Nandkishor Hiralal Birla (HUF), Pune V. ITO, Wd.3(2), Pune

ITA 53/PUN/2011

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9243 (ITAT-PUNE)
• Duration Of Justice: 6 year(s) 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 10-01-2017
• Assessment Year: 2000-2001
• Appeal Filed On: 10-01-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: CHAVAN
• Keywords: Reopening of assessment; Unexplained cash credit; Unexplained investment; Search and seizure; Loose papers; Document seized; Opportunity of cross examination; Additional evidence; Documents seized
• Section: 143(3); 32; 147; 68; 69; 148; 56; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO. 53 /P U N/201 1 / ASSESSMENT YEAR : 20 0 0 - 01 NANDKISHOR HIRALAL BIRLA (HUF), 160, SHIVAJINAGAR, PUNE 411005 . / APPELLANT PAN: AB BPB6830F VS. THE INCOME TAX OFFICER , WARD 3(2), PUNE . / RESPONDENT / APPELLANT BY : SHRI KISHOR PHADKE / RESPONDENT BY : SHRI B.Y. CHAVAN / DATE OF HEARING : 21 .0 6 . 2017 / DATE OF PRONOUNCEMENT: 30 . 0 6 .201 7 / ORDER PER S USHMA CHOWLA, J M : TH IS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF CIT (A) - II , PUNE , DATED 26 . 10.2010 RELATING TO ASSESSMENT YEAR 20 0 0 - 01 AGAINST THE ORDER PASSED UNDER SECTION 143(3) OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . 2 . THE ASSES SEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - 1] THE LEARNED CIT(A) ERRED IN HOLDING THAT THE REOPENING U/S 148 WAS VALID AND HENCE, THE REASST. U/S 147 WAS JUSTIFIED IN LAW. ITA NO. 53 /P U N/20 11 NANDKISHOR H. BIRLA 2 2] THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE REASONS RECORDED WERE BASED ON SUSPICION AND PRESUMPTION AND HENCE, THE REOPENING U/S 148 WAS BAD IN LAW. 3] THE LEARNED CIT(A) FURTHER ERRED IN NOT APPRECIATING THAT THE ASSESSEE'S CASE WAS REOPENED O N THE BASIS OF DOCUMENTS FOUND WITH SHRI SHRIRAM SONI WHO WAS SEARCH ED AND HENCE, IF ANY ACTION WAS TO BE TA K EN AGAINST THE ASSESSEE, THE SAME SHOULD HAVE BEEN U/S 1 53C AND NOT U /S 148. 4] THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDITIONS OF RS.34,00,000/ - ON ACCOUNT OF THE ALLEGED FINANCE PROVIDED BY THE ASSESSEE T O SHRI S. H. SONI AND ALSO OF INTEREST OF RS.7,14,000/ - ON THE SAME AMOUNT MERELY ON THE BASIS OF THE DIARIES MAINTAINED BY SHRI SONI AND WHICH WERE FOUND DURING THE SEARCH AT HIS PREMISES. 5] THE LEARNED C I T(A) WAS NOT JUSTIFIED IN CONFIRMING THE ABOV E ADDITIONS WITHOUT ANY EVIDENCE WAS FOUND TO THE ABOVE EFFECT AND PARTICULARLY WHEN, THE DIARIES FOUND WITH SHRI SONI COULD NOT BE CONSIDERED AS AN EVIDENCE AGAINST THE ASSESSEE. 6] THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE ASSESSEE'S NAME WAS NOWHERE MENTIONED IN THE SEIZED DIARIES FOUND WITH SHRI SONI AND HENCE, THERE WAS NO QUESTION OF ANY ADDITION TO BE IN THE HANDS OF THE ASSESSEE. 7] THE LEARNED CIT(A) FAILED TO APPRECIATE THAT - A . THE DIARIES SEIZED DURING THE SEARCH AT THE PREMISES OF SHRI SON I COULD BE CONSIDERED TO BE TRUE AND CORRECT EVIDENCE ONLY IN HIS CASE BUT NOT IN THE CASE OF THE ASSESSEE. B . IT MAY OR MAY NOT BE TRUE THAT SHRI SONI HAD TAKEN THE FINANCE FROM SOME PERSONS IN HIS MONEY LENDING BUSINESS AS OBSERVED BY THE HON'BLE I TAT IN HIS CASE BUT THAT DID NOT PROVE THAT HE HAD TAKEN THE FINANCE FROM THE APPELLANT. C . HAVING NOT GRANTED THE OPPORTUNITY TO CROSS EXAMINE SHRI SONI, THE EVIDENCE FOUND IN HIS PREMISES AND HIS STATEMENT, IF ANY, COULD NOT BE USED AGAINST THE AS SESSEE. D . THERE WERE NO PAPERS FOUND IN THE PREMISES OF SHRI SONI WHICH WERE SIGNED BY THE APPELLANT AND HENCE, IT COULD NOT BE PRESUMED THAT THE APPELLANT HAD PROVIDED THIS FINANCE TO SHRI SONI. E . THERE WAS NO STATEMENT OF SHRI SONI THAT IT WAS THE APPELLAN T WHO PROVIDED THE FINANCE TO HIM AND HENCE, THE ADDITION COULD NOT BE MADE IN THE HANDS OF THE APPELLANT. F . WITHOUT PREJUDICE, EVEN THE PRESUMPTION ABOUT THE DE - CODING OF THE FIGURES MENTIONED IN THE DIARIES OF SHRI SONI COULD NOT SERVE AS AN INCRIMINATING EVIDENCE AGAINST THE ASSESSEE. ITA NO. 53 /P U N/20 11 NANDKISHOR H. BIRLA 3 G . THE ADDITION COULD NOT BE SUSTAINED EVEN BY RELYING ON THEORY OF PROBABILITY. H . THERE WAS NO CHEQUE / RECEIPT / ANY DOCUMENT SIGNED BY THE APPELLANT FOUND IN POSSESSION OF SHRI SONI TO THE EFFECT THAT THE APPELLANT HAD ADVA NCED THESE FUNDS TO HIM WHICH INDICATED THAT NO ADDITION IS JUSTIFIED ON THIS ACCOUNT. 8] THE LEARNED CIT(A) WAS NOT JUSTIFIED IN RELYING UPON THE DIARIES OF SHRI SONI STATEMENT OF SHRI SONI, IF ANY STATEMENT OF SHRI RATNAKAR, ACCOUNTANT WITHOUT AFFORD ING AN OPPORTUNITY OF CROSS EXAMINATION OF THESE PERSONS TO THE APPELLANT. 3. THE FIRST ISSUE RAISED IN THE PRESENT APPEAL VIDE GROUNDS OF APPEAL NOS.1 TO 3 IS AGAINST REOPENING OF ASSESSMENT UNDER SECTION 147/148 OF THE ACT. THE ISSUE IN GROUNDS OF APPE AL NO.4 TO 8 IS AGAINST THE ADDITION MADE OF RS.34 LAKHS ON ACCOUNT OF ALLEGED FINANCE PROVIDED BY THE ASSESSEE TO SHRI SHRIRAM H. SONI AND ALSO OF INTEREST OF RS.7,14,000/ - . 4. BRIEFLY, IN THE FACTS OF THE CASE, THE ASSESSEE HAD INITIALLY FILED THE RETUR N OF INCOME ON 31.10.2000 DECLARING TOTAL INCOME OF RS.1,84,680/ - . DURING THE COURSE OF SEARCH AND SEIZURE OPERATION UNDER SECTION 132 OF THE ACT IN THE CASE OF SHRI SHRIRAM HIRALAL SONI OF PUNE, WAS CARRIED OUT ON 29.07.2003 AT HIS RESIDENTIAL AND OFFICE PREMISES. BOTH SHRI SHRIRAM HIRALAL SONI AND HIS BROTHER SHRI SHRIKANT H. SONI WERE ENGAGED IN THE BUSINESS OF FINANCE BROKERS AND MONEY LENDING AS PROPRIETORS FROM COMMON OFFICE PREMISES AND HAD COMMON STAFF MEMBERS. BOTH THE BROTHERS HAD SHOWN INTERES T INCOME FROM THE LOAN ADVANCED TO VARIOUS BORROWERS IN SEVERAL YEARS. DURING THE COURSE OF SEARCH OPERATION, LARGE NUMBER OF DOCUMENTS, BOOKS OF ACCOUNT WERE SEIZED RELATING TO THE MONEY LENDING BUSINESS. APART FROM REGULAR TRANSACTIONS RELATING TO THE FINANCE BROKERAGE, INCRIMINATING DOCUMENTS RELATING TO ADVANCES, CASH LOANS WERE FOUND AND SEIZED WHICH WERE MOSTLY IN THE FORM OF BLANK PROMISSORY NOTES ITA NO. 53 /P U N/20 11 NANDKISHOR H. BIRLA 4 DULY SIGNED BY THE BORROWERS, BLANK UNDATED CHEQUES DULY SIGNED BY THE BORROWERS, WITH AN AMOUNT OF LO AN MENTIONED. BESIDES THE ENTRIES IN THE CASH BOOK OF PART PERIOD, VIDE B.NO.100/PANCHNAMA DATED 02.08.2003, CHECKLIST OF BORROWERS INDICATING THE DUE DATE OF PAYMENT OF INTEREST AND BROKERAGE TO SHRI SONI WERE FOUND (FOR THE PERIOD 01.01.2000 TO 31.12.20 02, WITH BROKEN PERIOD). THE MODUS OPERANDI FOLLOWED BY SHRI SONI WAS THAT CASH LOAN WAS ADVANCED FOR 90 DAYS, AFTER DEDUCTING INTEREST AMOUNT AND BROKERAGE AMOUNT. AT THE TIME OF BORROWING THE CASH LOAN, THE BORROWERS HANDED OVER THE BLANK CHEQUE OF THE FULL AMOUNT BORROWED AND ALSO PROMISSORY NOTES. ANOTHER PROMISSORY NOTE FOR ONE PERCENTAGE OF AMOUNT BORROWED WAS ALSO OBTAINED FROM THE BORROWER, WHICH WAS TO KEEP TRACK OF THE INTEREST PAYMENT ON THE DUE DATE BY THE BORROWERS. THE PROMISSORY NOTES ALSO CONTAINED THE NAMES OF INVESTORS / MONEY LENDERS (IN ABBREVIATED / ENCRYPTED / MIS - SPELT FORM), WHO ADVANCED CASH LOANS AND RECEIVED INTEREST IN CASH. IN ORDER TO FINANCE HIS BUSINESS AND TO REDUCE THE RISK OF LOSS, SHRI SONI TOGETHER WITH SHRIKANT H. SO NI, HIS BROTHER, ALSO OBTAINED FUNDS FROM KNOWN P ARTIES WITH READY CASH, WITH THE PROMISE TO PAY INTEREST @ RANGING FROM 1.30% TO 1.50% PAID UPFRONT I.E. AT THE TIME OF ADVANCING THE CASH LOANS TO / THROUGH SHRI SONI. SUCH FINANCES REMAINED IN THE BUSINES S TILL THE INVESTORS / DEPOSITORS DESIRE D , ON WHICH THE INVESTOR KEPT RECEIVING THE INTEREST IN THE CYCLE OF 90 DAYS. THE DOCUMENT AT BILL NOS.98 AND 99 OF PANCHNAMA DATED 02.08.2003 REFLECT THE AMOUNT, TO BE READ AS MULTIPLE OF 1000 OF THE FIGURE MENTION ED THEREIN, ADVANCED / INVESTED AND OUTSTANDING ON GIVEN DATE AND THE RATE OF INTEREST (PER MONTH PAYABLE BY THE BORROWER) WHOSE NAMES ARE ALSO INDICATED. SHRI SONI DECLINED TO IDENTIFY SUCH INVESTORS OR PERSONS AND SUCH CREDITS WERE ADDED AS UNEXPLAINED, ON PROTECTIVE BASIS, IN HIS HANDS. HOWEVER, THERE WERE OTHER DIRECT AND INDIRECT EVIDENCES IN THE FORM OF LOOSE PAPERS, SUGGESTING THE IDENTITY AND ACTUAL TRANSACTION BY SUCH PERSONS. ITA NO. 53 /P U N/20 11 NANDKISHOR H. BIRLA 5 THE ASSESSING OFFICER NOTED THAT THE NAME OF ASSESSEE APPEARED AS NAND USETH BIRLA OR BIRA NK, BIRA H.NANDK IN THE SEIZED MATERIAL . THE ADVANCES WERE UNACCOUNTED AND UNDISCLOSED INVESTMENT OF THE ASSESSEE, WHICH HAD TO BE TAXED IN THE HANDS OF ASSESSEE ALONG WITH INTEREST INCOME ON SUCH UNACCOUNTED INVESTMENTS. THE ASSESSING OFFICER IN - CHARGE OF THE ASSESSEE IN THIS REGARD, RECEIVED INFORMATION AND RECORDED REASONS FOR REOPENING THE ASSESSMENT UNDER SECTION 147 OF THE ACT AND ISSUED NOTICE UNDER SECTION 148 OF THE ACT. IN RESPONSE, THE ASSESSEE FURNISHED REPLY STATING THAT T HE ORIGINAL RETURN OF INCOME FILED BY HIM , MAY BE TREATED AS RETURN FILED IN RESPONSE TO NOTICE UNDER SECTION 148 OF THE ACT. THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS , ON ACCOUNT OF LOOSE PAPERS FOUND DURING THE COURSE OF SEARCH P ROCEEDINGS IN THE CASE OF SHRI SONI WORKED OUT THAT ATLEAST RS.34 LAKHS WAS INVESTED BY SHRI BIRLA IN MONEY LENDING AS ON 31.03.2000 WHICH WAS UNACCOUNTED. THE ASSESSING OFFICER ALSO NOTED THAT ON CERTAIN LOOSE PAPERS FOUND DURING THE COURSE OF SEARCH, TH ERE WERE SIGNATURES OF ASSESSEE. THE ASSESSEE WAS THUS, SHOW CAUSED AS TO WHY RS.34 LAKHS PLUS INTEREST SHOULD NOT BE ADDED AS HIS INCOME. IN REPLY, THE ASSESSEE POINTED OUT THAT IT HAD NOT MADE ANY TRANSACTION WITH SHRI SONI OR ANY OTHER PARTY THROUGH H IM AND HENCE, HA D NO CONNECTION TO THE ENTRIES. THE EXPLANATION FILED BY THE ASSESSEE WAS FOUND TO BE NOT SATISFACTORY SINCE THE ASSESSEES NAME WAS ENLISTED AMONGST THE NAMES OF BORROWERS AND LENDERS. IN VIEW THEREOF, THE ASSESSING OFFICER MADE ADDITION OF RS.34 LAKHS UNDER SECTION 69 OF THE ACT AND FURTHER ADDITION ON ACCOUNT OF INTEREST UNDER SECTION 56 OF THE ACT AT RS.7,14,000/ - . 5. BEFORE THE CIT(A), THE FIRST OBJECTION RAISED BY THE ASSESSEE WAS AGAINST THE VALIDITY OF RE - ASSESSMENT UNDER SECTION 147 OF THE ACT. THE SECOND ISSUE ITA NO. 53 /P U N/20 11 NANDKISHOR H. BIRLA 6 RAISED WAS IN RESPECT OF ADDITION MADE OF RS.34 LAKHS UNDER SECTION 69 OF THE ACT AND THE INTEREST THEREON. THE CIT(A) NOTED THAT THE ASSESSEE HAD RAISED THE ISSUE OF VALIDITY OF RE - ASSESSMENT PROCEEDINGS UNDER SECTION 14 7 OF THE ACT IN THE WRITTEN SUBMISSIONS FILED. HOWEVER, THE ASSESSEE HAD NOT RAISED ANY GROUND OF APPEAL IN THIS REGARD NOR FILED ANY ADDITIONAL GROUND OF APPEAL AND THE CIT(A) THUS, HELD THAT THE SAID ISSUE COULD NOT BE ENTERTAINED IN THE APPEAL AND THE OBJECTION RAISED AGAINST REOPENING OF ASSESSMENT UNDER SECTION 148 OF THE ACT WAS LIABLE TO THE REJECTED. SINCE, NO SCRUTINY ASSESSMENT WAS MADE ORIGINALLY IN THE CASE OF ASSESSEE, THE CIT(A) RELIED ON THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT IN T HE CASE OF ACIT VS. RAJESH JHAVERI STOCK BROKERS (P) LTD. (2007) 291 ITR 500 (SC) AND UPHELD THE RE - ASSESSMENT ORDER PASSED IN THE CASE OF ASSESSEE. 6. IN RESPECT OF ADDITION ON MERITS, THE FIRST OBJECTION WAS AGAINST THE NOTINGS ON THE SEIZED DOCUMENTS N OT BELONGING TO THE ASSESSEE. THE ASSESSEE EMPHASIZED THAT ITS NAME WAS NANDKISHORE H. BIRLA AND THE DOCUMENTS FOUND WITH SONI GROUP DOES NOT SHOW HIS NAME ANYWHERE. THIS CONTENTION OF ASSESSEE WAS REJECTED AS THE ASSESSEE HAD NOT PRODUCED ON RECORD ANY SUCH ENTITY EXISTING IN TH O SE NAMES. THE SECOND OBJECTION RAISED BY THE ASSESSEE WAS AGAINST WORKING OF AMOUNT OF RS.34 LAKHS AND SINCE THE ASSESSING OFFICER HAD GIVEN BREAKUP OF THE AMOUNT AS PER SEIZED DOCUMENTS VIDE BUNDLE NO.98 OF ANNEXURE A OF PANCHA NAMA DATED 02.08.2003 IN THE CASE OF SHRI SHRIRAM H. SONI , THE OBJECTION OF ASSESSEE IN THIS REGARD WAS REJECTED. THE NEXT OBJECTION OF ASSESSEE WAS THAT THE ENTRIES ON THE SEIZED DOCUMENTS COULD NOT BE APPLIED AGAINST THE THIRD PARTY AND THE PRESUMPTION UNDER SECTION 132(4A) OF THE ACT COULD BE USED ONLY AGAINST THE PERSONS FROM WHOSE PREMISES THE DOCUMENTS WERE SEIZED. THIS PROPOSITION OF THE ASSESSEE WAS ALSO NOT ACCEPTED BECAUSE ITA NO. 53 /P U N/20 11 NANDKISHOR H. BIRLA 7 OF THE ENTRIES IN THE NAME OF BIRLA NK, WAS WRITTEN EITHER IN ENGLISH OR HINDI AND THE ASSESSEE WAS THE PROPRIETOR OF BIRLA AGENCY, WH ICH WAS A DEALER IN CEMENT. THEN, NEXT CONTENTION OF ASSESSEE IN THIS REGARD WAS FOUND TO BE NOT ACCEPTABLE. IT WAS FURTHER OBSERVED BY THE CIT(A) VIDE PARA 3.8, WHEREIN REFERENCE WAS MADE TO D IFFERENT ENTRIES ON DIFFERENT PAGES AS UNDER: - 3.8 THE REFERENCE TO THE NARRATION BIRLA NK AGAINST THE PAYMENTS RECORDED IN THE SEIZED CASH BOOK VIDE BUNDLE NO.100 DURING THE SEARCH OF SHRI S.H. SONI AND HIS CONCERNS, ARE FOUND AT NUMEROUS PLACES. SOM E OF THESE INSTANCES ARE ON PAGE NO.5 DATED 08.09.2000, PAGE NO.17 DATED 23.09.2000, PAGE NO.19 DATED 26.09.2000, PAGE NO.26 DATED 04.10.2000 , PAGE NO.38 DATED 18.10.2000, PAGE NO.41 DATED 21.10.2000, PAGE NO.44 DATED 25.10.2000, PAGE NO.58 DATED 13.11.200 0, PAGE NO.66 DATED 22.11.2000, PAGE 67 DATED 23.11.2000, PAGE NO.70 DATED 27.11.2000, PAGE NO.82 DATED 11.12.2000, PAGE NO.86 DATED 15.12.2000, PAGE NO.95 DATED 26.12.2000 AND PAGE NO.99 DATED 30.12.2000. THESE ENTRIES ARE OUT OF THE SEIZED DOCUMENTS VID E BUNDLE NO.100 FOR THE QUARTER 01.09.2000 TO 31.12.2000, AND ARE IN ADDITION TO THE ENTRIES IN THE NAME NANDUSETH BIRLA ON MANY OF THE PAGES CONTAINED IN THIS BUNDLE. ALTHOUGH THESE DOCUMENTS DO NOT RELATE THE ASSESSMENT YEAR UNDER CONSIDERATION, BUT, TO THE NEXT ASSESSMENT YEAR; THIS DOESN'T GIVEN ANY RELIEF TO THE APPELLANT. THIS IS BECAUSE THESE DOCUMENTS ARE PART OF THE SAME SEIZURE, AND THE ENTRIES IN BUNDLE NO. 100 ARE IN THE NATURE OF CASHBOOK, WHICH SHOW THAT THE TRANSACTIONS RELATED TO PAYMENT OF INTEREST AS WELL AS REPAYMENT OF LOAN, WHICH ARE ARISING OUT OF AND LINKED WITH THE SEIZED DOCUMENTS VIDE BUNDLE NOS. 98 AND 99, WHICH RECORDED THE GIVING AWAY OF THE LOAN BY SHRI NANDKISHOR H. BIR L A, ENTERED UNDER THE HEAD 'INVESTOR'. THE AUTHENTICITY AND VERACITY OF THESE SEIZED DOCUMENTS' HAS BEEN DULY DISCUSSED, ANALYSED AND ACCEPTED IN THE ITAT ORDER DATED 17.06.2010 IN I TA NO.474 TO 478 & 518/PN/2007 FOR ASSESSMENT YEARS 1998 - 99 TO 2003 - 04, IN THE CASE OF SHRI SHRIRAM H. SONI, WHICH HAS ALSO UPHELD THE AUTHENTICITY OF THE ENTRIES MADE IN THE DOCUMENTS. THEREFORE, EVEN IF THE ABOVE REFERRED TO BUNDLE NO. 100 DOESN'T RELATE TO THIS PARTICULAR ASSESSMENT YEAR, IT GIVES AMPLE CORROBORATIVE EVIDENCE THAT SHRI NANDKISHOR H. BIR L A, PROPRIETOR OF BIR L A AGEN CY, DEALING IN CEMENT BUSINESS, IS THE PERSON TO WHOM THESE TRANSACTIONS RELATE. 7. THEREAFTER, THE CIT(A) REFERRED TO THE ORDER OF THE PUNE BENCH OF TRIBUNAL IN ITA NOS.474 TO 478, 518/PN/2007 IN THE CASE OF SHRI SHRIRAM H. SONI , RELATING TO ASSESSMEN T YEARS 1998 - 99 TO 2003 - 04, ORDER DATED 17.06.2010 AND NOTED THE ISSUE BEFORE THE TRIBUNAL WAS PARTICULARLY IN RESPECT OF SEIZED DOCUMENTS VIDE BUNDLE NOS.98 AND 99, UNDER THE HEAD INVESTMENTS IN THE SPECIFIC NAME OF CERTAIN PERSONS COULD BE TREATED AS A DDITION UNDER SECTION 68 OF THE ACT AS UNEXPLAINED CREDIT. THE CIT(A) FURTHER NOTED THAT THE TRIBUNAL ITA NO. 53 /P U N/20 11 NANDKISHOR H. BIRLA 8 TOOK NOTE OF VARIOUS ENTRIES AND THE CONTENTION OF ASSESSEE BEFORE THE TRIBUNAL THAT THE SEIZED DOCUMENTS DEPICT TRUE CHARACTER AS WELL AS TRUE NATURE OF TRANSACTIONS AND THEREFORE, IN VIEW OF THE PROVISIONS OF SECTION 1 32 (4A) OF THE ACT, THERE WAS A PRESUMPTION THAT THE DOCUMENTS SEIZED SPOKE TRUTH. FURTHER CONTENTION OF ASSESSEE WAS THAT THE DOCUMENTS FOUND DURING THE COURSE OF SEARCH HAD TO BE READ AS A WHOLE AND NOT IN PARTS AND RELIANCE WAS PLACED ON VARIOUS JUDGMENTS IN THIS REGARD. DURING THE COURSE OF SUBMISSIONS, THE LEARNED AUTHORIZED REPRESENTATIVE FOR SHRI SONI HA D PLACED BEFORE THE TRIBUNAL THE LIST OF INVESTORS, WHICH INCLUDED THE NAME OF SH RI NANDKISHOR H. BIRLA ALSO, WHOSE NAME HAS BEEN REPEATEDLY MENTIONED IN THE ORDER OF TRIBUNAL DATED 17.06.2010. FURTHER, COPY OF THE ASSESSMENT ORDER IN THE CASE OF NANDKISHOR BIRLA ALONG WITH ASSESSMENT ORDERS OF MANY OTHER INVESTORS / BORROWERS W ERE PL ACED BEFORE THE TRIBUNAL, WHICH HAD TAKEN DUE COGNIZANCE OF THE ORDERS AND IT IS SPECIFICALLY STATED AS PER THE PARA 7.4 OF THE TRIBUNAL ORDER THAT SHRI NANDKISHOR H. BIRLA, THE ASSESSEE BEFORE US, HAD ALSO ADVANCED MONEY THROUGH SHRI SHRIRAM SONI, WHO ACT ED AS FINANCE BROKER , TO THE TUNE OF RS.34 LAKHS. FROM THIS, THE TRIBUNAL CONCLUDED THAT WHERE THE NAME OF BORROWER AND THE AMOUNT WAS ACKNOWLEDGED AND ACCEPTED BY THE DEPARTMENT, THEN THE DEPARTMENT HAD NO LEGAL RIGHT TO IGNORE OR DISBELIEVE THE NAME OF INVESTOR WRITTEN ON THAT VERY SEIZED MATERIAL. SIMILARLY, THE TRIBUNAL ALSO TOOK NOTE OF THE NAME OF LENDERS AS WELL AND ALSO THE LIST OF REPAYMENT OF LOAN, ETC. AND BASED ON THESE, THE TRIBUNAL ACCEPTED THAT SHRI SHRIRAM H. SONI, WAS FINANCE BROKER, ON T HE BASIS OF LIST OF INVESTORS / BORROWERS. THE CIT(A) VIDE PARA 3.11 REFERRED TO THE STATEMENT RECORDED ON 30.07.2003 DURING THE COURSE OF SEARCH OF SHRI SUNIL. W. RATNAKAR, ACCOUNTANT, WHO DESCRIBED THE MODUS OPERANDI IN DETAIL AND ALSO POINTED OUT THAT THE LIST OF INVESTORS INCLUDED SHRI HIRALAL BIRLA, SHIVAJI NAGAR, FATHER OF SHRI NANDKISHOR BIRLA. THE CIT(A) THEREAFTER, REFERRED TO ITA NO. 53 /P U N/20 11 NANDKISHOR H. BIRLA 9 VARIOUS OTHER PARTS OF DISCUSSION IN THE ORDER OF TRIBUNAL AND HELD THAT THE TRIBUNAL HAD RELIED ON THE ENTRIES UNDER THE HEAD INVESTORS IN BUNDLE NOS.98 AND 99, WHICH RELATED TO A PARTIC ULAR PERSON MENTIONED THEREIN AND ALSO REFERRED TO THE LIST IN BUNDLE NO.100 OF THE LIST OF LENDERS. IN THE TOTALITY OF THE ABOVE SAID FACTS AND CIRCUMSTANCES AND FOLLOWING THE RATIO LAID DOWN BY THE TRIBUNAL VIDE ITS ORDER DATED 17.06.2010 IN THE CASE OF SHRI SHRIRAM H. SONI AND THE ENTRIES MADE IN THE DOCUMENT VIDE BUNDLE NOS.98, 99 AND 100, WHICH WERE HELD TO BE AUTHENTIC AND RELEVANT, THE CIT(A) UPHELD THE ORDER OF ASSESSING OFFICER AN D CONSEQUENTLY, THE ADDITION OF RS.34 LAKHS UNDER SECTION 69 OF THE ACT AND ADDITION ON ACCOUNT OF INTEREST UNDER SECTION 56 OF THE ACT AT RS.7,14,000/ - . 8. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF CIT(A). 9. THE LEARNED AUTHORIZED REPRESENTATIVE F OR THE ASSESSEE POINTED OUT THAT THE ALLEGATION AGAINST THE ASSESSEE WAS THAT IT HAD INVESTED RS.34 LAKHS WITH SHRI SHRIRAM SONI. HE FURTHER POINTED OUT THAT FROM BORROWERS THOUGH SHRI SONI, WAS IN ADDITION RECEIVING PROMISSORY NOTES, CHEQUES, BUT FROM TH E DEPOSITORS, NOTHING WAS TAKEN. OUR ATTENTION WAS DRAWN TO THE ORDER OF ASSESSING OFFICER AND IT WAS POINTED OUT THAT THE ASSESSING OFFICER HAD WORKED OUT THE INTEREST @ 1.75% FOR PERIOD OF 12 MONTHS IN THE HANDS OF ASSESSEE. THE LEARNED AUTHORIZED REPR ESENTATIVE FOR THE ASSESSEE REFERRED TO THE YEAR UNDER CONSIDERATION I.E. WITH YEAR ENDING 31.03.2000 AND STRESSED THAT WHERE THE INTEREST IS WORKED OUT FOR A PERIOD OF 12 MONTHS, THEN THE PRESUMPTION IS THAT THE AMOUNT WAS INVESTED IN THE PRECEDING YEAR, OTHERWISE, HOW CAN THE ADDITION BE MADE ON ACCOUNT OF INTEREST FOR 12 MONTHS IN THE HANDS OF ASSESSEE FOR THE ITA NO. 53 /P U N/20 11 NANDKISHOR H. BIRLA 10 YEAR UNDER CONSIDERATION. HE STRESSED THAT THE FIRST AND FOREMOST CONTENTION OF ASSESSEE BEFORE THE AUTHORITIES BELOW AND EVEN BEFORE THE TRIBUNA L IS THAT THE NAME WRITTEN IN THE SEIZED DOCUMENTS IS NOT THAT OF ASSESSEE . T HE ASSESSEE IS NANDKISHOR H. BIRLA, WHEREAS THE NAMES WRITTEN IN THE SAID DOCUMENTS ARE NANDUSETH BIRLA OR BIRA NK, BIRA H.NANDK . A S PER THE LEARNED AUTHORIZED REPRESENTATIVE FO R THE ASSESSEE, THEY DO NOT RELATE TO THE ASSESSEE. THE NEXT POINT WHICH WAS RAISED BEFORE THE AUTHORITIES BELOW AND EVEN BEFORE US IS THAT THE ASSESSING OFFICER HAS WORKED OUT THE ADDITION AT RS.34 LAKHS WITHOUT GIVING ANY BREAKUP OF THE SAID ADDITION. THE ISSUE WHICH HE SAYS, WAS RAISED BEFORE THE CIT(A), WHO IN TURN, OBTAINED THE REMAND REPORT FROM THE ASSESSING OFFICER, COPY OF WHICH IS PLACED AT PAGES 16 TO 20 OF THE PAPER BOOK. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE ASSESSING OFFICER MENTIONS THAT THE NAME OF ASSESSEE IS REFERRED TO AS NANDUSETH BIRLA OR BIRA NK, BIRA H.NANDK IN THE SEIZED MATERIAL, COPIES OF WHICH WERE ANNEXED TO THE REMAND REPORT. HE REFERRED TO THE FIRST DOCUMENT AT PAGE 18 DATED 28.03.2001, SECOND ONE AT PAGE 19, DATED 20.01.2001 AND THE THIRD ONE AT PAGE 20, DATED 30.03.2001 AND IN THESE DOCUMENTS, THE ENTRIES ARE IN THE NAME OF BIRLA NK, BIRLA NANDKISHOR AND BIRLA NK, RESPECTIVELY. HE FURTHER REFERRED TO THE TABULATED CHART, UNDER WHICH TH E DATA OF BORROWERS IS TABULATED ; IN THE DOCUMENTS WHICH WERE MAINTAINED BY SHRI SONI AGAINST THE DATA ENTERED BY THE BORROWERS, THE NAME OF INVESTOR WAS ALSO MENTIONED. HOWEVER, NO SUCH DOCUMENTS WERE CONFRONTED TO THE ASSESSEE AND TO THE REMAND REPORT, THE DOCUMENTS AS MENTIONED ABOVE WERE ATTACHED. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE FURTHER REFERRED TO THE ORDER OF CIT(A) IN PARA 3.8, WHEREIN HE HAS ALSO TOOK NOTE OF VARIOUS DATES ON WHICH THE AMOUNT IS ALLEGED TO HAVE ADVANCED BY T HE ASSESSEE. HE STRONGLY POINTED OUT THAT ALL THESE ENTRIES WHICH ARE BEING TALKED OF OR BEING REFERRED TO RELATE TO THE NEXT ITA NO. 53 /P U N/20 11 NANDKISHOR H. BIRLA 11 FINANCIAL YEAR AND DO NOT RELATE TO THE YEAR UNDER CONSIDERATION. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT NO ADDITION WAS MADE ON ACCOUNT OF ALLEGED ENTRIES RELEVANT TO THE SUCCEEDING YEAR IN THE HANDS OF ASSESSEE IN ASSESSMENT YEAR 2001 - 02. ANOTHER RELIANCE PLACED UPON BY THE ASSESSING OFFICER FOR MAKING ADDITION WAS SIGNATURE OF THE ASSESSEE IN TH E LIST OF INVESTORS, COPY OF WHICH IS PLACED AT PAGE 46 OF THE PAPER BOOK. THIS IS AN ANNEXURE TO THE PANCHANAMA, WHERE THE FIRST NAME IS BIRLA NK AND THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE SAID SIGNATURE IS NOT THAT O F ASSESSEE. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE REFERRED TO THE ACKNOWLEDGEMENT OF FILING THE RETURN OF INCOME, WHICH IS PLACED AT PAGE 3 OF THE PAPER BOOK. HE ALSO POINTED OUT THAT THE CIT(A) DID NOT DEAL WITH THIS CONTENTION OF ASSES SEE. THE NEXT SUBMISSIONS MADE BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE WAS THE OBSERVATION OF CIT(A) IN PARA 3.1 , WHEREIN HE HAD POINTED OUT THAT THE ACCOUNTANT OF SHRI SONI RATNAKAR HAD IDENTIFIED THE FATHER OF ASSESSEE BUT IT HAD NO RE LEVANT TO THE FACTS OF THE CASE. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE STRESSED THAT ONUS FOR SUBSTANTIATING THAT THE ENTRIES BELONGED TO THE ASSESSEE WAS STRONGLY ON THE REVENUE, WHO HAD FILED TO DISCHARGE THEIR ONUS AND HENCE, NO ADDITI ON COULD BE MADE IN THE HANDS OF ASSESSEE. HE REF ERRED TO THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT IN P.R. METRANI VS. CIT (2006) 287 ITR 209 (SC), WHEREIN THE RATIO LAID DOWN WAS THAT UNDER SECTION 132(4) OF THE ACT, PRESUMPTION WAS AGAINST SEARC HED PERSON. HOWEVER, SINCE THE ASSESSEE WAS NOT THE PERSON WHO WAS SEARCHED AND CONSEQUENTLY, NO SUCH PRESUMPTION COULD BE TAKEN AGAINST THE ASSESSEE. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE IN THIS REGARD, FURTHER PLACED RELIANCE ON THE R ATIO LAID DOWN BY THE PUNE BENCH OF TRIBUNAL IN THE CASE OF M/S. KEJALS FURNISHINGS VS. ACIT IN ITA NOS.928 AND 929/PN/2011, ITA NO. 53 /P U N/20 11 NANDKISHOR H. BIRLA 12 RELATING TO ASSESSMENT YEARS 2000 - 01 & 2001 - 02, ORDER DATED 28.11.2014, WHEREIN THE FACTS WERE IDENTICAL AND IN TH AT CASE , IT WAS P OINTED OUT THAT HIS NAME WAS IN THE LIST OF INVESTORS. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE REFERRED TO THE ORDER OF TRIBUNAL AND POINTED OUT THAT ALL THE ALLEGATIONS WHICH ARE RAISED BY THE CIT(A) IN THE CASE OF ASSESSEE WERE AGAINST TH E SAID ASSESSEE AND THE TRIBUNAL HAS IN VIEW OF DIFFERENCE IN THE NAME, NOT ACCEPTED THE CASE OF REVENUE AUTHORITIES AND DELETED THE ADDITION. HE FURTHER PLACED RELIANCE ON THE RATIO LAID DOWN BY THE PUNE BENCH OF TRIBUNAL IN THE CASES OF TULSIRAM JODHARA J PALLOD VS. ITO (2015) 44 CCH 112 (PUNE - TRIB.) , IN SHRI RATANLAL S. DUGAR VS. ITO IN ITA NOS.57 & 58/PN/2011, RELATING TO ASSESSMENT YEARS 2000 - 01 AND 2001 - 02, ORDER DATED 29.03.2012 AND IN JAGANNATH EKNATH LAHOTI (HUF) VS. ITO IN ITA NO.453/PN/2012, RELA TING TO ASSESSMENT YEAR 2000 - 01, ORDER DATED 11.02.2014. THE NEXT CONTENTION OF ASSESSEE WAS THAT THE ADDITION UNDER SECTION 69 OF THE ACT CAN BE MADE ONLY IF THERE IS MATERIAL FOUND AGAINST THE ASSESSEE. WHERE THE ASSESSEE HAD DENIED THAT HE HAD MADE AN Y ADVANCES / DEPOSITS AND MERELY ON THE BASIS OF CERTAIN ENTRIES, THE HONBLE HIGH COURT OF ALLAHABAD IN CIT VS. SALEK CHAND AGARWAL (2008) 300 ITR 426 (ALL) HELD THAT THE PROVISIONS OF SECTION 69 WERE NOT ATTRACTED. 10. THE LEARNED DEPARTMENTAL REPRESENT ATIVE FOR THE REVENUE ON THE OTHER HAND, RELIED ON THE ORDERS OF AUTHORITIES BELOW. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE WAS ALSO DURING THE COURSE OF HEARING ASKED TO PRODUCE SEIZED MATERIAL ON THE BASIS OF WHICH, THE ADDITIONS WERE MA DE IN THE HANDS OF ASSESSEE IN THE CAPTIONED YEAR . DESPITE SEVERAL OPPORTUNITIES, THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE HAS FAILED TO PRODUCE ANY EVIDENCE BEFORE THE TRIBUNAL IN THIS REGARD. HE POINTED OUT THAT THE NAMES ITA NO. 53 /P U N/20 11 NANDKISHOR H. BIRLA 13 WERE WRITTEN ON THE SAID SEIZED MATERIAL AND HENCE, THE ADDITION. HOWEVER, NO SUCH DOCUMENT RELATING TO THE YEAR UNDER APPEAL WAS PRODUCED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE. 11. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE IN REJOINDE R PLACED RELIANCE ON THE RATIO LAID DOWN BY THE PUNE BENCH OF TRIBUNAL IN JAGANNATH EKNATH LAHOTI (HUF) VS. ITO (SUPRA), WHEREIN THE CIT(A) HAD DENIED THE CLAIM ON IDENTICAL ISSUES AS IN THE PRESENT CASE, WHEREIN THE TRIBUNAL HAS VIDE PARA 6.6 AT PAGE 7 DE LETED THE ADDITION. 12. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE FIRST ISSUE RAISED BY THE ASSESSEE AGAINST THE REOPENING OF ASSESSMENT HAS NO MERIT SINCE AGAINST THE RETURN OF INCOME FILED BY THE ASSESSEE, NO SCRUTINY ASSESSMENT W AS INITIATED AND NO ORDER WAS PASSED UNDER SECTION 143(3) OF THE ACT. THE ASSESSING OFFICER AFTER RECEIVING INFORMATION HAD RECORDED REASONS FOR REOPENING THE ASSESSMENT AND THEREAFTER, HA D ISSUED NOTICE UNDER SECTION 148 OF THE ACT. FOLLOWING THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT IN ACIT VS. RAJESH JHAVERI STOCK BROKERS (P) LTD. (SUPRA), WE UPHOLD THE INITIATION OF RE - ASSESSMENT UNDER SECTION 147/148 OF THE ACT. CONSEQUENTLY, THE GROUNDS OF APPEAL NO.1 TO 3 RAISED BY THE ASSESSEE ARE DISMISSE D. 13. THE NEXT ISSUE ON MERITS IS AGAINST THE ADDITION MADE OF RS.34 LAKHS UNDER SECTION 69 OF THE ACT AND INTEREST EARNED THEREON OF RS.7,14,000/ - . THE SAID ADDITION WAS MADE IN THE HANDS OF ASSESSEE PURSUANT TO THE DOCUMENTS AND VARIOUS OTHER EVIDENCE S FOUND IN THE SEARCH PROCEEDINGS IN THE CASE OF SHRI SHRIRAM H. SONI. THE SAID SHRI SONI WAS FOUND TO BE FINANCE BROKER, WHEREIN HE ALONG WITH HIS BROTHER WERE ENGAGED IN THIS ALLEGED UNACCOUNTED ITA NO. 53 /P U N/20 11 NANDKISHOR H. BIRLA 14 MONEY LENDING BUSINESS. SHRI SONI WAS TO RECEIVE MONEY FR OM INVESTORS WHICH IN TURN, WAS INVESTED WITH VARIOUS BORROWERS ; ON BOTH THESE TRANSACTIONS, INTEREST ELEMENT WAS ALSO INVOLVED. IN RESPECT OF BORROWINGS MADE THROUGH SHRI SONI ADDITIONAL EVIDENCE WAS FOUND OF PROMISSORY NOTES AND CHEQUES ISSUED FOR INTER EST CHARGEABLE , I N RESPECT OF INVESTORS , T HE ENTRIES WERE FOUND IN FRONT OF LIST OF BORROWERS I.E. TO LINK THE AMOUNT RECEIVED FROM INVESTORS WITH THE MONEY ADVANCED TO BORROWER. ANOTHER LIST OF INVESTORS W AS ALSO FOUND FROM THE POSSESSION OF SHRI SONI. TAKING THE GAMUT OF INCRIMINATING EVIDENCE FOUND DURING THE COURSE OF SEARCH, HE WAS HELD TO BE ENGAGED IN THE UNACCOUNTED BUSINESS OF MONEY LENDING AND THE INCOME WAS ACCORDINGLY, WORKED OUT IN THE HANDS OF SHRI SONI. SIMULTANEOUSLY, PROCEEDINGS WERE INI TIATED AGAINST THE PERSONS WHO HAD EITHER INVESTED OR BORROWED FUNDS FROM SHRI SONI. THE ASSESSEE WAS FOUND TO BE ONE SUCH INVESTORS, WHEREIN CERTAIN ENTRIES WERE FOUND WHICH WERE ALLEGED TO BE BELONGING TO THE ASSESSEE. IT MAY BE POINTED OUT HEREIN ITSE LF THAT NO SPECIFIC DOCUMENT WAS FOUND WHICH RELATED TO THE ASSESSEE, EXCEPT THE ENTRIES IN VARIOUS DOCUMENTS WHICH WERE ADMITTEDLY, NOT IN THE NAME OF ASSESSEE BUT ALLEGEDLY, IN THE ABBREVIATED NAME SIMILAR TO THAT OF ASSESSEE. THE DOCUMENT REFERRED TO B Y THE AUTHORITIES BELOW WAS IN THE NAME OF NANDUSETH BIRLA OR BIRA NK, BIRA H.NANDK AND THE PRESUMPTION OF ASSESSING OFFICER WAS THAT THESE ENTRIES BELONGED TO THE ASSESSEE. FOR COMING TO THE SAID CONCLUSION , THE ASSESSING OFFICER ALLEGED THAT THE DOCUMEN T BORE SIGNATURE OF ASSESSEE AND ALSO RELIANCE WAS PLACED ON THE STATEMENT OF ACCOUNTANT SHRI RATNAKAR OF SHRI SONI, WHO POINTED OUT THAT HE KNOW HIRALAL SONI, WHO WAS THE FATHER OF ASSESSEE. THE ADDITION WAS WORKED OUT AT RS.34 LAKHS ON THE BASIS OF ENTR IES AGAINST THE NAME OF BORROWERS. THE ASSESSEE HAS RAISED THE ISSUE OF AFORESAID ADDITION IN HIS HANDS. ITA NO. 53 /P U N/20 11 NANDKISHOR H. BIRLA 15 14. THE FIRST CONTENTION OF ASSESSEE IS THAT ALL THESE ENTRIES WHICH ARE ALLEGED TO BE OF THE ASSESSEE DO NOT RELATE TO THE ASSESSEE. THE FIRST P LEA IN THIS REGARD WAS THAT THERE WAS NO MATCH OF THE NAME OF ASSESSEE WITH THE NOTINGS IN THE SEIZED DOCUMENTS. THE SECOND CONTENTION WHICH IS VEHEMENTLY RAISED BY THE ASSESSEE IS THAT NO EVIDENCE WHATSOEVER OF THE ENTRIES RELATING TO THE YEAR WERE CONFR ONTED TO THE ASSESSEE EVEN THOUGH THE ASSESSEE HAD REPEATEDLY, BEFORE THE ASSESSING OFFICER AND THE CIT(A) HAD SOUGHT THE INFORMATION AS TO HOW THE FIGURE OF RS.34 LAKHS WAS WORKED OUT. ANOTHER CONTENTION WHICH IS RAISED IS THAT WHATEVER EVIDENCES WHICH H AVE BEEN CONFRONTED TO THE ASSESSEE EITHER IN THE REMAND REPORT OR IN THE ORDER OF CIT(A) OF ENTRIES , WHICH WER E FOR THE PERIOD STARTING FROM 01.04.2000 ONWARDS AND HENCE, ON THE BASIS OF SUCH ENTRIES, NO ADDITION COULD BE MADE IN THE HANDS OF ASSESSEE IN FINANCIAL YEAR 1999 - 2000 I.E. PERIOD ENDING 31.03.2000. THE CASE OF AUTHORITIES BELOW ON THE OTHER HAND, IS THAT THE ENTRIES IN SEIZED DOCUMENTS WERE IN THE ABBREVIATED FORM AND SINCE THE ASSESSEE WAS NANDKISHOR I.E. NK AND HE WAS CARRYING ON THE SOLE PROP RIETARY BUSINESS UNDER THE NAME OF BIRLA AGENCY, HENCE, BIRLA NK WAS ABBREVIATED NAME OF ASSESSEE AND THE ENTRIES UNDER SUCH NAME BELONGED TO THE ASSESSEE. THE SECOND SET OF ENTRIES IN THE NAME OF NANDUSHET BIRLA , ACCORDING TO THE AUTHORITIES BELOW ALSO B ELONGED TO THE ASSESSEE. THE BASIS FOR HOLDING SO WAS THE LIST OF INVESTORS FOUND FROM THE PREMISES OF SHRI SONI. THE SAID LIST IS ATTACHED AT PAGE 46 OF THE PAPER BOOK. THE PERUSAL OF SIGNATURE IN FRONT OF NAME OF BIRLA NK IS IN HINDI AND THEY DO NOT M ATCH THE SIGNATURE OF ASSESSEE IN ENGLISH AS EVIDENCED BY THE ACKNOWLEDGED ON FILING THE RETURN OF INCOME FOR THE CAPTIONED ASSESSMENT YEAR, COPY OF WHICH IS PLACED AT PAGE 3 OF PAPER BOOK. ACCORDINGLY, WE FIND NO MERIT IN THE ORDERS OF AUTHORITIES BELOW IN THIS REGARD. ITA NO. 53 /P U N/20 11 NANDKISHOR H. BIRLA 16 1 5 . NOW, COMING TO THE SECOND ASPECT OF THE ISSUE IS THAT HOW THIS AMOUNT OF RS.34 LAKHS IS WORKED OUT. THE REMAND REPORT IS PLACED AT PAGES 16 TO 20 OF THE PAPER BOOK. IN THE REMAND REPORT, THE ASSESSING OFFICER TALKS OF QUANTIFICATIO N OF RS.34 LAKHS ON THE BASIS OF DATA OF BORROWERS FOR THE PERIOD ENDING 31.03.2000. THE ASSESSING OFFICER REFERS TO THE PAPERS / DOCUMENTS SEIZED AS PER BUNDLE NO.100 VIDE ANNEXURE A, PANCHANAMA DATED 02.08.2003 FROM SHRI SHRIRAM H. SONI, WHICH AS PER TH E ASSESSING OFFICER CORROBORATES WITH THE TRANSACTION MENTIONED IN THE PAPERS SEIZED VIDE BUNDLE NO.98 . THE COPY OF BUNDLE NO.100, ANNEXURE A IS ENCLOSED ARE PAGES 18 TO 21 OF THE PAPER BOOK. THE FIRST DOCUMENT IS DATED 28.03.2001, THERE IS NAME OF BIRLA NK AND SECOND DOCUMENT IS DATED 20.01.2001 AND THE THIRD DOCUMENT IS DATED 30.03.2001 I.E. ALL THESE DOCUMENTS RELATE TO ASSESSMENT YEAR 2001 - 02 AND NOT TO ASSESSMENT YEAR 2000 - 01. THESE TABULATED DETAILS IN THE REMAND REPORT ARE FOR PERIOD ENDING 31.03. 2000 , BUT THEY DO NOT RELATE TO THE DOCUMENTS ENCLOSED , WHICH ARE RELATING TO ASSESSMENT YEAR 2001 - 02 AND NOT TO ASSESSMENT YEAR 2000 - 01. FURTHER, THE CIT(A) HAS ALSO REFERRED TO THESE ENTRIES IN PARA 3.8 TO ESTABLISH THAT THE ASSESSEE HAD INVESTED RS.34 LAKHS. THE PERUSAL OF PARA 3.8, WHICH IS REPRODUCED BY US IN THE PARAS HEREINABOVE WOULD CLEARLY SHOWS THAT ALL THOSE ENTRIES ALSO RELATE TO ASSESSMENT YEAR 2001 - 02 AND NOT TO THE YEAR ENDING 31.03.2000. HENCE, THERE IS NO MERIT IN THE ORDERS OF AUTHORITI ES BELOW IN THIS REGARD AND ADDITION HAS BEEN WORKED WITHOUT ANY BASIS FOR INSTANT ASSESSMENT YEAR. 1 6 . NOW, COMING TO THE NEXT CONTENTION OF CIT(A), WHO HAS PLACED STRONG RELIANCE ON THE ORDER OF TRIBUNAL IN THE CASE OF SHRI SONI AND HAS POINTED OUT TH AT WHILE DECIDING THE ISSUE, THE TRIBUNAL HAD ALSO REFERRED TO THE LIST OF ITA NO. 53 /P U N/20 11 NANDKISHOR H. BIRLA 17 INVESTORS AND HAS REFERRED TO THE ENTRIES OF INVESTORS INCLUDING BIRLA IN VARIOUS PAGES. THE ASSESSEE ON THE OTHER HAND, HAS STRONGLY REFUTED THE SAME POINTING OUT THAT HE HAD NEVE R GIVEN SUCH LOANS TO SHRI SHRIRAM H. SONI OR EARNED ANY INTEREST THEREON. THE TRIBUNAL VIDE ORDER DATED 17.06.2010 HAD HELD SHRI SONI TO BE FINANCE BROKER AND HAS DIRECTED THE ADOPTION OF RATE TO WORK OUT INCOME IN HIS HANDS. T HE AUTHORITIES BELOW HAVE STRESSED THAT SINCE THE TRIBUNAL HA D ALREADY REFERRED TO THE NAME OF NANDKISHOR H. BIRLA AND CONSEQUENTLY, THE CASE OF REVENUE WA S ESTABLISHED AND THE ADDITION WA S TO BE MADE IN THE HANDS OF ASSESSEE. WHILE DECIDING THE CASE OF SHRI H. SONI, THE TRIBUNAL RELIED ON THE PROVISIONS OF SECTION 132(4A) OF THE ACT, WHEREIN THERE IS PRESUMPTION THAT IF ANY DOCUMENT IS FOUND FROM THE POSSESSION OF SEARCHED PERSON, THEN THE SAME IS PRESUMED TO BELONG TO SUCH PERSON UNLESS AND UNTIL HE PROVES OTHERWISE. SO, ON THE B ASIS OF DOCUMENT FOUND FROM THE POSSESSION OF SHRI SONI, THE ADDITION WAS WORKED OUT IN THE HANDS OF SAID PERSON BY THE TRIBUNAL. HOWEVER, WHEN THE ADDITION HAS TO BE MADE IN THE HANDS OF ASSESSEE BEFORE US WHOSE NAME MAY APPEAR ON THOSE SEARCHED DOCUMENT , T HE ONUS IS MUCH HIGHER ON THE REVENUE AUTHORITIES . I N ORDER TO ESTABLISH THAT THE ENTRIES RELATE TO THE ASSESSEE, THEN STRONG EVIDENCE SHOULD BE AVAILABLE ON RECORD IN THIS REGARD. WE HAVE ALREADY REFERRED TO THE EVIDENCE FOUND ON WHICH RELIANCE IS BE ING MADE I.E. ENTRIES IN THE SEIZED DOCUMENTS. IN THE CASE OF BORROWERS, ADDITIONAL EVIDENCE BY WAY OF PROMISSORY NOTES AND CHEQUES OF THE PERSONS, WHO HAD TAKEN LOAN WERE FOUND. HOWEVER, IN THE CASE OF INVESTORS, NO OTHER DOCUMENT WA S FOUND. THE REVENU E HAS NOT PLACED ON RECORD ANY EVIDENCE . E VEN THE DOCUMENTS REFERRED TO BY BOTH THE ASSESSING OFFICER IN THE REMAND PROCEEDINGS AND THE CIT(A) IN HIS ORDER , RELAT E TO THE SUCCEEDING YEAR. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE DURING THE COURSE OF HEARING WAS TIME AND AGAIN ASKED TO PRODUCE SEIZED MATERIAL IN ORDER TO ITA NO. 53 /P U N/20 11 NANDKISHOR H. BIRLA 18 ESTABLISH THE CASE OF REVENUE THAT THE ENTRIES RELATING TO THE YEAR UNDER CONSIDERATION WERE FOUND AND FURNISH SUFFICIENT EVIDENCE AGAINST THE ASSESSEE. HOWEVER, DESPITE AL LOWING SEVERAL OPPORTUNITIES TO THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE AND ADJOURNING THE CASE FROM TIME TO TIME, NO SEIZED MATERIAL WAS PRODUCED TO ESTABLISH THE CASE OF REVENUE. IN THE ABSENCE OF THE SAME, WE FIND NO MERIT IN THE ADDITI ON MADE IN THE HANDS OF ASSESSEE. IN THIS REGARD WE PLACE RELIANCE ON VARIOUS ORDERS PASSED BY THE TRIBUNAL IN RESPECT OF ENTRIES OF SHRI SONI. 17. THE FIRST SUCH CASE IS THAT TULSIRAM JODHARAJ PALLOD VS. ITO (SUPRA). THE PUNE BENCH OF TRIBUNAL IN THE CASE OF M/S. KEJALS FURNISHINGS VS. ACIT (SUPRA) HAS REFERRED TO THE CASE OF ALLEGED INVESTORS WITH SHRI SONI. THE TRIBUNAL VIDE PARA 11 IN TURN, HAD RELIED ON THE DECISION IN THE CASE OF JAGANNATH EKNATH LAHOTI (HUF) VS. ITO (SUPRA) TO HOLD AS UNDER: - 11. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. WE FIND THE AO IN THE INSTANT CASE MADE AN ADDITION OF RS.1,04,500/ - ON THE BASIS OF CERTAIN DOCUMENTS SEIZED FROM THE PREMISES OF ONE MR. SHREERAM H. SONI. WE FIND THE AO CONFRONTED THE NOTINGS OF THE SEIZED DOCUMENTS TO THE ASSESSEE. THE ASSESSEE VIDE HIS REPLY DA TED 07 - 12 - 2007 HAD SUBMITTED THAT IT HAS NEVER LENT ANY FUNDS TO SONI GROUP. IT WAS CATEGORICALLY STATED THAT THE NOTINGS ARE RELATING TO ONE MR. RASHMI GANDHI AND IT DOES NOT PERTAIN TO THE ASSESSEE FIRM. IT WAS ALSO STATED THAT NO EVIDENCE WHATSOEVER WAS AVAILABLE WITH THE DEPARTMENT THAT THE SONI GROUP HAS ACCEPTED THAT THIS PARTICULAR ASSESSEE HAS ADVANCED FUNDS TO SONI GROUP. THE ASSESSEE VIDE ANOTHER LETTER DATED 26 - 12 - 2007 HAS ALSO ASKED THE AO TO ALLOW HIM TO CROSS EXAMINE SHREERAM H. SONI IN CA SE SHREERAM H. SONI HAD STATED THAT THE ASSESSEE HAS ADVANCED ANY MONEY TO HIM OR SOME OF THE NOTINGS IN SEIZED PAPER PERTAIN TO THE ASSESSEE. FROM THE ASSESSMENT ORDER AS WELL AS THE ORDER OF THE LD.CIT(A), WE FIND NO SUCH OPPORTUNITY WHATSOEVER WAS GRAN TED TO THE ASSESSEE TO CROSS EXAMINE MR. SONI. FROM THE SEIZED DOCUMENTS, WE FIND AT ONE PLACE IT IS WRITTEN KAJALS RASHMI G (PAGES 33 & 34 OF PAPER BOOK). SIMILARLY, AT ANOTHER PLACE, IT IS WRITTEN RASHMI GANDHI G.KEJALS (PAGE 58 OF THE PAPER BOOK) IN HINDI. SIMILARLY, IN ANOTHER PLACE, IT IS WRITTEN KEJALS USHICOVER PARTLY IN ENGLISH AND PARTLY IN HINDI AT PAGE 62. FROM THE ABOVE, IT IS SEEN THAT THE SEIZED DOCUMENT CLEARLY SHOW DIFFERENT NAMES. THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSE E THAT THE ASSESSEE DOES NOT DEAL WITH PILLOW COVERS (I.E. USHICOVER IN HINDI) COULD NOT BE CONTROVERTED BY THE LD. DEPARTMENTAL REPRESENTATIVE. THE ASSESSING OFFICER HAS ALSO NOT ITA NO. 53 /P U N/20 11 NANDKISHOR H. BIRLA 19 SUMMONED MR. RASHMIKANT GANDHI TO FIND OUT THE VERACITY OF THE SUBMISSION O F THE ASSESSEE FIRM THAT IT HAS NOT LENT ANY MONEY TO MR. SONY. THE NOTINGS IN OUR OPINION, DO NOT CLEARLY INDICATE THAT THE FIRM HAS ADVANCED ANY MONEY. IT MAY AT BEST BE THAT OF ONE INDIVIDUAL MR. RASHMI GANDHI IN WHOSE HANDS ADDITION COULD HAVE BEEN MADE. HOWEVER, THE ASSESSING OFFICER HAS NOT EXAMINED THAT PERSON. 11.1 WE FIND AN IDENTICAL ISSUE HAD COME UP BEFORE THE TRIBUNAL IN THE CASE OF JAGANNATH EKNATH LAHOTI (HUF) (SUPRA). WE FIND UNDER IDENTICAL FACTS AND CIRCUMSTANCES THE TRIBUNAL HAS DEL ETED THE ADDITION BY OBSERVING AS UNDER: 8. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOU S DECISIONS CITED BEFORE US. WE FIND THE ASSESSING OFFICER IN THE INSTANT CASE MADE ADDITION OF RS.15 LAKHS AND CORRESPONDING INTEREST AS WELL AS BROKERAGE ON THE SAME ON THE BASIS OF CERTAIN DOCUMENTS SEIZED FROM THE PREMISES OF MR. SHRIRAM H. SONI. IT IS AN ADMITTED FACT THAT DURING THE COURSE OF SEARCH IN THE PREMISES OF MR. SHRIRAM H. SONI HIS STATEMENT WAS RECORDED U/S.132(4) AND HE HAD REFUSED SPECIFICALLY TO IDENTIFY EACH AND EVERY INVESTOR/OPERATOR. ALTHOUGH CREDITS APPEARING IN THE SEIZED DIARIE S IN THE NAME OF DIFFERENT INVESTORS WAS TREATED AS UNDISCLOSED INCOME OF MR. SHRIRAM H. SONI BY THE CIT(A), HOWEVER, THE TRIBUNAL VIDE ORDER DATED 17 - 06 - 2010 HAS REVERSED THE SAME BY HOLDING THAT PERSONS ARE IDENTIFIABLE AND ALL THE MATERIALS AVAILABLE CL EARLY SHOW THAT MR. SHRIRAM H. SONI HAS ONLY EARNED COMMISSION. BE THAT AS IT MAY BE, MR. SHRIRAM H. SONI HAD REFUSED TO IDENTIFY EACH AND EVERY PERSON. WE FIND THE SEIZED DIARIES/PAPERS CLEARLY SHOW DIFFERENT NAMES SUCH AS JAGANNATH LAHOTI AND JAGUSE TH LATI. HOWEVER, WE FIND NO ADDITION HAS BEEN MADE ON ACCOUNT OF ENTRIES APPEARING IN THE NAME OF THE ASSESSEE, I.E. JAGANNATH LAHOTI. EVEN THE ENTRIES APPEARING IN THE NAME OF THE ASSESSEE FOR SUBSEQUENT YEARS HAS ALSO NOT BEEN BROUGHT TO TAX BY REOPE NING THE ASSESSMENT, A STATEMENT MADE BY LD. AUTHORISED REPRESENTATIVE AND NOT CONTROVERTED BY THE LD. DEPARTMENTAL REPRESENTATIVE. WE, THEREFORE, FIND MERIT IN THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE DEPARTMENT BY NOT REOPENING THE AS SESSMENT IN THE SUBSEQUENT YEAR HAS ACCEPTED THAT JAGANNATH LAHOTI IS DIFFERENT FROM JAGUSETH LATI. FURTHER, THE ASSESSEE FROM THE VERY BEGINNING WAS DENYING THAT HE IS THE SAME PERSON. WE FIND NEITHER ANY PROMISSORY NOTE NOR ANY SECURITY IN THE NAME OF THE ASSESSEE NOR ANY CONFIRMATION OR ANY OTHER CORROBORATIVE EVIDENCE WAS FOUND FROM THE PREMISES OF MR. SHRIRAM H. SONI SO AS TO PROVE THAT THE ASSESSEE IS THE SAME PERSON ESPECIALLY WHEN MR. SHRIRAM H. SONI IN HIS STATEMENT RECORDED U/S.132(4) HAS RE FUSED TO IDENTIFY EACH AND EVERY INVESTOR. 8.1 WE FIND UNDER SIMILAR FACTS THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF ASHOK KESHVLAL OSWAL (SUPRA) HAS DISMISSED THE APPEAL FILED BY THE REVENUE WHEREIN THE CIT(A) HAS DELETED THE ADDITION OF RS.2 2,02,2000/ - MADE BY THE ASSESSING OFFICER ON ACCOUNT OF ADDITIONS MADE ON THE BASIS OF DOCUMENTS FOUND FROM THE RESIDENCE OF SHRIRAM SONI DURING THE COURSE OF SEARCH AND SEIZURE OPERATION. THE RELEVANT OBSERVATION OF THE TRIBUNAL READS AS UNDER : 5. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTIES AND PERUSED THE RECORD. THE FIRST ISSUE WE HAVE TO DECIDE IS WHETHER THE IDENTITY OF THE ASSESSEE IS PROVED THAT HE IS THE SAME OSWAL ITA NO. 53 /P U N/20 11 NANDKISHOR H. BIRLA 20 ASHOK OR OSWAL ASK. AS PER THE REMAND REPORT GIVEN BY THE ASSESSING OFFICER, NO PROMISSORY NOTE OR BLANK CHEQUES ON THE NAMES OF THE ASSESSEE WERE FOUND. ON PERUSAL OF THE REMAND REPORT, WE FIND THAT ASSESSING OFFICER HIMSELF HAS EXAMINED MANY PERSONS ON SUSPICION, WHOSE NAMES WERE ASHOK OSWAL AND THE MIDDLE NAME WAS DI FFERENT. ADMITTEDLY, IN THE SEIZED DOCUMENT, THERE IS NO MIDDLE NAME. THE ASSESSEE FILED THE SPECIFIC AFFIDAVIT DENYING HAVING ANY RELATION WITH SHRIRAM H. SONI. IN THE REMAND PROCEEDINGS, THE AO EXAMINED BANK ACCOUNT AND HAS REPORTED THAT NO TRANSACTIO N WAS FOUND BETWEEN SHRIRAM H. SONI AND THE ASSESSEE. IT IS VERY MUCH INTERESTING THAT WHEN THE AO HIMSELF IS NOT SURE ABOUT THE IDENTITY OF OSWAL ASHOK, THE NAME WHICH IS FOUND IN THE SEIZED DOCUMENT, HOW THE ASSESSEE CAN BE FASTENED WITH THE LIABILITY OF UNACCOUNTED TRANSACTIONS. WE FIND THAT THE AO HIMSELF ADMITS THAT THE ASSESSEE HAS SPECIFICALLY DENIED. LAW IS WELL SETTLED THAT BURDEN IS ON THE REVENUE TO ESTABLISH THE IDENTITY IF ANY PERSON IS TO BE CHARGED UNDER THE ACT. THE ACTION OF THE AO EX AMINING THE DIFFERENT PERSONS HAVING THE SAME NAME PRIMA - FACIE ESTABLISHES THAT ASSESSING OFFICER HIMSELF IS NOT SURE THAT THE ASSESSEE IS THE SAME PERSON WHOSE NAME WAS FOUND NOTED IN THE SEIZED DOCUMENT. MOREOVER, NOTHING IS ON RECORD TO SHOW THAT SHRIR AM H. SONI HAS STATED ABOUT THE ASSESSEE THAT WHATEVER THE NOTINGS FOUND WERE IN RESPECT OF THE ASSESSEE. NO CORROBORATIVE MATERIAL IS FOUND. IN OUR OPINION, THE LD.CIT(A) HAS RIGHTLY DELETED THE ENTIRE ADDITION AS THERE IS NO EVIDENCE AGAINST THE ASSESS EE. WE FIND NO MERIT IN THE APPEAL FILED BY THE REVENUE. ACCORDINGLY, THE SAME IS DISMISSED. 8.2 SINCE IDENTITY OF THE ASSESSEE WAS NOT PROVED BY MR. SHRIRAM H. SONI AT ANY POINT OF TIME NOR ANY CORROBORATIVE EVIDENCE WAS FOUND FROM THE RESIDENCE OF MR .SHRIRAM H. SONI SO AS TO PROVE THAT THE ASSESSEE IS THE SAME PERSON AS PER THE NAME APPEARING IN THE SEIZED DOCUMENT, THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF ASHOK KESHVLAL OSWAL (SUPRA) AND IN ABSENCE OF ANY CONTRARY MATERIAL BROUGHT TO OUR NOTICE, WE SET - ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION. 11.2 SINCE THE FACTS OF THE INSTANT CASE ARE IDENTICAL TO THE FACTS IN THE CASE OF JAGANNATH EKNATH LAHOTI (HUF) (SUPRA), THEREFORE, FOLLOWING THE SAME RATIO, WE HOLD THAT NO ADDITION IS CALLED FOR IN THE INSTANT CASE. WE ACCORDINGLY SET ASIDE THE ORDER OF THE CIT(A) ON THIS ISSUE AND DIRECT THE AO TO DELETE THE ADDITION OF RS.1,04,500/ - . GROUNDS RAISE D BY THE ASSESSEE ARE ACCORDINGLY ALLOWED. 1 8 . THE ISSUE ARISING BEFORE US IS IDENTICAL TO THE ISSUE BEFORE THE TRIBUNAL IN M/S. KEJALS FURNISHINGS VS. ACIT (SUPRA) AND FOLLOWING THE SAME PARITY OF REASONING AND IN THE ABSENCE OF ANY SEIZED MATERIAL FOUN D OR PRODUCED BEFORE US RELATING TO THE YEAR UNDER APPEAL, THERE IS NO MERIT IN THE ADDITION OF RS.34 LAKHS ALLEGED TO HAVE ADVANCED BY THE ASSESSEE DURING THE YEAR. IT MAY FURTHER ITA NO. 53 /P U N/20 11 NANDKISHOR H. BIRLA 21 BE POINTED OUT THAT THE ASSESSING OFFICER WHILE COMPUTING INTEREST IN THE CASE OF ASSESSEE ON SUCH ADVANCEMENT OF LOAN, HA D COMPUTED THE INTEREST FOR THE PERIOD OF 12 MONTHS. IN OTHER WORDS, CASE OF REVENUE IS THAT THE AMOUNT WAS INVESTED FOR THE FULL 12 MONTHS WITH SHRI SONI, ON WHICH INTEREST HA D BEEN WORKED OUT AT RS.7,14,00 0/ - . IN CASE INTEREST O F 12 MONTHS IS ADDED IN THE HANDS OF ASSESSEE, THEN NO ADDITION CAN BE MADE ON ACCOUNT OF INVESTMENT MADE BY THE ASSESSEE, SINCE THE AMOUNT WOULD HAVE BEEN ADVANCED IN THE PRECEDING YEAR AND NOT IN THE YEAR UNDER CONSIDERATION. IN ANY CASE, ONCE WE HAVE DELETED THE ADDITION OF RS.34 LAKHS, CONSEQUENT ADDITION OF INTEREST EARNED ON THE SAID ADVANCE OF RS.34 LAKHS ALSO STANDS DELETED. THE ONUS FOR SUBSTANTIATING THAT THE ENTRIES BELONGED TO THE ASSESSEE WAS STRONGLY UPON THE REVENUE AND THE REVENUE HAS FAILED TO DISCHARGE ITS ONUS AND IN THE ABSENCE OF THE SAME AND IN VIEW OF VARIOUS OTHER POINTS / ISSUES , WE FIND NO MERIT IN THE ORDERS OF AUTHORITIES BELOW. 1 9 . BEFORE PARTING, WE MAY ALSO REFER TO THE RATIO LAID DOWN BY THE HONBL E HIGH COURT OF ALLAHABAD IN CIT VS. SALEK CHAND AGARWAL (SUPRA), WHEREIN IT HAS BEEN HELD AS UNDER: - 4. WE HAVE HEARS SHRI A.N. MAHAJAN, LEARNED COUNSEL FOR THE REVENUE, 4 AND SHRI J.C. BHARDWAJ, LEARNED COUNSEL FOR THE RESPONDENT ASSESSEE, AND WE HAVE A LSO PERUSED THE ORDER OF THE TRIBUNAL. WE FIND FROM THE ORDER OF THE TRIBUNAL THAT APART FROM THE ENTRIES FOUND IN THE BOOKS OF ACCOUNT OF M/S KANHAIYA LAL OM PRAKASH AND BALDEV PRASAD OF MUZAFFARNAGAR, THERE WAS NO MATERIAL WHICH COULD LINK THE ADVANCE/D EPOSIT OF RS.2,20,000/ - TO THE RESPONDENT - ASSESSEE, MORE SO WHEN THE RESPONDENT - ASSESSEE HAD DENIED TO MAKE ANY SUCH ADVANCE/DEPOSIT WITH THE SAID FIRM. THE PROVISIONS OF S.69 OF THE ACT ARE NOT ATTRACTED IN THE PRESENT CASE AND, THEREFORE, THE TRIBUNAL W AS JUSTIFIED IN DELETING THE SAID ADDITION. 20 . THE ADDITION MADE IN THE HANDS OF ASSESSEE IS UNDER SECTION 69 OF THE ACT AND SINCE THE ASSESSEE HA D DENIED TO HAVE MADE ANY SUCH ADVANCE, THEN FOLLOWING THE RATIO LAID DOWN BY THE HONBLE HIGH COURT OF ALL AHABAD IN CIT VS. ITA NO. 53 /P U N/20 11 NANDKISHOR H. BIRLA 22 SALEK CHAND AGARWAL (SUPRA), THE PROVISIONS OF SECTION 69 OF THE ACT ARE NOT ATTRACTED AND HENCE, NO ADDITION IS WARRANTED IN THE HANDS OF ASSESSEE OF RS.34 LAKHS. CONSEQUENTLY, NO OTHER ADDITION ON ACCOUNT OF INTEREST EARNED ON SUCH ADV ANCES IS TO BE MADE IN THE HANDS OF ASSESSEE. WE HOLD SO. THE GROUNDS OF APPEAL NOS.4 TO 8 ARE THUS, ALLOWED. 2 1 . IN THE RESULT, THE APPEAL OF ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED ON THIS 30 TH DAY OF JUNE , 201 7 . SD/ - SD/ - (ANIL CHATURVEDI ) (SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 30 TH JUNE , 201 7 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLA NT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - II, PUNE ; 4. / THE CIT - II , PUNE ; 5. , , / DR B , ITAT, PUNE; 6. / GUARD FILE . / BY ORDER , // TRUE COPY // / ASSISTANT REGISTRAR, , / ITAT, PUNE