S K Dixit, New Delhi V. ACIT, New Delhi

ITSSA 19/DEL/2013

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 0811 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 19-06-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 22-06-2017
• Assessment Year: misc
• Appeal Filed On: 13-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Assessee Lawyers: K R RASTOGI
• Keywords: Income from undisclosed sources; Salary income; Loose papers; Document seized; Source of fund; Documents seized
• Section: 132; 144

Judgement Text

SHRI S K DIXIT V ACIT ITA NO IT (SS) 19/DEL/2013 BLOCK PERIOD 1989 - 90 TO 1999 - 2000 PAGE 1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G : NEW DELHI BEFORE SHRI AMIT SHUKLA , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER IT (SS) A NO. 19/DEL/2013 ( BLOCK PERIOD : 1989 - 90 TO 1999 - 2000 ) SHRI S . K . DIXIT, A - 13/1, VASANT VIHAR, NEW DELHI PAN:AAJPD9197J VS. ACIT, CENTRAL CIRCLE - 9, ARA CENTRE, E - 2, JHANDEWALAN EXTENSION, NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI K . R . RASTOGI, CA REVENUE BY: SHRI S. S. RANA, CIT DR DATE OF HEARING 12/03/2018 DATE OF PRONOUNCEMENT 23 / 0 3 / 2018 O R D E R PER PRASHANT MAHARISHI , A. M. 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) - XXXII, NEW DELHI [ THE LD CIT (A) ] ON 28.03.2013 PASSED IN APPEAL AGAINST ORDER PASSED BY THE ASSISTANT COMMISSIONER OF INCOME TAX , CENTRAL CIRCLE - 09, NEW DELHI [ THE ACIT] U/S 144 READ WITH SECTION 158BC OF T HE INCOME TAX ACT [ THE ACT] ON 30.12.2011. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. THE LD CIT(A) - XXXII, NEW DELHI ERRED BY CONFIRMING THE ADDITION OF RS. 255 LACS ASSESSED BY THE AO AS UNDISCLOSED INCOME IN FY 1994 - 95 ON THE BASIS OF DUMB DOCUMENT (PAGE 15 OF ANN - A - 2) SHRI S K DIXIT V ACIT ITA NO IT (SS) 19/DEL/2013 BLOCK PERIOD 1989 - 90 TO 1999 - 2000 PAGE 2 PURELY ON THE BASIS OF SUSPICION, SURMISES AND CONJECTURES, WITHOUT BRINGING ANY CORROBORATIVE EVIDENCE ON RECORD AND IN SHEER DISREGARD TO EXPLANATION OF THE APPELLANT AND SETTLED LAWS. 2. THE LD CIT(A) - XXXII, NEW DELHI ERRED BY CONFIRMING THE ADDITION O F RS. 5 LACS ASSESSED BY AO AS UNDISCLOSED INCOME IN FY 1996 - 97 ON THE BASIS OF PAGE NO. 88 OF ANN. A - 4, WITHOUT GIVING ANY CREDENCE TO THE DOCUMENTARY EVIDENCES, EXPLANATION AND THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE LD CIT(A) - XXXII, NEW DELHI H AS ERRED BY CONFIRMING THE ADDITION OF RS. 125188/ - ASSESSED BY THE AO AS UNDISCLOSED INCOME IN FY 1998 - 99 ON THE BASIS OF CASH VOUCHERS UNSIGNED BY THE APPELLANT, THE SAME ACTION IS AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. THE LD CIT(A) - XXXII, NEW DELHI HAS ERRED BY CONFIRMING THE ADDITION OF RS 482000/ - (RS. 322000/ - IN FY 1994 - 95 AND RS. 1600/ - IN AY 1996 - 97) ASSESSED BY AO AS UNDISCLOSED INCOME, ON THE BASIS OF FDRS IN THE NAME OF MRS. REKHA DIXIT RS. 160000/ - , SANJUTA SH ARMA RS. 275000/ - , DR. NK DIXIT RS. 26000/ - AND RK DIXIT RS. 21000/ - , THIS ACTION IS ARBITRARY, ILLEGAL AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE, THUS THESE ARE IF UNDISCLOSED MUST BE ASSESSED IN THE HANDS OF THE THEIR BENEFICIARIES. SHRI S K DIXIT V ACIT ITA NO IT (SS) 19/DEL/2013 BLOCK PERIOD 1989 - 90 TO 1999 - 2000 PAGE 3 5. THE LD CIT(A) - XXXII, NEW DELHI HAS ERRED BY CONFIRMING THE ADDITION OF RS. 100000/ - AS UNDISCLOSED INCOME IN FY 1993 - 94 WHICH IS ARBITRARY AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. AT THE COMMENCEMENT OF THE HEARING, THE LD A UTHORISED REPRESENTATIVE SU BMITTED THAT GROUND NO. 3 AND 5 OF THE APPEAL ARE NOT PRESSED.. THEREFORE, GROUND NOS. 3 AND 5 ARE DISMISSED. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL EARNING INCOME FROM SALARY, DIVIDEND, INTEREST ETC . HE FILED HIS LAST RE TURN OF INCOME FOR ASSESSMENT YEAR 1995 - 96 AT RS. 1215765/ - . 4. INCOME TAX DEPARTMENT CONDUCTED SEARCH U/S 132 OF THE ACT ON 02.07.1999 ON JAIPRAKASH INDUSTRIES LIMITED GROUP WHERE IN VARIOUS PREMISES WERE COVERED. THE ASSESSEE IS SON IN LAW OF SHRI JP GAUR, CHAIRMAN OF THE JP GROUP. THEREFORE, THE SEARCH WAS ALSO CONDUCTED ON PREMISES OF SHRI SK DIXIT , THE APPELLANT. THE NOTICE U/S 158BC WAS ISSUED ON 12.09.2011 AND FURTHER NOTICES WE RE ISSUED. ASSESSEE DID NOT FILE ANY RETURN OF INCOME FOR BLOCK PERIOD . CONSEQUENTLY ASSESSMENT U/S 153BC RWS 144 OF THE ACT WAS PASSED ON 30.7.2001. ASSESSEE PREFERRED PETITION BEFORE LD CIT DELHI - V , NEW DELHI U/S 264 OF THE ACT WHO VIDE ORDER DATE D 12/7/2010 DIRECTED LD A O TO PASS FRESH ASSESSMENT ORDER. CONSEQUENTLY, ASSESSMENT U/S 158BC WAS PASSED ON 30.12.2011 AT AN INCOME OF RS. 59027313/ - . LD. AO MADE SEVERAL ADDITIONS . THE ASSESSEE AGGRIEVED WITH THE ORDER OF THE LD AO PREFERRED APPEAL BEFORE THE LD CIT(A) WHO VIDE ORDER DATED 28.03.2013 PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. THEREFORE, THE ASSESSEE IS IN APPEAL BEFORE US. ASSESSEE CONTESTS SOME OF THE ADDITIONS MADE BY THE LD AO CONFIRMED BY THE LD CIT (A). SHRI S K DIXIT V ACIT ITA NO IT (SS) 19/DEL/2013 BLOCK PERIOD 1989 - 90 TO 1999 - 2000 PAGE 4 5. GROUND NO 1 OF APPEAL IS CHALLENGING THE ADDITION OF RS. 2 . 55 CRORES MADE BY THE LD AO BASED ON SEIZED PAPERS. DURING THE COURSE OF SEARCH PAGE 15 OF ANNEXURE A - 2 WAS FOUND . ACCORDING TO THE LD AO , PAPER REVEALS THAT ONE SHRI N D GUPTA HAD RECEIVED OR WAS TO PAY RS. 2.55 CRORE S OUT OF WHICH HE HAD PAID/ RECEIVED RS. 111 LACS. THE PAPER HAD FURTHER REFERENCE OF CHEQUE PAYMENT OR RECEIPT OF RS 31 LAKHS. ON INQUIRY, ASSESSEE SUBMITTED THAT THE PAPER DOES NOT BELONG TO THE ASSESSEE , THE TRANSACTION ALSO DO NOT BELONG TO THE ASSES SEE OR ANY OF THE RELATED COMPANIES. IT WAS FURTHER SUBMITTED THAT THERE IS NO DENOMINATION SUCH AS LA KHS , MENTIONED IN ANY OF THE PAPER. IT IS ALSO NOT KNOWN THAT WHETHER THE TRANSACTION IS SHOWING PAYMENT OF MONEY OR RECEIPT OF MONEY. THE ASSESSEE FURTHE R STATED THAT DATES MENTIONED IN THESE TRANSACTION SHOWS THAT THEY PERTAINED TO FY 1994 - 95 AND NOT FY 1999 - 2000. 6. LD AO REJECTED CONTENTION OF THE ASSESSEE HOLDING THAT SINCE THE DOCUMENT WAS SEIZED FROM THE PREMISES OF THE ASSESSEE THE PROVISIONS OF SECTION 132(4A) APPLIES AND DOCUMENTS BELONGS TO THE ASSESSEE AND THE CONTENTS ARE TRUE. THEREFORE, THE ADDITION OF RS. 2.55 CRORES WAS MADE AS UNDISCLOSED INCOME FOR FY 1994 - 95 PERTAINING TO BLOCK PERIOD OF 1989 - 1990 TO 1999 - 2000. ASSESSEE PREFERRED APPEAL BEFORE THE LD CIT(A). THE LD CIT(A) ALSO DID NOT APPRECIAT E THE ARGUMENT OF THE ASSESSEE AND HELD THAT ONUS WAS ON THE APPELLANT TO EXPLAIN THE TRANSACTION. THEREFORE, ASSESSEE IS IN APPEAL BEFORE US VIDE GROUND NO. 1. 7. THE LD AUTHORISED REPRESENTATIVE SUBMITTED THE COPY OF THE SEIZED PAPER AT PAGE NO. 18 AND 19 OF THE PAPER BOOK AND SUBMITTED THAT THIS PAPER THOUGH WAS FOUND AT THE RESIDENCE OF THE ASSESSEE, IT DOES NOT HAVE ANY REFERENCE OF ANY TRANSACTION OF THE ASSESSEE AS WELL AS ANY OF ITS CONCERNS . HE FURTHER SUBMITTED THAT DOCUMENT ALSO DO NOT SHOW NAME OF THE ASSESSEE OR ANY OF THE CONCERNS PERTAINING TO THE ASSESSEE. HE FURTHER STATED THAT ABOVE DOCUMENT IS NOT IN THE HANDWRITING OF THE SHRI S K DIXIT V ACIT ITA NO IT (SS) 19/DEL/2013 BLOCK PERIOD 1989 - 90 TO 1999 - 2000 PAGE 5 ASSESSEE. IT WAS STATED THAT THERE IS NO CORROBORATIVE EVIDENCE FOUND DURING THE COURSE OF SEARCH. IN THE END, HE SUBMITTED THAT IT IS DUMB DOCUMENT AND THE ADDITION MADE BY THE LOWER AUTHORITIES IS NOT CORRECT. HE FURTHER STATED THAT PRESUMPTION U/S 132(4A) ARE REBUTTABL E PRESUMPTION. HE RELIED ON THE DECISION OF HON'BLE DELHI HIGH COURT IN CASE OF CIT VS. PRAVEEN JUNEJA ( ITA NO . 56/2017 ) . HE ALSO RELIED ON THE DECISION OF PCIT VS. DELCO INDIA PVT. LTD 37 TAXMANN.COM 357 OF HON'BLE DELHI HIGH COURT TO SAY THAT NO ADDITION COULD BE MADE BASED ON LOSE PAPER FOUND DURING THE COURSE OF SEARCH WHEN ASSESSEE CLEARLY DENIED HAVING ANY LINK AS PER THOSE PAPERS. WITH RESPECT TO THE PROVISION 292C HE STATED THAT SUCH PRESUMPTION REMAINS ONLY T ILL THE SEARCH AND DOES NOT EXTEND UP TO MAKING ADDITION . 8. THE LD DEPARTMENTAL REPRESENTATIVE VEHEMENTLY REFERRED TO PARA NO. 4.1 OF THE LD CIT ( A) AND SUBMITTED THAT IT IS PRESUMPTION OF SECTION 292C THAT SUCH PAPERS BELONG TO THE ASSESSEE AND TRANSACTION S PERTAIN TO HIM. SUCH EXTENSION IS ALSO APPLICABLE TO ASSESSMENT PROCEEDINGS. IN VIEW OF THIS, HE SUBMITTED THAT LD AO HAS CORRECTLY MADE THE ABOVE ADDITION. THE LD DR VEHEMENTLY RELIED ON THE DECISION OF CIT VS. SONA L CONSTRUCTION (2012 - TIOL - 851 - H.C. - DE L - IT), CIT VS. NARESH KUMAR AGARWALA , 331 ITR 510, MAHAVIR PRASAD RUNGTA VS. CIT 43 TAXMANN.COM 328, BHAGIRATH ENGINEERING LTD VS. ACIT 379 ITR 244 AND BALDEV RAJ VS. CIT 2 TAXMANN.COM 335. 9. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS. APPARENTLY, D URING THE SEARCH , A DOCUMENT WAS FOUND WHERE ON THE TOP OF IT , NDG WAS WRITTEN AND AGAINST THE FIVE DATES, SOME FIGURES WERE WRITTEN . AGAINST ONE FIGURE THERE WAS NO DATE. ON THE BACKSIDE OF THE PAPER A CHEQUE OF RS. 31 LACS IS MENTIONED AND SIMILARLY CERTAIN FIGURES WERE MENTIONED AGAINST CERTAIN DATES. THE ASSESSEE HAS DENIED THAT ANY OF HIS CONCERNS OR ASSESSEE HIMSELF HAS RECEIVED ANY SUCH CHEQUE. THE LD ASSESSING OFFICER HAS ALSO NOT CORROBORATED THAT CHEQUE OF RS 31 LAKHS HAS BEEN RECEIVED OR PAID SHRI S K DIXIT V ACIT ITA NO IT (SS) 19/DEL/2013 BLOCK PERIOD 1989 - 90 TO 1999 - 2000 PAGE 6 IN ANY OF THE BANK ACCOUNTS OF THE ASSESSEE OR ANY OF THE RELATED CONCERNS. THE LD ASSESSING OFFICER ALSO COULD NOT SHOW THAT WHETHER THE FIGURES STATED IN THOSE LOOSE PAPERS ARE TRANSACTI ON OF THE LOAN RECEIVED OR PAID. IT IS ALSO NOT KNOWN THAT WHAT THE MEANING OF THE WORD NDG IS . THE LD ASSESSING OFFICER HAS INTERPRETED THE SAME AS MR. ND GUPTA, HOWEVER IT WAS NOT SHOWN THAT WHO IS MR. ND GUPTA AND HOW IS HE RELATED COMMERCIALLY WITH T HE ASSESSEE. IF THE AO HAS ANY INCLINATION WHO IS MR. N D GUPTA , SUCH PERSON WAS ALSO NOT EXAMINED. THE LD ASSESSING OFFICER HAS FURTHER INTERPRETED THE FIGURES WRITTEN IN DOUBLE DIGIT AS FIGURES IN LAKHS . ON LOOKING AT THE PAPER , IT IS APPARENT THAT I T DOES NOT CONTAIN ANY REFERENCE OF THE ASSESSEE OR ANY OF THE CONCERNS IN WHICH THE ASSESSEE HAS FINANCIAL INTEREST. MOST SURPRISING THE LD AO WITHOUT ASCERTAINING WHETHER THE TRANSACTION IS OF LOAN TAKEN OR REPAID BY THE ASSESSEE. IN VIEW OF THIS IT IS APPARENT THAT THE LOOSE PAPER DOES NOT HAVE ANY CREDIBILITY BASED ON WHICH ANY ADDITION CAN BE MADE . UNDISPUTEDLY, THE LOOSE PAPER IS NOT IN THE HANDWRITING OF THE ASSESSEE AS WELL AS NO CORROBORATIVE MATERIAL WAS BROUGHT ON RECORD TO REFLECT THAT ANY OF THE TRANSACTIONS PERTAIN TO ASSESSEE . 10. COMING TO THE ISSUE OF SECTION 132(4A) AS WELL AS SECTION 292C HAS HELD BY THE COORDINATE BENCH IN ITA NO. 221/DEL/2011 DATED 09.09.2011 , THAT PRESUMPTION CONTAINED IN THE SECTION IS A REBUTTABLE PRESUMPTION AND IT IS FOR THE COURTS TO MAKE SUCH A PRESUMPTION OR NOT. IN THIS PARTICULAR CASE EVEN IF SUCH PRESUMPTION IS RAISED THE SAME HAS BEEN REBUTTED BY THE ASSESSEE SUBMITTING THAT THE IMPUGNED SEIZED PAPER DOES NOT BELONG TO HIM OR HIS FAMILY OR HIS COMMERCI AL CONCERNS AND DOES NOT CONTAIN ANY TRANSACTION RELATED TO THE ASSESSEE. IN VIEW OF THIS , ACCORDING TO US , IT IS MERELY A DUMB DOCUMENT. THE IDENTICAL ISSUE HAS BEEN DECIDED BY HON'BLE DELHI HIGH COURT IN CIT VS. PRAVEEN JUNEJA [ ITA NO. 56/2017 DATED 14.0 7.2017 ] WHEREIN, THE ORDER OF THE COORDINATE BENCH DELETING THE ADDITION ON THE BASIS OF DOCUMENTS FOUND DURING THE COURSE OF SEARCH SHRI S K DIXIT V ACIT ITA NO IT (SS) 19/DEL/2013 BLOCK PERIOD 1989 - 90 TO 1999 - 2000 PAGE 7 WHEREIN, CERTAIN DOUBLE DIGIT FIGURES WERE MENTIONED WHICH ARE INTERPRETED BY THE LD AO AS FIGURES IN LACS , THE ADDITION W AS DELETED AS IT DID NOT CONTAIN THE NAME OF THE ASSESSEE OR THE DETAILS MENTIONED ON THE SEIZED PAPER COULD NOT BE CORROBORATED BY REVENUE. THE HON'BLE HIGH COURT ALSO CONSIDER ED THE PROVI SION OF SECTION 292C OF THE ACT, CONFIRMING THE DELETION OF ADDITIO N. IN VIEW OF THE ABOVE FACTS AND RESPECTFULLY FOLLOWING THE DECISION OF HONORABLE DELHI HIGH COURT, WE DO NOT HAVE ANY HESITATION IN HOLDING THAT BASED ON THE SUCH LOOSE PAPER NO ADDITION CAN BE MADE. 11. HON DELHI HIGH COURT IN CIT V GIRISH CHAUDHARY 163 TAXMAN 608 WHERE THE ASSESSING OFFICER SEIZED A DOCUMENT CONTAINING ENTRY 48 DURING SEARCH OF THE PREMISES OF A COMPANY, IN WHICH THE ASSESSEE WAS A DIRECTOR. AS THE ASSESSEE DID NOT RENDER ANY EXPLANATION OF SAID ENTRY IN THE DOCUMENT, THE ASSE SSING OFFICER TREATED RS. 48 LAKHS AS ASSESSEES INCOME FROM UNDISCLOSED SOURCES. ON APPEAL, THE COMMISSIONER (APPEALS) DELETED THE ADDITION. ON REVENUES APPEAL, THE TRIBUNAL OBSERVING THAT NO ATTEMPT WHATSOEVER WAS MADE TO LINK THE ENTRY IN THE SEIZED DO CUMENT WITH ANY TRANSACTION CARRIED BY THE ASSESSEE IN HIS CAPACITY AS DIRECTOR OR BY HIS WIFE OR COMPANY TO SHOW THE AMOUNT IN FIGURE AS ASSESSABLE UNDISCLOSED INCOME, NO PROPER USE OF SEIZED MATERIAL WAS MADE TO ESTABLISH THAT ENTRIES IN THE SEIZED DOCUM ENT RELATED TO UNDISCLOSED INCOME OF THE ASSESSEE AND THAT THE SEIZED DOCUMENT WAS A DUMB DOCUMENT, UPHELD THE DELETION MADE BY THE COMMISSIONER (APPEALS). HONOURABLE COURT CONFIRMING THE FINDING OF THE TRIBUNAL HELD THAT UNDER CHAPTER XIV - B OF THE ACT, B EFORE AN ADDITION OF AN 'UNDISCLOSED INCOME' CAN BE MADE, THE ASSESSING OFFICER HAS TO BRING ON RECORD THE MATERIAL TO SHOW THAT ON EVIDENCE FOUND AS A RESULT OF SEARCH THERE IS AN UNDISCLOSED INCOME REPRESENTED BY CREDITS APPEARING IN THE BOOKS OF ACCOUNT . HENCE, IN THE PRESENT CASE, THERE IS NO MATERIAL ON RECORD TO SHOW AS TO ON WHAT SHRI S K DIXIT V ACIT ITA NO IT (SS) 19/DEL/2013 BLOCK PERIOD 1989 - 90 TO 1999 - 2000 PAGE 8 BASIS THE ASSESSING OFFICER HAS REACHED AT THE CONCLUSION THAT THE FIGURE 48 IS TO BE READ AS RS. 48 LAKHS. FACTS ARE NOT DIFFERENT BEFORE US. 12. NOW COMING TO THE DECISION RELIED UPON BY THE LD DEPARTMENTAL REPRESENTATIVE. THE FIRST DECISION WAS IN CASE OF CIT VS. SONAL CONSTRUCTION (SUPRA) WHEREIN, THE HON'BLE DELHI HIGH COURT IN PARA NO. 15 HAS HELD THAT PROVISION OF SECTION 292C CAN BE INVOKED EVEN DURING THE ASSESSMENT PROCEEDINGS AND SUCH PRESUMPTIONS ARE AVAILABLE TO THE REVENUE. HOWEVER, HONBLE COURT IN PARA NO. 17 HELD THAT IT IS NOT AN INVIOLABLE RULE APPLICABLE TO ALL SITUATION AND TO ALL CASES THAT EVERY SEIZED DOCUMENT SHOULD BE CORROBORATED BEFORE ANY ADDITION CAN BE MADE BASED ON THE DOCUMENTS FOUNDS DURING THE SEARCH. IT WAS SO HELD THAT WHERE THE CALCULATIONS AND COMPUTATION IN THE SEIZED DOCUMENTS ARE SO APPARENT THAT ITS PROBATIVE VALUE AND GENUINENESS CANNOT BE DOUBTED, NOTHING PREVENTS AO FROM MAKING AN A DDITION BASED ON IT. THE PAPERS FOUND IN THAT CASE THE DOCUMENTS WAS WRITTEN IN THE HANDWRITING OF ONE OF THE PARTNERS AS STATED BY ONE OF THE OTHER PARTNER IN HIS STATEMENT AND RELATED TO THE VARIOUS REAL ESTATE PROJECTS OF THE ASSESSEE FIRM. HOWEVER, WHERE THE DOCUMENTS IN THE IMPUGNED CASE BEFORE US , DOES NOT SHOW ANY REFERENCE OF COMMERCIAL TRANSACTIONS AND THERE IS NO REFERENCE TO WHOM IT PERTAINS TO AND AO IS ALSO NOT SURE THAT WHETHER THE TRANSACTION IS OF GIVING LOAN OR RECEIVING THE LOAN. THE OT HER FOUR DECISIONS RELIED ON BY THE LD DEPARTMENTAL REPRESENTATIVE ARE WITH RESPECT TO THE PRESUMPTION U/S 132(4A) OF THE ACT. IN VIEW OF ABOVE FACTS WE REVERSE THE ORDER OF THE LD CIT(A) IN CONFIRMING THE ABOVE ADDITION OF RS. 2.55 LACS BASED ON THE SEIZE D DOCUMENTS. THE LD ASSESSING OFFICER IS DIRECTED TO DELETE THE SAME. IN THE RESULT GROUND NO. 1 OF THE APPEAL IS ALLOWED. 13. GROUND NO. 2 OF THE APPEAL IS AGAINST CONFIRMATION OF ADDITION OF RS. 5 LAKHS BASED ON PAGE NO. 88 OF ANNEXURE A4 FOUND DURING THE COURSE OF SEARCH. ACCORDING TO THE LD AO THE ABOVE PAPER RELATE TO PAYMENT FOR THE PROPERTY ON 04.02.97 THE ASSESSEE SUBMITTED THAT THESE TRANSACTION DO SHRI S K DIXIT V ACIT ITA NO IT (SS) 19/DEL/2013 BLOCK PERIOD 1989 - 90 TO 1999 - 2000 PAGE 9 NOT BELONG TO THE ASSESSEE, HOWEVER, THE LD AO MADE ADDITION RELYING ON THE PROVISION OF SECTION 1 32(4A). THE ASSESSEE AGITATED THIS ISSUE BEFORE THE LD CIT(A) WHO CONFIRMED THE SAME. 14. THE LD AR ON APPEAL SUBMITTED THAT THE ABOVE PAPER DOES NOT BELONG TO THE ASSESSEE, NOT IN THE HANDWRITING OF THE ASSESSEE NOT RELATED TO ANY OF THE COMPANY OF THE ASSES SEE. HE SUBMITTED THAT NO SUCH TRANSACTION HAVE BEEN ENTERED INTO BY THE ASSESSEE. HE FURTHER REFERRED TO PAGE NO. 21 OF THE PAPER BOOK AND ANOTHER DOCU M ENT FOUND DURING THE COURSE OF SEARCH WAS PLACED AT PAGE NO. 87 OF THE P A PER BOOK AND SUBMITTED THA T THE TRANSACTION PERTAINED TO ASIAN AGRO PRODUCTS. IT WAS FURTHER STATED THAT SHRI MUNSI SABARWAL IS A PROPERTY DEALER AND THE TRANSACTIONS, WHICH RELATES TO PAYMENT FOR PROPERTY , WHICH IS DULY REFLECTED IN THE ACCOUNTS OF THE RELEVANT YEAR THEREFORE, I T IS NOT AN UNDISCLOSED INCOME. 15. THE LD DEPARTMENTAL REPRESENTATIVE REITERATED THE CONTENTS OF THE ORDER OR THE LOWER AUTHORITIES AND SUBMITTED THAT ADDITION HAS BEEN CORRECTLY MADE. HE FURTHER RELIED ON ALL THE DECISIONS WHICH WERE RELIED ON IN GROUND NO. 1 16. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS. THE ASSESSEE HAS SUBMITTED THAT THE ABOVE TRANSACTION HAVE BEEN REFLECTED IN THE BOOKS OF ACCOUNTS OF THE ONE OF THE COMPANIES AND LOOSE PAPER STATING THAT WAS ALSO FOUND DURING THE COURSE OF SEARC H. IT WAS STATED THAT IT IS ACCOUNTED FOR. THEREFORE WE SET ASIDE THIS ISSUE BACK TO THE FILE OF THE LD AO WITH DIRECTION THAT THIS ISSUE MAY BE VERIFIED AFRESH AND IF THE TRANSACTION IS ALREADY RECORDED IN THE RESPECTIVE BOOKS OF TRANSACTING PARTIES, NO A DDITION BE MADE IN THE HANDS OF THE ASSESSEE. ACCORDINGLY, GROUND NO 2 IS SET ASIDE TO THE FILE OF AO FOR FRESH ADJUDICATION. 17. GROUND NO. 4 OF THE APPEAL RELATED TO THE ADDITION OF RS. 482000/ - AS UNDISCLOSED INCOME BASED ON FDRS IN THE NAME OF VARIOUS PERSONS. DURING THE COURSE OF SEARCH THE ANNEXURE 42 AND 43 WERE SEIZED WHICH SHRI S K DIXIT V ACIT ITA NO IT (SS) 19/DEL/2013 BLOCK PERIOD 1989 - 90 TO 1999 - 2000 PAGE 10 WERE THE FDRS OF JAI PRAKASH INDUSTRIES LTD OF RS. 10000/ - EACH IN THE NAME OF MRS. REKHA DIXIT, MRS. SANJULA SHARMA, DR. NK DIXIT AND MR. RK DIXIT. BEFORE LD AO AND LD CIT(A) THE ASSESSEE SUBMITTED THAT THESE FIXED DEPOS I TS BELONG TO THE RESPECTIVE PERSON IN WHOSE NAME THEY STAND AND NOT TO THE ASSESSEE . THE LD ASSESSING OFFICER REJECTED THE CONTENTION IN ABSENCE OF ANY DOCUMENTARY EVIDENCE SUBMITT ED BY THE ASSESSEE AND FURTHER RELYING ON THE PROVISIONS OF SECTION 132(4A) OF THE ACT. THE LD CIT(A) ALSO CONFIRMED THE SAME HOLDING THAT EXCEPT THE REITERATING THE SUBMISSION BEFORE THE LD AO ASSESSEE COULD NOT PRODUCE ANY OTHER EVIDENCE. 18. THE LD AR SUB MITTED THAT ALL THESE FDRS BELONG TO RESPECTIVE PERSONS IN WHOSE NAME THEY STAND AND THE INVESTMENT MADE IN THIS FIXED DEPOSITS ARE DISCLOSED BY THEM IN THEIR RETURN OF INCOME. HE SUBMITTED THAT SUCH DETAILS WERE SUBMITTED BEFORE THE LD AO HOWEVER, SAME WE RE NOT CONSIDERED BY THE LOWER AUTHORITIES. HE SUBMITTED THAT ALL THESE FIXED DEPOSITS ARE OF JAI PRAKASH INDUSTRIES LTD AND THE DETAILS OF THE FUNDS ARE FORM THE BANK ACCOUNT OF THE RESPECTIVE INVESTORS IN WHOSE NAME THE FIXED DEPOSITS RECEIPTS ARE SHOWN. HE FURTHER SUBMITTED THAT FDR HOLDERS ARE FILING REGULAR RETURNS. HE SUBMITTED THE PAN OF THOSE PERSONS. HE THEREFORE, IN THE END SUBMITTED THAT AN OPPORTUNITY MAY BE GRANTED TO THE ASSESSEE TO PROVE HIS CASE BEFORE THE LD A O. 19. THE LD DR SUBMITTED THA T ASSESSEE HAS NOT FURNISHED ALL THOSE DETAILS BEFORE THE LD ASSESSING OFFICER AND THEREFORE, THE ADDITION HAS BEEN MADE. SUCH DETAILS WERE ALSO NOT FURNISHED BEFORE THE LD CIT(A). EVEN THEN HE FAIRLY STATED THAT IF THE ASSESSEE CAN SHOW BEFORE THE LD ASS ESSING OFFICER THAT DEPOSIT BELONGS TO THE OTHER PERSONS AND THEY ARE ASSESSED TO TAX THEN ISSUE MAY BE SET ASIDE. 20. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS. IN FACT, THE FIXED DEPOSITS STATED BY THE ASSESSING OFFICER ARE IN THE NAME OF DIFFERENT SHRI S K DIXIT V ACIT ITA NO IT (SS) 19/DEL/2013 BLOCK PERIOD 1989 - 90 TO 1999 - 2000 PAGE 11 PERSONS WHO ARE THE FAMILY MEMBERS OF THE ASSESSEE. THE ASSESSEE HAS STATED THAT ALL THESE PERSONS ARE REGULARLY ASSESSED TO TAX AND THE AMOUNT INVESTED IS FROM THEIR REGULAR SOURCE OF INCOME. IT IS ALSO A FACT THAT ALL THESE FDRS ARE OF M/S. JAI PRAKASH INDUSTRIES LTD, WHICH IS PRIVATE COMPANY, THEREFORE, THE SOURCE OF FUNDS MAY ALSO BE VERIFIED FROM THAT COMPANY ALSO . ASSESSEE HAS STATED THAT ALL THESE DETAILS WERE SUBMITTED BEFORE THE LD ASSESSING OFFICER. HOWEVER, SAME WERE NOT CONSIDERED. THEREFORE, I N THE INTEREST OF JUSTICE WE SET ASIDE THIS GROUND OF APPEAL TO THE FILE OF THE LD AO WITH A DIRECTION TO VERIFY THE INVESTMENT OF RESPECTIVE PARTIES AND DECIDE THE ISSUE AFRESH. IN THE RESULT GROUND NO. 4 OF THE APPEAL IS ALLOWED WITH ABOVE DIRECTION. 21. IN THE RESULT APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23 / 0 3 / 2018 . - SD/ - - SD/ - ( AMIT SHUKLA ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 23/ 03 / 2018 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI