SHRI BANDA BALAJI RAO, Pune V. DCIT, Pune

ITA 752/PUN/2012

• Counselvise Citation: 75224514 RSA 2012
• Duration Of Justice: 1 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 05-02-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 13-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KUMAR
• Assessee Lawyers: SUNIL PATHAK
• Keywords: Unexplained expenditure; Corroborative evidences

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NOS.748, 749 & 750/PN/2012 (A.YS. 2005-06, 2006-07 & 2008-09) ACIT, CENTRAL CIRCLE 1(2), PUNE APPELLANT VS. SHRI BANDA BALAJI RAO VENKATESH FARM, S.NO.95/1, NDA ROAD, VILLAGE-MAUJE WARJE, TAL. HAVELI, PUNE 411023 PAN: AARPB9101C RESPONDENT ITA NO.752/PN/2012 (A.Y. 2008-09) SHRI BANDA BALAJI RAO VENKATESH FARM, S.NO.95/1, NDA ROAD, VILLAGE-MAUJE WARJE, TAL. HAVELI, PUNE 411023 PAN: AARPB9101C APPELLANT VS. ACIT, CENTRAL CIRCLE 1(2), PUNE RESPONDENT ASSESSEE BY : S/SHRI SUNIL PATHAK AND NIKHIL PATHAK DEPARTMENT BY : SHRI NAREN DRA KUMAR, CIT DATE OF HEARING : 05.02.2014 DATE OF ORDER : 28.02.2014 ORDER PER BENCH: THREE APPEALS FILED BY THE REVENUE AND ONE BY THE ASSESSEE PERTAIN TO THE SAME ASSESSEE FOR DIFFERENT YEARS. SO THESE WERE HEARD 2 TOGETHER AND ARE BEING DISPOSED OFF BY THIS CONSOLI DATED ORDER FOR THE SAKE OF CONVENIENCE. 2. IN ITA NO.750/PN/2012, THE REVENUE HAS FILED THE APPEAL ON THE FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD CIT(A) HAS ERRED IN DELETING THE ADDITI ON OF 32,00,000/- MADE ON ACCOUNT OF BIRTH DAY PARTY. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD CIT(A) HAS ERRED IN DELETING THE ADDITI ON MADE ON ACCOUNT OF BIRTH DAY PARTY IGNORING THE DECISION OF THE HON'BLE SUPREME COURT IN CASE OF H. M. ESUFALI H. M. ABDULA LI, WHICH IS SQUARELY APPLICABLE TO THIS CASE. 3. THE ORDER OF THE CIT(A) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, AN D MODIFY ANY OF THE ABOVE GROUNDS OF APPEAL. 3. THE ASSESSING OFFICER HAS MADE ADDITION OF 32,00,000/- FOR A.Y. 2008-09 ON ACCOUNT OF UNACCOUNTED EXPENSES ON BIRTH DAY PARTY BY WAY OF EXTRAPOLATION. DURING THE COURSE O F SEARCH, THE DOCUMENTS RELATED TO BUDGET FOR 8 TH DECEMBER PARTY WERE SEIZED. AS PER SAID DOCUMENTS, THE BUDGET FOR 8 TH DECEMBER PARTY WAS AT AROUND 50,00,000/-. DURING THE POST SEARCH ENQUIRY, IT W AS ADMITTED ON BEHALF OF ASSESSEE THAT 22.332 LACS WAS NOT ACCOUNTED IN PERSONAL ACCOUNT OF MR. B. BALAJI RAO. THE QUES TIONS WERE RAISED IN THIS REGARD AND BASED ON IT, THE ASSESSING OFFIC ER HAS MADE ADDITION AND THE SAME WAS DELETED BY THE CIT(A). 3.1 THE SAME HAS BEEN OPPOSED BEFORE US, INTER ALIA STATED THAT THE CIT(A) HAS ERRED IN DELETING THE ADDITION OF 32,00,000/- MADE ON ACCOUNT OF BIRTH DAY PARTY AND THE CIT(A) WAS NOT J USTIFIED IN DELETING THE ADDITION ON ACCOUNT OF BIRTH DAY PARTY BY IGNOR ING THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF H. M. ESUFALI H. M. ABDULALI, WHICH IS SQUARELY APPLICABLE TO THE FACTS OF THE PR ESENT CASE. ON THE OTHER HAND, LEARNED AUTHORIZED REPRESENTATIVE SUPPO RTED THE ORDER 3 OF CIT(A) AND SUPPORT AT THE STRENGTH OF CASE RELIE D BY CIT(A). IN ADDITION, THE LEARNED AUTHORIZED REPRESENTATIVE REL IED ON THE DECISION OF PUNE A BENCH IN THE CASE OF DCIT, CIR CLE 1(2) VS. VENKATESHWARA HATCHERIES P. LTD. IN ITA NOS.742 TO 745/PN/2012 AND ANOTHER, WHEREIN, IT WAS DECIDED AS UNDER: 4.6 WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE AS SESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BE FORE US. WE FIND THE ASSESSING OFFICER DISALLOWED 10% OF THE EX PENSES ON ADHOC BASIS ON THE GROUND THAT THE ASSESSEE WAS UNA BLE TO EXPLAIN OR GIVE CONCRETE EVIDENCE THAT ALL THE EXPE NSES REFERRED TO IN THE TABLE WERE INCURRED WHOLLY AND EXCLUSIVEL Y FOR THE PURPOSE OF BUSINESS AND THAT THERE WAS NO ELEMENT O F PERSONAL USE OR EXPENDITURE THEREIN. WE FIND IN THE ORIGINA L ASSESSMENT FRAMED U/S.143(3) OF THE ACT NO SUCH DISALLOWANCE W AS MADE. ALTHOUGH IN VIEW OF THE DECISIONS CITED BY THE LD. COUNSEL FOR THE ASSESSEE NO DISALLOWANCE ON ACCOUNT OF PERSONAL EXPENDITURE CAN BE MADE IN THE HANDS OF A COMPANY, THE FACT REMAINS THAT THE ASSESSEE WAS UNABLE TO PRODUCE THE FULL SUPPORTING EVIDENCES TO SUBSTANTIATE THAT THE EXPEN DITURE INCURRED WERE WHOLLY AND EXCLUSIVELY FOR THE PURPOS E OF BUSINESS. THEREFORE, THE ENTIRE EXPENDITURE CANNOT BE ALLOWED IN FULL UNDER THE FACTS AND CIRCUMSTANCES OF THIS C ASE. AT THE SAME TIME, THE DISALLOWANCE @5% OF THE TOTAL EXPENS ES SUSTAINED BY THE CIT(A) IN OUR OPINION APPEARS TO B E ON THE HIGHER SIDE. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE DISALLOWANCE OF RS.15 LAKHS FOR A.Y. 2003-04, RS. 1 7 LAKHS FOR A.Y. 2004-05 AND RS.18 LAKHS FOR A.Y. 2005-06 IN OU R OPINION WILL MEET THE ENDS OF JUSTICE. WE HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE IN THE ABOVE YEA RS ARE ACCORDINGLY PARTLY ALLOWED. THEREFORE, THE LEARNED AUTHORIZED REPRESENTATIVE H AS REQUESTED TO UPHOLD THE ORDER OF CIT(A). 3.2 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND M ATERIAL ON RECORD, WE FIND THAT NO INCRIMINATORY MATERIAL HAS BEEN FOUND DURING THE COURSE OF SEARCH AND IN THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS THAT THE ASSESSEE HAS SUPPRESSED PART O F THE EXPENDITURE IN RESPECT OF BIRTH DAY PARTY IN FINANC IAL YEAR 2007-08 RELEVANT TO THE ASSESSMENT YEAR 2008-09. THE ASSES SING OFFICER 4 SIMPLY ATTEMPTED TO EXTRAPOLATE THE EXPENDITURE IN RESPECT OF BIRTH DAY PARTY IN FINANCIAL YEAR 2007-08 ON THE BASIS OF INCRIMINATING EVIDENCE AND MATERIAL FOUND FOR FINANCIAL YEAR 2006 -07 RELEVANT TO THE ASSESSMENT YEAR 2007-08. THE ASSESSING OFFICER HAS NOT APPRECIATED THAT THE WORKING THUS MADE BY HIM WAS N OT BASED ON ANY EVIDENCE OR MATERIAL IN RESPECT OF ASSESSMENT Y EAR UNDER CONSIDERATION I.E. A.Y. 2008-09. DURING THE SEARCH AND IN THE PROCEEDINGS SUBSEQUENT TO THE SEARCH, NO MATERIAL O R EVIDENCE COULD BE RECOVERED OR GATHERED WHICH COULD ESTABLISH THAT THE ASSESSEE HAD SUPPRESSED PART OF EXPENDITURE IN RESPECT OF BIRTHD AY PARTY IN FINANCIAL YEAR 2007-08 RELEVANT TO ASSESSMENT YEAR 2008-09. THE FIGURES TAKEN BY THE ASSESSING OFFICER ARE ON THE B ASIS OF EXTRAPOLATION WHICH COULD NOT BE CONSIDERED AS BASI S FOR COMPUTING SUPPRESSION OF EXPENDITURE ON BIRTHDAY PARTY. THESE ESTIMATION OF SUPPRESSION OF EXPENSES ON BIRTHDAY PARTY IS NOT BA SED ON ANY COGENT MATERIAL OR EVIDENCE. 3.3 MOREOVER, THE ASSESSING OFFICER HAS NOT RECORDE D ANY FINDING IN RESPECT OF BOOKS OF ACCOUNT FOR THE ASSESSMENT YEAR TO THE EFFECT THAT IT CONTAINS ANY MISTAKE OR OMISSION FOR WHICH BOOK RESULTS WERE LIABLE TO BE REJECTED. IN FACT, THE ASSESSING OFFI CER PROCEEDED TO DETERMINE THE INCOME ON THE BASIS OF AUDITED STATEM ENT ALONG WITH THE RETURN OF INCOME. THE EVIDENCE OF SUPPRESSION O F EXPENDITURE ON BIRTHDAY PARTY PERTAINS TO OTHER ASSESSMENT YEAR. EACH YEAR IS AN INDEPENDENT YEAR AND SEPARATE UNIT OF ASSESSMENT AN D NO INCOME COULD BE ESTIMATED FOR ANY ASSESSMENT YEAR ON THE B ASIS OF EVIDENCE FOUND FOR DIFFERENT ASSESSMENT YEARS. THEREFORE, IN THE ABSENCE OF ANY EVIDENCE ON RECORD TO ESTABLISH THAT THE ASSESS EE HAS SUPPRESSED EXPENSES ON BIRTHDAY PARTY FOR A.Y.2008-09, THERE W AS NO JUSTIFICATION FOR MAKING SUCH ADDITION FOR THE SAID YEAR IN THE HANDS OF THE ASSESSEE. 3.4 PUNE BENCH IN THE CASE OF ACIT CENTRAL CIRCLE, AURANGABAD VS M/S RAMDEVO OIL INDUSTRIES PVT LTD. IN ITA NO.1375 TO 1378/ 5 PN/2007 FOR A.YS. 1999-2000 AND 2000-2001 TO 2002-0 3 HAS TAKEN SIMILAR VIEW, WHEREBY, IT WAS UPHOLD THE ORDER OF T HE CIT(A) BY OBSERVING THAT BACKWARD EXTRAPOLATION WAS NOT BASED UPON OR SUPPORTED BY ANY INCRIMINATING MATERIAL FOR THE YEA R UNDER CONSIDERATION EVEN THOUGH THE EXTREME STEP OF SEARC H AT THE PREMISES BELONGING TO THE ASSESSEE HAD ALREADY BEEN TAKEN. REGARDING THE APPLICABILITY OF THE RATIO OF DECISIO N OF HON'BLE SUPREME COURT IN CASE OF H. M. ESUFALI H. M. ABDULA LI (1973) 90 ITR 271 (SC) IS NOT APPLICABLE IN THE FACTS OF THE CASE OF THE ASSESSEE. IN THE SAID CASE, THE FACTS WERE THAT THE ASSESSEE WAS A DEALER IN IRON AND STEEL AND THERE WAS AN INSPECTION OF THE FLYING SQUAD OF THE SALES TAX DEPARTMENT AND THEY FOUND A BILL BOOK FOR THE P ERIOD 1 ST SEPT, 1960 TO 19 TH SEPT, 1960. IT WAS FOUND BY THEM THAT AS PER THE SAID BILL BOOK, THE ASSESSEE HAD AFFECTED SALES OF 31,178/- FOR THAT PERIOD AND WHICH WERE NOT ENTERED IN THE BOOKS. ON THE BASIS OF THE UNACCOUNTED SALES MADE BY THE ASSESSEE FOR 19 DAYS, THE SALES TAX OFFICER ESTIMATED THE TURNOVER FOR THE BALANCE PERI OD OF THAT YEAR. THE ASSESSEE OBJECTED TO THIS ESTIMATION OF THE TUR NOVER FOR THE BALANCE PERIOD OF THAT YEAR. HON'BLE SUPREME COURT HELD THAT THE OFFICER COULD ESTIMATE THE TURNOVER FOR THE BALANCE PERIOD OF THE SAME YEAR PROVIDED IT IS BASED ON RATIONAL BASIS. HENCE, THE FACTS IN H.M. ESUFALI H.M. ABDULALI (SUPRA), TURNOVER WAS ESTIMAT ED FOR THE SAME YEAR. IN CASE BEFORE US, THE EVIDENCE WAS FOUND FO R ONE YEAR, ON THE BASIS OF SAME, THE TURNOVER OF THE OTHER YEARS COUL D NOT BE ESTIMATED. ACCORDINGLY, THE DECISION IN THE CASE O F H.M. ESUFALI H.M. ABDULALI (SUPRA) IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE BECAUSE THERE WAS NO EVIDENCE FOUND DURING SEARCH T HAT THE ASSESSEE HAD SUPPRESSED THE EXPENDITURE OF BIRTH DA Y PARTY IN FINANCIAL YEAR RELEVANT TO THE ASSESSMENT YEAR UNDE R CONSIDERATION. 3.5 IN VIEW OF ABOVE, THE CIT(A) HAS RIGHTLY HELD T HAT THE ADDITION OF 32,00,000/- IS NOT WARRANTED ON THE FACTS OF THE C ASE, THEREFORE, HE RIGHTLY DIRECTED THE ASSESSING OFFICER TO DELETE TH E SAME. WE UPHOLD THE SAME. 6 4. SIMILAR ISSUES AROSE IN ITA NOS.748 AND 749/PN/2 012 FOR A.YS. 2005-06 AND 2006-07 FILED BY REVENUE RESPECTIVELY. FACTS BEING SIMILAR, SO FOLLOWING THE SAME REASONING, WE ARE NO T INCLINED TO INTERFERE WITH THE FINDINGS OF CIT(A) WHO HAS DELET ED THE ADDITION MADE TOWARDS EXPENSES ON BIRTH DAY PARTY. WE UPHOL D THE SAME. 5. IN ITA NO.752/PN/2012, THE ASSESSEE HAS FILED TH E APPEAL ON THE FOLLOWING GROUNDS: 1. THE LEARNED CIT(A) ERRED IN CONFIRMING ADDITION TO THE EXTENT OF RS.10,75,000/- ON ACCOUNT OF ALLEGED UNACCOUNTED EXPENDITURE INCURRED ON PAINTINGS PURCHASED BY THE APPELLANT. 2. THE LEARNED CIT(A) ERRED IN NOT APPRECIATING THAT T HE ACTUAL PAYMENTS RECORDED IN THE BOOKS OF ACCOUNTS OF THE A PPELLANT WERE MUCH MORE THAN THE AMOUNTS NOTED ON THE SEIZED PAPER AND HENCE, THERE WAS NO QUESTION OF ANY UNACC OUNTED PAYMENT MADE BY THE APPELLANT. 3. WITHOUT PREJUDICE, THE LEARNED CIT(A) ERRED IN NOT APPRECIATING THAT THE APPELLANT HAD SIZABLE WITHDRA WALS OF CASH OUT OF WHICH THE ALLEGED CASH PAYMENT COULD HA VE BEEN MADE. 4. THE APPELLANT CRAVES LEAVE TO ADD TO, ALTER, AMEND, MODIFY AND / OR DELETE ANY OR ALL OF THE ABOVE GROUNDS OF APPEAL. 6. THE ASSESSING OFFICER HAS MADE ADDITION OF 15,00,000/- ON ACCOUNT OF CASH EXPENSES FOR PURCHASE OF PAINTINGS. THE MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY WHEREI N, THE ASSESSEE HAS SUBMITTED AS UNDER: 1.1 DURING THE COURSE OF SEARCH, LOOSE PAPER NO. 13 WAS SEIZED AS PART OF BUNDLE NO. 5 OF PARTY PR-1. THE SCANNED COPY OF THE SEIZED PAPER IS REPRODUCED BELOW : PAGE 13 : THE SCANNED COPY OF THE PAGE IS AS UNDER : 2 PCS 750,000.00 CASH PARITOSH SEN 2000,000.00 CHEQUE 2 PCS 925,000.00 CHEQUE NAGESHKAR VISHWANATH 325,000.00 CASH 7 35,000.00 TRAVELLING EXPENSES AND AGENT + 400,000.00 AGENTS BROKERAGE THE ASSESSEE WAS ASKED TO EXPLAIN AS TO WHY IT SHOU LD NOT BE HELD THAT THE EXPENDITURE OF RS.15 LAKHS SHOULD NOT BE TREATED AS A CASH EXPENDITURE FOR PURCHASE OF PAINT INGS. 1.2 THE APPELLANT FILED THE FOLLOWING REPLY : 9 11 THESE PAPERS CONTAIN THE FOLLOWING DETAILS OF PURCHASE OF PAINTING BY B. BALAJI RAO FOR FINANCIAL YEAR 2007-08: PARITOSH SEN RS. 20,00,000 INDIA ART GALLERY RS. 14,21,000 NAGESHKAR VISHWANATH RS. 9,25,000 TRAVELLING EXPENSES RS. 35,000 AGENT BROKERAGE RS. 4,00,000 -------- ---------- TOTAL RS. 47,81, 000 -------- ---------- IN THE PERSONAL BOOKS OF B. BALAJI RAO THE PAYMENTS ARE RECORDED AS UNDER : PAINTING - J. R. NAGESHKAR RS. 9,25,000 - INDIA ART GALLERY RS. 14,21,000 - INDIA ART GALLERY RS. 22,50,000 TRAVELLING RS. 35,00 0 -BROKERAGE RS. 5,62,000 --------- --------- TOTAL RS. 51,93,000 --------- --------- LEDGER EXTRACT OF PAINTINGS A/C IN THE BOOKS OF MR. B. BALAJI RAO ARE ENCLOSED IN ANNEXURE 3. ' WITHOUT PREJUDICE, DURING THE COURSE OF HEARING IT WAS ADDITIONALLY SUBMITTED THAT THE APPELLANT HAS SUBST ANTIAL CASH WITHDRAWALS DURING THE YEAR 2003 TO 2009 AND THUS E VEN IF CASH PAYMENT IS ASSUMED TO BE MADE, THE APPELLANT H AD SUFFICIENT SOURCE FROM WITHDRAWALS.' 6.1 THE ASSESSING OFFICER DID NOT ACCEPT THE ABOVE SUBMISSIONS AND HELD AS UNDER: 'THE ASSESSEES CONTENTION IS CONSIDERED AND NOT FO UND ACCEPTABLE. WHEN IT IS CLEAR THAT THE ASSESSEE HAS MADE CHEQUE PAYMENTS TO THE TUNE OF RS. 13 LAKHS IT IS OBVIOUS THAT HE MUST 8 HAVE MADE CASH EXPENSES OF RS. 15 LAKHS WHICH ARE R EFLECTED ON THE SAME PAPER. THEREFORE, THIS AMOUNT IS TREATED A S THE UNACCOUNTED EXPENDITURE OF THE ASSESSEE FOR A.Y. 20 08-09 AND ADDED TO HIS TOTAL INCOME.' 6.2 THE MATTER WAS CARRIED BEFORE THE FIRST APPELLA TE AUTHORITY WHEREIN VARIOUS CONTENTIONS RAISED BY THE ASSESSEE AND SUBMITTED THAT THE AMOUNT OF 15 LACS CONSIDERED BY THE ASSESSING OFFICER IS THE SUM TOTAL OF CASH OF 7,50,000/- ALLEGEDLY PAID TO PARITOSH SEN, 3,25,000/- CASH ALLEGEDLY PAID TO NAGESHWAR VISHWA NATH, 35,000/- ALLEGEDLY SPENT ON TRAVEL EXPENSES AND 4,00,000/- BEING BROKERAGE ALLEGEDLY PAID. IT WAS SUBMITTED THAT IN THE BOOKS OF THE ASSESSEE THE TRAVEL AND BROKERAGE EXPENSES WERE DUL Y REFLECTED AT 35,000/- AND 5,62,000/- RESPECTIVELY AS AGAINST 35,000/- AND 4,00,000/- MENTIONED ON THE SEIZED PAPERS. THUS TH E ADDITION OF 35,000/- AND 4,00,000/- WAS NOT JUSTIFIED. IT WAS FURTHER SUBMITTED THAT THE SEIZED PAPER WAS ONLY A PROPOSAL AND SUBSEQUENTLY THE ENTIRE PAYMENT FOR PAINTINGS WAS M ADE BY CHEQUE. IT SHOWS THAT THE AMOUNT RECORDED IN THE BOOKS OF A CCOUNTS TOWARDS PAINTINGS WAS MUCH HIGHER THAN THAT RECORDED ON THE SEIZED PAPER. THUS, EVEN OTHERWISE WITHOUT ADMITTING THAT ANY CAS H WAS PAID, THE ASSESSEE HAS CLAIMED THAT HE HAS SUBSTANTIAL DRAWIN GS AND THE CASH PAYMENT IF ANY WAS COVERED BY THE DRAWINGS MADE BY THE ASSESSEE. 6.3 CIT(A) HAVING CONSIDERED THE SUBMISSIONS, OBSER VED THAT THE ASSESSEE'S CONTENTION IS CORRECT AND THE ADDITION T OWARDS BROKERAGE AND TRAVEL EXPENSES AND SAME IS NOT JUSTIFIED. AS REGARDS THE REMAINING AMOUNT OF 7,50,000/- ALLEGEDLY PAID TO PARITOSH SEN AND 3,25,000/- ALLEGEDLY PAID TO NAGESHWAR VISHWANATH, THE CONTENTION OF THE ASSESSEE HAS BEEN THAT IN HIS BOO KS, PAYMENTS MADE FOR PAINTINGS AS RECORDED IN HIS BOOKS OF ACCO UNTS WERE SUBSTANTIALLY HIGHER THAN THAT MENTIONED IN THE SEI ZED PAPER. THEREFORE, THE ASSESSEE'S CLAIM WAS THAT THE ABOVE SEIZED PAPER WAS ONLY A PROPOSAL. SUBSEQUENTLY, THE ENTIRE PAYMENT WAS MADE BY CHEQUE. HOWEVER, NOTHING HAS BEEN BROUGHT ON RECORD TO ESTABLISH 9 THAT THE HIGHER PAYMENT MADE BY CHEQUE WAS IN LIEU OF THE CASH AMOUNT MENTIONED IN THE SEIZED PAPER. UNDER THE CIR CUMSTANCES, THE CIT(A) HAS NOT AGREED WITH THE FINDINGS OF THE ASSESSING OFFICER THAT THE CASH AMOUNTS OF 7,50,000/- AND 3,25,000/- WERE PAID TO THE RESPECTIVE PARTIES. THEREFORE, ADDITION ON ACC OUNT OF CASH PAYMENT FOR PAINTING TO THE EXTENT OF 10,75,000/- ( 7,50,000/- PAID TO PARITOSH SEN + 3,25,000/- PAID TO NAGESHWAR VISHWANATH) OUT OF TOTAL ADDITION OF 15,00,000/- WAS CONFIRMED. 6.4 THE SAME HAS BEEN OPPOSED BEFORE US, INTER ALIA SUBMITTED THAT THE CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDI TION TO THE EXTENT OF 10,75,000/- ON ACCOUNT OF ALLEGED UNACCOUNTED EXPE NDITURE INCURRED ON PAINTING PURCHASED BY THE ASSESSEE. TH E CIT(A) HAS FAILED TO APPRECIATE THAT ACTUAL PAYMENT RECORDED I N BOOKS OF ACCOUNTS OF ASSESSEE WERE MUCH HIGHER THAN THE AMOU NT RECORDED IN SEIZED PAPERS. HENCE, THERE WAS NO JUSTIFICATION O F ANY UNACCOUNTED PAYMENT MADE BY THE ASSESSEE. ACCORDINGLY, THE ADD ITION SHOULD BE DELETED. ON THE OTHER HAND, LEARNED DEPARTMENTAL R EPRESENTATIVE HAS SUPPORTED THE ORDER OF AUTHORITIES BELOW. 6.5 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND M ATERIAL ON RECORD, WE FIND THAT THE ASSESSING OFFICER MADE ADD ITION OF 10,75,000/- ( 7,50,000/- ALLEGED TO HAVE BEEN PAID TO PARITOSH S EN + 3,25,000/- ALLEGED TO HAVE BEEN PAID TO NAGESHKAR VISHWANATH) ON ACCOUNT OF ALLEGED UNACCOUNTED EXPENDITURE INCUR RED ON PAINTING PURCHASED BY THE ASSESSEE. THE STAND OF ASSESSEE H AS BEEN THAT IT WAS NOTHING EXCEPT PROPOSAL. IT WAS CLAIMED THAT S UBSEQUENTLY, THE ENTIRE PAYMENT WAS MADE BY CHEQUE, LET THIS STAND B E VERIFIED AS PER FACT AND LAW. AGREEING TO THE STAND OF ASSESSEE AN D IN THE INTEREST OF JUSTICE, WE RESTORE THIS ISSUE TO THE ASSESSING OFF ICER WITH A DIRECTION TO DECIDE THE SAME AS PER FACT AND LAW AFTER PROVID ING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. IN RESULT, THIS APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 10 7. IN THE RESULT, ALL REVENUES APPEALS ARE DISMISS ED AND THAT OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. PRONOUNCED IN THE OPEN COURT ON THIS THE 28 TH DAY OF FEBRUARY, 2014. SD/- SD/- (G.S. PANNU) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 28 TH FEBRUARY, 2014 GCVSR COPY TO:- 1. DEPARTMENT 2. ASSESSEE 3. THE CIT(A)-CENTRAL, PUNE 4. THE CIT-CENTRAL, PUNE 5. THE DR, A BENCH, I.T.A.T., PUNE. 6. GUARD FILE BY ORDER //TRUE COPY// SENIOR PRIVATE SECRETARY, I.T.A.T., PUNE