Rajendra Kumar Chopra, Kanpur V. Asstt. Commissioner of Income Tax-V, Kanpur

ITA 750/LKW/2013

• Counselvise Citation: 75023714 RSA 2013
• Duration Of Justice: 1 year(s) 7 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 15-06-2015
• Assessment Year: misc
• Appeal Filed On: 21-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: DR ANAND KUMAR AGARWAL
• Keywords: Principle of natural justice; Block assessment
• Section: 133(6); 6

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.750/LKW/2013 BLOCK PERIOD ENDING ON 27/10/2002 A.C.I.T. - V, KANPUR. VS SHRI RAJENDRA KUMAR CHOPRA, 73/16, RAILLWAY ROAD, COLLECTORGANJ, KANPUR. PAN:ABVPJ8620R (RESPONDENT) (APPELLANT) SHRI P. K. KAPOOR, C.A. APPELLANT BY DR. ANAND KUMAR AGARWAL, C.I.T., D. R. RESPONDENT BY 15/06/2015 DATE OF HEARING 17 /07/2015 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A) - I, KANPUR DATED 26/08/2013 FOR THE BLOCK PERIOD ENDING ON 27/10/2002. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. BECAUSE THE AUTHORITIES BELOW HAVE ERRED IN LAW AND IN MAKING/SUSTAINING THE FOLLOWING ADDITIONS: - (A) PAYMENT OF INSURANCE PREMIUM 3,107 (B) INTEREST ON DEPOSIT WITH M/S. SANJAY TEXTILES, KANPUR AS MADE BY SMT. SUMAN BALA CHOPRA (WIFE O F THE APPELLANT) 74,093 (C) D POSIT IN SB A/C. NO. 1863 WITH ALLAHABAD BANK, SAKKARPATI BRANCH, KANPUR, IN THE NAME OF THE APPELLANT 1,58,810 (D) DEPOSIT IN SB A/C. NO. 709 WITH UNITED MERCANTILE COOPERATIVE BANK LTD, GODARINPURWA BRANCH, FAZALGANJ, KANPUR, STANDING IN THE NAMES OF 2 'RAJENDRA KUMAR CHOPRA HARISH KUMAR CHOPRA 2,16,843 2. BECAUSE NONE OF THE ADDITIONS AS AFORESAID AS HAVE BEEN MADE/SUSTAINED BY THE AUTHORITIES BELOW FELL UNDER THE DEFINITION OF 'UN - DISCLOSED INCOME' AS CONTAINED IN SECTION 158BB OF THE 'ACT' AND NO PART OF THE SAME COULD HAVE BEEN SUSTAINED EITHER ON FACTS OR ON LAW. WITHOUT PREJUDICE TO THE AFORESAID 3. BECAUSE SMT. SUMAN BALA CHOPRA, WIFE OF THE 'APPELLANT' HAD 'DEPOSIT' WITH M/S. SANJAY TEXTILE, KANPUR IN HER OWN NAME AS ALSO IN HER OWN RIGHTS AND IN THE ABSENCE OF ANY MATERIAL TO THE CONTRARY FOUND DURING THE COURSE OF SEARCH UNDER SECTION 132(1), NO SUCH ADDITION COULD HAVE BEEN MADE / SUSTAINED IN THE BLOCK PERIOD ASSE SSMENT. 4. BECAUSE SOURCE OF DEPOSITS IN THE TWO BANK ACCOUNTS AGGREGATING RS.3,75,653/ - (RS.1,58,810 + 2,16,843) STOOD FULLY EXPLAINED AND COVERED FROM THE INCOMES DISCLOSED BY THE 'APPELLANT' IN THE 'RETURNS' FILED IN REGULAR COURSE AND THE 'AUTHORITIES ' BELOW HAVE GRIEVOUSLY ERRED IN NOT GIVING BENEFIT OF 'ASSESSED INCOME' AND IN MAKING/SUSTAINING THE ADDITION FOR THE SAME IN 'BLOCK ASSESSMENT' MADE UNDER SECTION 158BC. 5. BECAUSE EVEN AFTER ADMITTING AND ACCEPTING THAT T HE 'APPELLANT' HAD BEEN REGULAR LY ASSESSED TO TAX IN PAST, DUE BENEFIT FOR ACCUMULATION / APPLICATION OF INCOME SHOWN IN THE EARLIER YEARS RETURNS IN REGULAR COURSE (WHICH HAVE BEEN SUBJECTED TO ASSESSMENTS ALSO) SHOULD HAVE BEEN GIVEN AND NO PART OF THE SAME COULD HAVE BEEN ADDED TO TH E INCOME OF THE 'APPELLANT', AS 'UNDISCLOSED INCOME'. 6. BECAUSE IN ANY CASE ADDITION OF RS.3,75,653/ - AS SUSTAINED BY THE 'CIT(A)' IS' TO MUCH HIGH AND EXCESSIVE. 7. BECAUSE THE ORDER APPEALED AGAINST IS CONTRARY TO THE FACTS, LAW AND PRINCIPLES OF NATURAL JUSTICE. 3. REGARDING GROUND NO. 1(A) IN RESPECT OF ADDITION OF RS.3,107/ - ON ACCOUNT OF ALLEGED PAYMENT OF INSURANCE PREMIUM, IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT ON PAGE NO. 19 OF THE PAPER BOOK IS THE 3 RECEIPT ISSUED BY THE OR IENTAL INSURANCE COMPANY LTD. AND AS PER THIS RECEIPT, THE RECEIPT IS IN THE NAME OF THE ASSESSEE SHRI RAJENDRA KUMAR CHOPRA BUT IT WAS SUBMITTED BEFORE CIT(A) ALSO AS NOTED BY HIM IN PARA 4.1 THAT TRUCK NO. UP78B 1033 BELONGS TO SHRI RA KESH KUMAR CHOPRA, NEPHEW OF THE ASSESSEE AND THIS FACT HAD BEEN GOT CLARIFIED BY THE ASSESSING OFFICER THROUGH ENQUIRIES MADE FROM THE OFFICE OF R.T.O. AND THEREFORE, THE ADDITION MADE BY THE ASSESSING OFFICER IS NOT JUSTIFIED. HE REITERATED THE SAME CONTENT IONS, WHICH WERE RAISED BEFORE LEARNED CIT(A) AND WERE REPRODUCED BY HIM IN PARA 4.1 OF HIS ORDER. 4. LEARNED D. R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. FIRST OF ALL WE REPRODUCE PAR A 4.1 FROM THE ORDER OF LEARNED CIT(A) IN WHICH HE HAS REPRODUCED THE WRITTEN SUBMISSIONS SUBMITTED BY THE ASSESSEE BEFORE HIM, WHICH IS AS UNDER: 4.1 IN THIS REGARD, THE LD. A.R. OF THE APPELLANT HAS SUBMITTED AS UNDER: 'THAT AS REGARDS THE OTHER AD DITIONS AS PER GROUND NO. - 1(A), (B), (C) AND (D), IT IS SUBMITTED THAT THESE AMOUNTS ARE ALREADY COVERED IN THE INCOME SURRENDERED BY THE APPELLANT IN HIS BLOCK RETURN. IN RESPECT OF ADDITION OF RS.3,107/ - AS PER GROUND NO. - 1(B), IT IS SUBMITTED THAT TRUCK NO. - UP 78 B 1033 BELONG TO SHRI RAKESH KUMAR CHOPRA, NEPHEW OF THE APPELLANT AND SUCH A FACT HAD BEEN GOT CLARIFIED BY THE A.O. THROUGH ENQUIRIES M ADE FROM THE OFFICE OF R.T.O. DURING THE COURSE OF THE ASSESSMENT PROCEEDING IT HAD BEEN EXPLAINED THAT INS URANCE CO. HAD WRONGLY MENTIONED THE NAME OF THE APPELLANT IN THE COVER NOTE AND IN SUPPORT OF THIS CONTENTION, A CORRECTED COVER NOTE WAS A/SO PLACED ON RECORD. THUS , THIS ADDITION OF R S. 3,1 0 7/ - WAS NOT JUSTIFIED . ' 4 5.1 FROM THE ABOVE PARA FROM THE ORDER OF LEARNED CIT(A), IT IS SEEN THAT IT IS THE ASSERTION OF THE ASSESSEE THAT THE CONCERNED TRUCK NO. UP 78 B 1033 BELONG ED TO SHRI RAKESH KUMAR CHOPRA, NEPHEW OF THE ASSESSEE AND IT IS ALSO ASSERTED BY THE ASSESSEE BEFORE LEARNED CIT(A) THAT SUCH A FACT HAD BEEN GOT CLARIFIED BY THE A.O. THROUGH ENQUIRIES MADE FROM THE OFFICE OF R.T.O. THIS ASSERTION OF THE ASSESSEE COULD NOT BE CONTROVERTED BY ANY OF THE AUTHORITIES BELOW OR BY LEARNED D.R. OF THE REVENUE. IN OUR CONSIDERED OPINION, WHEN T HE CONCERNED VEHICLE IS BELONGING TO SHRI RAKESH KUMAR CHOPRA, THIS SHOULD BE ACCEPTED THAT THE PAYMENT WAS MADE BY HIM ONLY AND SINCE SHRI RAKESH KUMAR CHOPRA IS NEPHEW OF THE ASSESSEE, IT IS NOT VERY UNUSUAL TO FIND A RECEIPT OF THE NEPHEW OF THE ASSESSE E AT THE PLACE OF THE ASSESSEE AND UNDER THESE FACTS, WE FEEL THAT THE ADDITION IS NOT JUSTIFIED AND THE SAME IS DELETED. 6. REGARDING GROUND NO. 1(B) IN RESPECT OF ADDITION MADE BY THE ASSESSING OFFICER OF RS.74,093/ - ON ACCOUNT OF INTEREST ON DEPOSIT WITH M/S SANJAY TEXTILES, KANPUR , IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT THE COPY OF LEDGER ACCOUNT OF SUMAN BALA CHOPRA, WIFE OF THE ASSESSEE, IN THE BOOKS OF M/S SANJAY TEXTILES, KANPUR FOR ASSESSMENT YEAR 1996 - 1997 TO 2002 - 2003 IS AVAILAB LE ON PAGES 21 TO 27 OF THE PAPER BOOK. HE ALSO SUBMITTED THAT IN VIEW OF THIS, THIS SHOULD BE ACCEPTED THAT THE IMPUGNED LOAN WITH M/S SANJAY TEXTILES, KANPUR BELONGS TO THE WIFE OF THE ASSESSEE AND NOT TO THE ASSESSEE. HE ALSO SUBMITTED THAT THE PROVIS IONS OF SECTION 6 4 ARE NOT APPLICABLE IN RESPECT OF THIS INTEREST INCOME EARNED BY THE WIFE OF THE ASSESSEE AND THEREFORE, ADDITION IS NOT JUSTIFIED. 7. LEARNED D. R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT IT IS UNDISPUTED FACT THAT THE AMOUNT IS STANDING IN THE NAME OF SUMAN BALA 5 CHOPRA, WIFE OF THE ASSESSEE, IN THE BOOKS OF M/S SANJAY TEXTILES, KANPUR. THE BASIS OF MAKING ADDITION BY THE ASSESSING OF FICER IS THAT SUMAN BALA CHOPRA, WIFE OF THE ASSESSEE, IS NOT ASSESSED TO TAX AND THE ASSESSING OFFICER HAS STRAIGHT AWAY INVOKED THE PROVISIONS OF SECTION 64 OF THE ACT FOR MAKING THIS ADDITION WITHOUT PIN POINTING AS TO WHICH CLAUSE OF SUB SECTION (1) OF SECTION 64 IS APPLICABLE IN THE PRESENT CASE. AS PER CLAUSE (II) OF SUB SECTION (1) OF SECTION 64, THE INCOME ON ACCOUNT OF SALARY, COMMISSION, FEES OR ANY OTHER FORM OF REMUNERATION FROM A CONCERN IN WHICH AN INDIVIDUAL HAS SUBSTANTIAL INTEREST, CAN BE ADDED IN THE HANDS OF THE SPOUSE. IN THE PRESENT CASE, THIS CLAUSE IS DEFINITELY NOT APPLICABLE BECAUSE THE NATURE OF INCOME ADDED IS INTEREST INCOME AND NOT SALARY, COMMISSION, FEES ETC. AS PER CLAUSE (IV) OF SUB SECTION (1) OF SECTION 64, IF ANY INCOME IS ACCRUING TO THE SPOUSE OF THE ASSESSEE FROM SOME ASSETS TRANSFERRED BY THE ASSESSEE OTHERWISE THAN FOR ADEQUATE CONSIDERATION IN THAT CASE , SUCH INCOME ACCRUING TO THE SPOUSE WILL BE ADDED IN THE HANDS OF THE ASSESSEE WHO HAS TRANSFERRED SUCH ASSETS TO THE SPOUSE. HENCE, BEFORE PROCEEDING TO INVOKE THE PROVISIONS OF SECTION 64(1)(IV), THIS IS PRE - REQUIREMENT THAT THIS FACT IS ESTABLISHED THAT SOME ASSET HAS BEEN TRANSFERRED BY THE ASSESSEE TO HIS SPOUSE OTHERWISE THAN FOR ADEQUATE CONSIDERATION AND THE INCOME IN DISPUTE IS ACCRUING ON SUCH ASSET WHICH WAS SO TRANSFERRED BY THE ASSESSEE TO HIS SPOUSE. AS PER THE ASSESSMENT ORDER, THERE IS NO SUCH ALLEGATION OF THE ASSESSING OFFICER AND NOTHING HAS BEEN BROUGHT ON RECORD BY THE ASSESSING OFFICER TO ESTAB LISH THAT THE AMOUNT STANDING IN THE NAME OF THE WIFE OF THE ASSESSEE IN THE BOOKS OF M/S SANJAY TEXTILES, KANPUR HAS BEEN TRANSFERRED BY THE ASSESSEE TO HIS SPOUSE WITHOUT ADEQUATE CONSIDERATION. IT WAS ALSO SUBMITTED BY THE ASSESSEE BEFORE THE CIT(A) AS PER HIS SUBMISSION REPRODUCED BY CIT(A) IN PARA 5.1 OF HIS ORDER THAT THE ASSESSING OFFICER HAS PROCEEDED ON THIS BASIS THAT THE WIFE OF THE ASSESSEE WAS NOT ASSESSED TO TAX BUT THIS IS IGNORED THAT NECESSARY DETAILS OF ASSESSMENT OF SUMAN BALA CHOPRA WAS PRODUCED IN RESPECT OF POST SEARCH 6 YEARS AND FOR EARLIER PERIOD , SHE WAS NOT ENJOYING TAXABLE INCOME AND THEREFORE, NO RETURN WAS FILED BY HER. AS PER YEAR - WISE DETAIL OF THE IMPUGNED INTEREST INCOME REPRODUCED BY THE ASSESSING OFFICER IN PARA 13 OF THE ASSESSMENT ORDER, WE FIND THAT THE MAXIMUM AMOUNT IN ONE YEAR IS 13,231/ - IN ASSESSMENT YEAR 2001 - 2002, WHICH IS MUCH BELOW THE EXEMPTION LIMIT. IN OUR CONSIDERED OPINION, THIS FACT IS NOT RELEVANT THAT THE WIFE OF THE ASSESSEE WAS NOT FILING RETURN OF IN COME DURING THE RELEVANT PERIOD I.E. ASSESSMENT YEAR 1997 - 98 TO ASSESSMENT YEAR 2003 - 04. IN PARA 12 OF THE ASSESSMENT ORDER, IT IS NOTED BY THE ASSESSING OFFICER THAT THE DEPOSIT OF RS.58,764/ - WAS MADE BY THE ASSESSEES WIFE WITH M/S SANJAY TEXTILES, KAN PUR PRIOR TO BLOCK PERIOD AND THEREFORE, IT DOES NOT REQUIRE ANY FURTHER VERIFICATION. AS PER THE COPY OF LEDGER ACCOUNT OF SUMAN BALA CHOPRA WITH M/S SANJAY TEXTILES, KANPUR, APPEARING ON PAGE NO. 21 OF THE PAPER BOOK FOR THE FINANCIAL YEAR 1996 - 97, IT I S SEEN THAT THE OPENING BALANCE SHOWN IS RS.58,764/ - AND THIS IS ADMITTED BY THE ASSESSING OFFICER IN PARA 11 THAT THE ASSESSEES WIFE HAD MADE INVESTMENT OF RS.58,764/ - PRIOR TO BLOCK PERIOD. ONCE IT IS ACCEPTED BY THE ASSESSING OFFICER THAT THE INVESTMENT WITH M/S SANJAY TEXTILES, KANPUR WAS MADE BY THE ASSESSEES WIFE IN THE PRE BLOCK PERIOD THEN INCOME AC CRUING OUT OF SUCH INVESTMENT CANNOT BE ADDED IN THE HANDS OF THE PRESENT ASSESSEE. THIS IS ALSO NOTED BY THE ASSESSING OFFICER IN THE SAME PARA OF THE ASSESSMENT ORDER THAT NO FRESH DEPOSIT WAS MADE BY SUMAN BALA CHOPRA DURING BLOCK PERIOD. AS PER THE L EDGER ACCOUNT COPY AVAILABLE ON PAGES 21 TO 27 ALSO, DURING THIS PERIOD , THE ADDITION IS ONLY ON ACCOUNT OF INTEREST FOR EACH YEAR AND THERE IS NO FRESH INVESTMENT BY THE WIFE OF THE ASSESSEE. CONSIDERING ALL THESE FACTS, IN OUR CONSIDERED OPINION, THE AD DITION IS NOT JUSTIFIED AND SECTION 64 IS NOT APPLICABLE. HENCE, THIS ADDITION IS DELETED. 9. GROUND NO. 1(C) AND 1(D) ARE REGARDING DEPOSIT IN SB ACCOUNT NO. 1863 WITH ALLAHABAD BANK RS.1,58,810/ - AND SB ACCOUNT NO. 709 WITH 7 UNITED MERCANTILE CO - OPERATI VE BANK LTD. RS.2,16,843/ - . REGARDING THESE TWO GROUNDS, IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT NO MATERIAL WAS FOUND IN COURSE OF SEARCH AND THEREFORE, NO ADDITION CAN BE MADE IN BLOCK ASSESSMENT. IN SUPPORT OF THIS CONTENTION, RELIANCE W AS PLACED ON FOLLOWING JUDICIAL PRONOUNCEMENTS: ( I ) CIT VS. RAVI KANT JAIN [2001] 250 ITR 141 (DEL) ( II ) CIT VS. BIMAL AUTO AGENCY [2009] 314 ITR 191 (GAU) ( III ) CIT VS. SMT. C. SABIRA [2011] 338 ITR 226 (KER) ( IV ) CIT VS. R.M.L. MEHROTRA [2010] 320 ITR 403 (ALL) 10. HE ALS O REITERATED THE SAME CONTENTIONS WHICH WERE MADE BEFORE LEARNED CIT(A) AND WHICH HAVE BEEN REPRODUCED BY HIM IN PARA 6.1.2 OF HIS ORDER. 11. LEARNED D. R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 12. WE HAVE CONSIDERED THE RIVAL SU BMISSIONS. FIRST OF ALL WE REPRODUCE THE RELEVANT PARA FROM THE ORDER OF LEARNED CIT(A) I.E. PARA 6.1.2 WHERE LEARNED CIT(A) HAS REPRODUCED THE WRITTEN SUBMISSIONS MADE BY LEARNED A.R. OF THE ASSESSEE BEFORE HIM, WHICH IS AS UNDER: 6.1.2 ASSESSEE IN THE SUBMISSION FILED HAS STATED AS UNDER: A/C NO. - 1863 ALLAHABAD BANK A/C NO. - 709 UNITED MERCANTILE CO - OPERATIVE BANK LTD. THE ENTIRE DEPOSITS IN THE SAID TWO BANK ACCOUNT REPRESENTS THE RECEIPTS ON ACCOUNT OF TRUCK PLYING BUSINESS IN SHAPE OF FREIGHT FROM VARIOUS PARTIES AND THE SAME WERE BEING WITHDRAWN REGULARLY FOR MAKING THE PAYMENTS RELATING TO THE TRUCKS LIKE D IESEL , DRIVER'S SALARY, MAINTENANCE AND OTHER MISC. ROAD EXPENSES INCURRED BY THE DRIVERS. THE APPELLANT HAS SHOWN THE INCOME FROM TRUCK PLYING BUSINESS AS PER PROVISIONS OF SECTION 44 AE OF THE I.T. ACT, 1961 AND THE NET INCOME INCLUDING THE 8 INCOME ON THE DEPOSITS IN THESE ACCOUNT WAS ALRE A DY SHOWN U/S 44 AE OF THE I. T. ACT, 1961. 2. THAT WHILE COMPLETING THE ASSESSMENT THE LD. A .O. HAS DIS - BELIEVED THE APPELLANT'S SUBMISSION AND OUT RIGHTLY MADE AN ADDITION OF RS.3,75,653/ - AFTER CONSIDERING THE RECEIPTS OF DINESH OIL LTD. ONLY AND HAS, ALTOGETHER IGNORED T H E EXPENSES INCURRED AFTER MAKING THE WITHDRAWAL FROM THE SAID BANK ACCOUN T. FOR YOUR HONOUR'S KIND PERUSAL, IT IS SUBMITTED THAT THE CLOSING BALANCE IN THE SAID TWO ACCOUNTS WAS ONLY TO THE EXTENT OF RS.3,524/ - . THUS , THE ENTIRE RECEIPTS WERE ALMOST WITHDRAWN AND INCURRED ON THE TRUCK PLYING BUSINESS . IN THESE CIRCUMSTANCES WE REQUEST YOUR GOOD SELF TO ALLOW THE EXPENSES IF THE RECEIPTS ARE CONSIDERED, AS THE LD. A.O. HAS ONLY LOOK THE CREDIT SIDE AND HAS IGNORED THE DEBIT SIDE OF THE BANK ACCOUNT. THE APPELLANT HAS ALREADY SHOWN THE 'INCOME EARNED ON ACCOUNT OF THE TRUCK PLYIN G BUSINESS U/S 44 AE OF THE I, T. ACT, 1961 ONLY THESE ACCOUNTS WERE LEFT TO BE MENTIONED. 12.1 FROM THE ABOVE PARA OF THE WRITTEN SUBMISSIONS OF THE ASSESSEE REPRODUCED BY LEARNED CIT(A), WE FIND THAT IT IS THE CLAIM OF THE ASSESSEE THAT THE ENTIRE DEPOSIT IN THESE ACCOUNTS R EPRESENTS THE RECEIPTS ON ACCOUNT OF TRUCK PLYING BUSINESS IN SHAPE OF FREIGHT FROM VARIOUS PA RTIES AND THE SAME WERE BEING WITHDRAWN REGULARLY FOR MAKING THE PAYMENTS RELATING TO THE TRUCKS LIKE DIESEL, DRIVER'S SALARY, MAINTENANCE AND OTHER MISC. ROAD EXPENSES INCURRED BY THE DRIVERS AND THE ASSESSEE HAS SHOWN THE INCOME FROM TRUCK PLYING BUSINES S AS PER PROVISIONS OF SECTION 44 AE OF THE I.T. ACT . WHEN WE EXAMINE THE VERACITY OF THIS CONTENTION, WE FIND THAT COPY OF ORIGINAL RETURN OF INCOME FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 1997 - 98 TO 2001 - 02 IS AVAILABLE ON PAGES 6 TO 18 OF THE PAPER B OOK. AS PER THE SAME, IN ASSESSMENT YEAR 1997 - 98, THE ASSESSEE HAS DISCLOSED NET INCOME FROM TRUCK PLYING BEING TRUCK NO. UAN 9214 AT RS.24,000/ - . SIMILARLY IN ASSESSMENT YEAR 1998 - 99 RS.24,000/ - WAS DISCLOSED AS INCOME IN RESPECT OF THE SAME TRUCK AND R S.2,000/ - WAS DISCLOSED FOR ANOTHER TRUCK NO. UP 78B 3175 PURCHASED ON 25/03/98 AND IN THIS MANNER , TOTAL INCOME AS PER 9 SECTION 44AE WAS WORKED OUT AT RS.26,000/ - BUT THE ASSESSEE DISCLOSED THE INCOME OF RS.36,000/ - IN THAT YEAR. SIMILARLY, IN ASSESSMENT YEAR 1999 - 2000, THE ASSESSEE DISCLOSED INCOME OF RS.48,000/ - IN RESPECT OF BOTH THESE TRUCKS. FOR ASSESSMENT YEAR 2000 - 2001 ALSO, SAME AMOUNT WAS DISCLOSED IN RESPECT OF THESE TRUCKS. FOR ASSESSMENT YEAR 20001 - 2002 ALSO, THE ASSESSEE WORKED OUT THE INCOM E IN RESPECT OF THESE TWO TRUCKS AND ONE MORE TRUCK AT RS.72,000/ - BUT DECLARED INCOME OF RS.90,000/ - . IN THE LIGHT OF THESE FACTS, WE ALSO EXAMINE THE FINDING OF THE ASSESSING OFFICER IN THE ASSESSMENT ORDER ON PAGES 5 TO 7 OF THE ASSESSMENT ORDER AND TH ERE , IT IS NOTED THAT IN COURSE OF BLOCK ASSESSMENT PROCEEDINGS , INFORMATION U/S 133(6) WAS CALLED FOR FROM M/S DINESH OILS LTD., KANPUR REGARDING THE BUSINESS TRANSACTION WITH THE ASSESSEE DURING THE BLOCK PERIOD AND IT WAS INDICATED BY THAT COMPANY THAT THEY HAVE PAID CERTAIN FREIGHT CHARGES TO THE ASSESSEE ON DIFFERENT DATES I.E. FINANCIAL YEAR 1998 - 99 AND 1999 - 2000. THEREAFTER, THE ASSESSING OFFICER EXAMINED THE ASSESSEE AND THE STATEMENT WAS OBTAINED ON 27/08/2004 OF THE ASSESSEE. THEREAFTER ON PAGE NO. 7, IT IS NOTED BY THE ASSESSING OFFICER THAT AFTER ASCERTAINING THE DETAILS OF THE BANKS WHERE THE CHEQUES WERE PRESENTED FOR COLLECTION BY THE ASSESSEE, COPIES OF BANK STATEMENTS RELATING TO THE BLOCK PERIOD WAS OBTAINED FROM THE BANKS AND IT WAS FOUN D THAT THE ASSESSEE IS MAINTAINING TWO BANK ACCOUNTS I.E. SB ACCOUNT NO. 1863 WITH ALLAHABAD BANK AND SB ACCOUNT NO. 709 WITH UNITED MERCANTILE CO - OPERATIVE BANK LTD . THEREAFTER THE ASSESSING OFFICER HAS WORKED OUT YEAR - WISE POSITION OF DEPOSIT IN THESE A CCOUNTS AND THE SAME IS TABULATED ON PAGE NO. 8 OF THE ASSESSMENT ORDER AND THE TOTAL DEPOSIT IN THESE ACCOUNTS DURING FINANCIAL YEAR 1996 - 97 TO 2002 - 03 WAS NOTED AT RS.3,75,653/ - AND THE ASSESSING OFFICER MADE THE ADDITION OF ENTIRE SUCH DEPOSIT. WHEN TH ESE TWO FACTS ARE EXAMINED TOGETHER, IT COMES OUT THAT THE DEPOSIT IN BANK ACCOUNTS WERE IN RESPECT OF RECEIPT OF FREIGHT CHARGES FROM VARIOUS CUSTOMERS AND THE ASSESSEE HAS DISCLOSED INCOME FROM TRUCKS UNDER THE PROVISIONS OF SECTION 44AE OF THE 10 ACT. LEA RNED CIT(A) HAS DECIDED THE ISSUE ON THE BASIS THAT THE CONDUCT OF THE ASSESSEE IN NOT DISCLOSING THESE BANK ACCOUNTS RAISES SUSPICION THAT SOMETHING IS AMISS. HE HAS FURTHER STATED IN PARA NO. 6.1.3 THAT EITHER THE ASSESSEE HAD MORE TRUCKS OR UNACCOUNTED MONEY IS BEING ROUTED THROUGH THESE ACCOUNTS. WE ARE OF THE CONSIDERED OPINION THAT ON THE BASIS OF SUSPICION, THE ADDITION IS NOT JUSTIFIED. IF THE ASSESSEE WAS HAVING MORE TRUCKS AND FOR THAT REASON , THE ASSESSEE IS NOT COVERED U/S 44AE OF THE ACT THEN SOME EVIDENCE SHOULD HAVE BEEN BROUGHT ON RECORD BY THE ASSESSING OFFICER TO SHOW THAT THE ASSESSEE WAS HAVING MORE TRUCKS AND THEREFORE, THE ASSESSEE CANNOT GET THE BENEFIT OF SECTION 44AE. EVEN IF T HAT IS FACT THAT THE ASSESSEE IS NOT COVERED U/S 44AE THEN ALSO IT IS ADMITTED POSITION THAT THE DEPOSIT IN THE BANK ACCOUNTS IS RELATABLE TO FREIGHT CHARGES AND THEREFORE, THE TOTAL AMOUNT CANNOT BE ADDED AS INCOME OF THE ASSESSEE BECAUSE FOR EARNING FREI GHT CHARGES, EXPENSES ARE TO BE INCURRED AND TO BE ALLOWED AND WHEN THE ASSESSEE ITSELF HAS SHOWN INCOME IN EACH YEAR ON ACCOUNT OF OPERATING TRUCKS, WHICH IS SUBSTANTIAL WHEN COMPARED WITH THESE ACCOUNTS , NO FURTHER ADDITION IS JUSTIFIED BECAUSE AGAINST T OTAL DEPOSIT OF RS.3,75,653/ - IN THESE BANK ACCOUNTS DURING FINANCIAL YEAR 1996 - 97 TO 2002 - 03, THE ASSESSEE HAS SHOWN INCOME FROM TRUCK PLYING OF RS.24,000/ - IN ASSESSMENT YEAR 1997 - 98, RS.36,000/ - IN ASSESSMENT YEAR 1998 - 99, RS.48,000/ - IN ASSESSMENT YEA R 1999 - 2000, RS.48,000/ - IN ASSESSMENT YEAR 2000 - 2001 AND RS.90,000/ - IN ASSESSMENT YEAR 2001 - 02 TOTALING TO RS.2.4 6 LAC IN ASSESSMENT YEAR 1997 - 98 TO ASSESSMENT YEAR 2001 - 02. IT IS ALSO SEEN THAT AS PER THE DETAILS OF DEPOSIT IN BANK ACCOUNT ALSO, AS APP EARING IN PARA 26 OF THE ASSESSMENT ORDER, THERE WAS NO DEPOSIT IN BANK ACCOUNT AFTER FINANCIAL YEAR 2000 - 2001. HENCE, IN THE FACTS OF THE PRESENT CASE, THE ADDITION IS NOT JUSTIFIED. 13. AS PER ABOVE DISCUSSION, WE HAVE SEEN THAT EVEN ON MERIT, THE ADDI TION MADE BY THE ASSESSING OFFICER IS NOT JUSTIFIED AND THEREFORE, 11 VARIOUS JUDGMENTS CITED BY ASSESSEE REGARDING TECHNICAL OBJECTION THAT NO ADDITION CAN BE MADE IN BLOCK ASSESSMENT BECAUSE NO ADVERSE MATERIAL WAS FOUND IN SEARCH, IS NOT REQUIRED TO BE EXA MINED BECAUSE IT WILL BE OF ACADEMIC INTEREST ONLY. THE ADDITION S ARE DELETED. 14. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 17 /07/2015 *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR