ACIT, New Delhi V. Shri Kuldeep Rai Chawla, New Delhi

ITA 760/DEL/2011

• Counselvise Citation: 76020114 RSA 2011
• Duration Of Justice: 1 year(s) 7 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 02-07-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 07-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DK MISHR A
• Assessee Lawyers: RAJKUMAR CA HEARING ON
• Keywords: Unexplained investment; Gift; Search and seizure; Additional evidence; Valuation report
• Section: 69; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: D NEW DELHI BEFORE SHRI G.D. AGRAWAL, HONBLE VICE-PRESIDENT AN D SHRI I.C.SUDHIR, JUDICIAL MEMBER I.T.A. NO. 760/DEL/2011 ASSESSMENT YEAR: 2007-08 ACIT SH. KULDEEP RAI CHAWLA, CENTRAL CIRCLE-13, VS. C-17, NIZAMUDDIN EAST, NEW DELHI NEW DELHI. PAN: AADPC8728Q (REVENUE) (ASSESSEE) AND C.O. NO.53/DEL/2011 (IN ITA NO. 760/DEL/2011) ASSESSMENT YEAR: 2007-08 SH. KULDEEP RAI CHAWLA, ACIT C-17, NIZAMUDDIN EAST, CENTRAL CIRCLE-13, NEW DELHI NEW DELHI. PAN: AADPC8728Q (ASSESSEE) (REVENUE) REVENUE BY: SHRI D.K. MISHRA, DR. ASSESSEE BY: SHRI RAJKUMAR, CA HEARING ON : 4/07/2012 ORDER PRONOUNCED ON THE DATE: .. ORDER PER I.C.SUDHIR, JM: PARTIES HAVE QUESTIONED THE COMMON FIRST APPELLATE ORDER. THE REVENUE HAS QUESTIONED FIRST APPELLATE ORDER ON THE FOLLOWI NG GROUNDS: 1. THE ORDER OF THE LD. CIT (APPEALS) IS NOT CORRECT IN LAW AND FACTS. ITA NO. 760/DEL/2011 & C.O. NO. 53/DEL/ 2011 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS ERRED IN LAW AND FACTS IN DELETING ADDI TION TOWARDS UNEXPLAINED INVESTMENT IN JEWELLERY AT RS.26,31,990/- FOUND DURING SEARCH WHEREAS NO EXPLANATION WAS FURNISHED TO EXPLAIN SOURCE OF INVESTMENT IN JEWELLERY DURING THE COURSE OF SEARCH AND SEIZURE OPERATIONS UNDER SECTION 132 OF INCOME TAX ACT, 1961 AND EVIDENCE FILED DURING ASSESSMENT WAS AFTER THOUGHT AND COULD NOT BE SUBSTANTIATED. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS ERRED IN LAW AND FACTS IN DELETING ADDI TION OF UNEXPLAINED INCOME OF RS.10,73,000/- OUT OF AN ADDI TION OF RS.13,57,200/- TOWARDS UNEXPLAINED CASH FOUND DU RING SEARCH AFTER ADMITTING ADDITIONAL EVIDENCE UNDER RU LE 46A. 2. THE ASSESSEE HAS RAISED FOLLOWING OBJECTION AGAI NST THE FIRST APPELLATE ORDER: THAT UNDER THE FACTS AND CIRCUMSTANCES, THERE IS NO JUSTIFICATION IN LAW AS WELL AS ON MERITS IN HOLDIN G CASH OF RS.284200/- AS UNEXPLAINED AND CONSEQUENTIALLY IN MAKING AND SUSTAINING THE ADDITION TO THAT EXTENT. 4. THE RELEVANT FACTS ARE THAT SEARCH AND SEIZURE ACTI ON U/S 132 OF THE ACT WAS CARRIED OUT IN SURESH NANDA GROUP OF CASES ON 2 8.2.2007. THE CASE OF THE ASSESSEE WAS CENTRALIZED BY COMMISSIONER OF INC OME TAX VIDE ORDER U/S 127 (2) OF THE ACT. THE ASSESSEE, A PRACTICING LAWY ER, FILED HIS RETURN OF INCOME DECLARING INCOME OF RS.6,19,998/- ON 27.2.20 08 FROM PROFESSION. THE ASSESSEE HAD SHOWN A RECEIPT OF RS.8,62,511/- D URING THE YEAR. AGAINST THIS RECEIPT THE ASSESSEE CLAIMED EXPENSES OF RS.4, 50,454/-. THUS NET INCOME OF RS.4,12,057/- WAS SHOWN FROM THE PROFESSION. DUR ING THE COURSE OF SEARCH ITA NO. 760/DEL/2011 & C.O. NO. 53/DEL/ 2011 3 JEWELLERY WORTH RS.17,85050/- WAS FOUND FROM THE FI RST FLOOR OF C-17, NIZAMUDDIN EAST, NEW DELHI AND JEWELLERY WORTH RS.1 3,86,940/- WAS FOUND FROM THE LOCKER NO. 480 PUNJAB NATIONAL BANK, NIZAM UDDIN WEST, NEW DELHI. REGARDING JEWELLERY WORTH RS.17,85,050/-, TH E ASSESSEE CLAIMED IT TO BE OF HIS WIFE WHO ACCUMULATED IT SINCE THEIR MARRI AGE IN 1967 AS GIFT FROM PARENTS FROM BOTH SIDES AND RELATIVES DURING THE WE DDING. IT WAS SUBMITTED THAT THE WIFE HAS FILED HER WEALTH TAX RETURN DECLA RING THE SAME JEWELLERY. REGARDING JEWELLERY WORTH RS.13,86,940/- FOUND IN T HE LOCKER, THE ASSESSEE EXPLAINED THAT THESE JEWELLERY BELONGS TO HIM, WHIC H WERE INHERITED BY HIM AFTER THE DEMISE OF HIS MOTHER LATE SMT. CHANAN DEV I ALIAS SMT. DHAN DEVI WIFE OF S. GIRDHARA SINGH, WHO EXPIRED IN THE YEAR 1988. THE AO WAS NOT CONVINCED WITH THE EXPLANATION. THE AO AS PER THE G UIDELINES OF CENTRAL BOARD OF DIRECT TAXES AS WELL AS STATUS OF THE ASSE SSEE TREATED THE JEWELLERY BEING 600 GM WORTH AROUND RS.5,40,000/- AT THE TIME AS EXPLAINED. REMAINING JEWELLERY VALUED AT RS.26,31,900/- WAS TR EATED BY HIM AS UNEXPLAINED AND ADDED TO THE TAXABLE INCOME OF THE ASSESSEE UNDER THE PROVISIONS OF SECTION 69 OF THE ACT. THE LD. CIT (A ) HAS DELETED THIS ADDITION AGAINST WHICH REVENUE IS IN APPEAL. 5. DURING THE COURSE OF SEARCH PROCEEDINGS CASH OF RS. 14,57,200/- WAS FOUND. THE AO WAS NOT CONVINCED WITH THE EXPLANATIO N OF THE ASSESSEE ITA NO. 760/DEL/2011 & C.O. NO. 53/DEL/ 2011 4 REGARDING THE SOURCE OF THE AMOUNT AND HE MADE ADDI TION OF RS.13,57,200/- AS UNEXPLAINED INCOME OF THE ASSESSEE OUT OF THE CA SH AMOUNT AFTER TREATING INCOME OF RS.1,00000/- FROM PROFESSION AS EXPLAINED ON ESTIMATE BASIS. THE LD. CIT (A) HAS TREATED RS.10,73,000/- AS EXPLAINED AND HAS DELETED THE SAME WHILE RESTRICTING THE ADDITION TO RS.2,84,200/ - AS UNEXPLAINED. PARTIES HAVE QUESTIONED THIS ACTION OF THE LD. CIT (A). 6. WE HAVE HEARD AND CONSIDERED THE ARGUMENTS ADVANCED BY THE PARTIES IN VIEW OF ORDERS OF THE AUTHORITIES BELOW, MATERIA L AVAILABLE ON RECORD AND THE DECISIONS RELIED UPON. GROUND NO. 1 (DEPARTMENT) 7. THE GROUND IS GENERAL IN NATURE, HENCE DOES NOT NEE D INDEPENDENT ADJUDICATION. GROUND NO. 2 (DEPARTMENT) 8. WE HAVE ALREADY DISCUSSED THE BASIC FACTS ON THE IS SUE WHEREIN ABOVE. DURING THE COURSE OF SEARCH JEWELLERY WORTH RS.31,7 1,990/- WAS FOUND. OUT OF THIS JEWELLERY WORTH RS.17,85,050/- WAS FOUND FR OM THE RESIDENTIAL PREMISES OF THE ASSESSEE I.E. C-17, FIRST FLOOR, NI ZAMUDDIN EAST, NEW DELHI AND RS.13,86,940/- WAS FOUND FROM THE LOCKER NO. 48 0, PNB, NIZAMUDDIN WEST, NEW DELHI. THE AO WAS NOT SATISFIED WITH THE EXPLANATION OF THE ASSESSEE REGARDING THE SOURCE OF THESE JEWELLERY AN D THUS AFTER TREATING THE ITA NO. 760/DEL/2011 & C.O. NO. 53/DEL/ 2011 5 JEWELLERY BEING 600 GM WORTH RS.5,14,000/- AT THAT TIME AS EXPLAINED AS PER THE GUIDELINES OF CBDT, HE TREATED THE REMAINING JE WELLERY WORTH RS.26,31,900/- AS UNEXPLAINED. THE LD. CIT (A) HAS ACCEPTED THE EXPLANATION OF THE ASSESSEE REGARDING THE SOURCE OF THE JEWELLERY AND HAS DELETED THE ADDITION OF RS.26,31,900/-. 9. IN SUPPORT OF THE GROUND THE LD. DR HAS REFERRED TH E CONTENTS OF THE ASSESSMENT ORDER ON THE ISSUE. HE SUBMITTED THAT NO EVIDENCE WAS FURNISHED BY THE ASSESSEE IN SUPPORT OF HIS EXPLANATION OF SO URCE OF THE ABOVE JEWELLERY. THE ASSESSEE HAS TRIED TO EXPLAIN THE JE WELLERY WORTH RS.17,85,050/- AS BELONGING TO HIS WIFE ACCUMULATED SINCE THEIR MARRIAGE IN 1967. THE ASSESSEE EXPLAINED THE SOURCE AS GIFT FRO M PARENTS OF BOTH THE SIDES AND RELATIVES DURING THE WEDDING. IN ADDITION SOME JEWELLERY WERE CLAIMED TO HAVE ACQUIRED DURING HER MARRIED LIFE FR OM HER AGRICULTURAL INCOME. IT WAS CLAIMED THAT NO JEWELLERY WAS ACQUIR ED FROM THE YEAR 2000 TO THE DATE OF SEARCH. THE ASSESSEE ALSO CONTENDED THA T HIS WIFE HAS FILED WHILE TAX RETURN DECLARING THE SAME JEWELLERY. THE LD. CI T (A) HAS ACCEPTED THIS EXPLANATION OF THE ASSESSEE WITHOUT APPRECIATING TH AT THE WIFE HAD FILED HER WEALTH TAX RETURN DECLARING THE JEWELLERY AFTER THE DATE OF SEARCH. THE LD. DR IN THIS REGARD CITED DECISIONS OF HONBLE SUPREME C OURT IN THE CASE OF ITO VS. CH. ATCHAIAH 218 ITR 239 (SUPREME COURT) ITA NO. 760/DEL/2011 & C.O. NO. 53/DEL/ 2011 6 10. HE SUBMITTED FURTHER THAT REGARDING THE SOURCE OF T HE JEWELLERY VALUED AT RS.13,86,940/- FOUND IN THE LOCKER, THE EXPLANAT ION OF THE ASSESSEE REMAINED THAT HE HAD ACQUIRED THIS JEWELLERY FROM H IS MOTHER THROUGH HER WILL. A RECONCILIATION OF THE ITEMS OF JEWELLERY AS PER WILL AND AS PER THE VALUATION REPORT WERE ALSO FURNISHED TO THE AO. THE EXPLANATION WAS DOUBTED BY THE AO IN ABSENCE OF EVIDENCE THAT HIS M OTHER SMT. CHANAN DEVI WAS HAVING THE MEANS TO ACQUIRE THE SAID JEWELLERY. THE LD. CIT (A) HAS HOWEVER ACCEPTED THE EXPLANATION OF THE ASSESSEE WI THOUT APPRECIATING THAT EVEN SOURCE OF SOURCE CAN BE EXAMINED AS PER THE FO LLOWING DECISIONS: 1. CIT VS. BIJU PATNAIK. 160 ITR 674 (ORISSA) 2. ACIT VS. DHANALAXMI STEEL RE-ROLLING MILLS 57 ITD 361(HYD.) 3. PRADIP KUMAR LOYALKA VS. ITO 63 ITD 87 (TM) (PATNA) 11. THE LD. AR ON THE OTHER HAND TRIED TO JUSTIFY THE F IRST APPELLATE ORDER ON THE ISSUE. HE REITERATED THE SUBMISSIONS MADE BE FORE THE AUTHORITIES BELOW. HE SUBMITTED THAT WEALTH TAX ASSESSMENT ON T HE BASIS OF RETURN FILED BY HIS WIFE DECLARING HER JEWELLERY WAS COMPLETED B EFORE THE PRESENT ASSESSMENT OF THE ASSESSEE. SEARCH WAS CONDUCTED AT THE RESIDENCE OF ASSESSEE AND HIS WIFE. THE LOCKER FROM WHERE JEWELL ERY IN QUESTION WAS ITA NO. 760/DEL/2011 & C.O. NO. 53/DEL/ 2011 7 FOUND WAS IN THE JOINT NAME OF ASSESSEE AND HIS WIF E. THE JEWELLERY BELONGED TO THE ASSESSEE THROUGH WILL OF HIS MOTHER WHO DIED IN THE YEAR 1988. THE LD. AR SUBMITTED THAT FATHER OF THE ASSES SEE WAS HAVING AGRICULTURAL INCOME FROM 65 ACRES OF AGRICULTURAL L AND. HE REFERRED PAGE NOS. 22 & 23 OF THE PAPER BOOK I.E. COPIES OF ORIGINAL W ILL AND ITS ENGLISH TRANSLATION. THE WILL IS DULY EXECUTED BY THE MOTHE R OF THE ASSESSEE AND WITNESSED BY 3 PERSONS. AT PAGE NO. 24 OF THE PAPER BOOK HAS BEEN MADE AVAILABLE THE RECONCILIATION OF JEWELLERY SEIZED VI S--VIS WILL OF THE MOTHER. THE LD. AR SUBMITTED THAT THE AO HAS NOT DOUBTED TH E GENUINENESS OF THE WILL AND HE HAS NOT ASPECTED THE EXPLANATION OF THE ASSESSEE IN THIS REGARD ON THE BASIS THAT THERE WAS NO EVIDENCE THAT MOTHER OF THE ASSESSEE WAS HAVING SUFFICIENT SOURCE TO ACQUIRE THE SAID JEWELLERY. TH E LD. AR SUBMITTED THAT THE ASSESSEE CANNOT BE ACCEPTED TO EXPLAIN THE SOUR CE OF ACQUISITION IN THE HANDS OF THE DECEASED MOTHER. 12. CONSIDERING THE ABOVE SUBMISSIONS WE FIND THAT THE LD. CIT (A) HAS DELETED THE ADDITION IN QUESTION ON THE BASIS THAT WIFES JEWELLERY HAD BEEN DECLARED IN HER WEALTH TAX RETURN THOUGH FILED AFTE R THE DATE OF SEARCH BUT DULY VALUED IN HER NAME DURING THE SEARCH AND ASSES SED IN HER HANDS BY THE WEALTH TAX OFFICER. THE LD. CIT (A) HAS NOTED FURTH ER THAT WHILE ASSESSING THE SAME JEWELLERY AS AN UNEXPLAINED INVESTMENT U/S 69 OF THE ACT IN THE ITA NO. 760/DEL/2011 & C.O. NO. 53/DEL/ 2011 8 HANDS OF THE ASSESSEE, THE AO HAS NOT BEEN ABLE TO MAKE OUT A VALID CASE AS TO HOW THE SAME JEWELLERY WHICH HAS BEEN VALUED IN THE WIFES NAME AND ASSESSED IN HER HANDS BY THE DEPARTMENT IS NOW BEIN G HELD TO BE UNEXPLAINED INVESTMENT IN THE HANDS OF THE HUSBAND/ ASSESSEE. THE LD. CIT (A) HAS ACCORDINGLY TREATED THE JEWELLERY WORTH RS. 17,85,050/- AS EXPLAINED. WE FIND THE FIRST APPELLATE ORDER IN THIS REGARD AS REASONED ONE, HENCE NO INTERFERENCE IS REQUIRED THERETO. THE SAME IS UPHEL D. 13. AS REGARD THE JEWELLERY WORTH RS.13,86,940/- CLAIME D TO HAVE BEEN INHERITED FROM THE MOTHER AND FOUND IN THE BANK LOC KER, THE LD. CIT (A) HAS TREATED THE SAME AS EXPLAINED ON THE BASIS THAT AO WAS NOT JUSTIFIED IN QUESTIONING THE SOURCE OF THE SOURCE. UNDISPUTEDLY GENUINENESS OF THE WILL EXECUTED BY THE MOTHER OF THE ASSESSEE WHO EXPIRED IN THE YEAR 1988 HAS NOT BEEN DOUBTED BY THE AO. THUS WE FULLY CONCUR WITH T HE FINDING OF THE LD. CIT (A) THAT THE OBJECTION REGARDING SOURCE OF ACQU ISITION IN THE HANDS OF THE MOTHER CANNOT BECOME GROUND FOR ADDITION OF THE SAM E IN THE HANDS OF THE ASSESSEE. IN THE WORST CASE THE MATTER COULD HAVE B EEN REFERRED TO THE AO OF THE LATE MOTHER WHO WOULD HAVE THE VALID JURISDICTI ON TO EXAMINE THE SOURCE OF ACQUISITION IN HER HANDS. UNDER THESE FACTS WE A RE OF THE VIEW THAT THE LD. CIT (A) WAS JUSTIFIED IN DELETING THE ADDITION OF R S.13,86,940/- WHILE ACCEPTING THE EXPLANATION OF THE ASSESSEE IN THIS R EGARD. THE FIRST APPELLATE ITA NO. 760/DEL/2011 & C.O. NO. 53/DEL/ 2011 9 ORDER ON THE ISSUE IS THUS UPHELD. IN RESULT GROUND NO. 2 (DEPARTMENT) IS REJECTED. GROUND NO. 3 (DEPARTMENT) & OBJECTION (C.O.-ASSESSE E) 14. DURING THE COURSE OF SEARCH CASH OF RS.14,57,200/- WAS FOUND. THE EXPLANATION OF THE ASSESSEE REGARDING THE SOURCE OF THE SAID AMOUNT REMAINED AS UNDER: GIVEN TO ME BY MY BROTHER MR. S.C. CHAWLA, DIRECTOR OF M/S R.H. AGRO OVERSEAS PVT. LTD FOR BOOKING OF A PROPERTY (AS PER CONFIRMATION ENCLOSED) RS.10,00,000/- RECEIVED FROM CONSUMER FORUM ON BEHALF OF MRS. SUCHITA PURI AND OTHERS IN THE CASE FILED AGAINST M/S PUSHPA BUILDERS RS.73,000/- SAVINGS LYING WITH ME OVER A PERIOD OF 44 YEARS OF MY ACTIVE PRACTICE AS AN ADVOCATE AND OUT OF AGRICULTURAL INCOME AND OTHER INCOME OF FAMILY MEMBERS. RS.3,84,200/- ITA NO. 760/DEL/2011 & C.O. NO. 53/DEL/ 2011 10 TOTAL RS.14,57,200/- 15. THE AO DID NOT AGREE WITH THE ABOVE EXPLANATION OF THE ASSESSEE ON THE BASIS THAT IT IS NOT SUPPORTED BY EVIDENCE. THE AO HOWEVER, ESTIMATED RS.1,00,000/- EARNED FROM THE PROFESSIONAL INCOME A ND THUS RESTRICTED THE UNEXPLAINED INCOME AT RS.13,57,200/- OUT OF THE CAS H FOUND OF RS.14,57,200/- DURING THE SEARCH. AFTER DETAILED DI SCUSSION THE LD. CIT (A) AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE AN D REMAND REPORT OF THE AO HAS ACCEPTED THE EXPLANATION OF THE ASSESSEE REG ARDING THE SOURCE OF RS.10,73,000/- (RS.13,57,200/- (- ) RS.2,84,200/-) AS EXPLAINED. 16. OPPOSING THE RELIEF GIVEN BY THE LD. CIT (A) AT RS. 10,73,000/-, THE LD. DR PLACED RELIANCE ON THE ASSESSMENT ORDER. HE SUBMITTED THAT THE LD. CIT (A) HAS GIVEN RELIEF OF THE ABOVE AMOUNT ONLY O N THE BASIS OF SELF SERVING STATEMENT OF THE ASSESSEE. NO EVIDENCE WAS FURNISHED IN SUPPORT OF THE EXPLANATION OF THE ASSESSEE. HE SUBMITTED FURTH ER THAT STATEMENT OF THE ASSESSEE RECORDED DURING THE COURSE OF SEARCH IS AL SO NOT RELIABLE SINCE THERE WAS VARIATION IN THE SAID STATEMENTS. HE PLACED REL IANCE ON THE FOLLOWING DECISIONS: 1. BHARTI TELECOM FINANCE LTD. VS. ACIT 296 ITR 249 ( DEL.) 2. RAMJIDAS JAINI & CO. & KUPPUSWAMI VS. CIT 84 ITR 28 7 (BOM) ITA NO. 760/DEL/2011 & C.O. NO. 53/DEL/ 2011 11 17. THE LD. AR TRIED TO JUSTIFY THE RELIEF GRANTED BY T HE LD. CIT (A). HE SUBMITTED FURTHER THAT THE ASSESSEE HAD EXPLAINED T HE SOURCE OF THE CASH SEIZED AND KEEPING IN VIEW THE LONG STANDING PRACTI CE OF 44 YEARS AS AN ADVOCATE BY THE ASSESSEE AND HIS AGRICULTURAL INCOM E, OTHER INCOME OF FAMILY MEMBERS, THE LD. CIT (A) SHOULD HAVE DELETED THE ADDITION OF THE ENTIRE AMOUNT OF RS.13,57,200/-. HE SUBMITTED THAT THE STATEMENT OF THE ASSESSEE RECORDED DURING THE COURSE OF SEARCH IS A VALUABLE PIECE OF EVIDENCE. THERE IS CONSISTENCY IN THE STATEMENTS OF THE ASSESSEE EXPLAINING THE SOURCE OF THE CASH, HENCE IT HAS BEEN RIGHTLY R ELIED UPON BY THE LD. CIT (A). THE LD. AR SUBMITTED THAT RS.10,00,000/- WAS G IVEN BY SH. S.C. CHAWLA WHO IS BROTHER OF THE ASSESSEE AND DIRECTOR OF R.H. AGRO OVERSEAS, (P) LTD. FOR BOOKING A FLAT FOR R.H. AGRO. HE SUBMI TTED THAT DURING THE COURSE OF SEARCH IN HIS STATEMENT RECORDED THE ASSE SSEE HAD STATED THAT RS.10,00,000/- WAS GIVEN BY HIS BROTHER SH. S.C. CH AWLA, ON 26.7.2007 FOR PURCHASE OF OFFICE OF THE COMPANY. IN HIS STATEMENT S SH. B.L. KHURANA OF R.H. AGRO OVERSEAS (P) LTD. RECORDED ON 18.11.2009 HAS AFFIRMED THE SAME. HE SUBMITTED THAT SH. KHURANA HAD APPEARED IN RESPO NSE TO SUMMONS ISSUED BY THE AO TO THE COMPANY ON 13.11.2009. HE REFERRED STATEMENTS OF SH. KHURANA MADE AVAILABLE AT PAGE NO. 26 OF THE PAPER BOOK. AT PAGE NO. 25 OF THE PAPER BOOK HAS BEEN FURNISHED THE COPY OF SUMMO NS ISSUED BY AO TO THE ITA NO. 760/DEL/2011 & C.O. NO. 53/DEL/ 2011 12 COMPANY ON 13.11.2009 AND AT PAGE NO. 27 OF THE PAP ER BOOK HAS BEEN PLACED CERTIFICATE DATED 16.3.2007 ISSUED BY THE CO MPANY. THE LD. AR ALSO REFERRED PAGE NO. 28 TO 47 OF THE PAPER BOOK WHICH ARE COPIES OF CASH VOUCHER DATED 26.2.2007 OF THE COMPANY, LEDGER ACCO UNT OF SH. S.C. CHAWLA IN THE BOOKS OF THE COMPANY, CASH BOOK OF THE COMPA NY AS ON 26.2.2007, PAN CARD OF THE COMPANY AND AUDITED BALANCE SHEET O F THE COMPANY I.E. R.H. OVERSEAS (P) LTD. AS ON 31.3.2007. THE LD. AR SUBMITTED THAT ASSESSEE IS A PRACTICING ADVOCATE AND ON THE DATE OF SEARCH HE WAS IN ACTIVE PRACTICES FOR THE LAST 44 YEARS. HE WAS HAVING AGRICULTURAL L AND AND AGRICULTURAL INCOME AS WELL. THE ASSESSEE HAD RECEIVED RS. 73,00 0/- ON BEHALF OF HIS CLIENT MRS. SUCHITA PURI IN A CASE AGAINST USA BUIL DERS LTD. BEFORE NATIONAL CONSUMER COMMISSION, A COPY OF ORDER DATED 6 TH MARCH, 2006 OF THE NATIONAL CONSUMER DISPUTE REDRESSAL COMMISSION BETW EEN M/S PUSPA BUILDERS LTD. AND MRS. SUCHITA PURI HAS BEEN PLACED AT PAGE NOS. 48 AND 49 OF THE PAPER BOOK. HE SUBMITTED THAT THE CASH OF RS .73,000/- WAS FOUND IN AN ENVELOP IN THE NAME OF MRS. SUCHITA PURI. THESE FAC TS WERE ALSO RECORDED IN THE STATEMENTS DURING SEARCH. IN THIS REGARD HE REF ERRED PAGE NO. 4 OF THE ASSESSMENT ORDER. 18. REGARDING THE ADDITION OF CASH OF RS.2,84,200/- UPH ELD BY THE LD. CIT (A), THE LD. AR EXPLAINED THAT ASSESSEE WAS IN ACTI VE PRACTICE FOR 44 YEARS AS ITA NO. 760/DEL/2011 & C.O. NO. 53/DEL/ 2011 13 AN ADVOCATE AND ON THE DATE OF SEARCH, HE WAS ALSO HAVING AGRICULTURAL LAND AND AGRICULTURAL INCOME, HENCE THERE WAS NO REASON TO DISBELIEVE THE EXPLANATION OF THE ASSESSEE REGARDING SAVING OF RS. 2,84,200/- OF THE ASSESSEE AND HIS FAMILY MEMBERS. 19. CONSIDERING THE ABOVE SUBMISSION AND HAVING GONE TH ROUGH THE ORDERS OF THE AUTHORITIES BELOW, WE FIND THAT THERE WAS SU FFICIENT EVIDENCE, AS DISCUSSED ABOVE, TO SUPPORT THE EXPLANATION OF THE ASSESSEE IS REGARDING RECEIPT OF RS.10,00,000/- STATED TO BE GIVEN TO THE ASSESSEE BY HIS BROTHER SH. S.C. CHAWLA FOR THE PURCHASE OF AN OFFICE OF THEIR COMPANY. THE LD. CIT (A), IN OUR VIEW HAS THUS RIGHTLY ACCEPTED THIS AMO UNT AS EXPLAINED. REGARDING THE EXPLANATION OF RS.73,000/- CLAIMED TO HAVE BEEN RECEIVED FROM NATIONAL CONSUMER FORUM ON BEHALF OF MRS. SUCH ITA PURI IN A CASE FILED AGAINST M/S PUSPA BUILDERS, WE FIND FROM THE MEMO OF THE ORDER IN THE REVISION PETITION FILED BEFORE THE NATIONAL CONSUME R DISPUTE REDRESSAL COMMISSION, NEW DELHI MADE AVAILABLE AT PAGE NO. 48 & 49 OF THE PAPER BOOK THAT NAME OF THE ASSESSEE AS AN ADVOCATE IS AP PEARING FOR THE RESPONDENT. THESE CIRCUMSTANTIAL FACTS SUPPORT THE EXPLANATION OF THE ASSESSEE ALSO IN VIEW THAT DURING THE COURSE OF SEA RCH THE ASSESSEE HAD STATED THAT APPROXIMATELY RS.75,000/- WERE RECEIVED IN ACC OUNT OF MRS. SUCHITA PURI REGARDING CIVIL MATTER. HIS SUBMISSION WAS THA T ON DISPOSAL OF THE ITA NO. 760/DEL/2011 & C.O. NO. 53/DEL/ 2011 14 MATTER BEFORE THE CONSUMER FORUM RS.73,000/- WERE A WARDED WHICH WAS RECEIVED BY THE ASSESSEE IN THE CAPACITY OF CUSTODI AN / TRUSTEE TO BE DELIVERED TO MRS. SUCHITA PURI. IT WAS ALSO SUBMITTED THAT TH E CASH WAS LYING IN A FOLDER WHICH WAS OF SUCHITA PURI IN CONSUMER FORUM MATTER AND THIS CASH WAS LYING THEREIN TO BE DELIVERED TO HER. UNDER THIS BA CKGROUND THE LD. CIT (A) IN OUR VIEW HAS RIGHTLY TREATED THE AMOUNT OF RS.73 ,000/- AS EXPLAINED. 20. SO FAR AS CASH OF RS.2,84,200/- IS CONCERNED, THE E XPLANATION OF THE ASSESSEE REMAINED THAT IT WAS SAVING OF THE ASSESSE E OVER A PERIOD OF 44 YEARS OF HIS ACTIVE PRACTICE AS AN ADVOCATE AND OUT OF AGRICULTURAL INCOME AND OTHER INCOME OF FAMILY MEMBERS. SUBMISSION OF T HE ASSESSEE REMAINED THAT HE OWNS APPROXIMATELY 9 ACRES OF CULTIVABLE LA ND IN VILLAGE UDAIKEMARI FROM WHICH HE GETS SUBSTANTIAL INCOME FROM THE AGRI CULTURAL OPERATIONS VARYING FROM RS.2,50,000/- TO 3,50,000/- FROM YEAR TO YEAR DEPENDING UPON THE TYPE OF CROPS AND SALE OF THE AGRICULTURAL PROD UCE. THIS EXPLANATION OF THE ASSESSEE WAS AGAINST RS.3,84,200/- OUT OF WHICH THE AO ACCEPTED THE ESTIMATED INCOME OF THE ASSESSEE FROM PRACTICE AND AGRICULTURAL OPERATIONS AT RS.1,00,000/- AS EXPLAINED AND REMAINING AMOUNT OF RS.2,84,200/- HAS BEEN ADDED BY HIM WHICH HAS ALSO BEEN AFFIRMED BY THE LD . CIT (A). LOOKING INTO THE PERIOD OF ACTIVE PRACTICE AS A LAWYER FOR THE LAST 44 YEARS AS ON THE DATE OF SEARCH AND OTHER INCOME OF FAMILY MEMBERS F ROM AGRICULTURE ETC. WE ITA NO. 760/DEL/2011 & C.O. NO. 53/DEL/ 2011 15 ARE OF THE VIEW THAT ESTIMATION MADE BY THE AO AND LD. CIT (A) IS ON VERY LOWER SIDE. WE ARE OF THE VIEW THAT IT WOULD BE JUS T AND PROPER TO ESTIMATE RS.3,00,000/- ON ACCOUNT OF THE SAID PROFESSIONAL I NCOME AND OTHER INCOME. WE ARE THUS DIRECT THE AO TO RESTRICT THE ADDITION AT RS.84,200/- IN THIS REGARD AFTER EXCLUDING THE ESTIMATED INCOME AT RS.2 ,00,000/- OUT OF RS.3,84,200/- AS EXPLAINED. THE GROUND NO. 3 (DEPAR TMENT) OF THE APPEAL PREFERRED BY THE REVENUE IS REJECTED AND THE OBJECT ION RAISED IN THE CROSS- OBJECTION FILED BY THE ASSESSEE IS PARTLY ALLOWED. 21. CONSEQUENTLY APPEAL PREFERRED BY THE REVENUE IS DIS MISSED AND THE CROSS-OBJECTION FILED BY THE ASSESSEE IS PARTLY ALL OWED. 22. ORDER PRONOUNCED IN THE OPEN COURT ON THE DAY OF 21 /09/2012. SD/- SD/- G.D.AGRAWAL ) (I.C.SUDH IR) VICE-PRESIDENT JUDICIAL MEMBER DATED 21/09/2012 *AK VERMA* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR