The Asstt. Commissioner of Income-tax, Jalandhar V. Sh. Surinder Pal Gandhi, Nawanshahr

ITA 370/ASR/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0584 (ITAT-AMRITSAR)
• Duration Of Justice: 3 year(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-07-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 29-06-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 05-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHAWANI SHANKAR
• Assessee Lawyers: BHAGAT
• Keywords: Unexplained cash credit; Unexplained investment; Document seized; Source of fund; Additional evidence; Non compliance; Documents seized
• Section: 80C; 153A; 133(6); 132; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR (CAMP AT JALANDHA R ) BEFORE SH. A.D.JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A NOS.192 TO194 & 370(ASR)/2013 ASSESSMENT YEARS: 2007-08 TO 2010-11 DY. CIT, CENTRAL CIRCLE-II, JALANDHAR. VS. SH. SURINDER PAL GANDHI, B-2/357, BHATT. COLONY, CHANDIGARH ROAD, NAWANSHAHAR. PAN:AFBPK5235K (APPELLANT) (RESPONDENT) CROSS OBJECTION NOS.24 TO 25 (ASR)/2013 ARISING OUT OF ITA NO.193 & 1 94 (ASR)/2013 ASSESSMENT YEARS: 2008-09 TO 2009-10 SH. SURINDER PAL GANDHI, B-2/357, BHATT. COLONY, CHANDIGARH ROAD, NAWANSHAHAR. PAN:AFBPK5235K VS. DY. CIT, CENTRAL CIRCLE-II, JALANDHAR.. (CROSS OBJECTORS) (RESPONDENT) APPELLANT BY: SH. BHA WANI SHANKAR (DR) RESPONDENT BY: SH. M.R.BHAGAT & SH. RAJINDER KUMAR CHOPRA (CA) DATE OF HEARING: 29.06. 2016 DATE OF PRONOUNCEMENT : 01.07.2016 ORDER PER T.S.KAPOOR (AM): THIS IS A BUNCH OF FOUR APPEALS FILED BY REVENUE AG AINST THE SEPARATE ORDERS OF LEARNED CIT(A), LUDHIANA, DATED 11.01.2013 FOR ASST. YEARS: 2007-08 TO 2009-10 AND DATED 21.03.2013 FOR ASST. YEAR 2010-11. ITA NOS.192 TO 194 & 370 (ASR)/2013 ASST. YEARS: 2007-08 TO 2010-11 2 2. THE ASSESSEE HAS ALSO FILED CROSS OBJECTIONS TO APPEAL FILED BY REVENUE IN ITA 193 & 194(ASR)/2013 FOR ASST. YEAR: 2008-09 TO 2009-10. 3. AT THE OUTSET, THE LEARNED AR STATED THAT HE WIL L NOT BE PRESSING THE CROSS OBJECTIONS, THEREFORE, SAME MAY BE DISMIS SED AS NOT PRESSED. 4. THE LEARNED DR HAD NO OBJECTION TO THE WITHDRAWA L OF CROSS OBJECTIONS, THEREFORE, THE CROSS OBJECTIONS FILED B Y ASSESSEE ARE DISMISSED AS WITHDRAWN. 5. ALL THESE APPEALS CONTAIN COMMON ISSUES AND THES E APPEALS WERE HEARD TOGETHER, THEREFORE, FOR THE SAKE OF CONVENIE NCE A COMMON AND CONSOLIDATE ORDER IS BEING PASSED. 6. THE BRIEF FACTS OF THE CASES ARE THAT A SEARCH U /S 132 OF I.T. ACT WAS CONDUCTED IN THE CASE OF ASSESSEE ON 18.02.2010 AND CASES OF THE ASSESSEE WERE REOPENED U/S 153A OF THE ACT. THE ASS ESSEE DURING THE ASSESSMENT PROCEEDINGS DID NOT APPEAR BEFORE THE AS SESSING OFFICER, THEREFORE, ASSESSING OFFICER COMPLETED THE ASSESSME NT U/S 144 OF THE ACT ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. THE V ARIOUS ADDITIONS MADE BY ASSESSING OFFICER IN THESE YEARS ARE SUMMARIZED AS UNDER: ASSESSMENT YEAR: 2007-08 1. INCOME FROM GENERAL STORE AND CEMENT STORE ON THE BASIS OF PROVISION OF SEC.44AF RS.3,58,166/- 2. INCOME FROM BRICK KILN RS.15,55,000/- 3. UNEXPLAINED CREDITS IN BANK ACCOUNT NO.1552508202 RS.27,31,559/- 4. UNEXPLAINED CREDITS IN BANK RS.1,70,000/- ITA NOS.192 TO 194 & 370 (ASR)/2013 ASST. YEARS: 2007-08 TO 2010-11 3 ACCOUNT NO.700243 (NEW A/C NO.1552517987 5. INCOME FROM OTHER SOURCES RS.958/- ASSESSMENT YEAR: 2008-09 1. INCOME FROM GENERAL STORE AND CEMENT STORE ON THE BASIS OF PROVISION OF SEC.44AF RS.3,61,820/- 2. INCOME FROM BRICK KILN RS.31,10,000/- 3. UNEXPLAINED CREDITS IN BANK ACCOUNT NO.1552508202. RS.4,45,000/- 4. UNEXPLAINED CREDITS IN BANK ACCOUNT NO.700243 (NEW A/C NO.1552517987) RS.1,85,000/- 5. INCOME FROM OTHER SOURCES RS.40,000/- ASSESSMENT YEAR: 2009-10 1. INCOME FROM GENERAL STORE AND CEMENT STORE ON THE BASIS OF PROVISION OF SEC.44AF RS.3,75,000/- 2. INCOME FROM BRICK KILN RS.31,10,000/- 3. UNEXPLAINED CREDITS IN BANK ACCOUNT NO.1552508202 RS.49,49,206/- 4. UNEXPLAINED CREDITS IN BANK ACCOUNT NO.700243 (NEW A/C NO.1552517987 RS.3,80,127/- ASSESSMENT YEAR: 2010-11 1. INCOME FROM GENERAL STORE AND CEMENT STORE ON THE BASIS OF PROVISION OF SEC.44AF RS.3,75,000/- 2. INCOME FROM BRICK KILN RS.31,10,000/- 3. UNEXPLAINED CREDITS IN BANK ACCOUNT NO.1552508202 RS.20,79,757/- 4. UNEXPLAINED CREDITS IN BANK ACCOUNT NO.700243 (NEW A/C NO.15525117987) RS.3,80,127/- 5. UNEXPLAINED JEWELLERY RS.2,22,340/- 6. UNEXPLAINED INVESTMENT RS.4,86,25,000/- 7. AGGRIEVED WITH THE ASSESSMENT ORDERS, THE AS SESSEE FILED APPEALS BEFORE LEARNED CIT(A) AND SUBMITTED VARIOUS SUBMISS IONS. DURING ITA NOS.192 TO 194 & 370 (ASR)/2013 ASST. YEARS: 2007-08 TO 2010-11 4 APPELLATE PROCEEDINGS THE ASSESSEE ALSO FILED ADDIT IONAL EVIDENCES UNDER RULE-46A. THE CIT(A) SENT THE SUBMISSIONS ALONG WIT H ADDITIONAL EVIDENCES TO ASSESSING OFFICER WHO OBJECTED TO THE ADMISSION OF ADDITIONAL EVIDENCES. HOWEVER, THE LEARNED CIT(A) A CCEPTED THE ADDITIONAL EVIDENCES AND ALSO DECIDED THE ISSUES PARTLY IN FAV OUR OF ASSESSEE BY HOLDING AS UNDER: IN ITA NO.192(ASR)/2013 FOR A.Y.2007-08 6. SINCE THE ASSESSMENT ORDER HAD BEEN PASSED U/S 144, AND THE ASSESSING OFFICER HAD ELABORATED THE REASONS FOR DO ING SO, THE ARS CLAIM OF NOT GETTING REASONABLE OPPORTUNITY TO EXPLAIN HI S CASE HAD TO BE EXAMINED IN THE GIVEN FACTS OF THE CASE. IT IS APPA RENT THAT THE ASSESSING OFFICER HAD ISSUED NUMBER OF NOTICES IN PURSUANCE O F THE CENTRALIZATION ORDER PASSED BY THE CIT DATED 10/08/2010. HOWEVER, THE SAID ORDER OF CENTRALIZATION HAD BEEN CANCELLED BY THE CIT ON 28/ 10/2011 MEANING THEREBY THAT THE ASSESSING OFFICER DID NOT HAVE THE JURISDICTION FOR THE INTERVENING PERIOD. THEREFORE, VARIOUS NOTICES ISSU ED AND THEIR COMPLIANCE/NON COMPLIANCE HAS NO LEGAL VALIDITY ESP ECIALLY WHEN THE ASSESSEE HAD CHALLENGED THE JURISDICTION OF THE ASS ESSING OFFICER ON THE BASIS OF ERRONEOUS CENTRALIZATION ORDER. THE CIT FI NALLY PASSED THE JURISDICTION ORDER CENTRALIZING THE CASES BACK TO T HE ASSESSING OFFICER WITH EFFECT FROM 14/11/2011. IT IS CLEAR FROM THE PERUSA L OF THE RECORDS THAT VERY LIMITED OPPORTUNITY TO EXPLAIN THE CASE HAD BE EN PROVIDED TO THE ASSESSEE AFTER 14.11.2011 I.E., THE DATE FROM WHICH THE ASSESSING OFFICER WAS CONFERRED VALID JURISDICTION TO ASSESS. IT IS A LSO SEEN THAT MOST OF THE NOTICES EVEN PRIOR TO 14.11.2011 HAD BEEN SERVED BY AFFIXTURE AND THE ASSESSEES CLAIM THAT SUCH NOTICES WERE NOT RECEIVE D BY HIM IS ALSO NOT INVALID IN THE CIRCUMSTANCES. IT WOULD BE FAIR TO C ONCLUDE THAT A REASONABLE OPPORTUNITY MUST BE PROVIDED AT THIS STAGE FOR VARI OUS ISSUES TO BE EXAMINED AFRESH. THEREFORE, THE ASSESSING OFFICER W AS DIRECTED TO CALL FOR THE BOOKS OF ACCOUNTS SO AS TO EXAMINE THE ISSUES P ERTAINING TO GROSS PROFIT RATE AS WELL AS SHARE CAPITAL INTRODUCTION AND EXPE NSES DEBITED TO P&L ACCOUNT. 7. THE ASSESSING OFFICER FURTHER COMMENTED THAT THE BOOKS OF ACCOUNTS OF THE ASSESSEE FOR ASST. YEARS 2004-05 TO 2010-11 WERE PRODUCED AND WERE EXAMINED ALONG WITH RELEVANT BALA NCE SHEET/OTHER DOCUMENTS. THE ASSESSING OFFICER WITH REFERENCE TO THE ADDITION U/S 44AF SUBMITTED THAT THE FIGURES OF PURCHASES, SALE AND O THER EXPENSES TALLIED ITA NOS.192 TO 194 & 370 (ASR)/2013 ASST. YEARS: 2007-08 TO 2010-11 5 WITH THE BOOKS OF ACCOUNTS EXAMINED. IN THE CIRCUMS TANCES IT BECOME APPARENT THAT THE PROVISIONS OF SECTION 44AF ARE NO T ATTRACTED IN THE CASE OF THE ASSESSEE AS NEITHER TURNOVER IS BELOW THE SP ECIFY LIMIT NOR THERE IS NO MAINTENANCE OF BOOKS OF ACCOUNTS. IT IS ALSO A M ATTER OF FACT THAT NO DISCREPANCY IN THE BOOKS OF ACCOUNT HAS BEEN POINTE D OUT NOR ANYTHING HAS BEEN FOUND DURING THE COURSE OF SEARCH OPERATION TO WARRANT ANY DISALLOWANCE/ADDITION. THEREFORE, THE ADDITION MADE BY THE ASSESSING OFFICER U/S 44AF IS DIRECTED TO BE DELETED. 8. THE GROUND OF APPEAL AT SR. NO.4 PERTAINS T O AN ADDITION OF RS.1,70,000 WHICH HAS BEEN MADE BY THE ASSESSING OF FICER ON THE GROUND THAT AS PER STATEMENT OF LOAN ACCOUNT NO.700243 WIT H CENTRAL BANK OF INDIA, NAWANSHAHAR THE ASSESSEE HAD MADE REPAYMENT OF RS.1,70,000/- AND NO EVIDENCE REGARDING THE SOURCE HAD BEEN FILED . THE APPELLANT WITH REGARD TO THIS ADDITION SUBMITTED DURING APPELLATE PROCEEDINGS THAT IT HAD CREDIT BALANCE OF RS.9 LACS AS ON 1.4.2006 WITH M/S K.C. SOCIAL WELFARE TRUST AND THE REPAYMENT WAS DONE DIRECTLY BY THE SA ID TRUST BY DEBITING MY ACCOUNT ON FOLLOWING DATES:- 27.6.2006 RS.70,000/- 12.09.2006 RS.50,000/- 23.11.2006 RS.50,000/- THE ASSESSING OFFICER DURING THE COURSE OF REMAND P ROCEEDING HAS VERIFIED THE SUBMISSIONS OF THE APPELLANT AND THESE HAVE BEE N FOUND TO BE FACTUALLY CORRECT. THEREFORE, THE ADDITION IS DIRECTED TO BE DELETED. 9. THE GROUND OF APPEAL AT SR. NO.5 PERTAINS TO AN ADDITION OF RS.15,55,000/- WHICH HAS BEEN MADE BY THE ASSESSING OFFICER ON ACCOUNT OF ALLEGED UNDISCLOSED INCOME FROM BRICK KILN. THE ASSESSING OFFICER IN THIS REGARD HAS OBSERVED THAT THE ASSESSEE DURING COURSE OF SEARCH STATED THAT HE HAD TAKEN A BRICK KILN IN THE YEAR 2007 ON AN AN NUAL LEASE OF RS.1,25,000/-. HE FURTHER STATED THAT ANOTHER BRICK KILN HAD BEEN TAKEN ON LEASE FROM ONE SHRI BHAGAT SINGH OF RS.1,20,000/- D URING THE YEAR 2008 AND THE INCOME FROM THESE BUSINESS HAD NOT BEEN DIS CLOSED IN THE RETURN OF INCOME. THE ASSESSING OFFICER ALSO REFERRED TO PAGE 1-5 OF ANNEXURE A-4 SEIZED FROM THE ASSESSEES RESIDENCE WHICH CONTAINE D THE FOLLOWING DESCRIPTION OF STOCK WITH SBK BRICK KILN. DATE STOCK OF BRICK KILN 30.04.2009 3275800/- 30.05.2009 3985800/- 30.06.2009 3515400/- 30.06.2009 3871200/- ITA NOS.192 TO 194 & 370 (ASR)/2013 ASST. YEARS: 2007-08 TO 2010-11 6 THE SAID PAPER WAS EXPLAINED AS HAVING BEEN WRITTEN FOR THE PURPOSE OF OBTAINING BANK CREDIT LIMIT. THE ASSESSING OFFICER COMBINED TWO STATEMENTS OF THE ASSESSEE OF RUNNING A BRICK KLIN AND THE ABOVE MENTIONED RECORDING TO HOLD THAT SUCH BUSINESS WAS KEPT OUT SIDE THE BOOKS OF ACCOUNTS. THE ASSESSING OFFICER PROCEEDED TO WORK OUT PRODUCTION ON THE BASIS OF MONTHLY STOCK STATEMENT AS REPRODUC ED ABOVE SO AS TO WORK OUT THE PROFIT OFRS.15,55,000/-. 10. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE AR OF THE APPELLANT SUBMITTED HIS ARGUMENTS ON THE ISSUE AS UNDER:- THIS ADDITION HAS BEEN DISCUSSED IN PARA 7 OF THE ASSESSMENT ORDER. THE INFORMATION ON THE ON THE BASIS OF WHICH ADDITION HAD BEEN MADE RELATE TO FINANCIAL YEAR 2009-10, WHERE AS THE RELEVANT PREVIOUS YEAR IS FROM 01.04.2006 TO 31.03.2007. THE STATEMENT ARE NOT SIGNED BY ANY ONE. THE PURPOSE FOR WHICH THE STATEMENTS WERE PREP ARED ARE NOT KNOWN. THOSE STATEMENTS, COULD BE EVEN FOR PURPOSE OF BANK . EVEN NO EVIDENCE OF SALE OF ANY GOOD WAS FOUND. THE LD. ASSESSING OFFIC ER HAD REFERRED TO STATEMENT RECORDED AT THE TIME OF SEARCH U/S 132 OF THE ACT. EVEN IN THAT STATEMENT THE APPELLANT MENTIONED THAT HE HAD TAKEN A BRICK KILN ON LEASE IN THE YEAR 2007, I.E. IT CAN BE INTERPRETED SAFELY THAT THE ASSESSEE HAD NOT DONE ANY BUSINESS IN HIS INDIVIDUAL CAPACITY DURING THE RELEVANT PREVIOUS YEAR. MORE THAT BRICK KLIN WAS OPERATED IN PARTNERS HIP. A PHOTO COPY OF THE PARTNERSHIP DEED IS ENCLOSED. IT IS CLEAR THAT THE APPELLANT WANTED TO DO BUSINESS OF BRICK KILN IN PARTNERSHIP WITH OTHER PE RSONS IN SUBSEQUENT YEAR. AS REGARD THE SECOND BRICK KILN THAT WAS TAKE N ON LEASE. IT WAS A PARTNERSHIP CONCERN. THE APPLICATION FOR RENEWAL OF LICENSE OF BRICK KILN WAS REJECTED. IN THE ORDER OF REJECTION OF BRICK KI LN LICENSE, IT IS CLEARLY MENTIONED THAT SURINDER PAL GANDHI WAS ONE OF THE P ARTNERS. IN SUCH CIRCUMSTANCES THE LEARNED ASSESSING OFFICER GRAVELY ERRED TO HOLD THAT THE ASSESSEE HAD DONE THE BUSINESS OF BRICK KILN AND ES TIMATED INCOME AR RS.15,55,000/-. THE ADDITION IS WITHOUT ANY BASIS. IT IS PRAYED THAT THE ADDITION MAY KINDLY BE DELETED. PHOTOCOPIES OF THE DOCUMENTS PROVIDING THAT THE APPELLANT WAS ONLY ONE OF THE PARTNERS. EV EN IF, FOR THE SAKE OF ARGUMENT IT IS PRESUMED THAT BRICK KILN BUSINESS WA S DOE, INCOME FROM THAT BUSINESS COULD BE ASSESSED IN THE HANDS OF FIR M OR ASSOCIATION OF PERSONS. THE ASSESSING OFFICER OF CENTRAL CIRCLE-II , WAS NOT HAVING JURISDICTION TO ASSESS ETH PERSON WHO MIGHT HAVE AS PER THE PRESUMPTION OF THE ASSESSING OFFICER, DONE BUSINESS OF BRICK KILN. IT IS AGAIN PRAYED THAT THIS ADDITION MAY KINDLY BE DELETE. 11. THE SUBMISSIONS OF THE APPELLANT WERE SENT TO T HE ASSESSING OFFICER AND THE ASSESSING OFFICER ONLY REITERATED THE OBSER VATION AS CONTAINED IN THE ASSESSMENT ORDER. 12. I HAVE CONSIDERED THE BASIS OF ADDITION MADE BY THE ASSESSING OFFICER AND THE ARGUMENTS OF THE AR ON THE ISSUE. I T IS QUIET APPARENT THAT ITA NOS.192 TO 194 & 370 (ASR)/2013 ASST. YEARS: 2007-08 TO 2010-11 7 THE BUSINESS OF BRICK KILN HAD BEEN CARRIED OUT BY THE ASSESSEE AS STATED BY HIM DURING THE COURSE OF STATEMENT RECORDED AT T HE TIME OF SEARCH OPERATION. FURTHER THERE IS EVIDENCE OF THE STOCK A VAILABLE AT THE END OF MONTH DURING THE FINANCIAL YEAR 2009-10. HOWEVER, T HE ASSESSEE DURING THE COURSE OF APPELLANT PROCEEDINGS HAS BROUGHT ON RECORD EVIDENCE IN THE FORM OF PARTNERSHIP DEED EXECUTED IN THE MONTHS OF JANUARY 2007 WHICH CLEARLY SHOWS THAT THE IMPUGNED BUSINESS HAD BEEN C ARRIED OUT BY A PARTNERSHIP FIRM WITH THE NAME AND STYLE M/S SURIND RA BRICK KILN AND THE SALES TAX RETURN FOR VARIOUS YEARS HAD ALSO BEEN FI LED AS A PARTNERSHIP FIRM ONLY. THE SAID EVIDENCE HAS NOT BEEN CREATED AFRESH WHICH IS EVIDENT FROM THE NATURE OF DOCUMENTS PRODUCED. THE ASSESSING OFF ICER DURING THE COURSE OF APPELLATE PROCEEDINGS DID NOT BRING ON RECORD A CONTRADICTORY EVIDENCE TO SHOW THAT THE NAME OF THE APPELLANT IN THIS REGARD WAS FACTUALLY INCORRECT. THEREFORE, THE INCOME EMANATING OUT OF THE BUSINESS OF BRICK KILN WHICH VERY CLEARLY HAD BEEN CARRIED OUT BY THE FIRM CAN N OT BE ASSESSED IN THE HANDS OF THE ASSESSEE AS A PROPRIETOR. EVEN OTHERWI SE NO EVIDENCE IN THE YEAR UNDER CONSIDERATION HAS BEEN BROUGHT ON RECORD EVEN WITH RESPECT TO THE BUSINESS OF THE FIRM AS THE STOCK POSITION FOUN D DURING THE COURSE OF SEARCH IS WITH RESPECT TO THE ASSTT. YEAR 2010-11 O NLY. HOWEVER, THE ASSESSING OFFICER ON CAREFUL PERUSAL OF THE FACTS O F THE CASE MAY PROCEED TO REOPEN SPECIFIC YEARS IN RESPECT OF THE FIRM SO AS TO BRING TO TAX ANY INCOME THAT WOULD HAVE ESCAPED ASSESSMENT. THE ADDITION MA DE IN THE HANDS OF THE ASSESSEE IS THEREFORE, DIRECTED TO BE DELETED. 13. THE GROUND OF APPEAL AT SR. NO.6 PERTAINS TO AN ADDITION OF RS.27,31,559/- WHICH HAS BEEN MADE BY THE ASSESSING OFFICER BY TREATING THE CREDITS IN BANK ACCOUNT NO.1552508202 OF M/S K. C.AUTORS MAINTAINED WITH CENTRAL BANK OF INDIA, NAWANSHAHAR OR UNEXPLAI NED. THE ASSESSING OFFICER IN THIS REGARD ALSO OBSERVED THAT THE ASSES EE TOOK DEALERSHIP OF TVS MOTOR CYCLE IN THE NAME AND STYLE M/S K.C. AUTOS BU T NO INCOME FROM THIS BUSINESS HAD BEEN REFLECTED IN THE RETURN OF INCOME . DURING THE COURSE OF APPELLATE PROCEEDING THE AT SUBMITTED THAT THE SAID BUSINESS OF M/S M.C. AUTOS HAD BEEN CARRIED OUT IN A PARTNERSHIP CONCERN WITH THE NAME AND STYLE M/S. K.C. AUTOS AND RETURN OF INCOME OF SAID PARTNERSHIP FIRM HAD BEEN FILED FROM TIME TO TIME. THE APPELLANT ALSO SU BMITTED EVIDENCE OF THIS CLAIM IN THIS REGARD. THE ASSESSING OFFICER DURING THE COURSE OF APPELLATE PROCEEDINGS VERIFIED THE CLAIM OF THE APPELLANT AND SUBMITTED THAT THE PARTNERSHIP DEED OF M/S K.C. AUTOS WAS DATED 18.8.2 004 AND THE RETURN OF INCOME FOR THE SAME HAD ALSO BEEN FILED AND THE ASSESSEE PAN WAS AAHFK5844P. IN VIEW OF THE CLEAR FACTS THAT THE BUS INESS OF AUTO DEALERSHIP WAS IN THE NAME OF THE FIRM AND SAID FIR M HAD FILED ITS RETURN OF INCOME, NO ADDITION COULD BE MADE IN THE HANDS OF T HE APPELLANT. THE SAME IS DIRECTED TO BE DELETED. THE ASSESSING OFFICER MA Y PROCEED TO TAKE ITA NOS.192 TO 194 & 370 (ASR)/2013 ASST. YEARS: 2007-08 TO 2010-11 8 CONSEQUENTIAL ACTION IN THE CASE OF FIRM, IF IMPUGN ED TRANSACTIONS ARE UNACCOUNTED. IN ITA NO.193(ASR)/2013 FOR A.Y: 2008-09 3. THE GROUND OF APPEAL AT SR. NO.3 PERTAINS TO AN ADDITION OF RS.1M85,000 WHICH HAS BEEN MADE BY THE ASSESSING OF FICER ON THE GROUND THAT AS PER STATEMENT OF LOAN ACCOUNT NO.700 243 WITH CENTRAL BANK OF INDIA, NAWANSHAHAR THE ASSESEE HAD MADE REP AYMENT OF RS.1,85,000/-AND NO EVIDENCE REGARDING THE SOURCE H AD BEEN FILED. THE APPELLANT WITH REGARD TO THIS ADDITION SUBMITTED DU RING APPELLATE PROCEEDINGS THAT THE APPELLANT HAD ALSO CLAIMED DED UCTION OF RS.1,00,000/- ON ACCOUNT OF REPAYMENT OF HOUSE BUIL DING ADVANCE U/S 80C OF THE ACT. EVEN THE APPELLANT HAD RECEIVED RS. 1,00,051.78/- FROM K.C. COLLEGE OF ENGINEERING & IT FROM WHOM A SUM OF RS.7,30,000/- WAS RECOVERABLE AS ON 01.04.2007. THE APPELLANT HAD ALS O DECLARED INCOME OF RS.2,94,173/- FROM BUSINESS AND WITHDRAWAL FROM THE BUSINESS WAS RS.1,08,000/-. THE REPAYMENT OF LOAN WAS CLAIMED TO BE OUT OF KNOWN SOURCES OF INCOME. IT IS PRAYED THAT THIS ADDITION MAY KINDLY BE DELETED. 4. I HAVE CONSIDERED THE BASIS OF ADDITION MADE BY THE ASSESSING OFFICER AND THE ARGUMENTS OF THE AR ON THE ISSUE. I T IS APPARENT THAT THE REPAYMENT OF LOAN HAS BEEN MADE IN CASH OVER PERIOD OF 12 MONTHS FOR WHICH THE ASSESSEE DOES NOT HAVE ANY DIRECT EXPLANA TION. THE ASSESSEE HAS ONLY BROUGHT ON RECORD THE FACT OF HAVING WITHD RAWN CERTAIN AMOUNTS FOR HOUSEHOLD WITHDRAWALS AND THE RECEIPT OF AMOUNT S FROM M/S K.C. ENGINEERING COLLEGE. THE EXPLANATION OF THE ASSESSE E IS THIS REGARD CAN NOT BE SAID TO BE FULLY COVERED BY THE GIVEN FACTS EVEN THOUGH CERTAIN AMOUNT OF CASH OUT OF THE WITHDRAWALS OF RS.2,94,173/- COU LD BE SAID TO BE AVAILABLE FOR REPAYMENT OF LOAN. IN THE CIRCUMSTANC ES THE ADDITION MADE BY THE ASSESSING OFFICER IS CONFIRMED TO THE EXTENT OF RS.1,00,000/- 5. THE GROUND OF APPEAL AT SR. NO.4 PERTAIN TO AN A DDITION OF RS.31,10,000/- WHICH HAS BEEN MADE BY THE ASSESSING OFFICER ON ACCOUNT OF ALLEGED UNDISCLOSED INCOME FROM BRICK KILN. THE ASSESSING OFFICER IN THIS REGARD HAS OBSERVED THAT THE ASSESSEE DURING COURSE OF SEARCH STATED THAT HE HAD TAKEN A BRICK KILN IN THE YEAR 2007 ON AN AN NUAL LEASE OF RS.1,25,000/- HE FURTHER STATED THAT ANOTHER BRICK KILN HAD BEEN TAKEN ON LEASE FROM ONE SHRI BHAGAT SINGH OF RS.1,20,000/- D URING THE YEAR 2008 AND THE INCOME FROM THESE BUSINESS HAD NOT BEEN DIS CLOSED IN THE RETURN OF INCOME. THE ASSESSING OFFICER ALSO REFERRED TO PAGE 1-5 OF ANNEXURE-A-4 SEIZED FROM THE ASSESSEES RESIDENCE WHICH CONTAINE D THE FOLLOWING DESCRIPTION OF STOCK WITH SBK BRICK KILN. ITA NOS.192 TO 194 & 370 (ASR)/2013 ASST. YEARS: 2007-08 TO 2010-11 9 DATE STOCK OF BRICK KILN 30.04.2009 3275800/- 30.05.2009 3985800/- 30.06.2009 3515400/- 30.07.2009 3493900/- 30.08.2009 3871200/- THE SAID PAPER WAS EXPLAINED HAS HAVING BEEN WRITTE N FOR THE PURPOSE OF OBTAINING BANK CREDIT LIMIT. THE ASSESSING OFFICER COMBINED TWO STATEMENTS OF THE ASSESSEE OF RUNNING A BRICK KILN AND THE ABOVE MENTIONED RECORDING TO HOLD THAT SUCH BUSINESS WAS KEPT OUT SIDE THE BOOKS OF ACCOUNTS. THE ASSESSING OFFICER PROCEEDED TO WORK OUT PRODUCTION ON THE BASIS OF MONTHLY STOCK STATEMENT AS REPRODUC ED ABOVE SO AS TO WORK OUT THE PROFIT OF RS.31,10,000/-. 10. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE AR OF THE APPELLANT SUBMITTED HIS ARGUMENTS ON THE ISSUE AS UNDER:- THIS ADDITION HAS BEEN DISCUSSED IN PARA 7 OF THE ASSESSMENT ORDER. THE INFORMATION ON THE ON THE BASIS OF WHICH ADDITION HAD BEEN MADE RELATE TO FINANCIAL YEAR 2009-10, WHERE AS THE RELEVANT PREVIOUS YEAR IS FROM 01.04.2006 TO 31.03.2008. THE STATEMENT ARE NOT SIGNED BY ANY ONE. THE PURPOSE FOR WHICH THE STATEMENTS WERE PREP ARED ARE NOT KNOWN. THOSE STATEMENTS, COULD BE EVEN FOR PURPOSE OF BANK . EVEN NO EVIDENCE OF SALE OF ANY GOOD WAS FOUND. THE LD. ASSESSING OFFIC ER HAD REFERRED TO STATEMENT RECORDED AT THE TIME OF SEARCH U/S 132 OF THE ACT. EVEN IN THAT STATEMENT THE APPELLANT MENTIONED THAT HE HAD TAKEN A BRICK KILN ON LEASE IN THE YEAR 2007. THE ASSESSEE HAD NOT DONE ANY BUSINESS OF BRICK KIL N IN HIS INDIVIDUAL CAPACITY DURING THE RELEVANT PREVIOU S YEAR. HOWEVER, IT APPEARS THAT THE APPELLANT WANTED TO DO BUSINESS OF BRICK KILN IN PARTNERSHIP WITH SOME OTHER PERSONS IN SUBSEQUENT Y EARS. EVEN THE APPLICATION FOR RENEWAL OF LICENSE OF BRICK KILN WA S REJECTED. IN THE ORDER OF REJECTION OF BRICK KILN LICENSE, IT IS CLEARLY CIRC UMSTANCES THE LEARNED ASSESSING OFFICER GRAVELY ERRED TO HOLD THAT THE AS SESSEE HAD DONE THE BUSINESS OF BRICK KILN AND ESTIMATED INCOME AT RS.3 1,10,000/-. THE ADDITION IS WITHOUT ANY BASIS. IT IS PRAYED THAT TH E ADDITION MAY KINDLY BE DELETED. PHOTOCOPIES OF THE DOCUMENTS PROVIDING THA T THE APPELLANT WAS ONLY ONE OF THE PARTNERS WERE WITH WRITTEN SUBMISSI ONS FOR THE ASSESSMENT YEAR 2007-08. EVEN IF, FOR THE SAKE OF ARGUMENT IT IS PRESUMED THAT BRICK KILN BUSINESS WAS DONE, INCOME FROM THAT BUSINESS C OULD BE ASSESSED IN THE HANDS OF FIRM OR ASSOCIATION OF PERSONS. THE AS SESSING OFFICER ON CENTRAL CIRCLE-II, WAS NOT HAVING JURISDICTION TO A SSESS THE PERSON WHO ITA NOS.192 TO 194 & 370 (ASR)/2013 ASST. YEARS: 2007-08 TO 2010-11 10 MIGHT HAVE AS PER THE PRESUMPTION OF THE ASSESSING OFFICER, DONE BUSINESS OF BRICK KILN. IT IS AGAIN PRAYED THAT THIS ADDITIO N MAY KINDLY BE DELETED. 7. THE SUBMISSIONS OF THE APPELLANT WERE SENT TO TH E ASSESSING OFFICER AND THE ASSESSING OFFICER ONLY REITERATED THE OBSER VATION AS CONTAINED IN THE ASSESSMENT ORDER. 8. I HAVE CONSIDERED THE BASIS OF ADDITION MADE B Y THE ASSESSING OFFICER AND THE ARGUMENTS OF THE AR ON THE ISSUE. I T IS QUIET APPARENT THAT THE BUSINESS OF BRICK KILN HAD BEEN CARRIED OUT BY THE ASSESSEE AS STATED BY HIM DURING THE COURSE OF STATEMENT RECORDED AT T HE TIME OF SEARCH OPERATION. FURTHER THERE IS EVIDENCE OF THE STOCK A VAILABLE AT THE END OF MONTH DURING THE FINANCIAL YEAR 2009-10. HOWEVER, T HE ASSESSEE DURING THE COURSE OF APPELLANT PROCEEDINGS HAS BROUGHT ON RECORD EVIDENCE IN THE FORM OF PARTNERSHIP DEED EXECUTED IN THE MONTHS OF JANUARY 2007 WHICH CLEARLY SHOWS THAT THE IMPUGNED BUSINESS HAD BEEN C ARRIED OUT BY A PARTNERSHIP FIRM WITH THE NAME AND STYLE M/S SURIND RA BRICK KILN AND THE SALES TAX RETURN FOR VARIOUS YEARS HAD ALSO BEEN FI LED AS A PARTNERSHIP FIRM ONLY. THE SAID EVIDENCE HAS NOT BEEN CREDITED AFRES H WHICH IS EVIDENT FROM THE NATURE OF DOCUMENTS PRODUCED. THE ASSESSING OFF ICER DURING THE COURSE OF APPELLATE PROCEEDINGS DID NOT BRING ON RECORD A CONTRADICTORY EVIDENCE TO SHOW THAT THE NAME OF THE APPELLANT IN THIS REGARD WAS FACTUALLY INCORRECT. THEREFORE, THE INCOME EMANATING OUT OF THE BUSINESS OF BRICK KILN WHICH VERY CLEARLY HAD BEEN CARRIED OUT BY THE FIRM CAN N OT BE ASSESSED IN THE HANDS OF THE ASSESSEE AS A PROPRIETOR. EVEN OTHERWI SE NO EVIDENCE IN THE YEAR UNDER CONSIDERATION HAS BEEN BROUGHT ON RECORD EVEN WITH RESPECT TO THE BUSINESS OF THE FIRM AS THE STOCK POSITION FOUN D DURING THE COURSE OF SEARCH IS WITH RESPECT TO THE ASSTT. YEAR 2010-11 O NLY. HOWEVER, THE ASSESSING OFFICER ON CAREFUL PERUSAL OF THE FACTS O F THE CASE MAY PROCEED TO REOPEN SPECIFIC YEARS IN RESPECT OF THE FIRM SO AS TO BRING TO TAX ANY INCOME THAT WOULD HAVE ESCAPED ASSESSMENT. THE ADDITION MA DE IN THE HANDS OF THE ASSESSEE IS THEREFORE, DIRECTED TO BE DELETED. 9. THE GROUND OF APPEAL AT SR. NO.5 PERTAINS TO AN ADDITION OF RS.4,45,000/- WHICH HAS BEEN MADE BY THE ASSESSING OFFICER BY TREATING THE CREDITS IN BANK ACCOUNT NO.1552508202 OF M/S K. C.AUTORS MAINTAINED WITH CENTRAL BANK OF INDIA, NAWANSHAHAR OR UNEXPLAI NED. THE ASSESSING OFFICER IN THIS REGARD ALSO OBSERVED THAT THE ASSES EE TOOK DEALERSHIP OF TVS MOTOR CYCLE IN THE NAME AND STYLE M/S K.C. AUTOS BU T NO INCOME FROM THIS BUSINESS HAD BEEN REFLECTED IN THE RETURN OF INCOME . DURING THE COURSE OF APPELLATE PROCEEDING THE AT SUBMITTED THAT THE SAID BUSINESS OF M/S K.C. AUTOS HAD BEEN CARRIED OUT IN A PARTNERSHIP CONCERN WITH THE NAME AND STYLE M/S. K.C. AUTOS AND RETURN OF INCOME OF SAID PARTNERSHIP FIRM HAD BEEN FILED FROM TIME TO TIME. THE APPELLANT ALSO SU BMITTED EVIDENCE OF THIS ITA NOS.192 TO 194 & 370 (ASR)/2013 ASST. YEARS: 2007-08 TO 2010-11 11 CLAIM IN THIS REGARD. THE ASSESSING OFFICER DURING THE COURSE OF APPELLATE PROCEEDINGS VERIFIED THE CLAIM OF THE APPELLANT AND SUBMITTED THAT THE PARTNERSHIP DEED OF M/S K.C. AUTOS WAS DATED 18.8.2 004 AND THE RETURN OF INCOME FOR THE SAME HAD ALSO BEEN FILED AND THE ASSESSEE PAN WAS AAHFK5844P. IN VIEW OF THE CLEAR FACTS THAT THE BUS INESS OF AUTO DEALERSHIP WAS IN THE NAME OF THE FIRM AND SAID FIR M HAD FILED ITS RETURN OF INCOME, NO ADDITION COULD BE MADE IN THE HANDS OF T HE APPELLANT. THE SAME IS DIRECTED TO BE DELETED. THE ASSESSING OFFICER MA Y PROCEED TO TAKE CONSEQUENTIAL ACTION IN THE CASE OF FIRM, IF IMPUGN ED TRANSACTIONS ARE UNACCOUNTED. IN ITA NO.194(ASR)/2013 FOR A.Y: 2009-10 6. SINCE THE ASSESSMENT ORDER HAD BEEN PASSED U/S 144, AND THE ASSESSING OFFICER HAD ELABORATED THE REASONS FOR DO ING SO, THE ARS CLAIM OF NOT GETTING REASONABLE OPPORTUNITY TO EXPLAIN HI S CASE HAD TO BE EXAMINED IN THE GIVEN FACTS OF THE CASE. IT IS APPA RENT THAT THE ASSESSING OFFICER HAD ISSUED NUMBER OF NOTICES IN PURSUANCE O F THE CENTRALIZATION ORDER PASSED BY THE CIT DATED 10/08/2010. HOWEVER, THE SAID ORDER OF CENTRALIZATION HAD BEEN CANCELLED BY THE CIT ON 28/ 10/2011 MEANING THEREBY THAT THE ASSESSING OFFICER DID NOT HAVE THE JURISDICTION FOR THE INTERVENING PERIOD. THEREFORE, VARIOUS NOTICES ISSU ED AND THEIR COMPLIANCE/NON COMPLIANCE HAS NO LEGAL VALIDITY ESP ECIALLY WHEN THE ASSESSEE HAD CHALLENGED THE JURISDICTION OF THE ASS ESSING OFFICER ON THE BASIS OF ERRONEOUS CENTRALIZATION ORDER. THE CIT FI NALLY PASSED THE JURISDICTION ORDER CENTRALIZING THE CASES BACK TO T HE ASSESSING OFFICER WITH EFFECT FROM 14/11/2012. IT IS CLEAR FROM THE PERUSA L OF THE RECORDS THAT VERY LIMITED OPPORTUNITY TO EXPLAIN THE CASE HAD BE EN PROVIDED TO THE ASSESSEE AFTER 14.11.2011 I.E., THE DATE FROM WHICH THE ASSESSING OFFICER WAS CONFERRED VALID JURISDICTION TO ASSESS. IT IS A LSO SEEN THAT MOST OF THE NOTICES EVEN PRIOR TO 14.11.2011 HAD BEEN SERVED BY AFFIXTURE AND THE ASSESSEES CLAIM THAT SUCH NOTICES WERE NOT RECEIVE D BY HIM IS ALSO NOT INVALID IN THE CIRCUMSTANCES. IT WOULD BE FAIR TO C ONCLUDE THAT A REASONABLE OPPORTUNITY MUST BE PROVIDED AT THIS STAGE FOR VARI OUS ISSUES TO BE EXAMINED AFRESH. THEREFORE, THE ASSESSING OFFICER W AS DIRECTED TO CALL FOR THE BOOKS OF ACCOUNTS SO AS TO EXAMINE THE ISSUES P ERTAINING TO GROSS PROFIT RATE AS WELL AS SHARE CAPITAL INTRODUCTION AND EXPE NSES DEBITED TO P&L ACCOUNT. 7 . THE ASSESSING OFFICER FURTHER COMMENTED THAT TH E BOOKS OF ACCOUNTS OF THE ASSESSEE FOR ASST. YEARS 2004-05 TO 2010-11 WER E PRODUCED AND WERE EXAMINED ALONG WITH RELEVANT BALANCE SHEET/OTHER DO CUMENTS. THE ASSESSING OFFICER WITH REFERENCE TO THE ADDITION U/ S 44AF SUBMITTED THAT THE FIGURES OF PURCHASES, SALE AND OTHER EXPENSES T ALLIED WITH THE BOOKS OF ITA NOS.192 TO 194 & 370 (ASR)/2013 ASST. YEARS: 2007-08 TO 2010-11 12 ACCOUNTS EXAMINED. IN THE CIRCUMSTANCES IT BECOME A PPARENT THAT THE PROVISIONS OF SECTION 44AF ARE NOT ATTRACTED IN THE CASE OF THE ASSESSEE AS NEITHER TURNOVER IS BELOW THE SPECIFY LIMIT NOR THE RE IS NO MAINTENANCE OF BOOKS OF ACCOUNTS. IT IS ALSO A MATTER OF FACTS THA T NO DISCREPANCY IN THE BOOKS OF ACCOUNT HAS BEEN POINTED OUT NOR ANYTHING HAS BEEN FOUND DURING THE COURSE OF SEARCH OPERATION TO WARRANT ANY DISAL LOWANCE/ADDITION. THEREFORE, THE ADDITION MADE BY THE ASSESSING OFFIC ER U/S 44AF IS DIRECTED TO BE DELETED. 7 THE GROUND OF APPEAL AT SR. NO.4 PERTAINS TO AN ADD ITION OF RS.3,80,127 WHICH HAS BEEN MADE BY THE ASSESSING OFFICER ON THE GROUND THAT AS PER STATEMENT OF LOAN ACCOUNT NO.700243 WITH CENTRA L BANK OF INDIA, NAWANSHAHAR THE ASSESSEE HAD MADE REPAYMENT OF RS.3 ,80,127/- AND NO EVIDENCE REGARDING THE SOURCE HAD BEEN FILED . THE APPELLANT WITH REGARD TO THIS ADDITION SUBMITTED DURING APPEL LATE PROCEEDINGS THAT THE LEARNED ASSESSING OFFICER MENTIONED UNEXPL AINED BANK DEPOSITS AT RS.1,85,000/- BUT MADE ADDITION OF RS.3 ,80,127/- AS DISCUSSED IN PARA 9 OF THE ASSESSMENT ORDER. THE AP PELLANT HAD ALSO CLAIMED DEDUCTION OF RS.1,00,000/- ON ACCOUNT OF RE PAYMENT OF HOUSE BUILDING ADVANCE U/S 80C OF THE ACT. THE APPELLANT HAD ALSO DECLARED INCOME OF RS.2,55,152/- FROM BUSINESS AND WITHDRAWA L FROM THE BUSINESS WAS ALSO MADE. THE REPAYMENT OF LOAN WAS C LAIMED TO BE OUT OF KNOWN SOURCE OF INCOME. IT IS PRAYED THAT THIS A DDITION MAY KINDLY BE DELETED. 9. I HAVE CONSIDERED THE BASIS OF ADDITION MADE B Y THE ASSESSING OFFICER AND THE ARGUMENTS OF THE AR ON THE ISSUE. IT IS APP ARENT THAT THE REPAYMENT OF LOAN HAS BEEN MADE IN CASH OVER PERIOD OF 12 MONTHS FOR WHICH THE ASSESSEE DOES NOT HAVE ANY DIRECT EXPLANA TION. THE ASSESSEE HAS ONLY BROUGHT ON RECORD THE FACT OF HAVING WITHD RAWN CERTAIN AMOUNTS FOR HOUSEHOLD WITHDRAWALS AND THE RECEIPT OF AMOUNT S FROM M/S K.C. ENGINEERING COLLEGE. THE EXPLANATION OF THE ASSESSE E IN THIS REGARD CAN NOT BE SAID TO BE FULLY COVERED BY THE GIVEN FACTS EVEN THOUGH CERTAIN AMOUNT OF CASH OUT OF THE WITHDRAWALS OF RS.2,55,152/- COU LD BE SAID TO BE AVAILABLE FOR REPAYMENT OF LOAN. IN THE CIRCUMSTANC ES THE ADDITION MADE BY THE ASSESSING OFFICER IS CONFIRMED TO THE EXTENT OF RS.1,00,000/- 10. THE GROUND OF APPEAL AT SR. NO.5 PERTAINS TO AN ADDITION OF RS.31,10,000/- WHICH HAS BEEN MADE BY THE ASSESSING OFFICER ON ACCOUNT OF ALLEGED UNDISCLOSED INCOME FROM BRICK KILN. THE ASSESSING OFFICER IN THIS REGARD HAS OBSERVED THAT THE ASSESSEE DURING COURSE OF SEARCH STATED THAT HE HAD TAKEN A BRICK KILN IN THE YEAR 2007 ON AN AN NUAL LEASE OF RS.1,25,000/-. HE FURTHER STATED THAT ANOTHER BRICK KILN HAD BEEN TAKEN ON LEASE FROM ONE SHRI BHAGAT SINGH OF RS.1,20,000/- D URING THE YEAR 2008 ITA NOS.192 TO 194 & 370 (ASR)/2013 ASST. YEARS: 2007-08 TO 2010-11 13 AND THE INCOME FROM THESE BUSINESS HAD NOT BEEN DIS CLOSED IN THE RETURN OF INCOME. THE ASSESSING OFFICER ALSO REFERRED TO PAGE 1-5 OF ANNEXURE A-4 SEIZED FROM THE ASSESSEES RESIDENCE WHICH CONTAINE D THE FOLLOWING DESCRIPTION OF STOCK WITH SBK BRICK KILN. DATE STOCK OF BRICK KILN 30.04.2009 3275800/- 30.05.2009 3985800/- 30.06.2009 3515400/- 30.08.2009 3871200/- THE SAID PAPER WAS EXPLAINED HAS HAVING BEEN WRITTE N FOR THE PURPOSE OF OBTAINING BANK CREDIT LIMIT. THE ASSESSING OFFIC ER COMBINED TWO STATEMENTS OF THE ASSESSEE OF RUNNING A BRICK KLIN AND THE ABOVE MENTIONED RECORDING TO HOLD THAT SUCH BUSINESS WAS KEPT OUT SIDE THE BOOKS OF ACCOUNTS. THE ASSESSING OFFICER PROCEEDED TO WORK OUT PRODUCTION ON THE BASIS OF MONTHLY STOCK STATEMENT AS REPRODUCED ABOVE SO AS TO WORK OUT THE PROFIT OFRS.31,10,000/- . 11. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE AR OF THE APPELLANT SUBMITTED HIS ARGUMENTS ON THE ISSUE AS UNDER:- THIS ADDITION HAS BEEN DISCUSSED IN PARA 7 OF THE ASSESSMENT ORDER. THE INFORMATION ON THE ON THE BASIS OF WHICH ADDITION HAD BEEN MADE RELATE TO FINANCIAL YEAR 2009-10, WHERE AS THE RELEVANT PREVIOUS YEAR IS FROM 01.04.2006 TO 31.03.2007. THE STATEMEN T ARE NOT SIGNED BY ANY ONE. THE PURPOSE FOR WHICH THE STATEMENTS WE RE PREPARED ARE NOT KNOWN. THOSE STATEMENTS, COULD BE EVEN FOR PURP OSE OF BANK. EVEN NO EVIDENCE OF SALE OF ANY GOOD WAS FOUND. THE LD. ASSESSING OFFICER HAD REFERRED TO STATEMENT RECORDED AT THE TIME OF S EARCH U/S 132 OF THE ACT. EVEN IN THAT STATEMENT THE APPELLANT MENTIONED THAT HE HAD TAKEN A BRICK KILN ON LEASE IN THE YEAR 2007, THAT IT CAN BE INTERPRETED SAFELY THAT THE ASSESSEE HAD NOT DONE ANY BUSINESS IN HIS INDIVIDUAL CAPACITY DURING THE RELEVANT PREVIOUS YEAR. IT IS A WELL KNO WN FACT THAT IN SUCH CIRCUMSTANCES BRICK KILN CANNOT BE OPERATED WITHOUT PARTNERSHIP BECAUSE THE PERSON TO WHOM LICNESE OF BRICK KILN HA S BEEN ISSUED IS REQUIRED TO BE ONE OF THE PERSONS FOR THAT BUSINESS . IF PARTNERSHIP DEED IS NOT WRITTEN, THE ASSESSMENT IS REQUIRED TO BE MA DE IN THE STATUS OF ASSOCIATION OF PERSON FOR THAT BUSINESS. IF PARTNER SHIP DEED IS NOT WRITTEN, THE ASSESSMENT IS REQUIRED TO BE MADE IN T HE STATUS OF ASSOCIATION OF PERSON. HOWEVER, IT APPEARS THAT THE APPELLANT WANTED TO DO BUSINESS OF BRICK KILN IN PARTNERSHIP WITH SOME OTHER PERSONS IN ITA NOS.192 TO 194 & 370 (ASR)/2013 ASST. YEARS: 2007-08 TO 2010-11 14 SUBSEQUENT YEARS. EVEN THE APPLICATION FOR RENEWAL OF LICENSE OF BRICK KILN WAS REJECTED. IN THE ORDER OF REJECTION OF BRI CK KILN LICENSE, IT IS CLEARLY MENTIONED THAT SURINDER PAL GANDHI WAS ONE OF THE PARTNERS. IN SUCH CIRCUMSTANCES THE LEARNED ASSESSING OFFICER GR AVELY ERRED TO HOLD THAT THE ASSESEE HAD DONE THE BUSINESS OF BRICK KIL N AND ESTIMATED INCOME AT RS.31,10,000/- THE ADDITION IS WITHOUT AN Y BASIS. IT IS PRAYED THAT THE ADDITION MAY KINDLY BE DELETED. PHO TOCOPIES OF THE DOCUMENTS PROVIDING THAT THE APPELLANT WAS ONLY ONE OF THE PARTNERS. EVEN IF, FOR THE SAKE OF ARGUMENT IT IS PRESUMED TH AT BRICK KILN BUSINESS WAS DOE, INCOME FROM THAT BUSINESS COULD BE ASSESSE D IN THE HANDS OF FIRM OR ASSOCIATION OF PERSONS. THE ASSESSING OFFIC ER OF CENTRAL CIRCLE-II, WAS NOT HAVING JURISDICTION TO ASSESS ETH PERSON WH O MIGHT HAVE AS PER THE PRESUMPTION OF THE ASSESSING OFFICER, DONE BUSI NESS OF BRICK KILN. IT IS AGAIN PRAYED THAT THIS ADDITION MAY KINDLY BE DE LETE. 12. THE SUBMISSIONS OF THE APPELLANT WERE SENT TO T HE ASSESSING OFFICER AND THE ASSESSING OFFICER ONLY REITERATED THE OBSER VATION AS CONTAINED IN THE ASSESSMENT ORDER. 13. I HAVE CONSIDERED THE BASIS OF ADDITION MADE BY THE ASSESSING OFFICER AND THE ARGUMENTS OF THE AR ON THE ISSUE. I T IS QUIET APPARENT THAT THE BUSINESS OF BRICK KILN HAD BEEN CARRIED OU T BY THE ASSESSEE AS STATED BY HIM DURING THE COURSE OF STATEMENT RECORD ED AT THE TIME OF SEARCH OPERATION. FURTHER THERE IS EVIDENCE OF THE STOCK AVAILABLE AT THE END OF MONTH DURING THE FINANCIAL YEAR 2009-10. HOW EVER, THE ASSESSEE DURING THE COURSE OF APPELLANT PROCEEDINGS HAS BROUGHT ON RECORD EVIDENCE IN THE FORM OF PARTNERSHIP DEED EXE CUTED IN THE MONTHS OF JANUARY 2007 WHICH CLEARLY SHOWS THAT THE IMPUGN ED BUSINESS HAD BEEN CARRIED OUT BY A PARTNERSHIP FIRM WITH THE NAM E AND STYLE M/S SURINDRA BRICK KILN AND THE SALES TAX RETURN FOR VA RIOUS YEARS HAD ALSO BEEN FILED AS A PARTNERSHIP FIRM ONLY. THE SAID EVI DENCE HAS NOT BEEN CREDITED AFRESH WHICH IS EVIDENT FROM THE NATURE OF DOCUMENTS PRODUCED. THE ASSESSING OFFICER DURING THE COURSE O F APPELLATE PROCEEDINGS DID NOT BRING ON RECORD A CONTRADICTORY EVIDENCE TO SHOW THAT THE NAME OF THE APPELLANT IN THIS REGARD WAS F ACTUALLY INCORRECT. THEREFORE, THE INCOME EMANATING OUT OF THE BUSINESS OF BRICK KILN WHICH VERY CLEARLY HAD BEEN CARRIED OUT BY THE FIRM CAN N OT BE ASSESSED IN THE HANDS OF THE ASSESSEE AS A PROPRIETOR. EVEN OTH ERWISE NO EVIDENCE IN THE YEAR UNDER CONSIDERATION HAS BEEN BROUGHT ON RECORD EVEN WITH RESPECT TO THE BUSINESS OF THE FIRM AS THE STOCK PO SITION FOUND DURING THE COURSE OF SEARCH IS WITH RESPECT TO THE ASSTT. YEAR 2010-11 ONLY. HOWEVER, THE ASSESSING OFFICER ON CAREFUL PERUSAL O F THE FACTS OF THE CASE MAY PROCEED TO REOPEN SPECIFIC YEARS IN RESPEC T OF THE FIRM SO AS TO BRING TO TAX ANY INCOME THAT WOULD HAVE ESCAPED ASS ESSMENT. THE ITA NOS.192 TO 194 & 370 (ASR)/2013 ASST. YEARS: 2007-08 TO 2010-11 15 ADDITION MADE IN THE HANDS OF THE ASSESSEE IS THERE FORE, DIRECTED TO BE DELETED. 14. THE GROUND OF APPEAL AT SR. NO.6 PERTAINS TO A N ADDITION OF RS.49,49,206/- WHICH HAS BEEN MADE BY THE ASSESSING OFFICER BY TREATING THE CREDITS IN BANK ACCOUNT NO.1552508202 OF M/S K.C.AUTORS MAINTAINED WITH CENTRAL BANK OF INDIA, NAWANSHAHAR OR UNEXPLAINED. THE ASSESSING OFFICER IN THIS REGARD ALSO OBSERVED THAT THE ASSESEE TOOK DEALERSHIP OF TVS MOTOR CYCLE IN THE NAME AND STYLE M/S K.C. AUTOS BUT NO INCOME FROM THIS BUSINESS HAD BEEN REFLECTED IN THE RETURN OF INCOME. DURING THE COURSE OF APPELLATE PROCEEDING T HE AT SUBMITTED THAT THE SAID BUSINESS OF M/S K.C. AUTOS HAD BEEN C ARRIED OUT IN A PARTNERSHIP CONCERN WITH THE NAME AND STYLE M/S. K. C. AUTOS AND RETURN OF INCOME OF SAID PARTNERSHIP FIRM HAD BEEN FILED FROM TIME TO TIME. THE APPELLANT ALSO SUBMITTED EVIDENCE OF THIS CLAIM IN THIS REGARD. THE ASSESSING OFFICER DURING THE COURSE OF APPELLAT E PROCEEDINGS VERIFIED THE CLAIM OF THE APPELLANT AND SUBMITTED T HAT THE PARTNERSHIP DEED OF M/S K.C. AUTOS WAS DATED 18.8.2004 AND THE RETURN OF INCOME FOR THE SAME HAD ALSO BEEN FILED AND THE ASSESSEE PAN WAS AAHFK5844P. IN VIEW OF THE CLEAR FACTS THAT THE BUS INESS OF AUTO DEALERSHIP WAS IN THE NAME OF THE FIRM AND SAID FIR M HAD FILED ITS RETURN OF INCOME, NO ADDITION COULD BE MADE IN THE HANDS OF THE APPELLANT. THE SAME IS DIRECTED TO BE DELETED. THE ASSESSING OFFICER MAY PROCEED TO TAKE CONSEQUENTIAL ACTION IN THE CAS E OF FIRM, IF IMPUGNED TRANSACTIONS ARE UNACCOUNTED. 8. IN ITA NO.370(ASR)/2013 FOR A.Y:2010-11 THE LEARNED CIT(A) IN RESPECT OF INCOME FROM GENERA L STORE AND CEMENT STORE, IN RESPECT OF INCOME FROM BRICK KILNS AND FOR UNEXP LAINED CREDITS IN BANK ACCOUNT NO.1552508202, ALLOWED RELIEF TO THE ASSESS EE IN THIS YEAR ALSO BY RECORDING SIMILAR FINDINGS. 9. AS REGARDS THE ADDITION OF RS.3,80,127 AS UNEXPLAIN ED CREDITS IN BANK ACCOUNT NO.700243, THE LEARNED CIT(A) CONFIRME D THE ADDITION TO THE EXTENT OF RS. 1 LAC BY HOLDING SIMILAR FINDINGS AS IN EARLIER YEARS REPRODUCED ABOVE IN EARLIER PART OF THIS ORDER. ITA NOS.192 TO 194 & 370 (ASR)/2013 ASST. YEARS: 2007-08 TO 2010-11 16 10. AS REGARDS THE ADDITION OF RS.2,22,340/- AS UNEXPLAINED JWELLERY THE LEARNED CIT(A) ALLOWED RELIEF TO THE ASSESSEE B Y HOLDING AS UNDER: 17 I HAVE CONSIDERED THE BASIS OF ADDITION MADE BY THE ASSESSING OFFICER AND THE ARGUMENTS OF THE AR ON THE ISSUES A S WELL AS THE REPORT OF ASSESSING OFFICER IN THE REMAND PROCEEDIN GS. IT IS A MATTER OF FACT THAT THE JWELLERY FOUND DURING THE SEARCH O PERATION BELONGED TO THREE LADIES IN THE HOUSE AND NONE OF THEM IS WE ALTH TAX ASSESSEE. IT IS ALSO A MATTER OF FACT THAT NO STATE MENT HAS BEEN RECORDED DURING THE COURSE OF SEARCH OPERATION ON T HE ISSUE OF ACCOUNTABILITY OF IMPUGNED JEWELLERY AND SAME HAS N OT BEEN SEIZED ON THE BASIS OF CBDT CIRCULAR REFERRED TO BY THE AP PELLANT. IT IS CLEAR THAT THE CIRCULAR REFERRED TO BY THE APPELLANT IS M EANT FOR THE PROCEDURE TO BE ADOPTED BY THE AUTHORIZED OFFICERS DURING THE COURSE OF SEARCH OPERATION IN ORDER TO MINIMIZE THE INCONVENIENCE ASSOCIATED WITH SEIZURE OF JEWELLERY ESPECIALLY WHE N THE SAME IS WITHIN CERTAIN LIMITS AS PRESCRIBED THEREIN. HOWEVE R, THE SAME IS NOT APPLICTBLE TO THE ASSESSING OFFICER FOR THE PURPOSE OF ASSESSMENT. THE ASSESSING OFFICER HAS GIVEN ALLOWANCE OF RS.1,5 0,000/- BEING ISTRIDHAN WHICH TO MY KIND COULD NOT BE APPROPRIATE AND REASONABLE ESPECIALLY WHEN THERE ARE TOW LADIES AND THREE MALE S LIVING JOINTLY AND NO OTHER JEWELLERY HAS BEEN FOUND FROM THE RESI DENCE/LOCKERS. IT IS ALSO A FACT THAT NO EVIDENCE OF PURCHASE OF J WELLERY DURING THE YEAR OR EARLIER YEARS HAS BEEN FOUND AND THE AMOUNT OF JWELLERY RECOVERED IS WELL WITHIN THE NORMAL JEWELLERY OWNED BY LADIES BELONGING TO REASONABLY AFFLUENT FAMILIES. FURTHER THE JWELLERY IN QUESTION IS NOT TOO HIGH IN VALUE SO AS TO WARRANT THE CONCLUSION THAT THE SAME IS UNACCOUNTED TO THE EXTENT HELD BY THE A SSESSING OFFICER. THEREFORE, ADDITION MADE BY THE ASSESSING OFFICER I N THIS REGARD IS DIRECTED TO BE DELETED. 11. COMING TO LAST ADDITION OF RS.4,86,25,000/- , WHICH THE ASSESSING OFFICER HAD MADE ON ACCOUNT OF UNEXPLAINED INVESTME NTS IN LAND, THE LEARNED CIT(A) DELETED THE SAME BY HOLDING AS UNDER : 19. DURING THE COURSE OF APPELLATE PROCEEDING, THE AR OF THE APPELLANT SUBMITTED HIS ARGUMENTS ON THE ISSUE AS UNDER: THE ADDITION OF RS.4,86,25,000/- IS DISCUSSED IN P ARA 11 OF THE ASSESSMENT ORDER. THE PAPER ON THE BASIS OF WHICH A DDITION HAS BEEN MADE WAS SEIZED FROM HOTEL K.C. RESIDENCY, CHA NDIGARH. THE ITA NOS.192 TO 194 & 370 (ASR)/2013 ASST. YEARS: 2007-08 TO 2010-11 17 DOCUMENT WHICH IS DEAF AND DUMB WAS NOT FOUND AT T HE PLACE WHICH IS IN POSSESSION OF THE ASSESSEE. EVEN THE DO CUMENT WAS NOT IN CONTROL OF THE APPELLATE. IN SUCH CIRCUMSTANCES THE PRESUMPTION U/S 132 (4A) OF THE ACT IS NOT APPLICABLE. EVEN THA T DOCUMENT WAS NOT CONFRONTED TO THE ASSESSEE IN THE COURSE OF ASS ESSMENT PROCEEDINGS. WITH GREAT DIFFICULTY THE ASSESSEE CO ULD GET A COPY OF THAT PAPER AND DECLARE THAT NONE OF THE PROPERTIES MENTIONED IN THAT DOCUMENT EVER BELONGED/OWNED BY THE APPELLANT. THE APPELLANT HAS ALSO FILED AN AFFIDAVIT TO THIS EFFE CT. EVEN THE MARKET VALUE OF THOSE PROPERTIES HAS BEEN CALCULATED AT RS .1,91,00,000/- AND AGAIN AT THE LOWER HALF OF THAT DOCUMENT AT RS. 1,29,00,000/-. EVEN ON THAT BASIS OF RS.4,86,25,000/- IS NOT SUSTA INABLE. THE APPELLANT IS NOT IN A POSITION TO STATE THE PURPOSE FOR WHICH THAT PAPER WAS PREPARED OR WAS USED FOR ANY PURPOSE BY A NY PERSON. IT IS PRAYED THAT THIS ADDITION MAY KINDLY BE DELETED. 20. THE SUBMISSIONS OF THE APPELLANT WERE SENT TO T HE ASSESSING OFFICER FOR HIS COMMENTS AND HE REITERATED THE OBSE RVATIONS OF THE AO IN THE ASSESSMENT ORDER. I HAVE CONSIDERED THE B ASIS OF THE ADDITION MADE BY THE AO AND THE ARGUMENTS OF THE AR ON THE ISSUE AND THE COMMENTS OF THE AO IN THE REMAND REPORT. FI RST OF ALL, IT NEEDS TO BE APPRECIATED THAT THE DOCUMENT RELIED U PON BY THE AO AND HAD BEEN FOUND FROM THE PREMISES OF M/S. K.C. RESIDENCY, A HOTEL IN WHICH THE ASSESSEE DOES NOT HAVE ANY SHAR E AND WHICH IS OWNED BY SH. PREM GANDHI AND THE PRIMARY ONUS OF EX PLAINING THE SAME SHOULD HAVE BEEN ON HIM ONLY. THE SAID PAPER IS IN THE FORM OF A PRINT OUT AND THEREFORE, NOT WRITTEN BY THE AS SESSEE HIMSELF AND THE AO HAS NEITHER DURING THE ASSESSMENT PROCEEDING S NOR DURING THE APPELLATE PROCEEDINGS EXAMINED THE ISSUE AS TO WHY THE SAME HAD BEEN PREPARED. HOWEVER, SINCE THE IMPUGNED PAPE R RECORDS THE NAME OF THE ASSESSEE AS THE ONE TO WHOM THE DETAILE D PROPERTIES BELONG, IT WAS CORRECT TO CALL THE ASSESSEES EXPLA NATION ON THE SAME AS WELL. THE ASSESSEE ON HIS PART AS EXPLAINED THAT APART FROM OWNING ONE HOUSE AS RECORDED IN THE IMPUGNED PAPER, HE DOES NOT OWN OR HAD EVER OWNED ANY OTHER PROPERTY. IN THE FA CE OF THIS CLEAR CUT DENIAL, THE AO IS EXPECTED TO BRING ON RECORD A NY EVIDENCE IN THE FORM OF REVENUE RECORDS TO SHOW THAT ASSESSEE HAD B EEN OWNER OF THE IMPUGNED PROPERTIES. HERE AGAIN, THE ISSUE IS T HAT THE PROPERTIES HAVE BEEN MENTIONED IN A MANNER THAT THE SAME CAN N OT BE LOCATED WITH GIVEN INFORMATION. IF THE ASSESSEE WAS THE REA L OWNER OF THE PROPERTIES IN QUESTION, THE EVIDENCE OF SAME IN THE FORM OF TITLE PAPERS SHOULD HAVE BEEN FOUND DURING THE COURSE OF SEARCH OPERATION WHICH IS NOT THE CASE. THERE IS ONLY ONE PROPERTY OUT OF ENTIRE LIST WHICH IS IDENTIFIABLE, I.E., THE RESIDE NTIAL HOUSE IN WHICH ITA NOS.192 TO 194 & 370 (ASR)/2013 ASST. YEARS: 2007-08 TO 2010-11 18 THE ASSESSEE WAS FOUND TO BE LIVING AT THE TIME OF SEARCH. THE SAID HOUSE HAS ALSO BEEN RECORDED AT A VALUE AOF RS.15, 00,000/- WHICH CLEARLY SHOWS THAT THE PAPER RECORDS ONLY PERCEIVED VALUATION AND NOT THE INVESTMENT DONE BY THE ASSESSEE. THE LIST O F PROPERTIES IS THEREFORE, AT BEST A VALUATION AND THEREFORE, CANNO T BE TREATED AS INVESTMENT. IN THE CIRCUMSTANCES, THE AO WAS DIREC TED TO CALL FOR A REPORT FROM THE OFFICE OF THE TEHSILDAR/PATWARI OF RELEVANT REVENUE DISTRICT TO BRING ON RECORD THE EVIDENCE OF THE ASS ESSEE ACTUALLY OWNING IMMOVABLE PROPERTY AS RECORDED IN THE SEIZED DOCUMENT. THE AO VIDE HIS REPORT DATED 06.03.2013 SUBMITTED T HE INFORMATION AS OBTAINED FROM THE OFFICE OF THE TEHSILDAR AS UND ER: IN THIS CONNECTION, IT IS SUBMITTED THAT AS PER YO UR LETTER NO.1277 DATED 29.02.2013, THE INFORMATION FROM THE TEHSILDA R OFFICE, NAWANSHAHAR, WAS CALLED FOR U/S 133(6) OF THE I.T. ACT, 1961 VIDE THIS OFFICE LETTER NO.1814 DATED 10.01.2013. REPLY IN RESPONSE TO YOUR LETTER WAS ALSO SUBMITTED BEFORE YOUR GOODSEL F BY THIS OFFICE LETTER NO.2011 DATED 7/11.02.2013. THE BULK INFORMA TION FROM THE TEHSILDAR OFFICE, NAWANSHAHAR HAS BEEN RECEIVED IN THIS OFFICE TODAY, I.E., 05.03.2013. THE INFORMATION RECEIVED I N THIS CASE IS AS FOLLOWS:- SR. NO. NAME OF THE ASSESSEE KHEWAT NO./KHATON I NO. DESCRIPTION OF THE PROPERTY KHASRA NO. JAMABANDI/HADB AST NO. ADDRESS OF THE PROPERTY 1. SURINDER PAL GANDHI 1734/2018 2908/2057 2007-08/126 BHAGAT SINGH NAGAR, NAWANSHAH AR 2. -DO- 2568/2983 106 -DO- -DO- 3. -DO- 2569/2984 107 -DO- -DO- 4. -DO- 153/172 5814/53. 54 5816/55 5820/57, 5822/25 78 -DO- -DO- 5. -DO- 8/12/3 2007-08/162 VILL. SALOH, TEHSIL NAWANSHAH AR 6. -DO- 291/270/3 23 2007-08 -DO- 7. -DO- 387/351, 455 -DO- -DO- 8. -DO- 560/527 683 62/5/2 -DO- 135 BARNALA KALAN, ITA NOS.192 TO 194 & 370 (ASR)/2013 ASST. YEARS: 2007-08 TO 2010-11 19 NAWANSHAH R 9. -DO- 547/515 670 62/11 -DO-135 -DO- 10. -DO- 546/514 669 62/10 -DO-135 -DO- 11. -DO- 519/488 640 59/4/2 -DO-135 -DO- 12. -DO- 518/487 639 59/3 -DO-135 -DO- 13. -DO- 175/175.1 71 219 1/7/2 2006-07/127 DURGAPUR, NAWANSHAR 13 A -DO- 54/51 86 21/225/2/ 2 -DO-127 -DO- 14 -DO- 205/6687 PART -DO- -DO- 21. THE REPORT OF THE ASSESSING OFFICER WENT GIVEN TO THE AR FOR HIS COMMENTS WHICH WERE RECEIVED AS UNDER: IN INVITING REFERENCE TO THE DISCUSSION WE HAD, IT IS TO INFORM YOU THAT THE AVAILABLE LAND AS PER LETTER DATED 06.03.2013 OF TH E DCIT OF INCOME TAX CENTRAL CIRCLE II IS AS UNDER:- SR. NO. AS PER LETTER REFERRED TO ABOVE. AREA OF LA ND REMAINING 1. BHAGAT SINGH NAGAR, NAWANSHAR. (NII) 1/3 OF 1 SARSAI IE. 0.375 SQ FT. 2. -DO- 0.36 MARLAS 3. -DO- 0.69 MARLAS 4. -DO- 2.25.SARSAI I.E. 2.38 MARLAS 5. V. SALOH (NIL) OF SARSAI 6. V. SALOH (NIL) 0.5 SQ FT. 7. V. SALOH 0.5 SQ. FT. 8. BARNALA KALAN 3 MARLA 9. BARNALA KALAN 0.15 SQ FT. 10. BARNALA KALAN 4.56 MARLAS 11. BARNALA KALAN 1.175 MARLA 12. BARNALA KALAN 25 SQ FT 13. DURGAPUR, NAWANSHAHR 5 SQ FT 13.A DURGAPUR, NAWANSHAHR 9 SQ FT. 14. DURGAPUR, NAWANSHAHR 17 SQ FT. IT IS AGAIN BROUGHT TO YOUR KIND NOTICE THAT THE AR EAS LEFT ARE NOT AVAILABLE TO THE ASSESSEE. THE VALUATION IS BECAUSE OF THE TIME OF PURCHASE OF LAND AS PER JAMABANDI WAS MENTIONED IN THE DEED AND THE LAND AT THE TIME OF SALE ACTUALLY AVAILABLE AT THE SPOT WAS MEN TIONED IN THE SALE. ITA NOS.192 TO 194 & 370 (ASR)/2013 ASST. YEARS: 2007-08 TO 2010-11 20 22. THE AR FURTHER SUBMITTED THE FOLLOWING ON THE I SSUE: IN CONTINUATION TO OUR LETTER DATED 12.03.2013. I T IS AGAIN SUBMITTED THAT ADDITION OF RS.4,86,25,000/- IS BASE D ON DEAF AND DUMB PAPER TO WHICH PROVISIONS OF SECTION 132(4A) OF THE ACT ARE NOT APPLICABLE. ANOTHER ATTEMPT TO LOCATE THE RECORDS OF THE APROPE RTIES MENTIONED IN LETTER DATED 06.03.13 OF THE ASSESSING OFFICER WAS MADE. P ROPERTIES MENTIONED AT SERIAL NO.2 AND 3 WERE PURCHASED ON 22.10.1999BY SURINDER PAL, SUBASH CHANDER, PREL PAL SONS OF KHUSHHAL CHAND AND AT PRESENT THE BALANCE LAND REMAINS AT 0.36 AND 0.69 MARLAS. THIS VARIATION MAY BE BECAUSE OF THE FACT THAT AT THE TIME OF PURCHASE TH E AREA AS MENTIONED IN THE JAMBANDI WAS CONSIDERED AND AT THE TIME OF SALE AREA ACTUALLY AVAILABLE WAS MENTIONED IN THE SALE DEED. A PHOTOCO PY OF THE PURCHASE DEED IS ATTACHED. LAND MEASURING 21 KANALS 2 MARLAS MENTIONED AT S. NO.4 OF LETTER UNDER REFERENCE WAS PURCHASED BY SUR INDER PAL, PREM PAL, ASHWANI KUMAR AND SUBASH CHANDER SONS OF KHUSHHAL C HAND ON 20.07.1993. AS PHOTOCOPY OF THE PURCHASE DEED IS EN CLOSED. AT PRESENT THE BALANCE LAND OUT OF THAT REMAINS IS ONLY 2 MARLAS A ND 2.5 SARSAIES. THIS DIFFERENCE COULD ALSO BE DUE TO DIFFERENCE IN MEASU REMENT AT THE TIME OF PURCHASE AND SALE. THE LAND MENTIONED AT SERIAL NO. 5 MEASURING 45 KANAL 19 MARLAS WAS PURCHASED ON 10.02.1998 BY SURINER PA L, SUBAHS CHANDER, ASHWANI KUMAR SONS OF KHUSHAL CHAND AND AT PRESENT THERE IS NO LAND. LAND MENTIONED AT SERIAL NO.8,9,10 WERE PU RCHASED ON 22.09.1999 BY SURINDER PAL, SUBASH CHANDER, ASHWANI KUMAR SONS OF KHUSHHAL CHAND AND THE BALANCE LAND REMAINS ONLY A FEW MARLAS WHICH MAY BE DUE TO VARIATION IN MEASUREMENT. LAND MENTIO NED AT SERIAL NO.13 WAS PURCHASED ON 25.01.1999 BY SURINER PAL, ASHWANI KUMAR SONS OF KHUSHHAL CHAND AND 25.01.2000. THE INFORMATION IN R ESPECT OF SERIAL NO.6,7,12 AND 14 IS INCOMPLETE AND THE ASSESSEE IS NOT IN POSITION TO COMMENT ON THOSE ITEMS. SIMILAR IS THE POSITION REG ARDING LAND MENTIONED AT SERIAL NO.1. THE ASSESSEE AGAIN DECLARED THAT NO INVESTMENT IN PURCHASING ANY LAND WAS MAD DURING THE PREVIOUS YEA R RELEVANT TO THE ASSESSMENT YEAR 2010-11. IT IS AGAIN PRAYED THAT THIS ADDITION OF RS.4,86,25 ,000/- MAY KINDLY BE DELETED. 23. I HAVE CONSIDERED THE FACTS OF THE CASE IN THE LIGHT OF THE REPORT OF THE ASSESSING OFFICER BASED UPON THE REVENUE RECORD S AND THE FACTUAL CLARIFICATION GIVEN BY THE APPELLANT AS DETAILED AB OVE. IT IS QUITE CLEAR THAT THE LANDS OWNED BY THE APPELLANT ALONG WITH HIS OTH ER BROTHERS ARE VERY INSIGNIFICANT IN TERMS OF AREA SO AS TO BE OF ANY V ALUE. FURTHER, THERE IS NO EVIDENCE EVEN TO HOLD THAT THE SAID INSIGNIFICANT V ALUABLE IMMOVABLE PROPERTIES/PLOTS WERE PURCHASED IN THE YEAR UNDER C ONSIDERATION. IN FACT, THE EVIDENCE IS QUITE TO THE CONTRARY AS THE SAID A SSETS HAVE BEEN ITA NOS.192 TO 194 & 370 (ASR)/2013 ASST. YEARS: 2007-08 TO 2010-11 21 PURCHASED IN THE YEAR 1986 AND 1989 AS EVIDENCED BY THE COPIES OF THE REGISTRATION DEEDS. THE ENTIRE EXERCISE IN THIS REG ARD HAS CLEARLY POINTED OUT THAT THE RECORDS ON THE SAID PAPERS DO NOT HAVE RELATIONSHIP WITH THE ASSETS ACTUALLY OWNED BY THE ASSESSEE OR INVESTMENT MADE BY THE INTO THEM. IN FACT, THE LIST CONTAINS UNIDENTIFIABLE PRO PERTIES WHICH HAVE BEEN VALUED WITH NO RELATIONSHIP WITH REGARD TO THE ACTU AL INVESTMENT. THE SEIZED PAPER THEREFORE CAN NOT BE TAKEN TO BE THE B ASIS FOR MAKING ADDITION OF RS.4,86,25,000/- BEING ASSESSEES UNEXPLAINED IN VESTMENT INTO THE PURCHASED OF SAID PROPERTIES. THE EVIDENCE ON RECOR D IS MORE THAN SUFFICIENT TO HOLD THAT THE SAID LIST IS ACTUALLY A N ESTIMATION/VALUATION ONLY. IN THE CIRCUMSTANCES, THE ADDITION MADE IS DIRECTED TO BE DELETED. 12. AGGRIEVED THE ORDER THE REVENUE IS IN APPE AL BEFORE US. 13. THE LEARNED DR, ARGUED THAT ASSESSING OFFICER H AD GIVEN SUFFICIENT OPPORTUNITIES TO THE ASSESSEE BUT HE DID NOT COOPER ATE WITH THE ASSESSMENT PROCEEDINGS, THEREFORE, ASSESSING OFFICE R WAS BOUND TO COMPLETE ASSESSMENT ON THE BASIS OF MATERIAL ON REC ORD. HE FURTHER SUBMITTED THAT LEARNED CIT(A) HAS WRONGLY ADMITTED ADDITIONAL EVIDENCES AND, THEREFORE, HE HAD WRONGLY ALLOWED RELIEF TO T HE ASSESSEE. 14. AS REGARDS MERITS OF THE ADDITIONS DELETED B Y LEARNED CIT(A), LEARNED DR HEAVILY PLACED HIS RELIANCE ON THE ORDER OF ASSESSING OFFICER. 15. THE LEARNED AR, ON THE OTHER HAND, REGARDING OB JECTION OF REVENUE FOR ADMISSION OF ADDITIONAL EVIDENCES SUBMITTED THA T THE LEARNED CIT(A) HAS PASSED A DETAILED ORDER FOR ADMISSIONS OF EVIDE NCES AND SIMILARLY HE HAS PASSED A DETAILED ORDER IN RESPECT OF ADDITIONS AND HE RELIED UPON THE ORDER OF LEARNED CIT(A). 16. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE T HROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT THE PRIMARY OBJECTION OF REVENUE IS THE GRIEVANCE OF ADMITTING THE ADDITIONAL EVIDEN CES BY THE LEARNED ITA NOS.192 TO 194 & 370 (ASR)/2013 ASST. YEARS: 2007-08 TO 2010-11 22 CIT(A), SPECIFICALLY IN VIEW OF THE FACT THAT ASSES SING OFFICER HAD PROVIDED SUFFICIENT OPPORTUNITIES TO THE ASSESSEE. IT IS A F ACT THAT ASSESSING OFFICER HAD ISSUED A NUMBER OF NOTICES BUT THE CASES OF THE ASSESEE WERE CENTRALIZED BY CIT ON DATED 10.08.2010, HOWEVER, TH E SAID ORDER OF CENTRALIZATION HAD BEEN CANCELLED BY THE CIT ON 28. 10.2011 MEANING THEREBY THAT THE ASSESSING OFFICER DID NOT HAVE THE JURISDICTION FOR THE INTERVENING PERIOD AND THEREFORE, VARIOUS NOTICES I SSUED AND THEIR COMPLIANCE/NON COMPLIANCE HAD NO LEGAL AUTHORITY SP ECIALLY AS THE ASSESSEE HAD CHALLENGED JURISDICTION OF ASSESSING O FFICER ON THE BASIS OF ERRONEOUS CENTRALIZATION ORDER. WE FURTHER FIND THA T CIT(A) FINALLY PASSED THE JURISDICTION ORDER CENTRALIZING THE CASES BACK TO THE ASSESSING OFFICER W.E.F, 14.11.2011 AND THE ORDER OF ASSESSMENTS WERE PASSED ON 26.12.2011, FOR ASSESSMENT YEAR 2007-08, 2008-09 AN D 2009-10 FOR 2010-11 WAS PASSED ON 28.11.2011. THESE FINDINGS HA S BEEN RECORDED BY LEARNED CIT(A) WHILE ADMITTING THE ADDITIONAL EVIDE NCES. FROM THE ABOVE FINDINGS RECORDED BY LEARNED CIT(A) WE FIND THAT HE HAS RIGHTLY HELD THAT ASSESSEE WAS PROVIDED INSUFFICIENT OPPORTUNITY AND, THEREFORE, HE HAS RIGHTLY ADMITTED THE ADDITIONAL EVIDENCES. FURTHER MORE WE FIND THAT THE ADDITIONAL EVIDENCES WERE AT THE ROOT OF ADDITIONS WHICH WERE NECESSARY FOR CONSIDERATION AND LEARNED CIT(A) HAD FORWARDED SUCH ADDITIONAL EVIDENCES TO ASSESSING OFFICER FOR HIS REMAND REPOR T AND HAD ALSO CONSIDERED THE REMAND REPORT WHILE ALLOWING RELIEF TO THE ASSESSEE. IN ITA NOS.192 TO 194 & 370 (ASR)/2013 ASST. YEARS: 2007-08 TO 2010-11 23 VIEW OF THE ABOVE, WE HOLD THAT LEARNED CIT(A) HAD RIGHTLY ACCEPTED THE ADDITIONAL EVIDENCES. 17. AS REGARDS THE DELETION OF ADDITIONS ON ME RITS, WE FIND THAT AS REGARDS ADDITIONS U/S 44AF, THE LEARNED CIT(A) HAS HELD THAT THE TURN OVER OF THE ASSESSEE WAS EXCEEDING PRESCRIBED TURN OVER FOR DECLARATION OF PROFITS U/S 44AF AND MOREOVER THE HE HAS HELD THAT THE BOOKS OF ACCOUNTS OF ASSESSEE WERE PRODUCED AND ASSESSING OF FICER HAD VERIFIED FIGURES OF PURCHASES AND SALES AND OTHER EXPENSES A ND WHICH TALLIED WITH THE BOOKS OF ACCOUNTS AND THEREFORE, HE HAS RIGHTLY DELETED THE ADDITION MADE U/S 44AF OF THE ACT. 18. AS REGARDS INCOME FROM BRICK KILN THE LEARNED C IT(A) HAS RECORDED A FINDING OF FACT THAT THE BUSINESS OF BRICK KILN W AS NOT DONE BY ASSESSEE AND RATHER IT WAS BEING DONE BY A PARTNERSHIP FIRM WHICH WAS A SEPARATE LEGAL ENTITY. HE HAS FURTHER HELD THAT MR. SURINDER PAL GANDHI WAS ONE OF THE PARTNERS IN SUCH FIRM AND THE NAME OF FIRM WAS M/S. SURINDER BRICK KILN. HE HAS FURTHER HELD THAT SALES TAX RETURNS FO R VARIOUS YEARS HAS ALSO BEEN FILED AS PARTNERSHIP FIRM ONLY. THEREFORE, IN VIEW OF ALL THESE FACTS AND CIRCUMSTANCES THE ADDITION IN THE CASES OF THE ASSESSEE WAS NOT WARRANTED AS M/S. SURINDER BRICK KILN WAS A SEPARAT E LEGAL ENTITY. 19. COMING TO THE ADDITIONS MADE IN THE BANK ACCOUN T NO.1552508202 WE FIND THAT THIS ACCOUNT RELATED TO THE PARTNERSHIP FIRM ITA NOS.192 TO 194 & 370 (ASR)/2013 ASST. YEARS: 2007-08 TO 2010-11 24 WITH THE NAME AND STYLE OF M/S K.C. AUTOS AND RETUR N OF THIS FIRM HAD BEEN FILED FROM TIME TO TIME. THE LEARNED CIT(A) HA S FURTHER NOTED THAT M/S K.C. AUTOS WAS A PARTNERSHIP FIRM HAVING PAN NO .AAHFK5844P AND THEREFORE, THE LEARNED CIT(A) HAS RIGHTLY DELETED T HIS ADDITION AS THE BANK ACCOUNT ON THE BASIS OF WHICH THE ADDITION WAS MADE NEVER BELONGED TO THE ASSESSEE AND RATHER IT BELONGED TO A DIFFERENT ASSESSEE AND WHICH WAS A PARTNERSHIP FIRM. 20. AS REGARDS UNEXPLAINED DEPOSITS IN ACCOUNT NO. 700243, WE FIND THAT LEARNED CIT(A) HAD CONFIRMED PART ADDITION. THE LEA RNED CIT(A) HAS FURTHER HELD THAT THOUGH A PART OF THE DEPSOITS IN THE BANK WAS EXPLAINABLE FROM THE CASH RECEIVED FROM M/S. K.C. E NGINEERING COLLEGE BUT THE FULL AMOUNT OF DEPOSITS WAS NOT EXPLAINABLE , THEREFORE, HE HAD RIGHTLY CONFIRMED THE ADDITION OF RS.1 LAC IN ALL T HESE YEARS. 21. AS REGARDS THE ADDITION ON ACCOUNT OF UNEXPLAIN ED INVESTMENTS WE FIND THAT ASSESSING OFFICER HAD MADE THIS ADDITION ON THE BASIS OF SEIZED DOCUMENTS LISTED AT PAGE 107 ANNEXURE-2 WHEREIN THE LIST OF LAND OF SH. SURINDER PAL GANDHI WAS PLACED. THE ASSETS WERE LIS TED AT RS.1,91,00,000/- AND FROM ANOTHER LIST ASSESSING OF FICER OBSERVED THAT ASSESSEE HAD ASSETS OF RS.1,29,00,000/-. THE ASSESS ING OFFICER FURTHER ON THE BASIS OF SEIZED DOCUMENTS OBSERVED THAT THER E WAS ANOTHER LIST AT PAGE 56 WHICH CONTAINED THE ASSETS OF ASSESSEE TO T HE TUNE OF ITA NOS.192 TO 194 & 370 (ASR)/2013 ASST. YEARS: 2007-08 TO 2010-11 25 RS.1,90,25,000/-. THE ASSESSING OFFICER, THEREFORE, MADE AN ADDITION OF RS.4,86,25,000/- AFTER ALLOWING THE BENEFIT OF RS.2 4,00,000 FOR A PROPERTY WHICH WAS LISTED TWICE IN THE LIST. THE LEARNED CIT (A) HAS MADE A FINDING OF THE FACT THAT SAID ASSET HAS BEEN PURCHASED IN T HE YEARS 1986-1989 ON THE BASIS OF COPIES OF REGISTRATION DEEDS. THE LEAR NED CIT(A) HAS FURTHER MADE A FINDING OF FACT THAT THE LIST OF PROPERTIES CONTAINS UNIDENTIFIED PROPERTIES WHICH HAVE BEEN VALUED WITH NO RELATIONS HIP WITH REGARD TO THE ACTUAL INVESTMENT. THE LEARNED CIT(A) HAD ALSO DIRECTED THE ASSESSING OFFICER TO OBTAIN A REPORT FROM THE OFFI CE OF TEHSILDAR / PATWARI OF REVENUE BRING ON RECORD THE ACTUAL DATES OF PURC HASES OF PROPERTIES. THE ASSESSING OFFICER VIDE HIS REPORT DATED 6.3.201 3 SUBMITTED THE INFORMATION AS OBTAINED FROM THE OFFICE OF TEHSILDA R. THE BULK INFORMATION RECEIVED FROM TEHSILDAR HAS BEEN REPROD UCED BY THE LEARNED CIT(A) AT PAGE 16 TO 17 OF HIS ORDER. THE SAID REPO RT OF TEHSILDAR SENT TO ASSESSING OFFICER WAS CONFRONTED TO THE ASSESSEE. I N THE REPLY TO THE SAID VIDE LETTER DATED 12.03.2013, THE ASSESSEE EXPLAINE D THE DATES OF PURCHASES OF VARIOUS PROPERTIES WHICH THE LEARNED C IT(A) HAS REPRODUCED AT PAGE 18 OF HIS ORDER. FROM THE ABOVE REPLY OF AS SESSEE IT WAS OBSERVED BY LEARNED CIT(A) THAT NO INVESTMENT WAS MADE IN TH E YEAR UNDER CONSIDERATION, THEREFORE, HE HAS RIGHTLY DELETED TH E ADDITIONS AS THE INVESTMENT IN PROPERTIES NEVER BELONGED TO THE YEAR UNDER CONSIDERATION. IN VIEW OF THE ABOVE DETAILED AND EXHAUSTIVE FINDIN GS OF LEARNED CIT(A) IN ITA NOS.192 TO 194 & 370 (ASR)/2013 ASST. YEARS: 2007-08 TO 2010-11 26 RESPECT OF EVERY ADDITION WE DO NOT INTEND TO INTER FERE IN THE ABOVE SAID ORDER, THEREFORE, ALL THE APPEALS FILED BY REVENUE ARE DISMISSED. 22. IN NUTSHELL, THE APPEALS FILED BY REVENUE AS WE LL AS CROSS OBJECTIONS FILED BY ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST JULY, 2016. SD/- SD/- (A.D. JAIN) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 01.07.2016. /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER