The ACIT, V. Shri Shantilal Deepchand Pitliya,

ITA 455/IND/2006

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 2411 (ITAT-INDORE)
• Duration Of Justice: 3 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2009
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 25-11-2009
• Assessment Year: misc
• Appeal Filed On: 21-06-2006
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: M MANI; A L JAIN S
• Assessee Lawyers: APARNA KARAN
• Keywords: Assessment record; Onus to prove; Revised return; Reassessment proceedings
• Section: 142(1); 133A; 131; 68; 148

Judgement Text

PAGE 1 OF 17 - I.T.A.NOS. 489 TO 492 /IND/2006 & 455/IND/2006 SHANTILAL DEEPCHAND PITLIA, TAL, THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH : INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI V.K. GUPTA, ACCOUNTANT MEMBER PAN NO. : ALGPP8336-B I.T.A.NO.489 TO 492/IND/2006 A.YS. : 1998-99 TO 2000-01 & 2002-03 SHANTILAL DEEPCHAND PITLIYA, ACIT, C/O AMRITLAL H.JAIN, C.A. VS RATLAM 2, DHANWANTARI MARG, INDIRA PRIYADARSHINI SQUARE, FREEGANJ, UJJAIN APPELLANT RESPONDENT I.T.A.NO.455/IND/2006 A.YS. : 2002-03 ACIT, SHANTILAL DEEPCHAND PITLIYA, RATLAM VS C/O AMRITLAL H.JAIN, C.A. 2, DHANWANTARI MARG, APPELLANT INDIRA PRIYADARSHINI SQUARE, FREEGANJ, UJJAIN RESPONDENT ASSESSEE BY : S/SHRI M.MANI & SHRI A.L.JAIN, ADVOCATES RESPONDENT BY : SMT.APARNA KARAN, SR. DR DATE OF HEARING : 25/11/2009 PAGE 2 OF 17 - I.T.A.NOS. 489 TO 492 /IND/2006 & 455/IND/2006 SHANTILAL DEEPCHAND PITLIA, TAL, O R D E R PER V.K. GUPTA, A.M. THESE APPEALS BELONG TO THE SAME ASSESSEE AND INVOL VE COMMON ISSUES, HENCE, THESE WERE HEARD TOGETHER AND THESE ARE BEING DISPOSED OF THROUGH THIS CONSOLIDATED ORDER FOR THE SAKE OF CON VENIENCE. 2. FIRST, WE SHALL TAKE UP ASSESSEES APPEALS IN I.T.A .NOS. 489, 490 & 491/IND/2006, WHEREIN COMMON GROUNDS RELATING TO VALIDITY OF REASSESSMENT PROCEEDINGS, HAVE BEEN RAISED BY THE A SSESSEE. 3. THE FACTS, IN BRIEF, ARE THAT THERE WAS A SURVEY I N THE CASE OF THE ASSESSEE IN ASSESSMENT YEAR 2002-03, WHEREIN CERTAI N DIARY WERE SEIZED, WHICH INDICATED INVOLVEMENT OF THE ASSESSEE IN PAWN ING BUSINESS, THE INCOME FROM WHICH HAD NOT BEEN DISCLOSED. THE ASSES SEE HAD ALSO SURRENDERED CERTAIN INCOME IN THAT YEAR. ON THE BAS IS OF SUCH MATERIAL, THE A.O. REOPENED THE ASSESSMENT FOR THESE YEARS BY ISS UING NOTICE U/S 148 ON 29.011.2003 FOR ALL THESE THREE YEARS. THE A.O. ALS O MADE VARIOUS ADDITIONS IN THE COURSE OF SUCH REASSESSMENT PROCEE DINGS. AGGRIEVED BY THIS, THE ASSESSEE CARRIED THE MATTER INTO APPEAL B EFORE THE LD. CIT(A), WHEREIN THE ASSESSEE CHALLENGED THE VALIDITY OF REA SSESSMENT PROCEEDINGS ON THE GROUND THAT THE SAME WAS WITHOUT ANY PROPER REASONS FOR ESCAPEMENT OF INCOME. THE LD. CIT(A), HOWEVER, HELD THAT REASONS FOR PAGE 3 OF 17 - I.T.A.NOS. 489 TO 492 /IND/2006 & 455/IND/2006 SHANTILAL DEEPCHAND PITLIA, TAL, SUCH REOPENING HAD BEEN COMMUNICATED TO THE ASSESSE E VIDE LETTER DATED 20.1.2003, WHEREIN IT HAS BEEN POINTED OUT THAT THE ENTRIES FOUND IN THE DIARY IN THE COURSE OF SURVEY HAD NOT BEEN CONSIDER ED IN COMPUTING THE INCOME PERTAINING TO SUCH YEARS. THE LD. CIT(A) ALS O HELD THAT THE ASSESSEE HAD HIMSELF WORKED OUT THE PEAK INVESTMENT ON THE BASIS OF SUCH DIARIES AND EVEN THE AMOUNT OF INTEREST EARNED ON S UCH MONEY LENDING BUSINESS FROM YEAR TO YEAR BASIS. HENCE, THERE WAS NO MERIT IN THE CONTENTIONS OF THE ASSESSEE CHALLENGING THE VALIDIT Y OF INITIATION OF REASSESSMENT PROCEEDINGS, AND THAT TOO IN A VERY BR IEF MANNER. AGGRIEVED BY THIS, THE ASSESSEE IS IN APPEAL BEFORE US. 4. THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED THAT ABOUT A MONTH BACK, COPY OF THE ORDER SHEET CONNECTED WITH THE REASSESSMENT PROCEEDINGS HAD BEEN OBTAINED FROM THE DEPARTMENT A ND A TYPED COPY THEREOF HAD BEEN CLOSED AT PAGE 116 & 117 OF THE PA PER BOOK, WHICH CLEARLY INDICATED THAT ORIGINALLY REASONS FOR REOPE NING OF SUCH ASSESSMENTS WERE RECORDED ON 14.5.2001 AND, THEREAF TER, A NOTICE U/S 142(1) WAS ISSUED ON 19.07.2002 AFTER ISSUING NOTIC E U/S 148 ON 14.5.2001. ON 28.01.2003, THE ASSESSEE OBJECTED THA T NOTICE U/S 148 HAD NOT BEEN ISSUED. THE LEARNED COUNSEL DREW OUR ATTEN TION TO RELEVANT ENTRIES IN THE SAID ORDER SHEET. THEREAFTER, HE DRE W OUR ATTENTION TO THE NOTING MADE BY THE ASSESSING OFFICER ON 29.01.2003, WHEREBY HE HAD PAGE 4 OF 17 - I.T.A.NOS. 489 TO 492 /IND/2006 & 455/IND/2006 SHANTILAL DEEPCHAND PITLIA, TAL, DROPPED THE PROCEEDINGS OF REASSESSMENT INITIATED B Y ISSUING NOTICE U/S 148 ON 14.5.2001 FOR THE REASON THAT THERE WAS NO E VIDENCE OF SERVICE OF SUCH NOTICE ON RECORD. THEREAFTER, ON THE SAME DATE , THE A.O. AGAIN ISSUED NOTICE U/S 148. THE LEARNED COUNSEL, AFTER DRAWING OUR ATTENTION TO THESE NOTING CONTENDED THAT ONCE THE PROCEEDINGS U/S 148 HAD BEEN DROPPED/CANCELLED, THEN, IT WAS INCUMBENT UPON THE ASSESSEE TO RECORD THE REASONS AGAIN FOR REOPENING THE CASE ON 29.1.2003 A ND IN THE ABSENCE OF SUCH REASONS, THE PROCEEDINGS SO INITIATED WERE VOI D IN LAW AS THE REQUIREMENTS OF PROVISIONS OF SECTION 148(2) WERE N OT COMPLIED WITH. HE FURTHER CONTENDED THAT SECOND REOPENING COULD BE DO NE ONLY ON THE BASIS OF SOME NEW MATERIAL AND FOR THIS REASON ALSO SUCH SECOND REOPENING WAS BAD IN LAW. 5. THE LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHER H AND, CONTENDED THAT THE COPY OF THESE ASSESSMENT RECORDS WERE NOT WITH HER. HENCE, ASSESSMENT RECORDS COULD BE REQUIRED. AT THI S STAGE, A SPECIFIC QUERY WAS RAISED REGARDING THE CORRECTNESS OF COPY OF SUCH ORDER SHEET. THE LEARNED COUNSEL FOR THE ASSESSEE GAVE A STATEME NT AT BAR TO THE EFFECT THAT THIS WAS A TYPED COPY OF THE ORDER SHEET SUPPL IED TO HIM BY THE DEPARTMENT ABOUT A MONTH BACK FROM THE DATE OF HEAR ING AND NO ADDITION/ALTERATIONS OR MODIFICATIONS HAVE BEEN DON E THEREIN. THEREAFTER, THE LD. DEPARTMENTAL REPRESENTATIVE CONTENDED THAT WHY THIS PARTICULAR PAGE 5 OF 17 - I.T.A.NOS. 489 TO 492 /IND/2006 & 455/IND/2006 SHANTILAL DEEPCHAND PITLIA, TAL, ASPECT WAS NOT RAISED BEFORE THE LD. CIT(A) OR A.O. , THE LEARNED COUNSEL REQUIRED THAT IN THE ASSESSMENT ORDER THE A.O. HAD NOT GIVEN ANY FACTUAL DETAILS REGARDING PROCEEDINGS, WHICH TOOK PLACE FRO M 14.5.2001 TO 29.01.2003 AND THESE PAPERS WERE NOT AVAILABLE WITH THE ASSESSEE, WHEN THE APPEAL BEFORE THE LD. CIT(A) WAS DISPOSED OF. H ENCE, THE SAME COULD NOT BE ARGUED. THE LEARNED COUNSEL FURTHER CONTENDE D THAT, IN ANY CASE, IT WAS A LEGAL ISSUE, WHICH COULD BE TAKEN UP FOR THE FIRST TIME BEFORE THE TRIBUNAL ALSO. THE LD. DEPARTMENTAL REPRESENTATIVE, THEREAFTER, PLACED STRONG RELIANCE ON THE ORDER OF THE LD. CIT(A). 6. WE HAVE CONSIDERED THE SUBMISSIONS MADE BY BOTH THE SIDES, MATERIAL ON RECORD AND THE ORDERS OF THE AUTHORITIE S BELOW. 7. IT IS NOTED THAT AS A CONSEQUENCE OF SEARCH, CERTAI N INCRIMINATING MATERIAL HAS BEEN FOUND, WHICH RELATE TO REOPENING OF THE ASSESSMENT FOR THESE YEARS. AS EVIDENCE FROM THE COPY OF THE ORDER SHEET PLACED ON RECORD, FIRST NOTICE U/S 148 WAS ISSUED ON 14.5.200 1 FOR THE REASON THAT THE A.O. WANTED TO VERIFY CERTAIN TRANSACTIONS AND INCO ME FROM PAWNING BUSINESS HAD ESCAPED ASSESSMENT. ON 28.01.2003, THE ASSESSEE HAD SUBMITTED THAT NOTICE U/S 148 HAD NOT BEEN SERVED A ND THE A.O. HAS DROPPED THESE REASSESSMENT PROCEEDINGS SO INITIATED FOR THE REASON THAT THERE WAS NO EVIDENCE ON RECORD REGARDING SERVICES OF NOTICE ISSUED U/S 148 ON 14.5.2001. IT IS FURTHER NOTED THAT ON 29.1. 2003 ITSELF, THE A.O. HAS PAGE 6 OF 17 - I.T.A.NOS. 489 TO 492 /IND/2006 & 455/IND/2006 SHANTILAL DEEPCHAND PITLIA, TAL, ISSUED FRESH NOTICE U/S 148 WITHOUT RECORDING ANY R EASON FOR FORMING BELIEF THAT SOME INCOME HAD ESCAPED ASSESSMENT, WHI CH IS A PREREQUISITE CONDITION, THE NON-OBSERVANCE OF WHICH MAY FATAL. T HUS, IN VIEW OF THESE FACTS AND SETTLED JUDICIAL POSITION FOR NECESSITY O F RECORDING OF REASONS AT THE TIME OF REOPENING OF A CONCLUDED ASSESSMENT, WE QUASH THE ASSESSMENT PROCEEDINGS FOR ALL THESE THREE YEARS UN DER CONSIDERATION. BEFORE PARTING, WE MAY ADD THAT WE DO NOT SUBSCRIBE TO THE VIEWS OF THE ASSESSEE THAT THERE SHOULD HAVE BEEN SOME NEW MATER IAL ALSO AT THE TIME OF SUCH SECOND REOPENING, BECAUSE THE EARLIER REOPE NING PROCEEDINGS IN THE PRESENT CASE HAVE BEEN QUASHED MERELY FOR NON-S ERVICE OF NOTICE U/S 148 AT THE TIME AND NOT FOR NON-EXISTENCE OF ANY MA TERIAL. WE FURTHER HOLD THAT IN VIEW OF OUR DECISION ON THIS LEGAL GROUND O NLY, THERE IS NO NEED TO EXPRESS ANY OPINION ON THE ISSUES CONTESTED BY THE ASSESSEE ON MERITS. THUS, GROUND NO.1 OF THE ASSESSEE IN ALL THESE THRE E YEARS IS ACCEPTED. 8. IN THE RESULT, ALL THESE APPEALS FILED BY THE ASSES SEE STAND PARTLY ALLOWED IN TERMS INDICATED ABOVE. 9. NOW, WE SHALL TAKE UP ASSESSEES APPEAL IN I.T.A.NO . 492/IND/2006 FOR ASSESSMENT YEAR 2002-03, WHEREIN T HE ASSESSEE HAS CHALLENGED THE VALIDITY OF THE ACTION OF THE LD. CI T(A) IN DETERMINING THE ASSESSEES INCOME AT RS. 8 LAKHS INSTEAD OF TOTAL I NCOME OFFERED BY THE PAGE 7 OF 17 - I.T.A.NOS. 489 TO 492 /IND/2006 & 455/IND/2006 SHANTILAL DEEPCHAND PITLIA, TAL, ASSESSEE IN THE REVISED RETURN SUBMITTED BY THE ASS ESSEE ON 6.12.2004, WHEREIN INCOME OF RS. 1 LAKH HAD ONLY BEEN RETURNED . 10. THE FACTS, IN BRIEF, ARE THAT THERE WAS A SURVEY AT THE BUSINESS PREMISES OF THE ASSESSEE. THEREAFTER, SUMMON U/S 13 1 WAS ISSUED AND IN THE COURSE OF STATEMENT BEING RECORDED U/S 131 AFTE R ONE MONTH FROM THE DATE OF SERVICE, THE ASSESSEE OFFERED AS UM OF RS. 15 LAKHS AS ADDITIONAL INCOME FOR INVESTMENTS MADE BY HIM IN VARIOUS PROPE RTIES/ASSETS AND OTHER DISCREPANCIES IN EARLIER YEARS. SUBSEQUENTLY, THE ASSESSEE RETRACTED THEREFROM AND DISCLOSED ONLY RS. 7 LAKHS AS ADDITIO NAL INCOME IN THE RETURN FILED AFTER SUCH SURVEY PROCEEDINGS. THEREAF TER, THE ASSESSEE FILED A BELATED RETURN I.E. BEYOND THE TIME PROVIDED U/S 13 9(5) OF THE ACT, WHEREIN ONLY AN ADDITIONAL INCOME OF RS. 1 LAKH HAD BEEN SURRENDERED. THE ASSESSEE HAD FILED SUCH RETURN MAINLY FOR THE R EASON THAT ENTIRE INCOME RECORDED IN THE DIARIES/DOCUMENTS FOUND IN S URVEY HAD BEEN ASSESSED IN EARLIER YEARS AND SURRENDER OF RS. 7 LA KHS WAS MADE BY THE ASSESSEE ONLY ON THE CONDITION THAT HIS EARLIER ASS ESSMENTS WOULD NOT BE REOPENED. THE LD. CIT(A), HOWEVER, DISCARDED THIS R ETURN AS IT WAS TIME BARRED, HENCE, NON-EST IN LAW. AGGRIEVED BY THIS, T HE ASSESSEE IS IN APPEAL BEFORE US. 11. THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED THAT ON THE ONE HAND, THE LD. CIT(A) IGNORED THIS RETURN AND, HOWEV ER, SIMULTANEOUSLY HE PAGE 8 OF 17 - I.T.A.NOS. 489 TO 492 /IND/2006 & 455/IND/2006 SHANTILAL DEEPCHAND PITLIA, TAL, ARRIVED AT THE INCOME FROM HIS RETAIL TRADE OF CLOT H PLUS INTEREST ON THE BASIS OF SUCH RETURN. HENCE, SUCH ACTION OF THE LD. CIT(A) WAS CONTRADICTORY. HE FURTHER CONTENDED THAT THE ADDITI ONAL INCOME OF RS. 7 LAKHS OFFERED BY THE ASSESSEE DID NOT PERTAIN ONLY TO ASSESSMENT YEAR 2002-03 AND IN ASSESSMENT YEAR 1998-99, 1999-2000, 2000-01 AND 2001- 02, SOME ADDITIONS HAVE BEEN MADE. THEREFORE, THIS AMOUNTED TO DOUBLE TAXATION OF SAME INCOME, HENCE, NOT CORRECT IN LAW. AT THIS STAGE, THE LEARNED COUNSELS CONTENTION WAS DRAWN TO THE STATE MENT DURING THE COURSE OF 131 PROCEEDINGS WHEREIN INCOME OF RS. 15 LAKHS HAD BEEN OFFERED INITIALLY AND THAT TOO FOR ASSESSMENT YEAR 2002-03 ONLY. THE LEARNED COUNSEL DREW OUR ATTENTION TO EARLIER PART OF THE ANSWER OF THE RELEVANT QUESTION TO SHOW THAT THE AMOUNT SO OFFERE D HAD BEEN IN CONNECTION WITH IRREGULARITY/DISCREPANCIES COMMITTE D BY THE ASSESSEE IN THE EARLIER YEARS. THEREAFTER, THE ASSESSEES CONTE NTION WAS DRAWN TO THE GROUNDS OF APPEAL RAISED IN ASSESSMENT YEARS 1998-9 9, 1999-2000 AND 2000-01, WHEREIN THE ADDITIONS AGITATED BY THE ASSE SSEE DID NOT APPEAR TO BE LINKED WITH SUCH BLANKET ADDITIONAL INCOME OFFER ED BY THE ASSESSEE. THE LEARNED COUNSEL, HOWEVER, CONTINUED TO REITERAT E THE SAME SUBMISSIONS. THE LD. DEPARTMENTAL REPRESENTATIVE, O N THE OTHER HAND, PLACED STRONG RELIANCE ON THE ORDER OF THE LD. CIT( A). PAGE 9 OF 17 - I.T.A.NOS. 489 TO 492 /IND/2006 & 455/IND/2006 SHANTILAL DEEPCHAND PITLIA, TAL, 12. WE HAVE CONSIDERED THE SUBMISSIONS MADE BY BOTH THE SIDES, MATERIAL ON RECORD AND THE ORDERS OF THE AUTHORITIE S BELOW. 13. IN OUR OPINION, THIS APPEAL HAS GOT NO BASIS IN VIE W OF OUR DECISION OF QUASHING ASSESSMENT ORDER FOR ASSESSMEN T YEARS 1998-99, 1999-2000 & 2000-01 HEREINBEFORE. EVEN OTHERWISE, T HE GROUNDS RAISED BY THE ASSESSEE, IN THOSE YEARS, HAVE GOT NO CONNEC TION WITH THE ADDITIONAL INCOME SO OFFERED BY THE ASSESSEE. THUS, HAVING REG ARD TO THESE FACTS AND CIRCUMSTANCES, WE DISMISS THIS GROUND OF THE ASSESS EE. 14. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STA NDS DISMISSED. 15. NOW, WE SHALL TAKE UP THE REVENUES APPEAL IN I.T.A .NO. 455/IND/2006. 16. IN GROUND NO.1, THE REVENUE HAS RAISED TWO ISSUES I .E. DELETION OF ADDITION OF RS. 6,58,490/-MADE BY THE ASSESSING OFFICER U/S 68 AND DELETION OF ADDITION OF RS. 5,66,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF DIFFERENCE IN TRIAL BALANCE. 17. THE FACTS, IN BRIEF, ARE THAT THE A.O. ON THE BASIS OF ENTRIES MADE IN THE DIARIES REQUIRED THE ASSESSEE TO FILE THE CO NFIRMATION OF THE DEPOSITORS TO ESTABLISH THE GENUINENESS, IDENTITY A ND CREDITWORTHINESS OF SUCH TRANSACTIONS, WHICH THE ASSESSEE FAILED, HENCE THE A.O. MADE THE IMPUGNED ADDITION. THEREAFTER, THE A.O. FOUND THAT NO BALANCE SHEET HAD BEEN FILED FOR ASSESSMENT YEAR 2002-03, THOUGH THE SAME HAD BEEN FILED PAGE 10 OF 17 - I.T.A.NOS. 489 TO 492 /IND/2006 & 455/IND/2006 SHANTILAL DEEPCHAND PITLIA, TAL, FOR ASSESSMENT YEARS 1998-99 TO 2001-02. THE A.O. T OTALLED THE BALANCE SHEET OF ALL THESE YEARS TOGETHERLY AND FOUND THAT THERE WAS A DIFFERENCE OF RS. 5,66,600/-, WHICH HE ADDED AS THE INCOME OF THE ASSESSEE FOR THE REASON THAT SUCH DIFFERENCE REMAINED UNRECONCILED I N THE ABSENCE OF REGULAR BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE . AGGRIEVED BY THIS, THE ASSESSEE CARRIED THE MATTER INTO APPEAL BEFORE THE LD. CIT(A), WHEREIN IT WAS CONTENDED THAT THE ASSESSEE WAS NOT MAINTAIN ING THE REGULAR BOOKS OF ACCOUNT AND THE TRANSACTIONS RECORDED IN THE DIA RIES PERTAINED TO GIVING OF MONEY TO THE DEBTORS AND RETURN THEREOF BY THEM. HENCE, THERE WERE ONLY DEBTORS IN THE DIARIES AND NOT CREDITORS. THE A.O. HAD ACCEPTED THE DEBIT ENTRIES, HENCE, HE OUGHT TO HAVE ACCEPTED CRE DIT ENTRIES ALSO. IT WAS ALSO CONTENDED THAT DIARIES COULD NOT BE EQUATED WI TH THE REGULAR BOOKS OF ACCOUNT, HENCE, THE PROVISIONS OF SECTION 68 COULD NOT BE APPLIED. IN REGARD TO OTHER ADDITION OF RS. 5,66,600/-, THE ASS ESSEE SUBMITTED THAT THERE WAS NO DIFFERENCE IN THE BALANCE SHEET SUBMIT TED BY THE ASSESSEE FOR RESPECTIVE YEARS. HOWEVER, THE A.O. TOTALLED THE DE BIT AND CREDIT SIDE OF THE BALANCE SHEET OF ALL THE YEARS, WHICH RESULTED INTO SUCH ADDITION. HENCE, THIS ADDITION WAS BASED ON COMPLETE MIS-CONC EPTION/IGNORANCE OF THE A.O. IT WAS FURTHER CONTENDED THAT, INFACT, IT WAS A CASE WHERE LIABILITIES EXCEEDED THE ASSETS, HENCE, NO ADDITION COULD BE MADE EVEN ON MERITS. THE LD. CIT(A) AFTER CONSIDERING THESE SUBM ISSIONS OF THE PAGE 11 OF 17 - I.T.A.NOS. 489 TO 492 /IND/2006 & 455/IND/2006 SHANTILAL DEEPCHAND PITLIA, TAL, ASSESSEE AND NOTING THAT THE A.O. HAD MADE SUCH HUG E ADDITION WITHOUT UNDERSTANDING AND APPRECIATING THE NATURE OF ROUGH/ INCOMPLETE RECORDS OF TRANSACTIONS KEPT IN AN IRREGULAR MANNER IN DIARIES , DELETED THE ADDITION. AGGRIEVED BY THIS, THE REVENUE IS IN APPEAL BEFORE US. 18. THE LD. DEPARTMENTAL REPRESENTATIVE NARRATED THE FA CTS, DREW OUR ATTENTION TO THE RELEVANT PARAGRAPHS OF THE ASS ESSMENT ORDER BESIDES PLACING RELIANCE THEREON. THE LEARNED COUNSEL FOR T HE ASSESSEE, ON THE OTHER HAND, PLACED STRONG RELIANCE ON THE ORDER OF THE LD. CIT(A). 19. WE HAVE CONSIDERED THE SUBMISSIONS MADE BY BOTH THE SIDES, MATERIAL ON RECORD AND THE ORDERS OF THE AUTHORITIE S BELOW. 20. IT IS NOTED THAT THE ADDITION ON ACCOUNT OF UNEXPLA INED CASH CREDIT HAS BEEN MADE BY THE ASSESSING OFFICER WITHO UT GIVING ANY PARTICULARS/DETAILS OF SUCH CASH CREDITS IN THE ASS ESSMENT ORDER, WHICH FACT BY ITSELF MAKES THE ADDITION UNTENABLE. SIMILARLY, THE ADDITION OF RS. 5,66,600/- AFTER AGGREGATING THE TOTAL OF BALANCE S HEET FILED FOR THREE DIFFERENT ASSESSMENT YEARS IS ALSO NOT TENABLE IN L AW, BECAUSE THIS IS NOT CORRECT APPROACH AS PER ACCOUNTING PRACTICE AS WELL AS FOR THE REASON THERE IS NO DIFFERENCE IN THE BALANCE SHEET OF EACH INDIV IDUAL ASSESSMENT YEARS. ACCORDINGLY, BOTH THESE GROUNDS OF THE REVENUE ARE DISMISSED. 21. IN GROUND NO.2, THE REVENUE IS AGGRIEVED BY THE DE CISION OF THE LD. CIT(A) IN RESTRICTING THE ADDITION OF RS. 2,80, 000/- MADE BY THE PAGE 12 OF 17 - I.T.A.NOS. 489 TO 492 /IND/2006 & 455/IND/2006 SHANTILAL DEEPCHAND PITLIA, TAL, ASSESSING OFFICER TO RS. 1 LAKH AS INCOME FROM BUSI NESS OF PAWNING/CLOTHS. 22. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE IS ENGAG ED IN RETAIL TRADE OF CLOTHS AND DISCLOSED INCOME FROM SUCH BUSINESS A T RS. 75,000/- ON ESTIMATION BASIS. THE A.O., IN VIEW OF THE IMPROPER MAINTENANCE OF THE BOOKS OF ACCOUNT ESTIMATED THE SAME AT RS. 1.50 LAK HS. THE A.O., THEREAFTER, ALSO ESTIMATED THE INCOME FROM PAWNING BUSINESS BY WAY OF INTEREST FROM PAWNING ACTIVITIES AT RS. 30,000/- AN D UNDISCLOSED INVESTMENT IN SUCH BUSINESS AT RS. 1 LAKHS. IN DOIN G SO, THE A.O. ALSO REJECTED THE CONTENTIONS OF THE ASSESSEE THAT IT WA S NOT HIS INDIVIDUAL BUSINESS, BUT OF THE HUF FOR THE REASON THAT NO DOC UMENTARY EVIDENCES WERE PRODUCED TO SUBSTANTIATE THE SAME AND WHATEVER WAS PRODUCED THAT WAS NOT SUFFICIENT TO ACCEPT THESE CONTENTIONS OF T HE ASSESSEE. AGGRIEVED BY THIS, THE ASSESSEE CARRIED THE MATTER INTO APPEA L BEFORE THE LD. CIT(A), WHEREIN THE ASSESSEE CONTENDED THAT IN THE COURSE O F SURVEY, INVESTMENT IN SUCH BUSINESS HAD BEEN ACCEPTED AT RS. 1 LAKH. HOWE VER, SINCE THE ADDITION HAD BEEN MADE IN ASSESSMENT YEAR 1998-99, 1999-2000 & 2000- 01, HENCE, AMOUNTED TO DOUBLE ADDITION. THE ASSESSE E ALSO PLEADED THAT THE ASSESSEE HAD OFFERED ESTIMATED INTEREST INCOME IN THE RETURN, HENCE, THERE WAS NO REASON TO FURTHER ESTIMATE THE SAME. A S REGARD THE INCOME FROM RETAIL BUSINESS OF CLOTH TRADING, THE ASSESSEE SUBMITTED THAT THERE WAS PAGE 13 OF 17 - I.T.A.NOS. 489 TO 492 /IND/2006 & 455/IND/2006 SHANTILAL DEEPCHAND PITLIA, TAL, NO BASIS TO ESTIMATE THE SAME AT RS. 1,50,000/-. TH E LD. CIT(A) HELD THAT THERE WAS NO BASIS FOR ESTIMATING INCOME FROM CLOTH TRADING AT RS. 1,50,000/- AND SINCE THE TURNOVER OF THE ASSESSEE W AS LESS THAN RS. 40 LAKHS, HENCE, THE INCOME THEREFROM HAD TO BE ARRIVE D AT AS PER THE PROVISIONS OF SECTION 44AF OF THE INCOME-TAX ACT, 1 961. THE LD. CIT(A), HOWEVER, TAKING CLUE FROM THE TIME BARRED R ETURN FILED BY THE ASSESSEE ESTIMATED THE SAME AT RS.1 LAKH. 23. AS REGARD OTHER ADDITIONS OF RS.1.30 LAKHS MADE BY THE ASSESSING OFFICER, THE LD. CIT(A) HELD THAT THERE W AS NO NEED TO MAKE ANY SEPARATE ADDITION FOR THE REASON THAT ADDITIONA L INCOME OF RS. 7 LAKHS OFFERED BY THE ASSESSEE TOOK CARE OF THESE ITEMS. A GGRIEVED BY THIS, THE REVENUE IS IN APPEAL BEFORE US. 24. THE LD. DR NARRATED THE FACTS AND PLACED RELIANCE O N THE ORDER OF THE AO. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OT HER HAND, PLACED STRONG RELIANCE ON THE ORDER OF THE LD. CIT(A). 25. WE HAVE CONSIDERED THE SUBMISSIONS MADE BY BOTH THE SIDES, MATERIAL ON RECORD AND THE ORDERS OF THE AUTHORITIE S BELOW. 26. WE FIND THAT THERE IS NO BASIS WITH THE A.O. TO EST IMATE THE INCOME OF RETAIL TRADE AT RS. 1.50 LAKHS, HENCE, WE ARE OF THE VIEW THAT THE LD. CIT(A) HAS RIGHTLY CALCULATED THE SAME AT RS. 1 LAKH. SIMILARLY, THE OTHER ADDITIONS ARE ALREADY COVERED BY THE ADDITIO NAL INCOME OF RS. 7 PAGE 14 OF 17 - I.T.A.NOS. 489 TO 492 /IND/2006 & 455/IND/2006 SHANTILAL DEEPCHAND PITLIA, TAL, LAKHS OFFERED BY THE ASSESSEE, WHICH HAS ALSO BEEN CONFIRMED BY THE CIT(A). THUS, GROUND NO.2 OF THE REVENUES APPEAL I S ALSO DISMISSED. 27. IN GROUND NO.3, THE REVENUE IS AGGRIEVED BY THE DEC ISION OF THE LD. CIT(A) IN RESTRICTING THE ADDITION OF RS. 15 LA KHS MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNDISCLOSED INVESTM ENT IN IMMOVABLE PROPERTIES TO RS. 7 LAKHS. 28. THE FACTS, IN BRIEF, ARE THAT THE A.O. BASED UPON T HE STATEMENT MADE BY THE ASSESSEE IN THE COURSE OF SURVEY PROCEE DINGS U/S 133A AND SUMMON ISSUED U/S 131, REQUIRED THE ASSESSEE TO EXP LAIN THAT WHY AMOUNT OF RS. 15 LAKHS, AGREED TO BE OFFERED BY THE ASSESS EE AS ADDITIONAL INCOME, WAS NOT OFFERED. THE ASSESSEE REPLIED THAT THE SAID DISCLOSURE WAS SUBJECT TO VERIFICATION ON FACTS AND INVESTMENT MADE BY OTH ER FAMILY MEMBERS IN PROPERTIES, AGRICULTURAL LAND ETC. THE ASSESSEE ALS O STATED THAT THE A.O. DID NOT RECORD THE COMPLETE FACTS IN THE STATEMENT EITH ER DUE TO MIS- CONCEPTION OR COMMUNICATION GAP. THE ASSESSEE ALSO STATED THAT SURRENDER WAS FURTHER SUBJECT TO NON-REOPENING OF EARLIER ASS ESSMENT AND NON- IMPOSITION OF ANY PENALTY. THE A.O., HOWEVER, REJEC TED ALL THESE CLAIMS OF THE ASSESSEE AND HELD THAT THE ASSESSEE WAS TRYING TO REDUCE THE QUANTUM OF THIS DISCLOSURE BY INVOLVING THE OTHER MEMBERS O F HIS FAMILY, WHO DID NOT MAINTAIN THE BALANCE SHEET/OTHER STATEMENT OF A FFAIRS. THE A.O. ALSO HELD THAT THE ASSESSEE HAD ADOPTED A NON-COOPERATIV E ATTITUDE TO MISGUIDE PAGE 15 OF 17 - I.T.A.NOS. 489 TO 492 /IND/2006 & 455/IND/2006 SHANTILAL DEEPCHAND PITLIA, TAL, THE DEPARTMENT, PARTICULARLY WHEN SUCH OTHER PERSON S WERE ADULT AND INDEPENDENT TAX PAYERS AND HAD NOT DISCLOSED THE IN VESTMENT IN THEIR INDIVIDUAL RETURNS. AGGRIEVED BY THIS, THE ASSESSEE CARRIED THE MATTER INTO APPEAL BEFORE THE LD. CIT(A), WHEREIN DETAILED SUBM ISSIONS WERE MADE. THE LD. CIT(A) HAD ALSO CALLED REMAND REPORT FROM T HE A.O. AND ASSESSEES COUNTER REPLY THEREON. THE LD. CIT(A), A CCORDINGLY, HELD THAT THERE WAS NO PROPER BASIS WITH THE A.O. TO HOLD THA T SUCH INVESTMENTS WERE BENAMI INVESTMENT OF THE ASSESSEE NOR THE A.O. DISCHARGED ITS BURDEN TO PROVE THIS FACT. THE LD. CIT(A) ALSO HELD THAT THE OFFER OF RS.15 LAKHS WAS MADE IN A CONSOLIDATED MANNER, WHICH, PRI MA FACIE, INCLUDED INCOME IN EARLIER YEARS ALSO AND THE OTHER MEMBERS OF THE ASSESSEES FAMILY WERE ASSESSED TO TAX SEPARATELY. HENCE, THES E FACTS ALSO SUPPORTED THE CLAIM OF THE ASSESSEE. ACCORDINGLY, HE DELETED THE ADDITION OF RS. 8 LAKHS MADE BY THE ASSESSING OFFICER ON THIS ACCOUNT . AGGRIEVED BY THIS, THE REVENUE IS IN APPEAL BEFORE US. 29. THE LD. DR NARRATED THE FACTS AND PLACED RELIANCE O N THE ORDER OF THE AO. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OT HER HAND, PLACED STRONG RELIANCE ON THE ORDER OF THE LD. CIT(A). 30. WE HAVE CONSIDERED THE SUBMISSIONS MADE BY BOTH THE SIDES, MATERIAL ON RECORD AND THE ORDERS OF THE AUTHORITIE S BELOW. PAGE 16 OF 17 - I.T.A.NOS. 489 TO 492 /IND/2006 & 455/IND/2006 SHANTILAL DEEPCHAND PITLIA, TAL, 31. IT IS NOTED THAT IN THE ASSESSMENT PROCEEDINGS ALSO , THE ASSESSEE HAS SUBMITTED BEFORE THE A.O. THAT ORIGINAL OFFER W AS CONDITIONAL I.E. SUBJECT TO VERIFICATION OF FACTS AND NON-REOPENING OF EARLIER ASSESSMENTS BASED UPON THE VERIFICATION OF FURTHER FACTS, THE A SSESSEE HAS SUBSEQUENTLY REDUCED SUCH ADDITIONAL INCOME TO RS. 7 LAKHS. THE A.O. HAS MERELY DISBELIEVED THE VERSION OF THE ASSESSEE. FURTHER, I N OUR OPINION, AND IN VIEW OF THE FACT THAT THE ASSESSEE WAS NOT REQUIRED TO MAINTAIN ANY REGULAR BOOKS OF ACCOUNT AND THE TAX DETAILS OF INDIVIDUAL MEMBERS OF THE ASSESSEES FAMILY RATHER SUPPORT THE CLAIMS MADE BY THE ASSESSEE. WE ALSO FIND THAT THE ASSESSEES SUBSEQUENT RETURN REVISING INCOME FURTHER DOWN TO RS. 1 LAKH HAS BEEN REJECTED. THE EARLIER REOPENED ASSESSMENTS HAVE ALSO BEEN CANCELLED BY US HEREINABOVE. HENCE, THE ACTION OF THE LD. CIT(A) IS DULY SUPPORTED BY THESE FACTS AS WELL AS THE FACTS NARRATED HEREINABOVE. ACCORDINGLY, WE DISMISS THIS GROUND OF THE APPEAL O F THE REVENUE ALSO. 32. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS D ISMISSED. 33. TO SUM UP, THE APPEALS IN I.T.A.NO. 490, 491/IND/20 06 STAND PARTLY ALLOWED AND APPEAL IN I.T.A.NO. 492/IND/2006 STANDS DISMISSED AND REVENUES APPEAL IN I.T.A.NO. 455/IND/2006 IS A LSO DISMISSED. PAGE 17 OF 17 - I.T.A.NOS. 489 TO 492 /IND/2006 & 455/IND/2006 SHANTILAL DEEPCHAND PITLIA, TAL, THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 18 TH DECEMBER, 2009. SD/- SD/- (JOGINDER SINGH) (V. K. GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 18 TH DECEMBER , 2009. CPU* 2511