Dr. Naresh Mittal, Panchkula V. DCIT, Chandigarh

ITA 539/CHANDI/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7491 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 year(s) 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 15-09-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 19-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHISH ABROL
• Keywords: Unexplained cash credit; Unexplained expenditure; Gift; Loose papers; Document seized; Opportunity of being heard; Source of fund; Deemed to accrue or arise in india; Difference of opinion; Corroborative evidences; Valuation report; Documents seized
• Section: 69C; 68; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCHES B, CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER AND DR. B.R.R.KUMAR, ACCOUNTANT MEMBER ITA NO. 539/CHD/2015 ASSESSMENT YEAR: 2011-12 DR. NARERSH MITTAL, VS THE DCIT, 212,SECTOR 6, CIRCLE-II, PANCHKULA. CHANDIGARH. PAN : AEEPM0077R (A PPELLANT) (RESPONDENT) APPELLANT BY : SHRI PARIKSHIT AGGARWAL RESPONDENT BY : SHRI ASHISH ABROL, CIT-DR DATE OF HEARING : 24.05.2018 DATE OF PRONOUNCEMENT : 27.07.2018 ORDER PER DIVA SINGH THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASS AILING THE CORRECTNESS OF THE ORDER DATED 12.03.2015 OF PR. CIT(OSD ), GURGAON PERTAINING TO 2011-12 ASSESSMENT YEAR ON VARIOUS GROUNDS. 2. THE ORIGINAL GROUNDS RAISED BY THE ASSESSEE, IT WAS NO TICED, WERE ARGUMENTATIVE REPETITIVE THE LD. AR WAS REQUIRED TO MODIFY , HOWEVER IT WAS INSISTED BY THE COUNSEL THAT THEY ADDRESS THE ISSUES A ND HE WILL BE ABLE TO SHOW THAT THERE IS NO REPETITION. HOWEVER, AFTER ATTEMPTIN G TO ADDRESS THESE, IT WAS CONCEDED THAT THERE APPEARS TO BE A LACK OF CLARITY. IN THE CIRCUMSTANCES, HE FILED REVISED GROUNDS. THE LD. CIT-DR O N CONSIDERING THE SAME POSED NO OBJECTION TO THEIR SUBSTITUTION AND CANDID LY SAID THAT NOTHING NEW IS RAISED IN THE GROUNDS AND THEY MAY BE AD MITTED. ACCORDINGLY, THE REVISED GROUNDS WERE SUBSTITUTED FOR TH E ORIGINAL GROUNDS. THESE ARE REPRODUCED HEREUNDER : 1. THE ORDER PASSED BY THE LEARNED CIT (A) IS CONTRARY TO LAW & FACTS OF THE CASE. 2. THE LEARNED CIT (A) HAS ERRED IN LAW AND FACTS IN U PHOLDING THE ADDITION OF RS. 32,21,996/- OUT OF/ADDITION OF RS. 45,10,982/- MADE BY THE ASSESSIN G OFFICER ON ACCOUNT UNEXPLAINED JEWELLERY FOUND AT/ASSESSEE'S RESIDENCE AND IN BANK LOCKERS. THE ADDITION OF RS. 32,21,996/- IS REQUESTED TO BE DELETED. 3. THE LEARNED CIT(A) HAS ERRED IN LAW AND FACTS IN UP HOLDING THE ADDITION OF RS. 10 LACS MADE BY ASSESSING OFFICER U/S 68 ON ACCOUNT OF UNEXPLAIN ED CASH WHICH WAS ADVANCE RECEIVED FROM SH. AMIT KUMAR FOR SALE OF A PLOT AT AMRAVATI ENCLAVE ( INADVERTENTLY MENTIONED AS MANIMAJRA IN ITA 539/CHD/2015 A.Y. 2011-12 PAGE 2 OF 25 APPEAL BEFORE CIT(A)). THE ADDITION MADE IS REQUEST ED TO BE DELETED. 4. THE LEARNED CIT(A) HAS ERRED IN LAW AND FACTS IN UP HOLDING THE ADDITION OF RS. 10 LACS MADE BY ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF IT ACT 1961 WHEREAS THERE WAS NO CREDIT ENTRY OF RS. 10 LACS IN THE NAME OF AMIT CHAUDHARY IN HIS BOOKS OF ACCOUNT. THE ADDITION MADE IS REQUESTED TO BE DELET ED. 5. THE LEARNED CIT(A) HAS ERRED IN LAW AND FACTS IN U PHOLDING THE ADDITION OF RS 26,89,250/- MADE BY ASSESSING OFFICER. NO ADDITION COULD BE MADE BY INV OKING THE PROVISIONS OF SECTION 69B READ WITH SECTION 292C IN THE ABSENCE OF ANY MATERI AL ON RECORD THAT SUCH AN INVESTMENT IS MADE DURING THE FY 2010-11. THE ADDITION MADE IS REQUEST ED TO BE DELETED. 6. THE LEARNED CIT(A) HAS ERRED IN LAW AND FACTS IN U PHOLDING THE ADDITION OF RS 2,39,350/- MADE BY ASSESSING OFFICER. NO ADDITION COULD BE MADE BY TREATING THE UNSIGNED, UNDATED DUMB DOCUMENTS AS A RELATING TO CURRENT YEAR. THE ADDITI ON MADE IS REQUESTED TO BE DELETED 7. THE LEARNED CIT(A) HAS ERRED IN LAW AND FACTS IN UP HOLDING THE ADDITION OF RS 23,47,850/- MADE BY (/ ASSESSING OFFICER. NO ADDITION COULD BE MADE BY INV OKING THE PROVISIONS OF SECTION 69B READ WITH SECTION 292C IN THE ABSENCE OF ANY MA TERIAL ON RECORD THAT SUCH AN INVESTMENT IS MADE DURING THE FY2010-11. THE ADDITI ON MADE IS REQUESTED TO BE DELETED. 8. THE LEARNED CIT(A) HAS ERRED IN LAW AND FACTS IN U PHOLDING THE ADDITION OF RS 75,000/- MADE BY ASSESSING OFFICER BASED ON SEIZED DOCUMENT PAGE 30 OF ANNEXURE A-2 BY IGNORING THE SUBMISSIONS THAT ASSESSEE HAD MADE CASH WITHDRAWALS OF RS. 5.5 LACS (EXCLUDING JEWELLERY OF RS. 22,00,000/- APPROX.) FOR MARRIAGE OF HIS SON IN NOVEMBER 2010. THE ADDITION MADE IS REQUESTED TO BE DELETED. 3. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSESS EE WAS SUBJECTED TO A SEARCH & SEIZURE OPERATION ON 17.11.2010 WHEREIN CERTA IN DOCUMENTS WERE SEIZED. IN RESPONSE TO THE NOTICES ISSUED ETC., THE ASSESSEE FILED ITS RETURN. THE AO NOT ACCEPTING THE RETURNED INCOME AFTER ISSUING OF STATUTORY NOTICE REQUIRED THE ASSESSEE TO JUSTIFY THE JEWELLERY FOU ND IN THE COURSE OF THE SEARCH FROM THE RESIDENTIAL PREMISES AND BANK LOCKERS ; CASH FOUND; AND ALSO THE DOCUMENTS FOUND IN THE COURSE OF THE SEARCH. A FTER CONSIDERING THE SUBMISSIONS, THE ASSESSING OFFICER MADE VARIOUS ADDITIONS TO THE RETURNED INCOME OF THE ASSESSEE. THE ADDITIONS WERE CHA LLENGED IN APPEAL BEFORE THE CIT(A). THE CIT(A) GRANTED PART RELIEF TO THE A SSESSEE. TO THE EXTENT THE ADDITIONS WERE SUSTAINED, THE ASSESSEE IS IN A PPEAL BEFORE THE ITAT. 4. THE LD. AR AT THE TIME OF HEARING SUBMITTED THAT SINCE IN THE COURSE OF THE HEARING, THERE BEING VARIOUS ARGUMENTS TO ADDRESS THE FACTUAL ASPECT WHICH WAS ADDRESSED IN THE ORDERS , PARTIES HAD BEEN G IVEN TIME TO EXCHANGE THE DOCUMENTS AND SUBMISSIONS WHICH SUMMED UP THEIR RESPECTIVE STANDS ON THE ISSUES PENDING ADJUDICATION. AC CORDINGLY, ATTENTION WAS INVITED TO THE SYNOPSIS FILED WHICH WOULD COM PREHENSIVELY ADDRESS THE ISSUES. THE LD. CIT-DR ALSO FILED TABULAR REPRES ENTATION OF THE JEWELLERY FOUND, EXPLAINED AND CONSIDERED BY THE AO AND T HE CIT(A) STATING THAT HOW THE ISSUE STANDS ADDRESSED WOULD BE ARGUED A S THIS WOULD CLARIFY ITA 539/CHD/2015 A.Y. 2011-12 PAGE 3 OF 25 THE ISSUE. THE SYNOPSIS OF ARGUMENTS ON BEHALF OF THE ASS ESSEE, IT WAS STATED, HAD BEEN RECEIVED BY HIM. THESE ARE REPRODUCED HEREUND ER : A TABULAR PRESENTATION OF THE CLAIM MADE BY THE LD AR WITH REGARDS TO GROUND OF APPEAL RELATED TO ADDITION ON ACCOUNT OF JEWELRY IS SUBMIT TED HEREWITH AS IT WILL FACILITATE THE REVENUE'S ORAL SUBMISSIONS PROPOSED. TABLE OF CLAIM MADE BY ASSESSEE SR. NO WHERE FOUND WEIGHT/ DES CRPTION VALUE IN 1NR VAL/ PB AO CIT (A) RELIEF ASSESSEE EXPLANATION 1 RESIDENCE 27 OF PB 45,16,808.00 24-27 REFER ANN-A GINNIS 3,02,400.00 ALLOWED/ P4 OF AO NA JEW. WITH BILLS 22,07,601.00 ALLOWED/ P4 OF AO NA BALANCE 20,06,807.00 ADDED BY AO 10,00,000.00 2 LOCKER NO. 169 BOB 12,74,803.00 28-30 ADDED BY AO REFER ANN-B 2,88,986.00 3 LOCKER NO 5 PNB 12,29,372.00 31-34 ADDED BY AO REFER ANN-C TOTAL AO ADDN. 45,10,982.00 APPOX 1293 G ADDITIONS CONFIRMED BY CIT (WT NOT CLEAR) 32,21,996.00 ADDITIONS CONFIRMED BY CIT 32,21,996.00 TOTAL PLEA BASIS REF 1293 G MOST JEWELLERY IS ACCOUNTED FOR OR OLD JEWELLERY ON THE BASIS OF LOOSE SEIZED PAPERS = 1860 G (940GM + 1293 GMS -317.99GMS-55GMS F ASHITA NOT CONSIDERED IN 1293 GMS) NO. OF LOOSE SHEETS PLUS DIAMOND JEWELLERY OF 2,63, 500/- JEWELLERY MENTIONED ON PAGE 61 BEING ( 4 GOLD COINS, 2 KADE, 2 DIAMOND SETS, ONE KUNDAN SET AND ONE GOLD SET) PB61 PLEA BASIS REF A. JEWELRY BELONGS TO ASHITA, MARRIED DAUGHTER OF THE ASSESSEE A. ASHITA'S STATEMENT / AFFIDAVIT C. LOOSE SLIP (PB61) JEWELLRY PERTAINS TO ASHITA A. PB 61 OF PAPER BOOK LOOSE SLIP DETAILS OF JEWELLERY OF B. ASHITA AFFIDAVIT 52PB 940 GRAMS IS OLD B. LOOSE SHEET DATED 5-10-2003 GIVING DETAILS OF LOCKER CONTENTS OF 94 TOLAS MATCHES JEWLERY FOUND PB 91 (LOOSE SHEET) / LOCKER VALUATION REPORT PB 29 PG 5-6 C1T A ORDER OUT OF SALE OF AGRI LAND ASHITA SALE DEED OF AGRI LAND IN 1999 34-51 OF PB AND CIT(A) ORDER PAGE 1 6 PLEA BASIS REF A 609 G . JEWLERY IN LOCKER PERTAINS TO SADHNA ARYA A. SADHNA ARYA / AFFIDAVIT A. PB 53 AFFIDAVIT OF SADHNA ARYA B. IT IS OLD FAMILY GOLD BASED ON A NUMBER OF LOOSE SLIPS ITA 539/CHD/2015 A.Y. 2011-12 PAGE 4 OF 25 5. THE COMPREHENSIVE SYNOPSIS FILED ON BEHALF OF THE ASSESS EE MADE AVAILABLE TO THE DEPARTMENT WHEREIN THE ARGUMENTS ADVAN CED AND THE MATERIAL AVAILABLE ON RECORD RELIED UPON BY THE LD. AR IS ALS O EXTRACTED HEREUNDER : SYNOPSIS BEFORE INCOME TAX APPELLATE TRIBUNAL BENCH B CHANDI GARH BRIEF SYNOPSIS IN THE CASE OF DR. NARESH MITTAL IN APEAL NO. 539/CHD/2015. AY 2011-12 MADAM, AS DESIRED A BRIEF SYNOPSIS IN RESPECT OF VARIOUS G ROUNDS OF APPEAL ARE AS BELOW: GROUND NO. 2: IN THIS GROUND, ADDITION OF RS. 32,21,9967- SUSTAIN ED BY CIT(A) ON ACCOUNT OF EXCESS JEWELRY FOUND AT RESIDENCE AND LOCKERS HAS B EEN CHALLENGED. SEARCH CONDUCTED ON 17.11.2010. STARTED AT 9PM ON 17.11.2010 AND TEMPORARILY CONCLUDED AT 5.00PM ON 18.11.2010. MARRIAGE OF SON AKASH MITTAL FIXED FOR 30.11.2010. ASSESSEE HAD PURCHASED JEWELRY OF APPRO X. 22 LACS FOR HIS MARRIAGE. DURING SEARCH JEWELRY VALUED AT RS. 70,72,9837- WAS FOUND AT RESIDENCE AND IN TWO LOCKERS. VALUATION REPORTS ARE PLACED AT PAGE 24-27 (RESIDENCE), 28-30 (LOCKER NO. 169 BOB SEC. 8 PANCHKULA, 31-34 (LOCKER NO. 5 PNB SECTOR 5 PANCHKULA) OF PAPER BOOK. OUT OF ABOVE, JEWELRY VALUING RS. 4273996/- WAS SEI ZED. JEWELRY RECEIVED FOR APPROVAL FOR MARRIAGE OF HIS S ON, WHICH WAS FIXED FOR 30.11.2010 AND FOR WHICH BILLS WERE AVAILABLE AND PAYMENT WAS MADE THR OUGH CHEQUE AMOUNTING TO RS. 2207601/- AND GINNIES VALUED AT RS. 302400/- RECEIVED AT THE TIKKA CEREMONY OF AKASH MITTAL (SON) WERE TREATED AS EXPLAINED JEWELRY (REFER PAGE 4 OF ASSESSMENT ORDER) AND FOR BALANCE JEWELRY ADDITION OF RS. 4510982/- WAS MADE BY AO. CIT(A) ALLOWED RELIEF OF RS. 2,88,986/- ON ACCOUNT OF JEWELRY OF ASHITA MITTAL DAUGHTER WHICH WAS IDENTIFIED BY HER FROM HER MARRIAGE PHOTOGRAPHS AND ADHOC RELIEF OF RS. 10 LACS WAS ALLOWED, WITHOUT CONSIDERING ASSESSEE'S DETAILED EX PLANATION AND ALSO THE BOARDS CIRCULAR NO. 1916 DATED 11.05.1994 ASSESSEE HAD EXPLAINED THAT LARGE NO. OF LOOSE SLIP S WERE FOUND DURING SEARCH AND COPIES WERE SUBMITTED AS AT PAGE 56 -94 OF PB AND REFERENCE TO ANNEXURE AND PAGE NO. OF ANNEXURE AT PAGE 5 OF CIT(A) ORDER. PB PAGE 91 (PAGE 157 OF ANNEX A3) DEPICTS DETAI LS OF JEWELRY IN LOCKER IN BANK OF BARODA NO. ON 15.10.2003 WITH WEIGHT OF 94 TOLA. CONFIRMAT ION FROM BANK THAT LOCKER WAS OPERATED ON 15.10.2003 IS PLACED AT PAGE 134 OF PB. MANY ITE MS MENTIONED ON PB PAGE 91 FOUND INTACT IN BOB LOCKER REFER TO VALUATION REPORT OF JEWELRY OF BOB PLACED AT PAGE 28-30 OF PB. (REF SUBMISSION ON PAGE 5 & 6 OF CIT(A) ORDER). PAGE 61 OF PAPER BOOK IS LOOSE SLIP FOUND GIVING DETAILS OF JEWELRY OF ASHITA-OF DIAMOND SET, GOLD CHAIN, DIAMOND RING, 4 GOLD COINS, 2 KADE, ONE DIAM OND SET, ONE KUNDAN SEF ARID ONE GOLD SET. REF TABLE AND SUBMISSIONS ON PAGE 7 OF CIT(A) ORDER . HOWEVER RELIEF OF ONLY RS. 2,88,9867- WAS ALLOWED BY CIT(A) IN RESPECT OF TWO SETS MENTIO NED AT SL. 2& 3 OF VALUATION REPORT PLACED AT PAGE 29 OF PB. IT WAS EXPLAINED THAT PAGE 65 -69 OF PB SHOWS THAT ASSESSEE HAS MADE 356.38 GMS OF JEWELRY AND ALSO PURCHASE DIAMOND JEWELRY IN FEB & MARCH 20 07. OLD GOLD JEWELRY WEIGHING 317.99 GMS WAS GIVEN TO JEWELER. REF SUBMISSIONS AT PAGE 8 & 9 OF CIT(A) ORDER. PAGE 79 OF PB DEPICTS ASSESSEE PURCHASED 8 BA NGLES WEIGHING 87.25 GMS @ 5950 PER 10 GM. FOR RS. 243837-. OLD JEWELRY WEIGHING 55 GMS WAS GI VEN TO JEWELER. NET PURCHASE WAS 40.98 GMS. (REF PAGE 9 OF CIT(A) ORDER) THIS PURCHASE IS MADE IN YEAR 2005 BASED ON GOLD RATES. GOLD RATES FROM 1971 TO 2012 WERE PROVID ED TO C1T(A) (REF PAGE 10 OF CIT(A) ORDER) BASED ON NARRATION ON LOOSE SLIPS PLACED AT PAG E 56 TO 94 OF PAPER BOOK, IT WAS EXPLAINED THAT THESE SLIPS EXPLAINS THE PURCHASE OF 1293.89 GMS OF JEWELRY PLUS PURCHASE OF DIAMOND JEWELRY OF RS. 2,63,650/-. (REFER PAGE 11 TO 13 OF CIT(A) ORDER). THIS JEWELRY IS BESIDES 94 TOLA OF JEWELRY MENTI ONED ON PAGE 91 AND PAGE 61 OF PB. AFFIDAVIT OF AASHITA MITAL DAUGHTER (PAGE 52 OF PB) WAS FILED WHEREIN IT WAS STATED THAT 528 GMS. OF HER JEWELRY WAS SEIZED BY INCOME TAX DEPART MENT. (RELIEF OF ONLY 141.66 GMS - 2,88,986/- WAS GIVEN (IT. NO. 2 & 3 OF PAGE 29)). N O COGNIZANCE OF AFFIDAVIT AND SOME PURCHASE OF JEWELRY MADE AT TIME OF SALE OF AGRICUL TURAL LAND FOR RS. 42 LACS IN 1999 TAKEN ITA 539/CHD/2015 A.Y. 2011-12 PAGE 5 OF 25 BY CIT(A) REFER PAGE 14, & PAGE 44-51 OF PB. MAJORI TY OF THE JEWELRY WAS PURCHASED OUT OF SALE OF LAND IN 1999 FOR 1.64 CRORES (REF PAGE 34-5 1 OF PB) AND CIT (A) ORDER PAGE 16. TOTAL JEWELRY ON THE BASIS OF LOOSE SEIZED PAPE RS ONLY COMES TO (940GMS + 1293GMS - 317.99GMS -55GMS PLUS DIAMOND JEWELRY OF RS. 263500 /- PLUS JEWELRY MENTIONED ON PAGE 61 OF PB OF ASHITA NOT CONSIDERED IN 1293 GMS) 1860 GM S PLUS DIAMOND JEWELRY OF 2,63,500/- PLUS JEWELRY MENTIOND ON PAGE 61 BEING (4 GOLD COINS, 2 KADE, 2 DIAMOND SETS , ONE KUNDAN SET AND ONE GOLD SET) AFFIDAVIT OF SADHNA ARYA REAL SISTER OF REKHA MITTAL W/O NARESH MITTAL (PAGE 53 OF PB) WHEREIN IT WAS SUBMIITED BY HER THAT HER 609 GMS OF JEWELRY WAS SEIZED BY INCOME TAX DEPARTMENT AND STATING THE FACT THAT SHE IS PRESENTLY RESIDING IN AUSTRALIA AND SHE LEFT HER JEWELRY WITH HE SISTER.(REF PAGE 14 OF CIT(A) ORDER) NO COGNIZANCE OF AFFIDAVITS OF ASHITA MITTAL OR SADHNA ARYA WAS TAKEN BY AO AND ALSO CIT (A). REJECTED WITHOUT ASSIGNING ANY REASON. NO ENQU IRY / EXAMINATION WAS MADE BY AO IN BOTH CASES. REFERENCE TO BOARDS CIRCULAR NO. 1916 DA TED 11.05.1994 WAS ALSO MADE WHEREIN IT WAS STATED THAT JEWELRY / ORNAMENTS TO THE EXTENT OF 500 GMS I N THE MARRIED LADIES, 250 GMS IN THE CASE OF UNMARRIED LADY AND 100 GMS PER MALE MEMBERS OF FAMI LY SHOULD NOT BE SEIZED. CBDT ALSO IN YEAR 2016 THAT JEWELRY TO THE ABOVE EXTENT SHOUL D BE TREATED AS EXPLAINED. THIS POSITION IS ALSO AND APPROVED BY VARIOUS COURTS (RELIANCE PLACE D IN THE CASE OF KISHORBHAI V SAKARIA RAMESHCHANDRA R PATEL 89 ITD 203 AND MANILAL S DAVE 117 TAXMAN 23 (BOTH IT AT AHMEDABAD), CIT V. SATYA NARAIN PATNI 366 ITR 325 ( RAJASTHAN), CIT V. GHANSHYAM DAS JOHN 86 CCH 112 (ALLAHABAD) . ASSESSEE'S FAMILY CONSISTS OF THE FOLLOWING M EMBERS VIZ: SELF, REKHA MITTAL (WIFE), TWO UNMARRIED SONS AKASH MITTAL & SMARTH MITTAL AND MAR RIED DAUGHTER ASHITA MITTAL. BESIDES THE JEWELRY OF ABOVE FAMILY MEMBERS JEWELRY OF SADH NA ARYA (REAL SISTER OF REKHA MITTAL). SINCE DR. NARESH MITTAL WAS THE ONLY SON OF HIS PAR ENTS, THE JEWELRY OF HIS FATHER AND MOTHER WHO EXPIRE IN YEAR 200Q ALSO FORMED PART OF JEWELRY FOUND AT RESIDENCE & LOCKERS BEING INHERITED JEWELRY. ON THAT BASIS EXPLAINED JEWELRY SHALL BE 2400GMS ((SOOGMS (WIFE)+500GMS (MARRIED DAUGHTER)+500GMS(LATE MOTHER) +100GMS (SEL F) +200GMS (2 SONS)+100GMS (LATE FATHER)+500GMS (SISTER IN LAW)) MUCH MORE THAN THE JEWELRY TREATED AS UNEXPLAINED JEWELRY. IT WAS HELD IN FOLLOWING JUDGEMENTS THAT: ASHOK CHADDHA ITA 274/2O11 JUDGMENT DELIVERED ON: JULY 05,2011 HON'BLE DELHI HC (HELD WE ARE, THEREFORE, OF THE OPINION THAT THE FINDINGS OF THE TRIBUNAL ARE TOTALLY PERVERSE AND F AR FROM THE REALITIES OF LIFE..) STREE DHAN 'AS FAR AS ADDITION QUA JEWELLERY IS CONCERNED, DUR ING THE COURSE OF SEARCH, JEWELLERY WEIGHING 906.900 GRAMS OF THE VALUE AMOUNTING TO ' 6,93,582/-WAS FOUND. THE APPELLANT'S EXPLANATION WAS THAT HE WAS MARRIED ABOUT 25 YEARS BACK AND' THE JEWELLERY COMPRISED 'STREE DHAN' OF SMT. JYOTI CHADHA, HIS WIFE AND OTH ER SMALL ITEMS JEWELLERY SUBSEQUENTLY PURCHASED AND ACCUMULATED OVER THE YEARS. HOWEVER, THE ASSESSING OFFICER DID NOT ACCEPT THE ABOVE EXPLANATION ON THE GROUND THAT DOCUMENTAR Y EVIDENCE REGARDING FAMILY STATUS AND THEIR FINANCIAL POSITION WAS NOT FURNISHED BY T HE APPELLANT. THE ASSESSING OFFICER ACCEPTED 400 GRAMS OF JEWELLERY AS EXPLAINED AND TR EATED JEWELLERY AMOUNTING TO 506.900 GRAMS AS UNEXPLAINED AND MADE AN ADHOC ADDI TION OF ' 3,87,364 UNDER SECTION 69A OF THE ACT WORKING ON UNEXPLAINED JEWELLERY, BY APPLYING AVERAGE RATE OF THE TOTAL JEWELLERY FOUND. THE CIT (A) CONFIRMED THIS ADDITIO N STATING THAT THE AO HAD BEEN FAIR IN ACCEPTING THE PART OF JEWELLERY AS UNEXPLAINED. THE ITAT HAS ALSO ENDORSED THE AFORESAID VIEW AFTER CONSIDERING THE AFORESAID SUBMISSIONS WE ARE OF THE VIEW THAT ADDITION MADE IS TOTALLY ARBITRARY AND IS NOT FOUNDED ON ANY COGENT BASIS OR EVIDENCE. WE HAVE TO KEEP IN MIND THAT THE ASSESSEE WAS MARRIED FOR MORE THAN 25 -30 YEARS. THE JEWELLERY IN QUESTION IS NOT VERY SUBSTANTIAL. THE LEARNED COUNSEL FOR TH E APPELLANT/ASSESSEE IS CORRECT IN HER SUBMISSION THAT IT IS A NORMAL CUSTOM FOR WO MAN TO RECEIVE JEWELLERY IN THE FORM OF 'STREE DHAN' OR ON OTHER OCCASIONS SUCH AS BIRTH OF A CHILD ETC. COLLECTING JEWELLERY OF 906.900 GRAMS BY A WOMAN IN A MARRIED LIFE OF 25-30 YEARS IS NOT ABNORMAL. FURTHERMORE, THERE WAS NO VALID AND/OR PROPER YARDSTICK ADOPTED BY THE ASSESSING OFFICER TO TREAT ONLY ITA 539/CHD/2015 A.Y. 2011-12 PAGE 6 OF 25 400 GRAMS AS 'REASONABLE ALLOWANCE' AND TREAT THE O THER AS 'UNEXPLAINED'. MATTER WOULD HAVE BEEN DIFFERENT IF THE QUANTUM AND VALUE OF THE JEWELLERY FOUND WAS SUBSTANTIAL.' WHEN A JEWELLERY FOUND FROM THE PREMISES IS WITHIN PERMISSIBLE LIMITS SET OUT IN INSTRUCTION NO. 1916 DT. 11.05.1994, THE SAID INSTR UCTION IS TO BE READ AS LAYING DOWN THE LIMITS OF ACCEPTABLE STANDARDS OF DISCLOSED INV ESTMENT IN JEWELLERY. NO ADDITION SHOULD BE MADE IN RESPECT OF JEWELLERY WHICH IS WIT HIN PERMISSIBLE LIMITS OF ABOVE REFERRED INSTRUCTION. FOR THIS PROPOSITION, WE RELY UPON RATIO OF FOLLOWING JUDGEMENTS: O RATANLAL VYAPARILAL JAIN 235 CTR (GUJ) 568 O CIT VS. SATYA NARAIN PATNI (RAJ HC) 224 TAXMAN 312 ASSESSING OFFICER AS WELL AS CIT(A) HAS NOT CONSIDE RED THE MATERIAL BEFORE THEM AS PER WHICH ENTIRE JEWELRY WAS EXPLAINABLE AND NO PART OF THE J EWELRY WAS UNEXPLAINED AND NO ADDITION WAS CALLED FAR. IT WAS HELD IN : CIT VS KANHAIYA LAI ITA NO. 445 OF 2008 (ALL. HC) 'DURING THE SEARCH CERTAIN MATERIALS AND VALUABLE A RTICLES WERE FOUND, WHICH ACCORDING TO THE REVENUE WAS NOT DULY ACCOUNTED FOR . DURING THE COURSE OF SEARCH, STATEMENT OF THE ASSESSES WAS RECORDED WHER EIN HE ADMITTED AN EXCESS INVESTMENT OF RS.5,00,000/- AND ALSO OWING OF 20.15 0 KG. SLIVER ORNAMENTS WHICH HE SURRENDERED FOR TAXATION. THERE WAS A DIFFERENCE OF OPINION BETWEEN THE JUDIC IAL MEMBER AND THE ACCOUNTANT MEMBER ON THE QUESTION WHETHER FOR THE S ILVER BULLION WEIGHING 240 KGS. SEIZED FROM THE RESIDENCE OF THE ASSESSEE DURI NG THE COURSE OF SEARCH U/S 132(1) OF THE ACT THE EXPLANATION GIVEN BY THE ASSE SSEE SHOULD BE ACCEPTED OR NOT. THE MATTER WAS REFERRED TO THE THIRD MEMBER, WHO HAS HE LD AS FOLLOWS:- ONE THING IS CLEAR THAT THE SILVER BULLION WAS SEIZ ED FROM THE HOUSE BELONGING TO TWO SONS WHO CLAIMED THE OWNERSHIP OF THE SILVER BULLIO N. THOUGH, THERE IS NO DIRECT EVIDENCE TO PROVE THE FACTUM OF GIFT OF THE SILVER BULLION OF 240 KGS., BY THE ASSESSEE'S MOTHER TO HER SON AND ADMITTEDLY NO WILL WAS EXECUT ED BY HER, BUT THAT COULD, HOWEVER, BE THE SITUATION BECAUSE OF COMMON FEATURE S PREVAILING IN THE INDIAN FAMILIES. LOOKING TO THE CIRCUMSTANTIAL EVIDENCE AN D MATERIAL ON RECORD IT, THE FACT THAT THE ASSESSEE'S FATHER WAS CARRYING ON SILVER BUSINESS AT KHERLY, D ISTRICT ALWAR, RAJASTHAN STANDS; THE FACT THAT BEFORE HIS DEATH 24 0KGS. OF SILVER BULLION WERE HANDED OVER TO HIS WIFE SMT. NARVADA DEVI AS AVERRE D IN THE AFFIDAVIT OF SH GIRRAJ PRASAD AGRAWAL, THE CLAIM OF THE ASSESSEE DE SERVES TO BE ACCEPTED. THE SUSPICION ENTERTAINED BY THE A.O. THAT SMT. NARVADA DEVI HANDED OVER THE SAID BULLION RECEIVED FROM HER HUSBAND TO HER ONLY ONE S ON IE., ASSESSEE AND NOT TO THE OTHER WITH THE EXPRESSED DESIRE THAT THE SAME MAY B E DISTRIBUTED EQUALLY AMONGST HIS SONS SHRI ANIL KUMAR AND SHRI MANOJ KUMAR ALSO STANDS EXPLAINED BY THE AFFIDAVIT STATING THAT SHE RESIDED WITH THE ASSESSE E AND HIS FAMILY WHO HAD TAKEN CARE OF IN HER OLD AGE. THE CONFIRMATIONS OF THE SO NS OF THE ASSESSEE ALSO AFFIRMED THE OWNERSHIP OF THE SAID SILVER BULLION RECEIVED T HROUGH THE GRANDMOTHER. NON- DISCLOSURE OF THE SILVER BULLION BY THE TWO SONS IN THEIR WEALTH-TAX RETURNS WERE STATED TO BE NOT LIABLE TO TAX UNDER THE WEALTH-TAX ACT. ON T HESE FACTS AND CIRCUMSTANCES, THE ADDITION ON ACCOUNT OF THE SILVE R BULLION IN THE HANDS OF THE ASSESSEE TO THE EXTENT OF 240 KGS. OF SILVER MAY NO T BE JUSTIFIED AND THE SAME HAS TO BE CONSIDERED IN THE HANDS OF HIS SONS SHRI ANIL KU MAR AND SHRI MANOJ KUMAR WHO ARE ASSESSEE'S IN THEIR OWN RIGHT.' EVEN OTHERWISE IN INDIAN CULTURE IT IS BUT NATURAL THAT GRANDMOTHER, WHO IS RESIDING WITH ONE OF HIS SON, WHO IS TAKING CARE OF HER OLD AGE AND OTHER PROBLEMS GENERALLY GIVES ALL THE PROPERTY TO THE SON OR THE GRANDSON WITH WHOM SHE IS LIVING AND IN THIS CASE TO HER GRANDSONS. IN THIS VIEW OF THE MATTER, WE ARE OF THE CONSIDERE D OPINION THAT THE TRIBUNAL HAD NOT COMMITTED ANY ILLEGALITY IN HOLDING THE EXPLANATION GIVEN BY THE ASSESSEE REGARDING 240KGS SILVER BULLION AS PLAUSIBLE AND HAS RIGHTLY ACCEPTED IT.' IN VIEW OF THE ABOVE POSITION OFFSETS AND LAW NO ADDITION WAS REQUIRED T O BE MADE BY ASSESSING OFFICER AND LATER ON SUSTAINED BY CIT(A). IT IS THEREFORE REQUESTED T HAT ADDITION SUSTAINED BY THE CIT(A) MAY KINDLY BE DELETED. GROUND NO. 3 & 4: IN THIS GROUND ADDITION OF RS. 10 LACS FOR WHICH AD DITION HAS BEEN UNDER SECTION 68 AND SUSTAINED BY CIT(A) HAS BEEN CHALLEN GED. ITA 539/CHD/2015 A.Y. 2011-12 PAGE 7 OF 25 WHEN THE SEARCH STARTED, QUESTIONS WERE RAISED ABO UT CASH AVAILABLE AT RESIDENCE. IT WAS EXPLAINED THAT HE HAS ABOUT 5 LACS CASH AND ANOTHER RS. 10 LACS WAS RECEIVED FROM AMIT CHAUDHARY AS ADVANCE FOR SALE OF ONE KANAL PLOT IN AMRAVATI. (REF. 209 OF PB Q6). EARLIER ASSESSEE DISCLOSED THAT HE TWO PLOT 73 & 74 IN AMRA VATI (REF PAGE 207 OF PB). DURING STATEMENT AGAIN IT WAS STATED THAT ASSESSEE HAD NOT RECEIVED ANY ADVANCE OTHER THAN RS. 10 LACS FOR WHICH AGREEMENT IS YET TO BE SIGNED, (PB P AGE 212) AND AGAIN RETREATED ON PB PAGE 214 WHERE ADDRESS AND PHONE NO. OF THE AMIT CH AUDHARY WAS ALSO GIVEN. WHEN CONFRONTING SEIZED DOCUMENTS97-126 OF ANNEXURE A-2 IT WAS IT WAS INFORMED THAT THESE TRANSACTION REGARDING PURCHASE OF PLOT AT AMRAVATI IS REFLECTED IN LAI CHAND NARESH CHAND HUF (ON PB PAGE 220) DURING ASSESSMENT AFFIDAVIT OF AMIT CHAUDHARY WAS F ILED WHO CONFIRMED THAT HE HAS PAID RS. 10 LACS AS ADVANCE FOR PURCHASE OF PLOT TO NARESH MITT AL AND EARLIER RS. 5,00,000/- WAS GIVEN BY CHEQUE OF AXIS BANK MANIMAJRA AND ALSO PAYMENT I S RECEIVED BACK THROUGH CH NO. 132462 OF HDFC BANK.(REF PAGE 104 OF PB). ASSESSEE AS PER DETAILS OF CIH AS ON DATE OF SEARCH WAS AROUND RS. 60 LACS (REF PAGE 19 OF CIT(A) (PB PAGE 99 TO 108). ENTRIES OF CASH RECEIVED WERE ACCOUNTED FOR IN THE ACCOUNTS OF LAI CHAND NARESH CHAND HUF, IN WHOSE CASE NO ADDITION WAS MADE. THERE WAS NO EN TRY IN THE BOOKS OF CASH RECEIPT IN THE HANDS OF NARESH MITTAL (ALL DETAILS WERE BEFORE AO) ASSESSING OFFICER HAS DISCARDED THE SWORN AFFIDAVIT AND VERACITY OF THE CONTENTS OF AFFIDAVIT WITHOUT MAKING ANY INDEPENDENT ENQUIRY OR BY SUMMONING AMIT CHAUDHARY, ASSESSEE WAS ALSO NOT ASKED TO PRODUCE THE PERSON C ONCERNED. (REF PAGE 20 -21 OF CIT(A) ORDER) NO ADDITION U/S 68 CAN BE MADE WHEN THERE IS NO CRE DIT ENTRY IN THE BOOKS OF ACCOUNT OF DR. NARESH MITTAL U/S 68. (REFER TO PAGE 20-21 OF CIT(A ). THE LEARNED CIT(A) DID NOT ACCEPT ASSESSEE'S PLEA O N THE GROUND THAT CASH OF RS. 10 LACS BELONGED TO HUF AND CANCELLATION OF DEAL DUE NO NON AVAILABILITY OF ORIGINAL PAPERS IS RATHER OBSCURE. ENTIRE INFORMATION WAS AVAILABLE WI TH AO AND PLACED BEFORE CIT(A) AND THE AUTHORITIES WERE REQUIRED TO APPRAISE THE INFORMATI ON DILIGENTLY AND WITH OPEN & JUDICIOUS MIND. KEEPING IN VIEW THE ABOVE FACTUAL POSITION, NO ADDI TION OF RS. 10 LACS WAS REQUIRED TO MADE AT THE FIRST INSTANCE AND THEN CONFIRMED BY CIT(A). IT IS THUS REQUESTED THAT THIS GROUND OF APPEAL MAY KINDLY BE ALLOWED. GROUND NO. 5: THIS GROUND ADDITION OF 26,89,250/- CONFIRMED BY CI T(A) HAS BEEN CHALLENGED. THE ADDITION IS MADE ON THE BASIS OF SEIZED DOCUMENT PA GE NO. 94,150 (BOTH FRONT AND BACK SIDE) & PAGE 151 (PB PAGE 90-93 AND ALSO ON PAGE 7 TO 10 OF ASSESSMENT ORDER) IT WAS EXPLAINED TO AO THAT THESE PAPERS RELATE TO A DEAL OF LAND WITH RACHPAL SINGH20.75 ACRES @ 68500 PER ACRE AND RELATES TO PE RIOD 1993. COPY OF THE INITIAL AGREEMENT WITH BIANA OF 6,75,000/- ENTERED ON 22.01.1993, POA ISSUED IN FAVOR OF NARESH MITTAL BY RACHPAL SINGH AS MD OF GREEN GOLD EUCALYPTUS LTD, T RANSFER OF 22 KANAL & 4 MARIA, & 143 KANAL 19 MARIA (ALL 166 KANAL 3 MALA = 20.75 AC RE), DOCUMENTS REGARDING ENQUIRY CONDUCTED BY ECONOMIC OFFENCE WING OF CHANDIGARH, C OPY OF CIVIL SUIT FILED BY RAJINDER PAL SINGH VS GREEN EUCULYPTUS LTD, COMPROMISE BETWEEN T HEM AND COPY OF THE PETITION FILED FILED IN CONTEMPT OF COURT ACT IN 1994 BY RAJINDER PAL SINGH ETC. 9REF PAGES 145 - 164 OF PA PER BOOK) TO PROVE THAT THESE SEIZED DOCUMENTS PERTAINS TO PERIOD 1993. DETAILED SUBMISSIONS EXPLAINING JOTTINGS OF THESE F OUR PAGES INCORPORATED ON PAGE 25 TO 28. IT WAS ALSO CONTENDED THAT THERE IS NO PRESUMPTION THA T SUCH BOOKS OF ACCOUNT OR OTHER DOCUMENTS, MONEY, BULLION OR JEWELRY OR OTHER VALUA BLES ARTICLES RELATES TO FINANCIAL YEAR IN WHICH SEARCH WAS MADE UNDER SECTION 132 / 132A. SIMILARLY SECTION 69C DO NOT TAKE INTO ITS FOLED THE PRESUMPTION OF 'FINANCIAL YEAR IN WHICH S EARCH WAS MADE' ITA 539/CHD/2015 A.Y. 2011-12 PAGE 8 OF 25 ON NONE OF THE DOCUMENTS THERE IS ANY RECORDING THA T SUCH EXPENDITURE RELATES TO FINANCIAL YEAR 2010-11 RELEVANT TO AY 2011-12 OR AN Y OF THE YEAR UNDER SECTION 153 FOR WHICH NOTICE WAS ISSUED BY AO. THE LEARNED CIT(A) ADMITTED THAT NO DATES ARE MENTI ONED ON THESE DOCUMENT CIT(A) FINDING IN PARA 7.1 PAGE 31 OF CIT(A) ORDER) AND SHE OBSERV ED THAT ASSESSEE COULD HAVE PRODUCED HIS BANK ACCOUNTS PERTAINING TO YEAR 1993. THE ADDITION IS CONFIRMED ON THE BASIS OF SURMISES & CONJECTURE ONLY. RELIANCE IS PLACED IN THE CASE OF DCIT VS VIKAS LIM E INDUSTRIES YAMUNANAGER IN ITA NO. 550 / CHD / 2001 (ITAT CHD 20.10.2015), CIT VS VIVE K AGGARWAL 121 DTR 241 (DEL HC), CIT VS GIRISH CHAUDHARY 296 ITR 629 (DELHI HC), AND CIT VS JAI PAL AGGARWAL (DELHI HC 212 TAXMAN 001 (DEL HC) FOR THE PROPOSITION THAT NO ADDITION CAN BE MADE ON THE BASIS OF UNDATED AND UNSIGNED DOCUMENTS SEIZED DURING SEARCH . IN VIEW OF THE ABOVE POSITION , ADDITION MADE A T RS.26,89,250/- BY AO AND CONFIRMED BY CIT(A) REQUIRES TO BE DELETE. GROUND NO. 6: THIS GROUND RELATES TO ADDITION MADE OF RS.2,39,350/- ON THE BASED ON SEIZED PAPERS 37 AND 41 (COPIES PLACED AT PAGE 165 AND 166 OF PB) PERUSAL OF BOTH THESE DOCUMENT SHALL REVEAL TH AT THESE ARE UNDATED (PB PAGE 165 & 166) ASSESSING OFFICER TREATED THAT DEALS RELATING TO TH ESE LAND WERE MADE THROUGH ASSESSEE IN THE CURRENT FINANCIAL YEAR AND ASSESSED 2% OF THE OF TO TAL COST OF LAND OF RS. 1,19,67,500/- AS COMMISSION OF ASSESSEE. IT WAS EXPLAINED BEFORE CIT (A) THAT THESE DOCUMENT S ARE VERY OLD AND ASSESSEE HAS NO RELATION WITH THESE. IT WAS ALSO CONTENDED DEAL OF 48 KILLA 19 BISWA OF LAND @ 1,90,000/- PER ACRE (PB PAGE 165) IN VILLAGE JAROT SUB TEHSIL DERABASSI)PROBABLY RELATED TO FY 2000. COLLECTOR RATE LAND IN VILLAGE JAROT WAS RS. 11.50 LACS TO 18 LACS AND ON CONSIDERING THE INCREASE IN RATES BY 15 % EACH Y EAR SUCH RATE OF 1,90,000/- WAS PROBABLY IN YEAR 2000 SIMILARLAY LAND RATE MENTIONED ON PAGE 166 ID 35000 /- PER ACRE IN VILLAGE KHANPUR BRAHMANA TEHSIL NARAINGARH DIST. AMBALA (PB PAGE 16 6) DURING FY 2010-11 THE RATE OF AGRICULTURE LAND IN VILLAGE KHANPUR BRAHAMAN WAS 25 0000 PER ACRE TO 500000- PER ACRE.EVEN IF IT IS PRESUMED THAT THAT THERE WAS AN INCREMENTAL GROWTH OF 15% PER ANNUM, EVEN THEN LAND RATES IN FY 200 WOULD BE AROUND RS. 1,07, 000/- PER ACRE AND LAND RATE OF RS. 38500 SHALL PROBABLY BE IN EARLY 1990. ASSESSING OFFICER HAS MADE NO ENQUIRIES FROM THE PE RSONS NAMED IN THESE PAPERS ALTHOUGH NAME OF THE VILLAGES WAS CLEARLY MENTIONED ON SUCH PAPERS. ASSESSEE'S DETAILED SUBMISSIONS BEFORE CIT(A) ARE I NCORPORATED AT PAGE 32- 35 OF CIT(A) ORDER. HAD ASSESSING OFFICER MADE ENQUIRY FROM THE RESPECT IVE REVENUE AUTHORITIES, HE WOULD HAVE CERTAINLY FOUND THE GOING SALE RATE OF AGRICUL TURE LAND IN THESE TWO VILLAGES. HOWEVER AO DID NOT APPLY HIS MIND AND MADE ADDITION OF CONJECTURE AND SURMISES WITHOUT BRINGING ON RECORD THAT THESE DOCUMENTS PER TAINS TO CURRENT FINANCIAL YEAR. THE EARNED CIT(A) CONFIRMED THE ADDITION MADE ON TH E GROUND THAT IT DOES NOT HELP ASSESSEE THAT PAYMENTS ARE VERY OLD OR THAT AO HAS NOT MADE ENQUIRY. HER ONLY CONSIDERATION WAS THAT THERE WAS ADVANCE PAID AS PE R RECEIPTS AND THESE SPELLS OUT CONDITIONS OF SALE AND ASSESSEE'S CASE IS NOT THAT SALE HAVE NOT MATERIALIZED. WHEN IT WAS STATED THAT THESE RECEIPTS ARE VERY OLD AND DO NOT PERTAIN TO ASSESSEE AND FURTHER BRINGING ON RECORD THAT THESE PERTAINS TO P ERIOD PRIOR TO 2000, THERE WAS NO REASON FOR CIT(A) TO TREAT THESE AS IF THESE PERTAI NS TO CURRENT YEAR, AND IN THE ABSENCE OF ANY ENQUIRY / INVESTIGATION FROM THE SIGNATORIES OF THE RECEIPTS, THE AO HAS NO REASON TO MAKE THE ADDITION OF AND CIT(A) TO CONFIRM THE SAME . FOR THE REASONS STATED ABOVE ADDITION CONFIRMED BY CIT(A) AND LIABLE TO BE DELET ED. RELIANCE IS PLACED ON CASE LAWS MENTIONED IN SYNOPSIS IN GROUND NO. 5 ABOVE. ITA 539/CHD/2015 A.Y. 2011-12 PAGE 9 OF 25 GROUND NO. 7 & 8 : ADDITION OF 23,47,850/- AND OF RS. 75000/- OUT OF A DDITION OF RS. 26,09,700/- IS BEING CONTESTED IN THESE GROUNDS OF APPEAL. ADDITIONS OF RS. 23,47,850/- MADE BY AO AND CONFIRM ED BY CIT(A) IS WITH REFERENCE TO SEIZED DOCUMENT NO. 23 OF ANNEXURE A-2 REFERRED TO AT PAGE 16 OF THE ASSESSMENT ORDER AND SEIZED DOCUMENT BEING PAGE 29 OF ANNEXURE A-2 OF SE IZED RECORD MENTIONED AT PAGE 17 OF ASSESSMENT ORDER. IN RESPECT OF THE PAGE 23, IT WAS CONTENDED THAT THIS DOCUMENT RELATES TO PURCHASE OF SOME LAND MADE BY ASIA GREEN LIMITED IN YEAR 199 5 AND DETAILED EXPLANATION WAS MADE WITH REFERENCE TO NAMES OF PERSONS MENTION ED ON THIS PAPER, COPIES OF THE REGISTRIES OF LAND AND OTHER AGREEMENTS OF SALE OF LAND. DETAILED EXPLANATION IS THERE WITH REGARD TO PAGE 23 OF ANNEXURE A-2 AT PAGE 37 TO 39 OF CIT(A) ORDER AND COPIES OF SUCH DOCUMENTS RELATING TO PURCHASE OF LAND FROM AJAIB SINGH MUKHMAILPURA AND OTHER PERSONS ARE ENCLOSED AT PAGE 177 TO 205 OF PB. THIS SEIZED PAPER DO NOT CONTAIN AND DATE O R SIGNATURE OF ANY PERSON. THE PAPER RELATED TO THE PERIOD WHEN DR. NARESH M ITTAL WAS AN EXECUTIVE DIRECTOR OF THE ASIA GREEN LIMITED AND WAS ASSIGNED THE JOB OF PURCHASE OF LAND FOR THE SAID COMPANY AND IS EVIDENCED BY WAY OF SIGNATURE O N PURCHASE DEED PLACED AT PAGE 177 TO 183, 184-191 WHERE HE HAS PUT HIS SIGNA TURE AS WITNESS AND SOME OTHER PAPERS WHERE HE HAD RECEIVED POSSESSION OF LA ND ON BEHALF OF ASIA GREEN LIMITED (PAGE 192 OF PB) WAS RECEIVED. HOWEVER THE EXPLANATION WAS NOT ACCEPTED BY AO AS WELL CIT(A) WITH THE OBSERVATION THAT EXPENSES RECORDED ON THIS PAPER DID NOT RECONC ILE, WHEREAS THE EXPLANATION GIVEN BY ASSESSEE ALSO REFERRED TO VARIOUS NAME AND FIGURE A GAINST SUCH NAME WHILE SUBMITTING ITS EXPLANATION. SINCE THIS DOCUMENT IS UNDATED AND UNSIGNED , NO PRESUMPTION CAN BE DRAWN THAT THE SAME PERTAINS TO CURRENT YEAR. NO ADDITION CAN BE MADE O N THE BASIS OF UNDATED AND UNSIGNED PAPERS. RELIANCE IN THIS REGARD IS MADE ON THE SAME CASE LAWS AS MENTIONED IN GROUND NO. 5 & 6. WITH REGARD TO ADDITION MADE OF RS. 75000/- I T WAS CONTENDED THAT THIS DOCUMENT PERTAINED TO MARRIAGE OF ASSESSEE SON. IT WAS CONTENDED THAT ASSESSEE HAD SPENT AROUND RS. 5.5 LACS IN HIS MARRIAGE EXCLUDING PURCHASE OF JEWELRY OF RS . 22 LACS. DETAILED EXPLANATION IS THEIR ON PAGE 36 OF CIT (A) ORDER. IT WAS CONTENDED THAT HOW EVER THE SUBMISSION OF THE ASSESSEE WERE NOT ACCEPTED ON THE GROUND THAT CASH FLOW WAS NOT S UBMITTED. CASH WITHDRAWALS OF RS. 2 LACS WERE MADE AS P ER ENTRIES RECORDED IN CASH BACK (REF PAGE 98 OF PB) ON 27.08.2010 AND 16.09.2010. IN RESPECT OF PURCHASE OF CLOTHING'S, PRINTING OF INVITATION CARDS AND PURCHASE OF SWEETS ETC. PAYMEN T WERE MADE THROUGH CHEQUE AND WERE DULY REFLECTED IN HIS BANK ACCOUNT VIDE CH. NO. 161 667/- RS. 119000/-, CH. NO. 161668 FOR RS. 41673/- AND CH. NO. 161670 FOR RS. 74500/-, FRO M PUNJAB NATIONAL BANK SECTOR 5 PANCHKULA. PAYMENT OF FOOD BILL FOR CATERING TO PAR CO WAS MADE IN CASH FROM THE BOOKS OF HUF (REF PB PAGE 95). ALL THESE DETAILS WERE BEFORE AO KEEPING IN VIEW THE ABOVE POSITION OF EXPENDITURE O N MARRIAGE OF SON, NO ADDITION WAS REQUIRED TO BE MADE. 6. GROUND NO. 1 WAS STATED TO BE GENERAL IN NATURE. PR OCEEDING TO GROUND NO. 2 IN THE PRESENT PROCEEDINGS, IT IS SEEN THAT IT IS A MATTER OF RECORD THAT THE SEARCH WAS CONDUCTED ON THE ASSESSE E IN THE LATE EVENING OF 17/11/2010 WHICH CONTINUED TILL THE EVENING OF THE 18/11/2 010. IT IS AN ADMITTED FACT THAT THE MARRIAGE OF THE ASSESSEES SON S H. AKASH MITTAL WAS FIXED TO TAKE PLACE ON 30.11.2010 I.E. WITHIN A FEW DAYS. IT IS SEEN THAT BEFORE THE AO AS WELL AS THE CIT(A) THE ASSESSEE ADMITTE DLY CANVASSED CONSISTENTLY THAT PART OF THE JEWELLERY FOUND FROM THE LOC KERS AND THE RESIDENTIAL PREMISES WAS OF THE ASSESSEES MARRIED DAUGHT ER MS. ASHITA ITA 539/CHD/2015 A.Y. 2011-12 PAGE 10 OF 25 MITTAL AND SOME OF THE JEWELLERY BELONGED TO THE ASSESSEE S WIFES SISTER MRS. SADHNA ARYA LIVING ABROAD AND THE REMAINING JEWELLERY WAS EXPLAINABLE IN THE HANDS OF THE ASSESSEE AND HIS FAMILY MEMBERS. THESE ASSERTIONS HAVE BEEN SUPPORTED BY LOOSE SLIPS MENTIONING THE JEWELLERY WHIC H WAS ALSO FOUND FROM THE LOCKERS BY THE SEARCH TEAM AT THE TIME O F THE SEARCH. AS FAR AS THE QUANTUM OF JEWELLERY FOUND FROM THE RESPECTIVE LOC KERS AND RESIDENCE OF THE ASSESSEE, WE NOTE, THERE IS NO DISPUTE. IT IS A MATTER OF RECORD THAT TO THE EXTENT THE ADDITIONS WERE MADE BY THE AO, THE CIT(A) CONSIDERING THE VERY SAME ARGUMENTS GRANTED PART RELIEF IN AN AD HOC MANNER. THE ASSESSEE CONTINUES TO REMAIN AGGRIEVED ON T HE GROUND THAT HAVING ACCEPTED THE ARGUMENT, THE CIT(A) ON FACTS SHOULD HAVE DELETED THE ADDITION AND THERE WAS NO OCCASION FOR THE CIT(A) THEREA FTER TO ARRIVE AT AN ARBITRARY FIGURE OF ESTIMATE TO GRANT RELIEF PARTIALLY. THE LD . AR APART FROM REPEATING THE SUBMISSIONS MADE BEFORE THE CIT-A WHICH R EMAINED IGNORED INVITED ATTENTION TO THE AFFIDAVIT OF ASHITA MITTAL, THE DAUG HTER OF THE ASSESSEE. THE AFFIDAVIT OF MRS. SADHANA ARYA WHICH HAD BEE N RELIED UPON AND CONSIDERED BY THE CIT(A) WAS ALSO RELIED UPON. THESE AFFIDAVITS WERE AVAILABLE BEFORE THE CIT(A) AT PAPER BOOK PAGES 26 AND 28 AND ARE PLACED BEFORE US IN THE PRESENT PROCEEDINGS AT PAPER BOOK PAG ES 52 AND 53. IT HAS BEEN SUBMITTED THAT THEY REMAIN IGNORED IN AS MUCH AS N O CONSIDERATION WAS GIVEN TO THESE EVIDENCES WHICH REMAIN UNREBUTTED BY THE REVENUE. IT HAS BEEN CANVASSED THAT TO THE EXTENT THE JEWELLERY W AS WORN AS PER PHOTOGRAPHS BY THE ASSESSEES DAUGHTER ASHITA MITTAL, THE CIT-A GRANTED PART RELIEF IN AN AD HOC MANNER IGNORING THE CONTENTS OF T HE AFFIDAVIT FILED. IT WAS ALSO HIS SUBMISSION THAT IN THE LOCKERS FOUND, IT IS NOT DISPUTED BY THE REVENUE THAT THERE WERE SLIPS WHEREIN THE JEWELLERY DES CRIPTION STORED THEREIN WAS GIVEN. COPIES OF THE SLIPS HAVE BEEN MADE AVAILA BLE AT PAGES 6 TO 94 OF THE PAPER BOOK AND IT IS AN ADMITTED FACT THAT THESE WERE FOUND BY THE INVESTIGATION WING AT THE TIME OF THE SEARCH AND TH US WERE AVAILABLE BEFORE THE AO AS WELL AS THE CIT-A. IT WAS ALSO HIS SUB MISSION THAT IT IS A MATTER OF RECORD THAT THE LOCKERS IN BANK OF BARODA WAS LAST OPERATED ON 15/10/2003. ACCORDINGLY, IT WAS HIS SUBMISSION THAT THIS UN DISPUTED FACT WOULD PROVE THAT THE JEWELLERY FOUND MENTIONED IN THE LOOS E SLIPS THEREIN COULD BE SAID TO BE IN EXISTENCE ON THE SAID DATE I.E. 15/ 10/2003. THE PAPER BOOK PAGE NO. 61 OF THE PAPER BOOK WHICH IS A LOO SE SLIP FOUND FROM THE LOCKERS HAS BEEN NOTICED AT THE TIME OF THE SEARCH ITSELF WHEREIN THE DIAMOND JEWELLERY OF ASHITA MITTAL HAS BEEN MENTIONED. IN TH E SAID ITA 539/CHD/2015 A.Y. 2011-12 PAGE 11 OF 25 BACKGROUND THE PART RELIEF GRANTED BY THE CIT-(A) IT WAS SUBMITTED, WAS ARBITRARY AND CONTRARY TO THE FACTS ON RECORD. PAGES 6 5 TO 69 OF THE PAPER BOOK WHICH IS DATED 03/02/2007 WOULD SHOW THAT THE ASS ESSEE HAS MADE A JEWELLERY OF 356.38 GM AND ALSO PURCHASED DIAMOND JEWELLERY IN FEBRUARY AND MARCH 2007. IT WAS EXPLAINED THAT OLD JEWELLERY WEIGHI NG 317.99 GM. WAS GIVEN TO THE JEWELLER. THESE SUBMISSIONS ARE NOT FRESH SUBMISSIONS AND HAVE BEEN ADVANCED BEFORE THE AO AS WELL AS THE CIT(A). SINCE THE CORRECTNESS OF THE CIT(A)S ORDER IS UNDER CHALLENGE, ATTE NTION WAS INVITED TO PAGES 8 AND 9 OF THE CIT(A)S ORDER ALSO. THE GOLD RATES FROM 1971 TO 2012, IT WAS SUBMITTED, HAD BEEN PROVIDED TO THE CIT-A AND TH ESE HAVE BEEN REFERRED TO BY HIM AT PAGE 10 OF HIS ORDER. BASED ON THE NARRATIONS IN THE LOOSE SLIPS FOUND BY THE SEARCH TEAM PLACED AT PAGES 56 TO 94, IT HAS BEEN EXPLAINED THAT THESE SLIPS EXPLAIN THE PURCHASES OF 1293.89 GM. OF JEWELLERY PLUS PURCHASE OF DIAMOND JEWELLERY OF RS. 2,60,650. APART FROM THIS, IT WAS SUBMITTED THAT THERE IS 940 GMS. OF JEWELLERY MENTIONED A T PAGE 91 AND PAGE 61 OF THE PAPER BOOK. 6.1. IN THE SAID BACKGROUND IGNORING THE AFFIDAVITS OF MS. AS HITA MITTAL DAUGHTER OF THE ASSESSEE AND MRS. SADHANA ARYA REAL S ISTER OF THE ASSESSEE'S WIFE, IT IS CONTRARY TO FACTS. THE ASSESSEE'S WIFES SISTER HAS STATED IN AN AFFIDAVIT THAT SHE OWNED 609 GM. OF JEWELLERY WHICH SHE HAD KEPT WITH HER SISTER SINCE SHE WAS RESIDING IN AUSTRALIA. IN THE BACKGROUND OF THESE FACTS, RELIANCE HAD BEEN PLACED UPON THE CIRCULAR NO. 1916 DATED 11.05.1994 OF THE BOARD WHEREIN IT HAD BEEN STATED THAT THE JEWELLERY/ORNAMENTS TO THE EXTENT OF 500 GM. IN THE CA SE OF MARRIED LADIES, 250 GM. IN THE CASE OF UNMARRIED LADY AND 100 GRAMS PER MALE MEMBER OF FAMILY CAN BE CONSIDERED TO BE REASONABLE. IT WAS STATE D THAT NO DOUBT THE SAID CIRCULAR WAS IN REGARD TO WHAT CAN BE SEIZED, HOWEVER, THE SA ID CIRCULAR HAS BEEN INTERPRETED BY THE ITAT AND THE COURTS WHICH HAVE CONSISTENTLY HELD THAT CONSIDERING THE STANDARD OF THE ASSESSEES FAM ILY JEWELLERY TO THAT EXTENT CAN BE SAID TO BE EASILY EXPLAINED. IN THIS BACKGR OUND, RELYING UPON THE JUDGEMENT OF HON'BLE DELHI HIGH COURT IN THE CASE OF A SHOK CHADDHA ITA 274/2011 JUDGMENT DELIVERED ON: JULY 05,2011 WHEREIN IT HAD BEEN HELD THAT THE FINDINGS OF THE TRIBUNAL ARE TOTALLY PERVERSE AND FAR FROM THE REALITIES OF LIFE WHERE ADDITION WAS M ADE IGNORING THE FACTUAL REALITIES OF INDIAN FAMILIES CONSIDERING THAT JEWEL LERY IS STREE DHAN OF A WIFE EVEN HAVING NO KNOWN SOURCES OF INCOME. THE RELEVANT EXTRACT FROM THE SAID DECISION HEAVILY RELIED UPON IS REPRODUCED HEREUNDER : ITA 539/CHD/2015 A.Y. 2011-12 PAGE 12 OF 25 'AS FAR AS ADDITION QUA JEWELLERY IS CONCERNED, DUR ING THE COURSE OF SEARCH, JEWELLERY WEIGHING 906.900 GRAMS OF THE VALUE AMOUNTING TO ' 6,93,582/-WAS FOUND. THE APPELLANT'S EXPLANATION WAS THAT HE WAS MARRIED ABOUT 25 YEARS BACK AND' THE JEWELLERY COMPRISED 'STREE DHAN' OF SMT. JYOTI CHADHA, HIS WIFE AND OTH ER SMALL ITEMS JEWELLERY SUBSEQUENTLY PURCHASED AND ACCUMULATED OVER THE YEARS. HOWEVER, THE ASSESSING OFFICER DID NOT ACCEPT THE ABOVE EXPLANATION ON THE GROUND THAT DOCUMENTAR Y EVIDENCE REGARDING FAMILY STATUS AND THEIR FINANCIAL POSITION WAS NOT FURNISHED BY T HE APPELLANT. THE ASSESSING OFFICER ACCEPTED 400 GRAMS OF JEWELLERY AS EXPLAINED AND TR EATED JEWELLERY AMOUNTING TO 506.900 GRAMS AS UNEXPLAINED AND MADE AN ADHOC ADDI TION OF ' 3,87,364 UNDER SECTION 69A OF THE ACT WORKING ON UNEXPLAINED JEWELLERY, BY APPLYING AVERAGE RATE OF THE TOTAL JEWELLERY FOUND. THE CIT (A) CONFIRMED THIS ADDITIO N STATING THAT THE AO HAD BEEN FAIR IN ACCEPTING THE PART OF JEWELLERY AS UNEXPLAINED. THE ITAT HAS ALSO ENDORSED THE AFORESAID VIEW AFTER CONSIDERING THE AFORESAID SUBMISSIONS WE ARE OF THE VIEW THAT ADDITION MADE IS TOTALLY ARBITRARY AND IS NOT FOUNDED ON ANY COGENT BASIS OR EVIDENCE. WE HAVE TO KEEP IN MIND THAT THE ASSESSEE WAS MARRIED FOR MORE THAN 25 -30 YEARS. THE JEWELLERY IN QUESTION IS NOT VERY SUBSTANTIAL. THE LEARNED COUNS EL FOR THE APPELLANT/ASSESSEE IS CORRECT IN HER SUBMISSION THA T IT IS A NORMAL CUSTOM FOR WOMAN TO RECEIVE JEWELLERY IN THE FORM OF 'STREE DHAN' OR ON OTHER OCCASIONS SUCH AS BIRTH OF A CHILD ETC. COLLECTING JEWELLERY OF 906.900 GRAMS BY A WOMAN IN A MARRIED LIFE OF 25-30 YEARS IS NOT ABNORMAL. FURTHERMORE, THERE WAS NO VA LID AND/OR PROPER YARDSTICK ADOPTED BY THE ASSESSING OFFICER TO TREAT ONLY 400 GRAMS AS 'REASONABLE ALLOWANCE' AND TREAT THE OTHER AS 'UNEXPLAINED'. MATTER WOULD HAVE BEEN DIFFERENT IF THE QUANTUM AND VALUE OF THE JEWELLERY FOUND WAS SUBSTANTIAL.' (EMPHASIS SUPPLIED BY UNDERLINING AND BOLD TEXTING BY THE BENCH) 6.2 THE SAID VIEW, IT WAS SUBMITTED, HAS BEEN FOLLOW ED BY VARIOUS COURTS. REFERENCE WAS SPECIFICALLY MADE TO RATANLA L VYAPARI LAL JAIN OF THE GUJRAT HIGH COURT AND CIT VS SATYA NARAIN PATNI OF THE RAJASTHAN HIGH COURT. RELYING ON THESE DECISIONS, IT WAS SUBM ITTED THAT THE JEWELLERY FOUND IS MUCH LESS THAN WHAT THE ASSESSEE CAN BE SAID TO HOLD. IN SUPPORT OF THE SAID ASSERTION, THE FOLLOWING RELEVANT FACT S RELYING ON RECORD HAVE BEEN REFERRED TO : ASSESSEE'S FAMILY CONSISTS OF THE FOLLOWING MEMBERS VIZ: SELF, REKHA MITTAL (WIFE), TWO UNMARRIED SONS AKASH MITTAL & SMARTH MITTAL AND MAR RIED DAUGHTER ASHITA MITTAL. BESIDES THE JEWELRY OF ABOVE FAMILY MEMBERS JEWELRY OF SADHNA ARYA (REAL SISTER OF REKHA MITTAL). SINCE DR. NARESH MITTAL WAS THE ONLY SON O F HIS PARENTS, THE JEWELRY OF HIS FATHER AND MOTHER WHO EXPIRE IN YEAR 200Q ALSO FORMED PART OF JEWELRY FOUND AT RESIDENCE & LOCKERS BEING INHERITED JEWELRY. ON THAT BASIS EXPL AINED JEWELRY SHALL BE 2400GMS ((SOOGMS (WIFE)+500GMS (MARRIED DAUGHTER)+500GMS(LA TE MOTHER) +100GMS (SELF) +200GMS (2 SONS)+100GMS (LATE FATHER)+500GMS (SISTE R IN LAW)) MUCH MORE THAN THE JEWELRY TREATED AS UNEXPLAINED JEWELRY. 7. THE LD. CIT-DR RELIED UPON THE FINDINGS OF THE CIT(A). R ELYING ON THE SAME, IT WAS HIS SUBMISSION THAT TO THE EXTENT RELIEF MAINTA INABLE UNDER LAW HAS ALREADY BEEN GRANTED BY THE CIT(A) AND NO FURTH ER RELIEF ON FACTS WAS WARRANTED. THE FAMILY SIZE AND STATUS, IT WAS SUBMIT TED, IS A MATTER OF RECORD. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IN ORDER TO ADDRESS THE SUBMISSIONS OF THE PAR TIES BEFORE THE BENCH ITA 539/CHD/2015 A.Y. 2011-12 PAGE 13 OF 25 WHERE ADMITTEDLY THE ARGUMENTS ADVANCED ON BEHALF OF TH E ASSESSEE HAVE CONSISTENTLY BEEN ARGUED RELYING UPON THE VERY SAME E VIDENCES, SUBMISSIONS AND POSITION OF LAW, THE CIT(A) HAS DECIDED THE IS SUE IN THE FOLLOWING MANNER : THE ELABORATE EXPLANATIONS WERE APPARENTLY NOT PLA CED BEFORE THE AO. I FIND THAT AO HAS GIVEN BENEFIT OF JEWELLERY RELATING TO SON'S TI KKA AND MARRIAGE. A SUM OF RS. 2,88,986/- HAS BEEN STATED RELEASED ON ACCOUNT OF HIS DAUGHTER , FOR WHICH I AM NOT DRAWING ANY ADVERSE VIEW. HOWEVER AS FAR AS THE CONTENTION THAT MAJORITY OF THE PURCHASES WERE FROM SALE RECEIPT OF LAND IN 1999 IS RATHER FAR-FETCHED AS NOTHING HAS BEEN FURNISHED TO SHOW HOW THE CONSIDERATION WAS TREATED IN THEIR INDIVIDUAL R ETURNS OF INCOME/ BANK ACCOUNTS ETC. TO ALSO PUT THE ONUS ON THE AO THAT HE DID NOT VERIFY FROM OTHERS IS NOT ACCEPTABLE AS THE PRIMARY ONUS LIE ON THE ASSESSEE TO FIRST PROVE HIS CASE SATISFACTORILY AND EXPLAIN THE SOURCE OF ACQUISITIONS. BE THAT AS IT MAY, IT IS QUITE EVIDENT THAT SOME OF THE JEWELLERY WAS INHERITED AND SOME PURCHASED MUCH EARLIER WHEN THE RATE OF GOLD WAS LO WER. ON THE OTHER HAND IT IS ALSO TRUE THAT THE SOURCE OF ACQUISITION HAS NOT BEEN SATISFA CTORILY EXPLAINED. THE FACT THAT A SURRENDER OF ADDITIONAL INCOME WAS MADE BY THE ASSE SSEE U/S 132(4) IS NOT IN DISPUTE EITHER. THUS, CONSIDERING THE FACTS OF THE CASE AS DISCUSSED ABOVE, AND TO MEET THE ENDS OF JUSTICE, 1 AM OF THE OPINION THAT A LUMPSUM OF RS.1 0 LAKHS BE ACCORDED TO THE ASSESSEE APART FROM RS.2,88,986/-. IN OTHER WORDS ASSESSEE GETS A RELIEF OF US.12,88,986/-. ASSESSEE PARTLY SUCCEEDS HERE. 8.1 ON A READING OF THE ABOVE, WE FIND THAT IN THE PEC ULIAR FACTS AND CIRCUMSTANCES OF THE PRESENT CASE THE CONCLUSION ARRIVED AT BY THE CIT(A) IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE PRESENT CA SE IN AN AD HOC MANNER CANNOT BE UPHELD. WE FIND THAT IN THE CONCLUSIONS D RAWN BY THE CIT(A) IN PARA 5.1, THE AFFIDAVITS OF THE ASSESSEES DAUGHTE R MS. AASHITA MITTAL AND THE ASSESSEES WIFES SISTER MRS. SADHNA ARYA HAVE BEEN COMPLETELY IGNORED. THE AFFIDAVITS HAVE BEEN BEFORE THE AO AND HAVE REMAINED UNREBUTTED ON RECORD. IT IS ALSO SEEN THAT THE CLAIMS OF THE ASSESSEE THAT THE JEWELLERY FOUND STOOD EXPLAINED BY THE LOOSE SLIPS ALSO FOUND FROM THE LOCKERS ITSELF, IT IS NOTICED, HAS ALSO NOT BEE N ADDRESSED. BE THAT AS IT MAY, WE FIND THAT CONSIDERING THE JUDICIAL PRECE DENT AVAILABLE AND THE STANDARD OF LIVING AND CUSTOM OF THE ASSESSEES FAMILY WHICH AT THE RELEVANT TIME CONSISTED OF THE ASSESSEE, HIS WIFE 2 SONS A ND A MARRIED DAUGHTER AND ALSO HELD JEWELLERY INHERITED FROM ASSESSEE'S LATE FATHER AND MOTHER INCLUDING THE JEWELLERY KEPT WITH ASSESSEE'S WIFE BY HER SISTER. THE JEWELLERY RELYING ON THE JUDICIAL PRECEDENT CONSIDERING THE FACTS TO THE EXTENT OF 2400 GMS. CAN BE SAID TO BE EXPLAINABLE. ADMITTE DLY THE JEWELLERY FOUND DURING THE COURSE OF THE SEARCH WAS MUCH LESS TH AN THIS. ACCORDINGLY, WE FIND THAT ON THIS GROUND THE PART ADDITION SUSTAINED BY THE CIT(A) ON FACTS CANNOT BE UPHELD. THE ADDITION SUSTAINED IS DIRECTED TO BE DELETED. THE DECISION IS SUPPORTED BY THE DECISION OF THE HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS KANHAIYA LAL ITA NO. 445 OF 2008 (ALL. ITA 539/CHD/2015 A.Y. 2011-12 PAGE 14 OF 25 HC). THE JUDGES OF THE HON'BLE ALLAHABAD HIGH COUR T TAKING NOTE OF THE DIFFERENCE OF OPINION BETWEEN THE JUDICIAL MEMBER A ND THE ACCOUNTANT MEMBER ON THE QUESTION WHETHER FOR THE SI LVER BULLION WEIGHING 240 KGS. SEIZED FROM THE RESIDENCE OF THE ASSESSEE DURING THE COURSE OF SEARCH U/S 132(1) OF THE ACT THE EXPLANA TION GIVEN BY THE ASSESSEE SHOULD BE ACCEPTED OR NOT TOOK NOTE OF THE FOLLOW ING CONCLUSION OF THE THIRD MEMBER, WHO HELD AS FOLLOWS: ONE THING IS CLEAR THAT THE SILVER BULLION WAS SEIZ ED FROM THE HOUSE BELONGING TO TWO SONS WHO CLAIMED THE OWNERSHIP OF THE SILVER BULLION. THOUGH, THERE IS NO DIRECT EVIDENCE TO PROVE THE FACTUM OF GIFT OF T HE SILVER BULLION OF 240 KGS., BY THE ASSESSEE'S MOTHER TO HER SON AND ADMITTEDLY NO WILL WAS EXECUTED BY HER, BUT THAT COULD, HOWEVER, BE THE SITUATION BECAUSE O F COMMON FEATURES PREVAILING IN THE INDIAN FAMILIES. LOOKING TO THE C IRCUMSTANTIAL EVIDENCE AND MATERIAL ON RECORD IT, THE FACT THAT THE ASSESSEE'S FATHER WAS CARRYING ON SILVER BUSINESS AT KHERLY, DISTRICT ALWAR, RAJASTHAN STAND S; THE FACT THAT BEFORE HIS DEATH 240KGS. OF SILVER BULLION WERE HANDED OVER TO HIS WIFE SMT. NARVADA DEVI AS AVERRED IN THE AFFIDAVIT OF SH GIRRAJ PRASA D AGRAWAL, THE CLAIM OF THE ASSESSEE DESERVES TO BE ACCEPTED. THE SUSPICION ENT ERTAINED BY THE A.O. THAT SMT. NARVADA DEVI HANDED OVER THE SAID BULLION RECE IVED FROM HER HUSBAND TO HER ONLY ONE SON IE., ASSESSEE AND NOT TO THE OTHER WITH THE EXPRESSED DESIRE THAT THE SAME MAY BE DISTRIBUTED EQUALLY AMONGST HI S SONS SHRI ANIL KUMAR AND SHRI MANOJ KUMAR ALSO STANDS EXPLAINED BY THE AFFID AVIT STATING THAT SHE RESIDED WITH THE ASSESSEE AND HIS FAMILY WHO HAD TA KEN CARE OF IN HER OLD AGE. THE CONFIRMATIONS OF THE SONS OF THE ASSESSEE ALSO AFFIRMED THE OWNERSHIP OF THE SAID SILVER BULLION RECEIVED THROUGH THE GRANDMOTHE R. NON-DISCLOSURE OF THE SILVER BULLION BY THE TWO SONS IN THEIR WEALTH-TAX RETURNS WERE STATED TO BE NOT LIABLE TO TAX UNDER THE WEALTH-TAX ACT. ON THESE FA CTS AND CIRCUMSTANCES, THE ADDITION ON ACCOUNT OF THE SILVER BULLION IN THE HA NDS OF THE ASSESSEE TO THE EXTENT OF 240 KGS. OF SILVER MAY NOT BE JUSTIFIED A ND THE SAME HAS TO BE CONSIDERED IN THE HANDS OF HIS SONS SHRI ANIL KUMAR AND SHRI MANOJ KUMAR WHO ARE ASSESSEE'S IN THEIR OWN RIGHT 8.2 IT IS SEEN THAT THEREAFTER THE HON'BLE JUDGES PROCE EDED TO HOLD AS UNDER: EVEN OTHERWISE IN INDIAN CULTURE IT IS BUT NATURAL THAT GRANDMOTHER, WHO IS RESIDING WITH ONE OF HIS SON, WHO IS TAKING CARE OF HER OLD AGE AND OTHER PROBLEMS GENERALLY GIVES ALL THE PROPERTY TO THE SON OR THE GRANDSON WITH WHOM SHE IS LIVING AND IN THIS CASE TO HER GRANDSONS. IN THIS VIEW OF THE MATTER, WE ARE OF THE CONSIDERE D OPINION THAT THE TRIBUNAL HAD NOT COMMITTED ANY ILLEGALITY IN HOLDING THE EXPLANA TION GIVEN BY THE ASSESSEE REGARDING 240KGS SILVER BULLION AS PLAUSIBLE AND HA S RIGHTLY ACCEPTED IT.' 9. PROCEEDING TO THE NEXT ISSUE AGITATED BY THE ASSE SSEE IN THE PRESENT PROCEEDINGS, IT IS NOTICED THE ASSESSEE WAS REQUIRED TO E XPLAIN THE CASH OF RS. 10 LAKH FOUND FROM HIS RESIDENCE IN THE COURSE OF THE SEARCH. THE SPECIFIC QUESTION PUT TO THE ASSESSEE AND THE ASSESSEES ANSWE R RECORDED IN THE STATEMENT UNDER SECTION 132 (4) HAS BEEN EXTRACTED IN THE ASSESSMENT ORDER. FOR READY REFERENCE SAME IS REPRODUCED HEREUNDER : Q. TODAY SOME CASH HAS BEEN FOUND FROM YOUR RESIDE NCE. IT IS BEING INVENTORIED. PLEASE GIVE THE SOURCE OF THE CASH ? ANS. AS TOLD EARLIER SH. AMIT CHAUDHARY GAVE 10 LAC S IN CASH AS EARNEST MONEY FOR AMRAVATI FLAT. ITA 539/CHD/2015 A.Y. 2011-12 PAGE 15 OF 25 THE AGREEMENT IS YET TO BE SIGNED. HE LIVES INN UPP AL FLATS NEAR FIRE STATION & HIS MOBILE NO. - 9216786611.' (EMPHASIS SUPPLIED) 9.1 THE ASSESSEE FILED ITS EXPLANATION STATING THAT THE AMOUNT HAD BEEN ADVANCED BY SH. AMIT CHAUDHARY FOR SALE OF PLOT AT MANIMA JRA DESCRIBED AS AMRAVATI PLOT. AFFIDAVIT OF SH. AMIT CHAUDHARY WAS FILED IN SUPP ORT OF THE CLAIM. THE AO WAS NOT CONVINCED WITH THE EXPLANATION AND M ADE THE ADDITION OF THE SAID AMOUNT IN THE HANDS OF THE ASSESSEE. THE ISSUE WAS AGITATED IN APPEAL BEFORE THE CIT-A AND IS FOUND DISCUSSED AT PAGES 18 TO 22. IT IS SEEN THAT THE SUBMISSIONS ADVANCED BEFORE THE CIT-A ARE A REITERATION OF THE SUBMISSIONS BEFORE THE AO NAMELY THAT THE AMOUNT WAS STATED TO BE AN ADVANCE FOR SALE OF PROPERTY. IT WAS SU BMITTED THAT THE DEAL COULD NOT MATURE ON ACCOUNT OF LACK OF AVAILABILITY OF THE OR IGINAL PAPERS OF THE PROPERTY . ACCORDINGLY, IT WAS STATED THAT THE AMOU NT WAS RETURNED BACK TO SHRI AMIT CHAUDHARY BY CHEQUE. IN THE CIRCUMSTANCES, TH E ADDITION HAS BEEN SUSTAINED BY THE CIT-A HOLDING AS UNDER: 6.1 I HAVE CONSIDERED THE ASSESSEE'S SUBMISSIONS AND THE IMPUGNED ORDER. A TOTAL CASH OF RS.16,09,800/- WAS FOUND AT THE ASSES SEE'S RESIDENCE, OF WHICH THE SOURCE OF RS. 10 LAKHS WAS EXPLAINED TO BE ADVANCE RECEIVE D FROM SH. AMIT CHAUDHARY AGAINST SALE OF PLOT AT MANIMAJRA. LATER IN THE COURSE OF A SSESSMENT PROCEEDINGS, THE ASSESSEE STATED THAT THE DEAL WAS CANCELLED. HOWEVE R, THE AO OBSERVED THAT THE AFFIDAVIT FILED BY AMIT CHAUDHARY DID NOT GIVE THE SOURCE OF THE CASH PAYMENT AND SO THE SAME WAS TREATED AS UNEXPLAINED AS PER PROVISIONS OF SEC 68 IN THE HANDS OF THE ASSESSEE. 9. IN APPEAL, IT WAS EXPLAINED THAT RS..6 LAKHS BE LONGED TO LUXMI ASSOCIATE PVT LTD. AND RS. 10 LAKHS WAS FROM SHRI AMIT, AND THAT EARLI ER ON THE ASSESSEE WAS IN RECEIPT OF CHEQUE OF RS. 5 LAKHS AND RTGS OF RS.2.50 LAKHS FRO M HIM. ASSESSEE IS AGGRIEVED THAT THE DEPARTMENT DID NOT SEEK TO ENQUIRE THE SOURCE OF SU CH PAYMENT BY REFERRING THE MATTER TO THE CONCERNED PERSON CONFIRMING THE CASH PAYMENT IN THE EVENT OF THE AFFIDAVIT CONFIRMING AND GIVING THE IDENTITY OF THE PERSON. I T WAS ALSO ARGUED THAT THE CASH OF RS. 10 LAKHS WAS NOT RECEIVED BY THE ASSESSEE BUT RELAT ED TO THE SALE BY HUF AND SO THE IMPUGNED ADDITION IN THE HAND OF THE ASSESSEE INSTE AD OF HUF WAS ERRONEOUS. 10. HOWEVER, IT IS EVIDENT FROM THE STATEMENT U/S 132(4 ) THAT THE ASSESSEE DID NOT MENTION SUCH POSITION THAT THE CASH OF RS.10 LAKHS RELATED TO THE HUF. THE AFFIDAVIT OF SHRI AMIT DOES NOT GIVE SUCH INDICATION EITHER AND THE REASON FOR CANCELLATION OF THE DEAL STATED THEREIN TO BE ON ACCOUNT OF NON-AVAILABILITY OF ORIGINAL PAPERS IS RATHER OBSCURE. IT IS THEREFORE OBVIOUS THAT THE EXPLANATION FOR THE C ASH OF RS.10 LAKHS IS FAR FROM SATISFACTORY AND SO THE ACTION OF THE AO IN TREATIN G THE SAME U/S 68 IS UPHELD. ASSESSEE FAILS HERE. 10. THE RECORD SHOWS THAT APART FROM THE ARGUMENTS HA VE BEEN ADVANCED BEFORE THE CIT(A) ON THE PROVISIONS OF LAW, THE FOLLOWING SUBM ISSIONS OF THE ASSESSEE EXTRACTED BY THE CIT(A) AT PAGE 19 AND 20 HA VE BEEN ADVANCED ON FACTS. THESE ARE REPRODUCED HEREUNDER FOR READY REFERENCE : DURING THE COURSE OF SEARCH, IT WAS EXPLAINED IN RE SPECT OF CASH OF RS. 10,00,000/-OUT OF RS. 16,00,000/-, WHICH WAS FOUND, WAS RECEIVED FROM AMIT CHAUDHARY AS ADVANCE FOR SALE OF L KANAL PLOT AT AMRAVATI. EARLIER ALSO A SUM OF RS. 5,00,000/-WAS RECEIVED FROM SAID ITA 539/CHD/2015 A.Y. 2011-12 PAGE 16 OF 25 SH. AMIT CHAUDHARY THROUGH CHEQUE WHICH WAS DEPOSIT ED IN THE BANK ACCOUNT OF REKHA MITTAL. IT IS FURTHER TO INTIMATE THAT ANOTHE R AMOUNT OF RS. 2 T 50,000/- WAS RECEIVED FROM AMIT CHAUDHARY THROUGH RTGS UTIBN1033 10 ON 27.11.2010 AND CREDITED TO PNB BANK OF HUF. THE ENTIRE AMOUNT WAS RECEIVED IN CONNECTION WITH THE SALE OF PLOT OF LAI CHAND NARESH CHAND HUF WHO IS THE OWNER OF THE PROPERTY. COPY OF THE CASH BOOK, PROFIT AND LOSS ACCOUNT, BALANCE SHEET OF LAI CHAND NARESH CHAND HUF WERE FILED WITH THE ASSESSING OFFICER, BEING DCIT CIRCLE II CHANDIGARH, THE SAME ASSESSING OFFICER WHO HAS PASSED THE ORDER IN THE CASE OF DR. NARESH MITTAL. THIS INFORMATION WAS FILED IN RESPONSE TO THE QUESTIONNAIRE DATED J 28.2.2013. ALL THE FACTS RELATING TO RECEIPT OFRS. 10,00,000/- FROM AMIT CHAUDHARY WERE BEFORE THE ASSESSING OFFICER. THE FACT THAT PLOT AT AMRAVATI B ELONGED TO LAI CHAND NARESH CHAND HUF WAS ALSO BEFORE THE ASSESSING OFFICER. DURING THE C OURSE OF ASSESSMENT PROCEEDINGS AN AFFIDAVIT OF AMIT CHAUDHARY WAS ALSO FILED WHO HAS CONFIRMED TO HAD PAID RS. 10,00,000/- AS ADVANCE FOR PURCHASE OF PLOT DR. NARESH MITTAL. IT IS ALSO CONFIRMED BY HIM THAT THE DEAL COULD NOT MATURE AND WAS MUTUALLY CANCELLED IN THE ABSENCE OF ORIGINAL PAPERS. THE LEARNED ASSESSING OFFICER WITHOUT MAKING ANY EN QUIRY, DISCARDED THE SWORN AFFIDAVIT. IN CASE THERE WERE ANY DOUBTS IN THE MIND OF THE AS SESSING OFFICER WITH REGARD TO THE VERACITY OF THE CONTENTS OF THE AFFIDAVIT, ASSESSIN G OFFICER COULD HAVE MADE INDEPENDENT ENQUIRIES AND SUMMONED SH. AMIT CHAUDHARY. ALTERNAT IVELY HE COULD HAVE ASKED THE ASSESSEE TO PRODUCE THE PERSON CONCERNED FOR VERIFI CATION. BUT THE LEARNED ASSESSING OFFICER CHOOSE NOT TO MAKE ANY ENQUIRY OR EXAMINE THE PERSO N CONCERNED AND WITHOUT GIVING AN OPPORTUNITY TO REBUT, MADE THE ADDITION ON HIS WHIM S AND FANCIES. (EMPHASIS SUPPLIED) 11. WE HAVE HEARD THE SUBMISSIONS AND PERUSED THE MATE RIAL AVAILABLE ON RECORD. THE LD. ARS SUBMISSIONS HAVE BEEN EXTRACTED IN THE EARLIER PART OF THIS ORDER. THE CIT-DR RELIES ON THE ORDER. WE FIND TH AT IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, THE FINDING ARRIVED AT BY THE CIT(A) ON FACTS CANNOT BE SUSTAINED . IT IS SEEN FROM THE DISCUSSION CARRIED OUT BY THE LD. CIT(A) IN HIS ORDER THAT HE HAS MISDIRECTED HIMSELF BY C ONSIDERING THE CASH OF RS. 16 LAKH FOUND IN THE COURSE OF THE SEARCH WHIC H THE ASSESSEE WAS REQUIRED TO JUSTIFY BEFORE THE AO, THE AO CONSIDERIN G THE FACTS AS IS EVIDENT ON A READING OF THE ASSESSMENT ORDER, HAS MADE THE ADDITION OF RS. 10 LAKH WHICH WAS THE SOLE ISSUE FOR CONSIDERATION BEFORE T HE CIT(A). IT IS FURTHER SEEN THAT THE CIT(A) HAS CONFIRMED THE ADDITION O N THE GROUNDS THAT AT THE ASSESSMENT STAGE THE ASSESSEE DID NOT CLARIFY THAT THE ST ATED PROPERTY BELONGED TO THE HUF OF LAL CHAND NARESH CHAND. THE CIT- A HAS FAILED TO ADDRESS THE FACT THAT THE ASSESSEE HAS SUBMITTED IN WR ITING THAT THIS FACT WAS KNOWN TO THE ASSESSING OFFICER AND WAS EVIDENT ON TH E BASIS OF THE DOCUMENTS AVAILABLE BEFORE HIM. WE FIND THAT THE SAID FACT H AS NOT BEEN REBUTTED BY THE REVENUE. THE FACT THAT THE ASSESSEE W AS FINALISING THE SALE OF THE SPECIFIC PLOT BELONGING TO HUF OF LAL CHAND NARESH CH AND MAY NOT BE SURPRISING AS THE ASSESSEE BEING A KARTA MAY VERY W ELL HAVE BEEN IN HIS RIGHTS TO ACT IN REGARD THERETO. THE FACT THAT ULTIMATELY THE TRANSACTION DID NOT COMPLETE AND THE AMOUNTS WERE RETURNED BY WAY OF CHEQUE STANDS UNDISPUTED. IT IS FURTHER SEEN THAT AFFIDAVIT OF SH. AMIT CHAU DHARY STANDS ITA 539/CHD/2015 A.Y. 2011-12 PAGE 17 OF 25 UN-REBUTTED ON RECORD. THE PRAYER OF THE ASSESSEE BE FORE THE ASSESSING OFFICER THAT MAKE INDEPENDENT ENQUIRIES FROM SHRI AMIT CHA UDHARY ALTERNATELY REQUESTS OF THE ASSESSEE TO CALL FOR THE SAI D PERSON FOR VERIFICATION OF FACTS REMAINS UNADDRESSED BOTH BY THE AO A S WELL AS THE CIT(A) ON RECORD. EVEN TODAY, NOTHING CONTROVERTING THE A FFIDAVITS AND THE SUBMISSIONS IS BROUGHT ON RECORD. ACCORDINGLY, IN VIEW OF TH E MATERIAL AVAILABLE ON RECORD AND THE ABOVE FACTS AVAILABLE WHICH STA ND UN-REBUTTED WE FIND THAT THE ADDITION CANNOT BE SUSTAINED AS THE AMO UNT STANDS ADEQUATELY EXPLAINED BEFORE THE TAX AUTHORITIES. 12. THE NEXT ISSUE AGITATED BY THE ASSESSEE IN THE PRES ENT PROCEEDINGS IS FOUND DISCUSSED AT PAGES 6 TO 13 OF THE ASSESSMENT OR DER WHEREIN IN PARA 6, ASSESSING OFFICER TAKES COGNIZANCE OF PAGES 94, 150 AND 151, SPECIFIC DOCUMENTS FOUND IN THE COURSE OF THE SEARCH. THE CONTEN TS OF THESE DOCUMENTS HAVE BEEN SCANNED BY THE AO AND HAVE BEEN INCLUDED IN THE ASSESSMENT ORDER ITSELF. THE ASSESSEE WAS REQUIRED TO EXPLAIN THE SAME AND RECONCILE THESE WITH HIS BOOKS OF ACCOUNTS. THE ASSES SEE AS PER REPLY DATED 21/03/2013 EXTRACTED AT PAGE 11 OF THE ASSESSMENT OR DER SUBMITTED THAT THE DOCUMENTS PERTAINED TO A DEAL OF LAND WHICH WAS DONE ON 22/01/1993 AND THE DOCUMENTS REFER TO EXPENSES OF TUB E WELL ON THE LAND. THUS, SINCE IT PERTAINED TO 1993 IT WAS CLAIMED TO BE OUTS IDE THE BLOCK PERIOD AS IT WAS A VERY OLD TRANSACTION. ADDRESSING PAGE 151 OF ANNE XURE-A- 2 IT WAS SUBMITTED THAT IT ALSO PERTAINS TO SOME PURCHASE BY THE A SSESSEE IN 1993 AND IT APPEARS TO BE SOME WORKINGS AND THUS BEING OLD, WAS ALSO OUTSIDE THE BLOCK PERIOD. THE REPLY OF THE ASSESSEE WAS NOT ACCEPTED BY THE ASSESSING OFFICER AND THE ASSESSEE WAS REQUIRED TO JUSTIF Y WHY THE EXPENSES RECORDED IN THESE DOCUMENTS SHOULD NOT BE TREATED AS UNEXPLAINED EXPENDITURE. THE ASSESSEE AS PER HIS REPLY DATED 22/03 /2013 EXTRACTED AT PAGE 12 THE ASSESSMENT ORDER SUBMITTED THAT THE DOCU MENTS MAY BE READ IN WHOLE AND COPY OF THE AGREEMENT TO SELL EXECUTED ON 2 1/01/1993 IN FAVOUR OF THE ASSESSEE HAS ALREADY BEEN PLACED ON RECOR D WHEREIN IT WAS AGREED BY MR. RACHPAL TO SELL 22.5 ACRES OF LAND TO THE AS SESSEE @ OF RS. 68, 500 PER ACRE. PAGE 94 WAS STATED TO BE THE FINAL ESTIMAT E. THE RELEVANT EXTRACT OF THE SUBMISSION MADE AVAILABLE BEFORE THE AO EXT RACTED AT PAGES 12 AND 13 OF THE ORDER IS REPRODUCED HEREUNDER : 'AS PER YOUR SPECIFIC QUERY ABOUT THE SEIZED DOCUME NTS MENTIONED ABOVE WE WOULD REQUEST YOUR GOOD SELF TO READ ALL THE DOCUMENTS TO GETHER TO FIND THAT THESE DOCUMENTS ARE VERY MUCH RELATED TO EACH OTHER. WE HAVE ALREAD Y PLACED ON RECORD THE AGREEMENT TO SELL WHICH WAS EXECUTED ON 21.01.1993 IN FAVOR O F DR NARESH MITTAL WHEREIN IT ITA 539/CHD/2015 A.Y. 2011-12 PAGE 18 OF 25 WAS AGREED BY RASHPAL TO SELL 22.5 ACRES TO DR NARE SH MITTAL AT THE RATE OF RS. 68,500/- PER ACRE. PAGE 94 IS THE FINAL ESTIMATE OF THE LAND PURCHASED AT SAUNTLI FROM RACHPAL. FURTHER TO SUBSTANTIATE OUR EXPLANATION WE WOULD LIKE TO MENTI ON THAT RACHPAL IS ALSO MENTIONED AT THE BOTTOM OF THE DOCUMENT. ON PAGE 30 OF ANNEXURE A-2 THE ESTIMATION OF THE VARIOUS EXPENSES TO BE INCURRED IN PURCHASE OF LAND IN 1993 . THE FIGURES ON PAGE 30 ARE ALSO REFLECTING ON PAGE 94 OF ANNEXURE A~2 IN PART 'A'. WHEN THE FINAL SETTLEMENT WAS DONE IT WAS FOUND THAT THE LAND ACTUALLY MEASURE AROUND 20. 75 ACRES AND THEREFORE THE SALE CONSIDERATION WAS DECIDED AFTER MULTIPLYING THE ARE A WITH THE RATE OF RS. 68500/- PER ACRE AS DECIDED IN THE AGREEMENT TO SELL. EVEN AT T HE TOP OF THE DOCUMENT IT IS MENTIONED 20.75 X 68500/- WHICH WAS DONE IN ORDER TO FIND THE TOTAL SALE CONSIDERATION. PART 8 OF PAGE 94 REFLECTS THE MISC EXPENSES TO BE INCURRED IF THE DEAL MATERIALIZES. VARIOUS ITEMS LIKE TEHSILDAR, ADVOCATE SUBSTANTIATE THAT THESE ARE THE PROJECTED EXPENSES FOR THE DEAL . PART C OF THE DOCUMENT CAN BE DIRECTLY CORRELATED W ITH DOCUMENT PAGE 151 OF ANNEXURE A-2. MOST OF THE AMOUNTS WRITTEN IN PART C ARE A/SO REFL ECTED IN PAGE 151 LIKE AMOUNT OF RS. 5,00,000/- AGAINST ADVANCE, 1,50, 000/- AGAINST CASH. FURTHER WE WOULD LIKE TO REITERATE THAT THIS DOCUMENT PERTAINS TO THE LAND PURCHASED I N SAUNTLI WAY BACK IN 1993 AND THIS DOCUMENT DOES NOT BELONG TO THE BLOCK PERIOD. ON THE RIGHT BOTTOM OF THE DOCUMENT YOUR GOOD SELF WILL FIND THAT THE TOTAL OF PART A, B, C HAVE BEEN MADE AND THE TOTAL PROJECTED COST OF THE LAND HAS BEEN CALCULATED. AMOUNT OF RS. 20,000/- PERTAINS TO ANY CONTINGENCIES OCCURRED AT THE TIME OF PURCHASE. ON MAKING THE TOTAL ASSESSES FOUND THAT HE IS LIABLE TO PAY TOTAL AMOUN T OF; RS. 13,34,250/- OUT OF WHICH HE HAD ALREADY PAID RS. 12,46,375/- AND THE BALANCE OF RS. 87,875/- IS OUTSTANDING AGAINST RACHPAL WHO SOLD THE LAND TO THE ASSESSEE IN 1993. 12.1 THE EXPLANATION WAS HELD TO BE UNSUBSTANTIATED BY THE AO LEADING TO THE ADDITION OF RS.26,89,250/-. BEFORE THE CIT-A SUBMISSIONS ON FACTS ON BEHALF OF THE ASSESSEE HAVE BEEN EXTRACTED AT PAGES 26 TO 28. ON A PERUSAL OF THE SAME, IT IS SEEN THAT THE ASSESSEE CANVASSED THA T THERE WAS SOME LITIGATION RELATABLE TO THE SAID PROPERTY WHICH SUBSEQUENTL Y CAME TO THE KNOWLEDGE OF THE ASSESSEE AND REFERENCE HAS BEEN MADE TO JUDG EMENT DATED 15/12/2092 IN THE CASE OF SHRI RAJINDRA PAL SINGH VS GREE N GOLD EUCALYPTUS LTD. THROUGH ITS M.D. SHRI RACHPAL SINGH. COMPLA INTS WERE STATED TO HAVE BEEN FILED BEFORE THE ECONOMIC OFFENCE WING OF POLICE, CHANDIGARH. COPIES OF TWO LEASE DEEDS EXECUTED IN FAVOUR O F SMT. LAKSHMI DEVI I.E. THE MOTHER OF THE ASSESSEE IN RESPECT OF THIS LAND MEASURING 22 KANAL 4 MARLA AND 143 KANAL 19 MARLA WAS RELIED UPON. THE NARRATIONS WERE STATED TO BE EXPLAINED AS WORKINGS FOR OBTAINING INCO ME TAX CLEARANCE CERTIFICATES ETC. WHICH HAS BEEN SHOWN AS PART-B ON PAGE 94. THE EXPENSES ON THE PART-B WERE ALSO EXPLAINED AS EXPENSES INCURRED TOWARDS PAYMENTS FOR OBTAINING INFORMATION FROM COURT/TENSIL/PATWAR KHANA ETC . WHICH WERE NECESSARY EXPENSES FOR VERIFICATION OF TITLE ETC. AND UNDER PART- A ON PAGE 94, IT WAS EXPLAINED THAT THESE WERE DETAILS OF EXPENSES IN CURRED FOR PURCHASE OF COMPUTER ETC. FOR SHRI RACHPAL AND VARIOUS O THER SMALL PAYMENT. IN THE LIGHT OF THESE SUBMISSIONS AS PER SUBMISSIONS EXTRACT ED AT ITA 539/CHD/2015 A.Y. 2011-12 PAGE 19 OF 25 PAGE 28 OF THE IMPUGNED ORDER, THE ASSESSEE ON FACTS HA S ALSO PLEADED AS UNDER: 19. IN CASE THE AO IS OF THE VIEW THAT THESE TRANSACTIO N RELATES TO CURRENT YEAR, THEN HE IS REQUIRED TO PROVE WITH A POSITIVE EVIDENCE THAT THAT THE JOTTINGS ON THE DOCUMENTS RELATE TO CURRENT YEAR. IN THE ABSENCE OF ANY TRANSACTION RELATING TO THE CURRENT PERIOD, THERE CAN NOT BE ANY PRESUMPTION TH AT THIS DOCUMENT RELATES TO CURRENT YEAR. THERE CAN BE NO PRESUMPTION OF FINANC IAL YEAR FOR THE PURPOSES OF SECTION 69C IT IS EXPENDITURE, YEAR OF EXPENDITU RE AND NON SATISFACTORY EXPLANATION THE THREE FACTOR ON THE BASIS OF WHICH DEEMED INCOME HAS TO TREATED AS OF THAT FINANCIAL YEAR. YEAR OF SEARCH A UTOMATICALLY DO NOT BECOME THE FINANCIAL YEAR FOR THE PURPOSE OF SECTION 69C. 12.2 THESE SUBMISSIONS, IT IS SEEN, WERE CONSIDERED BY THE CIT(A) IN THE FOLLOWING MANNER : 7.1 I HAVE CONSIDERED THE ASSESSEE'S SUBMISSIONS AND THE IMPUGNED ORDER. SCANNED COPIES OF PAGES 94,150 AND 150 OF A-2 ARE PLACED IN THE BODY OF THE IMPUGNED ORDER. PAGE 94 IS SEEN TO BE EXPENSES IN CASH ON ACCOUNT O F COMMISSIONS, DUES AGAINST LAND AMOUNTING TO RS.13,34,250/- WHICH CORROBORATES WITH THE ENTIRE IN PAGE 150, WHILE PAGE 151 IS A RECORD OF ENTRIES WITH BALANCE OF RS. 13,55,000/-. IN APPEAL, THE ASSESSEE MADE SIMILAR CONTENTION THA T THE DOCUMENTS WERE VERY OLD PERTAINING TO LAND PURCHASED IN 1993. IN THE SU BMISSIONS, THE ASSESSEE HAS TAKEN PAINS TO EXPLAIN THE CONTENTION BY FURNISHING COPY OF AGREEMENT WITH RACH PAL SINGH (NAME OF RACHPAL APPEARS ON PAGE 94} DATED 22.01.19 93; LEASE DEEDS; LITIGATION PAPERS; COMPROMISE DEED BETWEEN ONE RAJINDER PAL SINGH AND GREEN GOLD EUCALYPTUS LTD THROUGH ITS MD SHRI RACHPAL ETC. IN OTHER WORDS THE REASON FOR THESE OLD PAPERS LYING AROUND WAS DUE TO THE LITIGATION AND ENQUIRY CONDUC TED BY ECONOMIC OFFENCE WING OF THE CHANDIGARH POLICE. THE ASSESSEE IS ALSO AGGRIEV ED WITH THE PRESUMPTION DRAWN BY THE AO THAT THESE DOCUMENTS PERTAINED TO THE CURREN T FINANCIAL YEAR TO INVOKE THE PROVISIONS OF SEC 69C. THE DOCUMENTS CONTAIN NO DATES BUT AT THE SAME TIME , THERE IS NO INDICATION THAT THE EXPENSES PERTAINED TO PURCHASE OF LAND AT SAUNT LI FROM RACHPAL AS CATEGORICALLY OBSERVED BY THE AO. THE AO HAD ALSO OBSERVED THAT T HE EXPENSES RECORDED IN THE DOCUMENTS DID NOT TALLY WITH THE VARIOUS COPY OF SA LE AGREEMENTS FURNISHED BY THE ASSESSEE, NOR RECORDING OF PAYMENTS TO VARIOUS PERS ONS OR UNDER VARIOUS HEADS. THE ENTRIES ON PAGE 94 ARE CLEARLY CLASSIFIED AND CORRE SPOND WITH ENTRIES ON PAGE 150. THE REVERSE OF PAGE 150 MENTIONS THE TERM COMMISSION. P AGE 151 HAS AN ENTRY CASH (OBC) AND CHEQUES SO ASSESSEE COULD HAVE PRODUCED HIS BAN K ACCOUNT TO SHOW THESE ENTRIES IF THEY REALLY PERTAINED TO 1993. ASSERTION S NEED TO BE NECESSARILY SUPPORTED WITH PERSUASIVE EVIDENCE AND ORIGINALS PRODUCED. IT IS ALSO NOT IN DISPUTE THAT ASSESSEE IS/WAS INDULGING IN LAND DEALS. THUS CONSIDERING TH E FACTS OF THE CASE, I AM INCLINED TO STRONGLY SUPPORT THE ACTION OF THE AO IN MAKING THE ADDITION OF RS.26,89,250/-. ASSESSEE FAILS ON THIS GROUND. 13. THE LD. AR REITERATING THE SUBMISSIONS MADE BEFORE THE AO AND THE CIT(A), SUMMED UP HIS SUBMISSIONS AS HAVE BEEN EXTRACTED IN THE EARLIER PART OF THIS ORDER. IT IS SEEN THAT THE ASSESSEE HAS C ONSISTENTLY TAKEN THE CLAIM THAT THE PROPERTIES PERTAIN TO 1993 AND NOT RELATA BLE TO THE SEARCH PERIOD. THE CIT(A) WHILE CONFIRMING THE ADDITION MADE BY THE AO HAS HELD THAT THE ASSESSEE HAS FAILED TO SUBSTANTIATE THIS FACT. R EFERENCE HAS BEEN MADE TO THE FACT THAT NO EFFORTS WERE MADE TO RELATE TH E ENTRIES WITH THE BANK ACCOUNT FOR 1993. THE LD. AR, ON THE OTHER HAND, HAS VEHEMENTLY CONTENDED THAT SINCE NO DATE WAS AVAILABLE ON THE DOCUM ENTS, ACCORDINGLY, ITA 539/CHD/2015 A.Y. 2011-12 PAGE 20 OF 25 THE ONUS WAS PLACED UPON THE REVENUE TO ESTABLISH THAT THESE PERTAIN TO THE BLOCK PERIOD. 14. THE LD. CIT-DR, ON THE OTHER HAND, HEAVILY RELIED UPON THE IMPUGNED ORDER. HE HAS ALSO SUBMITTED THAT THE PRESUMPTION UNDE R LAW IS THAT THESE DOCUMENTS FOUND FROM THE ASSESSEE'S RESIDENCE PERTAIN T O THE SPECIFIC PERIOD AND IT IS FOR THE ASSESSEE TO OFFER ITS EXPLANATION. IT WAS HIS SUBMISSION THAT SINCE IT IS THE CLAIM OF THE ASSESSEE THAT THEY DO NOT PERTAIN TO THE SPECIFIC PERIOD, THEN THE CLAIM HAS TO BE FIR ST DEMONSTRATED BY THE ASSESSEE. IT WAS HIS ARGUMENT THAT THE ASSESS EE IS MAKING CLAIM THAT THESE PERTAIN TO 1993, THEN THE ONUS LAY UPON THE ASSESSEE TO ESTABLISH THIS FACT. THE ADDITION ON FACTS AS THEY STAND, IT WAS SUBMITTED, MAY BE SUSTAINED. 15. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. ON A PERUSAL OF THE SEIZED DOCUMENTS WHICH HAVE BEEN SCANNED IN THE ASSESSMENT ORDER ITSELF, WE FIND THAT NO DOUBT THERE IS NO DATE GIVEN IN THE SAID DOCUMENTS. THE DOCUMENTS HAVING BEEN FOUND IN T HE COURSE OF THE SEARCH FROM THE PREMISES OF THE ASSESSEE WHICH IN THE PE CULIAR FACTS OF THE PRESENT CASE, THE ASSESSEE HAS OWNED AS BELONGING TO H IM, HOWEVER, HIS ARGUMENT IS THAT THEY DO NOT PERTAIN TO THE PERIOD. IN THE FACTS OF THE PRESENT CASE, THE STATED CLAIM HAS TO BE DEMONSTRATED BY THE ASSESSEE. WE HAVE SEEN THAT COPIES OF THE SAME ARE AVAILABLE IN THE P APER BOOK. WE FIND ON GOING THROUGH THE SAME THAT THE RELEVANT FACTS AND SUBMISSIONS HAVE NOT BEEN ADDRESSED. THE ASSESSEES EXPLANATION GOOD O R BAD IS MADE AVAILABLE BEFORE THE TAX AUTHORITIES. IN THE CIRCUMSTANCES THE FINDING ARRIVED AT BY THE CIT-A WHICH IS GENERAL AND VAGUE AND IS NOT ADDRESSING THE FACTS, CANNOT BE UPHELD. WE ALSO FIND THAT THE ASSES SEE ALSO HAS NOT MADE ANY EFFORT TO SUPPORT ITS STATED CLAIM. ACCORDINGLY , HOLDING THAT NO DOUBT THE ONUS WAS ON THE ASSESSEE HAVING OFFERED THE SAME, THE ONUS SHIFTS TO THE REVENUE. IN THE INTERESTS OF JUSTICE, THE ISS UE IS SET ASIDE BACK TO THE FILE OF ASSESSING OFFICER WITH A DIRECTION TO PASS A S PEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONAB LE OPPORTUNITY OF BEING HEARD. WE NOTE THAT PROBABLY AN ENQUIRY CARRIED OUT FOR THE POSSIBLE COST OF THE COMPUTER ITSELF REFERRED TO AS AN ARGUMENT W OULD POSSIBLY ESTABLISH THE SPECIFIC PERIOD ITSELF. 16. THE NEXT ISSUE AGITATED BY THE ASSESSEE IN THE PRES ENT PROCEEDINGS IS FOUND DISCUSSED BY THE ASSESSING OFFICER AT PAGES AT PAGE 14 AND 15 OF HIS ITA 539/CHD/2015 A.Y. 2011-12 PAGE 21 OF 25 ORDER IN PARA 7. A PERUSAL OF THE SAME SHOWS THAT CONSID ERING THE SEIZED DOCUMENTS FOUND FROM THE RESIDENCE OF THE ASSESSEE DES CRIBED AS A2 PAGES 37 AND 41, THE AO NOTICED THAT PAGE 37 OF THE DO CUMENT A-2 TO SHOWS THAT AN ADVANCE PAYMENT OF RS. 50,00,000/- HAS BE EN PAID TO SH. BADHU RAM FOR PURCHASE OF LAND MEASURING 48 KILLA 19 BISWA AT VILLAGE JAROT, DERABASSI @ RS. 1,90,000/- PER KILLA AND AT PAGE 41 IT WAS NOTICED THAT AN ADVANCE PAYMENT OF RS. 20,000/- WAS PAID TO SH. CHAMAN LAL FOR PURCHASE OF 80 ACRES OF LAND AT VILLAGE KHANPUR NARAINGARH , AMBALA. IT IS SEEN THAT THE ASSESSEE WAS CONFRONTED WITH THESE DOCU MENTS BY THE AO. THE RECORD SHOWS THAT THE ONLY EXPLANATION OFFERED BY T HE ASSESSEE BEFORE THE ASSESSING OFFICER WAS THAT THESE ARE VERY OLD PAYMEN TS AND HE HAD NO INFORMATION REGARDING THESE PAYMENTS. THE ASSESSING OFFICER HELD THAT THE ONUS WAS UPON THE ASSESSEE TO EXPLAIN THE DOCUMENTS FOUND FROM HIS POSSESSION IN THE COURSE OF THE SEARCH. MERELY STATING THAT THESE WERE OLD PAYMENTS, IT WAS HELD, CANNOT BE SAID THAT THE ASSESSEE HAS DISCHARGED HIS RESPONSIBILITIES. ACCORDINGLY, IN VIEW OF THE FACT THAT NO RES PONSE THEREAFTER WAS MADE ON BEHALF OF THE ASSESSEE DESPITE AN OPPORTUNITY , HE PROCEEDED TO MAKE THE ADDITION IN THE FOLLOWING WAY : PAGE NO. AREA OF LAND RATE OF LAND TOTAL COST OF LAND 37 48 KILLA 19 BISWA RS 1,90,000 PER KILLA RS. 91,67,500/- 41 80 ACRES RS. 35,000 PER ACRE RS. 28,00,000/- TOTAL RS. 1,1 9,67,500/- THE ASSESSEE WAS ASKED TO SHOW CAUSE WHY THE COMMIS SION INCOME @ 2% ON THE TOTAL VALUE OF LAND DEALING OF RS. 1,19,67,500/- WHICH CO MES TO RS. 2,39,350/- SHOULD BE ADDED BACK TO HIS TOTAL INCOME. 17. IN APPEAL BEFORE THE CIT(A), IT IS SEEN THAT THE ASSES SEE APART FROM OFFERING VARIOUS EXPLANATIONS HAS PROCEEDED TO ADDRESS TH E ISSUE BY RELYING UPON THE COLLECTOR RATE OF LAND IN VILLAGE JAROT DURING THE FINANCIAL YEAR 201112 AND THE COLLECTOR RATE OF AGRICULTURAL LAND IN KHAN PUR BRAMANNA DURING FINANCIALLY 201011 AND TRIED TO WORK BACKWARDS TO SHOW THAT A REFERENCE MADE TO THE AMOUNTS QUA THE SPECIFIC LANDS WOU LD DEMONSTRATE THAT THESE WERE REFERRING TO VERY OLD TRANSACTIONS, ACCO RDINGLY, ADDITION OF COMMISSION INCOME AS WORKED OUT WAS NOT MAINTAINABLE. THE SUBMISSIONS WERE DISMISSED BY THE CIT-A HOLDING AS UNDER : 8.1 I HAVE CONSIDERED THE ASSESSEE'S SUBMISSIONS A ND THE IMPUGNED ORDER. PAGES 37 AND 41 WERE FOUND TO BE RELATING TO LAND DEALS AND TOTAL COST EMANATING WORKED OUT TO RS.1,19,67,500/-. COMMISSION THEREOF @2% WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. IT IS ASSESSEE'S CONTENTION THAT THE RECEIPTS WERE OLD AND THAT THE AO TOOK THE FIGURE OF RS.50 LAKHS, AS ADVANCE PAYMENTS (PAGE 37 OF A-2) W HEN IT WAS ACTUALLY ONLY RS.50,000/-. ITA 539/CHD/2015 A.Y. 2011-12 PAGE 22 OF 25 THE ASSESSEE HAS ALSO TRIED TO SHOW THAT THE RATE C ALCULATED ON THE BASIS OF THE DOCUMENTS OF RS.1,90,000/- PER KILLA (PAGE 37 PERTA INING TO 48 KILLA 19 BISWA) AND RS.35,000/- PER ACRE ( PAGE 41 PERTAINING TO 80 ACR ES) WERE INCORRECT CONSIDERING THE COLLECTOR RATE OF LAND FOR THE FY CONCERNED. THE FACT OF THE MATTER IS THAT ADVANCES FOR LAND HA D BEEN CLEARLY PAID AS PER THE CATEGORICAL RECEIPTS SEIZED WHICH ALSO SPELL OUT CE RTAIN CONDITIONS/SCHEDULE FROM WHICH THE AO MADE THE LOGICAL DEDUCTIONS. IT IS NOT ASSES SEE'S CASE THAT THE LAND DEALS DID NOT HAPPEN AND SO MERELY STATING THAT THE PAYMENTS WERE OLD OR THAT THE AO COULD HAVE MADE FURTHER ENQUIRIES DOES NOT HELP HIM AT ALL. TH US CONSIDERING THE FACTS OF THE CASE, 1 UPHOLD THE ACTION OF THE AO. ASSESSEE FAILS HERE. 18. THE LD. AR RE-ITERATED THE SUBMISSIONS AND RELIED UPON THE SYNOPSIS FILED. THE LD. CIT-DR RELIES UPON THE ORDERS. 19. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS SEEN THAT BEFORE THE ASSESSING OFFICER ADMIT TEDLY THE ASSESSEE FAILED TO GIVE ANY EXPLANATION. IT IS FURTHER SEEN THAT BEFO RE THE CIT(A) THE ASSESSEE TRIED TO WORK BACKWARDS THE VALUE OF THE LAND TRANSACTION AT THE RELEVANT POINT OF TIME SO AS TO SUPPORT THE ASSERTION MA DE THAT THESE WERE OLD PAYMENTS. NOTHING HAS BEEN PLACED BEFORE US TO SHOW WHY THE AS SESSEE IS WORKING BACKWARDS INSTEAD OF RELYING ON CONTEMPORANEO US EVIDENCES TO DEMONSTRATE THAT THE RATES REFERRED TO WOULD SHOW THA T THEY PERTAIN TO A SPECIFIC PERIOD. IT IS NOT THE CASE OF THE ASSESSEE THAT THE DOCUMENTS CANNOT BE PROCURED AS THE ASSESSEE CAN APPLY TO THE LAND REVENUE AUTHORITIES AND PROCURE THE SUPPORTING EVIDENCES. IT IS SEEN THAT THE ASSESSEE HAS SOUGHT TO RELY UPON INFORMATION AVAILABLE IN THE PUBLIC DOMAIN SO AS TO WORK THE LAND RATES BACKWARDS. THE NEE D TO DO SO WOULD ARISE ONLY IF CONTEMPORANEOUS DATA FOR THAT PERIOD IS NOT AVAILABLE. IT IS ALSO SEEN THAT THE CORRECTNESS OF THE SAME HAS NOT BE EN ADDRESSED BY THE CIT (A). ACCORDINGLY, IN THE INTEREST OF JUSTICE, THE ISSUE IS SENT BACK TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO PASS A SPEA KING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE REASONABLE OPPORTUNITY OF BEING HEARD. THE ASSESSEE IN ITS OWN INTERESTS IS DIRECTE D TO PLACE SUPPORTING EVIDENCES BEFORE THE AO. 20. THE NEXT ISSUE AGITATED BY THE ASSESSEE IN THE PRES ENT PROCEEDINGS IS FOUND ADDRESSED AT PAGES 15 TO 21 BY THE ASSESSING OFFIC ER. A PERUSAL OF THE SAME SHOWS THAT CONSIDERING THE DOCUMENTS FOUND IN THE COURSE OF THE SEARCH FROM THE RESIDENCE OF THE ASSESSEE DESCRIBED AS A 2 PAGES 23, 29 AND 30 THE ASSESSING OFFICER CONFRONTING THE SAME TO THE ASSESSEE REQUIRED THAT THEY BE EXPLAINED. 20.1 THE AO NOTED THAT PAGE NO. 23 OF THE DOCUMENT A -2 RECORDS THE TOTAL EXPENSES OF RS. 24,22,850/-WHICH ARE PAID TO VARIOU S PERSONS. ITA 539/CHD/2015 A.Y. 2011-12 PAGE 23 OF 25 20.2 SIMILARLY, PAGE 29 OF THE DOCUMENT/A-2 MAKES RE FERENCE TO PAYMENT OF RS. 75,000/- MADE BY SH. NARESH MITTAL. 20.3 PAGE 30 OF THE DOCUMENT A-2 DEPICTS THE CASH EXPENSES OF RS. 1,11,850/-. 20.4 THE ASSESSEE IS FOUND TO HAVE EXPLAINED THAT THE D OCUMENTS MENTIONED AT PAGE 23 OF ANNEXURE A 2 IS A DOCUMENT W HICH RELATES TO THE TIME WHEN THE ASSESSEE WAS A DIRECTOR IN M/S ASIA GREEN LTD. IT WAS EXPLAINED THAT THE NAMES MENTIONED IN THE DOCUMENT ARE THE NAMES OF THE PARTIES FROM WHOM LANDS WERE PURCHASED BY THE SAID COM PANY SUPPORTED BY THE REGISTRIES EXECUTED IN THE FAVOUR OF THE COMPANY. THE NAMES OF THESE PARTIES WERE; 1. AJAIB SINGH 2. BROTHERS FROM M UKHMAIL PUR PUNJAB 3. RAUNKI 4. VK SOOD 5.BARKHA 6. JUNA RAM 7. SOHAN LAL 8. NATHU RAM AND 9. ROSHAN LAL. SEIZED DOCUMENT PAGE 30 WAS ALSO ST ATED TO PERTAIN TO THE SAME PERIOD CONTAINING MISCELLANEOUS EXPENSES INCURRED BY M/S ASIA GREENS LIMITED. THE ASSESSEE IS FURTHER FOUND TO HAVE STAT ED THAT THE DOCUMENTS AT PAGE 30, 94, 150 AND 151 COULD NOT BE RELA TED TO THE BLOCK PERIOD. THE SAID EXPLANATION WAS FOUND BY THE ASSESSING O FFICER TO BE CONTRADICTORY TO THE REPLY DATED 21/03/2013. 20.5 PAGE 29 WAS EXPLAINED TO BE EXPENSES PERTAINING T O THE MARRIAGE OF ASSESSEES SON SH. AKASH MITHAL IN NOVEMBER 2010. THE WORDS USED TOTAL PACKAGE AND 2 POSTERS IN THE SAID DOCUMENTS WHICH HAD BEEN SCANNED BY THE ASSESSING OFFICER WERE STATED TO BE EVIDENCING TH ESE FACTS. IT HAS ALSO BEEN A SUBMISSION THAT THE MARRIAGE EXPENSES, IT HAD BEE N AGREED WERE TO BE PAID JOINTLY ALONG WITH THE BRIDES FAMILY AND IN FACT TH ESE EXPENSES WERE PAID BY THE BRIDES FAMILY. 20.6 THE SAID EXPLANATION WAS REJECTED BY THE ASSESSIN G OFFICER ON THE GROUNDS THAT IT WAS NOT SUPPORTED BY ANY EVIDENCES. 21. THE ASSESSEE CARRIED THE ISSUE IN APPEAL BEFORE THE CIT (A). THE CIT(A) IT IS SEEN, GRANTED PART RELIEF TO THE ASSESSEE HOLDING AS UNDER : 9.1 I HAVE CONSIDERED THE ASSESSEE'S SUBMISSIONS AND THE IMPUGNED ORDER. A TOTAL ADDITION OF RS.26,09,700/- WAS MADE BASED ON PAGES 23, 29 AN D 30 OF A-2. NOW AS FAR AS PAGE 30JA2~TSCONCERNED, THE ENTRIES OF RS.L,LL,85Q/- ARE THE SAME AS THE TOP PORTION OF PAGE 94 OF A-2 WHICH HAS ALREADY BEEN ADDED IN GROUND NO:6. TH OUGH THERE WAS A CONTRADICTORY STAND ON THE PART OF THE ASSESSEE, EACH NARRATION/FIGURES HO WEVER MATCHES. HENCE THIS AMOUNT IS NOT TO BE ADDED BACK. AS REGARDS PAGE 29, THE ASSESSEE HAS EXPLAIN ED THAT THE SAME PERTAINS TO MARRIAGE EXPENSES OF HIS SON FOR 'PHOTOGRAPHY AND THAT THE SOURCE FOR RS.75,000/-EMANATED FROM WITHDRAWALS OF RS.5,50,000/- MADE BY THE FAMILY FOR THE MARRIAGE. HOWEVER IN THE ABSENCE OF A ITA 539/CHD/2015 A.Y. 2011-12 PAGE 24 OF 25 CASH FLOW, MERE CLAIM WITHOUT ANY SORT OF SUBSTANTI ATION CANNOT BE ACCEPTED. THIS ADDITION IS SUSTAINED. COMING TO PAGE 23, THE ASSESSEE HAS AGAIN CON TENDED THAT THE ENTRIES PERTAINED TO TRANSACTION OF 1995. HERE TOO THE AO OBSERVED THAT THE EXPENSES RECORDED DID NOT RECONCILE WITH THE DETAILS GIVEN IN THE COPIES OF THE DEEDS OF ASI AN GREENS LTD., BESIDES THE OBVIOUS FACT THAT THE NAME OF THE COMPANY DID NOT APPEAR ON THE SAID DOCU MENT. NOTHING HAS BEEN PLACED ON RECORD ABOUT THE COMPANY ASIAN GREENS LTD. POSITION REMAIN S THE SAME IN APPEAL. IN SUCH A BACKDROP, EVEN THE BENEFIT OF DOUBT CANNOT BE GIVEN TO THE ASSESSEE AND ADDITION OF RS.24,22,850/- IS SUSTAINED. TO SUM UP, ASSESSEE GETS A RELIEF OF RS.1,11,8 50/- AND SO PARTLY SUCCEEDS HERE. 22. IT IS SEEN THAT THE SURVIVING ADDITIONS NOW BEFORE T HE ITAT ARE RELATABLE TO THE DOCUMENTS AT PAGE 23 AND 29 OF THE SE IZED DOCUMENT DESCRIBED AS A2. 22.1 CONSIDERING THE SUBMISSIONS ADVANCED ON BEHALF OF THE ASSESSEE BEFORE THE TAX AUTHORITIES AS WELL AS BEFORE THE ITAT WHIC H HAS BEEN EXTRACTED IN THE SYNOPSIS FILED ON BEHALF OF THE ASSESSEE AND THE LD. CIT-DR RELIED UPON THE ORDER IT IS SEEN THAT THE ASSESSEE HAS CONTENDED THAT THEY PERTAIN TO LANDS PROCURED BY M/S ASIA GREEN LTD IN 1995 WHEN THE ASSESSEE WAS A DIRECTOR AND THUS THE DOCUMENT PERTA INS TO A PERIOD OUTSIDE THE BLOCK YEARS. WE FIND THAT THE CIT(A) HAS NOT ADDRESSED THIS SPECIFIC FACT AND HAS HELD THAT IN THE DOCUMENT, THE NAME OF M/S ASIA GREEN LTD IS NOT MENTIONED AND SHE FURTHER GOES ON TO OBSERVE THAT NOTHING HAS BEEN PLACED ON RECORD ABOUT THE COMPANY ASIA GREAMS LTD . ACCORDINGLY, ON GOING THROUGH THIS SPECIFIC FINDING, WE NOTE T HAT THE ISSUE HAS NOT BEEN ADDRESSED BY THE TAX AUTHORITIES AS IT HA S NOT BEEN PROPERLY EXPLAINED BY SUPPORTING EVIDENCES BY THE ASSESSEE. WE N OTE THAT THE TAX AUTHORITIES HAVE ALSO DOUBTED THE VERACITY OF ASSESSEES CLAIM NAMELY THAT THE ASSESSEE WAS A DIRECTOR IN A COMPANY BY THE NAME OF M/S ASIA GREENS LTD. AND EVEN IF THE ASSESSEE IS ABLE TO DEMONSTRATE THIS HOW IT HELPS THE ASSESSEE HAS TO BE ESTABLISHED. THE RELEVANT SALE DEED S ARE STATED TO BE AVAILABLE ON RECORD. ACCORDINGLY, IN THE INTERESTS OF JUSTIC E, IT IS DEEMED APPROPRIATE TO SET ASIDE THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSEE IS DIRECTED TO PLACE FULL FACTS AND EVIDENCES IN SUPPORT OF ITS FAVOUR WHICH CLINCHINGLY DEMONSTRATE THAT THERE WAS A C OMPANY IN THE NAME OF M/S ASIA GREENS LTD. WHICH DID PROCURED THE LANDS ON THE SPECIFIC DATE FROM THE SPECIFIC PEOPLE AND AT THE RELEVANT POINT O F TIME THE ASSESSEE WAS A DIRECTOR OR ANY OTHER EVIDENCE WHICH THE ASSESSIN G OFFICER DEEMS FIT TO BE PLACED BEFORE IT. WE HIGHLIGHT THE FACT ON RECORD TH AT IT IS THE ASSESSEE'S CLAIM THAT THESE ARE OLD DOCUMENTS RELATABLE TO A SPECIFIC PERIOD OUTSIDE THE BLOCK PERIOD, THEN THIS FACT IS TO BE ESTABLISHE D BY THE ASSESSEE ITA 539/CHD/2015 A.Y. 2011-12 PAGE 25 OF 25 AND THOUGH ARGUMENTS HAVE BEEN ADVANCED, HOWEVER, THE CLAIMS HAVE TO BE SUPPORTED BY PLACING EVIDENCES FOR WHICH PURPOSES THE IM PUGNED ORDER IS SET ASIDE AND THE ISSUE IS RESTORED BACK TO THE FILE OF TH E ASSESSING OFFICER WITH THE DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW. 22.2 IT IS SEEN THAT QUA THE ADDITION OF RS.75,000/- SUST AINED BY THE CIT(A) BASED ON THE SPECIFIC DOCUMENT. THE ASSESSEE HAS C ANVASSED BEFORE THE CIT(A) THAT THESE EXPENSES WERE EXCLUSIVELY BORNE BY THE BRIDES FAMILY AND IN THE SUBMISSIONS ADVANCED BEFORE US THE ASSESSEE HAS SOUGHT TO ARGUE THE ISSUE MAKING REFERENCE TO JEWELLERY PURCHASED AND AMOUNT OF RS. 5.5 LACS SPENT OVER AND ABOVE THAT AND HAS MADE A PR AYER THAT THE ADDITION SHOULD BE DELETED IN TOTO. HOWEVER, CONSIDERING THE SUBMISSIONS ADVANCED BEFORE THE TAX AUTHORITIES AND NOTING THAT A NEW LINE OF ARGUMENT HAS BEEN TAKEN, ACCORDINGLY IN THE INTERESTS OF JUSTICE, TH E ISSUE IS RESTORED BACK THE FILE OF ASSESSING OFFICER TO ADDRESS THE ISSUES ON FACTS AND PASS A SPEAKING ORDER CONSIDERING THE ALTERNATE ARGUMENTS ADVA NCED DURING THE PROCEEDINGS BEFORE THE BENCH. 23. ACCORDINGLY THE APPEAL OF THE ASSESSEE IS PARTLY ALLO WED FOR STATISTICAL PURPOSES ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH JULY,2018. SD/- SD/- ( DR.B.R.R.KUMAR) ( DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSTT. REGISTRAR ITAT,CHANDIGARH.