The Asstt. Commissioner Of Income Tax, Lucknow V. Shri Avdesh Kumar, Lucknow

ITA 488/LKW/2005

• Counselvise Citation: 48823714 RSA 2005
• Duration Of Justice: 9 year(s) 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-11-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 11-11-2014
• Assessment Year: misc
• Appeal Filed On: 30-05-2005
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIVEK MISHRA
• Keywords: Unexplained investment; Opportunity of being heard; Block assessment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.488/LKW/2005 BLOCK PERIOD : 1.4.199 TO 17.10.2001 THE ACIT CENTRAL CIRCLE III LUCKNOW V. SHRI. AVDHESH KUMAR A-969, INDIRA NAGAR LUCKNOW (APPELLANT) (RESPONDENT) ITA NO.530/LKW/2005 BLOCK PERIOD : 1.4.199 TO 17.10.2001 SHRI. AVDHESH KUMAR A-969, INDIRA NAGAR LUCKNOW V. THE ACIT CENTRAL CIRCLE III LUCKNOW (APPELLANT) (RESPONDENT) DEPARTMENT BY : SHRI. VIVEK MISHRA, CIT (DR) ASSESSEE BY: NONE DATE OF HEARING: 11 11 2014 DATE OF PRONOUNCEMENT: 19 11 2014 O R D E R PER SUNIL KUMAR YADAV: THESE CROSS-APPEALS ARE PREFERRED BY THE ASSESSEE AS WELL AS THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A) GRANTING PART RELIEF TO THE ASSESSEE. FOR THE SAKE OF REFERENCE, WE EXTRACT THE GROUNDS OF APPEAL RAISED IN THE ASSESSEES APPEAL AS WELL AS THE REVENUES APPEAL AS UNDER:- GROUNDS IN I.T.A. NO.488/LKW/2005: BY THE REVENUE: 1. THE LD. CIT(A)- III, LUCKNOW HAS ERRED IN LAW AND ON FACTS :- 2 -: IN DELETING THE ADDITION OF RS.7,95,662/- MADE BY THE A.O. ON ACCOUNT OF ENTRIES IN THE UNDISCLOSED BANK ACCOUNT IN THE NAME OF M/S GANGA BUIDERS & PROMOTORS, A BENAMI CONCERN OF THE ASSESSEE , WITHOUT APPRECIATING THE FACTS OF THE CASE AND MATERIAL BROUGHT ON RECORD BY THE ASSESSING OFFICER. 2(A) THE LD. CIT(A)- III, LUCKNOW HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.2,36,200/- OUT OF THE ADDITION OF RS.2,56,000/- MADE BY THE A.O. ON ACCOUNT OF RENT RECEIVED BY THE ASSESSEE ON THE BASIS OF SEIZED PAPERS, WHICH WAS NOT DISCLOSED BY THE ASSESSEE IN HIS RETURN OF INCOME WITHOUT APPRECIATING THE FACTS OF THE CASE AND MATERIAL BROUGHT ON RECORD BY THE ASSESSING OFFICER. 2(B) IN DOING SO THE LD. CIT(A)-III, LUCKNOW HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE SAID PROPERTY WAS A JOINT FAMILY PROPERTY WITHOUT APPRECIATING THAT NO SUCH EVIDENCE COULD BE FURNISHED BY THE ASSESSEE BEFORE THE A.O. DESPITE SPECIFIC QUARRY AND ASSESSEE FAILED TO ESTABLISH THAT A PART OF RENT AS SHOWN IN THE SEIZED PAPER WAS IN RESPECT OF THE SHARE OF OTHER RELATIVES OF THE ASSESSEE. 3(A) THE LD. CIT(A)- III, LUCKNOW HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.2,40,210/-MADE BY THE A.O. ON ACCOUNT OF UNEXPLAINED CASH AND DRAFTS ON THE BASIS OF SEIZED PAPERS, WITHOUT APPRECIATING THE FACTS OF THE CASE AND MATERIAL BROUGHT ON RECORD BY THE ASSESSING OFFICER. 3(B) IN DOING SO THE LD. CIT(A)- III, LUCKNOW HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT THE SAID ADDITION WAS MADE ON THE BASIS OF THE DETAILS CONTAINED AT PAGE 27 OF THE ANNEXURE-A .SEIZED FROM THE RESIDENCE WHILE THE ASSESSEE FAILED TO EXPLAIN THE SOURCE OF INVESTMENT IN ACQUISITION OF CASH AND PURCHASE OF DRAFTS. :- 3 -: 4(A) THE LD. CIT(A)- III, LUCKNOW HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.62,66,748/- MADE BY THE A.O ON ACCOUNT OF UNEXPLAINED CASH TRANSACTIONS FOUND IN THE DIARY SEIZED FROM THE RESIDENCE OF THE ASSESSES , WITHOUT APPRECIATING THE FACTS OF THE CASE AND MATERIAL BROUGHT ON RECORD BY THE ASSESSING OFFICER. 7(B) IN DOING SO THE LD. C!T (APPEALS)-LLL, LUCKNOW HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE ASSESSEE COULD NOT BE ASKED TO EXPLAIN THE CONTENTS OF THE SAID PAPERS WHICH WERE NOT FOUND UNDER HIS POSSESSION WITHOUT APPRECIATING THAT THE SAID PAPERS WERE RECOVERED IN THE CASE OF THE ASSESSEE FROM HIS RESIDENCE SITUATED AT 183, CIVIL LINES, BIJNORE AND THE ONUS LAY UPON THE ASSESSEE TO ADDUCE EVIDENCE REGARDING THE OWNERSHIP AND CONTENTS OF THE SAID PAPERS. 8(A) THE LD. CIT(A)- III, LUCKNOW HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.2,44,579/- MADE BY THE A.O. ON THE BASIS OF THE SEIZED TRIAL BALANCE OF M/S. DURGA SHAKTI ENTERPRISES, WITHOUT APPRECIATING THE FACTS OF THE CASE AND MATERIAL BROUGHT ON RECORD BY THE ASSESSING OFFICER. 8(B) IN DOING SO THE LD. CIT(A)- III, LUCKNOW HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT THE ASSESSEE WAS HAVING 1/3 RD SHARE IN M/S. DURGA SHAKTI ENTERPRISES AND THE RECEIPT OF THE SAME, WITHDRAWN BY THE ASSESSEE FOR HIS PERSONAL EXPENSE WAS NOT DECLARED IN HIS RETURN. 9(A) THE LD. CIT(A)- III, LUCKNOW HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS. 16,12,900/- MADE BY THE A.O. ON ACCOUNT OF FRESH INFUSION IN THE SHARE CAPITAL OF M/S. U.P. LIME CHEMICALS LTD., WITHOUT APPRECIATING THE FACTS OF THE CASE AND MATERIAL BROUGHT ON RECORD BY THE ASSESSING OFFICER. :- 4 -: 9(B) IN DOING SO THE LD. CIT (APPEALS)-III, LUCKNOW HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT THE ASSESSEE WAS THE MAJOR CONTRIBUTING DIRECTOR OF M/S U.P. LIME CHEMICAL LTD. AS THE SEIZED PAPERS SHOWED THAT OUT OF THE TOTAL CONTRIBUTION OF RS.4.30 CRORES BY THE DIRECTORS IN THE SAID COMPANY, THE CONTRIBUTION OF THE ASSESSEE WAS RS. 1.85 CRORES AND, THEREFORE, THE A.O. WAS JUSTIFIED IN INFERRING THAT THE FRESH INFUSION OF CAPITAL OF RS.16,23,400/- IN THE NAMES OF VARIOUS PARTIES, WHICH DID NOT EXIST, WAS IN FACT, THE INVESTMENT MADE BY THE ASSESSEE OUT OF HIS OWN UNDISCLOSED SOURCES IN THE NAMES OF SUCH NON-EXISTENT PARTIES. 10(A) THE LD. CIT(A)-III, LUCKNOW HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.34,48,640/- MADE BY THE A.O. ON ACCOUNT OF UNEXPLAINED INVESTMENT IN THE SHARE CAPITAL OF M/S. BHEEM CEMENT LTD, WITHOUT APPRECIATING THE FACTS OF THE CASE AND MATERIAL BROUGHT ON RECORD BY THE ASSESSING OFFICER. 10(B) IN DOING SO THE LD. CIT(A)-III, LUCKNOW HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT AS PER THE LIST OF SHAREHOLDERS, THE INVESTMENT OF THE ASSESSEE IN OF THE ABOVE COMPANY WAS SHOWN AT RS.9.00,000/- WHEREAS THE TOTAL CONTRIBUTION OF THE ASSESSEE WAS ACTUALLY 44.25% OF THE TOTAL PAID UP CAPITAL OF THE COMPANY I.E RS.35,38,640/- AND THE ASSESSING OFFICER LIGHTLY ADDED THE DIFFERENCE OF RS.34,48,640/-I RS.35,38,640/- MINUS RS.90,000/-) AS UNEXPLAINED INVESTMENT IN THE SHARE CAPITAL OF M/S BHEEM CEMENT LTD. 11(A) THE LD. CIT(A)- III, LUCKNOW HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.64,87,790/- MADE BY THE A.O. ON ACCOUNT OF UNEXPLAINED INVESTMENT IN THE SHARE CAPITAL :- 5 -: OF M/S. U.P. ORGANICS LTD. WITHOUT APPRECIATING THE FACTS OF THE CASE AND MATERIAL BROUGHT ON RECORD BY THE ASSESSING OFFICER. 11(B) IN DOING SO THE LD. CIT(A)- III, LUCKNOW HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT THE ASSESSEE HAD SHOWN HIS OWN INVESTMENT IN M/S. U.P. ORGANICS LTD AT RS.2,68,010/- IN HIS OWN NAME AND RS.99,500/- IN THE NAME OF HIS WIFE WHEREAS AS PER DETAILS CONTAINED IN SEIZED DOCUMENT AT PAGE 1 TO 9 OF THE ANNEXURE, TOTAL CONTRIBUTION OF THE ASSESSEE IN THE SHARE CAPITAL OF THE SAID COMPANY WAS RS.68,55,300/-, BEING 26.34% OF TOTAL PAID UP CAPITAL OF THE COMPANY, WHOSE SOURCE COULD NOT BE EXPLAINED BY THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS GRID THE ASSESSING OFFICER RIGHTLY ADDED THE DIFFERENCE OF RS.64,87,790/- AS UNEXPLAINED INVESTMENT OF THE ASSESSEE IN THE SHARE CAPITAL OF M/S. U.P. ORGANICS LTD. 12. THE LD. CIT(A)- III, LUCKNOW HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.80,85,870/- MADE BY THE A.O. ON PROTECTIVE BASIS ON ACCOUNT OF UNEXPLAINED INVESTMENT IN THE NAMES OF OTHER DIRECTORS IN THE SAID COMPANY, WITHOUT APPRECIATING THE FACT THAT INVESTMENT MADE BY OTHER PROMOTERS 7 DIRECTORS UP TO RS.80,85,870/- COULD NOT BE EXPLAINED BY ASSESSEE AND EVEN THE OTHER DIRECTORS COULD NOT BE PRODUCED BEFORE THE ASSESSING OFFICER FOR EXAMINATION. 13(A) THE LD. CIT(A)-III, LUCKNOW HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.4,02,118/- MADE BY THE A.O. ON THE BASIS OF SEIZED PAPERS ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PURCHASE OF SOFT DRINK MATERIAL BY THE ASSESSEE, WITHOUT APPRECIATING THE FACTS OF THE CASE AND MATERIAL BROUGHT ON RECORD BY THE ASSESSING OFFICER. :- 6 -: 13(B) IN DOING SO THE LD. CIT(A)-III, LUCKNOW HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT THE ASSESSEE HAS FAILED TO EXPLAIN SHE SOURCE OF SAID INVESTMENT, WHEREAS ALL THE PURCHASE VOUCHERS WERE FOUND AT THE RESIDENCE OF THE ASSESSEE. 14(A) THE LD. CIT(A)-III, LUCKNOW HAS ERRED IN LAW AND EN FACTS IN DELETING THE ADDITION OF RS.2,51,000/- MADE BY THE A.O. ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS IN BIJNORE COOPERATIVE BANK BY SMT TEJESHWARI SINGH, THE WIFE OF THE ASSESSEE, WITHOUT APPRECIATING THE FACTS OF THE CASE AND MATERIAL BROUGHT ON RECORD BY THE ASSESSING OFFICER. 14(B) IN DOING SO THE LD. CIT(A)-III, LUCKNOW HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT SMT TEJESHWARI SMGH THE WIFE OF THE ASSESSEE WAS NOT HAVING ANY INDEPENDENT SOURCE OF INCOME AND THE ASSESSING OFFICER RIGHTLY ADDED THE SAID CASH DEPOSITS AS UNEXPLAINED INCOME OF THE ASSESSEE. 15(A) THE LD. CIT(A)-III, LUCKNOW HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.1,54,250/- MADE BY THE A.O. ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS IN THE CASH BOOK FOUND AT 6-B PARK ROAD LUCKNOW , WITHOUT APPRECIATING THE FACTS OF THE CASE AND MATERIAL BROUGHT ON RECORD BY THE ASSESSING OFFICER. 15(B) IN DOING SO THE LD. CIT(A)- III, LUCKNOW HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE FACT THAT THE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF SUCH DEPOSITS MADE BY THE ASSESSEE IN THE SAID CASH BOOK AND THE ASSESSING OFFICER RIGHTLY ADDED THE SAID CASH DEPOSITS AS UNEXPLAINED INCOME OF THE ASSESSEE. 16. THE LD. CIT(A)- III, LUCKNOW HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF PS.50,000/- MADE BY THE A.O. ON :- 7 -: ACCOUNT OF UNEXPLAINED CASH DEPOSITS IN THE CASH HOOK OF MANSAROVAR SAHKAN AVAS SAMITI LTD ON 23.07.1998 WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF SUCH DEPOSITS AND THE ASSESSING OFFICER RIGHTLY ADDED THE SAID CASH DEPOSITS AS UNEXPLAINED INCOME OF THE ASSESSEE. 17(A) THE LD. CIT (APPEALS)-III, LUCKNOW HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE A.O. TO DELETE THE ADDITION OF RS.41,02,981/- AFTER VERIFICATION WITHOUT APPRECIATING THAT THE SAID ADDITION WAS MADE BY THE A.O. ON ACCOUNT OF THE FAILURE OF THE ASSESSEE TO EXPLAIN THE SOURCE OF DEPOSITS APPEARING IN THE BANK ACCOUNT NO.5 IN BIJNOR URBAN COOPERATIVE BANK DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS. 17(A) IN DOING SO THE LD. CIT (APPEALS)-III, LUCKNOW WHILE RESTORING THE MATTER FOR VERIFICATION TO THE A.O. HAS ERRED IN LAW AND ON FACTS IN RESTRICTING THE SCOPE OF ENQUIRY TO BE MADE BY THE A.O. AT THE TIME OF VERIFICATION. 18(A) THE LD. CIT(A)- III, LUCKNOW HAS ERRED IN LAW AND ON FACT IN HOLDING THAT AN AMOUNT OF RS.1,70,531/- HAS BEEN RECEIVED BY THE ASSESSEE ON ACCOUNT OF THE AGRICULTURAL INCOME, WITHOUT APPRECIATING THE FACTS OF THE CASE AND MATERIAL BROUGHT ON RECORD BY THE ASSESSING OFFICER. 18(B) IN DOING SO THE LD. CIT(A)-III, LUCKNOW HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT THE ASSESSEE COULD NOT PRODUCE ANY DOCUMENTARY EVIDENCE IN SUPPORT OF THE ALLEGED AGRICULTURAL INCOME BEFORE THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 18(C) IN DOING SO THE LD. CIT(A)-III, LUCKNOW HAS ERRED IN LAW AND ON FACTS IN ADMITTING THE FRESH EVIDENCE IN VIOLATION TO :- 8 -: THE CONDITIONS LAID CLOWN IN RULES 46A OF THE INCOME TAX RULES ,1962. 19(A) THE LD. CIT(A)- III, LUCKNOW HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE A.O. TO VERIFY THE AMOUNTS OF RS.1,76,645/- ON ACCOUNT OF LIC RECEIPTS AND THE AMOUNT OF RS. 1,80,000/- STATED TO HAVE BEEN RECEIVED FROM SIX PERSONS AND SIMILARLY AMOUNTS ON ACCOUNT OF CASH DEPOSITS AMOUNTING TO RS.6,27,312/-, WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAD FAILED TO EXPLAIN THE SOURCE OF ACQUISITION OF THESE AMOUNTS DURING THE ASSESSMENT PROCEEDINGS DESPITE SEVERAL OPPORTUNITIES PROVIDED BY THE A.O. 20(A) THE LD. CIT(A)- III, LUCKNOW HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.1,30,430/- MADE ON ACCOUNT OF UNEXPLAINED CASH FOUND AT THE RESIDENCE OF THE ASSESSEE AT KOTHI ANTAGHAR, BIJNORE, WITHOUT APPRECIATING THE FACTS OF THE CASE AND MATERIAL BROUGHT ON RECORD BY THE ASSESSING OFFICER. 20(B) IN DOING SO THE LD. CIT(A)- III, LUCKNOW HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE FACT THAT THE ASSESSEE HAS FAILED TO EXPLAIN THE SOURCE OF ACQUISITION OF THE CASH DURING THE ASSESSMENT PROCEEDINGS. 21. THAT THE ORDER THE LD. CIT(A)- III, LUCKNOW BEING ERRONEOUS IN LAW AND ON FACTS BE VACATED AND THE ORDER OF THE ASSESSING OFFICER BE RESTORED. GROUNDS IN I.T.A. NO.530/LKW/2005: BY THE ASSESSEE: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) -III, LUCKNOW (HERE IN AFTER REFERRED TO AS THE LEARNED CIT (A)'S) ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF :- 9 -: RS.19,800/- AS THE APPELLANT'S UNDISCLOSED INCOME BY HOLDING 'HOWEVER, THE FACTS REMAINS THAT DR. NEERAJ HAS ADMITTED TO PAYING RENT OF RS.1,200/-' TO SHRI PIYUSH KUMAR IN VIEW OF THE ASSESSEE. IN SUCH CIRCUMSTANCES I ACCEPT THE RENT OF RS.1,200/- PER MONTH, WHICH IS SIMILAR TO OTHER SHOPS IN THE SAME COMPLEX, HALF OF THE SAID AMOUNT IS TAKEN TO BE PER MONTH INCOME OF THE ASSESSEE FROM 1ST FEBRUARY, 1999. 2. ON THE FACTS AND IN THE PECULIAR CIRCUMSTANCES OF THE PRESENT CASE, THE LEARNED CIT (A) WAS NOT AT ALL JUSTIFIED IN CONFIRMING RS.19,800/-AS THE APPELLANT'S UNDISCLOSED INCOME FOR THE BLOCK PERIOD. 3. IN CONFIRMING THE ADDITION OF RS.19,800/- THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THERE WAS NO MATERIAL SEIZED IN THE COURSE OF SEARCH ON THE BASIS OF WHICH ANY PART OF ALLEGED AMOUNT COULD AT ALL BE CONSIDERED AS THE APPELLANT'S UNDISCLOSED INCOME. 4. THE LEARNED CIT (A) ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS.50,110/- AS THE ALLEGED INVESTMENT BY THE APPELLANT IN M/S KALACHANDRA LEASING AND FINANCE COMPANY LTD DURING THE BLOCK PERIOD. 5. IN CONFIRMING THE ADDITION OF RS.50,110/-THE LEARNED CIT (A) ERRED ON FACTS AND IN LAW IN NOT APPRECIATING THAT THERE WAS NO MATERIAL AT ALL BEFORE THE LEARNED AO SEIZED IN THE COURSE OF SEARCH, NOR ANY MATERIAL IN THE HANDWRITING OF THE APPELLANT OR BEARING HIS SIGNATURE TO COME TO A CONCLUSION THAT ANY PART OF INVESTMENT IN M/S KALACHANDRA LEASING AND FINANCE COMPANY LTD WAS MADE BY THE APPELLANT OUT OF UNDISCLOSED INCOME AND THAT TOO IN THE BLOCK PERIOD AND HENCE THE ADDITION SO MADE BE ORDERED TO BE DELETED. 6. ON THE FACTS AND IN THE PECULIAR CIRCUMSTANCE AND THE WRITTEN SUBMISSIONS MADE, THE LEARNED CIT(A)'S WAS NOT AT ALL JUSTIFIED :- 10 -: IN CONFIRMING THE ADDITION OF RS.50,110/- AS THE APPELLANTS UNDISCLOSED INCOME BY ALLEGEDLY HOLDING THAT THE ASSESSEE HAS ONLY BEEN ABLE TO SUBMITTED EVIDENCE REGARDING RS.10,000/- AND FOR BALANCE HE HAS BEEN UNABLE TO GIVE THE DATES OF INVESTMENT, THOUGH SUCH INVESTMENT WAS WITHIN THE PERSONAL KNOWLEDGE OF THE ASSESSEE WHICH HE HAS CHOSEN NOT TO DIVULGE. 7. THE LEARNED CIT (A) ERRED ON FACTS AND IN LAW CONFIRMING THE ADDITION OF RS.26,100/- (WRONGLY STATED AS RS.28,100/-) AS THE UNDISCLOSED INCOME OF THE APPELLANT FOR THE BLOCK PERIOD, AS THERE WAS NO MATERIAL TO SHOW THAT THE CREDITS APPEARING IN THE BANK ACCOUNT OF KM. SHIPRA SINGH WAS ON ACCOUNT OF APPELLANT'S UNDISCLOSED INCOME. 8. ON THE FACTS AND IN THE PECULIAR CIRCUMSTANCES SPECIALLY KEEPING IN VIEW THE FACTS THAT THE ACCOUNT IN WHICH THE CREDIT WAS APPEARING WAS THAT OF THE APPELLANT'S DAUGHTER WHO USED TO DEPOSIT THE AMOUNT OUT OF HER EARNING AND SAVING OUT OF TEMPORARY ASSIGNMENTS DONE BY HER, THE LEARNED CIT(A) WAS NOT AT ALL JUSTIFIED IN CONFIRMING THE ADDITION OF RS.26,100/- AS THE APPELLANTS UNDISCLOSED INCOME FOR THE BLOCK PERIOD. 9. THE LD. CIT (APPEALS) ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS.24,750/- AS THE APPELLANT'S UNDISCLOSED INCOME. 10. IN CONFIRMING THE ADDITION OF RS.24,750/- IN THE PRESENT CASE THE LD. CIT (APPEALS) ERRED ON FACTS AND IN LAW IN NOT PROVIDING THE APPELLANT ANY OPPORTUNITY TO HAVE ITS SAY OR MAKE COMPLIANCE OF THE REASONS RELIED UPON BY HIM IN SO CONFIRMING THE ADDITION. 11. ON THE FACTS AND IN THE PECULIAR CIRCUMSTANCES THE LD. CIT (APPEALS) WAS NOT AT ALL JUSTIFIED IN CONFIRMING THE ADDITION OF RS.24,750/- BY DRAWING A RECONCILIATION OF FIGURES RELATING TO M/S DURGA SHAKTI ENTERPRISES SEPARATELY ASSESSED TO TAX, AS THE :- 11 -: UNDISCLOSED INCOME OF THE APPELLANT IN THE PRESENT CASE. 12. THE LD. CIT (APPEALS) ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS.2,87,500/- AS THE APPELLANT'S UNDISCLOSED INCOME OF THE APPELLANT FOR THE BLOCK PERIOD. 13. ON THE FACTS AND IN THE PECULIAR CIRCUMSTANCES OF THE PRESENT CASE SPECIALLY KEEPING IN VIEW THE FACTS THAT AFFIDAVITS WERE FILED BY THE APPELLANT OF THE INDIVIDUALS WHO HAD ADVANCED THE RESPECTIVE SUMS AGGREGATING RS.2,87,500/- THE COPY OF WHICH WERE FORWARDED TO THE A.O. ON REMAND AND NO OTHER MATERIAL WAS BROUGHT ON RECORD TO SHOW THAT THE DEPOSITS WERE THE APPELLANT'S UNDISCLOSED INCOME, THE LD. C1T ( APPEALS) WAS NOT AT ALL JUSTIFIED IN CONFIRMING THE SAID ADDITION IN THE PRESENT CASE. 14. THE LD. CIT ( APPEALS) ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS.2,77,500/- AS THE APPELLANT'S UNDISCLOSED INCOME BY ALLEGEDLY HOLDING THAT NO EXPLANATION HAS BEEN OFFERED. 15. THE LD. CIT(APPEALS) ERRED ON FACTS AND IN LAW IN NOT APPRECIATING THAT THE APPELLANT HAD THROUGH LETTER REQUESTED THE A.O. TO ISSUE SUMMONS RELATING TO RECEIPTS CREDITED IN THE ACCOUNT FROM DIFFERENT INDIVIDUALS AGGREGATING RS.2,87,500/- AND RS.2,77,500/- WHO WERE TO BE PRODUCED AT THE APPELLANT'S COST, TO WHICH THE A.O. DID NOT REACT AND SO THE LD. CIT (APPEALS) WAS NOT JUSTIFIED IN CONFIRMING THE SAID TWO ADDITIONS AS THE APPELLANT'S UNDISCLOSED INCOME IN THE PRESENT CASE. 16. THE LD. CIT (APPEALS) ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS.2,87,500/-, RS.2,77,500/-, AND RS.24,750/- IN THE PRESENT CASE WITHOUT APPRECIATING THE FACTS THAT NO DOCUMENT RELATING TO THE BANK ACCOUNT WAS FOUND OR SEIZED IN THE COURSE OF SEARCH AND HENCE FOR THE REASON ALONE THE ADDITION IS BAD IN LAW AND SO BE ORDERED TO BE DELETED. :- 12 -: 17. THE LD. CIT ( APPEALS) ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS. 3,96,310/- BEING THE VALUE OF $11,000/- CONFIRMED TO HAVE BEEN SPENT BY DR. ARVIND SINGH APPELLANT'S BROTHER ON THE APPELLANT'S MEDICAL EXPENSES AND NON RESIDENT INDIAN, CERTIFICATE SUPPORTED WITH AFFIDAVIT FROM WHOM WAS ALSO FILED, AS THE APPELLANT'S UNDISCLOSED INCOME FOR THE BLOCK PERIOD. 18. ON THE FACTS AND IN THE PECULIAR CIRCUMSTANCES OF THE PRESENT CASE, THE LD. CIT (APPEALS) WAS NOT AT ALL JUSTIFIED IN NOT GIVING ANY OPPORTUNITY BEFORE DISBELIEVING THE CERTIFICATE AND AFFIDAVIT AND SO WAS NOT AT ALL JUSTIFIED IN CONFIRMING THE ADDITION RELATING TO $ 11,000/- AS THE APPELLANT'S UNDISCLOSED INCOME FOR THE BLOCK PERIOD. WITHOUT PREJUDICE TO ALL THE GROUNDS TAKEN ABOVE. 19. THE LD. CIT (APPEALS) ON PECULIAR FACTS AND CIRCUMSTANCES ERRED ON FACTS AND IN LAW IN NOT QUASHING THE BLOCK ASSESSMENT ORDER PASSED IN THE PRESENT CASE AS THE LD. A.O. NEVER ACQUIRED A LEGAL OR A VALID JURISDICTION TO ISSUE NOTICE OR TO PASS ANY ORDER IN THE PRESENT CASE, BECAUSE THE ALLEGED ORDER STATED TO HAVE BEEN PASSED U/S 127 OF THE I.T, ACT, 1961 WAS ILLEGAL, BAD IN LAW, VOID AB INITIO AND WITHOUT AFFORDING ANY OPPORTUNITY TO THE APPELLANT. 20. ON THE FACTS AND IN THE PECULIAR CIRCUMSTANCES OF THE PRESENT CASE AS THE ALLEGED ORDER STATED TO HAVE BEEN PASSED U/S 127 OF THE ACT PURPORTEDLY TRANSFERRING THE APPELLANT'S CASE FROM BIJNOR TO LUCKNOW WITHOUT AFFORDING ANY OPPORTUNITY TO THE APPELLANT IS ILLEGAL, BAD IN LAW AND VOID AB INITIO AND SO THE LD. A.O AT LUCKNOW DID NOT ACQUIRE ANY LEGAL OR VALID JURISDICTION TO ASSESS THE APPELLANT IN THE PRESENT CASE, HENCE THE BLOCK ASSESSMENT ORDER PASSED IN THE PRESENT CASE BEING WITHOUT JURISDICTION OUGHT TO HAVE BEEN QUASHED. :- 13 -: 21. THE LD. CIT (APPEALS) ERRED ON FACTS AND IN LAW IN HOLDING THAT THE LEGAL ISSUE REGARDING JURISDICTION ARISING OUT OF ALLEGED ORDER PASSED U/S 127 OF THE ACT CANNOT BE LOOKED INTO BY THE CIT (APPEALS) ERRED ON FACTS AND IN LAW IN NOT PROPERLY DISPOSING OF THE SAID GROUND AND THUS WAS NOT AT ALL JUSTIFIED IN REJECTING THE APPELLANT'S CONTENTION. 2. DURING THE COURSE OF HEARING, OUR ATTENTION WAS INVITED THAT THESE APPEALS WERE FILED IN 2005. THEREAFTER NUMEROUS NOTICES OF HEARING WERE ISSUED TO THE ASSESSEE AND SOMETIME ASSESSEES REPRESENTATIVE APPEARED AND SOUGHT ADJOURNMENT. IT HAS BEEN BROUGHT TO THE NOTICE OF THE BENCH BY SHRI. B.P. YADAV, ADVOCATE, WHO APPEARED BEFORE THE LD. CIT(A) ON BEHALF OF THE ASSESSEE THAT HE MADE HIS ALL EFFORTS TO CONTACT THE ASSESSEE ON THE LAST KNOWN ADDRESS, BUT HE WAS NOT ABLE TO TRACE OUT THE WHEREABOUTS OF THE ASSESSEE. 3. THE LD. D.R. HAS ALSO SUBMITTED THAT THE ASSESSEE IS NOT TRACEABLE AT THE LAST KNOWN ADDRESS, THEREFORE, NO PURPOSE WOULD BE SERVED TO KEEP THE APPEALS PENDING AND ISSUING NOTICES TO THE ASSESSEE. THE LD. D.R. HAS FURTHER CONTENDED THAT THE LD. CIT(A) HAS ADJUDICATED THE APPEAL FILED BEFORE HIM SUMMARILY WITHOUT DEALING WITH THE ISSUES ON MERIT. THEREFORE, IN THE INTEREST OF JUSTICE, THE ORDER OF THE LD. CIT(A) MAY BE SET ASIDE AND THE MATTER BE REMANDED BACK TO HIM WITH A DIRECTION TO ADJUDICATE THE ISSUES ON MERIT AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, IF POSSIBLE, AS NONE IS APPEARING ON BEHALF OF THE ASSESSEE DESPITE VARIOUS NOTICES. 4. KEEPING IN VIEW THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT THESE APPEALS WERE FILED IN 2005 AND THEREAFTER NO EFFORT WAS MADE BY THE ASSESSEE AS WELL AS THE REVENUE TO GET THE APPEALS DISPOSED OF. NOW THE ASSESSEE HAS ALSO :- 14 -: STOPPED APPEARING BEFORE THE TRIBUNAL DESPITE VARIOUS NOTICES ISSUED TO HIM. IT HAS ALSO BEEN BROUGHT TO THE NOTICE OF THE TRIBUNAL BY THE LD. D.R. THAT THE ASSESSEE IS NOT AVAILABLE AT THE LAST GIVEN ADDRESS, THEREFORE, NO PURPOSE WOULD BE SERVED BY ISSUING NOTICES TO HIM. THE LD. D.R. HAS ALSO CONTENDED THAT THE ORDER OF THE LD. CIT(A) IS CRYPTIC, AS HE HAS NOT DEALT WITH THE ISSUES ON MERIT. THEREFORE, IN THE INTEREST OF JUSTICE, THE MATTER MAY BE RESTORED BACK TO THE LD. CIT(A) FOR ADJUDICATING THE ISSUES ON MERIT. FINDING FORCE IN THE CONTENTIONS OF THE LD. D.R., WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO ADJUDICATE THE ISSUES ON MERIT AFTER AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, IF POSSIBLE. ACCORDINGLY THESE APPEALS ARE DISPOSED OF. 5. IN THE RESULT, APPEAL OF THE ASSESSEE AS WELL AS THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:19 TH NOVEMBER, 2014 JJ:1111 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR