Smt Madhu Agrawal, RAIPUR (CG) V. Asstt.Commissioner of Income-tax Circle1(2), RAIPUR (CG)

ITSSA 1/BIL/2013

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 1774 (ITAT-RAIPUR)
• Duration Of Justice: 3 year(s) 2 month(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 31-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2001-2002
• Appeal Filed On: 31-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift; Depreciation; Search and seizure; Block assessment
• Section: 153A; 69; 132

Judgement Text

1 IT(SS)A. NOS. 01 TO 07/BPLR/2013 IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. S.NO. IT(SS)A NO. ASSTT. YEAR. 1. 01/BLPR/2013 2001 - 02 2. 02/BLPR/2013 2002 - 03 3. 03/BLPR/2013 2003 - 04 4. 04/BLPR/2013 2004 - 05 5. 05/BLPR/2013 2005 - 06 6. 06/BLPR/2013 2006 - 07 7. 07/BLPR/2013 2007 - 08. SMT. MADHU AGRAWAL, ASSTT. COMMISSIONER OF INCOME - TAX, RAIPUR. VS. CIRCLE - 1(2), RAIPUR. APPELLANT. RESPONDENT. APPELLANT BY : S HRI SUNIL KUMAR AGRAWAL. RESPONDENT BY : SHRI P .K. SINGH. DATE OF HEARING : 1 9 - 02 - 2016 DATE OF PRONOUNCEMENT : 31 ST MARCH, 2016 O R D E R PER SHRI SHAMIM YAHYA, A.M. THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE COMMON ORDER OF LEARNED CIT(APPEALS), RAIPUR DATED 20 - 09 - 2012 PERTAINING TO ASSESSMENT YEARS 2001 - 02 TO 2007 - 08 . THE REVISED GROUNDS OF APPEAL RAISED READ AS UNDER : FOR ASSESSMENT YEAR 2001 - 02: 1. THAT THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS, IN CONFIRMING THE DISALLOWANCE MADE BY THE LD. AO OF RS.67,640 TOWARDS DEPRECIATION ON CAR, WHEN, ON THE DATE OF SEARCH (I.E. ON 23 - 12 - 06), 2 IT(SS)A. NOS. 01 TO 07/BPLR/2013 THE IMPUGNED A.Y. 01 - 02 HAS ALR EADY BEEN CONCLUDED/COMPLETED ON THE EYES OF LAW, SINCE, THE RETURN WAS PROCESSED U/S 143(1)(A), AND AS ON THE DATE OF SEARCH, NO ASSESSMENT WAS PENDING FOR THE AY 01 - 02 AND THUS, THE ASSESSMENT REACHED TO THE FINALITY, AND IN THE ABSENCE OF ANY INCRIMINAT ING MATERIAL OR DOCUMENT FOUND DURING THE COURSE OF SEARCH RELATING TO THE ALLEGED ADDITION, THE ACTION OF THE LD. AO AS WELL AS OF THE LD CIT(A) IN CONFIRMING THE SAME, IS NOT PERMISSIBLE AS PER LAW. 2. THAT THE LD CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS , IN CONFIRMING THE ADDITION MADE BY LD AO OF RS.3600 IN RESPECT OF ACCRUED INTEREST. FOR ASSTT. YEAR : 2002 - 03. 1. THAT THE LD CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS, IN CONFIRMING THE ADDITION OF RS.1,10,000 MADE BY THE LD AO ON THE COUNT OF ALLEGED UNRECORDED INVESTMENT IN KVP U/S 69B, WITHOUT APPRECIATING THE FACTS IN ITS RIGHT PERSPECTIVE AND BY DRAWING INCORRECT/WRONG INFERENCES FROM THE FACTS AVAILABLE ON RECORDS. 2. THAT THE LD CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS, IN CONFIRMING THE ADDITION MADE BY THE LD AO OF RS.10,350 IN RESPECT OF ACCRUED INTEREST ON KVP. FOR ASSTT. YEAR 2003 - 04. 1. THAT THE LD CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS, IN CONFIRMING THE ADDITION MADE BY THE LD AO OF RS.14,380 IN RESPECT OF ACCRUED INTEREST ON KVP. FOR AS STT. YEAR 2004 - 05. 1. THAT THE LD CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS, IN CONFIRMING THE ADDITION OF RS.1,50,000 MADE BY THE LD AO ON THE COUNT OF ALLEGED UNRECORDED INVESTMENT IN KVP U/S 69B, WITHOUT APPRECIATING THE FACTS IN ITS RIGHT PERSPECTIVE AN D BY DRAWING INCORRECT/WRONG INFERENCES FROM THE FACTS AVAILABLE ON RECORDS. 2. THAT THE LD CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS, IN CONFIRMING THE ADDITION MADE BY THE LD AO OF RS.26,685 IN RESPECT OF ACCRUED INTEREST ON KVP. 3 IT(SS)A. NOS. 01 TO 07/BPLR/2013 FOR ASSTT. YEAR 2005 - 06 1. THAT THE LD CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS, IN CONFIRMING THE ADDITION MADE BY THE LD AO OF RS.22,450 IN RESPECT OF ACCRUED INTEREST ON KVP. FOR ASSTT. YEAR 2006 - 07. 1. THAT THE LD CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS, IN CONFIRMING THE ADDITION MADE BY THE LD AO OF RS.37,870 IN RESPECT OF ACCRUED INTEREST ON KVP. FOR ASSTT. YEAR 2007 - 08 1. THAT THE LD CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS, IN CONFIRMING THE ADDITION MADE BY THE LD. AO OF RS.42,270 IN RESPECT OF ACCRUED INTEREST ON KVP . 2. ASSTT. YEAR : 2001 - 02, DISALLOWANCE FOR DEPRECIATION ON CAR RS.67,640/ - . IN THIS CASE ORIGINALLY THE RETURN WAS FILED BY THE ASSESSEE DECLARING TOTAL INCOME OF RS.1,46,505/ - ON 30 - 08 - 2001. SUBSEQUENTLY SEARCH AND SEIZURE OPERATION U/S 132 OF THE I.T . ACT WAS CARRIED OUT AT THE OFFICE, BUSINESS AND RESIDENTIAL PREMISES OF HIRA GROUP OF CASES ON 17 - 11 - 2006. NOTICE WAS ISSUED TO THE ASSESSEE U/S 153A OF THE I.T. ACT. IN THE ASSESSMENT ORDER THE AO MADE THE IMPUGNED ADDITION HOLDING AS UNDER : DURING THE YEAR, THE ASSESSEE HAS CLAIMED DEPRECIATION FOR AN AMOUNT OF RS.67,640/ - ON USE OF CAR. IT IS SEEN THAT THE ASSESEE HAS NOT CARRIED OUT ANY BUSINESS ACTIVITY IN WHICH THE USE OF CAR WOULD HAVE BEEN MADE. THEREFORE, THE CLAIM OF DEPRECIATION ON CAR BY T HE ASSESSEE IS NOT TENABLE AND DISALLOWED. ACCORDINGLY, IT IS ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE. FOR THIS DEFAULT, PENALTY PROCEEDINGS U/S 271(1)(C) OF THE INCOME - TAX A|CT, 1961 ARE BEING INITIATED SEPARATELY. 3. UPON ASSESSEES APPEAL, LEARN ED CIT(APPEALS) AFFIRMED THE ADDITION. THE LEARNED CIT(APPEALS), INTER ALIA, HELD THAT THE APPELLANTS CONTENTION THAT DISALLOWANCE OF DEPRECIATION IS NOT A SUBJECT MATTER OF SECTION 153A IS NOT 4 IT(SS)A. NOS. 01 TO 07/BPLR/2013 SUSTAINABLE FOR THE REASON THAT UNDER THE AMENDED PROVISIONS OF SEARCH ASSESSMENTS, THE TOTAL INCOME OF THE APPELLANT IS COMPUTED AND NOT THE UNDISCLOSED INCOME, AS USED TO BE ASSESSED IN THE CASE OF BLOCK ASSESSMENTS. 4. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. LEARNED COUNSEL OF THE ASSESSEES SUBMI SSION IN THIS REGARD IS AS UNDER : THAT THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS, IN CONFIRMING THE DISALLOWANCE MADE BY THE LD. AO OF RS.67,640 TOWARDS DEPRECIATION ON CAR, WHEN, ON THE DATE OF SEARCH (I.E. ON 23 - 12 - 06), THE IMPUGNED A.Y. 01 - 02 HAS ALREADY BEEN CONCLUDED/COMPLETED ON THE EYES OF LAW, SINCE, THE RETURN WAS PROCESSED U/S 143(1)(A), AND AS ON THE DATE OF SEARCH, NO ASSESSMENT WAS PENDING FOR THE AY 01 - 02 AND THUS, THE ASSESSMENT REACHED TO THE FINALITY, AND IN THE ABSENCE OF ANY INCRIMINATING MATERIAL OR DOCUMENT FOUND DURING THE COURSE OF SEARCH RELATING TO THE ALLEGED ADDITION, THE ACTION OF THE LD. AO AS WELL AS OF THE LD CIT(A) IN CONFIRMING THE SAME, IS NOT PERMISSIBLE AS PER LAW. 5. PER CONTRA LEARNED D.R. RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 6. UPON CAREFUL CONSIDERATION WE FIND THAT FOR THE ASSESSMENT YEAR 2001 - 02 THE ASSESSEE HAS ALREADY FILED A RETURN ORIGINALLY ON 30 - 08 - 2001. HENCE ON THE DATE OF SEARCH NO ASSESSMENT WAS PENDING FOR THE ASSESSMENT YEAR 2001 - 02. IT IS ALSO UNDISPUTED THAT NO INCRIMINATING MATERIAL OR DOCUMENT PERTAINING TO THE ISSUE ON DEPRECIATION ON CAR WAS FOUND DURING THE COURSE OF SEARCH. IN SUCH CIRCUMSTANCES, THE PLEA OF THE ASSESSEES COUNSEL THAT IN CASE OF ASSESSMENTS WHICH HAVE RE ACHED FINALITY, NO ADDITION U/S 153A IS PERMISSIBLE DEHORSE ANY INCRIMINATING MATERIAL FOUND IN THE CASE OF SEARCH IS QUITE COGENT. THE ABOVE PROPOSITION DULY GET SUPPORT FROM THE ITAT SPECIAL B ENCH DECISION IN THE CASE OF ALL CARGO GLOB AL LOGISTIC LTD. 137 IT D 287 . WE FURTHER FIND THAT THE ABOVE PROPOSITION DULY GETS SUPPORT BY THE DECISION OF HONBLE BOMBAY HIGH COURT 5 IT(SS)A. NOS. 01 TO 07/BPLR/2013 IN THE CASE OF CIT VS. CONTINENTAL WAREHOUSING CORPORATION 279 CTR 389. RESPECTFULLY FOLLOWING THE A BOVE PRECEDENT, WE HOLD THAT THE ADDITION MADE WITH REGARD TO DISALLOWANCE OF DEPRECIATION ON CAR IS NOT SUSTAINABLE U/S 153A OF I.T. ACT. ACCORDINGLY WE SET ASIDE THE ORDER S OF THE AUTHORITIES BELOW AND DELETE THE ADDITION. 7. ADDITION ON ACCOUNT OF UNDISCLOSED INVESTMENT IN KVP AND ACC RUED INTEREST THEREON. DURING THE COURSE OF SEARCH , IN THE ASSESSEES LOCKER KVPS OF RS.3,00,000/ - WERE FOUND. ADDITIONS WERE MADE ON ACCOUNT OF UNDISCLOSED INVESTMENT IN KVPS AS UNDER : ASSESSMENT YEAR : 2002 - 03 RS. 1,10,000/ - ASSESSMENT YEAR : 2004 - 05 RS. 1,50,000/ - RS.40,000/ - WORTH OF INVESTMENT WAS NOT ADDED AS THE DATE OF PURCHASE WAS 13 - 02 - 2000 WHICH WAS PRIOR TO THE BLOCK SEARCH PERIOD. ADDITIONS FOR ACCRUED INTEREST ON KVPS WERE MADE AS UNDER : ASSESSMENT YEAR : 2001 - 02 RS. 3600/ - AS SE SSMENT YEAR : 2002 - 03 RS.10,350 / - ASSESSMENT YEAR : 2003 - 04 RS.14,380/ - ASSESSMENT YEAR : 2004 - 05 RS.26,685/ - ASSESSMENT YEAR : 2005 - 06 RS. 22,450/ - ASSESSMENT YEAR : 2006 - 07 RS.37,870/ - ASSESSMENT YEAR : 2002 - 03 RS.42,270/ - THESE KISAN VIKAS PATRAS WERE BEARING THE JOINT NAME OF SHRI SANKET CHOUDHARY AND THE ASSESSEE MRS. MADHU AGRAWA. SHRI SANKET CHOUDHARY IS THE 6 IT(SS)A. NOS. 01 TO 07/BPLR/2013 SON OF ASSESSEES ELDER BROTHER, SHRI MOHAN CHOUDHARY. REGARDING THE SOURCE OF INVESTMENT THE ASSESSEE HAS SUBMITTED THAT CERTAIN AMOUNTS WERE RECEIVED AT THE TIME OF HER MARRIAGE ON 05 - 06 - 1987 BEING MARRIAGE GIFTS. THESE WERE INVESTED IN KVPS AT RAURKELA UNDER THE JOINT NAME OF SANKET CHOUDHARY AND MADHU AGRAWAL. ON MATURITY THESE AMOUNTS WERE REINVESTED IN KVPS FROM TIME TO TIME. HOWEVER, THESE SUBMISSIONS WERE NOT ACCEPTED BY THE AO AND AMOUNTS INVOLVED WERE ADDED AS UNDISCLOSED INCOME IN THE HANDS OF THE ASSESSEE. THE ACCRUED INTEREST THEREON WAS ALSO ADDED AS UNDISCLOSED INCOME OF THE ASSESSEE. THE EXPLANATION OF THE ASSESSEE W AS REJECTED BY THE LEARNED CIT(APPEALS) WHO HELD AS UNDER : I HAVE GONE THROUGH THE OBSERVATIONS OF THE AO AND SUBMISSIONS OF THE APPELLANT. ADMITTEDLY, THE APPELLANT HAS INVESTED THE ABOVE SUMS DURING THE RESPECTIVE ASSESSMENT YEARS AND THE RELEVANT DOC UMENTS WERE SEIZED FROM LOCKER DURING THE COURSE OF SEARCH. EXCEPT STATING THAT THE INVESTMENTS WAS FROM MATURITY VALUE OF INVESTMENTS MADE FROM CASH GIFTS RECEIVED EARLIER, THE APPELLANT HAS NOT FURNISHED ANY SATISFACTORY EXPLANATION. IN ORDER TO SUBSTANTIATE HER CLAIM THE APPELLANT WAS OBLIGED TO GIVE RELEVANT FIGURES IN A TABULAR FORM INDICATING THE ORIGINAL AMOUNT AND DATE OF INVESTMENTS, DATE OF MATURIT Y AND VALUE AND DATE OF RE - INVESTMENT AND AMOUNT IN A CYCLICAL MANNER TO ESTABLISH LIVE LINK BETWEEN THE INITIAL INVESTMENT/MATURITY VALUE AND INVESTMENTS. THE APPELLANT HAS ONLY MADE A BARE CLAIM WITHOUT ANY SUCH DETAILS. UNDER THESE CIRCUMSTANCES, IT IS HELD THAT THE APPELLANT HAS FAILED TO DISCHARGE THE ONUS IN SUPPORT OF HER CLAIM. I HAVE PERUSED COPY OF AFFIDAVIT OF APPELLANTS BROTHER AND I AM OF THE CONSIDERED OPINION THAT LOOKING TO THE NATURE OF CONTENTS, IT HAS LITTLE VALUE IN VIEW OF ABSENCE OF SPECIFIC DETAILS TO SUPPORT THE HER CLAIM. THE APPEAL IS ACCORDINGLY, DISMISSED FOR BOTH THE ASSESSMENT YEARS. 8. AGAINST THE ABOVE ORDER, ASSESSEE IS IN APPEAL BEFORE US. 9. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. LEARNED COUNSEL OF THE A SSESSEE IN THIS REGARD REFERRED TO THE STATEMENT OF THE ASSESSEE RECORDED U/S 132(4) OF THE I.T. ACT DURING THE SEARCH OF THE LOCKER WHERE THE IMPUGNED 7 IT(SS)A. NOS. 01 TO 07/BPLR/2013 KVPS WERE FOUND. IN THE PAPER BOOK PAGE NO.80 IN THE SAID STATEMENT THE ASSESSEE HAS DULY STATED THAT D IFFERENT AMOUNTS WERE RECEIVED AT THE TIME OF HER MARRIAGE AND THESE AMOUNTS WERE INVESTED IN KVPS. SHE ALSO STATED THAT THEY MIGHT HAVE BEEN DISCLOSED TO THE INCOME - TAX DEPARTMENT BUT SHE DID NOT HAVE A CONCLUSIVE KNOWLEDGE. SHE FURTHER SUBMITTED THAT ORI GINALLY WHEN THE AMOUNTS WERE INVESTED AND ACCRUED INTEREST CAN BE INFORMED ONLY AFTER EXAMINING THE RECORDS. 10. REFERRING TO THESE STATEMENTS LEARNED COUNSEL OF THE ASSESSEE STATED THAT THE ASSESSEE HAS DISCLOSED THAT THE KVPS WERE OUT OF THE AMOUNTS RE CEIVED AT THE TIME OF HER MARRIAGE (1987) , AT THE TIME OF SEARCH ITSELF IN THE STATEMENT RECORDED U/S 132(4) . THEREAFTER THEY WERE REINVESTED IN THE JOINT NAMES OF SHRI SANKET CHOUDHARY, SHRI MOHAN CHOUDHARY AND THE ASSESSEE. LEARNED COUNSEL OF THE ASSESSE E FURTHER REFERRED TO THE AFFIDAVIT OF SHRI MOHAN CHOUDHARY IN THIS REGARD RECORDED ON 01 - 12 - 2009 WHERE IN HE DULY CORROBORATED THE ASSESSEES STATEMENT. FURTHER LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ASSESSEES STATEMENT IS DULY CORROBORATED BY THE FACT THAT THERE IS INVESTMENT IN THE JOINT NAMES OF ASSESSEE AND HER BROTHER/BROTHERS SON. LEARNED COUNSEL SUBMITTED THAT IF THESE SUMS WERE UNDISCLOSED INCOME OF THE ASSESSEE BY NO STRETCH OF IMAGINATION SHE WOULD INCLUDE HER BROTHERS NAME AS JO INT HOLDERS IN THE KVPS . HENCE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT ASSES SEES EXPLANATION REGARDING THE SOURCE OF INVESTMENT GIVEN AT THE TIME OF SEARCH ITSELF IS DULY CORROBORATED AND THE ADDITION IS NOT SUSTAINABLE. 11. PER CONTRA LEARNED D.R. RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 12. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND PERUSED THE RECORDS. WE FIND THAT THESE KVPS TOTALLING RS. 3,00,000 / - IN SMALL DENOMINATIONS OF RS.10,000/ AND 5,000/ - WERE FOUND FROM THE LOCKER OF THE ASSESSEE AT THE TIME OF SEARCH. THESE WERE IN THE JOINT NAMES OF ASSESSEES BROTHER/BROTHERS SON AND THE ASSESSEE. THE ASSESSEE HAS DULY STATED AT THE TIME OF SEARCH THA T THE SOURCE OF 8 IT(SS)A. NOS. 01 TO 07/BPLR/2013 THESE INVESTMENTS WERE GIFTS RECEIVED AT THE TIME OF HER MARRIAGE (IN 1987). THE ASSESSEE HAS DULY INDICATED THAT SHE WAS NOT FULLY AWARE THAT THEY HAVE NOT BEEN DISCLOSED TO THE INCOME - TAX DEPARTMENT. THE ASSESSEES BROTHER THEREAFTER HAS ALSO CORROBORATED THE ASSESSEES STATEMENT. THE FACT THAT THESE INVESTMENTS WERE MADE IN THE JOINT NAME OF THE ASSESSEE AND HER BROTHER/BROTHERS SON DULY CORROBORATED THE FACT THAT THE ASSESSEES STATEMENTS THAT THESE WERE RECEIVED AT THE TIME OF MARRIAGE CONTAINS CONSIDERABLE COGENCY. LEARNED CIT(APPEALS) HAS REJECTED THESE SUBMISSIONS ON THE GROUND THAT THE ASSESSEE HAS NOT GIVEN RELEVANT FIGURES IN TABULAR FORM INDICATING THE ORIGINAL AMOUNTS AND DATES OF INVESTMENT/DATES OF MATURITY AND VALUE AND DATE OF INVESTMENT ETC. IN OUR CONSIDERED OPINION THE STATEMENT GIVEN AT THE TIME O F SEARCH ITSELF AND THE FACT THAT THE SAID INVESTMENT WERE IN THE JOINT NAMES DULY CORROBORATE THE ASSESSEES STATEMENT THAT THESE INVESTMENTS IN KVPS WERE OUT OF MARRIAGE GIFTS RECEIVED AT THE TIME OF ASSESSEES MARRIAGE IN 1987 AND ACCORDINGLY IN OUR CONSIDERED OPINION THE ADDITIONS CANNOT BE MADE IN THE IMPUGNED ASSESSMENT YEARS. IN THIS REGARD WE PLACE RELIANCE UPON THE DECISION OF HONBLE APEX COURT IN THE CASE OF CIT VS. P. K. NOORJAHAN 103 TAXMAN 382 (SC) WHEREIN IT IS HELD AS UNDER: THE REVENUES SUBMISSION THAT THE WORD MAY IN SECTION 69 SHOULD BE READ AS SHALL IS NOT ACCEPTABLE. AS POINTED OUT BY THE TRIBUNAL, IN THE CORRESPONDING CLAUSE IN THE BILL WHICH WAS INTRO DUCED IN THE PARLIAMENT, THE WORD SHALL HAD BEEN USED BUT DURING THE COURSE OR CONSIDERATION OF THE BILL AND ON THE RECOMMENDATION OF THE SELECT COMMITTEE, THE SAID WORD WAS SUBSTITUTED BY THE WORD MAY. THIS CLEARLY INDICATES THAT THE INTENTION OF PAR LIAMENT IN ENACTING SECTION 69 WAS TO CONFER A DISCRETION ON THE ASSESSING OFFICER IN THE MATTER OF TREATING THE SOURCE OF INVESTMENT WHICH HAS NOT BEEN SATISFACTORILY EXPLAINED BY THE ASSESSEE AS THE INCOME OF THE ASSESSEE AND THE ITO IS NOT OBLIGED TO T REAT SUCH SOURCE OF INVESTMENT AS INCOME IN EVERY CASE WHERE THE EXPLANATION OFFERED BY THE ASSESSEE IS FOUND TO BE NOT SATISFACTORY. A DISCRETION HAS BEEN CONFERRED ON THE ITO UNDER SECTION 69 TO TREAT THE SOURCE OF INVESTMENT AS THE INCOME OF THE ASSESSE E IF THE EXPLANATION OFFERED BY THE ASSESSEE IS NOT 9 IT(SS)A. NOS. 01 TO 07/BPLR/2013 FOUND SATISFACTORY AND THE SAID DISCRETION HAS TO BE EXERCISED KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE PARTICULAR CASE. IN THE INSTANT CASE, THE TRIBUNAL HAD HELD THAT THE DISCRETION HAD NOT BEEN PROPERLY EXERCISED BY THE ITO AND THE AAC IN TAKING INTO ACCOUNT THE CIRCUMSTANCES IN WHICH THE ASSESSEE WAS PLACED AND THE TRIBUNAL HAD FOUND THAT THE SOURCES OF INVESTMENTS COULD NOT BE TREATED AS INCOME OF THE ASSESSEE. THE HIGH COURT HAD AGREED WI TH THE SAID VIEW OF THE TRIBUNAL. THERE WAS NO ERROR IN THE SAID FINDING RECORDED BY THE TRIBUNAL. 13. IN THE LIGHT OF THE ABOVE SAID DECISION, WE ARE ALSO OF THE OPINION THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THESE INVESTMENTS CANNOT BE TREATED AS UNDISCLOSED INCOME OF THE ASSESSEE FOR THE IMPUGNED ASSESSMENT YEARS. ACCORDINGLY WE DIRECT THAT THE ADDITION BE DELETED. 14. AS REGARDS THE ADDITION ON ACCOUNT OF INTEREST ACCRUED ON KVPS, THE ASSESSEE HAD SUBMITTED BEFORE THE AO THAT THE INTEREST ON KVPS WILL BE OFFERED ON MATURITY ON RECEIPT BASIS BUT THE AO HAD MADE THE ADDITION ON ACCRUED INTEREST ON KVPS ON THE ACCRUAL BASIS. THE ASSESSEE HAS DULY OFFERED IN ASSESSMENT YEAR 2010 - 11 TO 2012 - 13 THE INTEREST ACCRUED ON KVPS ON RECEIPT BASIS. IN THE SE CIRCUMSTANCES IT IS THE PLEA OF THE LEARNED COUNSEL OF THE ASSESSEE THAT SINCE THE ASSESSEE HAS ACCOUNTED FOR THE INTEREST ON KVPS ON RECEIPT BASIS, IT WILL AMOUNT TO DOUBLE TAXATION IF THE SAME ARE AGAIN ADDED IN THE HANDS OF THE ASSESSEE ON ACCRUAL B ASIS IN THE EARLIER ASSESSMENT YEARS. 15. UPON CAREFUL CONSIDERATION WE FIND THAT IT IS UNDISPUTED THAT THE ASSESSEE HAS ACCOUNTED FOR THE INTEREST ON KVPS ON RECEIPT BASIS. IN THESE CIRCUMSTANCES, IN OUR CONSIDERED OPINION, IF THE INTEREST ACCRUED WHICH H AS ALREADY BEEN OFFERED BY THE ASSESSEE ON RECEIPT BASIS IN ASSESSMENT YEARS 2011 - 12 AND 2012 - 13 IS AGAIN ADDED ON ACCRUAL BASIS IN THESE IMPUGNED ASSESSMENT YEARS, IT WILL AMOUNT TO DOUBLE TAXATION. MOREOVER, WE ALSO FIND THAT THE AMOUNTS HAVING BEEN ALRE ADY OFFERED FOR TAXATION THERE IS NO ADVERSE EFFECT ON THE REVENUE. IN THESE 10 IT(SS)A. NOS. 01 TO 07/BPLR/2013 CIRCUMSTANCES, IN OUR CONSIDERED OPINION, UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ADDITIONS ARE NOT SUSTAINABLE. HENCE WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELO W AND DELETE THE ADDITIONS. 16. IN THE RESULT, THESE APPEALS FILED BY THE ASSESSEE STAND ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 31 ST DAY OF MARCH,2016. SD/ - SD/ - (MUKUL K. SHRAWAT) ( SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER. DATED: 31 ST MARCH, 2016. COPY FORWARDED TO : 1. SMT. MADHU AGRWAL, OM KUTIR, JAIL ROAD. FAFADIH, RAIPUR (C.G.) 2. A.C.I.T., CIRCLE - 1(2), RAIPUR , RAIPUR. 3. C.I.T. , RAIPUR. 4. CIT(APPEALS), RAIPUR. 5. D.R., ITAT, RAIPUR. 6. GUARD FILE TRUE COPY BY ORDER ASSIST ANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR. WAKODE