DCIT, Mohali V. M/s Progressive Promoters & Developers, Mohali

ITA 817/CHANDI/2013

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 2464 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 5 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 02-12-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 05-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Unexplained expenditure; Principle of natural justice; Difference of opinion
• Section: 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS. RANO JAIN, ACCOUNTANT MEMBER ITA NO.1351/CHD/2012 (ASSESSMENT YEAR : 2009-10) RKM HOUSING LTD., VS. THE D.C.I.T., BEHIND CHD. ENGG. COLLEGE, CIRCLE 6(1), SECTOR 112, LANDRAN, MOHALI. MOHALI. PAN: AADCR5348A ITA NO.1352/CHD/2012 (ASSESSMENT YEAR : 2009-10) PROGRESSIVE PROMOTERS & DEVELOPERS, VS. THE D.C.I.T., BEHIND CHD. ENGG. COLLEGE, CIRCLE 6(1), SECTOR 112, LANDRAN, MOHALI. MOHALI. PAN: AAIFP8869Q ITA NO.816/CHD/2013 (ASSESSMENT YEAR : 2009-10) THE D.C.I.T., VS. RKM HOUSING LTD., CIRCLE 6(1), BEHIND CHD. ENGG. COLLEGE, MOHALI. SECTOR 112, LANDRAN, MOHALI. PAN: AADCR5348A ITA NO.817/CHD/2013 (ASSESSMENT YEAR : 2009-10) THE D.C.I.T., VS. PROGRESSIVE PROMOTERS & DEVELOPERS, CIRCLE 6(1), BEHIND CHD. ENGG. COLLEGE, MOHALI. SECTOR 112, LANDRAN, MOHALI. PAN: AAIFP8869Q 2 AND ITA NO.16/CHD/2013 (ASSESSMENT YEAR : 2009-10) THE D.C.I.T., VS. PROGRESSIVE PROMOTERS & DEVELOPERS, CIRCLE 6(1), BEHIND CHD. ENGG. COLLEGE, MOHALI. SECTOR 112, LANDRAN, MOHALI. PAN: AAIFP8869Q (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VINEET KRISHAN DEPARTMENT BY : SHRI SUSHIL KUMAR, DR DATE OF HEARING : 14.12.2015 DATE OF PRONOUNCEMENT : 07 .01.2016 O R D E R PER RANO JAIN, A.M . : THESE FIVE APPEALS FILED BY THE TWO DIFFERENT ASSESSEES AND THE REVENUE ARE DIRECTED AGAINST THE SEPARATE ORDERS OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS), CHANDIGARH DATED 17.10.2012, 17.10.2012, 2.5.2013, 2.5.2013 AND 17.10.2012 RESPECTIVELY FOR ASSESSMENT YEAR 2009-10. 2. SINCE THE FACTS AND CIRCUMSTANCES ARE IDENTICAL IN ALL THE APPEALS, THE SAME WERE HEARD TOGETHER AN D ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR T HE SAKE OF CONVENIENCE. 3 ITA NO.1351/CHD/2012 : (ASSESSEES APPEAL) ( RKM HOUSING LTD.) 3. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSESSEE WAS ENGAGED IN DEVELOPING A RESIDENTIAL PR OJECT IN ZIRAKPUR DURING THE YEAR. SURVEY UNDER SECTION 133A OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) WA S CARRIED OUT AT ITS PREMISES AS ON 6.3.2009. DURING THE COURSE OF SURVEY, CERTAIN INCRIMINATING DOCUMENTS W ERE FOUND AND THE ASSESSEE SURRENDERED AN AMOUNT OF RS.90,00,000/- AT THE TIME OF SURVEY. THE ASSESSEE DISCLOSED THE SAME IN ITS RETURN OF INCOME. HOWEVE R, THE ASSESSEE SHOWED THIS AMOUNT OF RS.90,00,000/- AS IT S PROJECT COST. WHEN ASKED ABOUT IT BY THE ASSESSING OFFICER, THE ASSESSEE EXPLAINED THAT THIS AMOUNT WA S DECLARED DURING THE COURSE OF SURVEY AND SO IT WAS INCLUDED IN THE PROJECT COST. THE ASSESSING OFFICE R WAS NOT SATISFIED BY THIS EXPLANATION, THOUGH HE COMPLE TED THE ASSESSMENT AT AN INCOME OF RS.90,12,340/- AS AGAINS T RETURNED INCOME OF RS.90,00,000/- MAKING CERTAIN MI NOR ADDITIONS. HE, SIMULTANEOUSLY REDUCED THIS AMOUNT OF RS.90,00,000/- FROM THE TOTAL PROJECT COST SHOWN BY THE ASSESSEE. 4. BEFORE THE LEARNED CIT (APPEALS), THE ASSESSEE CONTENDED THAT IT IS SETTLED LAW THAT WHATEVER SURR ENDER IS MADE EITHER UNDER STOCK IN TRADE OR IN PROJECT COST OR IN ANY UNEXPLAINED INVESTMENT, THEN THE SAID SURRENDER ED 4 AMOUNT HAS TO BE ADDED IN THE SAID CLOSING STOCK OR PROJECT COST OR EXPENDITURE HEAD WITH THE SURRENDER ED AMOUNT BECAUSE THEN ONLY THE TRUE AND FAIR VIEW OF THE PROJECT COST OR STOCK IN TRADE OR INVESTMENT SHALL BE CALCULATED AND ASCERTAINABLE. THE LEARNED CIT (APP EALS), AFTER CONSIDERING THESE SUBMISSIONS, FORMED A VIEW THAT THE SURRENDERED AMOUNT CAN BE TREATED AS PART OF PR OJECT COST ONLY IF THE AMOUNT HAS BEEN UTILIZED TOWARDS PURCHASE OF MATERIAL/LAND FOR THE PROJECT OR EXPEND ITURE INCURRED FOR THE PROJECT. SINCE THE ASSESSEE HAD N OT EXPLAINED SO, THE ACTION OF THE ASSESSING OFFICER W AS CONFIRMED BY THE LEARNED CIT (APPEALS). 5. AGGRIEVED BY THIS ORDER OF THE LEARNED CIT (APPEALS), THE ASSESSEE HAS COME IN APPEAL RAISING THE FOLLOWING GROUNDS OF APPEAL : 1 . THAT THE ORDER DATED 17.10.2012 PASSED BY THE CIT (APPEALS) CHANDIGARH AND THE ORDER DATED 29.12.2011 PASSED BY THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 6(1), MOHA LI FOR THE ABOVE REFERRED YEAR ARE BOTH BAD IN LAW AND AGAINST T HE FACTS OF THE CASE. 2. THAT THE LD. CIT (APPEALS) HAS GREATLY ERRED IN LAW AND AGAINST FACTS OF THE CASE IN :- A) IN SUSTAINING THE ADDITION OF RS.12,238 RECEIVED AS INTEREST ON FDR AND TAXING THE SAME AS 'INCOME FROM OTHER SOURC ES' WITHOUT APPRECIATING THE FACTS OF THE CASE & NOT REL YING UPON THE SUBMISSION MADE. B) IN SUSTAINING THE ADDITION OF RS. 90 LACS WHICH WAS MADE BY THE DCIT BY REDUCING THE PROJECT COST BY RS.90,00,000 /- ON ACCOUNT OF INCOME SURRENDERED AGAINST UTTER DISREGA RD OF ALL 5 ACCOUNTING PRACTICES AND BOOK KEEPING ENTRIES & NOT UNDERSTANDING THE LOGIC & THE ACCOUNTING TREATMENT OF THIS ENTRY AND DISMISSING THE SUBMISSIONS OF THE APPELLANT ON FRIVOLOUS GROUNDS, WITHOUT APPRECIATING THE COMPLETE FACTS & L EGAL POSITION OF THE MATTER. 3. THAT THE ADDITION UPHELD BY THE CIT (APPEALS) IS BAD, UNJUST, ARBITRARY AND OUTSIDE THE SCOPE OF NATURAL JUSTICE AND ACCOUNTINGS PRACTICES AND HAS BEEN SUSTAINED WITHOU T APPRECIATING THE PROPER PROVISIONS OF THE INCOME TA X ACT & ACCOUNTING PRACTICES. 4. THAT THE ADDITION UPHELD BY THE CIT (APPEALS) IS BAD, UNJUST, ARBITRARY AND OUTSIDE THE SCOPE OF NATURAL JUSTICE AND ACCOUNTINGS PRACTICES AND HAS BEEN SUSTAINED WITHOU T APPRECIATING THE PROPER PROVISIONS OF THE INCOME TA X ACT & ACCOUNTING PRACTICES. 6. DURING THE COURSE OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE PREFERRED NOT TO PRESS THE GROUND NO.2(A). THE GROUND NO.2(A) IS DISMISSED AS NOT B EING PRESSED. 7. AS REGARDS THE AMOUNT OF RS.90,00,000/- SURRENDERED DURING THE COURSE OF SURVEY, IT WAS SUB MITTED THAT THE ASSESSEE HAS BEEN FOLLOWING PROJECT COMPLE TION METHOD, SINCE THE SURRENDER WAS MADE ON ACCOUNT OF UNEXPLAINED EXPENDITURE, THEREFORE, NATURALLY THE A MOUNT SO SURRENDERED SHOULD FORM PART OF PROJECT COST. 8. THE LEARNED D.R. RELIED ON THE ORDER OF THE LEARNED CIT (APPEALS), SPECIALLY PAGE 4, PARA 4.3 A ND FURTHER STATED THAT BY TREATING THE SURRENDERED INC OME AS PART OF THE PROJECT COST, THE ASSESSEE WILL BE ENTI TLED TO 6 ADJUST THE SAME AGAINST INCOMES GENERATED IN LATER YEARS AND IN THIS WAY, ITS TAX LIABILITY IN LATER YEARS W ILL GET REDUCED, WHICH IS NOT PERMISSIBLE AS PER LAW. 9. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOTH THE PARTIES, PERUSED THE FINDINGS OF THE AUTHO RITIES BELOW AND CONSIDERED THE MATERIAL AVAILABLE ON RECO RD. IN VIEW OF THE FACT THAT THE LEARNED COUNSEL FOR THE A SSESSEE HAS NOT PRESSED GROUND NO.2(A), ALL OTHER GROUNDS R ELATE TO THE SURRENDERED AMOUNT OF RS.90,00,000/-, THE ON LY ISSUE TO BE DECIDED BY US IS WHETHER THE AMOUNT OF RS.90,00,000/- SURRENDERED BY THE ASSESSEE DURING T HE COURSE OF SURVEY BE FORMED PART OF ITS PROJECT COST . THE LEARNED CIT (APPEALS) HAS DECIDED THE ISSUE AT PAGE 4, PARA 4.3 OF HIS ORDER, WHICH READS AS UNDER : 4.3 I HAVE CONSIDERED THE SUBMISSION OF THE LD. CO UNSEL. A PERUSAL OF THE SURRENDER LETTER REVEALS THAT THE AP PELLANT HAD AGREED TO BE TAXED ON ADDITIONAL INCOME OF RS. 90,00,0 00/- AS PERANNEXUREA-4ANDA-6OFTHEMATERIAL IMPOUNDED AT THE TIME OF SURVEY. THE SURRENDER MADE CAN BE TREATED AS PART OF PROJECT COST ONLY IF THE AMOUNT HAD BEEN UTILIZED TOWARDS PURCHASE OF MATERIAL /LAND FOR THE PROJECT OR EXPENDITURE INCURRED FOR THE PROJECT. THE APPELLAN T HAS NOT EXPLAINED AS TO WHETHER THE AMOUNT WAS SO UTILI ZED. HENCE, THE APPELLANT CANNOT BE ALLOWED TO INCREASE THE PROJECT COST BY THE AMOUNT OF SURRENDER AND SO ACTION OF TH E ASSESSING OFFICER IN REDUCING THE PROJECT COST BY RS.90,00,000/- IS UPHELD. 10. ON GOING THROUGH THE SAME, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LEARNED CIT (APPEALS) , SINCE THE UNDISPUTED FACTS OF THE CASE ARE THAT THE ADDIT IONAL 7 INCOME OF RS.90,00,000/- WAS SURRENDERED DURING THE COURSE OF SURVEY AS THE SURRENDER WAS MADE ON THE B ASIS OF CERTAIN DOCUMENTS FOUND DURING THE COURSE OF SUR VEY. THESE DOCUMENTS ARE REFERRED TO AS ANNEXURE A-4 AND AS- 6 IN THE ORDER OF THE LEARNED CIT (APPEALS). THIS FACT HAS NOT BEEN CONTROVERTED EVEN AT THE TIME OF HEARING B EFORE US. EVEN IN THE SURRENDER LETTER FILED BY THE ASSE SSEE ITSELF, IT IS MENTIONED THAT THE DOCUMENT MENTIONIN G ONE TRANSACTION IS NOT EXPLAINABLE. SECTION 292C OF TH E ACT IS QUITE CLEAR THAT IN CASE OF ANY DOCUMENT FOUND DURI NG THE COURSE OF SURVEY, THE PRESUMPTION IS AGAINST THE AS SESSEE TO CONSIDER THAT THE DOCUMENT IS OWNED BY THE ASSES SEE. THOUGH THE PRESUMPTION IS A REBUTTABLE ONE, BUT IN THE PRESENT CASE, NOWHERE AT ANY STAGE THE ASSESSEE HAD EVEN TRIED TO REBUT THE SAME. SO FAR, THE ASSESSEE IS R IGHT IN ADDING THE SAID AMOUNT IN ITS RETURN OF INCOME. HO WEVER, ADDING THE SAID AMOUNT IN ITS PROJECT COST WILL AMO UNT TO TAKING THE FACT OF SURRENDERING THE INCOME TO AN UN REAL EXTENT. THE AMOUNT IS CONSIDERED TO BE OF THE NATU RE OF UNEXPLAINED EXPENDITURE, THE EXPENDITURE WHICH WERE NOT RECORDED IN THE BOOKS OF ACCOUNTS, ONCE THE AMOUNT EXPANDED WERE OUT OF AN UNDISCLOSED INCOME OF THE ASSESSEE, THE ASSESSEE AFTER SURRENDERING THE SAME CANNOT ASK FOR INCREASE IN PROJECT COST BY THIS AMOUNT. T HE CONTENTION OF THE LEARNED D.R. THAT BY ADDING THE SURRENDERED INCOME IN THE PROJECT COST ON THE ONE H AND AND PAYING TAXES ON SUCH INCOME ON THE OTHER HAND, WOULD AMOUNT TO NULLIFYING THE EFFECT OF SURRENDER, AS THE 8 ASSESSEE WILL TAKE BENEFIT OF THE SAME IN SUCCEEDIN G YEAR, IS CORRECT. IN VIEW OF THE ABOVE, THE ACTION OF TH E ASSESSING OFFICER IN NOT ALLOWING THE SURRENDERED A MOUNT TO BE CONSIDERED AS PROJECT COST IS FOUND TO BE COR RECT. 11. THE APPEAL OF THE ASSESSEE IS DISMISSED. ITA NO.1352/CHD/2012 (ASSESSEES APPEAL) : (PROGRESSIVE PROMOTERS & DEVELOPERS) 12. IT IS RELEVANT TO OBSERVE HERE THAT THE FACTS AND CIRCUMSTANCES OF THIS CASE ARE SIMILAR TO THAT OF R KM HOUSING LTD. IN ITA NO.1351/CHD/2012 AND THE FINDIN GS GIVEN IN ITA NO.1351/CHD/2012 SHALL APPLY TO THIS C ASE ALSO WITH EQUAL FORCE. ITA NO.816/CHD/2013 : (REVENUES APPEAL) ( RKM HOUSING LTD.) 13. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LEARNED CIT (APPEALS), CHANDIGARH DATED 2.5.2013, WHEREBY HE HAS DELETED THE PENALTY AMOUN TING TO RS.29,99,700/- LEVIED BY THE ASSESSING OFFICER U NDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (IN S HORT THE ACT), IN THE BACKGROUND OF THE FACTS AS STATE D IN ITA NO.1351/CHD/2012. SINCE THE ASSESSEE HAS ADDED THE SURRENDERED INCOME OF RS.90 LACS IN ITS PROJECT COS T, THE ASSESSING OFFICER LEVIED PENALTY CONSIDERING RS.90 LACS AS THE INCOME CONCEALED BY THE ASSESSEE. 14. BEFORE THE LEARNED CIT (APPEALS), IT WAS ARGUE D THAT THE ASSESSEE HAS NEITHER CONCEALED ANY INCOME, NOR 9 HAS FILED ANY INACCURATE PARTICULARS OF ITS INCOME. THE AMOUNT OF RS.90 LACS AS SURRENDERED DURING THE COUR SE OF SURVEY WAS DULY REFLECTED IN THE RETURN OF INCOME. THE ONLY DIFFERENCE OF OPINION BETWEEN ASSESSEE AND THE ASSESSING OFFICER WAS WITH REGARD TO TREATING THE S AID SURRENDER AS PART OF THE PROJECT COST. FURTHER, TH E SURRENDER WAS MADE WITH A CONDITION OF NO IMPOSITIO N OF PENALTY. AFTER CONSIDERING THE SUBMISSION OF THE A SSESSEE, THE LEARNED CIT (APPEALS) HELD THAT THE INCOME HAS BEEN ASSESSED AS DECLARED BY THE ASSESSEE IN ITS RETURN OF INCOME AND SINCE SURRENDER WAS MADE VOLUNTARILY WIT H A CONDITION NOT TO LEVY PENALTY, THE LEARNED CIT (APP EALS) DELETED THE PENALTY. 15. AGGRIEVED BY THIS ORDER, THE DEPARTMENT HAS COME IN APPEAL BEFORE US. 16. THE LEARNED D.R. RELIED ON THE ORDER OF THE ASSESSING OFFICER AND FURTHER ARGUED THAT THE LEARN ED CIT (APPEALS) HAS ERRED IN DELETING THE PENALTY HOLDING THAT SINCE THE SURRENDER WAS MADE SUBJECT TO NO PENAL AC TION, IT THEREBY IMPLIES THAT THERE WAS SOME UNDERSTANDIN G WITH THE DEPARTMENT AT THE TIME OF SURRENDER. FURTHER, IT WAS ARGUED THAT THE DEPARTMENT IS NOT BOUND BY ANY SUCH UNILATERAL CONDITION LAID DOWN BY THE ASSESSEE. 17. THE LEARNED COUNSEL FOR THE ASSESSEE RELIED ON THE ORDER OF THE LEARNED CIT (APPEALS). 18. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF 10 BOTH THE PARTIES, PERUSED THE FINDINGS OF THE AUTHO RITIES BELOW AND CONSIDERED THE MATERIAL AVAILABLE ON RECO RD. THE FACTS UNDER WHICH THE PENALTY HAS BEEN LEVIED A RE STATED IN ITA NO.1351/CHD/2012. WE HAVE UPHELD THE ACTION OF THE ASSESSING OFFICER IN NOT TREATING THE SURRENDERED AMOUNT AS PART OF THE PROJECT COST. IN THIS BACKGROUND, WE ALSO AGREE WITH THE CONTENTION RAISE D BY THE LEARNED D.R. THAT ONLY BECAUSE THE ASSESSEE HAS VOLUNTARILY SURRENDERED THE INCOME, PENALTY COULD N OT BE LEVIED, IS NOT A CORRECT PROPOSITION. HOWEVER, THE RE ARE OTHER REASONS FOR WHICH THE PENALTY IN SUCH A CASE CANNOT BE LEVIED. FIRSTLY, THE ASSESSEE HAS FILED ITS RET URN OF INCOME INCLUDING THE SURRENDERED INCOME AND HAS PAI D TAXES ON THE SAME. THE INCOME HAS BEEN ASSESSED AT THE SAME AMOUNT. THE ONLY DISPUTE IS WITH REGARD TO THE AMOUNT BEING TREATED BY THE ASSESSEE AS A PART OF I TS PROJECT COST. THE ISSUE HAS BEEN DECIDED BY US AGA INST THE ASSESSEE IN APPEAL NO.1351/CHD/2012. HOWEVER, WE DO NOT FIND ANY REASON TO UPHOLD THE LEVY OF PENALT Y IN SUCH CIRCUMSTANCES. THE ASSESSEE HAS MADE A CLAIM BY TREATING THE SURRENDERED INCOME AS A PART OF ITS PR OJECT COST, WHICH HAS BEEN DECLINED BY THE ASSESSING OFFI CER. THERE IS A DIFFERENCE OF OPINION BETWEEN THE ASSESS EE AND THE ASSESSING OFFICER. THIS IS NEITHER A CASE OF CONCEALMENT OF INCOME, NOR FURNISHING OF INACCURATE PARTICULARS. THE ASSESSEE HAS DISCLOSED EVERY THIN G PROPERLY. OUR VIEW GETS SUPPORT FROM THE JUDGMENT OF THE HON'BLE APEX COURT IN THE CASE OF CIT VS. RELIANCE 11 PETROPRODUCTS PVT. LTD . [2010] 322 ITR 158(SC). 19. IN VIEW OF THE ABOVE, WE UPHOLD THE ACTION OF THE LEARNED CIT (APPEALS) IN DELETING THE PENALTY. 20. THE APPEAL OF THE REVENUE IS DISMISSED. ITA NO.817/CHD/2013 (REVENUES APPEAL) : (PROGRESSIVE PROMOTERS & DEVELOPERS) 21. IT IS RELEVANT TO OBSERVE HERE THAT THE FACTS AND CIRCUMSTANCES OF THIS CASE ARE SIMILAR TO THAT OF R KM HOUSING LTD. IN ITA NO.816/CHD/2013 AND THE FINDING S GIVEN IN ITA NO.816/CHD/2013 SHALL APPLY TO THIS CA SE MUTATIS MUTANDIS. ITA NO.16/CHD/2013 (REVENUES APPEAL) : (PROGRESSIVE PROMOTERS & DEVELOPERS) 22. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS A REAL ESTATE DEVELOPER AND AT THE TIME OF SURVEY UNDER SECTION 133A OF THE ACT CARRIED OUT AT THE BUSINESS PREMISES OF THE ASSESSEE AS ON 6.3.2009, STATEMENT OF ONE SHRI ASHOK KUKREJA, THE HUSBAND OF THE PARTNER OF THE ASSESSEE FIRM MRS.MEENA KUKREJA WAS RECORDED, WHEREBY HE STATED THAT THE ACTUAL CASH IN HAND WAS RS.3,50,000/-, WHILE CASH AS PER BOOKS WAS RS.52,81,277/-. AN ADDITION OF RS.49,31,277/- (RS.52,81,277/- RS.3,50,000/-) WAS MADE BY THE ASSESSING OFFICER. 12 23. BEFORE THE LEARNED CIT (APPEALS), THE ASSESSEE FILED A DETAILED CHART RECONCILING THE CASH IN HAND AND CASH AS PER BOOKS. FURTHER, IT WAS EXPLAINED THAT THE CASH IN HAND ON THE DATE OF SURVEY WAS RS.3,50,000/ - WHILE AS PER BOOKS WAS RS.52,80,777/-. THE STATEME NT WAS GIVEN BY SHRI ASHOK KUKREJA GIVING THE ACTUAL F ACTS SINCE AN AMOUNT OF RS.49,30,777/- WAS LYING AT THE RESIDENCE OF SMT.MEENA KUKREJA IN ORDER TO AVOID AN Y KIND OF THEFT IN OFFICE. THE FACT WAS NOT IN THE KNOWLE DGE OF SHRI ASHOK KUKREJA. THE LEARNED CIT (APPEALS) AFTE R CONSIDERING THE SUBMISSION, ALLOWED THE APPEAL OF T HE ASSESSEE. 24. AGGRIEVED, THE DEPARTMENT HAS COME IN APPEAL BEFORE US. 25. THE LEARNED D.R. RELIED ON THE ORDER OF THE ASSESSING OFFICER AND SUBMITTED THAT SINCE THERE WA S A CLEAR DIFFERENCE OF AN AMOUNT OF RS.49,31,277/- BET WEEN THE PHYSICAL CASH AND CASH AS PER BOOKS, THE ADDITI ON WAS TO BE MADE BY THE ASSESSING OFFICER. 26. THE LEARNED COUNSEL FOR THE ASSESSEE RELIED ON THE ORDER OF THE LEARNED CIT (APPEALS). 27. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOTH THE PARTIES, PERUSED THE FINDINGS OF THE AUTHO RITIES BELOW AND CONSIDERED THE MATERIAL AVAILABLE ON RECO RD. ON PERUSAL OF THE ORDER OF THE LEARNED CIT (APPEALS ), WE 13 FIND THAT HE HAS GIVEN RELIEF TO THE ASSESSEE, HOLD ING AS FOLLOWS : 3.2 DURING THE COURSE OF APPELLATE PROCEEDINGS, THE LD. COUNJSEL FOR THE APPELLANT HAS FILED A WRITTEN SUBMISSION, RELEVANT PORTION OF WHICH IS REPRODUCED BELOW : 'THAT MRS. MEENA KUKREJA WAS HANDLING THE BUSINE SS AND THE DETAILS OF THE CASH IN HAND WERE AS UNDER AS PER CASH HOOK AND BOO KS OF ACCOUNTS PRODUCED BEFORE THE ASSESSING OFFICER: DATE PARTICULARS AMOUNT 31 ST JAN 2009 OPENING BALANCE 34,37,477/- CASH WITHDRAWN FROM BANKS 1 ST FEB 2009-18 TH FEB 2009 13,45,300/- 25 TH FEB 2009 CASH RECEIPT AGAINST BOOKING 11,00,000/ - FLATS TOTAL 58,82,777/- 1 ST FEB 2009- CASH PAYMENTS/DEPOSITS TO 25 TH FEB 2009 PARTIES AND BANKS 6,43,500/- BALANCE ON 01 ST MAR 2009 52,39,277/- 1 ST MAR-6 TH MAR 2009 ADDITIONS 90,000/- 1 ST MAR-6 TH MAR 2009 WITHDRAWAL 48,500/- BALANCE AS ON 06/03/2009 52,80,777/- AS STATED BY MR. ASHOK KUKREJA THAT THE CASH IN HAN D ON 06/03/2009 IS RS.3,50,000/- BUT AS PER BOOKS OF ACCOUNTS IT WAS R S.52,80,777/-. HE GAVE THE STATEMENT ONLY ON THE ESTIMATED BASIS NOT AS PER TH E BOOKS OF ACCOUNTS. FURTHER RS.49,30,777/- WAS KEPT WITH MRS. MEENA KUK REJA FOR BUSINESS ACTIVITY AT HER RESIDENCE TO AVOID ANY KIND OF THEFT IN THE OFFICE WHICH WAS NOT IN THE KNOWLEDGE OF MR. ASHOK KUKREJA AND THE CASH IN HAND AS PER CASH BOOK AS MENTIONED ABOVE WAS UTILIZED IN THE SUBSEQUENT MONT HS FOR THE BUSINESS ACTIVITIES OF THE FIRM.' 3.3 I HAVE CONSIDERED THE SUBMISSION OF THE LD. COUNSEL . THE DIFFERENCE BETWEEN CASH IN HAND ON THE DATE OF SURVEY AS STATED BY THE PARTNER OF THE HUSBAND OF THE FIRM AT THE TIME OF SURVEY AND AS PER THE CASH BOOK PRODUCED AT THE TIME OF ASSESSMENT HAS BEEN ADDED IN THIS CASE. IT IS NOT U NDERSTOOD AS TO IN WHAT CAPACITY SHRI ASHOK KUKREJA HAD GIVEN THE STATEMENT BEFORE THE SURVEY PARTY I.E. WHETHER HE WAS AUTHORIZED BY MRS. MEENA KUKREJA, PA RTNER OF THE FIRM TO GIVE ANY STATEMENT ON HER BEHALF OR ON BEHALF OF THE FIRM. I T IS ALSO NOT UNDERSTOOD AS TO WHETHER THE CASH BOOK WAS AVAILABLE AT THE TIME OF SURVEY AND IF SO WHETHER IT WAS 14 SIGNED BY THE SURVEY PARTY, SINCE THERE IS NO MENTI ON OF THIS FACT IN THE ASSESSMENT ORDER. THE ADDITION HAS BEEN MADE MERELY ON THE BAS IS OF THE STATEMENT OF PARTNER'S HUSBAND. ASSESSING OFFICER HAS NOT POINTE D OUT ANY DISCREPANCY IN THE CASH BOOK PRODUCED BEFORE HIM. THE ASSESSING OF FICER HAS ALSO NOT MENTIONED IF ANY UNEXPLAINED CASH HAD BEEN INTRODUCED WHICH C ALLED FOR THE ADDITION. BE AS IT MAY, THE ADDITION CANNOT BE MADE SIMPLY BECAU SE SOMEONE HAS STATED THE POSITION OF CASH ON THE DATE OF SURVEY, WHICH DOES NOT TALLY WITH THE CASH BOOK BALANCE ON THAT DATE. HENCE, THE ADDITION MADE ON T HIS ACCOUNT OF RS. 49,31,277/- IS DELETED. GROUNDS OF APPEAL NOS. 2(A) AND 2(B) AR E ALLOWED. 28. ON PERUSAL OF THE SAME, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LEARNED CIT (APPEALS) . SHRI ASHOK KUKREJA WHOSE STATEMENT WAS RECORDED AT THE T IME OF SURVEY IS NOT RELATED TO THE ASSESSEE FIRM. HE IS THE HUSBAND OF ONE OF THE PARTNERS SMT.MEENA KUKREJA. WE DO NOT KNOW IN WHAT CAPACITY HIS STATEMENT WAS RECO RDED AT THE TIME OF SURVEY. EVEN THE FACT OF CASH BOOK BEING AVAILABLE, AS STATED BY THE LEARNED CIT (APPEALS), IS TRUE OR NOT, WE ARE NOT AWARE. IN VIEW OF THIS, WE CONF IRM THE ORDER OF THE LEARNED CIT (APPEALS) IN THIS REGARD. 29. THE APPEAL OF THE REVENUE IS DISMISSED. 30. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE S AND THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 7 TH DAY OF JANUARY, 2016. SD/- SD/- (BHAVNESH SAINI) (RANO JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 7 TH JANUARY, 2016 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/THE CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH