Sh. Kapoor Singh, Bhiwani V. ACIT, Bhiwani

ITA 5046/DEL/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97371 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 10 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-09-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 07-09-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 11-11-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SULEKHA VERMA
• Assessee Lawyers: NK JAIN
• Keywords: Gift; Search and seizure; Peak credit; Assessment record
• Section: 132

Judgement Text

1 ITA NO. 5044,5045,5046,5047/DEL/11 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: D NEW DELHI BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE , JUDICIAL MEMBER I.T.A .NO.-5044/D EL/2011 (A.Y 2000-01) I.T.A .NO.-5045/D EL/2011 (A.Y 2001-02) I.T.A .NO.-5046/D EL/2011 (A.Y 2002-03) I.T.A .NO.-5047/D EL/2011 (A.Y 2003-04) KA POOR SINGH 89-90, M. C. COLONY CH. DADRI BHIWANI AWZPS5433L (APPELLANT) VS ACIT INCOME TAX OFFICE CITY CENTRE, HUDA PARK BHIWANI (RESPONDENT) APPELLANT BY SH. N. K. JAIN, ADV RESPONDENT BY MS. SULEKHA VERMA, CIT DR ORDER PER SUCHITRA KAMBLE, JM THESE APPEALS ARE FILED BY THE ASSESSEE AGAINST THE COMMON ORDER DATED 29/8/2011 PASSED BY LD. CIT(A) ROHTAK F OR ASSESSMENT YEAR (AY) 2000-2001, 2002-2003, 2003-2004 AND 2004- 2005. DATE OF HEARING 07.09.2015 DATE OF PRONOUNCEMENT 15.09.2015 2 ITA NO. 5044,5045,5046,5047/DEL/11 2. THE GROUNDS OF APPEAL FOR A.Y. 2000-01 ARE AS FO LLOWS: 1. THAT THE LD. CIT(A) IN THE FACTS & CIRCUMSTANCES O F THE CASE IN LAW IS CONFIRMING THE ADDITION OF RS.10,15, 200 AS PEAK DEPOSIT ON 3.1.2000 AS PER ENTRIES IN THE PASS BOOK SEIZED FROM RESIDENCE OF THE APPELLANT PERTAINING TO A/C NO. 16 860 OF SHRI SUBE SINGH TREATING IT AS BE-NAMI A/C OF THE APPELL ANT WITHOUT THERE BEING ANY MATERIAL FOR SO TREATING. 2. THAT THE LD. CIT(A) HAS ERRED IN LAW IN UPHOLDIN G THE ACTION OF CHARGING THE INTEREST U/S 234A, 234B, 234 C. THE GROUNDS OF APPEAL FOR A.Y. 2002-03 ARE AS FOLLO WS: 1. THAT THE LD. CIT(A) IN THE FACTS & CIRCUMSTANCES O F THE CASE HAS ERRED IN LAW IS CONFIRMING THE ADDITION OF RS.10,40,265/- AS PEAK DEPOSIT ON 6/3/2002 AS PER E NTRIES IN THE PASS BOOK SEIZED FROM RESIDENCE OF THE APPELLAN T PERTAINING TO A/C NO. 16860 OF SHRI SUBE SINGH TREATING IT AS BE-NAMI A/C OF THE APPELLANT WITHOUT THERE BEING ANY MATERIAL F OR SO TREATING. 2. THAT THE LD. CIT(A) HAS ERRED IN LAW IN UPHOLDIN G THE ACTION OF CHARGING THE INTEREST U/S 234A, 234B, 234 C. THE GROUNDS OF APPEAL FOR A.Y. 2003-04 ARE AS FOLLO WS: 1. THAT THE LD. CIT(A) HAS ERRED IN LAW IN CONFIRMING THE ADDITION OF RS.297000/- ON THE BASIS OF SOME FIGURE S RECORDED 3 ITA NO. 5044,5045,5046,5047/DEL/11 WITHOUT ANY NARRATION ON A PAPER FOUND IN THE COURS E OF SEARCH WITHOUT ANY MATERIAL TO TREAT IT AS INCOME. 2. THAT THE LD. CIT(A) HAS ERRED IN LAW IN UPHOLDIN G THE ACTION OF CHARGING THE INTEREST U/S 234A, 234B, 234 C. THE GROUNDS OF APPEAL FOR A.Y. 2004-05 ARE AS FOLLO WS: 1. THAT THE LD. CIT(A) HAS ERRED IN LAW IN CONFIRMING THE ADDITION OF RS.118000/- ON THE BASIS OF SOME FIGURE S RECORDED WITHOUT ANY NARRATION ON A PAPER FOUND IN THE COURS E OF SEARCH WITHOUT ANY MATERIAL TO TREAT IT AS INCOME. 2. THAT THE LD. CIT(A) HAS ERRED IN LAW IN UPHOLDIN G THE ACTION OF CHARGING THE INTEREST U/S 234A, 234B, 234 C. 3. THE ASSESSEE WAS EMPLOYED AS SUPERVISOR IN IRRIG ATION DEPARTMENT. THERE WAS SEARCH AND SEIZURE OPERATION CONDUCTED ON 4/3/2005 AT THE RESIDENTIAL PREMISES OF THE ASSESSE E. THE ASSESSMENTS RELEVANT TO THE SEARCH PERIOD I.E. A.Y. 1999-2000 TO 2005-2006 WERE COMPLETED BY ASSESSING OFFICER (AO) UNDER SECTION 153A/143(3) OF THE INCOME TAX ACT, 1961 VIDE ORDER DATED 9.12.2006. THE CIT(A) DISMISSED THE APPEALS OF THE ASSESSEE FOR NON-PROSECUTION ON 22.08.2008 WHICH WERE RESTORED B Y THE ITAT, DELHI BENCHES VIDE ORDER DATED 31.07.2009. THE CIT( A) VIDE ORDER DATED 16.03.2010 DISPOSED OF THE SAID APPEALS BY GR ANTING CERTAIN RELIEFS. AGAINST THE SAID ORDER, THE ASSESSEE APPRO ACHED ITAT, DELHI AND THE ITAT RESTORED THE APPEALS TO CIT(A) FOR RE- ADJUDICATION VIDE ORDER DATED 25.06.2010. THE CIT(A) DISMISSED THE AP PEALS VIDE 4 ITA NO. 5044,5045,5046,5047/DEL/11 ORDER DATED 29.08.2011 OF THE ASSESSEE. THE ASSESSE E FILED APPEAL AGAINST THE SAID ORDER DATED 29.08.2011. ON 12.01.2 012 THE MATTER WAS DISMISSED AND THE SAME WAS RECALLED VIDE ORDER DATED 05.03.2012. HENCE THIS APPEAL. 4. THE FACTUAL MATRIX OF THE CASE IS THAT DURING TH E SEARCH AND SEIZURE CONDUCTED ON 04.03.2005 AT THE RESIDENCE OF THE ASSESSEE, PASSBOOK OF SHRI SUBE SINGH (A/C NO. 16860) WAS FOU ND. STATEMENT OF THE ASSESSEE WAS RECORDED DURING THE SEARCH. THE ASSESSEE HAS ONE BANK ACCOUNT IN OBC, CH. DADRI PERTAINING TO HI S SALARY DEPOSITS. THE ASSESSEE AT THE TIME OF SEARCH STATED THAT NEITHER HE NOR HIS FAMILY MEMBERS HAVE ANY CONNECTION WITH THE SAID BANK ACCOUNT NO. 16860. THE ASSESSES ALSO STATED THAT HE OR HIS SONS HAS NEVER TAKEN ANY GIFT OR LOAN FROM THE SAID MR. SUBE SINGH. THE ASSESSEE WAS CONFRONTED DURING THE SEARCH THAT THER E WERE WITHDRAWALS IN HIS AND HIS SONS NAMES FROM THE SAI D ACCOUNT BUT HE STATED THAT HE COULD NOT EXPLAIN THE SAME AND ON LY HIS ADVOCATE WILL BE ABLE TO TELL ABOUT IT. AFTER LOOKING UP TO THE EVIDENCE ON RECORD AND THE STATEMENT OF THE ASSESSEE, THE ASSES SING OFFICER ADDED RS. 10,15,200/- FOR A.Y. 2000-2001 AND RS. 10 ,40,265/- FOR A.Y. 2002-2003 IN RESPECT OF DEPOSITS IN SHRI SUBE SINGHS ACCOUNT AS WELL AS RS. 2,97,000/- FOR A.Y. 2003-2004 AND RS . 1,18,000/- IN RESPECT OF AMOUNTS MENTIONED IN CODE . 5 ITA NO. 5044,5045,5046,5047/DEL/11 5. THE STAND OF THE ASSESSEE BEFORE THE CIT(A) WAS THAT THE FUNDS IN THE BANK ACCOUNT BELONG TO SHRI. SUBE SINGH FROM WHICH THE ASSESSEE AND HIS TWO SONS HAVE TAKEN SOME AMOUNTS A S LOAN FOR INVESTMENT IN PROPERTIES WHICH WERE SUBSEQUENTLY RE PAID TO SH. SUBE SINGH ON DEMAND BY DISPOSING THE PROPERTIES SO ACQUIRED. 6. AS RELATES TO GROUND NO. 1 OF THE ASSESSEES APP EAL FOR A.Y. 2000-2001 AND A.Y. 2002-2003, THE ASSESSEE IS AGGRI EVED BY THE FINDING OF THE CIT(A) MORE SPECIFICALLY MENTIONED IN PARA 5.6 AND 5.7. THE CIT(A) HELD THAT THE ASSESSEE COULD NOT P RODUCE EVIDENCE REGARDING THE REPAYMENT OF ALLEGED LOANS TO SHRI SU BE SINGH. THE STATEMENT OF SHRI SUBE SINGH TAKEN AFTER THE SEARCH PROCEEDINGS STATED THAT HE KNEW SHRI KAPOOR SINGH I.E. THE ASSE SSEE AND HIS SONS BUT NO GIFT OR LOAN HAS EVER BEEN MADE BY HIM TO THEM. THE CIT(A) FURTHER HELD THAT THE BANK ACCOUNT OF SHRI S UBE SINGH CONTAINS HUGE CASH DEPOSITS WITHDRAWALS, MORE PARTI CULARLY FOR THE A.Y 2000-01 IS RS.10,15,200 ON 31/1/2000 AND THAT FOR A.Y 2002- 03 RS.20,55,465 ON 6/3/2004 IN THE NAME OF KAPOOR S INGH. THE STAND OF THE ASSESSEE WAS THAT THE FUNDS IN THE BAN K ACCOUNT BELONG TO SHRI SUBE SINGH FROM WHICH THE ASSESSEE A ND HIS TWO SONS HAVE TAKEN SOME AMOUNTS AS LOAN FOR INVESTMENT IN PROPERTIES WHICH WERE SUBSEQUENTLY REPAID TO SHRI SUBE SINGH O N DEMAND BY DISPOSING THE PROPERTY SO ACQUIRED. THE DETAILS OF CHEQUES ISSUED TO THE ASSESSEE AND HIS TWO SONS FROM THE BANK ACCOUNT OF SHRI SUBE 6 ITA NO. 5044,5045,5046,5047/DEL/11 SINGH WAS FURNISHED BY ASSESSEE BEFORE CIT(A) AS W ELL AS THE INVESTMENT MADE THERE FROM WHICH ARE REPRODUCED HER EUNDER:- SH. KAPOOR SINGH 09.03.2000 RS. 15000/- 29.01.2004 RS. 200000/- 215000/- SH. VIKASH S/O SH. KAPOOR SINGH 01.09.2003 RS.200000/- 13.10.2003 RS.600000/- 800000/- SH. RAJEEV S/O SH. KAPOOR SINGH 17.09.2001 RS. 20000/- 15.01.2002 RS. 260000/- 12.09.2002 RS. 200000/- 10.11.2003 RS. 900000/- 25.11.2003 RS. 50000/- 1430000/- VIKASH & RAJEEV PURCHASED LAND BY INVESTING MONEY R ECEIVED FROM SHRI SUBE SINGH FOR PURCHASE OF LAND 04.09.2003 RS. 179000/- 13.10.2003 RS. 782250/- 11.01.2003 RS. 304000/- RS. 4235000/- 16,88,750/- 7. THE CIT(A) HELD THAT THE ASSESSEE COULD NOT PROD UCE ANY EVIDENCE REGARDING THE REPAYMENT OF ALLEGED LOANS T O SHRI SUBE SINGH. THE CONTENTION OF THE ASSESSEE THAT THE FUND S BELONGED TO SHRI SUBE SINGH WAS REJECTED BY THE CIT(A). DURING THE ASSESSMENT PROCEEDINGS THE ASSESSEE CHANGED THE VERSION THAT H E AND HIS SONS HAVE TAKEN LOANS FROM SHRI SUBE SINGH. 7 ITA NO. 5044,5045,5046,5047/DEL/11 8. THE AR SUBMITTED THAT THE ASSESSEE HAS CLEARLY S TATED THAT THERE WAS NO GIFT GIVEN BY SHRI SUBE SINGH TO HIM. THE PASS BOOK WHICH WAS FOUND IN HIS RESIDENCE WAS KEPT BY SHRI S UBE SINGH. THE ASSESSEE ADMITTED THAT HE KNOWS SHRI SUBE SINGH AND FOR PARTICULAR LAND TRANSACTION HE HAS TAKEN CERTAIN MO NEY ALONG WITH HIS SONS WHO WERE ALSO ASSESSED SEPARATELY BUT WAS NOT TAXED. THE ASSESSEE FURTHER STATED THAT HE HAS NEVER OPERATED SHRI SUBE SINGH ACCOUNT AT ANY POINT OF TIME. FOR THE SAID PURPOSE HE HAS MADE THE RELIANCE ON THE BANK INFORMATION POINT NO. 3 THAT A LL THE WITHDRAWALS AND CHEQUES WERE SIGNED BY THE ACCOUNT HOLDER/PHOTO COPY OF ACCOUNT STATEMENT ATTACHED. IN SHRI SUBE S INGHS LETTER DATED 26/12/2007 IT WAS MENTIONED THAT THE AMOUNT D EPOSITED IN BANK WAS HIS PERSONAL AMOUNT. THERE WAS ASSESSMENT ORDER IN CASE OF SHRI SUBE SINGH WHICH WAS DROPPED BECAUSE T HE SAME WAS TIME BARRED. THE AR FURTHER SUBMITTED THAT THERE W AS NO RECORD BEFORE THE ASSESSING OFFICER THAT THE ACCOUNT BELON GS TO THE ASSESSEE AND THEREFORE, THE AMOUNT SHOWN IN THAT AC COUNT CANNOT BE HELD AS INCOME OF THE ASSESSEE. THERE ARE ONLY TWO WITHDRAWALS IN THE NAME OF THE ASSESSEE ONE IS ON 9/3/2000 WHIC H AMOUNTS TO 15,000/- AND THE SECOND ONE IS ON 29/1/2004 AMOUNTI NG TO RS. 2,00,000/-. THE REST WITHDRAWALS ARE IN THE NAME O F ASSESSEES SONS. THERE IS NO SPECIFIC INFORMATION GIVEN BY THE BANK AS RELATES TO WHO HAS MADE THE DEPOSITS IN THE SAID ACCOUNT FR OM TIME TO TIME (ANSWER TO QUESTION NO. 2 OF THE BANK LETTER PRODUC ED AT THE TIME OF HEARING). THE AR FURTHER SUBMITTED THAT SHRI SUBE SINGH WAS VERY 8 ITA NO. 5044,5045,5046,5047/DEL/11 OLD PERSON AND WAS LIVING FAR AWAY FROM BANK AS WEL L AS ASSESSEES RESIDENCE, THEREFORE KEPT THE PASS BOOK WITH THE AS SESSEE. THE AR SUBMITTED THAT THERE IS NOTHING SHOWN IN THE BANK I NFORMATION THAT THE AMOUNT PERTAINS TO THE ASSESSEE AND THUS THE CA USE OF ACTION SHOULD HAVE BEEN TAKEN AGAINST SHRI SUBE SINGH AND NOT AGAINST ASSESSES. THE CHEQUES WERE WITHDRAWN BY THE SAID SHRI SUBE SINGH AND NOT BY THE ASSESSEE. THE ASSESSING OFFIC ER SHOULD HAVE BEEN VIGILANT TO START ASSESSMENT PROCEEDINGS AGAIN ST SHRI SUBE SINGH AND NOT THAT OF THE ASSESSEE. SECTION 132(4A ) IS NOT APPLICABLE IN ASSESSEES CASE AS NO SUPPORTIVE INFO RMATION WAS FOUND BY THE ASSESSING OFFICER. THE REVENUE SHOULD HAVE LOOKED UPON THE BANK ACCOUNT IDENTITY AT THAT PARTICULAR S TAGE. THE MATERIAL NOT CONFRONTED TO ASSESSEE, CANNOT BE USED AGAINST ASSESSEE IN RESPECT OF THE BANK ACCOUNT. THE AR ALS O SUBMITTED COMPILATION OF THE JUDGMENTS ON THE ISSUE THAT BANK PASS BOOK WHEN NOT MAINTAINED BY THE ASSESSEE OR UNDER HIS IN STRUCTION, SUCH PASS BOOK CANNOT BE REGARDED AS BOOKS OF THE ASSESS EE. (CIT VS. BHAI CHAND H GANDHI, BOMBAY (1983) 141 ITR 67). THE SECOND CASE REFERRED WAS ON THE ISSUE OF PEAK CREDIT IN TH E BANK ACCOUNT CANNOT BE TREATED AS UNDISCLOSED INCOME OF THE ASSE SSEE (CIT VS. RANJEET KUMAR SETHIA (2005) 198 CTR 550 (RAJ.)). TH E THIRD CASE LAW SUBMITTED WAS ACIT VS. ASHOK KUMAR CHHUGANI (20 06) 104 TTJ (JOD.) 134 WHEREIN IT WAS STATED THAT DEPOSIT I N THE BANK ACCOUNT OF THE ASSESSEES RELATIVE COULD NOT BE TRE ATED AS UNDISCLOSED INCOME OF THE ASSESSEE MERELY BECAUSE P ASS BOOK OF THOSE ACCOUNTS WERE FOUND IN THE ASSESSEES BED ROO M. THE FOURTH 9 ITA NO. 5044,5045,5046,5047/DEL/11 CASE LAW WAS ON THE ISSUE OF BANK ACCOUNT STANDING IN THE NAME OF A THIRD PARTY CANNOT BE TREATED AS ASSESSEES ACCOU NT MERELY BECAUSE SIMILARITY IS NOTICED IN THE SIGNATURE OF T HE ASSESSEE AND THAT OF THE SAID PERSON. (DR. G.G. DHIR VS. ACIT (2 010) 129 TTJ 1 (AGRA)) 9. THE DR RELIED UPON THE ASSESSMENT ORDER AND THE ORDER PASSED BY THE CIT(A). THE DR SUBMITTED THAT THE ASS ESSMENT ORDER AND THE CIT(A)S ORDER ARE JUST AND PROPER. THE DR ALSO RELIED UPON THE BANK INFORMATION GIVEN AT THE TIME OF THE HEARI NG BEFORE THE ITAT WHEREIN IT WAS STATED THAT ACCOUNT STATEMENT S HOWS THAT MOST OF THE PAYMENTS WERE MADE/TAKE BY KAPOOR SINGH AND HIS SONS. THE DR FURTHER SUBMITTED THAT THERE WERE DEPOSITS I N BANK ACCOUNT WHICH WERE WITHDRAWN IN THE NAME OF ASSESSEE AND HI S TWO SONS. THE ASSESSEE HAS NOT REVEALED AT ANY STAGE THAT THE SE ARE LOANS TAKEN BY HIM FOR PURCHASE OF LAND. IN FACT THIS VER SION CAME DURING THE ASSESSMENT PROCEEDINGS. THE SUBMISSIONS OF THE ASSESSEE WERE TAKEN INTO CONSIDERATION IN PARA 5.5 OF CIT(A). AS RELATES TO THE LOAN ON 8/12/2006 THERE WAS NO EXPLANATION GIVEN BY THE ASSESSEE. THE DR FURTHER SUBMITTED THAT THERE IS NO CONFIRMAT ION OF REPAYMENT OF THE ALLEGED LOAN BY THE ASSESSEE AND T HERE IS NO EVIDENCE PUT UP BY THE ASSESSEE IN THAT RESPECT. T HEREFORE, THE AMOUNT WAS RIGHTLY ADDED BY THE ASSESSING OFFICER I N THE INCOME OF THE ASSESSEE. 10 ITA NO. 5044,5045,5046,5047/DEL/11 10. WE HAVE GONE THROUGH THE RECORDS AND PROCEEDING S AS WELL AS HEARD THE SUBMISSIONS MADE BY BOTH THE SIDES. IT IS PERTINENT TO NOTE THAT THE BANK PASS BOOK WAS FOUND IN THE CUSTO DY OF ASSESSEE. THE ASSESSEE AT NO POINT OF TIME STATED THAT HE HAS NOT RECEIVED THE AMOUNTS FROM SHRI SUBE SINGH. IT CAN BE SEEN FROM T HE ENTRIES IN THE BANK ACCOUNT THAT SHRI SUBE SINGH HAS ISSUED VA RIOUS CHEQUES TO THE ASSESSEE AS WELL TO THE ASSESSEES SONS AND THIS FACT HAS NOT BEEN DENIED BY THE ASSESSEE AT ANY STAGE. ONLY THE VERSION OF HIS EXPLANATION CHANGED DURING THE SEARCH AND DURING TH E ASSESSMENT PROCEEDINGS. THE ASSESSEE COULD NOT ESTABLISH THAT THE LOAN WAS REPAID AT PARTICULAR TIME FROM ANY RECORDS. THE AS SESSEE THOUGH HAS GIVEN DETAILS OF HIS SALARY, THE SAME ALSO INDI CATES THAT THERE ARE CERTAIN AMOUNTS IN THE ACCOUNTS OF ASSESSEE WHI CH WERE FOUND EXORBITANT. IN FACT THE STATEMENTS RECORDED DURING THE SEARCH WAS ALSO NOT SUFFICIENT TO PROVE THAT THE ASSESSEE HAS NOT RECEIVED ANY AMOUNT FROM THE SAID SHRI SUBE SINGH. THE PROCEEDI NGS AGAINST SHRI SUBE SINGH WAS TIME BARRED AND THOUGH THE ASSE SSEES SONS WERE ASSESSED SEPARATELY, THERE WAS NO ADDITION MAD E IN THEIR INCOME. THE FACT THAT THE PASS BOOK WAS FOUND IN TH E CUSTODY OF THE ASSESSEE AND FROM THE ABOVE DISCUSSION IT CAN BE FO UND THAT THE BANK A/C OF SH. SUBE SINGH WAS OPERATED BY ASSESSEE AND ON REGULAR BASIS AS SHRI SUBE SINGH WAS NOT STAYING NE ARBY EITHER TO THE BANK OR TO THE RESIDENCE OF THE ASSESSEE WHICH SHOWS THAT THE ASSESSEE WAS OPERATING THE BANK ACCOUNT OF SHRI SUB E SINGH AND THE AMOUNTS WERE RECEIVED BY THE ASSESSEE AND HIS S ONS ON REGULAR BASIS FOR DEALING IN PURCHASE AND SALE OF PROPERTIE S. THE ASSESSEE 11 ITA NO. 5044,5045,5046,5047/DEL/11 HAS ALSO FAILED TO GIVE ANY EVIDENCE AS TO WHICH PR OPERTIES HE PURCHASED AND WHICH PROPERTIES WERE SOLD AND ALSO A BOUT REPAYMENT OF LOAN TO SHRI SUBE SINGH. THE ASSESSEE HAS NOT DISPUTED THE BANK PASS BOOK OF SHRI SUBE SINGH WHIC H WAS FOUND AT HIS RESIDENCE DURING SEARCH AND SEIZURE OPERATIO N, NEITHER HAS HE CHALLENGED/CONTROVERTED THE AOS FINDING TO THE STA TEMENT OF THE BANK MANAGER GIVEN IN WRITING THAT MOST OF THE PAYM ENTS HAVE BEEN MADE/TAKEN BY SHRI KAPOOR SINGH AND HIS SONS. THE ASSESSEE HAS ALSO NOT DISPUTED THE AOS NOTING THAT THE ACCO UNT WAS CLOSED ON 5/3/2005 THAT IS IMMEDIATELY AFTER THE SEARCH ON 4/3/2005. THIS SHOWS THAT THE ACCOUNT WAS FULLY OPERATED BY T HE ASSESSEE. THE COPY OF THE DETAILS OF THE SAID BANK ACCOUNT FR OM 18/11/1999 TO 13/07/2004 HAS BEEN SUBMITTED BEFORE THE AO. HO WEVER FROM THE ASSESSMENT RECORDS IT CAN BE PERUSED THAT THE B ANK ACCOUNT OF SHRI SUBE SINGH WAS OPERATED RIGHT FROM 4/4/1978. SINCE 1978 TO NOVEMBER 1999 THE AMOUNT WERE MEAGER AND IN REGULAR INTERVALS INDICATING THAT THEY PERTAIN TO THE PENSION RECEIVE D BY HIM FROM ARMY. DURING THE ASSESSMENT PROCEEDINGS ENQUIRIES WERE MADE FROM THE BANK AND IT WAS FOUND THAT THE INTRODUCTIO N TO THE SAID ACCOUNT HAD BEEN MADE BY SMT. PREM KUMARI WIFE OF T HE ASSESSEE AND THE WITHDRAWALS AND THE DEPOSITS HAVE BEEN MADE BY SHRI KAPOOR SINGH AND HIS SONS VIKAS AND RAJIV FROM TIME TO TIME. THE BANK MANAGER HAS GIVEN IN WRITING THAT ACCOUNTS STA TEMENT SHOWS THAT MOST OF THE PAYMENTS HAVE BEEN MADE TO SHRI K APOOR SINGH AND HIS SONS. THUS SECTION 132 (4A) OF THE ACT IS VERY MUCH ATTRACTED IN THE PRESENT CASE AS THE PASS BOOK WAS IN THE CUSTODY OF 12 ITA NO. 5044,5045,5046,5047/DEL/11 THE ASSESSEE AND NOT THAT OF IN THE CUSTODY OF ASSE SSEES SONS. THUS, IT IS CLEARLY ESTABLISHED THAT THE ACCOUNT OF SHRI SUBE SINGH WAS OPERATED BY THE ASSESSEE AND NOT BY ASSESSEES SONS. THEREFORE, THE ASSESSING OFFICER HAS RIGHTLY ADDED THE SAID AM OUNTS IN THE HANDS OF THE ASSESSEE AND THE CIT(A) HAS ALSO CONFI RM IT WITH PROPER REASONING IN RESPECT OF THE ASSESSMENT YEAR 2000-2 001 AND 2002- 2003. 11. THE COMPILATION OF THE JUDGMENTS SUBMITTED BY T HE ASSESSEE WILL NOT BE APPLICABLE IN THE PRESENT CASE AS THE F ACTUAL ASPECTS IN THOSE CASES AND IN THE PRESENT CASE ARE DIFFERENT. IN CASE OF BHAI CHAND H GANDHI (SUPRA) THE ISSUE WAS WHEN THE BANK PASS BOOK WAS NOT MAINTAINED BY THE ASSESSEE OR UNDER HIS INS TRUCTION, SUCH PASS BOOK CANNOT BE REGARDED AS BOOKS OF THE ASSESS EE. BUT IN THE PRESENT CASE THE BANK PASS BOOK WAS FOUND IN THE CU STODY OF THE ASSESSEE AND THE FACTS NARRATED HEREINABOVE AND BEF ORE THE AO AS WELL AS CIT(A) REVEALS THAT THE BANK ACCOUNT OF SHR I SUBE SINGH WAS OPERATED BY THE ASSESSEE. THUS, THIS CASE LAW W ILL NOT BE APPLICABLE. AS REGARDS THE CASE OF RANJEET KUMAR SE THIA (SUPRA) IS CONCERNED THE ISSUE OF THE PEAK CREDIT IN THE BANK ACCOUNT WILL ALSO NOT COME INTO PICTURE AS THE SAID AMOUNT WAS NOT DI SCLOSED BY THE ASSESSEE AND THE ASSESSEE COULD NOT PROVE THAT THE AMOUNT WAS RECEIVED AS LOAN AND REPAID THEREAFTER BY HIM. AS R ELATES TO CASE OF ASHOK KUMAR CHHUGANI (SUPRA), THE SAME DOES NOT REV EALS WHETHER THE BANK ACCOUNT OF THE RELATIVE WAS OPERATED BY TH E ASSESSEE OR 13 ITA NO. 5044,5045,5046,5047/DEL/11 NOT, BUT IN PRESENT CASE THE SAME IS ESTABLISHED AN D HENCE THIS CASE LAW WILL ALSO NOT APPLY. 13. IN RESULT, THIS GROUND NO. 1 OF APPEALS FOR A.Y . 2000-2001 AND 2002-2003 IS DISMISSED. 14. COMING TO THE GROUND NO. 1 FOR THE A. Y. 2003-2 004 AND 2004-2005, THE FACTUAL MATRIX IS THAT DURING THE SE ARCH, A PAPER WAS FOUND WHICH CONTAINED SOME FIGURES AS UNDER:- 1. 70 DATED 29.01.2003 2. 71 DATED 07.02.2003 3. 50 DATED 20.02.2003 4. 50 DATED 15.03.2003 2-41 1. 50 DATED 20.06.2003 2. 50 DATED 25.06.2003 3. 55965 56 DATED 26.03.2003 4. 18000 DATED 07.07.2003 1-74 14 ITA NO. 5044,5045,5046,5047/DEL/11 THE ASSESSEE STATED BEFORE THE ADIT (INV) THAT THES E ENTRIES PERTAIN TO SOME KANYADAN GIVEN BY HIM. THE AO HELD THAT T HE FIGURE 55965 HAS BEEN CROSSED AND 56 WRITTEN INDICATING TH AT THE FIGURE IS IN CODE AND STANDS FOR THOUSANDS AND THE SAME IS CL EAR FROM FIGURES 2-41 AND 1-74. EVEN THE FIGURE 18,000/- HAS BEEN WR ITTEN AS SUCH. THUS THE AO ASSESSED THE SAME AS ASSESSEES INCOME DURING THE RELEVANT YEAR. 15. THE CIT(A) HELD THAT THERE IS NO REASON FOR NOT ACCEPTING THE INTERPRETATION OF THE AO AS THE ASSESSEE HAS NOT BO THERED TO EXPLAIN THE SOURCE OF THESE AMOUNTS OR AS TO WHAT TRANSACTI ONS ARE REPRESENTED BY THESE AMOUNTS WRITTEN IN CODES. THE CIT(A) FURTHER HELD THAT IT CLEARLY ESTABLISHED THAT THE APPELLANT HAS NO EXPLANATION FOR THE SAME. IT IS A PIECE OF EVIDENCE FOUND AND SEIZED DURING SEARCH THAT THE APPELLANT HAS MADE NOTING OF ITS UNDISCLOSED INCOME ON THIS PAPER. THUS CIT(A) ALLOWED THE ADDIT IONS MADE BY THE AO. 16. THE AR SUBMITTED THAT THE PAPER FOUND DURING T HE SEARCH WAS NOT SUPPLIED TO ASSESSEE AND THE SAME IS DUMB DOCU MENT AND DOES NOT SHOW ANY SPECIFIC REASONS THAT THE ENTRIES ARE OF ASSESSEES DEALINGS AND IT DOES NOT GIVE ANY PARTICULAR MARK T HAT THE SAME BELONG TO ASSESSEE. THERE WAS NO STATEMENT GIVEN B EFORE THE ASSESSING OFFICER AND THERE WAS NO QUESTION ASKED BY THE ASSESSING OFFICER IN THIS RESPECT. SO AUTHENTICITY OF THE SAID DOCUMENTS WERE NOT FORTIFIED BY THE ASSESSING OFFIC ER AT ANY STAGE. THE ASSESSEE RELIED ON THE JUDGMENT OF ITAT, MUMBAI BENCH IN CASE 15 ITA NO. 5044,5045,5046,5047/DEL/11 OF MALABAR OIL MARKETING CO. VS. ASSISTANT COMMISS IONER OF INCOME TAX (2004) 91 TTJ (MUMBAI) 348 WHEREIN IT WAS HELD THAT IT IS WELL SETTLED LAW THAT VAGUE NOTING ON LOOSE PAPER FOUND IN THE COURSE OF SEARCH PROCEEDINGS CONTAINED SOME ENTRIES SHOWING N O BUSINESS CONNECTION AND HAVING NO HEADING WHETHER THE AMOUNT WERE RECEIPTS OR PAYMENTS OR IN LAKHS OR IN THOUSANDS, M AKING OF ADDITION IN THE HANDS OF THE ASSESSEE NOT JUSTIFIED . 17. THE DR SUBMITTED THAT THESE PAPERS AT ANY STAGE WERE NOT DENIED BY THE ASSESSEE. THERE WAS NO EXPLANATION A BOUT THE NAME WHICH WAS MENTIONED IN THE SAID PAPER FROM BOTH THE DR AS WELL AS AR. THE DR FURTHER STATED THAT THESE ARE NOT KANYA DAN RECEIPTS. AS RELATES TO THE PAPERS FOUND, THE ASSESSEE HAS COME UP WITH THE VERSION OF PAYING THE SAID AMOUNT AS KANYADAN. THE DR FURTHER STATED THAT THESE ENTRIES ARE IN THOUSANDS. THE AS SESSING OFFICER MORE SPECIFICALLY IN PARA 13 OF THE ASSESSMENT ORDE R STATED THAT THE ASSESSES AT NO POINT OF TIME DENIED THE SAID DO CUMENT AND HAS NEVER CONTESTED THAT THE SAID ENTRY IS NOT THAT OF ANY AMOUNT OR ANY PAYMENT RECEIVED TO HIM AND HIS SONS AND GIVEN BY H IM TO ANY OTHER PARTY. 18. WE HAVE PERUSED THE RECORDS AND PROCEEDINGS AS WELL AS THE SUBMISSIONS MADE BY BOTH THE SIDES. THE ASSESSEE ST ATED BEFORE THE INVESTIGATION OFFICER THAT THESE ENTRIES PERTAIN TO SOME KANYADAN 16 ITA NO. 5044,5045,5046,5047/DEL/11 GIVEN BY HIM. BUT DURING THE STATEMENT AT THE TIME OF SEARCH THE ASSESSEE CLEARLY STATED THAT THE EXPENSES INCURRED FOR THE MARRIAGE OF HIS DAUGHTER WAS RS. 1.25 LAKHS (PAGE NO. 17 OF THE PAPER BOOK FILED BY AR). AS RELATES TO THE CASE LAW CITED BY T HE AR THAT OF MALABAR OIL MARKETING CO., THE SAME IS RELEVANT AS IN THE SAID CASE, IT WAS HELD THAT MERE NOTINGS ON THE LOOSE PAPER WI THOUT ANY CORROBORATIVE EVIDENCE, CANNOT BE ASSESSED AS INC OME IN THE HANDS OF THE ASSESSEE. IT FURTHER HELD THAT THERE B EING NO MATERIAL ON RECORD TO SUGGEST THAT THE ASSESSEE HAS RECEIVED ANY AMOUNT APART FROM THE AMOUNTS RECEIVED BY IT PER ACCOUNT P AYEE CHEQUES. THE ASSESSING OFFICER AS WELL AS THE CIT(A) HAS NOT GIVEN ANY REASONS OR JUSTIFICATION AS TO HOW THE FIGURES MENT IONED IN THE LOOSE PAPER PERTAINS TO DENOMINATION OF THOUSAND. THUS, N O CASE FOR ADDITION ON THIS ACCOUNT IS MADE OUT BY THE REVENUE . 19. IN RESULT, THIS GROUND NO. 1 FOR THE A.Y. 2003- 2004 AND 2004- 2005 IS ALLOWED. 20. THE SECOND GROUND OF APPEALS FOR A.Y. 2000-2001 , 2002-2003, 2003-2004 AND 2004-2005 PERTAINS TO ACTION OF CHARG ING THE INTEREST U/S 234A, 234B, 234C OF THE ACT. THE AO IN ASSESSMENT ORDER HAS CLEARLY STATED THAT THE CHARGING OF INTER EST WILL BE DONE IF APPLICABLE. THEREFORE, THIS GROUND DOES NOT SURVIVE AS PER THE FINDINGS GIVE IN RESPECT OF THE MAIN GROUND HEREINA BOVE. 17 ITA NO. 5044,5045,5046,5047/DEL/11 21. IN RESULT, GROUND NO. 2 OF THE APPEALS FOR A.Y. 2000-2001, 2002-2003, 2003-2004 AND 2004-2005 IS DISMISSED. 22. IN RESULT, APPEALS OF THE ASSESSEE ARE DISPOSED OF. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 15 TH OF SEPTEMBER 2015. SD/- SD/- ( S.V. MEHROTRA) (SUCHI TRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 15 /09/2015 *R. NAHEED* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE 1. DRAFT DICTATED ON 07.09.2015 PS 2. DRAFT PLACED BEFORE AUTHOR 08.09.2015 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 08.09.2015 JM/AM 18 ITA NO. 5044,5045,5046,5047/DEL/11 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 14.09.2015 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 15.09.2015 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.