JCIT (i/c), CHENNAI V. Sri V.Sankar, Vellore

ITA 707/CHNY/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61369 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-07-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 23-07-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 04-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR S MOHARANA
• Assessee Lawyers: A MAHESH
• Keywords: Unexplained investment
• Section: 69C; 143(3); 142(1); 153A; 234B; 69; 132; 15

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL B BENCH, CHENNAI. BEFORE DR. O.K. NARAYANAN, VICE-PRESIDENT & SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER I.T.A. NOS. 703, 704, 705, 706, 707, 708 AND 709/MD S/2012 ASSESSMENT YEARS: 2002-03, 03-04, 04-05, 05-06, 06- 07, 07-08 AND 08-09 & C.O. NOS. 85, 86, 87, 88, 89, 90 AND 91/MDS/2012 [IN I.T.A. NOS. 703, 704, 705, 706, 707, 708 AND 70 9/MDS/2012] THE JT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE IV (1), 46, MAHATMA GANDHI ROAD, NUNGAMBAKKAM, CHENNAI 34. VS. SHRI V. SANKAR, 54, THENNAMARAM STREET, VELLORE. [PAN:AARPS1155R] (APPELLANT) (RESPONDENT/CROSS OBJECTOR) REVENUE BY : DR. S. MOHARANA, CIT DR ASSESSEE BY : SHRI A. MAHESH, FCA DATE OF HEARING : 23.07.2012 DATE OF PRONOUNCEMENT : 23.07.2012 ORDER PER BENCH THESE SEVEN APPEALS FILED BY THE REVENUE AND THE SE VEN CROSS OBJECTIONS FILED BY THE ASSESSEE ARE DIRECTED AGAIN ST THE COMMON ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) I, CHENNAI DATED 25.01.2012 IN ITA NO. 224 TO 230/09-10 FOR THE ASSESSMENT YEARS 2 002-03 TO 2008-09. DR. S. MOHARANA, CIT DR REPRESENTED ON BEHALF OF THE REVENUE AND SHRI A. MAHESH, FCA REPRESENTED ON BEHALF OF THE ASSESSEE. 2. THE FIRST COMMON ISSUE IN THE GROUNDS OF APPEAL S OF THE REVENUE FOR I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NOS SS S. .. .703TO 709 703TO 709 703TO 709 703TO 709/M/ /M/ /M/ /M/12 & 12 & 12 & 12 & C.O.NOS. C.O.NOS. C.O.NOS. C.O.NOS. 85 TO 91/M/12 85 TO 91/M/12 85 TO 91/M/12 85 TO 91/M/12 2 ALL THE ASSESSMENT YEARS 2002-03 TO 2008-09 IS THAT THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN DELETING THE ADDITION MADE TOWARDS INADEQUATE DRAWINGS. 3. THE FACTS OF THE CASE ARE THAT THERE WAS A SEAR CH UNDER SECTION 132 IN THE PREMISES OF VELLORE INSTITUTE OF TECHNOLOGY ON 06.06.2007 AND AS PART OF THE SEARCH OPERATION, THE RESIDENCE OF THE ASSESSEE WAS ALSO COVERED UNDER SEARCH. A NOTICE UNDER SECTION 153(A) WAS ISSUED ON 20.10.2008 REQUIRING THE ASSESSEE TO FILE RETURNS OF INCOME FOR THE ASSE SSMENT YEARS 2002-03 TO 2007-08. A NOTICE UNDER SECTION 142(1) WAS ISSUED C ALLING FOR THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2008-09. THE ASSESSM ENTS WERE COMPLETED UNDER SECTION 153(A) READ WITH SECTION 143(3) FOR T HE ASSESSMENT YEARS 2002-03 TO 2007-08 AND ASSESSMENT WAS COMPLETED UND ER SECTION 143(3) OF THE ACT FOR THE ASSESSMENT YEAR 2008-09. WHILE COMP LETING THE ASSESSMENTS, THE ASSESSING OFFICER MADE FOLLOWING A DDITIONS TOWARDS INADEQUATE DRAWINGS: ASSESSMENT YEAR ADDITION MADE 2002-03 ` .78,672/ - 2003-04 ` . 78,672/- 2004-05 ` .90,324/ - 2005-06 ` .2,72,964/- 2006-07 ` .3,22,908/- 2007-08 ` .2,88,080/ - 2008-09 ` .2,74,560/- 4. ON APPEAL, THE COMMISSIONER OF INCOME TAX (APPE ALS) DELETED THE I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NOS SS S. .. .703TO 709 703TO 709 703TO 709 703TO 709/M/ /M/ /M/ /M/12 & 12 & 12 & 12 & C.O.NOS. C.O.NOS. C.O.NOS. C.O.NOS. 85 TO 91/M/12 85 TO 91/M/12 85 TO 91/M/12 85 TO 91/M/12 3 ADDITIONS AGAINST WHICH, THE REVENUE IS IN APPEAL B EFORE US. 5. THE COUNSEL FOR THE REVENUE SUPPORTED THE ORDER S OF THE ASSESSING OFFICER. 6. THE COUNSEL FOR THE ASSESSEE RELIED ON THE ORDE RS OF THE COMMISSIONER OF INCOME TAX (APPEALS). 7. THE ASSESSEE BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) SUBMITTED AS UNDER: (I) GENERALLY, UNDER THE HEAD DRAWINGS ALL PERSO NAL EXPENSES RELATING TO AN INDIVIDUAL ARE INCLUDED. HOWEVER, IN THE CASE OF THE APPELLANT, THE EXPENDITURE INCURRED BY THE APPELLANT FOR ELECTRICI TY, WATER TAX, ETC. HAVE BEEN SEPARATELY ACCOUNTED UPTO A.Y. 2004-05 UNDER THE HE AD DRAWINGS, THE APPELLANTS OTHER EXPENSES ONLY ARE TAKEN. THEREFOR E, THE DRAWINGS MAY APPEAR LOW UP TO A.Y. 2004-05, WHEREAS IN FACT THEY ARE NOT. (II) THE PLACES OF RESIDENCE OF THE APPELLANT, HIS FATHER AND HIS BROTHERS ARE AS UNDER: PERSON PLACE OF RESIDENCE SHRI G. V. VISHWANATHAN 54, THENNAMARAM STREET, VEL LORE SHRI V. SANKAR 54, THENNAMARAM STREET, VELLORE (STAYING WITH FATHER) SHRI V. SAMPATH GANDHI NAGAR, VELLORE SHRI V. SEKAR BANGALORE, NRI TILL 2007-08 SHRI V. SELVAM 54, THENNAMARAM STREET, VELLORE (STAYING WITH FATHER UPTO A.Y. 2004-05) FROM THE TABLE, IT CAN BE SEEN THAT THE APPELLANT STAYED WITH HIS FATHER SHRI G. VISHWANATHAN AND SHRI S. SELVAM, HIS BROTHER FRO M 2002-03 TO 2004-05. THE ASSESSING OFFICER WAS UNDER THE MISTAKEN IMPRES SION THAT THE THREE FAMILIES STAYED TOGETHER FOR ALL THE YEARS WHICH IS NOT CORRECT. (III) THERE ARE TWO FACTUAL ERRORS IN THE TABLE OF DRAWINGS IN PAGE 7 OF THE ORDER FOR 2002-03 WHICH ARE: I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NOS SS S. .. .703TO 709 703TO 709 703TO 709 703TO 709/M/ /M/ /M/ /M/12 & 12 & 12 & 12 & C.O.NOS. C.O.NOS. C.O.NOS. C.O.NOS. 85 TO 91/M/12 85 TO 91/M/12 85 TO 91/M/12 85 TO 91/M/12 4 (A) THE DRAWINGS ADMITTED FOR 2003-04 IS ` .2,14,809/- (WORKING OUT TO ` .17,901/- AS AVERAGE MONTHLY DRAWINGS) WHEREAS THE ASSESSING OFFICER HAS ADOPTED AN ERRONEOUS FIGURE OF ` .2,02,666/- (WHICH WORKS OUT TO ` .16,888/- OF AVERAGE MONTHLY DRAWINGS). (B) DRAWINGS FOR A.Y. 2007-08 AT ` .3,79,930/- AND ` .4,42,445/- FOR A.Y. 2008-09 RESPECTIVELY INCLUDES DRAWINGS OF ` .60,000/- AND ` .75,000/- RESPECTIVELY RELATING TO SHRI V. SEKAR WHO LIVES AT BANGALORE. BECAUSE OF INCLUSION OF SHRI V. SEKARS DRAWINGS IN THAT OF SHRI G. VISHWANATHAN AND SHRI V. SANKAR, THE DRAWINGS IN TH E POST SEARCH PERIOD ARE HIGHER. THE ASSESSING OFFICER HAS NOT CO NSIDERED THIS FACT AND HAD INFERRED THAT HIGHER EXPENSES SHOWN POST-SE ARCH ARE INDICATIVE OF THE LIKELY EXPENSES INCURRED IN THE P ERIOD COVERED BY SEARCH ASSESSMENTS. (IV) SHRI V. SEKAR LIVES A BANGALORE. HIS DRAWINGS HAVE BEEN ACCEPTED BY THE ASSESSING OFFICER AT ` .23,750/- FOR A.Y. 2008-09. THE COST OF LIVING IN BANGALORE IS HIGHER THAN THAT OF VELLORE. IT WOU LD ROUGHLY BE ONLY HALF. THE APPELLANT, HIS FATHER AND BROTHER ARE ALL VEGETARIANS AND HENCE EXPENSES WOULD FURTHER BE LESS. HALF OF ` .23,750/- WOULD COME TO ` .11,875/-. IF IT IS SCALED UP FOR A FAMILY OF 3, WH ICH IS THE COMPOSITION OF THE APPELLANT, THE DRAWINGS WORK OUT TO ` .17,812/-. THE APPELLANT HAS ADMITTED DRAWINGS OF ` .17,011/- AND THE DIFFERENCE BETWEEN THE TWO FOR THE YEAR WOULD BE ONLY AROUND ` .30,000/-. (V) THE APPELLANT ALSO WAS A NON-RESIDENT DURING TH E ASSESSMENT YEAR 2002-03. FOR THE A.Y. 2003-04, HE WAS A NON-RESIDEN T FOR 8 MONTHS. THEREFORE, THE QUESTION OF INCURRING EXPENDITURE TO WARDS DRAWINGS IN INDIA DOES NOT ARISE. (VI) THE ASSESSING OFFICER HAS GRADUALLY SCALED UP THE ESTIMATION OF DRAWINGS OF ALL FAMILIES TO 3 TIMES FROM 2002-03 TO 2008-09. FOR EG., FOR THE APPELLANT, DRAWINGS FOR A.Y. 2002-03 WERE E STIMATED AT ` .10,000/- AND FOR A.Y. 2008-09 WERE ESTIMATED AT ` .30,000/-. THIS IS WITHOUT ANY BASIS. HOWEVER, AS STATED EARLIER, NO A DDITION HAS BEEN MADE IN THE HANDS OF EITHER SHRI G. VISHWANATHAN OR SHRI V. SEKAR. SHRI G. VISHWANATHAN IS IN THE SAME SITUATION AS TH E APPELLANT; SHRI V. SEKAR IS LIVING IN A CITY, WHERE COST OF LIVING IS HIGHER. 7. NEXT, THE LD. AR ARGUED THAT LEGALLY THE ADDITI ONS MADE WILL NOT SURVIVE AS, SECTION 69C CAN BE INVOKED ONLY IN A CASE WHERE T HERE IS A FINDING OF FACT THAT AN EXPENDITURE HAS BEEN INCURRED, I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NOS SS S. .. .703TO 709 703TO 709 703TO 709 703TO 709/M/ /M/ /M/ /M/12 & 12 & 12 & 12 & C.O.NOS. C.O.NOS. C.O.NOS. C.O.NOS. 85 TO 91/M/12 85 TO 91/M/12 85 TO 91/M/12 85 TO 91/M/12 5 1. NO MATERIAL WHATSOEVER WAS FOUND AT THE TIME OF SEARCH TO PROVE THAT THE DRAWINGS ESTIMATED BY THE A.O. WAS INCURRED BY THE APPELLANT DURING THE FINANCIAL YEAR RELATING TO A.Y. 2002-03 AS REQUIRED U/S 69C. 2. NO STATEMENT WAS RECORDED TO ARRIVE AT A FINDIN G THAT APPELLANT HAD INCURRED THE AMOUNT ESTIMATED AS DRAWINGS BY THE A.O. 3. IN THE ABSENCE OF ANY FINDING OF FACT THAT THE APPELLANT HAD INFACT INCURRED THE ESTIMATED EXPENDITURE ON DRAWINGS, D URING THE RELEVANT FINANCIAL YEARS, THE ADDITION MADE TOWARDS DRAWINGS U/S 69C IS BAD IN LAW. THE APPELLANT RELIED ON THE FOLLOWING DECISIONS: I) CIT VS. LUBTEC INDIA LTD. 311 ITR 175 (DEL); II) CIT VS. C.L. KHALRI 282 ITR 97 (MP); III) PRABHU DAYAL LALLU RAM VS. ITO 63 TTJ 557 (DEL ); IV) M.P. MALLIVAL VS. JCIT 10 SOT 319 (HYD)(TM); V) ITO VS. L.N. MEHTA (HUF) 77 TTJ 63 JODHOPUR); VI) ACIT VS. K.H. DHAMDHERE 19 SOT 201 (COCH); VII) HARAKCHAND P. VORA VS. ACIT 68 TTJ 417 (MUM); VIII) PRADIP C. PATEL VS. DCIT 58 TTJ 409 (AHD); IX) LAKSHMI JEWELLERY VS. ACIT 73 TTJ 981 (MAD); X) OM PRAKASH SHARMA VS. DCIT 4 SOT 369 (JAIPUR); XI) ITO VS. DR. ANAND MEENAWAT 43 TTJ 213 (JAIPUR); XII) MAHAAN FOOD LTD. VS. DCIT 27 DTR (DEL)(TRIB) 1 85. 8. THE COMMISSIONER OF INCOME TAX (APPEALS) CONSID ERING THE SUBMISSIONS OF THE ASSESSEE AND THE REASONS FOR MAK ING THE ADDITION BY THE ASSESSING OFFICER, HELD THAT NO MATERIAL EVIDENCE W AS FOUND TO INDICATE ANY SUPPRESSION OF DRAWINGS THE DRAWINGS ADMITTED BY TH E ASSESSEE ARE REASONABLE. THE OBSERVATIONS OF THE COMMISSIONER OF INCOME TAX (APPEALS) ARE AS UNDER: 8. I HAVE CONSIDERED THE ARGUMENTS ADVANCED. ON T HE FACTUAL FOOTING, THERE IS NO EVIDENCE FOR THE ADDITIONS MADE. THE AR GUMENT THAT WHEN THE DRAWINGS OF SHRI V. SEKAR WHO IS RESIDING AT BANGAL ORE HAS BEEN ACCEPTED, I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NOS SS S. .. .703TO 709 703TO 709 703TO 709 703TO 709/M/ /M/ /M/ /M/12 & 12 & 12 & 12 & C.O.NOS. C.O.NOS. C.O.NOS. C.O.NOS. 85 TO 91/M/12 85 TO 91/M/12 85 TO 91/M/12 85 TO 91/M/12 6 THERE CANNOT BE ANY ENHANCEMENT FOR DRAWINGS ADMITT ED BY THE APPELLANT WHO IS LIVING AT VELLORE, WHERE THE COST OF LIVING IS C OMPARATIVELY LOW IS ACCEPTABLE. THE DRAWINGS ADMITTED BY THE APPELLANT ARE REASONABLE WHEN CONSIDERED VIS-A-VIS THE DRAWINGS SHOWN BY SHRI V. SEKAR. WHEN THE DRAWINGS ADMITTED BY SHRI G. VISHWANATHAN AND SHRI V. SEKAR, HAVE BEEN ACCEPTED, THERE CANNOT BE A HIGHER ESTIMATION FOR D RAWINGS FOR THE APPELLANT. AS NO MATERIAL WAS FOUND TO INDICATE ANY SUPPRESSIO N OF DRAWINGS, THE ADDITIONS MADE ALSO DO NOT STAND GOOD LEGALLY. THER EFORE, THESE ADDITIONS MADE U/S 69C TOWARDS DRAWING FOR THE A.YS 2002-03 T O 2008-09 ARE DELETED. 9. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS AVAILABLE ON RECORD AND ORDERS OF LOWER AUTHORITIES. THE FINDING OF THE COMMISSIONER OF INCOME TAX (APPEALS) IS THAT THERE IS NO EVIDENCE ON RECOR D FOR MAKING THESE ADDITIONS. NO MATERIAL WAS FOUND DURING THE COURSE OF SEARCH TO INDICATE ANY SUPPRESSION OF DRAWINGS AND THE DRAWINGS ADMITTED B Y THE ASSESSEE ARE REASONABLE. THEREFORE, WE SEE NO REASON TO INTERFER E WITH THE FINDINGS OF THE COMMISSIONER OF INCOME TAX (APPEALS) AS NO EVIDENCE WAS BROUGHT ON RECORD BY THE REVENUE IN SUPPORT OF THE ADDITION MA DE IN THE ASSESSMENT ORDER TOWARDS INADEQUATE DRAWINGS. THE GROUNDS RAIS ED BY THE REVENUE ARE REJECTED ON THIS ISSUE FOR ALL THE ASSESSMENT YEARS . 10. THE NEXT COMMON ISSUE IN THE APPEALS OF THE RE VENUE IN I.T.A. NOS. 706 TO 709/MDS/2012 FOR THE ASSESSMENT YEARS 2005-0 6 TO 2008-09 IS THAT THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN D IRECTING THE ASSESSING OFFICER TO ASSESS THE INCOME ADDED UNDER SECTION 69 B/69C, AS INCOME FROM OTHER SOURCES. 11. THE ASSESSING OFFICER WHILE COMPLETING THE ASS ESSMENT ASSESSED I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NOS SS S. .. .703TO 709 703TO 709 703TO 709 703TO 709/M/ /M/ /M/ /M/12 & 12 & 12 & 12 & C.O.NOS. C.O.NOS. C.O.NOS. C.O.NOS. 85 TO 91/M/12 85 TO 91/M/12 85 TO 91/M/12 85 TO 91/M/12 7 CERTAIN INCOMES AS UNEXPLAINED INVESTMENT/EXPENDITU RE UNDER SECTION 69B/ 69C OF THE ACT. THE ASSESSEE FILED APPEAL BEFORE TH E COMMISSIONER OF INCOME TAX (APPEALS) CONTENDING THAT HE HAS VOLUNTA RILY DISCLOSED THESE INCOMES EITHER IN THE COURSE OF ASSESSMENT PROCEEDI NGS OR IN THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE UNDER SECTION 15 3(A) AS INCOME FROM OTHER SOURCES. THE ASSESSEE CONTENDED THAT HE HAD O FFERED THESE AMOUNTS AS INCOME FROM OTHER SOURCES VOLUNTARILY FROM THE N OTINGS IN THE DIARIES, WHICH WERE NOT DEDUCTED EITHER BY THE DDIT (INVESTI GATION) OR BY THE ASSESSING OFFICER. THE ADDITIONAL AMOUNT OFFERED BY THE ASSESSEE RELATES TO PROPERTIES, WHICH WERE PURCHASED BY THE VELLORE INS TITUTE OF TECHNOLOGY AND NOT BY THE ASSESSEE. THE ASSESSEE IS NOT THE OWNER OF THE ASSET AND HE HAS NOT PAID ANY AMOUNT MORE THAN THE REGISTERED SALE P RICE AND THEREFORE, THE ADDITION CANNOT BE MADE UNDER SECTION 69B OF THE AC T. IT WAS CONTENDED THAT SECTION 69B AND 69C CAN BE INVOKED ONLY WHEN INVEST MENTS MADE ARE NOT FULLY DISCLOSED IN THE BOOKS OF ACCOUNTS. THESE ARE NOT INVESTMENTS MADE BY THE ASSESSEE AND THE ASSESSEE IS ALSO NOT MAINTAINI NG ANY BOOKS OF ACCOUNTS. IT WAS CONTENDED THAT THE ASSESSING OFFIC ER HAS ONLY ASSESSED WHAT WAS VOLUNTARILY OFFERED BY THE ASSESSEE. 12. THE COMMISSIONER OF INCOME TAX (APPEALS) CONSI DERING THE SUBMISSIONS OF THE ASSESSEE AS WELL AS THE REASONS FOR MAKING THE ADDITION BY THE ASSESSING OFFICER HELD THAT THE AMOUNTS OFFE RED BY THE ASSESSEE I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NOS SS S. .. .703TO 709 703TO 709 703TO 709 703TO 709/M/ /M/ /M/ /M/12 & 12 & 12 & 12 & C.O.NOS. C.O.NOS. C.O.NOS. C.O.NOS. 85 TO 91/M/12 85 TO 91/M/12 85 TO 91/M/12 85 TO 91/M/12 8 SHOULD BE ASSESSED UNDER THE HEAD INCOME FROM OTHE R SOURCES AND NOT AS INCOME UNDER SECTION 69B/69C OF THE ACT. AGAINST TH IS ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), THE REVENUE I S IN APPEAL BEFORE US. 13. THE COUNSEL FOR THE REVENUE SUPPORTED THE ORDE R OF THE ASSESSING OFFICER. 14. THE COUNSEL FOR THE ASSESSEE RELIED ON THE ORD ER OF THE COMMISSIONER OF INCOME TAX (APPEALS). 15. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIAL S AVAILABLE ON RECORD AND ORDERS OF LOWER AUTHORITIES. THERE IS NO DISPUT E WITH REGARD TO QUANTUM OF ADDITION MADE IN ALL THESE ASSESSMENT YEARS. THE ONLY DISPUTE IS WHETHER THE ADDITIONAL INCOME OFFERED BY THE ASSESSEE AS IN COME FROM OTHER SOURCES CAN BE TREATED AS AN ADDITION MADE UNDER SECTION 69 B/69C OF THE ACT. IT IS THE FINDING OF THE COMMISSIONER OF INCOME TAX (APPE ALS) THAT THE ASSESSEE HAD OFFERED VOLUNTARILY HIGHER AMOUNT THAN WHAT WAS DETECTED BY THE DEPARTMENT. THE PROPERTIES PURCHASED ARE IN THE NAM E OF THE VELLORE INSTITUTE OF TECHNOLOGY. THEREFORE, THE COMMISSIONE R OF INCOME TAX (APPEALS) CONCLUDED THAT THE ADDITION UNDER SECTION 69B CAN BE MADE ONLY WHEN THE ASSESSING OFFICER FINDS THAT THE INVESTMEN T MADE EXCEEDS THE INVESTMENT ADMITTED BY THE ASSESSEE. IN THE ASSESSE ES CASE, BEFORE SUCH FINDING WAS MADE BY THE ASSESSING OFFICER, THE ASSE SSEE HAD OFFERED THE I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NOS SS S. .. .703TO 709 703TO 709 703TO 709 703TO 709/M/ /M/ /M/ /M/12 & 12 & 12 & 12 & C.O.NOS. C.O.NOS. C.O.NOS. C.O.NOS. 85 TO 91/M/12 85 TO 91/M/12 85 TO 91/M/12 85 TO 91/M/12 9 ADDITIONAL AMOUNT ON THE BASIS OF NOTINGS IN THE DI ARY/OTHER DOCUMENTS AS ADDITIONAL INCOME UNDER OTHER SOURCES. THEREFORE THERE IS NO OCCASION FOR THE ASSESSING OFFICER TO ARRIVE AT A FINDING AS TO UNDER WHICH SECTION, THE INCOME SHOULD BE ASSESSED. THE COMMISSIONER OF INCO ME TAX (APPEALS) ALSO FOUND THAT THE EXPENDITURE ON FOREIGN TRAVEL W AS OFFERED AS INCOME FROM OTHER SOURCES IN THE RETURN FILED PRIOR TO THE FIND ING OF THE ASSESSING OFFICER. THEREFORE, SUCH EXPENDITURE SHOULD ALSO BE ASSESSED UNDER OTHER SOURCES AND NOT UNDER SECTION 69C OF THE ACT. THUS, THE CON CLUSION OF THE COMMISSIONER OF INCOME TAX (APPEALS) WAS THAT THE A MOUNT OFFERED CANNOT BE ASSESSED UNDER SECTION 69B/69C, BUT SHOULD BE AS SESSED UNDER OTHER SOURCES. NOTHING WAS PLACED ON RECORD TO CONTROVER T THESE FINDINGS OF THE COMMISSIONER OF INCOME TAX (APPEALS). THEREFORE, WE FIND NO GOOD REASON TO INTERFERE WITH THE FINDINGS OF THE COMMISSIONER OF INCOME TAX (APPEALS) IN HOLDING THAT THE AMOUNTS OFFERED BY THE ASSESSEE AR E TO BE ASSESSED AS INCOME FROM OTHER SOURCES AND NOT TO BE TREATED AS AN ADDITION MADE UNDER SECTION 69B/69C OF THE ACT.. THE GROUNDS RAISED BY THE REVENUE ON THIS ISSUE ARE REJECTED. 16. THE OTHER ISSUE IN THE APPEAL OF THE REVENUE I N I.T.A. NO. 708/MDS/2012 FOR THE ASSESSMENT YEAR 2007-08 IS THA T THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN DIRECTING THE ASSESSI NG OFFICER TO GIVE CREDIT TO A SUM OF ` .14.00 LAKHS IN THE HANDS OF THE ASSESSEE. I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NOS SS S. .. .703TO 709 703TO 709 703TO 709 703TO 709/M/ /M/ /M/ /M/12 & 12 & 12 & 12 & C.O.NOS. C.O.NOS. C.O.NOS. C.O.NOS. 85 TO 91/M/12 85 TO 91/M/12 85 TO 91/M/12 85 TO 91/M/12 10 17. THE CONTENTION OF THE ASSESSEE BEFORE THE COMM ISSIONER OF INCOME TAX (APPEALS) WAS THAT A SUM OF ` .8.00 LAKHS WAS SEIZED FROM ASSESSEES RESIDENCE AND ` .6.00 LAKHS WAS SEIZED FROM THE ASSESSEES MOTHER S MT. K. RAJESHWARI. IT SEEMS THAT THE ASSESSING OFFICER HAS NOT GIVEN CREDIT FOR THE SAID SUMS OF ` .14.00 LAKHS FOR THE ASSESSMENT YEAR 2007-08 AS REQ UESTED BY THE ASSESSEE IN VARIOUS LETTERS ADDRESSED TO THE REVENUE. 18. THE COMMISSIONER OF INCOME TAX (APPEALS) DIREC TED THE ASSESSING OFFICER TO GIVE CREDIT FOR THE SAID SUM OF ` .14 LAKHS FOR THE ASSESSMENT YEAR IN THE HANDS OF THE ASSESSEE. THE COMMISSIONER OF I NCOME TAX (APPEALS) FURTHER HELD THAT IN CASE CREDIT IS GIVEN IN THE HA NDS OF THE OWNERS OF CASH I.E. SHRI V. SANKAR (HUF) AND SMT. K. RAJESHWARI, THE CR EDIT GIVEN TO THE ASSESSEE HAS TO BE WITHDRAWN. AGAINST THIS DIRECTIO N, THE REVENUE IS IN APPEAL BEFORE US. 19. WE HAVE HEARD BOTH SIDES AND PERUSED THE ORDER S OF LOWER AUTHORITIES. IT IS NOT IN DISPUTE THAT THE DEPARTMENT HAD SEIZED ` .8.00 LAKHS IN ASSESSEES PREMISES IN THE COURSE OF SEARCH. IT IS ALSO NOT IN DISPUTE THAT AN AMOUNT OF ` .6.00 LAKHS WAS SEIZED FROM ASSESSEES MOTHER SMT. K. RAJESHWARI. THE DEPARTMENT HAVING SEIZED THE CASH OF ` .14.00 LAKHS, IT HAS TO GIVE CREDIT FOR SUCH SEIZED CASH EITHER IN THE HANDS OF THE ASSESSE E INDIVIDUAL OR IN THE HANDS OF SHRI V. SANKAR (HUF) OR MOTHER OF THE ASSE SSEE SMT. K. I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NOS SS S. .. .703TO 709 703TO 709 703TO 709 703TO 709/M/ /M/ /M/ /M/12 & 12 & 12 & 12 & C.O.NOS. C.O.NOS. C.O.NOS. C.O.NOS. 85 TO 91/M/12 85 TO 91/M/12 85 TO 91/M/12 85 TO 91/M/12 11 RAJESHWARI. IN THE CIRCUMSTANCES, WE DO NOT FIND AN Y INFIRMITY IN THE DIRECTION GIVEN BY THE COMMISSIONER OF INCOME TAX (APPEALS) I N DIRECTING THE ASSESSING OFFICER TO GRANT CREDIT FOR A SUM OF ` .14.00 LAKHS IN THE HANDS OF THE ASSESSEE AND IN CASE, IF CREDIT IS GIVEN FOR SU CH CASH SEIZED IN THE HANDS OF SHRI V. SANKAR (HUF) AND SMT. K. RAJESHWARI, THE CREDIT GIVEN IN THE HANDS OF THE ASSESSEE HAS TO BE WITHDRAWN. THEREFOR E, THE GROUNDS RAISED BY THE REVENUE ARE REJECTED. CROSS OBJECTIONS 20. THE FIRST ISSUE IN THE GROUNDS OF CROSS OBJECT IONS FILED BY THE ASSESSEE IS THAT THE COMMISSIONER OF INCOME TAX (APPEALS) ER RED IN SUSTAINING THE DE- NOVO ASSESSMENT MADE UNDER SECTION 153(A) WITHO UT CONFINING TO THE SEARCH MATERIALS RELATED TO THE YEAR. 21. DURING THE COURSE OF HEARING, THE COUNSEL FOR THE ASSESSEE FAIRLY CONCEDED THAT THIS ISSUE HAS BEEN DECIDED BY THE CO ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF HARVEY HEART HOSPITALS LTD. V. ACIT IN I.T.A. NO. 1842/MDS/2008 FOR THE ASSESSMENT YEAR 2005-06 BY OR DER DATED 30.01.2009 AGAINST THE ASSESSEE. RESPECTFULLY FOLLOWING THE OR DER OF THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF HARVEY HEART HOSPITALS LTD. V. ACIT (SUPRA), WE UPHOLD THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) IN HOLDING THAT THE PROVISIONS OF SECTION 153A TO 1 53C PROVIDE FOR FRESH ASSESSMENTS FOR SIX YEARS PRECEDING THE YEAR OF SEA RCH AND ASSESSMENTS I.T.A. I.T.A. I.T.A. I.T.A. NO NONO NOS SS S. .. .703TO 709 703TO 709 703TO 709 703TO 709/M/ /M/ /M/ /M/12 & 12 & 12 & 12 & C.O.NOS. C.O.NOS. C.O.NOS. C.O.NOS. 85 TO 91/M/12 85 TO 91/M/12 85 TO 91/M/12 85 TO 91/M/12 12 NEED NOT BE CONFINED TO ISSUES BASED ON THE MATERIA LS FOUND DURING THE COURSE OF SEARCH. 22. THE OTHER ISSUE IN THE CROSS OBJECTIONS OF THE ASSESSEE IS THAT THE COMMISSIONER OF INCOME TAX (APPEALS) OMITTED TO DEC IDE THE GROUND REGARDING DENIAL OF LIABILITY TO INTEREST UNDER SEC TION 234B OF THE ACT. SINCE LEVY OF INTEREST UNDER SECTION 234B IS ONLY CONSEQU ENTIAL, WE DO NOT FIND FORCE IN THE GROUND TAKEN BY THE ASSESSEE. HENCE, T HE GROUNDS OF CROSS OBJECTION ON THIS ISSUE ARE REJECTED. 23. IN THE RESULT, ALL THE APPEALS OF THE DEPARTME NT IN I.T.A. NOS. 703 TO 709/MDS/2012 AS WELL AS ALL THE CROSS OBJECTIONS OF THE ASSESSEE IN C.O. NOS. 85 TO 91/MDS/2012 FOR ALL THE ASSESSMENT YEARS UNDER APPEAL ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON MONDAY, THE 23 RD JULY, 2012 AT CHENNAI. SD/- SD/- (DR. O.K. NARAYANAN) VICE - PRESIDENT (CHALLA NAGENDRA PRASAD) JUDICIAL MEMBER CHENNAI, DATED, THE 23.07.2012 VM/- TO: THE ASSESSEE//A.O./CIT(A)/CIT/D.R.