Appeal Details
Counselvise Citation
[2018] 121 COUNSELVISE.COM (IT) 6129 (ITAT-JAIPUR)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
5 month(s) 17 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
27-04-2018
Appeal Filed By
Assessee
Order Result
Partly Allowed
Bench Allotted
A
Assessment Year
2015-2016
Appeal Filed On
10-11-2017
Judgement Text
VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKWY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 837/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2015-16 DR. BALBIR SINGH TOMAR, JAIPUR CUKE VS. ACIT, CENTRAL CIRCLE-1, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAMPT7282M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI G. M. MEHTA (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI VARINDAR MEHTA (CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 17/04/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 27/04/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. CIT(A)-4, JAIPUR DATED 03.10.2017 FOR ASSESSMENT YE AR 2015-16 WHEREIN THE FOLLOWING GROUNDS OF APPEAL HAVE BEEN T AKEN: (1) LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN SU STAINING ADDITION OF RS. 12,27,109/- IN THE HANDS OF THE ASS ESSEE ALONE ON ACCOUNT OF EXCESS JEWELLERY, WHEN TOTAL JEWELLERY O F ALL THE FAMILY MEMBERS LIVING JOINTLY WAS MEASURED/WEIGHTED AT ONE PLACE, IGNORING THE FACT THAT JEWELLERY SO FOUND IS FULLY EXPLAINABLE IN THE HANDS OF ALL THE FAMILY MEMBERS. ITA NO. 837 /JP/2017 DR. BALBIR SINGH TOMAR, JAIPUR VS. ACIT, JAIPUR 2 2. IGNORING AND BY MISINTERPRETING THE FINAL FINDIN G OF THE HONBLE SETTLEMENT COMMISSION, ADDL. BENCH-2, NEW D ELHI IN ITS ORDER DATED 30 TH JUNE 2017 IN CASE OF INDIAN MEDICAL TRUST IN RESPECT OF REMITTANCE OF US $3,00,000/- (RS. 1,84,3 5,000/-) THAT THE ASSESSEE HAS NOT REMITTED THE SAID SUM, LD. CIT (A) WAS NOT JUSTIFIED IN SUSTAINING ADDITION OF RS. 1,84,35,000 /- IN THE HANDS OF THE ASSESSEE. 3. LD. CIT(A) HAS ACTED AGAINST THE FACTS OF THE CA SE IN SUSTAINING ESTIMATED ADDITION OF RS. 2,03,405/- FOR FOREIGN TOUR EXPENSES, THOUGH DURING COURSE OF SEARCH, NO INCRIM INATING MATERIAL WAS FOUND FOR INCURRING SUCH EXPENSES AS T HE SAME WERE INCURRED BY THE ASSESSEE OUT OF HIS SUBSTANTIAL AMO UNT OF DRAWINGS. 2. REGARDING GROUND NO. 1, THE FACTS OF CASE ARE TH AT A SEARCH & SEIZURE OPERATION UNDER SECTION 132(1) OF THE ACT W AS CARRIED OUT AT THE VARIOUS PREMISES OF NIMS GROUP AS WELL AS RESIDENTI AL PREMISES OF ITS TRUSTEES. DURING THE COURSE OF SEARCH, AT THE RESID ENTIAL PREMISES OF THE ASSESSEE, BEING ONE OF THE TRUSTEES, SITUATED AT B- 4, GOVIND MARG, ADARSH NAGAR, JAIPUR, FROM THE BEDROOM OF SMT. SHOB HA TOMAR, WIFE OF THE ASSESSEE, DR. BS TOMAR, BEDROOM OF DR. ANURAG T OMAR AND DR. SWATI TOMAR, THE SON AND DAUGHTER-IN-LAW OF THE ASS ESSEE, GOLD WEIGHING 2595.72 GRAMS, DIAMOND WEIGHING 19.3 CTS A ND 714 GRAMS OF SILVER WAS FOUND WHICH WAS VALUED AT RS. 55,80,042/ -. 3. IN HIS STATEMENT RECORDED DURING THE COURSE OF S EARCH U/S 132(4) OF THE ACT, THE ASSESSEE WAS ASKED A SPECIFIC QUEST ION I.E. QUESTION NO. ITA NO. 837 /JP/2017 DR. BALBIR SINGH TOMAR, JAIPUR VS. ACIT, JAIPUR 3 39 TO EXPLAIN THE SOURCE OF THE JEWELLERY SO FOUND AND VALUED AT RS. 55,80,042/-. IN RESPONSE, THE ASSESSEE SUBMITTED TH AT THE JEWELLERY AND THE SILVER SO FOUND BELONG TO HIM, HIS WIFE, SON, D AUGHTER IN LAW AND HIS HUF NAMELY, B.S TOMAR (HUF). IT WAS FURTHER SUBMITT ED THAT THE JEWELLERY AND SILVER SO FOUND HAS BEEN REFLECTED IN THE WEALTH TAX RETURNS AND THE WEALTH TAX HAS BEEN DULY PAID ON SU CH JEWELLERY AND THE SILVER ITEMS. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS AGAIN ASKED TO PROVIDE THE NECESSARY EXPLANATION IN RESPECT OF THE JEWELLERY SO FOUND AT HIS RESIDENTIAL PREMISES DURI NG THE COURSE OF SEARCH. IN RESPONSE, THE ASSESSEE VIDE HIS LETTER D ATED 17.10.2016 SUBMITTED THAT THE TOTAL JEWELLERY FOUND AT HIS RES IDENCE, WEIGHTED AND VALUED BY THE VALUER JOINTLY FOR ALL THE FAMILY MEM BERS AND IT WAS FURTHER SUBMITTED THAT THE JEWELLERY DISCLOSED BY H IM AND HIS OTHER FAMILY MEMBERS ARE AS PER THEIR RESPECTIVE WEALTH T AX RETURNS AND IN CASE OF NON-WEALTH TAX FAMILY MEMBERS, THE JEWELLER Y WEIGHING THE PRESCRIBED GRAMS BE TREATED AS DISCLOSED AS PER THE JUDGMENT OF HONBLE JURISDICTION HIGH COURT REPORTED IN 366 ITR 325. IT WAS ACCORDINGLY SUBMITTED THAT IN RESPECT OF ALL THE FA MILY MEMBERS, THE TOTAL EXPLAINABLE JEWELLERY IS WEIGHING 2,212.04 GR AMS WHOSE VALUE COMES TO MORE THAN RS. 60,00,000 AS AGAINST RS. 55, 80,042/- DETERMINED BY THE SEARCH TEAM AND IT WAS ACCORDINGL Y SUBMITTED THAT NO PART OF THE JEWELLERY COULD BE TREATED AS UNEXPL AINED. 5. THE ASSESSING OFFICER FOUND THE EXPLANATION OF T HE ASSESSEE ACCEPTABLE TO THE EXTENT OF 2,210.04 GRAMS OF GOLD JEWELLERY. HOWEVER, ITA NO. 837 /JP/2017 DR. BALBIR SINGH TOMAR, JAIPUR VS. ACIT, JAIPUR 4 IN RESPECT OF THE BALANCE GOLD JEWELLERY WEIGHING 3 83.68 GRAMS, DIAMOND 19.3 CTS AND SILVER WORTH RS. 14,280/- WAS FOUND UNEXPLAINED AND A SPECIFIC SHOW CAUSE WAS ISSUED TO THE ASSESSE E TO WHICH THE ASSESSEE RESPONDED. IN ITS RESPONSE, THE ASSESSEE H AD FURTHER INCLUDED THE QUANTITY OF JEWELLERY AS PER THE WEALTH TAX RET URNS OF DR. ESHAN SHARMA, DR. SURABHI TOMAR AND MS. PALLAVI TOMAR WHI CH WAS NOT FOUND ACCEPTABLE TO THE ASSESSING OFFICER. IT WAS HELD BY THE ASSESSING OFFICER THAT THESE PEOPLE HAVE SEPARATE RESIDENTIAL PREMISE S AND WHERE THEIR RESPECTIVE JEWELLERY WAS ALSO FOUND. FURTHER, THE A O REFERRED TO THE STATEMENT OF THE ASSESSEE RECORDED DURING THE COURS E OF SEARCH AND IT WAS HELD THAT IN THE SAID STATEMENT, THE ASSESSEE D ID NOT MENTION THAT THE JEWELLERY BELONGING TO DR. ESHAN SHARMA, DR. SU RABHI TOMAR AND MS PALLAVI TOMAR WAS LYING AT HIS PREMISES. ACCORDI NGLY, THE REPLY SO FILED BY THE ASSESSEE WAS NOT FOUND ACCEPTABLE AND 383.68 GRAMS OF GOLD JEWELLERY AND 19.3 CTS DIAMONDS WERE FOUND UNE XPLAINED AND IT WAS HELD BY THE ASSESSING OFFICER THAT SINCE DR. B. S.TOMAR IS THE HEAD OF FAMILY, THE ADDITION ON THIS ACCOUNT SHALL BE MA DE IN HIS HAND FOR THE IMPUGNED ASSESSMENT ORDER. ACCORDINGLY, AN ADDITION OF RS. 10,43,609/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN GOLD JEWELL ERY WEIGHING 383.68 GRAMS AND RS. 183,500/- ON ACCOUNT OF UNEXPLAINED I NVESTMENT IN 19.3 CTS OF DIAMOND TOTALING TO RS. 12,27,108/- WAS MADE AND BROUGHT TO TAX IN THE HANDS OF THE ASSESSEE. 6. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A) AND REITERATED THE SUBMISSIONS MADE BEFORE THE ASSESSING OFFICER. IT WAS FURTHER CONTENDED BEFORE THE LD CIT(A) THAT WHEN THE JEWELLERY WHICH WAS FOUND DURING THE COURS E OF SEARCH WAS ITA NO. 837 /JP/2017 DR. BALBIR SINGH TOMAR, JAIPUR VS. ACIT, JAIPUR 5 OWNED BY ALL THE FAMILY MEMBERS, THEN WHY THE ADDIT ION IS MADE IN THE HANDS OF THE ASSESSEE ALONE AND NOT IN THE HANDS OF THE OTHER FAMILY MEMBERS. IT WAS FURTHER CONTENDED THAT THERE WAS N O LOOSE DIAMONDS WHICH WERE FOUND DURING THE COURSE OF SEARCH AND TH ESE WERE STUDDED DIAMOND AND GOLD JEWELLERY WHICH WAS BELONGING TO F EMALE MEMBERS OF HIS FAMILY. IT WAS FURTHER SUBMITTED THAT THE ASSES SES OWN JEWELLERY AS PER HIS WEALTH TAX RETURN WAS JUST 99.14 GRAMS(NET) WHICH IS GOLD CHAIN, RINGS AND OTHER MINOR ITEMS USED BY MALE MEMBERS IN THE SOCIETY. 7. THE LD. CIT(A) HOWEVER CONFIRMED THE ACTION OF T HE AO AND WHILE DOING SO, OBSERVED THAT THE ASSESSEE HAS GIVEN INCO NSISTENT EXPLANATION BEFORE THE ASSESSING OFFICER AND FURTHER SUCH EXPLA NATION IS AT VARIANCE WITH THE INITIAL STATEMENT RECORDED U/S 132(4) OF T HE ACT. IT WAS HELD BY THE LD. CIT(A) THAT THE AO HAS RIGHTLY GIVEN CREDIT OF JEWELLERY TO THE ASSESSEE AND HIS FAMILY MEMBERS AND HAS TREATED THE REMAINING GOLD JEWELLERY WEIGHING 383.68 GRAMS AND 19.3 CTS DIAMON DS AS UNEXPLAINED. ACCORDINGLY, HE CONFIRMED THE ADDITION OF RS. 12,27,109/- IN THE HANDS OF THE ASSESSEE. 8. NOW, THE ASSESSEE IS IN APPEAL AGAINST THE SAID FINDINGS OF THE LD. CIT(A). THE LD AR REITERATED THE SUBMISSIONS MADE BEFORE THE LOWER AUTHORITIES. IT WAS FURTHER SUBMITTED BY HIM THAT THE APPROVED VALUER HAS ALREADY INCLUDED RS. 1,83,500/-WHICH IS THE VAL UE OF DIAMONDS STUDDED IN JEWELLERY IN HIS OVERALL VALUATION OF RS . 55,65,762/- AGAINST WHICH THE EXPLAINABLE VALUE OF JEWELLERY FOUND WITH ASSESSEE AND HIS FAMILY IS RS. 60,16,749/- THEREFORE NO ADDITION IS CALLED FOR. IT WAS FURTHER SUBMITTED THAT FOR JEWELLERY OWNED BY ASSES SEE AND FAMILY ITA NO. 837 /JP/2017 DR. BALBIR SINGH TOMAR, JAIPUR VS. ACIT, JAIPUR 6 MEMBERS, STRAIGHTWAY 15% REDUCTION WAS MADE FOR IMP URITY WHEREAS THE APPROVED VALUER HAS ALLOWED REDUCTION WHICH WAS LOWER THAN 15% IN MAJORITY OF ITEMS OF JEWELLERY. IT RESULTED IN C ALCULATION OF HIGHER WEIGHT OF JEWELLERY. WITHOUT PREJUDICE, IT WAS FURT HER SUBMITTED THAT THE ADDITION CANNOT BE MADE IN THE HANDS OF THE ASSESSE E ALONE FOR THE REASON THAT TOTAL JEWELLERY OF ALL THE FAMILY MEMBE RS WAS VALUED BY APPROVED VALUER AT ONE PLACE. 9. THE DR IS HEARD WHO HAS VEHEMENTLY ARGUED THE MA TTER AND TOOK US THROUGH THE FINDINGS OF THE LOWER AUTHORITIES AN D SUBMITTED THAT THE ADDITION HAS BEEN RIGHTLY CONFIRMED BY THE LD. CIT( A) AS THE SOURCE OF INVESTMENT IN THE GOLD AND DIAMOND STUDDED JEWELLER Y REMAINED UNEXPLAINED BY THE ASSESSEE. 10. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. FIRSTLY, IT IS NOTED THAT THE JEWELLERY WHICH HAS BEEN FOUND FROM THE BEDROOM OF DR. SHOBHA TOMAR, DR. ANU RAG TOMAR AND DR. SWATI TOMAR BELONGS TO ALL THE FAMILY MEMBERS W HO WERE STAYING JOINTLY WITH THE ASSESSEE AT THE RELEVANT POINT IN TIME. THE SAME IS CONFIRMED BY THE ASSESSEE IN HIS STATEMENT RECORDED U/S 132(4) OF THE ACT WHERE THE ASSESSEE HAS CATEGORICALLY STATED THA T THE JEWELLERY SO FOUND BELONG TO HIM, HIS WIFE, SON, DAUGHTER IN LAW AND B.S.TOMAR (HUF). THEREFORE, WE FIND THAT THE JEWELLERY SO FOU ND WHERE REMAINED UNEXPLAINED, THE ADDITION HAS TO BE MADE EQUALLY IN THE HANDS OF THE EACH OF THE FAMILY MEMBERS TO WHOM THE SAID JEWELLE RY BELONGS. THEREFORE, WE FOUND THAT THE OBSERVATION OF THE ASS ESSING OFFICER THAT SINCE THE ASSESSEE IS THE HEAD OF FAMILY, THE WHOLE OF THE ADDITION SHALL ITA NO. 837 /JP/2017 DR. BALBIR SINGH TOMAR, JAIPUR VS. ACIT, JAIPUR 7 BE MADE IN HIS HAND IS NOT EMERGING FROM THE FACTS ON RECORD AND THEREFORE, THE SAME CANNOT BE ACCEPTED. IN ABSENCE OF ANY SPECIFIC IDENTIFICATION OF THE JEWELLERY BELONGING TO THE AS SESSEE AND TO THE OTHER FAMILY MEMBERS, IT WOULD BE REASONABLE THAT I F THE ADDITION HAS TO BE MADE, IT SHOULD BE MADE EQUALLY IN HANDS OF ALL THE FAMILY MEMBERS STAYING WITH HIM AT THE RELEVANT POINT IN TIME AND THE ASSESSEES HUF. 11. NOW, COMING TO THE EXPLANATION AND THE CONTENTI ONS SO RAISED BY THE LD. AR. FIRSTLY, THE CONTENTION REGARDING THE O VERALL VALUATION OF THE EXPLAINABLE JEWELLERY AMOUNTING TO RS 60,16,749/- B EING HIGHER THAN THE VALUE OF RS 55,65,762 AS DETERMINED BY THE APPR OVED VALUER IS NOT FOUND ACCEPTABLE AS THERE IS A CLEAR CUT FINDING BY THE AO THAT JEWELLERY WEIGHING 2595.72 GRAMS WAS FOUND AS AGAINST EXPLAIN ABLE JEWELLERY OF 2212.04 GRAMS. SIMILARLY, THE OTHER CONTENTION RAIS ED BY THE LD. AR REGARDING 15% REDUCTION DONE BY THE ASSEESSEE FOR I MPURITY WHEREAS THE APPROVED VALUER HAS ALLOWED REDUCTION WHICH WAS LOWER THAN 15% IN MAJORITY OF ITEMS OF JEWELLERY AND WHICH HAS RES ULTED IN CALCULATION OF HIGHER WEIGHT OF JEWELLERY. WE FIND THAT THE SAID C ONTENTION WAS NOT RAISED BEFORE THE LOWER AUTHORITIES AND IT HAS BEEN RAISED FOR THE FIRST TIME BEFORE US AND IN ABSENCE OF ANY FINDINGS OF TH E LOWER AUTHORITIES, WE DONT DEEM IT APPROPRIATE TO CONSIDER THE SAME. 12. WE THEREFORE CONFIRM THE FINDINGS OF THE AO TO THE EXTENT THAT THE JEWELLERY WORTH RS 55,65,762 REMAINS UNEXPLAINE D. AT THE SAME TIME, AS WE HAVE NOTED ABOVE, THE ADDITION, TOWARDS THE UNEXPLAINED INVESTMENT IN THE JEWELLERY SO FOUND DURING THE COU RSE OF SEARCH, SHOULD BE MADE EQUALLY IN HANDS OF ALL THE FAMILY MEMBERS STAYING WITH HIM AT ITA NO. 837 /JP/2017 DR. BALBIR SINGH TOMAR, JAIPUR VS. ACIT, JAIPUR 8 THE RELEVANT POINT IN TIME. THE PROPORTIONATE ADDIT ION IN THE HANDS OF THE ASSESSEE COMES TO RS 245,422 (1/5 OF RS. 12,27, 109/-). THE BALANCE ADDITION OF RS 981,687 IS THEREFORE DIRECTE D TO BE DELETED. IN THE RESULT, THE GROUND OF APPEAL IS PARTLY ALLOWED. 13. REGARDING GROUND NO. 2, THE FACTS OF THE CASE A RE THAT THE ASSESSING OFFICER OBSERVED THAT CERTAIN DISCREET EN QUIRIES DURING PRE- SEARCH INVESTIGATION HAD REVEALED THAT THE TOMAR FA MILY IS MAKING A LOT OF INVESTMENT IN COUNTRIES OUTSIDE INDIA, PARTICULA RLY IN MADAGASCAR AND MOZAMBIQUE. DURING THE COURSE OF SEARCH PROCEEDINGS AT HIS RESIDENCE, THE ASSESSEES STATEMENT WAS RECORDED U/S 132(4) AN D CERTAIN SPECIFIC QUESTIONS WERE RAISED REGARDING FOREIGN INVESTMENT AND WHICH HAVE BEEN REPRODUCED IN THE ASSESSMENT ORDER AT PAGES 10 , 11 AND 12. AS PER THE ASSESSING OFFICER, RESPONSES SO GIVEN BY TH E ASSESSEE TO THE VARIOUS QUESTIONS SO PUT TO HIM SHOWS THAT THE ASSE SSEE WAS CONSTANTLY TRYING TO AVOID THE QUESTIONS REGARDING FOREIGN INV ESTMENT AND HE WAS CONSTANTLY DENYING THAT NO INVESTMENT HAS BEEN MADE . THEREAFTER, THE ASSESSING OFFICER REFERRED TO THE SEIZED MATERIAL W HICH REVEALED THAT SHRI TOMAR HAS MADE INVESTMENTS OF USD 3,00,000 DUR ING THE FY 2014- 15 FOR SETTING UP OF BUSINESS OF GOLD MINES, INFRAS TRUCTURE, MEDICAL HOSPITAL AND COLLEGE ETC. IN THE ABOVE STATED AFRIC AN COUNTRIES. AS PER THE PAGE NO. 129-130 AND 151-155 OF ANNEXURE A-27 S EIZED FROM RESIDENCE OF THE ASSESSEE, IT IS EVIDENT THAT MR. B ITTHAL MAHESHWARI HAS MADE A PAYMENT OF USD 1,00,000 FROM HSBC BANK ACCOU NT IN HONG KONG ON 09.05.2014. THEREAFTER, THE AO OBSERVED THA T MR. BITTHAL MAHESHWARI AFTER SENDING THE PAYMENT HAS E-MAILED T HE RECEIPT TO SHRI B.S. TOMAR FOR SENDING THE PAYMENT RECEIPT OF USD 1 ,00,000 ON ITA NO. 837 /JP/2017 DR. BALBIR SINGH TOMAR, JAIPUR VS. ACIT, JAIPUR 9 09.05.2014. THE AO FURTHER OBSERVED THAT MR BITTHAL MAHESHWARI IS NOT AN INDIAN CITIZEN AND IS BELIEVED TO LIVE IN GERMAN Y SINCE MANY YEARS. THE AO FURTHER OBSERVED THAT THE STATEMENT OF MR. B ITTHAL MAHESHWARIS REAL BROTHER MR. GOVERDHAN MAHESHWARI, WHO LIVES IN JAIPUR AND WHO ALSO ESCORTED MR. B. S. TOMAR AND HIS WIFE TO AFRIC A WAS RECORDED U/S 131 OF THE INCOME TAX ACT. MR. GOVERDHAN MAHESHWARI SUBMITTED THAT HE WILL ASK ABOUT THE ABOVE TRANSACTIONS FROM HIS B ROTHER, HOWEVER, TILL DATE, NO DETAILS HAVE BEEN FURNISHED BY HIM. THE AO ACCORDINGLY COMES TO A CONCLUSION THAT IT IS CLEAR THAT THE HSBC BANK ACCOUNT IN HONG KONG FROM WHICH THE TRANSFER OF USD 1,00,000/- TOOK PLAC E, AND THE RECEIPT OF WHICH WAS SENT BY MR. BITTHAL MAHESHWARI, WAS MA DE ON BEHALF OF DR. B.S.TOMAR AS ALL THE EMAILS HAVE BEEN ADDRESSED TO DR. B. S. TOMAR AND NOT MR. BITTHAL MAHESHWARI. IT WAS ACCORDINGLY HELD BY THE AO THAT IT WAS ON BEHALF OF DR. B. S. TOMAR THAT MONEY WAS TRANSFERRED FROM THE HSBC BANK ACCOUNT TO THE DUBAI BANK ACCOUNT BY MR. BITTHAL MAHESHWARI OR HIS RELATIVE/ASSOCIATE WHO HAD A BANK ACCOUNT IN HSBC HONG KONG. 14. FURTHER, AO REFERRED TO PAGE NO. 180-182 OF THE SAME ANNEXURE I.E. ANNEXURE 27 WHICH SHOWS TRANSFER OF USD 1,00,0 00/- ON OR AFTER 26.09.2014 TO M/S GEDENA- GESTA DE DESENVOLVIMENTO DE NAMPULA, SA HAVING ADDRESS- RUA BEATO JOAO DE BRITO, N 37 1 MAP UTO MOCAMBIQUE. THE AO FURTHER REFERRED TO PAGE NO. 182 WHICH SHOWS THAT ANOTHER TRANSFER OF USD 1,00,000/- IN A BANK ACCOUNT ON OR AFTER 16.07.2014. 15. IN LIGHT OF ABOVE SEIZED MATERIAL, THE AO OBSER VED THAT USD 3,00,000/- HAVE BEEN TRANSFERRED BY DR. B.S.TOMAR T O FOREIGN BANK ITA NO. 837 /JP/2017 DR. BALBIR SINGH TOMAR, JAIPUR VS. ACIT, JAIPUR 10 ACCOUNTS AND NO EVIDENCE WAS FOUND DURING THE COURS E OF SEARCH THAT THIS AMOUNT WAS TRANSFERRED FROM DISCLOSED BANK ACC OUNTS OF DR. B. S. TOMAR OR IMT. THE AO FURTHER OBSERVED THAT NO EVIDE NCE REGARDING THE GENUINENESS OF THE ABOVE TRANSACTIONS WAS SUBMITTED DURING THE COURSE OF POST-SEARCH PROCEEDINGS. THUS, RS. 1,84,35,000/- EQUIVALENT TO USD 3,00,000/- CONVERTED AT THE EXCHANGE RATE OF RS. 61 .45 PER US DOLLAR WAS DETERMINED UNDISCLOSED INCOME OF DR. B. S. TOMA R OR M/S IMT, FROM UNDISCLOSED SOURCES. 16. THEREAFTER, A DETAILED SHOW CAUSE NOTICE MENTIO NING THE ABOVE FACTS WAS ISSUED TO THE ASSESSEE ON 01.12.2016. IN REPLY TO THE SHOW CAUSE NOTICE, THE ASSESSEE VIDE ITS LETTER DATED 08 .12.2016 SUBMITTED AS UNDER:- 'REMITTANCE OF FOREIGN CURRENCY: THIS ISSUE HAS ALR EADY BEEN DISCUSSED IN DETAILS IN APPLICANT'S COMMENTS ON COM MISSIONER'S REPORT UNDER RULE 9 OF SETTLEMENT COMMISSION PROCEDURAL RU LES, IN CASE OF M/S. INDIAN MEDICAL TRUST WHERE LD. PR. CIT (C), JA IPUR HAD RAISED THE SAME ISSUE IN REPORT UNDER RULE 9 TO SETTLEMENT COM MISSION PROCEDURAL RULES, 1997. THE SAME IS REPEATED HEREUN DER: 6.12.4 FOREIGN INVESTMENT: ONE BITHAL MAHESHWAR I, A JEWELLER AND A NON-RESIDENT (FOREIGN CITIZEN) IS CL OSE FRIEND OF DR. B.S. TOMAR, WHO ACCOMPANIED DR. TOMAR TO MOZAMBIQUE AND OTHER COUNTRIES. MR. MAHESHWARI, BEING A JEWELLER, WAS IN TERESTED IN PURCHASING OR INVESTING IN GOLD OR OTHER MINES IN T HOSE COUNTRIES AND THEREFORE, HE HAD GIVEN REFERENCE OF DR. B.S.TO MAR FOR THOSE DEALINGS. BY TAKING ADVANTAGE OF ACQUAINTANCE OF DR . TOMAR'S WITH HEADS OF MOZAMBIQUE AND OTHER COUNTRIES, HE HAD REM ITTED ITA NO. 837 /JP/2017 DR. BALBIR SINGH TOMAR, JAIPUR VS. ACIT, JAIPUR 11 US$1,00,000/- IN THOSE COUNTRIES. FOR REMITTANCE, S INCE REFERENCE OF DR. TOMAR WAS WITH THOSE PARTIES, COPY OF THE MAIL WAS ALSO SENT TO DR. TOMAR. OTHERWISE, DR. TOMAR HAS NOTHING TO DO W ITH GOLD AND OTHER MINES IN FOREIGN COUNTRIES AS HE IS FULLY DEV OTED TO THE CAUSE OF EDUCATION AND MEDICAL RELIEF. HAD THE PAYMENT OF US$ 1,00,000/- OR MORE BEEN PAID BY MR. MAHESHARI FROM HIS BANK AC COUNT WITH HSBC BANK ON BEHALF OF DR. TOMAR, EVIDENCE FOR REPA YMENT IN INDIA OR FOREIGN CURRENCY TO MR. MAHESHWARI OF HIS RELATI VES IN INDIA WOULD HAVE BEEN FOUND DURING THE COURSE OF SEARCH WHEREAS NOT A IOTA OF ANY SUCH EVIDENCE OR ENTRY IN DIARY OR OTHER DOCUME NT WAS FOUND. THE ALLEGATION OF THE LD. PR.CIT(C) APPEARS TO BE O N THE BASIS OF HER OWN PRESUMPTIONS, CONJECTURES AND GUESS WORK. SINCE CONJECTURES, GUESS WORK AND POSSIBLE STORIES HAVE NO PLACE IN SE ARCH CASES, THE REQUEST OF THE LD. PR.CIT(C) TO THIS HON'BLE ITSC T O ALLOW THE DEPARTMENT TO MAKE NECESSARY REFERENCE TO FT AND TR DIVISIONS OF CBDT WILL BE MEANINGLESS. WHEN NO REMITTANCE WAS MA DE BY DR. B.S. TOMAR OR BY IMT, ONE CANNOT UNDERSTAND, HOW TH E SOURCES OF SUCH TRANSACTION COULD BE EXPLAINED? HAD THERE BEEN ANY MERIT IN SUCH QUERY, THE INVESTIGATION WING OF THE DEPARTMEN T WAS COMPETENT ENOUGH IN MAKING INVESTIGATION DURING MOR E THAN A YEAR AFTER THE SEARCH'. IN RESPONSE TO QUERY RAISED IN RESPECT OF EXHIBIT A S-27, IN COMMENTS OF IMT UNDER RULE 9A OF 1TSC PROCEDURE RULES, IT WA S SUBMITTED AS UNDER: 'NEITHER ANY REMITTANCE WAS MADE BY TRUSTEES OF IMT OR THEIR RELATIVES NOR DOES ANY ONE HAVE BANK ACCOUNT IN FOR EIGN COUNTRIES. ITA NO. 837 /JP/2017 DR. BALBIR SINGH TOMAR, JAIPUR VS. ACIT, JAIPUR 12 THIS PAYMENT WAS MADE BY ONE SHRI BITHAL MAHESHWARI (FOREIGN CITIZEN) FROM HIS OWN BANK ACCOUNT WHO IS CLOSE FRI END OF DR. TOMAR AND VISITED GULF COUNTRIES WITH DR. B.S.TOMAR. BY T AKING ADVANTAGE OF ACQUAINTANCE OF DR. TOMAR, HE STARTED SOME BUSINESS LINKS. THE PAYMENT OF $1,00,000/- MUST BE MR. MAHESHWARI'S REM ITTANCE IN CONNECTION WITH HIS FOREIGN TRADE, IN SOME CASES, C OPY OF MAIL WAS ALSO SENT TO DR. TOMAR IN RESPONSE TO QUERY FOR PAGES 151 TO 155 OF EXHIBI T AS-27, IN COMMENTS OF IMT UNDER RULE 9A OF ITSC PROCEDURE RUL ES, IT WAS SUBMITTED AS UNDER: 'NO PAYMENT WAS MADE BY IMT OR TOMARS BUT BY MR. BI TTHAL MAHESWARI WHO MUST HAVE INVESTED IN GOLD MINES, TAK ING ADVANTAGE OF DR. TOMAR'S RELATIONS WITH FOREIGN PERSONAL AND THE REFORE, THE SAME WAS SENT TO DR. TOMAR FOR INFORMATION TO PERSUADE M R. MAHESHWARI. IT IS ALSO REQUESTED THAT BEFORE DRAWING ANY ADVERS E INFERENCE OR BEFORE MAKING UNJUSTIFIED ADDITIONS IN THE HANDS OF THE ASSESSEE IN RESPECT OF REMITTANCE OF US$ 3,00,000/- BY AND FROM THE BANK ACCOUNT OF SHRI BITTHAL MAHESHWARI WHO HAD ALS O ISSUE RECEIPT FOR THE REMITTANCE FROM HIS OWN BANK ACCOUNT, YOU A RE REQUESTED TO GET THE CHARGES VERIFIED FROM THE LOCAL BRANCH OF H DFC BANK, SP MARG, JAIPUR. FROM THE BANK ACCOUNT, FULL FACTS AN D FIGURES WILL BE KNOWN TO THE DEPARTMENT. EVEN THE RECIPIENT OR THE BANK WHERE THE MONEY WAS TRANSFERRED AS PER ACCOUNT NUMBER GIVEN I N NOTICE COULD BE ENQUIRED BY THE DEPARTMENT BUT IN NO CASE UNJUST IFIED ADDITION ON BASIS OF MERE GUESS WORK COULD BE MADE. ITA NO. 837 /JP/2017 DR. BALBIR SINGH TOMAR, JAIPUR VS. ACIT, JAIPUR 13 OTHERWISE, ON THE BASIS OF COPY OF MAIL MESSAGE GIV ING TRANSACTION REFERENCE NUMBER OR BANK ACCOUNT NUMBER AND OTHER DETAILS OF DUBAI BANK OR DATE OF TRANSACTION WITHOU T PROVING PROOF AND SOURCE OF REMITTANCE OR FINDING ANY INCRIMINATI NG MATERIAL FOR SUCH REMITTANCE BY THE ASSESSEE HIMSELF WILL BE AGA INST THE PRINCIPLES OF NATURAL JUSTICE FOR MAKING UNJUSTIFIE D ADDITION OF SUCH HUGE SUMS. IN ASSESSEE'S CASE, NEITHER ANY UNDISCLO SED BANK ACCOUNT PROVING REMITTANCE IN US$ WAS FOUND DURING COURSE OF SEARCH NOR ANY DOCUMENT, PURCHASE DEED OF THE PROPE RTY PURCHASED OR PROPOSED OR AGREEMENT IN FORM OF ANY ASSET IN FO REIGN COUNTRY WAS FOUND THAT THE ASSESSEE HAD MADE INVESTMENT IN GOLD MINES OR IN OTHERS FOR WHICH REMITTANCE WAS MADE IN FOREIGN CURRENCY BY HIMSELF. WITHOUT FINDING ANY INCRIMINATING MATERIAL JUSTIFYING ANY INVESTMENT BY THE ASSESSEE HIMSELF, NO ADDITION COU LD BE MADE. THERE MUST BE SOME MATERIAL SUBSTANCE EITHER IN FOR M OF DOCUMENTS OR THE LIKE TO ARRIVE AT A GROUND FOR ADDITION OF I NCOME. THE ASSESSEE HAS BEEN REQUESTING TIME AND AGAIN TO DEPARTMENT TO MAKE NECESSARY ENQUIRY FROM BANK FOR THE OWNERSHIP OF THE MONEY SENT IN TERMS OF US$ TO GULF COUNTRIES . EVEN THE RECIPIENT OR THE BANK WHERE THE MONEY WAS TRANSFERR ED AS PER ACCOUNT NUMBER GIVEN IN NOTICE COULD BE ENQUIRED. M OREOVER HAD THE ASSESSEE REMITTED THE MONEY, WHY AND HOW BITTHAL MA HESHWARI COULD BE SAID TO HAVE ISSUED RECEIPT AS AGAINST THE ASSESSEE HIMSELF AS GIVEN IN YOUR SAID NOTICE DATED 1 ST DECEMBER 2016 U/S 142(1) OF IT ACT. ON THE FACTS, NEITHER ANY INCRIMINATING DOCUMENT NO R ANY EVIDENCE WAS FOUND DURING COURSE OF SEARCH FOR THE OWNERSHIP OF US ITA NO. 837 /JP/2017 DR. BALBIR SINGH TOMAR, JAIPUR VS. ACIT, JAIPUR 14 $, REMITTED TO GULF COUNTRIES FROM THE HSBC BANK AC COUNT OF ONE SHRI BITTHAL MAHESHWARI AS BEING SENT BY ASSESSEE, THE AMOUNT IN NO CASE COULD BE CONSIDERED AS ASSESSEE'S UNDISCLOSED INCOME NOR ANY EVIDENCE WAS FOUND DURING COURSE OF SEARCH OR THERE AFTER THAT ASSESSEE HAD MADE PAYMENT OF EQUAL SUM EITHER TO SH RI BITTHAL MAHESHWARI OR TO HIS RELATIVE EQUIVALENT TO INDIAN CURRENCY.' 17. THEREAFTER, THE AO REFERS TO THE COUNTER COMMEN TS OF THE DEPARTMENT IN THE CASE OF M/S INDIAN MEDICAL TRUST BEFORE THE HONBLE ITSC, WHERE ON A SUBSTANTIVE BASIS THE DEPARTMENT H AS CLAIMED THAT THE FOREIGN INVESTMENT OF RS. 1,84,35,000/- IS MADE OUT OF THE UNDISCLOSED INCOME OF M/S INDIAN MEDICAL TRUST. THE AO ACCORDINGLY HELD THAT TO SAFEGUARD THE INTEREST OF REVENUE, A P ROTECTIVE ADDITION OF RS. 1,84,35,000/- IS BEING DONE TO THE TOTAL INCOME OF DR. B. S. TOMAR AS HIS UNDISCLOSED FOREIGN INVESTMENT FOR AY 2015-1 6. 18. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTE R IN APPEAL BEFORE LD. CIT(A) AND SUBMITTED AS UNDER:- 10. DURING THE COURSE OF APPELLATE PROCEEDINGS WRI TTEN SUBMISSIONS WERE MADE, THE MAIN PORTION OF WHICH IS REPRODUCED BELOW:- SHRI BITTHAL MAHESHWARI, A JEWELER AND NRI WHO IS A CLOSE FRIEND OF APPELLANT WHO ACCOMPANIED HIM (APPELLANT) TO GULF C OUNTRIES FOR HIS OWN BUSINESS WORK (MAY BE FOR OBTAINING GOLD MINES IN GULF COUNTRIES). FROM HIS NRE BANK ACCOUNT MR. MAHESHWAR I HAD REMITTED US $ 2,00,000 OR SO TO ONE OF THOSE COUNTRIES FOR H IS BUSINESS WORK. SINCE MR. MAHESHWARI HAD THE REFERENCE TO THE APPEL LANT, COPY OF EMAIL FOR REMITTANCE BY MR. MAHESHWARI WAS ALSO SEN T TO THE ITA NO. 837 /JP/2017 DR. BALBIR SINGH TOMAR, JAIPUR VS. ACIT, JAIPUR 15 APPELLANT. ON THE BASIS OF COPY OF EMAIL, LD. AO PR ESUMED THAT IT WAS PAYMENT MADE BY THE APPELLANT HIMSELF THOUGH NO OTH ER PROOF OF PAYMENT WAS FOUND DURING THE COURSE OF SEARCH. THE FINDING OF THE HON'BLE INCOME TAX SETTLEMENT CO MMISSION ON FOREIGN REMITTANCE SAID TO HAVE BEEN MADE BY THE AP PELLANT IS APPEARING AT PAGE 123 (PARA 13.7.4) WHICH IS REPEAT ED HEREUNDER: 'DURING THE HEARING THE A.R. REQUESTED US TO ALLOW THE DEPARTMENT TO MAKE A REFERENCE TO FT & TR DIVISION OF CBDT TO MAK E ENQUIRIES THROUGH THE COMPETENT AUTHORITY. HOWEVER, AS THE PA YMENTS IN QUESTION HAVE BEEN MADE BY SH. BITTHAL MAHESHWARI A ND NOT BY IMT OR DR. TOMAR NO SUCH PERMISSION NEEDS TO BE GIVEN BY U S. THE DEPARTMENT IS FREE TO TAKE ANY ACTION IN CASE OF SH. BITTHAL M AHESHWARI. HOWEVER, FROM THE CLARIFICATIONS GIVEN AND THE FACTS PLACES BEFORE US IT IS CLEAR THAT THE NAME OF THE APPLICANT TRUST DOES NOT FIGURE ON ANY OF THE PAPERS RELIED UPON BY THE DEPARTMENT AND THE PAYMENTS HAVE BEEN MADE BY A THIRD PARTY OUTSIDE INDIA AND THERE IS NO MATERIAL ON RECORD TO SHOW THAT ANY SUCH FUNDS WERE PROVIDED BY DR. B.S.TOMAR. THER EFORE MERELY ON THE BASIS OF THE FACT THAT SH. MAHESHWARI SENT AN E NDORSEMENT OF PAYMENT BY EMAIL TO DR. B. S. TOMAR, IT IS NOT POSS IBLE TO DERIVE ANY ADVERSE INFERENCE IN THE CASE OF THE APPLICANT TRUS T. THE ISSUE OF FOREIGN REMITTANCE WAS ALREADY EXAMINE D BY THE HON'BLE INCOME TAX SETTLEMENT COMMISSION (ITSC) FRO M THE MATERIAL PLACES BEFORE IT BY THE LD. PR.CIT (C) AND ALSO BY INDIAN MEDICAL TRUST. AFTER CONSIDERING MATERIAL PLACED BY BOTH THE PARTIES, THE HON'BLE ITSC HAS ARRIVED AT THE FOLLOWING FINDI NG (REPEATED FROM ABOVE FINDINGS OF HON'BLE ITSC): ITA NO. 837 /JP/2017 DR. BALBIR SINGH TOMAR, JAIPUR VS. ACIT, JAIPUR 16 'HOWEVER, FROM THE CLARIFICATIONS GIVEN AND THE FAC TS PLACES BEFORE US IT IS CLEAR THAT THE NAME OF THE APPLICANT TRUST DOES NOT FIGURE ON ANY OF THE PAPERS RELIED UPON BY THE DEPARTMENT AND THE PAYMENTS HAVE BEEN MADE BY A THIRD PARTY OUTSIDE IN DIA AND THERE IS NO MATERIAL ON RECORD TO SHOW THAT ANY SUCH FUND S WERE PROVIDED BY DR. B.S. TOMAR'. THEREFORE WHEN THE REMITTANCES WERE FOUND TO HAVE B EEN MADE BY THIRD PARTY (SH. BITTHAL MAHESHWARI - WHO I S NRI) OUTSIDE INDIA AND THERE IS NO MATERIAL ON RECORD TO SUGGEST THAT APPELLANT HAD PROVIDED SUCH FUND, THE ADDITION OF RS. 1,84,35 ,000/- IS TOTALLY UNJUSTIFIED. 19. THE LD. CIT(A) HOWEVER DIDNT AGREE WITH THE AS SESSEES CONTENTIONS AND CONFIRMED THE ADDITION MADE BY THE AO. HIS FINDINGS ARE AS UNDER:- 11. I HAVE SEEN THE ORDER OF AO AND SUBMISSIONS MA DE IN THIS REGARD. I HAVE ALSO GONE THROUGH THE ORDER OF SETTL EMENT COMMISSION AND I FIND THAT ISSUE OF FOREIGN INVESTMENT OF RS. 3 LAKHS USD IS NOT CONSIDERED AND TAXED IN THE HANDS OF IMT. IN FACT A LL THE DISCUSSION OF THIS AMOUNT REVOLVES AROUND NOT BEING PERTAINING TO IMT. THE SETTLEMENT COMMISSION IN NO WAY HAS EXONERATED THE APPELLANT. IN MY VIEW, IN LIGHT OF DETAILED DISCUSSION IN THE ASS ESSMENT ORDER, THE PROTECTIVE ADDITION MADE BY THE AO IS CORRECT. APPE LLANT'S GROUND NO. 3 IS DISMISSED. ITA NO. 837 /JP/2017 DR. BALBIR SINGH TOMAR, JAIPUR VS. ACIT, JAIPUR 17 20. DURING THE COURSE OF HEARING, THE LD. AR REITER ATED THE SUBMISSIONS MADE BEFORE THE LOWER AUTHORITIES AND S UBMITTED AS UNDER:- DURING THE COURSE OF SEARCH, COPY OF E-MAIL MESSAG E WAS FOUND ACKNOWLEDGING RECEIPT OF PAYMENT OF US $1,00,000/-O N 8TH MAY 2014 AND REPETITION OF SAME AMOUNT ON VERY NEXT DAT E ON 9TH MAY 2014 AND AGAIN IN JULY 2014. THE E-MAIL SO FOUND WE RE MISINTERPRETED BY BOTH THE LOWER AUTHORITIES AS REM ITTANCE OF US$3,00,000/- (EQUAL TO RS.1,84,35,000/-) BY THE AS SESSEE HIMSELF THOUGH AT PAGE NO. 129 OF SEIZED DOCUMENT, IN BOLD LETTERS - PAYMENT RECEIPT BITTHAL IS APPEARING. FACTS ARE THA T ON INVITATION OF HEAD OF DIFFERENT COUNTRIES, THE ASSESSEE VISITED T HOSE COUNTRIES IN CONNECTION WITH ESTABLISHING HOSPITALS AND MEDICAL COLLEGES THERE. ULTIMATELY FOLLOWING MOUS WERE SIGNED BY ASSESSEE O N BEHALF OF NIMS UNIVERSITY AND DIFFERENT COUNTRIES: S.NO. NAME OF COUNTRY MOU DATED PAPER BOOK PAGE 1. KAZAKHSTAN 20.05.2015 15 TO 17 1. DEL SACRO CUORE 30.03.2015 18 & 19 2. SLOVENIA 10.11.2014 20 TO 22 3. KAMPALA (UGANDA) 22.01.2015 23 TO 25 4. ITALY 16.11.2014 27 & 28 WHEN ASSESSEE VISITED MOZAMBIQUE ON INVITATION OF H EAD OF STATE FOR SAME REASON OF ESTABLISHING MEDICAL COLLEGE AND HOSPITAL, HE WAS ACCOMPANIED BY HIS NRI JEWELER FRIEND MR. BITHA L MAHESHWARI. MOZAMBIQUE BEING UNKNOWN AND NEW PLACE FOR SHRI MAHESHWARI, AT THE ASSURANCE/VERBAL GUARANTEE OF TH E ASSESSEE (BEING GUEST OF HEAD OF MOZAMBIQUE), SHRI MAHESHWAR I HAD ENTERED INTO SOME JEWELLERY BUSINESS DEALINGS THERE . COPY OF ITA NO. 837 /JP/2017 DR. BALBIR SINGH TOMAR, JAIPUR VS. ACIT, JAIPUR 18 ABOVE MESSAGE TO ASSESSEE MEANT ONLY THE INFORMATIO N (WHO STOOD GUARANTOR) FOR THE REMITTANCE MADE BY SHRI MAHESHWA RI FROM HIS OWN FOREIGN BANK ACCOUNT FOR HIS OWN BUSINESS DEALINGS. NO INCRIMINATING MATERIAL OR OTHER EVIDENCE WHATSOEVER WAS FOUND DUR ING COURSE OF SEARCH EVIDENCING ANY PAYMENT BY THE ASSESSEE EITHE R TO MOZAMBIQUE OR TO MR. MAHESHWARI OR HIS RELATIONS IN INDIA EVEN IN POST SEARCH PROCEEDINGS BUT BOTH THE LOWER AUTHORITIES PREFERRE D TO MAKE/SUSTAIN THE UNJUSTIFIED ADDITION OF RS.1,84,35,000/- IN HAN DS OF ASSESSEE. ALL THESE FACTS AND DOCUMENTS RELATING TO REMITTANCE OF US$3,00,000/- WERE ALSO EXAMINED BY THE HON'BLE SETTLEMENT COMMIS SION, ADDL. BENCH, NEW DELHI IN CASE OF M/S. INDIAN MEDICAL TRU ST. THE FINDING OF THE HON'BLE INCOME TAX SETTLEMENT COMMISSION ON THI S ISSUE IS APPEARING AT PAGE 123 ORDER DATED 30.06.2017 U/S. 245D(4)OF IT ACT IN CASE OF INDIA MEDICAL TRUST WHICH IS REPEATED HE REUNDER. 'DURING THE HEARING THE A.R. REQUESTED US TO ALLOW THE DEPARTMENT TO MAKE A REFERENCE TO FT & TR DIVISION OF CBDT TO MAKE ENQUIRIES THROUGH THE COMPETENT AUTHORITY. HOWEVER, AS THE PA YMENTS IN QUESTION HAVE BEEN MADE BY SH. BITTHAL MAHESHWARI A ND NOT BY IMT OR DR. TOMAR NO SUCH PERMISSION NEEDS TO BE GIV EN BY US. THE DEPARTMENT IS FREE TO TAKE ANY ACTION IN CASE OF SH . BITTHAL MAHESHWARI. HOWEVER, FROM THE CLARIFICATIONS GIVEN AND THE FACTS PLACES BEFORE US IT IS CLEAR THAT THE NAME OF THE A PPLICANT TRUST DOES NOT FIGURE ON ANY OF THE PAPERS RELIED UPON BY THE DEPARTMENT AND THE PAYMENTS HAVE BEEN MADE BY A THIRD PARTY OU TSIDE INDIA AND THERE IS NO MATERIAL ON RECORD TO SHOW THAT ANY SUCH FUNDS WERE PROVIDED BY DR. B.S. TOMAR. THEREFORE MERELY O N THE BASIS OF THE FACT THAT SH. MAHESHWARI SENT AN ENDORSEMENT OF PAYMENT BY ITA NO. 837 /JP/2017 DR. BALBIR SINGH TOMAR, JAIPUR VS. ACIT, JAIPUR 19 EMAIL TO DR. B.S. TOMAR, IT IS NOT POSSIBLE TO DERI VE ANY ADVERSE INFERENCE IN THE CASE OF THE APPLICANT TRUST'. IT WAS SUBMITTED BY THE LD AR THAT THOUGH THE ABOVE FINDINGS ARE IN CASE OF M/S. INDIAN MEDICAL TRUST BUT THE FI NDINGS IN CASE OF ASSESSEE ALSO FIGURES IN IT. AVOIDING THE ABOVE FINDING OF THE HON'BLE ITSC, WITHOUT ANY CHANGE IN FACTS AND CIRCU MSTANCES OF THE CASE, WITHOUT PROVIDING ANY OPPORTUNITY TO ASSE SSEE, LD. AO, IN A VERY ARBITRARY WAY, CONVERTED THE PROTECTIVE ADDI TIONS ORIGINALLY MADE VIDE ORDER DATED 26.12.2016 UNDER SECTION 143( 3) R.W.S 153B(1)(B) OF IT ACT (APPEALED AGAINST) INTO SUBSTA NTIVE ADDITIONS VIDE ORDER DATED 15.09.2017 MARKED AS 'ORDER GIVING EFFECT TO THE ORDER U/S.245D(4) OF THE ACT PASSED BY THE INCO ME TAX SETTLEMENT COMMISSION, NEW DELHI' THOUGH NO SUCH OR DER WAS PASSED BY HON'BLE ITSC IN ASSESSEES CASE. 21. THE LD DR VEHEMENTLY ARGUED THE MATTER AND TOO K US THROUGH THE FINDINGS OF THE LOWER AUTHORITIES. IT WAS SUBMITTE D THAT THE FINDINGS OF THE SETTLEMENT COMMISSION ARE IN THE CONTEXT OF IMT AND THE SAME HAS RIGHTLY NOT BEEN FOLLOWED IN CASE OF THE ASSESSEE. 22. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURUSED THE MATERIAL AVAILABLE ON RECORD. THE CASE OF THE REVENUE IS TH AT AN AMOUNT OF RS. USD 3,00,000 EQUIVALENT TO INDIAN RUPEES 1,84,35,00 0/- HAS BEEN TRANSACTED AND TRANSFERRED ON BEHALF OF DR. B. S. T OMAR TO VARIOUS FOREIGN BANK ACCOUNTS. THE BASIS OF SUCH FINDINGS B Y THE REVENUE IS ON ACCOUNT OF CERTAIN ENQUIRIES CONDUCTED DURING PRE-S EARCH INVESTIGATION, STATEMENT OF DR. B. S. TOMAR RECORDED DURING THE CO URSE OF SEARCH AND ITA NO. 837 /JP/2017 DR. BALBIR SINGH TOMAR, JAIPUR VS. ACIT, JAIPUR 20 THE DOCUMENT SEIZED DURING THE COURSE OF SEARCH. IT WOULD THEREFORE BE RELEVANT TO EXAMINE THE BASIS OF SUCH FINDING WHICH HAS BEEN ARRIVED AT BY THE REVENUE. 23. FIRSTLY, THE AO HAS REFERRED TO CERTAIN DISCREE T ENQUIRIES DURING PRE-SEARCH INVESTIGATION THAT TOMAR FAMILY IS MAKIN G A LOT OF INVESTMENT IN COUNTRIES OUTSIDE INDIA, PARTICULARLY IN MADAGAS CAR AND MOZAMBIQUE. HOWEVER, WE FIND THAT THERE IS NOTHING AVAILABLE ON RECORD IN TERMS OF SUCH INQUIRIES WHICH HAVE BEEN CONDUCTED BY THE REV ENUE AND AS TO HOW THE REVENUE HAS COME TO SUCH A FINDING. THEREFO RE, IN ABSENCE OF ANY MATERIAL ON RECORD IN TERMS OF THE NATURE OF SU CH ENQUIRIES, THE PERSON FROM WHOM SUCH INQUIRIES HAVE BEEN MADE, ANY DOCUMENTATION WHICH HAS BEEN FOUND AND WHAT IS THE EXACT FINDINGS ARISING OUT OF SUCH INQUIRIES, WE DO NOT FIND THERE IS ANY BASIC TO HOL D THAT THE SO CALLED DISCREET INQUIRIES ANYWAY ESTABLISHES THE FACT THAT DR. B.S.TOMAR HAS MADE ANY INVESTMENTS IN COUNTRIES OUTSIDE INDIA AND THE IMPUNGED REMITTANCES ARE IN CONNECTION THERETO. 24. NOW COMING TO THE STATEMENT OF DR. B. S. TOMAR RECORDED DURING THE COURSE OF SEARCH U/S 132(4). IN RESPONSE TO QUE STION NO. 28 WHEREIN THE ASSESSEE WAS SPECIFICALLY ASKED TO STAT E WHETHER HE OR ANY MEMBER OF HIS FAMILY OR HIS INSTITUTE HAS ANY FOREI GN BANK ACCOUNT, THE ASSESSEE HAD SUBMITTED THAT NEITHER HE NOR ANY MEMB ERS OF HIS FAMILY HAS ANY FOREIGN BANK ACCOUNT. IN QUESTION NO. 29, THE ASSESSEE WAS SPECIFICALLY ASKED WHETHER HE OR ANY MEMBERS OF HIS FAMILY OR THE INSTITUTE HAS MADE ANY FOREIGN INVESTMENT AND THE S OURCES OF SUCH FOREIGN INVESTMENT. IN RESPONSE, THE ASSESSEE SUBMI TTED THAT NEITHER HE ITA NO. 837 /JP/2017 DR. BALBIR SINGH TOMAR, JAIPUR VS. ACIT, JAIPUR 21 NOR HIS FAMILY OR HIS INSTITUTE HAS MADE ANY FOREIG N INVESTMENT. IN QUESTION NO. 42, WHERE THE ASSESSEES REFERENCE WAS DRAWN TO ANNEXURE-ASEXB 33 PAGE 177 WHEREIN REMITTANCE OF US D 1 LAC TO MR. N- REDO WAS MADE IN HIS UAE BANK ACCOUNT. IN RESPONSE, THE ASSESSEE SUBMITTED THAT HE HAS NO KNOWLEDGE ABOUT SUCH REMIT TANCE AND THERE IS NO FOREIGN EXCHANGE TRANSACTIONS WHICH HAS HAPPENED THROUGH HIS BANK ACCOUNT. IN QUESTION NO. 44, THE ASSESSEE WAS ASKE D WHETHER IMT IS CARRYING OUT ANY ACTIVITIES OUTSIDE INDIA. IN RESPO NSE, THE ASSESSEE SUBMITTED THAT IMT HAS NOT CARRIED OUT ANY BUSINESS OUTSIDE INDIA. IN QUESTION NO. 46, THE ASSESSEE WAS ASKED WHETHER THE Y HAVE ANY SHARE HOLDING IN ANY BUSINESS OUTSIDE THE COUNTRY AND WHE THER THERE IS ANY PROPOSAL IN THIS REGARD. IN RESPONSE, THE ASSESSEE SUBMITTED THAT HE HAS VISITED THOSE COUNTRIES ON THE INVITATION OF HEAD O F STATES. HOWEVER, THERE ARE NO BUSINESS ACTIVITIES WHICH HAVE BEEN ST ARTED IN THOSE COUNTRIES. ON PERUSAL OF THE ABOVE STATEMENT SO REC ORDED U/S 132(4), IT IS CLEAR THAT THE ASSESSEE HAS CONFIRMED THAT HE DO ES NOT HAVE ANY FOREIGN BANK ACCOUNT, NO FOREIGN EXCHANGE DEALINGS HAVE BEEN MADE BY HIM AND HE DOES NOT HAVE ANY BUSINESS ACTIVITIES OU TSIDE THE COUNTRY. IF REVENUE WERE TO DISBELIEVE SUCH STATEMENT WHICH HAS BEEN RECORDED ON OATH, THE ONUS IS ON THE REVENUE TO DEMONSTRATE THR OUGH VERIFIABLE EVIDENCE THAT WHAT THE ASSESSEE HAS STATED IN HIS S TATEMENT ON OATH IS INCORRECT OR THERE IS FALISITY IN SUCH STATEMENT. MERELY DISBELIEVING SUCH STATEMENT WITHOUT BRINGING ANYTHING CONTRARY ON REC ORD CANNOT ADVANCE THE CAUSE OF THE REVENUE. 25. NOW COMING TO THE SEIZED DOCUMENTS WHICH HAVE B EEN FOUND DURING THE COURSE OF SEARCH. PAGES 129 TO 130 AND 1 51 TO 155 OF ITA NO. 837 /JP/2017 DR. BALBIR SINGH TOMAR, JAIPUR VS. ACIT, JAIPUR 22 ANNEXURE A-27 RELATES TO REMITTANCE OF USD 1 LAC FR OM HSBC BANK ACCOUNT IN HONG KONG ON 09.05.2014 BY SHRI BITTHAL MAHESHWARI TO OCEANIX INTERNATIONAL FZE IN DUBAI UAE. THERE IS AN EMAIL COMMUNICATION FROM CHRISTINE OF AXIUS GOLD ON 8 TH MAY, 2014 ADDRESSED TO DR. B. S. TOMAR ON HIS GMAIL ACCOUNT AS WELL AS HIS OFFICIAL NIMS UNIVERSITY EMAIL ID WHEREIN THERE IS REFERENCE OF S OME TELECOM THAT DR. B. S. TOMAR HAD WITH MR. NYRADO AND BANK DETAILS WE RE PROVIDED IN THAT EMAIL COMMUNICATION FOR TRANSFER OF USD 1 LAC. THER EAFTER, ON 9 TH MAY, 2014, THE TRANSFER HAS HAPPENED BY SHRI BITTHAL MAH ESHWARI FROM HSBC BANK ACCOUNT IN HONG KONG OF USD 1,00,000 AND THERE IS A FORWARD EMAIL COMMUNICATION CONFIRMING THE REMITTANCE HAVIN G BEEN AND THE SAID COMMUNICATION IS BY SHRI BITTHAL MAHESHWARI AD DRESSED TO SHRI B.S.TOMAR. BASED ON THE SEIZED DOCUMENTS, IT IS AN ADMITTED POSITION OF THE REVENUE AS EMERGING FROM THE ASSESSMENT ORDE R THAT THE PAYMENT HAS BEEN MADE BY SHRI BITTHAL MAHESHWARI. H OWEVER, GIVEN THE FACT THAT ALL THE EMAIL COMMUNICATIONS HAVE BEE N ADDRESSED TO DR. B.S.TOMAR AND NOT TO MR BITTHAL MAHESHWARI, THE AO HAS COME TO A CONCLUSION THAT THE PAYMENT HAS BEEN MADE ON BEHALF OF DR. B.S.TOMAR FROM THE HSBC BANK ACCOUNT TO THE DUBAI BANK ACCOUN T BY SHRI BITTHAL MAHESHWARI OR HIS RELATIVE/ASSOCIATE WHO HAD A BANK ACCOUNT IN HSBC HONG KONG. IN OUR VIEW, THESE DOCUMENTS ON FIRST BL USH MIGHT CREATE SOME SUSPICION OR APPREHENSION IN MIND OF THE ASSES SING OFFICER THAT THERE IS SOME INVOLVEMENT OF DR B.S TOMAR IN THESE TRANSACTIONS. HOWEVER, RELYING MERELY ON THESE EMAIL COMMUNICATIO NS AND WITHOUT BRINGING ANY FURTHER EVIDENCE ON RECORD AS TO THE N ATURE AND EXTENT OF INVOLVEMENT OF DR B.S TOMAR, IT IS TOO PREMATURE TO HOLD THAT THE REMITTANCE OF USD 1 LAC HAS BEEN MADE BY SHRI BITTH AL MAHESHWARI ON ITA NO. 837 /JP/2017 DR. BALBIR SINGH TOMAR, JAIPUR VS. ACIT, JAIPUR 23 BEHALF OF DR. TOMAR. THERE IS NOTHING ON RECORD WHI CH PROVE THAT THE HSBC BANK ACCOUNT IN HONG KONG IS OPERATED ON BEHAL F OF DR. B.S.TOMAR, THERE IS ALSO NOTHING ON RECORD WHICH AN YWAY SUGGEST THAT FUNDS BELONGING TO DR. B.S.TOMAR HAVE BEEN ROUTED E ITHER DIRECTLY/INDIRECTLY THROUGH THE HSBC BANK ACCOUNT I N HONG KONG AND WHICH HAS BEEN USED FOR MAKING THE REMITTANCE TO OC EANIX INTERNATIONAL FZE, DUBAI. THERE IS NO ENQUIRY OR IN VESTIGATION WHICH HAS BEEN CARRIED OUT BY THE REVENUE WHICH DEMONSTRATE T HAT THE FUNDS FROM HONG KONG ARE UNDISCLOSED INCOME OF DR. B.S.TO MAR. THERE HAS BEEN NO ENQUIRY WHICH HAS BEEN CARRIED OUT WITH EIT HER THE HSBC BANK IN HONG KONG OR THE MASHREQ BANK PSC IN DUBAI TO DE TERMINE THE PARTICULARS OF THE ACCOUNT HOLDERS WHO HAVE MADE TH E REMITTANCE AND WHO HAS RECEIVED THE REMITTANCE. THERE IS NO ENQUIR Y OR INVESTIGATION DONE WITH OCEANIX INTERNATIONAL FZE, WHICH HAS RECE IVED THE REMITTANCE WHICH DEMONSTRATE THAT THE FUNDS HAVE BEEN REMITTED IN RELATION TO CERTAIN BUSINESS TRANSACTIONS UNDERTAKEN OR PROPOSE D TO BE UNDERTAKEN BY DR. B.S.TOMAR. NOW COMING TO PAGE NO. 180 OF ANN EXURE 27, IT IS AGAIN AN EMAIL COMMUNICATION FROM ALBERTO VAGUINA F ROM MOZAMBIQUE DATED 26 TH SEP, 2014 WHICH PROVIDES THE BANK DETAILS FOR MAKI NG THE REMITTANCE OF US$ 100,000 TO GEDENA-GESTAO DE DESEN VOLVIMENTO DE NAMPULA, SA. IT IS NOT CLEAR WHETHER THE SAID REMIT TANCE HAS ACTUALLY HAPPENED OR NOT. THERE IS NO SUBSEQUENT CONFIRMATIO N OR ANY BANK ADVICE WHICH HAS BEEN FOUND UNLIKE THE INITIAL REMI TTANCE OF US$ 100,000. SIMILARLY, ACCORDING TO PAGE NO. 182 OF THE SEIZED DOCUMENT, THERE IS ANOTHER EMAIL COMMUNICATION FROM CHRISTINE RAMOS OF AXIUS GOLD OF 17 TH JULY, 2014 GIVING THE BANK DETAILS FOR TRANSFER OF US $ 100,000 TO THE OCEANIX INTERNATIONAL FZE. IT IS AGA IN NOT CLEAR AND THERE ITA NO. 837 /JP/2017 DR. BALBIR SINGH TOMAR, JAIPUR VS. ACIT, JAIPUR 24 IS NOTHING ON RECORD WHICH SUGGEST THAT THERE IS AN Y REMITTANCE WHICH HAS ACTUALLY HAPPENED IN THIS REGARD. IN LIGHT OF T HE SAME, THE MERE FACT THAT CERTAIN EMAIL COMMUNICATIONS HAVE BEEN ADDRESS ED AND FORWARDED TO DR. B.S.TOMAR REGARDING THE FOREIGN REMITTANCES, TO OUR MIND, THE SAME IS NOT SUFFICIENT ENOUGH TO HOLD THAT THE REMI TTANCE HAVE BEEN MADE EITHER BY DR. B.S.TOMAR OR ON HIS BEHALF FROM THE UNDISCLOSED SOURCES OF INCOME. 26. A RELATED QUESTION THAT ARISES FOR CONSIDERATIO N IS AS TO WHY THE EMAIL COMMUNICATION WERE ADDRESSED TO DR. B.S.TOMAR . IN THIS REGARD, THE LD AR HAS SUBMITTED THAT SHRI BITTHAL MAHESHWAR I WHO IS A NON RESIDENT AND A CLOSE FRIEND OF DR. B.S.TOMAR HAD AC COMPANIED HIM TO MOZAMBIQUE AND HE WAS TRYING TO TAKE ADVANTAGE OF A CQUAINTANCE OF DR. B.S.TOMAR TO FURTHER HIS OWN BUSINESS INTEREST. IT WAS SUBMITTED THAT DR. B.S TOMAR HAS NOTHING TO DO WITH THE REMIT TANCE SO MADE BY SHRI BITTHAL MAHESWARI AND THE REMITTANCE WERE MADE BY SHRI BITTHAL MAHESWARI FROM HIS OWN BANK ACCOUNT FOR HIS OWN BUS INESS DEALINGS. IT WAS FURTHER SUBMITTED THAT NO INCRIMINATING MATERIA L OR OTHER EVIDENCE WHATSOEVER WAS FOUND DURING THE COURSE OF SEARCH EV IDENCING ANY PAYMENT BY THE ASSESSEE EITHER TO SHRI BITTHAL MAHE SWARI OR HIS RELATIVES IN INDIA/OUTSIDE INDIA EVEN IN POST SEARC H PROCEEDINGS. WE FIND THAT THE SAID CONTENTIONS AND EXPLANATION SO FURNIS HED WERE RAISED/MADE BEFORE THE LOWER AUTHORITIES AS WELL AN D THE SAME REMAIN UNCONTROVERTED BEFORE US. AS WE HAVE NOTED ABOVE, THE REVENUE HAS ADMITTED THE FACT THAT THE REMITTANCE HAS BEEN MADE BY SHRI BITTHAL MAHESWARI AND THE ASSESSEE HAVING DENIED MAKING SUC H REMITTANCES OR ANY DIRECT/INDIRECT INVOLVEMENT IN SUCH REMITTANCES , WHAT IS APPARENT ITA NO. 837 /JP/2017 DR. BALBIR SINGH TOMAR, JAIPUR VS. ACIT, JAIPUR 25 HAS TO BE TREATED AS REAL UNLESS THE REVENUE BRINGS ON RECORD ANY EVIDENCE WHICH ESTABLISHES HIS LINKAGES WITH REMITT ANCE HAVING BEING MADE ON HIS BEHALF FROM HIS UNDISCLOSED SOURCES. 27. IT WAS FURTHER SUBMITTED BY THE LD AR THAT ALL THESE SEIZED DOCUMENTS RELATING TO REMITTANCE OF USD 3 LACS WERE ALSO EXAMINED BY THE SETTLEMENT COMMISSION AND THE FINDINGS OF THE S ETTLEMENT COMMISSION ARE VERY CLEAR THAT THERE IS NO MATERIAL ON RECORD TO SHOW THAT ANY SUCH FUNDS WERE PROVIDED BY DR. B.S.TOMAR. IT WAS SUBMITTED BY THE LD AR THAT THOUGH THE ABOVE FINDINGS WERE RE NDERED IN THE CONTEXT OF INDIAN MEDICAL TRUST WHERE SUBSTANTIVE A DDITIONS WERE MADE, GIVEN THAT THE BASIS OF ADDITION IN THE HANDS OF TH E ASSESSEE ON PROTECTIVE BASIS IS ALSO THE SAME SEIZED MATERIAL A ND THE SAID FINDINGS OF THE SETTLEMENT COMMISSION ARE EQUAL APPLICABLE IN T HE INSTANT CASE. 28. THE FINDINGS OF THE SETTLEMENT COMMISSION IN CO NTEXT OF SUBJECT MATTER ARE CONTAINED AT PARA 13.7.4 OF ITS ORDER PA SSED U/S 245D(4) OF THE ACT DATED 30.06.2017 WHICH READS AS UNDER:- 13.7.4 FOREIGN INVESTMENTS: IN PARA 9.4 OF THE RULE 9 REPORT THE CIT HAS RAISED THE ISSUE OF A FOREIGN INVESTMENT MADE BY DR. B. S TOMAR. IT HAS BEEN STAT ED THAT DR. TORNAR MADE INVESTMENT OF U.S $ 3,00,000 DURING THE FINANC IAL YEAR 2014-15 IN SETTING UP A BUSINESS OF GOLD MINES, INFRASTRUCTURE AND MEDICAL COLLEGE ETC IN MOZAMBIQUE. IT IS STATED THAT ONE. SH. BITTH AL MAHESHWARI MADE A PAYMENT OF US $ 1,00,000 FROM HSBC BANK ACCOUNT IN HONG KONG ON ITA NO. 837 /JP/2017 DR. BALBIR SINGH TOMAR, JAIPUR VS. ACIT, JAIPUR 26 9.5.2014 TO A BANK IN DUBAI. IT IS STATED THAT SH. MAHESHWARI SENT A COPY OF THE RECEIPT OF THIS PAYMENT TO DR. B. S TOM AR ON THE SAME DATE. TWO FURTHER PAYMENTS OF US $ ONE MILLION EACH WERE MADE ON OR AFTER 26.9.14 TO THE BENEFICIARIES IN MOZAMBIQUE. ACCORDI NG TO THE CIT THESE INVESTMENTS WERE MADE ON BEHALF OF DR. TORNAR WHO C OULD HAVE PAID THE MONEY IN CASH TO THE INTERMEDIARIES IN INDIA OR BY SENDING MONEY THROUGH HAWALA FROM INDIA. THE APPLICANT DENIES HAV ING MADE ANY SUCH INVESTMENT OUT OF INDIA. IT WAS ARGUED THAT THERE I S NO REFERENCES TO THE APPLICANT TRUST IN ANY OF THE PAPERS REFERRED TO BY CIT THEREFORE THESE TRANSACTIONS ARE NOT RELEVANT IN THE PRESENT PROCEE DINGS. IT WAS HOWEVER CLARIFIED THAT SH BITTHAL MAHESWARI IS A NO N-RESIDENT AND A CLOSE FRIEND OF DR. B. S TOMAR AND HE HAD ACCOMPANI ED HIM TO MOZAMBIQUE. HE WAS TRYING TO TAKE ADVANTAGE OF THE ACQUAINTANCE OF DR. TOMAR WITH THE HEADS OF MOZAMBIQUE AND OTHER CO UNTRIES IN FURTHERING HIS OWN INTEREST BUT DR. TOMAR HAS NOTHI NG TO DO WITH THE GOLD OR OTHER MINE IN AFRICA. ACCORDING TO THE APPL ICANT THE ALLEGATION MADE BY CIT ARE THEREFORE BASED MERELY ON GUESSWORK AND SURMISES. DURING THE HEARING THE A.R REQUESTED US TO ALLOW TH E DEPARTMENT TO MAKE A REFERENCE TO FT & TR DIVISION OF CBDT TO MAKE ENQUIRIES THROUGH THE COMPETENT AUTHORITY. HOWEVER AS THE PAYMENTS IN QUESTION HAVE BEEN MADE BY SH. BITTHAL MAHESWARI AND NOT BY IMT OR DR. TOMAR NO SUCH PERMISSION NEED S TO BE GIVEN BY US. THE DEPARTMENT IS FREE TO TAKE ANY ACT ION IN THE CASE OF SH. BITTHAL MAHESWARI. HOWEVER, FROM THE CLARIFI CATIONS GIVEN AND THE FACTS PLACED BEFORE US IT IS CLEAR THAT THE NAME OF THE APPLICANT TRUST DOES NOT FIGURE ON ANY OF THE PAPER S RELIED UPON BY THE DEPARTMENT AND THE PAYMENTS HAVE BEEN MADE B Y A THIRD ITA NO. 837 /JP/2017 DR. BALBIR SINGH TOMAR, JAIPUR VS. ACIT, JAIPUR 27 PARTY OUTSIDE INDIA AND THERE IS NO MATERIAL ON REC ORD TO SHOW THAT ANY SUCH FUNDS WERE PROVIDED BY DR. B. S TOMAR. THE REFORE - MERELY ON THE BASIS OF THE FACT THAT SH MAHESWARI SENT AN ENDORSEMENT OF PAYMENT BY EMAIL TO DR. B. S TOMAR IT IS NOT POSSIB LE TO DERIVE ANY ADVERSE INFERENCE IN THE CASE OF THE APPLICANT TRUST. 29. WE FIND THAT THE SETTLEMENT COMMISSION HAS ALSO REACHED AT THE SAME CONCLUSION AS WE HAVE ARRIVED ABOVE THAT THE M ERE FACT THAT CERTAIN EMAIL COMMUNICATIONS HAVE BEEN ADDRESSED AN D FORWARDED TO DR. B.S.TOMAR REGARDING THE FOREIGN REMITTANCES, TH E SAME IS NOT SUFFICIENT ENOUGH TO HOLD THAT THE REMITTANCE HAVE BEEN MADE EITHER BY DR. B.S.TOMAR OR ON HIS BEHALF FROM HIS UNDISCLOSED SOURCES OF INCOME. 30. IN LIGHT OF ABOVE DISCUSSIONS AND IN THE ENTIRE TY OF FACTS AND CIRCUMSTANCES OF THE CASE, WE DONOT FIND ANY BASIS FOR MAKING THE ADDITION OF RS 1,84,35,000 IN THE HANDS OF THE ASSE SSEE. THE SAID ADDITION IS HEREBY DIRECTED TO BE DELETED. THE GRO UND OF APPEAL TAKEN BY THE ASSESSEE IS THUS ALLOWED. 31. REGARDING GROUND NO. 3, BRIEFLY STATED, THE FAC TS OF CASE ARE THAT THE AO OBSERVED THAT BASED ON VARIOUS SEIZED DOCUME NTS AND DETAILS COLLECTED DURING THE COURSE OF POST SEARCH INVESTIG ATION, THE ASSESSEE AND HIS WIFE HAVE FREQUENTLY TRAVELLED TO FOREIGN C OUNTRIES. THE AO DETERMINED AN AMOUNT OF RS. 2,70,050/- TOWARDS FORE IGN TOUR EXPENSES OF DR. SOBHA TOMAR AND RS. 3,33,750/- TOWARDS FOREI GN TOUR EXPENSES OF THE ASSESSEE AND THEREAFTER TAKING INTO CONSIDER ATION VISA CHARGES RS. 1,14,000/-, DETERMINED TOTAL FOREIGN TOUR EXPEN SES RS. 7,71,800/-. IT WAS FURTHER OBSERVED BY THE AO THAT THE NIMS UNI VERSITY HAS PAID RS. ITA NO. 837 /JP/2017 DR. BALBIR SINGH TOMAR, JAIPUR VS. ACIT, JAIPUR 28 4,54,900/- TOWARDS SUCH FOREIGN TOUR EXPENSES AND T HE BALANCE AMOUNT OF RS. 2,62,900/- WAS DETERMINED AS UNDISCLOSED EXP ENSES INCURRED IN CASH BY THE ASSESSEE AND HIS WIFE AS NO PROOF WITH REGARD TO THE SOURCE WAS FOUND DURING THE SEARCH AS WELL AS POST-SEARCH PROCEEDINGS. A SHOW CAUSE WAS ISSUED TO THE ASSESSEE AND THE RESPO NSE SO SUBMITTED BY THE ASSESSEE WAS HOWEVER, NOT FOUND ACCEPTABLE T O THE ASSESSING OFFICER. THE AO BROUGHT TO TAX HALF OF THE TOTAL UN EXPLAINED EXPENDITURE OF RS. 2,62,900/- TO TAX IN THE HANDS OF THE ASSESS EE. FURTHER HE HAS ESTIMATED EXPENSES OF RS. 50,000/- ON RETURN TRIP T O MILAN AND RS. 22,000/- AS RETURN TRIP TO SHARJAH. THE AO ACCORDIN GLY MADE AN ADDITION TO RS. 2,03,450/- IN THE HANDS OF ASSESSEE. 32. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTE R IN APPEAL BEFORE THE LD CIT(A) AND SUBMITTED THAT DURING THE COURSE OF SEARCH PROCEEDINGS, NO INCRIMINATING MATERIAL OR OTHER EVI DENCE WAS FOUND THAT THE APPELLANT HAS INCURRED FOREIGN TOUR EXPENSES, V ISA EXPENSES AND OTHER EXPENSES OUT OF HIS UNDISCLOSED SOURCES. IT W AS FURTHER SUBMITTED THAT THE ASSESSEE HAS INCURRED THE FOREIGN TOUR EXP ENSES OUT OF HIS PERSONAL DRAWINGS OF RS. 10,17,138/- DURING THE YEA R. THE LD. CIT(A) HOWEVER CONFIRMED THE ADDITION RELYING ON THE FINDI NG OF THE AO THAT THE EXPENSES OF FOREIGN TOUR ON FOREIGN TRAVEL IS N OT RELATABLE TO DRAWINGS AND NO CASH FLOW OR EVIDENCE IS SUBMITTED TO SHOW THAT SUCH CASH PAYMENT HAS BEEN MADE OUT OF THE CUMULATIVE DR AWINGS MADE DURING THE YEAR. FURTHER, LD. CIT(A) REFERRED TO TH E DECISION OF THE SETTLEMENT COMMISSION WHICH HAS ALSO REFUSED TO REC OGNIZE THAT EXPENSES ON SUCH TRIPS HAVE BEEN MADE FROM THE ACCO UNTS OF IMT. ITA NO. 837 /JP/2017 DR. BALBIR SINGH TOMAR, JAIPUR VS. ACIT, JAIPUR 29 33. NOW, THE ASSESSEE IS IN APPEAL AGAINST THE SAID FINDINGS OF THE LD CIT(A). DURING THE COURSE OF HEARING, THE LD. AR RE ITERATED THE SUBMISSIONS MADE BEFORE THE LOWER AUTHORITIES AND S UBMITTED THAT ADDITIONS HAVE BEEN MADE ON MERE ESTIMATION AND GUE SS WORK WITHOUT ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE LIVES IN A JOIN T FAMILY IN A HOUSE JOINTLY OWNED BY HIM AND HIS WIFE, THEREFORE, NO RE NT IS PAYABLE FOR RESIDENCE. BESIDES, THE ASSESSEE AND THE FAMILY MEM BERS HAVE DRAWN SUBSTANTIAL AMOUNT OF DRAWINGS IN FY 2014-15 DULY D ISCLOSED IN THEIR RESPECTIVE INCOME TAX RETURNS. IT WAS FURTHER SUBMI TTED THAT THE INDIVIDUAL DRAWINGS OF THE ASSESSEE DURING THE YEAR COMES TO RS. 10,17,138/- WHICH IS SUFFICIENT ENOUGH TO TAKE CARE OF FOREIGN TOUR EXPENSES WHICH HAVE BEEN BROUGHT TO TAX IN THE HAND S OF THE ASSESSEE. 34. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE AO HAS MADE AN ADDITION OF RS. 2,03,450/- ON ACCOUNT OF UNEXPLAINED FOREIGN TOUR EXPENSES. THE L D AR HAS REITERATED THE CONTENTIONS RAISED BEFORE THE LD CIT(A) AND SUB MITTED THAT THE ASSESSEES DRAWINGS DURING THE YEAR ARE SUFFICIENT ENOUGH TO EXPLAIN THE SOURCE OF SUCH EXPENDITURE. IN SUPPORT, OUR REFERE NCE WAS DRAWN TO THE ASSESSEES CAPITAL ACCOUNT FOR THE FINANCIAL YE AR ENDED 31 ST MARCH, 2015 WHICH SHOWS TOTAL DRAWINGS OF RS. 10,17,138/-. IN ABSENCE OF ANYTHING CONTRARY ON RECORD, IT WOULD BE REASONABLE TO HOLD THAT THE FOREIGN TOUR EXPENSES OF RS 203,450 ARE MET OUT OF SUCH DRAWINGS. IN THE RESULT, THE ADDITION MADE BY THE AO IS HEREBY D ELETED AND GROUND OF THE ASSESSEES APPEAL IS ALLOWED. ITA NO. 837 /JP/2017 DR. BALBIR SINGH TOMAR, JAIPUR VS. ACIT, JAIPUR 30 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 27/04/2018. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 27/04/2018. * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- DR. BALBIR SINGH TOMAR, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- ACIT, JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 837/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR
