Deputy Commissioner of Income-tax, V. Shraddha Constructions & Power Generation Pvt. Ltd., Pune

ITA 461/PUN/2015

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7688 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2018
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 28-03-2018
• Assessment Year: 2011-2012
• Appeal Filed On: 13-04-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR VIVEK AGGARWAL
• Keywords: Business expenditure; Income from undisclosed sources; Search and seizure; Loose papers; Document seized; Opportunity of being heard; Principle of natural justice; Opportunity of cross examination; Cost of acquisition; Block assessment; Retraction; Revised return; Documents seized
• Section: 14A; 132

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE . , , BEFORE SHRI D.KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.570/PUN/2015 / ASSESSMENT YEAR : 2011-12 M/S. SHRADDHA ENERGY & INFRAPROJECTS PVT. LTD., (FORMERLY KNOWN AS M/S. SHRADDHA CONSTRUCTION & POWER GENERATION PVT. LTD.), SHRADDHA HOUSE, A-1, PLOT NO.887A, SHIROLE ROAD, CTS NO1206, PUNE 411 001 PAN : AAICS6691L . /APPELLANT VS. DCIT, CENTRAL CIRCLE-2(1), PUNE . / RESPONDENT . / ITA NO.461/PUN/2015 / ASSESSMENT YEAR : 2011-12 DCIT, CENTRAL CIRCLE-2(1), PUNE . /APPELLANT VS. M/S. SHRADDHA ENERGY & INFRAPROJECTS PVT. LTD., (FORMERLY KNOWN AS M/S. SHRADDHA CONSTRUCTION & POWER GENERATION PVT. LTD.), SHRADDHA HOUSE, A-1, PLOT NO.887A, SHIROLE ROAD, CTS NO1206, PUNE 411 001 PAN : AAICS6691L . / RESPONDENT ASSESSEE BY : SHRI KISHOR PHADKE REVENUE BY : DR. VIVEK AGGARWAL / DATE OF HEARING : 25.04.2018 / DATE OF PRONOUNCEMENT: 09.05.2018 / ORDER PER D. KARUNAKARA RAO, AM : THESE ARE THE CROSS APPEALS FILED BY THE PARTIES AGAINST THE ORDER OF CIT(A)-12, PUNE, DATED 30-01-2015 FOR THE A.Y. 2011-12. 2 WE SHALL TAKE UP THE APPEAL OF THE REVENUE FIRST. ITA NO.461/PUN/2015 BY REVENUE A.Y. 2011-12 2. GROUNDS RAISED BY THE REVENUE ARE EXTRACTED AS UNDER : 1. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN L AW, THE LD.CIT(A) WAS NOT JUSTIFIED IN ALLOWING RENT PAID TO RAJ INFRASTRUCTURE ON ACCOUNT OF MACHINERY HIRED AS IT IS CLEARLY NOTICEA BLE THAT EXCESSIVE PAYMENT WAS MADE BY THE ASSESSEE COMPANY. 2. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LA W, THE LD.CIT(A) ERRED IN ALLOWING INTEREST ON BORROWED FUNDS WHICH WERE UTILISED BY THE ASSESSEE FOR NON-BUSINESS PURPOSE, I.E. INVESTM ENT IN AGRICULTURAL LAND. THE LD.CIT(A) ALSO FAILED TO APPRECIATE THAT THE ASSESSEE IS IN THE BUSINESS OF CONTRACTING AND HENCE CORRESPONDING INT EREST ON BORROWED FUNDS WHICH WERE UTILISED FOR NON-BUSINESS PURPOSE WAS RIGHTLY DISALLOWED BY THE AO. 3. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LA W, THE LD.CIT(A) ERRED IN ALLOWING INTEREST ON BORROWED FUNDS WHICH WERE UTILISED BY THE ASSESSEE FOR NON-BUSINESS PURPOSE, I.E. GIVING LOANS TO SOME BUSINESS CONCERNS HAVING NO BUSINESS NEXUS WITH THE ASSESSEE COMPANY. THE LD.CIT(A) ALSO FAILED TO APPRECIATE THAT THE ASSESS EE IS IN THE BUSINESS OF CONTRACTING AND HENCE CORRESPONDING INTEREST ON BOR ROWED FUNDS WHICH WERE UTILISED FOR NON-BUSINESS PURPOSE WAS RIGHTLY DISALLOWED BY THE AO. 4. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LA W, THE LD.CIT(A) ERRED IN DELETING THE ADDITION MADE BY THE AO AMOUN TING TO RS.50,00,000/- DISCLOSED BY THE ASSESSEE COMPANY AT THE TIME OF SEARCH ACTION. THE LD.CIT(A) FAILED TO APPRECIATE THAT THIS AMOU NT WAS DISCLOSED BY THE ASSESSEE COMPANY IN THE STATEMENT RECORDED U/S.132(4) OF THE ACT, WHICH ITSELF IS A GOOD PIECE OF EVIDENC E. THE LD.CIT(A) ALSO LOST SIGHT BY NOT CONSIDERING THAT RETRACTION ON THIS UN DISCLOSED INCOME WAS MADE BY THE ASSESSEE COMPANY ALMOST AN YEAR AFTER T HE SEARCH ACTION. 5. THE ORDER OF LD.CIT(A) MAY BE VACATED AND THAT O F THE ASSESSING OFFICER BE RESTORED. 6. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND MODIFY ANY OF THE ABOVE GROUNDS OF APPEAL. 3. BRIEFLY STATED RELEVANT FACTS ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF EXECUTION OF IRRIGATION CONTRACTS AND GENE RATION OF ENERGY FROM THE WINDMILLS. THERE WAS SEARCH AND SEIZURE A CTION U/S.132 OF THE ACT ON THE SHRADDHA GROUP OF CASES ON 0 8-09-2010. MR.SHIVAJIRAO BAGWAN JADHAV IS A MANAGING PERSON FOR THIS GROUP. SEARCH RESULTED IN DISCLOSURE OF UNACCOUNTED INCOME OF RS.1 0.99 CRORES ON ACCOUNT OF ON-MONEY PAYMENTS IN PURCHASE OF LANDS, SU PPRESSION OF 3 CLOSING STOCK ETC. ASSESSMENT WAS COMPLETED ON THE ASSE SSED INCOME OF RS.6.68 CRORES (ROUNDED OFF). APART FROM OTHER ADDITIONS, AO MADE VARIOUS ADDITIONS AND THEY INCLUDE THE ADDITION OF RS.1,61,94,4 64/- ON ACCOUNT OF UNPAID COMMISSION AS WELL AS THE BUFFER DISCLOSURE OF RS.50 LAKHS AND OTHERS. GROUNDS RAISED BY THE ASSESSEE IN TH IS APPEAL REVOLVES AROUND THIS ADDITION OF RS.1,61,94,464/-. FURTHER, T HE REVENUE RAISED THE ISSUE RELATING TO RENT PAID TO M/S. RA J INFRASTRUCTURE, DISALLOWANCE OF INTEREST, BUFFER DISCLOSURE OF R S.50 LAKHS. 4. LD. DR FOR THE REVENUE RELIED ON THE ORDER OF THE AO DUTIFULLY. 5. PER CONTRA, LD. COUNSEL FOR THE ASSESSEE SUBMITTED TH AT THE ISSUES RAISED IN GROUND NOS. 1 TO 3 BY THE REVENUE APPE AL STANDS COVERED AND THEREFORE, THEY ARE REQUIRED TO BE DISMISSED. IN TH IS REGARD, LD. COUNSEL FILED A COPY OF THE ORDER OF TRIBUNAL IN ASSESSEE S OWN CASE VIDE THE ORDER OF THE TRIBUNAL IN ITA NO.495/PUN/2015, DAT ED 11-04- 2018 FOR THE A.Y.2009-10. 6. AFTER HEARING BOTH THE PARTIES, WE FIND THESE ISSUES RA ISED BY THE REVENUE VIDE GROUND NO. 1 AS WELL AS 2 AND 3 ARE IDENTICA L TO THE GROUNDS RAISED BY THE REVENUE IN THE GROUP CONCERN V IDE ITA NO.459/PUN/2015 FOR THE A.YRS. 2009-10, DATED 11-04-201 8. GROUND- WISE ADJUDICATION IS TAKEN UP IN THE FOLLOWING PARAGRAPHS. 7. REGARDING THE ISSUE RAISED IN GROUND NO.1 RELATING TO E XCESS RENTALS PAID TO M/S.RAJ INFRASTRUCTURE DEVELOPERS, THE TR IBUNAL WHILE DEALING WITH THE SAME ISSUE IN THE CASE OF ITS SISTER CONCE RN - SHRADDHA CONSTRUCTIONS & POWER GENERATION PVT. LTD., DISMISSED THE APPEAL O F THE REVENUE AND IN FAVOUR OF THE ASSESSEE. RELEVANT FINDING OF THE TRIBUNAL (SUPRA) IS EXTRACTED HERE AS UNDER FOR THE SAKE OF COMPLETENESS : 4 8. ON HEARING BOTH THE SIDES ON THIS ISSUE, WE FIN D THE UNDISPUTED FACTS INCLUDE THAT THE ASSESSEE HIRED 2 EXCAVATORS FOR THE BUSINESS PURPOSE OF THE ASSESSEE, THE PAYMENT MADE BY THE AS SESSEE BY WAY OF BANKING CHANNELS TO M/S. RAJ INFRASTRUCTURE DEVELOP ERS, TAXABILITY OF THE SAME IN BOTH THE HANDS ETC. IT IS THE SUSPICION OF THE AO THAT THE RENTAL PAYMENTS QUA THE COST OF ACQUISITION OF THE ASSETS BY THE OWNER OF THE ASSETS ARE ON HIGHER SIDE. HOWEVER, NO INFORMATION IS BROUGHT ON TO THE RECORD THAT THE PAYMENT OF RENT OF RS.2,50,000/- PE R VEHICLE IS EXCESSIVE OR UNREASONABLE. INFACT, THERE IS AN EVIDENCE FROM THE ASSESSEES SIDE TO DEMONSTRATE THAT THERE ARE CASES OF OBTAINING A QUO TATION OF A.K. CONSTRUCTIONS AND MANISHA INFRASTRUCTURE PVT. LTD. TO THE TUNE OF RS.3,25,000/- AND 3,40,000/- RESPECTIVELY PER EX-30 0 EXCAVATOR PER MONTH (PAGES 64A, 64B AND 64C OF THE PAPER BOOK ARE RELEVANT). LETTER DT. 26-03-2013 ADDRESSED BY THE LD. AR TO THE DCIT, CIRCLE-2(1) CONSTITUTES FORWARDING OF THE QUOTATIONS RECEIVED F ROM A.K. CONSTRUCTIONS AND MANISHA INFRASTRUCTURE PVT. LTD. FOR COMPARISON OF REASONABLENESS OF RENT PAID BY ASSESSEE TO M/S. RAJ INFRASTRUCTURE DE VELOPERS. THEREFORE, IN OUR VIEW, NO CASE IS MADE OUT BY THE AO TO DEMON STRATE THAT THE PAYMENTS MADE BY THE ASSESSEE CONSTITUTES EXCESSIVE AND UNREASONABLE. FURTHER, WE EXAMINED THE APPLICABILITY OF THE DECIS ION OF JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. SALITHO ORES (SUP RA) AND FIND THE SAME IS RELEVANT FOR THE FOLLOWING PROPOSITION : AS LONG AS EXPENDITURE IS INCURRED BONA FIDE IN PU RSUIT OF A BUSINESS AND NOT BY WAY OF DIVERSION OF FUNDS, IT H AS TO BE ALLOWED AS A DEDUCTION ENTIRE LEASE RENT PAID BY T HE ASSESSEE FOR HIRING THE DOZERS FOR USING THEM IN ITS BUSINESS WA S ALLOWABLE AS A BUSINESS EXPENDITURE EVEN THOUGH ASSESSEE DID NOT ACTUALLY USE 3 OUT OF THE 4 HIRED DOZERS. 9. FROM THE ABOVE, THE SPIRIT OF THE LEGAL PROPOSIT ION IS AMPLY CLEAR THAT THE ONUS IS ON THE AO TO DEMONSTRATE THAT THAT THE PAYMENTS MADE BY THE ASSESSEE ARE EXCESSIVE WHICH CONSTITUTE A CA SE OF DIVERSION OF FUNDS. IN THE PRESENT CASE, AO MERELY OPINED THE E XCESSIVENESS OF THE PAYMENTS AGAINST THE ASSESSEE WITHOUT HAVING STRENG TH OF ANY INCRIMINATING MATERIAL, LEAVE-ALONE THIRD PARTY INFO RMATION. AS SUCH, NO CASE IS MADE OUT ABOUT THE IN-GENUINENESS OF THE TR ANSACTION, I.E. PAYMENT OF RENT TO M/S. RAJ INFRASTRUCTURE DEVELOPE RS OF HIRING OF 2 EX- 300 EXCAVATORS. CONSIDERING THE SAME, WE ARE OF TH E OPINION THAT THE ORDER OF CIT(A) ON THIS ISSUE IS FAIR AND REASONABL E AND DOES NOT CALL FOR ANY INTERFERENCE. ACCORDINGLY, GROUND NO.1 RAISED BY THE REVENUE IS DISMISSED. FOLLOWING THE SAME REASONING, WE DISMISS THE GROUND RAISED BY THE REVENUE HOLDING OF THE ORDER OF CIT(A) AS FAIR AND REA SONABLE. ACCORDINGLY, GROUND NO.1 RAISED BY THE REVENUE IS DISMISSED. 8. REGARDING THE SECOND ISSUE RAISED BY THE REVENUE V IDE GROUND NOS. 2 AND 3 RELATING TO CLAIM OF INTEREST DISALLOWANCE, WE FIN D THIS ISSUE IS ALSO IDENTICAL TO THE GROUNDS RAISED BY THE REVE NUE IN NO.459/PUN/2015 FOR THE A.YRS. 2009-10, DATED 11-04-2018 . THE 5 TRIBUNAL DISMISSED THE APPEAL OF THE REVENUE FOLLOWING THE DE CISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE A.YRS. 2006-0 7 & 2008-09. THE SAID FINDING IS EXTRACTED HERE AS UNDER FOR THE SAKE OF COMPLETENESS: 11. AFTER HEARING BOTH THE SIDES ON THESE ISSUES, W E FIND THE REVENUE IN ASSESSEES OWN CASE FILED APPEALS FOR THE A.YRS. 2006-07 AND 2008-09 ON SIMILAR GROUNDS AND THE TRIBUNAL VIDE ITA NOS. 4 57 & 258/PUN/2015, DATED 28-11-2007 DISMISSED THE SAID GROUNDS AND IN FAVOUR OF THE ASSESSEE. WE FIND IT RELEVANT TO EXTRACT THE SAID FINDINGS OF THE TRIBUNAL GIVEN AT PARA NOS. 10 TO 14 OF THE SAME. THE SAID PARAS ARE REPRODUCED HERE AS UNDER : 10. REFERRING TO GROUND NOS. 2 AND 3 RAISED BY THE REVENUE, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE I S NO DISPUTE ABOUT THE ABSENCE OF ANY INCRIMINATING MATERIAL ON THESE TWO ITEMS OF DISALLOWANCE. THEREFORE, THE CIT(A) IS JU STIFIED IN DELETING THE ADDITIONS FOR THIS LEGAL REASON ALSO. 11. LD. COUNSEL FOR THE ASSESSEE, DEVIATING FROM TH E ABOVE LINE OF ARGUMENTS, SUBMITTED THAT SIMILAR DISALLOWANCES W ERE MADE BY THE AO IN THE REGULAR ASSESSMENT U/S.143(3) OF THE ACT AND THE ADJUDICATION IS NOW PENDING BEFORE THE CIT(A). FOR BRINGING FINALITY EARLY ON THESE ISSUES, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT HE SHALL HAVE NO OBJECTION IF THE FI NDINGS OF CIT(A) ARE REVERSED AND THE GROUND NOS. 2 & 3 OF THE REVEN UE ARE ALLOWED NOTWITHSTANDING THE STRONG CASE THE ASSESSE E HAS ON ALL THESE ISSUES. LD. COUNSEL FOR THE ASSESSEE GIVES CO NCESSION IN THIS REGARD ONLY IN VIEW OF EARLY FINALITY ON THE ISSUES . HE CONCEDED THE SAME IN THESE APPEALS AND OPINED TO A REQUEST T O THE LD.CIT(A) WITH APPROPRIATE REQUEST FOR GRANTING RELIEF IN THE APPEALS PENDING WITH HIM ON THE SIMILAR ADDITIONS. IN THIS REGARD, L D. COUNSEL FILED WRITTEN SUBMISSIONS AND RELIED ON THE CONTENTS OF P ARA NOS. 4 AND 5 OF HIS SYNOPSIS. FOR THE SAKE OF COMPLETENESS, T HE SAME ARE EXTRACTED AS UNDER : AS SUCH, THE REGULAR ASSESSMENT ORDER DATED 26-11- 2008 (AND THE APPEAL FILED AGAINST THE SAME FILED IN YEAR 200 8) DOES NOT ABATE. IN OTHER WORDS, THE SAID APPEAL OUGHT TO CO NTINUE AS SUCH, AND THE RELIEF (IF ANY) AGAINST THE SAID APPEAL OUG HT TO BE REAPED IN THE SAID APPEAL ONLY. IT IS SUBMITTED, AN ASSESSEE OUGHT NOT TO GET RELIEF AGAINST THE REGULAR ASSESSMENT IN THE SEARC H BASED APPEAL FOR SUCH YEAR, SINCE SUCH A YEAR IS NOT PENDING BEF ORE THE ASSESSING AUTHORITY. 5. CONCLUSION AS SUCH, THE ASSESSEE FEELS, THE GROUNDS OF APPEAL NO.3 OF THE REVENUE FOR A.Y. 2006-07, CHALLE NGING RELIEF OF RS.4,09,201/- OUGHT TO BE ALLOWED AND BE DECIDED AS SUCH. 12. ON HEARING BOTH THE PARTIES ON THE ISSUES DISCU SSED ABOVE, WE FIND THAT THE REVENUE IS AGGRIEVED WITH THE RELI EF GRANTED BY THE CIT(A) WITH REGARD TO (1) THE DISALLOWANCE OF R ENT PAID BY THE ASSESSEE TO M/S. RAJ INFRASTRUCTURE DEVELOPERS VIDE GROUND NO.1 AS WELL AS (2) THE DISALLOWANCE OF INTEREST RECEIVE D BY THE ASSESSEE ON BORROWED FUNDS WHEN UTILIZED FOR NON-BU SINESS PURPOSES VIDE GROUND NOS. 2 & 3 OF APPEAL OF REVENU E. DURING THE PROCEEDINGS BEFORE US, ASSESSEE RAISED AN ORAL GROUND SUPPORTED BY THE WRITTEN SYNOPSIS RELATING TO THE D ISALLOWABILITY OF 6 ADDITIONS ON LEGAL REASONING RELATING TO ABSENCE OF ANY INCRIMINATING MATERIAL AND UNSUSTAINABILITY OF SUCH ADDITIONS NOT SUPPORTED BY ANY INCRIMINATING MATERIAL. AS SUCH, I T IS AN ADMITTED FACT THAT THE BLANK LETTER HEADS ARE THE O NLY SEIZED MATERIAL PERTAINING TO THIS ISSUE. WE HAVE ALREADY HELD THAT SUCH BLANK LETTER HEADS DO NOT AMOUNT TO THE INCRIMINATIN G MATERIAL. THEREFORE, WE ARE OF THE OPINION THAT GROUND NO.1 O F REVENUE NEEDS TO BE DISMISSED ON THIS LEGAL REASONING. 13. REGARDING THE GROUND NOS. 2 & 3 OF THE REVENUE, WE FIND THE CIT(A) GRANTED RELIEF ON FINDING THE EXISTENCE OF EXCESS OWN FUNDS OF THE ASSESSEE. NOTWITHSTANDING THE ABOVE, L D. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ASSESSEE HAS CONCEDED A ND REQUESTED FOR REVERSAL OF THE FINDING OF THE CIT(A) ON THIS ISSUE AND DECIDE THE ISSUE AGAINST THE ASSESSEE. WE FIND THE SAID CONCESSION IS NOT IN TUNE WITH THE SETTLED LEGAL PO SITION ON THE ISSUE. THEREFORE, WE DISMISS THE SAME. 14. ON PERUSAL OF THE ABOVE WRITTEN SUBMISSIONS FIL ED BY THE ASSESSEE ON THESE ISSUES QUA THE DISALLOWANCE OF IN TEREST ON PART BORROWED CAPITAL, WE ARE OF THE VIEW THAT THE FINDI NG OF THE CIT(A) IS FAIR AND REASONABLE AS THE SAID DECISION HAS THE BACKING OF THE JURISDICTIONAL HIGH COURT JUDGMENT IN THE CASE OF CIT VS. RELIANCE UTILITIES AND POWER LTD. REPORTED IN 313 ITR 340 AN D CIT VS. HDFC LTD. REPORTED IN 366 ITR 505. THUS, THE DECISION G IVEN BY THE CIT(A) STANDS CONFIRMED. THUS, GROUND NOS. 2 & 3 R AISED BY THE REVENUE ARE DISMISSED. 12. CONSIDERING THE ABOVE SETTLED NATURE OF THE ISS UES IN THE ASSESSEES OWN CASE, WE DISMISS THE GROUND NOS. 2 AN D 3 RAISED BY THE REVENUE. 9. SINCE THE GROUNDS RAISED BY THE REVENUE ARE IDENTICA L TO THE GROUNDS RAISED BY THE REVENUE FOR A.Y. 2009-10, THEREFO RE, FOLLOWING THE SAME REASONING GIVEN BY THE TRIBUNAL, WE HOLD THAT TH E ORDER OF CIT(A) IS FAIR AND REASONABLE. ACCORDINGLY, THE GROUND NOS . 2 AND 3 RAISED BY THE REVENUE ARE DISMISSED. 10. GROUND NO.4 BY THE REVENUE RELATES TO THE BUFFER DISC LOSURE OF RS.50 LAKHS REFLECTED BY THE ASSESSEE SUBSEQUENTLY. CIT (A) GRANTED RELIEF ON THIS ISSUE. THEREFORE, THE REVENUE IS IN APPEAL. 11. IT IS THE SUBMISSION OF THE ASSESSEE THAT THE ONLY LE FT OVER ISSUE THAT REQUIRES DETAILED ANALYSIS IN THE REVENUE APPEAL RE LATES TO THE DELETION OF ADDITION OF RS.50 LAKHS DISCLOSED BY THE ASSESSEE TOWARDS OMISSIONS OR COMMISSIONS IF ANY DURING THE SEARCH ACTION. LD. COUNSEL 7 FOR THE ASSESSEE SUBMITTED THAT THIS IS A CASE WHERE TH E REVENUE COULD HAVE EXAMINED ALL THE DETAILS BEFORE ASSESSMENT IS MADE. I NFACT AO HAS SUFFICIENT TIME AFTER RETRACTION FOR SCANNING THE SEIZED MATE RIAL FOR WANT OF DISCOVERY OF OMISSIONS AND COMMISSIONS. FURTHER, IT IS T HE CASE OF THE ASSESSEE THAT THERE IS NO INCRIMINATING MATERIAL TO DE MAND THE ADDITIONAL DISCLOSURE OF RS.50 LAKHS FROM THE ASSESSEE. THE DISCLOSURE OF RS.50 LAKHS OFFERED BY THE ASSESSEE DURING SEARCH ACTIO N IS PURELY A ADHOC DECLARATION ON ACCOUNT OF PRESSURES OF THE INVESTIG ATING OFFICER DURING SEARCH ACTION. HE ALSO SUBMITTED THAT IN THE ABSE NCE OF ANY INCRIMINATING MATERIAL THE INVESTIGATING OFFICER SHOULD NOT HAV E TAKEN DISCLOSURES IN VIEW OF THE CBDT CIRCULAR NO.286/2/2003, DATE D 10-03-2003. CONSIDERING THE SAME, HE SUBMITTED THAT THE DECISION OF CIT(A) IS FAIR AND REASONABLE AND DOES NOT CALL FOR ANY INTERFERENCE. ALTERNATIVELY, IT IS THE SUBMISSION OF THE LD. COUNSEL THAT MATTER CAN BE REMANDED TO THE FILE OF AO FOR APPLYING THE FOLLOWING DECISIONS : (A) DCIT VS. SHRI SHIVAJI BHAGWANRAO JADHAV ITA N OS. 680 TO 682/PUN/2015, ITA NO.699/PUN/2015 AND CO NO.10/PUN/ 2018, DATED 25-04-2018 (B) ACIT VS. JAYANT HIRALAL SHAH ITA NO.546/PN/20 12, DATED 25-06- 2013 (C) DCIT VS. SANMUKHDAS WADHWANI 85 ITD 734 (NAGPUR TRIBUNAL) (D) POONAWALLA INVESTMENTS AND INDUSTRIES PVT. LTD. ITA NO.1685/PUN/2015, DATED 18-04-2018 12. AFTER HEARING BOTH THE SIDES ON THIS ISSUE AND ON PER USING THE ORDERS OF THE REVENUE, WE FIND THIS ISSUE ALSO STANDS DECID ED IN FAVOUR OF THE ASSESSEE BY VIRTUE OF ORDER OF TRIBUNAL IN THE CASE OF SERUM INSTITUTE OF INDIA LTD. VS. DCIT IN ITA NOS. 985 & 986/PUN /2015 DATED 28-11-2017 FOR A.YRS. 2006-07 & 2007-08. IN THIS REGARD , WE FIND IT 8 RELEVANT TO EXTRACT THE FINDING GIVEN BY THE TRIBUNAL FROM PARA NOS. 28 TO 41 HERE AS UNDER : 28. GROUND NO.5 RELATES TO INCLUSION OF INCOME OF AN AMOUNT OF RS.1 CRORE WHICH WAS OFFERED AS CONTINGENCY IN THE STATE MENT U/S.132(4) OF THE ACT. RELEVANT FACTS ARE THAT THE ASSESSEE WAS COVERED U/S.132 OF THE ACT AND THE SAME RESULTED IN DISCLOSURE OF UNDISCLO SED INCOME. DETAILS ARE GIVEN IN PARA NOS. 13 AND 13.1 (PAGES 55 TO 60) OF THE ORDER OF CIT(A). ACCORDINGLY, RS. 1 CRORE WAS OFFERED AGAINST THE CO NTINGENCIES IF ANY TO BE SET OFF AGAINST THE DISCREPANCIES/OMISSIONS. WHILE FILING THE RETURN OF INCOME, AND ADHERING TO THE SAID STATEMENT U/S.132( 4) OF THE ACT, SAID AMOUNT OF RS. 1 CRORE WAS OFFERED AS UNDISCLOSED IN COME OF THE ASSESSEE FOR THE YEAR. ACCORDINGLY, THE SAME WAS TAXED ALTHO UGH NO SPECIFIC DISCREPANCIES/OMISSIONS WERE BROUGHT TO THE NOTICE OF THE ASSESSEE. ASSESSEE DID NOT RAISE ANY ISSUE BEFORE THE AO. HO WEVER, BEFORE THE CIT(A), ASSESSEE SUBMITS THAT SAID CONTINGENCY OF RS.1 CRORE SHOULD NOT BE TAXED AND THE SAME IS REQUIRED TO BE EXCLUDED FRO M THE UNDISCLOSED INCOME OFFERED BY THE ASSESSEE. CIT(A) REJECTED TH E SAID DEMAND OF THE ASSESSEE AS PER THE DISCUSSION GIVEN IN PARA 13.2 O F HIS ORDER. THUS, CIT(A) DECIDED THIS ISSUE AGAINST THE ASSESSEE. 29. TO SUM UP HIS FINDING, IN THE SAID PARA, THE CI T(A) HELD THAT THE CLAIM MADE BY THE ASSESSEE THAT SUCH INCOME OF RS.1 CRORE MAY BE EXCLUDED FROM THE TOTAL INCOME ASSESSED BY THE ASSE SSEE AS NO DISCREPANCIES WERE FOUND DURING THE ASSESSMENT PROC EEDINGS, CANNOT BE ACCEPTED AS THE SAID ADDITIONAL INCOME WAS OFFERED VOLUNTARILY IN THE RETURN OF INCOME. IF ACCEPTED, THE ASSESSED INCOME SHALL BE LOWER THAN THE RETURNED INCOME. THE ALTERNATIVE CLAIM OF THE ASSESSEE FOR SET OFF OF SUCH CONTINGENCIES AGAINST OTHER DISALLOWANCES U/S. 14A OF THE ACT MADE BY THE AO WAS ALSO REJECTED DESPITE THE EXISTENCE O F THE FAVOURABLE DECISION OF THE TRIBUNAL IN THE GROUP CASES OF THE ASSESSEE (M/S. ADURJEE BROTHERS PVT. LTD.). AGGRIEVED WITH THE ORDER OF CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US. 30. BEFORE US, LD. COUNSEL FOR THE ASSESSEE SUBMITT ED THAT SIMILAR ISSUE WITH SOME VARIANCE CAME UP FOR ADJUDICATION B EFORE THE TRIBUNAL IN A CASE BELONGING TO THE SAME GROUP NAMED M/S. ADURJ EE BROTHERS PVT. LTD. (SUPRA). IN THIS CASE, THE DEMAND OF THE ASSE SSEE WAS FOR SET OFF OF THE OTHER DISALLOWANCES MADE U/S.14A OF THE ACT AGA INST SUCH CONTINGENCY DISCLOSURE. THE TRIBUNAL ALLOWED THE A RGUMENT OF THE ASSESSEE ON THIS ISSUE OF SET OFF. CONTENTS OF PAR A NO.12 OF THE ORDER OF THE TRIBUNAL IN ITA NO.1067/PN/2014 DATED 13-06-201 4 ARE RELEVANT AND THEREFORE WE PROCEED TO EXTRACT THE SAME AS UND ER : 12. WE FIND MERIT IN THE ALTERNATE CONTENTION OF T HE LD. COUNSEL FOR THE ASSESSEE THAT THE AMOUNT OF RS.75 LAKHS OFF ERED TO TAX IN THE STATEMENT RECORDED U/S.132(4) BE SET OFF AGAINS T THE DISALLOWANCE CALCULATED UNDER THE PROVISIONS OF SEC TION 14A R.W. RULE 8D. ADMITTEDLY, THE ASSESSEE HAD MADE DISCLOS URE OF RS.75 LAKHS VOLUNTARILY AS ADDITIONAL INCOME UNDER THE HE AD CONTINGENCIES TO COVER ANY OTHER ERRORS, OMISSION S OR DISCREPANCIES. THE SUBMISSION OF THE LD. COUNSEL F OR THE ASSESSEE THAT THE AMOUNT OF RS.75 LAKHS WAS VOLUNTA RILY OFFERED AND THERE WAS NO DETECTION OF ANY INCRIMINATING MAT ERIAL OR UNDISCLOSED INCOME COULD NOT BE CONTROVERTED BY THE LD. DEPARTMENTAL REPRESENTATIVE. WE, THEREFORE, FIND M ERIT IN THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE AMOUNT OF RS.75 LAKHS OFFERED BY THE ASSESSEE AS UNDISCLOSED INCOME TO COVER ANY ERRORS, OMISSIONS OR DISCREPANCIES IN COM PUTING THE 9 TAXABLE INCOME SHOULD BE SET OFF AGAINST THE DISALL OWANCE MADE U/S.14A R.W. RULE 8D OF THE I.T. ACT. WE, THEREFORE, SET ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE AO TO RESTRI CT THE DISALLOWANCE U/S.14A R.W. RULE 8D TO RS.18,19,294/- I .E. (RS.93,24,674 RS.75,00,000/-). GROUNDS OF APPEAL NO.1 TO 3 BY THE ASSESSEE ARE ACCORDINGLY PARTLY ALLOWED. 31. FROM THE ABOVE, WE FIND THE TRIBUNAL PERMITTED FOR SETTING OFF THE DISALLOWANCE OF EXPENDITURE U/S.14A OF THE ACT AGAI NST THE SAID BUFFER DISCLOSURE OF INCOME. IN THAT CASE, RS. 75 LAKHS W AS OFFERED AS BUFFER AND THE ISSUE OF DISCLOSURE U/S.14A OF THE ACT CREA TED THE ADDITIONAL INCOME EXCEEDING THE SAID BUFFER DISCLOSURE OF RS.7 5 LAKHS. FURTHER, IN THE SAID DECISION, THE INCOME ASSESSED NEVER FELL B ELOW THE RETURNED INCOME. HOWEVER, THERE IS NO DISCUSSION OR DECISIO N OF THE TRIBUNAL ON THE ISSUE OF REDUCTION OF THE DISCLOSED RETURNED IN COME. THEREFORE, WE SHALL PROCEED TO ANALYSE THE LEGAL SCOPE ON THIS IS SUE. LEGAL SCOPE ON THE SANCTITY OF RETURNED INCOME IF THE ASSESSED INCOME BE LESS THAN THE RETURNED INCOME. 32. ON THIS ISSUE, LD. COUNSEL FOR THE ASSESSEE SUB MITTED THAT IT IS A SETTLED LEGAL PROPOSITION IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. FOR THIS, LD COUNSEL RELIED ON VARIOUS BI NDING JUDGMENTS OF APEX COURTS AND OTHERS. WE SHALL NOW PROCEED TO AN ALYSE EACH OF THEM HERE AS UNDER. 33. TO START WITH, WE WILL TAKE UP THE APEX COURTS JUDGMENT IN THE CASE OF COMMISSIONER OF INCOME-TAX V. SHELLY PRODUC TS [2003] 261 ITR 367 (SC), THE APEX COURT HELD IN FAVOUR OF REFUNDIN G OF THE EXCESS TAXES PAID (OF ADVANCE TAX AS WELL AS SELF-ASSESSMENT TAX ) OUT OF ABUNDANT CAUTION OR OWING TO ERROR OR NON TAXABILITY. HELD PORTION OF THIS JUDGMENT IS EXTRACTED AS UNDER : HOWEVER, FAILURE OR INABILITY OF THE REVENUE TO FR AME A FRESH ASSESSMENT SHOULD NOT PLACE THE ASSESSEE IN A MORE DIS- ADVANTAGEOUS POSITION THAN HE WOULD HAVE BEEN IN IF A FRESH ASSESSMENT WERE MADE. IN A CASE WHERE THE ASSESSEE CHOOSES TO DEPOSIT, BY WAY OF ABUNDANT CAUTION , ADVANCE TAX OR TAX ON SELF ASSESSMENT WHICH IS IN EXCESS OF HIS LIABILITY ON T HE BASIS OF THE RETURN FURNISHED OR, IF THERE IS AN ARITHMETICAL ER ROR OR INACCURACY, IT IS OPEN TO THE ASSESSEE TO CLAIM REFUND OF THE E XCESS TAX PAID IN THE COURSE OF THE ASSESSMENT PROCEEDINGS. HE CAN C ERTAINLY MAKE SUCH A CLAIM BEFORE THE CONCERNED AUTHORITY CALCULA TING THE REFUND. SIMILARLY, IF THE ASSESSEE HAS, BY MISTAKE OR INADVERTENCE OR ON ACCOUNT OF IGNORANCE, INCLUDED IN HIS INCOME ANY AMOUNT WHICH IS EXEMPTED FROM PAYMENT OF INCOME-TAX, OR IS NOT I NCOME WITHIN THE CONTEMPLATION OF LAW, HE MAY LIKEWISE BRING THIS TO THE NOTICE OF THE ASSESSING AUTHORITY, WHICH, IF SATISFIED, MAY GRANT HIM RELIEF AND REFUND THE TAX PAID IN EXCESS, IF ANY. SUCH MATTERS CAN BE BROUGHT TO THE NOTICE OF THE CONCERN ED AUTHORITY IN A CASE WHERE A REFUND IS DUE AND PAYABLE, AND THE AUT HORITY CONCERNED, ON BEING SATISFIED, SHALL GRANT APPROPRI ATE RELIEF. 34. IN THE CASE OF GUJARAT GAS COMPANY LTD. VS. JCI T (245 ITR 84) THE HONBLE GUJARAT HIGH COURT HELD THAT THE INSTRUCTIO N OF THE CBDT CIRCULAR NO.549 (PARA NO.5.12 DATED 31-10-1989 IS ULTRA-VIRE S WHEN THE SAID INSTRUCTION MANDATES THE AO AGAINST MAKING THE SCRU TINY ASSESSMENTS AT THE FIGURE LESS THAN THAT RETURNED BY THE ASSESSEE. RELEVANT HELD PORTION OF THIS JUDGMENT READS AS UNDER : 10 HELD, THAT THE CIRCULAR IN QUESTION REFERS TO ASSE SSMENTS WHICH ARE TO BE MADE U/S.143(3) OF THE ACT. THE CIRCULAR DIRECTS THAT IN A PARTICULAR TYPE OF CASES, I.E. IN SCRUTINY CASES U/ S.143(3) OF THE ACT, THE INCOME CAN NEITHER BE ASSESSED AT A FIGURE LOWER THAN THE RETURNED INCOME NOR THE LOSS ASSESSED AT A FIGURE H IGHER THAN THE LOSS NOR FURTHER REFUND GIVEN EXCEPT WHAT WAS DUE O N THE BASIS OF THE RETURNED INCOME. THUS, BY ISSUANCE OF THE CIRC ULAR, THE QUASI- JUDICIAL OFFICER IS DIRECTED TO ASSESS CASES OF PAR TICULAR NATURE IN A PARTICULAR MANNER. THE ASSESSING OFFICER BEING BOU ND BY IT HAD ABDICATED HIS FUNCTION AND DID NOT ACT INDEPENDENTL Y AND, THEREFORE, THERE WAS NO QUESTION OF ALTERNATIVE REM EDY WHICH WAS A FUTILE REMEDY. IN FACT, THE JURISDICTION HAD BEE N EXERCISED BY THE CENTRAL BOARD OF DIRECT TAXES BY ISSUING THE CIRCUL AR AND, THEREFORE, THE ORDER OF THE ASSESSING OFFICER WAS W ITHOUT JURISDICTION. THE COURT HAD TO EXERCISE ITS JURISD ICTION UNDER ARTICLE 226. THE ORDER OF THE ASSESSING OFFICER TO THE EXT ENT IT STATED THAT THE TOTAL INCOME WOULD BE THE RETURNED INCOME, WAS TO BE SET ASIDE, WITH A DIRECTION TO THE ASSESSING OFFICER TO MAKE ASSESSMENT WITHOUT KEEPING IN MIND THE CENTRAL BOAR D OF DIRECT TAXES CIRCULAR DATED 31-10-1989. 35. THE SAME HONBLE GUJARAT HIGH COURT AGAIN IN TH E CASE OF CIT VS. MILTON LAMINATES LTD. VIDE TAX APPEAL NO.1022 OF 201 0 DATED 24-01- 2012 HELD THE ISSUE IN FAVOUR OF THE ASSESSEE AND A GAINST THE REVENUE. REVENUE TOOK THE ISSUE TO THE HONBLE HIGH COURT ON THE ISSUE, IF THE TRIBUNALS DIRECTION TO THE AO TO ALLOW COMPLETE EF FECT TO THE ORDER OF THE CIT(A) WITHOUT RESTRICTING THE INCOME TO THE RETURN ED INCOME. IN THIS CASE, AFTER GIVING EFFECT TO THE ORDER OF THE CIT(A), THE INCOME ASSESSED HAS FALLEN BELOW THE RETURNED INCOME OF THE ASSESSEE. THE HONBLE HIGH COURT UPHELD THE ORDER OF THE TRIBUNAL. RELEVANT L INES FROM THIS JUDGMENT ALSO ARE EXTRACTED AS UNDER : 7. IN VIEW OF THE ABOVE, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE TRIBUNALS ULTIMATE CONCLUSION IN ALLOWING THE ASSESSEES APPEAL. THOUGH SOME OF THE OBSERVATIONS MAY NOT AP PEAL TO US, NEVERTHELESS, FOR THE REASONS SOMEWHAT DIFFERENT FR OM THOSE RECORDED BY THE TRIBUNAL WE COME TO THE SAME CONCLU SION. DECISION OF THE APEX COURT IN CASE OF SHELLY PRODUCTS & OTHERS (SUPRA), WAS RENDERED IN VERY DIFFERENT BACKGROUND. IT WAS A CASE WHERE THE ASSESSEE HAD FILED RETURN. ASSESSEE HAD PAID SELF ASSESSMENT TAX ON THE INCOME DISCLOSED IN THE RETUR N. TRIBUNAL ON APPEAL BY THE ASSESSEE HELD THAT THE ORDER OF THE A SSESSMENT PASSED BY THE ASSESSING OFFICER WAS AB-INITIO VOID SINCE HE HAD NO JURISDICTION TO DEAL WITH SUCH PROCEEDINGS. REVENU E SOUGHT REFERENCE BEFORE THE HIGH COURT. WHEN SUCH REFEREN CE WAS PENDING, THE ASSESSEE APPLIED TO THE DEPARTMENT FOR REFUND OF THE TAX PAID. IT WAS IN THIS BACKGROUND THE APEX COURT EXPRESSED THE OPINION THAT LIABILITY TO PAY INCOME TAX DOES NOT D EPEND ON ASSESSMENT BEING MADE AND FAILURE OR INABILITY TO F RAME FRESH ASSESSMENT AFTER EARLIER ASSESSMENT IS SET ASIDE OR NULLIFIED IN APPROPRIATE PROCEEDINGS, DOES NOT DISENTITLE THE AS SESSEE TO CLAIM REFUND OF THE ADVANCE TAX AND TAX PAID ON SELF ASSE SSMENT BECAUSE TO THAT EXTENT THE ASSESSEE HAD ADMITTED HI S LIABILITY TO PAY TAX IN ACCORDANCE WITH LAW. FACTS OF THE PRESE NT CASE ARE THEREFORE, DIFFERENT. IN CASE OF HAND, THE ASSESSM ENT WAS NOT RENDERED NULL. IN FACT SUCH ASSESSMENT, WHICH ACCO RDING TO THE ORDER OF CIT(APPEALS) HAD BECOME FINAL TAX LIABILIT Y OF THE ASSESSEE, CAME LOWER THAN THAT DECLARED BY HIM IN T HE RETURN FILED. 11 (1) TO SUM UP, FROM THE ABOVE, IT IS OBVIOUS THAT T HE FETTERS IMPOSED BY THE CBDT, ON THE AOS, WHEN IT COMES TO ASSESSING THE INCOME OF ASSESSEE LOWER THAN THE RETURNED INCOME, ARE HELD U LTRA VIRES. FURTHER, THE HONBLE APEX COURT ALSO HELD THAT THE TAXES PAI D BY THE ASSESSEE AS A MATTER OF ABUNDANT CAUTION, I.E. BY WAY OF ADVANC E OR SELF ASSESSMENT TAXES, NEEDS TO BE REFUNDED AFTER DUE VERIFICATION OF THE CLAIMS. (2) LD. COUNSEL FOR THE ASSESSEE FILED VARIOUS DEC ISIONS OF THE TRIBUNAL DEMONSTRATING THAT THE CONTINGENCY DISCL OSURE ARE ENTITLED TO REFUND AFTER DUE VERIFICATION. IN THIS REGARD, LD. COUNSEL FOR THE ASSESSEE FILED WRITTEN NOTE ON CONTINGENCY ISSUE STATING T HAT THE RETURN OF INCOME FILED BY THE ASSESSEE CONSTITUTES A NOTIONAL UNDISC LOSED INCOME AS PART OF THE TOTAL INCOME. THE SAME SHOULD NOT BECOME AN IM PEDIMENT FOR ASSESSING THE INCOME OF THE ASSESSEE BASED ON THE P RINCIPLES RELATING TO THE REAL INCOME THEORY. ACCORDING TO HIM, THE INCO ME OFFERED BY THE ASSESSEE IN THE RETURN OF INCOME IS NOT SACROSANCT AND WHAT MATTERS IS THE AOS FINDING ON THE ASSESSED INCOME OF THE ASSE SSEE. THE ASSESSED INCOME CAN BE LOWER THAN THE RETURNED INCOME. RELY ING ON THE DECISION OF NAGPUR BENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS . SANMUKHDAS WADHWANI 85 ITD 734, SHRI R.S. ABHYANKAR, LD. COUNSEL FOR T HE ASSESSEE SUBMITTED THAT WHERE THE ASSESSEE HIMSELF RETURNED HIS UNDISCLOSED INCOME ON ADHOC BASIS WITHOUT GIVING AN Y BREAK-UP FOR THE SAME AND WHEN THE SUBSEQUENT WORKING SUBMITTED BY H IM REVEALS THAT THE UNDISCLOSED INCOME ACTUALLY ASSESSABLE IN THE H ANDS OF THE ASSESSEE IS LOWER THAN THE RETURNED INCOME, THE SAME HAS TO BE ASSESSED AT SUCH LOWER INCOME BASED ON THE CONCEPT OF REAL INCOME. ONLY CONDITION SPECIFIED IN THE SAID DECISION RELATES TO THE VERIF ICATION AND CORRECTNESS OF THE STATEMENTS SO SUBMITTED GIVING THE DETAILED WOR KING BEFORE THE AO. RELEVANT PORTION IS EXTRACTED AS UNDER : '12. IT IS OBSERVED THAT A SIMILAR ISSUE IN THE CON TEXT OF REGULAR ASSESSMENT AROSE FOR CONSIDERATION BEFORE THE HON'B LE DELHI HIGH COURT IN THE CASE OF CIT V . BHARAT GENERAL INSURANCE CO. LTD. [1971] 81 ITR 303 WHEREIN IT WAS HELD BY THEIR LORD SHIPS THAT EVEN IF AN ASSESSEE DECLARES AN INCOME IN THE RETUR N, THE ASSESSING OFFICER CANNOT ASSESS IT MERELY ON THAT B ASIS AND HE HAS TO CONSIDER ITS TAXABILITY IN THE LIGHT OF OTHE R CIRCUMSTANCES DE HORS THE ADMISSION MADE IN THE RETURN . IN THE CASE OF NARAYANAN V . GOPAL AIR 1960 SC 235 , THE HON ' BLE SUPREME COURT HAS HELD THAT AN ADMISSION IN THE RETURN IS NOT CONCLUSIVE A ND IT WOULD BE DECISIVE ONLY IF NOT SUBSEQUENTLY WITHDRAWN OR PROV ED TO BE ERRONEOUS . IT IS WELL- ESTABLISHED THAT THE OBJECT OF AN ASSES SMENT IS TO DETERMINE THE CORRECT INCOME AND CONSEQUENTLY THE CORRECT TAX LIABILITY . IN OUR OPINION , THIS SETTLED POSITION EQUALLY HOLDS GOOD IN THE MATTER OF BLOCK ASSESSMENT ALSO SINCE THE SCOPE OF UNDISCLOSED INCOME ASSESSABLE IN THE BLOCK ASSESSMENT IS SPECIF ICALLY PROVIDED AND THE PROCEDURE FOR DETERMINATION OF SUCH INCOME IS ALSO CLEARLY LAID DOWN . IN THESE CIRCUMSTANCES , ANY AMOUNT WHICH IS NOT ASSESSABLE AS UNDISCLOSED INCOME FOR THE BLOCK PERI OD CANNOT BE ASSESSED AS SUCH MERELY FOR THE REASON THAT THE SAM E WAS DECLARED BY THE ASSESSEE IN THE RETURN FOR BLOCK PE RIOD AND THERE CANNOT BE SUCH ESTOPPEL AGAINST THE STATUTE . IT , THEREFORE , FOLLOWS THAT IF THE ASSESSEE COMMITS A PATENT MISTA KE OF FACT OR LAW WHILE FILING HIS RETURN OF UNDISCLOSED INCOME UNDER SECTION 158BC , HE CANNOT BE ASSESSED ON SUCH INCORRECT INCOME MERELY ON THE BASIS OF ADMISSION M ADE IN THE RETURN. 13. . . . . . . . .IN SUCH CIRCUMSTANCES, WHEN A DE TAILED WORKING MADE SUBSEQUENTLY BY THE ASSESSEE OF UNDISCLOSED IN COME REVEALED THAT THE TOTAL UNDISCLOSED INCOME ASSESSAB LE IN THE HANDS OF THE ASSESSEE WAS LOWER THAN THE RETURNED I NCOME, WE 12 ARE OF THE OPINION THAT THE SAME HAS TO BE ASSESSED AT SUCH LOWER AMOUNT GOING BY THE CONCEPT OF REAL INCOME ESPECIAL LY WHEN THE SAID WORKING WAS VERIFIED AND FOUND TO BE CORRECT B Y THE ASSESSING OFFICER. 36. SIMILAR PROPOSITION WAS AFFIRMED BY THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. BHARAT GENERAL INSURANCE COM PANY LTD. 81 ITR 303 WHEREIN IT IS HELD THAT WHEN THE ASSESSEE DECLA RES INCOME IN THE RETURN, THE AO CANNOT ASSESS MERELY ON THAT BASIS A ND HAS TO CONSIDER ITS LIABILITY IN THE LIGHT OF OTHER CIRCUMSTANCES DE HO RS THE ADMISSION MADE BY HIM IN THE RETURN. LD. COUNSEL FOR THE ASSESSEE AL SO REFERRED TO THE OTHER JUDGMENT IN THE CASE OF ESTER INDUSTRIES LTD. VS. C IT 316 ITR 260 (DELHI). ACCORDING TO THIS JUDGMENT, SUO MOTO DISALLOWANCE L EADING TO INCREASED RETURNED INCOME CAN ALWAYS BE VERIFIED BY THE AO IN THE ASSESSMENT AND DECREASE THE RETURNED INCOME, EVEN IF IT FALLS BELO W THE AMOUNT OF TOTAL INCOME RETURNED BY THE ASSESSEE IN THE RETURN OF IN COME. IN THIS CASE, THE HONBLE HIGH COURT RESTORED THE MATTER FOR SUCH VER IFICATION. RELEVANT PORTION OF THE JUDGMENT ARE EXTRACTED AS UNDER : '11 . ACCORDING TO US, THE TRIBUNAL OUGHT TO HAVE EXAMINE D THE ISSUE AS TO WHETHER THE FACT THAT ASSESSEE HAD MADE AN ADMISSION WITH RESPECT TO AN ADDITION / DISALLOWANCE IN ITS ORIGINAL RETURN OR IN THE REVISED RETURN WOULD IPSO FACTO BAR THE ASSESSEE FROM CLAIMING AN EXPENSE OR DISPUTING AN AD DITION IF IT IS OTHERWISE PERMISSIBLE UNDER LAW . THIS IS SO ESPECIALLY IN VIEW OF THE CIRCUMSTANCES , THAT THE ASSESSING OFFICER WHILE MAKING THE ADDITIONS /DISALLOWANCES DID NOT CALL UPON THE ASSE SSEE TO FURNISH ANY EXPLANATION . THE UPSHOT OF THE SUBMISSION MADE BY THE LEARNED COUNSEL FOR THE ASSESSEE, IS THAT , HAD THE ASSESSEE BEEN GIVEN AN OPPORTUNITY BY THE ASSESSING OFFICER IT CO ULD HAVE DEMONSTRATED THAT NO ADDITIONS OR DISALLOWANCES WER E CALLED FOR , IN VIEW OF THE BINDING PRECEDENTS OF COURTS AND/OR TRIBUNAL IN RESPECT OF EACH OF THE ADDITION/DISALLOWANCE . THE OBSERVATIONS MADE IN THE TAX AUDIT REPORT COULD NOT HAVE FORMED THE BASIS OF ADDITIONS / ALLOWANCES BY THE ASSESSING OFFICER . ON THIS ASPECT OF THE MATTER THE OBSERVATIONS IN THE JUDGMENT OF THE SUPREME COURT IN THE CASE OF PULLANGODE RUBBER PRODUCE CO. LTD. V . STATE OF KERALA [1973] 91 ITR 18 BEING APPOSITE ARE EXTRACTE D HEREINBELOW: IT IS NO DOUBT TRUE THAT ENTRIES IN THE ACCOUNT BOO KS OF THE ASSESSEE AMOUNT TO AN ADMISSION THAT THE AMOUNT IN QUESTION WAS LAID OUT OR EXPENDED FOR THE CULTIVATION , UPKEEP OR MAINTENANCE OF IMMATURE PLANTS FROM WHICH NO AGRICULTURAL INCOME WA S DERIVED DURING THE PREVIOUS YEAR . AN ADMISSION IS AN EXTREMELY IMPORTANT PIECE OF EVIDENCE BUT IT CANNOT BE SAID THAT IT IS CONCLUSIVE . IT IS OPEN TO THE PERSON WHO MADE THE ADMISSION TO SHOW T HAT IT IS INCORRECT . (P . 20) . 11 . 1 WE FIND THAT THE TRIBUNAL INSTEAD OF EXAMINING TH E MATTER FROM THIS ANGLE HAS REPEATED THE ORDER PASSED IN TH E FIRST ROUND WITHOUT DUE APPLICATION OF MIND TO THE ISSUES WHICH CALLED FOR ADJUDICATION. 37. THE NAGPUR BENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS. SANMUKHDAS WADHWANI (SUPRA) HELD CATEGORICALLY THAT THE INCOME NOT ASSESSABLE AS UNDISCLOSED INCOME OF THE ASSESSEE CA NNOT BE ASSESSED AS SUCH MERELY BECAUSE ASSESSEE DECLARED THE SAME THR OUGH A STATEMENT IN SEARCH ACTION. ADMISSION MADE BY THE ASSESSEE I N THE RETURN OF INCOME IS NO SACROSANCT. AO IS UNDER STATUTORY OBL IGATION TO MAKE 13 ASSESSMENT OF ASSESSEE BASED ON THE FACTS OF CASE A ND AS PER THE PROVISIONS OF ACT. IN OTHER WORDS, COMING TO THE F ACTS OF THE ASSESSEE, IF THE SAID SUM OF RS. 1 CRORE IS NOT ASSESSABLE TO TA X AS INCOME OF THE ASSESSEE, THE SAME OUGHT NOT BE ASSESSED EVEN IF TH E ASSESSED INCOME COMES TO A LOWER FIGURE QUA THE RETURNED INCOME. 38. WE HAVE CONSIDERED THE ABOVE LEGAL SCOPE OF THE PRINCIPLE RELATING TO THE LOWER FIGURE OF ASSESSED INCOME QUA THE RETU RNED INCOME. FURTHER, WE HAVE HEARD THE PARTIES AND PERUSED THE WRITTEN S UBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE. FURTHER ALSO, WE PER USED THE REASONING GIVEN BY THE CIT(A) WHILE DISMISSING THE CLAIM OF T HE ASSESSEE. WE FIND THE CONTENTS OF PARA NO.12 OF HIS ORDER ARE RELEVAN T. FOR THE SAKE OF COMPLETENESS OF THIS ORDER, WE PROCEED TO EXTRACT P ARA NO.13.2 OF THE CIT(A) : 13.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . TO SUM UP, THE FRESH CLAIM MADE BY THE APPELLANT DURING THE PRESENT PROCEEDING S THAT SUCH INCOME OF RS.1,00,00,000/- MAY BE EXCLUDED FROM THE TOTAL INCOME ASSESSED BY THE ASSESSING OFFICER AS NO DISCREPANCI ES WERE FOUND DURING THE ASSESSMENT PROCEEDINGS CANNOT BE ACCEPTE D AS THE ADDITIONAL INCOME WAS OFFERED VOLUNTARILY IN THE RE TURN OF INCOME. THE ALTERNATE CLAIM OF THE APPELLANT FOR SET OFF OF SUCH CONTINGENCIES AGAINST OTHER STATUTORY DISALLOWANCE MADE BY THE AO ALSO CANNOT BE ACCEPTED AS DISCUSSED ABOVE. GRO UND OF APPEAL NO.8 STANDS REJECTED. THE CIT(A) DENIED THE CLAIM OF THE ASSESSEE IGNORIN G THE SETTLED LEGAL PROPOSITIONS ON THE TOPIC. THE REASONS GIVEN ABOVE BY THE CIT(A) ARE ARTIFICIAL AND NOT SUPPORTED BY THE LEGAL PRECEDENT S. 39. THE CBDT ISSUED A CIRCULAR NO.549 DATED 31-10-1 989 IMPOSING FETTERS ON THE AOS FOR NOT DETERMINING THE ASSESSED INCOME AT A LOWER FIGURE THAN THE RETURNED INCOME. THE SAID CIRCULAR WAS HELD ULTRA VIRES BY THE HIGHER JUDICIARY IN THE CASE OF GUJARAT GAS COMPANY LTD. (SUPRA). INFACT, IT IS THE DUTY OF THE AO TO MAKE AN ASSESSM ENT BASING ON THE FACTS OF THE CASE AND AS PER THE PROVISIONS OF THE I.T. A CT. IN THE CASE OF SHELLY PRODUCTS (SUPRA), THE HONBLE APEX COURT HELD THAT THE ADVANCE TAX/SELF ASSESSMENT TAX PAID AS PART OF AN ABUNDANT CAUTION ARE REQUIRED TO BE REFUNDED ON VERIFICATION OF THE CLAIM OF THE ASSESS EE. THE NAGPUR COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF DC IT VS. SANMUKHDAS WADHWANI (SUPRA) HELD THAT THE ASSESSED INCOME CAN BE LOWER QUA THE RETURNED INCOME OF THE ASSESSEE. FURTHER, THE TRIB UNAL HELD IN THIS CASE, ANY AMOUNT WHICH IS NOT ASSESSABLE AS UNDISCLOSED I NCOME OF THE ASSESSEE CANNOT BE ASSESSED MERELY FOR THE REASON A SSESSEE DECLARED IN THE RETURN OF INCOME. THERE CANNOT BE SUCH ESTOPPE LS AGAINST THE STATUTE IF THE ASSESSEE ITSELF FINDS A PATENT MISTAKE OF FA CT WHILE FILING THE RETURN OF INCOME ASSESSEE CANNOT BE ASSESSED ON SUCH INCO RRECT INCOME MERELY ON THE BASIS OF ADMISSION MADE BY HIM IN THE RETURN OF INCOME. 40. IN THE INSTANT CASE, CONSIDERING THE ABOVE SETT LED LEGAL PROPOSITIONS, WE PROCEED TO EXAMINE AVAILABILITY OF FACTS RELATING TO THE PRESENT CASE. IN THE RETURN OF INCOME, ASSESSEE ME RELY OFFERED AN AMOUNT OF RS.1 CRORE TOWARDS CONTINGENCY. MEANING THEREBY THAT INCASE THE AO MAKES CERTAIN ADDITIONS BASING ON SAME FACTS OR LEG AL ISSUES, THE SAID DISCLOSURE AMOUNT OF RS.1 CRORE SHOULD BE CONSIDERE D FOR SET OFF/ADJUSTMENT ETC. IN CASE AO FAILED TO MAKE SUCH ADDITIONS, THE SAID AMOUNT OF RS.1 CRORE IS NOT REQUIRED TO BE ASSESSED AS INCOME OF THE ASSESSEE. IT IS AN ADMITTED FACT THAT THE AO MADE ADDITION U/S.14A OF THE ACT IN THE ASSESSMENT U/S.153A OF THE ACT IN TH E ABSENCE OF ANY INCRIMINATING MATERIAL. THIS ADDITION IS MADE OVER AND ABOVE THE SAID CONTINGENCY AMOUNT OF RS.1 CRORE. HOWEVER, WE FIND WHILE DISCUSSING IN THE PRECEDING PARAGRAPH THIS DISALLOWANCE U/S.14A I S UNSUSTAINABLE IN 14 THIS ASSESSMENT AS THE SAME DOES NOT HAVE STRENGTH OF ANY INCRIMINATING MATERIAL. IN OTHER WORDS, THE AO MADE AN UNSUSTAIN ABLE ADDITION U/S.14A OF THE ACT AND TAXED THE SAID AMOUNT OF RS. 1 CRORE-CONTINGENCY INCOME WITHOUT MAKING ADJUSTMENT THE SAID AMOUNT OF RS.1 CRORE. IN ANY CASE, WE DELETED SAID DISALLOWANCE U/S.14A OF THE A CT. THEREFORE, THE QUESTION OF ADJUSTMENT IS ONLY AN ACADEMIC EXERCISE . IGNORING THE SAME, WE NOW HAVE TO DECIDE THAT THE SAID AMOUNT OF RS. 1 CRORE IS ASSESSABLE TO TAX IN THE LIGHT OF THE ABOVE LEGAL SCOPE RELATI NG TO THIS ADDITION. 41. THE AO HAS NOT BROUGHT ANY ISSUE OR FACTS RELAT ING TO THE UNDISCLOSED INCOME SPECIFIC TO THE SAID SUM OF RS.1 CRORE. IN SUCH CIRCUMSTANCES, WE ARE OF THE OPINION THAT THE DECIS ION OF THE NAGPUR BENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS. SANMU KHDAS WADHWANI (SUPRA) BECOMES RELEVANT TO THE FACTS OF THE PRESEN T CASE. AS SUCH, WE PROCEED TO DISMISS THE VOLUNTARY-CENTRIC REASONING GIVEN BY THE CIT(A) FOR DENYING THE CLAIM OF THE ASSESSEE REGARDING THE IS SUE OF TAXATION OF THE SAID AMOUNT OF RS.1 CRORE. CONSIDERING THE ABOVE, WE ARE OF THE OPINION THAT THE AO IS DIRECTED TO VERIFY THE WORKING OF TO TAL UNDISCLOSED INCOME ASSESSABLE IN THE HANDS OF THE ASSESSEE GOING BY TH E CONCEPT OF REAL INCOME. HE SHALL GRANT REASONABLE OPPORTUNITY OF B EING HEARD TO THE ASSESSEE. AO IS DIRECTED TO APPLY THE RATIO LAID D OWN BY THE ABOVE REFERRED JUDGMENTS IN GENERAL AND THE RATIO LAID DO WN BY THE NAGPUR BENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS. SANMU KHDAS WADHWANI (SUPRA) WHILE ARRIVING AT THE ASSESSED INCOME OF TH E ASSESSEE. AO SHALL NOT CONSIDER THE SO-CALLED VOLUNTARY DISCLOSURE OF THE SAID AMOUNT OF RS. 1 CRORE AS THE SAME DOES NOT AMOUNT TO ANY VOLUNTAR Y DISCLOSURE IN A REAL SENSE. HAD IT BEEN REALLY VOLUNTARY, THE ASSESSEE WOULD NOT HAVE RAISED THIS ISSUE BEFORE US. IT IS THE REQUIREMENT OF THE STATUTE THAT THE AO SHALL MAKE ASSESSMENT STRICTLY AS PER THE PROVISIONS OF T HE LAW AND DETERMINE THE ASSESSED INCOME ACCORDINGLY. FOR APPLYING THE SAID LEGAL PRINCIPLES AS WELL AS THE JUDGMENTS AND THE ORDER OF THE NAGPU R BENCH OF THE TRIBUNAL, WE REMAND THIS ISSUE TO THE FILE OF THE A O FOR THE LIMITED PURPOSE OF ADJUDICATION OF THE ISSUE RELATING TO TA XABILITY OF THE CONTINGENCY AMOUNT OF RS.1 CRORE. ACCORDINGLY, THI S GROUND BY THE ASSESSEE IS ALLOWED PRO TANTO. 13. FROM THE ABOVE, IT IS EVIDENT THAT THE ONUS IS ON TH E AO TO ESTABLISH THE OMISSIONS AND COMMISSIONS BEFORE HE PROCEEDS TO TAX THE SAID BUFFER DISCLOSURE OF RS.50 LAKHS. AS SUCH, AO DID NOT EX AMINE THIS ASPECT OF THE ISSUE FROM THIS POINT OF VIEW. CIT(A)/AO ARE OF THE OPINION THAT THE ASSESSED INCOME MAY NOT BE LESS THAN THE RE TURNED INCOME. AO MECHANICALLY TAXED THE SAME RELYING ON THE ADMISSION ON THE SWORN STATEMENTS. THE MAIN ARGUMENTS RAISED BY THE ASSESSEE S COUNSEL ARE REJECTED AND THE ALTERNATE PRAYER FOR REMANDING THE ISS UE TO THE FILE OF AO IS CONSIDERED FAVOURABLY. THEREFORE, WITH SIMILAR DIRECTION S TO THE AO, WE REMAND THE ISSUE TO THE FILE OF AO. ACCORDINGLY, TH IS ISSUE IS ADJUDICATED PRO TANTO. 15 14. IN THE RESULT, APPEAL OF THE REVENUE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO.570/PUN/2015 BY ASSESSEE A.Y. 2011-12 15. GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER : 1. THE LD. CIT(A)-12 , PUNE ERRED IN LAW AND ON FACT S IN AFFIRM I NG ADDIT I ON OF RS . 1,61,94 , 464 , ALLEGING THAT PAYMENT OF BROKERAGE / COMMISSION RELATING T O ACQUIS I TION OF LAND I N AMBI & KADVE VILLAGES , MERELY BASED ON INCORRECT STATEMENT GIVEN BY MR . BIRADAR (THE THEN L IASIONING MANAGER OF THE APPELLANT) . THE LEARNED CIT(A)-12 , PU N E AND LEARNED AO OUGHT TO HAVE APPREC I ATED THAT THE CLAIM OF SAID ALLEGED BROKERAGE / COMMISSION PAYMENT CONFLICTS DI RECTLY WITH THE RELEVANT PAPERS FOUND DURI N G THE COURSE OF SEARCH U/S 132 OF THE ITA, 1961 . 2. THE LD. CIT(A)-12 , PUNE AND LEARNED AO FURTHER ERRED IN LAW AND FACTS IN KEEPING TOO MUCH RE L IANCE ON T HE INCORRECT I NFORMATION PROVIDED BY MR . BIRADAR DUR I NG THE COURSE OF SEARCH AND ESPECIALLY DRAWING CONCLUSIONS THEREON WITHOUT PROVID I NG OPPORTUNITY OF HIS CROSS EXAMINATION TO THE APPELLANT COMPANY . 3. THE LD. CIT(A)-12 , PUNE AND LEARNED AO ERRED IN PLACING RELIANCE ON I NCORRECT STATEMENT OF MR . B I RADAR RECORDED DURING THE COURSE OF SEARCH , WITHOUT CONSIDER I NG THE STATEMENT OF MR . SHIVAJI R AO JADHAV , MD OF THE APPELLANT COMPANY WHICH WAS ALSO RECORDED DURING THE COURSE OF SEARCH. 4. THE LD. CIT(A)-12, P U NE ERRED I N LAW AND ON FACTS I N AFFIRMING ADDIT I ON OF RS . 1,61 , 94 , 464/ - MADE BY L EARNED AO ON THE PRESUMPT I ON THAT UNPAID COMM I SSION RELATED TO THE ACQUISITION OF LAND IN AMBI & KADVE VILLAGES HAVE BEEN PAID IN CAS H AND HAS NOT BEEN ACCOUNTED F OR IN THE BOOKS OF ACCOUNTS I RRESPECTIVE OF THE FACT THAT ONLY RS. 39,84 , 474/ - WAS PAID SUBSEQUENTLY BY CHEQUE AND AS PER AGREEMENT DATED 22/02/2013 . AT THE OUTSET IT IS BROUGHT TO OUR NOTICE THAT THER E IS DELAY OF 16 DAYS IN FILING THE APPEAL. ON CONSIDERING THE A FFIDAVIT AND THE CONTENTS THEREIN, WE FIND THE DELAY IS CONDONABLE C ONSIDERING THE SMALL DELAY OF ONLY 16 DAYS AND ADMIT THE APPEAL F OR ADJUDICATION. 16. BRIEF FACTS INCLUDE THAT THE SEARCH TEAM NOTICED DUR ING THE SEARCH & SEIZURE ACTION THAT THE ASSESSEE PURCHASED 4 72 ACRES OF LAND AT VILLAGE AMBI AND KADVE. THE PURCHASES WERE DONE INVOLV ING THE BROKERS. THE SEARCH TEAM SEIZED SOME DOCUMENTS, COPIES OF WHICH ARE PLACED AT PAGES 7, 19, 20 OF THE PAPER BOOK NO.1 WHICH S TANDS TRANSLATED INTO ENGLISH WHICH ARE PLACED AT PAGES 2 TO 45 OF THE PAPER 16 BOOK NO.2. DURING THE SEARCH ACTION, ON THESE PAPERS, TH ERE WAS RECORDING OF SWORN STATEMENT FROM MR.BIRADAR, THE MANAGE R, THE INCHARGE OF THE LAND ACQUISITION. ACCORDING TO MR. BIRADAR , THE ASSESSEE MADE TOTAL CASH PAYMENTS AMOUNTING TO RS.3,54 ,48,750/- IN CONNECTION WITH THE PURCHASE OF THE SAID LANDS OF 472 ACR ES OUTSIDE THE BOOKS OF ACCOUNT. THEREAFTER, THE STATEMENT OF MR. SHIVAJ IRAO B. JADHAV, MD OF THE COMPANY WAS ALSO RECORDED. WHEN THE A BOVE STATEMENT OF MR.BIRADAR WAS CONFRONTED, MR. SHIVAJIRAO B. JADHAV DISAGREED WITH THE ASSERTION MADE IN THE STATEMENT OF MR . BIRADAR. HOWEVER, MR. SHIVAJIRAO B. JADHAV AGREED THAT THE TOTAL UN ACCOUNTED CASH PAYMENTS WORKS OUT TO RS.1,82,54,286/- ONLY AND NO T RS.3,54,48,750/-. CONSIDERING THE DIFFERENCES, AN AMOUNT OF RS.1,61,94,464/- WAS ADDED IN THE ASSESSMENT. THE DETAILS ARE SUMMARISED AS UNDER : A. CASH PAYMENTS AS PER MR. BIRADARS STATEMENT - RS.3 ,54,48,750/- B. LESS : CASH PAYMENT ADMITTED BY MR. JADHAV -RS.1,82 ,54,286/- C. LESS : CHQ PAYMENT AS OBSERVED IN SEIZED PAPERS-RS. 10,00,000/- D. BALANCE (I.E. AMOUNT OF ADDITION) - RS.1,61,94,46 4/- 17. DURING THE FIRST APPELLATE PROCEEDINGS THE ASSESSEE C OULD NOT IMPROVE HIS CASE. THEREFORE, THE ASSESSEE IS IN APPEAL BEFO RE THE TRIBUNAL WITH THE GROUNDS RAISED ABOVE. 18. BEFORE US, ON THIS ISSUE, LD. COUNSEL FOR THE ASSESSEE A RGUED STATING THAT THE ENTIRE AMOUNT NEEDS TO BE DELETED AS THE SAID ADDITION WAS MADE AT THE BACK OF THE ASSESSEE WITHOUT GRANTING ANY OPPORTUNITY TO THE ASSESSEE TO REBUT THE SAME. REFERRING TO THE S TATEMENT GIVEN BY MR. BIRADAR, ASSESSEE SUBMITTED THAT THE STATEMENT DATE D 09-09-2010 IS NOT SACROSANCT AS THE SAME WAS NOT PUT TO CROSS E XAMINATION BY MR. SHIVAJIRAO B. JADHAV OR ANY OTHER CONCERNED PERSON BEFOR E ADDITION IS 17 MADE. ASKING FOR DELETION OF THE SAID ADDITION FULLY, LD. COUNS EL RELIED ON THE FOLLOWING JUDGMENTS/DECISIONS : A. ANDAMAN TIMBER INDUSTRIES VS. CIT - CIVIL APPEAL NO . 4228/2006, DATED 02-09-2015 B. ITO VS. M. PIRAI CHOODI 334 ITR 262 (SC) C. ANITA AGARWAL VS. ITO ITA NO.2622/PN/2016 19. LD. COUNSEL SUBMITTED THAT THE ENTIRE ADDITION MADE B Y THE AO ON THIS ISSUE SHOULD BE DELETED. FURTHER REFERRING TO SEIZ ED PAPERS, LD. COUNSEL SUBMITTED THAT THE PAYMENTS OF CASH MADE TO T HE FARMERS FOR BUYING 472 ACRES ARE EVIDENCED BY THE VOUCHERS AND TH E SAME AMOUNTS FOR ONLY RS.1,82,54,286/- AND NO EVIDENCE WHATSOEVER IS AV AILABLE IN SUPPORT OF THE PAYMENTS OF CASH OF RS.1,61,94,464/-. REFERR ING TO PAGES 42, 44 OF PAPER BOOK NO.2 AND PAGE 20 OF PAPER BO OK NO.1, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE ARE CONT RARY FACTS IN WHICH CASE THESE DOCUMENTS CONSTITUTES DUMB DOCUMENTS . THEREFORE, THE ADDITION IS ILLEGAL. HE ALSO MENTIONED THAT THE AOS OB SERVATIONS ARE CONFUSING AND THE ADDITIONS MADE ON SURMISES ARE NOT SUS TAINABLE. ASSESSEE MADE FOLLOWING PRAYER IN THE WRITTEN SUBMISSIONS PRAYER : APPELLANT SUBMITS, ENTIRE PROCESS OF MAKI NG ADDITION OF RS.1,61,94,464/- WAS AN IMAGINARY EXERCISE OF THE L EARNED I.T. AUTHORITIES WHICH WAS CONCLUDED IN AN UNFAIR MANNER , I.E. WITHOUT RECORDING APPELLANTS SAY ON THE MATTER AND WITHOUT GRANTING CROSS OF MR. BIRADAR. IN ANY CASE, THE SEIZED DOCUMENTS THE MSELVES DEMONSTRATE BEYOND DOUBT, THE FOLLY IN MAKING THE SAID ADDITION . AS SUCH, THE HONOURABLE ITAT MAY PLEASE DELETE THE SAID ADDITION AND ALLOW APPELLANTS APPEAL. 20. ELABORATING THE SAME, LD. COUNSEL BROUGHT OUR ATTENTIO N TO THE WRITTEN AGREEMENTS SIGNED BETWEEN THE ASSESSEE AND TH E BROKER/AGENTS DATED 22-02-2013 (SUBSEQUENT TO THE SEARCH ACTION), AS SESSEE SUBMITTED THAT UNPAID BROKERAGE IS ONLY RS.39,84,474/-. H E ALSO GAVE FOLLOWING SUBMISSIONS IN THIS REGARD GIVING COMMISSION DETAILS : 18 E. TOTAL COMMISSION COMES TO (RS.23,000 X 495 ACRE = RS.1,13,85,000/-) (I.E. ONE CRORE THIRTEEN LAKH EIG HTY FIVE THOUSAND ONLY). OUT OF ABOVE, RS.74,00,526/- (I.E. SEVENTY FOUR LAKHS FIVE HUNDRED AND TWENTY SIX ONLY) HAS BEEN PAID IN CASH TO PARTY OF THE SECOND PART FOR INCREASED PURCHASE RATE BY FARMERS AND OTHER EXPENSES FROM TIME TO TIME. BALANCE RS.39,84,474/- IS TO BE PAID IN CHEQUE DESCRIBED AS FOLLOWS : SR.NO. NAME COMMISSION AMOUNT 1 SHRI NIVANGUNE LAHY NIVRUTTI 15,00,000 2 SHRI SATPUTE SHRIHARI GENU 12,42,237 3 SHRI AMRALE BHANUDAS BALU 12,42,237 TOTAL 39,84,474 21. FURTHER, BRINGING OUR ATTENTION TO PAGE 42, LD. COUNSE L SUBMITTED THAT ASSESSEE PURCHASED AGRICULTURAL LANDS OF 472 ACRES AND 26R FOR A SUM OF RS.7,08,97,500 @ RS.1.50 LAKHS PER ACRE ON 20-07-201 0. THE TOTAL EXPENDITURE INCURRED WORKS OUT TO RS.3,67,71,120/-. FOR ACQUIRING THE ABOVE, 189 HECTARES OF LAND ASSESSEE PA ID CASH OF RS. 1,05,10,625/- TO THE FARMERS AND CASH OF RS.74,00,526/- WAS PAID TO THE BROKERS OUT OF PAYABLE AMOUNT OF RS.2,36,32,500/- RE MAINING PAYABLE TO THE WORKS AS PER PAGE 43 WORKS OUT TO RS.1 ,62,31,974/-. AS PER PAGE 42 AND 43 OF THE PAPER BOOK NO.2, THE TOTAL CA SH PAID WORKS OUT TO RS.1,82,54,286/- AND THE REMAINING AMOUNT PAYABLE T O THE BROKERS WORKS OUT TO RS.1,62,31,974/-. FURTHER, BRINGING O UR ATTENTION TO PAGE 44 OF THE PAPER BOOK, LD. COUNSEL FOR THE ASSESS EE SUBMITTED THAT BROADLY THE ENTRIES ARE SIMILAR TO THE ONES AVAILABLE ON PAGE 42 AND 43 WITH MINOR DEVIATIONS. ACCORDING TO THESE PAPERS, TOTA L CASH INCURRED IS AROUND RS.1,92,67,027/- AND THE CASH REMAINING PAYABLE TO THE BROKERS WORKS OUT TO RS.1,52,31,974/-. THIS IS THE PO SITION AS ON 20-07-2010. THE DATE IS APPEARING ON THE 5 TH COLUMN OF THE PAPER PROVIDED IN PAGE 44 OF THE PAPER BOOK. 19 22. FROM THE ABOVE FACTS, IT IS THE SUMMARY OF THE ARGUM ENT OF LD. COUNSEL THAT THERE IS NO EVIDENCE FOR ENTIRE CASH PAYMEN T OF RS.2,36,32,500/- TO THE BROKERS. THEREFORE, THE ADDITION OF RS.1,61,94,464/- MADE BY THE AO IN THE ASSESSMENT IS UNSU STAINABLE AS THE SAME LACKS SUPPORT OF PROOF OF PAYMENT OF CASH B Y THE ASSESSEE TO THE BROKERS. FURTHER, HE SUBMITTED THAT THIS IS A CA SE WHERE ADDITIONS WERE MADE WITHOUT GRANTING OPPORTUNITY AS WELL A S THE CROSS- EXAMINATION BENEFIT TO THE ASSESSEE. FURTHER, THE STATEM ENT OF MR.BIRADAR WAS NOT CONFRONTED BY THE ASSESSEE BY WAY OF CROSS EXAMINATION. HE ALSO MENTIONED THAT THE MATTER CAN BE REMANDED TO THE FILE OF AO AND GRANT AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE ON THIS ISSUE AS PER THE SET PRINCIPLES OF NATURAL JUSTICE . FOR THIS PROPOSAL, ASSESSEES COUNSEL RELIED ON VARIOUS DECISIONS. 23. IN REPLY, LD DR FOR THE REVENUE RELIED HEAVILY ON TH E ORDERS OF THE AO AND THE CIT(A). HE ALSO RELIED ON SEIZED PAPERS PLACED AT PAGES 40 TO 45 OF THE PAPER BOOK NO.2 STATING THAT THE TRANSLATE D PAGES 19,20, 37, 39 AND 7 DEMONSTRATES THE FACT OF PAYABLE OF COMMISS ION TO THE BROKERS AMOUNTING TO RS.2,36,32,500/- AT THE FIXED RATE P ER ACRE. ASSESSEE HAS ALREADY PAID SUM OF RS.74,00,526/- IS EVIDENT FROM THE EXPRESSION CASH GIVEN AND AN AMOUNT OF RS.1,52,37,374/- WAS ALSO QUANTIFIED AS APPEARING WITH THE DESCRIPTION REMAINING (P AGE 45 OF THE PAPER BOOK NO.2) 24. LD. DR FOR THE REVENUE CONCLUDED BASED ON PAGE 43 A ND 45 THAT THE CASH PAYABLE IS RS.1,52,31,973/- AFTER GIVING CREDIT TO T HE PAYMENT OF CASH OF RS.74,00,526/- AND CHEQUE PAYMENTS OF RS.10 LAKHS. 25. ON THE ISSUE OF REQUEST OF CROSS EXAMINATION WITH REM ANDING, LD. DR FOR THE REVENUE SUBMITTED THAT THE SUPREME COURT J UDGMENT IN THE 20 CASE OF ANDAMAN TIMBER (SUPRA) IS ENTIRELY DIFFERENT FATS AND IS INAPPLICABLE TO THE FACTS OF THE PRESENT CASE. THIS IS THE CASE WHERE SEARCH AND SEIZURE ACTION U/S.132 WAS CONDUCTED AND DO CUMENTS ARE SEIZED. THE ONUS IS ON THE ASSESSEE TO DISCHARGE. REFERR ING TO THE STATEMENT OF MR. BIRADAR, LD. DR FOR THE REVENUE SUBMITTED THAT THE SAID STATEMENT CORROBORATES TO THE FINDINGS OF THE SEIZED DOCUMENTS AND THE CONTENTS MENTIONED ON THE SEIZED DOCUMENTS AND TH E PAGES 42 TO 45 ARE RELEVANT. 26. WE HEARD BOTH THE PARTIES ON THIS ISSUE OF ADDITION OF RS. 1,61,94,464/- AND PERUSED THE ORDERS OF THE REVENUE AS WELL AS THE OTHER DOCUMENTS PLACED BEFORE US. THE FOLLOWING ISSUES AR ISE FROM THE SAME : (1) IF THE SEIZED PAPERS INDICATE UNPAID COMMISSION OF RS.1,61,94,464/- TO THE BROKERS THAT REQUIRES ADDITION IN T HE ASSESSMENT. (2) IS THERE ANY VIOLATION TO THE PRINCIPLES OF NATURAL JUST ICE BY NOT PROVIDING THE OPPORTUNITY OF CROSS EXAMINATION OF MR. B IRADAR TO MR. SHIVAJIRAO B. JADHAV. 27. REGARDING THE FIRST ISSUE, WE PERUSED THE SEIZED PAPE RS WHICH ARE TRANSLATED COPIES PLACED IN THE PAPER BOOK AND FIND THE S AME ARE RELEVANT FOR EXTRACTION. ACCORDINGLY, THE SAME IS EXTRACT ED HERE AS UNDER : A EXTRACT FROM PAGE 42 OF THE PAPER BOOK : MAUJE AMBI, TAL HAVELI, DISTRICT PUNE DESCRIPTION OF AGRICULTURAL LAND IS AS UNDER PURCHASE OF LAND AMBI - 185 HECTORS 51R (464 ACRES 17R) KADVE - 3 HECTORS 29 R (8 ACRES 9 R) -------------------------------------------- TOTAL 189 HECTORS 6 R (472 ACRES 26R) 21 TOTAL AMOUNT - RS.7,08,97,500/- (472 ARES 26 R X RS.1,50,000/- ACRES) I. CHEQUE AMBI + KADVE SR NO NAME OF THE PURCHASER MEASURE OF LAND HEC. R. PAU. TOTAL EXPEN - DITURES EXPENDITURES UPTO DATE 20.07.2010 REMAINING 1 AMIT JADHAV 16=03=54 31,20,035 31,20,035 0 2 M S JADHAV 00=89=66 1,76,525 1,76,525 0 3 SH RADDHA ENERGY 32=08=60 61,76,167 59,94,917 1,81,250 4 SACHIN GAIKWAD 20=46=83 40,81,327 39,98,077 83,250 5 MADHUKAR JADHAV 21=88=09 42,49,100 42,49,100 0 6 DNYANESHWAR DESHMUKH 21=78=92 42,89,384 42,89,384 0 7 SUNDER RAO DESHMUKH 21=31=92 42,03,160 42, 03,160 0 8 K G GAIKWAD 21=90=17 42,40,817 42,40,817 0 9 B B JADHAV 22=29=00 43,91,877 43,91,877 0 10 S V KATLE 10=40=00 28,35,228 21,07,228 7,28,000 TOTAL 189=06=71 3,77,63,620 3,67,71,120 9,92,500 II. CHEQUE OTHER EXPENSES AND DEVELOPMENT EXPENSES A) DEVELOPMENT EXPENSES RS.14,13,749 ---------------- TOTAL - RS.14,13,749 B EXTRACT FROM PAGE 43 OF THE PAPER BOOK : III. CASH FARMERS AND COMMISSION A) FARMERS EXPENSES - RS.1,05,10,625 - (79,28,750 + 21,81,875) B) COMMISSION RS.74,00,526 - (TOTAL 2,36,32,500) (PAID 74,00, 526) ----------------------- -------------- (REMAINING 1,62,31,974) C) OTHER EXPENSES RS,3,43,135 (REGISTRATIO N, ZONE ETC) ---------------------- TOTAL RS.1,82,54,286 ---------------------- C- EXTRACT FROM PAGE 44 OF THE PAPER BOOK : MAUJE AMBI, TAL HAVELI, DISTRICT PUNE DESCRIPTION OF AGRICULTURAL LAND IS AS UNDER PURCHASE OF LAND AMBI - 185 HECTORS 51R (464 ACRES 17R) KADVE - 3 HECTORS 29 R (8 ACRES 9 R) -------------------------------------------- TOTAL 189 HECTORS 6 R (472 ACRES 26R) TOTAL AMOUNT - RS.7,08,97,500/- (472 ACRES 26 R X R S.1,50,000/- ACRES) I. CHEQUE AMBI + KADVE SR NO NAME OF THE PURCHASER MEASURE OF LAND HEC. R. PAU. TOTAL EXPEN - DITURES EXPENDITURES UPTO DATE 20.07.2010 REMAINING 1 AMIT JADHAV 16=03=54 31,20,035 31,20,035 0 22 2 M S JADHAV 00=89=66 1,76,525 1,76,525 0 3 SHRADDHA ENERGY 32=08=60 61,76,167 59,94,917 1,81,250 4 SACHIN GAIKWAD 20=46=83 40,81,327 39,98,077 83,250 5 MADHUKAR JADHAV 21=88=09 42,49,100 42,49,100 0 6 DNYANESHWAR DESHMUKH 21=78=92 42,89,384 42,89,38 4 0 7 SUNDER RAO DESHMUKH 21=31=92 42,03,160 42,03,160 0 8 K G GAIKWAD 21=90=17 42,40,817 42,40,817 0 9 B B JADHAV 22=29=00 43,91,877 43,91,877 0 10 S V KATLE 10=40=00 28,35,228 21,07,228 7,28,000 TOTAL 189=06=71 3,77,63,620 3,67,71,120 9,92,500 II. CHEQUE OTHER EXPENSES AND DEVELOPMENT EXPENSES A) DEVELOPMENT EXPENSES RS.14,13,749 B) AGREEMENT TO SALE SHRADDHA - RS.11,15,125 C) AGREEMENT TO SALE AMIT - RS. 50,000 --------------------- TOTAL - RS.25,78,874 --------------------- D-EXTRACT FROM PAGE 45 OF THE PAPER BOOK : III. CASH FARMERS AND COMMISSION D) FARMERS EXPENSES - RS.1,05,10,625 - (79,28,750 + 21,81,875) E) COMMISSION RS.84,00,526 - (TOTAL 2,36,32,500) (CASH GIVEN 74,00,526) (CHEQUE 10,00,000) -------------------------------------- (REMAINING 1,52,31,974) C) OTHER EXPENSES RS,5,55,876 (REGISTRATIO N, ZONE ETC) ---------------------- TOTAL RS.1,92,67,027 ---------------------- SUMMARY - VALUE OF LAND - RS.7,08,97,500 (FARMERS EXPE NSES + COMMISSION) - STAMP DUTY AND OTHER RS.17,42,995 - DEVELOPMENT EXPENSES RS.14,13,749 - AGREEMENT TO SALE (SHRADDHA + AMIT) RS.11,65,125 - OTHER EXPENSES - RS.5,55,876 - THE ABOVE DOCUMENTS SUGGEST THAT UNDISPUTEDLY THERE IS CASH PAYMENT TO THE BROKERS FOR LAND PURCHASE. THE PAYABLE TOTAL SUM OF RS.2,36,32,500/- IS THE UNDISPUTED FIGURE. PAYMENT OF CASH OF RS.74,00,526/- IS ALSO UNIFORMLY MENTIONED IN ALL THESE SEIZED PAPERS REPEATEDLY. AFTER CONSIDERING THE CHEQUE PAYMENT OF RS.1 0 LAKHS, THE REMAINING CASH PAYABLE OF RS.1,52,31,976/- IS ALSO EVIDENT FR OM THE PAGES OF THE PAPER BOOK. WHETHER THE SAME IS PAID SUBS EQUENTLY OR NOT IS A MATTER OF DEBATE. ASSESSEES COUNSEL ARGUES THAT THE SAID AMOUNT WAS NOT PAID BY THE ASSESSEE IN VIEW OF CHANGE IN THE TE RMS AND 23 CONDITIONS RELATING TO THE PAYMENT OF COMMISSION TO THE B ROKERS. IN SUPPORT OF THE SAME, ASSESSEE RELIED ON THE DOCUMENTS D ATED 22-02-2013 GRANTED AFTER THE DATE OF SEARCH, I.E. 08-09- 2010. THESE AGREEMENTS CAME INTO OPERATION AFTER THE LAPSE OF MORE T HAN 2 YEARS. REVENUE REJECTS THE SAME STATING THAT IT IS A CASE OF AN AFTERTHOUGHT AIMED AT DEFEATING THE EVIDENTIARY VALUE OF THE SEIZED PAPE RS. HOWEVER, IT IS A FACT THAT THE CONTENTS OF THIS AGREEMENT WERE N OT THOROUGHLY EXAMINED BY THE AO. BROKERS WERE NOT PUT TO TEST UNDE R THE PROVISIONS OF THE INCOME-TAX ACT. THE ONUS IS ON THE ASSESSEE T O DEMONSTRATE THAT THE CONTENTS ARE GENUINE. IT IS NOT MENTIONED AS TO WH ETHER THE CASH PAID AMOUNTING TO RS.74,00,526/- TO THE THREE BROKERS WA S OFFERED TO TAX IN THEIR RETURNS OR NOT. WE CANNOT APPRECIATE HOW THE PAYMENTS MADE TO THE BROKERS PRIOR TO SEARCH ARE THE FACTS AND THE REMAINING PAYABLE AMOUNT TO BROKERS AFTER THE SEARCH ACTION ARE NOT REAL. HOW AND WHY THE BROKERS BACKED OUT IN NOT CLAIMING THEIR DUE S. THERE IS NEED FOR THE ASSESSEE AND THE BROKERS TO DEMONSTRATE THE GENUINENESS OF THE SAID AGREEMENT DATED 22-02-2013. CONSIDERING ALL THESE FACTORS, THERE IS ENOUGH EVIDENCE TO ESTABLISH THAT THE CASH PAID TO THE BROKERS IN CONNECTION WITH THE PURCHASE OF LANDS APPEARS TO BE RS.2,36,32,500/-. AS SUCH, ASSESSEE HAS NOT DISCHARGED TH E ONUS WHICH IS CAST ON HIM AS IT IS A SEARCH ACTION U/S.132 OF T HE ACT AND THE SEIZED DOCUMENTS ARE OBTAINED FROM THE PREMISES OF THE ASSESSEE. 28. REGARDING THE SECOND ISSUE OF REMANDING THE ISSUE TO THE FILE OF AO IN VIEW OF THE FAILURE OF THE AO IN ISSUING SHOW CAUSE NO TICE BEFORE MAKING ADDITION OF RS.1,61,94,464/- WITHOUT GRANTING THE BEN EFIT OF CROSS-EXAMINATION OF MR. BIRADAR, WE FIND THERE IS LAPSE ON THE PART OF THE AO IN ISSUANCE OF FINAL SHOW CAUSE NOTICE BEFORE THE AD DITION OF RS.1,61,94,464/- IS MADE. AO SHOULD NOT MAKE ANY ADDITION WITHOUT 24 INFORMING THE SPECIFIC DETAILS OF THE ADDITION PROPOSED TO BE MADE IN THE ASSESSMENT ORDER. IT IS ALSO WORTH MENTIONING THAT THE ISSUE AS A WHOLE IS IN THE KNOWLEDGE OF THE ASSESSEE BUT CERTAINLY NOT THE SPECIFIC ISSU E OF MAKING ADDITION OF RS.1,61,94,464/-. THE SAME IS NOT APPROVE D. THE ORDER OF THE AO, BEING JUDICIAL ORDER, IS EXPECTED TO BE M ADE AS PER THE REQUIREMENT OF THE LAW. THE ASSESSEE HAS THE RIGHT TO KNOW THE MIND OF THE AO BEFORE MAKING ANY ADDITION IN THE ASSESSMENT. TH US, THE AO SHALL EXAMINE THE APPLICABILITY OF THE CITED SUPREME COURT JU DGMENT IN THE CASE OF ANDAMAN TIMBER INDUSTRIES (SUPRA) AND OTHERS . ACCORDINGLY, WE ARE OF THE OPINION THAT THE MATTER SHOULD BE REMANDED TO THE FILE OF THE AO. GROUND NOS. 1 TO 5 RAISED BY THE A SSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 29. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR S TATISTICAL PURPOSES. 30. TO SUM UP, APPEAL OF THE REVENUE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES AND APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE S. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 09 TH THE DAY OF MAY, 2018. SD/- SD/- (VIKAS AWASTHY) (D. KARUNAKARA RAO) /JUDICIAL MEMBER / ACCOUNTANT MEMBER PUNE; DATED : 09 TH MAY, 2018 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, //TRUE COPY// //TRUE COPY// SENIOR PRI VATE SECRETARY , / ITAT, PUNE 1. / THE APPELLANT 2. / THE RESPONDENT 3. CIT(A)-12, PUNE 4. 5. CIT-12, PUNE , , B BENCH PUNE; 6. / GUARD FILE.