Appeal Details
Counselvise Citation
64422714 RSA 2013
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 1 month(s) 4 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
09-12-2015
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
DB
Next Hearing Date
22-09-2015
Assessment Year
2006-2007
Appeal Filed On
04-11-2013
Judgement Text
SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER AND SHRI B.C. MEENA, HONBLE ACCOUNTANT MEMBER IT(SS)A NOS. 644/IND/2014 A.YS.2006-07 ASSTT.COMMR. OF INCOME TAX 1(2) BHOPAL ::: APPELLANT VS SHAMBHU NATH SHARMA BHOPAL PAN AAUPG 8862G ::: RESPONDENT IT(SS)A NOS. 627/IND/2014 A.YS.2006-07 SHAMBHU NATH SHARMA BHOPAL PAN AAUPG 8862G ::: APPELLANT VS ASSTT.COMMR. OF INCOME TAX 1(2) BHOPAL ::: RESPONDENT SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 2 ASSESSEE BY SHRI ASHISH GOYAL AND SHRI N.D. PATWA REVENUE BY SHRI R.A. VERMA DATE OF HEARING 8.12.2015 DATE OF PRONOUNCEMENT 9.12.2015 O R D E R PER BENCH 28. IT(SS)A NO.644/IND/2013 : A.Y. 2006-07 & IT(SS ) A NO.627/IND/2013 AND CROSS APPEALS EMANATE FROM THE ORDER OF THE LEARNED CIT(A), BILASPUR, CAMP AT HOSHANGABAD ROAD, BHOPAL, DATED 14.8.2013. 28. IN IT(SS) A NO. 644/IND/2013 OF THE REVENUE THE GROUNDS OF APPEAL READ AS UNDER :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN 1. DELETING THE ADDITION OF RS. 8,00,000/- ON ACCOUNT OF UNEXPLAINED UNSECURED LOAN MADE BY THE A.O. SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 3 2. DELETING THE ADDITION OF RS.13,00,000/- ON ACCOUNT OF UNEXPLAINED PAYMENTS AS PER SEIZED DOCUMENTS LPS-2 MADE BY THE A.O. 3. DELETING THE ADDITION OF RS.17,45,298/- ON ACCOUNT OF UNEXPLAINED INCOME ADMITTED AT THE TIME OF SEARCH. IT(SS)A NO.627/IND/2013 : A.Y. 2006-07 29 IN THIS APPEAL OF THE ASSESSEE THE GROUNDS OF APPEAL READ AS UNDER :- 01. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ADDITION OF RS.8,65,000/- TOWARDS SOCALLED DEEMED INCOME OUT OF THE CASH CREDIT OF RS.16,75,000/-. 02. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 4 THE ADDITION OF RS.1,25,000/- TOWARDS SOCALLED DEEMED INCOME TOWARDS THE FOLLOWING CASH CREDITS :- (I) SHRI AJAY NEMA RS.25,000 (II) SHRI ANIL SHARMA RS.30,000 (III)SHRI SATYANARAYAN SHARMA RS.75,000 03. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ADDITION OF RS.55,440/- BY NOT ACCEPTING THE AGRI. INCOME SHOWN BY THE APPELLANT AT RS.55,440/-. 04. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ADDITION OF RS.11,99,582/- OUT OF THE ADDITION OF RS.39,41,130/- MADE TOWARDS 1/4 TH SHARE OF DECLARED INCOME OF THE MALE MEMBERS OF THE SHARMA FAMILY. SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 5 05. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN MAKING THE FURTHER ADDITION OF RS.15,00,000/- TOWARDS THE PAYMENT SAID TO HAVE BEEN MADE TO KANHAIYALAL & ASHOK NANDA 06. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN MAKING FURTHER ADDITION OF RS.7,00,000/- AND RS.7,56,250/- TOWARDS UNEXPLAINED RECEIPTS FROM SALE OF PLOTS IN CHUNNA BHATTI. 07. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN MAKING THE ENHANCEMENT OF INCOME TOWARDS 1/4 TH SHARE OF THE DECLARED INCOME FROM RS.39,41,130/- TO RS.41,55,832/-. SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 6 30. GROUND NO. 1 IN BOTH THESE APPEALS RELATE TO PARTLY DELETING AND PARTLY SUSTAINING THE ADDITION OUT OF THE TOTAL ADDITION OF RS.16,75,000/- BY THE ASSESSING OFFICER. THE LEARNED CIT(A) DELETED THE PART ADDITION OF RS.8 LACS AN D SUSTAINED THE PART ADDITION OF RS. 8,75,000/-. DURING THE YEAR, UNDER CONSIDERATION, THE ASSESSEE HAS SHOWN UNSECURED LOAN/ADVANCE OF RS. 18 LACS I.E. FROM JAI KISH AN DUBEY RS. 16,75,000/-, AJAY NEMA RS. 25,000/- AND SH RI SATYA NARAYAN RS. 1 LAC. THE ASSESSING OFFICER NOTED THAT NO CONFIRMATION IS FILED AND IDENTITY OF THE CREDITOR WAS NOT ESTABLISHED. THE LEARNED CIT(A) GRANTED PART RELIEF AGAIN ST WHICH THE REVENUE IS IN APPEAL AND PARTLY SUSTAINED AGAINST WHICH THE ASSESSEE IS IN APPEAL BEFORE THE TRIBU NAL. 30. WE HAVE HEARD BOTH THE SIDES. THE ASSESSEE ENTERE D INTO AN AGREEMENT WITH SHRI J.K. DUBEY ON 29 TH JULY, 2005 TO SELL A PLOT OF LAND AND ALSO THE HOUSE CONSTRUCT TH EREON. THE TOTAL PRICE WAS FIXED AT RS.16,75,000/-. THERE IS AN SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 7 AGREEMENT WITH J.K. DUBEY WHICH IS PLACED AT PAGES 39 AND 40 OF THE PAPER BOOK. SHRI J.K. DUBEY WAS AN INCOM E TAX ASSESSEE, FILED THE RETURN OF INCOME COPY OF WHI CH IS PLACED AT PAGES 43 AND 44 OF THE PAPER BOOK. SHRI DUBEY ENTERED INTO AGREEMENT TO SELL HIS LAND LOCATED AT KHASR A NO. 90, 91/1, 1/7/2 TOTAL AREA 0.26 ACRES AT CHUNA BHATTI WITH M/SHARE KRISHNA COLONIERS ON 24.2.2004. SHRI DUB EY HAS ALSO CLAIMED EXEMPTION U/S 54F OF THE ACT ON SALE O F THIS LAND. HE HIMSELF HAS CONFIRMED THE TRANSACTION. T HE LEARNED CIT(A) ACCEPTED THE GENUINENESS OF TRANSACTION. HE HAS EXPLAINED THE SOURCE BY RECEIPT OF RS.18 LACS ON S ALE OF LAND LOCATED AT CHUNA BHATTI. THIS SALE OF LAND WAS DECLARED BY SHRI DUBEY IN HIS RETURN OF INCOME, BALANC E SHEET AND P&L ACCOUNT OF SHRI DUBEY FOR THE RELEVANT PERIOD. ALL THESE FACTS SHOW THAT THE TRANSACTION WITH SHRI DUBEY WAS GENUINE AND HE WAS HAVING CAPACITY TO GIVE MONEY TO THE ASSESSEE. THEREFORE, WE DO NOT FIND ME RIT IN SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 8 THE ORDER OF THE LEARNED CIT(A) IN PARTLY SUSTAINING T HE ADDITION. THERE IS NO EVIDENCE THAT SHRI DUBEY HAS INV ESTED THE AMOUNT ELSE-WHERE. THEREFORE, THE LEARNED CIT(A) SHOULD HAVE ALLOWED TOTAL RELIEF OF RS. 16,75,000/- IN STEAD OF RS. 8 LACS ONLY. WE ALLOW THIS GROUND OF THE ASSESS EES APPEAL. IN ABOVE FACTUAL POSITION, WE FIND NO MERIT IN T HE REVENUES APPEAL ON THIS ISSUE. WE DISMISS THE SAME. 31. IN GROUND NO. 2 OF THE ASSESSEES APPEAL, THE ISSU E INVOLVED IS SUSTAINING THE ADDITION OF CASH CREDITS O F RS.1,25,000/-. IT IS SUBMITTED THAT ON THE REQUEST OF THE ASSESSEE, SHRI AJAY NEMA, SATYA NARAYAN SHARMA AND ANIL SHARMA PAID THESE AMOUNTS TOWARDS DEVELOPMENT CHARGES FOR DEVELOPMENT OF THE LAND SITUATED AT GANESH NAGAR COLONY WHICH WAS SOLD TO GANESH DUBEY FOR RS. 16,75,000/-. THE LEARNED CIT(A) CONFIRMED THE ADDITIO N. THE RELEVANT PORTION OF THE ORDER OF THE LEARNED CIT (A) IS REPRODUCED HEREUNDER :- SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 9 IN THE CASE OF SHRI AJAY KUMAR NEMA, THE SOURCE OF THE LENDER IS SAID TO BE SALARY AND BUSINESS, BUT H IS INCOME OF THE YEAR AND COPY OF THE INCOME-TAX RETUR N WITH P&L ACCOUNT AND BALANCE SHEET WERE NOT FURNISHED. O N VERIFICATION OF THE BANK ACCOUNT BEARING NO.6680 AT PUNJAB & SIND BANK, SHAHPURA OF THE LENDER, I FIND THAT TH E OPENING CREDIT BALANCE OF THE ACCOUNT IS JUST RS.77 2/-. ON 10.09.2005 AND ON 12.09.2005, CASH OF RS.45,000/- & RS.48,000/- WAS DEPOSITED TO BE PAID IN CASH. TO ASHWINI KUMAR SHARMA, DIRECTOR OF HARE KRISHNA COLONIZERS. THEREAFTER, RS.75,OOO/- WAS CREDITED TO THE LENDER' S BANK ACCOUNT ON 23.09.2005 BY WAY OF TRANSFER FROM SAVIN GS BANK ACCOUNT NO.6142 OF PUNJAB & SIND BANK, SHAHPUR A. IT IS THE SAVINGS BANK ACCOUNT OF SHRI ASHWINI KUMA R SHARMA, DIRECTOR OF HARE KRISHNA COLONIZER PVT. LTD. THE LENDER HAS ISSUED THREE CHE QUES ON 23.09.2005. EACH OF RS.25,OOO/- AND WERE CREDITED T O THE SAVINGS BANK ACCOUNT NO.6722 AT PUNJAB & SIND BANK, SHAHPURA. THE ABOVE BANK ACCOUNT HAS BEEN OPENED IN SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 10 THE NAME OF AYUKT, NAGAR' NIGAM, BHOPAL AND SHRI RA JESH SHRIVASTAVA, BUT NOT THE BANK ACCOUNT OF THE APPELL ANT. THE CLOSING BALANCE IN THE ACCOUNT WAS JUST RS 3,775/- WITH NO OTHER TRANSACTION IN THE ACCOUNT. THUS, THE BANK ACCOUNT OF THE LENDER WAS UTILIZED FOR CHANNELIZING CASH OF 3 RD PARTY(S) AND ABOVE ALL, THE AMOUNT OF RS.25,OOO/- WAS NOT GIVE N BY THE LENDER TO THE APPELLANT BUT IT WAS GIVEN F OR CREDIT TO THE ACCOUNT OF AS MENTIONED ABOVE. SIMILARLY, SHRI SATYA NARYAN NEMA HAS OPE NED HIS BANK ACCOUNT AT PUNJAB & SIND BANK. SHAHPURA WITH OPENING BALANCE OF RS.1.083/-. ON SAME DATE I.E. ON 10.09.2005 AND 12.09.2005 CASH OF RS.45,000/- & RS.48,000/- WERE DEPOSITED IN THE ACCOUNT AND ISSUED FOUR CHEQUES, TWO CHEQUES OF RS.25,OOO/- EACH AND TWO CHEQUES OF RS.20,000/- E ACH FOR TRANSFER TO THE CREDIT OF SB ACCOUNT OF 6722. SHRI ANIL SHARMA HAS BANK ACCOUNT IN SAME BANK WITH OPENING BALANCE OF RS.5.306/-. SIMILAR CASH AM OUNT OF RS.45,000/- RS.48,000/- WERE DEPOSITED IN THE BANK SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 11 ACCOUNT ON 10.09.2005 & 12.09.2005 AND, THEREAFTER, HE TRANSFERRED RS.30,OOO/- ON 15.09.2005 TO THE SAVINGS BANK ACCOUNT NO.6722 AND FURTHER CASH OF RS.8,000/- WAS DEPOSITED ON 23.09.2005 IN ORDER TO ISSUE A CHEQUE OF RS.75.000/- ON 23.09.2005 FOR CREDIT TO THE ACCOUNT OF SHRI AJAY KUMAR NEMA. THE LENDER DISCUSSED ABOVE. IN THE CASE OF SHRI ASHWANINATH SHARMA FOR A.Y.2006-07 THE ASSESSEE HAS CLAIMED TO HAVE TAKEN RS 20, 000/- AS LOAN IN CHEQUE ON 1309.2005 FROM SHRI RAJMAL MEENA. SHRI RAJRNAI UEENA HAS BANK ACCOUNT IN SAME BANK AT PUNJAB & SIND BANK, SHAHPURA. THE OPENING BALANCE IN THE BANK ACC OUNT WAS JUST RS.3,666/- AND AND ON 10 TH & 12 TH OF SEPTEMBER, 2005 CASH OF RS.45,OOO/- & RS.48,000/- WAS DEPOSITED AND, THEREAFTER, CHEQUES OF RS.25,000/-, RS.20,000/-, RS.20,000/- & RS 25,000/- WERE ISSUED FOR TRANSFER TO SB ACCOUNT NO.6722 OF P UNJAB & SIND BANK. SHAHPURA STANDING IN THE NAME OF AYUKT , NAGAR NIGAM, BHOPAL AND SHRI RAJESH SHRIVASTAVA SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 12 THE CIT(A)-1, BHOPAL VIDE HIS ORDER IN ITA NO.535/07 -08 DATED 26.03.2013 CONFIRMED THE ADDITION MADE U/S 68 FOR THE FAILURE OF THE ASSESSEE TO EXPLAIN THE CREDITWO RTHINESS OF SHRI RAJMAL MEENA TO DEPOSIT THE CASH AMOUNT IN THE BANK IN ORDER TO GIVE CHEQUE TO THE APPELLANT AND H IS FAMILY MEMBERS. IT IS SEEN THAT CASH OF RS.45,OOO/- & RS.48,000/- WERE DEPOSITED IN ALL THE ABOVE BANK ACCOUNTS ON 10 TH & 12'H OF SEPTEMBER, 2005 AND THE APPELLANT HAS NOT PROVED CREDITWORTHINESS OF ANY OF THE LENDER TO DEPOSIT CA SH IN RESPECTIVE BANK ACCOUNTS IN ORDER TO ISSUE CHEQUES IN FAVOUR OF THE APPELLANT. THE LD AR RELIED HEAVILY ON THE AFFIDAVIT OF THE LENDERS FILED BY TH EM AROUND AFTER TWO YEARS OF COMPLETION OF ASSESSMENT. BUT TH E DEPONENTS WERE NOT PRODUCED FOR CROSS EXAMINATION O F THEIR STATEMENTS AND, THUS, ON THE BASIS OF THE ABO VE MATERIAL ON RECORD, I FIND THAT STATEMENTS ON AFFID AVIT ARE NOT RELIABLE. I DON'T FIND ANY IMPORTANCE IN ADDITI ONAL EVIDENCE FOR ADMISSION AT THE APPELLATE STAGE, VOID OF ANY SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 13 SUBSTANTIAL CAUSE FOR NOT PRODUCING THE SAME AT INI TIAL STAGE. FROM THE ABOVE, IT IS CRYSTAL CLEAR THAT THE BANK A CCOUNT OF THE ABOVE LENDERS WERE UTILIZED FOR CHANNELIZING UNACCOUNTED CASH AND THE ALLEGED LOANS WERE NOT GIV EN TO THE APPELLANT SO THAT THE LIABILITIES OF REPAYMENT CAN BE SHOWN IN THE BOOKS OF ACCOUNT OF THE APPELLANT. IN THE BACKDROPS OF THE ABOVE FACTUAL MATRIX, IT IS HELD T HAT THE APPELLANT HAS FAILED TO DEMONSTRATE THE CORRECTNESS AND GENUINENESS OF THE UNSECURED LOANS AGAINST THE ABOV E THREE LENDERS AND HENCE, ADDITION OF RS.1,25,000/- AS DEEMED INCOME OF THE APPELLANT IS, CONFIRMED. 32. LEARNED COUNSEL FOR THE ASSESSEE FAILED TO CONTROV ERT THE FINDINGS RECORDED BY THE LEARNED CIT(A). 32. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE FIN D NO MERIT IN THIS GROUND OF THE ASSESSEES APPEAL. 33. GROUND NO. 3 IN ASSESSEES APPEAL RELATES TO AGRICULTURAL INCOME OF RS.55,450/-. THE ASSESSEE WAS SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 14 HAVING AGRICULTURAL LAND OF 5.05 ACRE AT BAIRAGARH CHICHLI. THE ASSESSEE CLAIMED THAT THIS LAND HAS BEEN LET OUT FOR RS.1,10,000/- FOR TWO YEARS AND THE ANNUAL RENT WAS RS. 55,000/- WHICH GIVES RS.11,000/- PER ACRE. THE LEARNE D CIT(A) ACCEPTED RS.6,000/- PER ACRE. WE HAVE ALREADY ACCEPTED THE INCOME FROM AGRICULTURAL LAND @ RS.11,000/ - PER ACRE IN ASSESSEES CASE IN EARLIER YEARS. THEREFORE, FOR THIS YEAR ALSO WE HOLD THAT THE ASSESSEES CLAIM OF AGRICULTURAL INCOME AT RS. 11,000/- PER ACRE FOR TWO YE ARS FROM 5.05 ACRES OF LAND IS JUSTIFIED. WE ALLOW THIS G ROUND OF ASSESSEES APPEAL. 34. GROUND NOS. 4 TO 7 OF THE ASSESSEES APPEAL AND GROUND NO. 3 OF THE REVENUES APPEAL RELATE TO SURREND ER MADE DURING THE SEARCH AND SEIZURE OPERATION CARRIED OUT AT THE PREMISES OF THE ASSESSEE. THE STATEMENT OF SHRI RAMNATH SHARMA ONE OF THE SAME ASSESSEES WAS RECORDED ON 16.9.2005 AND 17.9.2005. SINCE NO BOOKS OF ACCOUNT S SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 15 WERE MAINTAINED AND NO RETURN OF INCOME WAS FILED, DOCUMENTS FOUND DURING THE SEARCH COULD NOT BE EXPLAI NED AND SHRI RAMNATH SHARMA MADE A SURRENDER OF RS. 1.83 CRORE TOWARDS VARIOUS TRANSACTIONS FOR INVESTMENT IN L AND AND OTHER CASH PAYMENTS IN THE INDIVIDUAL CASES. SUBSEQUENT TO THE SEARCH, THE FAMILY MEMBERS PREPARED RECEIPT AND PAYMENT ACCOUNT CONSIDERING THE VARIOUS DOCUMENTS DURING THE COURSE OF SEARCH. THESE STATEMEN TS OF RECEIPT AND PAYMENTS WERE PREPARED YEARWISE AND ASSESSEEWISE. THE INCOME AND EXPENDITURE ACCOUNTS WE RE ALSO PREPARED ON THE BASIS OF THESE DOCUMENTS. THE COMPUTATION OF INCOME WAS PREPARED AND WHEREVER THERE WAS A SHORT FALL IN INCOME TO EXPLAIN THE INVESTMENT, T HE DIFFERENCE WAS OFFERED AS MISCELLANEOUS INCOME OR INCO ME FROM OTHER SOURCES AS UNDISCLOSED INCOME IN THE RESP ECTIVE RETURNS OF INCOME. THE DETAILS OF INCOME DECLARED BY SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 16 DIFFERENT FAMILY MEMBERS OF THE ASSESSEE FOR THE BLOC K PERIOD 1999-00 TO 2005-06 ARE AS UNDER :- SMT. RANJANA SHARMA S.NO. F.Y. PAGE NO. AMOUNT TOTAL AMOUNT 1 2001 - 02 34D 55000 2 2002 - 03 34E 130000 3 2003 - 04 34F 15000 4 2005 - 06 34H 150000 350000 SMT. RADHA SHARMA S.NO. F.Y. PAGE NO. AMOUNT TOTAL AMOUNT 1 1999 - 2000 32A 60000 2 2000 - 01 32B 45000 3 2001 - 02 32C 375000 4 2005 - 06 34A 150000 630 000 SMT. KUSUM SHARMA S.NO. F.Y. PAGE NO. AMOUNT TOTAL AMOUNT 1 1999 - 2000 29G 95000 2 2000 - 01 29H 130000 3 2001 - 02 29I 100000 4 2002 - 03 29J 161643 751643 5 2005 - 06 32 265000 KRISHNA SHARMA S.NO. F.Y. PAGE NO. AMOUNT TOTAL AMOUNT 1 1999 - 2000 34B 35000 35000 SH. ASHWINI NATH SHARMA S.NO. F.Y. PAGE NO. AMOUNT TOTAL AMOUNT 1 1999 - 2000 20A 50000 2 2000 - 01 20B 40000 3 2003 - 04 21 47250 SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 17 4 2005 - 06 23 181550 3 188 00 SH. SHYAM NATH SHARMA S.NO. F.Y. PAGE NO. AMOUNT TOTAL AMOUNT 1 1999 - 2000 27B 75000 2 2005 - 06 29E 53972 128972 SH. RAM NATH SHARMA S.NO. F.Y. PAGE NO. AMOUNT TOTAL AMOUNT 1 2002 - 03 23A 80000 2 2003 - 04 24 52480 3 2005 - 06 27A 153584 286064 SH. S.N. SHARMA S.NO. F.Y. PAGE NO. AMOUNT TOTAL AMOUNT 1 2004 - 05 19 35000 35000 2535479 35. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THESE RECEIPTS AND PAYMENTS HAVE BEEN ACCEPTED BY THE REVENUE DURING THE ASSESSMENT PROCEEDINGS AND ALSO DURING THE APPELLATE PROCEEDINGS AND WHEREVER DISCREPANCIES WERE FOUND, THE SAME WAS ADDED TO THE INCOME. AS SUCH, THE GENUINENESS WAS NEVER DOUBTED. THE DETAILS OF VARIOUS INVESTMENTS AND PAYMENTS TO VARIOUS SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 18 PERSONS ON THE BASIS OF WHICH THE ADDITION WAS MADE AND SUSTAINED ARE AS UNDER :- S. NO. HEAD SURRENDE R AMOUNT LD AO ADDED LD CIT(A) CONFIRMED SU BMISSIO NS 1. INVESTMENT IN 72 PLOTS (CORRECT 71 PLOTS) IN GANESH NAGAR BY FAMILY, AS PER VARIOUS REGISTRIES FOUND 75,00,00 0 [PB 79 QUE 7 AND PB 77 QUE 5] 75,00,00 0 (25,35,47 9) 49,64,52 1 LD AO NOTED THAT RS. 25,35,47 9 WAS ALREADY INCLUDED BY ASSESSEE IN MISC. INCOME FOR VARIOUS YEARS BY THE FAMILY MEMBERS. BALANCE RS. 49,64,52 1 WAS ADDED. THIS WAS ADDED 75,00,000 (27,01,672) 47,98,328 LD CIT(A) STATED THAT ADDITION OF RS. 27,01,672 MADE IN HANDS OF SMT. RADHA SHARMA AND SMT. RANJANA SHARMA. CONFIRMED BY LD CIT(A). IT IS SUBMITTED THAT THE ASSESSEE AND FAMILY MEMBERS MADE INVESTMENT IN 71 PLOTS AT CHUNA BHATTI. LIST OF PLOTS IS GIVEN AT PB 133- 138. THESE PURCHASES ARE RECORDED IN THE RECEIPTS AND PAYMENTS ACCOUNT OF THE FAMILY MEMBERS, IN VARIOUS YEARS. IN THE CHART PB 133- SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 19 1/4 IN HANDS OF ALL FOUR MALE MEMBERS RAMNATH, ASHWINI NATH, SHAMBHU NATH, SHYAM NATH 138, THE DETAILS OF PAYMENTS MADE BY RESPECTIVE FAMILY MEMBERS IS GIVEN. ALL THESE PAYMENTS ARE REFLECTED IN THE CASH FLOW/ RECEIPT AND PAYMENTS ACCOUNT OF VARIOUS FAMILY MEMBERS FOR RESPECTIVE YEARS. THE SOURCE OF THE PAYMENTS ARE THEREFORE EXPLAINED, BEING A PART OF THE RECEIPT AND PAYMENT ACCOUNT. 2. PAYMENT TO VARIOUS SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 20 PE RSONS ( A ) KANHAIYALAL GYANCHANDA NI BY S.N. SHARMA [LPS 5 PG. 13 PB 159] 5,00,000 [PB 80 QUE 8] 5,00,000 1/4 ADDED BY LD AO IN HANDS OF ALL FOUR MALE MEMBERS. CONFIRMED FULL IN HANDS OF SHYAM- NATH SHARMA. DELETED IN HANDS OF OTHERS S.N. SHARMA GAVE ADVANCE FOR PURCHASE OF LAND. REFLECTED IN RECEIPT AND PAYMENT ACCOUNT (PB 185) IN F.Y. 2004- 05. RETURNED BY HIM IN F.Y. 2005- 06 (PB 19). SINCE IT FORMS PART OF RECEIPT AND PAYMENT ACCOUNT, THE SOURCE OF SAME IS EXPLAINED. ( B ASHOK NANDA BY S.N. SHARMA [LPS 5 PG. 11 PB 161- 163] 10,00,00 0 [PB 80 QUE 8] 10,00,00 0 1/4 ADDED BY LD AO IN HANDS OF ALL FOUR MALE MEMBERS. CONFIRMED IN HANDS OF S.N. SHARMA. DELETED IN HANDS OF OTHERS S.N. SHARMA GAVE ADVANCE FOR PURCHASE OF LAND. REFLECTED IN RECEIPTS AND SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 21 PAYMENTS ACCOUNT FOR F.Y. 2004-05. PB 185. SINCE IT FORMS A PART OF RECEIPT AND PAYMENT ACCOUNT, THE SOURCE OF SAME IS EXPLAINED. ( C ) THADARAM GRAH NIRMAN SANSTHA [OF KANHAIYALAL GYANCHANDA NI] BY ASHWINI NATH SHARMA [LPS 5 PG. 7- 8 PB 164- 165] 5,00,000 [PB 80 QUE 8] 5,00,000 1/4 ADDED BY LD AO IN HANDS OF ALL FOUR MALE MEMBERS. CONFIRMED AS SUCH. DELETED AS COVERED BY ANOTHER ADDITION IN HANDS OF ASHWINI NATH SHARMA AS UNEXPLAINE D LAND ADVANCES (A) ASHWINI NATH SHARMA GAVE ADVANCE FOR PURCHASE OF LAND. REFLECTED IN HIS RECEIPTS AND PAYMENT ACCOUNT FOR F.Y. 2005-06. [PB 169 OF HIS PAPER BOOK FOR A.Y. 2005- 06]. RETURNED IN SAME F.Y. SINCE SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 22 IT FORMS PART OF RECEIPT AND PAYMENT ACCOUNT, THE SOURCE OF SAME IS EXPLAINED. (B) IT IS FURTHER SUBMITTED THAT THE LD AO ADDED BOTH RECEIPT OF RS. 5 LACS AND PAYMENT OF RS. 5 LACS. THE EFFECT OF THIS RECEIPT AND PAYMENT IS NIL. THERE IS NO UNRECORDE D INCOME OR EXPENSE. (C) CONFIRMATI ON OF KANHAIYAL AL IS AT PB 166. 3. LPS - 2 58,08,00 58,08,00 LD CIT(A) (A) LIST OF SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 23 UNEXPLAINED CASH PAYMENTS [PB 170-171] 0 [PB 80 QUE 9] 0 1/4 ADDED BY LD AO IN HANDS OF ALL FOUR MALE MEMBERS. MADE ADDITION OF SPECIFIC ENTRIES IN INDIVIDUAL HANDS. BALANCE ENTRY NO. 32 IS HAVING NO NAME OR DATE. 1/4 ADDED BY LD CIT(A) OF SAME IN ALL FOUR MALE MEMBERS. EACH ENTRY RELATING TO EACH PERSON OF FAMILY IS GIVEN BY LD CIT(A) IN CASE OF ASHIWINI NATH SHARMA IN AY 2006- 07 PG. 22- 23. (B) ALL PAYMENTS ARE REFLECTED AS A PAYMENT IN RECEIPTS AND PAYMENTS ACCOUNT OF EACH PERSON. SINCE IT FORMS PART OF RECEIPT AND PAYMENT ACCOUNT, SOURCE OF SAME IS EXPLAINED. CHUNA BHATTI PLOT SALE 30,00 ,000 [PB 80 QUE 10] 30,00,000 1/4 ADDED BY LD AO IN DELETED. RELATES TO M/S. ON BASIS OF PB 94-99, FOUND SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 24 BY HARE KRISHNA COLONISERS AND SHYAM NATH SHARMA [PB 94-99] HANDS OF ALL FOUR MALE MEMBERS. HARE KRISHNA COLONISER S PVT LTD. WHERE ADDITION HAS BEEN CONFIRME D BY HONBLE ITAT. MAKING ADDITION HERE WILL AMOUNT TO DOUBLE ADDITION. DURING SEARCH, IT WAS CONTENDED BY DEPARTMENT THAT M/S. HARE KRISHNA COLONISERS P LTD AND SHYAMNATH SHARMA RECEIVED A SUM OF RS. 71 LACS AGAINST SALE OF LAND, FOR RS. 142 LACS. OF THIS RS. 41 LACS WAS BY CHEQUE AND BALANCE RS. 30 LACS WAS BY CASH. RAMNATH IN HIS STATEMENT [PB 80 QUE 10] ACCEPTED THAT RS. 30 LACS RECEIVED WAS UNACCOUNTE D AND SHALL BE OFFERED. LD AO IN HARE SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 25 KRISHNA COLONISERS ADDED 3/4 SHARE OF RS. 142 LACS [I.E. RS. 107 LACS]. AFTER GIVING CREDIT OF COST OF ACQUISITION OF RS. 32 LACS ADDITION OF RS. 75.02 LACS WAS CONFIRMED BY HONBLE ITAT. [PB 128-129]. BALANCE 1/4 RELATES TO SHYAM NATH SHARMA, WHICH MAY BE EXPLAINED IN HIS CASE. IN ANY CASE, THIS PAPER IS NOT RELEVANT TO SHAMBHU NATH, ASHWINI NATH OR RAM NATH, NO ADDITION IN OUR HANDS IS CALLED FOR. SURRENDERE TOTAL RS. SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 26 D 1,83,08,00 0 1,57,72,541 ADDED. 1/4 IN HANDS OF FOUR MALE MEMBERS BY LD AO. THE ASSESSING OFFICER HELD THAT DURING THE COURSE O F SEARCH SHRI RAMNATH SHARMA THE SON OF ASSESSEE WAS EXAMINED ON 16.9.2005 AND 17.09.2005.HE WAS CONFRONTED WITH THE INCREMENTING DOCUMENTS. SHRI RAMNATH SHARMA OFFERED FOR TAXATION TOTAL INCOME OF ON ACCOUNT OF UNEXPLAINED INVESTMENT ON VARIOUS PLOTS ACQUIRED BY THE FAMILY MEMBERS. TH E DETAILS RECORDED BY THE ASSESSING OFFICER ARE AS UNDER :- 1. INCOME OF RS. 7500000/- WERE OFFERED AS UNACCOU NTED INCOME ON ACCOUNT OF UNEXPLAINED STATEMENT IN 72 ( CORRECT 71) PLOTS ACQUIRED BY THE FAMILY IN GANESH NAGAR, O UT OF THEIR UNDISCLOSED SOURCES OF INCOME. 2. INCOME OF RS. 2000000/- WAS OFFERED ON ACCOUNT O F UNEXPLAINED PAYMENT MADE TO SHRI KANHIYALAL GANCHA NDAI, SHRI ASHOK NANDA AND M/S THADA RAM GRAH SHAKRI SANSTHA. INCOME OF RS. 58.08 LAC WAS OFFERED ON ACC OUNT OF UNEXPLAINED CASH PAYMENTS AS EVIDENT BY THE VARIOU S LOSES SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 27 PAPER SEIZED AS LPS-2. 3. INCOME OF RS. 3000000/- WAS OFFERED ON ACCOUNT O F UNEXPLAINED/ UNACCOUNTED RECEIPTS FROM SALE OF PLOT AT CHUNNA BHATI TO SHRI PRAMJEET SINGH CHANDOK. AS PER THE ASSESSING OFFICER, INCOME TO THE EXTENT OF RS. 15764521/- (RS. 18300000 - RS. 2535479/-) REMAIN UN REPORTED AS STATED IN HIS STATEMENT RECORDED ON 16.09.2005, U/S 132 OF THE I.T. ACT. THEREFORE, THE INCOME OF RS. 15764521/- WAS AD DED IN THE HAND OF THE FAMILY MEMBERS. AS IN THIS GROUP SHRI S .N. SHARMA, RAM NATH SHARMA, SHYAM NATH SHARMA AND SHRI ASHWANI SHARMA ARE THE MAIN ACTIVE MEMBERS WHO ARE TRANSACTING ALL THE BUSINESS PROPERTY DEALS, THIS INCOME IS EQUALLY DIVIDED AMON G ALL THESE FOUR PERSON. THE SHARE OF EACH PERSON COMES TO RS. 39411 30, WHICH WAS TO BE ADDED AS INCOME FROM UNDISCLOSED INCOME U/S 6 9 OF THE IT ACT, IN THE A.Y. 2006-07. 36. THE LEARNED CIT(A) HAS DECIDED THE ISSUE AS UNDE R :- THE SUBMISSION OF THE LD.AR ON THIS COUNT IS SAME FOR THE APPELLANT AND FOR OTHER ASSESSEES SHRI RAMNATH SHA RMA, SHRI SHYAMNATH SHARMA & SHRI ASHWANI SHARMA AND ON THE SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 28 BASIS OF THE SUBMISSION, THE CIT(A)-1, BHOPAL IN TH E CASE OF SHRI ASHWININATH SHARMA FOR A.Y.2006-07 AND IN ITA NO.535/07-08 DATED 24.03.2013 HAS DECIDED THUS. 'I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE APP ELLANT AND FACTS OF THE CASE. AS REGARDS PARA (1) OF THE A SSESSMENT ORDER, IT IS AN ADMITTED FACT THAT DURING THE COURS E OF SEARCH AND SEIZURE OPERATIONS, CERTAIN INCRIMINATING DOCUM ENTS WERE FOUND SHOWING UNEXPLAINED INVESTMENT IN THE PLOTS O F GANESH NAGAR, BHOPAL BY THE FAMILY MEMBERS OF THE APPELLANT. SHRI RAM NATH SHARMA IN HIS STATEMENTS R ECORDED U/S 132(4) DATED 16.09.2005 & 17.09.2005 ADMITTED THAT THE FAMILY MEMBERS HAD MADE UNEXPLAINED INVESTMENT IN T HE PURCHASE OF PLOTS IN GANESH NAGAR AND SURRENDERED A N' AMOUNT OF RS.75,00,0001- ON ACCOUNT OF SUCH UNEXPLA INED INVESTMENT AND ASSURED PAYMENT OF TAX THEREON. THUS , THERE WAS UNEXPLAINED INVESTMENT IN THE PURCHASE OF PLOTS OF GANESH NAGAR, BHOPAL OF RS. 75,00,0001- AT LEAST BY THE FAMILY MEMBERS OF THE APPELLANT AS ADMITTED IN THE STATEMENTS RECORDED ULS 132(4). HOWEVER, IT IS NOTI CED, AS ALSO SUBMITTED BY THE APPELLANT THAT ADDITION OF RS . 27, 01, SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 29 6721-WERE MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT IN THE PURCHASE OF PLOTS OF GANESH NAGAR, BHOPAL IN THE HA NDS OF SMT. RANJANA SHARMA AND SMT. RADHA SHARMA IN A. YS. 2004-05 & 2005-06. IT IS ALSO NOTICED THAT THE ADDITIONS MADE IN THE HANDS OF SMT RANJANA SHARMA AND SMT. RA DHA SHARMA WERE CONFIRMED BY THE CIT(A). ACCORDINGLY, T HE SUBMISSION OF THE APPEL/ANT IS ACCEPTABLE THAT THE AMOUNT OF ADDITIONS OF RS.27,01,6721- MADE IN THE HANDS OF SMT.RANJANA SHARMA AND SMT. RADHA SHARMA IN THEIR ASSESSMENTS FOR A. YS. 2004-05 & 2005-06 SHOULD BE REDUCED FROM THE TOTAL UNEXPLAINED INVESTMENT OF RS . 75,00,0001- ADMITTED AND SURTENOERED 6Y SHRI RAM NATH SHARMA IN HIS STATEMENT ULS 132(4) ON BEHALF OF THE FOUR MALE MEMBERS OF THE FAMILY. ACCORDINGLY, THE BALANC E AMOUNT OF UNEXPLAINED INVESTMENT IN ACQUISITION OF SUCH PL OTS WORKS OUT TO RS. 47,98,3281- (RS. 75,00,000- RS.27, 01, 672). THE APPELLANT'S 1/4TH SHARE, THUS, WORKS OUT AT RS.11,99,582/ (1/4 FH OF RS.47,98,328). ACCORDINGLY, THE AO IS DIRECTED TO MAKE AN ADDITION OF RS.11,99, 582/- IN THE HANDS OF THE APPELLANT ON THIS ACCOUNT. SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 30 AS REGARDS PARA 2 RELATING TO RS.20, 00,000/- , IT IS NOTICED THAT THIS AMOUNT PERTAINS TO THE PAYMENTS MADE BY S HRI SHAMBHU NATH SHARMA OF RS.15,OO,OOO/- I.E. RS 5,00,000/- PAID ON 29.03.2005 AND RS.10,OO,OOO/ PAID ON 08.06.2004. THEREFORE, THESE AMOUNTS HAVE TO BE CONSIDERED IN THE HANDS OF SH. SHAMBHU NATH SHARMA AND NO ADDITION CAN BE MADE IN THE HANDS OF APPELLANT I N RESPECT OF THESE PAYMENTS. THE BALANCE AMOUNT OF RS . 5,00,000/- WAS RELATED TO PAYMENT MADE BY, THE APPE LLANT TO SHRI KANAIYALAL GYANCHANDANI AND AS SUBMITTED BY TH E APPELLANT, THE AO HAD MADE A SEPARATE ADDITION ALSO ON ACCOUNT OF THIS TRANSACTION, INCLUDED IN THE ADDITI ON OF RS.8,21,2611- MADE AS UNEXPLAINED LAND ADVANCES. IT MAY BE NOTED THAT THE ADDITION OF THIS AMOUNT OF RS. 5, 00,000 HAS BEEN CONFIRMED IN GROUND NO 4 DISCUSSED HEREINABOVE . THEREFORE, NO SEPERETE ADDITION IS REQUIRED TO BE M ADE, OTHERWISE IT WOULD AMOUNT TO DOUBLE ADDITION. HENCE , NO ADDITION IN THE HANDS OF THE APPELLANT WAS CALLED F OR IN RESPECT OF THE AMOUNT OF RS. 20, 00, 000/- DISCUSSED IN THE SAID PARA 2 OF THE ASSESSMENT ORDER. SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 31 IN REGARD TO AMOUNT OF RS. 58.08 LACS, DISCUSSED IN PARA 3 RELATED 10 TRANSACTIONS REFLECTED IN LOOSE PAPERS SEIZED AS LPS-2, IT IS NOTICED, THAT THERE ARE CLEAR CUT NARR ATIONS ON THESE LOOSE PAPERS ABOUT THE PERSONS TO WHOM THE TRANSACTIONS RECORDED ON THESE PAPERS BELONG. AS SU BMITTED BY THE APPELLANT. IN THE DETAILED CHART MENTIONED HEREINABOVE, THE TRANSACTION OF RS.7,OO,OOO/- BELON GED TO SHRI SHAMBHUNATH SHARMA, OF RS.3, 74, 000/- TO SHRI RAM NATH SHARMA AND OF RS.19, 00, 000/- TO M/S HARE KRISHNA COLONIZERS PVT. LTD. BHOPAL AND THEREFORE, THESE UE NSECTIONS CANNOT BE CONSIDERED FOR THE PURPOSE OF MAKING ADDI TION IN THE HANDS OF THE APPELLANT. THE TRANSACTIONS RECORD ED RELATING TO THE APPELLANT, SHRI ASHWINI NATH SHARMA ON THESE LOOSE PAPERS OF LPS-2 WERE OF RS. 6,50,000/- FOR A. Y. 2005- 06 AND RS. 2,40,000/- FOR A.Y. 2006-07. ACCORDINGLY THE AMOUNT OF 6,50,000/- HAS TO BE CONSIDERED IN HANDS OF THE APPELLANT IN A.Y. 2005-06 ONLY. THEREFORE, AN ADDIT ION RS. 2, 40, 000/- ONLY IS TO BE MADE IN HANDS OF THE APPELL ANT FOR THE UNEXPLAINED INVESTMENT IN CASH RECORDED ON THESE LO OSE PAPERS IN A.Y. 2006-07 UNDER CONSIDERATION. ACCORDI NGLY, THE SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 32 AO IS DIRECTED TO MAKE ADDITION OF RS. 2,40,000/- O N THIS ACCOUNT. APART FROM THE ABOVE, TRANSACTIONS RECORDE D ON LOOSE PAPER ON LOOSE PAPER NO. 32 OF LPS-2 IS OF RS. 30, 25, 000/- FOR WHICH THE APPELLANT HAD NOT FURNISHED ANY COGENT EXPLANATION. THE APPELLANT SUBMITTED THAT TH IS TRANSACTION MAY PERTAIN TO M/S. HARE KRISHNA COLONI ZERS PVT. LTD. RELATING TO THE SALE OF LAND AT CHUNA BHATTI F OR WHICH ADDITION HAD ALREADY BEEN MADE IN THE HANDS OF MIS HARE KRISHNA COLONISERS PVT. LTD. BUT IT WAS NOTICED THA T THE TRANSACTION IN RESPECT OF RECEIPT OF CASH OF RS 30, 00,000/- PERTAINING TO M/S HARE KRISHNA COLONISERS PVT. LTD. WAS RECORDED ON PAGE 6 OF LPS-1 AND, THEREFORE, THE TRANSACTION RECORDED ON PAGE NO32 OF LPS-2 AMOUNTING TO RS.30,25,000/- WAS A DIFFERENT TRANSACTION. SINCE, THE APPELLANT FADED TO SATISFACTORILY EXPLAIN THE TRANS ACTION OF RS. 30, 25, 000/- RECORDED ON THIS PAGE. THIS AMOUNT OF RS.30, 25J)(W- IS TO BE CONSIDERED AS UNEXPLAINED INCOME O F ALL THE FOUR FAMILY MEMBERS AS WAS ADMITTED SHRI RAM NATH SHARMA IN HIS STATEMENTS U/S 132(4). THE APPELLANT S 1/4 TH SHARE WORKS OUT AT RS. 7,56,250/- (1/4 TH OF RS. 30,25,000/-) SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 33 ACCORDINGLY, THE AO IS DIRECTED TO MAKE AN ADDITION OF RS. 9,96,250/- ON THIS ACCOUNT. AS REGARDS PARA 4 INVOLVING AM AMOUNT OF RS. 30,00, 000/- IT WAS NOTICED THAT THIS AMOUNT RELATING TO UNACCOUNTE D RECEIPTS ON SALE OF PLOT AT CHUNA BHATTI TO SHRI PA RAMJEET SINGH CHANDOK WAS CONSIDERED IN THE HANDS OF THE CO MPANY M/S HARE KRISHNA COLONISERS PVTLTD. IN ITS ASSESSME NT FOR A. Y. 2006-07 RELATING TO THE TRASACTION OF SALE OF LA ND AT CHUNA BHATTI WHILE CONSIDERING THE ACTUAL SALE CONS IDERATION RECEIVED AS AGAINST THE SALE CONSIDERATION SHOWN. T HE ADDITION MADE INCLUDED THIS AMOUNT OF RS. 30,00,000 /- ALSO. IT MAY BE NOTED THAT THE ADDITION MADE 117 THE HANDS OF MIS HARE KRISHNA COLONISERS PVT. LTD. STANDS CONFIRMED BY THE LD CIT(A) AND HON 'BLE ITA T HENCE, THIS AMOUNT OF RS. 30, 00, 0001- CANNOT BE CONSIDERED FOR MAKING ANY ADDITION IN THE HANDS OF THE APPELLANT, OTHERWISE, IT WOULD AMOUNT TO DOUBLE ADDITION. IN VIEW OF THE ABOVE, THE TOTAL ADDITION REQUIRED T O BE MADE IN THE HANDS OF THE APPELLANT WORKS OUT TO RS. 21,95,8 321- (RS. 11,99,582 + RS. 9,96,250) AS AGAINST ADDITION OF RS . 39,41, SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 34 130/- MADE BY THE AO. ACCORDINGLY, THE AO IS DIRECT ED TO RESTRICT THE ADDITION TO THE EXTENT OF RS.21,95,8321-. THUS, THE APPELLANT GETS A RELIEF OF RS 17,45,298/- (RS. 39,4 1,130 - RS. 21, 95, 832) IN THIS GROUND. ON CAREFUL PERUSAL OF THE SUBMISSION OF THE LD.AR A ND THE ABOVE ORDER OF THE LD.CIT(A)-I, BHOPAL, I FIND THAT THE ISSUE HAS BEEN DECIDED IN THE CASE OF SHRI ASHWANI KUMAR SHARMA ON MERIT AND AFTER DISCUSSION OF ALL FACTS AND FOLL OWING THE DECISION IN ONE OF THE FAMILY MEMBERS WHICH HAS BEE N EQUALLY APPLIED FOR OTHER MEMBERS OF THE FAMILY, I FIND THAT INCOME OF RS.41,55,832/- OUGHT TO BE ASSESSED IN TH E HANDS OF THE APPELLANT ON THIS COUNT AS PER THE DETAILS G IVEN BELOW: (A) OUT OF RS. 75,00,000/- OFFERED IN COURSE OF SEARCH AS UNACCOUNTED INCOME ON ACCOUNT OF UNDISCLOSED INVESTMENT IN 72 PLOTS ACQUIRED BY THE FAMILY IN GANESH NAGAR RS. 11,99,582/- (1/4 TH SHARE ON RS. 47,98,328) (B) OUT OF RS. 20,00,000/- OFFERED IN COURSE OF SEARCH AS PAYMENT MADE TO SHRI KANHAIYALAL RS. 15,00,000 SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 35 GYANCHANDANI, SHRI ASHOK NANDA ETC. (C) OUT OF INCOME RS. 30,00,00/- OFFERED IN COURSE OF SEARCH AS UNEXPLAINED RECEIPTS FROM SALE OF PLOTS AT CHUNA BHATTI RS. 7,00,000/- & RS. 7,56,250/- AS 1/4 TH SHARE ON RS. 30,25,000/- TOTAL RS.41,55,832 THE ASSESSING OFFICER HAS MADE ADDITION OF RS. 39,4 1,130/- I.E. 1/4 TH SHARE OF RS. 1,57,64,521 AND, THUS, AFTER DUE DISCUSSION WITH THE LD AR, THE ADDITION IS ENHANCED TO RS. 41,55,832/- 37. THE POSITION OF ADDITIONS MADE BY THE ASSESSING OFFICER AND IN SOME CASES CONSIDERED BY THE LEARNED CI T(A) IS SUMMARISED AS UNDER :- SHAMBHU NATH RAM NATH ASHWINI NATH SHYAM NATH TOTAL SURRENDER 1,83,08,000 AO [1/4 OF 157.64 CRORES] 39,41,130 39,41,130 39,41,130 39,41,130 1,57,64,521 CIT(A) CONFIRMED 41,55,582 [GR NO.4-7 (A)] 21,95,852 [GR. NO. 2- 4 (A)] 19,55,832 [GR. NO. 4 (A)] PENDING BEFORE LD CIT(A) RS. 83,07,266 IN HANDS OF THREE MEMBERS CIT(A) DELETED 17,45,298 [GR. NO. 3 17,45,298 [GR. NO. 3 19,85,298 [GR. NO. 2 RS. 54,75,894 SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 36 (D)] (D)] (D)] DELETED. 38. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE WAS NO STATEMENT RECORDED BY THE ASSESSEE. THE ASSESSEE NEVER ACCEPTED THE SURRENDER. A FTER THE SEARCH, THE FAMILY MEMBERS OF THE ASSESSEE PREPARED THE RECEIPT AND PAYMENT ACCOUNT ON THE BASIS OF VARIOUS DOCUMENTS FOUND DURING THE COURSE OF SEARCH. THESE RECEIPTS AND PAYMENT ACCOUNTS WERE PREPARED ASSESSEEWIS E AND YEARWISE. BASED ON THESE PAYMENT AND RECEIPT ACCOUNTS, THE INCOME AND EXPENDITURE ACCOUNT WAS ALSO PREPARED. THE COMPUTATION OF INCOME WAS ALSO PREPARED. I T WAS ALSO SUBMITTED THAT WHEREVER SHORT FALL WAS THERE, T HE ASSESSEE DECLARED THE AMOUNT FOR TAXATION UNDER THE HEAD MISCELLANEOUS INCOME OR INCOME FROM SOURCES. THE DETAILS WERE ALREADY STATED IN ANNEXURE-B REPRODUCED ABOVE. IT WAS CONTENDED THAT ALL THE PAYMENTS MADE HAVE BEEN RECORDED IN THE RECEIPT AND PAYMENT ACCOUNT. THE SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 37 RECEIPTS ARE EITHER ACCEPTED OR ADDITIONS WERE MADE U/S 68 OF THE ACT FOR WHICH THE ASSESSEE PREFERRED SEPARATE GROUNDS. THE SOURCE OF PAYMENTS WAS EXPLAINED AND NO ADDITION U/S 69 OF THE ACT CAN BE MADE.FOR SPECIFIC ADDITIONS, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMIT TED AS UNDER :- 39. INVESTMENT IN 72 PLOTS (CORRECT 71 PLOTS) IN GANESH NAGAR BY FAMILY AS PER VARIOUS REGISTRIES FOUND : - DURING THE COURSE OF SEARCH, VARIOUS REGISTRIES WERE FOUND DOING INVESTMENT BY THE FAMILY IN 71 PLOTS AT GANESH N AGAR AT THE TIME OF SEARCH SINCE THE BOOKS WERE NOT MAINTAIN ED RAM NATH SHARMA WAS UNABLE TO EXPLAIN THE INVESTMENT IN THIS PROPERTY. HE SURRENDERED RS. 75 LACS TOWARDS THE INVESTMENT IN THESE PLOTS. SUBSEQUENTLY THE ASSESSEE SUBMITTED THAT INVESTMENT IN THESE PROPERTIES WERE F ROM DEFINED SOURCES GIVEN IN THE RECEIPTS AND PAYMENT ACCOUNTS, THEREFORE, NO ADDITION U/S. 69 WAS CALLED FOR . THE SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 38 LIST OF THE PLOTS WAS GIVEN SHOWING INVESTMENT BY VAR IOUS FAMILY MEMBERS IN THESE PLOTS AT GANESH NAGAR. THESE INVESTMENTS ARE SHOWN IN THE RECEIPTS AND PAYMENTS ACCOUNT PREPARED IN EACH INDIVIDUAL FAMILY MEMBER. THUS , IT WAS CLAIMED BEFORE US THAT NONE OF THE INVESTMENT CANNOT BE SAID TO BE UNEXPLAINED. THE RESPECTIVE INVESTMENT HAS BEEN DULY REFLECTED IN THE RECEIPTS AND PAYMENTS ACCOUNT OF RESPECTIVE INDIVIDUAL. FULL DETAIL S OF THESE INSTRUMENTS ARE GIVEN IN ANNEXURE B-2 WHICH IS REPRODUCED HEREUNDER :- DETAILS OF THE PLOTS PURCHASED BY SHARMA FAMILY S.N. PLOT NO. AREA OF PLOT SQ. FT. CONSIDERATION SHOWN BY SHARMA FAMILY AMOUNT OF CONSIDERATION PAID AS PER SEIZED PAPERS P. NO. OF SEIZED PAPERS NAME OF THE SELLER DATE OF AGREEMENT NAME OF THE PURCHASER POWER OF ATTORNEY IN THE NAME OF FUNDS PROVIDED BY PURCHASE SHOWN IN THE NAME OF THE PERSON OF THE PERSON ASSMT. YEAR ADDITION MADE BY A.O. IN THE NAME OF THE PERSON ADDITION CONFIRMED BY CIT(A) 1 2 3 4 5 6 7 8 9 10 1 B - 69 2400 RS.100100 NIL D.P.SHRIVAS TAV 18-05-2004 S.N. SHARMA SHAMBHU NATH SHARMA SHAMBHU NATH SHARMA S.N. SHARMA 2005-06 2 177 1800 RS. 171050 RS.100000 NIL VIMLESH VERMA KUSUM SHRMA SHAMBHU NATH SHARMA SHAMBHU NATH SHARMA S.N. SHARMA 2006-07 3 143 1800 106000 RS.90000 NIL B.N.SHRIVAS TAV 02- 2004 RADHA SHARMA SHAMBHU NATH SHAMBHU NATH SHARMA S.N. SHARMA 2006-07 SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 39 SHARMA 4 166 1800 RS. 153100 RS. 153000 BS 10-103/104 KAJI ISHRALI 20-09-2004 SHYAM NATH SHARMA SHYAM NATH SHARMA SHYAM NATH SHARMA S HYAM NATH SHARMA 2005-06 5 191 1800 134875 RS. 100000 BS 11-87 TO 90 & S 11-99 TO 102 PRAVIN SHAH 08-10-2004 SHYAM NATH SHARMA SHYAM NATH SHARMA SHYAM NATH SHARMA S HYAM NATH SHARMA 2005-06 6 B - 34, 35, 36, 138 7200 273010 RS. 273600 BS 22- 23&24 JAWAHAR LAL GUPTA 28- 05-2004 SHYAM NATH SHARMA SHYAM NATH SHARMA SHYAM NATH SHARMA S HYAM NATH SHARMA 2005-06 7 B - 42 1800 134875 PRAG NARAYAN 05-07-2004 SHYAM NATH SHARMA SHYAM NATH SHARMA SHYAM NATH SHARMA S HYAM NATH SHARMA 2005-06 8 150 1800 102446 RS. 90000 BS 11-59 TO 61 & 73 TO 75 PHAKRUL HAYYAT 12- 03-2004 RADHA SHARMA SHYAM NATH SHARMA SHYAM NATH SHARMA S HYAM NATH SHARMA 2004-05 9 157 1800 102253 RS. 90000 BS 11-37 TO 39 48 TO 51 AKILA BEGAM 10- 02-2004 RADHA SHARMA SHYAM NATH SHARMA SHYAM NATH SHARMA S HYAM NATH SHARMA 2004-05 10 158 1800 102253 RS. 90000 BS 14-9 TO 11 & 20 TO 22 JAVED MIRZA 10-03-2004 RADHA SHARMA SHYAM NATH SHARMA SHYAM NATH SHARMA S HYAM NATH SHARMA 2004-05 RADHA SHARMA 2004-05 PLOT NO. 158 FOR ASSMT. YR 2004- 05 11. 168 1800 156353 RS. 90,000 BS 10-75 TO 77 & 92 TO 94 KN SRIVASTAV 01-03-2004 RADHA SHARMA SHYAM NATH SHARMA SHYAM NATH SHARMA S HYAM NATH SHARMA 2004-05 RADHA SHARMA 2005-06 12. 169 1800 102253 RS. 90,000 BS 10-40 TO 42 & 53 TO 56 SNEHLATA SRIVASTAV 10-02-2004 RADHA SHARMA SHYAM NATH SHARMA SHYAM NATH SHARMA S HYAM NATH SHARMA 2004-05 RADHA SHARMA 2004-05 PLOT NO. 169 FOR ASSMT. YR 2004- 05 13. 210 1800 90253 RS. 80,000 BS 13-142 TO 144& 152 TO 154 SARASWATI BAI 07-02-2004 RADHA SHARMA SHYAM NATH SHARMA SHYAM NATH SHARMA S HYAM NATH SHARMA 2004-05 RADHA SHARMA 2004-05 RS. 140000 IN PLACE OF RS. 90253AS PER UNSIGNED PAGE NO. 39 TO 40 OF BS-9 PLOT NO. 210 A.YR. 04- 05 14. 211 1800 RS. 90000 DWARKA RADHA SHYAM S HYAM RANJANA SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 40 102253 BS 18 - 72 TO 74 & 82 TO 84 DAS 12 - 03 - 2004 SHARMA SHYAM NATH SHARMA NATH SHARMA NATH SHARMA 2004-05 SHARMA 2004-05 15. 212 1800 102253 RS. 90000 BS 8-13 TO 15 & 24 TO 26 MANMOHAN SINGH 04-3- 2004 RADHA SHARMA SHYAM NATH SHARMA SHYAM NATH SHARMA S HYAM NATH SHARMA 2004-05 RADHA SHARMA 2004-05 16. 40 1800 187025 RS. 144000 BS 14-72 TO 76 ASHA MALVIYA 29- 10-2003 RADHA SHARMA SHYAM NATH SHARMA SHYAM NATH SHARMA S HYAM NATH SHARMA 2004-05 17. B - 10 2400 132713 RS. 90000 BS 23-24 TO 26 & 33 TO 35 MANJU AGRAWAL 17-02-2004 RADHA SHARMA SHYAM NATH SHARMA SHYAM NATH SHARMA S HYAM NATH SHARMA 2005-06 18. 128,129 3600 119261 RS. 1,00,000 BS 21-9 TO 10 & 22 TO 24 AJAY KHOSLA 07-10-2004 RADHA SHARMA SHYAM NATH SHARMA SHYAM NATH SHARMA S HYAM NATH SHARMA 2005-06 RADHA SHARMA 2005-06 PLOT 128, 129 A. Y. 05-06 19. 206 1800 99885 RS. 90000 BS 8 85 TO 87 & 99 TO 102 AJAY KUMAR NIGAM 06-04-2004 RADHA SHARMA SHYAM NATH SHARMA SHYAM NATH SHARMA S HYAM NATH SHARMA 2005-06 RADHA SHARMA 2005-06 PLOT NO. 206, A. Y. 05-06 20. 213 1800 99885 RS. 90000 BS 18-30 TO 32 & 60 TO 62 ABDUL AZIZ 06-04-2004 RADHA SHARMA SHYAM NATH SHARMA S HYAM NATH SHARMA 2005-06 RADHA SHARMA 2005-06 PLOT NO. 213, A. Y. 05-06 21 244 1800 99885 RS. 90000 BS 18-117 TO 119 & 131 TO 133 MADHURI SINGH 06-04-2004 RADHA SHARMA SHYAM NATH SHARMA SHYAM NATH SHARMA S HYAM NATH SHARMA 2005-06 RADHA SHARMA 2005-06 PLOT NO. 244 , A. Y. 05-06 22 24 1800 119885 RS. 90000 BS 23 109 TO 112 VINOD BUNDELA 08-07-2004 RADHA SHARMA SHYAM NATH SHARMA SHYAM NATH SHARMA S HYAM NATH SHARMA 2005-06 RADHA SHARMA 2005-06 PLOT NO. 24 , A. Y. 05-06 23 39 1800 59885 RS. 50000 BS 24-44 TO 46 & 57 TO 60 SATPAL THAKRAL 26-07-2004 RADHA SHARMA SHYAM NATH SHARMA SHYAM NATH SHARMA S HYAM NATH SHARMA 2005-06 RADHA SHARMA 2005-06 PLOT NO. 239 , A. Y. 05-06 24 42 1800 194000 07 - 06 - 2004 RADHA SHARMA SHYAM NATH SHARMA SHYAM NATH SHARMA S HYAM NATH SHARMA 2005-06 RADHA SHARMA 2005-06 PLOT NO. 42 , A. Y. 05-06 25 47 1800 119885 RS. 90000 BS 27-27 TO 29 & 43 TO 47 SAIKH LIYAKA 19-07-2004 RADHA SHARMA SHYAM NATH SHARMA SHYAM NATH SHARMA S HYAM NATH SHARMA 2005-06 RADHA SHARMA 2005-06 PLOT NO. 47 , A. Y. 05-06 26 68 1800 50200 RS. 50 000 BS 28-70 TO 71 & 76 TO 77 REENA GUJRAL 11-05-2004 RADHA SHARMA SHYAM NATH SHYAM NATH SHARMA S HYAM NATH SHARMA 2005-06 RADHA SHARMA 2005-06 PLOT NO. 68 , A. Y. 05-06 SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 41 SHARMA 27 97 1800 83885 RS. 75 000 BS 28-45 TO 47 & 56 TO 59 B.P.SAXENA 14-07-2004 RADHA SHARMA SHYAM NATH SHARMA SHYAM NATH SHARMA S HYAM NATH SHARMA 2005-06 RADHA SHARMA 2005-06 PLOT NO. 97 , A. Y. 05-06 28 B - 25 2400 128077 RS. 9 0000 BS 25-11 TO 13 & 25 TO 28 GULAB BAI 09-06-2004 RADHA SHARMA SHYAM NATH SHARMA SHYAM NATH SHARMA S HYAM NATH SHARMA 2005-06 RADHA SHARMA 2005-06 PLOT B - 25 , A. Y. 05-06 29 B - 50 2400 189133 RS. 150 000 BS 15-72 TO 9 & 31 TO 33 E.B.SINGH 28-01-2005 RADHA SHARMA SHYAM NATH SHARMA SHYAM NATH SHARMA S HYAM NATH SHARMA 2005-06 RADHA SHARMA 2005-06 PLOT B - 50 A. Y. 05-06 30 B - 5 2400 163277 RS. 150 000 BS 15- 72 71 & 62 TO 64 CHANDRA RASTOGI 26-05-2004 RADHA SHARMA SHYAM NATH SHARMA SHYAM NATH SHARMA S HYAM NATH SHARMA 2005-06 RADHA SHARMA 2005-06 PLOT B - 5 A. Y. 05-06 31 C - 13 1800 40460 RS. 40 000 BS 25-60 TO 65 BRIJ KISHORE SHARMA 25-01-2005 RADHA SHARMA SHYAM NATH SHARMA SHYAM NATH SHARMA S HYAM NATH SHARMA 2005-06 RADHA SHARMA 2005-06 PLOT C - 13 A. Y. 05-06 32 C - 14 1800 49885 RS. 40 000 BS 25-42 TO 50 SHYAM SHARMA 19-07-2004 RADHA SHARMA SHYAM NATH SHARMA SHYAM NATH SHARMA S HYAM NATH SHARMA 2005-06 RADHA SHARMA 2005-06 PLOT C - 14 A. Y. 05-06 33 C - 5 1800 75000 SATISH KUMAR BHATIYA 22-04-2004 RADHA SHARMA SHYAM NATH SHARMA SHYAM NATH SHARMA S HYAM NATH SHARMA 2005-06 RADHA SHARMA 2005-06 PLOT C - 5 A. Y. 05-06 34 144 1800 104603 RS. 90000 BS 19-47 TO 49 & 55 TO 57 L.N.SRIVASTA V 01-03-2004 RANJANA SHARMA RAMNATH SHARMA RAM NATH SHARMA RAM NATH SHARMA 2004-05 RAM NATH SHARMA 2004-05 35 162 1800 102503 RS. 90000 BS 11-9 TO 11 & 24 TO 27 MINAKSHI SAXENA 16-03-2004 RANJANA SHARMA RAMNATH SHARMA RAM NATH SHARMA RAM NATH SHARMA 2004-05 RA NJANA SHARMA 2004-05 & RAM NATH SHARMA 2004-05 PLOT NO. 162 , A. Y. 04-05 36 183 1800 102503 RS. 90000 BS 12-48 TO 50 & 58 TO 61 GYANI BAI 23-02-2004 RANJANA SHARMA RAMNATH SHARMA RAM NATH SHARMA RAM NATH SHARMA 2004-05 RA NJANA SHARMA 2004-05 & RAM NATH SHARMA 2004-05 PLOT NO. 183 , A. Y. 04-05 37 252 1800 10085 RS. 90000 BS 8-152 TO 154 & 162 TO 165 A.N.PANDEY 07-02-2004 RANJANA SHARMA RAMNATH SHARMA RAM NATH SHARMA RAM NATH SHARMA 2004-05 RA NJANA SHARMA 2004-05 & RAM NATH SHARMA 2004-05 PLOT NO. 252 , A. Y. 04-05 38 118 1800 10085 RS. 90000 BS 24-66 TO 68 & 74 TO 77 MOHD. KHALIL 07-07-2004 RANJANA SHARMA RAMNATH SHARMA RAM NATH SHARMA 2005-06 RANJANA SHARMA 2005-06 PLOT NO. 118 AY. 05-06 SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 42 39 61 & 62 1800 307561 RS. 288000 BS 14-80 TO 82 & BS 16-92 TO 94 PRATIMA VERMA 15-04-2004 RANJANA SHARMA RAMNATH SHARMA RAM NATH SHARMA 2005-06 RANJANA SHARMA 2005-06 & KUSUM SHARMA 2005-06 (PAGE NO. 80-82 OF BS 16 OF KUSUM) PLOT 61 & 62 A.Y. 05-06 40 67 1800 50300 RS. 5000 BS 17-26 TO 29 MOHAN LAL BINDRA 11-05-2004 RANJANA SHARMA RAMNATH SHARMA RAM NATH SHARMA 2005-06 RANJANA SHARMA 2005-06 PLOT NO. C-6 A.Y. 05- 06 41 C6 2400 64503 RS. 50000 BS 14-35 TO 37 & 50 TO 53 S.K.BHATIYA 22-04-2004 RANJANA SHARMA RAMNATH SHARMA RAM NATH SHARMA 2005-06 RANJANA SHARMA 2005-06 42 B - 38,39 50000 JAWAHAR LAL GUPTA 27-08-2004 A.N.SHAR MA A.N. SHARMA A.N. SHARMA 2005-06 43 26,45,46 4500 30110 RS. 30000 BS 8-65 TO 68 PHOOL MATI GUPTA 27-08-2004 A.N.SHAR MA A.N. SHARMA A.N. SHARMA 2005-06 44 148 1800 115810 RS. 95000 BS 19-15 TO 21 HEMLATA SHAHGAL 27-04-2005 A.N.SHAR MA A.N. SHARMA A.N. SHARMA 2006-07 45 175 1800 150610 RS. 125000 BS 12-98 TO 100 & 104 TO 108 SHANTI DEVI 25-05-2005 A.N.SHAR MA A.N. SHARMA A.N. SHARMA 2006-07 46 208 1800 125710 RS. 125000 BS 8-39 TO 41 & 46 TO 51 BHAWNA SRIVASTAV 25-05-2005 A.N.SHAR MA A.N. SHARMA A.N. SHARMA 2006-07 A.N. SHAR MA 125710 A.Y. 2006-07 47 242 1800 162500 STATE BANK OF INDIA 09-07-2005 A.N.SHAR MA A.N. SHARMA A.N. SHAR MA 2006-07 48 49 1800 227150 RS. 207000 BS 15-48 TO 50 KHALID AHMAD 25-07-2005 A.N.SHAR MA A.N. SHARMA A.N. SHAR MA 2006-07 49 C3 1800 270150 RS. 207000 BS 18-40 TO 42 RAGHU RAJ SINGH 25-07-2005 A.N.SHAR MA A.N. SHARMA A.N. SHAR MA 2006-07 50 B - 51 2880 152650 RS. 150000 BS 14-20 TO 25 PHOOL MATI JAIN 16-12-2003 A.N.SHAR MA A.N. SHARMA A.N. SHAR MA 2004-05 51 123 1800 127453 RS. 90000 BS24-19 TO 21 & 4 TO 6 ABDUL KADIR 09-02-2004 KUSUM SHARMA KUSUM SHARMA KUSUM SHARMA 2004-05 52 182 1800 122453 RS. 90000 BS12-74 TO 76 & 84 TO 87 LAKHMICHA ND 19-02-2004 KUSUM SHARMA KUSUM SHARMA KUSUM SHARMA 2004-05 53 243 1800 122503 RS. 90000 BS18-13 TO 15 & 8 TO 9 TAKSINGH 26-02-2004 KUSUM SHARMA KUSUM SHARMA KUSUM SHARMA 2004-05 SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 43 54 18 1800 100660 RS. 90000 BS14-65 TO 39 SUSHMA NARANG 18-03-2005 KUSUM SHARMA KUSUM SHARMA KUSUM SHARMA 2005-06 55 193, 197, 202 5400 253657 RS. 150000 BS 8-129 TO 133 DILIP KUMAR 24-08-2004 KUSUM SHARMA KUSUM SHARMA KUSUM SHARMA 2004-05 56 45 900 50395 RS. 45000 BS27-50 TO 56 KALA BAI 13-07-2004 KUSUM SHARMA KUSUM SHARMA KUSUM SHARMA 2005-06 57 64 1800 50300 RS. 50000 BS17-17 TO 21 NANDRAM BINDRA 11-05-2004 KUSUM SHARMA KUSUM SHARMA KUSUM SHARMA 2005-06 58 132 1800 125755 RS. 100000 BS28-13 TO 14 FARUKH KHA 19-04-2005 KUSUM SHARMA KUSUM SHARMA KUSUM SHARMA 2005-06 59 152 1800 70000 GLORI LARGES 07-10-2005 KUSUM SHARMA KUSUM SHARMA KUSUM SHARMA 2006-07 60 153 1800 70000 GLORI LARGES 07-10-2005 KUSUM SHARMA KUSUM SHARMA KUSUM SHARMA 2006-07 61 154 1800 70000 GLORI LARGES 07-10-2005 KUSUM SHARMA KUSUM SHARMA KUSUM SHARMA 2006-07 62 28 1800 80710 RS. 80000 BS 9-49 TO 51 & BS 22-19 TO 21 JAI SHREE KISHAN 20-05-2005 KUSUM SHARMA KUSUM SHARMA KUSUM SHARMA 2006-07 63 38 1800 125780 RS. 100000 BS24-91 TO 93 & 72 TO 73 S RAJENDRA SINGH 03-06-2005 KUSUM SHARMA KUSUM SHARMA KUSUM SHARMA 2006-07 64 170 1800 50000 RS. 50000 BS10-9 TO 11 & 4 TO 5 NARBADA SHARMA 21-07-2004 RADHA SHARMA RADHA SHARMA RADHA SHARMA 2005-06 65 186 1800 59935 RS. 50000 BS12-8 TO 10 & BS 22 16 TO 17 BINDESWARI RATHORE 25-09-2004 RADHA SHARMA RADHA SHARMA RADHA SHARMA 2005-06 RADHA SHARMA 2005-06 66 199 1800 93055 RS. 90000 BS 8-114 TO 116 & 121 TO 123 KAMLA DEVI 02-02-2005 RADHA SHARMA RADHA SHARMA RADHA SHARMA 2005-06 67 5,6,12,2 4 8400 736227 RS. 672000 BS 17 58 TO 60 & 52 TO 54 VEDPRAKASH VARMA 12-04-2004 RADHA SHARMA RADHA SHARMA RADHA SHARMA 2005-06 68 B - 48, 49 4800 275495 RS. 250000 BS15-60 TO 64 & 75 TO 77 MASHROOR KHA 07-10-2004 RADHA SHARMA RADHA SHARMA RADHA SHARMA 2005-06 69 112 1800 102253 RS. 90000 BS12-10 TO 16 VINDHYA WATI SINHA 16-03-2004 RADHA SHARMA RADHA SHARMA RADHA SHARMA RADHA SHARMA 2004-05 SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 44 70 145 1800 102253 RS. 90000 BS 18-7 TO 9 & 13 TO 15 SAFIA BEGAM 09-02-2004 RADHA SHARMA RADHA SHARMA RADHA SHARMA RADHA SHARMA 2004-05 71 147 1800 102253 RS. 90000 BS 18-53 TO 56 & 66 TO 68 SHARDA DEVI 09-02-2004 RADHA SHARMA RADHA SHARMA RADHA SHARMA RADHA SHARMA 2004-05 PAPERS RELATING TO PAYMENT TO PERSONS WERE FOUND DUR ING THE SEARCH. LPS 5 PG. 13 (PLACED AT PB 159) SHOWS A PAYMENT OF RS. 5 LACS TO TO KANHAIYALAL GYANCHANDANI BY SHAMBHUNATH SHARMA, LPS 5 PG. 11 (PLACED AT PB 161- 163) SHOWS A PAYMENT OF RS. 10 LACS TO ASHOK NANDA BY SHAMBHUNATH SHARMA, LPS 5 PG. 7-8 (PLACED AT PB 164- 165) SHOWS PAYMENT OF RS.5 LACS TO THADARAM GRAH NIRMAN SANSTHA OF KANHAIYALAL GYANCHANDANI. 43. THE TOTAL OF THESE PAYMENTS COMES TO RS. 20 LACS . ASSESSEE WAS UNABLE TO EXPLAIN THE SOURCE OF THESE PAYMENTS AT THE TIME OF SEARCH, THEREFORE, THE SAME W AS SURRENDERED AS MADE FROM UNDISCLOSED INCOME. AFTER TH E SEARCH OPERATION, BASED ON THE PAPERS FOUND AND SEIZED, A RECEIPTS AND PAYMENTS ACCOUNT WAS PREPARED AND THESE SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 45 PAYMENTS ARE EXPLAINED TO BE OUT OF THESE RECEIPTS AND PAYMENTS ACCOUNTS. IT WAS SUBMITTED THAT THE PAYMENT O F RS. 5 LACS TO KANHAIYALAL GYANCHANDANI WAS AN ADVANCE FOR PURCHASE OF LAND BY SHAMBHUNATH SHARMA. THIS PAYMENT IS REFLECTED IN THE RECEIPT AND PAYMENT ACCOU NT OF SHRI SHAMBHUNATH SHARMA PLACED AT (PB 185) IN F.Y. 2004-05. IT WAS ALSO SUBMITTED THAT THIS AMOUNT WAS RETURNED BY THE ASSESSEE IN F.Y. 2005-06 WHICH IS E VIDENT FROM PAGE NO. PB 19. SINCE IT FORMS PART OF RECEIPTS AND PAYMENT ACCOUNT, THE SOURCE OF SAME WAS EXPLAINED, THEREFORE, THIS CANNOT BE ADDED U/S. 69 OF THE ACT AND DESERVES TO BE DELETED. WITH REGARD TO THE PAYMENT O F RS.10 LACS TO ASHOK NANDA [LPS 5 PG. 11], IT IS SUBMITTED TH AT SHAMBHUNATH SHARMA GAVE ADVANCE FOR PURCHASE OF LAND. THIS PAYMENT HAS BEEN REFLECTED IN THE RECEIPTS AND PAYMENTS ACCOUNT FOR F.Y. 2004-05. PB 185. SINCE IT FORMS A PART OF RECEIPT AND PAYMENT ACCOUNT, THE SOURCE OF S AME SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 46 IS EXPLAINED. NO ADDITION CAN BE MADE U/S. 69 OF THE AC T. IN RESPECT OF PAYMENT OF RS. 5 LACS TO THADARAM GRAH NIRMA N SANSTHA [LPS 5 PG. 7-8], IT IS SUBMITTED THAT ASHWINI NATH SHARMA GAVE ADVANCE FOR PURCHASE OF LAND. THIS PAYMENT IS REFLECTED IN HIS RECEIPTS AND PAYMENT ACCOUNT FOR THE F.Y. 2005-06. [PB 169 OF HIS PAPER BOOK FOR A.Y. 20 05-06]. THE AMOUNT WAS SUBSEQUENTLY RETURNED IN SAME F.Y. SINCE IT FORMS PART OF RECEIPT AND PAYMENT ACCOUNT, THE SOU RCE OF SAME IS EXPLAINED. NO ADDITION U/S. 69 IS CALLED FOR. A CONFIRMATION LETTER OF KANHAIYALAL WAS ALSO PLACED AT PB PAGE NO. 166. THE AR FOR APPELLANTS SUBMITTED THAT SHAMBHUNATH, RAMNATH, AND ASHWININATH HAD NO CONCERN IN THE MATTER. THE HONBLE ITAT ALREADY CONFIRMED THE ADDITION IN RES PECT OF SALE PROCEEDINGS OF RS. 107 LACS LEADING TO CAPITAL G AINS OF RS. 75.02 LACS, WHICH WAS THE SHARE OF HARE KRISHNA SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 47 COLONISERS PVT LTD. THE FINDINGS IN HARE KRISHNA COLO NISERS OF THE HONBLE ITAT ARE GIVEN AS UNDER: - WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAVE GONE THROUGH THE RECORDS OF THE AUTHORITIES BELOW AND FOUND FROM RECORD THAT THE AGREEMENT TO SALE WAS FOUND DURING SEARCH INDICATING SALE CONSIDERATION AT RS. 1,42,70,256/- IN THE STATEMENT RECORDED U/S. 132(4) ONE OF THE DIRECTORS OF THE COMPANY SHRI RAM NATH SHARMA HAS GIVEN A STATEMENT THAT PROPERTY WAS SOLD FOR THIS MUCH OF CONSIDERATION AND RS. 20 LACKS WAS ALSO PAID IN ADVANCE. IT WAS ALSO STATED THAT UP TO THE DATE OF SEARCH I.E. ON 16.09.2005, THE ASSESSEE HAD RECEIVED RS. 71 LACKS OUT OF WHICH RS. 41 LACKS HAD BEEN ACCOUNTED FOR AND THE BALANCE OF RS. 30 LACKS RECEIVED IN CASH WAS NOT RECORDED IN THE BOOKS OF ACCOUNT, WHICH WAS ALSO OFFERED AS INCOME FROM SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 48 UNDISCLOSED SOURCES. SINCE THE ALLEGED CANCELLATION DEED WAS FOUND DURING COURSE OF SEARCH ACCOMPANIED BY THE STATEMENT RECORDED U/S. 132(4) CLEARLY INDICATE THAT THERE WAS NO CANCELLATION OF PLOT. ACCORDINGLY, THE ASSESSING OFFICERS WAS JUSTIFIED IN TREATING THE DIFFERENCE IN SALE CONSIDERATION ACTUALLY DISCLOSED IN THE RETURN AS COMPARED TO THE SALE CONSIDERATION FOUND DURING COURSE OF SEARCH. THE LD. CIT(A) AFTER RECORDING DETAILED FINDING CORRECTLY COMPUTED THE GAIN ON SUC H SALE AT RS. 75,02,692/-. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A) FOR CONSIDERATION THIS ADDITION IT IS FURTHER SUBMITTED THAT SO FAR AS THE SHARE OF SHYAMNATH SHARMA IS CONCERNED WHICH WAS , THE SAME SHALL BE EXPLAINED IN HIS CASE. THIS PAPER, DID NOT REL ATE TO THE APPELLANTS, HENCE NO ADDITION IS CALLED FOR. THE LD SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 49 CIT(A) ALSO, HOLDING ON SIMILAR LINES DELETED THE ADD ITION. 53. LD. AR FURTHER SUBMITTED THAT THE CASE LA WS RELIED UPON BY LD CIT(DR) ARE HAVING DISTINCT FACTS AND DISTINGUISHABLE. HE SUBMITTED THAT IN THE CASE OF ME DICAL LAND 45 TAXMANN.COM 488 (KER.) THE SURRENDER WAS RELAT ED TO INVESTMENT IN PROPERTY. SAME WAS NOT RETRACTED BY BRINGING ANY MATERIAL ON RECORD. IN THE PRESENT CASE, T HE ASSESSEE HAS BROUGHT SUFFICIENT MATERIAL ON RECORD TO ESTABLISH THE SOURCE OF INVESTMENT IN THE PROPERTIES . THE DEPARTMENT HAS NEVER CHALLENGED THE GRAVITY OF THE DOCUMENTS FILED AND THE RECEIPTS AND PAYMENTS ACCOUNT PREPARED ON THE BASIS OF PAPERS FOUND AND SEIZED DURIN G THE SEARCH OPERATION. IN THE CASE OF RAVINDRA D. TRIVEDI 215 CTR 313 (RAJ.) THE ADDITION WAS NOT RETRACTED SUCCESS FULLY BY MAKING OUT SUFFICIENT GROUND FOR DISCREPANCY. THUS , NO SUFFICIENT EVIDENCE WAS GIVEN TO RETRACT THE SAME WHIL E ASSESSEE HAS SUBMITTED ALL RELEVANT DOCUMENTS IN SUPPOR T SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 50 OF ITS CLAIM. IN THE CASE OF CIT VS O. ABDUL RAZAK 20 TAXMANN.COM 48 (KER.) IT WAS HELD THAT THE BURDEN IS C AST ON ASSESSEE TO PROVE THE DETRACTION OR RATHER DISPROVE THE ADMISSIONS MADE. IN THE PRESENT CASE, THE ASSESSEE HAS BROUGHT SUFFICIENT EVIDENCES TO DISPROVE THE ADDITIO NS MADE. THERE WAS NO BASIS OF ADDITIONS AT ALL. THE RECEIPT OF PAYMENT ACCOUNT IS PREPARED ON THE BASIS OF DOCUMENTS FOUND IN SEARCH. IN THE CASE OF BHAGIRATH AGGARWAL 31 TAXMANN.COM 274 (DEL.) IT WAS HELD THAT THE JUDICIAL AUTHORITIES OUT TO LOOK FOR CORROBORATIVE EVIDENCES I N THE CASE OF RETRACTION OF STATEMENT. THIS CASE, SUPPORTS TH E ASSESSEE, AS IN THE PRESENT CASE, IF THE CORROBORATIVE EVIDENCES ARE CONSIDERED, THEY ESTABLISH THAT NO ADDITI ON IS CALLED FOR. IT WAS SUBMITTED THAT IT IS A SETTLED LAW, THAT MERE ADMISSION MAY BE AN EVIDENCE, BUT IT IS NOT CONCLUSIVE. IF THE ASSESSEE IS ABLE TO ESTABLISH THAT THE ADMISSION IS UNDER A MISTAKE, OR NO ADDITION IS CALLED F OR SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 51 CONSIDERING THE EVIDENCES ON RECORD, ADMISSION AS SUC H, CANNOT BECOME A BASIS OF ADDITION. THE APPELLANT HAS ALSO PLACED RELIANCE ON THE FOLLOWING CASES : - IN THE CASE OF PULLANGODE RUBBER PRODUCE CO. LTD. VS STATEMENT OF KERALA 91 ITR 18 (SC) IT WAS HELD THAT IT I S OPEN TO THE TAX-PAYER, WHO MADE THE ADMISSION, TO SHO W THAT THE ADMISSION IS INCORRECT. IN THE CASE OF LAXMINARAIN JANGID VS ITO (2005) 93 TTJ 37 (JODH.) THE STOCK WAS NOT TAKEN CORRECTLY AND T HE NOTINGS AT THE BACK OF THE VOUCHERS HAVE BEEN EXPLAINED . ADMISSION WAS RETRACTED. ASSESSING OFFICER CANNOT MAKE ADDITION MERELY ON THE BASIS OF SURRENDER. RELIANCE WAS ALSO PLACED ON THE CASE OF HARSHAD L. THAKKAR VS ACIT (2005) 3 SOT 277 (MUM.) AND ITO VS BUADAS (2006) 155 TAXMAN 130 (AMRITSAR) WHEREIN IT IS SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 52 HELD THAT IF THERE IS NO CORROBORATIVE EVIDENCE TO SU PPORT ADMISSION, NO ADDITION CAN BE MADE. IN THE CASE OF SURJEET SINGH CHABBRA VS UOI AIR 1997 (SC) 2560 WHEREIN IT WAS HELD THAT THE FIRST STATEMENT ON OATH CARRIES GREATER EVIDENTIARY VALUE, IF THE FACTS STAT ED THEREIN ARE PROVED TO BE INCORRECT, RETRACTION IN VALI D. IN THE CASE OF PALANI SWAMI VS STATE OF T.N. AIR 1996 (SC) 953 IT WAS HELD THAT WHEN CIRCUMSTANCES CAST A SUSPICION ON THE GENUINENESS OF CONFESSION AND IT IS PROVED TO BE BASED ON WRONG FACTS, IT IS NOT CONFESSION ADMIS SIBLE AS SUCH. IN THE CASE OF SHRI KRISHAN (SC) 1976 AIR 376 IT WAS HELD THAT ANY ADMISSION MADE IN IGNORANCE OF LEGAL RIGHT S CANNOT BIND THE MAKER OF THE ADMISSION. IT IS ALWAYS OP EN TO THE ASSESSEE TO DEMONSTRATE THE CORRECT FACTS. FURTHER RELIANCE WAS ALSO PLACED ON: KARAMCHAND VS CIT; 164 TAXMAN 66 (CHANDIGARH AT) ABDUL GAYUMI; 184 ITR 404 (ALL.) SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 53 ACIT VS SATYANARAIN AGRAWAL; 225 ITR (AT) CAL. 69 JCIT VS KISAN EXTRACTION; 8 ITJ 502 (TRIB. INDORE) DCIT VS SHRI KANAKMAL SANGHVI,6 ITJ 760 (TRIB. INDORE) GREENVIEW RESTAURANT; 263 ITR 169 (GAU.) MURUGESAN & BROS. ; 88 ITR 432 (SC) ITO VS VIJAY KUMAR KESAR; 14 ITJ 679 (CG) IN THE CASE OF IN MOHESHWAR MAHADEV BHONDVE 114 DTR 393 (PUNE) IT WAS HELD THAT EVEN IF RETRACTION IS MADE AFTER A LONG LAPSE OF TIME, IT CAN BE REJECTED ON BASIS OF CO JECT EVIDENCE. MERELY ON THE GROUND OF MAKING STATEMENT, RETRACTION CANNOT BE REJECTED. WE HAVE HEARD BOTH THE SIDES AND GONE THROUGH THE CASE LAWS RELIED ON BY BOTH THE SIDES. THERE WAS NO STATEMENT RECORDED BY THE ASSESSEE DURING THE SEARCH OPERATION AND EVEN THEREAFTER. ONE OF THE FAMILY MEMBE R SON OF THE ASSESSEE MADE A STATEMENT DURING THE SEARCH OPERATION. NO BOOKS OF ACCOUNTS WERE MAINTAINED PRIOR T O THE DATE OF SEARCH. THE ASSESSEE AND THE FAMILY MEMBER S PREPARED A RECEIPT AND PAYMENT ACCOUNT ON THE BASIS OF SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 54 VARIOUS DOCUMENTS FOUND DURING THE COURSE OF SEARCH OPERATION U/S 132 OF THE ACT. THESE RECEIPTS AND PAYM ENTS WERE PREPARED ASSESSEEWISE AND YEARWISE BY MEMBERS OF THE GROUP. ON THE BASIS OF THE RECEIPTS THE CORRESPO NDING EXPENDITURES/INVESTMENTS WERE EXPLAINED AND WHEREVER THERE WAS SHORT FALL, THE AMOUNT WAS DISCLOSED FOR TAXAT ION IN THE RESPECTIVE HANDS OF THE MEMBERS OF THE FAMILY. WE WOULD ALSO LIKE TO MAKE IT CLEAR THAT ANY STATEMENT OUT OF IGNORANCE OF CERTAIN VITAL FACTS OR NEGLIGENCE OR FOR N ON- ACCESSIBILITY TO THE BOOKS OF ACCOUNTS AND OTHER RELEV ANT DOCUMENTS OR FOR ANY OTHER REASON, WHICH IS CONTRARY T O THE ESTABLISHED FACTS OF THE CASE, ONE CANNOT BE ASSESS ED TO TAX MERELY ON THE BASIS OF ERRONEOUS STATEMENT THAT TOO BY OTHER FAMILY MEMBERS. THE DETAILS ARE AS PER ANNEXUR E- B1 WHICH HAS BEEN REPRODUCED IN THE EARLIER PART OF TH IS ORDER. THE INVESTMENT IN PLOTS AT GANESH NAGAR IN THE NAMES OF VARIOUS FAMILY MEMBERS HAS BEEN EXPLAINED AS SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 55 GIVEN IN DETAIL IN ANNEXURE-B2. THE LEARNED DR PLEASIN G FOR THE REVENUE FAILED TO CONTROVERT THE FACTS RECORD ED IN THE RECEIPT AND EXPENDITURE ACCOUNT PREPARED BY THE ASSESSEE. IN OUR CONSIDERED VIEW, ONCE THE RECEIPTS ARE SUFFICIENT TO EXPLAIN THE CORRESPONDING EXPENDITURE THEN THERE CANNOT BE ADDITION U/S 69 OF THE ACT. WHEN RECE IPTS SHOWN IN RECEIPT AND EXPENDITURE ACCOUNTS ARE ACCEPTED THEN THE CORRESPONDING EXPENDITURE/INVESTMENT CANNOT BE HELD AS UNEXPLAINED. WITH REGARD TO ADDITION MADE FOR PAYMENTS OF RS.5 LACS TO SHRI KANHAIYALAL GHYAMCHANDANI, RS. 10 LACS TO ASHOK NANDA AND RS. 5 LACS TO THADARAM GRIH NIRMAN SANSTH, WE HOLD THAT THE PAYMENTS MADE TO SHRI KANHAIYALAL GYANCHANDANI IS DULY REFLECTED IN THE RECEIPT AND PAYMENT ACCOUNT PREPARED BY THE ASSESSEE. THIS AMOUNT WAS GIVEN BY THE ASSESSEE FOR THE PURCHASE OF LAND AND THE SAME IS REFLECTED IN THE RECEIPT AND PAYMENT ACCOUNT FROM THE FINANCIAL YEAR 2004 - SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 56 05. THIS AMOUNT OF RS. 5 LACS WAS RETURNED BY GYANCHANDANI IN THE F.Y. 2005-06 AND THE SAME IS ALSO REFLECTED IN THE RECEIPT AND PAYMENT ACCOUNT PREPARED BY THE ASSESSEE. THEREFORE, WE FIND NO JUSTIFICATION IN SUSTAINING THIS ADDITION. FURTHER WITH REGARD TO THE PAYMENT OF RS.10 LACS TO ASHOK NANDA WE WOULD ALSO LIKE TO HOLD THAT THIS WAS TH E ADVANCE GIVEN BY THE ASSESSEE FOR PURCHASE OF LAND AND IT HAS BEEN REFLECTED IN THE RECEIPT AND PAYMENT ACCOUNT FOR THE F.Y. 2004-05. THEREFORE, THE SOURCE OF INVESTME NT IS EXPLAINED AND NO ADDITION CAN BE SUSTAINED U/S 69 OF TH E ACT. FURTHER WITH REGARD TO PAYMENT OF RS. 5 LACS TO THADARAM GRIH NIRMAN SANSTHA WE WOULD HOLD THAT THIS AMOUNT WAS GIVEN BY ASHVANI SHARMA FOR PURCHASE OF LAND AND THIS AMOUNT IS REFLECTED IN HIS RECEIPT AND PAYMENT ACCOUNT PREPARED ON THE BASIS OF DOCUMENTS FOUND AND SEIZED DURING THE COURSE OF SEARCH FOR THE F.Y. SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 57 2005-06. SINCE THIS AMOUNT IS REFLECTED IN THE RECE IPT AND PAYMENT ACCOUNT OF ASHVANI SHARMA THERE IS NO QUESTION OF MAKING ANY ADDITION IN THE HANDS OF THE ASSESSEE BY INVOKING THE PROVISIONS OF SECTION 69 OF THE ACT. I N THE CASE OF PAYMENT OF RS. 5 LACS BY ASHVANI SHARMA TO THADARAM GRIH NIRMAN SANSTHA THE CONFIRMATION LETTER HAS ALSO BEEN SUBMITTED WHICH IS PLACED AT PAGE 166 OF THE PAPER BOO K. IN VIEW OF THE FACTUAL MATRIX, THIS ADDITION OF RS.20 L ACS MADE IN THE HANDS OF THE ASSESSEE CANNOT BE SUSTAINED. FURTHER, WITH REGARD TO DISCLOSURE OF RS.30 LCAS CASH RECEIVED FROM THE SALE OF PLOT FROM PARAMJEET SINGH CHANDOK WE HOLD THAT THIS AGREEMENT WAS ENTERED INTO BY HARE KRISHNA COLONISERS AND SHYAMNATH SHARMA. HARE KRISHNA COLONISER WAS OWNER OF 3/4 TH OF THE LAND AND SHYAMNATH SHARMA WAS OWNER OF 1/4 TH OF THE LAND. THE ITAT HAS CONFIRMED THE ADDITION IN RESPECT OF SALE PROCEEDS RECEIVED BY HARE KRISHNA COLONISERS WHERE TH E SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 58 CAPITAL GAINS OFRS. 75.02 LACS HAS BEEN CONFIRMED IN THE HANDS OF HARE KRISHNA COLONISERS. THE RELEVANT PARA HAS ALREADY BEEN REPRODUCED HEREINABOVE. THEREFORE, ON THI S BASIS ALSO NO ADDITION CAN BE SUSTAINED IN THE HANDS OF THE ASSESSEE. KEEPING THESE FACTS IN VIEW AND THE RATIO OF THE VARIOUS CASE LAWS RELIED UPON, WE HOLD THAT NO ADDITION CAN BE SUSTAINED ONLY ON THE BASIS OF STATEMENT MADE U/S 132(4) OF THE ACT WHEN IT IS SUFFICIENTLY EXPLAINED BY VARIOUS DOCUMENTS. HON'BLEBLE SUPREME COURT IN THE CASE OF KRISHAN VS. KURUSHETRA UNIVERSITY; AIR 1976 SUPREME COURT 377 HELD THAT MERE ADMISSION CANNOT BE BAD ROCK OR FOUNDATION OF AN ASSESSMENT AND IT IS ALWAY S OPEN TO THE ASSESSEE WHO MADE THE ADMISSION TO SHOW THAT WHAT HE ADMITTED WAS NOT CORRECT. SINCE THE REVEN UE HAS FAILED TO CONTROVERT THE CORRECTNESS OF THE RECEI PT AND PAYMENT ACCOUNT PREPARED BY THE ASSESSEE FOR THE RELEV ANT SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 59 PERIOD, NO ADDITION CAN BE SUSTAINED ONLY ON THE STATEMENT BY A THIRD PARTY. IN THE RESULT, THE ADDITION MADE ON THIS ACCOUNT STANDS DELETED. 55. IN THE REVENUES APPEAL, GROUND NO. 2 RELATES TO DELETING THE ADDITION OF RS.13 LACS MADE AS UNEXPLAINE D PAYMENTS. 56. BEFORE US, THE LEARNED DR RELIED UPON THE ORDER S OF THE ASSESSING OFFICER AND LEARNED COUNSEL FOR THE ASSESSEE RELIED UPON THE ORDER OF THE LEARNED CIT(A). IT WAS SUBMITTED THAT THE LOOSE PAPERS LPS-2/46 WAS FOUND DURING THE SEARCH PLACED AT PAGE 76 OF THE PAPER BOOK. T HIS WAS THE PAYMENT OF COMMISSION SHOWING ROUGH NOTHINGS ON THE LEDGER OF PUNJAB & SINDH BANK. NO QUERY WAS MADE DURING THE SEARCH OPERATION. HOWEVER, THE ASSESSING SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 60 OFFICER MADE THE ADDITION WITHOUT ANY BASIS WHICH THE LEARNED CIT(A) HAS RIGHTLY DELETED. 57. WE HAVE HEARD BOTH THE SIDES. THE LEARNED CIT(A) HAS DELETED THE ADD BY HOLDING AS UNDER :- DECISION: I CONSIDERED SUBMISSION MADE BY THE LD.AR AND PERUSED THE ENTRIES 'MADE IN PAGE NO.46 OF LPS-2 CAREFULLY. THE CANNED COPY OF THE PAGE IS REPRODUCED HEREUNDER. FROM PAGE NO.46 OF LPS-2, IT IS EVIDENT THAT THE PAPER WAS DATED AS 07.04.2005 AND THERE WERE NINE ENTRIES OF LAND BROKERS AND AGAINST EACH ENTRY CERTAIN AMOUNTS IN LAKHS HAVE BEEN JOTTED DOWN. THERE IS NO OTHER INFORMATION AVAILABLE IN THIS PAP ER, THE AO PICKED UP ENTRY NO,3 & 4 AGAINST WHICH RS45,OO,OOO/- AND RS8,OO,OOO/- HAS BEEN JOTTED DOWN SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 61 AND PRESUMED FROM THE ENTRY OF RS.45,O0,OOO/- THAT IT MUST BE' OF RS.50,00,000/- OUT OF WHICH RS.5,00,000/- MUST HAVE BEEN PAID LEAVING THE BALANCE OF RS.45,00,000/- AS PAYABLE AND HE MADE ADDITION OF RS.5,00000/- IN THE HANDS OF THE APPELLANT. SIMILARLY, HE MADE A PRESUMPTION THAT RS.8,00,000/- HAS BEEN PAID TO SHRI KANHAIYALAL GYANCHANDANI THOUGH THERE IS NO REFERENCE OF ACTUAL PAYMENT OF JOTTED FIGURES IN THE LOOSE PAPER MOREOVER, THE CONTENTS OF THE PAPER ARE NOT CORRELA TED TO ANY FINDING REGARDING PURCHASE AND SALE OF ANY SPECIFIC IMMOVABLE PROPERTIES. WITHOUT MAKING ANY PROPER ENQUIRY REGARDING ANY IMMOVABLE PROPERTY OWNED BY THE APPELLANT THROUGH THESE BROKERS, ADDITION MERELY ON THE BASIS OF JOTTINGS MADE IN TH E ALLEGED PAPER IS 110 SUSTAINABLE AND HENCE, IT IS SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 62 DELETED. 58. AFTER HEARING BOTH THE SIDES, WE HOLD THAT THESE WERE THE ROUGH NOTINGS AND THERE WAS NO CORROBORATIVE EVIDE NCE BROUGHT ON RECORD BY THE REVENUE TO ESTABLISH THAT ANY SUCH PAYMENTS WERE MADE BY THE ASSESSEE. THE ASSESSI NG OFFICERS APPREHENSION THAT THE ASSESSEE MIGHT HAVE ENTERED INTO AGREEMENT FOR PURCHASE OF LAND WITH THES E PERSONS WAS WITHOUT ANY BASIS. THERE IS NO EVIDENCE FO UND DURING THE SEARCH THAT PAYMENTS HAVE BEEN MADE BY THE ASSESSEE. THE ASSESSING OFFICER HAS ALSO NOT INQUIRED FROM THE PERSONS TO ESTABLISH WHETHER ANY TRANSACTION HAS BEE N DONE WITH THEM. IN THE ABSENCE OF ANY CORROBORATIVE EVIDENCE WITH REGARD TO ANY PURCHASE OF LAND FROM THESE PERSONS, NO ADDITION CAN BE SUSTAINED ON THE BASIS OF ROUGH NOTINGS WHICH ARE NOT CONCLUSIVE EVIDENCE THAT THE TRANSACTION WAS CONCLUDED. THE WORD MENTIONED IS KO SHAMBHUNATH SHARMA IT(SS) A NOS. 644 AND 627/IND./2013 63 DENA HAI. THUS, THIS PAPER SHOWS THAT THE TRANSACTION WAS NOT CONCLUDED. IT WAS PAYABLE. THEREFORE, WE FIND NO MERIT IN THIS GROUND OF THE REVENUE AND WE SUSTAIN TH E ORDER OF THE LEARNED CIT(A). IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS PARTL Y ALLOWED AND THAT OF THE REVENUE DISMISSED. PRONOUNCED IN OPEN COURT ON 9 TH DECEMBER, 2015 SD/- SD/- (D.T. GARASIA) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER 9 TH DECEMBER, 2015
