SMT KAMLA SETHI, Jaipur V. DCIT, Alwar

ITA 955/JPR/2012

• Counselvise Citation: 95523114 RSA 2012
• Duration Of Justice: 1 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-03-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 27-12-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K KHANDELWAL
• Assessee Lawyers: S L PODDAR
• Keywords: Unexplained investment; Gift; Search and seizure; Salary income; Loose papers; Document seized; Question of law; Cost of acquisition; Retraction
• Section: 143(3); 133A; 153A; 234B; 132

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH, JAIPUR ( BEFORE SHRI HARI OM MARATHA AND SHRI N.K. SAINI ) ITA NO. 955/JP/2012 ASSESSMENT YEAR: 2009-10 PAN: AETPS 1487 E SMT. KAMLA SETHI VS THE DCIT 153, LAJPAT NAGAR CENTRAL CIRCLE- ALWAR SCHEME NO. 2, ALWAR ALWAR (APPELLANT) (RESPONDENT) ITA NO. 956/JP/2012 ASSESSMENT YEAR: 2008-09 PAN: ADTPS 9789 E SHRI JAGDISH PRASAD SETHI VS THE DCIT 153, LAJPAT NAGAR CENTRAL CIRCLE- ALWAR SCHEME NO. 2, ALWAR ALWAR (APPELLANT) (RESPONDENT) ITA NO. 886/JP/2013 ASSESSMENT YEAR: 2009-10 PAN: AEEPPS 4063 Q SMT. SUDHA SETHI VS THE DCIT 153A, LAJPAT NAGAR CENTRAL CIRCLE- ALWAR SCHEME NO. 2, ALWAR ALWAR (APPELLANT) (RESPONDENT) 2 ITA NO. 11/JP/2013 ASSESSMENT YEAR: 2010-11 PAN: AGBPS 4111 M SHRI DILIP SETHI VS THE DCIT 153A, LAJPAT NAGAR CENTRAL CIRCLE- ALWAR SCHEME NO. 2, ALWAR ALWAR (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S.L. PODDAR DEPARTMENT BY : SHRI A.K. KHANDELWAL DATE OF HEARING : 28.01.2014. DATE OF PRONOUNCEMENT : 05.03..2014 ORDER PER HARI OM MARATHA, J.M. THESE ARE THE APPEALS FILED BY THE ABOVE CAPTIONED ASSESSEES AGAINST DIFFERENT ORDERS OF THE LD CIT(A), CENTRAL, JAIPUR DATED 30-11-2012 AND 17- 10-2013. ALL THESE APPEALS WERE HEARD TOGETHER. THE REFORE, FOR THE SAKE CONGRUENCE, CONVENIENCE AND BREVITY, WE ARE PROCEED ING TO DECIDE THEM BY A COMMON ORDER. ITA NO. 955/JP/2012 A.Y.2004-05(SMT. KAMLA SETH I ) 2.1 BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT A SEARCH AND SEIZURE OPERATION U/S 132 OF THE INCOME-TAX ACT, 1961(THE ACT FOR SHORT) AND A SURVEY U/S 133A OF THE ACT WERE SIMULTANEOUSLY COND UCTED BY THE INCOME 3 TAX DEPARTMENT IN RESPECT OF THE MEMBERS OF SETHI GROUP ON 08-10-2009 OF WHICH THIS ASSESSEE IS ONE OF THE MEMBERS. THE ASSE SSEE IS MOTHER OF DR DILIP SETHI WHO ALLEGEDLY HEADED THIS SO CALLED DR . SETHI GROUP OF ALWAR. DURING THESE OPERATIONS, CASH, JEWELLERY, STOCK-IN- TRADE, VALUABLES, DOCUMENTS, BOOKS OF ACCOUNT AND /OR LOOSE PAPERS WE RE FOUND AND SEIZED FROM THE PREMISES OF DIFFERENT MEMBERS OF THIS GROU P. CONSEQUENTLY, NOTICE U/S 153A OF THE ACT DATED 08-06-2010 WAS ISSUED AND SERVED ON THE ASSESSEE REQUIRING HER TO FILE THE RETURN OF INCOME [ROI] AS PRESCRIBED UNDER RUE 12 OF THE INCOME TAX RULES,1962 WITHIN 30 DAYS FROM TH E DATE OF SERVICE OF NOTICE. THE ASSESSEE COMPLIED WITH THE NOTICE BY FI LING RETURN DECLARING AN INCOME OF RS. 7,28,560/- ON 11-08-2010. AS PER THE ASSESSMENT ORDER, THIS ASSESSEE PRIMARILY DERIVES HER INCOME FROM HOUSE PR OPERTY, BUSINESS OR PROFESSION, CAPITAL GAIN AND OTHER SOURCES. 2.2 DURING THE COURSE OF SEARCH, IT WAS FOUND THAT THE ASSESSEE HAD MADE SUBSTANTIAL INVESTMENT IN PURCHASE OF LAND. A LOOSE PAPER/ DOCUMENT WAS FOUND AND SEIZED AS PAGE 17 OF ANNEXURE A-7 FROM HO USE NO 153, LAJPAT NAGAR, ALWAR, CONTAINING DETAILS OF TRANSACTIONS IN RESPECT OF INVESTMENT MADE IN PURCHASE OF LAND AT VILLAGE BUBKAHEDA, TEHS IL TIJARA, ALWAR IN WHICH THE ASSESSEE HAD 50% SHARE. SO ACCORDING TO T HIS DOCUMENT, AN AMOUNT OF RS. 28,37,500/- WAS PAID TO THE VENDOR FO R THE PURCHASE OF THE 4 LAND. DURING SEARCH, THE STATEMENT OF DR. DILIP SE THI WAS RECORDED U/S 132(4) OF THE ACT ON 08/09-10-2009. DURING SEARCH DR. SETHI WHILE REPLYING TO Q. NO. 18 STATED THAT THE PAYMENT FOR THE PURCHA SE OF LAND IN QUESTION WAS MADE BY THE ASSESSEE OUT OF HER UNDISCLOSED INCOME DURING THE RELEVANT A.Y. AND, THEREFORE, SURRENDERED THE SAME FOR TAXATION. HOWEVER, IN THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE ISSUED U/S 153A OF THE ACT, THE ASSESSEE HAS NOT DISCLOSED THIS SURRENDERED INVESTMENT. SHE HAS ALSO NOT PAID ANY TAX THEREON. RESULTANTLY, SHE WAS SHOW CAUSED VIDE LETT ER DATED 02-11-2011 WHICH IS REPRODUCED AS UNDER:- AS PER SEIZED DOCUMENT BEING PAGE 17 OF ANNEXUR E A-7 SEIZED FROM HOUSE NO 153, LAJPAT NAGAR, ALWAR, A P ROPERTY HAS BEEN PURCHASED IN CO-OWNERSHIP WITH SMT. PREM LATA GOYA L W/O SHRI O.P. GOYAL SITUATED AT VILLAGE BUBKAHEDA, TEHSIL TIJARA , ALWAR. AS PER PURCHASE DEED, AN AMOUNT OF 805300/- WAS PAID IN C ASH. HOWEVER, AS PER THE ABOVE MENTIONED SEIZED DOCUMENT SUGGESTS T HAT THE COST OF THE SAID PROPERTY WAS RS. 28,37,500/-. SO THE DIFFEREN CE OF RS. 20,32,200/- (2837500 805300) HAS BEEN PAID IN CA SH. SINCE YOU HAVE A 50% OWNERSHIP OF THE LAND IN QUESTION, THER EFORE, AN AMOUNT OF RS. 10,16,100/- (RS. 20,32,200/- ) IS ATTRIBUTED T O HAVE BEEN PAID BY YOU. EXPLAIN AS TO WHY THE SAME [RS.10,16,100/-] S HOULD NOT BE ADDED TO YOUR INCOME AS UNEXPLAINED INVESTMENT?... 2.3 THE ABOVE SHOW CAUSE NOTICE WAS REPLIED BY THE ASSESSEE VIA LETTER DATED 08-12-2011 STATING THEREIN AS UNDER:- (I) THE ASSESSEE HAS PURCHASED AGRICULTURE LAND A T VILLAGE DHARYABAS SUB TEHSIL TAPUKADA, ALWAR (1/2) FOR RS.400000/-WITH IN CO-OWN ERSHIP WITH SMT. PREM LATA GOYAL W/O SHRI O.P. GOYAL DURING THE A.Y. 2009-10. THIS INVESTMENT HAS BEEN DULY DISCLOSED 5 IN THE INCOME TAX RETURN AND BALANCE SHEET OF THE A SSESSEE FILED WITH THE INCOME TAX OFFICE. THE COPY OF ACCOUNT OF SUCH INVESTMENT OF LAND, EVIDENCE OF SOURCE OF INVESTMENT OF RS. 400000/-, INCOME TAX RETURN, BALANCE SHEET A ND SALE DEED IS ENCLOSED. (II) SO FAR AS, THE SEIZED DOCUMENT AS PER PAGE NO. 15 OF ANNEXURE A-7 IS CONCERNED, IT CONTAINS CERTAIN CALCULATION IN RESPECT OF ABOVE LA ND. THIS CALCULATION IS MADE BY TAKING THE LAND RATE AT RS. 14.50 LACS PER BIGHA AND AFTER INCLUDING THE EXPENSES THE TOTAL VALUE OF THE LAND IS ARRIVED AT RS. 2837500/-. THE CALCULAT ION ON THIS PAPER IS PRESUMED BY YOUR GOOD SELF AS THE COST OF THE SAID LAND AND CONSIDER ING OF THE ASSESSEE SHARE AND THE RECORDED PAYMENT OF RS. 1140000/- IT IS PROPOSED TO MAKE ADDITION OF RS. 1016100/- (1/2 OF 2032200/-) AS UNEXPLAINED INVESTMENT. THIS PRES UMPTION IS INCORRECT FOR THE FOLLOWING REASONS:- (A) THE PAPERS NOWHERE REFLECT/INDICATE ANY PAYMENT. I T ONLY CONTAINS SOME CALCULATION BY TAKING DIFFERENT LAND RATES FOR DIFFERENT LAND. THE ASSESSEE HAS NO INTEREST IN OTHER LAND FOR WHICH CALCULATION IS MADE ON THIS PAPER. IN SEARCH NO EVIDENCE, AGREEMENT OR ANY RECEIPT OR PAYMENT OF ANY UNEXPLAINED INVEST MENT, WAS FOUND IN RESPECT OF THIS LAND. THEREFORE, THE AMOUNT WRITTEN ON THIS P APER CANNOT BE CONSIDERED AS PAYMENT OF EXTRA CONSIDERATION TOWARDS THE PURCHASE OF SAID LAND. (B) THE PAPER IS NOT DATED. THEREFORE, IT IS TO BE PRES UMED TO THE DATE OF SEARCH I.E. 08/10/2009 WHEREAS THE SAID LAND WAS PURCHASED ON 29/05/2008. THE ASSESSEE PURCHASED THIS LAND @ RS. 6.50 LACS PER BIGHA WHERE AS THE CALCULATION MADE ON THIS PAPER ON IS @ 14.50 LACS PER BIGHA. THEREFORE, IN THE ABSENCE OF ANY REFERENCE OF PAYMENT ON THIS PAPER IT CANNOT BE PRESUMED AS RELA TABLE TO THE PURCHASE COST OF THIS LAND. (C) IT MAY BE NOTED THAT THIS PROPERTY WAS PURCHASED WI TH CO-OWNERSHIP OF SMT. PREMLATA W/O O.P. GOYAL. THE AFFIDAVIT OF SMT. PREMLATA REG ARDING THE COST OF ACQUISITION OF THIS LAND IS ENCLOSED. INDEPENDENT ENQUIRY MAY BE M ADE FROM SUCH PERSON TO ASCERTAIN THE ACTUAL COST OF THIS LAND. (D) DURING THE COURSE OF SEARCH, THE SON OF THE ASSESSE E D.R. DILIP SETHI MADE SURRENDER OF RS. 1038000/- IN RESPECT OF THIS LAND IN REPLY T O Q NO. 18 OF HIS STATEMENT DATED 09/10/2009 U/S 132(4). THIS STATEMENT WAS GIVEN BY HIM UNDER DURESS, PRESSURE AND TENSION AND THEREFORE, HE SUBSEQUENTLY RETRACTED FR OM SUCH SURRENDER VIDE LETTER DATED 31/05/2010 FILED BEFORE ADIT, JAIPUR. COPY OF THIS LETTER WAS ALSO FILED WITH THE RETURN. AFFIDAVIT OF THE ASSESSEE WAS ALSO FILED. COPY OF THE LETTER AND AFFIDAVIT IS AGAIN ENCLOSED. OTHERWISE ALSO D.R. DILIP SETHI, S ON OF THE ASSESSEE HAS NO LOCUS STANDI TO MAKE THE SURRENDER ON BEHALF OF THE ASSES SEE AS ASSESSEE IS INDEPENDENT INCOME TAX ASSESSEE SINCE, LAST 20 YEARS. NO CONFO RMATION OF THE ASSESSEE REGARDING THIS SURRENDER WAS OBTAINED AT THE TIME OF SEARCH. IN THESE CIRCUMSTANCES, ONLY ON THE BASIS OF STATEMENT OF D.R. DILIP SETHI, NO ADVERSE INFERENCE CAN BE DRAWN AGAINST THE ASSESSEE. (E) IT IS PERTINENT TO NOTE THAT DESPITE OF FILING THE LETTER OF RETRACTION BY THE SON OF THE ASSESSEE, NO INDEPENDENT ENQUIRY WAS MADE FROM THE SELLER OF THE LAND. HENCE IN THE 6 ABSENCE OF ANY MATERIAL AS TO ANY UNRECORDED INVEST MENT IN PURCHASE OF THE LAND, NO ADVERSE INFERENCE CAN BE DRAWN. (F) SMT. PREM LATA GOYAL, CO-OWNER OF THE ABOVE AGRICUL TURE LAND HAS CONFIRMED THROUGH AFFIDAVIT DULY EXECUTED AND ATTESTED BY NOT ARY THAT SHE HAS PURCHASED HALF SHARE FOR RS.380000/- AND NO ANY OTHER UNDISCLOSED INVESTMENT HAS BEEN MADE. COPY OF AFFIDAVIT IS ENCLOSED. (G) IT HAS BEEN PRESUMED BY YOUR GOODSELF THAT UNEXPLAI NED INVESTMENT RS. 1016100/- HAS BEEN PAID BY THE ASSESSEE IN PURCHASES OF AFORE SAID AGRICULTURE LAND. IT SHOWS THAT THE MARKET VALUE OF THE ABOVE LAND WAS RS. 142 2325/- INCLUDING UNEXPLAINED INVESTMENT RS. 1016100/-. THE MARKET VALUE OF ANY PROPERTY IS GENERALLY DECIDED BY DLC FOR STAMP DUTY PURPOSE. IN THE INSTANT CASE, T HE VALUE DETERMINED BY THE DLC IS EXACTLY SAME AS SHOWN IN SALE DEED AS PURCHASES COS T. HENCE, THE PRESUMPTION FOR UNEXPLAINED INVESTMENT IS NOT JUSTIFIED. COPY OF S ALE DEED IS ENCLOSED TO VERIFY THE DLC VALUE. (H) THE CONTENTS OF THE PAPER IS ONLY SIMPLE CALCULATIO N OF EXPECTED SALE PRICE THROUGH BROKER OR ACQUISITION PRICE OF LAND BY RIICO LTD. J UST BEFORE THE SEARCH. THERE IS NO ANY RELATION OF CALCULATION IN RESPECT OF PURCHASES COST. (I) IN VIEW OF 1. CONFIRMATION BY THE ASSESSEE (AFFIDAV IT), 2. CONFIRMATION BY THE CO- OWNER (AFFIDAVIT) 3. JUSTIFICATION OF SALES VALUE B Y DLC NO ADVERSE INFERENCE SHOULD BE DRAWN FOR UNEXPLAINED INVESTMENT RS. 1016100/- I N PURCHASES OF ABOVE LAND 2.4 AFTER CONSIDERING THE ABOVE REPLY , THE A.O. WA S NOT SATISFIED AND AFTER MAKING CERTAIN OBSERVATIONS IN HIS ORDER HE H AS REJECTED THE ASSESSEES SUBMISSIONS, THE GIST OF WHICH IS THAT THE IMPUGNED PAPER CONTAINS SOME ROUGH CALCULATION REGARDING RATES IN DIFFERENT LAN D WITHOUT BRINGING OUT OR ESTABLISHING AS TO WHICH RATE SHE WAS REFERRING TO OR TALKING ABOUT. THE A.O. HAS ALSO NOT BELIEVED THE EVIDENCE OF CO-OWNER FILE D THROUGH AFFIDAVIT. THE CASE OF THE ASSESSEE IS THAT SHE NEVER MADE SURREN DER OF ANY AMOUNT. IN THIS REGARD, IT HAS BEEN REFUTED BY THE A.O. ON THE PREM ISES OF HER SON DR. SETHI BEING A MAIN PERSON OF THE GROUP. HIS STATEMENT WOU LD BIND HER ALSO. HE HAS ALSO REJECTED THE CONTENTION OF THE ASSESSEE THAT T HIS PAPER IS NEITHER DATED 7 NOR SIGNED BY ANYBODY AND IT IS DEAF AND DUMB PAPER FROM WHICH NO VALID INFERENCE CAN BE DRAWN. THEREFORE, BY CHRISTENING T HE ENTIRE DEFENCE RAISED BY HER AS AN AFTER THOUGHT, THE A.O. HAS HELD THAT 50% SHARE IN PURCHASE OF SAID PROPERTY COMES TO RS. 10,16,000/- AND THE SAME HAS BEEN ADDED IN HER HANDS IN A.Y. 2009-10. FURTHER DURING THE COURSE OF SEARCH, IT WAS ALSO FOUND THAT THE ASSESSEE HAD MADE SUBSTANTIAL INVEST MENT IN THE LAND. TWO LOOSE PAPERS / DOCUMENTS WERE FOUND AND SEIZED AS P AGE NO. 20 OF ANNEXURE A-7 FROM HOUSE NO. 153, LAJPAT NAGAR, ALWAR, CONTAI NING DETAILS OF TRANSACTION IN RESPECT OF INVESTMENT IN PURCHASE O F LAND AT VILLAGE MILAKPUR TURK, TEHSIL TIJARA, ALWAR. ACCORDING TO THIS DOCUM ENT A7/20, AN AMOUNT OF RS. 20,50,000/- HAD BEEN PAID FOR THE PURCHASE OF L AND IN THE SIMILAR MANNER. DR. SETHI HAS SURRENDERED THE ALLEGED AMOUNT WHILE MAKING HIS STATEMENT U/S 132(4) OF THE ACT. IN THIS REGARD WHEN SHE DID NOT DISCLOSE THIS SURRENDER MADE BY DR. SETHI IN HER RETURN OF INCOME THEN SHE WAS SHOW CAUSED AS UNDER:- AS PER SEIZED DOCUMENT BEING PAGE 20 OF ANNEXUR E A-7 SEIZED FROM HOUSE NO 153, LAJPAT NAGAR, ALWAR, A PROPERTY HAS BEEN PURCHASED SITUATED AT VILLAGE MILKPUR TURK, TEHSIL TIJARA, ALWAR. AS PER PURCHASE DEED, AN AMOUNT OF RS. 8,4 7,940/- WAS PAID. HOWEVER, THE ABOVE MENTIONED SEIZED DOCUMEN T SUGGEST THAT THE COST OF THE SAID PROPERTY WAS RS. 20,50, 000/-. SO THE DIFFERENCE OF RS. 12,02,060/- [ 2050000 847940] HAS BEEN PAID IN CASH AS ON MONEY. EXPLAIN AS TO WHY THE SAME [ RS. 12,02,060/- ] SHOULD NOT BE ADDED TO YOUR INCOME AS UNEXPLAINED INVESTMENT ?... 8 SHE REPLIED VIDE LETTER DATED 08-12-2011 AS UNDER:- (I) THE HAS PURCHASED AGRICULTURE LAND AT VILLA GE MILAKPUR, TEHSIL TIJARA, ALWAR FOR RS. 8,47,940/- DURING THE A.Y. 2009-10. THIS INVESTMENT HAS BEEN DULY DISCLOSED IN THE INCOME T AX RETURN AND BALANCE SHEET OF THE ASSESSEE FILED WITH THE INCOM E TAX OFFICE. THE COPY OF ACCOUNT OF SUCH INVESTMENT OF LAND, INCOME TAX RETURN, BALANCE SHEET AND EVIDENCE OF SOURCE OF INVESTMENT OF RS. 8,47,940/- , INCOME TAX RETURN, BALANCE SHEET AND SALE DEED IS ENCLOSED. (II) SO FAR AS, THE SEIZED DOCUMENT AS PER PAGE N O. 20 OF ANNEXURE A-7 IS CONCERNED, IT CONTAINS CERTAIN CAL CULATION IN RESPECT OF THE ABOVE LAND. THIS CALCULATION IS MADE BY TA KING THE LAND RATE AT RS. 7.50 LACS PER BIGHA AND AFTER INCLUDING THE EX PENSE THE TOTAL VALUE IS ARRIVED AT RS. 2050000/-. THE CALCULATION ON TH IS PAPER IS PRESUMED BY YOUR GOODSELF AS THE COST OF THE SAID LAND AND RECORDED PAYMENT OF RS. 847940/- AND IT IS PROPOSED TO MAKE ADDITION O F RS. 1202060/- AS UNEXPLAINED INVESTMENT. THIS PRESUMPTION IS INCORR ECT FOR THE FOLLOWING REASONS. (A) THE PAPER NOWHERE REFLECT/INDICATE ANY PAYMEN T. IT ONLY CONTAIN SOME CALCULATION BY TAKING DIFFERENT LAND RATES FOR DIFFERENT LAND. THE ASSESSEE HAS NO INTEREST IN O THER AND FOR WHICH CALCULATION IS MADE ON THIS PAPER. IN SEARC H NO EVIDENCE ,AGREEMENT OR ANY RECEIPT OR PAYMENT OF ANY UNEXP LAINED INVESTMENT WAS FOUND IN RESPECT OF THIS LAND. TH EREFORE, THE AMOUNT WRITTEN ON THIS PAPER CANNOT BE CONSIDERED AS PAYMENT OF EXTRA CONSIDERATION TOWARDS THE PURCHASE OF SA ID LAND. (B) THE PAPER IS NOT DATED. THEREFORE, IT IS TO B E PRESUMED TO BE THE DATE OF SEARCH I.E. 8-10-2009 WHEREAS THE SAID LAND WAS PURCHASED ON 13-08-2008. THE ASSESSEE PURCHASED T HIS LAND @ RS. 3.00 LACS PER BIGHA WHEREAS THE CALCULATION M ADE ON THIS PAPER IS @ RS7.50 LACS PER BIGHA. THEREFORE, IN T HE ABSENCE OF ANY REFERENCE OF PAYMENT ON THIS PAPER IT CANNOT BE PRESUMED AS RELATABLE TO THE PURCHASE COST OF THIS LAND. DURING THE COURSE OF SEARCH, THE SON OF THE ASS ESSEE DR. DILIP SETHI MADE A SURRENDER OF RS. 11,90,000/- I N RESPECT OF 9 THIS LAND IN REPLY TO Q.NO.18 OF HIS STATEMENT DA TED9-10-2009 U/S 132(4). THIS STATEMENT WAS GIVEN BY HIM UNDER DURESS, PRESSURE AND TENSION AND THEREFORE, HE SUBSEQUENT LY RETRACTED FROM SUCH SURRENDER VIDE LETTER DATED 31-05-2010 FILED BEFORE ADIT, JAIPUR. COPY OF THIS LETTER WAS ALSO FILED WITH THE RETURN. AFFIDAVIT OF THE ASSESSEE WAS ALSO FILED. COPY OF THE LETTER AND AFFIDAVIT IS AGAIN ENCLOSED. OTHERWISE ALSO DR. D ILIP SETHI, SON OF THE ASSESSEE HAS NO LOCUS STAND TO MAKE THE SU RRENDER ON BEHALF OF THE ASSESSEE AS ASSESSEE S INDEPENDENT INCOME TAX ASSESSEE SINCE LAST 20 YEARS. NO CONFIRMATION OF THE ASSESSEE REGARDING THIS SURRENDER WAS OBTAINED AT THE TIME OF SEARCH. IN THESE CIRCUMSTANCES, ONLY ON THE BASIS OF STATEME NT OF DR. DILIP SETHI, NO ADVERSE INFERENCE CAN BE DRAWN AGAINST THE ASSESSEE. (D) IT IS PERTINENT TO NOTE THAT IN SPITE OF FILI NG THE LETTER OF RETRACTION BY THE SON OF THE ASSESSEE , NO INDEPE NDENT ENQUIRY WAS MADE FROM THE SELLER OF THE LAND. HENCE, IN T HE ABSENCE OF ANY MATERIAL AS TO ANY UNRECORDED INVESTMENT IN P URCHASE OF THE LAND, NO ADVERSE INFERENCE CAN BE DRAWN. (E) THE SELLER OF THE LAND SMT. BEENA W/O SATISH HAS ALSO CONFIRMED THROUGH AFFIDAVIT EXECUTED AND DULY ATT ESTED BY NOTARY PUBLIC THAT THE ABOVE LAND HAS BEEN SOLD F OR RS. 8.00 LACS AND NO ANY OTHER AMOUNT HAS BEEN RECEIVED BY HER. COPY OF AFFIDAVIT IS ENCLOSED. INDEPENDENT ENQUIRY MAY BE MADE FROM SUCH PERSON TO ASCERTAIN THE ACTUAL COST OF THIS LAND. (F) IT HAS BEEN PRESUMED BY YOUR GOODSELF THAT UN EXPLAINED INVESTMENT OF RS. 1202060/- HAS BEEN PAID BY THE ASSESSEE IN PURCHASES OF AFORESAID AGRICULTURE LAND. IT SHOWS THAT THE MARKET VALUE OF THE ABOVE LAND WAS RS. 2050000/- INCLUDI NG UNEXPLAINED INVESTMENT RS. 1202060/-. THE MARKET VALUE OF ANY PROPERTY IS GENERALLY DECIDED BY THE DLC IS E XACTLY SAME AS SHOWN IN SALE DEED AS PURCHASE COST. HENCE, TH E PRESUMPTION FOR UNEXPLAINED INVESTMENT IS NOT JUSTIFIED. COPY OF SALE DEED IS ENCLOSED TO VERIFY THE DLC VALUE. (H) THE CONTAINS OF PAPER IS ONLY SIMPLE CALCULAT ION OF EXPECTED SALE PRICE THROUGH BROKER OR ACQUISITION PRICE OF LAND 10 BY RIICO LTD. JUST BEFORE THE SEARCH. THERE IS A NY RELATION OF CALCULATION IN RESPECT OF PURCHASES COST. (I) IN VIEW OF 1, CONFIRMATION BY THE ASSESSEE (A FFIDAVIT), 2, CONFIRMATION BY THE CO-OWNER (AFFIDAVIT), 3, JUST IFICATION OF SALES VALUE BY DLC NO ADVERSE INFERENCE SHOULD BE DRAWN FOR UNEXPLAINED INVESTMENT RS. 1202060/- IN PURCHASE OF ABOVE LAND THE A.O. AFTER CONSIDERING REPLY HAS REJECTED THE S AME AND HAS MADE AN ADDITION OF RS. 12,02,060/- IN HER HAND ON THE BASI S OF THIS PAPER A-7/20. THUS THE A.O. HAS ASSESSED THE TOTAL INCOME OF THE AT RS. 29,46,720/-. 2.5 AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE LD CIT(A) WHO HAS NOT GIVEN ANY RELIEF TO THE ASSESSEE. 2.6 NOW THE ASSESSEE IS FURTHER AGGRIEVED AND FILED THIS APPEAL BEFORE US BY TAKING FOLLOWING GROUNDS. 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY THE LD CIT(A) IS ILLEGAL AND VOID AB-IN ITO. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LD CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS . 10,16,100/- ON ACCOUNT OF ALLEGED UNDISCLOSED INVESTMENT IN L AND AT BUBKAHEDA. 3. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS . 1202,060/- ON ACCOUNT OF ALLEGED UNDISCLOSED INVESTMENT IN L AND AT MILKPUR. 4. THE ASSESSEE CRAVES YOUR INDULGENCE TO ADD AME ND OR ALTER ALL OR ANY GROUNDS OF APPEAL BEFORE OR AT T HE TIME OF HEARING. 11 2.7 WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE CA REFULLY PERUSED THE ENTIRE MATERIAL ON RECORD INCLUDING WRITTEN SUBMISS IONS / PAPER BOOK FILED BEFORE US. AT THE TIME OF HEARING, THE LD. AR OF TH E ASSESSEE HAS NOT PRESSED THE GROUND 1. THEREFORE, THE GROUND 1 OF THE ASSESS EE IS DISMISSED BEING NOT PRESSED. THE GROUND NO. 4 OF THE ASSESSEE IS GENERA L IN NATURE WHICH DOES NOT REQUIRE ANY ADJUDICATION. 2.8 THE GROUND NO. 2 OF THE ASSESSEE IS IN RESPECT OF ADDITION OF RS. 10,16,100/- MADE ON ACCOUNT OF ALLEGED UNDISCLOSED INVESTMENT IN LAND AT BUBKAHEDA. 2.9 BOTH PARTIES HAVE TAKEN SAME LINE OF ARGUMENTS WHICH CAN BE INFERRED FROM THE ORDERS OF THE AUTHORITIES BELOW. THE MAIN CONTENTION OF THE LD. AR SUBMISSION IN THIS REGARD CAN BE ENUMERATED AS UNDE R:- (A) THESE PAPERS HAVE WRONGLY BEEN TAKEN INTO CONSIDERA TION AS THE SAME ARE DUMP. (B) THESE PAPERS ARE DUMP BECAUSE THESE DO NOT CONTAIN ANY DATES. (C) THESE PAPERS DO NOT CONTAIN THE NAME OF THE ASSESSE E. (D) THESE PAPERS DO NOT CONTAIN THE SIGNATURE OF THE AS SESSEE. (E) THESE PAPERS ARE NOT WRITTEN BY THE ASSESSEE. (F) THE WRITER OF THESE PAPERS HAS NOT BEEN EXAMINED. (G) THE ASSESSEE HAS NOT BEEN EXAMINED WITH REFERENCE T O THESE PAPERS. 12 (H) THE ADDITION HAS BEEN MADE ON THE BASIS OF STATEMEN T OF THE SON OF THE ASSESSEE RECORDED U/S 132(4). THE ASSESSEE IS NOT B OUND BY WHAT HIS SON HAS SAID. (I) THERE IS NO PRESUMPTION AVAILABLE U/S 132(4A) FOR T HE STATEMENT RECORDED FOR USING THE SAME AS TRUE DURING THE COUR SE OF ASSESSMENT PROCEEDINGS IN THE ABSENCE OF SUBSTANTIATING MATERI AL. P.R. METRANI VS. CIT (2006) 287 ITR 209 (SUPREME COURT) (J) NO EVIDENCE HAS BEEN BROUGHT ON RECORD THAT MORE MO NEY WAS PAID IN THE PURCHASE OF LAND THAN DISCLOSED IN THE SALE DEE DS. (K) THE SELLER AND THE JOINT PURCHASERS HAVE CONFIRMED THE AMOUNT OF PURCHASE AS MENTIONED IN THE SALE DEEDS. (L) IT IS COMMON KNOWLEDGE THAT BEFORE THE DEALS ARE FI NALIZED IN THE PURCHASE OR SALE OF LAND SEVERAL STAGES ARE PASSED. DURING THESE STAGES THE PURCHASER DEMAND INITIALLY MORE AMOUNT AND FINA LLY THE DEALS ARE SETTLED AT A LOWER PRICE. SOMETIMES ASSESSEE RECORD S FOR PURPOSES OF MEMORANDUM THE FIRST STAGE WHEN INITIAL PRICES ARE QUOTED. IN THIS CASE THESE PAPERS JUST CONTAIN THE ROUGH IDEAS AND TENTA TIVE PURCHASE PRICE OF LANDS. THE SALE DEEDS CONTAINED THE FINAL PRICE PAID FOR THE PURCHASE OF LAND WHICH STOOD ACCEPTED BY THE STAMP REGISTRAT ION AUTHORITY. 2.10 ON THE OTHER HAND, THE CRUX OF THE ARGUMENTS P UT FORTH ON BEHALF OF THE REVENUE THROUGH LD DR , APART FROM REASONS GIVEN IN THE A.O.S ORDER AND LD CIT(A)S ORDER ARE THAT THIS DOCUMENT A-7/17 WAS FO UND FROM THE HOUSE OF THE ASSESSEE GROUP AND THE ONUS TO EXPLAIN THE SAME LIES ON THE ASSESSEE . THE LD DR PLACED RELIANCE ON THE STATEMENT OF DR. S ETHI, SON OF THE ASSESSEE, WHO HAS MADE SURRENDER OF UNDISCLOSED INC OME BASED ON THIS DOCUMENT DURING HIS STATEMENT RECORDED U/S 132(4) O F THE ACT. 2.11 WE HAVE CAREFULLY CONSIDERED THE FATS OF THIS ISSUE IN THE LIGHT OF OBTAINING CIRCUMSTANCES AD EVIDENCE IN REGARD THERE TO. WE HAVE IT FROM THE 13 FACT THAT THESE PAPERS CAN BE SAFELY CONCLUDED AS DUMB AND DEAF BECAUSE THESE DOCUMENTS DO NOT CONTAIN ANY DATES, NAME OF T HE ASSESSEE, SIGNATURE OF THE ASSESSEE, NOT WRITTEN BY HER ETC IT IS A FACT T HAT THE WRITER OF THESE PAPERS WERE NOT EXAMINED. MOREOVER, THE ASSESSEE WAS NEVER EXAMINED AND CONFRONTED WITH THE IMPUGNED PAPERS/ EVIDENCES. IN OUR CONSIDERED OPINION, NO ASSESSEE CAN BE BOUND BY THE STATEMENT OF ANY OT HER ASSESSEE HOWSOEVER HE OR SHE MAY BE CLOSE OR RELATED TO EACH OTHER. SH E IS NOT BOUND BY THE STATEMENT OF HER SON DR. SETHI RECORDED U/S 132 (4) OF THE ACT. IN SUCH CASE, NO PRESUMPTION U/S 132(4A) IS AVAILABLE AGAINST THI S ASSESSEE. IN THIS REGARD, THE DECISION OF HON'BLE SUPREME COURT IN THE CASE O F P.R. METRANI VS CIT (2006) 287 ITR 209 IS RELEVANT. NO EVIDENCE HAS BEE N BROUGHT ON RECORD THAT MORE MONEY HAD BEEN PAID REGARDING PURCHASE OF TH IS LAND, IN ADDITION TO WHAT HAS BEEN MENTIONED AS SALE CONSIDERATION IN TH E SALE DEED. THE SELLER AND THE CO-PURCHASER HAVE CONFIRMED THE CONSIDERATI ON AS DISCLOSED IN THE SALE DEED. NO ONE CAN DENY THAT BEFORE FINALIZING ANY DEAL, THIS IS A REALITY OF LIFE THAT SOME ROUGH CALCULATIONS ARE DONE AT TH E TIME OF BARGAINING AND SETTLING THE PRICE. IN OUR CONSIDERED OPINION, THER E IS NO SUCH EVIDENCE WHICH CAN BE SAID TO HAVE BEEN FOUND TRUE DURING SEARCH W HICH CAN DISPROVE THE SALE CONSIDERATION MENTIONED IN THE SALE DEED IN QU ESTION. THE ASSESSEE IS AN INDIVIDUAL DERIVES INCOME FROM SALARY, HOUSE PROPER TY, CAPITAL GAIN AND 14 INCOME FROM OTHER SOURCES. SHE PURCHASED A PIECE OF AGRICULTURAL LAND AT VILLAGE BUBAKHEDRA, TEHSIL TIJARA, DISTT ALWAR. THI S LAND WAS JOINTLY PURCHASED WITH SMT PREM LATAA W/O SHRI O.P. GOYAL A ND WAS REGISTERED ON 4-06-2008. A COPY OF THE REGISTERED SALE DEED IS AV AILABLE AT PAPER BOOK PAGES 1 TO 4. HER SHARE IN THIS AND IS WHICH WAS PURCHASED FOR TOTAL CONSIDERATION OF RS. 8,05,300/- WHICH INCLUDED STAM P DUTY EXPENSES ALSO. THE SUB-REGISTRAR HAS NOT DISPUTED OR DOUBTED THE S ALE CONSIDERATION AND HAS REGISTERED THE SAME BY TAKING THE CONSIDERATION AT RS. 7.60 LACS. HER SHARE HAS BEEN DISCLOSED IN HER RETURN. THE COPY OF ANNEX URE A-7/17 IS ENCLOSED AT PAGE 5 OF THE PAPER BOOK. A COPY OF STATEMENT O F DR. DILIP SETHI IS ALSO ENCLOSED AT PAPER BOOK PAGES 11 TO 27. WE HAVE ALSO GONE THROUGH ENTIRE STATEMENTS AND WE HAVE FOUND NO BASIS FOR MAKING SU RRENDER OF INCOME BY DR. SETHI QUA HIS MOTHER. IT SEEMS THAT DR. DILIP S ETHI HAS ALSO BEEN EXAMINED REGARDING ANNEXURE A-7/17 SEIZED FROM THE RESIDENCE OF THE ASSESSEE. THUS, NEITHER THE ASSESSEE NOR HER SON HA S EVER BEEN CONFRONTED WITH THE SEIZED PAPERS. IN OUR CONSIDERED OPINION, THE IMPUGNED ADDITION IS SOLELY BASED ON THE SURRENDER MADE BY DR. DILIP SE THI. BOTH VENDERS OF THE LAND CO-PURCHASER OF THE LAND HAVE SUPPORTED THE VE RSION OF THE ASSESSEE. THEREFORE, IN OUR CONSIDERED OPINION, THE PRESUMPTI ON OF SECTION 132(4) OF THE ACT HAS WRONGLY BEEN APPLIED IN THIS CASE. WHEN THE HON'BLE APEX COURT 15 HAS CLEARLY HELD IN THE CASE OF P.R. METRAN VS CIT (SUPRA) THAT THIS PRESUMPTION IS NOT AVAILABLE FOR THE PURPOSE OF FRA MING OF REGULAR ASSESSMENT. FURTHER, THE A.O. HAS NOT TRIED TO FIND OUT AS TO WHICH IS THE WRITER OF THIS PAPER. IN THIS REGARD, THE DECISION OF HON'BLE DELHI HIGH COURT REPORTED IN THE CASE OF CIT VS S.M. AGARWAL (2007), 293 ITR 43 IS RELEVANT. SURPRISINGLY, THE SELLER OF THIS LAND SHRI SHAKUR S /O SHRI GAFUR HAS NOT BEEN EXAMINED BY THE A.O.. NO ENQUIRY HAS BEEN CONDUCTED FROM THE CO- PURCHASER SMT PREM LATA WHO HAS 50% SHARE IN THE PU RCHASE OF THIS LAND. THUS THE A.O. HAS FAILED TO BRING ANY MATERIAL ON R ECORD EITHER BY WAY OF INVESTIGATION REGARDING SEIZED PAPERS OR BY MAKING POST ENQUIRY TO LINK THE PAPERS WITH THE AFFAIRS OF THE ASSESSEE. THE ITAT J AIPUR BENCH HAS HELD THAT ON THE BASIS OF THE SEIZED PAPER WHICH IS NOT PREPA RED BY THE ASSESSEE AND WHICH APPEARS TO BE DEAF AND DUMB DOCUMENTS, NO AD DITION CAN BE MADE. THE DECISION OF ITAT JAIPUR BENCH REPORTED IN THE C ASE OF DCIT VS RAJENDRA KUMAR SANCHETI, 42 TW 152 (DATED 27-03-2009). SIMIL ARLY, NO ADDITION CAN BE LEGALLY MADE ON THE BASIS OF UN-CORROBORATIVE NO TING ON LOOSE SHEETS/ PAPERS AS HAS BEEN HELD IN THE FOLLOWING DECISIONS. (A) S. GOYAL VS DCIT (2002 77 TTJ 1 (MUM) (B) CHANDRA MOHAN MEHTA VS ACIT (1999) 65 TTJ 327 (PUNE) BANSAL STRIPS (P) LTD. VS ACIT (2006) 100 TTJ 6 65 (DEL) 16 (D) KISHAN CHAND SOBHRAJ MAL (1991) 42 TTJ 423 ( JP LET US MAKE IT CLEAR THAT NO OTHER PERSON CAN MAKE STATEMENT REGARDING OTHER PERSONS WHO IS SEPARATELY ASSESSED TO TAX AND SUCH DECISION CAN NEVER BOUND OTHER ASSESSEE SOLELY ON THAT ADMISSION. THE STATEM ENT DR. DILIP SETH CANNOT BE MADE A BASIS FOR MAKING ADDITION IN HER CASE. M OREOVER, DR. DILIP SETHI HAS ALSO RETRACTED HIS STATEMENT. THE COPY OF LETTE R OF RETRACTION IS AVAILABLE IN THE PAPER BOOK. HE HAS STATED THAT HE WAS NOT AU THORISED TO MAKE ANY STATEMENT ON BEHALF OF HIS MOTHER. OTHERWISE, THERE COULD BE NO OCCASION OR BASIS TO MAKE SURRENDER OF INCOME ON BEHALF OF HIS MOTHER AS NO DOCUMENT WAS AVAILABLE BEFORE HIM AT THAT TIME. IT IS WELL S ETTLED PRINCIPLES OF LAW AS HELD IN THE CASE OF PULLANGUEGOE RUBBER & PRODUCE C O. LTD. VS STATE OF KERALA 91 ITR 18 (SUPREME COURT). IN HIS CASE, IT HAS BEEN ORDAINED BY HON'BLE APEX COURT THAT AN ADMISSION IS EXTREMELY A N IMPORTANT PIECE OF EVIDENCE, IF IT IS MADE BY THE ASSESSEE, BUT IT CAN NOT BE SAID TO BE CONCLUSIVE. IT IS ALWAYS OPEN TO PERSON MAKING ADMISSION TO SHO W THAT THE STATEMENT IS INCORRECT. ANY STATEMENT RECORDED DURING SEARCH IS NOT A PIECE OF EVIDENCE FOUND DURING SEARCH. THEREFORE, NO ADDITION CAN BE MADE ON THE BASIS STATEMENT ALONE. THIS WAS RENDERED BY ITAT JODHUR B ENCH IN THE CASE OF CHITRA DEVI VS ACIT (2002) 77 TTJ 640. WE HAVE ALSO NOTICED THAT 17 CONSIDERATION STATED IN THE SALE DEED REMAINED UNCO NTROVERTED. THEREFORE, IN OUR CONSIDERED OPINION, THIS ADDITION IS BASED ON G UESS WORK AND PRESUMPTION WHICH IS NOT AVAILABLE IN THE GIVEN FAC TS AND CIRCUMSTANCES OF THE CASE. THEREFORE, SUCH AN ADDITION CANNOT BE SUS TAINED IN THE EYES OF LAW. ACCORDINGLY, WE ORDER TO DELETE THE ADDITION MADE B Y THE A.O. AND SUSTAINED THE LD CIT(A). THUS GROUND NO.2 OF THE ASSESSEES APPEAL IS ALLOWED. 2.12 IN GROUND NO.3, THE IMPUGNED ADDITION IS BASED ON ANNEXURE A-7/20 FOUND DURING SEARCH. THE POSITION OF THIS ADDITION IS SIMILAR TO THE ADDITION MADE AS PER PAGEA-7/17 AND WHICH IS SUBJECT MATTER TO GROUND NO. 2 AS ABOVE. THE REASONS FOR MAKING ADDITION AND THE ARGU MENTS OF THE ASSESSEE FOR MAKING DELETION OF ADDITION ARE MUTATIS MUTANDI S IDENTICAL. THIS ADDITION IS SOLELY BASED ON THE STATEMENT RECORDED BY DR. SE THI DURING SEARCH. THEREFORE, WITH SIMILAR REASONING AND WITH THE HELP OF SIMILAR DECISIONS, WE ORDER TO DELETE THE ADDITION OF RS. 12,02,060/- MAD E ON ACCOUNT OF ALLEGED UNDISCLOSED INVESTMENT IN THE LAND AT MILKPUR. THE LAND WAS PURCHASED AND THE SAME WAS REGISTERED ON 20-08-2008. A COPY OF TH E REGISTERED SALE DEED IS AVAILABLE AT PAGE 28 TO 31 OF PAPER BOOK. AS PER S ALE DEED, THE TOTAL LAND WAS PURCHASED FOR A CONSIDERATION OF RS. 8.04 LACS. THE SUB-REGISTRAR HAS ALSO ACCEPTED THE SALE CONSIDERATION WITHOUT DISPUT ING THE SAME. PAGE A-7/20 WAS SEIZED FROM THE RESIDENCE OF THE ASSESSEE WHICH IS ROUGH NOTINGS AND 18 COPY OF WHICH IS AVAILABLE AT PAGE 32 OF THE PAPER BOOK. LIKEWISE ON THE BASIS OF THE STATEMENT OF DR. SETHI WITHOUT REFERR ING AND CONFRONTING THIS PAGE TO HIM AND WITHOUT HAVING AUTHORITY TO MAKE AN Y STATEMENT ON HER BEHALF , THE IMPUGNED ADDITION IS BASED ON PRESUMPT ION ARISING SOLELY FROM RETRACTED STATEMENT OF DR. DILIP SETHI. THE OTHER R EASONS GIVEN WITH REGARD TO PURCHASE OF LAND AT VILLAGE BUBKAHEDA WOULD APPLY T O THIS ISSUE. ACCORDINGLY, WE ORDER TO DELETE THE ADDITION OF RS. 12,02,060/- FROM HER HANDS AND ALLOW THE GROUND NO 3 OF THE ASSESSEE. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTL Y ALLOWED. ITA NO.956/JP/2012 A.Y. 2008-09 (SHRI JAGDISH PR ASAD SETHI) 3.1 THIS APPEAL HAS BEEN FILED BY SHRI JAGDISH PRAS AD FOR THE A.Y. 2008- 09 WHEREIN FOLLOWING GROUNDS HAVE BEEN RAISED. 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE , THE ORDER PASSED BY THE LD CIT(A) IS ILLEGAL AND VOID AB-IN ITO. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LD CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS .19,46,747/- ON ACCOUNT OF ALLEGED UNDISCLOSED INVESTMENT IN L AND AT DHIRIYABAS (A). 3. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS . 7,70,063/- ON ACCOUNT OF ALLEGED UNDISCLOSED INVESTMENT IN L AND AT DHIRIYABAS (B). 19 4. THE ASSESSEE CRAVES YOUR INDULGENCE TO ADD AME ND OR ALTER ALL OR ANY GROUNDS OF APPEAL BEFORE OR AT T HE TIME OF HEARING. 3.2 WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE CA REFULLY PERUSED THE ENTIRE MATERIAL ON RECORD INCLUDING WRITTEN SUBMISS IONS / PAPER BOOK FILED BEFORE US. AT THE TIME OF HEARING, THE LD. AR OF TH E ASSESSEE HAS NOT PRESSED THE GROUND 1. THEREFORE, THE GROUND 1 OF THE ASSESS EE IS DISMISSED BEING NOT PRESSED. THE GROUND NO. 4 OF THE ASSESSEE IS GENERA L IN NATURE WHICH DOES NOT REQUIRE ANY ADJUDICATION. 3.3 NOW WE TAKE UP THE GROUND NO. 2 AND 3 OF THE AS SESSEE WHICH ARE AS UNDER:- 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LD CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS .19,46,747/- ON ACCOUNT OF ALLEGED UNDISCLOSED INVESTMENT IN L AND AT DHIRIYABAS (A). 3. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS . 7,70,063/- ON ACCOUNT OF ALLEGED UNDISCLOSED INVESTMENT IN L AND AT DHIRIYABAS (B). 3.4 BRIEFLY STATED, THE FACTS ARE THAT DURING SEARC H, A DOCUMENT SEIZED AT A-7/15 WAS FOUND FROM THE HOUSE SITUATED AT HOUSE N O. 153, LAJPAT NAGAR, ALWAR. THIS DOCUMENT CONTAINS CERTAIN TRANSACTIONS ON ITS FRONT AND REVERSE SIDES REGARDING INVESTMENT IN / PURCHASE OF LAND AT VILLAGE DHIRIYABAS, TEHSIL 20 TIJARA, ALWAR IN WHICH THE ASSESSEE NAMELY SHRI JAG DISH PRASAD SETHI HELD 50% SHARES. ACCORDING TO THIS DOCUMENT, AN AMOUNT O F RS. 63,07,404/- HAS BEEN PAID AS CONSIDERATION. DR. DILIP SETHI MADE SU RRENDER OF THIS AMOUNT IN HIS STATEMENT. THE CASE OF THE ASSESSEE IN REGARD TO THIS PAGE IS AS UNDER:- (I) THE ASSESSEE HAS PURCHASED AGRICULTURE LAND A T VILLAGE DHARYABAS SUB TEHSIL TAPUKADA, ALWAR (HALF SHARE) FOR RS. 1252000/- (114 0000 + 112000) IN CO-OWNERSHIP WITH MR. GHANSHYAM DASS AGARWAL DURING THE A.Y. 200 8-09. THIS INVESTMENT HAS BEEN DULY DISCLOSED IN THE INCOME TAX RETURN AND BALANCE SHEET OF THE ASSESSEE FILED WITH THE INCOME TAX OFFICE. THE COPY OF ACCOUNT OF SUCH INV ESTMENT OF LAND, EVIDENCE OF SOURCE OF INVESTMENT OF RS. 1252000/-, INCOME TAX RETURN, BAL ANCE SHEET AND SALE DEED IS ENCLOSED. (II) SO FAR AS, THE SEIZED DOCUMENT AS PER PAGE NO. 15 OF ANNEXURE A-7 IS CONCERNED, IT CONTAINS CERTAIN CALCULATION IN RESPECT OF ABOVE LA ND. THIS CALCULATION IS MADE BY TAKING THE LAND RATE AT RS. 16.14 LACS PER BIGHA AND AFTER INCLUDING THE EXPENSES THE TOTAL VALUE OF THE LAND IS ARRIVED AT RS. 6397494/-. THE CALCULAT ION ON THIS PAPER IS PRESUMED BY YOUR GOODSELF AS THE COST OF THE SAID LAND AND CONSIDERI NG OF THE ASSESSEE SHARE AND THE RECORDED PAYMENT OF RS. 1140000/- IT IS PROPOSED TO MAKE ADDITION OF RS. 2058757/- (1/2 OF 6397494 1140000) AS UNEXPLAINED INVESTMENT. T HIS PRESUMPTION IS INCORRECT FOR THE FOLLOWING REASONS:- (A) THE PAPERS NOWHERE REFLECT/INDICATE ANY PAYMENT. I T ONLY CONTAINS SOME CALCULATION BY TAKING LAND RATE OF RS. 16.41 LACS PER BIGHA. I N SEARCH NO EVIDENCE, AGREEMENT OR ANY RECEIPT OR PAYMENT OF ANY UNEXPLAINED INVESTMEN T WAS FOUND IN RESPECT OF THIS LAND. THEREFORE, THE AMOUNT WRITTEN ON THIS PAPER CANNOT BE CONSIDERED AS PAYMENT OF EXTRA CONSIDERATION TOWARDS THE PURCHASE OF SAID LAND. (B) THE PAPER IS DATED 04/06/2008 WHEREAS THE SAID LAND WAS PURCHASED ON 16/01/2008. THE ASSESSEE PURCHASED THIS LAND @ RS. 6 LACS PER B IGHA WHEREAS THE CALCULATION MADE ON THIS PAPER ON 04/06/2008 IS @ 16.41 LACS PE R BIGHA. THEREFORE, IN THE ABSENCE OF ANY REFERENCE OF PAYMENT ON THIS PAPER I T CANNOT BE PRESUMED AS RELATABLE TO THE PURCHASE COST OF THIS LAND. (C) ON THIS PAPER THE TOTAL VALUE OF RS. 6397494/- IS D IVIDED BY TWO GIVING AN AMOUNT OF RS. 3198750/-. AFTER THIS FOUR AMOUNT OF RS. 29487 50/-, RS. 1808750/-, RS. 73750/-, RS. 45750/- IS MENTIONED. NEITHER THE AGGREGATE OF THESE AMOUNTS NOR ANY PERMUTATION OR COMBINATION OF THESE AMOUNTS TALLY W ITH THE AMOUNT OF RS. 6397494/- OR RS. 3198750/-. THEREFORE, THE AMOUNT RECORDED I N THIS PAPER CANNOT BE PRESUMED TO BE THE ACTUAL COST OF THE LAND. (D) IN FACT, SINCE THE ASSESSEE WAS CO-OWNER OF THIS LAND AND HE WANTED TO PART WITH HIS SHARE, HIS SON DR. DILLIP SETHI MADE OUT THIS C ALCULATION ON 04/06/2008 WHEREBY TAKING THE LAND VALUE AT RS. 16.14 LACS PER BIGHA A ND INCLUDING THEREIN THE COST OF 21 REGISTRATION AND OTHER EXPENSES, TOTAL VALUE OF THE LAND WAS DETERMINED AT RS. 6397494/- AND THE SHARE OF HIS FATHER WAS WORKED OU T AS RS. 3198750/-. THEN HE FURTHER NOTED THE FIGURE OF RS. 2948750/- AND RS. 1 808750/- WHICH IS THE VALUE EXPECTED BY HIM ON DISPOSAL OF HE HALF SHARE OF HIS FATHER. THE FIGURE OF RS. 73750/- IS ESTIMATED TOWARDS THE EXPENSES AND THE FIGURE OF RS. 45750/- IS TOWARDS THE DIFFERENTIAL VALUE OF LAND. THUS THE PAPER IS ONLY AN ESTIMATE OF THE REALIZABLE VALUE OF THE LAND AND NOT RELATABLE TO THE COST OF ACQUIS ITION OF THE LAND. (E) IT MAY BE NOTED THAT THIS PROPERTY WAS PURCHASED WI TH CO-OWNERSHIP MR. GHANSHYAM DASS AGARWAL. THE AFFIDAVIT OF MR. GHANSHYAM DASS AGARWAL REGARDING THE COST OF ACQUISITION OF THIS LAND IS ENCLOSED. INDEPENDENT ENQUIRY MAY BE MADE FROM HIM TO ASCERTAIN THE ACTUAL COST OF THIS LAND. (F) DURING THE COURSE OF SEARCH, THE SON OF THE ASSESSE E DR. DILIP SETHI MADE SURRENDER OF RS. 1942000/- IN RESPECT OF THIS LAND IN REPLY TO Q NO. 18 OF HIS STATEMENT DATED 09/10/2009 U/S 132(4). THIS STATEMENT WAS GIVEN BY HIM UNDER DURESS, PRESSURE AND TENSION AND THEREFORE, HE SUBSEQUENTLY RETRACTED FR OM SUCH SURRENDER VIDE LETTER DATED 31/05/2010 FILED BEFORE ADIT, JAIPUR. COPY OF THIS LETTER WAS ALSO FILED WITH THE RETURN. AFFIDAVIT OF THE ASSESSEE WAS ALSO FILED. COPY OF THE LETTER AND AFFIDAVIT IS AGAIN ENCLOSED. OTHERWISE ALSO DR. DILIP SETHI, SO N OF THE ASSESSEE HAS NO LOCUS STANDI TO MAKE THE SURRENDER ON BEHALF OF THE ASSES SEE AS ASSESSEE IS INDEPENDENT INCOME TAX ASSESSEE SINCE, LAST 20 YEARS. NO CONFO RMATION OF THE ASSESSEE REGARDING THIS SURRENDER WAS OBTAINED AT THE TIME OF SEARCH. IN THESE CIRCUMSTANCES, ONLY ON THE BASIS OF STATEMENT OF DR. DILIP SETHI, NO ADVERSE I NFERENCE CAN BE DRAWN AGAINST THE ASSESSEE. (G) IT IS PERTINENT TO NOTE THAT DESPITE OF FILING THE LETTER OF RETRACTION BY THE SON OF THE ASSESSEE, NO INDEPENDENT ENQUIRY WAS MADE FROM THE SELLER OF THE LAND. HENCE IN THE ABSENCE OF ANY MATERIAL AS TO ANY UNRECORDED INVEST MENT IN PURCHASE OF THE LAND, NO ADVERSE INFERENCE CAN BE DRAWN. THE INVESTMENT IN LAND IS AT DHIRIYABAS (B) AS PER SEIZED DOCUMENT A-7/15. THIS ADDITION IS ALSO BASED ON THE DOCUMENT SEIZED A-7/15R I.E. FRONT SIDE OF THE PAPER. THE SUBMISSIONS OF THE ASSESSEE ARE ALSO SAME AND SIMILAR. 3.5 BEFORE US, THE ARGUMENTS FROM BOTH SIDES ARE IN THE SAME MANNER AS WERE IN THE CASE OF SMT. KAMLA SETHI. THEREFORE, WI TH THE SIMILAR REASONINGS, AS WE HAVE GIVEN THE DECISION IN SMT. KAMLA SETHI CASE, THE SAME SHALL 22 APPLY MUTATIS MUTANDIS. THUS WE ORDER TO DELETE BOT H THESE ADDITIONS. ACCORDINGLY, WE ALLOW THE GROUND NO 2 AND 3 OF THE ASSESSEE. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTL Y ALLOWED. ITA NO 886/JP/2013 A.Y. 2009-10(SMT SUDHA SETHI) 4.1 THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD CIT(A)-ALWAR DATED 17-10-1013 FOR THE A.Y. 2009-10 BY RAISING THE FOLLOWING GROUNDS:- 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CAS E, THE LD CIT(A) HAS ERRED IN CONFIRMING THE ADDITION ON AC COUNT OF UNDISCLOSED INVESTMENT OF RS. 15,46,800/- IN AN A T LADMAA WHICH IS UNLAWFUL AND UNJUSTIFIED. 2. THE ASSESSEE CRAVES YOUR INDULGENCE TO ADD AME ND OR ALTER ALL OUR ANY GROUNDS OF APPEAL BEFORE OR AT THE TIME O F HEARING. 4.2 WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE CA REFULLY PERUSED THE ENTIRE MATERIAL ON RECORD THE BRIEF FACTS OF THE C ASE ARE THAT DURING THE SEARCH A DOCUMENT A-7/16 WAS FOUND AND COPY OF THIS DOCUMENT IS AVAILABLE IN THE PAPER BOOK. THE CONDITION OF THIS DOCUMENT I S SIMILAR TO OTHER PAPERS AS DISCUSSED ABOVE. THE ASSESSEE HAD PURCHASED A PI ECE OF LAND IN THE VILLAGE LADMAMA, TEHSIL TIJARA, DISTT. ALWAR. THE LAND WAS REGISTERED ON 23-06- 2008. A COPY OF REGISTERED SALE DEED IS AVAILABLE A T PAGES 1 TO 3 OF THE ASSESSEES PAPER BOOK. AS PER THIS REGISTERED SALE DEED, THE SALE CONSIDERATION IS RS. 4,23,200/- INCLUDING THE STAM P DUTY EXPENSES ETC. ON 23 THE BASIS OF THE ROUGH NOTINGS AD STATEMENT OF DR. DILIP SETHI RECORDED AS ABOVE, THE IMPUGNED ADDITION HAS BEEN MADE AT RS. 1 5,46,800/-. THE CONDITIONS OF THESE PAPERS, ARGUMENTS OF THE PARTIE S AND REASONS FOR ADDITION ARE SAME AND SIMILAR AS IN THE ABOVE CASES. THIS AD DITION IS ALSO BASED ON THE RETRACTION OF THE ADMISSION BY DR. DILIP SETHI. THE REFORE, WITH SIMILAR REASONING, WE ORDER TO DELETE THE ADDITION AND ALLO W THE SOLITARY GROUND TAKEN BY THE ASSESSEE IN THIS APPEAL. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED. ITA NO 11/JP/2013 A.Y. 2010-11(SHRI DILIP SETHI) 5.1 THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD CIT(A)-CENTRAL , JAIPUR DATED 30-11-1013 FOR THE A .Y. 2010-11 BY RAISING THE FOLLOWING GROUNDS:- 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE , THE ORDER PASSED BY THE LD CIT(A) IS ILLEGAL AND VOID AB-IN ITO. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CAS E, THE LD LD CIT(A) HAS ERRED IN CONFIRMING THE CHARGING OF I NTEREST U/S 234B RS. 5,01,988/- AND U/S 234C RS. 83,004/- ON ACCOUNT OF NON-CONSIDERING THE AMOUNT SEIZED RS. 28,50,000/- DURING SEARCH DATED 8-10-2009 AS ADVANCE TAX DESPITE THE FACT, APPLICATION FOR ADJUSTMENT OF SEIZED AMOUNT AS AD VANCE TAX WAS MADE WITHIN DUE TIME. 3. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD CIT(A) HAS ERRED IN CONFIRMING THE DISALLOWANCE O F CLAIM OF BAD DEBT OF RS. 4,25,300/- WHICH HAS RESULTED IN ADDITION OF RS. 4,25,300/-. 24 4. THE ASSESSEE CRAVES YOUR INDULGENCE TO ADD AME ND OR ALTER ALL OUR ANY GROUNDS OF APPEAL BEFORE OR AT THE TIME O F HEARING. 5.2 WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE CA REFULLY PERUSED THE ENTIRE MATERIAL ON RECORD. DURING THE COURSE OF HE ARING, THE LD. AR OF THE ASSESSEE HAS NOT PRESSED THE GROUND 1 AND 3. THEREF ORE, THE GROUND 1 AND 3 ARE DISMISSED BEING NOT PRESSED. 5.3 THE GROUND NO. 4 OF THE ASSESSEE IS GENERAL IN NATURE WHICH DOES NOT REQUIRE ANY ADJUDICATION. 5.4 THE ONLY GROUND WHICH SURVIVES FOR ADJUDICATION IS GROUND NO. 2. THE FACTS APROPOS TO THIS GROUND ARE THAT THE ASSES SEE IS AN INDIVIDUAL AND DERIVES INCOME FROM HOUSE PROPERTY, BUSINESS/ PROFE SSION AND OTHER SOURCES. CONSEQUENT UPON SEARCH CONDUCTED ON 08-10-2009. THE RETURN WAS FILED ON 26-09-2010 DECLARING TOTAL INCOME OF RS. 1,41,84,08 0/- INCLUDING INCOME SURRENDERED DURING THE COURSE OF SEARCH AT RS. 76,4 6,300/-. THE A.O. COMPLETED THE ASSESSMENT U/S 143(3) OF THE ACT ON 2 6-12-2011 AT A TOTAL INCOME AT RS. 1,46,09,380/- BY MAKING ADDITION OF R S. 4,25,300/- AND CHARGED INTEREST OF RS. 5,01,998/- U/S 234B AND RS. 83,004/- U/S 234C OF THE ACT ON ACCOUNT OF NON-CONSIDERING THE AMOUNT SEIZED DURING SEARCH AT RS. 28,50,000/- ON 8-10-2009 AS ADVANCE TAX DESPITE THE FACT, THE ASSESSEE REQUESTED IN WRITING FOR MAKING ADJUSTMENT OF SEIZE D AMOUNT TOWARDS 25 ADVANCE TAX AND THIS APPLICATION WAS MADE WITHIN DU E TIME. SINCE THE ASSESSEE HAS NOT PRESSED THE ADDITION OF RS4,25,300 /- AND HAS HONOURED THE SURRENDER, THE ONLY DISPUTE REMAINS IN THIS APPEAL IS REGARDING CHARGING OF INTEREST AS ABOVE. WE WOULD LIKE TO EXTRACT THE FOL LOWING SUBMISSIONS MADE BY THE ASSESSEE BEFORE THE LOWER AUTHORITIES AS WEL L AS BEFORE US. ' IT IS SUBMITTED THAT IN THE CASE OF THE ASSESSEE DU RING THE COURSE OF SEARCH CONDUCTED ON 08.10.2009 CASH OF RS. 28,50,000/- WAS SEIZED. A COPY OF SEIZURE MEMO IS AVAILABLE ON PAPER BOOK PAGE NO. 1. THE ASSESSEE FURNISH RETURN OF INCOME ON 26.09.2010 SURRENDERING INCOME OF RS. 76,46,300/-. IN THE COMPUTATION OF INCOME ENCLOSED WITH THE RETURN OF INCOME THE ASSESSEE CLAIMED THAT CASH SEIZED OF RS. 28,00,000/- SHOULD BE GIVEN CREDIT AS PAYMENT OF ADVANCE TAX. A COPY OF THE ACKNOWLEDGEME NT OF RETURN FILED ON 26.09.2010 ALONG WITH COMPUTATION OF INCOME IS AVAI LABLE ON PAPER BOOK PAGE NO. 2 TO 6. HOWEVER ON NOTICING THAT THE SEIZE D AMOUNT OF CASH WAS 28.50 LACS, AND NOT RS. 28 LACS THE RETURN WAS REVI SED ON 17.07.2011. A COPY OF THE ACKNOWLEDGEMENT OF RETURN FILED ON 17.0 7.2011 ALONG WITH COMPUTATION OF INCOME IS AVAILABLE ON PAPER BOOK PA GE NO. 7 TO 11. IN THE COMPUTATION OF INCOME FILED ALONG WITH THIS RETURN THE ASSESSEE HAD CLAIMED PAYMENT OF ADVANCE TAX OF RS. 28,50,000/- WHICH WAS SEIZED BY THE DEPARTMENT DURING THE COURSE OF SEARCH CONDUCTED ON 08.10.2009. FURTHER BEFORE THE COMPLETION OF ASSESSMENT PROCEEDINGS THE ASSESSEE HAD FURNISHED A DETAILED SUBMISSION UNDER LETTER DATED 28.11.2011 WHEREIN REQUEST WAS MADE TO THE ASSISTANT COMMISSIONER OF INCOME TAX (C PC), BANGLORE FOR ALLOWING CREDIT OF RS. 28,50,000/- WHICH WAS NOT DO NE BY THE REVENUE BY PROCEEDING THE RETURN U/S 143(1). A COPY OF THIS LE TTER IS AVAILABLE ON PAPER BOOK PAGE NO. 12 TO 13. THE BE ALL AND END ALL OF THE AFORESAID SUBMISSION WAS THAT ALL ALONG BEFORE THE COMPLETION OF ASSESSM ENT THE ASSESSEE HAS BEEN PLEDGING WITH THE DEPARTMENT THAT CASH SEIZED SHOUL D BE APPROPRIATED AS 26 ADVANCE TAX/ TAX AGAINST THE INCOME SURRENDERED BY THE ASSESSEE. THE ASSESSEE HAD ALSO MADE A REQUEST TO CIT-CENTRAL UND ER LETTER DATED 31.05.2010 TO APPROPRIATE THE SEIZED AMOUNT FROM PD A/C TOWARDS TAX LIABILITY OF THE ASSESSEE AS INSTALLMENT OF ADVANCE TAX. A COPY OF LETTER DATED 31.05.2010 IS AVAILABLE ON PAPER BOOK PAGE NO. 14 T O 15. HOWEVER, THE LEARNED ASSESSING OFFICER ASSESSING OF FICER HAS NOT TAKEN COGNIZANCE OF AFORESAID FACTS AND HAS CHARGED INTER EST OF RS. 5,01,988/- U/S 234B AND RS. 83,004/- U/S 234C. HAD THE LEARNED ASS ESSING OFFICER TAKEN COGNIZANCE OF THE FACT THAT AMOUNT OF RS. 28,50,000 /- SEIZED BY THE DEPARTMENT DURING THE COURSE OF SEARCH WAS CONTINUO USLY LYING WITH THE DEPARTMENT AND SAME SHOULD HAVE BEEN APPROPRIATED A GAINST THE DEMAND ARISING ON ACCOUNT OF FILING OF RETURN. THE CASH WA S SEIZED ON 08.10.2009, THEREFORE THE SAME COULD WELL BE TREATED AS ADVANCE TAX INSTALLMENT OF 15.12.2009. HAD THIS BEEN DONE THERE WOULD HAVE BEE N NO LIABILITY OF INTEREST CHARGED U/S 234B AND 234C. IT IS FURTHER SUBMITTED THAT THE BOARD'S INSTRUCTIO N NO. 11 OF 2006 DATED 01.12.2006 CLEARLY STIPULATES THAT THE CASH AMOUNT LYING IN PD A/C SHOULD BE ADJUSTED AGAINST ANY EXISTING LIABILITY/ AMOUNT OF LIABILITY DETERMINED ON COMPLETION OF THE SEARCH AND SEIZURE ASSESSMENT. A COPY OF THE INSTRUCTION IS AVAILABLE ON PAPER BOOK PAGE NO. 16 TO 17. THE PROVISIONS OF SECTION 132B(1)(I) WHICH DEALS WI TH APPLICATION OF SEIZED OR REQUISITIONED ASSETS READS AS UNDER '[ APPLICATION OF SEIZED OR REQUISITIONED ASSETS 40 . 132B. (1) THE ASSETS SEIZED UNDER SECTION 132 OR REQUISITIONED UNDER SECTION 132A MAY BE DEALT WITH IN THE FOLLOWING MANNER, NAMELY: THE AMOUNT OF ANY EXISTING LIABILITY UNDER THIS ACT , THE WEALTH-TAX ACT, 1957 (27 OF 1957), THE EXPENDITURE-TAX ACT, 1987 (35 OF 1987 ), THE GIFT-TAX ACT, 1958 (18 OF 27 1958) AND THE INTEREST-TAX ACT, 1974 (45 OF 1974), AND THE AMOUNT OF THE LIABILITY DETERMINED ON COMPLETION OF THE ASSESSMENT 41 [UNDER SECTION 153A AND THE ASSESSMENT OF THE YEAR RELEVANT TO THE PREVIOUS YEA R IN WHICH SEARCH IS INITIATED OR REQUISITION IS MADE, OR THE AMOUNT OF LIABILITY DET ERMINED ON COMPLETION OF THE ASSESSMENT UNDER CHAPTER XIV-B FOR THE BLOCK PERIOD , AS THE CASE MAY BE] (INCLUDING ANY PENALTY LEVIED OR INTEREST PAYABLE I N CONNECTION WITH SUCH ASSESSMENT) AND IN RESPECT OF WHICH SUCH PERSON IS IN DEFAULT OR IS DEEMED TO BE IN DEFAULT, MAY BE RECOVERED OUT OF SUCH ASSETS: THE AFORESAID PROVISION CLEARLY STIPULATES THAT OUT OF THE SEIZED CASH THE LEARNED ASSESSING OFFICER SHOULD HAVE RECOVERED THE LIABILITY OF INCOME TAX FOR WHICH THE ASSESSEE WAS IN DEFAULT. IT IS SUBMIT TED THAT DURING THE COURSE OF SEARCH CONDUCTED ON 08.10.2009 THE ASSESSEE HAD SURRENDERED INCOME OUT OF UNDISCLOSED SOURCES AND AS SUCH WAS LIABLE TO PA Y ADVANCE TAX IMMEDIATELY ON SUCH INCOME. IN VIEW OF THIS THE SEI ZED CASH REQUIRE TO BE APPROPRIATED AGAINST THE ADVANCE TAX FOR WHICH THE ASSESSEE BECAME IN DEFAULT. THERE CAN BE NO DENIAL OF THE FACT THAT AD VANCE TAX LIABILITY IS AUTOMATIC AND IS NOT DEPENDENT UPON PASSING OF ANY ORDER IN VIEW OF THE MANDATORY PROVISIONS OF SECTION 207. MOREOVER, THE MONEY RELEASED FOR PAYMENT OF ADVANCE TAX DOES NOT GO OUT OF THE DEPAR TMENT; RATHER, IT STANDS APPROPRIATED TOWARDS TAX LIABILITY WHICH HAS BEEN F OUND AS A RESULT OF THE SEARCH AND SEIZURE. THE FOLLOWING CASE LAWS ARE QUO TED IN SUPPORT (I) CIT VS. PANDURANG DAYARAM TALMALE (2004) 187 CTR 62 5 INTEREST UNDER SS. 234A, 234B AND 234CCHARGEABILIT YADJUSTMENT OF SEIZED CASH TOWARDS ADVANCE TAX LIABILITYOCCASI ON TO REFUND OR RETURN THE ASSETS OR TO RETAIN THE ASSETS OR TO ADJ UST THE ASSETS COMES ONLY AFTER A FINAL ORDER IS MADE BY ITO UNDER SUB-S . (5) OF S. 132SO LONG AS A FINAL ORDER IS NOT PASSED AND THE ITO REC ORDS A FINDING THAT THE ASSETS IN HIS POSSESSION OR PART THEREOF ARE SU FFICIENT TO SATISFY THE AGGREGATE OF THE AMOUNTS REFERRED TO IN CLS. (II), (IIA) AND (III) OF SUB-S. 28 (5) OF S. 132, HE CANNOT DIRECT RELEASE OF THE REMA INING PORTION NOR CAN HE DIRECT THAT THE ASSETS SEIZED BE ADJUSTED TO WARDS ADVANCE TAX IN THE INSTANT CASE, ORDER WAS PASSED UNDER S. 132( 5) BY THE ITO ON 30TH MARCH, 1990, AND SURPLUS CASH WAS FOUND IN HIS HANDS SUCH SURPLUS FUNDS WERE AVAILABLE TO SATISFY THE LIABILI TY OF ADVANCE TAX PAYABLE BY THE ASSESSEELIABILITY TO PAY INTEREST O N THE ADVANCE TAX FOR THE RELEVANT ASST. YR. 1990- 91 WAS TO RUN FROM 1ST APRIL, 1990 THEREFORE, NO INTEREST WAS CHARGEABLE. (II) CIT VS. KESR KIMAM KARYALAYA (2005) 278 ITR 596 (DE L) INTEREST UNDER SS. 234B AND 234CCHARGEABILITYADJU STMENT OF SEIZED CASH TOWARDS ADVANCE TAX LIABILITYOFFER FOR ADJUSTMENT OF SEIZED CASH WAS MADE BY THE ASSESSEES BEFORE THE AD VANCE TAX LIABILITY BECAME DUE AND THEREFORE SAME COULD BE ADJUSTED AGA INST ADVANCE TAX LIABILITYFURTHER, TRIBUNAL RIGHTLY HELD THAT THERE IS NO DIFFERENCE BETWEEN A FIRM AND ITS PARTNERS INSOFAR AS ADJUSTME NT OF SEIZED CASH AGAINST THE LIABILITY OF THE FIRM IS CONCERNEDREQU ESTS MADE BY THE PARTNERS WERE BINDING ON THE ASSESSEE-FIRMS AND THE RE WAS NO GROUND FOR REJECTING SUCH A REQUESTSINCE THERE WAS NOTHIN G TO PROHIBIT THE ASSESSEES FROM MAKING SUCH A REQUEST, THE CASH AMOU NT OUGHT TO HAVE BEEN ADJUSTED AS PRAYEDNO SUBSTANTIAL QUESTION OF LAW ARISES. (III) VISHWANATH KHANNA VS. UNION OF INDIA & ORS. (2011) 335 ITR 548 DEPARTMENT WOULD NOT BE JUSTIFIED IN LEVYING INTERE ST UNDER SS. 234B AND 234C, AS THE AMOUNT OF ADVANCE TAX PAYABLE BY T HE PETITIONER ASSESSEE FOR RELEVANT ASSESSMENT YEARS COULD BE ADJ USTED FROM THE AMOUNT LYING WITH THE DEPARTMENT IN THE PETITIONER S OWN ACCOUNT CONSEQUENT TO SEARCH AND SEIZURE OPERATION. 29 IN VIEW OF THE AFORESAID FACTS THE LEARNED ASSESSIN G OFFICER ERRED IN CHARGING INTEREST U/S 234B AND 234C. THE ACTION OF THE LEARNED ASSESSING OFFICER DESERVES TO BE QUASHED.' 5.5 FROM THE ABOVE, IT BECOMES EVIDENTLY CLEAR THAT THE CASH WAS SEIZED DURING SEARCH AND THE ASSESSEE MADE A WRITTEN REQUE ST TO ADJUST THE SEIZED AMOUNT TOWARDS HIS TAX LIABILITY INCLUDING THE ADVA NCE TAX AND THIS REQUEST WAS MADE WITHIN TIME. WE HAVE GONE THROUGH THE WRIT TEN SUBMISSIONS AND HAVE FOUND THAT BEFORE COMPLETION OF THE ASSESSMENT , THE ASSESSEE HAD FURNISHED DETAILED SUBMISSIONS VIDE LETTER DATED 28 -11-2011 REQUESTING THE ACIT (CCP), BANGALORE FOR ALLOWING CREDIT OF RS. 28 ,50,000/- AS PAYMENT OF ADVANCE TAX. ALL THESE PAPERS ARE AVAILABLE IN THE PAPER BOOK FILED BEFORE US. IT IS A SETTLED LAW BY NOW THAT THE SEIZED CASH CAN BE ADJUSTED TOWARDS ADVANCE TAX LIABILITY IF SUCH A REQUEST IS MADE FR OM THE SIDE OF THE ASSESSEE. THE DECISION OF HON'BLE DELHI HIGH COURT APART FROM OTHERS RELIED ON BY THE LD. AR IS APPURTENANT TO BE NOTED DOWN IN THE CASE OF CIT VS KESER KIMAM KARYALAYA (2005), 278 ITR 596 (DEL.). THEIR LORDSHI PS CLEARLY HELD THAT WHEN A REQUEST IS MADE FOR ADJUSTMENT OF SEIZED CA SH TOWARDS ADVANCE TAX LIABILITY THEN SUCH A REQUEST IS BINDING AND, THERE FORE, CANNOT BE ANY GROUND FOR REJECTING THE SAME. ACCORDINGLY, BY FOLLOWING T HE ABOVE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS KESA R KIMAM KARYALA (SUPRA) AND OTHER DECISIONS MENTIONED IN THE SUBMIS SIONS OF THE ASSESSEE, WE 30 HOLD THAT NO SUCH INTEREST IS FURTHER CHARGEABLE AN D IT HAS TO BE ADJUSTED OUT OF THE SEIZED CASH. ACCORDINGLY, WE ALLOW THE GROUN D NO 2 OF THE ASSESSEES APPEAL. THUS THE APPEAL OF THE ASSESSEE IS PARTLY A LLOWED. 6.0 IN THE RESULT, THE APPEALS OF THE ASSESSEE NAME LY SMT. KAMLA DEVI (ITA NO.955/JP/2012), SHRI JAGDISH PRASAD SETHI (IT A NO.956/JP/2012), SHRI DILIP SETHI (ITA NO11/JP/2013) ARE PARTLY ALLO WED AND THE APPEAL OF SMT SUDHA SETHI (ITA NO.886/JP/2013) IS ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 05-0 3-2014 SD/- SD/- ( N.K. SAINI ) (HARI OM MARATHA ) ACCOUNTANT MEMBER JUDICIAL MEMBER *MISHRA COPY FORWARDED TO :- 1. SMT KAMLA SETHI, ALWAR 2. SHRI JAGDISH PRASAD SETHI, ALWAR 3. SMT. SUDHA SETHI, ALWAR 4. DR. DILIP SETHI, ALWAR 3. THE LD.CIT(A) , JAIPUR / LD CIT(A) ALWAR 4. THE LD CIT 5. THE D/R 6. GUARD FILE (ITA NO.955/JP/2012) BY ORDER, AR ITAT, JAIPUR 31 32