Satishchand G.Mittal, Jalgaon V. ITO, Nashik

ITA 768/PUN/2010

• Counselvise Citation: 76824514 RSA 2010
• Duration Of Justice: 4 year(s) 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 04-11-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 24-05-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K MODI
• Keywords: Unexplained investment; Unexplained expenditure; Documents seized
• Section: 143(3); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO.768/PN/2010 (ASSESSMENT YEAR : 2008-09) SATISHCHAND G. MITTAL, GURUKRUPA, NEAR ONKARESHWAR MANDIR, JALGAON. PAN : ABFPA5093H . APPELLANT VS. INCOME TAX OFFICER, CENTRAL-2, NASHIK. . RESPONDENT ITA NO.863/PN/2010 (ASSESSMENT YEAR : 2008-09) INCOME TAX OFFICER, CENTRAL 2, NASHIK. . APPELLANT VS. SHRI NARESHKUMAR G. MITTAL (IND.), 380, RAMKRISHNA GANJ, KHANDWA, PAN : AINPM9006H . RESPONDENT ITA NO.873/PN/2010 (ASSESSMENT YEAR : 2008-09) INCOME TAX OFFICER, CENTRAL 2, NASHIK. . APPELLANT VS. SHRI SATISHCHAND G. MITTAL (IND.), E-68, MIDC, JALGAON. PAN : ABFPA5093H . RESPONDENT ASSESSEE BY : MR. NIKHIL PATHAK DEPARTMENT BY : MR. A. K. MODI DATE OF HEARING : 17-11-2014 DATE OF PRONOUNCEMENT : 31-12-2014 ORDER PER G. S. PANNU, AM THE CAPTIONED THREE APPEALS RELATE TO TWO ASSESSEES BELONGING TO THE SAME FAMILY AND AS SOME OF THE ISSUES INVOLVED ARE COMMON, THEY HAVE BEEN CLUBBED AND HEARD TOGETHER AND A CONSOLIDATED ORDER IS BEING PASSED FOR THE ITA NO.768/PN/2010 ITA NO.863/PN/2010 ITA NO.873/PN/2010 SAKE OF CONVENIENCE AND BREVITY. THE TWO CAPTIONED ASSESSEES BELONG TO ONE SAHAYOG GROUP OF CASES OF JALGAON WHEREIN A SEARCH ACTION U/S 132 OF THE ACT WAS CARRIED OUT BY THE DEPARTMENT ON 22.11.2007, AN D THE ISSUES INVOLVED IN THE CAPTIONED APPEALS ARISE OUT OF SUCH AN ACTION O F THE DEPARTMENT. 2. FIRSTLY, WE MAY TAKE-UP FOR CONSIDERATION THE CR OSS-APPEALS OF THE ASSESSEE AND THE REVENUE IN THE CASE OF SHRI SATISH CHAND G. MITTAL VIDE ITA NO.768 & 873/PN/2010. BOTH THE APPEALS ARE DIRECTE D AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-I, NASHIK DATE D 24.03.2010 WHICH, IN TURN, HAS ARISEN FROM AN ORDER DATED 31.12.2009 PAS SED BY THE ASSESSING OFFICER U/S 153B(B) R.W.S. 143(3) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT) PERTAINING TO THE ASSESSMENT YEAR 2008-09. 3. IN THE APPEAL OF THE REVENUE (I.E. ITA NO.873/PN /2010) FOLLOWING GROUNDS OF APPEAL HAVE BEEN RAISED :- 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE THE HON'BLE CIT(A) WAS JUSTIFIED IN DELETING THE ADDITI ON OF RS.16,00,000/- WHICH WERE DECLARED BY THE ASSESSEE DURING THE COURSE OF SEARCH U/S 132(4) OF I.T. ACT, 1961 AND NOT OFFERED FOR TAXATION IN HIS RETUR N OF INCOME. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE HON'BLE CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS.81,26,900/- IN THE HANDS OF SHRI NARESH MITTAL A ND TAXING THE SAME IN THE HANDS OF SHRI SATISHCHAND MITTAL, IGNORING THE FACT THAT THOUGH THE PAPER WAS SEIZED FROM THE RESIDENCE OF SHRI SATISH MITTAL, IT CLEARLY MENTIONED THE NAME OF SHRI NARESH MITTAL AT TOP. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE HON'BLE CIT(A) WHILE DELETING THE ADDITION, AS MENT IONED IN GROUND NO.2 ABOVE, WAS JUSTIFIED IN IGNORING THE FACT THAT THOU GH DOCUMENT IS SEIZED FROM THE RESIDENCE OF SHRI SATISH MITTAL, IT IS IN THE N AME OF SHRI NARESH MITTAL. 4. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE HON'BLE CIT(A) WAS JUSTIFIED IN GRANTING SUBSTANTIA L RELIEF UNDER THIS HEAD WITHOUT TAKING INTO CONSIDERATION THE FACT THAT NO CORROBORATIVE EVIDENCE WAS PRODUCED EITHER BEFORE THE A.O. AT THE TIME OF ASSE SSMENT OR BEFORE THE APPELLATE AUTHORITY I.E. CIT(APPEAL) TO JUSTIFY SUC H DELETION IN FAVOUR OF ASSESSEE AND AGAINST THE REVENUE. 5. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE HON'BLE CIT(A) WAS JUSTIFIED IN IGNORING THE FACT T HAT TOTALITY OF THE CIRCUMSTANCES HAS TO BE TAKEN INTO CONSIDERATION AN D THE COMBINED EFFECT OF ITA NO.768/PN/2010 ITA NO.863/PN/2010 ITA NO.873/PN/2010 ALL THE CIRCUMSTANCES WILL BE DETERMINATIVE OF WHET HER A FACT IN QUESTION HAS BEEN PROVED, AS HAS BEEN HELD IN THE CASE OF CIT VS RAMESHWAR PRASAD BAGLA (1968) 68 ITR 653. 6. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE HON'BLE CIT(A) WAS JUSTIFIED IN IGNORING THE FACT T HAT IT HAS ALSO BEEN HELD BY THE APEX COURT IN THE CASE OF CIT VS. DURGAPRASAD M ORE THAT WHILE SCRUTINIZING THE DOCUMENTS PRODUCED BEFORE THEM THE AUTHORITIES ARE NOT EXPECTED OR REQUIRED TO PUT BLINKERS AND THAT THEY ARE ENTITLED TO LOOK INTO THE SURROUNDING CIRCUMSTANCES TO FIND OUT THE REALTY OF THE RECITALS MADE IN THOSE DOCUMENTS. 7. WHETHER ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE THE HONBLE CIT(A) WAS JUSTIFIED IN GIVING THE BENEFIT OF TELESCOPING WITHOUT APPRECIATING THE FACT THAT THE AMOUNT APPEARING IN THE PAPER NO.27 (PARTY NO. S-I) REPRESENTS UNEXPLAINED EXPENDITURE AND THEREFO RE THE CORRESPONDING AMOUNT WAS NOT AVAILABLE WITH THE ASSESSEE TO GET T ELESCOPING BENEFIT. 4. IN SO FAR AS THE FIRST GROUND OF APPEAL IS CONCE RNED, IT RELATES TO AN ADDITION OF RS.16,00,000/- MADE BY THE ASSESSING OF FICER IN THE ASSESSMENT FINALIZED U/S 153B(B) R.W.S. 143(3) OF THE ACT ON A CCOUNT OF THE FACT THAT THE SAID AMOUNT WAS DECLARED BY THE ASSESSEE AS ADDITIO NAL INCOME IN THE COURSE OF A SEARCH BUT WAS NOT OFFERED IN THE RETURN OF IN COME FILED. THE CIT(A) HAS SINCE DELETED THE ADDITION, AGAINST WHICH REVENUE I S IN APPEAL BEFORE US. 5. IN THIS CONTEXT, IT IS NOTICED THAT IN THE COURS E OF A STATEMENT RECORDED U/S 132(4) OF THE ACT ON 13.12.2007, ASSESSEE HAD D ECLARED ADDITIONAL INCOME OF RS.41,34,123/- WHICH INCLUDED A DECLARATION ON A CCOUNT OF ERRORS AND OMISSIONS OF RS.16,00,000/-. THE ASSESSING OFFICER NOTED THAT THE SAME WAS NOT FOUND OFFERED IN THE RETURN OF INCOME FILED. I T WAS EXPLAINED BY THE ASSESSEE THAT AFTER VERIFICATION OF THE SEIZED RECO RDS, ASSESSEE HAD FOUND VARIOUS DISCREPANCIES, ERRORS AND OMISSIONS AND ACC ORDINGLY FILED A RETURN OF INCOME DECLARING ADDITIONAL INCOME OF RS.1,00,08,88 7/- UNDER THE VARIOUS HEADS BEING GOLD AND OTHER JEWELLERY, CASH, INTERES T RECEIVABLE, COMMODITY TRADING INCOME, ETC.. SINCE ASSESSEE HAD PERUSED A LL THE SEIZED MATERIAL, ASSESSEE OFFERED TO TAX SPECIFIC INCOMES AS AFORESA ID AND ACCORDINGLY THE DECLARATION OF RS.16,00,000/- MADE AT THE TIME OF R ECORDING OF A STATEMENT U/S 132(4) OF THE ACT WAS NOT OFFERED IN THE RETURN OF INCOME. SECONDLY, BEFORE THE ITA NO.768/PN/2010 ITA NO.863/PN/2010 ITA NO.873/PN/2010 CIT(A), ASSESSEE ALSO EXPLAINED THAT EVEN IN THE CO URSE OF ASSESSMENT, ASSESSING OFFICER HAD MADE SEPARATE ADDITIONS ON AC COUNT OF HOUSEHOLD EXPENSES RS.1,00,000/- AND UNEXPLAINED EXPENDITUR E RS.30,00,000/-, ETC. AND THEREFORE A FURTHER ADDITION OF RS.16,00,000/- ON ACCOUNT OF ERRORS AND OMISSIONS, WITHOUT POINTING OUT ANY SPECIFIC ERRORS AND OMISSIONS WAS NOT JUSTIFIED. THE CIT(A) HAS DELETED THE ADDITION BY MAKING THE FOLLOWING DISCUSSION IN PARA 7.2 OF HIS ORDER, WHICH READS A S UNDER :- 7.2 I HAVE CAREFULLY CONSIDERED THE ASSESSMENT ORD ER OF THE A.O. AND SUBMISSION OF THE APPELLANT. DURING THE COURSE OF SEARCH ACTION, THE APPELLANT HAS OFFERED TO TAX AN AMOUNT OF RS.41,34, 123/- ONLY IN CONCLUDING STATEMENT RECORDED U/S.132(4) OF THE ACT. THE APPEL LANT HAS OFFERED TO TAX AN AMOUNT OF RS.16,00,000/- TOWARDS PROBABLE ERRORS, O MISSIONS AND COMMISSIONS IN PRELIMINARY STATEMENT AS IT WAS NOT POSSIBLE FOR HIM TO GO THROUGH THE SUBSTANTIAL QUANTUM OF PAPERS, MATERIAL AND JEWELLERY ETC. FOUND AND SEIZED. AFTER SEARCH ACTION, THE APPELLANT HAS OBTAINED XEROX COPIES OF THE MATERIAL SEIZED ETC. AND AFTER CONSULTATION WITH TA X CONSULTANT AND UNDER THE GUIDANCE OF TAX CONSULTANT AND CHARTERED ACCOUNTANT HAS OFFERED TO TAX AN AMOUNT OF RS.1,00,08,877/- AFTER NOTING ALL THE ERR ORS, OMISSIONS AND COMMISSIONS. THEREFORE, THE A.O. IS NOT JUSTIFIED I N MAKING ADDITION OF RS.16,00,000/- ON ACCOUNT OF DECLARATION OF INCOME DURING THE COURSE OF SEARCH TOWARDS ERRORS, OMISSION AND COMMISSION WITH OUT POINTING-OUT ANY SUCH ERROR, OMISSION AND COMMISSION IN RESPECT OF W HICH HE HAS MADE ADDITION OF RS.16,00,000/-. THE A.O. HAS NOTED ERRO R, OMISSION AND COMMISSION IN RESPECT OF UNDISCLOSED AND UNEXPLAINE D CASH PAYMENT OF RS.30,00,000/- AND ALSO IN RESPECT OF ALLEGED LOW H OUSEHOLD EXPENSES OF RS.1,00,000/- DURING EACH OF THE ASSESSMENT YEARS U NDER APPEAL. IN RESPECT OF THESE ADDITIONS, THE A.O. HAS MADE SEPARATE ADDI TION WITHOUT SETTING-OFF THE ADDITION MADE BY THE A.O. TOWARDS ERRORS, OMISSIONS AND COMMISSIONS OF RS.16,00,000/-. IT IS ALSO NOTICED THAT THE HON'BLE I.T.A.T., PUNE, IN THE RECENT DECISION IN THE CASE OF GANGA PRESSING PVT. LTD. VS . A.C.I.T., CENTRAL CIRCLE-2, PUNE, BEARING ITA NO.1251/PN/05 VIDE ORDER DATED 27 /10/2009 REPORTED AT PUNE CHARTERED ACCOUNTANTS' SOCIETY JOURNAL - FEBRU ARY, 2010 - PAGE NO.12, HAS LAID DOWN THAT EVEN IF ADHOC BUFFER INCOME IS D ECLARED BY THE ASSESSEE IN THE BLOCK PERIOD OF RETURN OF INCOME, THE SAME CANN OT BE TAXED AS UNDISCLOSED INCOME IF REVENUE CANNOT BRING ON RECORD UNDISCLOSE D INCOME TO THE EXTENT THE ADHOC INCOME OFFERED IN RETURN OF INCOME AS BUFFER. IT IS PERTINENT TO NOTE HERE THAT THE APPELLANT, IN THE CASE UNDER APPEAL, HAS N OT OFFER TO TAX THE SAID ADHOC BUFFER INCOME OF RS.16,00,000/- IN RETURN OF INCOME BUT HAS DECLARED THE SAME IN STATEMENT RECORDED DURING SEARCH ACTION . IN VIEW OF THE ABOVE FACTS, THE C.B.D.T. INSTRUCTION BEARING F.NO.286 DA TED 10/03/2003 AND THE RATIO LAID DOWN BY THE DECISION OF HON'BLE I.T.A.T. , PUNE, RELIED ON BY THE APPELLANT IN PARA NO. 7.1 ABOVE, I AM OF THE CONSID ERED VIEW THAT THE A.O. IS NOT JUSTIFIED IN MAKING ADDITION OF RS.16,00,000/-. THE ADDITION OF RS.16,00,000/- IS THEREFORE DELETED. ITA NO.768/PN/2010 ITA NO.863/PN/2010 ITA NO.873/PN/2010 6. BEFORE US, THE LD. CIT-DR HAS SUBMITTED THAT THE ASSESSEE HAD OFFERED THE SAID INCOME IN THE COURSE OF A STATEMENT RECORD ED U/S 132(4) OF THE ACT AND THERE IS NO EVIDENCE TO SHOW THAT THERE WAS ANY PRESSURE ON THE ASSESSEE AT THE TIME OF MAKING SUCH DECLARATION AND THEREFOR E THE SAME WAS LIABLE TO BE ASSESSED IN THE HANDS OF THE ASSESSEE. 7. ON THE OTHER HAND, THE LD. REPRESENTATIVE FOR TH E ASSESSEE SUBMITTED THAT THERE WAS NO SPECIFIC INSTANCE OF ANY OMISSION OR ERROR OR ANY OTHER DISCREPANCY NOTED BY THE ASSESSING OFFICER SO AS TO JUSTIFY SUCH AN ADDITION. IN THIS CONTEXT, HE HAS ALSO REFERRED TO THE CBDT I NSTRUCTION NO.286 DATED 10.03.2003 WHEREIN IT HAS BEEN STATED THAT THE ASSE SSING OFFICER SHOULD RELY ON THE EVIDENCES/MATERIALS GATHERED DURING THE COUR SE OF SEARCH IN ORDER TO FRAME THE RELEVANT ASSESSMENT. IN THE PRESENT CASE , THE IMPUGNED DECLARATION OF RS.16,00,000/- MADE IN THE COURSE OF SEARCH DOES NOT JUSTIFY THE IMPUGNED ADDITION BECAUSE SUBSEQUENT TO THE SEARCH ASSESSEE HAS VERIFIED ALL THE SEIZED MATERIALS AND MADE SPECIFIC DECLARATIONS, WH ICH WERE EVEN HIGHER THAN THE IMPUGNED SUM OFFERED AT THE TIME OF SEARCH. 8. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. IN OUR CONSIDERED OPINION, THE DECLARATION MADE BY THE ASSESSEE IN TH E STATEMENT RECORDED U/S 132(4) OF THE ACT ON ACCOUNT OF RS.16,00,000/- WAS A GENERAL ADMISSION OF ADDITIONAL INCOME. THE SAID AMOUNT WAS DECLARED ON ACCOUNT OF PROBABLE ERRORS AND OMISSIONS WITH REGARD TO THE DOCUMENTS P ERTAINING TO THE ASSESSMENT YEAR 2008-09. IN-FACT, IN AN ANSWER TO QUESTION NO.8 IN THE COURSE OF A STATEMENT RECORDED U/S 132(4) OF THE AC T DATED 13.12.2007 ASSESSEE EXPLAINED THAT BOOKS OF ACCOUNT AND DOCUME NTS ARE VOLUMINOUS, WHOSE VERIFICATION WOULD TAKE SOME TIME AND HE OFFE RED RS.16,00,000/- AS ADDITIONAL INCOME FOR ASSESSMENT YEAR 2008-09 FOR A NY ERROR OR OMISSION IN SUCH DOCUMENTS/BOOKS OF ACCOUNT. QUITE CLEARLY, SU CH A DECLARATION OF ITA NO.768/PN/2010 ITA NO.863/PN/2010 ITA NO.873/PN/2010 ADDITIONAL INCOME WAS QUITE GENERAL. IT HAS BEEN E XPLAINED BEFORE THE LOWER AUTHORITIES WITHOUT CONTROVERSION, THAT ASSESSEE CA RRIED OUT VERIFICATION OF BOOKS OF ACCOUNT AND OTHER DOCUMENTS SEIZED IN THE COURSE OF SEARCH AND THEREAFTER OFFERED SPECIFIC DECLARATIONS FOR VARIOU S DISCREPANCIES WHICH AMOUNTED TO RS.1,00,08,877/-. FOR THIS REASON, ASS ESSEE DID NOT OFFER RS.16,00,000/- IN THE RETURN OF INCOME FILED. IN T HIS BACKGROUND, THE ASSESSING OFFICER WAS REQUIRED TO ESTABLISH, HAVING REGARD TO THE MATERIAL AND EVIDENCE ON RECORD, THAT THE ADDITION OF RS.16,00,000/- WAS FURTHER REQUIRED TO BE MADE OVER AND ABOVE THE AMOUNTS DECLARED BY THE ASSESSEE . IN-FACT, THE ASSESSING OFFICER HAS NOT REFERRED TO ANY INCRIMINATING MATER IAL OR EVIDENCE TO JUSTIFY THE ADDITION OF RS.16,00,000/-. THEREFORE, CONSIDERING THE ENTIRETY OF CIRCUMSTANCES, IN OUR VIEW, THE CIT(A) MADE NO MIST AKE IN DELETING THE ADDITION OF RS.16,00,000/-. THEREFORE, THE ORDER O F THE CIT(A) IS HEREBY AFFIRMED AND THE REVENUE FAILS IN ITS GROUND OF APP EAL NO.1. 9. THE NEXT ISSUE RAISED IN THE APPEAL OF THE REVEN UE IS WITH REGARD TO AN ADDITION OF RS.81,26,900/- AND THE SAME IS AGITATED BEFORE US BY WAY OF GROUNDS OF APPEAL NOS.2 TO 7. 10. THE RELEVANT FACTS IN RELATION TO THE SAID ISSU E CAN BE SUMMARIZED AS FOLLOWS. IN THE COURSE OF SEARCH ACTION, TWO SEIZE D PAPERS STYLED AS PAGE NOS.27 AND 38 WERE FOUND AT THE RESIDENTIAL PREMISE S OF THE ASSESSEE I.E. SATISHCHAND G. MITTAL, AND ON PAGE NO.27, NAME OF A NOTHER FAMILY MEMBER, SHRI NARESHKUMAR G. MITTAL ALSO FOUND NOTED WHEREAS ON PAGE NO.38, NAME OF ASSESSEE WAS FOUND WRITTEN. BOTH THE PAPERS WER E OWNED UP BY THE ASSESSEE, SHRI SATISHCHAND G. MITTAL AND AFTER CONS IDERING THE NOTINGS ON SUCH PAPERS, SHRI SATISHCHAND G. MITTAL OFFERED TO TAX AN AMOUNT OF RS.89,65,875/- IN THE RETURN OF INCOME FILED FOR AS SESSMENT YEAR 2008-09. THE ASSESSING OFFICER DISAGREED WITH THE ASSESSEE AND I NSTEAD CONSIDERED THE ITA NO.768/PN/2010 ITA NO.863/PN/2010 ITA NO.873/PN/2010 AFORESAID SEIZED MATERIAL IN THE HANDS OF THE SHRI NARESHKUMAR G. MITTAL AND IN HIS CASE THE ASSESSING OFFICER WAS DISAGREED WIT H THE AMOUNT OF RS.89,65,875/- COMPUTED AS INCOME BY SHRI SATISHCHA ND G. MITTAL BASED ON SUCH DOCUMENTS. 11. THE CIT(A), ON AN APPEAL PREFERRED BY SHRI NARE SHKUMAR G. MITTAL, AGREED WITH THE ASSESSEE THE SEIZED PAGES NO.27 AND 38 WERE REQUIRED TO BE CONSIDERED IN THE HANDS OF SHRI SATISHCHAND G. MITT AL. THIS ASPECT OF THE CONTROVERSY IS CONTESTED BY THE REVENUE IN THE OTHE R CAPTIONED APPEAL, NAMELY, ITA NO.863/PN/2010 IN THE CASE OF NARESHKUM AR G. MITTAL, WHICH IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF I NCOME TAX (APPEALS)-I, NASHIK DATED 24.03.2010 WHICH, IN TURN, HAS ARISEN FROM AN ORDER DATED 30.12.2009 PASSED BY THE ASSESSING OFFICER U/S 153B (B) R.W.S. 143(3) OF THE ACT PERTAINING TO THE ASSESSMENT YEAR 2008-09. 12. BASED ON HIS ORDER OF EVEN DATE IN THE CASE OF SHRI NARESHKUMAR G. MITTAL, THE CIT(A) CONSIDERED THE SEIZED PAPERS NO. 27, 28 AND 38 OF THE LOOSE PAPER BUNDLE IN THE HANDS OF THE ASSESSEE, SHRI SAT ISHCHAND G. MITTAL. THE CIT(A) OBSERVED THAT ASSESSEE HAD OFFERED AN INCOME OF RS.89,65,875/- BASED ON THE NOTINGS ON PAGE NOS. 38 AND 27. THE C IT(A) NOTED THAT THE AMOUNT OFFERED IN RELATION TO PAGE NO.38 WAS RS.70, 65,000/- AND THAT OFFERED BY THE ASSESSEE IN RELATION TO PAGE NO.27 OF RS.19, 00,875/- (I.E. RS.89,65,875/- MINUS RS.70,65,000/-). ON THIS BASIS, THE CIT(A) NOTED THAT THE BALANCE OF THE INCOME THAT IS REQUIRED TO BE AD DED IN THE HANDS OF THE ASSESSEE BASED ON PAGE NO.27 WAS NOT OFFERED BY THE ASSESSEE. SUCH INCOME WAS COMPUTED AT RS.62,26,025/- (I.E. RS.81,2 6,900/- MINUS RS.19,00,875/-). THE CIT(A) CONSIDERED RS.62,26,02 /- AS INCOME IN THE HANDS OF THE ASSESSEE AFTER PROVIDING AN OPPORTUNITY TO T HE ASSESSEE OF BEING HEARD WITH RESPECT TO SUCH ENHANCEMENT OF INCOME. THE AS SESSEE HAD CONTENDED ITA NO.768/PN/2010 ITA NO.863/PN/2010 ITA NO.873/PN/2010 THAT THERE WAS NO JUSTIFICATION TO CONSIDER AN INCO ME OF RS.62,26,025/- OVER AND ABOVE THE INCOME DECLARED BY THE ASSESSEE BASED ON PAGE NO.27 OF THE SEIZED MATERIAL. THIS CONTENTION OF THE ASSESSEE W AS NOT ACCEPTED BY THE CIT(A). HOWEVER, THE CIT(A) ACCEPTED AN ALTERNATIV E PLEA OF THE ASSESSEE FOR TELESCOPING OF THIS INCOME OF RS.62,26,025/- AGAINS T ADDITION OF UNEXPLAINED PAYMENT TO M/S GANPATI SECURITIES ON 06.11.2007 AND 08.11.2007 OF RS.30,00,000/-, UNEXPLAINED INVESTMENT IN JEWELLERY OF RS.3,75,257/- FOUND IN SEARCH ACTION AND UNEXPLAINED EXPENDITURE OF RS.85, 000/- INCURRED DURING 30.10.2007 TO 07.11.2007 AS THE DATES OF PAYMENT/IN VESTMENT ARE AFTER 08.09.2007. THUS, HE MADE A NET ENHANCEMENT OF INC OME IN THE HANDS OF THE ASSESSEE OF RS.27,65,768/- (I.E. RS.62,26,025/- MINUS RS.30,00,000/- MINUS RS.3,75,257/- MINUS RS.85,000/-). 13. IN THIS CONTEXT, REVENUE IS IN APPEAL BEFORE US IN THE CASE OF SHRI SATISHCHAND G. MITTAL CONTENDING THAT THE CIT(A) ER RED IN CONSIDERING THE INCOME OF RS.81,26,900/- BASED ON PAGE NO.27 IN THE HANDS OF THE ASSESSEE WHEREAS THE ASSESSING OFFICER HAD CONSIDERED IT IN THE HANDS OF SHRI NARESHKUMAR G. MITTAL ON THE GROUND THAT IT PERTAIN ED TO SHRI NARESHKUMAR G. MITTAL. ALTERNATIVELY, IT HAS ALSO BEEN CONTENDED THAT IF AT ALL THE CIT(A) WAS TO CONSIDER PAGE NO.27 IN THE HANDS OF THE ASSESSEE, T HE CIT(A) OUGHT TO HAVE RETAINED AN ADDITION OF RS.81,26,900/- AND THAT THE CIT(A) ERRED IN REDUCING IT TO RS.62,26,025/- AND THEREAFTER ALLOWING THE BENEF IT OF TELESCOPING OF RS.27,65,768/- AGAINST SUCH INCOME. 14. ON THE CONTRARY IN THE CROSS-APPEAL, ASSESSEE C ONTESTS THE FINDING OF THE CIT(A) THAT RS.62,26,025/- WAS LIABLE TO BE ASS ESSED IN THE HANDS OF THE ASSESSEE BASED ON PAGE NO.27 OF SEIZED MATERIAL OVE R AND ABOVE AND AMOUNT ALREADY OFFERED BY THE ASSESSEE IN THE RETUR N OF INCOME ON THIS COUNT. ITA NO.768/PN/2010 ITA NO.863/PN/2010 ITA NO.873/PN/2010 15. IN SO FAR AS THE APPEAL OF THE REVENUE IN THE C ASE OF SHIR NARESHKUMAR G. MITTAL IN ITA NO.863/PN/2010, THE ONLY ISSUE IS AS TO WHETHER THE CIT(A) WAS JUSTIFIED IN HOLDING THAT THE INCOME ARISING FR OM PAGE NO.27 OF SEIZED MATERIAL WAS LIABLE TO IN THE HANDS OF THE ASSESSEE , SHRI SATISHCHAND G. MITTAL OR NOT. 16. IN THE AFORESAID BACKGROUND, THE RIVAL COUNSELS HAVE BEEN HEARD. IN SO FAR AS THE DECISION OF THE CIT(A) TO CONSIDER THE N OTINGS OF PAGE NO.27 IN THE HANDS OF SHRI SATISHCHAND G. MITTAL IS CONCERNED, I N OUR VIEW, THE CIT(A) MADE NO MISTAKE. OSTENSIBLY, SUCH SEIZED MATERIAL WAS FOUND AT THE RESIDENCE OF SHRI SATISHCHAND G. MITTAL AND IT IS A LSO NOT DISPUTED THAT THE SAID DOCUMENT WAS OWNED UP BY SHRI SATISHCHAND G. MITTAL IN THE COURSE OF SEARCH. IT WAS ALSO EXPLAINED BY SHRI NARENSHKUMAR G. MITTAL IN THE COURSE OF THE PROCEEDINGS BEFORE THE ASSESSING OFFICER THAT T HESE PAPERS WERE FOUND AT THE RESIDENTIAL PREMISES OF SHRI SATISHCHAND G. MIT TAL AT JALGAON AND THAT HE WAS NOT AWARE EVEN DURING THE COURSE OF SUCH PROCEE DINGS ABOUT SUCH PAPERS HAVING BEEN FOUND WITH SHRI SATISHCHAND G. MITTAL, AS HE WAS STAYING AT KHANDWA. IT IS ALSO APPEARING FROM RECORD THAT SHR I SATISHCHAND G. MITTAL NOT ONLY OWNED UP THE SEIZED PAPERS BUT ALSO OFFERED TO TAX A SUM OF RS.89,65,875/- BASED ON SUCH SEIZED MATERIAL IN THE RETURN OF INCOME FILED FOR ASSESSMENT YEAR 2008-09. THOUGH, THE REVENUE DIFFE RS WITH THE ASSESSEE ON THE QUANTUM OF AMOUNT ASSESSABLE BASED ON THE SEIZE D PAGES NO.27, 28 AND 38, SO HOWEVER, IN OUR VIEW, THE CIT(A) WAS JUSTIFI ED IN CONSIDERING THE SAID SEIZED MATERIAL IN THE HANDS OF SHRI SATISHCHAND G. MITTAL. THE PAPERS HAVING BEEN FOUND IN THE POSSESSION OF SHRI SATISHCHAND G. MITTAL AND THE SAME HAVING BEEN OWNED BY HIM CONSIDERING THE NOTINGS TH EREON, THE PRESUMPTION IS THAT THE SAID PAPERS BELONG TO SHRI SATISHCHAND G. MITTAL. THUS, ON THIS ASPECT, WE AFFIRM THE ORDER OF THE CIT(A) AND TO TH AT EXTENT THE REVENUE FAILS IN ITS APPEAL IN ITA NO.863/PN/2010 IN THE CASE OF SHRI NARESHKUMAR G. MITTA. ITA NO.768/PN/2010 ITA NO.863/PN/2010 ITA NO.873/PN/2010 17. IN THE RESULT, APPEAL OF THE REVENUE VIDE ITA N O.863/PN/2010 IN THE CASE OF SHRI NARESHKUMAR G. MITTA IS DISMISSED. 18. NOW, WE MAY TAKE-UP THE DISPUTE PERTAINING TO T HE AMOUNT ASSESSABLE IN THE HANDS OF THE ASSESSEE (SHRI SATISHCHAND G. M ITTAL) BASED ON THE SEIZED PAPERS BEARING NOS.27, 28 AND 38. IN THE RETURN OF INCOME, ASSESSEE DECLARED AN INCOME OF RS.89,65,875/- FOR ASSESSMENT YEAR 2008-09. COPIES OF SUCH SEIZED MATERIAL HAVE BEEN PLACED IN THE PAP ER BOOK AT PAGES 42 TO 46. AT THE TIME OF HEARING, THE LD. REPRESENTATIVE HAS TAKEN US THROUGH THE SUBMISSIONS MADE BEFORE THE CIT(A) WHEREIN THE DETA ILS OF THE INCOME OF RS.89,65,875/- HAS BEEN ENUMERATED. TO THE EXTENT OF RS.89,65,875/-, THERE IS NO DISPUTE. THE DISPUTE IS PERTAINING TO AN AMO UNT OF RS.62,26,025/- WHICH AS PER THE CIT(A) IS FURTHER REQUIRED TO BE ASSESSE D IN THE HANDS OF THE ASSESSEE BASED ON THE NOTINGS ON PAGE NO.27 OF THE SEIZED MATERIAL. THE EXPLANATION OF THE ASSESSEE IN THIS REGARD IS THAT THE NOTINGS ON THREE PAGES, NAMELY, 27, 28 AND 38 WERE CUMULATIVELY CONSIDERED BY THE ASSESSEE WHILE DETERMINING THE INCOME OF RS.89,65,875/- AND THAT T HE CIT(A) HAS ERRED IN SEPARATELY CONSIDERING RS.62,26,025/-. 19. ON THE CONTRARY, LD. CIT-DR CONTENDED THAT THE ADDITION OF RS.81,26,900/- WAS MERITED IN ADDITION TO THE DECLA RATION OF RS.89,65,875/- MADE BY THE ASSESSEE. IT WAS POINTED OUT THAT SO F AR AS PAGE NO.27 IS CONCERNED, THE TRANSACTIONS ENUMERATED OF RS.81,26, 900/- CANNOT BE CONSIDERED TO BE THE PART OF THE TOTAL AMOUNT OF RS .89,65,875/- DECLARED BY THE ASSESSEE. ACCORDING TO HIM, THE SAME ARE OVER AND ABOVE THE AMOUNT OF RS.89,65,875/- DECLARED BY THE ASSESSEE. ITA NO.768/PN/2010 ITA NO.863/PN/2010 ITA NO.873/PN/2010 20. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS AND WE HAVE ALSO PERUSED THE NOTINGS MADE ON THE SEIZED PAGE NOS. 38 , 27 AND 28. IN-FACT, THE ENTIRE ADDITION IS BASED ON NOTINGS ON PAGE NO.38 A ND 27. PAGE NO.38 CONTAINS HAND-WRITTEN NOTINGS WHEREAS PAGE NO.27 CO NTAINS TYPE NOTINGS. PAGE NO.38 CONTAINS THE NAME OF SHRI SATISHCHAND G. MITTAL WHEREAS PAGE NO.27 CONTAINS THE NAME OF SHRI NARESHKUMAR G. MITT AL. IN ANY CASE, SINCE THE SEIZED DOCUMENT HAVING OWNED UP BY SHRI SATISHC HAND G. MITTAL, THEY HAVE BEEN CONSIDERED IN THE HANDS OF THE ASSESSEE I TSELF, AN APPROACH, WE HAVE AFFIRMED IN THE EARLIER PARAS. BE THAT THAT A S IT MAY, THE PLEA OF THE ASSESSEE IS THAT SOME OF THE ENTRIES APPEARING IN P AGE NO.27 ARE REPLICATION OF THE NOTINGS OF PAGE NO.38, WHICH ARE IN THE HAND -WRITTEN FORM. IN THE COURSE OF HEARING BEFORE US, ASSESSEE HAS SOUGHT TO DEMONSTRATE THAT SOME OF THE NOTINGS OF PAGE NO.27 ARE OF SIMILAR AMOUNT AND PERTAIN TO THE SAME ENTITIES AS NOTED ON PAGE NO.38. THE SUM AND SUBST ANCE OF THE PLEA, BEFORE US, IS THAT THE EFFECT OF SUCH DUPLICATE ENTRIES HA S BEEN REMOVED AND THE INCOME OF RS.89,65,875/- HAS BEEN OFFERED, BASED ON SUCH SEIZED MATERIAL. IN OUR CONSIDERED OPINION, THE EXPLANATION RENDERED BY THE ASSESSEE IS RATHER NEBULOUS AND THERE IS NO MATERIAL TO SUPPORT THE SA ME. THE DOCUMENTS HAVE BEEN FOUND IN POSSESSION OF ASSESSEE AND ITS CONTEN TS ARE IN THE SPECIALIZED KNOWLEDGE OF THE ASSESSEE ONLY AND THEREFORE THE ON US IS ENTIRELY ON THE ASSESSEE TO ESTABLISH WITH CORROBORATIVE EVIDENCE T HAT THERE ARE DUPLICATE ENTRIES AND NOT SEPARATE TRANSACTIONS. THEREFORE, IN OUR VIEW, THE INCOME ENHANCED BY THE CIT(A) BASED ON SUCH DOCUMENTS OF R S.62,26,025/- IS QUITE JUSTIFIED. 21. IN SO FAR AS THE ACTION OF THE CIT(A) IN ALLOWI NG TELESCOPING AGAINST SUC ADDITION MADE IS CONCERNED THE SAME, IN OUR VIEW, H AS BEEN APPROPRIATELY ALLOWED BY THE CIT(A). THE CIT(A) HAS MADE A CATEG ORICAL FINDING THAT THE ADDITIONS MADE IN RESPECT OF UNEXPLAINED PAYMENT MA DE TO M/S GANPATI ITA NO.768/PN/2010 ITA NO.863/PN/2010 ITA NO.873/PN/2010 SECURITIES ON 06.11.2007 AND 08.11.2007 OF RS.30,00 ,000/-; UNEXPLAINED INVESTMENT IN JEWELLERY OF RS.3,75,257/- FOUND IN S EARCH ACTION AND UNEXPLAINED EXPENDITURE OF RS.85,000/- INCURRED DUR ING 30.10.2007 TO 07.11.2007 ARE AFTER 08.09.2007 AND THEREFORE THE S AME CAN BE UNDERSTOOD AS BEING SUBSUMED AGAINST INCOME OF RS.62,26,025/- AND THEREFORE THE NET INCOME OF RS.27,65,768/- SUSTAINED BY THE CIT(A) ON THIS ASPECT IS HEREBY AFFIRMED. 22. IN THE RESULT, APPEAL OF THE ASSESSEE IN THE CA SE OF SHRI SATISHCHAND G. MITTAL IN ITA NO.768/PN/2010 AND THAT OF THE REVENU E IN ITA NO.873/PN/2010 ARE DISMISSED. 23. RESULTANTLY, ALL THE CAPTIONED THREE APPEALS AR E DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST DECEMBER, 2014. SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 31 ST DECEMBER, 2014. SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-I, NASHIK; 4) THE CIT-I, NASHIK; 5) THE DR B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// ASSISTANT REGISTRAR I.T.A.T., PUNE