Shri Narendra Tripathi, Bhopal V. THE DCIT-Central-1, Bhopal

ITSSA 118/IND/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5836 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 07-08-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 21-05-2019
• Assessment Year: 2011-2012
• Appeal Filed On: 25-04-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ASHIMA GUPTA
• Assessee Lawyers: N D PATWA
• Keywords: Unexplained investment; Sale consideration of property below Jantri Value; Unexplained expenditure; Salary income; Loose papers; Document seized; Opportunity of being heard; Fair market value; Corroborative evidences; Competent authority; Onus to prove; Documents seized; Set aside
• Section: 143(3); 50C; 56(2); 153A; 69B; 69; 6; 132; 139

Judgement Text

SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE HON'BLE KUL BHARAT, JUDICIAL MEMBER AND HON'BLE MANISH BORAD, ACCOUNTANT MEMBER ITA (SS)NO 101 & 102/IND/2017 ASSESSMENT YEARS 2009-10 & 2011-12 PAN : AWEPT0544J SMT. SEEMA TRIPATHI, V/S DEPUTY COMMISSIONER 12, PARIKA GRIH NIRMAN SOCIETY, O F INCOME TAX, WALMI ROAD, BHOPAL CENTRAL-1, BHOPAL (REVENUE) (RESPONDENT) ITA (SS)NO 115 TO 119/IND/2017 & ITA NO.300/IND/201 7 ASSESSMENT YEARS 2008-09 TO 2012-13 & 2013-14 PAN : AAQPT4154N SHRI. NARENDRA TRIPATHI, V/S DEPUTY COM MISSIONER 12, PARIKA GRIH NIRMAN SOCIETY, OF INCOME TAX, WALMI ROAD, BHOPAL CENTRAL-1, BHOPAL (REVENUE) (RESPONDENT) REVENUE BY : SMT. ASH IMA GUPTA, CIT ASSESSEE BY : S/SHRI ASHISH GOYAL & N.D. PATWA, ADVOCATES DATE OF HEARING : 13.06.2019 DATE OF PRONOUNCEMENT : 07.08.2019 O R D E R PER BENCH. THE ABOVE CAPTIONED APPEALS FILED AT THE INSTANCE O F ASSESSEES PERTAINING TO ASSESSMENT YEARS 2009-10 & 2011-12 A ND ASSESSMENT SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 2 YEARS 2008-09 TO 2013-14 ARE DIRECTED AGAINST THE O RDERS OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-3 (IN SHORT L D.CIT(A)], BHOPAL DATED 22.02.2017 & 23.02.2017 WHICH ARE ARISING OUT OF THE ORDER U/S 153A R.W.S 143(3) DATED 25.02.2015 & 21.03.2015 RESPECTIVELY FRAMED BY DCIT(CENTRAL)-I, BHOPAL. 2. AS THE ISSUES RAISED IN THESE APPEALS ARE COMMON T HESE WERE HEARD TOGETHER AND THEREFORE ARE BEING DISPOSED OFF BY THIS COMMON ORDER FOR SAKE OF CONVENIENCE AND BREVITY. 3. FIRST WE TAKE UP THE CASE OF SMT. SEEMA TRIPATHI ITA (SS)NO 101 & 102/IND/2017 ASSESSMENT YEARS 2009-10 & 2011 -12. 4. BRIEFLY STATED FACTS AS CULLED OUT FROM THE RECORD S ARE THAT THE ASSESSEE IS AN INDIVIDUAL DERIVES INCOME FROM BUSIN ESS BEING INTEREST, REMUNERATION AND SHARE OF PROFIT FROM FIR M M/S. RAJEEV HOMES AND INCOME FROM OTHER SOURCES. A SEARCH WAS CONDUCTED U/S 132 OF THE ACT ON 20.06.2012 IN CONNECTION WITH DB L GROUP. NOTICES U/S 153A WERE SERVED UPON THE ASSESSEE. IN RESPONSE TO THE NOTICES ASSESSEE FILED RETURN OF INCOME AT RS.66,03 6/- AND RS.5,47,560/- FOR ASSESSMENT YEARS 2009-10 & 2011-1 2 RESPECTIVELY. THE ASSESSMENT WAS COMPLETED AT AN INCOME OF RS.5,8 0,196/- AND SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 3 RS.8,26,060/- AFTER MAKING ADDITION OF RS.4,00,266/ -AND RS.2,78,500/- FOR ASSESSMENT YEAR 2009-10 AND 2011- 12 RESPECTIVELY ON ACCOUNT OF UNEXPLAINED INVESTMENT I N PURCHASE OF PLOT. ASSESSEE PREFERRED APPEALS BEFORE LD. CIT(A) BUT COULD NOT SUCCEED. 5. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL RAISING FOLLOWING GROUNDS OF APPEAL; ITA (SS)NO 101/IND/2017 ASSESSMENT YEARS 2009-10 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LEARNED CIT(APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS .4,00,266/- MADE U/S 69B ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PURCHAS E OF PLOT WITHOUT ACCEPTING THE EXPLANATION OFFERED BY THE ASSESSEE T HAT THE SAID PLOT WAS PURCHASED IN A.Y 2006-07 I.E. BEYOND THE BLOCK PERI OD AND ONLY REGISTRY WAS EXECUTED IN THE YEAR AND DURING THE COURSE OF S EARCH, NO ANY INCRIMINATING DOCUMENTS WAS FOUND FROM WHICH IT COU LD BE ESTABLISHED THAT ANY ON MONEY WAS PAID ON THE PURCHASE OF THE P ROPERTY. THE LEARNED CIT(APPEALS) ALSO ERRED IN NOT APPRECIA TING THE FACT THAT PROVISIONS OF SECTION 69B IS NOT APPLICABLE IN THE CASE OF IMMOVABLE PROPERTY BUT IS APPLICABLE FOR ANY BULLION, JEWELLE RY OR OTHER VALUABLES ARTICLE. 2.THAT THE APPELLANT CRAVES, LEAVE TO ADD, TO URGE, TO ALTER OR TO AMEND ANY OF THE GROUND OF THE APPEAL ON OR BEFORE THE DATE O F HEARING. ITA (SS)102/IND/2017 ASSESSMENT YEAR 2011-12. 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LEARNED CIT(APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS .2,78,500/- MADE U/S 69B ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PURCHAS E OF PLOT WITHOUT ACCEPTING THE EXPLANATION OFFERED BY THE ASSESSEE T HAT NO ON MONEY WAS PAID ON THE PURCHASE OF THE PROPERTY. FURTHER IT IS SUBMITTED THAT DURING THE COURSE OF SEARCH, NO ANY INCRIMINATING DOCUMENT S WAS FOUND FROM WHICH IT COULD BE ESTABLISHED THAT ANY ON MONEY WAS PAID ON THE PURCHASE OF THE PROPERTY. THE LEARNED CIT(APPEALS) ALSO ERRED IN NOT APPRECIA TING THE FACT THAT PROVISIONS OF SECTION 69B IS NOT APPLICABLE IN THE CASE OF IMMOVABLE SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 4 PROPERTY BUT IS APPLICABLE FOR ANY BULLION, JEWELLE RY OR OTHER VALUABLES ARTICLE. 2.THAT THE APPELLANT CRAVES, LEAVE TO ADD, TO URGE, TO ALTER OR TO AMEND ANY OF THE GROUND OF THE APPEAL ON OR BEFORE THE DATE O F HEARING. 6. THE SOLE AND COMMON ISSUE RAISED IN ABOVE GROUNDS FOR ASSESSMENT YEARS 2009-10 AND 2011-12 ARE TOWARDS TH E ADDITION MADE U/S 69B OF THE ACT ON ACCOUNT OF UNEXPLAINED I NVESTMENT IN PURCHASE OF PLOTS. 7.(A) LD. COUNSEL FOR THE ASSESSEE REFERRING TO WRITTEN S UBMISSIONS SUBMITTED THAT WITH REFERENCE TO THE ALLEGED ADDITI ON OF RS.4,00,266/- FOR ASSESSMENT YEAR 2009-10 THE IMPUG NED LAND WAS PURCHASED AND TRANSFERRED TO THE ASSESSEE IN THE YE AR 2006 AND ONLY THE REGISTRY WAS DONE ON 23.3.2009. SINCE THE FULL PAYMENT WAS MADE BEFORE 13.3.2006 AND POSSESSION OF THE LAND AL SO TAKEN ON 13.03.2006, THE ALLEGED TRANSACTION IS BEYOND THE BLOCK PERIOD AND THEREFORE NO ADDITION SHOULD HAVE BEEN MADE BY THE LD. A.O. 7(B). WITH REGARD TO THE ADDITION OF RS.2,78,500/- U/S 69B OF THE ACT FOR ASSESSMENT YEAR 2011-12, LD. COUNSEL FOR THE AS SESSEE SUBMITTED THAT NO ON MONEY WAS PAID AND NO INCRIM INATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH. FURTHER THE RE IS NO EVIDENCE SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 5 ON RECORD TO SHOW THAT THE SELLER HAS RECEIVED THE PRICE OF THE LAND MORE THAN THE AMOUNT MENTIONED IN THE REGISTERED DE ED AND SUCH ADDITION MERELY MADE ON ASSUMPTIONS AND SURMISES IS LIABLE TO THE DELETED. 8. FOLLOWING WRITTEN SUBMISSION WERE FILED BY THE LD. COUNSEL FOR THE ASSESSEE:- THE ADDITIONS ARE BASED ON ASSUMPTIONS AND SURMISE S AND THE ONUS TO PROVE THAT THE ON MONEY WAS PAID WAS NOT DISCHARGED BY THE LD.AO. ABOVE ADDITIONS ARE DONE BY THE AO U/S 69B OF THE ACT. IT IS PERTINENT TO NOTE THAT LD.CIT(A) IN PARA 3.2 OF HIS ORDER STATED THAT THE ONUS OF PROVING THAT NO PAYMENT ABOVE THE REGISTERED VALUE OF THE PROPER TY IS ON THE ASSESSEE. IT IS VERY UNLIKELY THAT A PROPERTY CAN BE BOUGHT BY T HE APPELLANT ASSESSEE AT A RATE WHICH IS MUCH LOWER THAN THE PREVAILING MARK ET RATE. THE FINDING OF LD. CIT(A) IS WRONG IN THE LIGHT OF CIT V/S DINESH JAIN HUF(DELHI) (HIGH COURT) 352 ITR 629 WHEREIN IT WAS STATED THAT SECTION 69B IN TERMS REQUIRES THAT THE ASSESSING OF FICER HAS TO FIRST 'FIND' THAT THE ASSESSEE HAS 'EXPENDED' AN AMOUNT WHICH HE HAS NOT FULLY RECORDED IN HIS BOOKS OF ACCOUNT. IT IS ONLY THEN THAT THE B URDEN SHIFTS TO THE ASSESSEE TO FURNISH A SATISFACTORY EXPLANATION. TILL THE INI TIAL BURDEN IS DISCHARGED BY THE ASSESSING OFFICER, THE SECTION REMAINS DORMANT FURTHER IN CASE OF CIT VS. CHANDNI BHUCHAR (2010) 323 ITR 510 (HIGH COURT OF PUNJAB & HARYANA) , ORDER OF TRIBUNAL WAS UPHELD WHICH STATED THAT IN ABSENCE OF ANY LEGALLY ACCEPTABLE EVIDENCE, VALU ATION DONE FOR THE PURPOSE OF SECTION 50 C WOULD NOT REPRESENT ACTUAL CONSIDERATION PASSED ON TO SELLER. SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 6 SO FAR AS REGARDS INVESTMENT OVER AND ABOVE THAT RE CORDED IN THE BOOKS OF ACCOUNT, THE ONUS, RATHER THE BURDEN, IS ON THE DEP ARTMENT TO PROVE SUCH ALLEGATION, AS HAS BEEN HELD IN, INTER ALIA, CIT V. DAULAT MAL RAWAT MAL, 87 ITR 349 (SC), K.P. VERGHESE V. ITO, 131 ITR 597 (SC) AND CIT V. BEDI & CO. (P) LTD., 230 ITR 580 (S C) . NO CORROBORATIVE EVIDENCE THAT ON MONEY PAYMENT WAS DONE FOR PROCURING THE LAND. IT WAS FURTHER STATED IN THE CASE OF CIT V/S DINESH JAIN HUF (SUPRA) THAT A 'FINDING' OBVIOUSLY SHOULD REST ON EVIDENC E. SECTION 69B DOES NOT PERMIT AN INFERENCE TO BE DRAW N FROM THE CIRCUMSTANCES SURROUNDING THE TRANSACTION THAT THE PURCHASER OF THE PROPERTY MUST HAVE PAID MORE THAN WHAT WAS ACTUALLY RECORDED IN HIS BOOKS OF ACCOUNT FOR THE SIMPLE REASON THAT SUCH AN INFER ENCE COULD BE VERY SUBJECTIVE AND COULD INVOLVE THE DANGEROUS CONSEQUE NCE OF A NOTIONAL OR FICTIONAL INCOME BEING BROUGHT TO TAX CONTRARY TO T HE STRICT PROVISIONS OF ARTICLE 265 OF THE CONSTITUTION OF INDIA AND ENTRY 82 IN LIST I OF THE SEVENTH SCHEDULE THERETO WHICH DEALS WITH 'TAXES ON INCOME OTHER THAN AGRICULTURAL INCOME'. SINCE THE ENTIRE CASE HAS PROCEEDED ON THE ASSUMPTI ON THAT THERE WAS UNDERSTATEMENT OF THE INVESTMENT, WITHOUT A FINDING THAT THE ASSESSEE INVESTED MORE THAN WHAT WAS RECORDED IN THE BOOKS O F ACCOUNT, SUCH ADDITIONS ARE ILLEGAL, VOID AND HENCE SHALL BE DELE TED. 9. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE VEHEMENT LY ARGUED AND SUPPORTING THE ORDERS OF BOTH THE LOWER AUTHORI TIES. 10. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE REC ORDS PLACED BEFORE US. THE ASSESSEES APPEAL FOR ASSESSMENT YE AR 2009-10 AND 2011-12 CHALLENGE THE COMMON FINDING OF LD. CIT(A) CONFIRMING THE SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 7 ACTION OF THE LD. A.O MAKING THE ADDITION U/S 69B O F THE ACT FOR UNEXPLAINED INVESTMENT OF RS.4,00,266/- AND RS.2,78 ,500/- FOR ASSESSMENT YEAR 2009-10 AND 2011-12 RESPECTIVELY FO R THE PROPERTIES REGISTERED IN FAVOUR OF THE ASSESSEE ON 29.3.2009 AND 22.12.2010 RESPECTIVELY. 11. APROPOS TO ASSESSMENT YEAR 2009-10, WE FIND THAT L D. A.O MADE THE ADDITION FOR THE UNEXPLAINED INVESTMENT OF 4,00,266/- ALLEGED TO HAVE BEEN MADE BY THE ASSESSEE IN THE PU RCHASE OF PLOT NO.139, JYOTI NAGAR, BHOPAL BY TAKING FAIR MARKET V ALUE AT RS.5,40,000/-. IN THE PAPER BOOK PAGE-18 SHOWS THAT THE ASSESSEE HAS TAKEN THE POSSESSION OF ALLEGED LAND ON 13.03.2 006 AFTER MAKING ALL NECESSARY PAYMENTS TOWARDS PURCHASE CONSIDERATI ON ON AND BEFORE 13.3.2006. SO FOR ALL TECHNICAL PURPOSES THE PAYMENT FOR THE PURCHASE OF LAND AND THE POSSESSION OF THE LAND WAS COMPLETED ON AND BEFORE 13.3.2006. ONLY THE SALE DEED WAS REGIS TERED ON 23.3.2009. THE FACT THAT THE PAYMENT FOR PURCHASE OF LAND AND POSSESSION FORMALITIES HAVE BEEN COMPLETED ON AND B EFORE 13.3.2006 IS NOT DISPUTED BY THE REVENUE AUTHORITIES. SINCE THE ACTUAL TRANSACTION HAS TAKEN PLACE DURING FINANCIAL YEAR 2 005-06, MAKING ADDITION FOR UNEXPLAINED INVESTMENT IN THE HANDS OF THE ASSESSEE FOR SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 8 ASSESSMENT YEAR 2009-10 DOES NOT SEEMS TO BE JUSTIF IED. MOREOVER THE ACTUAL DATE OF TRANSACTION OF PAYMENT FALLS IN THE PERIOD BEYOND THE BLOCK PERIOD AND IN ABSENCE OF ANY INCRIMINATIN G MATERIAL FOUND DURING THE COURSE OF SEARCH, WE FIND NO MERIT IN TH E ACTION OF THE LD. A.O MAKING THE ADDITION. WE ACCORDINGLY SET ASIDE THE FINDING OF LD. CIT(A) AND DELETE THE ADDITION OF RS.4,00,266/- MAD E FOR ASSESSMENT YEAR 2009-10. THE GROUND RAISED AND SO ALSO THE AP PEAL BY THE ASSESSEE IS ALLOWED. 12. APROPOS TO ASSESSMENT YEAR 2011-12, WE FIND THAT T HE PROPERTY WAS PURCHASED AT VINEET KUNJ COLONY, BHOPAL ON 22.1 2.2010 FOR CONSIDERATION OF RS.2,65,000/-. LD. A.O ON THE BAS IS OF THE VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY TOOK THE F AIR MARKET VALUE OF THE PROPERTY AT RS.5,43,500/- AND MADE THE ADDIT ION FOR THE DIFFERENCE OF RS.2,78,500/- (RS.5,43,500/- (-) RS.2 ,65,000/-). WE OBSERVE THAT THERE IS NO INCRIMINATING MATERIAL FOU ND DURING THE COURSE OF SEARCH WHICH COULD ESTABLISH THAT THE ASS ESSEE MADE ANY PAYMENT OVER AND ABOVE THE CONSIDERATION MENTIONED IN THE REGISTERED SALE DEED. THE PROVISIONS OF SECTION 5 0C OF THE ACT RELEVANT TO SPECIAL PROVISION FOR FULL VALUE OF CON SIDERATION IN CERTAIN CASES DEALS WITH CONSIDERATION RECEIVED OR ACCRUIN G AS A RESULT OF THE SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 9 TRANSFER BY AN ASSESSEE. THUS THE PROVISION OF SEC TION 50C IS PRIMARILY APPLICABLE ON THE SELLER OF THE PROPERTY. THERE IS NO EVIDENCE ON RECORD WHICH COULD SHOW THAT THE LD. A. O CARRIED OUT ANY INVESTIGATION AGAINST THE SELLER OR TOOK HIS/HE R STATEMENT OR WHETHER ANY ADDITION HAS BEEN MADE IN THE HANDS OF THE SELLER FOR THE ALLEGED AMOUNT BEING RECEIVED OVER AND ABOVE TH E AMOUNT STATED IN THE REGISTERED SALE DEED. THERE IS NO STATEMENT OF THE SELLER ACCEPTING THAT HE RECEIVED ANY ON MONEY . EVEN TH E LD. A.O MADE NO EFFORT TO REFER THE MATTER TO THE DEPARTMENTAL V ALUATION OFFICER. 13. IN THESE GIVEN FACTS AND CIRCUMSTANCES AND IN VIEW OF THE PROPOSITION LAID DOWN BY HON'BLE APEX COURT IN THE CASE OF CIT V/S DAULAT MAL RAWAT MAL, 87 ITR 349 (SC) AND K.P. VERG HESE V/S ITO 131 ITR 597 (SC) THAT, THE BURDEN WAS ON THE DEPARTMENT TO PROVE SUCH ALLEGATION THAT THE ASSESSEE HAS PAID ANY ON MONEY OVER AND ABOVE OF STATED CONSIDERATION IN REGISTERED SALE DE ED. WE FIND NO JUSTIFICATION IN THE ADDITION MADE BY THE LD. A.O U/S 69B OF THE ACT FOR ASSESSMENT YEAR 2011-12 IN THE HANDS OF THE ASS ESSEE AT RS.2,78,500/-. WE ACCORDINGLY SET ASIDE THE FINDIN G OF LD. CIT(A) AND ALLOW THE SOLE GROUND RAISED BY THE ASSESSEE IN THE APPEAL FOR ASSESSMENT YEAR 2011-12. SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 10 14. IN THE RESULT BOTH THE APPEALS OF THE ASSESSEE FOR ASSESSMENT YEAR 2009-10 AND 2011-12 ARE ALLOWED. 15. NOW WE TAKE UP THE ASSESSEES APPEAL IN THE CASE O F SHRI NARENDRA TRIPATHI ITA (SS)NO 115 TO 119/IND/2017 & ITA NO.300/IND/2017 FOR ASSESSMENT YEARS 2008-09 TO 201 2-13 & 2013- 14. 16. BRIEFLY STATED FACTS AS CULLED OUT FROM THE RECORD S ARE THAT THE ASSESSEE IS EMPLOYED WITH BARKATULLAH UNIVERSITY, B HOPAL. HE IS ALSO ENGAGED IN LIASIONING WORK FOR THE ADMISSION OF THE STUDENTS AND INCOME FROM LIASONING IS SHOWN UNDER INCOME FROM OT HER SOURCES IN THE RETURN FILED. A SEARCH U/S 132 OF THE I.T. ACT WAS CARRIED OUT ON 20.06.2012 AT THE RESIDENTIAL PREMISES OF THE ASSES SEE. SEARCH WAS ALSO CONDUCTED ON PREMISES OF ANOTHER BUSINESS CONC ERNS OF DBL GROUP. NOTICES U/S 153A WERE SERVED UPON THE ASSES SEE TO FILE RETURN OF INCOME FOR THE ASSESSMENT YEARS 2008-09 T O 2013-14. IN RESPONSE TO THE NOTICES ASSESSEE FILED RETURN OF IN COME AS WERE FILED U/S 139 OF THE ACT. THEREAFTER, A CONSOLIDATED ASS ESSMENT FOR ASSESSMENT YEARS 2008-09 TO 2013-14 WAS PASSED U/S 153A R.W.S. 143(3) OF THE ACT DATED 23.02.2017 WHEREIN SUBSTANT IAL ADDITIONS SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 11 WERE MADE. AGAINST THE ADDITION ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) WHO PARTLY CONFIRMED THE ADDITION AS MEN TIONED BELOW; ASSESSMENT YEAR RETURNED INCOME ADDITION BY LD. A.O RELIEF BY CIT(A) INCOME AFTER CIT(A) ORDER 2007 - 08 97,700 NIL NIL 97,700 2008 - 09 1,06,790 27,27,834 NIL 27,27,834 2009 - 10 3,48,350 23,10,159 NIL 23,10,159 2010 - 11 3,71,380 26,89,285 NIL 26,89,285 2011 - 12 3,79,740 23,34,500 1,400 23,33,100 2012 - 13 4,52,890 1,80,000 5,000 1,75,000 2013 - 14 8,06,690 52,86,060 4,00 0 52,82,060 17. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL RAISING FOLLOWING GROUNDS OF APPEALS; ITA (SS)NO 115/IND/2017 ASSESSMENT YEAR 2008-09 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LEARNED CIT(APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS .27,27,834/- BEING UNDISCLOSED RECEIPT FROM VARIOUS PERSONS ON VARIOUS DATES WITHOUT CONSIDERING THE EXPLANATION OFFERED BY THE ASSESSEE AND WITHOUT CONSIDERING THE FACT THAT THIS IS NOT CASH RECEIPT BUT FIGURE OF CERTAIN CONTRACT WORKS ALLOTTED ON VARIOUS DATES. THE LEAR NED CIT(APPEALS) ALSO ERRED IN NOT APPRECIATING THE FACT THAT THE DOCUME NT LPS-1 PAGE 5 IS NOT RELATED WITH THE ASSESSEE BUT RELATED WITH HIS BROT HER AND NECESSARY EVIDENCES AND EXPLANATION OF EACH CONTRACT WORK WAS GIVEN DURING APPELLATE PROCEEDINGS BUT WAS NOT CONSIDERED. 2. THAT THE APPELLANT CRAVES, LEAVE TO ADD, TO URGE, T O ALTER OR TO AMEND ANY OF THE GROUND OF THE APPEAL ON OR BEFORE THE DATE O F HEARING. ITA (SS)NO 116/IND/2017 ASSESSMENT YEAR 2009-10 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LEARNED (IT (APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS.16 ,00,893/- BEING UNDISCLOSED RECEIPT FROM VARIOUS PERSONS ON VARIOUS DATES WITHOUT CONSIDERING THE EXPLANATION OFFERED BY THE ASSESSEE AND WITHOUT CONSIDERING THE FACT THAT THIS IS NOT CASH RECEIPT BUT FIGURE O F CERTAIN CONTRACT WORKS SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 12 ALLOTTED ON VARIOUS DATES. THE LEARNED (IT (APPEALS ) ALSO ERRED IN NOT APPRECIATING THE FACT THAT THE DOCUMENT LPS-L PAGE 5 IS NOT RELATED WITH THE ASSESSEE BUT RELATED WITH HIS BROTHER AND NECESSARY EVIDENCES AND EXPLANATION OF EACH CONTRACT WORK WAS GIVEN DURING APPELLATE PROCEEDINGS BUT WAS NOT CONSIDERED. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LEARNED (IT (APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS.3, 00,000/- BEING UNEXPLAINED INVESTMENT IN THE PURCHASE OF PROPERTY WITHOUT CONSIDERING THE EXPLANATION OFFERED BY THE ASSESSEE AND WITHOUT CON SIDERING THE FACT THAT THE DOCUMENTS BELONGS TO SHRI G.P. TRIPATHI, FATHER OF THE ASSESSEE AND NECESSARY EVIDENCES IN THIS REGARD HAS ALREADY BEEN FILED. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LEARNED (IT(APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS . 4,09,266/- MADE U/S 69B ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PURCHAS E OF PLOT FROM HOUSING SOCIETY WITHOUT ACCEPTING THE EXPLANATION OFFERED B Y THE ASSESSEE THAT THE SAID PLOT WAS PURCHASED IN AY 2006-07 I.E. BEYOND T HE BLOCK PERIOD AND ONLY REGISTRY WAS EXECUTED IN THE YEAR AND DURING T HE COURSE OF SEARCH, NO ANY INCRIMINATING DOCUMENTS WAS FOUND FROM WHICH IT COULD BE ESTABLISHED THAT ANY ON MONEY WAS PAID ON THE PURCHASE OF THE P ROPERTY. THE LEARNED (IT (APPEALS)ALSO ERRED IN NOT APPRECIA TING THE FACT THAT PROVISIONS OF SECTION 69 B IS NOT APPLICABLE IN THE CASE OF IM MOVABLE PROPERTY BUT IS APPLICABLE FOR ANY BULLION, JEWELARY OR OTHE R VALUABLES ARTICLE. 4. THAT THE APPELLANT CRAVES, LEAVE TO ADD, TO URGE, T O ALTER OR TO AMEND ANY OF THE GROUND OF THE APPEAL ON OR BEFORE THE DATE O F HEARING. ITA (SS)NO 117/IND/2017 ASSESSMENT YEAR 2010-11 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LEARNED (IT (APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS.1, 64,785/- BEING UNDISCLOSED RECEIPT FROM VARIOUS PERSONS ON VARIOUS DATES WITHOUT CONSIDERING THE EXPLANATION OFFERED BY THE ASSESSEE AND WITHOUT CONSIDERING THE FACT THAT THIS IS NOT CASH RECEIPT BUT FIGURE O F CERTAIN CONTRACT WORKS ALLOTTED ON VARIOUS DATES. THE LEARNED (IT (APPEALS ) ALSO ERRED IN NOT APPRECIATING THE FACT THAT THE DOCUMENT LPS-L PAGE 5 IS NOT RELATED WITH THE ASSESSEE BUT RELATED WITH HIS BROTHER AND NECESSARY EVIDENCES AND EXPLANATION OF EACH CONTRACT WORK WAS GIVEN DURING APPELLATE PROCEEDINGS BUT WAS NOT CONSIDERED. 2.THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED (IT (APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS.24 ,75,000/- BEING UNDISCLOSED INVESTMENT IN THE PROPERTY WITHOUT CON SIDERING THE FACT THAT THE AFORESAID DOCUMENTS OF LAND DOES NOT PERTAINS TO AP PELLANT BUT PERTAINS TO SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 13 SHRI NARENDRA HEMNANI AND NECESSARY EVIDENCES AND E XPLANATION IN THIS REGARD HAS ALREADY BEEN FILED DURING APPELLATE PROC EEDINGS AND NOTHING INCRIMINATING DURING THE COURSE OF SEARCH WAS FOUND WHICH COULD SUGGEST THT THE INVESTMENT WAS MADE BY THE APPELLANT. 3.THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED (IT(APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS . 49,500/- BEING CASH DEPOSIT IN BANK TREATING THE SAME AS UNDISCLOSED WI THOUT CONSIDERING THE EXPLANATION OFFERED BY THE ASSESSEE AND WITHOUT CON SIDERING THE FACT THE CASH DEPOSIT IN THE BANK IS PARTLY OUT OF OWN SOURC ES AS SHOWN IN THE RETURN AND PARTLY OUT OF WITHDRAWALS FROM BANK EARLIER AND RE-DEPOSITED LATER ON ANY NECESSARY EVIDENCES IN THIS REGARD WERE SUBMITT ED DURING ASSESSMENT PROCEEDINGS AS WELL AS APPELLATE PROCEEDINGS. 4. THAT THE APPELLANT CRAVES, LEAVE TO ADD, TO URGE, T O ALTER OR TO AMEND ANY OF THE GROUND OF THE APPEAL ON OR BEFORE THE DATE O F HEARING. ITA (SS)NO 118/IND/2017 ASSESSMENT YEAR 2011-12 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LEARNED CIT(APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS .22,33,LOO/- MADE U/S 69B ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PURCHAS E OF PLOT WITHOUT ACCEPTING THE EXPLANATION OFFERED BY THE ASSESSEE T HAT NO ON MONEY WAS PAID ON THE PURCHASE OF THE PROPERTY. FURTHER, IT I S SUBMITTED THAT DURING THE COURSE OF SEARCH, NO ANY INCRIMINATING DOCUMENTS WA S FOUND FROM WHICH IT COULD BE ESTABLISHED THAT ANY ON MONEY WAS PAID ON THE PURCHASE OF THE PROPERTY. THE LEARNED CIT (APPEALS) ALSO ERRED IN NOT APPRECI ATING THE FACT THAT PROVISIONS OF SECTION 69 B IS NOT APPLICABLE IN THE CASE OF IMMOVABLE PROPERTY BUT IS APPLICABLE FOR ANY BULLION,JEWELARY OR OTHER VALUABLES ARTICLE. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LEARNED CIT (APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS.L, OO,OOO/- BEING CASH DEPOSIT IN BANK TREATING THE SAME AS UNDISCLOSED WI THOUT CONSIDERING THE EXPLANATION OFFERED BY THE ASSESSEE AND WITHOUT CON SIDERING THE FACT THAT THE CASH DEPOSIT IN THE BANK IS PARTLY OUT OF OWN S OURCES AS SHOWN IN THE RETURN AND PARTLY OUT OF WITHDRAWALS FROM BANK EARL IER AND RE-DEPOSITED LATER ON AND NECESSARY EVIDENCES IN THIS REGARD WER E SUBMITTED DURING ASSESSMENT PROCEEDINGS AS WELL AS APPELLATE PROCEEDINGS. 3. THAT THE APPELLANT CRAVES, LEAVE TO ADD, TO URGE, T O ALTER OR TO AMEND ANY OF THE GROUND OF THE APPEAL ON OR BEFORE THE DATE OF HEARING . SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 14 ITA (SS)NO 119/IND/2017 ASSESSMENT YEAR 2012-13 1.THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT (APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS.1, 75,000/- BEING CASH DEPOSIT IN BANK TREATING THE SAME AS UNDISCLOSED WI THOUT CONSIDERING THE EXPLANATION OFFERED BY THE ASSESSEE AND WITHOUT CON SIDERING THE FACT THAT THE CASH DEPOSIT IN THE BANK IS PARTLY OUT OF OWN S OURCES AS SHOWN IN THE RETURN AND PARTLY OUT OF WITHDRAWALS FROM BANK EARL IER AND RE-DEPOSITED LATER ON AND NECESSARY EVIDENCES IN THIS REGARD WER E SUBMITTED DURING ASSESSMENT PROCEEDINGS AS WELL AS APPELLATE PROCEED INGS. 2.THAT THE APPELLANT CRAVES, LEAVE TO ADD, TO URGE, TO ALTER OR TO AMEND ANY OF THE GROUND OF THE APPEAL ON OR BEFORE THE DATE OF HEARING . ITA NO. 300/IND/2017 ASSESSMENT YEAR 2013-14 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LEARNED CIT (APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS.23 ,L1,760/- MADE ON ACCOUNT OF CASH FOUND DURING THE COURSE OF SEARCH T REATING THE SAME AS UNEXPLAINED WITHOUT CONSIDERING THE EXPLANATION OFF ERED BY THE ASSESSEE AND WITHOUT CONSIDERING THE FACT THAT THE CASH FOUN D BELONGS TO VARIOUS PERSONS AND NECESSARY EVIDENCES IN THIS REGARD WERE SUBMITTED DURING THE ASSESSMENT PROCEEDINGS AS WELL AS DURING APPELLATE PROCEEDINGS. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LEARNED CIT(APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS .23,OL,300/- BEING UNDISCLOSED RECEIPT FROM VARIOUS PERSONS WITHOUT CO NSIDERING THE EXPLANATION OFFERED BY THE ASSESSEE AND WITHOUT CON SIDERING THE FACT THAT THE DOCUMENT LPS-L PAGE-4 IS NOT THE CASH RECEIPT BUT CONTAIN THE DETA ILS OF VARIOUS PERSONS TO WHOM CONTRACT ALLOTTED BY MUNICI PAL CORPORATION, BHOPAL, THE AMOUNT OF APPLICATION FORM AND AMOUNT OF SECURI TY DEPOSIT IS WRITTEN IN IT. THE LEARNED CIT (APPEALS) ALSO ERRED IN NOT APPRECIATING THE FACT T HAT THE DOCUMENT LPS-L PAGE 4 IS NOT RELATED WITH THE ASSESSEE BUT RELATED WITH HIS BROTHER AND NECESSARY EVIDENCES AND EXPLANATION OF EACH CONTRACT WORK WAS GIVEN DURING APPELLATE PROCEEDINGS BUT WAS NOT CONSIDERED. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LEARNED CIT (APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS.L, 30,OOO/- BEING UNEXPLAINED EXPENDITURE FOR PURCHASE OF JEWELLERY W ITHOUT CONSIDERING THE EXPLANATION OFFERED BY THE ASSESSEE AND WITHOUT CON SIDERING THE FACT THAT THE SAID JEWELLERY WAS PURCHASED OUT OF INCOME OF T HE YEAR AND NECESSARY EVIDENCES IN THIS REGARD WERE SUBMITTED DURING ASSE SSMENT PROCEEDINGS AS WELL AS APPELLATE PROCEEDINGS. SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 15 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LEARNED CIT (APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS.L, 95,OOO/- BEING UNDISCLOSED RECEIPT WITHOUT CONSIDERING THE EXPLANA TION OFFERED BY THE ASSESSEE AND WITHOUT CONSIDERING THE FACT THAT THE DOCUMENTS ON THE BASIS OF WHICH ADDITION MADE IS OF THE NATURE OF DUMB DOC UMENT HAVING NO EVIDENTIARY VALUE IN THE EYE OF LAW. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LEARNED CIT (APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS.3, 44,OOO/- BEING CASH DEPOSIT IN BANK TREATING THE SAME AS UNDISCLOSED WI THOUT CONSIDERING THE EXPLANATION OFFERED BY THE ASSESSEE AND WITHOUT CON SIDERING THE FACT THAT THE CASH DEPOSIT IN THE BANK IS PARTLY OUT OF OWN S OURCES AS SHOWN IN THE RETURN AND PARTLY OUT OF WITHDRAWALS FROM BANK EARL IER AND RE-DEPOSITED LATER ON AND NECESSARY EVIDENCES IN THIS REGARD WER E SUBMITTED DURING ASSESSMENT PROCEEDINGS AS WELL AS APPELLATE PROCEED INGS. 6. THAT THE APPELLANT CRAVES, LEAVE TO ADD, TO URGE , TO ALTER OR TO AMEND ANY OF THE GROUND OF THE APPEAL ON OR BEFORE THE DATE O F HEARING. 18. THE APPEALS RAISED BY THE ASSESSEE IN VARIOUS ASSE SSMENT YEARS ARE SUMMARIZED ISSUE WISE IN FOLLOWING MANNER; PARTICULARS 115/IND/17 A.Y 08-09 116/IND/17 A.Y 09-10 117IND/17 A.Y 10-11 118/IND/17 A.Y 11-12 119/IND/17 A.Y 12-13 300/IND/17 A.Y 13-14 UNDISCLOSED RECEIPT 27,27,834 (GROUND.1) 16,00,893 (GROUND.1) 1,64,785 (GROUND.1) - - 23,01,300 (GROUND NO.2) UNDISCLOSED CASH DEPOSIT - - 49,500 (GROUND 3) 1,00,000 (GROUND 2) 1,75,000 (GROUND 1) 3,44,000 (GROUND 5) UNEXPLAINED INVESTMENT - 3,00,000 (GROUND 2) - - - - UNEXPLAINED INVESTMENT U/S 69B 4,09,266 (GROUND 3) 22,33,100 (GROUND1) SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 16 UNDISCLOSED INVESTMENT - - 24,75,000 GROUND 2) - - - UNEXPLAINED CASH FOUND - - - - - 23,11,760 (GROUND 1) UNEXPLAINED JEWELLERY - - - - - 1,30,000 (GROUND 3) LPS-4 1,95,000/- (GROUND 4) 19. FROM PERUSAL OF THE ABOVE CHART FOR SOME OF THE A SSESSMENT YEARS COMMONS ISSUES HAVE BEEN RAISED. 20. WE WILL FIRST TAKE UP COMMON GROUND RAISED BY THE ASSESSEE FOR ASSESSMENT YEAR 2008-09, 2009-10, 2010-11 AND 2013- 14 RELATING TO THE ADDITION FOR UNDISCLOSED RECEIPTS CONFIRMED BY THE LD. CIT(A). 21. BRIEF FACTS RELATING TO THIS ISSUE ARE THAT DURING THE COURSE OF SEARCH LOOSE PAPERS APPEARING NO. 4 & 5 OF LPS-1 WE RE FOUND AND SEIZED. THESE LOOSE PAPERS CONTAINED DETAILS OF VAR IOUS PARTIES. IN SOME PAPERS THERE WAS A MENTION OF THE DATES. WHEN THE ASSESSEE WAS ASKED TO EXPLAIN THE TRANSACTIONS MENTIONED IN THE LOOSE PAPERS IT WAS SUBMITTED THAT THESE PAPERS DO NOT BELONG TO THE ASSESSEE AND NOT IN THE HANDWRITING OF THE ASSESSEE. TWO BROTHE RS ARE ENGAGED IN THE ENGINEERING WORK WITH THE GOVERNMENT AND ONE IS A CONTRACTOR. SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 17 THE ASSESSEE LIVES IN A JOINT FAMILY. THERE IS HIGH POSSIBILITY THAT THESE DOCUMENTS HAVE SOME CONNECTION WITH THE CONTR ACT BUSINESS THE ASSESSEES BROTHER. WITH REGARD TO THE AMOUNT OF RS.23,01,300/- WHICH WAS CALCULATED BY THE LD. A.O ON THE BASIS OF FIGURES APPEARING ON THE LOOSE PAPERS, SINCE NO DATE WAS ME NTIONED, THE TOTAL OF THIS COMES TORS.23,01,300/- WAS CONFRONTED TO THE ASSESSEE FOR NECESSARY EXPLANATION. IT WAS SUBMITTED THAT T HE PARTICULARS OF SEIZED PAPERS LPS-1 PAGE-4 WHICH DO NOT HAVE ANY DA TE RELATES TO APPLICATION FORM FEES, SECURITY MONEY RECEIVED AND SOME OF THE NAMES RELATES TO SOME CONTRACTORS BUT THERE IS NO D IRECT NEXUS OF THE ASSESSEE WITH THESE SEIZED DOCUMENTS. LD. A.O WAS NOT CONVINCED AND MADE THE ADDITION FOR UNDISCLOSED RECEIPTS FOR THE ASSESSMENT YEAR 2008-09, 2009-10, 2010-11 AND 2013-14 AT RS.2 7,27,834/-, RS.16,00,893/-, RS.1,64,785/- AND RS.23,01,300/-. WHEN THE ASSESSEE CAME UP BEFORE LD. CIT(A) HE FAILED TO SUC CEED AS LD. CIT(A) CONFIRMED THE VIEW TAKEN BY LD. A.O. 22. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 23. LD. COUNSEL FOR THE ASSESSEE MADE FOLLOWING WRITTE N SUBMISSIONS. SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 18 (A) WRITTEN SUBMISSIONS WITH REFERENCE TO ADDITION FOR UNDISCLOSED RECEIPT OF RS. 27,27,834/-, RS.16,00,89 3/- AND RS.1,64,785/- FOR ASSESSMENT YEARS 2008-09, 2009-10 AND 2010-11 RESPECTIVELY FACTS: THE FOLLOWING ADDITIONS IN VARIOUS A.V.'S WERE DONE ON THE BASIS OF SOME LOOSE PAPERS (LPS1- PG.5) FOUND DURING SEARCH AT TH E RESIDENCE OF ASSESSEE. (PB:93). DETAILS OF CONTENTS GIVEN AT PB 92. A. Y . 2008 - 09 2009 - 10 2010 - 11 VARIOUS ADDITIONS MADE 12,15,083.00 3,28,437.00 1,09,077.00 AS PER LPS-1, PG.5 12,71,930.00 3,17,590.00 19,860.00 2,40,821.00 1,53,550.00 35,848.00 6,12,759.0 0 1,84,895.00 3,662.00 TOTAL 27,27,834.00 16,00,893.00 1,64,785.00 SUBMISSIONS BEFORE AO. - THE ROUGH PAPERS DO NOT BELONG TO THE ASSESSEE AND WERE NOT IN THE HANDWRITING OF THE ASSESSEE. - IT IS A DUMB DOCUMENT, WHETHER RECEIVED OR PAID, NO T CLEAR. TRANSACTION THEREIN IS NOT CLEAR. NOT IN HANDWRITIN G OF ASSESSEE, ASSESSEE UNABLE TO EXPLAIN. TWO BROTHERS OF ASSESSEE ARE IN ENGINEER WORKS IN G OVT. DEPARTMENT SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 19 AND ONE BROTHER IS A CONTRACTOR. THE ASSESSEE BELONGS TO A VERY SOCIAL FAMILY. THERE WAS A HIGH POSSIBILITY THAT SOME PERSON MIGHT HAVE LEFT THE PA PERS AT THE ASSESSEE'S RESIDENCE. WHAT AO DID? NO MATERIAL EVIDENCE WAS SUBMITTED BY THE ASSESSEE TO SUBSTANTIATE THE CLAIM . IT WAS PRESUMED THAT THE TRANSACTIONS RECORDED IN T HIS LOOSE PAPER PERTAIN TO THE ASSESSEE AND THE CONTENT OF TH IS PAPER WERE TRUE. THE ARGUMENT OF ROUGH ESTIMATIONS IS A CONCOCTED ST ORY AS THE ENTRIES IN THE PAPER WERE EXACT. WHAT LD. CIT(A) DID? ASSESSEE FURTHER SUBMITTED THAT THIS PAPER RELATES TO BROTHER OF ASSESSEEE, MR. VINOD TRIPATHI, WHO WAS ENGINEER IN MUNICIPAL C ORPORATION. THE SAME RELATED TO WORK ALLOTMENT. EVIDENCES IN FORM OF BAN K ACCOUNT OF GIRIJA CONSTRUCTION AND ALOK MISHRA WERE SUBMITTED. PB 94- 95. THE FACT THAT THE LPS PAGE 5 CONTAINED DETAILS OF W ORK ALLOTTED BY MUNICIPAL CORPORATION, BHOPAL TO DIFFERENT PERSONS AND BELONGED TO THE BROTHER OF THE ASSESSEE MR. VINOD TRIPATHI WAS NOT APPRECIATED BY THE LD. CIT(A} BECAUSE OF FOLLOWING REASONS: - THOUGH AMOUNT WAS APPEARING IN THE BANK ACCOUNT OF GIRIJA CONSTRUCTION, NO SUPPORTING EVIDENCE SUCH AS AN AFF IDAVIT OR CONFIRMATION OR WORK ALLOTMENT LETTER IS FILED. SUC H EVIDENCE WOULD PROVE THAT THE AMOUNT DOES NOT RELATE TO THE APPELLANT BUT TO HIS BROTHER. - THOUGH AMOUNT WAS APPEARING IN THE BANK ACCOUNT OF SHRI ALOK MISHRA, IT WAS NOT CLEAR THAT THE BANK STATEMENT BE LONGED TO SHRI SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 20 ALOK MISHRA. IDENTITY OF SHRI ALOK MISHRA HAS NOT B EEN PROVED AND DETAILS LIKE COPY OF INCOME TAX RETURNS, WORK A LLOTMENT LETTER, AFFIDAVIT, DETAILS OF OFFICE ADDRESS ARE NOT FILED. SUBMISSIONS: 1. THE DOCUMENT IS A DUMB DOCUMENT - IT IS NOT IN HANDWRITING OF ASSESSEE - THE CONTENT IS NOT SHOWING NATURE OF TRANSACTION WHETHER RECEIPT OR PAYMENT. - THE DOCUMENT COULD NOT BE CORRELATED WITH ANY COR ROBORATIVE EVIDENCE. 2. THE DOCUMENT BELONGS TO BROTHER OF THE ASSESSEE SHRI VINOD TRIPATHI. IT IS SUBMITTED THAT THE LOOSE PAPERS (LP S PAGE-5) ON THE BASIS OF WHICH ADDITION WERE MADE RELATES TO THE YO UNGER BROTHER OF THE ASSESSEE, SHRI VINOD TRIPATHI, WHO IS WORKING I N MUNICIPAL CORPORATION, BHOPAL AS AN ENGINEER. THE CONTENTS OF THE DOCUMENTS RELATE WITH THE WORK ORDER ALLOTTED BY BHOPAL UNIVE RSITY TO THE PERSONS MENTIONED IN COLOUMN 2 THE FOLLOWING TABLE. S.NO. CONTRACT GIVEN TO NAMES APPEARING IN LPS 5 PB AMOUNT 1 ALOK M ISHRA TEACHERS QUARTERS PB 97 3.28,437/ - 2 ALOK MISHRA ELECTRONIC DEPARTMENT PB 96 3,17,590/ - 3 GIRIJA CONSTRUCTIONS CRIM (CRISHAMACHARI INSTITUE OF MANAGEMENT)PB 94 PB 94 12,15,083/ - 4 ALOK MISHRA GIRLS HOSTEL PB 96 12,71,930 SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 21 PB 97 PB 96 1,53,550/- 6,12,759/- 5 ALOK MISHRA COMMERCE DEPARTMENT PB 96 PB 97 1,84,895/ - 9,662/- THE ABOVE FIGURES WHICH ARE IN DISPUTE WERE PAID TO GIRIJA CONSTRUCTION AND SHRI ALOK MISHRA BY MUNICIPAL CORP ORATION. ASSESSEE HAS NO CONNECTION WITH MUNICIPAL CORPORATI ON. BROTHER OF ASSESEEE IS EMPLOYEE IN MUNICIPAL CORPORATION. NO N EXUS OF ASSESSEE WITH THESE PAPERS WERE ESTABLISHED. THE BANK ACCOUN TS OF GIRIJA CONSTRUCTIONS AND SHRI ALOK MISHRA ARE ON RECORD (P B:94-97). EXACT MATCHING OF SUCH FIGURES CANNOT BE A COINCIDENCE. H ENCE, FINDINGS OF ID.CIT{A) THAT THE CLAIMS MADE BY THE ASSESSEE ARE NOT SUPPORTED BY PROPER EVID~NCES WAS WRONG, DEVOID OF ANY MERIT AND UNSUSTAINABLE. LD LOWER AUTHORITIES CHOOSE NOT TO EXAMINE THE BROT HER, VINOD TRIPATHI, NOR THE PARTIES MENTIONED THEREIN. THE ABOVE SUBMISSIONS AND EVIDENCES PROVE TO THE HI LT THAT THE LOOSE PAPERS ON THE BASIS OF WHICH ADDITIONS ARE MADE DO NOT BELONG TO THE ASSESSEE. THE APPELLANT THEREFORE PRAYS THAT THE ADDITION MAY KINDLY BE DELETED. (B) WRITTEN SUBMISSIONS WITH REFERENCE TO ADDITION FOR UNDISCLOSED RECEIPT OF RS.23,01,300/- FOR ASSESSMEN T YEAR 2013-14 SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 22 AO PG. 6-9; PARA 7.4 CITCA) PG. 16 ; PARA 4.4 FACTS 1. THAT DURING THE COURSE OF SEARCH PROCEEDINGS, A DOC UMENT LPS-1,PG 4 (AA PG. 7) WAS SEIZED WHICH CONTAINS DETAILS OF N A MES, FEES OF APPLICATION FORM AND SECURITY MONEY. NAME AMOUNT DEEPAK THAKUR 4,40,400 RAJESH PRADHAN 2,01,900 SUDHIR 1,17,300 PARVEZ 2,65,100 B.D CHOURASIA 2,29,600 VINOD PANDEY 3,36,000 VIRENDRA SINGH 1,85,000 PAPPU BA RUA 3,75,000 SHIV SHARMA 89,000 SHANKAR 39,000 RANI SATI 23,000 TOTAL 23,01,30 0 NO DATE IS MENTIONED. IT IS THE PRESUMPTION OF THE ID AO THAT THE SAME RELATES TO CURRENT YEAR. 2. THE LD AO ASSUMED THAT SINCE THE LPS WAS SEIZED DUR ING THE COURSE OF SEARCH ON 20.06.12 AND NO DATE WAS MENTIO NED IN IT, THUS IT WAS CONTENDED TO BE PERTAINING TO A.Y. 2013 -14. IT WAS FURTHER ALLEGED THAT THE DETAILS OF THESE RECEIPTS WERE NOT RECORDED IN BOOKS OF ACCOUNTS OF THE ASSESSEE AND T HEREFORE ARE UNDISCLOSED RECEIPTS. 3. THE ID CIT(A) ALSO CONFIRMED THE ADDITION. SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 23 SUBMISSIONS 1. THE DOCUMENT IS UNDATED, NOT IN HANDWRITING OF ASSE SSEE AND IS NOT AT ALL RELATED TO HIM. IT IS A DUMB DOCUMENT 2. THE ASSESSEE LIVES IN A JOINT FAMILY ARRANGEMENT AN D HIS BROTHER SHRI VINOD TRIPATHI IS AN ENGINEER IN MUNICIPAL COR PORATION, BHOPAL. THE NAMES ENTERED IN THE SHEET ARE OF CONTRACTOR WH OM CONTRACT WORKS WERE ALLOTTED BY MUNICIPAL CORPORATION. 24. PER CONTRA DEPARTMENTAL REPRESENTATIVE VEHEMENTLY ARGUED AND SUPPORTING THE ORDERS OF BOTH THE LOWER AUTHORITIES . 25. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RE CORDS PLACED BEFORE US AND ALSO GONE THROUGH THE IMPUGNED ORDERS AND DOCUMENTS. COMMON GROUND HAVE BEEN RAISED FOR ASSE SSMENT YEAR 2008-09, 2009-10, 2010-11 & 2013-14 FOR THE ADDITIO N FOR UNDISCLOSED RECEIPTS OF RS.27,27,834/-, RS.16,00,89 3/-, RS.1,64,785/- AND RS.23,01,300/- RESPECTIVELY. 26. DURING THE COURSE OF SEARCH IN THE SEIZED RECORDS A T LPS-1 PAGE 4 & 5 CERTAIN TRANSACTIONS WERE MENTIONED THE TWO S EIZED DOCUMENTS WERE NOT SIGNED BY THE ASSESSEE OR ANY OTHER PERSON . ASSESSEE HAS DISOWNED THESE TWO LOOSE PAPERS. ASSESSEE LIVES IN A JOINT FAMILY WITH THREE BROTHERS OF WHICH DEVENDRA TRIPATHI AND VINOD TRIPATHI ARE ENGINEERS AND ARE IN GOVERNMENT SERVICE AND ONE BROTHER SHRI SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 24 AJAY TRIPATHI WORKS AS A CONTRACTOR. THE ASSESSEE I S EMPLOYED WITH BURKATTULLAH UNIVERSITY, BHOPAL. ALL THESE FOUR BR OTHERS LIVES WITH THEIR FAMILY ALONG WITH THEIR PARENTS NAMELY SHRI G .P. TRIPATHI AND SMT. SAROJ TRIPATHI. IN THE ALLEGED SEIZED DOCUMEN TS IN ONE OF THE SHEETS DATES ARE MENTIONED ALONG WITH SOME NAMES. LD. A.O BIFURCATED THE FIGURES AS PER THE DATE WHICH WERE F ALLING UNDER ASSESSMENT YEAR 2008-09, 2009-10 AND 2010-11 TOTAL LING TO RS.27,27,834/- , RS.16,00,893/- AND RS.1,64,785/- A ND THE ADDITION OF RS.23,01,300/-FOR ASSESSMENT YEAR 2013-14 WAS ON THE BASIS OF ANOTHER LOOSE PAPER ON WHICH NO DATE WAS MENTIONED. 27. WITH REGARD TO THE ADDITION FOR 2008-09, 2009-10 AN D 2010-11 WE FIND THAT THE ASSESSEE DURING THE COURSE OF APPE LLATE PROCEEDINGS GAVE THE DETAILS IN ORDER TO PROVE THAT ADDITION FO R ASSESSMENT YEARS 2008-09, 2009-10 AND 2010-11 ARE UN CALLED FOR AS T HE ALLEGED AMOUNT MENTIONED WITH THE DATES RELATES TO THE BUSI NESS TRANSACTIONS CARRIED OUT BY HIS BROTHER SHRI AJAY T RIPATHI. COPIES OF BANK STATEMENTS WERE ALSO FILED WHICH ARE PLACED AT PAPER BOOK PAGE 94 TO 97. THESE PAGES CONTAINS THE BANK STATEMENTS AND FOLLOWING ENTRIES ARE APPEARING IN THESE BANK STATEMENTS; SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 25 S.NO CONTRACT GIVEN TO NAMES APPEARING IN LPS 5 PB AMOUNT 1 ALOK MISHRA TEACHERS QUARTERS PB 97 3.28,437/ - 2 ALOK MISHRA ELECTRONIC DEPARTMENT PB 96 3,17,590/ - 3 GIRIJA CONSTRUCTIONS CRIM (CRISHAMACHARI INSTITUE OF MANAGEMENT)PB 94 PB 94 12,15,083 4 ALOK MISHRA GIRLS HOSTEL PB 96 PB 97 PB 96 12,71, 930 1,53,550/- 6,12,759/- 5 ALOK MISHRA COMMERCE DEPARTMENT PB 96 PB 97 1,84,895/ - 9,662/- 28. ALL THE SAID FIGURES ARE APPEARING ON THE BANK STA TEMENT OF M/S. GIRIJA CONSTRUCTIONS AS WELL AS THE JOINT BANK ACCO UNT OF SHRI AJAY SHARMA AND SHRI ALOK MISHRA. IT IS CLEARLY VISIBLE THAT ALL THE ALLEGED ENTRIES IN THE SEIZED DOCUMENTS STANDS EXPLAINED WI TH THE BANK STATEMENT AND THEY CANNOT BE DOUBTED AS UNDISCLOSED RECEIPTS IN THE HANDS OF THE ASSESSEE SINCE THE ASSESSEES NAME IS NOWHERE APPEARING IN THE SEIZED DOCUMENT. WE, THEREFORE ARE OF THE CONSIDERED VIEW THAT NO ADDITION FOR UNDISCLOSED RE CEIPTS FOR ASSESSMENT YEARS 2008-09, 2009-10 AND 2010-11 AT RS .7,27,834/-, RS.16,00,893/- AND RS. 1,64,785/- RESPECTIVELY IS C ALLED FOR AND DIRECT THE LD.A.O TO DELETE THE SAME. HOWEVER, THE LD. A.O WILL BE AT SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 26 LIBERTY TO MAKE NECESSARY INVESTIGATION IF REQUIRED TO ASSESS THE CORRECT INCOME OF SHRI ALOK MISHRA SPECIFICALLY WIT H REGARD TO THE SEIZED DOCUMENT LPS-1 PAGE-5. WE ACCORDINGLY SET A SIDE THE FINDING OF LD. CIT(A) AND DELETE GROUND NO.1 FOR ASSESSMENT YEAR 2008-09, 2009-10 AND 2010-11. 29. WITH REGARD TO THE ADDITION OF RS.23,01,300/- FOR UNDISCLOSED RECEIPT MADE BY THE LD. A.O ON THE BASIS OF SEIZED DOCUMENT APPEARING IN LPS-1 PAGE-4, THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT THE ALLEGED DOCUMENT IS UNDATED AND NOT IN THE HANDWRITING OF THE ASSESSEE AND NOT AT ALL RELATED TO HIM AND THE SAME ARE TO BE CONSIDERED AS A DUMB DOCUMENT FOR TH E PURPOSE OF ASSESSING THE INCOME. HE ALSO CONTENDED THAT SINCE HE LIVES IN JOINT FAMILY AND HIS BROTHER IS WORKING IN MUNICIPAL CORP ORATION, BHOPAL THESE PAPERS MAY BE RELATED TO HIM. FROM PERUSAL O F THE SEIZED DOCUMENT WHICH ALSO FORMS PART OF THE ASSESSMENT OR DER AND HAS BEEN REPRODUCED AT PAGE-7, WE FIND THAT IT CONTAIN S THE NAME, AMOUNT FOR THE FORM, SECURITY AND TOTAL AMOUNT. IN THE NAMES, APART FROM THE INDIVIDUAL PERSONS THERE ALSO NAMES OF BUS INESS CONCERNS NAMELY GIRIJA CONSTRUCTION, RANISATI, LEGEND MARKET ING. THIS SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 27 PARTICULAR SHEET IS NOT SIGNED BY ANY PERSON BUT FI GURES MENTIONED THEREIN ARE IN THE FORM OF AN ACCOUNT IN WHICH OUT OF THE GROSS AMOUNT SOME AMOUNT IS SUBTRACTED. PRIMA FACIE THES E TRANSACTIONS LOOKS TO BE PART OF BUSINESS CONCERN OR THE BUSINES S OF THE CONTRACTOR. THE LD. A.O IN ORDER TO MAKE ANY ADD ITION MUST BRING SOME MATERIAL EVIDENCE ON RECORD TO PROVE THE NEXUS OF THE ASSESSEE WITH THE ALLEGED TRANSACTION MENTIONED THEREIN LD. A.O WAS WELL AWARE THAT THE ASSESSEE LIVES IN A JOINT FAMILY AN D TWO BROTHERS ARE WORKING AT MUNICIPAL CORPORATION AND ONE INTO THE B USINESS OF CONTRACTOR. HE OUGHT TO HAVE CONFRONTED OTHER PART IES PRESENT IN THE PREMISES WITH THESE DOCUMENTS. LEAVING THE BURDEN ONLY ON THE ASSESSEE TO EXPLAIN EACH AND EVERY DOCUMENT FOUND AT THE RESIDENTIAL PREMISES WHERE OTHER FAMILY MEMBERS ARE ALSO LIVING CANNOT BE SAID TO BE JUSTIFIED. IN OUR CONSIDERED VIEW SINCE NO NEXUS HAVE BEEN ESTABLISHED BY THE REVENUE AUTHORITIES FO R THE ASSESSEE OF HAVING ENTERED INTO THE ALLEGED TRANSACTION MENTION ED IN THE SEIZED DOCUMENT WHICH IS NEITHER SIGNED NOR CONTAINS ANY D ATES CANNOT BE TAKEN AS A BASIS TO MAKE THE ADDITION IN THE HANDS OF THE ASSESSEE. SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 28 30. HON'BLE HIGH COURT OF GUJARAT IN THE CASE OF CIT (2008) 378 HAS HELD THAT THE ADDITIONS MADE BY THE AO ON THE BASIS OF SEIZED PAPERS LYING WITHOUT ANY CORROBORATIVE EVIDENCE CAN NOT BE SUSTAINED. SIMILAR VIEW WAS ALSO TAKEN BY THE CO- ORDINATE BENCH IN THE CASE OF M.M. FINANCIERS V/S DCIT 2007 107 TTJ 2 00 (CHENNAI). 31. HONBLE SUPREME COURT IN THE CASE OF DHAKESHWARI C OTTON MILLS LTD V/S CIT 1954 261 ITR 775 HELD THAT IN MAKING ASSESSMENT U/S 23(3) OF THE INDIAN INCOME TAX ACT, THE ITO IS NOT FRACTURED BY TECHNICAL RULES OF EVIDENCE AND FLUCTUATIONS AND HE IS ENTITLED TO ACT ON MATERIAL WHICH MAY NOT ACCEPT AN EVIDENCE IN THE CO URT OF LAW, BUT THE IT IS NOT ENTITLED TO MAKE AND POWER COMES AND MAKI NG ASSESSMENT WITHOUT REFERENCE TO ANY EVIDENCE OR ANY MATERIAL D ELIVERED. THERE MUST BE SOMETHING MORE THAN MORE WHERE SUSPICION TO SUPPORT THE ASSESSMENT U/S 23(3). THE RULE OF LAW ON THIS SUBJECT HAS BEEN FULLY AND RIGHTLY STATED BY HONBLE HIGH COURT IN THE CAS E OF SREE SHANMUGAR MILLS LTD V/S COMMISSIONER OF INCOME TAX, PUNJAB 1944 12 ITR 393. SIMILAR VIEW WAS ALSO TAKEN BY DELHI T RIBUNAL IN THE CASE OF BANSAL STRIPS V/S ACIT (SUPRA) OBSERVING TH AT THE A.O CANNOT FIRST MAKE CERTAIN CONJECTURES AND SURMISES AND THE REAFTER DEEMED SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 29 PROVISIONS BASED ON SUCH CONJECTURES AND SURMISES. IN THE ABSENCE OF MATERIAL AS TO THE NATURE OF OWNERSHIP OF THE TR ANSACTION, UNDISCLOSED INCOME CANNOT BE ASSESSED IN THE HANDS OF THE ASSESSEE SUMMARILY BY ARITHMETICALLY TOTAL VARIOUS FIGURES D OTTING DOWN ON THE LOOSE DOCUMENT. ANY OTHER SEIZED FOR THE PURPOSE O F EXERCISING TO DEEMED PROVISIONS DUMB DOCUMENTS ORDER DOCUMENTS WI TH NO CERTAINTY FOR NO EVIDENTIAL VALUE. 32. WE THEREFORE RESPECTFULLY FOLLOWING THE ABOVE JUDG MENTS AND IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE ARE O F THE CONSIDERED VIEW THAT THE ADDITION MADE FOR THE UNDISCLOSED REC EIPT OF RS.23,01,300/- FOR ASSESSMENT YEAR 2013-14 NEEDS TO BE DELETED SINCE THE REVENUE AUTHORITIES HAVE MADE THE ADDITIO N MERELY ON THE BASIS OF SEIZED DOCUMENT WHICH IS AN UNSIGNED DOCUM ENT HAVING NO NAME AND DATE AND NO OTHER CORROBORATIVE EVIDENCE H AVE BEEN BROUGHT ON RECORD BY THE REVENUE AUTHORITIES TO SUP PORT THE ADDITION FOR UNDISCLOSED RECEIPT. ACCORDINGLY GROUND NO.2 O F THE ASSESSEES APPEAL FOR ASSESSMENT YEAR 2013-14 IS ALLOWED. 33. NOW WE TAKE UP SECOND COMMON ISSUE RELATING TO ADD ITION OF UNDISCLOSED/UNEXPLAINED CASH DEPOSITS MADE IN 2010- 11, 2011-12, SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 30 2012-13 AND 2013-14 AT RS. 49,500/-, RS.1,00,000/-, RS.1.75,000/- AND RS.3,44,000/- RESPECTIVELY. 34. BRIEF FACTS RELATING TO THIS ADDITION ARE THAT LD . A.O ON PERUSAL OF THE BANK STATEMENT OF THE ASSESSEE FOUND THAT HU GE AMOUNT OF CASH WAS DEPOSITED IN THE BANK ACCOUNT WITH STATE B ANK OF INDIA. THOUGH THE ASSESSEE GAVE DETAILS OF DATE WISE DEPOS ITS WITH THE EXPLANATION ABOUT THEIR SOURCE BUT LD. A.O WAS NOT CONVINCED AND HE MADE ADDITION FOR UNDISCLOSED/UNEXPLAINED CASH DEPO SITS OF RS. 49,500/-, RS.1,00,000/-, RS.1.75,000/-AND RS.3,44,0 00/- FOR ASSESSMENT YEARS IN 2010-11, 2011-12, 2012-13 AND 2 013-14 RESPECTIVELY. THE ASSESSEE GOT PART RELIEF FROM LD . CIT(A). NOW THE ASSESSEE IS IN APPEAL BEFORE US RAISING THIS COMMON ISSUE FOR FOUR ASSESSMENT YEARS FROM 2010-11, 2011-12, 2012-13 AN D 2013-14. 35. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE IM PUGNED ADDITION WERE UNCALLED FOR AS THE ASSESSEE HAS EXPL AINED THE SOURCE OF EACH AND EVERY DEPOSITS THROUGH CASH FLOW STATEM ENT. HE ALSO SUBMITTED THAT THE SOURCE OF THE CASH DEPOSITS ARE EITHER THROUGH WITHDRAWALS FROM THE BANK OR FROM THE INCOME EARNED DURING THE YEAR WHICH ARE DULY OFFERED TO TAX. IN SUPPORT OF THE CONTENTION LD. SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 31 COUNSEL FOR THE ASSESSEE HAS PROVIDED FOLLOWING SUM MARY OF DATE WISE WITHDRAWAL AND CASH DEPOSIT IN BANK. DATE OF DEPOSIT AMOUNT SOURCE AMOUNT 25.05.09 49,500 CASH WITHDRAWAL ON 13.05.09 10,500 CASH WITHDRAWAL ON 13.05.09 20,000 CASH WITHDRAWAL ON 13.05.09 10,000 INCOME FROM OTHER SOURCES 9, 000 49,500/- 07.07.10 10,000 OTHER INCOME 10,000 23.07.10 10,000 OTHER INCOME 10,000 23.07.10 20,000 OTHER INCOME 20,000 29.07.10 1400 OTHER INCOME 1400 TOTAL A.Y 10- 11 49,400 03.01.11 20,000 OUT OF WITHDRAWAL FROM BANK ON 10.11.10 RS. 3,50,000/- 20,000 03.01.11 40,000 OUT OF WITHDRAWAL FROM BANK ON 10.11.10 RS. 3,50,000/- 40,000 TOTAL 60,000 GRAND TOTAL A.Y. 11- 12 1,01,4 00/- 11.04.11 65,000 OUT OF WITHDRAWAL FROM BANK ON 10.11.10 RS. 3,50,000/- 65,000 16.08.11 30,000 OUT OF WITHDRAWAL FROM BANK ON 10.06.11 RS.15,000 10,000 OUT OF WITHDRAWAL FROM BANK ON 07.07.11 RS.15,000 10,000 OUT OF WITHDRAWAL FROM BANK ON 01.08.11 RS.10,000 10,000 TOTAL 30,000 19.10.11 20,000 OUT OF WITHDRAWAL FROM BANK ON 29.09.11 RS.25,000 20,000 21.10. 11 10,000 INCOME FROM OTHER SOURCE SHOWN IN RETURN 10,000 18.02.12 25,000 OUT OF WITHDRAWAL FROM BANK ON 03.01.12 RS.25,000 25,000 SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 32 25.02.12 5,000 INCOME FROM OTHER SOURCES SHOWN IN RETURN 5,000 25.03.12 25,000 OUT OF WITHDRAWAL FROM BANK ON 08.02.12 RS.14,000 14,000 GRAND TOTAL A.Y.12- 13 1,80,000 18.04.12 25,000 OUT OF WITHDRAWAL FROM BANK ON 03.04.12 RS.49,500 25,000 09.05.12 12,000 OUT OF WITHDRAWAL FROM BANK ON 17.04.12 RS 15,000 12,000 15.05.12 25,000 INCOME FROM OTHER SOURCES SHOWN IN RETURN 2 5,000 16.05.12 20,000 INCOME FROM OTHER SOURCES SHOWN IN RETURN 20,000 19.05.12 20,000 OUT OF WITHDRAWAL FROM BANK ON 17.05.12 RS 20,000 20,000 05.06.12 10,000 INCOME FROM OTHER SOURCES SHOWN IN RETURN 10,000 19.07.12 20,000 INCOME FROM OTHER SOURCES S HOWN IN RETURN 10,000 OUT OF WITHDRAWAL FROM BANK ON 14.07.12 RS 10,000 10,000 26.07.12 10,000 INCOME FROM OTHER SOURCES SHOWN IN RETURN 10,000 21.08.12 25,000 OUT OF WITHDRAWAL FROM BANK ON 29.08.12 RS 1,00,000 25,000 31.08.12 25,000 OUT OF WITHDRAW AL FROM BANK ON 29.08.12 RS 1,00,000 25,000 03.09.12 10,000 OUT OF WITHDRAWAL FROM BANK ON 29.08.12 RS 1,00,000 10,000 17.09.12 25,000 OUT OF WITHDRAWAL FROM BANK ON 29.08.12 RS 1,00,000 25,000 18.09.12 4000 OUT OF WITHDRAWAL FROM BANK ON 29.08.12 RS 1,00,000 4,000 23.10.12 25,000 OUT OF WITHDRAWAL FROM BANK ON 25.09.12 RS 1,00,000 25,000 23.10.12 10,000 OUT OF WITHDRAWAL FROM INDUSIND BANK ON 01.10.12 RS 10,000 10,000 19.11.12 25,000 OUT OF WITHDRAWAL FROM BANK ON 01.11.12 RS 25,000 25,000 26.12.12 20,000 OUT OF WITHDRAWAL FROM BANK ON 18.12.12 RS 80,000 20,000 27.01.13 22,000 OUT OF WITHDRAWAL FROM BANK ON 22,000 SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 33 18.12.12 RS 80,000 22.03.13 15,000 OUT OF WITHDRAWAL FROM BANK ON 04.03.13 RS 15,000 GRAND TOTAL A.Y.13- 14 3,48,000 36. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE VEHEMEN TLY ARGUED AND SUPPORTING THE ORDERS OF LOWER AUTHORITIES. 37. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RE CORDS PLACED BEFORE US. THE COMMON ISSUE FOR FOUR ASSESSMENT YE ARS IN 2010-11, 2011-12, 2012-13 AND 2013-14 RELATES TO THE ADDITIO N FOR UNDISCLOSED/UNEXPLAINED CASH DEPOSITS AT RS.49,500/ -, RS.1,00,000/-, RS.1,75,000/- AND RS.3,44,000/-. TH E ASSESSEE IS AN EMPLOYEE OF BURKATULLAH UNIVERSITY, BHOPAL. APART F ROM SALARY INCOME HE HAS ALSO OFFERED INCOME FROM OTHER SOURCE S CONSISTENTLY FOR PAST MANY ASSESSMENT YEARS. TOTAL INCOME OF RS. 3,71,380/-, RS.3,79,740/- RS.4,52,890/- AND RS.8,06,690/-HAS BE EN OFFERED FOR ASSESSMENT YEAR 2010-11 TO 2013-14. THE LD. A.O MA DE THE ADDITION OF VARIOUS ENTRIES OF CASH DEPOSITED IN TH E BANK ACCOUNT HELD WITH STATE BANK OF INDIA. THIS BANK ACCOUNT I S DULY DISCLOSED IN THE RETURN OF INCOME BY THE ASSESSEE. ASSESSEE HAS GIVEN SUMMARY OF DATE WISE CASH WITHDRAWAL AND CASH DEPOS ITED BEFORE SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 34 BOTH THE LOWER AUTHORITIES AND BEFORE US. FROM PER USAL OF THIS SUMMARY WHICH IS IN THE FORM OF WRITTEN SUBMISSION FILED BY THE ASSESSEE IT IS DISCERNIBLE THAT PROPER EXPLANATION HAS BEEN GIVEN AGAINST EACH CASH DEPOSIT. SOURCE OF THE CASH DEPO SIT IS MOSTLY FROM THE CASH WITHDRAWAL FROM THE BANK OR FROM THE INCOM E EARNED BY THE ASSESSEE DURING THE YEAR. LOOKING TO THE TOTALITY OF FACTS AND INCOME EARNED BY THE ASSESSEE DURING THE YEAR AND THE AMOU NT OF CASH WITHDRAWAL FROM THE BANK ACCOUNT, WE ARE OF THE CON SIDERED VIEW THAT NO ADDITION FOR UNDISCLOSED CASH DEPOSITS WAS CALLED FOR IN THE HANDS OF THE ASSESSEE AND WE ACCORDINGLY DELETE THE ADDITION OF RS.49,500/-, RS.1,00,000/-, RS.1,75,000/- AND RS.3, 44,000/- AND ALLOW THIS COMMON ISSUE RAISED IN GROUND NO.3 FOR A SSESSMENT YEAR 2010-11, GROUND NO.2 FOR ASSESSMENT YEAR 2011-12, G ROUND NO.1 FOR ASSESSMENT YEAR 2012-13 AND GROUND NO.5 FOR ASS ESSMENT YEAR 2013-14. 38. NOW WE TAKE UP GROUND NO.2 OF ASSESSMENT YEAR 2009 -10 OF RS.3,00,000/- THROUGH WHICH THE ASSESSEE HAS CHALLE NGED THE FINDING OF LD. CIT(A) FOR UNEXPLAINED INVESTMENT IN THE PUR CHASE OF PROPERTY. 32. BRIEF FACTS RELATING TO THIS ADDITION ARE THAT DURING THE COURSE OF SEARCH AN AGREEMENT FOR SALE WAS SEIZED BEARING NO. LPS- SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 35 3/PAGE2MEENA RAI (SELLER) AND SHRI G.P. TRIPATHI (P URCHASER). AN ADVANCE PAYMENT OF RS.3,00,000/- WAS MENTIONED IN T HE AGREEMENT. DURING THE ASSESSMENT PROCEEDINGS ASSESSEE CONTENDE D THAT THIS TRANSACTION IS BETWEEN HIS FATHER AND SELLER SMT. M EENA RAI HAS NO CONNECTION WITH HIM. ASSESSEE HOWEVER FAILED TO CON VINCE THE LD. A.O, WHO FINALLY MADE THE ADDITION OF RS.3,00,000/- . NO RELIEF WAS GIVEN BY LD. CIT(A). NOW THE ASSESSEE IS IN APPEAL BEFORE US. 39. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AL LEGED AMOUNT OF RS.3,00,000/- WAS PAID THROUGH BANK ACCOUNT IN T HE NAME OF HIS FATHER. CONFIRMATION OF HIS FATHER IN THIS REGARD HAS BEEN FILED. THE DEAL MENTIONED IN THE AGREEMENT SALE WAS SUBSEQUENT LY CANCELLED. NO CASH WAS DEPOSITED IN THE ACCOUNT OF FATHER BEFO RE ISSUE OF CHEQUE. HE PRAYED FOR DELETION OF THE ADDITION. 40. LD. DEPARTMENTAL REPRESENTATIVE VEHEMENTLY ARGUED AND SUPPORTING THE ORDERS OF LOWER AUTHORITIES. 41. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RE CORDS PLACED BEFORE US. THROUGH THIS GROUND NO.2 FOR ASSESSMENT YEAR 2009-10 ADDITION OF RS.3,00,000/-FOR UNEXPLAINED INVESTMENT MADE BY THE LD. A.O AND CONFIRMED BY LD. CIT(A) IS CHALLENGED. THE SOURCE OF THIS ADDITION IS FROM THE AGREEMENT TO SALE FOUND DURI NG THE COURSE OF SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 36 SEARCH. IN THIS AGREEMENT TO SALE, SELLER IS SMT. MEENA RAI AND THE PURCHASER IS SHRI G.P. TRIPATHI WHO IS THE FATHER O F THE ASSESSEE. SHRI G.P. TRIPATHI IS A RETIRED GOVERNMENT SERVANT AND RECEIVES PENSION. HE HAS CONFIRMED THAT RS.3,00,000/- WAS P AID AS ADVANCE BY HIM FROM HIS BANK ACCOUNT FOR THE PURCHASE OF LA ND. COPY OF THE BANK ACCOUNT OF THE FATHER SHRI G.P. TRIPATHI IS PL ACED ON RECORD. THE ALLEGED DEAL WAS SUBSEQUENTLY CANCELLED. SUFFIC IENT MATERIAL HAS BEEN PLACED ON RECORD TO PROVE THAT THE ALLEGED INV ESTMENT OF RS.3,00,000/- ONE FROM THE COFFERS OF THE ASSESSEE S FATHER AND THE INVESTMENT WAS NOT MADE BY THE ASSESSEE. IT IS ALS O THE FACT THAT NO CASH WAS DEPOSITED IN THE BANK ACCOUNT OF THE FATHE R BEFORE THE ISSUE OF CHEQUE. IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE IT IS PROVED BEYOND DOUBT THAT THE ALLEGED AMOUNT OF RS.3 ,00,000/- WAS PAID BY SHRI G.P. TRIPATHI AND NOT BY THE ASSESSEE. WE FIND NO JUSTIFICATION IN THE ADDITION MADE AT RS.3,00,000/- . WE ACCORDINGLY DELETE THE ADDITION OF RS.3,00,000/- FOR UNEXPLAINE D INVESTMENT AND ALLOW GROUND NO.2 RAISED IN THE ASSESSEES APPEAL F OR ASSESSMENT YEAR 2009-10. 42. NOW WE MOVE TO THE GROUNDS RELATING TO THE ADDITIO N FOR UNEXPLAINED INVESTMENT U/S 69B OF THE ACT AT RS.4,0 9,266/- AND SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 37 RS.22,33,100/- MADE BY THE LD. A.O FOR ASSESSMENT Y EAR 2009-10 AND ASSESSMENT YEAR 2011-12 WHICH HAVE BEEN CONFIRM ED BY LD. CIT(A). 43. BRIEF FACTS RELATING TO THIS ISSUE ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS LD. A.O NOTICED THAT THE ASS ESSEE HAD MADE INVESTMENT IN PROPERTIES. ONE PLOT AT JYOTI NAGAR, BABRIYA KALA, BHOPAL WAS REGISTERED ON 23.9.2009 FOR PURCHASE CON SIDERATION OF RS. 1,30,734/- AND ANOTHER PROPERTY I.E. AGRICULTUR E LAND AT KOLAR ROAD, BHOPAL WAS REGISTERED ON 30.10.2010 FOR PURCH ASE CONSIDERATION OF RS.7,00,000/-. FAIR MARKET VALUE FOR BOTH THE PROPERTIES WERE ADOPTED BY LD. A.O AT RS.5,40,000/- AND RS.29,33,100/- ON THE BASIS OF STAMP VALUATION AUT HORITY. THOUGH THE ASSESSEE CONTENDED THAT HE HAS NOT PAID ANY O N MONEY BUT LD. A.O WENT AHEAD TO MAKE THE ADDITION FOR DIFFERE NCE BETWEEN THE FAIR MARKET VALUE AND PURCHASE CONSIDERATION PAID B Y THE ASSESSSEE THEREBY MAKING THE ADDITION OF RS.4,09,266/- AND RS .22,33,100/- FOR ASSESSMENT YEAR 2009-10 AND ASSESSMENT YEAR 2011-1 2 RESPECTIVELY. THE APPEAL BEFORE LD. CIT9A) DID NOT BRING ANY RELIEF AS LD. CIT(A) CONFIRMED THE VIEW TAKEN BY LD. A.O. 44. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 38 45. LD. COUNSEL FOR THE ASSESSEE MADE WRITTEN SUBMISSI ON IN SUPPORT OF HIS CONTENTION THAT THE IMPUGNED ADDITIO N MAY BE DELETED. FACTS 1. DURING THE COURSE OF POST SEARCH ASSESSMENT PROCEE DINGS, THE LD AO NOTICED THAT ASSESSEE HAS INVESTED IN FOLLOWING PRO PERTIES. HE ADDED THE DIFFERENCE BETWEEN THE PURCHASE VALUE AND STAMP VAL UE AS UNACCOUNTED INVESTMENT U/S. 69B. SR. NO ADDRESS SELLER DATE OF REGISTRY PURCHASE VALUE FAIR MARKET VALUE 1. PLOT NO. 140, JYOTI NAGAR, BABRIYA KALA, BHOPAL DEEPAK GRIH NIRMAN SAHKARI MARYADIT 23.03.09 (AY 2009- 10) 1,30,734 5,40,000 2. AGICULTURAL LAND AT VILLAGE BAIRAGARH CHICHLI, PATWARI HALKA 3829, KOLAR ROAD, BHOPAL RASHEEDA IQBAL 30.10.10 (AY 2011- 12) 7,00,000 29,33,100 TOTAL 8,30,734 34,73,100 2. ON ENQUIRY IT WAS SUBMITTED BY ASSESSEE THAT:- A. THERE WAS NO EVIDENCE TO PROVE ANY ON MONEY PAID BY ASSESSEE. B. IN RESPECT OF 1 ST PROPERTY THE COST WAS PAID AT THE TIME OF PURCHASE IN 2006 AND REGISTERED DEED WAS ENTERED IN 2009. IN THE LAPSE OF 3 YRS THE STAMP AUTHORITY HAVE REVISED THE GUIDELINE RATES. THUS, IT IS INCORRECT TO COMPARE THE FAIR MARKET VALUE OF 2009 WITH COST OF PURCHASE IN 2006. THE SOURCE OF PURCHASE IS OUT OF CASH BALANCE OUT OF EXPLAINED SOURCE. C. THE SOURCE OF PAYMENT FOR PURCHASE OF AGRICULTURAL LAND AT RS. 7,00,000/- IS RS. 6,00,000/- THROUGH CHEQUE NO 883 DATED 31.10.10 FROM SBI ACCOUNT AND THE REGISTRY EXPENSES OF RS. 1,00,000/- WAS MET OUT OF CASH WITHDRAWAL OF RS. 3, 50,000/- MADE FROM SBI ON 11.11.10. WHAT AO DID? - NO PRUDENT PERSON WILL SELL THE LAND BELOW MARKET P RICE. - CLAIM FOR PURCHASE OUT OF BLOCK PERIOD IS NOT CORRE CT AS THE REGISTRY WAS DONE IN 2009. SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 39 - SUMMONS U/S. 131 WERE ISSUED, BUT THE SELLERS DID N OT APPEAR. ASSESSEE COULD NOT PRODUCE THE SELLERS. - THUS, THE DIFFERENCE IN FAIR MARKET VALUE AND THE R EGISTRY VALUE IS ADDED AS UNDISCLOSED INVESTMENT IN HANDS OF ASSESSEE. RS. 26 ,42,366/- (RS. 34,73,100 LESS 8,30,734/-) UNEXPLAINED INVESTMENT A.Y 4,09,2,66/ - 2009 - 10 22,33,100/ - 2011 - 12 WHAT LD. CIT(A) DID? - THE ADDITION IS MADE ON ACCOUNT OF DIFFERENCE IN TH E PURCHASE PRICE AND THE MARKET VALUE AFTER GIVING AMPLE OPPORTUNITY TO THE ASSESSEE TO PROVE THAT RECEIPT WAS NOT HIS INCOME OR THAT IT IS EXEMP TED FROM TAXATION. - THE ASSESSEE COULD NOT PRODUCE THE SELLERS TO JUSTI FY HIS CLAIM THAT NO OVER AND ABOVE PAYMENT WERE MADE IN PURCHASE OF SAID PRO PERTIES. SUBMISSIONS: NO EVIDENCE OF ON-MONEY: - THE PRE-REQUISITE CONDITIONS FOR MAKING AN ADDITION UNDER SECTION 69B ARE THAT FIRSTLY, THE AS SESSEE SHOULD HAVE MADE INVESTMENT AND THEN THE ASSESSING OFFICER SHOULD FI ND THAT THE AMOUNT ACTUALLY EXPENDED ON MAKING SUCH INVESTMENT IS MORE THAN THE AMOUNT RECORDED IN THE BOOKS OF ACCOUNT. IN OTHER WORDS, T HERE SHOULD BE SOME POSITIVE EVIDENCE WITH THE ASSESSING OFFICER TO FIN D THAT THE ASSESSEE HAD, IN FACT, INVESTED MORE AMOUNT THAN THAT ACTUALLY RECOR DED IN THE BOOKS OF ACCOUNT. SUCH A FINDING BY THE ASSESSING OFFICER CA N BE BASED ON SOME POSITIVE EVIDENCE ABOUT THE MAKING OF MORE INVESTME NT THAN THAT DECLARED IN THE BOOKS OF ACCOUNT. THIS SECTION CANNOT BE TRIGGE RED ON A MERE PRESUMPTION OF THE ASSESSING OFFICER. THE HON'BLE SUPREME COURT IN THE CASE OF K.P. VARGHESE V. ITO [1981] 131 ITR 597/7 TAXMAN 13 HAS HELD THAT THE ONUS OF ESTABLISHING THAT THE CONDITIONS OF TAXABILITY ARE FULFILLED, IS ALWA YS ON THE REVENUE. IT IS FOR THE REVENUE TO SHOW THAT THERE IS AN UNDERSTATEMENT OF THE CONSIDERATION. IT FURTHER LAID DOWN THAT TO THROW THE BURDEN OF SH OWING THAT THERE IS NO UNDERSTATEMENT OF THE CONSIDERATION ON THE ASSESSEE , WOULD BE TO CAST AN ALMOST IMPOSSIBLE BURDEN UPON HIM TO ESTABLISH A NE GATIVE. SIMILAR VIEW HAS BEEN REITERATED IN CIT V. SHIVAKAMI CO. (P.). LTD. [1986] 159 ITR 71/25 TAXMAN 80K (SC). IN THIS CASE, THEIR LORDSHIPS HAVE LAID DOWN THAT NO ADDITION CAN BE MADE UNLESS THERE IS EVIDEN CE THAT MORE CONSIDERATION THAN WHAT WAS STATED IN THE DOCUMENT, WAS RECEIVED. IN THE LIGHT OF THE ABOVE DECISIONS, IT IS MANIFEST THAT N O ADDITION CAN BE MADE SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 40 UNLESS THE REVENUE PROVES UNDERSTATEMENT OF CONSIDE RATION WITH SOME COGENT EVIDENCE. 1. LD AO ISSUED SUMMONS U/S. 131 TO THE PARTIES. THESE SUMMONS WERE NOT RETURNED UNSERVED. IF THE PARTIES DID NOT APPEAR, A SSESSEE CANNOT BE BLAMED FOR IT. 2. THERE IS NO EVIDENCE FOUND DURING SEARCH OR SUBSEQU ENTLY TO SHOW ANY ON- MONEY PAYMENT. 3. AMENDMENT IN SECTION 56(2) TO TAX THE DIFFERENCE IN STAMP VALUE AND CONSIDERATION IN THE HANDS OF BUYER; HAS BEEN BROUG HT W.E.F. 01.04.2014 I.E. FROM A.Y. 2014-15. SAME CANNOT BE APPLIED RETR OSPECTIVELY. 4. THE FINDINGS OF LD CIT(A) IS WRONG IN THE LIGHT OF CIT VS DINESH JAIN (HUF) 352 ITR 629 (DEL.) WHEREIN IT WAS HELD SECTION 69B IN TERMS REQUIRES THAT THE AO HAS TO FIRST FIND THAT THE ASSESSEE HAS E XPENDED AN AMOUNT WHICH HE HAS NOT FULLY RECORDED IN HIS BOOKS OF ACCOUNT. IT IS ONLY THEN THAT THE BURDEN SHIFTS TO THE ASSESSEE TO FURNISH A SATISFAC TORY EXPLANATION. TILL THE INITIAL BURDEN IS DISCHARGED BY THE AO, THIS SECTIO N REMAINS DORMANT. FURTHER, IN CASE OF CIT VS CHANDNI BHUCHAR 323 ITR 510 (P & H) , IT WAS HELD THAT IN ABSENCE OF ANY LEGALLY ACCEPTABLE EVIDENCE, VA LUATION DONE FOR THE PURPOSE OF SECTION 50C WOULD NOT REPRE SENT ACTUAL CONSIDERATION PASSED ON TO SELLER. THUS, IT IS HUMBLY PRAYED THAT THE ADDITION MAY BE DELETED. 46. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE VEHEMEN TLY ARGUED AND SUPPORTING THE ORDERS OF LOWER AUTHORITIES. 47. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RE CORDS PLACED BEFORE US. THROUGH GROUND NO.3 FOR ASSESSMENT YEA R 2009-10 AND GROUND NO.1 FOR ASSESSMENT YEAR 2011-12 ASSESSEE HA S CHALLENGED THE FINDING OF LD. CIT(A) CONFIRMING THE ADDITION O FRS.4,09,266/- AND RS.22,33,100/- RESPECTIVELY MADE U/S 69B OF THE ACT . SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 41 48. THE ADDITION OF RS.4,09,266/- IS THE DIFFERENCE BE TWEEN THE FAIR MARKET VALUE AND PURCHASE PRICE PAID FOR PLOT NO.14 0, JYOTI NAGAR, BABRIYA KALA, BHOPAL. THE REGISTRY OF THE PLOT TOOK PLACE ON 23.03.2009. RECORDS SHOWS THAT THIS PROPERTY WAS PU RCHASED IN THE YEAR 2006 AND TOTAL PURCHASE CONSIDERATION WAS PAID AND POSSESSION TAKEN. ONLY THE REGISTRY WAS DONE ON 23.3.2009 AND THEREFORE THE MARKET VALUE ADOPTED BY THE LD. A.O IS NOT CORRECT. NO EVIDENCE PLACED ON RECORD TO PROVE THAT ANY ON MONEY WAS P AID. 49. AS REGARDS AGRICULTURE LAND AT VILLAGE BAIRAGARH C HICHLI, PATWARI HALKA 3829, KOLAR ROAD, BHOPAL PURCHASED DURING THE ASSESSMENT YEAR 2011-12 THE CONSIDERATION HAS BEEN PAID THROUG H CHEQUES OF RS.6,00,000/- AND REGISTRY EXPENSES HAS BEEN INCURR ED IN CASH AT RS.1,00,000/-. BOTH THE LOWER AUTHORITIES HAVE CONF IRMED THE ADDITION ON THE ASSUMPTION THAT THE ASSESSEE HAS PA ID ON MONEY FOR THE PURCHASE OF THESE TWO PROPERTIES. HOWEVER BOTH THE LOWER AUTHORITIES AS WELL AS LD. DEPARTMENTAL REPRESENTAT IVE HAVE NOT PLACED ON ANY DOCUMENTARY EVIDENCE TO PROVE THAT AN Y ON MONEY HAS BEEN PAID BY THE ASSESSEE TO THE SELLERS. NO I NVESTIGATION WAS CARRIED OUT BY THE LD. A.O EVEN THOUGH ALL THE NECE SSARY DETAILS I.E. NAME AND ADDRESS OF THE SELLERS WERE AVAILABLE WITH HIM. LD. A.O SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 42 HAS ALSO NO GIVEN DUE WEIGHTAGE TO BRING ON THE REC ORD THE BASIS OF TAKING FAIR MARKET VALUE. FOR MAKING ADDITION U/S 69B OF THE ACT PREREQUISITE CONDITION IS THAT THE LD. A.O SHOULD F IRST FIND THAT THE AMOUNT ACTUALLY INVESTED IS MUCH MORE THAN THE AMOU NT RECORDED IN THE BOOKS OF ACCOUNTS. THERE IS NO POSITIVE EVIDEN CE PLACED BEFORE US TO SHOW THAT ANY SUCH EXCESS AMOUNT I.E. ON MONEY WAS PAID BY THE ASSESSEE TO THE SELLERS. 50. HON'BLE APEX COURT IN THE CASE OF K.P. VERGHESE V ITO (1981) 131 ITR 597/7 TAXMAN 13(SUPRA) HAS HELD THAT THE ONUS OF ESTABLISHING THAT THE CONDITIONS OF TAXABILITY ARE FULFILLED, IS ALWAYS ON THE REVENUE. IT IS FOR THE REVENUE TO SHOW THAT THERE IS AN UNDERSTATEMENT OF THE CONSIDERATION. HON'BLE APEX COURT FURTHER LAID DOWN THAT TO THROW THE BURDEN OF SHOWING THAT THERE IS NO UNDERSTATEMENT OF THE CONSIDERATION ON THE ASSESSEE , WOULD BE TO CAST AN ALMOST IMPOSSIBLE BURDEN UPON HIM TO ESTABLISH A NEGATIVE. 51. HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT V/S CHANDNI BHUCHAR 323 ITR 510 (P&H)HELD THAT IN ABSE NCE OF ANY LEGALLY ACCEPTABLE EVIDENCE, VALUATION DONE FOR THE PURPOSE OF SECTION 50C WOULD NOT REPRESENT ACTUAL CONSIDERATION PASSED ON TO SELLER. SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 43 52. FURTHER THE PROVISIONS OF SECTION 50C OF THE ACT W HICH EMPOWERS THE LD. A.O TO ADOPT THE CONSIDERATION REC EIVED OR ACCRUING AS A RESULT OF THE TRANSFER BY AN ASSESSEE ON THE BASIS OF VALUATION ADOPTED BY THE STAMP VALUATION AUTHORITY IS APPLICABLE ON THE SELLER. IN THE INSTANT CASE LD. A.O HAS NOT CO NDUCTED ANY ENQUIRY THROUGH THE JURISDICTIONAL A.O OF THE ALLEG ED SELLERS IN ORDER TO INVOKE PROVISIONS OF SECTION 50C OF THE ACT IN T HE RESPECTIVE HANDS. IN THIS GIVEN FACTS AND CIRCUMSTANCES OF TH E CASE AND CONSIDERING THE RATIO LAID DOWN BY HON'BLE APEX COU RT, WE ARE OF THE CONSIDERED VIEW THAT THERE IS NO MATERIAL EVIDENCE AGAINST THE ASSESSEE WHICH COULD PROVE THAT AN UNEXPLAINED INVE STMENT IN THE SHAPE OF ON MONEY WAS EVER PAID BY THE ASSESSEE F OR THE PURCHASE OF ALLEGED PROPERTIES. IN OUR VIEW THE ADDITION MADE BY THE LD. A.O U/S 69B OF THE ACT ARE MERELY BASED ON SURMISES AND ASS UMPTIONS AND FAIL TO STAND. WE ACCORDINGLY SET ASIDE THE FINDIN G OF LD. CIT(A) AND DELETE THE ADDITION FOR UNEXPLAINED INVESTMENT U/S 69B OF THE ACT AT RS.4,09,266/-AND RS.22,33,100/-FOR ASSESSMENT YEAR 2009-10 AND ASSESSMENT YEAR 2011-12 RESPECTIVELY. ACCORDINGLY GROUND NO.3 FOR ASSESSMENT YEAR 2009-10AND GROUND NO.1 FOR ASSESSME NT YEAR 2011-12 ARE ALLOWED. SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 44 53. NOW WE TAKE GROUND NO.2 FOR ASSESSMENT YEAR 2010-1 1 RELATING TO ADDITION FOR UNDISCLOSED INVESTMENT AT RS.24,75, 000/- MADE BY THE LD. A.O ON THE BASIS OF SEIZED DOCUMENT NO.LPS- 3 PAGE 42-64. 54. BRIEF FACTS OF THE CASE RELATING TO THE ISSUE ARE THAT DURING THE COURSE OF SEARCH VARIOUS DOCUMENTS PAGE 42TO 64 OF LPS-3 WERE FOUND AND SEIZED. THESE CONTAINS SALE AGREEMENT OF LAND DATED 22.4.2007 BETWEEN ROOP SINGH AND NARENDRA HEMNANI. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE FAILE D TO CONVINCE THE LD. A.O THAT THE ASSESSEE IS UNRELATED TO THESE DOC UMENTS AND SHRI NARENDRA HEMNANI LEFT THESE DOCUMENT AT THE ASSESSE ES RESIDENTIAL PREMISES. LD. A.O MADE THE ADDITION FOR UNDISCLOSED INVESTMENT OF RS.24,75,000/- ALLEGED TO HAVE BEEN MADE BY THE ASS ESSEE IN THE NAME OF SHRI NAND KISHORE YADAV AND SHRI NARENDRA H EMNANI AS BENAMI INVESTMENT. WHEN THE MATTER CAME UP BEFORE LD. CIT(A) HE CONSIDERING THE HUGE CASH AMOUNT FOUND AND LOOSE PA PER SEIZED CONFIRMED THE ADDITION OF RS.24,75,000/- AS BENAMI INVESTMENT. LD. CIT(A)HOWEVER FAILED TO GIVE HIS FINDING OF FACT AB OUT THE ALLEGED CONNECTION BETWEEN THE ASSESSEE AND THE PURCHASER O F THE PROPERTIES NAMELY SHRI NAND KISHORE YADAV AND SHRI NARENDRA HE MNANI. 55. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL . SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 45 56. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AS SESSEE HAS NOTHING TO DO WITH THE DOCUMENTS SEIZED AND NAMED A S LPS-3 PAGE 42-64. THESE PAPERS WERE LEFT BY SHRI NARENDRA HEM NANI AT THE ASSESSEES RESIDENCE WHEN HE CAME FOR SOME PERSONAL WORK. THE SEIZED DOCUMENTS ARE LEGAL DOCUMENTS WHICH DO NOT H AVE ANY MENTION OF THE ASSESSEES NAME. HE ALSO CONTENDED THAT THE PRESUMPTION U/S 132(4A)/292C OF THE ACT ARE IN FAVO UR OF THE ASSESSEE AS THE CONTENTS OF THE DOCUMENTS WOULD BE TAKEN AS CORRECT UNLESS REBUTTED BY THE LD. A.O BY BRINGING ANY EVIDENCE ON RECORD. SUMMONS ISSUED BY THE LD. A.O RETURNED UN SERVED BUT FOR THIS ACTION OF THE NONE APPEARANCE OF THE PARTIES, ASSESSEE SHOULD NOT BE HELD LIABLE AND THEREFORE PRAYED FOR DELETIO N OF ADDITION. 57. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE VEHEMEN TLY ARGUED AND SUPPORTING THE ORDERS OF LOWER AUTHORITIES. 58. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RE CORDS PLACED BEFORE US. THE ISSUE RAISED IN GROUND NO.2 FOR ASS ESSMENT YEAR 2010-11 RELATES TO THE ADDITION FOR UNDISCLOSED IN VESTMENT. FROM PERUSAL OF THE SEIZED RECORDS WE FIND THAT FOLLOWIN G DOCUMENTS WERE FOUND DURING THE COURSE OF SEARCH OF THE ASSESSEES PREMISES. SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 46 PAGE NO. (LPS -3) DATE PARTICULARS SELLER PURCHASER REMARKS 42 - 45 (PB172- 174) 22.04.07 SALE AGREEMENT OF LAND OF 1.10 ACRE RS. 24.75 LAKH IN WHICH ADVANCE OF RS. 15.75 LAKH GIVEN. ROOP SINGH NAND KISHORE YADAV ADVANCE GIVEN PERTAINS TO A.Y. 08-09 46 - 49 (PB175- 178) 22.04.09 COPY OF WILL OF 1.10 ACRE ROOP SINGH EXECUTOR NARENDRA HEMNANI EXECUTEE WILL OF SAME LAND OF WHICH SALE AGREEMENT MADE ON 22.04.07 50 - 54 (PB179- 183) 22.04.09 COPY OF POWER OF ATTORNEY OF 1.10 ACRES ROOP SINGH EXECUTOR NARENDRA HEMNANI EXECUTEE POA OF SAME LAND OF WHICH SALE AGREEMENT MADE ON 22.04.07 55 - 59 (PB184- 186) 20.04.11 COPY OF POWER OF ATTORNEY OF 1.10 ACRES ROOP SINGH EXECUTOR NARENDRA HEMNANI EXECUTEE POA OF SAME LAND OF WHICH SALE EXECUTED ON 22.04.07 AND RENEWED ON 20.04.11 60 - 64 (PB189- 193) 11.05.09 SALE AGREEMENT ROOP SINGH NARENDRA HEMNANI SALE AGREEMENT MADE ON 22.04.07 AND RENEWED ON 11.05.09. 59. IN THE ABOVE STATED TABULAR CHART UNDER THE HEAD P ARTICULARS THE DETAILS OF THE SEIZED DOCUMENTS IS MENTIONED. SOME ARE SALE SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 47 AGREEMENTS DATED 22.4.2007 BETWEEN SHRI ROOP SINGH AND NAND KISHORE YADAV AND COPY OF WILL OF POWER OF ATTORNE Y DATED 22.4.2009 AND 20.4.2011 EXECUTED BY SHRI ROOP SINGH IN FAVOUR OF NARENDRA HEMNANI AND SALE AGREEMENT DATED 11.5.2009 IN BETWE EN SHRI ROOP SINGH AND SHRI NARENDRA HEMNANI. ALL THE DOCUMENTS ARE DULY REGISTERED BEFORE THE COMPETENT AUTHORITY AND NECES SARY DETAILS OF THE PERIOD MENTIONED THEREIN IS MENTIONED. AN AFFI DAVIT HAS BEEN MADE BY SHRI NARENDRA HEMNANI DATED 16.3.2015 DECLA RING THAT THE ALLEGED DOCUMENTS PERTAINS TO HIM AND DO NOT HAVE A NY CONNECTION DIRECTLY OR INDIRECTLY WITH THE ASSESSEE. HE ALSO DECLARED THAT THESE DOCUMENTS WERE LEFT BY MISTAKE AT THE ASSESSEES PR EMISES WHEN HE CAME FOR A PERSONAL VISIT. MR. NARENDRA HEMNANI HA S ALSO OWNED THE TRANSACTIONS MENTIONED IN THE SEIZED DOCUMENTS. IN THESE GIVEN FACTS THE LD. A.O WAS DUTY BOUND TO CARRY OUT INVES TIGATION AGAINST SHRI NARENDRA HEMNANI. HOWEVER MAKING THE ADDITION IN THE HANDS OF THE ASSESSEE AS UNDISCLOSED INVESTMENT/ BENAMI I NVESTMENT SEEMS TO BE HOLLOW BECAUSE THERE IS NO CONNECTION D IRECTLY OR INDIRECTLY ESTABLISHED BY THE REVENUE AUTHORITIES W ITH THE SEIZED DOCUMENTS PERTAINING TO PURCHASE OF PROPERTIES. SUC H ADDITION CANNOT STAND MERELY FOR THE REASON THAT THESE DOCUM ENTS WERE FOUND SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 48 AT THE ASSESSEES RESIDENTIAL PREMISES LOOKING TO T HE FACT THAT THE ASSESSEE HAS DULY EXPLAINED THE ALLEGED DOCUMENTS A ND THE SAME HAVE BEEN OWNED BY SHRI NARENDRA HEMNANI THROUGH AN AFFIDAVIT. ACTION IF ANY TO HAVE BEEN CALLED FOR BY THE LD.A.O WAS AGAINST SHRI NARENDRA HEMNANI BUT BY NO STRETCH THE ADDITION COU LD HAVE BEEN MADE IN THE HANDS OF THE ASSESSEE. WE ACCORDINGLY DELETE THE ADDITION OF RS.24,75,000/- MADE BY LD. A.O TOWARDS UNDISCLOSED INVESTMENT AND ALLOW GROUND NO.2 RAISED BY THE ASSE SSEE. 60. NOW WE TAKE GROUND NO.1 FOR ASSESSMENT YEAR 2013-1 4 RELATING TO ADDITION FOR UNEXPLAINED CASH OF RS.23,11,760/- FOUND AT THE RESIDENTIAL PREMISES. 61. BRIEF FACTS RELATING TO THIS GROUND ARE THAT DURIN G THE COURSE OF SEARCH CASH OF RS.23,11,760/- WAS FOUND AT THE RESI DENTIAL PREMISES. CASH OF RS.22,00,000/- WAS SEIZED BY THE REVENUE AU THORITIES. DURING THE COURSE OF SEARCH ITSELF IT WAS STATED BY THE AS SESSEE THAT SOME PART OF CASH WAS RECEIVED FROM VARIOUS PERSONS FOR THEIR EDUCATIONAL WORKS. HE ALSO STATED THAT SOME OF CASH BELONGS TO HIS BROTHER AND FATHER. HOWEVER FOR WANT OF SUFFICIENT DETAILS LD. A.O MADE THE ADDITION FOR UNEXPLAINED CASH OF RS.23,11,760/-. WH EN THE MATTER CAME UP BEFORE LD. CIT(A) ASSESSEE COULD NOT GET AN Y RELIEF AS LD. SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 49 CIT(A) MERELY OBSERVED THAT NO EVIDENCE HAS BEEN FI LED BY MR. FARHAT REGARDING COLLECTION OF CASH FROM THE STUDENTS AND INSTITUTIONS. IN SUPPORT OF THIS STATEMENT, BANK ACCOUNT AND PAN OF MR. FARHAT WAS FILED. NO DETAILS OF THE STUDENTS AND INSTITUTIONS WERE PROVIDED. LD. CIT(A) ALSO DID NOT CONSIDER THE SUBMISSION THAT RS .55,000/- BELONGS TO THE ASSESSEES FATHER AND SIMILARLY CLAIM OF THE ASSESSEE THAT RS.6,00,000/- BELONGS TO HIS BROTHER SHRI AJAY TRIP ATHI WERE ALSO NOT ACCEPTED AS NO CONFIRMATION AND DETAILED BANK ACCOU NT WERE FILED. 62. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 63. LD. COUNSEL FOR THE ASSESSEE MADE FOLLOWING WRITTE N SUBMISSIONS. 1. THE CASH WAS FOUND FROM TWO PLACES ONE FROM THE GR OUND FLOOR FROM THE BED ROOM OF ASSESSEE RS. 13,11,760/- AND SECOND IN THE COMMON ROOM RS. 10,00,000/- WHICH IS USED BY ALL THE FAMILY MEM BERS. 2. THE CASH FOUND DO NOT BELONG TO THE ASSESSEE BUT TO VARIOUS PERSONS WHO HAVE KEPT AS A SECURITY, THE SAME WAS CONFIRMED IN THE STATEMENT RECORDED DURING SEARCH U/S 132. 3. THE SOURCE WAS EXPLAINED BY ASSESSEE AS: AMOUNT PURPOSE REMARK 17,35,000 ADMISSION FEES AT THE TIME OF SEARCH MOBILE N O AND NAME WERE PROVIDED. 6,00,000 BROTHER AJAY TRIPATHI BROTHER IS INTO CONTRACT BUSINESS AND CASH WAS ACCUMULATED BY HIM. 55,000 FATHER G.P TRIPATHI CASH WAS KEPT IN SEPARATE BAG, OWNED BY FATHER WHO IS RETURED GOVT EMPLOYEE AND STILL EARNED PENSION INCOME. SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 50 64. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE VEHEMEN TLY ARGUED AND SUPPORTING THE ORDERS OF LOWER AUTHORITIES. 65. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RE CORDS PLACED BEFORE US. THE ISSUE RELATES TO THE ADDITION OF UN EXPLAINED CASH OF RS.23,11,760/-. THE ASSESSEE HAS CONTENDED THAT TH E SOURCE OF ALLEGED CASH OF RS.17,35,000/- RECEIVED AS ADMISSIO N FEE FOR WHICH DETAILS OF MOBILE NUMBER, NAME OF PERSONS WERE PROV IDED. DURING THE COURSE OF SEARCH ITSELF IT WAS STATED THAT RS.6,00, 000/- BELONGS TO THE BROTHER SHRI AJAY TRIPATHI WHO IS INTO THE CONTRACT BUSINESS AND RS.55,000/- IS OWNED BY HIS FATHER WHO KEPT IT FOR HIMSELF. 66. AS REGARDS THE CASH OF RS.55,000/- ALLEGED TO BE O WNED BY THE ASSESSEES FATHER SHRI G.P. TRIPATHI WE FIND THAT T HE CONFIRMATION LETTER HAS BEEN FILED AND PLACED AT PAGE 330 OF THE PAPER BOOK WHEREIN IT WAS STATED THAT SHRI G.P. TRIPATHI IS A RETIRED GOVERNMENT SERVANT AND RECEIVES PENSION. RS.55,000/- WAS OWNE D BY HIM WHICH WAS KEPT IN A SEPARATE BAG AND SOURCE OF IT WAS CUM ULATIVE SAVINGS AND CASH WITHDRAWAL FROM BANK. WE ARE SATISFIED WI TH THE CONFIRMATION FILED BY THE ASSESSEES FATHER AND ARE OF THE VIEW THAT SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 51 THE SOURCES OF RS.55,000/- IS DULY EXPLAINED AND TH US ADDITION FOR THE SAME SHOULD BE DELETED. 67. AS REGARDS THE SOURCES OF CASH FOUND AT RS.17,35, 000/- ALLEGED TO HAVE BEEN RECEIVED FROM VARIOUS PERSONS THE DETA ILS OF WHICH ARE MENTIONED BELOW; S.NO. PARTICULARS AMOUNT 1 RECEIVED BY MR. FARHAT ON BEHALF OF STUDENTS FEES RS. 3,10,000/ - 2 NATIONAL P. G. COLLEGE S TUDENTS FEE RS.1,75,000/ - 3 VARSHMAN COLLEGE, ITARSI S TUDENTS FEE RS.4,00,000/ - 4 RAJIV GANDHI COLLEGE - FEES RS.1,20,000/ - 5 Y.P. SINGH, PRINCIPAL J&C RS.85,000/ - 6 RADHY SHYAM YADAV RS.2,00,000/ - 7 CHANAKYA COLLEGE STUDENTS FEES RS.4 ,45,000/ - TOTAL RS.17,35,000/ - 68. FROM THE PERUSAL OF RECORDS WE FIND THAT THE ASSES SEE BIFURCATED ALL THE AMOUNT RECEIVED FROM VARIOUS PERSONS AND GI VEN IT TO THE SEARCH TEAM. COMPLETE DETAILS WITH CONFIRMATION OF AMOUNTS ARE PLACED IN THE PAPER BOOK FROM PAGE 202 TO 299. AT THE TIME OF SEARCH ITSELF THE ASSESSEE STATED THAT THE SUM OF RS.11,35 ,000/- DOES NOT BELONGS TO HIM BUT TO VARIOUS PERSONS ENUMERATED AB OVE IN SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 52 CONNECTION TO HIS LIAISON WORK IN THE FIELD OF EDUC ATION. WE FIND THAT BOTH THE LOWER AUTHORITIES HAVE NOT EXAMINED THE DE TAILS PROPERLY. IN OUR CONSIDERED VIEW WHEN DURING THE COURSE OF SEARC H IN THE STATEMENT MADE AND SUBSEQUENTLY CORROBORATIVE EVIDE NCE HAVE BEEN FILED BY THE ASSESSEE, THEN THE REVENUE AUTHORITIES SHOULD HAVE CARRIED OUT PROPER INVESTIGATION BEFORE REJECTING T HE CONTENTION OF THE ASSESSEE. IN OUR CONSIDERED VIEW THE FACTUAL EXAMI NATION OF THE ASSESSEES CONTENTION SUPPORTED BY DOCUMENTARY EVID ENCE RELATING TO ALLEGED SOURCE OF CASH OF RS.17,35,000/- NEEDS TO B E SET ASIDE TO THE FILE OF LD. A.O FOR FRESH EXAMINATION AFTER PROVIDI NG PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 69. NOW OUT OF THE TOTAL ADDITION FOR UNEXPLAINED CASH OF RS.23,11,760/- WE HAVE ALREADY DELETED THE ADDITION OF RS.55,000/- AND HAVE SET ASIDE THE DELETION OF CASH RECEIVED FR OM VARIOUS PARTIES AT RS.17,35,000/- FOR AFRESH EXAMINATION BY THE LD. A.O AND FOR REMAINING AMOUNT OF RS.5,21,760/- IN THE SUBMISSION S FILED BEFORE THE LOWER AUTHORITIES SUM OF RS.6,00,000/- HAS BEEN MENTIONED WHICH PERTAINS TO THE CASH WITHDRAWN FROM BANK BY T HE ASSESSEES BROTHER. SO FOR TECHNICAL PURPOSES THE REMAINING A MOUNT IS IN CHALLENGE AT RS.5,21,760/-. AS REGARDS THE CLAIM O F THE ASSESSEE THAT SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 53 OUT OF TOTAL CASH FOUND WITH HIM AT RS.23,11,760/-, SUM OF RS.6,00,000/- BELONGS TO BROTHER SHRI AJAY TRIPATHI , IT WAS SUBMITTED THAT MR. AJAY TRIPATHI HAD WITHDRAWN THE AMOUNT FROM STATE BANK OF INDIA ACCOUNT. COPY OF BANK STATEMEN T HAS ALSO BEEN PLACED BEFORE THE LOWER AUTHORITIES. SINCE THE ASSE SSEE HAS GIVEN SAME SUBMISSION DURING SEARCH AND BEFORE THE LOWER AUTHORITIES AND ALSO SINCE THE ISSUE OF EXAMINATION OF UNEXPLAINED CASH OF RS.17,35,000/- HAS ALREADY BEEN SET ASIDE FOR AFRES H EXAMINATION BY THE LD. A.O, WE ARE OF THE CONSIDERED VIEW THAT THI S ISSUE OF GENUINENESS OF THE SOURCE OF CASH OF RS.6,00,000/- CLAIMED BY THE ASSESSEE TO HAVE BEEN WITHDRAWN FROM THE BANK ACCOU NT IN THE NAME OF HIS BROTHER SHRI AJAY TRIPATHI ALSO NEEDS TO BE SET ASIDE TO THE FILE OF LD. A.O IN ORDER TO CARRY OUT NECESSARY VERIFICA TION. WE DIRECT THE ASSESSEE TO PLACE THE SBI BANK STATEMENT OF SHRI AJ AY TRIPATHI BEFORE THE ASSESSING OFFICER IN ORDER TO EXPLAIN THE WITHD RAWAL OF CASH OF RS.6,00,000/-. 70. ACCORDINGLY OUT OF THE TOTAL ADDITION OF RS.23,11, 760/-, WE DELETE THE ADDITION OF RS.55,000/-FOR CASH OWNED BY THE ASSESSEES FATHER SHRI G.P. TRIPATHI AND FOR THE REMAINING AMO UNT OF RS.17,35,000/- AND RS.5,21,760/-, WE SET ASIDE THE ISSUE TO THE FILE SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 54 OF LD. A.O FOR FRESH EXAMINATION AS PER THE TERMS I NDICATED ABOVE. ACCORDINGLY GROUND NO.1 FOR ASSESSMENT YEAR 2013-14 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 71. APROPOS TO GROUND NO.3 FOR UNEXPLAINED JEWELLERY O F RS.1,30,000/-, BRIEF FACTS OF THE CASE ARE THAT DUR ING THE COURSE OF SEARCH ONE INVOICE DATED 4.5.2012 ISSUED BY TANISHQ MADE IN FAVOUR OF SHRI NARENDRA TRIPATHI FOR PURCHASE OF JEWELLERY AT RS.1,30,000/- WAS FOUND. ADDITION FOR THE SAME WAS MADE BY LD. A .O WHICH WAS SUBSEQUENTLY CONFIRMED BY LD. CIT(A). 72. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 73. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AS SESSEE IS SHOWING SUFFICIENT INCOME CONSISTENTLY FOR PAST MAN Y YEARS AND SUFFICIENT WITHDRAWAL FOR THE ALLEGED PURCHASE OF J EWELLERY. 74. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE VEHEMEN TLY ARGUED AND SUPPORTING THE ORDERS OF LOWER AUTHORITIES. 75. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RE CORDS PLACED BEFORE US. THE ASSESSEE IS AGGRIEVED WITH THE ADDI TION CONFIRMED BY LD. CIT(A) AT RS.1,30,000/-. WE FIND THAT THE ASSE SSEE APART FROM SALARY INCOME ALSO SHOWS VOCATIONAL INCOME FOR ASSE SSMENT YEAR 2011-12 AND 2012-13. INCOME OF RS.4,52,890/- HAS B EEN OFFERED FOR SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 55 TAXATION AND FOR ASSESSMENT YEAR 2013-14 INCOME SHO WN IS RS.8,06,690/-. IN THE GIVEN FACTS, WE FIND THAT TH E ASSESSEE IS HAVING SUFFICIENT INCOME TO COVER UP THE PURCHASE OF JEWEL LERY OF RS.1,30,000/-. WE FIND NO JUSTIFICATION IN THE FIN DING OF LOWER AUTHORITIES CONFIRMING THE ADDITION OF RS.1,30,000/ -. WE DIRECT THE LD.A.O TO DELETE THIS ADDITION OF RS.1,30,000/-. A CCORDINGLY GROUND NO.3 OF ASSESSEES APPEAL FOR ASSESSMENT YEAR 2013- 14 IS ALLOWED. 76. APROPOS GROUND NO.4 FOR THE UNDISCLOSED RECEIPT OF RS.1,95,000/- MADE BY LD. A.O AND CONFIRMED BY LD. CIT(A), BRIEF FACTS OF THE CASE ARE THAT DURING THE COURSE OF SEA RCH LOOSE PAPER LPS-4 PAGE-59 WAS FOUND AND SEIZED. THESE PAPERS S HOWS THAT RS.1,95,000/- HAS BEEN RECEIVED FROM MR. FARHAT. T HE ASSESSEE FAILED TO EXPLAIN THE ENTRY IN THIS DOCUMENT AND ME RELY CONTENDED THAT IT IS A DUMB DOCUMENT NOT SIGNED BY ANY ONE. WHEN THE MATTER CAME UP BEFORE LD. CIT(A) THE ADDITION WAS CONFIRME D. 77. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 78. LD. COUNSEL FOR THE ASSESSEE STATED THAT THE ALLEG ED PAPER IS NOT IN THE HANDWRITING OF THE ASSESSEE AND IS NOT KNOWN ABOUT THE DOCUMENT. FURTHER NO CORROBORATIVE EVIDENCE IS FOU ND BY THE SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 56 REVENUE AUTHORITIES TO PROVE THAT THE DOCUMENT BELO NGS TO THE ASSESSEE. 79. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE VEHEMEN TLY ARGUED AND SUPPORTING THE ORDERS OF LOWER AUTHORITIES. 80. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RE CORDS PLACED BEFORE US. THE ISSUE RAISED IN THIS GROUND NO.4 TO WARDS UNDISCLOSED RECEIPT OF RS.1,95,000/-. FROM THE PERUSAL OF THE S EIZED PAPER PLACED AT PAGE 348 OF THE PAPER BOOK, WE FIND THAT CASH DE NOMINATION ARE MENTIONED WHEREIN 3 NOTES OF RS.1000/-, 330 NOTES O F RS.500/-, AND 270 OF RS.100/- WHICH ARE MENTIONED WHICH MAKES A T OTAL OF RS.1,95,000/- AND BELOW THIS PAGE NAME/SIGN IS APPE ARING OF MR. FERHAT. THE ASSESSEES CONTENTION THAT THE ALLEGED DOCUMENT IS NOT RELATED TO HIM IS DEVOID OF ANY MERIT BECAUSE MR. F ERHAT IS A PERSONS WHOSE NAME WAS MENTIONED BY THE ASSESSEE WITH REGAR D TO THE SOURCE OF CASH FOUND AT THE ASSESSEES PREMISES OF RS.17,35,000/-. ASSESSEE FAILED TO FILE THE CONFIRMATION FROM MR. F ERHAT. HOWEVER WITH REGARD TO RS.1,95,000/-WHICH IS APPEARING IN T HE SEIZED DOCUMENT AT LPS-4 PAGE-459 DETAILS OF CASH AND NAME OF MR. FERHAT IS APPEARING. IN THESE GIVEN FACTS AND CIRCUMSTANC ES SINCE WHILE ADJUDICATING GROUND NO.1 FOR ASSESSMENT YEAR 2013-1 4 WE HAVE SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 57 DIRECTED THE LD. A.O TO EXAMINE THE CLAIM OF THE AS SESSEE OF RECEIVING CASH FROM VARIOUS PERSONS FOR EDUCATIONAL WORK INCL UDING THE AMOUNT RECEIVED FROM MR. FARHAT ON BEHALF OF THE ST UDENT FEES, WE ARE INCLINED TO SET ASIDE THE ISSUE FOR VERIFICATIO N OF THE ALLEGED UNEXPLAINED RECEIPT OF RS.1,95,000/- TO THE FILE OF THE LD. A.O TO MAKE NECESSARY VERIFICATION FROM MR. FARHAT WHO NEE DS TO EXPLAIN THE ALLEGED SEIZED DOCUMENT. IN CASE HE DENIES TO HAVE ANY RELATION WITH THE SEIZED DOCUMENT THEN LD. A.O MAY CONFIRM THE ADDITION OF RS.1,95,000/- IN THE HANDS OF THE ASSESSEE. ACCORD INGLY GROUND NO.4 FOR ASSESSMENT YEAR 2013-14 IS ALSO ALLOWED FO R STATISTICAL PURPOSES. 81. IN THE RESULT THE APPEAL OF THE ASSESSEE FOR ASSES SMENT YEAR 2008-09 TO ASSESSMENT YEAR 2012-13 ARE ALLOWED AND APPEAL FOR ASSESSMENT YEAR 2013-14 IS PARTLY ALLOWED FOR STATI STICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 07.08.20 19. SD/- SD/- ( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 07 AUGUST, 2019 /DEV SMT. SEEMA TRIPATHI & NARENDRA TRIPATHI IT(SS)NOS.101TO102/IND/2017,IT(SS)NOS.115TO119/IND/ 17&ITA.NO.300/IND/17 58 COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT. REGISTRAR, I.T .A.T., INDORE