Mr. Abhijit Subhash Gaikwad, Pune V. Dy. CIT, Central Circle 2(1), Pune

ITA 922/PUN/2013

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9428 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 8 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 16-01-2018
• Assessment Year: 2005-2006
• Appeal Filed On: 26-04-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NIRUPAMA KOTRU
• Assessee Lawyers: ABHAY A AVCHAT
• Keywords: Unexplained cash credit; Search and seizure; Corroborative evidences
• Section: 143(3); 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE , , , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI , AM . / ITA NO S . 921 TO 924 /PUN/2013 / ASSESSMENT YEAR S : 2004 - 05 TO 2007 - 08 MR. ABHIJIT SUBHASH GAIKWAD, S. NO. 127/1A, A.G. TECHNOLOGY PARK, 2 ND FLOOR, AUNDH, PUNE - 411007. / APPELLANT PAN : AIOPG4167C / V/S. THE DEPUTY COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE - 2(1), PUNE. / RESPONDENT APPELLANT BY : SHRI ABHAY A. AVCHAT RESPONDENT BY : SMT. NIRUPAMA KOTRU, CIT. / DATE OF HEARING : 16.01.2018 / DATE OF PRONOUNCEMENT : 25 .01.2018 / ORDER PER SUSHMA CHOWLA , JM T HE SE FOUR APPEAL S FILED BY THE ASSESSEE ARE AGAINST CONSOLIDATED ORDER OF CIT (APPEALS) - CENTRAL, PUNE , DATED 30.01.2013 RELATING TO ASSESSMENT YEAR S 2004 - 05 TO 2007 - 08 AGAINST RESPECTIVE ORDERS PASSED UNDER SECTION 143(3) R.W.S 1 53A OF THE INCOME - TAX ACT, 1961 (IN SHORT THE ACT). 2. THIS BUNCH OF APPEALS RELATING TO THE SAME ASSESSEE ON SIMILAR ISSUES WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. FIRST, WE TAKE UP THE APPEAL IN ITA NO.921/PUN/2013, RELATING TO ASSESSMENT YEAR 20 04 - 05. 2 ITA NOS.921 TO 924/PUN/2013 A.YS. 2004 - 05 TO 2007 - 08 3. THE ASSESSEE IN ITA NO.921/PUN/2013 , RELATING TO ASSESSMENT YEAR 2004 - 05 HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. THOUGH THE ASSESSEE, TO HAVE PEACE OF MIND AND TO AVOID ANY FURTHER DISPUTES AND PENALTY PROCEEDINGS, HAS ADMITTED THE SUNDRY CREDITORS OF RS.45,60,000/ - AS HIS INCOME AND AGREE TO PAY THE INCOME TAX ACCORDINGLY IN SPITE OF THE FACT THAT THE LIABILITY OF RS.45,6 0,000/ - IS STILL TO BE PAID, THE LEARNED AO HAS ERRED IN MAKING THE ADDITION OF RS.64,000/ - ON ACCOUNT OF WITHDRAWAL FROM PARTNERSHIP FIRM M/S.GAIKWAD DEVELOPERS IGNORING THE SUBMISSIONS MADE DURING THE COURSE OF HEARING. 2. LOOKING TO THE FACTS AND CIRCU MSTANCES OF THE CASE, THE ADDITION OF RS.64,000/ - WRONGLY MADE BY THE A.O. MAY PLEASE BE DELETED. 3. THE APPELLANT PRAYS TO BE ALLOWED TO ADD, AMEND, DELETE, MODIFY, RECTIFY ANY GROUNDS OF APPEAL DURING THE COURSE OF HEARING. 4. BRIEFLY, IN THE FACTS O F THE CASE, SEARCH AND SEIZURE ACTION UNDER SECTION 132 OF THE ACT WAS CONDUCTED AT THE ASSESSEES PREMISES AT AUNDH. THEREAFTER, NOTICE UNDER SECTION 153A OF THE ACT WAS ISSUED TO THE ASSESSEE. THE ASSESSEE IN RESPONSE, FURNISHED RETURN OF INCOME DECLAR ING TOTAL INCOME OF 95,231/ - . THE ASSESSING OFFICER AS PER THE BALANCE SHEET NOTED THAT THE ASSESSEE HAD SHOWN OUTSTANDING SUNDRY CREDITORS AT 45,60,000/ - . THE ASSESSING OFFICER NOTED THAT CREDITORS HAD NOT BEEN PAID EVEN AS ON 31.03.2010. THE YEAR UNDER APPEAL IS ASSESSMENT YEAR 2004 - 05. THE ASSESSEE THUS, WAS ASKED TO FILE DETAILS OF SUNDRY CREDITORS. IN RESPONSE, THE ASSESSEE SUBMITTED THAT IT HAD PURCHASED TDR FROM THE FAMILY MEMBERS FOR HIS PARTNERSHIP FIRM M/S. GAIKWAD DEVELOPERS. THE SAID T DR WAS PURCHASED FOR 15200 SQ.FT. @ 300/ - FROM MR. SUBHASH S. GAIKWAD, MR. NANASAHEB S. GAIKWAD, MRS. KOUSALYA D. PAYGUDE, MRS. BEBI A SHITOLE & MRS. LATA S. PAWAR FOR TOTAL CONSIDERATION OF 45,60,000/ - . THE ASSESSEE FAILED TO FURNISH CONFIRMATION FR OM THE SAID CREDITORS. ACCORDING TO THE ASSESSEE, HE OWED MONEY TO MR. SUBHASH S. GAIKWAD AND MR. NANASAHEB S. GAIKWAD. THE ASSESSING OFFICER NOTED THAT BOTH MR. SUBHASH S. GAIKWAD AND MR. NANASAHEB S. GAIKWAD WERE ASSESSED IN THE SAID CIRCLE BUT SUCH RE CEIVABLE ON ACCOUNT OF 3 ITA NOS.921 TO 924/PUN/2013 A.YS. 2004 - 05 TO 2007 - 08 TDR WAS NOT SHOWN IN THEIR BALANCE SHEETS, THOUGH THEY FOLLOWED MERCANTILE SYSTEM OF ACCOUNTING. THIS FACT WAS POINTED OUT TO THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE AND HE WAS ALSO ASKED TO CLARIFY WHERE THE TDR OF 1 5200 SQ.FT. WAS USED BY THE ASSESSEE AND IF NOT USED, THEN WHY THE SAME IS NOT APPEARING IN THE BALANCE SHEET FOR ASSESSMENT YEAR 2004 - 05 AS AN ASSET. SUBSEQUENT TO THE QUERY REGARDING TDR OF 15200 SQ.FT. AND ITS USER, THE ASSESSEE CAME UP WITH EXPLANATIO N THAT THE OUTSTANDING SUNDRY CREDITORS WERE NOT ON ACCOUNT OF TDR PURCHASED BUT ON ACCOUNT OF USER OF FAMILY PROPERTY AT AUNDH FOR DEVELOPMENT BY M/S. GAIKWAD DEVELOPERS. THE ASSESSEE WAS AGAIN ASKED TO FURNISH PROOF REGARDING TAXES PAID BY THE LAND OWNE RS ON ACCOUNT OF USER OF FAMILY PROPERTY FOR DEVELOPMENT. THE ASSESSEE COULD NOT FURNISH ANY PROOF OF HAVING PAID TAXES ON ACCOUNT OF TRANSFER OF THIS PROPERTY TO THE FIRM. IN FACT, IT WAS ADMITTED THAT THE TAXES HAD NOT BEEN PAID ON THIS TRANSACTION OF LAND/TDR ; THE ASSESSEE WAS CONFRONTED BY THE ASSESSING OFFICER IN THIS REGARD AND HE WAS ASKED AS TO EVEN IF HIS REVISED EXPLANATION WAS BELIEVED, THE LIABILITY COULD BE THAT OF M/S. GAIKWAD DEVELOPERS AND NOT THAT OF ASSESSEE. THE ASSESSEE WAS THUS, CONFRONTED AN D IT WAS POINTED OUT THAT THE SAID SUNDRY CREDITORS SHOWN AT 45,60,000/ - WERE NOT GENUINE AND HE WAS ASKED WHY THE SAME SHOULD NOT BE TREATED AS HIS INCOME. IN RESPONSE THERETO, THE ASSESSEE VIDE ORDER SHEET ENTRY DATED 16.12.2011 AGREED FOR THE ADDITI ON. SUBSEQUENTLY, THE ASSESSEE VIDE LETTER DATED 19.12.2011 FURNISHED EXPLANATION POINTING OUT THAT THE CREDITORS OF 45,60,000/ - WERE SHOWN AND THE SAME WAS INVESTED IN PARTNERSHIP FIRM M/S. GAIKWAD DEVELOPERS AS HIS CONTRIBUTION TO THE FIRM. THE ASSES SING OFFICER HELD THE SAID EXPLANATION OF THE ASSESSEE NOT TO BE CORRECT AND EVEN HELD THE LIABILITY SHOWN BY THE ASSESSEE AS NOT GENUINE. THE EXPLANATION OF ASSESSEE WAS HELD TO HAVE NO MERIT AND THE SAME WAS ADDED AS INCOME OF THE ASSESSEE. 4 ITA NOS.921 TO 924/PUN/2013 A.YS. 2004 - 05 TO 2007 - 08 5. THE SEC OND ISSUE WHICH WAS TAKEN UP WAS THE RECEIPTS FROM THE FIRM M/S. GAIKWAD DEVELOPERS / UNEXPLAINED CREDITS IN THE BOOKS OF ACCOUNT. THE ASSESSING OFFICER NOTED THAT M/S. GAIKWAD DEVELOPERS WAS A PARTNERSHIP FIRM WITH TWO PARTNERS I.E. ABHIJIT GAIKWAD ASS ESSEE AND SHRI KEDAR GAIKWAD, BOTH OF THEM HAD 50% SHARE IN THE PROFITS OF SAID FIRM. THE FIRM HAD DEVELOPED A PLOT OF LAND BELONGING TO THE FAMILY AND AFTER DEVELOPMENT OF THE BUILDING HAD SOLD ALL THE FLATS AND SOME SHOPS. THE DISPUTE AROSE BETWEEN THE TWO PARTNERS AND BOTH CLAIMED THAT THE BOOKS OF ACCOUNT WE RE WITH THE OTHER PERSON. THE ASSESSING OFFICER NOTED THAT THE FIRM HAD NOT PAID ANY TAXES ON ACCOUNT OF CONSTRUCTION OF BUILDING ON PLOT BELONGING TO THE FAMILY OF PARTNERS AND ALSO THE CAPITAL G AINS ON ACCOUNT OF SALE OF LAND TO FIRM WERE NOT PAID BY THE OWNERS I.E. FAMILY OF THE PARTNERS. THE ASSESSEE CLAIMED THAT ON ACCOUNT OF THIS, HE HAD TO PAY 45,60,000/ - TO THE FAMILY MEMBERS. THE LIABILITY WAS HELD TO BE NON - EXISTING AND WAS TAXED IN THE HANDS OF ASSESSEE. THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAD WITHDRAWN 25,000/ - AND SUM OF 54,96,875/ - OVER A PERIOD OF THREE YEARS FROM THE SAID FIRM . SINCE THE SAID FIRM HAD NOT PAID ANY TAXES NOR FILED ANY RETURN OF INCOME, THEN AS PER THE ASSESSING OFFICER, THE SOURCE FOR WITHDRAWAL BY THE PARTNERS WAS UNPROVED. HE OBSERVED THAT THE PROFIT OF FIRM WAS DISTRIBUTED BY THE PARTNERS WITHOUT PAYING TAXES OF THE FIRM. IN THIS REGARD, SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE WITH REGARD TO RECEIPTS FROM THE FIRM M/S. GAIKWAD DEVELOPERS I.E. FIRM WHICH WAS NOT ASSESSED TO TAX. THE ASSESSING OFFICER PROPOSED TO TAX RECEIPTS FROM THE SAID FIRM. THE SOURCES FOR THE RECEIPTS WERE NOT PROVED. THE ASSESSEE AGAIN FILED AN EXPLANATION THAT THE FIRM M/S. GAIKWAD DEVELOPERS HAD PURCHASED FSI FROM FOUR DIFFERENT PARTIES FOR TOTAL CONSIDERATION OF 45,60,000/ - , AGAINST WHICH IT WAS MUTUALLY DECIDED BETWEEN THE PARTNERS THAT THE ASSESSEE SHALL BRING IN HIS CONTRIBUTION TO THE FIRM BY PAYING LIABILI TY AGAINST THE ABOVE SAID PURCHASE OF FSI. THEREFORE, THE 5 ITA NOS.921 TO 924/PUN/2013 A.YS. 2004 - 05 TO 2007 - 08 ASSESSEE HAD SHOWN THE LIABILITY AS SUNDRY CREDITORS AND THE SAME WAS ALSO REFLECTED AS CONTRIBUTION TO THE PARTNERSHIP FIRM. THE ASSESSEE FURTHER EXPLAINED THAT BECAUSE OF THE DISPUTE BETWEEN THE PARTNERS, THE BOOKS OF ACCOUNT OF THE FIRM WERE NOT AVAILABLE. HOWEVER, OUT OF TOTAL INVESTMENT OF 47,35,000/ - , THE ASSESSEE HAD WITHDRAWN AMOUNT FROM THE SAID FIRM. HOWEVER, THE ASSESSING OFFICER FROM CAPITAL ACCOUNTS FURNISHED BY THE ASSESSEE, WAS O F THE VIEW THAT WHERE THE ASSESSEE HAD ONLY CONTRIBUTED 25,000/ - TO THE FIRM AND WHAT HAD BEEN WITHDRAWN FROM THE FIRM WAS HIS SHARE OF PROFIT AND WHERE THE FIRM HAD NOT PAID TAXES, THEN THE WITHDRAWAL WAS AS GOOD AS SHARE OF PROFIT, ON WHICH NO TAXES HA D BEEN PAID. HENCE, THE SAME WAS HELD TO BE TAXABLE IN THE HANDS OF ASSESSEE IN THE YEAR OF WITHDRAWAL. REJECTING THE PLEA OF ASSESSEE, THE ASSESSING OFFICER MADE AN ADDITION OF 64,000/ - IN ASSESSMENT YEAR 2004 - 05 ON ACCOUNT OF CASH CREDIT WITHDRAWAL F ROM THE FIRM. FURTHER, IN ASSESSMENT YEAR 2005 - 06, ADDITION WAS MADE OF 15,22,875/ - AND IN ASSESSMENT YEAR 2006 - 07, ADDITION OF 32,35,000/ - AND IN ASSESSMENT YEAR 2007 - 08 OF 6,75,000/ - , TOTALING 54,96,875/ - . ANOTHER ADDITION WHICH WAS MADE IN THE HANDS OF ASSESSEE WAS ON ACCOUNT OF INCOME FROM BUSINESS FROM GAIKWAD CONSTRUCTION OF 3 LAKHS IN ASSESSMENT YEAR 2005 - 06 AND 4,86,875/ - IN ASSESSMENT YEAR 2006 - 07. FURTHER, IN ASSESSMENT YEAR 2007 - 08, AN ADDITION OF 4,25,000/ - WAS MADE ON ACCOUNT OF INVESTMENT IN M/S. AG CONSTRUCTION. 6. THE CIT(A) UPHELD THE ORDER OF ASSESSING OFFICER AND HENCE, THE ASSESSEE IS IN APPEAL AGAINST THE SAID ORDER OF CIT(A). 7. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT VARIOUS EXPLANAT IONS WERE GIVEN BY THE ASSESSEE BEFORE THE AUTHORITIES BELOW. HOWEVER, IN THE FINAL ANALYSIS, SUM OF 45,60,000/ - WAS OFFERED TO TAX WHICH WAS THE ALLEGED TRANSACTION WITH THE PARTNERSHIP FIRM M/S. GAIKWAD DEVELOPERS. 6 ITA NOS.921 TO 924/PUN/2013 A.YS. 2004 - 05 TO 2007 - 08 ONCE THE AMOUNT HAS BEEN OFFERED TO TAX AS HIS CONTRIBUTION TO M/S. GAIKWAD DEVELOPERS, FOR WHICH SOURCE COUL D NOT BE EXPLAINED PROPERLY, THEN THE WITHDRAWAL FROM THE SAID PARTNERSHIP FIRM, OUT OF OFFER OF ADDITIONAL INCOME , CANNOT BE TAXED AGAIN IN THE HANDS OF ASSESSEE. IN RESPECT OF ADD ITION OF 3 LAKHS AND 4,8 6 ,875/ - , THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE SAID INCOME WAS THE SALARY DRAWN AS PARTNER FROM THE PARTNERSHIP FIRM, WHICH THE ASSESSEE HAD OFFERED IN THE ORIGINAL RETURN OF INCOME ITSELF A ND ADDING THE SAME SEPARATELY RESULTS IN DOUBLE TAXATION IN THE HANDS OF ASSESSEE. HE FURTHER REFERRED TO THE ALLEGED WITHDRAWALS FROM M/S. GAIKWAD DEVELOPERS TOTALING 54,96,875/ - AND INITIAL CONTRIBUTION OF 25,000/ - AND POINTED OUT THAT NO FURTHER AD DITION IS TO BE MADE IN THE HANDS OF ASSESSEE IN THIS REGARD. HE SAID SIMILAR ARGUMENTS ARE BEING MADE AGAINST THE AMOUNT INVESTED IN M/S. AG CONSTRUCTION WHICH WAS ADDED IN THE HANDS OF ASSESSEE IN ASSESSMENT YEAR 2007 - 08. THE LEARNED AUTHORIZED REPRESE NTATIVE FOR THE ASSESSEE ALSO POINTED OUT THAT ALL THE WITHDRAWALS WERE THROUGH CHEQUE AND NOT CASH WITHDRAWALS. 8. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE PLACED RELIANCE ON THE ORDER OF ASSESSING OFFICER AND WITH SPECIAL REFERENCE TO THE DELIBERATIONS AT PAGE 2 ONWARDS AND PARA 3 AT PAGE 7 I.E. SHOW CAUSE NOTICE TO THE ASSESSEE. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE POINTED OUT THAT THE ASSESSEE HAS FAILED TO EXPLAIN THE SOURCE OF AMOUNTS RECEIVED AND HENCE, THE SAME IS TO BE ADDED IN THE HANDS OF ASSESSEE. 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION HAD SHOWN LIABILITY OF 45,60,000/ - BEING SUNDRY CREDITORS. SHOW CAUSE NOTICE WAS ISSUED TO THE 7 ITA NOS.921 TO 924/PUN/2013 A.YS. 2004 - 05 TO 2007 - 08 ASSES SEE TO EXPLAIN THE SAME BY THE ASSESSING OFFICER . THE EXPLANATION OF ASSESSEE IN THIS REGARD WAS AS UNDER: - IN CONTINUATION TO OUR EARLIER SUBMISSION, WE WISH TO SUBMIT THE FOLLOWING DETAILS REGARDING THE SUNDRY CREDITORS OF RS.45,60,000/ - : - THE ASSESSEE HAS PURCHASED FSI FROM THE FAMILY MEMBERS FOR HIS PARTNERSHIP FIRM M/S. GAIKWAD DEVELOPERS. THE ASSESSEE PURCHASED THE FSI OF 15200 SQ.FTS. @ RS.300/ - DURING MARCH 2003 FROM MR. SUBHASH S. GAIKWAD, NANASAHEB S. GAIKWAD, MRS. KOUSALYA D. PAYGUDE, MRS. BEBI A. SHITOLE & MRS. LATA S. PAWAR FOR TOTAL CONSIDERATION OF RS.45,60,000/ - THE ASSESSEE HAS SHOWN THE SUNDRY CREDITORS ON BEHALF OF THE FIRM. IT IS PERTINENT TO NOTE THAT THE ASSESSEE HAS SHOWN THE CREDITORS OF RS.45,60,000/ - AND INVESTED THE SA ME IN THE PARTNERSHIP FIRM M/S. GAIKWAD DEVELOPERS AS HIS CONTRIBUTION. DUE TO FAMILY DISPUTES, THE FIRM HAS NOT YET PAID THE ABOVE DUES AND THEREFORE THE DUES ARE OUTSTANDING TILL DATE. IT IS PERTINENT TO NOTE THAT SINCE THE DAY TO DAY TRANSACTIONS WERE LOOK AFTER BY ANOTHER PARTNER, THE BOOKS OF ACCOUNT OF THE FIRM ARE WITH THE OTHER PARTNER. DUE TO FAMILY DISPUTE WITH THE OTHER PARTNER, THE ASSESSEE IS UNABLE TO PRODUCE THE BOOKS OF ACCOUNT AND THE SUPPORTING EVIDENCES TO SHOW THE AUTHENTICITY OF THE SUNDRY CREDITORS OF RS.45,60,000/ - . THEREFORE TO HAVE PEACE OF MIND AND TO AVOID ANY FURTHER DISPUTES AND PENALTY PROCEEDINGS, THE ASSESSEE HEREBY ADMIT THE SAME AS HIS INCOME AND AGREE TO PAY THE INCOME TAX ACCORDINGLY INSPITE OF THE FACT THAT LIABILITY OF RS.45,60,000/ - IS TO BE PAID. 10. THE CLAIM OF ASSESSEE WAS THAT IT HAD PURCHASED FSI FROM THE FAMILY MEMBERS AND TRANSFERRED THE SAME TO THE PARTNERSHIP FIRM M/S. GAIKWAD DEVELOPERS. HOWEVER, THE ASSESSEE SHOWED THE SAME AS ITS LIABILITY BY SHOWING CREDITORS AT 45,60,000/ - AND ON THE OTHER HAND, SHOWING INVESTMENT IN PARTNERSHIP FIRM M/S. GAIKWAD DEVELOPERS AS HIS CONTRIBUTION. THE DUES WERE OUTSTANDING AS ON THE CLOSE OF THE YEAR . B ECAUSE OF DISPUTE BETWEEN THE PARTNERS OF M/S. GAIKWAD DEVELOPERS, THE BOOKS OF ACCOUNT COULD NOT BE PRODUCED. FURTHER, THE SAID FIRM HAD ALSO NOT FILED ANY RETURN OF INCOME NOR COMPILED ITS DETAILS I.E. NO BALANCE SHEET, NO PROFIT AND LOSS ACCOUNT. THE ASSESSEE IN THIS SCENARIO, IN ORDER TO BUY PEACE OF MIND, DECLARED ADDITIONAL INCOME OF 45,60,000/ - I.E. THE AMOUNT WHICH THE ASSESSEE CLAIMS THAT IT HAD INVESTED IN THE PARTNERSHIP FIRM M/S. GAIKWAD DEVELOPERS; ON THE GROUND THAT THE SOURCE OF SAID AMOU NT IS NOT EXPLAINED. SO, THE ASSESSEE HAS SHOWN HIS 8 ITA NOS.921 TO 924/PUN/2013 A.YS. 2004 - 05 TO 2007 - 08 CAPITAL CONTRIBUTION TO M/S. GAIKWAD DEVELOPERS AT 45,60,0 00/ - IN ASSESSMENT YEAR 2004 - 05, WHICH HAS BEEN ADDED IN THE HANDS OF ASSESSEE. 11. NOW, THE SECOND ASPECT OF THE SAID CONTRIBUTION IS THAT AG AINST THE SAME, THE ASSESSEE FROM YEAR TO YEAR HAS WITHDRAWN THE AMOUNT FROM SAID FIRM THROUGH CHEQUES. THE ASSESSEE CLAIMS THAT ONCE IT HAS PAID TAXES ON HIS CAPITAL CONTRIBUTION, THEN WITHDRAWALS MADE FROM THE SAID AMOUNT CANNOT BE AGAIN TAXED IN HIS HA NDS AS THAT WOULD LEAD TO DOUBLE TAXATION. WE FIND MERIT IN THE PLEA OF ASSESSEE. THE START OF INVESTMENT IN THE HANDS OF ASSESSEE WAS THE SUNDRY CREDITORS OF 45,60,000/ - SHOWN BY THE ASSESSEE, WHICH THE ASSESSEE CLAIMED WAS HIS CAPITAL CONTRIBUTION TO THE FIRM M/S. GAIKWAD DEVELOPERS ON ACCOUNT OF PURCHASE OF TDR. HOWEVER, IN THE ABSENCE OF COMPLETE EVIDENCE AVAILABLE WITH THE ASSESSEE, THE SAID PLEA COULD NOT BE EXPLAINED AND HENCE, THE ASSESSEE OFFERED THE SOURCE OF 45,60,000/ - AS HIS ADDITIONAL I NCOME. ONCE THE SOURCE HAS BEEN EXPLAINED IN THE HANDS OF ASSESSEE, MAY BE THROUGH ADDITIONAL INCOME, BUT IT STANDS ESTABLISHED THAT THE ASSESSEE HAD SOURCE FOR MAKING INVESTMENT IN M/S. GAIKWAD DEVELOPERS. IN ADDITION, THE ASSESSEE HAD ALSO MADE CONTRIB UTION OF 25,000/ - TO THE CAPITAL ACCOUNTS WHICH HAS BEEN ACCEPTED BY THE ASSESSING OFFICER. 12. NOW, THE SECOND ASPECT OF THE SAME IS WITHDRAWAL S MADE BY THE ASSESSEE FROM YEAR TO YEAR WHICH WERE AS UNDER: - SR. NO. ASSESSMENT YEARS AMOUNT (RS.) 1 2004 - 05 64,000 2 2005 - 06 15,22,875 3 2006 - 07 32,35,000 4 2007 - 08 6,75,000 54,96,875 ADD. INITIAL CONTRIBUTION 25,000 TOTAL 55,21,875 9 ITA NOS.921 TO 924/PUN/2013 A.YS. 2004 - 05 TO 2007 - 08 13. OUT OF 54,96,875/ - , SOURCE TO THE EXTENT OF 45,60,000/ - STANDS EXPLAINED IN THE HANDS OF ASSESSEE AND HENCE, THERE IS NO MERIT IN MAKING ANY ADDITION ON THIS ACCOUNT IN THE HANDS OF ASSESSEE. THE BALANCE SUM OF 7,86, 875/ - IS OUT OF SALARY FROM THE PARTNERSHIP FIRM DUE TO THE ASSESSEE WHICH HAS BE EN WITHDRAWN IN ASSESSMENT YEAR 2005 - 06 AT 3 LAKHS AND IN ASSESSMENT YEAR 2006 - 07 AT 4,86,875/ - . THE SAID AMOUNT HAS BEEN SHOWN BY THE ASSESSEE AS PART OF ITS RETURNED INCOME AND THE SAME HAS BEEN ADOPTED BY THE ASSESSING OFFICER. IN OTHER WORDS, THE ASSESSEE HAS EXPLAINED WITHDRAWALS TO THE EXTENT OF 7,86,875/ - ALSO . ACCORDINGLY, WE ACCEPT THE EXPLANATION OF ASSESSEE TO THE EXTENT OF 45,60,000/ - WHICH WAS OFFERED BY THE ASSESSEE AS ITS ADDITIONAL INCOME AND 7,86,875/ - AS THE SALARY DRAWN FROM PARTNERSHIP FIRM AND 25,000/ - AS INITIAL CONTRIBUTION TO THE PARTNERSHIP FIRM. THE ASSESSING OFFICER ACCORDINGLY, SHALL COMPUTE THE BALANCE ADDITION, IF ANY, IN THE HANDS OF ASSESSEE IN THE RESPECTIVE YEARS, AFTER AFFORDING REASONABLE OPPORTUNITY OF HEA RING TO THE ASSESSEE. 14. NOW, COMING TO THE LAST GROUND OF APPEAL RAISED IN ASSESSMENT YEAR 2007 - 08 AGAINST THE ADDITION OF 4,25,000/ - . THE ASSESSEE IN THIS REGARD EXPLAINED THAT IT HAD INTRODUCED CAPITAL IN CASH OF 7,50,000/ - , OUT OF WHICH SUM OF 4,25,000/ - WAS TREATED AS UNEXPLAINED. THE ASSESSEE HAS WITHDRAWN 45,60,000/ - AND 7,86,875/ - FROM M/S. GAIKWAD DEVELOPERS. HOWEVER, WHETHER ANY AMOUNT WAS AVAILABLE WITH THE ASSESSEE AGAINST CASH DEPOSIT OF 7,50,000/ - WHICH WAS HIS CAPITAL CONTRIB UTION IN THE FIRM M/S. AG CONSTRUCTION NEEDS VERIFICATION AND IN CASE THE ASSESSEE CAN ESTABLISH THE SOURCE OF CASH, THEN WITHDRAWALS OUT OF SAID CONTRIBUTION TO THE EXTENT OF 4,25,000/ - STANDS EXPLAINED. ACCORDINGLY, WE DIRECT THE ASSESSING OFFICER TO VERIFY THE PLEA OF 10 ITA NOS.921 TO 924/PUN/2013 A.YS. 2004 - 05 TO 2007 - 08 ASSESSEE IN THIS REGARD AND DECIDE THE ISSUE. THE GROUND OF APPEAL NO.3 RAISED BY THE ASSESSEE IS THUS, ALLOWED FOR STATISTICAL PURPOSES. 15. THE GROUNDS OF APPEAL NO.1 AND 2 ARE LINKED TO WITHDRAWAL FROM THE PARTNERSHIP FIRM M/S.GAIKW AD DEVELOPERS FOR WHICH, WE HAVE DIRECTED THE ASSESSING OFFICER TO COMPUTE BALANCE ADDITION, IF ANY, IN THE HANDS OF ASSESSEE. ACCORDINGLY, THE SAME IS ALLOWED FOR STATISTICAL PURPOSES. 16. IN THE RESULT, APPEALS OF ASSESSEE FOR ASSESSMENT YEARS 2004 - 05 TO 2006 - 07 ARE PARTLY ALLOWED AND APPEAL FOR ASSESSMENT YEAR 2007 - 08 IS ALLOWED FOR STATISTICAL PURPOSE . ORDER PRONOUNCED ON THIS 25 TH DAY OF JANUARY, 201 8 . SD/ - SD/ - ( ANIL CHATURVEDI ) ( SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 25 TH JANUARY, 2018 GCVSR / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS) - CENTRAL, PUNE. 4. THE CIT(CENTRAL), PUNE. 5. , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE