SHALENDRA MAHESHWARI, Kota V. JCIT, Jaipur

ITA 476/JPR/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5022 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2005-2006
• Appeal Filed On: 14-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MUKESH VERMA CIT DR DHK
• Keywords: Business income; Income from undisclosed sources; Search and seizure; Salary income; Document seized; Documents seized
• Section: 69

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES , JAIPUR JH HKKXPUN] YS[KK LNL; ,O JH DQY HKKJR] U;KF;D L NL; DS LE{K BEFORE: SHRI BHAGCHAND, AM & SHRI KUL BHARAT, JM VK;DJ VIHY LA-@ ITA NO. 476 & 477 /JP/2015 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2005-06 & 2006-07 SHRI SHAILENDRA MAHESHWARI 2-K-11, DADA BADI EXTENSION, KOTA CUKE VS. THE JCIT (OSD) CENTRAL CIRCLE- 3 JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ACCPM 2816 J VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI VIJAY GOYAL , CA JKTLO DH VKSJ LS@ REVENUE BY:SHRI MUKESH VERMA, CIT-. DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 10/10/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 17 /10/2016 VKNS'K@ ORDER PER BHAGCHAND, AM BOTH THESE APPEALS HAVE BEEN FILED BY THE ASSESSEE AGAINST COMMON ORDER OF THE LD. CIT(A), ALWAR DATED 13-03-2015 FO R THE ASSESSMENT YEARS 2005-06 AND 2006-07 WHEREIN THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 9,50,000/- (A.Y. 2005-06) AND RS. 14,28,268/- (A.Y. 2006-07) M ADE BY THE AO U/S 69 OF THE ACT ON ACCOUNT OF ALLEGED UNEXPLA INED TRANSACTION RECORDED ON PAGE 14 OF ANNEXURE AS 5, S EIZED DURING ITA NO. 476/JP/2015 SHRI SHAILENDRA MAHESHWARI VS. JCIT (OSD) CENTRAL CIRCLE- 3, JAIPUR . 2 THE COURSE OF SEARCH FROM 2-KA-11,DADA BADI, KOTA W ITHOUT APPRECIATING THE FACTS OF THE CASE AND SUBMISSION M ADE BY THE ASSESSEE DURING THE COURSE OF APPELLATE PROCEEDINGS . 2. THAT THE ORDER OF THE LD. CIT(A), CONFIRMING THE ADDITION MADE BY THE AO IS ARBITRARY, WHIMSICAL CAP RICIOUS, PERVERSE AND AGAINST THE LAW AND FACTS OF THE CASE. THE ORDER OF THE LD. CIT(A) IN THIS REGARD DESERVES TO BE SET ASIDE AND ADDITION MADE BY THE AO DESERVES TO BE DELETED. 3. THE ASSESSEE PRAYS FOR LEAVE TO ADD, TO AMEND, T O DELETE OR MODIFY THE ALL OR ANY GROUNDS OF APPEAL O N OR BEFORE THE HEARING OF APPEAL. 2.1 THE GROUND NOS. 2 AND 3 OF THE ASSESSEE IN BOTH THE APPEALS ARE GENERAL IN NATURE WHICH DOES NOT REQUIRE ANY ADJUDI CATION. 3.1 APROPOS GROUND NO. 1 OF THE ASSESSEE FOR THE AS SESSMENT YEARS 2005-06 AND 2006-07, BRIEF FACTS OF THE CASE ARE TH AT A SEARCH WAS CONDUCTED ON 4-12-2009 IN THE CASE OF M/S. CAREER P OINT GROUP OF KOTA TO WHICH THE ASSESSEE BELONGS. IT IS NOTED THAT FRO M THE ASSESSMENT ORDER THAT THE ASSESSEE DERIVED INCOME FROM SALARY FROM M /S. CAREER POINT AND ASSESSEE HAD ALSO DECLARED INCOME FROM OTHER SOURCE S. IN RESPONSE TO NOTICE U/S 153A, THE ASSESSEE FILED HIS RETURN OF I NCOME ON 29-07-2010 DECLARING TOTAL INCOME OF RS. 2,94,800/- & RS. 3,87 ,850/- FOR A.Y. 2005-06 AND A.Y. 2006-07 RESPECTIVELY. THE ASSESSME NT OF ASSESSEE WAS COMPLETED BY THE AO ASSESSING THE TOTAL INCOME OF T HE ASSESSEE AT RS. 12,48,400/- FOR A.Y. 2005-06 AND RS. 18,19,710/ - FOR A.Y. 2006-07. ITA NO. 476/JP/2015 SHRI SHAILENDRA MAHESHWARI VS. JCIT (OSD) CENTRAL CIRCLE- 3, JAIPUR . 3 IT IS ALSO NOTED THAT AO HAD MADE AN ADDITION OF R S. 9,50,000/- FOR A.Y. 2005-06 AND RS. 14,28,268/- FOR A.Y. 2006-07 TOTALI NG TO RS. 23,78,268/- UNDER SECTION 69 OF I.T. ACT, 1961 ON ACCOUNT OF AL LEGED UNEXPLAINED TRANSACTIONS RECORDED ON PAGE NO. 14 OF ANNEXURE-AS -5 SEIZED DURING THE COURSE OF SEARCH FROM 2-K-11, DADABARI, KOTA WH ICH WAS CONFIRMED BY LD CIT(A) BY OBSERVING AS UNDER. 4.3 I HAVE PERUSED THE ASSESSMENT ORDER AS WELL A S THE SUBMISSIONS MADE BY THE APPELLANT AND FIND THAT A TOTAL ADDITION OF RS. 23,78,268/- HAS BEEN MADE TO THE INCOME OF T HE APPELLANT U/S 69 OF THE I.T. ACT ON ACCOUNT OF INCRIMINATING DOC UMENTS PAGE 14 OF AS-5, FOUND AND SEIZED DURING THE COURSE OF SEAR CH. AN AMOUNT OF RS. 9,50,000/-HAS BEEN ASSESSED IN A.Y. 2005-06 AND THE BALANCE AMOUNT OF RS. 14,28,268/- HAS BEEN ASSESSED IN A.Y. 2006- 07. AO HAS DISCUSSED THE NATURE OF TRANSACTIONS REC ORDED ON THIS PAPER AND AFTER GOING THROUGH THE EVIDENCE FILED BY THE APPELLANT HAS GIVEN CREDIT FOR AN AMOUNT OF RS. 2,76,000/- OU T OF THE TOTAL AMOUNT OF TRANSACTIONS OF RS. 26,54,268/- RECORDED ON THIS PAPER. THEREFORE, ONLY AN ADDITION OF BALANCE AMOUNT WHICH REMAINED UNEXPLAINED TO THE EXTENT OF RS. 23,78,268/- WAS MA DE TO THE INCOME OF THE APPELLANT. 4.4 THE APPELLANT HAS STATED THAT HIS MAIN SOURCE O F INCOME IS ON ACCOUNT OF SALARY INCOME FROM M/S. CA REER POINT. THE PAPER CONTAINS NOTINGS MADE FOR COLLECTION OF F EES AND WHICH IN TURN WAS HANDED OVER TO SHRI OM JI. IT IS FURTHE R EXPLAINED THAT PAGE NO. 14 IS A PRINTOUT OF COMPUTER AND PAGE NO. 22 IS A HANDWRITTEN DOCUMENT HAVING SAME TRANSACTIONS. ON P AGE NO. 22, IT IS WRITTEN THAT GIVEN TO OM JI AND THEREFORE, NO IN COME BE ASSESSED IN THE HANDS OF THE APPELLANT. IT IS SUBMITTED THAT NO ADDITION BE MADE ON ACCOUNT OF THIS PAPER AS THE CASE OF THE C OMPANY AS WELL AS THE DIRECTORS HAVE BEEN SETTLED BY THE ORDER OF SETTLEMENT COMMISSION. THE ADDITIONAL INCOME HAS BEEN DETERMIN ED OVER AND ABOVE WHAT WAS DECLARED BY THE APPELLANT BEFORE THE COMMISSION. ITA NO. 476/JP/2015 SHRI SHAILENDRA MAHESHWARI VS. JCIT (OSD) CENTRAL CIRCLE- 3, JAIPUR . 4 4.5 HAVING CONSIDERED THE MATERIAL AVAILABLE ON REC ORD ALONGWITH JUDICIAL CITATIONS RELIED UPON BY THE APP ELLANT, I FIND THAT APPELLANT HAS DULY ACCEPTED THAT THESE TRANSACTIONS EXPLAIN THE RECEIPT OF UNACCOUNTED INCOME WHICH STANDS INVESTED IN PURCHASE OF IMMOVABLE PROPERTIES AT AJMER. THE APPELLANT HAS CLAIMED THAT THIS UNACCOUNTED INCOME STANDS DECLARED IN THE HAND S OF OTHER PARTIES OF THE GROUP. HOWEVER, APPELLANT HAS FAILED TO FURNISH ANY EVIDENCE AS TO WHERE THIS INCOME HAS BEEN DISCLOSED AFTER THE SEARCH AND IN WHOSE HANDS THE SAME HAS BEEN OFFERED FOR TAXATION. THE APPELLANT HAS MADE AN EFFORT TO EXPLAIN THE SAM E IN A ROUND ABOUT MANNER BY STATING THAT IT WAS DISCLOSED IN TH E ADDITIONAL INCOME ASSESSED BY THE SETTLEMENT COMMISSION. A COP Y OF THE ORDER PASSED BY THE COMMISSION HAS BEEN FILED AND I HAVE CAREFULLY EXAMINED THAT SAME AND FAIL TO FIND AS TO WHERE THE SAME HAS BEEN DISCLOSED. THE ORDER PASSED BY THE COMMISSION HAS G IVEN DETAILS OF ADDITIONAL INCOME DISCLOSED BY EACH APPLICANT AND T HE SOURCE OF INCOME/ INVESTMENT. NO WHERE IN THE ORDER OF THE CO MMISSION ANY REFERENCE TO THE PAPERS FOUND & SEIZED FROM THE PRE MISES OF THE APPELLANT HAS BEEN MADE OR THE UNACCOUNTED RECEIPTS MENTIONED THEREIN WHICH WERE RECEIVED BY THE OTHER APPLICANT BEFORE THE COMMISSION. THE APPELLANT HAS ALSO FOR THIS REASON, FAILED TO SPECIFY, AS TO WHERE IT STANDS DISCLOSED IN THE ORD ER OF THE SETTLEMENT COMMISSION AND THAT IS WHY NO SPECIFIC R EFERENCE TO ANY PART OR PARA OF THE ORDER OF THE COMMISSION WAS MADE, IN THE COURSE OF APPELLATE PROCEEDINGS. 4.6 THUS I FIND THAT THE AO WAS JUSTIFIED IN ASSESS ING THE SAME AS INCOME OF THE APPELLANT FROM WHOSE POSSESSI ON THE DOCUMENTS WERE FOUND. FURTHER, APPELLANT HAS FAILED TO FURNISH ANY EVIDENCE EITHER BEFORE THE AO OR IN THE COURSE OF P RESENT PROCEEDINGS TO SUBSTANTIATE ITS CONTENTIONS. THEREF ORE, I CONFIRM THE ADDITION OF RS. 9,50,000/- FOR A.Y. 2005-06 AND OF RS. 14,28,268/- FOR A.Y. 2006-07 MADE BY THE AO U/S 69 OF THE I.T. ACT. 3.2 DURING THE COURSE OF HEARING, THE LD. AR OF THE PRAYED FOR DELETION OF ADDITION CONFIRMED BY THE LD. CIT(A) AMOUNTING T O RS. 23,78,268/- ITA NO. 476/JP/2015 SHRI SHAILENDRA MAHESHWARI VS. JCIT (OSD) CENTRAL CIRCLE- 3, JAIPUR . 5 (RS. 9,50,000/- A.Y. 2005-06 AND RS. 14,28,268/- A. Y. 2006-07) FOR WHICH THE ASSESSEE FILED FOLLOWING WRITTEN SUBMISS ION. (I) THE ASSESSEE WAS AN EMPLOYEE OF M/S CAREER POINT. T HE ASSESSEE HAS NO SOURCE OF THE BUSINESS INCOME. AT P G 1 OF ASSESSMENT ORDER, THE LD AO MENTIONED INCOME FROM SALARY & OTHER SOU RCES IN NATURE OF BUSINESS OF THE ASSESSEE. THE DEPARTMENT CARRIED O UT SEARCH AND SEIZURE OPERATIONS OVER CAREER POINT GROUP ON 04-12-2009. THE CAREER POINT GROUP IS ENGAGED IN COACHING AND EDUCATION ACTIVITIES AND THE ASSESSEE IS AN ACCOUNTANT IN THE GROUP. THE DEPARTMENT ALSO COVERE D THE ASSESSEE IN THE SEARCH OPERATIONS. (II) DURING THE COURSE OF SEARCH, THE DEPARTMENT SE IZED DOCUMENTS FROM THE POSSESSION OF ASSESSEE. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE SUBMITTED PAGE TO PAGE REPLY OF THE DO CUMENTS SEIZED FROM HIS POSSESSION. THE MAIN ISSUE IS ON PG 14 AND 22 OF AS -5 SEIZED FROM 2-KA -11 DADABARI, KOTA. THE COPY OF THESE SEIZED PAPERS IS PLACED AT PB PAGE 6 & 7. III) DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE EXPLAINED THAT HE COLLECTED PART OF THE FEES OF CAR EER POINT, AND GAVE IT TO THE PROPRIETOR OF M/S CAREER POINT. ON THIS PAPER, THE ASSESSEE MADE ROUGH NOTINGS FOR COLLECTION OF THE FEES OF M/S CAREER POINT THR OUGH HIM AND HE SUBMITTED THIS PAPER AND COLLECTED AMOUNT TO THE PROPRIETOR O F M/S CAREER POINT. IV) SEIZED PAGE NO 14 IS PRINTOUT OF COMPUTER AND P AGE 22 IS HAND WRITTEN. ON PAGE 14 SOME ENTRIES WITH DATES ARE MEN TIONED WHICH ARE SAME AS MENTIONED ON PG 22. THEREFORE, BOTH THE PAPER SHOUL D BE READ AS WHOLE. ON PAGE 22 OF ANNEXURE AS-5, A REMARK IS WRITTEN GIVE N TO SHRI OMJI . THIS REMARK CLEARLY ESTABLISHES THAT THE TRANSACTIONS DO NOT PERTAIN TO THE ASSESSEE. NEITHER THIS PAPER SHOWS INCOME OF ASSESSEE NOR INV ESTMENT OF THE ASSESSEE. NO ANY NARRATION IS MENTIONED. (V) THE ENTRIES ON PAGE NO 14 AND PAGE 22 ARE COMMO N. AS REGARD PAGE 22 OF AS-5, THE FINDINGS OF LD AO ARE AS UNDER :- ON PAGE NO 22 OF ANNEXURE AS-5, PANCHNAMA OF 2-K-11 , DADABARI, KOTA ACCOUNT OF `28,30,000/- IS RECORDED WITH REMARKS GI VEN TO OMJI SIR. IT HAS BEEN FURNISHED VIDE LETTER DATED 13/12/2011 THAT TH E TRANSACTION ON THIS PAGE REPRESENT COLLECTION OF CAREER POINT GIVEN TO SHRI OM PRAKASH MAHESHWARI. SHRI OM PRAKASH MAHESHWARI IS PROPRIETOR OF M/S CAR EER POINT AND HIS CASE IS BEFORE THE SETTLEMENT COMMISSION. SINCE, THERE I S NO OCCASION TO VERIFY THE TRANSACTION FROM THE BOOKS OF M/S CAREER POINT NOR THE ASSESSEE HAS FILED ANY CONFIRMATION OF CAREER POINT, THIS ISSUE IS LEFT TO BE DECIDED BY THE SETTLEMENT COMMISSION IN CASE OF SHRI OM PRAKASH MAHESHWARI. ITA NO. 476/JP/2015 SHRI SHAILENDRA MAHESHWARI VS. JCIT (OSD) CENTRAL CIRCLE- 3, JAIPUR . 6 IN VIEW OF THE ABOVE FINDINGS, THE ADDITION ON THE BASIS OF SEIZED PAGE 14 CANNOT BE MADE IN THE HANDS OF ASSESSEE MORE SO WHE N THE ENTRIES ON PAGE 14 AND PAGE 22 ARE COMMON. HONBLE SETTLEMENT COMMISSI ON HAS DECIDED THE APPLICATION OF (I) M/S CAREER POINT INFOSYSTEM LTD (II) SHRI OM PRAKASH MAHESHWARI (III) SHRI PRAMOD KUMAR MAHESHWARI AND ( IV) SHRI NAWAL KISHORE MAHESHWARI WHEREIN THE HUGE ADDITIONAL INCO ME (OVER AND ABOVE TO RETURNED INCOME) OF RS.15,43,48,130/- DETERMINED. T HE COPY OF THE ORDER OF HONBLE SETTLEMENT COMMISSION IS PLACED AT PB PAGE 8-72. (VI) THE LD CIT(A) HAS WRONGLY MENTIONED IN PARA 4. 5 AT PG 10 OF HIS ORDER THAT THE APPELLANT HAS DULY ACCEPTED THAT THESE TRANSACTIONS EXPLAIN THE RECEIPT OF UNACCOUNTANT INCOME, WHICH STANDS IN VESTED IN PURCHASE OF IMMOVABLE PROPERTIES AT AJMER. THE ASSESSEE NOWHERE ADMITTED SO. FURTHER, EVEN THE LD AO HAS NOT ALLEGED SO. THE LD CIT(A) MA DE THIS FINDING WITHOUT ANY BASIS AND WITHOUT GOING TO SUBMISSION MADE BY T HE ASSESSEE BEFORE THE LD AO IN RESPECT TO THE PROPERTIES. FOR READY REFERENC E THE SUBMISSION OF ASSESSEE BEFORE THE AO IN RESPECT TO PROPERTY 708 AND 1656 W AS AS UNDER:- SHRI SHAI LENDRA MAHESHWARI EXPLANATION OF DOCUMENTS SEIZED FROM 2-KA-11, DADAB ARI, KOTA EXIBIT PAGE NO RELATES TO PERSON PERIOD WHETHER DISCLOSED IN BOOKS OF ACCOUNTS OR NOT DETAIL DESCRIPTION 3 1 TO 13 SHAILENDRA MAHESHWARI 2004-05 YES PROPERTY PAPERS RELATED TO PLOT NO 708 B.K. KAUL NAGAR, AJMER PURCHASES BY ASSESSEE PAYMENT OF WHICH WAS MADE FROM REGULAR SOURCES. 27 TO 39 SHAILENDRA MAHESHWARI 2002-03 YES PROPERTY RELATED PAPERS OF PLOT NO 1656, SRIRAM KRISHAN PURAM, SECTOR A, KOTA. THE PROPERTY WAS PURCHASED BY ASSESSEE IN FY 2002-03 PAYMENT OF WHICH WAS MADE FROM REGULAR SOURCES. ITA NO. 476/JP/2015 SHRI SHAILENDRA MAHESHWARI VS. JCIT (OSD) CENTRAL CIRCLE- 3, JAIPUR . 7 EVEN THE LD AO FOUND THE PAYMENT OF RS. 2,40,000/- AND RS. 36000/- AGAINST PROPERTY 708 IS FROM DISCLOSED SOURCE. THEREFORE, T HE LD CIT(A) SUSTAINED THE ADDITION ON THE BASIS OF WRONG FACTUAL INCORRECT AN D PERVERSE FINDINGS. (VII) THE LD CIT(A) MENTIONED THAT NO WHERE REFEREN CE OF THESE PAGES ARE MADE IN THE ORDER OF SETTLEMENT COMMISSIO N, THEREFORE, THE ASSESSEE FAILED TO SPECIFY AS TO WHERE THE INCOME AGAINST TH ESE PAPERS STANDS DISCLOSED IN THE ORDER OF HONBLE SETTLEMENT COMMISSION. IN T HIS REGARD, THE HUMBLE ASSESSEE SUBMITS THAT LD CIT(A) FAILED TO APPRECIAT E THE MANNER IN WHICH THE INCOME WAS COMPUTED IN THE ORDER OF HONBLE SETTLEM ENT COMMISSION. HONBLE SETTLEMENT COMMISSION HAS COMPUTED THE INCO ME ON THE BASIS OF ASSET AND EXPENDITURE THEORY. KINDLY SEE PARA 19.2 AND 19.3 OF (PB PG 63-64) ORDER OF HONBLE SETTLEMENT COMMISSION.) UNDISCLOSE D INCOME HAS BEEN DETERMINED ON ACCOUNT OF JEWELRY, PAYMENTS TO FACUL TY MEMBERS ETC. IN THE ORDER OF HONBLE SETTLEMENT COMMISSION ISSUE AS REG ARD INCOME ON THE BASIS OF RECEIPTS/CREDIT SIDE HAS NOT BEEN DEALT WITH, IT DOES NOT MEAN THAT THE UNDISCLOSED INCOME ON ACCOUNT OF INVESTMENT AND EXP ENDITURE WAS OVER AND ABOVE TO WHAT THE UNDISCLOSED RECEIPTS RECORDED IN THE SEIZED DOCUMENTS. THE UNDISCLOSED INCOME ASSESSED ON THE BASIS OF ASSET E XPENDITURE THEORY COVERS THE UNACCOUNTED RECEIPTS ALSO. (VIII) THE SURROUNDING CIRCUMSTANCES AND CAPABILITY TO EARN THE UNDISCLOSED INCOME SHOULD BE TAKEN INTO ACCOUNT BEF ORE MAKING ADDITION U/S 69 OF INCOME TAX ACT. THE ASSESSEE IS EMPLOYEE OF M/S CAREER POINT, KOT A. HIS ONLY SOURCE OF INCOME IS SALARY AND INTEREST FROM BANKS, AND IC ICI /IDBI BONDS. THE DEPARTMENT HAS CARRIED OUT INTENSIVE SEARCH OPERATI ONS AND NO ANY DOCUMENT WAS FOUND TO VISUALIZE ANY UNDISCLOSED BUSINESS ACT IVITY OF THE ASSESSEE. NO ANY UNDISCLOSED ASSETS OR INVESTMENTS WERE FOUND TO JUSTIFY THE ADDITION ON THE BASIS OF SEIZED DOCUMENTS. IN SUCH CIRCUMSTANCES, T HE ASSESSEE CANNOT EARN SUCH HUGE INCOME. THE LOWER AUTHORITIES FAILED TO C ONSIDER THIS ASPECT. THEREFORE ADDITION CANNOT BE SUSTAINED IN THE HANDS OF THE ASSESSEE. RELIANCE IS PLACED ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS SMT. P. K. NOORJAHAN 237 ITR 570 (SC) AND CIT VS BHARAT ENGINEERING AND CONSTRUCTION CO. (197 2) 83 ITR 187 (SC) (IX) THE LD AO MADE THE ADDITION U/S 69 OF INCOME T AX ACT. THIS SEIZED PAPER DOES NOT SHOW ANY INVESTMENT. THE ASSE SSING OFFICER MERELY DISBELIEVED THE EXPLANATION GIVEN BY THE ASSESSEE A ND HAS CONVERTED GOOD PROOF INTO NO PROOF. HONBLE JUSTICE HIDAYATULLAH O F THE SUPREME COURT IN THE CASE OF SREELEKHA BANERJEE VS CIT [1963] 49 ITR 112 (SC); 1 20 OBSERVED THAT THE INCOME TAX DEPARTMENT CANNOT BY MERELY REJECTIN G UNREASONABLY A GOOD EXPLANATION, CONVERT GOOD PROOF INTO NO PROOF. HONBLE SUPREME COURT IN THE CASE OF UMA CHARAN SHAW & BROS CO VS CIT 37 ITR 271 HAS HELD THAT THE SURMISES AND CONJECTURES, AND THE CONCLUSION IS THE RESULT OF SUSPICION WHICH ITA NO. 476/JP/2015 SHRI SHAILENDRA MAHESHWARI VS. JCIT (OSD) CENTRAL CIRCLE- 3, JAIPUR . 8 CANNOT TAKE THE PLACE OF PROOF. HONBLE PUNJAB & HA RYANA HIGH COURT IN THE CASE OF CIT VS ANUPAM KAPOOR (2008) 299 ITR 179 (P & H) ALSO HELD THAT SUSPICION, HOWSOEVER STRONG CANNOT TAKE THE PLACE O F LEGAL PROOF. (X) THIS PAPER DOES NOT REFLECT THE INVESTMENT MA DE BY THE ASSESSEE. IF THE DEPARTMENT CONSIDERS IT AS INVESTM ENT OF THE ASSESSEE, IT IS BURDEN ON THE DEPARTMENT TO PROVE THE FIGURES APPEA RING ON THE PAPER FOUND IN THE SEARCH REPRESENTS UNDISCLOSED INVESTMENT OF THE ASSESSEE. THIS BURDEN IS NOT DISCHARGED AND THEREFORE, ON THE BASIS OF THIS PAPER NO ADDITION CAN BE MADE. RELIANCE IS PLACED ON THE FOLLOWING DECISIONS :- I) COMMISSIONER OF INCOME TAX VS. NARESH KHATTAR (H UF) HIGH COURT OF DELHI (2003) 261 ITR 664 (DEL) TO INVOKE THE PROVISIONS OF S. 69B, THE BURDEN IS O N THE REVENUE TO PROVE THAT THE REAL INVESTMENT EXCEEDS THE INVESTMENT SHO WN IN THE BOOKS OF ACCOUNT II) LAL CHAND AGARWAL VS ACIT 21 TAXWORLD 213;231 I TAT JAIPUR BENCH THE INITIAL BURDEN U/S 69 OF INCOME TAX ACT IS ON D EPARTMENT TO PROVE THE INVESTMENT HAS BEEN MADE BY THE ASSESSEE. 3.3 THE LD. DR RELIED ON THE ORDERS OF THE AUTHORIT IES BELOW. 3.4 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS NOTED FROM THE RECORDS T HAT THE ASSESSEE IS AN EMPLOYEE OF M/S. CAREER POINT AND THE ASSESSEE WAS DERIVING INCOME FROM SALARY AND INTEREST. THE AO MADE ADDITION IN A SSESSEE'S CASE AMOUNTING TO AMOUNTING TO RS. 23,78,268/- (RS. 9,50 ,000/- A.Y. 2005-06 AND RS. 14,28,268/- A.Y. 2006-07) BASED ON PAGE NO. 14 OF ANNEXURE AS-5 SEIZED FROM 2-K-11, DADABARI, KOTA AND THE SAM E WAS CONFIRMED BY THE LD. CIT(A). BEFORE US, THE LD. DR TRIED TO ESTA BLISH THE DIFFERENCE IN ITA NO. 476/JP/2015 SHRI SHAILENDRA MAHESHWARI VS. JCIT (OSD) CENTRAL CIRCLE- 3, JAIPUR . 9 PAGE 6 AND 7 OF THE PAPER BOOK PLACED BY THE LD. AR OF THE ASSESSEE. FROM THE ENQUIRY OF THE BENCH, THE LD. AR ADMITTED THAT MOST OF THE ENTRIES OF PAGE 6 OF THE PAPER BOOK ARE SIMILAR TO PAGE 7 OF T HE PAPER BOOK AND IT IS CLEARLY WRITTEN THAT GIVEN TO OM SIR. THE CONTE NTION OF THE LD. AR OF THE ASSESSEE IS THAT THE ASSESSEE WAS AN EMPLOYEE O F M/S. CAREER POINT WHO USED TO COLLECT THE PART OF THE FEES ON BEHALF OF M/S. CAREER POINT AND HANDED OVER THE SAME TO THE PROPRIETOR OF M/S. CARE ER POINT SHRI OM PRAKASH MAHESHWARI WHICH IS EVIDENT FROM PAGE 7 OF THE PAPER BOOK. THUS THERE WAS NO INCOME TO THE ASSESSEE AND SHRI O M PRAKASH MAHESHWARI HAS ALREADY SETTLED HIS CASE BEFORE THE HON'BLE SETTLEMENT COMMISSION. FURTHER, THE REVENUES ALLEGATION WAS T HAT THE ASSESSEE INVESTED THE AMOUNT IN PROPERTY AT AJMER FOR WHICH THE LD. AR OF THE ASSESSEE FILED THE STATEMENT OF PROPERTIES AND SUBM ITTED THAT THESE WERE ACQUIRED BY THE ASSESSMENT YEARS 2002-03 AND 2004- 05 BUT THE LD. DR COULD NOT SPECIFY THE DETAILS IN WHICH PROPERTY THE AMOUNT WAS INVESTED BY THE ASSESSEE. IT REFLECTS FROM THE RECORDS THAT THE ASSESSEE WAS AN EMPLOYEE OF M/S. CAREER POINT WHO ADMITTED THAT HE USED TO COLLECT THE FEES ON BEHALF OF M/S. CAREER POINT AND HANDED OVER THE SAME TO THE PROPRIETOR OF M/S. CAREER POINT WHICH IS EVIDENT FR OM THE SEIZED MATERIAL ITSELF AND THUS IT ESTABLISHES THAT THERE WAS NO TA XABLE INCOME IN THE HANDS ITA NO. 476/JP/2015 SHRI SHAILENDRA MAHESHWARI VS. JCIT (OSD) CENTRAL CIRCLE- 3, JAIPUR . 10 OF THE ASSESSEE. KEEPING IN VIEW THESE FACTS, CIRCU MSTANCES OF THE CASE AND THE CASE LAWS RELIED ON BY THE ASSESSEE, THE AD DITIONS CONFIRMED BY THE LD. CIT(A) IN ASSESSEES CASE RELATING TO ASSES SMENT YEAR 2005-06 AND 2006-07 AMOUNTING TO RS. 23,78,268/- (RS. 9,50,000/ - A.Y. 2005-06 AND RS. 14,28,268/- A.Y. 2006-07) ARE DIRECTED TO BE DE LETED. THUS THE ORDER OF THE LD. CIT(A) IS REVERSED. THE APPEALS OF THE A SSESSEE ARE ALLOWED. 4.0 IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE ALLOWED ORDER PRONOUNCED IN THE OPEN COURT ON 17 /10/2016. SD/- SD/- DQY HKKJR HKKXPUN (KUL BHARAT) ( BHAGCHAND) U;KF;D LNL; / JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 17 /10/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI SHAILENDRA MAHESHWARI, KOTA 2. IZR;FKHZ@ THE RESPONDENT- THE JCIT (OSD) CENTRAL CIRCLE- 3, JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO.476 & 477/JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR