BABAN SHIVRAM KADAM, MUMBAI V. ACIT 26(1) (ERSTWHILE), MUMBAI

ITA 7591/MUM/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5160 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: misc
• Appeal Filed On: 27-12-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ARAVIND KUMARDR
• Assessee Lawyers: RAJESH B GUPTE
• Keywords: Unexplained investment; Gift; Salary income; Additional evidence
• Section: 148; 142(1)

Judgement Text

1 ITA1013 & 2708/MUM/2016 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B, MUMBAI BEFORE SHRI SANDEEP GOSAIN (JUDICIAL MEMBER) AND SHRI G.MANJUNATHA (ACCOUNTANT MEMBER) I.T.A NO.7591 TO 7593/MUM/2016 (ASSESSMENT YEAR: 1997-98, 2002-03 AND 2003-04) SHRI. BABAN SHIVARAM KADAM NO. 34/32, RSC-13, GORAI LINK ROAD, BORIVALI(W), MUMBAI-400092 PAN: AGLPK3367M VS ACIT, -34(1)(2), MUMBAI APPELLANT RESPONDENT I.T.A.NO.7594/MUM/2016 & 7595/MUM/2016 (ASSESSMENT YEAR: 1997-98 AND 2002-03) SMT. JAYA BABAN KADAM NO. 34/32, RSC-13, GORAI LINK ROAD, BORIVALI(W), MUMBAI-400092 PAN: ABQPA3306A VS ACIT, -34(1)(2), MUMBAI APPELLANT RESPONDENT APPELLANT BY SHRI RAJESH.B.GUPTE, ADVOCATE RESPONDENT BY SHRI. ARAVIND KUMAR,(DR) DATE OF HEARING 09-01-2019 DATE OF PRONOUNCEMENT 01-02-2019 O R D E R PER G MANJUNATHA, AM: THESE FIVE APPEALS FILED BY DIFFERENT ASSESSEES A RE DIRECTED AGAINST SEPARATE, BUT IDENTICAL AND INTERCONNECTED ORDERS O F THE LD. CIT(A)-46, MUMBAI, ALL EVEN DATED 31-08-2016, 06-09-2016 AND 0 7-09-2016 FOR THE AY 1997-98, AY 2002-03 AND AY 2003-04. SINCE, FACTS ARE IDENTICAL AND ISSUES ARE INTERCONNECTED, FOR THE SAKE OF CONVENIE NCE, THESE APPEALS WERE HEARD TOGETHER AND ARE DISPOSED OF BY THIS CON SOLIDATED ORDER. 2 ITA1013 & 2708/MUM/2016 2. BOTH ASSESSEES HAVE TAKEN NUMBER OF GROUNDS IN THEIR RESPECTIVE APPEALS, BUT, THE ISSUES INVOLVED IN THESE APPEALS ARE MAINLY ON ADDITIONS TOWARDS UNEXPLAINED INVESTMENTS IN VARIOUS ASSETS A ND INVESTMENTS IN THEIR NAME AND THEIR CHILDRENS NAME AND ALSO CASH DEPOSITS IN BANK ACCOUNTS, WHICH ARE EMERGED FROM THE PANCHANAMA DRA WN BY THE ACB (ANTI CORRUPTION BUREAU) DURING THE COURSE OF SEARC H IN THEIR RESIDENCE. WE, THEREFORE, DEEM IT APPROPRIATE NOT TO REPRODUCE GROUNDS OF APPEAL TAKEN IN EACH APPEAL, RATHER, PROCEED TO DISPOSE OF APPEALS, ON THE BASIS OF ISSUES INVOLVED IN THESE APPEALS. ITA. NO. 7591 TO 7593/MUM/2016- SHRI BABAN SHIVARAM K ADAM 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS A STATE GOVT. EMPLOYEE DERIVING SALARY INCOME. HE IS AN ACCUSED I N MPSC SCAM. THE ACB CONDUCTED SEARCH IN THE RESIDENCE OF THE ASSESS EE. DURING SEARCH, VARIOUS DOCUMENTS AND INVESTMENTS WERE FOUND AND A PANCHNAMA WAS DRAWN. THE SAID INFORMATION WAS PASSED ON TO THE AS SESSING OFFICER. THE ASSESSEE DID NOT FILED REGULAR RETURNS OF INCOME. T HE AO REOPENED ASSESSMENT ON THE BASIS INFORMATION RECEIVED FROM T HE ACB AND ACCORDINGLY, A NOTICE U/S 148 DATED 11-03-2014 WAS ISSUED AND SERVED ON THE ASSESSEE. THE ASSESSEE DID NOT FILE RETURN IN R ESPONSE TO 148 NOTICE, BECAUSE HE WAS IN JUDICIAL CUSTODY SINCE 2-7-2002. THEREAFTER, THE AO ISSUED VARIOUS NOTICES U/S 142(1) ALONG WITH QUESTI ONNAIRE AND CALLED FOR VARIOUS DETAILS. THE ASSESEEE DID NOT ATTEND FOR HE ARING, BUT REPLIED TO SHOW-CAUSE NOTICE ISSUED BY THE AO AND FURNISHED EX PLANATION WITH 3 ITA1013 & 2708/MUM/2016 REGARD TO VARIOUS ISSUES RAISED BY THE AO. THE AO C OMPLETED ASSESSMENT U/S 144, R.W.S. 147 OF THE INCOME TAX ACT, 1961, ON 31-03-2005 BY MAKING VARIOUS ADDITIONS WHICH ARE MAINLY BASED ON PANCHNAMA DRAWN BY THE ACB DURING COURSE OF SEARCH CONDUCTED IN THE RE SIDENCE OF THE ASSESSEE. 4. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE FIRST APPELLATE AUTHORITY. THE ASSESSEE HAS FILED CERTAIN ADDITIONA L EVIDENCES IN SUPPORT OF HIS CASE IN RESPECT OF VARIOUS ADDITIONS MADE BY THE AO. THE MAIN CONTENTION OF THE ASSESSEE BEFORE THE LD. CIT(A) AR E THAT THE AO HAS MADE ADDITIONS TOWARDS VARIOUS INVESTMENTS IN THE N AME OF HIS FAMILY MEMBERS, EVEN THOUGH SAID INVESTMENTS ARE NOT BELON GS TO HIM, AND ALSO SOURCES FOR INVESTMENTS HAS BEEN EXPLAINED WITH COM PLETE DETAILS. THE CIT(A) FORWARDED ADDITIONAL EVIDENCES TO THE AO FOR HIS COMMENTS AND VERIFICATION. THE AO VIDE HIS REMAND REPORT DATED 6 -4-2010 COMMENTED ON ADDITIONAL EVIDENCES AND ITS ADMISSIBILITY. THE CIT(A), ON THE BASIS OF EVIDENCES FILED BY THE ASSESSEE AND ALSO TAKEN INTO ACCOUNT REMAND REPORT OF THE AO, PARTLY ALLOWED APPEAL OF THE ASSE SSEE, WHERE SHE HAD DELETED CERTAIN ADDITIONS WHEREVER THE ASSESSEE COU LD FILE NECESSARY DETAILS. HOWEVER, SHE HAD CONFIRMED CERTAIN ADDITIO NS WHEREVER, NO DETAILS HAS BEEN FILED IN SUPPORT OF SAID ADDITIONS . AGGRIEVED BY THE CIT(A) ORDERS, THE ASSESSEE IS IN APPEAL BEFORE US. 4 ITA1013 & 2708/MUM/2016 5. THE FIRST ISSUE THAT CAME UP FOR OUR CONSIDERATI ON FOR AY 1997-98 FROM GROUND NO. 1 OF APPEAL IS ADDITION TOWARDS UNEXPLAI NED INVESTMENTS IN THE NAME OF WIFE AND CHILDREN OF THE ASSESSEE FOR RS. 1 1,42,202/-. THE LD. CIT(A) CONFIRMED ADDITION OF RS. 11,42,202/- OUT OF TOTAL ADDITION OF RS. 25,34,400/- MADE BY THE AO TOWARDS VARIOUS INVESTME NTS IN IDBI BONDS, UTI AND IFCI BONDS IN THE NAME OF WIFE AND CHILDREN FOR THE REASON THAT THE ASSESSEE COULD NOT FILE ANY EVIDENCES IN SUPPOR T OF SOURCE OF INCOME. 6. THE LD. AR FOR THE ASSESSEE SUBMITTED THAT THE L D. CIT(A) WAS ERRED IN CONFIRMING ADDITION EVEN THOUGH SOURCE OF INVEST MENTS HAS BEEN EXPLAINED WITH NECESSARY EVIDENCES. THE LD. AR FURT HER SUBMITTED THAT, FIRST UP ALL THERE IS TOTALING ERROR IN ADDITION MA DE BY THE AO AS PER WHICH THE AO HAD WRONGLY TAKEN INVESTMENT IN THE NAME OF RAKESH KADAM AT RS. 4,14,800 INSTEAD OF RS. 2,34,760 WHICH RESULTED IN ENHANCEMENT OF ADDITION TO THAT EXTENT AND SAID MISTAKE WAS CONTIN UED BEFORE THE CIT(A). INSOFAR AS SOURCE OF INVESTMENTS, IT IS EXPLAINED T HAT THE ASSESSEE FATHER IN LAW MR. N V JADHAV HAS MADE INVESTMENTS IN THE N AME OF HIS DAUGHTER AND GRAND CHILDREN FOR WHICH HE HAD ENOUGH SOURCE F ROM AGRICULTURAL INCOME AND FROM SALE OF FLATS. THE AR FURTHER SUBMI TTED THAT SOME INVESTMENTS ARE MADE IN THE PREVIOUS YEAR 1994 AND 1995, I.E. BEFORE REOPENING ASSESSMENT, THEREFORE THE SAID INVESTMENT S CANNOT BE CONSIDERED AS UNEXPLAINED INVESTMENT. THE LD. DR ON THE OTHER HAND STRONGLY SUPPORTED ORDER OF THE LD. CIT(A). 5 ITA1013 & 2708/MUM/2016 7. WE HAVE HEARD BOTH PARTIES AND PERUSED MATERIALS AVAILABLE ON RECORDS. IT IS AN ADMITTED FACT THAT THE ASSESSMENT HAS BEEN MADE BEHIND THE BACK OF THE ASSESSEE WHICH IS EVIDENT FROM THE FACT THAT HE WAS IN JUDICIAL CUSTODY AND HENCE COULD NOT REPRESENT HIS CASE BEFORE THE AO. IT IS ALSO AN ADMITTED FACT THAT ALL ADDITIONS ARE MAI NLY ON THE BASIS OF REPORT OF THE ACB, WHERE PANCHNAMA WAS DRAWN FOR VARIOUS I NVESTMENTS AND EXPENDITURE. IT IS THE CONTENTION OF THE ASSESSEE T HAT, THOUGH HE HAD FILED VARIOUS DETAILS BEFORE THE CIT(A) IN SUPPORT HIS CA SE, THE LD. CIT(A) IGNORED CERTAIN DETAILS ONLY FOR THE REASON THAT SO URCE OF INVESTMENT HAS NOT BEEN EXPLAINED. THE ASSESSEE HAS FILED CERTAIN DETAILS TO PROVE THAT SAID INVESTMENTS ARE NOT BELONGING TO HIM. HE ALSO FILED CERTAIN DETAILS TO EXPLAIN SOURCE OF INVESTMENTS. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE ISSUE NEEDS TO BE REEXAMINED BY THE AO IN LIGHT OF EVIDENCES FILED BY THE ASSESSEE. HENCE, WE SET ASIDE THE ISSU E TO THE FILE OF THE AO AND DIRECT HIM TO CAUSE NECESSARY VERIFICATION IN L IGHT OF EVIDENCES FILED BY THE ASSESSEE. 8. THE NEXT ISSUE THAT CAME UP FOR OUR CONSIDERATI ON IS ADDITION OF RS. 5,40,000/- TOWARDS INVESTMENTS IN POST OFFICE DEPOS IT SCHEME. THE ASSESSEE CLAIMS THAT THE POST OFFICES SAVING DEPOSI TS ARE IN JOINT NAME OF HIS FATHER IN LAW N V JADHAV AND HIS CHILDREN AND T HE SOURCE HAS BEEN EXPLAINED BY HIS FATHER IN LAW OUT OF HIS AGRICULTU RAL INCOME. THE ASSESSEE HAS FILED COPIES OF POST OFFICE DEPOSIT ACCOUNTS. W E FIND THAT THE SAID ACCOUNTS HAVE BEEN OPENED IN THE YEAR 1994 AND 1995 . FURTHER, SAID 6 ITA1013 & 2708/MUM/2016 DEPOSITS ARE IN THE JOINT NAME OF ASSESSEE FATHER I N LAW AND HIS CHILDREN. IF SAID DEPOSITS ARE NOT IN THE NAME OF THE ASSESSE E AND SOURCE OF INVESTMENT IS NOT FROM THE ASSESSEE, THEN THE SAME COULD NOT BE REGARDED AS HIS UNEXPLAINED INCOME, PROVIDED THE OT HER PARTY EXPLAINS SOURCE FOR DEPOSITS FROM KNOWN SOURCE OF INCOME. IN THIS CASE, IT APPEARS THAT THE AO HAS MADE ADDITIONS ONLY ON THE BASIS OF ACB REPORT WITHOUT CARRYING OUT FURTHER VERIFICATION. THEREFORE, WE AR E OF THE CONSIDERED VIEW THAT THE ISSUE NEEDS TO BE REEXAMINED BY THE AO IN LIGHT OF EVIDENCES FILED BY THE ASSESSEE. HENCE, WE SET ASIDE THE ISSU E TO THE FILE OF THE AO AND DIRECT HIM TO CAUSE NECESSARY VERIFICATION IN L IGHT OF EVIDENCES FILED BY THE ASSESSEE. 9. THE NEXT ISSUE THAT CAME UP FOR OUR CONSIDERATI ON FOR AY 2002-03 FROM GROUND NO. 1 OF APPEAL IS ADDITION OF RS. 5,58 ,000/- TOWARDS INVESTMENTS IN POST OFFICE DEPOSIT SCHEME. THE ASSE SSEE CLAIMS THAT POST OFFICES SAVING DEPOSITS ARE IN JOINT NAME OF HIS FA THER IN LAW N V JADHAV AND HIS CHILDREN AND THE SOURCE HAS BEEN EXPLAINED BY HIS FATHER IN LAW OUT OF HIS AGRICULTURAL INCOME. THE ASSESSEE HAS FI LED COPIES OF POST OFFICE DEPOSIT ACCOUNTS. WE FIND THAT THE SAID ACCOUNTS HA VE BEEN OPENED IN THE YEAR 1994 AND 1995. FURTHER, SAID DEPOSITS ARE IN T HE JOINT NAME OF ASSESSEE FATHER IN LAW AND HIS CHILDREN. IF SAID DE POSITS ARE NOT IN THE NAME OF THE ASSESSEE AND SOURCE OF INVESTMENT IS NO T FROM THE ASSESSEE, THEN THE SAME COULD NOT BE REGARDED AS HIS UNEXPLAI NED INCOME, PROVIDED THE OTHER PARTY EXPLAINS SOURCE FOR DEPOSITS FROM K NOWN SOURCE OF 7 ITA1013 & 2708/MUM/2016 INCOME. IN THIS CASE, IT APPEARS THAT THE AO HAS MA DE ADDITIONS ONLY ON THE BASIS OF ACB REPORT WITHOUT CARRYING OUT FURTHE R VERIFICATION. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE I SSUE NEEDS TO BE REEXAMINED BY THE AO IN LIGHT OF EVIDENCES FILED BY THE ASSESSEE. HENCE, WE SET ASIDE THE ISSUE TO THE FILE OF THE AO AND DI RECT HIM TO CAUSE NECESSARY VERIFICATION IN LIGHT OF EVIDENCES FILED BY THE ASSESSEE. 10. THE NEXT ISSUE THAT CAME UP FOR OUR CONSIDERATI ONS FOR AY 2002-03 VIDE GR. NO. 2 IS ADDITION OF RS. 50,000/- TOWARDS UNEXPLAINED TOUR EXPENSES. THE AO MADE ADDITIONS TOWARDS KERALA TOUR EXPENSES ON THE BASIS OF ACB REPORT. THE ASSESSEE CLAIMS TOUR EXPEN SES HAS BEEN SPONSORED BY HIS BROTHER IN LAW GANESH. WE FIND THA T THOUGH ASSESSEE CLAIMS, HIS TOUR EXPENSES ARE BORE BY HIS BROTHER I N LAW SHRI. GANESH, BUT NO DOCUMENTARY EVIDENCE HAS BEEN FILED IN SUPPORT O F HIS ARGUMENTS. WE, THEREFORE, CONFIRMED ADDITION MADE TOWARDS UNEXPLAI NED TOUR EXPENSES. 11. THE NEXT ISSUE THAT CAME UP FOR OUR CONSIDERATI ON FOR AY. 2002-03 VIDE GR. NO. 3 IS ADDITION TOWARDS UNEXPLAINED CASH DEPOSIT IN BANK ACCOUNT. THE ASSESSEE HAS DEPOSITED A SUM OF RS. 88 ,000/- CASH INTO BANK, BUT COULD NOT EXPLAIN SOURCE. THOUGH, HE EXPL AINED THAT HE HAD SALARY INCOME OF RS. 1,96,000/- PER ANNUM AND OUT W HICH HE HAD DEPOSITED CASH INTO BANK, CONSIDERING THE SIZE OF S ALARY AND OTHER EXPENSES, IT IS VERY DIFFICULT TO ACCEPT ARGUMENTS OF THE ASSESSEE THAT HE HAD ENOUGH CASH SURPLUS TO EXPLAIN CASH DEPOSIT. TH E LD. CIT(A) AFTER 8 ITA1013 & 2708/MUM/2016 CONSIDERING RELEVANT FACTS HAS UPHELD ADDITION MADE BY THE AO. WE, THEREFORE, DO NOT FIND ANY REASON TO INTERFERE WITH FINDINGS OF LD. CIT(A) AND HENCE REJECT GROUND TAKEN BY THE ASSESSEE. 12. THE NEXT ISSUE THAT CAME UP FOR OUR CONSIDERATI ON FOR AY. 2003-04 VIDE GR. NO. 1 & 2 IS ADDITION TOWARDS UNEXPLAINED INVESTMENTS IN HOUSE HOLD ARTICLES. THE AO HAS MADE ADDITION OF RS. 3,01 ,000/- TOWARDS HOUSE HOLD ARTICLES, LIKE TV, FRIDGE, FURNITURE AND FIXTU RES AND OTHER ARTICLES ON THE BASIS OF REPORT OF ACB. THE ASSESSEE CLAIMS THA T THE AO HAS MADE ADDITION ON THE BASIS OF REPORT OF ACB, WHERE THEY HAVE ESTIMATED COST OF HOUSE HOLD ARTICLES WITHOUT ANY PROOF AS TO PURCHAS ES. HE FURTHER EXPLAINED THAT THOSE HOUSE HOLD ITEMS ARE PURCHASED OVER A PERIOD OUT OF SALARY INCOME. HE, FURTHER SUBMITTED THAT A SIMILAR ADDITION IS MADE IN HIS WIFE NAME FOR HOUSE HOLD ARTICLES, THEREFORE IT AMO UNTS TO DOUBLE ADDITION. 13. WE HAVE HEARD BOTH SIDES AND CONSIDERED RELEVAN T MATERIALS AVAILABLE ON RECORD. NO DOUBT, THE ADDITION TOWARDS HOUSEHOLD ARTICLES IS ON THE BASIS OF ACB REPORT AND SUCH REPORT HAS BEEN PREPARED ON ESTIMATE BASIS, THEREFORE IT IS DIFFICULT TO ACCEPT THE VALUE OF ARTICLES DETERMINED BY THE AO IN ABSENCE OF ANY PROOF AS TO PURCHASES OF THOSE ITEMS. BUT, FACT REMAINS, IT IS FOR THE ASSESSEE TO EXPLAIN SOURCE FOR INVESTMENT IN ANY ASSETS, WHEN SUCH ASSETS ARE FOUN D IN HIS PLACE. IN THIS CASE, THE ARGUMENT OF ASSESSEE IS THAT THOSE HOUSE HOLD ARTICLES ARE PURCHASED OUT OF SALARY INCOME AND ALSO SOME ITEMS ARE PURCHASED BY HIS 9 ITA1013 & 2708/MUM/2016 MOTHER AND BROTHER, BUT SUCH ARGUMENT IS NOT BASED ON ANY EVIDENCE. THEREFORE, WE ARE OF THE VIEW THAT THE ASSESSEE FAI LS TO PROVE SOURCE FOR INVESTMENTS IN HOUSE HOLD ARTICLES AND HENCE, TO TH AT EXTENT WE AFFIRM THE FINDINGS OF THE AO. COMING TO ANOTHER ARGUMENT OF T HE ASSESSEE THAT THE VALUE OF HOUSE HOLD ARTICLES DETERMINED BY THE AO I S NOT REAL VALUE, BUT IT IS ESTIMATE MADE BY THE ACB. THE ONE MORE ARGUMENT IS THAT SIMILAR ADDITION HAS BEEN MADE IN HIS WIFE NAME. WE FIND TH AT THE AO HAS MADE ADDITION ON THE BASIS OF REPORT OF ACB WITHOUT THER E BEING ANY EVIDENCE TO SUPPORT SUCH VALUATION. THEREFORE, WE ARE OF THE VI EW THAT, THE ISSUE NEEDS TO BE SET ASIDE TO THE FILE OF THE AO FOR FUR THER VERIFICATION AND TO DETERMINE CORRECT VALUE OF HOUSE HOLD ARTICLES WITH OUT BEING INFLUENCED BY REPORT OF ACB. FURTHER, IF SIMILAR ADDITION IS MADE IN HIS WIFE NAME, THE ADDITION MADE IN THE HANDS OF ASSESSEE CANNOT BE SU STAINED AS IT AMOUNTS TO DOUBLE ADDITION. THE AO SHALL DECIDE THE ISSUE I N TERMS OF OUR DISCUSSIONS HEREINABOVE. 14. THE NEXT ISSUE THAT CAME UP FOR OUR CONSIDERATI ON FOR AY. 2003-04 IS ADDITION OF RS. 5,04,783/- TOWARDS INTEREST ON POST OFFICE INVESTMENTS. THE AO HAS MADE ADDITION TOWARDS INTEREST ON POST O FFICE DEPOSIT ON THE GROUND THAT THE ASSESSEE HAS INVESTED A SUM OF RS. 56,08,710/- IN VARIOUS FAMILY MEMBERS NAME. IT IS THE CLAIM OF ASS ESSEE THAT OUT OF TOTAL INVESTMENT OF RS. 56,08,710/-, A SUM OF RS. 30,62,0 00/- IS BELONGS TO HIM FOR WHICH HE HAD EXPLAINED SOURCE. ACCORDING TO THE ASSESSEE, OUT OF RS. 12,30,000/- INVESTMENT IN CHIPLIN POST OFFICE, RS. 6,30,000/- WAS 10 ITA1013 & 2708/MUM/2016 INVESTED IN AY 2002-03 AND THE SAME HAS BEEN ACCEPT ED IN SCRUTINY ASSESSMENT AS NOT BELONGS TO HIM. FURTHER, A SUM OF RS. 6,90,000/- IS IN HIS FATHER IN LAW NAME FOR WHICH HE HAD EXPLAINED S OURCE. SIMILARLY, A SUM OF RS. 3,49,000/- IS IN HIS WIFE NAME, WHO IS A SSESSED TO TAX AND HENCE THE SAME COULD NOT BE ASSESSED IN HIS NAME. 15. WE HAVE CONSIDERED RIVAL CONTENTIONS AND PERUSE D RELEVANT MATERIALS AVAILABLE ON RECORD. NO DOUBT, THE SOLE BASIS FOR A DDITION IS PANCHNAMA DRAWN BY THE ACB. IT IS ALSO AN ADMITTED FACT THAT THE ASSESSEE WAS IN JUDICIAL CUSTODY DURING ASSESSMENT PROCEEDINGS AND HENCE COULD NOT EFFECTIVELY REPRESENT HIS CASE BEFORE THE AO. THE A SSESSEE CLAIMS MANY INVESTMENTS NOT BELONG TO HIM FOR WHICH HE HAD FILE D CERTAIN EVIDENCES. ALTHOUGH, HE CLAIMS TO HAVE FILED ALL EVIDENCES BEF ORE THE CIT(A), WE DO NOT AWARE WHETHER THOSE DOCUMENTS ARE AVAILABLE TO THE AO OR NOT, BECAUSE, THE AO IN HIS REMAND REPORT DID NOT ACCEPT ARGUMENTS OF THE ASSESSEE. THEREFORE, WE ARE OF THE VIEW THAT, THIS ISSUE NEEDS TO BE SET ASIDE TO FILE OF THE AO FOR FURTHER VERIFICATION. H ENCE, WE SET ASIDE THE ISSUE TO THE FILE OF AO AND DIRECT HIM TO CAUSE NEC ESSARY VERIFICATION IN LIGHT OF CLAIM OF THE ASSESSEE AND TO DECIDE IN ACC ORDANCE WITH LAW. 16. THE NEXT ISSUE THAT CAME UP FOR OUR CONSIDERATI ON FOR AY 2003-04 IS ADDITION OF RS. 21,667/- TOWARDS UNEXPLAINED FIXED DEPOSIT. THE ASSESSEE CLAIMS THAT FD IS IN JOINT NAME WITH HIS BROTHER AN D SOURCE OF INVESTMENT IS FROM HIS BROTHER. THE AO DID NOT ACCEPT ARGUMENT S OF THE ASSESSEE 11 ITA1013 & 2708/MUM/2016 BECAUSE IT WAS NOT BASED ON ANY EVIDENCES. FACTS RE MAIN UNCHANGED. WE, THEREFORE, DO NOT FIND ANY ERROR IN THE FINDINGS OF LOWER AUTHORITIES AND HENCE, UPHOLD FINDINGS OF LD. CIT(A) AND REJECT GRO UND TAKEN BY THE ASSESSEE. 17. IN THE RESULT, APPEALS FILED BY THE ASSESSEE FO R AY 1997-98, 2002-03 AND 2003-04 ARE PARTLY ALLOWED FOR STATISTICAL PURP OSE. ITA. NO. 7594/MUM/2016 AND 7595/MUM/2016 SMT. JAYA BABAN KADAM 18. THE ONLY ISSUE THAT CAME UP FOR OUR CONSIDERATI ON FOR AY 1997-98 IS ADDITION TOWARDS UNEXPLAINED INVESTMENT IN INTERIOR WORK AT HOUSE. THE AO MADE ADDITION FOR THE REASON THAT NO SOURCE OF I NCOME IS EXPLAINED TOWARDS INVESTMENT IS INTERIOR WORK AND SAID ADDITI ON IS ON THE BASIS OF REPORT OF ACB, WHERE THEY HAVE ESTIMATED COST OF HO USE HOLD ARTICLES WITHOUT ANY PROOF AS TO PURCHASES.. THE ASSESSEE CL AIMS HER FATHER PAID A SUM OF RS. 7,50,000/- TO BUILDER AND THIS FACT WAS MOTIONED IN HIS WILL. THE AO ACCEPTED THE FACT OF INVESTMENT IN HOUSE CON STRUCTION, BUT DID NOT ACCEPT INVESTMENT IN INTERIOR WORK EVEN THOUGH THE AMOUNT PAID TO BUILDER IS INCLUSIVE OF INTERIOR WORK. 19. WE HAVE HEARD BOTH SIDES AND CONSIDERED RELEVAN T MATERIALS AVAILABLE ON RECORD. NO DOUBT, THE ADDITION TOWARDS HOUSEHOLD ARTICLES IS ON THE BASIS OF ACB REPORT AND SUCH REPORT HAS BEEN PREPARED ON 12 ITA1013 & 2708/MUM/2016 ESTIMATE BASIS, THEREFORE IT IS DIFFICULT TO ACCEPT THE VALUE OF INTERIOR WORK DETERMINED BY THE AO IN ABSENCE OF ANY PROOF AS TO PURCHASES OF THOSE ITEMS. BUT, FACT REMAINS, IT IS FOR THE ASSESSEE TO EXPLAIN SOURCE FOR INVESTMENT IN ANY ASSETS, WHEN SUCH ASSETS ARE FOUN D IN HIS PLACE. IN THIS CASE, ASSESSEE CLAIMS THAT HER FATHER HAS PAID AMOU NT TO BUILDER WHICH INCLUDES AMOUNT PAID FOR INTERIOR WORK. IN THIS REG ARD SHE HAS FILED COPY OF WILL EXECUTED BY HER FATHER. THE FACTS ARE NOT CLEA R WHETHER WILL EXECUTED BY HER FATHER IS BEFORE THE DATE OF SEARCH BY THE A CB OR SUBSEQUENT TO THE DATE OF SEARCH, BECAUSE IT IS VERY MUCH RELEVANT TO DECIDE THE ISSUE. FURTHER, THE ORDERS OF THE AO AS WELL AS THE LD. CI T(A) DID NOT THROUGH ANY LIGHT ON THIS ASPECT. THEREFORE, WE ARE OF THE VIEW THAT, THIS ISSUE NEEDS TO BE SET ASIDE TO THE FILE OF THE AO FOR FURTHER V ERIFICATION. HENCE, WE SET ASIDE THE ISSUE TO THE FILE OF AO AND DIRECT HIM TO CAUSE NECESSARY VERIFICATION IN LIGHT OF CLAIM OF THE ASSESSEE AND TO DECIDE IN ACCORDANCE WITH LAW. 20. THE NEXT ISSUE THAT CAME UP FOR CONSIDERATION F OR AY 2002-03 IS ADDITION OF RS. 12,50,000/- IN FIXED DEPOSITS. THE AO MADE ADDITION TOWARDS FIXED DEPOSITS IN VARIOUS BANK FOR THE REAS ON THAT THE ASSESSEE FAILS TO EXPLAIN SOURCE FOR INVESTMENT. THE ASSESSE E CLAIMS THAT HER FATHER HAD GIFTED A SUM OF RS. 12,50,000/- FOR WHICH COPY OF WILL IS FURNISHED TO THE AO. SHE FURTHER CLAIMS THAT SAID AMOUNT HAS BEE N KEPT WITH RAJKUMAR RALHAN OF M/S ANKUR CONSTRUCTIONS IN THE YEAR 1995. AFTER HER FATHER DEATH, THIS AMOUNT WAS RETURNED TO HER BROTHER GANE SH PARASURAM 13 ITA1013 & 2708/MUM/2016 ATHWANKAR AND IN TURN HER BROTHER HAD GIVEN MONEY A FTER HER FATHER DEATH. THIS MOUNT WAS INVESTED IN VARIOUS FIXED DEP OSITS. 21. WE HAVE HEARD BOTH SIDES AND CONSIDERED RELEVAN T MATERIALS AVAILABLE ON RECORD. NO DOUBT, THE ADDITION TOWARDS FIXED DEP OSIT IS PRIMARILY BASED ON ACB REPORT AND COPIES OF DEPOSITS FOUND DURING S EARCH. THE ASSESSEE CLAIMS THAT HER FATHER GIFTED A SUM OF RS. 12,50,00 0/- BEFORE HER MARRIAGE AND SAID AMOUNT WAS KEPT WITH ONE MR. RAJK UMAR RALHAN. SHE FURTHER CLAIMS THAT AFTER HER FATHER DEATH SHE GOT MONEY BACK FROM THE PARTY THROUGH HER BROTHER WHICH WAS INVESTED IN FIX ED DEPOSITS. ALTHOUGH, THESE ARE NEW LINE OF ARGUMENTS WHICH WAS NEVER TAK EN BEFORE THE AO, YET IN THE INTEREST OF JUSTICE, THE CLAIM MADE BY T HE ASSESSEE NEEDS TO BE EXAMINED BY THE AO AS SHE HAS MADE A CLAIM IN LIGHT OF WILL OF HER FATHER. THE FACTS ARE NOT CLEAR WHETHER WILL EXECUTED BY HE R FATHER IS BEFORE THE DATE OF SEARCH BY THE ACB OR SUBSEQUENT TO THE DATE OF SEARCH, BECAUSE IT IS VERY MUCH RELEVANT TO DECIDE THE ISSUE. THEREFOR E, WE ARE OF THE VIEW THAT, THIS ISSUE NEEDS TO BE SET ASIDE TO FILE OF T HE AO FOR FURTHER VERIFICATION. HENCE, WE SET ASIDE THE ISSUE TO THE FILE OF AO AND DIRECT HIM TO CAUSE NECESSARY VERIFICATION IN LIGHT OF CLAIM O F THE ASSESSEE AND TO DECIDE IN ACCORDANCE WITH LAW. 22. THE NEXT ISSUE THAT CAME UP FOR OUR CONSIDERATI ON FOR AY 2002-03 IS ADDITION OF RS. 3,59,000/- TOWARDS CASH DEPOSIT IN BANK. THE AO MADE ADDITIONS, WHEN ASSESSEE COULD NOT EXPLAIN SOURCE O F INCOME FOR CASH 14 ITA1013 & 2708/MUM/2016 DEPOSIT. THE ASSESSEE CLAIMS SHE HAD FURNISHED CASH FLOW STATEMENT WHERE SUFFICIENT CASH BALANCE AVAILABLE TO EXPLAIN CASH DEPOSIT. 23. WE HAVE HEARD BOTH PARTIES AND PERUSED MATERIAL S AVAILABLE ON RECORD. NO DOUBT, THE ASSESSEE COULD NOT EXPLAIN CA SH DEPOSIT WITH HER KNOW SOURCE OF INCOME. THOUGH SHE CLAIMS THAT SHE H AD OPENING BALANCE IN CASH FLOW STATEMENT, SUCH OPENING BALANCE IS NOT SUPPORTED BY ANY DOCUMENTARY EVIDENCE SO AS TO PROVE THAT SHE HAD DE CLARED SOURCE OF INCOME. WE, THEREFORE, FIND NO REASON TO DEVIATE FR OM THE FINDINGS OF THE LOWER AUTHORITIES. HENCE, WE ARE INCLINED TO UPHOLD FINDINGS OF THE LD. CIT(A) AND REJECT GROUND TAKEN BY THE ASSESSEE. 24. THE NEXT ISSUE THAT CAME UP FOR CONSIDERATION FOR AY 2002-03 IS ENHANCEMENT OF SHORT TERM CAPITAL GAIN AND PROFESSI ONAL INCOME BY THE LD. CIT(A). DURING APPELLATE PROCEEDINGS FOR AY 200 3-04 THE ASSESSEE HAS FILED STATEMENT OF STCG OF RS. 2,10,129/- FOR AY 20 02-03. SHE HAD ALSO FILED DETAILS OF INCOME TO BE OFFERED AT RS. 1,18,0 00/- UNDER PROFESSIONAL CHARGES. THE LD. CIT(A) ON THE BASIS OF SELF ADMISS ION OF THE ASSESSEE MADE ENHANCEMENT OF THOSE TWO INCOMES. 25. WE HAVE HEARD BOTH SIDES AND PERUSED RELEVANT M ATERIALS AVAILABLE ON RECORD. NO DOUBT SAID ADDITIONS ARE ON THE BASIS OF SELF ADMISSION. IN FACT, EVEN NOW THE ASSESSEE FAILS TO FILE ANY DETAI LS ABOUT SHORT TERM CAPITAL GAIN. THEREFORE, WE DO NOT SEE ANY REASON T O GIVE BENEFIT TO THE 15 ITA1013 & 2708/MUM/2016 ASSESSEE AND HENCE ADDITION OF RS. 2,10,129/- HAS B EEN CONFIRMED. INSOFAR AS ADDITION OF RS. 1,18,000/- THE ASSESSEE CLAIMS SHE HAD ALREADY ADMITTED SAID INCOME IN HER CASH FLOW STATEMENT AND THE AO HAS MADE ADDITIONS FOR THE SAME, THEREFORE FURTHER ADDITION IS NOT WARRANTED. WE FIND, THE LD. CIT(A), ADDED IMPUGNED AMOUNT ON THE BASIS OF ASSESSEE ADMISSION, WHEREAS SHE CLAIMS THAT THE AO HAD ALREA DY CONSIDERED THIS INCOME FOR ADDITION. FACTS ARE NOT CLEAR. WE, THERE FORE, SET ASIDE THIS ISSUE TO THE FILE OF AO FOR FURTHER VERIFICATION. 26. IN THE RESULT, APPEAL FILED BY THE ASSESSEE FOR AY 1997-98 AND AY 2002-03 ARE PARTLY ALLOWED, FOR STATISTICAL PURPOSE . 27. AS A RESULT, ALL APPEALS FILED BY BOTH ASSESSE E ARE PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 01 ST FEBRUARY, 2019. SD/- SD/- (SANDEEP GOSAIN) (G MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT : 01-02-2019 PK/- COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR /TRUE COPY/ BY ORDER SR.PS, ITAT, MUMBAI