SMT SANTOSH AHLUWALIA, Jaipur V. ACIT, Jaipur

ITA 6/JPR/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5202 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 02-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PA R VIHYKFKHZ IZRFKHZ
• Assessee Lawyers: O P AGARWAL CA DH
• Keywords: Search and seizure
• Section: 143(3); 153A; 132; 69

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH HKKXPAN] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF;D LN L; DS LE{K BEFORE: SHRI BHAGCHAND, AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA- @ ITA NO. 06/JP/2013 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2010-11 SANTOSH AHLUWALIA, 65, GOPAL BARI, JAIPUR. CUKE VS. A.C.I.T., CIRCLE-2, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: ABWPA 2764 Q VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT VK;DJ VIHY LA- @ ITA NO. 08/JP/2013 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2010-11 MJS AHLUWALIA, 65, GOPAL BARI, JAIPUR. CUKE VS. A.C.I.T., CIRCLE-2, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: ABYPA 1038 R VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI MANISH AGARWAL & SHRI O.P. AGARWAL (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI KALIKA SINGH (CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 01/06/2016 MN?KKS'K .KK DH RKJH[ K @ DATE OF PRONOUNCEMENT : 13/06/2016 VKNS'K @ ORDER PER: LALIET KUMAR, J.M. BOTH ARE THE APPEALS FILED BY THE ASSESSEES ARISE AGAINST THE ORDERS DATED 27/11/2012 AND 26/11/2012 PASSED BY THE LD CI T(A)-I, JAIPUR. THE EFFECTIVE GROUNDS OF BOTH THE APPEALS ARE AS UNDER: - ITA 06 & 08/JP/2014_ SANTOSH AHLUWALIA VS ACIT 2 GROUNDS OF ITA NO. 06/JP/2013 1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS GROSSLY ERRED IN UPHOLDING THE ADDITI ON OF RS. 5,74,100/- MADE U/S 69 ON ACCOUNT OF CASH BY TREATING THE AS UNEXPLAINED, ARBITRARILY. 1.1. THAT THE LD. CIT(A) HAS FURTHER ERRED IN IGNORI NG THE FACT THAT THE CASH FOUND WAS BELONGING TO M/S RAJASTHAN MINING & ENGINEERING PVT. LTD. WHICH IS DU LY SUPPORTED BY NECESSARY EVIDENCES, THUS THE ADDITION SO CONFIRMED DESERVES TO BE DELETED. 1.2 THAT THE LD. CIT(A) HAS FURTHER ERRED IN MISINTER PRETING THE STATEMENTS OF THE ASSESSEE RECORDED DURING THE COURSE OF SEARCH. 1.3 THAT THE LD. CIT(A) HAS FURTHER ERRED IN IGNORING THE FACT THAT ASSESSEE IS ONE OF THE DIRECTOR OF COMPAN Y M/S RAJASTHAN MINING & ENGINEERING PVT. LTD., WHO OWNED THE CASH AVAILABLE WITH ASSESSEE AND THE CASH BOOK SUBMITTED OF THE COMPANY WAS NOT DOUBTED BY LD. AO OR LD. CIT(A). GROUNDS OF ITA NO. 08/JP/2013 1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS GROSSLY ERRED IN UPHOLDING THE ADDITI ON OF RS.14,13,100/- MADE U/S 69 ON ACCOUNT OF CASH BY TREATING THE SAME AS UNEXPLAINED, ARBITRARILY. 1.1 THAT THE LD. C1T(A) HAS FURTHER ERRED IN IGNORING THE FACT THAT THE CASH FOUND WAS BELONGING TO M/S RAJASTHAN MINING & ENGINEERING PVT. LTD. WHICH IS DU LY SUPPORTED BY NECESSARY EVIDENCES, THUS THE ADDITION SO CONFIRMED DESERVES TO BE DELETED. ITA 06 & 08/JP/2014_ SANTOSH AHLUWALIA VS ACIT 3 1.2 THAT THE LD. CIT(A) HAS FURTHER ERRED IN MISINTER PRETING THE STATEMENTS OF THE ASSESSEE RECORDED DURING THE COURSE OF SEARCH. 1.3 THAT THE LD. CIT(A) HAS FURTHER ERRED IN IGNORING THE FACT THAT ASSESSEE IS ONE OF THE DIRECTOR OF COMPAN Y M/S RAJASTHAN MINING & ENGINEERING PVT. LTD., WHO OWNED THE CASH AVAILABLE WITH ASSESSEE AND THE CASH BOOK SUBMITTED OF THE COMPANY WAS NOT DOUBTED BY LD. AO OR LD. CIT(A). 2. THE BRIEF FACTS OF THE CASE IS THAT THE ASSESSEE IS AN INDIVIDUAL AND ONE OF THE PROMOTER DIRECTORS OF M/S RAJASTHAN MINI NG ENGINEERING PVT. LTD. FOR THE YEAR UNDER APPEAL THE ASSESSEE HAD FIL ED HER RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 3,40,380/-. A SEARCH AND SEIZURE ACTION U/S 132 OF THE INCOME TAX ACT,1961 WAS CARRIED OUT ON 12- 11-2009 AT THE BUSINESS AND RESIDENTIAL PREMISES OF KAMAL JEET SIN GH AHLUWALIA AND GROUP. NOTICE U/S 153A / 153C R.W.S. 143(2) WAS ISSUE D TO THE ASSESSEE. DURING THE COURSE OF SEARCH CASH TOTALLING TO RS 19 ,87,200/- WAS FOUND WHICH COMPRISED OF AN AMOUNT OF RS. 14,13,100/- FOUN D FROM THE RESIDENCE OF ASSESSEE AND THE AMOUNT OF RS.5,74,100 /- FOUND FROM A LOCKER BEARING NO 10 MAINTAINED WITH SBBJ, GOPALBARI , JAIPUR MAINTAINED IN THE NAME OF ASSESSEE. OUT OF THIS AMOUNT AN AMOU NT OF RS. 19,00,000/- WAS SEIZED. FURTHER DURING THE COURSE OF SEARCH JEWELLERY BELONGING TO ASSESSEE WAS ALSO FOUND. SUBSEQUENTLY, ASSESSMENT WAS COMPLETED U/SS. 143(3) R.W.S. 153A/153C OF THE ACT A T A TOTAL INCOME OF ITA 06 & 08/JP/2014_ SANTOSH AHLUWALIA VS ACIT 4 RS. 30,97,310/- BY MAKING ADDITION U/S 69 A (ON PRO TECTIVE BASIS) AFTER TREATING THE CASH FOUND AT THE RESIDENCE OF ASSESSE E CUM OFFICE OF M/S RAJASTHAN MINING ENGINEERING P. LTD. AS UNEXPLAINED MONEY OF ASSESSEES HUSBAND AND ALSO TREATED THE CASH FOUND IN THE ABOV EMENTIONED LOCKER AS UNEXPLAINED MONEY OF ASSESSEE AND MADE ADDITION IN THE HANDS OF ASSESSEE ON SUBSTANTIVE BASIS WHICH WAS ADDED IN THE HANDS OF ASSESSEES HUSBAND ON PROTECTIVE BASIS. LD. AO MADE FURTHER ADDITION ON SUBSTANTIVE BASIS ON ACCOUNT OF DIFFERENCE IN THE WE IGHT OF JEWELLERY AS FOUND DURING THE COURSE OF SEARCH AND AS DECLARED B Y ASSESSEE IN VDIS AND SAME AMOUNT WAS ADDED IN THE HANDS OF ASSESSEES HUSBAND ON PROTECTIVE BASIS. 3. REGARDING GROUNDS NO. 1 TO 1.3 OF THE ASSESSEES APPEAL, THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT DURING THE COURS E OF SEARCH CONDUCTED AT THE RESIDENCE OF THE ASSESSEE, CASH AMOUNTING TO RS. 14,13,100/- WAS FOUND. STATEMENT OF ASSESSEE WAS RECORDED DURING THE COURSE OF SEARCH AND FOLLOWING SPECIFIC QUESTIONS WERE RAISED BY THE S EARCH TEAM WITH RESPECT OF CASH FOUND AT THE RESIDENCE OF ASSESSEE: IZ'U 29 VKT FNUAKD 12-11-2009 DKS VKIDH ?KJ DH RYK KH DS NKSJKU VKIDS FUOKL 65 XKSIKYCKM+H LS UDN :I;S 14]13]100@& IK;S X;S D`I;K VKI BLDK L=KSR CRK,SAA ITA 06 & 08/JP/2014_ SANTOSH AHLUWALIA VS ACIT 5 MRRJ ;G UDNH TKS ESJS FUOKL LS :I;S 14]13]100@& IK; S X;S OS ESJS }KJK FOFHKUU RKJH[K DKS CSAD LS JDE FUDKYH XBZA BLH [KKRS LS CPS GQ, JKFK GEKJS FUOKL LS IKBZ XBZA IZU 30 D`I;K CRK,SA FD ;G JKFK DKSU&LS CSAD LS FU DKYH XBZA MRRJ ;G JKFK LVSV CSAD VKWQ BANKSJ [KKRK LA[;K 630 24837646] CUHIKDZ CZKAP] 'KKL=HUXJ ,OA ,PMHQLH] VFGALK LFDZY] LQHKK'K EKXZ ;G NKSUKSA [KKRK JKTLFKKU EKBZFUAX ,.M ENGG DS UKE GS LS FUDKYH XBZ GSA BUGH CSAD ESA GEKJK AHLUWALIA ALLOY, ,OA MJS AHLUWALIA LOAN A/C GSA ;G STATE BANK OF INDORE ESA GSA IZU 31 VKIUS MIJKSDR IZU DS MRRJ ESA CRK;K FD MDR JKF K VKIDS FOFHKUU CSADKS LS FUDKYH JKF K DH K SK JKF K GSA D`I;K VKI BL LECU/K ESA VKIDH DEIUH M/S. RAJASTHAN MINING & ENGG............. M/S. AHLUWALIA ALLOYS DH CASH BOOK ,OA BANK BOOK DOCUMENTARY EVIDENCE DS LKFK ESA IZLRQR DJSAA MRRJ TSLK FD ESUSA IGYS MIJKSDR CRK;K FD GE DAY TO DAY NKSUKSA DEIUH ,OA QEZ ESA CASH BOOK ,OA BANK BOOK MAINTAIN UGHA DJRS GSA BL LECU/K ESA ESJS IKL DOCUMENTARY EVIDENCE UGHA GSA THE LD AR HAS SOUGHT TO EXPLAIN THE CASH FOUND DURIN G THE COURSE OF SEARCH AND IT WAS SUBMITTED THAT CASH BELONGS TO THE COMPANY OF THE ASSESSEE NAMELY M/S RAJASTHAN MINING AND ENGINEERIN G PVT. LTD.. HOWEVER, THE LD ASSESSING OFFICER WAS NOT CONVINCED WI TH THE EXPLANATION GIVEN BY THE ASSESSEE AND HAS MADE ADDITION OF RS. 14,75,980/- IN THE HANDS OF THE ASSESSEE AND BALANCE IN THE HANDS OF S MT. SANTOSH AHLUWALIA. FINDING OF THE LD ASSESSING OFFICER IS ME NTIONED AT PARAGRAPH NO. 4.3 OF THE ASSESSMENT ORDER, WHICH IS AS UNDER:- 4.3 ASSESSEES REPLY WAS CONSIDERED BUT NOT FOUND T O BE ACCEPTABLE FOR THE REASONS MENTIONED IN THE SHOW CAU SE ITSELF. NO BENEFIT IN VIEW OF THE WEALTH TAX RETURN F ILED BY THE ITA 06 & 08/JP/2014_ SANTOSH AHLUWALIA VS ACIT 6 ASSESSEE CAN BE GIVEN AS NO DETAILS OF JEWELLERY WAS ATTACHED THERETO. FURTHER, THE DIFFERENCE OF 471.3 GMS HAS N OT BEEN EXPLAINED BY THE ASSESSEE SATISFACTORILY. ALSO, THE RE WAS A DIFFERENCE IN VALUATION DONE BY THE ASSESSEE IN ITS WT RETURN AND VALUATION AS DONE BY THE DEPARTMENT VALUER WHICH WAS NOT CHALLENGED BY THE ASSESSEE DURING THE SEARCH AS WELL AS THE ASSESSMENT PROCEEDINGS. IN VIEW OF THIS, THE DIF FERENCE IN WEIGHT OF GOLD (PURITY 89.28%), WHICH, AFTER CONVERSI ON AT THE RATE OF RS. 1500/- PER GRAM, AS VALUED BY THE DEPARTMENT VALUER ON THE DATE OF SEARCH OPERATION, COMES TO AN AMOUNT OF RS. 7,06,950/- AND IS ADDED BACK TO TH E INCOME OF THE ASSESSEE U/S 69A OF THE IT ACT, 1961 ON SUBST ANTIVE BASIS AS THE VDIS SURRENDER WAS DONE IN ASSESSEES N AME ONLY ALSO THE JEWELLERY ITEMS AS PER INVENTORY PREPA RED DURING THE SEARCH CONSISTED TO WOMENS JEWELLERY ITEM S ONLY AND HAS BEEN ADDED IN THE HANDS OF SH. MJS AHLUWALIA ON PROTECTIVE BASIS. PENALTY U/S 271AAA IS INITIATED O N THIS UNEXPLAINED INCOME (GOLD) FOUND DURING THE SEARCH OPERATION. DURING THE COURSE OF ARGUMENT, THE LD AR HAS ALSO P OINTED OUT THAT THE COMPANY NAMELY M/S RAJASTHAN MINING AND ENGINEERING PVT. LTD., FOR WHICH THE ASSESSEE WAS THE DIRECTOR HAS FILED ITS RET URN OF INCOME AND IN THE BALANCE SHEET OF THE COMPANY, CASH AMOUNT, WHICH WAS FOUND DURING THE COURSE OF SEARCH WAS SHOWN IN THE BALANCE SHEET. IT WAS SUBMITTED THAT THE COMPANY BEING JURISTIC PERSON IS ASSESSED SEPARATELY AND ONCE ITA 06 & 08/JP/2014_ SANTOSH AHLUWALIA VS ACIT 7 THE CASH AMOUNT SHOWN IN THE RETURN OF INCOME WAS ACC EPTED BY THE DEPARTMENT THEN THE ADDITION MADE BY THE ASSESSING OFFICER WAS BAD IN LAW IN THE HANDS OF THE ASSESSEE. 3. THE ASSESSEE FEELING AGGRIEVED BY THE ORDER PASSE D BY THE LD ASSESSING OFFICER HAS TAKEN UP THE MATTER IN THE AP PEAL TO THE LD CIT(A). THE LD CIT (A) VIDE ORDER DATED 26/11/2012 HAS CONFI RMED THE ADDITION. WE WOULD LIKE TO REPRODUCE THE FINDING OF THE LD CIT( A) FOR THE PURPOSE OF THEIR REFERENCE:- I HAVE CAREFULLY PERUSED THE ORDER OF THE AO AND T HE SUBMISSIONS OF THE AR AND DO NOT CONCUR WITH THE SUB MISSION OF THE AR ON THE FOLLOWING GROUNDS: 1. THE FIRST PREMISE OF THE AR OF THE APPELLANT IS T HAT THE STATEMENTS OF SHRI MJS AHLUWALIA ARE NOT RELIABLE EV IDENCE BECAUSE HE SUFFERED FROM DIABETES END PARKINSONS D ISEASE WHICH RESULTS IN MEMORY LOSS. MOREOVER, HE DID NOT R AVE TECHNICAL KNOWLEDGE AND SO COULD NOT DISTINGUISH BET WEEN THE LEDGER AND CASH BOOK IN HIS STATEMENTS. I HAVE CAREFULLY PERUSED THE STATEMENT OF SHRI MJS AHLUWALIA AND FIND THAT HE WAS VERY MUCH IN COMMAND OF HIS FAC ULTIES AND WAS ABLE TO FURNISH ALL THE DETAILS AND EXPLANAT ION AS AND WHEN ASKED FOR BY THE DEPARTMENT DURING THE SEARCH OPERATIONS. NOWHERE ON PERUSAL OF HIS STATEMENT DOES IT APPEAR THAT HIS MENTAL CAPACITY WAS AFFLICTED DURING THE CO URSE OF ITA 06 & 08/JP/2014_ SANTOSH AHLUWALIA VS ACIT 8 RECORDING OF THESE STATEMENTS. HOWEVER, HE IS ALLOWED A MARGIN OF DOUBT THAT HE DID NOT KNOW THE DIFFERENCE BETWEEN LEDGER AND CASH BOOK WHICH WAS BEING MAINTAINED ON CO MPUTER OF THE COMPANY. ON PERUSAL OF THE PUNCHANAMA AS WELL , IT IS SEEN THAT THE HARD DISK COPY OF COMPUTER WAS SEIZED DURING THE COURSE OF SEARCH & SEIZURE OPERATIONS. 2. IF THE COPY OF CASH BOOK SUBMITTED ON THE BASIS OF THIS HARD DISK IS ACCEPTED AS ADMISSIBLE EVIDENCE THEN ON PER USAL OF THIS CASH BOOK IT IS SEEN THAT THE ASSESSEE HAD BRO UGHT FORWARDED CASH OF RS.50,88,408/- ON 11/11/2009. THE A R HAS FAILED TO FURNISH ANY EXPLANATION EITHER DURING THE COURSE OF ASSESSMENT OR APPELLATE PROCEEDINGS AS TO WHERE THE BALANCE AMOUNT OF CASH WAS KEPT. NO RECONCILIATI ON OF THE BANK STATEMENTS WITH THE CASH FOUND, AND AS REFL ECTED IN THE CASH BOOK SUBMITTED HAS BEEN FURNISHED. IF H IS EXPLANATION IS ACCEPTED, THAT RS. 19,00,000/- FOUND AT THE PREMISES OF THE ASSESSEE INCLUDING THE LOCKER OF HI S WIFE BELONGED TO THE COMPANY, THEN, HE IS REQUIRED TO FU RNISH A COGENT EXPLANATION REGARDING THE BALANCE CASH OF RS.31,88,418/- WHICH HE HAD FAILED TO. 3. MOREOVER, IT IS VERY UNLIKELY FOR THE CASH OF TH E COMPANY TO BE KEPT IN THE PRIVATE BANK LOCKER OF THE ASSESSEE S WIFE EVEN IF SHE IS A DIRECTOR. THEREFORE, THE ADDITION OF CASH OF RS.14,13,100/- I S CONFIRMED IN THE HANDS OF THE ASSESSEE U/S 69A OF T HE I.T. ITA 06 & 08/JP/2014_ SANTOSH AHLUWALIA VS ACIT 9 ACT AND IT IS HELD THAT RS.5,74,100/- ADDED TO THE INCOME OF THE ASSESSEE ON PROTECTIVE BASIS IS REQUIRED TO BE ADDED TO THE INCOME OF SMT. SANTOSH AHLUWALIA AND RELIEF OF T HIS AMOUNT IS GIVEN TO THE ASSESSEE. 4. NOW THE ASSESSEE IS IN APPEAL BEFORE US. THE LD A R OF THE ASSESSEE HAS SUBMITTED THAT THE AUTHORITIES BELOW HAVE FAILE D TO APPLY CORRECT LAW AND HAVE WRONGLY MADE ADDITION OF THE AMOUNT OF RS. 14,13,100/- IN THE HANDS OF THE ASSESSEE AND HAD WRONGLY ADDED THE AMOU NT OF RS. 5,74,600/- IN THE HANDS OF SMT. SANTOSH AHLUWALIA, WI FE OF THE ASSESSEE AND M/S RAJASTHAN MINING AND ENGINEERING PVT. LTD. THE LD AR FURTHER SUBMITTED THAT AFTER SEARCH ASSESSEE COMPLETE BOOKS OF ACCOUNTS WHICH WERE SUBJECT TO AUDIT AND WERE SUBMITTED BEFORE THE L D. AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS INCLUDING THE CASH BOOK WHICH CLEARLY REFLECTED THE AVAILABILITY IN THE HANDS OF THE SAID COMPANY. DURING THE COURSE OF SEARCH AND IN THE ASSESSMENT PROCEEDING I T WAS EXPLAINED THAT THE CASH FOUND DURING THE COURSE OF SEARCH BELONGED TO THE AFORESAID COMPANY AND NOT THE ASSESSEE. HOWEVER, THE LD. AO HA S REJECTED THE EXPLANATION OF ASSESSEE MERELY ON THE GROUND THAT I N HIS STATEMENTS RECORDED U/S 132(4) THE ASSESSEE DENIED HAVING MAIN TAINED THE BOOKS OF ACCOUNT M/S RAJASTHAN MINING AND ENGINEERING PVT. L TD. AND THUS THE LD. AO ALLEGED THAT THE BOOKS OF ACCOUNT INCLUDING THE CASH BOOK OF THE SAID ITA 06 & 08/JP/2014_ SANTOSH AHLUWALIA VS ACIT 10 COMPANY SUBMITTED BEFORE HIM WAS AFTER THOUGHT. IT I S SUBMITTED THAT IT IS A SETTLED LAW WHERE THE BOOKS OF ACCOUNTS WERE INCOMPL ETE AT THE TIME OF SEARCH, THE ASSESSEE SHOULD GIVE AN OPPORTUNITY TO COMPLETE THE SAME. ACCORDINGLY THE ASSESSEE AFTER THE SEARCH HAS COMPL ETED THE BOOKS OF ACCOUNTS OF HIS COMPANY WHICH ARE DULY AUDITED U/S 4 4 AB OF THE INCOME TAX ACT, 1961 WHICH INCLUDES THE CASH BOOK AS WELL AND WERE SUBMITTED ALONG WITH RETURN OF INCOME FILED BY THE SAID COMPAN Y AND WAS A PART OF THE RECORD OF THE DEPARTMENT. THUS, THE ALLEGATION O F THE LD. AO THAT THE SUBMISSION OF THE BOOKS OF ACCOUNT INCLUDING THE CA SH BOOK WAS AN AFTERTHOUGHT WAS COMPLETELY MISPLACED AND WRONG. HE P LACED RELIANCE ON THE DECISION IN THE CASE OF VM THAKKAR VS. ACIT REPORTED IN 107 TAXMAN 85. A PERUSAL OF THE CASH BOOK OF M/S RAJASTHAN MINING & ENGINEERING P. LTD. WOULD SHOW THAT THERE WAS A CLOSIN G BALANCE OF RS. 50,69,938/- AS ON THE DATE OF SEARCH, WHICH WAS WELL A BOVE THE CASH FOUND AT THE BUSINESS PREMISES AS WELL AS LOCKER OF THE DIRECTORS OF THE SAID COMPANY I.E. THE ASSESSEE AND HIS WIFE SMT. SAN TOSH AHLUWALIA. THE ALLEGATION OF LD. AO THAT THE ASSESSEE HAS NOT BEEN ABLE TO ESTABLISH THE SOURCE OF CASH FOUND DURING THE COURSE OF SEARCH IS COMPLETELY MISCONCEIVED AND BASED ON WRONG APPRECIATION OF FACT S AND CIRCUMSTANCES OF THE CASE. THUS, IT WAS ESTABLISHED BY THE ASSESSEE DURING THE COURSE OF ITA 06 & 08/JP/2014_ SANTOSH AHLUWALIA VS ACIT 11 ASSESSMENT, PROCEEDINGS THAT THE CASH FOUND DURING THE COURSE OF SEARCH BELONGED TO M/S RAJASTHAN MINING & ENGINEERING P. L TD. WHEREIN, THE ASSESSEE IS THE PROMOTER DIRECTOR AND WHOSE OFFICE I S THE SAME AS RESIDENTIAL PREMISES OF THE ASSESSEE. COPY OF CASH BOOK OF M/S RMEPL WHICH FORMED PART OF ITS AUDITED ACCOUNTS WAS SUBMITT ED BEFORE THE LOWER AUTHORITIES DURING THE COURSE OF ASSESSMENT / APPEL LATE PROCEEDINGS AND WHEREIN, THERE WAS SUFFICIENT CASH AVAILABILITY AS ON THE DATE OF SEARCH INDICATING THAT THE CASH SO FOUND RS. 19,00.000/- A S TABULATED ABOVE AND THE CASH OF RS. 19,00,000/- SEIZED BY THE DEPARTMEN T HAS BEEN OWNED BY M/S RMEPL AND HAS SHOWN THE SAME AS OTHER ADVANCES' . ALL THESE SET OF CIRCUMSTANCES LEAVE NO DOUBT AS TO THE FACT THAT TH E CASH SO FOUND DURING THE COURSE OF SEARCH BELONGED TO M/S RMEPL ONLY AND NOT TO ASSESSEE. THEREFORE, HE PRAYED TO DELETE THE ADDITION OF RS. 1 4,13,100/-. 5. ON THE OTHER HAND, THE LD CIT DR HAS SUBMITTED TH AT THE ADDITION MADE BY THE ASSESSING OFFICER WERE IN ACCORDANCE WITH LAW. HE FURTHER SUBMITTED THAT STORY COOKED UP BY THE ASSESSEE THA T THE COMPANY NAMELY M/S RAJASTHAN MINING AND ENGINEERING PVT. LTD. WAS H AVING CASH BALANCE AS ON DATE OF SEARCH IS PAID AFTERTHOUGHT STORY AS REFLECTED FROM THE STATEMENT RECORDED DURING THE COURSE OF SEARCH. MOR E PARTICULARLY QUESTION NO. 31 WHEREIN THE ASSESSEE HAD ADMITTED T HAT NO CASH BOOK IS ITA 06 & 08/JP/2014_ SANTOSH AHLUWALIA VS ACIT 12 BEING MAINTAINED BY THE COMPANY. IT WAS FURTHER SUBM ITTED THAT SINCE NO CASH BOOK WAS MAINTAINED BY THE ASSESSEE, AS ADMITTE D BY THE ASSESSEE IN RESPECT OF THE COMPANY, THEREFORE, THE EXPLANATI ON GIVEN BY THE ASSESSEE THAT THE CASH FOUND IN THE PREMISES OF THE ASSESSEE BELONGS TO THE COMPANY, IS NOT PLAUSIBLE EXPLANATION AND THERE FORE, THE ASSESSING OFFICER HAS RIGHTLY TREATED THE AMOUNT OF RS. 14.13 LACS AS UNEXPLAINED INCOME U/S 69A OF THE ACT. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD AS WELL AS GONE THROUGH THE ORDERS PASSED BY THE AUTHORITIES BELOW. IN OUR OPINION, THE AUTHORITIES BELOW HAVE FAILED TO APPLY THEIR MIND AND APPRECIATE THE EVIDENCE AVAILABLE WITH IT. PARAGRAPH NO. 2 OF 4.3 OF CIT(A)S ORDER CLEARL Y POINTS OUT THAT THERE IS A HARD DISK AND HARD DISK WAS FOUND DURING THE COURS E OF SEARCH AND ON THE BASIS OF HARD DISK, THE BROUGHT FORWARD CASH OF RS. 50,88,408/- WAS AVAILABLE ON 11/11/2009. IF THE CASH OF RS. 50,88,4 08/- WAS AVAILABLE ON THE DATE OF SEARCH, THAN THE WISDOM OF THE ASSESSEE TO KEEP THE CASH EITHER AT RESIDENCE OR IN THE LOCKER CANNOT BE DOUB TED . THE REVENUE AUTHORITY CANNOT CHALLENGE THE WISDOM OF KEEPING THE CASH EITHER AT RESIDENCE OR AT THE LOCKER AND THEREFORE, THE EXPLA NATION GIVEN BY THE ASSESSEE DURING THE COURSE OF SEARCH AND FURTHER SU PPORTED BY THE HARD ITA 06 & 08/JP/2014_ SANTOSH AHLUWALIA VS ACIT 13 DISK ON THE BASIS OF WHICH THE CASH BOOK WAS PREPARE D, WHICH IS AN ADMITTED PIECE OF EVIDENCE, COMPLETELY NEGATE THE C ASE OF THE REVENUE. WE HAVE NO DOUBT THAT THE ADDITION MADE BY THE AUTH ORITIES BELOW WERE WITHOUT ANY JURISDICTION AND WERE NOT IN ACCORDANCE WI TH LAW AND THE FACTS AND CIRCUMSTANCES OF THE CASE. ACCORDINGLY, THE ADD ITION OF RS. 14,13,100/- IN THE HANDS OF THE ASSESSEE IS DELETED . SIMILARLY IN RESPECT OF ITA NO. 06/JP/2013 WHERE THE ADDITION OF RS. 5,74,10 0/- WAS MADE IN THE HANDS OF ASSESSEE SMT. SANTOSH AHLUWALIA BEING CASH FOUND IN THE LOCKER, IN OUR OPINION IS ALSO REQUIRED TO BE DELETED AND A CCORDINGLY WE DELETE BY FOLLOWING REASONS AND THE RATIO LAID DOWN BY US IN I TA NO. 08/JP/2013. IN LIGHT OF ABOVE, BOTH THE APPEALS OF THE ASSESSEES A RE ALLOWED. 7. IN THE RESULT, THE BOTH THE APPEALS OF THE ASSES SEES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 13/06/2016. SD/- SD/- HKKXPAN YFYR DQEKJ (BHAGCHAND) (LALIET KUMAR) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ @ JAIPUR FNUKAD @ DATED:- 13 TH JUNE, 2016 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SMT. SANTOSH AHLUWALIA/SHRI MJS AHLUWALIA, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE A.C.I.T., CIRCLE-2, JAIPUR. 3. VK;DJ VK;QDR @ CIT ITA 06 & 08/JP/2014_ SANTOSH AHLUWALIA VS ACIT 14 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 06 AND 08/JP/2013) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR