Vijay Kumar Jain, Ghaziabad V. DCIT, Circle- 2, Ghaziabad

ITA 3794/DEL/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2421 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2011-2012
• Appeal Filed On: 21-05-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SURENDER PAL
• Keywords: Reopening of assessment; Salary income; Source of fund; Tangible material; Reason to believe; Reassessment proceedings; Borrowed satisfaction
• Section: 143(3); 147; 131; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: F, NEW DELHI BEFORE SMT. BEENA A PILLAI, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBE R ITA NO. 3794/DEL/2018 AY: 2011-12 SH. VIJAY KUMAR JAIN KA-49, KAVI NAGAR GHAZIABAD, UP PAN: AAJPJ7167 VS . DCIT, CIRCLE-2 GHAZIABAD (APPELLANT) (RESPONDENT) ASSESSEE BY: SH. ROHIT TIWARI, ADV. DEPARTMENT BY : SH. SURENDER PAL, SR. D.R. DATE OF HEARING: 31.10.2018 DATE OF PRONOUNCEMENT : 13.11.2018 ORDER PER BEENA A PILLAI, JUDICIAL MEMBER 1. PRESENT APPEAL HAS BEEN FILED BY ASSESSEE AGAINST O RDER OF LD. CIT(APPEALS)-2, NOIDA DATED 22.03.2018 FOR A.Y. 2 011-12 ON THE FOLLOWING GROUNDS OF APPEAL: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ORDER PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS) ('CIT(A)') IS BAD IN LAW. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT(A) ERRED IN CONFIRMING THE ACTION OF THE LD. ASSESSING OFFICER ('LD. AO') OF PASSING ORDER U/S 147 INCOME TAX ACT, 1961 ('THE ACT'). THE SAID ORDER PASSED BY THE LD AO IS VOID AB-INITIO ON, INTER ALIA, THE GROUNDS THAT: A) ASSUMPTION OF JURISDICTION UNDER SECTION 148 IS BAD IN LAW AS THE LD. AO DID NOT APPLY HIS MIND ON THE INFORMATION RECEIVED BY THE CBI ITA 3794/DEL/2018 A.Y.:2011-12 SH. VIJAY KUMAR JAIN 2 AND THE REASONS RECORDED BY THE HIM IS NOT VALID; AND B) IT IS BASED ON FACTUALLY ERRONEOUS PREMISES AND BUILT UPON SURMISES AND CONJECTURES. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN CONFIRMING THE ACTION OF THE LD. AO IN MAKING AN ADDITION OF RS.L,40,00,0001- UNDER SECTION 69A OF THE ACT. 3.1 THE LD. AO AND THE LD. CIT(A) ERRED IN IGNORING THE FACT THAT THE AFORESAID AMOUNT WAS RECEIVED BY THE APPELLANT AS ADVANCE AGAINST HIS PROPERTY AND IN HOLDING THAT THE AFORESAID AMOUNT BELONGS TO THE APPELLANT. 3.2 THE LD. AO AS WELL AS THE LD. CIT(A) ERRED IN IGNORING THE FACT THAT THERE WAS VOLUNTARY ADMISSION AND WRITTEN STATEMENT GIVEN UNDER SECTION 131 OF THE ACT BY TWO INDEPENDENT PERSON WHO JOINTLY HAD GIVEN THE SAID SUM OF RS. 1,40,00,000/- AS ADVANCE AGAINST THE PROPERTY OF THE APPELLANT. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN CONFIRMING THE ACTION OF THE LD. AO IN MAKING AN ADDITION OF RS. 13,42,000/- OUT OF RS. 68,42,0001- WHICH WAS FOUND IN THE LOCKERS OF THE APPELLANT UNDER SECTION 69A OF THE ACT. 4.1 THAT THE LD. AO AND THE LD. CIT(A) FAILED TO APPRECIATE THAT THE ENTIRE AMOUNT OF RS. 68,42,000/- WAS KEPT IN THE LOCKERS AS PER THE WILL OF THE LATE FATHER OF THE APPELLANT. 4.2 THAT THE LD. AO HAS PARTIALLY ACCEPTED THE WILL AND HELD THAT RS.13,42,000/- BELONGS TO THE APPELLANT AND 55,06,0001- BELONGS TO THE LATE FATHER OF THE APPELLANT. 4.3 THE LD. AO AND LD. CIT(A) ACCEPTED THAT RS. 55,00,000/- BELONGS TO THE LATE FATHER AND IGNORED THE FACT THERE IS ALSO A MENTION IN THE SAME WILL THAT RS.12,00,000/- TO 15,00,000/- WAS GIVEN TO THE APPELLANT TIME TO TIME FOR HIS FAMILY MEMBERS. 4.4 THE LD. AO AND THE LD. CIT(A) HAVE TAKEN A SELF CONTRADICTORY VIEW BY ACCEPTING RS. 55,00,000/- AND NOT ACCEPTING RS. 13,42,000/- OUT OF THE TOTAL AMOUNT OF RS. 68,42,000/- WHICH WAS KEPT IN THE LOCKERS OF THE APPELLANT. ITA 3794/DEL/2018 A.Y.:2011-12 SH. VIJAY KUMAR JAIN 3 5. THAT ON THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT(A) ERRED IN NOT FOLLOWING THE JUDICIAL PRECEDENTS AVAILABLE IN THIS REGARD. THAT THE APPELLANT RESERVES ITS RIGHT TO ADD, ALTER, AMEND OR WITHDRAW ANY GROUND OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF THIS APPEAL. 2. BRIEF FACTS OF THE CASE ARE AS UNDER : ASSESSEE IS AN INDIVIDUAL, FORMER EXECUTIVE DIREC TOR OF NHPC. FOR THE YEAR, HE WAS WORKING WITH PMC PROJECTS INDIA LI MITED AND ADANI POWER LIMITED HAVING SALARY INCOME OF RS 8152513/-. CBI CONDUCTED SEARCH ON 11/02/2011 AT PREMISES OF ASSES SEE AND SEIZED INR 2,10,56,500/-AND USD 40,000. ON RECEIV ING INFORMATION FROM OFFICE OF CBI, THE CASE OF ASSESSE E WAS REOPENED UNDER SECTION 147 OF THE INCOME TAX ACT, 1961 (THE ACT), BY ISSUING NOTICE UNDER SECTION 148 OF THE ACT ON 11/03/2015 . IN RESPONSE TO THE NOTICE ORIGINAL RETURN FILED DECLARING INCOM E OF RS.85,83,482/- ON 28/03/12, WAS REQUESTED TO BE CONSIDERED AS RETU RN IN RESPONSE. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ASSESS EE WAS ASKED TO EXPLAIN SOURCE OF RS. 2.10 CRORE AND USD 40,000 SEIZED BY CBI. ASSESSEE SUBMITTED THAT OUT OF TOTAL CASH FOUND AND SEIZED, CASH AMOUNTING TO RS. 1.40 CRORES WAS RECEIVED FROM SH. K. K. AGARWAL, TOWARDS SALE AGREEMENT OF PROPERTY SITUATED AT KAVI NAGAR, GHAZIABAD. ASSESSEE SUBMITTED THAT SOURCE OF FUNDS BY SHRI K.K. AGARWAL WAS THROUGH TWO COMPANIES CONTROLLED BY SHR I VIPIN GUPTA, WHEREIN RS. 30 LAKHS HAS BEEN GIVEN FROM M/S ALLIAN Z FASHION PVT. LTD. AND RS. 70 LAKHS HAS BEEN GIVEN FROM M/S DOLPH IN FABRICS PVT. LTD. ASSESSEE SUBMITTED COPY OF BALANCE SHEET OF T HOSE COMPANIES, FOR ASSESSMENT YEAR 201112, WHEREIN, IN LOANS AND ADVANCES, PAYMENT OF RS. 30 LAKHS AND RS. 70 LAKHS RESPECTIVE LY WAS SHOWN IN THE NAME OF SHRI K.K. AGARWAL. PAYMENT VOUCHERS WE RE ALSO PRODUCED AND RETURN OF INCOME OF THOSE COMPANIES WA S ALSO PRODUCED BEFORE THE LD. AO. ITA 3794/DEL/2018 A.Y.:2011-12 SH. VIJAY KUMAR JAIN 4 2.1 SUMMONS U/S 131 OF THE ACT WAS ISSUED TO SHRI K.K. AGARWAL, WHO EXPLAINED SOURCES OF FUND IN HIS STATEMENT. REGARD ING BALANCE RS.40 LAKHS, SRI KK AGRAWAL EXPLAINED THAT HE HAS W ITHDRAWN THE SAID SUM FROM HIS BANK ACCOUNT. TO SUBSTANTIATE TH E SAME, HE SUBMITTED THAT HE IS HAVING PROFITS OF APPROXIMATEL Y 6 LAKHS AND AN APPROXIMATE TURNOVER IS OF RS.13 CRORE. HE SUBMITT ED DETAILS OF BALANCE SHEET, WHEREFROM HE HAS WITHDRAWN RS. 40 LA KHS AND GIVEN TO ASSESSEE. 2.2 SHRI VIPIN GUPTA WAS ALSO EXAMINED UNDER SECTION 13 1 OF THE INCOME TAX ACT, WHO CONFIRMED THE FUNDS HAVING ADVA NCED TO SHRI K.K. AGARWAL. 2.3 LD. AO REJECTED CONTENTION OF ASSESSE. THE MAIN RE ASON FOR REJECTION OF ARGUMENT ADVANCED BY ASSESSEE IS THAT, ACCORDING TO LD. AO, MARKET VALUE OF PROPERTY WAS RS. 80,26,425/ AND FURTHER THE AMOUNT OF CASH FOUND AGAINST THE ABOVE PROPERTY IS RS. 1.40 LAKHS. FOR THIS, ASSESSEE EXPLAINED THAT TOTAL SAL E CONSIDERATION AGREED FOR PURPOSE OF SALE OF THE PROPERTY WAS RS. 2.90 CRORES WHEREAS ONLY RS. 1.40 CRORES WAS PAID BY BUYER (SH. K.K. AGARWAL) AGAINST AGREEMENT TO SELL OF PROPERTY, AND BALANCE SUM WAS REQUIRED TO BE PAID AT THE TIME OF REGISTRATION OF DOCUMENTS. IT WAS SUBMITTED THAT DUE TO CERTAIN DISPUTES, CONSEQUENT TO SEARCH BY CBI, SH. K.K. AGARWAL WAS NOT WILLING TO BUY THE PR OPERTY. THEREFORE, SUM OF RS. 1.40 LAKHS WAS REPAID, THE DE TAIL OF WHICH WAS SUBMITTED BEFORE LD. AO. LD. AO REJECTED THIS ARGU MENT. 2.4 LD. AO WAS FURTHER OF VIEW THAT, ASSESSEE FAILED TO ESTABLISH CREDITWORTHINESS AND GENUINENESS OF TRANSACTIONS WI TH SHRI K.K. AGARWAL. LD. AO REJECTED ARGUMENT OF ASSESSEE BECA USE ASSESSEE DID NOT PRODUCE LEDGER COPY OF SRI KRISHNA AGENCIES (CONCERN OF SH. K.K. AGARWAL) AND COPY OF BANK STATEMENT OF PREVIOU S YEAR, THROUGH WHICH PAYMENT WAS MADE TO SHRI K.K. AGARWAL IN VIEW OF TRADING LIABILITY WITH HIM. LD. AO, THUS, MADE ADDITION OF RS. 1.40 CRORES UNDER SECTION 69A OF THE INCOME TAX ACT. ITA 3794/DEL/2018 A.Y.:2011-12 SH. VIJAY KUMAR JAIN 5 2.5 LD. AO THEN OBSERVED THAT REMAINING AMOUNT OF RS. 6 8.42 LAKHS WAS SEIZED FROM VARIOUS LOCKERS OF ASSESSEE BY CBI. ASSESSEE SUBMITTED THAT ASSESSEE UNDER WILL RECEIVED ENTIR E MONEY. ASSESSEE SUBMITTED THAT HIS LATE FATHER SHRI ROSHAN LAL JAIN EXECUTED A WILL IN 2008, WHEREIN CASH OF RS. 55 L AKHS WAS BEQUEATHED TO ASSESSEE, OUT OF TOTAL CASH SEIZED OF RS. 68.42 LAKHS. ASSESSEE FURTHER EXPLAINED THAT RS. 12 TO 15 LAKHS WAS GIVEN BY GRANDFATHER OF ASSESSEE TO THE PARENTS OF ASSESSEE, WHICH WAS NOT TAKEN INTO CONSIDERATION. THEREFORE, ASSESSEE SUBM ITTED THAT OUT OF TOTAL 68.42 LAKHS, RS. 55 LAKHS IS PART OF WILL EXE CUTED BY FATHER OF ASSESSEE AND BALANCE WAS RECEIVED FROM HIS GRANDFAT HER, THROUGH HIS PARENTS. AO REJECTED EXPLANATION OFFERED BY AS SESSEE AND HELD THAT OUT OF RS. 68.42 LAKHS SEIZED RS. 55 LAKHS IS PART OF WILL OF FATHER OF ASSESSEE AND MADE ADDITION OF BALANCE SUM OF RS. 1,342,000/-. LD. AO THUS, MADE ADDITION OF RS.13,4 2,000/-AS UNEXPLAINED MONEY UNDER SECTION 69A OF THE ACT. 3. AGGRIEVED BY ADDITIONS MADE BY LD.AO ASSESSEE PREFE RRED APPEAL BEFORE LD. CIT (A) ON ISSUE OF REOPENING OF ASSESSM ENT, AS WELL AS ON MERITS OF ADDITIONS. LD. CIT(A) UPHELD ISSUE OF REOPENING OF ASSESSMENT AND ALSO CONFIRMED ADDITION SO MADE IN A SSESSMENT ORDER. 4. AGGRIEVED BY ORDER OF LD.CIT (A) ASSESSEE IS IN APP EAL BEFORE US NOW. 5. AT THE OUTSET LD. COUNSEL SUBMITTED THAT GROUND NO. 1 IS GENERAL IN NATURE AND THEREFORE DO NOT REQUIRE ADJUDICATION . 6. GROUND NO. 2 IS IN RESPECT OF CHALLENGE RAISED BY ASSESSEE AGAI NST INITIATION OF PROCEEDINGS UNDER SECTION 147 OF THE ACT AS VOID AB INITIO. LD. COUNSEL SUBMITTED THAT LD. A.O. ASSUMED WRONG JURISDICTION UNDER SECTION 148, AND ENTIRE PROCEEDI NGS ARE BAD IN LAW. IN SUPPORT OF HIS ARGUMENT, HE SUBMITTED THAT INFORMATION BASED UPON WHICH REOPENING HAS BEEN INITIATED BY LD . AO IS CBI REPORT. REFERRING TO CBI REPORT PLACED AT PAGE 145- 194 OF PAPER ITA 3794/DEL/2018 A.Y.:2011-12 SH. VIJAY KUMAR JAIN 6 BOOK LD. COUNSEL SUBMITTED THAT REASON TO BELIEVE O F INCOME HAVING ESCAPED ASSESSMENT, DOES NOT EMANATE FROM THE REASO NS RECORDED. HE SUBMITTED AS UNDER: SL. NO. INFORMATION RECEIVED FROM CBI BY THE LD.AO ADDITION MADE BY THE LD.AO I. CASH SEIZED OF INR 1.40 CRORES FROM THE RESIDENCE OF THE APPELLANT. ADVANCE OF INR 1.40 CRORES WAS RECEIVED FROM MR. KK AGARWAL AGAINST THE AGREEMENT TO SALE OF PROPERTY AT KAVI NAGAR GHAZIABAD. ADDITION OF INR 1.40 CRORES WAS MADE U/S 69A AS UNEXPLAINED MONEY. II. INR 68.42 LAKHS RECEIVED FROM VARIOUS LOCKERS OF ASSESSEE. THE LD.AO ACCEPTED THE CONTENTION THAT THE APPELLANT UNDER THE WILL HAS RECEIVED THE AMOUNT, HOWEVER, HELD THAT SH.ROSHAN LAL JAIN HAS GIVEN THE CASH ONLY TO THE TUNE OF RS.55 LAKHS BUT THE CASH SEIZED IN THE LOCKERS ARE RS.68.42. THE LD.AO REFUSED TO CONSIDER THE AMOUNT OF RS.12-15 LAKHS, WHICH WAS ALSO MENTIONED IN THE SAME WILL ON THE GROUND THAT IT WAS NOT MENTIONED IN THE WILL THAT THIS AMOUNT WILL BE KEPT IN BANK LOCKER. THUS MADE AN ADDITION OF RS.13.42 LAKHS (RS.68.42 LAKHS LESS RS.55 LAKHS). ADDITION OF RS.13.42 LAKHS. III. US $ 40,000/- WAS FOUND AND SEIZED FROM THE POSSESSION OF THE ASSESSEE. LD.AO ACCEPTED THE CONTENTION OF THE APPELLANT. NO ADDITION WAS MADE. 7. LD. COUNSEL SUBMITTED THAT LD. AO PROCEEDED MERELY ON BASIS OF REPORT FROM CBI, AND THERE IS NO INDEPENDENT FINDIN G BY LD. AO REGARDING ESCAPEMENT OF INCOME. HE SUBMITTED THAT NO FURTHER EFFORTS HAVE BEEN MADE BY LD.AO IN ORDER TO ASCERTA IN THAT INCOME HAS REALLY ESCAPED ASSESSMENT. LD. COUNSEL PLACED R ELIANCE UPON ITA 3794/DEL/2018 A.Y.:2011-12 SH. VIJAY KUMAR JAIN 7 DECISIONS OF HONBLE DELHI HIGH COURT IN THE CASE OF PR.CIT VS. MEENAKSHI OVERSEAS PVT.LTD. , REPORTED IN (2017) 82 TAXMANN.COM 300 AND SABH INFRASTRUCTURE LTD VS. ACIT IN WRIT PETITION NO. 1357/2016 VIDE ORDER DATED 25/09/17. 7.1 LD. COUNSEL SUBMITTED THAT SINCE THERE WAS NO INDEP ENDENT APPLICATION OF MIND BY LD.AO ON MATERIAL, REASONS R ECORDED FAILS TO DEMONSTRATE LINK BETWEEN TANGIBLE MATERIAL AND FORM ATION OF REASON TO BELIEVE, THAT INCOME HAS ESCAPED ASSESSMENT. HE FURTHER SUBMITTED THAT THERE IS NO LIVE LINK BETWEEN REASON S RECORDED FOR REOPENING. HE FURTHER SUBMITTED THAT REOPENING HAS BEEN INITIATED MERELY TO MAKE FURTHER INVESTIGATION AND ROWING ENQ UIRIES, WHICH IS NOT PERMITTED. TO SUBSTANTIATE HIS ARGUMENTS, HE S UPPORTED THEM WITH THE JUDICIAL PRECEDENTS. HE THUS SUBMITTED THA T LD.A.O, DO NOT HAVE JURISDICTION TO INVOKE RE-ASSESSMENT PROCEEDIN GS IN PRESENT FACTS OF THE CASE. 8. LD. SR. DR SUBMITTED THAT REOPENING IS VALID. HE S UBMITTED THAT ASSESSEE FILED ORIGINAL RETURN OF INCOME U/S 139(1) OF THE ACT IN WHICH SUM SEIZED AND FOUND BY CBI WAS NOT DISCLOSED . THEREFORE, RS. 2.10 CRORE FOUND DURING COURSE OF SUCH IS A LIV E LINK OF ESCAPEMENT OF INCOME, WHICH STOOD UNDISCLOSED IN RE TURN OF INCOME. HE SUBMITTED THAT LD. AO APPLIED HIS MIND AND NOTED THAT THERE IS ESCAPEMENT OF INCOME. HE FURTHER STATED THAT ORIGI NAL RETURN OF INCOME WAS NOT ASSESSED UNDER SECTION 143 (3) OF AC T. IT WAS PROCESSED UNDER SECTION 143 (1) OF THE ACT. LD. AO THEN VERIFIED RETURN OF INCOME ORIGINALLY FILED BY ASSESSEE AND T HEN CONCLUDED THAT THERE IS ESCAPEMENT OF INCOME. AMOUNT OF RS. 2.10 CRORE WAS FOUND TO HAVE BEEN NOT DISCLOSED IN ORIGINAL RETURN FILED BY ASSESSEE, THAT WAS SEIZED BY CBI AND, THEREFORE, TH ERE IS A LIVE LINK BETWEEN MATERIAL AND ESCAPEMENT OF INCOME. 8.1 LD. SR. DR SUBMITTED IT WAS NOT THE INTENTION OF LD . AO TO MAKE FURTHER INVESTIGATION, OR ROWING ENQUIRIES, BUT TO MAKE SPECIFIC INVESTIGATION AND ENQUIRIES, WITH RESPECT TO AMOUNT OF RS. 2.10 ITA 3794/DEL/2018 A.Y.:2011-12 SH. VIJAY KUMAR JAIN 8 CRORE FOUND DURING COURSE OF SEARCH BY CBI. HE THU S, SUBMITTED THAT REOPENING IS VALID. IT WAS ALSO ARGUED BY LD. SR. DR THAT WHEN SUCH HUGE AMOUNT OF CASH IS SEIZED FROM A SALARIED PERSON, WHICH DO NOT FORM PART OF ORGINAL RETURN OF INCOME, ASSES SING OFFICER IS ONLY REQUIRED TO ARRIVE AT A PRIMA FACIE REASONABLE BELIEF OF INCOME HAVING ESCAPED ASSESSMENT. HE IS NOT SUPPOSED TO R EACH AT A CONCLUSION AT THE TIME OF RECORDING OF REASONS. HE SUBMITTED, THAT WHEN THERE IS CASH AVAILABLE, WHICH IS NOT DISCLOSE D IN BOOKS OF ACCOUNTS WHICH ARE NOT AT ALL MAINTAINED BY ASSESSE E AND WHICH ARE NOT ATTACHED WITH RETURN OF INCOME IT CANNOT BE SAI D THAT LD. AO DID NOT HAVE ANY REASON TO BELIEVE REGARDING ESCAPEMENT OF INCOME. THEREFORE, ACCORDING TO HIM REOPENING WAS VALID. 9. WE HAVE PERUSED SUBMISSIONS ADVANCED BY BOTH SIDES IN THE LIGHT OF RECORDS PLACED BEFORE US. THE FACT ITSELF REVEALS THAT SEARCH OPERATION WAS CARRIED OUT BY CENTRAL BUREAU OF INVE STIGATION ON 11/2/2011 AT PREMISES OF ASSESSEE AND CASH OF RS. 2 ,10,56,500/ AND US 40, 000 WAS FOUND AND SEIZED FROM POSSESSION OF ASSESSEE. LD. AO RECORDED REASON, WHICH IS PLACED AT PAGE NUM BER 17 OF PAPER BOOK. ADMITTEDLY SEIZURE OF CASH BY CBI WA S NOT MENTIONED BY ASSESSEE IN ORIGINAL RETURN OF INCOME AND, THERE FORE PRIMA FACIE IT APPEARS THAT, SAID AMOUNT HAS NOT BEEN DISCLOSED BY ASSESSEE FOR INCOME TAX PURPOSES. THEREFORE, LD. AO FORMED REAS ON TO BELIEVE THAT THERE IS A NEED TO VERIFY THE SOURCE OF RS. 2, 10,56,500/- AND US$ 40,000. IN OUR CONSIDERED OPINION, REASONS REC ORDED BY LD. AO DOES NOT SUFFER FROM ANY INFIRMITY AS LD. AO VERIFI ED ORIGINAL RETURN FILED BY ASSESSEE U/S 139(1) OF THE ACT ON THE BASI S OF CBI REPORT. LD. AO THEN UPON VERIFICATION OF RETURN OF INCOME, FOUND THAT SEIZED AMOUNT HAS NOT BEEN DISCLOSED FOR THE INCOME TAX PU RPOSES. THEREFORE, HE HAD REASONS TO BELIEVE THAT THERE IS ESCAPEMENT OF INCOME. 9.1 THUS, IN OUR CONSIDERED OPINION, THERE IS LIVE LINK OF CASH FOUND AND SEIZED DURING COURSE OF SEARCH, WITH REASONS RECORD ED BY LD. AO. IT ITA 3794/DEL/2018 A.Y.:2011-12 SH. VIJAY KUMAR JAIN 9 CANNOT BE CONSIDERED AS A BORROWED SATISFACTION THE REPORT OF CBI. LD. AO MADE HIS DETAILED ENQUIRY BY VERIFYING RETUR N OF INCOME, WHERE HE DID NOT FIND DISCLOSURE WITH RESPECT TO AB OVE CASH FOUND. THEREFORE, ACCORDING TO US, THERE IS NO INFIRMITY I N THE REOPENING OF THE ASSESSMENT UNDER SECTION 147 OF THE ACT. 9.2 REGARDING VARIOUS JUDICIAL PRECEDENT CITED BY LD. COUNSEL, FIRST WE CONSIDER THE DECISION IN CASE OF ASHIMA SECURITIES PVT. LTD. VS ITO ITA NO. 3400 AND 3401/DEL/2013 DATED 20 TH 9/9/2017, WHEREIN, IT HAS BEEN STATED THAT AO CANNOT MAKE FURTHER INVESTI GATION AND ROWING ENQUIRIES. WE HAVE CAREFULLY PERUSED THE DE CISION AND FOUND THAT IN PRESENT CASE BEFORE US, THERE IS VALUABLE M ATERIAL AVAILABLE WITH LD. AO OF CASH SEIZED BY CBI AND, THEREFORE, I T CANNOT BE SAID THAT THERE IS ANY ABSENCE OF ANY VALUABLE MATERIAL AVAILABLE WITH LD. AO. IN VIEW OF THIS, THE ABOVE DECISIONS CITED DO NOT APPLY TO FACTS OF PRESENT CASE. 9.3 NEXT DECISION CITED BY LD. COUNSEL IS OF HONBLE GUJARAT HIGH COURT IN CASE OF KRUPESH G THAKKAR V. DEPUTY COMMISSIONER OF INCOME TAX 77 TAXMANN.COM 293 , WHEREIN, IT HAS BEEN STATED THAT, UNDER GUISE OF REOPENING OF ASSESSMENT, ASSESSING OFFICER CANNOT MAKE ROWING ENQUIRY. WE HAVE CAREFULLY PERUSED ABOVE DE CISION AND FOUND THAT IN THAT PARTICULAR CASE ASSESSING OFFICE R DID NOT HAVE ANY TANGIBLE MATERIAL TO FORM AN OPINION OF INCOME CHAR GEABLE TO TAX HAVING ESCAPED ASSESSMENT. HOWEVER, IN PRESENT FAC TS OF CASE BEFORE US, HUGE CASH WAS FOUND FROM ASSESSEE WHO IS DERIVING INCOME UNDER THE HEAD SALARY. IN VIEW OF THIS, A BOVE DECISION DOES NOT FIT INTO THE FACTS OF THE PRESENT CASE. 9.4 NEXT DECISION RELIED UPON BY LD. COUNSEL IS WIT H RESPECT DECISION BY HONBLE DELHI HIGH COURT IN CASE OF CIT VS MINAKSHI OVERSEAS PVT. LTD. 82 TAXMANN.COM 300 (DELHI) , WHEREIN IT HAS BEEN HELD THAT, WHERE THERE WAS NO INDEPENDENT APPLICATION OF MIND BY ASSESSING OFFICER TO TANGIBLE MATERIAL AND THAT CONCLUSION OF ASSESSING OFFICER WAS MERE REPRODUCTION OF CONCLUSION IN INVESTIGATIO N REPORT, REASONS ITA 3794/DEL/2018 A.Y.:2011-12 SH. VIJAY KUMAR JAIN 10 FAILED TO DEMONSTRATE LINK BETWEEN TANGIBLE MATERIA L AND FORMATION OF REASON TO BELIEVE THAT INCOME ESCAPED ASSESSMENT , AND CONSEQUENTLY REASSESSMENT WAS NOT JUSTIFIED. 9.5 IN THE PRESENT CASE BEFORE US, CBI REPORT ALREA DY EXONERATED ASSESSEE WITH RESPECT TO CASH FOUND AND SEIZED, THE REFORE, IT CANNOT BE SAID THAT ASSESSING OFFICER HAVE RELIED UPON ANY CONCLUSION IN INVESTIGATION REPORT OF CBI. FURTHER IN PRESENT CA SE; LD. AO HAD TANGIBLE MATERIAL IN FORM OF HUGE OF CASH FOUND BY CBI AND UPON VERIFICATION RETURN OF INCOME FOUND TO BE UNDISCLOS ED IN THE HANDS OF ASSESSEE WHO IS DERIVING ONLY SALARY INCOME AND, TH EREFORE, THERE IS A LIVE LINK BETWEEN TANGIBLE MATERIAL AND FORMATION OF REASON TO BELIEVE BY LD. AO AS ABOVE CASH WAS NOT DISCLOSED I N RETURN OF INCOME FILED BY ASSESSEE. IN VIEW OF THIS, WE ARE OF THE VIEW THAT ABOVE DECISIONS CITED BY LD. COUNSEL DOES NOT APPLY TO FACTS OF PRESENT CASE. 9.6 IN THE CASE CITED BEFORE US, THERE WAS NO REFER ENCE OF VERIFICATION OF INFORMATION RECEIVED FROM INVESTIGATION WING WITH R ETURN OF INCOME OF ASSESSEE. IN THE PRESENT CASE BEFORE US, LD. AO VERIFIED ORIGINAL RETURN OF INCOME FILED BY THE ASSESSEE WHERE HE DID NOT FIND THE AMOUNT OF CASH SEIZED BY CBI. 9.7 NEXT DECISION RELIED UPON BY LD. COUNSEL WAS WITH R ESPECT TO SAB INFRASTRUCTURE LTD VS ACIT (SUPRA) . 9.8 WE HAVE PERUSED FACTS OF THE CASE AND FOUND THAT IT IS ALSO NOT APPLICABLE TO FACTS OF CASE BEFORE US. IN THAT PAR TICULAR CASE, LD. AO RECORDED REASON MERELY BASED ON REPORT OF INVESTIGA TION WING. THERE WAS NO VERIFICATION OF RETURN FILED BY ASSESS EE. THERE WAS ALSO NO REFERENCE, THOUGH ASSESSMENT IN THAT CASE W AS MADE UNDER SECTION 143(3) OF THE ACT. IN VIEW OF THESE FACTS OF SAID DECISION, FACTS BEFORE US ARE CLEARLY DISTINGUISHABLE. 9.9 CONTRARY TO THAT LD. SR. DR REFERRED DECISION OF SONY INDIA VS. ACIT DATED 10/9/2018 AND SUBMITTED THAT IN THE PRESENT CASE, THERE WAS NO ASSESSMENT MADE UNDER SECTION 143(3) OF THE ACT AND MERELY ITA 3794/DEL/2018 A.Y.:2011-12 SH. VIJAY KUMAR JAIN 11 RETURN WAS PROCESSED THEREFORE ON VERIFICATION OF R ETURN. IT WAS FOUND THAT ASSESSEE HAS NOT DISCLOSED THE ABOVE SUM SEIZED FROM HIM. IT WAS FURTHER STATED THAT HONBLE SUPREME COURT IN 203 ITR 456 IN PHOOL CHAND BAJRANG LAL VS INCOME TAX OFFICE R HAS EMPHASISED ON VERACITY OF INFORMATION SUPPLIED DURI NG COURSE OF REGULAR ASSESSMENT. THEREFORE, HE SUBMITTED THAT W HEN INFORMATION HAS BEEN RECEIVED FROM CBI ABOUT SEIZURE OF HUGE CA SH, WHICH WAS NOT DISCLOSED IN RETURN OF INCOME OF ASSESSEE, REOP ENING HAS BEEN CORRECTLY INITIATED BY LD. AO. 9.10 THEREFORE ON APPRECIATION OF FACTS IN CASE OF PRESE NT ASSESEE AND THAT ASSESSEE IS A SALARIED PERSON WHO WAS SEARCHED BY CBI FROM WHOM CASH WAS FOUND AND SEIZED WHICH, WAS NOT DISCL OSED IN RETURN OF INCOME FILED BY ASSESSEE, WE DO NOT FIND ANY INF IRMITY IN ACTION OF LD. AO IN INITIATING REASSESSMENT PROCEEDINGS UNDER SECTION 147 OF THE ACT. THE CIT(A) RIGHTLY UPHELD REASSESSMENT PR OCEEDINGS. ACCORDINGLY, GROUND NUMBER 2 RAISED BY ASSESSEE STA NDS DISMISSED. 10 GROUND NO. 3 IS IN RESPECT OF ADDITION MADE BY LD.AO OF RS.1,40,00,000/-, UNDER SECTION 69A OF THE ACT. DU RING COURSE OF ASSESSMENT PROCEEDINGS, ASSESSEE EXPLAINED THE SOUR CE OF RS. 2.10 CRORES. ASSESSEE SUBMITTED THAT RS. 1.40 CRORES IS RECEIVED AGAINST PROPOSED SALE OF PROPERTY. WITH RESPECT TO THE ADVA NCE RECEIVED AGAINST SALE OF PROPERTY, ASSESSEE SUBMITTED THAT R S. 1 CRORE HAS BEEN RECEIVED BY PURCHASER SHRI K.K. AGARWAL FROM T WO COMPANIES ASSESSEE SUBMITTED THEIR BALANCE SHEETS, WHERE THE SUMS WERE DISCLOSED AS ADVANCE PAID TO KISHAN KISHORE AGARWAL . LD. AO MADE ADDITION, WHICH WAS CONFIRMED BY LD. CIT(A). 11 LD. COUNSEL SUBMITTED THAT SUM OF RS.1.40 CRORES SE IZED DURING COURSE OF SEARCH, CONDUCTED BY CBI FROM ASSESSEES PREMISES, WAS RECEIVED AS ADVANCE FROM MR K.K AGGARWAL, AGAINST A GREEMENT OF SALE OF PROPERTY AT KAVI NAGAR, GHAZIABAD. HE SUBMI TTED THAT TRANSACTION HAS BEEN PROPERLY SCRUTINISED BY CBI AN D HAS BEEN ITA 3794/DEL/2018 A.Y.:2011-12 SH. VIJAY KUMAR JAIN 12 EXCLUDED FROM COMPUTATION OF DISPROPORTIONATE ASSET S. IT HAS BEEN CONTENDED THAT SH. KK AGGARWAL IN HIS STATEMENT REC ORDED WITH CBI, CONFIRMED THAT HE RECEIVED RS.1 CRORE FROM SH. VIPIN GUPTA, WHICH HAS BEEN ADVANCED BY HIM FROM TWO COMPANIES, WHERE SH.VIPIN GUPTA IS A DIRECTOR. HE FURTHER STATED TH AT SHRI VIPIN GUPTA WAS ALSO EXAMINED UNDER SECTION 131 OF THE AC T REGARDING THE SAME. IT WAS SUBMITTED THAT REMAINING 40 LAKHS HAS BEEN TAKEN OUT FROM ACCOUNT OF SHRI KK AGGARWAL, WHO WAS CARRYING ON BUSINESS AS A PROPRIETOR. IT WAS STATED THAT HIS T URNOVER WAS APPROXIMATELY 13 CRORES. LD. COUNSEL PLACING RELIAN CE UPON PAGE 44 AND PAGE 52 OF PAPER BOOK WHEREIN A SUM OF RS.30 LA KHS AND 70 LAKHS HAS BEEN ADVANCED FROM M/S ALLIANCE FASHIONS PVT. LTD AND M/S DOLPHIN FABRICS PVT.LTD TO SH.K.K AGGARWAL, RES PECTIVELY. HE FURTHER SUBMITTED THAT AS DEAL COULD NOT MATERIALIS E, BECAUSE OF CBI SEARCH SAID AMOUNT HAS BEEN RETURNED BACK IN SUBSEQ UENT YEARS BY ASSESSEE TO SH.K.K AGGARWAL. HE THEREFORE SUBMITTE D THAT ASSESSEE HAS COMPLETELY SHOWN AMOUNT OF RS. 1 CRRORE RECEIVE D BY K K AGARWAL THROUGH 2 COMPANIES AND ALSO SOURCE OF RS. 40 LAKHS PAID BY KK AGGARWAL THROUGH HIS OWN PROPRIETARY CONCERN THAT HAD HUGE TURNOVER. 11.1 LD. COUNSEL SUBMITTED THAT ASSESSEE HAS SHOWN IDENT ITY OF PARTIES FROM WHOM MONIES WERE RECEIVED, THEIR CREDITWORTHIN ESS IS ALSO EXPLAINED AND GENUINENESS OF TRANSACTION WITH RESPE CT TO PROPERTY STOOD ESTABLISHED, AS COPY OF AGREEMENT WAS FOUND D URING COURSE SEARCH BY CBI. HE FURTHER SUBMITTED THAT ORIGINAL COPY OF AGREEMENT COULD NOT BE FOUND DURING COURSE OF SEARC H AS IT GENERALLY BELONGS TO PURCHASER AND NOT TO THE SELLE R, ASSESSEE AS A MATTER OF PRACTICE. HE FURTHER STATED THAT SHRI KK AGGARWAL, SRI VIPIN JAIN BOTH HAVE BEEN EXAMINED UNDER SECTION 13 1 OF THE ACT BY LD. AO, WHO HAVE CONFIRMED THE TRANSACTION. HE FUR THER STATED THAT BOTH THESE PERSONS HAVE CONFIRMED THAT THEY HAVE RE CEIVED MONEY BACK. HE FURTHER STATED THAT DEAL OF SALE OF IMMOV ABLE PROPERTY ITA 3794/DEL/2018 A.Y.:2011-12 SH. VIJAY KUMAR JAIN 13 WAS CANCELLED BECAUSE OF SEARCH BY CBI IN THE CASE OF ASSESSEE. THE BUYER (SH. K.K. AGARWAL) REFUSED TO BUY THE PRO PERTY. IN VIEW OF THIS, ADDITION OF RS. 1.40 CRORES CANNOT BE MADE IN HANDS OF THE ASSESSEE. 12 ON THE CONTRARY, LD. SR. DR SUBMITTED ENTIRE DEALIN G HAS BEEN DONE BY ASSESSEE IN CASH WHICH ITSELF CREATES SUSPICION REGARDING GENUINENESS OF TRANSACTION. PLACING RELIANCE UPON O RDERS OF AUTHORITIES BELOW LD. SR. DR SUBMITTED THAT, CREDIT WORTHINESS AND GENUINENESS OF SH. VIPIN GUPTA IS QUESTIONABLE AND HAS NOT BEEN PROVED. HENCE, AMOUNT OF RS.1.40 CRORES HAS BEEN RI GHTLY ADDED UNDER SECTION 69A AS UNEXPLAINED MONEY. WE HAVE PERUSED SUBMISSIONS ADVANCED BY BOTH THE SI DES IN THE LIGHT OF THE RECORDS PLACED BEFORE US. 13 DURING COURSE OF SEARCH, AGREEMENT FOR SALE DATED 19 DECEMBER 2010 BETWEEN ASSESSEE AND SHRI KRISHEN KISHORE AGRA WAL FOR SALE OF PROPERTY AT KA 49, KAVI NAGAR AND MEASURING 297.2 75 MK SITUATED AT GHAZIABAD, FOR TOTAL SALE CONSIDERATION OF RS. 2 .90 CRORES WAS FOUND FROM PREMISES OF ASSESSEE. THE ABOVE PROPERT Y WAS SUBJECT TO MORTGAGE WITH STATE BANK OF INDIA FOR LOAN TAKEN BY ASSESSEE. AS PER CLAUSE NUMBER 2 AND 3 OF AGREEMENT, ASSESSEE WA S PAID A SUM OF RS. 1.40 CRORES BY SH. K.K. AGARWAL. ASSESSEE S TATED THAT CASH FOUND OF RS. 2.10 CRORES IS CONSISTING OF RS. 1.40 CRORES BEING CASH GIVEN BY BUYER TO ASSESSEE. ASSESSEE SUBMITTED THA T SHRI KK AGGARWAL PAID THIS SUM OF RS. 1.40 CRORES TO ASSESS EE. DURING THE COURSE OF SEARCH BEFORE BY CBI, SHRI KK AGARWAL WAS EXAMINED, WHO CONFIRMED THE ABOVE FACTS. SHRI KK AGARWAL EXPLAIN ED THAT HE HAS ARRANGED MONEY FROM ONE SHRI VIPIN GUPTA. SHRI VIP IN GUPTA PAID CASH OF RS. 1 CORE TO SHRI KK AGARWAL FROM TWO PVT. LTD. COMPANIES CONTROLLED BY HIM. BALANCE RS. 40 LAKHS WAS PAID B Y SHRI K.K. AGARWAL THROUGH HIS PROPRIETARY CONCERN M/S SRI KRI SHNA AGENCIES. THE LD. AO EXAMINED SHRI KK AGGARWAL AND SRI VIPIN GUPTA. BOTH HAVE CONFIRMED ABOVE FACTS. THEY ALSO SUPPORTED IT BY PRODUCING ITA 3794/DEL/2018 A.Y.:2011-12 SH. VIJAY KUMAR JAIN 14 BALANCE SHEET OF COMPANIES AND CASH BOOK OF SRI KRI SHNA AGENCIES. LD. AO DISBELIEVED IT STATING THAT COMPANIES DID NO T HAVE ADEQUATE CREDITWORTHINESS TO PROVIDE SUCH MONEY AND FURTHER SHRI VIPIN GUPTA IS NOT A PERSON WHO IS CREDITWORTHY OF PROVIDING SU CH SUM TO SHRI KK AGARWAL. THEREFORE, LD. AO MADE ADDITION OF RS. 1. 40 CRORES AS UNEXPLAINED INCOME OF THE HANDS OF ASSESSEE. THE L D. CIT(A) CONFIRMED THE SAME. 13.1 LIMITED ISSUE BEFORE US IN THIS GROUND IS WHETHER S UM OF RS. 1.40 CRORES IS CHARGEABLE TO TAX IN HANDS OF ASSESSEE UN DER SECTION 69A OF THE ACT OR NOT. 13.2 SH.K.K AGGARWAL FROM WHOM A SUM OF RS.1.40 CRORES H AS BEEN RECEIVED BY ASSESSEE WAS SUBJECT TO SCRUTINY BY CBI . ON PERUSAL OF REPORT BY CBI, IT IS OBSERVED THAT STATEMENT HAS BE EN RECORDED UNDER SECTION 131 WHEREIN SH. KK AGGARWAL ADMITTED TO HAVE PAID THIS MONEY TO ASSESSEE. REGARDING VERACITY OF AGREE MENT TO SELL ENTERED INTO BETWEEN ASSESSEE AND SH.K.K AGGARWAL, CBI CALLED UPON NOTARY WHO NOTARISED THE SAME. ALL THE PARTIES HAVE CONFIRMED THE AGREEMENT TO SELL TO BE IN ORDER. SHRI KK AGGA RWAL EXPLAINED THE SOURCE OF RS. 1.40 CRORES. IT WAS STATED THAT RS. 30 LAKHS AND RS. 70 LAKHS HAVE BEEN RECEIVED FROM TWO COMPANIES THROUGH SHREE VIPIN GUPTA. THE BALANCE SHEETS OF BOTH COMPANIES WERE SHOWN TO LD. AO ALONG WITH THEIR RETURN OF INCOME AND CONFIR MATION VOUCHER ABOUT PAYMENT OF THE SUM BY THOSE COMPANIES TO SHRI KK AGARWAL, WHO IN TURN DEPOSITED THE MONEY WITH ASSESSEE FOR P URCHASE OF PROPERTY. THE TRANSACTION IS ALSO SHOWN IN THE AGR EEMENT TO SELL, COPY OF WHICH IS FOUND DURING COURSE OF SEARCH OF P REMISES OF ASSESSEE BY CBI. 13.3 IN SO FAR AS GENUINENESS OF SH.VIPIN GUPTA IS CONC ERNED, THAT CANNOT BE A REASON FOR MAKING ADDITION IN HANDS OF ASSESSEE, AS CREDITWORTHINESS OF SH.VIPIN GUPTA NEED NOT BE ASCE RTAINED IN THE PRESENT FACTS OF CASE. ADMITTEDLY, SH.K.K AGGARWAL TOOK MONEY FROM SH.VIPIN GUPTA WHO ADVANCED FUNDS AS LOAN FROM HIS ITA 3794/DEL/2018 A.Y.:2011-12 SH. VIJAY KUMAR JAIN 15 COMPANIES, WHERE HE IS DIRECTOR. BALANCE SHEETS PLA CED IN PAPER BOOK RELATING TO COMPANIES FROM WHERE MONIES HAVE B EEN ADVANCED, WHICH IS RELIED UPON BY LD. COUNSEL, SUBS TANTIATES THE SAME. FURTHER, ASSESSEE PRODUCED SHRI KK AGGARWAL AND SRI VIPIN GUPTA, BEFORE AO WHO PROVIDED FUNDS TO SHRI K K AGA RWAL, WHO IN TURN ADVANCED MONEY TO ASSESSEE FOR PURCHASE OF PRO PERTY. BOTH PARTIES CONFIRMED THE TRANSACTIONS, SHOWING SOURCE AND TRAIL OF CASH PAID BY MR VIPIN GUPTA TO MR KK AGARAL WHO IN TUR N PAID IT TO ASSESSEE. LD. AO WAS ALSO SHOWN THAT ALL THE PARTI ES INVOLVED IN TRANSACTIONS FROM WHERE CASH WAS PAID TO SHRI K.K. AGARWAL, WHO IN TURN PAID TO ASSESSEE, ARE ASSESSED TO INCOME TAX. ASSESSEE SUBMITTED THEIR BALANCE SHEETS AND RESPECTIVE VOUCH ERS BEFORE ASSESSING OFFICER. ASSESSEE ALSO SHOWN RESPECTIVE ENTRIES IN BALANCE SHEET OF THOSE PARTIES IN THE NAME OF SHRI KK OTHER WHILE UNDER THE HEAD ADVANCES PAID FOR PROPERTIES. ASSESSEE HAS AL SO SHOWN THAT SHRI VIPIN GUPTA IS CARRYING ON BUSINESS AND HAS TU RNOVER OF 13 CRORES BY SUBMITTING THE BALANCE SHEET AND PROFIT A ND LOSS ACCOUNT ALONG WITH RETURN OF THAT PERSON. ASSESSEE ALSO SU PPORTED THE PAYMENT FROM SHRI VIPIN GUPTA TO SHRI K K AGARWAL BY PRODUCING CASHBOOK OF SRI VIPIN GUPTA. THEREFORE IT IS APPAR ENT THAT ASSESSEE HAS SUPPORTED ITS CONTENTION BY SUBMITTING ANNUAL R EPORT OF COMPANIES SHOWING, ABOVE PAYMENT, REPLY BY COMPANIE S TO ASSESSING OFFICER IN RESPONSE TO VARIOUS NOTICES, C ONFIRMATION BY SRI VIPIN GUPTA, PRODUCTION OF AUDITED FINANCIAL STATEM ENT OF SHRI VIPIN GUPTA, COPIES OF RESPECTIVE VOUCHERS OF ABOVE PAYME NT, COUPLED WITH THE COPY OF AGREEMENT TO SALE. 13.4 FURTHER, ASSESSEE PROVIDED EXPLANATION THAT WHY PRO PERTY COULD NOT BE TRANSACTED LATER ON, FOR REASON THAT AFTER CBI S EARCH ON ASSESSEE, BUYER WAS NOT WILLING TO BUY THE ABOVE PR OPERTY FROM THE ASSESSEE. FURTHER, MARKET VALUE DETERMINED BY LD. AO WAS ALSO NOT BASED ON ANY CREDIBLE EVIDENCE. ASSESSEE HAS SHOWN THAT PROPERTY WAS TO BE TRANSACTED FOR RS. 2.90 CRORES AND OUT OF WHICH ONLY RS. ITA 3794/DEL/2018 A.Y.:2011-12 SH. VIJAY KUMAR JAIN 16 1.40 CRORES WERE PAID BY THE BUYER AS ADVANCE. THI S WAS SHOWN IN THE AGREEMENT TO SELL FOUND DURING COURSE OF SUCH. THEREFORE, EXPLANATION GIVEN BY ASSESSEE CANNOT BE REJECTED IN ABSENCE OF ANY CONTRARY EVIDENCE FOUND BY AO. THUS, IN OUR OPINIO N, ADDITION MADE BY LD. AO CANNOT BE SUSTAINED. 13.5 IN OUR CONSIDERED OPINION, LD. A.O FAILED TO ESTABL ISH NON GENUINENESS OF AGREEMENT TO SELL. THERE IS NO EVIDE NCE ON RECORD TO ESTABLISH TRANSACTION TO BE BOGUS. MERELY ON SURMIS ES AND CONJUNCTURES, LD. A.O CANNOT MAKE ADDITIONS IN HAND S OF ASSESSEE, WITHOUT THERE BEING COGENT MATERIAL AGAINST ASSESSE E ON RECORD. WE ARE THEREFORE INCLINED TO DELETE ADDITION MADE BY L D.AO . ACCORDINGLY, GROUND NO. 3 STANDS ALLOWED. 14 GROUND NO. 4 HAS BEEN RAISED IN RESPECT OF ADDITION AMOUNTING T O RS.13,42,000/- AS UNEXPLAINED MONEY UNDER SECTION 6 9A OF THE ACT. THE FACT SHOWS THAT, FROM TWO LOCKERS WITH CANARA B ANK RS. 37.59 LAKHS AND RS. 13.48 LAKHS WAS FOUND AND SEIZED BY C BI. FROM ANOTHER LOCKER WITH STATE BANK OF INDIA, A SUM OF R S. 17.35 LAKHS WAS FOUND AND SEIZED. IT WAS THUS SUBMITTED TOTAL AMOUNT SEIZED WAS RS. 68.42 LAKHS FROM THREE LOCKERS. THE ASSESS EE EXPLAINED SOURCE OF FUNDS FOUND IN LOCKER THAT IT IS OUT OF WILL OF FATHER OF ASSESSEE. ASSESSEE SUBMITTED NOTARISED COPY OF WI LL BEFORE LD. AO. THE WILL WAS EXECUTED IN THE YEAR 2008. ADMITTED LY, IT WAS NOT REGISTERED. CBI AND INCOME TAX DEPARTMENT EXAMINED NOTARY, IT WAS CONFIRMED THAT THAT WILL BELONGED TO LATE ROS HANAL JAIN, FATHER OF ASSESSEE. LD. AO IN ASSESSMENT ORDER NOTED THAT WILL PRODUCED, SEEMS TO BE GENUINE. LD. AO FURTHER ON EXAMINATION OF WILL NOTED THAT RS. 55 LAKHS HAS BEEN BEQUETHED TO ASSESSEE. THEREFORE, OUT OF 68.42 LAKHS LD. AO ALLOWED RS. 55 LAKHS AS EXPLAINE D AND MADE ADDITION OF BALANCE OF RS. 13.42 LAKHS AS UNDISCLOS ED INCOME UNDER SECTION 69A OF THE ACT. THE LD. CIT(A) CONFIRMED THE ADDITION. 15 LD. COUNSEL SUBMITTED THAT A SUM OF RS.68.42 LAKHS WAS SEIZED FROM VARIOUS LOCKERS BY CBI. HE SUBMITTED THAT LD.A.O. ADDED SUM OF ITA 3794/DEL/2018 A.Y.:2011-12 SH. VIJAY KUMAR JAIN 17 RS. 13.42 LAKHS AND ACCEPTED BALANCE RS.55 LAKHS. L D. COUNSEL SUBMITTED THAT ENTIRE MONEY HAS BEEN RECEIVED BY AS SESSEE UNDER WILL OF LATE ROSHAN LAL JAIN, BEING FATHER OF ASS ESSEE. HE FURTHER SUBMITTED THAT LD.A.O MADE ADDITION ONLY ON THE GRO UND THAT, MONEY WAS NOT FOUND IN LOCKER. HE SUBMITTED THAT EN TIRE MONEY WAS RECEIVED BY ASSESSEE UNDER WILL AND LD. A.O PARTL Y ADMITTED RECEIPT OF MONEY UNDER WILL, BALANCE CANNOT BE DENIED WIT HOUT THERE BEING CONTRARY MATERIALS ON RECORD. HE SUBMITTED THAT THE RE HAS BEEN NO EVIDENCE ON RECORD TO ESTABLISH ANYTHING CONTRARY. 16 LD. SR. DR THOUGH SUPPORTED ORDERS OF AUTHORITIES B ELOW, SUBMITTED THAT WILL HAS NOT BEEN PROBATED BY ASSESSEE AND THE REFORE ITS AUTHENTICITY CANNOT BE RELIED UPON. FURTHER, HE SUB MITTED THAT VARIOUS OBSERVATIONS OF CBI REGARDING THE WILL COUL D NOT BE IGNORED. HE THUS SUPPORTED ADDITION TO BE UPHELD. 17 WE HAVE PERUSED THE SUBMISSIONS ADVANCED BY BOTH SI DES, IN THE LIGHT OF RECORDS PLACED BEFORE US. 18 ADMITTEDLY, THERE IS NO DISPUTE REGARDING MONEY HAV ING RECEIVED UNDER A WILL, BY ASSESSEE. FURTHER, LD. AO HIMSELF STATED THAT THAT WILL SEEMS TO BE GENUINE. PART OF THE WILL HAS B EEN ACCEPTED BY LD. AO AND HELD RS. 55 LAKHS AS EXPLAINED SOURCE OF THE CASH FOUND IN THE LOCKERS. LD. AO REJECTED BALANCE SUM OF RS. 13 .42 LAKHS ONLY FOR REASON THAT THAT THOUGH MONEY HAS BEEN FOUND FROM L OCKER, IT HAS NOT BEEN MENTIONED THAT SUCH SUM WAS KEPT IN LOCKER S. WE DO NOT AGREE WITH CONTENTION OF LD. AO THAT MERELY BECAUSE IN THE WILL, IT HAS NOT BEEN STATED THAT MONEY IS TO BE KEPT IN LOC KER, IT CANNOT BECOME UNEXPLAINED MONEY OF ASSESSEE. IN THE WILL IT HAS BEEN STATED THAT RS. 12 TO 15 LAKHS WAS GIVEN TO ASSESSE E FROM TIME TO TIME BY HIS FATHER (GRANDFATHER OF ASSESSEE). THE ABOVE SUM OF RS. 13.42 LAKHS IS FALLING WITHIN RANGE OF RS. 12 TO 15 LAKHS STATED BY LATE FATHER OF ASSESSEE. LD. AO BELIEVED THE WILL TO BE GENUINE AND GRANTED SUBSTANTIAL CREDIT OF RS. 55 LAKHS OUT OF S UM FOUND AMOUNTING TO RS. 68.42 LAKHS FROM LOCKERS. ITA 3794/DEL/2018 A.Y.:2011-12 SH. VIJAY KUMAR JAIN 18 19 WE ARE NOT INCLINED TO UPHOLD BALANCE ADDITION OF R S. 13.42 LAKHS AS IT WAS MADE ON FLIMSY GROUND. ACCORDINGLY, ORDERS OF LOWER AUTHORITIES ARE REVERSED AND LD. AO IS DIRECTED TO DELETE ADDITION OF RS. 13.42 LAKH. ACCORDINGLY, GROUND NUMBER 3 OF THE APPEAL OF THE A SSESSEE IS ALLOWED. IN THE RESULT APPEAL FILED BY ASSESSEE IS PARTLY AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 13.11.2018 SD/- SD/- (PRASHANT MAHARISHI) (BEENA A PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER DT. 13 TH NOVEMBER,2018 *GMV/ *KAVITA ARORA COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT - TRUE COPY - BY OR DER, ASSISTANT REGISTRAR ITAT DELHI BENCHES ITA 3794/DEL/2018 A.Y.:2011-12 SH. VIJAY KUMAR JAIN 19 DATE DRAFT DICTATED ON 12.11.2018 DRAFT PLACED BEFORE AUTHOR 13.11.2018 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS 14.11.2018 KEPT FOR PRONOUNCEMENT ON & ORDER UPLOADED ON : 14.11.2018 FILE SENT TO THE BENCH CLERK 14.11.2018 DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.