Shri Santosh Kumar Pandey, Auraiya V. DCIT, Agra

ITA 91/AGR/2008

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60142 (ITAT-AGRA)
• Duration Of Justice: 4 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-05-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 17-04-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 04-03-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: R C TOMAR I T P
• Keywords: Unexplained investment; Gift; Income from undisclosed sources; Search and seizure; Opportunity of being heard; Peak credit; Corroborative evidences; Valuation report; Onus to prove
• Section: 153A; 234B; 68; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NOS.42, 43, 41 & 95/AGR/2008 ASSESSMENT YEARS: 1999-2000, 2001-02, 2003-04 & 20 04-05 RESPECTIVELY DY. COMMISSIONER OF INCOME TAX-2, VS. SHRI S ANTOSH KUMAR PANDEY, AGRA. S/O. LATE SHRI BABU RAM PANDEY, JALAUN CHAURAHA, DISTT. AURAIYA. (PAN : AKWPP 0804 H). ITA NOS.56, 57, 91 & 145/AGR/2008 ASSESSMENT YEARS: 1999-2000, 2001-02, 2003-04 & 20 04-05 RESPECTIVELY SHRI SANTOSH KUMAR PANDEY, VS. DY. COMMISSIONER O F INCOME TAX-2, S/O. LATE SHRI BABU RAM PANDEY, AGRA. JALAUN CHAURAHA, DISTT. AURAIYA. (PAN : AKWPP 0804 H). ITA NOS.65 &127/AGR/2008 ASSESSMENT YEARS: 2000-01 & 2002-2003 RESPECTIVELY SHRI SANTOSH KUMAR PANDEY, VS. ASSTT.COMMISSIONER OF INCOME TAX-2, S/O. LATE SHRI BABU RAM PANDEY, AGRA. PANDEY, JALAUN CHAURAHA, DISTT. AURAIYA. (PAN : AKWPP 0804 H). (APPELLANTS) (RESPONDENTS) REVENUE BY : SHRI WASEEM ARSHAD, SR. D.R. ASSESSEE BY : SHRI R.C. TOMAR, I.T.P. ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 2 DATE OF HEARING : 17.04.2012 DATE OF PRONOUNCEMENT : 11.05.2012 ORDER PER A.L. GEHLOT, ACCOUNTANT MEMBER: ITA NOS.42, 43, 41, 95, 56, 57, 91 & 145/AGR/2008 A RE CROSS APPEALS FILED BY THE REVENUE AND ASSESSEE AGAINST DIFFERENT ORDER S DATED 30.11.2007, 30.11.2007, 31.12.2007 & 28.01.2008 RESPECTIVELY AN D ITA NOS.65 & 127/AGR/2008 ARE APPEALS FILED BY THE ASSESSEE AGAI NST DIFFERENT ORDERS DATED 30.11.2007 & 14.12.2007 RESPECTIVELY PASSED BY THE LD. CIT(A)-I, AGRA FOR THE ASSESSMENT YEARS 1999-2000, 2001-02, 2003-04, 2004- 05, 2000-01 & 2002-03 RESPECTIVELY. 2. SOME OF THE GROUNDS RAISED IN THESE APPEALS ARE BASED ON IDENTICAL SET OF FACTS. SINCE FACTS ARE IDENTICAL, THEREFORE, FOR T HE SAKE OF CONVENIENCE, THE FACTS NOTED IN ASSESSMENT YEAR 1999-2000 HAVE BEEN CONSID ERED FOR DECIDING THE COMMON GROUNDS RAISED IN THESE APPEALS. THE RELEVA NT GROUNDS RAISED IN CROSS APPEALS PERTAINING TO ASSESSMENT YEAR 1999-2000 ARE REPRODUCED AS UNDER :- ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 3 3. ARGUMENTATIVE GROUNDS HAVE BEEN RAISED ORIGINALL Y WHILE FILING THE APPEAL. HOWEVER, AT THE TIME OF HEARING, CONCISE GROUNDS HA VE BEEN FILED BY THE LD. AUTHORISED REPRESENTATIVE OF THE ASSESSEE WHICH ARE AS UNDER :- GROUNDS IN ITA NO.56/AGR/2008 BY THE ASSESSEE FOR A .Y. 1999-2000 :- 1. THAT THE CIT (A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF ` 2,02,000/- BY TREATING IT AS INCOME FROM UNDISCLOSE D SOURCES OUT OF AGRICULTURE INCOME SHOWN BY APPELLAN T AT ` 2,50,000/- 2. THAT THE LEARNED CIT (A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF ` 7,00,000/- MADE BY ASSESSING OFFICER OUT OF OPENING CAPITAL ACCOUNT BALANCE OF ` 17,97,500/- 3. THAT THE LEARNED CIT (A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF ` 5,00,000/- MADE BY ASSESSING OFFICER AS UNEXPLAINED ADDITION IN CAPITAL ACCOUNT DURING THE YEAR. 4. THAT THE INTEREST CHARGED U/S 234A, 234B AT ` 8,23,700/- AND ` 9,39,018/- IS ILLEGAL. 5. THAT THE APPELLANT PRAISED TO ADD OR ALTER ANY O THER GROUND OF APPEAL MAY BE WARRANTED. GROUNDS IN ITA NO.42/AGR/2008 BY THE REVENUE FOR A. Y. 1999-2000 1. THAT THE CIT(A)-I, AGRA HAS ERRED IN DELETING T HE ADDITION OF ` 10,97,500/- OUT OF TOTAL ADDITION OF ` 17,97,500/- MADE ON ACCOUNT OF UNEXPLAINED OPENING BALANCE IN THE CAPITAL A/C. ON 1.4.1998 WITHOUT APPRECIATING THE FACT THAT - ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 4 A. ON ONE HAND, THE CIT(A)-1, AGRA HAS CONFIRMED TH E ADDITION OF ` 2,02,000/- AS UNEXPLAINED INCOME FROM OTHER SOURCES , OUT OF AGRICULTURAL INCOME SHOWN AT ` 2,52,000/-, ON THE OTHER HAND, SHE HAS ACCEPTED THE OPENING CAPITAL BALANCE OF ` 10,97,500/- (INCLUDED IN ` 17,97,500/-) AS INVESTED IN HOUSE ( ` 8,35,000/-) AND IN JEWELLERY ( ` 2,62,500/-) OUT OF SAVINGS FROM AGRICULTURAL INCOME OF EARLIER YEARS WHICH IS CONTRARY TO HER EA RLIER FINDING: B. MEASURE PART OF AGRICULTURAL LAND WAS PURCHASED DURING THE FINANCIAL YEAR 1999-2000 RELEVANT TO A.Y. 2000-01 A ND IN SUBSEQUENT YEARS, THEREFORE, THE ASSESSEE COULD NOT HAVE SAVINGS OUT OF SUCH A HUGE AMOUNT OF ` 10,97,500/- OUT OF AGRICULTURAL INCOME OF EARLIER YEAR FOR INVESTMENT IN THE CONSTRUCTION OF HOUSE AND PURCHASE OF JEWELLERY; 2. THAT THE ORDER OF THE CIT(A)-1, AGRA BEING ERRON EOUS IN LAW AND ON FACTS BE SET-ASIDE AND THAT THE ORDER OF THE ASSESSING OFFICER BE RESTORED. 3. THAT THE APPELLANT CRAVES LEAVE TO ADD OR DELETE OR ALTER OR MODIFY ANY ONE OR MORE GROUND(S) DURING THE APPEAL PROCEEDINGS. 4. THE BRIEF FACTS OF THE CASE ARE THAT A SEARCH UN DER SECOND 132 OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) WAS CARRIED O UT ON 03.03.2005 AT THE RESIDENCE OF THE ASSESSEE. 5. FIRST WE TAKE UP THE APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 1999-2000 IN ITA NO.56/AGR/2008. THE BRIEF FACTS OF GROUND N O.1 OF THE ASSESSEES APPEAL ARE THAT THE ASSESSEE HAS DECLARED AGRICULTURAL INC OME IN THE RETURN OF INCOME AT ` 2,50,000/- FOR ASSESSMENT YEAR 1999-2000. DURING THE ASSESSMENT PROCEEDINGS, ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 5 THE ASSESSING OFFICER ASKED THE ASSESSEE ABOUT THE DOCUMENTARY EVIDENCE WITH DETAILS OF AGRICULTURAL PRODUCE, SALE AND EXPENSES. BEFORE THE ASSESSING OFFICER, THE ASSESSEE SUBMITTED THAT THE ASSESSEE ALONGWITH TWO BROTHERS HELD AGRICULTURAL LAND IN THEIR JOINT NAMES. THEIR ESTIMATED AGRICUL TURAL INCOME WAS ` 3,00,000/- TO ` 4,00,000/-. REGARDING THE DETAILS OF AGRICULTURAL PRODUCE, SALE, CULTIVATION AND SELLING EXPENSES, IT WAS SUBMITTED BEFORE THE ASSES SING OFFICER THAT THESE DETAILS WERE NEVER KEPT OR MAINTAINED BY THE ASSESSEE AS PE R THE PREVAILING PRACTICE IN THEIR VILLAGE. AFTER CONSIDERING THE ASSESSEES SUBMISSI ON, THE ASSESSING OFFICER NOTED THAT THE ASSESSEE WAS HAVING AGRICULTURAL HOLDING A BOUT 48 BIGHAS IN THE YEAR UNDER CONSIDERATION. HOWEVER, THE ASSESSEE DID NOT FURNI SH ANY DETAILS IN RESPECT OF THE AGRICULTURAL INCOME. THEREFORE, IN ABSENCE OF DETA ILS, THE ASSESSING OFFICER ESTIMATED AGRICULTURAL INCOME AT THE RATE OF ` 1,000/- PER BIGHA WHICH CAME TO ` 48,000/-, THUS, ` 2,02,000/- ( ` 2,50,000 ` 48,000) BEING DIFFERENCE OF AGRICULTURAL INCOME SHOWN BY THE ASSESSEE WAS TREATED BY THE ASS ESSING OFFICER AS INCOME FROM UNDISCLOSED SOURCES. THE CIT(A) CONFIRMED THE ORDER OF A.O. THE YEAR-WISE AGRICULTURAL INCOME DECLARED BY THE ASSESSEE AND AD DITION MADE BY THE ASSESSING OFFICER ARE AS UNDER :- A.Y. AGRICULTURAL INCOME AS PER DECLARATION A.O. DISALLOWED 1999-2000 2,50,000 2,02,000 2000-01 3,25,000 2,77,000 ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 6 2001-02 3,70,000 3,22,000 2002-03 3,75,000 3,27,000 2003-04 4,00,000/- 3,52,000 2004-05 3,75,000 3,23,500 6. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT THE ASSESSEE IS ONE OF THE CO-OWNER OF THE AGRICULTURAL LAND ALONGWITH HIS BRO THER SHRI SHREEDHAR PANDEY AND SHRI SURESH KUMAR PANDEY. LD. AUTHORISED REPRESENT ATIVE SUBMITTED THAT THE I.T.A.T. IN THE CASE OF SHREEDHAR PANDEY IN ITA NOS .155 TO 157/AGR/2008 & 164 TO 166/AGR/2008 ORDER DATED 14.08.2009, WHEREIN ON IDENTICAL SET OF FACTS ADDITION WAS DELETED ACCEPTING AGRICULTURAL INCOME DECLARED BY THE BROTHER OF THE ASSESSEE SHRI SHREEDHAR PANDEY AT ` 2,25,000/- FOR ASSESSMENT YEAR 1999-2000 AND ` 3,00,000/- FOR ASSESSMENT YEAR 2000-01. THE RELEV ANT FINDING OF THE I.T.A.T. IN THE CASE OF SHRI SHREEDHAR PANDEY IS REPRODUCED FRO M PARAGRAPH NO.7 OF THE ORDER AS UNDER :- 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PE RUSAL OF THE ORDER OF LD. CIT(A) CLEARLY SHOWS THAT THIS IS A CA SE OF SEARCH AND AS A CONSEQUENCE OF THE SEARCH THE ASSESSMENT HAS BEEN R EOPENED. IT IS ALSO NOTICED FROM PARA 3.2 OF THE ORDER OF LD. CIT( A) THAT THE ASSESSEE HAS PRODUCED SALE RECEIPTS OF MORE THAN RS.4,00,000 /- FOR HAVING SOLD AGRICULTURAL PRODUCE DURING DECEMBER 2007. DURING DECEMBER 2007 THE ASSESSEE HAD A MINIMUM OF 40 BIGHAS OF LAND. T HUS, EVEN IF THE AMOUNT OF RS.4,00,000/- IS DIVIDED BY THE AREA AS O WNED BY THE ASSESSEE, IT WOULD COME TO NEARLY RS.10,000/- PER B IGHA OF LAND. THIS SALE PROCEED IS THE GROSS RECEIPT OF THE ASSESSEE A ND EVEN AS PER THE P&L ACCOUNT OF THE ASSESSEE THE ASSESSEE IS SHOWING NEARLY 50% TO BE ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 7 THE EXPENDITURE FOR EARNING THE AGRICULTURAL INCOME . THIS INCOME IS ALSO FROM ONE CROP. BY APPLYING THIS RATE, IT SHOW S THAT THE ASSESSEE WAS ABLE TO GET ABOUT RS.5,000/- NET AGRICULTURAL I NCOME PER BIGHA OF LAND PER CROP. WHEN APPLYING THIS RATE, IT IS NOTI CED THAT THE ASSESSEE HAS DISCLOSED THE AGRICULTURAL INCOME WITHIN THE AC CEPTABLE MARGIN. OBVIOUSLY THE ASSESSEE COULD NOT HAVE CONTEMPLATED SEARCH. THE FACT THAT THE ASSESSEE HAS SHOWN AGRICULTURAL INCOME AND HAS PRODUCED THE AGRICULTURAL RECEIPTS ALSO SHOWS THAT THE ASSESSEE DOES HAVE AGRICULTURAL INCOME. THE AGRICULTURAL INCOME IN TH E YEAR ALSO WOULD NOT BE A FIXED AMOUNT. IN THE CIRCUMSTANCES, WE AR E OF THE VIEW THAT THE AGRICULTURAL INCOME AS DISCLOSED BY THE ASSESSE E BEING REASONABLE IS LIABLE TO BE ACCEPTED AND WE DO SO. IN THE CIRC UMSTANCES, THE FINDING OF THE LD. CIT(A) ON THIS ISSUE STANDS REVE RSED AND THE A.O. IS DIRECTED TO ACCEPT THE AGRICULTURAL INCOME AS DECLA RED BY THE ASSESSEE IN TOTAL. 7. THE LD. AUTHORISED REPRESENTATIVE FURTHER SUBMIT TED THAT THE ABOVE ORDER OF THE I.T.A.T. IN THE CASE OF SHREEDHAR PANDEY HAS BE EN FOLLOWED IN THE CASE OF ANOTHER BROTHER SHRI SURESH KUMAR PANDEY BY THE I.T .A.T. IN ITA NOS.167 TO 169/AGR/2008 ORDER DATED 29.10.2010. THE RELEVANT FINDING OF THE I.T.A.T. IN THAT CASE IS REPRODUCED AS UNDER :- WE HAVE CONSIDERED THE SUBMISSIONS OF THE ASSESSEE AND PERUSED THE MATERIAL ON RECORD AND WE FIND THAT IDE NTICAL ADDITIONS WERE MADE IN THE HANDS OF SHRI SRIDHAR PANDEY, BROT HER OF THE ASSESSEE. THE LD. CIT(A) ALSO CONFIRMED THE ADDITI ON SUSTAINED BY A.O. THE TRIBUNAL WHILE DECIDING THE APPEALS IN IT A NOS.155 TO 157/AGR/2009 VIDE ORDER DATE 14.08.2009 HAVE DELETE D THE ADDITIONS BY ALLOWING THE GROUNDS OF THE ASSESSEE FOR THE THR EE YEARS. THE FINDING OF THE TRIBUNAL HAVE BEEN RECORDED IN PARA 7. SINCE FACTS ARE IDENTICAL AND, THEREFORE, FOLLOWING THE ORDER OF TR IBUNAL IN THE CASE OF ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 8 BROTHER OF ASSESSEE, WE ALLOW THESE GROUNDS AND DIR ECT THE A.O. TO ACCEPT THE AGRICULTURAL INCOME AS DISCLOSED BY THE ASSESSEE. 8. THE LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHE R HAND, RELIED UPON THE ORDER OF CIT(A) AND SUBMITTED THAT THE ASSESSEE DID NOT FURNISH THE RELEVANT DETAILS OF CULTIVATION AND CROPS ETC. IN ABSENCE OF SUCH D ETAILS, THE ASSESSING OFFICER HAS RIGHTLY DISALLOWED THE CLAIM OF THE ASSESSEE TO THE EXTENT OF ` 2,02,000/- IN A.Y. 1999-2000. 9. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PAR TIES AND RECORDS PERUSED. WE NOTICE THAT ON IDENTICAL SET OF FACTS THE I.T.A. T., AGRA BENCH HAS DECIDED THE ISSUE IN THE CASE OF SHRI SRIDHAR PANDEY, A CO-OWNE R OF AGRICULTURAL LAND OF THE ASSESSEE. THE RELEVANT FINDING HAS BEEN REPRODUCED IN PARAGRAPH NO.6 OF THIS ORDER. THE I.T.A.T. IN THE CASE OF CO-OWNER SHRI SRIDHAR P ANDEY CAME TO THE CONCLUSION THAT THE ESTIMATION OF AGRICULTURAL LAND ABOUT ` 5,000/- NET AGRICULTURAL INCOME PER BIGHA OF LAND PER CO-PARTNER. THE ASSESSEE UNDER C ONSIDERATION HELD 48 BIGHA OF LAND. THUS, THE ESTIMATION OF AGRICULTURAL INCOME PER YEAR COMES TO ` 2,40,000/- (48 X 5000). AS PER COMPARATIVE CHART OF AGRICULTU RAL INCOME GIVEN IN PARAGRAPH NO.5, WE NOTICE THAT THE ASSESSEE HAS SHOWN EXCESSI VE AGRICULTURAL INCOME. UNDER THE FACTS AND CIRCUMSTANCES AND FOLLOWING THE ABOVE ORDER OF I.T.A.T., AGRA BENCH, THE AGRICULTURAL INCOME IS RESTRICTED TO ` 2,40,000/- PER YEAR. THUS, IN A.Y. ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 9 1999-2000 THE ASSESSEE HAS DECLARED EXCESS AGRICULT URAL INCOME BY ` 10,000/-. TO THE EXTEND OF ` 10,000/- ADDITION IS SUSTAINED INSTEAD OF ` 2,02,000/- ADDITION MADE BY THE ASSESSING OFFICER. THE ASSESSING OFFICER IS DIRECTED TO RECALCULATE THE EFFECT OF DISALLOWANCE ACCORDINGLY IN ALL THE YEARS UNDER APPEALS. 10. THE BRIEF FACTS IN RESPECT OF SECOND GROUND OF APPEAL OF ASSESSEE ARE THAT DURING THE ASSESSMENT PROCEEDINGS THE ASSESSING OFF ICER NOTICED THAT THE ASSESSEE HAS SHOWN ` 17,97,500/- AS OPENING CAPITAL BALANCE IN CAPITAL ACCOUNT AS ON 31.03.1999. THE ASSESSING OFFICER ASKED THE ASSESS EE TO EXPLAIN THE SOURCE OF DETAILS OF OPENING BALANCE AND CAPITAL ACCOUNT. IT WAS SUBMITTED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER THAT ` 10,97,500/- WERE OUT OF SAVINGS OF AGRICULTURAL INCOME OF EARLIER YEARS AND ` 7,00,000/- IS THE GIFT AMOUNT GIVEN IN CASH BY THE ASSESSEES FATHER LATE SHRI BABU RAM PANDEY, EXPIRE D IN MAY 1995. IT WAS ALSO SUBMITTED THAT THE ASSESSEE WAS IN SERVICE. HE GOT HIS SHARE OF INCOME FROM AGRICULTURAL LAND FROM HIS TWO BROTHERS EVERY YEAR WHICH HE KEPT WITH HIM AND INTRODUCED AS CAPITAL IN BEGINNING OF THE YEAR WITH A VIEW TO DO SOME BUSINESS WITH HIS BROTHERS AFTER THE RETIREMENT. THE ASSESSING O FFICER DID NOT ACCEPT THE ASSESSEES CONTENTION OBSERVING THAT THE ASSESSEE W AS KEEPING HUGE CASH AND DID NOT KEEP IN BANK ACCOUNT. AS REGARDS CASH GIFT OF ` 7,00,000/- FROM ASSESSEES FATHER IN 1995, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE COULD NOT PRODUCE ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 10 ANY DOCUMENTARY EVIDENCE IN SUPPORT OF THE CLAIM L IKE GIFT DEED OR REGISTERED DEED ETC. IN ABSENCE OF SUCH DETAILS, THE ASSESSING OFF ICER MADE THE ADDITION OF ` 17,97,500/-. THE CIT(A) ALLOWED RELIEF OF ` 10,97,500/- AND SUSTAINED THE ADDITION OF ` 7,00,000/- AS UNDER :- I HAVE CONSIDERED THE RIVAL CONTENTIONS AND MY OBS ERVATIONS ARE AS UNDER :- - THE OPENING BALANCE OF ` 17,97,500/- INCLUDES INVESTMENT OF ` 8.35500 (CORRECT AMOUNT IS ` 8,35,000) IN RESIDENTIAL HOUSE AS ON 1.4.98 WHICH IS ALSO SUPPORTED BY THE REPORT OF THE DEPARTMENTAL VALUATION OFFICER DATED 27.11.2006. H ENCE, THE ADDITION OF ` 17,97,500/- IS REDUCED TO THE EXTENT OF ` 8,35,500/- ON THIS COUNT. - COST OF OLD JEWELLERY SHOWN AT ` 2,62,500/- AS PART OF THE ABOVE IMPUGNED AMOUNT OF ` 17,97,500/-, HAS BEEN SEPARATELY TREATED AS THE APPELLANTS UNEXPLAINED INVESTMENT AND TAXED ACCORDINGLY. HENCE, THE ADDITION OF ` 17,97,500/- DESERVES TO BE REDUCED BY THIS AMOUNT OF ` 2,62,500/-. - AS REGARDS CASH GIFT OF ` 7,00,000/- CLAIMED TO HAVE BEEN RECEIVED FROM THE APPELLANTS FATHER, AS OBSERVED B Y THE ASSESSING OFFICER, THERE IS NO SUPPORTING EVIDENCE FOR THE SAME. IN FACT, THERE IS NO BASIS FOR ARRIVING AT THE CONC LUSION THAT THE APPELLANT HAD CASH IN HAND OF ` 14,82,540/- AS ON 31.3.99, SINCE THE ENTIRE ACCOUNTS HAVE BEEN PREPARED AFTER THE SEARCH AND SEIZURE OPERATIONS, ON THE BASIS OF MATERIAL DE TECTED AS A RESULT OF THE SEARCH. THEREFORE, THE ADDITION OF ` 17,97,500/- IS CONFIRMED TO THE EXTENT OF ` 7,00,000/-. ACCORDINGLY THE APPELLANT GETS RELIEF OF ` 10,97,500/-. ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 11 11. SINCE THE CIT(A) HAS ALLOWED PART RELIEF, THERE FORE, THE ASSESSEE VIDE GROUND NO.2 AND REVENUE VIDE GROUND NO.1 ARE IN APPEAL BEF ORE US. 12. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PA RTIES AND RECORDS PERUSED. WE FIND THAT THE CIT(A) HAS RIGHTLY DELETED THE ADD ITION OF ` 10,97,500/- ON THE BASIS OF THE FACT THAT THE ADDITION OF ` 10,97,500/- PERTAINED TO OLD INVESTMENT IN BUILDING ` 8,35,000/- AND IN JEWELLERY ` 2,62,500/-. THE INVESTMENT DID NOT PERTAIN TO THE YEAR UNDER CONSIDERATION. THE ASSES SEE HAS FURNISHED SUPPORTING EVIDENCES IN THE FORM OF VALUATION REPORT IN RESPEC T OF BUILDING AND STATEMENT OF SMT. ASHA DEVI PANDEY RECORDED AT THE TIME OF SEARC H THAT JEWELLERY WAS OLD. 13. IN RESPECT OF ADDITION OF ` 7,00,000/- SUSTAINED BY THE CIT(A), WE FIND THAT THE CIT(A) HAS RIGHTLY SUSTAINED THE ADDITION AS TH E ASSESSEE FAILED TO PRODUCE ANY EVIDENCE. THOUGH THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT THE ISSUE IS COVERED BY THE ORDER OF I.T.A.T. IN THE CASE OF SHR I SURESH KUMAR PANDEY WHEREIN SIMILAR GIFT CLAIM OF ` 7,00,000/- WAS MADE BY THE ASSESSEE BUT THE I.T.A.T . HAS ACCEPTED ` 5,00,000/-. THIS CONTENTION OF THE LD. AUTHORISED REPRESENTATIVE ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 12 CANNOT BE ACCEPTED AS THE ASSESSEE DID NOT FURNISH ANY EVIDENCE EITHER BEFORE THE ASSESSING OFFICER OR BEFORE THE CIT(A) OR BEFORE US . WITHOUT EVIDENCE, THE CLAIM OF THE ASSESSEE THAT HE RECEIVED ` 7,00,000/- GIFT FROM FATHER CANNOT BE ACCEPTED. THE ASSESSEE HAS FAILED TO FURNISH ANY EVIDENCE. I N THE LIGHT OF THE FACT, IT CANNOT BE SAID THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF I.T.A.T., AGRA BENCH. UNDER THE FACTS AND CIRCUMSTANCES AND IN THE LIGHT OF ABOVE DISCUSSIONS, WE CONFIRM THE ORDER OF CIT(A). 14. AS REGARDS THE FIRST GROUND OF REVENUES APPEAL , WE DO NOT FIND SUBSTANCE AS THE CIT(A) RECORDED THE FACT THAT THE OPENING BALAN CE INCLUDED INVESTMENT IN HOUSE OF ` 8,35,500/- AS ON 01.04.1998 ACCORDING TO THE REPORT OF THE DEPARTMENTAL VALUATION OFFICER DATED 27 TH NOVEMBER, 2006. THUS, THE INVESTMENT IN BUILDING WAS NOT IN THE YEAR UNDER CONSIDERATION. AS REGARDS JEWELLERY OF ` 2,62,500/-, THE CIT(A) HELD THAT THE AMOUNT OF JEWELLERY HAS BEEN S EPARATELY DEALT WITH BY HIM. THEREFORE, ADDITION IN OPENING CAPITAL ACCOUNT WAS NOT SUSTAINABLE. THE CIT(A) DEALT WITH THE ISSUE OF JEWELLERY AND DECIDED AS UN DER :- ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 13 5. IN THIS GROUND THE APPELLANT HAD DISPUTED THE A DDITION OF ` 2,62,500/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN JEWELLERY STATING THAT THIS JEWELLERY WAS FOUND FROM THE LOCKER IN TH E NAME OF THE APPELLANTS MOTHER SMT. BUDHA DEVI & HIS WIFE SMT.A SHA PANDEY. THE JEWELLERY IS OLD AND WEIGHING ONLY 700 GMS. HE NCE, NO INFERENCE CAN BE DRAWN THAT THE JEWELLERY WAS ACQUIRED IN THE PERIOD RELEVANT TO A.Y. 99-2000. 5.1 I HAVE CONSIDERED THE RIVAL CONTENTIONS AND FIN D THE APPELLANTS ARGUMENTS TO BE TENABLE FOR THE FOLLOWING REASONS- - THE JEWELLERY IS ADMITTEDLY OLD AND THERE IS NO E VIDENCE OF ITS ACQUISITION DURING THE RELEVANT PERIOD. - CONSIDERING THAT THE SAID JEWELLERY OF 700 GMS. C OMPRISES JEWELLERY BELONGING TO THE APPELLANTS MOTHER AND W IFE AND CONSIDERING INDIAN TRADITIONS AND CUSTOMS, SUCH JEW ELLERY DOES NOT APPEAR TO BE EXCESSIVE. - THIS IS THE ONLY JEWELLERY FOUND IN THE PREMISES OF THE APPELLANT. ADDITION OF ` 3,36,900/- HAS BEEN MADE IN A.Y. 05-06 ON ACCOUNT OF UNEXPLAINED INVESTMENT IN JEWELLERY. TH US, BOTH IN VIEW OF THE ADDITION BASED ON NOTING IN SEIZED PAPE RS AND ALSO IN VIEW OF THE PROVISIONS OF SECTION 69, ADDITION O F ` 2,62,500/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN JEWELLERY I S NOT JUSTIFIED IN THIS YEAR, EVEN THOUGH SO SHOWN BY THE APPELLANT IN HIS BALANCE SHEET, WHICH IS WITHOUT ANY BASIS WHATS OEVER. IN VIEW OF THE FOREGOING REASONS, ADDITION OF ` 2,62,500/- IS HEREBY DELETED. 15. ON PERUSAL OF THE ORDER OF CIT(A), WE NOTICE TH AT THE CIT(A) HAS GIVEN FINDING THAT THERE IS NO MATERIAL TO SHOW THAT JEWE LLERY WAS ACQUIRED DURING THE ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 14 YEAR. IN ADDITION TO THAT, THE ADDITION OF ` 3,36,900/- HAS BEEN MADE IN A.Y. 2005- 06 ON ACCOUNT OF UNEXPLAINED INVESTMENT IN JEWELLER Y. IN THE LIGHT OF THE FACT, WE FIND THAT THE CIT(A) HAS RIGHTLY DELETED THE ADDITI ON OF ` 10,97,500/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF OPENING BALANCE IN CAPITAL ACCOUNT. 16. THE BRIEF FACTS OF GROUND NO.3 OF ASSESSEES AP PEAL ARE THAT DURING THE ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTICE D FROM THE CAPITAL ACCOUNT THAT THE ASSESSEE HAS ADDED ` 5,00,000/- IN CAPITAL ACCOUNT DURING THE YEAR UNDER CONSIDERATION. THE SUBMISSION OF THE ASSESSEE THAT ` 5,00,000/- WAS DEPOSITED OUT OF RETIREMENT BENEFITS RECEIVED TO THE ASSESSEE ON RETIREMENT FROM MILITARY SERVICE ON 30 TH NOVEMBER, 1998. THE ASSESSING OFFICER DID NOT ACC EPT THE ASSESSEES CONTENTION OBSERVING THAT THE ASSESSEE FAILED TO FU RNISH DOCUMENTARY EVIDENCE ACCEPTING THE ASSESSEES CONTENTION THAT AS THE GOV ERNMENT DEPARTMENT ALWAYS GIVES RETIREMENT BENEFIT THROUGH ACCOUNT PAYEE CHEQ UE AND NOT IN CASH. THE ASSESSEE DID NOT FURNISH ANY EVIDENCE IN SUPPORT OF HIS CONTENTION. THE ASSESSING OFFICER MADE ADDITION OF ` 5,00,000/- ON THE GROUND THAT THE ASSESSEE COULD NO T DISCHARGE HIS ONUS TO EXPLAIN THE SOURCE OF MONEY D EPOSITED IN HIS CAPITAL ACCOUNT. THE CIT(A) CONFIRMED THE ADDITION AS UNDER :- ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 15 I HAVE CONSIDERED THE RIVAL CONTENTIONS AND FIND T HAT THE APPELLANT HAS BEEN UNABLE TO FURNISH ANY EVIDENCE O F RECEIPT OF RETIREMENT BENEFITS TO THE EXTENT OF ` 3,36,745/- FROM THE ARMY CLAIMED BY HIM. HENCE, ADDITION TO SUCH EXTENT IS CONFIRMED. AS REGARDS HIS CLAIM THAT CREDIT OF TELESCOPING SHOULD BE ALLOWED TO HIM FOR THE REMAINING ` 1,63,255/- AGAINST AGRICULTURAL INCOME OF ` 2,50,000/-, TREATED AS INCOME FROM UNDISCLOSED SOUR CES BY THE A.O., THE SAME IS FOUND TO BE UNTENABLE. IN HIS ACCOUNTS , THE APPELLANT HAS SHOWN THE SAID DEPOSIT OF ` 5,00,000/- IN HIS CAPITAL ACCOUNT WHEREAS AGRICULTURAL INCOME OF ` 2,50,000/- HAS BEEN SEPARATELY CREDITED TO THE P&L A/C AND THE NET PROFIT INCLUDING SUCH INCOM E AMOUNTING TO ` 3,01,000/- HAS BEEN TAKEN TO THE BALANCE SHEET AS O N 31.3.99 AND VARIOUS ASSETS AND INVESTMENTS ARE SHOWN AGAINST SU CH INCOME PLUS THE DEPOSIT OF ` 5,00,000/-,. HENCE, TELESCOPING OF DEPOSIT AGAINST AGRICULTURAL INCOME IS NOT PERMISSIBLE AS PER ACCOU NTING PRINCIPLES. ACCORDINGLY, THE ENTIRE ADDITION OF ` 5,00,000/- IS HEREBY CONFIRMED. 17. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PA RTIES AND RECORDS PERUSED. THOUGH IT WAS CONTENDED BY THE ASSESSEE THAT THE SA ID AMOUNT OF ` 5,00,000/- WAS DEPOSITED OUT OF RETIREMENT BENEFIT, INSURANCE MONE Y AND AGRICULTURAL INCOME BUT THE ASSESSEE HAS FAILED TO EXPLAIN HOW THIS AMOUNT OF ` 5,00,000/- HAS BEEN SHOWN SEPARATELY IN CAPITAL ACCOUNT WITHOUT CORROBORATING BY EVIDENCE, BANK ACCOUNT AND OTHERS, THE CONTENTION OF THE ASSESSEE CANNOT BE AC CEPTED. EVEN ON PERUSAL OF BALANCE SHEET AS ON 31.03.1999 OF WHICH COPY IS PLA CED AT PAGE NO.28, WE DO NOT FIND ANY BANK ACCOUNT IN THE BALANCE SHEET OF THE A SSESSEE. THE ASSESSING OFFICER MADE ADDITION FOR WANT OF SATISFACTORY EXPLANATION AND FAILURE IN DISCHARGING ONUS. THE SAME POSITION WAS BEFORE THE CIT(A) AND BEFORE US. IN ABSENCE OF SATISFACTORY ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 16 EXPLANATION, WE DO NOT WANT TO INTERFERE WITH THE F INDING OF THE CIT(A) ON THE ISSUE. THEREFORE, THE ADDITION OF ` 5,00,000/- IS SUSTAINED. 18. THE GROUND NO.4 OF ASSESSEES APPEAL IS IN RESP ECT OF CHARGING OF INTEREST UNDER SECTION 234A & 234B OF THE ACT WHICH IS CONSE QUENTIAL IN NATURE. THE ASSESSING OFFICER IS DIRECTED ACCORDINGLY. 19. IN THE RESULT, ITA NO.56/AGR/2008 FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 1999-2000 IS PARTLY ALLOWED. ITA NO.42/AGR/2008 BY THE REVENUE FOR A.Y. 1999-200 0 20. THE ISSUE RAISED IN THE GROUND OF REVENUES APP EAL EFFECTIVELY IS IN RESPECT OF DELETION OF ADDITION OF ` 10,97,500/- OUT OF ADDITION OF ` 17,97,500/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED OPE NING BALANCE IN CAPITAL ACCOUNT. THIS ISSUE HAS BEEN DECIDED IN GROUND NO. 2 OF ASSESSEES APPEAL VIDE PARAGRAPH NOS.12 & 13 OF THIS ORDER. AFTER A DETAI LED DISCUSSION, WE CONFIRMED THE ORDER OF CIT(A). IN THE LIGHT OF THE FACTS, THE EF FECTIVE GROUND RAISED IN REVENUES APPEAL IS DISMISSED. ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 17 21. IN THE RESULT, ITA NO.42/AGR/2008 FILED BY THE REVENUE FOR ASSESSMENT YEAR 1999-2000 IS DISMISSED. ITA NO.65/AGR/2008 BY THE ASSESSEE FOR A.Y. 2000-01 22. THE SOLE EFFECTIVE GROUND RAISED IN THIS APPEAL FILED BY THE ASSESSEE IS IN RESPECT OF ADDITION OF ` 2,77,000/- TREATING IT AS INCOME FROM UNDISCLOSED S OURCES OUT OF AGRICULTURAL INCOME SHOWN BY THE ASSESSEE OF ` 3,25,000/-. 23. THIS ISSUE HAS BEEN DECIDED BY US WHILE DEALING GROUND NO.1 IN ASSESSEES APPEAL NO.42/AGR/2008 FOR ASSESSMENT YEAR 1999-2000 . IN THE LIGHT OF THE DETAILED DISCUSSIONS MADE IN PARAGRAPH NO.9 OF THIS ORDER, THIS GROUND OF ASSESSEES APPEAL IS DECIDED ACCORDINGLY. THE ASSESSING OFFIC ER IS DIRECTED ACCORDINGLY. 24. THE SECOND GROUND OF ASSESSEES APPEAL IS IN RE SPECT OF CHARGING OF INTEREST UNDER SECTION 234A & 234B OF THE ACT WHICH IS CONSE QUENTIAL IN NATURE. THE ASSESSING OFFICER IS DIRECTED ACCORDINGLY. ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 18 25. IN THE RESULT, ITA NO.65/AGR/2008 FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2000-01 IS PARTLY ALLOWED. ITA NO.43/AGR/2008 BY THE REVENUE FOR A.Y. 2001-02 26. THE SOLE EFFECTIVE GROUND RAISED IN REVENUES A PPEAL IS IN RESPECT OF DELETION OF ADDITION OF ` 2,78,960/- MADE ON ACCOUNT OF INTEREST ON ADVANCES. THE BRIEF FACTS OF THE ISSUE ARE THAT SURVEY UNDER SECTION 13 2 OF THE ACT WAS CARRIED OUT ON 03.03.2005. THE ASSESSING OFFICER ASKED THE ASSESS EE TO EXPLAIN THE SOURCE OF ADVANCES TOTALING TO ` 7,74,890/- MENTIONED IN ANNXURE-BK-15 AND WORK OUT THE AMOUNT OF INTEREST THEREON. THE ASSESSEE EXPLAINED THAT THE MONEY WAS DEPOSITED BY THE VILLAGERS WITH THE ASSESSEE FOR THE SAFE CUS TODY WHICH WAS SHOWN IN THE DIARY WITH NOTATION ADHA MURDA OR ZINDA. THE A SSESSING OFFICER AFTER CONSIDERING THE ASSESSEES EXPLANATION FOUND THAT T HE ASSESSEE CARRIES ON BUSINESS OF MONEY LENDING. AS THE ASSESSEE HIMSELF ADMITTED TO HAVE GIVEN MONEY AS LOAN TO THE NEEDY PERSONS OUT OF HIS SAVINGS AND AGRICUL TURAL INCOME, THE ASSESSING OFFICER NOTED THAT SUCH ADVANCES AS PER PAGE NOS.24 , 25, 26 & 27 CAME TO ` 7,74,890/- WHICH AS PER ANNEXURE-BK-15 WAS GIVEN AS LOAN. THE ASSESSEE HAS CALCULATED INTEREST @ 36% ON A SUM OF ` 1,12,600/- AND WORKED OUT INTEREST OF ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 19 ` 40,536/- FOR THE WHOLE YEAR. THE ASSESSING OFFICER DID NOT ACCEPT THE ASSESSEES CALCULATION. THE ASSESSING OFFICER MADE THE ADDITI ON OF RS.7,74,890/- AS THE SOURCE OF ADVANCES REMAINED UNEXPLAINED. THE ASSES SING OFFICER CALCULATED INTEREST ON THE SAID AMOUNT OF ` 2,78,960/-. THUS, THE ASSESSING OFFICER MADE THE TOTAL ADDITION OF ` 10,53,850/-. 27. THE CIT(A) CONFIRMED THE ADDITION OF ` 7,74,890/-AND DELETED THE INTEREST ADDITION OBSERVING THAT THE ASSESSING OFFICER WAS N OT JUSTIFIED IN CALCULATING THE ADDITIONAL INTEREST ACCRUED AND RECEIVED IN SEIZED BOOKS. THE CIT(A) HAS ALSO RECORDED ONE MORE FACT BY ACCEPTING THE ASSESSEES CONTENTION THAT THE SAID AMOUNT OF ` 7,74,890/- INCLUDES PRINCIPAL AMOUNT AS WELL AS INT EREST AMOUNT. IT HAS ALSO BEEN RECORDED BY THE CIT(A) THAT THERE ARE NO ENTRI ES OR INDICATION OF ADDITIONAL INTEREST ACCRUED AND RECEIVED IN THE SEIZED BOOKS. 28. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PA RTIES AND RECORDS PERUSED. THIS IS ADMITTED FACT THAT SEIZED BOOK ANNEXURE BK- 15 WAS FOUND AT THE TIME OF SEARCH WHEREIN ENTRIES OF ADVANCES OF ` 7,74,890/- WAS RECORDED. THE SAID DOCUMENT DOES NOT CARRY ANY ENTRY OR INDICATION AS NOTED BY THE CIT(A) IN RESPECT OF INTEREST TRANSACTION ON THE SAID ADVANCES. THE CIT(A) ACCEPTED THE ASSESSEES ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 20 CONTENTION THAT THE SAID AMOUNT OF ` 7,74,890/- IS BOTH PRINCIPAL AND INTEREST AMOUNT. WE FIND THAT THE ORDER OF CIT(A) IS A REAS ONED ORDER AS DURING THE COURSE OF SEARCH SEIZED BOOK BK-15 CONTAINED ONLY ` 7,74,890/- AND THERE IS NO MATERIAL FOUND THAT THE ASSESSEE HAS CHARGED INTEREST SEPARA TELY. THE CALCULATION OF INTEREST BY THE ASSESSING OFFICER WAS ON PRESUMPTION BASIS. THE REVENUE HAS FAILED TO CONTROVERT THE EXPLANATION OF THE ASSESSEE THAT THE SAID AMOUNT OF ` 7,74,890/- DID NOT INCLUDE INTEREST AMOUNT. IN THE LIGHT OF THE F ACTS, WE FIND THAT THE CIT(A) HAS RIGHTLY DELETED THE ADDITION ON ACCOUNT OF INTEREST ` 2,78,960/- AND HAS RIGHTLY CONFIRMED THE ADDITION OF ` 7,74,890/-. 29. IN THE RESULT, ITA NO.43/AGR/2008 FILED BY THE REVENUE FOR ASSESSMENT YEAR 2001-02 IS DISMISSED. ITA NO.57/AGR/2008 BY THE ASSESSEE FOR A.Y. 2001-02 30. THE FIRST GROUND RAISED IN THE APPEAL FILED BY THE ASSESSEE IS IN RESPECT OF AGRICULTURAL INCOME. THIS ISSUE HAS ALREADY BEEN D ECIDED BY US WHILE DEALING ASSESSEES APPEAL FOR ASSESSMENT YEAR 1999-2000. I N THE LIGHT OF THE DETAILED DISCUSSIONS MADE IN PARAGRAPH NO.9 OF THIS ORDER, T HIS GROUND OF ASSESSEES APPEAL IS ALSO DECIDED ACCORDINGLY. THE ASSESSING OFFICER IS DIRECTED ACCORDINGLY. ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 21 31. THE SECOND GROUND OF ASSESSEES APPEAL IS IN RE SPECT OF ADDITION OF ` 6,00,000/- ON ACCOUNT OF PURCHASE OF SCORPIO CAR NO .UP79-2100. 32. THE BRIEF FACTS OF THIS ISSUE ARE THAT DURING T HE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER ASKED THE ASSESSEE TO FURNISH THE DETAILS OF VEHICLE PURCHASED AND THE INVESTMENT MADE THEREIN. THE ASSESSEE DENIED T O HAVE PURCHASED ANY VEHICLE DURING THE YEAR UNDER CONSIDERATION EITHER IN HIS N AME OR IN THE NAME OF HIS FAMILY MEMBERS. HOWEVER, IN THE DETAILS OF VEHICLE, THE A SSESSING OFFICER NOTICED THAT THE ASSESSEE PURCHASED A SCORPIO CAR UP79-2100 IN T HE MONTH OF FEBRUARY, 2001 FOR ` 6,00,000/- THE PAYMENT OF WHICH WAS SHOWN TO BE MAD E IN CASH. THE ASSESSEE DID NOT OFFER ANY EXPLANATION WITH REGARD TO THE SO URCE OF THIS PAYMENT. THEREFORE, THE ASSESSING OFFICER MADE THE ADDITION OF ` 6,00,000/-. THE CIT(A) CONFIRMED THE SAID ADDITION AS THE ASSESSEE FAILED TO FURNISH SAT ISFACTORY EXPLANATION REGARDING THE SOURCE OF PURCHASE OF THE SAID CAR. HOWEVER, BEFOR E THE CIT(A) THE ASSESSEE CONTENDED THAT THE SAID CAR WAS PURCHASED THROUGH F INANCE FROM ITAWAH KSHETRIYA GRAMIN BANK BUT THE ASSESSEE FAILED TO FURNISH ANY EVIDENCE IN SUPPORT OF THE CLAIM EITHER BEFORE THE ASSESSING OFFICER OR BEFORE THE CIT(A). ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 22 33. LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT TH E CAR WAS PURCHASED THROUGH BANK FINANCE FROM ITAWAH KSHETRIYA GRAMIN BANK. TH E SAME FACT WAS SUBMITTED BEFORE THE ASSESSING OFFICER VIDE LETTER DATED 06.1 1.2006 OF WHICH COPY HAS BEEN PLACED AT PAGE NO.10 OF PAPER BOOK. THE CAR WAS FI NANCED ON 24.03.2003 WHICH IS RELEVANT TO THE ASSESSMENT YEAR 2003-04. THE LD. A UTHORISED REPRESENTATIVE HAS ALSO DRAWN OUR ATTENTION TO PAGE NO.11 REGARDING BA NK LOAN. 34. LD. DEPARTMENTAL REPRESENTATIVE RELIED UPON THE ORDER OF CIT(A) AND SUBMITTED THAT THE ASSESSEE HAS FAILED TO FURNISH T HE NECESSARY EVIDENCES IN SUPPORT OF SOURCE OF INVESTMENT MADE IN THE CAR PURCHASED. LD. DEPARTMENTAL REPRESENTATIVE FURTHER SUBMITTED THAT THE ASSESSEE HAS ALSO FAILED TO SUBMIT NECESSARY SUPPORTING EVIDENCES. HE FURTHER SUBMITT ED THAT MERELY ON THE BASIS OF BANK LOAN WITHOUT LINKING THAT THE SAID LOAN WAS GI VEN FOR PURCHASE OF IMPUGNED SCORPIO CAR, THE ASSESSEE FAILED TO FURNISH THE SOU RCE OF INVESTMENT. THEREFORE, ADDITION MAY BE CONFIRMED. 35. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PA RTIES AND RECORDS PERUSED. THE MATERIALS POINTED OUT BY THE LD. AUTHORISED REP RESENTATIVE IN RESPECT OF CONFIRMATION OF BANK STATEMENT, OF WHICH COPY HAS B EEN PLACED AT PAGE NO.7, ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 23 APPLICATION OF LOAN OF WHICH COPY IS PLACED AT PAGE NO.9, AND OTHER DOCUMENTS WHICH DOES NOT HELP THE ASSESSEE AS THE ASSESSEE FA ILED TO ESTABLISH HOW THESE DOCUMENTS ARE RELEVANT FOR PURCHASE OF SCORPIO CAR UP79-2100 WHICH HAS BEEN ADMITTED BY THE ASSESSEE HIMSELF IN THE STATEMENT R ECORDED ON 03.03.2005 IN REPLY TO QUESTION NO.4 THAT THE SAID CAR WAS PURCHASED BE FORE 2 OR 3 YEARS AND THE SAME WAS ADVANCED BY BANK. STATEMENT WAS RECORDED ON 03 .03.2005 WHEREIN IT WAS STATED THAT IT WAS PURCHASED BEFORE TWO TO THREE YE ARS. HOW THE LOAN SANCTIONED BY ITAWAH KSHETRIYA GRAMIN BANK WHICH HAS BEEN INFORME D BY THE BANK VIDE LETTER DATED 22.03.2000 IS RELATED TO THE PURCHASE OF THAT VERY CAR. IT IS SETTLED POSITION OF LAW THAT UNDER THESE CIRCUMSTANCES THE BURDEN LIES ON THE ASSESSEE TO PROVE THAT THE IMPUGNED CAR PURCHASED WAS OUT OF THE FINANCE GIVEN BY THE BANK (SUMATI DAYAL VS. CIT, 214 ITR 801 (SC). IN ANOTHER JUDGEMENT IN THE CASE OF CHUHARMAL VS. CIT, 172 ITR 250 (SC) WHEREIN IT HAS BEEN HELD THAT WHETHER ANY PERSON IS OWNER OF ANYTHING OF WHICH HE IS SHOWN TO BE IN POSSESSIO N, THE ONUS OF PROVING THAT HE IS NOT THE OWNER IS ON THE PERSON WHO AFFIRMS THAT HE IS NOT THE OWNER. THE MADRAS HIGH COURT IN THE CASE OF CIT VS. KRISHNAVENI AMMAL , 158 ITR 826 (MADRAS) HELD THAT THE LAW OF EVIDENCE MANDATES THAT IF THE BEST EVIDENCE IS NOT PLACED BEFORE THE COURT, AN ADVERSE INFERENCE CAN BE DRAWN AS AGAINST THE PERSON WHO OUGHT TO HAVE PRODUCED IT. IN THAT CASE, THERE WERE CROSSED CHEQ UES, BUT THEY WERE NOT PRODUCED. ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 24 SIMILARLY, IN THE CASE UNDER CONSIDERATION, THE ASS ESSEE FAILED TO FURNISH AN IMPORTANT DOCUMENT WHICH IS IN THE FORM OF REGISTRA TION OF THE IMPUGNED CAR WHICH IS ISSUED BY THE REGIONAL TRANSPORT AUTHORITY. IN THE LIGHT OF ABOVE DISCUSSIONS AND CONSIDERING THE TOTALITY OF THE FACTS OF THE CA SE, WE FIND THAT THE CIT(A) HAS RIGHTLY SUSTAINED THE ADDITION. ORDER OF THE CIT(A ) IS CONFIRMED ON THE ISSUE. 36. GROUND NO.3 OF ASSESSEES APPEAL IS IN RESPECT OF ADDITION OF RS.7,74,890/- CONFIRMED BY THE CIT(A) ON ACCOUNT OF UNEXPLAINED A DVANCES. 37. THE BRIEF FACTS OF THIS ISSUE HAS BEEN DISCUSSE D IN PARAGRAPH NOS.26 & 27 OF THIS ORDER WHILE DECIDING REVENUES APPEAL NO.43/AG R/2008 FOR ASSESSMENT YEAR 2001-02. THE LD. AUTHORISED REPRESENTATIVE CONCEDE D THAT THERE WERE ENTRIES FOUND IN ANNEXURE BK-15 WHICH ARE UNRECORDED TRANSA CTIONS OF THE ASSESSEE. HOWEVER, THE LD. AUTHORISED REPRESENTATIVE REFERRED PAGE NOS.41 TO 45 OF THE PAPER BOOK AND SUBMITTED THAT ALL THE ENTRIES PERTAINING TO THAT DIARY DOES NOT INVOLVE FINANCIAL TRANSACTION. SOME OF THE ENTRIES ARE IN RESPECT OF TELEPHONE NUMBER, SOME OF THE ENTRIES ARE REPEATED ENTRIES AND SOME O F THE ENTRIES RELATED TO SOME OTHER NOTING. LD. AUTHORISED REPRESENTATIVE SUBMIT TED THAT AFTER ANALYZING THE SAID DIARY, THE ADDITION SUSTAINABLE ON FINANCIAL TRANSA CTION IS ` 2,56,000/- FOR THE ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 25 ASSESSMENT YEAR 2000-01, ` 18,000/- FOR ASSESSMENT YEAR 2001-02 & ` 1,40,500/- FOR ASSESSMENT YEAR 2004-05. LD. AUTHORISED REPRES ENTATIVE SUBMITTED THAT THE ADDITION TO THAT EXTENT MAY BE SUSTAINED. 38. LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHER H AND, SUBMITTED THAT NO SUCH DETAILS WERE SUBMITTED BEFORE THE ASSESSING OFFICER NOR BEFORE THE CIT(A). THE ASSESSEE DID NOT FURNISH ANY EXPLANATION BEFORE THE REVENUE AUTHORITIES. 39. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PA RTIES AND RECORDS PERUSED. IT IS AN ADMITTED FACT THAT THE ASSESSEE DID NOT FURNI SH ANY EXPLANATION BEFORE THE REVENUE AUTHORITIES. HOWEVER, THE ASSESSEE IS EXAM INED AND ANALYZED AS RELEVANT ENTRIES OF BK-15, SEIZED DIARY, OF WHICH DETAILS HA S BEEN GIVEN FROM PAGE NOS. 41 TO 45 OF THE ASSESSEES PAPER BOOK. THE SAID DETAI LS OF SUBMISSION OF THE LD. AUTHORISED REPRESENTATIVE IS SUBJECT TO VERIFICATIO N. IN THE INTEREST OF JUSTICE, WE THINK IT PROPER TO SEND BACK THIS ISSUE TO THE FILE OF ASSESSING OFFICER WITH THE DIRECTION TO VERIFY THE CONTENTIONS AND EXPLANATION OF THE ASSESSEE AND THE SAID DETAILS PROVIDED IN PAGE NOS.41 TO 45 OF THE ASSESS EES PAPER BOOK AND DECIDE THE ISSUE IN ACCORDANCE WITH LAW. SINCE IT IS AN OLD M ATTER, IT IS RELEVANT TO MENTION HEREIN THAT IF THE ASSESSEE FAILS TO FURNISH NECESS ARY EXPLANATION AND SUPPORTING ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 26 EVIDENCES, THE ASSESSING OFFICER IS AT LIBERTY TO R EPEAT THE ADDITION IN ACCORDANCE WITH LAW AND BEFORE THAT THE ASSESSING OFFICER WILL PROVIDE A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 40. THE FOURTH GROUND OF ASSESSEES APPEAL IS IN RE SPECT OF CHARGING OF INTEREST UNDER SECTIONS 234A & 234B WHICH IS CONSEQUENTIAL I N NATURE. THE ASSESSING OFFICER IS DIRECTED ACCORDINGLY. 41. IN THE RESULT, ITA NO.57/AGR/2008 FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO.41/AGR/2008 BY THE REVENUE AND ITA NO.91/AGR /2008 BY THE ASSESSEE FOR A.Y. 2003-04. 42. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS IN ITS APPEAL:- 1. THAT THE CIT(A)-I, AGRA HAS ERRED IN LAW AND ON FACTS IN RESTRICTING THE ADDITION TO THE EXTENT OF ` 2,46,259/- OUT OF TOTAL ADDITION OF ` 18,85,437/- MADE ON ACCOUNT OF UNEXPLAINED PEAK DEP OSIT IN THE BANK, WITHOUT APPRECIATING THE FACTS OF THE CASE AND BRUSHING ASIDE THE REASONS DISCUSSED IN THE ASSESSMENT ORDER ; ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 27 2. THAT THE CIT(A)-I, AGRA HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF ` 16,39,178/- (I.E. ` 18,85,437/- MINUS ` 2,46,259/-) AFTER ENTERTAINING THE ADDITIONAL EVIDE NCE PRODUCED BEFORE HER VIOLATING OF RULE 46A OF I.T. RULES, 196 2 WHICH WAS NEVER PRODUCED BEFORE THE A.O.; 3. THAT THE ORDER OF THE CIT(A)-I, AGRA BEING ERRON EOUS IN LAW AND ON FACTS OF THE CASE BE SET-ASIDE AND THAT THE ORDER OF THE A.O. BE RESTORED. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD OR DELETE OR ALTER OR MODIFY ANY ONE OR MORE GROUND(S) DURING THE APPEAL PROCEEDINGS. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN I TS APPEAL:- 1. THAT THE LEARNED CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF ` 352000 BY TREATING THE INCOME FROM UNDISCLOSED SOURCES OUT OF AGRICULTURE INCOME SHOWN BY APPELLANT AT ` 4 LAKH. 2. THAT THE LEARNED CIT(A) HAS ERRED ON FACTS AND I N LAW IN CONFIRMING THE ADDITION OF ` 246759 OUT OF ADDITION OF ` 1885437 MADE BY THE ASSESSING OFFICER AS UNEXPLAINED PEAK D EPOSIT. 3. THAT THE LD CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF ` 50000 AS UNEXPLAINED HOUSE HOLD EXPENSES OVER AND ABOVE ` 170000 SHOWN BY APPELLANT. 4. THAT THE LD CIT(A) HAS ERRED ON FACTS AND IN LAW IN SUSTAINING THE ADDITION OF ` 9300 AS FICTITIOUS LIABILITY DULY INCLUDED IN INTT. INCOME OF 15021 CREDITED IN P&L A/C. 5. THAT THE INTEREST CHARGED U/S 234A, 234B AND 234 C IS ILLEGAL. 6. THAT THE APPELLANT CRAVES TO ADD OR ALTER ANY OT HER GROUND OF APPEAL AS MAY BE WARRANTED. ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 28 43. GROUND NO.1 OF REVENUES APPEAL AND GROUND NO.2 OF ASSESSEES APPEAL ARE IN RESPECT OF RESTRICTING THE ADDITION TO THE EXTEN T OF RS.2,46,259/-. 44. THE BRIEF FACTS OF THIS ISSUE ARE THAT DURING T HE ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS DEP OSITED IN BANK ACCOUNT NO.5708 IN ETAWAH KSHETRIYA GRAMIN BANK AURAIYA WHICH IS IN THE NAME OF THE ASSESSEE. THE ASSESSING OFFICER ASKED THE ASSESSEE TO EXPLAIN WHY PEAK OF BANK DEPOSIT FOR ASSESSMENT YEAR 1999-2000 TO 2005-2006 SHOULD NOT B E ADDED IN RESPECTIVE ASSESSMENT YEARS. THE ASSESSEE SUBMITTED BEFORE TH E ASSESSING OFFICER THAT THE ASSESSEE HAS DEPOSITED THE CASH RELATING TO AGRICUL TURAL RECEIPT AS WELL AS BUSINESS IN HIS BANK ACCOUNT FROM TIME TO TIME WHICH HAS DUL Y BEEN ACCOUNTED FOR IN ACCOUNTS. THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE ASSESSEES EXPLANATION. HE, THEREFORE, MADE THE ADDITION OF RS.18,85,437/-, THE AMOUNT OF PEAK DEPOSIT. THE CIT(A) EXAMINED THE ISSUE FROM PAGE NOS.3 TO 8 AND RESTRICTED THE ADDITION TO THE EXTENT OF RS.2,46,259/-. THE RELEVANT FINDING OF CIT(A) FROM PAGE NOS.7 & 8 ARE REPRODUCED AS UNDER :- (CIT(A) PARA 4.3) I HAVE CONSIDERED THE RIVAL CONTENTIONS AND FIND THAT THE PEAK DEPOSITS IN THE VARIOUS BANK ACCOUNTS BELONGING TO THE APPELLANT AND HIS FAMILY MEMBERS AGGREGATES TO APPROXIMATELY ` 18,85,437/-. AT THE SAME TIME, THE APPELLANT HAS SOUGHT TELESCOPING OF THIS AMOUNT AGAINST THE AGGREGATE OF CONTRACT RECEIPTS AND AGRI CULTURAL RECEIPTS OF ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 29 ` 17,35,200/-. THE CLAIM OF THE APPELLANT IS NOT FUL LY TENABLE SINCE THE CONCEPT OF PEAK DEPOSIT PRESUPPOSES REDEPOSIT OUT O F WITHDRAWALS WHEREAS IN THE APPELLANTS CASH, EVIDENTLY AND ADMI TTEDLY THE WITHDRAWALS HAVE BEEN MADE FOR INCURRING BUSINESS E XPENSES, PERSONAL EXPENSES AND EXPENSES FOR AGRICULTURAL. H ENCE, THERE IS NO SCOPE OF REDEPOSIT OUT OF WITHDRAWALS. THUS, THE W ITHDRAWALS HAVING BEEN EXPENDED FOR VARIOUS PURPOSES, THE DEPOSITS IN THE BANK ACCOUNTS ARE FRESH DEPOSITS. HENCE, THE CONCEPT OF PEAK DEP OSIT IS NOT APPLICABLE AT ALL IN THE APPELLANTS CASE. WHAT IS REQUIRED TO BE SEEN IN THE APPELLANTS CASE IS WHETHER THE TOTAL DEPOSI TS IN THE BANK ACCOUNTS EXCEED THE ACCOUNTED FUNDS AVAILABLE WITH THE APPELLANT. IN THIS CONTEXT IT IS OBSERVED THAT THE ACCRETION TO T HE CAPITAL OF THE APPELLANT DURING THIS YEAR IS ONLY ON A/C OF THE PR OFIT OF THE YEAR. THIS IS EVIDENT FROM THE FACT THAT THE TOTAL OF THE BALA NCE SHEET IS ` 37,11,789/- AS ON 31.03.2002 AND ` 41,01,955/- ON 31.03.2003, THE DIFFERENCE BEING ` 3,90,166/-. THUS, THE NET ACCRETION TO CAPITAL IS ` 3,90,166/-. (NET PROFIT ` 5,60,166/- PLUS PENSION ` 29,540/-LESS WITHDRAWALS ` 1,70,000/). FURTHER, THE CASH IN HAND AS ON 31.03. 2002 WHICH IS ` 17,33,238/-, HAS REDUCED TO ` 9,25,581.50 AS ON 31.03.2003. HENCE, UTILIZATION OF CASH TO SUCH EXTENT I.E. ` 8,07,157/- ( ` 17,33,238 - ` 9,25,581.50) DURING THE YEAR CAN BE PRESUMED. ACCO RDINGLY TOTAL FUNDS AVAILABLE DURING THE YEAR ARE AS UNDER :- AGRICULTURAL RECEIPTS 7,45,600/- CONTRACT RECEIPTS 9,89,600/- CASH UTILISED 8,07,657/- ------------- 25,42,857/- AS AGAINST THE ABOVE FUNDS AVAILABLE, THE APPELLANT HAS DEPOSITED THE FOLLOWING AMOUNTS IN THE VARIOUS BANK ACCOUNTS :- A/C NO.9786 C.B.I., KHANPUR 2,24,000/.- A/C NO.6403 6,00,500/- A/C NO.5708 19,64,616/- --------------- 27,89,116/- ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 30 THUS, THERE IS EXCESS DEPOSIT OF ` 2,46,259/- (27,89,116 - 25,42,857) THE ABOVE DEPOSIT IS UNEXPLAINED AS TO ITS SOURCE A ND THEREFORE DEEMED TO BE THE APPELLANTS INCOME. THE ADDITION OF ` 18,85,437/- IS ACCORDINGLY RESTRICTED TO ` 2,46,259/-. 45. LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT TH E CIT(A) IS NOT CORRECT IN CALCULATING OF PEAK AMOUNT. LD. AUTHORISED REPRESE NTATIVE POINTED OUT THAT AS PER THE ASSESSEE THE CORRECT CALCULATION OF PEAK AMOUNT WHICH HAS BEEN SUBMITTED BEFORE THE CIT(A) VIDE LETTER DATED 23 RD NOVEMBER, 2007. THE RELEVANT CONTENTION OF THE ASSESSEE IS REPRODUCED FROM PAGE NOS.73 OF T HE ASSESSEES PAPER BOOK AS UNDER :- A.Y. ADDITIONS MADE AS CORRECT AMOUNT OF PEAK PEAK DEPOSITS BY LD. A.O. AS PER AC NO.5708 IN IN BANK AC NO 5708 IN E.K.G.B. E.K.G.B. 1. 1999-2000 NIL NIL 2. 2000-2001 NIL NIL 3. 2001-2002 50,500/- 50,500/- 4. 2002-2003 97,042/- 91,542/- (INCLUSIVE OPENING BALANCE 5500/-) 5. 2003-2004 18,85,437/- 10,59,766/- 6. 2004-2005 11,84,870/- 4,90,185/- 7. 2005-2006 28,40,675/- 1,65,000/- THUS IT MAY KINDLY BE SEEN THAT THE CALCULATIONS OF LD. ASSESSING OFFICER IN RESPECT OF PEAK DEPOSITS ARE WRONG IN A S MUCH AS HE HAS MADE THE ADDITIONS WITHOUT MAKING ANY CHECKING OF T HE ENTRIES MADE IN BANK AC NO 5708 AT E.K.G.B. THESE ADDITIONS MIG HT HAVE BEEN ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 31 MADE ON THE BASIS OF APPRAISAL REPORT COPY OF WHICH HAS NEVER BEEN GIVEN TO THE APPELLANT. PHOTOCOPIES OF BANK ACCOUN T NO.5708 IN E.K.G.B. FOR A.Y. 2001-2002, 2002-2003, 2003-2004, 2004-2005 AND 2005-2006 ARE ENCLOSED HEREWITH FOR YOUR KIND PERUS AL. IN VIEW OF THE ABOVE SUBMISSIONS THE ADDITIONS MADE, AS PEAK D EPOSITS DESERVES TO BE DELETED. THE APPELLANT IS ENCLOSING HEREWITH A CHART CONTAINING THE DETAILS OF AGRICULTURE INCOME SHOWN BY HIM, AGR ICULTURE INCOME TAKEN BY THE LD. ASSESSING OFFICER, DETAILS OF CONT RACT RECEIPTS SHOWN, GP WITH GP RATE ETC. RIGHT FROM A.Y. 1999-2000 TO 2 005-2006 SO THAT THESE FIGURES CAN BE SEEN AT A GLANCE BY YOUR GOOD SELF FOR ABOVE ASSESSMENT YEARS. 46. LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHER H AND, RELIED UPON THE ORDER OF THE ASSESSING OFFICER. 47. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PA RTIES AND RECORDS PERUSED. AS STATED ABOVE THAT REVENUE AND ASSESSEE BOTH ARE IN APPEAL AGAINST THE ORDER OF CIT(A) ON THE SAID ISSUE. WE DO NOT AGREE WITH THE FINDING OF THE CIT(A) AS THE CIT(A), ON ONE HAND, REJECTED THE ASSESSEES CONTEN TION FOR TELESCOPING OF CONTRACT RECEIPT AND AGRICULTURAL RECEIPT FOR THE PURPOSE OF CALCULATION OF THE PEAK. HOWEVER, ON THE OTHER HAND, THE CIT(A) OBSERVED THA T WHAT IS TO BE SEEN IS TOTAL FUND AVAILABLE FOR DEPOSITING IN BANK ACCOUNTS. TH E CIT(A) ALLOWED THE CREDIT OF AGRICULTURAL RECEIPT, CONTRACT RECEIPT FROM THE AMO UNT OF PEAK CALCULATION BY THE ASSESSING OFFICER. THIS FINDING OF CIT(A) IS NOT A CCEPTABLE AS IN PRINCIPLE THE AGRICULTURAL RECEIPT AND CONTRACT RECEIPT, TELESCOP ING CANNOT BE ALLOWED IN ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 32 CALCULATION OF PEAK ADDITION. HOWEVER THE ASSESSEE IS ALSO NOT SATISFIED WITH THE ORDER OF THE CIT(A) AS THE LD. AUTHORISED REPRESENT ATIVE CONTENDED THAT THE CALCULATION OF PEAK ITSELF IS NOT CORRECT. THE REV ENUE HAS ALSO RAISED ONE MORE GROUND THAT THE CIT(A) VIOLATED RULE 46A OF THE INC OME TAX RULES. AFTER CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE, WE FIND IT APPROPRIATE TO RESTORE THIS ISSUE BACK TO THE FILE OF THE CIT(A) TO DECIDE THE ISSUE AFRESH AFTER APPRECIATING THE CONCEPT OF PEAK THEORY AND AFTER CONSIDERING CALCUL ATION OF PEAK FURNISHED BY THE LD. AUTHORISED REPRESENTATIVE. AFTER CONSIDERING T HESE, THE ISSUE IS REQUIRED TO BE DECIDED IN ACCORDANCE WITH LAW AFTER PROVIDING REAS ONABLE OPPORTUNITY OF BEING HEARD TO BOTH THE PARTIES. 48. NOW COMING TO THE REMAINING GROUNDS RAISED BY T HE ASSESSEE IN HIS APPEAL NO.91/AGR/2008, THE FIRST GROUND IS IN RESPECT OF A DDITION OF ` 3,52,000/- OUT OF AGRICULTURAL INCOME. THIS ISSUE HAS BEEN DECIDED W HILE DECIDING COMMON ISSUE IN ASSESSMENT YEAR 1999-2000 IN ITA NO.42/AGR 2008 VID E PARAGRAPH NO.9 OF THIS ORDER. THE ASSESSING OFFICER IS DIRECTED ACCORDING LY. ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 33 49. GROUND NO.2 HAS BEEN DECIDED ALONGWITH REVENUE S APPEAL AS ABOVE VIDE PARA 47 OF THIS ORDER. THE A.O. IS DIRECTED ACCORD INGLY. GROUND NO.3 IS IN RESPECT OF ADDITION OF ` 50,000/- AS UNEXPLAINED HOUSE HOLD EXPENSES. 50. THE BRIEF FACTS OF THE ISSUE ARE THAT THE ASSES SING OFFICER MADE ADDITION OF ` 1,80,000/- ON ACCOUNT OF HOUSE HOLD EXPENDITURE. T HE ASSESSING OFFICER NOTICED THAT TWO SONS OF THE ASSESSEE ARE STUDYING IN SECON D YEAR M.B.B.S. AND ENGINEERING. THE ASSESSEE IS MAINTAINING VEHICLES MORE THAN ONE AND WEAPONS. AFTER CONSIDERING ALL THESE ASPECTS, THE ASSESSING OFFICER WAS OF THE VIEW THAT THE SAME SHOULD BE RESTRICTED TO ` 3,50,000/-. THE ASSESSEE HAS SHOWN ` 1,70,000/-, , THEREFORE, THE ASSESSING OFFICER MADE THE ADDITION OF ` 1,80,000/-. 51. THE CIT(A) FOLLOWED HIS ORDER DATED 14.12.2007 AND REDUCED THE ADDITION FROM ` 1,80,000 TO ` 50,000/-. THE CIT(A) FURTHER HELD THAT THE ASSESSE E IS NOT ENTITLED FOR ANY TELESCOPING BENEFIT FOR THE REASON S GIVEN BY HIM IN HIS ORDER FOR THE ASSESSMENT YEAR 2002-03. 52. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PA RTIES AND RECORDS PERUSED. WE NOTICE THAT THE ASSESSING OFFICER HAS ESTIMATED THE HOUSE HOLD EXPENSES AFTER ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 34 CONSIDERING THE RELEVANT FACTS AND MADE ADDITION OF ` 1,80,000/-. THE CIT(A) FOLLOWED THE EARLIER YEARS ORDER AND RESTRICTED TH E ADDITION TO THE EXTENT OF ` 50,000/- AND OBSERVED THAT IT WILL COVER ALL THE DE FICIENCIES POINTED OUT BY HIM. SINCE THIS IS A CASE OF ESTIMATION OF HOUSE HOLD EX PENSES, THE CIT(A), AFTER APPRECIATING THE FACTS OF THE CASE, RESTRICTED THE ADDITION TO THE EXTENT OF ` 50,000/-. THERE IS NO CONTRARY MATERIAL TO THE FINDING OF CIT (A) NOR SUCH MATERIAL WAS BROUGHT OUT AT THE TIME OF HEARING BASED ON WHICH A DIFFERENT ESTIMATION OF HOUSE HOLD EXPENSES CAN BE MADE AT THIS STAGE. WE, THERE FORE, DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A). ORDER OF THE CIT(A) IS CON FIRMED. 53. GROUND NO.4 IS IN RESPECT OF ADDITION OF RS.9,3 00/-. THE BRIEF FACTS OF THE ISSUE ARE THAT DURING THE ASSESSMENT PROCEEDINGS, O N PERUSAL OF BALANCE SHEET, THE ASSESSING OFFICER NOTICED THAT THERE IS A DIFFERENC E OF BANK ACCOUNT AMOUNTING TO ` 9,500/-. THE ASSESSEE DID NOT FURNISH ANY EXPLANAT ION, THEREFORE, THE ASSESSING OFFICER MADE THE ADDITION OF ` 9,300/-. THE CIT(A) DIRECTED THE ASSESSING OFFICER TO VERIFY THE ASSESSEES CLAIM THAT THE SAID AMOUNT WAS INTEREST AMOUNT AND TO TAKE APPROPRIATE ACTION. ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 35 54. AFTER HEARING THE LD. REPRESENTATIVES OF THE PA RTIES, WE FIND THAT THE ASSESSEE SHOULD NOT HAVE GRIEVANCE AS THE CIT(A) CONSIDERED THE ASSESSEES SUBMISSION AND HAS SENT BACK THE ISSUE TO THE FILE OF ASSESSING OF FICER FOR VERIFICATION. IN THE LIGHT OF THE FACTS, WE DO NOT FIND ANY INFIRMITY IN THE O RDER OF THE CIT(A). ORDER OF THE CIT(A) IS CONFIRMED ON THE ISSUE. 55. GROUND NO.5 IS IN RESPECT OF CHARGING OF INTERE ST UNDER SECTIONS 234A, 234B & 234C OF THE ACT WHICH IS CONSEQUENTIAL IN NATURE. THE ASSESSING OFFICER IS DIRECTED ACCORDINGLY. 56. IN THE RESULT, APPEAL NO.91/AGR/2008 OF THE ASS ESSEE FOR ASSESSMENT YEAR 2003-04 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES AND APPEAL NO.41/AGR/2008 OF THE REVENUE FOR ASSESSMENT YEAR 2003-04 IS ALSO PARTLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO.95/AGR/2008 BY THE REVENUE AND ITA NO.145/AG R/2008 BY THE ASSESSEE FOR A.Y. 2004-05. 57. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS IN ITS APPEAL:- ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 36 1. THAT THE CIT(A)-I, AGRA HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF ` 11,84,870/- BY BRUSHING ASIDE THE REASONS DISCUSSED IN THE ASSESSMENT ORDER AND WITHOUT APPRE CIATING THE FACTS OF THE CASE; 2. THAT THE CIT(A)-I, AGRA HAS ERRED IN LAW IN DELE TING THE AFORESAID ADDITION BY ENTERTAINING THE ADDITIONAL E VIDENCE IN CONTRAVENTION OF PROVISIONS OF RULE 46A OF I.T. RUL ES, 1962 AND WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD TO THE A.O. 3. THAT THE ORDER OF THE CIT(A)-I, AGRA BEING ERRON EOUS IN LAW AND ON FACTS OF THE CASE BE SET-ASIDE AND THAT THE A.O.S ORDER BE RESTORED. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD OR DELETE OR ALTER OR MODIFY ANY ONE OR MORE GROUND(S) DURING THE APPEAL PROCEEDINGS. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN I TS APPEAL:- 1. THAT THE LEARNED CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF ` 3,23,000.00 BY TREATING IT AS INCOME FROM UNDISCLOSED SOURCES OUT OF AGRICULTURE INCOME SHOWN BY APPELLANT AT ` 3,75,000.00. 2. THAT THE LEARNED CIT(A) HAS ERRED ON FACTS AND I N LAW IN SUSTAINING THE ADDITION OF ` 50,000.00 FOR HOUSEHOLD EXPENSES AND IS ARBITRARY AND UNJUST. 3. THAT THE LD CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF ` 5,00,000.00 FOR UNSECURED LOAN. 4. THAT THE INTEREST CHARGES U/S 234A, 234B, 234C A T ` 2,64,330.00 AND ` 3,96,499.00, AND ` 10,500.00 RESPECTIVELY IS ILLEGAL. ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 37 5. THAT THE APPELLANT PRAISED TO ADD OR ALTER ANY O THER GROUND OF APPEAL MAY BE WARRANTED. ITA NO.145/AGR/2008 BY THE ASSESSEE FOR A.Y. 2004-0 5 58. THE FIRST GROUND OF ASSESSEES APPEAL IS IN RES PECT OF ADDITION OF ` 3,23,000/- OUT OF AGRICULTURAL INCOME. THIS ISSUE HAS BEEN DE CIDED WHILE DECIDING COMMON ISSUE IN ASSESSMENT YEAR 1999-2000 IN ITA NO.42/AGR 2008 VIDE PARAGRAPH NO.9 OF THIS ORDER. THE ASSESSING OFFICER IS DIRECTED A CCORDINGLY. 59. THE SECOND GROUND OF ASSESSEES APPEAL IS IN RE SPECT OF ADDITION OF ` 50,000/- FOR HOUSEHOLD EXPENSES. IDENTICAL ISSUE HAS BEEN D ECIDED IN ASSESSEES CASE IN ASSESSMENT YEAR 2003-04 IN ITA NO.91/AGR/2008 VIDE PARAGRAPH NO.52 OF THIS ORDER. FOLLOWING THE DISCUSSIONS MADE IN THE SAID PARAGRAPH, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A) IN THIS YEAR A LSO. ORDER OF CIT(A) IS CONFIRMED ON THE ISSUE. 60. THE THIRD GROUND OF ASSESSEES APPEAL IS IN RES PECT OF ADDITION OF ` 5,00,000/- LACS FOR UNSECURED LOANS. THE ASSESSING OFFICER DI D NOT ACCEPT THE ASSESSEES CONTENTION THAT THE ASSESSEE IS BASICALLY AN AGRICU LTURIST AND HE HAS TAKEN LOAN FROM ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 38 AGRICULTURISTS. HOWEVER, THE ASSESSEE DID NOT FURN ISH NECESSARY DETAILS TO PROVE THE GENUINENESS OF THE LOANS. THE ASSESSEE DID NOT PRO DUCE THE CREDITORS SINCE THE PROCEEDING WAS GOING TO BE TIME BARRED. THEREFORE, THE ASSESSING OFFICER MADE ADDITION OF ` 5,00,000/- ON THE GROUND THAT THE ASSESSEE HAS FAIL ED TO DISCHARGE THE ONUS TO PROVE THE GENUINENESS BY NOT PRODUCING THE PERSONS FROM WHOM LOANS WERE TAKEN. THE CIT(A) CONFIRMED THE ADDITION AS UNDER :- (CIT(A) PARAGRAPH NO.6.3) I HAVE CONSIDERED THE RIVAL CONTENTIONS AND FIND T HAT THE APPELLANT HAD NOT MAINTAINED PROPER BOOKS OF ACCOUN TS NOR FILED ANY RETURNS OF INCOME PRIOR TO THE SEARCH. THE IMPUGNE D UNSECURED LOANS OF ` 5,00,000/- WERE SHOWN IN THE B/S IN THE RETURN FOR THE RELEVANT ASSESSMENT YEAR FURNISHED IN PURSUANCE OF NOTICE U/ S 153A OF THE ACT. FURTHER, AS EXPRESSLY ADMITTED BY LD. AUTHORISED RE PRESENTATIVE OF THE APPELLANT, AND AS NOTED BY ME VIDE ORDER SHEET ENTRY DATED 9.1.2008, NO SUCH RECEIPT UNSECURED LOANS OF ` 5,00,000/- FROM AGRICULTURISTS/FARMERS IS FOUND RECORDED IN ANY OF THE SEIZED BOOKS/MATERIAL. ON THE CONTRARY, AS EVIDENT FROM S EIZED RECORDS, PARTICULARLY BK-15 THE APPELLANT IS FOUND TO HAVE B EEN LENDING MONEY TO VARIOUS PERSONS (REFER ASSESSMENT ORDERS OF A.Y. 2001-02 AND 2005-06). THUS, THE APPELLANT HAS NO EVIDENCE TO P ROVE THE GENUINE EXISTENCE OF ANY SUCH LOANS. THESE ENTRIES APPEAR TO HAVE BEEN CONTRIVED TO EXPLAIN THE SOURCE OF VARIOUS INVESTME NTS MADE DURING THE YEAR. HENCE, I FIND NO REASON TO INTERFERE IN THE DECISION OF THE ASSESSING OFFICER. THE ADDITION OF ` 5,00,000/- IS ACCORDINGLY CONFIRMED. 61. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THA T THE ASSESSEE HAS DISCHARGED BURDEN AS LOANS WERE TAKEN FROM THE AGRI CULTURISTS. THE ASSESSEE HAS ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 39 FURNISHED AFFIDAVITS OF THE PARTIES OF WHICH COPIES HAVE BEEN PLACED AT PAGE NOS.43 TO 72 OF THE ASSESSEES PAPER BOOK. 62. LD. AUTHORISED REPRESENTATIVE IN SUPPORT OF HIS CONTENTION RELIED UPON THE FOLLOWING JUDGMENTS:- CIT VS. S. KAMALJEET SINGH, 147 TAXMAN 18 (ALL.) CIT VS. DIAMOND PRODUCTS LIMITED, 177 TAXMAN 331 (D ELHI) ARAVALI TRADING CO. VS. ITO, 8 DTR 199 (RAJ) 63. LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHER H AND, RELIED UPON THE ORDER OF THE CIT(A). 64. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PA RTIES AND RECORDS PERUSED. THE DECISION CITED BY THE LD. AUTHORISED REPRESENTA TIVE DOES NOT HELP THE ASSESSEE AS IN THOSE JUDGMENTS IT WAS FOUND THAT THE ASSESSE E HAS DISCHARGED THE ONUS BY FILING CONFIRMATION LETTERS OF CREDITORS, THEIR AFF IDAVITS, ADDRESSES, G.R. NOS., PAN ETC. IN THE CASE UNDER CONSIDERATION, THE ASSESSEE SIMPLY FURNISHED AFFIDAVIT IN STEREO MANNER. A DRAFT OF AFFIDAVIT WAS PREPARED A ND FILLED UP THE BLANKS LIKE NAME ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 40 AMOUNT AND DATE. THE AFORESAID AFFIDAVIT FURNISHED IS NOT IN ACCORDANCE WITH LAW AS THERE IS NO VERIFICATION OF THE PARTY WHO HAS GI VEN THE AFFIDAVIT. THE ASSESSING OFFICER MADE THE ASSESSMENT ON 22.12.2006 WHEREAS T HE AFFIDAVIT IS STATED TO BE DATED 08.07.2006 AND NOTARIZED ON 09.12.2006. IT I S SETTLED LAW IN RESPECT OF CASH CREDIT THAT THE ASSESSEE HAS TO PROVE THE IDENTITY, GENUINENESS AND CREDIT WORTHINESS OF THE CASH CREDITORS. FROM THE AFFIDAVIT FILED BY THE ASSESSEE BASED ON WHICH IT WAS HELD THAT THE ASSESSEE HAS DISCHARGED THE BURDE N AS REQUIRED UNDER SECTION 68 OF THE ACT. THE CIT(A) RECORDED THE FACT VIDE ORDE R SHEET ENTRY DATED 09.01.2008 THAT NO SUCH RECEIPT OF UNSECURED LOAN OF ` 5,00,000/- FROM AGRICULTURIST/FARMERS WERE FOUND RECORDED IN ANY OF THE SEIZED MATERIAL O R BOOKS OF ACCOUNTS. ON THE CONTRARY, IT IS FOUND THAT THE ASSESSEE WAS GIVING MONEY TO VARIOUS PERSONS. THE ASSESSEE DID NOT FURNISH ANY EVIDENCE TO PROVE THE GENUINENESS OF THE ANY SUCH LOANS. BEFORE US ALSO THE ASSESSEE FAILED TO FURNI SH ANY EVIDENCE BASED ON WHICH IT CAN BE SAID THAT THE LOAN TAKEN BY THE ASSESSEE WAS GENUINE ONE. UNLESS THE ASSESSEE FURNISHES MATERIAL AND DOCUMENTS AND EVIDE NCES TO PROVE THE BURDEN UNDER THAT CIRCUMSTANCES OF THE CASE THE JUDGMENTS CITED BY THE ASSESSEE ARE NOT APPLICABLE. IN THE CASE UNDER CONSIDERATION, THE A SSESSEE FAILED TO FURNISH ANY EVIDENCE EITHER BEFORE THE REVENUE AUTHORITIES OR B EFORE US TO DISCHARGE HIS ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 41 BURDEN REGARDING GENUINENESS OF THE LOANS. UNDER T HE CIRCUMSTANCES, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A). ORDER O F CIT(A) IS CONFIRMED. 65. GROUND NO.4 OF THE ASSESSEES APPEAL IS IN RESP ECT OF CHARGING OF INTEREST UNDER SECTIONS 234A, 234B & 234C OF THE ACT WHICH I S CONSEQUENTIAL IN NATURE. THE ASSESSING OFFICER IS DIRECTED ACCORDINGLY. 66. IN THE RESULT, APPEAL OF THE ASSESSEE IN ITA NO .145/AGR/2008 IS PARTLY ALLOWED. ITA NO.95/AGR/2008 BY THE REVENUE FOR A.Y. 2004-05 67. THE FIRST GROUND OF APPEAL OF REVENUE IS IN RES PECT OF DELETION OF ADDITION OF ` 11,84,870/-. THE ASSESSING OFFICER MADE ADDITION O F ` 11,84,870/- ON ACCOUNT OF PEAK DEPOSIT IN BANK ACCOUNT. THE SAID AMOUNT HAS BEEN DELETED BY THE CIT(A) ALLOWING BENEFIT OF AGRICULTURAL RECEIPT, CONTRACT RECEIPT, UNSECURED LOANS AND OTHERS. THIS ISSUE IS IDENTICAL TO THE ISSUE CAME BEFORE US IN ASSESSMENT YEAR 2003-04 WHICH HAS BEEN DISCUSSED AND DECIDED IN PAR AGRAPH NOS.44 TO 47 OF THIS ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 42 ORDER. FOLLOWING THE SAID DISCUSSIONS, THIS GROUND OF REVENUES APPEAL IS ALSO BEING SENT BACK TO THE FILE OF THE CIT(A) WITH IDEN TICAL DIRECTION. 68. SINCE WE ARE SENDING BACK THIS ISSUE TO THE FIL E OF CIT(A), THEREFORE, GROUND NO.2 RAISED IN RESPECT OF RULE 46A OF THE INCOME TA X RULES BECOMES INFRUCTUOUS AS THE CIT(A) WILL PROVIDE REASONABLE OPPORTUNITY O F HEARING TO BOTH THE SIDES. 69. IN THE RESULT, APPEAL OF THE REVENUE IN ITA NO. 95/AGR/2008 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO.127/AGR/2008 BY THE ASSESSEE FOR A.Y. 2002-0 3 70. THE ASSESSEE RAISED THE FOLLOWING GROUNDS IN IT S APPEAL :- 1. THAT THE CIT(APPEALS) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF ` 327000/- BY TREATING IT AS INCOME FROM UNDISCLOSED SOURCES OUT OF AGRICULTURE INCOME SHOWN BY APPELLANT AT ` 375000/-. 2. THAT THE CIT(APPEAL) HAS ERRED ON FACTS IN SUSTA INING THE ACTION OF ASSESSING OFFICER THAT ADVANCE OF ` 83000/- WAS MADE DURING THE YEAR. ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 43 3. THAT THE CIT (APPEALS) HAS ERRED ON FACTS AND IN LAW IN SUSTAINING THE ADDITION OF ` 29880/- AS UNDISCLOSED INTEREST IGNORING THE CONTAINS OF DIARY SEIZED BK-15. 3A. THAT THE ADDITION FOR HOUSE HOLD EXPENSES SUSTA INED BY CIT (APPEAL) AT ` 125000/- ARBITRARY, UNJUST AND BAD IN LAW. 4. THAT THE LEVY OF INTEREST U/S 234A, 234B AT ` 131093/- AND ` 143517/- RESPECTIVELY IS ILLEGAL. 5. THAT THE APPELLANT CRAVES TO ADD OR ALTER ANY OT HER GROUND OF APPEAL AS MAY BE WARRANTED. 71. GROUND NO.1 IS IN RESPECT OF ADDITION OF ` 3,27,000/- ON ACCOUNT OF AGRICULTURAL INCOME. THIS ISSUE HAS BEEN DECIDED W HILE DECIDING COMMON ISSUE IN ASSESSMENT YEAR 1999-2000 IN ITA NO.42/AGR 2008 VID E PARAGRAPH NO.9 OF THIS ORDER. THE ASSESSING OFFICER IS DIRECTED ACCORDING LY. 72. IN RESPECT OF GROUND NOS.2 & 3 OF ASSESSEES AP PEAL REGARDING ADDITIONS OF ` 83,000/- AND ` 29,880/-, THE BRIEF FACTS OF THIS GROUND ARE THAT T HE ASSESSING OFFICER ASKED THE ASSESSEE TO EXPLAIN THE SOURCE OF ADVANCE OF ` 83,000/- DURING THE YEAR. THE SAID ADVANCE WAS NOTED FROM THE SEIZED M ATERIAL PAGE NO.48 OF ANNEXURE BK-15. BEFORE THE ASSESSING OFFICER THE A SSESSEE EXPLAINED THAT THE SAID AMOUNT REPRESENT THE MONEY DEPOSITED BY THE VI LLAGERS WITH THE ASSESSEE FOR THE SAFE CUSTODY WHICH WAS SHOWN IN THE DIARY WITH NOTATION ADHA MURDA OR ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 44 ZINDA. THE ASSESSING OFFICER NOTED THAT THE ASS ESSEE VIDE HIS SUBMISSION DATED 06.12.2000 ADMITTED THAT HE HAD ADVANCED MONEY AS L OAN TO THE NEEDY PERSONS OUT OF HIS HOME SAVING AND AGRICULTURAL INCOME. THE AS SESSING OFFICER NOTICED THAT THE ASSESSEE WAS CARRYING ON BUSINESS OF MONEY LEND ING. THE ASSESSEE DID NOT SHOW THE SOURCE OF ` 83,000/-. THE ASSESSING OFFICER, THEREFORE, MADE T HE ADDITION OF ` 83,000/- AND ALSO MADE ADDITION OF ` 29,880/- ON ACCOUNT OF INTEREST. THE CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICE R AS UNDER :- (CIT(A) PARAGRAPH NO.5.3) I HAVE CONSIDERED THE RIVAL CONTENTIONS AND FIND T HAT THE APPELLANT HAS ADMITTED BEFORE THE ASSESSING OFFICER THAT HE IS DOING MONEY LENDING, DETAILS OF WHICH ARE NOTED IN SEIZED BOOKS BK-15. AS APPARENT FROM THE APPELLANTS SUBMISSIONS BEFORE TH E ASSESSING OFFICER, THE APPELLANT HAS ADMITTED TO AND EXPLAINE D ENTRIES ON PAGES 28 & 53-55, 24-26. HOWEVER, HE HAS NOT EXPLAINED E NTRIES ON PAGE 48 OF THE SAME BOOK, WHICH CONTAINS THE IMPUGNED ENTRI ES AGGREGATING TO ` 83,000/-. SINCE THE APPELLANT HAS ADMITTED TO MONE Y LENDING AND FAILED TO EXPLAIN THE SOURCE OF THE IMPUGNED ADVANC ES, THE ADDITION OF ` 83,000/- IS CONFIRMED. IT IS ALSO OBSERVED THAT TH E APPELLANT HAS ADMITTED HAVING RECEIVED INTEREST ON SUCH ADVANCES, AS APPARENT FROM THE ASSESSMENT ORDER. HENCE, ADDITION OF ` 29,880/- ON ACCOUNT OF INTEREST ESTIMATED BY THE ASSESSING OFFICER IS ALSO CONFIRMED. 73. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PA RTIES AND RECORDS PERUSED. THE CIT(A) NOTED THE FACT THAT THE ASSESSEE ADMITTE D TO BE CARRYING ON BUSINESS OF MONEY LENDING. THE ASSESSEE HAS FAILED TO EXPLAIN THE SOURCE OF ` 83,000/-. THE ASSESSEE HIMSELF ADMITTED TO HAVE RECEIVED INTEREST ON SUCH ADVANCES. IN THE LIGHT ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 45 OF THIS ADMITTED FACT AND THE FACT RECORDED BY CIT( A), WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A). ORDER OF CIT(A) IS CONFIRM ED ON THE ISSUE AND BOTH THE GROUNDS, I.E. GROUND NOS.2 & 3, OF ASSESSEES APPEA L ARE DISMISSED. 74. GROUND NO.3A OF THE ASSESSEES APPEAL IS IN RES PECT OF ADDITION ON ACCOUNT OF HOUSE HOLD EXPENSES. THE ASSESSING OFFICER MADE AD DITION OF ` 2,25,000/- ON ACCOUNT OF HOUSE HOLD EXPENSES WHICH HAS BEEN REDUC ED BY THE CIT(A) TO THE EXTENT OF ` 1,25,000/- AND ALLOWED RELIEF OF ` 1,00,000/-. THE RELEVANT FINDING OF CIT(A) IS AS UNDER :- (CIT(A) PARAGRAPH NO.7.2) I HAVE CONSIDERED THE ARGUMENTS OF THE APPELLANT. THE APPELLANT HAS INCLUDED AGRICULTURAL INCOME OF ` 3,75,000/- IN HIS NET PROFIT OF ` 4,40,129/- AND CREDITED THE SAME TO HIS CAPITAL ACC OUNT AND AGAINST THIS, HE HAS SHOWN WITHDRAWALS OF ` 75,000/- FOR HOUSEHOLD EXPENSES. HENCE, AGAIN TELESCOPING THE ADDITION OF ` 2,25,000/- AGAINST THE SAME AGRICULTURAL INCOME OF ` 3,75,000/- IS AGAINST ACCOUNTING PRINCIPLES. HOWEVER, CONSIDERING THE AB OVE EXPLANATION OF THE APPELLANT, I FIND THE ADDITION TO BE ON THE HIGHER SIDE. HENCE, THE SAME IS REDUCED TO ` 1,25,000/-. THE APPELLANT GETS RELIEF OF ` 1,00,000/- 75. THIS ISSUE IS IDENTICAL TO THE ISSUE DECIDED IN ASSESSMENT YEAR 2003-04 IN ITA NO.91/AGR/2008 VIDE PARAGRAPH NO.52 OF THIS ORD ER. IN THE LIGHT OF THE DETAILED DISCUSSIONS, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A). ORDER OF CIT(A) IS ACCORDINGLY CONFIRMED. ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 46 76. GROUND NO.4 IS IN RESPECT OF CHARGING OF INTERE ST UNDER SECTION 234A & 234B OF THE ACT WHICH IS CONSEQUENTIAL IN NATURE. THE A SSESSING OFFICER IS DIRECTED ACCORDINGLY. 77. IN THE RESULT, ITA NO.127/AGR/2008 FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2002-03 IS PARTLY ALLOWED. 78. IN THE RESULT :- 1) ITA NO.56/AGR/2008 OF THE ASSESSEE IS PARTLY AL LOWED. 2) ITA NO.65/AGR/2008 OF THE ASSESSEE IS PARTLY AL LOWED. 3) ITA NO.127/AGR/2008 OF THE ASSESSEE IS PARTLY A LLOWED. 4) ITA NO.145/AGR/2008 OF THE ASSESSEE IS PARTLY A LLOWED. 5) ITA NO.57/AGR/2008 OF THE ASSESSEE IS PARTLY ALL OWED FOR STATISTICAL PURPOSES. 6) ITA NO.91/AGR/2008 OF THE ASSESSEE IS PARTLY ALL OWED FOR STATISTICAL PURPOSES. 7) ITA NO.42/AGR/2008 OF THE REVENUE IS DISMISSED. 8) ITA NO.43/AGR/2008 OF THE REVENUE IS DISMISSED. 9) ITA NO.41/AGR/2008 OF THE REVENUE IS PARTLY ALLO WED FOR STATISTICAL PURPOSES. 10) ITA NO.95/AGR/2008 OF THE REVENUE IS PARTLY ALL OWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 11.05.2012) SD/- SD/- (BHAVNESH SAINI) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 11 TH MAY, 2012 PBN/* ITA NOS.42, 43, 41, 95, 56, 57, 91, 145, 65 & 127/AGR/2008 A.YS.1999-2000, 01-02, 03-04, 04-05, 2000-01 & 02-03 47 COPY OF THE ORDER FORWARDED TO: APPELLANT RESPONDENT CIT CONCERNED CIT (APPEALS) CONCERNED D.R., ITAT AGRA BENCH, AGRA GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY