The The Income tax Officer, Jammu V. Shri Ghulam Rasool, Jammu

ITA 398/ASR/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63603 (ITAT-AMRITSAR)
• Duration Of Justice: 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 25-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Unexplained expenditure; Onus to prove

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.398(ASR)/2012 ASSESSMENT YEAR:2009-10 PAN :ADGPR9457F INCOME TAX OFFICER, VS. SHRI GULAM RASOOL, WARD 1(1), JAMMU. S/O SH. MOHD. ISMAIL, SIDHRA, JAMMU. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. TARSEM LAL, DR RESPONDENT BY:SH.JOGINDER SINGH, CA DATE OF HEARING:29/11/2012 DATE OF PRONOUNCEMENT:30/11/2012 ORDER PER BENCH ; THIS APPEAL OF THE REVENUE ARISES FROM THE ORDER O F THE CIT(A), JAMMU, DATED 22.08.2012 FOR THE ASSESSMENT YEAR 200 9-10. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. CIT(A) WAS RIGHT IN DELETING THE ADDITION OF RS.68,72,000/- MA DE ON ACCOUNT OF SHORT TERMS CAPITAL GAIN ON THE LAND TRANSACTION S WHEN THE ONUS TO PROVE THAT A DOCUMENT FOUND DURING SURVEY D OES NOT BELONG TO THE ASSESSEE LIES SQUARELY UPON THE ASSES SEE AND EVERY DOCUMENT FOUND DURING THE COURSE OF SURVEY IS DEEME D TO ITA NO.398(ASR)/2012 2 BELONG TO THE ASSESSEE UNLESS IT IS PROVED BEYOND A NY DOUBT WITH CLINCHING EVIDENCES THAT THE SAME BELONG TO AN YONE ELSE. 2. ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. C IT(A) WAS RIGHT IN DELETING THE ADDITION OF RS.68,72,000/- MA DE ON ACCOUNT OF SHORT TERMS CAPITAL GAIN ON THE LAND TRANSACTION S BY RELYING UPON THE CASE LAW OF M/S. MAULI KUMAR K.SHAH 307 IT R 137 AND M/S. BANSAL STRIPS (P) LTD. 100 TTJ 665 WHICH A RE NOT PERTAIN TO THE OWNERSHIP OF THE DOCUMENTS FOUND DUR ING SURVEY AND IN ALL THESE, THE OWNERSHIP OF THE DOCUMENTS WA S NOT DENIED BY THE CONCERNED ASSESSEES 3. THE APPELLANT CRAVES TO AMEND OR ADD ANY ONE OR MORE GROUNDS OF APPEAL. 2. THE BRIEF FACTS AS ARISING FROM THE ORDER OF THE AO, ARE REPRODUCED HEREUNDER, FOR THE SAKE OF CLARITY AS GIVEN VIDE P ARA 2.2 TO 2.8 : 2.2. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, A PERUSAL OF THE BOOKS OF ACCOUNTS AND DOCUMENTS IMPOUNDED DURING TH E COURSE OF SURVEY PROCEEDINGS WAS CONDUCTED IN PRESENCE OF THE LD. COUNSEL FOR THE ASSESSEE ON 7.7.2011. A DOCUMENT IMPOUNDED AT P AGE 48 OF ANNEXURE A7 REVEALED INFORMATION WITH REGARD TO THE PURCHASES AND SALES OF LAND CONDUCTED BY THE ASSESSEE. A SCANNED COPY OF THE SAID DOCUMENT IS REPRODUCED BELOW: ITA NO.398(ASR)/2012 3 2.3. AS WOULD BE SEEN THE ABOVE DOCUMENT CONTAINS S PECIFIC INFORMATION ABOUT THE PURCHASE AND SALES LF LAND CO NDUCTED BY THE ASSESSEE. IN VIEW OF THE SAME THE LD. COUNSEL WAS R EQUESTED TO EXPLAIN AS TO HOW THE ABOVE TRANSACTION WERE ACCOUNTED FOR IN THE RETURN OF THE ASSESSEE. A COPY OF THE ABOVE DOCUMENT WAS ALSO SUP PLIED TO HIM. 2.4. IN RESPONSE TO ABOVE, THE LD. COUNSEL FOR THE ASSESSEE VIDE HIS LETTER DATED 16.12.2001, FURNISHED THE FOLLOWING EX PLANATION IN THIS REGARD: EXPLANATION REGARDING IMPOUNDED DOCUMENTS: A& PAGE 48 DOES NOT BELONG TO THE ASSESSEE. THE CALCULATION WRITTEN ON THE SAID PAGE NEITHER PERTAI NS TO THE ASSESSEE NOR WRITTEN IN ASSESSEES HAND WRITING. SI NCE THE ASSESSEE IS ENGAGED IN PROPERTY BROKERAGE BUSINESS, A NO OF CLIENTS AND BROKERS USED TO VISIT HIS OFFICE, THIS PAGE PROBABLY WAS LEFT BY SOME BROKER OR CLIENT .DURING THE SURV EY, THE INCOME TAX DEPARTMENT HAS IMPOUNDED ALL THE DOCUMEN TS, NO SALE/PURCHASE DEED, AGREEMENT TO SELL OR ANY OTHER MATERIAL HAS BEEN TO CORROBORATE THE ENTRIES MADE THEREIN. NO AD DITION THEREFORE CAN BE MADE ON THE BASIS OF SAID DOCUMENT . RELIANCE IS PLACED ON THE DECISION OF THE HONBLE H IGH COURT OF P & H IN THE CASE OF CIT VS. VISHAL RUBBER PRODUCTS (2003) 264 ITR 542 (P&H). IN THE SAID CASE A DOCUMENT IN T HE FORM OF BALANCE SHEET WAS FOUND AND SEIZED. THE LD. AO ON THE BASIS OF SAID BALANCE SHEET MADE ADDITIONS OF RS.1,54,879/- FOR INVESTMENT IN MACHINERY, RS.4,32,702/- FOR ADDITIO NS ON ACCOUNT OF STOCK AND RS.1,28,741/- ADDITION ON ACCO UNT OF BOGUS CREDITORS. HOWEVER, NO MATERIAL COULD BE FOU ND BY THE LD. ASSTT.CIT TO CORROBORATE THE ENTRIES MADE IN IM PUGNED BALANCE SHEET. IT WAS HELD THAT SINCE THE FINDING R ECORDED BY THE AO ON THE BASIS OF A SEIZED DOCUMENT THAT THE ASSE SSEE HAD CONCEALED INCOME WAS NOT SUPPORTED BY ANY TANGIBLE/CORROBORATIVE EVIDENCE, NO ADDITION CAN BE MADE ON THE BASIS OF SAID DOCUMENT. RELIANCE IS ALSO PLACED ON THE DECISION OF THE HON BLE DELHI HIGH COURT IN THE CASE OF CIT VS. VED PRAKASH CHOUD HARY (2008) 4 DTR 286, IN THIS CASE DURING THE SEARCH OP ERATION, AN ITA NO.398(ASR)/2012 4 MOU WAS FOUND IN WHICH ASSESSEE WAS SHOWN TO HAVE ADVANCED A SUM OF RS.25 LACS TO R & M , THOUGH ADM ITTED TO HAVE SIGNED THE MOU, REFUSED TO HAVE ADVANCED ANY A MOUNT TO R & M, HOWEVER, MADE ADDITION OF RS. 50 LAKHS ON TH E BASIS OF MOU. IT WAS HELD THAT THERE WAS NOT ENOUGH EVIDENCE TO ADD THE AMOUNT IN THE HANDS OF THE ASSESSEE. IN THE ABS ENCE OF CORROBORATIVE MATERIAL, NO ADDITION COULD BE MADE. RELIANCE IS ALSO PLACED ON THE DECISION OF THE HON BLE HIGH COURT OF GUJARAT IN THE CASE OF CIT VS. MAUILI KUMAR K. SHAH (2008) 307 ITR 137 (GUJ), IN THE SAID CASE THE NOTINGS ON THE SEIZED DIARY FOUND FROM THE PREMISES OF S IS TH E ONLY MATERIAL ON THE BASIS OF WHICH THE AO HAS MADE THE IMPUGNED ADDITIONS. THE AO HAS NOT BROUGHT ANY CORROBORATIVE MATERIAL ON RECORD TO PROVE THAT SUCH SALES WERE MADE AND ON MONEY WAS RECEIVED. IT WAS HELD THAT ADDITIONS MADE BY AO TOWARDS ON MONEY ON THE BASIS OF SEIZED PAPER ALONE WITHO UT ANY CORROBORATIVE EVIDENCE CANNOT BE SUSTAINED. 2.4. THE EXPLANATION OF THE LD. COUNSEL FOR THE ASS ESSEE HAS BEEN CONSIDERED. IT IS OBSERVED THAT HE HAS DISOWNED THE DOCUMENT ON THE PRETEXT THAT IT MIGHT BE LEFT BEHIND BY SOME BROKER S WHO MIGHT BE VISITING HIS PREMISES. THIS EXPLANATION IS NOT ACCE PTABLE. THE ONUS TO PROVE THAT A DOCUMENT FOUND DURING THE COURSE OF A SURVEY DOES NOT BELONG TO THE ASSESSEE LIES SQUARELY UPON HIM. EVER Y DOCUMENT FOUND DURING A SURVEY IS DEEMED TO BELONG TO THE ASSESSEE UNLESS IT IS PROVED BEYOND ANY DOUBT WITH CLINCHING DOCUMENTARY EVIDENC E THAT THE SAME BELONGS TO ANYONE ELSE. IN THIS CASE, THE ASSESSEE HAS NOT BEEN ABLE TO BRING ON RECORD TO SUBSTANTIATE HIS CLAIM THAT THE DOCUMENTS DOES NOT BELONG TO HIM. THUS, THE DOCUMENT UNDOUBTEDLY BELON GS TO THE ASSESSEE. THE CASE LAWS RELIED UPON BY THE LD. COUN SEL FOR THE ASSESSEE DO NOT PERTAIN TO THE OWNERSHIP OF THE DOC UMENTS FOUND DURING SURVEY. IN ALL THESE CASES, THE OWNERSHIP O F THE DOCUMENT WAS NOT DENIED BY THE CONCERNED. THUS, THE RATIO OF THE SE DECISIONS WILL NOT HELP THE CASE OF THE ASSESSEE. 2.5. NOW COMING TO THE INFORMATION CONTAINED IN THE ABOVE DOCUMENT IT IS SEEN THAT THERE IS SPECIFIC INFORMAT ION ABOUT THE FOLLOWING TRANSACTIONS: ITA NO.398(ASR)/2012 5 PARTICULARS AMOUNT (RS) PURCHASE OF 76 MARLAS OF LAND @ RS.53,000/-PER MARL A 40,28,000 PAYMENT MADE TOWARDS ITS PURCHASE 22,00,000 BALANCE PAYMENT REMAINING 18,28,000 SALE OF 76 MARLAS OF LAND @ RS.75,000/- PER MARLA 5 7,00,000 BALANCE PAYMENT BE MADE IN RESPECT OF PURCHASE ABOV E 18,28,000 BALANCE IN HAND 38,72,000 SALE OF ANOTHER 40 MARLAS OF LAND @ 75,000/- PER MA RLA 30,00,000 BALANCE IN HAND FROM SALE OF 76 MARLAS AND ADDITION AL 40 MARLAS (38,72,000 + 30,00,000 68,72,000 2.6. THE ABOVE TRANSACTIONS ARE QUITE SPECIFIC AND CANNOT BE SAID TO BE EVEN DEAF & DUMB TRANSACTIONS. THE ASSESSEE HAS CLEARLY MADE PURCHASES AND SALES OF LAND TO THE ABOVE EXTENT. NO EVIDENCE TO PROVE THAT THE TRANSACTION WERE MADE BY HIM ON BEHALF OF ANY CLIENT HAS ALSO NOT BEEN BROUGHT ON RECORD. THUS, THE ONLY ONE INFE RENCE THAT CAN BE DRAWN FROM THE ABOVE DOCUMENTS IS THAT THE TRANSACT IONS WERE CONDUCTED BY THE ASSESSEE FOR HIMSELF. HOWEVER, THE DOCUMENT DOES NOT MENTION THE NAME OR ADDRESSES OF THE PERSONS FR OM WHOM THE PURCHASES WERE MADE AND TO WHOM THE SALES WERE CON DUCTED. IT IS OBVIOUS THAT SUCH DETAILS HAVE NOT BEEN DELIBERATEL Y BEEN DISCLOSED BY THE ASSESSEE IN ORDER TO CONCEAL THE PARTICULARS OF HIS INCOME. HOWEVER, KEEPING IN VIEW THE SPECIFIC DETAILS OF TR ANSACTIONS DISCLOSED, IT DOES NOT NEED FURTHER CORROBORATION W ITH ANY OTHER EVIDENCE. THEREFORE, THERE IS NO DOUBT THAT THE ASS ESSEE INDULGED IN PURCHASE AND SALES OF THE LAND WHICH HE HAS NOT DIS CLOSED IN THE RETURN OF INCOME. BESIDES, THE DOCUMENT DOES NOT BEAR ANY DATE OF TRANSACTIONS. HOWEVER, SINCE THE DOCUMENT HAS BEEN FUND IN THE YEAR UNDER CONSIDERATION, IT CANNOT PERTAIN TO THE SUCC EEDING ASSESSMENT YEAR. THE ASSESSEE HAS NOT FURNISHED ANY EVIDENCE T HAT IT RELATES TO AN EARLIER ASSESSMENT YEAR AND THUS THE INCOME FROM TR ANSACTIONS IS TO BE ASSESSED IN THE YEAR OF ITS DISCOVERY I.E. THE ASSE SSMENT YEAR UNDER CONSIDERATION. 2.7. IN VIEW OF THE ABOVE FACTS, THE PROFIT OF THE ASSESSEE FROM THE SALES AND PURCHASES RECORDED IN THE ABOVE DOCUMENT IS ASSESSED AS UNDER: ITA NO.398(ASR)/2012 6 S.NO. PARTICULARS AMOUNT (RS) I) INCOME FROM SALE OF 76 MARLAS PURCHASE AMOUNT 40,28,000 SALE AMOUNT 57,00,000 PROFIT 16,72,000 II) INCOME FROM SALE OF 40 MARLAS PURCHASE AMOUNT SINCE NOT MENTIONED IN THE DOCUMENT ESTIMATED @ RS.53,000 PER MARLA FOR WHICH 76 MARLAS WERE PURCHASED BY THE ASSESSEE 21,20,000 SALE AMOUNT AS RECORDED IN THE DOCUMENT 30,00,000 PROFIT 8,80,000 THEREFORE TOTAL PROFIT FROM LAND TRANSACTIONS ADDE D TO THE INCOME OF THE ASSESSEE 25,52,000 2.8. IN ADDITION, AS PER THE ABOVE DOCUMENT THE ASS ESSEE PAID AN AMOUNT OF RS.22,00,000/- WHILE PURCHASING 76 MARLAS LF LAND. THIS AMOUNT OF PURCHASE IS NOT DISCLOSED IN THE RETURN O F INCOME OR THE DOCUMENTS ACCOMPANYING IT. THEREFORE, THE AMOUNT OF RS.22,00,000/- IS DEEMED TO BE THE INCOME OF THE ASSESSEE AS UNEXP LAINED INVESTMENT INN PURCHASE OF LAND. BESIDES, THE ASSESSEE ALSO SO LD 40 MARLAS OF LAND. THIS LAND MUST ALSO HAVE BEEN PURCHASED BY T HE ASSESSEE BEFORE SELLING IT. THE INVESTMENT IN THE PURCHASE HAS BEEN ESTIMATED AT RS.21,20,000/- AS DETAILED ABOVE. THIS AMOUNT HAS A LSO NOT BEEN DISCLOSED BY THE ASSESSEE IN THE RETURN OR IN THE A CCOMPANYING DOCUMENTS. ACCORDINGLY, THE AMOUNT OF RS.21,20,000/ - IS ALSO DEEMED TO THE INCOME OF THE ASSESSEE AS UNEXPLAINED INVEST MENT IN PURCHASE OF 40 MARLAS OF LAND. ACCORDINGLY, TOTAL ADDITION O F RS.43,20,000 IS MADE TO THE INCOME AS UNEXPLAINED INVESTMENT MADE O R PURCHASE OF LAND. 3. THE LD. CIT(A) DELETED THE ADDITIONS FOR THE FOL LOWING REASONS: I) THERE IS NO NAMES OF TRANSACTING PARTIES IN TH E DOCUMENT. II) THERE IS NO LOCATION OR ADDRESS OF LAND, MENTIONED ANYWHERE IN THE DOCUMENT. III) THERE IS NO DATE MENTIONED ON THE DOCUMENT ITA NO.398(ASR)/2012 7 IV) THE ASSESSEE HAD DENIED BEFORE AO THAT THE DOCUMENT WAS IN HANDWRITING. THERE IS NO ALLEGATION OF THIS NATURE EVEN MADE BY THE AO. V) THERE IS NOTHING ON RECORDS THAT ESTABLISHES THAT T HE DOCUMENTS PERTAIN TO ASSESSEE IN ANY WAY. VI) THE DOCUMENT IS IN SHAPE OF A HANDWRITTEN LOOSE SLI P IS NOT CORROBORATED BY ANY OTHER DOCUMENT, MATERIAL OR EVI DENCE. VII) THERE IS A LOT FORCE IN ASSERTION OF ASSESSEE MADE BEFORE AO AND ME THAT THOUGH CERTAIN SALE DEEDS ETC. WERE IMPOUN DED BUT THE TRANSACTIONS ON THIS DOCUMENT ARE NOT CORROBORATED OR CONNECTED WITH ANY OF THEM. THE ASSESSMENT ORDER CL EARLY SHOWS. VIII) NO MODE OF PAYMENTS, DETAILS OF ANY BANK ACCOUNT ET C. ARE ALSO MENTIONED. IX) IN THE ASSESSMENT ORDER THE AO HAS ACCEPTED THAT NO NAMES OF TRANSACTING PARTIES, DATE OF TRANSACTIONS ETC. ARE MENTIONED YET HE WENT ON TO ADD THE SAME AS INCOME OF ASSESSEE FO R WHICH VAGUE AND UNSUSTAINABLE OBSERVATIONS ARE MADE THE B ASIS. 4. THE LD. CIT(A) RELIED UPON THE DECISIONS OF HON BLE GUJARAT HIGH COURT IN THE CASE OF MAULI KUMAR K. SHAH 307 ITR 13 7 AND HONBLE DELHI HIGH COURT IN THE CASE OF BANSAL STRIPS (P) LTD. 10 0 TTJ 665. 5. THE LD. DR, SH. TARSEM LAL, ARGUED THAT THE DOCU MENT WAS IMPOUNDED DURING THE COURSE OF SURVEY PROCEEDINGS I N WHICH THE ASSESSEE HAS SHOWN PURCHASES AND SALES OF LAND AND PROFIT EA RNED THEREON. SIMPLY DISOWNING THE PAPER DOES NOT ABSOLVE THE ASSESSEE FOR GIVING ANY EXPLANATION, ESPECIALLY OF A DOCUMENT WHICH HAS BEE N FOUND IN THE POSSESSION OF THE ASSESSEE. IF IT IS DONE SO, THE P URPOSE OF SURVEY BY THE INCOME TAX DEPARTMENT SHALL BE FORFEITED, SINCE EVE RY ASSESSEE WILL DISOWN ANY DOCUMENT SO FOUND BY CLAIMING THE SAME AS DEAF & DUMB. THE ASSESSEE ITA NO.398(ASR)/2012 8 HAS NOT SUBMITTED ANY EXPLANATION ABOUT THE TRANSAC TIONS NOTED ON THE AMENDED DOCUMENT AND HAS NOT BROUGHT ON RECORD ANY PERSON OR ANY PROPERTY WITH REFERENCE TO THE NOTINGS OR TRANSACTI ONS OF THE SAID IMPOUNDED DOCUMENT. THERE IS NOTHING ON RECORD THAT THE DOCUM ENT DOES NOT BELONG TO THE ASSESSEE. SIMPLY THE ASSESSEE COULD NOT SUBMIT ANY EXPLANATION ABOUT THE TRANSACTIONS FOUND NOTED ON THE IMPOUNDED DOCUMENTS WHICH THE ASSESSEE DID NOT EXPLAIN FOR THE REASONS BEST KNOWN TO HIM. THEREFORE, THE RELIANCE PLACED BY THE ASSESSEE IN HIS SUBMISSIONS IN LETTER DATED 16.12.2011 CAN NOT HELP IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE. HE FURTHER ARGUED THAT THE DOCUMENT IS SELF SPEAKING DOCUMENT WHICH S PEAKS OF THE PROFITS OF RS.25.52 LAKHS AND THE UNEXPLAINED EXPENDITURE OF R S.43.20 LAKHS WHICH HAS RIGHTLY BEEN ADDED TO THE INCOME OF THE ASSESSEE BY THE AO. LD. CIT(A) HAS NOT TAKEN THE FACTS OF THE PRESENT CASE IN THE RIGH T SPIRIT. 6. ON THE OTHER LAND, THE LD COUNSEL FOR THE ASSESS EE, SH. JOGINDER SINGH, CA, FIRST OF ALL, RELIED UPON THE ORDER OF THE LD. CIT(A) THAT THE DOCUMENT IS DEAF & DUMB. IT DOES NOT SPEAK OF THE ADDRESS OF T HE LAND, DATE OF TRANSACTION, NOT WRITTEN IN THE HANDS OF THE ASSES SEE AND MODE OF PAYMENT. ITA NO.398(ASR)/2012 9 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THERE IS NO DISPUTE TO THE FACT THAT DURING THE COU RSE OF SURVEY CERTAIN DOCUMENTS AND BOOKS OF ACCOUNT WERE IMPOUNDED. THER E IS NO DISPUTE TO THE FACT THAT THE IMPOUNDED DOCUMENT DEPICTS PROFIT OF RS.25.52 LAKHS AND UNEXPLAINED INVESTMENT OF RS.43.20 LAKHS. IT IS ALS O NOT UNDER DISPUTE THAT THE ASSESSEE HAS NOT SUBMITTED ANY EXPLANATION OF SUCH IMPOUNDED DOCUMENT ON WHICH THE SAID UNEXPLAINED PROFIT OR UN EXPLAINED EXPENDITURE OF RS.25.52 LAKHS AND RS.43.20 LAKHS RESPECTIVELY I S NOTED. NOTHING HAS BEEN BROUGHT ON RECORD THAT SUCH IMPOUNDED DOCUMENT DOES NOT BELONG TO THE ASSESSEE BUT BELONGS TO SOMEBODY ELSE. SIMPLY SUBMI TTING THE EXPLANATION THAT THE DOCUMENTIS DOES NOT BELONG TO THE ASSESSEE OR DEAF & DUMB AND THEREAFTER RELYING UPON THE DECISION OF VARIOUS COU RTS OF LAW DOES NOT ABSOLVE THE RESPONSIBILITY OF THE ASSESSEE FOR SUBM ITTING THE EXPLANATION ABOUT THE IMPOUNDED DOCUMENT. THE DOCUMENT SO FOUND AND IMPOUNDED BY THE INCOME TAX DEPARTMENT HAS TO BE EXPLAINED BY TH E ASSESSEE UNLESS PROVED THAT IT IS OWNED BY SOMEBODY ELSE. THE ASSES SEE, IN THE PRESENT CASE, HAS NOT DONE SO. 7.1. ONCE A DOCUMENT IS FOUND IN POSSESSION OF THE ASSESSEE, WHICH IS NOT UNDER DISPUTE IN THE PRESENT CASE, THE BURDEN LIES ON THE ASSESSEE TO EXPLAIN ITA NO.398(ASR)/2012 10 THE NATURE OF TRANSACTIONS RECORDED IN THE IMPOUNDE D MATERIAL. IN THE PRESENT CASE, SINCE THE ASSESSEE COULD NOT SUBMIT ANY COGEN T EXPLANATION THAT SAID IMPOUNDED DOCUMENT BELONGS TO SOMEBODY ELSE. THEREF ORE, A REASONABLE PRESUMPTION OF THE ASSESSEE, HAS TO BE DRAWN THAT S UCH IMPOUNDED DOCUMENT BELONGS TO THE ASSESSEE. 7.2. ONCE THE OWNERSHIP OF THE DOCUMENT IS HELD TO BE THAT OF THE ASSESSEE, THEN THE FACTS OR NOTING FOUND ARE VERY CLEAR WHICH SHOWS THE INVESTMENTS MADE AND SOLD AND PROFIT EARNED. MERE NON-SUBMISSIO N OF ANY EXPLANATION BY SUBMITTING THE SAID IMPOUNDED DOCUMENT AS DEAF AND DUMB OR OF BEARING NO. PROPERTY NUMBERS, DATE OF TRANSACTIONS ETC. AS OBSERVED BY LD. CIT(A), WILL NOT ABSOLVE THE ASSESSEE FOR NOT RECORDING THE SAME IN HIS BOOKS OF ACCOUNT. SUCH TRANSACTIONS ARE NOT RECORDED IN THE BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE, IS NOT UNDER DISPUTE. T HE NOTINGS IN THE IMPOUNDED DOCUMENT CLEARLY DEPICTS THE STATEMENT OF PROFIT EARNED AND INVESTMENTS MADE & SOLD. IT IS A GENERAL PRACTICE THAT WHEN FINAL ACCOUNT IS PREPARED, THEN NO DATE OR PROPERTY NUMBER ETC. IS M ENTIONED, WHICH HAS BEEN DONE IN THE PRESENT CASE. THERE IS NO QUESTION OF E STIMATIONS OF ANYTHING IN THE PRESENT IMPOUNDED DOCUMENTS, WHICH ARE SELF-SP EAKING FROM THE DOCUMENT ITSELF. THERE IS NO ON-MONEY OR ROUGH EST IMATES IN THE IMPOUNDED DOCUMENTS. THE AO HAS NOT AT ALL ACTED ON SURMISES BUT ON FACTS OF THE ITA NO.398(ASR)/2012 11 IMPOUNDED DOCUMENTS. THE FINDINGS OF THE AO ARE BAS ED ON THE DOCUMENT IMPOUNDED, WHICH CLEARLY SHOWS THE PURCHASES & SALE S. THE DECISION OF HONBLE GUJRAT HIGH COURT IN THE CASE OF MAULIKUMAR K. SHAH (SUPRA), THEREFORE IS NOT APPLICABLE IN THE PRESENT FACTS A ND CIRCUMSTANCES OF THE CASE. 7.3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E FINDINGS OF THE LD. CIT(A) AS MENTIONED HEREINABOVE AND ARGUMENTS OF TH E LD. COUNSEL FOR THE ASSESSEE AND THE RELIANCE ON OTHER DECISIONS OF VA RIOUS COURTS OF LAW WHICH HAVE BEEN PERUSED BY US DOES NOT HELP THE ASSESSEE. THE LD. CIT(A) HAS NOT CONSIDERED THE FINDINGS OF THE AO THAT THE ASSESSEE HAS NOT SUBMITTED ANY COGENT EXPLANATION THAT THE IMPOUNDED DOCUMENT DOES NOT BELONG TO THE ASSESSEE OR BELONGS TO SOMEBODY ELSE. FURTHER, THE LD. CIT(A) HAS NOT BROUGHT ON RECORD THAT THE PROFITS SO EARNED OUT OF THE BOOKS I.E. UNEXPLAINED PROFIT AND UNEXPLAINED EXPENDITURE HAS BEEN RECODED BY THE ASSESSEE IN HIS BOOKS OF ACCOUNT OR HAS BEEN RECORDED BY SOMEBODY E LSE. THEREFORE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE RELIANCE P LACED BY THE LD. CIT(A) ON VARIOUS CASE LAWS DOES NOT HELP THE ASSESSEE AND AC CORDINGLY THE LD. CIT(A) IS NOT JUSTIFIED IN DELETING THE ADDITION MADE BY T HE AO FOR THE REASONS MENTIONED HEREINABOVE. ACCORDINGLY, BOTH THE GROUND S OF REVENUE ARE ALLOWED. ITA NO.398(ASR)/2012 12 8. IN THE RESULT, THE APPEAL OF THE REVENUE IN ITA NO.398(ASR)/2012 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30TH NOVEMBER, 2012. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 30TH NOVEMBER, 2012 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH.GHULAM RASOOL, JAMMU 2. THE ITO WARD 1(1), JAMMU. 3. THE CIT(A), JAMMU 4. THE CIT, JAMMU 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.