ITO, Ludhiana V. Sh. Munish Gupta, Ludhiana

ITA 881/CHANDI/2008

• Counselvise Citation: 88121514 RSA 2008
• Duration Of Justice: 6 year(s) 10 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2003-2004
• Appeal Filed On: 21-10-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VIVEK NANGIA
• Assessee Lawyers: ASHOK GOYAL; SUDHIR SEHGAL
• Keywords: Unexplained cash credit; Depreciation; Peak credit; Proportionate interest
• Section: 147; 68; 148; 10; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS.RANO JAIN, ACCOUNTANT MEMBER ITA NO. 881/CHD/2008 ASSESSMENT YEAR: 2003-04 THE ITO-II(4) VS SHRI MUNISH GUPTA, LUDHIANA. PROP. M/S GUPTA GAS SERVICE, 328/3, CHEEMA CHOWK, INDUSTRIAL AREA-A, LUDHIANA. PAN: ADYPG2620F & CO NO. 66/CHD/2008 IN ITA NO. 881/CHD/2008 ASSESSMENT YEAR: 2003-04 SHRI MUNISH GUPTA, VS THE ITO-II(4) PROP. M/S GUPTA GAS SERVICE, LUDHIANA. 328/3, CHEEMA CHOWK, INDUSTRIAL AREA-A, LUDHIANA. PAN: ADYPG2620F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VIVEK NANGIA RESPONDENT BY : SHRI SUDHIR SEHGAL & SHRI ASHOK GOYAL DATE OF HEARING : 08.09.2015 DATE OF PRONOUNCEMENT : 16.09.2015 O R D E R PER BHAVNESH SAINI,JM THE DEPARTMENTAL APPEAL AS WELL AS CROSS OBJECTION BY ASSESSEE ARE DIRECTED AGAINST THE ORDER OF LD. CIT(APPEALS)-I LUDHIANA DATED 06.08.2008 FOR ASSESS MENT YEAR 2003-04. 2 2. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PARTIES, PERUSED THE FINDINGS OF AUTHORITIES BELOW AND CONSIDERED THE MATERIAL AVAILABLE ON RECORD. 3. THE ASSESSEE IN THE CROSS OBJECTION ON GROUND NO S. 1 & 2 STATED THAT LD. CIT(APPEALS) RIGHTLY DELETED TH E ADDITIONS ON WHICH DEPARTMENTAL APPEAL HAS BEEN FI LED. 4. ON GROUND NO. 3 OF THE CROSS OBJECTION, ASSESSEE CHALLENGED THE RE-OPENING OF THE ASSESSMENT. HOWEV ER, LD. COUNSEL FOR THE ASSESSEE SEEKS PERMISSION TO WITHDR AW THE CROSS OBJECTION. THE CROSS OBJECTION IS, THEREFORE , DISMISSED AS WITHDRAWN. 5. THE DEPARTMENTAL APPEAL IS FILED ON THE FOLLOWIN G GROUNDS : 1. THAT THE ID. CIT(A) HAS ERRED IN HOLDING THAT A .O. WAS NOT JUSTIFIED TO MAKE FOLLOWING ADDITIONS ON THE ISSUES NOT SUBJECT MATTER OF REASONS RECORDED FOR RE-OPENING THE ASSESSMENT U/S 147/148 OF THE INCOME TAX ACT, 1961 A) ADDITION OF RS. 1,16,917/- ON ACCOUNT OF DISALLOWANCE OF PROPORTIONATE INTEREST B ) ADDITION OF RS. 75,163/- ON ACCOUNT OF P ETROL EXPENDITURE CAR EXPENDITURE, TELEPHONE EXPENDITURE AND DEPRECIATION 2 . THAT THE ID. CIT(A) HAS ERRED IN DELETING THE S UBSTANTIVE ADDITION AMOUNTING TO RS. 47,06,000/- MADE BY THE A.O. ON AC COUNT OF CASH DEPOSITS IN THE BANK ACCOUNT NO. 1050075280 WITH ST ATE BANK OF INDIA, MILLER GANJ, LUDHIANA. 6. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SING OFFICER MADE ADDITION OF RS. 1,16,917/- ON ACCOUNT OF DISALLOWANCE OF PROPORTIONATE INTEREST. THE ASSESSI NG OFFICER, ON PERUSAL OF THE BALANCE SHEET NOTED THAT 3 ASSESSEE HAD ADVANCED INTEREST FREE LOANS OF RS. 9,74,308/- TO RELATIVES AND WORKERS. THIS AMOUNT W AS OUTSTANDING AS ON 31.03.2003 WHEREAS NO INTEREST WA S CHARGED ON THESE LOANS. ON THE OTHER HAND, ASSESSE E WAS BORROWING FUNDS @ 12% PER ANNUM. THE ASSESSING OFFICER, THEREFORE, INFERRED THAT INTEREST BEARING BORROWED FUNDS WERE USED BY THE ASSESSEE FOR NON-BUSINESS PURPOSES IN THE FORM OF INTEREST FREE LOANS ADVANCE D. NO SATISFACTORY REPLY WAS SUBMITTED BEFORE ASSESSING O FFICER FOR MAKING THE DISALLOWANCE. THE ASSESSING OFFICER , ACCORDINGLY DISALLOWED INTEREST CALCULATED @ 12% OF RS. 9,74,308/- I.E. RS.1,16,917/- AND MADE THE ADDITION . IT WAS SUBMITTED BEFORE LD. CIT(APPEALS) THAT ABOVE AD DITION IS NOT SUSTAINABLE AS THE PROCEEDINGS UNDER SECTION 147/148 WERE INITIATED ON THE BASIS OF BANK ACCOUNT MAINTAINED WITH STATE BANK OF INDIA, MALERKOTLA, LUDHIANA ONLY. THEREFORE, ISSUE IS COVERED IN FAVO UR OF THE ASSESSEE IN THE CASE OF SHRI AMRINDER SINGH DHI LLON. 7. THE LD. CIT(APPEALS) ACCEPTED THE CONTENTION OF THE ASSESSEE BECAUSE THE ISSUE OF DISALLOWANCE OF INTER EST WAS NOT SUBJECT MATTER OF REASONS RECORDED FOR RE-OPENI NG OF THE ASSESSMENT AND ACCORDINGLY, DELETED THE ADDITIO N. SIMILARLY, ASSESSING OFFICER MADE ADDITION OF RS. 7 5,163/- ON ACCOUNT OF DISALLOWANCE OUT OF PETROL EXPENSES, CAR REPAIR EXPENSES, TELEPHONE EXPENSES AND DEPRECIATIO N TO THE TUNE OF RS. 75,163/-. THE ASSESSING OFFICER DISALLOWED 1/5 TH OF THESE EXPENSES CONSIDERING THE SAME FOR TRAVEL/NON BUSINESS PURPOSES. THE LD. CIT(APPE ALS), 4 ON THE SAME REASONING THAT THESE DISALLOWANCES DID NOT FOUND MENTION IN THE REASONS RECORDED FOR RE-OPENIN G OF THE ASSESSMENT, DELETED THE ADDITION. 8. THE LD. DR CONTENDED THAT EXPLANATION 3 TO SECTION 147 OF THE INCOME TAX ACT HAS BEEN INSERTED BY FINA NCE ACT NO. II OF 2009 W.E.F. 01.04.1989 WHICH READS AS UNDER: EXPLANATION 3.FOR THE PURPOSE OF ASSESSMENT OR RE ASSESSMENT UNDER THIS SECTION, THE ASSESSING OFFICER MAY ASSES S OR REASSESS THE INCOME IN RESPECT OF ANY ISSUE, WHICH HAS ESCAP ED ASSESSMENT, AND SUCH ISSUE COMES TO HIS NOTICE SUBSEQUENTLY IN THE COURSE OF THE PROCEEDINGS UNDER THIS SECTION, NOTWITHSTANDING THAT THE REASONS FOR SUCH ISSUE HAVE NOT BEEN INCLUDED IN THE REASONS RECORDED UNDER SUB-SECTION (2) OF SECTION 148.. 8(I) THE LD. DR, THEREFORE, SUBMITTED THAT LD. CIT( APPEALS) WAS NOT JUSTIFIED IN DELETING THE ADDITION. EVEN O N MERITS, HE HAS SUBMITTED THAT ADDITIONS WERE RIGHTLY MADE B Y THE ASSESSING OFFICER. 9. ON THE OTHER HAND, LD. COUNSEL FOR THE ASSESSEE ADMITTED THAT AFTER INSERTION OF EXPLANATION 3 TO S ECTION 147 OF THE INCOME TAX ACT W.E.F. 01.04.1989, THE FI NDINGS OF LD. CIT(APPEALS) WOULD NOT STAND. HE HAS NOT AR GUED ON MERIT WITH REGARD TO DELETION OF ADDITION ON ACCOUN T OF INTEREST, HOWEVER, SUBMITTED THAT ADDITION ON ACCOU NT OF DISALLOWANCE OF PETROL EXPENSES ETC. IS EXCESSIVE I N NATURE. 10. WE HAVE CONSIDERED RIVAL SUBMISSIONS. THE LD. CIT(APPEALS) DELETED BOTH THE ADDITIONS FINDING THA T THE ISSUE OF DISALLOWANCE OF INTEREST AND OTHER EXPENSE S WAS 5 NOT SUBJECTS MATTER OF REASONS RECORDED FOR RE-OPEN ING OF THE ASSESSMENT. HE WAS, THEREFORE, OF THE VIEW THA T SINCE THESE ISSUES WERE NOT PART OF THE REASONS RECORDED FOR RE- OPENING OF THE ASSESSMENT, THEREFORE, NO ADDITION C OULD BE MADE. THE ASSESSMENT YEAR UNDER APPEAL IS 2003-04 AND EXPLANATION 3 TO SECTION 147 HAVE BEEN INSERTED INT O ACT OF 2009 W.E.F. 01.04.1989. THEREFORE, EXPLANATION 3 CLEARLY APPLY TO THE FACTS AND CIRCUMSTANCES OF THE CASE. IN VIEW OF EXPLANATION 3 TO SECTION 147 OF INCOME T AX ACT, ASSESSING OFFICER IS EMPOWERED TO MAKE ADDITION ON OTHER ISSUES ALSO EVEN IF THOSE WERE NOT INCLUDED IN THE REASONS RECORDED UNDER SECTION 148(2) OF THE ACT. THE ORDE RS OF THE LD. CIT(APPEALS) ON THIS REASON IS SET ASIDE. HOWEVER, SINCE PARTIES HAVE ALSO ARGUED ON MERIT, THEREFORE, WE PROCEED TO DECIDE THE SAME ON MERITS. 11. WITH REGARD TO DISALLOWANCE OF INTEREST, NO SATISFACTORY REPLY WAS FILED BEFORE ASSESSING OFFIC ER. EVEN BEFORE US, LD. COUNSEL FOR THE ASSESSEE DID NOT SUB MIT ANY DETAIL AND DID NOT ARGUE THE SAME. THEREFORE, THE A DDITION OF RS.1,16,917/- SHALL HAVE TO BE MAINTAINED AS IS MADE BY THE ASSESSING OFFICER. THE ASSESSING OFFICER HA S GIVEN SPECIFIC FINDING THAT INTEREST BORROWED FUNDS WERE USED BY THE ASSESSEE FOR NON-BUSINESS PURPOSES IN THE FORM OF INTEREST FREE LOAN ADVANCED. WE, THEREFORE, CONFIR M THE ADDITION MADE BY ASSESSING OFFICER OF RS. 1,16,917/ -. THIS GROUND OF APPEAL IS ALLOWED. 6 12. AS REGARDS ADDITION OF RS. 75,163/- ON ACCOUNT OF DISALLOWANCE OUT OF VARIOUS EXPENSES IS CONCERNED, ASSESSING OFFICER HAS NOT GIVEN ANY SPECIFIC REASON FOR MAKING DISALLOWANCE. HOWEVER, ABOVE ADDITION WAS M ADE ON ACCOUNT OF THESE EXPENSES TO BE PERSONAL IN NATU RE. THE LD. COUNSEL FOR THE ASSESSEE DID NOT DISPUTE TH IS FINDING OF THE ASSESSING OFFICER, HOWEVER, CONSIDER ING THE NATURE OF BUSINESS OF ASSESSEE AND THE INCOME DECLA RED IN THE RETURN OF INCOME, WE RESTRICT THE ADDITION ON T HIS ISSUE TO RS. 25,000/- AS AGAINST RS. 75,163/-. WE HEREBY CLARIFY HERE THAT SINCE LD. CIT(APPEALS) DID NOT DE CIDE THIS ISSUE ON MERIT, THEREFORE, CONSIDERING IT TO BE PET TY IN NATURE, WE HAVE DECIDED THIS ISSUE AT THIS STAGE. THE ASSESSING OFFICER IS DIRECTED TO RESTRICT PART ADDI TION OF RS. 25,000/- ON THIS ISSUE. 13. IN THE RESULT, GROUND NO.1 OF APPEAL OF REVENUE IS PARTLY ALLOWED. 14. ON GROUND NO. 2, THE ASSESSING OFFICER MADE ADD ITION OF RS. 47,06,000/- ON ACCOUNT OF PEAK OF CASH DEPOS ITS MADE IN THE ACCOUNT NO. 1050075280 WITH STATE BANK OF INDIA, LUDHIANA. THE ASSESSING OFFICER DISCUSSED T HIS ISSUE IN THE ASSESSMENT ORDER. THE BANK ACCOUNT NO . 75280 ABOVE IN STATE BANK OF INDIA, LUDHIANA WAS NO TED TO BE IN THE NAME OF M/S MAYUR PLASTIC INDUSTRIES, DHURI. SHRI AJAY KUMAR WAS STATED TO BE THE PROPRIETOR OF THE SAID CONCERN M/S MAYUR PLASTIC INDUSTRIES, DHURI. FOR THE REASONS DISCUSSED IN DETAIL IN THE ASSESSMENT O RDER OF 7 THE ASSESSEE AND M/S MAYUR PLASTIC INDUSTRIES, DHUR I AND SHRI AJAY KUMAR FOR ASSESSMENT YEAR 2003-04, ASSESS ING OFFICER CONSIDERED THE PEAK CREDIT IN THE ABOVE MEN TIONED BANK ACCOUNT I.E. RS. 47,06,000/- AS UNEXPLAINED CA SH CREDIT OF THE ASSESSEE ON ACCOUNT OF DEPOSITS MADE ON 20.11.2002 AND 21.11.2002 AND ADDED THE SAME TO BE INCOME OF ASSESSEE ON SUBSTANTIVE BASIS. 15. THE ASSESSEE CHALLENGED THE ADDITION BEFORE LD. CIT(APPEALS) AND WRITTEN SUBMISSIONS OF THE ASSESSE E ARE INCORPORATED IN APPELLATE ORDER IN WHICH THE ASSESS EE BRIEFLY EXPLAINED THAT DURING THE COURSE OF ASSESSM ENT PROCEEDINGS, THE ASSESSEE WAS CONFRONTED WITH ONE B ANK ACCOUNT WITH STATE BANK OF INDIA, LUDHIANA IN THE N AME OF M/S MAYUR PLASTIC INDUSTRIES AND IT WAS SAID TO BE BELONGING TO THE ASSESSEE ON THE BASIS OF PAN NUMBE R FOR THE PURPOSE OF OPENING THAT BANK ACCOUNT. THE STAT EMENT OF ASSESSEE WAS RECORDED IN WHICH HE HAS STATED THA T HE HAD NO INTEREST IN THE SAID BANK ACCOUNT AND HE HAD NEVER OPERATED THAT BANK ACCOUNT. HIS PAN NUMBER HAS BEE N USED TO OPEN THE BANK ACCOUNT AND IN THIS REGARD IT WAS SUBMITTED THAT AFFIDAVIT WAS FILED BEFORE ASSESSING OFFICER AND STATEMENT OF THE ASSESSEE WAS ALSO RECORDED WHE REIN HE DENIED OWNERSHIP OF THE ABOVE BANK ACCOUNT AND A LSO STATED THAT HIS PAN HAS BEEN MISUSED. THE STATEMEN T OF SHRI AJAY KUMAR, PROPRIETEOR M/S MAYUR PLASTIC INDUSTRIES, DHURI WAS RECORDED AND HIS ASSESSMENT W AS ALSO RE-OPENED AND IN THE CASE OF SHRI AJAY KUMAR, 8 PROPRIETOR M/S MAYUR PLASTIC INDUSTRIES, DHURI, IT HAS BEEN HELD BY THE ASSESSING OFFICER THAT SHRI AJAY K UMAR WAS THE PERSON WHO WAS OPERATING THIS BANK ACCOUNT WITH STATE BANK OF INDIA, LUDHIANA AND THIS WAS CONFIRME D ON THE BASIS OF REPORT OF THE HANDWRITING EXPERT AND RECOGNITION BY THE OTHER STAFF MEMBERS OF THE BANK INCLUDING MANAGER, CASHIER AND OTHERS THAT SHRI AJA Y KUMAR HAD BEEN VISITING THE BANK QUITE OFTEN AND OPERATING THAT BANK ACCOUNT. IN THE CASE OF SHRI A JAY KUMAR, PROTECTIVE ADDITION WAS MADE IN WHICH IT WAS HELD THAT ACCOUNT, INFACT BELONG TO M/S MAYUR PLASTIC INDUSTRIES, DHURI I.E. FIRM AND NOT SHRI AJAY KUMAR IN HIS INDIVIDUAL CAPACITY. THEREFORE, ADDITION IN THE CA SE OF SHRI AJAY KUMAR HAS BEEN DELETED BY LD. CIT(APPEALS ) VIDE ORDER DATED 20.03.2008. IT WAS, THEREFORE, HELD TH AT THE ACCOUNT BELONGS TO M/S MAYUR PLASTIC INDUSTRIES, DH URI I.E. THE FIRM AND NO ADDITION IS LIABLE TO BE MADE IN THE CASE OF THE PRESENT ASSESSEE. 16. THE LD. CIT(APPEALS), CONSIDERING THE SUBMISSIO NS OF THE ASSESSEE, MATERIAL ON RECORD AND FOLLOWING THE DECISION IN THE CASE OF SHRI AJAY KUMAR DATED 20.03 .2008 AND ORDERS IN THE CASES OF OTHER FIRMS, DELETED THE ADDITION IN THE HANDS OF THE ASSESSEE AND ALLOWED T HE APPEAL OF THE ASSESSEE. THE FINDINGS OF LD. CIT(AP PEALS) AT PAGES 5, 6 AND 7 OF THE APPELLATE ORDER ARE REPRODU CED AS UNDER : I HAVE CAREFULLY CONSIDERED THE CONTENTION OF THE ID. COUNSEL AND PERUSED THE RELEVANT RECORD. 9 THE BANK ACCOUNT IN QUESTION I.E. 1050075 280 IN SBI, MILLER GANJ, LUDHIANA, CAME UP FOR DISCUSSION IN THE CASE OF M/S MAYUR PLASTIC INDUSTRIES, DHURI AND OF SH. AJAY KUMAR BOTH FOR TH E ASSESSMENT YEAR 2003- 04. ADDITION OF RS. 47,06,000/- ON ACCOUNT OF PEAK OF CASH DEPOSITS MADE IN THIS BANK ACCOUNT WAS MADE FOR THE REASONS DISCU SSED IN DETAIL IN RESPECTIVE ORDERS IN THE HANDS OF M/S MAYUR PLASTIC INDUSTRIES ON SUBSTANTIVE BASIS. ADDITION OF SIMILAR AMOUNT WAS ALSO MADE ON PROTECTIVE BASIS IN THE HANDS OF SHRI AJAY KUMAR. HOWEVER, IN THE CASE OF S H. AJAY KUMAR IN APPEAL NO: 357-IT/CIT(A)-II/06-07 VIDE ORDER DATED 20.3.2008, THE PROTECTIVE ADDITION OF RS. 47,06,000/- ON ACCOUNT O F PEAK DEPOSITS IN THE SAME BANK ACCOUNT WAS DELETED. THE ADDITION WAS DEL ETED AS ABOVE ON THE ,GROUND THAT SUBSTANTIVE ADDITION MADE IN RESPECT O F DEPOSITS IN THE SAME BANK ACCOUNT WERE CONFIRMED IN THE RESPECTIVE APPEL LATE ORDERS IN THE CASE OF M/S MAYUR PLASTIC INDUSTRIES, DHURI AND OTHER CONCE RNS. THE RELEVANT PART OF THE APPEAL ORDER DATED 20.3.2008 IN THE CAS E OF SHRI AJAY KUMAR IS REPRODUCED HEREUNDER FOR THE SAKE OF CONVE NIENCE :- '3. BRIEF FACTS OF THE CASE ARE THAT ON THE BASIS O F CERTAIN INFORMATION RECEIVED BY THE A.O. IT WAS FOUND THAT FOUR CONCERNS NAMELY M/S HINDUSTAN PLASTIC, M/S S.R. PLA STIC, M/S SHIVA PLASTIC AND M/S MAYUR PLASTIC INDUSTRIES FORM ED A GROUP TO MAKE CERTAIN PURCHASES FROM IPCL DIRECTLY OR THROUG H M/S ALPINE ENTERPRISES LTD. (AEL). MAJORITY OF THE PAYMENTS FO R THESE UNACCOUNTED PURCHASES WERE FOUND TO BE MADE THROUGH BANK ACCOUNT NO. 75280 OPENED IN THE NAME OF SHRI AJAY K UMAR SHOWN TO BE PROPRIETOR OF M/S MAYUR PLASTIC INDUSTRIES, M ALERKOTLA ROAD, DHURI WITH STATE BANK OF INDIA, MILLER GANJ, LUDHIANA. IN VIEW OF THE DETAILED DISCUSSIONS IN THE RESPECTIVE ORDERS PASSED IN THE CASES OF THESE FIRMS IT WAS HELD BY THE A.O. THAT THESE FOUR CONCERNS MADE PURCHASES OUTSIDE THE BOOKS OF A CCOUNT FROM IPCL AS MENTIONED ABOVE. THEREFORE, THE PAYMEN TS MADE FOR SUCH PURCHASES THROUGH THE BANK ACCOUNT NO. 752 80 OPENED IN THE NAME OF SHRI AJAY KUMAR WERE HELD TO BE FOR THE PURCHASES MADE BY THESE CONCERNS AND NECESSARY ADDITIONS ON T HIS ACCOUNT WERE MADE IN THEIR RESPECTIVE ASSESSMENT ORDERS. TH ESE ADDITIONS IN THE HANDS OF THE FOUR FIRMS WERE MADE BY THE A.O. ON SUBSTANTIVE BASIS ON ACCOUNT OF PEAK CREDIT OF PURCHASES AND ALSO ON ACCOUNT OF PROFIT ON SALES OF THE GOODS SO PURCHASED 10 AND WHICH WERE ALSO NOT ACCOUNTED FOR IN THEIR REGU LAR BOOKS OF ACCOUNTS RESPECTIVELY. 4. AS FAR AS THE CASE OF THE APPELL ANT IS CONCERNED, CONSIDERING THE CYCLE OF ROTATION FOR CASH DEPOSITS OF TWO DAYS AS TAKEN FOR ARRIVING AT THE PEAK OF CASH DEPOSITS IN THE CASES OF THE FOUR FIRMS THE A.O. WORKED OUT THE PEAK CREDIT IN RESPECT OF THE DEPOSITS MADE IN THE BANK ACCOUNT NO. 75280 OPENED IN THE NA ME OF SHRI AJAY KUMAR, THE APPELLANT. THE A.O. WORKED OUT SUCH PEAK CREDIT AT RS. 47,06,000/-. THIS WAS TAKEN TO BE BY HIM AS UNEXPLAINED CASH CREDIT OF THE APPELLANT ON ACCOUNT OF DEPOSITS MADE ON 20.11.2002 AND 21.11.2002 AND ADDED BACK TO THE INC OME OF THE APPELLANT ON 'PROTECTIVE BASIS' U/S 68 OF THE ACT. 5. IN THE APPEALS F ILED BY THE FIRMS NAMELY M/S S.R. PLASTICS, M/S HINDUSTAN PLASTIC AND M/S MAYUR PLASTIC INDUSTRIES, ADDITIONS MADE BY THE A.O. ON THE ABOVE BASIS HAVE BEEN UPHEL D IN THE ORDERS PASSED IN APPEAL NOS. 46/IT/CIT(A)/LDH /06-07 DATED 5.6.2007, 45/IT/LDH/ CIT(A)-II/LDH/06-07 DATED L 8 .5.2007 & NO.73/IT/CIT(A)-II/LDH/06-07 DATED 20.3.2008 RESPEC TIVELY. AS ADDITION IN RESPECT OF THE DEPOSITS IN THE SAME BAN K ACCOUNT NO.75280 HAVE BEEN MADE IN THE HANDS OF RESPECTIVE FIRMS AND THESE ADDITIONS HAVE BEEN CONFIRMED AS ABOVE HOLDING THAT THE DEPOSITS IN THIS BANK ACCOUNT WERE MADE ON BEHALF OF THESE FIRMS ONLY, THE PROTECTIVE ADDITION MADE FOR THE SAME DEPOSITS IN THE CASE OF THE APPELLANT HAS TO B E DELETED. 6. IT MAY BE MENTIONED HERE THAT IN THE ACCOUNT OPENIN G FORM FOR BANK ACCOUNT NO.75280 IN THE NAME OF THE A PPELLANT HE HAS BEEN SHOWN AS PROPRIETOR OF M/S MAYUR PLASTIC I NDUSTRIES, DHURI. HOWEVER, AS DISCUSSED IN DETAIL IN THE AS SESSMENT ORDERS AND THE APPELLATE ORDERS IN THE CASES OF THE RESPECTIVE FIRMS, THE UNACCOUNTED PURCHASES MADE THROUGH THIS BANK ACCOUNT WERE FOR M/S MAYUR PLASTIC INDUSTRIES. THE FIRM ALONG WITH OTHER THREE CONCERNS MENTIONED ABOVE. THE OFFICIALS OF THE IPCL HAVE STATED IN THE STATEMENTS RECORDED BY THE A.O. AS DISCUSSED IN THE ASSESSMENT ORDERS AND THE APPELLAT E ORDERS AS ABOVE, THAT THEY VISITED THE FACTORY PREMISES OF M/ S MAYUR PLASTIC INDUSTRIES, DHURI./ SIMILARLY SHRI KHUSHI RAM THROU GH WHOM THE 11 GOODS PURCHASED FROM IPCL WERE TRANSPORTED, AND OT HER OWNERS OF THE TRUCKS ETC. IN THEIR RESPECTIVE STAT EMENTS RECORDED BY THE A.O., WHICH ARE ALSO DISCUSSED IN T HESE ORDERS, GOODS ALLEGEDLY PURCHASED FROM IPCL WERE TR ANSPORTED TO THE FACTORY PREMISES OF M/S MAYUR PLASTIC INDUST RIES, THE FIRM ALONG WITH OTHER THREE CONCERNS MENTIONED ABOV E. IT IS ALSO SEEN THAT AT THE TIME OF OPENING THE BANK ACCOUNT A S ABOVE, THOUGH SHRI AJAY KUMAR HAS SHOWN HIMSELF TO BE THE PROPRIETOR OF M/S MAYUR PLASTIC INDUSTRIES, DHURI, IT WAS A CO PY OF RETURN OF INCOME FOR THE ASSESSMENT YEAR 2002-03 FILED WIT H ITO-IV(3), MALERKOTLA OF M/S MAYUR PLASTIC INDUSTRIES, THE FIR M INDICATING PAN-6025HX, WHICH WAS ATTACHED BY HIM WITH THE RELE VANT DOCUMENTS. 7. ALL THESE EVIDENCES CLEARLY SHOW THAT WHATEVER TRANSACTIONS WERE CARRIED OUT THROUGH THE BANK ACCO UNT OPENED IN THE NAME OF SHRI AJAY KUMAR AS ABOVE, WERE FOR M /S MAYUR PLASTIC INDUSTRIES, THE FIRM AND NOT SHRI AJAY KUMA R IN HIS INDIVIDUAL CAPACITY ALONG WITH THREE OTHER FIRMS ME NTIONED ABOVE. 8. IN VIEW OF THE ABOVE DISCUSSION THE PROTECTIVE ASSE SSMENT MADE IN THIS CASE IS VACATED. 9. FOR STATISTICAL PURPOSES, THE APPEAL IS TAKEN TO HA VE BEEN ALLOWED. IN VIEW OF THE ABOVE, AS THE ADDITION MADE ON ACCOU NT OF DEPOSIT IN THE SAME BANK ACCOUNT HAS ALREADY BEEN C ONFIRMED IN APPEALS IN THE CASES OF M/S MAYUR PLASTIC INDUSTRIE S, M/S S.R.PLASTIC INDUSTRIES, M/S HINDUSTAN PLASTIC AND M /S SHIVA PLASTIC INDUSTRIES ETC.. AND EVEN THE PROTECTIVE ADDITION MADE IN THE HANDS OF SHRI AJAY KUMAR HAS BEEN DELETED, THERE IS NO GROUN D FOR SUSTAINING THE ADDITION MADE ON ACCOUNT OF SAME BANK DEPOSITS IN THE HANDS OF THE APPELLANT. RATHER, THE ADDITION HAS BEEN MADE S UBSTANTIVE BASIS IN RESPECT OF THE SAME BANK DEPOSITS AT TWO PLACES- ONE IN THE HANDS OF THE APPELLANT AND SECOND IN THE HANDS OF THE FIR MS. THIS IS EVEN OTHERWISE NOT IN ORDER. THE ADDITION OF RS. 47,06,0 00/- MADE IN THE CASE OF THE APPELLANT IS, THEREFORE, DELETED. THESE GROUNDS ARE, THEREFORE, ALLOWED. 12 IN THE RESULT, APPEAL IS ALLOWED. 17. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PARTIES. THE LD. DR RELIED UPON ORDER OF THE ASSES SING OFFICER. HOWEVER, DURING THE COURSE OF ARGUMENTS, HE HAS SUBMITTED THAT NO APPEAL HAS BEEN FILED BEFORE TRIB UNAL AGAINST THE ORDER OF LD. CIT(APPEALS) DATED 20.03.2 008 IN THE CASE OF SHRI AJAY KUMAR AND ALSO STATED THAT NO APPEAL HAS BEEN FILED BEFORE HIGH COURT AGAINST THE ORDER OF TRIBUNAL DATED 27.02.2009 IN THE CASES OF M/S HINDUSTAN PLASTICS, M/S S.R. PLASTICS AND M/S MAYU R PLASTIC INDUSTRIES, DHURI. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE AUTHORITIES BELOW. HE HAS REFERRED TO STATEMENT OF SHRI AJAY KUMAR DAT ED 28.01.2004 IN WHICH HE HAS ADMITTED THAT THE ACCOUN T NO. 75280 WITH STATE BANK OF INDIA, LUDHIANA BELONGS TO HIM AND OPENED BY HIM. HE HAS FILED COPY OF ACCOUNT OP ENING FORM BY SHRI AJAY KUMAR IN THE NAME OF M/S MAYUR PL ASTIC INDUSTRIES WHICH IS SIGNED BY SHRI AJAY KUMAR. HE HAS ALSO REFERRED TO AFFIDAVIT OF SHRI AJAY KUMAR FOR O PENING OF THE BANK ACCOUNT IN QUESTION WHICH IS SUPPORTED BY HIS RATION CARD AND ACKNOWLEDGEMENT OF RETURN OF INCOME IN THE CASE OF THE FIRM M/S MAYUR PLASTIC INDUSTRIES A ND RETURN IS SIGNED BY SHRI AJAY KUMAR. COPY OF FORM NO. 60 IS ALSO FILED BY SHRI AJAY KUMAR FOR OPENING OF THE BANK ACCOUNT GIVING DECLARATION THAT HE DOES NOT HAVE AN Y PAN NUMBER. THE LD. COUNSEL FOR THE ASSESSEE ALSO REFE RRED TO ORDER OF THE LD. CIT(APPEALS) DATED 20.03.2008 IN T HE CASE 13 OF SHRI AJAY KUMAR C/O M/S MAYUR PLASTIC INDUSTRIES (SUPRA) DELETING THE ADDITION IN THE HANDS OF SHRI AJAY KUMAR ALSO IN WHICH IT WAS HELD THAT THE BANK ACCOU NT OPENED IN THE NAME OF SHRI AJAY KUMAR, AS ABOVE WE RE FOR M/S MAYUR PLASTIC INDUSTRIES FIRM AND NOT IN THE INDIVIDUAL CAPACITY OF SHRI AJAY KUMAR. HE HAS SUB MITTED THAT THE ORDER OF THE LD. CIT(APPEALS) DATED 20.03. 2008 HAS NOT BEEN CHALLENGED IN APPEAL BEFORE THE TRIBUN AL BY THE REVENUE DEPARTMENT. HE HAS ALSO REFERRED TO ASSESSMENT ORDER UNDER SECTION 143(3) DATED 28.12.2 006 PASSED IN THE CASE OF SHRI AJAY KUMAR IN WHICH THE DETAILS OF THE BANK ACCOUNT IN QUESTION HAVE BEEN NOTED AN D REFERENCE IS ALSO MADE TO STATEMENTS OF DY. MANAGER S OF THE BANK AND IN THEIR STATEMENT THEY HAVE CONFIRMED THAT ACCOUNT IN QUESTION WAS OPENED BY SHRI AJAY KUMAR A ND HE HAS SIGNED THE ACCOUNT OPENING FORM BEFORE THEM AND THAT CHEQUES HAVE BEEN DRAWN BY HIM ONLY ON THE ORD ER OF SHRI AJAY KUMAR. THE ASSESSING OFFICER HAS HELD TH AT IN THE CASES OF M/S HINDUSTAN PLASTICS, M/S S.R. PLAST ICS AND M/S SHIVA PLASTIC INDUSTRIES OF DHURI, ASSESSME NT ORDER UNDER SECTION 143(3) DATED 31.12.2006 HAVE BE EN PASSED IN WHICH IT WAS HELD THAT CASH DEPOSITED IN THE AFORESAID BANK HAS BEEN UTILIZED TOWARDS MAKING UNACCOUNTED PURCHASES OF RAW MATERIAL BY THE AFORES AID FIRMS AND SUBSTANTIVE ADDITIONS HAVE BEEN MADE IN T HEIR HANDS. THEREFORE, SIMILAR ADDITION WAS MADE IN THE CASE OF SHRI AJAY KUMAR ON PROTECTIVE BASIS. HE HAS ALS O FILED COPY OF THE ORDER OF ITAT CHANDIGARH BENCH DATED 14 27.02.2009 IN THE CASES OF M/S HINDUSTAN PLASTICS, M/S S.R. PLASTICS AND M/S MAYUR PLASTIC INDUSTRIES OF D HURI IN ITA NO. 743, 744 AND 586 OF 2008 FOR ASSESSMENT YEA R 2003-04 IN WHICH THE TRIBUNAL ALLOWED THEIR APPEALS . 17(I) THE LD. COUNSEL FOR THE ASSESSEE ALSO SU BMITTED THAT IN THESE CASES, DEPARTMENT DID NOT FILE ANY AP PEAL BEFORE THE HIGH COURT. THE LD. COUNSEL FOR THE ASS ESSEE ALSO SUBMITTED THAT IN THE CASE OF ASSESSEE, THE ASSESSMENT WAS REOPENED UNDER SECTION 148 OF THE IN COME TAX ACT AND IN THE REASONS, IT HAS BEEN MENTIONED T HAT ASSESSING OFFICER RECEIVED THE INFORMATION FROM ITO , MALERKOTLA DATED 29.06.2006 THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS OF SHRI AJAY KUMAR, THERE HA S BEEN A CASH DEPOSIT DURING ASSESSMENT YEAR UNDER AP PEAL IN ACCOUNT NO. 75280 AND SHRI AJAY KUMAR HAVING DEN IED THE OPENING OF THE SAID BANK ACCOUNT AND THAT PAN Q UOTED IN THAT ACCOUNT WAS OF THE ASSESSEE, THEREFORE, ASS ESSMENT WAS REOPENED. HE HAS, HOWEVER, SUBMITTED THAT THIS BANK ACCOUNT DID NOT BELONG TO THE ASSESSEE AND THE OWNE RSHIP LIES WITH SHRI AJAY KUMAR ONLY. HE HAS SUBMITTED T HAT REASONS GIVEN BY THE ASSESSING OFFICER WERE WHOLLY INCORRECT FOR MAKING ADDITION ON SUBSTANTIVE BASIS PARTICULARLY WHEN SUBSTANTIVE ADDITIONS MADE IN THE CASES OF THREE FIRMS HAVE ALREADY BEEN DELETED BY THE TRI BUNAL. THEREFORE, APPEAL HAS NO MERIT, THE SAME MAY BE DISMISSED. 15 18. WE HAVE HEARD THE RIVAL SUBMISSIONS. IT IS NOT IN DISPUTE THAT BANK ACCOUNT IN QUESTION WAS OPENED BY ASSESSEE SHRI AJAY KUMAR C/O M/S MAYUR PLASTIC INDUSTRIES, DHURI. THE ACCOUNT OPENING FORM IS FIL ED WHICH ALSO SUPPORT THE FACT THAT THIS ACCOUNT WAS O PENED BY SHRI AJAY KUMAR UNDER HIS SIGNATURES IN THE NAME OF M/S MAYUR PLASTIC INDUSTRIES. HE HAS FILED HIS AFF IDAVIT WITH BANK FOR OPENING OF THE ACCOUNT WHICH IS SUPPO RTED BY HIS RATION CARD AND COPY OF THE ACKNOWLEDGEMENT OF RETURN OF INCOME FILED IN THE CASE OF M/S MAYUR PLA STIC INDUSTRIES WHICH IS ALSO SIGNED BY HIM. HE HAS ALS O FILED DECLARATION WITH THE STATE BANK OF INDIA, LUDHIANA WITH REGARD TO THE PERSON NOT HAVING PAN. IN HIS STATE MENT DATED 28.01.2004, SHRI AJAY KUMAR ALSO ADMITTED THA T HE HAS OPENED THIS BANK ACCOUNT. WHEN THE ASSESSMENT WAS TAKEN UP IN THE CASE OF SHRI AJAY KUMAR, ASSESSING OFFICER PASSED THE ORDER UNDER SECTION 14393) DATED 28.12.2 006 IN WHICH ASSESSING OFFICER HAS MENTIONED ALL THE EN TRIES CONTAINED IN THE BANK ACCOUNT IN QUESTION AND ALSO REFERRED TO STATEMENTS OF DY. MANAGER OF THE CONCER NED BANK IN WHICH THEY HAVE CONFIRMED THAT THIS BANK AC COUNT IN QUESTION HAS BEEN OPENED BY SHRI AJAY KUMAR AND HE HAS SIGNED THE ACCOUNT OPENING FOR BEFORE THEM AND CHEQUES WERE ALSO PASSED BY THEM AFTER TALLYING THE SIGNATURES OF SHRI AJAY KUMAR. THE ASSESSING OFFIC ER, AFTER MAKING DETAILED INVESTIGATION ALSO NOTED THAT SALES OF MATERIAL PURCHASED FROM IPCL HAVE BEEN MADE IN C ASH AND SUCH CASH HAVE BEEN UTILIZED FOR DEPOSITING IN SUCH 16 ACCOUNTS. IT WAS ALSO NOTED THAT WHEN ASSESSMENTS HAVE BEEN FINALIZED FOR ASSESSMENT YEAR IN QUESTION IN T HE CASES OF M/S HINDUSTAN PLASTICS, M/S S.R. PLASTICS AND M/S MAYUR PLASTIC INDUSTRIES UNDER SECTION 143(3),I T HAS BEEN HELD THAT CASH DEPOSITED IN THE BANK ACCOUNT I N QUESTION HAVE BEEN UTILIZED TOWARDS MAKING UNACCOUN TED PURCHASE OF RAW MATERIAL BY THE ABOVE MENTIONED FIR MS AND SUBSTANTIVE ADDITION ON ACCOUNT OF PEAK CREDIT OF PURCHASES MADE BY THESE CONCERNS BY TAKING THE PAYM ENT CYCLE OF TWO DAYS IN VIEW OF THE PATTERN OF PAYMENT S HAS BEEN MADE IN THE CASES OF RESPECTIVE FIRMS. THEREFO RE, PROTECTIVE ASSESSMENT WAS MADE OF THE SAME AMOUNT O F RS. 47,06,000/- IN THE HANDS OF SHRI AJAY KUMAR. T HE ASSESSMENT ORDER IN THE CASE OF SHRI AJAY KUMAR WAS CHALLENGED BEFORE LD. CIT(APPEALS) AND VIDE ORDER D ATED 20.03.2008 (SUPRA) DELETED THE SIMILAR ADDITION BY HOLDING THAT WHATEVER TRANSACTIONS WERE CARRIED OUT THROUGH THE BANK ACCOUNT IN QUESTION OPENED IN THE NAME OF SHRI AJAY KUMAR WAS FOR M/S MAYUR PLASTIC INDUSTRIES, THE FIR M AND NOT SHRI AJAY KUMAR IN HIS INDIVIDUAL CAPACITY ALON GWITH THREE OTHER FIRMS MENTIONED ABOVE. THEREFORE, PROT ECTIVE ADDITION IN THE CASE OF SHRI AJAY KUMAR WAS ALSO DE LETED. ADMITTEDLY, THE ORDER OF THE LD. CIT(APPEALS) DATED 20.03.2008 WAS NOT CHALLENGED BEFORE THE TRIBUNAL B Y REVENUE. THEREFORE, THE FINDINGS OF THE LD. CIT(AP PEALS) AS REPRODUCED ABOVE CLEARLY SHOWS THAT BANK ACCOUNT IN QUESTION WAS OF M/S MAYUR PLASTIC INDUSTRIES I.E. T HE PARTNERSHIP FIRM. THE REVENUE DEPARTMENT ACCEPTED THE 17 FINDINGS OF LD. CIT(APPEALS) BY NOT FILING ANY APPE AL BEFORE THE TRIBUNAL. 18(I) WE MAY ALSO NOTE HERE THAT WHEN THE IDENTICAL MATTER IN THE CASES OF M/S HINDUSTAN PLASTICS, M/S S.R. PL ASTICS AND M/S MAYUR PLASTIC INDUSTRIES OF DHURI WAS TAKEN UP IN APPEAL BY ITAT CHANDIGARH BENCH, THREE APPEALS W ERE DECIDED FOR SAME ASSESSMENT YEAR IN APPEAL I.E. 200 3-04 VIDE ORDER DATED 27.02.2009. THE RELEVANT FINDINGS OF THE TRIBUNAL IN TWO PARTS ARE REPRODUCED AS UNDER : 23. WE HAVE CAREFULLY EXAMINED THE RIVAL CONTENTION ON THIS ASPECT. ONE FACT IS OOZING OUT FROM THAT THE BANK ACCOUNT IN QU ESTION IS THAT THE SAID BANK ACCOUNT IS IN THE NAME OF A PROPRIETARY CONCER N OF MR AJAY KUMAR BANSAL WHEREAS THE APPELLANT BEFORE US IS A PARTNER SHIP FIRM, THOUGH OF A SAME NAME. THE SECOND FEATURES WHICH IS/CLEAR FROM THE ENTIRE MATERIAL IS THAT IN SO FAR AS APPELLANTS ARE CONCERNED THERE IS NO MATERIAL, EVEN ALLEGATIONS BY THE ASSESSING OFFICER THAT ANY MONEY EITHER FROM THE BANK ACCOUNT NO. 75280 HAS BEEN RECEIVED BY THE APPELLAN TS OR THAT ANY MONEY FROM BANK ACCOUNT NO. 75280 HAS GONE TO THE BANK AC COUNTS OF THE APPELLANTS. THE THIRD FEATURES WHICH IS OOZING OUT IS THAT THERE IS NO PAYMENT FROM THE BANK ACCOUNT OF THE APPELLANT EITHER TO IP CL OR TO M/S ALPINE ENTERPRISES LIMITED. IN FACT, THE ONLY WAY TO ESTA BLISH THAT THE MONEY WHICH HAVE GONE FROM ACCOUNT NO. 75280 TO M/S ALPINE ENTE RPRISES LIMITED IS ATTRIBUTABLE TO THE APPELLANTS IS ON THE BASIS OF E STABLISHING CONNECTION BETWEEN THE BANK ACCOUNT NO. 75280 AND T HE APPELLANT. DUE TO THE ABOVE NOTED FEATURES, WE DO NOT FIND THA T SUCH NEXUS CAN BE ESTABLISHED. HOWEVER, THE ISSUE QUA THE APPELLANTS WAS AS TO WH ETHER THE APPELLANT FIRMS HAS PURCHASED ANY GOODS FROM IPCL. FOR SUCH A CONCLUSION, THERE IS NO COGENT EVIDENCE WITH REVENU E AUTHORITIES. THE 18 OBJECTIVE OF THE EXERCISE THAT WE HAVE CARRIED OUT IN THE AFORESAID PARAGRAPHS IS NOT TO IDENTIFY THE BUYER FOR THE MAN DATE OF THE TRIBUNAL IS ONLY TO ADDRESS THE CONTROVERSY BEFORE IT. THE CONT ROVERSY BEFORE US IS AS TO WHETHER ON FACTS AND CIRCUMSTANCES OF THE CAS E CAN IT BE SAID THAT THE APPELLANT FIRMS HAVE MADE PURCHASES FROM IPCL T HROUGH THE AEGIS OF M/S ALPINE ENTERPRISES LIMITED THE DEL CREDER AGENT OF IPCL. OUR INFERENCE IN ON THE BASIS OF THE AFORESAID DISCUSSI ONS IS THAT THE CASE MADE OUT BY THE ASSESSING OFFICER AGAINST THE APPEL LANT ASSESSEE IS NOT JUSTIFIED. HENCE THE ASSESSEE IS ALLOWED. SINCE THE FACTS ARE IDENTICAL IN ALL THE APPEALS BEFORE US, THEREFORE, OUR AFORESAID CONCLUSION WILL HOLD GOOD FOR THE IMPUGNED APPEALS. IN THE RESULT THESE APPEALS OF THE ASSESSEE ARE ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 27.02.2009. 19. THE ABOVE FINDINGS OF FACT RECORDED BY THE TRIB UNAL IN THE CASES OF THESE FIRMS AS IN ASSESSEE'S CASE ALSO SUBSTANTIVE ADDITION OF THE SIMILAR AMOUNT UNDER AP PEAL WAS MADE, HAVE BEEN DELETED BY THE TRIBUNAL. IN TH ESE FINDINGS ALSO, IT WAS HELD THAT THE BANK ACCOUNT IN QUESTION BELONG TO SHRI AJAY KUMAR. IT IS ADMITTED FACT THAT THE PROCEEDINGS IN THE CASE OF ASSESSEE WERE R EOPENED ON THE BASIS OF INFORMATION RECEIVED FROM ITO, MALE RKOTLA WHEN THE ASSESSMENT PROCEEDINGS IN THE CASE OF SHRI AJAY KUMAR WERE GOING ON. THUS, ASSESSING OFFICER ONLY ON THE BASIS OF FINDINGS GIVEN IN THE CASE OF SHRI AJAY KU MAR REOPENED THE ASSESSMENT. IN THE CONCLUSION OF THE ASSESSING OFFICER, ASSESSING OFFICER HAS GIVEN SEVE RAL REASONS FOR MAKING SUBSTANTIVE ADDITION OF THE SIMI LAR AMOUNT IN THE HANDS OF THE ASSESSEE. ONE OF THE REA SON WAS THAT AS PER REPORT OF THE DOCUMENT EXPERTS, THE PAY- 19 IN-SLIP WAS EITHER FILLED IN BY THE ASSESSEE OR BY THE PERSON WHO HAS FILLED THE BODY OF BANK ACCOUNT OPEN ING FORM AND THE PAN NUMBER OF ASSESSEE HAS BEEN QUOTED ON THIS BANK ACCOUNT. THE QUESTION WOULD BE WHETHER T HESE REASONS ARE SUFFICIENT TO HOLD THAT ASSESSEE WAS OW NER OF THE BANK ACCOUNT IN QUESTION. THE HANDWRITING EXPER T HAS NOT GIVEN ANY CONCLUSIVE REPORT AGAINST THE ASSESSE E. MERELY THE PAN NUMBER OF ASSESSEE WAS QUOTED ON OPE NING ACCOUNT FORM IN QUESTION IS NOT SUFFICIENT TO PUT L IABILITY UPON ASSESSEE OF HAVING THE BANK ACCOUNT IN HIS POW ER AND POSSESSION. FURTHER REASONS GIVEN WERE THAT DISTRIBUTORSHIP OF LPG OF ASSESSEE HAS BEEN TERMINA TED AND ASSESSEE DID NOT INFORM THE POLICE OR INCOME TA X DEPARTMENT OF MISUSE OF PAN, ARE NOT RELEVANT CRITE RIA AND COULD NOT BE SAID TO BE ADVERSE IN NATURE AGAINST T HE ASSESSEE. THUS, THERE IS NO SUFFICIENT MATERIAL AVA ILABLE ON RECORD TO PROVE THAT ASSESSEE OPENED THE BANK AC COUNT IN QUESTION OR WAS MAINTAINING THE SAME IN HIS INDI VIDUAL OR OTHER CAPACITY. NO SUFFICIENT EVIDENCE OR MATER IAL HAVE BEEN BROUGHT ON RECORD TO SHOW THAT ASSESSEE MADE UNACCOUNTED DEPOSITS IN THIS BANK ACCOUNT SO AS TO MAKE ADDITION UNDER SECTION 68 OF THE INCOME TAX ACT. T HE ASSESSEE, TIME AND AGAIN MADE A STATEMENT THAT HE H AS NOT OPENED THE BANK ACCOUNT IN QUESTION AND NEVER U SED THE SAME FOR ANY PURPOSES, THEN THE BURDEN WOULD BE UPON THE REVENUE TO PROVE THAT ASSESSEE WAS HAVING OWNERSHIP FOR THIS BANK ACCOUNT. HOWEVER, NO MATER IAL IS 20 PRODUCED ON RECORD TO PROVE SUCH A FACT AGAINST THE ASSESSEE. 19(I) WE MAY ADD HERE THAT SINCE IN THE CASE OF S HRI AJAY KUMAR, THE FINDING OF FACT HAS REACHED FINALITY BY NOT FILING DEPARTMENT APPEAL BEFORE THE TRIBUNAL, IN WH ICH THE LD. CIT(APPEALS) HELD THAT THE ABOVE BANK ACCOUNT I N QUESTION BELONG TO THE FIRM M/S MAYUR PLASTIC INDUS TRIES AND NOT IN THE INDIVIDUAL NAME OF SHRI AJAY KUMAR, WOULD CLEARLY PROVE THAT THERE IS NO BASIS FOR MAKING ADD ITION AGAINST THE ASSESSEE PARTICULARLY WHEN THE CASE OF ASSESSEE WAS REOPENED ONLY ON THE BASIS OF INFORMAT ION RECEIVED FROM THE CASE OF SHRI AJAY KUMAR. WHEN TH E REVENUE DEPARTMENT ACCEPTED THE FINDING OF FACT IN THE CASE OF SHRI AJAY KUMAR AND ADDITION HAS BEEN DELET ED, NOTHING SURVIVE ADVERSE IN NATURE AGAINST THE ASSES SEE. FURTHER IN THE CASES OF THREE FIRMS M/S HINDUSTAN PLASTICS ETC., TRIBUNAL DELETED THE ADDITION AND AL LOWED THEIR APPEALS VIDE ORDER DATED 2702.2009 AND REVENU E DEPARTMENT ALSO ALLOWED THIS ORDER TO BECAME FINAL WOULD ALSO PROVE THAT REVENUE HAS NO EVIDENCE TO CONNECT THE ASSESSEE WITH THE BANK DEPOSITS IN ACCOUNT NO. 7528 0 WITH STATE BANK OF INDIA LUDHIANA IN QUESTION. 20. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES, IT IS CLEAR THAT REVENUE HAS NO EVID ENCE AGAINST THE ASSESSEE TO CONNECT WITH THE OPENING OF THE BANK ACCOUNT IN QUESTION OR MADE DEPOSITS IN THIS B ANK ACCOUNT. THE CASE OF THE ASSESSING OFFICER IS WHOLL Y BASED 21 ON WRONG ASSUMPTIONS OF FACTS, SURMISES AND CONJECT URES. THE LD. CIT(APPEALS) WAS, THEREFORE, JUSTIFIED IN D ELETING THE ADDITION. 21. IN THE RESULT, DEPARTMENTAL APPEAL ON THIS GROU ND IS DISMISSED. 22. IN THE RESULT, DEPARTMENTAL APPEAL IS PARTLY AL LOWED AND CROSS OBJECTION OF THE ASSESSEE IS DISMISSED AS WITHDRAWN. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (RANO JAIN) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 16 TH SEPTEMBER,2015. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT CHANDIGARH