KASHINATH TAPURIAH, KOLKATTA V. DCIT CEN CIR 2, MUMBAI

ITA 8339/MUM/2011

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4086 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 4 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 07-07-2015
• Assessment Year: 2001-2002
• Appeal Filed On: 09-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KADAMBARI DAVE
• Assessee Lawyers: CHETAN KARIA; HARESH P KENIA
• Keywords: Unexplained expenditure; Recovery proceedings; Business expenditure; Search and seizure; Loose papers; Document seized; Opportunity of being heard; Additional evidence; Cost of acquisition; Difference of opinion; Corroborative evidences; Onus to prove; Documents seized; Change of opinion
• Section: 69C; 143(3); 142(1); 153A; 37(1); 80G; 32; 131; 68; 69; 27; 56; 63; 132; 144; 11; 15; 139

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 S . APPELLANT RESPONDENT A.Y S . 1. 3815 TO 3821/M/10 KASHINATH TAPURIAH 9, ROWDON STREET, UDAYANCHAL BUILDING, FLAT NO. 20, 5 TH FLOOR, KOLKATA 700 017 PAN : ABUPT 5665 K DY. CIT, CENTRAL CIRCLE - 2, NEW CGO BLDG., M. K. ROAD, MUMBAI - 400 020 2001 - 02 TO 2007 - 08 2. 8339 TO 8345/M/11 KASHINATH TAPURIAH DY. CIT, M UMBAI - DO - / APPELLANT BY : SHRI CHETAN KARIA & SHRI HARESH P. KENIA / RESPONDENT BY : SHRI GIRISH DAVE & MS.KADAMBARI DAVE / DATE OF HEARING : 1 7 .0 2 .201 6 / DATE OF PRONOUNCEMENT : 25 .0 4 .2016 / O R D E R PER SANJAY ARORA, A. M.: THE INSTANT APPEALS AGITAT E SEPARATE ORDERS BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 36, MUM BAI ('CIT(A)') OF EVEN DATE (26.2. 2010) DISMISSING THE ASSESSEES' APPEALS CONTESTING HIS ASSESSMENTS UNDER SECTION 15 3A R /W S. 143 (3) OF THE INCOME TAX ACT, 1961 ('THE ACT') FOR ASSESSMENT YEARS (A.YS.) 2001 - 02 TO 2006 - 07 AND U/S. 144 FOR 2007 - 08. THE OTHER SET OF SEVEN APPEALS IS IN RELATION TO THE PENALTY U/S. 271(1)(C) FOR THE SE YEARS. THE APPEALS RAISING COMMON ISSU ES, WERE TAKEN UP FOR HEARING , AND WERE ACCORDINGLY HEARD TOGETHER. 2 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT QUANTUM ASSESSMENTS 2. THE ASSESSMENTS PRESENTLY UNDER APPEAL BEFORE US (AS WELL AS THE CORRESPONDING PENALTY APPEALS) ARE CONSEQUENT TO A SEARCH ACTION U/S. 132(1) OF THE ACT AT THE ASS ESSEES DIFFERENT, AS IT APPEARS, SHORT STREET AND CAMAC STREET PREMISES, AT KOLKATA ON 05.1.2007. THE SAME FORMED PART OF A CONCERTED ACTION BY THE REVENUE ON HASSAN ALI KHAN AND OTHER RELATED PARTIES AT DIFFERENT PLACE ACROSS INDIA. THE FIRST FOUR GROUND S OF APPEAL, COMMON FOR ALL THE YEARS, AS UNDER, RAISE LEGAL/JURISDICTIONAL ISSUES, AND ARE ACCORDINGLY TAKEN UP FIRST, I.E., PRIOR TO THE OTHER GROUNDS AGITATING TO THE VARIOUS ADDITIONS/DISALLOWANCES ON MERITS: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO APPRECIATE THAT THE ASSESSMENT ORDER U/S. 143(3) R. W. S. 153A IS WITHOUT JURISDICTION AND BAD IN LAW. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT GRANTING A REASONABLE AND SUFFICIENT OPPORTU NITY OF BEING HEARD T O THE APPELL ANT. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO APPRECIATE THAT THE LEARNED ASSESSING OFFICER HAD RELIED ON INCOMPLETE INVESTIGATION AND HAD ALSO FAILED TO BRING ALL EVIDENCES AND FINDINGS OF INVESTIGATION ON RECORD AND ERR ED IN NOT DIRECTING THE LEARNED ASSESSING OFFICER TO OBTAIN FINDINGS OF INVESTIGATIONS MADE BY ENFORCEMENT DIRECTORATE HAVING RELIED ON THE INFORMATION PROVIDED BY THE SAID DEPARTMENT. 4. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO APPRECI ATE THAT THE LEARNED ASSESSING OFFICER HAD NOT GRANTED REASONABLE AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE APPELL A N T. 3. 1 THE PLEADINGS WITH REGARD TO THE ASSESSMENT BEING WITHOUT JURISDICTION REVOLVE AROUND CANVASSING THE SCOPE OF THE ASSESSMEN T, CLAIMED , RELYING ON THE DECISION IN THE CASE OF CIT VS. CONTINENTAL WAREHOUSING CORPORATION [2015] 374 ITR 645 (BOM), TO BE RESTRICTED WHERE THE ASSESSMENT IS NOT PENDING (AS ON THE DATE OF SEARCH U/S.132(1) OR REQUISITION U/S. 132A), SO THAT IT DOES NO T ABATE , TO THE BOOKS OF ACCOUNT, DOCUMENTS AND MATERIALS, ETC. NOT PRODUCED , BUT FOUND DURING THE COURSE OF SEARCH OR REQUISITION, 3 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT OR TO THE UNDISCLOSED INCOME DISCOVERED AS A RESULT OF SEARCH OR REQUISITION. THE REVENUES RESPONSE IS THAT EXCEPT FOR A.Y. 2002 - 03, THERE HAS BEEN NO ASSESSMENT EITHER U/S. 143(1) OR 143(3) AT ANY TIME PRIOR TO THE DATE OF SEARCH (05.1.2007) AND, ACCORDINGLY, THE SAID DECISION BY THE HON'BLE JURISDICTIONAL HIGH COURT SHALL NOT APPLY THERETO. THIS IN FACT IS THE ADMITTED POSIT ION, REFLECTED IN THE TABULAR CHART PREPARED AND FURNISHED BY THE ASSESSEE (APB 10/PG. 1781). THE LIMITATION ON THE SCOPE OF THE ASSESSMENT WOULD, THEREFORE, ONLY BE FOR A.Y. 2002 - 03, FOR WHICH ASSESSMENT STANDS MADE VIDE ORDER U/S. 143(3) DATED 31.3.2005. THE ASSESSEES ARGUMENT AND, CONSEQUENTLY, HIS OBJECTION IS THUS LARGELY TO NO AVAIL. WE MAY THOUGH CLARIFY THAT HIS CHALLENGE IS THUS NOT TO THE JURISDICTION TO ASSESS PER SE , TOWARD WHICH THE PROVISION OF SECTION 153A IS PLAINLY CLEAR, NOR ADVERSELY COM MENTED UPON IN CONTINENTAL WAREHOUSING CORPORATION (SUPRA), BUT TO THE SCOPE OF THE ASSESSMENT U/S. 153A WHERE IT FOLLOWS AN UNABATED ASSESSMENT, I.E., WHICH HAS ATT AI N E D FINALITY. 3.2 THE ASSESSEE IN THIS REGARD HAD ALSO ASSUMED ANOTHER ARGUMENT BEFORE T HE FIRST APPELLATE AUTHORITY, I.E., AS TO NON - ISSUE OF NOTICE U/S. 143(2), TO WHICH PASSING REFERENCE WAS ALSO MADE BEFORE US AND , ACCORDINGLY, RESPONDED TO BY THE LD. SPECIAL COUNSEL, SH. GIRISH DAVE, BY PLACING RELIANCE ON THE DECISION IN THE CASE OF AS HOK CHADDHA VS. ITO [2011] 337 ITR 399 (DEL) , HOLDING THE ISSUE OF NOTICE U/S. 143(2) AS NOT MANDATORY IN THE CASE OF AN ASSESSMENT U/S. 153A AND, B ESIDES, ON A THIRD MEMBER DECISION IN SUMANLATA BANSAL VS. ASST. CIT (IN ITA NOS. 525 TO 530/MUM/2008 DATED 20.5.2015 - REPORTED AT 2015 - TIOL - 1053 - ITAT - MUM - TM) , FOLLOWING THE SAME . T HE FACTUAL POSITION IS THAT THE ASSESSEE DID NOT FILE ANY RETURN IN RESPONSE TO THE NOTICE U/S. 153A. HOW COULD THEN, IT IS WONDERED , HE CLAIM NON - ASS UMPTION OF PROPER JURISDICTION B Y THE ASSESSING OFFICER ( A.O. ) FOR WANT OF NOTICE U/S. 143(2) ? TRUE, THE ASSESSEE CLAIMS TO HAVE COMMU NICATED TO THE A.O., VIDE LETTER DATED 31.3.2008, TO TREAT THE RETURN/S ORIGINALLY FILED U/S. 139 AS IN RESPONSE TO NOTICE U/S. 153A. SO, HOWEVER, WE DO N OT FI ND ANY MERIT THEREIN AS THE NON - FURNISHING OF A RETURN IN RESPONSE TO NOTICE 4 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT U/S. 153A STANDS CONFIRMED IN VIEW OF THE LEVY OF PENALTY U/S. 271F OF THE ACT (FOR A.YS. 2001 - 02 TO 20 06 - 07), SINCE CONFIRMED BY THE T RIBUNAL (IN ITA NO S. 2919 - 2929/MUM/2009 DATED 16.4.2010 /APB - 9, PGS. 1771 - 1773 ) , AND WHICH ORDER STANDS ADMITTEDLY ACCEPTED BY THE ASSESSEE . F OR A.Y. 2007 - 08, ADMITTEDLY NO ORIGINAL RETURN U/S. 139 WAS FILED (APB 10, PG. 1781). T HE QUESTION OF THE ASSESSEE REQUESTING THE A.O. FOR TREATING THE SA ME AS IN COMPLIANCE TO NOTICE U/S. 153A , THEREFORE , DOES NOT ARISE FOR THAT YEAR . THE ASSESSMENT FOR A.Y. 2007 - 08 I S IN FACT MADE U/S. 144; THERE BEING NO COMPLIANCE OF NOTICE U/S. 142(1). THE IMPUGNED ASSESSMENT, AND FOR ALL THE YEARS, CAN THUS NEITHER BE SAID TO BE WITHOUT JURISDICTION OR BAD IN LAW. THE ONLY LIMITATION IS O N ITS SCOPE, WHICH COULD BE CLAIMED ONLY FOR A.Y. 2002 - 03, WHICH WOULD THEREFORE BE EXAMINE D WHILE CONSIDERING THE APPEAL FOR THAT YEAR. WE DECIDE ACCORDINGLY, DISMISSING G D . 1 FOR AL L THE YEARS. 4. NEXT , IS THE GRIEVANCE IN BEING NOT ALLOWED A REASONABLE OPPORTUNITY OF BEING HEARD BY THE LD. CIT(A). THE THRUST OF THE ASSESSEES CASE QUA THIS G ROUND IS THE NON ADMISSION OF ADDITIONAL EVIDENCE , SINCE SOUGHT TO BE ADDUCED BY HIM BEFORE THE LD. CIT(A) (APB 1, PG. 223 - 273, WITH PAGE 222 BEARING THE INDEX). HOW COULD THEN, WE WO NDER, IT BE CONSIDERED AS A NON - ALLOWANCE OF PROPER OPPORTUNITY BY THE FIRST APPELLATE AUTHORITY, WHO IN FACT ALSO SOUGHT A REMAND REPORT FROM THE A.O., PLACED AT AP B 1 (PGS. 124 - 125) . THE DECISION TO ADMIT, OR NOT T O, THE SAID ADDITIONAL EVIDENCE IS A SUBJECT MATTER OF HIS APPELLATE ORDER, WHICH COULD BE IMPUGNED ON MERITS ON ANY SC ORE, INCLUDING ON THAT ASPECT. THE ASSESSEE HAS IN FACT MADE A SIMILAR PRAYER BEFORE U S AS WELL, PER HIS SUBMISSIONS I N PURSUANCE TO G ROUNDS 2 TO 4, AND WHICH WE SHALL CONSIDER SEPARATELY. 5.1 GROUNDS 3 AND 4 OVERLAP , AND WERE ACCORDINGLY ARGUED TOGETHER. THE SAME ASSAIL THE IMPUGNED ORDER, AGAIN, FOR WANT OF PROPER OPPORTUNITY TO THE ASS ESSEE TO EXPLAIN AND PRESENT HIS CASE BEFORE THE ASSESSING AUTHORITY IN - AS - MUCH AS THE LD. 5 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT CIT(A) FAIL ED TO APPRECIATE THIS ASPECT, AS WELL FOR HAVING COMPLETED THE ASSESSMENT WITHOUT AWAITING FOR THE COMPLETION OF THE INVESTIGATION IN THE MATTER BY THE DI RECTORATE OF ENFORCEMENT, THE AGENCY OF THE GOVERNMENT OF INDIA (GOI) INVESTIGATING ECONOMIC OFFEN C ES. WITH REGARD TO THE LAT T ER ASPECT, THE SAME ONLY NEEDS TO BE STATED TO BE REJECTED, THE PROCEEDINGS UNDER THE ACT BEING INDEPENDENT STATUTORY PROCEEDINGS, WHICH ARE TO BE COMPLETED IN A TIME BOUND MANNER, ON THE BASIS OF AND UPON CONSIDERING THE MATERIAL (BROUGHT) ON RECORD AND THE EXPLANATION /S FURNISHED IN THE MATTER, AND WHICH , NEEDLESS TO ADD, IS AN ASPECT THAT CONCERNS THE MERITS OF THE ASSESSMENT /S . I TS COMPLETION, IMPENDING THE INVESTIGATION BY ENFORCEMENT DIRECTORATE (ED), WHICH ALSO DOES NOT FORM PART OF THE REVENUE, CANNOT BE FAULTED WITH. REFERENCE IN THIS CONTEXT MAY ALSO BE MADE TO THE DETAILED OBSERVATIONS BY THE T RIBUNAL IN THE MATTER VIDE PAR AS 11.2, 12 A ND 128 O F ITS ORDER IN HASSAN ALI KHAN VS. DY. CIT (IN ITA NO S . 4156 - 4162 /M UM / 20 1 0 DATED 29.2.2016 ). 5.2 AS REGARDS THE PLEA AS TO NON - ALLOWANCE OF PROPER OPPORTUNITY BY THE A.O., THE SAME WE FIND STANDS RAISED BEFORE THE FIRST APPELLATE AU THORITY, AND DULY DEALT WITH HIM IN HIS ORDER ( AS VIDE G ROUND 7 AND AT PARA 18 FOR A.Y. 2001 - 02), STATING THAT NO SUBMISSION IN THIS REGARD WAS MADE BEFORE HIM EVEN AS THE A.O. HAD ALLOWED SUFFICIENT OPPORTUNITY TO THE ASSESSEE. THE LD. AUTHORIZED REPRESEN TATIVE (AR) WOULD TOWARD THIS STATE THAT THE FIRST EFFECTIVE NOTICE SEEKING DETAILS AND CLARIFICATIONS ON THE SEIZED MATERIALS WAS ISSUED TO THE APPELLANT ONLY ON 07. 1 1.2008, WHILE THE INFORMATION RECEIVED FROM THE ED COMMUNICATED, ALSO SHOW CAUSING THE AS SESSEE IN ITS RESPECT, ONLY ON 19.12.2008. BOTH THESE WERE, THUS, TOWARD THE FAG END OF THE ASSESSMENT, LEAVING INSUFFICIENT TIME TO RESPOND TO THE DETAILED QUESTIONNAIRE/ REQUISITION. THIS IS SUPPORTED BY A PLEA FOR ADMISSION OF ADDITIONAL EVIDENCES. THE R EVENUE RESPOND S BY LISTING THE SEVERAL NOTICES ELEVEN IN NUMBER, ISSUED U/S. 142(1), MENTIONING THE DATES OF THE IR ISSUE AND SERVICE (INCLUDING ONE U/S. 143(2) DATED 02.12.2008). 6 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT THE MATTER , THOUGH PERTINENT, IS PURELY FACTUAL IN - AS - MUCH AS IF ADEQUATE O PPORTUNITY S TANDS NO T ALLOWED BY THE ASSESSING AUTHORITY IT MAY VITIATE THE PROCEEDINGS. THE CHARGE, HOWEVER, AS WE FIND, IS MISPLACED. THE ASSESSMENT ORDER (VIDE PARAS 3 TO 6.4/PGS. 2 - 7 FOR A.Y. 2001 - 02) DEALS EXTENSIVELY WITH THE PROCEEDINGS AS TRANSPIRE D BEFORE THE ASSESSING AUTHORITY, WITH THE ASSESSEE BEING CONVEYED, VIDE LETTER DATED 24.4.2008 , THAT HE MAY COLLECT THE COPIES OF THE SEIZED DOCUMENTS AS MAY BE DEEMED RELEVANT, AND THE COPIES BEING FURNISHED TO THE ASSESSEES REPRESENTATIVE SHRI PRADEEP SHAH (POWER OF ATTORNEY IN WHO SE FAVOUR WAS SUBMITTED ON 17.9.2008), EVEN AS HIS AUTHORIZATION ONLY EXTEND ED TO REPRESENTATION AND NOT TO COLLECT/MAKE COPIES, ALSO ADVERTING TO THE ORDER SHEET ENTR IES DATED 25.9.2008, 17.11.2008 AND 21.11.2008. TRUE, A DET AILED QUESTIONNAIRE STANDS ISSUED LA TE INTO THE ASSESSMENT PROCEEDINGS, WHICH WERE ON I N PARALLEL FOR ALL THE YEARS UNDER REFERENCE, SIFTING THROUGH THE PLETHORA OF MATERIALS GATHERED. THE ASSESSEE WHOSE CASE IS ONE OF DENIAL, EITHER BEFORE OR SUBSEQUENT TO THE SAID NOTICES , WAS, HOWEVER, RECALCITRANT. HOW , THEN , IS THE SAID DATE RELEVANT THE ASSESSEE ONLY DENYING ANY KNOWLEDGE OF ANY ACCOUNT, THROUGHOUT DENYING HIS ASSOCIATION WITH HASSAN ALI KHAN ( HAK ) OR OF MAINTAINING ANY FOREIGN BANK ACCOUNT? THE I NFORMATION WITH REGARD THERETO COMPRISES THE BULK OF QUESTIONNAIRE BY THE REVENUE. THE QUERIES IN RESPECT OF DOMESTIC TRANSACTIONS, WE OBSERVE HAVE IN FACT BEEN RESPONDED TO, AS VIDE LETTER S DATED 12.11.2008, 01.12.2008 , 23.12.2008 & 26.12.2008 BY THE ASSE SSEE. THIS IS ALSO WHAT THE A.O. STATES IN SUBSTANCE VIDE HIS REMAND REPORT DATED 04.2.2010 TO THE LD. CIT(A) (APB 1 , PGS. 124 TO 125). THE ADDITIONAL EVIDENCE IS ALSO QUA TRANSACTIONS IN OR THROUGH SUCH FOREIGN BANK ACCOUNTS. THEN, AGAIN, THE ASSESSEE COU LD HAVE FURNISHED HIS EXPLANATION / S BEFORE THE FIRST APPELLATE AUTHORITY, MEETING ANY DEFICIENCY IN PRESENTING HIS CASE EARLIER. GROUND AFTER GROUND, WE FIND THE LD. CIT(A) TO STATE OF EITHER THE ASSESSEE REITERATING HIS EXPLANATION BEFORE THE A.O. OR NOT MAKING ANY SUBSTANTI VE REPLY. NO W ONDER, HEAVY EMPHASI S IS LAID DOWN BEFORE US ON ADMISSION OF ADDITIONAL EVIDENCE, PLACING RELIANCE ON THE TWO LETTERS BY THE ASSESSEE (I.E., DATED 13.12.2011 AT APB 6, PGS. 936, 7 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT 938) AND BY HIS WIFE, CHANDRIKA TAPURIAH (CT ) DATED 12.9.2013 (AT APB 5, PGS. 853 - 854), LISTING EIGHT FOREIGN BANK ACCOUNTS IN THEIR NAMES. THE SECOND LETTER , ISSUED IN RESPONSE TO A REQUISITION U/S. 142(1) TO FURNISH COPIES OF SUCH ACCOUNTS ( A PB PG. 877 ) , IS ACCOMPANIED BY EIGHT SEPARATE INSTRUCTIO NS DATED 12.9.2013 (ONE DATED 20.9.2013 ) ( APB 5, PGS. 855 870) BY THE ASSESSEE, IN THE FORMAT SUGGESTED BY THE D EPARTMENT, TO THE RESPECTIVE BANKS FOR FURNISHING ALL THE ACCOUNTS RECORDED. BOTH THE LETTERS ARE MUCH AFTER THE COMPLETION OF THE ASSESSMENT PROCEEDINGS, NAY , EVEN AFTER THE CONCLUSION OF THE PROCEEDINGS AT THE FIRST APPELLATE STAGE. HOW, THEN, CAN THEY BE OF ANY CONSEQUENCE IN - SO - FAR AS THE ASSESSEES CHARGE OF NO N - GRANT OF PROPER OPPOR TUNITY BY THE A.O. IS CONCERNED? HOW, RATHER, COULD THE R EVENUE MODIFY THE IMPUGNED ASSESSMENTS IN ANY MANNER. IN FACT, THESE ARE MERE REQUISITIONS (ON THE RESPECTIVE BANKS), NOT ACCOMPANIED BY THE BANK ACCOUNT STATEMENTS, SO THAT BY ITSELF THIS IS OF LITTLE MOMENT AS FAR AS THE ASSESSMENTS ARE CONCERNED. ON THE CONTRARY, IT ESTABLISHES NON - CO - OPERATION A S WELL AS A DELIBERATE DESIGN TO MISLEAD THE REVENUE. A LL THAT THE SAID LETTERS MAY THEREFORE EXHIBIT , TAKING A MAGNANIMOUS AND LIBERAL VIEW OF THE MATTER, IS OF A CHANGE OF HEART AT THE END OF THE ASSESSEE , EVEN IF BELATED LY, AND CORRESPONDINGLY A N ATTEMPT TO CO - OPERATE WITH THE REVENUE. I N THIS REGARD, GIVEN THE SECRECY/PR IVACY LAW S OF THE RELEVANT COUNTRIES, EVEN PERHAPS THE LETTER OF DECEMBER, 2011, NOT ACCOMPANIED BY A S IMILAR REQUISI TION ON THE RESPECTIVE BA NKS, DO NOT AMOUNT TO MUCH, EXCEPT PERHAPS SIGNIFY A WILLINGNESS TO CO - OPERATE AND M ISLEAD NO LONGER, I.E., ASSUMING , AGAIN, THE LIST FURNISHED TO BE COMPLETE. THE SECOND LETTER, AFTER NEARLY TWO YEARS OF THE FIRST ONE, AND ONLY AT THE INSTANCE OF THE REVE NUE, IS ONLY A FOLLOW UP OF THE FIRST LETTER. WE IN FACT OBSERVE A LACK OF EARNESTNESS ON THE PART OF THE D EPARTMENT AS WELL, WHICH SHOULD HAVE ACTED WITH A MUCH MORE ALACRITY; IT REQUISITIONING THE SAID INFORMATION ONLY VIDE ITS LETTER DATED 11.7.2013. TR UE, THE ASSESSMENTS HAD BEEN ALREADY FRAMED, YET , THE SAME WERE PENDING IN APPEALS, SO THAT THE INFORMATION IS RELEVANT, BESIDES THE ACCOUNTS , PARTICULARLY WHERE NOT DISCLOSED, BEING IN V IOL ATION OF OTHER LAWS AS WELL. SO, HOWEVER, THE BURDEN OF PROOF, IN VIEW OF 8 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT THE MATERIALS IN THE PO S S ESSION OF THE REVENUE, DULY CONFRONTED TO THE ASSESSEE, CLEARLY IS ON THE ASSESSEE, AND WHICH REMAINS COMPLETELY UN - DISCHARGED. THE ASSESSEES CAS E, WITH REGARD TO THE RELEVANT G ROUND S , IN VIEW OF THE FOREGOING, RATHER THAN BEING PROVED, GETS DISPROVED, SO THAT THE SAME IS WITHOUT MERIT. 5.3 NEXT, WE MAY EXAMINE PLEA FOR ADMISSION OF ADDITIONAL EVIDENCE. THE ISSUE WAS ARGUED AT LENGTH BEFORE US. RULE 29 OF THE INCOME - TAX (APPELLATE TRIBUNAL) RULES, 1963, WHICH IS A PROVISI ON REGARDING PRODUCTION OF ADDITIONAL EVIDENCE BEFORE THE TRIBUNAL, READS AS UNDER: 29. PRODUCTION OF ADDITIONAL EVIDENCE BEFORE THE TRIBUNAL. THE PARTIES TO THE APPEAL SHALL NOT BE ENTITLED TO PRODUCE ADDITIONAL EVIDENCE EITHER ORAL OR DOCUMENTARY BEFOR E THE TRIBUNAL, BUT IF THE TRIBUNAL REQUIRES ANY DOCUMENTS TO BE PRODUCED OR ANY WITNESS TO BE EXAMINED OR ANY AFFIDAVIT TO BE FILED TO ENABLE IT TO PASS ORDERS OR FOR ANY OTHER SUBSTANTIAL CAUSE, OR, IF THE INCOME - TAX AUTHORITIES HAVE DECIDED THE CASE WIT HOUT GIVING SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO ADDUCE EVIDENCE EITHER ON POINTS SPECIFIED BY THEM, OR NOT SPECIFIED BY THEM, THE TRIBUNAL, FOR REASONS TO BE RECORDED, MAY ALLOW SUCH DOCUMENT TO BE PRODUCED OR WITNESS TO BE EXAMINED OR AFFIDAVIT TO B E FILED OR MAY ALLOW SUCH EVIDENCE TO BE ADDUCED. RELYING ON THE DECISION BY THE HONBLE APEX COURT IN THE CASE OF K. VENKATARAMIAH VS. A. SEETHARAMA REDDY AIR 1963 SC 1526, 1530, IT WAS SUBMITTED THAT THE SCOPE OF THE WORDS SUBSTANTIAL CAUSE OCCURRING IN R ULE 29 STANDS EXPLAINED THEREIN TO MEAN THAT WHERE EVIDENCE ON RECORD IS SUFFICIENT TO ENABLE THE COURT TO PASS AN ORDER, IT MAY YET ADMIT ADDITIONAL EVIDENCE FOR ANY OTHER SUBSTANTIAL CAUSE. THE LD. SPECIAL COUNSEL FOR THE REVENUE WOULD RELY ON THE D ECISION IN THE CASE OF IN IBRAHIAM UDDIN AND ANR. [2012] 8 SCC 148, SPECIFICALLY REFERRING TO PARA 41 (AT PAGE 168 THEREOF) , TO SAY THAT THE POWER TO ADMIT ADDITIONAL EVIDENCE U /R. 29 FOR AN Y OTHER SUBSTANTIAL CAUSE IS TO BE READ IN CONTE X T OF THE EARLIE R WORDS REQUIRES TO ENABLE IT TO PASS ORDER S , AND CANNOT BE ADMITTED WHERE EVIDENCE ON RECORD ENABLES THE TRIBUNAL TO PASS AN ORDER. THE ARGUMENT RAISED BY THE LD. AR IS EVEN PRIMA FACIE NOT VALID. IF THE WORDS 9 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT SUBSTANTIAL CAUSE IN RULE 29 ARE NOT TO BE READ IN THE CONTEXT OF THE WORDS REQUIRES TO ENABLE IT TO PASS AN ORDER, WHICH IS IMMINENT FROM A PLAIN READING OF THE RULE, HOW, IT MAY BE ASKED, IS THE SAME TO BE READ AND UNDERSTOOD AS ? THAT IS, WHAT THEN WOULD INFORM OR GUIDE THE UNDERSTANDING OR THE MEANING OF THE SAID WORDS ? SURELY, IF THE SAID WORDS HAD RECEIVED A DIFFEREN T OR EXPANDED MEANING TO THE SAID WORDS, THE A PEX C OURT WOULD HAVE EXPLAINED THE SAME, DILATING ON THE EXACT SCOPE OF THE SAID WORDS , AND HOW THE SAME ARE TO BE UNDERSTOOD AN D APPLIED, SO THAT THE SAME COULD ONLY MEAN TO BE ABLE TO DO JUSTICE AS BETWEEN THE PARTIES, IN THE CONTEXT OF THE MATTER BEFORE IT . THE SCOPE OF THE WORDS SUBSTANTIAL CAUSE OCCURRING IN RULE 29, WHICH IS SIMILAR IN TERMS TO ORDER 41, RULE 27(1) OF THE CODE OF CIVIL PROCEDURE, 1908, WAS , WITH REFERENCE TO THE DECISION IN THE CASE OF K. VENKATARAMIAH (SUPRA) , UNDERSTOOD TO MEAN THAT THOUGH THE COURT MAY NOT STRICTLY BE SAID TO REQUIRE ADDITIONAL EVIDENCE TO PRONOUNCE THE JUDGMENT, IT STILL CONSIDERS THAT IN THE INTEREST OF JUSTICE SOMETHING WHICH REMAINS OBSCURE SHOULD BE FILLED UP, SO THAT IT COULD PRONOUNCE THE JUDGMENT IN A MORE SATISFACTORY MANNER, WHICH WOULD IN THAT CASE BE A CASE COVERED UNDER RULE 27(1)(B) OF THE SAID CODE. IN SHORT, THE POWER FOR ADMISSION OF ADDITIONAL EVIDENCE IS TO BE EXERCISED FOR A JUST AND FAIR DISPOSAL OF THE APPEAL. WE DO NOT FIND ANY DICHOTOMY BETWEEN THE TWO DECISIONS BY THE HONBLE APEX COURT CITED SUPRA. THERE IS ACCORDINGLY NO QUESTION OF THE DECISION BY IT S DIVISION BENCH IN IBRAHIAM UDDIN AND ANR. (SUPRA) OVERRIDING OR PREVAILING OVER THE LARGER (FIVE MEMBER) BENCH DECISION IN THE CASE OF K. VENKATARAMIAH (SUPRA) ; IT ONLY EXPLAINING THE LAT T ER. THE FORMER DECISION, INCLUDING PARA 41 THEREOF , IS THUS JUDICIALLY BINDIN G ON US , AND IS ACCORDINGLY TO BE CONSIDERED AS CONCLUSIVE, SETTLING THE LAW IN THE MATTER. WE MAY IN THIS REGARD ALSO PROFITABLY REFER TO THE DISCUSSION AT PARA 3.3 (PGS. 6 - 9) OF THE ORDER BY THE TRIBUNAL IN THE CASE OF HAK (SUPRA). THIS ORDER HAS IN FAC T, DUE TO THE COMMONALITY AND OVER - LAP OF THE ISSUES; RATHER, EVEN TO A LARGE EXTENT THE EVIDENCES AS WELL AS THE ARGUMENTS ADVANCED, TO BE READ IN CO NJUNCTION WITH THE SAID ORDER, TO WHICH THEREFORE FREQUENT (AND SPECIFIC) REFERENCE S STAND MADE, THE REASO NS 10 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT AND PRINCIPLE S GUIDING THE SAID DECI SION , BEING EQUALLY A PPLICABLE , INFORMING THE PRESENT DECISION AS WELL. THE POWER OF THE TRIBUNAL TO ADMIT ADDITIONAL EVIDENCE, IT NOTES WITH REFERENCE TO THE SETTLED LAW IN THE MATTER, I S STRICTLY LIMITED. RULE 29 PL ACES A TOTAL BAN ON THE PARTIES TO THE APPEAL TO PRODUCE ADDITIONAL EVIDENCE, ORAL OR DOCUMENTARY, BEFORE THE TRIBUNAL, WHICH THOUGH IS VESTED WITH JUDICIAL DISCRETION TO ALLOW PRODUCTION OF THE SAME UNDER SPECIFIED CIRCUMSTANCES , I.E., EITHER TO ENABL E IT TO PASS AN ORDER OR FOR ANY OTHER SUBSTANTIAL CAUSE, OR WHERE THE REVENUE AUTHORITIES HAD DECIDED THE CASE WITHOUT AFFORDING SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO ADDUCE THE SAME. THE LATTER ASPECT IS NOT IN DISPUTE IN THE PRESENT CASE, WHICH, IT WOUL D BE APPRECIATED , COULD NOT, WHERE SO, STRICTLY QUALIFY TO BE ADDITIONAL EVIDENCE THE ASSESSEE BEING PREVENTED TO PRODUCE IT IN THE FIRST PLACE . THE WORDS SUBSTANTIAL CAUSE, AS A HOLISTIC READING OF THE SEVERAL DECISIONS CITED AS WELL AS THE ANALYSIS I N THE CASE OF HAK (SUPRA) REFERRED TO WOULD SUGGEST, CANNOT BE READ REMOVED FROM OR DE HORS THE PURPOSE FOR WHICH AND TOWARD WHICH THE ADJUDICATION UNDER REFERENCE IS BEING MADE. AS EXPLAINED BY THE HON'BLE JURISDICTIONAL HIGH COURT IN AHMEDABAD ELECTRICIT Y CO. LIMITED VS. CIT [ 1993 ] 199 ITR 351 (BOM) (FB) , THE JURISDICTION OF THE TRIBUNAL IS NOT RESTRICTED TO THE SUBJECT MATTER OF THE APPEAL, I.E., THE POINTS CHALLENGED IN THE MEMORANDUM OF APPEAL BEFORE IT, BUT RANGES OVER THE WHOLE ASSESSMENT. IF THE EVI DENCE IS NOT TO ENABLE IT TO PASS AN ORDER IN A MORE SATISFACTORY MANNER, WITH REFERENCE TO THE ISSUE / S ARISING, WHICH REQUIRE ITS DELIBERATION AND ADJUDICATION, WHAT PURPOSE, ONE MAY ASK , WOULD IT SERVE. THE SAME HAS TO NECESSARILY RELATE TO THE ADJUDICAT ION PROCESS AND, CONSEQUENTLY, TO PROPER ADJUDICATION, I.E., THE END TO WHICH THE ENTIRE EXERCISE IS GEARED TOWARD AND A TTEMPTS TO SEEK. 5.4 THIS BRINGS US TO OUR FIRST OBSERVATION (FACTUAL) IN THE MATTER. WE FIND NO EVIDENCE WHICH WOULD ENABLE US TO ARR IVE AT A DECISION, MUCH LESS IN A SATISFACTORY MANNER. AS EXPLAINED BY THE HONBLE COURTS TIME AND AGAIN, THE ADMISSION OF ADDITIONAL EVIDENCE UNDER R ULE 29 ( WHICH IS PAR I MATERIA TO THE PROVISION OF ORDER 41, 11 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT RULE 27(1) OF THE CPC ) IS TO BE CONSIDERED AT THE STAGE OF CONSIDERING THE ISSUE ON MERITS. THE REASON IS , AGAIN, SIMPLE. IT IS ONLY UPON EXAMINING THE ISSUE ARISING BEFORE IT FOR ADJUDICATION, THAT THE TRIBUNAL COULD APPRECIATE THE IMPORT OR THE PURPORT OF THE EVIDENCE OR THE MATERIAL BEING NOW SOUGH T TO BE PRODUCED AND RELIED UPON, I.E., BY WAY OF ADDITIONAL EVIDENCE. IN OTHER WORDS, THE PROCESS NECESSARILY INVOLVES A CORRELATION BETWEEN THE EVIDENCE AND THE ISSUE /A SPECT OF ASSESSMENT UNDER EXAMINATION, I.E., IS TO BE EVIDENCE ISSUE SPECIFIC ; A PARTI CULAR EVIDENCE MAY PASS MUSTER WHILE ANOTHER NOT. APART FROM, HOWEVER, BROADLY MENTIONING THE CONTENTS OF VARIOUS PAPER - BOOKS STATED AS CONT A INING ADDITIONAL EVIDENCES, NO SPECIFIC PLEADINGS WERE MADE QUA AN Y EVIDENCE, SA VE ONE, AND WHICH , IT WOULD BE APPR ECIATED , HAS TO BE WHILE PLEADING A SPECIFIC ISSUE/GROUND OF APPEAL. THE MATTER, GIVEN THE LAW IN THE MATTER, IS CLEARLY FACTUAL, REQUIRING THE CONSIDERATION BY THE APPELLATE AUTHORITY IF PARTICULAR EVIDENCE SHALL BETTER SERVE CAUSE OF JUSTICE IN - SO - FAR AS IT RELATES TO ADJUDICATION OF ISSUE/S UNDER REFERENCE. THERE IS ACCORDINGLY NO SCOPE FOR GENERALIZE D PLEADINGS , AS MADE. THE ONLY EVIDENCE TO WHICH OUR SPECIFIC ATTENTION WAS DRAWN WITH REFER ENCE TO AN ISSUE IS THE ACCOUNT STATEMENTS (OF BANK ACCOUNT NO. 835 - 357 - 902 - 3 WITH CREDIT SU I SSE PRIVATE BANKING, ZURICH) FOR THE PERIOD 01.7.2001 TO 28.12.2006 (APB - 5, PGS. 883 - 913) . THE SAME WOULD, HOWEVER, BE OF NO AVAIL AS, AS POINTED OUT DURING HEARING BY SHRI DAVE, WITH REFERENCE TO THE DISCLAIMER QUALIFYING THE SAID STATEMENT (AT PG . 890 ), THAT THE SAID STATEMENT IS NOT SUITABLE FOR TAX PURPOSES . ALSO, AS ARGUED BY HIM , THE SAME ORIGINATING IN A FOREIGN TERRITORY, IS NOT APOSTIL L ED AND , ACCORDINGLY , CANNOT BE ACCEPTED IN EVIDENCE. THIS, THEN, MAKES A SHORT SHRIFT OF THE FORE - GOING DISCUSSION ON THE LAW IN THE MATTER, WHICH WAS YET PREFERRED BY US IN VIEW OF THE LENGTH Y ARGUMENTS IN THE MAT T ER CANVASSED BEFORE US. NO WONDER, THE LD. AR HAS CHOSEN NOT TO MAKE A SEPARATE AND SPECIFIC PRAYER FOR ADMISSION OF ADDITIONA L EVIDENCE U /R. 29, AS OUGHT TO BE AND IS GENERALLY THE CASE, BUT SEEKS TO MAKE OUT A CASE IN ITS RESPECT, AND ARGUES THE SAME WITH REFERENCE TO GROUNDS OF APPEAL, CONTESTING THE NON - ALLOWANCE OF PROPER OPPORTUNITY BY THE ASSESSING AND THE FIRST APPELLATE AUTHORITY. 12 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT THE TWO ASPECTS, SAVE TO THE EXTENT THAT ARE CLEARLY INTERRELATED, ARE S EPAR ATE AND DISTINCT . IF THERE HAS BEEN NON - ALLOWANCE OF PROPER OPPORTUNITY BY THE REVENUE AUTHORITIES, AN ASPECT CONSIDERED BY US EARLIER, THAT BY ITSELF IS A GROUND SUFFIC IENT FOR SEEKING A SET ASIDE QUA THE R ELEVANT ISSUE/S. T HE SAME, DEPENDING ON THE FACTS AND CIRCUMSTANCES OF THE CASE , COULD BE A N OPEN SET ASIDE OR F O R FURNISHING S O ME SPECIFIC EVIDENCES, EITHER WAY SERVING THE APPELLANTS CAUSE. RATHER, THE ADMISSION OF ADDITIONAL EVIDENCE AT FIRST APPELLATE STAGE ITSELF INCLUDES, AS A CONSIDERATION , THE REFUSAL TO OR NON - GRANT OF SUFFICIENT OPPORTUNITY BY THE ASSESSING AUTHORITY TO PRODUCE THE SAME, BESIDES BEING PREVENTED BY SUFFICIENT CAUSE TO BE ABLE TO DO SO, BOTH GE NERALLY AS WELL AS WHICH THE ASSESSEE WAS SPECIFICALLY CALLED UPON TO ( R ULE 46A(1) OF THE INCOME TAX RULES, 1962). THAT APART, THAT DOES NOT RESTRAIN THE FIRST APPELLATE AUTHORITY TO, TO ENABLE HIM TO DISPOSE AN APPEAL OR FOR ANY SUBSTANTIAL CAUSE, INCLUDI NG THE ENHANCEMENT OF ASSESSMENT, ADMIT THE EVIDENCE FOR THE FIRST TIME. THE DENIAL OF OPPORTUNITY TO FURNISH EVIDENCE BY EITHER THE ASSESSING OR THE FIRST APPELLATE AUTHORITY, IN EXERCISE OF THEIR POWER TO ADJUDICATE, IS THUS A SEPARATE GROUND - NOT UNDER CHALLENGE BEFORE US, FROM THAT OF NON - ALLOWANCE OF OPPORTUNITY , EXCEPT WHERE THE LACK OF OPPORTUNITY ITSELF RELATES TO OR IS TOWARD NON - PRODUCTION OF THE EVIDENCE , SO AS TO FORM A SUB - SET THEREOF. THAT THERE HAS BEEN NO FAILURE TO PROVIDE PROPER OPPORTUNI TY TO THE ASSESSEE TO PRESENT HIS CASE BEFORE THEM BY THE AUTHORITIES BELOW, I.E., AT THE ASSESSMENT AND THE FIRST APPELLATE STAGE, HAS BEEN FOUND BY US AS A FACT. THE WHOLE PURPORT OF THE FOREGOING IS TO EXPLAIN THAT, SAVE AND TO THE EXTENT FACTUALLY INTE RRELATED FOR WHICH THE LAW ITSELF PROVIDES, NON - GRANT OF OPPORTUNITY TO PRESENT ITS CASE BY THE REVENUE AND THE ADMISSION OF ADDITIONAL EVIDENCE BEFORE THE TRIBUNAL, A R E SEPARATE AND DISTINCT ASPECTS OF THE APPELLATE PROCEEDINGS BEFORE IT. THIS CONSTITUT E OUR SECOND OBSERVATION IN REPELLING THE CASE FOR THE LAT T ER BEFORE US, THE FIRST BEING TOWARD THE MATTER BEING , IN SUBSTANCE , FACTUAL. WE HAVE, IT MAY BE ADDED, ALREADY FOUND NO MERIT IN THE ASSESSEES ARGUMENT OF THE REVENUE TO HAVE AWAITED THE CONCLUSI ON OF THE PROCEEDINGS BEFORE THE ED PRIOR TO THE COMPLETION OF THE ASSESSMENT UNDER THE ACT 13 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT AND, CONSEQUENTLY, KEEPING EVEN THE APPELLATE PROCEEDINGS WHICH ARE ONLY A N EXTENSION OF THE APPELLATE PROCEEDINGS, IN ABEYANCE , ON THAT SCORE. THIS, THEN, BRING S US TO THE THIRD LIM B OF THE DISCUSSION IN THE MATTER. THE ASSESSEE, AS DISCUSSED ABOVE, IN RESPONSE TO A REQUISITION U/S. 142(1) , PLACED REQUEST ON THE DIFFERENT BANKS IN WHICH HE AND HIS WIFE , CT , HAVE SINCE ADMITTED TO HAVE ACCOUNTS, FOR FURNISHING COP IES OF ACCOUNT SINCE INCEPTION OF THE ACCOUNT TO ITS CLOS URE . WE HAVE ALREADY EXPLAINED THAT THE SAME CANNOT BY ITSELF BE CONSIDERED AS AN EVIDENCE BUT ONLY AN EXPRESSION OF EARNESTNESS ON THE PART OF THE ASSESSEE TO COME CLEAN. THERE IS ALSO NO WAY TO HOL D THE SAID LIST OF BANK ACCOUNTS AS EXHAUSTIVE . WE HAVE, HOWEVER, ADMITTED THE REPORT BY UBS AG, ZURICH, DATED 30.10.2007 TO ED IN THE CASE OF HAK (SUPRA) (REFER PARA 3.3 OF THE SAID ORDER ), TO WHICH REFERENCE STANDS ALSO MADE BY THE ASSESSEE IN SUPPORT OF HIS CASE, NOTING THAT THE SAME AS WELL AS THE FACSIMILE DATED 15.1.2007 BY THE SWISS FEDERAL GOVERNMENT TO THE E MBASSY OF INDIA, BOTH AVAILABLE AT THE TIME OF ASSESSMENT, OUGHT TO HAVE BEEN TAKEN INTO ACCOUNT, PROVIDING, IN ALL FAIRNESS, A COPY THEREOF TO THE ASSESSEE. THE SAME, TO WHATEVER EXTENT, MAY HAVE A BEARING ON THE PRESENT ASSESSMENT S AS WELL. THIS IS AS THE TRANSFER INSTRUCTION S (TIS), WHICH FORM THE BULK OF THE ADDITIONS TOWARD UNEXPLAINED BALANCE S IN FOREIGN BANK ACCOUNTS, ARE FOR MOST PART FRO M THE ACCOUNTS OF OR CONTROLLED BY HAK. THE BASIS OF THE TI BASED ADDITIONS IS THAT THE SAME W OULD ONLY BE GIVEN EF F E CT TO, AND EVEN IF S O ME REASON NOT, THE VERY FACT OF DRAWING THE TI IMPLIES BALANCE IN THE RELEVANT ACCOUNT , AT LEAST TO THE EXTENT. THE R ATIONAL E HAS BEEN FOUND BY US AS VALID. THE MATTER, HOWEVER, HAS BEEN , CONSIDERING THE ENTIRETY OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND FOR THE REASONS S TATED THEREIN (REFER PARAS 11 - 12, 15, 25, 30, 49 & 65 OF THE ORDER SUPRA IN CASE OF HAK ), REMAND ED BACK TO THE FILE OF THE A.O. TO ALLOW THE ASSESSEE AN OPPORTUNITY TO PRODUCE THE COPY OF THE RELEVANT ACCOUNTS, ESTABLISHING HIS CASE, WHICH WOULD, IT OPINED, PROVE OR DISPROVE THE ASSESSEES, ON WHOM THE BURDEN OF PROOF LIES IN VIEW OF THE MATERIAL IN THE POS SESSION OF THE REVENUE , CASE. THIS, IT CONSIDERED AS TOWARD A JUST AND FAIR DISPOSAL OF THE APPEALS IN THE GIVEN FACTS AND CIRCUMSTANCES, A S 14 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT ANALYZED BY IT IN THE VARIOUS PARAGRAPHS TO WHICH REFERENCE HAS BEEN MADE , APPLYING THE LAW IN T H E MATTER OF ADMISSION OF ADDITIONAL EVIDENCE BY THE TRIBUNAL IN CONFORMITY WITH ITS UNDERSTANDING THEREOF . NOW, IF, THE SAID ACCOUNT STATEMENT/S FOR THE RELEVANT PERIOD REVEALS NO BALANCE, OR A BALANCE WHICH DOES NOT MATCH AT ALL WITH THE TRANSFER INSTRUCTION, CLEAR LY DRAWING OF THE TRANSFER INSTRUCTION SHALL BE OF LITTLE CONSEQUENCE. THE FURTHER QUESTION OF IT BEING GIVEN EFFECT TO, AND THE INFERENCE FLOWING THERE - FROM, WOULD ALSO NOT ARISE. IN OTHER WORDS, AS A COROLLARY AND A NECESSARY ADJUNCT TO HAVING DECIDED IN FAVOUR OF THE RE STORATION OF THE ASSESSMENT QUA THE ADDITIONS MADE ON ACCOUNT OF TRANSFER INSTRUCTIONS FROM HAK/HAK CONTROLLED BANK ACCOUNTS, THE CORRESPONDING ADDITIONS WITH REFERENCE TO THE BALANCES IN THE TRANSFEREE ACCOUNTS, WOULD REQUIRE A LIKE REMIS SION. ACCORDINGLY, ALL OUR OBSERVATIONS AS STATED IN THE FOREGOING PARAGRAPHS IN THE ORDER OF HAK (SUPRA) , TO THE EXTENT RELEVANT AND NOT INCONSISTENT WITH THE FACTS AS MAY BE FOUND IN THE PRESENT CASE, WOULD EQUALLY APPLY AND HOLD FOR INSTANT APPEALS AS W ELL. THIS, IT MAY BE STATED , DECIDES THE RELEVANT GROUNDS. TRUE, HOWEVER, IN - AS - MUCH AS THE CONSIDERATIONS FOR THE SAME FLOW FROM THE PRINCIPLE INFORMING THE ADMISSION OF ADDITIONAL EVIDENCE/S BY US AS WELL AS , SIMILARLY , IN THE CASE OF HAK, THE SAME REPRE SENT S OUR VIEW POINT IN THE MATTER, SO THAT IT WAS CONSIDERED ONLY PROPER TO STATE THE SAME WHILE DISCUSSING THE SAID ASPECT OF THE ASSESSEES APPEALS. 5.5 TH E FOREGOING DISCUSSION DECIDES G ROUNDS 3 AND 4 OF THE INSTANT APPEALS FOR ALL THE YEARS. A.Y. 20 01 - 02 6. GROUND # 5 IS IN RESPECT OF ADDITION FOR RS.447 CRORES TOWARD UNEXPLAINED DEPOSIT IN THE ASSESSEES BANK ACCOUNT NO. 760001 WITH UNITED BANK OF SWITZERLAND (NAME SINCE CHAN GED TO UBS AG, ZURICH) DURING THE YEAR. THE REVENUE, ON THE BASIS OF THE I NFORMATION RECEIVED FROM ED, FOUND THE ASSESSEE TO BE IN RECEIPT OF THE SAID 15 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT SUM (USD 100 M ILLION) FROM HAK, ON THE BASIS OF TRANSFER INSTRUCTION BY HA K , I.E., VIDE HIS LETTER DATED 16.7.2000 TO THE SAID BANK, EVEN AS THE ASSESSEE DENIED ANY KNOWLEDGE OF T HE SAME OR EVEN OF THE EXISTENCE OF THE SAID ACCOUNT. 7. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. 7.1 THE ADDITION, THUS, IS BASED ON A TRANSFER INSTRUCTION (TI), WHICH THOUGH IN TH E INST ANT CASE IS IN THE FORM OF A LETT ER, REPROD UCED AT PARA 11 OF THE ASSESSMENT ORDER AS WELL AS, PRIOR THERETO, IN THE SHOW CAUSE NOTICE DATED 19.12.2008, READ ING AS UNDER: THE UNION BANK OF SWITZERLAND JULY 16, 2000 ZURICH ATTN. DR. WALLI (THROUGH UBS DUBAI) DEAR SIR, PLEASE TRANSFER A SUM OF US DOLLARS ONE HUNDRED MILLION (US $ 100,000,000) FROM MY ACCOUNT NO , TO THE ACCOUNT OF MR. KASHINATH TAPURIAH ACCOUNT NO. 760001, WITH YOUR BANK IN ZURICH. THIS MAY PLEASE BE TREATED AS MY INSTRUCTIONS, AND I RE QUEST YOU TO TAKE IMMEDIATE ACTION AND CONFIRM. THANKING YOU, YOURS TRULY, HASSAN ALI KHAN THE ASSESSEES CASE, AS IN THE CASE OF HAK (IN WHOSE HANDS ALSO ADDITION STAND S MAD E ON THE BASIS OF THE SAID LETTER), IS ONE OF COMPLETE DENIAL, WHICH IN VIE W OF THE REVENUE CANNOT HOLD IN VIEW OF THE SPECIFIC INFORMATION CONT AI N E D THEREIN, RELIAB ILITY OF WHICH, BEING RECEIVED FROM AN OFFICIAL SOURCE, CANNOT BE DOUBTED. THE RESPECTIVE CASES OF THE PARTIES ARE THUS THE SAME, AS IN THE CASE OF HAK, WHICH STANDS DISCUSSED AT LENGTH BY THE TRIBUNAL AT PARAS 9 - 12 OF ITS ORDER (IN ITA NOS.4156 - 4162/MUM/2010 DATED 29.2.2016) , WITH PARAS 11 AND 12 BEARING ITS FINDINGS. THE SAID ADDITION, IN FACT, HAPPENS TO BE THE FIRST SUCH ADDITION, I.E., BASED ON A TRANSFER INSTRUC TION (TI), IN THE CASE OF HAK (SUPRA), SEVERAL OF WHICH FOLLOW, AS A READING OF THE SAID ORDER WOULD 16 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT SHOW, DISCUSSED IN I T S VARIOUS ASPECTS THEREIN, EVEN AS THE APPROACH AND THE RATIONAL E UNDERLYING THE SAME AND, CONSEQUENTLY, THE RESULT , REMAINS THE SAME. REFERENCE TOWARD THIS MAY ALSO BE MADE TO PARAS 15, 25, 30, 49, 65A AND 109 OF THE SAID ORDER. THE TRIBUNAL FOUND THE TIS, DESPITE BEING TRANSMITTED TO THE REVENUE BY ED, WHICH JOIN ED THE REVENUE IN THE SEARCH OPERATIONS, AND NOT FOUND BY THE LA T TER ITSEL F IN SEARCH U/S. 132(1), SO THAT SECTION 132(4) A S WELL AS THE STATUTORY PRESUMPTION OF SECTION 292C OF THE ACT WOULD, STRICTLY SPEAKING , NOT APPLY IN RELATION THERETO, TO YET HAVE A STR ONG AND PERSUASIVE EVIDENTIARY VALUE. THE NON - MENTION OF THE TRANSFERO RS BANK ACCOUNT NUMBER OR ITS NON - SIGNING BY HIM THOUGH OBTAIN ING IN SOME CASES, STAND S DISCUSSED , AS WERE THE OTHER ASPECTS IN RELATION THERETO, VIZ. THE BACKGROUND AND THE SURROUNDING FACTS AND CIRCUMSTANCES ; THE BANK PARTICULARS, INCLUDING THE NAMES OF THE BANK OFFICIALS, THE ABIDING AND APPARENT RELATIONSHIP BETWEEN THE ASSESSEE AND KT , IN THE SAID PARAS. THE SAME WOULD APPLY IN THE EQUAL MEASURE IN THE PRESENT CASE, WITH RATHER THE EXISTENCE OF THE ACCOUNT NUMBER 76001 (IN THE NAME OF THE ASSESSEE (KT)) BEING ADMITTED , BOTH BY HIM AS WELL AS IN THE BANK REPORT. AS REGARDS THE REASON FOR THE HAK TO TRANSFER FUNDS IN SUCH HUGE SUMS TO HIM, THE ASSESSEE HIMSELF NOW (VIDE LETTER DATED 01.7.2009, PGS .9 1 4 - 9 1 7 /APB - 5 ) EXPLAINS THAT TO BE THE SOLE PURPOSE AN D THE RAISO N DETRE OF HIS RELATIONSHIP WITH HAK, WHO, CLAIMED TO HAVE ACCE SS TO HUGE FUNDS, PROMISED TO INVEST IN THE ASSESSEES PRO JEC TS. WHETHER THAT BY ITSELF WAS SUFFICIENT FOR THE ASSESSEE TO HAVE, ON THE CONTRARY, AS CLAIMED, INCUR HEAVY EXPENDITURE OR , RATHER , TRANSFER NO IN SUBSTANTIAL SUMS TO HAK, I.E., TO HAVE CONTINUED TO BE D E LU D ED BY THE SAID PROMISE FOR SEVERAL YEARS, IS ANOTHER MATTER. THERE IS, HOWEVER, SUFFICIENT EVIDENCE ON RECORD TO SHOW THE TWO SHARING A CLOSE RELATIONSHIP FOR SEVERAL YE ARS THE ASSESSEE CLAIMING TO KNOW HAK SINCE 1994, OF WHICH MUTUAL TRUST IS AN ESSENTIAL INGREDIENT , AS WELL AS , BY IMPLICATION , COMMON BUSINESS INTENT AND INTEREST. THERE IS AN A GREEMENT DATED 07.8.2001 BETWEEN THEM, AT DUBAI, RECOVERED FROM THE PREMISES OF BOTH IN SEARCH, ENVISAGING TRANSFER OF HUGE FUNDS TO THE ASSESSEE ( WHICH STANDS DISCUSSED EXTENSIVELY IN THE ORDER DATED 29.2.2016 (SUPRA) IN THE CASE OF 17 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT HAK ) , WHO THOUGH NOW DEBUNKS THE SAME. FURTHER , HAK VIDE HIS NOTARIZED STATEMENT DATED 30.6.2003 A T LONDON (FORMING ANNEXURE - C TO THE ORDER AFORE - MENTIONED), WHEREAT THE ASSESSEE WAS ALSO PRESENT, STATES OF HIM AS BEING HIS ADVISOR. IN FACT, HAK WAS FOUND TO HAVE LENT RS.5 CRS. TO R. M. CONSULTANTS P. LTD., KOLKATA A COMPANY OF KT (ASSESSEE) (REFER PAR AS 11 - 12, 18, 30.2 OF THE ORDER AFORE - STATED). THE REVENUE IN FACT IS NOT OBLIGED TO PROVE THE NATURE OF THE RECEIPT OR TO LOCATE ITS SOURCE, SO THAT , W H ERE NOT SATISFACTORILY EXPLAINED AS TO ITS NATURE AND/OR SOURCE, IT COULD BE DEEMED AS INCOME (REFER : C IT VS. DEVI PRASAD VISHWANATH PRASAD [1969] 72 ITR 194 (SC) ; SREELEKHA BANERJEE VS. CIT [1963] 49 ITR 112 (SC) ) . I N THE VIEW OF THE TRIBUNAL , THIS WAS A MATTER OF FACT, WHICH HAD TO BE ESTABLISHED BY DEFINITE MATERIAL/EVIDENCE, VIZ. THE COPY OF THE BANK AC COUNTS , IN VIEW OF THE DEFINITE MATERIAL WITH THE REVENUE (IN THE FORM OF TI S ), AND WHICH THEREFORE WOULD PRESUMABL Y BE CONSIDERED AS HAVING BEEN GIVEN EFFECT TO . T HEN, AGAIN, EVEN SO, THE ADDITION IS TOWARD UNEXPLAINED DEPOSIT (BALANCE ) IN ACCOUNT , SIGNIF IED BY THE DRAWING OF THE TI ITSELF. AS SUCH, EVEN IF NOT GIV E N EFFECT TO, THE NECESSARY IMPLICATION AND THE INFERENCE OF THE BALANCE IN ACCOUNT SHALL FOLLOW AND HOLD, JUSTIFYING INVOCATION OF SECTION 69A. THE RE IS IMPLICATION FOR THE TRANSFEREES CASE AS WELL . THIS IS AS THE TI IMPLIES A RIGHT IN THE AMOUNT SOUGHT TO BE TRANSFERRED THEREBY, AND PRESUMABL Y ONLY ON OWN ACCOUNT . THIS COULD THOUGH BE DISPROV ED , ADDUCING , AGAIN, SATISFACTORY EXPLANATION AS TO THE NATURE OF THE FUNDS SOUGHT TO BE TRANSFERRED. AC CORDINGLY, A CONCOMITANT OF THE ASSESSEE BEING ENTITLED TO FUNDS IN THE SUM STATE D IN THE TRANSFER INSTRUCTION, IN THE ABSENCE OF EXPLANATION AS TO ITS NATURE , WOULD, EVEN WHERE NOT RECEIVED, ADMIT AN INFERENCE AS TO ACCRUAL OF INCOME, AS ALSO OF THE APPLI CATION OF THE DEEMING FICTION OF SECTION 69A; THE ASSESSEE BEING FOUND TO BE A CREDITOR QUA A DEBT TO THAT EXTENT . THAT IS , THE NATURE OF THE DEBT, UNEXPLAINED, IS SUFFICIENT TO ATTRACT THE RIGOR OF THE PROVISION . 7.2 NO IMPROVEMENT IN H IS CASE STANDS MAD E BY THE ASSESSEE, I.E., VI S - A - VI S THAT BEFORE THE REVENUE, EVEN AS INDICATED ABOVE WITH REFERENCE TO THE ARGUMENTS IN 18 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT RESPECT OF ADMISSION OF ADDITIONAL EVIDENCE BY THE TRIBUNAL. SO, HOWEVER, AND EVEN AS WE SAY SO, WE CANNOT H E L P BUT OBSERVING AND , ACCORD INGLY , STATE THAT THE TRIBUNAL IN THE CASE OF HAK (SUPRA) , DECISION IN WHICH CASE SHALL FOR APPARENT REASONS STAND TO BE ADOPTED IN THE PRESENT CASE, I.E., A SET ASIDE TO THE FILE OF THE ASSESSING AUTHORITY TO ENABLE THE ASSESSEE TO CONCLUSIVELY PROVE THE FACTS, BESIDE S BEING PRECISELY WHAT THE LD. COUNSEL , SHRI CHETAN KARIA, CA, ARGUED AND WAS AT PAINS TO BRING HOME . IN THE PRESENT CASE, THE ACCOUNT NUMBER SPECIFIED IN THE DOCUMENT IS ADMITTED AND CONFIRMED TO BE THAT OF THE ASSESSEES BANK ACCOUNT WITH U BS AG, ZURICH. THE DECISION OF THE TRIBUNAL IN HAK (SUPRA) SHALL, ACCORDINGLY, APPLY O N ALL FO U R S , WITH WE FINDING NO REASON TO TA KE ANY DIFFERENT VIEW IN THE MATTER. AS SUCH, FOR THE SAME REASONS AS STATED IN THE SAID ORDER, AND FOR WHICH REASONS REFERENC E IS DRAWN TO THE SIX (6) PARAS THEREOF ADVERT ED TO ABOVE, WE DECIDE LIKEWISE, I.E., RESTORE THE MATTER BACK TO THE FILE OF THE A.O. TO ADJUDICATE AFRESH, ALLOWING THE ASSESSEE AN OPPORTUNITY TO ESTABLISH H IS CASE. HE SHALL BE REQUIRED TO PRODUCE THE RELEV ANT BANK ACCOUNT /S TO EXHIBIT THE NON RECEIPT OF THE RELEVANT AMOUNT /S IN THE WHOLE OR IN PART DURING THE RELEVANT YEAR , OR AT ANY TIME LATER. WE STATE SO AS IT COULD WELL BE THAT THE TI GET S DELAYED IN EXECUTION FOR SOME REASON, AND I S GIVEN EFFECT TO AT A LATER POINT IN TIME. THE ADDITION THOUGH, WE MAY CLARIFY, EVEN IF THIS AMOUNT STANDS RECEIVED IN WHOLE OR IN PART, DURING A SUBSEQUENT YEAR, SHALL BE FOR THE CURRENT YEAR AS, AS PRESENTLY DISCUSSED , THE SAME IS ONLY IN PURSUANCE TO THE RIGHTS ALREA DY INURED, I.E., IN DISCHARGE OF THE LIABILITY ALREADY ACCRUED/ARISEN. WHERE, HOWEVER, NO AMOUNT IS RECEIVED, THE ADDITION, SOLELY ON THE BASIS OF A T I , THOUGH COULD BE MADE , WOULD ONLY BE WHERE THE REVENUE HAS ANY MATERIAL TO JUSTIFY THE ACCRUAL OF INCOME AND, ACCORDINGLY , WOULD REQUIRE BEING ADJUDICATED ON THE BASIS OF THE ENTIRETY AND FACTS AND CIRCUMSTANCES OF THE CASE. QUA TIS WHERE NO BANK ACCOUNT IS SPECIFIED THEREIN, IN - AS - MUCH AS THE ASSESSEE C AN NOT PROVE A NEGATIVE, IT SHALL, AS ALSO CLARIFIED IN HAK (SUPRA) , SUFFICE, I.E., THE BURDEN OF PROOF ON THE ASSESSEE SHALL STAND DISCHARGED , WHERE HE PRODUCE S THE BANK STATEMENT OF ALL SUCH BANK ACCOUNTS , EITHER ADMITTED BY THE ASSESSEE OR HIS WIFE 19 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT OR IN THE KNOWLEDGE OF THE REVENUE ON THE BASIS OF THE MATER IAL FOUND IN SEARCH OR OTHERWISE TRANSMITTED TO IT. WE MAY ALSO, BEFORE CONCLUDING, CLARIFY THAT IT SHALL BE OPEN FOR THE ASSESSEE TO, I.E., APART FROM THE COURSE SUGGESTED ABOVE, EXPLAIN THE TRANSACTION. THAT IS, THE BASIS OR THE REASON FOR THE DRAWING OF THE TI AND THE CONSEQUENT EVENTS LEADING TO THE RECEIPT IN WHOLE OR IN PART, OR THE NON - RECEIPT OF THE STATED SUM/S, EXPLAINING AS TO WHY THE RECEIPT SHOULD NOT BE DEEMED AS INCOME OR, AS THE CASE MAY BE, THE REASON FOR IT S NON - RECEIPT, AND WHERE SO, TH E ASSESSING AUTHORITY SHALL DECIDE, GIVING REASONS IN SUPPORT OF HIS DECISION. WE DECIDE ACCORDINGLY . THIS ALSO DECIDES OTHER TI BASED ADDITIONS IN THESE APPEALS BY THE ASSESSEE, FACTS OF WHICH ARE PARI MATERIA , BEING IN FACT ALSO ARGUED TOGETHER, VI Z . GRO UND # 6 (FOR THE CURRENT YEAR). 8. GROUND # 7 IS TOWARD AN ADDITION IN THE SUM OF RS.1,07,700/ - . PAGE 47 OF ANNEXURE A - 1 TO PANCHANAMA DATED 06.1.2007 REVEALED FIGURES OF INTEREST (RS.5,96,260/ - ) AND BROKERAGE (RS.40,831/ - ) FOR THE PERIOD 01.2.1997 TO 31 .3.2004, WITH THAT FALLING TO THE SHARE OF THE PREVIOUS YEAR UNDER REFERENCE, I.E., RELEVANT TO A.Y. 2001 - 02, BEING AT RS.1,34,400/ - (PARA 8 OF THE ASSESSMENT ORDER). SIMILARLY, THERE IS REFERENCE TO PAGES 48, 49, 102 & 103 OF THE SAID ANNEXURE, BEING IN R ESPECT OF LOAN IN THE PRINCIPAL AMOUNT OF RS.2 LACS AND RS.1.25 LACS, TO M/S. HARSH ENTERPRISES AND MR. RAMLAL JAIN RESPECTIVELY, CARRYING INTEREST @ 21% P.A., AS WELL AS BROKERAGE AMOUNTS FOR THE PERIOD 01.4.1992 TO 31.3.2004 AND 2006 RESPECTIVELY. SUMS I N RELATION THERETO, HOWEVER, FALL FOR ASSESSMENT FOR THE SUBSEQUENT YEARS, AS FOR A.Y. 2005 - 06. IN EXPLANATION, THE ASSESSEE VIDE LETTER DATED 01.12.2008 STATED THAT THESE WERE MERE ROUGH CALCULATIONS AND NOTINGS WITH REGARD TO INTEREST CALCULATION, AND NO TRANSACTION HAD TAKEN PLACE. THE SAME DID NOT FIND ACCEPTA NCE BY THE A.O., WHO ADDED THE AMOUNT OF INTEREST AND BROKERAGE, WORKING TO THE IMPUGNED SUM OF RS.1,07,700/ - . THE ASSESSEE COULD NOT IMPROVE HIS CASE BEFORE THE LD. CIT(A) IN ANY MANNER, RESULTING IN CONFIRMATION OF THE IMPUGNED ADDITION, SO THAT, AGGRIEVED, HE IS IN SECOND APPEAL. 20 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT 9. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. THE ASSESSEE IN RELATION TO THE ADDITIONS MADE WITH RESPECT TO PAGES 48 (AND 103) AND 49 (AND 102), H AS VIDE HIS SAID LETTER DATED 01.12.2008 ADMITTED THE SAME TO BE THE LOANS FROM HARSH ENTERPRISES AND RAMLAL JAIN, IN THE STATED SUM OF RS.2 LACS AND RS.1.25 LACS RESPECTIVELY, CLAIMING THE SAME TO BE DULY REFLECTED IN HIS BOOKS OF ACCOUNT. EVEN AS THE SAM E CAME TO BE ADDED FOR A.Y. 2005 - 06 IN THE ABSENCE OF THE ASSESSEE PRODUCING THE SAID BOOKS OF ACCOUNT AND, THUS, SUBSTANTIATING HIS CLAIM, THE SAME ABUNDANTLY CLARIFIES THE SAID NOTINGS TO BE NOT MERE ROUGH NOTINGS, AS STATED BY THE ASSESSEE, BUT REFLECT DEFINITE TRANSACTIONS. THIS PRESUMPTION WOULD, IN FACT, ALSO FLOW IN VIEW OF THE STATUTORY PRESCRIPTION OF SECTION 292C OF THE ACT. THE ASSESSEE DENYING THE TRANSACTION, WITHOUT IN ANY MANNER REBUTTING THE STATUTORY PRESUMPTION AND CIRCUMSTANTIAL EVIDENCE, ALSO FOUND ALONG WITH, WE HAVE NO HESITATION IN CONFIRMING THE ADDITION, BEING THE INTEREST AND BROKERAGE PAID BY THE ASSESSEE. THERE IS, HOWEVER, ONE CAVEAT, WHICH WE MAY LIKE TO ADD THAT THIS SHOULD NOT RESULT IN ANY DOUBLE ADDITION, I.E., AS WHERE THE ASSESSEE EXPLAINS THE NOTINGS WITH REFERENCE TO THE NOTINGS IN SOME OTHER PAGE/S, TAKEN COGNIZANCE OF AND, ACCORDINGLY, SUBJECT TO ADDITION. WE STATE SO ONLY WITH A VIEW TO ESCHEW ANY DOUBLE ADDITION ON ANY ACCOUNT. WE DECIDE ACCORD INGLY. THIS ALSO DECIDES GDS. 7, 5, 5, 5 AND 14 (OF A.Y. 2002 - 03 TO 2006 - 07) . 10. GROUND # 8 : PAGE 33 OF ANNEXURE A - 2 TO PANCHNAMA DATED 06.1.2007 REVEALS THE DETAILS OF RS. 4 2 LACS GIVEN BY THE ASSESSEE TO ONE, SUSHILA TAPURIAH , FROM 01.1.1986 TO 31.12.1996, I.E., @ RS.35,00 0/ - P.M., AS ALSO RS.1 LAC AND RS.1.20 LACS PAID TO HER DURING F . Y . 2003 - 04 AND IN DECEMBER, 2004 RESPECTIVELY. THE SAME ALSO CONTAINS DETAILS OF SIMPLE INT EREST @ 10% P.M. ON THESE SUMS, TABULATED AS UNDER: A.Y. INTEREST @ 10% ON PRINCIPAL AMOUNT OF RS.4 2 LAKH, GIVEN TO SUSHILA TAPURIAH PRINCIPAL AMOUNT GIVEN TO SUSHILA TAPURIAH FOR MEDICAL EXPENSE INTEREST ON MEDICAL EXPENSES TOTAL UNDISCLOSED AMOUNT 2001 - 02 4,20,000 4,20,000 21 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT 2002 - 03 4,20,000 4,20,000 2003 - 04 4,20,000 4,20,000 2004 - 05 4,20,000 1,00,000 10,000 5,30,000 2005 - 06 4,20,000 1,20,000 10,000 + 12,000 5,62,000 2006 - 07 4,20,000 12,000 4,32,000 2007 - 08 4,20,000 4,20,000 TOTAL 29,40,000 2,20,000 44,000 THE INTEREST CHARGED AND RECEIVED HAV ING NOT BEEN DISCLOSED AS INCOME, THE A.O. SOUGHT TO BRING THE SAME TO TAX. THE ASSESSEE EXPLAIN ED TH E SAME TO BE ROUGH NOTINGS, AND THAT NO INTEREST HAD IN FACT BEEN RECEIVED. BEING UNSUBSTANTIATED, THE AMOUNT WAS ADDED IN ASSESSMENT AND CONFIRMED IN APPEAL, SO THAT THE ASSESSEE IS IN SECOND APPE AL. 11. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. THE DOCUMENT FOUND DURING SEARCH IS TO BE PRESUMED AS TRUE AND CORRECT (SECTION 292C). THE ASSESSEE IN FACT ADMITS BEFORE THE A.O. (VIDE LETTER DATED 01.12.2008) TO HAVE GIVEN THE STAT ED SUM/S TO SUSHILA TAPURIAH, THE WIDOWE D MOTHER OF HIS LATE HALF BROTHERS GRANDSON, FURTHER EXPLAINING THE INTEREST CALCULATION TO HAVE BEEN MADE S O THAT IF AT A FUTURE DATE SOME JOINT PROPERTY IS SOLD, THE AMOUNT COULD BE RECOVERED, THOUGH NO AMOUNT WAS RECOVERED. HOW COULD , THEN, WE WONDER, THE ASSESSEE EXPLAIN THE SAME AS MERE ROUGH NOTINGS BEFORE THE FIRST APPELLATE AUTHORITY. AT THE SAME TIME, THE ASSESSEES EXPLANATION APPEARS PLAUSIBLE. THE SAME IS T HOUGH INCOMPLETE IN - AS - MUCH AS NO DETAILS OF THE JOINT PROPERTY HAVE BEEN FURNISHED. WHAT WOULD THEREFORE BE REQUIRED TO BE SEEN IS IF ANY PROPERTY , HELD JOINTLY , OR EVEN INDIVIDUALLY , STANDS SOLD BY SUSHILA TAPURIAH , OR EVEN BY THE ASSESSEE IN WHICH SHE HAS OR COULD STAKE A CLAIM, AS THAT ONLY WOULD ENA BLE HER TO PAY THE ASSESSEE EITHER THE PRINCIP A L OR INTEREST. THIS ASPECT WOULD REQUIRE BEING EXAMINED. IF, ON THE OTHER HAND, THERE IS NO SUCH PROPERTY, THE ASSESSEES PLEA IS PALPABLY FALSE, OSTENSIBLE WITH AN INTENT TO MISLEAD. THE ASSESSEE WE OBSERVE H AS STOPPED PAYING SUMS FROM JANUARY, 1997, INDICATING INCOME/RECEIPT IN 22 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT HER HANDS SINCE 1997, WHICH ASPECT ALSO WOULD REQUIRE BEING EXAMINED AS THE SAME IS INDICATIVE OF FUNDS IN HER HANDS , WHICH COULD HAVE BEEN UTILIZED TO PAY THE ASSESSEE. DE HORS ANY MA TERIALS OR EVIDENCE TOWARD HER BEING IN RECEIPT OF ANY SUM , IT IS DIFFICULT TO HOLD THAT THE INCOME HAD ARISEN TO THE ASSESSEE , CONSIDERING HER FINANCIAL STRINGENCY. WE HAVE, RATHER, CONSIDERED A CLAIM BY THE ASSESSEE AS VALID IN VIEW OF THE STATUTORY PRES UMPTION OF SECTION 2 9 2C, SO THAT HIS INTEREST CALCULATION IMPLIES AN UNDERSTANDING TO THAT EFFECT. WHY, THE ASSESSEE COULD HAVE CLARIFIED THAT THE PAYMENTS SHALL BE SUBJECT TO INTEREST, AT THE DEFINED RATE, DEFERRING IT S RECEIPT TO THE SALE OF THE PROPERTY . AGAIN, THERE IS NOTHING ON RECORD TO INDICATE ACTUAL RECEIPT OF INTEREST, OR EVEN THE RESOURCES WITH THE LONEE TO PAY THE SAME. THE MATTER, ACCORDINGLY, IS RESTORED TO THE FILE OF THE A.O. TO CLARIFY THESE ASPECTS, IN THE ABSENCE OF WHICH WE FIND THE MAT TER IS FACTUALLY INDETERMINATE. 12. GROUND 9 IS TOWARD UNEXPLAINED EXPENDITURE ON CREDIT CARD S AS FOUND TO HAVE BEEN INCURRED FOR DIFFERE NT YEARS , FROM A.Y. 2001 - 02 (AT RS.42,535/ - ) TO A.Y. 2007 - 08, TABULATED AT PARA 10 OF THE ASSESSMENT ORDER, AS UNDER: SR. NO. NAME OF THE BANK ASSESSMENT YEAR AMOUNT (IN RS.) 1 AMERICAN EXPRESS 2001 - 02 42,535 2 AMERICAN EXPRESS 2002 - 03 1,87,232 3 AMERICAN EXPRESS 2003 - 04 2,02,699 4 AMERICAN EXPRESS 2004 - 05 87,399 5 AMERICAN EXPRESS 2005 - 06 2,50,604 6 AMERICAN EXPR ESS 2006 - 07 8,52,867 7 AMERICAN EXPRESS 2007 - 08 8,06,065 8 CITY BANK 2007 - 08 8,62,463 9 ICIC BANK 2007 - 08 1,38,428 10 ABN AMRO BANK 2007 - 08 2,16,745 THE ASSESSEE CLAIMED THE SAID EXPENDITURE TO HAVE BEEN PAID FOR BY CHEQUES AND , FURTHER, TREATING TH E SAME AS WITHDRAWALS ON ACCOUNT OF PERSONAL EXPENSES, SO THAT NO PART OF THE SAME W AS CLAIMED BY WAY OF DEDUCTION IN THE COMPUTATION OF INCOME 23 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT PER THE RETURNS OF INCOME FOR THE RELEVANT YEARS. THE SAID CLAIM, HOWEVER, BEING UNSUBSTANTIATED, ADDITIONS FOR DIFFERENT YEARS CAME TO BE MADE , AND WH ICH STAND CONFIRMED IN VIEW OF A STAT U S QU O ; THE ASSESSEE FAILING TO MAKE ANY IMPROVEMENT IN HIS CASE BEFORE THE FIRST APPELLATE AUTHORITY . 13. WE HAVE HEARD THE PARTIES, AND P ERUSED THE MATERIAL ON RECORD. N O IMPROVE MENT , AGAIN, TO HIS CASE STANDS MADE BEFORE US BY THE ASSESSEE . WE ARE, HOWEVER, MOVED BY THE FACT THAT THE ASSESSEE HAS THROUGHOUT MAINTAINED THAT THE PAYMENTS WERE MADE BY CHEQUE /S DRAWN ON HIS REGULAR BANK ACCOUNT / S, DULY REFLECTED IN HIS ACCOUNTS, CLAI MING NO PART OF THE SAME AS DEDUCTION UNDER THE ACT, BEING PERSONAL EXPENSES. THE TRANSACTION IS THUS ADMITTED AS TOWARD PERSONAL EXPENSES, WHILE THE EXPLANATION REQUIRED IS WITH REGARD TO ESTABLISHING THE SOURCE OF THE PAYMENT THEREOF. THE CONTENTION OF T HE PAYMENT BY CHEQUE, WHICH THOUGH IS NOT PROVED , IS NOT DISPROVED AS WELL, RAISES THE PRESUMPTION AS TO THE PAYMENT BEING, AS CLAIMED , ACCOUNTED FOR IN THE ASSESSEES BOOKS OF ACCOUNT OR OTHERWISE DISCHARGED FROM AN ACCOUNTED/DISCLOSED SOURCE, SO THAT THE SOURCE BECOMES EXPLAINED. THE ASSESSEE IS A REPUTED BUSINESSMAN AT AN ADVANCED STAGE OF HIS LIFE. WE CANNOT BUT HAVE REGARD TO THE TRY ING CIRCUMSTANCES IN WHICH HE W AS PLACED DURING THE RELEVANT PERIOD AS WELL AS THE COMPLETE D ISARRAY IN WHICH HIS OFFIC E SET - UP WENT INTO ON ACCOUNT OF THE SEARCH BY THE REVENUE AS WELL AS ED AND THE SUBSEQUENT PROCEEDINGS. IN FACT, THE TRIBUNAL HAS, TAKING COGNIZANCE OF THE SIMILAR CIRCUMSTANCES AND CONSIDERING THE INJUSTICE W HICH A NON - ALLOWANCE OF OPPORTUNITY MAY ENTAIL, RESTOR ED THE MATTER FOR FRESH ADJUDICATION BACK TO THE FILE OF THE A.O. IN THE CASE OF HAK (SUPRA). T HE MATTER IS ESSENTIALLY FACTUAL, AND THE ONUS TO ESTABLISH HIS CLAIMS, I.E., AS TO THE SOURCE OF THE EXPENDITURE INCURRED BY HIM THROUGH CREDIT CARDS, IS STRICTLY ON THE ASSESSEE. W E, ACCORDINGLY, TAKING THE ENTIRETY OF THE FACTS AND CIRCUMSTANCES OF THE CASE INTO ACCOUNT , ONLY CONSIDER IT PROPER TO RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING AUTHORITY WITH A VIEW TO ALLOW A FINAL OPPORTUNITY TO TH E ASSESSEE TO DISCHARGE THE BURDEN OF PROOF , WHICH CONTINUES TO BE U N - DISCHARGE D, AND ADJUDICATE AFRESH PER A SPEAKING ORDER IN 24 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT ACCORDANCE WITH LAW. NEEDLESS TO ADD, THE ASSESSEE SHALL BE ALLOWED REASONABLE OPPORTUNITY TO PRESENT ITS CASE. WE DECIDE ACCORD INGLY. 14. GROUND S # 1 0 AND 11 ARE TOWARD DISALLOWANCE OF PROFIT AND LOSS EXPENSES AS CLAIMED PER THE PROFIT AND LOSS ACCOUNT (RS.5,91,650/ - ) AND THE ADD - BACK OF CREDITORS ( RS.21,14,448/ - ) , AS APPEARING IN THE BALANCE - SHEET FURNISHED ALONG WITH THE RETURN OF INCOME FOR THE YEAR. THE ASSESSEE NOT PRODUCING ANY BOOKS OF ACCOUNT, BILLS OR VOUCHERS IN SUPPORT OF H IS CLAIM S , OR CONFIRMATIONS OF LOANS AND CREDITS FROM THE CREDITORS , OR OTHER SUPPORTING EVIDENCES IN RESPECT THEREOF, THE SAME WERE BROUGHT T O TAX AS THE ASSESSEES INCOME. NO IMPROVEMENT WHATSOEVER IN H IS CASE HAVING BEEN MADE BY THE ASSESSEE BEFORE THE FIRST APPELLATE AUTHORITY, THE SAME STOOD CONFIRMED IN FIRST APPEAL . AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL. 1 5 . WE HAVE HEARD THE PART IES BEFORE US AND GIVEN OUR CAREFUL CONSIDERATION TO THE MATTER. CLEARY THE ASSESSEES CASE HAS NOT BEEN REPRESENTED AT ALL BEFORE THE REVENUE AUTHORITIES , WITH THE LD. AR CLAIMING BEFORE US MAINTENANCE O F PROPER RECORDS , TOWARD WHICH AN OPPORTUNITY MAY BE GRANTED OR EVEN ADDITIONAL EVIDENCE ADMITTED BY US. WE , FOR THE SAME REASONS AS IN FORM OUR DECISION QUA G ROUND 9, CONSIDER IT FIT AND PROPER IN THE INTEREST OF JUSTICE THAT THE MATTER IS RESTORED BACK TO THE FILE OF THE A.O. TO ALLOW THE ASSESSEE AN OPPOR TUNITY TO PRESENT AND STATE H IS CASE BEFORE HIM, AND WHO SHALL DECIDE AFTER ALLOWING REASONABLE OPPORTUNITY IN ACCORDANCE WITH LAW PER A SPEAKING ORDER. WE DECIDE ACCORDINGLY, MAKING IT ABUNDANTLY CLEAR THAT WE MAY NOT BE CONSTRUED AS HAVING ISSUED ANY FIN DING IN THE MATTER, SO THAT THE SAME IS WIDE OPEN. WE DECIDE ACCORDINGLY. 16. VIDE G ROUND # 12, THE ASSESSEE AGI T ATES THE NON - ALLOWANCE OF LOSS (OF RS.4,86,147/ - ) CLAIMED PER H IS RETURN OF INCOME FOR THE YEAR. THE SAME STANDS DISALLOWED IN VIEW OF THE SA ID RETURN HAVING BEEN FURNISHED ONLY ON 26.3.2003, I.E., BELATEDLY , PRECLUDING CARRY FORWARD OF DETERMINED LOSS IN VIEW OF SECTION 139(3). THE 25 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT FACTS ARE ADMITTED, AND THE ASSESSEES RETURN STANDS FILED BEYOND THE TIME ALLOWED FOR FURNISHING THE RETURN OF I NCOME U/S. 139(1). THE PROVISION S OF SECTIONS 1 39(3) AND 80 ARE EXPLICIT IN THE MATTER. THE SA ID PROVISIONS, HOWEVER, WOULD CA ME INTO EFFECT ONLY WHEN THE QUESTION OF CARRY FORWARD OF THE LOSS IS TO BE DETERMINED, I.E., TO THE FOLLOWING YEARS , TO BE SET OF F AGAINST THE INCOME IN TERMS OF THE RELEVANT PROVISION S OF CHAPTER VI OF THE ACT. THE LOSS UNDER REFERENCE IS FOR THE CURRENT YEAR, WHICH WOULD SURELY STAND TO BE SET OFF AGAINST INCOME FROM THE SAME SOURCE OR ASSESSABLE UNDER ANY OTHER HEAD OF INCOME FOR THE SAME YEAR, IN TERMS OF SECTION S 70 AND 71 OF THE ACT. WE FURTHER NOTICE THAT NO GROUND QUA THIS ASPECT HAS BEEN RAISED BY THE ASSESSEE BEFORE THE LD. C IT(A). SO, HOWEVER, THE ISSUE IS LEGAL, AND THERE IS UNDER THE CIRCUMSTANCES , NO QUESTION OF APPLICA TION OF SECTION S 139(3) AND 80, WHICH WOULD COME INTO PLA Y ONLY WH EN A LOSS, DETERMINED UNDER A PARTICULAR HEAD OF INCOME , IS TO BE CARRY FORWARD FOR SET OFF AGAINST SPECIFIC INCOME/S FOR A SUBSEQUENT YEAR. THE G ROUND, NOTWITHSTANDING ITS BEING NOT RAISED BEFORE THE FIRST APPELLATE AUTHORITY, IS ACCORDINGLY ADMITTED FOR ADJUDICATION - T HERE BEING NO DISPUTE WITH REGARD TO THE RELEVANT FACTS. AS REGARDS THE ISSUE ON MERITS, I.E., SET OFF OF LOSS AGAINST THE OTHER INCOME FOR THE CURRENT YEAR, WE FIND THAT THE A.O. HAS MERELY REJECTED THE LOSS WITHOUT DETERMINING IT. IN FACT, HE HAS DISALLOWED THE ENTIRE EXPENDITURE WHICH MAY HAVE ITSELF RESULTED IN T HE IMPUGNED LOSS . THE SAME WOULD, ACCORDINGLY, REQUIRE BEING DETERMINED . W ITHOUT DOUBT , ONLY THE LOSS ON THE BAS IS OF THE EXPENDITURE ALLOWED (IN COMPUTING INCOME) CAN BE SAID TO RESULT IN A LOSS, SO THAT IT WOULD STAND TO BE REDUCED BY THE AMOUNT OF EXPENDITURE DISALLOWED. THE MATTER, ACCORDINGLY, AS FOR G ROUND S 9 AND 10 QUA EXPENDITURE, IS SET ASIDE TO THE FILE OF THE A.O. WITH LIKE DIRECTIONS. WE DECIDE ACCORDINGLY. 17. GROUND # 13 IS MERELY A RECOUNT OF THE DIFFERENT G ROUNDS IN THE FORM OF A PRAYER, WHILE GROUND 14 IS TOWARDS A LEAVE TO ADD OR ALTER ANY GROUND OF APPEAL. THE SAME, THEREFORE, DO NOT ARISE FOR AD JUDICATION. WE DECIDE ACCORDINGLY. 26 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT A.Y. 2002 - 0 3 18. 1 GROUNDS 1 TO 4 STAND DECIDED VIDE PARAS 2 TO 5 OF THIS ORDER. 18.2 WE MAY, HOWEVER, BEFORE WE BEGIN TO ADDRESS AND ADJUDICATE THE OTHER GROUNDS RAISED BY THE ASSESSEE, CLARIFY THAT FOR THIS YEAR O NLY THE ADDITIONS AND/OR DISALLOWANCE MADE OR EFFECTED ON THE BASIS OF THE MATERIAL OR EVIDENCES FOUND DURING SEARCH, OR THAT FOUND IN PURSUANCE THEREOF, I.E., AS A DIRECT RESULT OF SEARCH, ONLY WOULD, IN VIEW OF THE DECISION IN CONTINENTAL WAREHOUSING COR PORATION (SUPRA/ALSO AT APB - 11, PGS. 1888 - 1948), STAND TO BE ADJUDICATED ON MERITS, THE BALANCE BEING, AS HELD THEREIN, INCOMPETENT IN THE PRESENT PROCEEDINGS WHICH ARISE ONLY ON ACCOUNT OF A SEARCH U/S. 132 OR REQUISITION U/S. 132A OF THE ACT. THE SAID DE CISION, BEING BY THE HONBLE JURISDICTIONAL HIGH COURT, IS JUDICIALLY BINDING. PER THE SAME, THE HONBLE COURT HAS HELD THAT THOUGH A NON OBSTANTE PROVISION, SO AS NOT TO RESTRICT THE POWER OF ASSESSMENT OF THE A.O. U/S. 153A, YET THE FOUNDATION OF ACTION U/S. 153A IS A SEARCH U/S. 132 OR REQUISITION OF BOOKS OF ACCOUNT OR OTHER ASSETS U/S. 132A. AS SUCH, SECTION 153A, ENABLING ASSESSMENT IN CASE OF A SEARCH OR REQUISITION, MAKING SPECIFIC REFERENCE TO THE CARRYING OUT OF SEARCH OR EXERCISE OF POWER OF REQU ISITION, THE ASSESSMENT U/S. 153A IS ONLY IN FURTHERANCE TO WHAT IS CONTEMPLATED THEREIN. ACCORDINGLY, FOR COMPLETED ASSESSMENTS, WHICH DO NOT ABATE, ASSESSMENT SHALL BE MADE ON THE BASIS OF BOOKS OF ACCOUNT NOT PRODUCED IN THE COURSE OF ORIGINAL ASSESSMEN T BUT FOUND IN THE COURSE OF SEARCH, AND UNDISCLOSED INCOME DISCOVERED IN THE COURSE OF SEARCH (REFER PARAS 18, 23, 28 - 31 OF THE J UDGMENT AS WELL AS PARAS 48 - 54 OF THE ORDER OF THE TRIBUNAL IN ALL CARGO GLOBAL LOGISTICS LTD . VS. D Y. CIT [ 2012 ] 23 T AXMANN.C OM 103(MUM)(SB), REPRODUCED AT PARA 31). THE HONBLE APEX COURT IN P. R. METRANI VS. CIT [2006] 287 ITR 209 (SC) HAD AN OCCASION TO CONSIDER THE SCOPE OF THE SEARCH AND SEIZURE PROCEEDINGS UNDER THE ACT. APPROVING THE DECISIONS IN PUSHKAR NARAIN SARRAF V S. CIT [1990] 183 ITR 388 (ALL) AND DAYA CHAND VS. CIT [2001] 250 ITR 327 (DEL) , AND THE REVERSING THE DECISION IN 27 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT CIT VS. P. R. METRANI (HUF) [2001] 251 ITR 244 (KAR), IT CLARIFIED THIS SCOPE TO BE VERY LIMITED, I.E., RESTRICTED TO A SUMMARY ASSESSMENT TO WARD RETAINING SUFFICIENT ASSETS TO MEET THE DEMAND OF TAX AND/OR PENALTY THAT MAY ARISE IN ASSESSMENT. SECTION 132, IT EXPLAINS, IS A COMPLETE CODE IN ITSELF, WHICH CANNOT INTRUDE INTO ANY OTHER PROVISION OF THE ACT AND, SIMILARLY, THE OTHER PROVISIONS OF THE ACT CANNOT INTERFERE WITH THE SCHEME OF THE WORKING OF SECTION 132 OR ITS PROVISIONS. THE PRESUMPTION OF SECTION 132(4A) IS ONLY FOR THE LIMITED PURPOSE OF PASSING AN ORDER U/S. 132(5), AND WAS NOT AVAILABLE FOR FRAMING A REGULAR ASSESSMENT . THE HONB LE APEX COURT FOUND THE PROVISION S (FORMING PART OF CHAPTER XIII - C) TO HAVE ALL THE TRAPPINGS OF A SMALL CODE IN ITSELF, EMBODYING AN INTEGRATED SCHEME (SECTIONS 132 TO 132B) FOR A SPECIFIC PURPOSE, I.E., LAYING DOWN A COMPLETE PROCEDURE FOR SEARCH AND SEI ZURE; THE POWER OF THE RELEVANT AUTHORITIES, AND CONFISCATION OF THE ASSETS SEIZED. THE MATERIAL SEIZED THOUGH COULD BE USED AS A PIECE OF EVIDENCE IN ANY PROCEEDINGS UNDER THE ACT, WITH SECTION 132(4) ITSELF SO PROVIDING. THAT IS, THE PROVISIONS OF SECTIO NS 132 AND 132A , SAVE TO THE EXTENT SPECIFICALLY PROVIDED, WOULD NOT IMPACT OR REGULATE THE PROCESS OF ASSESSMENT IN ANY MANNER. AN ASSESSMENT UNDER THE ACT, I.E., WHERE THE A.O. HAS THE POWER TO ASSESS INCOME AFTER MAKING ENQUIRIES, BY EFFECTING ADJUSTMEN T/S TO THE RETURNED INCOME, CAN EVEN OTHERWISE B E MADE ONLY ON THE BASIS OF MATERIAL ON RECORD, APPLYING THE EXTANT LAW (OF - COURSE DULY CONFRONTING THE ASSESSEE THEREWITH) AND, BESIDES, IS IMPERMISSIBLE TO BE REVIEWED ( CIT VS. KELVINATOR OF INDIA LTD. [201 0] 320 ITR 561 (SC)). BE THAT AS IT MAY, IN ALL CASES OF COMPLETED ASSESSMENT, AS HELD BY THE HONBLE COURT IN CONTINENTAL WAREHOUSING CORPORATION (SUPRA), BINDING ON US, THE SCOPE OF SECTION 153A ASSESSMENT SHALL BE CONFINED TO THE FINDINGS OF THE SEARCH OR, AS THE CASE MAY BE, REQUISITION. 19. GROUND # 5 IS IN RESPECT OF AN ADDITION FOR RS.2,43,80,000/ - (THE AMOUNT HAVING BEEN CORRECTED BY THE LD. CIT(A)) , BEING THE VALUE (IN INR) OF USD 5,00,000 PURPORTEDLY PAID BY THE ASSESSEE TO SHRI PHILIP ANANDR AJ DURING THE YEAR. THE RELEVANT 28 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT DISCUSSION APPEARS AT PARA 11 AND PARAS 11 - 15 OF THE ASSESSMENT AND THE IMPUGNED ORDER RESPECTIVELY. BRIEFLY, PAGE 6 OF BUNDLE 6 OF ANNEXURE A DATED 05.1.2007 (TO PANCHANAMA DATED 06.1.2007), I.E., FORMING PART OF THE DOCUM ENTS FOUND AND SEIZED FROM THE PUNE RESIDENCE OF HAK AND HIS WIFE, RHEEMA HASSAN ALI KHAN ( RHAK ) , IS A LETTER OF AUTHORISATION, SIGNED BY THE ASSESSEE IN FAVOUR OF PA, AUTHORISING HIM TO ACT AS HIS (ASSESSEES) AGENT AS WELL AS OF MR. HAK, I.E., TO REPRESE NT HIM INTERNATIONALLY. PAGES 7 AND 8 IS A COPY OF THE BILL DATED 05.4.2001 FOR USD 5 LACS RAISED BY PA ON THE ASSESSEE (KT). THE ASSESSEE NOT FURNISHING ANY SATISFACTORY EXPLANATION, SUBMITTED VIDE REPLY DATED 01.12.2008 (REFER PAGE 14 OF THE ASSESSMENT O RDER), THE A.O. MADE THE ADDITION TOWARD THE SAME. NO IMPROVEMENT IN HIS CASE WHATSOEVER BEING MADE, THE SAME CAME TO BE CONFIRMED IN FIRST APPEAL, WITH THE LD. CIT(A) FINDING, ON THE BASIS OF INTERNET SEARCHES, THE VARIOUS PERSONS/ENTITIES MENTIONED IN TH E LETTER/COMMUNICATION FOUND TO WHICH THE PRESUMPTION OF SECTION 292C, I.E., AS TO TRUTHFULNESS TO THEIR CONTENTS, SHALL APPLY, AS BEING REAL, EXISTING PERSONS/ENTITIES. AGGRIEVED, THE ASSESSEE IS IN SECOND APPEAL. 20. WE HAVE HEARD THE PARTIES, AND PER USED THE MATERIAL ON RECORD. PA, AN INDIAN NATIONAL, IS A RESIDENT OF SWITZERLAND, AND A CLOSE ASSOCIATE OF HAK/KT, HAVING BEEN ENGAGED BY THEM TO REPRESENT THEIR INTEREST S INTERNATIONALLY. THERE IS SUFFICIENT EVIDENCE ON RECORD TO ESTABLISH THIS, AND TOWA RD WHICH WE MAY REFER TO PARAS 11.5, 20A TO 25, 103 - 106 OF THE TRIBUNALS ORDER DATED 29/2/2016 IN CASE OF HAK (IN ITA NOS. 4156 AND 4162/MUM/2010 ). HE WAS IN FACT FOUND RESIDING AT THE HAKS PUNE RESIDENCE AT THE TIME OF SEARCH, AS STATED, SINCE HIS ARRIV AL IN INDIA IN OCTOBER, 2006, WITH A VIEW TO PURSUE HIS OUTSTANDING WITH HIM, EVEN AS FOUND BY THE TRIBUNAL IN THE CASE OF HAK (SUPRA), EVEN AS IT OPINED THAT THERE COULD HAVE OTHER THINGS/MATTERS ON THEIR AGENDA AS WELL. THE ASSESSEE THEREFORE STATING OF HAVING ENGAGED PA ON BEHALF AND BEHEST OF HIS NRI FRIENDS INTERESTED IN ACQUIRING REAL ESTATE PROPERTIES IN WESTERN EUROPE, AUTHORISING HIM TO REPRESENT THEM, IS WITHOUT ANY BASIS OR MAT ERIAL/ EVIDENCE, 29 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT EITHER FOUND IN SEARCH OR ADDUCED AT ANY STAGE AND, AC CORDINGLY, ONLY NEEDS TO BE REJECTED. IF AT ALL, IT ONLY CONFIRMS THE VALIDITY OF THE DOCUMENTS FOUND, SO THAT NEGOTIATIONS TOWARD PURCHASE OF REAL ESTATE PROPERTIES WAS UNDER WAY ; THE BILL BY PA UNDER REFERENCE BEING IN RESPECT OF ONE SUCH PROPERTY HOTE L CHATEAU GUTSAH, LUZERN, SWITZERLAND. THE SAME WAS, HOWEVER, NOT SOLD. LIABILITY TOWARD THE SERVICES OF PA COULD YET ARISE, BEING NOT IN ANY MANNER DEPENDENT ON THE ACTUAL SALE OF THE PROPERTY AND, THEREFORE, VALIDLY RAISED, PAYMENT IN RESPECT OF WHICH CO ULD BE UNDERSTANDABLY MADE. WHAT IS INTRIGUING THOUGH IS THAT THE SAME HOTEL WAS BEING NEGOTIATED FOR PURCHASE BY HAK AS WELL, AT THE SAME TIME, WHO HAD EXPRESSED HIS DESIRE TO INVEST IN PROJECT S IN SWITZERLAND TO PA IN FEBRUARY, 2001 RETAINING HIM AS HIS AGENT IN APRIL, 2001. PA REPRESENTING THE INTEREST OF BOTH HAK AND KT, THE ONLY INFERENCE ONE CAN REASONABLY DRAW IS OF THE PURCHASE BEING NEGOTIATED FOR BOTH, PERHAPS JOINTLY, EVEN AS HE RAISES SEPARATE BILLS FOR THE SERVICES ON THEM. BOTH HAK AND KT, ON WHOM THE ONUS TO EXP LAIN THE SEIZED MATERIAL LIES, HAVE FURNISHED VAGUE REPLIES. SIMILAR ADDITION HAS BEEN MADE, IN FACT ALSO TOWARD PURCHASE COST OF THE SAID HOTEL, IN THE CASE OF HAK, EVEN THOUGH THE TRIBUNAL FOUND AS A FACT THAT THE SAME HAD NOT MATERIA LIZED (REFER PARAS 20A, 21, 22 OF THE ORDER IN HAK(SUPRA)). IT HAS, HOWEVER, SET ASIDE THE MATTER TO THE A.O. TOWARD DETERMINING CERTAIN ASPECTS OF THE TRANSACTION. THE ADDITION TOWARD PAYMENT FOR SERVICES (TO PA) WAS DELETED FOR WANT OF ANY EVIDENCE AS TO PAYMENT, WITH THAT ON RECORD, RATHER, SUGGESTING OTHERWISE. THERE IS NO SUCH CORROBORATIVE MATERIAL IN THE CASE OF THE ASSESSEE, WHO HAS ADMITTED TO HOLDING AND MAINTAINING FOREIGN BANK ACCOUNTS, SUGGESTING THAT THE PAYMENT MAY AS WELL HAVE BEEN MADE. UND ER THE CIRCUMSTANCES, WE CONSIDER IT FIT AND PROPER TO RESTORE THE MATTER BACK TO THE FILE OF THE A.O. THE ASSESSEE SHALL, WITH REFERENCE TO THE ACCOUNT STATEMENTS OF THE BANK ACCOUNTS, SINCE ADMITTED, AS WELL AS THE BANK ACCOUNTS IN THE KNOWLEDGE OF THE R EVENUE, EXHIBIT THAT NO SUCH PAYMENT, WHICH COULD WELL BE IN THE INSTALLMENTS , HAS BEEN MADE. TRUE, THERE IS NO DIRECT PROOF OF PAYMENT, YET, BY ALL INDICA THE PAYMENTS HAS BEEN MADE; THE ASSESSEE HIMSELF ADMITTING TO BEING IN NEGOTIATION FOR PURCHASE OF 30 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT R EAL ESTATE PROPERTIES IN WESTERN EUROPE (ALBEIT ON BEHALF OF UNKNOWN, UNSPECIFIED FRIENDS), AND HAVING HIRED THE SERVICES OF PA FOR THE PURPOSE, SO THAT THE NON - PAYMENT, AS CLAIMED, SHALL HAVE TO BE REASONABLY PROVED. PA, AFTER ALL, WAS PURSUING HAK, AND N OT THE ASSESSEE, WHO HAS HIMSELF BEEN FOUND TO HAVE FINANCED AND/OR INCURRED EXPENDITURE FOR AND ON BEHALF OF HAK. NEEDLESS TO ADD EACH YEAR BEING AN INDEPENDENT UNIT OF ASSESSMENT, IT IS ONLY THE PAYMENT FOUND MADE DURING THE CURRENT YEAR THAT COULD, TO THAT EXTENT, WHERE UNEXPLAINED, BE CONFIRMED FOR ASSESSMENT FOR THE CURRENT YEAR. WE DECIDE ACCORDINGLY. 21. GROUND # 6: THIS GROUND IS TOWARD AN ADDITION WITH REFERENCE TO PAGE 17 OF BUNDLE 7 OF ANNEXURE - A (DATED 05.1.2007) TO PANCHANAMA DATED 06.1.200 7 (CONTAINING 29 PAGES), FOUND AND SEIZED IN SEARCH FROM THE PUNE RESIDENCE OF HAK AND RHAK. IT CONTAINS STATEMENT OF OPEN OUTSTANDING OF HIS ACCOUNT WITH HAK AS ON 09.3.2002, READING AS UNDER: POSITION PARTICULARS QUANTITY UNIT IN CHF 1.1 LOAN TO HAK VIA MR. TAPURIAH (UBP) 1 1,77,000 1,77,000 1.2 COMMISSION PROMISED BY MR. TAPURIAH ON POS 1.1 1 79,650 79,650 1.5 MOBILE TELEPHONE BILL MR. TAPURIAH 1 5278 5278 1.17 COURIER MEDICINE FOR MR. TAPURIAH 1 180 180 THE ASSESSEES SUBMISSION (DATED 01.12.2008) THAT THE SAID STATEMENT DID NOT CONCERN HIM AND, FURTHER, THAT HE WAS NOT AWARE OF OR IN ANY MANNER CONNECTED THEREWITH, DID NOT FIND FAVOUR WITH THE REVENUE, RESULTING IN ADDITION FOR THE AMOUNT (CHF 2,62,108) , NOTED THEREIN, WORKING TO THE IMPUGNED SUM OF RS.1,23,45,286/ - (AS CORRECTED BY THE LD. CIT(A)). SURELY, THE SAME, GIVEN THE BACKGROUND OF A BUSINESS RELATIONSHIP BETWEEN THE ASSESSEE, HAK AND PA, THE EXPLANATION WHICH IS ESSENTIALLY A DENIAL, BY THE ASSESSEE, WOULD BE OF NO MOMENT, PARTICULARLY CONSIDERING THE 31 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT STATUTORY PRESUMPTION OF SECTION 292C. AT THE SAME TIME, HOWEVER, WE WONDER AS TO HOW COULD THE DOCUMENT BE READ TO IMPLY ANY INCOME IN THE HANDS OF THE ASSESSEE (KT). LOAN TO HAK BY PA, EVEN IF THROUGH THE AGENCY OF THE ASSESSEE, OR COMMIS SION PROMISED BY HIM, WOULD NOT TRANSLATE INTO INCOME IN HIS HANDS; THE SAME BEING, WITHOUT DOUBT, TO THE ACCOUNT OF HAK. SIMILARLY, THE BILLS TO THE ASSESSEE (CHF 5458 FOR MEDICINE, COURIER AND TELEPHONE EXPENSES) BEING CHARGED BY PA TO HAK, ONLY IMPLY BE ING PAID BY PA, WHO, IN TURN, CHARGES THE SAME TO HAK. IRRESPECTIVE OF HAK HAVING PAID THE SAME TO PA OR NOT, THE VERY FACT OF THEIR CHARGE TO HIM IMPLIES THAT THE UNDERSTANDING IS OF THE HAK PAYING THE SAME. HOW, THEN, THE SAME COULD IT BE CONSIDERED AS D ISCHARGED BY THE ASSESSEE, FOR BEING CONSIDERED AS HIS INCOME. WE, THEREFORE, HAVE NO HESITATION IN DELETING THE SAID ADDITION. WE DECIDE ACCORDINGLY. 22. GROUND # 7 IS TOWARD AN ADDITION FOR RS.74,100/ - ON ACCOUNT OF INTEREST AND BROKERAGE. THE SAME ST AN D S DISPOSED VIDE AT PARAS 8 - 9 OF THIS ORDER, ADJUDICATING GD. 7 FOR A.Y. 2001 - 02; THE RESPECTIVE CASES OF BOTH THE PARTIES BEING THE SAME. 23. GROUND # 8 IS TOWARD AN ADDITION FOR RS.4,20,000/ - ON ACCOUNT OF INTEREST INCOME AND RS.12,000/ - ON ACCOUNT OF INTEREST. THE SAME STAND S DISPOSED VIDE AT PARAS 10 - 11 OF THIS ORDER, DECIDING GD. 8 FOR A.Y. 2001 - 02; THE RESPECTIVE CASES OF BOTH THE PARTIES BEING THE SAME. 24. GROUNDS # 9, 10 AND 11 BEING NOT IN RESPECT OF ANY MATERIALS FOUND DURING SEARCH, ARE WIT HOUT JURISDICTION IN THE INSTANT PROCEEDINGS AND, ACCORDINGLY, ARE DIRECTED FOR DELETION RESPECTFULLY FOLLOWING THE DECISION BY THE HONBLE JURISDICTIONAL HIGH COURT IN CONTINENTAL WAREHOUSING CORPORATION (SUPRA). 25. GROUND # 12 IMPUGNS THE NON - ALLOWANCE OF THE SET OFF OF LOSS OF RS.7,60,020/ - PER THE RETURN OF INCOME FILED ON 31.3.2004 AND, THUS, BEING NOT IN TERMS OF SECTION 139(3) IN - AS - MUCH AS IT IS FILED IN BREACH OF THE TIME ALLOWED FOR FURNISHING THE RETURN ALLOWED U/S. 139(1) (REFER PARA 14 OF THE ASSESSMENT ORDER). THE ASSESSEE, HOWEVER, 32 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT CLAIMS IT TO BE A LOSS FOR THE CURRENT YEAR. BE THAT AS IT MAY, IT IS ONLY THE LOSS AS DETERMINED IN ASSESSMENT THAT COULD BE SET OFF, WHICH IS STATED AS MADE U/S. 143(3) ON 31.3.2005 (APB 10, PG. 1785). WE, ACCOR DINGLY, MODIFY THE IMPUGNED ORDER TO HOLD IN FAVOUR OF THE LOSS, AS DETERMINED, TO THE EXTENT IT RELATES TO THE CURRENT YEAR, AGAINST INCOME ASSESSABLE FOR THE CURRENT YEAR. IN OTHER WORDS, IT IS THE INCOME AS ALREADY ASSESSED U/S. 143(3), AS AGAINST THAT RETURNED, THAT SHALL BE THE STARTING POINT OF THE COMPUTATION OF INCOME, FOLLOWED BY THE ADJUSTMENTS MADE THERETO PER THE INSTANT ASSESSMENT. WE DECIDE ACCORDINGLY. 26. GROUND # 13 IS MERELY A RECOUNT OF THE DIFFERENT GROUNDS IN THE FORM OF A PRAYER, WHI LE GROUND 14 IS TOWARDS A LEAVE TO ADD OR ALTER ANY GROUND OF APPEAL. THE SAME, THEREFORE, DO NOT ARISE FOR ADJUDICATION. WE DECIDE ACCORDINGLY. A.Y. 2003 - 0 4 27. GROUNDS 1 TO 4 STAND DECIDED VIDE PARAS 2 TO 5 OF THIS ORDER. 28. GROUND # 5 IS TOWARD A N ADDITION FOR RS.1,07,700/ - ON ACCOUNT OF INTEREST AND BROKERAGE. THE SAME STANDS ALREADY DECIDED VIDE PARA S 8 - 9 OF THIS ORDER, ADJUDICATING GROUND 7 FOR A.Y. 2001 - 02 ; THE RESPECTIVE CASES OF THE PARTIES BEING THE SAME . 29. GROUND # 6 IS TOWARD AN ADDITI ON FOR RS.4,20,000/ - ON ACCOUNT INTEREST INCOME. THE SAME STANDS ALREADY DECIDED VIDE PARA S 10 - 11 OF THIS ORDER, ADJUDICATING GROUND 8 FOR A.Y. 2001 - 02 ; THE RESPECTIVE CASES OF THE PARTIES BEING THE SAME. 30. GROUND # 7 IS TOWARD AN ADDITION FOR RS.2,02, 699/ - ON ACCOUNT OF UNEXPLAINED EXPENDITURE THROUGH CREDIT CARD S . THE SAME STANDS ALREADY DECIDED VIDE PARA S 12 - 13 OF THIS ORDER, ADJUDICATING GROUND 9 FOR A.Y. 2001 - 02 ; THE RESPECTIVE CASES OF THE PARTIES BEING THE SAME. 31. GROUND # 8: INFORMATION ON F OREIGN EXCHANGE PURCHASED FROM M/S. GLOBE FOREX, KOLKATA, REVEALED THE ASSESSEE TO HAVE PURCHASED FOREIGN EXCHANGE WORTH 33 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT RS.9,45,269/ - FROM 11.7.2002 TO 05.2.12005. THE ASSESSEE, IN EXPLANATION, VIDE HIS LETTER DATED 26.12.2008, SUBMITTED THAT THE SAME, BE ING FOR FOREIGN TRAVEL, COULD ONLY BE VERIFIED FROM HIS OLD PASSPORT, NO LONGER IN HIS POSSESSION. FURTHER, THAT ALL THE PAYMENTS STAND MADE THROUGH CHEQUES AND ARE DULY REFLECTED IN HIS INCOME - TAX RETURNS. IN THE ABSENCE ITS SUBSTANTIATION, HOWEVER, THE E XPENDITURE INCURRED DURING THE CURRENT YEAR (RS.2,21,990/ - ) CAME TO BE ADDED AS UNEXPLAINED EXPENDITURE U/S. 69C, AND ALSO CONFIRMED FOR THE SAME REASON, SO THAT THE ASSESSEE IS IN SECOND APPEAL. 32. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. MERELY STATING THAT THESE STAND DULY ACCOUNTED FOR IN THE REGULAR BOOKS OF ACCOUNT WOULD NOT PROVE THE SAME, PARTICULARLY CONSIDERING THAT THE ASSESSEE DID NOT FILE HIS RETURN U/S. 139 FOR THE YEAR. AGAIN, THE EXPLANATION, EVEN WHERE DISCLOSED, MA Y HAVE BEEN CLAIMED AS A BUSINESS EXPENDITURE, WHICH ASPECT WOULD IN THAT CASE REQUIRE BEING EXAMINED FOR DEDUCTIBILITY ON THE ANVIL OF SECTION 37(1) (OR OTHER RELEVANT PROVISION). CONSISTENT WITH OUR DECISION QUA OTHER SUCH DISPUTED CLAIMS, WHICH ARE OSTE NSIBLY ACCOUNTED FOR, WE RESTORE THE MATTER BACK TO THE FILE OF THE A.O. TO ALLOW THE ASSESSEE AN OPPORTUNITY TO SUBSTANTIATE HIS CLAIM/S, DISCHARGING THE ONUS THAT LIES ON HIM IN LAW. THE A.O. SHALL ADJUDICATE AFRESH, IN ACCORDANCE WITH THE LAW, ISSUING D EFINITE FINDINGS OF FACT. WE DECIDE ACCORDINGLY. THIS ALSO DECIDES GD. 9 AND GD. 19 FOR AY 2004 - 05 AND AY 2006 - 07. 33. GD. # 9 IS TOWARD AN ADDITION FOR RS.11,57,251/ - ON ACCOUNT OF UNEXPLAINED EXPENSES. THE SAME STANDS ALREADY DECIDED VIDE PARA S 14 - 15 O F THIS ORDER, ADJUDICATING GROUND 10 FOR A.Y. 2001 - 02 ; THE RESPECTIVE CASES OF THE PARTIES BEING THE SAME. 34. GD. # 10 IS TOWARD AN ADDITION FOR RS.6,00,000/ - ON ACCOUNT OF UNEXPLAINED LOANS AND CREDITORS. THE SAME STANDS ALREADY DECIDED VIDE PARA S 14 - 1 5 OF THIS ORDER, 34 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT ADJUDICA TING GROUND 11 FOR A.Y. 2001 - 02 ; THE RESPECTIVE CASES OF THE PARTIES BEING THE SAME. 35. GROUND # 11 IS TOWARD AN ADDITION FOR RS.7,04,266/ - ON ACCOUNT OF RETURNED LOSS. THE SAME STANDS ALREADY DECIDED VIDE PARA S 16 AND 25 OF THI S ORDER, ADJUDICATING G ROUND 1 2 FOR A.YS. 2001 - 02 AND 2002 - 03 ; THE RESPECTIVE CASES OF THE PARTIES BEING THE SAME. 36. GROUND # 12 IS MERELY A RECOUNT OF THE DIFFERENT GROUNDS IN THE FORM OF A PRAYER, WHILE GROUND 13 IS TOWARDS A LEAVE TO ADD OR ALTER AN Y GROUND OF APPEAL. THE SAME, THEREFORE, DO NOT ARISE FOR ADJUDICATION. WE DECIDE ACCORDINGLY. A.Y. 2004 - 0 5 37. GROUNDS 1 TO 4 STAND DECIDED VIDE PARAS 2 TO 5 OF THIS ORDER. 38. GROUND # 5 IS TOWARD AN ADDITION FOR RS.1,07,700/ - ON ACCOUNT INTEREST AND BROKERAGE. THE SAME STANDS ALREADY DECIDED VIDE PARA S 8 - 9 OF THIS ORDER, ADJUDICATING GROUND 7 FOR A.Y. 2001 - 02. 39. GROUNDS # 6 AND 7 STAND ALREADY DECIDED VIDE PARA S 10 - 11 OF THIS ORDER, ADJUDICATING G ROUND 8 FOR A.Y. 2001 - 02 . THESE GROUNDS IMPUGN A DDITION S ON ACCOUNT OF INTEREST (RS.4,30,000/ - ) AND THE PRINCIPAL AMOUNT (RS.1 LAC), REPRESENTING THE INTEREST ON P A ST LOANS (RS.4 . 2 0 LACS) AND O N A FRESH LOAN OF RS.1 LAC (FOR MEDICAL EXPENSES) RECEIVED FROM SUSHILA TAPURIAH. OUR DECISION QUA INTEREST FOR EARLIER YEARS SHALL OBTAIN FOR THE CURRENT YEAR AS WELL. AS REGARDS THE PRINCIP A L LOAN (RS. 1 LAC) , WE FIND NO REASON NOT TO CONFIRM THE SAME. APART FROM THE LOAN BEING EVIDENCED BY THE SEIZED MATERIAL, TO WHICH THE PRESUMPTION OF TRUTHFULNESS APPLIES, THE SAME IS ADMITTED IN - AS - MUCH AS THE ASSESSEE EXPLAINS OF NO INTEREST HAVING BEEN RECEIVED THEREON , AND WORKED OUT BY HIM ONLY FOR THE PURPOSE OF BEING CLAIMED/RECOUPED IN FUTURE ON THE SALE OF S O ME (JOINT) PROPERTY. THE ADDITION FOR RS.1 LAC, WHICH IS A SU BJECT MATTER OF 35 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT G ROUND 7 BEFORE US, IS ACCORDINGLY CONFIRMED. THE SAME ALSO DECIDES G ROUND 7 FOR A.Y. 2005 - 06; THE AMOUNT FOR THAT YEAR BEING RS.1,20,000/ - ; THE FACTS OF THE CASE AS WELL AS THE RESPECTIVE CASES OF THE PARTIES BEING TH E SAME. WE DECIDE ACCO RDINGLY. THIS DECIDES GDS. 6 AND 7 FOR A.Y. 2007 - 08 AS WELL, BEING QUA THE SAME SET OF FACTS. 40. GROUND # 8 IS TOWARD AN ADDITION FOR RS.87,399/ - ON ACCOU NT OF UNEXPLAINED EXPENDITURE ON CREDIT CARD PAYMENTS. THE SAME STANDS ALREADY DECIDED VIDE PARA S 12 - 13 OF THIS ORDER, ADJUDICATING G ROUND 9 FOR A.Y. 2001 - 02 ; THE RESPECTIVE CASES OF THE PARTIES BEING THE SAME. 41. GROUND # 9 IS TOWARD AN ADDITION FOR RS.74,614/ - ON ACCOUNT OF AMOUNT OF FOREIGN CURRENCY PURCHASED FROM GLOBE FOREX, KOLKATA , AS UNEXPLAIN ED EXPENDITURE. THE SAME STANDS ALREADY DECIDED VIDE PARA S 31 - 32 OF THIS ORDER, ADJUDICATING G ROUND 8 FOR A.YS. 2003 - 04 ; THE RESPECTIVE CASES OF THE PARTIES BEING THE SAME. 42. GROUND # 10 IS TOWARD AN ADDITION FOR RS.5,16,727/ - ON ACCOUNT OF UNEXPLAINED EXPENSES. THE SAME STANDS ALREADY DECIDED VIDE PARA S 14 - 15 OF THIS ORDER, ADJUDICATING G ROUND 10 FOR A.Y. 2001 - 02 ; THE RESPECTIVE CASES OF THE PARTIES BEING THE SAME. 43. GROUND # 11 IS TOWARD AN ADDITION FOR RS.20,78,661/ - ON ACCOUNT OF UNEXPLAINED LOA NS AND CREDITS. THE SAME STANDS ALREADY DECIDED VIDE PARA S 14 - 15 OF THIS ORDER, ADJUDICATING G ROUND 11 FOR A.Y. 2001 - 02 ; THE RESPECTIVE CASES OF THE PARTIES BEING THE SAME. 44. GROUND # 12 IS MERELY A RECOUNT OF THE DIFFERENT GROUNDS IN THE FORM OF A PRA YER, WHILE GROUND 13 IS TOWARDS A LEAVE TO ADD OR ALTER ANY GROUND OF APPEAL. THE SAME, THEREFORE, DO NOT ARISE FOR ADJUDICATION. WE DECIDE ACCORDINGLY. 36 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT A.Y. 2005 - 0 6 45. GROUNDS 1 TO 4 STAND DECIDED VIDE PARAS 2 TO 5 OF THIS ORDER. 46. GROUND # 5 IS TOWARD AN ADDITION FOR RS.74,100/ - ON ACCOUNT INTEREST AND BROKERAGE. THE SAME STANDS ALREADY DECIDED VIDE PARA S 8 - 9 OF THIS ORDER, ADJUDIC ATING GROUND 7 FOR A.Y. 2001 - 02 ; THE RESPECTIVE CASES OF BOTH THE PARTIES BEING THE SAME. 47. GROUNDS # 6 AND 7 A GITATES THE ADDITION (RS.4,42,000/ - ) IN RESPECT OF INTEREST AND BROKERAGE. THIS IS A SUBSISTING ISSUE, BEING THE SUBJECT MATTER OF GROUND 8 FOR A.Y. 2001 - 02, DECIDED VIDE PARA S 10 - 11 OF THIS ORDER. FURTHER, THIS MAY BE READ IN CONJUNCTION WITH PARA 39 O F THIS ORDER, ADJUDICATING GROUNDS 6 AND 7 FOR A.Y. 2004 - 05, WHICH DECISION SHALL, THE FACTS AND CIRCUMSTANCES AS WELL AS THE RESPECTIVE CASES OF THE PARTIES BEING THE SAME, OBTAIN FOR THE CURRENT YEAR AS WELL. WE DECIDE ACCORDINGLY. 48. GROUND # 8: PAGE S 3 AND 4 OF ANNEXURE CIL - 1A, FOUND AND SEIZED FROM THE ASSESSEES RESIDENCE AT KOLKATA IN SEARCH ON 05.1.2007 , IS THE WORKING OF CASH - IN - HAND OF KT (ASSESSEE) AND HIS WIFE (CHANDRIKA TAPURIAH), FOR DIFFERENT YEARS, AS UNDER: F.Y. 2004 - 05 IS RS.4,83,804 F .Y. 2005 - 06 IS RS.25,95,000 (8,60,000 + 17,35,000) F.Y. 2006 - 07 IS RS.13,53,000 (8,05,000 + 5,00,000 + 48,000) THE ASSESSEE EXPLAINED THE SAME TO REPRESENT THE CLOSING CASH - IN - HAND AS ON 31.3.2005 (RS.483804/ - ), I.E., AVAILABLE FOR USE, AS WELL AS THAT WI THDRAWN FROM AND DEPOSITED IN THEIR BANK ACCOUNTS DURING F.YS. 2005 - 06 AND 2006 - 07. THE ASSESSEE FAILING TO SUBSTANTIATE HIS EXPLANATION, THE SAME CAME TO BE ADDED IN ASSESSMENT FOR EACH OF THE THREE YEARS , AS WELL AS CONFIRMED IN APPEAL. AGGRIEVED, THE AS SESSEE IS IN SECOND APPEAL. 49. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. THE ASSESSEE CLAIMS THE BALANCE - SHEET AS ON 31.3.200 5 TO REFLECT A BALANCE OF RS.4,83,804/ - , WHICH 37 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT THOUGH IS STATED TO HAVE NOT BEEN FILED, LEADING TO AN ADDITI ON QUA THE ADMITTED CASH - IN - HAND (AS ON 31.3.200 5 ) BEING UNEXPLAINED AS TO ITS SOURCE. SIMILARLY, FOR A.YS. 2006 - 07 AND 2007 - 08, THE CASH - IN - HAND IS ADMITTED, STATED TO BE SOURCED FROM DIFFERENT BANK ACCOUNTS AND, FURTHER, DEPOSITED AGAIN IN DIFFERENT BANK ACCOUNTS. ONLY A PRODUCTION OF THE ASSESSEES REGULAR ACCOUNTS, WHICH HAVE PRESUMABLY BE E N MAINTAINED IN VIEW OF THE RETURNS U/S. 139 HAVING BE EN FILED FOR THE RELEVANT YEARS (EXCEPT FOR A.Y. 2007 - 08) , ACCOMPANIED BY THE BALANCE - SHEETS AS AT THE END OF TH E RELEVANT YEAR/S , COUPLED WITH THE BANK STATEMENTS, WOULD SUPPORT THE ASSESSEES CLAIM/S. TWO, AS IT APPEARS, THE FIGURE S STATED ARE COMBINED FOR BOTH KT (ASSESSEE) AND CT, SO THAT ONLY A SINGLE CASH ACCOUNT, FOR BOTH, HAS APPARENTLY BEEN MAINTAINED BY TH E ASSESSEE, DEPLOYING IT FOR EITHER DEPOSIT (IN THE BANK ACCOUNTS) OR FOR USER (FOR THE PURPOSES) OF EITHER. THE MATTER IS ESSENTIALLY FACTUAL; THE ASSESSEE BEING CALLED UPON TO EXPLAIN THE SOURCE OF THE CASH AVAILABLE WITH HIM, AND WHICH HE STATES AS SOUR CED FROM DIFFERENT BANK ACCOUNTS. THE DEPOSIT OF CASH IN BANK IS TOWARD UTILISATION OF THE SAID CASH; APART FROM EXPLAINING THE SOURCE OF THE RELEVANT BANK DEPOSIT/S. THE MATTER, IN OUR VIEW, THEREFORE, MERITS BEING EXAMINED, ALLOWING THE ASSESSEE AN OPPOR TUNITY TO PROVE HIS CLAIM/S. THE CASH - IN - HAND, TO THE EXTENT UNPROVED, AND CONFIRMED FOR ADDITION, WOULD FORM PART OF THE CASH - IN - HAND, AS MUCH AS THAT WHICH STANDS EXPLAINED AS TO ITS SOURCE, SO AS TO BE AVAILABLE FOR SUBSEQUENT UTILISATION. TWO, THE A.O. SHALL BE AT LIBERTY, NAY, OBLIGED TO ALSO EXAMINE THE BALANCE/DEPOSIT IN THE BANK, AND THE MERE FACT OF THE CASH BEING WITHDRAWN FROM BANK ACCOUNT MAY BY ITSELF NOT BE CONCLUSIVE OF THE EXPLANATION AS TO THE SOURCE OF CASH, WHICH ONLY TRANSLATES INTO THE SOURCE OF THE CORRESPONDING BANK DEPOSIT/S /BALANCE. WE DECIDE ACCORDINGLY. THIS ALSO DECIDES GROUNDS 16 AND 18 FOR A.YS. 2006 - 07 AND 2007 - 08 RESPECTIVELY; THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS THE RESPECTIVE CASES OF THE PARTIES BEING THE SAM E. 50. GROUND # 9 IS TOWARD AN ADDITION FOR RS.2,50,604/ - ON ACCOUNT OF UNEXPLAINED EXPENDITURE O N CREDIT CARD PAYMENTS. THE SAME STANDS ALREADY DECIDED VIDE PARA S 12 - 38 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT 13 OF THIS ORDER, ADJUDIC ATING GROUND 9 FOR A.Y. 2001 - 02 ; THE RESPECTIVE CASES OF THE PA RTIES BEING THE SAME . 51. GROUND # 10 IS QUA AN ADDITION FOR RS.19,000/ - TOWARD INADMISSIBLE EXPENSES. THE SAME STANDS ALREADY DECIDED VIDE PARA S 11 & 12 OF THIS ORDER, ADJUDICATING GROUND 10 FOR A.Y. 2001 - 02 ; THE RESPECTIVE CASES OF THE PARTIES BEING THE SAME. 52. GROUND # 11 IS TOWARD AN ADDITION FOR RS.20,96,661/ - ON ACCOUNT OF UNEXPLAINED LOANS AND CREDIT S . THE SAME STANDS ALREADY DECIDED VIDE PARA S 11 & 12 OF THIS ORDER, ADJUDICATING GROUND 11 FOR A.Y. 2001 - 02 ; THE RESPECTIVE CASES OF THE PARTIES BEI NG THE SAME. 53. GROUNDS # 12 AND 13 ARE TOWARD CARRY FORWARD AND SET OFF OF LONG - TERM CAPITAL LOSS AND SHOR - TERM CAPITAL LOSS , CLAIMED AT RS.51,43,476/ - AND RS.35,43,583/ - RESPECTIVELY. THE SAME HAVE BEEN SET OFF AGAINST LONG - TERM CAPITAL GAIN ( LTCG ) OF RS.1,10,05,128/ - DISCLOSED BY THE ASSESSEE FOR THE YEAR, RETURNING A NET INCOME (INCLUDING LTCG) AT RS.25,10,231/ - VIDE RETURN U/S. 139(4) FILED ON 29.7.2006. THE REVENUE HAS DISALLOWED THE SET OFF IN THE ABSENCE OF THE ASSESSEE SUBSTANTIATING HIS CLAIM/S, FURTHER SUBJECTING THE ENTIRE LTCG SO ASSESSED (RS.110.05 LACS) TO THE NORMAL RATE, I.E., AS AGAINST THE SPECIAL RATE OF 20%, AS NO PROOF IN SUPPORT OF THE CLAIM OF LTCG WAS PRODUCED (REFER PARAS 12.1 - 12.3 OF THE ASSESSMENT ORDER), AND WHICH IS THE SUBJEC T MATTER OF GROUND 1 4 OF THE ASSESSEES APPEAL, WHICH FOLLOWS CONSEQUENT TO THE CONFIRMATION OF THE A.O.S ACTION BY THE LD. CIT(A) IN - AS - MUCH AS NO IMPROVEMENT STOOD MADE BY THE ASSESSEE TO H IS CASE IN THE APPELLATE PROCEEDINGS. 54. WE HAVE HEARD THE PA RTIES, AND PERUSED THE MATERIAL ON RECORD. ADMITTEDLY, THE ASSESSEE HAS NOT ADDUCED ANY EVIDENCE TOWARD HIS CLAIM OF LOSS UNDER THE HEAD CAPITAL GAINS, WHETHER LONG - TERM OR SHORT - TERM, AS WELL AS THE RETURNED LTCG OF RS.110.05 LACS, BROUGHT TO TAX, THER EFORE, AT THE NORMAL RATE. THE 39 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT MATTER IS CLEARLY UNEXAMINED, I.E., ON MERITS, AT ANY STAGE, SO THAT THE DICTATE OF JUSTICE WOULD BE ITS RESTORATION BACK TO THE FILE OF THE ASSESSING AUTHORITY, ALLOWING THE ASSESSEE A FINAL OPPORTUNITY TO PRESENT HIS CASE, INCLUDING FURNISHING OF ANY MATERIAL IN SUPPORT, AND ADJUDICATION BY THE FORMER IN ACCORDANCE WITH THE LAW PER A SPEAKING ORDER. WE DECIDE ACCORDINGLY. WE HAVE, HOWEVER, TWO OBSERVATIONS TO MAKE IN THIS REGARD. FIRSTLY, IF AND WHERE A LOSS UNDER THE HEAD CAPITAL GAINS OBTAINS CONSEQUENT TO THE A.O.S FINDINGS, ISSUED HAVING REGARD TO THE PROVISION OF SECTION 71 OF THE ACT, I.E., WHICH ALLOWS THE SET OFF OF LOSS FROM ONE HEAD OF INCOME AGAINST INCOME FROM ANOTHER FOR THE SAME YEAR; THE RETURN HAVING BEEN F ILED ONLY ON 29.7.2006, I.E., MUCH AFTER THE TIME ALLOWED FOR FURNISHING THE RETURN U/S. 139(1), THE SAME SHALL NOT BE, IN TERMS OF SECTIONS 80 AND 139(3), STAND TO BE CARRY FORWARD. TWO, THERE IS NO INDICATION IF THE ASSESSMENT FOR THE CURRENT YEAR (A.Y. 2005 - 06) WAS FRAMED AT ANY TIME, I.E., PRIOR TO THE IMPUGNED ASSESSMENT. TRUE, ONE COULD ARGUE, AS INDEED IT WAS BEFORE US, THAT WHERE NO ASSESSMENT FOR THE YEAR IS PENDING, IN - AS - MUCH AS THE TIME PROVIDED FOR THE SERVICE OF NOTICE U/S. 143(2) UNDER THE A CT HAD EXPIRED, IT DID NOT ABATE, AND IT WAS BY IMPLICATION A CONCLUDED ASSESSMENT , WHICH CANNOT BE INTERFERED WITH IN SECTION 153A PROCEEDINGS. BOTH THE PARTIES BEFORE US RELIED, IN SUPPORT OF THEIR CASES, ON THE DECISION IN THE CASE OF CONTINENTAL WAREHO USING CORPORATION (SUPRA) . THERE IS, FIRSTLY, ADMITTEDLY NO INTIMATION U/S. 143(1) OR ORDER U/S. 143(3), SO THAT THE STATED ISSUE DOES NOT ARISE FOR CONSIDERATION, SAVE FOR A.Y. 2002 - 03, FOR WHICH, AS AFORE - DISCUSSED, CONCLUDED ASSESSMENT U/S. 143(3) STAND S MADE. FURTHER, THIS ISSUE WILL ALSO NOT ARISE FOR A.Y. 2007 - 08 FOR WHICH NO RETURN HAS ADMITTEDLY BEEN FILED U/S. 139 AND THE IMPUGNED ASSESSMENT (U/S. 144) FOR WHICH YEAR IS THE ORIGINAL ASSESSMENT. AS, HOWEVER, PROCESSING OF EACH RETURN, VALIDLY FURNIS HED, IS AN ESTABLISHED PROCEDURE, WE CONSIDER THIS ISSUE, WITHOUT PREJUDICE , MOVING ON THE PREMISE THAT THE SAME MAY HAVE BEEN SUBJECT TO PROCESSING U/S. 143(1), AND WHICH ISSUE WOULD THEREFORE SURVIVE FOR A.YS. 40 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT 2001 - 02, 2003 - 04 TO 2005 - 06. THIS IS AS FOR A.Y. 2006 - 07, THE RETURN FILED PRIOR TO THE DATE OF SEARCH IS ON 28.5.2008, I.E., BEYOND THE TIME PRESCRIBED THEREFOR U/S. 139(1) OR FOR A BELATED RETURN U/S. 139(4) AND, THUS, NON - EST IN THE EYES OF LAW . ON MERITS, T HE GIST OF THE AFORE - SAID DECISION, EVE N OTHERWISE BINDING ON US, STANDS STATED AT PARA 18.2 OF THIS ORDER, MAKING REFERENCE TO DIFFERENT PARAGRAPHS THEREOF. THE SAME, CAREFULLY PERUSED, IN OUR VIEW, MAKES IT ABUNDANTLY CLEAR THAT WHEN THE HONBLE COURT SPEAKS OF A COMPLETED ASSESSMENT, IT ADVE RTS AND REFERS TO JUST THAT, I.E., AN ASSESSMENT COMPLETED OBSERVING THE DUE PROCESS OF LAW, FOR WHICH THERE IS AN ORDER OF ASSESSMENT (OR REASSESSMENT) IN FORCE AS ON THE DATE OF SEARCH OR REQUISITION. IT, IN SO DOING, REITERATES ITS EARLIER DECISION IN C IT VS. MURLI AGRO PRODUCTS LTD. (IN ITA NO. 36 OF 2009 DATED 29.10.2010), WHICH IT IN FACT FOLLOWS, REPRODUCING THE RELEVANT PART (PARAS 8 - 13) AT PARA 28 OF ITS JUDGMENT (REPORTED AT PGS. 658 660 OF THE REPORTS). VIDE PARA 10 (REPRODUCED) THE HONBLE COU RT SPEAKS OF ASSESSMENT/REASSESSMENT WHICH STANDS FINALI Z ED AS NOT ABATING , SO THAT THE APPEAL OR REVISION PROCEEDINGS PENDING AGAINST SUCH FINALI Z ED ASSESSMENT WOULD NOT ABATE. THIS IS ALSO WHAT STANDS CLARIFIED BY THE BOARD PER ITS CIRCULARS. THEN, AT PA RA 12 (REPRODUCED), IT CLARIFIES THAT IN PASSING AN ASSESSMENT U/S. 153A R/W S. 143(3), THE A.O. CANNOT DISTURB THE FINALITY OF AN (RE)ASSESSMENT ORDER, UNLESS OF - COURSE THE RELIEF GRANTED UNDER A FINALISED ASSESSMENT IS CONTRARY TO THE FACTS UNEARTHED DUR ING THE COURSE OF SECTION 153A PROCEEDINGS. IT FURTHER EXPRESSES ITSELF UNEQUIVOCALLY AT PARA 29 (OF ITS LATER DECISION), AT PG. 66 0 OF THE REPORTS, AS UNDER: IF THEY WERE PENDING ON THE DATE OF INITIATION OF THE SEARCH U/S. 132 OR MAKING OF REQUISITI ON U/S. 132A, AS THE CASE MAY BE, THEY ABATE. IT IS ONLY THE PENDING PROCEEDINGS THAT WOULD ABATE AND NOT WHERE THERE ARE ORDERS MADE OF ASSESSMENT OR REASSESSMENT A RE IN FORCE ON THE DATE OF INITIATION OF THE SEARCH OR MAKING OF A REQUISITION . WHAT , ON E MAY ASK, COULD BE MORE EXPLICIT THAN THIS ? A FINALISED ASSESSMENT, IT CONTINUES TO EXPLAIN (AT PG. 661), CANNOT BE TOUCHED BY RESORTING TO THE PROVISION 41 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT (SECTION 153A). WHETHER THE PROCESSING OF THE RETURN U/S. 143(1) COULD BE SAID TO BE AN ASSESSMENT IS A MATTER DEALT WITH, AND CAN BE SAID TO BE CONCLUDED BY THE DECISION BY THE HONBLE APEX COURT IN CIT VS. RAJESH JHAVERI STOCK BROKERS PVT. LTD. [2007] 291 ITR 500 ( SC). TRACING THE LEGISLATIVE HISTORY OF THE PROVISION, FOR WHICH IT MAKES REFERENCE TO ITS EARLIER DECISION IN APOGEE INTERNATIONAL LTD. VS. UNION OF INDIA [1996] 220 ITR 248 (SC), IT EXPLAINED THAT THE LEGISLATIVE INTENT IS VERY CLEAR FROM THE USE OF THE WORD INTIMATION AS SUBSTITUTED FOR ASSESSMENT, WHICH DENOTE DIFFERENT CONCEPTS. WHILE IN ASSESSMENT, THE A.O. IS FREE TO MAKE ANY ADDITION AFTER GRANT OF OPPORTUNITY TO THE ASSESSEE, NO SUCH ADDITION/ ADJUSTMENT IS PERMISSIBLE U/S. 143(1), WHERE - UNDER HE CANNOT GO BEYOND THE RETURN, ACCOUNTS OR DOCUMENTS ACCOMPANYING THE RETURN, AND FOR THE REASON THAT NO OPPORTUNITY IS GRANTED TO THE ASSESSEE. SUBSTANTIAL CHANGES, IT NOTES, HAVE BEEN FURTHER MADE W.E.F. 01.6.1999, RESTRICTING THE POWER TO MAKE ADJUSTMENT TO REMOVAL OF ARITHMETIC ERRORS OR THAT OTHERWISE APPARENT ON THE BASIS OF THE RETURN I TSELF OR THE DOCUMENTS ACCOMPANYING THE SAME. THE PROCESSING OF THE RETURN, LEADING TO AN INTIMATION U/S. 143(1), MAY NOT BE DONE BY THE AO HIMSELF AND, FURTHER, IS WITHOUT PREJUDICE TO THE PROVISION OF SECTION 143(2) (REFER PGS. 507 TO 510 OF THE REPORTS) . THE INTIMATION U/S. 143(1), I T FURTHER EXPLAINS, IS NOT AN ASSESSMENT AND CANNOT BE TREATED AS AN ASSESSMENT ORDER, ALSO EXPLAINING THE PURPOSE FOR WHICH IT IS DEEMED AS A NOTICE OF DEMAND U/S. 156, I.E., TO ENABLE RECOVERY THEREOF, WHERE IT REFLECTS TA X PAYABLE. CONTINUING FURTHER, IT EXPLAINS THAT THE WORD ASSESSMENT IS USED IN THE ACT FOR CONVEYING DIFFERENT MEANINGS. IT MAY BE USED TO MEAN THE COMPUTATION OF INCOME, SOMETIMES THE DETERMINATION OF THE AMOUNT OF TAX PAYABLE AND SOMETIMES THE WH OLE PROCEDURE LAID DOWN IN THE ACT FOR IMPOSING LIABILITY UPON THE TAX PAYER (PG S . 50 7 - 510 ). WE HAVING SET OUT THE SAID DECISION IN BRIEF, MAY AS WELL REPRODUCE A PART THEREOF (PGS. 509 - 510), AS UNDER: IN THE SCHEME OF THINGS, AS NOTED ABOVE, THE INTIMA TION UNDER SECTION 143(1)(A) CANNOT BE TREATED TO BE AN ORDER OF ASSESSMENT . THE DISTINCTION IS ALSO WELL BROUGHT OUT BY THE STATUTORY PROVISIONS AS THEY 42 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT STOOD AT DIFFERENT POINTS OF TIME. UNDER SECTION 143(L)(A) AS IT STOOD PRIOR TO APRIL 1, 1989, THE ASSESSING OFFICER HAD TO PASS AN ASSESSMENT ORDER IF HE DECIDED TO ACCEPT THE RETURN, BUT UNDER THE AMENDED PROVISION, THE REQUIREMENT OF PASSING OF AN ASS ESSMENT ORDER HAS BEEN DISPENSED WITH AND INSTEAD AN INTIMATION IS REQUIRED TO BE SENT. VARIOUS CIRCULARS SENT BY THE CENTRAL BOARD OF DIRECT TAXES SPELL OUT THE INTENT OF THE LEGISLATURE, I.E., TO MINIMIZE THE DEPARTMENTAL WORK TO SCRUTINIZE EACH AND EVER Y RETURN AND TO CONCENTRATE ON SELECTIVE SCRUTINY OF RETURNS. THESE ASPECTS WERE HIGHLIGHTED BY ONE OF US (D. K. JAIN J) IN APOGEE INTERNATIONAL LIMITED V. UNION OF INDIA [(1996) 220 ITR 248]. IT MAY BE NOTED ABOVE THAT UNDER THE FIRST PROVISO TO THE NEWLY SUBSTITUTED SECTION 143(1) , WITH EFFECT FROM JUNE 1, 1999, EXCEPT AS PROVIDED IN THE PROVISION ITSELF, THE ACKNOWLEDGMENT OF THE RETURN SHALL BE DEEME D TO BE AN INTIMATION UNDER SECTION 143(1) WHERE (A) EITHER NO SUM IS PAYABLE BY THE ASSESSEE, OR (B) NO REFUND IS DUE TO HIM. IT IS SIGNIFICANT THAT THE ACKNOWLEDGMENT IS NOT DONE BY ANY ASSESSING OFFICE R, BUT MOSTLY BY MINISTERIAL STAFF. CAN IT BE SAID THAT ANY ASSESSMENT IS DONE BY THEM? THE REPLY IS AN EMPHATIC N O . THE INTIMATION UNDER SECTION 143(1)(A) WAS DEEMED TO BE A NOTICE OF DEMAND UNDER SECTION 156 , FOR THE APPARENT PURPOSE OF MAKING MACHINERY PROVISIONS RELATING TO RECOVERY OF TAX APPLICABLE. BY SUCH APPLICATION ONLY RECOVERY INDICATED TO BE PAYABLE IN THE INTIMATION BECAME PERMISSIBLE. AN D NOTHING MORE CAN BE INFERRED FROM THE DEEMING PROVISION. THEREFORE, THERE BEING NO ASSESSMENT UNDER SECTION 143(1)(A) , THE QUESTION OF CHANGE OF OPINION, AS CONTENDED, DOES NOT ARISE . FINALLY, WE MAY , FOR THE SAKE OF COMPLETENESS OF THE DISCUSSION IN THE MATTER, WHICH WE HAVE THOUGH FOUND AS COMPLETELY COVERED BY THE DECISIONS BY THE HONBLE JURISDICTIONAL AND THE HONBLE APEX COURT CITED SUPRA, CONSIDER THE ARGUMENT OF THE PROCESSING OF A RETURN U/S. 143(1) AS LEADING TO AN ASSESSMENT, I.E., AFTER THE EXPIRY OF THE TIME PRESCRIBED FOR THE SERVICE OF NOTICE U/S. 143(2), IN THE CONTEXT OF SECTION 153A PROCEEDINGS OR A S. 153A ASSESSMENT. THERE IS NO CONCEPT OF DEEMED ASSESSMENT, I.E., BY LAPSE OF TIME, UNDER THE ACT, WHICH IS A POSITIVE ACT OF DETERMINATION OF INCOME BY THE ASSESSING AUTHORITY . THE LAW DOES NOT CONTEMPLATE TWO ASSESSMENTS, I.E., ONE BY ISSUE OF NOTICE U/S. 143(2) AND THE OTHER, OTHERWISE, I.E., WITHOUT THE ISSUE OF THE SAID NOTICE. AS EX PLAINED BY THE HONBLE COURT PER ITS AFORE - REFERRED DECISIONS, WHAT 43 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT SECTION 153A CONTEMPLATES, QUITE SIMPLY, IS THAT THE RETURN ( FOR A YEAR ) THAT HAS UNDERGONE THE PROCESS OF VERIFICATION, RESULTING IN AN ORDER OF ASSESSMENT (OR REASSESSMENT), BECOMES FINA LI Z ED AND CANNOT BE VISITED AGAIN . THAT IS, WHAT S. 153A CONTEMPLATES IS AN ASSESSMENT OF TOTAL INCOME ON A SCRUTINY OF THE ASSESSEES CLAIMS, I.E., FOLLOWING THE VERIFICATION PROCEDURE UNDER THE ACT, AND DUE APPLICATION OF MIND BY THE A.O. AND IT IS PRECI SELY FOR THIS REASON THAT WHERE THE ASSESSMENT STANDS SO FRAMED, PASSING AN ASSESSMENT ORDER, THE SAME IS HELD AS NOT LIABLE TO BE VISITED AGAIN. THIS IS SUBJECT TO THE CAVEAT THAT NO ADVERSE MATERIAL, INCRIMINATING THE RETURN, IS FOUND IN SEARCH OR REQUIS ITION (OF BOOKS OF ACCOUNT OR OTHER ASSETS). IT IS NOTABLE THAT EVEN INCOME RECORDED IN THE BOOKS OF ACCOUNT WOULD STAND TO BE INCLUDED IN A SECTION 153A ASSESSMENT, WHERE NOT PRODUCED BUT FOUND DURING SEARCH OR REQUISITION. THERE IS NO QUESTION OF CALLING FOR THE BOOKS OF ACCOUNT, MUCH LESS EXAMINING THEM, UNDER THE PROCESSING OF THE RETURN. AS EXPLAINED BY THE APEX COURT IN RAJESH JHAVERI STOCK BROKERS PVT. LTD. (SUPRA), THE QUESTION OF THE A.O. EXPRESSING HIS OPINION U/S. 143(1) DOES NOT ARISE. THERE IS NO DETERMINATION OF INCOME IN SUCH A CASE BY THE A.O., WHO IS PRECLUDED FOR MAKING ENQUIRIES, NAY, EVEN AFFECTING PRIMA FACIE ADJUSTMENTS TO THE RETURN (W.E.F. 01.6.1999). THE INCOME SO ACCEPTED, BEING NOT DETERMINED BY THE A.O. AND SANS ANY ASSESSMENT ORD ER, CAN ONLY BE SAID TO BE RETURNED OR PROCESSED INCOME, AND NOT ASSESSED INCOME. T HE ASSESSEES ARGUMENT, TO OUR MIND, CONSTRICTS THE SCOPE OF THE PROVISO TO SECTION 153A BEYOND ITS MANDATE, WHICH IS LIMITED TO ABATEMENT OF ASSESSMENTS PENDING ON THE D ATE OF INITIATION OF SEARCH OR, AS THE CASE MAY BE, MAKING THE REQUISITION. AS AFORE - DISCUSSED , THE LIMITATION O N THE SCOPE OF INQUIRY OR EXAMINATION ONLY TO THE FINDINGS OF SEARCH OR REQUISITION WHILE MAKING A S. 153A ASSESSMENT WOULD EXTEND ONLY TO CONCL UDED ASSESSMENTS , SIGNIFIED BY ORDERS OF ASSESSMENT OR REASSESSMENT. THIS, WE FIND TO BE THE UNEQUIVOCAL VIEW EXPRESSED BY THE HONBLE COURT IN CONTINENTAL WAREHOUSING CORPORATION (SUPRA) AND MURLI AGRO PRODUCTS LTD. (SUPRA) , JUDICIALLY BINDING ON US, AND WHICH WE FURTHER FIND AS CONSISTENT WITH THE 44 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT DECISION S IN RAJESH JHAVERI STOCK BROKERS PVT. LTD. (SUPRA) AND KELVINATOR OF INDIA LTD. (SUPRA), AS ALSO THE SCOPE AND PURPORT OF A S. 153A ASSESSMENT AS EXPLAINED BY THE HONBLE COURTS OF LAW. 55. GROUNDS 15 & 16 ARE IN RESPECT OF DISALLOWANCE OF DEDUCTION FOR RS.1 LAC AND RS.1,18,406/ - CLAIMED U/S. 80G AND 80D OF THE ACT, MADE AND SUSTAINED IN THE ABSENCE OF ITS SUBSTANTIATION BY THE ASSESSEE (REFER PARAS 12.3 AND 15 OF THE ASSESSMENT AND IMPUGNED ORDER RES PECTIVELY). CLEARLY, IN THE ABSENCE OF ANY EVIDENCE, THE ASSESSEE HAS FAILED TO SUPPORT ITS CLAIM, MUCH LESS PROVE IT. NO SUCH PROOF/MATERIAL HAS ALSO BEEN LED, EXHIBITING THE GENUINENESS OF THE CLAIM OR TOWARD MAKING OUT A CASE FOR ADMISSION OF ADDITIONAL EVIDENCE IN THIS REGARD. WE, ACCORDINGLY, FIND NO REASON FOR INTERFERENCE, AND DECLINE THE SAME. WE DECIDE ACCORDINGLY. 56. GROUND # 1 7 IS MERELY A RECOUNT OF THE DIFFERENT GROUNDS IN THE FORM OF A PRAYER, WHILE GROUND 1 8 IS TOWARDS A LEAVE TO ADD OR ALT ER ANY GROUND OF APPEAL. THE SAME, THEREFORE, DO NOT ARISE FOR ADJUDICATION. WE DECIDE ACCORDINGLY. A.Y. 2006 - 0 7 57. GROUNDS 1 TO 4 STAND DECIDED VIDE PARAS 2 TO 5 OF THIS ORDER. 58. GROUND # 5 IS TOWARD AN ADDITION IN THE SUM OF RS.52,45,215/ - ON AC COUNT OF UNEXPLAINED EXPENDITURE ON THE RENOVATION OF HIS RESIDENCE AT 10A, PRITHVIRAJ ROAD, NEW DELHI BY THE ASSESSEE. THE ASSESSEE WAS CALLED UPON TO EXPLAIN THE VARIOUS EXPENSES INCURRED DURING THE PERIOD UNDER REFERENCE, RECONCILING THE SAME WITH THE B OOKS OF ACCOUNT, I.E., IN VIEW OF PAGES 21 TO 37 OF ANNEXURE A - 1 (TO THE PANCHANAMA DATED 06.1.2007), SEIZED FROM HIS KOLKATA RESIDENCE. VIDE HIS LETTER DATED 01.12.2008, THE ASSESSEE EXPLAINED THESE TO BE MERELY COST ESTIMATES FOR REPAIRS TO FLATS, PURCHA SED IN 1983 - 84, WHICH THOUGH COULD NOT BE UNDERTAKEN DUE TO PAUCITY OF FUNDS. THE DOCUMENTS, SEIZED FROM THE ASSESSEES KOLKATA RESIDENCE, BEING DATED 07/2/2006, RELATE TO THE PERIOD UNDER CONSIDERATION. THEY ARE IN RESPECT OF RENOVATION EXPENSES OF 45 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT THE CA PTIONED PROPERTY, BEARING THE DETAILS OF THE WORK AND THE PAYMENT SCHEDULE, DULY SIGNED BY THE CONTRACTOR. SUMMARISING THE EXPENSES ON VARIOUS COUNTS, AS UNDER, IN THE A.O.S VIEW, THE BURDEN TO REBUT THE PRESUMPTION OF SECTION 292 - C WAS ON THE ASSESSEE (R EPRODUCING THE SAME AT PARA 7), WHICH HE HAD NOT DISCHARGED BY FURNISHING ANY MATERIAL, MERELY DENYING THE TRANSACTIONS AND, ACCORDINGLY, MADE AN ADDITION FOR THE IMPUGNED SUM (REFER PARA 8(I) OF THE ASSESSMENT ORDER): (AMOUNT IN RS.) DISMANTLING WORK 3,04,050 CIVIL & ELECTRICAL WORK 23,87,085 PLUMBING WORK 2,50,000 WINDOW & DOOR CHAUKHAT 7,96,995 MISC WORK 15,07,085 TOTAL 52,45,215 THE SAME FOUND CONFIRMATION IN APPEAL FOR THE SAME REASON; THE PRESUMPTION OF SECTION 292 - C BEING ATTRACTED. 59. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. THE SEIZED MATERIAL, FORMING THE BASIS OF THE ADDITION, IS PLACED AT PGS. 1022 TO 1038 OF THE ASSESSEES PAPER - BOOK (APB) [# 6]. AT PGS. 1022 AND 1038 IS THE COMMUNICATION IN THE NATURE OF A CI RCULAR TO ALL RESIDENTS OF 10A, PRITHVIRAJ ROAD, NEW DELHI THE ASSESSEE OCCUPYING FLATS # 4 TO 6, SIGNED BY ONE, SURESH ARORA (ON BEHALF OF RAJAN KAPOOR, RESIDENT OF FLAT # 1), INFORMING THE COST OF UPKEEP AND MAINTENANCE, ESTIMATED AT RS.6.25 LACS, TO B E DISTRIBUTED IN 8 SHARES, OF WHICH TWO (2) FALL TO THE SHARE OF THE ASSESSEE. NO ADDITION IN ITS RESPECT APPEARS TO HAVE BEEN MADE. PAGES 1023 TO 1037 ARE DETAIL ESTIMATES BY SYMPHONY INTERIORS, SIGNED BY ONE, SANJIV TALWAR, TOWARD DIFFERENT WORKS PLA NNED TO BE CARRIED OUT, SUMMARISED AT PG. 1037 (APB 6), AS UNDER: SUMMARY AMOUNT (RS.) DISMANTLING WORK 3,04,050 CIVIL & ELECTRICAL WORK 23,87,085 PLUMBING WORK 2,50,000 46 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT WINDOW & DOOR CHAUKHAT 7,96,995 TOTAL 37,38,120 WE FIND NO SEPARATE ESTIMATION FOR MISCELLANEOUS WORK (TAKEN AT RS.15,87,085/ - BY THE A.O.) OR DESCRIPTION THEREOF, OR EVEN REFERENCE THERETO, IN THE SAID PAPERS. THIS FIGURE IS IN FACT OF THE COST OF THE CIVIL WORK (AS PER THE REVISED ESTIMATE AT PG. 1035), WITH ELECTRICAL WORK BEING E STIMATED THEREAT AT RS.8,80,000/ - (I.E., BOTH AGGREGATING TO RS.23,87,085/ - ). THIS, IN FACT, SUMMARISES THE REVISED COST ESTIMATE (DATED 07.2.2006), APPEARING AT PGS. 1029 TO 1036, BEING THUS IN SUPERCESSION OF THE PROVISIONAL ESTIMATE (DATED 24.8.2005), A PPEARING AT PGS. 1023 TO 1028, ESTIMATING THE CIVIL AND ELECTRICAL COST AT RS.14,66,005/ - AND THE DISMANTLING COST RS.1,74,075/ - (AT PG. 1028). ANOTHER RS.4 LACS IS WRITTEN AS TOWARD WOOD WORK, ALSO MENTIONING PLUMBING, TERRACE COVER AND PASSAGE IN DINING ROOM, BY HAND (WHICH APPEARS TO BE OF THE ASSESSEE), SUGGESTING THAT THE ESTIMATES WERE SUBJECT TO DISCUSSION. HOWEVER, THE WORK, CLEARLY, WAS NOT CARRIED OUT, NECESSITATING THE REVISION IN ESTIMATES, WHICH STANDS SUMMARISED AT PG. 1037 (SUPRA) AT RS.37,38,120/ - . THE ASSESSEES PLEA OF NO WORK AT ALL HAVING BEEN CARRIED OUT DUE TO PAUCITY OF FUNDS, IS A BALD PLEA, NOT BORNE OUT BY THE RECORD, WHICH SUGGESTS OTHERWISE. THE VERY FACT THAT THE EXERCISE DETAILING THE WORK TO BE UNDERTAKEN, ALONGWITH CON COMITANT COST, WAS CARRIED OUT AGAIN, ONLY IMPLIES A RENEWED INTEREST IN THE PROJECT, WHICH WAS FOR SAME REASON NOT UNDERTAKEN EARLIER. WOULD IT BE SO, IF THE ASSESSEE WAS CONSTRAINED FOR FUNDS ? THE PAUCITY OF FUNDS HAS NOT BEEN SHOWN IN ANY MANNER, THE AS SESSEE, RATHER, MAINTAINING CASH BALANCE IN LACS, BESIDES LIQUID FUNDS WITH B AN KS. THE TIME SCHEDULE ALSO STANDS SPECIFIED ALONG WITH , SIGNIFYING ITS ESSENCE. THE DISMANTLING WORK (COSTING RS.3.04 LACS) IS SCHEDULED TO BE COMPLETED IN 4 - 6 WEEKS, PAID FOR AT 50% IN ADVANCE, WITH THE FINAL INSTALMENT OF (10%) AFTER THE FOURTH WEEK. SIMILARLY, THE CIVIL AND ELECTRICAL WORK (COSTING RS.23.81 LACS) IS SCHEDULE TO BE COMPLETED IN 8 - 10 WEEKS, WITH THE PAYMENT, BEGINNING WITH AN ADVANCE OF 20% (FIRST WEEK), IS TO BE MADE UP TO 95% AFTER COMPLETION OF 7 WEEKS. THE ONUS IS CLEARLY ON THE ASSESSEE, WHO HAS NOT IN ANY MANNER SHOWN THAT, EVEN TO, 47 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT THE WORK WAS, THOUGH PLANNED, NOT ACTUALLY CARRIED OUT, OR WAS EXECUTED ONLY PARTIALLY, OR THAT THE SAME STANDS DULY ACCOUNT ED, PAID FOR THROUGH DISCLOSED SOURCES AND/OR ONLY SUBSEQUENTLY. IN FACT, NO MATERIAL IN REBUTTAL HAS BEEN BROUGHT ON RECORD AT ANY TIME; THE ASSESSEE MERELY DENYING THE TRANSACTION. THEN, THE ASSESSEE STATES OF THE FLATS, PURCHASED IN 1983 - 84, BEING NOT O WNED BY HIM, BUT BY R. M. INVESTMENT AND TRADING CO. PVT. LTD. AND ROBERT MCLEAN CONSULTANTS P. LTD., WHOSE NAMES ARE CONSPICUOUS BY THEIR ABSENCE, I.E., EXCEPT IN THE ASSESSEES SUBMISSION DATED 01.2.2008. THERE IS, FIRSTLY, NO DOCUMENT TO EVIDENCE THE SA ME. TWO, IT IS CLEAR THAT IT IS THE ASSESSEE WHO WAS RESIDING IN THESE FLATS, LOCATED AT FIRST FLOOR OF THE BUILDING, OCCUPYING THE SAME AS A BONA FIDE RESIDENT, AND IT IS HE WHO, AS A RESIDENT AND OSTENSIBLE OWNER OF THE FLATS, WOULD BE INTERESTED IN THE RENOVATION, AND WAS INTERACTING WITH THE CONTRACTOR, SPECIFYING AND DISCUSSING THE WORKS TO BE CARRIED OUT, AND WOULD BE CALLED UPON TO PAY, AND WHOSE NAMES APPEARS ON THE RECORDS OF THE RESIDENTS ASSOCIATION/SOCIETY IN - SO - FAR AS THE COMMUNICATION THERE F ROM IS CONCERNED IN OTHER WORDS, HAS, IN ANY CASE, THE BENEFICIAL INTEREST IN THE FLATS, WHICH HE HOLDS OUT TO THE WORLD AS BELONGING TO HIM. INCOME - TAX LAW RECOGNISES BENEFICIAL OWNERSHIP AS AGAINST LEGAL OR TITULAR OWNERSHIP ( CIT VS. PODAR CEMENT (PVT. ) LTD. [1997] 226 ITR 625 (SC) ), EVEN AS THE ISSUE BEFORE IS QUA THE PAYMENT FOR THE RENOVATION OF ASSESSEES RESIDENCE. NO CASE OF HE BEING REQUIRED TO RESIDE IN THESE FLATS FOR THE PURPOSE OF THE BUSINESS OF THE STATED COMPANIES, EVEN ASSUMING THEM TO BE THE OWNER, HAS BEEN MADE OUT, OR OF THE NEGOTIATIONS WITH THE CONTRACTOR BEING CARRIED OUT BY THE ASSESSEE (AND HIS WIFE) FOR AND ON BEHALF OF THESE COMPANIES. UNDER THE CIRCUMSTANCES, WE HAVE NO HESITATION IN CONFIRMING THE ADDITION IN PRINCIPLE. HOWEVER , AS OBSERVED EARLIER, THERE IS CLEARLY A DOUBLE ADDITION OF RS.15.07 LACS, EVEN AS POINTED OUT BY THE LD. AR. WE, ACCORDINGLY, UPHOLD THE ADDITION AT RS.37,38,125/ - . THE ASSESSEE GETS PART RELIEF. WE DECIDE ACCORDINGLY. 48 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT 60. GROUND # 6 IS IN RESPECT OF A N ADDITION OF RS.53 LACS ON ACCOUNT OF UNEXPLAINED PAYMENT TO ONE SYED AHMED ABBAS NAQVI (SN). PAGES 3 AND 3A (OF THE LOOSE PAPERS) SEIZED DURING SEARCH ON 05.1.2007 FROM THE MUMBAI (ANDHERI WEST) RESIDENCE OF SN, READ AS UNDER (APB 14, PGS. 2119 - 2128): P AGE NO. 3A CONTAINS THE FOLLOWING NOTINGS: TO TAKE FROM (TAPURIAHJI) TAPURIAJIS A/C. 1.32 CR FOR DIAMOND 3 LACS GIVEN TO KHAN (KHAN) 5 LACS GIVEN TO FAISAL (BY APPA) 10,000/ - POUNDS I.E. 9 LACS IN LONDON 10,000/ - POUNDS I.E. 9 LACS IN LONDON TOTA L 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 IN CALCUTTA 15 LACS 14.02.06 5 LACS 16.02.06 8 LACS 13.04.06 BALANCE 1.05 CR AS ON 16.4.2006 RS. 3 LACS RECEIVED F ROM MR. T. BALANCE 1.02 CR AS ON 23.5.06 THE PAPER SHOWS THAT RS.53 LACS WERE RECEIVED BY SH. NAQVI FROM THE ASSESSEE AT VARIOUS PLACES AND DATES. THUS, LEAVING PAYABLE AT RS.1.05 CRORE AS ON 16.4.2006. RS. 3 LACS WERE AGAIN RECEIVED FROM MR. T THEREB Y REDUCING BALANCE TO RS.1.02 CRORE AS ON 23.5.2006. PAGE NO. 3 IS AS FOLLOWS: FROM & TO MR. TAPURIAH RATE 90,000 USD = I.E. (44.60 RS.) = 40 LACS RECEIVED FROM MR. TH 24 LACS GIVEN TO MR. KHAN }ON 49 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT 9 LACS GIVEN TO MR. KHAN }MR. TAPURIAHS 8 LACS GIVEN TO MR. KHAN } A/C. TOTAL 41 LACS GIVEN THIS WORD IS SCORED OUT/ 41 LACS GIVEN TO MR. KHAN BY MUNNA 40 LACS RECEIVED IN USE 90,000 BALANCE 1 LAC AND 1.5 LAC TICKET. 25,000 USD I.E. 11 LACS RECEIVED FROM MR. TAPURIAH LESS: BALANCE 2.5 LACS 11 = 8 .5 LACS AS ON 16.4.2006 ON THE BASIS OF THE SAID DO CUMENTS, A TOTAL OF RS.107 LACS (I.E., RS.56 LACS AS PER PG. 3A AND RS.51 LACS AS PER PG.3), WAS PAID BY THE ASSESSEE TO SN, WHO VIDE A STATEMENT OF OATH U/S. 132(4) DATED 05.1.2007 STATED THAT THE AMOUN T/S RECEIVED WERE TOWARD PAYMENTS IN RESPECT OF THE TRANSACTIONS BETWEEN THE ASSESSEE AND M/S. SOIR JEWELLERS AND, ACCORDINGLY, THE AMOUNTS WERE GIVEN TO ONE, MR. IMTIAZ (OF SOIR JEWELLERS SJ), ON ASSESSEES BEHALF. COPY OF THE ASSESSEES ACCOUNTS IN THE BOOKS OF SOIR JEWELLERS REFLECTED PAYMENT/S RECEIVED FROM KT (ASSESSEE) AT RS.84 LACS (DURING F.Y. 2005 - 06) AND AT RS.19 LACS (DURING F.Y. 2006 - 07, IN APRIL, 2006), I.E., AT A TOTAL OF RS.103 LACS. ACCORDINGLY, IT WAS INFERRED THAT OUT OF RS.107 LACS RECE IVED BY SN FROM THE ASSESSEE, RS.103 LACS WERE GIVEN TO SJ. THE SAME, TO THE EXTENT PERTAINING TO THE CURRENT YEAR (RS.53 LACS), WAS PROPOSED TO BE ADDED FOR A.Y. 2006 - 07, AND THE BALANCE RS.54 LACS FOR THE FOLLOWING YEAR (A.Y. 2007 - 08). THE ASSESSEE DENIE D THE TRANSACTIONS, STATING THAT ALL THAT SN HAD REQUESTED OF HIM WAS ASSISTANCE BY WAY OF FINANCE, AND THOUGH THE POSSIBILITY OF DIAMOND EXPORTS WAS DISCUSSED WITH HIM, THE SAME DID NOT MATERIALISE, ALSO DISCLAIMING THE TRANSACTIONS LISTED IN THE SEIZED P APERS (VIDE STATEMENT U/S. 132(4) DATED 11.1.2007). SN, ON BEING CONFRONTED WITH THE ASSESSEES STATEMENT, WOULD, IN REBUTTAL, ALLUDE TO THE DISHONOUR OF CHEQUE/S ISSUED BY CT IN FAVOUR OF SJ (PGS. 27, 28 OF ANNEXURE A2, SEIZED FROM THE ASSESSEES RESIDENC E) VIDE HIS STATEMENT DATED 21.3.2007. THE A.O. FOUND THE ASSESSEES DENIAL UNACCEPTABLE, AND MADE THE ADDITION FOR THE PROPOSED AMOUNTS, WHICH ARE THE SUBJECT MATTER OF GROUNDS 6 AND 7 OF THE APPEALS FOR A.YS. 2006 - 07 AND 2007 - 08 RESPECTIVELY. 50 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT IN APPEAL, THE ASSESSEE REITERATED HIS CLAIM OF NO DIAMONDS BEING PURCHASED, WITH THE LD. CIT(A) FINDING THE TRANSACTIONS AS BEING CORROBORATED AND CONFIRMED FROM THE ACCOUNTS OF SJ. THE COPY OF THE LAWYERS NOTICE (ON BEHALF OF SJ) ALONG WITH THE COPY OF DISHONOURE D CHEQUE, FOUND IN SEARCH FROM THE ASSESSEES RESIDENCE, FURTHER PROVED THE SAME. THE ADDITIONS FOR THE CONSECUTIVE YEARS, AT RS.53 LACS AND RS.54 LACS RESPECTIVELY, WERE CONFIRMED, SO THAT AGGRIEVED, THE ASSESSEE IS IN SECOND APPEAL. 61. WE HAVE HEARD TH E PARTIES, AND PERUSED THE MATERIAL ON RECORD. THE DOCUMENTS FOUND IN SEARCH FROM THE RESIDENCE OF ASSESSEE AND SN, AND THE LATTERS STATEMENT GIVEN IN EXPLANATION, TO EACH OF WHICH THE STATUTORY PRESUMPTION AS TO TRUTHFULNESS OF THEIR CONTENTS U/S. 292C SHALL APPLY, COUPLED WITH THE COPY OF THE ASSESSEES ACCOUNTS IN THE BOOKS OF SJ, CLEARLY ESTABLISH THAT PAYMENTS WERE MADE BY THE ASSESSEE TO SN, AS CLAIMED BY THE LATTER, IN ADJUSTMENT OF THE LIABILITY TO OR ON ACCOUNT OF SJ, EVEN AS REFLECTED IN THE SEI ZED DOCUMENT (PG. 3A), STATING A SUM OF RS.1.32 CR. FOR DIAMOND, AS WELL AS THE PAYEES BOOKS OF ACCOUNT. WHAT FOR, IF NOT TOWARD PAYMENT TO SJ, WERE THE PAYMENTS MADE BY THE ASSESSEE TO SN ? THE ACCOUNTS OF SJ PROVE THE LATTERS STATEMENT, EVEN IN THE ABSE NCE OF WHICH THE ASSESSEE WOULD YET BE LIABLE TO EXPLAIN THE PAYMENTS TO HIM (SN) . WHAT, THEN, IS THE EXPLANATION FOR THE PAYMENTS RECORDED AS RECEIVED FROM ASSESSEE IN THE BOOKS OF SJ. THE ASSESSEE DOES NOT DENY EITHER KNOWING SN OR HAK (STATED IN THE DOC UMENTS FOUND), OR EVEN SJ, ADMITTING TO HAVING DISCUSSED BUSINESS PLANS, WHICH THOUGH DID NOT MATERIALIZE. THEN, AGAIN, WHY WERE CHEQUES (FOR RS.125 LACS) ISSUED BY CT, HIS WIFE, TO SJ ? THE CHEQUE (# 684614) DATED 05.12.2005, SIGNED BY CT, IS ONLY DRAWN ON THE ASSESSEES SAVING BANK ACCOUNT (# 1051000011883) WITH THE DRAWEE BANK (HDFC) (APB 14/PGS.2126, 2128). AS REGARDS THE DEMAND FOR CROSS EXAMINATION OF SN, IT NEEDS TO BE APPRECIATED THAT THE LATTERS STATEMENTS IS ONLY IN EXPLANATION OF THE DOCUMENTS F OUND FROM HIS AND THE ASSESSEES RESIDENCE AND, ARE IN THE FACTS OF THE CASE, ONLY CORROBORATIVE. THE 51 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT REVENUES CASE IS NOT MADE ON THE BASIS OF, OR HINGES ON THE SAID STATEMENT ALONE, WHICH IS RATHER IN AGREEMENT WITH THE FACTS AS FOUND FROM THE VARIOUS D OCUMENTS SEIZED IN SEARCH. IT IS THE ASSESSEE WHO, THEREFORE, WOULD BE REQUIRED TO PRODUCE SN WHO HAS MERELY AFFIRMED THE TRUTHFULNESS OF THE DOCUMENTS FOUND IN SEARCH, EVEN OTHERWISE MANDATED BY LAW (SECTION 292 - C OF THE ACT). IN OUR VIEW, IT IS, ON THE CONTRARY, THE ASSESSEE WHO NEEDS TO EXPLAIN THE DOCUMENTS FOUND FROM HIS RESIDENCE IN RELATION TO THIS ADDITION, AS WELL AS TO HOW WAS SN IN THE KNOW OF THE SAME, I.E., THE DISHONOURED CHEQUE AND THE LAWYERS NOTICE. WE ARE CONSCIOUS THAT THE DATE/S OF TH E PAYMENT AS RECORDED IN THE BOOKS OF SJ DO NO MATCH WITH THAT IN THE SEIZED MATERIAL. IT IS THE LETTER, WHICH THOUGH FORMS THE PRINCIPAL DOCUMENT AND THE BASIS OF THE ADDITION. TWO, IT IS CLEAR THAT THE ASSESSEE, HAK AND SN MAINTAIN OPEN ACCOUNTS WITH EAC H OTHER, GIVING PAYMENTS TO ONE ANOTHER, OR ONE ANOTHERS BEHALF, FROM TIME TO TIME, TO BE ADJUSTED/SETTLED SUBSEQUENTLY. THIS ALSO EXPLAINS THE DIFFERENT BETWEEN RS.107 LACS PAID TO SN (AS PER PGS. 3, 3A) AND THE AMOUNT REFLECTED AS RECEIVED FROM THE ASSE SSEE (RS.103 LACS) IN THE ACCOUNTS OF SJ. THE MATTER IS PURELY FACTUAL, DECIDED BY US ON THE BASIS OF THE VARIOUS MATERIALS FOUND IN SEARCH, TO WHICH THE PRESUMPTION OF SECTION 292C SHALL ALSO APPLY, AS WELL AS THAT LED IN SUPPORT, VIZ. THE COPY OF THE ASS ESSEES ACCOUNT IN THE BOOKS OF SJ (F.YS. 2005 - 06 AND 2006 - 07). ACCORDINGLY, THE ASSESSEES RELIANCE ON THE DECISIONS IN THE CASE OF CBI VS. V. C. SHUKLA , AIR 1998 SC 1406 AND KISHINCHAND CHELLARAM VS. CIT [ 1980 ] 125 ITR 713( SC ) WOULD BE OF NO ASSISTANCE T HERETO. WE DECIDE ACCORDINGLY, CONFIRMING THE IMPUGNED ADDITION. 62. GROUND # 7: PAGES 1 AND 2 OF ANNEXURE A1 OF THE SEIZED MATERIAL FOUND FROM THE RESIDENCE OF SN REFLECTS PAYMENT/S OF GPB 20,000 (RS.18 LACS) TO THE ASSESSEE AS ON 25.10.2006. SN, PER HIS DEPOSITION U/S. 132(4) DATED 11.01.2007, EXPLAINED THE SAME TO HAVE BEEN GIVEN TO KT BY ONE OF HIS FRIENDS, SHABEEH ABBAS SAYED, FROM SEPTEMBER TO NOVEMBER, 2005. THE SAME WAS FURTHER SUPPORTED BY A CONFIRMATORY E - MAIL DATED 15.12.2008 FROM THE SAID SHABE EH ABBAS SAYED, ALONG WITH A COPY OF HIS 52 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT PASSPORT. THE ASSESSEE, ON BEING CONFRONTED WITH THE SAME, CONFIRMED HAVING FALLEN SICK IN LONDON, AND THAT, FEARING HOSPITALISATION, HAD REQUESTED FOR FUNDS FROM HIS FRIEND, SN, WHO ARRANGED FOR THE SAME THROUGH HI S FRIEND, SHABEEH SAYED. HOWEVER, AS THE ASSESSEE WAS NOT REQUIRED TO BE HOSPITALISED, THE ENTIRE AMOUNT BROUGHT (GPB 20000) BY THE SAID FRIEND WAS RETURNED THEN AND THERE (DECEMBER 2005). NO CASE FOR ADDITION IS THUS MADE OUT. IN THE VIEW OF THE AO, SHABE EH SAYED HAD CLEARLY STATED OF HAVING GIVEN GBP 20,000 TO KT (ASSESSEE) IN DECEMBER, 2005 FOR THE LATTERS MEDICAL NEEDS, WHICH WAS RETURNED BACK LATER. THE ASSESSEES DENIAL OF RECEIPT WAS, ACCORDINGLY, NOT ACCEPTED, AND THE IMPUGNED SUM ADDED AS INCOME B Y WAY OF UNEXPLAINED REPAYMENT, AND CONFIRMED FOR THE SAME REASON, SO THAT, AGGRIEVED, THE ASSESSEE IS IN SECOND APPEAL. 63. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. EVIDENCE IN RESPECT OF THE ASSESSEE HAVING BEEN PAID GPB 20,000 (E QUIVALENT TO INR 18 LACS) WAS FOUND IN THE MATERIAL SEIZED IN SEARCH FROM THE RESIDENCE OF SN. THE TRANSACTION IS EXPLAINED AS OCCASIONED BY THE ASSESSEES MEDICAL CONDITION IN LATE 2005, WHILE AT LONDON, REQUIRING FUNDS ON AN EMERGENT BASIS, FOR WHICH HE CONTACTED SN, WHO IN TURN ARRANGED THE SAME THROUGH HIS LONDON BASED FRIEND, SHABEEH ABBAS SAYED. MR. SAYED CONFIRMS THE TRANSACTION, FURTHER STATING TO HAVE RECEIVED BACK THE MONEY LATER. THE STATEMENTS OF SN, THE ASSESSEES CLOSE FRIEND AND CONFIDANT, AN D MR. SAYED , ARE CONFIRMATORY, AND IN AGREEMENT WITH THE SEIZED MATERIAL, WHICH IS TO BE REGARDED AS TRUE BY LAW (SECTION 292 - C). THE ASSESSEE, WHILE ADMITTING TO THE CIRCUMSTANCE OF HIS, ON ACCOUNT OF HIS MEDICAL PROBLEMS, HAVING SOUGHT FUNDS AT LONDON, C ONTACTING SN FOR THE PURPOSE, STATES THAT MONEY WAS RETURNED THEN AND THERE . NOW, IT IS NOBODYS CASE THAT THE ASSESSEE OWES EITHER SN OR MR. SAYED ANY SUM ON THAT ACCOUNT. THE QUESTION, THEREFORE, IS WHETHER IT WAS ACCEPTED IN THE FIRST PLACE OR NOT. THE OBLIGATION TO EXPLAIN THE SOURCE (OF REPAYMENT) SHALL ARISE ONLY IN CASE OF THE FORMER, RESULTING IN AN ADDITION (TO THE RETURNED INCOME) WHERE NOT SATISFACTORILY 53 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT EXPLAINED. THE ASSESSEES EXPLANATION OBVIATES THAT NEED BY STATING THAT THE MONEY, THOUG H OFFERED, WAS IN FACT NOT ACCEPTED IN - AS - MUCH AS HE WAS NOT REQUIRED TO BE HOSPITALISED. THE EXPLANATION IS CONTRARY TO THE CLEAR EVIDENCE OF THE ASSESSEE BEING GIVEN UK POUNDS 20,000 AT LONDON IN LATE 2005. WHY, ONE MAY ASK, WOULD IT BE RECORDED IF NO MONEY HAD IN FACT EXCHANGED HANDS ? THAT IS, THE ASSESSEES EXPLANATION CHALLENGES THE VERY BASIS OF RECORDING THE TRANSACTION, BY DENYING IT, WHILE AT THE SAME TIME NOT DENYING THE CIRCUMSTANCES AND THE BACKGROUND FACTS LEADING TO IT. ON WHAT BASIS ? T HE ASSESSEES STATING OF BEING NOT HOSPITALISED AS THE REASON, IS NEITHER HERE NOR THERE. THERE IS, FIRSTLY, NO BASIS OR MATERIAL OF IT BEING SO, I.E., OF BEING NOT HOSPITALISED. THEN, THE QUESTION IS: HOW IS IT RELEVANT ? THE EXPLANATION IS SANS ANY DETAIL S AS FOR EXAMPLE THE STATEMENT OF MEDICAL EXPENSES INCURRED (SUITABLY SUPPORTED), MATCHING IT WITH THE FUNDS AVAILABLE WITH THE ASSESSEE THEREAT (ALSO INCLUDING THAT EXPENDED DURING HIS STAY ABROAD) AND, THUS, JUSTIFYING THE CLAIM THAT THE NEED FOR FUNDS WOULD ARISE ONLY IN CASE OF HOSPITALISATION. RATHER, AS APPARENT, THE FUNDS WERE CLEARLY REQUIRED ON AN EMERGENT BASIS IN VIEW OF HIS MEDICAL CONDITION, AND WOULD, UNDER NORMAL CIRCUMSTANCES, BE ACCEPTED, IF ONLY BY WAY OF ABUNDANT PRECAUTION, I.E., EVEN IF HOSPITALISATION WAS NOT ULTIMATELY NEEDED, ASSUMING IT WAS THIS THAT HAD PROMPTED THE REQUISITION (FOR FUNDS) IN THE FIRST PLACE. THE ONUS TO PROVE THAT THE APPARENT IS NOT REAL IS ON THE PERSON WHO SO ALLEGES, THE ASSESSEE IN THE PRESENT CASE, WHO IN F ACT ADMITS THE ENTIRE SEQUENCE OF EVENTS, EXCEPT FOR BEING GIVEN FUNDS, QUA WHICH THERE IS EVIDENCE ON RECORD. THE ASSESSEE IN FACT SUFFERS, AS A REFERENCE TO HIS BAIL APPLICATIONS SHALL SHOW (APB - 4/PGS. 773 - 798) , FROM SERIOUS MEDICAL PROBLEMS, WHICH ONLY GET ACCENTUATED WITH ADVANCING AGE. THE BURDEN THEREFORE TO REBUT THE SAME, INCLUDING BY WAY OF CROSS - EXAMINATION (OF THE PERSONS WHO WERE PART OF THE EVIDENCE, AND HAD ISSUED CORROBORATIVE STATEMENT/S), IS ON THE ASSESSEE, WHOSE PLEA QUA THE SAME, PUTTI NG THE BLAME FOR ITS NON - CONDUCT AT THE DOOR OF THE REVENUE, IS NOT MAINTAINABLE, AS IS HIS RELIANCE ON THE 54 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT DECISIONS IN THE CASE OF V. C. SHUKLA (SUPRA) AND KISHINCHAND CHELLARAM ( SUPRA ) THE MATTER BEING PRINCIPALLY FACTUAL. IN FACT, THE ASSESSEE STATI NG IN APPELLATE PROCEEDINGS, RELYING ON THE LETTER OF MR. SAYED, THAT THE AMOUNT WAS RETURNED IN LONDON ITSELF, IS CONFIRMATORY AND AN ADMISSION OF IT BEING RECEIVED/ACCEPTED IN THE FIRST PLACE. THAT IT WAS RETURNED IN LONDON FURTHER ESTABLISHES OF REPAY MENT BEING IN THE SAME FINANCIAL YEAR, THE S OURCE OF WHICH THOUGH REMAINS UNEXPLAINED. WE DECIDE ACCORDINGLY, CONFIRMING THE ADDITION. 64. GROUNDS # 8 TO 11 ARE TOWARD UNEXPLAINED TRAVEL EXPENDITURE, FOUND ON THE BASIS OF THE SEIZED MATERIAL, BEING ANNEXU RE A1 (PG. 109/GD. # 8) AND ANN. A2 (PGS. 40, 41 & 46 QUA GDS. 9 - 11) TO THE PANCHANAMA DATED 06.1.2007. THE SAME STAND DISCUSSED AT PARAS 8(III), 9(I) TO 9(III) OF THE ASSESSMENT ORDER. IN EACH CASE, THE PAYMENTS STAND ADMITTED, THE EVIDENCE BEING IN THE F ORM OF PASSENGER TICKETS IN THE ASSESSEES NAME AND/OR PAYMENTS MADE TO THE TRAVEL AGENTS AND, THUS, IRREBUTABLE. THE ASSESSEES PLEA OF THE PAYMENT/S BEING MADE ONLY FOR SELF, AND NOT FOR HAK - IN CASE OF COMMON TICKETS, IS UNDERSTANDABLE AND MERITS ACCEP TANCE UNLESS OF - COURSE THE PAYMENT/S QUA THE SAME IS ALSO RECORDED IN THE ACCOUNTS OF THE TRAVEL AGENT IN THE ASSESSEES NAME. THE PAYMENTS ARE FOR MOST PART ADMITTED, STATED TO BE RECORDED IN THE BOOKS OF THE ASSESSEES (HUF) OR HIS WIFE, CHANDRIKA TAPU RIAH (CT) OR R. M. INVESTMENT & TRADING CO. P. LTD. (RMI), EITHER DIRECTLY OR THROUGH PERSONAL EXPENSES/WITHDRAWALS. THE SAME STOOD NOT ACCEPTED BY THE REVENUE IN THE ABSENCE OF THE ASSESSEE LEADING EVIDENCE TOWARD THE SAME. SURELY, PERSONAL WITHDRAWALS CA NNOT BE ON AN OMNIBUS ACCOUNT TO EXPLAIN ANY EXPENDITURE. THESE ARE SPECIFIC PAYMENTS, OCCASIONED BY SPECIFIC EVIDENCE/S. NO CASE FOR SUFFICIENCY OF WITHDRAWALS, WHICH ARE PRIMARILY FOR REGULAR AND HOUSEHOLD EXPENDITURE, IS ALSO MADE OUT. THE LD. AUTHORIZE D REPRESENTATIVE (AR) WOULD BEFORE US MAKE REFERENCE TO SEVERAL PAGES OF PB 6, VIZ. FROM 1039 TO 1054 (SOME OF WHICH ARE SEIZED), RAISING THE ISSUE OF THE EXPENDITURE BEING ACCOUNTED AND, FURTHER, OF DOUBLE ADDITIONS. WE, CONSIDERING THE TOTALITY OF THE 55 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT FA CTS, ONLY CONSIDER IT PROPER THAT THE MATTER IS RESTORED BACK TO THE FILE OF THE A.O. FOR DETERMINATION AFRESH. THE ONUS TO PROVE HIS CASE THOUGH WOULD ONLY BE ON THE ASSESSEE. THE A.O. SHALL DECIDE IN ACCORDANCE WITH LAW, ISSUING DEFINING FINDINGS OF THE FACT. WHERE PAYMENTS IN CASH ARE ASCRIBED TO PERSONAL WITHDRAWALS, THE MATTER WOULD NECESSARILY REQUIRE VISITING THE ASPECT OF ADEQUACY OF SUCH WITHDRAWALS, CONSIDERING THE ASSESSEES LIFESTYLE, INCLUDING ON HEALTH CARE, BESIDES OF - COURSE THE AVAILABILITY OF CASH ON THE DATE/S OF PAYMENT/S. THEN THERE IS THE ASPECT OF DUPLICATION, VEHEMENTLY MADE OUT DURING HEARING, NOT AS MUCH AS PAYMENTS COULD BE MADE THROUGH CREDIT CARDS, FOR WHICH SEPARATE ADDITION/S HAVE BEEN MADE, AND FINALLY SETTLED THROUGH CHEQUE/S, AND WHICH COULD BE DULY ACCOUNTED. WE DECIDE ACCORDINGLY. 65. GDS. # 12 AND 13 ARE IN RESPECT OF ADDITIONS BASED ON SEIZED MATERIAL, BEING DIFFERENT PAGES OF ANNEXURE A2 AND A3 (TO THE PANCHANAMA DATED 06.1.2007), DISCUSSED AT PARAS 9(V) AND 10 RESPECTIV ELY OF THE ASSESSMENT ORDER, AND ARE TAKEN UP TOGETHER IN - AS - MUCH AS THE CASE OF THE PARTIES QUA THESE GROUNDS IS THE SAME. THE SAME RELATES TO THE SOURCE OF THE PAYMENT OF ELECTRICAL (RS.1,04,645/ - ) AND TELEPHONE (RS.39,919/ - ) EXPENSES RESPECTIVELY FOR TH E CURRENT YEAR (F.Y. 2005 - 06), WHICH THE ASSESSEE (VIDE HIS REPLY DATED 01.12.2008) EXPLAINED TO BE IN CASH OUT OF PERSONAL DRAWINGS IN HUF ACCOUNT, BESIDES IN CASE OF TELEPHONE EXPENSES, IN CASH AND CHEQUE/S IN HIS ACCOUNT AND OF HIS WIFE. ALSO, THE PAY MENT FOR THE ELECTRICAL BILL, WAS MADE ONLY IN PART (RS.55,000/ - ), THE BALANCE BEING DISPUTED. THE SAME, HOWEVER, CAME TO BE ADDED AND CONFIRMED IN THE ABSENCE OF SUBSTANTIATION OF HIS CLAIMS BY THE ASSESSEE, SO THAT, AGGRIEVED, HE IS IN SECOND APPEAL. 66 . WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. IN OUR CONSIDERED VIEW, THE CLAIM QUA ELECTRICAL EXPENSES, REPRESENTED BY A BILL DATED 26.12.2005 (APB 6, PG. 1055) FOR ELECTRICAL WORKS (FOR RS.1.05 LACS), IS A SPECIFIC EXPENSE, OCCASIONED BY A REQUIREMENT FOR THE SAME. PAYMENT OF THE SAME COULD NOT THUS BE EXPLAINED OUT OF REGULAR WITHDRAWALS (WHICH HAVE NOT SHOWN TO BE IN EXCESS 56 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT OVER PRECEDING YEAR TO THAT EXTENT) AND, IN FACT, TO THE EXTENT OF RS.55,000/ - ARE DETAILED IN THE BILL ITSELF. ALSO, THERE IS NOTHING TO EXHIBIT OF THE BALANCE BEING IN DISPUTE OR NOT PAID, THE REPAIR WORK IN FACT CONTINUING UPTO 30.11.2005, OVER 2 MONTH AFTER THE LAST PAYMENT OF RS.10,000/ - WAS MADE ON 28.9.2000. AS REGARDS THE TELEPHONE EXPENSES, THE SAME ARE IN THE NATURE OF REGULAR EXPENSES. HOWEVER, THE BILLS FOUND ARE FOR A PART OF THE YEAR (COMMENCING FROM 15.1.2006 UP TO 01.2.2008), WORKING TO AN AVERAGE OF RS.26,000/ - P.M. THE EXPENDITURE FOR F.Y. 2006 - 07, CORRESPONDING TO A.Y. 2007 - 08, IS AT RS.3.41 LACS, WHICH YIELDS AN AVERAGE OF RS.28,000/ - PM. TO STATE THEREFORE THAT RS.50,000/ - (OUT OF THE WITHDRAWAL OF RS.3 LACS FOR THE YEAR) AND RS.2,80,000/ - (WITHOUT SPECIFYING THE TOTAL WITHDRAWAL FOR THE YEAR) FROM HUF ACCOUNT, BE APPROPRIATED TOWARD TELEPHONE EXP ENSES, IS OBFUSCATING, RATHER THAN ADDRESSING THE ISSUE, BY ISSUING A GROSS STATEMENT. WE COULD UNDERSTAND WHERE THE ASSESSEE SAYS OF HAVING MADE A REGULAR, MONTHLY WITHDRAWAL OF RS. XXX (SIG NIFYING THE SAME), OF WHICH RS. XXXX (STATING THE AMOUNT) IS TOWAR D MONTHLY TELEPHONE EXPENSES, WHICH WOULD ONLY BUT BE A SMALL PART OF THE TOTAL EXPENDITURE THAT THE PERSONAL/HOUSEHOLD WITHDRAWAL IS TOWARD, FOCUSSING THUS ON THE ADEQUACY THEREOF WITH REFERENCE TO SUCH EXPENDITURE. THE EXPLANATION IS WHOLLY UNSATISFACTOR Y, BESIDES BEING UNSUBSTANTIATED. SOME OF THE IMPUGNED EXPENDITURE IS STATED TO BE PAID BY CHEQUE, AND WHICH COULD WELL BE FROM AN EXPLAINED SOURCE. WE, ACCORDINGLY, CONSIDER IT PROPER TO RESTORE THE MATTER QUA GD.13 TO THE FILE OF THE A.O. TO ENABLE THE A SSESSEE TO SATISFY HIM WITH REGARD TO THAT PART OF THE EXPENDITURE STATED AND SHOWN BY CHEQUE, AS BEING FROM EXPLAINED SOURCE/S. WE DECIDE ACCORDINGLY, AND THIS ALSO DECIDES GROUND 16 FOR A.Y. 2007 - 08. 67. GROUND 14 IS TOWARD AN ADDITION FOR RS.74,100/ - ON ACCOUNT OF INTEREST AND BROKERAGE. THE SAME ST AND S DISPOSED VIDE AT PARA S 8 - 9 OF THIS ORDER, DECIDING GD. 7 FOR A.Y. 2001 - 02; THE RESPECTIVE CASE S OF BOTH THE PARTIES BEING THE SAME. 57 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT 68. GROUND 15 IS TOWARD AN ADDITION FOR RS.4,20,000/ - ON ACCOUNT OF INTEREST INCOME AND RS.12,000/ - ON ACCOUNT OF INTEREST. THE SAME STAND S DISPOSED VIDE AT PARA S 10 - 11 OF THIS ORDER, DECIDING GD. 8 FOR A.Y. 2001 - 02; THE RESPECTIVE CASE S OF BOTH THE PARTIES BEING THE SAME. 69. GROUND 16 IS TOWARD ADDITION QUA UNEXPLAINE D CASH IN HAND ( RS.25,95,000/ - ), AND STANDS DISPOSED VIDE PARA 4 8 - 4 9 OF THIS ORDER, DECIDING GD. 8 FOR A.Y. 2005 - 06; THE RESPECTIVE CASE S OF BOTH THE PARTIES BEING THE SAME. 70. GROUND 17 IS TOWARD AN ADDITION FOR RS.8,52,867/ - ON ACCOUNT OF CREDIT CARD EXPENSES. THE SAME STAND S DISPOSED VIDE AT PARA S 12 - 13 OF THIS ORDER, DECIDING GD. 9 FOR A.Y. 2001 - 02; THE RESPECTIVE CASE S OF BOTH THE PARTIES BEING THE SAME. 71. GROUND # 18 IS IN RESPECT OF AN ADDITION IN THE SUM OF RS.8,80,227/ - TOWARD UNEXPLAINED EX PENDITURE ON FOREIGN TRAVEL, AS FOUND FROM THE INFORMATION GATHERED FROM THE ASSESSEES TRAVEL AGENT, M/S. TRAVEL HUB PVT. LTD., KOLKATA. THE DATE OF JOURNEY (SPECIFYING THE PLACE) AS WELL AS OF BOOKING, ALONG WITH THE AMOUNT BILLED, IS TABULATED AT PARA 1 4 OF THE ASSESSMENT ORDER, DISCUSSING THE SAID ADDITION. THE ASSESSEES CASE OF THE EXPENDITURE BEING ACCOUNTED, WITHOUT EXHIBITING THE SAME, LED TO ITS CONFIRMATION, SO THAT HE IS IN SECOND APPEAL. THE ASSESSEES CASE BEFORE US REMAINS THE SAME, I.E., OF THE SAME BEING ACCOUNTED, BESIDES ALSO RESULTING IN DOUBLE ADDITION IN - AS - MUCH AS THE PART OF THE EXPENDITURE IS ALSO INCLUDED WHILE MAKING THE ADDITION FOR TRAVEL EXPENDITURE (GROUNDS 8 - 11). WE ALSO OBSERVE THAT THE BOOKING DATES OF SAME JOURNEYS DO NOT F ALL DURING THE RELEVANT PREVIOUS YEAR. WE, ACCORDINGLY, ONLY CONSIDER IT PROPER TO RESTORE THIS MATTER BACK TO THE FILE OF THE A.O. TO ALLOW THE ASSESSEE ONE FINAL OPPORTUNITY TO SATISFACTORY EXPLAIN THE SOURCE OF THE EXPENDITURE, AS WELL AS TO REMOVE THE APPARENT ANOMALIES. THE A.O. SHALL DECIDE IN ACCORDANCE WITH THE LAW, ISSUING DEFINING FINDINGS OF FACT. WE DECIDE ACCORDINGLY. 58 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT 72. GROUND # 19 IS IN RESPECT OF AN ADDITION FOR RS.6,48,665/ - TOWARD PURCHASE OF FOREIGN EXCHANGE. THE CASE OF THE PARTIES IS THE SAME AS QUA G ROUND 18, SO THAT WE HAVE NO REASON TO TAKE A DIFFERENT VIEW, AND DECIDE LIKEWISE (ALSO REFER PARAS 31 - 32) . 73. GROUND 20 RELATES TO AN ADDITION QUA UNEXPLAINED EXPENDITURE INCURRED DURING THE RELEVANT PREVIOUS YEAR IN FOREIGN EXCHANGE (GBP 2488), I.E., AT RS.25,765/ - , BEING TOWARD BOOKING OF TWO ROOMS IN A HOTEL, PAID FOR IN CASH. THE ADDITION STOOD MADE BASED ON THE INFORMATION RECEIVED FROM FBT DIVISION OF CBDT. THE SAME STANDS DISCUSSED AT PARAS 16 AND 24 OF THE ASSESSMENT AND THE IM PUGNED ORDER RESPECTIVELY. THE ASSESSEE HAS BEFORE BOTH THE AUTHORITIES FAILED TO MAKE OUT ANY CASE, RELYING ON VAGUE AND GENERAL SUBMISSIONS AS TO BEING MADE OUT OF PERSONAL WITHDRAWALS. ACCORDINGLY, FINDING NO MERIT IN THE ASSESSEES EXPLANATION, WE CONF IRM THE ADDITION. 74. GROUNDS # 21 AND 22 ARE IN RESPECT OF UNEXPLAINED EXPENDITURE (AT RS.81,727/ - ) AND UNEXPLAINED LOANS AND CREDITORS (RS.33,09,861/ - ). THE SAME STANDS DISCUSSED AT PARAS 17 AND 25 OF THE ASSESSMENT AND THE IMPUGNED ORDER RESPECTIVELY. THE CASE OF BOTH THE PARTIES BEING THE SAME, I.E., AS FOR GDS. 10 AND 11 RESPECTIVELY FOR A.Y. 2001 - 02, WE DECIDE LIKEWISE. 75. GROUND # 23: THE ASSESSEE RETURNED SHORT - TERM CAPITAL GAIN (STCG) AT RS.25,31,868/ - , PAYING THE TAX THEREAT AT THE RATE OF 10 %, WHICH IS CLAIMED TO BE THE APPLICABLE RATE FOR THE SAME. THE A.O., HOWEVER, APPLIED THE NORMAL RATE OF TAX IN THE ABSENCE OF THE ASSESSEE BEING ABLE TO SUBSTANTIATE HIS CLAIM BEFORE HIM IN ANY MANNER, AND WHICH CONTINUED BEFORE THE LD. CIT(A) AS WELL, L EADING TO HIS CONFIRMATION OF THE ASSESSMENT ORDER (REFER PARA 17.1 AND 29 OF THE ASSESSMENT AND THE IMPUGNED ORDER RESPECTIVELY). THE ASSESSEES CLAIM BEFORE US IS THAT THE AMOUNT STANDS DULY RETURNED AS STCG PER ITS ORIGINAL RETURN U/S. 139, FILED ON 28. 5.2008 AT RS.25,82,844/ - (THE ASSESSMENT ORDER THOUGH RECORDS THE SAID DATE AS 26.5.2008 AT PARA 19 THEREOF, WHICH THOUGH UNDER THE CIRCUMSTANCES, WOULD BE OF LITTLE CONSEQUENCE) AND, FURTHER, IS 59 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT BACKED BY MATERIALS. WE, FOR THE SAME REASONS AS INFORM OU R DECISION WITH REGARD TO GD. 14 FOR A.Y. 2005 - 06, DECIDE LIKEWISE. 76. GDS. 24 & 25 ARE IN RESPECT OF DENIAL OF DEDUCTION U/S. 80G (RS.2,683/ - ) AND U/S. 80D (RS.18,780/ - ) CLAIMED BY THE ASSESSEE PER HIS RETURN OF INCOME. THE BASIS FOR THE SAID DENIAL IS THE ABSENCE OF SUBSTANTIATION OF HIS CLAIM BY THE ASSESSEE (REFER PARAS 17.2 AND 27 OF THE ASSESSMENT AND THE IMPUGNED ORDER RESPECTIVELY). THE SUBJECT MATTER AS WELL AS THE CASE OF THE RESPECTIVE PARTIES IS THE SAME AS FOR GROUNDS 15 AND 16 FOR A.Y. 2005 - 06. IN VIEW THEREOF, WE DECIDE LIKEWISE, ALLOWING THE ASSESSEES CLAIM. WE DECIDE ACCORDINGLY. 77. GROUND # 26 IS MERELY A RECOUNT OF THE DIFFERENT GROUNDS IN THE FORM OF A PRAYER, WHILE GROUND 27 IS TOWARDS A LEAVE TO ADD OR ALTER ANY GROUND OF AP PEAL. THE SAME, THEREFORE, DO NOT ARISE FOR ADJUDICATION. WE DECIDE ACCORDINGLY. A.Y. 2007 - 0 8 78. GROUND 1: THE ASSESSMENT FOR THIS YEAR IS DISTINGUISHABLE FROM THAT FOR THE PRECEDING YEARS IN - AS - MUCH AS NO RETURN WAS ADMITTEDLY FILED U/S. 139 OF THE A CT AND, TWO, IS FRAMED U/S. 144 OF THE ACT. THE SEARCH CONDUCTED, BEING PRIOR TO THE CLOSE OF THE RELEVANT PREVIOUS YEAR, THE SEARCH YEAR, THERE IS NO QUESTION OF THE ASSESSEE HAVING FILED THE RETURN BY THAT DATE OR OF THE ASSESSMENT PROCEEDINGS HAVING CO MMENCED. THE A.O. ACCORDINGLY RETAINS ORIGINAL JURISDICTION, AND THE ASSESSMENT, IN OUR VIEW, IS U/S. 153A R/W S. 144 OF THE ACT. THE SAME WOULD THUS NOT STAND RESTRICTED TO THE MATERIAL FOUND IN SEARCH. ABUNDANT OPPORTUNITIES TO REPRESENT HIS CASE WERE PR OVIDED TO THE ASSESSEE, WHICH COMMENCED WITH THE ISSUE OF A QUESTIONNAIRE ON 29.01.2008, CONTINUING WITH THE ISSUE OF QUESTIONNAIRES AND NOTICES UP TO 19.12.2008. COPIES OF THE DOCUMENTS SEIZED FROM THE RESIDENCE OF THE ASSESSEE, AS WELL AS OF HAK AND SN, WERE SUPPLIED TO HIS REPRESENTATIVE, SHRI PRADEEP SHAH, CA, ON 05.9.2008, 17.11.2008 AND 21.11.2008. NO RETURN, DESPITE NOTICE U/S. 142(1), BEING FILED, WITH THE ASSESSEE 60 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT ALSO FAILING TO MAKE COMPLIANCE, NOT RESPONDING EVEN TO SUMMONS U/S. 131 DATED 16.12. 2008, THE ASSESSMENT WAS FINALLY FRAMED U/S. 144 AFTER DULY SHOW CAUSING THE ASSESSEE QUA THE SAME (VIDE LETTER DATED 01.12.2008), ALSO INFORMING THAT THE ASSESSMENT WAS GETTING TIME BARRED ON 31.12.2008, TO NO RESPONSE, EVEN AS SHRI PRADIP SHAH WAS AGAIN CONVEYED THIS VIDE ORDER SHEET ENTRY DATED 01.12.2008. REFERENCE IN THIS REGARD MAY BE MADE PARAS 2 - 7 (PGS.1 - 7) OF THE ASSESSMENT ORDER. WE, ACCORDINGLY, FIND NO INFIRMITY IN THE FRAMING OF ASSESSMENT U/S. 144, NOR WAS ANY BROUGHT TO OUR NOTICE DURING HEAR ING. THIS ASPECT, I.E., OF THE ASSESSMENT BEING WITHOUT JURISDICTION AND BAD IN LAW, AGITATED PER GROUND 1, WAS IN FACT NOT RAISED BEFORE THE FIRST APPELLATE AUTHORITY, WHOSE ORDER IS THEREFORE SANS ANY DISCUSSION IN THE MATTER. THE ASSESSEE FAILS ON ITS GD. 1, WHICH IS ACCORDINGLY DISMISSED. 79. GROUND S # 2 TO 4 , COMMON FOR ALL THE YEARS, STAND DECIDED VIDE PARAS 4 AND 5 OF THIS ORDER. 80. GROUND # 5: ANNEXURE A1 TO PANCHANAMA DATED 06.1.2007 IS A BUNCH OF SEIZED MISCELLANEOUS PAPERS, CONTAINING 110 PAGES. PAGE 46 THEREOF IS A LIST OF EXPENSES (RS.17,29,000/ - ) WHICH WERE EXPLAINED BY THE ASSESSEE TO BE AN ESTIMATE DRAWN TO MEET CERTAIN LIABILITIES. THE SAME WERE EXPECTED TO BE MET BY SALE OF DIFFERENT SHARES (SPECIFIC) BELONGING TO SELF AND WIFE (CT) , DULY REFLECTED IN THEIR RESPECTIVE PERSONAL BALANCE - SHEETS. THE SAME DID NOT FIND APPROVAL OF THE REVENUE AUTHORITIES AS THE CLAIM/S WAS UNSUBSTANTIATED; THE ASSESSEE NOT PRODUCING BOOKS OF ACCOUNT, RECONCILING THE SAME THEREWITH. AGGRIEVED, THE ASSESSEE IS IN SECOND APPEAL. 81. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. THE RELEVANT PAGE OF ANNEXURE 1 IS FURNISHED AT PAGE 1138 (OF APB 6). THE DETAIL OF THE VARIOUS EXPENSES LISTED, AGGREGATING TO RS.17.29 LACS, IS EXPLICIT, AND IN TH E NATURE OF REGULAR EXPENDITURE, VIZ. TOWARD CREDIT CARDS, ELECTRICITY AND TELEPHONE EXPENSES, RENT, STAFF SALARY AND BONUS, CAR INSTALMENTS, ETC. (WITH SOME ALSO REFERRING TO THE RELEVANT 61 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT MONTH/S, BEING FROM JUNE TO NOVEMBER, 2006). THERE IS NO QUESTION O F IT BEING, AS STATED BY THE ASSESSEE, AN ESTIMATE OF CERTAIN LIABILITIES TO BE MET IN FUTURE. UNLESS, THEREFORE, THE ASSESSEE EXPLAINS THE SAME WITH REFERENCE TO ITS ACCOUNTS (OR OTHERWISE) THE SOURCE THEREOF, THE SAME ARE LIABLE TO BE ADDED AS UNEXPLAINE D EXPENDITURE U/S. 69C OF THE ACT. WHETHER THE SAME HAVE BEEN MADE, ADMITTED TO BE IN PART, FROM THE SALE PROCEEDS OF THE SHARES (IN REDICO AND GHCL), ALSO LISTED ALONGSIDE (ON THE SAME PAGE), VALUED AT RS.11.50 LACS (OUT OF A TOTAL FOUR SHARES VALUED AT R S.20.50 LACS), IS A QUESTION OF FACT, NOT PROVED; THE ASSESSEE AS MUCH AS NOT PRODUCING HIS BOOKS OF ACCOUNT, STATED TO BEAR THE SAID SHARES, SOME OF WHICH ARE FURTHER STATED TO BE SOLD, AND WHICH (SALE) ALSO STANDS REFLECTED THEREIN. THAT IS, THE SAID SAL E IS THE ASSESSEES EXPLANATION TOWARD THE SOURCE TO WHATEVER EXTENT, OF THE SAID EXPENDITURE. ADMITTEDLY, ONLY SOME OF THE SHARES HAVE BEEN SOLD LATER, SO THAT THE LISTING OF THE SHARES ON THE SAID PAGE CAN AT BEST BE STATED AS OF THE HOLDING, STATED TO WARD THE INTENT OF BEING SOLD. IT COULD WELL BE THAT THE OTHER SHARES WERE NOT SOLD (OR REQUIRED TO BE), OR EVEN THAT THE SAME, THOUGH BELONGING TO THE ASSESSEE, ARE NOT DISCLOSED. THERE IS NO INDICATION OF THE EXPENDITURE BEING KEPT IN ABEYANCE AND NOT MA DE ON A REGULAR BASIS, BEING EVEN OTHERWISE OF A RECURRING NATURE, AND NOT DISCHARGING WHICH COULD LEAD TO DISRUPTION IN THE RELEVANT SERVICE OR EVEN PENAL CONSEQUENCES, VIZ. ELECTRICITY, TELEPHONE, RENT, CAR INSTALMENTS, CREDIT CARD, ETC. THE MATTER IS PR IMARILY FACTUAL AND THE RELEVANT FACTS WOULD NEED TO BE ESTABLISHED. WHEN WERE (AND HOW MANY) THE SHARES WERE SOLD; AT WHAT PRICE; WHEN WERE THE SALE PROCEEDS RECEIVED AND HOW WERE THEY APPLIED, WOULD BE AMONG THE PERTINENT QUESTIONS (OF FACT). THEN, AGAIN , IS THE QUESTION OF SALE OF SHARES BEING OFFERED TO TAX, WHERE EXIGIBLE. THE ASSESSEE HAS SINGULARLY FAILED TO DISCHARGE THE BURDEN OF PROOF ON HIM. WE, UNDER THE CIRCUMSTANCES, CONSIDER IT PROPER TO RESTORE THE MATTER BACK TO THE FILE OF THE A.O. TO ALLO W THE ASSESSEE ONE FINAL OPPORTUNITY TO SUBSTANTIATE HIS CLAIMS WITH ALL THE RELEVANT MATERIAL OR EVIDENCES. IF THE ADMITTED SOURCE, TO THE EXTENT ACCEPTED, LEADS TO A FINDING OF ANY TAXABLE INCOME HAVING ACCRUED TO THE ASSESSEE, THE A.O. SHALL BE AT LIBER TY TO 62 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT BRING THE SAME TO TAX, BEING CONCOMITANT TO THE ASSESSEES EXPLANATION (REFER: AHMEDABAD ELECTRICITY LIMITED VS. CIT [1993] 199 ITR 351 (BOM) (FB)). HE MAY ALSO, AT HIS OPTION, FOR THE PURPOSE OF THE SAID VERIFICATION, SEEK ANY MATERIAL/EVIDENCE FROM THE ASSESSEE TO SATISFY HIMSELF WITH REGARD TO THE TRUTH OF THE EXPLANATION, AND DECIDE THE SAME IN ACCORDANCE WITH LAW, ISSUING DEFINITE FINDINGS OF FACT. WE DECIDE ACCORDINGLY. 82. GD. # 6 CONCERNS AN ADDITION (AT RS. 7,45,000/ - ), AGAIN BASED ON SE IZED MATERIAL, BEING PG. 50 OF ANNEXURE A - 1 (SUPRA) (APB - 6, PG. 1139). THE SAME RELATES TO SOME TRANSACTIONS FOR A TOTAL OF RS.5,50,000/ - WITH ONE, BINU BABU, AND INTEREST, AGAIN FOR THREE SEPARATE AMOUNTS, AGGREGATING TO RS.1,95,000/ - . THE ASSESSEE DENIED THE TRANSACTIONS, STATING THEM TO BE ROUGH NOTINGS, WHICH THE REVENUE DISREGARDS IN VIEW OF THE STATUTORY PRESUMPTION OF SECTION 292C (REFER PARAS 9(II) AND 8 OF ASSESSMENT AND IMPUGNED ORDER RESPECTIVELY). BEFORE US, THE ASSESSEE REITERATES THE SAME BE ING ROUGH NOTINGS, FURTHER ADDING THAT THE INTEREST TRANSACTIONS ARE BY CHEQUE, SO THAT THE SAME COULD NOT BE ADDED. 83. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. APART FROM BEING SAVED BY THE STATUTORY PRESUMPTION OF SECTION 292C (AL SO REFER: SURENDRA M. KHANDHAR V. CIT [2010] 321 ITR 254 (BOM), THE ASSESSEES EXPLANATION IS SELF - CONTRADICTORY STATING THE TRANSACTIONS AS NOT REPRESENTING ACTUAL TRANSACTIONS, BUT ONLY ROUGH NOTINGS, IT QUESTIONS THE ADDITION/S QUA INTEREST TRANSACTIO NS (RS.1.95 LACS) ON THE GROUND THAT THESE ARE BY CHEQUE, IMPLYING THAT THESE ARE ACTUAL TRANSACTIONS OF (RECEIPT OF) INTEREST. COULD IT BE THAT A PART OF THE TRANSACTIONS NOTED ARE ACTUAL, AND THE BALANCE NOT ? FURTHER, THE INTEREST PART, WHICH IS ADMITTED , ITSELF CONFIRMS THE TRANSACTIONS TO BE FINANCIAL TRANSACTIONS, PURSUANT TO LOAN TRANSACTIONS. AGAIN, WHERE BY CHEQUE, AS THE INTEREST AMOUNTS ARE INDICATED TO BE IN THE DOCUMENT RECOVERED THE NARRATION TO THE INTEREST AMOUNTS READING: INT. CHQ, IT IS ONLY OSTENSIBLY SO, AND WOULD 63 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT REQUIRE BEING SHOWN AS ACCOUNTED AND, FURTHER, DISCLOSED AS INCOME. THE MATTER WOULD THEREFORE MERIT BEING ADJUDICATED AFRESH. WE UNDERSTAND THAT ASSESSMENT IS A BEST JUDGMENT ASSESSMENT, SO THAT THE AO IS BOUND TO ACT ONLY ON THE MATERIALS, AS WELL AS EXPLANATION FURNISHED, BEFORE HIM, AND THAT THE ASSESSEE HAD FAILED TO DISCHARGE THE BURDEN OF PROOF ON HIM, ONLY DENYING THE TRANSACTION/S. THE INTEREST OF JUSTICE, HOWEVER, DICTATES OUR DECISION AS TO RESTORATION; THE INTEREST AMOUNT INDICATED TO BE BY CHEQUE/S. AGAIN, IF THE INTEREST IS ACCOUNTED, COULD IT BE THAT THE PRINCIPAL AMOUNT IS NOT BY CHEQUE, THOUGH THE QUESTION OF IT BEING ACCOUNTED/DISCLOSED IS, AGAIN, WIDE OPEN. THE ASSESSEE, WHO IS ACCORDED ONE FINAL OPPORTUNITY T O SUBSTANTIATE HIS CLAIMS, SHALL, NEEDLESS TO ADD, PROVIDE FULL CO - OPERATION/DETAILS, EVEN AS ASSURED BY THE LD. AR DURING HEARING TIME AND AGAIN. THE ENTIRE ISSUE IS OPEN, AND THE AO SHALL DECIDE IN ACCORDANCE WITH LAW, CONSISTENT WITH HIS FACTUAL FINDING S. WE DECIDE ACCORDINGLY. 84. GDS. # 7 & 8 ARE TOWARD AN ADDITION FOR RS.1,05,00,000 ON ACCOUNT OF LOOSE PAPER SEIZED FROM RESIDENCE OF SYED AHMED ABBAS NAQVI. THE SAME CORRESPONDS WITH GDS. # 6 & 7 RESPECTIVELY FOR A.Y. 2006 - 07, DECIDED BY U S PER PARAS 6 0 - 63 OF THIS ORDER. WE ARE CONSCIOUS, WE MAY ADD, THAT THESE ARE SECTION 144 PROCEEDINGS. HOWEVER, THE INTEREST OF JUSTICE AND JUDICIAL PROPRIETARY WOULD PREVAIL IN ADOPTING A CONSISTENT APPROACH. WE DECIDE ACCORDINGLY. 85.1 GROUNDS 9 TO 14 CONCERN COMMON ISSUES, AND ARE ACCORDINGLY TAKEN UP TOGETHER. WE PROCEED BY TABULATING THE BASIC DETAILS WITH REGARD THERETO, AS UNDER: GROUND EXPENDITURE BASED ON AMOUNT REMARKS 9 TRAVEL SEIZED MATERIAL 2,15,000 10 TRAVEL AND OTHER EXPENSES SEIZED MATERIAL 11 TRAVEL SEIZED MATERIAL 3,52,486 12 TRAVEL SEIZED MATERIAL 7,62,575 13 TRAVEL SEIZED MATERIAL 75,395 14 TRAVEL SEIZED MATERIAL 65,400 64 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT SEIZED MATERIAL IN THE FORM OF NOTINGS, INVOICES, BY M/S. TRAVEL HUB P. LTD., AIRLINES, STATEMENTS OF ACCOUNT , ETC. WERE FOUND (APB - 6/PGS. 1141 - 1150). THE SAME WERE ADDED IN THE ABSENCE OF ANY EXPLANATION BY THE ASSESSEE. THE TRANSACTIONS, PROTECTED BY SECTION 292C, ARE EVEN OTHERWISE ADMITTED. THE ASSESSEES CASE IS ONLY TOWARD RECONCILIATION IN - AS - MUCH AS THE S AME EXPENDITURE HAS BEEN INCLUDED TWICE, I.E., BASED ON INVOICE/S RAISED AND/OR PAYMENT AND/OR STATEMENT OF ACCOUNT (INCLUDING THE AMOUNT SHOWN AS BALANCE OUTSTANDING OR CARRY FORWARD); WHICH WE CONSIDER TO BE A DISTINCT POSSIBILITY, PARTICULARLY IN THE AB SENCE OF ANY EXPLANATION/ CORRELATION IN THE ASSESSMENT PROCEEDINGS. NEEDLESS TO ADD, THE ASSESSEE SHALL REGARD IT AS ONE, FINAL OPPORTUNITY IN THE MATTER, ALLOWED IN THE INTEREST OF JUSTICE. WE DECIDE ACCORDINGLY. REFERENCE IS ALSO MADE TO GROUND 9 FOR A. Y. 2006 - 07 (DECIDED ALONG WITH GDS. 8, 10 AND 11 FOR TH AT YEAR, VIDE PARA 64 OF THIS ORDER). HERE IT MAY BE PERTINENT TO MENTION THAT THOUGH THE AO STATES OF MAKING THE ADDITION FOR RS. 3,52,486/ - , HE ACTUALLY INCLUDES ONLY RS.1,73,950/ - (A COMPONENT OF TH E FORMER AMOUNT) IN ASSESSMENT (REFER PARA 20(5) OF THE ASSESSMENT ORDER). IN - AS - MUCH THE ADDITION IS TO BE MADE AT THE CORRECT AMOUNT ONLY, THE AO, SUBJECT TO HEARING THE ASSESSEE, SHALL BE AT LIBERTY TO BRING THE CORRECT AMOUNT TO TAX. THIS DECIDES THE G ROUNDS TABULATED ABOVE, SAVE GD. # 10. 85.2 GROUND 10 IS IN RESPECT OF UNEXPLAINED EXPENSES ON VIZ. TRAVEL, MOBILE, AMC, PERSONAL EXPENDITURE (AS ON MEDICINE), ETC. (APB - 6, PG. 1140). THE STATEMENT IS IN THE HANDWRITING OF, AS IT APPEARS, THE ASSESSEE. N O EXPLANATION STOOD FURNISHED, EXCEPT FOR STATING IT TO BE THROUGH PERSONAL WITHDRAWALS, WITHOUT OF COURSE SHOWING IT TO BE SO. SO, HOWEVER, WE OBSERVE THAT THE EXPENDITURE INCLUDES PAYMENT FOR CREDIT CARDS (AMERICAN EXPRESS - RS.25,395/ - ), AS WELL AS ON T ELEPHONE, PAID PER CHEQUE/S. SUBJECT TO THE ASSESSEE SO EXHIBITING, I.E., OF THE PAYMENT/S BEING ACCOUNTED FOR, WE CONFIRM THE ADDITION. WE DECIDE ACCORDINGLY . 65 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT 86. GD. # 15 IS QUA AN ADDITION FOR RS.30,000/ - , BASED ON SEIZED MATERIAL (APB - 6/PGS. 1151 1 153) ON ACCOUNT OF PAYMENTS TO ONE, BABU CHAKRAVARTY, ON 2.05.2006 (RS.10,000/ - ) AND ON 05.7.2006 (RS.10,000), DULY RECEIPTED. PAGE 1153 IS A STATEMENT DATED 21.06.2006 BY HIM, AGAIN DULY SIGNED, OF ONLY RS.10,000/ - BEING OUTSTANDING. THE ASSESSEES CLAIM OF THE AMOUNT BEING ACCOUNTED (THROUGH PERSONAL WITHDRAWALS) STANDS RIGHTLY REJECTED BY THE REVENUE, BEING UNSUBSTANTIATED. THE CLAIM OF ONLY RS.20,000/ - HAVING BEEN PAID, THOUGH, MERITS ACCEPTANCE, AND NO SEPARATE ADDITION IS CALLED FOR QUA PG. 1153. WE D ECIDE ACCORDINGLY, RESTRICTING THE ADDITION TO RS.20,000, AND THE ASSESSEE GETS PART RELIEF. 87. GROUND 16 IS IN RESPECT OF TELEPHONE EXPENDITURE (MOBILE) FOR RS.3,40,887/ - , CORRESPONDING WITH GROUND 13 FOR A.Y. 2006 - 07 (APB - 6, PGS. 1154 1206). THE SA ME STANDS DECIDED VIDE PARA S 65 - 66 OF THIS ORDER ; THE RESPECTIVE CASES OF BOTH THE PARTIES BEING THE SAME . WE DECIDE ACCORDINGLY. 88. GROUND 17 IS TOWARD AN ADDITION FOR RS.4,20,000/ - ON ACCOUNT OF INTEREST INCOME. THE SAME STANDS DECIDED PER PARA S 10 - 11 OF THIS ORDER, DECIDING GROUND 8 FOR A.Y. 2001 - 02 ; THE RESPECTIVE CASES OF BOTH THE PARTIES BEING THE SAME. 89. GROUND 18 IS TOWARD ADDITION QUA UNEXPLAINED CASH - IN - HAND (RS.13,53,000/ - ), AND STANDS DISPOSED VIDE PARA S 48 - 49 OF THIS ORDER, DECIDING GD. 8 FOR A.Y. 2005 - 06; THE RESPECTIVE CASES OF BOTH THE PARTIES BEING THE SAME. 90. GROUND 19 IS IN RESPECT OF AN ADDITION FOR RS.50,000/ - , BASED ON SEIZED MATERIAL (APB - 6/PG. 1207) ON ACCOUNT OF CASH WITHDRAWAL (FROM RMC), TOWARD INCURRING EXPENDITURE, VIZ . ON MOBILE PHONE, SALARY (TO FIVE PERSONS), ETC. THE ASSESSEES STAND IS OF THE SAME BEING WITHDRAWN FROM THE BOOKS OF ROBERTS, MCLEAN & CO. LTD. (RMC) AND, TWO, THAT THE EXPENSES STAND SEPARATELY ADDED. WHERE THE CASH IS NOT SHOWN AS WITHDRAWN, I.E., WHI CH IS THE STATED SOURCE OF THE EXPENDITURE, THE SOURCE OF THE 66 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT ADMITTED EXPENDITURE REMAINS UNEXPLAINED. THE SECOND ARGUMENT, I.E., OF DOUBLE ADDITION, IS TAKEN BEFORE US FOR THE FIRST TIME. FURTHER, THERE ARE OTHER ASPECTS OF THE MATTER AS WELL. THE NAMES OF THE FIVE PERSONS, TO WHOM SALARY IS PAID (FOR THE MONTH OF JUNE, 2006) ARE CLEARLY SPELT OUT. ARE THEY THE ASSESSEES PERSONAL STAFF, OR OF ANY OF HIS COMPANIES? IF THEY ARE OF RMC OR SOME OTHER COMPANY, HOW, WE WONDER, COULD THE SAME, I.E., THE SAID EX PENDITURE, BE ADDED IN THE ASSESSEES HANDS? AGAIN, IF THE COMPANIES ARE DEFUNCT, WITH NO BUSINESS, WHAT, AND FOR WHOM, THE SERVICES WERE BEING RENDERED BY THEM. NO SUCH INQUIRY STANDS MADE, THE QUESTION IN WHICH RESPECT MAY ARISE ONLY WHERE NOT ACCOUNTED FOR IN THE BOOKS OF THE COMPANY/S, IN WHICH CASE THE SAME COULD BE CONSIDERED AS PAID BY THE ASSESSEE IN HIS CAPACITY AS THE PRINCIPAL PERSON OF THE EMPLOYER - COMPANY. THE ISSUE, WE MAY CLARIFY, IS NOT WITH REGARD TO THE EMPLOYER, DE FACTO OR DE JURE , ON WH OSE BEHALF THE PAYMENT/S MAY HAVE BEEN MADE, BUT THE SOURCE OF PAYMENT THE PROVIDER OF FUNDS THEREFOR. THE MATTER ACCORDINGLY IS RESTORED BACK TO THE FILE OF THE AO FOR ADDRESSING THIS ASPECT, ALLOWING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD , AND DECIDING ON THE BASIS OF EXPLANATION FURNISHED, ISSUING DEFINITE FINDINGS OF FACT. WE DECIDE ACCORDINGLY. 91. GDS. # 20 TO 22 ARE IN RESPECT OF THREE SEPARATE ADDITIONS, BASED ON SEIZED MATERIAL (APB 6/PG. 1208 1211), AS UNDER, WHICH THE ASSESSEE CL AIMS TO BE DUMB DOCUMENTS: GROUND AMOUNT (IN RS.) ANNEXURE CIL - 1 (PGS.) APB - 6 (PGS.) 20 10,07,426 11 - 12 1208 21 61,99,965 14 1210 22 1,99,94,946 16 1211 THE ASSESSEES ONLY CASE QUA THE SAID DOCUMENTS, FOUND FROM THE PREMISES OF CHANDRIKA INVESTMENTS PRIVATE LIMITED, 27B, CAMAC STREET, KOLKATA DURING SEARCH ON 05.1.2007, IS THAT THESE ARE ROUGH NOTINGS, WHICH DID NOT FIND FAVOUR WITH THE REVENUE IN THE ABSENCE OF ANY EXPLANATION OR EVIDENCE BEING LED BY THE ASSESSEE. 67 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT 92. WE HAVE EXAMINED THE RELEVANT DOCUMENTS. THE HANDWRITING IS THE SAME AS THAT APPEARS AT PAGE 1207 (GROUND # 19), I.E., TOWARD WITHDRAWAL OF CASH (RS.50,000), AND THE CASH EXPENSES DISCHARGED THERE - AGAINST. THERE IS SUFFICIENT INDICA OF THE FIGURES STATED IN THESE DOCUMENTS AS REPRESEN TING AMOUNT IN RUPEES, WHICH ARE FURTHER TABULATED UNDER VARIOUS HEADS, VIZ. CASH, SUSPENSE, EXPENSES, ETC., AND THEN SUMMED UP. THE AO HAS ADDED ALL SUCH TOTALS APPEARING AT ALL THE THREE PAGES. HIS TOTALS ARE CORRECT, EXCEPT FOR THAT AT PAGE 14 (OF ANNEX URE CIL - 1) BEING AT RS.68,28,506/ - (AS AGAINST RS.61,99,965/ - ). ALSO, THE FIGURE NOTED AS 375853 IS ACTUALLY 3175853, SO THAT THE RELEVANT TOTAL WOULD WORK TO 96,28,506 (AS AGAINST THE ADOPTED FIGURE OF RS.61,99,965/ - ). CONTINUING FURTHER, THE DOCU MENTS ARE NOT DUMB, AS STATED BY THE ASSESSEE. AGAINST EACH OF THE SEVERAL AMOUNTS UNDER EACH HEAD, IS A SHORT NARRATION, VIZ. C & D, SURAJ, BKC, GUPTAJI. THEN, SOME AMOUNTS HAVE BEEN WRITTEN MORE THAN ONCE AND, THEREFORE, HAVE BEEN INCLUDED TWICE (OR THRICE). FOR EXAMPLE, 25,00,000 AND 3500 APPEAR TWICE (AT PAGE 1210), UNDER HEADS TOTALLING TO 31,75,853 AND 32,34,086. SURELY, THE EXERCISE HAS BEEN CARRIED OUT WITH SOME PURPOSE AND TO SOME EFFECT, THE AMOUNTS HAVE TO BE CORRELATED WITH THE A SSESSEE, OR ANY OF HIS BUSINESSES, INCOME FROM WHICH IS ASSESSABLE IN HIS HANDS. THE MATTER, ACCORDINGLY, IS RESTORED TO THE FILE OF THE AO FOR FRESH DETERMINATION AFTER HEARING THE ASSESSEE. WE DECIDE ACCORDINGLY. 93. WE MAY CONSIDER GROUNDS # 23 AND 24, BEING RELATED, TOGETHER, BEGINNING BY TABULATING THE RELEVANT DATA, AS UNDER: GROUND AMOUNT (IN RS.) ANNEXURE CIL (PG.) APB (PG.) 23 26,67,914 17 - 19 1212 - 1213 24 4,57,048 21 - THE ASSESSEE EXPLAINS THE AMOUNT, WHICH IS A SUBJECT MATTER OF GROUND 23, AS WORKING OF THE GRATUITY OF STAFF, FOR MAKING PAYMENTS ON DIFFERENT DATES, WHICH DOES NOT, HOWEVER, BEAR REFERENCE TO ANY YEAR. THE SECOND PAGE (# 21) WAS EXPLAINED TO BE, 68 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT AGAIN, MERE ROUGH NOTINGS. THE SAME DID NOT FIND FAVOUR WITH THE REVENUE FOR BEING UNSUBSTANTIATED. 94. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. THE PAGE CORRESPONDS TO PAGE 18 (TOWARD AN ADDITION FOR RS.4,40,080/ - ). THE HANDWRITING ON THESE PAGES IS THE SAME AS THAT QUA THE PRECEDING GROUNDS. GROUND 23 IS TOWARD VARIOUS EXPENSES LISTED AT THREE PAGES (EVEN AS ONE PAGE IS MISSING IN THE ASSESSEES PAPER - BOOK). PAGE 1212 (OF APB - 6) IS TOWARD GRATUITY TO STAFF AND SALARY FOR APRIL. TRUE, THE YEAR IS NOT MENTIONED, BUT THE BASIC QUESTION IS: WITH WHICH COMPANY OR CONC ERN THE ASSESSEE HAVING PROPRIETARY BUSINESS/ES AS WELL, WERE THE SAID PERSONS, I.E., G. S. GUPTA, R. K. LOHIA AND B. K. LOHIA, EMPLOYED? THE EXPENSES ON THEIR SALARY AND GRATUITY WOULD STAND TO BE PAID BY THAT FIRM. THE ASSESSEE HAS NOT STATED THE NAME OF THE COMPANY/CONCERN. IT IS ONLY IN THE EVENT OF THE SAME BEING NOT REFLECTED AS PAID IN THE BOOKS OF THE SAID COMPANY, THAT THE QUESTION OF WHO, IN THAT CASE, PAID THE SAME AND, THUS, OF IT BEING ASCRIBED TO THE ASSESSEE, MAY ARISE. WHY, IT MAY ALSO BE THAT THE PERSON/S, THOUGH ON THE ROLLS OF THESE COMPANIES, WITHOUT BUSINESS, ARE WORKING FOR THE ASSESSEE OR HIS SOME OTHER COMPANY. THE ASSESSEES CONTENTION THAT THE YEAR (PERIOD) IS NOT MENTIONED IS FACTUALLY CORRECT. THAT, HOWEVER, SHOULD NOT POSE AN Y PROBLEM AS THE MONTH OF APRIL WOULD CORRESPOND TO THE TIME PERIOD WHEN THE GRATUITY WAS GIVEN TO THESE PERSONS. BEING WRITTEN ON THE SAME PAGE (# 17 OF ANNEXURE CIL - 1), IMMEDIATELY BELOW THE WORKING OF THE GRATUITY TO THE VERY SAME PERSONS, THE SALARY (F OR THE MONTH OF APRIL) SHOULD BE THAT FOLLOWING THE FINANCIAL YEAR ENDING MARCH, WHICH APPEARS TO BE MARCH, 2005 (THE PERIOD FOR GRATUITY BEING MENTIONED AS 92 TO 05). THIS GETS IN FACT BORNE OUT BY THE GRATUITY AMOUNT (RS.1,93,000/ - ) BEING INCLUDED IN THE SALARY AMOUNT (FOR APRIL), I.E., RS.59,400/ - . THE CORRECT TOTAL FOR THIS PAGE WOULD THUS BE RS.2,52,400/ - , AND NOT RS.4,45,400/ - , AS TAKEN BY THE AO. IN SUM, THE DOCUMENT/S IS NOT A DUMB DOCUMENT/S, REFLECTING ROUGH NOTINGS, BUT WORKING OF ACTUAL EXPEN DITURE/PAYMENT. THE QUESTION OF CONSIDERING IT IN 69 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT THE ASSESSEES HANDS (FOR THE PURPOSE OF ASSESSMENT) - WHICH COULD ALSO BE IN PART, WOULD ARISE ONLY WHERE EXPENDITURE AND/OR TRANSACTION/S IS NOT REFLECTED IN THE REGULAR BOOKS OF ACCOUNT OF THE RELEVANT C OMPANY, I.E., OF THE COMPANY/EMPLOYER IN CASE OF REGULAR STAFF SALARY/GRATUITY. THIS IS AS THE COMPANYS BEING PRIVATE LIMITED COMPANIES, WITH APPARENTLY NO REGULAR BUSINESS, THE ULTIMATE RESPONSIBILITY TO DISCHARGE THE LEGAL OBLIGATIONS WOULD BE ON THE PR OMOTER - DIRECTORS - KT, WHO MAY WELL HAVE DEPLOYED THEM FOR PERSONAL PURPOSES OR FOR SOME OTHER GROUP CONCERN. EVEN IF FINALLY RECORDED IN THE BOOKS OF THE COMPANY WHICH IS LEGALLY LIABLE FOR THE SAME, THE QUESTION (OF FACT) BEFORE US IS AS TO SOURCE OF PA YMENT, I.E., AT THE TIME I T IS MADE. THERE IS IN FACT NO CONTENTION TOWARD THIS AT ANY STAGE . THEN, THERE ARE SOME AMOUNTS WHICH ARE CLEARLY NOTED TO BE FOR/TOWARD KT, THE ASSESSEE (REFER PAGE 19). FINALLY, BOTH THE YEAR/S AS WELL AS THE AMOUNT OF PAYMENT/ S, AS ADOPTED, MAY UNDERGO CHANGE, AS FOR EXAMPLE, WORKING QUA PAGE 17 IS FOUND IN EXCESS BY RS.1,93,000/ - . THE MAT TER , ACCORDINGLY, SHALL WARRANT BEING RESTORED TO THE FILE OF THE AO FOR FRESH ADJUDICATION, WHO SHALL DECIDE IN ACCORDANCE WITH LAW, ISSUING DEFINITE FINDINGS OF FACT UPON HEARING THE ASSESSEE, WHO SHALL ALSO BE SUPPLIED PAGE 21 (OF ANNEXURE C I L - 1), FOR RS. 4, 57,048 / - , STATED BY HIM AS NOT AVAILABLE. WE HAVING - FOR LIKE CONSIDERATIONS, SIMILARLY RESTORED THE MATTER FOR OTHER YEARS ALSO, GUIDE D BY THE INTEREST OF JUSTICE, DO LIKEWISE FOR THE CURRENT YEAR AS WELL. THE AO IN THE SET - ASIDE PROCEEDINGS, WE MAY CLARIFY, WOULD BE AT LIBERTY; RATHER OBLIGED TO BRING THE CORRECT AMOUNT TO TAX IN THE ASSESSEES HANDS, AND FOR THE RIGHT YEAR. WE DECIDE A CCORDINGLY. 95. GROUND # 25 IS TOWARD A DEBIT VOUCHER DATED 02.7.2006 FOR RS.8,50,000/ - ISSUED BY THE ASSESSEE IN FAVOUR OF HAK. THE ASSESSEE EXPLAINED THE SAME AS BEING A LOAN FOR RS.8.50 LACS GIVEN TO HAK VIDE CHEQUE NO. 684624 DATED 02.1.2006 AND, ACCO RDINGLY, REFLECTED IN HIS PERSONAL BALANCE - SHEET AS ON 31.3.2006. WE OBSERVE THAT THOUGH THE AO STATES OF ADDING BACK THE SAID AMOUNT IN THE ABSENCE OF A SATISFACTORY EXPLANATION BY THE ASSESSEE, THE SAME DOES NOT APPEAR IN THE COMPUTATION OF ASSESSABLE IN COME AT 70 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT PARA 20 OF HIS ORDER. THE SAME IS, THUS, A MISTAKE APPARENT FROM RECORD. THE ASSESSEE, ACCORDINGLY, DID NOT APPEAL THIS ADDITION BEFORE THE FIRST APPELLATE AUTHORITY, WHOSE ORDER THUS DOES NOT BEAR ANY REFERENCE THERETO. THE SAID GROUND IS ACCORD INGLY NOT MAINTAINABLE BEFORE US. WE DECIDE ACCORDINGLY. 96. GROUND 26 IS QUA CREDIT CARD EXPENSES, AT RS.20,23,701/ - . THE BRIEF FACTS ARE THAT THE ASSESSEE, ON THE BASIS OF INFORMATION ACCUMULATED FROM VARIOUS CREDIT CARD AGENCIES, WAS FOUND TO HAVE INCU RRED EXPENDITURE QUA DIFFERENT CREDIT CARDS FOR DIFFERENT YEARS, AND WAS ACCORDINGLY QUESTIONED IN ITS RESPECT BY THE AO; THAT FOR THE CURRENT YEAR BEING AS UNDER: SR. NO. NAME OF THE BANK ASSESSMENT YEAR AMOUNT (RS.) 1 AMERICAN EXPRESS 2007 - 08 8,06,065/ - 2 CITY BANK 2007 - 08 8,62,463/ - 3 ICIC BANK 2007 - 08 1,38,428/ - 4 ABN AMRO BANK 2007 - 08 2,16,745/ - THE ASSESSEE STATES OF BEING UNABLE TO RESPOND AS HE HAD NO RECORD OF SUCH EXPENDITURE, WHICH WAS SOUGHT FROM DIFFERENT BANKS, AND WAS AWAITED, EXCEPT F ROM ABN AMRO BANK, WHICH WAS BEING FORWARDED. FURTHER, THE EXPENDITURE WAS IN ANY CASE ACCOUNTED FOR, BEING PAID BY CHEQUE/S. THE AO FOUND THE ASSESSEES REPLY AS SANS ANY DETAILS, WITH EVEN THE STATED INFORMATION, STATED RECEIVED FROM ABN AMRO BANK, BEING NOT FURNISHED. THE SAME ACCORDINGLY CAME TO BE ADDED AS INCOME (BY WAY OF UNEXPLAINED EXPENDITURE), AND CONFIRMED FOR THE SAME REASON, SO THAT, AGGRIEVED, THE ASSESSEE IS IN SECOND APPEAL. 97. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD . THIS BEING THE SEARCH YEAR, THE ASSESSEES STAND OF THE ADDITION AS NOT LIABLE TO BE MADE IN ASSESSMENT IN THE ABSENCE OF SEIZED MATERIAL, IS NOT VALID IN LAW. THOUGH THE ASSESSEE CLAIMS TO HAVE PAID FOR THE CREDIT CARD EXPENSES PER CHEQUE/S, HE HAS NOT SUPPORTED HIS CONTENTION IN ANY MANNER, MAKING NO IMPROVEMENT IN HIS CASE EVEN BEFORE THE FIRST 71 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT APPELLATE AUTHORITY, I.E., EVEN CONSIDERING HIM AS CONSTRAINED FOR TIME BEFORE THE ASSESSING AUTHORITY. THE ASSESSEES CLAIM OF THE RELEVANT EXPENDITURE BEING B OOKED AS PERSONAL EXPENSES, THUS, REMAINS NO MORE THAN A BALD PLEA. HIS FURTHER STATEMENT OF HAVING NOT CLAIMED THE SAID EXPENDITURE IN HIS INCOME TAX ACCOUNTS, IS, AGAIN, WITHOUT MERIT IN - AS - MUCH AS THE ASSESSMENT IS NOT BASED THEREON - THE ASSESSEE IN FA CT NOT FILING ANY RETURN FOR THE YEAR. THERE IS AS SUCH NO MATERIAL ON RECORD, EXCEPT FOR THE INFORMATION RECEIVED FROM THE DIFFERENT CREDIT CARD AGENCIES - DULY CONFRONTED TO THE ASSESSEE, WITH REFERENCE TO WHICH THE ADDITION COULD BE EXAMINED FOR BEING C ONSISTENT THERE - WITH. NO DOUBT, IT WAS INCUMBENT ON THE ASSESSEE TO SPECIFY THE RELEVANT BANK ACCOUNTS AND LEAD EVIDENCE IN THE MATTER, YET, AT THE SAME TIME, IN OUR VIEW, THE ASSESSEES CLAIM OF HAVING DISCHARGED THE EXPENDITURE THROUGH BANKING CHANNEL, C OULD BE IN THE VERY LEAST CROSS VERIFIED WITH HIS KNOWN BANK ACCOUNTS. THE SAME COULD BE EASILY ACCESSED. BESIDES SHOWING IF THE ASSESSEE WAS STATING THE TRUTH (OR NOT), THIS WOULD ELIMINATE SCOPE FOR ANY UNJUSTIFIED ADDITION. THE ASSESSEES BALANCE - SHEET AS ON 31.03.2007 (APB - 6/PGS. 1239 1240) SHOWS PERSONAL EXPENSES (OTHER THAN WITHDRAWALS, AT RS. 3 LACS) AT RS.17.07 LACS. THOUGH NOT CLEAR AS TO HOW THE LOSS FOR THE YEAR AS REFLECTED IN THE PROFIT AND LOSS ACCOUNT (RS.9.06 LACS) HAS BEEN ADJUSTED IN THE BALANCE - SHEET, WE, ADMITTING THE SAME AS AN ADDITIONAL EVIDENCE, RESTORE THE MATTER TOWARD EXPLAINING THE SOURCE OF THE IMPUGNED EXPENDITURE AS TO ITS SOURCE. WE MAY FURTHER ADD THAT WHERE THE SAID SOURCE IS ATTRIBUTABLE TO SOME CREDIT/S IN THE ASSESSEES ACCOUNTS, THE AO SHALL BE FULLY COMPETENT TO EXAMINE THE SAID SOURCE, BEING PART OF THE ASSESSEES EXPLANATION, AS WELL. WE DECIDE ACCORDINGLY. 98. GROUND # 27 IS TOWARD AN ADDITION FOR RS.3,19,520/ - IN RESPECT OF UNEXPLAINED TRAVEL EXPENDITURE, BASED ON BOOKING OF JOURNEY TICKETS ON DIFFERENT DATES (INCLUDING OPEN TICKETS), AS FOUND FROM THE INFORMATION GATHERED FROM M/S. TRAVEL HUB PVT. LTD., THE ASSESSEES TRAVEL AGENT, AS UNDER: ( AMOUNT IN RS. ) 72 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT D ATE OF JOURNEY DATE OF BOOKING SECTOR BILL AMOUNT 4.4.2006 1.4.2006 BOM/JRH/BOM 129106 13.6.2006 13.6.2006 CCU/BOM 72854 26.6.2006 24.6.2006 CCU/DEL/CCU 29368 OPEN 6.11.2006 OPEN 63199 VOIDE CHARGE 200 24.5.2005 SWIS VISA 18850 5.10.2005 MEDICAL INS 2900 29.4.2006 MEDICAL INS 1983 18.5.2006 UK VISA 15400 28.7.2006 MEDICAL INS 2300 24.11.2006 SWIS VISA & MED. INS 5110 THE SAME CAME TO BE ADDED AS INCOME BY WAY OF UNEXPLAINED EXPENDITURE, AND CONFIRMED IN APPEAL IN THE ABSENCE OF THE ASSE SSEE EXHIBITING IT TO BE REFLECTED IN HIS ACCOUNTS, AS CLAIMED. SIMILAR ADDITIONS HAVE BEEN MADE FOR THE CURRENT YEAR, BEING SUBJECT MATTER OF GROUNDS 9, 10 - 14, AND WHICH STANDS RESTORED TO THE FILE OF THE AO FOR FRESH DETERMINATION. WE DECIDE LIKE - WISE FO R THIS GROUND AS WELL. THIS SHALL ALSO MEET THE ASSESSEES OBJECTION OF THERE BEING DOUBLE ADDITION/S, I.E., QUA THE SAME EXPENDITURE. THE ONUS THOUGH, WE MAY CLARIFY, IS STRICTLY ON THE ASSESSEE, AND SET ASIDE IS ONLY TOWARD THE LIMITED PURPOSE OF EXPLAIN ING THE SOURCE OF THE PAYMENT OF THE ADMITTED EXPENDITURE. WE DECIDE ACCORDINGLY. 99. GROUND # 28 IS IN RESPECT OF ADDITION FOR RS.5,41,000/ - IN RESPECT OF CASH FOUND FROM THE ASSESSEES KOLKATA RESIDENCE AT THE TIME OF SEARCH ON 5.1.2007. AS THE ASSESSEE DID NOT FURNISH ANY EVIDENCE IN SUPPORT OF HIS CLAIM OF CASH BEING ACCOUNTED, THE SAME CAME TO BE ADDED AND CONFIRMED AS INCOME. AGGRIEVED, THE ASSESSEE IS IN SECOND APPEAL. BEFORE US, THE ASSESSEE STATES OF HOLDING SUFFICIENT CASH BALANCE IN HAND, AS EVI DENT FROM THE BALANCE - SHEETS FOR THE SIX YEARS, I.E., A.YS. 2001 - 02 TO 2006 - 07. 73 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT 100. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. TRUE, THE ASSESSEES BALANCE - SHEETS AS AT 31.3.2001 TO 31.3.2006 (EXCEPT 31.3.2004, WHICH IS NOT ON RECORD ), REFLECT CASH BALANCES IN LAKHS OF RUPEES, THE MINIMUM BEING AT RS.4.84 LACS AS AT 31.3.2005. THE DATA IS ONLY INDICATIVE IN - AS - MUCH AS SUFFICIENT CASH BALANCE AT AN EARLIER POINT OF TIME DOES NOT NECESSARILY IMPLY OR TRANSLATES INTO AN ADEQUATE (CASH) B ALANCE AT A GIVEN, LATER POINT OF TIME. THAT APART, THE SEARCH YIELDED A HOST OF INCRIMINATING MATERIALS IN THE FORM OF RENOVATION (OF HOUSE PROPERTY), TRAVEL, HEALTHCARE, MOBILE/TELEPHONE EXPENSES, ETC. WHICH BEING APPARENTLY UNEXPLAINED/UNACCOUNTED, HAVE BEEN EITHER CONFIRMED OR RESTORED BACK TO THE FILE OF THE AO TO ALLOW THE ASSESSEE AN OPPORTUNITY TO EXPLAIN THE SOURCE WITH REFERENCE TO VERIFIABLE DOCUMENTS/SOURCES. WHAT, THEN, IS THE VALUE OR THE CREDIBILITY OF THE CASH - IN - HAND AS PER THE ACCOUNTS ? FU RTHER, EVEN IF A PART OF THE EXPENDITURE IS EXPLAINED WITH REFERENCE TO THE CASH AVAILABLE AT THE RELEVANT TIME, BEING ANTERIOR TO 05.1.2007, THE SOURCE WOULD DIRECTLY IMPACT THE CASH AVAILABLE AS ON THAT DATE, I.E., 05.1.2007. THE ASSESSEE, DESPITE AMPLE OPPORTUNITIES - THE CASH BEING FOUND AS ON 05.1.2007 ITSELF, FAILED TO ADDUCE ANY EVIDENCE TOWARD THE SAME BEING ACCOUNTED FOR. SO, HOWEVER, CONSIDERING THAT WE HAVE, AS AFORE - STATED, RESTORED THE ADDITION/S TOWARD DIFFERENT EXPENSES, WHICH WOULD HAVE A DI RECT BEARING ON THE AVAILABILITY OF CASH AS ON 05.1.2007, WE CONSIDER IT ONLY PROPER THAT THIS MATTER IS ALSO RESTORED TO THE FILE OF THE AO TO ENABLE PROPER ADJUDICATION, I.E., CONSIDERING ALL THE RELEVANT ASPECTS. THE BURDEN OF PROOF TO ESTABLISH HIS CLA IMS WOULD THOUGH BE ON THE ASSESSEE. WE DECIDE ACCORDINGLY. 101. GROUND # 29 IS TOWARD AN ADDITION FOR RS.86,68,693/ - ON ACCOUNT OF UNEXPLAINED JEWELLERY FOUND FROM THE ASSESSEES SHORT STREET, KOLKATA RESIDENCE DURING SEARCH ON 05.1.2007, AS WELL AS FROM HIS LOCKER (WITH STANDARD CHARTERED BANK, KOLKATA). THE ASSESSEE EXPLAINED THE GOLD AND DIAMOND JEWELLERY, AS WELL AS GOLD AND SILVER UTENSILS FOUND IN SEARCH, AS BEING DISCLOSED TO THE REVENUE PER WEALTH - TAX 74 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT RETURNS OF SELF, HIS WIFE (CT) AND HIS HUF (AS KARTA), ALSO ENCLOSING THE WEALTH - TAX RETURNS FOR A.Y. 1999 - 2000. THE ASSESSEE REITERATED HIS STAND IN FIRST APPEAL, EMPHASI Z ING THAT THEY ARE OLD ASSESSEES, ASSESSED TO WEALTH TAX, DRAWING ATTENTION TO THE RETURNS, AS AFORE - STATED, FOR A.Y.1999 - 2000. A LSO, THAT THE DIFFERENCE BETWEEN THE VALUE OF THE JEWELLERY (AND UTENSILS) SHOWN IN ACCOUNTS, AND THAT ADOPTED FOR ASSESSMENT, IS ON ACCOUNT OF VALUATION, WHICH HAD WITNESSED A MANIFOLD INCREASE IN THE RECENT YEARS - THE MARKET VALUE AS ON THE DATE OF SEAR CH BEING ADOPTED FOR THE PURPOSE OF ASSESSMENT. THE ADDITION BEING CONFIRMED IN APPEAL, THE ASSESSEE IS IN SECOND APPEAL. 102. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. THE TOTAL VALUABLES FOUND DURING SEARCH, VALUED AT THE OBTAINING RATE AS ON THE SEARCH DATE WHICH IS NOT DISPUTED, IS ADMITTEDLY FOR RS.96,46,267/ - . THE AMOUNT REFLECTED IN THE BALANCE - SHEET OF CT (THE ASSESSEES WIFE) BEING AT RS.9,77,574/ - , THE DIFFERENCE CAME TO BE ADDED IN THE ASSESSEES HANDS. WHY SHOULD THE CRED IT BE ALLOWED ONLY IN RESPECT OF THAT REFLECTED IN CTS BOOKS/RETURNS, WHEN THE ASSESSEE STATES IT TO BELONG TO AND DULY DISCLOSED BY THREE PERSONS, INCLUDING HER? THIS REQUIRES TO BE EXPLAINED OR RECONCILED? THE ASSESSEE, AS IT APPEARS, HAS A STRONG PRIMA FACIE CASE, GIVEN THE FACT OF THE THREE PERSONS, TO WHOM THE JEWELLERY AND UTENSILS FOUND IS STATED TO BELONG, BEING REGULAR ASSESSEES TO WEALTH - TAX, AND OF IT BEING REFLECTED IN THEIR ACCOUNTS, FORMING PART OF THEIR INCOME - TAX RETURNS, THOUGH IN OUR VIEW THE SAME OUGHT TO HAVE BEEN RECONCILED IN TERMS OF BOTH QUANTITY AS WELL AS AMOUNT. THE REVENUES STAND DOES NOT APPEAR TENABLE, BEING SANS ANY DEFINITE FINDINGS WITH REFERENCE TO THE ASSESSEES CASE, AS MADE OUT. THE MATTER BEING FACTUALLY INDETERMINATE, WE SET ASIDE THE ASSESSMENT ON THIS COUNT TO THE FILE OF THE AO FOR FRESH ADJUDICATION AFTER HEARING THE ASSESSEE, IN ACCORDANCE WITH LAW AND PER A SPEAKING ORDER. WE MAY ALSO ADD THAT AN ADDITION OF RS.53 LACS AND RS.54 LACS STANDS MADE FOR A.Y. 2006 - 07 (GD. 6) AND 2007 - 08 (GD.7) RESPECTIVELY TOWARD PAYMENT/S TO SOIR JEWELLERS (SJ) AGAINST PURCHASE OF DIAMOND 75 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT JEWELLERY, WHICH HAS SINCE BEEN CONFIRMED BY US (REFER PARA S 60 - 63 AND 84 OF THIS ORDER). IT IS NOT CLEAR AS TO WHAT PART OF THE VALUABLES FOUND CON SIST OF DIAMONDS OR DIAMOND JEWELLERY. AGAIN, IF (AND TO WHAT EXTENT) IS THE SAME OLD JEWELLERY , WHICH (JEWELLERY) ALSO CANNOT BE PUT IN LOCKER PRIOR TO ITS PURCHASE FROM SJ. HOWEVER, WHERE AND TO THE EXTENT THE SAME MATCHES WITH THE JEWELLERY PURCHASED, T HE DETAILS OF WHICH CAN BE SOUGHT FROM SJ, CREDIT IN ITS RESPECT COULD BE ALLOWED, WHICH ASPECT THE A.O. SHALL CONSIDER RATHER, IS OBLIGED TO. WE DECIDE ACCORDINGLY. 103. GD. # 30 IS TOWARD EXPENDITURE ON FOREIGN EXCHANGE (GPB 445.26/INR 39406), STATING T O BE INCURRED FROM THE CREDIT CARD OF CT. HOWEVER, WE OBSERVE THAT BEFORE THE REVENUE AUTHORITIES, THE ASSESSEE STATED THE EXPENDITURE (INCURRED IN OCTOBER, 2006) TO BE BOOKED AS PERSONAL EXPENSES OF THE ASSESSEE. WE REMIT THE MATTER TO THE FILE OF THE AO FOR ALLOWING THE ASSESSEE OPPORTUNITY TO STATE AND PRESENT HIS CASE, CONSIDERING THAT THE EXPENDITURE IS INCURRED THROUGH CREDIT CARD/S, PAYMENT/S QUA WHICH HAVE BEEN ALSO SEPARATELY ADDED. WE DECIDE ACCORDINGLY. 104. GROUND # 3 1 IS MERELY A RECOUNT OF TH E DIFFERENT GROUNDS IN THE FORM OF A PRAYER, WHILE GROUND 32 IS TOWARDS A LEAVE TO ADD OR ALTER ANY GROUND OF APPEAL. THE SAME, THEREFORE, DO NOT ARISE FOR ADJUDICATION. WE DECIDE ACCORDINGLY. 105. IN THE RESULT, ALL THE QUANTUM A PPEAL S ARE PARTLY ALLOW ED . PENALTY APPEALS 106. WE NEXT CONSIDER THE PENALTY APPEALS, I.E., THE LEVY OF PENALTY FOR ALL THE YEARS UNDER REFERENCE U/S. 271(1)(C) OF THE ACT. THE ASSESSEES CASE IN THE QUANTUM PROCEEDINGS, AS SHALL BE APPARENT FROM A READING OF THE TRIBUNALS OR DER ON QUANTUM, HAS BEEN LARGELY ONE OF DENIAL. THE TRIBUNAL, HOWEVER, CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, CONSIDERED IT PROPER TO IN THE MAIN, RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING AUTHORITY, EITHER BY WAY OF AN OPEN S ET ASIDE OR 76 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT FOR A LIMITED PURPOSE, FOR FRESH DETERMINATION AFTER EXAMINING THE ASSESSEES CASE, PER A SPEAKING ORDER. THE ADDITIONS/DISALLOWANCES MADE IN THE FIRST ROUND MAY THUS NOT SURVIVE OR STAND MODIFIED IN WHOLE OR IN PART, IN THE SET ASIDE PROCEEDINGS. IT WOULD, IN OUR VIEW, BE THEREFORE IMPROPER TO PROCEED TO EXAMINE THE CORRECTNESS OF THE LEVY OF PENALTY AT THIS STAGE. THE EXPLANATION /S THAT MAY NOW STAND TO BE OFFERED BY THE ASSESSEE, I.E., EVEN QUA THE ADDITION S /DISALLOWANCE S THAT STAND CONFIRMED BY US OR MAY OBTAIN IN THE SECOND ROUND, WHICH ARE SUPPOSED TO REFLECT THE FACTS, I.E., THE TRUTH OF THE MATTER, MAY BE SUBSTANTIALLY DIFFERENT FROM THAT OBTAINING IN THE FIRST ROUND - THE ASSESSEE HIMSELF ADMITTING TO SEVERAL RELEVANT FACT S. ACCORDINGLY, WE SET ASIDE THE LEVY OF PENALTY FOR ALL THE YEARS UNDER REFERENCE. THE AO , AFTER PASSING FRESH ORDER/S OF ASSESSMENT IN PURSUANCE TO OUR ORDER IN QUANTUM PROCEEDINGS, SHALL QUA EACH ADDITION/DISALLOWANCE MADE/SUSTAINED, CONSIDER THE ISSUE OF LEVY OF PENALTY AFRESH AS PER LAW , SHOW CAUSING THE ASSESSEE IN THE MATTER. N EEDLESS TO ADD , THE ASSESSEE SHALL BE ALLOWED PROPER OPPORTUNITY TO PRESENT H IS CASE BEFORE HIM. WE DECIDE ACCORDINGLY. 107. IN THE RESULT, THE PENALTY APPEALS FOR ALL THE SE VEN YEARS UNDER REFERENCE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON APRIL 25 , 201 6 SD/ - SD/ - ( D. MANMOHAN ) (S ANJAY ARORA) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 25 . 0 4 .201 6 . . ./ ROSHANI , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 77 ITA NO S . 3815 TO 3821/M/10 & 8339 TO 8345/M/11 (A.YS. 2001 - 02 TO 2007 - 08) KASHINATH TAPURIAH VS. DY. CIT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI