ACIT, Haridwar V. M/s. Neeraj Clinic (P) Ltd., Rishikesh

ITA 3633/DEL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97889 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 31-08-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 11-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJNA SENIOR
• Assessee Lawyers: V K TULSIYAN
• Keywords: Income from undisclosed sources
• Section: 143(3); 147; 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E : NEW DELHI) BEFORE SHRI A.T. VARKEY, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER ITA NO.3633/DEL./2012 (ASSESSMENT YEAR : 2003-04) ACIT, CIRCLE, VS. M/S. NEERAJ CLINIC (P) LIMITED, HARDWAR. 13/2, SADANAND MARG, RISHIKESH. (PAN : AAACN4730B) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI V.K. TULSIYAN, CA REVENUE BY : SHRI P. DAM KANUNJNA, SENIOR DR DATE OF HEARING : 02.09.2015 DATE OF PRONOUNCEMENT : 20 .11.2015 O R D E R PER A.T. VARKEY, JUDICIAL MEMBER : THIS APPEAL, AT THE INSTANCE OF THE REVENUE, IS DIR ECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-I , DEHRADUN DATED 31.03.2006 FOR THE ASSESSMENT YEAR 2003-04. 2. THE FACTS OF THE CASE AS EMANATING FROM THE CIT (A) ORDER ARE THAT THE ASSESSEE COMPANY WAS ENGAGED IN THE BUSINESS OF RUNNING CLINIC FOR THE TREATMENT OF EPILEPSY AND OTHER DISORDERS. THE ASS ESSEE HAD SHOWN TOTAL RECEIPT AMOUNTING TO RS.11,24,57,934/- IN ITS CASE AND IN THE CASE OF ITS ITA NO3633 /DEL./2012 2 SISTER CONCERN, B.S. GUPTA CHARITABLE SOCIETY THROU GH POST OFFICE. THE BREAK-UP OF THE RECEIPT AS PER THE ASSESSEE WAS AS UNDER :- NAME RECEIPT TOTAL MONEY ORDER VPP B.S. GUPTA CHARITABLE SOCIETY 411354 50811210 51222 564 NEERAJ CLINIC PVT. LTD. 378320 60857050 61235370 GRAND TOTAL 112457934 THE AO WAS IN RECEIPT OF INFORMATION FROM THE SENIO R POST MASTER (HSG)- I, MUKHYA DAK GHAR, RISHIKESH THAT FROM THE ACCOUNT OF THE ASSESSEE COMPANY MAINTAINED IN THE POST OFFICE, PAYMENT OF R S.11,61,30,008/- WAS MADE TO MR. R.K. GUPTA, MANAGING DIRECTOR (MD) OF T HE ASSESSEE COMPANY AND FROM THE SISTER CONCERN DURING THE PREV IOUS YEAR. A MONTHLY BREAK-UP OF THE AFORESAID PAYMENT HAS BEEN GIVEN BY THE CIT (A) IN PAGE NOS.1 & 2 OF THE IMPUGNED ORDER. SINCE THERE WAS A DIFFERENCE OF RS.36,72,074/- BETWEEN THE TWO FIGURES OF RECEIPTS (I.E. THAT FURNISHED BY THE ASSESSEE AND THAT FURNISHED BY THE POST MASTER) , THE AO ASKED THE ASSESSEE COMPANY TO EXPLAIN THE DIFFERENCE. PURSUA NT TO THE SAID QUERY OF THE AO, THE ASSESSEE REPLIED THAT DR. R.K. GUPTA, T HE MD NEVER RECEIVED MONEY DIRECTLY FROM ANY OF THE CUSTOMERS AND THE ME DICINE IS DISPATCHED AS VPP AND THE REMITTANCE IS COLLECTED BY THE POSTA L AUTHORITIES FROM THE CUSTOMERS AND DEPOSITED IN THE ASSESSEES POST OFFI CE ACCOUNT AND THAT OF THE SISTER CONCERN; AND SEPARATE RECEIPTS AS ISSUED BY THE POST OFFICE (PO) DAILY WERE AVAILABLE WITH THE ASSESSEE IN WHICH THE NAME OF THE CONCERN ITA NO3633 /DEL./2012 3 HAS BEEN MENTIONED SEPARATELY; AND IN ORDER TO CORR OBORATE THE AFORESAID MODUS OPERANDI, THE ASSESSEE PRODUCED FEW RECEIPTS ISSUED BY THE POST OFFICE DAILY BEFORE THE AO. ACCORDING TO THE ASSES SEE, SEPARATE PO RECEIPTS WERE ISSUED BY THE POST MASTER ON EACH AND EVERY DAY FOR THE COLLECTION IN BOTH THE CONCERNS SEPARATELY AND SEPA RATE BOOKS OF ACCOUNTS FOR THE TWO CONCERNS WERE THUS MAINTAINED SEPARATEL Y BY THE ASSESSEE AND THE SISTER CONCERN. THE ASSESSEE POINTED OUT TO TH E AO THAT INFORMATION SUPPLIED DIRECTLY BY THE POST OFFICE TO THE AO WAS ON MONTHLY BASIS, WHEREAS, THE INFORMATION SUBMITTED BY THE ASSESSEE TO THE AO WAS COMPUTED ON THE BASIS OF DAILY RECEIPTS WHICH HAS B EEN CERTIFIED BY THE POST OFFICE AND CORROBORATED BY THE RECEIPT REGISTE R MAINTAINED BY BOTH THE CONCERNS. 2.1 HOWEVER, THE AO WAS NOT SATISFIED WITH THE AFOR ESAID EXPLANATION OF THE ASSESSEE AND ACCORDING TO HIM, MR. R.K. GUPTA, THE MD OF THE ASSESSEE COMPANY HAD RECEIVED THE MONEY ON BEHALF OF THE ASS ESSEE AND ITS SISTER CONCERN AND OBSERVED THAT THE EXPLANATION OF THE AS SESSEE COMPANY TO EXPLAIN THE DIFFERENCE OF RS.36,72,074/-, WAS NOT A CCEPTABLE AND IT DID NOT MAKE ANY DIFFERENCE WHETHER THE RECEIPT WAS COMPUTE D ON DAILY BASIS OR MONTHLY BASIS. THUS, WHEN THERE WAS A DIFFERENCE I N THE GROSS RECEIPT OF RS.36,72,074/- AND SINCE THE ASSESSEE FAILED TO REC ONCILE THE SAID DIFFERENCE IN THE SAID AMOUNT WAS TREATED AS UNACCOUNTED INCOM E OF THE ASSESSEE COMPANY AND IT WAS ADDED TO THE INCOME OF THE ASSES SEE. ITA NO3633 /DEL./2012 4 2.2 AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEF ORE THE CIT (A), WHO TOOK NOTE OF THE FACT THAT THE TWO FIGURES OF RECEI PTS I.E. ONE WHICH WAS MAINTAINED BY THE ASSESSEE AND THE OTHER WHICH WAS SUPPLIED BY THE POST OFFICE DIRECTLY TO THE AO WERE FROM THE SAME SOURCE I.E. POST OFFICE, RISHIKESH. THE LD. CIT (A) NOTED THAT THE ASSESSEE S FIGURE WAS BASED ON THE DAILY CERTIFICATE OF PAYMENT ISSUED BY THE VERY SAME POST OFFICE WHICH HAD COMMUNICATED TO THE AO THE FIGURES COMPUTED BAS ED ON MONTHLY BASIS. TAKING NOTE OF THIS DISCREPANCY, THE LD. CI T (A) DIRECTED THE AO TO SEEK CLARIFICATION FROM THE POST OFFICE AND TO FURN ISH REPORT TO HIM. FURTHER, IT HAD BEEN TAKEN NOTE BY THE LD. CIT (A) THAT THE AO, PURSUANT TO THE SAID DIRECTION OF THE CIT (A), HAD RECORDED THE STATEMENT OF SHRI LALIT MOHAN JOSHI, THE POST MASTER AT THAT TIME ON 25.02. 2009 U/S 131 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER THE ACT). THE GIST OF THE STATEMENT THUS RECORDED HAD BEEN EXTRACTED BY THE LD. CIT (A) IN PAGE 3 OF THE IMPUGNED ORDER WHICH READS AS UNDER :- THE INFORMATION SUPPLIED BY THE POST OFFICE TO THE AO MUST HAVE BEEN BASED ON THE RECORD AVAILABLE AT THAT TIME. AS REGA RDS THE DISCREPANCY OF RS.36,72,074/, NO CLARIFICATION CAN BE GIVEN WITHOU T REFERENCE TO THE RECORDS SINCE A LONG TIME HAS PASSED. THE OLD RECOR DS CANNOT BE MADE AVAILABLE NOW BECAUSE THEY HAVE BEEN WEEDED OUT AS PER THE DEPARTMENTAL RULES. SINCE THE INFORMATION WAS MADE AVAILABLE ON THE BASIS OF CASH BOOK AND MONEY ORDERS PAYMENT BOOK, IT COULD NOT BE BASE D ON WRONG FACTS. BUT NO DOCUMENTARY EVIDENCE CAN BE MADE AVAILABLE T O SUBSTANTIATE IT BECAUSE THE SAME HAS BEEN WEEDED OUT. 2.3 IN HIS REPORT TO THE LD. CIT (A), THE AO TOOK N OTE OF THE FACT THAT SINCE THE FINANCIAL YEAR CONCERNED WAS 2002-03 (AY 2003-04), ACCORDING ITA NO3633 /DEL./2012 5 TO HIM, THE INFORMATION MIGHT HAVE BEEN COMPUTERIZE D AND SO THE STATEMENT OF THE POST MASTER THAT THE DOCUMENTS COU LD HAVE BEEN WEEDED OUT WAS NOT ACCEPTABLE TO THE AO, SO HE CONFRONTED THE POST MASTER ON THIS ASPECT AND ASKED HIM TO FURNISH CLARIFICATION ON TH IS ASPECT I.E. WHETHER THE INFORMATION IN RESPECT TO THE ASSESSEE SOUGHT FOR W AS AVAILABLE ON THE COMPUTER OF THE POST OFFICE, RISHIKESH. THOUGH THE POST MASTER ASSURED TO THE AO THAT HE WOULD FURNISH APPROPRIATE CLARIFICAT ION IN THIS RESPECT WITHIN TWO WEEKS AFTER CONSULTING SENIOR SUPERINTEN DENT OF POST, DEHRADUN, HOWEVER, HE DID NOT TURN UP BEFORE HIM. SO THE LD. CIT (A) NOTED THAT AFTER THE SAID ASSURANCE BY THE POST MAS TER, THREE YEARS HAD LAPSED AND NO UPDATE ON THIS INFORMATION HAD COME B ACK TO HIS OFFICE FROM THE AO. IN THE SAID CIRCUMSTANCES, THE LD. CIT (A) THOUGHT IT PRUDENT TO GO AHEAD WITH THE APPEAL AND ADJUDICATE THE ISSUE BEFO RE HIM. 2.4 THEREAFTER, WE FIND THAT THE LD. CIT (A) HAS AD JUDICATED THE ISSUE HOLDING AS UNDER :- 1.3 THIRD PARTY INFORMATION IS IMPORTANT FOR THE P URPOSES OF ASSESSMENT. BUT, UNLESS IT IS SUBSTANTIATED WITH R EFERENCE TO THE RELEVANT DOCUMENTARY EVIDENCE, IT HAS LITTLE EVIDENTIARY VAL UE. NO DOUBT, IF THE SOURCE OF THE INFORMATION IS A GOVERNMENT ORGANISAT ION LIKE A POST OFFICE, IT CARRIES GREATER WEIGHT. BUT, IF THE CORRECTNESS OF THAT INFORMATION IS CONTRADICTED BY ANOTHER PIECE OF INFORMATION EMANAT ING FROM THE SAME SOURCE, ITS VERACITY COMES UNDER A CLOUD. IN THIS C ONNECTION, IT IS ALSO IMPORTANT TO NOTE THAT THE INFORMATION SUPPLIED BY THE POST OFFICE TO THE AO WAS MONTHLY COMPILATION OF ITS TRANSACTIONS WITH THE ASSESSEE WHICH WERE DONE ON DAY-TO-DAY BASIS. THUS, IT WAS A SECON DARY DOCUMENT AND THERE COULD BE POSTING OR COMPILATION OR TOTALING E RROR THEREIN. THE CERTIFICATES ISSUED BY THE SAME POST OFFICE TO THE ASSESSEE, ON THE OTHER HAND, CONSTITUTE PRIMARY EVIDENCE IN SO FAR AS THEY WERE ISSUED ON DAY-TO- BASIS IN THE REGULAR COURSE OF ITS BUSINESS AND EAC H SUCH CERTIFICATE WAS DULY SIGNED AND STAMPED BY THE POST MASTER. HENCE, IN TERMS OF ITA NO3633 /DEL./2012 6 EVIDENTIARY VALUE, THE DOCUMENTS SUBMITTED BY THE A SSESSEE CARRY GREATER WEIGHT THAN THE DOCUMENT SUPPLIED BY THE POST OFFIC E TO THE AO. 1.4 SECONDLY, EVEN THOUGH THERE WERE TWO RECIPIENTS , I.E. THE ASSESSEE AND ITS SISTER CONCERN, THE POST OFFICE FURNISHED A COMBINED MONTHLY BREAK- UP OF DISBURSEMENT. EVEN IF, FOR ARGUMENT SAKE, IT WERE CONTENDED THAT THE FIGURE SUPPLIED BY THE POST OFFICE TO THE AO WAS CO RRECT, THERE IS NO BASIS TO HOLD THAT THE EXTRA AMOUNT CAME TO THE ASSESSEE AND NOT TO THE SISTER CONCERN. THE SAME AO ASSESSED BOTH THE CONCERNS IF HE DID NOT TAKE AN ADVERSE VIEW IN THE CASE OF THE SISTER CONCERN, IT IS DIFFICULT TO APPRECIATE HOW HE COULD DO SO IN THIS CASE. IT IS ALSO NOTICED THAT THE POST OFFICE MENTIONED THAT THE PAYMENTS HAD BEEN MADE TO MR. R. K. GUPTA ON BEHALF OF SAID TWO CONCERN IN THE CASE OF B.S.GUPTA CHARIT ABLE SOCIETY, THE AO ACCEPTED THE ASSESSEE'S FIGURE. IN THIS CASE, THE A SSESSEE'S FIGURE NEEDS TO BE ACCEPTED BECAUSE IT IS DULY SUBSTANTIATED WITH R EFERENCE TO THE DAILY CERTIFICATES OF PAYMENT FROM THE POST OFFICE. ON TH E OTHER HAND, THE INFORMATION SENT BY THE POST OFFICE TO THE AO IS NO T ONLY UNSUBSTANTIATED BUT ALSO AMORPHOUS. IN VIEW OF THIS, IT IS HELD THA T THE ADDITION MADE BY THE AO IS NOT JUSTIFIED AND THE SAME IT DELETED. IF DEF INITE EVIDENCE SUBSTANTIATING THE INFORMATION SUPPLIED TO THE AO I S RECEIVED FROM THE POST OFFICE, IT SHOULD BE HELD THAT THE AMOUNT WAS RECEI VED AND APPROPRIATED BY MR. GUPTA AND SHOULD BE TAXED IN HIS HANDS ONLY AS HIS INCOME. IF THAT SITUATION ARISES, THE AO MAY INITIATE PROCEEDING U/ S 147 OF THE I.T. ACT IN HIS CASE IN ACCORDANCE WITH THE PROVISION OF SECTIO N 150 R.W.S.153(3) OF THE I.T. ACT. AS FAR AS THIS CASE IS CONCERNED, THE RE NO JUSTIFICATION FOR THE ADDITION. IN VIEW OF THE DISCUSSION ABOVE, THE ADDI TION IS DELETED. 3. AGGRIEVED BY THE SAID DECISION OF THE LD. CIT (A ), THE REVENUE IS IN APPEAL BEFORE US BY TAKING THE FOLLOWING GROUNDS :- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.36,72,074/- MADE BY THE ASSESSING OF FICER IGNORING THE FACTS AND EVIDENCE CONGREGATED DURING THE ASSESSMEN T PROCEEDINGS U/S 143(3) OF THE INCOME TAX ACT, 1961 GATHERED. 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS BY NOT ISSUING DIRECTION U/S 50(1) TO THE AO IN THE LIGHT OF HIS OWN OBSERVATION TO THE EFFECT THAT INCOME CAN BE ADDED IN THE HANDS OF DR. R.K. GUPTA (RECEIVER OF SUCH AMOUNT). 3. THE ORDER OF THE LD. CIT(A) BE SET ASIDE AND TH AT OF THE AO BE RESTORED. ITA NO3633 /DEL./2012 7 4. THE LD. DR WHILE ASSAILING THE IMPUGNED ORDER OF THE LD. CIT (A), WONDERED AS TO HOW THERE CAN BE SUCH A DISCREPANCY TO THE TUNE OF RS.36,72,074/- BEING VARIATION IN THE ACCOUNTS MAIN TAINED BY THE ASSESSEE AND THAT FURNISHED BY THE POST OFFICE. THE LD. DR CONTENDED THAT WHETHER THE MONEY IS ACCOUNTED FOR DAILY OR MONTHLY BASIS, IT DOES NOT MAKE A DIFFERENCE WHEN CALCULATING THE YEARLY RECEIPT. AC CORDING TO HIM, THE ASSESSEE HAD MENTIONED THAT DR. GUPTA DOES NOT RECE IVE MONEY DIRECTLY BUT THE POST MASTERS REPORT CLEARLY SUGGESTS THAT MONE Y IS COLLECTED BY DR. GUPTA ON BEHALF OF BOTH I.E. M/S. NEERAJ CLINIC (P) LIMITED (ASSESSEE) AND DR. B.S. GUPTA MEDICAL CHARITABLE SOCIETY (SISTER C ONCERN). SO, THEREFORE, ACCORDING TO HIM, THE ASSESSEES DEFENCE THAT THE A SSESSEE MAINTAINS THE BOOKS OF ACCOUNTS ON THE BASIS OF DAILY RECEIPTS RE CEIVED FROM THE POST OFFICE CANNOT BE ACCEPTED SINCE THERE IS INFORMATIO N DIRECTLY FROM THE POST OFFICER ITSELF STATING THAT THERE IS A DIFFERENCE O F RS.36,72,074/-. ACCORDING TO HIM, THEREFORE, THE AO CORRECTLY ADDED THIS AMOU NT AS UNACCOUNTED INCOME IN THE HANDS OF THE ASSESSEE. THE LD. DR CO NTENDED THAT THE LD. CIT (A) ERRED IN DELETING THE SAID ADDITION SIMPLY BECA USE THE POST MASTER DID NOT TURN UP TO GIVE CERTAIN CLARIFICATION REGARDING DATA STORED IN COMPUTER CANNOT BE A GROUND TO DELETE THE ADDITION MADE BY T HE AO. THEREFORE, THE LD. DR WANTS US TO REVERSE THE ORDER OF THE LD. CIT (A) AND RESTORE THE ORDER OF THE AO. ITA NO3633 /DEL./2012 8 5. ON THE OTHER HAND, LD. AR CONTENDED THAT THE ASS ESSEE IS A PRIVATE LIMITED COMPANY AND ITS SISTER CONCERN IS A SOCIETY ARE INVOLVED IN TREATING PATIENTS SUFFERING FROM EPILEPSY. ACCORDING TO THE LD. AR, THE FINANCIALLY WEAK PATIENTS ARE TREATED AT A DISCOUNTED RATE THRO UGH THE SOCIETY, WHEREAS, OTHER PATIENTS WHO CAN AFFORD TREATMENT ARE TREATED THROUGH THE ASSESSEE COMPANY. ACCORDING TO THE LD. AR, FIRST THE PATIEN TS SUFFERING FROM EPILEPSY NEED TO BE THOROUGHLY CHECKED BY THE DOCTO RS AND THEREAFTER, MEDICINES ARE PRESCRIBED FOR 3 5 YEARS WHICH THE PATIENTS HAVE TO CONSUME WITHOUT A BREAK. SINCE THE PATIENTS ARE FR OM ALL AROUND INDIA, THE MEDICINES ARE SENT BY POST THROUGH VPP AND THE AMOU NT COLLECTED IS REMITTED THROUGH THE POST OFFICE BY MONEY ORDERS. IT WAS POINTED OUT BY THE LD. AR THAT THE DAILY RECEIPTS OF MONEY ORDER A RE ISSUED BY THE PO SEPARATELY FOR THE ASSESSEE AND SOCIETY. THE ASSES SEE EXPLAINED TO THE AO THE MODUS OPERANDI, AS STATED ABOVE, AND EXPLAINED THAT THE MONEY ORDERS RECEIVED BY THE ASSESSEE AND THE SISTER CONCERN ARE SEPARATELY ACCOUNTED IN ITS BOOKS AND THE SAME ARE DAILY CERTIFIED BY THE P OST MASTER. HOWEVER, THE AO WAS NOT SATISFIED WITH THE EXPLANATION AND W ITHOUT REJECTING THE AUDITED BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSE E ON THE BASIS OF THE SAID CERTIFICATE ISSUED BY THE POST OFFICE, THE AO HAS MADE THE ADDITION OF RS.36,72,074/-. ACCORDING TO HIM, THE AO ERRED IN MAKING THE ADDITION OF RS.36,72,074/- WHICH IS BASED ON INFORMATION ONLY F ROM THE POST OFFICE WHICH IS NOTHING BUT A MIXED UP RECEIPTS FOR BOTH T HE CONCERNS. THE LD AR ITA NO3633 /DEL./2012 9 POINTED OUT THAT LD. CIT (A), DURING THE APPELLATE PROCEEDINGS, HAD DIRECTED THE AO TO TAKE EVIDENCE FROM THE POST MAST ER TO CLARIFY THE ISSUE AS TO WHETHER THE POST MASTER HAS SUBMITTED THAT TH E RECORDS PERTAINING TO THE RELEVANT ASSESSMENT YEAR FOR WHICH THE POST MAS TER REPLIED THAT THE SAID DOCUMENTS HAVE BEEN ALL WEEDED OUT. WHEN THE AO AS KED POST MASTER TO CHECK WHETHER THE DATA REGARDING THE ASSESSEE ARE C OMPUTERIZED, THE POST MASTER THOUGH ASSURED THE AO TO REPORT BACK WITHIN TWO WEEKS, DID NOT SURFACE FOR THE NEXT THREE YEARS WHICH MADE THE LD. CIT (A) TO DECIDE THE APPEAL WITHOUT WAITING FOR ANY REPORT FROM THE POST MASTER. ACCORDING TO THE LD. AR, THE LD. CIT (A) RIGHTLY APPRECIATED THE CONTENTION OF THE ASSESSEE AND HAS DELETED THE SAID ADDITION. ACCORD ING TO HIM, JUST BECAUSE INFORMATION HAS BEEN GIVEN BY THE POST OFFICE, THE ADDITION CANNOT BE MADE WHEN THE SAME POST OFFICE HAS ISSUED CERTIFICATES B ASED ON WHICH THE ASSESSEE HAS CALCULATED ITS INCOME. IN THE ABSENCE OF ANY EVIDENCE TO SUPPORT THE IMPUGNED ADDITION, THE LD. CIT (A) HAS RIGHTLY DELETED THE SAID ADDITION. 5.1 THE LD. AR SUBMITTED THAT THE CIT (A) HAS PASSE D AN ORDER U/S 150 READ WITH SECTION 153 (3) WHEREIN IT HAS BEEN SPECI FICALLY OBSERVED THAT IN CASE IF THERE IS ANY INFORMATION FROM THE POST OFFI CE THAT THE SAID AMOUNT HAS BEEN RECEIVED BUT APPROPRIATED BY DR. GUPTA THE N THE SAID INCOME SHOULD BE TAXED IN HIS HANDS. THEREFORE, ACCORDING TO THE LD. AR, LD. CIT (A) HAS PROTECTED THE INTEREST OF THE REVENUE ALSO BY PASSING THE SAID ORDER. ITA NO3633 /DEL./2012 10 IN THE SAID CIRCUMSTANCES, THE LD. AR DOES NOT WANT US TO INTERFERE WITH THE ORDER PASSED BY THE LD. CIT (A) 6. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MAT ERIAL ON RECORD. WE FIND THAT THE ASSESSEE COMPANY IS ENGAGED IN TRE ATMENT OF PATIENTS SUFFERING FROM EPILEPSY. THE ASSESSEE COMPANY HAS A SISTER CONCERN KNOWN AS B.S. GUPTA MEDICAL CHARITABLE SOCIETY WHIC H IS FOR POOR PEOPLE SUFFERING FROM THE SAME DISEASE. WE FIND THAT ONCE PATIENT SUFFERING FROM EPILEPSY CONTACTS THEM AND A THOROUGH CHECK UP IS D ONE BY THE DOCTORS AND THEN THEY ADVICE THE PATIENTS EITHER TO TAKE ME DICINE FOR 3 TO 5 YEARS DEPENDING UPON THE SERIOUSNESS OF THE DISEASE, WHIC H THE PATIENTS HAVE TO CONSUME WITHOUT A BREAK. THE ASSESSEE COMPANY CATE RS FOR PATIENTS WHO CAN AFFORD PAYMENT FOR THE MEDICINES WITHOUT ANY SU BSIDY. SINCE PATIENTS ARE RESIDING ALL AROUND THE COUNTRY THE MEDICINES A RE SENT BY VPP TO THEM AND THEY PAY THE COST BY MONEY ORDER WHICH GETS CRE DITED IN THE POST OFFICE ACCOUNT AND ON THE VERY SAME DAY, A CERTIFICATE OF THE AMOUNT CREDITED DAILY IS CERTIFIED AND ISSUED BY THE POST MASTER TO THE ASSESSEE COMPANY LIKEWISE TO THE SISTER CONCERN ALSO. WE TAKE NOTE OF THE FACT THAT THE AO GOT THE INFORMATION REGARDING THE AMOUNT CREDITED O N MONTHLY BASIS WHEREAS THE ASSESSEE RECEIVED THE SAME INFORMATION ON DAILY BASIS AND ACCORDINGLY, THE LD. CIT (A) ASKED THE AO TO SEEK C LARIFICATION FROM THE POST OFFICE IN THIS REGARD AND ACCORDINGLY, THE AO RECORDED THE STATEMENT OF SHRI LALIT MOHAN JOSHI, THE POST MASTER ON 25.02 .2009 U/S 131 OF THE ITA NO3633 /DEL./2012 11 ACT. WE FURTHER TAKE NOTE THE SAID POST MASTER SUBM ISSION THAT, THE INFORMATION SUPPLIED BY THE POST OFFICE TO THE AO M UST HAVE BEEN BASED ON THE RECORD AVAILABLE AT THAT TIME. AS REGARDS THE D ISCREPANCY OF RS.36,72,074/-, NO CLARIFICATION CAN BE GIVEN WITHO UT REFERENCE TO THE RECORDS SINCE A LONG TIME HAS PASSED. THE OLD RECOR DS CANNOT BE MADE AVAILABLE NOW BECAUSE THEY HAVE BEEN WEEDED OUT AS PER THE DEPARTMENTAL RULES. SINCE THE INFORMATION WAS MADE AVAILABLE ON THE BASIS OF CASH BOOK AND MONEY ORDERS PAYMENT BOOK, IT COULD NOT BE BASE D ON WRONG FACTS. BUT NO DOCUMENTARY EVIDENCE CAN BE MADE AVAILABLE TO SU BSTANTIATE IT BECAUSE THE SAME HAS BEEN WEEDED OUT. WE TAKE NOTE OF THE FAT THAT THE AO TRIED TO GET THE CLARIFICATION ON THE ASPECT OF WEEDING O UT AND ASKED THE POST MASTER TO PRODUCE THE INFORMATION AVAILABLE FROM TH E COMPUTER OF THE POST OFFICE, RISHIKESH. HOWEVER, WE FIND THAT THE POST MASTER DID NOT FURNISH WITH THE SAID INFORMATION AND SO THE AO COULD NOT G ET ANY DOCUMENTARY EVIDENCE IN THIS REGARD. WE FIND THAT THE LD. CIT (A) RIGHTLY OBSERVED THAT THIRD PARTY INFORMATION IS IMPORTANT FOR THE PURPOS ES OF ASSESSMENT BUT IT SHOULD BE CORROBORATED BY RELEVANT DOCUMENTARY EVID ENCES OTHERWISE IT CANNOT BE ACTED UPON TO SADDLE THE ASSESSEE WITH AD DITIONS. THOUGH THE SOURCE OF THE INFORMATION IS A GOVERNMENT ORGANIZAT ION, LIKE IN THIS CASE IS A POST OFFICE, THE CORRECTNESS OF THAT INFORMATION IS COUNTERED BY THE ASSESSEE WITH BY ANOTHER PIECE OF EVIDENCE EMANATIN G FROM THE VERY SAME SOURCE, THEN THE POST MASTER IS DUTY BOUND TO ESTAB LISH THAT THE INFORMATION ITA NO3633 /DEL./2012 12 SUPPLIED BY HIM IS CORRECT BY PRODUCTION OF DOCUMEN TS FROM WHERE HE HAS SUPPLIED THE INFORMATION TO AO AT THE FIRST PLACE. IN THIS REGARD, THE LD. CIT (A) HAS NOTED THAT THE INFORMATION SUPPLIED BY THE POST OFFICE TO THE AO WAS ON MONTHLY BASIS WHEREAS IT WAS SUPPLIED TO THE ASSESSEE ON DAY- TO-DAY BASIS. THUS, THE CONTENTION OF THE ASSESSEE THAT THERE CAN BE POSTING OR COMPILATION OR TOTALING ERROR CANNOT BE RULED OU T UNLESS THE AO HAD CALLED FOR THE RECORDS FROM THE POST OFFICE AND VER IFIED THE SAME. WITHOUT DOING THE SAID EXERCISE, THE AO OUGHT NOT TO HAVE M ADE THE ADDITION SIMPLY BY RELYING ON THE INFORMATION GIVEN BY THE POST OFF ICE, WHEN THE ASSESSEE ALSO HAS DOCUMENTARY EVIDENCE CERTIFIED BY THE POST MASTER TO SUPPORT ITS CLAIM. WE FURTHER TAKE NOTE OF THE FACT THAT THE P OST MASTER ISSUED THE CERTIFICATES DULY SIGNED AND STAMPED ON DAY-TO-DAY BASIS IN THE REGULAR COURSE OF ITS BUSINESS AND WHICH WAS THE BASIS OF A UDITED BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE. WE FIND FORCE IN THE CONTENTION OF THE LD. AR THAT WITHOUT REJECTING THE BOOKS OF ACCO UNTS MAINTAINED BY THE ASSESSEE COMPANY, THE ADDITION MADE SIMPLY ON THE B ASIS OF INFORMATION FROM THE POST OFFICE WITHOUT BEING CORROBORATED OR VERIFIED CANNOT BE ACCEPTED. WE FURTHER FIND THAT FROM A PERUSAL OF THE STATEMENT OF FACTS FILED BY THE AO ALONG WITH THE APPEAL, VIDE LETTER DATED 17.02.2005, THE POST OFFICE HAS BROUGHT TO THE NOTICE OF THE AO THA T THE DOCUMENTS FOR A PERIOD FROM 1999 TO MARCH 2002 HAS BEEN WEEDED OUT. IT WAS CLEARLY MENTIONED THAT DOCUMENTS PERTAINING TO PERIOD FROM APRIL 2003 TO JULY ITA NO3633 /DEL./2012 13 2004 COMPRISING OF 1353 PAGES HAS BEEN TAKEN AWAY B Y THE INVESTIGATION OFFICER, C.O. DALANWALA, DEHRADUN ON 04.09.2004. S O, FROM THE SAID LETTER, WE CAN SAFELY INFER THAT RECORDS PERTAINING TO THE RELEVANT ASSESSMENT YEAR I.E. 2003-04 (FINANCIAL YEAR 2002-03) WAS AVAI LABLE WITH THE CONCERNED POST OFFICE. WE FIND THAT THE AO HAS NOT TAKEN ANY PAINS TO CALL FOR THE RECORDS BEFORE HE PASSED THE ASSESSMENT ORD ER DATED 31.03.2006 WHICH HE COULD HAVE EASILY DONE. FURTHER, WE FIND T HAT PURSUANT TO THE LD. CIT (A)S SEEKING REMAND REPORT, THE AO SIMPLY STAT ED VIDE LETTER DATED 24.11.2008 THAT RECORDS OF FY 2002-03 ARE NOT AVAIL ABLE. WHEN INSISTED BY THE LD. CIT (A) VIDE LETTER DATED 27.02.2009 A C OPY OF STATEMENT ON OATH OF SHRI LALIT MOHAN JOSHI, THE POST MASTER WAS RECO RDED ON 25.02.2009 WHICH HAS BEEN INCORPORATED VERBATIM AT PAGE 3 OF T HE LD. CIT (A)S ORDER WHEREIN HE SIMPLY STATES THAT THE INFORMATION GIVEN BY THEM MUST HAVE BEEN BASED ON THE BASIS OF CASH BOOK AND MONEY ORDE R PAYMENT BOOK AND COULD NOT BE BASED ON WRONG FACTS AND THE DOCUMENTS HAVE BEEN WEEDED OUT. SO, WE FIND THAT THE AO, DURING THE ORIGINAL ASSESSMENT, COULD HAVE SUMMONED THE DOCUMENTS AND COULD HAVE VERIFIED THE VERACITY OF THE STATEMENT OF THE ASSESSEE QUA THE INFORMATION SUPPL IED BY THE POST OFFICE. WITHOUT DOING SO, THE AO COULD NOT HAVE MADE THE AD DITION. WE FIND THAT THOUGH THE DOCUMENTS FOR THE NEXT ASSESSMENT YEAR WERE TAKEN AWAY BY THE INVESTIGATION OFFICER, C.O., DALANWALA, DEHRADU N FOR THE PERIOD APRIL 2003 TO JULY 2004 COMPRISING OF 1353 PAGES, WE FIND THAT THE AO IN THE ITA NO3633 /DEL./2012 14 NEXT ASSESSMENT YEAR I.E. 2004-05 HAS NOT MADE ANY ADDITION AND HAS ACCEPTED THE RETURN FILED BY THE ASSESSEE. IN VIEW OF THE ABOVE, WE HOLD THAT THE LD. CIT (A) HAS RIGHTLY DELETED THE ADDITION AN D WE CONFIRM THE ORDER OF THE LD. CIT (A). 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN OPEN COURT ON THIS 20 TH DAY OF NOVEMBER, 2015. SD/- SD/- (O.P. KANT) (A.T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 20 TH DAY OF NOVEMBER, 2015 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-I, DEHRADUN. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.