Urvi M.Kothari, Baroda V. The Income tax Officer,Ward-2(2), Baroda

ITA 827/AHD/2009

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1276 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 year(s) 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-09-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 10-09-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 16-03-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHRIR P MAURYA
• Keywords: Onus to prove
• Section: 69

Judgement Text

N THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMADABAD , BEFORE: SHRIKUL BHARAT, JUDICIAL MEMBER SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO. 827/AHD/2009 ASSESSMENT YEAR :2005-06 URVI M KOTHARI 4, RAJENDRAPARK SOCIETY, MANJALPUR, BARODA V/S . THE INCOME TAX OFFICER, WARD-2(2), BARODA PAN NO. ANCPK5011A (APPELLANT) .. (RESPONDENT) /BY ASSESSEE MS. URVASHISHODHAN, A.R. BY REVENUE SHRIR. P. MAURYA, SR. D.R. /DATE OF HEARING 10.09.2015 /DATE OF PRONOUNCEMENT 24.09.2015 O R D E R PER :KUL BHARAT, JUDICIAL MEMBER THIS APPEAL FILED BY THE ASSESSEEIS DIRECTED AGAINS T THE ORDER OF CIT(A)-II, BARODA, DATED 08.12.2008 PERTAINING TO ASSESSMENT Y EARS 2005-06. THEASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: ITA NO. 827/AHD/09A.Y.05-06(URVI M KOTHARI VS. ITO) PAGE 2 1. THE LEARNED CIT (APPEALS) ERRED IN HOLDING THAT THE ASSESSING OFFICER WAS JUSTIFIED IN BRINGING TO TAX THE FOLLOWING AMOUNTS, THOUGH NOT RECEIVED / RECEIVABLE BY THE APPELLANT. 1) KUONI TRAVELS (INDIA) PVT. LTD.- RS.4,80 ,000 2) A)VFSINDIAPVT.LTD. - RS.8,64,000 B) VFS INDIA PVT. LTD. - RS.3,19,368 C) VFS INDIA PVT. LTD. - RS.6,63,870 (OUT OF ADDITION MADE OF RS.796644) 3) PRABHAT AUTOMATION - RS. 58,500 2. THE LEARNED CIT (APPEALS) ERRED IN HOLDING THAT THE APPELLANT WAS ENTITLED TO RECEIVE THESE INCOMES AND FURTHER ERRED IN CONFIRMI NG THE ADDITION OF RS.23,85,738/-. 3. THE LEARNED CIT (APPEALS) ERRED IN DISREGARDING THE EVIDENCES / CONFIRMATION LETTERS / FILED BY THE APPELLANT DURING THE COURSE OF ASSESSMENT PROCEEDINGS / APPELLATE PROCEEDINGS. 4. THE APPELLANT CRAVES, LEAVE TO ADD OR ALTER ANY OF THE GROUNDS MENTIONED ABOVE. 2. BRIEFLY STATED FACTS ARE THAT THE CASE OF THE AS SESSEE WAS TAKEN UP FOR SCRUTINY ASSESSMENT AND ASSESSMENT U/S.143(3) OF TH E INCOME TAX ACT, 1961, HEREINAFTER REFERRED TO AS THE ACT WAS FRAMED VID E ORDER DATED 31.12.2007. THE ASSESSING OFFICER WHILE FRAMING ASSESSMENT MADE DISALLOWANCE OF RS.32,32,404/- TREATING THE SAME AS UNDISCLOSED IN COME. 3. THE ASSESSEE AGGRIEVED BY THIS ASSESSMENT ORDER PREFERRED THE APPEAL BEFORE THE LD. CIT(A) WHO AFTER CONSIDERING THE SUB MISSIONS PARTLY ALLOWED THE APPEAL THEREBY THE LD. CIT(A) SUSTAINED THE ADDITIO N TO THE EXTENT OF RS.23,85,738/- OUT OF ADDITION OF RS.32,32,404/-. 4. THE ONLY EFFECTIVE GROUND IS AGAINST CONFIRMATIO N OF ADDITION OF RS.23,85,738/-. LD. COUNSEL FOR THE ASSESSEE VEHEM ENTLY ARGUED THAT THE AUTHORITIES BELOW WERE NOT JUSTIFIED IN MAKING ADDI TION AND CONFIRMING THE SAME. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE IMPUGNED INCOME WAS NEITHER ACCRUED TO NOR RECEIVED BY THE ASSESSEE. T HEREFORE, THE AUTHORITIES BELOW WERE UNJUSTIFIED TO MAKE ADDITION. LD. COUNSE L FOR THE ASSESSEE DREW OUR ITA NO. 827/AHD/09A.Y.05-06(URVI M KOTHARI VS. ITO) PAGE 3 ATTENTION TO PAPER BOOK PAGE NOS. 115 & 116, WHEREI N THE LETTER FROM VFS (INDIA) PVT. LTD. IS ENCLOSED. AS PERTHIS LETTER, THE AGREEMENT WITH APPELLANT WAS WITH REGARD TO SERVICE PROVIDER THE PERIOD AS GIVEN IN THE LETTER IS 31.05.2003 TO 06-2006, 01.05.2003 TO 01.2005 AND 08.09.2003 TO 06 .2005. LD. COUNSEL ALSO DREW OUR ATTENTION TO THE LETTER FROM VFS (INDIA) P VT. LTD. AT PAGE NO.9 OF THE PAPER BOOK, WHEREIN A CERTIFICATE IS ENCLOSED STATI NG THEREIN THAT ALL SERVICES/RENT AGREEMENTS WITH THE ASSESSEE WAS TERMINATED ON OR B EFORE 1 ST APRIL, 2004 AND THERE WAS NO PAYMENT RELEASED TO THE ASSESSEE AFTER THIS DATE. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT(A) CONFIRME D THE PAYMENTS WITH REGARD TO VFS (INDIA) PVT. LTD. OF RS.8,64,000/-, 3,19,368 /- AND 6,63,870/-. LD. COUNSEL SUBMITTED THAT IN REFUNDABLE INTEREST FREE AMOUNT OF RS.15,50,000/- HAD OFFERED AS INCOME FROM COMPANY FOR A.Y. 2003-04. L D. COUNSEL SUBMITTED THAT UNDER THE FACTS OF THE PRESENT CASE, BOTH THE ASSES SING OFFICER AND LD. CIT(A) HAD MADE ADDITION AND CONFIRMED THE SAME ON UNJUSTI FIED BASIS. ON THE CONTRARY, LD. SR. D.R. HAS SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ASSESSING OFFICER IN PARA 5.5 AND 5.6 OF HIS ORDER HAS MADE ADDITION BY OBSERVING AS UNDER: 5.5 THE ASSESSEE FILED AN AFFIDAVIT ON 31.12.2007 STATING THAT SHE HAD NOT EARNED ANY RENTAL INCOME DURING THE F.Y UNDER CONSIDERATION. H OWEVER, SUCH AFFIDAVIT WAS NOT SUPPORTED BY ANY DOCUMENTARY EVIDENCES IN THE FORM OF CANCELLATION AGREEMENT. THE AFFIDAVIT CANNOT BE ACCEPTED AS THE SAME IS A SELF- SERVING STATEMENT NOT SUPPORTED BY ANY DOCUMENTARY EVIDENCE. THE ASSESSEE HAD ENTERED INTO ANY AMENITIES AGREEMENT WITH M/S KUONI TRAVEL (INDIA) PVT LTD ON 21.01.2003 . IN CLAUSE 4 OF THIS AGREEMENT, IT IS CLEARLY MENTIONED THAT THE AGREEMENT WAS VALID F ROM 15.01.2003 TO 14.10.2005. HENCE, THE ONUS TO PROVE THAT THE SAID AGREEMENTS W ERE CANCELLED WAS UPON THE ASSESSEE. SIMILARLY, THE ASSESSEE HAD ENTERED INTO VARIOUS AGREEMENTS AS LISTED ABOVE FOR RENT AND PROVISION OFAMENITIES WITH M/S VFS (IN DIA) PVT. LTD. PERUSAL OF THE AGREEMENTS, MAKE IT AMPLY CLEAR THAT THE SAID AGREE MENTSWERE TO REMAIN EFFECTIVE DURING THE F.Y 2004-05 ALSO. THE ASSESSEE HAS NOT F URNISHED ANY DOCUMENTARY EVIDENCE TO PROVE THAT THE SAID AGREEMENTS HAD BEEN CANCELLED. WHEN THE ONLY PIECE OF EVIDENCE AVAILABLE IN A PARTICULAR CASE IS THE S TATEMENT OF THE ASSESSEE, ANY JUDICIAL AUTHORITY CAN ACCEPT THE SAME AND ORDER ASSESSMENT ON SUCH SOLE EVIDENCE. BUT WHEN, EVEN ACCORDING TO THE ASSESSEE, THERE IS OTHER DOCU MENTARY EVIDENCE OF CORROBORATIVE VALUE AND THE SAME IS WITHIN THE REACH OF THE ASSES SEE, THE JUDICIAL BODY CANNOT ACT ON ITA NO. 827/AHD/09A.Y.05-06(URVI M KOTHARI VS. ITO) PAGE 4 THE INTERESTED TESTIMONY OF THE ASSESSEE ALONE. THE LAW OF EVIDENCE MANDATES THAT IF THE BEST EVIDENCE IS NOT PLACED BEFORE THE COURT, A N ADVERSE INFERENCE CAN BE DRAWN AS AGAINST THE PERSON WHO OUGHT TO HAVE PRODUCED IT (CIT V KRISHNAVENIAMMAL, (1986) 158 ITR 826, 829, 830 (MAD)]. 5.6. THE INCOME AS COMPUTED BASED ON THE AGREEMENT S HAVE ACCRUED TO THE ASSESSEE DURING THE F.Y 2004-05 IRRESPECTIVE OF THE FACT THA T SHE HAS NOT RECEIVED THE SAME AS CLAIMED BY HER. SHE WAS SUPPOSED TO DECLARE THE SAM E IN HER RETURN OF INCOME ON ACCRUAL BASIS. HOWEVER, THE ASSESSEE HAS NOT DECLAR ED SUCH INCOME. THE INCOME OF RS.32,32,404/- AS COMPUTED ABOVE IS HEREBY ADDED TO THE TOTAL INCOME OF THE ASSESSEE AS UNDISCLOSED INCOME. PENALTY PROCEEDINGS U/S 271(L)(C) OF THE INCOME TAX ACTARE INITIATED FOR CONCEALING TRUE PARTICULARS OF INCOME . 6. HOWEVER, LD. CIT(A) AFTER CONSIDERING THE SUBMIS SION DECIDED THE ISSUE IN PARA 6 & 7 OF HIS ORDER AS UNDER: 6. I HAVE CONSIDERED THE SUBMISSIONS OF THE AUTHO RIZED REPRESENTATIVE AND THE ORDER OF THE ASSESSING OFFICER. WITH REGARD TO MULT I PLASTIC SERVICES PVT. LTD., THE APPELLANT HAS NOT DECLARED ANY INCOME AND THE COMPA NY HAS CATEGORICALLY STATED THAT THE PAYMENTS HAVE BEEN MADE IN FINANCIAL YEAR 2003- 04 ONLY. SINCE THERE IS NO OTHER EVIDENCE ON RECORD AND NO AGREEMENT EXISTED, THE AD DITION MADE MY THE ASSESSING OFFICER OF RS.66,750/- IS DELETED. WITH REGARD TO M /S. KUONI TRAVELS PVT. LTD. AN AGREEMENT DATED 21.01.2003 EXISTED WHICHWAS VALID F OR THE PERIOD 15.01.2003 TO 14.10.2005. THE APPELLANT HAS FILED A CANCELLATION AGREEMENT DATED 01.04.2004 WHICH AS OBSERVED BY THE ASSESSING OFFICER, CLEARLY STATE S THAT ALL AMOUNTS PAYABLE UNDER THE AGREEMENT FOR SERVICE RENDERED TILL 14.10.2005H AVE BEEN DULY RECEIVED AND NO AMOUNT IS OUTSTANDING AS ON THE DATE OF THIS AGREEM ENT. IT IS PERTINENT TO NOTE THAT THE COPY OF THIS AGREEMENT WAS NOT FILED DURING THE ASS ESSMENT PROCEEDINGS. THE SAME HAS BEEN PLACED BEFORE THE CIT(A). THERE DOES NOT APPEA R TO BE ANY EXPLANATION FOR AN AGREEMENT WHICH SUPPOSEDLY STANDS CANCELLED ON 01.0 4.2004, BUT THE SERVICE PROVIDER CONTINUES TO RENDERS SERVICE TILL 14.10.2005 AND AL L PAYMENTS WERE MADE TILL THE SAID DATE. IT IS PATENTLY OBVIOUS FROM THE ABOVE THAT TH E APPELLANT HAS HURRIEDLY FILED PAPERS TO ESTABLISH HER STAND THAT SHE DID NOT EARN ANY INCOME FROM M/S. KUONI TRAVELS PVT. LTD. IN THE ASSESSMENT YEAR 2004-05. SINCE THE APPELLANT COULD NOT FILE ANY CONVINCING EVIDENCE TO SHOW THAT INCOME HAS NOT BEEN EARNED BY HER FROM M/S. KUONI TRAVELS PVT. LTD., THE ASSESSING OFFICER WAS JUSTIFIED IN MAKING THE ADDITION OF RS.4,80,000/- AND THE SAME IS CONFIRMED. WITH REGAR D TO M/S. VFS (INDIA) PVT. LTD. THE APPELLANT HAD THREE AGREEMENTS FOR PROVIDING SE RVICE. TWO AGREEMENTS WERE VALID FOR THE ENTIRE YEAR UNDER CONSIDERATION, WHILE ONE AGREEMENT WAS VALID TILL 31.01 2005. VIDE LETTER DATED 26.12.2006 M/S. VFS (INDIA) PVT. LTD. HAS CONFIRMED THE FACT, THAT THEY ENTERED INTO THE ABOVE THREE AGREEMENTS. NO MENTION HAS BEEN MADE ABOUT THE CANCELLATION OF ANY OF THE ABOVE AGREEMENTS. TH E ASSESSING OFFICER WAS THEREFORE JUSTIFIED IN BRINGING TO TAX RS.8,64,000/- AND RS.3 ,19,368/- RECEIVED FROM THE TWO AGREEMENTS VALID FOR THE ENTIRE PERIOD. WITH REGARD TO AGREEMENT DATED 31.05.20.03 WHEREIN THE APPELLANT WAS TO RECEIVE RS.66,387/-PER MONTH, SINCE THE AGREEMENT VALIDITY EXPIRED ON 31.01.2005 THE ASSESSING OFFICE R SHOULD HAVE BROUGHT TO TAX RS.6,63,870/-(66387X10). THE ADDITION TO THIS EXTEN T IS CONFIRMED WHILE THE BALANCE BEING RS.1,32,774/- IS DELETED. WITH REGARD TO RECE IPT FROM UTI BANK LTD., THE UTI BANK HAS CATEGORICALLY STATED THAT THEY HAVE NOT PA ID THE APPELLANT ANY SUM BEYOND ITA NO. 827/AHD/09A.Y.05-06(URVI M KOTHARI VS. ITO) PAGE 5 THE PERIOD OF OCTOBER, 2003. NO AGREEMENT HAD BEEN ENTERED INTO WITH THE UTI BANK FURTHERSINCE THERE IS NO EVIDENCE OF RENT RECEIVED EITHER AS PER ANYAGREEMENT OR ANY OTHER SOURCE THERE WAS NO JUSTIFICATION FOR THE ASS ESSING OFFICER TO HAVE MADE THE ADDITION OF RS.6,47,142/-. THE ADDITION IS DIRECTED TO BE DELETED. 7. THE ASSESSING OFFICER HAS MADE A N ADDITION OF RS.58,500/- SAID TO HAVE BEEN RECEIVED FROM PRABHAT AUTOMATION AS RE NT FROM PROPERTY BASED AT SAKINAKA. MY LEARNED PREDECESSOR HAS HELD THAT THE APPELLANT IS THE OWNER OF THIS PROPERTY. NO EVIDENCE HAS BEEN FILED THAT THE PROP ERTY IS LYING VACANT. THE CONCLUSION OF THE ASSESSING OFFICER IS JUSTIFIED AN D THE ADDITION OF RS.58,500/- IS CONFIRMED. THE APPELLANT GETS A RELIEF OF RS.8,46, 666/-. THE BALANCE OF RS.23,85,738/-. 7. AS PER THE ASSESSEE, THE CONTRACTS WERE TERMINAT ED BEFORE THE EXPIRY OF THE CONTRACT PERIOD. THE ASSESSEE HAD NOT RECEIVED ANY PAYMENT TOWARDS THE SERVICES RENDERED NOR THE INCOME WAS ACCRUED TO THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION. UNDER THESE FACTS, THE AUTHOR ITIES BELOW WERE TOTALLY UNJUSTIFIED FOR MAKING ADDITION. THERE IS NO DISPU TE WITH REGARD TO THE FACT THAT THE ASSESSEE ENTERED INTO VARIOUS AGREEMENTS WITH T HE PARTIES AS MENTIONED IN THE ASSESSMENT ORDER. HOWEVER, CONTENTION OF THE A SSESSEE IS THAT CONTRACT WAS TERMINATED BEFORE THE EXPIRY OF THE PERIOD. THEREF ORE, DURING THE YEAR UNDER APPEAL, NO PAYMENT WAS EITHER ACCRUED OR RECEIVED B Y THE ASSESSEE. THE ASSESSING OFFICER AT PAGE NO.4 OF HIS ORDER HAS MEN TIONED THAT THERE WERE AGREEMENTS WITH MULTI TECH PLAST CONTAINERS LTD., K UONI TRAVELS (INDIA) PVT. LTD., VFS (INDIA) PVT. LTD., UTI BANK LTD. AND PRAB HAT AUTOMATION. OUT OF THESE, 5 PARTIES, THE AGREEMENT IN RESPECT OF 3 PAR TIES WAS UP TO THE PERIOD OF 14 TH OCTOBER, 2005 TO 7/9 TH JUNE, 2006 AND IN RESPECT OF OTHER THREE PARTIES, THERE WAS NO AGREEMENT. AS PER THE ASSESSING OFFICER, THE AG REEMENT AMOUNT WAS RS.32,32,404/-. THEREFORE, THIS AMOUNT IN FACT ACC RUED TO ASSESSEE AND ON THAT BASIS, THE ASSESSING OFFICER MADE ADDITION OF THE S AME AS UNDISCLOSED INCOME. HOWEVER, THE LD. CIT(A) REDUCED THIS AMOUNT TO RS.2 3,85,738/- AND GAVE RELIEF OF RS.8,46,666/-. IN RESPECT OF AMOUNT RELATED TO VFS (INDIA) PVT. LTD., THE ASSESSEE HAS PLACED ON RECORD A CERTIFICATE FROM VF S (INDIA) PVT. LTD. THAT NO AMOUNT WAS PAID TO THE ASSESSEE AFTER 1 ST APRIL, 2004. HOWEVER, ASSESSING OFFICER HAS NOT MADE ENQUIRY FROM CONCERNED VFS (IN DIA) PVT. LTD. ITA NO. 827/AHD/09A.Y.05-06(URVI M KOTHARI VS. ITO) PAGE 6 ANDPROCEEDED TO MAKE ADDITION ON ASSUMPTION BASIS. IN OUR CONSIDERED VIEW, THE ASSESSING OFFICER OUGHT TO HAVE VERIFIED FROM T HE CONCERNED PARTY ABOUT THE VERACITY OF THE CERTIFICATE WHICH IS ENCLOSED AT PA GE 9 OF PAPER BOOK. DURING COURSE OF HEARING, LD. COUNSEL FOR THE ASSESSEE HAS DRAWN OUR ATTENTION TO THE SIGNATURE MADE AT THE CERTIFICATE ENCLOSED AT PAGE 9 AND LETTER ENCLOSED AT PAGE NOS. 115 & 116 AND THE AGREEMENT ENCLOSED AT PAGE 1 17 TO 120, ONE OF THE SUNDRY CREDITOR IS MR. GEORGE THOMAS WHOSE SIGNATUR E MATCHES WITH THE CERTIFICATE ON PAGE 9 OF THE PAPER BOOK. UNDER THE SE FACTS, IT CAN BE INFERRED THAT THE FINDING OF THE AUTHORITES IS ILL FOUNDED AND CA NNOT BE SUSTAINED. AS NO CONTRARY MATERIAL HAS BEEN PLACED BY THE REVENUE AN D GATHERED ANY MATERIAL BY MAKING ENQUIRY IN THIS RESPECT, WE HEREBY DIRECT TH E ASSESSING OFFICER TO DELETE THE AMOUNT OF RS.19,71,435/- VFS (INDIA) PVT. LTD.I N RESPECT OF KUONI TRAVELS (INDIA) PVT. LTD., ASSESSING OFFICER HAS MADE ADDIT ION AMOUNTING TO RS.4,80,000/- AND CONFIRMED BY LD. CIT(A). ASSESSI NG OFFICER HAD MADE ADDITION ON THE BASIS THAT THE CONTRACT EXISTED UP TO 19.10.2005. THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE CANCELLA TION OF AGREEMENT BETWEEN M/S. KUONI TRAVELS (INDIA) PVT. LTD. AT PAPER BOOK PAGE 10. THE CANCELLATION OF AGREEMENT DATED 1 ST APRIL, 2004 IS MADE. AS PER THIS CANCELLATION, AG REEMENT DATED 31.01.2003 WAS TERMINATED WITH IMMEDIATE EFFE CT MEANING THEREBY THERE WAS NO CONTRACT EXISTING BETWEEN THE PARTIES POST 1 ST APRIL 2004. AS PER THIS CANCELLATION, AGREEMENT AMOUNT OF RS.15,50,000/- WA S TO BE REFUNDED. THE CONTENTION OF THE ASSESSEE IS THAT THIS AMOUNT OF R S.15,50,000/- WAS DULY OFFERED AS INCOME IN THE PRECEDING YEAR. THE AUTHORITIES B ELOW HAVE CONSTRUED THE TERMS OF THE CANCELLATION OF AGREEMENT THAT THE ASS ESSEE WAS IN RECEIPT OF THE CHARGE TILL OCTOBER, 2005. HOWEVER, THE AUTHORITIE S BELOW HAVE NOT VERIFIED THE FACTUM OF PAYMENT THROUGH M/S. KUONI TRAVELS (INDIA ) PVT. LTD. UNDER THESE FACTS AND THE TERM OF CONTRACT IS CLEAR THAT CONTRA CT WAS TERMINATED WITH IMMEDIATE EFFECT. HOWEVER, THE SAME TERM STATES TH AT ALL AMOUNTS RECEIVED UNDER THE AGREEMENT FOR SERVICES RENDERED TILL 14.1 0.2005 HAS BEEN DULY ITA NO. 827/AHD/09A.Y.05-06(URVI M KOTHARI VS. ITO) PAGE 7 RECEIVED AND NO AMOUNT IS OUTSTANDING AS ON DATE OF THIS AGREEMENT. AS PER THIS TERM, IF IT IS TO BE READ COMPLETELY, THEN TH ERE WAS NO DUES OUTSTANDING ON 1 ST DAY OF APRIL, 2004. HOWEVER, IT IS CLEAR FROM THE CONTRACT THAT THE SERVICE PREFERRED WAS RENDERING SERVICES TILL 14.10.2005 DE SPITE THE FACT THAT THE CONTRACT WAS TERMINATED ON 1 ST APRIL, 2004. UNDER THESE FACTS, IT CANNOT BE INFE RRED THAT NO SERVICE WAS PROVIDED POST 1 ST APRIL, 2004. AS IT IS CLEARLY MENTIONED IN THE CANCELLATION AGREEMENT THAT THE SERVICE PROVIDER WA S RENDERING SERVICES TILL 14.10.2005 AND THE PAYMENTS FOR THE SERVICES RENDER ED TILL 14.10.2005 WAS MADE ON 1 ST APRIL, 2004. THE ASSESSEE HAS NOT PLACED ANY CONF IRMATION FROM THE CONCERNED PARITIES CLARIFYING THE POSITION. UNDER THESE FACTS, WE ARE UNABLE TO ACCEPT THE CONTENTION OF THE LD. COUNSEL FOR THE AS SESSEE. THE ADDITION MADE IN RESPECT OF M/S. KUONI TRAVELS (INDIA) PVT. LTD. IS HEREBY SUSTAINED. THE ONLY AMOUNT IN RESPECT OF PRABHAT AUTOMATION, LD. COUNSE L FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS WERE MADE BEFORE THE LD. CIT(A). WE FIND THAT THE ASSESSING OFFICER HAS NOTED THAT THERE WAS NO AGREE MENT ABOUT THE VALIDITY OF THE PERIOD OF F.Y. 2004-05. LD. CIT(A) CONFIRMED T HE FINDING OF ASSESSING OFFICER ON THE BASIS THAT APPELLANT IS THE OWNER OF THE PROPERTY. THEREFORE, IN THE ABSENCE OF ANY EVIDENCE THAT THE PROPERTY WAS L YING VACANT, THE ASSESSING OFFICER HAD CONFIRMED THE ADDITION. LD. COUNSEL FO R THE ASSESSEE SUBMITTED THAT IN RESPECT OF THE ISSUE OF OWNERSHIP IN THE PRECEDI NG YEAR, THE ISSUE TRAVELLED UP TO THE STATE OF THE TRIBUNAL. IN ITA NO. 1039/AHD/ 2008 IN ASSESSEES OWN CASE FOR A.Y. 2004-05, LD. COUNSEL SUBMITTED THAT THE AD DITION OF RS.5,85,000/- WAS MADE U/S. 69 IN RESPECT OF AMOUNTS STATED TO BE INV ESTED AND THE PROPERTIES LEASE TO M/S. PRABHAT AUTOMATION AND THE HONBLE TRIBUNAL HAS HELD THAT THE ASSESSEE HAD MERELY POSSESSED THE RIGHT THEREOF WHICH IS NOT EQUIVALENT TO OWNERSHIP RIGHT THOUGH THE ASSESSEE IS DESCRIBED AS OWNER IN THIS CASE, WE FIND THAT THE ASSESSING OFFICER HAD MADE NO EFFORT TO FIND OUT WH ETHER THE PARTICULAR PROPERTY WAS VACANT, DURING YEAR UNDER CONSIDERATION. UNDER THESE FACTS, WE DO NOT SEE ANY REASON TO SUSTAIN THE FINDING OF AUTHORITIES BE LOW. HENCE, THE ASSESSING ITA NO. 827/AHD/09A.Y.05-06(URVI M KOTHARI VS. ITO) PAGE 8 OFFICER IS DIRECTED TO DELETE THE ADDITION MADE ON ACCOUNT OF PRESUMED INCOME RECEIVED FROM M/S. PRABHAT AUTOMATION OF RS.58,500 /-. THE GROUND NO.1 & 2 OF THE ASSESSEES APPEAL ARE PARTLY ALLOWED. 8. GROUND NOS. 3 & 4 ARE GENERAL IN NATURE NEEDS NO ADJUDICATION. 9. IN THE RESULT, THE APPEAL OF ASSESSEE IS PARTLY ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 24/09/2015 SD/- SD/- ( MANISH BORAD) (KUL BHARAT) ACCOUNTANT MEMBER JUDICIAL MEMBER S.K.SINHA / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. ! '# $ / CONCERNED CIT 4. $ - / CIT (A) 5. %&'(('# , '# , ! / DR, ITAT, AHMEDABAD 6. '+,-. / GUARD FILE. BY ORDER/ , / '# , !