Shri Kamal Goyal, Indore V. THE DCIT (CENTRAL)-I, Indore

ITSSA 212/IND/2016

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8712 (ITAT-INDORE)
• Duration Of Justice: 4 year(s) 8 month(s) 15 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 27-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 05-05-2021
• Assessment Year: 2012-2013
• Appeal Filed On: 11-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S MANTRI
• Assessee Lawyers: S N AGRAWAL; PANKAJ MOGRA CAS
• Keywords: Search and seizure; Loose papers; Document seized; Block assessment; Revised return; Documents seized
• Section: 143(3); 153A; 234B; 143(1); 143(2); 207; 13; 153; 147; 132; 139

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE HONBLE MANISH BORAD, ACCOUNTANT MEMBER AND BEFORE HONBLE MADHUMITA ROY, JUDICIAL MEMBER IT(SS)A NOS.211 & 212/IND/2016 ASSESSMENT YEARS 2011-12 & 2012-13 SHRI KAMAL GOYAL : APPELLANT C/O S V AGRAWAL & ASSOCIATES DADI DHAM, 24 JOY BUILDERS COLONY, NEAR RAFAEL TOWER, OLD PALASIA, INDORE PAN ABHPG7937N V/S THE DCIT CENTRAL-I, INDORE (M.P.) : RESPONDENT IT(SS)A NOS.228 & 229/IND/2016 ASSESSMENT YEARS 2011-12 & 2012-13 THE DCIT, CENTRAL-I, INDORE (M.P.) : APPELLANT V/S SHRI KAMAL GOYAL 167-168, PRINKANKO COLONY, : RESPONDENT FLAT NO. 203, SUKH NIWAS APARTMENT, INDORE PAN ABHPG7937N IT(SS)A NOS.211&212/IND/2016 A.Y.2011-12 & 201213 IT(SS)A NOS.228&229/IND/2016 A.Y. 2011-12 & 2012-13 2 ASSESSEE BY SHRI S. N. AGRAWAL & PANKAJ MOGRA, CAS REVENUE BY SHRI S. S. MANTRI, CIT DR DATE OF HEARING 2 3 .0 6 .2021 DATE OF PRONOUNCEMENT 2 7 . 0 7 . 202 1 O R D E R PER BENCH:- THE BUNCH OF APPEALS FILED BY THE RESPECTIVE PARTI ES ARE DIRECTED AGAINST THE COMMON ORDERS DATED 15.09.2016 PASSED BY THE LD. CIT(A)-III, INDORE ARISING OUT THE ORDER DA TED 27.03.2015 PASSED BY THE LD. DCIT, CENTRAL-I, INDORE UNDER SEC TION 153 R.W.S. 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REF ERRED TO AS THE ACT) FOR A.Y. 2011-12 & 2012-13. SINCE THE ISSUES INVOLVED IN THESE APPEALS ARE IDENTICAL AND RELATE TO THE SAME ASSESSEE ARISING OUT OF A COMMON ORDER, THESE ARE HEARD ANALOGOUSLY AND ARE BEING DISPOSED BY A COMMON ORDER FOR THE SAKE OF CONVENIE NCE. IT(SS)A NO. 211/IND/2016 (A.Y. 2011-12):- 2. THE ASSESSEE HAS FILED THE APPEAL WITH THE FOLLO WING GROUNDS:- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN APPROVING THE ACTION OF SEARCH IN THE CASE OF THE A PPELLANT EVEN WHEN THE SEARCH AS EXECUTED ON THE PREMISE WAS NOT IN CONSONANCE WI TH THE PROVISION OF SECTION 132 OF THE INCOME TAX ACT. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LD. CIT(A) ERRED IN RESTRICTING THE BROKERAGE AT 2% OF THE TOTAL REC EIPT AS SHOWN IN THE ALLEGED CASH BOOK AS MAINTAINED BY THE APPELLANT FOR HIS MEMORY EVEN WHEN THE APPELLANT HAS OFFERED THE AMOUNT OF BROKERAGE ON RECEIPT BASIS IN HIS RETURN OF TOTAL INCOME. THE IT(SS)A NOS.211&212/IND/2016 A.Y.2011-12 & 201213 IT(SS)A NOS.228&229/IND/2016 A.Y. 2011-12 & 2012-13 3 ADDITION AS MADE BY THE ASSESSING OFFICER AND ALSO MAINTAINED BY THE LD. CIT(A) WAS THEREFORE WRONG AND UNCALLED FOR. 3. THE APPELLANT RESERVE ITS RIGHT TO ADD, ALTER OR DELETE ANY GROUND OF APPEAL ON OR BEFORE THE DATE OF FINAL HEARING. 3. PRACTICALLY THE APPELLANT HAS CHALLENGED THE ADD ITION IN RESPECT OF BROKERAGE @2% OF THE TOTAL RECEIPTS OF THE APPEL LANT AS RESTRICTED BY THE LD. CIT(A). 4. THE FACTS CULLED OUT FROM THE RECORDS IS THIS TH AT A SEARCH AND SEIZURE OPERATION UNDER SECTION 132 OF THE ACT WAS CARRIED OUT ON BUSINESS AS WELL AS RESIDENTIAL PREMISES OF THE SAA KAR GROUP OF INDORE ON 21.09.2012. THE ASSESSEE WAS ALSO COVERE D SINCE HE WAS HAVING CLOSE BUSINESS DEALING WITH THE SAID GROUP. WARRANT OF AUTHORIZATION UNDER SECTION 132 OF THE ACT WAS ISSU ED IN THE NAME OF THE ASSESSEE ALSO, NOTICES UNDER SECTION 153A WA S ISSUED FOR THE BLOCK ASSESSMENT YEARS COMMENCING FROM 2007-08 TO 2 012-13 ON 31.05.2013 FOLLOWED BY NOTICE UNDER SECTION 143(2) FOR THE RESPECTIVE ASSESSMENT YEARS ON 30.06.2014. THE ASS ESSEE ENGAGED IN THE BUSINESS OF PROPERTY BROKING WHERE ONE BROKE R REPRESENTS FROM THE SIDE OF THE BUYER AND OTHER FROM THE SIDE OF THE SELLER AND THE THIRD ONE CO-ORDINATES BETWEEN THE BUYERS AND THE SELLERS BROKER, AS THE PRACTICE FOLLOWED IN THE BUSINESS OF THE ASSESSEE AS PLACED BEFORE THE REVENUE. FURTHER THAT BROKERAGE @ 3% IS NOT RECEIVED IN EACH AND EVERY TRANSACTIONS AS STATED B Y THE ASSESSEE WHILE REPLYING TO THE SHOW-CAUSE NOTICE DATED 04.08 .2014 ISSUED BY THE LD. AO. IT(SS)A NOS.211&212/IND/2016 A.Y.2011-12 & 201213 IT(SS)A NOS.228&229/IND/2016 A.Y. 2011-12 & 2012-13 4 5. IT WAS FURTHER SUBMITTED BY THE ASSESSEE THAT US UALLY IN ROUTINE TRANSACTIONS THE RATE OF BROKERAGE VARIES B ETWEEN 1% TO 3% AND THE SAME IS DISTRIBUTED AMONGST THE BROKERS ASS OCIATED IN THE TRANSACTION. FURTHER THAT THE ASSESSEE FOLLOWS THE CASH SYSTEM OF ACCOUNTING AND HAS OFFERED THE INCOME AS AND WHEN A CTUALLY REALIZED BY HIM, NET OF THE BROKERAGE DISTRIBUTED A MONGST OTHER BROKERS. THE LD. AO ADDED THE ENTIRE CREDIT OF THE DIARY AS MAINTAINED BY THE ASSESSEE FOR HIS MEMORY AT HIS IN COME. THE LD. AO FURTHER ADDED AN AMOUNT OF BROKERAGE OF 3% OF TH E TOTAL CREDIT OF THE APPELLANT. THE LD. CIT(A) DELETED THE ENTIR E ADDITION MADE ON ACCOUNT OF CREDIT AS SHOWN IN DIARY AND RESTRICTED THE AMOUNT OF BROKERAGE @2% OF THE TOTAL RECEIPTS. HENCE THE INS TANT APPEAL BEFORE US. 6. AT THE TIME OF HEARING OF THE INSTANT APPEAL TH E LD. COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED BEFORE US THAT THE LD. CIT(A) HAS ERRED IN RESTRICTING THE BROKERAGE @ 2% OF THE TOTAL RECEIPT AS SHOWN IN THE ALLEGED CASH BOOK AS MAINTAINED BY THE APPELLANT FOR HIS MEMORY EVEN WHEN THE APPELLANT HAS OFFERED THE AMOUNT OF BROKERAGE ON RECEIPT BASIS IN HIS RETURN OF TOTAL I NCOME. HENCE, THE ADDITION AS MADE BY THE LD. AO AND AS ALSO MAINTAIN ED BY THE LD. CIT(A) IS WRONG AND UNCALLED FOR AND, THUS, LIABLE TO BE QUASHED. 7. ON THE OTHER HAND, THE LD. DR RELIED UPON THE OR DER PASSED BY THE LD. AO. IT(SS)A NOS.211&212/IND/2016 A.Y.2011-12 & 201213 IT(SS)A NOS.228&229/IND/2016 A.Y. 2011-12 & 2012-13 5 8. WE HAVE HEARD THE RIVAL SUBMISSIONS MADE BY THE RESPECTIVE PARTIES AND WE HAVE ALSO PERUSED THE RELEVANT MATER IALS AVAILABLE ON RECORD. 9. IT APPEARS THAT WHILE RESTRICTING THE ADDITION O F BROKERAGE AT 2% OF THE TOTAL RECEIPT THE LD. CIT(A) OBSERVED AS FOLLOWS:- 6.2 ON THE BASIS OF THE SEIZED DOCUMENTS ON WHICH THE NAMES OF THE BROKERS OF THE BUYER AND SELLER ARE MENTIONED IT IS REASONABLE TO ACCEPT THE CONTENTIONS OF THE APPELLANT THAT THE BROKERAGE RECEIVED IN A TRAN SACTION IS DISTRIBUTED AMONGST THE BROKERS INVOLVED IN EXECUTING THE SAID TRANSACT ION. HOWEVER, NEITHER ANY EVIDENCE HAS BEEN FOUND DURING THE SEARCH NOR HAS T HE APPELLANT PLACED ANY EVIDENCE ON RECORD TO WHOW AS TO HOW THE BROKERAGE RECEIVED IS DISTRIBUTED. AS DISCUSSED IN PARA 5.2 ABOVE THE NET AMOUNT OF BROKE RAGE RECEIVED BY THE APPELLANT AS PER THE SEIZED DOCUMENTS IS RS. 24,20, 28,695/- IN A.Y. 2011-12 AND RS. 35,69,80,859/- IN A.Y. 2012-13. AS DISCUSSED I N THE PRECEDING PARAGRAPH THE RATE OF BROKERAGE VARIES BETWEEN 1% TO 3% AND G IVEN THE TOTALITY OF THE CIRCUMSTANCES AND THE FACTS OF THE CASE I HOLD THAT IT IS REASONABLE TO ESTIMATE THE INCOME OF THE APPELLANT @2% OF THE NET RECEIPTS. A CCORDINGLY, THE TOTAL BROKERAGE INCOME RECEIVED BY THE APPELLANT AS PER THE TRANSAC TIONS APPEARING IN THE SEIZED DOCUMENTS IS WORKED OUT AT RS. 48,40,574/- (2% OF R S. 24,20,28.695/-) FOR A.Y. 2011-12 AND RS. 71,39,617/- (2% OF RS. 35,69,80,569 /-) FOR A.Y. 2012-13. GROUND NO. 3 IS PARTLY ALLOWED. IT IS A FACT THAT THE ENTIRE RECEIPT CANNOT BE ADD ED; IT IS ALSO A FACT THAT ADDITION @2% OF THE NET RECEIPTS OF THE B ROKERAGE INCOME ON ESTIMATION BASIS IS ALSO HIGH IN VIEW OF THE PAR TICULAR FACTS AND CIRCUMSTANCES OF THE INSTANT CASE AS ALREADY PLACED HEREINABOVE. HENCE, WE RESTRICT THIS ADDITION OF BROKERAGE AT .7 5% OF THE NET RECEIPTS BY THE APPELLANT. ASSESSEES APPEAL IS, T HEREFORE, PARTLY ALLOWED. IT(SS)A NO. 212/IND/2016 (A.Y. 2012-13):- 10. THESE GROUNDS OF APPEALS ARE IDENTICAL TO THAT OF THE ISSUES IT(SS)A NOS.211&212/IND/2016 A.Y.2011-12 & 201213 IT(SS)A NOS.228&229/IND/2016 A.Y. 2011-12 & 2012-13 6 ALREADY BEEN DEALT WITH BY US IN ITA NO.211/IND/201 6 FOR A.Y. 2011-12 AND IN THE ABSENCE OF ANY CHANGED CIRCUMSTA NCES THE SAME SHALL APPLY MUTATIS MUTANDIS. HENCE, THE APPEA L PREFERRED BY THE ASSESSEE IS ALSO PARTLY ALLOWED. IT(SS)A NO. 228/IND/2016(A.Y. 2011-12):- 11. THE REVENUE HAS FILED THE APPEAL WITH THE FOLL OWING GROUNDS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SES THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 31,61,92,920/- MADE BY THE A.O. ON ACCOUNT OF UNDISCLOSED RECEIPTS WITHOUT APPRECIATING THE FACTS AND EVIDENCES BROUGHT INTO LIGHT BY THE A.O. DURING ASSESSMENT PROCEEDINGS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS ES THE LD. CIT(A) ERRED IN STATING THAT THE ASSESSEE HAS EARNED 2% BROKERAGE A S AGAINST 3% ACCEPTED BY ASSESSEE IN HIS STATEMENTS RECORDED DURING SEARCH/P OST SEARCH AS WELL AS ASSESSMENT PROCEEDINGS. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS ES THE LD. CIT(A) ERRED IN STATING THAT INTEREST IS CHARGEABLE U/S. 234B(3), N OT AS PER PROVISION OF SECTION 234B(1) OF THE ACT. 12. FIRST GROUND:- THE DELETION OF ADDITION OF RS. 31,61,92,920/- MADE BY THE LD. AO ON ACCOUNT OF UNDISCLOSED RECEIP TS HAS BEEN CHALLENGED BEFORE US BY THE REVENUE. 13. WE HAVE HEARD THE RIVAL SUBMISSIONS MADE BY TH E RESPECTIVE PARTIES AND WE HAVE ALSO PERUSED THE RELEVANT MATER IALS AVAILABLE ON RECORD. 14. A SEARCH UNDER 132 OF THE ACT WAS EXECUTED ON 2 1.09.2012, PRIOR TO THAT THE ASSESSEE FILED HIS RETURN OF INCO ME FOR THE RELEVANT ASSESSMENT YEAR. HOWEVER, IN RESPONSE OF THE NOTIC E ISSUED UNDER IT(SS)A NOS.211&212/IND/2016 A.Y.2011-12 & 201213 IT(SS)A NOS.228&229/IND/2016 A.Y. 2011-12 & 2012-13 7 SECTION 153A OF THE ACT, THE ASSESSEE HAS FURTHER F ILED ITS RETURN OF INCOME DECLARING TOTAL INCOME AT RS. 6,58,190/- FOR A.Y. 2011-12. DURING THE COURSE OF SEARCH VARIOUS LOOSE PAPERS WE RE FOUND AND SEIZED FROM THE RESIDENTIAL PREMISES OF THE APPELLA NT. THE AO TOOK IN TO CONSIDERATION THAT THE DOCUMENTS BEING LPS A- 5, A-10 AND A- 12 REPRESENT THE CASH BOOK PREPARED BY THE APPELLAN T HIMSELF IN HIS OWN HANDWRITING AND OBSERVED THAT THE ASSESSEE NEVE R PROVIDED WORKING OF THESE CASH BOOKS NEITHER EXPLAINED THE C ONTENTS THEREOF DESPITE REPEATED OPPORTUNITIES AND ADDED THE AMOUNT OF RECEIPTS FOUND NOTED IN THE CASH BOOK AS UNDISCLOSED INCOME. HOWEVER, IN APPEAL THE LD. CIT(A) ISSUED SEVERAL LETTERS EXPLAI NING THE CONTENTS OF THE WORKING OF THESE CASH BOOKS AS WAS BROUGHT T O THE NOTICE OF THE LD. CIT(A) BY THE APPELLANT. SUCH FINDING IS A VAILABLE AT PAGE 16 TO 18 OF THE ORDER PASSED BY THE FIRST APPELLATE AU THORITY. 15. IN FACT, THE LD. AO WANTED THE ASSESSEE TO PROV IDE THE NAME OF THE BUYERS AND SELLERS. THE APPELLANT IS A BROKER AND HAD EXPLAINED THAT THERE ARE THREE BROKERS IN A TRANSACTION, ONE BROKER REPRESENTING THE BUYER, ONE WAS REPRESENTING THE SE LLER AND A THIRD ONE NEGOTIATED BETWEEN THE TWO BROKERS. THOUGH THI S PARTICULAR ASPECT OF THE MATTER WAS NOT TAKEN INTO CONSIDERATI ON IN ITS PROPER PERSPECTIVE BY THE LD. AO, THE LD. CIT(A) WHILE ADJ UDICATING THE APPEAL TOOK IT INTO CONSIDERATION OF THE SAME. IN FACT, THE LD. AO SIMPLY ADDED THE CREDIT SIDE OF THE CASH BOOK AND T HE DEDUCTION FOR THE DEBIT SIDE HAS ALSO NOT BEEN ALLOWED. APART FR OM THAT THE LD. AO HAS SIMPLY ADDED THE ENTIRE AMOUNT OF RECEIPTS T O THE INCOME OF IT(SS)A NOS.211&212/IND/2016 A.Y.2011-12 & 201213 IT(SS)A NOS.228&229/IND/2016 A.Y. 2011-12 & 2012-13 8 THE APPELLANT WHICH IS FOUND TO BE UNJUSTIFIED BY T HE LD. CIT(A). WHILE OBSERVING THE SAME THE LD. CIT(A) EXPLAINED A S FOLLOWS:- 4.3 DURING THE SEARCH NO ASSETS WERE FOUND IN THE POSSESSION OF THE APPELLANT WHICH WERE NOT RECORDED IN THE BOOKS OF ACCOUNTS AN D EVEN THE ASSESSING OFFICER HAS NOT MADE ANY ADDITION ON THIS ACCOUNT. THE ASSE SSING OFFICER HAS SIMPLY ADDED THE CREDIT SIDE OF THE CASH BOOK AND THE DEDU CTION FOR THE DEBIT SIDE HAS ALSO NOT BEEN ALLOWED. WITHOUT MAKING ANY INVESTMEN T IT IS ILLOGICAL TO PRESUME THE SALE OF THE SAME. THE APPELLANT HAS PROVIDED TH E WORKING OF THE PEAK AS CALCULATED ON THE BASIS OF THE LOOSE PAPERS FOND AN D SEIZED LISTED AS LPS A-5, A- 10 AND A-12. THE SAME IS REPRODUCED AS UNDER:- SR. N. REF PERIOD OP BALANCE RECEIPT PAYMENT CLOSING BALANCE MAXIMUM PEAK DATE AMOUNT (RS.) 1. LPS-12 13-05-11 TO 11-11-11 550000 151693845 152046845 197000 05-07- 11 1846100 2. LPS-5 31-05-11 TO 19-10-11 408300 128236721 128323021 322000 15-10- 11 2608699 3. LPS-10 15-11-11 TO 31-03-12 NIL 241591925 240082925 1509000 14-02- 12 4386800 01-04-12 TO 30-05-12 1509000 75504455 76605155 408300 07-05- 12 1696800 597026946 597057946 THE MAXIMUM AMOUNT OF PEAK COMES TO RS. 43,86,800/- AS ON 14/02/2012. THE ASSESSING OFFICER HAS SIMPLY ADDED THE ENTIRE AMOUN T OF RECEIPTS TO THE INCOME OF THE APPELLANT WHICH IS NOT JUSTIFIABLE. THE DEPARTM ENT EXECUTED SEARCH ON THE BUSINESS AND RESIDENTIAL PREMISES OF THE APPELLANT AND NO ASSETS WERE FOUND IN POSSESSION OF THE APPELLANT WHICH WERE NOT FOUND RE CORDED IN THE BOOKS OF APPELLANT. THE ASSESSING OFFICER HAS ALSO NOT MADE ANY ADDITION ON ACCOUNT OF ANY INVESTMENT MADE BY THE APPELLANT IN ANY OF THE IMMOVABLE PROPERTIES. IN VIEW OF THE ABOVE FACTS I AM OF THE VIEW THAT THE A SSESSING OFFICER WAS NOT JUSTIFIED IN ADDING THE ENTIRE AMOUNT OF RECEIPTS S HOWN IN THE CASH BOOK AS INCOME OF THE APPELLANT WITHOUT ALLOWING THE CREDIT OF THE DEBIT SIDE OF THE CASH BOOK. 16. FURTHER THAT THE QUESTIONNAIRE DATED 04.08.2014 WHEREIN THE AO HIMSELF THOUGH PROPOSED TO ADDED ONLY THE BROKER AGE AMOUNT IN RESPECT OF THE TRANSACTIONS AS RECORDED IN LPS A-5, LPS A-10 AND LPS A-12, ULTIMATELY AT THE TIME OF PASSING OF THE ASSESSMENT ORDER THE ENTIRE AMOUNT SHOWN ON THE CREDIT SIDE IN THE C ASH BOOK OF THE IT(SS)A NOS.211&212/IND/2016 A.Y.2011-12 & 201213 IT(SS)A NOS.228&229/IND/2016 A.Y. 2011-12 & 2012-13 9 SEIZED DOCUMENT WAS ADDED TO THE INCOME OF THE APPE LLANT. THIS WAS, HOWEVER, NOT FOUND ACCEPTABLE BY THE LD. CIT(A ) AS IT IS EVIDENT FROM PARAGRAPH 4.4 AND 4.5 OF THE ORDER PASSED BY H IM. FINALLY WHILE DELETING THE ADDITION MADE BY THE LD. AO, THE LD. CIT(A) OBSERVED AS FOLLOWS:- 4.6 THE UNDISPUTED FACTS OF THE CASE ARE THAT THE APPELLANT ACTS AS A PROPERTY BROKER. NO ASSETS WERE FOUND IN POSSESSION OF THE A PPELLANT WHICH WERE NOT RECORDED IN HIS BOOKS OF ACCOUNTS DURING THE COURSE OF SEARCH. THE SEIZED DOCUMENTS FOUND IN POSSESSION OF THE APPELLANT WHIC H HAVE BEEN WRITTEN BY HIM BASED ON WHICH THE ENTIRE ADDITION HAS BEEN MADE CL EARLY INDICATE THE NAME OF THE BROKER OF THE SELLER AND BUYER AND THE PLOT NO. IN MOST OF THE CASES. THE MERE INABILITY ON THE PART OF THE APPELLANT TO PROVIDE T HE NAME OF THE ACTUAL BUYER AND SELLER CANNOT BE THE SOLE BASIS FOR ADDING THE ENTI RE CREDIT SIDE OF THE RECEIPTS TO THE INCOME OF THE APPELLANT. THE ASSESSING OFFICER COULD HAVE COLLECTED THE INFORMATION FROM THE SUB-REGISTRAR OFFICER REGARDIN G THE BUYERS AND SELLERS. WHERE CERTAIN DOCUMENTS ARE FOUND IN THE SEARCH FROM THE PREMISES OF THE ASSESSEE THEN A PRESUMPTION IS DRAWN UNDER SECTION 132(4A) THAT T HE TRANSACTIONS RECORDED THEREIN BELONG TO THE ASSESSEE. BUT SUCH PRESUMPTIO N IS NOT ABSOLUTE. PRESUMPTION UNDER SECTION 132(4A) IS REBUTTABLE AS THE WORDS USED IN THE SECTION ARE IT MAY BE PRESUMED. UNDER SECTION 132(4A) LIK E IN SECTION 114 OF EVIDENCE ACT, THE WORDS USED ARE MAY BE PRESUMED. IT IS NO T A MANDATE THAT WHENEVER BOOKS OF ACCOUNT, ETC. ARE SEIZED, THE AUTHORITY SH ALL NECESSARILY DRAW THE PRESUMPTION IRRESPECTIVE OF ANY OTHERS FACTS, WHICH MAY DISSUADE THE AUTHORITIES FROM DOING SO. RELIANCE IS PLACED ON CIT VS. S.M.S. INVESTMENT CORPORATION (P) LTD. (1994) 207 ITR 364 (RAJ) AND ITO VS. T. ABDUL MAJEE D (1988) 169 ITR 440 (KER). THE TOTALITY OF CIRCUMSTANCES AND PREPONDERANCE OF PROBABILITY HAS TO BE TAKEN INTO ACCOUNT BEFORE REJECTING THE EXPLANATION FURNI SHED BY THE APPELLANT. AS IN THE PRESENT CASE IT HAS NOT BEEN DENIED THAT THE APPELL ANT IS A PROPERTY BROKER AND NO PROOF OF UNDISCLOSED INVESTMENTS HAS BEEN FOUND DUR ING THE SEARCH, I FIND THAT THE ASSESSING OFFICER IS NOT JUSTIFIED IN ADDING TH E ENTIRE RECEIPTS SHOWN ON THE CREDIT SIDE IN THE SEIZED CASH SHEETS AS INCOME OF THE APPELLANT. ONLY THE BROKERAGE INCOME CAN BE ESTIMATED IN THE APPELLANT S CASE AND THE ASSESSING OFFICER HAD HIMSELF IN THE SHOW CAUSE NOTICE PROPOS ED TO ADD THE AMOUNT OF BROKERAGE ONLY. HONBLE JABALPUR BENCH OF ITAT IN T HE CASE OF GAURAV KUMAR SHARMA VS. ACIT AS REPORTED IN 160 TTJ 665 AND HON BLE PUNE BENCH OF ITAT IN THE CASE OF RAMANLAL P CHORDIA VS. ACIT AS REPORTED IN 87 TTJ 0713 HAVE EXPRESSED SIMILAR VIEW. THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE THE ADDITION OF RS. 31,61 ,92,920/- AND RS. 46,74,50,392/- MADE TO THE INCOME OF THE APPELLANT IN THE A.YS. 2011-12 AND 2012-13 RESPECTIVELY IS DELETED. GROUND NO. 2.1 IS ALLOWED FOR A.YS. 2011-12 AND 2012-13. IT(SS)A NOS.211&212/IND/2016 A.Y.2011-12 & 201213 IT(SS)A NOS.228&229/IND/2016 A.Y. 2011-12 & 2012-13 10 FROM THE ABOVE IT APPEARS THAT INABILITY ON THE PA RT OF THE APPELLANT TO PROVIDE THE NAMES OF THE ACTUAL BUYERS AND SELLERS AS ASKED FOR BY THE LD. AO WAS SOLE BASIS FOR ADDING T HE ENTIRE CREDIT SIDE OF THE RECEIPTS TO THE INCOME OF THE APPELLANT WHICH, AMOUNTING TO US, IS NOT SUSTAINABLE NEITHER JUSTIFIABLE. IT IS NEITHER MANDATORY ON THE PARTIES OF THE AUTHORITIES TO PRESUME THAT W HENEVER BOOKS OF ACCOUNTS ARE SEIZED, THE SAME BELONGS TO THE ASSESS EE IRRESPECTIVE OF ANY OTHER FACTS WHICH MAY DISSUADE THE AUTHORITI ES FROM DOING SO. THEREFORE, PREPONDERANCE OF PROBABILITY HAS TO BE TAKEN INTO CONSIDERATION BEFORE REJECTING THE EXPLANATION FURN ISHED BY THE APPELLANT. WHEN THE APPELLANT HAS NOT DENIED THE F ACT OF BEING A PROPERTY BROKER THEN IN THE ABSENCE OF UNDISCLOSED INVESTMENT FOUND DURING SEARCH THE AO IS NOT JUSTIFIED IN ADDI NG THE ENTIRE RECEIPTS SHOWN IN THE CREDIT SIDE OF THE SEIZED CAS H SHEET AS THE INCOME OF THE APPELLANT AS RIGHTLY BEEN OBSERVED BY THE LD. CIT(A) WHILE DELETING THE ADDITION MADE BY THE LD. AO; THE SAME ACCORDING TO US IS JUST AND PROPER AND WITHOUT ANY AMBIGUITY SO AS TO WARRANT INTERFERENCE. HENCE, THE GROUND OF APPEAL PREFERRE D BY THE REVENUE IS FOUND TO BE DEVOID OF ANY MERIT AND, THUS, DISMI SSED. 17. GROUND NO. 2:- SINCE THIS GROUND HAS ALSO DECIDED RESTRICTING THE ADDITION TO .75% OF THE BROKERAGE AS AGAINST TH E ORDER PASSED BY THE LD. CIT(A) IN THE APPEAL PREFERRED BY THE AS SESSEE IN IT(SS)A NO. 228/IND/2016 FOR A.Y. 2011-12 IN THE ABSENCE OF ANY CHANGED CIRCUMSTANCES THE SAME SHALL APPLY MUTATIS MUTANDIS . THIS GROUND OF APPEAL IS, THEREFORE, DISMISSED. IT(SS)A NOS.211&212/IND/2016 A.Y.2011-12 & 201213 IT(SS)A NOS.228&229/IND/2016 A.Y. 2011-12 & 2012-13 11 18. GROUND NO. 3:- THIS GROUND RELATES TO THE CHARGEABILITY OF INTEREST UNDER SECTION 234B(3) AS DIRECTED BY THE L D. CIT(A) WHILE DECIDING THE CHALLENGE OF CHARGEABILITY OF INTEREST UNDER SECTION 234B(3) OF THE ACT BY THE ASSESSEE. 19. WE HAVE HEARD THE RIVAL SUBMISSIONS MADE BY THE RESPECTIVE PARTIES, AND WE HAVE ALSO PERUSED THE RELEVANT MATE RIALS AVAILABLE ON RECORD. WHILE DEALING WITH THE LD. CIT(A) OBSER VED AS FOLLOWS:- 5.6.1 THAT HONBLE KERALA HIGH COURT IN THE CASE O F CIT VS. B. LAKSHMI KANTHAN AS REPORTED IN 198 TAXMANN 485 HAS HELD THAT [REFER PARA 6]:- 6. AFTER HEARING BOTH SIDES, WE FEEL THERE IS NO S UBSTANCE IN THE CONTENTION RAISED BY THE REVENUE THAT IN A REASSESSMENT COMPLE TED UNDER S. 153A INTEREST FOR NON-PAYMENT OR SHORT PAYMENT OF ADVANCE TAX IS PAYABLE UNDER S. 234B(3) MERELY BECAUSE THE SAID REASSESSMENT UNDER S. 153A IS COMPLETED BY ACCEPTING THE RETURN FILED UNDER S. 143(1) OF THE ACT. INTERE ST FOR NON-PAYMENT OR SHORT PAYMENT OF ADVANCE TAX IS PAYABLE UNDER S. 234B FOR DIFFERENT PERIODS UNDER SUB- SS. (1) AND (3) OF THE SAID SECTION. IN ALL CASES O F REGULAR ASSESSMENTS COMPLETED UNDER S. 143(1) INTEREST IS TO BE CHARGED FOR THE P ERIODS PROVIDED UNDER S. 234B(1) OF THE ACT. FURTHER, IF THE FIRST ASSESSMENT ITSELF IS INCOME ESCAPING ASSESSMENT MADE UNDER S. 147 OR UNDER S. 153A, THEN SUCH ASSES SMENT WILL BE TREATED AS REGULAR ASSESSMENT AND INTEREST FOR NON-PAYMENT OR SHORT PAYMENT OF ADVANCE TAX IN SUCH CASES WILL BE PAYABLE UNDER S. 234B(1) OF THE ACT. HOWEVER WHEN AN ORIGINAL ASSESSMENT COMPLETED UNDER S. 143 IS REVIS ED EITHER UNDER S. 147 OR UNDER S. 153A, THEN INTEREST FOR NON-PAYMENT OR SHO RT PAYMENT OF ADVANCE TAX IS PAYABLE ONLY FOR THE PERIOD MENTIONED IN S. 234B(3) OF THE ACT, WHICH PROVIDES FOR INTEREST FROM THE DATE OF COMPLETION OF REGULAR ASS ESSMENT UNDER S. 143(1) TILL THE DATE OF COMPLETION OF REASSESSMENT OR RE-COMPUTATIO N UNDER S. 147 OR S. 153A OF THE ACT. IN OUR VIEW, FOR THE PURPOSE OF LEVY OF IN TEREST UNDER S. 234B(3), IT IS IMMATERIAL WHETHER RE-COMPUTATION OR REASSESSMENT U NDER S. 147 OR UNDER S. 153A IS MADE BY ACCEPTING THE REVISED RETURN FILED AND BY PROCESSING THE SAME UNDER S. 143(1) OR WHETHER REASSESSMENT IS MADE BY REJECTING SUCH RETURNS AND BY DETERMINING THE INCOME. THE FACT THAT THE PROCED URE FOR CALLING FOR RETURN AND ASSESSMENT AFTER SEARCH OR REQUISITION UNDER S. 153 A IS THE SAME AS PROVIDED UNDER S. 139 DOES NOT MEAN THAT A REASSESSMENT COMP LETED UNDER THE SAID PROVISION IS A REGULAR ASSESSMENT OR ORIGINAL ASSES SMENT. ON THE OTHER HAND, WHATEVER BE THE PROCEDURE ADOPTED FOR ASSESSING ESC APED INCOME OR UNDISCLOSED INCOME PURSUANT TO SEARCH OR REQUISITION, SUCH ASSE SSMENT WILL ALWAYS BE A RE- ASSESSMENT OR RE-COMPUTATION UNDER S. 153A, AND UNL ESS IT IS A FIRST ASSESSMENT, THAT COULD BE TREATED AS THE REGULAR ASSESSMENT IN TERMS OF EXPLN. (2) TO S. IT(SS)A NOS.211&212/IND/2016 A.Y.2011-12 & 201213 IT(SS)A NOS.228&229/IND/2016 A.Y. 2011-12 & 2012-13 12 234B(1), THEN INTEREST CAN BE CHARGED ONLY UNDER S. 234B(3) OF THE ACT. IN THIS CASE, THE ORIGINAL RETURNS WERE PROCESSED UNDER S. 143(1) OF THE ACT AND THE PROCEEDINGS SO COMPLETED WERE ISSUED TO THE ASSESSE E. IT IS ONLY THEREAFTER THE DEPARTMENT CONDUCTED SEARCH AND MADE REVISED ASSESS MENTS UNDER S. 153A OF THE ACT THOUGH BY ACCEPTING RETURNS OF UNDISCLOSED INCOME FILED AND BY ISSUING PROCEEDINGS UNDER S. 143(1) R/W S. 153A OF THE ACT. WE, THEREFORE, HOLD THAT THE ASSESSMENTS UNDER S. 153A ARE REVISED ASSESSMENTS A ND SO MUCH SO, INTEREST COULD BE DEMANDED FOR THE PERIOD MENTIONED IN S. 23 4(B)(3) OF THE ACT AS HELD BY THE TRIBUNAL. IN THIS VIEW OF THE MATTER, WE UPHOLD THE ORDER OF THE TRIBUNAL AND DISMISS THE DEPARTMENT APPEALS FOR BOTH THE YEARS. AS APPEARING FROM THE JUDGMENT PASSED BY THE HONB LE KERALA HIGH COURT AND HONBLE JURISDICTIONAL HIGH COURT AS RELIED UPON BY THE LD. CIT(A), ACCORDING TO US THE DIRECTION UPON THE LD. AO TO CHARGE THE INTEREST AS PER SUB-SECTION (3) OF SECTI ON 234B OF THE ACT AS MADE BY THE LD. CIT(A) IS JUST AND PROPER AND TH EREFORE, THE SAME IS HEREBY CONFIRMED. THUS, THIS GROUND OF APP EAL PREFERRED BY THE REVENUE IS FOUND TO BE DEVOID OF ANY MERIT AND HENCE, DISMISSED. IT(SS)A NO. 229/IND/2016(A.Y.2012-13):- 20. THESE GROUNDS OF APPEALS ARE IDENTICAL TO THAT OF THE ISSUES ALREADY BEEN DEALT WITH BY US IN ITA NO.228/IND/201 6 FOR A.Y. 2011-12 AND IN THE ABSENCE OF ANY CHANGED CIRCUMSTA NCES THE SAME SHALL APPLY MUTATIS MUTANDIS. HENCE, THE APPEA L PREFERRED BY THE REVENUE IS DISMISSED. 21. IN THE COMBINED RESULT, (I) IT(SS)A NO. 211/IND/2016 IS FILED BY THE ASSESS EE IS PARTLY ALLOWED. (II) IT(SS)A NO. 212/IND/2016 IS FILED BY THE ASSES SEE IS PARTLY IT(SS)A NOS.211&212/IND/2016 A.Y.2011-12 & 201213 IT(SS)A NOS.228&229/IND/2016 A.Y. 2011-12 & 2012-13 13 ALLOWED. (III) IT(SS)A NO. 228/IND/2016 IS FILED BY THE REVE NUE IS DISMISSED. (IV) IT(SS)A NO. 229/IND/2016 IS FILED BY THE REVEN UE IS DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 27.07.20 21 SD/- SD/- (MANISH BORAD) (MADHUMITA ROY) ACCOUNTANT MEMBER JUDICIAL MEMBER / DATED : 27 TH JULY, 2021 TANMAY COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE