Shri K.H. Bhaya, Ahmedabad V. The Income tax Officer,Ward-9(4), Ahmedabad

ITA 41/AHD/2005

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94672 (ITAT-AHMEDABAD)
• Duration Of Justice: 10 year(s) 9 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 20-10-2015
• Assessment Year: 1989-1990
• Appeal Filed On: 05-01-2005
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Assessee Lawyers: S N SOPARKAR
• Keywords: Share purchase agreement; Opportunity of being heard; Deemed to accrue or arise in india; Revised return
• Section: 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMEDABAD BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER, AND SHRI S. S. GODARA, JUDICIAL MEMBER. ITA. NO. 41/AHD/2005 (ASSESSMENT YEAR:1989-90) SHRI K. H. BHAYA C-503, ROSEWOOD APARTMENT, JODHPUR CHAR RASTA, SATELLITE, AHMEDABAD APPELLANT VS. INCOME TAX OFFICER, WARD 9(4), AHMEDABAD RESPONDENT / BY ASSESSEE : SHRI S. N. SOPARKAR, A.R. / BY REVENUE : SHRI DINESH SINGH, SR.D.R. /DATE OF HEARING : 20.10.2015 /DATE OF PRONOUNCEMENT : 29.10.2015 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 1989-90, ARISES FROM ORDER OF THE CIT - XII, AHMEDABAD, DATED 15.10 .2004 PASSED IN PROCEEDINGS U/S.143 R.W.S. 254 OF THE INCOME TAX ACT, 1961, HEREINAFTER THE ACT. ITA NO.41/AHD/2005 (SHRI K. H. BHAYA VS. ITO) A.Y. 1989-90 - 2 - 2. THE ASSESSEES SOLE SUBSTANTIVE GROUND CHALLENGE S ACTION OF BOTH THE LOWER AUTHORITIES IN ASSESSING CASH FOUND OF RS.24,33,770/- DURING CBI SEARCH; IN HIS HANDS. TH E PERUSAL OF THE CASE FILE REVEALS THAT THE ASSESSEE HAS EXPIRED ON 17.01.2012 DURING THE PENDENCY OF THE INSTANT APPEAL. HE WAS THE SERVING INSPECTOR GENERAL OF POLICE IN GUJARAT STATE. THE CENTRAL BUREAU OF INVESTIGATION THE CBI CONDUCTED A SEARCH AT HI S OFFICE AND RESIDENTIAL PREMISES ON 18.08.1988. IT ALLEGEDLY S EIZED A SUM OF RS.5,15,720/- FROM OFFICE AND RS.19,18,050/- FROM A SSESSEES RESIDENCE. THIS GROSS AGGREGATE SUM RECOVERED COMES TO RS.24,33,770/-. THE ASSESSEE FILED RETURN ON 31.03. 1991 DECLARING INCOME OF RS.38,283/-. HE SUBMITTED A NO TE WITH THE RETURN CLARIFYING ABOUT THE ABOVE STATED SEARCH AND STATED THAT THIS SEIZED MONEY DID NOT BELONG TO HIM. HIS CASE THROUGHOUT HAS BEEN THAT HIS BROTHER-IN-LAW, NAMELY, SHRI CHAN DWANI FROM MUMBAI OWNED THIS MONEY. THE ASSESSING OFFICER FRA MED REGULAR ASSESSMENT ON 22.02.1992 ASSESSING THE IMPUGNED CAS H SUM IN ASSESSEES HAND BY REJECTING HIS PLEA OF SHRI CHAND WANI BEING OWNER OF THE MONEY IN QUESTION. THE CIT(A) UPHELD ASSESSING OFFICERS ACTION IN ORDER DATED 18.09.1992. THE AS SESSEE FILED ITA NO.4608/AHD/1992 BEFORE THE TRIBUNAL. A CO-ORDINAT E BENCH IN ITS ORDER DATED .06.1998 REMITTED THIS ISSUE BACK TO THE ASSESSING OFFICER AS UNDER: 4. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PART IES AND PERUSED THE MATERIALS ON RECORD INCLUDING THE DETAILED PAPE R-BOOK FILED BY THE ASSESSEE'S COUNSEL. WE HAVE ALSO GONE THROUGH THE CASE LAWS CITED BY BOTH THE PARTIES. WE FIND THAT THE IMPUGNED ADDITIO N MADE BY THE A.O. IN THE CASE OF THE ASSESSEE TOWARDS UNEXPLAINED CAS H HAD ARISEN NOT OUT OF SEARCH MADE U/S.132 OF THE IT ACT, 192 OF TH E IT ACT, BUT OUT OF SEARCH MADE BY THE CBI AUTHORITIES AT THE OFFICE AS WELL AS RESIDENTIAL PREMISES OF THE ASSESSEE. ITA NO.41/AHD/2005 (SHRI K. H. BHAYA VS. ITO) A.Y. 1989-90 - 3 - 4.1 THE ASSESSEE, DURING THE COURSE OF SEARCH BY TH E CBI AUTHORITIES, HAD EXPLAINED THAT THE CASH SEIZED BELONGED TO HIS BROTHER-IN-LAW SHRI GOPE CHANDWANI, WHO WAS SETTLED IN BOMBAY AND BEING DESIROUS STARTING INDUSTRY IN GUJARAT, WAS STAYING WITH THE ASSESSEE FOR MORE THAN SIX MONTHS. SHRI GOPE CHANDWANI, WHO WAS ALSO PRESENT DURING THE CBIS SEARCH HAD ALSO REITERATED TO THE CBI AU THORITIES THAT THE CASH FOUND BELONGED, TO HIM (MR. GOPE CHANDWANI). HE HAD ALSO FILED AN AFFIDAVIT BEFORE THE HONBLE GUJARAT HIGH COURT TO THIS EFFECT. HE HAD ALSO FILED REVISED RETURNS ADMITTING THE SEIZED CAS H AS HIS INCOME FOR VARIOUS ASSESSMENT YEARS AND WAS ASSESSED BY THE CONCERNED A.O. OF BOMBAY ON PROTECTIVE BASIS. HOWEVER,THE ASSESSEE DID NOT PRODUCE DETAILS OF ASSESSMENT IN THE CASE OF SHRI GOPE CH ANDWANI BEFORE THE A.O. AS THE CASE CASE WAS GETTING TIME BARRED AT T HE END OF MARCH 1992, THE A.O. FELT THAT IT WAS NOT POSSIBLE TO GIV E ANY FURTHER TIME AS REQUIRED BY THE ASSESSEE FOR THE ASSESSMENT DETAI LS OF MR. GOPE CHANDWANI COMPLETED THE ASSESSMENT ON THE BASIS OF MATERIALS AVAILABLE BEFORE HIM AT THE RELEVANT TIME (VIDE PAR A-6 / PAGE 4 OF THE ASSESSMENT ORDER). HOWEVER, THE ASSESSEE IS FOUND TO HAVE PRODUCED THE DETAILS REGARDING THE ASSESSMENT IN THE CASE OF SHRI GOPE CHANDWANI BEFORE THE CIT(A)(VIDE PARA-4 / PAGE 11 OF THE CIT(A)S ORDER). THE CIT(A) HAD NOTICED THAT THE CONCERNED A.O. (CIR. 22(1) OF BOMBAY) WHILE FRAMING THE ASSESSMENT IN THE CASE O F SHRI GOPE CHANDWANI HAD OBSERVED AS UNDER : 'SINCE THE ASSESSES HAS NOT GIVEN ANY DETAILS FOR C ONSULTANCY AND SPECULATION BUSINESS, THE INCOME IS BEING TAXED WITHOUT PREJUDICE TO ANY ACTION WHICH COULD BE INITIATED IN THE CASE OF SHRI K.H. BHAYA, FROM WHOSE RESIDENCE CASH HAS BEEN SEIZED. RELYING ON THE ABOVE REMARKS IN THE CASE OF SHRI GO PE CHANDWANIS ASSESSMENT AND THE FACT THAT THE ASSESSMENTS WERE M ADE IN HIS CASE ON PROTECTIVE BASIS, THE CIT(A) CONFIRMED THE SUBST ANTIVE ASSESSMENTS IN THE CASE OF SHRI K.H. BHAYA THE ASSESSEE. IT IS CLEAR FROM THE RECORDS BEFORE US THAT NEITHER MR. K. H. BHAYA NOR MR. GOPE CHANDWANI WAS EXAMINED BY THE A.O. OF AHMEDABAD BEFORE FINAL IZING THE ASSESSMENT, ALTHOUGH A LETTER WAS SENT TO THE ASSES SEE CALLING UPON HIM TO EXPLAIN THE SOURCE OF CASH SEIZED BY THE CBI AUTHORITIES, WHICH WAS ALSO REPLIED BY THE ASSESSEE. HOWEVER, NOT SAT ISFIED WITH THE REPLY OF THE ASSESSEE, THE A.O. PROCEEDED TO FINALIZED TH E ASSESSMENT BY MAKING THE IMPUGNED ADDITION OF RS.24,33,770/-. IN CIDENTALLY, WE ALSO NOTE THAT THE CBI AUTHORITIES HAD REQUESTED THE A.O . OF BOMBAY NOT TO CONCLUDE THE ASSESSMENT IN THE CASE OF SHRI GOPE CH ANDWANI. HOWEVER, WE FIND THAT THE LETTERS OF THE CBI WAS IG NORED BY THE CONCERNED A.O., WHO MADE THE PROTECTIVE ASSESSMENT IN THE CASE OF SHRI GOPE CHANDWANI. WHILE CONFIRMING THE ADDITION MADE BY THE A.O., THE LD. CIT(A) HAD REFERRED TO THE DECISION OF THE HON BLE APEX COURT IN THE CASE OF CHUHARMAL VS. CIT(A) (1998) 172 ITR 250 (S C). THE HEAD NOTES OF THE DECISION READS AS UNDER: ITA NO.41/AHD/2005 (SHRI K. H. BHAYA VS. ITO) A.Y. 1989-90 - 4 - DEEMED INCOME UNEXPLAINED VALUABLE ARTICLES SE ARCH AND SEIZURE BY CUSTOMS AUTHORITIES WRIST WATCHES SEIZ ED FROM ASSESSEES BEDROOM NO EXPLANATION GIVEN AT THE TI ME OF SEIZURE ASSESSEE NOT TAKING OPPORTUNITY GIVEN TO SHOW THA T HE WAS NOT OWNER VALUE OF WATCHES SEIZED CAN BE DEEMED TO BE INCOME OF ASSESSEE I.T. ACT, 1961 SEC. 69-A. LET US NOW CONSIDER THE DECISION OF THE HONBLE CAL CUTTA HIGH COURT IN THE CASE OF MOHAN B. SAMTANI VS. CIT (1993) 199 ITR 370. THE HONBLE CALCUTTA HIGH COURT IN THE ABOVE DECISION HAS OBSER VED AS UNDER: UNDER THE PROVISIONS OF SEC.69A OF THE IT ACT, 196 1, IF THE ASSESSEE IS FOUND TO BE THE OWNER OF ANY MONEY, BUL LION, JEWELLERY OR OTHER VALUABLE ARTICLE AND IT IS NOT R ECORDED IN THE BOOKS OF ACCOUNT AND HE HAS NO SATISFACTORY EXPLANA TION REGARDING IT, THE VALUE OF THE BULLION, JEWELLERY O R VALUABLE ARTICLE MAY BE DEEMED TO BE HIS INCOME. THE LIABILITY WILL ARISE U/S.69A ONLY IF IT IS FOUND THAT THE ASSESSEE IS THE OWNER OF THE SAID ARTICLE OR JEWELLERY OR BULLION. WE FIND THAT IN THE SAID DECISION OF THE HON'BLE CA LCUTTA HIGH COURT, THE HON'BLE HIGH COURT CONSIDERED THE DECISION OF THE APEX COURT IN THE CASE OF CHUHARMAL VS. CIT (SUPRA) AND THE SAME WAS JUSTIFIED. IT IS OBVIOUS FROM THE ABOVE DECISIONS THAT THE BURDEN OF PROVING THAT THE CASH FOUND DID NOT BELONG TO THE ASSESSEE PRIMARILY LIES WITH THE ASSESSEE AND NOT ON THE DEPARTMENT. HOWEVER, IN TH E CASE BEFORE US, THE ASSESSEE HAD NOT ONLY EXPLAINED THAT THE CASH D ID NOT BELONG TO HIM BUT ALSO DISCLOSED THE IDENTITY OF THE PERSON TO WHOM IT BELONGED. FURTHER MORE, THE ALLEGED OWNER OF THE CASH, WHO WA S PRESENT DURING THE CBI SEARCH, HAD ALSO ADMITTED THAT HE WAS THE OWNER OF THE CASH. WE FIND THAT THE A.O. HAD NOT EXAMINED EITHER TH E ASSESSEE THE ALLEGED OWNER SHRI GOPE CHANDWANI TO ESTABLISH OR TO DETERMINE THE REAL OWNERSHIP OF THE CASH SEIZED. 4.2 WE ARE OF THE CONSIDERED VIEW THAT BEFORE FINAL ISING THE ASSESSMENT ON SUBSTANTIVE BASIS, THE A.O. SHOULD HA VE EXAMINED THE ASSESSES AND HIS BROTHER-IN-LAW; AND AS SUCH WE F EEL THAT THE POSITION IS DEBULOUS. CONSIDERING THE FACTS & CIRCUMSTANCES OF THE CASE AND IN LIGHT OF THE ABOVE DISCUSSION AND THE ARGUMENTS OF BOTH THE SIDES, WE FEEL THAT, IN THE INTEREST OF JUSTICE AND EQUITY, T HE ORDER OF THE CIT(A) SHOULD BE SET ASIDE AND THE MATTER MAY BE RESTORED TO THE FILE OF THE A.O. WITH A DIRECTION TO DRAW A CONCLUSION, ACCO RDING TO LAW, KEEPING IN VIEW THE DECISION OF THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF MOHAN B. SATANI (SUPRA), WHICH WAS RENDERED AFTER D ISTINGUISHING THE DECISION OF APEX COURT IN THE CASE OF CHUHARMAL (S UPRA). BEFORE ARRIVING AT A CONCLUSION AS TO THE OWNERSHIP OF T HE CASH, THE A.O. IS DIRECTED TO EXAMINE SHRI K.H. BHAYA AND SHRI GOPE CHANDWANI BY GIVING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE M. WE DIRECT THE ASSESSEE TO COOPERATE WITH THE A.O. IN ARRIVING AT PROPER CONCLUSION. ORDERED ACCORDINGLY. ITA NO.41/AHD/2005 (SHRI K. H. BHAYA VS. ITO) A.Y. 1989-90 - 5 - 3. THE ASSESSING OFFICER TOOK UP CONSEQUENTIAL PROC EEDING. HE APPEARS TO HAVE ISSUED SECTION 131 SUMMONS TO SHRI CHANDWANI. HE DID NOT APPEAR. THE ASSESSEE PLACED ON RECORD SOME DOCUMENTS ANNEXURES A TO I. THE ASSESSING OFF ICER OBSERVED IN CONSEQUENTIAL ASSESSMENT ORDER 27.12.20 00 THAT ANNEXURES A & B HAVE BEEN ISSUED BY THE SECRETARY, GSFC, AHMEDABAD AND REGIONAL MANAGER, GIDC, MEHSANA; RESP ECTIVELY ADDRESSED TO M/S. KRISHNA ENTERPRISE, NAVRANGPURA, AHMEDABAD. THE ASSESSING OFFICER WAS OF THE VIEW T HAT THESE DOCUMENTS NOWHERE PROVED ANY NEXUS WITH EITHER ASSE SSEE OR SHRI CHANDWANI. THEREAFTER, HE CAME ACROSS ANNEXUR ES C TO E I.E. ANTICIPATORY BAIL APPLICATION OF MR. CHANDWANI CLAIMING HIMSELF TO BE OWNER OF THE CASH SEIZED AND APPLICAT IONS FILED BEFORE THE CBI AND HONBLE FINANCE MINISTER RESPECT IVELY SEEKING RELEASE OF SHARE CERTIFICATES , FIXED DEPOSITS AND CASH SIZED ETC. ANNEXURE F & G HAPPENED TO BE CORRESPONDENCE BETWEE N THE CBI AND INCOME TAX AUTHORITY. ANNEXURE H & I TURNED OU T TO BE SECTION 273A APPLICATION COMPRISING OF VOLUNTARY DI SCLOSURE ALONG WITH WAIVER OF PENALTY AND INTEREST. ANNEXUR E I APPEARED TO BE RELEASE ORDER OF THE LD. SPECIAL JUDGE, AHMED ABAD QUA THE SHARE CERTIFICATE, FIX DEPOSITS INCLUDING CASH AMOU NT IN FAVOUR OF MR. CHANDWANI. 4. THE ASSESSING OFFICER DID NOT AGREE WITH ASSESSE ES CLAIM THAT SHRI CHANDWANI WAS OWNER OF THE MONEY IN QUEST ION IN VIEW OF THE ABOVE STATED DOCUMENTARY EVIDENCE. HE WAS O F THE OPINION THAT THERE WAS NO DOCUMENTARY EVIDENCE PROVING THAT SHRI CHANDWANI CARRIED OUT ANY SPECULATION OR CONSULTANC Y BUSINESS AS CLAIM IN REVISED RETURNS FILED POST SEARCH ON 14 .09.1988 FOR ITA NO.41/AHD/2005 (SHRI K. H. BHAYA VS. ITO) A.Y. 1989-90 - 6 - A.YS. 1983-84 TO 1988-89 STATING INCOMES OF RS.2,27 ,480/-, RS.3,44,058/-, RS.4,63,365/-, 6,33,097/-, 7,38,267/ - & RS.8,32,834/- RESPECTIVELY. HE TOOK NOTICE OF THE FACT THAT SHRI CHANDWANI DID NOT ATTEND THE PROCEEDINGS AND ALSO T HAT THE AUTHORITIES IN MUMBAI HAD FRAMED A PROTECTIVE ASSES SMENT IN HIS CASE ON 22.03.1991 THEREBY REJECTING HIS CLAIM TO H AVE OWNED THE MONEY IN QUESTION. THE ASSESSING OFFICER ACCORDING LY ASSESSED THE IMPUGNED SUM OF RS.24,33,770/- AS ASSESSEES IN COME BY INTER ALIA QUOTING SECTION 110 OF THE EVIDENCE ACT AND AFTER TAKING COGNIZANCE OF THE RELEVANT DEVELOPMENTS OF R ELEASE PROCEEDINGS IN THE CBI COURT QUA THE CASH SEIZED AN D OTHER DOCUMENTS. 5. THE CIT(A) AFFIRMS THE ASSESSING OFFICERS ACTIO N UNDER CHALLENGE. 6. THE ASSESSEE REFERS TO ABOVE NARRATION OF FACTS BEFORE US. HE STATES THAT SHRI CHANDWANI HAS CLAIMED HIMSELF TO B E OWNER OF THE CASH SEIZED THROUGHOUT RIGHT FROM THE BEGINNING TILL THE DATE. VARIOUS CORRESPONDENCES AT ASSESSEES BEHEST, ON BE HALF OF MR. CHANDWANI ARE QUOTED IN SUPPORT OF THE PLEA THAT TH E SUM IN QUESTION HAS BEEN WRONGLY ASSESSED IN THE INSTANT C ASE ON SUBSTANTIVE BASIS. OUR ATTENTION IS INVITED TO THE CASE LAW (1996) 222 ITR 831 BANYAN & BARRY VS. CIT THAT A PROTECTI VE ASSESSMENT IN MR. CHANDWANIS CASE FRAMED HEREINABO VE IS AT PAR WITH A SUBSTANTIVE ONE AND THE DEPARTMENT IS NO T AT LOSS ANY CASE EVEN IF ASSESSEES ARGUMENTS ARE ACCEPTED. TH E AUTHORIZED REPRESENTATIVE STATES AT THE BAR THAT THE REVENUE C AN APPROPRIATE THE CASH SEIZED LYING UNRELEASED WITH T HE SPECIAL ITA NO.41/AHD/2005 (SHRI K. H. BHAYA VS. ITO) A.Y. 1989-90 - 7 - COURT. THE ASSESSEE ACCORDINGLY PRAYS FOR ACCEPTAN CE OF ITS APPEAL. 7. THE REVENUE STRONGLY SUPPORTS THE ACTION OF THE LOWER AUTHORITIES IN ASSESSING THE IMPUGNED CASH SEIZED D URING CBI SEARCH AMOUNTING TO RS.24,33,770/- FROM ASSESSEES OFFICE AND RESIDENCE IN HIS HANDS. IT REFERS TO THE RELEVANT PRESUMPTION IN THE EVIDENCE LAW THAT A PERSON FROM WHOM THE SUM IN QUESTION IS SEIZED IS TREATED AS ITS OWNER. OUR ATTENTION I S INVITED TO THE FACT THAT NONE OF THE STATUTORY AUTHORITY OR THE LD . SPECIAL COURT HAS EVER ACCEPTED MR. CHANDWANIS CLAIM OF OWNING T HE CASH SUM IN QUESTION. HIS SOURCE OF THE CLAIM AMOUNT IS ALS O STATED TO BE UNEXPLAINED THROUGHOUT. THE REVENUE ARGUES THAT MR. CHANDWANI HAD NO MEANS TO POSSESS THIS MONEY BEING A SALARIED EMPLOYEE. ITS CASE IS THAT ASSESSEES ARGUMENT SEE KING TO SHIFT ASSESSMENT OF THE CASH AMOUNT IN QUESTION TO THAT I N CASE OF MR. CHANDWANI DESERVED TO BE REJECTED. 8. WE AFFORDED REBUTTAL OPPORTUNITY TO LD. AUTHORIZ ED REPRESENTATIVE. HE SUBMITS THAT MR. CHANDWANI WAS A MAN OF MEANS. AND THAT WE ARE NOT DECIDING MR. CHANDWANI S CASE AT ALL BUT THAT OF THE ASSESSEE. HE ACCORDINGLY REITERATES HIS ARGUMENT HEREINABOVE TO PRESS FOR ACCEPTANCE OF THE INSTANT APPEAL. 9. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO RIVA L CONTENTIONS. CASE FILE PERUSED. THERE IS NO DISPU TE ABOUT THE FACTUAL POSITION THAT THE CBI HAS CONDUCTED A SEARC H ON 18.08.1988 AT ASSESSEES OFFICE AND RESIDENTIAL PRE MISES THEREBY RECOVERING THE SUMS IN QUESTION OF RS.5,15,720/- AN D ITA NO.41/AHD/2005 (SHRI K. H. BHAYA VS. ITO) A.Y. 1989-90 - 8 - RS.19,18,050/-; RESPECTIVELY TOTALING TO RS.24,33,7 70/-. THE ASSESSEES CASE FROM THE VERY BEGINNING APPEARS TO BE THAT HIS BROTHER-IN-LAW MR. CHANDWANI IS OWNER OF THIS CASH SEIZED. AND THAT THE SAME SHOULD BE ASSESSED IN MR. CHANDWANIS HANDS. HE APPEARS TO HAVE TAKEN THIS PLEA ON THE DAY OF SEARC H ITSELF BEFORE THE CBI AUTHORITIES. MR. CHANDWANI FILED ANTICIPAT ORY BAIL PETITION BEFORE THE HONBLE JURISDICTIONAL HIGH COU RT TAKING THE SAME PLEA. THEIR LORDSHIPS GRANTED HIM THIS RELIEF WITHOUT GIVING ANY CONCLUSIVE FINDING REGARDING THIS CASH OWNERSHI P. MR. CHANDWANI THEREAFTER WROTE A LETTER TO THE CBI AUTH ORITIES ON 23.09.1988 CLAIMING HIMSELF TO BE OWNER OF THE CASH AMOUNT IN QUESTION. HE WROTE A SIMILAR LETTER ON 24.03.1989 TO HONBLE FINANCE MINISTER IN THE SAME TUNE. IT HAS COME ON RECORD THAT THIS PERSON FILED REVISED RETURNS OF INCOME POST CB I SEARCH ON 14.09.1988 STATING THE RESPECTIVE INCOMES IN THE PR ECEDING PARAS. THE ASSESSEES RETURN FILED IN IMPUGNED ASS ESSMENT YEAR STATED INCOME OF ONLY RS.58,283/- WITHOUT INCLUDING THE CASH SEIZED OF RS.24,33,770/-. THE ASSESSING OFFICER SO UGHT HIS EXPLANATION QUA THIS ASPECT. ASSESSEE FILED HIS RE PLY ON 30.01.1992 AT PAGES 70 TO 71 OF THE PAPER BOOK STAT ING MR. CHANDWANI TO BE THE OWNER OF THE CASH SEIZED. HE T HEREAFTER SUBMITTED MR. CHANDWANIS PAN DETAILS ETC. WE REIT ERATE THAT ALL THIS HAPPENED IN THE FIRST ROUND OF LITIGATION. TH E SAME CULMINATED IN TRIBUNALS REMAND ORDER (SUPRA). 10. NOW WE COME TO THE SECOND ROUND. IT IS AN UNDI SPUTED FACT THAT MR. CHANDWANIS CLAIM IN SECTION 273A PROCEEDI NGS BEFORE INCOME TAX AUTHORITIES AS WELL AS IN PROTECTIVE ASS ESSMENT THAT HE OWNED THE CASH SUM IN QUESTION HAVE NOT BEEN ACC EPTED. IT ITA NO.41/AHD/2005 (SHRI K. H. BHAYA VS. ITO) A.Y. 1989-90 - 9 - TRANSPIRES FROM THE CASE FILE THAT HIS ASSESSING OF FICER HAS FRAMED A PROTECTIVE ASSESSMENT ONLY AFTER REJECTING HIS CL AIM OF HAVING OWNED THE MONEY IN QUESTION. THE ASSESSEE PLACES A VERY STRONG RELIANCE ON A RELEASE ORDER DATED 04.09.1999 PASSED BY THE LD. SPECIAL COURT INTER ALIA DIRECTING THE CASH AMOUNT TO BE RELEASED TO MR. CHANDWANI. HOWEVER, THE FACT ALSO REMAINED THAT THE SAME WERE NEVER RELEASED AFTER PASSING OF THIS ORDE R. WE ASKED THE LD. COUNSEL TO PRODUCE AN EARLIER ORDER DATED 2 9.04.1994 ON THE VERY ISSUE RELIED UPON SUBSEQUENTLY IN THE ABOV E STATED ORDER DATED 04.09.1999. THE SAME STANDS FILED. IT EMANA TES THEREFROM THAT LD. SPECIAL COURT IN PARA 3 CATEGORICALLY HELD THAT THERE IS NO CASE FOR RETURNING THE IMPUGNED CASH SUM OF RS.24,3 3,770/- TO MR. CHANDWANI BECAUSE IT WAS SEIZED FROM OFFICE AN D RESIDENCE OF MR. BHAYA HIMSELF . AND THAT MR. CHANDWANI HAD NOT BROUGHT ANY MATERIAL ON RECORD MAKING OUT A PRIMA FACIE CASE OF THIS RELEASE CLAIM. WE OBSERVE IN THESE PECULIAR FACTS AND CIRCU MSTANCES THAT THE LD. SPECIAL COURTS FORMER REASONED ORDER STILL HOLDS THE FIELD. MEANING THEREBY THAT THE ASSESSEE IS NOT ABLE TO RE BUT THE PRESUMPTION THAT THE IMPUGNED CASH SEIZED IN FACT B ELONGS TO MR.CHANDWANI. WE FURTHER REPEAT THE LOWER AUTHORITI ES FINDINGS THAT THIS GENTLEMAN HAS NEITHER PROVED SOURCE OF TH E MONEY IN QUESTION NOR THE FACT THAT HE HIMSELF HAD BROUGHT T HE SAME TO ASSESSEES OFFICE AND RESIDENTIAL PREMISES. IT IS A RIGHT PROPOSITION OF LAW THAT STRICT RULES OF EVIDENCE LA W DO NOT APPLY IN INCOME TAX PROCEEDINGS AS THE SAME FOLLOW PREPONDER ANCE OF PROBABILITY PRINCIPLE. WE HOLD IN VIEW OF THE FACT S AND CIRCUMSTANCES DISCUSSED HEREINABOVE THAT ASSESSEES ARGUMENTS SEEKING TO SHIFT OWNERSHIP OF MONEY SEIZED TO MR. C HANDWANIS ITA NO.41/AHD/2005 (SHRI K. H. BHAYA VS. ITO) A.Y. 1989-90 - 10 - HANDS IN WHOSE CASE THE SAME STANDS PROTECTIVELY AS SESSED DESERVE TO BE DECLINED. WE ORDER ACCORDINGLY. THE ASSESSEES OTHER ARGUMENTS (SUPRA) ARE REJECTED IN VIEW OF OUR DISCUSSION HEREINABOVE. 11. THIS ASSESSEES APPEAL IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE 29 TH DAY OF OCTOBER, 2015. SD/- SD/- (ANIL CHATURVEDI) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 29/10/2015 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )* + ,--. . /0 / DR, ITAT, AHMEDABAD 1 + 23 4 5 / GUARD FILE. BY ORDER / . // . /0