RAM SWAROOP MEENA, Jaipur V. JCIT, Jaipur

ITA 908/JPR/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 5560 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 27-11-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained investment; Gift; Depreciation; Income from undisclosed sources; Cost of acquisition; Reasonable cause; Corroborative evidences; Assessment record
• Section: 143(3); 131; 68; 69

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 HKKXPUN] YS[KK LNL; ,OA JH DQY HKKJR] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM VK;DJ VIHY LA-@ ITA NO. 908, 909, 629/JP/2013, 607, 608, 609 & 610/ JP/2015 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2004-05, 05-06, 10-11, 06-07, 07-08, 08-09 & 09-10 . SHRI RAM SWAROOP MEENA 855, AKARON KA RASTA, KISHANPOLE BAZAR, JAIPUR. CUKE VS. THE JCIT, CENTRAL CIRCLE-3, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ABYPM 3113 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 890/JP/2013. FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2005-06. THE ACIT, CENTRAL CIRCLE-3, JAIPUR. CUKE VS. SHRI RAM SWAROOP MEENA 855, AKARON KA RASTA, KISHANPOLE BAZAR, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ABYPM 3113 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NOS. 598/JP/2015 & 83/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2004-05 & 05-06. SHRI RAM KARAN MEENA THROUGH L/H SMT. KALYANI MEENA 855, AKARON KA RASTA, KISHANPOLE BAZAR, JAIPUR. CUKE VS. THE JCIT (OSD) CENTRAL CIRCLE-3, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AIAPM 9210 A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 206/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2007-08. SHRI DINESH MEENA 855, AKARON KA RASTA, KISHANPOLE BAZAR, JAIPUR. CUKE VS. THE JCIT (OSD) CENTRAL CIRCLE, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AIAPM 2315 E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT 2 FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MANISH AGARWAL (C.A) JKTLO DH VKSJ LS@ REVENUE BY : SMT. PRATIMA KAUSHIK ( CIT ) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 16.02.2017. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 28/02/2017. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THIS BUNCH OF 11 APPEALS OF DIFFERENT ASSESSEES ARE DIRECTED AGAINST THE SEPARATE ORDERS OF THE COMMISSIONER OF INCOME TAX ( A) DATED 10.09.2013, 19.09.2013, 14.05.2013, 27.04.2015, 05.03.2015, 01. 11.2013 AND 03.12.2015 BY THE ASSESSEE AND THE REVENUE RESPECTIVELY. IN ALL THESE APPEALS COMMON ISSUES ARE INVOLVED, THEREFORE, ALL THE APPEALS WERE TAKEN UP TOGETHER AND ARE BEING DISPOSED OF BY WAY OF CONSOLIDATED ORDER, FOR THE SAKE OF C ONVENIENCE AND BREVITY. 2. FIRST WE TAKE UP ASSESSEES APPEAL ITA NO. 908/J P/2013, PERTAINING TO THE ASSESSMENT YEAR 2004-05 WHICH IS AGAINST THE ORDER OF LD. CIT (A) WHEREIN THE ASSEESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEA L. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD.CIT (A) HAS GROSSLY ERRED IN UPHOLDING THE GROSS RECEIPTS OF RS . 3,16,190/- FROM HIRING AS UNACCOUNTED INCOME BY REJECTING VEHICLES HIRING BUSINESS AND THEREBY SUSTAINING AN ADDITION OF RS. 2,92,190/- (3,16,190- 24,000(INCOME ALREADY DECLARED ON ACCOUNT OF VEHICLES HIRING) AS INCOME F ROM OTHER SOURCES, ARBITRARILY WITHOUT CONSIDERING THE SUBMISSIONS MAD E AND EVIDENCES ADDUCED. HENCE THE ADDITION OF RS. 2,92,190/- DESE RVES TO BE DELETED, MORE PARTICULARLY WHEN SUCH INCOME WAS DULY DECLARE D IN REGULAR RETURN FILED U/S 139(1) AND NO ADVERSE EVIDENCE WAS FOUND AS A RESULT OF SEARCH LEADING TO BELIE THAT ASSESSEE WAS NOT ENGAGED IN V EHICLE HIRING BUSINESS. 1.1 THAT THE LD. CIT (A) HAS FURTHER ERRED IN SUSTAININ G THE DISALLOWANCE OF THE FOLLOWING EXPENSES CLAIMED OUT OF VEHICLE HIRING INCOME ARBITRARILY WITHOUT CONSIDERING THE G ENUINENESS OF THE CLAIM. 3 PARTICULARS AMOUNT DEPRECIATION 2,01,000.00 BANK CHARGES 60.00 INTEREST ON CAR LOAN 31,450.00 REPAIRING AND MAINTENANCE 5 ,680.00 SALARY 54, 000.00 TOTAL 2,92,190. 00 1.2 THAT THE LD. CIT (A) AS WELL AS THE LD. AO HAS FAIL ED TO APPRECIATED THE REPLY OF THE ASSESSEE IN QUESTION N O. 9 REPRODUCED BY THE AO IN HIS ORDER WHEREIN ASSESSEE HAS CATEGORICALLY MENTIONED ABOUT THE LOANS TAKEN ON SU CH VEHICLES. HENCE THE EXPENSES SO CLAIMED DESERVES TO BE ALLOWED AND INCOME BE CLASSIFIED AS EARNED FROM VEH ICLE HIRING BUSINESS. 1.3 THAT THE LD. CIT(A) HAS ERRED IN OBSERVING AT PAGE 6 OF HIS ORDER THAT THE ASSESSEE HAS NOT DECLARED INCOME FRO M HIRING OF VEHICLES IN REGULAR RETURN FILED U/S 139(1) BY WRON GLY PLACING RELIANCE ON RETURN OF INCOME FILED BY THE FATHER OF ASSESSEE SHRI NARAYAN LAL MEENA, THUS OBSERVATION OF LD. CIT(A) D ESERVES TO BE IGNORED AND EXCLUDED. 1.4 THAT THE LD. CIT(A) HAS FURTHER ERRED IN DRAWING AD VERSE INFERENCE FROM REPLY TO QUESTION NO. 2 OF THE STATE MENT OF THE ASSESSEE STATING THAT HIS TRADITIONAL BUSINESS IS M ANUFACTURING OF GAJAK AND NO REFERENCE WAS MADE TO THE BUSINESS OF PLYING OF TAXI, WHILE DOING SO LD. CIT (A) HAS IGNORED THE FACT THAT ASSESSEES FAMILY IS ENGAGED IN THIS BUSINESS SINCE LONG AND VEHICLE HIRING BUSINESS IS A SECONDRY BUSINESS AND WAS NOT THE MAIN BUSINESS ACTIVITY OF ASSESSEE AND IN SAID STAT EMENT ASSESSEE HAS NOT CATEGORICALLY DENIED ABOUT TAXI PL YING BUSINESS, THUS INCOME EARNED FROM VEHICLE HIRING BU SINESS DESERVE TO BE ACCEPTED. 2. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CA SE THE LD. CIT (A) HAS GROSSLY ERRED IN SUSTAINING AN ADDITION OF RS. 3,00 ,000/- U/S 68 OF THE INCOME TAX ACT, 1961BEING GIFT RECEIVED FROM HIS FA THER ON WHIMS AND FANCIES WITHOUT CONSIDERING THE EVIDENCES ADDUCED A ND IGNORED THE ACT THAT THE ASSESSEE HAS FURNISHED ALL PLAUSIBLE EVIDE NCES TO PROVE THE CREDITWORTHINESS AND GENUNINESS OF TRANSACTION, THU S THE ADDITION OF RS. 3 LACS DESERVES TO BE DELETED. 2.1 THAT THE LD. CIT(A) HAS ERRED IN PLACING RELIANCE O N REMAND REPORT OF THE AO STATING THAT SAID GIFT WAS RECEIVE D BY THE 4 ASSESSEE FROM HIS FATHER ON 13.08.2003 AND IN CASH BOOK FURNISHED BY THE ASSESSEE DURING THE COURSE OF ASSE SSMENT PROCEEDINGS FOR THE YEAR UNDER CONSIDERATION THE AS SESSEE HAS SURRENDERED THE SAID AMOUNT ON 30.05.2003 AS CASH R ECEIVED. WHILE DOING SO THE LD. CIT(A) IGNORED THE ACT THAT AS PER CASH BOOK THE ASSESSEE HAS SURRENDERED RS. 9.00 LACS ON 30.05.2003 ON ACCOUNT OF UNACCOUNTED INCOME FROM SA LE OF GAJAK INVESTED IN PURCHASE OF SHOP AND ON 13.08.200 3 THE ASSESSEE HAS RECEIVED CASH OF RS. 3.00 LACS FROM HI S FATHER, THUS SUCH THERE IS NO DISCREPANCY IN THE DATE OF RE CEIPT OF CASH IN THE BOOKS OF ACCOUNTS AND DATE ON WHICH THE GIFT S WAS MADE AS PER THE AFFIDAVITS FILED BY THE APPELLANT AND HI S BROTHERS, THUS OBSERVATION OF LD. CIT(A) DESERVES TO BE IGNOR ED AND GENUINENESS OF GIFT RECEIVED DESERVES TO BE ACCEPTE D. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT (A) HAS GROSSLY ERRED IN SUSTAINING AN ADDITION OF RS. 2,00 ,000/- U/S 69 OF THE INCOME TAX ACT, 1961 BEING INVESTMENT MADE IN SHARE S ON ASSUMPTION AND PRESUMPTIONS WITHOUT CONSIDERING THE EVIDENCES ADDUCED, THUS THE ADDITION OF RS. 2 LACS DESERVES TO BE DELETED. 3.1 THAT THE LD. CIT(A) HAS FURTHER ERRED IN IGNORING T HE FACT THAT THE BOOKS OF ACCOUNTS WERE TENDERED FOR VERIFICATIO N WHEREIN ALL THE PAYMENTS MADE HAVE BEEN DULY RECORDED AND B ACKED BY NECESSARY SOURCES, HENCE THE ADDITION OF RS. 2 LACS SO MADE DESERVES TO BE DELETED. 3.2 THAT THE LD. CIT (A) HAS FURTHER ERRED IN NOT ACCEP TING THE OPENING CASH IN HAND WHICH WAS DULY DECLARED IN THE RETURN OF INCOME FILED OR IMMEDIATELY PRECEDING ASSESSMENT YE ARS, THUS THE ADDITION OF RS. 2 LACS MADE TOWARD SUCH OPENING CASH BALANCE DESERVES TO BE DELETED. 4. THAT THE APPELLANT CRAVES THE RIGHT TO ADD, DELETE, AMEND OR ABANDON ANY OF THE GROUNDS OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF APPEAL. 3. BRIEFLY STATED THE FACTS ARE THAT A SEARCH WAS C ONDUCTED ON 18/3/2010 IN THE CASE OF M/S NARAYANAJI GAJAKWALE, JAIPUR TO WHICH T HE ASSESSEE BELONGS. SUBSEQUENTLY, THE ASSESSMENT WAS MADE UNDER SECTION 153A/143(3), 1961, VIDE ORDER DATED 23 RD DEC. 2011. WHILE FRAMING THE ASSESSMENT, THE ASSE SSING OFFICER MADE TWO ADDITION OF RS. 2,92,190/- AND 7,30,000/- TREATING THE INCOME FROM OTHER 5 SOURCES AND ON ACCOUNT OF UNEXPLAINED INVESTMENT. THUS, COMPUTED INCOME OF RS. 20,48,190/- AGAINST THE INCOME DECLARED BY THE ASSE SSEE OF RS. 10,26,000/-. THE ASSESSING OFFICER MADE ADDITION OF WHILE REJECTING THE CLAIM OF EXPENDITURE OF RS. 2,92,190/- FURTHER, THE ASSESSING OFFICER MADE ADD ITION ON ACCOUNT OF UNACCOUNTED INVESTMENT IN PURCHASE OF SHOP NO. 344, JOHRI BAZA R, JAIPUR OF RS. 7,30,000/-. AGGRIEVED BY THIS, THE ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A) WHO AFTER CONSIDERING THE SUBMISSION PARTLY ALLOWED THE APPEA L. HOWEVER, THE LD. CIT(A) OUT OF TWO ADDITIONS NAMELY RS. 2,92,190/- AND RS. 7,3 0,00/- CONFIRMED RS. 2,92,190/- AND OUT OF RS. 7,30,000/- CONFIRMED RS. 5,00,000/- . NOW, THE ASSESSEE HAS FILED FURTHER APPEALS TO THIS TRIBUNAL. 4. THE GROUND NO. 1 TO 1.4 ARE AGAINST THE ADDITION OF RS. 2,92,190/-. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSION AS MADE IN THE WRITTEN SUBMISSIONS. THE LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT THE AUTHORITIES BELOW FAILED TO APPRECIATE THE FACTS IN RIGHT PERSPECTIVE THAT THE ASSESSEE HAD DECLARED GROSS RECEIPT OF RS. 3,16,190/- AGAINST WHICH EXPEN SES OF RS. 2,92,190/- WERE CLAIMED AND NET INCOME OF RS. 24,000/- WAS DECLARED ON ACCOUNT OF VEHICLES RUNNING BUSINESS. HE SUBMITTED THAT ON PERUSAL OF DETAILS EXPANSES OF RS. 2,92,190/- IT IS EVIDENT THAT EXPENSES ARE IN THE NATURE OF DEPRECIA TION, SALARY AND EXPENSES OF RUNNING AND MAINTENANCE OF VEHICLES WHICH ARE MINI MUM EXPENSES INCURRED FOR RUNNING OF THE VEHICLES. HE SUBMITTED THAT EVEN IF IT IS PRESUMED THAT THE ALLEGATION OF ASSESSING OFFICER IS CORRECT AND SOURCE OF INCOM E IS DENIED THESE EXPANSES OF RS. 2,92,190/- CANNOT BE DISALLOWED AS OWNERSHIP OF THE SAID VEHICLE HAS NOT BEEN DOUBTED NEITHER GENUINENESS OR REASONABLENESS OF EX PENDITURE UNDER DISPUTE. IN FACT, THE ASSESSEE HAD NOT OFFERED ANY INCOME AGAIN ST THESE EXPENSES THE SAME 6 WOULD HAVE BEEN VERY WELL ALLOWABLE AS BUSINESS EXP ENSES AS VEHICLES HAVE BEEN USED FOR BUSINESS. THE AO HAD DISALLOWED THESE EXP ENDITURE, ON THE BASIS THAT THE SOURCE OF INCOME AS CLAIMED BY THE ASSESSEE WAS REJ ECTED. 4.1. ON THE CONTRARY, THE LD. DEPARTMENTAL REPRESEN TATIVE FOR THE ASSESSEE AND SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. 4.2. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED T HE MATERIAL AVAILABLE RECORD AND GONE THROUGH THE ORDER OF THE AUTHORITIES BELOW . THE CLAIM OF THE ASSESSEE IS THAT HE WAS ENGAGED IN THE BUSINESS OF PLYING VEHIC LES ON HIRING. ADMITTEDLY, THERE IS NO SUPPORTING EVIDENCE WHICH SUGGEST THAT THE AS SESSEE HAD CARRIED OUT THIS ACTIVITY. ANOTHER CONTENTION OF LD. COUNSEL FOR THE ASSESSEE IS THAT EVEN IF IT IS ASSUMED THAT THE VEHICLES WERE NOT USED FOR BUSINES S OF HIRING OF VEHICLES EVEN THEN THE EXPENDITURE AS CLAIMED IS ALLOWABLE AS THE VEHI CLES WERE USED FOR BUSINESS PURPOSES. 4.3. WE FIND THAT NO SUCH CLAIM WAS MADE BEFORE THE AUTHORITIES BELOW. HOWEVER, IT WAS INCUMBENT UPON THE ASSESSEE TO SUPPORT THIS CLAIM WITH SOME EVIDENCE. MERELY, STATING THAT THE VEHICLES WERE FOR BUSINESS PURPOSES, IN OUR VIEW, IT WOULD NOT BE SUFFICIENT TO ALLOW THE CLAIM OF THE ASSESSE E. THEREFORE, IN THE ABSENCE OF MATERIAL EVIDENCES, THE CLAIM OF THE ASSESSEE CAN N OT BE ALLOWED. THUS THESE GROUNDS OF ASSESSEES APPEAL ARE DISMISSED. 5. GROUND NO. 2 TO 2.1 IN RESPECT OF THE SUSTAINING AND ADDITION OF RS. 3 LAKHS UNDER SECTION 68 OF THE ACT. THE LD. COUNSEL FOR T HE ASSESSEE REITERATED THE SUBMISSION AS MADE IN THE WRITTEN SUBMISSIONS. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT DURING THE COURSE OF THE ASSESSMENT PROCEEDING THE ASSESSEE HAD CLAIMED GIFTS OF RS. 3 LAKH FROM HIS FATHER ON 13/8 /2003 WHICH WAS PAID TO CERTAIN 7 AGRICULTURISTS AS ADVANCE. THE ASSESSING OFFICER T REATED THE PAYMENT AS MADE FROM UNDISCLOSED SOURCE AND MADE ADDITION. HE SUBMITTED THAT DURING THE APPELLATE PROCEEDINGS THE ASSESSEE DULY SUBMITTED THE SUPPORT ING EVIDENCE WHICH WERE BRUSHED ASIDE BY THE LD. CIT(A). SAME COULD NOT BE FURNISHED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. AFTER OBTAINING THE REMAND REPORT THE LD. CIT(A) DID NOT ACCEPT EXPLANATION PROVIDED BY THE ASSESSEE AND CON FIRMED THE ADDITION. HE DREW OUR ATTENTION TO PAPER BOOK PAGE NOS. 49 TO 53, HE SUBMITTED THAT THE ASSESSEE RECEIVED RS. 3 LAKHS FROM HIS FATHER. HE SUBMITTED THAT THE GIFTS RECEIVED WAS IN THE KNOWLEDGE OF OTHER FAMILY MEMBERS, THUS NO FORMAL G IFTS DEED WAS EXECUTED AT THAT TIME. HE SUBMITTED THAT AS FOR CASH ON HAND THE A SSESSEE CLAIMED RS. 9 LAKHS ON ACCOUNT OF INCOME FROM SALE OF GAJAK, WHICH WAS INV ESTED IN PURCHASE ON 13/8/2003. THE ASSESSEE HAD RECEIVED CASH OF RS. 3 LAKHS FROM HIS FATHER WHICH WAS GIVEN AS ADVANCED TO VARIOUS AGRICULTURISTS HE SUBMITTED THAT THERE IS NO DISCREPANCY IN THE DATE OF RECEIPT ON CASH IN THE B OOKS OF ACCOUNTS AND THE DATE ON WHICH THE GIFTS WAS MADE AS PER AFFIDAVIT FILED BY THE APPELLANT AND HIS BROTHERS. HE SUBMITTED NO NEW FACT IS STATED IN THE REMAND REPOR T AND THE ALLEGATION AS MADE IN THE ASSESSMENT ORDER ARE MERELY PRODUCED. 5.1. ON THE CONTRARY, DEPARTMENTAL REPRESENTATIVE O PPOSED THE SUBMISSION AND SUBMITTED THAT THIS STORY OF GIFT IS AN AFTER THOUG HT. 5.2. WE HAVE HEARD THE RIVAL CONTENTION PERUSED TH E MATERIAL AVAILABLE RECORD AND GONE THROUGH THE ORDER OF THE AUTHORITIES BELOW. W E FIND THAT THE ASSESSEE HAD FURNISHED AFFIDAVIT FROM OTHER FAMILY MEMBERS PARTI CULARLY BROTHERS IN THE FORM OF AFFIDAVITS TO STATE THAT FATHER OF THE ASSESSEE HAD GIVEN A GIFT OF CASH ON RS. 3 LAKHS ON 13 TH AUG. 2003, THE AUTHORITY BELOW HAVE NOT BELIEVED T HIS STATEMENT ON OATH. IT 8 IS ALSO NOT THE CASE OF THE ASSESSING OFFICER THAT SHRI NARAYAN LAL MEENA FATHER OF THE ASSESSEE WAS NOT IN A POSITION TO GIVE SUCH GIFTS. THE ASSESSEE HAS ALSO PLACED ON RECORD RETURN OF INCOME FILED BY THE FATHER OF THE ASSESSEE WHICH DEMONSTRATE THAT FATHER OF THE ASSESSEE WAS HAVING SUFFICIENT SOUR CE OF INCOME SUFFICIENT. THEREFORE, THE ORDERS OF THE AUTHORITIES BELOW ARE SET ASIDE O N THIS ISSUE AND THE ASSESSING OFFICER IS DIRECTED TO DELETE THE ADDITION OF RS. 3 LAKHS. 6. GROUND NO. 3 TO 3.2 ARE AGAINST CONFIRMATION OF ADDITION OF RS. 2 LAKHS. THE LD. COUNSEL FOR THE ASSESSEE REITERATED HIS SUBMISS ION AS MADE IN THE WRITTEN SUBMISSIONS. THE LD. COUNSEL SUBMITTED THAT DURING THE COURSE OF ASSESSMENT AS WELL AS IN THE APPELLATE PROCEEDINGS IT WAS CLAIME D THAT THE SAID PAYMENT WAS MADE OUT OF OPENING CASH BALANCE. THE LD CIT(A) DID NOT ACCEPT THIS CLAIM ON THE GROUND THAT THE ASSESSEE WAS SHOWING A MEAGER INCOME. HE SUBMITTED THAT THIS OBSERVATIONS OF LD. CIT(A) IS NOT JUSTIFIED. AS THE LD. CIT(A) HAS ADMITTED THE ACT THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF GAJ AK AND IT IS CARRIED OUT ON CASH BASIS. 6.1. ON THE CONTRARY, THE LD. DEPARTMENTAL REPRESEN TATIVE OPPOSED THE SUBMISSIONS. 6.2. WE HAVE HEARD THE RIVAL CONTENTION, PERUSED TH E MATERIAL AVAILABLE RECORD. WE FIND THAT THE ASSESSEE HAS BEEN DECLARING INCOME AS PER EVIDENCE PLACED ON RECORD. THE ASSESSEE HAS BEEN DECLARING INCOME SIN CE THE ASSESSMENT YEAR 1999- 2000. THEREFORE, IN OUR VIEW THE LD. CIT (A) WAS N OT JUSTIFIED IN CONFIRMING THE ADDITION AND REJECTING THE CLAIM OF CASH ON HAND. 6.3. IN VIEW OF THE AFORESAID, WE HEREBY DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION. THIS GROUND OF THE ASSESSEES APPEAL IS ALLOWED. 9 7. GROUND NO. 4 IS GENERAL IN NATURE, NEEDS NO SEPA RATE ADJUDICATION. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN ITA NO. 908/JP/2013 IS PARTLY ALLOWED. ITA NO. 890/JP/2013 & ITA NO. 909/JP/2013: 9. NOW, WE TAKE UP CROSS APPEALS, THAT IS ITA NO. 890/JP/2013 AND ITA NO. 909/JP/2013 BY THE REVENUE AND ASSESSEE RESPECTIVEL Y. THESE APPEALS ARE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (A), CENTRA L, JAIPUR DATED 19.9.2013. FIRST WE TAKE UP ASSESSEES APPEAL IN ITA NO. 909/JP/2013 . THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEALS :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE LD. CIT (A) HAS GROSSLY ERRED IN UPHOLDING THE GROSS RECEIPTS OF RS . 4,29,927/- (CORRECT FIGURE 4,24,972/-) FROM HIRING OF VEHICLES AS UNACC OUNTED INCOME BY REJECTING VEHICLE HIRING BUSINESS AND THEREBY SUSTA INING AN ADDITION OF RS. 4,29,927/- AS INCOME FROM OTHER SOURCES, ARBITRARIL Y, THUS THE ADDITION OF RS. 4,29,927/- (CORRECT FIGURE 4,24,972/0] DESERVES TO BE DELETED. 1.1. THAT THE LD. CIT (A) HAS FURTHER ERRED IN SUSTAININ G THE DISALLOWANCE OF THE FOLLOWING EXPENSES CLAIMED OUT OF VEHICLE HIRIN G INCOME ARBITRARILY WITHOUT CONSIDERING THE GENUINENESS OF THE CLAIM. PARTICULARS AMOUNT DEPRECIATION 2,52,600 .00 BANK CHARGES 7 0.00 INTEREST ON CAR LOAN 58,430 .00 REPAIRING AND MAINTENANCE 4,950 .00 SALARY 60 ,000.00 CAR INSURANCE 48,,922.00 TOTAL : 4,24,972.00 1.2. THAT THE LD. CIT (A) AS WELL AS THE LD. AO HAS FAIL ED TO APPRECIATED THE REPLY OF THE ASSESSEE IN QUESTION NO. 9 REPRODUCED BY THE AO IN HIS 10 ORDER WHEREIN ASSESSEE HAS CATEGORICALLY MENTIONED ABOUT THE LOANS TAKEN ON SUCH VEHICLES. HENCE THE EXPENSES SO CLAIM ED DESERVES TO BE ALLOWED AND INCOME BE CLASSIFIED AS EARNED FROM VEH ICLE HIRING BUSINESS. 1.3. THAT THE LD. CIT (A) HAS FURTHER ERRED IN DRAWING A DVERSE INFERENCE FROM REPLY TO QUESTION NO. 2 OF THE STATEMENT OF TH E ASSESSEE STATING THAT HIS TRADITIONAL BUSINESS IS MANUFACTURING OF G AJAK AND NO REFERENCE WAS MADE TO THE BUSINESS OF PLYING OF TAXI, WHILE D OING SO LD. CIT (A) HAS IGNORED THE FACT THAT ASSESSEES FAMILY IS ENGA GED IN THIS BUSINESS SINCE LONG AND VEHICLE HIRING BUSINESS IS A SECONDA RY BUSINESS AND WAS NOT THE MAIN BUSINESS ACTIVITY OF ASSESSEE AND IN S AID STATEMENTS ASSESSEE HAS NOT CATEGORICALLY DENIED ABOUT TAXI P LYING BUSINESS, THUS INCOME EARNED FROM VEHICLE HIRING BUSINESS DESERVES TO BE ACCEPTED. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE LD. CIT (A) HAS GROSSLY ERRED IN CONFIRMING THE ADDITION OF RS. 71, 94,000/- ON ACCOUNT OF PROFIT ON SALE OF LAND IN ADDITION TO THE PROFIT OF RS. 12,06,000/- DECLARED BY ASSESSEE ARBITRARILY WITHOUT CONSIDERING THE SUB MISSIONS MADE AND EVIDENCES ADDUCED ON MERE ASSUMPTION AND PRESUMPTIO N, HENCE THE ADDITION OF RS. 71,94,000/- DESERVES TO BE DELETED. 2.1. THAT THE LD. CIT (A) HAS FURTHER ERRED IN HOLDING T HAT M/S. VASTU LAND AND BUILDLINE DEVELOPERS HAD PAID AMOUNT OF RS. 1.5 0 CRORES TO THE APPELLANT FOR PURCHASE OF LAND WHEN IN FACT FROM DO CUMENTS/EVIDENCES SUBMITTED BY THE LD. AO IN THE REMAND PROCEEDINGS I T IS CLEARLY ESTABLISHED THAT THE SAID FIRM HAS NEVER PURCHASED LAND FROM THE APPELLANT NOR HAD MADE ANY PAYMENT TO HIM AND THE F IRM HAS MADE THE PAYMENT OF RS. 1.50 CRORES TO THE KHATEDARS TOW ARDS THE PURCHASE OF LAND, THUS ADDITION OF RS. 71,94,000/- UPHOLD ON ACCOUNT O PROFIT ON SALE OF LAND IN THE HANDS OF APPELLANT DESERVES TO BE DELETED. 2.2. THAT THE LD. CIT (A) HAS FURTHER ERRED IN OBSERVING THAT THE ASSESSEE HAS RECEIVED THE PAYMENT FROM M/S. VASTU LAND AND B UILDLINE DEVELOPERS BY PLACING RELIANCE ON NOTARIZED DOCUMEN T SIGNED BY THE PARTNER OF M/S. VASTU LAND AND BUILDLINE DEVELOPERS ACCEPTING THAT THE PAYMENT OF RS. 1.50 CRORES WAS MADE TO THE BROTHER OF APPELLANT FOR THE SAME LAND, WHILE OBSERVING SO THE LD. CIT (A) H AS IGNORED THE FACT THAT AS PER SAID DOCUMENTS, PAYMENT OF LAND WAS MAD E TO THE KHATEDARS AND BROTHER OF THE ASSESSEE ACTED AS POWE R OF ATTORNEY HOLDER OF THE KHATEDARS AND FROM THIS DOCUMENT IT D OES NOT ESTABLISHED THAT THE APPELLANT WAS THE OWNER OF THE SAID LAND A ND HAS RECEIVED PAYMENT ON THE SALE OF SUCH LAND, THUS OBSERVATION OF THE LD. CIT (A) DESERVES TO BE IGNORED AND EXCLUDED AND THE RESULTA NT ADDITION DESERVES TO BE DELETED. 11 2.3. THAT THE LD. CIT (A) HAS ERRED IN IGNORING THE FACT THAT THE APPELLANT IN ORDER TO BUY PEACE AND TO AVOID PROLONGED LITIGATIO N DECLARED ADDITIONAL INCOME OF RS. 12,06,000/- AS INCOME FROM BUSINESS F ROM SALE OF LAND TO M/S. VASTU LAND AND BUILDLINE DEVELOPERS ON THE BASIS OF DOCUMENTS FOUND DURING THE COURSE OF SEARCH WHICH WERE HOLD A S UNAUTHENTIC BY THE LD. AO IN REMAND PROCEEDINGS AND ALSO DISCARDED BY LD. CIT (A), THEREFORE ADDITION UPHELD BY THE LD. CIT (A) DESERV ES TO BE DELETED. 2.4. THAT THE LD. CIT (A) HAS FURTHER ERRED IN OBSERVING THAT ASSESEE HAS MADE TOTAL PAYMENT OF RS. 66.00 LACS TO THE OWNER O F LAND AS NO LFURTHER EVIDENCE IS AVAILABLE BY IGNORING THE FACT THAT THE LAND OWNERS IN THE RECEIPTS GIVEN FOR RS. 66.00 LACS HAS CATEGO RICALLY ADMITTED THE BALANCE CONSIDERATION AS OUTSTANDING THUS SUCH OBSE RVATION DESERVES TO BE IGNORED AND EXCLUDED AND CONSEQUENT ADDITION OF RS. 71,94,000/- BASED ON SUCH BASELESS OBSERVATIONS DESERVES TO BE DELETED. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE LD. CIT (A) HAS GROSSLY ERRED IN SUSTAINING AN ADDITION OF RS. 2,50 ,000/- CLAIMED ON ACCOUNT OF VARIOUS EXPENSES INCURRED IN SALE OF LAN D WITHOUT APPRECIATING THE FACTS OF THE CASE. HENCE THE ADDITION OF RS. 2, 50,000/- SO SUSTAINED DESERVES TO BE DELETED. 4. THAT THE APPELLANT CRAVES THE RIGHT TO ADD, DELETE, AMEND OR ABANDON ANY OF THE GROUNDS OF APPEAL EITHER BEFORE OR AT THE TI ME OF HEARING OF APPEAL. 10. GROUNDS NO. 1 TO 1.3 RELATES TO ADDITION MADE I N RESPECT OF REJECTING CLAIM OF THE ASSESSE OF RS. 29,927/- BEING THE INCOME EARNED FROM PLYING OF VEHICLES. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSION S AS MADE IN THE WRITTEN SUBMISSIONS AND SUBMITTED THAT IDENTICAL GROUND WAS RAISED IN ITA NO. 908/JP/ 2013. 10.1. THE LD. DEPARTMENTAL REPRESENTATIVE HAS OPPOS ED THE SUBMISSIONS AND THE REPRESENTATIVES OF BOTH THE PARTIES ADOPTED THE SAM E ARGUMENT AS WERE MADE IN ITA NO. 908/JP/2013. 12 10.2. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUS ED THE MATERIAL AVAILABLE RECORDS. THE FACTS ARE IDENTICAL AS WERE MADE IN I TA NO. 908/JP/2013 WHEREBY WE HAVE DECIDED THE SIMILAR ISSUE BY HOLDING AS UNDER : WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE RECORD AND GONE THROUGH THE ORDER OF THE AUTHORITIE S BELOW. THE CLAIM OF THE ASSESSEE IS THAT HE WAS ENGAGED IN THE BUSINESS OF PLYING VEHICLES ON HIRING. ADMITTEDLY, THERE IS NO SUPPORTING EVIDENCE WHICH S UGGEST THAT THE ASSESSEE HAD CARRIED OUT THIS ACTIVITY. ANOTHER CONTENTION O F LD. COUNSEL FOR THE ASSESSEE IS THAT EVEN IF IT IS ASSUMED THAT THE VEH ICLES WERE NOT USED FOR BUSINESS OF HIRING OF VEHICLES EVEN THEN THE EXPEND ITURE AS CLAIMED IS ALLOWABLE AS THE VEHICLES WERE USED FOR BUSINESS PU RPOSES. WE FIND THAT NO SUCH CLAIM WAS MADE BEFORE THE AUTH ORITIES BELOW. HOWEVER, IT WAS INCUMBENT UPON THE ASSESSEE TO SUP PORT THIS CLAIM WITH SOME EVIDENCE. MERELY, STATING THAT THE VEHICLES W ERE FOR BUSINESS PURPOSES, IN OUR VIEW, IT WOULD NOT BE SUFFICIENT TO ALLOW TH E CLAIM OF THE ASSESSEE. THEREFORE, IN THE ABSENCE OF MATERIAL EVIDENCES, TH E CLAIM OF THE ASSESSEE CAN NOT BE ALLOWED. THUS THESE GROUNDS OF ASSESSE ES APPEAL ARE DISMISSED. TAKING A CONSISTENT VIEW, THIS GROUND OF ASSESSEES APPEAL IS DISMISSED. 11. GROUND NOS. 2 TO 2.4 IS AGAINST CONFIRMING THE ADDITION OF RS. 71,94,000/- AND PROFIT ON SALE OF LAND OF RS. 12,06,000/-. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSION AS MADE IN THE WRITTEN BRIEF. THE S UBMISSION OF THE ASSESSEE ARE THAT DURING THE YEAR UNDER APPEAL A RETURN OF INCOM E WAS FILED UNDER SECTION 153 A OF THE ACT WHEREIN ASSESSEE DECLARED AN ADDITIONAL INCOME OF RS. 12,06,00/-BEING THE PROFIT FROM THE SALE OF LAND. THE LD. COUNSEL SUBMITTED THAT DOCUMENTS OF 13 PURCHASE OF SALE WERE FOUND AND SEIZED DURING THE C OURSE OF SEARCH AS ANNEXURE A 25. HE SUBMITTED THAT DURING THE YEAR UNDER CONSIDE RATION THE ASSESSEE SOLD AN AGRICULTURE LAND TO M/S. VASTU LAND DEVELOPERS AND PVT. LTD. VIDE AGREEMENTS TO SALE DATED 8 TH AUG. 2004 FOR TOTAL CONSIDERATION OF RS. 1,50,00,00 0/- AND RECEIVED SALE CONSIDERATION ON VARIOUS DATED AS COPY OF THE SAME WAS ANNEXED A-25. THE SAID LAND WAS PURCHASED BY THE ASSESSEE FROM THE TWO AGR ICULTURISTS FOR A SUM OF RS. 1,35,00,000/- AND THE RELEVANT COPY OF THE PURCHASE D AGREEMENTS WERE ALSO SEIZED DURING THE COURSE OF SEARCH VIDE ANNEXURE A-25. I T WAS SUBMITTED THAT THE ASSESSEE HAD MADE THE PAYMENT OF COST OF LAND OUT O F PART SALE CONSIDERATION RECEIVED FROM BUYER M/S VASTU LAND AND DEVELOPERS P VT. LTD. ON VARIOUS DATES. THE ENTIRE TRANSACTION RESULTED INTO PROFIT OF RS. 12, 06,000/-. HE SUBMITTED THAT THE DATE WISE RECEIPT OF ADVANCE AND SUBSEQUENT PAYMENT OF K ASTKARS AGAINST PURCHASES OF SUBJECT LAND IS TABULATED IN THE WRITTEN SUBMISSION . HE DREW OUR ATTENTION TO PAGE NO. 4 OF THE WRITTEN SUBMISSIONS. HE SUBMITTED THA T IT IS PERTINENT TO NOTE THAT THE ADVANCE RECEIPTS OF RS. 1,24,00,000/- FROM M/S VAST U LAND AND BUILD LINE PVT. LTD. IS DULY RECORDED. HE SUBMITTED THAT THE CONTENTS O F THE SALE AGREEMENTS AND CASH RECEIPTS OF RS. 26,00,000/- HAVE BEEN REPRODUCED BY THE ASSESSING OFFICER AT PAGES 6 AND 7 OF THE ASSESSMENT ORDER. HE SUBMITTED THAT THE ASSESSING OFFICER MISCONSTRUED THE TERMS OF AGREEMENTS DATED 8/8/2004 . HE SUBMITTED THAT IN BOTH THE AGREEMENTS TO SALE ENTERED INTO THE KASTKARS AG RICULTURISTS NAMELY SHRI RAM PAL MEENA AND SHRI NARAYAN LAL MEENA DATED 13/10/2003 B OTH THE KASTKARS SOLD THEIR SHARE OF LAND TO THE ASSESSEE FOR SALE CONSIDERATIO N OF RS. 10 LAKHS PER BIGHA AND ADVANCE PAYMENT OF RS. 1 LAKH WAS ACCEPTED BY THEM, WHICH ALSO FINDS REFERENCE IN THE AGREEMENTS. HOWEVER, IN THE AGREEMENT OF SALE N O TIME PERIOD WAS MENTIONED 14 FOR PAYMENT OF BALANCE SALE CONSIDERATION AND IT WA S CLEARLY MENTION THAT WHEN THE FULFILL PAYMENT WAS MADE BY SHRI RAM SAWROOP MEENA TO THEM, THEY WILL TRANSFER THE SHARE OF OWNERSHIP RIGHTS IN THE LAND TO THE ASSES SEE. HE SUBMITTED THAT THE ASSESSING OFICER WITHOUT BRINGING ON RECORD AND ANY MATERIAL OR EVIDENCE OBSERVED THAT SHRI RAM SWAROOP MEENA PURCHASED SHARE OF AGRI CULTURAL LAND OF SHRI RAM PAL MEENA AND SHRI NARAYAN LAL MEENA IN THE MONTH OF OC T. 2003, WHEREAS M/S VASTU LAND AND BUILD LINE PVT. LTD. PAID FIRST INSTALLMEN T OF RS. 64 LAKHS TO SHRI RAM SWAROOP MEENA ON 7/7/2004 AS DISCLOSED IN AGREEMENT . HE SUBMITTED AS PER RECORDS THE RECEIPT MENTIONED AT SERIAL NOS. 3 AND 4 ENCLOSED AT ASSESSEEE PAPER BOOK PAGES NOS. 36 TO 37 OF RS.31 LAKHS AND 32 LAK HS RESPECTIVELY ISSUED BY THE ASSESSEE TO SHRI RAM PAL MEENA AND SHRI NARAYAN LAL MEENA RESPECTIVELY. HE SUBMITTED THAT IN THE SAID RECEIPT , THE ASSESSEE H AS ACCEPTED THE PAYMENT OF ABOVE AMOUNT OF BOTH THE KASTKARS. SINCE, NO PARTICULAR DATE WAS MENTIONED IN THE RECEIPT AND AS THE SAID RECEIPT WAS GIVEN ON STAMP OF RS. 1 00/- WHICH WAS PURCHASE ON 7/7/2004. IT IS THEREFORE, CAN BE PRESUMED THAT THE PAYMENT OF SECURE INSTALLMENT THAT IS RS. 30 LAKHS EACH TO BOTH THE SELLER WAS MA DE ON THE SAID DATE ONLY AND THIS DATE WAS ALSO COINCIDE WITH THE ADVANCE RECEIVED FR OM M/S VASTU LAND AND BUILD LINE PVT. LTD. HE SUBMITTED THAT IT WAS AGREED BY THE ASSESSEE THAT THE BALANCE AMOUNT WILL BE PAID UP TO 15/08/2004 WHICH PROVES THE FACT THAT THE ASSESSEE HAS NOT PAID THE FULL CONSIDERATION TO KASTKARS ON THE DATE OF RECEIPT. DURING THE APPELLATE PROCEEDINGS, ALL THE FACTS WERE NARRATED BEFORE THE LD. CIT (A) AND IT WAS ALSO CONTENTED IF THE ASSESSING OFFICER HAD ANY DO UBT ABOUT THE GENUINENESS OF THE CLAIM OF THE ASSESSEE HE COULD HAVE ISSUE SUMMONED UNDER SECTION 131 TO KASTKARS AND BUYERS COMPANY TO KNOW ACTUAL STATE OF TRANSACT ION. HE SUBMITTED THAT SUCH 15 REQUEST WAS ALSO MADE BY THE ASSESSEE DURING THE CO URSE OF ASSESSMENT PROCEEDINGS. HOWEVER, WITHOUT ACCEDING TO THE REQU EST OF THE ASSESSING OFFICER PROCEEDED TO MAKE ADDITIONS ON CONJECTURE AND SUMMA RIZE AND SUMMARILY REJECTED THE CLAIM OF THE ASSESSEE AND ALLEGED THAT THE PAYM ENT OF THE LAND UNDER CONSIDERATION WAS MADE TO THE KASTKARS BY THE SHRI RAM SWAROOP MEENA FROM HIS UNACCOUNTED SOURCE. HOWEVER, THE LD. CIT DIRECTED THE ASSESSING OFFICER FOR MAKING VERIFICATION BY CONDUCTING ENQUIRY AND FURNISHING REMAND REPORTS. THE ASSESSING OFFICER IN REMAND REPORT COMPLETELY CHANGED THE BA SIS ON WHICH THE ADDITION WAS MADE IN THE ASSESSMENT ORDER AND ALLEGED THAT THE A SSESSEE HAD NEVER SOLD ANY LAND TO M/S VASTU LAND AND BUILD LINE PVT. LTD. HE FURTHER SUBMITTED THAT IN THE SECOND REPORT, WHICH IS REPRODUCED AT PAGE NO. 21 TO 22 ORDER OF THE LD. CIT. THE ASSESSING OFFICER AFTER CATEGORICALLY ANALYZING HA S CONCLUDED THAT THE PAYMENT TO KASTKAR WERE MADE BY M/S VASTU LAND & BUILDLINE DEV ELOPERS AND NOT BY THE ASSESSEE, WHICH IS BASED ON THE LETTER FILED BY THE COMPANY TO THE ASSESSING OFFICER THAT IS ITO WARD 2(4) JAIPUR, WHO ACCEPTED THIS CON TENTION WHILE COMPLETING THE ASSESSMENT OF COMPANY. HE SUBMITTED THAT IT WAS SU BMITTED BEFORE THE LD. CIT(A), IF THIS CONTENTION OF THE ASSESSING OFFICER IS TAKE N AS CORRECT THEN IT CAN BE SAFELY CONCLUDED THAT THERE WAS NEITHER ANY SALE OF LAND T O M/S VASTU LAND & BUILDLINE DEVELOPERS NOR ANY PAYMENT WAS MADE TO THE KASTKAR BY THE ASSESSEE. HE SUBMITTED THAT IF THE LAND IS DIRECTLY PURCHASED FR OM M/S VASTU LAND & BUILDLINE DEVELOPERS QUESTION OF MAKING ADDITION IN THE HANDS OF ASSESSEE DOES NOT ARISE ON ACCOUNT OF UNEXPLAINED INVESTMENT ON PURCHASE OF SA ID LAND AND PROFIT THEIR OWN DOES NOT ARISE. HE FURTHER SUBMITTED THAT BY OBSE RVING CONTRADICTION IN THE FINDING OF THE ASSESSING OFFICER DURING THE ASSESSMENT PROC EEDINGS AND REMAND REPORT 16 PROCEEDINGS. THE LD. CIT(A) CALLED UPON ASSESSMEN T RECORDS. ON PERUSAL OF THE SAID RECORDS TWO ADDITIONAL DOCUMENTS WERE FOUND BY THE LD. CIT(A), WHICH WERE THOUGH PART OF ASSESSMENT RECORD, YET, WERE NOT ME NTION IN THE ASSESSMENT ORDER. HE SUBMITTED THAT ANNEXURE-F I.E. POWER OF ATTORNEY REGISTERED BY SUB- REGISTRAR SANGANER, FATHER OF RAMKARAN MEENA THAT IS BROTHER OF THE ASSESSEE REGISTERED ON 8/7/2004 HANDED OVER ALL THE RIGHTS WITH REGARD TO THE SAID PROPERTY TO HIM BY SHRI RAMPAL MEENA, SHRI NARAYAN LAL MEENA, ANNEXURE-G IS A SALE AGREEMENT BETWEEN M/S VASTU LAND & BUILDLINE DEVELOPERS DATED 6/9/200 4 WHEREIN IT HAS BEEN ADMITTED THAT THE SAID LAND HAS TO BE SOLD TO M/S VASTU LAND & BUILDLINE DEVELOPERS THROUGH ITS PARTNERS NAMELY SHRI RAGUVEER SINGH AND SHRI K ALYAN SINGH IN LIEU OF IT RS. 1.50 CRORES HAS BEEN RECEIVED BY SHRI RAMKARNA MEENA WHI CH IS ALSO NOT SIGNED BY THE BUYER AND UNILATERAL DOCUMENT SIGNED BY THE SHRI RA MKARN MEENA. THUS, AFTER CONSIDERING ALL THE EVIDENCE AVAILABLE ON RECORDS, THE LD. CIT(A) CONCLUDED THAT APPELLANT HAD MADE PAYMENTS OF RS. 66 LAKHS TO SHRI RAMPAL MEENA AND SHRI NARAYAN LAL MEENA FOR THEIR SHARE OF AGRICULTURAL P ROPERTY, OUT OF THE ADVANCE RECEIVED FROM THE COMPANY AND THE REMAINING AMOUNT OF RS. 71,94,000/- IS HELD AS AN UNEXPLAINED PAYMENT MADE BY THE ASSESSEE, OUT O F HIS UNDISCLOSED INCOME BY IGNORING THE PAPERS AVAILABLE IN THE SEIZED DOCUME NTS. HE SUBMITTED THAT THE LD. CIT(A) CONCLUDED THAT NO PAYMENT WAS MADE BY THE A SSESEE TO KASTKARS BEYOND RS. 66 LAKH. THE LD. CIT(A) HAD NO OBJECTION SO FAR AS TRANSITION OF SALE OF LAND BY THE ASSESSEE TO M/S VASTU LAND & BUILDLINE DEVELOPERS O F SALE CONSIDERATION IS CONCERNED WHICH IS CONTRARY TO SECOND REMAND REPOR T SUBMITTED BY THE ASSESSING OFFICER. HE SUBMITTED THAT FEW FACTS ARE WORTH CON SIDERATION PURCHASE OF LAND IS EVIDENCED BY IKRAR NAMA 13/10/2003 BETWEEN SHRI RAM PAL MEENA AND SHRI RAM 17 SWAROOP MEENA(ANNEXURE-C-1) (ASSESSESS PAPER BOOK P AGES 24 TO 29), AND THE IKRARNAMA DATED 13/10/2003 BETWEEN SHRI NARYANLAL M EENA AND SHRI RAM SWAROOP MEENA (ANNEXURE-C-2) (APB-30 TO 35). HE SUBMITTED T HAT ON PERUSAL OF THESE AGREEMENTS IT CAN BE SEEN THAT THE RIGHTS IN THE LA ND WOULD TRANSFER IN FAVOUR OF THE ASSESSEE ONLY AFTER FINAL PAYMENT IS MADE. THE FAC TS THAT ASSESSEE HAS PAID ENTIRE PURCHASE CONSIDERATION IS EVIDENT FROM THE AFFIDAVI T OF SHRI RAMPAL MEENA AND SHRI NARAYAN MEENA WHEREIN THEY HAVE ACKNOWLEDGED THAT N O AMOUNT REMAINED DUE ON THE PART OF THE ASSESSEE. HE SUBMITTED THAT ALL THE SE PAPERS WERE FOUND DURING THE COURSE OF SEARCH. HE SUBMITTED THAT THE ASSESSING OFFICER HAD OBSERVED THAT PURCHASE OF LAND TOOK PLACE ON 13/10/2003 WHEREAS M /S VASTU LAND & BUILDLINE DEVELOPERS PAID FIRST INSTALLMENT OF THE SALE CONSI DERATION ON 7/7/2004 AND THUS ARRIVED AT CONCLUSION THAT THE PAYMENTS WERE MADE BY THE ASSESSEE OUT OF UNEXPLAINED SOURCE. HE SUBMITTED THAT ASSESSING OF FICER HAS NOT DOUBTED THE AMOUNT PAID TO THE KASTKARS, AS STATED IN THE AGREE MENTS RATHER OBJECTED THE SOURCES OF PAYMENT. THE OBJECTION OF THE ASSESSING OFFICER WAS THAT THE PAYMENTS WERE MADE PRIOR TO RECEIPT OF SALE CONSIDERATION FR OM VASTU LAND & BUILDLINE DEVELOPERS. THE ASSESSEE AT THE TIME OF ENTERING INTO AGREEMENT PAID A SUM OF RS. 1 LAKH EACH, SOURCE OF WHICH HAS BEEN UNEXPLAINED W HILE DEALING WITH ASSESSMENT PROCEEDINGS FOR ASSESSMENT YEAR 2004-05. HE SUBMIT TED THAT IT IS CLEARLY MENTION THAT BALANCE PAYMENT WOULD BE MADE SUBSEQUENTLY AND ONLY ON FINAL PAYMENT ASSESSEE WOULD BE ENTITLED TO GET LAND TRANSFER IN HIS NAME OR HIS FAMILY MEMBERS NAME. THE LD. CIT(A) HAS ALSO ACCEPTED THE TRANSACT ION OF PURCHASE FROM KASTKARS AS GENUINE BY ALLOWING THE PART COST OF ACQUISITION BASED ON CERTAIN RECEIPTS ACKNOWLEDGING THE PAYMENT AND HAS COMPLETELY IGNORE D THE AFFIDAVITS OF THE 18 RAMPAL MEENA AND SHRI NAYARAN MEENA ACKNOWLEDGING THAT THEY HAD RECEIVED ENTIRE SALE CONSIDERATION AND NOTHING REMAINS DUE O N THE PART OF THE ASSESSEE. HE SUBMITTED THAT THESE AFFIDAVITS WERE ALSO PART OF S EIZED DOCUMENTS AND CAN NOT BE INFERRED, BEING AFTER THOUGHT, HE SUBMITTED THAT AL THOUGH NO SPECIFIC RECEIPTS AVAILABLE IN RESPECT OF BALANCE PAYMENT MADE TO KAS TKARS. THESE AFFIDAVITS VERY WELL PROVE THAT THE ENTIRE PAYMENT AS STATED IN IKRARNAM A HAS BEEN MADE TO THEM. THE LD. COUNSEL FOR THE ASSESSEE RELIED ON JUDGMENT OF THE HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF GLASS LINES EQUIPMENTS CO. LTD. VS. CIT, 253 ITR 454 (GUJ.). HE SUBMITTED THAT UNDER THESE FACTS STATED HEREIN BEFORE, THE ASSESSEE HAD DULY EXPLAINED THE SOURCE OF PAYMENT MADE TO THE KA STKARS FOR PURCHASE OF LAND WITH ALL POSSIBLE EVIDENCE. THUS, PROFIT ON SALE OF AGRI CULTURE LAND AT RS. 12 LAKHS WAS DECLARED BY THE ASSESSEE DESERVES TO BE ACCEPTED. 11.1. ON THE CONTRARY LD. DEPARTMENTAL REPRESENTATI VE OPPOSED THIS SUBMISSION AND SUPPORTED THE ORDERS OF THE ASSESSING OFFICER. 11.2. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELO W. THE ASSESSING OFFICER MADE ADDITION ON THE BASIS THAT THE PAYMENT OF THE SALE CONSIDERATION WAS MADE TO KASTKARS BY SHRI RAM SWAROOP MEENA FROM HIS UNACCOU NTED SOURCE MUCH BEFORE RECEIPT OF RS. 1.5 CRORES FROM M/S VASTU LAND & BU ILDLINE DEVEOPERS IN THE MONTH OF JULY TO OCT. 2004. THE SOURCE OF THIS INVESTMEN T REMAINED UNEXPLAINED OUT OF THE TOTAL UNACCOUNTED PAYMENT RS. 1,35,00,000/- A PAYME NT OF RS. 3 LAKHS AS ADVANCE HAS BEEN ADDED TO THE INCOME OF THE ASSESSEE AS AN UNEXPLAINED INVESTMENT IN THE ASSESSMENT YEAR 2004-05. THE BALANCE AMOUNT OF RS. 1,32,00,000/- WAS THUS ADDED TO THE INCOME OF ASSESSEE UNDER SECTION 69 O F THE ACT, 1961. HOWEVER, THE 19 LD. CIT (A) REDUCED THIS ADDITION ON THE BASIS THAT ALL THE EVIDENCES AVAILABLE ON RECORD BY WAY OF SUBMISSIONS MADE AND DOCUMENTS WHA T EMERGES THE FACTS THAT DURING THE COURSE OF SEARCH EVIDENCES WAS FOUND THA T THE ASSESSEE MADE PAYMENTS TO SHRI RAMPAL MEENA AND SHRI NARAYANLAL MEENA AS PER THIS THE ASSESSEE MADE RS. 1 LAKHS EACH TO SHRI RAMPAL MEENA AND SHRI NARAYAN MEENA 13/10/2003 AND RS. 32 LAKHS EACH ON 7/7/2004. THUS, THE LD. CIT(A) HELD THAT IN THE ABSENCE OF ANY EVIDENCE OF PAYMENT HAVING BEEN MADE TO THIS KASTKA RS, OVER AND ABOVE RS. 66 LAKHS THIS WAS TO BE TAKEN FOR THE FINAL PURCHASE A MOUNT PAID TO THE KASTKARS. THE CONTENTION OF THE ASSESSEE IS THAT , THAT THE LD. C IT(A) FAILED TO APPRECIATE THE FACTS IN RIGHT PERSPECTIVE AND CONSTRUED THE DOCUMENTS CO RRECTLY WHICH WERE RECOVERED DURING THE COURSE OF SEARCH. UNDISPUTED FACTS THAT EMERGES FROM THE RECORDS THAT THE TRANSACTION RELATES TO THE SAME LAND WHICH THE ASSESSEE IS CLAIMING TO HAVE PURCHASED ON BEHALF OF M/S VASTU LAND & BUILDLINE P VT. LTD. AND PAYMENTS REGARDING SALE CONSIDERATION OF THE SAME WAS MADE BY THE ASSE SSEE. THE CLAIM OF THE ASSESSEE IS THAT THIS PAYMENTS WERE RECEIVED FROM M /S VASTU LAND AND BUILDLINE PVT. LTD. THE ASSESSING OFFICER IN THE REMAND REPORT STA TED THAT THE PAYMENT TO THE KASTKARS WERE MADE DIRECTLY BY THE M/S VASTU LAND & BUILDLINE DEVELOPERS PVT. LTD AND BELIEVED THE VERSION OF M/S VASTU LAND & BUILDL INE DEVELOPERS PVT. LTD. WE FIND THAT THERE ARE SUFFICIENT EVIDENCES ON RECORD WHICH WERE RECOVERED DURING THE SEARCH OPERATION BY THE REVENUE, DESCRIBES THE TRANSACTION RELATED TO THE SAME LAND HOWEVER, THE DOCUMENTS SO RECOVERED ARE NOT BELIEV ED BY THE ASSESSING OFFICER. WE ARE UNABLE TO UNDERSTAND AS WHY THE ASSESSEE WOU LD MAKE PAYMENT OF THE SAME LAND TO THE KASTKARS AND THE KASTKARS WOULD EXECUTE THE SALES DEEDS IN FAVOUR OF THE COMPANY NAMELY M/S VASTU LAND & BUILDLINE DEVELOPER S PVT. LTD. THE LD. CIT(A) 20 HAS CONSIDERED PART DOCUMENTS AS TRUE AND THE REST OF THE DOCUMENTS AS UNTRUE. WE FIND THAT BOTH THE AUTHORITIES HAVE FAILED TO D ECIDE THE ISSUE IN RIGHT PERSPECTIVE. THE ASSESSING OFFICER HAS NOT CONFRONTED THE ASSESS EE WITH THE LETTER RECEIVED FROM THE COMPANY. BY NO STRETCH OF IMAGINATION IT CAN BE INFERRED THAT THE KASTKARS WOULD RECEIVED SALE CONSIDERATION FOR THE SAME LAND FROM TWO DIFFERENT PERSONS. 11.3. UNDER THESE FACTS, WE ARE OF THE CONSIDERED V IEW THAT THE ISSUE REQUIRES FRESH CONSIDERATION BY THE ASSESSING OFFICER ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD. HE WOULD ALSO BE FREE TO MAKE FURTHER ENQUI RY FROM KASTKARS AND M/S VASTU LAND AND BUILDLINE DEVELOPERS PVT. LTD. AND THE ASS ESSEE WOULD BE GIVEN SUFFICIENT OPPORTUNITY TO REBUT THE SAME . THIS GROUND OF THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 12. NOW, WE TAKE UP GROUND NO. 3 AS WE HAVE ALREADY SET ASIDE THE ISSUE RELATED TO ADDITION ON ACCOUNT OF TRANSACTION OF LAND TO TH E FILE OF THE ASSESSING OFFICER FOR AFRESH DECISION. THIS ISSUE IS ALSO RESTORED TO TH E FILE OF THE ASSESSING OFFICER FOR DECISION AFRESH. 13. GROUND NO. 4 IS GENERAL IN NATURE NEEDS NO SEPA RATE ADJUDICATION. 14. IN THE RESULT, ITA NO. 909/JP/2013 IS PARTLY AL LOWED FOR STATISTICAL PURPOSES. ITA NO. 890/JP/2013 15. NOW, WE TAKE UP THE REVENUES APPEAL IN ITA NO. 890/JP/2013. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD. CIT (A), CENTRAL, JAIPUR HAS ERRED IN DELETING THE ADDI TION OF RS. 66,00,000/- OUT OF RS. 1,32,00,000/- MADE BY AO U/S 69 OF THE IT ACT, FOR UNACCOUNTED PAYMENT FOR PURCHASE OF LAND. 21 2. THE APPELLANT CRAVES THE RIGHT TO AMEND ALTER OR ADD TO ANY OF THE GROUNDS OF APPEAL GIVEN ABOVE. 16. THE ONLY EFFECTIVE GROUND IS AGAINST DELETION O F ADDITION OF RS. 66 LAKHS OUT OF RS. 1,32,00,000/-. THE RESPECTIVE REPRESENTATIVES OF THE PARTIES HAVE ADOPTED THE ARGUMENT AS WERE MADE IN RESPECT OF GROUND NO. 2 TO 3 IN ITA 909/JP/2013. WE HAVE DECIDED THIS ISSUE IN PART AS UNDER: WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE M ATERIAL AVAILABLE RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. THE ASSESSING OFFICER MADE ADDITION ON THE BASIS THAT T HE PAYMENT OF THE LAND IN CONSIDERATION WAS MADE TO KASTKARS BY SHRI RAM SWAROOP MEENA FROM HIS UNACCOUNTED SOURCE MUCH BEFORE RECEI PT OF RS. 1.5 CRORES FROM M/S VASTU LAND & BUILDLINE DEVEOPERS IN THE MONTH OF JULY TO OCT. 2004. THE SOURCE OF THIS INVESTMENT R EMAIN UNEXPLAINED OUT OF THE TOTAL UNACCOUNTED PAYMENT RS. 1,35,00,00 0/- A PAYMENT OF RS. 3 LAKHS AS ADVANCE HAS BEEN ADDED TO THE INCOME OF THE ASSESSEE AS AN UNEXPLAINED INVESTMENT IN THE ASSESSMENT YEAR 2004-05. THE BALANCE AMOUNT OF RS. 1,32,00,000/- WAS THUS EDIT T O THE ASSESSEE UNDER SECTION 69 OF THE ACT, 1961. HOWEVER, THE LD. CIT (A) REDUCED THIS ADDITION ON THE BASIS THAT ALL THE EVIDENCES A VAILABLE ON RECORD BY WAY OF SUBMISSIONS MADE AND DOCUMENTS WHAT EMERGES THE FACTS THAT DURING THE COURSE OF SEARCH EVIDENCES WAS FOUND THA T THE ASSESSEE MADE PAYMENTS TO SHRI RAMPAL MEENA AND SHRI NARAYAN LAL MEENA AS PER THIS THE ASSESSEE MADE RS. 1 LAKHS EACH TO SHRI RAMPAL MEENA AND SHRI NARAYAN MEENA 13/10/2003 AND RS. 32 LAKHS EACH ON 7/7/2004. THUS, THE LD. CIT(A) HELD THAT IN THE ABSENCE OF AN Y EVIDENCE OF PAYMENT HAVING BEEN MADE TO THIS KASTKARS. OVER AN D ABOVE RS. 66 LAKHS THIS WAS TO BE TAKEN FOR THE FINAL PURCHASE A MOUNT PAID TO THE KASTKARS. THE CONTENTION OF THE ASSESSEE IS THAT , THAT THE LD. CIT(A) 22 FAIL TO APPRECIATE THE FACTS IN RIGHT PERSPECTIVE A ND CONSTRUED THE DOCUMENTS CORRECTLY WHICH WERE RECOVERED DURING THE COURSE OF SEACH. UNDISPUTED FACTS EMERGES THAT EMERGES FROM THE RECO RDS THAT THE TRANSACTION RELATES TO THE SAME LAND WHICH THE ASSE SSEE IS CLAIMING TO HAVE PURCHASE ON BEHALF OF M/S VASTU LAND & BUILDLI NE PVT. LTD. AND PAYMENTS REGARDING SALE CONSIDERATION OF THE SAME W AS MADE BY THE ASSESSEE. THE CLAIM OF THE ASSESSEE IS THAT THIS P AYMERS WERE RECEIVE FROM M/S VASTU LAND AND BUILDLINE PVT. LTD. THE ASS ESSING OFFICER IN THE REMAND REPORT AS STATED THAT THE PAYMENT TO THE KAS TKARS WERE MADE DIRECTLY BY THE M/S VASTU LAND & BUILDLINE DEVELOP ERS PVT. LTD AND BELIEVED THE VERSION OF M/S VASTU LAND & BUILDLINE DEVELOPERS PVT. LTD. WE FIND THAT THERE IS A SUFFICIENT EVIDENCE ON RECO RD WHICH WERE RECORDED DURING THE SEARCH OPERATION BY THE REVENUE . DESCRIBES THE TRANSACTION RELATED TO THE SAME LAND THE DOCUMENTS SO RECOVERED ARE NOT BELIEVED BY THE ASSESSING OFFICER. WE ARE UNAB LE TO UNDERSTAND AS WHY THE ASSESSEE WOULD MAKE PAYMENT OF THE SAME LAN D TO THE KASTKARS AND THE KASTKARS WOULD EXECUTE THE SALES D EEDS IN FAVOUR OF THE COMPANY NAMELY M/S VASTU LAND & BUILDLINE DEVEL OPERS PVT. LTD. THE LD. CIT(A) HAS CONSIDERED PART DOCUMENTS AS TRU E AND THE REST OF THE DOCUMENTS AS UNTRUE. WE FIND THAT BOTH THE AUT HORITY HAVE FAILED TO DECIDED THE ISSUE IN RIGHT PERSPECTIVE. THE ASS ESSING OFFICER HAS NOT CONFRONTED THE ASSESSEE WITH THE LETTER RECEIVED FR OM THE COMPANY. BY NO STRETCH OF IMAGINATION IT CAN BE INFERRED THAT T HE KASTKARS WOULD RECEIVED SALE CONSIDERATION FOR THE SAME LAND FROM TWO DIFFERENT PERSONS. UNDER THESE FACTS, WE ARE OF THE CONSIDERED VIEW TH AT THE ISSUE REQUIRE FRESH CONSIDERATION BY THE ASSESSING OFFICER ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD. HE WOULD ALSO BE FREE TO MAKE FURTHER ENQUIRY FROM KASTKARS AND M/S VASTU LAND AND BUILDLINE DEVE LOPERS PVT. LTD. AND THE ASSESSEE WOULD BE GIVEN SUFFICIENT OPPORTUN ITY TO REBUT. THIS GROUND OF THE ASSESSEES APPEAL IS ALLOWED FOR STAT ISTICAL PURPOSES. 23 16.1. SO, THIS ISSUE IS ALSO RESTORED TO FILE OF TH E ASSESSING OFFICER FOR DECISION AFRESH. THE GROUND RAISED IN THE REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 16.2. IN THE RESULT APPEAL OF THE ASSESSEE IN ITA N O. 909/JP/2013 PERTAINING TO ASSESSMENT YEAR 2005-06 AND APPEAL OF THE REVENUE I N ITA NO. 890/JP/2013 PERTAINING TO THE ASSESSMENT YEAR 2005-06 ARE PARTL Y ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 629/JP/2013 17. NOW, WE TAKE UP ASSESSEES APPEAL IN ITA NO. 6 29/JP/2013 PERTAINING TO THE ASSESSMENT YEAR 2010-11. THE ASSESSEE HAS RAISED F OLLOWING GROUNDS OF APPEALS :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE LD. CIT(A) HAS GROSSLY ERRED IN SUSTAINING ADDITION OF RS. 1,57,890/- AS M ADE ON ACCOUNT OF SILVER JEWELLERY ALLEGED AS UNEXPLAINED ARBITRARILY, THU T HE ADDITION OF RS. 1,57,890/- DESERVES TO BE DELETED. 1.1 THAT THE LD. CIT(A) HAS FURTHER ERRED IN IGNORING T HE FACT THAT MOST OF THE JEWELLERY WAS THE ANCESTRAL JEWELLERY OF ASSESSEES FAMILY AND WAS ACQUIRED MORE THAN 25 YEARS BACK AND LOOKING TO THE SOCIAL STATUS OF THE FAMILY THE ADDITION UPHOLD TOWARDS THE ENTIRE SILVE R JEWELLERY/ITEMS OWNED BY ENTIRE FAMILY DESERVES TO BE DELETED. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE LD. CIT(A) HAS GROSSLY ERRED IN SUSTAINING THE ADDITION OF RS. 16,99,974/- MADE ON ACCOUNT OF CASH FOUND DURING THE COURSE OF SEARCH BY HOLDING THE SA ME AS UNEXPLAINED ARBITRARILY. 2.1.THAT THE LD. CIT (A) HAS FURTHER ERRED IN IGNOR ING THE FACT THAT THE CASH BELONGING TO OTHER FAMILY MEMBERS AND IS DULY BACKE D BY THE RESPECTIVE BOOKS OF ACCOUNTS HAVE BEEN ACCEPTED BY SAME ASSESS ING AUTHORITY IN THEIR ASSESSMENTS COMPLETED U/S 143(3) , THUS THE ADDITIO N MADE TOWARDS THE CASH BELONGING TO SUCH FAMILY MEMBERS DESERVES TO BE DEL ETED AT 13,45,923/-. 2.2.THAT THE LD. CIT (A) HAS FURTHER ERRED IN IGNOR ING THE FACT THAT CASH BELONGING TO ASSESSEE AND HIS WIFE AT RS. 3,54,051/- IS DULY RECORDED IN BOOKS OF ACCOUNTS MAINTAINED IN REGULAR COURSE AND SUCH BOOK S OF ACCOUNTS HAVE NOT 24 BEEN DOUBTED BY THE LD. AO THUS THE ADDITION OF THE CASH BELONGING TO ASSESSEE AND HIS WIFE AT RS. 3,54,051/- DESERVES TO BE DELETED. 2.3.THAT THE LD. CIT (A) HAS FURTHER ERRED IN PLACI NG RELIANCE ON THE STATEMENTS OF THE ASSESSEE RECORDED DURING THE COURSE OF SEARCH B Y IGNORING THE FACT THAT SUCH ADMISSION HAS BEEN REBUTTED BY ASSESSEE WITH P LAUSIBLE EXPLANATION. 3. THAT THE APPELLANT CRAVES THE RIGHT TO ADD, DELETE, AMEND OR ABANDON ANY OF THE GROUNDS OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF APPEAL. 18. BRIEFLY, STATED THE FACTS ARE THAT, WHILE FRAMI NG THE ASSESSMENT THE ASSESSING OFFICER MADE ADDITION OF RS. 28,40,000/- AS UNEXPLA INED INVESTMENT, ADDITION OF RS. 16,99,974/- ON ACCOUNT OF CASH IN HAND IN RESPECT OF FIVE INDIVIDUALS AND ADDITION OF RS. 15,10,567/- ON ACCOUNT OF INVESTMENT IN JEWELLE RY. AGGRIEVED BY THIS, THE ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A) WHO AFTER CONSIDERING THE SUBMISSIONS PARTLY ALLOWED THE APPEAL, THEREBY HE D ELETED THE ADDITION OF RS. 28,40,000/-, SUSTAINED ADDITION OF RS. 1,57,890/- O UT OF ADDITION OF RS. 15,10,567/- AND CONFIRMED THE ADDITION OF RS. 16,99,974/-. AGGR IEVED BY THIS, THE ASSESSEE HAS FILED THE PRESENT APPEAL. 19. APROPOS TO GROUND NO. 1 TO 1.1, LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE IN THE WRITTEN SUBMISSIONS. TH E LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT DURING THE COURSE OF SEARCH AT THE R ESIDENTIAL PREMISES OF THE ASSESSEE AND HIS FAMILY MEMBER THE TOTAL JEWELLERY WORTH OF RS. 15,10,567/- WAS FOUND IN TERMS OF ANNEXURE JF DATED 18/03/2010. T HE LD. COUNSEL SUBMITTED THAT DURING THE ASSESSMENT PROCEEDINGS ASSESSEE HAD EXPL AINED THAT THE INVESTMENT IN GOLD AND SILVER JEWELLERY WAS MADE BY THE ASSESSEE AND THEIR FAMILY MEMBER OUT OF WITHDRAWAL OF REMUNERATION FROM GROUP COMPANY AND A LSO OR THEIR SAVINGS. THE INVESTMENT IN JEWELLERY IS DULY RECORDED IN THEIR P ERSONAL BOOK OF AMOUNT, HE DREW 25 OUR ATTENTION TO (APB 52-55). THE LD. COUNSEL SUBM ITTED THAT THE JEWELLERY WAS ACQUIRED BY THE ASSESSEE AND HIS FAMILY MEMBER, AT THE TIME OF THEIR MARRIAGE AND OTHER SOCIAL FUNCTIONS. WHICH WAS SOLEMNIZED ALMOS T 15 TO 20 YEARS BACK. THUS, THE ENTIRE JEWELLERY IS DESERVE TO BE HOLD AS UNEXPLAIN ED. HE SUBMITTED THAT UNDER THEE FACTS THE AUTHORITIES WERE JUSTIFIED IN MAKING THE ADDITION. 19.1. ON THE CONTRARY, THE LD. DEPARTMENTAL REPRESE NTATIVE CONTRARY OPPOSED THE SUBMISSION. 19.2. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE RECORD AND GONE THROUGH THE ORDER OF THE AUTHORITIES BELOW . THE LD. CIT(A) RESTRICTED THE ADDITION TO THE EXTENT OF RS. 1,57,890/- AFTER GIVI NG BENEFIT OF CBDTS INSTRUCTION DATED 11/5/1994. WE FIND THAT THE LD. CIT(A) HAS NO T CONSIDERED THIS FACTS THAT THI JEWELLERY WAS ACQUIRED TO 15 TO 20 YEARS AGO. AFTER CONSIDERING TOTALITY OF THE FACTS WE THEREFORE DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION. GROUND NO. 1 TO 1.1 OF THE ASSESSEES APPEAL IS ALLOWED. 20. APROPOS TO GROUND NO. 2 TO 2.3, THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSION AS MADE IN THE WRITTEN BRIEF. HE SU BMITTED THAT THE ALLEGATIONS OF THE LD. CIT(A) DO NOT FIND FORCE IN VIEW OF THE FAC TS THAT THE ASSESSING OFFICER MISERABLY FAILED TO POINT OUT ANY DEFECTS IN THE CA SH BOOK OF THE FAMILY MEMBER AND ALSO FAILED TO BRING ON RECORD ANY CONTRARY EVIDENC E/MATERIAL TO REJECT THE CASH BOOK SO SUBMITTED OR NOT ACCEPTABLE OR THE SOURCE OF CAS H BALANCE APPEARING AGAINST VARIOUS INDIVIDUALS FAMILY MEMBERS HAVE NOT BEEN SA TISFACTORILY EXPLAINED. HE SUBMITTED THAT COPY OF BALANCE SHEET OF THE FAMILY MEMBER OF THE ASSESSEE AS ON DATE OF SEARCH MENTIONING CASH BALANCE ON THE DATE OF SEARCH IS IN PARITY WITH THE CASH FOUND DURING THE COURSE OF SEARCH. HE DREW OU R ATTENTION TO PAPER BOOK PAGES 26 52 TO 56. HE FURTHER SUBMITTED THAT CASH BALANCES B ELONGING TO OTHER FAMILY MEMBERS AMOUNTING TO RS. 13,45,923/- IS DULY BACKE D BY THE RESPECTIVE BOOKS OF ACCOUNTS WHICH HAVE BEEN ACCEPTED BY THE SAME AUTHO RITIES IN THEIR RESPECTIVE ASSESSMENT COMPLETELY UNDER SECTION 143(3) OF THE I NCOME TAX ACT, 1961, WHEREIN RETURN INCOME WAS ACCEPTED THUS CASH BALANCE APPEAR ING IN THEIR INDIVIDUAL BOOKS ON ACCOUNT DESERVES TO BE ACCEPTED. HE DREW OUR ATTEN TION TO THE PAPER BOOK PAGES 60 TO 69 WHERE THE ASSESSMENT ORDERS ARE ENCLOSED. HE FURTHER SUBMITTED THAT CASH BELONGING TO ASSESSEE AND HIS WIFE OF RS. 3,54,051/ - WAS DULY RECORDED IN BOOKS OF ACCOUNT MAINTAINED IN REGULAR COURSE AND SUCH BOOK S OF ACCOUNTS HAVE NOT BEEN DOUBTED IN THE CASE OF ASSESSEE HIMSELF WHEREIN THE INCOME DECLARED AS PER BOOK ON ACCOUNT WAS ACCEPTED. THUS CASH BELONGING TO ASSESS EE AND HIS WIFE AT RS. 3,54,051/- DESERVES TO BE DELETED. 20.1. ON THE CONTRARY, LD. DEPARTMENTAL REPRESENTAT IVE OPPOSED THE SUBMISSIONS AND SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 20.2. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND FORCE INTO THE CONTENTION OF LD. CO UNSEL FOR THE ASSESSEE WHEN THE CASH IN HAND HAS BEEN DULY ACCEPTED IN THE HANDS OF INDIVIDUAL FAMILY MEMBERS. THEREFORE, MAKING THE ADDITION OF THE SAME AMOUNT I N THE HANDS OF THE ASSESSEE IS NOT JUSTIFIED. ACCORDINGLY, WE HEREBY, DIRECT THE ASSESSING OFFICER TO DELETE HIS ADDITION. 21. GROUND NO. 3 IS GENERAL IN NATURE NEEDS NO SEPA RATE ADJUDICATION. 22. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN IT A NO. 629/JP/2013 (PERTAINING TO THE ASSESSMENT YEAR 2010-11) IS ALLOWED. 27 ITA NO. 206/JP/2016: 23. NOW, WE TAKE UP THE ASSESSEES APPEAL IN THE CA SE OF SHRI DINESH MEENA IN ITA NO. 206/JP/2016. THE ASSESSEE HAS RAISED SOLIT ARY GROUND AS UNDER: THE ASSESSING OFFICER AND COMMISSIONER OF INCOME TAX (APPEALS), ALWAR, RAJASTHAN ERRED IN FACT AND LAW IN MAKING AD DITION OF RS. 2,00,000/- RECEIVED FROM MOHINI POONIA AS ADVANCE F OR SALE OF IMMOVABLE ASSETS WITHOUT CONSIDERING THE FACTS SUBM ITTED. THE ONLY GROUND IS AGAINST THE CONFIRMATION OF ADDI TION OF RS. 2 LAKHS. 24. BRIEFLY STATED THE FACTS ARE THAT THE ASSESSING OFFICER MADE ADDITION OF RS. 2 LAKHS ON ACCOUNT OF CASH DEPOSITS IN THE BANK ACCOU NT OF THE ASSESSEE. THE ASSESSING OFFICER REJECTED THE EXPLANATION THAT MO NEY WAS RECEIVED FROM MS. MOHINI PUNIA. ON FURTHER APPEAL BEFORE LD. CIT(A) THE ADD ITION CAME TO BE SUSTAINED. THE LD. CIT(A) DID NOT CONSIDER THE EVIDENCES FILED B EFORE HIM ON THE GROUND FOR WANT OF GENUINENESS AND THE DOCUMENTS WERE NOT BE RELIED . AGGRIEVED BY THIS THE ASSESSEE IS BEFORE THIS TRIBUNAL. 24.1. LD. COUNSEL FOR THE ASSESSEE REITERATED THE S UBMISSION AS MADE IN THE WRITTEN SUBMISSIONS. THE LD. COUNSEL SUBMITTED THAT AUTHORI TIES BELOW FAILED TO MAKE PROPER ENQUIRIES. HE SUBMITTED THAT NO ENQUIRY WAS MADE O N THE MATERIAL FURNISHED. HE SUBMITTED THAT THE MATERIAL EVIDENCE IN THE FORM OF CONFIRMATION AND EVIDENCE TO SUPPORT THE CREDIT WORTHINESS OF THE CREDITORS WAS DULY FURNISHED. HE FURTHER SUBMITTED THAT THE LD. CIT (A) FAILED TO APPRECIATE THAT THE MONEY WAS RETURNED THROUGH BANKING CHANNELS. HE SUBMITTED THAT MERELY BECAUSE MONEY IS DEPOSITED AS CASH DEPOSITS IN THE BANK ACCOUNT SHOULD NOT BE THE SOLE GROUND FOR MAKING 28 ADDITION. THE LD. CIT(A) OUGHT NOT TO HAVE BRUSHED ASIDE OF THE EVIDENCES OF THE ASSESSEE. 24.2. ON THE CONTRARY, LD. DEPARTMENTAL REPRESENTAT IVE OPPOSED THE SUBMISSION AND SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. 24.3. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELO W. IN THIS CASE, THE ASSESSING OFFICER MADE ADDITION ON THE BASIS OF CASH DEPOSITS IN THE BANK ACCOUNT. THE EXPLANATION BEFORE THE ASSESSING OFFICER WAS THAT T HIS AMOUNT OF RS. 2 LAKHS WAS TAKEN OR MS. MOHINI PUNIA AND IT WAS SUBSEQUENTLY R ETURNED BOTH THE AUTHORITY BELOW DID NOT ACCEPT THE CONTENTIONS OF THE ASSESSE E. THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT THE ASSESSEE FURNISHED THE EVIDENCES BEFORE THE LD. CIT(A) IN THE FORM OF CONFIRMATION AGREEMENT AND THE INCOME T AX RETURNS. NO ENQUIRY WAS MADE BY THE ASSESSING OFFICER EVEN DURING THE REMAN D PROCEEDINGS ON THESE EVIDENCES. IN OUR CONSIDERED VIEW AO OUGHT TO HAVE MADE ENQUIRY WHEN THERE WAS SPECIFIC CONFIRMATION BY MS. MOHINI PUNIA. MOREOVE R, THERE IS AN EVIDENCE ON RECORD ADMINISTRATING THAT MONEY WAS RETURN TO THE MS. MO HINI PUNIA. THERE IS DEBIT ENTRY IN THE NAME OF MS. MOHINI PUNIA IN THE BANKS STATE MENT OF THE ASSESSEE. 24.4. UNDER THESE FACTS, WE ARE UNABLE TO SUSTAIN T HE ADDITION, THEREFORE WE DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION. THE GROUNDS RAISED IN THE APPEAL IS ALLOWED. 25. IN THE RESULT, ITA NO. 206/JP/2016 IS ALLOWED. 29 ITA NO. 598/JP/2015 & ITA NO. 83/JP/2013 26. NOW, WE TAKE UP ASSESSEES APPEAL IN ITA NO. 59 8/JP/2015 & ITA NO. 83/JP/2013 IN THE CASE OF SHRI RAM KARAN MEENA. 26.1. FIRST, WE TAKE UP ASSESSEES APPEAL IN ITA N O. 598/JP/2015. THE ASSESSEE HA RAISED FOLLOWING GROUNDS OF APPEAL. 1. THE ASSESSING OFFICER AND COMMISSIONER OF INCO ME TAX (APPEALS) ALWAR, RAJASTHAN ERRED IN FACT AND LAW IN MAKING AD DITION OF RS. 184384.00 WITHOUT CONSIDERING THE BANK ACCOUNT WITH DRAWALS IN CASH AS ON 06.02.2003 AMOUNTING TO RS. 3,40,000.00. 2. THE ASSESSEE RESERVES THE RIGHT TO ADD, ALTER, A MEND ANY GROUNDS OF APPEAL. 27. THE ONLY EFFECTIVE GROUND IS SUSTAINING THE ADD ITION OF RS. 1,84,384/-. THE FACTS GIVING RISE TO THIS GROUND IS THAT DURING THE ASSESSMENT PROCEEDINGS THE ASSESSEE CLAIM SUM OF RS. 3,84,384/- AS OPENING BAL ANCE AS ON 1/4/2003. THE AO ACCEPTED THE OPENING BALANCE TO THE EXTENT OF RS. 2 LAKHS AND BALANCE IN SUM OF RS. 1,84,384/- WAS ADDED TO THE INCOME OF THE ASSESSEE. AGAINST THIS, THE ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A) WHO AFTER CON SIDERING THE SUBMISSIONS SUSTAINED THE ADDITION. THUS, THE ASSESSEE IS BEFO RE THIS TRIBUNAL BY WAY OF PRESENT APPEAL. 27.1. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED TH AT FINDING OF AUTHORITY BELOW IS PATENTLY WRONG AND ITS CONTRARY TO THE MATERIAL ON RECORD. HE VEHEMENTLY ARGUED THAT IT WAS STATED BEFORE LD. CIT (A) THAT THERE WA S AN WITHDRAWAL OF SUM OF RS. 3,40,000/- FROM THE SB ACCOUNT NO. 3867 OF THE ASSE SSEE HELD AT PUNJAB NATIONAL BANK ON 6/2/2003. THIS AMOUNT REMAINED WITH ASSESS EE. IN SUPPORT OF THIS 30 CONTENTION HE DREW OUR ATTENTION ON PAGE NO. 14 WHE RE STATEMENT OF BANK ACCOUNT IS ENCLOSED. HE SUBMITTED THAT BARE READING OF THE STATEMENT WOULD DEMONSTRATE THAT THE AUTHORITIES BELOW WERE NOT JUSTIFIED IN MA KING ADDITION AND SUSTAINING THE SAME. 27.2. ON THE CONTRARY, THE LD. DEPARTMENTAL REPRESE NTATIVE OPPOSED THE SUBMISSION OF THE ASSESSEE AND SUPPORTED THE ORDERS OF THE AUT HORITIES BELOW. 27.3. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT A SPECIFIC SUBMISSION WAS MA DE BEFORE THE LD. CIT(A) THAT A SUM OF RS. 3,40,000/- WAS AVAILABLE WITH THE ASSESS EE IN THE FORM OF BANK WITHDRAWAL. THIS FACT IS NOT DISPUTED BY THE REVEN UE. THE LD. CIT(A) REJECTED THE SUBMISSION, ON THE BASIS THAT THERE WAS CASH DEPOSI T AND WITHDRAWAL FROM THE BANK ACCOUNT ON THE SAME DATE. WE FIND THAT THIS FINDIN G OF LD. CIT(A) IS CONTRARY TO THE CONTENTS OF THE BANK STATEMENT. AS PER THE BANK ST ATEMENT, THERE IS AN ENTRY OF CASH DEPOSIT ON 20/1/2003 OF RS. 3,40,000/- AND WIT HDRAWAL OF THE SAME AMOUNT AS ON 6/2/2003. FURTHER, WE FIND THAT THERE IS NO SUB STANTIAL CASH DEPOSITS AND WITHDRAWAL IN THE BANKS STATEMENT POST 6 TH FEB. 2003. IT IS FURTHER NOTED THAT THERE IS AN ENTRY OF DEPOSITS OF RS. 2,03,000/- ON 22/5/2 003 AND THE WITHDRAWAL OF RS. 2,03,000/- ON SAME DATE WHICH IS POST 1/4/2003. UN DER THESE UNDISPUTED FACTS WE ARE OF THE VIEW THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING ADDITION. ACCORDINGLY, WE DIRECT THE ASSESSING OFFICER TO DE LETE THE ADDITION. ITA NO. 83/JP/14 28. NOW, WE TAKE UP ASSESSEES APPEAL IN ITA NO. 83 /JP/2014. THE APPEAL IS DIRECTED AGAINST THE ORDER LD. CIT(A), CENTRAL, JAI PUR DATED 1/11/2013. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL . 31 1. THE ASSESSING OFFICER AND COMMISSIONER OF INCOME T AX(A) CENTRAL, JAIPUR ERRED IN FACT AND ALSO BY LAW IN IMPOSING PENALTY U NDER SECTION 271D OF THE INCOME TAX ACT ON THE FOLLOWING GROUNDS:- (ANNEXURE ATTACHED) 2. THE ASSESSEE RESERVE THE RIGHT TO ADD, ALTER, AM END ANY GROUNDS OF APPEAL. THE ONLY EFFECTIVE GROUND IS AGAINST THE CONFIRMATI ON OF PENALTY UNDER SECTION 271D OF THE ACT. 29. THE FACTS IN BRIEF ARE THAT THE JCIT INITIATED PENALTY PROCEEDINGS UNDER SECTION 271D PERTAINING TO ASSESSMENT YEAR 2005-06. IT W AS FOUND THAT THE ASSESSEE HAD RECEIVED ADVANCE/LOANS/DEPOSITS FROM SHRI RAM SWARO OP MEENA IN CASH NOT THROUGH ACCOUNT PAY CHECK OR ACCOUNT PAY DRAFT ON LOAN AMOU NT EXCEEDING RS. 20,000/-. IT WAS ALLEGED THAT THE TOTAL AMOUNT RECEIVED WAS RS. 12,06,000/- WHICH WAS IN VIOLATION OF SECTION 269SS OF THE IT ACT. SUBSEQU ENTLY, THE JCIT IMPOSED A PENALTY OF RS. 12,06,000/- VIDE ORDER DATED 25/6/2012. TH IS ORDER WAS ASSAILED BY THE ASSESSEE BEFORE LD. CIT(A) WHO HOWEVER SUSTAINED TH E PENALTY. NOW, THE ASSESSEE IS IN FURTHER APPEAL BEFORE THIS TRIBUNAL. 29.1. THE LD. COUNSEL SUBMITTED THAT THE AUTHORITIE S BELOW FAILED TO APPRECIATE THE FACT THAT THERE WAS NO ACTUAL TRANSFER OF CASH. AS SESSEE MERELY BOOKED ENTRIES, THE AMOUNT WAS NEITHER LOAN NOR DEPOSIT. HE SUBMITTED THAT IT WAS PLEADED BEFORE AUTHORITIES BELOW THAT THE BUSINESS WAS BEING CARRI ED OUT BY THE ASSESSEE AND HIS BROTHERS. THEREFORE IT WAS NOT ACTUAL TRANSFER OF CASH. HE SUBMITTED THAT SUCH BOOK ENTRIES WOULD NOT FALL UNDER THE AMBIT OF SECTION 2 69SS OF THE ACT, AS SUCH PROVISIONS OF SECTION 271D OF THE ACT WOULD NOT BE APPLICABLE. HE PLACED RELIANCE ON VARIOUS CASE LAWS, MORE PARTICULARLY ON THE JUDGMENT OF THE HONBLE GUJARAT HIGH COURT 32 RENDERED IN THE CASE OF CIT VS. NARTWARLAL PURSHOTT AMDAS PAREKH (2008)303 ITR 5(GUJ). 29.2. ON THE CONTRARY, THE LD. DEPARTMENTAL REPRESE NTATIVE OPPOSED THE SUBMISSIONS AND SUPPORTED THE REASONING OF AUTHORIT IES BELOW. HE ALSO PLACED RELIANCE ON THE HONBLE MADRAS HIGH COURT RENDERED IN THE CASE OF KASI CONSULTANT CORPORATION VS. DCIT (2009) 311 ITR 0419 (MAD.). 29.3. THE LD. AR ALSO PLACED RELIANCE ON THE JUDGM ENT OF THE HONBLE ANDHRA PRADESH HIGH COURT RENDERED IN THE CASE OF GURURAJ MINI ROLLER FLOUR MILLS VS. ADDITIONAL CIT 370 ITR 50 (AP). THE LD. AR ALSO PL ACED RELIANCE ON THE DECISION OF THE COORDINATE BENCH RENDERED IN THE CASE OF CHANDR A CEMENT LTD. VS. DEPUTY COMMISSIONER OF INCOME TAX (2000) 68 TTJ 35(JP-TRIB ). 29.4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUS ED THE MATERIAL AVAILABLE RECORD. THE CONTENTION OF THE ASSESSEE IS THAT THE PROVISION OF SECTION 271D IS NOT APPLICABLE AS THE ASSESSEE HAS NOT TAKEN LOANS OR A DVANCES, IT IS MERE BOOK ENTRY. IT IS ALSO STATED THAT SUCH BOOK ENTRY TRANSFER WAS FO R THE PURPOSE OF MAKING INVESTMENT. IT IS ALSO STATED THAT THE ASSESSEE WA S CARRYING ON JOINT BUSINESS WITH HIS BROTHERS. THEREFORE, THIS CANNOT BE TREATED AS LOAN AND ADVANCES IN STRICT SENSE. THE HONBLE ANDHRA PRADESH HIGH COURT IN THE CASE O F GURURAJ MINI ROLLER FLOUR MILLS VS. ADDITIONAL CIT (SUPRA) HAS HELD THAT IF THEIR E XISTS REASONABLE CAUSE FOR FAILURE TO COMPLY WITH SECTION 271D AND 271E OR OTHER RELATED PROVISIONS, PENALTY NEED NOT BE IMPOSED. IT IS FURTHER HELD THAT MAKING BOOK ADJUS TMENT OF THE FUNDS, BY A FIRM VIS- A-VIS ITS SISTER CONCERN, CAN BY NO MEANS BE SAID T O BE THE ONE TAKEN IN CLEAR VIOLATION OR CONTRAVENTION OF THE SAID PROVISIONS. THE COORDINATE BENCH IN THE CASE OF CHANDRA CEMENT LIMITED VS. DEPUTY COMMISSIONER O F INCOME TAX 68 TTJ(JP)35 33 OBSERVED THAT WHEN ONE SINGLE INDIVIDUAL IS MANAGIN G THE AFFAIR OF TWO CONCERNS AND THE DECISION TO TRANSFER THE FUNDS FROM ONE CONCER N TO ANOTHER OR TO REPAY THE FUNDS COULD HAVE BEEN SAID TO HAVE BEEN LARGELY INF LUENCED BY THE SAME INDIVIDUAL, IT CAN NOT BE SAID THAT TRANSACTION PARTAKE THE NATURE OF EITHER DEPOSIT OR LOAN. IN THE PRESENT CASE THE GENUINENESS OF THE TRANSACTION IS NOT DOUBTED BY THE ASSESSING OFFICER. THEREFORE, IN THE LIGHT OF THE JUDGMENT O F THE HONBLE ANDHRA PRADESH HIGH COURT IN THE CASE OF GURURAJ MINI ROLLER FLOUR MILL S VS. ADDITIONAL CIT (SUPRA) AND ALSO THE DECISION OF THE COORDINATE BENCH IN THE CA SE OF CHANDRA CEMENT LTD. VS. DEPUTY COMMISSIONER OF INCOME TAX (SUPRA), WE ARE OF THE VIEW THAT THE AUTHORITIES BELOW WERE NOT JUSTIFIED IN CONFIRMING THE PENALTY. OUR THIS VIEW IS ALSO FORTIFIED BY THE JUDGMENT OF THE HONBLE GUJARAT HI GH COURT RENDERED IN THE CASE OF CIT VS. NARTWARLAL PURSHOTTAMDAS PAREKH (SUPRA). T HEREFORE, WE DIRECT THE ASSESSING OFFICER TO DELETE THE PENALTY. THIS GROU ND OF THE ASSESSEES APPEAL IS ALLOWED. ITA NO. 607/JP/2015 30. NOW, WE TAKE UP ASSESSEES APPEAL IN ITA NO. 60 7/JP/2015. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEALS :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE LD. CIT (A) HAS GROSSLY ERRED IN UPHOLDING THE ACTION OF LD. AO IN TREATING THE GROSS RECEIPTS OF RS. 3,51,055/- FROM HIRING AS UNACCOUNT ED INCOME BY REJECTING VEHICLE HIRING BUSINESS AND THEREBY MAKING AN ADDIT ION OF RS. 3,03,055/- [(3,51,055 48,000 (INCOME ALREADY DECLARED ON ACC OUNT OF VEHICLE HIRING)] AS INCOME FROM OTHER SOURCES, ARBITRARILY WITHOUT CONSIDERING THE SUBMISSIONS MADE AND EVIDENCES ADDUCED. HENCE THE A DDITION OF RS. 3,03,055/- DESERVES TO BE DELETED, MORE PARTICULARL Y WHEN SUCH INCOME WAS DULY DECLARED IN REGULAR RETURNS FILED U/S 139( 1) AND NO ADVERSE EVIDENCE WAS FOUND AS A RESULT OF SEARCH LEADING TO BELIEF THAT ASSESSEE WAS NOT ENGAGED IN VEHICLE HIRING BUSINESS. 34 1.1. THAT THE LD. CIT (A) HAS FURTHER ERRED IN UPHOLDING THE DISALLOWANCE OF THE FOLLOWING EXPENSES CLAIMED OUT OF VEHICLE HIRIN G INCOME ARBITRARILY CONSIDERING THE GENUINENESS OF THE CLAIM. PARTICULARS AMOUNT DEPRECIATION 1,51,560.00 INTEREST ON CAR LOAN 63,632.00 REPAIRING AND MAINTENANCE 7,860.00 SALARY 60,000.00 BANK CHARGES 20,003.00 TOTAL 3,03,055.00 1.2. THAT THE LD. CIT (A) HAS FURTHER ERRED IN UPHOLDING THE OBSERVATION OF LD. AO AT PAGE 2 OF THE ASSESSMENT ORDER THAT ASSES SEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS HAS NOT ADDUCED AN Y EVIDENCE IN SUPPORT OF EXPENSES CLAIMED AND AO HAS FAILED TO AP PRECIATE THE REPLY OF THE ASSESSEE IN QUESTION NO. 9 REPRODUCED BY THE AO AT SAME PAGE WHEREIN ASSESSEE HAS CATEGORICALLY MENTIONED ABOUT THE LOANS TAKEN ON SUCH VEHICLES. HENCE THE EXPENSES SO CLAIMED DES ERVES TO BE ALLOWED AND INCOME BE CLASSIFIED AS EARNED FROM VEH ICLE HIRING BUSINESS. 2. THAT THE APPELLANT CRAVES THE RIGHT TO ADD, DELETE, AMEND OR ABANDON ANY OF THE GROUNDS OF THIS APPEAL AT THE TIME OR BEFORE THE ACTUAL HEARING OF THE CASE. 30.1. ONLY EFFECTIVE GROUND OF THIS APPEAL IS DURIN G THE COURSE OF RECEIPTS OF RS. 3,51,355/- FROM HIRING OF VEHICLES BUSINESS AS UNAC COUNTED INCOME FROM OTHER SOURCES. IT IS STATED BY THE REPRESENTATIVE OF THE PARTIES THAT SIMILAR GROUND IS RAISED IN ITA NO. 908/JP/2013 PERTAINING TO THE ASSESSMENT YEAR 2004-05. BOTH THE LD. DEPARTMENTAL REPRESENTATIVES OF THE PARTIES HAVE AD OPTED THE SAME ARGUMENT AS WERE ADDRESSED IN ITA NO. 908/JP/2013(SUPRA). 30.2. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDER OF THE AUTHORITIES BELOW . WE FIND THAT THE ASSESSEES 35 APPEAL IN ITA NO. 908/JP/2013 HAS RAISED IDENTICAL GROUND NO. 1 TO 1.4 WHEREIN WE HAVE DECIDED THE ISSUE AS UNDER :- WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE RECORD AND GONE THROUGH THE ORDER OF THE AUTHORITIES BELOW. THE CLAIM OF THE ASSESSEE IS THAT HE WAS ENGAGED IN THE BUSINESS OF PLYING VEHICLES ON HIRING. ADMITTEDLY, THERE IS NO SUPPOR TING EVIDENCE WHICH SUGGEST THAT THE ASSESSEE HAD CARRIED OUT THIS ACTIVITY. AN OTHER CONTENTION OF LD. COUNSEL FOR THE ASSESSEE IS THAT EVEN IF IT IS ASSU MED THAT THE VEHICLES WERE NOT USED FOR BUSINESS OF HIRING OF VEHICLES EVEN TH EN THE EXPENDITURE AS CLAIMED IS ALLOWABLE AS THE VEHICLES WERE USED FOR BUSINESS PURPOSES. WE FIND THAT NO SUCH CLAIM WAS MADE BEFORE THE AUTH ORITIES BELOW. HOWEVER, IT WAS INCUMBENT UPON THE ASSESSEE TO SUP PORT THIS CLAIM WITH SOME EVIDENCE. MERELY, STATING THAT THE VEHICLES W ERE FOR BUSINESS PURPOSES, IN OUR VIEW, IT WOULD NOT BE SUFFICIENT TO ALLOW TH E CLAIM OF THE ASSESSEE. THEREFORE, IN THE ABSENCE OF MATERIAL EVIDENCES, TH E CLAIM OF THE ASSESSEE CAN NOT BE ALLOWED. THUS THESE GROUNDS OF ASSESSE ES APPEAL ARE DISMISSED. THEREFORE, TAKING THE CONSISTENT VIEW AS FACTS ARE IDENTICAL IN THIS YEAR ALSO AND NO CHANGE INTO THE FACTS AND CIRCUMSTANCES HAVE BEEN P OINTED OUT BY EITHER OF THE PARTY. WE HEREBY DISMISS THE APPEAL OF THE ASSESSE E. 31. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMIS SED. ITA NO. 608, 609 & 610/JP/2015 : 32. NOW, WE TAKE UP ASSESSEES APPEALS IN ITA NO. 6 08, 609 & 610/JP/2015. SINCE COMMON GROUNDS ARE INVOLVED IN ALL THESE APPE ALS, WE ARE DISPOSING OFF ALL THESE APPEALS TOGETHER, FOR THE SAKE OF CONVENIENCE . THE GROUNDS RAISED IN THESE 36 APPEALS ARE SAME EXCEPT CHANGE IN FIGURES, THEREFOR E, WE REPRODUCE THE GROUNDS PERTAINING TO ASSESSMENT YEAR 2007-08 IN ITA NO. 608/JP/2015 AS UNDER :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT (A) HAS GROSSLY ERRED IN UPHOLDING THE ACTION OF LD. AO IN TREATING THE GROSS RECEIPTS OF RS. 3,06,796/- FROM HIRING AS UNACCOUNT ED INCOME BY REJECTING VEHICLE HIRING BUSINESS AND THEREBY MAKIN G AN ADDITION OF RS. 2,22,796/- [(3,06,796 84,000 (INCOME ALREADY DECL ARED ON ACCOUNT OF VEHICLE HIRING)] AS INCOME FROM OTHER SOURCES, ARBI TRARILY WITHOUT CONSIDERING THE SUBMISSIONS MADE AND EVIDENCES ADDU CED. HENCE THE ADDITION OF RS. 2,22,796/- DESERVES TO BE DELETED, MORE PARTICULARLY WHEN SUCH INCOME WAS DULY DECLARED IN REGULAR RETUR NS FILED U/S 139(1) AND NO ADVERSE EVIDENCE WAS FOUND AS A RESULT OF SE ARCH LEADING TO BELIEF THAT ASSESSEE WAS NOT ENGAGED IN VEHICLE HIR ING BUSINESS. 1.1. THAT THE LD. CIT (A) HAS FURTHER ERRED IN UPHOLDING THE DISALLOWANCE OF THE FOLLOWING EXPENSES CLAIMED OUT OF VEHICLE HIRIN G INCOME ARBITRARILY CONSIDERING THE GENUINENESS OF THE CLAIM. PARTICULARS AMOUNT DEPRECIATION 90,936.00 INTEREST ON CAR LOAN 63,871.00 REPAIRING AND MAINTENANCE 7,584.00 SALARY 60,000.00 BANK CHARGES 405.00 TOTAL 2,22,796.00 1.2. THAT THE LD. CIT (A) HAS FURTHER ERRED IN UPHOLDING THE OBSERVATION OF LD. AO AT PAGE 2 OF THE ASSESSMENT ORDER THAT ASSES SEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS HAS NOT ADDUCED AN Y EVIDENCE IN SUPPORT OF EXPENSES CLAIMED AND AO HAS FAILED TO AP PRECIATE THE REPLY OF THE ASSESSEE IN QUESTION NO. 9 REPRODUCED BY THE AO AT SAME PAGE WHEREIN ASSESSEE HAS CATEGORICALLY MENTIONED ABOUT THE LOANS TAKEN ON SUCH VEHICLES. HENCE THE EXPENSES SO CLAIMED DES ERVES TO BE ALLOWED AND INCOME BE CLASSIFIED AS EARNED FROM VEH ICLE HIRING BUSINESS. 2. THAT THE APPELLANT CRAVES THE RIGHT TO ADD, DELETE, AMEND OR ABANDON ANY OF THE GROUNDS OF THIS APPEAL AT THE TIME OR BEFORE TH E ACTUAL HEARING OF THE CASE. 37 32.1. ONLY EFFECTIVE GROUND OF THIS APPEAL IS DURIN G THE COURSE OF RECEIPTS OF RS. 3,06,796/- FROM HIRING OF VEHICLES BUSINESS AS UNAC COUNTED INCOME FROM OTHER SOURCES. IT IS STATED BY THE REPRESENTATIVE OF THE PARTIES THAT SIMILAR GROUND IS RAISED IN ITA NO. 908/JP/2013 PERTAINING TO THE ASSESSMENT YEAR 2004-05. BOTH THE LD. DEPARTMENTAL REPRESENTATIVES OF THE PARTIES HAVE AD OPTED THE SAME ARGUMENT AS WERE ADDRESSED IN ITA NO. 908/JP/2013(SUPRA). 32.2. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDER OF THE AUTHORITIES BELOW . WE FIND THAT THE ASSESSEES APPEAL IN ITA NO. 908/JP/2013 HAS RAISED IDENTICAL GROUND NO. 1 TO 1.4 WHEREIN WE HAVE DECIDED THE ISSUE AS UNDER :- WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE M ATERIAL AVAILABLE RECORD AND GONE THROUGH THE ORDER OF THE AUTHORITIE S BELOW. THE CLAIM OF THE ASSESSEE IS THAT HE WAS ENGAGED IN THE BUSINESS OF PLYING VEHICLES ON HIRING. ADMITTEDLY, THERE IS NO SUPPORTING EVIDENCE WHICH S UGGEST THAT THE ASSESSEE HAD CARRIED OUT THIS ACTIVITY. ANOTHER CONTENTION O F LD. COUNSEL FOR THE ASSESSEE IS THAT EVEN IF IT IS ASSUMED THAT THE VEH ICLES WERE NOT USED FOR BUSINESS OF HIRING OF VEHICLES EVEN THEN THE EXPEND ITURE AS CLAIMED IS ALLOWABLE AS THE VEHICLES WERE USED FOR BUSINESS PU RPOSES. WE FIND THAT NO SUCH CLAIM WAS MADE BEFORE THE AUTH ORITIES BELOW. HOWEVER, IT WAS INCUMBENT UPON THE ASSESSEE TO SUP PORT THIS CLAIM WITH SOME EVIDENCE. MERELY, STATING THAT THE VEHICLES W ERE FOR BUSINESS PURPOSES, IN OUR VIEW, IT WOULD NOT BE SUFFICIENT TO ALLOW TH E CLAIM OF THE ASSESSEE. THEREFORE, IN THE ABSENCE OF MATERIAL EVIDENCES, TH E CLAIM OF THE ASSESSEE CAN NOT BE ALLOWED. THUS THESE GROUNDS OF ASSESSE ES APPEAL ARE DISMISSED. 38 THEREFORE, TAKING THE CONSISTENT VIEW AS FACTS ARE IDENTICAL IN ALL THESE YEARS ALSO AND NO CHANGE INTO THE FACTS AND CIRCUMSTANCES HAVE BEE N POINTED OUT BY EITHER OF THE PARTIES, WE HEREBY DISMISS ALL THE APPEALS OF THE A SSESSEE. 33. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 28/02/2 017. SD/- SD/- ( HKKXPUN ( DQY HKKJR ) ( BHAGCHAND) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 28/02/2016. POOJA/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI RAM SWAROOP MEENA, JAIPUR, SHR I RAM KARAN MEENA, JAIPUR AND SHRI DINESH MEENA, JAIPUR. 2. THE RESPONDENT THE JCIT(OSD)/ACIT, JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 908 (11)/JP/2013) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR