ITO, Kishangarh V. SMT. SAROJ GARG, Kishangarh

ITA 680/JPR/2012

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4910 (ITAT-JAIPUR)
• Duration Of Justice: 4 year(s) 3 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-11-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 18-07-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA CIT DHK
• Assessee Lawyers: S L PODDAR
• Keywords: Unexplained cash credit; Unexplained investment; Search and seizure; Loose papers; Question of law; Difference of opinion; Onus to prove
• Section: 143(3); 260A; 131; 68

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH ,-MH-TSU]] U;KF;D LNL; ,OA JH FOE FLAG ;KNO ] YS[KK LNL; DS LE{K BEFORE: SHRI A.D.JAIN, JM & SHRI VIKRAM SINGH YADAV , AM VK;DJ VIHY LA-@ ITA NO.680/JP/12 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 THE INCOME TAX OFFICER, KISHANGARH CUKE VS. SMT. SAROJ GARG, AZAD NAGAR, MADANGANJ, KISHANGARH LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ADEPG 3885 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO.784/JP/13 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2010-11 SMT. SAROJ GARG, AZAD NAGAR, MADANGANJ, KISHANGARH CUKE VS. THE INCOME TAX OFFICER, KISHANGARH LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ADEPG 3885 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI S.L. PODDAR, ADV. JKTLO DH VKSJ LS@ REVENUE BY : SHRI R.A. VERMA (ADDL. CIT ) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 07.09.2016 ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 17/11/2016. VKNS'K@ ORDER PER SHRI VIKRAM SINGH YADAV, A.M. THESE ARE TWO APPEALS FILED BY THE REVENUE AS WELL AS ASSESSEE AGAINST THE ORDER OF LD. CIT(A) AJMER DATED 02.05.2012 FOR A.Y. 2009-10 AND DATED 05.09.2013 FOR A.Y. 2010-11 WHEREIN THE REVENUE AS WELL AS ASSESSEE HAVE TAKEN FOLLOWING GROUNDS OF APPEAL: ITA NO.680 /JP/12 & 784/JP/13 ITO, KISHANGARH VS. SMT. SAROJDEVI GRG, KISHANGARH 2 IN ITA NO. 680/JP/12 FOR A.Y. 2009-10 (REVENUE) (1) IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) AJMER HAS ERRED IN DELETING THE ADDITION OF RS.29,23,300 /- MADE U/S 69A AND RS. 27,70,810/- U/S 68 ON ACCOUNT OF UNEXPLAINED DE POSITS AND UNEXPLAINED CREDITS RESPECTIVELY IN THE SAVING BA NK ACCOUNT WITH OBC AND SBI BY TREATING THE DEPOSITS/CREDITS IN HER BAN K ACCOUNT FOR COMMISSION RECEIPTS @ 300/- PER EVERY RS. 1 LAC WI THOUT ANY BASIS. (2) IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE C ASE THE LD. CIT(A) AJMER HAS ERRED IN DELETING THE ADDITION OF RS.29,23,300 /- MADE U/S 69A AND RS. 27,70,810/- U/S 68 ON ACCOUNT OF UNEXPLAINED DE POSITS AND UNEXPLAINED CREDITS RESPECTIVELY IN THE SAVING BA NK ACCOUNT WITH OBC AND SBI BY TREATING THE DEPOSITS/CREDITS IN HER BAN K ACCOUNT FOR COMMISSION RECEIPTS @ 300/- PER EVERY RS. 1 LAC WH EN THE ASSESSEE HAS NOT DISCLOSED THE NAMES OF THE PARTY TO WHOM PAYMEN T WAS MADE ON WHICH SHE GOT COMMISSION @ RS. 300/- FOR EVERY 1 L AC AS STATED BY HER. (3) IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE C ASE THE LD. CIT(A) AJMER HAS ERRED IN TREATING THE DEPOSITS/CREDITS IN HER BANK ACCOUNT FOR COMMISSION RECEIPTS @ 300/- FOR VERY RS. 1 LAC IN O THERWISE IT IS UNEXPLAINED INCOME U/S 69A/69B OF THE IT ACT, 1961. (4) IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE C ASE THE LD. CIT(A) AJMER HAS ERRED IN TREATING THE DEPOSITS/CREDITS IN HER BANK ACCOUNT FOR COMMISSION RECEIPTS @ 300/- FOR VERY RS. 1 LAC WHEN THE BANK ACCOUNT IS OF THE NATURE OF SAVING BANK ACCOUNT AND WITHOUT E STABLISHING THE NEXUS BETWEEN THE DEPOSITS VIZ-A-VIZ BUSINESS TRANSACTIO NS. IN ITA NO. 784/JP/13 FOR A.Y. 2010-11 (ASSESSEE) (1) UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE T HE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.27,22,400/- U/S 69 A OF THE IT ACT, 1961 WITHOUT CONSIDERING THE SUBMISSION OF THE ASSESSEE. (2) UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE T HE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.27,22,400/- U/S 69 A OF THE IT ACT, 1961 WITHOUT CONSIDERING THE DECISION OF EARLIER BY HIS PREDECESSOR WHEN THERE IS NO CHANGE IN THE FACTS OF THE CASE. ITA NO.680 /JP/12 & 784/JP/13 ITO, KISHANGARH VS. SMT. SAROJDEVI GRG, KISHANGARH 3 2. THE FACTS AND CIRCUMSTANCES OF BOTH THESE APPEAL S ARE SIMILAR. HENCE, THE SAME WERE HEARD TOGETHER AND DISPOSED OFF BY THIS C ONSOLIDATED ORDER. 3. FOR THE PURPOSES OF DISCUSSIONS, WE WILL TAKE UP THE FACTS FOR AY 2009-10. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND DERIVES INCOME FROM INTEREST. RETURN WAS FILED ON 18.09.200 9 DECLARING TOTAL INCOME OF RS. 15,740/-. THE ASSESSING OFFICER COMPLETED THE A SSESSMENT ORDER U/S 143(3) OF THE INCOME TAX ACT, 1961 ON 21.12.2011 DETERMINI NG TOTAL INCOME AT RS. 57,09,883/- INTER-ALIA MAKING AN ADDITIONS OF RS. 5 6,94,110/- ON ACCOUNT OF DEPOSITS IN BANK ACCOUNTS MAINTAINED BY THE ASSESSE E. THE AMOUNT OF RS 29,23,300/- DEPOSITED IN CASH HAS BEEN HELD AS UNEX PLAINED U/S 69A WHEREAS AMOUNT OF RS. 27,70,840/- RECEIVED THROUGH CHEQUE/C LEARING HAS BEEN HELD AS UNEXPLAINED U/S 68 OF THE INCOME TAX ACT, 1961. AGG RIEVED BY THE ORDER OF THE ASSESSING OFFICER, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD CIT(A) WHO HAS DELETED THE ENTIRE ADDITIONS. NOW THE REVENUE IS IN APPEAL BEFORE US CHALLENGING THE FINDINGS OF THE LD CIT(A). 3.1 THE FINDINGS OF LD CIT(A) ARE AS UNDER: DURING THE COURSE OF ASSESSMENT PROCEEDINGS, APPEL LANT APPEARED BEFORE AO AND STATED THAT AMOUNTS WERE DEPOSITED IN HER BANK ACCOUNT BY VARIOUS PARTIES AND SHE USED TO RECEIVED ONLY C OMMISSION FOR THIS. IT WAS FURTHER STATED BY HER THAT SHE USED TO RECEIVE COMMISSION @. 200/- FOR EVERY RS. 1 LAC DEPOSITED IN HER ACCOUNT. AO HA S NOT BROUGHT ANY MATERIAL ON RECORD TO PROVE THAT THIS CONTENTION OF APPELLANT IS INCORRECT. NO OTHER MATERIAL HAS BEEN BROUGHT ON RECORD BY AO TO PROVE THAT SHE HAD ANY OTHER SOURCE OF INCOME OR SHE WAS CARRYING OUT ANY BUSINESS. IN SUCH CIRCUMSTANCES IT CAN BE REASONABLY HELD THAT S HE ONLY ACTED AS COMMISSION AGENT IN THIS CASE. KEEPING IN VIEW ALL THESE FACTS AND RESPECTFULLY FO LLOWING ABOVE DECISION, AO IS DIRECTED TO COMPUTE COMMISSION INCOME IN THE CASE OF APPELLANT @ RS. 300/- PER LAC DEPOSITED IN HER BANK ACCOUNT (56,94,143/1,00,000X300). THUS AO IS DIRECTED TO R ESTRICT ADDITION IN THE ITA NO.680 /JP/12 & 784/JP/13 ITO, KISHANGARH VS. SMT. SAROJDEVI GRG, KISHANGARH 4 CASE OF APPELLANT ACCORDINGLY. GROUND NO. 1 & 2 OF THE APPEAL ARE THUS PARTLY ALLOWED. 2.2 THE LD AR OF THE ASSESSEE SUBMITTED THAT IN THI S CASE THE LEARNED ASSESSING OFFICER MADE ADDITION ON ACCOUNT OF DEPOS ITS NOTICED IN THE BANK ACCOUNTS WITH OBC AND SBI TOTALING TO RS. 56,94,110 /-. THE LEARNED ASSESSING OFFICER DISREGARDED THE SUBMISSION OF THE ASSESSEE THAT HER BANK ACCOUNT WAS ALLOWED TO BE OPERATED BY VARIOUS PERSONS ON COMMIS SION BASIS. IT WAS SUBMITTED THAT SHE ACTED ONLY AS A COMMISSION AGENT . THE AMOUNT DEPOSITED WAS WITHDRAWN IMMEDIATELY AND PAID TO THE CONCERNED PARTY WHO HAD DEPOSITED THE AMOUNT IN THE BANK. SHE WAS CHARGING ONLY COMMISSION OF RS. 200/- PER RS. 1,00,000/-. IT WAS SUBMITTED BEFORE T HE LEARNED ASSESSING OFFICER THAT THE DEPOSITS WERE MAINLY MADE BY ONE OF SHRI R AHUL GOYAL S/O SHRI OM PRAKASH GOYAL OF KISHANGARH. THE LEARNED ASSESSING OFFICER ISSUED SUMMONS U/S 131 TO SHRI RAHUL GOYAL WHO IN RESPONSE FURNISH ED AN AFFIDAVIT DENYING ANY RELATIONSHIP WITH THE ASSESSEE. HOWEVER SHRI RAHUL GOYAL WAS NOT ALLOWED CROSS EXAMINATION BY THE ASSESSEE AND AS SUCH THE L EARNED ASSESSING OFFICER WAS PRECLUDED IN RELYING ON THE AFFIDAVIT OF SHRI R AHUL GOYAL. THUS THE ORDER OF THE LEARNED ASSESSING OFFICER IS VITIATED ON THIS A CCOUNT. THE LEARNED CIT(A) FOUND THAT SIMILAR ISSUE HAS ARISEN IN THE CASE OF SMT. ANITA CHOUDHARY FOR ASSESSMENT YEAR 2005-06 WHEREIN ADDITION OF RS. 25, 20,100/- WAS MADE AND THE SAME WAS REDUCED TO RS. 42,000/- ONLY VIDE ORDE R DATED 07.05.2010 IN ITA NO. 773/JP/2009. THE LEARNED CIT(A) HAS QUOTED AT L ENGTH FROM THE ORDER OF THE HON'BLE ITAT. THE LEARNED CIT(A) HAS FURTHER OB SERVED THAT THE HON'BLE HIGH COURT DISMISSED THE APPEAL OF THE REVENUE AGAI NST THE ORDER OF THE HON'BLE ITAT IN APPEAL NO. 289/2010 VIDE ORDER DATE D 14.10.2011. ON THE BASIS OF THIS DECISION AND VARIOUS OTHER DECISIONS QUOTED BELOW, THE LEARNED CIT(A) HELD THAT THE MONEY DEPOSITED IN THE BANK ACCOUNTS OF THE ASSESSEE DID NOT ITA NO.680 /JP/12 & 784/JP/13 ITO, KISHANGARH VS. SMT. SAROJDEVI GRG, KISHANGARH 5 BELONG TO HER. HE HAS ACCEPTED THE PLEA OF THE ASSE SSEE THAT THE MONEY DEPOSITED IN HER BANK ACCOUNT BELONG TO VARIOUS PAR TIES AND SHE WAS EARNING ONLY COMMISSION ON THIS IT HAS FURTHER BEEN OBSERVE D BY THE LEARNED CIT(A) THAT THERE WAS NO MATERIAL ON RECORD TO DISPROVE TH E CONTENTION OF THE ASSESSEE AND THE LEARNED ASSESSING OFFICER ALSO FAI LED TO BRING ON RECORD ANY MATERIAL ESTABLISHING THAT THE ASSESSEE WAS INDULGI NG IN ANY BUSINESS ACTIVITY. ON THE BASIS OF ALL THIS THE LEARNED CIT(A) HELD TH AT COMMISSION @ 300/- PER 1 LAC WOULD BE THE INCOME OF THE ASSESSEE AND PASSED ORDER ACCORDINGLY. THE ORDER OF THE LEARNED CIT(A) DESERVES TO BE CONFIRME D AND IS SUPPORTED AS UNDER: - 2. IT IS A COVERED CASE THE LEARNED CIT(A) HAS BASED THIS DECISION CITING T HE FOLLOWING DECISIONS OF THE HON'BLE ITAT JAIPUR BENCH JAIPUR AND JURISDI CTION HIGH COURT OF RAJASTHAN: - (I) SMT. ANITA CHOUDHARY FOR ASSESSMENT YEAR 2005-06 ADDITION OF RS. 25,20,100/-. THE HON'BLE ITAT VIDE THEIR ORDER DATED 07.05.2010 IN ITA NO. 773/JP/2009 REDUCED THE ADDIT ION TO RS. 42,000/- ONLY. THE HON'BLE TRIBUNAL TREATED THE AMO UNT OF RS. 25,20,100/- AS TURNOVER OF THE ASSESSEE AND APPLIED GP RATE OF 8.78%. THE HON'BLE HIGH COURT DISMISSED THE APPEAL OF THE REVENUE AGAINST THE ORDER OF THE HON'BLE ITAT IN APPEAL NO. 289/2010 VIDE ORDER DATED 14.10.2011. ITA NO.680 /JP/12 & 784/JP/13 ITO, KISHANGARH VS. SMT. SAROJDEVI GRG, KISHANGARH 6 3. DECISION OF HON'BLE ITAT DELHI BENCH: - THE LEARNED CIT(A) HAS ALSO QUOTED THE FOLLOWING DE CISION OF THE HON'BLE ITAT DELHI BENCH IN THE CASE OF SANJAY KUMAR GARG VS. ACIT 144 TTJ 77 IN THIS CASE THE HON'BLE TRIBUNAL DIRECTED THE LEAR NED ASSESSING OFFICER TO APPLY COMMISSION @ 0.2% ON THE DEPOSITS TREATED AS TURNOVER. 4. OTHER FAVOURABLE DECISION: - THE LEARNED CIT(A) IN PARA 4.6 OF THE APPELLATE ORD ER HAS OBSERVED THAT SURVEY WAS CONDUCTED BY THE DEPARTMENT IN A NUMBER OF CASES NAMELY :- (I) SHRI MANOJ KUMAR AGARWAL (II) SHRI PRAKASH CHAND VIJAYVARGIYA (III) SHRI ABHISHEK KUMAWAT IN ALL THESE CASES ASSESSMENTS HAVE BEEN COMPLETED BY APPLYING RATE OF COMMISSION ON THE DEPOSITS IN THE BANK. A COPY OF A SSESSMENT ORDER PASSED IN THE CASE OF MANOJ KUMAR AGARWAL IS ENCLOS ED HEREWITH. IN THIS CASE THE LEARNED ASSESSING OFFICER HAS PASSED THE A SSESSMENT ORDER U/S 143(3) ON 26.12.2011 APPLYING A RATE OF COMMISSION AT RS. 300/- PER 1 LAC AND THUS THE COMMISSION INCOME OF RS. 43,255/- WAS WORKED OUT ON DEPOSITS OF RS. 1,44,18,475/- IN VARIOUS BANKS. IT IS SUBMITTED THAT DEPARTMENT HAS NOT BEEN ABLE TO CONTROVERT THESE FI NDINGS OF THE LEARNED CIT(A) AND HENCE THE ORDER OF THE LEARNED C IT(A) DESERVES TO BE UPHELD. 5. DECISION IN THE CASE OF SHRI PAWAN KUMAR PAREEK: - ITA NO.680 /JP/12 & 784/JP/13 ITO, KISHANGARH VS. SMT. SAROJDEVI GRG, KISHANGARH 7 THE LEARNED CIT(A) HAS ALSO DISCUSSED THE DECISION OF THE HON'BLE HIGH COURT IN THE CASE OF PAWAN KUMAR PAREEK WHICH HAS B EEN QUOTED IN THE ASSESSMENT ORDER BY THE LEARNED ASSESSING OFFICER I N HIS SUPPORT. THE LEARNED CIT(A) HAS DISTINGUISHED THE FACTS OF THIS CASE WITH THE FACTS OF THE CASE OF THE ASSESSEE. IT HAS BEEN NOTED BY THE LEARNED CIT(A) THAT IN THE CASE OF SHRI PAWAN KUMAR PAREEK THE ASSESSMENT ORDER WAS PASSED EX-PARTY AS THE ASSESSEE DID NOT APPEAL BEFORE THE LEARNED ASSESSING OFFICER DESPITE 9 OPPORTUNITIES GRANTED TO HIM. IN VIEW OF THIS THE HIGH COURT DID NOT ADMIT THE WRIT. IN THE CIRCUMSTANCES THE DECISION OF SHRI PAWAN KUMAR PAREEK IS NOT APPLICABLE TO THE FACTS O F THE CASE OF THE ASSESSEE. 6. OTHER FACTORS NOT WARRANTING ADDITIONS : - THE ASSESSEE ALSO SUBMITTED BEFORE THE REVENUE THAT SHE WAS NOT POSSESSING ANY MOVABLE OR IMMOVABLE ASSET. SHE WAS ONLY A HOUSEWIFE DOING NO BUSINESS. THIS COMMISSION INCOME WAS DONE JUST TO SUPPORT THE FAMILY. THE DEPARTMENT HAS FAILED TO BEING ANYTHING ON RECORD TO ESTABLISH THAT THE ASSESSEE WAS HAVING WORTH RS. 56 ,94,110/-. FURTHER IT IS FURTHER SUBMITTED THAT IN NO CIRCUMSTANCES THE L EARNED ASSESSING OFFICER WAS EMPOWERED TO MAKE ADDITION OF THE TOTAL DEPOSITS WITHOUT TAKING INTO CONSIDERATION THE RESPECTIVE WITHDRAWAL S. THE LEARNED ASSESSING OFFICER SHOULD HAVE FOLLOWED THE PRINCIPL ES OF EQUITY AND JUSTICE AND THEREFORE SHOULD HAVE GIVEN BENEFIT OF THE WITHDRAWALS IN THE BANK ACCOUNT. 7. CONCLUSION: - IN VIEW OF THE AFORESAID FACTS THE LEARNED CIT(A) H AS CORRECTLY RESTRICTED THE ADDITIONS BY HOLDING THAT COMMISSION WAS CHARGE ABLE @ 300/- PER ONE LAC. THE DECISION OF THE LEARNED CIT(A) IS WELL SUPPORTED BY DECISIONS OF THE HON'BLE ITAT JAIPUR BENCH JAIPUR A S WELL AS DELHI BENCH. ITA NO.680 /JP/12 & 784/JP/13 ITO, KISHANGARH VS. SMT. SAROJDEVI GRG, KISHANGARH 8 THE SAME DESERVES TO BE CONFIRMED AND APPEAL OF THE DEPARTMENT DESERVES TO BE DISMISSED. 2.4 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THIS CASE, THE ISSUE UNDER CONSIDERATION RELATE S TO CASH AND CHEQUE DEPOSITS IN BANK ACCOUNTS MAINTAINED BY THE ASSESSEE. THE AO HAS HELD THAT SINCE THE ASSESSEE HAS FAILED TO SUBSTANT IATE THE SOURCE OF THESE DEPOSITS, THE SAME ARE TREATED AS UNEXPLAINED DEPOS ITS AND ADDITIONS WERE MADE U/S 69A AND SECTION 68 OF THE ACT. THE LD CIT (A) HAS HELD THAT THE ASSESSEE HAS SUBMITTED THAT THESE DEPOSITS WERE MAD E BY VARIOUS PARTIES AND SHE USED TO RECEIVE ONLY COMMISSION INCOME AND IN A BSENCE OF AO BRINGING ON RECORD ANYTHING WHICH PROVES THE ASSESSEES CONTENT ION AS INCORRECT OR SHE HAD ANY OTHER SOURCE OF INCOME OR SHE WAS CARRYING OUT ANY BUSINESS, IT CAN BE REASONABLY HELD THAT SHE ONLY ACTED AS COMMISSION A GENT. 2.5 IT IS NOTED THAT IN CASE OF SMT. KUSUM DEVI VIJ AYVARGIYA AND OTHERS IN CASE OF ITA NO. 942/JP/15 & OTHERS, EXACTLY IDENTI CAL ISSUE HAD COME UP RECENTLY BEFORE ANOTHER BENCH COMPRISING ONE OF US. THE RELEVANT FINDINGS IN CASE OF SMT. KUSUMDEVI VIJAYVARGIYA & OTHERS (ITA N O. 942/JP/15 & OTHERS) DATED 20.10.2016 CONTAINED AT PARA 2.3 TO 2.14 ARE REPRODUCED AS UNDER: 2.3 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ISSUE UNDER CONSIDERATION RELATES T O CASH DEPOSITS AMOUNTING TO RS.11,37,60,458 MADE IN SIX BANK ACCOUNTS MAINTAINE D BY THE ASSESSEE. THE AO HAS HELD THESE RECEIPTS AS RECEIPTS FROM THE BUS INESS OF MARBLE TRADING AND THE LD CIT(A) HAS HELD THAT THESE RECEIPTS BELONG T O THE MARBLE TRADERS AND ASSESSEE WHO HAS FACILITATED THESE RECEIPTS SHOULD BE BROUGHT TO TAX IN TERMS OF HER COMMISSION INCOME. UNDISPUTEDLY, THESE BANK AC COUNTS ARE OPENED IN THE NAME OF THE ASSESSEE AND OPERATED BY THE ASSESSEE H ERSELF WITH THE ASSISTANCE OF HER HUSBAND. THE STAND OF THE ASSESSEE IS THAT SHE IS NOT CARRYING ON ANY BUSINESS IN THE NATURE OF MARBLE TRADING AS ALLEGED BY THE AO. SHE HAS FURTHER STATED THAT ALL THESE BANK ACCOUNTS WERE USED BY VA RIOUS MARBLE TRADERS OPERATING IN AND AROUND KISHANGARH TO BRING CASH A GAINST THEIR UNRECORDED SALES MADE TO VARIOUS PARTIES FROM ALL OVER INDIA. THE ASSESSEE FURTHER SUBMITTED THAT THE CASH DEPOSITED BY THE VARIOUS PA RTIES WAS SUBSEQUENTLY WITHDRAWN AND HANDED OVER TO THE MARBLE TRADERS TO WHOM THE SAID MONEY ITA NO.680 /JP/12 & 784/JP/13 ITO, KISHANGARH VS. SMT. SAROJDEVI GRG, KISHANGARH 9 BELONG. THE ASSESSEE SUBMITTED THAT FOR THE ACTIVIT Y OF FACILITATING THE RECEIPT OF CASH IN HER BANK ACCOUNTS AND, SUBSEQUENT WITHDRAWA L AND HANDING OVER THE CASH TO THE MARBLE TRADERS, SHE USED TO GET THE COM MISSION FROM THE SAID MARBLE TRADERS. HERE IT IS RELEVANT TO NOTE THAT T HE ENTIRE TRANSACTIONS IN VARIOUS BANK ACCOUNTS IN TERMS OF MONITORING THE C ASH DEPOSITS AS WELL AS SUBSEQUENT WITHDRAWAL AND HANDING OVER THE CASH HA S BEEN CARRIED OUT BY THE ASSESSEE HERSELF WITH THE ASSISTANCE OF HER HUSBAN D TO WHOM SHE HAS AUTHORISED AND NOT BY THE MARBLE TRADERS. HERE IT I S ALSO RELEVANT TO NOTE THAT THE AO HAS ALSO STATED IN HIS ORDER ABOUT THE SAID MARKET PRACTICE IN THE BUSINESS OF MARBLE TRADING WHERE THERE IS LARGE SCA LE UNDER INVOICING AND UNDER BILLING OF SALES. THE LD. AO HAS STATED THAT GEN ERALLY, FOR OBTAINING SALE CONSIDERATION OF ACTUAL TRANSACTION FROM THE BUYERS LOCATED OUTSIDE THE HOMETOWN OR THROUGHOUT INDIA, THE TRADERS OBTAIN PA RT AMOUNT THROUGH CHEQUES AND FOR BALANCE AMOUNT, THEY HAVE BEEN US ING THEIR CONFIDANTS (FACILITY PROVIDERS). THE CONFIDENTS ARE HAVING M ULTIPLE BANK ACCOUNTS EITHER IN THEIR NAME OR IN THE NAMES OF THEIR FAMILY MEMBERS OR CONCERN/FORMS. THEIR BANK ACCOUNT NUMBERS ARE INTIMATED TO THE BUYERS WHO DEPOSIT THE BALANCE AMOUNT WHICH IS ACTUALLY ON -MONEY, IN THE BANK ACCOUNT OF THE CONFIDANTS. THE BUYERS DEPOSIT AMOU NT BELOW RS. 50,000/- TO AVOID MENTIONING PAN ON PAY-IN-SLIPS. AFTER RECEI PT OF AMOUNT IN BANK ACCOUNT, THE CONFIDANTS I.E, FACILITY PROVIDERS WIT HDRAW THE AMOUNT OF ON- MONEY AND HAND OVER TO THE BENEFICIARIES I.E. SELLE RS. THE AO HAS THEREFORE, GIVEN HIS PRIMA FACIE FINDING THAT THE ASSESSEE IS FOUND PRIMA FACIE ENGAGED IN PROVIDING FACILITY TO BRING CASH PAYMENTS OF THE M ARBLE TRADERS BY ALLOWING THEM TO USE HER BANK ACCOUNT WHICH IS IN CONFORMITY WITH THE PREVAILING MARKET PRACTICE IN THIS REGION. 2.8 THE SAID PRIMA FACIE FINDING BY THE AO IS ON TH E BASIS OF STATEMENT OF THE ASSESEEE AND HER HUSBAND WHICH HAVE BEEN RECORDED D URING THE COURSE OF SURVEY. WITH A VIEW TO ARRIVE AT A DEFINITIVE FIND ING AND TO CORROBORATE THE SAID STATEMENTS GIVEN BY THE ASSESSEE IN TERMS OF ACTING AS FACILITY PROVIDERS, THE AO HAS ASKED THE ASSESSEE SPECIFIC QUESTIONS DURING TH E COURSE OF ASSESSMENT PROCEEDINGS WHEREBY THE ASSESSEE WAS ASKED TO PROVI DE PARTY-WISE DETAILS OF DEPOSITS MADE IN ALL THE BANK ACCOUNTS AS WELL AS NAMES AND ADDRESSES OF ALL THE BENEFICIARIES/MARBLE TRADERS TO WHOM THE CASH W AS WITHDRAWN AND HANDED OVER BY THE ASSESSEE. ITA NO.680 /JP/12 & 784/JP/13 ITO, KISHANGARH VS. SMT. SAROJDEVI GRG, KISHANGARH 10 2.9 IN COMPLIANCE, THE ASSESSEE HAS STATED THAT THE DETAILS OF MARBLE TRADERS ALONGWITH ADDRESSES WERE FURNISHED TO THE INVESTIG ATION WING WHO HAS CARRIED OUT THE SURVEY, RECORDED HER AND HER HUSBANDS STAT EMENT AND ALSO OBTAINED VARIOUS EXERCISE BOOK, DIARIES AND LOOSE PAPERS. O N PERUSAL OF THE STATEMENT OF ASSESSEES HUSBAND WHICH WAS RECORDED DURING THE CO URSE OF SURVEY AND PLACED ON RECORD, WE FIND THAT IN RESPONSE TO VARIOUS QUE STIONS SUCH AS QUESTION NO. 11,14,15,16 & 19 WHICH ARE RAISED IN THE CONTEXT OF VARIOUS EXERCISE BOOK, DIARIES AND LOOSE PAPERS FOUND DURING THE COURSE OF SURVEY, THE ASSESSEES HUSBAND HAS STATED THAT ALL THESE DOCUMENTS CONTAIN ED DATA IN TERMS OF NAMES AND ADDRESSES OF VARIOUS PARTIES WHO HAVE DEPOSITED THE MONEY IN HER VARIOUS BANK ACCOUNTS AND ALSO DETAILS OF VARIOUS MARBLE TR ADERS/BENEFICIARIES TO WHOM THAT MONEY BELONGS. 2.10 HERE THE FUNDAMENTAL QUESTION THAT ARISES FOR CONSIDERATION IS WHERE CASH HAS BEEN FOUND DEPOSITED IN THE BANK ACCOUNTS MAINTAINED BY THE ASSESSEE, THE ONUS TO PROVE THAT CASH BELONGS TO TH E ASSESSEE OR TO SOMEONE ELSE LIES ON WHOM- ON THE ASSESSEE OR ON THE REVENU E. IN THIS REGARD, WE REFER TO THE DECISION OF HONBLE SUPREME COURT IN CASE OF CHUHARMAL VS CIT (1988) 172 ITR 0250 WHEREIN THE HONBLE SUPREME COURT HAS LAID DOWN THE FOLLOWING PROPOSITION IN LAW: THE HIGH COURT IN ITS ORDER NOTED THAT THE RAIDING PARTY BY VIRTUE OF THE SEARCH ENTERED INTO THE BEDROOM OF THE ASSESSEE ON 12TH MA Y, 1973, AND SEIZED THE WATCHES. A PANCHNAMA WAS PREPARED. THE DEPARTMENT F OUND THAT THE ASSESSEE WAS THE OWNER. SEC. 110 OF THE EVIDENCE ACT IS MATE RIAL IN THIS RESPECT AND THE HIGH COURT RELIED ON THE SAME WHICH STIPULATES THAT WHEN THE QUESTION IS WHETHER ANY PERSON IS OWNER OF ANY-THING OF WHICH H E IS SHOWN TO BE IN POSSESSION, THE ONUS OF PROVING THAT HE IS NOT THE OWNER IS ON THE PERSON WHO AFFIRMS THAT HE IS NOT THE OWNER. IN OTHER WORDS, I T FOLLOWS FROM THE WELL-SETTLED PRINCIPLE OF LAW THAT NORMALLY, UNLESS THE CONTRARY IS ESTABLISHED, TITLE ALWAYS FOLLOWS POSSESSION. IN THE FACTS OF THIS CASE, INDU BITABLY, POSSESSION OF THE WRIST- WATCHES WAS FOUND WITH THE PETITIONER. THE PETITION ER DID NOT ADDUCE ANY EVIDENCE, FAR LESS DISCHARGE THE ONUS OF PROVING TH AT THE WRIST-WATCHES IN QUESTION DID NOT BELONG TO THE PETITIONER. HENCE, T HE HIGH COURT HELD, AND IN OUR OPINION RIGHTLY, THAT THE VALUE OF THE WRIST-WA TCHES IS THE INCOME OF THE ASSESSEE. IN THIS CONNECTION, REFERENCE MAY BE MADE TO THE VIEWS EXPRESSED BY ITA NO.680 /JP/12 & 784/JP/13 ITO, KISHANGARH VS. SMT. SAROJDEVI GRG, KISHANGARH 11 JUSTICE TULZAPURKAR, AS HIS LORDSHIP THEN WAS, OF T HE BOMBAY HIGH COURT IN THE CASE OF J.S. PARKAR VS. V.B. PALEKAR (1974) 94 ITR 616 (BOM) : TC42R.1775, WHERE, ON A DIFFERENCE OF OPINION BETWEEN JUSTICE D ESHPANDE AND JUSTICE MUKHI, JUSTICE TULZAPURKAR AGREED WITH JUSTICE DESH PANDE AND HELD ON THE QUESTION WHETHER THE EVIDENCE ESTABLISHED THAT THE PETITIONER WAS THE OWNER OF THE GOLD SEIZED, THOUGH THERE WAS NO DIRECT EVIDENC E PLACED BEFORE THE TAXING AUTHORITIES TO PROVE THAT THE PETITIONER HAD ACTUAL LY INVESTED MONEYS FOR PURCHASING THE GOLD IN QUESTION, THE INFERENCE OF T HE OWNERSHIP OF THE GOLD IN THE PETITIONER IN THAT CASE RESTED UPON CIRCUMSTANT IAL EVIDENCE. THERE ALSO GOLD WAS SEIZED FROM A MOTOR LAUNCH BELONGING TO THE PET ITIONER IN THAT CASE. THERE, A CONTENTION WAS RAISED THAT THE PROVISION IN S. 11 0 OF THE EVIDENCE ACT WHERE A PERSON WAS FOUND IN POSSESSION OF ANYTHING, THE ONU S OF PROVING THAT HE WAS NOT THE OWNER WAS ON THE PERSON WHO AFFIRMED THAT H E WAS NOT THE OWNER, WAS INCORRECT AND INAPPLICABLE TO TAXATION PROCEEDINGS. THIS CONTENTION WAS REJECTED. THE HIGH COURT OF BOMBAY HELD THAT WHAT W AS MEANT BY SAYING THAT THE EVIDENCE ACT DID NOT APPLY TO THE PROCEEDINGS U NDER THE ACT WAS THAT THE RIGOUR OF THE RULES OF EVIDENCE CONTAINED IN THE EV IDENCE ACT WAS NOT APPLICABLE BUT THAT DID NOT MEAN THAT WHEN THE TAXING AUTHORIT IES WERE DESIROUS OF INVOKING THE PRINCIPLES OF THE ACT IN PROCEEDINGS B EFORE THEM, THEY WERE PREVENTED FROM DOING SO. SECONDLY, ALL THAT S. 110 OF THE EVIDENCE ACT DOES IS THAT IT EMBODIES A SALUTARY PRINCIPLE OF COMMON LAW JURISPRUDENCE WHICH COULD BE ATTRACTED TO A SET OF CIRCUMSTANCES THAT SATISFY ITS CONDITIONS. (EMPHASIS SUPPLIED ) 2.11 IN LIGHT OF ABOVE, IT IS CRYSTAL CLEAR THAT WH ERE THE CASH IS FOUND IN POSSESSION OF THE ASSESSEE BY VIRTUE OF DEPOSITS IN HER BANK ACCOUNTS MAINTAINED AND OPERATED BY HER, THE ONUS IS ON THE ASSESSEE TO DISCHARGE THE BURDEN THAT CASH DOESNT BELONG TO HER AND BELONG T O THE MARBLE TRADERS. FURTHER, THE ASSESSEE HAS TO ADDUCE NECESSARY EVIDE NCE TO SUBSTANTIATE HER CLAIM. 2.12 THE NEXT QUESTION THAT ARISES FOR CONSIDERATIO N IS WHETHER IN THE INSTANT CASE, THE ASSESSEE HAS DISCHARGED HER ONUS IN TERMS OF EXPLAINING THE NATURE AND SOURCE OF DEPOSITS AND WITHDRAWALS IN VARIOUS B ANK ACCOUNTS THROUGHOUT THE YEAR. THE ASSESSEE HAS STATED IN HER STATEMEN T RECORDED DURING THE COURSE OF SURVEY THAT SHE HAS GIVEN THE PARTICULARS OF THE DEPOSITORS AND THE ITA NO.680 /JP/12 & 784/JP/13 ITO, KISHANGARH VS. SMT. SAROJDEVI GRG, KISHANGARH 12 BENEFICIARIES TO THE INVESTIGATION WING. ADMITTEDL Y, THE ASSESSEE WAS THEREFORE HAVING KNOWLEDGE AND ACCESS TO THE INFORMATION/DAT A IN TERMS OF VARIOUS DEPOSITERS AND THE BENEFICIARIES. THE ASSESSEE CO ULD HAVE SUBMITTED THE SAID INFORMATION/DATA TO THE AO DURING THE COURSE OF ASS ESSMENT PROCEEDINGS. THERE IS NOTHING ON RECORD TO SUGGEST THAT THE ASSE SSEE WAS NOT HAVING ACCESS TO THE SAID INFORMATION OR WAS PREVENTED BY SUFFICI ENT CAUSE FROM SHARING THESE INFORMATION WITH THE AO. IT IS NOT THE PLEA OF THE ASSESSEE ALL THESE DOCUMENTS WERE SEIZED DURING THE COURSE OF SURVEY A ND SHE WAS NOT HAVING ACCESS TO ALL THESE DOCUMENTS WHICH WERE ADMITTEDLY MAINTAINED BY HER WHILE TRANSACTING THROUGH HER BANK ACCOUNTS. IN OUR VIEW IT IS FOR THE ASSESSEE IN WHOSE BANK ACCOUNTS THE MONEY HAS BEEN FOUND DEPOSI TED TO EXPLAIN THE NATURE AND SOURCE OF SUCH DEPOSITS AND IT IS IN RES PECT OF EVERY SUCH TRANSACTION, THE ASSESSEE HAS TO PROVIDE THE NECESSARY EXPLANATI ON TO THE AO. SIMILARLY, THE CLAIM OF THE ASSESEEE THAT THE MONEY WAS WITHDRAWN AND GIVEN TO THE VARIOUS BENEFICIARIES HAS TO BE EXPLAINED FOR EACH OF THE T RANSACTIONS AND THE NECESSARY LINKAGE/NEXUS HAS TO BE ESTABLISHED BY THE ASSESSEE . THE SAME IS IN CONFORMITY WITH THE PROPOSITION OF LAW LAID DOWN BY THE HONBL E RAJASTHAN HIGH COURT IN THE CASE OF R.S. RATHORE 212 ITR 350 (RAJ.). IN TH AT CASE, EVEN THOUGH THE DECISION WERE RENDERED IN THE CONTEXT OF SECTION 68 , TO OUR MIND THE SAME IS EQUALLY RELEVANT FOR FACTS UNDER CONSIDERATION EVEN THOUGH THE ASSESSEE HAS NOT MAINTAINED BOOKS OF ACCOUNTS AND THE AO HAS NOT INV OKED SECTION 68 SPECIFICALLY IN THE INSTANT CASE. THE HONBLE HI GH COURT HAS OBSERVED AS UNDER: SEC. 68 REFERS TO CASH CREDITS WHICH ARE FOUND IN THE BOOKS OF THE ASSESSEE. IF THE EXPLANATION OFFERED BY THE ASSESSEE IS NOT SATI SFACTORY, THEN THE SUM SO CREDITED MAY BE CHARGED TO INCOME-TAX AS INCOME OF THE ASSESSEE IN THE PREVIOUS YEAR. THE BURDEN, THEREFORE, IS ON THE ASS ESSEE TO EXPLAIN SATISFACTORILY WITH REGARD TO THE AMOUNTS WHICH HAVE BEEN CREDITED IN THE BOOKS OF ACCOUNT BY THE ASSESSEE. THE SOURCE AND THE NATURE OF THE R ECEIPT HAS TO BE PROVED BY THE ASSESSEE, AND IF HE FAILS TO PROVE SATISFACTORI LY THE SOURCE AND NATURE OF THE AMOUNT RECEIVED, THE ASSESSING AUTHORITY IS ENTITLE D TO DRAW AN INFERENCE THAT THE RECEIPT IS ASSESSABLE INCOME OF THE ASSESSEE. T HE TRIBUNAL HAS CAST DOUBTS WITH REGARD TO THE INVESTMENTS AND HAS EVEN OBSERVE D THAT SOME OF THEM ARE NOT EVEN GENUINE. A DUTY WAS CAST ON THE TRIBUNAL T O HAVE EITHER REMITTED THE MATTER TO THE CIT(A) OR TO THE ASSESSING AUTHORITY TO FIND OUT THE CORRECT POSITION. THERE MAY BE A NUMBER OF CREDITORS OF SIM ILAR NATURE, BUT THE ASSESSEE ITA NO.680 /JP/12 & 784/JP/13 ITO, KISHANGARH VS. SMT. SAROJDEVI GRG, KISHANGARH 13 HAS TO DISCHARGE HIS BURDEN IN RESPECT OF ALL OF TH EM. THE BURDEN WAS TO BE DISCHARGED BY THE ASSESSEE AND ALL THE CREDITORS WE RE NOT PRODUCED, THEIR ADDRESSES WERE NOT GIVEN AND COGENT REASONS WERE GI VEN BY THE ITO. WHEN THE TRIBUNAL WAS OF THE VIEW THAT SOME OF THE INVESTMEN TS WERE NOT GENUINE IT SHOULD NOT HAVE UPHELD THE ORDER OF THE CIT(A) AND THE PROPER COURSE WAS TO SET ASIDE THE ORDER OF THE CIT(A) WITH A DIRECTION TO E ITHER ALLOW SUCH AMOUNTS FOR WHICH THE ASSESSEE HAS BEEN ABLE TO PROVE SATISFACT ORILY THE INVESTMENT OR TO GIVE HIM THE OPPORTUNITY TO PROVE SUCH UNEXPLAINED INVESTMENTS. THE OBSERVATIONS OF THE TRIBUNAL MAKES IT CLEAR THAT TH E TRIBUNAL ITSELF WAS IN DOUBT ABOUT THE CORRECTNESS OF ITS OWN CONCLUSION WHEN IT OBSERVED THAT SOME OF THE CASH CREDITS WERE NOT GENUINE. THUS, THE FINDING RE CORDED BY THE TRIBUNAL THAT SOME OF THE CASH CREDITS WERE NOT GENUINE VITIATES THE ORDER PASSED BY IT. THE BURDEN TO BE DISCHARGED BY THE ASSESSEE HAS NOT BEE N DISCHARGED AND THE ORDER OF THE CIT(A) COULD HAVE BEEN CONFIRMED ONLY IF THE TRIBUNAL WAS SATISFIED THAT ALL THE INVESTMENTS WERE SATISFACTORILY EXPLAINED. THE TRIBUNAL ITSELF WAS NOT IN A POSITION TO FEEL SATISFIED WITH REGARD TO THE EXP LANATION SUBMITTED AND OBSERVED THAT SOME OF THE INVESTMENTS WERE NOT GENU INE. IT WAS NOT JUSTIFIED ON THE PART OF THE TRIBUNAL IN SUCH A CASE TO UPHOLD T HE ORDER OF THE CIT(A). WHILE EXPLAINING THE VARIOUS CREDITS AND INVESTMENTS, IT MAY BE POSSIBLE THAT THE ASSESSEE MAY BE SUCCESSFUL IN EXPLAINING SOME OF TH EM, BUT THAT DOES NOT BY ITSELF MEAN THAT THE ENTIRE INVESTMENTS HAVE TO BE CONSIDERED AS EXPLAINED. EVEN LAPSE OF TIME OR INABILITY OF THE ASSESSEE WOU LD NOT MAKE THE UNEXPLAINED INVESTMENT AN EXPLAINED ONE. IT IS EACH AND INDIVID UAL ENTRY ON WHICH THE MIND HAS TO BE APPLIED BY THE TAXING AUTHORITY WHEN AN E XPLANATION IS OFFERED BY THE ASSESSEE. IF NO EXPLANATION HAS BEEN OFFERED IN RES PECT OF A PARTICULAR ENTRY, THE TAXING AUTHORITY WILL BE JUSTIFIED IN COMING TO THE CONCLUSION THAT THE SAID INVESTMENT IS UNEXPLAINED. IT IS NOT THE TOTALITY O F THE CREDIT ENTRIES WHICH ARE TO BE ALLOWED OR TO BE DISALLOWED. THIS WORK HAS TO BE DONE ON THE BASIS OF THE EXPLANATION OFFERED FOR DIFFERENT ENTRIES AND IF TH E EXPLANATION OF THE ASSESSEE IS ACCEPTABLE ON THE BASIS OF THE EVIDENCE PRODUCED BEFORE THE TAXING AUTHORITY, THE TRIBUNAL CAN COME TO THE CONCLUSION THAT SUCH I NVESTMENT IS FULLY EXPLAINED. IN THESE CIRCUMSTANCES, THE TRIBUNAL WAS NOT JUSTIF IED IN CONFIRMING THE ORDER OF THE CIT(A) AND THERE IS CONTRADICTION IN ITS DECISI ON IN HOLDING THAT ALL INVESTMENTS CANNOT BE TREATED AS UNEXPLAINED THOUGH SOME OF THEM ARE CERTAINLY NOT GENUINE. THE MATTER IS REMITTED BACK TO THE TRIBUNAL TO CONSIDER ITA NO.680 /JP/12 & 784/JP/13 ITO, KISHANGARH VS. SMT. SAROJDEVI GRG, KISHANGARH 14 EACH INDIVIDUAL INVESTMENT FOR WHICH AN EXPLANATION HAS BEEN GIVEN. IF THE TRIBUNAL IS SATISFIED WITH THE EXPLANATION SUBMITTE D BY THE ASSESSEE, THEN THE INVESTMENT TO THAT EXTENT HAS TO BE ALLOWED AND THE ENTIRE SUM CANNOT BE ALLOWED IN GENERAL. (EMPHASIS SUPPLIED) 2.13 IN OUR VIEW, MERELY BY MAKING A STATEMENT BEFO RE THE ASSESSING OFFICER THAT THE DETAILS OF THE DEPOSITORS AND THE BENEFICI ARIES WERE SUBMITTED TO THE INVESTIGATION WING, THE ONUS CAST ON THE ASSESSEE I S NOT DISCHARGED. IT IS FOR THE ASSESSEE TO EXPLAIN EACH AND EVERY ENTRY OF DEPOSIT AND WITHDRAWAL IN THE BANK ACCOUNTS AND CORROBORATE IT WITH THE DETAILS MENTIO NED IN THE NOTEBOOKS AND OTHER LOOSE PAPERS FOUND DURING THE COURSE OF SURVE Y. THERE IS NOTHING ON RECORD TO SUGGEST THAT ANY SUCH EXPLANATION AND REC ONCILIATION OF VARIOUS TRANSACTIONS WERE SUBMITTED EITHER DURING THE COURS E OF SURVEY OR DURING THE ASSESSMENT PROCEEDINGS OR EVEN DURING THE APPELLATE PROCEEDINGS. ONCE THE SAID EXERCISE HAS BEEN UNDERTAKEN AND EXAMINED, THE QUESTION OF LOOKING AT THE CIRCUMSTANTIAL EVIDENCES OR THE THEORY OF PROBABILI TY AS TO WHETHER THE ASSESSEE HAS THE NECESSARY INFRASTRUCTURE TO UNDERTAKE MARBL E TRADING CAN BE LOOKED AT. WHERE THE TRANSACTION DETAILS ARE AVAILABLE, THE SA ME SHOULD TAKE PRECEDENCE OVER THE CIRCUMSTANTIAL EVIDENCE. THE ASSESSING OF FICER THEREAFTER HAS TO APPLY HIS DISCRETION AND SEE WHETHER HE IS COMFORTABLE WI TH THE EXPLANATION OF THE ASSESSEE OR NOT AND THEN TAKE A FINAL VIEW IN THE M ATTER. 2.14 HAVING SAID THAT, WE ARE ALSO INTRIGUED BY THE INACTION ON THE PART OF THE REVENUE AND IN PARTICULAR THE AO WHEREBY HE HAS FAI LED TO CONSIDER THE DETAILS OF THE DEPOSITORS AND BENEFICIARIES AS CLAIMED TO BE SUBMITTED BY THE ASSESSEE DURING THE COURSE OF SURVEY. IDEALLY, THE AO SHOULD HAVE CONFRONTED THE ASSESSEE WITH THE DETAILS FOUND DURING THE SURVEY A ND SOUGHT AN EXPLANATION REGARDING VARIOUS DEPOSITS AND WITHDRAWALS IN RESPE CT OF VARIOUS BANK ACCOUNTS MAINTAINED BY THE ASSESSEE, THE DETAILS IN RESPECT OF WHICH HAS BEEN OBTAINED BY THE AO BY ISSUING NOTICES CALLING FOR THE INFORM ATION FROM THE VARIOUS BANKS. IT SEEMS TO US THAT THE REASON FOR INACTION ON THE PART OF THE AO IS ACCOUNT OF AO NOT HAVING NECESSARY RECORDS OF SURVEY MAINTAINE D BY THE INVESTIGATION WING. THERE THUS SEEMS TO BE A CLEAR LACK OF CO-OR DINATION BETWEEN THE INVESTIGATION WING AND THE ASSESSING OFFICER HANDLI NG THE ASSESSMENT. WE DO NOT SEE A JUSTIFIABLE REASON ESPECIALLY WHERE THE C ASE OF THE ASSESSEE ALONGWITH OTHER SIMILAR ASSESSES WERE CENTRALIZED BEFORE A S INGLE ASSESSING AUTHORITY, ITA NO.680 /JP/12 & 784/JP/13 ITO, KISHANGARH VS. SMT. SAROJDEVI GRG, KISHANGARH 15 WHY THE SURVEY RECORDS CANNOT BE SHARED WITH THE S AID AUTHORITY SO THAT THE EFFORTS INITIATED THROUGH SURVEY CAN LEAD TO A LOGI CAL CONCLUSION BY ARRIVING AT THE APPROPRIATE ASSESSMENT IN THE HANDS OF RIGHT PE RSONS. THE FACT IS THAT HUGE CASH HAS BEEN FOUND DEPOSITED IN THE BANK ACCOUNTS MAINTAINED BY THE ASSESSEE AND IT IS THE ASSESSEES PLEA THAT MONEY D OES NOT BELONG TO HER AND IT BELONGS TO SOME OTHER BENEFICIARIES. THE MONEY THER EFORE BELONGS TO SOMEONE WHO SHOULD BE BROUGHT TO TAX AS PER LAW WHERE THE P LEA OF THE ASSSESSEE IS ACCEPTED. 2.15 NOW LOOKING AT THE ORDER OF THE LD CIT(A), WE FIND THAT EVEN LD CIT(A) HAS MERELY GONE THROUGH THE SURVEY REPORTS AND THE STAT EMENTS RECORDED DURING THE COURSE OF SURVEY. HOWEVER, AS WE HAVE NOTED AB OVE, WITH A VIEW TO ARRIVE AT A DEFINITIVE FINDING, THERE IS A NECESSITY TO CO RROBORATE THE SAID STATEMENTS GIVEN BY THE ASSESSEE IN TERMS OF ACTING AS FACILIT Y PROVIDERS. AND FOR THAT, INFORMATION RELATING TO PARTY-WISE DETAILS OF DEPOS ITS MADE IN ALL THE BANK ACCOUNTS AS WELL AS NAMES AND ADDRESSES OF ALL THE BENEFICIARIES/MARBLE TRADERS TO WHOM THE CASH WAS WITHDRAWN AND HANDED OVER BY T HE ASSESSEE IS REQUIRED TO BE EXAMINED. IT IS FOR THE ASSESSEE TO EXPLAIN E ACH AND EVERY ENTRY OF DEPOSIT AND WITHDRAWAL IN THE BANK ACCOUNTS AND CORROBORATE IT WITH THE DETAILS MENTIONED IN THE NOTEBOOKS AND OTHER LOOSE PAPERS F OUND DURING THE COURSE OF SURVEY AND THE NECESSARY LINKAGE/NEXUS HAS TO BE ES TABLISHED BY THE ASSESSEE. THERE IS NOTHING ON RECORD TO SUGGEST THAT ANY SUCH EXPLANATION AND RECONCILIATION OF VARIOUS TRANSACTIONS WERE SUBMITT ED DURING THE APPELLATE PROCEEDINGS OR EXAMINED BY THE LD CIT(A). 2.16 IN OUR VIEW, THE MATTER REQUIRES A DEEPER AND A COORDINATED EXAMINATION BY THE AUTHORITIES AT THE HIGHER LEVEL TO BRING THE CORRECT FACTS ON RECORD WHICH SHOULD CONCLUSIVELY ESTABLISH THAT EITHER THE ASSES SEE IS THE OWNER OF THE MONEY FOUND DEPOSITED IN HER BANK ACCOUNTS AS CLAIMED BY THE AO OR THE ASSESSEE IS MERELY A FACILITATOR AND EARNS COMMISSION INCOME AS CLAIMED BY THE ASSESSEE. ACCORDINGLY, WE SET-ASIDE THE MATTER TO THE FILE OF THE LD CIT(A) TO EXAMINE THE MATTER AFRESH WITH THE FOLLOWING DIRECTIONS: (1) THE ASSESSEE SHALL PROVIDE ALL THE REQUISITE D ETAILS IN TERMS OF NAMES AND ADDRESS AND OTHER REQUISITE PARTICULARS OF THE DEPO SITORS AS WELL AS OF THE BENEFICIARIES; ITA NO.680 /JP/12 & 784/JP/13 ITO, KISHANGARH VS. SMT. SAROJDEVI GRG, KISHANGARH 16 (2) THE ASSESSEE HAS TO EXPLAIN THE NATURE AND SOU RCE OF THE TRANSACTIONS IN TERMS OF DEPOSITS AND ESTABLISH THE NECESSARY LINKA GE BETWEEN THE DEPOSITS AND THE SUBSEQUENT WITHDRAWALS TO VARIOUS INDIVIDUAL BE NEFICIARIES; (3) THE LD CIT(A) SHALL CALL FOR THE RECORDS MAIN TAINED BY THE INVESTIGATION WING IN RESPECT OF THE SURVEY PROCEEDINGS AND CONF RONT THE SAME TO THE ASSESSEE TO PROVIDE HER A SUITABLE OPPORTUNITY; (4) THE BENEFICIARIES TO BE CONFRONTED WITH THE DET AILS SUBMITTED BY THE ASSSESSEE AND CALL FOR THEIR CONFIRMATION AND/OR PE RSONAL APPEARANCES AND/OR COORDINATE WITH THEIR RESPECTIVE CITS/ASSESSING OFF ICERS; AND (5) NEEDLES TO SAY, BOTH THE PARTIES SHALL BE PROVI DED SUITABLE OPPORTUNITY AND THEY SHALL EQUALLY COOPERATE AND SHALL SUBMIT NECES SARY EXPLANATION/INFORMATION/DOCUMENTS AS AVAILABLE AND REQUIRED BY THE LD CIT(A). 2.17 WITH THE ABOVE DIRECTIONS, WE SET-ASIDE THE MA TTER TO THE FILE OF THE LD CIT(A) FOR A FRESH EXAMINATION AND THE APPEAL OF TH E REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 2.18 WE NOW REFER TO THE DECISION OF THE HONBLE RA JASTHAN HIGH COURT IN CASE OF SMT. ANITA CHOUDHARY IN APPEAL NO. 289/2010 VIDE ORDER DATED 14.10.2011 WHERE THE APPEAL OF THE REVENUE WAS DISM ISSED IN LIMINE AS NO SUBSTANTIAL QUESTION OF LAW WAS INVOLVED. THE RELE VANT FINDINGS OF THE HONBLE HIGH COURT ARE AS UNDER: IN OUR OPINION, THEREFORE, ONCE THE CIT(A) AND TRI BUNAL ACCEPTED THE FACTUAL EXPLANATION OF ASSESSEE AND ACCORDINGLY, DE LETED IN PART THE ADDITIONS IN QUESTION MADE BY AO IN EXERCISES OF I TS APPELLATE DISCRETIONARY POWERS, THEN IT WOULD NOT INVOLVE A NY SUBSTANTIAL ISSUE OF LAW AS SUCH. IN OTHER WORD, THIS COURT IN ITS AP PELLATE JURISDICTION UNDER SECTION 260A IBID, WOULD NOT AGAIN DENOVO HOLD Y ET ANOTHER FACTUAL INQUIRY WITH A VIEW TO FIND OUT AS TO WHETHER EXPLA NATION OFFERED BY ASSESSEE AND WHICH FOUND ACCEPTANCE TO THE TRIBUNA L IS GOOD OR BAD, OR WHETHER IT WAS RIGHTLY ACCEPTED, OR NOT. IT IS ONL Y WHEN THE FACTUAL FINDING RECORDED HAD BEEN ENTIRELY DEHORS THE SUB JECT, OR WHEN IT HAD BEEN BASED ON NO REASONING, OR WHEN IT HAD BEEN B ASED ON ABSURD REASONING TO THE EXTENT THAT NO PRUDENT MAN OF A VERAGE JUDICIAL ITA NO.680 /JP/12 & 784/JP/13 ITO, KISHANGARH VS. SMT. SAROJDEVI GRG, KISHANGARH 17 CAPACITY COULD HAVE EVER REACHED TO SUCH CONCLUSION , OR WHEN IT HAD BEEN FOUND AGAINST ANY PROVISION OF LAW, THEN A CASE FOR FORMULATION OF ANY SUBSTANTIAL QUESTION OF LAW ON SUCH FINDING CA N BE SAID TO ARISE. SUCH IS NOT THE CASE HERE ON FACTS. THAT APART, T HE APPEAL DOES NOT INVOLVE ANY INTERPRETATION OF SEC./RULE OR CBDT CI RCULAR, WHICH CAN BE TERMED AS INVOLVE ANY SUBSTANTIAL QUESTION OF LAW . INDEED IT WAS NOT SO DISPUTED ON THIS ISSUE BY LEARNED COUNSEL FOR THE A PPELLANT. IN VIEW OF FOREGOING DISCUSSION, WE FIND NO MERIT IN THE APPEAL THAT DOES NOT INVOLVE ANY SUBSTANTIAL QUESTION OF LAW WITHIN THE MEANING OF SEC. 260-A OF THE INCOME TAX ACT. THE APPEAL THUS FAIL S AND IS ACCORDINGLY DISMISSES IN LIMINE. IT WILL THEREFORE BE RELEVANT TO REFER TO THE FACTU AL FINDINGS OF THE TRIBUNAL IN ITA NO. 773/JP/2009 VIDE ITS ORDER DATED 07.05.2010 WHICH ARE REPRODUCED AS UNDER: WE HAVE HEARD BOTH THE PARTIES. THE TRIBUNAL VIDE ORDER DATED 29 TH MAY. 2009 IN THE CASE OF SHRI RAM SWAROOP IN ITA NO.113/ JP/2009 FOR THE A.Y. 2005- 06 HAD AN OCCASION TO CONSIDER THE CASH DEPOSITS O F RS.22.86 LAKHS MADE IN THE ACCOUNT OF SHRI RAM SWAROOP IN IDBI BANK. THE D EPOSITS WERE SIMILAR OF THE NATURE AS ARE AVAILABLE IN THIS CASE. THE TRIBUN AL AFTER CONSIDERING THE FACTS OF THE CASE HELD THAT INCOME OF RS.1.25. LACS TO BE ESTIMATED AND ACCORDINGLY DIRECTED THE AO TO ADD THE SAME OF RS. 1.25 LACS AS AGAINST CASH DEPOSIT DURING THE ENTIRE YEAR. THE LD. AR HAS FILED BEFORE US T HE COPY OF THE BANK ACCOUNT. THE COPY OF THE BANK ACCOUNT CONTAINS 9 PAGES. THE RE ARE NUMBER OF ENTRIES IN EACH MONTH. THE MAXIMUM CREDIT BALANCE IN THE BAN K ACCOUNT IS TO THE EXTENT OF RS.1,51,905/- AS ON 11.08.2004. THE MINIMUM BA LANCE IS OF RS.563/-. THE CREDIT BALANCE AS ON 31.03.2004 IS RS. 56,558/- WH ILE CREDIT BALANCE AS ON31.03.2005 IS RS.566/-. THIS SHOWS THAT THE AMOU NT DEPOSITED DURING THE YEAR IS LESS AS COMPARED TO THE WITHDRAWAL MADE DUR ING THE YEAR. THIS IS NOT THE CASE OF THE REVENUE THAT WITHDRAWALS MADE IN TH IS ACCOUNT HAVE BEEN UTILISED ELSEWHERE. IN CASE THE AMOUNTS HAVE BEEN DEPOSITED BY THE ASSESSEE IN THE BANK ACCOUNT THEN REVENUE IS REQUIRED TO CON SIDER THE AVAILABILITY OF SUCH DEPOSITS FROM THE WITHDRAWALS MADE FROM SUCH BANK A CCOUNT. IT IS TRUE THAT THE ASSESSEE HAS NOT BEEN ABLE TO GIVE THE REQUIRED DETAILS BECAUSE SUCH DETAILS HAVE NOT BEEN KEPT BY THE ASSESSEE. UNDER SUCH CI RCUMSTANCES, ONE HAS TO ITA NO.680 /JP/12 & 784/JP/13 ITO, KISHANGARH VS. SMT. SAROJDEVI GRG, KISHANGARH 18 CONSIDER THE TOTALITY OF THE CIRCUMSTANCES AND ACC ORDINGLY ONE WILL HAVE TO CONSIDER INCOME PORTION FROM THE TURNOVER AS MENTI ONED IN THE BANK ACCOUNT. IT IS AN ACCEPTED POSITION THAT THE ASSESSEE IS DOI NG THE BUSINESS IN MARBLE AND THE ASSESSEE IS NOT HAVING ANY OTHER SOURCE OF INCO ME. ONCE THE ASSESSEE HAS OFFERED AN EXPLANATION AND THE REVENUE HAS NOT ESTA BLISHED THAT EXPLANATION IS FALSE THEN ONE WILL HAVE TO CONSIDER THE INCOME GEN ERATED FROM THE TURNOVER AS IN THE BANK ACCOUNT. IT IS TRUE THAT THE ASSESSEE HAS SHOWN GROSS PROFIT IN THE MARBLE BUSINESS AND THE LD. CIT(A) HAS PARTLY UPHEL D THE ADDITION BY APPLYING THE GROSS PROFIT RATE OF 8.78%. WE FEEL THAT IN C ASE WHERE FUNDS ARE RECEIVED FOR THE PURCHASE OF MARBLE AND THE ASSESSEE HAS TO RENDER THE SERVICES FOR PURCHASES OF MARBLE AND TRANSPORTATION THEN THE GR OSS PROFIT RATE WILL BE SLIGHTLY HIGHER AND WE FEEL THAT THE INCOME FROM TH E TURNOVER TO THE EXTENT OF RS. 25,20,272/- SHOULD BE ESTIMATED AT RS. 2.52 L ACS . AFTER CONSIDERING THE EXCESS INCOME DECLARED IN THE RETURN TO THE EXTENT OF RS. 2.10 LACS. THE BALANCE ADDITION WILL REMAIN TO THE EXTENT OF RS. 42,000/- AS AGAINST RS. 11,271/- CONFIRMED BY THE LD. CIT(A). THUS THE SOLITARY GRO UND OF THE REVENUE IS PARTLY ALLOWED. 2.19 IN OUR VIEW, THE ABOVE DECISION OF THE HONBLE RAJASTHAN HIGH COURT AND THE DECISION OF THE COORDINATE BENCH IN CASE OF SMT ANITA CHOUDHARY DOESNT SUPPORT THE CASE OF THE ASSESSEE. UNLIKE THE CASE OF THE ASSESSEE, IN THAT CASE, THE ASSESSEE WAS CARRYING ON THE MARBLE BUSINESS AN D SHE HAS REPORTED GROSS PROFIT WHICH WAS ENHANCED BY THE AO. LATER ON, THE TRIBUNAL ACCEPTED THE POSITION THAT THE ASSESSEE WAS CARRYNG ON THE BUSIN ESS OF MARBLE AND HAS NO OTHER SOURCE OF INCOME AND AN APPROPRIATE GROSS PRO FIT WAS DETERMINED. IN THE INSTANT CASE, THERE IS NO SUCH EXPLANATION BY T HE ASSESSEE THAT SHE WAS INVOLVED IN THE MARBLE TRADING OR ANY FINDING TO TH AT EFFECT BY THE AO OR THE LD CIT(A). IN OUR VIEW, THE DECISION IN CASE OF SMT A NITA CHOUDHARY WAS THEREFORE RENDERED IN A DIFFERENT FACTUAL SITUATION AND THUS DISTINGUISHABLE AND CANNOT BE OF ANY ASSISTANCE TO THE ASSESSEE. 2.20 HAVING CONSIDERED THE CONTENTIONS OF THE RIVAL PARTIES AND NOTING THAT THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE ARE PARI-MATERIA WITH THE FACTS AND CIRCUMSTANCES IN CASE OF SMT. KUSUM DEVI VIJAYV ARGIYA AND OTHERS, THE DECISION TAKEN BY THE COORDINATE BENCH (AND AUTHORE D BY ONE OF US) IN SMT. ITA NO.680 /JP/12 & 784/JP/13 ITO, KISHANGARH VS. SMT. SAROJDEVI GRG, KISHANGARH 19 KUSUM DEVI VIJAYVARGIYA AND OTHERS (SUPRA) SHALL AP PLY MUTATIS-MUTANDIS IN THE INSTANT CASE AS WELL AS IN ITA NO. 784/JP/13. 2.21 WE ACCORDINGLY SET-ASIDE THE MATTER TO THE FIL E OF THE LD CIT(A) FOR A FRESH EXAMINATION IN BOTH THESE CASES AND THE APPEAL FILE D BY THE REVENUE IN ITA NO. 680/JP/13 AND FILED BY ASSESSEE IN ITA NO. 784/JP/1 3 ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17/1 1/2016. SD/- SD/- ( A.D.JAIN ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 17/11/2016 PILLAI VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE INCOME TAX OFFICER, KISHANGARH 2. IZR;FKHZ@ THE RESPONDENT- SMT. SAROJ GARG, KISHANGARH 3. VK;DJ VK;QDR@ CIT AJMER 4. VK;DJ VK;QDRVIHY@ THE CIT(A)-AJMER 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 680/JP/2012 & 784/JP/13) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR