I.T.O-4(1), Agra V. Dr. Girdhar Sharma, Agra

ITA 381/AGR/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 50381 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 1 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 14-10-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 16-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ASHWANI TANEJA; SHASHANK AGARWAL
• Keywords: Corroborative evidences
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.381/AGR/2010 ASSESSMENT YEARS: 2005-06 INCOME TAX OFFICER-4(1), VS. DR. GIRDHAR SHARM A, AGRA. 6, SHUBHAM ENCLAVE, BALKESHWAR, AGRA. (PAN: AHYPS 8469 C). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI WASEEM ARSHAD, SR. D.R. RESPONDENT BY : SHRI ASHWANI TANEJA, FCA & SHRI SHASHANK AGARWAL, ADVOCATE DATE OF HEARING : 14.10.2011 DATE OF PRONOUNCEMENT : 18.10.2011 ORDER PER H.S. SIDHU, J.M. : THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST TH E IMPUGNED ORDER DATED 22.06.2010 PASSED BY THE LD. CIT(A)-II, AGRA FOR TH E ASSESSMENT YEAR 2005-06 ON THE FOLLOWING GROUNDS OF APPEAL :- 1. THAT THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF ` 26,00,000/- BEING UNEXPLAINED CASH FOUND DURING SEARCH WITHOUT PROPERLY APPRECIATING THE FAC TS OF THE CASE MENTIONED IN THE ASSESSMENT ORDER. 2. THAT THE LEARNED CIT(A)-II, AGRA HAS ERRED IN L AW AND ON FACTS IN DELETING THE ADDITION OF ` 2,42,000/- BEING AMOUNT OF UNEXPLAINED ITA NO.381/AGR/2010 A.Y. 2005-06 2 JEWELLERY FOUND DURING SEARCH WITHOUT PROPERLY APPR ECIATING THE FACTS OF THE CASE MENTIONED IN THE ASSESSMENT ORDER. 3. THAT THE LEARNED CIT(A)-II, AGRA BEING ERRONEOUS IN LAW AND ON FACTS DESERVES TO BE QUASHED AND THAT THE ORDER OF THE ASSESSING OFFICER TO BE RESTORED. 4. THE APPELLANT CRAVES LEAVE TO ADD OR ALTER ANY O R MORE GROUND OR GROUNDS OF APPEAL AS MAY BE DEEMED FIT AT THE TI ME OF HEARING OF APPEAL. 2. THE BRIEF FACTS RELATING TO THE ISSUE IN DISPUTE ARE THAT THERE WAS SEARCH UNDER SECTION 132(1) OF THE INCOME TAX ACT, 1961 (THE AC T HEREINAFTER) ON 16.09.2004 AND CASH AMOUNTING TO RS.26,67,518/- AND JEWELLERY WEIGHING 1327.770 GRAMS WERE FOUND. THE ASSESSING OFFICER ISSUED NOTICE DA TED 08.11.2005 UNDER SECTION 153A OF THE ACT FOR THE ASSESSMENT YEARS 1999-2000 TO 2004-05 ASKING THE ASSESSEE TO FURNISH THE DETAILS OF INCOME WITHIN 30 DAYS. THE ASSESSING OFFICER ALSO ISSUED NOTICE UNDER SECTION 143 OF THE ACT TO THE ASSESSEE. IN RESPONSE TO THE SAME, THE LD. COUNSEL FOR THE ASSESSEE APPEARED AND DISCUSSED THE MATTER WITH THE ASSESSING OFFICER. THE ASSESSEE IN HIS STATEMENT D ATED 17.09.2004 STATED THAT RS.6,17,000/- BELONGS TO HIS FATHER WHO KEPT THIS M ONEY WITH HIM FOR SECURITY PURPOSES AND HIS FATHER GOT THIS MONEY FROM ST. AND REWS PUBLIC SCHOOL FOR BUYING A LAND FOR THE SCHOOL AND RS.13,65,518/- WAS RECEIV ED BY THE ASSESSEE IN THE CAPACITY OF MANAGER OF C.F. ANDREWS SCHOOL FOR PURC HASE OF A LAND THROUGH A BROKER NAMELY SHRI SANJEEV KUMAR SHARMA. THE ASSES SEE FURTHER STATED THAT RS.60,752/- WAS HIS OWN MONEY AND RS.1,24,248/- BEL ONGS TO HIS WIFE. AS REGARDS TO THE CASH FOUND IN THE LOCKER AMOUNTING TO RS.5,0 0,000/-, THE ASSESSEE STATED THAT ITA NO.381/AGR/2010 A.Y. 2005-06 3 THIS MONEY WAS RECEIVED FROM SEVEN PERSONS AGAINST ADVANCE FOR LAND AND HE HAS ALSO FURNISHED CONFIRMATIONS FOR THE SAME. AFTER C ONSIDERING THE DOCUMENTARY EVIDENCES PRODUCED BY THE ASSESSEE, THE ASSESSING O FFICER MADE THE ADDITION OF RS.26,00,000/- AS UNEXPLAINED CASH OUT OF THE CASH FOUND DURING THE SEARCH AND 500 GRAMS JEWELLERY AS UNEXPLAINED AND ITS VALUE RS .2,42,000/- WAS ADDED TO THE INCOME OF THE ASSESSEE VIDE ASSESSMENT ORDER DATED 29.12.2006 UNDER SECTION 143(3) OF THE ACT. AGGRIEVED BY THE SAME, THE ASSE SSEE FILED AN APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY WHO VIDE ORDER DATED 22.06.2010 PARTLY ALLOWED THE APPEAL OF THE ASSESSEE AND DELETED THE ADDITION IN DISPUTE. NOW THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST THE IMPUGNED ORDER . 3. AT THE TIME OF HEARING, THE LD. DEPARTMENTAL REP RESENTATIVE RELIED UPON THE ORDER PASSED BY THE ASSESSING OFFICER AND STATED TH AT THE LD. FIRST APPELLATE AUTHORITY HAS WRONGLY DELETED THE ADDITION IN DISPU TE WITHOUT PROPERLY APPRECIATING THE FACTS AND LAW. HE REQUESTED THAT THE IMPUGNED ORDER MAY BE CANCELLED AND THE ASSESSMENT ORDER MAY BE UPHELD BY ACCEPTING THE APPEAL FILED BY THE REVENUE. 4. ON THE CONTRARY, THE LD. COUNSEL FOR THE ASSESSE E CONTROVERTED THE ARGUMENTS ADVANCED BY THE LD. DEPARTMENTAL REPRESENTATIVE AND STATED THAT THE LD. FIRST APPELLATE AUTHORITY HAS PASSED A WELL REASONED ORDE R AFTER APPRECIATING ALL DOCUMENTARY EVIDENCES PRODUCED BY THE ASSESSEE. TH EREFORE, THE SAME MAY BE ITA NO.381/AGR/2010 A.Y. 2005-06 4 UPHELD BY DISMISSING THE APPEAL FILED BY THE REVENU E. HE RELIED UPON THE IMPUGNED ORDER PASSED BY THE LD. FIRST APPELLATE AU THORITY. HE FURTHER STATED THAT THE ASSESSEE HAS EXPLAINED THAT A SUM OF RS.6,17,00 0/- WAS OUT OF THE CASH IN HAND OF ST. ANDREWS PUBLIC SCHOOL WHICH WAS HANDED OVER TO HIM BY THE ASSESSEES FATHER AND A SUM OF RS.13,65,518/- WAS EXPLAINED TO BE OUT OF THE CASH IN HAND OF C.F. ANDREWS SCHOOL WHICH WAS HELD BY THE ASSESSEE FOR THE PURPOSE OF PURCHASING LAND FOR THE SCHOOL THROUGH THE BROKER SHRI SANJEEV SHARMA. A SUM OF RS.60,752/- WAS EXPLAINED TO BE BELONGING TO THE ASSESSEE WHERE AS A SUM OF RS.1,24,248/- WAS EXPLAINED TO BE BELONGING TO THE ASSESSEES WIFE NA MELY MRS. SUNITA SHARMA AND A SUM OF RS.5,00,000/- WHICH WAS FOUND FROM THE LOCKE R WAS EXPLAINED TO HAVE BEEN RECEIVE FROM SEVEN PERSONS IN RESPECT OF SALE OF H IS LAND. THE LD. COUNSEL FOR THE ASSESSEE ALSO STATED THAT THE ASSESSEE HAS FILED CO NFIRMATIONS FROM ALL THE PERSONS FROM WHOM HE HAS TAKEN THE MONEY AS WELL AS A CONFI RMATION LETTER FROM SHRI SANJEEV SHARMA, BROKER. HE ALSO DREW OUT ATTENTION TOWARDS THE STATEMENT OF THE ASSESSEE DATED 17.09.2004 IN WHICH HE HAS STATED TH AT A SUM OF RS.1,25,000/- BELONGED TO HIS WIFE. A SUM OF RS.60,000/- BELONGE D TO THE ASSESSEE AND THE BALANCE AMOUNT WAS BELONGING TO C.F. ANDREWS SCHOOL FOR THE PURPOSE OF PURCHASE OF LAND FOR THE SCHOOL. SIMILARLY, HIS WI FE ALSO MADE A STATEMENT EXPLAINING A SUM OF RS.1,15,000/- WHICH BELONGED TO HER. HE FURTHER STATED THAT THE ASSESSEE HAS ALSO HANDED OVER ALL THE DOCUMENTA RY EVIDENCES TO THE SEARCH PARTY AT THE TIME OF MAKING THE STATEMENT EXPLAINING THE SOURCE OF CASH IN HAND AS WELL AS SUPPORTING EVIDENCES I.E. COPY OF CASH BOOK OF ST. ANDREWS PUBLIC SCHOOL SHOWING ITA NO.381/AGR/2010 A.Y. 2005-06 5 A SUM OF RS.9,17,000/- IN CASH IN HAND AS WELL AS R S.13,65,518/- ENTERED IN THE CASH BOOK OF C.F. ANDREWS SCHOOL. THE ASSESSEE HAS ALSO FILED AFFIDAVIT OF THE PRINCIPAL OF C.F. ANDREWS SCHOOL DEPOSING THAT A SUM OF RS.13 ,65,000/- WAS GIVEN TO THE ASSESSEE FROM THE SCHOOL. IN SUPPORT OF THE SAME, SHRI SANJEEV SHARMA, BROKER, HAS ALSO FILED AN AFFIDAVIT DEPOSING THAT AN AMOUNT OF RS.13,65,000/- WAS TO BE PAID ON NEXT DAY OF SEARCH. AS REGARDS TO THE EXPLANATI ON OF THE JEWELLERY, THE LD. COUNSEL FOR THE ASSESSEE SATED THAT DURING THE COUR SE OF SEARCH TOTAL JEWELLERY WEIGHING 1327.770 GRAMS WERE FOUND, OUT OF WHICH, 163.200 GRAMS AND 108.300 GRAMS WERE EXPLAINED TO BE BELONGING TO THE ASSESSE E AND HIS FATHER WHICH WAS ACCEPTED BY THE ASSESSING OFFICER ALSO. THE BALANC E JEWELLERY WEIGHING 1056.270 GRAMS WAS EXPLAINED BY THE ASSESSEE TO BE BELONGING TO THE WIFE AND CHILDREN OF THE ASSESSEE, OUT OF WHICH, THE ASSESSING OFFICER H AS TREATED 500 GRAMS OF JEWELLERY AS UNEXPLAINED AND THE VALUE OF WHICH AMO UNTING TO RS.2,42,000/- WAS ADDED AS UNEXPLAINED. TO EXPLAIN THE SAME, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE ASSESSEE WAS HAVING 3 CHILDREN I.E. ONE DA UGHTER AND TWO SONS. ACCORDING TO THE CBDT INSTRUCTIONS DATED 11.05.1994 READ WITH THE DECISION IN THE CASE OF NEENA SYAL, 70 ITD 62 (CHD.), THE BOARD HAS GIVEN INSTRUCTIONS THAT 500 GRAMS PER MARRIED LADY, 250 GRAMS PER UNMARRIED LADY AND 100 GRAMS FOR MALE MEMBERS BE NOT SEIZED. KEEPING IN VIEW OF THE DECISION OF I.T.A.T., CHANDIGARH BENCH IN THE CASE OF NEENA SYAL REPORTED IN 70 ITD 62 (CHD.) , THE ADDITION AMOUNTING TO RS.2,42,000/- ON ACCOUNT OF UNEXPLAINED JEWELLERY M AY BE DELETED AS HAS RIGHTLY BEEN DELETED BY THE LD. FIRST APPELLATE AUTHORITY. HE RELIED UPON THE IMPUGNED ITA NO.381/AGR/2010 A.Y. 2005-06 6 ORDER AND REQUESTED THAT APPEAL FILED BY THE REVENU E MAY BE DISMISSED. IN SUPPORT OF HIS CONTENTION, HE HAS ALSO FILED A PAPER BOOK C ONTAINING PAGE NOS.1 TO 204 IN WHICH HE HAS ATTACHED VARIOUS DOCUMENTARY EVIDENCES SUPPORTING THE IMPUGNED ORDER. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT MATERIALS AVAILABLE ON RECORD. WE ARE OF THE CONSIDERED OPINION THAT T HE LD. FIRST APPELLATE AUTHORITY HAS RIGHTLY APPRECIATED THE EVIDENCES PRODUCED BY T HE ASSESSEE BEFORE THE ASSESSING OFFICER. WE ALSO FIND THAT THE ASSESSEE HAS MADE A STATEMENT AT THE TIME OF SEARCH AND EXPLAINED ABOUT THE CASH AS WELL AS T HE JEWELLERY. SIMILARLY, THE ASSESSEE HAS ALSO STATED BEFORE THE ASSESSING OFFIC ER WITH THE SUPPORT OF CONFIRMATORY LETTERS AND RECORD OF ST. ANDREWS PUBL IC SCHOOL AND C.F. ANDREWS SCHOOL. THE ASSESSEE HAS ALSO ESTABLISHED WITH DOC UMENTARY EVIDENCES THAT THE SAID SCHOOL HAS ALSO MADE AN ENTRY IN THEIR RECORD. THE LD. FIRST APPELLATE AUTHORITY HAS RIGHTLY DELETED THE ADDITION OF RS.26 ,00,000/- BY OBSERVING AS UNDER AT PAGE NO.5, PARAGRAPH NO.5 :- 5. I HAVE GONE THROUGH THE PAPER BOOK AND FOUND TH AT THE BOOKS OF ACCOUNTS OF THE SCHOOLS WERE PRODUCED BY THE APPELL ANT BEFORE DDI AS PER LETTER DATED 20.09.2004 ON PAGE 1 OF PAPER BOOK & LETTER TO ADI DATED 28.10.2004 ON PAGE NO.2 & 3 OF PAPER BOOK AND TO A.O. AS PER LETTER DATED 29.10.2004 ON PAGE NO.4 TO 5 AND COPY OF CASH BOOK OF ST ANDREWS PUBLIC SCHOOL ON PAGE 7 TO 10 AND COPY OF C ASH BOOK OF C.F. ANDREWS SCHOOL ON PAGE NO.11 TO 20 OF PAPER BOOK AN D ON PAGE NO.142 TO 157 AND PAGE NO.158 TO 174 AND PAGE NO.1 OF ANNEXURE A OF PB IS THE STATEMENT OF DR. GIRDHAR SHARMA RECORDED ON 17.09.2004, ITA NO.381/AGR/2010 A.Y. 2005-06 7 PAGE 1 OF ANNEXURE B OF PB IS THE STATEMENT OF TH E APPELLANTS WIFE RECORDED AT THE TIME OF SEARCH. IT IS CLEAR FROM P LAIN READING OF THESE PAGES OF PAPER BOOK THAT SUPPORTIVE DOCUMENTS WERE PLACED BEFORE ASSESSING OFFICER AND ASSESSING OFFICER HIMSELF HAS ACCEPTED THE PRODUCTION OF COPY OF CASH BOOKS OF SCHOOLS. ON TH E BASIS OF THESE FACTS AND ORDER SHEET DATED 18.12.2006, I AM OF CON SIDERED VIEW THAT ASSESSING OFFICER HAS REJECTED THE EXPLANATIONS AN D EVIDENCES MERELY ON THE BASIS OF SUSPICION THEREFORE THE ADDITION OF ` 26,00,000/- IS DELETED. 6. AFTER GOING THROUGH THE EXPLANATION GIVEN BY THE ASSESSEE AT THE TIME OF SEARCH AS WELL AS DOCUMENTARY EVIDENCES FILED BEFOR E THE ASSESSING OFFICER, I.E., CONFIRMATORY LETTERS, ACCOUNT OF BOTH THE SCHOOLS A ND VARIOUS OTHER DOCUMENTARY EVIDENCES PRODUCED BY THE LD. COUNSEL FOR THE ASSES SEE IN THE SHAPE OF PAPER BOOK BEFORE US, WE ARE OF THE CONSIDERED OPINION THAT NO INTERFERENCE IS CALLED FOR IN THE WELL REASONED ORDER PASSED BY THE LD. FIRST APPELLA TE AUTHORITY ON THE ISSUE INVOLVED IN GROUND NO.1. THEREFORE, WE CONFIRM THE IMPUGNED ORDER ON THE SAME. 7. AS REGARDS TO THE ADDITION OF RS.2,42,000/- ON A CCOUNT OF UNEXPLAINED JEWELLERY FOUND DURING THE SEARCH, AFTER HEARING BO TH THE PARTIES AND PERUSING THE ORDER PASSED BY REVENUE AUTHORITIES, ESPECIALLY THE DECISION CITED BY THE LD. FIRST APPELLATE AUTHORITY ON THE INSTRUCTION DATED 11.05. 1994 ISSUED BY THE BOARD IN WHICH THE BOARD HAS GIVEN INSTRUCTION THAT 500 GRAM S PER MARRIED LADY, 250 GRAMS PER UNMARRIED LADY AND 100 GRAMS FOR MALE MEMBERS B E NOT SEIZED. THE I.T.A.T, CHANDIGARH BENCH IN THE CASE OF NEENA SYAL, 70 ITD 62 (CHD) HAD DISCUSSED THE MATTER IN DETAIL AND GIVEN BENEFIT TO THE ASSESSEE. RESPECTFULLY FOLLOWING THE SAME, ITA NO.381/AGR/2010 A.Y. 2005-06 8 THE ADDITION ON ACCOUNT OF UNEXPLAINED JEWELLERY WE IGHING 500 GRAMS AMOUNTING TO RS.2,42,000/- IS DELETED AND WE UPHOLD THE IMPUG NED ORDER ON THE ISSUE INVOLVED IN GROUND NO.2. 8. NO OTHER ARGUMENT HAS BEEN RAISED BY BOTH THE PA RTIES. KEEPING IN VIEW OF THE AFORESAID DISCUSSIONS, WE DISMISS THE APPEAL FI LED BY THE REVENUE. 9. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 18.10.2011) SD/- SD/- (B.C. MEENA) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 18 TH OCTOBER, 2011 PBN/* COPY OF THE ORDER FORWARDED TO: APPELLANT/RESPONDENT/CIT CONCERNED/CIT(APPEALS) CO NCERNED/D.R., ITAT, AGRA BENCH, AGRA/GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY