SYED AHMED ABBAS NAQVI, MUMBAI V. DCIT CEN CIR 2, MUMBAI

ITA 7668/MUM/2010

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4085 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 07-07-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 08-11-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: AND ARISING OUT OF SEPARATE
• Keywords: Search and seizure; Document seized; Deemed to accrue or arise in india; Additional evidence; Onus to prove; Documents seized
• Section: 153A; 69; 27; 28; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI . , , BEFORE SHRI D. MANMOHAN, VP AND SHRI SANJAY ARORA, AM SR. NO. ITA NO. APPELLANT RESPONDENT DT. OF HEARING A.R.S NAME D.R.S NAME A.Y. 1 2 - 3 7668/M/10 SYED AHMED ABBAS NAQVI 705, SEA CREAST NO. 2, J. P. ROAD, SEVEN BUNGLOWS, ANDHERI (W), MUMBAI - 400 061 DY. CIT, CENTRAL CIRCLE - 2, MUMBAI 17 .0 2 . 1 6 NONE SHRI A. K. SRIVASTAVA & SHRI GIRISH DAVE 2007 - 08 6104/M/10 & 7259/M/10 DY. CIT, CENTRAL CIRCLE - 2, MUMBAI SYED AHMED ABBAS NAQVI - DO - - DO - - DO - 2006 - 07 & 07 - 08 4 6129/M/10 SYED AHMED ABBAS NAQVI DY. CIT 1 7 .0 2 .1 6 SHRI RAJIV KHANDELWAL SHRI A. K. SRIVASTAVA & SHRI GIRISH DAVE 2006 - 07 / O R D E R PER SANJAY ARORA, A. M.: TH ESE ARE CROSS A PPEAL S, I.E., BY THE ASSESSEE AND THE REVENUE, ARISING OUT OF THE SEPARATE ORDER S BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 36 , MUMBAI (CIT(A) FOR SHORT) DATED 26.05.2010 AND 31.08.2010, PARTLY ALLOWING THE A SSESSEES APPEAL S FOR THE ASSESSMENT YEAR S (A.Y S .) 2006 - 07 AND 2007 - 08 RESPECTIVELY, IMPUGNING THE ASSESSMENTS U/S.143(3) R/W SECTION 153A OF THE INCOME TAX AC T, 1961 (THE ACT HEREINAFTER) FOR THE RELEVANT YEARS . THE APPEALS RAISING COMMON ISSUES , WERE HEARD TOGETHER , AND ARE ACCORDINGLY BEING DISP OSED OF BY A COMMON, CONSOLIDATED ORDER. A.Y. 2006 - 07 (ITA NO. 6129/M/10 ASSESSEES APPEAL & ITA NO.6104/M/10 - REVENUES APPEAL) ASSESSEE S APPEAL 2. GROUND NO. 1 RELATES TO AN ADDITION IN THE SUM OF RS. 3 ,44,061/ - , MADE WITH REFERENCE TO PGS. 52 AND 53 OF ANNEXURE A1 TO THE PANCHANAMA DATED 06.01.2007 , CORRESPONDING TO PGS. 112 AND 113 OF THE ASSESSEES PAPER - BOOK (APB). THE ISSUE IS A CONTINUING ONE, AND STANDS DISCUSSED AT LENGTH BY TH E T RIBUNAL VIDE I T S ORDER FOR THE 2 ITA NO S . 7668/M/10, 6104/M/10 & 7259/M/10, 6129/M/10 (A.Y S . 2006 - 07 & 2007 - 08) SYED AHMED ABBAS NAQVI TWO IMMEDIATELY PRECEDING YEARS (REFER PARAS 2 TO 5.4 OF THE ORDER BY THE TRIBUNAL DATED 09.10.2015 ( IN ITA NO S . 2807 & 2808/MUM/2010) ) . THE FACTS AND CIRCUMSTANCES OF THE CASE ; THE MATERIAL ON RECORD, ON THE BASIS OF WHIC H THE ADDITION STANDS MADE AND SUSTAINED , AS WELL AS THE RESPECTIVE CASES OF THE PARTIES, ARE THE SAME. WE, ACCORDINGLY, FOR THE SAME REASONS AS INFORM T HE SAID DECISION, DECIDE LIKEWISE , FOR WHICH REFERENCE MAY BE MADE TO THE AFORE - REFERRED PARAS OF THE T RIBUNALS ORDER DATED 09.10.2015 (SUPRA) IN THE ASSESSEES OWN CASE. THERE IS FURTHER NO REASON TO ADD THE TOTAL OF THE ACCUMULATED FIGURE OF PROFIT SEPARATELY. 3. VIDE G ROUND # 2, THE ASSESSEE IMPUGNS THE ADDITION FOR RS.2,44,000/ - , MADE WITH REFERENCE T O PG. 54 OF ANNEXURE A1, CORRESPONDING TO APB PG. 115. THE SAME HAS ALREADY BEEN FOUND TO RELATE TO AN ADDITION FOR RS.3.60 LACS, WHICH IS THE SUBJECT MATTER OF G ROUND # 3 OF THE ASSESSEES APPEAL FOR A.Y. 2005 - 06 (IN ITA NO. 2808/MUM/2010). THAT IS, THE T WO DOCUMENTS (APB PGS. 115 AND 135) HAV E BEEN FOUND BY US AS BEING IN RELATION TO THE SAME SET OF PA YMENTS AND RECEIPTS (REFER PARA S 9 - 11 O F THE CAPTIONED ORDER). AS SUCH, IN PRINCIPLE, THE SAME AMOUNT WOULD STAND TO BE SUSTAINED, I.E., AT RS.1,15,000/ - IN AGGREGATE . WITH REGARD TO THE YEAR OF ASSESSMENT, WE HAVE ALREADY PRESCRIBED A MANNER OF ALLOCATING THE NET AMOUNT OF ADDITION SUSTAINED, RS.1.15 LACS, OVER THE TWO ASSESSMENT YEARS, BEING A.Y S . 2005 - 06 & 2006 - 07, DURING THE RELEVANT PREVIOUS YEARS OF WHI CH THE TRANSACTIONS HAVE BEEN FOUND TO HAVE TAKEN PLACE. FURTHER, W ITHOUT PREJUDICE TO THE FOREGOING, IF FOR ANY REASON, THE ADDITION FOR THE PRECEDING YEAR IS CANCELLED OR REDUCED, THE SAME , TO THE EXTENT SO , WOULD STAND TO BE SUSTAINED FOR THE CURR ENT YE AR. WE STATE SO AS THE NET AMOUNT OF RS.1.15 LACS IS CLEARLY STATED AS RECOVERABLE ON 02.6.2005 BY THE ASSESSEE FROM HIS C LIENT ON ACCOUNT OF PAYMENTS MADE BY HIM TO THE CONTRACTORS, SOURCE OF WHICH REMAINS UNEXPLAINED. WE DECIDE ACCORDINGLY, PARTLY ALLOWI NG THE APPEAL. 3 ITA NO S . 7668/M/10, 6104/M/10 & 7259/M/10, 6129/M/10 (A.Y S . 2006 - 07 & 2007 - 08) SYED AHMED ABBAS NAQVI 4. GROUND S # 3 AND 4 RELATES TO ADDITION S FOR RS.8.83 LACS AND RS.10.85 LACS RESPECTIVELY ON THE BASIS OF PGS. 13 - 15 OF ANNEXURE A - 3 TO THE PANCHANAMA DATED 06.01.2007 (CORRESPONDING TO APB PGS. 140 - 1 42 ) . T HE NATURE OF THE ADDITION /S AS WE LL A S THE EXPLANATION IN RE SPECT THEREOF BEING SIMILAR, THE SAME WE RE ARGUED , AND ARE BEING TAKEN UP TOGETHER FOR THE PURPOSE OF ADJUDICATION. APB PGS. 140 - 142 IS A LISTING OF PAYMENT S IN ACCOUNT OF ONE , MAN I KJI. A MOUNTS AGGREGATING TO RS.24.18 LACS ARE TA BULATED THEREIN, ALSO NOTING ALONG WITH THE NAME / S OF THE RECIPIENT (AS ALSO TH E NATURE OF THE WORK UNDERTAKEN , FOR WHICH THE PAYMENT STANDS MADE) AND THE DATE OF PAYMENT . THE ASSESSEE EXPLAINS THE SAME AS REPRESENTING PAYMENT S TO DIFFERENT CONTRACTORS ON ACCOUNT OF INTERIOR WORK DONE QUA A PROPERTY BY THE NAME JAGDISH KUNJ AT WADALA, MUMBAI, FOR THE SAID CLIENT, MANIKJI ( I.E., MANIKLAL M. SHAH), ITS OWNER, AND WHICH STANDS DULY NOTED IN HIS BOOKS OF ACCOUNT. THE SAME WAS NOT FOUND ACCEPTABLE IN - A S - MUCH AS THE PAYMENTS WERE NOT FOUND REFLECTED IN THE ASSESSEES BOOKS OF ACCOUNT. ON EXAMINATION BY THE LD. CIT(A), IT WAS FOUND THAT THERE WA S A DIFFEREN CE IN THE DATES AS SPECIFIED IN THE SEIZED DOCUMENTS AND AT WHICH THEY WERE RECORDED IN THE BOOKS OF ACCOUNT. 5. BEFORE US, THE LD. A UTHORIZED REPRESENTATIVE (A R ) WOULD RELY ON THE BOOKS OF ACCOUNT, CLAIMING THAT ALL THE PAYMENTS ARE DULY REFLECTED IN THE ACCOUNTS AND , FURTHER , THAT THE DIFFERENCE IN THE DATES I S ONLY MARGINAL AND , FURTHER , IN MOST CASES DUE TO THE DIFFERENCE BETWEEN THE DATE OF CHEQUE /S AND THAT OF ITS ENCASHMENT. THE LD. D EPARTMENTAL REPRESENTATIVE (D R ) , ON THE OTHER HAND, WOULD SUBMIT THAT NO BOOKS OF ACCOUNT WERE FOUND DURING SEARCH, SO THAT THE IR SUBSEQUENT PRODUCTION IS ONLY AN AFTERTHOU GHT ; THE SAME BEING COMPILED ONLY FOR THE PURPOSE OF JUSTIFYING THE PAYMENTS MADE. T HERE WAS NO REFERENCE TO THE SAID BOOKS AT THE TIME OF SEARCH. THE SAME, C OULD, THEREFORE, NOT BE TAKEN INTO ACCOUNT. 6. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. 4 ITA NO S . 7668/M/10, 6104/M/10 & 7259/M/10, 6129/M/10 (A.Y S . 2006 - 07 & 2007 - 08) SYED AHMED ABBAS NAQVI MR. MANIKLAL SHAH (MANIKJI) , ON BEING QUESTIONED ON OATH U/S.131 ON 26.12.2008 BY THE ASSESSING OFFICER (A.O.) CONFIRMED TO THE ASSESSEE UNDERTAKING THE CIVIL CONSTRUCTION WORK FOR HIS JAGDISH KUNJ PROPERTY. WE ARE UNABLE TO SEE ANY CONTROVERSY IN THE INSTANT CASE, I.E., IN PRINCIP L E . THAT T HE PAYMENT S (AS LISTED AT APB PGS. 140 142) ARE ON ACCOUNT OF MANI KJI , A CLIENT , IS ADMITTED. THE SAME ARE IN RELATION TO A PROJECT UNDERTAKEN BY THE ASSESSEE, MADE TO DIFFERENT PERSONS EXECUTING DIFFERENT WORKS, VIZ. CIVIL WORK, PLUMBING, ELECTRIC WORK, WOOD WORK , ETC . THE ASSESSEE, AS IT APPEARS, IS WORKING AS A CONTRACTOR, ENGAGING SUB - CONTRACTORS FOR THE PURPOSE, BESIDE CHARGING THE C LIENT FOR HIS PROFESSIONAL CHARGES. ON THE OTHER HAND, IT MAY ALSO BE T HAT HE IS CHARGING HIS CLIENTS A LUMPSUM FIGURE , I.E., UNDERTAKING THE WORK ON T URNKEY BASIS. THE NATURE OF THE PAYMENTS MADE , AS WELL AS TH EIR FACT UM , WHICH IS PATENT, IS ACCEPTED. THE ONLY QUESTI O N IS WITH REGARD TO TH E SOURCE OF THESE PAYMENTS. EVEN IF NO BOOKS OF ACCOUNT WERE FOUND DURING SEARCH, ON WHICH AGAIN WE OBSERVE NO DISPUTE, THE ASSESSEE HAS TO BE ALLOWED AN OPPORTUNITY TO PRESENT H IS CASE IN ASSESSMENT PROCEEDINGS, AND WHICH HE DOES BY PRODUCING THE BOOKS OF ACCOUNT. THOUGH A STATEMENT U/S.132 (4), SURRENDERING AN INCOME OF RS.5 LACS, WAS MADE AT THE TIME OF SEARCH, THE SAME IS NOT ON RECORD, SO THAT IT CANNOT BE PRESUMED THAT THE ASSESSEE DENIED HAVING MAINTAINED BOOKS OF ACCOUNT DURING SEARCH. EVEN OTHERWISE, THERE IS NO REFERENCE TO THIS STAT EMENT BY EITHER PARTY, EITHER AT THE ASSESSMENT OR THE APPELLATE STAGES, INCLUDING BEFORE US. CONTINUING FURTHER, THE BOOKS OF ACCOUN T , RATHER , FORM THE BASIS OF THE ASSESSEES RETURN, DISCLOSING AN INCOME OF RS.7,40,198/ - FOR THE CURRENT YEAR, INCLUDING R S.5 LACS OFFERED DURING SEARCH. SURELY, THE RELIABILITY OF THESE BOOKS IS SUSPECT, BEING NEITHER FOUND DURING SEARCH N OR REFERRED TO THEREAT. IN ALL PROBABILITY, THEY WERE NOT IN EXISTENCE AT THAT TIME AND COMPILED ONLY LATER; THE ASSESSEE HAVING NOT FILED ANY RETURN OF INCOME FOR THE YEAR DESPITE THE DUE DATE THEREFOR HAVING LA PSED MUCH EARLIER (IN JULY, 2006 ). HOWEVER, WHEN THE ASSESSEE PRODUCES OR OTHERWISE RELIES ON HIS BOOKS OF ACCOUNT, ALL THAT HE THEREBY DOES IS TO 5 ITA NO S . 7668/M/10, 6104/M/10 & 7259/M/10, 6129/M/10 (A.Y S . 2006 - 07 & 2007 - 08) SYED AHMED ABBAS NAQVI STATE THAT THE TRANSACTIONS ARE ACC OUNTED. T HE SAME (BOOKS OF ACCOUNT), THUS, CONSTITUTE THE BASIS OR THE FULCRUM OF THE ASSESSEES EXPLANATION. ITS REJECTION OR ACCEPTANCE , AS THE CASE MAY BE, WHICH IS THE PREROGATIVE OF THE REVENUE, IN - AS - MUCH AS IT IS IT THAT IS TO BE SATISFIED THEREWITH , C OULD BE ON MERITS , AND FOR WHICH THE SAME WOULD NECESSARILY REQUIRE BEING EXAMINED. A PERFUNCTORY APPROACH IN THE MATTER, THOUGH, AS ADOPTED BY THE REVENUE , WOULD NOT SUFFICE , PARTICULARLY AS THE PAYMENTS OR MOST OF THEM, ARE CLAIMED TO BE MADE BY CHE QUES. REFERENCE IN THIS CONTEXT MAY BE MADE TO THE DECISION IN PRABHAVATI S. SHAH VS. ITO [ 1998 ] 231 ITR 1 (BOM). AT THE SAME TIME, IT CANNOT BE SAID OR ACCEPTED THAT MERELY FOR THE REASON THAT THE PAYMENTS STAND REFLECTED , EVEN WHERE SO, IN THE BOOKS OF ACCOUNT OF THE ASSESSEE, THEIR SOURCE IS TO BE ACCEPTED AS EXPLAINED . THE ONUS ON THE ASSESSEE IS TO PROVE THE SAME, SO THAT THE SAME WOULD STAND TO BE ASCERTAINED ONLY ON EXAMINATION OF THE SAID BOOKS OF ACCOUNT , PRODUCED IN SUBSTANTIATION OF THE EXPLANAT ION OF THE SAME BEING ACCOUNTED AND , THUS , PRESUMABLY EXPLAINED. THE SOURCE (OF THE IMPUGNED PAYMENTS) MAY WELL BE IN THE FORM OF A CREDIT /S FROM ANOTHER OR A CASH DEPOSIT (SAY) IN THE B ANK ACCOUNT, REQUIRING FURTHER EXAMINATION AND INVESTIGATION. THE BANK ACCOUNT/S ON WHICH THE CHEQUES ARE DRAWN MAY ITSELF BE NOT DISCLOSED PER THE ASSESSEES RETURN FOR THE PRECEDING YEARS. THE MATTER , AS IT TRANSPIRES , AND AS WE ARE AT PAINS TO EMPHASIZE , IS PURELY FACTUAL , TO BE DECIDED BY ISSUING FINDINGS OF FACT BY EXAM INING THE MATERIAL ON RECORD, I.E., BESIDES THE ASSESSEES EXPLANATION IN ITS RESPECT. AN EXPLANATION MAY LEAD TO A QUERY, REQUIRING ITS SUBSTANTIATION WITH REFERENCE TO MATERIAL , AND SO ON. THE DIFFERENCE IN DATES COULD AT BEST BE SYMP T O MA TIC, AND B Y ITS ELF NOT CONCLUSIVE OR DETERMINATIVE OF THE MATTER. IN FACT, AS WE OBSERVE, WHILE THE A.O. HAS ISSUED A SPECIFIC FINDING OF THE PAYMENTS BEING NOT RECORDED IN THE BOOKS OF ACCOUNT, THE LD. CIT(A) STATES OF THERE BEING A DIFFERENCE IN DATES. THE MATTER, IN OUR VIEW, IS FACTUALLY INDETERMINATE. UNDER THE CIRCUMSTANCES, WE ONLY CONSIDER IT FIT AND PROPER THAT THE ISSUE IS RESTORED BACK TO THE FILE OF THE FIRST 6 ITA NO S . 7668/M/10, 6104/M/10 & 7259/M/10, 6129/M/10 (A.Y S . 2006 - 07 & 2007 - 08) SYED AHMED ABBAS NAQVI APPELLATE AUTHORITY, WHO SHALL CAUSE TO DETERMINE THE SAME, ISSUING DEFINITE FINDINGS OF FACT IN THE MATTER, I.E., WHETHER THE SOURCE /S OF THE IMPUGNED PAYMENTS STAND S SATISFACTORILY EXPLAINED BY THE ASSESSEE WITH REFERENCE TO ITS BOOKS OF ACCOUNT, OR EVEN OTHERWISE , OR NOT SO . ADMITTING OF EVIDENCE SHALL, EXCEPT WHERE IT IS ONLY IN SUBSTANTIATION OF AN E XPLANATION ALREADY MADE , WOULD REQUIRE OB SERVING THE DUE PROCESS OF LAW, I.E., QUA ADMISSION OF ADDITIONAL EVIDENCE , TAKING INTO ACCOUNT THE FACT THAT THE SAME HAS NOT BEEN ADDUCED UPTO THIS STAGE. FURTHER, AS THE SAME MAY REQUIRE EXAMINATION OF BOOKS OF A CCOUNT, THE LD. CIT(A) SHALL, AT HIS OPTION, REQUIRE THE ASSESSING AUTHORITY TO UNDERTAKE AN EXERCISE, ISSUING SPECIFIC DIRECTIONS FOR THE PURPOSE. WE DECIDE ACCORDINGLY. 7. GROUND NO. 5 OF THE A PPEAL RELATES TO AN ADDITION FOR RS.24.60 LACS REFERABLE TO PG. 1 7 OF ANNEXURE A - 3 (TO PANCHANAMA DATED 06.01.2007), CORRESPONDING TO APB PGS. 144. THE SAME READS AS UNDER (ALSO REFER PARA 9 /PG S . 5 - 6 O F THE ASSESSMENT ORDER) : BHARATS A/C RS.5 LACS FROM AAPA RS.3.8 LACS FROM M UNNA BHAI RS.3.0 LACS FROM MUNNA RS. 1.70 LACS FROM NIRMAL D (NADIM) RS.2 LACS FROM MUNNA RS.0.80 FROM MUNNA RS.0.35 FROM MUNNA RECEIVED RS.15 LACS ON 25.03.2006 RS.15,000 (NARI BHAI) THE ASSESSEE EXPLAINED THE DOCUMENT , A PAGE OF A DIARY, AS PERTAINING TO PAYMENTS BY RDC WORLD WIDE (RDC) TO ONE, MR. BHARAT , WORKING AS A CONTRACTOR FOR IT, CITING THE DIARY BEING IN THE NAME OF RDC IN SUPPORT. THE SAME DID NOT FIND FAVOUR WITH THE REVENUE FOR THE SAME REASONS AS FOR OTHER SIMILAR ADDITIONS, VIZ. G ROUNDS 3 AND 4 OF THIS APPEAL. THERE WAS NOT HING TO LINK THE TRANSACTIONS STATED THEREIN WITH 7 ITA NO S . 7668/M/10, 6104/M/10 & 7259/M/10, 6129/M/10 (A.Y S . 2006 - 07 & 2007 - 08) SYED AHMED ABBAS NAQVI RDC, EVEN AS THE PRESUMPTION IN LAW WOULD BE OF THE SAME BELONGING TO THE ASSESSEE (S.292C) . IN FACT, THE ASSESSEE HAD HIMSELF ADMITTED TO TRANSACTIONS, NOTED SIMILAR LY , UNDER THE ACCOUNT HEA D DIMPLE (PG. 54/ANNEXURE A - 1; PG. 8/ANNEXURE A - 3, AT PB PGS. 115 AND 135 AND PG S . 13 - 15 OF ANNEXURE A - 3/PB PGS. 140 - 142 ) , ALL THE PAGES OF ANNEXURE A - 3 BEING THE DIFFERENT PAGES OF THE SAME DIARY . THE ADD ITIONS BEING MADE AND SUSTAINED THUS, THE ASSESSEE IS IN SECON D APPEAL BEFORE US. 8. BEFORE US, THE CASE OF THE ASSESSEE AS WELL AS THE REVENUE CONTINUED TO BE THE SAME, I.E., AS BEFORE THE AUTHORITIES BELOW. 9. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. IF MUNNA AND MUNNA BHAI REPRESENT THE ASSESSEES NAME , AS INDEED IS THE ADMITTED POSITION BETWEEN THE ASSESSEE AND THE REVENUE, WHICH IS ALSO IN AGREEMENT WITH THE VARIOUS ENTRIES MADE IN THE DOCUMENTS FOUND AND SEIZED DURING SEARCH, I.E., IS BORNE OUT OF RECORD, THEN , CLEARLY, THE ACCOUNT UNDER REFERENCE REPRESENT S AN ACCOUNT AS APPEARING IN THE BOOKS OF A THIRD PERSON, AND NOT THE ASSESSEE. IT COULD PERHAPS BE RDC, FOR WHOM THE ASSESSEE STATES TO BE WORKING AS A INTERIOR DESIGNER , ON WHOSE BEHALF THE ACCOUNT MAY BE MAINTAINED IN HIS DIARY . THE A.O. HAS IN FACT NOT ADDED THE ENTIRE SUM LISTED THEREIN, BUT ONLY THE SUMS NOTED (ON THE LEAF BEARING THE DATE 22.01.2005 ) AS FROM MUNNA OR MUNNA BHAI, I.E., RS.9.60 LACS, BESIDES ANOTHER RS.15 LACS NOTED AS RECEIVED ON 25.03.2006. THE NARRATION FR OM MUNNA/MUNNA BHAI AND RECEIVED ON 25.03.2006 , ARE INCONSISTENT W H EN BOTH ARE CONSIDERED AS RECEIVED FROM THE ASSESSEE AND ADDED TOGETHER , AS BY THE REVENUE . THE ENTRY OF RS. 15 LACS, WHICH , BY THE MANNER OF ITS WRITING , REPRESENTS A SEPARATE CATEGORY, CAN ONLY BE INTERPRETED AS AN AMOUNT RECEIVED BY RDC ( OR ANY OTHER PERSON ON WHOSE BEHALF THE ACCOUNT IS BEING MAINTAINED) FROM BHARAT , I.E., THE PERSON WHOSE ACCOUNT STANDS MAINTAINED . IT IS WORTHWHILE TO NOTE , BEING O F T - STATED (BY THE ASSESSEE), THAT BH ARAT IS A CONTRACTOR FOR RDC , AND THAT THEREFORE BHARAT MAY NOT BE A CLIENT , AS ARE OTHER PERSONS WHOSE 8 ITA NO S . 7668/M/10, 6104/M/10 & 7259/M/10, 6129/M/10 (A.Y S . 2006 - 07 & 2007 - 08) SYED AHMED ABBAS NAQVI ACCOUNTS HAVE BEEN FOUND TO BE MAINTAINED BY THE ASSESSEE, WHO IS ALSO UNDERTAKING THE CONSTRUCTION BUSINESS IN HIS PROPRIETARY FIRM , M/S. ANNYA CONSTRU CTIONS (REFER PARA S 10 - 11 OF THE TRIBUNALS COMBINED ORDER FOR A. Y S . 2004 - 05 AND 2005 - 06 SUPRA ). IN FACT, THE ASSESSEES EMPLOYMENT WAS ADMITTEDLY UPTO N OVEMBER, 2005, WHILE THE PAYMENTS COULD BE SUBSEQUENT THERETO, THE LAST ENTRY BEING DATED 25.03.2006, S O THAT THE OTHER ENTRIES BEFORE IT WOULD BE PRIOR THERETO IN TIME. THE ASSESSEE, APART FROM STATING THAT THE DIARY BELONGS TO RDC, H AS THROWN LITTLE LIGHT ON THE NATURE OF THE TRANSACTIONS, WHICH HE IS IN THE KNOW OF, AND SHOULD BE ABLE TO EXPLAIN. THE DIA RY BEING FOUND FROM THE ASSESSEES POS SESSION, APART FROM STATUTORY PRESUMPTION OF SECTION 292C, ADMITTEDLY BELONGS TO HIM, BE IN G DETAILS OF VARIOUS TRANSACTIONS ENTERED INTO BY HIM, WRITTEN IN HIS OWN HAND. THE TRANSACTION S UNDER REFERENCE WOULD BE ONLY K NOWN TO HIM. TWO, THE TRANSACTIONS STATED AS FROM MUNNA/MUNNA BHAI ARE AGAIN ONLY WITH REFERENCE TO HIM. THE PROVISIONS OF BOTH S. 106 AND 114 (ILL. (G)) OF THE EVIDENCE ACT WOULD BE APPLICABLE IN THE PRESENT CASE . FURTHER, THE TRANSACTIONS TOTAL TO RS.9 .95 LACS , AND NOT RS.9.60 LACS ; THE A.O. HAVING INADVERTENTLY NOT WRITTEN THE LAST ENTRY FOR RS.35,000/ - APP EARING AFTER RS.0.80 (LACS). IN FACT, THE LD. C OUNSEL, A DMITTED THERETO DURING HEARING, WITH RS.16,65,000/ - BEING FOUND WRITTEN BELOW THE ENTRY (R S.0.35) IN HIS HAND, B Y WAY OF TOTALING THE AMOUNTS RECORDED INCLUDING RS.35,000/ - . THESE AMOUNTS , PERTAINING TO THE ASSESSEE, IN THE SUM OF RS.9,95,000/ - , AND NOT EITHER RECORDED IN HIS BOOKS OF ACCOUNT OR OTHERWISE EXPLAINED BY HIM, ARE THUS LIABLE TO BE INCLUDED AS THE ASSESSEES INCOME. WE, CONFIRM THE ADDITION TO THIS EXTENT , ALSO DRAWING SUPPORT FROM KAPURCHAND SHRIMAL V. CIT [ 1981 ] 131 ITR 45 (SC) AND AHMEDABAD ELECTRICITY CO. L TD. VS. CIT [1993] 199 ITR 351 (BOM) (FB) , WHICH WE DO FOR THE OTHER ADDI TIONS SUSTAINED BY US AS WELL. WE MAY CLARIFY THAT WHEN WE STATE SO, WE ARE NOT ENHANCING THE ASSESSMENT, BUT ONLY STAT ING THE SUM LIABLE TO BE ADDED AT ITS CORRECT AMOUNT IN - AS - MUCH AS THE AMOUNT (RS.0.35) HA S BEEN CLEARLY AND IDENTICALLY STATED AS OTHE R ENTRIES PRIOR THERETO, THOUGH REMAIN ED TO BE TYPED IN THE 9 ITA NO S . 7668/M/10, 6104/M/10 & 7259/M/10, 6129/M/10 (A.Y S . 2006 - 07 & 2007 - 08) SYED AHMED ABBAS NAQVI ASSESSME NT ORDER (PARA 9), I.E., WHILE T RANSC RIBING THE DOCUMENT AND, THUS, O MITTED TO BE INCLUDED BY THE A.O. W E , IN DOING SO, MAKE NO DEPARTURE EITHER ON PRINCIPL E OR IN NATURE , BUT ONLY RECTIFY A PATENT AND OBVIOUS MISTAKE . THE INCREASE IN THE AMOUNT IS CONSEQUENTIAL, WHICH COULD EVEN HAVE , IN THE FACTS OF A GIVEN CASE , THE OPPOSITE E F FE CT, EVEN A S THE AMOUNT OF RS.9.95 LACS DOES NOT EXC EED THE AMOUNT ADDED AND IMPUGNED BY THE ASSESSEE, I.E., RS .24.60 LACS. WE DECIDE ACCORDINGLY , AND THE ASSESSEE GETS PART RELIEF. 10. IN THE RESULT, THE ASSESSEES APPEAL FOR A.Y. 2006 - 07 (ITA NO. 6129/M/2010) IS PARTLY ALLOWED. A.Y. 200 7 - 0 8 (ITA NO. 7668 /M/10 ASSESSEES APPEAL & ITA NO.7259/M/10 - REVENUES APPEAL) ASSESSEE S APPEAL 11. GROUND # 1 OF THE APPEAL IS GENERAL, WARRANTING NO SEPARATE ADJUDICATION. 12. GROUND # 2 CONCERNS AN ADDITION F OR RS.2,41,170/ - BY THE A SSESSING OFFICER (A .O. ) ON ACCOUNT OF ALLEGED UNDISCLOSED JEWELLERY , CONFIRMED BY THE L D. CIT(A) AT RS.1,37,500/ - . THE BRIEF AND UNDISPUTED FACTS OF THE CASE ARE THAT THE GOLD AND DIAMOND JEWELLERY , DETAILED AS UNDER, WAS FOUND FROM THE RESIDENCE OF THE ASSESSEE DURING SEARCH (REFER PARA 9/PGS. 2 - 3 OF THE ASSESSMENT ORDER) : ORNAMENTS NET W T. VALUE (RS.) GOLD 196.600 GMS 157320 DIAMOND 20.90 CTS. 462 500 TOTAL 619820 THE SAME WAS EXPLAINED AS HAVING BEEN RECEIVED FROM IN - LAWS AT THE TIME OF MARRIAGE, AS ALSO FROM FRIENDS AND RELATIVES ON DIFFERENT OCCASIONS. BEING UN - SUBSTANTIATED , THE SAME WAS NOT ACCEPTED, EVEN AS THE ASSESSEE WAS ALLOWED RELIEF FOR 10 ITA NO S . 7668/M/10, 6104/M/10 & 7259/M/10, 6129/M/10 (A.Y S . 2006 - 07 & 2007 - 08) SYED AHMED ABBAS NAQVI THE JEWELLERY DISCLOSED AS PER THE BOOKS OF ACCOUNT /RETURN (FOR A.Y. 2000 - 01) OF SELF AND WIFE, I.E., AT RS.2 5,2 6 0 / - AND RS.53,650/ - RESPECTIVELY, ADJUSTED IN VALUE FOR THE CURRENT RATES , A ND THE BALANCE BROUGHT TO TAX, AFTER ALLOWING FURTHER CREDIT FOR THE AMOUNT OF JEWELLERY SURRENDERED DURING SEARCH, I.E., RS.3.25 LACS. AGGRIEVED, THE ASSESSEE IS IN SECOND APPEAL. 13. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. THE TO TAL GOLD JEWELLERY WITH THE ASSESSEE AND HIS WIFE, I.E., AS DISCLOSED TO THE REVENUE, WHICH WOULD INCLUDE THAT RECEIVED BY THEM AT THE TIME OF MARRIAGE OR FROM FRIENDS AND RELATIVES FROM TIME TO TIME, WHEN ADJ USTED FOR THE INFLATION IN THE RAT E OF GOLD OVE R TIME, WORKS TO 205.200 GRAMS ( APPROX .), AS AGAINST AT 1 96.600 GRAMS FO UND DURING SEARCH (REFER PG. 5 OF THE IMPUGNED ORDER) . THE ENTIRE GOLD JEWELLERY IS THUS EXPLAINED. ADJUSTING THE AMOUNT SURRENDERED (RS.3.25 LACS ) AGAINST THE DIAMOND JEWELLERY FOUND (AT RS.4.625 LACS) LEAVES THE BALANCE OF RS.1,37,500/ - . THERE IS NO DISPUTE WITH REGARD TO THE VALUATION. THE SAME IS, ACCORDINGLY, CONFIRMED FOR ADDITION. THE BOARD INSTRUCTION NO. 1914 IS, WE MAY CLARIFY , IN RESPECT OF SEIZURE AND NOT ASSESSMENT , WHICH I S TO BE IN TERMS OF SECTION 69 /69A AND, TWO, IS IN RESPECT OF GOLD JEWELLERY ONLY. WE DECIDE ACCORDINGLY. 14. GROUND # 3 CONCERNS AN ADDITIO N FOR RS.52 LACS, RELATABLE TO PAGES 3 AND 3A OF ANNEXURE A1 (TO PANCHANAMA DATED 06.01.2007). THE SAME ARE REPROD UCED AS BELOW FOR READY AND BETTER COMPREHENSION OF THE CONTENTS THEREOF AS WELL AS OF THE NATURE OF THE TRANSACTIONS : PAGE NO. 3A OF ANNEXURE A1 (APB PG. 61) TO TAKEN FROM (TAPURIAHJI) TAPURIAHJIS A/C 1.32 CR FOR DIAMOND 3 LACS GIVEN TO KHAN (PUNE) 11 ITA NO S . 7668/M/10, 6104/M/10 & 7259/M/10, 6129/M/10 (A.Y S . 2006 - 07 & 2007 - 08) SYED AHMED ABBAS NAQVI 5 LACS GIVEN TO FAISAL (BY AAPA) 10,000/ - POUNDS, I.E., 9 LACS IN LONDON 10,000/ - POUNDS, I.E., 9 LACS IN LONDON TOTAL 1.58 CR GROSS AS ON 25.12.2005 RECEIVED FROM TAPURIAHJI 5 LACS IN CALCUTTA 2 LACS IN DELHI 3 LACS IN CALCUTTA 5 LACS IN CALCUTTA 10 LACS 15 LACS 14.02.2006 5 LACS 16.02.2006 8 LACS 13.04.2006 BALANCE 1.05 CR AS ON 16.04.2006. RS.3 LACS RECEIVED FROM MR. T. BALANCE 1.02 CR AS ON 23.05.2006 PAGE NO. 3 OF ANNEXURE A1 (APB PG. 62) FROM & TO MR. TAPURIAH RATE 90,000 USD = I.E. (44.6 0 RS.) = 40 LACS RECEIVED FROM MR. TH 24 LACS GIVEN TO MR. KHAN} ON 9 LACS GIVEN TO MR. KHAN} MR. TAPURIAHS 8 LACS GIVEN TO MR. KHAN} A/C TOTAL 41 LACS GIVEN TO MR. KHAN BY MUNNA 40 LACS RECEIVED IN USD 90,000 BALANCE 1 LACS AND 1.5 LAC TICKET 25000 USD, I.E., 11 LACS RECEIVED FROM MR. TAPURIAH LESS BALANCE - 2.5 LACS 11 = 8.5 LACS AS ON 16.04.2006 THE ASSESSEE , AS PER PG.3 OF ANNEXURE A - 1 (APB PG. 62) , RECEIVED USD 90000 (INR 4 0 LACS) AND USD 25000 (RS.11 LACS) FROM MR. KASHINATH TAPURIAH (KT) - THAT THE NAME MR. TAPURIAH REFERS TO MR. KASHINATH TAPURIAH AND MR. KHAN TO MR. HASAN ALI KHAN (HAK) BEING ADMITTED. THE ASSESSEE ON BEING QUESTION ED IN RESPECT 12 ITA NO S . 7668/M/10, 6104/M/10 & 7259/M/10, 6129/M/10 (A.Y S . 2006 - 07 & 2007 - 08) SYED AHMED ABBAS NAQVI OF THE SAID RECEIPT DENIED ANY SUCH MONEY HAVING BEEN RECEIVED FROM KT, MERELY STATING THAT THE SAID PAGE WAS WRITTEN AT THE (PUNE) RESIDENCE OF HAK AT THE INSTRUCTION OF KT, BEING THE PAYMENTS EXP EC T ED TO BE RECEIVED AND PAID . THE SAME WAS FOUND UNSATISFACTORY IN - AS - MUCH AS THE DOCUMENT CLEARLY STATE S OF THE STATED SUM S HAVING BEEN RECEIVED AND PAID . ACCORDINGLY, THE ENTIRE AMOUNT PAID TO HAK (RS.41 LACS), BEING IN EXCESS OF THAT RECEIVED (RS.40 LACS), AND THAT FURTHER RECEIVED FROM KT (RS.11 LACS) WAS ADDED AS THE ASSESSEES INCOME , AND CONFIRMED IN THE ABSENCE OF ANY IMPROVEMENT IN ITS CASE BY THE APPELLANT, LEADING TO THE PRESENT APPEAL . 15. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. THE CASE OF BOTH THE PARTIES BEFORE US CONTINUED TO BE THE SAME. THE LANGUAGE OF THE DOCUMENT AND THE MANNER OF ITS WRITING IS ABUNDANTLY CL EAR, SO THAT THERE IS NO QUESTION OF THE RECORDED AMOUNT S BEING PROPOSED TO BE RECEIVED AND PAID BY THE ASSESSEE, AS S TATED BY HIM. IN FACT, THE VERY FACT THAT THE PAYMENTS CAME TO BE N ET TED AND THE NET AMOUNT W ORKED OUT, W OULD VAL IDATE THIS. FURTHER, THE EQUIVALEN CE IN INDIAN RUPEES (INR); THE AMOUNT HAVING BEEN RECEIVED - AS CLEARLY STATED THEREIN, IN FOREIGN EXCHANGE, WORKED OUT BY APPLYING A PARTICULAR RATE, WHICH W OULD ONLY BE WITH REFERENCE TO A PARTICULAR DATE , ESTABLISHES THIS . THE SAME, THUS, CLEAR LY IS AN ACCOUNT OF THE SUMS RECEIVED AND PAID OVER A PERIOD OF TIME. AT THE SAME TIME, IT IS ALSO APPARENT THAT WHAT STANDS RECEIVED BY THE ASSESSEE FROM KT, WAS NOT ON HIS OWN ACCOUNT , BUT FOR BEING TRANS MIT TED TO HAK. THIS IS ALSO CLEAR FROM THE BALANC E RS.1 LAC STATED TO BE RECEIVABLE (FROM KT) IN - AS - MUCH AS HAK WAS PAID RS.41 LACS, ON A PARTICULAR ACCOUNT AND ON/ OVER A PARTICULAR DATE/ PERIOD , AS AGAINST RS.40 LACS RECEIVED ON THAT ACCOUNT/PERIOD FROM KT. NO DATES HAVE BEEN MENTIONED, SO THAT THE ONLY INFERENCE IS OF BOTH THE PAYMENTS AND RECEIPTS RELATING TO THE SAME ACCOUNT AND PERIOD. FURTHER, I N THE ABSENCE OF THE MENTION OF DATES, THE AMOUNT PAID HAS TO BE REGARDED AS FROM TH AT RECEIVED . THIS MAY WELL MAY NOT BE TRUE , SO THAT THE AMOUNT CAME TO BE PAID BY THE ASSESSEE IN THE FIRST INSTANCE, ONLY TO BE LATER 13 ITA NO S . 7668/M/10, 6104/M/10 & 7259/M/10, 6129/M/10 (A.Y S . 2006 - 07 & 2007 - 08) SYED AHMED ABBAS NAQVI RECOVERED FROM KT, OR TRUE IN PART, SO THAT PART OF THE AMOUNT PAID WAS PRIOR TO IT HAVING BEEN IT RECEIVED IN WHOLE OR IN PART BY THE ASSESSEE, A S ALSO APPARENT FROM RS.1 LAC GIVEN IN EXCESS . HOWEVER, IN THE ABSENCE OF ANY DATE - WISE DETAILS, THE ASSESSEE HAS NECESSARILY TO BE ALLOWED CREDIT FOR THE ENTIRE AMOUNT RECEIVED AGAINST THAT PAID. THE ASSESSEE COULD, THUS , ONLY BE REQUIRED TO EXPLAIN THE SOURCE OF RS.2.5 LACS, I.E. RS.1 LAC PAID IN E XCESS TO HAK (OVER THAT RECEIVED FROM KT) AND THE AMOUNTS STATED TO BE SPENT ON TICKETS (RS.1.5 LACS). THIS IS AS THE BALANCING (I.E., WORKING OUT THE BALANCE FIGURE) OF RS.2.5 LACS ITSELF CONFIRMS THE SPENDING BEING PRIOR TO THE RECEIPT OF ANY SUM IN ITS RESPECT. THE ASSESSEE HAVING NOT EXPLAINED THE SOURCE THEREOF, THE SUM OF RS.2.5 LACS IS LIABLE FOR BEING CONFIRMED AS DEEMED INCOME U/S. 69 OF THE ACT . FURTHER, THE ASSESSEE HAS RECEIVED RS.11 LACS FROM KT AS AGAINS T THE BALANCE DUE OF RS.2.5 LACS FROM HI M. WHY? AGAIN , THERE IS NO EXPLANATION. THE EXCESS OF RS.8.5 LACS WOULD, ACCORDINGLY, HAVE TO BE PRESUMED AS RECEIVED BY THE ASSESSEE ON HIS OWN ACCOUNT, I.E., IN THE ABSENCE OF ANY EXPLANATION FROM THE ASSESSEE, WHO CONTINUES TO BE IN THE DENIAL MODE. SEC TION 10 6 OF THE INDIAN EVIDENCE ACT CLEARLY OBLIGES THE ASSESSEE TO FURNISH THE NECESSARY INFORMATION OR EVIDENCE THAT HE IS EXPECTED TO BE OR IS IN THE KNOW OR POSSESSION OF, I.E., THE BURDEN OF PROVING THE SAME IS ON HIM. HAVING RECEIVED THE SAME, AS CLE ARLY STATED , HE WOULD SURELY KNOW THE PURPOSE FOR WHICH THE SAME HAS BEEN RECEIVED, AS WE HAVE OBSERVED AND FOUND TO BE THE CASE FOR THE AMOUNT S PAID TO HAK (RS.41 LACS). THE DOCUMENT IS PATENTLY CLEAR, EVEN AS IT IS TO BE PRESUMED TO REPRESENT THE TRUTH, I.E., AS REGARDS ITS CONTENTS (SECTION 292C), WHICH PRESUMPTION HAS NOT BEEN REBUTTED. ACCORDINGLY, RS.8.5 LACS WOULD ALSO MERITS BEING CONFIRMED FOR ADDITION. COMING TO THE YEAR OF PAYMENT /RECEIPT AND, THUS, OF IT BEING BROUGHT TO TAX, IT IS CLEAR THAT TH E AMOUNTS HAVE BEEN PAID AND RECEIVED DURING THE PERIOD PRIOR TO AND UP TO 16.04.2006, WHICH DATE FALLS IN TH E PREVIOUS YEAR RELEVANT TO A.Y. 2007 - 08, I.E., THE YEAR OF ASSESSMENT. IN THE ABSENCE OF MENTION OF ANY OTHER DATE, THE PRESUMPTION AS TO 14 ITA NO S . 7668/M/10, 6104/M/10 & 7259/M/10, 6129/M/10 (A.Y S . 2006 - 07 & 2007 - 08) SYED AHMED ABBAS NAQVI TIME THA T WOULD OBTAIN IS THAT THE SAME IS AS CLOSE TO THE SAID DATE, I.E., 16.04.200 6 , AS POSSIBLE. THE ASSESSEE, AS AFORE - STATED HAS REFUSED TO CO - OPERATE IN ANY MANNER. WE, ACCORDINGLY, FIND THE ADDITION TO THE EXTENT OF RS.11 LACS (RS.2.5 LACS + RS.8.5 LACS) F OR A .Y. 2007 - 08 AS VALID IN LAW, I.E., ON ACCOUNT OF UNEXPLAINED SOURCE OF PAYMENT (RS.2.5 LACS) AS WELL AS SUPPRESSED RECEIPT (RS.8.5 LACS) . WE DECIDE ACCORDING LY, AND THE ASSESSEE GETS PART RELIEF. W E MAY BEFORE PARTING ADD THAT AN ADDITION FOR RS.19,00, 000/ - ON PROTECTIVE BASIS HAS BEEN MADE BY THE A.O. (VIDE PARA 10, PG S. 3 - 5 OF THE ASSESSMENT ORDER), WHICH HAS SINCE BEEN DELETED BY THE LD. CIT(A), AND IS ACCORDINGLY THE S UBJECT MATTER OF THE REVENUES APPEAL (IN ITA NO. 7259/MUM/2010). 15 A . GROUND # 4 IMPUGNS THE ADDITION FOR RS.20,000/ - , REFERABLE TO PG. 34A OF ANNEXURE A1 (APB PG. 93 ). THE SAME, READING AS UNDER, WAS EXPLAINED BY THE ASSESSEE AS BEING A NOTING REGARDING SO ME QUOTATION FOR PURCHASE OF BATHROOM FITTINGS: FOR BATHROOM FITTINGS 20,000 F OR RASHIB (SANTACRUZ) THE SAID EXPLANATION WAS NOT FOUND ACCEPTABLE AS THE ASSESSEE DID NOT LEAD ANY EVIDENCE, RATHER, DID NOT FURNISH ANY EXPLANATION QUA THE SAME. IF THE AMOUNT IS FOR BATHROOM FITTINGS FOR, AS IS APPARENT , RASHIB, A CLIENT, THE SAME WO ULD FIND REFLECTION IN THE ASSESSEES ACCOUNTS. THE WORK WOULD PRESUMABLY N OT BE LIMITED TO MERELY INSTALLING OR REPLAC ING BATHROOM FITTINGS FOR THIS NOMINAL V ALUE , WHILE NO OTHER DOCUMENT IN RESPECT OF THE SAID PROJECT/CLIENT APPEARS TO HAVE BEEN FOUND. T HE CONTENTION OF IT BEING A QUOTATION IS AGAIN WHOLLY WITHOUT MERIT AS A QUOTATION WOULD ONLY BE FOR A SPECIFIC ITEM/S (NOT MENTIONED); FROM A PARTICULAR DEALER, AND VALID FOR A PARTICULAR PERIOD . FURTHER, THE AMOUNT IS IN A ROUND FIGURE , IMPLYING THAT THE SAME IS A NOTING WITH REGARD TO THE AMO UNT SPENT OR , RATHER, LIKELY TO BE SPENT, ON BATHROOM FITTINGS FOR A CLIENT (RASHIB). FURTHER, THE SAME ALSO CANNOT BE SAID TO REPRESENT AN ACCOUNT OF A CLIENT , OR A PART THEREOF . NOTHING DEFINITE THUS EMANATES FROM THE SAID DOCUMENT , WHICH IS IN ALL PROBABILITY AN INCOMPLETE ONE. WE, ACCORDINGLY, FIND NO 15 ITA NO S . 7668/M/10, 6104/M/10 & 7259/M/10, 6129/M/10 (A.Y S . 2006 - 07 & 2007 - 08) SYED AHMED ABBAS NAQVI REASON FOR ADDITION OF THE SAID SUM, EVEN IF UNEXPLAINED, WHICH IS THUS DIRECTED FOR DELETION. WE DECIDE ACCORDINGLY. 16. GROUND # 5 PERTAINS TO AN ADDITION FOR R S.2,72,635/ - , REFERABLE TO PAGE 37 OF ANNEXURE A - 1 (APB PG. 97) , WHICH READS AS UNDER: DULLUP ANNYA CONST . 1,42,170/ - (1) 47,600/ - (2) PAID 1,35,000 BAL. 54,770/ - ATRIA BAL 13,415/ - (3) WADALA 56,450/ - 13,000/ - 69,450/ - (4) PAID 50,000 / - BAL 19,450/ - P S : NOTATION S (1) TO (4) ARE BY US, TO MARK THE AMOUNT S ADDED AS THE ASSESSEES INCOME. THE SAME WAS EXPLAINED DURING ASSESSMENT AS BEING NOTINGS OF PAYMENT S TO BE MADE TO DIFFERENT PERSONS INVOLVED IN INTERIOR WORK OF OFFICE S IN DU NLOP, ATRIA AND WADALA (REFER PARA 13/PGS.8 - 9 OF THE ASSESSMENT ORDER) . THE ASSESSEE WAS , BY OWN ADMISSION, IT WAS NOTED BY THE A.O., WORKING ON THE DUNLOP PROJECT. THE ASSESSEES EXPLANATION WAS , THUS, CONSIDERED AS WITHOUT BASIS, AND IN ANY CASE UNSUPPOR TED BY EVIDENCE. THE ENTIRE AMOUNT OF WORK CHARGED, I.E., AS PER THE NOTING , AGGREGATING TO THE IMPUGNED SUM OF RS.2.73 LACS, WAS ACCORDINGLY ADDED . BEFORE THE LD. CIT(A), THE ASSESSEE STATED OF THE AMOUNTS BEING DULY REFLECTED IN HIS BOOKS OF ACCOUNT , PRO DUCING THE SAME. THE LD. CIT(A), HOWEVER, WAS OF THE VIEW THAT THE SAME WERE NOT ACCEPTABLE IN - AS - MUCH AS NO BOOKS WERE PRODUCED BEFORE THE A.O. THE ACCOUNTS WERE, IN ANY CASE, UNAUDITED AND ALSO DID NOT MATCH WITH THE SEIZED MATERIAL. THE ADDITION BEING T HUS CONFIRMED , THE ASSESSEE IS IN SECOND APPEAL. 16 ITA NO S . 7668/M/10, 6104/M/10 & 7259/M/10, 6129/M/10 (A.Y S . 2006 - 07 & 2007 - 08) SYED AHMED ABBAS NAQVI 17. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. THE CASE OF THE PARTIES BEFORE US CONTINUES TO REMAIN THE SAME. FURTHER, FOR THE SAME REASONS THAT INFORM OUR DECISION FOR A.Y. 2005 - 06, AS STATED AT PARA S 9 - 11 OF OUR COMBINED ORDER FOR A.YS. 2004 - 05 AND 2005 - 06 (IN ITA NOS. 2807 AND 2808/MUM/2010 DATED 09.10.2015 ), WE, CONSIDERING THE MATTER AS FACTUALLY INDETERMINATE, DECIDE LIKEWISE, RESTORING THE MATTER BACK TO THE FILE OF THE LD. CIT( A) FOR FRESH ADJUDICATION, AND WITH LIKE DIRECTION S . REFERENCE IN THE MATTER IS ALSO MADE TO PARA 6 OF THIS ORDER. WE DECIDE ACCORDINGLY. 18. VIDE GROUND # 6 THE ASSESSEE IMPUGNS THE ADDITION IN THE SUM OF RS.26,47,375/ - , MADE WITH REFERENCE TO PG. 50 OF ANNEXURE A1 (TO PANCHANAMA DATED 06.01.2007) PLACED AT APB PG. 110 , REPRODUCED AS UNDER: AN ISO 9001 - 2000 CERTIFIED COMPANY (*) 10,15,000 400 2,75,000 100 X 3 4 ,89,000 18,000 18,61,300 54,000 WALL (OUTSIDE) 6,00,000 GLASS 1,56,000 M AHAVER 4,0 00 PAINTING 5,000 SLAP (*) ALREADY PRINTED , WHILE THE OTHER NOTING IS BY HA N D. ON BEING QUESTIONED IN ITS RESPECT, THE ASSESSEE EXPLAINED THE SAME IN THE ASSESSMENT PROCEEDINGS TO BE AN ESTIMATION OF THE EXPENDITURE UNDER VARIOUS HEADS OF INTERIOR WOR K (REFER PARA 14/PG. 9 OF THE ASSESSMENT ORDER) . THE ARRANGEMENT, HOWEVER, DID NOT MATERIALIZE, SO T HAT THE SAME HAS NO INCOME IMPLICATION . HOWEVER, BEFORE THE LD. CIT(A), THE ASSESSEE CHANGED H IS STAND, ADMITT ING TO HAVE RECEIVED AN ADVANCE OF RS.25 LACS FOR THE SAID WORK FROM HIS CLIENT BY CHEQUE/S, AND WHICH (RECEIPT) STOOD 17 ITA NO S . 7668/M/10, 6104/M/10 & 7259/M/10, 6129/M/10 (A.Y S . 2006 - 07 & 2007 - 08) SYED AHMED ABBAS NAQVI DULY REFLECTED IN HIS ACCOUNTS. THE LD. CIT(A), HOWEVER, FOR THE SAME REASONS AS STATED IN RESPECT OF G ROUND 3, 4 & 5 (FOR A.Y. 2006 - 07 / REFER PARA S 4, 16 (SUPRA)), DID NOT FIND THE SA ME ACCEPTABLE AND REJECTED THE ASSESSEES CASE, SO THAT , AGGRIEVED, THE ASSESSEE IS IN SECOND APPEAL. 19. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. LIKE SUBMISSIONS WERE MADE BEFORE US AS WELL. WE ARE UNABLE TO SEE AS TO WHY THE ASSES SEE PRODUCING HIS ACCOUNTS BEFORE THE REVENUE, IT DOES NOT EXAMINE THE SAME, VERIFYING HIS CLAIMS. THE NON - AUDIT OF ACCOUNTS, WHICH IS CERTAINLY AN ENABLING AND ASSISTING FACTOR, CANNOT BY ITSELF BE A REASON FOR NOT ADMITTING THE ASSESSEES CLAIM; THE SATI SFACTION WITH REGARD TO THE ASSESSEES EXPLANATION, TOWARD WHICH HE PRODUCES HIS BOOKS, IS ONLY OF THE REVENUE, SO THAT IT IS IT S , AND NOT THAT OF ANY OTHER ( AS THE AUDITOR) , THAT WOULD OBTAIN. FURTHER ON, WHEN THE SEIZED MATERIAL (APB PG. 110) IS ONLY AN ESTIMATION OF THE WORK TO BE DONE, AS IT APPEARS FROM THE COST OF VARIOUS JOBS INVOLVED BEING LISTED IN ROUND FIGURES, ON A SLIP PAD BEARING THE LOGO OF, PRESUMABLY THREE TH ROUGH DIFFERENT COMPANIES, VIZ. VAS ANZ, LIBERTY AND A NOTHER, OR EVEN AS INFERABLE FROM THE MENTION OF IT BEING AN ISO CERTIFIED CO., ONE COMPANY, WHERE IS THE QUESTION OF ANY ERROR BEING POINTED OUT WITH REFERENCE THERETO. NO SPECIFIC ERROR HAS, IN FACT, BEEN STATED BY T HE LD. C IT(A) , WHO HAS, WE ARE AFRAID TO SAY , NOT APPLIED HIS MIND TO THE MATTER. WE ARE CONSCIOUS THAT THE ASSESSEE MAY HAVE COMPILED THE BOOKS PRODUCED ONLY SUBSEQUENTLY IN - AS - MUCH AS THE SAME WERE NOT FOUND DURING SEARCH , AND NEITHER IS THERE ANY REFERENCE THERETO THEREAT, EVEN AS OBSERVED BY US WHILE ADJUDICATING HIS APPEAL F OR A.Y. 2005 - 06 ( ALSO REFER PAR A 6 OF THIS ORDER) . SO , HOWEVER, WHEN HE P RODUCES THE SAME BEFORE THE FIRST APPELLATE AUTHORITY, WHO HAS COTERMINOUS POWERS, WITH THE AMOUNTS HAVING BEEN ALREADY RECEIVED THROUGH THE BANKING CHANNEL , THE SAME WOULD R EQUIRE BEING EXAMINE D ON MERITS IN - AS - MUCH AS THE BURDEN OF PROOF, SO AS TO SATISFACTORILY EXPLAIN THE TRANSACTION /S , IS ONLY ON THE ASSESSEE. T HE BOOKS OF ACCOUNT , EVEN IF MAINTAINED IN THE REGULAR COURSE OF BUSINESS, 18 ITA NO S . 7668/M/10, 6104/M/10 & 7259/M/10, 6129/M/10 (A.Y S . 2006 - 07 & 2007 - 08) SYED AHMED ABBAS NAQVI OR COMPILED SUBSEQUENTLY , THOUGH CARR YING DIFFERENT EVIDENTIARY VALUE, WOULD NOT ADMIT OF AUTOMATIC ACCEPTANCE AND WOULD DEFINITELY WARRANT BEING EXAMINED FOR VERACITY , PARTICULARLY CONSIDERING THAT I T PURPORTS TO BE A RECORD OF THE TRANSACTIONS C LAIMED TO HAVE BEEN ALREADY EXECUTED/UNDERTAKE N. THE MATTER IS, ACCORDINGLY, RESTORED BACK TO THE FILE OF THE LD. CIT(A). WE DECIDE ACCORDINGLY. 20. GROUND # 7 RELATES TO AN ADDITION FOR RS.1,91,326/ - , REFERABLE TO PAGE 55 OF ANNEXURE A1 OF THE SEIZED MATERIAL (APB PG. 117). THE ASSESSEE EXPLAIN ED T HE SAME AS BEING THE DETAIL OF THE EXPENDITURE INCURRED FOR THE PLA S TERING WORK FOR DIFFERENT TENANTS OF THE JAGDESH KUNJ BUILDING, INCURRED BY VARIOUS PERSONS (SUB - CONTRACTORS) . THE WORK BEING SUPERVISED BY HIM, THE DETAIL OF THE SAID PAYMENTS, WHICH WERE PAID BY THE TENANTS TO THE CONTRACTOR DIRECTLY, WERE RETAINED BY HIM. THE NOTINGS WERE NOT IN HIS HAND, AND THAT HE HAD NOT PAID ANYTHING TO THE SUB - CONTRACTORS (REFER PARA 15/PG.9 OF THE ASSESSMENT ORDER) . THE SAME DID NOT FIND FAVOUR WITH THE A.O. IN VI EW OF THE NON - SUBSTANTIATION , AS WELL AS SECTION 292C BEING ATTRACTED. BEFORE THE LD. CIT(A), THE ASSESSEE HAVING ACCEPTED TO HAVING UNDER TA KEN THE CIVIL CONSTRUCTION WORK FOR THE SAID PROPERTY, SO THAT THERE WAS CHANGE IN STAND AGAIN, THE SAME MERITED REJ ECTION AT THE OUTS ET . AGGRIEVED, THE ASSESSEE IS IN SECOND APPEAL. 21. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. THE CASE OF BOTH THE PARTIES BEFORE US REMAINS THE SAME. WE OBSERVE NO INCONSISTENCY IN THE ASSESSEES EXPLANATION, WHIC H THOUGH REMAINS TO BE PROVED. WE HAVE RATHER OBSERVED THE ASSESSEE TO BE WORKING THROUGH SUB - CONTRACTORS. AS LONG AS IT IS ADMITTED THAT THE PROJECT WORK UNDER REFERENCE IS IN RESPECT OF JA G D I SH KUNJ PROPERTY, WORK IN RESPECT OF WHICH WAS SUPERVISED BY HI M , THE IMPUGNED DOCUMENT IS OF CONCERN TO THE ASSESSEE , AND THUS RELEVANT , WHICH IS FURTHER ESTABLISHED BY THE FACT OF IT BEING FOUND IN HIS POSSESSION . WHE THER THE PAPER WRITTEN IS IN THE ASSESSEES OWN HAND OR NOT, IS NOT MATERIAL, AND MAY WELL BE WRITTE N BY SOMEBODY ON HIS BEHALF, AS BY AN EMPLOYEE. THE 19 ITA NO S . 7668/M/10, 6104/M/10 & 7259/M/10, 6129/M/10 (A.Y S . 2006 - 07 & 2007 - 08) SYED AHMED ABBAS NAQVI CRUX OF THE ASSESSEES STATEMENT IS TH AT THE PAYMENT TO DIFFERENT SUB - CONTRACTORS STOOD MADE DIRECTLY BY THE TENANTS. IF THAT BE SO, WHY DOES THE ASSESSEE NEED TO MAINTAIN THE ACCOUNT ? RATHER, AS IS COMMO N EXPERIENCE, LEFT TO THE TENANTS, SOME OR PERHAPS MOST OF THEM , MAY NOT BE INCL INED TO , OR OTHERWISE RELUCTANT TO AGREE FOR THE WORK BEING UNDERTAKEN OR , IN ANY CASE , PAY FOR IT. EVEN THE SUB - CONTRACTORS WOULD NOT RISK SUCH AN ARRANGEMENT AS THE T ENANT , WITH WHOM THEY HAVE NO PR I VITY OF CONTRACT, MAY NOT PAY THEM. IT IS ALSO QUIZZICAL THAT A NUMBER OF SUB - CONTRACTORS , AND FOR PALTRY SUM S, ARE INVOLVED. IT IS ONLY THE ASSESSEES ACCOUNTS, WHICH REMAIN TO BE VERIFIED , WHICH PERHAPS COULD PROVIDE ANSWER TO THE VARIOUS ISSUES ARISING. THE ASSESSEE IS SUPERVISING THE PROJECT, WHICH INCLUDES THE WORK UNDER REFERENCE, SO THAT HIS REMUNERATION OR INTER E ST , BOTH IN ITS VALUE AS WELL AS PROGRESS, IS ONLY UNDERSTANDABLE. THE MATTER IS CLEARLY FACTUAL LY INDETERMINATE . W E , ACCORDINGLY , RESTORE IT BACK TO THE FILE OF THE LD. CIT(A) FOR ADJUDICATION AFRESH. THE ONUS, WE MAY CLARIFY , TO EXPLAIN THE DOCUMENTS WITH REFERENCE TO HIS BOOKS OR EVEN OTHERWISE IS ON THE ASSESSEE, F AILI NG WHICH THE REVENUE IS AUTHORIZE D TO DRAW A NY INFERENCE AS ADMISSIBLE ON T HE CONSIDERATION OF AND CONSISTENT WITH T HE OVERALL FACTS AND CIRCUMSTANCES OF THE CASE. WE DECIDE ACCORDINGLY. 22. GROUND # 8 IS IN RESPECT OF AN ADDITION IN THE SUM OF RS.48,41,188/ - , REFERABLE TO PAGES 1 TO 11 OF ANNE XURE A - 2 (TO PANCHANAMA DATED 06.01.2007). THE SAME WERE EXPLAINED TO BE NOTINGS BY ONE, SURESH MISTRY REGARDING MEASUREMENT OF WORK TO BE DONE AND THE ESTIMATED COST OF THE WORK TO BE DONE BY IT, FOR THE DUNLOP WORK. PAGE 9 THEREOF, READING AS UNDER, IS T HE SUMMARY OF THE VARIOUS ESTIMATIONS MADE IN TH E PRECED ING PAGES, I.E., PGS. 1 TO 8, AGGREGATING TO THE IMPUGNED SUM: 16,31,000 - W.P. & P. WALL 10,50,000 - EXT. PLASTER 2,50,000 - COMP. WALL 1,50,000 1,60,000 PLUMBRING 20 ITA NO S . 7668/M/10, 6104/M/10 & 7259/M/10, 6129/M/10 (A.Y S . 2006 - 07 & 2007 - 08) SYED AHMED ABBAS NAQVI 3,00,000 DEBRIS 13,00,000 SLIDING WIN DOW THERE WAS NOTHING TO SHOW THAT THE WORK HAD NOT ACTUALLY BEEN UNDERTAKEN, EVEN AS THE SAME WOULD ATTRACT THE PRESUMPTION U/S.292C OF THE ACT. IN APPEAL, THE SAME STOOD CONFIRMED, EVEN AS THE ASSESSEE ADMITTED TO THE SAID WORK, CLAIMING THE SAME TO BE DULY REFLECTED IN HIS ACCOUNTS , AS THE ACCOUNTS WERE NOT AUDITED AND , FURTHER , IN MANY CASES THE DATES OF THE PAYMENTS DID NOT MATCH WITH THAT AT WHICH THE SAME WERE RECORDED IN THE ASSESSEES BOOKS. AGGRIEVED, THE ASSESSEE IS IN SECOND APPEAL. 23. WE HA VE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. THE ARGUMENTS BEFORE US WERE A REITERATION OF THEIR RESPECTIVE CASES AT THE ASSESSMENT AND THE FIRST APPELLATE STAGE. THE DOCUMENTS UNDER REFER ENCE ARE PAGES OF A NOTE BOOK (PRAKASH NOTE B OOK) , PLA CED AT PAGES 120 - 127 OF THE APB . T HE SAME BEAR, IN GREAT DETAIL, THE MEASUREMENT FOR DIFFERENT WORKS , VIZ. TERRACE WATER PROOFING, PARAPET PLASTERING, ENTRANCE DOUBLE COAT, RCC BR E AKING TILE, ETC. PAGE 11 (APB PG. 127), SIMILARLY , CONTAINS THE TOTAL (RS.30 .43 LACS , THOUGH THE CORRECT SUM IS RS.30.53 LACS) , BEING A SUMMARY OF DIFFERENT WORKS, EACH SEPARATELY VALUED, WHICH THOUGH D OES NOT MATCH WITH THAT DETAIL IN THE PRECEDING PAGES, WHICH STAND SUMMARIZED AT PAGE 9 (SUPRA), FURTHER BEARING THE HEADING A S O N 26.04.2006. THESE PAGES ARE AT LEAST IN 3 TO 4 DIFFERENT HANDS. IT IS APPARENT THAT THE SAME BELONG TO THE SAME SET OF WORKS CARRIED OUT BY DIFFERENT PERSONS , VIZ. SURESH, CHAND, MAHAVIR, ETC. THERE IS NO QUESTION OF THE PAPERS BEING RETAINED IF THE WOR K HAD NOT BEEN CARRIED OUT, AND DID NOT PROCEED BEYOND THE QUOTATION STAGE. THE HEARING A S O N 26.04.2006 FURTHER CLARIFIES OF THE SAME BEING THE STATUS OF THE WORK AS ON A PARTICULAR DATE , I.E., IS QUA THE WORK UNDERTAKEN. THE ASSESSEE , IN FACT , ADMITS A T THE APPELLATE STAGE TO THE WORK HAVING BEEN CARRIED OUT FOR THE WORLI OFFICE OF DUNLOP. THE CASE OF THE ASSESSEE AND THE REVENUE BEING THE SAME AS FOR GROUNDS # 6 & 7 OF THIS APPEAL, WE ONLY CONSIDER IT 21 ITA NO S . 7668/M/10, 6104/M/10 & 7259/M/10, 6129/M/10 (A.Y S . 2006 - 07 & 2007 - 08) SYED AHMED ABBAS NAQVI PROPER TO, FOR THE SAME REASONS AND WITH THE SAME D IRECTIONS, RESTORE THE MATTER BACK TO THE FILE OF THE LD. CIT(A) (REFER PARA 19 & 21 OF THIS ORDER) . WE DECIDE ACCORDINGLY. 24. GROUND # 9 IS IN RESPECT OF AN ADDITION IN THE SUM OF RS.15,75,000/ - MADE WITH REFERENCE TO PAGES 13 - 15 OF ANNEXURE A - 3 OF THE SEIZED MATERIAL ( CORRESPONDING TO PAGES 140 - 142 OF APB ) . THE SAME RELA TE TO THE ACCOUNT OF MANIKJIS ( MANIKLAL M. SHAH ) , THE OWNER OF JAGDISH KUNJ PROPERTY , FOR WHICH THE ASSESSEE HAD UNDERTAKEN THE CONSTRUCTION WORK. THE SAME FORMS THE SUBJECT MATTER OF ADDITION FOR A.Y. 2006 - 07 ( CHALLENGED VIDE G ROUND S 3 & 4 ) , WHICH STAND S IN FACT ADJUDICATED BY US VIDE PAR A 6 OF THIS O RDER. OUR DECISION QUA THE SAID GROUND WOULD NECESSARILY BE THE SAME, THE FACTS AND CIRCUMSTANCES AS WELL A S THE CASE OF THE OPPOSITE SID ES BEING THE SAME, BESIDE S BEING ON THE SAME SET OF MATERIALS. WE DECIDE ACCORDINGLY. 25. VIDE HIS GROUND # 10, THE ASSESSEE IMPUGN S AN ADDITION IN THE SUM OF RS. 19.35 LACS , BEING IN RESPECT OF NOTINGS FOUND ON PG. 1 6 OF ANNEXURE A - 3 OF THE SEIZED MATERIA L (CORRESPONDING TO APB PG. 143), REPRODUCED AT PARA 17 (II) / PG. 12 OF THE ASSESSMENT ORDER. THE SAME LISTS THE PAYMENTS STATED DUE TO BE RECEIVED BY THE ASSESSEE FROM DIFFERENT PERSONS, AS UNDER: TO RECEIVE B Y ME (ABBAS ) AMOUNT S TO COME 15,00,000 LA C S FROM BHARAT MEHTA 1,00,000 LACS FROM RAMESH KISANI 1,00,000 LACS FROM VENU 1,00,000 LACS FROM VENU 1,00,000 LACS FROM PAPPU (JAGGUS BROTHER) 1,25,000 LACS FROM JAGGU 1,00,000 LACS FROM AMIR HYDERABAD 9,50,000 LACS FROM MANIKJI ( SCORED OUT AND TICKED AS RECEIVED ) 6,50,000 LACS FROM GURUJI 2,00,000 LACS FROM BHARAT MEHTA ( SCORED OUT AND TICKED AS RECEIVED ) 1,15,000 LACS FROM DIMPLE KI SANI (WORDS ITALICIZED ARE WRITTEN BY US , AND NOT PART OF THE DOCUMENT) 22 ITA NO S . 7668/M/10, 6104/M/10 & 7259/M/10, 6129/M/10 (A.Y S . 2006 - 07 & 2007 - 08) SYED AHMED ABBAS NAQVI THE ASSESSEES CASE BEFORE THE A.O. WAS OF THE S AME BELONGING TO RDC , WHICH OF - COURSE DID NOT FIND HIS FAVOUR IN VIEW OF ABSENCE OF ANY LINK BETWEEN THE TWO BEING ESTABLISHED, EVEN AS THE PRESUMPTION OF SECTION 292C WOULD STAND TO BE ATTRACTED. IN FACT, BHARAT MEHTA AND MANIKJI ARE ADMITTEDLY THE ASSESS EES CLIENTS. BEFORE THE LD. CIT(A), THE SAME STOOD CONFIRMED IN - AS - MUCH AS THE ASSESSEE WAS UNABLE TO IM PROVE UPON HIS CASE IN ANY MANNER. THE POSITION CONTINUES TO BE THE SAME BEFORE US. THE A.O. HAS ALREADY ALLOWED CREDIT TO THE ASSESSEE IN RESPECT OF T HE SUMS ALREADY RECEIVED FROM TWO CLIENTS, VIZ. MANIKLAL SHAH AND BHARAT MEHTA, NOTED IN THE DIARY ITSELF (AND WHICH FACT STANDS DULY NOTED BY THE A.O. ) SO THAT ONLY THE BALANCE AMOUNT CAME T O BE ADDED. 26. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. OUR FIRST OBSERVATION IN THE MATTER IS THAT THE ASSESSEE DESPITE HAVING BEEN ALLOWED ADEQUATE OPPORTUNITY TO EXPLAIN THE SAME , HAS BEEN UNABLE TO FURNISH ANY SATISFACTORY EXPLANATION WITH REGARD TO THE SAID AMOUNTS, ATTRIBUTING THE SA ME, C LEARLY STATED AS DUE TO HIM IN THE SEIZED DOCUMENT, AS BELONGING TO RDC ON THE SPECIOUS PLEA THAT THE DIARY BELONGS TO IT , THE FOLDER BEARING ITS NAME . THE NAME APPEARING ON THE COVER OF THE DIARY DOES NOT INDICATE THAT OF ITS OWNER, BUT OF ITS SPONSOR E R IN - AS - MUCH AS THE DIARIES - WHICH IS AN ITEM OF EVERYDAY USE, A RE GENERALLY PRINTED AND DISTRIBUTED TO DIFFERENT STA K E HOLDERS BY A BUSINESS HOUSE AS ADVERTISEMENT MATERIAL . THE AMOUNTS FROM SOME OF THE PARTIES AS BHARAT MEHTA AND MANIKJI, AS STATED BY TH E A.O., ARE CLEARLY THE ASSESSEES CLIENTS, EVEN AS THE NOTING IS IN THE HAND OF THE ASSESSEE. W E, FURTHER, OBSERVE THAT EACH OF THE AMOUNTS IS IN ROUND FIGURES. IT MAY WELL BE THAT THESE AMOUNTS ARE RECOVERABLE BY THE ASSESSEE ON ACCOUNT OF LOAN, ETC. AS HE WAS CONTEMPLATING INVESTING HUGE SUMS IN A JOINT VENTURE WITH MR. NIRMAL DAFTARY, HAVING FOUND TO HAVE ALREADY INVESTED RS.30 LACS, WITH FURTHER RS.20 LACS TO BE INVESTED BY 15.01.200 5 (REFER PARAS 6 T O 8 OF THE TRIBUNALS ORDER IN ITA NO. 2808/MUM/2010 DATED 09.10.2015) , I T COULD WELL BE THAT HE MADE A STATEMENT OF THE AMOUNTS WHICH HAD 23 ITA NO S . 7668/M/10, 6104/M/10 & 7259/M/10, 6129/M/10 (A.Y S . 2006 - 07 & 2007 - 08) SYED AHMED ABBAS NAQVI BEEN GIVEN BY HIM TO, AND THUS DUE TO HIM FROM, DIFFERENT PERSONS. THE AMOUNTS ARE NOTED ON THE LEAF OF THE DIAR Y BEARING THE DATE 21.01.2005. T HE SAME MAY NOT NECESSARI LY IMPLY OF BEING WITH REFERENCE TO THAT DATE; THE ASSESSEE HAVING BEEN F OUND TO HAV E NOTED DATES ON THE DIARY PAGES MU CH SUBSEQUENT TO THE PAGE/ DATE ON/AT WHICH THESE ARE NOTED, VIZ . APB 140 - 142, 151, 152, 153, 154 ( 150 - 154). THE ABSENCE OF ANY MENTION OF ANY DATE, OR OTHERWISE INCONSISTENT THEREWITH, WOULD ONLY IMPLY OF THE DOCUMENT BEING CURRENT, I.E., AS VALID AS ON THE DATE OF THE SEARCH . IN THE INSTANT CASE, THEREFORE, THE SUMS STATED AS DU E TO THE ASSESSEE WOULD BE SO ON 05.01.2007. WE HAVE VIDE THE SAID ORDER ALREADY CONFIRMED THE SAID ADDITION FOR RS.30 LACS INVESTED IN THE JOINT VENTURE WITH MR. NIRMAL DAFTARY. IN FACT, AGAINST SOME OF THE AMOUNTS, VIZ. RS. 2 LACS FROM BHARAT MEHTA AND RS.9.50 FROM MANIKJI, THERE APPEARS A TICK ( ) ABOVE THE AMOUNT STATING THE AMOUNT TO HAVE BEEN RECEIVED (SINCE) . IF SO, THAT MAY WELL EXPLAIN THE SOURCE OF THE STATED INVESTMENTS AND , IN ANY CASE, CORROBORATE THE SAME. 27. AT THIS ST AGE, WE MAY PROCEED TO DISCUSS G ROUND 11 OF THE APPEAL, WHICH WE FIND AS PARA MATER IA IN - AS - MUCH AS THE SAME ALSO ENLIST AMOUNTS, IN THIS CASE, TO BE GIVEN BY THE ASSESSEE, I.E., SYED AHMED ABBAS NAQVI. THE SAID GROUND IMPUGNS THE ADDITION FOR RS.66.50 LACS MADE WITH REFERENCE TO PAGE 18 OF THE ANNEXURE A - 1 OF THE SEIZED MATERIAL (APB PG . 145) (ALSO REFER PARA 17(III)/PG. 13 OF THE ASSESSMENT ORDER) , REPRODUCED AS UNDER: AMOUNT THAT I HAVE TO GIVE (ABBAS) 4,50,000 LACS TO SANJU LAG SANJU TAKEN ABBAS 14 (MUM) (DELHI) 3.5 LACS 6 LACS (DELHI) 6 LACS 4 LACS (MUMBAI) 15 LACS 5 LAC S (UNCLE/IMTIAZ) (DELHI 1 LACS) SANJU 1 LAC (NADIM) 5 (UNCLE) 24 ITA NO S . 7668/M/10, 6104/M/10 & 7259/M/10, 6129/M/10 (A.Y S . 2006 - 07 & 2007 - 08) SYED AHMED ABBAS NAQVI DELHI (1 LAC) MUNEER 50,000 (MUNEER) THE ASSESSEE EXPLAIN ED THE SAME AS PAYMENTS TO BE MADE TO HIM, FOR FURTHER PAYMENTS RECEIVED FROM DIFFERENT PERSONS BASED AT MUMBAI, DELHI AND HYDER ABAD ON BEHALF OF RDC FOR WORK UNDERTAKEN AT THESE PLACES, TO BE GIVEN TO IT (RDC). THE SAME WAS FOUND NOT ACCEPTABLE IN THE ABSENCE OF ANY SUBSTANTIATION. THE SAME STOOD CONFIRMED IN APPEAL; T HE ASSESSEE FAILING TO EFFE C T ANY IMPROVEMENT IN ITS CASE . A GGR IEVED, THE ASSESSEE IS IN SECOND APPEAL. 28. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. THE STAND OF BOTH THE ASSESSEE AND THE REVENUE REMAIN S THE SAME. THERE IS, FIRSTLY, NOTHING TO LINK THE SAID DOCUMENT WITH RDC. FURTHER , WHILE THE ASSESSEE EXPLAINS THE DOCUMENT AS BEARING THE DETAILS OF THE AMOUNTS RECEIVED BY HIM, IT DOES NOT ANYWHERE STATE S SO, BUT ONLY THAT THE SAME ARE TO BE DISB URSED TO ANOTHER SET OF PEOPLE, AND NOT TO RDC, AS THE ASSESSEE EXPLAINS. AGAIN T HE ASSESSEE DOES NO T STATE AS ON WHAT ACCOUNT THE DIFFERENT PAYMENTS ARE EITHER DUE TO HIM OR ARE TO BE PAID. A LSO, WHERE TO BE RECEIVED OR PAID ON BEHALF OF THE RDC, WHAT IS THE BASIS FOR THE SAID CLAIM AND ON WHAT ACCOUNT? NEEDLESS TO ADD , THERE IS NO SUBSTANTIATION OR COR ROBORATION OF ITS CASE WITH REFERENCE TO RDC, AN ORGANIZATION WHICH THE ASSESSEE ADMITS HAVING LEFT IN NOVEMBER/DECEMBER, 2005. IF THE AMOUNTS HAD NOT COLLECTED BY THEN, CERTAINLY THE SAME WOULD NEED TO BE TRANSFERRED TO ANOTHER, WHO WOULD THEN TAKE C HARGE . WHAT , FURTHER , ARE THE FULL NAME S AND ADDRESSES OF THE PERSONS STATED IN THE DOCUMENT? THE DOCUMENT RAISES SEVERAL QUESTIONS, WHICH RATHER THAN BEING ANSWERED, GET MULTIPLIED BY THE EXPLANATION ADVANCED. CONTINUING FURTHER, WE HAVE IN G ROUND # 10 OF THE INSTANT APPEAL, ENCOUNTERED SUMS RECEIVABLE BY THE ASSESSEE P ER A DOCUMENT (AT APB PG. 143/PARAS 25 - 26 OF THIS ORDER), ENLISTING THE SAME. THE SAME , SIMILARLY FOUND, CLEARLY EXHIBIT S SUMS 25 ITA NO S . 7668/M/10, 6104/M/10 & 7259/M/10, 6129/M/10 (A.Y S . 2006 - 07 & 2007 - 08) SYED AHMED ABBAS NAQVI RECEIVED/RECEIVABLE BY THE ASSESSEE. THE T WO DOCUMENTS COULD WELL B E INTER - RELATED AND WHICH FORMS THE REASON FOR OUR ADJUDICATING THE TWO TOGETHER, BY RESTORING THE MATTER BACK TO THE FIRST APPELLATE AUTHORITY, FOR DECIDING THE ISSUE RAISED PER THE SAID GROUNDS BY HIM AFRESH. THE ASSESSEES EXPLANATION IN THE RESTORE D PR OCEEDINGS COULD BE WITH REFERENCE TO ITS ACCOUNTS OR TO THAT OF THE RDC. THE AMOUNTS TO BE GIVEN BY THE ASSESSEE , W E NOTE, C OULD DENOTE HIS LIABILITIES, BUT THEN THE QUESTION WOULD BE ON WHAT ACCOUNT? THAT IS, WHETHER AS TRADING LIABILIT IES OR , PERHAPS, LO ANS , TAKEN FROM DIFFERENT PERSONS, AS WAS ALSO CONSIDERED AS A POSSIBILITY BY US WITH REGARD TO THE SUM S STATED AT APB PG. 143 IN RELATION TO G ROUND 10 (REFER PARA 26 O F THIS O RDER). FURTHER, IF SO, WHERE HAVE THE SUMS BORROWED BEEN INVESTED? THE ASSESSEE, AS IT APPEARS, IS A MAN OF CONSIDERABLE MEANS , WITH VARIOUS INTEREST S , AS W AS SOUGHT TO BE EMPHASIZED BEFORE US BY THE LD. DR WITH REFERENCE TO DOCUMENTS AT APB PGS. 77 - 79 AND 81 - 85. THE FORMER IS AN MOU DATED 05.10.2005, DULY NOTARIZED, E XECUTED BY ONE , JAYANT G. LALWANI, AUTHORIZING THE ASSESSEE TO DEAL WITH A LAND ADMEASURING 229 ACRES , DETAILED THEREIN , AT VILLAGE MALAD, TALUKA : BORIVALI, WITH ALL SUPPLEMENTARY AND INCIDENTAL POWERS. SIMILARLY , APB PGS. 81 - 85 ARE DOCUMENTS IN RESPECT OF BUSINESS TRANSA CTIONS, OSTENSIBLY FOR IMPORT/EXPORT OF TOOTHPASTE AND OTHER PRODUCTS. WE, AS AFORE - STATED, FOR THE FOREGOING REASONS, CONSIDER THE MATTER AS FACTUALLY INDETERMINATE , AND RESTORE THE ISSUE OF CONSIDERATION OF THE SAID DOCUMENT S, SUBJECT MATTER OF GDS. # 1 0 & 11, BACK TO THE FILE OF THE FIRST APPELLATE AUTHORITY FOR FRESH ADJUDICATION , WHO SHALL DO SO BY ISSUING DEFINITE FINDINGS OF FACT UPON AND CONSIDERING ALL THE RELEVANT ASPECTS , INCLUDING WITH REGARD TO TELESCOPING . THE BURDEN, WE MAY CLARIFY TO EXPLAI N THE SAME SATISFACTORILY ; THE CONTENTS THEREOF BEING PRESUMABLE TRUE, IS SOLELY ON THE ASSESSEE. WE DECIDE ACCORDINGLY. 29. IN THE RESULT, THE ASSESSEES APPEAL FOR A.Y. 2007 - 08 (ITA NO. 7668/MUM/2010) IS PARTLY ALLOWED FOR STATISTICAL PURPOSES . 26 ITA NO S . 7668/M/10, 6104/M/10 & 7259/M/10, 6129/M/10 (A.Y S . 2006 - 07 & 2007 - 08) SYED AHMED ABBAS NAQVI REVENUES APPEAL (IN ITA NOS. 6104/M/10 & 7259/M/10) 30. THE REVENUES APPEALS IMPUGN ADDITIONS FOR RS.84 LACS AND RS. 1 9 LACS FOR THE TWO CONSECUTIVE YEARS RESPECTIVELY. PGS. 1 AND 2 OF ANNEXURE - 1 (OF THE SEIZED DOCUMENTS) FOUND FROM THE ASSESSEES RE SIDENCE DURING SEARCH , REFLECT TRADING IN DIAMONDS, I.E., THE PURCHASE OF DIAMOND S/DIAMOND JEWELLERY BY KASHINATH TAPURIAH (KT) FROM SOIR JEWELLER S (SJ) , AND TOWARD WHICH IN FACT CHANDRIKA TAPURIAH (CT), HIS WIFE, HAD ISSUED A CHEQUE FOR RS.1,25, 00, 000/ - , WHICH THOUGH WAS NOT HONORED ON PRESENTATION (STATED TO BE DUE TO PAUCITY OF FUNDS). THE NOTI NGS ON THE SAID PAPERS, AS WELL AS PGS. 3 AND 3A OF THE SAID ANNEXURE, APPARENTLY MAINTAINED BY THE ASSESSEE , WERE ALSO A SUBJECT MATTER OF CONSIDERATION IN THE CA SE OF KT , IN WHOSE HANDS SUBSTANTIVE ASSESSMENTS WERE MADE FOR THESE YEARS ( REFER APB - 14, PGS. 2119 - 2128 , IN HIS CASE ) . CLEARLY, THE ASSESSEE HAD RECEIVED A ND DISBURSE D FUNDS FOR AND ON BEHALF OF TAPURIAJI (KT). THOUGH, THEREFORE, SUBSTANTIALLY ASSESSED I N HIS HANDS, PROTECTIVE ASSESSMENTS WERE ALSO MADE BY THE REVENUE, I.E., TO PROTECT ITS INTEREST, IN THE HANDS OF THE ASSESSEE IN - AS - MUCH AS THE ASSESSMENTS IN THE CASE OF KT WERE LIABLE TO BE CONTESTED IN APPEAL. THE LD. CIT(A), IN APPEAL, DELETED THE AD DITIONS FOR BOTH THE YEARS ON THE GROUND OF HIS HAVING CONFIRMED THE ADDITIONS, ON SUBSTANTIVE BASIS, IN THE HANDS OF KT. AGGRIEVED, THE REVENUE IS IN FURTHER APPEAL. 31. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. THE ADDITION IN THE HANDS OF KT STANDS MADE ON THE BASIS OF THESE VERY PAPERS, AND BEING FOUND IN THE COURSE OF SEARCH, THE STATUTORY PR ESUMPTION OF SECTION 292C WOULD APPLY THERETO . OUR FIRST OBSERVATION IN THE MATTER IS THAT THE SAID ADDITION /S , IN THE HANDS OF KT, SINCE UP HELD BY US (IN ITA NOS. 3815 TO 3821/MUM/2010) , ARE AT RS.53 LACS AND RS.54 LACS FOR A.YS. 2006 - 07 AND 2007 - 08 , RESPECTIV ELY, I.E., THE ADDITIONS MADE RELYING ON THE SAID SET OF PAPERS DO NOT MATCH. WE, HOWEVER, OBSERVE NO DISPUTE WITH REGARD TO THE QUANTU M. IN OUR VIEW, THE ASSESSEES CASE, RATHER TH A N BEING IMPUGNED, IS SAVED BY THE 27 ITA NO S . 7668/M/10, 6104/M/10 & 7259/M/10, 6129/M/10 (A.Y S . 2006 - 07 & 2007 - 08) SYED AHMED ABBAS NAQVI PROVISION S OF SECTION S 132(4) AND 292C OF THE ACT. IN FACT, CORROBORATING DOCUMENTS WERE ALSO FOUND FROM THE RESIDENCE OF KT. THE TRIBUNAL , ON EXAMINING THE FACTS FOUND THE DO CUMENTS FOUND IN SEARCH FROM THE RESPECTIVE RESIDENCES ; THE STATEMENTS BY THE ASSESSEE, AS WELL AS THE COPY OF ACCOUNT (OF KT) IN THE BOOKS OF SJ, TO CLEARLY EXHIBIT THE FACTS, I.E., OF THE AMOUNT /S BEING PAID BY KT TOW ARD THE PURCHASE OF DIAMONDS, AND WHI CH COULD NOT BE CONSIDERED AS MERELY A PROPOSAL , AS STATED BY KT. THE ASSESSEE IS CLEARLY AN INTERMEDIARY. HE MAY HAVE CHARGED SOME AMOUNT FOR HIS SERVICES, OR MAY BE EVEN HELPING A FRIEND OR A CLOSE FRIEND . THAT THOUGH IS THE CASE OF NEITHER PARTY. THE FA CT OF THE MATTER , HOWEVER, REMAINS THAT THE AMOUNTS, AS LISTED IN THE SEIZED DOCUMENTS, WERE PAID AND RECEIVED BY THE ASSESSEE NOT ON HIS OWN ACCOUNT , AS DULY REFLECTED IN THE SEIZED DOCUMENTS , BUT FOR AND ON BEHALF OF THE TAPURIAJI (KT). THE RIGHT OF THE REVENUE TO FRAME A PROTECTIVE ASSESSMENT/S IS NOT IN DOUBT , AND IS WELL ESTABLISHED , EVEN AS CLARIFIED BY THE A PEX C OURT AS FAR AS BACK IN LALJI HARIDAS VS. ITO [1961] 43 ITR 387 (SC). THE SAME, HOWEVER, WOULD ONLY BE WHERE THERE IS SOME GENUINE DOUBT , CON SIDERING THE FACTS AND/OR THE LAW IN THE MATTER, AS TO THE RIGHT PERSON IN WHOSE HANDS THE INCOME UNDER REFERENCE IS TO BE ASSESSED, SO THAT THE REVENUE , PURSUING THE PERSON WHO MAY NOT BE FOUND SUBSEQUENTLY TO THE RIGHT PERSON, MAY NOT LOOSE IT S RIGHTFUL SHARE OF TAXES. AS CLARIFIED ABOVE, WE FIND NO SUCH DOUBT IN THE INSTANT CASE. WE ACCORDINGLY F IND NO BASIS FOR THE IMPUGNED ASSESSMENT AND, ACCORDINGLY, NO BASIS FOR IMPUGNING THE SAME . WE ACCORDINGLY DECLINE INTERFERENCE , DISMISSING THE REVENUES APPEALS . 32. IN THE RESULT, THE REVENUES APPEALS FOR BOTH THE YEARS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON APRIL 25 , 201 6 SD/ - SD/ - ( D. MANMOHAN ) (S ANJAY ARORA) / VICE PRESIDENT / A CCOUNTANT MEMBER MUMBAI ; DATED : 25 . 0 4 .201 6 28 ITA NO S . 7668/M/10, 6104/M/10 & 7259/M/10, 6129/M/10 (A.Y S . 2006 - 07 & 2007 - 08) SYED AHMED ABBAS NAQVI . . ./ ROSHANI , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI