ACIT CEN CIR 25, MUMBAI V. BHARAT RANAWAT, MUMBAI

ITA 4814/MUM/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8677 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 20-09-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 10-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMARD EEP
• Assessee Lawyers: MANISH SANGHAVI
• Keywords: Unexplained investment; Gift; Income from undisclosed sources; Search and seizure; Source of fund
• Section: 143(3); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J, MUMBAI BEFORE SHRI H.L. KARWA, PRESIDENT AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER I.T.A. NO.3338/M/2010 ASSESSMENT YEAR: 2008-2009 SHRI BHARAT RANAWAT, FLAT NO.2,PURAB APARTMENTS, RIDGE ROAD, MUMBAI 400 006. PAN: ADMPP1313G VS. DCIT, CENTRAL RANGE 25, 4 TH FLOOR, AAYAKAR BHAVAN, DR. M.K. ROAD, MUMBAI. (APPELLANT) (RESPONDENT) I.T.A. NO.4814/M/2010 ASSESSMENT YEAR: 2008-2009 ACIT, CENTRAL RANGE 25, 4 TH FLOOR, AAYAKAR BHAVAN, DR. M.K. ROAD, MUMBAI. VS. SHRI BHARAT RANAWAT, FLAT NO.2,PURAB APARTMENTS, RIDGE ROAD, MUMBAI 400 006. PAN: ADMPP1313G (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI MANISH SANGHAVI REVENUE BY : SHRI AMARDEEP, DR DATE OF HEARING: 20.09.2012 DA TE OF ORDER: 12.10.2012 O R D E R PER D. KARUNAKARA RAO, AM: 1. THERE ARE TWO APPEALS UNDER CONSIDERATION AND TH EY ARE CROSS APPEALS FILED AGAINST THE ORDER OF THE CIT (A) -39 DATED 10.3.20 10 IN RELATION TO ASSESSMENT YEAR 2008-2009. THE GROUNDS OF BOTH THE APPEALS ARE REP RODUCED AS UNDER: 2. THE GROUNDS RAISED IN ASSESSEES APPEAL ARE AS FOLLOWS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT (A) ERRED IN SUSTAINING THE ADDITIO N OF RS. 5,56,915/- ON ACCOUNT OF ALLEGED UNEXPLAINED INVESTMENT IN GOLD ORNAMENTS. LOOKING TO THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW THE APPELLANT SUBMITS THAT LD. CIT (A) OUGHT TO HAVE HELD 2 SHRI BHARAT RANAWAT THAT THE ADDITION MADE BY THE AO IS INCORRECT AND I NVALID AND OUGHT TO HAVE DELETED THE SAME. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT (A) ERRED IN PARTLY SUSTAINING THE ADDITION OF RS. 24,19,085/- ON ACCOUNT OF ALLEGED UNEXPLAINED DIAMOND JEWELLERY . LOOKING TO THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW THE APPELLANT SUBMITS THAT LEARNED CIT (A) O UGHT TO HAVE HELD THAT THE ADDITION MADE BY THE AO IS INCORRECT AND I NVALID AND OUGHT TO HAVE DELETED THE SAME. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT (A) ERRED IN NOT TELESCOPING THE ADDITIONS MADE IN DISCLOSURE MADE BY THE FIRM IN WHICH THE APPELLA NT IS PARTNER AND EARNED IN NOT GIVING CREDIT FOR AMOUNTS WITHDRAWN F ROM THE FIRM WHILE SUSTAINING THE ABOVE ADDITIONS. LOOKING TO THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW THE APPELLANT SUBMITS THAT LEARNED CIT (A) O UGHT TO HAVE TELESCOPED THE UNEXPLAINED JEWELLERY IN THE DISCLOS URE MADE BY THE FIRM AND OUGHT TO HAVE GIVEN DUE CREDIT FOR AMOUNTS WITHDRAWN FROM THE FIRM AND OUGHT TO HAVE DELETED THE ADDITIO NS MADE ON ACCOUNT OF ALLEGED UNEXPLAINED INVESTMENT IN JEWELL ERY. 3. THE ONLY EFFECTIVE GROUND RAISED IN THE REVENUES APPEAL IS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT (A) ERRED IN DIRECTING THE ASSESSING OF FICER TO DELETE THE ADDITION MADE ON ACCOUNT OF CASH FOUND DURING THE C OURSE OF SEARCH WITHOUT APPRECIATING THE FACTS OF THE CASE. 4. BRIEFLY STATED RELEVANT FACTS OF THE CASE ARE TH AT THE ASSESSEE IS A PARTNER IN FIRMS BELONGING TO METRO GROUP OF CASES. THIS GROUP WAS SEARCHED BY THE REVENUE U/S 132 OF THE ACT. ASSESSEE FIELD THE RETURN OF IN COME DECLARING TOTAL INCOME OF RS 11,16,460/-. AS A RESULT OF THE SCRUTINY ASSESSMENT U/S 143(3) OF THE ACT, THE ASSESSED INCOME WAS COMPUTED AT RS. 56,60,410/-. AO MADE ADDITIONS ON ACCOUNT OF CASH SEIZED, GOLD AND DIAMOND JEWELLERY FOUND AN D SEIZED DURING THE SEARCH PROCEEDINGS. ON APPEAL, CIT(A) PARTLY ALLOWED THE A SSESSEES APPEAL AND THEREFORE 3 SHRI BHARAT RANAWAT THE CROSS APPEALS ARE FILED BEFORE US BY BOTH ASSES SEE AS WELL AS THE REVENUE. WE SHALL TAKE UP THE ASSESSEES APPEAL FIRST. 5. GROUND NOS. 1 & 2 OF THE ASSESSEES APPEAL RELA TE TO (I) CONFIRMING OF THE ADDITION OF RS.5,56,915/- ON ACCOUNT OF ALLEGED UNE XPLAINED INVESTMENT IN THE GOLD JEWELLERY; AND (II) CONFIRMING OF ADDITION OF RS 24 ,91,085/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN DIAMOND JEWELLERY. RELEVANT FACTS RELATING TO BOTH GOLD AND DIAMOND JEWELLERY FOUND DURING THE SEARCH ARE T ABULATED IN PARA NO. 3.5 OF THE IMPUGNED ORDER. 5.1 DETAILING THE RELEVANT FACTS, SRI MANISH SANGHA VI, LEARNED COUNSEL MENTIONED THAT THERE WAS AN ACTION U/S 132 OF THE ACT ON THE ASSESSEE AND THE SEARCH TEAM QUANTIFIED THE AVAILABLE GOLD JEWELLERY AT 4254.400 GMS AND DIAMOND JEWELLERY AT 701.100 CTS AS ON THE DATE OF THE SEARCH. DURING T HE SEARCH PROCEEDINGS, ASSESSEE FILED EVIDENCE TO THE TUNE OF 3814.300 GMS OF GOLD JEWELLERY AND 210 CTS OF DIAMOND JEWELLERY BASED ON THE DISCLOSURE IN THE WEALTH TAX RETURNS. THUS, THE ASSESSEE COULD NOT FILE EVIDENCE FOR BALANCE OF GOLD JEWELLERY OF 440.100 GMS AND FOR BALANCE OF DIAMOND JEWELLERY OF 409 CTS. THESE QUANTITIES VALU ED AT RS. 5,56,915/- (GOLD JEWELLERY) AND RS. 24,91,085/- (DIAMOND JEWELLERY) RESPECTIVELY, REMAINED DISPUTED ISSUES. IN THIS RESPECT, THE ASSESSEE SUBMITTED THAT GOLD JEWELLERY OF 440.100 GMS AND DIAMOND JEWELLERY OF 409 CTS ARE RECEIVED BY WA Y OF GIFTS ON VARIOUS FESTIVAL AND OTHER SPECIAL OCCASIONS FROM THE NEARS AND DEARS OF THE ASSESSEE. AS PER THE LD COUNSEL FOR THE ASSESSEE, SUCH GIFTING OF THE GOLD AND DIAMOND JEWELLERY IS A COMMON OCCURRENCE IN THE COMMUNITY TO WHICH THE ASS ESSEE BELONGS. HOWEVER, ASSESSEE COULD NOT FILE THE DETAILS OF THE DONORS A ND ITEMS GIFTED BY THE DONORS BEFORE THE I.T. AUTHORITIES. THEREFORE, THE AO MADE ADDITION AS UNEXPLAINED INVESTMENT IN GOLD AND DIAMOND JEWELLERY. DURING TH E FIRST APPELLATE PROCEEDINGS, THE ASSESSEE COULD NOT IMPROVE HIS CASE AND THEREFO RE, CIT(A) CONFIRMED THE SAID ADDITION. THEREFORE, THE ASSESSEE IS BEFORE US. BE FORE US, LEARNED COUNSEL FOR THE 4 SHRI BHARAT RANAWAT ASSESSEE FAIRLY MENTIONED THAT GENERATION OF EVIDEN CES IN RESPECT OF THESE GIFTS IS NOT POSSIBLE AND THEREFORE, THE TRIBUNAL MAY TAKE A DECISION BASING ON THE FACTS OF THE CASE. 6. PER CONTRA , LEARNED DR MENTIONED THAT THIS IS A CASE OF SEARC H AND THE SEARCH TEAM DISCOVERED AND SEIZED THE EXCESS GOLD AND DIAM OND JEWELLERY AS THE ASSESSEE FAILED TO PRODUCE ANY EVIDENCE AND NOT EXPLAINED TH E SOURCE FOR THE SAME. FURTHER, THE EXPLANATION OF THE ASSESSEE, WHICH REVOLVES ARO UND THE CUSTOMS AND TRADITIONAL GIFTS, IS VERY GENERAL. THEREFORE, THE SAID EXPLAN ATION OF THE ASSESSEE HAS TO BE DISMISSED. LD DR MENTIONED THAT THE ORDER OF THE CI T (A) SHOULD NOT BE DISTURBED ON THESE GROUNDS. 7. WE HAVE HEARD BOTH THE PARTIES ON BOTH GROUNDS A ND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES ON THIS ISSUE. THIS IS AN U NDISPUTED FACT THAT THE SOURCES FOR ACQUIRING THE SAID EXCESS GOLD JEWELLERY WORTH RS. 5,56,915/- AND DIAMOND JEWELLERY OF RS. 24,19,085/- WERE NOT EXPLAINED WITH THE EVID ENCES. IT IS AN ADMITTED POSITION THAT EXPLANATION GIVEN BY THE ASSESSEE IS VERY GENE RAL AND NO SPECIFIC EXPLANATION WAS OFFERED BY THE ASSESSEE. IT IS AN UNDISPUTED FA CT THAT THE ASSESSEE HAS NOT FURNISHED EITHER THE LIST OF THE DONORS OR THE LIST OF THE ITEMS DONATED BY THE DONORS AND DETAILS OF THE OCCASIONS. THIS IS A SEARCH AND SEIZURE ASSESSMENT AND THE PRIMARY ONUS IS ON THE ASSESSEE TO EXPLAIN THE SOUR CE OF THE INCOME FOR INVESTMENT ON THE SEIZED ASSETS OF GOLD AND DIAMOND JEWELLERY. CONSIDERING THE ABOVE SAID PRINCIPLES RELATING TO SEARCH ASSESSMENTS AND ASSES SEES FAILURE DISCHARGE THE ONUS, WE ARE OF THE OPINION THAT THE ORDER OF THE CIT (A) DOES NOT CALL FOR ANY INTERFERENCE. ACCORDINGLY, GROUND NO.1 AND 2 OF THE ASSESSEES APPEAL ARE DISMISSED. 8. GROUND NO.3 RELATES TO GRANTING OF TELESCOPIC BENEFIT TO THE ASSESSEE IN RESPECT OF THE ABOVE UNEXPLAINED GOLD AND DIAMOND J EWELLERY AGAINST THE DISCLOSED INCOME OFFERED BY THE ASSESSEE DURING THE SEARCH AN D SEIZURE ACTION. THIS ISSUE WAS RAISED BEFORE THE FIRST APPELLATE AUTHORITY AND THE CIT (A) CONSIDERED THE ISSUE AT 5 SHRI BHARAT RANAWAT LENGTH BEFORE REJECTION OF THE SAME. RELEVANT DISC USSION WAS GIVEN IN PARAS 8 TO 13 OF THE IMPUGNED ORDER. THE CIT (A) AFTER CONSIDERI NG VARIOUS DECISIONS RELIED UPON BY THE ASSESSEE, DECIDED THE ISSUE AGAINST THE ASSE SSEE. THE ASSESSEES FAILURE IN DISCHARGING THE ONUS AND TO PROVE THE UNACCOUNTED G OLD AND DIAMOND JEWELLERY WERE PURCHASED OUT OF UNDISCLOSED INCOME OFFERED BY THE ASSESSEE DURING THE SEARCH AND SEIZURE ACTION ARE THE MAIN REASONS FOR REJECTION OF THE ASSESSEES CLAIM FOR THE TELESCOPY BENEFIT. AGGRIEVED WITH THE SAME , THE ASSESSEE RAISED GROUND NO.3 BEFORE US. 9. BEFORE US, SRI MANISH SANGHAVI, LEARNED COUNSEL STATED THAT A SUM OF RS. 1.81 CRORE WAS OFFERED BY HIS FIRM NAMED M/S. METRO CONS TRUCTION CO., WHERE THE ASSESSEE IS A PARTNER. HIS SHARE OF SUCH UNDISCLOS ED INCOME IS RS. 36 LAKHS. THEREFORE, THE SUM OF RS. 36 LAKHS OF UNDISCLOSED I NCOME CONSTITUTES FUNDS AVAILABLE FOR SET OFF AGAINST THE UNEXPLAINED SEIZE D ASSETS OF RS. 29,76,000/- (RS. 5,56,915/- + RS. 24,19,085/-). LEARNED COUNSEL ARG UED THAT THE SUM OF RS. 36 LAKHS IS AVAILABLE FOR EXPLAINING THE INVESTMENT IN GOLD AND DIAMOND JEWELLERY. FURTHER, LEARNED COUNSEL SUBMITTED THAT UNEXPLAINED INVESTMENTS IN GOLD AND DIAMOND JEWELLERY AMOUNTING TO RS. 5,56,915/- AND R S. 24,19,085/- RESPECTIVELY STAND EXPLAINED IF TELESCOPIC BENEFIT IS GRANTED TO THE ASSESSEE AGAINST SAID RS 36 LAKHS, THE UNDISCLOSED INCOME OFFERED BY THE ASSESS EE U/S 132(4) OF THE ACT. THEREFORE, AN ALTERNATE CLAIM OF THE ASSESSEE FOR G RANT OF TELESCOPIC BENEFIT MAY BE GRANTED TO THE ASSESSEE NOTWITHSTANDING THE FACT TH AT THE ABSENCE OF ANY EVIDENCE TO SUPPORT THE CLAIM OF THE ASSESSEE. LEARNED COUNS EL RELIED ON VARIOUS JUDGMENTS MENTIONED IN THE IMPUGNED ORDER. 10. ON THE OTHER HAND, LEARNED DR BROUGHT TO OUR AT TENTION THE CONTENTS OF THE ASSESSEES LETTER DATED 3.8.2009 AND READ OUT THE E XPRESSIONS ENTIRE JEWELLERY FOUND DURING THE SEARCH ACTION BELONGS TO ME AND MY FAMILY MEMBERS AND IS ACQUIRED OVER A PERIOD OF TIME AND AS ALSO STRIDHAN OF THE RESPECTIVE LADY 6 SHRI BHARAT RANAWAT MEMBERS. THE ASSESSEES FAMILY HAS DECLARED THEIR JEWELLERY IN THEIR RESPECTIVE WEALTH-TAX RETURN AND VDIS RETURN AS SHOWN IN CHART- II. THEREFORE, NOW THE ASSESSEE CANNOT CLAIM THAT THE UNACCOUNTED JEWELLER Y IS ACQUIRED OUT OF THE UTILIZATION OF THE UNDISCLOSED INCOME, WHICH WAS DI SCLOSED U/S 132(4) OF THE ACT. 11. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE ORD ERS OF THE REVENUE AUTHORITIES AND ALSO THE DECISIONS REFERRED TO IN P ARA 9 OF THE IMPUGNED ORDER I.E. (I) ANANTHARAM VEERASINGHAIAH & CO. VS. CIT, 123 ITR 45 7 (SC) (II) CIT VS. K.S.M. GURUSWAMY NADAR & SONS, 149 ITR 127 (MAD) (III) CIT , PUNE VS. JAWANMAL GEMAJI GANDHI, 151 ITR 353 (BOM). WE HAVE ALSO PERUSED P ARA 13 OF THE IMPUGNED ORDER, WHICH CONTAINS THE REASONING OF THE CIT(A) FOR DENI AL OF THE TELESCOPIC BENEFIT OF THE UNEXPLAINED INVESTMENT IN GOLD AND DIAMOND JEWELLER Y WITH THE UNDISCLOSED INCOME OFFERED BY THE ASSESSEE IN THE SEARCH PROCEEDINGS. IN VIEW OF ITS IMPORTANCE, THE SAID PARA IS REPRODUCED AS UNDER: 13............. EVEN IN THE SUBMISSIONS BEFORE THE AO DURING THE ASSESSMENT PROCEEDINGS, THE APPELLANT HAS EXPLAINED THE JEWELLERY AS STRIDHAN AND GIFTS. THE APPELLANT HAS ALSO STATED THAT HE HAS ALSO UTILIZED RS. 36 LAKHS THE SHARE FROM THE ADDITIONAL INCOME OFFERED IN THE HANDS OF THE FIRM FOR ACQUIRING JEWELLERY. HOW EVER, HE HAS NOT STATED HOW MUCH OUT OF RS. 36 LAKHS WAS USED FOR AC QUIRING UNACCOUNTED JEWELLERY. IT IS SETTLED LAW THAT THE BURDEN LIES ON THE ASSESSEE TO PROVE THAT THE UNACCOUNTED ASSETS FOUND WERE FROM THE UTILIZATION OF UNACCOUNTED INCOME FROM THE FIRM. IF THE ASSESSEE HAS NO OTHER INCOME APART INCOME FROM THE FIRM THEN IT MAY BE POSSIBLE TO PRESUME THAT THE UNACCOUNTED INVESTMENTS OF THE ASSESSEE ARE FROM THE UNACCOUNTED INCOME OF THE FIRM. IN THIS CA SE, THE APPELLANT IS A PARTNER IN MANY FIRMS AND THE APPELLANT HIMSEL F HAS STATED THAT HE HAS AN UNDISCLOSED SOURCE OF INCOME I.E. INCOME FROM LIAISON WORK. THE APPELLANT HAS RELIED ON MANY DECISIONS CITED IN THIS ORDER. HOWEVER, THOSE DECISIONS ARE DISTINGUISHABLE IN VIE W OF THE FACT THAT IN THIS CASE THE APPELLANT HAS STATED THAT HE HAS E ARNED THE INCOME FROM PARTICULAR SOURCE OF INCOME OTHER THAN THE SOU RCE FROM WHICH UNACCOUNTED INCOME WAS DETECTED AND ACQUIRED THE JE WELLERY. BUT IN THOSE CASES, THE ASSESSEES WERE NOT HAVING ANY OTHE R SOURCE OF INCOME EXCEPT FROM THE SOURCE UNACCOUNTED INCOME WA S DETECTED. IN 7 SHRI BHARAT RANAWAT THESE CIRCUMSTANCES, I HOLD THAT THE APPELLANT COUL D NOT PROVE THAT THE UNACCOUNTED JEWELLERY IS ACQUIRED FROM THE UNAC COUNTED INCOME DISCLOSED BY THE FIRM. THE APPELLANT HAS RELIED ON THE ENTRIES MADE IN THE FIRMS BOOKS. THESE ENTRIES WERE MADE IN THE B OOKS OF ACCOUNTS ONLY AFTER THE SEARCH WAS CONDUCTED AND HENCE IT IS NOT RELIABLE. FURTHER, THERE IS NO EVIDENCE TO PROVE THAT THE JEWELLERIES WERE PURCHASED RECENTLY I.E. AFTER THE ON MONEY RECEIVED BY THE FIRM METRO CONSTRUCTION CO. IN THESE CIRCUMSTANCES, I COULD NOT ACCEPT THE APPELLANTS SUBMISSIONS. 11.1. THE ASSESSEE CLAIMS THAT THE UNACCOUNTED GOLD AND DIAMOND JEWELLERY WAS ACQUIRED OVER THE PERIOD OF TIME AND ALSO AS STRIDHAN . WITHOUT PREJUDICE, THE ASSESSEE ALSO CLAIMS THAT THE SAID JEWELLERY WAS AC QUIRED OUT OF THE ON MONEY OF RS 36 LAKHS EARNED BY HIM. THE ASSESSEE HAS NO EVIDENC E TO SUPPORT THE SAME. FROM THE ABOVE, IT IS EVIDENT THAT THE ASSESSEE FAILED T O DISCHARGE THE ONUS SATISFACTORILY AND FAILED TO DEMONSTRATE THAT THE UNACCOUNTED JEWE LLERY IS PURCHASED OUT OF THE UNACCOUNTED INCOME DISCLOSED BY THE ASSESSEE DURING THE SEARCH ACTION. IT IS A SETTLED LAW THAT THE ONUS IS ON THE ASSESSEE TO EXP LAIN ABOUT THE EXISTENCE OF THE SECRET FUNDS OR UNDISCLOSED FUNDS PRIOR TO THE ACQUISITION OF THE IMPUGNED GOLD AND DIAMOND JEWELLERY. TIMING BECOMES A RELEVANT FACTOR IN MATTERS OF CLAIM OF BENEFIT OF TELESCOPY. SO LONG AS ASSESSEE HAS NOT SUCCESSFU LLY DISCHARGED THE ONUS, THE CLAIM OF THE ASSESSEE FOR TELESCOPIC BENEFIT CANNOT BE ENTERTAINED. WE CANNOT APPRECIATE THE COUNSELS ARGUMENT THAT THE VERY FAC T THE ASSESSEE HAS DISCLOSED A SUM OF RS 36 LAKHS ON A PARTICULAR DATE AS HIS UNAC COUNTED MONEY, SAID SUM SHOULD CONSTITUTE THE SOURCE OF FUNDS TO EXPLAIN THE UNEXP LAINED GOLD AND DIAMOND JEWELLERY WHICH WAS DISCOVERED AND SEIZED BY THE RE VENUE. TO EXPLAIN SUCH UNDISCLOSED JEWELLERY, THE ASSESSEE HAS TO DEMONSTR ATE THE DATE OF ACQUISITION OF THE SAME AND ALSO THE AVAILABILITY OF THE UNACCOUNTED F UNDS BEFORE THE DATE OF SUCH ACQUISITION. AS SUCH, THE GENERALISED EXPLANATIONS AS GIVEN BY THE ASSESSEE HAVE TO BE REJECTED IN MATTERS OF SEARCH AND SEIZURE ASSESS MENTS. THUS, THE DECISION OF THE CIT (A) DOES NOT CALL FOR ANY INTERFERENCE. ACCORD INGLY, GROUND RAISED BY THE ASSESSEE IS DISMISSED . 8 SHRI BHARAT RANAWAT I.T.A. NO.4814/M/2010 REVENUES APPEAL 12. THE ONLY EFFECTIVE GROUND RAISED BY THE REVENUE IN ITS APPEAL RELATES TO THE RELIEF GRANTED BY THE CIT (A) TO THE ASSESSEE IN RE SPECT OF THE CASH SEIZED OF RS. 15,67,950/-. RELEVANT FACTS OF THE DECISION OF THE CIT (A) ARE GIVEN IN PARAS 17 & 18 OF THE IMPUGNED ORDER AND THE SAME ARE REPRODUCED A S UNDER: 17. AS FAR AS SEIZURE OF CASH IS CONCERNED, THE APP ELLANT EXPLAINED THAT IT CAME FROM THE UNACCOUNTED INCOME OFFERED IN THE HANDS OF THE APPELLANT. IN THE CASE OF THE FIRM ON MONEY WAS RECEIVED IN CASH AND IT IS ALSO A FACT THAT THERE IS NO OTHER E VIDENCE IN THE HANDS OF THE FIRM TO SHOW THIS CASH IS UTILIZED BY THE FI RM FOR ANY OTHER PURPOSE. IN THESE CIRCUMSTANCES, THE APPELLANTS EX PLANATION APPEARS TO BE ACCEPTABLE. THE APPELLANT HAS ALSO S TATED IN THE SWORN STATEMENT ON 5.6.2007 I.E. ON THE DATE OF SEARCH AS FOLLOWS: Q.NO.15. DURING THE COURSE OF SEARCH, CASH AMOUNTI NG TO RS. 15,67,950/- WAS FOUND IN THE PREMISES. PLEASE EXPL AIN THE SOURCE OF THE SAME. ANS:- I HAVE RECEIVED CERTAIN PAYMENTS IN CASH FROM CUSTOMERS WHICH MIGHT NOT HAVE BEEN RECORDED IN THE BOOKS OF ACCOUNT. AT THIS POINT OF TIME, I AM NOT IN A POSITION TO RECOLLECT THE SAME. HOWEVER, TO PURCHA SE PEACE WITH THE DEPARTMENT, I AM DECLARING THIS AMOUN T OF RS. 15,67,950/- FOR THE FY 2007-2008. 18. IT IS ALSO SEEN THAT M/S. METRO CONSTRUCTION CO. HAS ALSO DISCLOSED THIS AMOUNT AS ON MONEY RECEIVED FROM T HE PURCHASERS OF THE FLAT. IN VIEW OF THIS, I AM SATISFIED THAT T HE SEIZED CASH OF RS. 15,67,950/- IS PROPERLY EXPLAINED AND HENCE NO FURT HER ADDITION NEEDS TO BE MADE. I DIRECT THE AO DELETE THE ADDITI ON OF RS. 15,67,950/-. 13. FROM THE ABOVE, IT IS EVIDENT THAT THE SAID SEI ZED CASH FROM THE ASSESSEE WAS GIVEN BY M/S. METRO CONSTRUCTIONS CO. WHICH IS EVID ENT FROM THE ENTRIES APPEARING IN ITS BOOKS OF ACCOUNTS. THE AO HAS NOT BROUGHT ANY ADVERSE FINDING ON THE GENUINENESS OF THE ENTRIES IN THE BOOKS OF M/S. MET RO CONSTRUCTIONS CO. CONSIDERING THE SAME, THE RELIEF GIVEN BY THE CIT (A) DOES NOT CALL FOR ANY INTERFERENCE. ACCORDINGLY, GROUND RAISED BY THE REVENUE IS DISMISSED . 9 SHRI BHARAT RANAWAT 14. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE A S WELL AS ASSESSEE ARE DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 12 TH DAY OF OCTOBER, 2012. SD/- SD/- (H.L. KARWA) (D. KARUNAKARA RAO) PRESIDENT ACCOUNTANT MEMBER DATE : 12.10.2012 AT :MUMBAI OKK COPY TO : 1. SHRI BHARAT RANAWAT, MUMBAI. 2. ACIT, CEN. CIR. 25, MUMBAI. 3. THE CIT (A), CONCERNED. 4. THE CIT CONCERNED. 5. THE DR J, BENCH, ITAT, MUMBAI. 6. GUARD FILE. // TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI