ACIT, Cir. 3(1), Dhule, Dhule V. Anil Mohanlal Agarwal, Dhule

ITA 801/PUN/2007

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 85332 (ITAT-PUNE)
• Duration Of Justice: 7 year(s) 6 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 15-12-2014
• Assessment Year: misc
• Appeal Filed On: 01-06-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B C MALAKAR
• Section: 68; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE MS. SUSHMA CHOWLA, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO.801/PN/2007 (BLOCK PERIOD: 1997-98 TO 2001-02 AND 01.04.2002 TO 17.09.2002) THE JOINT COMMISSIONER OF INCOME TAX, RANGE 3, DHULE . APPELLANT VS. SHRI ANIL MOHANLAL AGRAWAL, 3, SHIV SHANKAR COLONY, CHITOR RD., DHULE 424001 PAN: ADQPA1053J . RESPONDENT APPELLANT BY : SHRI B.C. MALAKAR RESPONDENT BY : SHRI NIKHIL PATHAK DATE OF HEARING : 15-12-2014 DATE OF PRONOUNCEMENT : 30-12-2014 ORDER PER SUSHMA CHOWLA, JM: THIS APPEAL FILED BY THE REVENUE IS AGAINST THE ORDER OF C IT(A)-I, NASHIK DATED 30.03.2007 RELATING TO BLOCK PERIOD 1997-98 TO 2001-02 AND 01.04.2002 TO 17.09.2002 AGAINST ORDER PASSED UNDER SECTION 158BC(C) OF THE INCOME-TAX ACT. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRED IN DELETING THE ADDITION OF RS.20 LACS ON ACCOUNT OF THE ALLEGED FDS MADE BY THE ASSESSEE AND THE INTEREST THEREOF OF RS.81,280/- ADDED IN THE HANDS OF ASSESSEE ON PROTECTIV E BASIS EVEN WHEN THE SUBSTANTIVE ADDITION IN THE HANDS OF C HINTAMANI NAGRI SAHAKARI PATSANSTHA HAS ALSO BEEN DELETED. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRED IN NOT CONSIDERING THE CLEAR NEXUS BETWE EN THE LOAN ITA NO.801/PN/2007 SHRI ANIL MOHANLAL AGRAWAL 2 TAKEN BY THE ASSESSEE AND THE FDS MADE BY THE ASSES SEE IN VARIOUS NAMES. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRED IN NOT CONSIDERING THE FACT THAT THE AS SESSEE HIMSELF HAD STATED BEFORE ADIT(INV) THAT HE HAD TAKEN THE LOA N IN THE FICTITIOUS NAME AGAINST THE FDS OF RS.20 LACS KEPT IN VARIOUS NAMES AND THE ASSESSEE DID NOT PROVE HIS CLAIM THAT THE SAID DEPOSITS WERE REPAID TO ONE MR.RUPESH JAIN . 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT ERRED IN NOT CONSIDERING THE FACT THAT THE ASSE SSEE'S CLAIM THAT THE DEPOSITS BELONG TO MR. MUKESH S. JAIN WERE CATEGOR ICALLY DENIED BY MR. MUKESH JAIN IN HIS STATEMENT RECORDED BEFORE ADIT(INV) NASHIK AND THUS THE ASSESSEE COULD NOT CONC LUSIVELY PROVE THAT THE DEPOSITS BELONGED EITHER TO SHRI MUKES H S. JAIN OR THE ALLEGED PERSONS IN WHOSE NAMES THE SAID FDS WERE PREP ARED 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRED THE APPLYING THE DECISION OF HON'BLE ITA T, PUNE IN THE CASE OF MAHAVIR NAGRI SAH. PATSANSTHA, KOLHAPUR, ITA (S S) NO 2/PN/97,DTD. 18/02/2000 WHEN THE FACTS IN THE RELEVANT CASE ARE NOT EXACTLY SIMILAR TO THOSE IN THE ASSESSEES CASE. 6. ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE, THE CIT-(A) HAS ERRED IN DIRECTING THE A.O. TO FURTHER INVESTIGATE THE MATTER AS SUCH DIRECTIONS AMOUNT TO SETTING ASIDE THE ISSUE TO THE FILE OF A.O., WHICH IS BEYOND THE POWERS OF CIT-(A). 7. ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN DIRECTING THE A.O. TO FURTHER THE INVESTIGAT E THE MATTER AS SUCH DIRECTIONS ARE CONTRARY TO THE PROVISIONS OF SE CTION 68, AS PER WHICH THE ONUS IS UPON THE ASSESSEE TO PROVE HIS CL AIM TO THE SATISFACTION OF THE A.O. WHICH THE ASSESSEE HAS NOT DONE AND NOT VICE VERSA AS ASSUMED BY THE CIT-(A) 3. THOUGH THE REVENUE HAS RAISED SEVERAL GROUNDS OF A PPEAL BUT THE ISSUE RAISED IN THE PRESENT APPEAL IS AGAINST THE DELE TION OF ADDITION OF RS.20 LAKHS MADE ON ACCOUNT OF THE ALLEGED FDS IN THE NAME OF ASSESSEE AND INTEREST THEREOF OF RS.81,280/- ADD ED IN THE HANDS OF THE ASSESSEE ON PROTECTIVE BASIS. 4. THE BRIEF FACTS OF THE CASE ARE THAT, SEARCH ACTION UN DER SECTION 132 OF THE ACT WAS CONDUCTED AT CHINTAMANI NAGRI SAHAKARI PAT PE DHI, MARYADIT, DHULE ON 17.09.2002. THE ASSESSEE WAS THE GENE RAL ITA NO.801/PN/2007 SHRI ANIL MOHANLAL AGRAWAL 3 MANAGER OF THE SAID CREDIT COOPERATIVE SOCIETY AND WARRA NT OF AUTHORIZATION UNDER SECTION 132 OF THE ACT WAS ALSO ISSUE D AGAINST HIM, BUT THE SEARCH WAS RESTRICTED TO OFFICE PREMISES OF THE COOPER ATIVE SOCIETY AT MALEGAON ROAD, DHULE. DURING THE COURSE OF THE SEARCH, CERTAIN DEPOSITS WITH THE SAID CREDIT COOPERATIVE SOCIETY TOTALING ABOUT RS.3 LAKHS WERE FOUND. THE ASSESSING OFFICER ISSUED NOTICE T O THE ASSESSEE UNDER SECTION 158BC OF THE ACT. THE ASSESSEE FILED RETURN OF INCOME DECLARING NIL INCOME FOR THE BLOCK PERIOD. THE FIRST O BJECTION RAISED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER WAS A GAINST THE ISSUE OF NOTICE UNDER SECTION 158BC OF THE ACT WHICH WAS REJECTED BY THE ASSESSING OFFICER AS THE WARRANT OF SEARCH WAS ISSUED IN THE NAME OF ASSESSEE MANAGER OF THE CREDIT COOPERATIVE SOCIETY. T HE ASSESSEE IS NOT IN APPEAL AGAINST THE INITIATION OF THE PROCEEDINGS UND ER SECTION 158BC OF THE ACT. FURTHER, DURING THE COURSE OF SEARCH OPERATION, STATEMENT OF THE ASSESSEE WAS RECORDED IN WHICH, HE STA TED THAT HE HAD TAKEN LOAN IN THE NAME OF SHRI RAKESH S. JAIN ON 31. 03.2000 FOR INVESTING IN PLOT OF LAND. THE SAID LOAN AS PER THE ASSESS EE WAS REPAID WITHIN 3 DAYS. THE ASSESSEE FURTHER SUBMITTED THAT THE LOAN WAS TAKEN AGAINST THE FDS OF RS.20 LAKHS ACTUALLY BELONGING T O SHRI MUKESH JAIN. THE STATEMENT OF SHRI MUKESH JAIN WAS RECO RDED ON 11.11.2002 IN WHICH, HE DENIED HAVING MADE ANY FDS. THE AS SESSEE WAS THUS, SHOW CAUSED TO EXPLAIN AS TO WHY AMOUNT REPR ESENTING INVESTMENT OF RS.20 LAKHS IN VARIOUS NAMES ON 28.03.2000 SH OULD NOT BE TAXED IN HIS HANDS AS UNDISCLOSED INCOME. THE ASSESSE E, IN REPLY, STATED THAT THE DEPOSIT OF RS.20 LAKHS KEPT IN VARIOUS N AMES DID NOT BELONG TO HIM AND HE ALSO STATED THAT HE WAS NOT A PER SON OF MEANS TO OWN SUCH AMOUNTS. IN RESPECT OF THE UTILIZATION OF THOS E FDS FOR THE PURPOSES OF TAKING LOAN, IT WAS EXPLAINED BY THE ASSESSEE THAT SINCE ITA NO.801/PN/2007 SHRI ANIL MOHANLAL AGRAWAL 4 THE TRANSACTION HAD NOT MATERIALIZE, THE SAID LOAN WAS REP AID WITHIN 3 DAYS. IN RESPECT OF THE INFORMATION WRITTEN ON THE LOAN A PPLICATION, IT WAS EXPLAINED BY THE ASSESSEE THAT AS GENERAL MANAGER OF THE CREDIT COOPERATIVE SOCIETY, THE SAID INFORMATION WAS AVAILABLE WITH H IM AND WAS USED. HOWEVER, THE SAID DEPOSITS WERE REPAID THROUG H CHEQUE NO.21159, DATED 04.08.2000 DRAWN ON DHULE VIKAS SAHAKARI BANK LTD., DHULE AND THE CHEQUE WAS ISSUED BY THE CREDIT COOP ERATIVE SOCIETY IN THE NAME OF SHRI RUPESH JAIN WHO IS SON OF SHR I MUKESH JAIN. THE ASSESSING OFFICER REJECTING THE EXPLANATION OF THE ASSESSEE VIDE PARA 10 OBSERVED AS UNDER:- 10. THE F. DS. WERE KEPT BY THE ASSESSEE AND HENCE I T IS UNBELIEVABLE THAT THE ASSESSEE WAS NOT AWARE OF SUCH F. DS. ASSESSEE CANNOT EXPECT THE DEPT TO CONFRONT THE ASS ESSEE WITH THE INFORMATION IN ITS POSSESSION WITHOUT FIRST KNOWING A LL TRUTH AND COMPLETE DETAILS ON THE BASIS OF WHICH ORIGINAL RETURN S ARE FURNISHED, IF SUCH DETAILS ARE NOT AVAILABLE IN THE ST ATEMENTS FURNISHED WITH SUCH RETURNS. HENCE IT WAS PERFECTLY IN ORDER TO CALL FOR INFORMATION AS MENTIONED IN PARA 3 AND PARA 4 O F THIS LETTER DATED 10/9/2004. IN NO CASE CALLING OF SAID INFORMATIO N CAN BE CONSTRUED TO BE IN THE NATURE OF MAKING ROVING ENQU IRY AS WRONGLY ASSUMED BY THE ASSESSEE. IT WILL NOT BE OUT OF PLACE T O MENTION THAT THE ASSESSEE HAS PREPARED THE STATEMENTS AS ON 31ST MARCH OF EACH FINANCIAL YEAR COMPRISED IN THE BLOCK PERIOD IN WHICH CASH HAS BEEN BUILT UP IN ORDER TO EXPLAIN INVESTMENT IN F.DS. FOUND DURING SEARCH AND INVESTMENT IN OTHER ASSETS MENTION ED IN THE BALANCE SHEETS. THE INCOME TAX ACT DOES NOT PREVENT THE DEPT FROM MAKING FURTHER ENQUIRIES WHICH EMANATE FROM SU BMISSIONS MADE BY THE ASSESSEE IN ORDER TO EXPLAIN ISSUES / E NTRIES ETC. FOUND DURING THE COURSE OF SEARCH. IT IS TRUE THAT N O ENQUIRY CAN BE MADE ABOUT EVIDENCES WHICH ARE NOT FOUND DURING THE COURSE OF SEARCH. HOWEVER, IF ASSESSEE MAKES CERTAIN CLAIMS IN ORDER TO EXPLAIN THE EVIDENCES FOUND DURING SEARCH, IT WOULD B E PERFECTLY WITHIN COMPETENCE OF THE DEPT TO GO BEHIND SUCH CLAIM S AND ASK THE ASSESSEE TO FURNISH PROOF IN RESPECT OF SUCH CL AIMS. IN THE INSTANT CASE, IF ASSESSEE HAS BUILT UP CASH IN ORDER TO EXPLAIN DEPOSITS AND OTHER ASSETS AND IN PROCESS HAS CLAIMED HOUSE HOLD EXPENSES, WHICH APPEAR TO BE TOO LOW, IT WAS PERFECTL Y WITHIN COMPETENCE OF THE DEPT TO GO INTO DETAILS OR ASK THE ASSESSEE TO FURNISH DETAILS AS CALLED BY ORDER SHEET ENTRY DATED 1 7/02004 AS NO SUCH CASH IN HAND WOULD HAVE BEEN KEPT BY ANY PRU DENT PERSON. A PRUDENT PERSON WOULD HAVE KEPT HIS SAVINGS IN BANK'S ACCOUNT. THUS, ASSESSEE'S SAY THAT ROVING ENQUIRIES ARE MADE IS THEREFORE, NOT CORRECT. ITA NO.801/PN/2007 SHRI ANIL MOHANLAL AGRAWAL 5 5. THE ASSESSING OFFICER WAS OF THE VIEW THAT THE ADDITION WOULD BE CALLED FOR UNDER SECTION 68 OF THE ACT IN THE HANDS OF THE CREDIT COOPERATIVE SOCIETY AS CREDITS ON ACCOUNT OF DEPOSITS IN THE ALLEGED NAMES APPEARED IN ITS BOOKS OF ACCOUNTS. FURTHER, IT WAS OBSERVED BY THE ASSESSING OFFICER VIDE PARA 16 THAT MOREOVER, THE ASSESSEE IS ONLY AN EMPLOYEE WITH CHINTAMANI NAGRI SAHAKARI PAT PEDHI, MARYADIT, DHULE AND HAS NO CREDITABILITY TO INVEST HUGE AMOUNT OF RS.20,00,000/-. MOREOVER, THESE ARE APPEARING IN THE BOOKS OF CHINTA MANI NAGRI SAHAKARI PAT PEDHI, MARYADIT, DHULE. IN THE INSTANT CA SE SHRI. ANIL AGRAWAL HAS DENIED HAVING KEPT ANY SUCH F.DS IN ALLEGE D NAMES. FURTHER FINDING OF THE ASSESSING OFFICER VIDE PARAS 20 AND 2 1 WAS AS UNDER:- 20. THUS, NO CONCLUSIVE PROOF HAS BEEN PRODUCED IN S UPPORT OF CLAIM THAT THE SAID F.DS BELONGED TO SHRI. MUKESH JAIN OR TO THE ALLEGED PERSONS IN WHOSE NAMES THE F.DS WERE PREPARED. 21. IT WILL NOT BE OUT OF PLACE TO MENTION THAT IT IS EASY FOR A BANK MANAGER TO WRITE CERTAIN INSTRUMENTS AS F.DS IN FICTIT IOUS NAMES, INTRODUCE THE CASH UNDER THE GUISE OF SUCH FICTITIOU S F.DS, WITHDRAW THE AMOUNT AS LOAN TO BE UTILISED OSTENSIBLY AND THEN ON REPAYMENT OF LOAN WITHDRAWN THE FUNDS BY SHOWING M ATURITY OF F.D. THUS, THE WHOLE PROCEDURE APPEARS TO HAVE BEEN FOLLOWED BY ASSESSEE UNDER THE INSTRUCTION OF HIS MASTERS AS HE HIMSELF IS ONLY AN EMPLOYEE OF THE PAT PEDHI AND APPEARS TO BE N OT A MAN OF MEANS. EVEN THE STORY THAT HE HAD RAISED LOAN ALLEGEDLY FOR PURCHASE OF LAND ALSO IS NOT BELIEVABLE. IT APPEARS TH AT HIS POSITION AS BANK MANAGER HAS BEEN EXPLOITED TO LAUND ER UNDISCLOSED INCOME OF RS.20,00,000/- BY FIRST INTRODUCIN G RS.20,00,000/- AS FIXED DEPOSITS IN NAMES OF NON EXISTE NT PERSONS AND LATER ON WITHDRAWING RS.18,00,000/- IN FICT ITIOUS NAME OF SHRI. RAKESH S. JAIN. IN VIEW OF ALL ABOVE FAC TS AND SUBMISSIONS AND PARTICULARLY IN VIEW OF FACT THAT S HRI. ANIL AGRAWAL IS NOT A MAN OF MEAN AND LACKS CREDIBILITY, N O ADDITION OF RS.20,00,000/- IS MADE IN HIS CASE ON SUBSTANTIVE BASIS . THE STORY OF TAKING LOAN OF RS.18,00,000/- FOR ALLEGED PURCHASE O F PLOT, WITHOUT PRODUCING ANY PROOF IN SUPPORT OF SUCH CLAIM, CAN AT BEST BE SAID TO BE IN THE NATURE OF 'MOUSE SOLICITING WITN ESS OF CAT'. THE INVESTMENT OF RS.20,00,000/- ON 28/03/2000 IN VARIOUS ALLEGED NAMES WILL BE CONSIDERED EITHER IN THE CASE OF CHINT AMANI NAGRI SAHAKARI PAT PEDHI, MARYADIT, DHULE OR IN THE HANDS OF H IS MASTERS. ITA NO.801/PN/2007 SHRI ANIL MOHANLAL AGRAWAL 6 6. THE ASSESSING OFFICER VIDE PARA 22 THUS, OBSERVED THAT THE INVESTMENT OF RS.20 LAKHS IN FD DATED 28.03.2000 WAS TO BE TREATED AS UNDISCLOSED INCOME OF THE ASSESSEE ON PROTECTIVE BASIS . FURTHER, INTEREST ON SUCH FDS OF RS.81,280/- WAS ALSO ADDED AS TH E INCOME OF THE ASSESSEE AGAIN ON PROTECTIVE BASIS. 7. THE CIT(A) DELETED THE SAID ADDITION IN VIEW OF THE FINDINGS OF THE ASSESSING OFFICER IN PARA 21 WHICH IS REPRODUCED IN PARAS HEREINABOVE. FURTHER, THE CIT(A) OBSERVED THAT THE ADDIT ION OF THE ALLEGED UNEXPLAINED FDS IN THE HANDS OF CHINTAMANI CREDIT COOPERATIVE SOCIETY WAS DELETED VIDE ORDER DATED 29.12.20 06 AND THE ASSESSING OFFICER WAS DIRECTED TO INITIATE APPROPRIATE PROCE EDINGS IN THE CASES OF CONCERNED PERSONS WHO HAD MADE THE INVES TMENTS IN SUCH FICTITIOUS DEPOSITS. THE FACT OF REPAYMENT THROUGH CH EQUE ON 04.08.2000 WAS ALSO NOTED BY THE CIT(A) AND THE ASSESSING OFFICER WAS DIRECTED TO INVESTIGATE AND FIND OUT THE PERSON WHO HAD INVESTED THE SAID SUM OF RS.20 LAKHS IN THE SAID FDS. THE PROTECTIVE ADDITION MA DE IN THE HANDS OF THE ASSESSEE WAS THUS, DELETED. 8. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVE NUE PLACING RELIANCE ON THE ORDER OF ASSESSING OFFICER, POINTED O UT IN THE CASES WHERE THE ASSESSEE HAD ADMITTED THAT IT HAD MAD E THE AFORESAID NOTINGS ON THE PAGE FOR AVAILING THE LOANS, THERE WAS NO M ERIT IN THE ORDER OF CIT(A) IN DELETING THE SAID ADDITION. 9. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSES SEE POINTED OUT THAT THE ASSESSEE WAS THE GENERAL MANAGER OF THE CREDIT COOPERATIVE SOCIETY. SURVEY CARRIED OUT ON THE SAID SOC IETY ON 17.09.2002 WAS CONVERTED INTO SEARCH AND VARIOUS DEPOSIT S TOTALING RS.68 LAKHS ON PEAK BASIS WAS OFFERED AS ADDITIONAL INCOME B Y THE ITA NO.801/PN/2007 SHRI ANIL MOHANLAL AGRAWAL 7 SAID CREDIT COOPERATIVE SOCIETY. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE FURTHER POINTED OUT THA T 20 DEPOSITS OF RS.1 LAKH EACH IN VARIOUS FICTITIOUS NAMES WERE USED BY THE ASSESSEE BY WAY OF SECURITY AGAINST LOAN APPLICATION MADE BY THE A SSESSEE. IT WAS POINTED OUT BY THE LEARNED AUTHORIZED REPRESENTATIV E FOR THE ASSESSEE THAT DURING SEARCH PROCEEDINGS, THE ASSESSEE CATEGORICALLY SAID THAT THE FDS DO NOT BELONG TO HIM. OUR ATTENTION W AS DRAWN TO THE STATEMENT OF THE ASSESSEE PLACED AT PAGE 8 OF THE PAPER BOOK. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE FURTH ER DREW OUR ATTENTION TO THE COPIES OF THE FD RECEIPTS PLACED AT PA GES 25 TO 30 OF THE PAPER BOOK UNDER WHICH, ALL THE FDS ISSUED ON 28.03.20 00 WERE ENCASHED ON 04.08.2000 AND THE PROCEEDS WERE GIVEN BY WAY OF A SINGLE CHEQUE NO.21159 DATED 04.08.2000. THE LEARNED AUTH ORIZED REPRESENTATIVE FOR THE ASSESSEE DREW OUR ATTENTION TO THE BANK STATEMENT OF THE CREDIT COOPERATIVE SOCIETY IN DHULE VIKAS SAHAKARI BANK LTD., DHULE, IN WHICH THERE WAS AN ENTRY OF THE PAYME NT OF RS.20,81,280/- VIDE CHEQUE NO.21159 TO ONE MR. JAIN, THE CO PY OF BANK STATEMENT IS PLACED AT PAGE 93 OF THE PAPER BOOK . IT WAS POINTED OUT BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE AS SESSEE THAT THE ONLY LINKAGE WAS THAT THE ASSESSEE HAD TAKEN LOAN BY S HOWING THE SAID FDS AS SECURITY BUT IT CANNOT BE ALLEGED THAT THE SAID F DS BELONGS TO THE ASSESSEE. 10. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED TH E RECORD. THE ADDITION IN THE HANDS OF THE ASSESSEE WAS MADE ON P ROTECTIVE BASIS BY THE ASSESSING OFFICER IN RELATION TO THE VALUE OF TH E FDS TOTALING RS.20 LAKHS AND THE INTEREST DUE ON THE SAID FDS TOTALING RS.81,280/-. SEARCH PROCEEDINGS WERE CARRIED OUT AT TH E BUSINESS PREMISES OF THE CREDIT COOPERATIVE SOCIETY OF WHICH, THE AS SESSEE WAS ITA NO.801/PN/2007 SHRI ANIL MOHANLAL AGRAWAL 8 THE GENERAL MANAGER. THE OFFICE OF THE GENERAL MANAGER WA S ALSO SEARCHED DURING THE SAID PROCEEDINGS CARRIED OUT ON 17.0 9.2002. DURING THE COURSE OF SEARCH, FEW FDS TOTALING ABOUT RS.3 LA KHS WERE FOUND FROM THE POSSESSION OF THE ASSESSEE FOR WHICH, THE A SSESSEE GAVE THE EXPLANATION AND NO ADDITION WAS MADE IN THE HANDS OF THE ASSESSEE. HOWEVER, LOAN PAPERS RELATING TO THE PURCHASE OF ONE PLOT OF LAND WERE FOUND FROM THE POSSESSION OF THE ASSESSEE. TH E ASSESSEE EXPLAINED THAT HE HAD TAKEN LOAN IN THE NAME OF RAKESH S . JAIN ON 31.03.2000 FOR INVESTING IN THE PLOT OF LAND, HOWEVER, THE SAID LOAN WAS REPAID WITHIN 3 DAYS AND ON THE SAID LOAN PAPERS BY WAY OF SECURITY DETAILS OF FDS TOTALING RS.20 LAKHS WERE MENTIONED. THE ASS ESSEE EXPLAINED THAT THE SAID FDS BELONG TO MR. MUKESH S. JAIN, WHO IN TURN DENIED HAVING MADE ANY SUCH INVESTMENT IN THE FDS. THE ASSESSEE FURTHER EXPLAINED THAT IT WAS OUT OF HIS CAPACITY TO MAKE INVESTMENT TO THE EXTENT OF RS.20 LAKHS AS HE WAS NOT A PERSON OF MEA NS TO OWN SUCH AMOUNTS. THOUGH THE ASSESSEE EXPLAINED THAT HE HAD WRITT EN THE DETAILS OF 20 FDS OF RS.1 LAKH EACH ON THE LOAN APPLICATION FORM, BUT THAT FDS DID NOT BELONG TO HIM, NOR THE SAID FDS WERE IN HIS NAME. THE DETAILS / INFORMATION OF THE FDS WERE AVAILABLE WITH HIM B EING THE BANK MANAGER AND THE SAID DETAILS WERE CLAIMED BY THE AS SESSEE TO HAVE BEEN USED FOR AVAILING THE LOAN WHICH IN TURN, WAS RE PAID WITHIN 3 DAYS. 11. ANOTHER CLARIFICATION GIVEN BY THE ASSESSEE WAS THAT THE SAID DEPOSITS WERE REPAID VIDE CHEQUE NO.21159, DATED 04.08.2000 AND W AS ISSUED IN THE NAME OF ONE MR.JAIN. THE ASSESSEE HAS ALSO PLACED ON RECORD THE BANK STATEMENT OF DHULE VIKAS SAHAKARI BANK LTD., WHICH REFLECTS THE DEBIT ENTRY OF CHEQUE NO.21159 TOTALING RS.20 ,81,280/- WHICH IN TURN, HAS BEEN CLEARED IN THE NAME OF ONE MR.JAIN . IN THE ITA NO.801/PN/2007 SHRI ANIL MOHANLAL AGRAWAL 9 ENTIRETY OF THE ABOVE FACTS AND CIRCUMSTANCES, WE FIND NO MERIT IN THE ORDER OF ASSESSING OFFICER IN MAKING AN ADDITION OF RS.20 LAKHS ON ACCOUNT OF THE INVESTMENT IN FDS AND INTEREST OF RS.81,280 /- BEING RELATABLE TO SUCH FDS AS INCOME OF THE ASSESSEE, WHERE T HE DETAILS OF THE FDS CLEARLY REFLECT THAT THE SAID FDS WERE NOT IN T HE NAME OF ASSESSEE AND EVEN THE ENCASHMENT OF THE SAID FDS WAS BY WAY OF CHEQUE DRAWN ON DHULE VIKAS SAHAKARI BANK LTD., WHICH C LEARLY REFLECTED THAT ON ENCASHMENT OF FDS VIDE CHEQUE NO.21159 , DATED 04.08.2000 WAS ISSUED TO ONE MR.JAIN FOR RS.20,81,280/-. TH E ASSESSING OFFICER HAS FAILED TO MAKE ENQUIRIES TO ESTABLISH ITS CASE. IN VIEW OF THE ABOVE SAID EVIDENCE BEING AVAILABLE ON RECORD, NO PRESUMPTION CAN BE DRAWN THAT THE SAID FDS BELONGS TO THE ASSESSEE, MERELY BECAUSE THE INFORMATION IN RELATION TO THE SAID FD S WAS MIS- USED BY THE ASSESSEE WHILE OBTAINING LOAN FOR THE PURPOS E OF INVESTMENT IN LAND. MERELY BECAUSE THE DETAILS OF THE FDS I.E. 20 FDS OF RS.1 LAKH EACH WERE MENTIONED BY THE ASSESSEE ON THE LOAN FORM FOR THE PURPOSE OF INVESTMENT IN LAND DOES NOT ESTABLISH THE CASE OF THE ASSESSING OFFICER THAT THE SAID FDS BELONG TO THE ASSESSE E. THE ASSESSEE HAS DISCHARGED THE ONUS CAST UPON HIM TO PRO VE THAT THE SAID FDS TOTALING RS.20 LAKHS DO NOT BELONG TO HIM AND SHOULD NOT BE TAXED IN HIS HANDS AS UNDISCLOSED INCOME. THE ASSESSING OFFICER W HILE DECIDING THE ISSUE VIDE PARA 21 HAS ACKNOWLEDGED THAT TH E ASSESSEE WAS NOT A MAN OF MEANS. VIDE PARA 16 OF THE ASSESSMENT ORDER, THE FINDING OF THE ASSESSING OFFICER WAS, MOREOVER, THE ASSESSEE IS ONLY AN EMPLOYEE OF CHINTAMANI NAGRI SAHAKARI PAT PEDHI, MARYADIT, DH ULE AND HAS NO CREDITABILITY TO INVEST HUGE AMOUNT OF RS.20,00 ,000/-. MOREOVER, THESE ARE APPEARING IN THE BOOKS OF CHINTAMANI NAGRI SAHAKARI PAT PEDHI, MARYADIT, DHULE. IN VIEW OF THE ABOVE SAID ITA NO.801/PN/2007 SHRI ANIL MOHANLAL AGRAWAL 10 FINDINGS OF THE ASSESSING OFFICER, WE FIND MERIT IN THE ORDER OF CIT(A) IN DELETING THE ADDITION OF RS.20 LAKHS AND ALSO THE ADDITION OF RS.81,280/-. UPHOLDING THE SAME, WE DISMISS THE GROUNDS OF APPEAL RAISED BY THE REVENUE. 12. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF DECEMBER, 2014. SD/- SD/- (R.K. PANDA) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 30 TH DECEMBER, 2014. GCVSR COPY OF THE ORDER IS FORWARDED TO : - 1) THE DEPARTMENT; 2) THE ASSESSEE; 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