Dr Prakash K. Kankariya, Ahmednagar V. Jt. CIT (OSD)Central Circle, 2(2), Pune, Pune

ITA 88/PUN/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9992 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-09-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 26-07-2012
• Assessment Year: 2000-2001
• Appeal Filed On: 20-01-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S K SINGH
• Assessee Lawyers: SUNIL PATHAK
• Keywords: Unexplained investment; Income from undisclosed sources; Search and seizure; Corroborative evidences
• Section: 143(3)

Judgement Text

1 INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI R.S. PADVEKAR, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO. 87/PN/2011 TO ITA NO. 92/PN/2011 (ASSESSMENT YEARS 1999-00 TO 2004-05) PRAKASH K. KANKARIYA, SAI SURYA NETRA SEVA, VARDHAMAN MANIK CHOWK, AHMEDNAGAR. PAN NO. AGBPK 5896R .. APPELLANT VS. JT. COMMISSIONER OF INCOME, CIRCLE-2(2), C/O. INCOME TAX OFFICER, PMT BUILDING, SWARGATE, PUNE. .. RESPONDENT ASSESSEE BY : SHRI SUNIL PATHAK DEPARTMENT BY : SHRI S.K. SINGH DATE OF HEARING : 26-07-2012 DATE OF PRONOUNCEMENT : 24-09-2012 ORDER PER R.S. PADVEKAR JM: THIS BATCH OF SIX APPEALS BY THE ASSESSEE ARE ARISI NG OUT OF THE ASSESSMENTS FRAMED IN CONSEQUENCE OF THE SEARCH AND SEIZURE OPERATION AGAINST THE ASSESSEE U/S.153A R.W.S. 143(3) OF THE ACT. THE ASSESSMENT YEARS INVOLVED ARE 1999-00, 2000-01, 2001-02, 2002- 03, 2003-04, AND 2004-05. I. ITA NO.87/PN/2011 (ASST. YEAR 1999-2000): 2. THE ASSESSEE HAS TAKEN THE FOLLOWING EFFECTIVE G ROUND : THE LD. CIT(APPEALS) ERRED IN CONFIRMING AND SUSTA INING THE ADDITION OF RS. 5,00,000/- MADE BY THE ASSESSING OFFICER AS SUPPRES SED PROFESSIONAL INCOME. 3. THE SOLITARY ISSUE FOR CONSIDERATION IS ADDITION OF RS.5 LAKHS MADE BY THE ASSESSING OFFICER. BRIEF STATED FACTS ARE AS U NDER : THE ASSESSEE IS AN OPHTHALMIC SURGEON. A SEARCH A ND SEIZURE ACTION U/S.132 OF THE ACT WAS CONDUCTED ON 01-09-2004 IN T HE BUSINESS AS WELL AS RESIDENTIAL PREMISES OF THE ASSESSEE. IN CONSEQUEN CE OF THE SEARCH AND 2 SEIZURE ACTION, ASSESSMENT OF THE ASSESSEE HAS BEEN FRAMED U/S.153A R.W.S.143(3). 4. SO FAR AS THE ISSUE OF ADDITION OF RS.5 LAKHS IS CONCERNED THE ASSESSING OFFICER HAS OBSERVED THAT ONE AGREEMENT WAS SEIZED BETWEEN SHRI DOKE AND THE ASSESSEE. AS PER THE SAID AGREEMENT SHRI DOKE AGREED TO SELL A PLOT TO SHRI SAVEDI BEING SURVEY NO.232, PLOT NO. 2 TO 17. THE CONTENTS OF THE AGREEMENT ARE NOT IN DISPUTE. IT WAS FOUND THAT AS PER THE NOTINGS ON THE REVERSE SIDE ON THE PAGE OF THE SAID AGREEMENT, THE ASSESSEE HAS PAID RS.10 LAKHS UPTO 20-03-1997 AND AS PER THE AGREEMENT THE BALANCE AMOUNT OF RS.5 LAKHS WAS TO BE PAID WITHIN SIX MONTHS FROM TH E DATE OF AGREEMENT DATED 20-03-1997. AS OBSERVED BY THE ASSESSING OFF ICER SHRI DOKE HAS GIVEN ACKNOWLEDGEMENT OF RECEIVING RS. 5 LAKHS IN C ASH ON 04-10-1998 ON THE SAME PAGE WHICH IS DULY SIGNED BY BOTH THE ASSE SSEE AND SHRI DOKE. AS THE SAID AMOUNT WAS NOT RECORDED IN THE BOOKS OF AC COUNT, THE ASSESSING OFFICER MADE ADDITION OF RS.5 LAKHS. THE LD. CIT(A ) CONFIRMED THE ADDITION. 5. WE HAVE HEARD THE PARTIES. THE REASONS GIVEN BY THE LD. CIT(A) FOR SUSTAINING THE ADDITION CAN BE SUMMARIZED AS UNDER : AS PER THE EVIDENCES FOUND DURING SEARCH, IT WAS C LEAR THAT THE ASSESSEE WAS ENGAGED IN SUPPRESSION OF PROFESSIONAL RECEIPTS. THE ASSESSEE BEING ENGAGED IN MEDICAL PROFESSION SINCE MANY YEARS, IT IS EVIDENT THAT THE INVESTMENTS HAVE BEEN SOURCED OUT OF THE SAID PROFESSIONAL INCOME. IN THE ASSESSEES CASE, THREE LAND TRANSACTIONS IN THE BLOCK PERIOD HAVE BEEN NOTICED, WHICH HAVE NOT BEEN RECORDED IN THE BOOKS. IT IS COMMON KNOWL EDGE THAT SUCH LAND DEALINGS NORMALLY INVOLVE THE USE OF UNACCOUNTED MONEY. THEREFORE, I N RELATION TO LAND TRANSACTIONS IN RESPECT OF WHICH NO SUCH DIRECT EVIDENCE HAS BEEN FOUND, IT CA NNOT BE PRESUMED THAT SUCH TRANSACTIONS DID NOT INVOLVE UNACCOUNTED MONEY. THE ASSESSEE WAS SUPPRESSING HIS PROFESSIONAL INCOM E FOR THIS PERIOD ALTHOUGH NO EVIDENCE WAS FOUND. THE PROPOSITION THAT THE ENTRY WAS NOT RECORDED IN THE BOOKS REGARDING THE CASH PAYMENT DUE TO THE INADVERTENT MISTAKE WAS NOT ACCEPTABLE. THE BO OKS THAT HAVE BEEN RE-WRITTEN CANNOT BE CONSIDERED FOR EXPLAINING THE EVIDENCES OF UNACCOUN TED UTILIZATIONS. IT IS TO BE PRESUMED THAT IF THE ENTRY FOR CASH PAYMENT IS NOT FOUND IN THE BOOK S, THE PAYMENT WAS NOT MADE OUT OF THE CASH BALANCE IN THE BOOKS. HENCE, THE PAYMENT OF RS. 5 LAKHS IN CASH IS UNEXPLAINED. 6. THE LD. COUNSEL SUBMITS THAT THE AMOUNT OF RS. 5 LAKHS PAID BY THE ASSESSEE TO SHRI DOKE BROTHERS ON 04-10-1998 WAS IN RESPECT OF THE PROPOSED LAND DEAL WHICH DID NOT MATERIALIZE. THE SAID AMOUNT WAS RECEIVED BACK FROM SHRI H.S. DOKE ON 04-12-1998 AND THE SAID FACT HAS BEEN ACCEPTED BY SHRI H.S. DOKE IN HIS STATEMENT RECORDE D DURING SURVEY ACTION U/S.133A BUT THE SAID ENTRY WAS NOT RECORDED IN THE BOOKS OF ACCOUNT DUE TO INADVERTENT MISTAKE. HE SUBMITS THAT NO EVIDENCE I S FOUND THAT THE ASSESSEE HAS SUPPRESSED ANY INCOME. HE SUBMITS THA T AS ON 04-10-1998 THE CASH BALANCE AS PER THE BOOKS OF ACCOUNT OF THE ASSESSEE WAS MORE THAN 3 RS. 5 LAKHS AND THE SAID INVESTMENT HAS BEEN COVERE D BY THE PROPORTIONATE INCOME DISCLOSED BY THE ASSESSEE. HE SUBMITS THAT JUST BECAUSE THE ASSESSEE FAILED TO MAKE ENTRY OF CASH PAYMENT OF RS .5 LAKHS IN THE BOOKS THAT DOES NOT MEAN THAT THE ASSESSEE HAD NO EXPLANA TION FOR THE SOURCE OF HIS EXPENDITURE. 7. WE ARE UNABLE TO ACCEPT THE ARGUMENTS OF THE LD. COUNSEL. THE FACTUM OF THE TRANSACTION HAS NOT BEEN DENIED. SHR I H.S. DOKE WAS PAID RS. 5 LAKHS IN CASH ON 04-10-1998. ADMITTEDLY THE SAID TRANSACTION WAS NOT RECORDED IN THE BOOKS OF ACCOUNT BY THE ASSESSEE. THE JUSTIFICATION OF THE ASSESSEE IS THAT EVEN IF THE SAID CASH TRANSACTION IS NOT RECORDED IN THE BOOKS, BUT ON THE DATE OF PAYMENT, I.E. 04-10-1998, THE ASSESSEE HAD SUFFICIENT CASH BALANCE AND HENCE, THERE IS NO JUST IFICATION TO MAKE THE ADDITION. IT IS NOT DEMONSTRATED AS TO HOW THE CAS H BALANCE OF MORE THAN RS. 5 LAKHS WAS MAINTAINED CONSISTENTLY AND HOW THE RE WAS ADDITION AND DELETION TO THE CASH BALANCE FROM 04-10-1998. EVEN THOUGH IT IS CLAIMED THAT THE AMOUNT WAS RECEIVED BACK FROM SHRI H.S. DO KE ON 04-12-1998, THAT IS ALSO NOT RECORDED IN THE BOOKS OF ACCOUNT. BURD EN IS ON THE ASSESSEE TO DEMONSTRATE THAT BETWEEN 04-10-1998 TO THE ALLEGED DATE OF RECEIPT OF THE SAID AMOUNT, I.E., 04-12-1998 THE ASSESSEES CASH B ALANCE WAS SUFFICIENT TO COVER UP THE OTHER TRANSACTIONS ALSO. IN OUR OPINI ON, THE ADDITION MADE BY THE ASSESSING OFFICER IS JUSTIFIED. WE ACCORDINGLY CONFIRM THE ORDER OF THE LD. CIT(A) ON THIS ISSUE AND DISMISS THE GROUND TAK EN BY THE ASSESSEE. II. ITA NO.88/PN/2011 (ASST. YEAR 2000-01): 8. THE ASSESSEE HAS TAKEN THE FOLLOWING EFFECTIVE GROUND : THE LD. CIT(APPEALS) ERRED IN CONFIRMING AND SUSTA INING THE ADDITION OF RS.32,45,485/- MADE BY THE ASSESSING OFFICER AS SUP PRESSED PROFESSIONAL INCOME. 9. THE ASSESSMENT FOR ASST. YEAR 2000-01 HAS ALSO B EEN COMPLETED U/S.153A R.W.S. 143(3) OF THE ACT IN CONSEQUENCE OF THE SEARCH AND SEIZURE ACTION U/S.132. REGARDING THE NATURE OF THE PROFES SION IS ALREADY MENTIONED WHILE DECIDING THE ASSESSEES APPEAL FOR ASST. YEAR 1999-2000. 10. THE SOLITARY ISSUE IN THIS YEAR IS ADDITION OF RS.32,45,485/- MADE BY THE ASSESSING OFFICER. 11. SO FAR AS THE ADDITION OF RS.5,04,600/- IS CONC ERNED AS OBSERVED BY THE ASSESSING OFFICER ONE AGREEMENT WAS FOUND BETWE EN SHRI DOKE BROTHERS 4 AND THE ASSESSEE AND THAT AGREEMENT WAS IN RESPECT OF SALE OF PLOT BEARING SURVEY NO. 84/125, PLOT NOS. 1 TO 17 TO THE ASSESSE E @ 155.16 PER SQ.FT. ON THE SAID AGREEMENT THE PAYMENT OF RS.20 LAKHS WA S ACKNOWLEDGED BY SHRI DOKE BROTHERS. IN THE STATEMENT RECORDED U/S. 132(4) ON 03-09-2004, THE ASSESSEE ADMITTED THAT HE HAD PAID RS.20 LAKHS IN CASH TO SHRI DOKE BROTHERS BUT AS THE TRANSACTION DID NOT MATERIALIZE THE AMOUNT PAID TO SHRI DOKE BROTHERS WAS RECEIVED BACK. THE SAID TRANSACT ION WAS NOT RECORDED IN THE REGULAR BOOKS OF ACCOUNT. AFTER THE SEARCH THE ENTRIES WERE PASSED IN THE BOOKS OF ACCOUNT. THERE WAS SHORTAGE OF CASH O F RS.5,04,600/- WHICH WAS DECLARED BY THE ASSESSEE AS THE ADDITIONAL INCO ME IN THE RETURN FILED FOR THE ASST. YEAR 2000-01 IN RESPONSE TO NOTICE ISSUED U/S.153A. 12. SO FAR AS THE SECOND ADDITION OF RS.27,40,885/- IS CONCERNED THOUGH IT WAS CLAIMED THAT THE AMOUNT WAS RECEIVED BACK BUT T HERE WAS NO ENTRY IN THE BOOKS OF ACCOUNT. THE ASSESSEE PLEADED THAT PAR T OF THE PAYMENT OF RS.14,95,400/- WAS MADE FROM THE CASH AVAILABLE IN THE BOOKS AND THE DIFFERENCE BETWEEN THE AMOUNT PAID OF RS.20 LAKHS A ND THE CASH AVAILABLE IN THE BOOKS WAS OFFERED TO TAX BY THE ASSESSEE THAT W AS RS.5,04,600/- BUT THE ASSESSING OFFICER TREATED THE ENTIRE PAYMENT OF RS. 20 LAKHS AS UNACCOUNTED PAYMENT BY THE ASSESSEE. THE ASSESSING OFFICER HAS FURTHER NOTED THAT THE ASSESSEE WAS FOUND MAINTAINING TWO SETS OF BOOKS OF ACCOUNTS FOR THE ASST. YEAR 2002-03 AND 2004-05. ACCORDING TO THE ASSESSI NG OFFICER THE ASSESSEE WAS NOT RECORDING THE PROCESSIONAL RECEIPTS TO THE EXTENT OF 25% WHICH WAS RELATED TO THE OPERATIONS. THE ASSESSEE HAS HIMSEL F OFFERED THE INCOME OF RS.18,32,000/- IN THE ASST. YEAR 2003-04 AFTER SEAR CH. THE ASSESSING OFFICER ESTIMATED 25% OF THE DISCLOSED INCOME AS SU PPRESSED INCOME FROM THE PROFESSION. ACCORDINGLY THE ASSESSING OFFICER HAS WORKED OUT THE UNDISCLOSED PROFESSIONAL RECEIPTS OF RS.32,45,485/- AND AFTER GIVING THE BENEFIT OF SET OFF OF RS.5,04,600/- OFFERED BY THE ASSESSEE IN THE RETURN OF INCOME, THE DIFFERENCE OF RS.27,40,885/- WAS ADDED AS UNDISCLOSED INCOME. 13. THE ASSESSEE CHALLENGED THE SAID ADDITION BEFOR E THE LD. CIT(A) BUT WITHOUT SUCCESS. THE LD. CIT(A) CONFIRMED THE ADDIT ION WHOSE REASONS CAN BE SUMMARIZED AS UNDER : AS PER THE EVIDENCES FOUND DURING SEARCH, IT WAS N OTICED THAT THE ASSESSEE WAS ENGAGED IN SUPPRESSION OF PROFESSIONAL RECEIPTS FOR THE PERIOD PRIOR TO THE BLOCK PERIOD AND CONSIDERING THE EVIDENCES REGARDING SUPPRESSION OF INCOME IN THE SU BSEQUENT PERIOD AND ALSO THE FACT THAT THE PAYMENTS OF RS.20 LAKHS HAVE NOT BEEN RECORDED IN T HE BOOKS OF THE ASSESSEE, THE ADDITION MADE IS REASONABLE. THE ASSESSEE BEING ENGAGED IN MEDICAL PROFESSION SI NCE MANY YEARS, IT IS EVIDENT THAT THE INVESTMENTS HAVE BEEN SOURCED OUT OF THE SAID PROFE SSIONAL INCOME. IN THE ASSESSEES CASE, THREE LAND TRANSACTIONS IN THE BLOCK PERIOD HAVE BEEN NOT ICED, WHICH HAVE NOT BEEN RECORDED IN THE 5 BOOKS. IT IS COMMON KNOWLEDGE THAT SUCH LAND DEALI NGS NORMALLY INVOLVE THE USE OF UNACCOUNTED MONEY. THEREFORE, IN RELATION TO LAND TRANSACTIONS IN RESPECT OF WHICH NO SUCH DIRECT EVIDENCE HAS BEEN FOUND, IT CANNOT BE PRESUMED THAT SUCH TRA NSACTIONS DID NOT INVOLVE UNACCOUNTED MONEY. THE EVIDENCES FOUND WITH REGARD TO SUPPRESSION OF I NCOME PROVIDE STRENGTH TO THE PROPOSITION THAT UNACCOUNTED INCOME HAD BEEN EARNED BY THE ASSE SSEE AND WAS UTILISED IN LAND DEALS FOR WHICH NO EVIDENCE HAS BEEN FOUND. THE PROPOSITION THAT THE ENTRY WAS NOT RECORDED DUE TO INADVERTENT MISTAKE WAS NOT ACCEPTABLE. THE BOOKS THAT HAVE BEEN RE-WRITTEN AFTER THE SEARC H CANNOT BE CONSIDERED FOR EXPLAINING THE EVIDENCES OF UNACCOUNTED UTILIZATIONS. NOW THE ASSESSEE IS IN APPEAL BEFORE US. 14. WE HAVE HEARD THE PARTIES. THE LD. COUNSEL SUBM ITS THAT SHRI H.S. DOKE WHO HAS ENTERED INTO AN AGREEMENT WITH THE ASS ESSEE HAS ACCEPTED MORE PARTICULARLY IN THE STATEMENT RECORDED DURING SURVEY ACTION U/S.133A THAT THE AMOUNT WAS RETURNED TO THE ASSESSEE BUT TH E ENTRY REMAINED TO BE RECORDED IN THE BOOKS OF ACCOUNT INADVERTENTLY. HE SUBMITS THAT ASSESSEE HAS ALREADY OFFERED RS.5,04,600/- OUT OF RS.20 LAK HS, TRANSACTION WITH SHRI H.S. DOKE. HE SUBMITS THAT THERE WAS SUFFICIENT CA SH BALANCE ON THE DATE OF PAYMENT TO SHRI DOKE AND MERELY BECAUSE THE TRANSAC TION IS NOT RECORDED IN THE BOOKS OF ACCOUNT, THE ADDITION SHOULD NOT BE MA DE. HE FURTHER SUBMITS THAT THE ASSESSING OFFICER HAS ESTIMATED THE UNDISC LOSED PROFESSIONAL RECEIPTS AT 25% OF THE DISCLOSED RECEIPTS. HE SUBM ITS THAT IN THIS YEAR NO EVIDENCE WAS FOUND THAT THE ASSESSEE HAD SUPPRESSED HIS PROFESSIONAL RECEIPTS AND THEREFORE THERE IS NO REASON TO ESTIMA TE SUCH UNDISCLOSED INCOME. THE LD. COUNSEL RELIED ON THE FOLLOWING DE CISIONS : 1. RAMDEO OIL INDUSTRIES PVT. LTD. ITAT, PUNE. 2. ROYAL MARWAR TOBACCO PRODUC (P) LTD. 120 TTJ 387 (AHD.) 3. H.C. CHANDNA (P) LTD. VS. DCIT 9 TTJ 243 (D EL) 4. ACIT VS. SMT. RADHA RANI 101 TTJ 1017 (JP) 5. ACIT VS. AMBICA FOOD INDUSTRIES LTD. 110 TTJ 680 (HYD) 6. ACIT VS. M.M. SALES AGENCIES 97 TTJ 575 (JP) 7. STATE OF ORISSA VS. J.P. SIKIRIA & CO. 67 ST C 101 (ORISSA) 15. ALTERNATIVELY HE SUBMITS THAT THE PAYMENT MADE TO S HRI DOKE IS FROM THE UNACCOUNTED PROFESSIONAL RECEIPTS AND HENCE WHE N THE EVIDENCE IS ONLY TO THE EXTENT OF RS.20 LAKHS THEN THE ADDITION SHOU LD BE RESTRICTED TO RS.20LAKHS AND AS THE ASSESSEE HAS OFFERED RS.5,04, 600/- HENCE, AFTER SET OFF OF SAID AMOUNT THE ADDITION SHOULD BE RESTRICTE D IN RESPECT OF THE BALANCE AMOUNT OF RS.14,95,400/-. HE FURTHER ALTERNATIVELY ARGUED THAT THE ENTIRE ADDITION OF THE ESTIMATION IS MADE IN THE HANDS OF THE ASSESSEE, WHEN ADMITTEDLY THE ASSESSEE AND HIS WIFE BOTH WERE INVO LVED IN THE OPERATIONS 6 AND THEY WERE BIFURCATING THE RECEIPTS AT 70:30, HE NCE, IF AT ALL THE ADDITION IS TO BE MADE, THEN THE SAME SHOULD BE RESTRICTED T O 70% OF THE ESTIMATED RECEIPTS. WE ALSO HEARD THE LD. DR 16. ADMITTEDLY IN THIS YEAR AN AGREEMENT WAS FOUND WHICH WAS IN RESPECT OF PURCHASE TRANSACTION OF THE PLOT OF LAND. IT IS NOT DISPUTED THAT THE CONSIDERATION MENTIONED IN RESPECT OF THE SAID LAND TRANSACTION WAS RS.20LAKHS. AS PER THE STATEMENT RECORDED FROM SHR I DOKE, WHO IS A PARTY TO THE SAID AGREEMENT, HE STATED THAT THE TRANSACTI ON COULD NOT BE MATERIALIZED & AMOUNT WAS RETURNED TO THE ASSESSEE. THE ASSESSEE OFFERED RS.5,04,600/- WHICH WAS AS PER THE ASSESSEE THE SHO RTAGE OF THE CASH ON THE DATE OF PAYMENT TO SHRI DOKE. HE SUBMITS THAT ADMITTEDLY IN THE PRESENT YEAR OTHER THAN SAID SALE AGREEMENT NO OTHE R INCRIMINATING MATERIAL WAS FOUND IN SEARCH ACTION. 17. SO FAR AS THE SEARCH AND SEIZURE OPERATIONS ARE CONCERNED, IF NO INCRIMINATING MATERIAL IS FOUND, THEN ADDITION CANN OT BE SUSTAINED MERELY ON THE BASIS OF ESTIMATION AND PRESUMPTIONS. WE FIND THAT TO THE EXTENT OF RS.20 LAKHS THE DOCUMENT AGAINST THE ASSESSEE WAS F OUND. IN OUR OPINION, AT THE MOST, THE ADDITION SHOULD BE SUSTAINED TO TH E EXTENT OF RS.20 LAKHS. THE ASSESSING OFFICER HAS ESTIMATED 25% AS SUPPRESS ED PROFESSIONAL RECEIPTS, MORE PARTICULARLY IN RESPECT OF THE OPERA TIONS BUT NO SUPPORTING EVIDENCE IS THERE EXCEPT THE LAND TRANSACTION OF RS .20 LAKHS. IN OUR OPINION. THE ADDITION AT THE MOST SHOULD BE MADE BASED ON TH E INCRIMINATING MATERIAL SHOWING THE SUPPRESSION OF THE LAND TRANSACTION WHI CH IS RS.20 LAKHS. THE ASSESSEE HAS ALREADY OFFERED RS.5,04,600/- AND HENC E ADDITION SHOULD BE RESTRICTED TO THE BALANCE OF RS.14,95,400/- IN PLA CE OF RS.27,40,885/- . ACCORDINGLY THE ASSESSEE GETS THE RELIEF TO THE EXT ENT PRO-TANTO . 18. SO FAR AS THE FURTHER ALTERNATE PLEA OF THE ASS ESSEE, ON THE SUPPRESSED INCOME IS ESTIMATED BY THE ASSESSING OFFICER, THE S AME SHOULD BE ALLOCATED AT 70:30 BETWEEN THE ASSESSEE AND IN THE HANDS OF H IS WIFE AS THEY WERE SHOWING THE RECEIPTS IN THAT WAY. AT THE FIRST INS TANCE, WE FIND NO MERIT IN THE CONTENTION OF THE ASSESSEE FOR BIFURCATING THE RECEIPTS AT 70:30, AS NO EVIDENCE IS PLACED BEFORE US TO SHOW THAT THE PROPO RTIONATE RECEIPTS WERE BIFURCATED BY THE ASSESSEE AND HIS WIFE IN THE SAME WAY. MOREOVER, WE HAVE ALREADY SUSTAINED THE ADDITION TO THE EXTENT O F RS.20 LAKHS BY GIVING THE BENEFIT OF SET OFF OF RS.5,04,600/- HENCE NO FU RTHER BENEFIT CAN BE GIVEN. 19. IN THE RESULT, THE RESPECTIVE GROUNDS ARE PARTL Y ALLOWED. 7 III. ITA NO.89/PN/2011 (ASST. YEAR 2001-02) : 20. THE ASSESSEE HAS TAKEN THE FOLLOWING EFFECTIVE GROUND : THE LD. CIT(APPEALS) ERRED IN CONFIRMING AND SUSTA INING THE ADDITION OF RS.21,76,725/- MADE BY THE ASSESSING OFFICER AS SUP PRESSED PROFESSIONAL INCOME. 21. IN THIS YEAR, THE ASSESSEE HAS FILED THE RETUR N OF INCOME DECLARING THE TOTAL INCOME AT RS.31,23,003/-. THE ASSESSING OFFI CER HAS ESTIMATED THE SUPPRESSED PROFESSIONAL RECEIPTS AT 20% OF THE TOTA L ESTIMATED RECEIPTS OF THIS YEAR. IN THE OPINION OF THE ASSESSING OFFICER INCRIMINATING EVIDENCE IS FOUND AGAINST THE ASSESSEE SHOWING THE SUPPRESSION OF HIS PROFESSIONAL RECEIPTS DURING THE COURSE OF SEARCH. THE ASSESSIN G OFFICER ALSO OBSERVED THAT THE ASSESSEE HAS MADE UNACCOUNTED INVESTMENT. THE TOTAL OPERATIONAL RECEIPTS SHOWN BY THE ASSESSEE FOR THE YEAR UNDER C ONSIDERATION WERE TO THE EXTENT OF RS.87,06,900/- AND THE ASSESSING OFFICER HAS ESTIMATED RECEIPTS AT 20% AS SUPPRESSED PROFESSIONAL RECEIPTS AND WORKED OUT THE TOTAL PROFESSIONAL RECEIPTS EARNED FROM THE OPERATIONS AT RS.1,08,83,625/-, AFTER REDUCING THE DECLARED RECEIPTS OF RS.87,06,900/-, A RRIVED AT THE SUPPRESSED RECEIPTS OF RS.21,76,725/-. THE ADDITION HAS BEEN CONFIRMED BY THE LD. CIT(A). 22. WE HAVE HEARD THE PARTIES. THE LD. COUNSEL SUBM ITS THAT NO INCRIMINATING EVIDENCE WAS FOUND AGAINST THE ASSESS EE IN THIS YEAR SHOWING THE SUPPRESSION OF THE OPERATIONAL RECEIPTS. THE A SSESSING OFFICER HAS MADE THE ADDITION BY PLACING RELIANCE ON THE EVIDENCE FO UND PERTAINING TO THE SUBSEQUENT YEARS.. HE SUBMITS THAT NO INCRIMINATIN G EVIDENCE IS FOUND TO SHOW UNACCOUNTED INVESTMENTS. HE VEHEMENTLY ASSAIL ED THE ORDERS OF THE AUTHORITIES BELOW BY STATING THAT IN THE SEARCH AND SEIZURE ASSESSMENT HOW THE ADDITION CAN BE MADE WHEN NO INCRIMINATING EVID ENCE IS FOUND. HE SUBMITS THAT IN THE MONTH OF MAY 2000, THE ASSESSEE HAD MET WITH THE MAJOR ACCIDENT. HE WAS NOT ACTIVE IN PROFESSION F OR SIX MONTHS AND HENCE THAT RESULTED IN LOWER PROFESSIONAL INCOME. THE AS SESSMENT MADE BY THE ASSESSING OFFICER BY ESTIMATING PROFESSIONAL RECEIP TS AT 20% IS AT VERY HIGHER SIDE AND THAT IS NOT JUSTIFIED ALSO. HE SUB MITS THAT THE ENTIRE ADDITION IS MADE BY THE ASSESSING OFFICER IN THE HANDS OF TH E ASSESSEE ONLY WHEN ADMITTEDLY PART OF THE PROFESSIONAL RECEIPTS BELONG TO HIS WIFE. WE HAVE ALSO HEARD THE LD. DR 23. IN THIS CASE, WE FIND THAT THE ASSESSING OFFICE R HAS PLACED RELIANCE ON THE FOLLOWING DECISIONS FOR ESTIMATION OF 20% RECEI PTS : 8 1. CIT VS. HM EUSFALLI HM ABDULALA 90 ITR 271 (SC) 2. CI T VS. DR. M.K. E MEMON 248 ITR 310 (BOMBAY) 3. RAJNIK & CO. VS. ACIT 251 ITR 561 HIGH COURT OF A.P. 24. IN THIS CASE, ADMITTEDLY EVEN IF NO SPECIFIC EV IDENCE IS FOUND BUT AS PER THE MODUS OPERANDI ADOPTED BY THE ASSESSEE IT IS PROVED THAT ASSESSEE WAS MAINTAINING TWO SETS OF BOOKS OF ACCOUNT. IT IS AL SO SEEN THAT ASSESSEE HAS ENTERED INTO CASH TRANSACTIONS WHICH WERE ADMITTED BY THE ASSESSEE ALSO WHICH WERE NOT RECORDED IN THE REGULAR BOOKS OF ACC OUNT. PROCEEDINGS UNDER INCOME TAX ACT ARE NOT CRIMINAL PROCEEDINGS WHEREBY STRICT BURDEN IS ON THE REVENUE TO PROVE BEYOND DOUBT. THE MODUS OPERANDI FOR SUPPRESSION OF INCOME IN THIS CASE SUPPORT THE CASE OF THE ASSESSI NG OFFICER THAT THE ASSESSEE WAS INDULGED INTO SUPPRESSION OF THE INCOM E. IT IS TRUE THAT THERE IS NO DIRECT EVIDENCE BUT ONCE THE MODUS OPERANDI IS ADMITTED BY THE ASSESSEE IT GOES AGAINST HIM. AT THE SAME TIME, 20% OF THE ESTIMATION OF THE SUPPRESSED PROFESSIONAL RECEIPTS IS AT VERY HIG H SIDE. WE, THEREFORE, RESTRICT THE SAME TO 10% FOLLOWING THE DECISION OF THE HONBLE HIGH COURT OF BOMBAY IN THE CASE OF CIT VS.DR. M.K.E. MEMON(SUPRA ) AND CIT VS. HM EUSFALLI HM ABDULALA (SUPRA). THE ASSESSING OFFICE R IS ACCORDINGLY DIRECTED TO DETERMINE THE INCOME ESTIMATING THE SUPPRESSED P ROFESSIONAL RECEIPTS AT 10% IN PLACE OF 20%. ACCORDINGLY THE GROUND TAKEN BY THE ASSESSEE IS PARTLY ALLOWED. IV. ITA NO.90/PN/2011 (ASST. YEAR 2002-03) : 25. THE ASSESSEE HAS TAKEN THE FOLLOWING EFFECTIVE GROUND : THE LD. CIT(APPEALS) ERRED IN CONFIRMING AND SUSTA INING THE ADDITION OF RS.14,30,225/- MADE BY THE AO AS SUPPRESSED PROFESS IONAL INCOME. 26. THE ASSESSEE HAS ALSO FILED AN APPLICATION SEEK ING THE LEAVE OF THE TRIBUNAL TO RAISE THE FOLLOWING ADDITIONAL GROUNDS : 1. WITHOUT PREJUDICE TO THE GROUNDS OF APPEAL RAIS ED IN A.YS. 1999-2000 TO 2001-02, THE ASSESSEE SUBMITS THAT IF AT ALL, TH E ADDITIONS MADE IN THOSE YEARS ARE SUSTAINED, THE INCOME THERE FROM WAS AVAI LABLE WITH THE ASSESSEE FOR MAKING PAYMENT OF RS.40 LAKHS TO SHRI CHANDUSHE TH REVANIKAR AND ACCORDINGLY, NO ADDITION WAS REQUIRED TO BE MADE OF RS. 40 LAKHS WHILE DETERMINING THE INCOME OF THE ASSESSEE FOR THIS YEA R. 2. THE ASSESSEE FURTHER SUBMITS THAT IF AT ALL, THE ADDITION ON ACCOUNT OF ESTIMATION OF INCOME IS SUSTAINED FOR THE PERIOD FR OM IST APRIL 2001 TO 30 TH JUNE 2001, THE SAID INCOME IS AVAILABLE FOR EXPLAIN ING THE AMOUNT OF RS.40 LAKHS PAID TO SHRI CHANDUSHETH REVANIKAR AND NO ADD ITION BE MADE ON THAT ACCOUNT. 9 27. WE HAVE HEARD THE PARTIES ON THE ADMISSION OF T HE ADDITIONAL GROUNDS. 28. LD. COUNSEL ARGUED THAT BOTH THE ADDITIONAL GRO UNDS ARE LEGAL GROUNDS AND THE GROUNDS RAISED ARE PURE QUESTIONS OF LAW. HE PLEADS THAT SAID GROUNDS MAY BE ADJUDICATED ON THE BASIS OF THE MATE RIAL AVAILABLE ON RECORD. THE LD. COUNSEL ALSO RELIED ON THE DECISION OF NATI ONAL THERMAL POWER COMPANY 229 ITR. WE HAVE ALSO HEARD THE LD. DR. 29. WE HAVE ANXIOUSLY CONSIDERED THE ADDITIONAL GRO UNDS RAISED BY THE ASSESSEE. WE FIND THAT BOTH THE GROUNDS ARE LEGAL GROUNDS AND CAN BE ADJUDICATED ON THE BASIS OF THE MATERIAL AVAILABLE BEFORE US. WE ACCORDINGLY ADMIT BOTH THE ADDITIONAL GROUNDS BY FOLLOWING THE PRINCIPLES LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF NATIONAL T HERMAL COMPANY LTD.(SUPRA). 30. IN THE ASST. YEAR 2002-03 THE ASSESSEE FILED RE TURN OF INCOME DECLARING THE TOTAL INCOME OF RS.76,53,769/- IN RESPONSE TO N OTICE ISSUED U/S.153A. 31. BEFORE US THE ASSESSEE IS CONTESTING THE FOLLOW ING TWO ADDITIONS SUSTAINED BY THE LD. CIT(A) : (I) ADDITION OF RS.14,30,225/- TOWARDS SUPPRESSION OF THE ALLEGED PROFESSIONAL INCOME AND (II) ADDITION OF RS.10,33,850/- TOWARDS SUPPRESSION OF THE INVESTMENT. 32. IN THE COURSE OF THE SEARCH, AN AGREEMENT WAS F OUND. IT WAS REVEALED THAT THE ASSESSEE PAID RS.40 LAKHS TO ONE SHRI CHAN DUSHETH RENAVIKAR ON 30-06-2001. THE ASSESSEE ADMITTED THAT THE AMOUNT PAID TO SHRI RENAVIKAR WAS NOT ACCOUNTED INTO REGULAR BOOKS OF ACCOUNT. T HE ASSESSEE TOOK A PLEA THAT ON THE DATE OF PAYMENT OF THE SAID AMOUNT TO S HRI RENAVIKAR, I.E.30-06- 2001, THE CASH BALANCE IN THE BOOKS OF ACCOUNT OF T HE ASSESSEE WAS TO THE EXTENT OF RS.10,22,850/- AND HENCE, THE SAID AMOUNT WAS UTILIZED FOR MAKING THE PAYMENT TO SHRI RENAVIKAR. THE ASSESSEE DEDUCT ED RS.10,22,850/- FROM THE AMOUNT OF RS.40 LAKHS WHICH WAS PAID TO SHRI RE NAVIKAR AND DECLARED THE BALANCE AMOUNT OF RS.29,77,150/- TOWARDS UNACCO UNTED INVESTMENT. THE ASSESSING OFFICER REJECTED THE STAND TAKEN BY T HE ASSESSEE AND HE MADE FURTHER ADDITION OF RS. 10,22,850/- WHICH WAS PART OF RS.40 LAKHS PAID TO SHRI RENAVIKAR. IN THIS YEAR THERE WAS CLEAR EVIDE NCE FOUND THAT THE ASSESSEE WAS INDULGED INTO SUPPRESSION OF PROFESSIO NAL RECEIPTS. THE DOCUMENTARY EVIDENCE IN FORM OF DIARIES WAS FOUND F OR THE PERIOD FROM 16- 08-2001 TO 29-03-2002 THAT WAS FOR THE 166 WORKING DAYS WHICH IS REFERRED TO PAGE 33 OF THE ASSESSMENT ORDER. THE ASSESSEE V OLUNTARILY OFFERED RS.24,45,510/- TOWARDS SUPPRESSION OF PROFESSIONAL RECEIPTS, I.E. OPERATIONAL RECEIPTS. ON THE BASIS OF THE INCRIMINATING EVIDEN CE FOUND SHOWING THE 10 CONCLUSIVE PROOF THAT ASSESSEE WAS INDULGED INTO SU PPRESSING THE RECEIPTS, THE ASSESSING OFFICER MADE FURTHER ADDITION OF RS.1 4,30,225/- OVER AND ABOVE THE AMOUNT DECLARED BY THE ASSESSEE. THE ADD ITION WAS CONFIRMED BY THE LD. CIT(A). 33. WE HAVE HEARD THE PARTIES. THE LD. COUNSEL SUBM ITS THAT THE ASSESSEE HAS ADMITTED THE UNACCOUNTED PAYMENT OF RS . 40 KAKHS TO SHRI RENAVIKAR BUT AS ON THE DATE OF PAYMENT TO SHRI RSV ANIKAR THE ASSESSEE HAD CASH BALANCE OF RS.10,22,850/- AND HENCE, IT IS TO BE PRESUMED THAT THE SAID CASH WAS UTILIZED FOR THE PURPOSE OF MAKING PAYMENT TO SHRI RENAVIKAR. HE SUBMITS THAT ASSESSEE HIMSELF VOLUNTARILY OFFERED R S.29,77,150/- OUT OF THE RS. 40 LAKHS WHICH WERE NOT RECORDED INTO REGULAR B OOKS OF ACCOUNT. HE SUBMITS THAT IN RESPECT OF THE TRANSACTION THAT SHR I DOKE WHICH ADDITION IS MADE IN THE ASST. YEARS 1999-2000 AND 2000-02 IN RE SPECT OF THE PLOT OF LAND AS THE DEAL WAS NOT MATERIALIZED AND HENCE TH E ENTIRE AMOUNT WAS RETURNED BY SHRI DOKE TO THE ASSESSEE. SAID FACT H AS BEEN CLARIFIED BY THE ASSESSEE IN HIS STATEMENT RECORDED U/S.132(4). HE SUBMITS THAT EVEN SHRI HARIDAS DOKE WAS ALSO EXAMINED BY THE ASSESSING OFF ICER ON OATH, WHO ALSO CONFIRMED THAT HE RETURNED THE AMOUNT TO THE ASSESS EE AS TRANSACTION WAS NOT MATERIALIZED. HE THEREFORE PLEADED THAT RS.25 LAKHS RETURNED BY SHRI DOKE FROM CASH AVAILABLE WITH ASSESSEE FOR MAKING P AYMENT TO SHRI RENAVIKAR AND HENCE, TO THAT EXTENT THE SET OFF OF THE AMOUNT MAY BE GIVEN. HE FURTHER SUBMITS THAT IN THE ASST. YEARS 2000-01 AND 2001-02 THE ASSESSING OFFICER HAS ESTIMATED SUPPRESSED SEPARATE RECEIPTS FROM THE OPERATIONS AND IN CASE THE ADDITION IN RESPECT OF P AYMENT MADE TO SHRI RENAVIKAR TO THE EXTENT OF RS.10,22,850/- IS CONFIR MED, THEN THE SAME AMOUNT AVAILABLE WITH THE ASSESSEE FOR THE ASST. YE AR 2001-02 AND MAY BE TREATED AS USED FOR MAKING PAYMENT TO SHRI RENAVIKA R. 34. ON THE FIRST ADDITIONAL GROUND THE LD. COUNSEL SUBMITS THAT AS IN THE PRECEDING YEAR THE SUPPRESSION OF THE INCOME IS EST IMATED THEN THE BENEFIT OF THE TELESCOPING MAY BE GIVEN IN THIS YEAR. IN R ESPECT OF THE SECOND ADDITIONAL GROUND THE LD. COUNSEL SUBMITS THAT AS N O EVIDENCE WAS FOUND FOR THE PERIOD FROM 01-04-2001 TO 30-06-2001 THE ESTIMA TION MADE BY THE ASSESSING OFFICER FOR MAKING THE ADDITION MAY BE DE LETED. 35. WE HAVE ALSO HEARD THE LD. DR. 36. SO FAR AS THE FIRST ADDITION OF RS.10,22850/- I S CONCERNED NOTHING HAS BEEN DEMONSTRATED BY THE ASSESSEE THAT HOW INFACT THAT WAS THE SURPLUS AMOUNT MAINTAINED BY THE ASSESSEE CONSIDERING HIS O THER TRANSACTIONS AND 11 EXPENDITURE. MERELY BECAUSE ON THE DATE OF TRANSAC TION THE BOOKS OF ACCOUNT REFLECTS THE SURPLUS BALANCE OF CASH OF RS. 10,22,850/-, THERE CANNOT BE DIRECT PRESUMPTION THAT THE ASSESSEE HAS MADE TH E INVESTMENT TO THAT EXTENT FROM THE AVAILABLE CASH BALANCE AS ADMITTEDL Y ASSESSEE HAS ALSO OTHER TRANSACTION. IT IS NOT THE CASE THAT THERE IS NO T RANSACTION AFTER 30-06-2001. ONCE THE TRANSACTION IS ADMITTED BY THE ASSESSEE, S O BURDEN IS ON THE ASSESSEE TO SUBSTANTIALLY PROVE THE SOURCE. WE FIN D NO MERIT IN THE FIRST CONTENTION. ACCORDINGLY THE SAME IS DISMISSED. 37. THE ALTERNATE CONTENTION OF THE ASSESSEE IS THA T AN AMOUNT PAID TO SHRI DOKE WAS RETURNED BY THEM TO THE EXTENT OF RS.5 LAK HS + RS.20 LAKHS AND THE SAME MAY BE DELETED. WE FIND THAT NO EVIDENCE IS PRODUCED BY THE ASSESSEE EXCEPT THE STATEMENT OF SHRI DOKE THAT THE AMOUNTS WERE RETURNED. PRESUMING THAT TRANSACTION WAS NOT MATER IALIZED AND AMOUNTS WERE RETURNED, BUT THERE IS NO SUPPORTING EVIDENCE TO SHOW THAT SHRI DOKE RETURNED THE AMOUNT ON OR BEFORE THE DATE OF THE TR ANSACTION WITH SHRI RENAVIKAR. THIS CONTENTION OF THE ASSESSEE IS ALSO DISMISSED AS NOT MAINTAINABLE. 38. NOW THE ALTERNATE CONTENTION OF THE ASSESSEE IS THAT ADDITIONS ARE MADE IN THE ASST. YEARS 2000-01 AND 2001-02 THE BEN EFIT OF SET OFF MAY BE GIVEN. 39. SO FAR AS ASST. YEAR 2000-01 IS CONCERNED, ADDI TION IS SUSTAINED TO THE EXTENT OF RS. 20 LAKHS WHICH WAS THE PAYMENT MADE B Y THE ASSESSEE TO SHRI DOKE. SO FAR AS THE ASST. YEAR 2001-02 IS CONCERNE D THE ESTIMATION OF THE SUPPRESSED PROFESSIONAL RECEIPTS IS RESTRICTED TO 1 0%. THERE CANNOT BE A PRESUMPTION CONSIDERING THE LONG GAP OF THE TRANSAC TION THAT THE ASSESSEE HAD MAINTAINED CASH WHICH WAS UTILIZED FOR MAKING T HE PAYMENT TO SHRI RENAVIKAR. WE, THEREFORE, DISMISS THE SAID ALTERNA TE CONTENTION OF THE ASSESSEE ALSO. 40. SO FAR AS THE ADDITION ON ACCOUNT OF THE SUPPRE SSED PROFESSIONAL RECEIPTS OF RS.14,30,225/- IS CONCERNED, ADMITTEDLY FOR THE SUBSTANTIAL PERIOD THE EVIDENCE WAS FOUND THAT ASSESSEE WAS MAI NTAINING PARALLEL RECORD SUPPRESSING THE PROFESSIONAL RECEIPTS. IT IS TRUE THAT THERE IS NO SPEIFIC EVIDENCE FOR THE PERIOD FROM 01-04-2001 TO 30-06-20 01 BUT WHEN THE ASSESSEE HIMSELF HAS ADMITTED THE MODUS OPERANDI THAT HE WAS NOT FULLY RECORDING THE RECEIPTS IN THE BOOKS OF ACCOUNT, WE, THEREFORE, ARE INCLINED TO CONFIRM THE ORDER OF THE ASSESSING OFFICER TO THE E XTENT THAT ASSESSEE MUST HAVE ALSO BEEN INDULGING IN SUPPRESSING THE RECEIPT S FOR THE PERIOD FROM 01- 04-2001 TO 15-08-2001. AT THE SAME TIME, AS THERE IS NO DIRECT EVIDENCE 12 BUT ONLY THE CIRCUMSTANTIAL EVIDENCE AGAINST THE AS SESSEE, WE SUSTAIN THE ADDITION TO 10% RELYING ON THE DECISION OF THE HON BLE HIGH COURT OF BOMBAY IN THE CASE OF CIT VS.M.K.E. MEMON (SUPRA) AND CIT VS. HM EUSFALLI HM ABDULALA (SUPRA). ACCORDINGLY THE ASSESSEE GETS PA RT RELIEF IN GROUND NO. 2. THE ORIGINAL GROUND NO.1 AS WELL AS FOR THE ADDITIO NAL GROUND NO. 1 BOTH ARE DISMISSED AND ORIGINAL GROUND NO. 2 IS PARTLY ALLOW ED. 41. SO FAR AS THE ADDITIONAL GROUND NO. 2 IS CONCER NED, THE PLEA OF THE ASSESSEE IS THAT TO THE EXTENT OF THE ESTIMATION OF THE SUPPRESSED INCOME FOR THE PERIOD FROM 01-04-2001 TO 30-06-2001 THE BENEFI T OF SET OFF MAY BE GIVEN, WE FIND FORCE IN THE PLEA OF THE ASSESSEE. ADMITTEDLY THE TRANSACTION IS ON 30-06-2001. HENCE, WE ALLOW THE ADDITIONAL G ROUND NO. 2 AND DIRECT THE ASSESSING OFFICER TO REDUCE 10% OF ADDITION SUS TAINED FOR THE PERIOD FROM 01-04-2001 TO 30-06-2001 FROM RS.10,22,850/-. ACCORDINGLY THE ADDITIONAL GROUND NO. 2 IS PARTLY ALLOWED. V. ITA NO.91/PN/2011 (ASST. YEAR 2003-04) : 42. THE ASSESSEE HAS TAKEN THE FOLLOWING EFFECTIV E GROUND : THE LD. CIT(APPEALS) ERRED IN CONFIRMING AND SUSTA INING THE ADDITION OF RS.12,69,412/- MADE BY THE AO AS SUPPRESSED PROFESS IONAL INCOME. 43. THE ASSESSEE IS CHALLENGING THE ADDITION OF RS. 12,96,412/- MADE BY THE ASSESSING OFFICER TOWARDS THE SUPPRESSED PROFES SIONAL INCOME. THE TOTAL OPERATION RECEIPTS SHOWN BY THE ASSESSEE AND HIS WI FE FOR THIS YEAR ARE RS.1,24,05,650/-. THE ASSESSING OFFICER HAS ESTIMA TED SUPPRESSED RECEIPTS AT 20% OF THE TOTAL OPERATION RECEIPTS AND ACCORDIN GLY MADE THE ADDITION. 44. THE ASSESSEE HAS ALREADY DECLARED AN AMOUNT OF RS.18,32,000/- IN THE RETURN FILED IN RESPONSE TO NOTICE U/S.153A. THE A SSESSING OFFICER HAS ESTIMATED THE SUPPRESSED RECEIPTS AT 20% OF THE TOT AL ACCOUNTED RECEIPTS. AS PER THE ASSESSING OFFICER THE ASSESSEE HAS SUPPR ESSED THE INCOME TO THE EXTENT OF RS.31,01,412/-. THE IDENTICAL ISSUE HAS BEEN DECIDED BY US IN THE ASST. YEAR 2001-02. FOLLOWING OUR REASONING, WE DI RECT THE ASSESSING OFFICER TO SUSTAIN THE ADDITION AT 10% OF THE TOTAL ACCOUNT ED OPERATION RECEIPTS IN PLACE OF 20%. ACCORDINGLY THE ASSESSEES GROUND IS PARTLY ALLOWED. 13 VI. ITA NO.92/PN/2011 (ASST. YEAR 2004-05) : 45. THE ASSESSEE HAS TAKEN THE FOLLOWING EFFECTIVE GROUND : THE LD. CIT(APPEALS) ERRED IN CONFIRMING AND SUSTA INING THE ADDITION OF RS.11,04,743/- MADE BY THE AO AS SUPPRESSED PROFESS IONAL INCOME. 46. IN THIS YEAR ALSO THE ASSESSEE IS CHALLENGING T HE ADDITION MADE BY THE ASSESSING OFFICER TO THE EXTENT OF RS.11,04,743/- T OWARDS SUPPRESSED PROFESSIONAL RECEIPTS. IN THIS YEAR IN THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE U/S.153A, THE ASSESSEE HAS DECLARED UNDIS CLOSED INCOME OF RS.40,68,215/- IN RESPECT OF THE PERIOD FOR WHICH T HE EVIDENCE HAS BEEN FOUND. DURING THE COURSE OF THE SEARCH INCRIMINATI NG EVIDENCE WAS FOUND AND SEIZED AGAINST THE ASSESSEE WHICH WAS IN THE NA TURE OF KACCHA REGISTER MAINTAINED BY THE ASSESSEE. IN RESPECT OF HIS PRO FESSIONAL OPERATION RECEIPTS FOR THE PERIOD OF 288 DAYS, I. E. FOR THE PERIOD FROM 13- 05-2003 TO 06-03-2004. THE ASSESSING OFFICER CONSI DERED THE ACCOUNTED RECEIPTS AS WELL AS RECEIPTS RECORDED IN THE KACCHA REGISTER WHICH ARE TO THE EXTENT OF 28.39%. ADMITTEDLY THE EVIDENCE FOR THE SUBSTANTIAL PERIOD OF 288 DAYS IN THE SECOND SET OF BOOKS WAS FOUND. THE SAME WAS OFFERED FOR TAX DECLARING THE INCOME OF RS.40,68,215/- IN THIS YEAR. THIS ISSUE IS ALSO IDENTICAL AS ADJUDICATED IN THE ASST. YEAR 2001-02. ADMITTEDLY IN THIS YEAR SUBSTANTIAL INCRIMINATING EVIDENCE WAS FOUND AGAINS T THE ASSESSEE. THE ASSESSING OFFICER HAS RELIED ON THE DECISION OF HON BLE HIGH COURT OF BOMBAY IN THE CASE OF CIT VS. M.K.E. MEMON (SUPRA) CIT VS. HM EUSFALLI HM ABDULALA (SUPRA). ONCE THE MODUS OPERANDI IS ADMIT TED BY THE ASSESSEE, IN OUR OPINION, NO GRIEVANCE SHOULD BE MADE THAT SOME INCOME IS ESTIMATED. IN OUR OPINION THE ESTIMATION MADE BY THE ASSESSING OFFICER NEED NO INTERFERENCE AS SAME IS REASONABLE. WE ACCORDINGLY CONFIRM THE ORDER OF THE LD. CIT(A) AND ACCORDINGLY THE ASSESSEES APPEAL IS DISMISSED. 47. IN THE RESULT, ASSESSEES APPEALS FOR ASST. YEA RS 1999-2000 & 2004-05 ARE DISMISSED AND APPEALS FOR ASST. YEARS 2000-01, 2001-02, 2002-03, 2003-04 ARE PARTLY ALLOWED. ORDER ACCORDINGLY. PRONOUNCED IN THE OPEN COURT ON THIS THE 24 TH DAY OF SEPTEMBER 2012. SD/- SD/- (R.K. PANDA) (R.S. P ADVEKAR) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE DATED: THE 24 TH SEPTEMBER 2012 SATISH 14 COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT(A), CENTRAL, PUNE 4. THE D.R, B PUNE BENCH 5. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY ITAT, PUNE BENCHES, PUNE