SHRI MOHD. SHAFIQUE, Bhopal V. THE ACIT 3(1), Bhopal

ITSSA 124/IND/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7423 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 9 month(s) 29 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 30-04-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 01-04-2019
• Assessment Year: 2005-2006
• Appeal Filed On: 01-07-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ASHIMA GUPTA
• Assessee Lawyers: GIRISH AGRAWAL; NISHA LAHOTI A RS
• Keywords: Unexplained cash credit; Gift; Business income; Search and seizure; Document seized; Opportunity of being heard; Principle of natural justice; Additional evidence; Question of law; Corroborative evidences; Validity of assessment; Documents seized; Set aside
• Section: 143(3); 142(1); 153A; 27; 132

Judgement Text

[IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] , , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER IT(SS)A NOS.30 TO 36/IND/2016 ASSESSMENT YEARS: 2001-02 TO 2007-08 MOHD. ATIQUE SHAFIQUE VILLA, BUNGLOW NO.7 AHMEDABAD PALACE ROAD BHOPAL / VS. ACIT - 3(1) BHOPAL ( APPELLANT ) ( REVENUE ) P.A. NO. AGWPA6383N IT(SS)A NOS.37 TO 42/IND/2016 ASSESSMENT YEARS: 2001-02 TO 2007-08 MOHD. SHAKEEL SHAFIQUE VILLA, BUNGLOW NO.7 AHMEDABAD PALACE ROAD BHOPAL / VS. ACIT - 3(1) BHOPAL (APPELLANT) (REVENUE ) P.A. NO. ARZPS3328P [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 2 IT(SS)A NOS.124 & 125/IND/2016 ASSESSMENT YEARS: 2005-06 & 2007-08 MOHD. SHAFIQUE SHAFIQUE VILLA, BUNGLOW NO.7 AHMEDABAD PALACE ROAD BHOPAL / VS. ACIT - 3(1) BHOPAL (APPELLANT) (REVENUE ) P.A. NO. ANIPS2739K APPELLANT BY SHRI GIRISH AGRAWAL & MISS NISHA LAHOTI, A.RS RESPONDENT BY SMT. ASHIMA GUPTA, D.R. DATE OF HEARING: 01.04.2019 DATE OF PRONOUNCEMENT: 30.04.2019 / O R D E R PER BENCH: THIS BUNCH OF 15 APPEALS ARE AGAINST SEPARATE ORDERS OF THE CIT(A)-II, BHOPAL DATED 29.1.2016, 28.1.2016 & 4.3.2016 FOR THE ASSESSMENT YEARS 2001-02 TO 2007-08. SINCE COMMON ISSUES ARE INVOLVED, THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THI S CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BRE VITY. [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 3 2. FIRST WE TAKE UP IT(SS)A NO.30/IND/2016 PERTAINING TO THE ASSESSMENT YEAR 2002-03. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ORDER OF THE ASS ESSING OFFICER, WHEREIN HE HAD FAILED TO FOLLOW THE DIRECTIONS CONT AINED IN THE COMBINED ORDER DATED 31.1.2013 IN APPEAL NO.310 TO 316/IND/2012 OF ITAT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE FINDING OF THE A SSESSING OFFICER THAT THE APPELLANT WAS NOT HAVING ANY LEASE HOLD LA ND WITH HIM AND THAT HE DID NOT EARN AGRICULTURAL INCOME OF RS.4,42 ,900/- FROM SUCH LAND. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ADDITION OF RS.4 ,42,900/- TOWARDS INCOME FROM OTHER SOURCES AS MADE BY THE ASSESSING OFFICER. 4. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER AND/OR TO MODIFY THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. 3. DURING THE COURSE OF HEARING, THE ASSESSEE HAS ALSO FILED AN ADDITIONAL GROUND THAT READS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LEARNED ASSESSING OFFICER ERRED IN MAKING THE ADDIT ION AND PASSING THE IMPUGNED ASSESSMENT ORDER UNDER SECTION 153A RW S 143(3) WITHOUT REFERENCE TO ANY INCRIMINATING MATERIAL FOU ND AND SEIZED DURING THE COURSE OF CONDUCT OF SEARCH. 4. THIS IS SECOND ROUND OF LITIGATION. IN THE EARLIE R ROUND OF LITIGATION, MATTER TRAVELLED UP TO THE STAGE OF THIS [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 4 TRIBUNAL AND THE TRIBUNAL IN IT(SS)A NOS.310 TO 316/IND/2012 PERTAINING TO THE ASSESSMENT YEARS 2001-0 2 TO 2007-08 SET ASIDE THE ASSESSMENT TO FILE OF THE A. O. TO FRAME ASSESSMENT AS PER THE DIRECTION GIVEN IN THE ORD ER OF THE TRIBUNAL. THEREBY, THE A.O. WAS DIRECTED TO ADOP T AGRICULTURAL INCOME @ RS.6,000/- PER ACRE IN RESPECT O F THE LAND OWNED BY THE ASSESSEE AND IN RESPECT OF AGRICULTUR AL LAND TAKEN ON LEASE, THE A.O. WAS DIRECTED TO VERIFY T HE CLAIM OF THE ASSESSEE AND DECIDE ACCORDINGLY. THE A.O . THEREAFTER, COMPUTED THE AGRICULTURAL INCOME IN RESPEC T OF AGRICULTURAL LAND OWNED BY THE ASSESSEE IN TERMS OF TH E DIRECTION OF THE TRIBUNAL. HOWEVER, IN RESPECT OF AGRICULTURAL INCOME CLAIMED TO HAVE BEEN EARNED ON THE LAND TAKEN ON LEASE FOR THE PURPOSE OF CARRYING OUT AGRICULTURAL ACTIVITIES, THE SAME WAS NOT FOUND SUPPORTE D BY THE RELEVANT EVIDENCES, THEREFORE, THE ASSESSING O FFICER [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 5 MADE ADDITION OF RS.4,72,501/- AND ALSO DISALLOWED THE RENTAL INCOME OF RS.43,200/-. 5. AGGRIEVED BY THIS, THE ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A), WHO AFTER CONSIDERING THE SUBMISS IONS AND MATERIAL ON RECORD DISMISSED THE CLAIM OF THE ASSESS EE OF EARNING OF INCOME IN RESPECT OF AGRICULTURAL LAND TAK EN ON LEASE. AGAINST THIS, THE ASSESSEE IS IN PRESENT APP EAL. LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIO NS AS MADE IN THE WRITTEN SUBMISSIONS. THE SUBMISSIONS OF THE ASSESSEE ARE REPRODUCED AS UNDER: FIXED FOR HEARING ON 06.02.2019 BEFORE THE HONBLE INCOME TAX APPELLATE TRIBUNAL, I NDORE BENCH, INDORE IT(SS)A NO.: 30/IND/2016TO 36/IND/2016 BY THE ASSES SEE ___________________________________________________ _____ __________ IN THE MATTER OF : MOHD. ATIQUE, BHOPAL PAN : AGWPA6383N ASSESSMENT YEAR :2001-02 TO 2007-08 STATUS : INDIVIDUAL RETURN : A.Y. 2001-02 AT RS. 1,68,088 AND AGRICULTU RE INCOME RS. 6,86,548 ON 20.06.2008 [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 6 A.Y. 2002-03 AT RS. 1,72,005 AND AGRICULTURE INCOME RS. 7,45,741 ON 20.06.2008 A.Y. 2003-04 AT RS. 2,48,908 AND AGRICULTURE INCOME RS. 8,11,511 ON 20.06.2008 A.Y. 2004-05 AT RS. 2,06,024 AND AGRICULTURE INCOME RS. 9,10,166 ON 20.06.2008 A.Y. 2005-06 AT RS. 49,67,512 AND AGRICULTURE INCOM E RS. 10,81,776 ON 20.06.2008 A.Y. 2006-07 AT RS. 4,47,340 AND AGRICULTURE INCOME RS.15,43,915 ON 20.06.2008 A.Y. 2007-08 AT RS. 1,46,347 AND AGRICULTURE INCOME RS. 15,74,930 ON 20.06.2008 ASSESSMENT ORDER : U/S 143(3) RWS153A AND 254 DAT ED 26.03.2014 A.Y. 2001-02 RS. 6,14,400 (ADDITION OF RS. 4,46, 308 AS DISALLOWANCE OF AGRICULTURE INCOME AND RENTAL INCOM E) A.Y. 2002-03 RS. 6,87,706 (ADDITION OF RS. 5,15,70 1 AS DISALLOWANCE OF AGRICULTURE INCOME AND RENTAL INCOM E) A.Y. 2003-04 RS. 8,36,980 (ADDITION OF RS. 5,85,07 1 AS DISALLOWANCE OF AGRICULTURE INCOME AND RENTAL INCOM E) A.Y. 2004-05 RS. 9,16,120 (ADDITION OF RS. 7,10,096 AS DISALLOWANCE OF AGRICULTURE INCOME AND RENTAL INCOM E) A.Y. 2005-06 RS. 57,22,050 (ADDITION OF RS. 7,54,53 6 AS DISALLOWANCE OF AGRICULTURE INCOME AND RENTAL INCOM E) A.Y. 2006-07 RS. 14,94,220 (ADDITION OF RS. 10,46,8 78 AS DISALLOWANCE OF AGRICULTURE INCOME AND RENTAL INCOM E) A.Y. 2007-08 RS. 28,72,280 (ADDITION OF RS. 27,25,9 30 AS DISALLOWANCE OF AGRICULTURE INCOME, RENTAL INCOME A ND ADDITION OF ENTRIES IN BS-1) CIT(A) ORDER :DATED 29.01.2016 ADDITION SUSTAINED F OR ALL THE YEARS ON ACCOUNT OF AGRICULTURE INCOME FROM LEASE HOLD LAND A.Y. 2001-02 RS. 4,04,200 A.Y. 2002-03 RS. 4,42,900 A.Y. 2003-04 RS. 4,85,900 A.Y. 2004-05 RS. 5,50,400 [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 7 A.Y. 2005-06 RS. 5,93,400 A.Y. 2006-07 RS. 7,31,382 A.Y. 2007-08 RS. 7,86,930 AND RS. 16,02,200 FOR ENT RIES APPEARING IN ONE SEIZED DOCUMENT ALL OTHER ADDITIONS DELETED FOR WHICH DEPARTMENT IS NOT IN APPEAL BEFORE THE HONBLE ITAT ____________________________________________ GROUNDS OF APPEAL IN ALL THE YEARS ARE COMMON EXCEP T FOR QUANTUM INVOLVED AND HENCE A COMBINED SUBMISSION IS BEING MADE WHICH MAY PLEASE BE CONSIDERED. IN AY 2007-08, THERE IS ANOTHER GROUND (NO. 04) FOR AD DITION OF RS. 16,02,200 FOR ENTRIES APPEARING IN ONE SEIZED DOCUMENT WHICH IS N OT PRESSED. A. ADDITIONAL GROUNDS OF APPEAL FOR ALL THE YEARS UNDER APPEAL I.E. A.Y. 2001-02 TO 2007-08, ASSESSEE HAS FILED ADDITIONAL GROUNDS OF APPEAL THROUGH A SEPARA TE APPLICATION DATED 07.09.2018 WHICH ARE LEGAL GROUNDS GOING TO THE ROOT OF THE MATTER. ASSESSEE PRAYS THAT THESE GROUNDS OF APPEAL MAY PLE ASE BE ADMITTED IN THE INTEREST OF NATURAL JUSTICE AND APPROPRIATE ADJUDICAT ION OF THE MATTER. 1. INSTANT PROCEEDINGS ARE THE SECOND ROUND OF APPEAL BEFORE THE HONBLE ITAT BENCH OF INDOREAFTER THE MATTER WAS SET ASIDE BY THE HONBLE BENCH TO THE FILE OF AO VIDE ORDER PRONOUNCED ON 31.01.2013 IN APPEAL NOS. IT(SS)A 310 TO 316/IND/2012 . [REFER PB 375-396] THE MATTER WAS SET ASIDE BY THE HONBLE BENCH OWING TO ADDITIONAL EVIDENCES FILED BY THE ASSESSEE WHICH WERE NOT CONS IDERED BY THE AUTHORITIES BELOW. WHILE SETTING ASIDE THE MATTER TO THE FILE OF LD. A O, HONBLE ITAT NOTED THE FOLLOWING FACTS IN ITS ORDER AT INTERNAL PAGE 13 PARA 10 [PB 381] IN RESPECT OF THE LAND TAKEN ON LEASE , THE MATTER IS RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR DETERMINING THE TOTAL LAND TAKEN ON LEASE AFTER CONSIDERING THE ADDITIONAL EVIDENCE FIL ED BEFORE CIT(A) AS [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 8 DISCUSSED HEREINABOVE, AND AFTER ALLOWING DEDUCTION ON ACCOUNT OF LEASE RENT PAID BY THE ASSESSEE THEREON , THE ASSESSING OFFICER IS TO COMPUTE THE AGRICULTURAL INCOME OUT OF SUCH LEASE H OLD LANDS . WE DIRECT ACCORDINGLY. THIS CONCLUSION IS APPLICABLE T O ALL THE ASSESSMENT YEARS, UNDER CONSIDERATION. [EMPHASIS SUPPLIED] 2. THE ASSESSMENT WAS COMPLETED U/S 143(3)RWS 153A. AD DITIONS MADE BY THE LD. AO RELATING TO AGRICULTURE INCOME ON LEASE HOLD LANDS IS WITHOUT REFERENCE TO ANY INCRIMINATING MATERIAL FOUND DURIN G THE COURSE OF SEARCH CONDUCTED IN THE CASE OF THE ASSESSEE. 3. SEARCH WAS CONDUCTED IN THE CASE OF MOHD. SHAFIQUE, MOHD. ATIQUE AND SURVEY IN THE CASE OF M/S. EKTA TRANSPORT CO.APPEAL S OF MOHD. SHAFIQUE AND MOHD. ATIQUE ARE IN APPEAL BEFORE YOUR HONORS. 4. ADDITIONAL GROUNDS OF APPEAL GO TO THE ROOT OF THE MATTERAND HENCE ARE VITAL TO THE DISPOSAL OF SAID APPEALS. REFERENCE TO INCRIMINATING MATERIAL IS OF UTMOST IMPORTANCE TO MAKE ADDITION U/S 153A.A DMITTANCE OF ADDITIONAL GROUNDS SHALL HELP THE ASSESSEE IN GETTI NG JUSTICE. 5. RELIANCE IS PLACED ON THE FOLLOWING DECISIONS FOR A DMITTANCE OF LEGAL GROUNDS IN THE INSTANT APPEALS A. HONBLE APEX COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD [1998] 229 ITR 383 [CLPB 01-02] B. HONBLE ITAT CHENNAI (TM) BENCH IN THE CASE OF HEMAL KNITTING INDUSTRIES [2010] 127 ITD 160 [CLPB 39-45] C. HONBLE ITAT MUMBAI BENCH IN THE CASE OF ANJLIPANDIT[2017] 88 TAXMANN.COM 657 (MUMBAI - TRIB.) PARA 3 AND 4 [CLPB 25-38] 6. ASSESSEE PRAYS THAT THE ADDITIONAL GROUNDS OF APPEA L BEING LEGAL GROUNDS ON FUNDAMENTAL ISSUE OF REFERENCE TO INCRIM INATING MATERIAL FOUND DURING THE COURSE OF SEARCH AND GOES THE ROOT OF MATTER AND HENCE PLEASE BE ADMITTED FOR ADJUDICATION OF MATTER. [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 9 B. FACTS OF THE CASE: (AY 2001-02 TO 2007-08) 1. THE MAIN SOURCE OF INCOME FOR ASSESSEE IS AGRICULTU RE. IN ADDITION TO THIS HE IS ALSO EARNING INCOME FROM THE BUSINESS OF TRAN SPORTATION, RENTAL INCOME AND INTEREST INCOME. [PB 32] 2. SEARCH AND SEIZURE OPERATIONS U/S 132 WERE CONDUCTED IN THE CASE OF MOHD. SHAFIQUE GROUP ON 21.09.2006 WHICH INCLUDES THE INSTANT APPELLANT. NOTICE U/S 153A WAS ISSUED ON 19.05.2008 FOR THE ALL THE YEARS UNDER APPEAL. 3. DURING THE PROCEEDINGS, BOTH IN THE FIRST ROUND AND IN THE INSTANT SECOND ROUND, NO REFERENCE HAS BEEN MADE BY THE LD. AO TO ANY INCRIMINATING MATERIAL FOUND DURING THE SEARCH OPERATIONS CARRIED OUT IN THE CA SE OF MOHD. SHAFIQUE, MOHD. ATIQUE AND SURVEY IN THE CASE OF M/S. EKTA TRANSPORT COMPANY, ON THE BASIS OF WHICH ADDITION IS MADE IN THE IMPUGNED YEARS TOWARDS AGRICULTURE INCOME FROM LEAS EHOLD LAND. 4. ASSESSEE IS IN SECOND ROUND OF APPEAL BEFORE THE HO NBLE ITAT INDORE BENCH AFTER THE MATTER WAS SET ASIDE TO THE FILE OF LD. AO VIDE ORDER PRONOUNCED ON 31.01.2013 IN APPEAL NUMBERS IT(SS)A 310 TO 316/IND/2012 OWING TO LAND RELATED KHASRA DOCUMENTS WHICH WERE F ILED BEFORE LD. CIT(A). [INTERNAL PAGE 13PB 381] 5. DURING THE FIRST ROUND OF APPELLATE PROCEEDINGS BEF ORE LD. CIT(A), ASSESSEE HAS SUBMITTED KHASRA DOCUMENTS AND LEASE A GREEMENTS AS AN EVIDENCE TO PROVE THE AGRICULTURE INCOME EARNED DUR ING ALL THE YEARS UNDER APPEAL. [PB 13, 23-28, 51-57] 6. APPELLANT PRODUCED THREE OWNERS FROM WHOM AGRICULTU RE LAND WAS TAKEN ON LEASE, OF WHICH STATEMENT OF ONLY MOHD. LA EEK WAS RECORDED BY THE LD. AO. [PB 225 AND AO PAGE 5] [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 10 7. LD. CIT(A) FAILED TO ADMIT THE EVIDENCES FILED AND HENCE THE MATTER WAS SET ASIDE TO THE FILE OF LD. AO BY THE HONBLE BENC H OF ITAT TO ALLOW AGRICULTURE INCOME @ RS. 6,000 PER BIGHA. HONBLE ITAT MADE A FACTUAL STATEMENT IN THE SAID O RDER THATTHE ASSESSEE IS OWNING AGRICULTURAL LAND AND ALSO SOME LAND WAS TAKEN ON LEASE. [PB 378 BACK SIDE INTERNAL PAGE 8] FURTHER,IN RESPECT OF AGRICULTURE INCOME FROM LEASE HOLD LAND, DIRECTIONS WERE GIVEN TO DETERMINE TOTAL LAND TAKEN ON LEASE AND COMPUTE AGRICULTURE INCOME AFTER ALLOWING DEDUCTION OF LEASE RENTALS PAID. [PB 381 PARA 10] 8. DURING THE SET ASIDE PROCEEDINGS BEFORE LD. AO, AGR ICULTURE INCOME ON SELF-OWNED LAND WAS COMPUTED @ RS. 6000 PER ACRE IN STEAD OF BIGHA AND BALANCE WAS ADDED. FOR THE ADDITION OF AGRICULTURE INCOME FROM LEASE HOLD LAND, THE SAME WAS SUSTAINED FOR ALL THE YEARS IN APPEAL. 9. IN THE SECOND ROUND OF APPEAL BEFORE LD. CIT(A), AD DITION MADE BY THE LD. AO ON ACCOUNT OF SELF-OWNED LAND WAS DELETED BY APPLYING THE FINDING GIVEN BY HONBLE ITAT OF RS. 6,000 PER BIGH A. ADDITION OF AGRICULTURE INCOME ON LAND TAKEN ON LEASE WAS SUSTA INED. 10. IN A.Y. 2007-08, IN ADDITION TO THE ABOVE MENTIONED INCOME SUSTAINED FOR AGRICULTURE INCOME ON LAND TAKEN ON LEASE, ADDI TION OF RS. 16,02,200 WAS SUSTAINED RELATING TO ONE SEIZED DOCUMENT VIDE BS-1. 11. AGGRIEVED ASSESSEE IS IN APPEAL BEFORE YOUR HONORS. C. SUBMISSION: (A.Y. 2001-02 TO 2007-08) 1. HONBLE ITAT BENCH OF INDORE VIDE ORDER DATED 31.01 .2013 IN APPEAL NOS. IT(SS)A 310 TO 316/IND/2012 STATED [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 11 PARA 6 - ..HOWEVER, THE FACT REMAINS THAT THE ASSESSEE IS OWNING AGRICULTURAL LAND AND ALSO SOME LAND WAS TAK EN ON LEASE . [EMPHASIS SUPPLIED] [PB 378 BACK SIDE INTERNAL PAGE 8] PARA 10- IN RESPECT OF THE LAND TAKEN ON LEASE , THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR DETERMINING THE TOTAL LAND TAKEN ON LEASE AFTER CONSIDERING THE ADDITIONAL EVIDENCE FILED BEFORE LD. CIT(A) AS DISCUSSED HEREINABOVE, AND AFTER ALLOWING DEDUCTION ON ACCOUNT OF LEASE RENT PAID BY THE ASSESSEE THEREON, THE ASSESSING OFFICER IS TO COMPUTE THE AGRICULTURAL INCOME OUT OF SUCH LEASE HOLD LANDS . WE DIRECT ACCORDINGLY. THIS CONCLUSION IS APPLICA BLE TO ALL THE ASSESSMENT YEARS, UNDER CONSIDERATION. [EMPHASIS SUPPLIED] [PB 381 INTERNAL PAGE 13] FROM THE ABOVE EXTRACTS OF THE ORDER OF HONBLE BEN CH, THE FACT THAT AGRICULTURAL ACTIVITY HAS BEEN CARRIED OUT BY ASSESSEE BOTH ON OWNED LAND AND LEASE HOLD LAND IS UNDISPUTED. AS PE R THE DIRECTIONS, IT IS EVIDENT THAT LD. AO WAS DIRECTED TO DETERMINE TH E LAND TAKEN ON LEASE AND TO COMPUTE THE AGRICULTURE INCOME AFTER A LLOWING DEDUCTION OF LEASE RENTALS PAID THEREFOR. 2. WITHOUT PREJUDICE TO ADDITIONAL GROUNDS INTHE THREE YEARS UNDER APPEAL CHALLENGING THE VALIDITY OF ADDITIONS MADE WITHOUT REFERENCE TO ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH, IN THE ASSESSMENTS MADE BY INVOKING SECTION 153A EXTRACTS FROM THE ASSESSMENT ORDERS DATED 31.12.200 8 FOR ALL THE YEARS UNDER APPEAL I.E. A.Y. 2001-02 TO 2007-08 HAV E BEEN REPRODUCED BY THE LD. AO IN THE IMPUGNED ASSESSMENT ORDER. [PB 312,319,326,333,340,347,354] THESE EXTRACTS VERY CATEGORICALLY STATES THE FACTS ABOUT ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE COUR SE OF SEARCH RELATING TO ADDITION MADE FOR THE AGRICULTURE INCOM E FROM LEASEHOLD LAND. [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 12 ONE SUCH IMPUGNED ASSESSMENT ORDER FOR AY 2007-08 MAY BE REFERRED AT PAGE 6 WHICH STATES 1. .APART FROM THE ABOVE NOT A SINGLE PAGE OF AGRICULTURE ACTIVITY WERE FOUND DURING SEARCH AND SEIZURE ACTION . IN ADDITION TO ABOVE NOT A SINGLE INSTRUMENT REGARDING AGRICULTURE ACTIV ITY WERE FOUND . 2. FOLLOWING FACTS IS IMPORTANT TO MENTION REGARDING THE CLAIM OF AGRICULTURE INCOME BY ASSESSEE : 3. 2. ..EVEN DURING THE SEARCH & SEIZURE ACTION, NO DETAILS OF AGRICULTURE ACTIVITY WERE FOUND . 4. IN THE CASH BOOK SUBMITTED BY THE ASSESSEE . 5. 5. EVEN AT THE TIME OF SEARCH, NO SUCH DOCUMENT HAS BEEN FOUND. 6. 6. THE LEASE AGREEMENT SUBMITTED BY THE ASSESSEE 7. 13. NONE OF THE AGRICULTURE RECEIPTS APPEARING IN CASH BOOK ARE IT IS EVIDENT FROM ABOVE FACTS ALREADY ON RECORD THAT LD. AO HAS GIVEN A FACTUAL AND CATEGORICAL FINDING ABOUT NON-EXISTENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH RELATING TO AGRICULTURE INCOME. 3. IN THE SET ASIDE PROCEEDINGS, BOTH BEFORE LD. AO AN D LD. CIT(A) NO REFERENCE HAS BEEN MADE TO ANY INCRIMINATING MATERI AL FOUND DURING THE COURSE OF SEARCH OPERATIONS ON THE BASIS OF WHICH A DDITION HAS BEEN SUSTAINED FOR THE AGRICULTURE INCOME ON LEASEHOLD L AND. 4. IN THE STATEMENT OF ASSESSEERECORDED U/S 132 ON 21. 09.2006, A SPECIFIC QUESTION WAS RAISED VIDE QUESTION NO. 8 WHICH FURTHER EMPHASIZES THE FACT THAT NO DOCUMENTS RELATING TO THE AGRICULTURE LAND TAKEN ON LEASE WERE FOUND. RELEVANT EXTRACT [PB 34] [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 13 THE ABOVE QUESTION BY THE OFFICER RECORDING STATEME NT DURING THE COURSE OF SEARCH FURTHER CORROBORATES THE FACT THAT NO DOCUMENTS RELATING TO AGRICULTURE LAND TAKEN ON LEASE WERE FO UND DURING THE COURSE OF SEARCH. NO ADDITION OUGHT TO HAVE BEEN MADE IN A BSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH RELATING TO AGRICULTURE INCOME. 5. IN SEARCH ASSESSMENT, ANY UNDISCLOSED INCOME, WHICH CAN ULTIMATELY BE ADDED, IS ONLY TO THE EXTENT OF ANY UNRECORDED ASSE TS / MATERIAL FOUND OR ANY INCRIMINATING DOCUMENTS FOUND AS REPRESENTING U NDISCLOSED INCOME EARNED. RELIANCE IS PLACED ON FOLLOWING JUDICIAL PRECEDENTS OF THE HONBLE JURISDICTIONAL INDORE BENCH OF ITAT WHICH IN TURN HAS FOLLOWED / REFERRED DECISIONS OF VARIOUS HONBLE HIGH COURTS NO ADDITI ON WARRANTED IN ABSENCE OF INCRIMINATING MATERIAL A. KAMAL KISHORE KOTWANI IT(SS)A NO. 186 TO 190/IND/2016 DATED 04.07.2018 [CLPB 03-13] B. KAMTA PRASAD DWIVEDI IT(SS)A NO. 182 TO 185/IND/2016 DATED 19.09.2018 [CLPB 14-24] C. JAY DEE SECURITIES & FINANCE LTD. [2017] 88 TAXMANN.COM 626 (DELHI - TRIB.) DATED 17.04.2017 [CLPB 46-49] [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 14 6. IN THE HEARING FIXED ON 03.10.2018 HONBLE BENCH GA VE A DIRECTION TO LD. CIT(DR) TO SUBMIT REPORT OF ASSESSING OFFICER IN TH E CASE OF MOHD. ATIQUE AND MOHD. SHAFIQUE RELATING TO INCRIMINATING MATERIAL. VIDE LETTER DATED 01.02.2019, LD. CIT(DR) PROVIDED THE COPIES OF PAGE 262 AND 263 & 274 TO 278. IT IS PERTINENT TO MENTION HERE THAT PAGE 262 AND 2 63 HAS ALREADY BEEN CONSIDERED BY THE HONBLE CO-ORDINATE BENCH VI DE ORDER DATED 31.01.2013 AT PB 377 INTERNAL PAGE 6 PARA 6. PAGE 262 AND 263 IS FORMAT OF AFFIDAVIT OF MHD. ATI QUE TO OBTAIN LICENSE FOR USE OF REVOLVER. CONTENT OF WHICH HAS B EEN REPRODUCED BY LD. AO IN ASSESSMENT ORDER. LD. AO FAILED TO REPROD UCE VERBATIM VERSION OF CONTENT OF SEIZED DOCUMENT PAGE 262 AND 263. THE SE DOCUMENTS HAVE FOLLOWING DISCREPANCIES - IT IS AN INCOMPLETE DOCUMENT - IT IS NOT SIGNED - IT HAS SEVERAL OVER-WRITING, SCRIBBLING AND CUTTING . POINT NO.2 OF THIS SEIZED DOCUMENTS STATES DETAIL S OF MOVEABLE AND IMMOVEABLE PROPERTIES ALONG WITH AGRICULTURAL LAND. PAGE 274 TO 278 IS THE PARTNERSHIP DEED FOR THE BUS INESS RUN UNDER THE NAME AND STYLE OF M/S. S T DEVELOPERS. ASSESSEE I.E . MOHD. ATIQUE IS NOT A PARTY TO THIS DEED AND HENCE THE DOCUMENT NEITHER BELONGS TO NOR PERTAINS TO HIM. FROM THE ABOVE, IT IS EVIDENTLY ESTABLISHED THAT TH ERE IS NO INCRIMINATING MATERIAL FOUND AND SEIZED DURING THE CONDUCT OF SEA RCH RELATING TO THE ADDITION IN RESPECT OF AGRICULTURAL INCOME FROM LEA SEHOLD LAND. 7. WITHOUT PREJUDICE TO THE ABOVE SUBMISSION, IT IS SUBMITTED THATHONBLE INDORE BENCH OF ITAT NOTED THE FACT THAT ASSESSEE IS OWNING AGRICULTURAL LAND AND ALSO SOME LAND WAS TAKEN ON LEASE ANDGAVE A VERY SPECIFIC DIRECTION AT PARA 10 [INTERNAL PAGE 13 PB 381] TO LD. AO TO COMPUTE THE LEASE HOLD LAND HELD BY ASSESSEE. IT WAS ALSO DIREC TED TO COMPUTE THE AGRICULTURE EARNINGS FROM THE LEASEHOLD LAND AFTER ALLOWING DEDUCTION OF LEASE RENTALS PAID. ASSESSEE SUBMITTED THE DETAILS OF THE LEASE HOLD LAND [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 15 HELD BY ASSESSEE DURING THE FIRST ROUND OF PROCEEDI NGS BEFORE LD. AO. [PB 311 AND 312]. ASSESSEE PRAYS THAT DIRECTION MAY ACCORDINGLY BE GI VEN TO THE LD. AO AND RELIEF MAY PLEASE BE GRANTED. CONSIDERING THE ABOVE FACTS, CIRCUMSTANCES OF THE C ASE, SUBMISSIONS MADE, DOCUMENTS ON RECORD AND JUDICIAL PRECEDENCE, APPEAL OF THE ASSESSEE MAY PLEASE BE ALLOWED BY DELETING THE ADDITIONS MADE BY THE LD. A O AND SUSTAINED BY THE LD. CIT(A). SUBMITTED AUTHORISED REPRESENTATIVE 6. LD. D.R. OPPOSED THESE SUBMISSIONS AND SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. LD. COUNSEL FO R THE ASSESSEE HAS TAKEN US THROUGH VARIOUS DOCUMENTS FILED I N SUPPORT OF CLAIM OF LAND TAKEN ON LEASE. HOWEVER, NO EVIDENCE WITH REGARD TO THE CARRYING OUT ACTIVITIES HAS BEEN FILED. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE EFFECTIVE GROUND IN T HIS [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 16 APPEAL ON MERIT IS WITH REGARD TO THE DISALLOWANCE OF CL AIM OF AGRICULTURAL INCOME EARNED FROM THE LANDS TAKEN ON LEASE. WE FIND THAT THE ASSESSEE HAS FILED CONFIRMATION AND COPY OF LEASE AGREEMENT WITH ONE MR. AMAN ULLA KHAN ENCLOSED AT PAPER BOOK PAGE NOS.51 TO 57 AND SHRI NARAYAN SINGH MEENA. IT IS STATED IN THE AGREEMENT THAT LAND WAS GIVEN TO THE ASSESSEE. LD. COUNSEL FOR THE ASSESSEE HAS ALSO TAKEN US THROUGH THE REVENUE RECORDS TO BUTTRESS THE CONTENTION THAT IN FACT AGRICULTURAL ACTIVI TIES WERE BEING CARRIED OUT AND THE ASSESSEE IN FACT HAD EAR NED AGRICULTURAL INCOME THERE FROM. HE SUBMITTED THAT THE A.O. SUBMITTED THAT THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN REJECTING THE CLAIM OF THE ASSESSEE. HE CONTENDED TH AT MOREOVER, THERE IS NO INCRIMINATING MATERIAL WHATSOEVER WAS FOUND DURING THE SEARCH AS SUCH THE ADDITION IS NO T ON THE BASIS OF ANY INCRIMINATING MATERIAL. WE FIND THAT I N [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 17 EARLIER ROUND, THIS TRIBUNAL IN IT(SS)A NOS.310 TO 316/IND/2012 DATED 31.1.2013 HAD DIRECTED THE A.O. AS UNDER: 10. IN VIEW OF THE ABOVE DISCUSSION AND THE DOCUMEN TARY EVIDENCE PLACED ON RECORD WITH REGARD TO THE LAND O WNED BY THE ASSESSEE, WE DIRECT THE ASSESSING OFFICER TO ALLOW AGRICULTURAL INCOME @ RS.6000/- PER BIGHA. THE ASSESSING OFFICE R IS DIRECTED TO WORK OUT THE ACTUAL HOLDING OF LAND BY THE ASSESSEE AND HIS FAMILY MEMBERS AND TO COMPUTE THE AGRICULTURAL INCOME THER EON BY MULTIPLYING WITH RS.6000/- PER BIGHA PER ANNUM. IN RESPECT OF THE LAND TAKEN ON LEASE, THE MATTER IS RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR DETERMINING THE TOTAL LAND TA KEN ON LEASE AFTER CONSIDERING THE ADDITIONAL EVIDENCE FILED BEFORE CI T(A) AS DISCUSSED HEREINABOVE, AND AFTER ALLOWING DEDUCTION ON ACCOUN T OF LEASE RENT PAID BY THE ASSESSEE THEREON, THE ASSESSING OFFICER IS TO COMPUTE THE AGRICULTURAL INCOME OUT OF SUCH LEASE HOLD LAND S. WE DIRECT ACCORDINGLY. THIS INCLUSION IS APPLICABLE TO ALL T HE ASSESSMENT YEARS, UNDER CONSIDERATION. 8. THE A.O. IN PURSUANCE OF THE AFORESAID DIRECTION VERIFIED THE CONTENTION OF ASSESSEE HOWEVER, HE REJE CTED THE CLAIM OF THE ASSESSEE IN RESPECT OF THE LAND TAKEN ON L EASE ON THE FOLLOWING GROUNDS: AS FAR AS ADDITIONAL EVIDENCES REGARDING LEASE HOL D LAND ARE CONCERNED, THE ASSESSEE HAS FILED THE COPIES OF KHASRA AND LEA SE AGREEMENT IN SOME CASES. THE SUBMISSION OF THE ASSESSEE WAS DULY CONSIDERED, COPIES OF KHASRAS AND LEASE AGREEMENTS WERE PERUSED BUT THE CONTENTION OF THE ASSESSEE REGARDING AGRICULTURE INCOME FROM LEASE HOLD LAND IS NOT FOUN D ACCEPTABLE BECAUSE OF THE FOLLOWING REASONS:- [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 18 THE COPIES OF KHASRA PRODUCED BY THE ASSESSEE AS AD DITIONAL EVIDENCES PROVES THAT LAND IS OWNED BY THE PERSONS WHOSE NAME ARE WRITTEN IN THE KHASRA. UNDER COLUMN 4 OF FORM P-II KHASRA, WHERE THE NAME OF THE LEASE HOLDER IS USUALLY WRITTEN, THE NAME OF THE ASSESSEE IS NOT APPEARING MEANING THEREBY THE LAND HAS NOT BEEN GIVEN ON LEAS E AS PER GOVERNMENT RECORDS. IN SOME CASES, THE ASSESSEE HAS FURNISHED LEASE AGR EEMENTS WITH THE FARMERS FROM WHOM THE SAID LAND HAS BEEN CLAIMED TO BE TAKEN ON BATAI. THESE AGREEMENTS ARE MADE ON PLAIN PAPER WITH NO ST AMP ON THEM AND IT APPEARS THAT THEY HAVE BEEN SIGNED IN ONE HAND WRIT ING. THEREFORE THE GENUINENESS OF SUCH AGREEMENTS HAS NOT BEEN ESTABLI SHED. DURING THE ASSESSMENT PROCEEDINGS AND THE SET ASIDE PROCEEDINGS ALSO THE ASSESSEE WAS REQUIRED TO FURNISH ANY PROOF OF AGRIC ULTURE ACTIVITIES BEING DONE ON THE SAID LAND OR ANY PROOF OF SALE OF YIELD . THE ASSESSEE HAS FAILED TO FURNISH ANY DOCUMENTARY EVIDENCE SUCH AS BILLS/VOUCHERS OF SEEDS AND FERTILIZERS, TRANSPORT EXPENSES, AGRICULT URE EQUIPMENTS, IRRIGATION FACILITIES ETC. THE ASSESSEE DID NOT FURNISH ANY P ROOF OF SALE OF AGRICULTURE PRODUCE ALSO. MERELY EXISTENCE OF AGRICULTURE LAND DOES NOT ESTAB LISH THAT ACTUALLY ANY INCOME HAS BEEN GENERATED ON IT BY THE ASSESSEE. 9. THE LD. CIT(A) AFFIRMED THE AFORESAID FINDING BY OBSERVING AS UNDER: 7.4(B) SO FAR AS THE CLAIM OF THE APPELLANT OF HAV ING LAND ON LEASE IS CONCERNED, THE ADDITIONAL EVIDENCE PROD UCED IN THIS REGARDS DURING THE SET-ASIDE PROCEEDINGS DOES NOT P ROVE THE CLAIM IN ANY WAY. THE NAME OF THE ASSESSEE IS NOT APPEARING UNDER COLUMN 4 OF FORM P-II KHASRA. THUS, IT CANNOT BE HELD THA T HE HAD TAKEN LAND ON LEASE OR THAT HE WAS THE CULTIVATOR ON THES E LANDS. THE ORDER OF THE A.O. REJECTING THE ASSESSEES CLAIM OF DERIVING AGRICULTURAL INCOME FROM THE LEASE HOLD LAND, IN TH E ABSENCE OF THE ASSESSEES NAME APPEARING UNDER COLUMN 4 OF FORM P- II KHASRA, IS UPHELD. REGARDING THE SECOND ADDITIONAL EVIDENCE FILED, TH E A.O. IS HELD TO BE JUSTIFIED IN HOLDING THAT THE LEASE DEED S ON PLAIN PAPER FILED AS ADDITIONAL EVIDENCE CANNOT BE ACCEPTED AS GOOD EVIDENCE TO [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 19 PROVE THE CLAIM OF AGRICULTURAL INCOME BEING EARNED FROM LEASE HOLD LAND. IN VIEW OF THE ABOVE, THE ADDITION OF RS.4,42,900/ - ON ACCOUNT OF REJECTION OF THE ASSESSEES CLAIM OF AGRICULTURA L INCOME FROM LEASE HOLD LAND IS UPHELD. 10. FROM THE AFOREMENTIONED FINDING OF THE AUTHORIT IES BELOW, IT IS CLEAR THAT BOTH THE AUTHORITIES DID NOT AC CEPT THE CLAIM OF THE ASSESSEE ON THE BASIS THAT THE ASSESSEE FAILED TO SUPPORT THE CARRYING OUT OF AGRICULTURAL ACTIV ITIES ON THE CLAIMED LEASE HOLD LAND. UNDISPUTEDLY, THE ASSE SSEE DID NOT EVEN FURNISH ANY PROOF OF AGRICULTURAL ACTIVI TIES WAS BEING CARRIED OUT AT THE SAID LEASE HOLD LAND. THE ASSESSEE COULD NOT SUPPORT THE EARNING OF AGRICULTURAL INCOME ON THE LEASE HOLD LAND BY FURNISHING CREDIBLE EVIDENCE. WHEN THE ASSESSEE HAS CLAIMED TO HAVE BEEN CARRYING OUT AGRICULTURAL ACTIVITY AT SUCH A LARGE SCALE, THE NORMAL COROLLARY WOULD BE THAT ASSESSEE MIGHT HAVE INCURRED HUGE EXPENSES IN THE FORM OF PURCHASE OF SE ED, TILLING/CULTIVATION OF LAND, ELECTRICITY BILLS AND [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 20 TRANSPORTATION OF THE AGRICULTURAL PRODUCE AND ABOVE ALL PROOF OF SALE OF AGRICULTURAL PRODUCE. IN OUR CONSIDE RED VIEW, THE EVIDENCES SO FURNISHED BY THE ASSESSEE IN SUPPORT OF HIS CLAIM ARE NOT SUFFICIENT TO COME TO A CONCLUSIO N THAT THE ASSESSEE HAS BEEN CARRYING OUT ANY AGRICULTURAL ACTIVI TY AT THE LEASE HOLD LAND AND EARNING AGRICULTURAL INCOME THERE FROM. THEREFORE, THE FINDING OF FACT AS ARRIVE D AT BY THE AUTHORITIES BELOW CANNOT BE DISTURBED. THIS GROU ND OF THE ASSESSEES APPEAL IS DISMISSED. 11. NOW COMING TO THE ADDITIONAL GROUND OF THE ASSESSE ES APPEAL THAT READS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LEARNED ASSESSING OFFICER ERRED IN MAKING THE ADDIT ION AND PASSING THE IMPUGNED ASSESSMENT ORDER UNDER SECTION 153A RW S 143(3) WITHOUT REFERENCE TO ANY INCRIMINATING MATERIAL FOU ND AND SEIZED DURING THE COURSE OF CONDUCT OF SEARCH. 12. LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE IN THE WRITTEN SUBMISSIONS. TH E WRITTEN SUBMISSIONS OF THE ASSESSEE ARE AS UNDER: [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 21 FIXED FOR HEARING ON 14.02.2019 BEFORE THE HONBLE INCOME TAX APPELLATE TRIBUNAL, I NDORE BENCH, INDORE IT(SS)A NO.: 30/IND/2016TO 36/IND/2016 BY THE ASSES SEE IN THE MATTER OF : MOHD. ATIQUE, BHOPAL PAN : AGWPA6383N ASSESSMENT YEAR :2001-02 TO 2007-08 STATUS : INDIVIDUAL MAY IT PLEASE YOUR HONORS, IN THE COURSE OF HEARING HELD ON 06.02.2019, HONBL E BENCH WAS KIND IN GIVING AN OPPORTUNITY TO THE LD. CIT(DR) TO MAKE HE R SUBMISSION ON THE CASE LAWS RELATING TO THE ADDITIONAL GROUNDS FILED BY TH E ASSESSEE. 2. A WRITTEN SUBMISSION ON THE ADDITIONAL GROUNDS ALON G WITH RELEVANT JUDICIAL DECISIONS IS ALREADY ON RECORD. THIS FURTHER SUBMIS SION MAY PLEASE BE CONSIDERED IN CONTINUATION TO THE EARLIER SUBMISSIO N ALREADY ON RECORD. 3. ASSESSEE VIDE APPLICATION DATED 04.09.2018 FILED ON 07.09.2018 RAISED ADDITIONAL GROUNDS OF APPEAL. THESE ADDITIONAL GROU NDS OF APPEAL GO THE ROOT OF THE MATTER AND ARE VITAL TO THE DISPOSAL OF THE SAID APPEALS. THEIR ADMITTANCE SHALL HELP APPELLANT IN GETTING JUSTICE. 4. RULE 11 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 READS THE APPELLANT SHALL NOT, EXCEPT BY LEAVE OF THE TRI BUNAL, URGE OR BE HEARD IN SUPPORT OF ANY GROUND NOT SET FORTH IN THE MEMOR ANDUM OF APPEAL, BUT THE TRIBUNAL, IN DECIDING THE APPEAL, SHALL NOT BE CONFINED TO THE GROUNDS SET FORTH IN THE MEMORANDUM OF APPEAL OR TAKEN BY L EAVE OF THE TRIBUNAL UNDER THIS RULE : [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 22 PROVIDED THAT THE TRIBUNAL SHALL NOT REST ITS DECIS ION ON ANY OTHER GROUND UNLESS THE PARTY WHO MAY BE AFFECTED THEREBY HAS HAD A SUF FICIENT OPPORTUNITY OF BEING HEARD ON THAT GROUND . TRIBUNAL IS UNDER STATUTORY OBLIGATION NOT ONLY TO ENTERTAIN PLEA BUT ALSO TO DECIDE THE SAME AFTER PROVIDING SUFFICIENT OPPORTUN ITY OF BEING HEARD TO THE OTHER SIDE. 5. THERE ARE DIRECT DECISIONS WHICH DEAL WITH THE SUBJE CT MATTER OF THIS SUBMISSION RELATING TO ADMISSION OF ADDITIONAL GROU ND IN THE SECOND ROUND OF APPELLATE PROCEEDINGS BEFORE THE HONBLE TRIBUNA L. THESE ARE IN ADDITION TO AND IN CONTINUATION OF THE CASE LAW PAPER BOOK A LREADY ON RECORD. A CASE LAW PAPER BOOK VOLUME 2 IS FURNISHED WITH THIS SU BMISSION. A) HONBLE BOMBAY HIGH COURT IN THE CASE OF INVENTORS INDUSTRIAL CORPN. LTD [1992] 194 ITR 548 HEAD NOTE SECTION 251 OF THE INCOME-TAX ACT, 1961 COMMISSIONER (APPEALS) POWERS OF ASSESSM ENT YEAR 1958-59 WHETHER A GROUND BY WHICH JURISDICTION TO MAKE ASSES SMENT ITSELF IS CHALLENGED CAN BE URGED BEFORE ANY AUTHORITY FOR FI RST TIME HELD, YES WHETHER, THEREFORE, ASSESSEE WAS ENTITLED TO CHALLE NGE JURISDICTION OF INCOME-TAX OFFICER TO INITIATE REASSESSMENT PROCEED INGS BEFORE APPELLATE ASSISTANT COMMISSIONER IN SECOND ROUND OF PROCEEDIN GS EVEN THOUGH HE HAD NOT RAISED IT EARLIER BEFORE INCOME-TAX OFFICER OR IN EARLIER APPEAL BEFORE AAC HELD, YES [EMPHASIS SUPPLIED] B) HONBLE ITAT BENCH OF KOLKATA A IN THE CASE OF PEERLESS GEN. FIN. & INV. CO. LTD. [2008] 21 SOT 440 HEAD NOTE - SECTION 253 OF THE INCOME-TAX ACT, 1961 - APPELLATE TRIBUNAL - APPEALS TO - ASSES SMENT YEAR 1994-95 - WHETHER JURISDICTIONAL PROVISION, WHICH IS MANDATOR Y, CAN BE TAKEN UP IN SECOND ROUND OF LITIGATION AND AN ASSESSEE CAN RAIS E ISSUE RELATING TO VALIDITY OF ORDER IN SECOND ROUND OF LITIGATION EVE N IF SAME WAS NOT RAISED IN FIRST ROUND - HELD, YES [EMPHASIS SUPPLIED] C) HONBLE BOMBAY HIGH COURT (FULL BENCH) IN THE CASE OF AHMEDABAD ELECTRICITY CO. LTD. [1993] 6 TAXMAN 27 HEAD NOTE SECTION 254 OF THE [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 23 INCOME-TAX ACT, 1961 - APPELLATE TRIBUNAL - POWERS OF - ASSESSMENT YEARS 1962-63 TO 1971-72 - DURING ASSESSMENT ASSESSEE DID NOT CLAIM DEDUCTION OF AMOUNTS TRANSFERRED TO 'RESERVE' AS PER ELECTRIC SUPPLY ACT, 1948, EITHER BEFORE ITO OR AAC - LATER, ON BASIS OF A HIGH COURT DECISION HOLDING SUCH AMOUNTS AS DEDUCTIBLE ON REVENUE ACCOUNT ASSESSEE C LAIMED DEDUCTION OF SAME BEFORE TRIBUNAL BY WAY OF ADDITIONAL GROUND WH ILE APPEAL WAS PENDING BEFORE TRIBUNAL - TRIBUNAL REFUSED TO PERMI T ASSESSEE TO RAISE SUCH ADDITIONAL GROUND - WHETHER PHRASE 'PASS SUCH ORDER THEREON' OCCURRING IN SECTION 254(1) CONFERS WIDEST POSSIBLE JURISDICTION ON TRIBUNAL INCLUDING JURISDICTION TO PERMIT ANY ADDITIONAL GROUND OF APPE AL IF IN ITS DISCRETION AND FOR GOOD REASONS IT THINKS IT NECESSARY AND PERMISS IBLE TO DO SO - HELD, YES - WHETHER TRIBUNAL HAD JURISDICTION TO PERMIT ADDITIO NAL GROUNDS TO BE RAISED BEFORE IT EVEN THOUGH THESE MIGHT NOT HAVE A RISEN FROM AAC'S ORDER, SO LONG AS THESE GROUNDS WERE IN RESPECT OF SUBJECT-MATTER OF ENTIRE TAX PROCEEDINGS - HELD, YES [EMPHASIS SUPPLIED] D) HONBLE GUJARAT HIGH COURT IN THE CASE OF P.V. DOSHI [1978] 113 ITR 22 HELD ............... AS THE TRIBUNAL HAD FAILED TO NOTICE THIS MATERIAL DISTINCTION BETWEEN A MERE PROCEDURAL PROVISION WHI CH COULD BE WAIVED AND SUCH JURISDICTIONAL PROVISION OR A MANDATORY PR OVISION ENACTED IN PUBLIC INTEREST WHICH COULD NOT BE WAIVED, BECAUSE BY CONSENT NO JURISDICTION COULD BE CONFERRED ON THE AUTHORITY UN LESS THE CONDITIONS PRECEDENT WERE FIRST FULFILLED. THE TRIBUNAL'S VIEW WAS CLEARLY ERRONEOUS THAT THE MATTER BECAME FINAL WHEN THE TRIBUNAL PASS ED THE EARLIER REMAND ORDER SO THAT THIS POINT OF JURISDICTION GOT FINALLY SETTLED, WHICH COULD NOT BE AGITATED UNLESS THE ASSESSEE HAD COME IN THE REFERE NCE TO THE HIGH COURT AT THIS STAGE. THE TRIBUNALS VIEW WAS ALSO INCORRECT THAT IN RESTORING THE CASE TO THE FILE OF THE ITO BY THE EARLIER ORDER, THE ON LY POINT LEFT OPEN WAS IN RESPECT OF ADDITION ON MERITS AND THAT THE LEGAL OR JURISDICTIONAL ASPECT WHETHER THE RE-ASSESSMENT PROCEEDINGS WERE LEGALLY INITIATED WAS NOT KEPT OPEN. EVEN THE TRIBUALS VIEW WAS ERRONEOUS THAT EVEN THO UGH THIS POINT WENT TO THE ROOT OF THE JURISDICTION AND WAS A PURE QUESTION OF LAW, MERELY BECAUSE THE POINT WAS INITIALLY RAISED AND NOT PRES SED WHEN THE MATTER WAS TAKEN UP BEFORE THE AAC, IT COULD BE WAIVED AND IT COULD NOT BE REAGITATED. [EMPHASIS SUPPLIED] [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 24 E) HONBLE APEX COURT IN THE CASE OF S. NELLIAPPAN [1967] 66 ITR 722 HEAD NOTE SECTION 254 OF THE INCOME-TAX ACT, 1961 [CORRESPOND ING TO SECTION 33(4) OF THE INCOME-TAX ACT, 1922] - APPELLATE TRIB UNAL - POWER OF - WHETHER IN HEARING AN APPEAL TRIBUNAL MAY GIVE LEAVE TO ASS ESSEE TO URGE GROUNDS NOT SET FORTH IN MEMORANDUM OF APPEAL, AND IN DECID ING APPEAL TRIBUNAL IS NOT RESTRICTED TO GROUNDS SET FORTH IN MEMORANDUM O F APPEAL OR TAKEN BY LEAVE OF TRIBUNAL - HELD, YES [EMPHASIS SUPPLIED] F) THE LEGAL AND JURISDICTIONAL ISSUE RAISED IN THE INS TANT ADDITIONAL GROUNDS BY THE APPELLANT WAS DEALT BY THE HONBLE DELHI HIGH COURT IN THE CASE OF KABUL CHAWLA [2016] 380 ITR 573 - PARA 2 THE ISSUE THAT THE COURT PROPOSES TO ADDRESS IN THESE APPEALS IS THE SAME TH AT WAS CONSIDERED BY THE ITAT VIZ., WHETHER THE ADDITIONS MADE TO THE INCOM E OF THE RESPONDENT ASSESSEE FOR THE SAID AYS UNDER SECTION 2(22)E OF T HE INCOME TAX ACT, 1961 (ACT) WERE NOT SUSTAINABLE BECAUSE NO INCRIMINATING MATERIAL CONCERNING SUCH ADDITIONS WERE FOUND DURING THE COURSE OF SEARCH AND FURTHER NO ASSESSMENTS FOR SUCH YEARS WERE PENDING ON THE DATE OF SEARCH? [EMPHASIS SUPPLIED] 6. THE ABOVE JUDICIAL PRECEDENTS ADEQUATELY FORTIFY THE CASE OF THE APPELLANT. ADDITION MADE TOWARDS AGRICULTURE INCOME ON LEASEHO LD AGRICULTURE LAND IN ABSENCE OF INCRIMINATING MATERIAL RELATING TO SUCH ADDITION FOUND AND SEIZED DURING THE COURSE OF SEARCH AND ALSO WITHOUT FOLLOWING THE DIRECTION GIVEN BY THE HONBLE COORDINATE BENCH TO ASCERTAIN THE LEASEHOLD AGRICULTURE LAND AND COMPUTE AGRICULTURE INCOME THE REON AFTER DEDUCTING LEASE RENT, OUGHT TO BE DELETED. SUBMITTED AUTHORISED REPRESENTATIVE [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 25 13. LD. D.R. OPPOSED THESE SUBMISSIONS AND POINTED O UT THAT EVEN IN EARLIER GROUND OF LITIGATION, THE ASSESSEE HAD TAKEN A LEGAL GROUND, WHICH WAS REJECTED BY THIS TRIBUN AL. FURTHER, LD. D.R. SUBMITTED THAT IN THE PRESENT CASE, THIS TRIBUNAL CANNOT TRAVEL BEYOND THE DIRECTIONS GIVEN VID E ORDER DATED 31.1.2013 IN IT(SS)A NO.310 TO 316/IND/2 012. 14. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. ADMITTEDLY, IN THIS CASE, ORIGINAL ASSESSMENT WAS FRAMED WAY BACK IN THE YEAR 2008. THE ISSUE OF ADDITION AND FRAMING OF THE ASSESSMENT HAD TRAVELLED UP TO THE STAGE OF THIS TRIBUNAL. THE ASSESS EE WAS HAVING SUFFICIENT TIME AND OPPORTUNITY TO RAISE THIS G ROUND. IN OUR CONSIDERED VIEW AT A SUCH BELATED STAGE, COUPLED WITH THE FACT WHERE THIS TRIBUNAL HAD SET ASIDE THE ASSESSMENT WITH CERTAIN DIRECTIONS TO THE A.O., AT THI S STAGE [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 26 IT WOULD NOT BE OPEN TO THE ASSESSEE TO AGITATE THE IS SUE OF LEGALITY OF ASSESSMENT SO FRAMED. MOREOVER, THE LEGAL GROUND WAS ALSO RAISED, WHICH WAS REJECTED BY THE TRIBUNAL. THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS, WE ARE OF THE VIEW THAT CASE LAWS AS RELIED BY THE LD. COUNSEL FOR THE ASSESSEE ARE NOT APPLICABLE TO THE FAC TS AND CIRCUMSTANCES OF THE PRESENT CASE. HENCE, THE ADDITIO NAL GROUND RAISED BY THE ASSESSEE IS REJECTED. APPEAL OF THE ASSESSEE IS DISMISSED. 15. NOW WE TAKE UP IT(SS)A NO.31/IND/2016 PERTAINING TO THE ASSESSMENT YEAR 2001-02. THE ASSESSE E HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ORDER OF THE ASS ESSING OFFICER, WHEREIN HE HAD FAILED TO FOLLOW THE DIRECTIONS CONT AINED IN THE COMBINED ORDER DATED 31.1.2013 IN APPEAL NO.310 TO 316/IND/2012 OF ITAT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE FINDING OF THE A SSESSING OFFICER THAT THE APPELLANT WAS NOT HAVING ANY LEASE HOLD LA ND WITH HIM AND [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 27 THAT HE DID NOT EARN AGRICULTURAL INCOME OF RS.4,04 ,200/- FROM SUCH LAND. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ADDITION OF RS.4 ,04,200/- TOWARDS INCOME FROM OTHER SOURCES AS MADE BY THE ASSESSING OFFICER. 4. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER AND/OR TO MODIFY THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. 16. SINCE SIMILAR GROUNDS WERE RAISED BY THE ASSESSEE IN THE APPEAL IT(SS)A NO.30/IND/2016 EXCEPT DIFFERENCE I N FIGURES, THIS APPEAL OF THE ASSESSEE IS ALSO DISMISSED BASED ON THE FINDINGS GIVEN IN PARA 14 ABOVE IN IT(SS)A NO.30/IND/2016. 17. NOW WE TAKE UP IT(SS)A NO.32/IND/2016 PERTAINING TO THE ASSESSMENT YEAR 2003-04. THE ASSESSE E HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ORDER OF THE ASS ESSING OFFICER, WHEREIN HE HAD FAILED TO FOLLOW THE DIRECTIONS CONT AINED IN THE COMBINED ORDER DATED 31.1.2013 IN APPEAL NO.310 TO 316/IND/2012 OF ITAT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE FINDING OF THE A SSESSING OFFICER [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 28 THAT THE APPELLANT WAS NOT HAVING ANY LEASE HOLD LA ND WITH HIM AND THAT HE DID NOT EARN AGRICULTURAL INCOME OF RS.4,85 ,900/- FROM SUCH LAND. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ADDITION OF RS.4 ,85,900/- TOWARDS INCOME FROM OTHER SOURCES AS MADE BY THE ASSESSING OFFICER. 4. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER AND/OR TO MODIFY THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. 18. SINCE SIMILAR GROUNDS WERE RAISED BY THE ASSESSEE IN THE APPEAL IT(SS)A NO.30/IND/2016 EXCEPT DIFFERENCE I N FIGURES, THIS APPEAL OF THE ASSESSEE IS ALSO DISMISSED BASED ON THE FINDINGS GIVEN IN PARA 14 ABOVE IN IT(SS)A NO.30/IND/2016. 19. NOW WE TAKE UP IT(SS)A NO.33/IND/2016 PERTAINING TO THE ASSESSMENT YEAR 2004-05. THE ASSESSE E HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ORDER OF THE ASS ESSING OFFICER, WHEREIN HE HAD FAILED TO FOLLOW THE DIRECTIONS CONT AINED IN THE COMBINED ORDER DATED 31.1.2013 IN APPEAL NO.310 TO 316/IND/2012 OF ITAT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE FINDING OF THE A SSESSING OFFICER THAT THE APPELLANT WAS NOT HAVING ANY LEASE HOLD LA ND WITH HIM AND THAT HE DID NOT EARN AGRICULTURAL INCOME OF RS.5,50 ,400/- FROM SUCH LAND. [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 29 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ADDITION OF RS.5 ,50,400/- TOWARDS INCOME FROM OTHER SOURCES AS MADE BY THE ASSESSING OFFICER. 4. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER AND/OR TO MODIFY THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. 20. SINCE SIMILAR GROUNDS WERE RAISED BY THE ASSESSEE IN THE APPEAL IT(SS)A NO.30/IND/2016 EXCEPT DIFFERENCE IN FIGURES, THIS APPEAL OF THE ASSESSEE IS ALSO DISMISSED BASED ON THE FINDINGS GIVEN IN PARA 14 ABOVE IN IT(SS)A NO.30/IND/2016. 21. NOW WE TAKE UP IT(SS)A NO.34/IND/2016 PERTAINING TO THE ASSESSMENT YEAR 2005-06. THE ASSESSE E HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ORDER OF THE ASS ESSING OFFICER, WHEREIN HE HAD FAILED TO FOLLOW THE DIRECTIONS CONT AINED IN THE COMBINED ORDER DATED 31.1.2013 IN APPEAL NO.310 TO 316/IND/2012 OF ITAT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE FINDING OF THE A SSESSING OFFICER THAT THE APPELLANT WAS NOT HAVING ANY LEASE HOLD LA ND WITH HIM AND THAT HE DID NOT EARN AGRICULTURAL INCOME OF RS.5,93 ,400/- FROM SUCH LAND. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ADDITION OF RS.5 ,93,400/- TOWARDS INCOME FROM OTHER SOURCES AS MADE BY THE ASSESSING OFFICER. [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 30 4. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER AND/OR TO MODIFY THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. 22. SINCE SIMILAR GROUNDS WERE RAISED BY THE ASSESSEE IN THE APPEAL IT(SS)A NO.30/IND/2016 EXCEPT DIFFERENCE I N FIGURES, THIS APPEAL OF THE ASSESSEE IS ALSO DISMISSED BASED ON THE FINDINGS GIVEN IN PARA 14 ABOVE IN IT(SS)A NO.30/IND/2016. 23. NOW WE TAKE UP IT(SS)A NO.35/IND/2016 PERTAINING TO THE ASSESSMENT YEAR 2006-07. THE ASSESSE E HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ORDER OF THE ASS ESSING OFFICER, WHEREIN HE HAD FAILED TO FOLLOW THE DIRECTIONS CONT AINED IN THE COMBINED ORDER DATED 31.1.2013 IN APPEAL NO.310 TO 316/IND/2012 OF ITAT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE FINDING OF THE A SSESSING OFFICER THAT THE APPELLANT WAS NOT HAVING ANY LEASE HOLD LA ND WITH HIM AND THAT HE DID NOT EARN AGRICULTURAL INCOME OF RS.5,93 ,400/- FROM SUCH LAND. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ADDITION OF RS.5 ,93,400/- TOWARDS INCOME FROM OTHER SOURCES AS MADE BY THE ASSESSING OFFICER. 4. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER AND/OR TO MODIFY THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 31 24. SINCE SIMILAR GROUNDS WERE RAISED BY THE ASSESSEE IN THE APPEAL IT(SS)A NO.30/IND/2016 EXCEPT DIFFERENCE I N FIGURES, THIS APPEAL OF THE ASSESSEE IS ALSO DISMISSED BASED ON THE FINDINGS GIVEN IN PARA 14 ABOVE IN IT(SS)A NO.30/IND/2016. 25. NOW WE TAKE UP IT(SS)A NO.36/IND/2016 PERTAINING TO THE ASSESSMENT YEAR 2007-08. THE ASSESSE E HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ORDER OF THE ASS ESSING OFFICER, WHEREIN HE HAD FAILED TO FOLLOW THE DIRECTIONS CONT AINED IN THE COMBINED ORDER DATED 31.1.2013 IN APPEAL NO.310 TO 316/IND/2012 OF ITAT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE FINDING OF THE A SSESSING OFFICER THAT THE APPELLANT WAS NOT HAVING ANY LEASE HOLD LA ND WITH HIM AND THAT HE DID NOT EARN AGRICULTURAL INCOME OF RS.7,86 ,930/- FROM SUCH LAND. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ADDITION OF RS.7 ,86,930/- TOWARDS INCOME FROM OTHER SOURCES AS MADE BY THE ASSESSING OFFICER. 4. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER AND/OR TO MODIFY THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 32 26. SINCE SIMILAR GROUNDS WERE RAISED BY THE ASSESSEE IN THE APPEAL IT(SS)A NO.30/IND/2016 EXCEPT DIFFERENCE I N FIGURES, THIS APPEAL OF THE ASSESSEE IS ALSO DISMISSED BASED ON THE FINDINGS GIVEN IN PARA 14 ABOVE IN IT(SS)A NO.30/IND/2016. 27. NOW WE TAKE UP THE APPEAL FILED BY MD. SHAKEEL IN IT(SS)A NO.37 TO 42/IND/2016 AGAINST DIFFERENT ORDERS OF THE LD. CIT(A) DATED 28.1.2016 & 29.2.2016 RESPECTIV ELY PERTAINING TO THE ASSESSMENT YEARS 2001-02 TO 2007-08. FIRST WE TAKE UP THE APPEAL PERTAINING TO THE ASSESSMENT YEAR 2001-02 I.E. IT(SS)A NO.37/IND/2016. THE ASSESS EE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS. 5,00,000/- TOWARDS OPENING CASH BALANCE AS ON 1.4.2000. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ORDER OF THE ASS ESSING OFFICER, WHERE HE HAD ESTIMATED THE NET PROFIT AT 8% ON THE GROSS RECEIPTS OF [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 33 RS.87,54,054/- AND IN CONFIRMING THE ADDITION OF RS .6,52,324/- AS MADE BY THE ASSESSING OFFICER. 3. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER AND/OR TO MODIFY THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. 28. THE ASSESSEE HAS ALSO FILED AN ADDITIONAL GROUNDS THAT READS AS UNDER: [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 34 29. THE FACTS IN BRIEF ARE THAT THE SECOND ROUND OF LITIGATION. IN THE EARLIER ROUND OF LITIGATION, MATTER CAME UP TO THIS TRIBUNAL AND THIS TRIBUNAL VIDE ITS ORDER DATED 31.1.2013 IN IT(SS)A NO.288 TO 294/IND/2012 WAS PLEAS ED TO RESTORE THE ASSESSMENT TO THE FILE OF THE A.O. F OR DECISION AFRESH. LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE IN THE WRITTEN SUBMISSIONS. TH E SUBMISSIONS OF THE ASSESSEE FOR ALL THE ASSESSMENT YEAR S ARE AS UNDER: FIXED FOR HEARING ON 06.02.2019 BEFORE THE HONBLE INCOME TAX APPELLATE TRIBUNAL, I NDORE BENCH, INDORE IT(SS) NO.: 37/IND/2016 TO 42/IND/2016 BY THE ASSES SEE ___________________________________________________ _____ __________ IN THE MATTER OF : MOHD. SHAKEEL, BHOPAL PAN :ARZPS3328P ASSESSMENT YEAR :2001-02 TO 2004-05, 2006-07 TO 200 7-08 STATUS :INDIVIDUAL RETURN :A.Y. 2001-02AT RS. 1,56,000 AND AGRICULTURE INCOME RS. 21,000 ON 25.09.2008 A.Y. 2002-03 AT RS. 1,57,100 AND AGRICULTURE INCOME RS. 21,000 ON 25.09.2008 [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 35 A.Y. 2003-04 AT RS. 2,01,600 AND AGRICULTURE INCOME RS. 21,000 ON 25.09.2008 A.Y. 2004-05 AT RS. 2,30,000 AND AGRICULTURE INCOME RS. 22,000 ON 25.09.2008 A.Y. 2006-07 AT RS. 2,66,728 AND AGRICULTURE INCOME RS. 82,000 ON 25.09.2008 A.Y. 2007-08 AT RS. 1,86,185 AND AGRICULTURE INCOME RS. 87,000 ON 25.09.2008 ASSESSMENT ORDER : U/S 143(3) RWS153C AND 254 DAT ED 25.03.2014 CIT(A) ORDER :DATED 28.01.2016 RELIEF IN ALL YEARS FOR ADDITION TOWARDS AGRICULTURE INCOME GRANTED AND BALANCE ADDITIONS SUSTAINED FOR ALL THE YEARS I.E. A.Y. 2001-02 TO 20 04-05, 2006-07 TO 2007-08. ___________________________________________________ _____ __________ A.Y. 2001-02 TO 2004-05 AND A.Y. 2006-07: GROUNDS OF APPEAL IN ALL THE YEARS UNDER APPEAL EXCEPT FOR A.Y. 2007-08 ARE COMMON,DIFFERENCES RELATING TO QUANTUM INVOLVED AND HENCE A COMBINED S UBMISSION IS BEING MADE WHICH MAY PLEASE BE CONSIDERED. PARTICULARS 2001-02 2002-03 2003-04 2004-05 2006-07 2007-08 ASSESSED INCOME 13,29,320 2,77,390 3,54,735 2,77,390 10,72,560 6,10,185 TOTAL ADDITION MADE 11,73,320 1,20,190 1,53,135 8,05,833 4,24,000 DETAILS OF ADDITIONS MADE OPENING CASH BALANCE 500,000 AGRICULTURE INCOME 21,000 21,000 21,000 22,000 82,000 87,000 ESTIMATION OF INCOME @ 8% 6,52,324 99,190 1,32,135 77,337 5,96,000 7,23,833 UNSECURED LOAN 3,37,000 [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 36 A.Y. 2001-02: IN ADDITION TO ABOVE MENTIONED COMMON GROUNDS OF A PPEAL, ANOTHER GROUND OF APPEAL SPECIFICALLY ONLY FOR A.Y. 2001-02 RELATES TO ADDITION OF OPENING CASH BALANCE. A.Y. 2007-08: THE ONLY GROUND OF APPEAL FOR THIS YEAR IS RELATED TO ADDITION MADE FOR UNSECURED LOANS (WHICH ARE SQUARED UP IN T HE SAME YEAR). A. ADDITIONAL GROUNDS OF APPEAL FOR ALL THE SIX YEARS UNDER APPEAL I.E. A.Y. 2001-0 2 TO 2004-05, 2006-07 TO 2007-08, ASSESSEE HAS FILED ADDITIONAL GROUNDS OF A PPEAL THROUGH A SEPARATE APPLICATION DATED 07.09.2018 WHICH ARE LEGAL GROUNDS ON FUNDAMENTAL ISSUE OF JURISDICTION GOING TO THE ROOTOF THE MATTER. ASSESSEE PRAYS THA T THESE GROUNDS OF APPEAL MAY PLEASE BE ADMITTED IN T HE INTEREST OF NATURAL JUSTICE AND PROPER ADJUDICATION OF THE MATTER. 7. INSTANT PROCEEDINGS ARE THE SECOND ROUND OF APPEAL BEFORE THE HONBLE ITAT BENCH OF INDORE AFTER THE MATTER WAS SET ASIDE BY THE HONBLE BENCH TO THE FILE OF AO VIDE ORDER PRONOUNCED ON 03.09.2012 IN APPEAL NOS. IT(SS)A 288 TO 294/IND/2012 . THE MATTER WAS SET ASIDE BY THE HONBLE BENCH OWING TO ADDITIONAL EVIDENCES FILED BY THE ASSESSEE WHICH WERE NOT CONS IDERED BY THE AUTHORITIES BELOW. WHILE SETTING ASIDE THE MATTER TO THE FILE OF LD. A O, HONBLE ITAT NOTED THE FOLLOWING FACTS IN ITS ORDER AT INTERNAL PAGE 5[PB 126] ON THE ISSUE AS TO WHY THESE DOCUMENTS COULD NOT B E FILED BEFORE THE LEARNED ASSESSING OFFICER, IT WAS EXPLAINED BY THE LEARNED COUNSEL THAT THE SEARCH TOOK PLACE ON 21.09.2006 AND NOTICE U/S 153C WAS ISSUED ON 16.09.2008 APPROXIMATELY AFTER TWO YEARS OF THE SEARCH. THE R ETURN WAS [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 37 CLAIMED TO BE FILED ON 16.09.2008. IT WAS ALSO POIN TED THAT THE QUESTIONNAIRE WAS ISSUED ON 11.10.2008 , THEREFORE, THE ASSESSMENT WAS TO BE COMPLETED BY 31.12.2008. [EMPHASIS SUPPLIED] 8. SEARCH WAS CONDUCTED IN THE CASE OF MOHD. SHAFIQUE, MOHD. ATIQUE AND SURVEY IN THE CASE OF M/S. EKTA TRANSPORT CO. CASES OF MOHD. SHAFIQUE AND MOHD. ATIQUE ARE IN APPEAL BEFORE YOUR HONORS A LONG WITH THE INSTANT CASE. 9. IN THE INSTANT CASE, THE MATTER RELATES TO FUNDAMENTAL ISSUE OF JURISDICTION AS THE IMPUGNED ASSESSMENTS FOR THE ASSESSEE WERE COMPLETED U/S 153C RWS 143(3). RECORDING OF SATISFACTION IN THE FILE OF SEARCHED P ERSON IS OF VITAL IMPORTANCE. IT IS ONLY ON THE BASIS OF SATISFACTION RECORDED IN THE CASE OF SEARCHED PERSONS THAT PROCEEDINGS U/S 153C COULD HA VE BEEN INITIATED IN THE CASE OF ASSESSEE. 10. ASSESSEE FILED A REMINDER APPLICATION FOR THE SUPPLY OF CERTIFIED TRUE COPY OF SATISFACTION RECORDED IN THE CASE OF SEARCHED PERSONS TO THE OFFICE OF LD. CIT(A) 2, BHOPAL AS WELL AS TO THE OFFICE OF LD. ACIT 3(1), BHOPAL ON 02-03 AUGUST 2018 WHICH WAS IN CONTINUATION TO THE ERSTWHILE PENDING APPLICATION DATED 16.08.2012 . [PB 55] ANOTHER REMINDER DATED 25.08.2018 WAS FILED BEFORE THE ACIT 3(1), BHOPAL FOR SUPPLY OF REQUIRED SATISFACTION RECORDED IN THE CASE OF SEARCHED PERSONS. TILL DATE, COPIES OF THE REQUIRED SATISFACTION NOTE RECORDED IN THE CASES OF SEARCHED PERSONS HAVENOTBE EN PROVIDED TO THE ASSESSEE. [COPY ANNEXED TO THIS SUBMISSION AT PAGE 16-17] ASSESSEE HAS ALSO FILED AN APPLICATION UNDER THE RIGHT TO INFORMATION ACT, 2005 (RTI) ON 17.09.2018 REQUESTING TO PROVIDE THE STATUS OF A BOVE REFERRED PENDING APPLICATIONS AND ALSO TO MAKE AVAI LABLE CERTIFIED TRUE COPY OF THE SATISFACTION NOTE RECORDED IN THE CASE OF SEARCHED PERSONS VIZ. MOHD. ATIQUE ANDMOHD.SHAFIQUE. [COPY ANNEXED TO THIS SUBMISSION AT PAGE 12] [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 38 11. AS PER THE LAW ENSHRINED IN SECTION 153C WHICH RELA TES TO ASSESSMENT OF INCOME OF ANY OTHER PERSON, IT IS THE 'SATISFACTION ' OF THE ASSESSING OFFICER OF THE PERSON SEARCHED WHICH IS SINE QUA NO N FOR ACQUIRING THE JURISDICTION U/S 153C. ONLY WHEN 'SATISFACTION' HAS BEEN RECORDED BY THE ASSESSING OFFICER OF THE PERSON SEARCHED WHO ALONE IS REQUIRED UNDER THE LAW TO RECORD SUCH SATISFACTION, EVEN THOUGH 'S ATISFACTION' HAS BEEN RECORDED BY THE LD. ASSESSING OFFICER OF THE ASSESS EE AND THEREFORE, IN TERMS OF LAW ENSHRINED IN SECTION 153C SUCH A RECOR DING OF SATISFACTION DOES NOT CLOTHE THE ASSESSING OFFICER WITH THE JURIS DICTION TO INITIATE PROCEEDINGS U/S 153C AND CONSEQUENTLY TO FRAME ANY ASSESSMENT U/S 153C RWS 143(3). IN THEINSTANTCASE,LD. AO OF THE AS SESSEE ISSUED NOTICE U/S 153C FOR THE IMPUGNED ASSESSMENT YEARS ON 16.09 .2008. IN OTHER WORDS, AT THE FIRST STAGE , THE AO OF THE PERSON WHO HAS BEEN SEARCHED MUST ARRIVE AT A SATISFACTION THAT THE ASS ETS OR DOCUMENTS SEIZED DOES NOT BELONG TO THE SEARCHED PERSON BUT T O SOME 'OTHER PERSON'; IN THE SECOND STAGE , THAT IS, AFTER SUCH SATISFACTION IS ARRIVED BY THE AO OF PERSON SEARCHED, THEN HE IS REQUIRED TO T RANSFER OR HAND OVER THE ASSETS OR DOCUMENTS TO THE AO HAVING JURISDICTIO N OVER THE 'OTHER PERSON'; AND LASTLY , THE AO OF 'OTHER PERSON' SHALL COMMENCE THE PROCEEDINGS UNDER SECTION 153C AND CONSEQUENTLY PAS S ASSESSMENT /REASSESSMENT ORDER IN THE MANNER PROVIDE U/S 153A. IF SUCH A PROCEDURE IS NOT FOLLOWED THEN NEEDLESS TO SAY THAT JURISDICTION TO PROCEED U/S 153C CANNOT BE ACQUIRED BY THE AO OF 'O THER PERSON', I.E., OTHER THAN THE PERSON SEARCHED. 12. RELIANCE IS PLACED ON FOLLOWING JUDICIAL PRECEDENCE OF THE JURISDICTIONAL HIGH COURT OF MADHYA PRADESH IN THE CASE OF MECHMEN [2015] 60 TAXMANN.COM 484 PARA 15 13. THESE ADDITIONAL GROUNDS GO TO THE ROOT OF MATTER A ND ARE VITAL TO THE DISPOSAL OF SAID APPEALS. THEIR ADMITTANCE SHALL HE LP THE ASSESSEE IN GETTING JUSTICE. RELIANCE IS PLACED ON THE FOLLOWING DECISIONS FOR ADMITTANCE OF LEGAL GROUNDS IN THE INSTANT APPEALS [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 39 D. HONBLE APEX COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD [1998] 229 ITR 383 E. HONBLE ITAT BENCH OF CHENNAI (TM) IN THE CASE OF HEMAL KNITTING INDUSTRIES [2010] 127 ITD 160 14. ASSESSEE PRAYS THAT THE ADDITIONAL GROUNDS OF APPEA L BEING LEGAL GROUNDS ON FUNDAMENTAL ISSUE OF JURISDICTION AND GO THE ROOT OF MATTER AND HENCE PLEASE BE ADMITTED FOR ADJUDICATION OF MAT TER. B. FACTS OF THE CASE: (A.Y. 2001-02 TO 2004-05, 2006-0 7 TO 2007-08) 12. ASSESSEE IS EARNING INCOME FROMTHE BUSINESS OF PLYI NG OF TRUCKS, HOUSE PROPERTY AND AGRICULTURE. FOR THE INCOME EARNED FRO M PLYING OF TRUCKS RETURNS WERE FILED U/S 44AE. 13. SEARCH AND SEIZURE OPERATIONS U/S 132 WERE CONDUCTED IN THE CASE OF MOHD. SHAFIQUE GROUP ON 21.09.2006 . NOTICE U/S 153C WAS ISSUED ON 19.05.2008 FOR THE ALL THE YEARS UNDER APPEAL. 14. ASSESSEE HAD FILED AN APPLICATION ON 16.08.2012 BEFORE LD. CIT(A) TO PROVIDE CERTIFIED TRUE COPY OF SATISFACTION RECORDED IN THE CASE OF SEARCHED PERSONS BEFORE ISSUE OF NOTICE U/S 153C. REMINDER APPLICATIONS WERE AGAIN FILED ON 02.08.2018 AND 25.08.2018 . IT WAS ONLY AFTER SUCH A CONTINUOUS AND RIGOURS FOL LOW UP THAT CERTIFIED COPY OF SATISFACTION NOTE RECORDED BY AO IN THE CASE OF ASSESSEE I.E. MOHD. SHAKEEL WAS PROVIDED THROUGH LE TTER DATED 18.12.2018. APPLICATION UNDER RTI WAS FILED ON 17.0 9.2018 WHICH IS ALSO PENDING FOR DISPOSAL IN THIS RESPECT. [PB 55& ANNEXURE TO THIS SUBMISSION AT PAGE 21-22] 15. ON PERUSAL OF THE CERTIFIED COPY OF SATISFACTION NO TE FOLLOWING IS EVIDENT A. HEADING MOHD. SHAKEEL [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 40 B. START OF THE SATISFACTION NOTE ....DOCUMENTS SEIZED OR REQUISITIONED BELONGS OR BELONG TO THE ASSESSEE I.E. MOHD. SHAKEEL C. TOWARDS THE END OF SATISFACTION NOTE THEREFORE THE PROCEEDINGS U/S 153C AGAINST THE ASSESSEE IS INITIATED AND HIS INCOME IS ASSESSED OR RE-ASSESSED IN ACCORDING TO THE PROVISIONS OF SE CTION 153A. ALL THE ABOVE NOTED POINTS AS EVIDENT FROM THE CERT IFIED COPY OF SATISFACTION NOTE RECORDED BY AO IN THE CASE OF ASS ESSEE I.E. MOHDSHAKEELCONCLUDE THAT THE SATISFACTION NOTE PROV IDED IS FROM THE FILE OF ASSESSEE AND NOT FROM THE FILE OF SEARCHED PERSO NS I.E. MOHD. ATIQUE AND MOHD.SHAFIQUE. 16. DURING THE PROCEEDINGS BOTH IN THE FIRST ROUND AND IN THE INSTANT SECOND ROUND, THE DOCUMENTS REFERRED FOR MAKING ADDITION B Y REJECTING THE INCOME OFFERED U/S 44AE ARE NOT RELATED TO THE ASSE SSEE. THESE DOCUMENTS ARE OF BOMBAY TRANSPORT COMPANY (PROP. NA VEDBHAI). THUS, NO REFERENCE HASBEEN MADE BY LD. AO TO ANY INCRIMINATING MATERIAL FOUND DURING THE SEARCH OF MOHD. ATIQUE AND MOHD. SHAFIQ UE, WHICH BELONGS TO THE ASSESSEE ON THE BASIS OF WHICH ADDITION ISMADE BEEN MADE IN ALL THE IMPUGNED YEARS. IN THE SET ASIDE PR OCEEDINGS, LD. AO SUSTAINED THE ADDITIONS MADE BY THE THEN LD. AO FOR ALL THE YEARS UNDER CONSIDERATION. 17. FURTHER, FOR A.Y. 2004-05 AND A.Y. 2006-07 : BOMBAY TRANSPORT COMPANY (PROP. NAVEDBHAI) HAD ENTERED INTO TRANSPORT CONTRA CT WITH M.P. STATE CIVIL SUPPLIES CORPORATION LIMITED, RECEIPTS OF WHI CH AMOUNT TO RS. 74,50,000 AND RS. 90,47,916 RESPECTIVELY. LD. AO AP PLYING THE PROVISIONS OF SECTION 292C MADE AN ADDITION OF @ 8% ON TOTAL C ONTRACT RECEIPTS WHICH AMOUNTS TO RS. 5,96,000 AND RS. 7,23,833 RESP ECTIVELY. THIS TRANSPORT CONTRACT IS IN THE NAME OF BOMBAY TRANSPO RT COMPANY (PROP. NAVEDBHAI).M.P. STATE CIVIL SUPPLIES CORPORATION LI MITED CONFIRMED THAT IT HAS MADE PAYMENTS TO BOMBAY TRANSPORT COMPANY. [PB 99,107] 18. LD. AO TOOK THE DEPOSITS IN THE BANK ACCOUNTS OF MO HD. SHAFIQUE AND CO. FOR THE PURPOSE OF APPLYING NP RATE OF 8% TO AR RIVE AT ADDITION OF INCOME IN THE HANDS OF THE ASSESSEE. IMPORTANT FACT IS THAT MOHD. [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 41 SHAFIQUE AND CO. IS A PROPRIETARY CONCERN OF FATHER OF THE ASSESSEE VIZ. MOHD. SHAFIQUE IN WHOSE CASE SEARCH WAS CONDUCTED A ND ASSESSMENT WAS MADE U/S 153A. IN HIS ASSESSMENTS, DEPOSITS IN THE BANK ACCOUNTS OF MOHD. SHAFIQUE AND CO. HAVE BEEN CONSIDERED FOR APP LYING THE 8% NP RATE AND MAKING THE RESPECTIVE ASSESSMENTS. 19. ASSESSEE IS IN SECOND ROUND OF APPEAL BEFORE THE HO NBLE ITAT INDORE BENCH AFTER THE MATTER WAS SET ASIDE TO THE FILE OF LD. AO VIDE ORDER PRONOUNCED ON 03.09.2012 IN APPEAL NUMBERS IT(SS)A 288 TO 294/IND/2012 . 20. IN THE FIRST ROUND OF PROCEEDINGS BEFORE LD. AO, AS SESSEE SUBMITTED STATEMENT OF AFFAIRS AS AT 31 ST MARCH 2000 AND STATEMENT OF AFFAIRS AND RECEIPTS AND PAYMENT ACCOUNT AS AT 31 ST MARCH 2001 TO EXPLAIN THE OPENING CASH BALANCE OF RS. 5,00,000. ALSO,RETURN F ILED U/S 44AE FOR PLYING OF TRUCKS WAS NOT ACCEPTED BY STATING THAT B OOKS OF ACCOUNTS ARE NOT MAINTAINED AND PRODUCED BILLS AND VOUCHERS OF E XPENSES ARE ALSO NOT PRODUCED. THEREFORE, A RATE OF 8% WAS APPLIED O N THE RECEIPTS APPEARING IN BANK ACCOUNT FOR A.Y. 2001-02 TO 2004- 05 AND 2006-07 AND ADDITIONSWERE MADE TO RETURNED INCOME OF EACH YEAR. FOR THE ADDITION MADE U/S 68 OF RS. 3,37,000 IN A.Y. 2007-08, IT WAS SUBMITTED THAT THE LOAN WAS AVAILED AND REPAID IN THE SAME YEAR.LD. AO ERRED IN NOT CONSIDERING THE FACTS AND THE AVAILABLE DOCUMENTS I N PROPER PERSPECTIVE. [PB 69-113] 21. IN THE FIRST ROUND OF PROCEEDINGS BEFORE LD. CIT(A) , THE ADDITIONS AS MADE BY LD. AO WERE SUSTAINED. ON APPEAL BEFORE HON BLE INDORE BENCH OF ITAT, THE MATTER WAS SET ASIDE TO THE FILE OF LD . AO. [PB 114-123, 124- 129] 22. IN THE REMAND PROCEEDINGS, ADDITION MADE ON ACCOUNT OF AGRICULTURE INCOME FOR EACH OF THE YEAR UNDER APPEAL WERE DELET ED BY LD. CIT(A) BY APPLYING THE FINDINGS GIVEN BY THE HONBLE BENCH TO CONSIDER AGRICULTURE INCOME @ RS. 6,000 PER BIGHAAND THE REMAINING ADDIT IONS WERE SUSTAINED. [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 42 23. AGGRIEVED, ASSESSEE IS IN APPEAL BEFORE YOUR HONORS . SUBMISSION:(A.Y. 2001-02 TO 2004-05, 2006-07 TO 200 7-08) 1. ASSESSEE HAD FILED AN APPLICATION ON 16.08.2012 BEFORE LD. CIT(A) TO PROVIDE CERTIFIED TRUE COPY OF SATISFACTION RECORDED IN THE CASE OF SEARCHED PERSONS BEFORE ISSUE OF NOTICE U/S 153C. REMINDER APPLICATIONS WERE AGAIN FILED ON 02.08.2018 AND 25.08.2018 . IT WAS ONLY AFTER SUCH A CONTINUOUS AND RIGOURS FOL LOW UP THAT CERTIFIED COPY OF SATISFACTION NOTE RECORDED BY AO IN THE CASE OF ASSESSEE I.E. MOHD. SHAKEEL WAS PROVIDED THROUGH LE TTER DATED 18.12.2018. APPLICATION UNDER RTI WAS FILED ON 17.0 9.2018 WHICH IS ALSO PENDING FOR DISPOSAL IN THIS RESPECT. [PB 55& ANNEXURE TO THIS SUBMISSION] 2. ON PERUSAL OF THE CERTIFIED COPY OF SATISFACTION NO TE FOLLOWING IS EVIDENT A. HEADING MOHD. SHAKEEL B. START OF THE SATISFACTION NOTE ....DOCUMENTS SEIZED OR REQUISITIONED BELONGS OR BELONG TO THE ASSESSEE I.E. MOHD. SHAKEEL C. TOWARDS THE END OF SATISFACTION NOTE THEREFORE THE PROCEEDINGS U/S 153C AGAINST THE ASSESSEE IS INITIATED AND HIS INCOME IS ASSESSED OR RE-ASSESSED IN ACCORDING TO THE PROVISIONS OF SE CTION 153A. 3. ALL THE ABOVE NOTED POINTS AS EVIDENT FROM THE CERT IFIED COPY OF SATISFACTION NOTE RECORDED BY AO IN THE CASE OF ASS ESSEE I.E. MOHDSHAKEEL CONCLUDE THAT THE SATISFACTION NOTE PRO VIDED IS FROM THE FILE OF ASSESSEE AND NOT FROM THE FILE OF SEARCHED PERSONS I.E. MOHD. ATIQUE AND MOHD. SHAFIQUE. 4. FOR INVOKING PROVISIONS OF SECTION 153C OF THE ACT, RECORDING OF SATISFACTION IS A MUST BY A. THE AO OF THE SEARCHED PERSON AND [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 43 B. THE AO OF THE PERSON WHOSE DOCUMENTS ARE FOUND IN T HE SEARCH CONDUCTED OF THE PERSON REFERRED IN (A) ABOVE. 5. IT IS A WELL SETTLED LAW THAT THE SATISFACTION HAS TO BE RECORDED BY BOTH ASSESSING OFFICERS, NAMELY OF THE SEARCHED PERSON A ND OF THE PERSON WHOSE DOCUMENTS ARE FOUND IN THE COURSE OF SEARCH. THIS POSITION IN LAW HOLDS GOOD EVEN IN A CASE WHERE AO IS COMMON, BOTH FOR THE SEARCHED PERSON AND THE OTHER PERSON. 6. RELIANCE IS PLACED ON THE FOLLOWING JUDICIAL PRECEDE NTS A. HONBLE JURISDICTIONAL HIGH COURT OF MADHYA PRADESH IN THE CASE OF MECHMEN [2015] 60 TAXMANN.COM 484 ORDER PRONOUNCED ON 10.07.2015 PARA 15 EVEN FOR THE PURPOSE OF SECTION 153C, THE ASSESSING OFFICER BEFORE HANDING OVER THE ITEMS TO THE ASSESSING OFFICER HAVING JURISDICTION MUST BE 'SATISFIED' THAT THE ITEMS BELONGS OR BELONG TO THE PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A. THAT SATISFACTION OF THE CONCERNED ASSESSING OFFICER IS A SINE QUA NON. THE CONSEQUENCES FLOWING FROM THE ACTION TO BE TAKEN ON THE BASIS OF SUCH INFORMA TION HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION, FOR THE ASSE SSEE, WHO IS A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A, IS DRA STIC OF ASSESSMENT OR REASSESSMENT OF HIS INCOME FALLING WITHIN SIX ASSES SMENT YEARS. [EMPHASIS SUPPLIED] B. HONBLE BOMBAY HIGH COURT IN THE CASE OF INGRAM MICRO (INDIA) EXPORTS (P.) LTD [2015] 60 TAXMANN.COM 57 ORDER PRONOUNCED ON 29.04.2015 HELD PARA 4 C. HONBLE INDORE BENCH OF ITAT IN THE CASE OF AMITPANDE IT(SS)A NO. 88 AND 90 TO 94/IND/2008 ORDER PRONOUNCED ON 28.07.2011 INTERNAL PAGE 27 IN THE INSTANT CASE, ASSESSEE HAS RAISED ADDITIONAL GROUND IN ALL THE YEARS UNDER APPEAL CHALLENGING THE VALIDITY OF THE ASSESSMENTS MADE BY INVOKING SECTION 153C OF THE ACT. [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 44 7. WITHOUT PREJUDICE TO ADDITIONAL GROUND IN ALL THE YE ARS UNDER APPEAL CHALLENGING THE VALIDITY OF THE ASSESSMENTS MADE BY INVOKING SECTION 153C A. PARA 2 OF ASSESSMENT ORDER FOR A.Y. 2001-02 DATED 31.12.2008 [PB 72] ASSESSEE HAS SHOWN OPENING CASH BALANCE OF RS. 5,00 ,000/- DURING THE ASSESSMENT PROCEEDINGS IN THE ORDER SHEET ENTRY DAT ED 14.10.2008 ASSESSEE WAS ASKED TO SUPPORT ABOVE OPEN ING CASH BALANCE WITH SUPPORTING EVIDENCE .. B. FOR A.Y. 2001-02 TO 2004-05 , LD. AO HAS STATED AS UNDER FOR THE ADDITION MADE BY ESTIMATING INCOME @ 8% VIDE ORDER DATED 31.12.2008 [PB 73, 79, 91, 97] IN THE ORDER SHEET ENTRY DATED 05.12.2008 ASSESSEE WAS ASKED TO FURNISH FOLLOWING DETAIL: DURING THE YEAR UNDER CONSIDERATION FOLLOWING AMOUN T HAS BEEN RECEIVED IN THE BANK A/C. OF MOHD. SHAFIQUE AND CO. DEPOSITS TOTAL DEPOSITS IN BANK OF INDIA SAFIA COLLEGE STATE BANK OF INDIA TT NAGAR A.Y. 2001-02 - 87,54,054 A.Y. 2002-03 6,000 18,33,879 A.Y. 2003-04 2,36,000 24,65,691 A.Y. 2004-05 3,16,010 17,00,714 A.Y. 2006-07 95,562 2,07,587 A.Y. 2007-08 1,00,000 - KINDLY GIVE THE DETAILS OF ALL ABOVE CREDITS IN YOU R BOOKS OF ACCOUNTS. C. FOR A.Y. 2004-05 AND 2006-07 , LD. AO HAS STATED AS UNDER FOR ESTIMATING INCOME @ 8% - [PB 99 AND 107] [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 45 INFORMATION WERE CALLED FROM M.P. STATE CIVIL SUPP LIES CORPN. LTD. WERE IN THE F.Y. 2003-04 & 2005-06, CON TRACT PAYMENT OF RS. 74,50,000/- &RS. 90,47,916/- WERE MADE TO BOMBA Y TRANSPORT COMPANY. THEREFORE, IN ABSENCE OF BOOKS OF ACCOUNTS 8% OF ABOVE RECEIPTS WILL BE TAXABLE IN THE HANDS OF ASSESSEE .. D. PARA 2 OF ASSESSMENT ORDER FOR A.Y. 2007-08 DATED 31.12.2008 [PB 112] IN THE RELEVANT ASSESSMENT YEAR ASSESSEE HAS SHOWN UNSECURED LOANS OF RS. 17,000/- FROM SAAD ABDULLAH. IN THE ORDER SHEET ENTRY DATED 24.10.2008 ASSESSEE WAS ASKED TO FURNISH BANK STATEMENT OF SAAD ABDULLAH AND ALSO HIS RETURN OF I NCOME AND PHYSICAL PRODUCTION IS SOUGHT.. E. PARA 3 OF ASSESSMENT ORDER FOR A.Y. 2007-08 DATED 31.12.2008 [PB 112] IN THE RELEVANT ASSESSMENT YEAR ASSESSEE HAS SHOWN ADVANCES FROM FOLLOWING PERSONS: S.NO. NAME OF PERSON AMOUNT RECEIVED SQUARED UP DURING THE YEAR 01 MEMBOOB KHAN 1,00,000/- YES 02 RASHID VAHID 1,00,000/- YES 03 S. MAHMOOD ALI 1,20,000/ - YES IN THE ORDER SHEET ENTRY DATED 10.12.2008 ASSESSEE WAS ASKED TO FURNISH BANK STATEMENT OF MEMBOOB KHAN, RASHID V AHID& S. MAHMOOD ALI AND ALSO HIS RETURN OF INCOME AND PHYSI CAL PRODUCTION IS SOUGHT. IT IS EVIDENT FROM ABOVE THAT LD. AO IN THE FIRST R OUND OF PROCEEDINGS HAS NOT REFERRED TO ANY INCRIMINATING M ATERIAL FOUND DURING [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 46 THE COURSE OF SEARCH IN THE CASE OF MOHD. ATIQUE AN D MOHD.SHAFIQUE, WHICH BELONGEDTO THE ASSESSEE. IN SEARCH ASSESSMENTS, ANY UNDISCLOSED INCOME, WHIC H CAN ULTIMATELY BE ADDED, IS ONLY TO THE EXTENT OF ANY UNDISCLOSED INC OME EARNED, REPRESENTED BY ANY INCRIMINATING DOCUMENTS/MATERIAL FOUND DURING THE COURSE OF SEARCH PROCEEDINGS. 8. LD. CIT(A) IN FIRST ROUND OF PROCEEDINGS VIDE ORDER DATED 21.03.2012 HAS ALSO MADE NO REFERENCE TO ANY INCRIMINATING MATERIA L FOUND DURING THE SEARCH AND SEIZURE OPERATIONS CARRIED OUT IN THE CA SE OF MOHD. ATIQUE AND MOHD. SHAFIQUE. [PARA 6.3, 7.1 AND 7.2 PB 119, PARA 8.1 - PB 120, PARA 10.2 PB 123] 9. IN THE SET ASIDE PROCEEDINGS ALSO, LD. AO HAS NOT M ADE ANY REFERENCE TO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH OPERATIONS IN THE CASE OF MOHD. ATIQUE AND MOHD. SHAFIQUE WHICH I S BELONGED TOTHE ASSESSEE. A. ASSESSMENT ORDER DATED 25.03.2014 PAGE 2 PARA 5 .. NOTICE U/S 142(1) OF INCOME TAX ACT, 1961 DATED 13.03.2014 WAS ALSO SERVED UPON THE ASSESSEE BY THE NOTICE SE RVER AND FOLLOWING QUERIES WERE RAISED :- THE RESPECTIVE QUERIES ARE AS UNDER:- 2. PLEASE FURNISH THE SOURCES OF OPENING CASH BALANCE OF RS. 5,00,000/- WITH DOCUMENTARY EVIDENCES WHICH ARE AVAILABLE WITH YOU DURING A.Y. 2001-02. 3. PLEASE FURNISH THE PROOF OF IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE ADVANCES OF RS. 3,20,000/- AS APPEARING IN YOUR BOOKS OF ACCOUNTS FOR A.Y. 2007-08 ABOVE MENTIONED EXTRACTS FROM ORDERS OF LD. AO AND LD. CIT(A) DURING THE SET ASIDE PROCEEDINGS FURTHER CORROBORAT E THE FACT THAT NO REFERENCE HAS BEEN MADE TO ANY INCRIMINATING MATERI AL FOUND DURING SEARCH AND SEIZURE OPERATIONS CARRIED IN THE CASE O F MOHD. ATIQUE ANDMOHD.SHAFIQUE. DETAILS SOUGHT BY THE LD. AO ARE FROM THE BOOKS OF ACCOUNT OF THE ASSESSEE. [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 47 10. RELIANCE IS PLACED ON FOLLOWING JUDICIAL PRECEDENTS OF THE HONBLE INDORE BENCH OF ITAT - NO ADDITION WARRANTED IN ABSENCE OF INCRIMINAT ING MATERIAL A. KAMAL KISHORE KOTWANI IT(SS)A NO. 186 TO 190/IND/2016 DATED 04.07.2018 B. KAMTA PRASAD DWIVEDI IT(SS)A NO. 183 TO 185/IND/2016 DATED 19.09.2018 C. JAY DEE SECURITIES & FINANCE LTD 88 TAXMANN.COM 626 (DELHI- TRIB.) DATED 17.04.2017 11. FIRSTPROVISO TO SECTION 153C READS PROVIDED THAT IN CASE OF SUCH OTHER PERSON, THE RE FERENCE TO THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132 OR MAKING OF REQUISITION UNDER SECTION 132A IN THE SECOND PROVISO TO SUB-SECTION (1) OF SECTION 153A SHALL BE CONSTRUED AS REFERENCE TO THE DATE OF RECE IVING THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON : IN THE INSTANT CASE, SEARCH IN THE CASE OF MOHD.ATI QUE ANDMOHD.SHAFIQUE WAS CONDUCTED ON 21.09.2006. NOTIC E U/S 153C WAS ISSUED TO ASSESSEE ON 19.05.2008. CONSIDERING THE D ATE OF ISSUE OF NOTICE U/S 153C AS DATE ON WHICH RELEVANT DOCUMENTS OR BOO KS OF ACCOUNTS OR ASSETS SEIZED OR REQUISITIONED WERE HANDED OVER BY THE AO OF SEARCHED PERSONS TO AO HAVING JURISDICTION OVER ASSESSEE, THE RELEVANT SIX ASSESSMENT YEARS ARE AS UNDER YEAR NO. A.Y. ABATED/UNABATED YEAR YEAR UNDER APPEAL ADDITION MADE 9 2009-10 N.A. NA NO ASSESSMENT [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 48 8 2008-09 N.A. NA NO ASSESSMENT 7 2007-08 UNABATED YES 3,37,000 6 2006-07 UNABATED YES 7,23,833 5 2005-06 UNABATED NO - 4 2004-05 UNABATED YES 6,73,337 3 200 3-04 UNABATED YES 1,32,135 2 2002-03 OUT OF PURVIEW OF ASSESSMENTS AS PER PROVISO TO SECTION 153C YES 99,190 1 2001-02 YES 11,52,324 12. RELIANCE IS PLACED ON FOLLOWING JUDICIAL PRECEDENT W HEREIN IT IS ESTABLISHED THAT THE SIX ASSESSMENT YEARS SHALL BE CALCULATED FROM THE DATE OF ISSUE OF NOTICE U/S 153C - HONBLE DELHI HIGH COURT IN THE CASE OF SARWAR AGENCY (P.) LTD [2017] 85 TAXMANN.COM 269 ORDER PRONOUNCED ON 17.08.2017 13. FURTHER, ONCE THE FACTUM OF ABSENCE OF RECORDING SA TISFACTION IN THE CASE OF SEARCHED PERSONS FOR INVOKING PROVISIONS OF SECT ION 153C, IS ACCEPTED, THE ENTIRE PROCEEDINGS INVOKED U/S 153C FOR ALL THE SEVEN YEARS WILL STAND INVALID AND BAD IN LAW IRRESPECTIVE OF THE FA CT WHETHER THE COVERED YEARS GOT ABATED OR NOT. 14. WITHOUT PREJUDICE TO ABOVE , ASSESSEE SUBMITS THAT STATEMENT OF AFFAIRS AS ON 31 ST MARCH 2000 AND 31 ST MARCH 2001 WERE SUBMITTED BEFORE LD. AO DURING THE FIRST ROUND OF PROCEEDINGS. IT WAS AL SO SUBMITTED THAT THE BUSINESS OF TRANSPORTATION IS BEING CARRIED ON BY H IM SINCE THE YEAR [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 49 1991. IN ADDITION TO THIS HE IS ALSO EARNING AGRICU LTURAL INCOME. THE FACT THAT ASSESSEE IS RESIDING WITH HIS PARENTS CANNOT B E IGNORED. THE ALLEGATION OF LD. AO THAT THE DOCUMENTARY EVIDE NCES SUBMITTED WERE PREPARED AFTER SEARCH IS VAGUE. LD. AO ALSO FAILED TO BRING ON RECORD ANY MATERIAL TO NEGATE THE EVIDENCE S THAT SUPPORT AVAILABILITY OF OPENING CASH BALANCE. THUS, THE PRE MISE OF LD. AO TO MAKE THE ADDITION IS BASED ON SURMISES AND CONJECTUR ES. [PB 119, 28] 15. REFERENCE MAY PLEASE BE MADE TO THE ORDER OF HONBLE INDORE BENCH OF ITAT IN THE CASE OF MOHD. SHAFIQUE IT(SS)A NO. 295 TO 299/IND/2012 ORDER PRONOUNCED ON 31.01.2013 PARA 43 AS DISCUSSED HEREINABOVE, THE ASSESSEE HAD AGRICULTURAL LAND SIN CE 40 YEARS AND ALSO HAVING SUBSTANTIAL INCOME FROM OPERATION OF TRUCKS. THE ASSESSEE WAS ALSO HAVING INCOME FROM HOUSE PROPERTY SINCE LAST M ANY YEARS. EVEN THOUGH THE ASSESSING OFFICER HAS NOT ACCEPTED THE I NCOME FROM HOUSE PROPERTY BUT THE SAME WAS ASSESSED AS INCOME FROM O THER SOURCES BY DECLINING DEDUCTION CLAIMED U/S 24 BUT THE FACT REM AINS THAT THE ASSESSEE HAS DECLARED INCOME WHICH WAS ASSESSED BY THE ASSESSING OFFICER UNDER DIFFERENT HEADS. ALL THESE FACTS INDI CATE THAT THE ASSESSEE COULD HAVE CASH IN HAND OF RS. 5 LACS AS ON 1. 4.20 01. ACCORDINGLY, THE ASSESSING OFFICER IS DIRECTED TO DELETE THE ADDITIO N OF RS. 5 LACS AS OPENING CASH BALANCE. [EMPHASIS SUPPLIED] [PB 39] FINDING GIVEN BY THE HONBLE BENCH IN THE CASE OF F ATHER OF THE ASSESSEE IN HIS SEARCH ASSESSMENT FINDS A DIRECT AP PLICATION IN THE CASE OF THE ASSESSEE HIMSELF ALSO. IN THE INSTANT CASE, ASSESSEE IS EARNING INCOME FRO M BUSINESS OF TRANSPORTATION SINCE THE YEAR 1991. APART FROM THIS ASSESSEE IS ALSO EARNING INCOME FROM AGRICULTURAL ACTIVITY. TO SUBST ANTIATE HIS CLAIM STATEMENT OF AFFAIRS AS ON 31 ST MARCH 2000 AND 31 ST MARCH 2001 WERE SUBMITTED BEFORE LD. AO DURING THE FIRST ROUND OF P ROCEEDINGS. ACCORDINGLY, ADDITION MADE TOWARDS OPENING CASH BAL ANCE OUGHT TO BE DELETED. [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 50 16. FOR THE ADDITIONS MADE ON THE BASIS THAT NO BOOKS A RE MAINTAINED AND BILLS AND VOUCHERS OF EXPENSES WERE NOT PRODUCED, T HE INCOME WAS ESTIMATED BY LD. AO @ 8% ON THE DEPOSITS IN BANK AC COUNTS OF MOHD. SHAFIQUE AND CO WHICH IN FACT IS THE PROPRIETARY CO NCERN OF HIS FATHER IN WHOSE ASSESSMENT THE SAME HAVE BEEN CONSIDERED FOR MAKING ADDITIONS ON SIMILAR FOOTING. LD. AO GROSSLY ERRED IN TAKING DEPOSITS IN THE ACCO UNT OF CONCERN OF FATHER OF THE ASSESSEE FOR THE PURPOSE OF APPLYI NG NP RATE OF 8% AND MAKING ADDITIONS IN THE HANDS OF THE ASSESSEE U/S 1 53C RWS 143(3). 17. THE DOCUMENTS ON THE BASIS OF WHICH ADDITION IS MAD E ARE RELATED TO BOMBAY TRANSPORT COMPANY WHO HAD ENTERED INTO A TRA NSPORT CONTRACT WITH M.P. STATE CIVIL SUPPLIES CORPORATION LIMITED. THE INCOME FROM THIS CONTRACT IS EARNED BY BOMBAY TRANSPORT COMPANY. ASS ESSEE HAS SUPPLIED ITS TRUCKS ON HIRE TO BOMBAY TRANSPORT COM PANY AS NOTED BY THE LD. WHILE DEALING THIS ISSUE IN THE ORDER. 18. AGAIN WITHOUT PREJUDICE , NO ADVERSE PRESUMPTION EITHER UNDER SECTION 132(4A) OR SECTION 292C COULD BE DRAWN AGAINST THE ASSESSEE, HE NOT BEING THEPERSON SEARCHED. RELIANCE IS PLACED ON THE DECISION OF THE HONBLE HIGH COURT OF DELHI IN THE CAASE OF CIT VS. ANIL KHANDELWAL [2015] 93 CCH 0042 (DEL.) INCLUDING FOLLOWING OTHER JUDICIAL PRONOUNCEMENTS A) SMT. BOMMANASWARNAREKHA VS. ACIT (2005) TTJ 885 (VISAKHA) B) STRAPTEX (INDIA) (P) LTD. VS. DCIT (2003) 79 TTJ 228 (MUM) C) RAMA TRADERS VS. FIRST ITO (1988) 32 TTJ 483 (PA T) D) JAYA S. SHETTY VS. ACIT (1999) 64 TTJ 551 (MUM) E) ASHWANI KUMAR VS. ITO (1992) 42 TTJ 644 (DEL) F) SHETHAKSHAYPUSHPAVADAN VS. DCIT (2010) 130 TTJ 4 2 (AHD) (UO) G) ACIT VS. KISHORE LALBALWANTRAI&ORS. (2007) 17 SO T 380 (CHD) IT IS SUBMITTED THAT BY ANY STRETCH OF IMAGINATION, THE ASSESSEE CANNOT BE PUT TO SHOULDER THE RESPONSIBILITY OF A D OCUMENT, IF ANY , [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 51 WHICH WAS NOT FOUND IN ITS CONTROL OR POSSESSION, O R FOR THAT MATTER, IT WAS NOT PREPARED BY IT OR BY ANYONE ON HISINSTRUCTI ONS.UNDER THE PROVISIONS OF SECTION 292C OF THE ACT, IF ANY MATERIAL BELONGING TO THE ASSESSEE WAS FOUND AND SEIZED FROM THE PERSONS SEAR CHED, THESE OUGHT TO BE PRESUMED TO BE BELONGING TO THE SEARCHED PERS ON ONLY. 19. LD. AO ASKED THE ASSESSEE TO FURNISH DETAILS OF AMO UNT RECEIVED IN BANK ACCOUNT OF MOHD. SHAFIQUE AND CO . ASSESSEE SUBMITS THAT MOHD. SHAFIQUE AND CO. IS THE PROPRIETORSHIP CONCERN OF M OHD. SHAFIQUE, FATHER OF THE ASSESSEE. THIS FACT IS ALSO STATED BY MOHD. SHAFIQUE IN HIS STATEMENT RECORDED U/S 132 ON 26.09.2006 IN RESPONS E TO Q.8. [PB 64] 20. FOR THE ADDITIONS MADE IN A.Y. 2007-08 : PARA 3 OF THE ASSESSMENT ORDER DATED 31.12.2008 [ PB 112] IN THE RELEVANT ASSESSMENT YEAR ASSESSEE HAS SHOWN ADVANCES FROM FOLLOWING PERSONS: S.NO. NAME OF PERSON AMOUNT RECEIVED SQUARED UP DURING THE YEAR 01 MEMBOOB KHAN 1,00,000/- YES 02 RASHID VAHID 1,00,000/- YES 03 S.MAHMOOD ALI 1,20,000/- YES IN THE ORDER SHEET ENTRY DATED 10.12.2008 ASSESSEE WAS ASKED TO FURNISH BANK STATEMENT BANK STATEMENT WAS SUBMITTED BEFORE LD. AO DURING T HE FIRST ROUND OF PROCEEDINGS. REFERRING TO THIS STATEMENT, IT IS EVI DENT THAT AMOUNT RECEIVED FROM THE ABOVE MENTIONED THREE PERSONS WAS RETURNED THROUGH BANKING CHANNEL. DETAILS OF WHICH ARE AS UNDER - [PB 46, 50, 51, 52] SR.NO. NAME OF PERSON DATE OF REPAYMENT INSTRUMENT NO. AMOUNT REPAID (RS.) 1 MEMBOOB KHAN 06.02.2007 [PB 52] 268100 1,00,000 2 RASHID VAHID 27.12.2006 [PB 51] 268096 50,000 2 RASHID VAHID 27.12.2006 268095 50,000 [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 52 21. ASSESSEE SUBMITS THAT THESE AMOUNTS WERE RECEIVED B Y HIM IN THE IMPUGNED YEAR A.Y. 2007-08 AND WERE ALSO REPAID IN THE SAME YEAR. THIS FACT IS EVIDENT FROM STATEMENT OF AFFAIRS AS ON 31 ST MARCH 2006 IN WHICH THERE IS NO AMOUNTING OUTSTANDING AS PAYABLE TO ANY OF THE ABOVE MENTIONED PERSONS. ACCORDINGLY, IT IS PRAYED THAT N O ADDITION IS CALLED FOR U/S 68. [PB 50] CONSIDERING THE ABOVE FACTS, CIRCUMSTANCES OF THE C ASE, SUBMISSIONS MADE, DOCUMENTS ON RECORD AND JUDICIAL PRECEDENCE, APPEAL OF THE ASSESSEE OUGHT TO BE ALLOWED BY DELETING ADDITIONS IN RESPECTIVE YEARS. SUBMITTED AUTHORISED REPRESENTATIVE FIXED FOR HEARING ON 14.02.2019 BEFORE THE HONBLE INCOME TAX APPELLATE TRIBUNAL, I NDORE BENCH, INDORE IT(SS)A NO.: 37/IND/2016TO42/IND/2016 BY THE ASSESS EE IN THE MATTER OF : MOHD. SHAKEEL, BHOPAL PAN :ARZPS3328P ASSESSMENT YEAR :2001-02 TO 2004-05, 2006-07 AND 20 07-08 STATUS : INDIVIDUAL ___________________________________________________ ________________ MAY IT PLEASE YOUR HONORS, [PB 51] 3 S. MAHMOOD ALI 26.06.2006 [PB 50] 268093 1,20,000 [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 53 IN THE COURSE OF HEARING HELD ON 06.02.2019, HONBL E BENCH WAS KIND IN GIVING AN OPPORTUNITY TO THE LD. CIT(DR) TO MAKE HE R SUBMISSION ON THE CASE LAWS RELATING TO THE ADDITIONAL GROUNDS FILED BY TH E ASSESSEE. 2. A WRITTEN SUBMISSION ON THE ADDITIONAL GROUNDS ALON G WITH RELEVANT JUDICIAL DECISIONS IS ALREADY ON RECORD. THIS FURTHER SUBMISSION MAY PLEASE BE CONSIDERED IN CONTINUATION TO THE EARLIER SUBMISSIO N ALREADY ON RECORD WHICH SPECIFICALLY DEALS WITH ADMISSION OF ADDITION AL GROUND CHALLENGING THE LEGAL AND JURISDICTIONAL ISSUE FOR THE FIRST TI ME IN THE SECOND ROUND OF APPELLATE PROCEEDINGS BEFORE THE TRIBUNAL. 3. ASSESSEE VIDE APPLICATION DATED 04.09.2018 FILED ON 07.09.2018 RAISED ADDITIONAL GROUNDS OF APPEAL. THESE ADDITIONAL GROU NDS OF APPEAL GO THE ROOT OF THE MATTER AND ARE VITAL TO THE DISPOSAL OF THE SAID APPEALS. THEIR ADMITTANCE SHALL HELP APPELLANT IN GETTING JUSTICE. 4. RULE 11 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 READS THE APPELLANT SHALL NOT, EXCEPT BY LEAVE OF THE TRI BUNAL, URGE OR BE HEARD IN SUPPORT OF ANY GROUND NOT SET FORTH IN THE MEMOR ANDUM OF APPEAL, BUT THE TRIBUNAL, IN DECIDING THE APPEAL, SHALL NOT BE CONFINED TO THE GROUNDS SET FORTH IN THE MEMORANDUM OF APPEAL OR TAKEN BY L EAVE OF THE TRIBUNAL UNDER THIS RULE : PROVIDED THAT THE TRIBUNAL SHALL NOT REST ITS DECIS ION ON ANY OTHER GROUND UNLESS THE PARTY WHO MAY BE AFFECTED THEREBY HAS HAD A SUF FICIENT OPPORTUNITY OF BEING HEARD ON THAT GROUND . TRIBUNAL IS UNDER STATUTORY OBLIGATION NOT ONLY TO ENTERTAIN PLEA BUT ALSO TO DECIDE THE SAME AFTER PROVIDING SUFFICIENT OPPORTUN ITY OF BEING HEARD TO THE OTHER SIDE. 5. THERE ARE DIRECT DECISIONS WHICH DEAL WITH THE SUBJE CT MATTER OF THIS SUBMISSION RELATING TO ADMISSION OF ADDITIONAL GROU ND IN THE SECOND ROUND OF APPELLATE PROCEEDINGS BEFORE THE HONBLE TRIBUNA L. THESE ARE IN ADDITION TO AND IN CONTINUATION OF THE CASE LAW PAPER BOOK A LREADY ON RECORD. A CASE [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 54 LAW PAPER BOOK VOLUME 2 HAS BEEN FURNISHED WITH T HE SIMILAR SUBMISSION MADE IN THE APPEALS OF MOHD. ATIQUE. G) HONBLE BOMBAY HIGH COURT IN THE CASE OF INVENTORS INDUSTRIAL CORPN. LTD [1992] 194 ITR 548 HEAD NOTE SECTION 251 OF THE INCOME-TAX ACT, 1961 COMMISSIONER (APPEALS) POWERS OF ASSESSM ENT YEAR 1958-59 WHETHER A GROUND BY WHICH JURISDICTION TO MAKE ASSES SMENT ITSELF IS CHALLENGED CAN BE URGED BEFORE ANY AUTHORITY FOR FI RST TIME HELD, YES WHETHER, THEREFORE, ASSESSEE WAS ENTITLED TO CHALLE NGE JURISDICTION OF INCOME-TAX OFFICER TO INITIATE REASSESSMENT PROCEED INGS BEFORE APPELLATE ASSISTANT COMMISSIONER IN SECOND ROUND OF PROCEEDIN GS EVEN THOUGH HE HAD NOT RAISED IT EARLIER BEFORE INCOME-TAX OFFICER OR IN EARLIER APPEAL BEFORE AAC HELD, YES [EMPHASIS SUPPLIED] H) HONBLE ITAT BENCH OF KOLKATA A IN THE CASE OF PEERLESS GEN. FIN. & INV. CO. LTD. [2008] 21 SOT 440 HEAD NOTE - SECTION 253 OF THE INCOME-TAX ACT, 1961 - APPELLATE TRIBUNAL - APPEALS TO - ASSES SMENT YEAR 1994-95 - WHETHER JURISDICTIONAL PROVISION, WHICH IS MANDATOR Y, CAN BE TAKEN UP IN SECOND ROUND OF LITIGATION AND AN ASSESSEE CAN RAIS E ISSUE RELATING TO VALIDITY OF ORDER IN SECOND ROUND OF LITIGATION EVE N IF SAME WAS NOT RAISED IN FIRST ROUND - HELD, YES [EMPHASIS SUPPLIED] I) HONBLE BOMBAY HIGH COURT (FULL BENCH) IN THE CASE OF AHMEDABAD ELECTRICITY CO. LTD. [1993] 6 TAXMAN 27 HEAD NOTE SECTION 254 OF THE INCOME-TAX ACT, 1961 - APPELLATE TRIBUNAL - POWERS OF - ASSESSMENT YEARS 1962-63 TO 1971-72 - DURING ASSESSMENT ASSESSEE DID NOT CLAIM DEDUCTION OF AMOUNTS TRANSFERRED TO 'RESERVE' AS PER ELECTRIC SUPPLY ACT, 1948, EITHER BEFORE ITO OR AAC - LATER, ON BASIS OF A HIGH COURT DECISION HOLDING SUCH AMOUNTS AS DEDUCTIBLE ON REVENUE ACCOUNT ASSESSEE C LAIMED DEDUCTION OF SAME BEFORE TRIBUNAL BY WAY OF ADDITIONAL GROUND WH ILE APPEAL WAS PENDING BEFORE TRIBUNAL - TRIBUNAL REFUSED TO PERMI T ASSESSEE TO RAISE SUCH ADDITIONAL GROUND - WHETHER PHRASE 'PASS SUCH ORDER THEREON' OCCURRING IN SECTION 254(1) CONFERS WIDEST POSSIBLE JURISDICTION ON TRIBUNAL INCLUDING JURISDICTION TO PERMIT ANY ADDITIONAL GROUND OF APPE AL IF IN ITS DISCRETION AND FOR GOOD REASONS IT THINKS IT NECESSARY AND PERMISS IBLE TO DO SO - HELD, YES - WHETHER TRIBUNAL HAD JURISDICTION TO PERMIT ADDITIO NAL GROUNDS TO BE [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 55 RAISED BEFORE IT EVEN THOUGH THESE MIGHT NOT HAVE A RISEN FROM AAC'S ORDER, SO LONG AS THESE GROUNDS WERE IN RESPECT OF SUBJECT-MATTER OF ENTIRE TAX PROCEEDINGS - HELD, YES [EMPHASIS SUPPLIED] J) HONBLE GUJARAT HIGH COURT IN THE CASE OF P.V. DOSHI [1978] 113 ITR 22 HELD ............... AS THE TRIBUNAL HAD FAILED TO NOTICE THIS MATERIAL DISTINCTION BETWEEN A MERE PROCEDURAL PROVISION WHI CH COULD BE WAIVED AND SUCH JURISDICTIONAL PROVISION OR A MANDATORY PR OVISION ENACTED IN PUBLIC INTEREST WHICH COULD NOT BE WAIVED, BECAUSE BY CONSENT NO JURISDICTION COULD BE CONFERRED ON THE AUTHORITY UN LESS THE CONDITIONS PRECEDENT WERE FIRST FULFILLED. THE TRIBUNAL'S VIEW WAS CLEARLY ERRONEOUS THAT THE MATTER BECAME FINAL WHEN THE TRIBUNAL PASS ED THE EARLIER REMAND ORDER SO THAT THIS POINT OF JURISDICTION GOT FINALLY SETTLED, WHICH COULD NOT BE AGITATED UNLESS THE ASSESSEE HAD COME IN THE REFERE NCE TO THE HIGH COURT AT THIS STAGE. THE TRIBUNALS VIEW WAS ALSO INCORRECT THAT IN RESTORING THE CASE TO THE FILE OF THE ITO BY THE EARLIER ORDER, THE ON LY POINT LEFT OPEN WAS IN RESPECT OF ADDITION ON MERITS AND THAT THE LEGAL OR JURISDICTIONAL ASPECT WHETHER THE RE-ASSESSMENT PROCEEDINGS WERE LEGALLY INITIATED WAS NOT KEPT OPEN. EVEN THE TRIBUALS VIEW WAS ERRONEOUS THAT EVEN THO UGH THIS POINT WENT TO THE ROOT OF THE JURISDICTION AND WAS A PURE QUESTION OF LAW, MERELY BECAUSE THE POINT WAS INITIALLY RAISED AND NOT PRES SED WHEN THE MATTER WAS TAKEN UP BEFORE THE AAC, IT COULD BE WAIVED AND IT COULD NOT BE REAGITATED. [EMPHASIS SUPPLIED] K) HONBLE APEX COURT IN THE CASE OF S. NELLIAPPAN [1967] 66 ITR 722 HEAD NOTE SECTION 254 OF THE INCOME-TAX ACT, 1961 [CORRESPOND ING TO SECTION 33(4) OF THE INCOME-TAX ACT, 1922] - APPELLATE TRIB UNAL - POWER OF - WHETHER IN HEARING AN APPEAL TRIBUNAL MAY GIVE LEAVE TO ASS ESSEE TO URGE GROUNDS NOT SET FORTH IN MEMORANDUM OF APPEAL, AND IN DECID ING APPEAL TRIBUNAL IS NOT RESTRICTED TO GROUNDS SET FORTH IN MEMORANDUM O F APPEAL OR TAKEN BY LEAVE OF TRIBUNAL - HELD, YES [EMPHASIS SUPPLIED] L) THE LEGAL AND JURISDICTIONAL ISSUE RAISED IN THE INS TANT ADDITIONAL GROUNDS BY THE APPELLANT WAS DEALT BY THE HONBLE DELHI HIGH COURT IN THE CASE OF KABUL CHAWLA [2016] 380 ITR 573 - PARA 2 THE ISSUE THAT THE COURT PROPOSES TO ADDRESS IN THESE APPEALS IS THE SAME TH AT WAS CONSIDERED BY THE [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 56 ITAT VIZ., WHETHER THE ADDITIONS MADE TO THE INCOM E OF THE RESPONDENT ASSESSEE FOR THE SAID AYS UNDER SECTION 2(22)E OF T HE INCOME TAX ACT, 1961 (ACT) WERE NOT SUSTAINABLE BECAUSE NO INCRIMINATING MATERIAL CONCERNING SUCH ADDITIONS WERE FOUND DURING THE COURSE OF SEARCH AND FURTHER NO ASSESSMENTS FOR SUCH YEARS WERE PENDING ON THE DATE OF SEARCH? [EMPHASIS SUPPLIED] 6. THE ABOVE JUDICIAL PRECEDENTS ADEQUATELY FORTIFY THE CASE OF THE APPELLANT. ADDITION MADE IN ABSENCE OF INCRIMINATING MATERIAL RELATING TO SUCH ADDITION FOUND AND SEIZED DURING THE COURSE OF SEAR CH OF MOHD. ATIQUE AND MOHD. SHAFIQUE, ASSESSEE BEING OTHER PERSON AND A SSESSED UNDER SECTION 153C, OUGHT TO BE DELETED. THE ABOVE ISSUE OF ADMITTANCE OF ADDITIONAL LEGAL G ROUND RAISED FOR THE FIRST TIME BEFORE HONBLE TRIBUNAL IN SECOND RO UND OF APPELLATE PROCEEDINGS IS ALSO RAISED IN THE CASE OF SEARCHED PERSONS NAMELY, MOHD. ATIQUE AND MOHD. SHAFIQUE. THE RATIO OF SUBMISSION MADE IN THE CASE OF SEARCHED PERSONS APPLIES WITH EQUAL FORCE IN THE IN STANT CASE ALSO, WITHOUT PREJUDICE TO THE OTHER LEGAL GROUNDS OF APPEAL. SUBMITTED AUTHORISED REPRESENTATIVE 30. LD. D.R. OPPOSED THESE SUBMISSIONS AND SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. 31. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IN THIS APPEAL ALSO, THE ASSE SSEE [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 57 HAS FILED AN ADDITIONAL GROUND. THE PARTIES HAVE ADOPTED SAME ARGUMENT AS WERE IN ITA NO.30/IND/2016. FOR THE SAME REASONING ADDITIONAL GROUND BY THE ASSESSEE ARE DISMISSED. GROUND NO.1 OF THE ASSESSEES APPEAL IS AGAI NST CONFIRMING THE ADDITION OF RS.5 LAKHS BY NOT ALLOWING THE CLAIM OF OPENING CASH BALANCE AS ON 1.4.2000. LD. COUNS EL FOR THE ASSESSEE VEHEMENTLY ARGUED THAT THE AUTHORITIES BELOW WERE NOT JUSTIFIED IN ALLOWING THE CASH BALANCE. HE SUBMITTED THAT THE ASSESSEE HAS BEEN ENGAGED IN BUSINES S AS WELL AS EARNING AGRICULTURAL INCOME. THEREFORE, IT C ANNOT BE PRESUMED THAT HE WAS NOT HAVING ANY OPENING CASH BALANCE. 32. ON THE CONTRARY, LD. D.R. OPPOSED THESE SUBMISSI ONS AND SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. HE SUBMITTED THAT THE ASSESSEE OUGHT TO HAVE GIVEN SUPPO RTING EVIDENCE IN SUPPORT OF THE CONTENTION. HE SUBMITTE D THAT [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 58 THE ASSESSEE WAS NOT FILING ANY RETURN OF INCOME. IT WAS ONLY WHEN SEARCH WAS CONDUCTED THE ASSESSEE HAS FILED T HE RETURN FOR FIRST TIME IN RESPECT OF ASSESSMENT UNDER CONSIDERATION. 33. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. ASSESSING OFFICER HAD MADE ADDITION ON THE BASIS THAT THE ASSESSEE COULD NOT SUBMI T ANY PIECE OF EVIDENCE IN SUPPORT OF THIS CONTENTION. THE EXPLANATION BEFORE THE AUTHORITIES BELOW WAS THAT THE ASSESSEE WAS HAVING A BUSINESS OF TRANSPORT, WHICH HE DI D NOT DISCLOSE IN HIS RETURN OF INCOME WAS SUFFICIENT FOR HAVING BALANCE OF RS.5 LAKHS AS ON 1.4.2000. IT IS UNDISPUTED FACT THAT THE REVENUE HAS ASSESSED BUSINESS INCOME FROM TRANSPORT BUSINESS BY APPLYING A NET PROF IT @ 8%. THEREFORE, IT CANNOT BE PRESUMED THAT ASSESSEE WAS [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 59 NOT HAVING OPENING CASH BALANCE. CONSIDERING THE TOTAL ITY OF THE FACTS, WE DELETE THIS ADDITION. 34. NOW COMING TO GROUND NO.2 OF THE ASSESSEES APPEAL IS AGAINST CONFIRMING ADDITION OF RS.6,52,324/- WHICH WA S MADE BY APPLYING THE NET PROFIT ON THE GROSS RECEIPTS @ 8%. LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIO NS AS MADE IN THE WRITTEN SUBMISSIONS. HE SUBMITTED THAT AUTHORITIES BELOW WERE NOT JUSTIFIED IN ESTIMATING TH E PROFIT @ 8%. HE SUBMITTED THAT THE ASSESSEE WAS HAVING ONLY T WO TRUCKS WHICH HE WAS PLYING WITH BOMBAY TRANSPORT COMPANY. THEREFORE, ASSESSING OFFICER SHOULD NOT HAVE ESTIMATED NET PROFIT @ 8%. 35. ON THE CONTRARY, LD. D.R. OPPOSED THESE SUBMISSI ONS AND SUPPORTED THE ORDER OF THE AUTHORITIES BELOW AND H E SUBMITTED THAT THE ASSESSEE HAS NOT GIVEN ANY MATERIAL TO SUGGEST THAT THE ASSESSEE WAS HAVING LESSER NET RECEIP T. [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 60 36. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE A.O. HAS ESTIMATED THE PROFIT WITHOUT COMPARING WITH SIMILARLY SITUATED PERSONS. WE FIND THAT THE TRIBUNAL IN ONE OF THE CASES HAS TAKEN A VIEW OF NET RECEIPT @ 5.5%. WE THERE FORE TAKING A CONSISTENT VIEW DIRECT THE A.O. TO ADOPT THE NET PROFIT @ 5.5% AND RE-COMPUTE THE ADDITION ACCORDINGLY . 37. GROUND NO.3 IS GENERAL IN NATURE AND NEEDS NO SEPARATE ADJUDICATION. 38. NOW WE TAKE UP IT(SS)A NO.38/IND/2016 PERTAINING TO THE ASSESSMENT YEAR 2002-03. THE ASSESSE E HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ORDER OF THE ASS ESSING OFFICER, WHERE HE HAD ESTIMATED THE NET PROFIT AT 8% ON THE GROSS RECEIPTS OF RS.18,39,879/- AND IN CONFIRMING THE ADDITION OF RS .99,190/- AS MADE BY THE ASSESSING OFFICER. 2. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER AND/OR TO MODIFY THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 61 39. SINCE SIMILAR GROUND WAS RAISED BY THE ASSESSEE IN THE APPEAL IN GROUND NO.2 OF IT(SS)A NO.37/IND/2016, EXCE PT DIFFERENCE IN FIGURES, THIS APPEAL OF THE ASSESSEE IS ALSO PARTLY ALLOWED BASED ON THE FINDINGS GIVEN IN PARAS 34 & 35 ABOVE IN IT(SS)A NO.37/IND/2016. THE A.O. IS DIRECT ED TO RE-COMPUTE THE NET PROFIT. 40. NOW WE TAKE UP IT(SS)A NO.39/IND/2016 PERTAINING TO THE ASSESSMENT YEAR 2003-04. THE ASSESSE E HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ORDER OF THE ASS ESSING OFFICER, WHERE HE HAD ESTIMATED THE NET PROFIT AT 8% ON THE GROSS RECEIPTS OF RS.27,01,691/- AND IN CONFIRMING THE ADDITION OF RS .1,32,135/- AS MADE BY THE ASSESSING OFFICER. 2. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER AND/OR TO MODIFY THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. 41. SINCE SIMILAR GROUND WAS RAISED BY THE ASSESSEE IN THE APPEAL IN GROUND NO.2 OF IT(SS)A NO.37/IND/2016, EXCE PT DIFFERENCE IN FIGURES, THIS APPEAL OF THE ASSESSEE IS ALSO PARTLY ALLOWED BASED ON THE FINDINGS GIVEN IN PARAS 34 & 35 [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 62 ABOVE IN IT(SS)A NO.37/IND/2016. THE A.O. IS HEREBY DIRECTED TO RE-COMPUTE THE NET PROFIT. 42. NOW WE TAKE UP IT(SS)A NO.40/IND/2016 PERTAINING TO THE ASSESSMENT YEAR 2004-05. THE ASSESSE E HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ORDER OF THE ASS ESSING OFFICER, WHERE HE HAD ESTIMATED THE NET PROFIT AT 8% ON THE GROSS RECEIPTS OF RS.20,16,724/- AND IN CONFIRMING THE ADDITION OF RS .77,337/- AS MADE BY THE ASSESSING OFFICER. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ORDER OF THE ASS ESSING OFFICER, WHEREIN HE HAD GIVEN A FINDING THAT THE APPELLANT W AS THE OWNER OF THE CONCERN M/S. BOMBAY TRANSPORT COMPANY, WHICH IN FACT BELONGS TO SHRI NAVED BHAI. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ORDER OF THE ASS ESSING OFFICER, WHEREIN HE INCLUDED THE INCOME OF M/S. BOMBAY TRANS PORT COMPANY IN THE HANDS OF THE APPELLANT. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) AS NOT JUSTIFIED IN CONFIRMING THE INCOME OF M/S. BOMB AY TRANSPORT COMPANY AT RS.5,96,000/- WHICH RESULTED BY THE APPL ICATION OF N.P. RATE OF 8% ON THE TRANSPORTATION RECEIPTS OF RS.74, 50,000/-. 5. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER AND/OR TO MODIFY THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 63 43. GROUND NO.1 OF THE ASSESSEES APPEAL IS AGAINST CONFIRMING ADDITION OF RS.77,337/- WHICH WAS MADE BY APPLYING THE NET PROFIT ON THE GROSS RECEIPTS @ 8%. THESE GROUNDS ARE SIMILAR TO THE GROUND RAISED BY THE ASSESSE E IN THE APPEAL IN GROUND NO.2 OF IT(SS)A NO.37/IND/2016, EXCEPT DIFFERENCE IN FIGURES, THESE GROUNDS OF THE ASSESSEE ARE ALSO PARTLY ALLOWED BASED ON THE IN IT(SS)A NO.37/IND/2016. THE A.O. IS DIRECTED TO RE-COMPUTE THE NET PROFIT. 44. GROUND NOS.2, 3 & 4 ARE IN RESPECT OF THE CLAIM O F THE ASSESSEE THAT THE INCOME RELATED TO BOMBAY TRANSPORT COMPANY IS ATTRIBUTED TO THE ASSESSEE. LD. COUNSEL F OR THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE IN THE WR ITTEN SYNOPSIS. IT IS CONTENDED THAT THE BUSINESS INCOME RELATED TO BOMBAY TRANSPORT COMPANY IS ADDED IN THE INCOME OF THE ASSESSEE. [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 64 45. LD. D.R. OPPOSED THESE SUBMISSIONS AND SUBMITTED THAT THIS INCOME RELATES TO THE ASSESSEE. THEREFORE, THE ADDITION HAS RIGHTLY BEEN MADE IN THE HANDS OF THE ASSESSEE. 46. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT LD. CIT(A) HAS GIVEN FINDING IN PARA 9.1 OF HIS ORDER WHICH READS AS UNDER: 9.1 THE A.O. HAS MADE THIS ADDITION ON THE BASIS OF SEIZED DOCUMENTS PAGES 1 TO 34 OF ANNEXURE A-2 WHICH SHOWED THAT A TRANSPORT CONTRACT WAS OBTAINED FROM MP STATE CIVIL SUPPLIES CORPORATION LTD. IN THE NAM E OF BOMBAY TRANSPORT COMPANY. THE APPELLANT CLAIMED SAID THAT M/S. BOMB AY TRANSPORT CO. WAS A PROPRIETARY CONCERN OWNED BY ONE NAVED BHAI. HOWEV ER, HE FAILED TO PRODUCE SHRI NAVED BHAI BEFORE THE A.O. INFORMATION WAS CA LLED FROM MP STATE CIVIL SUPPLIES CORPORATION LTD. WHICH CONFIRMED PAYMENT O F RS.74,50,000/- AND RS.90,47,913/- TO BOMBAY TRANSPORT CO. IN THE F.Y. 2003-04 AND 2005-06 RESPECTIVELY. IN VIEW OF THE NON-PRODUCTION SHRI N AVED BHAI OR ANY OTHER EVIDENCE IN THIS REGARDS, THE A.O. HELD THAT THE CO NTRACT HAD BEEN EXECUTED BY THE APPELLANT AND ESTIMATING NET PROFIT ON THE SAME @ 8% MADE AN ADDITION OF RS.5,96,000/- IN A.Y. 2004-05 AND OF RS.7,23,873/- IN A.Y. 2005-06 IN THE HANDS OF THE ASSESSEE. A.Y. CONTRACT RECEIPTS FROM MP STATE CIVIL SUPPLIES CORP. LTD. NET PROFIT @ 8% 2004-05 RS.74,50,000/- RS.5,96,000/- 2006-07 RS.90,47,916/- RS.7,23,873/- [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 65 47. FROM THE ABOVE, IT IS EVIDENT THAT ADDITION US SUSTAINED SOLELY ON THE GROUND THAT OF NON-PRODUCTION OF ONE MR. NAVED BHAI, PROPRIETOR OF BOMBAY TRANSPORT COMPANY. AFTER CONSIDERING TOTALITY OF THE FACTS, WE SET ASIDE THE ORDER OF THE AUTHORITIES BELOW AND RESTORE T HIS ISSUE TO THE ASSESSING OFFICER TO DECIDE IT AFRESH. THE ASSESSEE IS DIRECTED TO PRODUCE THE PROPRIETOR OF TH E BOMBAY TRANSPORT COMPANY BEFORE THE A.O. AND FURNISH SUCH DETAILS WHICH ARE NECESSARY TO PROVE THAT IT IS RE LATED TO BOMBAY TRANSPORT COMPANY. AFTER VERIFYING THE D ETAILS AND EXAMINING THE PROPRIETOR OF BOMBAY TRANSPORT COMPANY, THE A.O. WOULD DECIDE THE ISSUE AFRESH. THU S, GROUND NOS.2, 3 & 4 OF THE ASSESSEES APPEAL ARE ALLOWE D FOR STATISTICAL PURPOSES. 48. GROUND NO.5 IS GENERAL IN NATURE AND NEEDS NO SEPARATE ADJUDICATION. [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 66 49. NOW WE TAKE UP IT(SS)A NO.41/IND/2016 PERTAINING TO THE ASSESSMENT YEAR 2006-07. THE ASSESSE E HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ORDER OF THE ASS ESSING OFFICER, WHEREIN HE HAD GIVEN A FINDING THAT THE APPELLANT W AS THE OWNER OF THE CONCERN M/S. BOMBAY TRANSPORT COMPANY, WHICH IN FACT BELONG TO SHRI NAVED BHAI. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ORDER OF THE ASS ESSING OFFICER, WHEREIN HE INCLUDED THE INCOME OF M/S. BOMBAY TRANS PORT COMPANY IN THE HANDS OF THE APPELLANT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE INCOME OF M/S. BOMBAY TRANSPORT COMPANY AT RS.7,23,873/- WHICH RESULTED BY THE APPL ICATION OF N.P. RATE OF 8% ON THE TRANSPORTATION RECEIPTS OF RS.90, 47,916/-. 4. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER AND/OR TO MODIFY THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. 50. GROUND NOS.1,2 & 3 ARE IN RESPECT OF THE CLAIM OF THE ASSESSEE THAT THE INCOME RELATED TO BOMBAY TRANSPORT COMPANY IS ATTRIBUTED TO THE ASSESSEE. 51. SINCE SIMILAR GROUNDS WERE RAISED IN THE APPEAL OF THE ASSESSEE IN GROUND NOS.2, 3 & 4 IN IT (SS)A NO.40/IND/2016 FOR THE A.Y. 2004-05, WHICH WERE [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 67 ADJUDICATED ABOVE, THESE GROUNDS OF THE ASSESSEE ARE ALSO PARTLY ALLOWED FOR STATISTICAL PURPOSES BASED ON THE FIN DINGS GIVEN ABOVE IN IT(SS)A NO.40/IND/2016. 52. NOW WE TAKE UP IT(SS)A NO.42/IND/2016 PERTAINING TO THE ASSESSMENT YEAR 2007-08. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION MADE B Y THE ASSESSING OFFICER BY NOT ACCEPTING THE UNSECURED TE MPORARY LOANS (SQUARED UP DURING THE ACCOUNTING YEAR) AS BELOW:- A. SYED ABDULLAH RS. 17,000.00 B. MEMBOOB KHAN RS.1,00,000.00 C. RASHID VAHID RS.1,00,000.00 D. S. MAHMOOD ALI RS.1,20,000.00 RS.3,37,000.00 2. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER AND/OR TO MODIFY THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. 53. THIS SOLITARY GROUND IS ON ACCOUNT OF UNSECURED TEMPORARY LOANS. LD. COUNSEL FOR THE ASSESSEE SUBMIT TED THAT ALL THE DETAILS WERE FILED BEFORE THE AUTHORITIES BELOW. HE DREW OUR ATTENTION TO PAPER BOOK PAGES 50, 51 & 52. IT [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 68 IS STATED THAT AMOUNT WAS REPAID DURING THE YEAR UNDER CONSIDERATION. 54. LD. D.R. OPPOSED THESE SUBMISSIONS AND SUBMITTED THAT NO EVIDENCES WERE PLACED BEFORE THE A.O. AND THEREFORE HE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 55. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE ASSESSING OFFICER HAS N OT GIVEN ANY FINDING WHETHER THESE AMOUNTS WERE REPAID DURING THE YEAR UNDER CONSIDERATION DESPITE THE MATTE R WAS RESTORED TO THE A.O. THE ASSESSEE HAS PLACED ON RECOR D PROOF OF RETURNING OF AMOUNT THROUGH BANKING CHANNEL WHICH IS NOT REBUTTED BY THE REVENUE, THEREFORE, WE DIRECT THE A.O. TO DELETE THIS ADDITION. GROUND RAISED IN T HIS APPEAL IS ALLOWED. APPEAL OF THE ASSESSEE IN THE ASSESSMENT YEAR 2007-08 IS ALLOWED. [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 69 56. NOW WE TAKE UP IT(SS)A NOS.124 & 125/IND/2016 IN THE CASE OF MD. SHAFIQUE. THESE TWO APPEALS BY THE ASSESSEE ARE AGAINST ORDER OF CIT(A)-2, BHOPAL DATED 4.3.2016 PERTAINING TO THE ASSESSMENT YEARS 2005-06 & 2007-08. FIRST WE TAKE UP IT(SS)A NO.124/IND/2016 PERTAINING TO THE A.Y. 2005-06. THE ASSESSEE HAS RAISE D FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THAT THE CREDIT OF RS.2, 00,000/- IN THE NAME OF ANEES AHMED WAS NOT EXPLAINABLE AND IN CONFIRMING T HE ADDITION OF RS.2,00,000/- TOWARDS THE SAME IN THE HANDS OF THE APPELLANT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THAT THE PROVISIONS OF S EC.44 AE DID NOT APPLY TO THE APPELLANT AS THE APPELLANT WAS CARRYING THE TRANSPORT BUSINESS IN THE NAME OF MOHD. SHAFIQUE & CO. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THAT IN ESTIMATING THE N ET PROFIT AT 8% OF THE GROSS RECEIPTS OF RS.1,43,91,687/- AND IN CONFIRMIN G THE ADDITION OF RS.1,51,334/- IN THE HANDS OF THE APPELLANT. 4. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER AN/O R TO MODIFY THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. 57. DURING THE COURSE OF PROCEEDINGS, THE ASSESSEE H AS ALSO TAKEN AN ADDITIONAL GROUND THAT READS AS UNDER: [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 70 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, LEARNED ASSESSING OFFICER ERRED IN MAKING THE ADDITION AND PASSING THE IMPUGNED ASSESSMENT ORDER UNDER SECTION 153A R.W.S. 143(3) W ITHOUT REFERENCE TO ANY INCRIMINATING MATERIAL FOUND AND SEIZED DURING THE COURSE OF CONDUCT OF SEARCH. 58. BRIEFLY STATED FACTS ARE THAT A SEARCH AND SEIZURE OPERATION WAS CARRIED OUT U/S 143(2)(1) OF THE ACT IN THE CASE OF MD. SHAFIQUE GROUP ON 21.9.2006. THEREAFTER, A NOTICE U/S 153A OF THE ACT WAS ISSUED ON 19.5.2008. IN RESPONSE THERETO, THE ASSESSEE FILED A RETURN OF INCO ME DECLARING AN INCOME OF RS.12,38,946/- AND ALSO CLAIMED AGRICULTURAL INCOME OF RS.68,682/-. THE ASSESSMENT U/ S 153A R.W.S. 143(3) OF THE ACT WAS FRAMED VIDE ORDER D ATED 31.12.2008. THE ASSESSING OFFICER WHILE FRAMING THE ASSESSMENT MADE VARIOUS ADDITIONS ON ACCOUNT OF DISALLOWANCE OF AGRICULTURAL INCOME AT RS.68,682/-, DISALLOWANCE OF RENTAL INCOME OF RS.65,520/- AND ADDITI ON ON ACCOUNT OF UNEXPLAINED CASH CREDIT OF RS.2 LAKHS. FURTHER, THE A.O. MADE ADDITION OF RS.97,000/- AND [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 71 RS.1,54,334/- IN RESPECT OF THE BUSINESS RECEIPTS AN D SUBSTANTIVE ADDITION OF RS.97,000/- IN THE CASE OF FARI DA SULTANA. AGGRIEVED BY THIS, THE ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS PARTLY ALLOWED THE APPEAL. THEREBY, THE APPLICATION OF NET PROFIT @ 8% ON THE GROSS RECEIPTS WAS SUSTAINED AND THE ADDITION OF RS.97,000/- WAS DELETED. FURTHER, ADDITION OF RS.2 LAKHS TREATING AS A CASH CREDI T WAS UPHELD. AGGRIEVED AGAINST THIS ORDER, THE ASSESSEE IS IN PRESENT APPEAL. 59. FIRST WE TAKE UP THE ADDITIONAL GROUND OF THE ASSE SSEE. THE ADDITIONAL GROUND OF THE ASSESSEE READS AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, LEARNED ASSESSING OFFICER ERRED IN MAKING THE ADDIT ION AND PASSING THE IMPUGNED ASSESSMENT ORDER UNDER SECTION 153A R.W.S. 143(3) WITHOUT REFERENCE TO ANY INCRIMINATING MATERIAL FOUND AND S EIZED DURING THE COURSE OF CONDUCT OF SEARCH. [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 72 60. LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE IN THE WRITTEN SUBMISSIONS WHIC H READS AS UNDER: FIXED FOR HEARING ON 14.02.2019 BEFORE THE HONBLE INCOME TAX APPELLATE TRIBUNAL, I NDORE BENCH, INDORE IT(SS)A NO.: 124/IND/2016 AND125/IND/2016 BY THE AS SESSEE ___________________________________________________ _____ ____________ IN THE MATTER OF : MOHD. SHAFIQUE, BHOPAL PAN :ANIPS2739K ASSESSMENT YEAR :2005-06 AND 2007-08 STATUS : INDIVIDUAL ___________________________________________________ ________________ __ MAY IT PLEASE YOUR HONORS, IN THE COURSE OF HEARING HELD ON 06.02.2019, HONBL E BENCH WAS KIND IN GIVING AN OPPORTUNITY TO THE LD. CIT(DR) TO MAKE HE R SUBMISSION ON THE CASE LAWS RELATING TO THE ADDITIONAL GROUNDS FILED BY TH E ASSESSEE. 7. A WRITTEN SUBMISSION ON THE ADDITIONAL GROUNDS ALON G WITH RELEVANT JUDICIAL DECISIONS IS ALREADY ON RECORD. THIS FURTHER SUBMIS SION MAY PLEASE BE CONSIDERED IN CONTINUATION TO THE EARLIER SUBMISSIO N ALREADY ON RECORD. 8. ASSESSEE VIDE APPLICATION DATED 04.09.2018 FILED ON 07.09.2018 RAISED ADDITIONAL GROUNDS OF APPEAL. THESE ADDITIONAL GROU NDS OF APPEAL GO THE [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 73 ROOT OF THE MATTER AND ARE VITAL TO THE DISPOSAL OF THE SAID APPEALS. THEIR ADMITTANCE SHALL HELP APPELLANT IN GETTING JUSTICE. 9. RULE 11 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 READS THE APPELLANT SHALL NOT, EXCEPT BY LEAVE OF THE TRI BUNAL, URGE OR BE HEARD IN SUPPORT OF ANY GROUND NOT SET FORTH IN THE MEMOR ANDUM OF APPEAL, BUT THE TRIBUNAL, IN DECIDING THE APPEAL, SHALL NOT BE CONFINED TO THE GROUNDS SET FORTH IN THE MEMORANDUM OF APPEAL OR TAKEN BY L EAVE OF THE TRIBUNAL UNDER THIS RULE : PROVIDED THAT THE TRIBUNAL SHALL NOT REST ITS DECIS ION ON ANY OTHER GROUND UNLESS THE PARTY WHO MAY BE AFFECTED THEREBY HAS HAD A SUF FICIENT OPPORTUNITY OF BEING HEARD ON THAT GROUND . TRIBUNAL IS UNDER STATUTORY OBLIGATION NOT ONLY TO ENTERTAIN PLEA BUT ALSO TO DECIDE THE SAME AFTER PROVIDING SUFFICIENT OPPORTUN ITY OF BEING HEARD TO THE OTHER SIDE. 10. THERE ARE DIRECT DECISIONS WHICH DEAL WITH THE SUBJE CT MATTER OF THIS SUBMISSION RELATING TO ADMISSION OF ADDITIONAL GROU ND IN THE SECOND ROUND OF APPELLATE PROCEEDINGS BEFORE THE HONBLE TRIBUNA L. THESE ARE IN ADDITION TO AND IN CONTINUATION OF THE CASE LAW PAPER BOOK A LREADY ON RECORD. A CASE LAW PAPER BOOK VOLUME 2 HAS BEEN FURNISHED WITH T HE SIMILAR SUBMISSION MADE IN THE APPEALS OF MOHD. ATIQUE. M) HONBLE BOMBAY HIGH COURT IN THE CASE OF INVENTORS INDUSTRIAL CORPN. LTD [1992] 194 ITR 548 HEAD NOTE SECTION 251 OF THE INCOME-TAX ACT, 1961 COMMISSIONER (APPEALS) POWERS OF ASSESSM ENT YEAR 1958-59 WHETHER A GROUND BY WHICH JURISDICTION TO MAKE ASSES SMENT ITSELF IS CHALLENGED CAN BE URGED BEFORE ANY AUTHORITY FOR FI RST TIME HELD, YES WHETHER, THEREFORE, ASSESSEE WAS ENTITLED TO CHALLE NGE JURISDICTION OF INCOME-TAX OFFICER TO INITIATE REASSESSMENT PROCEED INGS BEFORE APPELLATE ASSISTANT COMMISSIONER IN SECOND ROUND OF PROCEEDIN GS EVEN THOUGH HE HAD NOT RAISED IT EARLIER BEFORE INCOME-TAX OFFICER OR IN EARLIER APPEAL BEFORE AAC HELD, YES [EMPHASIS SUPPLIED] [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 74 N) HONBLE ITAT BENCH OF KOLKATA A IN THE CASE OF PEERLESS GEN. FIN. & INV. CO. LTD. [2008] 21 SOT 440 HEAD NOTE - SECTION 253 OF THE INCOME-TAX ACT, 1961 - APPELLATE TRIBUNAL - APPEALS TO - ASSES SMENT YEAR 1994-95 - WHETHER JURISDICTIONAL PROVISION, WHICH IS MANDATOR Y, CAN BE TAKEN UP IN SECOND ROUND OF LITIGATION AND AN ASSESSEE CAN RAIS E ISSUE RELATING TO VALIDITY OF ORDER IN SECOND ROUND OF LITIGATION EVE N IF SAME WAS NOT RAISED IN FIRST ROUND - HELD, YES [EMPHASIS SUPPLIED] O) HONBLE BOMBAY HIGH COURT (FULL BENCH) IN THE CASE OF AHMEDABAD ELECTRICITY CO. LTD. [1993] 6 TAXMAN 27 HEAD NOTE SECTION 254 OF THE INCOME-TAX ACT, 1961 - APPELLATE TRIBUNAL - POWERS OF - ASSESSMENT YEARS 1962-63 TO 1971-72 - DURING ASSESSMENT ASSESSEE DID NOT CLAIM DEDUCTION OF AMOUNTS TRANSFERRED TO 'RESERVE' AS PER ELECTRIC SUPPLY ACT, 1948, EITHER BEFORE ITO OR AAC - LATER, ON BASIS OF A HIGH COURT DECISION HOLDING SUCH AMOUNTS AS DEDUCTIBLE ON REVENUE ACCOUNT ASSESSEE C LAIMED DEDUCTION OF SAME BEFORE TRIBUNAL BY WAY OF ADDITIONAL GROUND WH ILE APPEAL WAS PENDING BEFORE TRIBUNAL - TRIBUNAL REFUSED TO PERMI T ASSESSEE TO RAISE SUCH ADDITIONAL GROUND - WHETHER PHRASE 'PASS SUCH ORDER THEREON' OCCURRING IN SECTION 254(1) CONFERS WIDEST POSSIBLE JURISDICTION ON TRIBUNAL INCLUDING JURISDICTION TO PERMIT ANY ADDITIONAL GROUND OF APPE AL IF IN ITS DISCRETION AND FOR GOOD REASONS IT THINKS IT NECESSARY AND PERMISS IBLE TO DO SO - HELD, YES - WHETHER TRIBUNAL HAD JURISDICTION TO PERMIT ADDITIO NAL GROUNDS TO BE RAISED BEFORE IT EVEN THOUGH THESE MIGHT NOT HAVE A RISEN FROM AAC'S ORDER, SO LONG AS THESE GROUNDS WERE IN RESPECT OF SUBJECT-MATTER OF ENTIRE TAX PROCEEDINGS - HELD, YES [EMPHASIS SUPPLIED] P) HONBLE GUJARAT HIGH COURT IN THE CASE OF P.V. DOSHI [1978] 113 ITR 22 HELD ............... AS THE TRIBUNAL HAD FAILED TO NOTICE THIS MATERIAL DISTINCTION BETWEEN A MERE PROCEDURAL PROVISION WHI CH COULD BE WAIVED AND SUCH JURISDICTIONAL PROVISION OR A MANDATORY PR OVISION ENACTED IN PUBLIC INTEREST WHICH COULD NOT BE WAIVED, BECAUSE BY CONSENT NO JURISDICTION COULD BE CONFERRED ON THE AUTHORITY UN LESS THE CONDITIONS PRECEDENT WERE FIRST FULFILLED. THE TRIBUNAL'S VIEW WAS CLEARLY ERRONEOUS THAT THE MATTER BECAME FINAL WHEN THE TRIBUNAL PASS ED THE EARLIER REMAND ORDER SO THAT THIS POINT OF JURISDICTION GOT FINALLY SETTLED, WHICH COULD NOT BE AGITATED UNLESS THE ASSESSEE HAD COME IN THE REFERE NCE TO THE HIGH COURT AT [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 75 THIS STAGE. THE TRIBUNALS VIEW WAS ALSO INCORRECT THAT IN RESTORING THE CASE TO THE FILE OF THE ITO BY THE EARLIER ORDER, THE ON LY POINT LEFT OPEN WAS IN RESPECT OF ADDITION ON MERITS AND THAT THE LEGAL OR JURISDICTIONAL ASPECT WHETHER THE RE-ASSESSMENT PROCEEDINGS WERE LEGALLY INITIATED WAS NOT KEPT OPEN. EVEN THE TRIBUALS VIEW WAS ERRONEOUS THAT EVEN THO UGH THIS POINT WENT TO THE ROOT OF THE JURISDICTION AND WAS A PURE QUESTION OF LAW, MERELY BECAUSE THE POINT WAS INITIALLY RAISED AND NOT PRES SED WHEN THE MATTER WAS TAKEN UP BEFORE THE AAC, IT COULD BE WAIVED AND IT COULD NOT BE REAGITATED. [EMPHASIS SUPPLIED] Q) HONBLE APEX COURT IN THE CASE OF S. NELLIAPPAN [1967] 66 ITR 722 HEAD NOTE SECTION 254 OF THE INCOME-TAX ACT, 1961 [CORRESPOND ING TO SECTION 33(4) OF THE INCOME-TAX ACT, 1922] - APPELLATE TRIB UNAL - POWER OF - WHETHER IN HEARING AN APPEAL TRIBUNAL MAY GIVE LEAVE TO ASS ESSEE TO URGE GROUNDS NOT SET FORTH IN MEMORANDUM OF APPEAL, AND IN DECID ING APPEAL TRIBUNAL IS NOT RESTRICTED TO GROUNDS SET FORTH IN MEMORANDUM O F APPEAL OR TAKEN BY LEAVE OF TRIBUNAL - HELD, YES [EMPHASIS SUPPLIED] R) THE LEGAL AND JURISDICTIONAL ISSUE RAISED IN THE INS TANT ADDITIONAL GROUNDS BY THE APPELLANT WAS DEALT BY THE HONBLE DELHI HIGH COURT IN THE CASE OF KABUL CHAWLA [2016] 380 ITR 573 - PARA 2 THE ISSUE THAT THE COURT PROPOSES TO ADDRESS IN THESE APPEALS IS THE SAME TH AT WAS CONSIDERED BY THE ITAT VIZ., WHETHER THE ADDITIONS MADE TO THE INCOM E OF THE RESPONDENT ASSESSEE FOR THE SAID AYS UNDER SECTION 2(22)E OF T HE INCOME TAX ACT, 1961 (ACT) WERE NOT SUSTAINABLE BECAUSE NO INCRIMINATING MATERIAL CONCERNING SUCH ADDITIONS WERE FOUND DURING THE COURSE OF SEARCH AND FURTHER NO ASSESSMENTS FOR SUCH YEARS WERE PENDING ON THE DATE OF SEARCH? [EMPHASIS SUPPLIED] 11. THE ABOVE JUDICIAL PRECEDENTS ADEQUATELY FORTIFY THE CASE OF THE APPELLANT. ADDITION MADE IN ABSENCE OF INCRIMINATING MATERIAL RELATING TO SUCH ADDITION FOUND AND SEIZED DURING THE COURSE OF SEAR CH, OUGHT TO BE DELETED. SUBMITTED [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 76 AUTHORISED REPRESENTATIVE FIXED FOR HEARING ON 06.02.2019 BEFORE THE HONBLE INCOME TAX APPELLATE TRIBUNAL, I NDORE BENCH, INDORE IT(SS)A NO.: 124/IND/2016BY THE ASSESSEE ___________________________________________________ _____ __________ IN THE MATTER OF : MOHD. SHAFIQUE, BHOPAL PAN :ANIPS2739K ASSESSMENT YEAR :2005-06 STATUS : INDIVIDUAL RETURN : AT RS.12,38,946 AND AGRICULTURE INCOME RS. 68,682 ON 20.06.2008 ASSESSMENT ORDER : U/S 143(3) RWS 153A DATED 31.03 .2008AT RS.15,73,150(ADDITION FOR AGRICULTURE INCOME RS. 68 ,682 & RENTAL INCOME RS. 65,520; UNEXPLAINED CASH CREDIT OF RS. 2,00,000; SUBSTANTIVE ADDITION OF RS. 97,000; N ET PROFIT @ 8% RS. 1,51,334) CIT(A) ORDER :DATED 04.03.2016 RELIEF GRANTED FOR A LL THE OTHER ADDITIONS EXCEPT FOR ADDITIONS OF UNEXPLAINED CASH CREDIT OF RS. 2,00,000 AND NET PROFIT @ 8% RS. 1,51,334 ___________________________________________________ __________ _____ D. FACTS OF THE CASE: 24. THE MAIN SOURCE OF INCOME FOR ASSESSEE IS AGRICULTU RE. IN ADDITION TO THIS HE IS ALSO EARNING INCOME FROM THE BUSINESS OF TRAN SPORTATION, RENTAL INCOME AND INTEREST INCOME. [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 77 25. SEARCH AND SEIZURE OPERATIONS U/S 132 WERE CONDUCTED IN THE CASE OF MOHD. SHAFIQUE GROUP ON 21.09.2006 INCLUDING THE ASSESSEE HIMSELF. 26. IN THE ASSESSMENT PROCEEDINGS, LD. AO ASKED ASSESSE E TO SUBMIT COPY OF BANK STATEMENT AND RETURN OF INCOME OF ANEES AHMED FROM WHOM HE HAD RECEIVED LOAN OF RS. 2,00,000. ASSESSEE COULD O BTAIN THE CONFIRMATION LETTER OF ANEES AHMED ONLY AFTER THE C OMPLETION OF ASSESSMENT PROCEEDINGS. HENCE,ITWAS FILED AS ADDITI ONAL EVIDENCE BEFORE LD. CIT(A). LD. CIT(A) DID NOT ADMIT THIS ADDITIONAL EVIDENCE A ND PROCEEDED TO SUSTAIN THE ADDITION MADE BY LD. AO. 27. LD. AO REFERRED TO ANNEXURE- A2 PAGE NO. 1 TO 34 (B OOKS OF ACCOUNTS OF BOMBAY TRANSPORT COMPANY PROPRIETOR NAVEDBHAI) AND ANNEXURE -2 PAGE 31 IMPOUNDED FROM OFFICE OF M/S. EKTA TRANSPORT COMPANY. FOR THE ADDITION MADE NET PROFIT IS ESTIMATED @ 8% AND AFTER GIVING BENEFIT OF INCOME AS FILED IN RETURN, BALANCE OF RS. 1,51,3 34 WAS ADDED. LD. CIT(A) SUSTAINED THE ADDITION SO MADE BY LD. AO. 28. AGGRIEVED ASSESSEE IS IN APPEAL BEFORE YOUR HONORS. E. SUBMISSION: A. GROUND NO. 01 - ADDITION OF RS. 2,00,000 RECEIVED F ROM ANEES AHMED 8. PARA 3OF ASSESSMENT ORDER U/S 153A RWS 143(3), DATE D 31.12.2008 IN THE YEAR UNDER CONSIDERATION ASSESSEE SOCIETY HA S RECEIVED LOAN OF RS. 2,00,000/- FROM ANEES AHMED. IN THE ORDER S HEET ENTRY DATED 10.10.2008 ASSESSEE WAS ASKED TO SUBMIT COPY OF BAN K STATEMENT AND RETURN OF INCOME OF ANEES AHMED. 9. PARA 9.4OFCIT(A) ORDER DATED 04.03.2016 AS THE APPELLANT HAS NOT FURNISHED ANY EXPLANATION OR DOCUMENTARY EVIDENCE REGARDING THE CREDIT WORTHINESS OF SHRIANE ES AHMED OR THE [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 78 GENUINENESS OF TRANSACTION EVEN DURING THE APPELLAT E PROCEEDINGS, THE ADDITION MADE BY THE A.O. IS UPHELD. 10. ASSESSEE SUBMITS THAT HE IS NOT REQUIRED TO MAINTAI N BOOKS OF ACCOUNT AND HAS NOT MAINTAINED THE BOOKS OF ACCOUNT. TO INV OKE PROVISIONS OF SECTION 68 MAINTENANCE OF BOOKS OF ACCOUNTS IS A MA NDATORY CONDITION. IN THE INSTANT CASE,SINCENO BOOKS OF ACCOUNTS ARE M AINTAINED AS ASSESSEE IS NOT REQUIRED TO MAINTAIN THEM, NO ADDIT ION IS WARRANTED U/S 68 OF THE ACT. HOWEVER, ASSESSEE HAS SUBMITTED CONF IRMATION LETTER OFANEES AHMED AS ADDITIONAL EVIDENCE WHICH WAS NOT ACCEPTED AND LD. CIT(A)WHO PROCEEDED TO SUSTAIN THE ADDITION MADE BY LD. AO. [PB 9A] 11. ASSESSEE PRAYS THAT THE ADDITION MADE MAY PLEASE BE DELETED. B. GROUND NO. 02 - REJECTING THE APPLICATION OF PROVIS IONS OF S. 44AE NOT PRESSED C. GROUND NO. 03 - ADDITION BY ESTIMATING NET PROFIT @ 8% AT RS. 1,51,334 1. HONBLE JURISDICTIONAL BENCH OF ITAT INDORE IN THE CASE OF ASSESSEE VIDE ORDER DATED 31.01.2013 IN IT(SS)A NO. 295 TO 299/IND/2012 HAS, AT INTERNAL PAGE 27 AND 29 STATED - [PB 33 BACKSIDE AND 34] THE PROFIT RATE OF 8% IS APPLICABLE IN CASE O F CONTRACT RECEIPTS BUT HERE IS A CASE OF TRANSPORTATION. FROM THE NET PROFIT DECLARED ON TRUCK OPERATION, WE FIND THAT THE ASSESSEE HAS S HOWN NET PROFIT RATE OF 3.8% AND 5.1% IN THE A.YS. 2003-04 AND 2004-05, RESPECTIVELY..KEEPING IN VIEW THE NATURE OF THE ASSESSEES BUSINESS, MORE THAN FOUR TIMES INCREASE IN TURNOVER /RECEIPTS VIS--VIS BETTER NET PROFIT RATE SHOWN BY THE ASSESSEE AS COM PARED TO IMMEDIATELY PRECEDING YEAR, WE THINK IT APPROPRIATE TO APPLY RA TE OF 5.5% IN THE A.Y. 2004-05. ACCORDINGLY, THE ASSESSING OFFICER IS DIRECTED TO R E-WORK OUT THE PROFIT FROM TRANSPORT BUSINESS IN THE A.Y. 2004 -05 BY APPLYING NP RATE OF 5.5% IN PLACE OF NP RATE OF 8% APPLIED BY H IM. WE DIRECT ACCORDINGLY. [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 79 2. ASSESSEE PRAYS THAT INCOME FROM TRUCK PLYING HAS BE EN REPORTED IN THE RETURN AT RS. 10,00,000 WHICH COMES TO 6.95% OF THE TOTAL GROSS RECEIPTS OF RS. 1,43,91,687. [PB 01 AND 14] 3. CONSIDERING THE FINDING GIVEN BY THE HONBLE ITAT I N ASSESSEES OWN CASE FOR THE IMMEDIATELY PRECEDING YEAR I.E. AY 2004-05 FOR APPLYING NP OF 5.5% INSTEAD OF 8%, THE NP RATE OF 6.95% ALREADY RE TURNED BY THE ASSESSEE IS OUGHT TO BE RETAINED AND ACCEPTED. THE ADDITION MADE OF RS. 1,51,334 BY APPLYING 8% BY THE LD. AO AND SUSTAINED BY LD. CIT(A) BE DELETED. D. DIRECTION GIVEN BY HONBLE BENCH IN THE HEARING FIX ED ON 03.10.2018 1. IN THE HEARING FIXED ON 03.10.2018HONBLE BENCH GAV E A DIRECTION TO LD. CIT(DR) TO SUBMIT REPORT OF ASSESSING OFFICER IN TH E CASE OF MOHD. ATIQUE AND MOHD. SHAFIQUE. VIDE LETTER DATED 01.02.2019, LD. CIT(DR) PROVIDED THE COPIES OF PAGE 262 AND 263 & 274 TO 278. IT IS PERTINENT TO MENTION HERE THAT PAGE 262 AND 2 63 & 274 TO 278 ARE NOT RELATED TO ASSESSEE I.E. MOHD. SHAFIQUE . PAGE 262 AND 263 IS THE AFFIDAVIT OF MOHD. ATIQUE TO OBTAIN LICENSE FOR USE OF REVOLVER.AND HAS ALREADY BEEN CO NSIDERED BY THE HONBLE CO-ORDINATE BENCH VIDE ORDER DATED 31.01.20 13 AT PB 377 INTERNAL PAGE 6 PARA 6. PAGE 274 TO 278 IS THE PARTNERSHIP DEED FOR THE BUSINESS RUN UNDER THE NAME AND STYLE OF M/S. S T DEVELOPERS. AS SESSEE I.E. MOHD.SHAFIQUE IS NOT A PARTY TO THIS DEED BOTH THE ABOVE REFERRED DOCUMENTS NEITHER BELONGS T O NOR PERTAINS TO ASSESSEE I.E. MOHD. SHAFIQUE. [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 80 CONSIDERING THE ABOVE FACTS, CIRCUMSTANCES OF THE C ASE, SUBMISSIONS MADE, DOCUMENTS ON RECORD AND JUDICIAL PRECEDENCE, APPEAL OF THE ASSESSEE MAY PLEASE BE ALLOWED BY DELETING THE ADDITIONSMADE BY THE LD. AO AND SUSTAINED BY THE LD. CIT(A). SUBMITTED. AUTHORISED REPRESENTATIVE 61. LD. D.R. OPPOSED THESE SUBMISSIONS AND SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. IDENTICAL GROU ND WAS RAISED IN GROUND NO.1 OF ADDITIONAL GROUNDS IN IT(SS)A NO.37/IND/2016. FOR THE SAME REASONING, ADDITIONAL GROUND RAISED IN THIS APPEAL IS DISMISSED. 62. NOW COMING TO GROUND NO.1 OF THE ASSESSEES APPEAL , IT IS AGAINST SUSTAINING ADDITION OF RS.2 LAKHS. LD. COUNS EL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE I N THE WRITTEN SUBMISSIONS. LD. COUNSEL SUBMITTED THAT IT IS STATED THAT A CONFIRMATION LETTER WAS RECEIVED FROM ANEE S AHMED POST ASSESSMENT. HOWEVER, THE SAME WAS PLACED BEFORE THE LD. CIT(A), WHICH WAS NOT CONSIDERED BY H IM. [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 81 HE SUBMITTED THAT IN THE INTEREST OF JUSTICE, THE LD . CIT(A) OUGHT TO HAVE ADMITTED THIS. 63. PER CONTRA, LD. D.R. OPPOSED THESE SUBMISSIONS AN D SUPPORTED THE ORDER OF THE LD. CIT(A) AND THE ASSESSM ENT ORDER. 64. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IT WAS INCUMBENT UPON THE ASSESSEE TO PROVE GENUINENESS OF THE TRANSACTIONS, IDE NTITY AND CREDITWORTHINESS OF THE CREDITORS. THE ASSESSEE HAS FAILED TO DISCHARGE ONUS AS PLACED ON HIM TO PROVE. THEREFORE, WE DO NOT SEE ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A) AND THE SAME IS HEREBY AFFIRMED. 65. GROUND NOS.2 & 3 ARE INTER-RELATED. THE SIMILAR GROUND WAS RAISED IN IT (SS)A NO.37/IND/2016. SINCE THE PARTIES HAVE ADOPTED THE SAME ARGUMENT TAKING A [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 82 CONSISTENT VIEW, WE DIRECT THE A.O. TO COMPUTE NET PROFIT @ 5.5%. 66. NOW WE TAKE UP IT(SS)A NO.125/IND/2016 FOR THE A .Y. 2007-08. THE ONLY EFFECTIVE GROUND IS GROUND NO.1, WHICH READS AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ORDER OF ASSESSI NG OFFICER THAT THE APPELLANT DEPOSITED RS.45,000/- IN THE BANK A/C S OF FAREEDA SULTAN AND TREATING THE SAME AS UNEXPLAINABLE AND C ONFIRMING THE ADDITION OF RS.45,000/- TOWARDS THE SAME IN THE HANDS OF THE APPELLANT. 67. LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE IN THE WRITTEN SUBMISSIONS WHIC H READS AS UNDER: SUBMISSION: 1. IN THE CASE OF FAREEDA SULTANA, WIFE OF ASSESSEE, S HE SUBMITTED THAT THE AMOUNTS WERE DEPOSITED BY HER OUT OF HER SAVING S OF THE LAST MANY YEARS. HER HUSBAND (ASSESSEE I.E. MOHD. SHAFIQUE) USED TO GIVE HER MONEY FOR HOUSEHOLD EXPENSES OUT OF WHICH SHE SAVED SOME MONEY EVERY MONTH. IT IS OUT OF THESE SAVINGS THAT THE A MOUNT OF RS.45,000/- WAS DEPOSITED. 2. IN VIEW OF THE ABOVE IT IS SUBMITTED THAT THE ADDIT ION MADE MAY PLEASE BE DELETED. IN THE HEARING FIXED ON 3.10.2018 HON'BLE BENCH GAV E A DIRECTION TO LD. CIT(DR) TO SUBMIT REPORT OF ASSESSING OFFICER IN TH E CASE OF MOHD. ATIQUE AND MOHD. SHAFIQUE. VIDE LETTER DATED 1.2.2019, LD. CIT(DR) PROVIDED TH E COPIES OF PAGE 262 AND 263 & 274 TO 278. [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 83 IT IS PERTINENT TO MENTION HERE THAT PAGE 262 AND 2 63 & 274 TO 278 ARE NOT RELATED TO ASSESSEE I.E. MOHD. SHAFIQUE. PAGE 262 AND 263 IS THE AFFIDAVIT OF MOHD. ATIQUE T O OBTAIN LICENSE FOR USE OF REVOLVER AND HAS ALREADY BEEN CONSIDERED BY THE HON'BLE COORDINATE BENCH VIDE ORDER DATED 31.1.2013 AT PAPE R BOOK 377 INTERNAL PAGE 6 PARA 6. PAGE 274 TO 278 IS THE PARTNERSHIP DEED FOR THE BUS INESS RUN UNDER THE NAME AND STYLE OF M/S. ST DEVELOPERS. ASSESSEE I.E . MOHD. SHAFIQUE IS NOT A PARTY TO THIS DEED. BOTH THE ABOVE REFERRED DOCUMENTS NEITHER BELONGS T O NOR PERTAINS TO ASSESSEE I.E. MOHD. SHAFIQUE. CONSIDERING THE ABOVE FACTS, CIRCUMSTANCES OF THE C ASE, SUBMISSIONS MADE AND DOCUMENTS ON RECORD, APPEAL OF THE ASSESSE E MAY PLEASE BE ALLOWED BY DELETING THE ADDITION MADE BY THE LD. A. O. AND SUSTAINED BY THE LD. CIT(A). SUBMITTED AUTHORISED REPRESENTATIVE. 68. LD. D.R. OPPOSED THESE SUBMISSIONS. 69. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE MONEY CRE DITED TO IN THE ACCOUNT OF WIFE OF THE ASSESSEE AMOUNTING TO RS.45,000/- HAS BEEN ADDED TO THE INCOME OF THE ASSES SEE. IN OUR VIEW, THE A.O. WAS NOT JUSTIFIED TO MAKE ADDITI ON IN THE HANDS OF THE ASSESSEE. WITHOUT CONSIDERING THE F ACT THAT SUCH A SMALL AMOUNT COULD BE SAVING FROM THE GIFTS, ETC. THEREFORE, WE DIRECT THE A.O. TO DELETE THIS AD DITION. [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 84 70. APPEAL FILED BY THE ASSESSEE IN IT(SS)A NO.125/IND/2016 IS ALLOWED. 71. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE I N IT(SS)A NOS.30 TO 36/IND/2016 ARE PARTLY ALLOWED, THE APPEALS FILED BY THE ASSESSEE IN IT(SS)A NOS.37 TO 39/IND/2016 ARE PARTLY ALLOWED, THE APPEALS FILED BY TH E ASSESSEE IN IT(SS)A NOS.40 TO 42/IND/2016 ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES, THE APPEAL FILED BY TH E ASSESSEE IN IT(SS)A NO.124/IND/2016 IS PARTLY ALLOWED AND THE APPEAL FILED BY THE ASSESSEE IN IT(SS)A NO.125/IND/2016 IS ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 30. 04.2019. SD/- (MANISH BORAD) SD/- (KUL BHARAT) A CCOUNTANT MEMBER JUDICIALMEMBER INDORE; DATED : 30/04/2019 VG/SPS [IT(SS)A NOS.30 TO 36/IND/2016; IT(SS)A NOS.37 TO 4 2/IND/2016 &IT(SS)A NOS.124 & 125/IND/2016] [MD. ATIQUE, MD. SHAKEEL & MD. SHAFEEQ, BHOPAL] 85 COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE