPUTED FACT THAT AS PER THE ASSESSMENT ORDER, IT IS HELD BY THE A.O. THAT DEDUCTION OF RS. 156,942/- BEING INTEREST ON THIS VERY LOAN OF RS. 2 0 LACS IS ALLOWABLE AND HE MADE ADDITION OF ONLY RS. 83,058/- AFTER REDUCIN G THIS AMOUNT FROM THE AMOUNT OF RS. 2.40 LACS BROUGHT TO TAX BY HIM AS NO TIONAL INTEREST ON LOAN GIVEN BY THE ASSESSEE OF RS. 20 LACS. WE ARE AWARE THAT IT IS HELD BY LEARNED CIT (A) THAT THIS NOTIONAL INTEREST OF RS. 2.40 LACS CANNOT BE BROUGHT TO TAX BUT THIS IS IMMATERIAL BECAUSE IF TH E ASSESSEE ACTUALLY RECEIVED INTEREST ON THIS LOAN GIVEN BY THE ASSESSE E AT ANY POINT OF TIME, THE SAME CAN BE TAXED ONLY AFTER REDUCING DEDUCTION ALLOWED BY THE A.O. HIMSELF ON ACCOUNT OF INTEREST PAID BY THE ASSESSEE ON THIS VERY LOAN. HAVING ALLOWED DEDUCTION ON ACCOUNT OF INTEREST ON THIS VERY LOAN OF RS. 20 LACS, THE A.O. CANNOT SAY THAT THE LOAN IS UNEXPLAI NED AND ADD THE SAME U/S 68 BECAUSE THE A.O. CANNOT BLOW HOT AND COLD TO GETHER. WE, THEREFORE, DELETE THIS ADDITION. 14. GROUND NO. 11 IS AS UNDER: 11. BECAUSE THE 'CIT(A)' HAS ERRED IN LAW AND ON FACTS IN SUSTAINING THE ADDITION OF RS.15,000/- IN THE HANDS OF THE APPELLANT, ON ACCOUNT OF ALLEGED ''LOW WITHDRAWALS' FOR MEETING HOUSEHOLD EXPENSES. 15. IT WAS SUBMITTED BY LEARNED A. R. OF THE ASSESS EE THAT THE ASSESSING OFFICER HAS HELD IN THE ASSESSMENT ORDER THAT FOR A FAMILY OF 7 MEMBERS, HOUSE HOLD WITHDRAWAL SHOWN BY THE ASSESSE E AND HIS FAMILY OF RS.340,500/- IS NOT SUFFICIENT. AS PER ASSESSING O FFICER, SUCH HOUSE HOLD WITHDRAWAL SHOULD BE RS.4 LACS BUT NO SEPARATE ADDI TION WAS MADE BY HIM 9 ON THIS BASIS THAT ADDITION ON ACCOUNT OF SUPPRESSE D INCOME FROM GOPALAYA IS MADE AND THEREFORE, NO SEPARATE ADDITION IS MADE FOR LOW HOUSE HOLD WITHDRAWALS. SINCE THE CIT(A) HAS DELETED THE ADDI TION MADE BY ASSESSING OFFICER ON ACCOUNT OF GOPALAYA OF RS. 480,000/-, CI T(A) HAS HELD THAT AN ADDITION OF RS.15,000/- ON ACCOUNT OF LOW HOUSE HOL D WITHDRAWALS WILL MEET THE ENDS OF JUSTICE. HE SUBMITTED THAT THERE IS NO BASIS INDICATED BY CIT(A) FOR UPHOLDING THE ADDITION OF RS.15,000/- AN D THEREFORE, THE SAME SHOULD BE DELETED. LEARNED D. R. OF THE REVENUE SUP PORTED THE ORDER OF LEARNED CIT(A). 16. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE F IND THAT THE ASSESSEE HAS SHOWN HOUSE HOLD WITHDRAWAL OF RS.340, 500/-. THE SAME WAS ESTIMATED BY ASSESSING OFFICER AT RS. 4 LAC BU T CIT(A) HAS ALTHOUGH AGREED WITH THE ESTIMATE OF THE A.O. ABOUT HOUSEHOL D EXPENSES OF RS. 4 LACS, BUT HE CONFIRMED THE ADDITION OF ONLY RS.15,0 00/- BY SAYING THAT THE FAMILY HAS MANY EARNING MEMBERS. BUT NEITHER THE A SSESSING OFFICER NOR THE CIT(A) HAS GIVEN ANY BASIS FOR HOLDING THAT THE HOUSE HOLD WITHDRAWAL SHOWN BY THE ASSESSEE IS NOT SUFFICIENT. HENCE, WE DELETE THIS ADDITION OF RS.15,000/-. THIS GROUND IS ALLOWED. 17. IN THE RESULT, THE APPEAL OF THE ASSESSEE STAND S ALLOWED PARTLY. 18. NOW WE TAKE UP THE APPEAL OF THE ASSESSEE FOR A SSESSMENT YEAR 2002-03 I.E. I.T.A. NO.347/LKW/2013. 19. GROUND NO. 1 TO 5 ARE AS UNDER: 1. BECAUSE ON THE FACTS AND CIRCUMSTANCES OF THE C ASE, PARTICULARLY THAT (C) THE APPELLANT COULD NOT HAVE BEEN TREATED T O BE THE PERSON SUBJECTED TO SEARCH UNDER SECTION 132(1 ); AND 10 (D) IN ANY CASE, THE APPELLANT STOOD ASSESSED FOR THE ASSESSMENT YEAR 2002-03 AND THERE BEING NO ASSESSMENT RELATED PROCEEDINGS PENDING FOR THE SAID ASSESSMENT YEAR, THE ASSESSMENT MADE EARLIER COULD NOT BE TREATED TO HAVE ABATED; THE ASSESSING OFFICER WAS NOT VALIDLY VESTED WITH T HE JURISDICTION TO ISSUE NOTICE UNDER SECTION 153A AND MAKE SECOND ASSESSMENT IN PURSUANCE THEREOF. 2. BECAUSE VIEW WHICH IS CONTRARY TO THE PLEADING A S ABOVE, AS HAS BEEN TAKEN BY 'CIT(A)' IS WHOLLY ERRO NEOUS AND ILLEGAL TOO. 3. BECAUSE ON A DUE CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PARTICULARLY THAT (A) THE APPELLANT HAD DULY FILED THE 'RETURN', BY STATI NG THAT THE 'RETURN' FILED EARLIER BE TREATED TO BE THE 'RE TURN' FILED IN COMPLIANCE WITH THE NOTICE UNDER SECTION 1 53A; (B) THE 'RETURN' FILED IN THE SAID MANNER, EVEN IF, THE SAME WAS BELATED, CONSTITUTED 'RETURN FILED' IN COMPLIAN CE WITH THE NOTICE UNDER SECTION 153A; (C) THE 'RETURN' SO FILED BY THE APPELLANT, HAD DULY BE EN TAKEN COGNIZANCE OF BY THE ASSESSING OFFICER; (D) AFTER THE 'RETURN' HAD BEEN FILED IN THE AFORESAID MANNER, THE APPELLANT WAS NOT SERVED WITH ANY QUESTIONNAIRE NOR ANY NOTICE UNDER SECTION 143(2); THE 'CIT(A)' SHOULD HAVE HELD THAT ACIT HAD LOST JU RISDICTION TO MAKE ASSESSMENT IN PURSUANCE OF NOTICE UNDER SECTIO N 153A AND ACCORDINGLY THE ASSESSMENT ORDER DATED 31/12/20 08 WAS VOID ABINITIO. 4. BECAUSE VARIOUS CASE LAWS AS HAVE BEEN REFERRED TO AND RELIED UPON BY THE 'C1T(A)' IN NEGATING THE APP ELLANT'S CONTENTION AS HAS BEEN REITERATED IN GROUND NO.2 HE AREINFORE ARE DISTINGUISHABLE ON FACTS, HAVING NO APPLICATION IN THE INSTANT CASE. 5. BECAUSE IN ANY CASE, NO INCRIMINATING MATERIAL H AVING BEEN FOUND DURING THE COURSE OF SEARCH & SEIZURE AC TION UNDER 11 SECTION 132(1) THAT TOOK PLACE ON 17 TH OCTOBER, 2006, AS PER PARTICULARS GIVEN HEREIN BELOW : S L . NO. PLACES SUBJECTED TO SEARCH WARRANTS IN THE NAMES OF (I) M/S. BANARSI MISHTHAN BHANDAR (P) LTD., 26/72, BIRHANA ROAD, KANPUR 'M/S. BANARASI MISTHAN BHANDAR (P) LTD., S/SHRJ JEEVAN KUMAR AGARWAL, SMT. LALMANI AGARWAL & RAJEEV AGARWAL' (II) M/S. GRS JEWELLERS, 59/44, BIRHANA ROAD, KANPUR 'M/S. GRS JEWELLERS, JEEVAN KUMAR AGARWAL, SMT. SHAILA AGARWAL, RAJEEV AGARWAL & SANJEEV AGARWAL.' (III) 7/130, SWAROOP NAGAR, KANPUR 'M/S. BANARASI MISHTHAN BHANDAR (P) LTD., M/S. GRS JEWELLERS, JIWAN KUMAR AGARWAL, SMT. LALMANI AGARWAL, RAJEEV AGARWAL & SANJEEV AGARWAL.' VARIOUS ADDITIONS AS HAVE BEEN MADE IN THE ASSESSME NT ORDER DATED 31.12.2008 (AS HAVE BEEN SUSTAINED IN TERMS O F THE APPELLATE ORDER DATED 25.02.2013 UNDER APPEAL) WERE LIABLE TO BE DELETED. 20. IT WAS FAIRLY AGREED BY BOTH THE SIDES THAT THE SE GROUNDS ARE IDENTICAL TO THE GROUNDS RAISED BY THE SAME ASSESSE E IN ASSESSMENT YEAR 2001-02 AND ALSO BY THE WIFE OF THE ASSESSEE SMT. S HAILA AGARWAL IN I.T.A. NO.387 AND 352/LKW/2013 AND THESE GROUNDS MAY BE DE CIDED IN THE PRESENT YEAR ALSO IN THE SIMILAR LINE AS IN THE CAS E OF SMT. SHAILA AGARWAL. 21. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE F IND THAT THE ISSUE RAISED BY THE ASSESSEE IN THESE GROUNDS REGARDING N ON-ISSUE OF NOTICE U/S 143 (2) IS DECIDED BY US IN A.Y. 2001 02 AGAINST THE ASSESSEE AS PER PARA NO. 7 ABOVE. THE SECOND ISSUE ABOUT NON FINDIN G OF INCRIMINATING MATERIAL IN SEARCH IS IDENTICAL TO THE ISSUE RAISED IN THE APPEAL OF SMT. SHAILA AGARWAL. IN THE CASE OF SMT. SHAILA AGARWAL , THIS ISSUE WAS DECIDED AGAINST THE ASSESSEE AND THEREFORE, ON SIMILAR LINE , IN THE PRESENT CASE 12 ALSO, THIS ISSUE IS DECIDED AGAINST THE ASSESSEE. FOR THE PURPOSE OF READY REFERENCE, RELEVANT PARA FROM THE TRIBUNAL ORDER IN THE CASE OF SMT. SHAILA AGARWAL IS REPRODUCED BELOW 14. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT IT WAS HELD BY HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF RAJ KUMAR ARORA (SUPRA) THAT THE REASONS GIVEN BY THE T RIBUNAL THAT NO MATERIAL WAS FOUND DURING SEARCH, CANNOT BE SUSTAINED SINCE IT IS HELD BY HON'BLE ALLAHABAD HIG H COURT THAT THE ASSESSING OFFICER HAS THE POWER TO REASSESS THE RETURNS OF THE ASSESSEE NOT ONLY FOR THE UNDISCLOSED INCOME WH ICH WAS FOUND DURING SEARCH BUT ALSO WITH REGARD TO THE MAT ERIAL THAT WAS AVAILABLE AT THE TIME OF ORIGINAL ASSESSMENT. RESPECTFULLY FOLLOWING THIS JUDGMENT OF HON'BLE ALLAHABAD HIGH C OURT, WE HOLD THAT THERE IS NO MERIT IN GROUND NO. 5 AND THE SAME IS REJECTED. 22. ACCORDINGLY GROUNDS NOS. 1 TO 5 ARE REJECTED. 23. GROUND NOS. 6 TO 9 ARE INTER-CONNECTED, WHICH R EAD AS UNDER: 6. BECAUSE THE AUTHORITIES BELOW HAVE ERR ED IN LAW AND ON FACTS IN MAKING/SUSTAINING ADDITION OF RS .26,22,482/- MADE UP OF (A) VALUE OF INDIAN MILLENNIUM DEPOSIT (IMD) OF 50,000 US$ (AS WORKED OUT BY THE A.O. ON 19.06.2001 WHICH IS THE DATE OF ENDORSEMENT ON 'IMD' AND DELIVERED BY STATE BANK OF INDIA. 24,50,918 (B) UNDISCLOSED EXPENDITURE AS WORKED OUT AT THE RATE OF 7% OF ABOVE. 2,4 5,091 26,96,009 TO THE INCOME OF THE APPELLANT, ON THE GROUND THAT IDENTITY OF THE DONOR AS ALSO THE CIRCUMSTANCES IN WHICH GIFT H AVE BEEN MADE, REMAINED UNPROVED. 7. BECAUSE THE GIFT OF 'IMD' HAD BEEN EXECUTED BY THE DONOR, THROUGH STATE BANK OF INDIA, A NOMINATED AGE NCY UNDER THE SCHEME FORMULATED BY THE GOVERNMENT OF INDIA AN D THE 13 ISSUES RAISED BY THE AUTHORITIES BELOW, WERE WHOLLY EXTRANEOUS TO THE SAID SCHEME. 8. BECAUSE THE APPELLANT ENJOYED IMMUNITY FROM ALL SUCH ENQUIRIES AS HAVE BEEN REFERRED TO BY THE AUTHORITI ES BELOW AND THE ADDITION MADE/ SUSTAINED BY THEM BEING BASE D ON A WHOLLY ILLEGAL PREMISE, IS NOT SUSTAINABLE. 9. BECAUSE THE CASE LAWS AS HAVE BEEN REFERRED TO A ND RELIED UPON BY THE 'CIT(A)' IN UPHOLDING THE ADDITI ON FOR SUMS AGGREGATING RS.26,96,009/- ARE NOT APPLICABLE ON TH E FACTS OF THE PRESENT CASE AND ACCORDINGLY THE VIEW TAKEN BY HIM IS WHOLLY VITIATED. 24. IT WAS AGREED BY BOTH THE SIDES THAT THIS ISSUE IS ALSO IDENTICAL TO THE ISSUE RAISED BY THE ASSESSEE IN THE CASE OF SMT. SH AILA AGARWAL, WIFE OF THE PRESENT ASSESSEE IN I.T.A. NO. 387 AND 352/LKW/2013 AND THESE GROUNDS MAY BE DECIDED IN THE PRESENT CASE ALSO IN THE SIMI LAR LINE AS IN THE CASE OF SMT. SHAILA AGARWAL. WE FIND THAT IN THE CASE OF S MT. SHAILA AGARWAL, THIS ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE AS PER PARA 18 OF THAT TRIBUNAL ORDER WHICH IS REPRODUCED BELOW FOR THE SAKE OF REA DY REFERENCE: 18. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. FIR ST WE REPRODUCE PARA 24 & 25 OF THE SYNOPSIS FILED BY THE ASSESSEE AS UNDER: 24. WHILE DEALING WITH ALMOST SIMILAR SCHEME EARLI ER LAUNCHED BY STATE BANK OF INDIA, WHICH WAS NAMED AS RESURGENT INDIA BOND, 'RIB' FOR SHORT THE HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF KANCHAN SINGH V S. CIT REPORTED IN (2009] 221 CTR 0456 HELD THAT IN VI EW OF THE FACT THAT SUCH BONDS COULD BE PURCHASED ONLY BY NRLS AGAINST THE FOREIGN CURRENCY, (AS IS THE CASE HERE) THE SOURCE OF MONEY FOR THE PURCHASE OF THE BOND BEING US $, IS OUTSIDE INDIA. THE BONDS BEING TRANSFERABLE WERE TRANSFERRED IN FAVOUR OF THE ASSE SSEE BY NON-RESIDENT. THEREFORE, NO ADDITION COULD BE MA DE IN THE HANDS OF THE DONNEE. A COPY OF THE SAID JUDGMENT IS ENCLOSED AND KIND ATTENTION OF YOUR 14 HONOUS IS INVITED TO PARAS 22 AND 23 THEREOF, WHICH ARE REPRODUCED HEREUNDER:- '22. THE REASONS FOR ARRIVING AT A CONCLUSION ARE A S FOLLOWS: 1. FOUR RESURGENT INDIA BONDS OF 10,000 US DOLLARS EACH WERE PURCHASED ON 1ST OCT., 2003 ON THE APPLICATION OF SRI K.C. KAPADIA, WHICH IS ESTABLISH ED FROM THE APPLICATION SENT BY THE CHIEF MANAGER, SBI, NRI BRANCH, MUMBAI. 2. SUCH BONDS COULD BE PURCHASED ONLY BY NRI AGAINST THE FOREIGN CURRENCY. ADMITTEDLY, THE BONDS WERE PURCHASED AGAINST US DOLLARS. THUS, THE SOURCE OF THE MONEY FOR THE PURCHASE OF THE BOND, BEING US DOLLARS IS OUTSIDE INDIA. 3. THE BONDS REVEAL THAT THEY WERE TRANSFERABLE AND, ACCORDINGLY, THEY WERE TRANSFERRED IN FAVOUR OF THE ASSESSEE BY SRI K.C. KAPADIA. 4. AS A RESULT OF TRANSFERS OF SUCH BONDS IN FAVOUR OF THE ASSESSEE, THE ASSESSEE RECEIVED THE MATURITY AMOUNT FROM THE SBI AND CREDITED IN HER ACCOUNT. LETTER OF THE CHIEF MANAGER, SBI, NRI BRANCH, MUMBAI, DT. 28TH FEB., 2006 CONFIRMS THE TRANSFERS BY WAY OF GIFT TO THE ASSESSEE BY SRI K.C. KAPADIA. 5. UNDISPUTEDLY, IN PURCHASING THE FOUR BONDS THE INVESTMENTS WERE MADE ON 1ST OCT., 1998 AND NOT IN THE YEAR UNDER CONSIDERATION AND IN THE YEAR UNDER CONSIDERATION, NAMELY, IN THE ASST. YR. 2004- 05 ONLY THE MATURITY AMOUNTS OF THE BOND WERE RECEIVED. 6. THUS, SO FAR AS THE YEAR UNDER CONSIDERATION IS CONCERNED, THE SOURCE AND NATURE OF DEPOSIT ARE FULLY ESTABLISHED AND THE QUERY WITH REGARD TO THE INVESTMENT MADE IN PURCHASING THE BONDS COULD BE MADE ONLY IN THE FINANCIAL YEAR 1998-99 RELEVANT TO THE ASST. YR. 1999-2000 AND NOT IN THE YEAR UNDER CONSIDERATION. 15 7. AFTER THE AMENDMENT IN SECTION 5(IIIE) OF THE GT AC T BY THE FINANCE (NO.2) ACT OF 1991, GIFT COULD BE MADE TO THE PERSON OTHER THAN RELATIVES ALSO. THE OMISSION OF THE WORD 'RELATIVE' IN THE SECTION SHOW S THAT THE AMENDMENT WAS MADE TO PROMOTE THE GIFT BY NRI TO THE PERSONS OTHER THAN RELATIVES TO ENCOURAGE INFLOW OF FOREIGN MONEY IN INDIA THROUGH GIFTS. 8. SRI K.C. KAPADIA, BY CONFIRMATORY LETTER DT. 8TH FE B., 2006 DULY NOTARIZED BY NOTARY PUBLIC OF NEW JERSEY, HAS CONFIRMED THE GIFT OF FOUR SUCH BONDS. THE LETTERS WRITTEN BY THE ASSESSING AUTHORITY WERE RETURNED UNSERVED WITH THE REMARK 'NOT DELIVERABLE AS ADDRESSED UNABLE TO FORWARD' DOES NOT MEAN THAT SRI K.C. KAPADIA, WAS NOT TRACEABLE AND WAS NOT IN EXISTENCE. THERE MAY BE SO MANY REASONS THAT THE LETTER COULD NOT BE DELIVERED. MERELY BECAUSE THE ASSESSEE COULD NOT TELL ANY OTHER ADDRESS OF SRI K. C. KAPADIA, IT CANNOT BE INFERRED THAT SRI K.C. KAPADI A WAS/IS NOT IN EXISTENCE AND HIS IDENTITY IS DOUBTFU L. 9. THE APPLICATION MOVED BY SRI K.C. KAPADIA FOR THE PURCHASE OF FOUR BONDS WITH THE SBI, THE ISSUE OF THE BONDS IN THE NAME OF SRI K.C. KAPADIA AGAINST US DOLLARS IS BY ITSELF AN EVIDENCE TO PROOF THE IDENTITY OF SRI K.C. KAPADIA. 23.IN THE FACTS AND CIRCUMSTANCES AND THE REASONS GIVEN ABOVE, WE ARE OF THE VIEW THAT THERE IS NO REASON TO DOUBT THE GENUINENESS OF THE GIFT BY SRI K.C. KAPADIA TO THE ASSESSEE. IN ANY VIEW OF THE MATTER, THE ASSESSEE WAS ABLE TO ESTABLISH THE NATURE AND SOURCE OF THE MONEY. THE NATURE AND SOURCE OF THE MONEY FOUND DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE WERE THE MATURITY AMOUNTS OF THE FOUR BONDS WHICH WERE PURCHASED BY SRI K.C. KAPADIA ON 1ST OCT., 1998. THEREFORE, SO FAR AS YEA R UNDER CONSIDERATION IS CONCERNED, THE NATURE AND SOURCE ARE FULLY ESTABLISHED. THERE IS NO EVIDENCE TO SHOW THAT THE DEPOSIT IN THE BANK ACCOUNT WAS THE 16 INCOME FROM OTHER SOURCES OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION.' COPY OF SAID JUDGMENT IS ENCLOSED AND MARKED AS ANNEXURE-II HERETO. 25. FROM A PERUSAL OF THE SAID CASE LAW, IT WILL BE SEEN THAT CASE THERE IS A STRIKING SIMILARITY OF FA CTS AS HAVE BEEN DISCUSSED IN PARA 21, 22 & 23 ABOVE. 18.1 AS PER THE ABOVE PARAS, IT IS SEEN THAT THIS I SSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE JUDGMENT O F HON'BLE ALLAHABAD HIGH COURT RENDERED IN THE CASE OF KANCHA N SINGH (SUPRA). IN THAT CASE ALSO, THE ISSUE IN DISPUTE B EFORE THE HIGH COURT WAS REGARDING RESURGENT INDIA BOND OF 10 ,000 US$ EACH WHICH WERE PURCHASED BY SHRI K. C. KAPADIA ON 1 ST OCTOBER, 1998 AND WERE GIFTED BY HIM TO THE ASSESSE E KANCHAN SINGH ON 28/02/2006. THE ASSESSMENT YEAR I NVOLVED BEFORE HON'BLE ALLAHABAD HIGH COURT WAS 2004-05. U NDER THESE FACTS, IT WAS HELD BY HON'BLE ALLAHABAD HIGH COURT THAT THERE IS NO REASON TO DOUBT THE GENUINENESS OF GIFT BY SHRI K. C. KAPADIA TO THE ASSESSEE AND THEREFORE, THE ASSES SEE WAS ABLE TO ESTABLISH THE NATURE AND SOURCE OF THE MONE Y BECAUSE THE SAME WERE THE MATURITY PROCEEDS OF FOUR BONDS P URCHASED BY SHRI K. C. KAPADIA ON 1 ST OCTOBER 1998 AND THEREFORE, NO ADDITION CAN BE MADE IN ASSESSMENT YEAR 2004-05. I N THE PRESENT CASE ALSO, INDIA MILLENNIUM BOND OF US$ 50, 000 WERE GIFTED BY JAYESH ARVIND BHAI PATEL OF DUBAI TO THE ASSESSEE AS GIFT LETTER DATED 18/06/2001. THIS IMD BOND CERTIF ICATE WAS ISSUED BY SBI ON 05/01/2001 IN US$. THIS DATE FALL S IN PREVIOUS YEAR 2000-2001 RELEVANT TO ASSESSMENT YEAR 2001-02 AND THEREFORE, AS PER THIS JUDGMENT OF HON'BLE ALLA HABAD HIGH COURT CITED BY LEARNED A. R. OF THE ASSESSEE, NO AD DITION CAN BE MADE IN THE PRESENT ASSESSMENT YEAR BEING ASSESS MENT YEAR 2002-03. HENCE, RESPECTFULLY FOLLOWING THIS J UDGMENT OF HON'BLE ALLAHABAD HIGH COURT, THIS ADDITION REGARDI NG INDIA MILLENNIUM BOND IS DELETED AND AS A RESULT, THE SEC OND ADDITION OF RS.17,564/- BEING ALLEGED UNDISCLOSED E XPENDITURE OF 7% IN RESPECT OF INDIA MILLENNIUM BOND OF 50,000 US$ EQUAL TO RS.24,50,918/- IS ALSO DELETED. ACCORDING LY GROUND NO. 6 TO 9 ARE ALLOWED. 17 25. ACCORDINGLY, IN LINE WITH THE TRIBUNAL DECISION IN THE CASE OF SMT. SHAILA AGARWAL IN THE PRESENT CASE ALSO, THIS ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE BECAUSE LEARNED DR OF THE REVENUE COUL D NOT SHOW THAT IMD AND RIB ARE DIFFERENT IN NATURE. 26. GROUND NO. 10 IS AS UNDER: 10. BECAUSE THE CIT(A) HAS ERRED IN LAW AND ON FAC TS IN SUSTAINING THE ADDITION OF RS.15,000/- IN THE HANDS OF THE APPELLANT, ON ACCOUNT OF ALLEGED LOW WITHDRAWALS FOR MEETING HOUSEHOLD EXPENSES. 27. IT WAS SUBMITTED BY LEARNED A. R. OF THE ASSESS EE THAT THE ASSESSING OFFICER HAS HELD IN THE ASSESSMENT ORDER THAT FOR A FAMILY OF 9 MEMBERS, HOUSE HOLD WITHDRAWAL SHOWN BY THE ASSESSE E AND HIS FAMILY OF RS.3.62 LAC IS NOT SUFFICIENT. AS PER ASSESSING OF FICER, SUCH HOUSE HOLD WITHDRAWAL SHOULD BE RS.4.50 LAC BUT NO SEPARATE AD DITION WAS MADE BY HIM ON THIS BASIS THAT ADDITION ON ACCOUNT OF SUPPR ESSED INCOME FROM GOPALAYA IS MADE AND THEREFORE, NO SEPARATE ADDITIO N IS MADE FOR LOW HOUSE HOLD WITHDRAWALS. SINCE THE CIT(A) HAS DELET ED THE ADDITION MADE BY ASSESSING OFFICER ON ACCOUNT OF GOPALAYA OF RS.4 80,000/-, CIT(A) HAS HELD THAT AN ADDITION OF RS.15,000/- ON ACCOUNT OF LOW HOUSE HOLD WITHDRAWALS WILL MEET THE ENDS OF JUSTICE. HE SUBM ITTED THAT THERE IS NO BASIS INDICATED BY CIT(A) FOR UPHOLDING THE ADDITIO N OF RS.15,000/- AND THEREFORE, THE SAME SHOULD BE DELETED. LEARNED D. R . OF THE REVENUE SUPPORTED THE ORDER OF LEARNED CIT(A). 28. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE F IND THAT THE ASSESSEE HAS SHOWN HOUSE HOLD WITHDRAWAL OF RS. 3. 62 LACS. THE SAME WAS ESTIMATED BY ASSESSING OFFICER AT RS. 4.50 LAC BUT CIT(A) HAS ALTHOUGH AGREED WITH THE ESTIMATE OF THE A.O. ABOUT HOUSEHOL D EXPENSES OF RS. 4.50 LACS, BUT HE CONFIRMED THE ADDITION OF ONLY RS .15,000/- BY SAYING THAT 18 THE FAMILY HAS MANY EARNING MEMBERS. BUT NEITHER T HE ASSESSING OFFICER NOR THE CIT(A) HAS GIVEN ANY BASIS FOR HOLDING THAT THE HOUSE HOLD WITHDRAWAL SHOWN BY THE ASSESSEE IS NOT SUFFICIENT. HENCE, WE DELETE THIS ADDITION OF RS.15,000/-. THIS GROUND IS ALLOWED. 29. IN THE RESULT, THE APPEAL OF THE ASSESSEE STAND S ALLOWED PARTLY. 30. NOW WE TAKE UP THE APPEAL OF THE ASSESSEE FOR A SSESSMENT YEAR 2005-06 IN I.T.A. NO.348/LKW/2013. 31. GROUND NOS. 1 TO 5 ARE AS UNDER: 1. BECAUSE ON THE FACTS AND CIRCUMSTANCES OF THE C ASE, PARTICULARLY THAT (E) THE APPELLANT COULD NOT HAVE BEEN TREATED T O BE THE PERSON SUBJECTED TO SEARCH UNDER SECTION 132(1 ); AND (F) IN ANY CASE, THE APPELLANT STOOD ASSESSED FOR THE ASSESSMENT YEAR 2002-03 AND THERE BEING NO ASSESSMENT RELATED PROCEEDINGS PENDING FOR THE SAID ASSESSMENT YEAR, THE ASSESSMENT MADE EARLIER COULD NOT BE TREATED TO HAVE ABATED; THE ASSESSING OFFICER WAS NOT VALIDLY VESTED WITH T HE JURISDICTION TO ISSUE NOTICE UNDER SECTION 153A AND MAKE SECOND ASSESSMENT IN PURSUANCE THEREOF. 2. BECAUSE VIEW WHICH IS CONTRARY TO THE PLEADING A S ABOVE, AS HAS BEEN TAKEN BY 'CIT(A)' IS WHOLLY ERRO NEOUS AND ILLEGAL TOO. 3. BECAUSE ON A DUE CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PARTICULARLY THAT (E) THE APPELLANT HAD DULY FILED THE 'RETURN', BY STATI NG THAT THE 'RETURN' FILED EARLIER BE TREATED TO BE THE 'RE TURN' FILED IN COMPLIANCE WITH THE NOTICE UNDER SECTION 1 53A; 19 (F) THE 'RETURN' FILED IN THE SAID MANNER, EVEN IF, THE SAME WAS BELATED, CONSTITUTED 'RETURN FILED' IN COMPLIAN CE WITH THE NOTICE UNDER SECTION 153A; (G) THE 'RETURN' SO FILED BY THE APPELLANT, HAD DULY BE EN TAKEN COGNIZANCE OF BY THE ASSESSING OFFICER; (H) AFTER THE 'RETURN' HAD BEEN FILED IN THE AFORESAID MANNER, THE APPELLANT WAS NOT SERVED WITH ANY QUESTIONNAIRE NOR ANY NOTICE UNDER SECTION 143(2); THE 'CIT(A)' SHOULD HAVE HELD THAT ACIT HAD LOST JU RISDICTION TO MAKE ASSESSMENT IN PURSUANCE OF NOTICE UNDER SECTIO N 153A AND ACCORDINGLY THE ASSESSMENT ORDER DATED 31/12/20 08 WAS VOID ABINITIO. 4. BECAUSE VARIOUS CASE LAWS AS HAVE BEEN REFERRED TO AND RELIED UPON BY THE 'C1T(A)' IN NEGATING THE APP ELLANT'S CONTENTION AS HAS BEEN REITERATED IN GROUND NO.2 HE AREINFORE ARE DISTINGUISHABLE ON FACTS, HAVING NO APPLICATION IN THE INSTANT CASE. 5. BECAUSE IN ANY CASE, NO INCRIMINATING MATERIAL H AVING BEEN FOUND DURING THE COURSE OF SEARCH & SEIZURE AC TION UNDER SECTION 132(1) THAT TOOK PLACE ON 17 TH OCTOBER, 2006, AS PER PARTICULARS GIVEN HEREIN BELOW : S L . NO. PLACES SUBJECTED TO SEARCH WARRANTS IN THE NAMES OF (I) M/S. BANARSI MISHTHAN BHANDAR (P) LTD., 26/72, BIRHANA ROAD, KANPUR 'M/S. BANARASI MISTHAN BHANDAR (P) LTD., S/SHRJ JEEVAN KUMAR AGARWAL, SMT. LALMANI AGARWAL & RAJEEV AGARWAL' (II) M/S. GRS JEWELLERS, 59/44, BIRHANA ROAD, KANPUR 'M/S. GRS JEWELLERS, JEEVAN KUMAR AGARWAL, SMT. SHAILA AGARWAL, RAJEEV AGARWAL & SANJEEV AGARWAL.' (III) 7/130, SWAROOP NAGAR, KANPUR 'M/S. BANARASI MISHTHAN BHANDAR (P) LTD., M/S. GRS JEWELLERS, JIWAN KUMAR AGARWAL, SMT. LALMANI AGARWAL, RAJEEV AGARWAL & SANJEEV AGARWAL.' VARIOUS ADDITIONS AS HAVE BEEN MADE IN THE ASSESSME NT ORDER DATED 31.12.2008 (AS HAVE BEEN SUSTAINED IN TERMS O F THE 20 APPELLATE ORDER DATED 25.02.2013 UNDER APPEAL) WERE LIABLE TO BE DELETED. 32. IT WAS FAIRLY AGREED BY BOTH THE SIDES THAT THE SE GROUNDS ARE IDENTICAL TO THE GROUNDS RAISED BY THE SAME ASSESSE E IN ASSESSMENT YEAR 2001-02 AND ALSO BY THE WIFE OF THE ASSESSEE SMT. S HAILA AGARWAL IN I.T.A. NO.387 AND 352/LKW/2013 AND THESE GROUNDS MAY BE DE CIDED IN THE PRESENT YEAR ALSO IN THE SIMILAR LINE AS IN THE CAS E OF SMT. SHAILA AGARWAL. 33. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE F IND THAT THE ISSUE RAISED BY THE ASSESSEE IN THESE GROUNDS REGARDING N ON-ISSUE OF NOTICE U/S 143 (2) IS DECIDED BY US IN A.Y. 2001 02 AGAINST THE ASSESSEE AS PER PARA NO. 7 ABOVE. THE SECOND ISSUE ABOUT NON FINDIN G OF INCRIMINATING MATERIAL IN SEARCH IS IDENTICAL TO THE ISSUE RAISED IN THE APPEAL OF SMT. SHAILA AGARWAL. IN THE CASE OF SMT. SHAILA AGARWAL , THIS ISSUE WAS DECIDED AGAINST THE ASSESSEE AND THEREFORE, ON SIMILAR LINE , IN THE PRESENT CASE ALSO, THIS ISSUE IS DECIDED AGAINST THE ASSESSEE. FOR THE PURPOSE OF READY REFERENCE, RELEVANT PARA FROM THE TRIBUNAL ORDER IN THE CASE OF SMT. SHAILA AGARWAL IS REPRODUCED BELOW 14. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT IT WAS HELD BY HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF RAJ KUMAR ARORA (SUPRA) THAT THE REASONS GIVEN BY THE T RIBUNAL THAT NO MATERIAL WAS FOUND DURING SEARCH, CANNOT BE SUSTAINED SINCE IT IS HELD BY HON'BLE ALLAHABAD HIG H COURT THAT THE ASSESSING OFFICER HAS THE POWER TO REASSESS THE RETURNS OF THE ASSESSEE NOT ONLY FOR THE UNDISCLOSED INCOME WH ICH WAS FOUND DURING SEARCH BUT ALSO WITH REGARD TO THE MAT ERIAL THAT WAS AVAILABLE AT THE TIME OF ORIGINAL ASSESSMENT. RESPECTFULLY FOLLOWING THIS JUDGMENT OF HON'BLE ALLAHABAD HIGH C OURT, WE HOLD THAT THERE IS NO MERIT IN GROUND NO. 5 AND THE SAME IS REJECTED. 34. ACCORDINGLY GROUNDS NOS. 1 TO 5 ARE REJECTED. 35. GROUNDS NO. 6 TO 9 ARE INTER-CONNECTED, WHICH R EAD AS UNDER: 21 6. BECAUSE THE AUTHORITIES BELOW, ON THE BASIS OF LOOSE PAPER FOUND DURING THE COURSE OF SEARCH AND SEIZURE ACTION, HAVE ERRED IN LAW AND ON FACTS IN HOLDING THAT THE APPELLANT HAD PAID A SUM OF RS.5,00,000/- IN CASH TO ONE SRI ASHOK DAYAL DURING THE FINANCIAL YEAR 2004-05 AND ON THAT BASIS IN MAKING/UPHOLDING THE ADDITION OF RS.5,00,000/- TO THE INCOME OF THE APPELLANT. 7. BECAUSE THE VIEW TAKEN BY THE AUTHORITIES BELOW IN THE YEAR OF APPEAL OF THE SAID SUM, IS BASED ON MIS-REA DING OF THE LOOSE PAPER AND THE ADDITION AS HAD BEEN MADE/SUSTA INED, DESERVES TO BE DELETED. 8. BECAUSE IN ANY CASE AND WITHOUT CAUSING IN ANY MANNER ANY PREJUDICE TO THE PLEAS RAISED IN GROUND NO. 9, THE APPELLANT REITERATES HIS CONTENTION THAT SOURCE OF THE SAID PAYMENT (EVEN AFTER TREATED TO HAVE BEEN MADE DURIN G THE FINANCIAL YEAR 2004-05 RELEVANT TO THE ASSESSMENT Y EAR 2005- 06), STOOD FULLY PROVED FROM FUNDS AVAILABLE WITH T HE APPELLANT AND HIS FAMILY MEMBERS AS PER INFORMATION AVAILABLE ON RECORD AND ACCORDINGLY THE ADDITION MADE/SUSTAINED BY THE AUTHORITIES BELOW IS WHOLLY ERRONEOUS. 9. BECAUSE THE LOOSE PAPER REFERRED TO IN THE ASSES SMENT ORDER MERELY CONTAINS PROJECTION OF EXPENDITURE LIK ELY TO BE INCURRED, WHICH IS ENTIRELY DIFFERENT FROM THE EXPE NSES ACTUALLY INCURRED AND ACCORDINGLY THE, ADDITION OF RS.1,25,0 00/- AS HAD BEEN MADE/SUSTAINED BY THE AUTHORITIES BELOW STANDS VITIATED. 36. LEARNED A. R. OF THE ASSESSEE REITERATED THE SA ME CONTENTIONS WHICH WERE RAISED BEFORE CIT(A) WHEREAS LEARNED D. R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 37. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE F IND THAT THE ASSESSING OFFICER HAS MADE AN ADDITION OF RS.13.50 LAC ON THE BASIS THAT AS PER A HAND WRITTEN SIGNED AGREEMENT BETWEEN THE ASS ESSEE AND SHRI ASHOK DAYAL (PARTNER SUNDER TALKIES) AND SHRI SHAIL ENDRA KUMAR SINGH REGARDING DEAL OF RS.132 LAC, THE ASSESSEE HAS MADE CASH PAYMENT OF RS.5 22 LAC TO SHRI ASHOK DAYAL UP TO 24/07/2004 AND FURTHE R PAYMENT OF RS.10 LAC HAS BEEN MADE BY THE ASSESSEE BY ACCOUNT PAYEE CHEQ UE DATED 23/07/2004 DRAWN ON HDFC BANK AND IN ADDITION TO TH AT, AMOUNT OF RS.1.25 LAC WAS PAID IN CASH AFTER 24/07/2004 TILL THE DATE OF SEARCH AND IN THIS MANNER, TOTAL CASH PAYMENT OF RS.6.25 LAC WAS MADE BY THE ASSESSEE TO SHRI ASHOK DAYAL. THE ASSESSING OFFICER MADE QU ERIES IN THE ASSESSMENT PROCEEDINGS AND IN REPLY, THE ASSESSEE S UBMITTED THAT PAYMENT OF RS.17.25 LAC HAS BEEN MADE BY CHEQUE AND OF RS.6.25 LAC HAS BEEN MADE IN CASH. THE ASSESSING OFFICER HELD THAT ADDITION IS TO BE MADE FOR THE CASH PAYMENT OF RS.6.25 LAC AND REGARDING C HEQUE PAYMENT OF RS.17.25 LAC, IT WAS HELD BY ASSESSING OFFICER THAT THE PAYMENT OF RS.10 LAC BY CHEQUE IS VERIFIABLE FROM THE BANK ACCOUNT O F M/S VRINDAVAN TOWER P. LTD. BUT THE BALANCE PAYMENT OF RS.7.25 LAC CLAI MED TO BE MADE BY THE ASSESSEE BY CHEQUE IS NOT VERIFIABLE. THE ASSESSIN G OFFICER MADE ADDITION OF TOTAL AMOUNT OF RS.13.50 LAC BEING RS.6.25 LAC O N ACCOUNT OF CASH PAYMENT AND RS.7.25 LAC ON ACCOUNT OF UNVERIFIABLE CHEQUE. 38. WHEN THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE CIT(A), THE CIT(A) HAS DELETED THE ADDITION OF RS.7.25 LAC PAID BY WAY OF CHEQUE BUT CONFIRMED THE ADDITION OF RS.6.25 LAC ON ACCOUNT OF CASH PAYMENT. NOW THE ASSESSEE IS IN FURTHER APPEAL BEFORE US FOR THE ADDITION OF RS.6.25 LAC UPHELD BY CIT(A). 39. WE FIND THAT IT IS NOTED BY CIT(A) IN PARA 7.3 OF HIS ORDER THAT THIS WAS THE SUBMISSION BEFORE THE ASSESSING OFFICER THA T CASH PAYMENT TO SHRI ASHOK DAYAL WAS MADE OUT OF CASH AVAILABLE WITH FAM ILY MEMBERS. BEFORE CIT(A), THE ASSESSEE HAS SUBMITTED COPY OF CASH BOO K OF THE ASSESSEE AND COPY OF CASH BOOK OF SHRI JEEVAN KUMAR AGARWAL (HUF ) WHICH SHOWED THAT ON THE DATE OF TRANSACTION I.E. ON 24/07/2004, THE CASH AVAILABLE WITH THE ASSESSEE WAS RS.5,34,145/- AND WITH SHRI JEEVAN KUM AR AGARWAL (HUF) 23 RS.2LAC TOTAL RS.7,34,145/-. THE SAID CASH BOOKS A RE AVAILABLE IN THE PAPER BOOK ALSO ON PAGES 35 TO 43 AND 44 TO 46 RESPECTIVE LY. AS PER THE SAME, THE CASH IN HAND AVAILABLE ON 24/07/2004 IN THE CAS H BOOK OF THE ASSESSEE WAS RS.5,34,145/-. BUT ON SUBSEQUENT DATES, THE CA SH BALANCE AS PER CASH BOOK HAS FALLEN AND THE MINIMUM BALANCE WAS RS .3,95,885/- ON 03/03/2005 AS CAN BE SEEN ON PAGE NO. 43 OF THE PAP ER BOOK. IN THE CASH OF HUF ALSO, THE BALANCE HAS GONE DOWN. UNDER THESE FACTS, THE ASSESSEE DOES NOT DESERVE ANY BENEFIT ON THIS ACCOUNT BECAUS E, THE CASH BALANCE HAS FALLEN DOWN ON LATER DATES AND THEREFORE, IF TH E SAME CASH WAS USED FOR PAYING RS. 6.25 LACS, THEN FROM WHERE THE SUBSE QUENT PAYMENTS WERE MADE AS NOTED IN THE CASH BOOKS. MOREOVER, EVEN FOR THE LOWEST BALANCE IN CASH BOOKS AFTER SEARCH DATE, THE ASSESSEE SAYS THAT THIS MUCH CASH WAS AVAILABLE WITH HIM ON THAT DATE AFTER THE SEARC H DATE. THEN HOW IT CAN BE ACCEPTED THAT THE SAME CASH WAS USED TO PAY RS. 6.25 LACS BEFORE SEARCH DATE. HENCE, THIS GROUND IS REJECTED. 40. GROUND NO. 10 IS AS UNDER: 10. BECAUSE THE 'CIT(A)' HAS ERRED IN LAW AND ON FACTS IN SUSTAINING THE ADDITION OF RS.20,000/- IN THE HANDS OF THE APPELLANT ON ACCOUNT OF ALLEGED 'LOW WITHDRAWALS' F OR MEETING HOUSEHOLD EXPENSES. 41. IT WAS SUBMITTED BY LEARNED A. R. OF THE ASSESS EE THAT THE ASSESSING OFFICER HAS HELD IN THE ASSESSMENT ORDER THAT FOR A FAMILY OF 11 MEMBERS, HOUSE HOLD WITHDRAWAL SHOWN BY THE ASSESSE E AND HIS FAMILY OF RS.4.90 LAC IS NOT SUFFICIENT. AS PER ASSESSING OF FICER, SUCH HOUSE HOLD WITHDRAWAL SHOULD BE RS.6 LAC BUT NO SEPARATE ADDIT ION WAS MADE BY HIM ON THIS BASIS THAT ADDITION ON ACCOUNT OF SUPPRESSE D INCOME FROM GOPALAYA IS MADE AND THEREFORE, NO SEPARATE ADDITION IS MADE FOR LOW HOUSE HOLD WITHDRAWALS. SINCE THE CIT(A) HAS DELETED THE ADDI TION MADE BY ASSESSING 24 OFFICER ON ACCOUNT OF GOPALAYA OF RS.4,64,310/-, CI T(A) HAS HELD THAT AN ADDITION OF RS.20,000/- ON ACCOUNT OF LOW HOUSE HOL D WITHDRAWALS WILL MEET THE ENDS OF JUSTICE. HE SUBMITTED THAT THERE IS NO BASIS INDICATED BY CIT(A) FOR UPHOLDING ADDITION OF RS.20,000/- AND TH EREFORE, THE SAME SHOULD BE DELETED. 42. LEARNED D. R. OF THE REVENUE SUPPORTED THE ORDE R OF LEARNED CIT(A). 43. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE F IND THAT THE ASSESSEE HAS SHOWN HOUSE HOLD WITHDRAWAL OF RS. 4. 90 LACS. THE SAME WAS ESTIMATED BY ASSESSING OFFICER AT RS. 6.00 LAC BUT CIT(A) HAS ALTHOUGH AGREED WITH THE ESTIMATE OF THE A.O. ABOUT HOUSEHOL D EXPENSES OF RS. 6.00 LACS, BUT HE CONFIRMED THE ADDITION OF ONLY RS .15,000/- BY SAYING THAT THE FAMILY HAS MANY EARNING AND TAX PAYING MEMBERS. BUT NEITHER THE ASSESSING OFFICER NOR THE CIT(A) HAS GIVEN ANY BASI S FOR HOLDING THAT THE HOUSE HOLD WITHDRAWAL SHOWN BY THE ASSESSEE IS NOT SUFFICIENT. HENCE, WE DELETE THIS ADDITION OF RS.20,000/-. THIS GROUN D IS ALLOWED. 44. NOW WE TAKE UP THE APPEAL OF THE REVENUE FOR AS SESSMENT YEAR 2005-06 IN I.T.A. NO.535/LKW/2013. 45. GROUND NO. 1 IS AS UNDER: 45. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FA CTS IN DELETING THE ADDITION OF RS.4,64,310/- ON ACCOUNT O F RECEIPTS FROM GUEST HOUSE WITHOUT LOOKING INTO THE MERITS AS WELL AS DETAILED DISCUSSION IN THE ASSESSMENT ORDER AND CAT EGORICAL FINDING MADE BY THE AO THEREIN. 46. LEARNED D. R. OF THE REVENUE SUPPORTED THE ORDE R OF ASSESSING OFFICER WHEREAS LEARNED A. R. OF THE ASSESSEE SUPPO RTED THE ORDER OF LEARNED CIT(A). 25 47. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE F IND THAT A CLEAR FINDING HAS BEEN GIVEN BY CIT(A) THAT THIS ADDITION WAS MADE BY THE ASSESSING OFFICER ON THE BASIS OF SUSPICION, CONJEC TURES AND SURMISES AND THIS CATEGORICAL FINDING OF CIT(A) COULD NOT BE CON TROVERTED BY LEARNED D. R. OF THE REVENUE. WE ALSO FIND THAT THIS FINDING IS ALSO GIVEN BY LEARNED CIT(A) THAT EVEN AS PER THE SEIZED MATERIAL, RECEIP T OF RS.1.50 LAC IS SEEN. THIS RECEIPT OF RS.1.50 LAC HAS BEEN DULY SHOWN BY THE ASSESSEE IN ITS INCOME BUT THE ASSESSING OFFICER HAS STATED THAT TH E RECEIPTS FROM GOPALAYA HAS TO BE CONSIDERED AT RS.6 LAC WITHOUT G IVING ANY BASIS FOR SUCH ESTIMATION. CONSIDERING THESE FACTS, WE FIND NO REASON TO INTERFERE IN THE ORDER OF CIT(A). GROUND NO. 1 IS REJECTED. 48. GROUND NO. 2 IS AS UNDER: 2. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FAC TS IN DELETING THE ADDITION OF RS.4,67,921/- ON ACCOUNT O F INTEREST ACCRUED FROM ICICI BOND BY IGNORING THE FACTS AND M ATERIAL BROUGHT ON RECORD BY THE AO. 49. LEARNED D. R. OF THE REVENUE SUPPORTED THE ORDE R OF ASSESSING OFFICER WHEREAS LEARNED A. R. OF THE ASSESSEE SUPPO RTED THE ORDER OF LEARNED CIT(A). 50. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE F IND THAT THIS ADDITION HAS BEEN DELETED BY LEARNED CIT(A) ON THE BASIS THAT AS PER NOTIFICATION NO.F.4(9)-W & M OF 2003 DATED 13/03/20 03 REPORTED IN [2003] 260 ITR 306 (STATUTE), INTEREST ON 6.5% SAVINGS BON DS 2003 IS TAX EXEMPT. IN VIEW OF THIS FACTUAL AND LEGAL POSITION , NO INTERFERENCE IS CALLED FOR IN THE ORDER OF CIT(A) ON THIS ISSUE. ACCORDIN GLY, GROUND NO. 2 IS REJECTED. 26 51. GROUND NO. 3 IS AS UNDER: 3. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FAC TS IN DELETING THE ADDITION OF RS.7,25,000/- OUT OF RS.13 ,50,000/- ON ACCOUNT OF CASH PAYMENT BY ADMITTING THE ADDITIO NAL EVIDENCE PRODUCED BEFORE HIM DURING THE COURSE OF A PPELLATE PROCEEDINGS IN VIOLATION OF RULE 46A OF THE IT RULE 1962 AND WITHOUT AFFORDING ANY OPPORTUNITY TO THE AO OR CALL ING FOR A REMAND REPORT. 52. LEARNED D. R. OF THE REVENUE SUPPORTED THE ORDE R OF ASSESSING OFFICER WHEREAS LEARNED A. R. OF THE ASSESSEE SUPPO RTED THE ORDER OF LEARNED CIT(A). 53. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE F IND THAT AS PER PARA 7.3 OF HIS ORDER, IT IS HELD BY CIT(A) THAT AS PER THE DETAILS SUBMITTED, PAYMENT OF RS.7.25 LAC HAS APPARENTLY BEEN MADE BY CHEQUE BY SMT. LAXMI AGARWAL (VIDE CHEQUE DATED 14/07/2005). THE CIT(A) HELD THAT THE ASSESSING OFFICER MAY VERIFY THE SAME AND AFTER VER IFICATION, DELETE THE ADDITION OF RS.7.25 LACS. THE OBJECTION OF LEARNED D. R. OF THE REVENUE WAS THAT IT AMOUNTS TO SET ASIDE, WHICH IS NOT WITH IN THE POWER OF CIT(A). WE FIND FORCE IN THE SUBMISSIONS OF LEARNED D. R. O F THE REVENUE THAT CIT(A) SHOULD NOT HAVE GIVEN SUCH DIRECTION TO ASSE SSING OFFICER FOR MAKING VERIFICATION AND DELETING THE ADDITION AND I NSTEAD OF THIS, HE SHOULD HAVE OBTAINED REMAND REPORT AND SHOULD HAVE DECIDED THE ISSUE. BUT CONSIDERING THIS FACT THAT ALREADY MORE THAN 2 YEA RS HAVE PASSED AFTER THE DATE OF ORDER OF CIT(A) BEING 05/03/2013, NO US EFUL PURPOSE WILL BE SERVED BY OBTAINING REMAND REPORT FROM THE ASSESSIN G OFFICER BY TRIBUNAL OR RESTORING THE MATTER BACK TO CIT(A) FOR FRESH DE CISION AFTER OBTAINING REMAND REPORT FROM THE ASSESSING OFFICER AND THEREF ORE, UNDER THESE FACTS, WE HOLD THAT THE ASSESSING OFFICER SHOULD VERIFY TH IS CONTENTION OF THE ASSESSEE THAT THIS PAYMENT HAS APPARENTLY BEEN MADE BY CHEQUE BY SMT. LAXMI AGARWAL VIDE CHEQUE DATED 14/07/2005 AND IF T HIS CONTENTION IS 27 FOUND CORRECT THEN THIS ADDITION SHOULD BE DELETED. ACCORDINGLY, GROUND NO. 3 STANDS DISPOSED OF. 54. GROUND NO. 4 IS AS UNDER: 4. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FAC TS IN DELETING THE ADDITION OF RS. 18,000/- ON ACCOUNT OF INCOME FROM HOUSE PROPERTY WITHOUT APPRECIATING THE DETAIL ED FACTS AND MATERIAL BROUGHT ON RECORD BY THE AO AND WITHOU T ASSIGNING ANY LOGICAL REASON. 55. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE F IND THAT AS PER THE FACTS NOTED BY CIT(A) ON PAGE NO. 12 & 13 OF HIS OR DER, THE ASSESSEE WAS OWNING THE PROPERTY SITUATED AT 128, MALL ROAD, KAN PUR IN CO-OWNERSHIP WITH HIS WIFE SMT. SHAILA AGARWAL AND TWO SONS NAME LY RAJEEV AGARWAL &SANJEEV AGARWAL. THE RESPECTIVE SHARES OF INCOME OF THE THREE CO- OWNERS ARE REGULARLY SHOWN IN THEIR RESPECTIVE RETU RNS AND THE SAME ARE BEING ACCEPTED ALSO. ON THE SAME BASIS, THE ASSESS EE HAD SHOWN THE INCOME FALLING TO HIS 1/4 TH SHARE AT RS.10,970/- SUBJECT TO STATUTORY DEDUCTION OF RS.3,291/-, RESULTING INTO A TAXABLE I NCOME OF RS.7,679/-. AS AGAINST THIS, THE ASSESSING OFFICER ASSESSED THE IN COME FROM PROPERTY AT RS.18,000/- ON ACCOUNT OF THIS AND VARIOUS OTHER PR OPERTIES. REGARDING OTHER PROPERTIES, IT WAS SUBMITTED THAT THE PROPERT Y SITUATED AT 7/130, SWAROOP NAGAR, KANPUR IS IN SELF-OCCUPATION AND THE REFORE, NO INCOME IS ASSESSABLE IN THE HANDS OF THE OWNER. THE SECOND P ROPERTY AT ARYA NAGAR WAS AN OPEN PLOT OF LAND AND THE PROPERTY CONSTRUCT ED THEREON WAS SOLD AND INCOME EARNED ON SUCH SALE WAS SHOWN AS LONG TE RM CAPITAL GAIN AND THEREFORE, NO INCOME IN RESPECT OF THIS PROPERT Y IS LIABLE TO BE TAXED. THE THIRD PROPERTY IS GENERALGANJ PROPERTY. AS PE R THE ASSESSEE, THIS IS VERY SMALL AND DILAPIDATED PROPERTY NOT EVEN IN POS SESSION OF THE ASSESSEE. IT IS ALSO SUBMITTED BY THE ASSESSEE THA T BECAUSE OF ENCROACHMENT, THE PROPERTY IS NOT EVEN IDENTIFIABLE AT THE SITE AND NO 28 INCOME HAS BEEN REALIZED NOR REALIZABLE IN RELATIO N TO THE SAID PROPERTY AND THEREFORE, NO INCOME IS ASSESSABLE U/S 22 OF TH E ACT. THE CIT(A) HAS ACCEPTED THESE CLAIMS OF THE ASSESSEE AND DELETED T HE ADDITION MADE BY THE ASSESSING OFFICER. 56. LEARNED D. R. OF THE REVENUE COULD NOT SHOW THA T THESE CONTENTIONS OF THE ASSESSEE ACCEPTED BY CIT(A) ARE NOT CORRECT. UNDER THESE FACTS, WE FIND NO REASON TO INTERFERE IN THE ORDER OF CIT(A). ACCORDINGLY, GROUND NO. 4 IS ALSO REJECTED. 57. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. 58. IN THE COMBINED RESULT, ALL THE THREE APPEALS O F THE ASSESSEE ARE PARTLY ALLOWED AND THE ONLY APPEAL OF THE REVENUE I S DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:20/11/2015 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR