JAY PRAAKASH B SINGH, MUMBAI V. ACIT 24(2), MUMBAI

ITA 6884/MUM/2008

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 56215 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: J
• Next Hearing Date: 08-11-2011
• Assessment Year: 1995-1996
• Appeal Filed On: 03-12-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained investment; Unexplained expenditure; Business income; Business expenditure; Search and seizure; Loose papers; Onus to prove
• Section: 40A(3); 132

Judgement Text

1 JAY PRAKASH B SINGH IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI MUMBAI MUMBAI MUMBAI J JJ J BENCH BENCH BENCH BENCH MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI R K PANDA R K PANDA R K PANDA R K PANDA, ,, , AM & AM & AM & AM & SHRI SHRI SHRI SHRI VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM ITA NO. ITA NO. ITA NO. ITA NO. 6881 TO 6884/MUM/20 6881 TO 6884/MUM/20 6881 TO 6884/MUM/20 6881 TO 6884/MUM/2008 0808 08 (ASST YEAR (ASST YEAR (ASST YEAR (ASST YEAR 1991 1991 1991 1991- -- -92, 92, 92, 92,9 99 93 33 3- -- -94 TO 95 94 TO 95 94 TO 95 94 TO 95- -- -96) 96) 96) 96) JAY PRAKASH B SINGH CHANDRA VILLA CHIKUWADI NEAR MALWANI CHURCH MARVE ROAD MALAD (W) - MUMBAI VS THE ASST COMMR OF INCOME TAX 24(2), MUMBAI (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) PAN NO. PAN NO. PAN NO. PAN NO. AAHPS5099N AAHPS5099N AAHPS5099N AAHPS5099N ASSESSEE BY SH BHUPENDRA SHAH REVENUE BY SH P S SUNDER SINGH DT.OF HEARING 8 TH NOV 2011 DT OF PRONOUNCEMENT 21 ST DEC 2011 ORDER ORDER ORDER ORDER PER PER PER PER VIJAY PAL RAO VIJAY PAL RAO VIJAY PAL RAO VIJAY PAL RAO, , , , JM JMJM JM THESE APPEALS BY THE ARE DIRECTED AGAINST COMPOSI TE ORDER OF THE CIT(A) DATED 4 TH SEPT 2008 FOR THE ASST YEARS 1991-92, 1993-94 TO 1 995-96. 2 FOR THE ASST YEAR 1991-92, THE ASSESSEE HAS RAISE D THE FOLLOWING GROUNDS: I. IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE A ND ALSO IN LAW THE CIT(A] ERRED IN CONFIRMING THE DISALLOWANCE OF ` 45 ,000/-(` 125,000 70,000 10,000) - U/S 40A(3) IN RESPECT OF CASH PA YMENTS ABOVE ` 10,000/- BY DISREGARDING RULE 6DD (J) AND RELEVAN T CASE LAWS. 2. IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE A ND ALSO IN LAW THE CIT (A) ERRED IN REJECTING THE ALTERNATIVE ADDITION AL GROUND OF APPEAL THAT THE ASSESSING OFFICER ERRED IN TREATING INCOME FROM SALE OF AGRICULTURAL PLOT/LAND UNDER THE HEAD OF INCOME FRO M BUSINESS AS AGAINST THE CORRECT HEAD INCOME FROM CAPITAL GAIN. 3. IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE A ND ALSO IN LAW THE CIT[A] ERRED IN CONFIRMING THE ADDITION OF ` 11,500 /- BEING PROFIT @ 10% OF CONTRACT WORK ON ESTIMATED BASIS . 2 JAY PRAKASH B SINGH 3 GROUND NO.1 IS REGARDING DISALLOWANCE U/S 40A(3) OF THE I T ACT. THIS GROUND IS COMMON IN ALL THE APPEALS BEFORE US. 3.1 THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF PUR CHASE AND SALE OF PLOTS OF LAND. SEARCH AND SEIZURE OPERATION WAS CONDUCTED IN THE PREMISES ON 31/03/1995. THE ASSESSING OFFICER FOUND THAT THE AS SESSEE HAD MADE PAYMENTS IN CASH ABOVE RS.10,000/- AGAINST PURCHASE AND BROK ERAGE IN VIOLATION OF THE PROVISION OF SECTION 40A(3) OF THE IT, THE DETAILS OF WHICH ARE AS UNDER: ASSTG YEAR PURCHASE BROKERAGE TOTAL 1991-92 1,25,000/- NIL 1,25,000/- 1993-94 14,00,000/- 2,40,000/- 16,40,000/- 1994-95 15,10,334/- 1,67,466/- 16,77,800/- 1995-96 70,76,00/- 10.96,271/- 81,72,271/- 3.2 THE ASSESSING OFFICER ASKED THE ASSESSEE AS TO WHY THE AFORESAID SUM SHOULD NOT BE DISALLOWED U/S 40A(3) OF THE I T ACT. THE ASSESSEE FILED ITS EXPLANATION VIDE LETTER DATED 9.3.1998 AND MAINLY C ONTENDED THAT THE OBJECT OF PROVISIONS OF SEC. 40A(3) IS TO CHECK TAX EVASION A ND WHEN THE GENUINENESS OF THE PAYMENT IS NOT DOUBTED THEN, IN VIEW OF CBDT CI RCULAR NO. 220 DATED 31.5.1977, THE ASSESSING OFFICER SHOULD TAKE A PRA CTICAL APPROACH TO THE PROBLEM AND THE HARDSHIP OF THE ASSESSEE. THE ASSES SING OFFICER WAS NOT IMPRESSED WITH THE EXPLANATION GIVEN BY THE ASSESSE E AND HELD THAT THE PAYMENT FOR THE PURCHASE OF STOCK-IN-TRADE OR RAW MATERIAL ETC., ALSO COME WITHIN THE SWEEP OF SECTION 40A(3). HE HAS RELIED UPON THE DE CISION OF THE HONBLE SUPREME COURT IN THE CASE OF GIRDHARLAL GOENKA VS CIT REPORTED IN 18 ITR 17. ACCORDINGLY, THE ASSESSING OFFICER DISALLOWED THE A BOVE SAID PAYMENT U/S 40A(3) OF THE I T ACT. 3 JAY PRAKASH B SINGH 4 ON APPEAL, THE CIT(A) DELETED THE ADDITION OF THE S UMS PAID UPTO TO RS. 10,000/- BUT CONFIRMED THE DISALLOWANCE OF THE REMAINING AMOUNTS. 5 BEFORE US, THE LD AR OF THE ASSESSEE HAS SUBMITTE D THAT THE PROVISIONS OF SEC. 40A(3) IS TO CHECK EVASION OF TAXES SO THAT T HE PAYMENT IS MADE FROM THE DISCLOSED SOURCES AND TO CURB FLOW OF BLACK MONEY. THE RULE 6DD(J) HAS ILLUSTRATED SOME OF THE CIRCUMSTANCES IN WHICH THE CONDITIONS LAID DOWN UNDER THE SAID LAW WOULD BE APPLICABLE BUT IT DOES NOT COVER ALL THE CIRCUMSTANCES. THEREFORE, WHEN THE ASSESSEE HAS EXPLAINED AND ESTA BLISHED THAT THE PAYMENTS EXCEEDING RS. 10,000/- ARE GENUINE AND IDENTITY OF THE PAYEE IS NOT DOUBTED THEN THE DEDUCTION SHOULD NOT BE DISALLOWED SIMPLY ON TH E GROUND THAT THE PAYMENT WAS MADE IN CASH. HE HAS REFERRED THE CIRCULAR NO. 220 DATED 31.5.1997 AND SUBMITTED THAT THIS CIRCULAR HAS CLARIFIED THAT THE PROVISIONS OF SEC 40A(3) AND RULE 6DD (J) ARE NOT EXHAUSTIVE BUT ONLY ILLUSTRAT IVE AND WHERE THE TRANSACTION IS GENUINE, DEDUCTION SHOULD BE ALLOWED BY CONSIDERIN G THE BUSINESS EXPEDIENCY AND THE FACTS OF THE CASE. THE LD AR HAS FURTHER C ONTENDED THAT THE BUSINESS EXPENDITURE CANNOT BE DISALLOWED U/S 40A(3) ON THE BASIS OF ASSESSMENT OF UNDISCLOSED INVESTMENT. IT WAS FURTHER CONTENDED T HAT THE ASSESSING OFFICER HAS NOT BROUGHT ANY MATERIAL ON RECORD TO SHOW THAT THE PURCHASE AND SALE PRICE OF THE LAND IS NOT GENUINE; THEREFORE, IN VIEW OF THE PROVISIONS OF SEC 40A(3) R.W.R 6DD(J), NO DISALLOWANCE IS CALLED FOR. HE HAS RAILE D UPON THE DECISIONS OF THE TRIBUNAL IN THE CASE OF SHARMA ASSOCIATES VSACIT RE PORTED IN 54 TTJ 207(PUNE)TM) AND THE DECISION OF THE HONBLE ORIS SA HIGH COURT IN THE CASE OF CIT V. ALOO SUPPLY CO. REPORTED IN 121 ITR 680. 5.1 ON THE OTHER HAND, THE LD DR HAS SUBMITTED THAT THE TRANSACTIONS OF RECEIPTS AND PAYMENTS IN CASH WERE FOUND IN THE SEA RCH AND SEIZURE ACTION U/S 132 IN THE CASE OF THE ASSESSEE ON 31.3.1995. THE A SSESSING OFFICER HAS MADE 4 JAY PRAKASH B SINGH THE ADDITION ON THE BASIS OF SEIZED MATERIAL AND TH EREFORE, IT CANNOT BE SAID THAT THE RECEIPTS AND THE PAYMENTS WERE GENUINE. HE HA S FURTHER SUBMITTED THAT THE ASSESSEE HAS NOT BROUGHT ANY MATERIAL ON RECORD TO SHOW THE COMPELLING CIRCUMSTANCES UNDER WHICH THE ASSESSEE HAD NO OPTIO N BUT TO MAKE AND RECEIVE THE PAYMENTS IN CASH. THE ASSESSEE HAS FAILED TO SH OW THE EXISTENCE OF EXCEPTIONAL CIRCUMSTANCES AS PER RULE 6DD(J). THE A SSESSEE HAS SHOWN THESE RECEIPTS AND PAYMENTS AS BUSINESS INCOME IN THE P&L ACCOUNT FILED WITH THE RETURN OF INCOME AND NOT AS AN INVESTMENT IN AGRICU LTURAL LAND. HE HAS RELIED UPON THE ORDERS OF THE LOWER AUTHORITIES. 6 WE HAVE CONSIDERED THE RIVAL CONTENTION AND CAREF ULLY PERUSED THE RELEVANT MATERIAL ON RECORD. THE ASSESSEE HAS MAINL Y CONTENDED THAT WHEN THE PAYMENTS AND TRANSACTIONS ARE GENUINE AND THE IDENT ITY OF THE PAYEE IS NOT DOUBTED THEN THE DEDUCTION SHOULD NOT BE DISALLOWED SIMPLY ON THE GROUND THAT THE PAYMENT WAS MADE IN CASH. IT IS PERTINENT TO N OTE THAT ALL THESE TRANSACTIONS CAME INTO LIGHT DURING THE COURSE OF SEARCH ACTION AND THE ASSESSING OFFICER HAS MADE THE ADDITIONS AND DISALLOWANCES ON THE BASIS O F SEIZED MATERIAL. 6.1 EVEN OTHERWISE, THE ARGUMENTS ADVANCED BY THE A SSESSEE ARE LEGAL IN NATURE, WHICH CAN BE APPLIED ON THE FACTS OF THE CA SE FALLS UNDER THE EXCEPTIONAL CIRCUMSTANCES AS PROVIDED UNDER THE RULE 6DD(J) OF THE I T RULES. WHEN THE ASSESSEE HAS NOT BROUGHT OUT A CASE FALLING UNDER T HE EXCEPTION AS STIPULATED IN RULE 6DD(J), THEN THE LEGAL PROPOSITION WOULD NOT H ELP THE CASE OF THE ASSESSEE. IN THE ABSENCE OF ANY MATERIAL TO ESTABLISH THAT DU E TO COMPELLING CIRCUMSTANCES THE ASSESSEE PAID THE SUM IN CASH, THE CONTENTIONS RAISED BY THE ASSESSEE CANNOT BE ACCEPTED. SINCE THE PAYMENTS WERE MADE F OR PURCHASE OF PLOT OF LAND; THEREFORE, IN THE ABSENCE OF PRIMARY DOCUMENTS OF P URCHASE AND SALE, THE CONTENTION OF THE ASSESSEE IS NOT SUPPORTED BY THE RELEVANT EVIDENCE OR MATERIAL. 5 JAY PRAKASH B SINGH WHEN THE ASSESSEE HAS FAILED TO ESTABLISH OR MAKE O UT A CASE, FALLS UNDER THE EXCEPTION, AS PROVIDED UNDER RULE 6DD(J), THEN WE D O NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE CIT(A), QUA, THIS I SSUE. 7 GROUND NO.2 IS REGARDING ALTERNATIVE CLAIM OF THE ASSESSEE AS INCOME FROM SALE OF AGRICULTURAL PLOTS SHOULD BE TREATED AS CAP ITAL GAINS AND NOT BUSINESS INCOME. 8 WE HAVE HEARD THE LD AR OF THE ASSESSEE AS WELL A S THE LD DR AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THIS I SSUE WAS RAISED BY THE ASSESSEE AS AN ADDITIONAL GROUND BEFORE THE CIT(A) AND CLAIMED THAT THE AMOUNTS RECEIVED IN CASH AGAINST THE SALE SHOULD BE ASSESSED AS CAPITAL GAIN AND NOT AS BUSINESS INCOME; THEREFORE, TO THE EXTEN T OF SALE PROCEEDS, THE PROVISIONS OF SEC. 40A(3) ARE NOT APPLICABLE. THE A SSESSEE CONTENDED THAT WHEN THE PURCHASE AND SALE OF LAND WAS FOR INVESTMENT PU RPOSES THEN NO DISALLOWANCE CAN BE MADE U/S 40A(3) AS THE PROVISIONS OF SEC. 40 A(3) ARE NOT APPLICABLE FOR CAPITAL GAIN/INVESTMENT. 8.1 IT IS TO BE NOTED THAT RIGHT FROM THE BEGINNING THE ASSESSEE TOOK THIS STAND THAT THE CASH PAYMENTS FOR THE PURCHASE OF PLOT OF LAND WAS IN THE ORDINARY COURSE OF BUSINESS OF THE ASSESSEE. FURTHER, THE AS SESSEE HIMSELF HAS SHOWN THE PLOTS OF LAND AS STOCK-IN-TRADE AND THE BUSINESS OF THE ASSESSEE IS PURCHASE AND SALE OF PLOTS OF LAND. THEREFORE, THE ASSESSEE CANN OT TAKE ENTIRELY OPPOSITE AND CONTRARY STAND TO DEFEND THE DISALLOWANCE U/S 40A(3 ). WHEN THE ASSESSEE HAS SHOWN THE PLOTS OF LAND AS STOCK-IN-TRADE, AND PURC HASE CONSIDERATION OF STOCK IN TRADE WAS BUSINESS EXPENDITURE; THEN HOW ON SALE OF SAME PLOTS OF LAND CAN BE CLAIMED AS CAPITAL GAIN ON INVESTMENT. 8.2 BEFORE THE ASSESSING OFFICER, THE ASSESSEE CONT ENDED THAT THE CASH PAYMENT WAS MADE IN THE ORDINARY COURSE OF BUSINESS . EVEN BEFORE THE CIT(A), 6 JAY PRAKASH B SINGH THE ASSESSEE HAS STATED IN THE STATEMENT OF FACTS T HAT THE PAYMENTS WERE MADE DURING THE COURSE OF ORDINARY BUSINESS; THEREFORE, THE ASSESSEE CANNOT ALLOW TO TAKE A TOTALLY OPPOSITE AND CONTRARY PLEA AS AGAI NST THE ADMITTED FACTS OF THE CASE. THE BUSINESS ACTIVITY INVOLVES TRANSACTIONS O F PURCHASE AND SALE AND ONLY ON COMPLETION OF BOTH THE TRANSACTIONS, THE OUTCOME IS KNOWN AS INCOME. WHETHER A PARTICULAR ACTIVITY OF TRADE/BUSINESS OR INVESTMENT DEPENDS ON THE INTENTION OF THE ASSESSEE AT THE TIME OF ANNOUNCEME NT OF THE ACTIVITY AND SUBSEQUENT CONDUCT AS WELL. THUS, AT THE TIME OF PU RCHASE OF PLOT THE ASSESSEE TREATED THE SAME AS STOCK IN TRADE, THEN AT THE TIM E OF SALE IT WOULD NOT CHANGE THE NATURE FROM STOCK IN TRADE TO INVESTMENT. ACCOR DINGLY, THE ALTERNATE PLEA TAKEN BY THE ASSESSEE IS DEVOID OF ANY MERIT AND DE SERVES TO BE DISMISSED. 9 GROUND NO.3 IS REGARDING ESTIMATION OF INCOME ON CONTRACT RECEIPT. THIS GROUND IS COMMON FOR THE AYS 1991-92, 1993-94 AND 1 995-96. 9.1 THE ASSESSING OFFICER FOUND FROM THE SEIZED MAT ERIAL THAT THE ASSESSEE WAS DOING SOME CONTRACT WORK ALSO; BUT NO PROFIT WA S SHOWN FROM THERE. THE ASSESSING OFFICER ASSESSED THE PROFIT AT 10% OF THE CONTRACT WORK. THE ASSESSEE CHALLENGED THE ESTIMATION OF PROFIT BEFORE THE CIT( A) AND SUBMITTED THAT THE ASSESSEE USED TO CONSTRUCT BOUNDARY WALLS ON THE PL OTS SOLD TO THE BUYERS ON THEIR REQUEST WITHOUT PROFIT. THE CIT(A) DID NOT F IND ANY MERIT IN THE CONTENTION OF THE ASSESSEE AND OBSERVED THAT NO BUSINESS MAN D OES WORK FOR OTHERS WITHOUT MOTIVE OF PROFIT. 10 BEFORE US, THE LD AR HAS SUBMITTED THAT THE ESTI MATION OF PROFIT AT 10% OF THE CONTRACT RECEIPT IS WITHOUT ANY BASIS. THE LD DR ON THE OTHER HAND RELIED UPON THE ORDERS OF THE LOWER AUTHORITIES AND SUBMIT TED THAT 10% PROFITS IS REASONABLE ESTIMATION IN THE LINE OF BUSINESS OF TH E ASSESSEE. 7 JAY PRAKASH B SINGH 11 WE HAVE CONSIDERED THE RIVAL CONTENTIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. IT IS AN UNDISPUTED FACT THAT THE ASSES SEE RECEIVED CONTRACT AMOUNT; BUT HAS NOT ADMITTED THE INCOME OUT OF THE RECEIPTS . THE CONTRACT RECEIPT CLAIMED BY THE ASSESSEE AGAINST JOB WORK OF BOUNDAR Y WALLS CONSTRUCTED ON THE PLOTS SOLD TO THE BUYERS WITHOUT ANY PROFIT. IT IS PERTINENT TO NOTE THAT WHEN THE ASSESSEE IS NOT MAINTAINING PROPER AND SEPARATE ACC OUNTS FOR JOB WORK THEN, IN THE ABSENCE OF ANY MATERIAL, THE CONTENTION OF THE ASSESSEE CANNOT BE ACCEPTED. SINCE THE ASSESSEE HAS FAILED TO PRODUCE ANY TANGIB LE MATERIAL IN SUPPORT OF THE CONTENTION; THEREFORE, IN OUR VIEW, THE ESTIMATION OF NET PROFIT AT 10% OF THE RECEIPTS IS REASONABLE. ACCORDINGLY, WE CONCUR WITH THE VIEW OF THE LOWER AUTHORITIES ON THIS ISSUE. 12 FOR THE ASSESSMENT YEAR 1994-95, THE ASSESSEE HA S RAISED ANOTHER GROUND AS UNDER: IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND ALS O IN LAW THE CIT(A) ERRED IN CONFIRMI9NG THE ADDITION OF `. 11,10,000/( ` 3,35,000 + 7,75,000) BEING ADVANCE RECEIVED AGAINST SALE FROM TWO PARTIE S. 12.1 THE ASSESSING OFFICER FOUND VARIOUS AMOUNTS AS CASH CREDIT IN THE BOOKS OF ACCOUNT OF THE ASSESSEE UNDER THE HEAD ADVANCE/DEP OSITS AGAINST SALES. THE DETAILS OF THE AMOUNTS GIVEN IN PARA 6 OF THE ASSES SMENT ORDER IS AS UNDER: 6 ON EXAMINATION OF THE BOOKS OF ACCOUNTS THE FOLLO WING AMOUNT IN CASH WERE FOUND TO BE CREDITED UNDER THE HEAD OF ADVANC ES/DEPOSITS AGAINST SALES AGAINST THE FOLLOWING NAMES: I) POOJARA RS. 3,35,000 II) JOSEPH RS. 7,75,000 12.2 THE ASSESSEE WAS ASKED BY THE ASSESSING OFFI CER TO PRODUCE ANY DOCUMENTARY EVIDENCE IN RESPECT OF THE RECEIPT OF T HESE AMOUNTS IN CASH AS OUTSTANDING AT THE END OF THE FINANCIAL YEAR. THE A SSESSEE SUBMITTED BEFORE THE 8 JAY PRAKASH B SINGH ASSESSING OFFICER THAT HE DID NOT HAVE CONFIRMATION FROM THESE PARTIES. HOWEVER, IT WAS STATED THAT THESE ENTRIES WERE REFLECTED IN THE SEIZED MATERIAL AND THE DOCUMENTS INVENTORIZED DURING THE COURSE OF SEARCH. THE ASSESSING OFFICER WAS OF THE VIEW THAT THE ASSESSEE HAS NOT DISCHARGED H IS ONUS AND SINCE THE ASSESSEE WAS UNABLE TO DISCHARGE ITS ONUS, THE ASSE SSING OFFICER MADE AN ADDITION OF `. 11,10,000 TO THE TOTAL INCOME OF TH E ASSESSEE FOR THE ASSESSMENT YEAR1994-95. 12.1 ON APPEAL, THE CIT(A) ISSUED REMAND ORDER FOR VERIFICATION OF THE PARTIES. SINCE THE PARTIES DID NOT APPEAR BEFORE THE ASSESSI NG OFFICER EVEN DURING THE COURSE OF REMAND PROCEEDINGS; THEREFORE, IN THE ABS ENCE OF THE PARTIES AS WELL AS BOOKS OF ACCOUNT, THE CIT(A) CONFIRMED THE ADDITION ON THIS ACCOUNT. 13 BEFORE US, THE LD AR OF THE ASSESSEE HAS SUBMITT ED THAT THE ASSESSEE HAS DISCHARGED ITS ONUS BY FURNISHING THE CORRECT ADDRE SSES OF THE PARTIES. AS SHRI POOJARA WAS NOT AVAILABLE AT THAT POINT OF TIME; TH EREFORE, IT WAS BEYOND THE CONTROL OF THE ASSESSEE TO PRODUCE HIM. HE HAS FURT HER SUBMITTED THAT THE ASSESSEE HAD FILED THE CONFIRMATION FROM MR JOSEPH REGARDING THE ADVANCE RECEIVED; THEREFORE, THE ASSESSEE HAS DISCHARGED IT S ONUS BY FURNISHING THE CORRECT ADDRESSES OF THE PARTIES. THE LD AR HAS FU RTHER SUBMITTED THAT THE AMOUNT HAS BEEN REPAID IN THE SUBSEQUENT YEAR ON AC COUNT OF CANCELLATION OF DEED. FURTHER, SINCE THE ASSESSEE IS HAVING DISPUTE WITH MR POOJARA; THEREFORE, HE HAS NOT COOPERATED WITH THE ASSESSEE. 13.1 THE LD AR OF THE ASSESSEE HAS FURTHER SUBMITTE D THAT MR POOJARA FILED A SUIT AGAINST THE ASSESSEE AND CLAIMED THE AMOUNT IN QUES TION FROM THE ASSESSEE, WHICH SHOWS THAT THE TRANSACTION IS GENUINE AND BEC AUSE OF THE DISPUTE BETWEEN THE PARTIES, HE DID NOT COOPERATE WITH THE ASSESSEE . 9 JAY PRAKASH B SINGH 13.2 ALTERNATIVELY, THE LD AR HAS SUBMITTED THAT TH E ASSESSEE CAN PRODUCE THE PARTIES, IF ONE MORE OPPORTUNITY IS GIVEN. 13.3 ON THE OTHER HAND, THE LD DR HAS SUBMITTED THA T DESPITE SUFFICIENT OPPORTUNITIES, THE ASSESSEE HAS NEITHER PRODUCED TH E PARTIES NOR ANY EVIDENCE TO PROVE THE CLAIM. HE HAS RELIED UPON THE ORDERS OF T HE LOWER AUTHORITIES. 14 WE HAVE CONSIDERED THE RIVAL CONTENTION AS WELL AS THE RELEVANT MATERIAL ON RECORD. UNDISPUTEDLY, THE ASSESSEE COULD NOT PR ODUCE THE PARTIES AS WELL AS RELEVANT MATERIAL/EVIDENCE IN SUPPORT OF THE CLAIM OF THE ASSESSEE. HOWEVER, WHEN THERE IS A DISPUTE AND LITIGATION BETWEEN THE PARTIES AND OTHER PARTY NAMELY SH POOJARA HAS FILED A SUIT AGAINST THE ASSE SSEE CLAIMING THE SAID AMOUNT DUE AGAINST THE ASSESSEE, THEN PRIMA FACIE IT IS RE LEVANT MATERIAL TO BE TAKEN INTO CONSIDERATION FOR DECIDING THE ISSUE. IN THE CASE OF OTHER PARTY, THOUGH THE ASSESSEE PRODUCED THE CONFIRMATION BUT COULD NOT PR ODUCE THE PARTY FOR EXAMINATION AS THE PARTY WAS NOT AVAILABLE AT THAT POINT TIME. 14.1 SINCE THE RELEVANT MATERIAL HAS NOT BEEN EXAMI NED BY THE LOWER AUTHORITIES, AS IT WAS NOT PRODUCED DUE TO NON AVA ILABILITY OF THE PARTIES; THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT TH E ASSESSEE SHOULD BE GIVEN ONE MORE OPPORTUNITY TO PROVE ITS CLAIM BY PRODUCIN G THE RELEVANT MATERIAL/EVIDENCE AS WELL AS PARTIES BEFORE THE AS SESSING OFFICER. ACCORDINGLY, WE SET ASIDE THIS ISSUE TO THE RECORD OF THE ASSESS ING OFFICER FOR RE-EXAMINATION AND ADJUDICATION OF THE SAME AS PER LAW AFTER CONSI DERING THE RELEVANT EVIDENCES AND EXAMINATION OF THE PARTIES. 14.2 WE MAY, NEEDLESS TO SAY THAT, IF THE AMOUNT IN QUESTION IS PART OF SUBJECT MATTER OF THE DISPUTE BETWEEN THE PARTIES AND THE O THER PARTY HAS MADE A CLAIM OF SUIT AMOUNT AGAINST THE ASSESSEE IN THE PENDING LITIGATION BEFORE THE COURT 10 JAY PRAKASH B SINGH THEN IT IS MATERIAL EVIDENCE IN SUPPORT OF THE CLAI M OF THE ASSESSEE. THE ASSESSING OFFICER IS DIRECTED TO EXAMINE THE SAME W HILE DECIDING THE ISSUE. 15 FOR THE AY 1995-96, APART FROM THE COMMON ISSUE ALREADY DISCUSSED, THE ASSESSEE HAS ALSO RAISED THE FOLLOWING GROUNDS: 1. IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE A ND ALSO IN LAW THE COMMISSIONER OF INCOME TAX [A] ERRED IN CONFIRMING ADDITION OF `. 50,000/- ON ACCOUNT OF INVESTMENT IN PLOT NO. 24 /1 UNDER THE HEAD UNDISCLOSED INVESTMENT. 2. IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE A ND ALSO IN LAW THE COMMISSIONER OF INCOME TAX [A) ERRED IN CONFIRMING ADDITION OF `. 25,000/- ON ACCOUNT OF INVESTMENT IN PLOT NO. 20 8/24 UNDER THE HEAD UNDISCLOSED INVESTMENT. 3. IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE A ND ALSO IN LAW THE COMMISSIONER OF INCOME TAX [A] ERRED IN CONFIRMING ADDITION OF `. 26,000/- ON ACCOUNT OF INVESTMENT IN CO-OPERATIV E SOCIETY. 4. IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE A ND ALSO IN LAW THE COMMISSIONER OF INCOME TAX [A] ERRED IN CONFIRMING ADDITION OF `. 1,16,524/- ONLY ON THE BASIS OF ENTRIES IN LOOSE PAPERS. 5. IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE A ND ALSO IN LAW THE COMMISSIONER OF INCOME TAX [A] ERRED IN CONFIRMING ADDITION OF `. 42,000/- ON ACCOUNT OF CASH DEPOSITS IN BANK ACC OUNT EVEN THOUGH ACTUALLY IT IS A CHEQUE DEPOSIT AND NOT CASH . 6, IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE A ND ALSO IN LAW THE COMMISSIONER OF INCOME TAX [A] ERRED IN CONFIRMING ADDITION OF `. 5,47,000/- UNDER THE HEAD UNEXPLAINED CASH DEPOS ITS UNDER THE HEAD ADVANCES/DEPOSITS. 7. IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE A ND ALSO IN LAW THE COMMISSIONER OF INCOME TAX [A] ERRED IN CONFIRMING ADDITION OF `. 2,00.000/- ON ACCOUNT OF UNEXPLAINED CASH CREDI T. 16 GROUND NOS 1 & 2 REGARDING UNDISCLOSED INVESTMEN T IN PLOT OF LANDS. 11 JAY PRAKASH B SINGH 16.1 THE ASSESSING OFFICER FOUND THAT AS PER THE AN NEXURE 6 TO THE PANCHNAMA DRAWN DURING THE COURSE OF SEARCH AN INVENTORY OF S TOCK OF LANDS AS ON 31.3.1995 WAS MADE. THE DETAILS OF THE ITEMS OF THE INVENTORY ARE AS UNDER: I) SURVEY NO.24/1 RS. 1,00,000 II) SURVEY NO. 207B RS. 5,00,000 III) SURVEY NO.208/24 RS. 25,000/- 16.2 THE ASSESSING OFFICER FOUND THAT THE ITEM AT S L NO.1 REFLECTED IN THE STOCK IN TRADE AT `. 7 LACS AS `, 50,000/- PAID AND THE BALANCE AMOUNT OF `. 6,50,000/- PAYABLE IN THE BALANCE SHEET. SINCE THE BALANCE A MOUNT PAID OF `. 50,000/- WAS NOT REFLECTED; THEREFORE, THE ASSESSING OFFICER BRO UGHT THE SAME TO TAX IN THE AY 1995-96. 16.3 SIMILARLY, ITEM NO.2 HAS ALSO REFLECTED AS ADV ANCE AGAINST THE PURCHASE AT `.5,11,000/-. THUS, THE ASSESSING OFFICER MADE AN A DDITION OF `. 25,000/- WITH RESPECT TO ITEM NO.3 AS THE SAME WAS NOT REFLECTED IN THE BALANCE SHEET. 16.4 ON APPEAL, THE CIT(A) CONFIRMED THE ADDITION M ADE BY THE ASSESSING OFFICER ON THIS ACCOUNT ON THE GROUND THAT THE ASSE SSEE FAILED TO PRODUCE ANY DOCUMENTARY EVIDENCE TO PROVE THE TRANSACTION DESPI TE THE REMAND PROCEEDINGS. 17 BEFORE US, THE LD AR OF THE ASSESSEE HAS SUBMITT ED THAT THE ASSESSEE PRODUCED ONE PARTY BUT COULD NOT PRODUCE THE OTHER PARTY. HE HAS FURTHER SUBMITTED THAT MR NAGENDRA SINGH WAS PRODUCED BEFOR E THE ASSESSING OFFICER AND IN HIS STATEMENT; HE HAS CONFIRMED THAT HE HAS GIVEN ADVANCE OF `. 50,000/- TO INVEST IN PLOT BEING AGRICULTURAL LAND. THIS PAR TY WAS NOT GIVEN THE PLOT AND THE MONEY IS RETURNED TO HIM. 17.1 AS REGARDS `. 25,000/-, THE LD AR OF THE ASSES SEE HAS SUBMITTED THAT SH VIMAL SINGH HAS MIGRATED FROM MUMBAI; THEREFORE, TH E SUMMON COULD NOT BE SERVED AND COULD NOT PRODUCED THIS PARTY BEFORE THE ASSESSING OFFICER. 12 JAY PRAKASH B SINGH 17.2 ON THE OTHER HAND, THE LD DR HAS SUBMITTED THA T WHEN THE ASSESSEE HAS FAILED TO PRODUCE ANY MATERIAL EVIDENCE IN SUPPORT OF THE CLAIM, THEN THE ADDITION MADE BY THE ASSESSING OFFICER IS JUSTIFIED. HE HAS SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. 18 WE HAVE CONSIDERED THE RIVAL CONTENTION AS WELL AS PERUSED THE RELEVANT MATERIAL ON RECORD. THE ASSESSEE HAD INVESTED `. 1 LACS IN PLOT NO.24/1; HOWEVER, HE HAS SHOWN INVESTMENT OF `. 50,000/- ONLY IN HIS ACCOUNT. SIMILARLY, THE INVESTMENT MADE BY THE ASSESSEE IN PLOT NO.208/24 A T ` 25,000/- WAS NOT REFLECTED IN THE ACCOUNT WHICH RESULTED AN ADDITION ON THIS AMOUNT AS UNEXPLAINED INVESTMENT. IN SUPPORT OF THE CLAIM, T HE ASSESSEE DID NOT PRODUCE ANY DOCUMENTARY EVIDENCE REGARDING THE RECEIPT OF A DVANCE FROM THE PARTIES FOR SALE OF THE PLOT. THEREFORE, IN THE ABSENCE OF ANY DOCUMENTARY EVIDENCE, THE EXPLANATION OF THE ASSESSEE DOES NOT INSPIRE CONFID ENCE AND ACCORDINGLY, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE CIT(A) ON THIS ISSUE. 19 GROUND NO. 6 IS REGARDING DEPOSIT IN COOPERATIVE SOCIETY. 19.1 THE ASSESSING OFFICER FOUND FROM THE SEIZED DO CUMENTS THAT THE ASSESSEE HAS PAID `. 26,000/- TO A COOPERATIVE SOCIETY. AS THE PAYMENT WAS NOT REFLECTED IN THE ACCOUNTS, THE ASSESSING OFFICER ADDED THE SA ME TO THE TOTAL INCOME OF THE ASSESSEE. THE ASSESSEE SUBMITTED BEFORE THE LOWER A UTHORITIES THAT THE SAID AMOUNT WAS COLLECTED FROM VARIOUS PERSONS FOR FORMA TION OF COOPERATIVE SOCIETY. THIS EXPLANATION DID NOT FIND FAVOUR WITH THE LOWER AUTHORITIES IN THE ABSENCE OF ANY EVIDENCE IN SUPPORT OF THE CLAIM OF THE ASSESSE E. 20 BEFORE US, THE LD AR OF THE ASSESSEE HAS SUBMITT ED THAT THE ASSESSEE HAS COLLECTED THE SAID SUM OF `. 26,000/- FROM VARIOUS PERSONS FOR FORMATION OF THE COOPERATIVE SOCIETY; THEREFORE, THE SAME WAS NOT RE CORDED IN THE BOOKS OF 13 JAY PRAKASH B SINGH ACCOUNT. HE HAS FURTHER SUBMITTED THAT DUE TO LACK OF TIME THE CONFIRMATION FROM THE PARTIES COULD NOT BE OBTAINED. 20.1 THE LD DR, ON THE OTHER HAND HAS SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. 21 WE HAVE CONSIDERED THE RIVAL CONTENTION AS WELL AS THE RELEVANT MATERIAL ON RECORD. IT IS PERTINENT TO NOTE THAT IF THE AMOU NT WAS DEPOSITED FOR FORMATION OF THE COOPERATIVE SOCIETY AND ON BEHALF OF THE MEM BERS OF THE SOCIETY, THEN IT CANNOT BE ADDED TO THE INCOME OF THE ASSESSEE. ON CE THIS FACT WAS FOUND THAT THE SAID DEPOSIT WAS MADE FOR FORMATION OF THE SOCI ETY; THEN IN THE ABSENCE OF CONCLUSIVE FINDING THAT THIS AMOUNT WAS DEPOSITED B Y THE ASSESSEE ON HIS BEHALF AND NOT ON BEHALF OF THE MEMBERS OF THE SOCIETY, TH E ADDITION IS NOT JUSTIFIED. ACCORDINGLY, WE DELETE THE ADDITION MADE BY THE LOW ER AUTHORITIES ON THIS ACCOUNT. 22 GROUND NO.7 IS REGARDING DISALLOWANCE OF EXPENDI TURE OF `. 1,91,524/-. 22.1 THE ASSESSING OFFICER FOUND FROM THE SEIZED D OCUMENTS THAT THE ASSESSEE HAD MADE CASH EXPENSES OF `. 1,91,524/- DURING T HE YEAR. THESE PAYMENTS WERE NOT ACCOUNTED IN THE BOOKS. ACCORDINGLY, THE ASSESSING OFFICER ADDED THE SAME AS UNEXPLAINED EXPENDITURE. 22.2 ON APPEAL, THE CIT(A) AFTER CONSIDERING THE UN ACCOUNTED PAYMENTS OF `.50,000/- AND `. 25,000/- MADE IN RESPECT OF PLOT NO.24/1 AND PLOT NO.208/24 DELETED THE ADDITION TO THE EXTENT OF `. 75,000/- A ND THE BALANCE OF `. 1,16,524/- WAS CONFIRMED. 23 BEFORE US, THE LD AR OF THE ASSESSEE HAS SUBMITT ED THAT THE SAID EXPENDITURE WAS INCURRED OUT OF THE DRAWINGS BY THE ASSESSEE; THEREFORE, NO ADDITION IS CALLED FOR. 14 JAY PRAKASH B SINGH 23.1 THE LD DR, ON THE OTHER HAND, HAS RELIED UPON THE ORDERS OF THE LOWER AUTHORITIES. 24 AFTER CONSIDERING THE RIVAL CONTENTION AS WELL A S THE RELEVANT MATERIAL ON RECORD, WE FIND THAT THE CIT(A) HAS ALREADY GIVEN T HE CREDIT OF THE AMOUNT AVAILABLE WITH THE ASSESSEE DUE TO ADDITION MADE ON ACCOUNT OF UNACCOUNTED RECEIPTS OF `. 50,000/- AND ` 25,000/- RESPECTIVELY IN RESPECT OF PLOT OF LANDS. SINCE THE REVENUE HAS NOT CHALLENGED THE SAID BENEF IT GIVEN BY THE CIT(A); THEREFORE, IN THE ABSENCE OF ANY MATERIAL BROUGHT O N RECORD BY THE ASSESSEE BEFORE US, IN RESPECT OF ITS EXPLANATION , WE DO NO T FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE CIT(A). ACCORDINGLY, WE UPHEL D THE ORDER OF THE CIT(A), QUA THIS ISSUE. 25 GROUND NO.8 IS REGARDING ADDITION ON ACCOUNT OF DEPOSITS IN BANK. 26.1 THE ASSESSING OFFICER FOUND THAT THERE WAS A C ASH DEPOSIT OF `. 42,000/- IN THE BANK ACCOUNT NO.6774 WITH ALLAHABAD BANK. SINCE THE SAID AMOUNT WAS NOT REFLECTED IN THE BOOKS OF ACCOUNT, THE ASSESSING OF FICER THEREFORE, ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. THE CIT(A ) CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER ON THE GROUND THAT T HE ASSESSEE COULD NOT EXPLAIN THE NATURE AND SOURCE OF THE TRANSACTION PROPERLY. 27 BEFORE US, THE LD AR OF THE ASSESSEE HAS SUBMITT ED THAT THE SAID DEPOSIT WAS NOT MADE IN CASH BUT IT WAS DEPOSITED BY CHEQUE ; THEREFORE, IT WAS NOT ACCOUNTED IN THE CASH BOOK AS IT WAS NOT A CASH TRA NSACTION. HE HAS FURTHER SUBMITTED THAT THE SAID AMOUNT WAS DULY ACCOUNTED I N THE PARTIES LEDGER ACCOUNT IN THE BOOKS OF ACCOUNT. THEREFORE, WHEN THE ASSESS EE HAS EXPLAINED THE SOURCE OF THE SAID DEPOSIT THROUGH CHEQUE AND THE ENTRIES RECORDED IN THE PARTIES LEDGER ACCOUNT, THEN, THE LOWER AUTHORITIES HAD COMMITTED AN ERROR IN NOT CONSIDERING AND APPRECIATING THIS FACT. THE LD AR HAS REFERRED THE DETAILS OF THE BANK ACCOUNT 15 JAY PRAKASH B SINGH AT PAGE 21 OF THE PAPER BOOK AND SUBMITTED THAT `. 42,000/- WAS DEPOSITED BY CHEAUE BY ONE SHRI RAJU SATYAL. HE HAS FURTHER SU BMITTED THAT WHEN THIS AMOUNT WAS CREDITED IN THE PARTIES LEDGER ACCOUNT I N THE BOOKS OF ACCOUNT, THEN THE ADDITION IS NOT JUSTIFIED. 27.1 THE LD DR, ON THE OTHER HAND, HAS RELIED UPON THE ORDERS OF THE LOWER AUTHORITIES AND SUBMITTED THAT THE ASSESSEE HAS FAI LED TO PRODUCE THE PARTIES LEDGER ACCOUNT BEFORE THE LOWER AUTHORITIES; THEREF ORE, THE ADDITION IS JUSTIFIED. 28 WE HAVE CONSIDERED THE RIVAL CONTENTION AS WELL AS THE RELEVANT MATERIAL ON RECORD. THOUGH, THE ASSESSING OFFICER MADE THE ADDITION ON THE GROUND THAT THIS CASH AMOUNT WAS DEPOSITED IN THE BANK ACCOUNT ; HOWEVER, THE CIT(A) HAS SPECIFICALLY MENTIONED IN THE ORDER THAT THE ASSESS EE HAS NOT PRODUCED THE COPY OF THE SAID LEDGER ACCOUNT TO SHOW THAT THE TRANSAC TION OF `. 42,000/- WAS ACCOUNTED THEREIN. THEREFORE, THE ISSUE IS SET ASI DE TO THE RECORD OF THE ASSESSING OFFICER TO VERIFY AND CONSIDER THIS ASPE CT AS WELL AS LEDGER ACCOUNT OF THE PARTIES AND THEN DECIDE THE ISSUE AFRESH AS PER LAW. 29 GROUND NO.9 IS REGARDING ADDITION ON ACCOUNT OF CASH DEPOSIT OF `. 5,47,000/-. 29.1 THE ASSESSING OFFICER FOUND FROM THE BOOKS OF ACCOUNT THAT AMOUNT OF `. 5,47,000/- WAS CREDITED IN THE NAME OF FIVE PERS ONS AS ADVANCES/DEPOSITS AGAINST SALES. ALL THESE AMOUNTS WERE CASH RECEIPTS . WHEN THE ASSESSEE FAILED TO FURNISH ANY CONFIRMATION FROM THE PARTIES, THE ASSE SSING OFFICER ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. 29.2 ON APPEAL, DURING THE REMAND PROCEEDINGS, SUMM ONSES WERE ISSUED TO ALL THE FIVE PERSONS ON THE ADDRESSES GIVEN BY THE ASSE SSEE; BUT THE SUMMONS WERE RETURNED BACK UN-SERVED. THEREAFTER THE ASSESSING O FFICER ASKED THE ASSESSEE TO 16 JAY PRAKASH B SINGH PRODUCE THE PARTIES. SINCE THE ASSESSEE DID NOT PRO DUCE THE PARTIES, THE CIT(A) CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICE R . 30 BEFORE US, THE LD AR OF THE ASSESSEE HAS SUBMITT ED THAT DURING THE REMAND PROCEEDINGS THE ASSESSEE HAS EXPLAINED TO THE SATIS FACTION OF THE ASSESSING OFFICER AND PRODUCED THE CONFIRMATION LETTERS OF VA RIOUS PARTIES. EVEN SOME OF THE PARTIES HAVE BEEN PRODUCED PERSONALLY. THE LD AR OF THE ASSESSEE HAS FURTHER SUBMITTED THAT THE SUMMON ISSUED TO SHARAWA N DADA WAS RETURNED BACK UNSERVED AS HE WAS NOT AVAILABLE AT THE GIVEN ADD RESS THE ASSESSEE TRIED TO TRACE THE PARTY BUT COULD NOT FIND HIM. 30.1 AS REGARD MR ANIL BUILDER, THE ASSESSEE PERS ONALLY APPROACHED THIS PARTY TO COMPLY THE SUMMONS ISSUED BY ASSESSING OFFICER A ND MR. ANIL PATEL HAS PERSONALLY ATTENDED AND COMPLIED THE SUMMON. THERE FORE, THE OBSERVATIONS OF THE ASSESSING OFFICER AND THE CIT(A) IS NOT INCORR ECT THAT THE THIS PARTY HAS NOT ATTENDED. 30.2 REGARDING THE SUMMONS ISSUED TO ARORA, THE LD AR HAS SUBMITTED THAT THE SAME WAS RETURNED BACK UNSERVED AS HE COULD NOT TRA CE THIS PARTY AT THE GIVEN ADDRESS. WHEREAS MR DINESH SHAH WAS PERSONALLY PROD UCED BEFORE THE ASSESSING OFFICER WHO HAS FILED COPY OF AGREEMENT IN SUPPORT OF ITS CLAIM AND HENCE, IT IS INCORRECT ON THE PART OF THE ASSESSING OFFICER TO M ENTION THAT THERE WAS NO COMPLIANCE FROM THIS PARTY TILL THE DATE OF REMAND REPORT. 30.3 REGARDING MR SHIVKUMAR BAJAJ, THE LD AR HAS SU BMITTED THAT THIS PARTY IS NO MORE ALIVE. FURTHER, IT IS SUBMITTED THAT MR. RA JESH SINGH, THE SON OF THE ASSESSEE HAS PERSONALLY APPROACHED HIS HEIRS AND OB TAINED HIS DEATH CERTIFICATE AND RELEVANT AGREEMENT TO SUPPORT THE TRANSACTION. THESE DOCUMENTS HAVE BEEN SUBMITTED PERSONALLY BY MR. RAJESH SINGH ALONG WITH MR. DINESH SHAH WAS 17 JAY PRAKASH B SINGH PERSONALLY PRODUCED BEFORE ASSESSING OFFICER. HENCE , IT IS INCORRECT ON THE PART OF THE ASSESSING OFFICER TO MENTION IN THE REMAND REPO RT THAT THERE WAS NO COMPLIANCE FROM THIS PARTY. 30.4 ON THE OTHER HAND, THE LD DR SUBMITTED THAT DE SPITE NUMBER OF OPPORTUNITIES GIVEN, THE ASSESSEE HAS NEITHER PRODU CED THE PARTIES NOR ANY EVIDENCE TO PROVE THE CLAIM OF THE ASSESSEE. HE HAS RELIED UPON THE ORDERS OF THE LOWER AUTHORITIES AND SUBMITTED THAT THE CIT(A) HAS CATEGORICALLY MENTIONED IN THE IMPUGNED ORDER THAT THE ASSESSEE HAS FAILED TO PROVE ITS CLAIM BY PRODUCING THE CONCERNED PARTIES OR ANY MATERIAL EVIDENCE. 35 WE HAVE CONSIDERED THE RIVAL CONTENTION AS WELL AS THE RELEVANT MATERIAL ON RECORD. THERE IS NO DOUBT THAT THE ASSESSEE COUL D NOT PRODUCE ANY EVIDENCE IN SUPPORT OF THE CLAIM AND IN THE MAJORITY OF THE CAS ES, THE CONCERNED PARTIES WERE NOT PRODUCED BEFORE THE ASSESSING OFFICER AND EVEN DURING THE REMAND PROCEEDINGS. THOSE PARTIES APPEARED BEFORE THE ASSE SSING OFFICER DURING THE REMAND PROCEEDINGS DID NOT PRODUCE THE RELEVANT DET AILS AND RECORD IN SUPPORT OR THE CLAIM OF THE ASSESSEE. WHEN SOME OF THE PAR TIES APPEARED BEFORE THE ASSESSING OFFICER, AS CLAIMED BY THE ASSESSEE, THEN COMPLETELY IGNORING THE SAME BY THE CIT(A) IS ALSO NOT JUSTIFIED. WE FURTH ER NOTE THAT THOUGH THE ASSESSEE PRODUCED SOME OF THE PARTIES BEFORE THE AS SESSING OFFICER DURING THE REMAND PROCEEDINGS; HOWEVER, THE SUPPORTING EVIDENC E HAS NOT BEEN PRODUCED. THEREFORE, IN THE INTEREST OF JUSTICE, WE GRANT ONE MORE OPPORTUNITY TO THE ASSESSEE TO PRODUCE THE PARTIES WITH EVIDENCE BEFOR E THE ASSESSING OFFICER IN SUPPORT OF THE CLAIM. ACCORDINGLY, WE SET ASIDE TH E ISSUE TO THE RECORD OF THE ASSESSING OFFICER FOR DECIDING THE SAME AFRESH AFTE R CONSIDERING THE EVIDENCES TO BE PRODUCED BY THE ASSESSEE. 36 GROUND NO.10 IS REGARDING ADDITION ON ACCOUNT OF CASH CREDIT OF `. 2 LACS. 18 JAY PRAKASH B SINGH 36.1 THE ASSESSEE HAS SHOWN A LOAN OF `. 2LACS FROM MR PUJARA. THE ASSESSING OFFICER ASKED THE ASSESSEE TO FILE THE CONFIRMATION THEREOF. THE ASSESSEE EXPRESSED ITS INABILITY TO DO SO. CONSEQUENTLY, THE ASSESSING OFFICER ADDED THE SAME AS UNEXPLAINED LOAN. 36.2 ON APPEAL, THE CIT(A) ISSUED REMAND ORDER. DUR ING THE REMAND PROCEEDINGS, THE ASSESSING OFFICER ISSUED SUMMONS T O MR PUJARA; BUT THE SAME WAS RETURNED BACK UN-SERVED. THEREFORE, THE ASSESS EE WAS ASKED TO PRODUCE THE PARTY IN PERSON. THE ASSESSEE HAS SHOWN ITS INABILI TY IN PRODUCING THE PARTY. ACCORDINGLY, THE CIT(A) CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER . 37 BEFORE US, THE LD AR OF THE ASSESSEE HAS SUBMITT ED THAT SHRI RAMESH PUJARA WAS AVAILABLE AT THE ADDRESS GIVEN BY THE AS SESSEE BUT BECAUSE OF THE DISPUTE BETWEEN THE ASSESSEE AND THE PARTY, HE DID NOT COOPERATE WITH THE ASSESSEE AND THEREFORE, THE ASSESSEE COULD NOT PROD UCE HIM BEFORE THE ASSESSING OFFICER. HENCE, IT WAS SUBMITTED THAT IN THESE CIRCUMSTANCES, IT IS BEYOND THE CONTROL OF THE ASSESSEE TO PRODUCE THE P ARTY IN PERSON. 37.1 ON THE OTHER HAND, THE LD DR HAS RELIED UPON T HE ORDERS OF THE LOWER AUTHORITIES AND SUBMITTED THAT WHEN THE ASSESSEE HA S FILED TO DISCHARGE ITS ONUS TO PROVE THE CLAIM THEN, THE ASSESSING OFFICER HAS RIGHTLY MADE THE ADDITION. 38 WE HAVE CONSIDERED THE RIVAL CONTENTION AS WELL AS PERUSED THE RELEVANT MATERIAL ON RECORD. AN IDENTICAL ISSUE HAS ALREADY BEEN DEALT BY US FOR THE AY 1994-95 WHEREIN WE SET ASIDE THE ISSUE TO THE RECOR D OF THE ASSESSING OFFICER. ACCORDINGLY, FOLLOWING THE SAME RATIO FOR THE AY 19 94-95, THE ISSUE FOR THE YEAR UNDER CONSIDERATION IS ALSO SET ASIDE TO THE RECORD OF THE ASSESSING OFFICER FOR RE- VERIFICATION AND ADJUDICATION IN ACCORDANCE WITH LA W. 19 JAY PRAKASH B SINGH 39 IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE FOR THE AY 1991-92 & 1993-94 ARE DISMISSED AND THOSE OF AY 1994-95 & 199 5-96 ARE PARTY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON THE 21 ST DAY OF DEC 2011. SD/ SD/ ( (( ( R K PANDA R K PANDA R K PANDA R K PANDA ) )) ) ACCOUNTANT MEMBER ( (( ( VIJAY PAL RAO VIJAY PAL RAO VIJAY PAL RAO VIJAY PAL RAO ) )) ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 21 ST DEC 2011 RAJ* RAJ* RAJ* RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI