ACIT, Ajmer V. KUSUM DEVI KKVIJAYVARGIYA, Kishangarh

ITA 942/JPR/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4990 (ITAT-JAIPUR)
• Duration Of Justice: 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-10-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 07-12-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R S DAGURADDL CIT DHK
• Assessee Lawyers: NIKILESH KATARIA
• Keywords: Reopening of assessment; Unexplained investment; Search and seizure; Loose papers; Difference of opinion; Corroborative evidences; Accommodation entries; Onus to prove; Reassessment proceedings
• Section: 133A; 133(6); 68; 148

Judgement Text

;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS [KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ ITA NO. 942,943,944 & 945/JP/15 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 TO 2011-12 THE ACIT, CENTRAL CIRCLE, AJMER CUKE VS. SMT. KUSUMDEVI VIJAYVARGIYA, NEAR RAM MANDIR, CHHABRA COLONY, BEHIND BUS STAND MADANGANJ, KISHANGARH LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AIGPV 4323B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 932, 933, 934 & 935 /JP/15 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 TO 2011-12 THE ACIT, CENTRAL CIRCLE, AJMER CUKE VS. SMT. SUDARSHNA SOMANI H.NO.26/84 NEAR JANGID DHARAMSALA, C LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. BGUPS 7674 F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 940 & 941/JP/15 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10& 2010-11 THE ACIT, CENTRAL CIRCLE, AJMER CUKE VS. SHRI NARESH KUMAR AGARWAL, NEAR BANI THANI BHOJNALAYA, AJMER ROAD, DAGA GALI, MADANGANJ, KISHNGARH. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ACNPA 7149 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT ITA NO. 943/JP/15 ACIT,CC, AJMER VS. SMT. KUSUMDEVI VIJAYVARGIYA, KIS HANGARH 2 FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI NIKILESH KATARIA (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI R.S. DAGUR(ADDL. CIT ) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 21.07.2016 ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 20/10/2016. VKNS'K@ ORDER PER SHRI VIKRAM SINGH YADAV, A.M. ALL THESE APPEALS HAVE BEEN FILED BY THE REVENUE AG AINST THE ORDER OF LD CIT(A) WHERE THE FACTS AND CIRCUMSTANCES OF THE CAS E AND THE GROUNDS OF APPEAL ARE COMMON. THE SAME WERE HEARD TOGETHER AN D DISPOSED OFF BY THIS CONSOLIDATED ORDER. AS SUBMITTED AND AGREED BY BOTH THE PARTIES, FOR TH E PURPOSES OF DISCUSSIONS, CASE OF SMT. KUSUMDEVI VIJAYVARGIYA FOR AY 2009-10 IN ITA NO. 943/JP/15 WHICH ARE PARI-MATERIA WITH OTHER CASES WAS TAKEN UP AND ARGUMENTS OF BOTH PARTIES WERE HEARD. IN THIS CASE, THE REVENUE HAS TAKEN FOLLOWING GROUN DS OF APPEAL AGAINST THE ORDER OF LD. CIT(A)-II, UDAIPUR DATED 23.09.2015 A S UNDER: 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) WAS RIGHT IN MODIFYING THE G.P. ADDITION MADE BY TH E AO ON TRANSACTION FACILITATED BY THE ASSESSEE BY HOLDING THAT ONLY NE T COMMISSION INCOME OF RS.225/- PER RS. 1 LAC COULD BE TAXED ON THE BAN K DEPOSITS TAKEN BY THE AO AS TURNOVER WITHOUT GIVING ANY SPECIFIC FIND INGS ON THE OWNER OF THE DEPOSITS MADE IN THE BANK ACCOUNTS. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE CIT(A) WAS RIGHT IN NOT APPRECIATING THE FACTS THAT THE AS SESSEE HAS BEEN UNABLE TO PRODUCE THE DEPOSITORS WHO HAVE DEPOSITED CASH I N BANK ACCOUNT, SHE ALSO FAILED TO GIVE THE NAME AND ADDRESSES OF THE PERSONS (BENEFICIARIES) AND IN ABSENCE OF THESE BASIC DETAILS, IT WAS NOT P ROVED BY THE ASSESSEE THAT SHE WAS PROVIDING FACILITY OF BRINGING UNRECOR DED SALES PROCEEDS OF ITA NO. 943/JP/15 ACIT,CC, AJMER VS. SMT. KUSUMDEVI VIJAYVARGIYA, KIS HANGARH 3 ANY SELLER THROUGH HER BANK ACCOUNTS AND THEREFORE IN THIS SITUATION, THERE WAS NO OTHER OPTION EXCEPT TO HOLD THAT THE D EPOSITS IN BANK ACCOUNTS ARE NOTHING BUT ASSESSEES OWN TRADING REC EIPTS/SALE PROCEEDS AND WITHDRAWALS WERE FOR THE CORRESPONDING PURCHASE S AND EXPENSES. 3.(I) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCE S OF THE CASE THE CIT(A) WAS RIGHT IN NOT APPRECIATING THE FACTS THAT IN THI S CASE IT WAS ESTABLISHED BY THE AO THAT ASSESSEE WAS ENGAGED IN THE BUSINESS OF MARBLE TRADING AND THE DEPOSITS IN BANK ACCOUNTS REPRESENT THE SAL E PROCEEDS. (II) THE AO HAS RIGHTLY APPLIED THE RATE ON GROSS PROFIT OF TRADING BUSINESS OF MARBLE CONSIDERING THE AMOUNT OF DEPOSITS IN HER BA NK ACCOUNTS AS TRADING RECEIPTS UNRECORDED SALES IN HER HANDS. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE INVES TIGATION WING OF THE INCOME TAX DEPARTMENT CARRIED OUT SURVEY U/S 133A O F THE IT ACT ON 18.01.2011 AT THE BUSINESS CUM RESIDENTIAL PREMISES OF THE ASSESSEE AND ALSO RECORDED STATEMENTS ON OATH OF THE ASSESSEE AND THE HUSBAND OF THE ASSESSEE WHO WAS MANAGING THE AFFAIRS OF THE ASSESSEE. THE S URVEY WAS BASED ON THE FIU-IND INFORMATION THAT SUSPICIOUS TRANSACTIONS IN THE FORM OF CASH DEPOSITS BELOW THE THRESHOLD LIMIT WERE TAKING PLACE IN THE BANK ACCOUNTS MAINTAINED BY THE ASSESSEE IN DIFFERENT BRANCHES OF KISHANGARH . THEREAFTER THE CASE OF THE ASSESSEE WAS CENTRALISED FROM ITO, WARD, KISHANGARH TO ACIT CENTRAL CIRCLE, AJMER PURSUANT TO CIT, AJMERS ORDER NO. CIT/AJM/20 10-11/652 DATED 10.06.2011. THE ASSESSEE HAD FILED HER ORIGINAL RE TURN OF INCOME ON 29.10.2012 DECLARING TOTAL INCOME AT RS.2,48,790. A NOTICE U/S 148 OF THE IT ACT WAS THEREAFTER ISSUED ON 18.03.2013. IN COMPLIANCE , THE ASSESSEE STATED THAT RETURN OF INCOME FILED EARLIER ON 29.10.2012 MAY BE TREATED AS RETURN IN RESPONSE TO NOTICE U/S 148 OF THE ACT, AND HAS ALS O ASKED REASONS FOR RE- OPENING THE ASSESSMENT. THE REASONS RECORDED WERE F ORWARDED TO HER AND AFTER RECEIVING HER OBJECTIONS, THE SAME WERE DISPO SED OFF AND THEREAFTER, THE ITA NO. 943/JP/15 ACIT,CC, AJMER VS. SMT. KUSUMDEVI VIJAYVARGIYA, KIS HANGARH 4 AO PROCEEDED WITH THE ISSUANCE OF NOTICE U/S 143(2) OF THE ACT AND, AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE, GIVEN H IS FINDINGS AS UNDER: THE ASSESSEE HAS CLAIMED TO HAVE EARNED INCOME FRO M COMMISSION. AS MENTIONED HEREIN ABOVE, IN THIS CASE A SURVEY ACTIO N U/S 133A WAS CARRIED OUT BY INVESTIGATION WING. DURING THE COURSE OF SURVEY, STATEMENT OF ASSESSEES HUSBAND WAS RECORDED AS HE WAS MANAGING AFFAIRS OF THE BUSINESS TRANSACTIONS CARRIED OUT IN THE BANK ACCOUNTS MAINTAINED BY HIM AND HIS WIFE AND HE WAS ASKED REGARDING BUSINESS ACTIVITIES CARRIED OUT AND HE HAS STATED THAT ALL THE ACTIVITIES WERE CONDUCTED FROM HIS RESIDENTIAL PREM ISES. HE FURTHER STATED THAT HIS BANK ACCOUNTS WERE USED BY MARBLE TRADERS TO BR ING CASH AGAINST UNRECORDED SALES IN THEIR BOOKS OF ACCOUNTS. THE CA SH DEPOSITED BY OTHER PARTIES BASED IN DIFFERENT PARTS OF THE COUNTRY WAS WITHDRAWN AND HANDED OVER TO THE MARBLE TRADERS AND FOR THIS ACTIVITY THEY US ED TO PAY COMMISSION. HE WAS CONFRONTED REGARDING TRANSACTIONS IN HIS WI FES BANK ACCOUNTS AND HE STATED THAT THE ENTIRE TRANSACTIONS IN THE B ANK ACCOUNTS WERE CARRIED OUT BY HIM. HE FURTHER STATED THAT DEPOSITS DO NOT BELONG TO HER AND THE AMOUNTS HAVE BEEN DEPOSITED BY OUT STATION VARIOUS PARTIES AND AFTER MAKING THE SAME HAS BEEN HANDED OVER TO THE CONCERNED PART IES (MARBLE TRADERS). HE ALSO STATED THAT NO BOOKS OF ACCOUNTS ARE MAINTAINE D. DURING THE COURSE OF SURVEY, HE WAS ASKED REGARDING NAMES OF THE PARTIES FOR WHOM THESE TRANSACTIONS HAVE BEEN DONE IN HIS WIFES BANK ACCO UNTS. HE REPLIED THAT ALL THE DEPOSITS IN THE BANK ACCOUNTS BELONG TO DIFFERENT P ARTIES. IT IS RELEVANT TO MENTION HERE THAT THE PREVAILING MARKET PRACTICE IN THE BUSINESS OF MARBLE TRADING IS THAT THERE IS LARGE S CALE UNDER INVOICING AND UNDER-BILLING OF SALES. GENERALLY, FOR OBTAINING SA LE CONSIDERATION OF ACTUAL TRANSACTION FROM THE BUYERS LOCATED OUTSIDE THE HOM ETOWN OR THROUGHOUT INDIA, THE TRADERS OBTAIN PART AMOUNT THROUGH CHEQU ES AND FOR BALANCE ITA NO. 943/JP/15 ACIT,CC, AJMER VS. SMT. KUSUMDEVI VIJAYVARGIYA, KIS HANGARH 5 AMOUNT, THEY HAVE BEEN USING THEIR CONFIDANTS (FACI LITY PROVIDERS). THE CONFIDANTS ARE HAVING MULTIPLE BANK ACCOUNTS EITHER IN THEIR NAME OR IN THE NAMES OF THEIR FAMILY MEMBERS OR CONCERNS/FIRMS. TH EIR BANK ACCOUNT NUMBERS ARE INTIMATED TO THE BUYERS WHO DEPOSIT THE BALANCE AMOUNT WHICH IS ACTUALLY ON-MONEY, IN THE BANK ACCOUNT OF THE CONFI DANTS. THE BUYERS DEPOSIT AMOUNT BELOW RS.50,000/- TO AVOID MENTIONING PAN ON PAY-IN-SLIPS. AFTER RECEIPT OF AMOUNT IN BANK ACCOUNT, THE CONFIDANTS I .E. FACILITY PROVIDERS WITHDRAW THE AMOUNT OF ON-MONEY AND HAND OVER TO TH E BENEFICIARIES I.E. SELLERS. THE FACILITY PROVIDERS CLAIM THAT THEY REC EIVE RS.200/- TO RS.300/- PER RS. 1 LAC. RECEIVED IN THEIR BANK ACCOUNT BY WAY OF COMMISSION. AS HAS BEEN ADMITTED BY THE ASSESSEE DURING THE CO URSE OF SURVEY U/S. 133A, THE ASSESSEE IS ALSO PRIMA FACIE FOUND ENGAGE D IN PROVIDING FACILITY OF BRINGING CASH PAYMENT OF THE MARBLE TRADERS BY ALLO WING THEM TO USE HER BANK ACCOUNTS. ALSO THIS IS IN CONFORMITY WITH THE PREVA ILING MARKET PRACTICE IN THIS BUSINESS IN THIS REGION. ON PERUSAL OF BALANCE SHEE T FILED BY THE ASSESSEE ALONGWITH THE RETURN OF INCOME, IT IS SURPRISING TH AT NO BANK ACCOUNT HAS BEEN DISCLOSED WHEREAS THE ASSESSEE IS MAINTAINING FOLLO WING BANK ACCOUNTS:- S. NO. BANK A/C NO. TURNOVER 1. 8312 1010 0000 30 (SYNDICATE) RS.25,000/ - 2. 0288 0001 0022 7846 (PNB) RS.4,14,18,146/ - 3. 0288 0001 0003 9366 (PNB) RS.6,48,62,444/ - 4. 0288 0021 0004 0441 (PNB) RS.3,03,48,253/ - 5. 0288 0021 0004 2689 (PNB) RS.88,90,988/ - 6. 1567 7020 0000 989 (UCO) RS.7,99,927 / - TOTAL RS. 14,63,44,758/ - LESS: AMOUNT OF TRANSFER RS. 3,25,84,300/- TOTAL AMOUNT RS. 11,37,60,458/- IT IS FURTHER NOTICED THAT THE DEPOSITS AS WELL AS WITHDRAWALS APPEARING IN THESE BANK ACCOUNTS HAVE NOT BEEN ACCOUNTED FOR IN THE BOOKS OF ACCOUNT AND ITA NO. 943/JP/15 ACIT,CC, AJMER VS. SMT. KUSUMDEVI VIJAYVARGIYA, KIS HANGARH 6 NOT BEEN CONSIDERED IN RETURN OF INCOME. IN THE SIT UATION, IN ORDER TO DETERMINE THE INCOME ATTRIBUTABLE TO THESE BANK TRA NSACTIONS, THE ASSESSEE VIDE QUESTIONNAIRE DATED 02.09.2013 WAS ASKED THE F OLLOWING SPECIFIC QUESTIONS:- I. PARTY WISE DETAILS OF DEPOSITS MADE IN ALL THE BANK ACCOUNTS WITH NAME AND ADDRESS OF THE BENEFICIARIES. II. ASSESSMENT YEAR WISE TOTAL AMOUNT OF DEPOSIT IN EACH BANK ACCOUNT. IN COMPLIANCE SHE HAS STATED THAT COMPLETE DETAILS OF MARBLE TRADERS WITH ADDRESSES WERE FURNISHED TO THE INVESTIGATION WING. FURTHER, THE ASSESSEE HAS SUBMITTED NEITHER BANK STATEMENTS NOR NAMES AND ADDRESSES OF THE BENEFICIARIES WITH DETAILS OF DEPOSITS PARTY WISE A ND ASSESSMENT YEAR WISE TO THE UNDERSIGNED. THEREFORE, BANK STATEMENTS WERE CA LLED FROM THE BANK AUTHORITIES BY ISSUE OF NOTICES U/S 133(6) OF THE I .T. ACT AND COPIES OF THE SAME WERE ALSO MADE AVAILABLE TO THE ASSESSEE. AND THEN, THE AO FINALLY CONCLUDED HIS FINDINGS STA TING AS UNDER: THE ASSESSEE HAS FAILED TO PRODUCE ANY OF THE PER SONS TO PROVE THAT SHE HAS DONE WORK FOR THEM TO BEING CASH THROUGH HER BA NK ACCOUNTS FROM OUT STATION AND HANDED OVER TO THEM. THUS SHE REMAINE D UNABLE TO PROVE THE IDENTITY OF THE PERSONS TO WHOM FACILITY OF BRINGIN G CASH AGAINST SALES WAS PROVIDED AND ALSO FAILED TO PROVE GENUINENESS OF T RANSACTIONS MADE IN HER BANK ACCOUNTS. THUS THE ASSESSEE HAS BEEN UNABLE T O PRODUCE THE DEPOSITORS ITA NO. 943/JP/15 ACIT,CC, AJMER VS. SMT. KUSUMDEVI VIJAYVARGIYA, KIS HANGARH 7 WHO HAD DEPOSITED CASH IN BANK ACCOUNT. SHE ALSO F AILED TO GIVE THE NAMES AND ADDRESSES OF THE PERSONS TO WHOM THE AMOUNT WIT HDRAWN FROM THESE ACCOUNTS ON VARIOUS DATES WERE GIVEN. IN ABSENCE OF THIS BASIC INFORMATION, IT CANNOT BE ACCEPTED THAT THE ASSESSEE WAS JUST ALLOW ING HER BANK ACCOUNT TO BRING THE SALE PROCEEDS OF UNACCOUNTED SALES OF SOM E SELLERS AND FOR THAT HE USED TO GET COMMISSION. HAD THE ASSESSEE PRODUCED T HE DEPOSITORS AS WELL AS BENEFICIARIES TO WHOM PAYMENTS WERE MADE, THE ASSES SEES CLAIM COULD BE ACCEPTED THAT SHE WAS JUST A BROKER EARNING COMMISS ION. IN ABSENCE OF THESE BASIC DETAILS, IT IS NOT PROVED THAT SHE WAS PROVID ING FACILITY OF BRINGING UNRECORDED SALES PROCEEDS OF ANY SELLERS THROUGH HE R BANK ACCOUNTS. IN THE SITUATION, THERE IS NO OTHER OPTION EXCEPT TO HOLD THAT THE DEPOSITS IN BANK ACCOUNTS ARE NOTHING BUT ASSESSEES OWN TRADING REC EIPTS/SALE PROCEEDS AND WITHDRAWALS WERE FOR THE CORRESPONDING PURCHASES AN D EXPENSES. IN LIGHT OF THESE FACTS, IT IS ESTABLISHED THAT ASSESSEE WAS EN GAGED IN THE BUSINESS OF MARBLE TRADING AND THE DEPOSITS IN BANK ACCOUNTS ON DIFFERENT DATES REPRESENT THE SALE PROCEEDS. THEREAFTER, THE AO PROCEEDED WITH THE ESTIMATION OF INCOME CONSIDERING THE NATURE OF BUSINESS AS MARBLE TRADING AND A SHOW-CAU SE WAS ISSUED DATED 3.3.2014 ASKING THE ASSESSEE TO SHOW-CAUSE WHY THE GROSS PROFIT ON UNDISCLOSED TURNOVER AMOUNTING TO RS 11,37,60,458 F OR THE AY 2009-10 SHOULD NOT BE ADDED TO THE TOTAL INCOME. AND THEREAFTER, H E PROCEEDED TO APPLY PREVAILING RATE OF GROSS PROFIT OF TRADING BUSINESS OF MARBLE IN AND AROUND KISHANGARH AREA CONSIDERING THE AMOUNT OF DEPOSITS IN HER BANK ACCOUNTS AS TRADING RECEIPTS BEING UNRECORDED SALES IN HER HAND S AND APPLIED 13% GROSS PROFIT ON TURNOVER OF RS. 11,37,60,458/- WHICH WORK S OUT TO RS.1,47,88,860/- WHICH WAS ADDED TO THE INCOME OF THE ASSESSEE. ITA NO. 943/JP/15 ACIT,CC, AJMER VS. SMT. KUSUMDEVI VIJAYVARGIYA, KIS HANGARH 8 2.1 WE NOW REFER TO THE FINDINGS OF THE LD. CIT(A) WHICH HAS BEEN HEAVILY RELIED UPON BY THE LD AR. THE SAME ARE REPRODUCED AS UNDER: (6) I HAVE CONSIDERED THE ASSESSMENT ORDERS, THE AR GUMENTS AND WRITTEN SUBMISSIONS OF THE APPELLANT. THE REMAND REPORTS AL ONGWITH ALL THE SUPPORTING PAPER SUBMITTED BY THE AO AND THE MOST OF THE SURVE Y REPORTS AND STATEMENTS OF THE APPELLANT OF MADAN GANJ, KISHANGARH. (6.1) FROM THE PERUSAL OF THE REASONS FOR REOPENING OF THE ASSESSMENT THAT HAS BEEN ENCLOSED WITH THE REMAND REPORT THE UNDIS PUTED FACT AT A GLANCE IS THAT THE ACTION U/S 148 WAS TAKEN FOR ASSESSING THE COMMISSION INCOME FROM THE TRANSACTIONS FACILITATED BY THE APPELLANT MONE Y WITHDRAWN BY TAXPAYERS WAS GIVEN IN CASH TO MARBLE TRADERS AND WHICH IS AG AINST THE PROVISION OF INCOME TAX ACT, 1961...... ......AND LOOKING TO THIS EXTRA INCOME TAX CAN BE RECOVERED. THIS IS ALSO AN ADMITTED FACT BY THE AO AND RELEVAN T PART OF THE REMAND REPORT NO. DCIT/CC/AJM/2015-16 DATED 09.03.2015 READ AS UN DER: 6. REASONS FOR REOPENING ASSESSMENTS WERE RECORDED FOR ESCAPEMENT OF INCOME ON ACCOUNT OF COMMISSION ON AM OUNT OF UNACCOUNTED SALE CONSIDERATION OF BENEFICIARIES REC EIVED IN THEIR BANK ACCOUNT. (6.2) THE INTENTION OF ASSESSING THE COMMISSION INC OME FROM THE TRANSACTIONS FACILITATED BY THE APPELLANT LIKE PERSONS IS ESTABL ISHED FROM THE FACT THAT ONLY COMMISSION INCOME WAS TAXED IN CASES OF SHRI PRAKAS H CHAND VIJAYVARGIYA AND SHRI MANOJ KUMAR AGARWAL A.Y. 2009-10 AND THAT ACTI ON OF THE AO WAS RATIFIED BY PR. (CENTRAL) IN REJECTING THE REOPENING PROPOSA L SUBMITTED IN MARCH, 2015. THE RELEVANT PART OF THE REMAND REPORT NO.DCIT/CC/A JM/2015-16/451 DATED 07.08.2015 READ AS UNDER: (3) FURTHER IT WAS SUBMITTED TO YOUR GOODSELF IN T HE PREVIOUS LETTER NO.2419 DATED 09.03.2015 BY THE THEN AO THAT THE IN FORMATION WITH REGARD TO APPROVAL TO ISSUE NOTICE U/S 148 IN THE C ASES OF SHRI PRAKASH CHAND VIJAYVARGIYA FOR THE A.Y. 2009-10 AND SHRI M ANOJ KUMAR AGARWAL FOR THE AY 2009-10 WILL BE INITIATED TO YOU. IN TH IS CONNECTION IT IS SUBMITTED THAT THE WORTHY PRINCIPAL COMMISSIONER OF INCOME TAX(CENTRAL), JAIPUR VIDE HER OFFICE LETTER DATED 12.03.2015 HAS NOT ITA NO. 943/JP/15 ACIT,CC, AJMER VS. SMT. KUSUMDEVI VIJAYVARGIYA, KIS HANGARH 9 APPROVE THE PROPOSAL U/S 148 FOR REOPENING THE CASE S OF SHRI PRAKASHCHAND VIJAYVARGIYA AND SHRI MANOJ KUMAR AGAR WAL. (6.3) THE APPELLANT RELIED ON THE DECISION OF THE H ONBLE APEX COURT IN THE CASE OF SUN ENGINEERING REPORTED AT 198 ITR 297(SC) FOR PROPOSITION THAT ONLY THE REASONS RECORDED ARE TO BE CONSIDERED. WITH A LL DUE RESPECT TO THE DECISION, IF SOME OTHER CONCEALED INCOME IS NOTICED DURING THE PROCEEDING FOR THE RE-ASSESSMENT, THERE IS NO BAR TO TAKE COGNIZAN CE OF THE SAME. HOWEVER, THE FINDING TO THAT EFFECT MUST BE CLINCHING. (6.3.1) IN THE INSTANT CASE THE PROCEEDINGS STARTS WITH TAXATION OF COMMISSION INCOME IN THE TRANSACTIONS FACILITATED B Y THE APPELLANT FOR THE MARBLE TRADERS OF KISHAN GARH, THE ENTIRE REASSESSM ENT PROCEEDING DID NOT TURN OUT WITH EVEN IOTA OF EVIDENCE FOR THE THEORY CANVASSED BY THE AO THAT THE APPELLANT WAS IN FACT MARBLE TRADER AND GP AT T HE PREVALENT RATE ON THE TRANSACTIONS FACILITATED BY THE APPELLANT SHOULD BE TAXED. THE BASIS FOR COMING OUT WITH THIS THEORY IS NOTHING BUT AN EXCUSE NAMEL Y, WHEN AO TOLD TO PRODUCE THE ACTUAL BENEFICIARIES AT THE FAG END OF THE REASSESSMENT PROCEEDINGS, THE APPELLANT, A PERSON OF NO MEANS A ND INTRINSICALLY AND/AN ESTABLISHED ENTRY PROVIDER OF MADANGANJ, KISHANGAR H HAS FAILED TO DO SO. THIS COULD NOT BE BASIS TO SWING IN THE POSITION FROM TA XING MERE COMMISSION INCOME ON THE TRANSACTIONS FACILITATED BY THE APPE LLANT TO ESTIMATING GP ON THE SAME TRANSACTIONS FACILITATED BY THE APPELLANT BY TREATING THE APPELLANT AS MARBLE TRADER. IN FACT NONE OF THE CORROBORATING FACTORS THAT WERE INQUIRED INTO THROUGH REMAND REPORT PROCEEDING SUPPORT SUCH IMAGINARY DECISION OF THE AO. THE REMAND REPORT OF THE AO UNEQUIVOCALLY ADMI TS THAT THE APPELLANT SMT. KUSUMDEVI VIJAYVARGIYA NEITHER HAVE ESTABLISHMENT N OR INFRASTRUCTURE TO CONDUCT BUSINESS OF MARBLE TRADER AS ARGUED IN PARA 5.3. THIS IS ALSO AN ADMITTED FACT BY THE AO AND THE RELEVANT PART OF TH E REMAND REPORT NO. DCIT/CC/AJM/2015-16 DATED 09.03.2015 READ AS UNDER: IN THE FIRST PART OF ASSESSMENT ORDER, ASSESSEES ARE TERMED AS FACILITY PROVIDER ON THE BASIS OF THEIR SUBMISSION. THEY CLA IMED THAT THEY WERE GETTING COMMISSION ON THE AMOUNT OF DEPOSITS MADE B Y THE CUSTOMERS OF BENEFICIARIES KISHANGARH IN THE BANK ACCOUNTS AN D HANDED OVER AMOUNT AFTER MAKING WITHDRAWAL TO THE BENEFICIARIES . IN THE LATER PART OF ASSESSMENT ORDER THEY WERE TREATED AS MARBLE TRADER S AS GROSS PROFIT ON TURNOVER IN THEIR BANK ACCOUNTS WAS APPLIED FOR THE REASONS THAT THEY HAVE NOT MADE AVAILABLE DETAILS AS DISCUSSED IN THE FORE-GOING PARA 6. SMT. KUSUMDEVI VIJAYVARGIYA : ITA NO. 943/JP/15 ACIT,CC, AJMER VS. SMT. KUSUMDEVI VIJAYVARGIYA, KIS HANGARH 10 A) ASSESSEE IS NOT REGISTERED WITH SALES TAX DEPART MENT AND NOT FILED SALES TAX RETURN. B) ASSESSEE IS NOT REGISTERED WITH CENTRAL EXCISE A ND NOT FILED EXCISE RETURN. C) ASSESSEE HAS NOT SHOWN DEBTORS AND CREDITORS. D) ASSESSEE HAS NO PURCHASE AND SALES ACCOUT. E) ASSESSEE HAS NO DEPRECIABLE ASSETS. F) NO BOOKS OF ACCOUNTS MAINTAINED. G) ASSESSEE HAS NO SSI REGISTRATION NUMBER. H) ASSESSEE HAS NO POWER CONNECTION. (6.3.2) THE SWING IN THE POSITION FROM TAXING MERE COMMISSION INCOME ON THE TRANSACTIONS FACILITATED BY THE APPELLANT TO ES TIMATING GP ON THE SAME TRANSACTIONS TAKEN BY THE AO IS ALSO ALTOGETHER CO NTRARY TO THE BACKGROUND FACTS FOUND DURING THE SURVEY WHICH HAS BEEN REPORT ED BY THE AO IN PARA 5 ON PAGE 3 & 4 OF THE ASSESSMENT ORDERS WHICH HAS BEEN REPORTED IN PARA 2.2 ABOVE. (6.4) FROM THE UNDISPUTED FACTS FOUND IN PRECEDING PARAGRAPHS, THE INESCAPABLE CONCLUSION IS THAT THE ACTION OF THE A O IN ESTIMATING GP ON THE SAME TRANSACTIONS FACILITATED BY THE APPELLANT FOR MARBLE TRADERS OF KISHANGARH CAN NEITHER BE APPROVED IN TOTO NOR BE SUSTAINED IN ANY ALTERNATIVE WAY AS IT MILITATE AGAINST EXISTING EVIDENCES AND THE FINDING S ON RECORD. RATHER, UNDER THE FACTS AND CIRCUMSTANCES OF FACILITATORS, ENTRY PROVIDERS, THE RIGHT APPROACH IS TO TAX ONLY COMMISSION INCOME AS IT WAS DONE IN CASES OF SHRI PRAKASH CHAND VIJAYVARGIYA AND SHRI MANOJ KUMAR AGARWAL AY 2009-1 0 MENTIONED IN PARA 6.2 ABOVE WITH A SMALL REFINEMENT DISCUSSED AS FOLLOWS. (6.5) FROM THE PERUSAL OF MOST OF THE SURVEY REPORT S AND STATEMENTS RECORDED OF FACILITATORS OF MADANGANJ, KISHANGARH, PREDOMINA NT VIEW COULD BE FORMED THAT THESE FACILITATORS WERE GIVEN ABOUT RS. 300 PE R RS. LAC OR WE CAN SAY ALTERNATELY 0.3 PAISE PER RS. 100/-. THE RATE OF CO MMISSION RS.300 PER RS. LAC OR WE CAN SAY ALTERNATIVELY 0.3 PAISE PER RS. 100/- SEEMS TO BE REASONABLE CONSIDERING THEIR LIMITED ROLE OF ALLOWING CASH DE POSIT IN THE BANK ACCOUNT OF FACILITATOR AND WITHDRAWAL OF CASH BY BENEFICIARIES WITHOUT ANY DEPENDENCE OF BENEFICIARY ON THEM IN FUTURE FOR FOLLOW-UP RECORD KEEPING, VERIFICATION OF DOCUMENTS, BACKING UP FOR INVESTIGATION UNLIKE THE CASES OF OTHER ENTRY PROVIDERS WHO DO CHARGE 0.5 PAISE PER RS. 100/- AS SEEN IN THE CASES OF MANOJ KUMAR AGARWAL REPORTED AT 117 TTJ(DEL SB) 145 AS D ISCUSSED IN PARA 5.4 ABOVE. ITA NO. 943/JP/15 ACIT,CC, AJMER VS. SMT. KUSUMDEVI VIJAYVARGIYA, KIS HANGARH 11 (6.6) MOREOVER FROM THE PERUSAL OF THE SURVEY REPOR TS AND STATEMENTS RECORDED OF FACILITATORS OF MADAN GANJ, KISHANGARH, IT IS ALSO OBSERVED THAT EXPENSES HAVE BEEN CLAIMED OUT OF THIS COMMISSION I NCOME OF RS. 300 PER RS. 1 LAC. HOWEVER, THE RANGE IS SO WIDE FROM RS. 100 PER RS 1 LAC OF TRANSACTION FACILITATED TO RS. 250 PER RS. 1 LAC OF TRANSACTION FACILITATED. AND THEREFORE IT CANNOT BE ACCEPTED IN TOTO. HERE, TAKING THE CUE F ROM THE CASES OF MANOJ KUMAR AGARWAL REPORTED AT 117 TTI (DEL SB) 145 AND SANJAY KUMAR GARG REPORTED AT 114 TTI(DEL) WHEREIN AS MUCH AS 20% TO 30% OF THE COMMISSION INCOME IS ALLOWED AS EXPENSES, I THINK IT WOULD BE CLOSE TO JUSTICE IF AN EXPENSES OF 25% OF COMMISSION INCOME IS ALLOWED. I N OTHER WORDS EXPENSES OF RS. 75 PER RS. 1 LAC OF TRANSACTION FACILITATED COU LD BE ALLOWED. (6.7) THE COMBINED FINDING OF ABOVE PARA 6.5 AND 6. 6 IS THAT A NET COMMISSION OF RS.225 PER RS. 1 LAC OF TRANSACTION FACILITATED COULD BE TAXED ON THE BANK DEPOSITS TAKEN BY THE AO. WITH THE ABOVE FINDING, THE GP ADDITION MADE BY TH E AO ON TRANSACTION FACILITATED BY APPELLANT IS MODIFIED FOR UPHOLDING ONLY NET COMMISSION INCOME AS CONCLUDED IN PARA 6.7. THUS THESE GROUNDS ARE T REATED AS PARTLY ALLOWED. 2.2 WE NOW REFER TO SUBMISSIONS OF THE LD AR WHO HA S VEHEMENTLY ARGUED THE MATTER AND SUBMITTED AS UNDER: (1.1.1) THE LD. AR OF THE ASSESSEE SUBMITTED THAT T HE STATEMENT OF THE HUSBAND OF THE ASSESSEE CLEARLY PROVE THAT IT HAS E ARNED ONLY COMMISSION INCOME. DURING THE COURSE OF STATEMENT IN RESPONSE TO Q. NO .2, IT WAS CLEARLY STATED BY THE HUSBAND OF THE ASSESSEE SHRI PRAKASH CHAND VIJAYVARGIYA, THAT HE WAS MANAGING THE BANK ACCOUNTS OF THE ASSESSEE THRO UGH WHICH THE ENTIRE TRANSACTIONS TOOK PLACE. IN THE STATEMENT, THE MODU S OPERANDI OF THE WORKING OF THE ASSESSEE WAS STATED IN DETAIL. WE ARE REPROD UCING HEREWITH THE RELEVANT EXTRACT OF THE STATEMENT OF THE ASSESSEE WHICH WAS TAKEN ON 6.1.2011: IZ0UA0 2 VKI DK O;OLK; D;K GSA D;K VKI VK;DJNKRK GS ;FN GK RKS VIUK PAN NO. CRK, ,OA ;G HKH CRK;S FD VKI DGKA VK;DJ FOOJ.KH HKJRS GS A IZ0UA0 2 ESA CKGJ LS VYX&VYX 'KGJKSA LS FHKUU&FHK UU O;FDR;KSA@IKFVZ;KSA LS ESJS UKE LS ;K ESJH IRUH JHERH DQLQE NSOH FOT;OXHZ; DS UKE LS ;GKA FD'K UX<+ FLFKR FHKUU&FHKUU CSADKS ESA FLFKR GEKJS [KKRKSA ESA JDE UDN TEK DJOKRK GWA FQJ ;GKA YKSDY O;FDR ;K QEZ EQ> LS ;G JKF'K UDN GKSRK GS] BL RJG LS ESA ESJS CSAD [KKRKSA DKS F HKUU&FHKUU O;FDR;KSA@IKFVZ;KSA DKS UDN JKF'K O;OGKJ DS FY, MIYC/K DJOKRK GWA ;G JKF'K ESA ATM LS ;K PSD LS ;K DHKH&DHKH ESJH WIFE ;K CPPS HKH FUDKYRS GSA ;G LKJS DK;Z ESA MIJ&MIJ GH DJRK GWAA BL RJG LS ESA ISLS DH ITA NO. 943/JP/15 ACIT,CC, AJMER VS. SMT. KUSUMDEVI VIJAYVARGIYA, KIS HANGARH 12 YSU&NSU O;OGKJ ESA IZFR YK[K :I;S 150 LS 300@& TSLK HKH EKSDK GKSRK GS] DEH'KU YSDJ DK DK;Z DJRK GWAA IZFREKG VKSLRU 5&6 DJKSM DH JKF'K DH YSU&NSU DK O;OGKJ DJRK GWA BL RJG LS VKSLR IZFREKG DEH'KU JKF'K ,D LS MS< YK[K RD IZKIR GKSRH GSA ESA VK;DJNKRK GWA ESJK PAN NO. EQ>S VHKH ;KN UGHAA ESA VIUH VK;DJ FOOJ.KH VK;DJ V F/KDKJH FD'KUX<+ DK;KZY; ESA TEK DJOKRK GWA IZ0UA0 10 VKI VIUS O;OLK; DH MODUS OPERANDI CRK,AA M0UA0 10 FD'KUX<+ ESA NS'K DS FOFHKUU 'KGJKSA LS O;KIKJH ,OA VU; O;FDR EKCZY [KJHNUS GSRQ VKRS GSA ;S O;FDR VSDL CPKUS DS FY, DE [KJHN D K FCY CUOKRS GS VKSJ UNDER BILLING DH TKS JKF'K BUGSA UXN EAS VNK DJUH IM+RH GS MLS VI US 'KGJ TKDJ ESJS ,OA ESJS IFJOKJ DS LNL;KSA DS [KKRS ESA TEK DJK NSRS GSA MLDS CKN ESA ;K ESJS IFJOKJ DK LNL; OG UDN JKF'K CSAD LS FUDKYDJ ML O;KIKJH DKS NS NSRS GSA FTL O;KI KJH LS EKY [KJHNK X;K FKKA BL JKF'K DKS FUDKY DJ NSUS ESA GE VIUK DEH'KU YSRS GSA TKS 1 50 LS 300 :I;S DS DJHC GKSRK GS BLESA LS DQN ISLK CSAD DK [KPKZ HKH YX TKRK GSA IZ0UA0 14 ESA VKIDKS ANNEXURE A-2 FTLESA 1 LS 16 RD IST FY[KS X;S GS VKSJ ;G FNUKAD 20-10-2010 LS 04-01-2011 RD BUNZKT FY[KS GS D`I;K BUGSA NS[KDJ CRK,A FD BUESA NTZ BUNZKT D;K GSA M0UA0 14 ESAUS ANNEXURE A-2 NS[K FY;K GS ;G ESJH LO;A DH HANDWRITING ESA GS BLESA TKS BUNZKT GS OG FNUKAD 21-10-2010 LS 04-01-2 011 RD DS GSA ESA VIUS ,OA VIUS IFJOKJ DS CSAD [KKRKSA }KJK FD'KUX<+ DS FOFHKUU EKCZY O;OL KF;;KSA DS UNACCOUNTED MONEY DKS FOFHKUU 'KGJKSA LS EAXOKRK GWA VKSJ OG ISLK FUDKYDJ CONCERN O;KIKJH DKS NS NSRK GWAA ANNEXURE A-2 ESA TKS JKF'K;KA ,OA UKE NTZ GS OG MUGHA O;KIKFJ;KS A DK UKE ,OA JKF'K NTZ GS FTUDK :I;K ESJS }KJK FOFHKUU 'KGJKSA LS EAXOK;K X; K VKSJ UDN FUDKYDJ MUDKS YKSVK;K X;KA BLESA EQ[;R% OGH UKE GS TKS ESA IGYS IZ'U DS M RRJ ESA CRK PQDK GKSA] TSLS FD JK.KK CKBZ LVKSUSDL IZK0FY0] RSTK EKCZY] JKEWJKE TH PKS/KJH] L AT; TH] IKSDJUK] EGSUNZ PKAMD] LQJTHR EKCZY] IATKC EKCZY] JKDS'K UKSFV;KJ] LQJFTR FLAG TH LJNKJ] LHRKJKE NIIJOKY] EAWNMK TH DAOJ LKGC] /KFEZBK EKCZY BR;KFN GSA BU O;KIKFJ;KSA DK DKE EQ[;R% ESA DJRK GWA VKSJ BUDK UNACCOUNTED MONEY TKS UNACCOUNTED SALES LS VKRK GS OG ESJS ,OA ESJS IFJOKJ DS LNL;KSA DS BANK [KKRKSA ESA FOFHKUU 'KGJKSA ESA TEK GKSRK GS GE ML JKF'K DKS VIUS [KKRK SA LS FUDKYDJ PQDK NSRS GS ,OA VIUK DEH'KU 100&150 TSLK GKSRK GS YS YSRS GSA ITA NO. 943/JP/15 ACIT,CC, AJMER VS. SMT. KUSUMDEVI VIJAYVARGIYA, KIS HANGARH 13 IZ0UA0 23 VKIUS O VKIDS IFJOKJ DS LNL;KSA US VE`R EKCZY] V{KR EKCZY] EERK EKCZY] VE`RK VSMLZ] :IY EKCZY] :IY LVKSUSDL] EERK VSMLZ] :EKUH EKCZY] UE`RK VSMLZ] UE`RK LVKSUSDL] VUQT EKCZYL] VUQT VSMLZ] :EKUH LVKSUSDL BR;KFN DS UKE LS QESZ CUK J[KH GS D`I;K CRK,A FD BU CONCERN ESA D;K O;KIKJ GKSRK GS \ M0UA0 23 ESJS ,OA ESJS IFJOKJ DS LNL;KSA DS UKE L S DKSBZ O;KIKJ MIJKSDR QEKSZ ESA UGHA GKSRK GSA U DKSBZ MARBLE TRADING GKSRH GSA DSOY BANK [KKRS [KKSYUS DS FY, ESA CONCERN CUKBZ GQBZ GSA THUS FROM THE ABOVE IT WILL BE SEEN THAT THE ASSESS EE NOT ONLY REPEATEDLY STATED THAT IT WAS EARNING ONLY COMMISSION INCOME B UT ALSO EXPLAINED THE MODUS OPERANDI OF THE COMMISSION RECEIPTS. IT EVEN STATED THE NAMES OF PARTIES FROM WHOM THE COMMISSION HAVE BEEN RECEIVED . IN RESPONSE TO QUESTION NO. 23, THE ASSESSEE HAS CLEARLY DENIED AN Y KIND OF TRADING IN MARBLES. THE STATEMENT ALONG WITH OTHER CORROBORATIVE EVIDEN CES IS A VITAL PROOF THAT NO TRADING IN MARBLE TOOK PLACE. (1.1.2) THE LD AR FURTHER SUBMITTED THAT THERE WAS NO IOTA OF EVIDENCE OF TRADING IN MARBLE DURING THE COURSE OF SURVEY. IT I S PERTINENT TO NOTE THAT DURING THE ENTIRE SURVEY PROCEEDINGS, NO PAPER/ DOC UMENTS/ NOTE BOOK ETC. WERE FOUND WITH REGARD TO ANY SORT OF TRADING IN MA RBLE. THOUGH SEVERAL QUESTIONS WERE ASKED WITH REGARD TO THE MATERIAL FO UND DURING THE COURSE OF SURVEY, QUESTION NO. 19 IS VERY MUCH RELEVANT, IN W HICH THE ASSESSEE GIVEN EXPLANATION ON THE LOOSE SLIPS ETC. SO FOUND: IZ0UA0 19 ESA LOSZ DH DK;ZOKGH DS NKSJKU VKIDS OFFICE LS RS;KJ FD;S X;S LOOSE PAPER BUNDLE ANNEXURE A-8, A-9, A-10, A-11, A-12, A- 13 ,OA A-14 FN[KK JGK GAWA D`I;K BUGSA NS[KDJ CRK,A FD BLESA TKS HANDWRITING GS OG FDLDH GS VKSJ BUESA NTZ BUNZKT DH IZD`FR D;K GS\ M0UA0 19 ESAUS ANNEXURE A-8 LS A-14 RD NS[K FY;S GSA ;G LOOSE PAPER DS C.MY ESJS OFFICE LS FEYS GS ;G HANDWRITING ESJH ,OA ESJH IRUH NKSUKSA DH GSA BUESA NTZ BUNZKT MUGHA IKFVZ;KSA DS GS FTUDK :I;K GE FOFHKUU LFKKUKSA LS VIUS CSAD [KKRKSA DS }KJK EAXKRS GS ,OA ;GKA UDN FUDKYDJ BU IKFVZ;KSA DKS YKSVK NSRS GS A ANNEXURE A-11 ESA TKS BUNZKT GS OG 02-04-2010 LS 23-04-2010 RD DS GS] ANNEXURE A-11 DS BUNZKT FTU MK;FJ;KA DK IGYS ITA NO. 943/JP/15 ACIT,CC, AJMER VS. SMT. KUSUMDEVI VIJAYVARGIYA, KIS HANGARH 14 MYYS[K FD;K X;K GS MUESA UGHA GS CKDH ANNEXURE A-8, A-9, A-10, A-11, A-12 ANNEXURE A-2, 3, 4 DH MK;FJ;KA EAS VK PQDS GSA ESA IQU% LI'V DJ NSUK P KGRK GWA FD FD'KUX<+ DS DQN IKFVZ;KSA TSLS IATKC EKCZY] JKDS'K UKSFV;KJ] 'KKFUR EKCZY] DEY QYKSM] JK.KK CKBZ LVKSUSDL] RSTK EKCZY] XAXOKY LVKSUSDL] LHRKJKE NIIJOKY] 'KFDR EKCZY] UOHU MK;E.M BR;KFN DK :I;K ESA ,OA ESJS IFJOKJ DS LNL;KSA DS CS AD [KKRKSA }KJK FOFHKUU 'KGJKSA ESA TKS UDN TEK GKSRK GS FD'KUX<+ ESA BU IKFVZ;KSA DK :I;K GEKJ S [KKRKSA LS FUDKYDJ YKSVK FN;K TKRK GSA BL JKF'K IJ GE VIUK DEH'KU YS YSRS GSA UDN JKF'K CONCERNED IKVHZ DKS YKSVK NH TKRH GSA ;G AMOUNT BU IKFVZ;KSA DH UNACCOUNTED SALES LS LACAF/KR GKSRH GS TKS GEKJS CSAD [KKRKS }KJK BU IKFVZ;KSA DS XZKGD GEKJS [KKRS ESA T EK DJKRS GS VKSJ GE ;G JKF'K FUDKY DJ UDN BUDKS YKSVK NSRS GSA BL O'KZ ESA GEKJS IFJOKJ D S FOFHKUU CSADKS [KKRKSA }KJK BU IKFVZ;KSA DKS YXHKX 80 DJKSM+ LS T;KNK DH JKF'K YKSVKBZ TK PQDH G S VKSJ MLDK DEH'KU GEUS IZKIR DJ FY;K GSA FROM THE STATEMENT, IT WOULD BE SEEN THAT THE ASSES SEE HAS DULY EXPLAINED EACH AND EVERY LOOSE PAPER AND ENTRIES IN THE NOTEB OOK FOUND DURING THE COURSE OF SURVEY. THE EXPLANATION AND ENTRIES CLEAR LY INDICATED THAT THE ASSESSEE WAS ONLY ACTING AS FACILITY PROVIDER AND I T ONLY RECEIVED COMMISSION FROM THE PARTIES. NOT A SINGLE RUPEE WAS DEPOSITED OR WITHDRAWN FROM THE BANK ACCOUNT ON ITS OWN ACCOUNT AND RATHER IT BELON GS TO THE PARTIES WHO PAID COMMISSION TO THE ASSESSEE. IT IS ALSO NOTABLE THAT THOUGH VARIOUS DOCUMENTS WERE RECOVERED FROM THE ASSESSEE BUT NOT IN A SINGL E PAPER OR SLIP ANY SORT OF QUANTITATIVE OR OTHER DETAILS WERE FOUND SO AS TO S UGGEST THAT THE ASSESSEE WAS INVOLVED IN TRADING IN MARBLE. (1.1.3) THE LD AR FURTHER SUBMITTED THAT REASONS RECORDED I TSELF DO NOT SUGGEST ANY TRADING IN MARBLE BY THE ASSESSEE. THE REASONS RECORDED IN THE MATTER HAS BEEN REPRODUCED AT PAGE 8 OF LD. CIT(A) ORDER AND FROM THE SAME IT WILL BE GATHERED THAT THE DEPARTMENT COULD NOT FIND ANY EVIDENCE OR MATERIAL WITH REGARD TO TRADING IN MARBLE BY THE ASSESSEE AN D THEREFORE, VERY VAGUE REASONS WERE TAKEN BY THE LD. AO FOR REOPENING OF A SSESSMENTS . THE REASONS ESSENTIALLY STATES THAT EXCESS INCOME TAX COULD BE RECOVERED FROM THE ASSESSEE AND IN THE ENTIRE REASONS THERE IS NO MENTION OF AN Y SORT OF TRADING IN MARBLE BY THE ASSESSEE. IT IS PERTINENT TO NOTE THAT THE L D. AO ITSELF HAS STATED IN THE REMAND PROCEEDINGS THAT INITIALLY THE REASONS WERE RECORDED FOR ESCAPEMENT ITA NO. 943/JP/15 ACIT,CC, AJMER VS. SMT. KUSUMDEVI VIJAYVARGIYA, KIS HANGARH 15 OF COMMISSION INCOME AND THE RELEVANT EXTRACT OF TH E SAME IS APPEARING BELOW: 6. REASONS FOR REOPENING ASSESSMENTS WERE RECORDED FOR ESCAPEMENT OF INCOME ON ACCOUNT OF COMMISSION ON AMOUNT OF UNA CCOUNTED SALE CONSIDERATION OF BENEFICIARIES RECEIVED IN THE BANK ACCOUNTS. THEREFORE, EVEN THE REOPENING OF ASSESSMENT WAS MAD E FOR TAXING COMMISSION INCOME AND THEREFORE CHANGE OF STAND BY THE LD. AO WAS WITHOUT ANY BASIS AND EVIDENCE ON RECORD AND AS SUCH THE CONSEQUENT ASSES SMENT BY APPLYING G.P. RATE WAS ALSO BAD IN LAW. (1.1.4) THE LD AR FURTHER SUBMITTED THAT THE EXPLANATION OF THE ASSESSEE WAS NOT FOUND FALSE. THE AO COULD NOT REFER A SINGLE EV IDENCE OF TRADING IN MARBLE. IT IS FURTHER NOTABLE THAT IN THE ENTIRE ASSESSMENT ORDER THERE IS EVEN NO WHISPER ABOUT THE STATEMENT BEING INCORRECT OR FALS E AND RATHER THE STATEMENT IS SUPPORTED WITH CORROBORATIVE AND CIRCUMSTANTIAL EVIDENCES. THUS THE STATEMENT GIVEN BY THE ASSESSEE HAS TO BE ACCEPTED AS THERE IS NO MATERIAL WITH THE DEPARTMENT TO DISPROVE THE STATEMENT OF TH E ASSESSEE. THERE IS NOT A SINGLE SLIP OR NOTING WITH THE DEPARTMENT SO AS TO SUGGEST THAT THE ASSESSEE WAS DOING ANY TRADING IN MARBLE. (1.1.5) THE LD AR FURTHER SUBMITTED THAT THERE WAS NO INCR IMINATING MATERIAL FOUND BY AO SUGGESTING TRADING IN MARBLE. WE MAY ALSO SUBMIT THAT HAD THE ASSESSEE INVOLVED IN TRADING, AT LEAST SOME RECORD LIKE QUANTITATIVE DETAILS, WEIGHING DETAILS, TRANSPORTATION DETAILS, QUALITY D ETAILS OF MARBLE TRADED, EXPENSES WHICH MIGHT HAVE BEEN INCURRED WITH REGARD TO TRADING LIKE SALARY, STAFF WELFARE, CONVEYANCE ETC. WOULD HAVE FOUND. BU T THERE IS ABSOLUTELY NOTHING ON RECORD AND THE DEPARTMENT, NEITHER IN TH E COURSE OF SURVEY PROCEEDINGS NOR IN ENTIRE ASSESSMENT PROCEEDINGS WH ICH RAN FOR MORE THAN TWO YEARS, COULD FIND ANY EVIDENCE SUPPORTING ITS A LLEGATION OBVIOUSLY BECAUSE NO TRADING WAS DONE BY THE ASSESSEE. (1.1.6) THE LD AR FURTHER SUBMITTED THAT THERE WAS NO INFR ASTRUCTURE FOR TRADING IN MARBLE . IT IS SUBMITTED THAT THERE WAS NO BUSINESS PREMISES OR GODOWN WITH THE ASSESSEE SO HAS TO CARRY OUT ANY SORT OF MARBLE TRADING. EVEN IN THE REMAND PROCEEDINGS THE LD AO ITSELF HAS STATED THE FOLLOWI NG . ITA NO. 943/JP/15 ACIT,CC, AJMER VS. SMT. KUSUMDEVI VIJAYVARGIYA, KIS HANGARH 16 SMT. KUSUM DEVI VIJAYVARGIYA A) ASSESSEE IS NOT REGISTERED WITH SALE TAX DEPARTMENT AND NOT FILED SALE TAX RETURN. B) ASSESSEE IS NOT REGISTERED WITH CENTRAL EXCISE AND NOT FILED EXCISE RETURN. C) ASSESSEE HAS NOT SHOWN DEBTORS AND NO CREDITORS. D) ASSESSEE HAS NO PURCHASES OR SALES ACCOUNT. E) ASSESSEE HAS NO DEPRECIABLE ASSETS. F) NO BOOKS OF ACCOUNTS MAINTAINED. G) ASSESSEE HAS NO SSI REGISTRATION NUMBER. H) ASSESSEE HAS NO POWER CONNECTION NOW THERE ARE REALLY SOME SUBSTANTIAL FACTS AND RAT HER STRONG CORROBORATIVE EVIDENCES WHICH SUGGEST THAT TRADING IN MARBLE COUL D NOT HAVE BEEN DONE BY THE ASSESSEE. (1.1.7) THE LD AR FURTHER SUBMITTED THAT THE REPLY OF THE LD. AO IN REMAND REPORT IS WITHOUT ANY BASIS. IN POINT NO. 8 OF THE REMAND REPORT, THE LD. AO SUGGESTED THAT IF SOMEONE HAS INTENTION TO MAKE UNA CCOUNTED TRANSACTIONS THEN IT NEED NOT TO HAVE THE ABOVE INFRASTRUCTURE. WE MAY SUBMIT THAT THIS OBSERVATION OF THE LD. AO IS GROSSLY INCORRECT AS T HE DEPARTMENT INTENDED TO TAX THE TURNOVER NOT IN LACS BUT IN SEVERAL CRORES. FOR TRADING IN MARBLE, AT LEAST ONE WOULD NEED A PLACE WHERE THE BUYER COULD CHOOSE THE MARBLE OF THEIR CHOICE, AT LEAST IT WOULD NEED BARE MINIMUM INFRASTRUCTURE LIKE TABLE, CHAIR ETC., AT LEAST IT WOULD NEED SOME ACCOUNT BOOKS TO ENTER THE QUALITY, QUANTITY OR WEIGH OF MARBLE ETC., AT LEAST IT WOULD NEED SOME EMPLOYE ES, AT LEAST IT WOULD NEED SOME POWER CONNECTION ETC. THESE ALL WERE MISSING I N THE PRESENT CASE SO BY NO STRETCH OF IMAGINATION IT COULD BE ASSUMED THAT THE ASSESSEE WAS IN THE BUSINESS OF TRADING IN MARBLE AND THEREFORE, THE LD . CIT(A) WAS RIGHT IN ASSESSING ONLY THE COMMISSION INCOME. (1.1.8) THE DEPARTMENT ITSELF ASSESSED COMMISSION INCOME IN THE AY 2009-10, IN CASE OF PRAKASH CHAND VIJAYVARGIYA, @ RS.300/- P ER LAKH ON SUCH BANK TRANSACTIONS AND WE ARE ENCLOSING HEREWITH THE COPY OF ASSESSMENT WHICH IS PLACED AT PB 53-55. FROM THE ASSESSMENT ORDER IT WI LL BE SEEN THAT IN AY 2009- 10 THERE WERE NET TRANSACTIONS TO THE TUNE OF RS.19 1949195/- AND ACCORDINGLY COMMISSION WAS ASSESSED AT RS.575847/- AND OUT OF THE SAME BANK CHARGES OF ITA NO. 943/JP/15 ACIT,CC, AJMER VS. SMT. KUSUMDEVI VIJAYVARGIYA, KIS HANGARH 17 RS.70315/- WAS ALLOWED AND THUS NET ADDITION OF RS. 505532/- WAS MADE BY THE LD. AO. (1.1.9) REASSESSMENT OF AY 2009-10 DENIED BY PRINCIPAL COMM ISSIONER OF INCOME TAX (CENTRAL), JAIPUR: IT IS WORTHWHILE TO NOTE THAT THE LD.AO PROPOSED TO REOPEN THE ABOVE ASSESSMENT FRAMED FOR AY 2009-1 0 IN WHICH ONLY THE COMMISSION INCOME WAS TAXED AND FOR THE SAME IT SOU GHT PERMISSION FROM PR.CIT, JAIPUR ON 09-03-2015 HOWEVER THE SAME WAS D ENIED BY THE LD PR.CIT JAIPUR VIDE ITS LETTER DATED 12-03-2015. THIS FACT IS DULY MENTIONED IN THE COMMUNICATION MADE BY THE LD.AO TO LD.CIT (A) ON DT .07-08-2015 WHICH IS PLACED AT PB 1-2. AT PARA 3 ,IT IS STATED BY THE LD . AO THAT THE PERMISSION TO REOPEN THE CASE FOR AY 2009-10 HAS BEEN DENIED. THU S IT IS CLEAR THAT EVEN THE HIGHER AUTHORITY IN THE DEPARTMENT HAD A VIEW THAT COMMISSION INCOME WAS RIGHTLY ASSESSED BY THE THEN LD AO AND THERE WAS AB SOLUTELY NO NEED TO REOPEN THE CASE TO ASSESS THE INCOME WHILE APPLYING GP RAT E. THEREFORE THE LD CIT (A) WAS FULLY JUSTIFIED IN ASSESSING THE COMMISSION INC OME INSTEAD OF APPLYING GP RATE. (1.2). THE LD AO ITSELF HAVE AGREED OF PREVALENT PRACTICES OF FACILITY PROVIDER: IT IS IMPORTANT TO NOTE THAT THE LD AO ITSELF HAS M ENTIONED AT MORE THAN ONE PLACE IN THE ASSESSMENT ORDER OF SUCH ACTIVITIES OF PROVIDING BANK ACCOUNT FACILITIES TO DEPOSIT AND WITHDRAW THE CASH BY VARI OUS PERSONS LIKE ASSESSEE. AT PAGE NO. 4 PARA 2 OF THE ASSESSMENT ORDER THE LD AO ITSELF HAS CONCEDED THE FACT OF EARNING COMMISSION WHILE ACTING AS FACILITY PROVIDER. EVEN IN PARA 3 OF THE SAME PAGE THE LD. AO ACCEPTED THAT THE ASSESSEE WAS PRIMA FACIE ENGAGED IN PROVIDING FACILITY TO USE HIS BANK ACCOUNT FOR C ASH TRANSACTIONS. WE ARE REPRODUCING HEREWITH THE RELEVANT EXTRACT OF THE SA ME: IT IS RELEVANT TO MENTION HERE THAT THE PREVAILIN G MARKET PRACTICE IN THE BUSINESS OF MARBLE TRADING IS THAT THERE IS LAR GE SCALE UNDER INVOICING AND UNDER BILLING OF SALES. GENERALLY, FO R OBTAINING SALE CONSIDERATION OF ACTUAL TRANSACTION FROM THE BUYERS LOCATED OUTSIDE THE HOME TOWN OR THROUGH OUT INDIA, THE TRADERS OBTAIN PART AMOUNT THROUGH CHEQUES AND FOR BALANCE AMOUNT, THEY HAVE B EEN USING THERE CONFIDENTS (FACILITY PROVIDERS). THE CONFIDENTS ARE HAVING MULTIPLE BANK ACCOUNTS EITHER IN THEIR NAME OR IN THE NAMES OF TH EIR FAMILY MEMBERS OR CONCERNS/FIRMS. THEIR BANK ACCOUNT NUMBERS ARE I NTIMATED TO THE ITA NO. 943/JP/15 ACIT,CC, AJMER VS. SMT. KUSUMDEVI VIJAYVARGIYA, KIS HANGARH 18 BUYERS WHO DEPOSIT THE BALANCE AMOUNT WHICH IS ACTU ALLY ON MONEY,IN THE BANK ACCOUNT OF THE CONFIDENTS. THE BUYERS DEPO SIT AMOUNT BELOW RS.50000/- TO AVOID MENTIONING PAN ON PAY-IN-SLIPS. AFTER RECEIPT OF AMOUNT IN BANK ACCOUNT, THE CONFIDENTS I.E. FACILIT Y PROVIDERS WITHDRAW THE AMOUNT OF ON-MONEY ANED HANDOVER TO THE BENEFIC IARIES I.E.SELLERS.THE FACILITY PROVIDERS CLAIM THAT THEY RECEIVE RS.200/- TO RS.300/- PER RS.100000/- RECEIVED IN THEIR BANK ACC OUNT BY WAY OF COMMISSION. AS HAS BEEN ADMITTED BY THE ASSESSEE DURING THE CO URSE OF SURVEY U/S 133A, THE ASSESSEE IS ALSO PRIMA FACIE FOUND ENGAGE IN PROVIDING FACILITY OF BRINGING CASH PAYMENT OF THE MARBLE TRA DERS BY ALLOWING THEM TO USE HIS BANK ACCOUNTS. ALSO THIS IS IN CONF ORMITY WITH THE PREVAILING MARKET PRACTICE IN THIS BUSINESS IN THIS REGION. THUS THE OBSERVATION OF THE AO MAKES IT ABUNDANTLY CLEAR THAT THE ALLEGED BANK TRANSACTIONS WERE RELATED TO BENEFICIARIES AND THE ASSESSEE WAS NOT INVOLVED IN TRADING OF MARBLES. (1.2.1) CHANGE OF STAND BY THE AO AT THE FAG END OF ASSESSM ENT WITHOUT ANY CHANGE IN FACTS & CIRCUMSTANCES : AS SUBMITTED ABOVE THAT THE LD. AO AGREED WITH THE CONTENTIONS OF THE ASSESSEE AND IT PROCEED ED FOR THE ASSESSMENT ON THAT BASIS ITSELF. HOWEVER AT THE FAG END OF LIMITA TION IT CHANGED THE MIND AND ISSUED SHOW CAUSE NOTICE FOR APPLYING G.P. RATE ON THE TURNOVER OF TRANSACTIONS AT THE VERY FAG END OF LIMITATION I.E. ON DT.3-3-20 14 (SEE AO PAGE 8 POINT NO.6). THIS CHANGE OF MIND WAS WITHOUT ANY BASIS OR CHANGE IN FACTS AND CIRCUMSTANCES. THE ONLY REASON GIVEN BY THE LD. AO WAS THAT THE ASSESSEE COULD NOT PROVIDE THE NAMES AND ADDRESSES OF ALL THE BENE FICIARIES WITH PARTY WISE AMOUNT AND ALSO FAILED TO PRODUCE THEM (THIS IS EXP LAINED IN LATER PARAS). IN FACT, SIMILAR SITUATION WAS THERE IN THE ENTIRE ASS ESSMENT PROCEEDINGS AND THEREFORE, THE CHANGE OF STAND WAS WITHOUT ANY LOGI CAL BASIS OR INCREMENTAL EVIDENCE ON RECORD. THEREFORE, THE LD. AO WAS TOTAL LY INCORRECT AND UNJUSTIFIED IN ITS APPROACH AND AS SUCH THE CONCLUSION REACHED BY THE LD. AO WAS WITHOUT ANY VALID BASIS. (1.2.2). NO WAYS AND MEANS WITH THE ASSESSEE TO PRODUCE THE BENEFICIARIES : THE LD AO DENIED THE SUBMISSION OF THE ASSESSEE ONL Y ON THE GROUND THAT IT ITA NO. 943/JP/15 ACIT,CC, AJMER VS. SMT. KUSUMDEVI VIJAYVARGIYA, KIS HANGARH 19 COULD NOT PRODUCE THE BENEFICIARIES OR GIVE CONFIRM ATION FROM THEM. IN THIS REGARD WE MAY SUBMIT THAT WHAT THE LD AO WAS EXPECT ING FROM THE ASSESSEE WAS BEYOND THE POSSIBILITY OF FULFILMENT. THE MODUS OPERENDI ITSELF SUGGEST THAT THE ASSESSEE HAS NO CONTROL OVER THE BENEFICIA RY AND THE ASSESSEE MERELY WAS ACTING AS FACILITATOR . AFTER HANDING OVER THE AMOUNT ALMOST SAME DAY OF DEPOSIT THERE REMAINED NO BALANCE WITH THE ASSESSEE AND THEREFORE IT COULD NOT HAVE ANY CONTROL ON SUCH BENEFICIARIES. EVEN FU RTHER THERE WAS NO OTHER SORT OF BUSINESS RELATIONSHIP WHICH COULD HAVE MADE ANY CONFIRMATION FROM SUCH PARTIES POSSIBLE. THEREFORE IT IS VERY MUCH UN REASONABLE ON THE PART OF THE LD AO TO HAVE EXPECTED FROM THE ASSESSEE WHICH WAS NOT POSSIBLE. STILL THE ASSESSEE PROVIDED THE NAMES AND ADDRESSES OF THE BE NEFICIARIES AS WOULD APPEARING IN LATER PART OF THE SUBMISSION. THE LD. AO ALSO MENTIONS THE SAME AT PAGE 4 POINT N O. 4 THAT NO BOOKS WERE MAINTAINED BY THE ASSESSEE AND EVEN THE LD. AO INIT IATED PENALTY PROCEEDINGS U/S 271A FOR NON MAINTENANCE OF BOOKS OF ACCOUNTS. THUS WHERE THE LD. AO ITSELF HAS AGREED THAT NO BOOKS OF ACCOUNTS WERE MA INTAINED THEN EXPECTING THE ASSESSEE TO PRODUCE THE COMPLETE PARTY WISE DET AILS WAS LIKE EXPECTING SOMETHING NOT POSSIBLE. (1.2.3 ) NAMES AND ADDRESSES OF THE BENEFICIARIES PROVIDED BY THE ASSESSEE TO THE EXTENT AVAILABLE : THOUGH NO BOOKS OF ACCOUNTS WERE MAINTAINED BY THE ASSESSEE, HOWEVER IT HAS DULY STATED THE VARIOUS NA MES & ADDRESSES OF BENEFICIARIES FROM WHOM IT HAS RECEIVED COMMISSION. SUCH NAMES AND ADDRESSES ARE APPEARING AT Q. NO.11, 14, 15, 16 & 1 9. THEREFORE REJECTING THE CONTENTION OF THE ASSESSEE MERELY ON THE GROUND THA T COMPLETE NAMES AND ADDRESSES OF THE BENEFICIARIES WERE NOT PROVIDED BY THE ASSESSEE WAS UNCALLED FOR AND THE LD AO SHOULD HAVE CONSIDERED THE TOTALI TY OF FACTS AND CIRCUMSTANCES. (1.2.4) ASSESSEE FULLY CO-OPERATED IN ASSESSMENT PROCEEDING S : WE MAY SUBMIT THAT THE ASSESSEE HAS SUBMITTED THE COMPLETE DETAIL S TO THE EXTENT IT WERE AVAILABLE WITH IT AND ALSO ATTENDED THE VARIOUS HEA RINGS AND THIS FACT IS DULY APPEARING AT PAGE 3 POINT NO.4 OF THE ASSESSMENT ORDER. THUS IT WAS NOT A CASE WHERE THE ASSESSEE WAS TRYING FROM ESCAPING THE ASS ESSMENT PROCESS OR TAXING OF AMOUNT IN PROPER HANDS THOUGH IT MAY HAVE ITS OW N LIMITATION AS HAS BEEN DISCUSSED ELSEWHERE IN THE SUBMISSION. ITA NO. 943/JP/15 ACIT,CC, AJMER VS. SMT. KUSUMDEVI VIJAYVARGIYA, KIS HANGARH 20 (1.2.5) DEPARTMENT INITIATED ACTION AGAINST THE BENEFICIARI ES : IT IS ALSO NOTABLE THAT THE DEPARTMENT HAS REOPENED CASES OF VARIOUS B ENEFICIARIES ON THE BASIS OF INFORMATION FROM THE ASSESSEE AND OTHER PERSONS ON WHOM SURVEY PROCEEDINGS WERE UNDERTAKEN. WE ARE ENCLOSING HEREW ITH THE COPIES OF COMMUNICATION MADE BY ITO WARD 1 & 2 ITO WARD 2 OF KISHANGARH TO THE LD. DCIT, CENTRAL CIRCLE, AJMER IN WHICH THE SUMMARY OF SUCH ACTION IS GIVEN. IT WOULD BE SEEN FROM THE COMMUNICATION PLACED AT PB 15-20 THAT IN VARIOUS CASES EVEN THE TAXES HAVE BEEN RECOVERED FROM VARIO US BENEFICIARIES. THUS THIS VERY WELL PROVES THE STAND OF THE ASSESSEE THAT IT WAS ONLY EARNING COMMISSION AND SALE AND PURCHASES WERE RELATED TO THE BENEFICI ARIES (1.2.6) CASE LAWS: IN SANJAY KUMAR GARG VS. ACIT 144 TTJ 77 , 134 ITD 82 (DEL) IT WAS HELD THAT ONLY THE COMMISSION INCOME COULD BE C HARGED ON THE TURNOVER MADE IN THE BANK ACCOUNT AND THE ENTIRE BANK DEPOSI T COULD NOT BE CONSIDERED FOR MAKING OF ADDITIONS. THE FACT IN THE PRESENT CA SE IS ALSO SIMILAR TO A GREAT EXTENT. (1.2.7) COMMISSION RIGHTLY ASSESSED @RS.225/- PER LAC BY TH E LD. CIT(A): IN THE INSTANT CASE, SURVEY WAS CARRIED OUT AT VARIOUS UNR ELATED PARTIES AT THE SAME TIME. IT WOULD BE CLEAR FROM THE STATEMENT OF THE A SSESSEE THAT THE ASSESSEE WAS EARNING COMMISSION TO THE TUNE OF RS.150/- TO R S.300/- PER LAC. IT IS PERTINENT TO NOTE THAT SIMILAR STATEMENTS HAVE BEEN GIVEN BY SEVERAL OTHER PARTIES IN THE COURSE OF SURVEY. THE LD. CIT(A) HAS TAKEN THE COMMISSION AT THE HIGHER END OF SUCH RANGE I.E. @RS.300/-. THUS THE S AME WAS TAKEN ON THE BASIS OF PREVALENT PRACTICES AS WELL AS THE STATEMENT OF THE ASSESSEE. (1.2.8) EXPENSES @25% OUT OF COMMISSION RIGHTLY ALLOWED BY THE LD. CIT(A): IT IS ALSO SUBMITTED THAT THE ASSESSEE HAS ALSO TO INC UR CERTAIN EXPENSES LIKE CONVEYANCE, TELEPHONE, STATIONARY, LIGHT, BANK CHAR GES ETC. FOR FOLLOW UP, VERIFICATION, DOCUMENTATION OF DEPOSIT AND WITHDRAW AL ETC. THE LD. CIT(A) HAS RIGHTLY CONSIDERED ALL THIS AND ALLOWED @25% OF TH E COMMISSION RECEIVED. THIS FACT OF INCURRING OF EXPENSES HAS BEEN APPROVED IN OTHER JUDICIAL PRONOUNCEMENTS ALSO. PLEASE REFER MANOJ AGGARWAL VS . DCIT 117 TTJ 145, 113 ITD 377 (DEL) (SB) & SANJAY KUMAR GARG VS. ACIT 144 TTJ 77, 134 ITD 82 (DEL) WHEREIN SIMILAR ALLOWANCE FOR EXPENSES OUT OF COMMI SSION ON ACCOMMODATION ENTRIES HAVE BEEN UPHELD BY THE HONBLE ITAT. ITA NO. 943/JP/15 ACIT,CC, AJMER VS. SMT. KUSUMDEVI VIJAYVARGIYA, KIS HANGARH 21 CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS FULLY JUSTIFIED IN DIRECTING TO ASSESS ONLY THE COMMISSION INCOME INSTEAD OF APPLYING OF G.P. RATE AND WE HUMBLY PRAY TO SUSTAIN THE ORDER OF LD. CIT(A) WHILE REJECTING THE APPEAL OF THE DEPARTMENT. 2.3 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ISSUE UNDER CONSIDERATION RELATES T O CASH DEPOSITS AMOUNTING TO RS.11,37,60,458 MADE IN SIX BANK ACCOUNTS MAINTAINE D BY THE ASSESSEE. THE AO HAS HELD THESE RECEIPTS AS RECEIPTS FROM THE BUS INESS OF MARBLE TRADING AND THE LD CIT(A) HAS HELD THAT THESE RECEIPTS BELONG T O THE MARBLE TRADERS AND ASSESSEE WHO HAS FACILITATED THESE RECEIPTS SHOULD BE BROUGHT TO TAX IN TERMS OF HER COMMISSION INCOME. UNDISPUTEDLY, THESE BANK AC COUNTS ARE OPENED IN THE NAME OF THE ASSESSEE AND OPERATED BY THE ASSESSEE H ERSELF WITH THE ASSISTANCE OF HER HUSBAND. THE STAND OF THE ASSESSEE IS THAT SHE IS NOT CARRYING ON ANY BUSINESS IN THE NATURE OF MARBLE TRADING AS ALLEGED BY THE AO. SHE HAS FURTHER STATED THAT ALL THESE BANK ACCOUNTS WERE USED BY VA RIOUS MARBLE TRADERS OPERATING IN AND AROUND KISHANGARH TO BRING CASH A GAINST THEIR UNRECORDED SALES MADE TO VARIOUS PARTIES FROM ALL OVER INDIA. THE ASSESSEE FURTHER SUBMITTED THAT THE CASH DEPOSITED BY THE VARIOUS PA RTIES WAS SUBSEQUENTLY WITHDRAWN AND HANDED OVER TO THE MARBLE TRADERS TO WHOM THE SAID MONEY BELONG. THE ASSESSEE SUBMITTED THAT FOR THE ACTIVIT Y OF FACILITATING THE RECEIPT OF CASH IN HER BANK ACCOUNTS AND, SUBSEQUENT WITHDRAWA L AND HANDING OVER THE CASH TO THE MARBLE TRADERS, SHE USED TO GET THE COM MISSION FROM THE SAID MARBLE TRADERS. HERE IT IS RELEVANT TO NOTE THAT T HE ENTIRE TRANSACTIONS IN VARIOUS BANK ACCOUNTS IN TERMS OF MONITORING THE C ASH DEPOSITS AS WELL AS SUBSEQUENT WITHDRAWAL AND HANDING OVER THE CASH HA S BEEN CARRIED OUT BY THE ASSESSEE HERSELF WITH THE ASSISTANCE OF HER HUSBAN D TO WHOM SHE HAS AUTHORISED AND NOT BY THE MARBLE TRADERS. HERE IT I S ALSO RELEVANT TO NOTE THAT THE AO HAS ALSO STATED IN HIS ORDER ABOUT THE SAID MARKET PRACTICE IN THE BUSINESS OF MARBLE TRADING WHERE THERE IS LARGE SCA LE UNDER INVOICING AND UNDER BILLING OF SALES. THE LD. AO HAS STATED THAT GEN ERALLY, FOR OBTAINING SALE CONSIDERATION OF ACTUAL TRANSACTION FROM THE BUYERS LOCATED OUTSIDE THE HOMETOWN OR THROUGHOUT INDIA, THE TRADERS OBTAIN PA RT AMOUNT THROUGH CHEQUES AND FOR BALANCE AMOUNT, THEY HAVE BEEN US ING THEIR CONFIDANTS (FACILITY PROVIDERS). THE CONFIDENTS ARE HAVING M ULTIPLE BANK ACCOUNTS EITHER IN THEIR NAME OR IN THE NAMES OF THEIR FAMILY MEMBERS OR CONCERN/FORMS. THEIR ITA NO. 943/JP/15 ACIT,CC, AJMER VS. SMT. KUSUMDEVI VIJAYVARGIYA, KIS HANGARH 22 BANK ACCOUNT NUMBERS ARE INTIMATE D TO THE BUYERS WHO DEPOSIT THE BALANCE AMOUNT WHICH IS ACTUALLY ON -MONEY, IN THE BANK ACCOUNT OF THE CONFIDANTS. THE BUYERS DEPOSIT AMOU NT BELOW RS. 50,000/- TO AVOID MENTIONING PAN ON PAY-IN-SLIPS. AFTER RECEI PT OF AMOUNT IN BANK ACCOUNT, THE CONFIDANTS I.E, FACILITY PROVIDERS WIT HDRAW THE AMOUNT OF ON- MONEY AND HAND OVER TO THE BENEFICIARIES I.E. SELLE RS. THE AO HAS THEREFORE, GIVEN HIS PRIMA FACIE FINDING THAT THE ASSESSEE IS FOUND PRIMA FACIE ENGAGED IN PROVIDING FACILITY TO BRING CASH PAYMENTS OF THE M ARBLE TRADERS BY ALLOWING THEM TO USE HER BANK ACCOUNT WHICH IS IN CONFORMITY WITH THE PREVAILING MARKET PRACTICE IN THIS REGION. 2.4 THE SAID PRIMA FACIE FINDING BY THE AO IS ON TH E BASIS OF STATEMENT OF THE ASSESEEE AND HER HUSBAND WHICH HAVE BEEN RECORDED D URING THE COURSE OF SURVEY. WITH A VIEW TO ARRIVE AT A DEFINITIVE FIND ING AND TO CORROBORATE THE SAID STATEMENTS GIVEN BY THE ASSESSEE IN TERMS OF ACTING AS FACILITY PROVIDERS, THE AO HAS ASKED THE ASSESSEE SPECIFIC QUESTIONS DURING TH E COURSE OF ASSESSMENT PROCEEDINGS WHEREBY THE ASSESSEE WAS ASKED TO PROVI DE PARTY-WISE DETAILS OF DEPOSITS MADE IN ALL THE BANK ACCOUNTS AS WELL AS NAMES AND ADDRESSES OF ALL THE BENEFICIARIES/MARBLE TRADERS TO WHOM THE CASH W AS WITHDRAWN AND HANDED OVER BY THE ASSESSEE. 2.5 IN COMPLIANCE, THE ASSESSEE HAS STATED THAT THE DETAILS OF MARBLE TRADERS ALONGWITH ADDRESSES WERE FURNISHED TO THE INVESTIG ATION WING WHO HAS CARRIED OUT THE SURVEY, RECORDED HER AND HER HUSBANDS STAT EMENT AND ALSO OBTAINED VARIOUS EXERCISE BOOK, DIARIES AND LOOSE PAPERS. O N PERUSAL OF THE STATEMENT OF ASSESSEES HUSBAND WHICH WAS RECORDED DURING THE CO URSE OF SURVEY AND PLACED ON RECORD, WE FIND THAT IN RESPONSE TO VARIOUS QUE STIONS SUCH AS QUESTION NO. 11,14,15,16 & 19 WHICH ARE RAISED IN THE CONTEXT OF VARIOUS EXERCISE BOOK, DIARIES AND LOOSE PAPERS FOUND DURING THE COURSE OF SURVEY, THE ASSESSEES HUSBAND HAS STATED THAT ALL THESE DOCUMENTS CONTAIN ED DATA IN TERMS OF NAMES AND ADDRESSES OF VARIOUS PARTIES WHO HAVE DEPOSITED THE MONEY IN HER VARIOUS BANK ACCOUNTS AND ALSO DETAILS OF VARIOUS MARBLE TR ADERS/BENEFICIARIES TO WHOM THAT MONEY BELONGS. 2.6 HERE THE FUNDAMENTAL QUESTION THAT ARISES FOR C ONSIDERATION IS WHERE CASH HAS BEEN FOUND DEPOSITED IN THE BANK ACCOUNTS MAINTAINED BY THE ASSESSEE, THE ONUS TO PROVE THAT CASH BELONGS TO TH E ASSESSEE OR TO SOMEONE ITA NO. 943/JP/15 ACIT,CC, AJMER VS. SMT. KUSUMDEVI VIJAYVARGIYA, KIS HANGARH 23 ELSE LIES ON WHOM- ON THE ASSESSEE OR ON THE REVENU E. IN THIS REGARD, WE REFER TO THE DECISION OF HONBLE SUPREME COURT IN CASE OF CHUHARMAL VS CIT (1988) 172 ITR 0250 WHEREIN THE HONBLE SUPREME COURT HAS LAID DOWN TH E FOLLOWING PROPOSITION IN LAW: THE HIGH COURT IN ITS ORDER NOTED THAT THE RAIDING PARTY BY VIRTUE OF THE SEARCH ENTERED INTO THE BEDROOM OF THE ASSESSEE ON 12TH MA Y, 1973, AND SEIZED THE WATCHES. A PANCHNAMA WAS PREPARED. THE DEPARTMENT F OUND THAT THE ASSESSEE WAS THE OWNER. SEC. 110 OF THE EVIDENCE ACT IS MATE RIAL IN THIS RESPECT AND THE HIGH COURT RELIED ON THE SAME WHICH STIPULATES THAT WHEN THE QUESTION IS WHETHER ANY PERSON IS OWNER OF ANY-THING OF WHICH H E IS SHOWN TO BE IN POSSESSION, THE ONUS OF PROVING THAT HE IS NOT THE OWNER IS ON THE PERSON WHO AFFIRMS THAT HE IS NOT THE OWNER. IN OTHER WORDS, I T FOLLOWS FROM THE WELL-SETTLED PRINCIPLE OF LAW THAT NORMALLY, UNLESS THE CONTRARY IS ESTABLISHED, TITLE ALWAYS FOLLOWS POSSESSION. IN THE FACTS OF THIS CASE, INDUBITABLY, POSSESSION OF THE WRIST- WATCHES WAS FOUND WITH THE PETITIONER. THE PETITION ER DID NOT ADDUCE ANY EVIDENCE, FAR LESS DISCHARGE THE ONUS OF PROVING TH AT THE WRIST-WATCHES IN QUESTION DID NOT BELONG TO THE PETITIONER. HENCE, T HE HIGH COURT HELD, AND IN OUR OPINION RIGHTLY, THAT THE VALUE OF THE WRIST-WA TCHES IS THE INCOME OF THE ASSESSEE. IN THIS CONNECTION, REFERENCE MAY BE MADE TO THE VIEWS EXPRESSED BY JUSTICE TULZAPURKAR, AS HIS LORDSHIP THEN WAS, OF T HE BOMBAY HIGH COURT IN THE CASE OF J.S. PARKAR VS. V.B. PALEKAR (1974) 94 ITR 616 (BOM) : TC42R.1775, WHERE, ON A DIFFERENCE OF OPINION BETWEEN JUSTICE D ESHPANDE AND JUSTICE MUKHI, JUSTICE TULZAPURKAR AGREED WITH JUSTICE DESH PANDE AND HELD ON THE QUESTION WHETHER THE EVIDENCE ESTABLISHED THAT THE PETITIONER WAS THE OWNER OF THE GOLD SEIZED, THOUGH THERE WAS NO DIRECT EVIDENC E PLACED BEFORE THE TAXING AUTHORITIES TO PROVE THAT THE PETITIONER HAD ACTUAL LY INVESTED MONEYS FOR PURCHASING THE GOLD IN QUESTION, THE INFERENCE OF T HE OWNERSHIP OF THE GOLD IN THE PETITIONER IN THAT CASE RESTED UPON CIRCUMSTANT IAL EVIDENCE. THERE ALSO GOLD WAS SEIZED FROM A MOTOR LAUNCH BELONGING TO THE PET ITIONER IN THAT CASE. THERE, A CONTENTION WAS RAISED THAT THE PROVISION IN S. 11 0 OF THE EVIDENCE ACT WHERE A PERSON WAS FOUND IN POSSESSION OF ANYTHING, THE ONU S OF PROVING THAT HE WAS NOT THE OWNER WAS ON THE PERSON WHO AFFIRMED THAT H E WAS NOT THE OWNER, WAS INCORRECT AND INAPPLICABLE TO TAXATION PROCEEDINGS. THIS CONTENTION WAS REJECTED. THE HIGH COURT OF BOMBAY HELD THAT WHAT W AS MEANT BY SAYING THAT THE EVIDENCE ACT DID NOT APPLY TO THE PROCEEDINGS U NDER THE ACT WAS THAT THE ITA NO. 943/JP/15 ACIT,CC, AJMER VS. SMT. KUSUMDEVI VIJAYVARGIYA, KIS HANGARH 24 RIGOUR OF THE RULES OF EVIDENCE CONTAINED IN THE EV IDENCE ACT WAS NOT APPLICABLE BUT THAT DID NOT MEAN THAT WHEN THE TAXING AUTHORIT IES WERE DESIROUS OF INVOKING THE PRINCIPLES OF THE ACT IN PROCEEDINGS B EFORE THEM, THEY WERE PREVENTED FROM DOING SO. SECONDLY, ALL THAT S. 110 OF THE EVIDENCE ACT DOES IS THAT IT EMBODIES A SALUTARY PRINCIPLE OF COMMON LAW JURISPRUDENCE WHICH COULD BE ATTRACTED TO A SET OF CIRCUMSTANCES THAT SATISFY ITS CONDITIONS. (EMPHASIS SUPPLIED ) 2.7 IN LIGHT OF ABOVE, IT IS CRYSTAL CLEAR THAT WHE RE THE CASH IS FOUND IN POSSESSION OF THE ASSESSEE BY VIRTUE OF DEPOSITS IN HER BANK ACCOUNTS MAINTAINED AND OPERATED BY HER, THE ONUS IS ON THE ASSESSEE TO DISCHARGE THE BURDEN THAT CASH DOESNT BELONG TO HER AND BELONG T O THE MARBLE TRADERS. FURTHER, THE ASSESSEE HAS TO ADDUCE NECESSARY EVIDE NCE TO SUBSTANTIATE HER CLAIM. 2.8 THE NEXT QUESTION THAT ARISES FOR CONSIDERATION IS WHETHER IN THE INSTANT CASE, THE ASSESSEE HAS DISCHARGED HER ONUS IN TERMS OF EXPLAINING THE NATURE AND SOURCE OF DEPOSITS AND WITHDRAWALS IN VARIOUS B ANK ACCOUNTS THROUGHOUT THE YEAR. THE ASSESSEE HAS STATED IN HER STATEMEN T RECORDED DURING THE COURSE OF SURVEY THAT SHE HAS GIVEN THE PARTICULARS OF THE DEPOSITORS AND THE BENEFICIARIES TO THE INVESTIGATION WING. ADMITTEDL Y, THE ASSESSEE WAS THEREFORE HAVING KNOWLEDGE AND ACCESS TO THE INFORMATION/DAT A IN TERMS OF VARIOUS DEPOSITERS AND THE BENEFICIARIES. THE ASSESSEE CO ULD HAVE SUBMITTED THE SAID INFORMATION/DATA TO THE AO DURING THE COURSE OF ASS ESSMENT PROCEEDINGS. THERE IS NOTHING ON RECORD TO SUGGEST THAT THE ASSE SSEE WAS NOT HAVING ACCESS TO THE SAID INFORMATION OR WAS PREVENTED BY SUFFICI ENT CAUSE FROM SHARING THESE INFORMATION WITH THE AO. IT IS NOT THE PLEA OF THE ASSESSEE ALL THESE DOCUMENTS WERE SEIZED DURING THE COURSE OF SURVEY A ND SHE WAS NOT HAVING ACCESS TO ALL THESE DOCUMENTS WHICH WERE ADMITTEDLY MAINTAINED BY HER WHILE TRANSACTING THROUGH HER BANK ACCOUNTS. IN OUR VIEW IT IS FOR THE ASSESSEE IN WHOSE BANK ACCOUNTS THE MONEY HAS BEEN FOUND DEPOSI TED TO EXPLAIN THE NATURE AND SOURCE OF SUCH DEPOSITS AND IT IS IN RES PECT OF EVERY SUCH TRANSACTION, THE ASSESSEE HAS TO PROVIDE THE NECESSARY EXPLANATI ON TO THE AO. SIMILARLY, THE CLAIM OF THE ASSESEEE THAT THE MONEY WAS WITHDRAWN AND GIVEN TO THE VARIOUS BENEFICIARIES HAS TO BE EXPLAINED FOR EACH OF THE T RANSACTIONS AND THE NECESSARY LINKAGE/NEXUS HAS TO BE ESTABLISHED BY THE ASSESSEE . THE SAME IS IN CONFORMITY ITA NO. 943/JP/15 ACIT,CC, AJMER VS. SMT. KUSUMDEVI VIJAYVARGIYA, KIS HANGARH 25 WITH THE PROPOSITION OF LAW LAID DOWN BY THE HONBLE RAJASTHAN HIGH COURT IN THE CASE OF R.S. RATHORE 212 ITR 350 (RAJ.). IN THAT CASE, EVEN THOUGH THE DECISION WERE RENDERED IN THE CONTEXT OF SECTION 68 , TO OUR MIND THE SAME IS EQUALLY RELEVANT FOR FACTS UNDER CONSIDERATION EVEN THOUGH THE ASSESSEE HAS NOT MAINTAINED BOOKS OF ACCOUNTS AND THE AO HAS NOT INV OKED SECTION 68 SPECIFICALLY IN THE INSTANT CASE. THE HONBLE HI GH COURT HAS OBSERVED AS UNDER: SEC. 68 REFERS TO CASH CREDITS WHICH ARE FOUND IN THE BOOKS OF THE ASSESSEE. IF THE EXPLANATION OFFERED BY THE ASSESSEE IS NOT SATI SFACTORY, THEN THE SUM SO CREDITED MAY BE CHARGED TO INCOME-TAX AS INCOME OF THE ASSESSEE IN THE PREVIOUS YEAR. THE BURDEN, THEREFORE, IS ON THE ASS ESSEE TO EXPLAIN SATISFACTORILY WITH REGARD TO THE AMOUNTS WHICH HAVE BEEN CREDITED IN THE BOOKS OF ACCOUNT BY THE ASSESSEE. THE SOURCE AND THE NATURE OF THE R ECEIPT HAS TO BE PROVED BY THE ASSESSEE, AND IF HE FAILS TO PROVE SATISFACTORI LY THE SOURCE AND NATURE OF THE AMOUNT RECEIVED, THE ASSESSING AUTHORITY IS ENTITLE D TO DRAW AN INFERENCE THAT THE RECEIPT IS ASSESSABLE INCOME OF THE ASSESSEE. THE TRIBUNAL HAS CAST DOUBTS WITH REGARD TO THE INVESTMENTS AND HAS EVEN OBSERVE D THAT SOME OF THEM ARE NOT EVEN GENUINE. A DUTY WAS CAST ON THE TRIBUNAL T O HAVE EITHER REMITTED THE MATTER TO THE CIT(A) OR TO THE ASSESSING AUTHORITY TO FIND OUT THE CORRECT POSITION. THERE MAY BE A NUMBER OF CREDITORS OF SIMILAR NATU RE, BUT THE ASSESSEE HAS TO DISCHARGE HIS BURDEN IN RESPECT OF ALL OF TH EM. THE BURDEN WAS TO BE DISCHARGED BY THE ASSESSEE AND ALL THE CREDITORS WE RE NOT PRODUCED, THEIR ADDRESSES WERE NOT GIVEN AND COGENT REASONS WERE GI VEN BY THE ITO. WHEN THE TRIBUNAL WAS OF THE VIEW THAT SOME OF THE INVESTMEN TS WERE NOT GENUINE IT SHOULD NOT HAVE UPHELD THE ORDER OF THE CIT(A) AND THE PROPER COURSE WAS TO SET ASIDE THE ORDER OF THE CIT(A) WITH A DIRECTION TO E ITHER ALLOW SUCH AMOUNTS FOR WHICH THE ASSESSEE HAS BEEN ABLE TO PROVE SATISFACT ORILY THE INVESTMENT OR TO GIVE HIM THE OPPORTUNITY TO PROVE SUCH UNEXPLAINED INVESTMENTS. THE OBSERVATIONS OF THE TRIBUNAL MAKES IT CLEAR THAT TH E TRIBUNAL ITSELF WAS IN DOUBT ABOUT THE CORRECTNESS OF ITS OWN CONCLUSION WHEN IT OBSERVED THAT SOME OF THE CASH CREDITS WERE NOT GENUINE. THUS, THE FINDING RE CORDED BY THE TRIBUNAL THAT SOME OF THE CASH CREDITS WERE NOT GENUINE VITIATES THE ORDER PASSED BY IT. THE BURDEN TO BE DISCHARGED BY THE ASSESSEE HAS NOT BEE N DISCHARGED AND THE ORDER OF THE CIT(A) COULD HAVE BEEN CONFIRMED ONLY IF THE TRIBUNAL WAS SATISFIED THAT ALL THE INVESTMENTS WERE SATISFACTORILY EXPLAINED. THE TRIBUNAL ITSELF WAS NOT IN A POSITION TO FEEL SATISFIED WITH REGARD TO THE EXP LANATION SUBMITTED AND ITA NO. 943/JP/15 ACIT,CC, AJMER VS. SMT. KUSUMDEVI VIJAYVARGIYA, KIS HANGARH 26 OBSERVED THAT SOME OF THE INVESTMENTS WERE NOT GENU INE. IT WAS NOT JUSTIFIED ON THE PART OF THE TRIBUNAL IN SUCH A CASE TO UPHOLD T HE ORDER OF THE CIT(A). WHILE EXPLAINING THE VARIOUS CREDITS AND INVESTMENTS, IT MAY BE POSSIBLE THAT THE ASSESSEE MAY BE SUCCESSFUL IN EXPLAINING SOME OF TH EM, BUT THAT DOES NOT BY ITSELF MEAN THAT THE ENTIRE INVESTMENTS HAVE TO BE CONSIDERED AS EXPLAINED. EVEN LAPSE OF TIME OR INABILITY OF THE ASSESSEE WOU LD NOT MAKE THE UNEXPLAINED INVESTMENT AN EXPLAINED ONE. IT IS EACH AND INDIVID UAL ENTRY ON WHICH THE MIND HAS TO BE APPLIED BY THE TAXING AUTHORITY WHEN AN E XPLANATION IS OFFERED BY THE ASSESSEE. IF NO EXPLANATION HAS BEEN OFFERED IN RES PECT OF A PARTICULAR ENTRY, THE TAXING AUTHORITY WILL BE JUSTIFIED IN COMING TO THE CONCLUSION THAT THE SAID INVESTMENT IS UNEXPLAINED. IT IS NOT THE TOTALITY O F THE CREDIT ENTRIES WHICH ARE TO BE ALLOWED OR TO BE DISALLOWED. THIS WORK HAS TO BE DONE ON THE BASIS OF THE EXPLANATION OFFERED FOR DIFFERENT ENTRIES AND IF TH E EXPLANATION OF THE ASSESSEE IS ACCEPTABLE ON THE BASIS OF THE EVIDENCE PRODUCED BEFORE THE TAXING AUTHORITY, THE TRIBUNAL CAN COME TO THE CONCLUSION THAT SUCH I NVESTMENT IS FULLY EXPLAINED. IN THESE CIRCUMSTANCES, THE TRIBUNAL WAS NOT JUSTIF IED IN CONFIRMING THE ORDER OF THE CIT(A) AND THERE IS CONTRADICTION IN ITS DECISI ON IN HOLDING THAT ALL INVESTMENTS CANNOT BE TREATED AS UNEXPLAINED THOUGH SOME OF THEM ARE CERTAINLY NOT GENUINE. THE MATTER IS REMITTED BACK TO THE TRIBUNAL TO CONSIDER EACH INDIVIDUAL INVESTMENT FOR WHICH AN EXPLANATION HAS BEEN GIVEN. IF THE TRIBUNAL IS SATISFIED WITH THE EXPLANATION SUBMITTE D BY THE ASSESSEE, THEN THE INVESTMENT TO THAT EXTENT HAS TO BE ALLOWED AND THE ENTIRE SUM CANNOT BE ALLOWED IN GENERAL. (EMPHASIS SUPPLIED) 2.9 IN OUR VIEW, MERELY BY MAKING A STATEMENT BEFOR E THE ASSESSING OFFICER THAT THE DETAILS OF THE DEPOSITORS AND THE BENEFICI ARIES WERE SUBMITTED TO THE INVESTIGATION WING, THE ONUS CAST ON THE ASSESSEE I S NOT DISCHARGED. IT IS FOR THE ASSESSEE TO EXPLAIN EACH AND EVERY ENTRY OF DEPOSIT AND WITHDRAWAL IN THE BANK ACCOUNTS AND CORROBORATE IT WITH THE DETAILS MENTIO NED IN THE NOTEBOOKS AND OTHER LOOSE PAPERS FOUND DURING THE COURSE OF SURVE Y. THERE IS NOTHING ON RECORD TO SUGGEST THAT ANY SUCH EXPLANATION AND REC ONCILIATION OF VARIOUS TRANSACTIONS WERE SUBMITTED EITHER DURING THE COURS E OF SURVEY OR DURING THE ASSESSMENT PROCEEDINGS OR EVEN DURING THE APPELLATE PROCEEDINGS. ONCE THE SAID EXERCISE HAS BEEN UNDERTAKEN AND EXAMINED, THE QUESTION OF LOOKING AT THE CIRCUMSTANTIAL EVIDENCES OR THE THEORY OF PROBABILI TY AS TO WHETHER THE ASSESSEE HAS THE NECESSARY INFRASTRUCTURE TO UNDERTAKE MARBL E TRADING CAN BE LOOKED AT. ITA NO. 943/JP/15 ACIT,CC, AJMER VS. SMT. KUSUMDEVI VIJAYVARGIYA, KIS HANGARH 27 WHERE THE TRANSACTION DETAILS ARE AVAILABLE, THE SA ME SHOULD TAKE PRECEDENCE OVER THE CIRCUMSTANTIAL EVIDENCE. THE ASSESSING OF FICER THEREAFTER HAS TO APPLY HIS DISCRETION AND SEE WHETHER HE IS COMFORTABLE WI TH THE EXPLANATION OF THE ASSESSEE OR NOT AND THEN TAKE A FINAL VIEW IN THE M ATTER. 2.10 HAVING SAID THAT, WE ARE ALSO INTRIGUED BY THE INACTION ON THE PART OF THE REVENUE AND IN PARTICULAR THE AO WHEREBY HE HAS FAI LED TO CONSIDER THE DETAILS OF THE DEPOSITORS AND BENEFICIARIES AS CLAIMED TO BE SUBMITTED BY THE ASSESSEE DURING THE COURSE OF SURVEY. IDEALLY, THE AO SHOULD HAVE CONFRONTED THE ASSESSEE WITH THE DETAILS FOUND DURING THE SURVEY A ND SOUGHT AN EXPLANATION REGARDING VARIOUS DEPOSITS AND WITHDRAWALS IN RESPE CT OF VARIOUS BANK ACCOUNTS MAINTAINED BY THE ASSESSEE, THE DETAILS IN RESPECT OF WHICH HAS BEEN OBTAINED BY THE AO BY ISSUING NOTICES CALLING FOR THE INFORM ATION FROM THE VARIOUS BANKS. IT SEEMS TO US THAT THE REASON FOR INACTION ON THE PART OF THE AO IS ACCOUNT OF AO NOT HAVING NECESSARY RECORDS OF SURVEY MAINTAINE D BY THE INVESTIGATION WING. THERE THUS SEEMS TO BE A CLEAR LACK OF CO-OR DINATION BETWEEN THE INVESTIGATION WING AND THE ASSESSING OFFICER HANDLI NG THE ASSESSMENT. WE DO NOT SEE A JUSTIFIABLE REASON ESPECIALLY WHERE THE C ASE OF THE ASSESSEE ALONGWITH OTHER SIMILAR ASSESSES WERE CENTRALIZED BEFORE A S INGLE ASSESSING AUTHORITY, WHY THE SURVEY RECORDS CANNOT BE SHARED WITH THE S AID AUTHORITY SO THAT THE EFFORTS INITIATED THROUGH SURVEY CAN LEAD TO A LOGI CAL CONCLUSION BY ARRIVING AT THE APPROPRIATE ASSESSMENT IN THE HANDS OF RIGHT PE RSONS. THE FACT IS THAT HUGE CASH HAS BEEN FOUND DEPOSITED IN THE BANK ACCOUNTS MAINTAINED BY THE ASSESSEE AND IT IS THE ASSESSEES PLEA THAT MONEY D OES NOT BELONG TO HER AND IT BELONGS TO SOME OTHER BENEFICIARIES. THE MONEY THER EFORE BELONGS TO SOMEONE WHO SHOULD BE BROUGHT TO TAX AS PER LAW WHERE THE P LEA OF THE ASSSESSEE IS ACCEPTED. 2.11 NOW LOOKING AT THE ORDER OF THE LD CIT(A), WE FIND THAT EVEN LD CIT(A) HAS MERELY GONE THROUGH THE SURVEY REPORTS AND THE STAT EMENTS RECORDED DURING THE COURSE OF SURVEY. HOWEVER, AS WE HAVE NOTED AB OVE, WITH A VIEW TO ARRIVE AT A DEFINITIVE FINDING, THERE IS A NECESSITY TO CO RROBORATE THE SAID STATEMENTS GIVEN BY THE ASSESSEE IN TERMS OF ACTING AS FACILIT Y PROVIDERS. AND FOR THAT, INFORMATION RELATING TO PARTY-WISE DETAILS OF DEPOS ITS MADE IN ALL THE BANK ACCOUNTS AS WELL AS NAMES AND ADDRESSES OF ALL THE BENEFICIARIES/MARBLE TRADERS TO WHOM THE CASH WAS WITHDRAWN AND HANDED OVER BY T HE ASSESSEE IS REQUIRED ITA NO. 943/JP/15 ACIT,CC, AJMER VS. SMT. KUSUMDEVI VIJAYVARGIYA, KIS HANGARH 28 TO BE EXAMINED. IT IS FOR THE ASSESSEE TO EXPLAIN E ACH AND EVERY ENTRY OF DEPOSIT AND WITHDRAWAL IN THE BANK ACCOUNTS AND CORROBORATE IT WITH THE DETAILS MENTIONED IN THE NOTEBOOKS AND OTHER LOOSE PAPERS F OUND DURING THE COURSE OF SURVEY AND THE NECESSARY LINKAGE/NEXUS HAS TO BE ES TABLISHED BY THE ASSESSEE. THERE IS NOTHING ON RECORD TO SUGGEST THAT ANY SUCH EXPLANATION AND RECONCILIATION OF VARIOUS TRANSACTIONS WERE SUBMITT ED DURING THE APPELLATE PROCEEDINGS OR EXAMINED BY THE LD CIT(A). 2.12 IN OUR VIEW, THE MATTER REQUIRES A DEEPER AND A COORDINATED EXAMINATION BY THE AUTHORITIES AT THE HIGHER LEVEL TO BRING THE CORRECT FACTS ON RECORD WHICH SHOULD CONCLUSIVELY ESTABLISH THAT EITHER THE ASSES SEE IS THE OWNER OF THE MONEY FOUND DEPOSITED IN HER BANK ACCOUNTS AS CLAIMED BY THE AO OR THE ASSESSEE IS MERELY A FACILITATOR AND EARNS COMMISSION INCOME AS CLAIMED BY THE ASSESSEE. ACCORDINGLY, WE SET-ASIDE THE MATTER TO THE FILE OF THE LD CIT(A) TO EXAMINE THE MATTER AFRESH WITH THE FOLLOWING DIRECTIONS: (1) THE ASSESSEE SHALL PROVIDE ALL THE REQUISITE D ETAILS IN TERMS OF NAMES AND ADDRESS AND OTHER REQUISITE PARTICULARS OF THE DEPO SITORS AS WELL AS OF THE BENEFICIARIES; (2) THE ASSESSEE HAS TO EXPLAIN THE NATURE AND SOU RCE OF THE TRANSACTIONS IN TERMS OF DEPOSITS AND ESTABLISH THE NECESSARY LINKA GE BETWEEN THE DEPOSITS AND THE SUBSEQUENT WITHDRAWALS TO VARIOUS INDIVIDUAL BE NEFICIARIES; (3) THE LD CIT(A) SHALL CALL FOR THE RECORDS MAIN TAINED BY THE INVESTIGATION WING IN RESPECT OF THE SURVEY PROCEEDINGS AND CONF RONT THE SAME TO THE ASSESSEE TO PROVIDE HER A SUITABLE OPPORTUNITY; (4) THE BENEFICIARIES TO BE CONFRONTED WITH THE DET AILS SUBMITTED BY THE ASSSESSEE AND CALL FOR THEIR CONFIRMATION AND/OR PE RSONAL APPEARANCES AND/OR COORDINATE WITH THEIR RESPECTIVE CITS/ASSESSING OFF ICERS; AND (5) NEEDLES TO SAY, BOTH THE PARTIES SHALL BE PROVI DED SUITABLE OPPORTUNITY AND THEY SHALL EQUALLY COOPERATE AND SHALL SUBMIT NECES SARY EXPLANATION/INFORMATION/DOCUMENTS AS AVAILABLE AND REQUIRED BY THE LD CIT(A). ITA NO. 943/JP/15 ACIT,CC, AJMER VS. SMT. KUSUMDEVI VIJAYVARGIYA, KIS HANGARH 29 2.13 WITH THE ABOVE DIRECTIONS, WE SET-ASIDE THE MA TTER TO THE FILE OF THE LD CIT(A) FOR A FRESH EXAMINATION AND THE APPEAL OF TH E REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 2.14 IN ITA NO. 943-945/JP/15 IN CASE OF SMT KUSUMD EVI VIJAYVARGIA, ITA NO. 932-935/JP/15 IN CASE OF SMT SUDARSHNA SOMANI AND I TA NO. 940-941/JP/15 IN CASE OF SHRI NARESH KUMAR AGARWAL, BOTH PARTIES AGR EED THAT THE FACTS ARE PARI- MATERIA AND SIMILAR GROUNDS OF APPEAL HAVE BEEN RAI SED BY THE REVENUE AS IN ITA NO. 942/JP/15 DECIDED SUPRA. IN VIEW OF THE SA ME, OUR OBSERVATIONS AND DECISION IN ITA NO. 942/JP/15 SHALL APPLY MUTATIS-M UTANDIS TO THESE APPEALS AS WELL. ORDER PRONOUNCED IN THE OPEN COURT ON 20/10 /2016. SD/- SD/- ( KUL BHARAT ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 20/ 10/2016 PILLAI VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- ACIT, CENTRAL CIRCLE, AJMER 2. IZR;FKHZ@ THE RESPONDENT- SMT. KUSUMDEVI VIJAYVARGIYA, KISHAN GARH 3. VK;DJ VK;QDR@ CIT (CENTRAL), JAIPUR 4. VK;DJ VK;QDRVIHY@ THE CIT(A)-II, UDAIPUR 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO.943 /JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR. ITA NO. 943/JP/15 ACIT,CC, AJMER VS. SMT. KUSUMDEVI VIJAYVARGIYA, KIS HANGARH 30