Shalendra kumar sharma, Jaipur V. Dcit, Jaipur

ITA 373/JPR/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5438 (ITAT-JAIPUR)
• Duration Of Justice: 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2006-2007
• Appeal Filed On: 21-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B K GUPTA CIT DHK
• Keywords: Loose papers; Document seized; Documents seized
• Section: 153A; 139

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VH-VKJ-EHUK] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF; D LNL; DS LE{K BEFORE: SHRI T.R.MEENA, AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA -@ ITA NO. 373/JP/2015 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2006-07 DR. SHAILENDRA KUMAR SHARMA, H-1, CHITRANJAN MARG, C- SCHEME, JAIPUR. CUKE VS. D.C.I.T. CENTRAL CIRCLE-1, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AFEPS 7340 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MANISH AGARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI B.K. GUPTA (CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 19/01/2016 MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 24/02/2016 VKNS'K@ ORDER PER T.R. MEENA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 25/03/2015 OF THE LEARNED CIT(A)-IV, JAIPUR FOR A.Y. 2006-07. THE EFFECTIVE GROUNDS OF APPEAL ARE AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD. CIT(A) HAS GROSSLY ERRED IN SUSTAINING THE ADDIT IONS OF RS. 15,60,000/- BY ALLEGING THE SAME AS UNDISCLO SED INCOME OF THE ASSESSEE ARBITRARILY. 2 ITA NO. 373/JP/2015 DR. SHAILENDRA KR SHARMA VS DCIT 1.1 THAT THE LD. CIT (A) HAS FURTHER ERRED IN NOT APPRECIATING THE FACT THAT THE AMOUNT GIVEN AS ADVA NCE FOR THE PURCHASE OF FLAT STOOD CANCELLED AND THE MO NEY WAS RECEIVED BACK THUS THE ADDITIONS OF RS. 15,60,000/- SUSTAINED DESERVES TO BE DELETED. 1.2 THAT THE LD. CIT(A) HAS FURTHER ERRED IN CONFIRMI NG THE ACTION OF LD. AO WHO HAS ERRED BY CONSIDERING THE PA RT OF THE FUND FLOW STATEMENT THAT SUITS TO HIM AND DISBELIEVE THE ENTRIES ON HIS OWN WILL WITHOUT BRINGIN G IN RECORD ANY MATERIAL FOUND AS A RESULT OF SEARCH OR OTHERWISE TO SUPPORT HIS CONCLUSION, THUS THE ADDITI ONS SUSTAINED DESERVES TO BE DELETED. 1.3 THAT THE LD. CIT(A) HAS FURTHER ERRED IN IGNORIN G THE FACT THAT THE PROPERTY UNDER' REFERENCE WAS NEVER OWNED BY THE PERSON TO WHOM THE ADVANCE WAS GIVEN AGAINST PROPOSED PURCHASES, THUS THE RECEIPT BACK O F ADVANCE MONEY IS FURTHER CONFIRMED WITH THIS FACT, THEREFORE, THE ADDITION SO SUSTAINED AT RS. 15,60,0 00/- DESERVES TO BE DELETED. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) HAS GROSSLY ERRED IN SUSTAINING THE ADDIT IONS OF RS. 5,00,000/- MADE BY LD. AO AS UNDISCLOSED INCOME ARBITRARILY WITHOUT APPRECIATING THE FACT THA T THE SAME WAS AVAILABLE WITH ASSESSEE AS OPENING BALANCE CARRIED OVER FROM PRECEDING ASSESSMENT YEARS, THUS THE RESULTANT ADDITIONS OF RS. 5,00,000/-, SUSTAINE D DESERVES TO BE DELETED. 2.1 THAT THE LD. CIT(A) HAS FURTHER ERRED IN NOT APPRECIATING THE SOCIAL STATUS AND THE INCOME DECLA RED IN PAST YEARS WHICH WAS AVAILABLE WITH ASSESSEE THUS THE ADDITION OF RS. 5,00,000/- SUSTAINED BY HOLDING THE 3 ITA NO. 373/JP/2015 DR. SHAILENDRA KR SHARMA VS DCIT OPENING CASH BALANCE AS UNEXPLAINED DESERVES TO BE DELETED. 2. THE ASSESSEE IS AN ORTHOPEDIC SURGEON, WHO PROVIDE S PROFESSIONAL SERVICES TO HOSPITALS RUN BY COMPANY OF THE GROUP M /S SHARMA EAST INDIA HOSPITAL AND MEDICAL RESEARCH LTD.. THE ASSESSEE IS ALSO MANAGING DIRECTOR OF THIS COMPANY. THERE WAS A SEARCH SEIZURE OPERATION U/S 132(1) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT ) CARRIED OUT ON 08/6/2011 AT THE DIFFERENT PREMISES OF THE JAIPUR H OSPITAL GROUPS. BUSINESS AND RESIDENTIAL PREMISES OF THE ASSESSEE WE RE ALSO COVERED UNDER THE SEARCH WITH JAIPUR HOSPITAL GROUP. CONSEQU ENT TO SEARCH NOTICE U/S 153A OF THE ACT WAS ISSUED TO THE ASSESSEE. IN R ESPONSE TO NOTICE, THE ASSESSEE FILED RETURN ON 10/9/2013 DECLARING TOTAL INCOME OF RS. 44,95,615/-. EARLIER THE ASSESSEE HAD FILED HIS REG ULAR RETURN U/S 139 OF THE ACT ON 26/7/2006 AT THE TOTAL INCOME OF RS. 5,6 2,475/-. THE RETURN FILED U/S 153A INCLUDED ADDITIONAL INCOME OF RS. 39 ,33,140/- ON ACCOUNT OF UNDISCLOSED CAPITAL GAIN ON SALE OF PROPERTY. 2.1 THE 1 ST GROUND OF THE ASSESSEES APPEAL IS AGAINST SUSTAIN ING THE ADDITION OF RS. 15,60,000/- ON ACCOUNT OF UNDISCLOS ED INCOME, WHICH WAS GIVEN ADVANCES FOR PURCHASE OF FLAT. THE LD ASSESSIN G OFFICER OBSERVED THAT THE FUND FLOW STATEMENT HAD BEEN EXAMINED AND V ERIFIED FROM THE 4 ITA NO. 373/JP/2015 DR. SHAILENDRA KR SHARMA VS DCIT SEIZED DOCUMENT. IT HAS BEEN NOTICED BY THE ASSESSI NG OFFICER THAT THE ASSESSEE HAD INCLUDED AMOUNT OF RS. 15,60,000/- AS CASH RECEIPT ON 15/3/2006 AS CASH RECEIVED BACK FROM MANOJ JI SEIZE D PAPER AT PAGE NO. 10 OF ANNEXURE-A-1, IMPOUNDED FROM JAIPUR NURSING C OLLEGE IS HAVING ENTRY OF CASH PAYMENT AGAINST PURCHASE OF FLAT ON 1 4/2/2006 BUT THERE IS NO ENTRY OF RETURNING BACK OF THIS CASH BY THE ALLE GED SELLER TO THE ASSESSEE. THE ASSESSEE HAS ALSO NOT BEEN ABLE TO PRO DUCE ANY OTHER DOCUMENTARY EVIDENCE OR CONFIRMATION OF REPAYMENT O F CASH BY THE ALLEGED SELLER ON 15/3/2006. THUS, THIS CLAIM OF CAS H RECEIPT FROM MANOJ JI IS NOT ACCEPTABLE. SINCE THE ASSESSEE HAS TAKEN BEN EFIT OF THIS CASH RECEIPT IN HIS FUND FLOW STATEMENT, THEREFORE, HE AS SESSED RS. 15,60,000/- AS ASSESSEES OWN CASH INTRODUCED FROM UNDISCLOSED S OURCE OF INCOME. 3. BEING AGGRIEVED BY THE ORDER OF THE LD ASSESSING OFFICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD CIT(A), WH O HAD CONFIRMED THE ADDITION BY OBSERVING AS UNDER:- 5.4 I HAVE CAREFULLY CONSIDERED THE FINDING OF THE AO AS ALSO THE SUBMISSIONS OF THE APPELLANT. IT MAY NOTED THAT DURING THE ASSESSMENT PROCEEDINGS ON THE BASIS OF REVISED FUND FLOW STATEMENT THE APPELLANT HAS DISCLO SED ADDITIONAL INCOME OF RS. 2013700. ON EXAMINATION OF THE FUND FLOW STATEMENT THE AO NOTED THAT IN SUCH 5 ITA NO. 373/JP/2015 DR. SHAILENDRA KR SHARMA VS DCIT STATEMENT THE APPELLANT HAS SHOWN RECEIPT OF RS. 1560000 ON ACCOUNT OF CASH RECEIVED BACK FROM SH. MANOJ JI AGAINST FLAT NO. 310, SHYAM NAGAR ON ACCOU NT OF CANCELLATION OF THE DEAL. THE AOS CASE IS THAT T HE ENTRY IN RESPECT OF PAYMENT OF RS. 1560000 WAS EVIDENCED IN THE SEIZED RECORD AS PER PAGE 10 OF AN NEX. A-L IMPOUNDED FROM THE PREMISES OF JAIPUR NURSING COLLEGE BUT THERE WAS NO ENTRY OF RECEIVING BACK OF THIS AMOUNT FROM THE SELLER. AS THE APPELLANT CLAIMED RE CEIPT OF RS. 1560000 IN THE FUND FLOW STATEMENT AND SUCH RECEIPT HAS AFFECTED THE QUANTUM OF ADDITIONAL INCO ME DISCLOSED ON THE BASIS OF FUND FLOW STATEMENT, THERE FORE THE AO TREATED SUCH AMOUNT AS OF UNDISCLOSED NATURE BEING INTRODUCED BY THE ASSESSEE. ON THE OTHER HAND THE APPELLANTS CASE IS THAT SUCH AMOUNT WAS ACTUALLY RECEIVED BACK FROM THE SELLER PARTY AS FINALLY SUCH FLAT WAS NOT PURCHASED AND THE DEAL WAS CANCELLED AS ALSO THAT THERE WAS NO OCCASION FOR SH. ASHWANI SHARMA FOR MAKING AN ENTRY TO THIS EFFECT. THE APPELLANT ALSO CONTENDED THAT THE AO COULD HAVE MADE INQUIRY FROM SH. MANOJ JAIN FROM WHOM SUCH AMOUNT WAS RECEIVED BACK AS ALSO INQUIRY COULD HAVE BEEN MADE AS TO WHOM FINA LLY SUCH FLAT WAS SOLD. ON CAREFUL CONSIDERATION OF ALL RELEVANT FACTS IT MAY BE NOTED THAT HE ASSESSEE IS SHOWING RECEIPT OF RS. 1560000 ON 15.3.2006 IN A.Y. 2007-08. THERE IS NO DISPUTE ON THE FACT THAT THE FU ND 6 ITA NO. 373/JP/2015 DR. SHAILENDRA KR SHARMA VS DCIT FLOW STATEMENT PREPARED BY THE ASSESSEE IS BASED ON THE INCRIMINATING PAPERS/ DOCUMENT FOUND DURING THE COU RSE OF SEARCH EXCEPT THE ENTRY OF RS. 156000 SHOWN TO B E AMOUNT RECEIVED ON 15.3.2006 AND OPENING BALANCE OF RS. 5 LAKH SHOWN BY THE ASSESSES. THERE IS ALSO NO DISPUTE ON THE FACT THAT WHEN THE AMOUNT WAS PAID TO THE SELLER PARTY SUCH UNACCOUNTED PAYMENT WAS FOUND RECORDED ON THE INCRIMINATING DOCUMENTS. HOWEVER THE RECEIPT OF SUCH AMOUNT BACK FROM THE ASSESSEE ON 15.3.2006 IS ADMITTEDLY NOT EVIDENCED ON ANY INCRIMINATING PAPER. IT MAY ALSO BE NOTED THAT AS P ER THE SEIZED PAPERS AT PAGE NO. 37 AND 36 THE SELLER PART Y NAMELY SH. MANOJ KUMAR JAIN HAS ADMITTED TO HAVE RECEIVED RS. 1547000 AGAINST THE SALE OF FLAT AND I N THIS DOCUMENT IT IS ALSO' MENTIONED THAT PHYSICAL POSSES SION OF THIS FLAT WAS GIVEN TO SH. ASHWANI KUMAR SHARMA I. E. BROTHER OF THE ASSESSEE. IN ANOTHER PAGE (36 OF ANN EX. A-7) FOUND DURING COURSE OF SEARCH THE ACTUAL PAYME NT AGAINST THIS FLAT WAS SHOWN FOR RS. 1560000 AS ALSO SUBSEQUENTLY THE WHOLE INVESTMENT WAS OWNED BY THE ASSESSEE. THE IMPORTANT POINT TO BE NOTED IS THAT TH E RECEIPT OF RS. 1560000 IS SHOWN BY THE ASSESSEE AND THEREFORE ONUS WAS ON THE ASSESSEE TO PROVE THE SAME AND DEFINITELY SUCH RECEIPT IN A.Y. 2006-07 IS NOT PROVED EITHER BY ANY SEIZED DOCUMENTS OR BY ANY OTHER EVIDENCE. THEREFORE, THE AO HAS RIGHTLY MADE SUCH 7 ITA NO. 373/JP/2015 DR. SHAILENDRA KR SHARMA VS DCIT ADDITION OF RS. 1560000 TO THE TOTAL INCOME OF THE ASSESSEE. 4. NOW THE ASSESSEE IS IN APPEAL BEFORE US. THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS IN ORDER TO AVOID CONFRONTATION WITH THE DEPARTMENT AND ALSO FINDING HIMSELF HELPLESS TO RECONCILE AND CO-RELATE EACH AND EVERY ENTRY AS FOUND NOTED IN THE SEIZED DOCUMENT FROM VARIOUS PLACES SINCE THEY WERE POOLED TOGETHER BY MIXING EACH OTHER AND FINDING IT NOT PRACTICALLY POSSIBLE TO RE-ARRANGE THEM IN SERIATIM AS THEY WERE ORIGINALLY FOUND LYING AT THE TIME OF SEARCH. UNDER THESE CIRCUMSTANCES, IT WAS NOT POSSIBLE TO MA TCH EACH AND EVERY ENTRY WITH THE BOOKS OF ACCOUNTS AND OTHER DOCUMENTS MAINTAINED IN THE REGULAR COURSE OF BUSINESS. THE ASSESSEE OWNED ALL SU CH PAPERS AS BELONGED TO HIM AND HAS RE-COMPUTED THE UNDISCLOSED INCOME FOR THE YEAR UNDER APPEAL BY PREPARING A FUND FLOW STATEMENT INCORPORATING ALL SUCH ENTRIES AND OFFERED AN ADDITIONAL UNDISCLOSED INCOME OF RS. 20,13,700/- RESULTING INTO THE TOTAL UNDISCLOSED IN COME AT RS. 59,46,840/-. HE FURTHER ARGUED THAT DURING THE COURSE OF SURVEY IN A GROUP CONCERN I.E. JAIPUR COLLEGE OF NURSING, CERTAIN LOOSE PAPERS WERE FOUND AND IMPOUNDED, OUT OF WHICH PAGE NO. 10 OF ANX. A-L IS A RECEIPT FOR THE PURCHASES OF A FLAT NO. 301, G-14, JANPATH, SHYAM N AGAR, JAIPUR BY SHRI 8 ITA NO. 373/JP/2015 DR. SHAILENDRA KR SHARMA VS DCIT ASHWINI SHARMA, BROTHER OF THE ASSESSEE FOR TOTAL CO NSIDERATION OF RS. 15,47,000/- FROM ONE SHRI MANOJ JAIN WHICH THE ASSES SEE ADMITTED AS MADE OUT OF HIS UNDISCLOSED INCOME AND TAKEN IN FUN D FLOW STATEMENT. SINCE THE DEAL WAS ULTIMATELY CANCELLED AND THE SAID FLAT WAS NOT PURCHASED BY SHRI ASHWINI SHARMA AND THE PAYMENT AS FOUND NOTED IN THE SEIZED PAPER WAS RECEIVED BACK, THEREFORE, THE RECEI PT BACK IS SUBSEQUENTLY TREATED AS SOURCE IN FUND FLOW STATEMEN T. HOWEVER THE LD. AO AS WELL AS LD. CIT(A) HAD CONFIRMED THE ADDITION B Y OBSERVING THAT VALID SOURCE OF INCOME CLAIMED IN FUND FLOW STATEMEN T WAS NOT FOUND CORRECT TO THEM. DURING THE COURSE OF ASSESSMENT PR OCEEDINGS, THE LD. ASSESSING OFFICER WAS REQUESTED TO GET THE OWNERSHIP OF THE SAID FLAT VERIFIED FROM THE REVENUE RECORD AS TO AFTER A LAPS E OF MORE THAN 8 YEARS AS OF NOW IN WHOSE NAME THE PROPERTY IS BEING CARRIED ON. HE HAS DRAWN OUR ATTENTION ON PAGE NO. 20 OF THE PAPER BOOK, WHIC H WAS A LETTER ADDRESSED TO THE ASSESSING OFFICER DATED 04/2/2014. THE LD ASSESSING OFFICER HAS NOT VERIFIED THE OWNERSHIP OF THE FLAT FROM THE REVENUE RECORD. HE HAS FURTHER DRAWN OUR ATTENTION ON PAGE NO. 18 O F THE PAPER BOOK, WHICH IS ACKNOWLEDGEMENT-CUM-RECEIPT OF RS. 15,47,000 /- FROM SHRI MANOJ JAIN SELLER TO SHRI ASHWANI SHARMA PURCHASER ( BROTHER OF THE ASSESSEE) WHEREIN DR. SHAILENDRA SHARMA (ASSESSEE) A ND SHRI SUBHASH 9 ITA NO. 373/JP/2015 DR. SHAILENDRA KR SHARMA VS DCIT JAIN HAD WITNESSED THE RECEIPT ON 09/6/2011 BUT RECE IPT DATED 14/2/2006, BUT CONTENTION OF CASH RECEIVED BACK OF RS. 16,60,0 00/- HAD NOT BEEN ACCEPTED BY BOTH THE AUTHORITIES ON THAT GROUND THA T CASH RECEIVED BACK HAD NOT FOUND RECORDED IN THE LOOSE PAPER SEIZED DU RING THE COURSE OF SEARCH PROCEEDING. WHEN THE ASSESSEE HAD ALREADY PA ID THE TAX ON THE ADVANCE PAYMENT MADE FURTHER THE TAXATION OF THE RE CEIVING BACK OF THE SAME AMOUNT TANTAMOUNT TO DOUBLE TAXATION OF AN INC OME IN THE YEAR UNDER APPEAL WHERE NO FURTHER APPLICATION IS CLAIMED OUT BY THE ASSESSEE. THEREFORE, HE PRAYED TO DELETE THE ADDITION CONFIRME D BY THE LD CIT(A). 5. AT THE OUTSET, THE LD CIT DR HAS VEHEMENTLY SUPP ORTED THE ORDER OF THE LD CIT(A) AND ARGUED THAT THERE IS NO ENTRY IN T HE SEIZED MATERIAL OF RETURNING BACK THE CASH FROM THE SELLER. THEREFORE, CREDIT FOR RS. 15,60,000/- CANNOT BE GIVEN TO THE ASSESSEE. ACCORD INGLY, HE PRAYED THAT ORDER OF THE LD CIT(A) DESERVED TO BE UPHELD. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE A SSESSEE ARGUED BEFORE THE ASSESSING OFFICER TO ENQUIRE THE MATTER FROM TH E SOCIETY RECORD/FROM THE REGISTRATION DEPARTMENT AND PHYSICAL POSSESSION OF THE FLAT BY CONDUCTING THE ENQUIRY. THE LD ASSESSING OFFICER HAS VARIOUS POWER UNDER 10 ITA NO. 373/JP/2015 DR. SHAILENDRA KR SHARMA VS DCIT THE LAW TO SUMMON THE SELLER TO JUDGE REALITY OF THE TRANSACTION. IT IS UNDISPUTED FACT THAT THERE IS NO ENTRY OF CASH RECE IVED BACK FROM THE SELLER BUT WHEN THE ASSESSEE WAS CLAIMING BEFORE THE LOWER AUTHORITY THAT HE HAD RECEIVED BACK CASH FROM THE SELLER AND DURIN G THE COURSE OF SEARCH AND RECEIPT OF PAYMENT MADE TO THE SELLER WAS FOUND THE SEIZED FROM THE POSSESSION OF THE ASSESSEE. THEREFORE, IN THE INTER EST OF JUSTICE, THIS ISSUE IS SET ASIDE TO THE ASSESSING OFFICER AND IS DIRECT ED TO CONDUCT ENQUIRY ON THIS ASPECT AND DECIDE THE ISSUE AS PER LAW. ACCORDI NGLY, THIS GROUND OF APPEAL IS SET ASIDE TO THE ASSESSING OFFICER FOR DE NOVO. 7. THE 2 ND GROUND OF THE ASSESSEES APPEAL IS AGAINST CONFIRM ING THE ADDITION OF RS. 5 LACS OF NOT ALLOWING OPENING BALAN CE CARRIED OVER FROM PRECEDING ASSESSMENT YEARS. THE LD ASSESSING OFFICER OBSERVED THAT IN FUND FLOW STATEMENT, THE ASSESSEE HAD TAKEN OPENING BALANCE OF RS. 5 LACS IN WHICH NO EXPLANATION WAS GIVEN AS TO FROM WHE RE THIS AMOUNT WAS RECEIVED. DUE TO INCLUSION OF THIS AMOUNT AS OPENIN G BALANCE, THE FIRST NEGATIVE PEAK ON 01/11/2005 WOULD HAVE BEEN OF RS. 1 3,03,700/- AS AGAINST RS. 8,03,700/- ADMITTED IN THE FUND FLOW. THU S, THIS AMOUNT WAS ADDED AS FIRST NEGATIVE PEAK AND ACCORDINGLY HE MAD E ADDITION OF RS. 5 LACS AS UNDISCLOSED INCOME OF THE ASSESSEE. 11 ITA NO. 373/JP/2015 DR. SHAILENDRA KR SHARMA VS DCIT 8. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OF FICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD CIT(A), WHO HAD CONF IRMED THE ADDITION BY OBSERVING AS UNDER:- 6.4 I HAVE CAREFULLY CONSIDERED THE FINDING OF THE ASSESSING OFFICER AS ALSO THE SUBMISSIONS OF THE APPELLANT. TH E FACTS OF THIS ADDITION ARE ALSO BROADLY OF THE SAME NATURE IN AS MUCH AS IN THE FUND FLOW STATEMENT THE ASSESSEE HAS SHOWN OPENING CASH BALANCE AS ON 1.4.2005 OF RS. 5 LAKH. THE AOS CASE WAS THAT THE A S THE AMOUNT OF OPENING CASH WAS NOT FOUND RECORDED IN ANY REGULAR BOOKS OF ACCOUNTS OR THE BALANCE SHEET ETC. THEREFORE THE ASSESSEE CANNOT TAKE CREDIT OF RS. 5 LAKH WHILE PREPARING THE FOUND FLOW STATEMENT ON WHICH BASIS ADDITIONAL INCOME OF RS. 2013700 HAS BEEN OFFERED. ON THE OTHER HAND THE APPELLANTS CASE IS THAT KEEPING IN VIEW THE STATUS OF THE ASSESSEE AS ALSO T HE INCOME SHOWN BY THE ASSESSEE THE POSSIBILITY OF HAVI NG OPENING CAPITAL/ CASH BALANCE OF RS. 5 LAKH SHOULD NOT BE DISPUTED AND THE SAME MAY BE ACCEPTED AS GENUINE. IN THIS CONNECTION IT MAY BE MENTIONED THA T THE FUND FLOW STATEMENT ON WHICH BASIS ADDITION INCOME HAS BEEN DISCLOSED IS PREPARED ON THE BASIS OF TRANSACTIONS NOT FOUND RECORDED IN BOOKS OF ACCOUNT S. IN THIS BACK GROUND THE OPENING BALANCE OF CASH SHO WN AT RS. 5 LAKH WAS ALSO NOT SHOWN IN THE REGULAR BOOK S 12 ITA NO. 373/JP/2015 DR. SHAILENDRA KR SHARMA VS DCIT OF ACCOUNTS AND THEREFORE IT HAS TO BE PART OF THE UNDISCLOSED INCOME AS ANY AMOUNT WHICH IS NOT SHOWN IN REGULAR BOOKS OF ACCOUNTS CANNOT BE CONSIDERED A S EXPLAIN AMOUNT/ INCOME. ACCORDINGLY, THE AO HAS RIGHTLY ADDED SUCH AMOUNT TO THE TOTAL INCOME AND T HE ACTION OF THE AO IS CONFIRMED. 9. NOW THE ASSESSEE IS IN APPEAL BEFORE US. THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE IS A DOCTOR BY PROF ESSION AND WAS AGED ABOUT 52 YEARS INDEPENDENT INCOME FOR PAST MORE THA N 20 YEARS AND WAS REGULARLY FILING THE RETURN OF INCOME. A PERUSAL OF THE BALANCE SHEET SUBMITTED ALONG WITH THIS RETURN WOULD CLEARLY SHOW TH AT AS ON 31.03.2006, THE ASSESSEE HAD CAPITAL WITH HIM AS AN OPENING CAPITAL OF RS. 5,78,511/-, WHICH IS MORE THAN THE AMOUNT TAKEN AS OPENING FUND AVAILABLE. SINCE THIS AMOUNT WAS VISIBLY AVAILABLE WI TH ASSESSEE IN HIS CAPITAL ACCOUNT AS HIS OPENING BALANCE, THEREFORE, THE LD. CIT(A) OUGHT NOT TO HAVE DOUBTED THE GENUINENESS AND CORRECTNESS OF THE FUND FLOW STATEMENT OF ASSESSEE, AS THE AMOUNT OF RS. 5,00,00 0/- WAS ALREADY AVAILABLE WITH THE ASSESSEE IN HIS OPENING BALANCE WH ICH HAS BEEN CARRIED OVER FROM THE PRECEDING ASSESSMENT YEARS, AND SINCE THE FUND WAS AVAILABLE WITH ASSESSEE, SOURCES OF WHICH STANDS PROV ED THEREFORE, THIS ADDITION DESERVES TO BE DELETED. IT IS ALSO SUBMITT ED THAT THE ASSESSEE 13 ITA NO. 373/JP/2015 DR. SHAILENDRA KR SHARMA VS DCIT BEING THE HEAD OF THE FAMILY AND OWNED ALL THE TRANS ACTIONS AS FOUND NOTED IN THE LOOSE PAPERS WHICH INCLUDES THE TRANSAC TIONS ENTERED INTO BY HIS FAMILY MEMBERS THEREFORE, THE CASH AVAILABLE IN THE HANDS OF THE HIS FAMILY MEMBERS AS ON THE OPENING DAY OF THE BLOCK P ERIOD ALSO FORM PART OF ASSESSEES OWN FUND WHICH FACT IS ALSO COMPLETELY IGNORED BY THE LD. CIT(A). THE ASSESSEE HAD WITHDRAWN AS WELL AS HIS FAMIL Y MEMBERS FOR HOUSEHOLD PURPOSES BUT SOMETIME DOES NOT USE FULLY FOR THE HOUSEHOLD PURPOSES AND IT IS A PRACTICE IN HINDU SOCIETY, THE HOUSE WIFE GENERALLY SAVES THE MONEY FROM THE WITHDRAWALS AND PUT AT RESI DENCE FOR EMERGENCY PURPOSES. HE RELIED ON THE DECISION IN TH E CASE OF CIT VS V.P. SINGH 357 ITR 681 (P&H) WHEREIN IT HAS BEEN HELD THAT OPENING BALANCE CANNOT BE TREATED AT UNDISCLOSED INCOME. THEREFORE, HE PRAYED TO DELETE THE ADDITION. 10. AT THE OUTSET, THE LD CIT DR HAS VEHEMENTLY SUPP ORTED THE ORDER OF THE LD CIT(A) AND ARGUED THAT THE OPENING BALANCE AS ON 31/3/2006 THAT CAPITAL ACCOUNT RS. 5,78,511/- OF COURSE IS A CLOSI NG BALANCE OF CAPITAL ACCOUNT OF 31/3/2005 BUT AS PER BALANCE SHEET, THIS CAPITAL ACCOUNT HAD BEEN APPLIED BY THE ASSESSEE IN VARIOUS ASSETS DISC LOSED BY THE ASSESSEE 14 ITA NO. 373/JP/2015 DR. SHAILENDRA KR SHARMA VS DCIT IN THE BALANCE SHEET AS ON 31/3/2006. HE HAS DRAWN O UR ATTENTION ON ASSESSEES PAPER BOOK AT SL NO. 4 AND PRAYED TO CON FIRM THE ADDITION. 11. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IT RE VEALED FROM THE PAPER BOOK THAT THE ASSESSEE HAD MADE WITHDRAWAL IN A.Y. 2 006-07 AT RS. 7,52,493/- FROM THE CAPITAL ACCOUNT. THE DETAILS OF WITHDRAWAL COPY OF ACCOUNT IS NOT FURNISHED BY THE AR, WHICH SHOWS THAT THE ASSESSEE HAD MADE SUBSTANTIAL WITHDRAWAL. IT IS ALSO POSSIBLE IN EARLIER YEARS THAT THE ASSESSEE MADE WITHDRAWALS IN CASH FOR HOUSEHOLD PURPO SES BUT NOT UTILIZED FULLY. THERE IS REASON TO SAVE THE MONEY AT RESIDENCE FOR EMERGENCY PURPOSES. KEEPING IN VIEW OF THAT STATUS O F THE ASSESSEE AND INCOME EARNED BY HIM FROM MEDICAL PROFESSION, THERE IS POSSIBILITY TO SAVE CASH AT RESIDENCE. THEREFORE, THE LD ASSESSING OFFI CER IS DIRECTED TO VERIFY THE PAST CASH WITHDRAWAL IN THREE YEARS FROM THE CAPI TAL ACCOUNT AND OTHER FAMILY MEMBERS TO DECIDE THE CASH AVAILABLE F ROM THE SAVINGS OF THE FAMILY MEMBERS. ACCORDINGLY, THIS ISSUE IS ALSO SET ASIDE TO THE ASSESSING OFFICER. WE DO NOT FIND ANY MERIT IN THE ARGUMENTS OF THE ASSESSEE THAT THE ASSESSEE HAS OPENING CAPITAL AT RS. 5,78,511/- AS SAME HAS BEEN 15 ITA NO. 373/JP/2015 DR. SHAILENDRA KR SHARMA VS DCIT APPLIED BY THE ASSESSEE IN THE ASSETS, WHICH HAS BEE N DISCLOSED IN THE RETURN. ACCORDINGLY, THIS ISSUE IS ALSO SET ASIDE T O THE ASSESSING OFFICER. 12. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 24/02/2016. SD/- SD/- YFYR DQEKJ VH-VKJ-EHUK (LALIET KUMAR) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 24 TH FEBRUARY, 2016 RANJAN* VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- DR. SHAILENDRA KUMAR SHARMA, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE DCIT, CENTRAL CIRCLE-1, JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 373/JP/2015) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR