Smt. Sheetal Agarwal, Indore V. THE DCIT CIRCLE 1(2), Bhopal

ITSSA 172/IND/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5218 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 4 month(s) 21 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 06-02-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 27-12-2018
• Assessment Year: 2006-2007
• Appeal Filed On: 15-09-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASHIMA GUPTA
• Assessee Lawyers: S S SHEETAL
• Keywords: Unexplained cash credit; Search and seizure; Loose papers; Opportunity of being heard; Principle of natural justice; Peak credit; Accommodation entries; Onus to prove
• Section: 68; 69; 263; 132; 69C; 143(3); 153A; 143(1)

Judgement Text

[IT(SS)A NO.6/IND/2015, IT(SS)A NOS.171, 172 & 176/ IND/2016] [SHRI SUNIL AGARWAL & SMT. SHEETAL AGARWAL, INDORE] , , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER IT(SS)A NO.6/IND/2015 & IT(SS)A NO.171/IND/2016 ASSESSMENT YEAR: 2002-03 & 2005-06 RESPECTIVELY SHRI SUNIL AGARWAL 16-1, KRISHNAKUNJ, RACE COURSE ROAD, INDORE / VS. THE DCIT CIRCLE-1(2) BHOPAL ( APPELLANT ) ( REVENUE ) P.A. NO. ABFPA5007R IT(SS)A NO.172 & 176/IND/2016 ASSESSMENT YEAR: 2006-07 & 2005-06 RESPECTIVELY S MT. SHEETAL AGARWAL 16-1, KRISHNAKUNJ, RACE COURSE ROAD, INDORE / VS. THE DCIT CIRCLE-1(2) BHOPAL (APPELLANT) (REVENUE ) P.A. NO. ADKPA6037A APPELLANT BY SHRI S.S. SHEETAL, A.R. RESPONDENT BY SMT. ASHIMA GUPTA, DR DATE OF HEARING: 27.12.2018 DATE OF PRONOUNCEMENT: 06.02.2019 [IT(SS)A NO.6/IND/2015, IT(SS)A NOS.171, 172 & 176/ IND/2016] [SHRI SUNIL AGARWAL & SMT. SHEETAL AGARWAL, INDORE] 2 / O R D E R PER KUL BHARAT, J.M: THIS BUNCH OF FOUR APPEALS PERTAINING TO TWO DIFFEREN T ASSESSEES AGAINST DIFFERENT ORDERS OF THE LD. CIT(A) R ELATED TO ASSESSMENT YEARS 2002-03, 2005-06 & 2006-07 RESPECTIVELY. ALL THE APPEALS WERE TAKEN UP TOGETHER FOR HEARING AND ARE BEING DISPOSED OF BY WAY OF A CONSOLIDAT ED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 2. FIRST WE TAKE UP IT(SS)A NO.171/IND/2016 (SUNIL AGARWAL). THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AND IN LAW, THE HON'BLE COMMISSIONER OF INCOME TAX (APPEALS)-2, BHO PAL FAILED TO APPRECIATE THAT THE ASSESSMENT ORDER DATED 31.12.20 09 PASSED U/S 153A R.W.S. 143(3) OF THE INCOME TAX ACT 1961, BY T HE LEARNED DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 1(2) BHOPA L IS ILLEGAL AND BAD IN LAW. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AND IN LAW, THE HON'BLE COMMISSIONER OF INCOME TAX (APPEALS)-2, BHO PAL ERRED IN CONFIRMING THE ADDITION OF RS.21,15,000/- TO THE RE TURNED INCOME WITHOUT CONSIDERING THE FACTS THAT NO INCRIMINATING DOCUMENTS WERE FOUND DURING THE COURSE OF SEARCH FOR SUBJECTED ADD ITION AND NO [IT(SS)A NO.6/IND/2015, IT(SS)A NOS.171, 172 & 176/ IND/2016] [SHRI SUNIL AGARWAL & SMT. SHEETAL AGARWAL, INDORE] 3 ASSESSMENT COULD BE SAID TO BE PENDING AS ON THE DATE OF INITIATION OF SEARCH. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AND IN LAW, THE HON'BLE COMMISSIONER OF INCOME TAX (APPEALS)-2 BHOP AL ERRED IN CONFIRMING/UPHOLDING THE ADDITION OF RS.21,15,000/- TO THE RETURNED INCOME OF THE APPELLANT BY TREATING THE DEPOSITS IN A THIRD PARTY BANK A/C (M/S. OPTIMATE TEXTILE LTD.) AS UNEXPLAINE D CASH DEPOSIT IN THE CASE OF THE APPELLANT. 4. WITHOUT PREJUDICE TO THE ABOVE GROUNDS, ON THE FACT S AND IN THE CIRCUMSTANCES OF THE CASE, AND IN LAW, THE HON'BLE COMMISSIONER OF INCOME TAX (APPEALS)-2, BHOPAL ERRED IN NOT ALLOWIN G THE BENEFIT OF PEAK THEORY/MONEY CIRCULATION BENEFIT/ROTATION/RECYCLING/CHAIN/TELESCOPING BENEFI T OR THE CREDIT OF THE AMOUNTS WITHDRAWN FROM BANK PRIOR TO THE ALLEGE D DEPOSITS OR THE BENEFIT OF THE AMOUNTS ALREADY ASSESSED TO TAX IN EARLIER YEARS. 5. THE APPELLANT CRAVES LEAVE TO ADD/ALTER/AMEND THE A BOVE GROUNDS OF APPEALS IF AND WHEN NECESSITY OR OCCASION ARISES . 3. THE FACTS GIVING RISE TO THE APPEAL ARE THAT A SEARCH AND SEIZURE ACTION U/S 132 OF THE INCOME TAX ACT, 196 1 (HEREINAFTER CALLED AS THE ACT) WAS CONDUCTED AT THE RESIDENTIAL PREMISES OF SHRI SUNIL AGARWAL ON 7.9.2007 . DURING THE COURSE OF SEARCH AND SEIZURE ACTION, CERTAIN LOOSE PAPERS, DOCUMENTS, VALUABLE BOOKS OF ACCOUNTS WE RE FOUND AND SEIZED. A NOTICE U/S 153A OF THE ACT WAS ISSUED TO THE ASSESSEE. IN RESPONSE TO THE SAME, ASSESSEE F ILED A RETURN OF INCOME ON 29.9.2009 DECLARING TOTAL INCOME OF [IT(SS)A NO.6/IND/2015, IT(SS)A NOS.171, 172 & 176/ IND/2016] [SHRI SUNIL AGARWAL & SMT. SHEETAL AGARWAL, INDORE] 4 RS.1,36,600/-. THE ASSESSING OFFICER (IN SHORT A. O.) OBSERVED THAT THERE WERE CASH DEPOSITS IN THE BANK ACC OUNT OF M/S. OPTIMATE TEXTILE LTD. THIS COMPANY IS CONTRO LLED BY THE ASSESSEE. IT WAS NOTICED THAT AS PER THE SEIZED DOCUMENT BEARING NO.LPS-5 THAT ACCOMMODATION ENTRY WAS GIVEN THROUGH THIS ACCOUNT AND COMMISSION WAS CHARGED. THE A.O. THEREFORE AFTER CONSIDERING SUBMISSIONS MAD E ADDITION OF THIS AMOUNT. AGAINST THIS, THE ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A) WHO CONFIRMED TH E VIEW OF THE A.O. AND DISMISSED THE APPEAL. NOW THE ASSESSEE IS IN FURTHER APPEAL BEFORE THIS TRIBUNAL. 4. GROUND NO.1 IS AGAINST LEGALITY OF THE NOTICE U/S 1 53A OF THE ACT. LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE IN THE WRITTEN SYNOPSIS. THE SUBMISSIONS OF THE ASSESSEE ARE AS UNDER: 3.1 THE LEGALITY OF THE IMPUGNED ASSESSMENT HAS MORE THAN ONE ASPECTS AND CONSEQUENTIAL IMPLICATIONS. THE FIRST AND TH E FOREMOST ASPECT IS THAT THE ASSESSMENT MADE IS DEVOID OF BASIC JURISDICTION. [IT(SS)A NO.6/IND/2015, IT(SS)A NOS.171, 172 & 176/ IND/2016] [SHRI SUNIL AGARWAL & SMT. SHEETAL AGARWAL, INDORE] 5 WITHOUT PREJUDICE TO THE INVALIDITY OF THE IMPUGNED ASSESSMENT DUE TO NON- APPLICATION OF MIND AND UTTER LACK OF J URISDICTION ON THE PART OF THE AO AS IN THE FOLLOWING PARA, THE IMPUGNED ASSESSMENT IS INVALID DUE TO ANOTHER SERIOUS LAPSE ON THE PART OF THE AO. THE FACTUAL MATRIX ON W HICH THIS ASPECT OF THE LEGAL GROU ND IS BASED INVOLVES THE FOLLOWING L EGAL AND FACTUAL POSITIONS RESPECTIVELY: (A) LEGAL NECESSITY TO ASSUME JURISDICTION FOR P ASSING ORDER U/S 153A : SECTION 153D PRESCRIBES THE CONDITI ON PRECEDENT, WHICH MUST BE FULFILLED BEFORE AN AO BELOW THE RANK OF A JOINT COMMISSIONER COULD PASS ANY ORDER OF ASSESSMENT OR REASSESSMENT U/S 153A(1)(B), IN THE FOLLOWING WO RDS: PRIOR APPROVAL NECESSARY FOR ASSESSMENT IN CASES O F SEARCH OR REQUISITION. 153D. NO ORDER OF ASSESSMENT OR REASSESSMENT SH ALL BE PASSED BY ANY ASSESSING OFFICER BELOW THE RANK OF JO INT COMMISSIONER IN RESPECT OF SUCH ASSESSMENT YEAR REFERRED TO IN CLAU SE (B) OF SUB SECTION (1) OF SECTION 153A OR THE ASSESSMENT YEAR REFERRED TO IN CLAUSE (B) OF SECTION (1) OF 153B, EXCEPT WITH TH E PRIOR APPROVAL OF THE JOINT COMMISSIONER. THE PHRASEOLOGY OF NOT ONLY THE TE XT OR THE OPERATIVE PART OF SECTION BUT ALSO THE TITLE OF THE SECTION IS UNQUESTIONABLY M ANDATORY AND NOT AT ALL DIRECTORY LEAVING ANY DISCRETION TO AN AO BELOW THE RANK OF JOINT COMMISSIONER WHETHER OR NOT TO OBSERVE AND COMPLY WITH THE REQUIREMENTS OF SECTION 153D. SUCH AN ASSESSING OFFICER HAS PROHIBITED FROM PASSING AN ASSESSMENT ORDER EXCEPT WITH THE PRIOR APPROVAL OF JOINT COMMISSIONER. THEREFORE, ANY ORDER PASSED WITHOUT PRIOR APPROVAL OF JOINT COMMISSIONER IS NULL AND VOID IN THE EYE OF LAW HAVING BEEN PASSED WITHOUT JURISDICTION. THE ABOVE PRINCIPLES OF LAW ARE CLEARLY APPLICABLE ON THE FOLLOWING FACTUAL MATRIX OF THE APPELLANTS CASE : THE FACTUAL MATRIX: (I) THE IMPUGNED ASSESSMENT ORDER PURPOR TS TO HAVE BEEN PASSED WITH THE PRIOR APPROVAL DTD. 31-12-2009 OF THE ADDTL . CIT RANGE-1, BHOPAL VIDE LAST PARA ON PAGE 4 OF THE SAID ORDER. THE TOTAL INCOME HAS BEEN DETERMINED AT RS.22,51,600/-. (II) THE SAID IMPUGNED ASSESSMENT ORDER ITSELF ALS O PURPORTS TO HAVE BEEN PASSED ON 31-12-2009 VIDE S.NO. 9 OF THE FOR MAT ON PAGE 1 OF THE SAID ORDER. (III) THE DEMAND NOTICE ISSUED U/S 156 SHOWING TH E SUM PAYABLE AT RS. 8,15,868/- IN CONSEQUENCE OF THE IMPUGNED ASS ESSMENT ORDER DTD.31-12- 2009 PURPORTS TO HAVE BEEN ISSUED ON 30-12-2 009, AND [IT(SS)A NO.6/IND/2015, IT(SS)A NOS.171, 172 & 176/ IND/2016] [SHRI SUNIL AGARWAL & SMT. SHEETAL AGARWAL, INDORE] 6 (IV) THE SUM PAYABLE AS PER THE DEMAND NOTICE DTD. 30-12-2009 AT RS. 8,15,868/- WORKS OUT ON A TOTAL INCOME AS SESSED AT S.NO. (I) ABOVE AS PER THE IMPUGNED ASSESSMENT ORDER DTD. 31- 12-2009. IT IS CLEAR FROM THE DEMAND NOTICE ISSUED U /S 156 OF THE ACT FOR TAX AND INTEREST PAYABLE IN CONSEQUENCE OF ORDER PASSED U/S 153A THAT THE DEMAND NOTICE HAS BEEN ISSUED ON 30-12-2009, WHICH FULLY PROVES THE FACT THAT THE TOTAL INCOME OF THE APPELLANT AND TAX PAYABLE THEREON HAD ALREADY BEEN DETERMINED BY THE AO ON 30-12-2009 ITSELF WIT HOUT THE APPROVAL OF THE JOINT COMMISSIONER. THE SO CALLED APPROVAL OBTAINED FROM THE ADDTL. COMMISSIONER OF INCOME TAX, RANGE-1,BHOPAL VIDE HER APPROVAL DATED 31- 12-2009-F.NO.ADDTL.CIT/R-1/BPL/153D/2009-10/630 IS NOTHING BUT AN EYE WASH. IT IS PERTINENT TO MENTION HERE THA T THE AMOUNT OF TAX AND INTEREST PAYABLE AS SHOWN IN THE DEMAND N OTICE SO ISSUED IS FULLY COMMENSURATE AND COMPATIBLE WITH THE TOTAL IN COME AS DETERMINED VIDE ORDER PASSED U/S 153A ON 31-12-2009. THIS SUPPORTS THE CONTENTION OF THE APPELLANT THAT THE DEMAND NOTICE WAS ISSUED ON 30-12-2009 FOR THE TAX AND OTHER SUMS PAYABLE ON THE AMOUNT OF INCOME WHICH ALREADY STOOD DETERMINED IN SUBSTANCE ON 30-12-2009 AND WAS SUBSEQUENTLY AND COLOURABLY SHOWN TO HAVE BEEN DETERMINED BY RESPECTIVE ORDER DATED 31-12- 2009 IN FORM. THUS, THE IMPUGNED ORDER PASSED BY THE LD.AO IS COLOURABLE EXERCISE OF POWER, PASSED WITHOUT JURISDICTIO N AND WITHOUT APPLICATION OF MIND. 5. LD. COUNSEL SUBMITTED THAT THE NOTICE OF DEMAND DATED 30.12.2009 WHERE AS APPROVAL BY THE ADDL. COMMISSIONER IS DATED 31.12.2009. IT IS CONTENDED T HAT THERE WAS NON APPLICATION OF MIND BY THE ADDL. COMMISSIONER OF INCOME TAX. 6. LD. D.R. OPPOSED THE SUBMISSIONS OF THE LD. COUN SEL FOR THE ASSESSEE AND SUPPORTED ORDERS OF THE AUTHORITI ES BELOW. IN RESPECT OF THE CONTENTION OF THE ASSESSEE THAT THE [IT(SS)A NO.6/IND/2015, IT(SS)A NOS.171, 172 & 176/ IND/2016] [SHRI SUNIL AGARWAL & SMT. SHEETAL AGARWAL, INDORE] 7 DEMAND NOTICE WAS DATED 30.12.2009 WHEREAS LD. D.R. SUBMITTED THAT AS PER THE RECORDS IT WAS DATED 31.12.20 09 AS PER THE REGISTER THERE MAY BE A TYPOGRAPHICAL ERROR IN THE NOTICE OF DEMAND. THIS TYPOGRAPHICAL ERROR WOULD NOT VITIATE THE PROCEEDINGS. HE SUBMITTED THAT AT THE MOS T NOTICE OF DEMAND MAY BE ERRONEOUS BUT THAT WOULD NOT BE THE BASIS TO DECLARE THE PROCEEDINGS AS ILLEGAL. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE HAVE PERUSED THE RECORD S PLACED BEFORE US. FROM THE PERUSAL OF RECORDS, WE FI ND MERIT INTO THE CONTENTION OF THE LD. D.R. THAT THERE WAS A TYPOGRAPHICAL ERROR IN THE NOTICE OF DEMAND. THEREFO RE, WE DO NOT SEE ANY REASON TO INTERFERE WITH THE ORDER OF THE LD. CIT(A) ON THIS GROUND. THE GROUND RAISED BY THE ASSE SSEE IS DISMISSED. [IT(SS)A NO.6/IND/2015, IT(SS)A NOS.171, 172 & 176/ IND/2016] [SHRI SUNIL AGARWAL & SMT. SHEETAL AGARWAL, INDORE] 8 8. GROUND NOS.2 & 3 ARE IN RESPECT OF THE ADDITION MAD E BY THE A.O. AND SUSTAINED BY THE LD. CIT(A) OF RS.21,15,000/- IN RESPECT OF THE DEPOSIT IN THE BANK ACCOUNT OF M/S. OPTIMATE TEXTILE LTD. LD. COUNSEL FO R THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE IN THE WR ITTEN SUBMISSIONS. THE SUBMISSIONS OF THE ASSESSEE ARE AS UNDER: GROUND NO. 2 : ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE , AND, IN LAW, THE HON'BLE COMMISSIONER OF INCOME TAX (APPEAL)-2 BHOPAL ERRED IN CONFIRMING THE ADDITION OF RS. 21, 15,000/- TO THE RETURNED INCOME WITHOUT CONSIDERING THE FACTS THAT NO INCRIMINATING DOCUMENTS WERE FOUND DURING THE COURSE OF SEARCH FOR SUBJECTED ADDITION AND NO ASSESSMENT COULD BE SAID TO PENDING AS ON THE DATE OF INITIATION OF SEARCH. SUBMISSIONS: 4.0 WITHOUT PREJUDICE TO THE ABOVE SUBMISSIONS, IT IS IMPORTANT TO NOTE THAT ALL REASSESSMENTS SUCH AS U/S 147, 263 ETC. HAVE TO BE MADE WITHIN WELL DEFINED LIMITS SUBJ ECT TO SATISFACTION OF PRE CONDITIONS AND THEREFORE SIMILAR LIMITAT ION MAY HAVE BE READ IN THE INSTANT PROVISION (153A). THEREFORE MAKING ANY ASSESSMENT WHICH IS ALREADY COMPLETED WILL ALSO REQUIRE THE SATISFACTION OF PRE CONDITIONS AS CONTEMPLATED IN SECTION 153A, ITS FIRST PROVISO, ITS SECOND PROVISO READ WITH SECTION 132. THE ASSESS MENT U/S 153A DEALS WITH SEARCH CASES THEREFORE THE CONCEPT OF UND ISCLOSED INCOME U/S 132(1)( C) WILL COME INTO PICTURE. THE SECOND PROVISO TO SECTION 153 IS INTENDED TO AVOID TWO ASSESSMENTS FOR THE SAME YEAR. THEREFORE PROPER CONSTRUCTION WOULD BE THAT IN RESPECT OF COMPLETED ASSESSMENTS, THE ASSESSMENT SHALL BE MADE ONLY [IT(SS)A NO.6/IND/2015, IT(SS)A NOS.171, 172 & 176/ IND/2016] [SHRI SUNIL AGARWAL & SMT. SHEETAL AGARWAL, INDORE] 9 IF INCRIMINATING DOCUMENTS ARE FOUND. THEREFORE THE TERM ASSESS AND REASSESS APPEARING IN SECTION 153A(I)(B) MEANS THAT ASSESSMENT SHALL BE MADE IN CASE OF PENDING ASSESSMENTS AND REASSESSMENTS SHALL BE MADE IN RESPECT OF CO MPLETED ASSESSMENTS WHERE INCRIMINATING MATERIAL IS FOUND. IN SUPPO RT OF THE ABOVE, WE HAVE THE FOLLOWING DECISIONS: CIT VS. SMT. SHAILA AGARWAL ALLAHABAD HIGH C OURT 204 TAXMAN 276 ALL CARGO GLOBAL LOGISTICS LTD. VS. DCIT ITAT MUMBAI SPECIAL BENCH. (2012) 137 ITD 287 (SB) (MUM.) SECOND PROVISO TO SECTION 153A USES THE WORDS PENDING ON THE DATE ON INITIATION OF SEARCH AND PROVIDES THAT ASSESSMENT SO PENDING SHALL ABATE. THE PROVISION DOES NOT USE THE WORDS COMPLETED ASSESSMENT THEREFORE , ISSUES WHICH STANDS CONCL UDED IN ASSESSMENTS MADE EARLIER SHALL CONTINUE TO REMAIN INTACT. THE HONBLE SUPREME COURT IN THE CASE OF PARSHURAM POTTERY WORKS CO. LTD. VS. ITO CIRCLE-1 WARD A RA JKOT 106 ITR 1 (SC) OBSERVED THAT : IT HAS BEEN SAID THAT THE TAXES ARE THE PRICE THAT WE PAY FOR CIVILIZATION. IF SO, IT IS ESSEN TIAL THAT THOSE WHO ARE ENTRUSTED WITH TH E TASK OF CALCULATING AND REALIZING THAT PRICE SHOULD FAMILIARIZE THEMSELVES WITH THE RELEVANT PROVISIONS AND BECOME WELL VERSED WITH THE LAW ON THE SUBJECT. ANY REMI SSNESS ON THEIR PART CAN ONLY BE AT THE COST OF THE NATIONAL E XCHEQUER AND MUST NECESSARILY RESULT IN LOSS OF REVENUE. AT THE SAME TIME, WE HAVE TO BEAR IN MIND THAT THE POLICY OF LAW IS THAT TH ERE MUST A POINT OF FINALITY IN ALL LEGAL PROCEEDINGS, THAT STALE ISSUES SHOULD NOT BE REACTIVATED BEYOND A PARTICULAR STAGE AND THAT LAPSE OF TIME MUST INDUCE REPOSE IN AND SET AT REST JUDICIAL AND QUASI JUDICIAL CONTROVERSIES AS IT MUST IN OTHER SPHERES OF HUMAN ACTIVITY. HONBLE ITAT DELHI BENCH IN THE CASE OF PACL INDIA LTD. VS. DEPARTMENT OF INCOME TAX IN APPEAL NO. ITA NO. 2637/DEL/2010 HELD THAT : A) DURING THE COURSE OF SEARCH NOT A S INGLE PIECE OF EVIDENCE WAS FOUND WHICH DEPICTS THAT ANY INCOME WH ICH HAS BEEN EARNED BY THE APPELLANT HAS NOT BEEN DISCLOSED. B) THERE IS NO REFERENCE TO ANY MATERIA L SO FOUND WHILE COMPUTING THE INCOME U/S 153A OF THE INCOME TAX ACT. C) NO ASSESSMENT WAS PENDING ON THE DAY OF SEA RCH. THE CASE OF ALCARGO GLOBAL LOGISTICS LTD. VS. DCIT 137 ITD 287 (MUM) (SB) FOLLOWED IN THE CASE OF GURINDER SINGH BAWA VS. CIT : [IT(SS)A NO.6/IND/2015, IT(SS)A NOS.171, 172 & 176/ IND/2016] [SHRI SUNIL AGARWAL & SMT. SHEETAL AGARWAL, INDORE] 10 WHEN NO ASSESSMENT HAS ABATED , ASSESSMENT U/S 153A CAN BE MADE ONLY ON THE BASIS OF INC RIMINATING MATERIAL FOUND DURING SEARCH. TIME LIMIT FOR ISSUE OF NOTI CE U/S 143(2) HAS EXPIRED ON THE DATE OF SEARCH, THERE WAS NO ASSESS MENT PENDING AND AS SUCH THERE WAS NO QUESTION OF ABATEMENT OF A SSESSMENT. AN ADDITION IN ASSESSMENT U/S 153A COULD BE MADE ONLY ON THE BASIS OF INCRIMINATING MATERIAL FOUND DURING SEARCH. SECTION 153A DOES NOT CONFER ANY ARBITRARY OR UNBRIDLED POWER ON THE AO. IN ITA NO. 707, 709 AND 713 OF 2014 FOR AY 02-03, 05-06 AND 06-07, IN THE CASE OF CIT (CENTRAL) - III (APPELLANT) VS. KABUL CHAWLA (RESPONDENT) THE HONBLE DELHI HIGH COURT HAS RULED THAT WHERE ON THE DATE OF SEARCH, ASSESSMENT STANDS COMPLETED AND NO INCRIMINATING MATERIAL WAS UNEARTHED, NO ADDITIONS CAN BE MADE TO THE INCOME ALREADY ASSESSED. IN THE CASE OF CIT VS. M/S MURLI AGRO PRODUCTS LTD. THE HONBLE BOMBAY HIGH COURT IN ITA NO. 36 OF 2009 VIDE ITS ORDER DATED 29/10/10 HAS CLEARLY STATED THAT ONCE THE A SSESSMENT HAS OBTAINED FINALITY BEFORE THE DATE OF SE ARCH AND NO MATERIAL IS FOUND IN THE COURSE OF PROCEEDINGS U/S 132(1), T HEN NO ADDITION CAN BE MADE IN THE PROCEEDINGS U/S 153A. THIS PROP OSITION HAS BEEN REITERATED BY THE HONBLE RAJASTAN HIGH COURT IN TH E CASE OF JAI STEEL (INDIA) VS. ACIT REPORTED IN (2013) 259 CTR (RAJ.) 281 IN THE CASE OF SANJAY AGGARWAL VS. DCIT IN ITA NO. 3184/DEL/ 2013 VIDE ITS ORDER DATED 16/06/14, THE HONBLE ITAT DELHI BENCH HAS HELD THAT ADDITION IN A SEARCH ASSESSMENT FOR A A.YR. WHICH IS NOT PENDING CAN BE MADE ONLY IF INCRIMINATING MATERIAL IS FOUND DURING SEARCH. IN THE CASE OF ANIL P. KHIMANI VS. DCIT (2010) 7 ITAT INDIA (MUM. ITAT) IN ITA NO. 2855/MUM/2008 HAS HELD : AN ASSESSMENT CAN BE SAID TO BE PENDING ONLY IF THE AO IS STATUTORILY REQUIRED TO DO SOMET HING FURTHER. IF U/S 143(2) NOTICE HAS BEEN ISSUED, THE ASSESSMENT IS PENDING. HOWEVER THE ASSESSMENT IN RESPECT OF A RETURN PROCESSE D U/S 143(1) IS NOT PENDING BECAUSE THE AO IS NOT REQUIRED TO DO ANYTHING FURTHER ABOUT SUCH A RETURN. FURTHER HELD THAT THE POWER G IVEN BY THE PROVISO TO ASSESS INCOME FOR SIX ASSESSMENT YEARS HA S TO BE CONFINED TO THE UNDISCLOSED INCOME UNEARTHED DURING SEARCH AND CANNOT INCLUDE ITEMS WHICH ARE DISCLOSED IN THE ORIGINAL ASSESSM ENT PROCEEDINGS. IN THE CASE OF LMJ INTERNATIONAL LTD. VS. DCIT 119 TTJ 21 4 (KOL.) IT HAS BEEN HELD THAT IF NO INCRIMINATING MATERIAL IS FOUND DURING THE COURSE OF SEARCH AND SEI ZURE IN RESPECT OF AN ISSUE, NO ADDITION [IT(SS)A NO.6/IND/2015, IT(SS)A NOS.171, 172 & 176/ IND/2016] [SHRI SUNIL AGARWAL & SMT. SHEETAL AGARWAL, INDORE] 11 CAN BE MADE IN ASSESSMENT U/S 153 A/C. IN THE CASE OF ACIT VS. SHRI GAURAV SHARMA IN APPEAL C ASE NO. IT(SS) A NOS. 216 & 217/IND/2013 VIDE O RDER DATED 20/11/14 THE HONBLE INDORE ITAT BENCH HAS ALSO TAKEN THE SIMILAR VIEW THAT SINCE NO INCRIMINATING MATERIAL HAS BEEN FO UND NO ADDITION CAN BE SUSTAINED. IN VIEW OF THE ABOVE SUBMISSIONS, THE ASSESSMENT ORDER PASSED U/S 153A R.W.S 143(3) IS BAD-IN-LAW. 4 .1 SUBMISSIONS ON MERITS : IT WAS EXPLAINED DURING THE ASSES SMENT PROCEEDINGS THAT THE DEPOSITS IN THE BANK A/C OF M/S OPT IMATE TEXTILES LTD. IN AXIS BANK WERE NOT RELATED TO THE APPELLA NT WHO WAS NEITHER A DIRECTOR NOR A SHAREHOLDER IN THE SAID COMPANY. THE REGISTERED OFFICE OF THE COMPANY WAS AT MUMBAI AND HOW COULD THE APPELLANT RUN THE COMPANY. WITHOUT PREJUDICE TO THE AB OVE IT WAS ALSO SUBMITTED THAT THE COMPANIES ARE SEPARATE LEGAL E NTITIES REGISTERED UNDER THE COMPANIES ACT, SEPARATELY ASSESSED TO IN COME TAX. THE ACCOUNTS OF COMPANIES ARE SUBJECT TO STATUTORY AUDI T AND ARE TO BE FILED REGULARLY WIT H THE ROC AND ALSO ALONG WITH TH E RETURNS OF INCOME. THE BANK A /C OF THE COMPANIES ARE DISCLOSED BANK A/CS SINCE FOR OPENING THE BANK A/C IN THE NAME OF THE COMPANY MANY FORMALITIES SUCH AS PAN OF THE COMPANY AS WELL AS OF T HE DIRECTORS, MEMORANDUM AND ARTICLE OF ASSOCIATION AND ITR COPY ETC. ALL ARE REQUIRED AND TH US THESE TRANSACTIONS/DEPOSITS CAN B E VERIFIED FROM THE BOOKS OF A /CS OF THE COMPANY. IT WAS ALSO REQUESTED THAT SUMMONS MAY KINDLY BE ISSUED TO THE MANAG EMENT OF THE COMPANY. SINCE THESE TRANSACTIONS WERE NOT RELATED TO THE APPELLANT AND THUS COULD IN NO WAY COULD BE ADDED TO THE TOTA L INCOME OF THE APPELLANT PARTICULARLY WHEN HE WAS NEITHER A DIRE CTOR OR A SHAREHOLDER NOR HAVING ANY CONTROL IN THE MANAGEMENT OF THE COMPANY. 4.2 THE AO SAYS THAT DURING TH E COURSE OF SEARCH AND SEIZURE ACTION AT THE RESIDENCE OF SHRI SUNIL AGARWAL VARIOUS DOCUMENTS WERE FOUND AND SEIZED. THERE IS NOT EVEN A WHISPER OF WHAT DOCUMENTS WERE FOUND AND SEIZED. 4.3 FURTHER THE AO SAYS THAT FROM THE RESIDENCE OF SHRI SUNIL AGRAWAL, VARIOUS DOCUMENTS WERE ALSO F OUND AND SEIZED WHICH INDICATE THAT HE WAS INVOLVED IN PROVIDING S HARE CAPITAL ENTRY USING BANK A/CS IN VARIOUS NAMES INCLUDING THE ONES DISCUSSED ABOVE FOR ROUTING MONEY TO ASSESSEE COMPANY. AGAIN NO SUCH DOCUMENTS HAVE EITHER BEEN POINTED OUT/ SPECIFIED BY TH E AO NOR HAVE BEEN CONFRONTED WITH TO THE APPELLANT. THUS THE ASSESS MENT ORDER IS A NON-SPEAKING ORDER. [IT(SS)A NO.6/IND/2015, IT(SS)A NOS.171, 172 & 176/ IND/2016] [SHRI SUNIL AGARWAL & SMT. SHEETAL AGARWAL, INDORE] 12 4.4 FURTHER THE AO HERSELF HAS NOT EVEN CONFRONTED THE APPELLANT WITH THESE BANK A /CS NOR ANY SUCH DETAILS W ERE CALLED FOR. THUS THIS ORDER IS PASSED WITHOUT APPLICATION OF MIND ON THE PART OF THE AO. 4.5 IT MAY KINDLY BE APPRECIATED THAT WITHOUT GIVING ANY OPPORTUNITY AND WITHOUT DISCHARGING HER [AO] PART OF ONUS, THE AO PASSED THE IMPUGNED ORDER MAKING SUCH ADDITION, IN VIOL ATION OF AUDI ALTERAM PARTEM LIMB OF THE PRINCIPLES OF NATURAL JUSTICE. IT MAY, KINDLY, THEREFORE, BE APPRECIATED THAT THE ADDITION SO MADE IS AGAIN ST THE PRINCIPLES OF NATURAL JUSTICE AND THUS DESERVES OUTRIGHT DELETION. 4.6 THE ASSESSING OFFICER ADOPTED THE ALL EGED FIGURES OF DEPOSITS ITSELF AS ASSESSABLE INCOME. IT IS WELL SETTL ED LAW THAT ONLY REAL INCOME OF AN ASSESSEE CAN BE SUBJECTED TO TAX EXCEPT THROUGH A FICTION OF LAW (LIKE SECTION 68, 69, 69A, 69B, 6 9C AND 132(4) ETC. ). CONSIDERING THE FACTS OF THE CASE, THE AO FAI LED TO ESTABLISH UNDER WHICH SECTION THESE ADDITION HAVE BEEN MADE OR HO W THESE ADDITIONS ARE ATTRACTED TO THE CASE OF THE APPELLANT. 4.7 WITHOUT PREJUDICE TO THE ABOVE SUBMISS IONS IT IS SUBMITTED THAT EVEN ON THE PRESUMPTIONS OF THE AO O NLY THE REAL INCOME THEORY IS THE ONLY BASIS FOR MAKING ANY ADDITION ON THE FACTS AND IN TH E CIRCUMSTANCES OF THE CASE OF T HE ASSESSEE. ON THE CHARGES AS ALLEGED BY THE AO ONLY THE FRUITS OF SUCH ACCOMMODATION TRANSACTIONS, IN FACT AND IN LAW, ARE ASSESSABLE IN THE HANDS OF THE ASSESSEE AND NOTHING MORE OR LESS. IN ORDER TO TAX A N INCOME, ONE HAS TO SEE WHETHER IT IS THE REAL INCOME OR WH ETHER ANY INCOME HAS MATERIALIZED. WHAT IS NECESSARY TO BE CONSIDERED IS THE TRUE NATURE OF THE TRANSACTION AND WHETHER IN FACT THE TRANSACTION H AS RESULTED IN PROFIT OR LOSS TO THE ASSESSEE. WHEN INCOME HAS NOT RESUL TED AT ALL, THERE IS NEITHER ACCRUAL NOR RECEIPT OF INCOME EVEN IF TH ERE IS AN ENTRY TO THAT EFFECT IN THE BOOKS OF ACCOUNT. MERE POSTING OF AN ENTRY IN THE ACCOUNT BOOKS WOULD NOT ALWAYS SUPPLY CONCLUSIV E EVIDENCE ON THE QUESTION WHETHER THE DISPUTED AMOUNT HAS ACCRUED TO THE ASSESSEE OR NOT. ALL THAT WHICH COULD HAVE BEEN DONE BY TH E AO WOULD BE TO ADOPT THE CORRECT QUANTUM OF THE NET COMMISSION INCOME FROM THESE TRANSACTIONS. 4.8FURTHER , SINCE THE REAL INCOME THEORY DOES NOT APPLY TO DEEMING PROVISIONS, THE APPELLANT WOULD LIKE TO CLEAR HIS STAND ACCORDING TO THE FACTS ON RECORD. NO DEEMING PROVISIONS OR FICTION OF LAW LIKE SECTIONS 68, 69, 69A, 69B, 69C OR 69D IS AT ALL ATTRACTED ON THE APPELLANTS CASE AND HENCE ONLY REAL INCOME COULD BE SUBJECTED TO TAX. BASICALLY, THE IMPUGNED DOCUMENTS DOES NOT HAVE ANY INFERENTIAL VALUE SO AS TO JUSTIFY THE ADDITION OF THE GRO SS AMOUNT OF THE TRANSACTIONS. MORE SO THE APPELLANT WAS NOT FOUND OF ANY DISPROPORTIONATE OR RATHER ANY [IT(SS)A NO.6/IND/2015, IT(SS)A NOS.171, 172 & 176/ IND/2016] [SHRI SUNIL AGARWAL & SMT. SHEETAL AGARWAL, INDORE] 13 UNDISCLOSED PROPERTY/ASSETS SO AS TO J USTIFY SUCH ADDITIONS. 4.09 THE ALLAHABAD HIGH COURT IN APPEAL CA SE NO. 341 OF 2008 IN THE CASE OF BHAWNA MAKHIJANI RELYING ON TH E FINDINGS OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. P.K .NOORJAHAN (1999) 237 ITR 571, THAT DISCRETION U/S 69 WAS NOT PROPERLY EXERCISED BY THE ITO AND THE AAC BY TAKING INTO ACCOUNT THE CIRCU MSTANCES IN WHICH THE ASSESSEE WAS PLACED, NAMELY, THAT THE ASSESSEE HA D NO SOURCE OF INCOME FROM WHICH INVESTMENT COULD BE MADE HELD THA T THE ASSESSEE HAD NO SUCH SOURCE OF INCOME, THE MONEY WAS NOT UTI LIZED BY HER, IT CANNOT BE SAID THAT THE AMOUNT DEPOSITED IN CASH IN HER BANK A/C WAS THE INCOME OF THE ASSESSEE AND DELETED THE ADDITION SO MADE ON THIS COUNT. 4.10THE LD. AO HAS MENTIONED THAT D URING THE COURSE OF SEARCH AND SURVEY ACTION , VARIOUS INCRIMINAT ING DOCUMENTS WERE FOUND. HOWEVER SUCH DOCUMENTS HAVE NEITHER BEEN SPECIFIED NOR CONFRONTED WITH TO THE APPELLANT. 4.11 SEARCH HAD BEEN CARRIED OUT I N THE CASE OF THE APPELLANT AND NO EVIDENCE WHAT SO EVER HAD BEEN FOUND DURING THE SEARCH OPERATIONS WHICH COULD SHOW THAT THE APPELLANT WAS INVOLVED IN SUCH ACTIVITIES AS ALLEGED. NONE OF THE DOCUMENTS S EIZED FROM THE APPELLANT, OF WHICH PHOTO COPIES ARE PROVIDED IN TH E IMPUGNED ASSESSMENT ORDERS, EITHER EXPRESSLY OR BY NECESSARY IMPLIC ATION SHOWS ANY SUCH RELATION WITH THAT OF THE APPELLANT. THESE LOOSE PAPERS DID NOT BELONG TO THE APPELLANT AT ALL SINCE TH EY ARE NEITHER IN THE APPELL ANTS HANDWRITING NOR RELATED TO THE A PPELLANT. EVEN OTHERWISE THESE PAPERS ONLY DENOMINATES JUST SIMPLE NOTINGS BY THE THIRD PARTIES/STAFF REGARDING BANK A/C NOS. ETC. FOR THEIR OWN PURPOSES AND ARE NOT AT ALL INCRIMINATING AGAINST THE AP PELLANT. THE SAME HAVE ABSOLUTELY NO IMPACT ON ASSESSEES TOTAL INCOME. THESE PAPERS ARE ACTUALLY UNDATED, DUMB DOCUMENTS ON WHICH NO ADDITIONS COULD BE MADE . EVEN STATEMENT OF MANY OF THE B ANK A/C HOLDERS WERE RECORDED BY THE LD. AO AND NONE OF THE PERSON STA TED TO HAVE ANY RELATION WITH THIS APPELLANT OR WITH THE TRANSACTIONS IN THEIR BANK A/C . NO NEXUS WITH THE APPELLANT EVER ESTABLISHED OR PROVED WITH REGARD TO THE ALLEGED TRANSACTIONS IN THESE BANK A/CS. T HE MONEY DEPOSITED IN THESE ALLEGED BANK A/CS WAS NEVER UTILIZED BY THIS APPELLANT. SINCE THE EVIDENCES ON RECORD CLEARLY SHOWS THAT THESE DOCUMENTS ARE NOT AT ALL INCRIMINATING AGAINST THIS APPELLANT AND THE SAME HAVE ABSOLUTELY NO IMPACT ON ASSESSEES TOTAL INCO ME AN AGGREGATE OF DEPOSITS IN THESE BANK A/CS WITHOUT ANY BASIS COULD NOT IN ANY CASE BE SAID TO BE THE SAME THING AS ASSESSABLE TOTAL INCOME OF THE APPELLANT. [IT(SS)A NO.6/IND/2015, IT(SS)A NOS.171, 172 & 176/ IND/2016] [SHRI SUNIL AGARWAL & SMT. SHEETAL AGARWAL, INDORE] 14 4.12 THE FACT THAT IS TO BE IMPRESSED UPON YOUR HONOR IS WHETHER THE ASSESSMENT FRAMED BY THE AO WAS ACCORDING TO LAW AND PURPORTEDLY FRAMED ON FACTS AND WHETHER THERE WAS SUFFICIENT MATERIAL TO SUPPORT IT. WHETHER TH ESE ADDITIONS ARE SUSTAINABLE ON THE BASIS OF EVIDENCES RELIED U PON OR MATERIAL GATHERED DURING SEARCH. ADMITTEDLY, EXCEPT FOR THE LOOSE PAPERS INDICATING BANK A/C NOS. ETC. THERE IS NO OTHER CORROBO RATING EVIDENCE TO ESTABLISH ANY TRANSACTION HAVING BEEN TAKEN PLACE. TO MAKE THE ASSESSEE RESPONSIBLE, THERE HAS TO BE PROPER EVIDENCES. AN INNOCENT PERSON CANNOT BE FASTENED WITH LI ABILITY WITHOUT COGENT EVIDENCES. AS PER THE PROVISIONS OF SECTION 103 OF THE INDIAN EVIDENCE ACT, THE BURDEN OF PROOF AS TO ANY PARTICULAR FACT LIES ON THAT PERSON WHO WISHES THE COURT TO BELIEVE IN ITS EXISTENCE, UNLESS IT IS PROVIDED BY ANY LAW THAT THE PR OOF OF THAT FACT SHALL LIE ON ANY PARTICULAR PERSON AND IN THIS CASE THE AO HAS MISERABLY FAILED TO DISCHARGE SUCH BURDEN. IN THIS FA CTUAL MATRIX IN ABSENCE OF ANY COGENT EVIDENCE TO TREAT THE AM OUNTS AS TAXABLE INCOME OF THE ASSESSEE IS NOT JUSTIFIED. 4.13 AS PER THE MANDATE OF SECTION 142 (3), EXCEPT WHERE THE ASSESSMENT IS MADE UNDER SECTION 144, THE ASS ESSEE SHALL BE GIVEN AN OPPORTUNITY OF BEING HEARD IN RESPECT OF ANY MATERIAL GATHERED ON THE BASIS OF ANY INQUIRY UNDER SUB-SECTION (2) O R ANY AUDIT UNDER SUB-SECTION (2A) AND PROPOSED TO BE UTILIZED FOR THE PURPOSES OF THE ASSESSMENT. BEFORE ARRIVING AT SUCH A CONCLUSION, THE AO DID NOT MAKE AVAILABLE TO THE ASSESSEE RESULTS OF HER ENQUIRY NOR DID SHE ALLOWED ANY FURTHER OPPORTUNITY TO THE ASSESSEE TO FURNISH HIS EXPLANATION ON THIS POINT. THE AO DEALT WITH THE ISSUE IN A VERY SUMMARY MANNER. THE AO IGNORED THE VITAL SUBMISSIONS MADE BY THE ASSESSEE AT THE TIME OF ASSESSMENT PROCEEDINGS. THE ASSESSEE AFTER FILING HIS EXPLANATIONS WAS NEVER ASKED BY THE AO TO FILE AN Y FURTHER EXPLANATION. NO EXPLANATION FILED BY THE ASSESSEE WAS FOUND TO BE FALSE. WITHOUT AFFORDING ANY FURTHER OPPORTUNITY, THE AO ADDED THE AMOUNTS TO THE INCOME OF THE ASSESSEE. NON APPLICATION OF MIND BY AO IS MANIFEST ALSO IN THE AOS MECHANICALLY PUTTING TH E FIGURE OF TOTAL DEPOSITS INSTEAD OF FIRST ELIMINATING ALL THE REAL TRANSACTIONS FROM ACCOUNTS INCLUDING THEIR CONSEQUENTIAL AND CONNECTED TRANSACTIONS. 4.14 NO PROPER OPPORTUNITY WAS GIVEN TO THE APPELLANT BEFORE ADDING THESE AMOUNTS TO THE TOTAL INCO ME WHICH IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE. NEITHER PROPER E NQUIRY WAS MADE BY THE AO BEFORE MAKING THE ADDITION. THE AO WITH OUT ISSUING ANY SUMMONS TO THE COMPANIES ADDED THE ENTIRE AMOUNT OF DEPOSITS TO THE INCOME OF THE ASSESSEE. IN THE CASE OF KHAN DELWAL CONSTRUCTIONS VS. CIT 227 ITR 900, IT HAS BEEN HELD THAT BEFORE RE JECTING THE ASSESSEES EXPLANATION AO [IT(SS)A NO.6/IND/2015, IT(SS)A NOS.171, 172 & 176/ IND/2016] [SHRI SUNIL AGARWAL & SMT. SHEETAL AGARWAL, INDORE] 15 MUST MAKE PROPER ENQUIRIES AND IN AB SENCE OF PROPER ENQUIRIES, ADDITION CANNOT BE SUSTAINED. FAILURE TO MAK E REQUISITE ENQUIRY BY LD. AO FROM CRITICAL WITNESSES VITIATES ADDITION 49 ITR 561 (ALL. HIGH COURT). BEFORE MAKING THE ADDITIONS THE AO MU ST SATISFY HIMSELF ON THE BASIS OF ENQUIRIES SO MADE. THIS SATIS FACTION MUST NOT BE ILLUSORY OR IMAGINATIVE BUT MUST HAVE BEE N DERIVED FROM RELEVANT FACTS AND FACTORS, AND IS ON THE BASIS OF PR OPER ENQUIRY OF ALL MATERIAL BEFORE HIM BUT ALSO TO WHICH HE HAS COMMAND. THE ENQUIRY ENVISAGED U/S 68 IS AN ENQUIRY WHICH IS REASONABLE AND JUST. (227 ITR 900 - GAUHATI) 4.15THUS IN ABSENCE OF ANY CORROBORATIVE EVI DENCE TO SUPPORT THE CASE OF THE REVENUE AND THAT THE ASSESSEE HAD ACTUALLY EARNED SUCH HUGE INCOME, AND FURTHER WHEN THE ASSESSEE HAS NOT BEEN FOUND THE OWNER OF ANY UNDISCLOSED OR DISPROPORTIONATE ASSETS, T HE ADDITIONS MADE TO THE RETURNED INCOME ON PRESUMPTIONS AND SURMISES, D ESERVES TO BE DELETED IN FULL. 4.16 IN THE CASE OF PEOPLES GENERAL HOSPITAL PVT. LTD. (2011) 17 ITJ 355 THE HONBLE ITAT INDORE BENCH HAS HELD THAT ASSESSEE HAS BROUGHT VARIOUS EVIDENCES TO PROVE IDENTITY, GENUINENESS AND CREDIT WORTHINESS. NEGATIVE BURDEN CANNOT BE CAST ON THE ASSES SEE AND SUSPICION HOWEVER STRONG CANNOT TAKE FORM OF EVIDENCE. MERE ALLEGATION THAT THE ASSESSEE IS ENGAGED IN MONEY LAUNDERING IS NOT ENOUGH RATHER THE REVENUE IS EXPECTED TO PRODUCE THE CONCRE TE EVIDENCE FOR THE SAME . ADDITION MADE U/S 68 CANNOT BE SUSTAINED . IN THE CASE OF SHRI BRIJLAL RUPCHAND 40 TTJ 668 THE HONBLE ITAT INDORE BENCH HAS HELD THAT THE ITO DID NOT EVEN CARE TO KNOW AS TO IN WHOSE HANDWRITING THOSE PAPERS WERE. NO ATTEMPT WERE MADE TO CONNECT THE ASSESSEE WITH THOSE PAPERS IN ANY MANNER. UNDER THESE CIRCUMSTANCES IT WAS NOT JUSTIFIED TO THROW BURDEN OF PROOF ON THE ASSESSEE . EVEN IF IT IS ASSUMED T HAT ALL THE PAPERS BELONGED TO THE ASSESSEE , IT IS DIFFICULT TO MAKE OU T THE TRANSACTIONS CONTAINED THEREIN. THE PRESUMPTIONS DRAWN OUT OF CERTAIN SET OF FACTS AND CIRCUMSTANCES MUST CARRY SENSE. (DCIT VS. HIMMATMAL FAFA RI 9 ITJ 475 (INDORE ). SUPREME COURT IN THE CASE OF UMACHARAN SHAW AND BROS. VS. CIT (1959) 37 ITR 271 : SUSPICION HOWEVER GREAT CANNOT TAKE PLACE OF EVIDENCE APPLIED BY P & H HIGH COURT IN ANU PAM KAPOOR 299 ITR 179. AN EXPLANATION GIVEN BY THE ASSESSEE HAS TO BE CONSIDERED OBJECTIVELY BEFORE AO TAKES A DECISION TO ACC EPT IT OR REJECT IT THAT IS, DEPARTMENT CANNOT CONVERT A GOOD PROOF INTO NO P ROOF ON MERE IPSE-DIXIT 49 ITR 112 . SLIP FOUND CONTAINED ONLY ROUGH CAL CULATIONS. NO TRANSACTION WAS [IT(SS)A NO.6/IND/2015, IT(SS)A NOS.171, 172 & 176/ IND/2016] [SHRI SUNIL AGARWAL & SMT. SHEETAL AGARWAL, INDORE] 16 DENOTED THEREIN. NO CORROBORATIVE MATE RIAL TO SHOW ANY TRANSACTION. NO ADDITION COULD BE MADE. CIT VS. RAVI KUMAR 168 TAXMAN 150 (P&H) APPLYING P & H HIGH COURT IN 294 ITR 78, DELHI HIGH COURT IN ITA 185/2009 HAS CONCLUDED THAT NO ADDITIO N IS POSSIBLE MERELY ON THE BASIS OF LOOSE SLIPS. LAW DOES NOT EXPECT THE IMPOSSIBL E ON THE PART OF THE TAX PAYER AS POINTED OUT IN LIFE INSURANCE C ORP. OF INDIA VS. CIT (1996) 219 ITR 410 (SC) ALTHOUGH PRONOUNCED IN A DIFF ERENT CONTEXT. 4.17 WITHOUT PREJUDICE TO THE ABOVE SUBMISSIO NS , IT IS FURTHER SUBMITTED ON THE FACTS OF THE CASE AND CONS IDERING THE NATURE OF ADDITIONS MADE, NO ADDITION U/S 68 COULD BE MADE IN THE CASE OF THIS APPELLANT SINCE AS HELD N THE CASE OF CIT POONA VS. BHAICHAND H. GANDHI 141 ITR 67 (BOM.) , BANK PASS BOOK IS NOT BOOKS OF ACCOUNTS FOR THE PURPOSE OF SECTION 68. IN CENTRAL BUREAU OF I NVESTIGATION VS. V. C. SHUKLA (1998) 3 SCC 410, THE HONBLE SUPREME C OURT HAS HELD BOOK ORDINARILY MEANS A COLLECTION OF SHEETS OF PAP ER OR OTHER MATERIAL, BLANK, WRITTEN OR PRINTED, FASTENED OR BOUND TOGETHER SO AS TO FORM A MATERIAL WHOLE. LOOSE SHEETS OR SCRAP OF PAPER CANNOT BE TERMED AS BOOK FOR THEY CAN BE EASILY DETACHED AND REPLACED. AS PER SECTION 2(12A) OF THE INCOME TAX ACT BOOKS INCLUDES LEDGERS, DAY BOOKS, CASH BOOKS, WHETHER KEPT IN THE WRITTEN FORM OR AS PRINT OUTS OF DATA STORED IN FLOPPY, DISC, TAPE OR ANY OTHER ELECTRO-MAGNETIC DATA STOR AGE DEVICE. FURTHER IN THE CASE OF SMT. SHANTA DEVI VS. CIT (1998) 171 ITR 532 (P&H) IT HAS BEEN HELD THAT THE BOOK OF A CCOUNTS MUST BE THAT OF THE ASSESSEE HIMSELF AND NOT OF ANY OTHER ASSES SEE . ON PERUSAL OF SECTION 68 WOULD SHOW THAT THE EXPRESSION BOOKS HAS BEEN USED WITH REFERENCE TO THE WORD ASSESSEE. IN OTHER WORDS, SUCH BOOKS OF ACCOUNTS HAVE TO BE THE BOOKS OF THE ASSESSEE HIMSELF AND NOT OF ANY OTHER ASSESSEE. 4.18 STILL WITHOUT PREJUDICE TO THE ABOVE , THE HONBLE ITAT AMRITSAR BENCH IN THE CASE OF GREEN VALUE FOODS 122 TTJ 674 HAS CONCLUDED THAT IT IS TRUE THAT THE ASSESSEE MIGH T HAVE COMMITTED A SERIOUS ECONOMIC OFFENCE BUT WE DO NOT THINK THA T ASSESSEE BEING COMMITTED ECONOMIC OFFENCE, SHOULD BE CHARGED TO INCO ME UNLESS IT IS PROVED BEYOND ANY DOUBT THAT INCOME WAS GENERATED TO HIM AND TO HIM ALONE. SIMILARLY IN THE CASE OF DR. T.A QUERESHI 287 ITR 547 THE HONBLE SUPREME COURT HELD THAT THE CASES ARE T O BE DECIDED BY COURTS ON LEGAL PRINCIPLES AND NOT ON ONES OWN MORAL VIEWS . LAW IS DIFFERENT FROM MORALITY , AS THE POSITIVIST JURI STS BENTHAM AND AUSTIN POINTED OUT. [IT(SS)A NO.6/IND/2015, IT(SS)A NOS.171, 172 & 176/ IND/2016] [SHRI SUNIL AGARWAL & SMT. SHEETAL AGARWAL, INDORE] 17 4.19 STILL WITHOUT PREJUDICE TO THE ABOVE , THESE ADDITIONS AMOUNT TO DOUBLE TAXATION SINCE THE SAID AMOUNTS MA Y ALREADY HAVE BEEN ADDED EITHER TO THE INCOME OF THE PERSONS OWNIN G THESE ACCOUNTS OR TO THE INCOME OF THE ULTIMATE BENEFICIARIES OF THE SE AMOUNTS. THE ASSESSMENT, HAVING BEEN MADE IN T OTAL VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE AND IN TOTAL D EFIANCE OF SETTLED LEGAL POSITION , AND ALSO THE ASSESSMENT ORDER BEING P ASSED WITHOUT APPLICATION OF MIND, DESERVES TO BE CANCELLED. IN THE ALTERNATE , THE IMPUGNED ADDITI ONS DESERVES TO BE DELETED IN FULL, BOTH ON LEGAL GROUNDS AS WELL AS ON MERITS THEREOF. 9. LD. D.R. OPPOSED THE SUBMISSIONS AND SUPPORTED TH E ORDER OF THE A.O. AND HE FURTHER PLACED RELIANCE ON TH E JUDGEMENT OF THE HON'BLE DELHI HIGH COURT IN THE CAS E OF CIT VS. D.K. GARG (2017) 84 TAXMANN.COM 257 (DELHI). FURTHER RELIANCE IS PLACED ON JUDGEMENT OF HON'BLE DE LHI HIGH COURT RENDERED IN THE CASE OF CIT VS. ULTRA MODE RN EXPORTS PVT. LTD. (2013) 40 TAXMANN.COM 458 (DEL). RELIANCE IS ALSO PLACED UPON THE JUDGEMENT OF THE HON 'BLE DELHI HIGH COURT IN THE CASE OF SEEMA JAIN VS. ACIT CI RCLE- 59(1), NEW DELHI (2018) 96 TAXMANN.COM 307 (DELHI). LD. COUNSEL FOR THE ASSESSEE HAS ALSO PLACED RELIANCE ON THE JUDGEMENT OF THE DELHI HIGH COURT IN THE CASE OF CIT VS. [IT(SS)A NO.6/IND/2015, IT(SS)A NOS.171, 172 & 176/ IND/2016] [SHRI SUNIL AGARWAL & SMT. SHEETAL AGARWAL, INDORE] 18 NOVA PROMOTERS & FINLEASE (P) LTD.(2012) 18 TAXMANN.CO M 217 (DEL.) IN SUPPORT OF THE CONTENTION THAT BOTH TH E AUTHORITIES BELOW WERE JUSTIFIED IN MAKING THE ADDITIO N. 10. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE OBJECTIONS OF THE ASSE SSEE AGAINST IMPUGNED ADDITION CAN BE ENUMERATED IN BRIEF AS UNDER: A) THE ADDITIONS SHOULD BE MADE WITHIN WELL DEFINED CONTOURS OF THE STATUTORY PROVISIONS. B) INCRIMINATING MATERIAL SHOULD ONLY BE BASIS FOR ADDITION. NO POSITIVE MATERIAL IS FOUND AGAINST THE ASSESSEE. C) THE DOCUMENTS DO NOT RELATE TO THE ASSESSEE, HENCE, A.O. CANNOT FASTEN ANY LIABILITY ON THE BASIS OF SUCH DOCUMENT. D) MERE SUSPICION SHOULD NOT BE THE BASIS FOR MAKING ADDITIONS. [IT(SS)A NO.6/IND/2015, IT(SS)A NOS.171, 172 & 176/ IND/2016] [SHRI SUNIL AGARWAL & SMT. SHEETAL AGARWAL, INDORE] 19 E) ONLY REAL INCOME SHOULD BE SUBJECTED TO TAX. IT IS CONTENDED THAT THE A.O. HAS MADE ADDITION OF THE ENTIRE AMOUNT WHICH IS NOT PERMISSIBLE. ONLY INCOME ELEMENT IS TO BE TAXED. F) THE ASSESSEE WAS NOT CONFRONTED WITH THE SO CALLED INCRIMINATING MATERIAL, HENCE, THERE IS CLEAR VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. G) THE IMPUGNED ADDITIONS AMOUNT TO DOUBLE ADDITIONS AS ADDITIONS MIGHT HAVE BEEN MADE IN THE HANDS OF THE ACCOUNT HOLDER. 11. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO THESE OBJECTIONS OF THE ASSESSEE. UNDISPUTEDLY IN T HIS CASE A SEARCH & SEIZURE ACTION WAS CARRIED OUT AT THE RESIDENT IAL PREMISES OF THE ASSESSEE ON 7.9.2007. DURING THE CO URSE OF SEARCH, CERTAIN LOOSE PAPERS, DOCUMENTS, ETC. WERE FOU ND AND SEIZED. THE A.O. NOTICED THAT M/S. OPTIMATE TEXTI LES LTD. WAS HOLDING BANK ACCOUNT IN AXIS BANK WHERE CASH DEPOSITS WERE MADE ON DIFFERENT DATES. THE ASSESSING OFFICER FURTHER NOTICED THAT DURING THE COURSE OF SE ARCH AT [IT(SS)A NO.6/IND/2015, IT(SS)A NOS.171, 172 & 176/ IND/2016] [SHRI SUNIL AGARWAL & SMT. SHEETAL AGARWAL, INDORE] 20 RESIDENCE OF THE ASSESSEE, A PAPER I.E. LPS-5 WAS RECOV ERED ON WHICH WORKING OF ENTRIES PROVIDED THROUGH THIS AC COUNT OF M/S. OPTIMATE TEXTILES LTD. AND COMMISSION CHARGED WERE MENTIONED. THE A.O. REPRODUCED THE CONTENTS O F LPS- 5 IN THE ASSESSMENT ORDER. THEREFORE, IT IS NOT THE CASE WHERE THE DOCUMENTS ON THE BASIS OF WHICH ASSESSMENT WAS FRAMED WAS RECOVERED FROM THE POSSESSION OF STRANGE R. IT IS ALSO UNDISPUTED FACT THAT THE ASSESSEE HAS BEEN INVOLVED IN THE ACTIVITY OF GIVING ACCOMMODATION ENTRI ES. NO STRETCH OF IMAGINATION WHEN UNDISPUTEDLY THE PAPER IS RECOVERED FROM THE POSSESSION OF THE ASSESSEE CAN DISASSOCIATE ASSESSEE FROM THE PAPER SO RECOVERED. THEREFORE, IT IS CANNOT BE CONCLUDED THAT NO INCRIMIN ATING MATERIAL, INCRIMINATING THE ASSESSEE WAS AVAILABLE WITH THE ASSESSING OFFICER. UNDER THESE FACTS, THE OBJECTIONS OF THE ASSESSEE THAT THE PROCEEDINGS WERE INITIATED WITHOUT AN Y [IT(SS)A NO.6/IND/2015, IT(SS)A NOS.171, 172 & 176/ IND/2016] [SHRI SUNIL AGARWAL & SMT. SHEETAL AGARWAL, INDORE] 21 INCRIMINATING MATERIAL AGAINST THE ASSESSEE IS DEVOID OF ANY MERIT, HENCE, REJECTED. 12. NOW COMING TO THE OTHER OBJECTIONS OF THE ASSESSEE THAT PAPER RELATED TO THE THIRD PARTY CANNOT BE THE BASIS FOR MAKING ADDITIONS IN THE HANDS OF THE ASSESSEE. THE ASSESSEE COULD NOT PROVE WITH POSITIVE MATERIAL TH AT HE IS NOT THE PART OF THE ACCOMMODATION ENTRIES PROVIDED TO VARIOUS PERSONS THROUGH FICTITIOUS ENTITIES. THE RE VENUE HAS PLACED RELIANCE ON THE JUDGEMENT OF THE HON'BLE DE LHI HIGH COURT IN THE CASE OF CIT VS. D.K. GARG (SUPRA) IN WHICH IT WAS HELD AS UNDER: [IT(SS)A NO.6/IND/2015, IT(SS)A NOS.171, 172 & 176/ IND/2016] [SHRI SUNIL AGARWAL & SMT. SHEETAL AGARWAL, INDORE] 22 [IT(SS)A NO.6/IND/2015, IT(SS)A NOS.171, 172 & 176/ IND/2016] [SHRI SUNIL AGARWAL & SMT. SHEETAL AGARWAL, INDORE] 23 13. IN THE PRESENT CASE ALSO THE ASSESSEE IS AN ACCOMMODATION ENTRY PROVIDER AND PROVIDED SUCH ENTRIES THROUGH PAPER COMPANIES. THEREFORE, NO INTERFERENCE IN THE ORDER OF THE LD. CIT(A) IS CALLED FOR. THE GROU NDS RAISED IN THE APPEAL ARE DISMISSED. APPEAL OF ASSESSEE IS DISMISSED. 14. NOW COMING TO IT(SS)A NO.06/IND/2015 FOR THE ASSESSMENT YEAR 2002-03. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AND, IN LAW, THE HON'BLE COMMISSIONER OF INCOME TAX (APPEAL) BILASPU R, CAMP AT BHOPAL, FAILED TO APPRECIATE THAT THE ASSESSMENT OR DER DATED 31.12.2009 PASSED BY THE LD. DEPUTY COMM. OF INCOME TAX CIRCLE 1(2) BHOPAL ALONG WITH THE NOTICE OF DEMAND CREATIN G THE DEMAND AT RS.93,831/- IS BAD IN LAW. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AND, IN LAW, THE HON'BLE COMMISSIONER OF INCOME TAX (APPEALS), BILAS PUR, CAMP AT BHOPAL ERRED IN CONFIRMING/UPHOLDING THE ADDITIONS OF RS.98,850/- TO THE RETURNED INCOME ON ACCOUNT OF LOANS/ADVANCES OF RS.7,200/- FROM SHRI SANJAY SARAF, RS.21,000/- FROM SAHAYTA MA RKETING AND RS.70,650/- FROM SUNIL SHARES & STOCKS P. LTD. TREA TING THE SAME AS UNEXPLAINED CREDITS U/S 68 OF THE I.T. ACT, 1961. 3. THE APPELLATE ORDER BEING NOT BASED ON FACTS, AND, IN LAW, IS ILLEGAL & WRONG. 4. THE APPELLANT CRAVES LEAVE TO ADD/ALTER/AMEND THE A BOVE GROUNDS OF APPEAL IF AND WHEN NECESSITY OR OCCASION ARISES. [IT(SS)A NO.6/IND/2015, IT(SS)A NOS.171, 172 & 176/ IND/2016] [SHRI SUNIL AGARWAL & SMT. SHEETAL AGARWAL, INDORE] 24 15. THE FACTS GIVING RISE TO THE ABOVE GROUNDS ARE TH AT A SEARCH ACTION WAS CARRIED OUT AT THE PREMISES OF THE ASSESSEE ON 7.9.2007. DURING THE COURSE OF SEARCH & SEIZURE ACTION, CERTAIN LOOSE PAPERS, DOCUMENTS AND BO OKS OF ACCOUNTS WERE FOUND AND SEIZED. SUBSEQUENTLY, A NOT ICE U/S 153A OF THE ACT DATED 12.1.2009 WAS ISSUED TO THE ASSESSEE. IN RESPONSE THERETO, THE ASSESSEE FILED RE TURN OF INCOME DECLARING INCOME OF RS.1,19,190/-. THE A.O. THEREAFTER FRAMED ASSESSMENT U/S 153A R.W.S. 153(3) OF THE ACT. WHILE FRAMING THE ASSESSMENT, THE A.O. NOTICED THAT THE ASSESSEE HAD TAKEN UNSECURED LOAN FROM 5 PARTIES AMOUNTING TO RS.1,18,850/-. THE A.O. MADE ADDITION ON THE BASIS OF CREDITWORTHINESS OF THE CREDITORS AND GENUINENESS OF THE TRANSACTIONS COULD NOT BE PROVED. AGAINST THIS, ADDITION OF RS.1,18,850/-, THE ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A), WHO AFTER CONSID ERING [IT(SS)A NO.6/IND/2015, IT(SS)A NOS.171, 172 & 176/ IND/2016] [SHRI SUNIL AGARWAL & SMT. SHEETAL AGARWAL, INDORE] 25 THE SUBMISSIONS PARTLY ALLOWED THE APPEAL. THEREBY, HE DELETED THE ADDITIONS RELATED TO THE UNSECURED LOAN OF RS.10,000/- PERTAINING TO ELECTRONIC REG. AND ARVIND SHRIMALI BEING RELATED TO EARLIER YEAR, REST OF THE ADDI TIONS WERE SUSTAINED. AGAINST THIS, THE ASSESSEE HAS PREFERR ED THIS PRESENT APPEAL. 16. APROPOS TO GROUND NO.1, LD. COUNSEL FOR THE ASSESSEE MADE SIMILAR SUBMISSIONS AS WERE MADE IN IT(SS)A NO.171/IND/2016 FOR THE ASSESSMENT YEAR 2005- 06. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE DEMAND IS RAISED PRIOR TO MAKING ASSESSMENT, THEREFORE, NOTICE OF DEMAND CREATING DEMAND AT RS.93,831/- DATED 31.12.2009 IS BAD IN LAW AND DESERVES TO BE QUASHED. 17. ON THE CONTRARY, LD. D.R. SUBMITTED THAT THE WRONG DATE IN THE NOTICE IS A TYPOGRAPHICAL ERROR. AS PER THE REGISTER, THE DEMAND WAS RAISED ON 31.12.2009 BUT NOT ON 30.12.2009 AS CLAIMED BY THE ASSESSEE. [IT(SS)A NO.6/IND/2015, IT(SS)A NOS.171, 172 & 176/ IND/2016] [SHRI SUNIL AGARWAL & SMT. SHEETAL AGARWAL, INDORE] 26 18. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. AS WE HAVE ALREADY HELD IN IT(SS)A NO.171/IND/2015 THAT THE ERROR CREPT INTO TH E NOTICE DUE TO THE TYPOGRAPHICAL ERROR AND SAME CANNOT BE HELD AS ILLEGAL IN VIEW OF SECTION 292B OF THE ACT. GROUND NO.1 OF THE ASSESSEES APPEAL IS REJECTED. 19. APROPOS TO GROUND NO.2, NO ARGUMENTS ARE ADDRESSED. THEREFORE, WE DO NOT SEE ANY INFIRMITY IN TO THE ORDER OF THE LD. CIT(A). SAME IS HEREBY AFFIRMED. G ROUND NO.2 OF THE ASSESSEES APPEAL IS REJECTED. 20. GROUND NOS.3 & 4 ARE GENERAL IN NATURE WHICH NEEDS NO SEPARATE ADJUDICATION. 21. APPEAL OF THE ASSESSEE IN IT(SS)A NO.6/IND/2015 IS DISMISSED. 22. NOW COMING TO THE APPEAL NO.172/IND/2016 (SMT. SHEETAL AGARWAL) FOR THE ASSESSMENT YEAR 2006-07. IN TH IS [IT(SS)A NO.6/IND/2015, IT(SS)A NOS.171, 172 & 176/ IND/2016] [SHRI SUNIL AGARWAL & SMT. SHEETAL AGARWAL, INDORE] 27 APPEAL THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AND, IN LAW, THE HON'BLE COMMISSIONER OF INCOME TAX (APPEAL)-2, BHOP AL FAILED TO APPRECIATE THAT THE ASSESSMENT ORDER DATED 31.12.20 09 PASSED U/S 153A R.W.S. 143(3) OF THE INCOME TAX ACT 1961, BY THE LE ARNED DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 1(2) BHOPAL IS IL LEGAL AND BAD IN LAW. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AND, IN LAW, THE HON'BLE COMMISSIONER OF INCOME TAX (APPEALS)-2, BHOPAL ERRE D IN CONFIRMING THE ADDITIONS OF RS.17,00,000/- TO THE RETURNED INCOME WITHOUT CONSIDERING THE FACTS THAT NO INCRIMINATING DOCUMENTS WERE FOUND DU RING THE COURSE OF SEARCH FOR SUBJECTED ADDITION AND NO ASSESSMENT COU LD BE SAID TO BE PENDING AS ON THE DATE OF INITIATION OF SEARCH. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AND, IN LAW, THE HON'BLE COMMISSIONER OF INCOME TAX (APPEALS)-2, BHOPAL ERRE D IN CONFIRMING/UPHOLDING THE ADDITION OF RS.9,25,000/- AND OF RS.7,75,000/- TO THE RETURNED INCOME ON ACCOUNT OF LOAN FROM M/S. SPECTRUM CHEMICALS AND M/S. OPTIMATE TEXTILE RESPECTIVELY BY TREATING THE SAME AS UNEXPLAINED LOANS. 4. THE APPELLANT CRAVES LEAVE TO ADD/ALTER/AMEND THE A BOVE GROUNDS OF APPEALS IF AND WHEN NECESSITY OR OCCASION ARISES. 23. THE FACTS AND GROUNDS ARE IDENTICAL AS WERE IN IT(SS)A NO.171/IND/2016 FOR THE A.Y. 2005-06 EXCEPT THE PARTY AND THE FIGURES. THE PARTIES HAVE ADOPTED THE SAM E ARGUMENT AS IN IT(SS)A NO.171/IND/2016. 24. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS [IT(SS)A NO.6/IND/2015, IT(SS)A NOS.171, 172 & 176/ IND/2016] [SHRI SUNIL AGARWAL & SMT. SHEETAL AGARWAL, INDORE] 28 OF THE AUTHORITIES BELOW. FOR TAKING CONSISTENT VIE W, THE GROUNDS RAISED IN THE PRESENT APPEAL ARE DISMISSED FOR THE SAME REASONS AS REPORTED IN THIS ORDER IN IT(SS)A NO.171/IND/2016 IN PARA NOS.7 TO 11 ABOVE. THEREFORE , TAKING A CONSISTENT VIEW, GROUNDS RAISED IN THIS APPEAL ARE DISMISSED. 25. NOW COMING TO IT(SS)A NO.176/IND/2016 FOR THE A.Y. 2005-06. IN THIS APPEAL THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AND, IN LAW, THE HON'BLE COMMISSIONER OF INCOME TAX (APPEAL)-2, BHOP AL FAILED TO APPRECIATE THAT THE ASSESSMENT ORDER DATED 31.12.20 09 PASSED U/S 153A R.W.S. 143(3) OF THE INCOME TAX ACT 1961, BY THE LE ARNED DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 1(2) BHOPAL IS IL LEGAL AND BAD IN LAW. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AND, IN LAW, THE HON'BLE COMMISSIONER OF INCOME TAX (APPEALS)-2, BHOPAL ERRE D IN CONFIRMING THE ADDITIONS OF RS.12,50,000/- TO THE RETURNED INCOME WITHOUT CONSIDERING THE FACTS THAT NO INCRIMINATING DOCUMENTS WERE FOUND DU RING THE COURSE OF SEARCH FOR SUBJECTED ADDITION AND NO ASSESSMENT COU LD BE SAID TO BE PENDING AS ON THE DATE OF INITIATION OF SEARCH. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AND, IN LAW, THE HON'BLE COMMISSIONER OF INCOME TAX (APPEALS)-2, BHOPAL ERRE D IN CONFIRMING/UPHOLDING THE ADDITION OF RS.12,50,000/- TO THE RETURNED INCOME ON ACCOUNT OF LOAN FROM M/S. RAPID COMMERCIA L FINLEASE PVT. LTD. BY TREATING THE SAME AS UNEXPLAINED LOANS. [IT(SS)A NO.6/IND/2015, IT(SS)A NOS.171, 172 & 176/ IND/2016] [SHRI SUNIL AGARWAL & SMT. SHEETAL AGARWAL, INDORE] 29 4. THE APPELLANT CRAVES LEAVE TO ADD/ALTER/AMEND THE A BOVE GROUNDS OF APPEALS IF AND WHEN NECESSITY OR OCCASION ARISES. 26. THE FACTS AND GROUNDS ARE IDENTICAL AS WERE IN IT(SS)A NO.171/IND/2016 FOR THE A.Y. 2005-06 EXCEPT THE PARTY AND THE FIGURES. THE PARTIES HAVE ADOPTED THE SAM E ARGUMENT AS IN IT(SS)A NO.171/IND/2016. 27. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. FOR TAKING CONSISTENT VIEW , THE GROUNDS RAISED IN THE PRESENT APPEAL ARE DISMISSED FOR THE SAME REASONS AS REPORTED IN THIS ORDER IN IT(SS)A NO.171/IND/2016 IN PARA NOS.7 TO 11 ABOVE. THEREFORE , TAKING A CONSISTENT VIEW, GROUNDS RAISED IN THIS APPEAL ARE DISMISSED. [IT(SS)A NO.6/IND/2015, IT(SS)A NOS.171, 172 & 176/ IND/2016] [SHRI SUNIL AGARWAL & SMT. SHEETAL AGARWAL, INDORE] 30 28. IN THE RESULT, THE APPEALS FILED BY BOTH THE ASSESSEES ARE DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 06. 02.2019. SD/- (MANISH BORAD) SD/- (KUL BHARAT) A CCOUNTANT MEMBER JUDICIALMEMBER INDORE; DATED : 06/02/2019 VG/SPS COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE