Shri Prithvi Raj Azad, JAIPUR V. ACIT, JODHPUR

ITA 586/JODH/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74931 (ITAT-JODHPUR)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 06-03-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 26-12-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR DEEPAK SEHGAL
• Keywords: Capital asset
• Section: 40A(3); 143(3); 153A; 234B; 139(5); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K.SAINI, ACCOUNTANT MEMBER ITA NO. 586/JU/2013 [ASSESSMENT YEAR 2008-09] SHRI PRITHVI RAJ AZAD VS. THE A.C.I.T S/O SHRI BHARAT KUMAR AZAD CENTRAL CIRCLE - 1 WARD NO. 3, AGARWAL COLONY JODHPUR BALOTRA PAN NO. AEEPA 8717 J ITA NO. 587/JU/2013 [ASSESSMENT YEAR 2008-09] SHRI LAXMI NARAYAN AZAD VS. THE A.C.I.T S/O SHRI RAM GOPAL JI CENTRAL CIRCLE - 1 WARD NO. 3, AGARWAL COLONY JODHPUR BALOTRA PAN NO. ACVPN 9071 F ITA NO. 588/JU/2013 [ASSESSMENT YEAR 2008-09] SMT. PUSHPA DEVI AZAD VS. THE A.C.I.T W/O SHRI BHARAT KUMAR AZAD CENTRAL CIRCLE - 1 WARD NO. 3, AGARWAL COLONY JODHPUR BALOTRA PAN NO. AAJPD 6177 G 2 ITA NO. 589/JU/2013 [ASSESSMENT YEAR 2008-09] SHRI PRIYATAM AZAD VS. THE A.C.I.T S/O SHRI LAXMI NARAYAN AZAD CENTRAL CIRCLE - 1 WARD NO. 3, AGARWAL COLONY JODHPUR BALOTRA PAN NO. AFWPA 4554 L ITA NO. 590/JU/2013 [ASSESSMENT YEAR 2008-09] SMT. SITA DEVI AZAD VS. THE A.C.I.T W/O SHRI MAHENDRA KUMAR AZAD CENTRAL CIRCLE - 1 WARD NO. 3, AGARWAL COLONY JODHPUR BALOTRA PAN NO. AGMPA 3268 L ITA NO. 591/JU/2013 [ASSESSMENT YEAR 2008-09] SHRI MAHENDRA KUMAR AZAD VS. THE A.C.I.T S/O SHRI RAM GOPAL CENTRAL CIRCLE - 1 WARD NO. 3, AGARWAL COLONY JODHPUR BALOTRA PAN NO. AARPK 4389 F ITA NO. 592/JU/2013 [ASSESSMENT YEAR 2008-09] SHRI RAM GOPAL LAXMI NARAYAN, HUF VS. THE A .C.I.T WARD NO. 3, AGARWAL COLONY CENTRAL CIRCLE - 1 BALOTRA JODHPUR PAN NO. AAGHR 3594 A 3 ITA NO. 593/JU/2013 [ASSESSMENT YEAR 2008-09] SHRI RAJENDRA KUMAR PANKAJ KUMAR, HUF VS. THE A.C .I.T KARTA SHRI RAJENDRA KUMAR AZAD CENTRAL CIRCLE - 1 WARD NO. 3, AGARWAL COLONY JODHPUR BALOTRA PAN NO. AACHR 0766C ITA NO. 594/JU/2013 [ASSESSMENT YEAR 2008-09] SHRI BHARAT KUMAR PRAKASH CHAND, HUF VS. THE A. C.I.T KARTA BHARAT KUMAR AZAD CENTRAL CIRCLE - 1 WARD NO. 3, AGARWAL COLONY JODHPUR BALOTRA PAN NO. AABHB 3106 M ITA NO. 595/JU/2013 [ASSESSMENT YEAR 2008-09] SHRI PRAKASH ARJUN, HUF VS. THE A.C.I.T S/O SHRI LAXMI NARAYAN AZAD CENTRAL CIRCLE - 1 WARD NO. 3, AGARWAL COLONY JODHPUR BALOTRA PAN NO. AAIHP 4631 E ITA NO. 596/JU/2013 [ASSESSMENT YEAR 2008-09] SHRI MAHENDRA KUMAR PRASHANT KUMAR, HUF VS. THE A.C.I.T WARD NO. 3, AGARWAL COLONY CENTRAL CIRCLE - 1 BALOTRA JODHPUR PAN NO. AABHM 8248 K (APPELLANTS) (RESPONDENT) 4 ASSESSEE BY : SHRI MAHENDRA GARGIEYA DEPARTMENT BY : DR. DEEPAK SEHGAL, DR DATE OF HEARING : 06.03.2014 DATE OF PRONOUNCEMENT : 13.03.2014 ORDER PER BENCH : THIS IS A BUNCH OF 11 APPEALS FOR A.Y. 2008-09 FILE D BY DIFFERENT ASSESSEES BELONGING TO ONE GROUP. IN ALL THESE APPEALS, ALMOST IDENTICAL ISSUES, ARISING FROM COMM ON SET OF FACTS ARE INVOLVED AND ALL WERE HEARD TOGETHER. THEREFORE, FOR THE SAKE OF CONGRUENCE, CONVENIENCE AND BREVITY, WE PROCEED TO DECIDE THEM BY THIS COMMON O RDER. 2. IT WAS PLEADED BY THE LD. A.R. THAT THE CASE OF SMT. PUSHPA DEVI AZAD IS THE LEADING CASE OF THIS GROUP AND FACTS AND ISSUES RAISED IN THIS APPEAL SHALL COVER FACTS OBTAINING IN ALL OTHER APPEALS AS WELL. 5 ITA NO. 588/JU/2013 SMT. PUSHPA DEVI AZAD A.Y. 2008-09 3. THIS APPEAL BY THE ASSESSEE HAS BEEN FILED AGAIN ST THE ORDER OF THE LD. CIT(A), CENTRAL, JAIPUR ON 29.10.2 013. 3.1. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HER RETURN OF INCOME [ROI] ON 31.07. 2008 DECLARING INCOME OF RS. 6,83,616/-. A SEARCH AND S EIZURE OPERATION WAS CONDUCTED ON 16.7.2008 IN THE ASSESSE E GROUP. CONSEQUENT TO THIS SEARCH OPERATION A NOTICE U/S 153C/ 153A/ 143(3) OF THE INCOME-TAX ACT, 1961 [HER EIN AFTER REFERRED TO AS 'THE ACT', FOR SHORT] WAS ISSU ED TO THE ASSESSEE ON 29.12.2009 AT A TOTAL INCOME OF RS. 17,63,620/-. THE ASSESSEE DERIVED HER INCOME FROM R EAL- ESTATE BUSINESS. ON VERIFICATION OF THE SEIZED MAT ERIAL AND RELATED INFORMATION FURNISHED BY THE ASSESSEE D URING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS NOTICE D THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE H AD PURCHASED CERTAIN PLOTS/PIECE OF LAND AND PAYMENTS FOR 6 WHICH HAD BEEN MADE IN CASH I.E., OTHERWISE THAN BY AN ACCOUNT PAYEE CHEQUE/BANK DRAFT. SINCE CASH PAYMEN TS EXCEEDING RS. 20,000/- WERE FOUND TO HAVE BEEN MADE IN CONTRAVENTION OF THE PROVISIONS OF SECTION 40A(3) O F THE ACT, THE A.O. PROCEEDED TO DISALLOW ACCORDINGLY. SU CH PAYMENTS HAVE BEEN TABULATED BY THE A.O. AT PAGE 3 OF HIS ORDER, WHICH IS BEING EXTRACTED BELOW FOR READY REF ERENCE AS UNDER: A N N EXH PG NO NAME OF SELLER KHASRA NO RAKW A AREA ADDRE SS VALUE OF PROPERT Y DATE OF EXECUTIO N AY MOD E OF PAY MEN T A 27 23 TO 26 MANKANWA R & MANJU DEVI 975/174 /2 02 BIGHA 10 BISWA GRAM JASOL 200000 14.9.07 08 - 09 CASH A 27 15 TO 22 GODAVR I DEVI RATAN LAL 975/174 /2 02 BIGHA GRAM JASOL 200000 28 . 5 .07 08 - 09 CASH A 31 16 TO 17 PRITHVI RAJ B AZAD 222 WAR NO. 29 90000 1.1.2008 CASH A 41 350 TO 356 LALA RAM 527/306 25 BIGHA 15 BISWA GRAM KHER 100000 7.11. 07 08 - 09 CASH A 42 53 TO 61 PEPLI PARAS ETC 733/306 10 BIGHA GRAM KHER 40000 20.11. 0 7 08 - 09 CASH A 42 37 TO 45 JAGDISH PRASAD OM PRAKASH 520/306 11 BIGHA 18 BISWA GRAM KHER 45000 16.11. 07 08 - 09 CASH 7 IN THESE CIRCUMSTANCES, THE A.O. SHOW-CAUSED THE AS SESSEE AS TO WHY NOT 20% OF THE TOTAL CASH PAYMENT MADE IN VIOLATION OF THE PROVISIONS OF SECTION 40A(3) OF TH E ACT BE DISALLOWED. 3.2. IN REPLY, THE ASSESSEE FILED WRITTEN SUBMISSIO NS, WHICH, VERBATIM, READS AS UNDER: ''KINDLY REFER TO YOUR SHOW CAUSE NOTICE ON THE ABO VE SUBJECT. YOUR GOODSELF STATED THAT THE ASSESSEE HAS VIOLATED PROVISION OF SECTION 40A (3) OF THE INCOME TAX ACT, 1961 WHIL E PURCHASING LAND AS PER THE DETAILS GIVEN IN THE ANN EXURE SENT WITH THE NOTICE IN AS MUCH AS THE PAYMENT OF PURCHA SE PRICE MADE OTHERWISE BY WAY OF ACCOUNT PAYEE CHEQUE OR DE MAND DRAFT WAS IN A SUM EXCEEDING RS. 20,000/-. THEREFOR E, NO DEDUCTION THEREOF HAS TO BE ALLOWED WHILE COMPUTING THE INCOME. YOUR GOODSELF ALSO STATED THAT THE DETAILS WERE FOUND FROM THE VERIFICATION OF THE SEIZED MATERIAL AS WAS DETAILED IN THE ANNEXURE. 2. IT APPEARS THAT YOUR GOODSELF HAS PROCEEDED O N THE BASIS OF THE ENTRIES RECORDED IN THE ANNEXURE ACCOMPANIED WITH THE NOTICE WHICH IS PERHAPS TREATED OUT OF BOOKS PURCHA SES AND THEREFORE, UNDISCLOSED INCOME. IT IS CLARIFIED THAT THIS IS NOT A CORRECT FACT. WHATEVER INFORMATION AVAILABLE IN THE SEIZED 8 PAPERS ARE DULY RECORDED IN THE BOOKS OF ASSESSEE WHEN THE PAYMENT WAS MADE, THOUGH THE REGISTRATION OF THE DO CUMENTS MIGHT HAVE TAKEN PLACE IN A SUBSEQUENT YEAR/S OR AS IN SOME CASES THE PAYMENT WAS MADE ON THE BASIS OF AGREEMEN T TO SALE. FROM THE DETAIL AVAILABLE IN THE ANNEXURE ITSELF, IT IS ESTABLISHED THAT TRANSACTIONS ARE GENUINE AND IDENT ITY OF THE PAYEE IS DULY VERIFIED AND THEREFORE IS ESTABLISHED AND NOT AT ALL IN DISPUTE. THE PAYMENT WAS MADE AND ACCEPTED B Y THE ASSESSEE AND PAYEES RESPECTIVELY, WHICH WERE DULY V ERIFIED, AS A FACT BY GOVT. AUTHORITY I.E. WHICH TOO HAD BEE N RECORDED IN THE REGISTERED DOCUMENTS BY THE REGISTERING AUTH ORITY I.E. THE SUB-REGISTRAR OR OTHER EMPOWERED AUTHORITY AS T HE CASE MAY BE AFTER VERIFICATION AND GETTING IT CONFIRMED. AS PER THE MANDATE OF SECTION 58 (C) OF THE REGISTRATION ACT, 1908, SUCH FACT IS TO BE RECORDED BY THE REGISTERING AUTHORITY ON THE DOCUMENTS. THIS SECTION PROVIDES AS UNDER: '58 (C) ANY PAYMENT OF MONEY OR DELIVERY OF GOODS M ADE IN THE PRESENCE OF THE REGISTERING OFFICER N REFERE NCE TO THE EXECUTION OF THE DOCUMENT, AND ANY ADMISSION OF RECEIPT OF CONSIDERATION, IN WHOLE OR IN PART, MADE IN HIS PRESENCE IN REFERENCE OF SUCH EXECUTION. FURTHER SECTION 59 & 60 OF THE SAID ACT ALSO CAST S OME LEGAL RESPONSIBILITIES TO BE DISCHARGED BY THE REGISTERIN G AUTHORITY LIKE RECORDING OF ENDORSEMENT DATE AND CERTIFICATE OF 9 REGISTRATION ETC. THUS, SO FAR AS THE GENUINENESS OF THE PAYMENT IS C ONCERNED, THERE IS NO DISPUTE AND IDENTITY OF ALL THE PAYEES HAD ALSO BEEN ESTABLISHED BY VIRTUE OF THE DOCUMENTARY EVIDE NCES WHICH IS REGISTERED SALE DEED OR AGREEMENT TO SALE. THE BASIC INGREDIENTS FOR THE PURPOSES OF APPLICATION/ INVOKI NG SECTION 40A (3), AS WERE SPELT OUT BY THE SUPREME COURT IN (1991)191 ITR 667 (SC) ATTAR SINGH GURUMUKH SINGH VS. I.T.O. ARE DULY SATISFIED, HENCE SECTION 40A (3) CANNOT BE INV OKED. YOUR GOODSELF HAS REFERRED TO IN THE NOTICE, THE DE CISION OF THE HON'BLE SUPREME COURT IN THE CASE OF ATTAR SING H GURUMUKH SINGH VS. I.T.O. REPORTED IN (1991)191 ITR , 667 (S.C.). YOUR GOODSELF HAS ONLY REFERRED ONE OF THE ISSUE I. E. WHETHER PURCHASES IS AN 'EXPENDITURE' OR NOT. YOUR GOODSELF ESCAPED THE FACT THAT IN THE SAID DECISION THE HON'BLE APEX COURT HAD LAID DOWN THE LAW BY THE SAYING THAT THE SAID SECTI ON 40 A (3) IS NOT AN ABSOLUTE SECTION IN ITSELF. THE SUPREME C OURT SAID THAT 'THE TERMS OF SECTION 40A (3) ARE NOT ABSOLUTE . CONSIDERATION OF BUSINESS EXPEDIENCY AND OTHER RELE VANT FACTORS ARE NOT EXCLUDED. THE GENUINE AND BONA FIDE TRANSACTIONS ARE NOT TAKEN OUT OF THE SWEEP OF THE SECTION. IT IS OPEN TO THE ASSESSEE TO FURNISH TO THE SATISFACT ION OF 10 ASSESSING OFFICER THE CIRCUMSTANCES UNDER WHICH THE PAYMENT IN THE MANNER PRESCRIBED IN SECTION 40A (3) WAS NOT PRACTICABLE OR WOULD HAVE CAUSED GENUINE DIFFICULTY TO THE PAYEE. IT IS ALSO OPEN TO THE ASSESSEE TO IDENTIFY THE PERSON WHO HAS RECEIVED THE CASH PAYMENT.' THUS, IN THE OP INION OF THE SUPREME COURT WHEN THESE FACTORS/ INGREDIENTS A RE ESTABLISHED, SECTION 40 A (3) IS NOT ATTRACTED. THE RELEVANT OBSERVATION OF THE SUPREME COURT IS QUOTED HEREUNDE R, WHICH ARE IN PARA NO. 7 OF THE SAID JUDGMENT. '7. IN OUR OPINION, THERE IS LITTLE MERIT IN THIS CONTENTION. SECTION 40A(3) MUST NOT BE READ IN ISOL ATION OR TO THE EXCLUSION OF RULE 6DD. THE SECTION MUST B E READ ALONG WITH THE RULE. IF READ TOGETHER, IT WILL BE CLEAR THAT THE PROVISIONS ARE NOT INTENDED TO RESTR ICT THE BUSINESS ACTIVITIES. THERE IS NO RESTRICTION ON THE ASSESSEE IN HIS TRADING ACTIVITIES. SECTION 40A(3) ONLY EMPOWERS THE ASSESSING OFFICER TO DISALLOW THE DEDUCTION CLAIMED AS EXPENDITURE IN RESPECT OF WHIC H PAYMENT IS NOT MADE BY CROSSED CHEQUE OR CROSSED BA NK DRAFT. THE PAYMENT BY CROSSED CHEQUE OR CROSSED BAN K DRAFT IS INSISTED ON TO ENABLE THE ASSESSING AUTHOR ITY TO ASCERTAIN WHETHER THE PAYMENT WAS GENUINE OR WHETHE R IT WAS OUT OF THE INCOME FROM DISCLOSED SOURCES. TH E TERMS OF SECTION 40A(3) ARE NOT ABSOLUTE. CONSIDERA TION OF BUSINESS EXPEDIENCY AND OTHER RELEVANT FACTORS A RE 11 NOT EXCLUDED. THE GENUINE AND BONA FIDE TRANSACTION S ARE NOT TAKEN OUT OF THE SWEEP OF THE SECTION. IT I S OPEN TO THE ASSESSEE TO FURNISH TO THE SATISFACTION OF T HE ASSESSING OFFICER THE CIRCUMSTANCES UNDER WHICH THE PAYMENT IN THE MANNER PRESCRIBED IN SECTION 40A(3) WAS NOT PRACTICABLE OR WOULD HAVE CAUSED GENUINE DIFFIC ULTY TO THE PAYEE. IT IS ALSO OPEN TO THE ASSESSEE TO ID ENTIFY THE PERSON WHO HAS RECEIVED THE CASH PAYMENT. RULE 6DD PROVIDES THAT AN ASSESSEE CAN BE EXEMPTED FROM THE PAYMENT BY A CROSSED CHEQURE OR CROSSED BANK D RAFT IN THE CIRCUMSTANCES UNDER THE RULE. IT WILL BE CLE AR FROM THE PROVISIONS OF SECTION 40A(3) AND RULE 6DD TO REGULATE THE BUSINESS TRANSACTIONS AND TO PREVENT T HE USE OF THE CHANCES TO USE BLACK-MONEY FOR BUSINESS TRANSACTIONS. MUDIAM OIL CO. V. ITO [1973] 92 ITR 5 19 (AP). IF THE PAYMENT IS MADE BY A CROSSED CHEQUE DR AWN ON A BANK OR A CROSSED BANK DRAFT, THEN IT WILL BE EASIER TO ASCERTAIN, WHEN DEDUCTION IS CLAIMED, WHETHER TH E PAYMENT WAS GENUINE AND WHETHER IT WAS OUT OF THE INCOME FROM DISCLOSED SOURCES. IN INTERPRETING A TA XING STATUTE THE COURT CANNOT BE OBLIVIOUS OF THE PROLIFERATION OF BLACK-MONEY WHICH IS UNDER CIRCULA TION IN OUR COUNTRY. ANY RESTRAINT INTENDED TO CURB THE CHANCES AND OPPORTUNITIES TO USE OR CREATE BLACK-MO NEY SHOULD NOT BE REGARDED AS CURTAILING THE FREEDOM OF TRADE OR BUSINESS (1991) 191 ITR 667(SC)-ATTARSINGH 12 GURUMUKHSINGH' 5. FROM THE DECISION OF THE SUPREME COURT IT IS ABUNDANTLY CLEAR THAT ALLOWABILITY OF THE EXPENDITURE PAYMENT OF WHICH HAS BEEN MADE EXCEEDING RS. 20,000/- IS ALREADY GU ARDED WITH THE RIDER OF THE BUSINESS EXIGENCY/EXPEDIENCY. IN THE CASES WHERE BUSINESS EXIGENCY IS AT STAKE AND IS LI KELY TO BE JEOPARDIZED OR THE TRANSACTION IS LIKE TO BE FISSIL ED OUT THEN IT IS IMPLIEDLY ESTABLISHED THAT SOME URGENCY OF PAYME NT WAS NECESSARY. IN THE ASSESSEE'S BUSINESS THE MOST OF THE TRANSACTIONS WERE TAKEN PLACE ON THE BASIS OF THE A GREEMENT TO SELL BECAUSE REGISTRATION OF THE TRANSACTION THR OUGH REGISTERED SALE DEED AND PAYMENT THEREFORE THROUGH ACCOUNT PAYEE CHEQUE BOUND TO CONSUME MORE TIMES AND BY THA T TIME THE SELLER OF THE LAND MAY FIND ANOTHER BUYER OR AN OTHER BUYER MIGHT HAVE APPROACHED AND PURCHASED THE LAND FROM SELLER BY SOME BARGAINS. THESE CONTINGENCIES ALW AYS EXIST WHICH ESTABLISH THE FACT THAT IN THE NATURE OF THE BUSINESS ITSELF, THE BUSINESS EXIGENCY IS ALWAYS AT STAKE WH ICH LED TO THE FACT OF COMPULSION, THAT THE PAYMENT WAS TO BE MADE IN CASH. THE TRANSACTIONS WERE, IF TO BE CARRIED OUT ON THE BASIS OF CHEQUE PAYMENT, THEN UNTIL AND UNLESS THE CHEQUES ARE CLEARED AND PAYMENT HAVING BEEN RECEIVED BY THE SELLER AND TILL THAT FACT IS NOT VERIFIED AND RECORDED BY THE REGISTERING AUTHORITY ON THE DOCUMENT ITSELF, WHILE REGISTERING THE DEED, THE REGISTRATION OF THE DOCU MENT 13 CANNOT TAKE PLACE. IN VIEW OF THIS BUSINESS EXIGEN CIES THE PAYMENT HAD TO BE MADE IN CASH THEREFORE, SECTION 4 0A (3) WILL NOT AT ALL BE ATTRACTED. 6. IT IS FURTHER CLARIFIED AND BROUGHT ON RECORD AS A FACT THAT MOST OF THE TRANSACTIONS ARE ALSO INTER SE BET WEEN THE FAMILY MEMBERS, WHICH AT THE TIME OF PURCHASE OF LA ND WERE ENTERED INTO WITH THE SPECIFIC ARRANGEMENT/AGREEMEN T TO RE DIVIDE AND REGIVE SMALL FRAGMENTED LAND AT DIFFEREN T KHASRA TO CONSOLIDATE THE LAND HOLDING OF A SINGLE KHASRA BY EXECUTING THE DEEDS AS PER THE BELONGING OF LAND AN D IN VIEW OF THE EARLIER AND OVERALL HOLDING OF LAND. TO BE M ORE EXPLICIT, THE PURCHASED LAND OF A SINGLE KHASRA WAS PURCHASED BY THE DIFFERENT FAMILY MEMBERS IN THEIR RESPECTIVE NAMES IN SMALL AREA AND IN A FRAGMENTED MANNER, THEREFORE, T O CONSOLIDATE THE LAND HOLDING ACCORDING TO KHASRA WI SE SO THAT A COMPLETE THE CHUNK OF LAND MAY BE AVAILABLE TO A PARTICULAR FAMILY MEMBER IN THE INTEREST OF ALL AND IN VIEW OF BUSINESS EXPEDIENCY RE-ALIGNMENT AND RE-ADJUSTMENT OF RIGHTS WAS MADE BY EXECUTING THE REGISTERED SALE DEED. THUS , IN THIS WAY, FACTUALLY SPEAKING, NO CASH TRANSACTIONS TO TH E EXTENT STATED IN THE DEED HAD TAKEN PLACE NOR IT CAN BE FA CTUALLY POSSIBLE. THUS, AL! THESE TRANSACTIONS OF 22ND FEB . 2006 ARE OF THE LIKE NATURE WHICH TOOK PLACE AMONGST THE FAM ILY MEMBERS. THEREFORE, THE MUTUAL INTER SE TRANSFERS A RE ONLY THE INTER SE SETTLEMENT AND ADJUSTMENT OF RIGHTS IN THE LAND 14 AMONGST THE FAMILY MEMBERS IN THEIR BUSINESS INTERE ST. IT WAS A LIKE AN EXCHANGE OF STOCK, WHICH WAS ONLY CARRIED OUT. THE SAME IS OUT OF THE PURVIEW OF SECTION 40A(3) READ W ITH RULE 6DD. 7. IN VIEW OF THE ABOVE BINDING AND CLARIFYING OBSE RVATION OF THE APEX COURT WHICH IS DIRECTLY ON THE APPLICABILI TY OF SECTION 40A (3), IT WOULD BE APPRECIATED THAT HERE IN CASE OF THE ASSESSEE THE PURCHASE TRANSACTIONS ARE GENUINE. THESE ARE RECORDED IN THE BOOKS OF ACCOUNTS. THE SELLERS ARE THE GENUINE PERSONS AND THEIR IDENTIFICATION IS ESTABLI SHED AND IS NOT DISPUTE. THE PAYMENT THROUGH ACCOUNT PAYEE CHEQ UE WOULD HAVE CAUSED GENUINE DIFFICULTY RENDERING THE TRANSACTIONS IMPOSSIBLE THIS ASPECT OF THE MATTER H AS BEEN ELABORATED AND EXPLAINED IN THE ANNEXURE, ANNEXED W ITH THE SUBMISSION ON THE LINES OF ANNEXURE SENT WITH THE N OTICE BY EXTENDING COLUMNS FOR THE PURPOSE OF EXPLAINING UNA VOIDABLE CIRCUMSTANCES. THUS, YOUR GOODSELF WOULD BE SATISFI ED AND CONVINCED THAT THE PAYMENT THROUGH ACCOUNT PAYEE CH EQUE WAS NOT POSSIBLE AND PRACTICABLE, HENCE, THE PROVIS ION OF SECTION 40A (3) ARE NOT ATTRACTED.' 7. THE ASSESSEE HAS ALSO PLACED RELIANCE UP ON THE FOLLOWING JUDICIAL DECISION;- 15 I. [1994] 209 ITR 753 (P&H) = (1994) 74 TAXMAN 0305 = (1994) 117 CTR (P&H) 391 IN THE CASE OF CIT VS. BR IJ MOHAN SINGH & CO. II. [1986] 53 CTR [RAJ] 19 = [1985] 155 ITR 519 [RA J] = [1985 22 TAXMAN 241 KANTILAL PURSHOTTAM & CO. VS. CIT III. (2007) 208 CTR (RAJ.) 208 = (2008) 298 ITR 3 49 (RAJ.) SMT. HARSHILA CHORDIA VS. ITO 3.3 BUT THE A.O. DID NOT AGREE WITH THE ABOVE SUBMI SSION OF THE ASSESSEE DUE TO THE FOLLOWING REASONS: 1] WITH REGARD THE ASSESSEE'S ASSUMPTION THAT THE E NTRIES MENTIONED IN THE ANNEXURE TO THE SHOW CAUSE NOTICE DATED 10.11.2010 APPEAR TO HAVE BEEN TREATED AS OUT OF TH E BOOKS OF ACCOUNTS BY THE UNDERSIGNED, THE FACT IS THAT TH E ANNEXURE CONTAINS ONLY THE PARTICULARS OF TRANSACTIONS RESPE CTING PURCHASE OF LAND (BEING STOCK IN TRADE) BY THE ASSE SSEE MAINLY IN CASH OR BY BEARER OR SIMPLE CROSSED CHEQUES IN CONTRAVENTION OF THE PROVISIONS OF SECTION 40A(3), WHICH CALLS FOR DISALLOWANCE OF SUCH AMOUNT AS BUSINESS EXPENDI TURES TO THE EXTENT APPLICABLE IN VARIOUS YEARS. THE DISALLO WANCE UPTO A.Y. 2007-08 IS 20% OF SUCH EXPENDITURES AND FOR A. Y. 2008-09 ONWARD, ENTIRE EXPENDITURE IS TO BE DISALLOWED. 16 2] ASSESSEE'S CONTENTION THAT THE PAYMENT IN CASH, THOUGH AGGREGATING MORE THAN RS. 20,000/-IS MADE TO MORE T HAN ONE SINGLE PERSON AND THAT AS SUCH THE SAME IS BELOW RS . 20,000/- IN THE CASE OF EACH INDIVIDUAL PAYEE DOES NOT HOLD GOOD CONSIDERING THE FACT THAT THE PAYMENT IN CASH IN A SUM EXCEEDING RS. 20,000/- HAS BEEN MADE AT A PARTICULA R POINT OF TIME IN A DAY AND THEREFORE THE PAYMENT SO MADE HAS TO BE TREATED AS TO HAVE BEEN MADE IN VIOLATION OF PROVIS IONS OF SECTION 40A(3) AND THAT SUCH PAYMENTS ARE SQUARELY HIT BY THE PROVISIONS OF THAT SECTION. 3] THE ASSESSEE ALONGWITH VARIOUS MEMBERS OF THE FA MILY HAS BEEN ENGAGED IN THE BUSINESS OF REAL ESTATE FOR MAN Y YEARS. THE BUSINESS ACTIVITIES MAINLY INVOLVE PURCHASE OF PLOTS/PIECES OF LAND OF LARGE SIZE AND SUBSEQUENTLY CONVERTING THE SAME INTO NUMBERS OF SMALLER PLOTS AND TO SELL THEM IN OPEN MARKET. BEFORE PURCHASING ANY IMMOVABLE PROPER TY, LOT OF DISCUSSIONS AND NEGOTIATIONS ARE NECESSITATED BE TWEEN THE PARTIES CONCERNED WHICH AT TIMES TAKE DAYS AND MONT HS. SUCH DEALS ARE NOT DONE IN A MOMENT. THE ASSESSEE COULD, HAD SHE WISHED, HAVE EASILY MADE THE PAYMENTS BY WAY OF AN ACCOUNT PAYEE CROSSED CHEQUE OR CROSSED DRAFT TO THE PROSPE CTIVE SELLER. IN THIS LINE OF BUSINESS THERE EXISTS VIRTU ALLY NO ELEMENT OF BUSINESS EXPEDIENCY WARRANTING THE NEED OF PAYMENT IN CASH AS CONTENDED BY THE ASSESSEE. 17 4. IT IS SEEN THAT MANY OF THE TRANSACTIONS RESPECT ING PURCHASE OF LAND IN CASH BY VARIOUS MEMBERS OF THE ASSESSEE GROUP ARE ENTERED INTO AMONGST THEMSELVES ONLY, WHE RE AGAIN THERE DOES NOT EXIST ANY ELEMENT OF BUSINESS EXPEDI ENCY. 5. AS STATED IN 1 ABOVE, THE ASSESSEE'S BUSINESS AC TIVITIES MAINLY INVOLVE THE PURCHASE OF LARGE PIECE OF LAND, BESIDES OCCASIONALLY PURCHASING AND SELLING PLOT OF REGULAR SIZE FOR RESIDENTIAL PURPOSE, AND SELLING THE SAME AFTER CUT TING INTO SMALLER PIECES. IN THE GIVEN FACTS AND CIRCUMSTANCE S, THE ASSESSEE'S CASE IS NOT COVERED BY ANY OF THE EXCEPT IONS PROVIDED IN RULE 6DD OF THE INCOME TAX RULES. 6. THE JUDICIAL DECISIONS RELIED UPON(SUPRA) BY THE LD. AR OF THE ASSESSEE ARE DISTINGUISHABLE IN AS MUCH AS THAT THE FACTS OF THOSE CASES ARE QUITE DIFFERENT FROM THE FACTS O F THE CASE ON HAND. IT IS PERTINENT TO MENTION HERE THAT THIS IS A CASE WHEREIN A SEARCH ACTION U/S 132 OF THE I. T. ACT, 1 961 WAS CARRIED OUT BY THE DEPARTMENT. IN THE COURSE OF SEA RCH, THE MAIN PERSONS OF THE GROUP SHRI BHARAT KUMAR AZAD AN D SHRI PRAKASH AZAD HAVE CATEGORICALLY ADMITTED IN THEIR S TATEMENTS RECORDED U/S 132(4) TO HAVE BEEN INVOLVED IN UNACCO UNTED PURCHASES AND SALES OF LAND AND IN THAT WAY THE GRO UP HAS ADMITTEDLY EARNED AND SURRENDERED UNACCOUNTED INCOM E OF MORE THAN RS. 7 CRORES. THEREFORE, THE ISSUE CANNOT BE JUDGED IN ISOLATION. THE INTENSION OF THE LEGISLATU RE IN 18 BRINGING ABOUT THE PROVISION OF SECTION 40A(3) IS T O CURB THE GENERATION AND CIRCULATION OF BLACK MONEY IN THE EC ONOMY. IN THESE PECULIAR FACTS AND CIRCUMSTANCES, THE ASSESSE E'S CASE HAS TO BE COVERED BY THE PROVISIONS OF SECTION 40A( 3) OF THE I. T. ACT, 1961. 3.4 ACCORDINGLY, THE A.O. HAS DISALLOWED U/S 40A(3) OF THE ACT, A SUM OF RS. 6,75,000/- AND HAS ADDED THE SAME IN THE HANDS OF THE ASSESSEE. AGGRIEVED, THE ASSESS EE FILED FIRST APPEAL AND THE LD. CIT(A) HAS ALSO CONFIRMED THIS ADDITION. THE ASSESSEE IS FURTHER AGGRIEVED AND HA S FILED THIS SECOND APPEAL BY RAISING THE FOLLOWING GROUNDS : 1. THE IMPUGNED ADDITIONS AND DISALLOWANCES MADE I N THE ASSESSMENT ORDER U/S 153A R/W SEC. 143(3) /153B OF THE ACT DATED 29.12.2010 ARE BAD IN LAW AND ON FACTS OF THE CASE, FOR WANT OF JURISDICTION AND VARIOUS OTHER REASONS AND HENCE THE SAME KINDLY BE DELETED. 2. RS.6,35,000/-: THE ID. CIT(A) ERRED IN LAW AS W ELL AS ON THE FACTS OF THE CASE IN PARTLY CONFIRMING THE D ISALLOWANCE MADE BY THE AO U/S 40A(3) OF THE ACT TO THE EXTENT OF RS.6,35,000/-OUT OF RS.6,75,000/-. THE DISALLOWANCE , SO MADE AND CONFIRMED BY THE ID. CIT(A) IS TOTALLY CON TRARY TO 19 THE PROVISIONS OF LAW AND FACTS ON THE RECO RD AND HENCE, THE IMPUGNED DISALLOWANCE KINDLY BE DELETED IN FU LL. 3. THE ID. CIT (A) FURTHER ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN NOT ALLOWING THE BENEFIT OF SET-OFF/ IN NOT GIVING THE CREDIT OF THE ADDITIONAL INCOME OF RS.7,00,000/ - VOLUNTARILY OFFERED BY THE APPELLANT SIMPLY TO TAKE CARE OF ANY POSSIBILITY OF ADDITION/DISALLOWANCE AS A MATTE R OF ABUNDANT PRECAUTION ONLY, EVEN THOUGH NO MATERIAL/E VIDENCE JUSTIFYING ASSESSMENT OF SUCH INCOME WAS FOUND NOR ANY TYPE OF ADDITION/DISALLOWANCE OF ANY NATURE WHATSOEVER, WAS MADE (AND EVEN IF MADE DELETED BY THE APPELLATE AUTHORIT Y). HENCE, THE ASSESSMENT OF SUCH INCOME, MERELY ON AN ADMISSION BUT WITHOUT MATERIAL, HAS NO SANCTION OF LAW AND THEREFORE, KINDLY BE DELETED IN FULL. 4. THE ID. CIT (A) FURTHER ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN CHARGING INTEREST U/S 234A, 234B & 2 34C OF THE ACT. THE APPELLANT TOTALLY DENIES ITS LIABILITY OF CHARGING ANY SUCH INTEREST. THE INTEREST SO CHARGED, BEING CONTR ARY TO THE PROVISIONS OF LAW AND FACTS, KINDLY BE DELETED IN F ULL. 5. THE APPELLANT PRAYS YOUR HONOURS INDULGENCE TO A DD, AMEND OR ALTER ALL OR ANY OF THE GROUNDS OF THE APP EAL ON OR BEFORE THE DATE OF HEARING. 20 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE CAREFULLY PERUSED THE ENTIRE MATERIAL ON RECORD. AT THE TIME OF HEARING, GROUND NO. 1 WAS NOT PRESSED AND THEREFORE, THIS GROUND STANDS DISMISSED AS NOT PRES SED. 5. FACTS APROPOS GROUND NO 2 HAVE ALREADY BEEN NARRATED IN THE FORMER PART OF THIS ORDER. BEFORE U S, BOTH THE PARTIES HAVE REITERATED THEIR ARGUMENTS TAKEN B EFORE THE LD. CIT(A). HOWEVER, AT THE VERY OUTSET, IT WA S CLAMOURED BY THE LD. A.R. THAT THIS ISSUE WHICH IS COMMON IN ALL OTHER APPEALS ALSO, STANDS SQUARELY COVERED BY THE ORDER OF THIS VERY TRIBUNAL RENDERED IN THE CASE OF ANOTHER ASSESSEE BELONGING TO THIS GROUP AND HE HAS SUPPORT ED HIS CONTENTION WITH THE COPY OF TRIBUNAL ORDER, ENCLOSE D AT PAGES 305 TO 334 OF HIS PAPER BOOK. WITH REFERENCE TO INTERNAL PAGES 54 AND 55 AND PARAS 18 AND 19 OF THI S TRIBUNAL ORDER, IT WAS CANVASSED THAT THE IMPUGNED ISSUE STANDS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE A S THE FACTS OBTAINING IN THAT CASE ARE EXACTLY SIMILAR AN D IDENTICAL TO THE FATS INVOLVED IN THESE APPEALS INC LUDING 21 THE CASE IN HAND. THE LD. A.R. SHRI MAHENDRA GARGI EYA, READ OVER THE TRIBUNAL ORDER FOR THE BENEFIT OF THE BENCH IN THE OPEN COURT. HOWEVER, THE LD. [CIT] D.R. SHR I DEEPAK SEHGAL DID NOT AGREE WITH THE ABOVE SUBMISSION OF T HE LD. A.R. HE STATED THAT THE LD. CIT(A) HAS DISTINGUISH ED THIS TRIBUNAL ORDER BY OBSERVING THAT THIS GROUND WAS NO T REALLY DECIDED BY THE BENCH IN THAT CASE AND HAS TREATED S IMILAR GROUND RAISED IN THAT APPEAL AS DEEMED DISPOSED IN THE LIGHT OF THE FINDING GIVEN REGARDING SOME OTHER ISS UE, WHICH WAS ALLOWED BY THE BENCH. 5.1. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE CAREFULLY PERUSED THE ENTIRE MATERIAL ON RECORD. W E HAVE CAREFULLY TREADED THROUGH THIS TRIBUNAL ORDER WHICH HAS BEEN REFERRED TO BY THE LD. A.R., THE LD. CIT(A) AN D THE LD. [CIT] DR. SINCE BOTH OF US WERE ALSO CONSTITUTED I N THE BENCH IN THAT TRIBUNAL ORDER VIDE WHICH APPEALS OF THIS GROUP PERTAINING TO A.YS. 2008-09 AND 2009-10 WERE DECIDED. WE ARE OF THE CONSIDERED OPINION THAT THI S ISSUE STANDS COVERED BY THIS TRIBUNAL ORDER MAY BE IMPLIE DLY. 22 HOWEVER, IN THE ALTERNATIVE, IT WAS ARGUED BY THE L D. A.R. THAT WHEN THE BOOKS OF ACCOUNT ARE REJECTED, NO FUR THER ADDITION U/S 40A(3) OF THE ACT CAN BE MADE. THIS SUBMISSION OF THE LD. A.R. WAS CONTROVERTED BY THE LD. D.R. BY STATING THAT IN FACT, BOOKS OF ACCOUNT HAVE NOT BEEN REJECTED IN THIS CASE. TO THAT, THE LD. A.R. HASTI LY REPLIED THAT THE BOOKS OF ACCOUNT HAVE BEEN IMPLIEDLY BEEN REJECTED AND NOT EXPRESSLY. WE HAVE GONE THROUGH T HE RECORDS AND HAVE NOTICED THAT, IN FACT, THE BOOKS O F ACCOUNT HAVE NOT BEEN REJECTED BY THE A.O. THEREFO RE, THIS COCK WILL NOT FIGHT AND WE CANNOT ACCEPT THIS LEGAL ARGUMENT OF THE LD. A.R. IT WAS FURTHER ARGUED THA T, IT IS NOT A CASE OF PAYMENT IN CASH OUTSIDE THE FAMILY AN D IT IS A CASE OF FAMILY SETTLEMENT WITHIN THE SAME GROUP BELONGING TO ONE LARGER FAMILY IN WHICH EVEN CASH PAYMENTS EXCEEDING A SUM OF RS. 20,000/- WILL NOT A TTRACT SECTION 40A(3) OF THE ACT. AFTER CONSIDERING THESE ARGUMENTS, WE HAVE FOUND THAT THE A.O. HAS HIMSELF MENTIONED IN PARA 4 AT PAGE 7 OF HIS ORDER THAT IT IS SEEN THAT MANY OF THE TRANSACTIONS IN RESPECT OF PURCHAS ES OF 23 LAND, IN CASH, BY VARIOUS MEMBERS OF THE ASSESSEE G ROUP ARE ENTERED INTO AMONGST THEMSELVES ONLY, WHERE AGA IN THERE DOES NOT EXIST ANY ELEMENT OF BUSINESS EXPEDI ENCY. FROM THE RECORDS, IT IS FOUND FOR A FACT THAT THE P AYMENTS MADE WERE NOT TOWARDS SETTLEMENT OF ANY LIABILITY I NCURRED PURSUANT TO EXPENDITURE INCURRED BY THE ASSESSEE. THUS, IT CANNOT BE TREATED AS PAYMENTS MADE IN RESPECT OF AN Y EXPENDITURE. THE FACTS OF THE CASE CLEARLY SUGGEST THAT MAJOR PAYMENTS WERE MADE BY THE ASSESSEE ON ONE SIN GLE DAY, I.E. ON 22.2.2006 AND SOME OF PORTION ON LATER DATES. THESE PAYMENTS ARE NOT REALLY TOWARDS EXPENSES. IT WAS AN ARRANGEMENT OF REALIGNMENT OF THEIR RESPECTIVE OWNERSHIP AND THEIR INTEREST IN VARIOUS PLOTS SCATT ERED IN DIFFERENT KHASRAS. ALL THE MEMBERS OF THIS GROUP H AVE BEEN CARRYING ON BUSINESS IN REAL ESTATE, I.E. PURC HASE AND SALE OF PLOTS/LAND FOR THE PAST MANY YEARS. ANY IN DIVIDUAL MEMBER OF THE GROUP COULD HAVE ACQUIRED SMALL PLOTS SCATTERED IN DIFFERENT PLACES. IN THE SAME KHASRA, OTHER MEMBER OF THE GROUP ALSO OWNED THEIR PLOTS. THUS, IN ONE KHASRA, DIFFERENT FAMILY MEMBERS OWNED FRAGMENTED 24 PORTIONS. HOWEVER, THIS MAY HAVE CREATED LOT OF DI FFICULTY IN PLOTTING AND SELLING THEM, THEREFORE, COGENT OCC ASION AROSE TO STREAMLINE THAT SITUATION. WITH A VIEW TO GET RID OF THIS PROBLEM, AND KEEPING IN VIEW THE BUSINESS EXPEDIENCY AND BUSINESS ACUMEN, A MUTUAL UNDERSTAND ING WAS REACHED AMONGST THE VARIOUS FAMILY MEMBERS TO TRANSFER FRAGMENTS AMONGST THEMSELVES. ACCORDINGLY, ONE PARTICULAR MEMBER IS ABLE TO OWN AND HOLD LARGE CHU NKS OF LAND TO THE EXTENT POSSIBLE. THE ABOVE FACTS ARE N OT CONTROVERTED BY THE DEPARTMENT. THEREFORE, ANY TRANSACTION UNDERTAKEN WITHIN THE SAME FAMILY AND PAYMENTS BEING MADE AMONGST THEMSELVES, WOULD NOT TANTAMOUNT TO EXPENDITURE AND THEREFORE, PROVISIONS OF SECTION 40A(3) WOULD NOT BE ATTRACTED. U/S 40A(3) WHEN ANY ASSESSEE INCURS ANY EXPENDITURE IN RESPECT OF WHICH PAYMENTS OR AGGREGATE OF PAYMENTS MADE TO A PERSON IN A DAY OTHERWISE THAN BY AN ACCOUNT PAYEE CHEQUE/ACCOU NT PAYEE BANK DRAFT EXCEEDS RS. 20,000/-, NO DEDUCTION IS ALLOWED IN RESPECT OF SUCH EXPENDITURE. THE PROV ISION IS VERY CLEAR AND WHEN NO SUCH EXPENDITURE HAS BEEN 25 INCURRED AND PARTICULARLY, WHEN THE ENTIRE GROUP HA S BEEN CONSIDERED AS ONE GROUP, IT CAN BE SAFELY HELD THAT NO TRANSFER OF LAND IS INVOLVED IN SUCH FAMILY ARRANGE MENTS. IT IS DEFINITELY A CASE OF FAMILY SETTLEMENT. WE A RE CONVINCED THAT THE ACCOUNTING ENTRIES SHOWING CASH PAYMENT REPRESENTS ACCOUNTING FOR TRANSACTION IN RE SPECT OF NON-FAMILY MEMBERS WHO ARE SEPARATELY ASSESSED T O TAX. SUCH ENTRIES ARE DECISIVE OF TRUE CHARACTER OF TRAN SACTIONS. THE LAW ON THIS ISSUE IS SETTLED THAT MERE BOOK ENT RY CANNOT DECIDE THE LIABILITIES AND OBLIGATIONS OF A PARTY. IN THIS REGARD, THE OFT-QUOTED JUDGMENTS OF THE HON'BL E APEX COURT RENDERED IN THE CASE OF KEDAR NATH JUTE VS. C IT 82 ITR 363 [SC] AND SATLAJ COTTON MILLS 116 ITR 1 [SC] , ARE RELEVANT AND SUPPORT THE CASE OF THE ASSESSEE. ACCORDINGLY, THE ASSESSEE SUCCEEDS ON THIS ALTERNAT IVE ARGUMENT AND THEREFORE, THE PROVISIONS OF SECTION 4 0A(3) OF THE ACT WILL NOT APPLY TO SUCH PAYMENTS AND NO S UCH DISALLOWANCE @ 20% CAN BE MADE FROM OUT OF SUCH CAS H PAYMENT. THEREFORE, WE DIRECT TO DELETE THE ENTIRE ADDITION SO MADE AND ALLOW GROUND NO. 2 OF THIS APP EAL. 26 5.2. IN VIEW OF THE ABOVE FINDING, GROUND NO. 3 OF THIS APPEAL WILL BE OF ACADEMIC INTEREST ONLY. THE CONT ENTION OF THE ASSESSEE WAS THAT SHRI PRAKASH KUMAR AZAD AN D SHRI BHARAT KUMAR AZAD WERE DOING BUSINESS FOR VARIOUS F AMILY MEMBERS ALSO. THEY MADE ADMISSION AND SURRENDER OF INCOME FOR THEMSELVES AND FOR OTHERS. THEY ALSO RE TRACTED SURRENDER OF INCOME SO MADE. HE STATED THAT THE SURRENDER WAS MADE AS AN ABUNDANT PRECAUTION TO COV ER ANY UNDISCLOSED INCOME FOUND LATER ON DURING THIS S EARCH BUT WHEN NO SUCH ASSET/EXPENDITURE WAS UNEARTHED DU RING THIS SEARCH THE SURRENDERED INCOME CANNOT BE ADDED IN THEIR HANDS OR AT THE WORST IN THE HAND OF OTHER FA MILY MEMBERS. ON THE OTHER HAND, THE LD. [CIT] LD DR HA S VEHEMENTLY REFUTED THE ABOVE SUBMISSION OF THE LD. A.R. STATING THAT THE ASSESSED INCOME CANNOT GO BELOW TH E RETURNED INCOME AND WHATEVER HAS BEEN RETURNED AS INCOME HAS TO BE CONFIRMED. 27 5.3 AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE HAV E FOUND THAT ALL THE ASSESSEES, INCLUDING THE ABOVE T WO, HAVE HONOURED THE SURRENDERED INCOME AND HAVE DISCLOSED THEIR RESPECTIVE PORTION IN THEIR ROIS FILED. THEY HAVE ALSO PAID DUE TAXES THEREON. NONE OF THEM HAS REVISED THEIR ROI U/S 139(5) OF THE ACT. THUS, WE ARE IN AGREEMENT WITH THE LD. [CIT] DR THAT IN THE GIVEN FACTS AND CIRCUMSTANCES OF THIS CASE, THE ASSESSED INCOME CANNOT BE ALLOWED TO GO B ELOW THE RETURNED INCOME. IF WE ALLOW THIS GROUND OF AP PEAL, THE RETURNED INCOME WILL BE MORE THAN THE ASSESSED INCOME. ACCORDINGLY, WE CANNOT ALLOW THIS COMMON G ROUND OF APPEAL WHICH IS SUBJECT MATTER IN MANY APPEALS, AND DISMISS THE SAME. 6. GROUND NO. 4 WHICH PERTAINS TO CHARGING OF INTER EST U/S 234A, 234B AND 234C CANNOT BE ALLOWED AS THE CHARGING OF INTEREST UNDER THESE SECTIONS IS MANDAT ORY UNDER THE ACT. BUT THE ASSESSEE IS ENTITLED TO CONSEQUENTIAL BENEFIT OF QUANTUM DELETIONS. 28 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. 8. IN ALL THE OTHER APPEALS, EXCEPT FOR THE AMOUNT OF DISALLOWANCE BEING DIFFERENT, ALL OTHER FACTS, CIRCUMSTANCES, REASONS FOR ADDITION AND REASONS FOR CONFIRMATION INCLUDING THE SUBMISSIONS OF BOTH THE PARTIES BEFORE US ARE SAME AND SIMILAR. THEREFORE, WITH SI MILAR REASONING, WE ALSO ALLOW THESE APPEAL BY DELETING A LL THE ADDITIONS MADE U/S 40A(3) IN ALL THE CASES. THE OT HER GROUNDS ARE DISPOSED OF AS WE HAVE DONE IN THE CASE OF SMT. PUSHPA DEVI AZAD. TO SUM UP, ALL THE APPEALS O F THE ASSESSEES ARE PARTLY ALLOWED. 29 9. IN THE RESULT, ALL THE APPEALS OF ALL THE ASSESS EES STAND PARTLY ALLOWED. ORDER PRONOUNCED IN THE COURT ON 13.03.2014. SD/- SD/- (N.K.SAINI) [HARI OM MARATHA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 13 TH MARCH, 2014 VL/- COPY TO: THE APPELLANT THE RESPONDENT THE CIT BY ORDER THE CIT(A) THE DR ASSISTANT REGISTRAR ITAT, JODHPUR