The DCIT, Ratlam V. Smt. Shamim Bano, Mandsaur

ITSSA 105/IND/2013

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 3756 (ITAT-INDORE)
• Duration Of Justice: 5 year(s) 1 month(s) 12 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 31-05-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 19-06-2017
• Assessment Year: misc
• Appeal Filed On: 18-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALCHAND
• Assessee Lawyers: S S DESHPANDE
• Keywords: Unexplained investment; Business income; Salary income; Loose papers; Peak credit; Additional evidence; Reasonable cause; Corroborative evidences
• Section: 131; 90

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE , , BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER . . /. I.T. (S.S.) A. NO. 100 /IND/201 3 [[ / ASSESSMENT YEAR / - PERIOD : 01.04.1996 TO 07.08.2002 SHRI MEHMOOD MANSOORI, 90, GHOSH MANJIL CHAUDHARY COLONY, MANDSAUR VS. ACIT , RATLAM / APPELLANT / RESPONDENT . . ./ PAN: AFIPM2309D . . /. I.T. (S.S.) A. NO. 106 /IND/201 3 [[ / ASSESSMENT YEAR / - PERIOD : 01.04.1996 TO 07.08.2002 DY. CIT, RATLAM VS. SHRI MEHMOOD MANSOORI, 90, GHOSH MANJIL CHAUDHARY COLONY, MANDSAUR / APPELLANT / RESPONDENT MEHMOOD MANSOORI & SHAMIM BANO : 2 : - . . /. I.T. (S.S.) A. NO. 105 /IND/201 3 [[ / ASSESSMENT YEAR / - PERIOD : 01.04.1996 TO 07.08.2002 DY. CIT, RATLAM VS. SMT. SHAMEEM BANO, MANDSAUR / APPELLANT / RESPONDENT . . ./ PAN: AF MPB0621F / APPELLANT /ASSESSEE BY : SHRI S.S.DESHPANDE, CA / RESPONDENT /DEPARTMENT BY : SHRI LAL CHAND, CIT / DATE OF HEARING : 17 .0 5 .2018. / DATE OF PRONOUNCEMENT : 3 1 .0 5 .2018 / O R D E R PER KUL BHARAT , J.M. : APPEALS IN I.T.(SS)A.NOS. 100 & 106/IND/2013 ARE CROSS APPEALS FILED BY THE ASSESSEE AND THE DEPARTMENT , WHICH ARE DIRECTED AGAINST THE ORDER LD. CIT(A), UJJAIN, DATED 28.01.2013 . APPEAL IN I.T.(SS)A.NO. 105/IND/2013 FILED BY THE REVENUE IN THE CASE OF SMT. SHAMEEM BANO IS MEHMOOD MANSOORI & SHAMIM BANO : 3 : - DIRECTED AGAINST THE SEPARATE ORDER OF LD. CIT(A), UJJAIN DATED 28.01.2013. 2 . THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL : - I.T.(SS)A.NO. 100/IND/2013 : (ASSESSEES APPEAL): ( MEHMOOD MANSOORI ) - 1. THAT THE LD. CIT(A) ERRED IN CONFIRMING ADDITION OF RS. 13,25,000/ - RELATING TO GOLD BISCUIT AND GOLD ORNAMENTS AMOUNTING TO RS. 1,50,000/ - AND SILVER ORNAMENTS AT RS. 18,000 / - IGNO RING THE FACTS AND LEGAL POSITION OF THE CASE THEREFORE DESERVES TO BE DELETED. 2. THAT THE LD. CIT(A) ERRED IN CONFIRMING ADDITION OF RS. 15,14,143/ - IN RESPECT OF FDRS IGNORING THE FACTS AND LEGAL POSITION THEREFORE DESERVES TO, BE DELETED. 3. THAT THE L D. CIT(A) ERRED IN CONFIRMING ADDITION OF RS. 1,14,000/ - IN RESPECT OF DONATION TO MEHMOOD MANSOORI & SHAMIM BANO : 4 : - DARGA HAND AND RS. 70,000/ - OWN MONEY IGNORING THE FACTS OF THE CASE HENCE DESERVES TO BE DELETED. 4. THAT THE LD. CIT(A) ERRED IN CONFIRMING ADDITION OF RS. 1,82,700/ - AS RO UGH NOTING ENTRY IGNORING THE FACTS OF THE CASE HENCE DESERVES TO BE DELETED. 3 . THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL : I.T.(SS)A.NO. 106/IND/2013 : (REVENUES APPEAL) : 4 . THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL : - 1 . ON THE FACTS AND CIRCUMSTANCES OF THE CASE, WHETHER THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS. 64,33,580/ - , UNEXPLAINED CASH FOUND DURING SEARCH, ON THE BASIS OF THE MEHMOOD MANSOORI & SHAMIM BANO : 5 : - ADDITIONAL EVIDENCES PRODUCED BY THE ASSESSEE DURING THE COURSE OF APPEL LATE PROCEEDINGS , WHICH WERE NOT PRODUCED DURING THE ASSESSMENT PROCEEDINGS WITHOUT ANY REASONABLE CAUSE AND TO WHICH THE ASSESSEE HIMSELF WAS PRIVY. 2 . ON THE FACTS AND CIRCUMSTANCES OF THE CASE, WHETHER THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS. 1,75,000/ - AND RS. 1,06,420/ - , UNEXPLAINED INVESTMENT IN GOLD & SILVER FOUND DURING SEARCH, ON T HE BASIS OF THE ADDITIONAL EVIDENCES PRODUCED BY THE ASSESSEE DURING THE COURSE OF APPELLATE PROCEEDINGS, WHICH WERE NOT PRODUCED DURING THE ASSESSMENT P ROCEEDINGS WITHOUT ANY REASONABLE CAUSE AND TO WHICH THE ASSESSEE HIMSELF WAS PRIVY. 3 . ON THE FACTS AND CIRCUMSTANCES OF THE CASE, WHETHER THE LD. CIT(A) WAS JUSTIFIED IN DELETING MEHMOOD MANSOORI & SHAMIM BANO : 6 : - THE ADDITION OF 7,50,000/ - , UNEXPLAINED INVESTMENT FOUND TO BE NOTED IN THE DI ARY SEIZED DURING SEARCH, ON THE BASIS OF THE ADDITIONAL EVIDENCES PRODUCED BY THE ASSESSEE DURING THE COURSE OF APPELLATE PROCEEDINGS, WHICH WERE NOT PRODUCED DURING THE ASSESSMENT PROCEEDINGS WITHOUT ANY REASONABLE CAUSE AND TO WHICH THE ASSESSEE HIMSELF WAS PRIVY. 4 . ON THE FACTS AND CIRCUMSTANCES OF THE CASE, WHETHER THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS. 28,960/ - , UNEXPLAINED INVESTMENT IN THE PURCHASE OF AGRICULTURAL LAND IN THE NAME OF SMT. DEVYANI JOSHI FOUND TO BE NOTED IN THE LO OSE PAPERS SEIZED AS LPS - 7 DURING SEARCH, ON THE BASIS OF THE ADDITIONAL EVIDENCES PRODUCED BY THE ASSESSEE DURING THE COURSE OF APPELLATE PROCEEDINGS, WHICH WERE NOT PRODUCED DURING THE MEHMOOD MANSOORI & SHAMIM BANO : 7 : - ASSESSMENT PROCEEDINGS WITHOUT ANY REASONABLE CAUSE AND TO WHICH THE ASSESSEE HIMSELF WAS PRIVY. 5 . WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS RIGHT IN ADMITTING THE ADDITIONAL EVIDENCES WHICH WERE NOT PRODUCED BY THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS AND THE ADMISSION OF WHICH IS NOT IN AC CORDANCE WITH THE PROVISIONS OF RULE 46A(1 ) & 46A(2) OF THE INCOME TAX RULES, 1962. 5 . THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL : - I.T.(SS)A.NO. 105/IND/2013 : ( REVENUES APPEAL IN THE CASE OF SMT. SHAMEEM BANO) : 1 . ON THE FACTS AND CIRCUMSTANCES OF THE CASE, WHETHER THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS. 29,50,000/ - MADE BY THE AO MEHMOOD MANSOORI & SHAMIM BANO : 8 : - ON PROTECTIVE BASIS AS UNEXPLAINED CASH FOUND DURING THE SEARCH, ON THE BASIS OF THE ADDITIONAL EVIDENCES PRODUCED B Y THE ASSESSEE DURING THE COURSE OF APPELLATE PROCEEDINGS, WHICH WERE NOT PRODUCED DURING THE ASSESSMENT PROCEEDINGS WITHOUT ANY REASONABLE CAUSE AND TO WHICH THE ASSESSEE HERSELF WAS PRIVY. 2 . ON THE FACTS AND CIRCUMSTANCES OF THE CASE WHETHER THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS. 1,75,000/ - & RS. 1,06,420/ - MADE BY THE AO ON PROTECTIVE BASIS AS UNEXPLAINED INVESTMENT IN GOLD AND SILVER FOUND DURING SEARCH, ON THE BASIS OF THE ADDITIONAL EVIDENCES PRODUCED BY THE ASSESSEE DURING THE COU RSE OF APPELLATE PROCEEDINGS, WHICH WERE NOT PRODUCED DURING THE ASSESSMENT PROCEEDINGS MEHMOOD MANSOORI & SHAMIM BANO : 9 : - WITHOUT ANY REASONABLE CAUSE AND TO WHICH THE ASSESSEE HERSELF WAS PRIVY. 3 . WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS RIGHT IN ADMITTING THE ADDITIONAL EVIDENCES WHICH WERE NOT PRODUCED BY THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS AND THE ADMISSION OF WHICH IS NOT IN ACCORDANCE WITH THE PROVISIONS OF RULE 46A(1) & 46 A(2) OF THE INCOME TAX RULES, 1962. 6 . FIRST, WE SHALL DECIDE THE ASSESSEE S APPEAL IN I.T.(SS)A.NOS. 100/IND/2013. 7 . THE LD. COUNSEL FOR THE ASSESSEE HAS REITERATED THE FACTS OF THE CASE AND ALSO TAKEN US THROUGH THE FACTS OF THE CASE GROUND - WISE. THE LD. COUNSEL FOR THE ASSESSEE ALSO FILED THE PAPER BOOKS. THE LD. COUNSEL FOR THE ASSESSEE MEHMOOD MANSOORI & SHAMIM BANO : 10 : - SUBMITTED A DETAILED WRITTEN SYNOPSIS, WHICH IS ON RECORD, AND IS REPRODUCED AS UNDER : - THE ASSESSEE IS AN INDIVIDUAL DERIVING INCOME FROM SALARY, RENT, BUSINESS INCOME AND INTEREST BESIDES THIS, HE ALSO DERIVES INCOME FROM AGRICULTURE. THE ASSESSEE WAS EMPLOYED AS A MANAGER WITH SAHAKARI UPBHOKTA BHANDAR, MANDSAUR. A SEARCH WAS CONDUCTED AT THE RESIDENTIAL PREMISES BY THE POLICE DEPARTMENT ON 05.08.2002, AND CASH, JEWELLERY AND LOOSE PAPERS WERE FOUND AND SEIZED BY THE POLICE DEPARTMENT. SUBSEQUENTLY, A SEARCH WAS CONDUCTED BY THE I.T. DEPARTMENT ON 06.08.2002, WHERE CERTAIN JEWELLERY, GOLD BISCUITS FROM THE LOCKERS WERE SEIZED. THE ADI WING ALSO REQUISITIONED U/S. 132(A) ON 06.08.2002, THE VALUABLES SEIZED BY THE POLIC E DEPARTMENT. IN RESPONSE TO NOTICE U/S.158 - BC, THE ASSESSEE FILED THE RETURN FOR THE BLOCK PERIOD DECLARING THE TOTAL UNDISCLOSED INCOME OF RS.NIL. THE ASSESSEE HAD FILED THE I.T. RETURNS REGULARLY AND THE MEHMOOD MANSOORI & SHAMIM BANO : 11 : - CAPITAL WAS DISCLOSED FOR THE A.Y.1996 - 97 AT RS.5,58,036/ - . 1 . DURING THE COURSE OF THE SEARCH, THE POLICE DEPARTMENT SEIZED CASH AMOUNTING TO RS.64,33,580/ - , JEWELLERY & GOLD BISCUITS OF RS.11,92,261/ - , SILVER ORNAMENTS OF RS.1,33,901/ - . THE JEWELLERY AND GOLD BISCUITS O F RS.2,11,3 40/ - & RS.6,17,000/ - , RESPECTIVELY WERE SEIZED BY THE I.T. DEPARTMENT FROM THE LOCKERS OF THE ASSESSEE AND HIS WIFE. IT MAY BE NOTED HERE THAT THE ASSESSEE WAS ABSCONDING RIGHT FROM THE DATE OF THE SEARCH BY THE POLICE AND COULD NOT BE TRACED UP TO THE COMPLETION OF THE ASSESSMENT. EVEN THE NOTICE U/S. 158 BC WAS SERVED BY AFFIXTURE AT THE RESIDENTIAL PREMISES ON 06.08.2003. THE POLICE DEPARTMENT DID NOT TAKE ANY STATEMENT OF THE WIFE OF THE ASSESSEE DURING THE COURSE OF THE SEARCH. NO BOOKS OF AC COUNTS WERE FOUND DURING THE COURSE OF THE SEARCH. MEHMOOD MANSOORI & SHAMIM BANO : 12 : - 2 . DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, IN RESPECT OF THE CASH BALANCE, IT WAS EXPLAINED BY THE ASSESSEE THAT THE SAME REPRESENTS THE ADVANCES RECEIVED FOR THE SALE OF AGRICULTURE LA ND AND OTHER PROPERTIES. THE AGREEMENTS OF SALE ALONGWITH THE AFFIDAVITS OF THE PROSPECTIVE PURCHASERS AND THE PROOF OF THEIR LAND HOLDINGS WERE FILED BEFORE THE LD. AO (PAGE 11 TO 86) (PAGES 23 - 24 AND 44 ARE THE COVERING LETTERS). IT WAS CLAIME D BY THE ASSESSEE THAT A SUM OF RS.36,50,000/ - WAS RECEIVED BY THE ASSESSEE AND A SUM OF RS.29,50,000/ - WAS RECEIVED BY HIS WIFE SMT. SHAMIM MANSOORI AGAINST SUCH SALE AGREEMENTS. A CASH FLOW STATEMENT WAS ALSO PREPARED AND THE ASSESSEE FILED THE BAL ANCE SHEET AS AT 06.08.2002, SHOWING THE ADVANCES RECEIVED ON THE SALE OF VARIOUS IMMOVABLE PROPERTIES (PAGE 198 TO 200). THE ASSESSEE WAS ASKED TO PRODUCE THE SAID PROSPECTIVE PURCHASERS AND IT WAS SUBMITTED THAT THE FARMERS ARE BUSY AND NOTICES U/S. 131 MAY PLEASE BE ISSUED TO THEM (PAGE 56). SUCH NOTICES U/S. 131 WERE MEHMOOD MANSOORI & SHAMIM BANO : 13 : - ISSUED IN THE NAME OF THESE PERSONS. IN RESPONSE TO SUCH NOTICES, THE FARMERS REQUESTED THE LD. AO THAT SINCE IT WAS A RAINY SEASON, AND THE AGRICULTURAL OPERATIONS ARE IN FULL FORCE, TIME OF ONE MONTH MAY PLEASE BE GRANTED. THE AFFIDAVITS OF THESE PERSONS ABOUT ENTERING INTO AN AGREEMENT AND ADVANCES GIVEN TO THE ASSESSEE WERE FILED BEFORE THE LD. AO (PAGE 63 TO 86). IT WAS FURTHER SUBMITTED THAT, PART OF THE GOLD BARS AMO UNTING TO RS.1,75,000/ - & SILVER OF RS.1,06,420/ - WERE PURCHASED DURING THE YEAR OF SEARCH, OUT OF THE SAID CASH ADVANCES RECEIVED. 3 . WHILE FRAMING THE ASSESSMENT, THE LD. AO MADE THE ADDITION OF RS.64,33,580/ - AS AN UNDISCLOSED INCOME. THE ADVERSE INFERENCE WAS DRAWN BY HIM ONLY ON THE FACT THAT THE AGREEMENTS FOR SALE WERE NOT FOUND DURING THE COURSE OF THE SEARCH AND THE WIFE OF THE ASSESSEE DID NOT STATE THIS FACT OF ENTERING INTO AN AGREEMENT OF SALE AND RECEIVING THE CASH ON THIS ACCOUNT. THE PERSONS WITH WHOM THE AGREEMENTS WERE MEHMOOD MANSOORI & SHAMIM BANO : 14 : - ENTERED DID NOT APPEAR BEFORE THE LD. AO IN RESPONSE TO NOTICES U/S.131, NOR DID TH EY INSIST ON REGISTRY OF THESE PROPERTIES. 4 . IN APPEAL, ALL THE PAPERS WERE FILED AND IT WAS SUBMITTED THAT THE ASSESSEE COULD NOT FILE SOME OF THE DOCUMENTS BECAUSE HE WAS ABSCONDING. THE MATTER WAS REMANDED BACK TO THE FILE OF THE LD. AO AND THE FO LLOWING PAPERS WERE FILED : 1 . COPIES OF THE AGREEMENT TO SALE. (PG. 11 - 22) 2 . COPIES OF THE LANDHOLDINGS OF THE PROSPECTIVE PURCHASERS WITH AGREEMENTS FOR PROOF OF SOURCE. (PG. 25 - 55) 3 . ALL THE PROSPECTIVE PURCHASERS WERE PRODUCED BEFORE THE LD. AO AND WHO CATEG ORICALLY ACCEPTED THE TRANSACTION AND THE PAYMENT OF THE MONEY (PAGES574 TO 602). 4 . NOTICES RECEIVED FROM THE ADVOCATE ABOUT REGISTRY OF THE LANDS ON THE BASIS OF THE AGREEMENTS. (PG. 56 - 63) MEHMOOD MANSOORI & SHAMIM BANO : 15 : - 5 . COPIES OF THE AFFIDAVITS FILED DURING THE COURSE OF THE SEARCH AND REQUEST FOR ADJOURNMENT IN THE ORIGINAL ASSESSMENT. (PG. 64 - 90) 6 . COPIES OF THE ASSESSMENT ORDERS ALONGWITH COPIES OF THE RETURNS OF THE PROSPECTIVE PURCHASERS WERE FILED. IN SOME CASES, ASSESSMENTS WERE COMPLETED AFTER ISSUING NOTICE U/S. 148. (PG. 90 - 196) 7 . COPIES OF THE SALE DEEDS EFFECTED SUBSEQUENT TO THE ASSESSMENT ORDER. (PG. 206 - 228) 8 . COPIES OF THE AFFIDAVIT OF SHRI BUNDIVAL ADVOCATE WHO DRAFTED THE SALE DEED. (PG. 201 - 202) 9 . STATEMENTS RECORDED OF THE STAMP VENDOR ON 27.07.2005 (PAGES 603 - 604). 10 . STATEMENT RECORDED OF DEPUTY REGISTRAR, SHRI A.K. SRIVASTAVA ON 23.08.2005 AND ON 31.08.2005 (PAGE. 605 - 606). 11 . THE EXAMINATION OF REGISTER OF THE STAMP VENDOR (PAGE. 607). AFTER CONSIDERING THE REMAND REPORT (PG. B1 TO C7), THE LD. CIT(A) DELETED THE ADDITI ON FOR THE CASH MEHMOOD MANSOORI & SHAMIM BANO : 16 : - FOUND AS ALSO THE JEWELLERY PURCHASED DURING THE YEAR UNDER CONSIDERATION ON THE GROUND THAT THE VARIOUS PAPERS, STATEMENTS RECORDED OF THE PROSPECTIVE PURCHASERS AND THE REGISTERED SALE DEEDS CLEARLY PROVES THE SOURCE OF THE MONEY AND AS S UCH THE ADDITIONS CANNOT BE MADE. 5 . THE LD. AO HAS MADE THE ADDITION OF RS.13,25,000/ - , BEING THE GOLD BISCUITS FOUND. IT WAS SUBMITTED THAT THEY WERE KEPT WITH THE ASSESSEE AS AN `AMANAT' (SECURITY), BY HIS FRIEND SHRI CHAMPALAL PATIDAR FOR KEEP ING IT IN THE BANK LOCKER. SHRI CHAMPALAL PATIDAR DIED ON 25.04.2003 (PG. 291 OF PB). THE AFFIDAVIT OF SHRI CHAMPALAL PATIDAR SWORN BEFORE HIS DEATH 21.06.2002 WAS FILED SHOWING THAT HE HAD KEPT THE GOLD BISCUITS WITH THE ASSESSEE (PG. 292 TO 295). HI S POSSESSION WAS PROVED BY FILING THE WILL OF THIS PERSON (PG. 285 TO 290), WHEREIN THE BISCUITS POSSESSED BY HIM WERE MENTIONED. THE LD. AO HAS MERELY DISBELIEVED THE CONTENTION OF THE ASSESSEE ON THE GROUND THAT THE PURCHASE DOCUMENTS OR THE WILL ET C. MEHMOOD MANSOORI & SHAMIM BANO : 17 : - HAVE NOT BEEN PRODUCED BY THE LEGAL HEIR OF THE DECEASED SHRI CHAMPALAL PATIDAR. SHRI BALMUKUND, THE LEGAL HEIR, WAS ISSUED A SUMMON U/S.131 FOR EXAMINATION AND PRODUCING THE BILLS OR OTHER DOCUMENTS IN CONNECTION WITH THE GOLD BISCUITS. ON THAT DATE, A LETTER WAS SUBMITTED FOR EXTENSION OF TIME ON THE GROUND OF SEVERE ILLNESS OF SHRI BALMUKUND AS HE WAS ADMITTED IN THE HOSPITAL AT AHMEDABAD. HIS AFFIDAVIT WAS ALSO FILED ABOUT 22 GOLD BISCUITS BEING KEPT WITH MEHMOOD MANSOORI. SHRI BALMUKUND ULTIMATELY EXPIRED ON 20.08.2004 (PG. 302 TO 305). NO EXTENSION WAS GRANTED SINCE THE CASE WAS GETTING TIME BARRED. THUS, THE ADDITIONS WERE MADE IN THE HANDS OF THE ASSESSEE. 5A. IN THE REMAND REPORT, THE GRANDSON OF SHRI CHAMPALAL PATIDAR APPEARED BEFORE THE LD . AO WHO CONFIRMED ABOUT KEEPING GOLD BISCUITS BY HIS GRANDFATHER WITH SHRI MOHAMMED MANSOORI AND PRODUCED THE ORIGINAL WILL OF SHRI CHAMPALALJI (PG. 608). THE WEALTH TAX RETURN WAS ALSO FILED BY SHRI MEHMOOD MANSOORI & SHAMIM BANO : 18 : - MUKESH PATIDAR SHOWING THE POSSESSION OF THESE GOLD BIS CUITS IN THE YEAR 2006 FOR THE A.Y. 2004 - 05 & 05 - 06 (PG. 323 TO 337). A SUIT WAS FILED BEFORE THE DISTRICT JUDGE, MANDSAUR AGAINST THE ASSESSEE FOR THE RECOVERY OF THESE GOLD BISCUITS IN WHICH THE UNION OF INDIA AND THE ACIT, RATLAM WERE MADE AS THE CO - DE FENDANTS (PG. 313 TO 322). 5B. THE LD. CIT(A) DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND HELD THAT THE BILLS OF PURCHASE OF THE GOLD BISCUITS WERE NOT FILED AND OBSERVED THAT NO ONE WOULD KEEP THE VALUABLES WITH SOME OTHER PERSON WITHOUT ANY SECURIT Y. THE LD. CIT(A) IN PARA 3.3.3 AT PG. 42 CONFIRMED THE ADDITION. IT IS HUMBLY SUBMITTED THAT LOOKING TO THE AFFIDAVITS AND PAPERS OF THE PARTIES ALONG WITH THE SUIT FILED IN THE DISTRICT COURT, IT IS SUBMITTED THAT THIS IS A GENUINE TRANSACTION AND THE ADDITIONS MADE MAY PLEASE BE DELETED. 6 . THE TOTAL GOLD ORNAMENTS FOUN D WERE 1092.470 GMS VALUING RS. 4,85,974/ - (PG. 5), WHICH INCLUDED GOLD BAR MEHMOOD MANSOORI & SHAMIM BANO : 19 : - OF 350.100 GMS WORTH RS. 1,77,000/ - . SILVER ORNAMENTS OF 6.332 KGS VALUING RS. 38,821/ - AND BULLION OF 18.849 KGS VALUING RS. 1,06,420/ - WERE FOUND. IT WAS SUBMITTED THAT THE GOLD BAR AND SILVER BULLION WERE PURCHASED DURING THE YEAR OUT OF THE ADVANCES RECEIVED FROM THE SALE AGREEMENT OF THE LANDS. BESIDES THIS, 22 GOLD BISCUITS OF RS. 13,25,000/ - WERE ALSO FOUND. THE LD. AO HAS ACCEPTED THE JEWELLERY OF ABOUT 360 GMS. WORTH RS.1 ,50,974/ - AND THE SILVER OF RS.20,831/ - AS REASONABLE AND STRIDHAN OF THE WIFE. BALANCE JEWELLERY HAS BEEN ADDED AT RS.1,60,000/ - & RS.18,000/ - AS UNDISCLOSED INCOME, BESIDES THE ADDITION OF RS. 1,75,000/ - FOR GOLD BAR AND 1,06,420/ - FOR SILVER BULLION. THE LD. CIT(A) ACCEPTED THE SALE AGREEMENT AND ACCORDINGLY ALLOWED THE REDUCTION FOR THE GOLD BAR PURCHASED AT RS. 1,75,000/ - AND SILVER AT RS. 1,06,420/ - . THE ADDITION OF RS. 1,60,000/ - IN THE GOLD BAR AND RS. 18,000/ - IN THE SILVER HAS BEEN MAINTAINED. MEHMOOD MANSOORI & SHAMIM BANO : 20 : - IT IS HUMBLY SUBMITTED THAT THE TOTAL JEWELLERY FOUND WAS ABOUT 1092.470 GMS. THE ASSESSEE'S FAMILY CONSISTS OF HIS WIFE AND FIVE UNMARRIED DAUGHTERS. AS PER THE BOARD'S CIRCULAR, 500 GMS. PER MARRIED LADY AND 250 GMS. FOR UNMARRIED DAUGHTERS HAS BEEN T REATED AS REASONABLE. FOLLOWING THE BOARD'S CIRCULAR, THE JEWELLERY FOUND IS WITHIN THE PRESCRIBED NORMS AND AS SUCH, THE ADDITIONS MADE ON ACCOUNT OF GOLD JEWELLERY MAY PLEASE BE DELETED. REGARDING THE SILVER, IT IS SUBMITTED THAT IT I S A VER Y SMALL QUANTITY AND SHOULD HAVE BEEN ACCEPTED BY THE LD.CIT (A). THE ADDITIONS MADE ON THIS ACCOUNT MAY PLEASE BE DELETED. 7 . THE LD. AO HAS MADE AN ADDITION OF RS.1,85,000/ - ON ACCOUNT OF KISAN VIKAS PATRA FOUND DURING THE COURSE OF THE SEARCH . THE LD. AO REMARKED WHILE MAKING THE ADDITION THAT THE SAME HAVE BEEN PURCHASED AFTER THE A.Y.1996 - 97. IT WAS SUBMITTED BEFORE THE LD. AO THAT THE KVPS' WERE PURCHASED DURING THE YEAR 1993 - 94 AND THEY WERE RENEWED/ REPURCHASED ON MATURITY SUBSEQUENTLY AF TER 1996 - 97. MEHMOOD MANSOORI & SHAMIM BANO : 21 : - THE LD. AO DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE ON THE GROUND THAT THE PROOF OF ORIGINAL PURCHASE HAS NOT BEEN FILED AND AS SUCH NO CREDIT CAN BE GIVEN FOR THE PURCHASES MADE EARLIER TO THE BLOCK PERIOD. IT IS HUMBLY SUBMITTED T HAT THE LD. AO DID NOT BOTHER TO VERIFY THE FACTUAL POSITION FROM THE POST OFFICE. THE LD. CIT (A) DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND MAINTAINED THE ADDITION OF RS. 1,48,000/ - . 8 . THE LD. AO HAS MADE THE ADDITION OF RS.1,39,300/ - ON ACCOUNT OF MONTHLY DEPOSITS IN THE POST OFFICE RECURRING DEPOSIT ACCOUNT. IT WAS SUBMITTED BEFORE THE LD. AO THAT THESE ARE SMALL DEPOSITS WHICH HAVE BEEN MADE OUT OF THE INCOME OF BOTH THE HUSBAND AND WIFE INCLUDING THE AGRICULTURE INCO ME. THE ASSESSEE IS SHOWING SUBSTANTIAL INCOME IN BOTH THE CASES AND AS SUCH THE SMALL DEPOSITS MADE COULD BE ATTRIBUTED TO THE INCOME EARNED BY THE ASSESSEE. THE LD. CIT (A) DELETED THE ADDITION OF RS. 39,400/ - IN MEHMOOD MANSOORI & SHAMIM BANO : 22 : - THE NAME OF MARRIED DAUGHTER AND MAINTAINED THE ADDITION OF RS. 1,09,600/ - . 9 . THE LD. AO HAS MADE THE ADDITION OF RS.35,05,501/ - ON ACCOUNT OF F.DS' TAKEN IN THE NAME OF VARIOUS FAMILY MEMBERS. IT WAS SUBMITTED, THAT F.DS' WORTH RS.4,80,000/ - ARE TAKEN PRIOR TO T HE BLOCK PERIOD. SIMILARLY, THE INTEREST ACCRUED ON THESE FDRS' PRIOR TO THE BLOCK PERIOD CANNOT BE INCLUDED AS UNDISCLOSED INCOME. THE LD. CIT (A) DELETED THE ADDITION OF RS. 19,91,358/ - ON THE BASIS OF THE REMAND REPORT THAT SOME OF THE FDRS ARE TAKEN PRIOR TO THE BLOCK PERIOD AND OTHERS ARE DOUBLY INCLUDED. THE LD. CIT (A) HAS MAINTAINED THE ADDITION 15,14,143/ - AS UNEXPLAINED FDRS (PARA 3.7.3 AND 3.7.4, PG. 60 TO 62). IT IS HUMBLY SUBMITTED THAT THESE FDRS ARE TAKEN IN THE NAME OF MAJOR DAUGHTERS AN D CANNOT BE INCLUDED IN THE HANDS OF THE ASSESSSEE. MEHMOOD MANSOORI & SHAMIM BANO : 23 : - 10 . THE LD. AO HAS MADE THE ADDITIONS OF RS.9,31,380/ - , RS.7,50,000/ - & RS.1,14,000/ - ON ACCOUNT OF THE ENTRIES IN THE DIARY AND THE DONATIONS MADE TO AJMER SHARIF. IT WAS EXPLAINED TO THE LD. AO THAT THE ASSESSEE HAS NOT RECEIVED ANY PAYMENT PERSONALLY ON ACCOUNT OF ENTRIES IN THE DIARY. THE ASSESSEE WAS LOOKING AFTE R THE CONSTRUCTION WORK ON BEHALF OF TODIWALE BABA'S DARGAHA, AS A SOCIAL WORKER FOR CHARITABLE CAUSE. ALL THESE ENTRIES PERTAIN TO THE WORK PERFORMED AT THE DARGAHA. IT WOULD BE SEEN THAT THE ENTRIES ARE IN THE NAME OF `ALLAH', DEEWANE SHAH, TODIW ALE, JAKAT, ETC. A CERTIFICATE FROM WAKF COMMITTEE WAS ALSO FILED, STATING THAT ALL THESE ENTRIES PERTAIN TO THE DARGAHA CONSTRUCTION WORK. THE WAKF COMMITTEE FILED THE COPY OF THE REGISTER GIVING THE DETAILS OF MONEY COLLECTED AND SPENT FOR TODE WALE DARGAHA. THE CHARITIES WERE BEING RECEIVED AND THE CONSTRUCTION WORK WAS UNDERTAKEN. IN THESE DIARIES IT WOULD BE SEEN THAT THE ENTRIES ABOUT RETI, GITTI, SARIYA, TROLLY TRANSPORTATION, ETC ARE MEHMOOD MANSOORI & SHAMIM BANO : 24 : - BEING MADE TO SHOW, THAT IN FACT THE CONSTRUCTI ON WORK WAS UNDERTAKEN. THE ENTRIES IN THE NAME OF ALLAHA, DEWANE SHAH ARE ALSO RECORDED IN THIS DIARY. SIMILARLY, THE DONATIONS PAID TO AJMER SHARIF ARE ALSO ENTERED IN THIS DIARY. THIS PAYMENT IS ALSO MADE ON BEHALF OF THE DARGAHA. THE RECEIPT HAS BEEN ISSUED IN THE NAME OF THE ASSESSEE BECAUSE OF THE REASON THAT THE ASSESSEE HAD SENT THE MONEY ON THE INSTRUCTION OF THE DARGAHA COMMITTEE. SIMILARLY, THE ENTRY OF RS.7,50,000/ - IN THE NAME OF GAUTAM IS APPEARING WHICH HAS ALSO BEEN TREATED AS UNDISCLOSED INCOME OF THE ASSESSEE, ON THE GROUND THAT THE SAME HAS BEEN PAID TO THE SAID PERSON OUT OF THE UNDISCLOSED INCOME. IT WAS SUBMITTED THAT THIS AMOUNT REPRESENTS THE EXPENDITURE INCURRED ON THE CONSTRUCTION WORK OF DARGAHA. THE FIGUR E OF EXPENDITURE OF RS.7,50,000/ - , UPTO THE DATE OF THE ENTRY I.E. 04.09.1999 HAS BEEN EXPLAINED TO MR. GAUTAM, WHO IS A SOCIAL WORKER AND WHO IS ALSO LOOKING AFTER THE DONATIONS AND THE CONSTRUCTION OF MEHMOOD MANSOORI & SHAMIM BANO : 25 : - THE DARGAHA. UNDER NO CIRCUMSTANCES, TH E ADDITION COULD BE MADE IN THE HANDS OF THE ASSESSEE, SINCE IT PERTAINS TO THE DARGAHA TRANSACTIONS. THE LD. CIT (A) HAS DELETED THE ADDITION OF RS. 7,50,000/ - , VIDE PARA NO. 3.8.2. THE LD. CIT (A) HOWEVER MAINTAINED THE ADDITION OF RS. 1,14,000/ - B EING THE DONATION TO AJMER SHARIF, BY NOT ADMITTING THE CERTIFICATE FROM THE DARGAHA COMMITTEE. SIMILARLY, THE LD. CIT (A) HAS MAINTAINED THE ADDITION OF RS. 1,82,700/ - ON ACCOUNT OF EXPENSES NOTED IN THE REGISTER OF DARGAHA COMMITTEE ON THE BASIS OF THE W ORKING OF THE PEAK THEORY. IT IS HUMBLY SUBMITTED THAT THIS REGISTER IS TOTALLY MAINTAINED FOR THE INCOME AND EXPENSES OF TODE WALE BABA DARGAHA AND AS SUCH NO ADDITION COULD BE MADE ON THIS ACCOUNT. THE ADDITION MADE MAY PLEASE BE DELETED. 11 . THE LD. AO HAS MADE THE ADDITION OF RS.70,000/ - , BEING THE ALLEGED AMOUNT PAID FOR THE PURCHASE OF FLAT IN THE NAME OF SMT. RAZIA NOOR. IT WAS SUBMITTED MEHMOOD MANSOORI & SHAMIM BANO : 26 : - BEFORE THE LD. AO THAT SMT. RAZIA NOOR IS A MARRIED DAUGHTER OF THE ASSESSEE AND THE ASSESSEE H AS PAID A SUM OF RS.1,85,000/ - TO THE BUILDER AND HAS DEBITED THE SAME IN THE BOOKS. THE BALANCE PAYMENT OF RS.70,000/ - FOR FIXTURES ETC HAS BEEN MADE BY SMT. RAZIA AND HER HUSBAND. UNDER NO CIRCUMSTANCES ANY ADDITION CAN BE MADE IN THE HAN DS OF THE ASSESSEE, SINCE THE FLAT IS IN THE NAME OF THE DAUGHTER AND THE AMOUNT IN QUESTION HAS BEEN PAID BY HER. THE LD. CIT(A) HAS MAINTAINED THE ADDITION VIDE PARA NO. 3.10.2 ON THE GROUND THAT NO DOCUMENTARY EVIDENCE IS FILED THAT THE DAUGHTER HAS INVESTED THE MONEY. IT IS HUMBLY SUBMITTED THAT THE FLAT IS IN THE NAME OF MARRIED DAUGHTER AND NO ADDITION CAN BE MADE ON THIS ACCOUNT. 12 . THE LD. AO HAS MADE THE ADDITION OF RS.28,960/ - ON ACCOUNT OF REGISTRATION DEED FOUND IN THE NAME OF SMT. DEVYANI JOSHI. THE SAID PURCHASE AND SALE HAS BEEN TREATED AS A BENAMI TRANSACTION. THE MEHMOOD MANSOORI & SHAMIM BANO : 27 : - REGISTRATION SALE DEED ITSELF CONTAINS HER PHOT OGRAPH AND HER AFFIDAVIT HAS ALSO BEEN FILED. HER IDENTITY IS THUS PROVED. THE DOCUMENTS WERE LYING AT THE ASSESSEE'S PLACE BECAUSE OF THE REASON THAT SMT. DEVYANI JOSHI WANTED TO DISPOSE OF THE PROPERTY WITH THE HELP OF THE ASSESSEE. THE LD. C IT (A) DELETED THE ADDITION IN PARA 3.13.1, PG.77. 8 . GROUND NO. 1 RELATES TO THE ADDITION OF RS. 13,25,000/ - MADE BY THE AO AND CONFIRMED BY THE LD. CIT(A) ON ACCOUNT OF GO LD BISCUIT AND GOLD/SILVER ORNAMENTS. 9 . THE FACTS RELATING TO THIS GROUND ARE THAT THE LD. AO MA DE THE ADDITION OF RS. 13,25,000/ - , BEING THE GOLD BISCUITS FOUND. IT WAS SUBMITTED THAT THEY WERE KEPT WITH THE ASSESSEE AS AN `AMANAT' (SECURITY), BY HIS FRIEND SHRI CHAMPALAL PATIDAR FOR KEEPING IT IN THE BANK LOCKER. MEHMOOD MANSOORI & SHAMIM BANO : 28 : - SHRI CHAMPALAL PATIDAR DIED ON 25.04.2003. THE AFFIDAVIT OF SHRI CHAMPALAL PATIDAR SWORN BEFORE HIS DEATH 21.06.2002 WAS FILED SHOWING THAT HE HAD KEPT THE GOLD BISCUITS WITH THE ASSESSEE . HIS POSSESSION WAS PROVED BY FILING THE WILL OF THIS PERSON, WHEREI N THE BISCUITS POSSESSED BY HIM WERE MENTIONED. THE LD. AO HAS MERELY DISBELIEVED THE CONTENTION OF THE ASSESSEE ON THE GROUND THAT THE PURCHASE DOCUMENTS OR THE WILL ETC. HAVE NOT BEEN PRODUCED BY THE LEGAL HEIR OF THE DECEASED SHRI CHAMPALAL PATIDA R. SHRI BALMUKUND, THE LEGAL HEIR, WAS ISSUED A SUMMON U/S.131 FOR EXAMINATION AND PRODUCING THE BILLS OR OTHER DOCUMENTS IN CONNECTION WITH THE GOLD BISCUITS. ON THAT DATE, A LETTER WAS SUBMITTED FOR EXTENSION OF TIME ON THE GROUND OF SEVERE ILLNESS OF SH RI BALMUKUND AS HE WAS ADMITTED IN THE HOSPITAL AT AHMEDABAD. HIS AFFIDAVIT WAS ALSO FILED ABOUT 22 GOLD BISCUITS BEING KEPT WITH MEHMOOD MANSOORI. SHRI BALMUKUND ULTIMATELY EXPIRED MEHMOOD MANSOORI & SHAMIM BANO : 29 : - ON 20.08.2004 . NO EXTENSION WAS GRANTED SINCE THE CASE WAS GETTING TIME B ARRED. THUS, THE ADDITIONS WERE MADE IN THE HANDS OF THE ASSESSEE. IN THE REMAND REPORT, THE GRANDSON OF SHRI CHAMPALAL PATIDAR APPEARED BEFORE THE LD. AO WHO CONFIRMED ABOUT KEEPING GOLD BISCUITS BY HIS GRANDFATHER WITH SHRI MOHAMMED MANSOORI AND PRODUCED THE ORIGINAL WILL OF SHRI CHAMPALALJI . THE WEALTH TAX RETURN WAS ALSO FILED BY SHRI MUKESH PATIDAR SHOWING THE POSSESSION OF THESE GOLD BISCUITS IN THE YEAR 2006 FOR THE A.Y. 2004 - 05 & 05 - 06 . A SUIT WAS FILED BEFORE THE DISTRICT JUDGE, MANDSAUR AGAIN ST THE ASSESSEE FOR THE RECOVERY OF THESE GOLD BISCUITS IN WHICH THE UNION OF INDIA AND THE ACIT, RATLAM WERE MADE AS THE CO - DEFENDANTS . THE ASSESSEE WENT IN APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND HEL D THAT THE BILLS OF PURCHASE OF THE GOLD BISCUITS WERE NOT FILED AND OBSERVED THAT NO ONE WOULD KEEP THE VALUABLES MEHMOOD MANSOORI & SHAMIM BANO : 30 : - WITH SOME OTHER PERSON WITHOUT ANY SECURITY. THE LD. CIT(A) CONFIRMED THE ADDITION. AGAINST THIS, THE ASSESSEE IS IN APPEAL BEFORE US. 10 . T H E LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSION AND CONTENDED THAT THE AFFIDAVIT BY ASSESSEES FRIEND SHRI CHAMPALAL PATIDAR FOR KEEPING IT IN THE BANK LOCKER. SHRI CHAMPALAL PATIDAR DIED ON 25.04.2003. THE AFFIDAVIT OF SHRI CHAMPALAL WAS SWORN BE FORE HIS DEATH STATING THAT HE HAD KEPT THE GOLD BISCUITS WITH THE ASSESSEE. THE AFFIDAVIT OF SHRI BALMUKUND, LEGAL HEIR , WHO WAS ISSUED SUMMON U/S 131 FOR EXAMINATION AND PRODUCING THE BILLS OR OTHER DOCUMENTS IN CONNECTION WITH THE GOLD BISCUITS , BUT SHR I BALMUKUND WAS ADMITTED IN AHMEDABAD DUE TO ILLNESS. HIS AFFIDAVIT WAS ALSO FILED ABOUT 22 GOLD BISCUITS BEING KEPT WITH MEHMOOD MANSOOR . THE LD. COUNSEL FOR THE ASSESSEE PRAYED THAT THIS IS A GENUINE MEHMOOD MANSOORI & SHAMIM BANO : 31 : - TRANSACTION AND ALSO SUBSTANTIATED BY PROOF OF EVIDENC E. THE ADDITION MAY PLEASE BE DELETED. 11 . THE LD. DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES . 12 . WE HAVE CONSIDERED THE FACTS, RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS STATED BY THE ASSESSEE THAT THE GOLD BISCUITS WERE KEPT AS AMANAT AND THE LEGAL HEIRS HAVE CLAIMED THIS PROPERTY BY FILING A SUIT BEFORE THE COMPETENT COURT. IN OUR CONSIDERED VIEW, THE LD. CIT(A) OUGHT TO HAVE FOUND OUT WHETHER THE ISSUE OF OWNERSHI P OF PROPERTY HAS BEEN DECIDED BY THE COMPETENT COURT OR NOT. IT IS TRUE THAT THE POSSESSOR OF THE PROPERTY IS REQUIRED TO DISCHARGE THE ONUS QUA THE OWNERSHIP OF THE PROPERTY. IN THE PRESENT CASE, WHERE THE ASSESSEE HAS FILED DOCUMENTARY EVIDENCE , IN SUP PORT OF HIS CLAIM THAT THE PROPERTY, NAMELY, GOLD BISCUITS DO NOT BELONG TO HIM, MORE PARTICULARLY, WHEN THE LEGAL HEIRS OF THE DECEASED SHRI MEHMOOD MANSOORI & SHAMIM BANO : 32 : - CHAMPALAL PATIDAR HAVE CLAIMED THIS PROPERTY . THIS FACT OF THE PROPERTY BEING HANDED OVER TO THE ASSESSEE IS ALSO RECORDED IN A W ILL EXECUTED BY SHRI CHAMPALAL PATIDAR. THE LD. CIT(A) OUGHT TO HAVE EXAMINED THE WITNESSES OF THE WILL TO VERIFY THE VERACITY OF THE WILL. THE ENTIRE FINDING OF THE LD. CIT(A) IS BASED ON PURE PRESUMPTION THAT IS NO SANE PERSON WOULD HAND OVER VALUABLES TO OTHER PERSON WITHOUT SECURITY. IN OUR VIEW, EVEN TH ERE MAY BE VERY STRONG SUSPICION THAT NEEDS TO BE VERIFIED BEFORE MAKING ADDITION IN THIS RESPECT. THE REVENUE HAS NOT BROUGHT ANY MATERIAL ON RECORD SUGGESTING THAT THE DOCUMENTARY EVIDENCES AS FURNISHED BY THE ASSESSEE ARE FALSE. WE, THEREFORE, UNDER THE FACTS OF THE PRESENT CASE RESTORE THIS ISSUE TO THE FILE OF THE AO TO VERIFY WHETHER THE LEGAL HEIRS OF SHRI CHAMPALAL PATIDAR HAVE CLAIMED THE OWNERSHIP OF THE PROPERTY IN QUESTION. FURTHER, HE WOULD ALSO EXAMINE THE WITNESSES OF THE WILL TO VERIFY WHETHER THE WILL IN QUESTION WAS EXECUTED MEHMOOD MANSOORI & SHAMIM BANO : 33 : - BY SHRI CHAMPALAL PATIDAR OR NOT. THE AO WOULD ALSO FIND OUT WHETHER THE HON'BLE COURT HAS DECIDED THE ISSUE OF OWNERSHIP OR NOT. IF IT IS DECIDED IN FAVOUR OF THE LEGAL HEIRS OF SHRI CHAMPALAL PATIDAR, THE AO WOULD DELETE THE ADDITION. 13 . GROUND NO. 2 RELATES TO ADDITION OF RS. 15,14,143/ - MADE BY THE AO AND CONFIRMED BY THE LD. CIT(A) IN RESPECT OF FDRS . 14 . THE FACTS RELATING TO THIS GROUND ARE THAT T HE AO MADE THE ADDITION OF RS.35,05,501/ - ON ACCOUNT OF F.D .R S' TAKEN IN THE NAME OF VARIOUS FAMILY MEMBERS. IT WAS SUBMITTED, THAT F.DS' WORTH RS.4,80,000/ - WERE TAKEN PRIOR TO THE BLOCK PERIOD. SIM ILARLY, THE INTEREST ACCRUED ON THESE FDRS' PRIOR TO THE BLOCK PERIOD COULD NOT BE INCLUDED AS UNDISCLOSED INCOME. THE LD. CIT (A) DELETED THE ADDITION OF RS. 19,91,358/ - ON THE BASIS OF THE REMAND REPORT THAT SOME OF THE FDRS WERE TAKEN PRIOR TO THE BLOC K PERIOD AND OTHERS WERE DOUBLY INCLUDED. THE ASSESSEE WENT MEHMOOD MANSOORI & SHAMIM BANO : 34 : - IN APPEAL BEFORE THE LD. CIT(A), WHO MAINTAINED THE ADDITION 15,14,143/ - AND HELD THAT THE FDRS ARE UNEXPLAINED . 15 . THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AND SUBMITTED THAT THESE FDRS ARE TAKEN IN THE NAME OF MAJOR DAUGHTERS AND CANNOT BE INCLUDED IN THE HANDS OF THE ASSESSSEE. THE LD. COUNSEL FOR THE ASSESSEE PRAYED THAT THE SAME MAY PLEASE BE DELETED. 16 . THE LD. DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES AND CONTENDED THAT THE LD. CIT(A) HAS RIGHTLY MAINTAINED THE ADDITION. 17 . WE HAVE CONSIDERED THE FACTS, RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS STATED THAT OUT OF THE ADDITION OF RS. 35,05,501/ - , FIXED D EPOSIT WORTH OF RS. 4,80,000/ - WERE MADE BEFORE THE BLOCK PERIOD AND THE INTEREST ACCRUED THEREON ALONGWITH THE INVESTMENT IN FDR CANNOT BE INCLUDED AS UNDISCLOSED INCOME. HOWEVER, MEHMOOD MANSOORI & SHAMIM BANO : 35 : - THIS HAS BEEN DELETED BY THE LD. CIT(A). THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT SOME OF THE FDRS WERE INCLUDED DOUBLY IN THE BLOCK PERIOD AS THE FDRS WERE MADE PRIOR TO THE BLOCK PERIOD. IT IS ALSO CONTENDED THAT THE FDRS WERE MADE IN THE NAME OF MAJOR DAUGHTERS CANNOT BE INCLUDED IN THE HANDS OF THE ASSESSEE. WE FIND M ERIT IN THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. THEREFORE, THE ISSUE IS RESTORED TO THE FILE OF THE AO WITH THE DIRECTION TO FIND OUT AS TO WHAT ARE THE FDRS WERE MADE PRIOR TO THE BLOCK PERIOD, WHICH HAS BEEN INCLUDED IN THE IMPUGNED ADDITION. SUCH FDRS SHOULD BE EXCLUDED AND ADDITION TO BE RECOMPUTED . FURTHER, THE AO WOULD ALSO VERIFY THE SOURCE OF INCOME OF THE MAJOR DAUGHTERS. IN THE EVENT THAT THE AO IS SATISFIED THAT THESE FDRS BELONGED TO MAJOR DAUGHTERS OF THE ASSESSEE AND THEY WERE MADE OUT OF THEIR OWN SOURCE, THE AO WOULD DELETE THE ADDITION. MEHMOOD MANSOORI & SHAMIM BANO : 36 : - 18 . GROUND NO. 3 RELATES TO ADDITION OF RS. 1,14,000/ - IN RESPECT OF DONATION TO DARGAH A AND RS. 70 , 000/ AS OWN MONEY. 19 . FACTS RELATING TO THIS GROUND ARE THAT THE AO MADE ADDITION AT RS. 1,14,000/ - TREATING THE SAME AS DONATION OUT OF AGRICULTURAL INCOME. IN THE RETURN THE ASSESSEE HAS NOT SHOWN DONATION OF RS. 1,14,000/ - AND THE SAME IS ADDED TO THE TAXABLE INCOME OF THE ASSESSEE. THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A), WHO DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND MAINTAINED THE ADDITION OF RS. 1,14,000/ - . 20 . THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT THE LD. CIT(A) HAS MAINTAINED THE ADDITION OF RS. 1,14,000/ - BEING THE DONATION TO AJMER SHARIF BY NOT ADMITTING T HE CERTIFICATE FROM DARGAHA COMMITTEE. THE ADDITION MAY PLEASE BE DELETED. MEHMOOD MANSOORI & SHAMIM BANO : 37 : - 21 . FACTS RELATING TO ADDITION MADE AT RS. 70,000/ - ARE THAT THE AO MADE THE ADDITION BEING THE AMOUNT PAID FOR THE PURCHASE OF FLAT IN THE NAME OF SMT. RAZIZ NOOR. ON APPEAL THE LD. CIT(A) MAINTAINED THE ADDITION. 22 . THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT THE SMT. RAZIA NOOR WAS A MARRIED DAUGHTER OF THE ASSESSEE AND THE ASSESSEE HAS PAID A SUM OF RS.1,85,000/ - TO THE BUILDER AND HAS DEBITED THE SAME IN THE BOOKS. THE BALANCE PAYMENT OF RS.70,000/ - FOR FIXTURES ETC . HAS BEEN MADE BY SMT. RAZIA AND HER HUSBAND. UNDER NO CIRCUMSTANCES ANY ADDITION COULD BE MADE IN THE HANDS OF THE ASSESSEE SINCE THE FLAT WAS IN THE NAME OF THE DAUGHTER AND THE AMOUNT IN QUESTION WAS PAID BY HER. THE LD. CIT(A) MAINTAINED THE ADDITION ON THE GROUND THAT NO DOCUMENTARY EVIDENCE WAS FILED THAT THE DAUGHTER HA D INVESTED THE MONEY. THE LD. COUNSEL FOR THE ASSESSEE MEHMOOD MANSOORI & SHAMIM BANO : 38 : - SUBMITTED THAT THE FLAT WAS IN THE NAME OF MA RRIED DAUGHTER AND NO ADDITION COULD BE MADE ON THIS ACCOUNT. 23 . THE LD. DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES AND STATED THAT BOTH THE ADDITIONS AT RS. 1,14,000/ - AND RS. 70,000/ - WERE RIGHTLY MADE BY THE AO AND MAINTAINED BY THE LD. CIT(A). 24 . WE HAVE CONSIDERED THE FACTS, RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS SUBMITTED THAT OUT OF THE TWO DONATIONS , NAMELY, THE DONATION OF RS. 1,14,000/ - , WAS RECEIVED BY THE ASSESSEE ON BEHALF OF THE DARGAH COMMITTEE AJMER SHARIF. A CERTIFICATE TO THIS EFFECT WAS ALSO FURNISHED FROM DARGAH COMMITTEE. WE FIND THAT THE AUTHORITIES BELOW HAVE NOT VERIFIED THIS FROM DARGAH COMMITTEE. THEREFORE, THIS ISSUE IS RESTORED TO THE FILE OF THE AO TO VERIFY THE RECEIPT ISSUED BY THE DARGAH COMMITTEE . IF THE AO IS SATISFIED, HE WOULD DELETE THE ADDITION. MEHMOOD MANSOORI & SHAMIM BANO : 39 : - 25 . REGARDING THE AMOUNT OF RS. 70,000/ - , WE FIND THAT THIS PAYMENT WAS FOR FIXTURES ETC . WHICH WAS MADE BY SMT. RAZIA AND HER HUSBAND. WE FIND THAT SINCE THE FLAT WAS IN THE NAME OF THE DAUGHTER, THE ADDITION CANNOT BE MADE IN THE HANDS OF THE ASSESSEE , AS THE AMOUNT IN QUESTION WAS PA ID BY HER. WE FIND MERIT IN THE CONTENTION OF THE LD. COUNSEL FOR T HE ASSESSEE. THEREFORE, THE ADDITION OF RS. 70,000/ - IS DELETED. 26 . GROUND NO. 4 RELATES TO ADDITION OF RS. 1,82,700/ - MADE ON ACCOUNT OF ROUGH NOTING ENTRY . 27 . THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT THE LD. CIT(A) HAS MAINTAINED THE ADDITION OF RS. 1 ,82,700/ - ON ACCOUNT OF EXPENSES NOTED IN THE REGISTER OF DARGAHA COMMITTEE ON THE BASIS OF THE WORKING OF THE PEAK THEORY. THE REGISTER MAINTAINED WAS TOTALLY FOR THE INCOME AND EXPENSES OF TODE WALE BABA DARGAHA AND AS SUCH NO ADDITION COULD BE MADE ON T HIS ACCOUNT. MEHMOOD MANSOORI & SHAMIM BANO : 40 : - 28 . THE LD. DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. 29 . WE HAVE CONSIDERED THE FACTS, RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS NOTICED THAT THE ASSESSEE HIMSELF HAS SUBMITTED BEFORE THE L D. CIT(A) THAT THE EXPENDITURE MAY BE DISALLOWED BY APPLYING PEAK THEORY. THEREFORE, WE DO NOT SEE ANY REASON TO INTERFERE WITH THE ORDER. THIS GROUND OF THE ASSESSEES APPEAL IS DISMISSED. 30 . IN THE RESULT, THE ASSESSEES APPEAL IN I.T.(SS)A.NOS. 100/IND/2013 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. I .T.(SS)A.NO. 106/IND/2013 ( REVENUES APPEAL ) : 31 . GROUND NO. 1 RELATES TO DELETION OF ADDITION OF RS. 64,33,580/ - ON ACCOUNT OF UNEXPLAINED CASH FOUND DURING SEARCH. 32 . FACTS RELATING TO THIS GROUND ARE THAT DURING T HE COURSE OF SEARCH CASH AMOUNTING TO RS. 64,33,580/ - WAS MEHMOOD MANSOORI & SHAMIM BANO : 41 : - FOUND IN THE PREMISES OF THE ASSESSEE. WHEN THE ASSESSEE WAS ASKED DURING ASSESSMENT PROCEEDINGS TO EXPLAIN THE CASH FOUND WITH SUPPORTING EVIDENCE, THE ASSESSEE SUBMITTED THAT THE AMOUNT OF RS. 36,50,000/ - WAS RECEIVED BY HIM AND RS. 29,50,000/ - WAS RECEIVED BY HIS WIFE SMT. SHAMIM BANO AS ADVANCES AGAINST THE AGREEMENTS FOR SALE OF LAND. 33 . THE LD. DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER OF THE AO . HE SUBMITTED THAT T HE ASSESSEE WAS NOT ABLE TO PRODUCE THE PERSONS TO WHOM THE LAND WAS SOLD. SUMMONS WERE ALSO ISSUED TO THOSE PERSONS, BUT THEY DID NOT ATTEND . 34 . LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT D URING THE COURSE OF THE SEARCH, THE POLICE DEPARTMENT SEIZED CASH AMOUNTING TO RS.64,33,580/ - , JEWELLERY & GOLD BISCUITS OF R S. 11,92,261/ - , SILVER ORNAMENTS OF RS.1,33,901/ - . THE JEWELLERY AND GOLD BISCUITS OF MEHMOOD MANSOORI & SHAMIM BANO : 42 : - RS.2,11,340/ - & RS.6,17,000/ - , RESPE CTIVELY WERE SEIZED BY THE I.T. DEPARTMENT FROM THE LOCKERS OF THE ASSESSEE AND HIS WIFE. IT MAY BE NOTED HERE THAT THE ASSESSEE WAS ABSCONDING RIGHT FROM THE DATE OF THE SEARCH BY THE POLICE AND COULD NOT BE TRACED UPTO THE COMPLETION OF THE AS SESSMENT. EVEN THE NOTICE U/S. 158BC WAS SERVED BY AFFIXTURE AT THE RESIDENTIAL PREMISES ON 06.08.2003. THE POLICE DEPARTMENT DID NOT TAKE ANY STATEMENT OF THE WIFE OF THE ASSESSEE DURING THE COURSE OF THE SEARCH. NO BOOKS OF ACCOUNTS WERE FOUND DURING THE COURSE OF THE SEARCH. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, IN RESPECT OF THE CASH BALANCE, IT WAS EXPLAINED BY THE ASSESSEE THAT THE SAME REPRESENTS THE ADVANCES RECEIVED FOR THE SALE OF AGRICULTURE LAND AND OTHER PROPERTIES. THE AGREEMENTS OF SALE ALONGWITH THE AFFIDAVITS OF THE PROSPECTIVE PURCHASERS AND THE PROOF OF THEIR LAND HOLDINGS WERE FILED BEFORE THE AO. IT WAS CLAIMED BY THE MEHMOOD MANSOORI & SHAMIM BANO : 43 : - ASSESSEE THAT A SUM OF RS.36,50,000/ - WAS RECEIVED BY THE ASSESSEE AND A SUM OF R S.29,50,000/ - WAS RECEIVED BY HIS WIFE SMT. SHAMIM MANSOORI AGAINST SUCH SALE AGREEMENTS. A CASH FLOW STATEMENT WAS ALSO PREPARED AND THE ASSESSEE FILED THE BALANCE SHEET AS AT 06.08.2002, SHOWING THE ADVANCES RECEIVED ON THE SALE OF VARIOUS IMMOVABL E PROPERTIES. THE ASSESSEE WAS ASKED TO PRODUCE THE SAID PROSPECTIVE PURCHASERS AND IT WAS SUBMITTED THAT THE FARMERS WERE BUSY AND NOTICES U/S. 131 MAY PLEASE BE ISSUED TO THEM. SUCH NOTICES U/S. 131 WERE ISSUED IN THE NAME OF THESE PERSONS. IN RESPONSE T O SUCH NOTICES, THE FARMERS REQUESTED THE AO THAT SINCE IT WAS A RAINY SEASON, AND THE AGRICULTURAL OPERATIONS ARE IN FULL FORCE, TIME OF ONE MONTH MAY PLEASE BE GRANTED. THE AFFIDAVITS OF THESE PERSONS ABOUT ENTERING INTO AN AGREEMENT AND ADVANCES GIVEN T O THE ASSESSEE WERE FILED BEFORE THE AO . WHILE FRAMING THE ASSESSMENT, THE LD. AO MADE THE ADDITION OF MEHMOOD MANSOORI & SHAMIM BANO : 44 : - RS. 64,33,580/ - AS AN UNDISCLOSED INCOME. THE ADVERSE INFERENCE WAS DRAWN BY HIM ONLY ON THE FACT THAT THE AGREEMENTS FOR SALE WERE NOT FOUND DURI NG THE COURSE OF THE SEARCH AND THE WIFE OF THE ASSESSEE DID NOT STATE THIS FACT OF ENTERING INTO AN AGREEMENT OF SALE AND RECEIVING THE CASH ON THIS ACCOUNT. THE PERSONS WITH WHOM THE AGREEMENTS WERE ENTERED DID NOT APPEAR BEFORE THE LD. AO IN RESPONSE TO NOTICES U/S. 131, NOR DID THEY INSIST ON REGISTRY OF THESE PROPERTIES. IN APPEAL, ALL THE PAPERS WERE FILED AND IT WAS SUBMITTED THAT THE ASSESSEE COULD NOT FILE SOME OF THE DOCUMENTS BECAUSE HE WAS ABSCONDING. THE MATTER WAS REMANDED BACK TO THE FILE OF THE AO AND THE FOLLOWING PAPERS WERE FILED : ( I ) COPIES OF THE AGREEMENT TO SALE. ( II ) COPIES OF THE LANDHOLDINGS OF THE PROSPECTIVE PURCHASERS WITH AGREEMENTS FOR PROOF OF SOURCE. ( III ) ALL THE PROSPECTIVE PURCHASERS WERE PRODUCED BEFORE THE AO AND WHO MEHMOOD MANSOORI & SHAMIM BANO : 45 : - CATEGORICALLY ACCEPTED THE TRANSACTION AND THE PAYMENT OF THE MONEY . ( IV ) NOTICES RECEIVED FROM THE ADVOCATE ABOUT REGISTRY OF THE LANDS ON THE BASIS OF THE AGREEMENTS. ( V ) COPIES OF THE AFFIDAVIT S FILED DURING THE COURSE OF THE SEARCH AND REQUEST FOR ADJOURNMENT IN THE ORIGINAL ASSESSMENT. ( VI ) COPIES OF THE ASSESSMENT ORDERS ALONGWITH COPIES OF THE RETURNS OF THE PROSPECTIVE PURCHASERS WERE FILED. IN SOME CASES, ASSESSMENTS WERE COMPLETED AFTER ISSUI NG NOTICE U/S. 148. ( VII ) COPIES OF THE SALE DEEDS EFFECTED SUBSEQUENT TO THE ASSESSMENT ORDER. ( VIII ) COPIES OF THE AFFIDAVIT OF SHRI BUNDIVAL ADVOCATE WHO DRAFTED THE SALE DEED. ( IX ) STATEMENTS RECORDED OF THE STAMP VENDOR ON 27.07.2005 . ( X ) STATEMENT RECORDED OF DEPUT Y REGISTRAR, SHRI A.K. SRIVASTAVA ON 23.08.2005 AND ON 31.08.2005 . MEHMOOD MANSOORI & SHAMIM BANO : 46 : - ( XI ) THE EXAMINATION OF REGISTER OF THE STAMP VENDOR . 35 . AFTER CONSIDERING THE REMAND REPORT, THE LD. CIT(A) DELETED THE ADDITION FOR THE CASH FOUND AS ALSO THE JEWELLERY PURCHASED DURING THE YEAR UNDER CONSIDERATION ON THE GROUND THAT THE VARIOUS PAPERS, STATEMENTS RECORDED OF THE PROSPECTIVE PURCHASERS AND THE REGISTERED SALE DEEDS CLEARLY PROVES THE SOURCE OF THE MONEY . 36 . WE HAVE CONSIDERED THE FACTS, RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. THERE IS NO DISPUTE THAT THE LD. CIT(A) HAS SOUGHT REMAND REPORT AND GIVEN THE FINDING OF FACT ON THE BASIS OF THIS REMAND REPORT. THIS FINDING OF FACT IS NOT REBUTTED BY THE REVENUE BY PLACING ANY CONTRARY MATERIAL ON RECORD. WE, THEREFORE, DO NOT SEE ANY REASON TO DISTURB THE FINDING ON FACT ARRIVED AT BY LD. CIT(A). HENCE, THIS GROUND OF REVENUE IS REJECTED. MEHMOOD MANSOORI & SHAMIM BANO : 47 : - 37 . GROUND NO. 2 TAKEN BY THE REVENUE RELATES TO DELETION OF ADDITION S OF RS. 1,75,000/ - & RS. 1,06,420/ - MADE BY THE AO ON ACCOUNT OF UNEXPLAINED INVESTMENT IN GOLD & SILVER FOUND DURING SEARCH . 38 . FACTS RELATING TO THIS GROUND ARE THAT THE PART OF THE GOLD BARS AMOUNTING TO RS.1,75,000/ - & SILVER OF RS.1,06,420/ - WERE PURCHASED DURING THE YEA R OF SEARCH, OUT OF THE SAID CASH ADVANCES RECEIVED , WHICH WAS RECEIVED FROM SALE OF LAND. THE AO MADE THE ADDITION. ASSESSEE WENT IN APPEAL. THE LD. CIT(A) DELETED THE ADDITIONS AS THE LD. CIT(A) HELD THAT IT WAS A DECLARED INVESTMENT OF SMT. SHAMIM BANO. THE REVENUE IS IN APPEAL BEFORE US. 39 . WE HAVE CONSIDERED THE FACTS, RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE OBSERVE THAT THE LD. CIT(A) DELETED THESE ADDITIONS BY OBSERVING AS UNDER : - 3.2.1 I HAVE CONSIDERED THE FINDINGS OF THE AO AND WRITTEN SUBMISSION OF THE APPELLANT CAREFULLY. MEHMOOD MANSOORI & SHAMIM BANO : 48 : - THE APPELLANT HAS PURCHASED GOLD BAR AND SILVER DURING THE PERIOD 01.04.2002 TO 04.08.2002. THE INVESTMENT IN PURCHASE OF GOLD BAR AND SILVER IS MADE BY SMT. SHAMIM BANO WIFE OF THE APPELLANT SHRI MEHM OOD MANSOORI. THE APPELLANT HAD NOT PRODUCED THE BILL OF PURCHASE OF GOLD BAR AND SILVER DURING THE ASSESSMENT PROCEEDING AS WELL AS APPELLATE PROCEEDING. THE APPELLANT HAS SHOWN THE INVESTMENT FROM THE INCOME OF HIS WIFE SMT. SHAMIM BANO. IN SUPPORT OF HI S CONTENTION HE HAS FILED THE CASH FLOW STATEMENT OF SMT. SHAMIM BANO IN PAPER BOOK - I ON PAGE NO. 94. IN CASH FLOW STATEMENT INVESTMENT IN GOLD BAR AND SILVER IS REFLECTED AND SAME WAS MADE BY HER FROM THE ADVANCE RECEIVED FROM AGREEMENT OF SALE OF AGRICUL TURAL LAND BY SMT. SHAMIM BANO AT RS. 29,50,000/ - . SINCE, AO, HAS NOT ACCEPTED THE CASH FOUND AT THE TIME OF THE SEARCH EXPLAINED, THEREFORE, HE HAS NOT ACCE PTED THE INVESTMENT OUT OF THE FUNDS AVAILABLE ON ACCOUNT OF ADVANCE RECEIVED FROM AGREEMENT OF SA LE OF AGRICULTURAL LAND. SINCE THE APPELLANT HAS EXPLAINED THE SOURCE OF INVESTMENT IN GOLD BAR AT RS. 1,75,000/ - AND SILVER AT RS. 1,06,420/ - , ADDITION MADE BY THE AO IS NOT SUSTAINABLE AND IT IS HEREBY DELETED. 40 . WE FIND THAT THE ABOVE FINDING OF FACT WA S NOT REBUTTED BY THE REVENUE BY PLACING ANY CONTRARY MATERIAL ON RECORD. THEREFORE, THE GROUND NO. 2 OF THE REVENUE FAILS. MEHMOOD MANSOORI & SHAMIM BANO : 49 : - 41 . GROUND NO. 3 RELATES TO DELETION OF ADDITION OF RS. 7,50,000/ - ON ACCOUNT OF UNEXPLAINED INVESTMENT FOUND TO BE NOTED IN THE DIARY SEIZED DURING SEARCH. 42 . FACTS RELATING TO THIS GROUND ARE THAT THE ENTRY OF RS.7,50,000/ - IN THE NAME OF GAUTAM WAS APPEARING WHICH WAS TREATED AS UNDISCLOSED INCOME OF THE ASSESSEE, ON THE GROUND THAT THE SAME HAS BEEN PAID TO THE SAID PERSON OUT OF THE UNDISCLOSED INCOME. IT WAS SUBMITTED THAT THIS AMOUNT REPRESENTS THE EXPENDITURE INCURRED ON THE CONSTRUCTION WORK OF DARGAHA. THE FIGURE OF EXPENDITURE OF RS.7,50,000/ - , UP TO THE DATE OF THE ENTRY I.E. 04.09.1999 WAS EXPLAINED TO MR. GA UTAM, WHO WAS A SOCIAL WORKER AND WHO WAS ALSO LOOKING AFTER THE DONATIONS AND THE CONSTRUCTION OF THE DARGAHA. THE LD. CIT (A) HAS DELETED THE ADDITION OF RS. 7,50,000/ - AGAINST WHICH THE REVENUE IS IN APPEAL. MEHMOOD MANSOORI & SHAMIM BANO : 50 : - 43 . THE LD. DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER OF THE AO . 44 . THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT UNDER NO CIRCUMSTANCES, THE ADDITION COULD BE MADE IN THE HANDS OF THE ASSESSEE, SINCE IT PERTAINS TO THE DARGAHA TRANSACTIONS. 45 . WE HAVE CONSIDERED THE FACTS, RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FINDING ON FACT AS RECORDED BY THE LD. CIT(A) IS NOT REBUTTED BY THE REVENUE BY PLACING ANY CONTRARY MATERIAL ON RECORD. WE, THEREFORE, DO NOT FIND ANY REAS ON TO INTEREFERE IN THE FINDING OF THE LD. CIT(A). GROUND NO. 3 IS REJECTED. 46 . GROUND NO. 4 RELATES TO DELETION OF ADDITION OF RS. 28,960/ - ON ACCOUNT OF UNEXPLAINED INVESTMENT IN THE PURCHASE OF AGRICULTURAL LAND IN THE NAME OF SMT. DEVYANI JOSHI FOUND TO BE NOTED IN THE LOOSE PAPERS SEIZED. MEHMOOD MANSOORI & SHAMIM BANO : 51 : - 47 . THE AO MADE THE ADDITION OF RS. 28,960/ - ON ACCOUNT OF REGISTRATION DEED FOUND IN THE NAME OF SMT. DEVYANI JOSHI. THE SAID PURCHASE AND SALE WAS TREATED AS A BENAMI TRANSACTION. THE ADDITION WAS MADE BY T HE AO. ON APPEAL, THE LD. CIT(A) DELETED THE ADDITION BY OBSERVING AS UNDER : - 3.13 I HAVE CONSIDERED THE FINDINGS OF THE AO AND WRITTEN SUBMISSION OF THE APPELLANT CAREFULLY. THE AO HAS ADDED THE INVESTMENT OF RS. 28,960/ - MADE BY SMT. DEVYANI JOSHI AND PAPER OF WHICH FOUND AT THE PREMISES OF THE APPELLANT. DURING THE COURSE OF APPELLATE PROCEEDINGS APPELLANT HAS FILED AFFIDAVIT OF SMT. DEVUYANI JOSHI AND COPY OF REGISTRY. THE LAND WAS SOLD BY SMT. DEVYANI JOSHI ON 30.05.2001 BEFORE THE DATE OF THE SEARC H. HENCE, ADDITION MADE BY THE AO AT RS. 28,960/ - IN THE HANDS OF THE APPELLANT IS NOT SUSTAINABLE AND IT IS HEREBY DELETED. 48 . THE LD. DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER OF THE AO. 49 . THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT REGISTRATION SALE DEED ITSELF CONTAIN ED HER PHOTOGRAPH AND HER AFFIDAVIT WAS ALSO FILED. HER IDENTITY WAS THUS MEHMOOD MANSOORI & SHAMIM BANO : 52 : - PROVED. THE DOCUMENTS WERE LYING AT THE ASSESSEE'S PLACE BECAUSE OF THE REASON THAT SMT. DEVYANI JOSHI WANTED TO DISPOSE OF THE PRO PERTY WITH THE HELP OF THE ASSESSEE. THE LD. CIT (A) HAS RIGHTLY DELETED THE ADDITION . 50 . WE HAVE CONSIDERED THE FACTS, RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FINDING OF FACT HAS NOT BEEN REBUTTED BY THE REVENUE BY PLACING ANY CONTRARY MATERIAL ON RECORD. WE DO NOT FIND ANY REASON TO INTERFERE WITH THE FINDING OF THE LD. CIT(A). GROUND NO. 4 IS REJECTED. 51 . GROUND NO. 5 TAKEN BY THE REVENUE IS WHETHER THE LD. CIT(A) WAS RIGHT IN ADMITTING THE ADDITIONAL EVIDENCES WHICH WERE PRODUCED BY THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS AND THE ADMISSION OF WHICH WAS NOT IN ACCORDANCE WITH THE PROVISIONS OF RULE 46A(1) & 46 A(2) OF INCOME TAX RULES, 1962. MEHMOOD MANSOORI & SHAMIM BANO : 53 : - 52 . WE HAVE CONSIDERED THE FACTS, RIVAL SUBMISSI ONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ADMISSION OF ADDITIONAL EVIDENCES WERE IN ACCORDANCE WITH THE PROVISIONS OF RULE 46A(1) & 46A(2) OF INCOME TAX RULES, 1962. MOREOVER, THE LD. CIT(A) HAD SOUGHT REMAND REPORT FROM THE ASSESS ING OFFICER. IT IS NOT THE CASE WHERE NO OPPORTUNITY IS GIVEN TO THE ASSESSING OFFICER AND EVIDENCES SO FURNISHED IS RELEVANT MATERIAL FOR ADJUDICATION OF THE ISSUE. NO TAX LIABILITY CAN BE FASTENED IF THE ASSESSEE IS NOT LIABLE FOR SUCH TAX. GROUND NO. 5 IS REJECTED. 53 . IN THE RESULT, THE APPEAL OF THE REVENUE IS PARTLY ALLOWED. I.T.(SS)A.NOS. 105/IND/2013 : REVENUES APPEAL SMT. SHAMIM BANO: 54 . THE FIRST GROUND TAKEN BY THE REVENUE RELATES TO DELETION OF ADDITION OF RS. 29,50,000/ - MADE BY THE AO ON MEHMOOD MANSOORI & SHAMIM BANO : 54 : - PROTECTIVE BASIS AS UNEXPLAINED CASH FOUND DURING THE COURSE OF SEARCH. 55 . THIS GROUND HAS AL READY BEEN DECIDED IN REVENUES APPEAL IN FAVOUR OF THE HUSBAND OF THE ASSESSEE. SINCE THE DELETION OF ADD ITION HAS BEEN SUSTAINED IN THE CASE OF HUSBAND OF THE ASSESSEE FOR THE SAME REASONING, THIS GROUND OF REVENUES APPEAL IS DISMISSED. THIS GROUND IS ALSO DISMISSED. 56 . GROUND NO. 2 TAKEN BY THE REVENUE RELATES TO DELETION OF ADDITIONS OF RS. 1,75,000/ - AND RS. 1,06,420/ - MADE BY THE AO ON PROTECTIVE BASIS AS UNEXPLAINED INVESTMENT IN GOLD AND SILVER FOUND DURING SEARCH. 57 . THIS GROUND HAS ALREADY BEEN DECIDED IN FAVOUR OF THE ASSESSEE IN REVENUES APPEAL IN I.T.(SS)A.NO. 106/IND/2013, HENCE, THIS GROUND TAKEN BY THE REVENUE IN SMT. SHAMIM BANO IS ALSO DISMISSED. MEHMOOD MANSOORI & SHAMIM BANO : 55 : - 58 . GROUND NO. 3 TAKEN BY THE REVENUE IS REGARDING ADMISSION OF ADDITIONAL EVIDENCES BY THE LD. CIT(A), WHICH WERE NOT PRODUCED BY THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS, WHICH IS AGAINST THE PROVISIONS OF RULE 46A(1) & 46A(2) OF THE INCOME TAX RULES, 1962. 59 . WE HAVE CONSIDERED THE FACTS, R IVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ADMISSION OF ADDITIONAL EVIDENCES WERE IN ACCORDANCE WITH THE PROVISIONS OF RULE 46A(1) & 46A(2) OF INCOME TAX RULES, 1962. GROUND NO. 3 IS REJECTED. 60 . IN THE RESULT, THE APPEAL IN I.T.(SS)A.NO. 105/IND/2013 IS DISMISSED. 61 . CONSEQUENTLY, THE APPEAL OF THE ASSESSEE IN I.T.(SS)A.NO .100/IND/2013 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES, APPEAL OF THE REVENUE IN I.T.(SS)A.NO. 106/IND/2013 IS PARTLY ALLOWED AND APPEAL TAKEN BY THE REVENUE IN THE CASE OF SHAMIM BANO IN I.T.(SS)A.NO. 105/IND/2013 IS DISMISSED . MEHMOOD MANSOORI & SHAMIM BANO : 56 : - THE ORDER PRONOUNCED IN THE OPEN COURT ON 3 1 . 05.2018 . S D / - ( ) S D / - ( ) (MANISH BORAD) (KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER I NDORE; DATED : 3 1 /0 5 /2018 CPU * / SPS COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUARD FILE. BY ORDER PRIVATE SECRETARY/DDO, INDORE