DHANVINDER SINGH BINDRA, MUMBAI V. ACIT CEN CIR 24 & 26, MUMBAI

ITA 979/MUM/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2092 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 23-09-2015
• Assessment Year: 2002-2003
• Appeal Filed On: 05-02-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained investment; Value adopted by valuation officer; Gift; Income from undisclosed sources; Search and seizure; Loose papers; Opportunity of being heard; Question of law; Retraction
• Section: 143(3); 153A; 234B; 131; 68; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI A BENCH, MUMBAI BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA. NO. 2462-2463/MUM/2012 (ASSESSMENT YEAR: 2002-03 & 20004-05) ITA. NO. 2465 TO 2467/MUM/2012 (ASSESSMENT YEAR: 2006-07, 2007-08 & 2003-04) & ITA. NO. 581/MUM/2013 (ASSESSMENT YEAR: 2008-09) SHRI. LAKHMICHAND D. ROHIRA 2301, DHEERAJ HEIGHT GAURAV, OFF, OSHIWARA LINK ROAD, ASSESSEE MUMBAI 400 058 PAN: ADNPR 6420 M VS. ACIT-CENTRAL CIRCLE 24 &26 4 TH FLR, AYAKAR BHAVAN, M.K. ROAD, REVENUE MUMBAI 400 020. ITA. NO. 2581 TO 2583 ,2585 & 2586/MUM/2012 (ASSESSMENT YEAR: 2002-03 TO 2004-05 ,2006-07 & 20 07-08) ITA. NO. 1044/MUM/2013 (ASSESSMENT YEAR: 2008-09) ACIT-CENTRAL CIRCLE 24 &26 4 TH FLR, AYAKAR BHAVAN, M.K. ROAD, REVENUE MUMBAI 400 020 VS. SHRI. LAKHMICHAND D. ROHIRA 2301, DHEERAJ HEIGHT GAURAV, OFF, OSHIWARA LINK ROAD, ASSESSEE MUMBAI 400 058. PAN: ADNPR 6420 M ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 2 ITA. NO.979/MUM/2013 (ASSESSMENT YEAR: 2002-03 ) ITA. NOS. 980-985/MUM/2013 (ASSESSMENT YEAR: 2003-04 TO 2008-09) SHRI. DHANVINDER SINGH BINDRA C/O. R. SANGHVI & CO, 104, RIZVI CHAMBERS,-2, JAIN MANDIR MARG, BANDRA (W)-MUMBAI 400050 ASSESSEE PAN: ADNPR 6420 M VS. ACIT-CENTRAL CIRCLE 24 &26 4 TH FLR, AYAKAR BHAVAN, M.K. ROAD, REVENUE MUMBAI 400 020. ITA. NO.1056 TO 1062/MUM/2013 (ASSESSMENT YEAR: 2002-03 TO 2008-09 ) ACIT-CENTRAL CIRCLE 24 &26 4 TH FLR, AYAKAR BHAVAN, M.K. ROAD, REVENUE MUMBAI 400 020. VS. SHRI. DHANVINDER SINGH BINDRA C/O. R. SANGHVI & CO, 104, RIZVI CHAMBERS,-2, JAIN MANDIR MARG, BANDRA (W)-MUMBAI 400050 ASSESSEE PAN: ADNPR 6420 M ASSESSEE(S) BY : SHRI VIJAY MEHTA , AR REVENUE BY : SHRI ANAND MOHAN , CIT - DR /DATE OF HEARING : 19/11/2015 /DATE OF PRONOUNCEMENT: 30/11/2015 ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 3 / O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER:- THESE CROSS APPEALS HAVE BEEN FILED BY THE TWO ASS ESSEES AND REVENUE AGAINST SEPARATE ORDERS OF THE LD. COMMISSI ONER OF INCOME- TAX (APPEALS)-39, MUMBAI, PASSED FOR ASSESSMENT YEA RS MENTIONED ABOVE. SINCE ALL THESE APPEALS RELATE TO SAME SEAR CH ACTION AND INVOLVE COMMON ISSUES, THEREFORE THESE WERE HEARD T OGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR TH E SAKE OF CONVENIENCE. WE SHALL FIRST TAKE UP THE BUNCH OF A PPEALS FILED BY THE ASSESSEE AND ITA. NO. 2462/MUM/2012 FOR ASSESSM ENT YEAR 2002-03 IS BEING TAKEN AS THE LEAD CASE FOR THE PUR POSE OF NARRATING THE FACTS. SHRI. LAKHMICHAND D. ROHIRA ITA NO. 2462/MUM/2012-APPEAL BY ASSESSEE & ITA NO 2581/MUM/2012 BY REVENUE FOR AY 2002-03 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN THIS APPEAL (AY 2002-03) READ AS UNDER: 1. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE ORDER PASSED BY THE ASSESSING OFFICER U/S. 143(3) R.W.S 153 A OF THE INCOME-TAX ACT, 1961 WHIC H IS INVALID AND BAD IN LAW. 2. THE LEARNED CIT(A) OUGHT TO HAVE HELD THAT THE A SSESSING OFFICER HAS PASSED THE ORDER WITHOUT GIVING A PROPE R AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 4 3. THE LEARNED CIT(A), HAS ERRED IN UPHOLDING AN AD DITION OF RS.50,18,750/- OUT OF TOTAL ADDITION OF RS.1,82,50, 000/- MADE BY THE ASSESSING OFFICER ON THE GROUND THAT THE ASS ESSEE HAS RECEIVED INCOME RS.13,750/- PER DAY FROM THE SOCIAL CLUB. 4. THE LEARNED CIT(A) HAS ERRED IN NOT GIVING BENEF IT OF TELESCOPING IN RESPECT OF RS.3,94,689/- DECLARED BY THE ASSESSEE AS INCOME ON ACCOUNT OF CASH DISCREPANCIES . 5. THE LEARNED CIT(A), HAS ERRED IN CONFIRMING LEVY OF INTEREST UNDER SECTION 234B AND 234C OF THE INCOME TAX ACT, 1961. ADDITIONAL GROUNDS OF APPEAL:- THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ADDI TION MADE BY THE ASSESSING OFFICER RELATING TO DISCREPANCY OF RS.1,30,731/- TOWARDS OPENING BALANCE OF FIXED DEPO SIT MATURED DURING THE YEAR. 3. THE GROUNDS OF APPEAL RAISED BY THE REVENUE IN T HIS APPEAL (AY 2002-03) READ AS UNDER: 1. ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD CIT(A) ERRED IN DIRECTING THE AO TO REDUCE THE ADDITION MADE IN THE HANDS OF SHRI LAKHMICHAND ROHIRA FROM R S. 55,000/- P.M TO RS. 13,750/- P.M AS RECEIPT FROM TH E BUSINESS ACTIVITY OF M/S SHREE RAM SOCIAL CLUB. 4. THE GROUND NOS. 1 AND 2 OF THE ASSESSEES APPEAL FOR ALL ASSESSMENT YEARS, I.E., AY 2002-03 TO 2004-05 & 2 006-07 TO 2008-09 ARE NOT PRESSED AT THE TIME OF HEARING BEFO RE US; THEREFORE, THEY ARE DISMISSED AS NOT PRESSED. ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 5 5. GROUND NO.3 OF THE ASSESSEES APPEAL FOR AY 2002 - IS AGAINST REGARD TO THE ADDITION CONFIRMED IN THE HANDS OF T HE ASSESSEE BY CIT(A) AMOUNTING TO RS.50,18,750/- OUT OF TOTAL ADD ITION OF RS.1,82,50,000/-. 5.1 THE BRIEF FACTS OF THE CASE ARE THAT A SEARCH A ND SEIZURE ACTION U/S 132 OF THE INCOME-TAX ACT, 1961 WAS COND UCTED ON 08.05.2007 AT THE RESIDENTIAL AND BUSINESS PREMISES OF THE BINDRA GROUP. THE ASSESSEE WAS ALSO COVERED IN THE SAID SE ARCH OPERATIONS. IN RESPONSE TO NOTICE U/S 153A ISSUED ON 19.08.2008 , THE ASSESSEE FILED RETURN OF INCOME ON 31.10.2008 DECLARING TOTA L INCOME OF RS.4,96,647/-. THE ASSESSEE FILED ORIGINAL RETURN OF INCOME ON 15.05.2002 ADMITTING TOTAL INCOME OF RS.86,890/-. 5.2 IN THE ASSESSMENT ORDER U/S 143(3) R.W.S. 153A OF THE INCOME-TAX ACT, THE ASSESSING OFFICER ADDED THE FOL LOWING AMOUNTS:- INCOME ESTIMATED FROM SHREE RAM SOCIAL CLUB-RS.1,82 ,50,000/- INCOME FROM UNDISCLOSED SOURCES RS.11,46,661/- 5.3 MR. DHANVINDER SINGH BINDRA ALONGWITH THE ASSES SEE WAS RUNNING THE SHREE RAM SOCIAL CLUB. SHRI RAM SOCIAL CLUB WAS ALSO SEARCHED DURING THE SEARCH PROCEEDINGS AND STATEMEN TS WERE ALSO RECORDED OF THE EMPLOYEES AND THE ASSESSEE. DURI NG THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS ASKED BY T HE ASSESSING OFFICER TO SHOW CAUSE WHY ON THE BASIS OF SEIZED MA TERIAL, STATEMENT OF EMPLOYEES, ASSESSEES OWN STATEMENT AND CASH OF RS.2,86,100/- ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 6 SEIZED DURING THE SEARCH OPERATION FROM CLUB PREMIS ES IT SHOULD NOT BE INFERRED THAT THE DAILY INCOME OF THE CLUB WAS I N RANGE OF RS.1.5 TO 2 LAKHS PER DAY. IN RESPONSE TO THE SAME, THE A SSESSEE RETRACTED FROM HIS STATEMENT RECORDED DURING THE SEARCH AND C LAIMED THAT DAILY INCOME OF THE CLUB WAS IN RANGE OF RS.4000-50 00 ONLY. THE ASSESSING OFFICER DID NOT ACCEPT THE ASSESSEES SUB MISSION AND FURTHER STATED THAT IT HAS BEEN HELD IN VARIOUS DEC ISIONS OF THE COURTS THAT THE STATEMENT GIVEN BY THE ASSESSEE AT THE TIME OF SURVEY/SEARCH ACTION WAS BINDING ON HIM AND ANY RET RACTION MADE BY HIM HAD NO MEANING AT ALL UNLESS SUBSTANTIATED B Y FACTS. 5.4 THUS, THE ASSESSING OFFICER DETERMINED THE INCO ME OF THE CLUB AT RS. 1 LAC PER DAY IN VIEW OF THE FOLLOWING REASONS:- AS PER STATEMENT OF MR. A.O. DAVIS, RECORDED U/S 13 2(4) ON 09.05.2007 (WHO WAS CARETAKER IN THE CLUB, AND WAS PART OF MANAGING COMMITTEE) DAILY INCOME OF CLUB AS SPECIFI ED IN Q.8 RANGES FROM 1.5 LAKHS TO 2 LAKHS PER DAY AND THIS I S THE AVERAGE INCOME OF THE CLUB FROM LAST 7-8 YEARS. AS PER THE STATEMENT, RENT OF RS.1,000/- PER DAY HAS BEEN GIVE N TO MR. DHANVINDER SINGH BINDRA FOR USE OF HIS FLAT FOR CLU B ACTIVITIES. FURTHER AS PER THE STATEMENT THERE ARE APPROXIMATEL Y 25 EMPLOYEES IN THE CLUB TO WHOM SALARY IN THE RANGE O F 100-200 PER DAY HAD BEEN GIVEN. REGARDING ACCOUNTING OF IN COME AND EXPENDITURE OF CLUB, HE SPECIFICALLY STATED THAT DA ILY ACCOUNTS ARE WRITTEN ON LOSE PAPERS AND TORE OFF AT THE END OF THE DAY. AS PER STATEMENT OF MR. JAYANTI BHAI SAVLA (WHO HAN DLES WORK OF GIVING COUNTER IN 1 ST FLOOR) RECORDED U/S 132(4) ON 08.05.2007, DAILY CASH SAVINGS OF HIS PORTION OF CL UB WAS RS.20000 PER DAY, WHICH HE HANDED OVER TO MR. MASHR AF ANSARI AND AS PER THE STATEMENT OF MR. MASHRAF ANSA RI ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 7 RECORDED U/S 132(4) IN MR. JAYANTI SAVLAS PORTION, RATE PER GAME AND NUMBER OF PLAYERS WERE VERY LESS AS COMPAR ED TO OTHER FLOORS AT THE CLUB. AS PER MR. MASHRAF ANSAR I, THE FIRST FLOOR HALL MANAGED BY SAVLA THE RATE IS RS. 2 PER P OINT. FROM THIS, THE ASSESSING OFFICER INFERRED THAT THERE MUS T BE OVERALL CASH SAVINGS OF RS.1,00,000 PER DAY FROM THE CLUB I .E. NET PROFIT. IN HIS STATEMENT RECORDED U/S 131 ON 14.09 .2009, MR. JAYANT SAVLA RECONFIRMED THAT TOTAL CASH SAVINGS FR OM HIS PORTION WAS RS.20000 ON DAILY BASIS AND ALSO CONFIR MED THAT MR. MASHRAF ANSARI WAS IMPORTANT EMPLOYEE IN THE CL UB AND AVAILABLE AT THE TIME OF SEARCH. AS PER THE STATEMENT OF MR. MASHARAF ANSARI, RECORD ED U/S 132(4) ON 08.05.2007, THE AVERAGE INCOME OF THE CLU B ON DAILY BASIS WAS RS.2,00,000/- PER DAY. IN HIS STATEMENT, HE ALSO SPECIFICALLY MENTIONED THAT HOW ACCOUNTS OF THE PUN TERS WERE BEING KEPT. FROM THE STATEMENTS OF MR. A.O. DAVIS AND MR. MASHR AF ANSARI, IT WAS CLEAR THAT THE ACCOUNTS WERE KEPT O N LOOSE PAPERS WHICH WAS TORN OFF AT THE END OF THE DAY. F ROM THIS, IT CAN BE DIRECTLY INFERRED THAT THE CLEAR WORKINGS RE GARDING PROFITS CANNOT BE WORKED OUT. IN SUCH SCENARIO, TH E STATEMENTS RECORDED UNDER OATH BECOMES VERY IMPORTA TION. MR. LAXMICHAND ROHIRA, IN HIS STATEMENT RECORDED U/ S 132(4) ON 09.05.2007 SPECIFICALLY STATED THAT CLUB WAS OWN ED BY MR. DHANVINDER SINGH BINDRA AND HE CONDUCTED BUSINESS T HERE. THE RELEVANT PORTION OF THE STATEMENT IS EXTRACTED BELOW:- 'Q.20. DURING THE COURSE OF SEARCH PROCEEDINGS AT N EW KAMAL SOCIETY, 248, WATER FIELD ROAD, OPP. NATIONAL COLLE GE, BANDRA (W), MUMBAI 400 050, IT WAS FOUND THAT YOU ARE RUNN ING A CLUB, NAMED & STYLED AS 'SHRIRAM SOCIAL CLUB'. PLE ASE STATE THAT THE NATURE AND THE MODUS OPERATION, OF THE BUS INESS BEING CONDUCTED IN THE SAID CLUB AND INCOME THEREFR OM? ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 8 ANS. M/S. SHRIRAM SOCIAL CLUB IS OWNED BY MR DHANNE NDRA SINGH BINDRA (PAPAJI) I CONDUCT THE BUSINESS OF THE CLUB WHICH IS GAMBLING BY WAY OF GAME OF RUMMY (OF 21 CARDS). THE PREMISES WHICH IS 1 ST AND 2 ND FLOOR OF THE NEW KAMAL BUILDING IS OWNED BY MR. D.S. BINDRA FOR WHICH I PAY HIM RS. 6500/- SHARE. THE CARD GAME IN THE CLUB IS EXCLUSIVELY OF 21 CARDS RUMMY. THE GAME IS OF TWO RUPEES, 10 RUPEES AND 2O RUPEES POINT. THERE ARE 12 TABLES IN THE CLUB FOR THE GAME . HOWEVER, THE GAME IS CURRENTLY CONDUCTED ON 4 TO 5 TABLES ON LY. WE RECEIVE 40 RUPEES, 100 RUPEES AND 200 RUPEES/GAME O N 2 RUPEES POINTS, 1O RUPEES POINTS AND 20 RUPEE POINTS RESPECTIVELY. EACH PLAYER WILL HAVE TO PLAY MINIMUM 36 GAMES. THE GROSS RECEIPT OF THE CLUB IS IN THE RANGE OF RS . 45,000/- TO RS. 55,000/- PER DAY. OUT OF THIS AROUND 50% OF THE GROSS RECEIPT IS SPENT ON ACCOUNT OF VARIOUS EXPENDITURES VIZ. SALARY TO EMPLOYEES, RENT OF PREMISES PAID TO MR. D. S. BI NDRA, TEA AND SNACKS TO THE MEMBERS AND SOME OTHER INCIDENTAL EXPENSES.' 5.5 FROM THE CLUB PREMISES, CASH OF RS.2,86,100/- HAD BEEN SEIZED WHICH REITERATED THE FACT THAT DAILY AVERAGE INCOME OF THE CLUB WAS IN THE RANGE OF RS.1 LAKH TO 2 LAKHS, AS I T MUST BE INCOME OF PREVIOUS DAY. 5.6 FROM THE CLUB PREMISES, LOOSE PAPERS HAD BEEN S EIZED IN WHICH AGAINST THE NAME OF THE PUNTER, FIGURES WERE WRITTEN AND WHICH AS PER EXPLANATION GIVEN BY MR. MASHRAF ANSAR I SHOWED THAT CLUB WAS HAVING HUGE INCOME BY WAY OF GAMBLING ACTI VITIES. THE ASSESSING OFFICER ON THE ANALYSIS OF THESE PAPERS E XPLAINED THE MODUS OPERANDI OF CLUB AS FOLLOWS:- SHRI DHANVINDERSINGH S. BINDRA HAS BEEN RUNNING BU SINESS OF GAMBLING & BETTING WITH THE HELP OF SHRI LAKHMIC HAND ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 9 ROHIRA FROM 1 ST AND 2 ND FLOOR OF NEW KAMAL CO-OP HSG. SOCIETY SITUATED AT 248 LINKING ROAD, OPP. NATIONAL COLLEGE , BANDRA (W), MUMBAI 400 050. THE GAMBLING ACTIVITIES WERE B EING CONDUCTED UNDER GARB OF 'SHREE RAM SOCIAL CLUB CLA IMED TO BE FOR PROVIDING AMUSEMENT TO ITS MEMBERS AND THEIR GUEST BUT THE FACT GATHERED DURING THE SEARCH REVEALED TH AT THE GAMBLING IN THE FORM OF GAME OF 'RUMMY WAS BEING P LAYED AMONG VARIOUS PUNTERS AT THE ABOVE PREMISES. AS PER PAGE 116 OF SEIZED MATERIAL MR. DHANVJNDER SINGH BINDRA IS T HE HONOURABLE PRESIDENT AND PROPRIETOR OF SHREE RAM SO CIAL CLUB. THE RUMMY WAS PLAYED AT STAKE RANGING FROM RS . 10/- PER POINT OF RS. 100/- PER POINT. PUNTER SITTING ON THE TABLE PLAY RUMMY ON SAME STAKE AND EACH TIME COMMISSION EQUIVALENT TO STAKE PER POINT IS CHARGED FROM THE P UNTER DECLARING THE GAME. FOR EG.: IF SIX PUNTERS ARE PLA YING RUMMY OF RS, 5G/- PER POINT THEN THE PUNTER WHO DECLARES THE RUMMY HAS TO PAY RS. 5G/- TO THE CLUB AS COMMISSION . GENERALLY, SIX PUNTERS ARE PLAYING RUMMY WITH THREE SET OF CARDS PLAY ON A TABLE. AFTER ONE ROUND IS COMPLETED THE PUNTERS WITHDRAW THE CARD FOR THEIR SITTING POSITIO N. THE PUNTER WITHDRAWING THE CARD OF HIGHEST VALUE IS ALL OWED TO CHOOSE THE CHAIR WHERE HE WANTS TO SIT ON THE CHAIR BESIDES THE TABLE AND OTHER PUNTER SIT IN DESCENDING ORDER OF THE VALUE OF THE CARD PULLED BY THEM FROM THE STAKE OF RS. 50 /0 THE CLUB COLLECT RS, 300/- FROM THE PARTICULAR TABLE. SIMILA RLY FOR STAKE OF RS. 10/-, 20/- AND 100/- ETC., AMOUNT OF RS. 60, 120 AND 600/- RESPECTIVELY IS COLLECTED BY THE CLUB FOR A R OUND FROM THE PARTICULAR TABLE. MANY TIMES STAKES PER POINT TO BE PLAYED IS SHARED BY THE PUNTER WITH THE CLUB. FOR EG IN THE C ASE OF STAKE OF RS. 100/- PER POINT THE PUNTER WANTS TO PLAY RS. 60/- PER POINT, THEN IT AGREES THAT RS. 40/- PER POINT IS PL AYED BY HIM ON BEHALF OF THE CLUB AND NOTING OF 60/40 IS RECORD ED BEFORE HIS NAME IN THE RECORD FOR THE CLUB MAINTAINED BY T HE CLUB WHICH INTER-ALIA MEANS THE PROFIT AND LOSS IS SHARE D IN THE RATIO OF 60/40 BETWEEN THE PUNTER AND THE CLUB. THE AMOUNT OF BANK AND CUT /COMMISSION MAY VARY FROM CLUB TO C LUB. A PUNTER INTENDING TO GAMBLE BY PLAYING 'RUMMY' HAS T O DEPOSIT THE CASH AMOUNT CALLED 'BANK' WHICH IS GENERALLY EQ UIVALENT TO ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 10 THE 1000 POINTS MULTIPLIED BY THE STAKE FOR WHICH H E WANTS TO PLAY THE GAME. FOR EG, A PUNTER INTENDING TO PLAY R S. 100/- PER POINT HAS TO DEPOSIT AMOUNT OF RS. 1,00,000/- I N LIEU OF WHICH PLASTIC TOKEN KNOWN AS 'COUNTERS' OF DIFFEREN T POINTS EQUIVALENT TO 1000 POINTS ARE ISSUED TO HIM. SOME T IME CREDITS ARE ALSO ALLOWED TO THE REGULAR PUNTERS. IN SUCH CA SES ACCOUNTS ARE TO BE SETTLED BY THE PUNTERS ON WEEKLY , FORTNIGHTLY OR MONTHLY BASIS DEPENDING UPON THE CRE DITABILITY OF THE PUNIER. IN CHARGE OF EACH FLOOR MAINTAINS RE CORDS IN RESPECT OF TOKEN/COUNTER ISSUED TO EACH CUSTOMER/ P UNTER, CASH ON ACCOUNT 'BANK' RECEIVED FROM PUNTER, COMMIS SION RECEIVED BY THE CLUB AND DETAILS OF WIN OR LOSS INC URRED BY EACH PUNTER. THUS, THE TOTAL PROFIT AND THE CASH PR OFIT EARNED BY THE CLUB ON EACH DAY, RECEIVABLE AND PAYABLE ON THE PARTICULAR DAY IS DULY WORKED OUT BY THE CLUB. 5.7. FROM THE ABOVE, THE ASSESSING OFFICER OBSERVED THAT THE CLUB MUST BE EARNING NET INCOME OF RS.1,00,000/- PER DAY ON AVERAGE BASIS ATLEAST FROM THE LAST 6-7 YEARS. AS PER ASSE SSEES CLAIM 50% OF THE GROSS RECEIPTS WERE SPENT ON ACCOUNT OF VARI OUS EXPENDITURES SUCH AS SALARY , ELECTRICITY , WATER AND OTHERS AS HE CONDUCTED BUSINESS THERE. 5.8 AFTER DETERMINING THE INCOME AT RS.1 LAC PER DA Y FROM THE CLUB, THE ASSESSING OFFICER BIFURCATED THE INCOME I N THE RATION OF 50:50 BETWEEN SHRI DHANVINDER SINGH BINDRA AND THE ASSESSEE FOR THE FOLLOWING REASONS:- AS PER LOOSE PAPER 116, MR. DHANVINDER SINGH BINDRA IS HONOURABLE PRESIDENT AND PROPRIETOR OF 'SHREE RAM S OCIAL CLUB:. AND FROM OTHER LOOSE PAPERS, IT CAN BE DIREC TLY INFERRED THAT MR. DHANVINDER SINGH BINDRA WAS PRESIDENT OF T HE CLUBAND MR. L. C. ROHIRA WAS CONDUCTOR-CUM-TREASURA R OF THE ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 11 DUB AND CLUB WAS RUNNING CONTINUOUSLY FROM A NUMBER OF YEARS. ALL THE ABOVE MENTIONED PERSONS WHO WERE REGULAR EM PLOYEES IN THE CLUB, SPECIFICALLY MENTIONED THAT MR. DHANVI NDER SINGH BINDRA AND MR.LAXMICHAND ROHIRA WERE MAIN PERSONS, WHO RUN THE CLUB AND SHARE THE INCOME OF THE CLUB EQUAL LY. FLATS, FROM WHERE CLUB WAS CONDUCTED, WAS OWNED BY MR. DHANVINDER SINGH BINDRA. FROM THE CLUB PREMISES, LOOSE PAPERS HAVE BEEN FOUN D, WHICH SPECIFICALLY MENTIONED THAT MR, DHANVINDER SINGH BI NDRA WAS MAIN PERSON, WHO REPRESENTS THE CLUB AT ALL LEGAL F ORUMS. MR. LAXMICHAND ROHIRA IN HIS ABOVE MENTIONE D STATEMENT CLEARLY SPECIFIES THAT INCOME OF THE DUB IS DIVIDED BETWEEN MR. AND HIMSELF (MR, ROHIRA) IN THE RATIO O F 50-50%, ACCORDINGLY AS PER PROVISIONS OF INCOME TAX ACT, BOTH MR. D.S. BINDRA AND MR. L C. ROHIRA ARE REPRESENTATIVE ASSESSES OF THE CLUB AND WILL BE ASSESSED ACCORDINGLY, TO PROTE CT THE INTEREST OF REVENUE. OTHER FACTS, WHICH LEAD TO THE FACT THAT ASSESSES W AS ACTIVELY INVOLVED IN GAMBLING ACTIVITIES AND REGULARLY EARNE D INCOME BY WAY OF IT ARE:- I ASSESSEE IS NOT HAVING ANY REGULAR SOURCE OF INCO ME. INCOME WHICH HE WAS SHOWING AS COMMISSION INCOME, WAS BOGU S ONE, AS ACCEPTED BY ASSESSEE HIMSELF IN HIS STATEMENT U/ S. 132(4). II. ASSESSEE HAS NOT MAINTAINED ANY BOOKS OF ACCOUN TS REGARDING COMMISSION INCOME EARNED BY THE ASSESSEE HIMSELF AND HIS SONS. III ASSESSEE IS MAKING CAPITAL BY WAY OF GIFTS AND INHERITANCE. IV.ASSESSEE HAS MADE UNACCOUNTED INVESTMENTS IN SHO PS. ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 12 5.9 THUS, THE ASSESSING OFFICER ACCORDINGLY ASSESSE D RS.1,82,50,000/- (365 X 1 LAC X 50/100) IN THE HAND S OF THE ASSESSEE. 6. THE MATTER WAS CARRIED BEFORE THE FIRST APPELLAT E AUTHORITY, WHEREIN VARIOUS CONTENTIONS WERE RAISED ON BEHALF O F THE ASSESSEE WHO WAS A MANAGING COMMITTEE MEMBER OF SOCIETY CALL ED SHRIRAM SOCIAL CLUB, WHICH WAS REGISTERED UNDER SOCIETY RE GISTRATION ACT, 1960 ON 16.03.1999. THE MAIN OBJECTIVES OF THIS SO CIETY ARE AS UNDER:- I) TO PROVIDE FOR BASIC KNOWLEDGE OF THE INDOOR G AMES AMONGST THE MEMBER OF THE CLUB, II) TO PROVIDE FOR BETTER FACILITIES FOR PLAYING T HE INDOOR GAMES. III) TO ARRANGE FOR SUPPLY OF SPORTS MAGAZINES, BOOKLETS ETC. TO THE MEMBERS, IV) TO CELEBRATE RELIGIOUS FUNCTIONS AMONGST THE M EMBERS OF THE CLUB. V] TO PROVIDE FOR RECREATION OR OTHER LEISURE TIM E OCCUPATION BY ARRANGING INDOOR GAMES SUCH AS CAROM, PLAYING CA RDS, BRIDGE, CHESS AND ARRANGE THE TOURNAMENTS OF SUCH G AMES AMONGST THE MEMBERS. VI) TO ARRANGE FREE MEDICAL CAMPS TO HELP THE POOR PEOPLE OF THE LOCALITY VII) TO PROVIDE FOR THE MEDICAL HELP TO THE POOR AN D NEEDY PERSONS. VIII) TO ARRANGE FOR SUPPLY OF TEXT BOOKS, EXERCISE BOOKS, UNIFORMS, STATIONERY AND OTHER NECESSARY ARTICLES T O THE POOR AND DESERVING STUDENTS. IX) TO HELP PERSONS AFFECTED BY NATURAL CALAMITI ES. 6.1 THE SOCIETY WAS ALSO REGISTERED WITH CHARITABLE COMMISSIONER VIDE REGISTRATION NO.F.29327 DATED 26. 07.1999. ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 13 SHRIRAM SOCIAL CLUB WAS RUNNING ACTIVITIES FROM 2/4 8, NEW KARNAL BUILDING, 1 ST AND 2 ND FLOOR, LINKING ROAD, BADRA (W), MUMBAI 400 050. THE PREMISES WAS OWNED BY MR. DHANVENDRA SING H S. BINDRA WHO WAS ALSO THE PRESIDENT OF THE SAID CLUB. THE AF FAIRS OF THE CLUB WERE RUN BY MANAGING COMMITTEE WHICH CONSISTED OF F OLLOWING:- PRESIDENT MR. D.S. BINDRAQ VICE PRESIDENT MR. K.D. BINDRA SECRETARY MR. YUSUF BAKALI TREASURER MR. LAKHMICHAND D. ROHIRA COMMITTEE MEMBER MR. A.O. DAVIS COMMITTEE MEMBER MR. A.O. THOMAS COMMITTEE MEMBER MR. GOP NATHANI 6.2 THE SUBMISSION OF THE ASSESSEE WAS THAT ON 08.0 5.2007 THERE WAS SEARCH OPERATION ON THE BINDRA GROUP AND MR. LAKHMICHAND D. ROHIRA. DURING THE COURSE OF SEARCH OF BINDRA GROUP AT THE ABOVE SAID PREMISES, CERTAIN RECORDS O F SHRIRAM SOCIAL CLUB WERE ALSO FOUND AND SEIZED. THE STATEMENTS OF THREE EMPLOYEES VIZ. (1) MR. JAYANT M. SAVLA, (2) MR. A.O . DAVIS AND (3) MR. MUSHRAF ANSARI WERE RECORDED AND QUESTIONS WERE ASKED ABOUT ACTIVITY AND INCOME OF THE SOCIAL CLUB. THE ASSESSI NG OFFICER HAD ALLEGED THAT GAMBLING ACTIVITIES WERE CONDUCTED BY THE SAID CLUB AND THE ASSESSING OFFICER IN HIS ORDER HAD ELABORAT ELY EXPLAINED HOW THE GAME OF CARD KNOWN AS RUMMY WAS PLAYED BY M EMBERS OF THE CLUB. THE ASSESSING OFFICER HAD ASSUMED ON ADHO C BASIS THAT THE CLUB WAS EARNING RS.1 LAC PER DAY FROM THESE AC TIVITIES. THE ASSESSING OFFICER AFTER TREATING MR. D.S. BINDRA AN D MR. L.D. ROHIRA ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 14 AS REPRESENTATIVE ASSESSEE OF THE CLUB ASSESSED IN THE HAND OF THE ASSESSEE 50% OF THE PRESUMED INCOME CALCULATED ON A DHOC BASIS WITHOUT ANY CALCULATION OR INTERPRETATION OF SEIZED MATERIAL. THE STAND OF THE ASSESSEE HAD BEEN THAT NO SEIZED MATER IAL WERE FOUND RELATING TO AY 2002-03 AND THE ASSESSEE WAS ASSESSE D TO SUCH INCOME IN HIS CAPACITY AS REPRESENTATIVE ASSESSEE A S STATED IN PARAGRAPH 6 ON PAGE NO.6 OF THE ASSESSMENT ORDER. F URTHER STAND OF THE ASSESSEE HAS BEEN THAT SECTION 160 OF INCOME TA X ACT DEALS WITH THE CIRCUMSTANCES IN WHICH AN ASSESSEE MAY BE TREATED AS REPRESENTATIVE ASSESSEE FOR OTHER PERSON WHICH STAT ES AS UNDER:- '160 (1) FOR THE PURPOSES OF THIS ACT, 'REPRESENTAT IVE ASSESSEE' MEANS (I) IN RESPECT OF THE INCOME OF A NON-RESIDENT SP ECIFIED [***] SUB-SECTION (1) OF SECTION 9, THE AGENT OF THE NON- RESIDENT, INCLUDING A PERSON WHO IS TREATED AS AN AGENT UNDER SECTION 163; (II) IN RESPECT OF THE INCOME OF A MINOR, LUNATIC OR IDIOT, THE GUARDIAN OR MANAGER WHO IS ENTITLED TO RECEIVE OR I S IN RECEIPT OF SUCH, INCOME ON BEHALF OF SUCH MINOR, LU NATIC OR IDIOT; (III) IN RESPECT OF INCOME WHICH THE COURT OF WARDS THE ADMINISTRATOR-GENERAL THE OFFICIAL TRUSTEE OR ANY R ECEIVER OR MANAGER (INCLUDING ANY PERSON, WHATEVER HIS DESIGNATION, WHO IN FACT MANAGES PROPERTY ON BEHALF OF ANOTHER) APPOINTED BY OR UNDER ANY ORDER OF A COURT , RECEIVES OR IS ENTITLED TO RECEIVE , ON BEHALF OR F AR THE BENEFIT OF ANY PERSON, SUCH CONN OF WARDS, ADMINISTRATIVE-GENERAL OFFICIAL TRUSTEE, RECEIVER O R MANAGER, (IV) IN RESPECT OF INCOME WHICH IS TRUSTEE APPOINT ED UNDER A TRUST DECLARED BY A DULL/ EXECUTED INSTRUMENT IN WR ITING WHETHER TESTAMENTARY OR OTHERWISE /INCLUDING ANY WA KF ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 15 DEED WHICH IS VALID UNDER THE MUSSALMAN WAKF VALIDA TING ACT, 1913 (6 OF 19130 RECEIVES OR IS ENTITLED TO RE CEIVE ON BEHALF OR FOR THE BENEFIT OF ANY PERSON SUCH TRUSTE E OR TRUSTEES; (V) IN RESPECT OF INCOME WHICH IS TRUSTEE APPOINTE D UNDER AN ORAL TRUST RECEIVES OR IS ENTITLED TO RECEIVE ON BE HALF OR FOR THE BENEFIT OF ANY PERSON, SUCH TRUSTEE OR TRUSTEES . EXPLANATION 1 - A TRUST WHICH IS NOT DECLARED BY A DULY EXECUTED INSTRUMENT IN WRITING (INCLUDING ANY WAKF DEED WHICH IS VALID UNDER THE MUSSALMAN WAKF VALIDATING ACT, 1913 (6 OF 1913) SHALL BE DEEMED, FOR THE PURPOSE O F CLAUSE (IV), TO BE A TRUST DECLARED BY A DULY EXECU TED INSTRUMENT IN WRITING IF A STATEMENT IN WRITING, SI GNED BY THE TRUSTEES, SETTING OUT THE PURPOSE OR PURPOSES O F THE TRUST, PARTICULARS AS TO THE TRUSTEES, THE BENEFICI ARY OR BENEFICIARIES AND THE TRUST PROPERTY I( FORWARDED T O THE /ASSESSING OFFICER (I) WHERE THE TRUST HAS BEEN DECLARED BEFORE THE 1ST DAY OF JUNE, 1981, WITHIN A PERIOD OF THREE MONTHS FROM TH AT DAY; AND; (II) IN ANY OTHER CASE, WITHIN THREE MONTHS FROM, THE DATE OF DECLARATION OF THE TRUST. EXPLANATION 2. FOR THE PURPOSES OF CLAUSE (V), 'OR AL TRUST' MEANS A TRUST WHICH IS NOT DECLARED BY A DULY EXECU TED INSTRUMENT IN WRITING [INCLUDING ANY WAKF DEED WHIC H IS VALID UNDER THE MUSSALMAN WAKF VALIDATING ACT, 1913 (6 OF 1913},J AND WHICH IS NOT DEEMED UNDER EXPLANATIO N I TO BE A TRUST DECLARED BY A DULY EXECUTED INSTRUMENT I N WRITING.] (2) EVERY REPRESENTATIVE ASSESSES SHALL BE DEEMED T O BE AN ASSESSES FOR THE PURPOSES OF THIS ACT. 6.3 THE ASSESSEE FURTHER SUBMITTED THAT WHETHER THE ASSESSEE COULD BE TREATED AS REPRESENTATIVE ASSESSEE DEPEN DED UPON THE LEGAL STATUS OF SHRIRAM SOCIAL CLUB AS PER THE PR OVISIONS OF THE INCOME TAX ACT. ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 16 I) 'SHRIRAM SOCIAL CLUB' HEREINAFTER REFERRED AS 'S OCIETY / CLUB' IS A SOCIETY REGISTERED UNDER SOCIETY REGISTRATION ACT 1860 UNDER REGISTRATION NO 422 DATED 16TH MARCH 1999. TH E SOCIETY IS ALSO REGISTERED WITH CHARITABLE COMMISSI ONER VIDE REGISTRATION NO. F-29327 DATED 26-7-1999. II) THE SOCIETY IS MANAGED BY MANAGING COMMITTEE C ONSISTING OF SEVEN MEMBERS WHO REGULATE & MANAGE THE CLUB ACTIVITIES. III) THE SOCIETY & TRUST ARE TWO DIFFERENT KIND OF LEGAL ENTITIES, WHILE THE SOCIETY IS REGISTERED & REGULATED BY SOCI ETY REGISTRATION ACT I860, A TRUST IS REGULATED BY INDI AN TRUST ACT 1882, IV) THE MEANING OF TRUST OR SOCIETY IS NEITHER DEFINED IN INDIAN TRUST ACT NOR SOCIETY REGISTRATION ACT. (F A) REQUISITE OF THE TRUST ON READING THE VARIOUS PROVISIONS OF INDIAN TRUST A CT & ALLIED LAWS AND VARIOUS LEGAL PRONOUNCEMENTS, THERE ARE FO UR MAJOR REQUISITES OF A TRUST. THESE ARE; I) THE EXISTENCE OF THE AUTHOR OF THE TRUST OR SOME ONE AT WHOSE INSTANCE THE TRUST COMES INTO EXISTENCE. II) THE BENEFICIARY, II) THE TRUST PROPERTY IV) THERE MUST BE DIVESTING OF THE OWNERSHIP BY THE AUTHOR OF THE TRUST IN FAVOUR OF THE BENEFICIARY OR THE TRUST EE. A TRUST IS AN OBLIGATION ANNEXED TO THE OWNERSHIP OF A SPEC IFIC PROPERTY AND NOT WITH REFERENCE TO A NON-EXISTENT P ROPERTY. UNLESS ALL THESE REQUISITES ARE FULFILLED, A TRUST CANNOT BE SAID TO HAVE COME INTO EXISTENCE. THESE PRINCIPLES HAVE BEE N POINTED OUT IN NACHIMUTHU INDUSTRIAL ASSOCIATION V, CIT (1980) 123 ITR 611 (MAD), B) REQUISITE OF THE SOCIETY : ON PERUSAL OF VARIOUS PROVISIONS OF THE SOCIETY REG ISTRATION ACT AND ALLIED LAWS AND VARIOUS LEGAL PRONOUNCEMENTS, T HE MAJOR REQUISITES OF SOCIETY ARE; I) CONGLOMERATE OF PEOPLE IN GENERAL OR PARTICULAR GROUP OF PEOPLE. II) MANAGING COMMITTEE FOR WORKING OF SOCIETY III) AN ELECTORAL FORM OF MANAGEMENT OF SOCIETY. ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 17 6.4 THE ASSESSEE FURTHER SUBMITTED THAT FROM THE AB OVE SUBMISSION IT COULD BE OBSERVED THAT THERE WAS NO T RUSTEE OR PARTICULAR BENEFICIARY IN A SOCIETY FORM OF ORGANIZ ATION. 6.5 LIKEWISE, VARIOUS SUBMISSIONS WERE MADE BY THE ASSESSEE AND THE LD. CIT(A), HAVING CONSIDERED THE SUBMISSIO NS ON BEHALF OF THE ASSESSEE, HAD GIVEN PARTIAL RELIEF TO THE SAME WHICH HAD BEEN OPPOSED BY BOTH THE PARTIES BY RAISING VARIOUS GROU NDS IN THE CROSS APPEALS, AS DISCUSSED ABOVE. 6.6 DURING THE SEARCH, IT WAS NOTICED THAT THE CL UB WAS NOT MAINTAINING ITS BOOKS OF ACCOUNTS PROPERLY AND IT W AS ALSO FOUND THAT THE DAY TO DAY ACCOUNTS WERE MAINTAINED IN LOO SE PAPERS AND THE LOOSE PAPERS WERE TORN OF AT THE END OF THE DAY . IT WAS ALSO NOT POSSIBLE TO FIND OUT THE EXACT INCOME FROM THE SEIZ ED MATERIALS FOUND DURING THE SEARCH. THE STATEMENTS WERE RECOR DED DURING THE SEARCH PROCEEDINGS FROM FOUR PERSONS AS DISCUSSED A BOVE. USING THE INFORMATION AVAILABLE ON THESE STATEMENTS, THE ASSESSING OFFICER ESTIMATED THE INCOME OF THE CLUB AT RS.1 LAC PER DA Y AND DISTRIBUTED THIS RS.1 LAC EQUALLY BETWEEN THE ASSESSEE AND MR. BINDRA & ASSESSED RS.1,82,50,000/- PER YEAR IN THE ASSESSEE S HAND STARTING FROM AY 2002-03 ONWARDS. THE ASSESSEE HAS CONTESTED THIS ADDITION ON THE FOLLOWING GROUNDS:- (I) THE INCOME HAS TO BE ASSESSED IN THE HANDS O F THE CLUB AND NOT IN THE HANDS OF THE APPELLANT AND THE APPEL LANT CANNOT BE HELD AS REPRESENTATIVE ASSESSEE. ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 18 (II) THE ESTIMATION MADE BY THE A.O AT RS. 1 LAKH INCOME PER DAY IS NOT REASONABLE AND THE A.O'S RELIANCE ON THE STATEMENTS RECORDED FROM THE LOWER LEVEL EMPLOYEES IS NOT JUSTIFIED. (III) THE INCOME SHOULD HAVE BEEN DISTRIBUTED TO V ARIOUS OFFICE BEARERS OF THE CLUB AND SHOULD HAVE BEEN ASSESSED I N THESE HANDS. (IV) IT IS ASSESSED IN THE APPELLANT'S HAND THEN TELESCOPING EFFECT SHOULD BE GIVEN WITH REGARD TO THE OTHER UNACCOUNTED INCOME ADMITTED/ASSESSED IN THE APPELLA NT'S HANDS. 6.7 THE LD. CIT(A) OBSERVED REGARDING OBJECTION NO. (I) ABOVE THAT EVEN THOUGH THE CLUB WAS REGISTERED AS SOCIETY, IT HAS NOT FUNCTIONED AS A SOCIETY. IT ALMOST FUNCTIONED AS A JOINT VENTURE OR AS A BUSINESSES OWNED BY THE TWO CO-OWNERS OF TWO I NDIVIDUALS NAMELY MR. DHANVINDER SINGH S. BINDRA AND THE ASSE SSEE. THIS FACT WAS EVIDENT FROM THE STATEMENTS RECORDED FROM ALL THESE PERSONS. THESE TWO PERSONS WERE ONLY MANAGING THE SHOW AND SHARING THE PROFIT. THE REGISTRATION OF THE SOCIE TY WAS ONLY FOR RECORD PURPOSES AND THE ACTUAL ACTIVITIES WERE CARR IED OUT NOT AS A SOCIETY BUT LIKE A JOINT VENTURE BY TWO INDIVIDUALS TO SHARE THE PROFIT FROM THE BUSINESS CARRIED OUT IN THE GUISE OF A SOC IETY. FROM THE STATEMENTS RECORDED, IT CAN BE SEEN THAT NO OTHER P ERSONS FROM THE SOCIETY HAD ENJOYED THE PROFITS OF THE CLUB OTHER T HAN THE ASSESSEE AND MR. BINDRA. IN VIEW OF THIS, THE CIT(A) HELD T HAT THE PROFITS ARISING FROM THE BUSINESS ACTIVITIES OF THESE TWO P ERSONS IN THE GUISE OF SOCIETY HAD TO BE ASSESSED AT 50:50 IN THE HANDS OF THE ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 19 ASSESSEE AND MR. BINDRA; THUS, THE GROUNDS LISTED ABOVE WAS REJECTED. 7. NEXT OBJECTION WAS CONSIDERED BY THE LD. CIT(A) WITH REGARD TO THE ESTIMATION OF INCOME AT RS.1 LAC PER DAY FROM T HE ACTIVITIES OF THE CLUB. HE OBSERVED THAT TWO PERSONS I.E., THE A SSESSEE AND MR. BINDRA HAD NOT KEPT RECORDS PROPERLY WHICH COULD EN ABLE TO DEDUCE THE CORRECT INCOME FROM THE BUSINESS ACTIVITY. LD. CIT(A) ALSO OBSERVED FROM THE STATEMENTS THAT THE ACCOUNTS OF E ACH DAY WERE RECORDED IN LOOSE PAPERS AND WERE TORN OFF AT THE E ND OF THE DAY AND SO THE INCOME HAD TO BE ESTIMATED ONLY ON THE BASIS OF THE STATEMENTS RECORDED FROM THE FOUR PERSONS. BUT, HE OBSERVED THAT MR. JAYANTI SAVLA AND MR. MASHRAF ANSARI WERE LOW P AID EMPLOYEES AND THEY WERE ASSIGNED SPECIFIC WORKS AND THEY WERE NOT AWARE OF THE ENTIRE FINANCIAL TRANSACTIONS OF THE CLUB. SO T HE STATEMENTS RECORDED FROM THESE TWO PERSONS WOULD NOT HELP TO DETERMINE THE INCOME EARNED FROM HIS BUSINESS ACTIVITY. IT WAS AL SO OBSERVED THAT MR. A.O. DAVIS WAS MORE INVOLVED IN THE DAY TO DAY FUNCTIONING OF THE CLUB AND HE WAS NOT INVOLVED IN THE DAY TO DAY ACCOUNTING OF THE BUSINESS ACTIVITY. ONLY THE ASSESSEE WAS INVOLV ED IN THE DAY TO DAY ACCOUNTING AND FINANCIAL MATTERS OF THE CLUB. IN FACT, THE ASSESSEE WAS SAID TO BE THE TREASURER OF THE CLUB. IN VIEW OF ABOVE, THE CIT(A) HELD THAT THE STATEMENT RECORDED U/S 13 2(4) OF THE ASSESSEE WAS MORE RELIABLE THAN THE STATEMENT RECOR DED FROM OTHER PERSONS WITH REGARD TO THE INCOME FROM THE BUSINESS ACTIVITY WHICH WAS CARRIED OUT IN THE GUISE OF SOCIETY. ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 20 7.1 THE ASSESSEE HAD STATED THAT THE GROSS INCOME F ROM THE CLUB MAY VARY FROM RS.45,000/- TO RS.55,000/- AND THE NE T INCOME WOULD BE AROUND 50% OF THE GROSS INCOME. THE SWORN STATEMENT RECORDED U/S 132(4) WAS RELIABLE EVIDENCE AND IF AN YBODY WANTED TO PROVE OTHERWISE IT HAD TO PROVE WITH RELIABLE EVIDE NCE THAT THE STATEMENT WAS FALSE. IN THE CASE ON HAND, THE DEPA RTMENT WAS NOT HAVING ANY DOCUMENTARY EVIDENCE TO SHOW THAT THE DA ILY INCOME WAS RS.1 LAC. ON THE OTHER HAND, THE ASSESSEE COUL D NOT PROVE THAT HIS GROSS INCOME WAS LESS THAN RS.55,000/- PER DAY. IN VIEW OF THIS, THE ASSESSEES CONTENTION THAT THE STATEMENT RECORDED U/S 132(4) FROM HIM DID NOT SHOW THE CORRECT STATE OF A FFAIRS OF THE BUSINESS ACTIVITY AND THE GROSS INCOME PER DAY WOUL D BE AROUND ONLY RS.2000 TO RS.4000 WAS REJECTED. THE CIT(A) F URTHER OBSERVED THAT THE ESTIMATION MADE BY THE ASSESSING OFFICER W AS ON THE HIGHER SIDE AND THE ASSESSING OFFICER HAD ASSESSED THE INC OME AT RS.13,14,43,000/- (RS.1,85,00,000 X 7 + RS.19,43,05 0/-) FOR ALL THESE ASSESSMENT YEARS I.E. AY 2002-03 TO 2008-09. THE ASSESSEE AND HIS FAMILY MEMBERS WERE ALSO SEARCHED AND NO O F ASSETS WERE FOUND IN THEIR HANDS. HE, THEREFORE, ESTIMATED THE GROSS RECEIPTS FROM THIS BUSINESS ACTIVITY AT RS.55,000 PER DAY AN D ESTIMATED THE NET PROFIT AT RS.27,500 PER DAY. ACCORDINGLY, THE CIT(A) DIRECTED THE ASSESSING OFFICER TO SUBSTITUTE RS.13,750/- PER DAY IN THE HANDS OF THE ASSESSEE AND DETERMINED THE ADDITION ACCORDINGL Y. 7.2 BEFORE US, LD. DEPARTMENTAL REPRESENTATIVE SUPP ORTED THE ORDER OF THE ASSESSING OFFICER. ON THE OTHER HAND, LD. AUTHORIZED ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 21 REPRESENTATIVE RELIED UPON THE SUBMISSIONS WHICH AR E SUMMARIZED AS UNDER TO OPPOSE THE ADDITION IN QUESTION :- I A SEARCH WAS CONDUCTED ON 08.05.2007 AT THE RESID ENTIAL / BUSINESS PREMISES OF THE ASSESSEE. THE ASSESSEE AND ONE MR. BINDRA WERE FOUND TO BE CARRYING ON SRI RAM SOCIAL CLUB, WHEREIN CARD PLAYING ACTIVITIES WERE CARRIED OUT, MAINLY OF 'RUMMY' AND THE PREMISES WHERE THESE ACTIVITIES WERE CARRIED OUT WA S OWNED BY MR. DHANVINDER SINGH BINDRA. II DURING THE COURSE OF SEARCH, STATEMENTS OF ASSES SEE AND VARIOUS EMPLOYEES WERE RECORDED, SOME OF THE DOCUME NTS WERE SEIZED AND ALSO FIXED DEPOSIT RECEIPTS AND KVP WERE SEIZED. CASH AMOUNTING LO RS, 2,86,100/- WAS ALSO SEIZED. III AS SLATED ABOVE, THE STATEMENT U/S. 132(4) OF M R. A.O. DAVIS, CARE TAKER OF THE CLUB WAS RECORDED, WHEREIN IT WAS STATED BY HIM THAT DAILY INCOME OF THE DUB IS IN THE RANGE OF 1.5 LACS TO 2 LACS PER DAY. IV STATEMENT OF ANOTHER EMPLOYEE, ONE MR MASHRAF AN SARI U/S. 132(4) WAS RECORDED, WHO WAS HANDLING CASH. IN THE SAID STATEMENT, IT WAS MENTIONED BY HIM THAT AVERAGE INC OME ON DAILY BASIS WAS RS.2 LACS PER DAY. IT WAS ALSO CLARIFIED THAT ACCOUNTS OF THE PUNTERS (PLAYERS) ARE KEPT ON LOOSE PAPER WHICH ARE TORN OFF AT THE END OF THE DAY. THUS, CLEAR WORKING WITH RESPEC T TO PROFITS EARNED BY THE CLUB WAS NOT POSSIBLE TO WORK OUT. ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 22 V STATEMENT OF ASSESSEE WAS RECORDED U/S. 132(4) OF THE ACT. IN THE SAID STATEMENT IT WAS STATED THAT THE GROSS INC OME RANGES BETWEEN RS.45,000 TO RS.55,000 PER DAY. OUT OF THE SAID INCOME, THE EXPENSES ON ACCOUNT OF RENT, SALARY TO EMPLOYEE S, TEA AND SNACKS TO MEMBERS AND SOME OTHER INCIDENTAL EXPENSE S ARE INCURRED WHICH IS APPROXIMATELY 50% OF THE GROSS IN COME AND THE BALANCE PROFIT IS SHARED BETWEEN THE APPELLANT AND MR. DHANVINDER SINGH BINDRA. VI THE LEARNED ASSESSING OFFICER ESTIMATED AVERAGE NET INCOME OF THE CLUB AT RS.1,00,000/- PER DAY BASED ON THE S TATEMENT OF THE EMPLOYEES. THE SAME WAS DIVIDED BETWEEN THE ASSESSE E AND THE ASSESSEE'S PARTNER, MR. DHANVINDER SINGH BINDRA IN THE RATIO OF 50:50, ACCORDINGLY, AN ADDITION OF RS.1,82,50,000/- (50,000 X 365 DAYS) WAS MADE FOR EACH YEAR. 7.3 THE STAND ON BEHALF OF THE ASSESSED IS THAT EMP LOYEES STATEMENTS WERE NOT RELIABLE AS THEY MAY NOT BE AWA RE OF THE OVERALL FUNCTIONING OF THE BUSINESS OF THE ASSESSEE. HENCE, STATEMENT OF THE ASSESSEE IS MORE RELIABLE ACCORDING TO WHICH GROSS INCOME PER DAY OF THE CLUB WAS ADOPTED AL RS.55,000/- AND 50% OF T HE INCOME WAS ALLOWED AS A DEDUCTION ON ACCOUNT OF EXPENSES AND T HE BALANCE 50% OF INCOME OF RS.27,500/- WAS DIVIDED BETWEEN TH E ASSESSEE AND HIS PARTNER IN THE RATIO OF 50:50. THUS, THE UN DISCLOSED INCOME ON ACCOUNT OF CLUB BUSINESS WAS CONFIRMED AT RS.50, 18,750/- BY CIT(A). ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 23 7.4. THEREFORE, AS STATED ABOVE, BOTH THE PARTIES A RE IN APPEAL BEFORE US AND RAISED THEIR GRIEVANCES AS NARRATED I N THE GROUNDS OF APPEALS. 7.5 THE ASSESSEE HAS PLACED BEFORE US A CHART IN TH IS REGARD, I.E. THE ESTIMATION OF INCOME FROM CLUB AS MADE BY THE A SSESSING OFFICER AS WELL AS CIT(A) FOR ALL THE SIX ASSESSMEN T YEARS, WHICH READS AS UNDER:- ESTIMATE OF INCOME FROM CLUB AS MADE BY THE ASSESSI NG OFFICER SR.NO. PARTICULARS RS. BASIS 1. GROSS RECEIPT PER DAY 2,00,000 STATEMENT OF EMPLOYEES 2. LESS : 50% OF THE GROSS RECEIPT SPENT ON ACCOUNT OF EXPENDITURE VIZ. SALARY TO EMPLOYEES, RENT OF PREMISES PAID TO MR. D. S. BINDRA, TEA & SNACKS TO THE MEMBERS AND SOME OTHER INCIDENTAL EXPENSES. 1,00,000 STATEMENT OF THE ASSESSES AND STATEMENTS OF THE EMPLOYEES 3. NET RECEIPTS PER DAY 1,00,000 4. LESS : 50% SHARE IN DAILY INCOME OF THE CLUB OF SHRI D. S. BINDRA 50,000 STATEMENT OF THE ASSESSEE AND STATEMENTS OF THE EMPLOYEES 5. NET INCOME PER DAY 50,000 6. NO. OF DAYS 365 7. YEARLY INCOME 1,82,50, 000 NOTEL: THE ABOVE INCOME OF RS. 1,82,50,000/-- HAS B EEN ESTIMATED FOR ALL THE YEARS I.E. FROM A.Y.2002-03 TO A.Y.200 7-08 AT THE SAME FIGURE. ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 24 ESTIMATE OF INCOME FROM CLUB AS MADE BY THE CIT(A) SR.NO . PARTICULARS RS. BASIS 1. GROSS RECEIPT PER DAY 55,000 STATEMENT OF ASSESSEE 2. LESS : 50% OF THE GROSS RECEIPT SPENT ON ACCOUNT OF EXPENDITURE VIZ. SALARY TO EMPLOYEES, RENT OF PREMISES PAID TO MR. D. S. BINDRA, TEA & SNACKS TO THE MEMBERS AND SOME OTHER INCIDENTAL EXPENSES. 27,500 STATEMENT OF THE ASSESSEE AND STATEMENTS OF THE EMPLOYEES 3. NET RECEIPTS PER DAY 27,500 4. LESS : 50% SHARE IN DAILY INCOME OF THE CLUB OF SHRI D. S. BINDRA 13,750 STATEMENT OF THE ASSESSEE AND STATEMENTS OF THE EMPLOYEES 5. NET INCOME PER DAY 13,750 6. NO. OF DAYS 365 7. YEARLY INCOME 50,18,75 0 NOTE : THE ABOVE INCOME OF RS.50,18,750/- HAS BEEN ESTIMATED FOR ALL THE YEARS, I.E- FROM A.Y.2002-03 TO A.Y. 2007- 08 AT THE SAME FIGURE. 7.6 THUS, THE ISSUE BEFORE US IN ASSESSMENT YEAR 20 02-03 IS AGAINST THE ADDITION OF RS.50,18,750/- OUT OF THE T OTAL ADDITION OF RS.1,82,50,000/- MADE BY THE ASSESSING OFFICER ON T HE GROUND THAT THE ASSESSEE HAD RECEIVED INCOME OF RS.13,750/- PER DAY FROM THE SOCIAL CLUB. LD AR OF THE ASSESSEE STATED THAT TH E CIT(A), ON THE BASIS OF THE INCOME EARNED IN A.Y. 2008-09 OF RS.13 ,750/- PER DAY, ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 25 HAD ESTIMATED THE SAME INCOME FOR ALL THE SIX PRECE DING YEARS, I.E., RS.13,750/- PER DAY FOR ALL THE ASSESSMENT YEARS. IN THIS REGARD, THE STAND OF THE ASSESSEE HAD BEEN THAT IT WAS NOT POSSIBLE THAT A PERSON EARNS EXACT INCOME FOR CONSECUTIVE SEVEN YEA RS THAT HE HAD EARNED ON A PARTICULAR DAY ADMITTED BY ESTIMATES B ASED ON THE STATEMENT RECORDED DURING THE COURSE OF SEARCH WHIC H DESCRIBED FIGURES OF GROSS RECEIPTS OF CURRENT PERIOD. FURTHE R, THE CLUB CANNOT BE OPEN FOR ALL 365 DAYS A YEAR. THE CLUB WOULD NO T HAVE EARNED ON NON-FUNCTIONING DAYS FOR REASONS SUCH AS HOLIDAYS A ND OTHER FACTORS SUCH AS HEAVY RAINS, VACATION PERIODS, ETC.. IN TH IS BACKGROUND, THE ASSESSEE PROVIDED HIS ESTIMATE OF INCOME FOR ALL TH E SEVEN ASSESSMENT YEARS WHICH WAS BASED ON THREE ARGUMENTS :- (I) STATEMENT OF THE ASSESSEE THE ASSESSEE HAS IN HIS STATEMENT STATED THAT HE EARNS A GROSS INCOME OF RS .45,000 TO RS.55,000 PER DAY. IN THIS REGARD, THE ASSESSEE SUBMITTED THAT RS.45,000 PER DAY AS HIS DAILY GROSS INCOME AND ACCORDINGLY THE INCOME HAS BEEN CALCULATED. (II) GROWTH IN TURNOVER ACCORDING TO THE ASSESSEE , IT IS A WELL KNOWN FACT THAT TURNOVER OF ANY BUSINESS CANNOT BE ACHIEVED OVERNIGHT AND IT INCREASES PROGRESSIVELY. THE ASSESSEE HAS CALCULATED THE INCOME ON PROGRESSIVE B ASIS AFTER CONSIDERING 20% GROWTH RATE. (III) 30 NON-WORKING DAYS PER YEAR 7.7 IN THIS BACKGROUND, THE ASSESSEE ESTIMATED INCO ME FROM CLUB FOR AY 2002-03 TO 2008-09 AS UNDER:- SR. NO. PARTICULARS RS. 1. AVERAGE RECEIPTS PER DAY 45,000 ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 26 2. LESS : 50% OF THE GROSS RECEIPT SPENT ON ACCOUNT OF EXPENDITURE VIZ. SALARY TO EMPLOYEES, RENT OF PREMISES PAID TO MR. D. S. BINDRA, TEA & SNACKS TO THE MEMBERS AND SOME OTHER INCIDENTAL EXPENSES. 22,500 3. NET RECEIPTS PER DAY 22,500 4. 50% SHARE OF THE ASSESSED 11,250 5. NET INCOME PER DAY OF !HE ASSESSEE. 11,250 7.8. THE ASSESSEE ALSO PRODUCED A CHART SHOWING INC OME OF THE ASSESSEE ON PROGRESSIVE BASIS @ 20% AS UNDER:- SR. NO. ASSESSMENT YEAR INCOME PER DAY (RS.) INCOME PER ANNUM BY TAKING 335 WORKING DAYS (RS.)(365D- 30D) 1. 2008 - 09 11,250 3,82,500 * 2. 2007 - 08 9,000 30,15 , 000 3. 2006 - 07 7,200 24,12,000 4 . 2005 - 06 5,760 19,29,600 5. 2004 - 05 4,608 15,43,680 6. 2003 - 04 3,636 12,34,810 7. 2002 - 03 2,949 9,87,915 TOTAL 1,15,05,505 FIGURE MARKED * IS ARRIVED AT BY TAKING PERIOD FROM 1.4.2007 TO 07.05.2007 AFTER REDUCING 3 NON-WORKING DAYS I.E . 37-3=34 DAYS. ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 27 7.9 THUS, THE ASSESSEE, BY PROVIDING THE ESTIMATE D INCOME OF CLUB AS PER THE TABULAR WORKING ABOVE, PLEADED BEFORE US TO CONSIDER THE SAME AND REDUCE THE ADDITION AS CONFIRMED BY THE CI T(A). THE LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, ARG UED THAT THE ORDER OF ASSESSING OFFICER MAY BE RESTORED WHICH IS REASONABLE ACCORDING TO HIM IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIALS ON RECORDS. WE FIND THAT THE ASSESSEE I N HIS STATEMENT BEFORE THE SEARCH TEAM STATED ON OATH THAT THE DAIL Y INCOME RANGES BETWEEN RS. 45,000/- PER DAY TO RS 55,000/- AND THE LD CIT(A) TOOK RS. 55,000/- TO EXTRAPOLATE THE INCOME FOR THE ENTI RE YEAR. BESIDES THE INCOME WAS ESTIMATED FOR ALL 365 DAY WITHOUT GI VING ANY ALLOWANCE FOR HOLIDAYS/CLOSED DAYS DURING WHICH THE CLUB WAS CLOSED. AS STATED ABOVE THE ASSESSEE SUBMITTED BEFO RE US THAT THE ALLOWANCE SHOULD BE GIVEN FOR 30 DAYS IN YEAR. LD A R FOR THE ASSESSEE ALSO SUBMITTED THAT THE INCOME ESTIMATED O N PARTICULAR DAY IS FOR THE CURRENT YEAR AND SAME FORMULA CANNOT BE APPLIED FOR ALL THE PRECEDING YEARS COVERED UNDER THE SEARCH. ON THE BASIS OF ARGUMENTS OF BOTH THE SIDES WE FIND THAT SOME MORE FAIRNESS HAS TO BE THERE IN ESTIMATING THE INCOME IN QUESTION. ACCO RDINGLY THE INCOME IS CALCULATED BY TAKING RS. 50,000/- AS GROS S RECEIPT, ALLOWING 15 DAYS TO THE ASSESSEE IN EACH YEAR FOR N ON FUNCTIONAL DAYS IN A YEAR AS PER TABLE-A AND ALSO BY TAKING I NCOME BY 10% PROGRESSIVE BASIS AS PER TABLE-B AS UNDER:- ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 28 TABLE-A SR. NO. PARTICULARS RS. 1. AVERAGE RECEIPTS PER DAY 50,000 2. LESS : 50% OF THE GROSS RECEIPT SPENT ON ACCOUNT OF EXPENDITURE VIZ. SALARY TO EMPLOYEES, RENT OF PREMISES PAID TO MR. D. S. BINDRA, TEA & SNACKS TO THE MEMBERS AND SOME OTHER INCIDENTAL EXPENSES. 25,000 3. NET RECEIPTS PER DAY 25,000 4. 50% SHARE OF THE ASSESSED 12,500 5. NET INCOME PER DAY OF !HE ASSESSEE. 12,500 9.1. CALCULATION OF INCOME ON PROGRESSIVE BASIS @ 10% AS UNDER:- TABLE-B SR. NO. ASSESSMEN T YEAR INCOME PER DAY (RS.) INCOME PER ANNUM BY TAKING 350 WORKING DAYS (RS.)(365 DAYS- 15 DAYS) RELIEF GRANTED TO THE ASSESSEE (ADDITION CONFIRMED BY CIT(A) RS. 50,18,750-C) A B C D 1. 2008-09 12,500 4,43,750* 1,94,300* 2. 2007-08 11,250 39,37,500 10,81,250 3. 2006-07 10,125 35,43,750 14,75,000 4. 2005 - 06 9,113 31,89,550 18,29,200 5. 2004-05 8,202 28,70,700 21,48,050 ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 29 6. 2003-04 7,382 25,83,700 24,35,050 7. 2002 - 03 6,644 23,25,400 26,93,350 TOTAL 1,88,94,350 (FIGURE MARKED * IS ARRIVED AT BY TAKING PERIOD FRO M 1.4.2007 TO 07.05.2007 AFTER REDUCING 3 NON-WORKING DAYS I.E. 3 7-1.5=35.5 DAYS AND ADDITION CONFIRMED BY CIT(A) WAS RS. 6,38,050/-.) 9.2 IN VIEW OF THE ABOVE THE ADDITION IS DELETED T O THE EXTENT OF RS.26,93,350/- OUT OF RS. 50,18,750/- BY SUSTAINING THE ADDITION OF RS. 23,25,400 AND THUS THE GROUND IS PARTLY ALLOWE D. THE AO IS DIRECTED TO COMPUTE THE TAX ACCORDINGLY. THIS WILL TAKE CARE OF THE CORRESPONDING APPEAL OF THE REVENUE. 10. THE NEXT ISSUE RAISED IN THE ASSESSEES APPEAL FOR AY 2002- 03 IS WITH REGARD TO NOT GIVING THE BENEFIT OF TELE SCOPING IN RESPECT OF RS.3,94,689/- DECLARED BY THE ASSESSEE AS INCOME ON ACCOUNT OF CASH DISCREPANCIES. 10.1 IN THIS REGARD, THE STAND OF THE ASSESSEE HAS BEEN THAT THE ASSESSEE IN HIS RETURN OF INCOME DECLARED AN AMOUN T OF RS.3,94,689/- U/S. 132(4) OF THE ACT AS INCOME ON A CCOUNT OF CASH DISCREPANCIES. THIS INCOME WAS OFFERED AS THERE WER E CASH SHORTFALL, SOURCE OF WHICH COULD NOT BE EXPLAINED. IN THIS RE GARD, THE STAND OF THE ASSESSEE HAS BEEN THAT FOR AY 2002-03, THE ASSE SSEE HAS ESTIMATED HIS CLUB INCOME OF RS.9,87,915/- AS PER S UBMISSIONS BEFORE US. SINCE THERE WAS NO OTHER INCOME, THE CA SH DISCREPANCY OF RS.3,94,689/- WAS OUT OF CLUB INCOME ONLY, WHICH HAS ALREADY BEEN OFFERED IN HIS RETURN OF INCOME. HENCE, HE SUB MITTED THAT ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 30 TELESCOPING BENEFIT SHOULD BE GIVEN AND TAXABLE INC OME SHOULD BE REDUCED UPTO THE EXTENT OF RS.3,94,689/-. THE LD D R RELIED ON THE ORDERS OF AUTHORITIES BELOW. 10.2. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUS ED THE MATERIAL AVAILABLE ON RECORD. IN THE EARLIER ISSUE , THE INCOME OF THE ASSESSEE FROM THE CLUB AS SUSTAINED BY US IS RS. 23 ,25,400/- AND SINCE THE ASSESSEE HAS NO OTHER INCOME AS FOUND DU RING THE SEARCH, ORDER OF CIT(A) REJECTING THE TELESCOPING B ENEFIT TO THE ASSESSEE CANNOT BE SUSTAINED. IN OUR VIEW THE INCO ME OF THE ASSESSEE FOR THE INSTANT YEAR IS SUFFICIENT TO TAKE CARE OF THE SHORT FALL OF RS. 3,94,689/- AND THEREFORE WE DELETE THE ADDITION OF RS. 3,94,689/-. IN RESULT THE THIS GROUND IS ALLOWED I N FAVOUR OF THE ASSESSEE. THE AO IS DIRECTED TO COMPUTE THE TAXABLE INCOME ACCORDINGLY. 11. IN THE ADDITIONAL GROUND RAISED BY THE ASSESSEE FOR AY 2002- 03, THE ISSUE IS AGAINST THE CONFIRMATION OF ADDITI ON BY CIT(A) RELATING TO THE DISCREPANCY OF RS.1,30,731/- TOWARD S THE OPENING BALANCE OF FIXED DEPOSIT MATURED DURING THE YEAR. 11.1 THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THA T THE ADDITIONAL GROUND FILED BY THE ASSESEE MAY KINDLY B E ADMITTED AS THE ISSUE RAISED IN THE SAID GROUND HAD BEEN RAISED BEFORE CIT(A) AND ALSO IS PURELY A QUESTION OF LAW AND PRAYED THA T THE SAME MAY ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 31 KINDLY BE ADMITTED AND ADJUDICATED BY RELYING ON TH E FOLLOWING DECISION:- I) NATIONAL THERMAL POWER CORPORATION V. CIT, 229 I TR 383 (SC) II) JUTE CORPORATION OF INDIA LTD V. CIT, 187 ITR 6 88 (SC) III) AHMEDABAD ELECTRICITY CO. LTD V. CIT, 199 ITR 351 (BOM) 11.2 THE LD. DR ON THE OTHER HAND STRONGLY OPPOSED THE ADMISSION OF THE ADDITIONAL GROUND. CONSIDERING THE SUBMISSI ON OF THE LD. AR AND DR, WE FIND THAT THE THE ISSUE WAS RAISED BEFOR E THE AO AND CIT(A) BUT INADVERTENTLY NOT RAISED IN THE GROUNDS OF APPEAL BEFORE US AND WE THEREFORE ADMIT THE ADDITIONAL GROUND IN VIEW OF THE ABOVE DECISIONS. 11.3 THE BRIEF FACTS ARE THAT AN FDR MATURED DURIN G THE YEAR WHICH WAS MADE ON 07.02.2001 AND THE MATURITY PROCE EDS WERE RS. 1,45,059/-. THE AO ADDED THE MATURITY AMOUNT IN TH E INCOME OF THE ASSESSED WHEREAS THE CIT(A) REDUCED THE ADDIT IONS TO RS. 1,30,731/- BY GRANTING RELIEF OF RS. 14,328/- ON TH E GROUND THAT THE ASSESSEE HAD ALREADY SHOWN THIS INCOME IN THE RETUR N OF INCOME FILED U/S 153A OF THE ACT. IN THIS REGARD, THE STA ND OF THE ASSESSEE HAS BEEN THAT ADDITION WAS MADE FOR THE WANT OF EXP LANATION IN RESPECT OF SOURCE OF PAYMENT MADE BY THE ASSESSEE D URING THE YEAR. IT WAS STATED BY THE LD AR THAT THE ASSESSEE HAS ON LY ONE SOURCE OF INCOME, I.E., THE CLUB INCOME AND ALSO DURING THE C OURSE OF SEARCH PROCEEDINGS, NO OTHER MAJOR SOURCE OF INCOME WAS FO UND BY THE SEARCH TEAM AND THEREFORE SUBMITTED THAT THE TELESC OPING BENEFIT ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 32 SHOULD BE GIVEN AS THE ONLY SOURCE OF INCOME WAS TH E INCOME EARNED FROM THE CLUB. IN OTHER WORDS, HE PLEADED TH AT NO SEPARATE ADDITION WAS REQUIRED FOR AN AMOUNT OF RS.1,30,731/ - BEING DISCREPANCY IN O.B. OF FDR WHICH IS INVESTMENT MA DE BY THE ASSESSEE OUT OF THE INCOME FROM THE CLUB. IN THIS R EGARD, AN INDICATIVE CHART PREPARED BY THE ASSESSEE FOR TELES COPING HAS BEEN PLACED ON RECORD AS ANNEXUE-3 IN THE PAPER-BOOK FIL ED BEFORE US. THE LD. DEPARTMENTAL REPRESENTATIVE RELIED ON THE O RDERS OF AUTHORITIES BELOW ON THIS ISSUE. 11.4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUS ED THE MATERIAL AVAILABLE ON RECORD. IN THE EARLIER ISSUE THE INCOME OF THE ASSESSEE AS SUSTAINED BY US IS RS. 23,25,400/- AND SINCE THE ASSESSEE HAD NO OTHER INCOME AS FOUND DURING THE S EARCH , ORDER OF CIT(A) REJECTING THE TELESCOPING BENEFIT TO THE ASS ESSEE CAN NOT BE SUSTAINED.IN OUR VIEW THE INCOME OF THE ASSESSEE F OR THE INSTANT YEAR IS SUFFICIENT TO TAKE CARE OF THE DIFFERENCE I N OPENING BALANCE OF FDR WHICH MATURE DURING THE YEAR OF RS. 1,30,731/- AND THEREFORE WE DELETE THE ADDITION OF RS. 1,30,731/-. IN RESULT THE THIS GROUND IS ALLOWED IN FAVOUR OF THE ASSESSEE. THE ASSESSING O FFICER IS DIRECTED ACCORDINGLY. 12. IN RESULT THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED AND APPEAL OF THE REVENUE IS DISMISSED. ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 33 ITA NO. 2467/MUM/2012-APPEAL BY ASSESSEE AND ITA NO 2582/M/2012-APPEAL BY THE REVENUE FOR AY 2003-04 13. THE MAIN ISSUE RAISED BY THE ASSESSEE IN GROUND NO. 3 OF ASSESSEES APPEAL FOR AY 2003-04 IS SIMILAR TO THE MAIN ISSUE RAISED BY THE ASSESSEE IN ITA NO.2462/MUM/2012 FOR AY 200 2-03 . THEREFORE, OUR DECISION IN ITA NO.2462/MUM/2012 FOR AY 2002-03 SHALL APPLY TO THIS AS WELL AND THE ADDITION IS DE LETED TO THE EXTENT OF RS. 24,35,050/- OUT OF RS. 50,18,750/- BY SUSTAI NING THE ADDITION OF RS. 25,83,700 . ACCORDINGLY, ISSUE IN GROUND NO.3 IS PARTLY ALLOWED. THE AO IS DIRECTED TO COMPUTE THE T AX ACCORDINGLY. THIS WILL TAKE CARE OF THE CORRESPONDING APPEAL OF THE REVENUE. 14. THE NEXT ISSUE RAISED BY THE ASSESSEE IN GROUND NO. 4 IS AS UNDER:- THE LD CIT (A) HAS ERRED IN NOT GIVING BENEFIT OF T ELESCOPING IN RESPECT OF GIFTS RECEIVED AGAINST THE INCOME FROM T HE SOCIAL CLUB CURRENT OR PREVIOUS ASSESSMENT YEARS. 14.1 THE FACTS ARE THAT THE ASSESSEE RECEIVED GIFT FROM SHRI MUKESH RAM CHAND WHICH WAS ADDED TO THE INCOME OF THE ASSE SSEE BY THE AO AND ALSO CONFIRMED BY THE CIT(A).THE LD AR FOR T HE ASSESSEE SUBMITTED BEFORE US THAT THE ASSESSEE WAS HAVING ON LY ONE SOURCE OF INCOME AS FOUND DURING THE COURSE OF SEARCH FRO M THE SOCIAL CLUB AND THEREFORE THE TELESCOPING BENEFIT SHOULD B E GIVEN AGAINST THE ADDITION MADE ON ACCOUNT OF UNEXPLAINED GIFTS U /S 68 OF THE ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 34 ACT. AS THE SOURCE OF INCOME FROM THE CLUB STANDS O FFERED TO TAX THE BENEFIT OF TELESCOPING PRAYED TO BE ALLOWED TO THE ASSESSEE. THE LD DR ON THE OTHER HAND RELIED ON THE ORDER OF AUTHORI TIES BELOW ON THE ISSUE. 14.2 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUS ED THE MATERIAL AVAILABLE ON RECORD. IN THE GROUND NO 3 TH E INCOME OF THE ASSESSEE AS SUSTAINED BY US IS RS. 25,83,700/- AND SINCE THE ASSESSEE HAS NO OTHER INCOME AS FOUND DURING THE S EARCH , ORDER OF CIT(A) REJECTING THE TELESCOPING BENEFIT TO THE ASS ESSEE CAN NOT BE SUSTAINED. IN OUR VIEW THE INCOME OF THE ASSESSEE FOR THE INSTANT YEAR IS SUFFICIENT TO TAKE CARE OF RS. 2,00,000/- BEING ADDITION MADE U/S 68 OF THE ACT AND THEREFORE WE DELETE THE ADDITION OF RS. 2,00,000/-. IN RESULT THE THIS GROUND IS ALLOWED IN FAVOUR OF THE ASSESSEE. ASSESSING OFFICER IS DIRECTED ACCORDINGL Y. 15. THE ISSUE RAISED BY THE ASSESSEE IN GROUND NO. 5 OF ASSESSEES APPEAL FOR AY 2003-04 RELATES TO NOT GIV ING BENEFIT OF TELESCOPING IN RESPECT TO RS. 3,32,156/- AS DECLAR ED BY THE ASSESSEE AS INCOME ON ACCOUNT OF CASH DISCREPANCIES WHICH IS SIMILAR TO THE CORRESPONDING ISSUE RAISED BY THE AS SESSEE IN ITA NO.2462/MUM/2012 ASSESSMENT YEAR 2002-03 IN GROUND NO.4. THEREFORE, OUR DECISION IN ITA NO.2462/MUM/2012 FOR AY 2002-03 SHALL APPLY TO THIS AS WELL. ACCORDINGLY, GROUND N O.5 IS ALLOWED. THE AO IS DIRECTED ACCORDINGLY. ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 35 16.1 THE ADDITIONAL GROUND RAISED BY THE ASSESSEE F OR AY 2003-04 IS WITH REGARD TO THE ADDITION MADE BY THE ASSESSIN G OFFICER AND CONFIRMED BY THE CIT(A), RELATING TO THE GIFT RECEI VED OF RS.2,00,000/-. 16.2 THE ISSUE RAISED BY THE ASSESSEE IN THE ADDI TIONAL GROUND HAS BEEN DECIDED BY US IN FAVOUR OF THE ASSESSEE VIDE P ARA 14.2 ABOVE AND THEREFORE THIS HAS NOT BEEN ADJUDICATED. 17. IN RESULT THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED AND APPEAL OF THE REVENUE IS DISMISSED. ITA NO. 2463/MUM/2012-APPEAL BY ASSESSEE & ITA NO 2583/M/2012-APPEAL BY THE REVENUE FOR AY 2004-05 18. THE MAIN ISSUE RAISED BY THE ASSESSEE IN GROUND NO. 3 OF ASSESSEES APPEAL FOR AY 2004-05 IS SIMILAR TO THE MAIN ISSUE RAISED BY THE ASSESSEE IN ITA NO.2462/MUM/2012ASSESSMENT Y EAR 2002- 03. THEREFORE, FACTS BEING SIMILAR OUR DECISION IN ITA NO.2462/MUM/2012 FOR AY 2002-03 SHALL APPLY TO THIS AS WELL AND THE ADDITION IS DELETED TO THE EXTENT OF RS. 21,48 ,050/- OUT OF RS. 50,18,750/- BY SUSTAINING THE ADDITION OF RS. 28,7 0,700/- ACCORDINGLY, GROUND NO.3 IS PARTLY ALLOWED. THE AO IS DIRECTED TO COMPUTE THE TAX ACCORDINGLY. THIS WILL TAKE CARE OF THE CORRESPONDING APPEAL OF THE REVENUE. ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 36 19. THE ISSUE RAISED BY THE ASSESSEE IN GROUND NOS. 4 OF APPEAL FOR AY 2004-05 RELATES TO NOT GIVING THE TELESCOPIN G BENEFIT IN RESPECT OF RS. 3,00,944/- DECLARED BY THE ASSESSEE AS INCOME ON ACCOUNT OF CASH DISCREPENCIES WHICH IS SIMILAR TO THE CORRESPONDING ISSUE RAISED BY THE ASSESSEE IN ITA NO.2462/MUM/201 2 FOR ASSESSMENT YEAR 2002-03 IN GROUND NO.4. THEREFORE, OUR DECISION IN ITA NO.2462/MUM/2012 FOR AY 2002-03 IN GROUND NO .4 SHALL APPLY TO THIS AS WELL . ACCORDINGLY, GROUND NO 4 I S ALLOWED . THE AO IS DIRECTED ACCORDINGLY. 20. THE ISSUE RAISED BY THE ASSESSEE IN GROUND NO 5 RELATES TO NOT ALLOWING THE BENEFIT OF TELESCOPING IN RESPECT OF GIFT RECEIVED AGAINST THE INCOME FROM THE SOCIAL CLUB FROM THE CU RRENT AND PREVIOUS ASSESSMENT YEARS AND THE ADDITIONAL GROUND RELATES TO CONFIRMING THE ADDITION BY THE CIT(A) RELATING TO G IFT RECEIVED BY THE ASSESSEE OF RS.3,36,065/-. 20.1 SINCE THE ISSUE RAISED BY THE ASSESSEE IN THE GROUND NO 5 AND ADDITIONAL GROUND IS SIMILAR TO ONE AS DECIDED BY U S IN ITA NO. 2467/MUM/2012 FOR THE ASSESSMENT YEAR 2003-04 IN GR OUND NO 4 AND THEREFORE ,FACTS BEING SIMILAR, FOLLOWING THE SAME REASONING IN PARA 14.2 WE ALLOW THE APPEAL ON THIS ISSUE . AS A RESULT GROUND NO 5 AND ADDITIONAL GROUND ARE ALLOWED. ASSESSING OFF ICER IS DIRECTED ACCORDINGLY. ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 37 21. IN RESULT THE APPEAL OF THE ASSESSED IS PARTLY ALLOWED AND APPEAL OF THE REVENUE IS DISMISSED. ITA NO. 2465/MUM/2012-APPEAL BY ASSESSEE & ITA 2585/M/23012- APPEAL BY REVENUE FOR AY 2006-07 22. THE MAIN ISSUE RAISED BY THE ASSESSEE IN GROUND NO. 3 OF ASSESSEES APPEAL FOR AY 2006-07 IS SIMILAR TO THE MAIN ISSUE RAISED BY THE ASSESSEE IN ITA NO.2462/MUM/2012 ASSESSMENT YEAR 2002- 03. THEREFORE, FACTS BEING SIMILAR, OUR DECISION IN ITA NO.2462/MUM/2012 FOR AY 2002-03 SHALL APPLY TO THIS AS WELL AND THE ADDITION IS DELETED TO THE EXTENT OF RS. 14,75 ,000/- OUT OF RS. 50,18,750/- BY SUSTAINING THE ADDITION OF RS. 35,4 3,750/- ACCORDINGLY, GROUND NO.3 IS PARTLY ALLOWED. THE AO IS DIRECTED TO COMPUTE THE TAX ACCORDINGLY. THIS WILL TAKE CARE OF THE CORRESPONDING APPEAL OF THE REVENUE. 23. THE NEXT ISSUE RAISED BY THE ASSESSEE IN GROUND NOS. 4 TO 6 IS AGAINST THE CONFIRMATION OF ADDITIONS OF RS. 2,2 5,095/- BY CIT(A), RELATING TO JEWELLERY, BY NOT GIVING THE BENEFIT O F TELESCOPING. 23.1 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERU SED THE MATERIAL AVAILABLE ON RECORD. IN THE GROUND NO 3 TH E INCOME OF THE ASSESSEE AS SUSTAINED BY US IS RS. 35,43,750/- AND SINCE THE ASSESSEE HAS NO OTHER INCOME AS FOUND DURING THE S EARCH , ORDER OF CIT(A) REJECTING THE TELESCOPING BENEFIT TO THE ASS ESSEE CANNOT BE SUSTAINED. IN OUR VIEW THE INCOME OF THE ASSESSEE FOR THE INSTANT ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 38 YEAR IS SUFFICIENT TO TAKE CARE OF THE UNEXPLAINED JEWELLERY OF RS. 2,25,095/- AND THEREFORE WE DELETE THE ADDITION OF RS. 2,25,095/-. IN RESULT THE THIS GROUND IS ALLOWED IN FAVOUR OF THE ASSESSED.THE AO IS DIRECTED ACCORDINGLY. 24. THE NEXT ISSUE RAISED IN THE GROUND NO 7 RELATE S TO NOT ALLOWING THE BENEFIT OF TELESCOPING IN RESPECT OF R S.7,67,018/- ON ACCOUNT OF CASH DISCREPANCIES. AN IDENTICAL ISSUE H AS BEEN DECIDED BY US IN ITA NO.2462/MUM/2012 FOR AY 2002-03 AND BY APPLYING OUR DECISION IN THE SAID ITA WE DELETE THE ADDITION OF RS. 7,67,018/- AND THUS ISSUE IS DECIDED IN FAVOUR OF THE ASSESSE. THE AO IS DIRECTED ACCORDINGLY. 25. IN RESULT THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED AND APPEAL OF THE REVENUE IS DISMISSED. ITA NO. 2466/MUM/2012-APPEAL BY ASSESSEE & ITA NO 2586/M/2012 APPEAL BY THE REVENUE FOR AY 2007-08 26. THE MAIN ISSUE RAISED BY THE ASSESSEE IN GROUND NO. 3 OF ASSESSEES APPEAL FOR AY 2007-08 IS SIMILAR TO THE MAIN ISSUE RAISED BY THE ASSESSEE IN ITA NO.2462/MUM/2012 ASSESSMENT YEAR 2002- 03. THEREFORE, FACTS BEING SIMILAR, OUR DECISION IN ITA NO.2462/MUM/2012 FOR AY 2002-03 SHALL APPLY TO THIS AS WELL AND THE ADDITION IS DELETED TO THE EXTENT OF RS. 10,81 ,250/- OUT OF RS. 50,18,750/- BY SUSTAINING THE ADDITION OF RS. 39,3 7,500/- ACCORDINGLY, GROUND NO.3 IS PARTLY ALLOWED. THE AO IS DIRECTED TO ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 39 COMPUTE THE TAX ACCORDINGLY. THIS WILL TAKE CARE OF THE CORRESPONDING APPEAL OF THE REVENUE. 27. THE ISSUE RAISED BY THE ASSESSEE IN GROUND NO. 4 OF APPEAL FOR AY 2007-08 RELATES TO NOT GIVING BENEFIT OF TEL ESCOPING IN RESPECT OF RS.3,21,200/- DECLARED BY THE ASSESSEE AS INCOME ON ACCOUNT OF CASH DISCREPANCIES WHICH IS SIMILAR TO THE CORRESPO NDING ISSUE RAISED BY THE ASSESSEE IN ASSESSMENT YEAR 2002-03 I N GROUND NO.4. THEREFORE, FACTS BEING SIMILAR OUR DECISION I N ITA NO.2462/MUM/2012 FOR AY 2002-03 IN GROUND NO.4 SHAL L APPLY TO THIS AS WELL. ACCORDINGLY, GROUND NO. 4 IS ALLOWED . THE ASSESSING OFFICER IS DIRECTED ACCORDINGLY. 28. IN RESULT THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED AND APPEAL OF THE REVENUE IS DISMISSED. ITA. NO. 581/MUM/2013-APPEAL BY ASSESSEE & ITA NO 1044/M/2013 FOR AY 2008-09 29. THE MAIN ISSUE RAISED BY THE ASSESSEE IN GROUND NO. 1 OF ASSESSEES APPEAL FOR AY 2008-09 IS SIMILAR TO THE MAIN ISSUE RAISED BY THE ASSESSEE IN ITA NO.2462/MUM/2012 OF ASSESSME NT YEAR 2002-03. THEREFORE, FACTS BEING SIMILAR OUR DECISIO N IN ITA NO.2462/MUM/2012 FOR AY 2002-03 SHALL APPLY TO THIS AS WELL AND THE ADDITION IS DELETED TO THE EXTENT OF RS. 1,94, 300/- OUT OF RS. 6,38,050/- BY SUSTAINING THE ADDITION OF RS. 4,43, 750/- ACCORDINGLY, GROUND NO.3 IS PARTLY ALLOWED. THE AO IS DIRECTED TO ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 40 COMPUTE THE TAX ACCORDINGLY. THIS WILL TAKE CARE OF THE CORRESPONDING APPEAL OF THE REVENUE. 30. THE NEXT ISSUE RAISED IN THE GROUND NO 2 IS AG AINST THE UPHOLDING THE ADDITIONS OF RS. 9,71,220/- OUT OF TO TAL ADDITIONS OF RS. 12,00,000/- BY CIT(A) IN RESPECT OF INTERIOR DE CORATION AND PURCHASE OF ELECTRONICS ITEMS. 30.1 THE LD. AO MADE THE ADDITIONS ON THE BASIS OF PHOTOGRAPHS OF THE HOUSE OF THE ASSESSEE STATING THAT HUGE AMOUNT HAD BEEN SPENT ON THE INTERIOR AND FLOORINGS. HE REFERRED THE MATT ER TO DVO U/S 55A OF THE ACT AND THE REPORT OF THE DVO WAS NOT RE CEIVED TILL THE FINALIZATION OF THE ASSESSMENT ORDER AND THUS MADE AN ADHOC ADDITION OF RS. 12,00,000/-( RS. 10,00,000/- FOR T HE INTERIORS AND RS. 2,00,000/- FOR THE PURCHASE OF ELECTRONIC ITEMS . THE LD CIT(A) DELETED THE ADDITIONS TO THE EXTENT OF RS.2,28,780/ - AND SUSTAINED THE BALANCE ADDITION OF RS. 7,21,220/- ON THE BASIS OF DVO REPORT WHILE SUSTAINING THE FULL ADDITION IN RESPECT OF EL ECTRONIC ITEMS OF RS. 2,00,000/-. 30.2 LD AR SUBMITTED BEFORE US THAT AS FAR AS THE ADDITION IN RESPECT OF INTERIOR DECORATION IS CONCERNED, THE DV O STATED IN HIS REPORT THAT RS. 2,55,680/- WAS ON ACCOUNT OF FIXING OF MARBLE FLOORING WHEREAS AS A MATTER OF FACT THE FLAT WAS PURCHASED AND THE COST PAID WAS INCLUSIVE OF MARBLE FLOORING AS WAS E VIDENT FROM THE FROM THE PROPERTY AGREEMENT FILED IN THE PAPER BOOK PAGE NO. 25 QUA SPECIFICATION TO BE PROVIDED. THE LD COUNSEL FU RTHER SUBMITTED ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 41 THAT THE DVO STATED RS. 3,33,920/- TO BE ON ACCOUNT OF FALSE CEILING WITH POP WHEREAS THE SAME ITEM WAS ALSO PROVIDED IN THE FLAT BY THE BUILDER AS PER THE TERMS OF PURCHASE AS WAS EV IDENT FROM THE FROM THE PROPERTY AGREEMENT FILED IN THE PAPER BOOK PAGE NO. 25 QUA SPECIFICATION TO BE PROVIDED. FURTHER THE ASSES SEE HAD ALREADY DECLARED IN HIS RETURN OF INCOME FOR THE AY 2003-04 A SUM OF RS. 2,63,500 AS COST OF FURNITURE A COPY OF WHICH WAS F ILED AS PAGE NO 35 OF THE P.B. THE TOTAL OF ALL THE THREE ITEMS COM ES TO RS. 8,53,100/- WHICH IS MORE THAN THE ESTIMATE MADE BY THE DVO IN HIS REPORT AND THEREFORE THE LD COUNSEL ARGUED THAT THE ADDITION DESERVED DELETION. 30.3 AS REGARDS THE PURCHASE OF ELECTRONIC ITEMS , THE LD AR SUBMITTED THAT THE AO WITHOUT ANY BASIS MADE THE AD DITION OF RS. 2,00,000/- ON ESTIMATE BASIS THAT TOO WITHOUT ANY E VIDENCE AND ALSO IN VIEW OF THE FACT THAT THE ASSESSEE HAS ONLY ONE SOURCE OF INCOME AS FOUND DURING THE SEARCH ACTION FROM THE C LUB AND THEREFORE TELESCOPING BENEFIT SHOULD BE GRANTED TO THE ASSESSEE. 30.4 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIALS ON RECORDS. WE NOTE THAT THE ASSESSING OF FICER MADE ADDITIONS ON THE BASIS OF PHOTOGRAPH OF THE FLAT P URCHASED BY THE ASSESSEE TO THE TUNE OF RS.10,00,000/- TOWARDS INTE RIORS AND RS. 2,00,000/- TOWARDS THE ELECTRONIC ITEMS.THE MATTER WAS REFERRED TO DVO U/S 55A OF THE ACT WHO ESTIMATED THE VALUE OF M ARBLE FLOORING AT RS. 2,55,680 AND FALSE CEILING AT RS. 3,33,920 /- WHEREAS THE ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 42 BOTH THESE ITEMS WERE PROVIDED BY THE BUILDERS AT T HE TIME OF PURCHASE OF FLAT AS PER THE CONDITIONS OF SPECIFICA TIONS IN THE AGREEMENT OF PROPERTY FILED IN THE PAPER BOOK PAGE NO 25.IT IS ALSO SEEN THAT THE ASSESSEE DECLARED THE COST OF FURNITU RE AT RS. 2,63,500/-IN THE ASSESSMENT YEAR 2003-04.THE ADDITI ONS ARE BASED ON ESTIMATE AND CONJECTURES AND WITHOUT ANY BASIS W HICH CAN NOT BE SUSTAINED. THE SAME IS THE POSITION IN RESPECT O F ELECTRONIC ITEMS AT RS. 2,00,000/- WHICH IS ALSO MADE ON ESTIM ATE BASIS. MOREOVER WHEN THE ASSESSEE HAS ONLY ONE SOURCE OF INCOME WHICH HAS BEEN TAXED OTHER ADDITIONS ARE UNWARRANTED AND THEREFORE ORDERED TO BE DELETED AND THE GROUND IS DECIDED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. THE AO IS DIRECTE D ACCORDINGLY. 31. NEXT ISSUE OF DENYING THE BENEFIT OF TELESCOPI NG IS COMMON IN THE GROUND NO 3 AND THE ADDITIONAL GROUND , THEY AR E BING DISPOSED TOETHER. THE GROUND NO 3 RELATES TO REJECTION OF TELESCOPING BENEFIT TO THE ASSESSEE BY CIT(A) IN RESPECT OF RS. 32,00,0 00/- DECLARED BY THE ASSESSE ON ACCOUNT OF CASH DISCREPENCIES WHEREA S THE ADDITIONAL GROUND TAKEN BY THE ASSESSE IS THAT THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE DIRECTED THE AO TO EITHER TAX THE SOURCE OF INCOME FROM THE CLUB OR APPLICATION OF IN COME BEINGS INVESTMENTS MADE. THE APPELLANT PRAYS THAT THE APPR OPRIATE DIRECTIONS MAY PLEASE BE GIVEN FOR THE REDUCTION OF AMOUNT OF R.S 62,47,400/- OFFERED FOR TAX , IN ORDER TO AVOID THE DOUBLE TAXATION. ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 43 31.1 THE LD AR OF THE ASSESSED SUBMITTED THAT THE S EARCH WAS CONDUCTED ON 08.05.2007 AND THEREAFTER THE ASSESSEE IN HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2008-09 DISCLOSED AN AMOUNT OF RS. 62,47,400:- AS UNDER:- CASH SEIZED RS. 32,00,000 JEWELLERY SEIZED RS. 28,97,400 INCOME DECLARED U/S 132(4) RS. 1,50,000 INTEREST INCOME TOTAL R S. 62,47,400 31.2. THE LD AR OF THE ASSESSEE ARGUED THAT RS. 6 2,47,400 WAS NOT POSSIBLE TO BE EARNED IN JUST ONE MONTH AND 8 DAYS . THIS WAS THE INCOME WHICH WAS EARNED BY THE ASSESSEE OVER A PERI OD OF TIME WHICH HAS BEEN ASSESSED TO TAX IN THE EARLIER YEAR S AS INCOME FROM THE CLUB. INCOME HAS TO BE ASSESSED EITHER ON THE B ASIS OF SOURCE OF INCOME OR APPLICATION AND NOT BOTH OTHERWISE IT WOU LD RESULT IN DOUBLE TAXATION WHICH IS NOT PERMISSIBLE UNDER THE ACT. IT WAS THEREFORE PRAYED THAT THE SAME MAY PLEASE BE ORDERE D TO BE REDUCED FROM THE CURRENT INCOME AS DECLARED BY THE ASSESSEE . LD COUNSEL FILED A CHART SHOWING THE TOTAL INCOME AND ADJUSTME NT OF UNEXPLAINED GIFTS, FDRS AND UNEXPLAINED JEWELLARY O N THE BASIS OF TELESCOPING AND BALANCE AVAILABLE WHICH WAS SUFFICI ENT TO COVER THE INCOME DECLARED IN THE CURRENT YEAR AT RS. 62,47,40 0/-.THE SAME WAS OPPOSED BY THE LD DR ON THE GROUND THAT THE ASS ESSEE SUO MOTTO DECLARED THE SAID INCOME IN THE CURRENT YEAR AND THEREFORE THE ASSESSEE DID NOT DESERVE ANY RELIEF ON THIS SCO RE. ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 44 32. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL ON RECORDS. IT IS CORRECT THAT THE INCOME HAS BEEN ASSESSED IN EACH YEAR ON THE BASIS OF SOURCE OF INCOME AND T HE AMOUNT FOUND DURING SEARCH AND SEIZURE ON 08.05.2007 WAS NOT EA RNED IN ONE MONTH AND 8 DAYS BUT WAS EARNED OVER A PERIOD OF TI ME. IT IS ALSO CORRECT THAT WHEN THE SOURCE OF INCOME HAS BEEN ASS ESSED IN EACH YEAR, THE APPLICATION OF INCOME, OR AMOUNT RETURNED BY THE ASSESSEE AMOUNTING TO RS.62,47,400/- IF TAXED WOULD RESULT I N DOUBLE TAXATION. FROM THE CHART FILED BY THE ASSESSEE IT I S CLEAR THAT IF TELESCOPING BENEFIT IS ALLOWED IN RESPECT OF UNEXPL AINED GIFT S, FDRS, AND OTHER INVESTMENTS EVEN THEN ADEQUATE BALANCE RE MAINS WHICH CAN COVER THE ABOVE AMOUNT. WE ARE THEREFORE OF THE CONSIDERED VIEW THAT IF THE AMOUNT OF R.S 62,47,400/- IS ASSES SED IN THE CURRENT YEAR IT WOULD AMOUNT TO DOUBLE TAXATION WHI CH IS NOT PERMISSIBLE UNDER LAW. AS THE INCOME HAS BEEN ASSES SED YEARWISE, WE DIRECT THE AO TO ASSESS THE CURRENT YEAR INCOME AFTER ALLOWING A REDUCTION OF RS.62,47,400/-. THE GROUND NO 3 AND AD DITIONAL GROUND ARE DECIDED IN FAVOUR OF THE ASSESSEE. ASSE SSING OFFICER IS DIRECTED ACCORDINGLY. 33. IN RESULT ALL THE APPEALS OF THE ASSESSEE ARE P ARTLY ALLOWED AND ALL THE APPEALS OF THE REVENUE ARE DISMISSED AS IND ICATED ABOVE. SHRI DHANVINDER SINGH BINDRA ITA NO.979 & 980 TO 985/MUM/2013-APPEAL BY ASSESSEE & ITA NO. 1056 TO 1062 /MUM/2013-APPEAL BY REVENUE FOR AY 200 2-03 TO AY 2008-09. ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 45 34. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN ITA NO.979/MUM/2013 (AY 2002-03) READ AS UNDER: 1 . IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A)S ORDER CONFIRMING AN ADDITION OF RS. 1 3,750/-( I.E RS. 50,18,750/- P.A.) IS ERRONEOUS IN AS MUCH AS I T IS NOT BASED ON ANY SEIZED INCRIMINATING MATERIALS BUT BA SED UPON THE FALLACIOUS APPRECIATION OF FACTUAL INFORMATION , ASSUMPTION, EXTRAPOLATION , CONJECTURES AND SURMISE S AND IS PRIMARILY BASED ON CONFLICTING STATEMENTS OF PERS ONS RECORDED DURING THE SEARCH ON THE APPELLANT ON 08.05.2007 AND IGNORING : A)THE TIMELY RETRACTION OF ONE MR LAKHMICHAND ROHIR A ON 11- 07-07-2007 & 05-09-2007 AFTER THE SEARCH ON 08.05. 2007 AND HIS STATEMENT UNDER CROSS EXAMINATION. B) AFFIDAVIT OF MR A.O. DAVIS. C)STATEMENT OF SUCH PERSONS WERE GIVEN FOR THE FIRS T TIME ALMOST AFTER 30 MONTHS AFTER SEARCH. D)THAT NO CLUB MEMBERS WERE EXAMINED BY THE AO. E)THAT THE COPIES OF THE SEARCH WARRANTS WERE NOT G IVEN TO THE APPELLANT TILL DATE INSPITE OF DEMANDING IT TIME AN D AGAIN. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LD CIT(A) HAS ERRED BY NOT APPRECIATING HER PRE DECESSORS (CIT(A)-39 ORDER DATED 23.01.2012 IN THE SIMILAR CA SE OF MR LAKHMICHAND ROHIRA WHERE THEN THE LD CIT(A) IN PARA 5.11.3 HAD CLEARY DILUTED THE SANCTITY AND RELIANCE OF THE STATEMENTSOF MR MASHRAF ANSARI , MR JAYANTI SAVLA & MR A.O. DAVIS TO ARRIVE AT CONCLUSION , WHICH ADDITION HOWE VER HAS BEEN FOLLOWED IN THE IMPUGNED ORDER. THE GROUNDS OF APPEAL RAISED BY THE REVENUE IN THIS APPEAL (AY 2002-03) READ AS UNDER: ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 46 1. THAT THE LD CIT(A) HAS ERRED IN LAW AND ON FACTS IN ESTIMATING TOTAL GROSS RECEIPTS FROM THE CLUB AT RS . 55,000/- PER DAY SOLELY ON THE STATEMENT OF SHRI LAKHMICHA ND ROHIRA AND IGNORING THE STATEMENT OF THE EMPLOYEES PARTICU LARLY MR A.O. DAVIS WHO ADMITTED DAILY INCOME OF RS. 1.50 T O 2.00 LACS AND 4.00 TO 4.50 LACS ON THE IMPORTANT DAYS AND THE IMPORTANCE OF WHOSE STATEMENT HAS BEEN EMPHASIZED B Y THE LD CIT(A) HIMSELF. 35. THE MAIN ISSUE RAISED BY THE ASSESSEE IN GROUND NO. 1 & 2 OF ASSESSEES APPEALS FOR AY 2002-03 IS SIMILAR TO MAIN ISSUE RAISED BY THE ASSESSEE (LAKHMICHAND ROHIRA) IN ITA NO.2462 /MUM/2012 ASSESSMENT YEAR 2002-03 IN PARA NO. 9.2. THEREFORE, FACTS BEING SIMILAR TO THAT OF ITA NO.2462/MUM/2012 FOR AY 2002 -03 AND SHALL APPLY TO ALL THESE APPEALS OF ASSESSEE WHEREIN WE H AVE GRANTED PARTIAL RELIEF TO THE ASSESSEE AS PER THE CALCULATI ON IN TABLE-C. TABLE-C ITA NO. A.Y. ADDITION DELETED ADDITION SUSTAINED 979/M/13 2002 - 03 RS.26,93,350/ - RS.23,25,400/ - 980/M/13 2003 - 04 RS.24,35,050/ - RS.25,83,700/ - 981/M/13 2004 - 05 RS.21,48,050/ - RS.28,70,700/ - 982/M/13 2005 - 06 RS.18,29,200/ - RS.31,89,550/ - 983/M/13 2006 - 07 RS.14,75,000/ - RS.35,43,750/ - 984/M/13 2007 - 08 RS.10, 8 1 ,250/ - RS.39,37,500/ - 985/M/13 2008 - 09 RS.1,94,300/ - RS.4,43,750/ - ACCORDINGLY, GROUND NO.1 & 2 ARE PARTLY ALLOWED. TH E AO IS DIRECTED TO COMPUTE THE TAX ACCORDINGLY. THIS WILL TAKE CARE OF THE CORRESPONDING APPEALS OF THE REVENUE. ITA NOS.2462 TO 246 & 2465 TO 2467/MUM/2012 & 581/MU M/2013 ITA. NO. 2581 TO 2586/MUM/2012 & 1044/MUM/2013 ASSESSEE-SHRI LAKHMICHAND D. ROHIRA AYS: 2002-03 TO 2008-09 47 36. IN RESULT THE ALL THE APPEALS FILED BY ASSESSEE ARE PARTLY ALLOWED AND ALL THE APPEALS FILE BY REVENUE ARE DIS MISSED. 37. IN COMBINED RESULT, ALL APPEALS FILED BY BOTH T HE ASSESSES ARE PARTLY ALLOWED AND APPEALS FILED BY REVENUE ARE DIS MISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE 30 TH DAY OF NOVEMBER, 2015. SD/- SD/- (SHAILENDRA KUMAR YADAV) (RAJESH KU MAR) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 30/11/2015 TRUE COPY *BT / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. ! / THE RESPONDENT 3. ! ! ' ( ) / THE CIT(A) 4. ! ! ' / CIT CONCERNED 5. #$! %& , ! ! %& , / DR, ITAT, MUMBAI 6. $*+ / GUARD FILE / BY ORDER, / ! (DY./ASSTT. REGISTRAR) ! ! %& , / ITAT, MUMBAI