Sh. Narendra Kumar Dembla, UDAIPUR V. DCIT, UDAIPUR

ITA 423/JODH/2013

• Counselvise Citation: 42323314 RSA 2013
• Duration Of Justice: 1 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 08-07-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR DEEPAK SEHGAL
• Keywords: Gift; Revision of order; Principle of natural justice; Revised return; Reassessment proceedings
• Section: 153A; 234B; 139(5); 11

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENC H : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 422/JODH/2013 (A.Y. 2005-06) SHRI SANJAY KUMAR DEMBLA, VS. DCIT, 21-22, NEW MADHAV NAGAR, CENTRAL CIRCLE-2, UDAIPUR. UDAIPUR. (APPELLANT) (RESPONDENT) PAN NO. AFSPD6724K ITA NO. 423/JODH/2013 (A.Y. 2005-06) SHRI NARENDRA KUMAR DEMBLA, VS. DCIT, 21-22, NEW MADHAV NAGAR, CENTRAL CIRCLE-2, UDAIPUR. UDAIPUR. (APPELLANT) (RESPONDENT) PAN NO. ABSPD2307G ASSESSEE BY : SHRI AMIT KOTHARI DEPARTMENT BY : DR. DEEPAK SEHGAL- CIT-D.R. DATE OF HEARING : 26/08/2013. DATE OF PRONOUNCEMENT : 28/08/2013. O R D E R PER N.K.SAINI, A.M THESE APPEALS BY THE ASSESSEES ARE DIRECTED AGAINS T THE SEPARATE ORDERS OF LD. CIT(A) CENTRAL, JAIPUR DATED 06/05/20 13 IN THE CASE OF 2 SHRI SANJAY KUMAR DEMBLA VS. DCIT AND DATED 03/05/2 013 IN THE CASE OF SHRI NARENDRA KUMAR DEMBLA. SINCE ISSUES INVOLV ED IN THESE APPEALS ARE SIMILAR AND THE APPEALS WERE HEARD TOGETHER, TH ESE ARE BEING DECIDED BY THIS COMMON ORDER FOR THE SAKE OF CONVEN IENCE. FIRST WE WILL DEAL WITH ITA NO. 422/JODH/2013. IN THIS APPE AL, THE FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. THE LD. CIT(A) HAS ERRED IN UPHOLDING THE ORDER PASSED BY THE LD. AO WHICH WAS BAD IN LAW BAD ON FACTS AND CO NTRARY TO ALL CANNONS OF NATURAL JUSTICE. 2. THE VARIOUS ADDITIONS MADE IN THE IMPUGNED ORDE R AND AS SUSTAINED BY THE LD. CIT(A) ARE OUTSIDE THE SCOPE O F SECTION 153A. 3. THE LD. CIT(A) HAS ERRED IN SUSTAINING THE ACTI ON OF THE LD. AO IN NOT ACCEPTING THE REVISED RETURN FILED BY THE APPELLANT, WHICH IS BAD IN LAW AND BAD ON FACTS. 4. THE LD. CIT(A) HAS ERRED IN SUSTAINING THE GIFT OF RS. 2,00,000/- RECEIVED BY THE APPELLANT DURING THE YEA R UNDER CONSIDERATION. THE ADDITION SO SUSTAINED IS BAD IN LAW AND BAD ON FACTS. 5. THE LD. CIT(A) HAS FURTHER ERRED IN SUSTAINING T HE ADDITION OF RS.2,50,000/- ON ACCOUNT OF GIFT RECEIVED FROM C HANDARI R KAMRA. THE ADDITION SO SUSTAINED IS BAD IN LAW AN D BAD ON FACTS. 6. THE APPROVAL GRANTED BY THE LD. ADDITIONAL CIT IS BAD IN LAW AND BAD ON FACTS, AND IS ALSO CONTRARY TO THE PRINC IPLES OF NATURAL JUSTICE. 7. THE INTEREST CHARGED U/S 234B IS BAD IN LAW AND BAD ON FACTS. 8 . THE APPELLANT PRAY FOR SUITABLE COSTS. 9. THE APPELLANT CRAVES LIBERTY TO ADD, AMEND, ALTE R AND MODIFY ANY OF THE GROUND OF APPEAL ON OR BEFORE ITS HEARING BEFORE YOUR HONOUR. 3 2. THE GROUNDS NO.1 & 6 WERE NOT PRESSED, SO THESE AR E DISMISSED AS NOT PRESSED. THE GROUNDS NO. 8 & 9 ARE GENERAL IN NATURE, SO DO NOT REQUIRE ANY COMMENT ON OUR PART. AS REGARDS GROUND S NO. 2 & 3, LEARNED COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET STATED THAT THESE ISSUES ARE COVERED BY THE EARLIER DECISION DATED 22 /07/2013 OF THIS BENCH OF THE TRIBUNAL IN ITA NO. 304 TO 308/JU/2013 FOR THE ASSESSMENT YEARS 2002-03 TO 2006-07 IN THE CASE OF SHRI VISHAL DEMBLA VS. DCIT, UDAIPUR AND THE ASSESSEE BELONGS TO THE SAME GROUP TO WHIC H SHRI VISHAL DEMBLA BELONGS (COPY OF THE SAID ORDER WAS F URNISHED IN THE ASSESSEES PAPER BOOK FILED ON 26/08/2013). 3. IN HIS RIVAL SUBMISSIONS, LD. D.R. ALTHOUGH, SUPPO RTED THE ORDERS OF THE AUTHORITIES BELOW, BUT COULD NOT CONTROVERT THE AFORESAID CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PAR TIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RE CORD. IT IS NOTICED THAT AN IDENTICAL ISSUE HAS ALREADY BEEN ADJUDICATE D IN THE CASE OF SHRI VISHAL DEMBLA VS. DCIT (SUPRA) AND THE RELEVANT FIN DINGS HAVE BEEN GIVEN AT PARA 2.6 TO 2.9 OF THE AFORESAID REFERRED TO ORDER DATED 22/07/2013, WHICH READ AS UNDER:- 2.6 GROUND NO. 3, COMMON IN ALL THE YEARS, SAYS THAT THE VARIOUS ADDITIONS MADE ARE NOT JUSTIFIED BEING OUTSIDE THE PURVIEW OF SECTION 4 153A OF THE ACT. THE FACTS OF THIS ISSUE ARE THAT THE ASSESSEE HAD ALREADY SUBMITTED RETURNS OF INCOME PRIOR TO THE DATE OF SEARCH. THE RETURNS WERE PROCESSED U/S 143(1) AND HAD ATTAINED FINALITY. AS PER THE ASSESSEE NO DOCUMENT WAS FOUND DURING THE COURSE OF SEARCH TO DRAW AN ADVERSE INFERENCE THEREFROM. ACCORDING TO THE ASSESSEE, ASSESSMENT U/S 153A HAS TO BE CONFINED TO MATERIALS FOUND DURING THE COURSE OF SEARCH AND ITEMS DISCLOSED IN THE ORIGINAL RETURN CANNOT BE DISTURBED. IN THIS REGARD, RELIANCE HAS BEEN PLACED ON THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF JAI STEELS [INDIA] VS. ACIT [2013] 259 CTR [RAJ] 281. COPY ENCLOSED AT PAGES 132 ONWARDS OF THE PAPER BOOK FILED IN THE APPEAL FOLDER PERTAINING TO A.Y. 2002-03. THE LD. A.R. HAS ALSO RELIED ON THE DECISION OF THE DELHI BENCH OF THE APPELLATE TRIBUNAL RENDERED IN THE CASE OF SHRI ANIL KUMAR BHATIA & OTHERS VS. ACIT IN ITA NO. 2660/DEL/09 ORDER DATED 1.1.2010. THUS IT HAS BEEN ARGUED THAT THE ASSESSEE HAD ALREADY DISCLOSED ALL THE GIFTS IN THE EARLIER A.YS. IN THE RESPECTIVE RETURNS OF INCOME FILED PRIOR TO THE DATE OF SEARCH WHICH HAVE BECOME FINAL. 2.7. PER CONTRA, THE LD. CIT[DR] HAS HEAVILY RELIED ON THE ORDERS OF THE AUTHORITIES BELOW AND HAS REITERATED THE REASONS GIVEN BY THEM FOR MAKING/SUSTAINING ADDITIONS. 2.8 IT WAS FOUND FOR A FACT THAT THE ASSESSEE HAD ALREADY SUBMITTED HIS RETURNS PRIOR TO SEARCH WHICH HAD ALSO ATTAINED FINALITY. IT IS ALSO A FACT THAT NO DOCUMENT OR INCRIMINATING EVIDENCE WAS FOUND DURING THE COURSE OF SEARCH WHICH COULD BE LEGALLY MADE A BASIS FOR DISTURBING THE ALREADY SETTLED ISSUES. THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT [SUPRA] ORDAINS AS UNDER: 5 SEC. 153A CANNOT BE READ IN ISOLATION, IN AS MUCH AS, THE SAME IS TRIGGERED ONLY ON ACCOUNT OF ANY SEARCH/REQUISITION UNDER S. 132 OR 132A. IF ANY BOOKS OF ACCOUNTS OR OTHER DOCUMENTS RELEVANT TO THE ASSESSMENT HAD NOT BEEN PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT AND FOUND IN THE COURSE OF SEARCH, SUCH BOOKS OF ACCOUNTS OR OTHER DOCUMENTS HAVE TO BE TAKEN INTO CONSIDERATION WHILE ASSESSING OR REASSESSING THE TOTAL INCOME UNDER THE PROVISIONS OF SEC. 153A. EVEN IN A CASE WHERE UNDISCLOSED INCOME OR UNDISCLOSED PROPERTY HAS BEEN FOUND AS A CONSEQUENCE OF THE SEARCH, THE SAME WOULD ALSO BE TAKEN INTO CONSIDERATION. THE REQUIREMENT OF ASSESSMENT OR REASSESSMENT UNDER THE SAID SECTION HAS TO BE READ IN THE CONTEXT OF S. 132 OR S. 132A, IN AS MUCH AS IN CASE NOTHING INCRIMINATING IS FOUND ON ACCOUNT OF SUCH SEARCH OR REQUISITION, THEN THE QUESTION OF REASSESSMENT OF THE CONCLUDED ASSESSMENTS DOES NOT ARISE, WHICH WOULD REQUIRE MORE REITERATION AND IT IS ONLY IN THE CONTEXT OF THE ABATED ASSESSMENT UNDER SECOND PROVISO WHICH IS REQUIRED TO BE ASSESSED. THE UNDERLYING PURPOSE OF MAKING ASSESSMENT OF TOTAL INCOME UNDER SEC. 153A IS, THEREFORE, TO ASSESS INCOME WHICH WAS NOT DISCLOSED OR WOULD NOT HAVE BEEN DISCLOSED. THE PURPOSE OF SECOND PROVISO IS ALSO VERY CLEAR, IN AS MUCH AS ONCE AN ASSESSMENT OR REASSESSMENT IS PENDING' ON THE DATE OF INITIATION OF SEARCH OR REQUISITION AND IN TERMS OF S. 153A, A RETURN IS FILED AND THE AO IS REQUIRED TO ASSESS THE SAME, THERE CANNOT BE TWO ASSESSMENT ORDERS DETERMINING THE TOTAL INCOME OF THE ASSESSEE FOR THE SAID ASSESSMENT YEAR AND, THEREFORE, THE PROVISO PROVIDES FOR ABATEMENT OF SUCH PENDING ASSESSMENT AND REASSESSMENT PROCEEDINGS AND IT IS ONLY THE ASSESSMENT MADE UNDER S. 153A WOULD BE THE ASSESSMENT FOR THE SAID YEAR. THE NECESSARY COROLLARY OF THE SECOND PROVISO IS THAT THE ASSESSMENT OR REASSESSMENT PROCEEDINGS, WHICH HAVE ALREADY BEEN 'COMPLETED' AND ASSESSMENT ORDERS HAVE 6 BEEN PASSED DETERMINING THE ASSESSEE'S TOTAL INCOME AND, SUCH ORDERS ARE SUBSISTING AT THE TIME WHEN THE SEARCH OR THE REQUISITION IS MADE, THERE IS NO QUESTION OF ANY ABATEMENT SINCE NO PROCEEDINGS ARE PENDING. THE ARGUMENT RAISED BY THE COUNSEL FOR THE ASSESSEE TO THE EFFECT THAT ONCE A NOTICE UNDER S. 153A IS ISSUED, THE ASSESSMENTS FOR SIX YEARS ARE AT LARGE BOTH FOR THE AO AND ASSESSEE HAS NO WARRANT IN LAW. FROM A PLAIN READING OF THE PROVISION ALONG WITH THE PURPOSE AND PURPORT OF THE SAID PROVISION, WHICH IS INTRICATELY LINKED WITH SEARCH AND REQUISITION UNDER SS. 132 AND 132A, IT IS APPARENT THAT: (A) THE ASSESSMENTS OR REASSESSMENTS, WHICH STAND ABATED IN TERMS OF SECOND PROVISO TO S. 153A, THE AO ACTS UNDER HIS ORIGINAL JURISDICTION, FOR WHICH, ASSESSMENTS HAVE TO BE MADE; (B) REGARDING OTHER CASES, THE ADDITION TO THE INCOME THAT HAS ALREADY BEEN ASSESSED, THE ASSESSMENT WILL BE MADE ON THE BASIS OF INCRIMINATING MATERIAL AND (C) IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMENT CAN BE MADE. THOUGH SUCH A CLAIM BY THE ASSESSEE FOR THE FIRST TIME UNDER S. 153A IS NOT CONTEMPLATED, THE CASE IN HAND HAS TO BE CONSIDERED AT BEST SIMILAR TO A CASE WHERE IN SPITE OF A SEARCH AND/OR REQUISITION, NOTHING INCRIMINATING IS FOUND. IN SUCH A CASE THOUGH S. 153'A WOULD BE TRIGGERED AND ASSESSMENT OR REASSESSMENT TO ASCERTAIN THE TOTAL INCOME OF THE PERSON IS REQUIRED TO BE DONE, HOWEVER, THE SAME WOULD IN THAT CASE NOT RESULT IN ANY ADDITION AND THE ASSESSMENTS PASSED EARLIER MAY HAVE TO BE REITERATED. THE ARGUMENT OF THE COUNSEL THAT THE AO IS ALSO FREE TO DISTURB INCOME, EXPENDITURE OR DEDUCTION DE HORS THE INCRIMINATING MATERIAL, WHILE MAKING ASSESSMENT UNDER S. 153A IS ALSO NOT BORNE OUT FROM THE SCHEME OF THE SAID PROVISION WHICH IS ESSENTIALLY IN CONTEXT OF SEARCH AND/OR REQUISITION. THE PROVISIONS OF SS. 153A TO 153C CANNOT BE INTERPRETED TO BE A FURTHER INNINGS FOR 7 THE AO AND/OR ASSESSEE BEYOND PROVISIONS OF SS. 139 (RETURN OF INCOME), 139(5) (REVISED RETURN OF INCOME), 147 (INCOME ESCAPING ASSESSMENT) AND 263 (REVISION OF ORDERS). THE PLEA RAISED ON BEHALF OF THE ASSESSEE THAT AS THE FIRST PROVISO PROVIDES FOR ASSESSMENT OR REASSESSMENT OF THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN THE SIX ASSESSMENT YEARS, IS MERELY READING THE SAID PROVISION IN ISOLATION AND NOT IN THE CONTEXT OF TH E ENTIRE SECTION. THE WORDS 'ASSESS' OR 'REASSESS' HA VE BEEN USED AT MORE THAN ONE PLACE IN THE SECTION AND A HARMONIOUS CONSTRUCTION OF THE ENTIRE PROVISION WOULD LEAD TO AN IRRESISTIBLE CONCLUSION THAT THE WORD 'ASSESS' HAS BEEN USED IN THE CONTEXT OF ABATED PROCEEDINGS AND 'REASSESS' HAS BEEN USED FOR COMPLETED ASSESSMENT PROCEEDINGS, WHICH WOULD NOT ABATE AS THEY ARE NOT PENDING ON THE DATE OF INITIATION OF THE SEARCH OR MAKING OF REQUISITION AND WHICH WOULD ALSO NECESSARILY SUPPORT THE INTERPRETATION THAT FOR THE COMPLETED ASSESSMENTS, THE SAME CAN BE TINKERED ONLY BASED ON THE INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS. THE ARGUMENT OF THE COUNSEL FOR THE ASSESSEE IF TAKEN TO THE LOGICAL END WOULD MEAN THAT EVEN IN CASES WHERE THE APPEAL ARISING OUT OF THE COMPLETED ASSESSMENT HAS BEEN DECIDED BY THE CIT(A) OR TRIBUNAL AND THE HIGH COURT, ON A NOTICE ISSUED UNDER S. 153A, THE AO WOULD HAVE POWER TO UNDO WHAT HAS BEEN CONCLUDED BY THE HIGH COURT. ANY INTERPRETATION WHICH LEADS TO SUCH CONCLUSION HAS TO BE REPELLED AND/OR AVOIDED. CONSEQUENTLY, IT IS HELD THAT IT IS NOT OPEN FOR THE ASSESSEE TO SEEK DEDUCTION OR CLAIM EXPENDITURE WHICH HAS NOT BEEN CLAIMED IN THE ORIGINAL ASSESSMENT, WHICH ASSESSMENT ALREADY STANDS COMPLETED, ONLY BECAUSE AN ASSESSMENT UNDER S. 153A IN PURSUANCE OF SEARCH OR REQUISITION IS REQUIRED TO BE MADE. SUNCITY ALLOYS (P) LTD. VS. ASSTT. CIT (2009) 124 TTJ (JD) 674 : (2009) 27 DTR (JD) 139 AFFIRMED; CIT VS. SMT. SHAILA AGARWAL (2012) 246 CTR (ALL) 266 : (2012) 65 DTR (ALL) 41 : (2012) 346 ITR 130 8 (ALL) RELIED ON K.P. VARGHESE VS. ITO [1981] 24 CTR [SC] 358: [1981] 131 ITR 597 [SC] APPLIED. CONCLUSION: IN AN ASSESSMENT U/S 153A, IT IS NOT OPEN TO THE ASSESSEE TO SEEK DEDUCTION OR CLAIM RELIEF NOT CLAIMED BY IT IN THE ORIGINAL ASSESSMENT WHICH ALREADY STANDS COMPLETED BEFORE THE DATE OF INITIATION OF THE SEARCH OR MAKING OF REQUISITION. 2.9 THEREFORE, BY RESPECTFULLY FOLLOWING THE ABOVE JUDGMENT, WE ALLOW GROUND NO. 2, IN ALL THE YEARS, IN FAVOUR OF THE ASSESSEE. THE GIFTS ALREADY DISCLOSED BY THE ASSESSEE IN THE RETURNS OF INCOME, WHICH HAVE ATTAINED FINALITY, CANNOT BE DISTURBED. ACCORDINGLY, CONSEQUENTIAL ADDITIONS ARE DELETED. SO, RESPECTFULLY FOLLOWING THE AFORESAID REFERRED T O ORDER DATED 22/07/2013 IN THE CASE OF SHRI VISHAL DEMBLA VS. DCIT , GROUNDS NO. 2 & 3 ARE ALLOWED. 5 . VIDE GROUND NO.4, THE GRIEVANCE OF THE ASSESSEE R ELATES TO THE SUSTENANCE OF ADDITION OF RS. 2,00,000/- ON ACCOUNT OF GIFT RECEIVED BY THE ASSESSEE. AS REGARDS TO THIS ISSUE, LD. COUNS EL FOR THE ASSESSEE SUBMITTED THAT THE IMPUGNED AMOUNT WAS SURRENDERED BY THE ASSESSEE IN THE REVISED RETURN AND THIS ISSUE ALSO STANDS CO VERED VIDE ORDER DATED 12/12/2012 IN THE CASE OF SMT. RAVITA DEMBLA VS. DCIT, UDAIPUR IN ITA NO. 324 TO 326/JU/2011 FOR THE ASSESSMENT YEARS 2002-03 TO 2005-06 (COPY OF THE SAID IS PLACED AT PAGES NO. 12 1 TO 129 OF THE ASSESSEES PAPER BOOK). LEARNED D.R. ALTHOUGH SUPP ORTED THE ORDER OF 9 THE AUTHORITIES BELOW, BUT COULD NOT CONTROVERT THE AFORESAID CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE. 6 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PA RTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RE CORD. IT IS NOTICED THAT THIS ISSUE STANDS COVERED BY THE AFORESAID REF ERRED TO ORDER DATED 12/12/2012 IN THE CASE OF SMT. RAVITA DEMBLA VS. DC IT WHEREIN RELEVANT FINDING HAS BEEN GIVEN IN PARA NO. 6, WHIC H IS REPRODUCED AS UNDER:- 6. WITH THE ABOVE OBSERVATION, WE RESTORE ALL THESE APPEALS TO THE FILE OF THE AO WITH THE DIRECT ION TO CONSIDER THE REVISED RETURNS FILED BY THESE APPELLA NTS AND THEREAFTER FRAME THEIR ASSESSMENTS IN THE LIGHT OF OUR ABOVE AFOREMENTIONED OBSERVATIONS. ACCORDINGLY, AL L THE APPEALS OF BOTH THE ASSESSEES ARE ALLOWED FOR STATI STICAL PURPOSES. SINCE, THE FACTS OF THE PRESENT CASE ARE SIMILAR T O THE FACTS INVOLVED IN THE CASE OF SMT. RAVITA DEMBLA VS. DCIT (SUPRA), THEREFORE, THIS ISSUE IS RESTORED TO THE FILE OF AO TO BE DECI DED AS PER THE DIRECTION AND OBSERVATION GIVEN IN ITA NO. 324 TO 3 26/JU/2011 IN THE CASE OF SMT. RAVITA DEMBLA VS. DCIT (SUPRA). 7 . NEXT ISSUE VIDE GROUND NO.5 RELATES TO THE SUSTEN ANCE OF ADDITION OF RS. 2,50,000/- ON ACCOUNT OF GIFT RECEIVED BY TH E ASSESSEE FROM SHRI CHANDAN R KAMRA. 10 8 . FACTS RELATED TO THIS ISSUE IN BRIEF ARE THAT, AO DURING THE ASSESSMENT PROCEEDINGS, NOTICED THAT THE ASSESSEE H AD RECEIVED A GIFT OF RS. 2,50,000/-, WHICH WAS CREDITED IN HIS CAPITA L ACCOUNT. AO ASKED THE ASSESSEE TO SUBMIT EVIDENCE IN SUPPORT OF IDENT ITY AND CREDITWORTHINESS OF THE DONAR ALONG WITH EVIDENCE T O ESTABLISH GENUINENESS OF THE GIFT TRANSACTIONS. THE ASSESSEE SUBMITTED THAT HE RECEIVED THE GIFT FROM HIS COUSIN BROTHER-SHRI CHAN DAN R KAMRA OF DUBAI ON 24/08/2004 THROUGH A DEMAND DRAFT OF DUBAI . THE ASSESSEE ALSO FILED AFFIDAVIT OF THE DONAR, WHO WAS DOING BU SINESS FOR MORE THAN 15 YEARS IN DUBAI AND ALSO FILED COPY OF PASSPORT. AO WAS NOT SATISFIED AS THE DONAR WAS NOT AVAILABLE FOR EXAMINATION AND HELD THAT THE ASSESSEE FAILED TO PROVE THE CREDITWORTHINESS OF TH E DONAR AND TO ESTABLISH THE GENUINENESS OF THE GIFT TRANSACTIONS. ACCORDINGLY, THE IMPUGNED AMOUNT WAS ADDED TO THE INCOME OF THE ASSE SSEE CONSIDERING THE SAME AS UNDISCLOSED INCOME. THE ASSESSEE CARRI ED THE MATTER TO THE LD. CIT(A) WHO CONFIRMED THE ACTION OF THE AO B Y OBSERVING THAT EVEN AFTER SUCH TRANSACTION WAS THROUGH BANKING CHA NNELS, GENUINENESS WAS NOT PROVED INASMUCH AS THERE WAS NO SPECIFIC OC CASION FOR MAKING SUCH GIFT OF RS. 2,50,000/- BY THE DONAR. NOW, THE ASSESSEE IS IN APPEAL. 9 . LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT T HE GIFT WAS DISCLOSED IN THE ORIGINAL RETURN OF INCOME FILED BY THE ASSESSEE UNDER 11 SECTION 139(1) OF THE ACT AND NO SUCH ADDITION WAS MADE IN THE ORIGINAL ASSESSMENT. THEREFORE, THE ADDITION MADE ON THE BA SIS OF RETURN OF INCOME FILED UNDER SECTION 153-A OF THE ACT WAS NOT JUSTIFIED. IN HIS REIVAL SUBMISSIONS, LEARNED D.R. SUPPORTED THE ORDE R OF THE AUTHORITIES BELOW. 10 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN THE P RESENT CASE, THE CLAIM OF THE ASSESSEE IS THAT THIS GIFT WAS ACCEPTE D IN THE ORIGINAL RETURN OF INCOME FILED UNDER SECTION 139 (1) OF THE ACT, WHICH WAS FILED BEFORE THE SEARCH TOOK PLACE. WE, THEREFORE, DEEM IT PROPER TO REMAND THIS ISSUE BACK TO THE FILE OF AO TO BE DECI DED AFTER MAKING PROPER VERIFICATION FROM THE RECORD AND IF IT IS FO UND THAT THIS GIFT WAS DISCLOSED PRIOR TO SEARCH AND WAS ACCEPTED BY THE D EPARTMENT IN THE ORIGINAL RETURN OF INCOME, THEN NO ADDITION WAS CAL LED FOR ON THE BASIS OF RETURN FILED UNDER SECTION 153-A OF THE ACT. 11 . THE LAST ISSUE VIDE GROUND NO.7 RELATES TO THE CH ARGING OF THE INTEREST UNDER SECTION 234-B OF THE ACT. AS REGARD S TO THIS ISSUE, IT IS A COMMON CONTENTION OF BOTH THE PARTIES THAT IT IS CO NSEQUENTIAL IN NATURE. WE ORDER ACCORDINGLY. 12 . AS REGARDS TO ITA NO. 423/JODH/2013 IN THE CASE OF SHRI NARENDRA KUMAR DEMBLA VS. DCIT , IT WAS THE COMMON CONTENTION OF 12 BOTH THE PARTIES THAT THE ISSUES RAISED IN THIS APP EAL ARE SIMILAR TO THE ISSUES INVOLVED IN THE CASE OF SHRI SANJAY KUMAR DEMBAL IN ITA NO. 422/JODH/2013 AND THE FACTS ARE IDENTICAL. THEREFORE, OUR FINDIN GS GIVEN IN FORMER PART OF THIS ORDER WHILE DECIDING T HE APPEAL OF SHRI SANJAY KUMAR DEMBAL IN ITA NO. 422/JODH/2013 SHALL APPLY MUTATIS MUTANDIS IN THE CASE OF SHRI NARENDRA KUMAR DEMBLA IN ITA N O. 423/JODH/2013. 13. IN THE RESULT, BOTH THE APPEALS ARE PARTLY ALLOWED FOR STATISTICAL PURPOSE. (ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH AUG. 2013) (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 28 TH AUGUST, 2013. VR/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD.CIT 4. THE CIT(A) 5. THE D.R ASSISTANT REGISTRAR, ITAT, JODHPUR.