Smt. Jankibai Prakash Bajaj, Dhule V. ACIT, Dhule

ITA 70/PUN/2004

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 76195 (ITAT-PUNE)
• Duration Of Justice: 10 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 06-01-2014
• Assessment Year: misc
• Appeal Filed On: 12-01-2004
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: VERMA
• Keywords: Unexplained investment; Search and seizure; Competent authority; Block assessment
• Section: 143(3); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE BEFORE: SHRI G. S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO. 70/PN/2004 BLOCK YEAR : 1987 - 97 SMT. JANKIBAI PRAKASH BAJAJ, 5, BAJAJ PA LACE, AGRAWAL NAGAR, DHULE VS. ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE - 2(1), DHULE (APPELLANT) (RESPONDENT) PAN /GIR NO. J - 14 ITA NO. 225 /PN/20 04 BLOCK YEAR : 1987 - 97 DY. COMMISSIONER OF INCOME TAX, CIRCLE - 3(1), DHULE VS. SMT. JANKIBAI PR AKASH BAJAJ, 5, BAJAJ PALACE, AGRAWAL NAGAR, DHULE (APPELLANT) (RESPONDENT) PAN /GIR NO. J - 14 REVENUE BY: S MT. M.S. VERMA RESPONDENT BY: SHRI NIKHIL PATHAK DATE OF HEARING : 0 9 - 0 1 - 2014 DATE OF PRONOUNCEMENT : 27 - 0 2 - 2014 ORDER P ER R.S. PADVEKAR , JM : - THESE ARE TWO APPEALS, ONE BY THE ASSESSEE AND ANOTHER BY THE REVEN UE CHALLENG ING THE IMPUGNED ORDER OF THE LD. CIT(A) - II , AURANGABAD DATED 21 - 11 - 2003 FOR THE BLOCK PERIOD 01 - 04 - 1987 TO 10 - 0 7 - 1997 AND THESE APPEALS ARE ARISING OUT OF THE SE ARCH AND SEIZURE ACTION TAKEN AGAINST THE ASSESSEE U/S. 132(1) OF THE INCOME - TAX ACT. 2. WE FIRST TAKE THE ASSESSEES APPEAL BEING ITA NO. 70/PN/2004 AND THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS IN THE APPEAL: 1. THE LEARNED ACIT HAS ERRED IN NOT GIVING C REDIT OF RS.600000/ - TOWARDS THE COST OF CONSTRUCTION AND DECLARED BY THE ASSESSEE IN 2 ITA NO S. 70 & 225/PN/2004, SMT. JANKIBAI PRAKASH BAJAJ, DHULE HER VDIS DECLARATION. IN FACT, DISCLOSED INCOME OF RS.L234391/ - SHOULD HAVE BEEN CONSIDERED INSTEAD OF RS.634391/ - (REF. - PARA - 10 OF THE ASSESSMENT ORDER.) THEREFORE, P ROPER AMOUNT OF RS.1234391/ - SHALL BE DEDUCTED FROM TOTAL INCOME TO ARRIVE AT THE FIGURE OF UNDISCLOSED INCOME. 2. THE LEARNED ACIT AND HON. CIT [APPEALS] HAS ERRED IN LEVYING INCOME TAX RATE APPLICABLE TO THE DECLARED AMOUNT OF RS.600000/ - UNDER VDIS AT 60% INSTEAD OF 30%. ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE, INCOME TAX @ 30% SHOULD BE CHARGED ON THE DECLARED AMOUNT UNDER VDIS AS IT IS NOT UNDISCLOSED INCOME AS PRESUMED BY THE ASSESSING OFFICER. 3. THE LEARNED ACIT HAS ERRED IN NOT GIVING CREDIT TO T HE TAXES OF RS.180000/ - PAID UNDER VDIS. IN FACT THE MONEY IS LYING WITH THE DEPARTMENT. 3. THE FACTS WHICH REVEALED FROM THE RECORD ARE AS UNDER. THE ASSESSEE IS AN INDIVIDUAL AND IS HAVING INCOME FROM PROPERTY, TRUCK PLYING BUSINESS AND ALSO AGRICULT URAL INCOME. THERE WAS A SEARCH AND SEIZURE ACTION AGAINST THE ASSESSEE U/S. 132 OF THE INCOME - TAX ACT ON 10 - 07 - 1997. IN CONSEQUENCE OF THE SEARCH AND SEIZURE ACTION , THE ASSESSMENT OF THE ASSESSEE HAS BEEN FRAMED U/S. 158BC R.W.S. 143(3) OF THE INCOME - T AX ACT. IN RESPONSE TO THE NOTICE ISSUED TO THE ASSESSEE U/S. 158BC, THE ASSESSEE FILED THE RETURN OF INCOME DECLARING UNDISCLOSED INCOME OF RS.6,00,000/ - . IT WAS STATED THAT THE UNDISCLOSED INCOME DECLARED BY THE ASSESSEE WAS COVERED UNDER THE VDIS - 1997 WHICH WAS TOWARDS THE CONSTRUCTION OF COMPLEX BUT AS THERE WAS A SEARCH AND SEIZURE ACTION U/S. 132 , THE ASSESSEE WAS DENIED THE BENEFIT OF VDIS - 1997 SCHEME. IN THE DECLARATION MADE BY THE ASSESSEE IN THE VDIS WAS TREATED AS UNDISCLOSED INCOME. THE ASSE SSEE ALSO DECLARED THE SAID AMOUNT IN THE RETURN OF INCOME. THE ASSESSEES FIRST GROUND IS IN RESPECT OF NOT GIVING THE BENEFIT OF THE DECLA RATION MADE UNDER THE VDIS - 1997. THIS ISSUE HAS BEEN DEALT WITH BY THE LD. CIT(A) AS UNDER: 3 ITA NO S. 70 & 225/PN/2004, SMT. JANKIBAI PRAKASH BAJAJ, DHULE 6. THE LAST GROUND OF APPEAL RELATES TO THE AO FAILING TO DEDUCT THE AMOUNT OF RS.6 LACS INCURRED TOWARDS COST OF CONSTRUC TION AND DECLARED IN VDIS BY THE APPELLANT FROM THE TOTAL INCOME DETERMINED FOR THE BLOCK PERIOD. IT IS BEING SUBMITTED THAT THOUGH IT IS A MISTAKE APPAREN T FROM RECORD THE MATTER SHOULD BE CONSIDERED IN APPEAL. IT IS NOTED THAT IN THE RETURN U/S. L58BC OF THE IT ACT THE APPELLANT DECLARED A TOTAL INCOME OF RS.12,34,391/ - WHICH INCLUDED AN AMOUNT OF RS.8,32,098/ - FOR A.Y. 96 - 97. THIS AMOUNT OF RS.8,32,098/ - FURTHER INCLUDED AN AMOUNT OF RS.6 LACS DECLARED BY THE APPELLANT IN VDIS. WHILE COMPUTING THE UNDISCLOSED INCOME THE AO HAS IGNORED THIS AMOUNT OF RS.6 LACS AND THEREBY INCREASED THE UNDISCLOSED INCOME OF THE APPEL LANT. THIS ACT OF AO HAS BEEN CHALLENGED IN APPEAL. 6.1. IT IS OBVIOUS THAT THE AMOUNT OF RS.6 LACS WAS DECLARED IN VDIS AFTER THE SEARCH HAD ALREADY TAKEN PLACE AND THAT APPEARS TO BE THE REASON BEHIND THE COMPETENT AUTHORITY NOT ISSUING THE NECESSARY CERTIFICATE. THOUGH, THE APPELLANT HAS DI SCLOSED THIS AMOUNT IN THE RETURN OF INCOME, NO TAXES HAVE BEEN PAID ON THIS AMOUNT IN THE BLOCK RETURN. THE TAXES HAVE BEEN PAID ONLY UNDER VDIS. CONSEQUENTLY, I FEEL THAT THE AO WAS JUSTIFIED IN NOT TAKING THIS INCOME AS DISCLOSED INCOME FOR THE PURPOSE OF WORKING OUT THE TAX LIABILITY BECAUSE TAX IN THE RETURN OF INCOME U/S. 158BC OF THE IT ACT HAS TO BE CHARGED @ 60% WHEREAS THE APPELLANT HAS PAID NO TAXES AT ALL ON THIS AMOUNT OF RS.6 LACS IN THE BLOCK RETURN. THE TAXES PAID UNDER VDIS CANNOT BE GIVEN CREDIT IN THE BLOCK RETURN. THIS GROUND OF APPEAL IS THEREFORE REJECTED. 4. WE HAVE HEARD THE PARTIES. THE ASSESSEE HAS MADE THE DECLARATION UNDER THE VDIS - 1997 TOWARDS THE COST OF THE CONSTRUCTION OF COMPLEX TO THE EXTENT OF RS.6,00,000/ - . AS THE ASSES SEE WAS COVERED IN THE SEARCH AND SEIZURE OPERATION , T HE ASSESSEE WAS NOT GIVEN THE BENEFIT OF THE SAID DECLARATION AS THE CIT DECLINE D TO ISSUE THE CERTIFICATE ACCEPTING THE ASSESSEES DECLARATION . AS PER THE FACTS ON RECORD , THE ASSESSE HERSELF DECLARED RS.6,00,000/ - IN THE RETURN FILE D IN RESPONSE TO NOTICE U/S. 158 BC OF THE ACT . AS PER THE VDIS - 1997 SCHEME , THE BENEFIT OF SCHEME WAS DECLINED TO THE PERSONS AGAINST WHOM THE SEARCH AND SEIZURE ACTION 4 ITA NO S. 70 & 225/PN/2004, SMT. JANKIBAI PRAKASH BAJAJ, DHULE W AS TAKEN. IN OUR OPINION, THE LD. CIT(A) HAS RIGHTL Y DECLINED TO GIVE THE BENEFIT OF RS.6,00,000/ - WHICH WAS DECLARED BY THE ASSESSEE IN VDIS - 1997 AS THE SAID DECLARATION BECOME NON E ST DUE TO THE FACT THAT THE ASSESSE WAS COVERED IN THE SEARCH AND SEIZURE OPERATION U/S. 132 OF THE ACT. WE FIND NO REASON T O INTERFERE WITH THE ORDER OF THE LD. CIT(A) AS THERE WAS A SPECIFIC PROVISION IN THE VDIS - 1997 THAT THE BENEFIT WILL NOT BE AVAILABLE TO THOSE ASSESSEES WHO HAVE BEEN COVERED UNDER THE SEARCH AND SEIZURE ACTION U/S. 132 OF THE ACT. IN OUR OPINION THERE I S NO MERIT IN THE GROUND TAKEN BY THE ASSESSEE. ACCORDINGLY, GROUND NO. 1 IS DISMISS. 5. SO FAR AS THE GROUND NO. 2 IS CONCERNED IT IS IN RESPECT OF THE RATE OF TAX ON THE AMOUNT DECLARED BY THE ASSESSEE OF RS.6,00,000/ - IN THE VDIS - 1997. 6 . WE H AVE HEARD THE PARTIES. IT IS NOT IN DISPUTE THAT THE ASSESSEE HAD DECLARED RS.6,00,000/ - TOWARDS THE COST ON CONSTRUCTION IN THE VDIS - 1997 BUT THE ASSESSEE WAS NOT GIVEN THE BENEFIT OF THE SAID SCHEME AS THE ASSESSEE WAS SUBJECTED TO THE SEARCH AND SEIZUR E ACTION U/S. 132 OF THE ACT. IT IS TRUE THAT THE STATUTORY PROVISIONS ARE CONCERNED THE PRINCIPLES OF ESTOPPEL ARE NOT APPLICABLE BUT AT THE SAME TIME THE ASSESSEE LOST THE BENEFIT AS PER THE TERMS AND CONDITIONS OF THE VDIS - 1997 AS THERE WAS A SEARCH AN D SEIZURE ACTION. NOW THE CONTENTION OF THE ASSESSEE IS THAT THE AMOUNT OF RS.6,00,000/ - WHICH WAS DECLARED IN THE VDIS - 1997 SHOULD BE TAXED @ 3 0% INSTEAD OF 6 0 %, WE ARE UNABLE TO ACCEPT THE SAID PLEA OF THE ASSESSEE. ADMITTEDLY RS.6,00,000/ - IS COVERED IN THE ASSESSMENT FRAMED IN CON SEQUENCE U/S. 132(1) OF THE ACT MORE PARTICULARLY U/S. 158BC R.W.S. 143(3) HENCE, THE RATE APPLICABLE IS 60% AS RS.6,00,000/ - AS SAME IS TREATED AS UNDISCLOSED INCOME IN THE BLOCK PERIOD. THE DECLARATION UNDER THE VDIS - 1997 MADE BY THE ASSESSEE BECOME NONEST OR NOT VALID IN THE EYE OF LAW . S O THAT THE 5 ITA NO S. 70 & 225/PN/2004, SMT. JANKIBAI PRAKASH BAJAJ, DHULE AMOUNT OF THE NONEST DECLARATION SHOULD BE TAXED AT A PARTICULAR RATE OTHER THAN THE RATE OF TAX APPLICABLE TO THE BLOCK ASSESSMENT IS NOT ACCEPTABLE . WE FIND NO MERIT IN THE GROUND NO. 2 HENCE, GROUND NO. 2 IS DISMISS. 7 . SO FAR AS GROUND NO. 3 IS CONCE RNED, THE ASSESSEE HAS RAISED THE GRIEVANCE IN RESPECT OF THE AMOUNT OF RS.1,80,000/ - PAID ON TAX ON THE DECLARATION OF RS.6,00,000/ - UNDER THE VDIS - 1997AND THE CREDIT OF THE SAID TAX IS NOT GIVEN. SO FAR AS THIS PARTICULAR GRIEVANCE OF THE ASSESSEE IS CONCERNED THEN THE ASSESSEE HAS TO APPROACH THE PROPER FORUM AS ADMITTEDLY THE PAYMENT WAS NOT MADE AS AN ADVANCE TAX UNDER THE INCOME - TAX ACT OR SELF ASSESSMENT TAX BUT IT WAS THE SPECIFIC AMNESTY SCHEME DECLARED BY THE GOVT. OF INDIA AND NOT FORMATION UNDER THE INCOME - TAX ACT, 1961. IN OUR OPINION THIS IS NOT A FORUM WHERE THE ASSESSEE CAN SEEKING THE RELIEF . WE, ACCORDINGLY, DISMISS THE GROUND NO. 3. 8 . NOW WE TAKE UP THE R EVENUES APPEAL BEING ITA NO. 225/PN/2004. THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS IN THE APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(APPEALS - II), AURANGABAD ERRED IN RESTRICTING THE ADDITION TO RS.100000/ - AS AGAINST ADDITI ON MADE BY THE AO OF RS.400000/ - ON ACCOUNT OF MARRIAGE EXPENSES. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(APPEALS) ERRED IN DELETING THE ADDITION MADE BY THE AO AT RS.413500/ - ON ACCOUNT OF UNDERSTATEMENT OF PLOT VALUE. 9 . SO FAR A S GROUND NO. 1 IS CONCERNED, THE RELEVANT FACTS ARE DISCUSSED BY THE LD. CIT(A) AS UNDER: 5. GROUND MO.4 OF APPEAL RELATES TO AN ADDITION OF RS.4,00,000/ - ON A/C. OF MARRIAGE EXPENSES. IN THE COURSE OF SEARCH IN THE PRELIMINARY STATEMENT THE APPELLANT HAD STATED THAT SHE HAD INCURRED MARRIAGE EXPENSES TO THE TUNE OF RS.2 TO 3 LACS ON 6 ITA NO S. 70 & 225/PN/2004, SMT. JANKIBAI PRAKASH BAJAJ, DHULE MARRIAGE OF EACH OF HER TWO DAUGHTERS WHO WERE MARRIED ON 6 TH AND 8 TH FEB 1996. IN THE FINAL STATEMENT HOWEVER SHE STATED THAT THE EXPENSES WERE ABOUT RS.50,000/ - FOR EACH MA RRIAGE. DURING THE COURSE OF ASSTT. PROCEEDINGS THE TOTAL EXPENSES ON THIS A/C. WERE CLAIMED TO BE RS.2,81 ,000/ - . HOWEVER THERE WERE NO SUPPORTING BILLS, VOUCHERS ETC. NOR THE DETAILS WERE RELIABLE BECAUSE EVEN THE EXPENSE ON ACCOUNT OF PRINTING OF INVITA TION CARD WAS NOT INCLUDED THEREIN. THE APPELLANT STATED THAT THE ENTIRE EXPENSES ON THIS ACCOUNT WAS INCURRED BY HER SON WHO IS SEPARATELY ASSESSED TO INCOME - TAX AND HAS DECLARED AN AMOUNT OF RS.3 LAC UNDER VDIS THOUGH HE IS YET TO RECEIVE NECESSARY CER T IFICATE FROM THE COMPETENT AUTHORITY. THE AO THEREFORE DID NOT AGREE TO THIS SUBMISSION AND MADE AN ADDITION OF RS.4 LACS WHICH IS MATTER OF APPEAL BEFORE ME. 5.1. IN THE APPELLATE PROCEEDINGS IT IS BEING SUBMITTED THAT THERE WAS NO EVIDENCE TO SUGGEST THA T FIRSTLY THE EXPENSES CLAIMED BY THE APPELLANT DID NOT REPRESENT THE TOTAL EXPENSES INCURRED BY HER AND SECONDLY THEY WERE NOT INCURRED BY HER SON, WHO IS THE SENIOR MALE MEMBER AFTER THE DEATH OF HER HUSBAND. IT IS BEING FURTHER ARGUED THAT SHE COULD NOT UNDERSTAND THE IMPLI CATIONS OF ANY STATEMENT GIVEN AT THE BEGINNING OF THE SEARCH PARTICULARLY BECAUSE SHE WAS NOT CONVERSANT WITH TAXATION LAWS AND SHE WAS ALSO TO RECOVER BACK FROM THE INITIAL SHOCK OF THE SEARCH TAKING PLACE AT HER PREMISES. BY THE TI ME SHE RECOVERED FROM THE SHOCK, IN THE FINAL STATEMENT SHE CLARIFIED THE POSITION AND ESTIMATED THE EXPENSES AT RS.50,000/ - FOR EACH OF THE MARRIAGES. AT THE TIME OF FILING OF RETURN THE ENTIRE DETAIL WAS REWORKED OUT AND ACCORDINGLY HER SON, WHO HAD ACTU ALLY INCURRED THE EXPENDITURE, DECLARED AN AMOUNT OF RS.3 LACS UNDER VDIS. IN THE CIRCUMSTANCES, NO ADDITION IS CALLED FOR IN HER HANDS. 5.2. I HAVE CONSIDERED THE SUBMISSIONS. I FIND THAT NO ADDITION CAN BE MADE BASED MERELY ON THE PRELIMINARY STATEME NT OF THE APPELLANT RECORDED DURING THE COURSE OF SEARCH WHEN THE STATEMENT ITSELF HAS BEEN REBUTTED BY THE APPELLANT IN HER FINAL STATEMENT DURING THE COURSE OF SAME SEARCH. FURTHER, THERE IS NO EVIDENCE TO SUGGEST THAT ACTUAL EXPENSES ON THE MARRIAGE WER E MORE THAN WHAT HAS BEEN STATED BY THE APPELLANT. IN THE STATE MENT OF APPELLANT IS TO BE THE BASIS FOR THE ESTIMATING THE EXPENSES THERE IS NO REASON AS TO WHY PRELIMINARY STATEMENT MUST HAVE WEIGHTAGE OVER THE FINAL 7 ITA NO S. 70 & 225/PN/2004, SMT. JANKIBAI PRAKASH BAJAJ, DHULE STATEMENT GIVEN BY THE APPELLANT. I W OULD HOWEVER GO THUS FAR AND STOP THERE. THE APPELLANT HAS ADMITTED IN THE STATEMENT THAT SHE HAD INCURRED EXPENDITURE ON THE MARRIAGE OF HER TWO DAUGHTER. NOWHERE IN THE STATEMENT IT WAS STATED THAT THE EXPENSES WERE INCURRED BY HER SON. THIS APPEARS TO B E RATHER AN AFTERTHOUGHT. IN THE CIRCUMSTANCES, I FEEL THAT AN ADDITION OF RS.50,000/ - FOR EACH OF THE MARRAIGES I.E. RS.1,00,000/ - AS ADMITTED BY THE APPELLANT IN THE FINAL STATEMENT RECORDED U/S.132(4) OF THE IT ACT WILL BE REASONABLE IN THIS CASE. THE A DDITION IS THEREFORE RESTRICTED TO RS.1,00,000/ - TO WHICH SH. V H PATIL, ADVOCATE AND LEARNED AR HAS NO OBJECTION. 10 . WE HAVE HEARD THE PARTIES. WE ARE ALSO GONE THROUGH THE RECORD AVAILABLE BEFORE US AS WELL AS REASONS OF BOTH THE AUTHORITIES BELOW FOR MAKING THE ADDITIONS AND PARTLY SUSTAINING THE ADDITIONS. IT APPEARS THAT DURING THE COURSE OF SEARCH ACTION THE ASSESSEES STATEMENT WAS RECORDED . IN HER ORAL STATEMENT SOME AVERMENT WAS MADE BUT NO INCRIMINATING MATERIAL WAS FOUND TO CORROBORATE THE O RAL STATEMENT OF THE ASSESSEE WHICH WAS SUBSEQUENTLY RE TRACTED. THE ISSUE IS IN RESPECT OF EXPENDITURE INCURRED ON THE MARRIAGE OF TWO DAUGHTERS. THERE IS NO MUCH MORE DISCUSSION IN THE ASSESSMENT ORDER ALSO SAVE SOME DETAILS OF THE PARA NO. 9 . THE ASSE SSING OFFICER HAS MADE THE ADDITION ON THE BASIS OF HER ADMISSION WHICH IN WHICH IT WAS STATED TO BE BETWEEN 2 TO 3 LACS FOR EACH MARRIAGE. AS NOTED BY THE ASSESSING OFFICER IN HER FINAL STATEMENT THE ASSESSEE HAS STATED THAT THE EXPENSES WERE RS.50,000/ - FOR EACH MARRIAGE. WE FIND THAT THE ASSESSING OFFICER HAS MERELY ESTIMATED THE EXPENDITURE THE ASSESSING OFFICER HAS MADE THE REFERENCE OF ASSESSEES SON WHICH HAS GIVEN THE DECLARATION OF RS.3 LACS TOWARDS MARRIAGE EXPENSES UNDER VDIS - 1997. ON THE BASI S OF DECLARATION OF SON , THE ASSESSING OFFICER MADE THE ADDITION IN THE HANDS OF THE ASSESSEE. IN OUR OPINION THE SAID APPROACH IS ERRONEOUS BY THE ASSESSING OFFICER. THE LD. CIT(A) HAS TAKEN A REASONABLE APPROACH BY SUSTAINING THE ADDITION TO RS.50,000/ - TO EACH MA RRIAGE HENCE, NO INTERFERENCE IS CALLED 8 ITA NO S. 70 & 225/PN/2004, SMT. JANKIBAI PRAKASH BAJAJ, DHULE FOR AS IN THE VIEW OF LD. CIT(A) NO INCRIMINATING MATERIAL WAS FOUND TO SUPPORT THE CASE OF THE ASSESSING OFFICER. WE FIND NO MERIT IN THE GROUND NO. 1 HENCE, GROUND NO. 1 IS DISMISS. 1 1 . SO FAR AS GRO UND NO. 2 IS CONCERNED THE LD. CIT(A) HAS DISCUSSED THIS ISSUE AS UNDER: 3. THE SECOND GROUND OF APPEAL RELATES TO ADDITION OF RS.4,13,500/ - ON ACCOUNT OF UNDER STATEMENT OF VALUE OF PURCHASE OF PLOTS. THE AO NOTED THAT THE APPELLANT HAD PURCHASED ONE PL OT OF LAND ADMEASURING 55.60 SQ. M TRS. ON 21 - 06 - 1990 FOR RS.1,60 , 000/ - AND ANOTHER PLOT OF LAND ADMEASURING 34.50 SQ. MTR. ON 18 - 01 - 1994 FOR RS.1,89 ,000/ - . THE APPELLANT ENTERED INTO AN AGREEMENT FOR SALE OF THESE PROPERTIES WITH SH. RAMESH D DINDODIYA OF DHULE AT A TOTAL CONSIDERATION OF RS. 6 ,5 0,000/ - . T HE AGREEMENT TO SALE RELATED TO SALE OF THESE PROPERTIES AFTER DEMOLITION THE OLD STRUCTURE AND CARRYING OUT THE CONSTRUCTION. THE A.O. NOTED THAT THERE IS ALWAYS AN ELEMENT OF UNRECORDED AMOUNT BEING PAS SED ON IN THE PURCHASE OF SUCH PROPERTIES. HENCE, AFTER TAKING INTO ACCOUNT THE PURCHASE PRICE OF THESE PLOTS AND THE SALE PRICE AS PER AGREEMENT FOR SALE ETC. THE A.O. WORKED OUT THE PRICE AT WHICH THE APPELLANT SHOULD HAVE ACTUALLY PURCHASED THESE PLOTS OF LAND AS COMPARED TO THE PRICE RECORDED IN PURCHASE DEED. THE DIFFERENCE OF RS.4,13,500/ - ADDED TO THE TOTAL INCOME HAS BEEN CHALLENGED IN APPEAL BEFORE ME. 3.1. THE SUBMISSION OF THE APPELLANT IS IDENTICAL TO THE SUBMISSIONS MADE IN GROUND NO.1 OF APPEA L AND I CAN ONLY SAY THAT HERE AGAIN I AM TOTALLY IN AGREEMENT WITH THE SUBMISSIONS MADE. ONE IS AMAZED IN THE MANNER IN WHICH THE ADDITION HAS BEEN MADE. THERE IS SIMPLY NO EVIDENCE, DESPITE THE SEARCH, TO SUGGEST THAT ANY UNACCOUNTED MONEY PASSED HANDS IN THE PURCHASE OF PLOTS. THE AO RAISED HIS PRESUMPTION, WORKED OUT HIS OWN ESTIMATED PURCHASE PRICE AND DIFFERENCE IS ADDED TO THE TOTAL INCOME. THIS IS RATHER ARBITRARY AND THE ADDITION DESERVES TO BE DELETED. IN SUM AND SUBSTANCE THE LD.CIT(A) DELETED T HE ADDITION FOR THE ALLEGED UNACCOUNTED INVESTMENT. 9 ITA NO S. 70 & 225/PN/2004, SMT. JANKIBAI PRAKASH BAJAJ, DHULE 1 2 . WE HAVE HEARD THE PARTIES. THE DEPARTMENT DOES NOT CONTROVERT THE FINDING OF THE LD. CIT(A) THAT NO MATERIAL WAS FOUND TO SUPPORT THE CASE OF THE ASSESSING OFFICER. THE LAW IS WELL SETTLED THAT IF N O INCRIMINATING MATERIAL IS FOUND DURING THE COURSE OF SEARCH IN WHICH THE DEPARTMENT HAS FULLY ACCESS TO THE RESIDENCE AS WELL AS B USINESS PREMISES THEN ASSESSMENT SHOULD BE PASSED ONLY ON THE EVIDENCE WHICH IS COLLECTED OR INVESTIGATED BY THE DEPARTMENT. NOTHING IS THERE ON RECORD TO SUGGEST ANY EVIDENCE WAS FOUND TO SUPPORT THE CASE OF THE ASSESSING OFFICER. WE FIND NO MERIT IN THE GROUND NO. 2 TAKEN BY THE REVENUE, SAME IS DISMISS. 1 3 . IN THE RESULT, THE REVENUES AS WELL AS ASSESSEES APPEALS ARE DIS MISSED. PRONOUNCED IN THE OPEN COURT ON 27 - 02 - 201 4 SD/ - SD/ - ( G.S. PANNU ) ( R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER RK /PS PUNE , DATED : 27 TH FEBRUARY, 2014 COPY TO 1 ASSESSEE 2 DEPARTMENT 3 THE CIT(A) - II , AURANGABAD 4 THE CIT - II , AURANGABAD 5 THE DR, ITAT, A BENCH, PUNE . 6 GUARD FILE. //TRUE COPY// BY ORDER PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE