THE DCIT, 3(1), Indore V. SHRI CHIRAG SHAH, Indore

ITSSA 244/IND/2013

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 2004 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 8 month(s) 20 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 18-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 07-09-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 29-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRIARPIT GAUR CAS
• Assessee Lawyers: RAJEEV VARSHNEY; R A VERMA DRS
• Keywords: Unexplained cash credit; Unexplained investment; Value adopted by valuation officer; Unexplained expenditure; Business income; Salary income; Loose papers; Opportunity of being heard; Source of fund; Additional evidence; Valuation report
• Section: 153A; 68

Judgement Text

CHIRAG SHAH (SS)193 AND OTHERS 1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER IT(SS)A NOS. 193& 194/IND/2013 AND ITA NO.536/IND/2 013 A.YS. 2008-09 TO 2010-11 CHIRAG SHAH, INDORE PAN AGOPS 5413 P :: APPELLANT VS DCIT-3(1), INDORE :: RESPONDENT IT(SS)A NOS. 244TO 246/IND/2013 A.YS. 2007-08TO 2009-10 DCIT-3(1), INDORE :: APPELLANT VS CHIRAG SHAH, INDORE PAN AGOPS 5413 P :: RESPONDENT ASSESSEE BY SHRI ANIL KAMAL GARG AND SHRIARPIT GAUR, CAS RESPONDENT BY SHRI RAJEEV VARSHNEY AND SHRI R.A. VERMA, DRS DATE OF HEARING 05.04.2016 DATE OF PRONOUNCEMENT 18.05.2016 O R D E R PER SHRI D.T.GARASIA, JM CHIRAG SHAH (SS)193 AND OTHERS 2 THE ABOVE APPEALS ARE FILED BY THE ASSESSEE AND REV ENUE CHALLENGING THE DIFFERENT ORDERS OF LD. CIT(A)-I, I NDORE FOR THE ASSESSMENT YEARS 2007-08 TO 2010-11. DEPARTMENTAL APPEAL NO.: 244/IND/2013 A.Y. 2007-08 GROUNDS OF APPEAL READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.1,50,000/- MADE BY THE AO ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN BANK ON THE POINT THAT THE ASSESSEE IS INCOME TAX PAYEE WHEREAS THE ASSESSEE HAD FAILED TO SUBSTANTIA TE THE CREDITS WITH DOCUMENTARY EVIDENCES OF HAVING SURPLUS FUND FOR DE POSIT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.37,34,000/- MADE BY THE AO ON ACCOUNT OF UNEXPLAINED INCOME FROM SALE OF LAND OBSERVING THAT THE ASSESSEE WAS THE ACTUAL OWNER OF THE LAND WHEREAS EVIDENCES BROUGHT ON RECO RD SHOW THAT THE ASSESSEE HAD BOUGHT THE LAND WHICH WAS LATER SOLD THROUGH PO WER OF ATTORNEY OF ONE OF HIS EMPLOYEES. 2.1. WHILE HOLDING SO THE LD. CIT(A) ERRED IN ACCEP TING THE CLAIM OF THE APPELLANT AS A BROKER WHEN THE SAID CLAIM WAS NOT S UBSTANTIATED BY THE ASSESSEE BEFORE THE AO ALONGWITH THE AMOUNT OF BROKERAGE CHA RGED BY HIM FROM THE SELLERS OR PURCHASERS AND THE RATE OF BROKERAGE AND THE SERVICES RENDERED BY HIM WHEN THE SELLERS OF THE LAND CONFIRMED THE FACT THA T HE WAS THE PURCHASER. 3. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE C IT(A) MAY BE SET ASIDE AND THE ORDER OF THE AO MAY PLEASE BE RESTORED. DEPARTMENTAL APPEAL NO.: 245/IND/2013 A.Y. 2008-09 GROUNDS OF APPEAL READ AS UNDER: 1. IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE T HE LD. CIT(A) ERRED IN DECIDING THE APPEAL AGAINST THE PRINCIPLES OF NATUR AL JUSTICE, WITHOUT AFFORDING ANY OPPORTUNITY TO THE AO OR REMANDING IT BACK IN V IOLATION OF THE DEPARTMENTAL INSTRUCTION THAT IN SEARCH ASSESSMENTS APPEAL ORDER BE PASSED EITHER BASED ON REMAND REPORT OR AFTER HEARING THE AO. CHIRAG SHAH (SS)193 AND OTHERS 3 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.1,50,00,000/- MADE BY T HE AO ON ACCOUNT OF UNEXPLAINED INVESTMENTS IN PHOENIX DEVCONS P. LTD. WHEN CREDITWORTHINESS OF THE LENDERS AND GENUINENESS OF THE TRANSACTIONS WAS NOT EXPLAINED AT ALL, EITHER BEFORE AO OR BEFORE THE CIT(A). 2.1 WHILE HOLDING SO THE LD. CIT(A) GROSSLY ERRED I N PASSING THE ORDER IN VIOLATION OF RULE 46A OF THE I.T. RULES AS THE MATE RIAL PRODUCED BEFORE THE CIT(A) BY THE APPELLANT WAS NEVER PRODUCED BEFORE T HE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE L D. CIT(A) ERRED IN DIRECTING TO ASSESS THE BROKERAGE INCOME OF RS.11,4 7,340/- IN A.Y. 2009-10 AND RS.22,29,200/- IN A.Y. 2008-09 AGGREGATING TO RS.33 ,76,540/- IN TWO DIFFERENT ASSESSMENT YEARS APPLYING RATE OF BROKERAGE ON VARI OUS INSTALLMENTS OF BHAURASLA LAND DEAL AMOUNTING TO RS.2,26,83,500/- A ND RS.60,00,000/- IN A.Y. 2009-10 AND OF RS.5,57,30,000/- IN A.Y. 2008-09 INS TEAD OF NOT ASSESSING TOTAL BROKERAGE INCOME AMOUNTING TO RS.1,64,40,000/- IN A .Y. 2008-09 ONLY CONSIDERING ENTIRE AMOUNT OF BHAURASLA LAND DEAL AT RS.41.10 CRORE AS HE SHOULD HAVE CONSIDERED ENTIRE AMOUNT OF RS.41.10 CRORE TO ASSESS THE BROKERAGE INCOME ON SUBSTANTIVE BASIS IN THE HANDS OF THE ASSESSEE A ND SHOULD HAVE DETERMINED BROKERAGE INCOME @ 4% I.E. RS.1,64,40,000/- IN A.Y. 2008-09 ONLY AS THE ENTIRE AMOUNT OF STATED CONSIDERATION OF RS.41.10 C RORE OF BHAURASLA LAND DEAL AND BROKERAGE THEREON WAS PAID IN A.Y. 2008-09 ONLY . 3.1. WHILE HOLDING SO THE LD. CIT(A) GROSSLY ERRED IN ACCEPTING THE ADDITIONAL ARGUMENTS OF THE APPELLANT OF BEING A BROKER WHICH WAS NOT AT ALL RAISED BEFORE THE AO AND IT WAS NEVER CONFRONTED BACK TO THE AO F OR HIS COMMENTS OR REMAND REPORT. THE ORDER OF THE LD. CIT(A) ON THIS ISSUE S UFFERS FROM VIOLATION OF RULE 46A OF THE I.T. RULES. 3.2 WITHOUT PREJUDICE TO THE ADJUDICATION OF THE LD . CIT(A) ON THE ISSUE OF TREATING THE APPELLANT AS A BROKER, THE LD. CIT(A) AFTER HAVING TREATED THE APPELLANT AS A BROKER SHOULD HAVE WORKED OUT THE BR OKERAGE INCOME ON THE TOTAL CONSIDERATION INVOLVED IN THE BHAURASLA LAND WHICH WAS WORKED OUT BY THE AO AT A SUM OF RS.41.10 CRORE BASED ON THE TRANSACTION NOTED IN THE VARIOUS LOOSE PAPERS. HAVING FAILED TO ENHANCE THE INCOME THE ORD ER OF THE LD. CIT(A) SUFFERS FROM THIS INFIRMITY. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) ERRED IN ASSESSING THE BROKERAGE INCOME @ 4% AT RS.11,81,200 /- INSTEAD OF RS.13,05,320/- IN A.Y. 2008-09 BY WRONGLY CONSIDERI NG TOTAL AMOUNT OF SAHARA CHIRAG SHAH (SS)193 AND OTHERS 4 LAND DEAL AT DEVGURADIA AT RS.2,95,30,000/- INSTEAD OF RS.3,26,33,000/- IN A.Y. 2008-09. 4.1 WHILE HOLDING SO THE LD. CIT(A) GROSSLY ERRED I N ACCEPTING THE ADDITIONAL ARGUMENTS OF THE APPELLANT OF BEING A BROKER WHICH WAS NOT AT ALL RAISED BEFORE THE AO AND IT WAS NEVER CONFRONTED BACK TO THE AO F OR HIS COMMENTS OR REMAND REPORT. THE ORDER OF THE LD. CIT(A) ON THIS ISSUE S UFFERS FROM VIOLATION OF RULE 46A OF THE I.T. RULES. 4.2 WITHOUT PREJUDICE TO THE ADJUDICATION OF THE LD . CIT(A) ON THE ISSUE OF TREATING THE APPELLANT AS A BROKER, THE LD. CIT(A) AFTER HAVING TREATED THE APPELLANT AS A BROKER SHOULD HAVE WORKED OUT THE BR OKERAGE INCOME ON THE TOTAL CONSIDERATION INVOLVED IN THE SAHARA LAND WHICH WAS WORKED OUT BY THE AO AT A SUM OF RS.6.,68 CRORE BASED ON THE TRANSACTIONS N OTED IN THE VARIOUS LOOSE PAPERS AND FALLING IN THE A.Y.2008-09 AND 2009-10. HAVING FAILED TO ENHANCE THE INCOME THE ORDER OF THE LD. CIT(A) SUFFERS FROM THIS INFIRMITY. 5. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE C IT(A) MAY BE SET ASIDE AND ORDER OF THE AO MAY PLEASE BE RESTORED. 6. THE APPELLANT CRAVES TO ADD, ALTER OR AMEND ANY OF THE GROUNDS OF APPEAL. DEPARTMENTAL APPEAL NO.: 246/IND/2013 A.Y. 2009-10 GROUNDS OF APPEAL READ AS UNDER: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN DECIDING THE APPEAL AGAINST THE PRINCIPLES OF NATUR AL JUSTICE, WITHOUT AFFORDING ANY OPPORTUNITY TO THE AO OR REMANDING IT BACK IN V IOLATION OF THE DEPARTMENTAL INSTRUCTION THAT IN SEARCH ASSESSMENTS APPEAL ORDER BE PASSED EITHER BASED ON REMAND REPORT OR AFTER HEARING THE AO. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.35,76,949/- OUT OF TOTA L ADDITION OF RS.44,54,768/- BEING DIFFERENCE IN THE COST OF CONSTRUCTION SHOWN BY THE ASSESSEE AND DETERMINED BY THE AO AND TREATED AS UNEXPLAINED INV ESTMENT WITHOUT CONSIDERING THE FACT THAT THE DVO DETERMINED THE CO ST OF CONSTRUCTION ONLY AND HAS NOT CONSIDERED INVESTMENT IN ADDITIONAL ITEMS F OR RS.35,76,949/- WHILE DETERMINING THE COST OF CONSTRUCTION OF THE HOUSE. CHIRAG SHAH (SS)193 AND OTHERS 5 2.1 WHILE HOLDING SO THE LD. CIT(A) GROSSLY ERRED I N NOT CONSIDERING THAT THE VALUATION REPORT OF THE DVO WAS OF THE HOUSE THAN O F THE FURNISHING IN THE HOUSE AND THE DIFFERENCE WAS RS.44,54,768/- ON ACCO UNT OF VALUATION OF CONSTRUCTION OF HOUSE WHICH WAS RIGHTLY ADDED BY TH E AO. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 1.50 CRORE MADE BY THE AO ON ACCOUNT OF UNACCOUNTED RECEIPTS TO PHOENIX DEVCONSPVT. LTD. MA DE BY THE ASSESSEE FOUND NOTED ON PAGE NO. 54 OF LPS-A/17 SEIZED FROM THE PR EMISE OF PHOENIX DEVCONSPVT. LTD. AND ADDING RS. 27,00,000/- ON ACCO UNT OF UNEXPLAINED INTEREST INCOME IN THE HANDS OF THE ASSESSEE DESPITE FINDING THAT THE PAGE NO. 54 OF LPS- A/17 CONTAINED THE DIFFERENT DETAILS OF INDIRECT EX PENSES WHICH APPEARS TO BE OF BUSINESS NATURE AND CLEARLY SUGGESTS AND SIGNIFY TH AT THE TRANSACTION NOTED THEEIN OR INCURRED BY PHOENIX DEVCONSPVT. LTD FURTHER, THE DESCRIPTION OF THE NOTING TO CLEARLY SUGGEST THAT INTEREST OF RS. 27,00,000/- PA ID AGAINST HAWALA OF RS. 1.50 CRORE OF CHIRAGSHAH. 3.1 WHILE HOLDING SO THE LD. CIT(A) GROSSLY ERRED I N NOT CONSIDERING THAT THE UNACCOUNTED INTEREST OF RS. 27,00,000/- EMANATED OU T OF THE UNACCOUNTED INVESTMENT OF RS. 1.50 CRORE AND THE SAME SHOULD HA VE BEEN SUSTAINED AS THE PAYMENT OF INTEREST WAS FOUND GENUINE BY THE LD. CI T(A) AND BOTH THE TRANSACTIONS OF UNACCOUNTED INVESTMENT AND INTEREST WERE PART OF THE SEIZED MATERIAL, BEING RECORDED ON THE LOOSE PAPER. 3.2 WHILE HOLDING SO THE LD. CIT(A) FURTHER ERRED I N NOT APPRECIATING THAT IT WAS A CASE OF ENHANCEMENT OF INCOME TO THE EXTENT O F RS. 27,00,000/- AS AO ADDED THE PRINCIPAL AMOUNT OF RS. 1.50 CRORE WITHOU T ADDING THE INTEREST COMPONENT OF RS. 27,00,000/- WHICH WAS FOUND GENUIN E BY THE LD. CIT(A). 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) ERRED IN ASSESSING THE BROKERAGE INCOME AT RS. 11,47,340/- I N A A.Y. 2009-10 AND RS. 22,29,200/- IN A.Y. 2008-09 AGGREGATING TO RS. 33,7 6,540/- IN TWO DIFFERENT A.Y. AFTER APPLYING RATE OF BROKERAGE ON VARIOUS IN STALLMENTS OF BHAURASLA LAND DEAL AMOUNTING TO RS. 2,26,83,500/- AND RS. 60,00,0 00/- IN A.Y. 2009-10 AND RS. 5,57,30,000/- IN A.Y. 2008-09 INSTEAD OF NOT AS SESSING TOTAL BROKERAGE INCOME AMOUNTING TO RS. 1,64,40,000/- IN A.Y. 2008- 09 ONLY CONSIDERING ENTIRE AMOUNT OF BHAURASLA LAND DEAL AT RS. 41.10 CRORE AS HE SHOULD HAVE CONSIDERED ENTIRE AMOUNT OF RS. 41.10 CRORE TO ASSESS THE BROK ERAGE INCOME ON SUBSTANTIVE BASIS IN THE HANDS OF THE ASSESSEE AND SHOULD HAVE DETERMINED BROKERAGE INCOME CHIRAG SHAH (SS)193 AND OTHERS 6 @4% I.E. RS. 1,64,40,000/- IN A.Y. 2008-09 ONLY AS THE ENTIRE AMOUNT OF STATED CONSIDERATION OF RS. 41.10 CRORE OF BHAURASLA LAND DEAL AND BROKERAGE THEREON WAS PAID IN A.Y. 2008-09 ONLY. 4.1 WHILE HOLDING SO THE LD. CIT(A) GROSSLY ERRED I N ACCEPTING THE ADDITIONAL ARGUMENTS OF THE APPELLANT OF BEING A BROKER WHICH WAS NOT AT ALL RAISED BEFORE THE AO AND IT WAS NEVER CONFRONTED BACK TO THE AO F OR HIS COMMENTS OR REMAND REPORT. THE ORDER OF THE LD. CIT(A) ON THIS ISSUE S UFFERS FROM VIOLATION OF RULE 46A OF THE I.T. RULES. 4.2 WITHOUT PREJUDICE TO THE ADJUDICATION OF THE LD . CIT(A) ON THE ISSUE OF TREATING THE APPELLANT AS A BROKER, LD. CIT(A) AFTE R HAVING TREATED THE APPELLANT AS A BROKER SHOULD HAVE WORKED OUT THE BROKERAGE IN COME ON THE TOTAL CONSIDERATION INVOLVED IN THE BHAURASLA LAND WHICH WAS WORKED OUT BY THE AO AT A SUM OF RS. 41.10 CRORE BASED ON THE TRANSACTIO NS NOTED IN THE VARIOUS LOOSE PAPERS AND FALLING IN THE A.Y. 2008-09. HAVING FAIL ED TO ENHANCE THE INCOME THE ORDER OF THE LD. CIT(A) SUFFERS FROM THIS INFIRMITY . 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) ERRED IN ASSESSING THE BROKERAGE INCOME @4% AT RS. 1,32,000/ - INSTEAD OF AT RS. 14,48,680/- IN A.Y. 2009-10 BY WRONGLY CONSIDERING TOTAL AMOUNT OF SAHARA LAND DEAL AT DEVGURADIA AT RS. 2,95,30,000/- INSTEA D OF RS. 3,62,17,000/- IN A.Y. 2009-10. 5.1 WHILE HOLDING SO THE LD. CIT(A) GROSSLY ERRED I N ACCEPTING THE ADDITIONAL ARGUMENTS OF THE APPELLANT OF BEING A BROKER WHICH WAS NOT AT ALL RAISED BEFORE THE AO AND IT WAS NEVER CONFRONTED BACK TO THE AO F OR HIS COMMENTS OR REMAND REPORT. THE ORDER OF THE LD. CIT(A) ON THIS ISSUE S UFFERS FROM VIOLATION OF RULE 46A OF THE I.T. RULES. 5.2 WITHOUT PREJUDICE TO THE ADJUDICATION OF THE LD . CIT(A) ON THE ISSUE OF TREATING THE APPELLANT AS A BROKER, LD. CIT(A) AFTE R HAVING TREATED THE APPELLANT AS A BROKER SHOULD HAVE WORKED OUT THE BROKERAGE IN COME ON THE TOTAL CONSIDERATION INVOLVED IN THE SAHARA LAND WHICH WAS WORKED OUT BY THE AO AT A SUM OF RS. 6.88 CRORE BASED ON THE TRANSACTIONS NOT ED IN THE VARIOUS LOOSE PAPERS AND FALLING IN THE A.Y. 2008-09. HAVING FAILED TO E NHANCE THE INCOME THE ORDER OF THE LD. CIT(A) SUFFERS FROM THIS INFIRMITY. 6. IT IS THEREFORE, PRAYED THAT THE ORDER OF THE CI T(A) MAY BE SET ASIDE AND THE ORDER OF THE AO MAY PLEASE BE RESTORED. CHIRAG SHAH (SS)193 AND OTHERS 7 7. THE APPELLANT CRAVES TO ADD, ALTER OR AMEND ANY OF THE GROUNDS OF APPEAL. ASSESSEES APPEAL NO. : 193/IND/2013 A.Y. 2008-09 GROUNDS OF APPEAL READ AS UNDER: 1. THAT, THE LEARNED CIT(A) GROSSLY ERRED, BOTH ON FACTS AND IN LAW, IN CONFIRMING ADDITION OF RS.65,00,000/- IN THE APPELLANTS INCOM E, ON ACCOUNT OF ALLEGED UNEXPLAINED CASH CREDIT IN THE NAME OF 'M/S. IVORY CONSULTANTS PVT. LTD.' MADE BY THE LEARNED AO, BY INVOKING PROVISIONS OF SECTIO N 68 OF THE INCOME-TAX ACT, 1961, WITHOUT CONSIDERING THE MATERIAL FACT THAT TH E APPELLANT HAD ESTABLISHED THE IDENTITY OF THE CREDITOR, THE GENUINENESS OF TH E TRANSACTION AND AS ALSO CREDITWORTHINESS OF THE CREDITOR BEYOND ALL DOUBTS. 2(A) THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) GROSSLY ERRED IN MAKING ADDITION ON ACCOUNT OF ESTI MATION OF BROKERAGE @ 4% AT RS.22,29,200/- ON THE SUM OF RS.5,57,30,000/- IN RESPECT OF LAND DEAL AT VILLAGE BHAURSALA, INDORE, MERELY ON GUESS WORK, SU RMISES AND CONJECTURES. (B) THAT, WITHOUT PREJUDICE TO THE ABOVE, THE LEARN ED CIT(A) GROSSLY ERRED IN NOT CONSIDERING THE MATERIAL FACT THAT THE APPELLANT HI MSELF HAD SHOWN BROKERAGE INCOME AMOUNTING TO RS.66,67,500/- IN HIS RETURN OF INCOME, FURNISHED UNDER S. 153A OF THE INCOME-TAX ACT, 1961, FOR THE ASSES SMENT YEAR UNDER CONSIDERATION AND THEREFORE, NO SEPARATE ADDITION W AS WARRANTED ON THIS COUNT. 3(A) THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) GROSSLY ERRED IN MAKING ADDITION ON ACCOUNT OF ESTI MATION OF BROKERAGE @ 4% AT RS.11,81,200/- ON THE SUM OF RS.2,95,30,000/- IN RESPECT OF LAND DEAL AT VILLAGE DEVDGURADIA, INDORE, MERELY ON GUESS WORK, SURMISES AND CONJECTURES. (B) THAT, WITHOUT PREJUDICE TO THE ABOVE, THE LEAR NED CIT(A) GROSSLY ERRED IN NOT CONSIDERING THE MATERIAL FACT THAT THE APPELLANT HI MSELF HAD SHOWN BROKERAGE INCOME AMOUNTING TO RS.66,67,500/- IN HIS RETURN OF INCOME, FURNISHED UNDER S. 153A OF THE INCOME-TAX ACT, 1961, FOR THE ASSES SMENT YEAR UNDER CHIRAG SHAH (SS)193 AND OTHERS 8 CONSIDERATION AND THEREFORE, NO SEPARATE ADDITION W AS WARRANTED ON THIS COUNT. ASSESSEES APPEAL NO. : 194/IND/2013 A.Y. 2009-10 GROUNDS OF APPEAL READ AS UNDER: 1(A). THAT, THE LEARNED CIT(A) GROSSLY ERRED, BOTH ON FACTS AND IN LAW, IN CONFIRMING ADDITION TO THE EXTENT OF RS.8,77,819/- IN THE APPE LLANTS INCOME, ON ACCOUNT OF ALLEGED UNDISCLOSED INVESTMENT IN CONSTRUCTION O F HOUSE AT 77, PATRAKAR COLONY, INDORE. (B) THAT, WITHOUT PREJUDICE TO THE ABOVE, THE LEA RNED CIT(A) GROSSLY ERRED IN MISCONSTRUING THE FACT OF THE CASE AND NOT CONSIDER ING THE MATERIAL FACT THAT THE APPELLANT HAD SHOWN AN ADDITIONAL INCOME OF RS. 2,42,14,600/- IN HIS RETURN OF INCOME FOR A.Y. 2010-11 AND OUT OF SUCH A DDITIONAL INCOME, THE APPELLANT HAD MADE UNDISCLOSED INVESTMENT IN CONSTR UCTION OF HOUSE AMOUNTING TO RS.75,00,000/-. 2. THAT, THE LEARNED CIT(A) GROSSLY ERRED, BOTH ON FACTS AND IN LAW, IN MAKING AN ADDITION OF RS.27,00,000/- IN THE APPELLANTS INCOM E, ON ACCOUNT OF ALLEGED RECEIPT OF INTEREST ON ALLEGED TRANSACTION OF RS.1. 50 CRORES FOUND NOTED ON SOME LOOSE PAPER SEIZED FROM THE PREMISES OF ONE M/ S. PHOENIX DEVCONSPVT. LTD. IN WHICH APPELLANT WAS MERELY ONE OF THE DIREC TORS. 3(A) THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) GROSSLY ERRED IN MAKING ADDITION ON ACCOUNT OF ESTI MATION OF BROKERAGE @ 4% AT RS.9,07,340/- ON THE SUM OF RS.2,26,83,500/- IN RESPECT OF LAND DEAL AT VILLAGE BHAURSALA, INDORE, MERELY ON GUESS WORK, SU RMISES AND CONJECTURES. (B) THAT, WITHOUT PREJUDICE TO THE ABOVE, THE LEARN ED CIT(A) GROSSLY ERRED IN NOT CONSIDERING THE MATERIAL FACT THAT THE APPELLANT HI MSELF HAD SHOWN BROKERAGE INCOME AMOUNTING TO RS.35,00,000/- IN HIS RETURN OF INCOME, FURNISHED UNDER S. 153A OF THE INCOME-TAX ACT, 1961, FOR THE ASSES SMENT YEAR UNDER CHIRAG SHAH (SS)193 AND OTHERS 9 CONSIDERATION AND THEREFORE, NO SEPARATE ADDITION W AS WARRANTED ON THIS COUNT. 4(A) THAT, THE LEARNED CIT(A) GROSSLY ERRED IN MAKI NG AN ADDITION ON ACCOUNT OF ESTIMATION OF BROKERAGE @ 4% AT RS.1,32,000/- ON TH E SUM OF RS.33,00,000/- ON CASH RECEIPTS FROM M/S. PHOENIX LEISURE & LIFEST YLE PVT. LTD., MERELY ON GUESS WORK, SURMISES AND CONJECTURES. (B) THAT, WITHOUT PREJUDICE TO THE ABOVE, THE LEARN ED CIT(A) GROSSLY ERRED IN NOT CONSIDERING THE MATERIAL FACT THAT THE APPELLANT HI MSELF HAD SHOWN BROKERAGE INCOME AMOUNTING TO RS.35,00,000/- IN HIS RETURN OF INCOME, FURNISHED UNDER S. 153A OF THE INCOME-TAX ACT, 1961, FOR THE ASSES SMENT YEAR UNDER CONSIDERATION AND THEREFORE, NO SEPARATE ADDITION W AS WARRANTED ON THIS COUNT. 5(A) THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) GROSSLY ERRED IN MAKING ADDITION ON ACCOUNT OF ESTI MATION OF BROKERAGE @ 4% AT RS.2,40,000/- ON THE SUM OF RS.60,00,000/- IN RE SPECT OF LAND DEAL AT VILLAGE BHAURSALA, INDORE, MERELY ON GUESS WORK, SURMISES A ND CONJECTURES. (B) THAT, WITHOUT PREJUDICE TO THE ABOVE, THE LEARN ED CIT(A) GROSSLY ERRED IN NOT CONSIDERING THE MATERIAL FACT THAT THE APPELLANT HI MSELF HAD SHOWN BROKERAGE INCOME AMOUNTING TO RS.35,00,000/- IN HIS RETURN OF INCOME, FURNISHED UNDER S. 153A OF THE INCOME-TAX ACT, 1961, FOR THE ASSES SMENT YEAR UNDER CONSIDERATION AND THEREFORE, NO SEPARATE ADDITION W AS WARRANTED ON THIS COUNT. ASSESSEES APPEAL NO. : 195/IND/2013 A.Y. 2010-11 GROUNDS OF APPEAL READ AS UNDER: 1. THAT, THE LEARNED CIT(A) GROSSLY ERRED, BOTH ON FAC TS AND IN LAW, IN NOT CONSIDERING THE PURCHASES OF JEWELLERIES AND BULLIO N MADE BY THE APPELLANT DURING THE FINANCIAL YEAR RELEVANT TO A.Y. 2000-01 WHILE ADJUDICATING THE GROUND RELATING TO UNDISCLOSED INVESTMENT IN JEWELL ERIES. CHIRAG SHAH (SS)193 AND OTHERS 10 2. THAT, THE LEARNED CIT(A) GROSSLY ERRED, BOTH ON FAC TS AND IN LAW, IN CONFIRMING ADDITION TO THE EXTENT OF RS.48,78,648/- IN THE APP ELLANTS INCOME MADE BY THE LEARNED AO ON ACCOUNT OF ALLEGED UNEXPLAINED CASH R ECEIPT AGAINST PARTNERSHIP IN SATELLITE CITY PROJECT WITHOUT CONSI DERING THE APPELLANT'S EXPLANATION THAT THE IMPUGNED SUM WAS ALREADY CONSI DERED AND INCLUDED BY HIM IN THE BUSINESS INCOME OF RS.2,42,14,600/- SHOW N IN HIS RETURN OF INCOME, FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. A.Y. 2007-08 DEPARTMENTAL APPEAL NO. : 244/IND/2013 DEPARTMENTAL GROUND NO. 1 THIS GROUND OF APPEAL RELATES TO THE ACTION OF THE LD. CIT(A) IN DELETING THE ADDITION MADE U/S. 68BY HOLDING CASH DEPOSITS AMOUN TING TO RS.1,50,000/- IN CENTURION BANK BY THE ASSESSEE AS UNEXPLAINED CASH CREDITS. THE BRIEF FACTS RELATING TO THE GROUND ARE THAT DUR ING THE COURSE OF THE ASSESSMENT PROCEEDINGS, FROM THE BANK STATEMENTS OF THE ASSESSEE, THE AO NOTED THAT DURING THE RELEVANT PREVIOUS YEAR THE ASSESSEE HAD DEPOSITED CASH AMOUNTING TO RS.1,50,000/- IN HIS SAVING BANK ACCOUNT WITH CENTU RION BANK [A/C NO.1032010000017310] ON 14.03.2007. THE AO REQUIRED THE ASSESSEE TO EXPLAIN THE SOURCES OF THE CASH DEPOSITS AND THE ASSESSEE, VIDE HIS SUBMISSION LETTER DATED 11/11/2011, EXPLAINED THE SOURCES OF THE CASH DEPOS ITS. THE AO NOTED THAT THE ASSESSEE HAD GIVEN A GENERIC REPLY WITHOUT SATISFYI NG THE EXACT SOURCE OF SUCH CASH DEPOSIT. FINALLY, THE AO MADE THE ADDITION OF RS.1, 50,000/- IN THE ASSESSEES INCOME BY HOLDING THE SAME AS HIS UNEXPLAINED CASH CREDIT FOR THE RELEVANT ASSESSMENT CHIRAG SHAH (SS)193 AND OTHERS 11 YEAR.THE RELEVANT FINDINGS OF THE ASSESSING OFFICER ARE RECORDED AT PARA 4.1 [PAGE NO. 2] OF THE ASSESSMENT ORDER. MATTER CARRIED TO LD. CIT(A) AND LD. CIT(A), AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE AND TAKING NOTE OF THE ASSESSEES R ETURNED INCOME, DELETED THE ADDITION OF RS.1,50,000/-. THE LD. AR HAS MADE ORAL AS WELL AS WRITTEN SUBMIS SION AS UNDER: I) IN THE INSTANT CASE, THE APPELLANT HAD FURNISHED HIS ORIGINAL RETURN OF INCOME UNDER S.139(4) OF THE INCOME-TAX ACT, 196 1 ON 31-07- 2007 VIDE ACKNOWLEDGMENT NO. 0003302348 BY DECLARIN G AN INCOME OF RS.8,38,770/-. IN RESPONSE TO SUCH RETURN , NO NOTICE UNDER S.143(2) WAS ISSUED AND THE TIME LIMIT FOR IS SUANCE OF THE NOTICE HAD GOT EXPIRED ON 31-07-2008 I.E. MUCH PRIO R TO THE DATE OF SEARCH ON 19-11-2009. II) IT IS SUBMITTED THAT DURING THE COURSE OF THE S EARCH, NO INCRIMINATING MATERIAL RELATING TO THE ISSUE WAS FO UND OR SEIZED AND THEREFORE, FOR THE ASSESSMENT YEAR UNDER CONSID ERATION, WHICH IS A COMPLETED ASSESSMENT YEAR, NO ADDITION COULD H AVE BEEN MADE. FOR SUCH PROPOSITION, RELIANCE IS PLACED UPON THE DECISION OF THIS HONBLE BENCH IN THE CASE OF KALANI BROTHER S AND ANANT STEELS AND AS ALSO ON THE DECISION OF THE HONBLE I TAT MUMBAI SPECIAL BENCH IN THE CASE OF AL CARGO GLOBAL LOGISTICS & OTHERS VS. DCIT (2012) 74 DTR (MUM.) (SB) (TRIB.) 89 . CHIRAG SHAH (SS)193 AND OTHERS 12 III) EVEN ON MERITS, THE ADDITION WAS NOT JUSTIFIED. FRO M THE COPIES OF THE BANK STATEMENTS, FILED AT PAGE NO. 60 TO 64 OF THE PAPER BOOK, IT SHALL BE OBSERVED THAT DURING THE YE AR UNDER CONSIDERATION, THE TOTAL CASH DEPOSITS MADE IN CENT URIAN BANK ACCOUNT WAS OF RS.79,800/- ONLY AND NOT OF RS. 1,50,000/- AS WRONGLY TAKEN BY THE AO. DURING THE RELEVANT YEA R, THE APPELLANT HAD DERIVED CONSULTANCY INCOME AMOUNTING TO RS.5,78,620/- IN CASH WHICH HAS DULY BEEN SHOWN IN THE RETURN OF INCOME FURNISHED U/S 153A OF THE ACT [PB PAGE NO .15 & 16]. FURTHER, FROM THE SAME BANK ACCOUNT, THE ASSES SEE HAD MADE CASH WITHDRAWALS WHICH WERE RE-DEPOSITED. IV) FROM THE COPY OF THE BANK STATEMENTS OF THE ASS ESSEE WITH THE CENTURION BANK, PLACED AT PAGE NO.60 TO 64, THAT DU RING THE RELEVANT YEAR, IT SHALL BE OBSERVED THAT THE ASSESS EE HAD WITHDRAWN A SUM AGGREGATING TO RS.79,800/- FROM THE SAME BANK ON EIGHT OCCASIONS I.E. RS.6,700/- ON 03-05-2006; RS.27,400/- ON 04-05-2006; RS.6,500/- ON 27-06-2006; RS.6,700/- ON 02-12- 2006; RS.5,000/- ON 05-01-2007; RS.6,000/- ON 03-02 -2007; RS.6,500/- ON 02-03-2007 AND RS.15,000/- ON 13-03-2 007. IT IS NOT THE CASE OF THE REVENUE THAT THE CASH SO WITHDR AWN WAS UTILIZED BY THE ASSESSEE FOR MAKING SOME OTHER INVE STMENTS OR WAS EXPENDED. THEREFORE, CREDIT FOR CASH WITHDRAWAL S FROM THE CHIRAG SHAH (SS)193 AND OTHERS 13 SAME BANK ACCOUNT DESERVES TO BE GIVEN TO ONE ASSES SEE FOR EXPLAINING THE SOURCES OF CASH DEPOSITS IN THE SAME BANK ACCOUNT UNLESS AND UNTIL IT IS BROUGHT ON RECORD BY THE REV ENUE THAT THE CASH WITHDRAWN WAS NOT AVAILABLE WITH THE ASSESSEE FOR MAKING RE-DEPOSITS. LD. DR HAS RELIED ON THE ORDER OF THE AO. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PA RTIES AND HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ASS ESSEE HAS EXPLAINED THAT ON THE DATE 14.3.2007, NO CASH DEPOSIT WAS MADE BY HIM IN CENTU RION BANK ACCOUNT BUT VARIOUS CASH DEPOSITS AGGREGATING TO RS.79,800/- WERE MADE BY HIM ON VARIOUS DATES IN THE SAME BANK ACCOUNT. THE ASSESSEE HAS FURTHER EXPLAIN ED THAT RS.79,800/- WERE MADE BY HIM OUT OF THE INCOME FROM SALARY AND INCOME FROM B USINESS, RESPECTIVELY SHOWN AT RS.3,60,000/- AND RS.5,78,620/- IN THE RETURN OF IN COME FILED. WE ARE, THEREFORE, OF THE VIEW THAT THE ASSESSEE HAD SUFFICIENT CASH BALANCE TO EXPLAIN THE SOURCE OF THE CASH DEPOSIT. THE ASSESSEE HAD FILED THE DETAILS OF CASH DEPOSITS DATE-WISE, THROUGH WHICH, THE ASSESSEE CLAIMED THAT CASH DEPOSIT WAS MADE TO RS.79,800 ONLY AND NOT RS.1.5 LACS AS HELD BY THE ASSESSING OFFICER. THEREFORE, THE CA SH DEPOSIT MADE BY THE ASSESSEE STANDS EXPLAINED. THUS, WE DO NOT FIND ANY REASON T O INTERFERE WITH THE ORDER OF THE LD. CIT(A) ON THIS ISSUE. ACCORDINGLY, DEPARTMENTAL GR OUND NO.1 FAILS. DEPARTMENTAL GROUND NO. 2 & 2.1 CHIRAG SHAH (SS)193 AND OTHERS 14 THIS GROUND OF APPEAL IS AGAINST THE ACTION OF THE LD. CIT(A) IN DELETING THE ADDITION OF RS.37,34,000/- MADE BY THE AO ON ACCOUN T OF UNEXPLAINED INCOME FROM SALE OF LAND. THE BRIEF FACTS RELATING TO THE GROUND, AS NOTED BY THE AO IN THE BODY OF THE ASSESSMENT ORDER, ARE THAT THE AO, ON THE BASIS OF STATEMENT OF SOME BALMUKUND RECORDED ON 26.12.2011, NOTED THAT CERTAIN LAND AT KHASRA NO. 931, 934, 935 & 952 SITUATED AT VILLAGE BIJALPUR WERE BOUGHT BY SHRICHI RAG SHAH FROM BALMUKUND& OTHERS. THE AO FURTHER NOTED THAT THE AFORESAID LAN D WAS SOLD TO M/S. ENTERTAINMENT WORLD DEVELOPERS THROUGH ONE POWER OF ATTORNEY HOLD ER NAMELY, SHRINIKUL PATEL WHO IS THE EMPLOYEE OF SHRICHIRAG SHAH. ON BEING AS KED THROUGH A SUMMON, THE AO NOTED THAT THE ASSESSEE HAD DENIED THE PURCHASE OF SUBJECT LAND IN HIS NAME AND FURTHER CLAIMED THAT HE WAS ONLY ACTING AS A BROKER BETWEEN THE SALE DEAL WHICH TOOK PLACE BETWEEN SHRIBALMUKUND AND OTHERS AS SELLERS AND M/S . ENTERTAINMENT WORLD DEVELOPERS AS A PURCHASER . HOWEVER, IN ABSENCE OF ANY DOCUMENTARY EVIDENCE FURNISHED BY THE ASSESSEE FOR SUBSTANTIATING THE BR OKERAGE INCOME AND FURTHER ON THE BASIS OF STATEMENT OF SHRIBALMUKUND, THE AO REACHED TO THE CONCLUSION THAT THE ASSESSEE WAS THE ACTUAL PERSON WHO HAD SOLD THE AFO RESAID LAND TO M/S. ENTERTAINMENT WORLD DEVELOPERS. CONSEQUENTLY, THE AO MADE AN ADDI TION OF RS.37,34,000/- IN THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF UNDISCLO SED INCOME ON SALE OF LAND. THE RELEVANT FINDINGS OF THE ASSESSING OFFICER ARE RECO RDED AT PARA 5.1 TO PARA 5.8 FROM PAGE NO. 2 TO 5 OF THE ASSESSMENT ORDER. CHIRAG SHAH (SS)193 AND OTHERS 15 MATTER CARRIED TO LD. CIT(A) AND LD. CIT(A), AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE, DELETED THE ADDITION OF RS.37,34,0 00/- BY GIVING HIS FINDINGS AT PARA8.4 TO 8.6, PAGE NO. 18 & 19 OF HIS ORDER, WHIC H READ AS UNDER: 8.4 I FIND THAT BEFORE THE UNDERSIGNED, THE A/R OF THE APPELLANT RAISED THE SAME LEGAL GROUND WHICH WAS RAISED BY HI M IN RESPECT OF GROUND NO.3. THE APPELLANTS A/R CONTENDED THAT THE IMPUGNED ADDITION IS NOT BASED UPON ANY INCRIMINATING MATERI AL OR DOCUMENT FOUND DURING THE COURSE OF SEARCH BUT IT IS MERELY BASED ON SOME FIELD ENQUIRY. THE APPELLANTS A/R FURTHER RELIED ON THE DECISION OF SPECIAL BENCH, MUMBAI IN THE CASE OF ALL CARGO GLOBAL LOGIS TICS LTD. (SUPRA) IN SUPPORT OF HIS CONTENTION. 8.5 I HAVE CONSIDERED THE AOS ORDER AS WELL AS THE APP ELLANTS SUBMISSION AND ALSO THE DOCUMENTS PLACED ON RECORD. AFTER CONSIDERING ALL THE FACTS AND CIRCUMSTANCES OF THE CASE, I DO N OT FIND ANY SUBSTANCE IN THE AOS ACTION IN MAKING THE IMPUGNED ADDITION. I FIND FULL SUBSTANCE IN THE APPELLANTS THIS ARGUMENT THAT THE IMPUGNED ADDITION IN THE LIGHT OF THE DECISION OF THE HONBLE SPECIAL BENCH OF ITAT, MUMBAI IN THE CASE OF M/S. ALL CARGO GLOBAL LOGISTI CS LTD.(SUPRA) IS COMPLETELY UNJUSTIFIED AND INCORRECT. EVEN I FIND T HAT THE AO THROUGH FIELD ENQUIRY GATHERED THAT CERTAIN LANDS AT VILLAG E BIJALPUR WERE BOUGHT BY THE APPELLANT. HOWEVER I FIND THAT THE AO HAS NO T MADE REFERENCE OF ANY INCRIMINATING MATERIAL OR DOCUMENT FOUND DURING THE COURSE OF CHIRAG SHAH (SS)193 AND OTHERS 16 SEARCH. IN VIEW OF SUCH POSITION AND ALSO TAKING NO TE OF THE FACTS OF THE CASE, I HOLD THAT THE AO WAS NOT JUSTIFIED IN MAKIN G THE IMPUGNED ADDITION WITHOUT HAVING RECOURSE TO ANY INCRIMINATI NG MATERIAL. 8.6 EVEN ON MERITS OF THE APPELLANTS CASE, I DO NOT FI ND ANY MERITS IN THE ORDER OF THE A.O., WHILE MAKING THE IMPUGNED AD DITION. I FIND THAT THE AO HIMSELF ADMITTED THE FACT THAT SALE HAS TAKE N PLACE BETWEEN SOME M/S. ENTERTAINMENT WORLD DEVELOPERS, AS BUYER AND BY SHRIBALMUKUND AND HIS FAMILY AS SELLERS. IN THIS BA CKGROUND ALSO, IT IS SEEN THAT THE APPELLANT WAS NOT THE LEGAL OWNER OF THE IMPUGNED PROPERTY. EVEN I FIND THAT, WHILE RECORDING THE STA TEMENT OF THE APPELLANT ON OATH BEFORE THE AO, A COMPLETE DENIAL WAS MADE BY THE APPELLANT TO HAVE BEEN PURCHASED THE SUBJECT LAND E ITHER FOR HIMSELF OR ANY OF HIS FAMILY MEMBERS. I ALSO FIND THAT THE AO HAS ALSO TAKEN NOTE OF EXECUTION OF POWER OF ATTORNEY IN RESPECT OF THE SUBJECT LAND IN FAVOUR OF ONE OF THE EMPLOYEES OF THE APPELLANT. IT IS ALSO SEEN THAT THE APPELLANT HAS SUBSTANTIATED THE CIRCUMSTANCES IN WH ICH THE POWER OF ATTORNEY OF THE SUBJECT LAND GOT EXECUTED IN THE NA ME OF ONE OF HIS EMPLOYEES. ON PERUSAL OF THE COMPUTATION OF INCOME OF THE APPELLANT, IT REVEALS THAT THE APPELLANT HAS SHOWN INCOME FROM CONSULTANCY OF INVESTMENT IN PROPERTIES. THEREFORE, WITHOUT ANY CO RROBORATIVE EVIDENCE, THE EXPLANATION OF THE APPELLANT CANNOT B E RULED OUT. ACCORDINGLY I AM OF THE CONSIDERED VIEW THAT THE A. O. HAS MADE THE CHIRAG SHAH (SS)193 AND OTHERS 17 ADDITION WITHOUT ANY COGENT EVIDENCE. IN VIEW OF TH E FOREGOING, I CONSIDER IT PROPER AND APPROPRIATE TO HOLD THAT THE A.O. WAS NOT JUSTIFIED IN MAKING ADDITION OF RS.37,34,000/- IN T HE APPELLANTS INCOME ON ACCOUNT OF UNDISCLOSED INCOME ON SALE OF LAND. T HUS, THE ADDITION SO MADE BY THE A.O. IS DELETED. IN THE RESULT, THIS GR OUND OF APPEAL IS ALLOWED. THE LD. AR HAS MADE ORAL AS WELL AS WRITTEN SUBMIS SION AS UNDER: I) IT IS SUBMITTED THAT THE AO HAS MADE THE IMPUGNED A DDITION MERELY ON THE BASIS OF SOME SO CALLED FIELD ENQUIRY CONDUCTED BY HIM BUT THERE WAS NO COGENT EVIDENCE ON RECORD WITH THE AO TO SUBSTANTIATE THE ADDITION MADE BY HIM. FURTHER, THE AO HIMSELF HAS RECORDED STATEMENT OF THE SELLER OF THE LAND NA MELY SHRI BALMUKUND IN WHICH THE SELLER HAS ADMITTED TO HAVE SOLD THE SUBJECT LAND TO SOME M/S. ENTERTAINMENT WORLD DEVEL OPERS. EVEN IT SHALL BE PERTINENT TO NOTE THAT AT NO POINT OF T IME, THE ASSESSEE WAS THE LEGAL OWNER OF THE IMPUGNED PROPERTY. WHILE MAKING THE SUBJECT ADDITION, THE AO HAS TAKEN A NOTE OF THE EX ECUTION OF POWER OF ATTORNEY IN FAVOUR OF ONE OF THE EMPLOYEES OF THE ASSESSEE IN RESPECT OF THE SUBJECT LAND. THE ASSESS EE HAS COMPLETELY JUSTIFIED THE CIRCUMSTANCES AS TO WHY TH E POWER OF ATTORNEY GOT EXECUTED IN THE NAME OF ONE OF HIS EMP LOYEES. THE ASSESSEE HAS ALSO SHOWN INCOME FROM CONSULTANCY OF INVESTMENT CHIRAG SHAH (SS)193 AND OTHERS 18 IN PROPERTIES. IN SUCH CIRCUMSTANCES, THE SUBJECT A DDITION RIGHTLY DELETED BY THE LD. CIT(A) DESERVES TO BE MAINTAINED . LD. DR HAS RELIED ON THE ORDER OF THE AO. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PAR TIES AND HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE AO HIMSELF ADMITTED THE FACT THAT SALE HAS TAKEN PLACE BETWEEN SOME M/S. ENTERTAINMENT WOR LD DEVELOPERS, AS BUYER AND BY SHRI BALMUKUND AND HIS FAMILY AS SELLERS, THUS, THE ASSESSEE WAS NOT THE LEGAL OWNER OF THE IMPUGNED PROPERTY. WHILE RECORDING THE STATEMENT OF THE SELLER ON OATH BEFORE THE AO, A COMPLETE DENIAL WAS MADE BY T HE SELLER TO HAVE SOLD THE SUBJECT LAND EITHER TO THE ASSESSEE OR ANY OF HIS F AMILY MEMBERS. THE AO HAS ALSO TAKEN NOTE OF EXECUTION OF POWER OF ATTORNEY IN RES PECT OF THE SUBJECT LAND IN FAVOUR OF ONE OF THE EMPLOYEES OF THE ASSESSEE. THE ASSESS EE HAD SUBSTANTIATED THE CIRCUMSTANCES IN WHICH THE POWER OF ATTORNEY OF THE SUBJECT LAND GOT EXECUTED IN THE NAME OF ONE OF HIS EMPLOYEES. ON PERUSAL OF THE COM PUTATION OF INCOME OF THE ASSESSEE, ONE FACT IS OOZING OUT THAT THE ASSESSEE HAD SHOWN INCOME FROM CONSULTANCY OF INVESTMENT IN PROPERTIES. THEREFORE, WITHOUT ANY CORROBORATIVE EVIDENCE, THE EXPLANATION OF THE ASSESSEE CANNOT BE RULED OUT. ACCORDINGLY, WE ARE IN AGREEMENT WITH THE VIEW OF THE LD. CIT(A) THAT THE A.O. HAS MADE THE ADDITION WITHOUT ANY COGENT EVIDENCE AND WAS NOT JUSTIFIED I N MAKING ADDITION OF RS.37,34,000/- IN THE ASSESSEES INCOME ON ACCOUNT OF UNDISCLOSED INCOME ON SALE OF CHIRAG SHAH (SS)193 AND OTHERS 19 LAND. THUS, THE FINDING THE LD. CIT(A) IS CONFIRMED . ACCORDINGLY, THESE GROUNDS OF APPEAL OF THE REVENUE ARE DISMISSED. DEPARTMENTAL GROUND NO.3 THIS GROUND OF APPEAL IS GENERAL IN NATURE AND, THE REFORE, NO SEPARATE ADJUDICATION IS REQUIRED. A.Y. 2008-09 ASSESSEES APPEAL NO. : 193/IND/2013 DEPARTMENTALS APPEAL NO. : 245/IND/2013 ASSESSEES GROUND NO. 1 THIS GROUND OF APPEAL RELATES TO THE ADDITION OF RS .65,00,000/- MADE IN THE HANDS OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED CAS H CREDIT IN THE NAME OF M/S. IVORY CONSULTANTS PVT. LTD. BY INVOKING PROVISIONS OF SEC TION 68 OF THE ACT. THE BRIEF FACTS RELATING TO THE GROUND, AS NOTED BY THE AO IN THE IMPUGNED ORDER, ARE THAT ON THE BASIS OF CERTAIN LOOSE PAPER S FOUND AND SEIZED DURING THE COURSE OF SEARCH FROM SHRIARUNDAGARIA, THE AO FOUND THAT T HE ASSESSEE HAD MADE CERTAIN INVESTMENT FOR PURCHASE OF SHARES OF A COMPANY NAME D AS M/S. SPLASH MEDIA & INFRA LTD.. THE ASSESSEE WAS REQUIRED BY THE AO TO FURNIS H THE DETAILS OF INVESTMENT AND SOURCES OF THE INVESTMENT IN THE ABOVE NAMED COMPAN Y. ACCORDING TO THE AO, THE ASSESSEE FURNISHED THE DETAILS OF INVESTMENT AND SO URCES IN THE SHARES AT RS.1,33,69,440/- AS PER DETAILS REPRODUCED AT PARA 5.3 OF THE IMPUGNED ORDER. FROM THE CHIRAG SHAH (SS)193 AND OTHERS 20 DETAILS FURNISHED BY THE AO, THE AO NOTED THAT THE ASSESSEE HAD, INTER ALIA, CLAIMED TO HAVE RECEIVED A SUM OF RS.65,00,000/- FROM A KOLKAT A BASED COMPANY, NAMELY M/S. IVORY CONSULTANTS PVT. LTD., A SUM OF RS.12,00,000/ - FROM M/S. SATELLITE ENCLAVE PVT. LTD., A SUM OF RS.4,00,000/- FROM SOME MR. DEEPAK S HARMA, A SUM OF RS.9,00,000/- FROM SOME MR. SANJAY JAIN, RS.17,25,000/- FROM M/S. SATELLITE INFRA & REAL ESTATE PVT. LTD., RS.15,00,000/- FROM SMT. SHWETA SHAH AND RS.11,44,440/- AS PETTY LOANS FROM VARIOUS PERSONS. IN ORDER TO VERIFY THE GENUIN ENESS OF THE LOAN TRANSACTION WITH M/S. IVORY CONSULTANTS PVT. LTD., THE AO ISSUED A C OMMISSION TO DDIT (INV.), KOLKATA ON 16/11/2011 U/S. 131(1)(D) OF THE ACT. HOWEVER, A S PER THE COMMISSION REPORT, THE ABOVE NAMED COMPANY WAS NOT FOUND AT THE GIVEN ADDR ESS. FINALLY THE AO HELD THAT THE ASSESSEE COULD NOT SUBSTANTIATE SOURCES OF INVE STMENTS IN SHARES OF M/S. SPLASH MEDIA & INFRA LTD. TO THE EXTENT OF RS.89,44,440/-. THE AO, AFTER GIVING CREDIT FOR THE ADDITIONAL INCOME OF RS.24,44,440/- ADMITTED BY THE ASSESSEE HIMSELF AND SHOWN IN THE RETURN OF INCOME U/S 153A, MADE AN ADDITION OF RS.65,00,000/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN THE SHARES OUT OF UNEXPLA INED CASH CREDIT IN THE NAME OF M/S. IVORY CONSULTANTS PVT. LTD..THE RELEVANT FINDI NGS OF THE ASSESSING OFFICER ARE RECORDED AT PARA 5.1 TO PARA 5.9 FROM PAGE NO. 4 TO 7 OF THE ASSESSMENT ORDER. MATTER CARRIED TO LD. CIT(A) AND LD. CIT(A), AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE, CONFIRMED THE ADDITION OF RS.65,00 ,000/- BY GIVING HIS FINDINGS AT PARA 6.4, PAGE NO. 16 OF HIS ORDER, WHICH READ AS UNDER: 6.4 I HAVE CONSIDERED THE A.O.S ORDER AS WELL AS THE A PPELLANTS A/R SUBMISSION. EVEN I ALSO TOOK NOTE OF THE DOCUMENTS FILED BY THE APPELLANTS A/R IN SUPPORT OF HIS CONTENTION. HAVIN G TAKEN NOTE OF THE CHIRAG SHAH (SS)193 AND OTHERS 21 SAME, I DO NOT FIND ANY INFIRMITY IN THE ORDER OF T HE A.O. WHILE MAKING THE AFORESAID ADDITION OF RS.65,00,000/- IN THE APP ELLANTS INCOME ON ACCOUNT OF UNEXPLAINED INVESTMENT IN SHARE OF M/S. SPLASH MEDIA & INFRA LTD, BECAUSE THE APPELLANT COULD NOT DISCHARG E HIS ONUS OF ESTABLISHING THE SOURCES OF LOAN OF RS.65,00,000/- CLAIMED TO HAVE BEEN RECEIVED FROM A KOLKATA BASED COMPANY, NAMELY M/S. IVORY CONSULTANTS PVT. LTD. THE DDIT (INV.) KOLKATA REPORT DATED 22/1 2/2011, WHICH WAS RECEIVED BY THE A.O. U/S 131(1)(D) OF THE ACT, CLEA RLY STATES THAT THE ABOVE NAMED COMPANY WAS NOT FOUND AT THE GIVEN ADDR ESS. THUS, IT IS EVIDENT THAT APPELLANT COULD NOT DISCHARGE THE PREL IMINARY ONUS TO ESTABLISH THE SOURCES OF ANY INVESTMENT FOUND TO HA VE BEEN MADE BY HIM. AS THE APPELLANT WAS REQUIRED NOT ONLY TO ESTA BLISH THE NATURE OF SOURCE, BUT ALSO CREDENCE OF THE SOURCE. HOWEVER, T HE APPELLANT COULD NOT EVEN ESTABLISH THE IDENTITY OF THE COMPANY FROM WHICH HE HAD CLAIMED TO HAVE RECEIVED THE IMPUGNED SUM OF RS.65, 00,000/-. SINCE THE APPELLANT MISERABLE FAILED TO ESTABLISH THE IDE NTITY AND EXISTENCE OF THE CREDITOR ITSELF, HENCE IN MY CONSIDERED VIEW, T HE AO WAS COMPLETELY JUSTIFIED IN HOLDING THE SUM OF RS.65,00,000/- AS U NEXPLAINED. ACCORDINGLY, I FIND NO INFIRMITY IN THE A.O.S ACTI ON IN MAKING THE ADDITION. ACCORDINGLY THE ADDITION SO MADE BY THE A .O. IS CONFIRMED. THUS, THIS GROUND OF APPEAL IS DISMISSED. AGAINST THE ACTION OF THE LD. CIT(A) IN CONFORMING THE SUBJECT ADDITION, THE ASSESSEE IS IN FURTHER APPEAL BEFORE THIS BENCH. THE LD. AR HAS MADE ORAL AS WELL AS WRITTEN SUBMISS ION: I) IT IS SUBMITTED THAT SINCE THE ASSESSEE HAD ALRE ADY OFFERED UNDISCLOSED INCOME AMOUNTING TO RS.55,00,000/- IN H IS RETURN OF CHIRAG SHAH (SS)193 AND OTHERS 22 INCOME FURNISHED UNDER S.153A, WHILE MAKING THE FUR THER ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT IN SH ARES, THE CREDIT FOR THE ENTIRE SUM OF RS.55,00,000/- WAS OUG HT TO HAVE BEEN GIVEN. ACCORDINGLY, IF THE AO HAD DETERMINED T HE QUANTUM OF UNRECORDED INVESTMENT TO THE EXTENT OF RS.89,44, 440/-, THEN AFTER GIVING SET-OFF OF UNDISCLOSED INCOME OF RS.55 ,00,000/- ALREADY OFFERED BY THE ASSESSEE IN HIS RETURN OF IN COME, THE ADDITION OUGHT TO HAVE BEEN RESTRICTED TO RS.34,44, 440/- ONLY. II) IT IS SUBMITTED THAT THE LEARNED AO WAS NOT JUS TIFIED IN REACHING TO THE CONCLUSION THAT THE LOAN OF RS.65,00,000/- S HOWN TO HAVE BEEN RECEIVED BY THE APPELLANT FROM A COMPANY NAMED AS M/S. IVORY CONSULTANTS PVT. LTD., 27, BRABOURNE ROAD, KO LKATA WAS NOT GENUINE. IT IS SUBMITTED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE APPELLANT, VIDE HIS LETTER DATED 1 8-11-2011 [KINDLY REFER PB PAGE NO. 73 & 74], HAD FURNISHED C OMPLETE DETAILS REGARDING THE LOAN TRANSACTIONS CARRIED OUT BY HIM WITH THE ABOVE NAMED COMPANY. THE APPELLANT, BESIDES ESTABLI SHING THE IDENTITY OF THE COMPANY, HAD ALSO ESTABLISHED GENUI NENESS OF THE TRANSACTIONS AS WELL AS CREDITWORTHINESS OF THE COM PANY ALONG WITH ALL THE NECESSARY DOCUMENTS. CHIRAG SHAH (SS)193 AND OTHERS 23 III) BESIDES FURNISHING THE DETAILS AS ABOVE, THE A PPELLANT, VIDE HIS EARLIER SUBMISSION LETTER DATED 07-11-2011, HAD ALS O FURNISHED VARIOUS DOCUMENTS FOR ESTABLISHING THE GENUINENESS OF THE LOAN TRANSACTIONS. A COPY OF THE VARIOUS DOCUMENTS, AS F URNISHED BEFORE THE LEARNED AO, ARE PLACED IN OUR PAPER BOOK AS PER DETAILS GIVEN BELOW: (I) COPY OF THE LETTER OF CONFIRMATION DULY GIVEN BY M/ S. IVORY CONSULTANTS PVT. LTD. CONFIRMING THE TRANSACTIONS O F LOAN [PB PAGE NO. 86 TO 89]. (II) COPY OF MASTER DETAILS OF M/S. IVORY CONSULTANTS PV T. LTD. [PB PAGE NO. 90]. (III) COPY OF THE PAN DETAILS OF M/S. IVORY CONSULTANTS P VT. LTD. [PB PAGE NO. 91]. IT SHALL THUS BE APPRECIATED THAT BY FURNISHING THE DOCUMENTS AS ABOVE, THE APPELLANT HAD DISCHARGED THE INITIAL ONUS LIED UPON HIM FOR PROVING THE IMPUGNED CASH CREDIT OF RS.65,00,000/- AND, THE REFORE, THERE WAS NO JUSTIFICATION FOR THE LEARNED AO IN TAKING AN ADVER SE VIEW. IV) IT IS FURTHER SUBMITTED THAT THE ASSESSEE HAD RECEI VED SUM OF RS.65,00,000/- THROUGH ACCOUNT PAYEE CHEQUE FROM A KOLKATA BASED COMPANY TITLED AS M/S. IVORY CONSULTANTS PVT. LTD. WHO IS ASSESSED TO INCOME-TAX. AS PER THE VERSION OF THE A O, THE COMPANY WAS NOT FOUND IN EXISTENCE AT THE GIVEN ADD RESS. HOWEVER, THE AO HAS NOT GIVEN SUFFICIENT OPPORTUNIT Y TO THE CHIRAG SHAH (SS)193 AND OTHERS 24 ASSESSEE FOR PRODUCING THE DIRECTORS OF THE ABOVE N AMED COMPANY AS THE SHOW CAUSE LETTER WAS ISSUED TO THE ASSESSEE AT THE FAG END I.E. ON 22-12-2011 WHILE THE ASSESSMENT PROCEEDINGS WERE GETTING BARRED BY LIMITATION ON 31-12-2011. IN SUCH CIRCUMS TANCES, THE ASSESSEE PRAYS BEFORE THIS HONBLE BENCH THAT ONE M ORE OPPORTUNITY BE GIVEN TO IT TO ESTABLISH THE IDENTIT Y OF THE ABOVE NAMED LENDER COMPANY. LD. DR HAS RELIED ON THE ORDER OF THE AO. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PAR TIES AND HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THE ASSESSEE CLAIMED THAT HE HAD PRODUCED THE DETAILS REGARDING THE LOAN TRANSACTIONS CARRIED OUT BY HIM WITH THE CONCERNED COMPANY AND ALSO FURNISHED VARIOUS DOCUMENTS FOR ESTABLISHING THE GENUINENESS OF THE LOAN TRANSACTIONS, THEREFORE, HE HAD DISCHARGED THE INITIAL ONUS LIED UPON HIM FO R PROVING THE IMPUGNED CASH CREDIT OF RS.65,00,000/-. THE ASSESSEE FURTHER CLAIMED THA T THE ASSESSING OFFICER HAS NOT GIVEN SUFFICIENT OPPORTUNITY TO THE ASSESSEE FOR PR ODUCING THE DIRECTORS OF THE CONCERNED COMPANY AS THE SHOW-CAUSE NOTICE WAS ISSU ED TO THE ASSESSEE AT THE FAG END I.E. ON 22.12.2011 JUST FEW DAYS BEFORE 31.12.2011, WHEN THE ASSESSMENT PROCEEDINGS WERE GETTING TIME BARRED BY LIMITATION. WE, THEREFO RE, IN THE INTEREST OF JUSTICE AND FAIR PLAY, REMAND THE ISSUE BACK TO THE FILE OF THE ASSE SSING OFFICER TO VERIFY THE CLAIM OF THE ASSESSEE AFRESH IN ACCORDANCE WITH LAW AFTER PR OVIDING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ALSO DIRECT THAT WH ILE MAKING ANY ADDITION IN THE CHIRAG SHAH (SS)193 AND OTHERS 25 HANDS OF THE ASSESSEE ON ACCOUNT OF ANY UNEXPLAINED INVESTMENT, DUE CREDIT SHOULD BE GIVEN TO THE ASSESSEE FOR ADDITIONAL INCOME ALREADY SHOWN BY HIM IN HIS RETURN OF INCOME FILED U/S 153A AND ANY DISCREPANCY OF ANY AM OUNT OF UNEXPLAINED INVESTMENT OVER AND ABOVE THE AMOUNT, SUO-MOTTO, DECLARED BY T HE ASSESSEE IN HIS RETURN OF INCOME HAS TO BE ADDED SUBJECT TO DUE VERIFICATION. ACCORDINGLY, GROUND NO.1 IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ASSESSEES GROUND NO. 2(A) &2(B) AND DEPARTMENTAL G ROUND NO. 3 TO 3.2 THESE GROUNDS OF APPEAL PERTAIN TO THE ESTIMATION O F BROKERAGE @4% BY THE LD. CIT(A) ON ADDITION OF RS.5,57,30,000/- MADE BY THE AO ON PROTECTIVE BASIS IN THE HANDS OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED REC EIPT IN BHAURASLA LAND. THE BRIEF FACTS RELATING TO THE GROUND, AS NOTED BY THE AO IN THE BODY OF THE ASSESSMENT ORDER, ARE THAT DURING THE COURSE OF SEA RCH IN THE PREMISES OF M/S. PHOENIX DEVCONS PVT. LTD., A COMPUTER WAS FOUND AND FROM SU CH COMPUTER, ONE EXCEL SHEET WAS EXTRACTED CONTAINING THE FOLDER NAMED BHAURASL A DETAILS. THE AO REPRODUCED THE DETAILS IN THE BODY OF THE ASSESSMENT ORDER. ON THE BASIS OF THE EXCEL SHEET, THE AO NOTED THAT SHRI NILESH AJMERA HAD MADE CERTAIN PAYM ENTS TO THE ASSESSEE FOR SOME BHAURASLA LAND. UPON CONFRONTING, THE ASSESSEE, BEF ORE THE AO, DESCRIBED THE ABOVE SAID COMPUTER SHEET AS A DUMB DOCUMENT ONLY. HOWEVE R, THE AO DID NOT HOLD SO AND ON THE BASIS OF THE DETAILS MADE IN THE SHEET, MADE AN ADDITION OF A SUM OF CHIRAG SHAH (SS)193 AND OTHERS 26 RS.5,57,30,000/- IN THE ASSESSEES INCOME FOR THE A SSESSMENT YEAR UNDER CONSIDERATION ON PROTECTIVE BASIS. THE AO MADE THE SIMILAR ADDITI ON OF A SUM OF RS.2,26,83,500/- IN THE SUBSEQUENT ASSESSMENT YEAR I.E. A.Y. 2009-10, O N PROTECTIVE BASIS. THE RELEVANT FINDINGS OF THE ASSESSING OFFICER ARE RECORDED AT P ARA 7.1 TO PARA 7.5 FROM PAGE NO. 8 TO 10 OF THE ASSESSMENT ORDER. MATTER CARRIED TO LD. CIT(A) AND LD. CIT(A), AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE, DELETED THE ADDITION OF RS.5,57,30 ,000/- BUT MADE AN ADDITION OF RS.22,29,200/- BY ESTIMATING BROKERAGE @4% ON THE S UM OF RS.5,57,30,000/- IN RESPECT OF LAND DEAL AT VILLAGE BHAURASLA, INDORE A FTER GIVING HIS FINDINGS AT PARA 8.4, PAGE NO. 30-31 OF HIS ORDER, WHICH READ AS UNDER: 8.4 I HAVE CONSIDERED THE AOS ORDER AS WELL AS THE APP ELLANTS A/R SUBMISSION. HAVING CONSIDERED BOTH, I FIND THAT THE A.O. HAS MADE THE ADDITION MERELY BASED ON A TRANSACTION NOTED ON EXC EL SHEET WHICH WAS SEIZED FROM THE COMPUTER OF M/S PDPL IN RESPECT OF BHAURSALA LAND DEAL. THE A.O. HAS EXTRACTED THE SAID EXCEL SHEET I N PARA-7.1 OF THE ORDER. AS THE ENTIRE TRANSACTION WAS NOTED TO RS.9, 17,13,500/-, THUS BASED ON TIME PERIOD, THE A.O. HAS HELD A SUM OF RS .5,57,30,000/- PERTAINING TO THIS A.Y. AS UNEXPLAINED INVESTMENT O F THE APPELLANT, WHICH HAS BEEN STATED TO BE RECEIVED FROM SHRINILES HAJMERA. HAVING CONSIDERED THE APPELLANTS SUBMISSION, I AM OF THE CONSIDERED VIEW THAT THE SAID SUM CANNOT BE HELD TO BE UNEXPLAINED INCOM E UNLESS & UNTIL IT IS ESTABLISHED UNDER THE PURVIEW OF PROVISION OF TH E ACT FOR UNEXPLAINED INCOME. BUT ONE FACT IS CLEAR FROM THE APPELLANTS SUBMISSION ITSELF THAT HE WAS WORKING AS A BROKER AND ACTIVELY PARTICIPATE D IN THE LAND DEAL AT BHAURSALA LAND. I FIND THAT THE APPELLANT HAS ACCEP TED OF EARNING OF CHIRAG SHAH (SS)193 AND OTHERS 27 BROKERAGE INCOME OF RS.2,00,000/- IN THE ENTIRE TRA NSACTION, WHICH IS FALLING PART OF HIS BROKERAGE INCOME RETURNED OF RS .66,67,560/-. HOWEVER ON THE BASIS OF APPELLANTS SUBMISSION ITSE LF, I CONSIDER IT PROPER AND APPROPRIATE TO HOLD THAT THE APPELLANT H AS MERELY ACTED AS A MEDIATOR/BROKER IN SUCH PURCHASE OF BHAURSALA LAN D DEAL. THE A.O. HAS NOWHERE ESTABLISHED THAT THE ENTIRE SUM OF RS.9 .17 CRORE WAS ACCUMULATED AND REMAINS WITH THE APPELLANT AS INCOM E. IN THIS PERSPECTIVE OF THE FACT, I DO NOT AGREE WITH THE A. O.S FINDINGS. IN MY CONSIDERED VIEW, THE A.O. WAS COMPLETELY UNJUSTIFIE D AND INCORRECT IN HOLDING THE ENTIRE SUM OF RS.5,57,30,000/- AS UNEXP LAINED INCOME ON PROTECTIVE BASIS. HOWEVER TAKING NOTE OF ENTIRE FAC TS AVAILABLE ON RECORD, I CONSIDER IT PROPER AND APPROPRIATE TO HOL D THAT THE APPELLANT HAS MERELY ACTED AS BROKER IN THE BHAURSALA LAND DE AL, WHICH IS ADMITTED FACT FROM THE APPELLANTS SUBMISSION, HENC E I CONSIDER IT PROPER AND APPROPRIATE TO DIRECT THE A.O. TO ASSESS THE BROKERAGE INCOME ON SUBSTANTIVE BASIS IN THE HANDS OF THE APP ELLANT @4%, WHICH IS PREVAILING RATE OF COMMISSION IN LAND DEALS ON E NTIRE SUM OF RS.5,57,30,000/-, WHICH WILL COMES TO RS.22,29,200/ -. THUS, THE ADDITION MADE BY A.O. IS CONFIRMED TO THE EXTENT OF RS.22,29 ,200/-. ACCORDINGLY THIS GROUND OF APPEAL IS PARTLY ALLOWED. AGAINST THE ABOVE ESTIMATION OF BROKERAGE @4% BY TH E LD. CIT(A), THE ASSESSEE IS IN FURTHER APPEAL BEFORE THIS BENCH WHE REAS AS AGAINST THE COMPUTATION OF THE QUANTUM OF BROKERAGE, THE REVENUE HAS PREFERRED A SEPARATE APPEAL BEFORE THIS BENCH. THE LD. AR HAS MADE ORAL AS WELL AS WRITTEN SUBMIS SION AS UNDER: CHIRAG SHAH (SS)193 AND OTHERS 28 I) IT IS SUBMITTED THAT THE ASSESSEE HAS NEVER MADE ANY INVESTMENT IN THE SUBJECT LAND. THE NATURE OF THE BUSINESS OF THE ASSESSEE IS THAT OF A REAL ESTATE BROKER AND COMMISSION AGENT ONLY A ND IN THE SUBJECT BHAURASLA DEAL TOO HE WAS ONLY ACTING AS A COMMISSION AGENT. YOUR HONOURS, EVEN THE AO, AT PARA 7.2 OF HI S ORDER, HAS GIVEN THE FINDING THAT SHRINILESHAJMERA MADE THE PA YMENT FOR PURCHASE OF BHAURASLA LAND THROUGH THE ASSESSEE THE REBY MEANING THAT THE ASSESSEE MERELY ACTED AS A BROKER IN THE S AID LAND DEAL. II) IT IS SUBMITTED THAT THE ASSESSEE HAS BEEN SHOWING INCOME FROM PROPERTY BROKERAGE IN HIS RETURN OF INCOME FOR MANY YEARS AND EVEN FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, T HE ASSESSEE HAS SHOWN A SUBSTANTIAL INCOME OF RS.66,67,560/- UN DER THE HEAD INCOME FROM BUSINESS OR PROFESSION. IT IS SUBMITT ED THAT THE BROKERAGE INCOME ESTIMATED BY THE LD. CIT(A) IS DUL Y INCLUDED IN THE BROKERAGE INCOME SHOWN BY THE ASSESSEE HIMSELF IN HIS RETURN OF INCOME AT RS.66,67,560/- AND THEREFORE, NO SEPAR ATE ADDITION WAS WARRANTED. LD. DR HAS RELIED ON THE ORDER OF THE AO. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PAR TIES AND HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE CHIRAG SHAH (SS)193 AND OTHERS 29 FIND THAT THE ASSESSEE IS AN ESTATE BROKER AND COMM ISSION AGENT. THE ASSESSING OFFICER HAS IN HIS PARA 7.2 OF HIS ORDER HAS HELD THAT ONE SHRI NILESH AJMERA HAS MADE PAYMENT FOR PURCHASE OF BHAURASALA LAND THROUGH THE ASSESSEE. THE ASSESSEE HAS SHOWN THE BROKERAGE INCOME IN HIS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION, THE LEARNED CIT(A) HAS ESTIMATED 4% OF BROKERAGE TO THE INCOME OF THE ASSESSEE ON BHAURASALA LAND. THE ASSESSEE HAS TAKEN THE CONTENT ION THAT HE HAS EARNED BROKERAGE OF RS.66,67,650/- DURING THE ENTIRE YEAR. WE FIND T HAT DR HAS NOT REBUTTED THE CONTENTION OF THE AR OF THE ASSESSEE THAT ESTIMATED BROKERAGE INCOME OF RS.22,29,200/- FROM THE BHAURASALA LAND DEAL IS COV ERED BY THE BROKERAGE INCOME OF RS.66,67,560/- SHOWN BY THE ASSESSEE HIMSELF IN HIS RETURN OF INCOME FILED U/S 153A. THUS, WE FIND NO JUSTIFICATION FOR CONSIDERING THE SAME INCOME TWICE. WE ACCORDINGLY, DELETE THE ADDITION OF RS.22,29,200/-. WE FIND THAT ASSESSING OFFICER HAS MADE ADDITION ON PROTECTIVE BASIS IN THE CASE OF CHIRAG SHAH, THEREFORE, WE ARE OF THE VIEW THAT THE ASSESSEE IS MERELY A BROKER AND THEREFORE, CIT(A) IS JUSTIFIED IN HIS ACTION AND OUR INTERFERENCE IS NOT CALLED FOR. ACCORDINGLY, GR OUNDS OF APPEALS OF ASSESSEE ARE ALLOWED AND THAT OF THE REVENUE ARE DISMISSED. ASSESSEES GROUND NO. 3(A) &3(B) AND DEPARTMENTAL G ROUND NO. 4 TO 4.2 THESE GROUNDS OF APPEAL PERTAIN TO THE ESTIMATION O F BROKERAGE @4% BY THE LD. CIT(A) ON ADDITION OFRS.2,95,30,000/- MADE BY THE A O ON PROTECTIVE BASIS IN THE HANDS OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED REC EIPT IN DEVGURADIA LAND. CHIRAG SHAH (SS)193 AND OTHERS 30 THE BRIEF FACTS RELATING TO THE GROUND, AS NOTED BY THE AO IN THE BODY OF THE ASSESSMENT ORDER, ARE THAT DURING THE COURSE OF SEA RCH IN THE PREMISES OF M/S. PHOENIX DEVCONS PVT. LTD., A COMPUTER WAS FOUND AND FROM SU CH COMPUTER, ONE EXCEL SHEET WAS EXTRACTED CONTAINING THE FILE NAMED NEW HISAB 16 CR.. THE AO REPRODUCED THE DETAILS IN THE BODY OF THE ASSESSMENT ORDER. ON THE BASIS OF THE EXCEL SHEET, THE AO NOTED THAT SHRI NILESH AJMERA HAD MADE CERTAIN PAYM ENTS TO THE ASSESSEE FOR SOME DEVGURADIA LAND. UPON CONFRONTING, THE ASSESSEE, BE FORE THE AO, DESCRIBED THE ABOVE SAID COMPUTER SHEET AS A DUMB DOCUMENT ONLY. HOWEVE R, THE AO DID NOT HOLD SO AND ON THE BASIS OF THE DETAILS MADE IN THE SHEET, MADE AN ADDITION OF A SUM OF RS.2,95,30,000/- IN THE ASSESSEES INCOME FOR THE A SSESSMENT YEAR UNDER CONSIDERATION ON PROTECTIVE BASIS. THE AO MADE THE SIMILAR ADDITI ON OF A SUM OF RS.60,00,000/- IN THE SUBSEQUENT ASSESSMENT YEAR I.E. A.Y. 2009-10, O N PROTECTIVE BASIS.THE RELEVANT FINDINGS OF THE ASSESSING OFFICER ARE RECORDED AT P ARA 8.1 TO PARA 8.5 FROM PAGE NO. 11 TO 13 OF THE ASSESSMENT ORDER. MATTER CARRIED TO LD. CIT(A) AND LD. CIT(A), BY CON SIDERING THE SUBMISSION OF THE ASSESSEE, DELETED THE ADDITION OF RS.2,95,30,00 0/- BUT MADE AN ADDITION OF RS.11,81,200/- BY ESTIMATING BROKERAGE @4% ON THE S UM OF RS.2,95,30,000/- IN RESPECT OF LAND DEAL AT VILLAGE DEVGURADIA, INDORE AFTER GIVING HIS FINDINGS AT PARA 9.4, PAGE NO. 34 OF HIS ORDER, WHICH READ AS UNDER: 9.4 I HAVE CONSIDERED THE A.O.S ORDER AS WELL AS THE A PPELLANTS A/R SUBMISSION. HAVING CONSIDERED BOTH, I FIND THAT THE A.O. HAS DISCUSSED THIS ISSUE IN DETAIL IN PARA-8 OF THE ASSESSMENT OR DER. I FIND THAT AN EXCEL CHIRAG SHAH (SS)193 AND OTHERS 31 SHEET IN THE FILE NAME OF NEW HISAB16CR, WHICH WA S EXTRACTED BY A.O. IN PARA-8.1 OF THE ORDER MADE THE AFORESAID ADDITIO N IN THE HANDS OF THE APPELLANT AS UNDISCLOSED/UNEXPLAINED INCOME ON PROT ECTIVE BASIS. HOWEVER AFTER TAKING NOTE OF A.O.S ORDER AND APPEL LANTS SUBMISSION AND SPECIALLY THE A.O.S FINDINGS GIVEN IN PARA-8.2 OF THE ORDER, I AM OF THE CONSIDERED VIEW THAT THE APPELLANT HAS MERELY A CTED AS BROKER AND THE ENTIRE SUM HAS PASSED THROUGH APPELLANT TO THE SELLERS OF THE LAND AS BROKER. EVEN THE A.O. ACCEPT THIS FACT THAT THE PAYMENT WAS MADE BY SHRINILESHAJMERA FOR DEVGURADIA LAND THROUGH SHRICH IRAG SHAH. IN THIS PERSPECTIVE OF APPELLANTS CASE AND ON THE BASIS OF REASONS ASSIGNED BY ME IN THE APPELLANTS CASE WHILE DECIDING GROUND NO S.4(A) AND (B), I CONSIDER IT PROPER AND APPROPRIATE TO DIRECT THE AO TO ASSESS THE BROKERAGE INCOME ON ENTIRE DEAL OF RS.2,95,30,000/- @4% ON SUBSTANTIVE BASIS IN THE HANDS OF THE APPELLANT, WH ICH WILL COME TO RS.11,81,200/-. THUS, THE ADDITION TO THIS EXTENT I S CONFIRMED. ACCORDINGLY THESE GROUNDS OF APPEAL ARE PARTLY ALLO WED. AGAINST THE ABOVE ESTIMATION OF BROKERAGE @4% BY TH E LD. CIT(A), THE ASSESSEE IS IN FURTHER APPEAL BEFORE THIS BENCH WHE REAS AS AGAINST THE COMPUTATION OF THE QUANTUM OF BROKERAGE, THE REVENUE HAS PREFERRED A SEPARATE APPEAL BEFORE THE BENCH. THE LD. AR HAS MADE ORAL AS WELL AS WRITTEN SUBMIS SION AS UNDER: I) IT IS SUBMITTED THAT THE ASSESSEE HAS NEVER MADE ANY INVESTMENT IN THE SUBJECT LAND. IT IS SUBMITTED THAT THE SUBJECT EXCEL SHEET WAS NEITHER MADE BY THE ASSESSEE HIMSELF NOR BY THE REP RESENTATIVES OF CHIRAG SHAH (SS)193 AND OTHERS 32 THE ASSESSEE. FURTHER, THE EXCEL SHEET WAS ALSO NOT FOUND FROM THE POSSESSION OF THE ASSESSEE. IN SUCH CIRCUMSTANCES, THE PRESUMPTION UNDER S.292C WAS NOT AVAILABLE TO THE A SSESSEE. II) ALTHOUGH THE ASSESSEE HAS NOT DERIVED ANY INCOM E FROM ANY DEVGURADIA LAND DEAL BUT EVEN IF IT IS SO PRESUMED THEN IT IS SUBMITTED THAT ANY ESTIMATION OF INCOME FROM SUCH D EAL SHALL BE COVERED BY THE INCOME FROM PROPERTY BROKERAGE SHOWN BY THE ASSESSEE HIMSELF AT RS.66,67,560/- IN HIS RETURN OF INCOME [PAGE NO. 20] AND THEREFORE, NO SEPARATE ADDITION ON THIS COUNT WOULD BE WARRANTED. LD. DR HAS RELIED ON THE ORDER OF THE AO WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PA RTIES AND HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FOUND THAT EXCEL SHEET WAS NOT FOUND FROM ASSESSEE S PREMISES NOR LOOSE PAPERS BELONG TO THE ASSESSEE. THE EXCEL SHEET WAS NOT PRE PARED BY THE ASSESSEE OR HIS AGENT. WE FIND THAT IN THE EXCEL SHEET, THE NAME OF NEW H ISAB 16CR WAS WRITTEN. HOWEVER, THE ASSESSING OFFICER HAS MADE THE ADDITION IN THE HANDS OF ASSESSEE ON PROTECTIVE BASIS. THE ASSESSEE HAS MADE PAYMENT FOR PURCHASE O F DEV GURADIA LAND ON BEHALF OF NILESH AJMERA AND THE ASSESSEE WAS WORKING ONLY AS A BROKER, THEREFORE, THE INCOME CAN BE ASSESSED ONLY THE BROKERAGE INCOME CAN BE AD DED IN THE HANDS OF THE ASSESSEE. THE LEARNED CIT(A) HAS CONSIDERING THE SAME HAS EST IMATED 4% OF THE BROKERAGE IN THE HANDS OF THE ASSESSEE AND WE DO NOT FIND ANY CO NTRARY MATERIAL AGAINST THE FINDINGS CHIRAG SHAH (SS)193 AND OTHERS 33 OF THE LEARNED CIT(A). HOWEVER, WE FIND THAT THE AS SESSEE HAS HIMSELF SHOWN BROKERAGE INCOME OF RS.66,67,560/- IN HIS RETURN FI LED U/S 153A. THE BROKERAGE INCOME OF RS.11,81,200/- CAN BE ACCEPTED AS COVERED BY THE INCOME ALREADY SHOWN. NO DOUBLE ADDITION IS PERMISSIBLE. IN THE RESULT, W E DISMISS THE DEPARTMENTAL APPEAL AND ALLOW THE APPEAL OF THE ASSESSEE ON THIS ISSUE. DEPARTMENTAL GROUND NO. 1 THIS GROUND OF APPEAL OF THE DEPARTMENT IS AGAINST THE ACTION OF THE LD. CIT(A) IN DECIDING THE APPEAL AGAINST THE PRINCIPLES OF NA TURAL JUSTICE, WITHOUT AFFORDING ANY OPPORTUNITY TO THE AO OR REMANDING IT BACK IN VIOLA TION OF THE DEPARTMENTAL INSTRUCTION THAT IN SEARCH ASSESSMENTS APPEAL ORDER BE PASSED EITHER BASED ON REMAND REPORT OR AFTER HEARING THE AO. THE LD. AR HAS MADE ORAL AS WELL AS WRITTEN SUBMIS SION AS UNDER: (I) AT THE OUTSET, IT IS SUBMITTED THAT THE NECESSA RY PROVISIONS PRESCRIBING FOR PROCEDURE OF AN APPEAL BEFORE THE C OMMISSIONER (APPEALS) ARE CONTAINED IN SECTION 250 OF THE INCOM E-TAX ACT, 1961. AS PER THE PROVISIONS OF SUB-SECTION (1) OF S . 250, THE COMMISSIONER (APPEALS) IS REQUIRED TO GIVE A NOTICE OF THE APPEAL TO THE ASSESSEE AND AS ALSO TO THE CONCERNING ASSES SING OFFICER. IT IS SUBMITTED THAT NO FORM HAS BEEN STATUTORILY PRES CRIBED EITHER UNDER THE INCOME-TAX ACT, 1961 OR INCOME-TAX RULES, 1962 FOR ISSUANCE OF THE NOTICE CONTEMPLATED UNDER S. 250. H OWEVER, UPON RECEIPT OF THE APPEAL FROM THE SIDE OF ASSESSEE, AS PER THE CBDTS INSTRUCTIONS, A FORM TITLED AS ITNS-51, SEEKING WIL LINGNESS OF THE AO TO APPEAR AT THE APPELLATE STAGE, IS ISSUED AND THEREUPON THE CHIRAG SHAH (SS)193 AND OTHERS 34 ASSESSING OFFICER HAS TO COMMUNICATE HIS WILLINGNES S TO THE CIT (A) WITHIN 10 DAYS FROM THE RECEIPT OF SUCH ITNS-51 . FURTHER, A COPY OF THE APPEAL MEMO IN THE PRESCRIBED FORM NO.3 5 ALONG WITH THE GROUNDS OF APPEAL TAKEN BEFORE THE CIT(A) ARE ALSO PROVIDED BY THE CIT (A) TO THE CONCERNING ASSESSING OFFICER. (II) IN THE INSTANT CASE, UNDISPUTEDLY, A NOTICE I N ITNS-51 WAS ISSUED AND SERVED UPON THE CONCERNING ASSESSING OFFICER. A COPY OF THE APPEAL MEMO ALONG WITH THE GROUNDS OF APPEAL WERE A LSO PROVIDED TO THE CONCERNING ASSESSING OFFICER. IT IS ALSO UNDISPUTED THAT THE ASSESSING OFFICER DID NOT EXPRESS HIS WILL INGNESS TO MAKE HIS PERSONAL APPEARANCE BEFORE THE CIT (A) DURING T HE COURSE OF THE APPELLATE PROCEEDINGS. (III) IN THE SIMILAR CIRCUMSTANCES, THIS HONBLE BE NCH, IN THE CASE OF CIT VS. KALANI INDUSTRIES LTD. (2007) 8 ITJ 165 (IN DORE TRIB.) AT PAGE NO.249 AND 250, HAS HELD THAT THE ENTITLEMENT OF THE AO TO APPEAR BEFORE CIT (A) COULD BE EXERCISED BY OPTING TO APPEAR AND JOIN THE APPELLATE PROCEEDINGS AND UNLESS SUCH OPTI ON IS EXERCISED BY THE AO, THERE CANNOT BE ANY CASE OF DENIAL OF NA TURAL JUSTICE TO THE REVENUE OR CAUSING ANY PREJUDICE TO THE REVENUE . (IV) AS REGARD THE SO-CALLED DEPARTMENTAL INSTRUCTI ON FOR CALLING THE REMAND REPORT IN SEARCH APPEAL CASES, IT IS SUBMITT ED THAT FIRST OF ALL ANY INSTRUCTION FROM THE CBDT IS NOT BINDING UP ON THE ASSESSEE AND EVEN OTHERWISE ANY SUCH INSTRUCTION IS ONLY DIRECTIVE IN NATURE AND NOT MANDATORY. (V) ALTHOUGH THERE IS NO STATUTORY REQUIREMENT FOR CALLING ANY REMAND REPORT FROM THE AO, BUT DESPITE SUCH FACT, TO THE B EST OF KNOWLEDGE AND BELIEF OF THE ASSESSEE, THE LEARNED C IT (A) HAD CHIRAG SHAH (SS)193 AND OTHERS 35 CALLED FOR NECESSARY DETAILS AND REPORTS FROM THE A O BUT THERE WAS NO COMPLIANCE AS SUCH BY THE THEN AO. (VI) IT IS SUBMITTED THAT IN THE INSTANT CASE, THE LEARNED CIT (A) HAS FRAMED THE APPELLATE ORDER BY TAKING INTO FULL CONS IDERATION VARIOUS OBSERVATIONS AND FINDINGS OF THE ASSESSING OFFICER, SEIZED MATERIAL, WRITTEN SUBMISSIONS AND VARIOUS DOCUMENTA RY EVIDENCES FURNISHED BY THE ASSESSEE. IT IS SUBMITTED THAT THE LEARNED CIT (A) HAS NOT ADMITTED ANY ADDITIONAL EVIDENCE IN VIOLATI ON OF RULE 46A OF THE INCOME-TAX RULES, 1962. MOREOVER, TO ISSUE A DIRECTION TO THE ASSESSING OFFICER FOR CONDUCTING ANY FURTHER IN QUIRY OR FOR SUBMITTING ANY FURTHER REPORT, UNDER THE PROVISIONS OF SUB-SECTION (4) OF S. 250 IS DISCRETIONARY AND NOT MANDATORY. I T IS SUBMITTED THAT ANY ORDER VALIDLY PASSED BY THE FIRST APPELLAT E AUTHORITY AFTER GIVING FULL THOUGHTFUL CONSIDERATION TO THE AOS OR DER AND MATERIALS WHICH WERE ALSO ON RECORD OF THE AO, CANN OT BE LEVELED AS AN ORDER AGAINST THE PRINCIPLES OF NATURAL JUSTI CE FOR THE ONLY REASON THAT THE PROVISIONS OF S. 250 (4) WERE NOT I NVOKED BY THE CIT (A). IN VIEW OF THE ABOVE FACTS AND CONSIDERING THE DIRE CT JUDGMENT OF THIS HONBLE BENCH IN THE CASE OF M/S. KALANI INDUSTRIES (SUPRA), THE FIRST GROUND OF APPEAL OF THE REVENUE DESERVES TO BE DISM ISSED IN LIMINE. LD. DR HAS RELIED ON THE ORDER OF THE AO. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PAR TIES AND HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT IN THE INSTANT CA SE, THE NOTICE WAS ISSUED TO THE CONCERNED AO. THE AO DID NOT REMAIN PRESENT BEFORE LD. CIT(A) DURING ASSESSMENT CHIRAG SHAH (SS)193 AND OTHERS 36 PROCEEDINGS. THE CIT(A) HAS CALLED FOR THE REMAND R EPORT AND AO HAS NOT MADE ANY COMPLIANCE. THE LD. CIT(A) HAS DIRECTED TO MAKE THE FURTHER INQUIRY WHICH LD. CIT(A) HAS NO POWERS BUT LOOKING INTO THE FACTS AND CIRCUM STANCES OF THE CASE, WE FEEL IT APPROPRIATE TO DIRECT THE AO TO MAKE FURTHER INQUIR Y THAT POWERS ARE WELL WITHIN THE JURISDICTION OF THE TRIBUNAL. THEREFORE, IN OUR OPI NION, THE DEPARTMENTAL GROUND DESERVES TO BE DISMISSED AND HENCE, IT IS DISMISSED DEPARTMENTAL GROUND NOS.2 & 2.1 THIS GROUND OF APPEAL IS AGAINST THE ACTION OF THE LD. CIT(A) IN DELETING THE ADDITION OF RS.1,50,00,000/- MADE BY THE AO ON ACCO UNT OF UNEXPLAINED INVESTMENT IN PHOENIX DEVCONS PVT. LTD.. THE FACTS RELATING TO THE GROUND, AS NOTED BY THE A O IN THE ASSESSMENT ORDER ARE THAT DURING THE COURSE OF THE SEARCH PROCEEDINGS IN THE GROUP, CERTAIN LOOSE PAPERS CONTAINING 19 PAGES INVENTORIZED AS LPS A/4 WERE SE IZED FROM THE PREMISES OF M/S. PHOENIX DEVCONSPVT.LTD.. THE AO FURTHER NOTED THAT ON PAGE NO.19 OF THE LPS-A/4, THERE IS NOTING IN RESPECT OF DETAILS OF FUNDS RECE IVED BY THE ABOVE NAMED COMPANY. AMONGST THE DETAILS, THERE IS A NOTING AS REGARD TO FUNDS OF RS.1,50,00,000/- GIVEN BY THE ASSESSEE TO THE COMPANY. THE AO REQUIRED THE AS SESSEE TO EXPLAIN THE SOURCES OF PROVIDING THE FUNDS BY THE ASSESSEE TO THE ABOVE NA MED COMPANY. ACCORDING TO THE AO, THE ASSESSEE COULD NOT FURNISH THE NECESSARY DE TAILS AND, THEREFORE, THE AO BY ASSUMING THE IMPUGNED RECEIPTS PERTAINS TO A.Y. 200 8-09 ONLY, MADE THE ADDITION OF CHIRAG SHAH (SS)193 AND OTHERS 37 RS.1,50,00,000/- IN THE ASSESSEES INCOME UNDER THE HEAD UNEXPLAINED INVESTMENT IN M/S. PHOENIX DEVCONSPVT. LTD..THE RELEVANT FINDING S OF THE ASSESSING OFFICER ARE RECORDED AT PARA 6.1 TO 6.3 AT PAGE NO. 7 TO 8OF TH E ASSESSMENT ORDER. THE LD. CIT(A), AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE, DELETED THE ADDITION OF RS.1,50,00,000/-, BY GIVING HIS FINDING S AT PARA 7.4 & 7.5, PAGE NO. 26 OF HIS ORDER, WHICH READ AS UNDER: 7.4 I HAVE CONSIDERED THE A.O.S ORDER AS WELL AS THE A PPELLANTS A/R SUBMISSION. HAVING CONSIDERED BOTH, I FIND THAT THE A.O. NOTICED THAT A SUM OF RS.1,50,00,000/- HAS BEEN INTRODUCED BY THE APPELLANT IN THE COMPANY M/S PHOENIX DEVCONPVT. LTD., AS PER PAGE NO .19 OF LPS-A/4. I AM NOT IN AGREEMENT WITH APPELLANTS A/R THIS PROPO SITION THAT PAGE NO.19 OF LPS-A/4 IS A DUMB DOCUMENT. THE SAID DOCUM ENT WAS SEIZED FROM THE PREMISES OF APPELLANTS MAIN GROUP COMPANY M/S PHOENIX DEVCONPVT. LTD. THEREFORE THE APPELLANTS A/R THIS ARGUMENT THAT THE SAID DOCUMENT WAS SEIZED FROM THIRD PARTY PREMISES IS OF NO CONSEQUENCE AND ALSO HAVING NO RELEVANCE ON THE ISS UE. AS THE APPELLANT IS ONE OF THE DIRECTOR OF THE SAID COMPAN Y AND THE APPELLANTS OWN SUBMISSION SUGGESTS THAT THE AFORESAID SUM OF R S.1,50,00,000/- WAS BROUGHT BY THE APPELLANT IN THE COMPANY M/S PHO ENIX DEVCONPVT. LTD. THUS, IT IS A FACT ON RECORD THAT THE APPELLAN T HAS ADMITTED THAT THE AFORESAID SUM WAS INTRODUCED IN THE AFORESAID COMPA NY ON BEHALF OF THE APPELLANT. AS THE PERUSAL OF THE APPELLANTS SU BMISSION SUGGESTS THAT THE SAID SUM WERE BROUGHT BY THE APPELLANT FRO M THREE DIFFERENT PERSONS NAMELY SHRI SATYAM KHANDELWAL, SMT. MANJUKH ANDELWAL AND M/S PARENTRIAL DRUGS LTD., AS THE APPELLANT HAS GIV EN THE DETAILS OF CHEQUE NO. AND ALSO THE DATE OF RECEIPT WHICH IS FA LLING DURING THE F.Y.- CHIRAG SHAH (SS)193 AND OTHERS 38 07-08. FURTHER TO THAT, THE APPELLANT HAS ALSO GIVE N PAN NO. OF ALL THESE THREE PERSONS IN WHOSE NAME THE AFORESAID SUM WAS B ROUGHT IN BY THE APPELLANT IN THE BOOKS OF ACCOUNTS OF M/S PHOENIX D EVCONPVT. LTD. THEREFORE AS THE IDENTITY AND THE MODE AS WELL AS T HE PAN NO. OF ALL THREE PERSONS HAVE BEEN GIVEN. THEREFORE IN MY CONS IDERED VIEW THE ADDITION MADE BY THE A.O. IN THE HANDS OF THE APPEL LANT IS NOT JUSTIFIED AND ACCORDINGLY THE ADDITION SO MADE BY THE A.O. IS DELETED. THUS, APPELLANTS THESE GROUNDS OF APPEAL ARE ALLOWED. 7.5 HOWEVER I CONSIDER IT PROPER AND APPROPRIATE TO DIR ECT THE A.O. TO INTIMATE THE A.O. OF ALL THESE THREE PERSONS, WH O HAVE INTRODUCED THE AFORESAID SUM OF RS.1,50,00,000/- IN THIS RESPE CT FOR NECESSARY ACTION AT HIS END. THE LD. AR HAS MADE ORAL AS WELL AS WRITTEN SUBMISS ION AS UNDER: I) IT IS SUBMITTED THAT THE ASSESSEE COULD BE ABLE TO ESTABLISH SATISFACTORILY THE NATURE AND SOURCES OF THE AMOUNT OF RS.1,50,00,000/- FOUND NOTED AT PAGE NO. 19 OF LPS- A/4 AGAINST HIS NAME. IT IS SUBMITTED THAT WHILE FRAMING THE AS SESSMENT IN THE CASE OF M/S. PHOENIX DEVCONSPVT. LTD. UNDER S.153A, A COMPANY BELONGING TO THE SEARCHED GROUP, THE AO COULD NOT F IND ANY ADVERSITY IN THE CREDITS WHICH WERE DULY RECORDED I N ITS BOOKS OF ACCOUNT. EVEN OTHERWISE, IT IS HUMBLY SUBMITTED THA T IN RESPECT OF THE CASH CREDITS FOUND IN THE BOOKS OF ACCOUNT OF M /S. PHOENIX DEVCONSPVT. LTD., ADDITION IF ANY, COULD BE MADE UN DER S. 68 OF CHIRAG SHAH (SS)193 AND OTHERS 39 THE ACT IN THE HANDS OF SUCH COMPANY ONLY AND NOT I N THE HANDS OF THE PROMOTERS OF THE COMPANY UNLESS AND UNTIL IT IS PROVED THAT SUCH CASH CREDITS WERE INVESTED BY THE PROMOTERS ON LY. IN THE PRESENT CASE, THREE ENTITIES VIZ. SHRI SATYAM KHAND ELWAL, SMT. MANJUKHANDELWAL AND M/S. PARENTIAL DRUGS LTD. RESPE CTIVELY MADE INVESTMENT AMOUNTING TO RS.25,00,000/-, RS.25, 00,000/- AND RS.1,00,00,000/- IN M/S. PHOENIX DEVCONSPVT. LT D. THROUGH ACCOUNT PAYEE CHEQUES AND THEREFORE, UNLESS AND UNT IL IT IS PROVED THAT THESE THREE ENTITIES WERE BENAMI OF THE ASSESS EE, NO ADDITION CAN BE LEGALLY MADE IN THE HANDS OF THE ASSESSEE. II) IT IS NOT THE CASE OF THE REVENUE THAT THE ASSE SSEE IS BENAMI OF THESE THREE ENTITIES. IN SUCH CIRCUMSTANCES, SINCE THE INVESTMENT OF RS.1,50,00,000/- IN M/S. PHOENIX DEVCONSPVT. LTD . WAS NOT MADE BY THE ASSESSEE AND THEREFORE, EVEN IF THE FRE SH EVIDENCES FILED BY THE ASSESSEE BEFORE THE CIT(A) FOR ESTABLI SHING THE GENUINENESS OF THE CASH CREDITS IN BOOKS OF THE ABO VE COMPANY ARE DISREGARDED UNDER RULE 46A OF THE I.T. RULES, 1 962, IT WOULD NOT ALTER THE POSITION. LD. DR HAS RELIED ON THE ORDER OF THE AO. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PAR TIES AND HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE CHIRAG SHAH (SS)193 AND OTHERS 40 FIND THAT ASSESSEE HAS EXPLAINED THAT THE SAID SUMS WERE BROUGHT BY THE ASSESSEE FROM THREE DIFFERENT PERSONS NAMELY SHRI SATYAM KHA NDELWAL, SMT. MANJUKHANDELWAL AND M/S PARENTRIAL DRUGS LTD. THE ASSESSEE HAS GIVE N THE DETAILS OF CHEQUE NO. AND ALSO THE DATE OF RECEIPT WHICH IS FALLING DURING TH E F.Y.-07-08. THE ASSESSEE HAS ALSO PROVIDED THE DETAILS OF PAN NO. OF ALL THESE THREE PERSONS IN WHOSE NAME THE AFORESAID SUM WAS BROUGHT IN BY THE ASSESSEE IN THE BOOKS OF ACCOUNTS OF M/S PHOENIX DEVCON PVT. LTD. THUS, THE IDENTITY AND MOD E AS WELL AS THE PAN NOS. OF ALL THREE PERSONS HAVE BEEN GIVEN. THEREFORE, LEARNED C IT(A) IS JUSTIFIED IN DELETING THE ADDITION. WE CONFIRM THE ORDER OF THE LEARNED CIT(A ) ON THIS GROUND. DEPARTMENTAL GROUND NO.5 THIS GROUND OF APPEAL IS GENERAL IN NATURE AND, THE REFORE, NO SEPARATE ADJUDICATION IS REQUIRED. A.Y. 2009-10 ASSESSEES APPEAL NO. : 194/IND/2013 DEPARTMENTALS APPEAL NO. : 246/IND/2013 ASSESSEES GROUND NO. 1(A) & 1(B) AND DEPARTMENTAL GROUND NO. 2 & 2.1 THESE GROUNDS OF APPEAL RELATE TO THE ADDITION OF R S.44,54,768/- MADE IN THE HANDS OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED INV ESTMENT IN CONSTRUCTION OF HOUSE AT 77, PATRAKAR COLONY, INDORE. CHIRAG SHAH (SS)193 AND OTHERS 41 THE FACTS, AS NOTED BY THE AO IN THE BODY OF THE AS SESSMENT ORDER, ARE THAT THE ASSESSEE, ALONG WITH HIS WIFE, SMT. SHWETA SHAH, MA DE CERTAIN INVESTMENTS IN A HOUSE JOINTLY OWNED BY BOTH OF THEM. THE AO, IN THE BODY OF THE ASSESSMENT ORDER, NOTED THAT THE ASSESSEE AND HIS WIFE HAVE JOINTLY SHOWN A N INVESTMENT OF RS.76,30,872/- ONLY OUT OF THEIR REGULAR SOURCES OF INCOME IN CONSTRUCT ION OF THE SAID HOUSE. THE INVESTMENT IN CONSTRUCTION OF THE HOUSE WAS SHOWN T O HAVE BEEN MADE BY THE ASSESSEE AND HIS WIFE IN THREE ASSESSMENT YEARS VIZ. A.Y. 20 08-09, A.Y. 2009-10 AND A.Y. 2010-11. THE AO, DURING THE COURSE OF THE ASSESSMEN T PROCEEDINGS, MADE A REFERENCE TO THE VALUATION OFFICER OF INCOME-TAX DEPARTMENT F OR DETERMINING THE COST OF CONSTRUCTION AND AS PER THE DVO, THE TOTAL COST OF CONSTRUCTION OF THE HOUSE WORKED AT RS.1,47,12,029/-. HOWEVER, AS PER THE VALUATION REP ORT, THE CONSTRUCTION EXPENSES WERE INCURRED ONLY IN TWO ASSESSMENT YEARS VIZ. A.Y . 2009-10 AND A.Y. 2010-11. THE AO FURTHER NOTED THAT OVER AND ABOVE THE DISCLOSED INVESTMENT OF RS.76,30,872/-, AS MADE BY THE ASSESSEE AND HIS WIFE OUT OF THEIR REGU LAR SOURCES, THE ASSESSEE HAD ALSO OFFERED AN ADDITIONAL INCOME OF RS.75,00,000/- IN T HE RETURN OF INCOME FOR A.Y. 2010- 11 FILED POST SEARCH ON ACCOUNT OF THE UNDISCLOSED INVESTMENT IN CONSTRUCTION OF THE HOUSE. HOWEVER, ON A YEAR TO YEAR COMPARISON, THE A O NOTICED THAT THE VALUATION OFFICER HAS DETERMINED THE COST OF CONSTRUCTION FOR THE ASSESSMENT YEAR UNDER CONSIDERATION AT A HIGHER SUM OF RS.79,31,255/- THA N THAT SHOWN BY THE ASSESSEE AND HIS WIFE AT RS.34,76,487/- FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. ON THIS BASIS, THE AO HELD THE AMOUNT OF DIFFERENCE I.E. OF RS.44, 54,768/- AS UNEXPLAINED INVESTMENT OF THE ASSESSEE IN CONSTRUCTION OF THE SAID HOUSE A ND MADE THE ADDITION IN THE CHIRAG SHAH (SS)193 AND OTHERS 42 ASSESSEES INCOME.THE RELEVANT FINDINGS OF THE ASSE SSING OFFICER ARE RECORDED AT PARA 4.1 TO PARA 4.5 FROM PAGE NO. 4 & 5 OF THE ASSESSME NT ORDER. MATTER CARRIED TO LD. CIT(A) AND LD. CIT(A), BY CON SIDERING THE SUBMISSION OF THE ASSESSEE, DELETED THE ADDITION OF RS.35,76,949/ - AND CONFIRMED THE ADDITION TO THE EXTENT OF RS.8,77,819/- AFTER HIS FINDINGS AT PARA 6.4, PAGE NO. 13 & 14 OF HIS ORDER, WHEREIN, AFTER CONSIDERING THE MATERIAL AVAILABLE O N RECORD, LD. CIT(A) HELD THAT THE PERUSAL OF RETURN OF INCOME AND COMPUTATION OF TOTA L INCOME OF A.Y. 2010-11 DOES NOT SUGGEST THAT ANY ADDITIONAL INCOME ON ACCOUNT OF UN EXPLAINED INVESTMENT IN THE CONSTRUCTION OF HOUSE HAS BEEN OFFERED BY THE ASSES SEE. LD. CIT(A) FURTHER HELD THAT DVO HAS WORKED OUT INVESTMENT TO THE EXTENT OF RS.7 9,31,255/-, HOWEVER, THE ASSESSING OFFICER HAS MENTIONED THE SAME AS RS.70,5 3,436/- IN ASSESSMENT ORDER AT PAGE NO.4. THUS, STILL THERE IS A DIFFERENCE OF RS. 8,77,819/- WHICH IS UNEXPLAINED INVESTMENT. ACCORDINGLY, LD. CIT(A) DELETED THE ADD ITION OF RS.35,76,949/- AND CONFIRMED THE ADDITION TO THE EXTENT OF RS.8,77,819 /- AGAINST THE ACTION OF THE LD. CIT(A) IN CONFIRMING THE ADDITION OF RS.8,77,819/- THE ASSESSEE IS IN FURTHER APPEAL BEFORE THIS BENCH WHEREAS AS AGAINST THE DELETION OF RS.35,76,949/-, THE REVENUE HAS PREFERRED A SEPARAT E APPEAL BEFORE THE BENCH. THE LD. AR HAS MADE ORAL AS WELL AS WRITTEN SUBMIS SION AS UNDER: I) IT IS SUBMITTED THAT THE ASSESSEE AND HIS WIFE N AMELY SMT. SHWETA SHAH HAVE JOINTLY SHOWN A HIGHER SUM OF INVESTMENT IN CONSTRUCTION OF HOUSE I.E. AT RS.1,51,30,872/- AS A GAINST THE SAME CHIRAG SHAH (SS)193 AND OTHERS 43 DETERMINED BY THE DVO AT RS.1,47,12,029/-. SUCH A C LAIM OF THE ASSESSEECAN VERY WELL BE VERIFIED FROM THE BODY OF THE ASSESSMENT ORDER ITSELF INASMUCH AS PER THE DETAILS GIVEN AT PARA 5.1, ACCORDING TO THE AO, THE ASSESSEE AND HIS WIFE HAVE JOINTLY SHOWN AN INVESTMENT AMOUNTING TO RS.76,30,872/- IN CONSTRUCTION OF HOUSE IN THREE ASSESSMENT YEARS OUT OF THEIR REG ULAR INCOME AND OTHERWISE DISCLOSED SOURCES ONLY. FROM THE PARA 4.4 OF THE ORDER, IT CAN BE OBSERVED THAT THE AO HIMSELF HAS A DMITTED THAT THE ASSESSEE, IN HIS RETURN OF INCOME, FOR A.Y. 201 0-11, HAS OFFERED ADDITIONAL INCOME OF RS.75,00,000/- ON ACCO UNT OF UNEXPLAINED INVESTMENT IN CONSTRUCTION OF THE HOUSE . THUS, ACCORDING TO THE AO HIMSELF, THE ASSESSEE AND HIS W IFE HAVE JOINTLY SHOWN AN INVESTMENT OF RS.1,51,30,872/- AND AS AGAINST SUCH INVESTMENT, THE DVO HAS MADE THE ESTIMATION AT A RELATIVELY LOWER LEVEL OF RS.1,47,12,029/- AS PER DETAILS GIVE N AT PARA 4.2 OF THE ASSESSMENT ORDER. THUS, IN TOTALITY, AFTER CONS IDERING THE DISCLOSED ADDITIONAL INCOME OF RS.75,00,000/-, THER E IS NO UNDERSTATEMENT OF TOTAL COST OF CONSTRUCTION OF THE HOUSE AS DECLARED BY THE ASSESSEE AND HIS WIFE. II) NOW, AS REGARD IN WHICH YEARS, THE CONSTRUCTION OF HOUSE WAS MADE, IT IS SUBMITTED THAT THE ASSESSEEHAS CLAIMED THE CONSTRUCTION OF HOUSE WAS COMMENCED BY HIM AND HIS WIFE CHIRAG SHAH (SS)193 AND OTHERS 44 DURING THE PREVIOUS YEAR 2007-08 RELEVANT TO A.Y. 2 008-09 ONLY AND THE SAME GOT COMPLETED DURING THE FINANCIAL YEA R2009-10 RELEVANT TO A.Y. 2010-11. IT IS FURTHER SUBMITTED T HAT DURING THE YEAR OF COMMENCEMENT OF CONSTRUCTION I.E. IN F.Y. 2 007-08 RELEVANT TO A.Y. 2008-09 THEY HAD JOINTLY INVESTED A SUM OF RS.33,04,385/- IN THE CONSTRUCTION OF HOUSE. IN CON TRAST, ACCORDING TO THE DVO AND AO, THE CONSTRUCTION OF TH E HOUSE WAS COMMENCED DURING F.Y. 2008-09 RELEVANT TO A.Y. 2009 -10 ONLY. III) IN ORDER TO ESTABLISH THE CLAIM OF COMMENCEMENT OF CONSTRUCTION DURING A.Y. 2008-09, THE ASSESSEEHAS F URNISHED COMPLETE DETAILS OF THE DATE-WISE EXPENDITURE INCUR RED ON THE CONSTRUCTION AND FROM SUCH DETAILS,IT CAN BE OBSERV ED THAT ALMOST ALL THE PAYMENTS HAVE BEEN MADE BY THE ASSES SEE THROUGH ACCOUNT PAYEE CHEQUES ONLY . IN SUCH A SITUATION, THERE IS ABSOLUTELY NO JUSTIFICATION FOR THE LEARNED AO F OR NOT ACCEPTING THE ASSESSEES CLAIM AS REGARD TO THE YEAR OF COMME NCEMENT OF CONSTRUCTION. IT IS SUBMITTED THAT UPTIL 31.3.2009, THE ASSESSEE AND HIS WIFE HAVE JOINTLY SHOWN INVESTMENT AGGREGATING TO RS.67,80,872/-. IV) IT IS SUBMITTED THAT THE DVO HAS WRONGLY TAKEN THE AMOUNT OF DECLARED COST OF CONSTRUCTION AT RS.57,95,924/- ONL Y FOR F.Y. CHIRAG SHAH (SS)193 AND OTHERS 45 2009-10. IT IS SUBMITTED THAT THE ASSESSEES WIFE S MT. SHWETA SHAH HAD SHOWN INVESTMENT AMOUNTING TO RS.8,50,000/ - DURING F.Y. 2009-10 [A.Y. 2010-11] OUT OF HER DISCLOSED SO URCES AND OVER AND ABOVE THAT THE ASSESSEE HAD DECLARED AN AD DITIONAL INCOME OF RS.75,00,000/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN CONSTRUCTION OF HOUSE. THUS, IN TOTALITY, THE AS SESSEE AND HIS WIFE HAD JOINTLY SHOWN AN INVESTMENT OF RS.83,50,00 0/- IN CONSTRUCTION OF HOUSE DURING F.Y. 2009-10 AS AGAINS T THE SAME TAKEN BY THE DVO AT RS.57,95,924/-. FURTHER, THE DV O HAS TAKEN THE TOTAL DECLARED COST OF CONSTRUCTION AT RS.1,25, 76,796/- ONLY WHEREAS AS DISCUSSED EARLIER, THE TOTAL COST OF CON STRUCTION DECLARED BY THE ASSESSEE AND HIS WIFE IS TO THE EXT ENT OF RS.1,51,30,872/-. HAD THE AO NOT COMMITTED SUCH APP ARENT FACTUAL ERRORS, AS PER THE AO, THE TOTAL AMOUNT OF COST OF CONSTRUCTION UPTIL 31.3.2009 WOULD HAVE ARRIVED AT RS.65,93,161/- ONLY AS AGAINST THE SAME ALREADY SHOWN BY THE ASSE SSEE AND HIS WIFE JOINTLY AT A HIGHER AMOUNT OF RS.67,80,872/- A S DISCUSSED IN PRECEDING PARA WITH THE RESULT THAT THERE COULD NOT HAVE BEEN ANY CASE FOR ANY UNDER STATEMENT OF COST OF CONSTRUCTIO N BY THE ASSESSEE AND HIS WIFE FOR ANY OF THE ASSESSMENT YEA RS. LD. DR HAS RELIED ON THE ORDER OF THE ASSESSING OFF ICER. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THE ASSESSEE ALONG CHIRAG SHAH (SS)193 AND OTHERS 46 WITH HIS WIFE SMT. SHWETA SHAH MADE INVESTMENT IN H OUSE JOINTLY OWNED BY BOTH OF THEM. ASSESSEE AND HIS WIFE JOINTLY MADE AN INVESTM ENT OF RS.76,30,872 OUT OF THEIR REGULAR SOURCE OF INCOME IN THE CONSTRUCTION OF THE SAID HOUSE. THE INVESTMENT IN THE CONSTRUCTION OF THE HOUSE WAS MADE BY ASSESSEE AND HIS WIFE IN A.YS. 2008-09, 2009- 10 & 2010-11. AS PER DVO REPORT, THE TOTAL COST OF THE CONSTRUCTION WAS ARRIVED AT 1,47,12,029/-. THE ASSESSEE HAS OFFERED ADDL. INCOM E OF RS.75 LACS IN THE CONSTRUCTION OF THE HOUSE IN RETURN OF INCOME FOR A.Y. 2010-11 F ILED POST SEARCH ON ACCOUNT OF UNDISCLOSED INVESTMENT IN THE CONSTRUCTION OF THE H OUSE. WE FIND THAT THERE IS DISPUTE BY THE ASSESSING OFFICER THAT SOME OF THE INVESTMEN T WAS NOT MADE IN THREE ASSESSMENT YEARS. AS PER THE DVO REPORT, THE ASSESS EE HAS MADE INVESTMENT IN 2009- 10 AND 2010-11 ONLY. BUT, ASSESSEE HIMSELF HAS SHOW N THE INVESTMENT IN CONSTRUCTION OF THE HOUSE AT RS.33,04,385/- FOR ASSESSMENT YEAR 2008-09, THEREFORE, CONSIDERING THE TOTALITY OF FACTS, WE ARE OF THE VIEW THAT THE ASS ESSEE HAS ALREADY OFFERED TOTAL COST OF CONSTRUCTION. THE LEARNED CIT(A) HAS DELETED THE AD DITION OF RS.35,76,949/-. WE ARE OF THE VIEW THAT LEARNED CIT(A) HAS CONSIDERING THE VALUATION REPORT AND HE HAS TAKEN FIGURE FROM ASSESSMENT YEAR 2010-11 ONLY AND DELETE D ONLY RS.35,76,949/-. WE AGREE WITH THE DELETION MADE BY THE LEARNED CIT(A) BUT WE DO NOT AGREE WITH THE FINDING OF THE LEARNED CIT(A) PARTLY AND WE MODIFY THE LEARNED CIT(A)S ORDER, CONSIDERING THE TOTALITY OF THE CASE, WE HOLD THAT THE TOTAL INVES TMENT OF HOUSE WORKED OUT TO RS.1,51,30,872 75,00,000 (ADDITIONALLY OFFERED) + 79,31,255 (ALREADY OFFERED IN REGULAR RETURN). THEREFORE, IN OUR OPINION, NO FURT HER ADDITION IS CALLED FOR. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED AND DEPAR TMENTAL APPEAL IS DISMISSED ON THIS GROUND. CHIRAG SHAH (SS)193 AND OTHERS 47 ASSESSEES GROUND NO. 2 AND DEPARTMENTAL GROUND NO. 3 TO 3.2 THESE GROUNDS OF APPEAL PERTAIN TO THE ADDITION OF RS.1,50,00,000/- MADE BY THE AO ON ACCOUNT OF ALLEGED UNACCOUNTED RECEIPTS M ADE BY THE ASSESSEE FROM M/S. PHOENIX DEVCONS PVT. LTD. THE FACTS RELATING TO THE GROUND, AS NOTED BY THE A O IN THE ASSESSMENT ORDER ARE THAT DURING THE COURSE OF THE SEARCH PROCEEDINGS IN THE GROUP, A LOOSE PAPER INVENTORIZED AS PAGE NO. 54 OF LPS A/4 WAS SEIZED F ROM THE PREMISES OF M/S. PHOENIX DEVCONS PVT. LTD. ACCORDING TO THE AO, SUCH LOOSE P APER CONTAINS DETAILED NOTE ON THE HAWALA OF RS.1,50,00,000/- BY THE ASSESSEE. THE REAFTER, THE AO REQUIRED THE ASSESSEE TO GIVE THE COMPLETE DETAILS OF THE ABOVE SAID NOTING WITH THE RELEVANT DOCUMENTS. IN REPLY, THE ASSESSEE SUBMITTED THAT NO SUCH HAWALA WAS EVER MADE OR RECEIVED AND THE LOOSE PAPER REFERRED IS ONLY A DUM B DOCUMENT. FINALLY, THE AO NOTED THAT SINCE THE ASSESSEE COULD NOT FURNISH ANY EXPLA NATION, THE AMOUNT OF RS.1,50,00,000/- HAS TO BE TREATED AS THE UNEXPLAIN ED INCOME OF THE ASSESSEE. ACCORDINGLY, THE AO MADE THE IMPUGNED ADDITION OF R S.1,50,00,000/-. THE RELEVANT FINDINGS OF THE AO ARE GIVEN FROM PARA 5.1 TO 5.3 A T PAGE NO. 6 OF THE ORDER. THE LD. CIT(A), AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE, DELETED THE ADDITION OF RS.1,50,00,000/- BUT MADE AN ADDITION O F RS.27,00,000/- BY ESTIMATING CHIRAG SHAH (SS)193 AND OTHERS 48 INTEREST INCOME FROM HAWALA OF RS.1,50,00,000/- GIV ING HIS FINDINGS AT PARA 7.4, PAGE NO. 20 OF HIS ORDER. 7.4 I HAVE CONSIDERED THE AOS ORDER AS WELL AS THE APP ELLANTS SUBMISSION. HAVING CONSIDERED BOTH, I FIND THAT THE APPELLANT HAS ANNEXED THE PAGE-54 OF LPS-A/17 ON PAGE NO.91 OF TH E PAPER BOOK. THE DESCRIPTION OF WHICH CLEARLY SUGGEST THAT INTER EST OF RS.27 LACS PAID AGAINST HAWALA OF 1.5 CR OF CHIRAG SIR. MR.CHIRAG S IR SIGNIFY MERELY THE APPELLANT AS THE PAGE-91 OF LPS-A/17 CONTAINED THE DIFFERENT DETAILS OF INDIRECT EXPENSES, WHICH APPEARS TO BE OF BUSINESS NATURE. EVEN THE FIGURES APPEARING IN THIS PAGE ARE OF DIFFERENT ODD NUMBERS, WHICH CLEARLY SUGGEST AND SIGNIFY THAT THE TRANSACTIONS N OTED THEREIN ARE INCURRED BY M/S PDPL. IN MY CONSIDERED VIEW THE REC EIPT OF INTEREST OF RS.27 LACS IS A INCOME IN THE HANDS OF THE APPELLAN T, WHICH IS EARNED ON HAWALA OF RS.1.6 CRORES. THUS, IN MY CONSIDERED VIE W IT WILL BE PROPER AND APPROPRIATE TO ADD RS.27 LACS AS UNEXPLAINED IN TEREST INCOME IN THE HANDS OF APPELLANT. ACCORDINGLY THE ADDITION MA DE BY A.O. IS CONFIRMED TO THE EXTENT OF RS.27 LACS. THUS, THESE GROUNDS OF APPEAL ARE PARTLY ALLOWED. AGAINST THE ABOVE ESTIMATION OF INTEREST INCOME AT RS.27,00,000/- BY THE LD. CIT(A), THE ASSESSEE IS IN FURTHER APPEAL BEFORE TH IS BENCH WHEREAS AS AGAINST DELETION OF RS.1,50,00,000/-, THE REVENUE HAS PREFERRED A SE PARATE APPEAL BEFORE THE BENCH. THE LD. AR HAS MADE ORAL AS WELL AS WRITTEN SUBMIS SION AS UNDER: I) IT IS SUBMITTED THAT MERELY BECAUSE THERE IS CER TAIN NOTING WITH THE WORDS INTEREST 27 LAC PAID AGT HAWALA OF 1.5 CR. OF CHIRAG SIR, IT CANNOT BE INFERRED THAT THE APPE LLANT CARRIED CHIRAG SHAH (SS)193 AND OTHERS 49 OUT ANY HAWALA TRANSACTION WITH ANY PERSON OR ENTIT Y. FROM SUCH DETAILS, THERE CANNOT BE DRAWN ANY PRESUMPTION THAT THE APPELLANT TOOK ANY HAWALA FOR OR FROM ANY PERSON. EVEN FROM S UCH DETAILS, IT CANNOT BE SAID THAT THE ALLEGED HAWALA WAS TAKEN BY THE APPELLANT ONLY DURING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION. II) DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS , IN REPLY TO THE SPECIFIC QUERY RAISED BY THE LEARNED AO, THE APPELL ANT HAD CATEGORICALLY DENIED TO HAVE MADE ANY SUCH TRANSACT ION OF HAWALATHROUGH A WRITTEN REPLY DATED 20-12-2011 [KIN DLY REFER PB PAGE NO.67]. III) IT IS SUBMITTED THAT FROM THE TERMINOLOGY OF INTEREST USED IN THE SUBJECT LOOSE PAPER, THERE CAN BE ONLY ONE INFERENC E THAT AMOUNT OF RS.27 LAKHS WAS PAID BY SOME PERSON, AS INTEREST , FOR AVAILING CERTAIN CREDIT FACILITY FROM SOME OTHER PERSON. THE FACT REMAINED THAT SUCH INTEREST OF RS.27 LAKHS WAS PAID BY M/S. PHOENIX DEVCONSPVT. LTD. TO SOME MR.SANDEEP JAIN WHO ACTED AS A MIDDLEMAN AND BROKER FOR PROCURING SOME LAND FOR CO LONY PROJECT OF M/S. PHOENIX DEVCONSPVT. LTD. IT IS SUBMITTED TH AT M/S. PHOENIX DEVCONSPVT. LTD. HAD PURCHASED CERTAIN AGRI CULTURAL LAND FROM CERTAIN FARMERS FOR THEIR COLONY PROJECT AND B EFORE MAKING PAYMENT OF FULL CONSIDERATION, M/S. PHOENIX DEVCONS PVT. LTD. HAD GOT SUCH LAND REGISTERED IN ITS NAME. THE SELLE RS OF THE LAND EXECUTED THE REGISTRIES IN FAVOUR OF THE COMPANY ON LY UPON TAKING HAWALA [GUARANTEE] BY SHRISANDEEP JAIN FOR THE REMA INING PAYMENT. THE AMOUNT FOR WHICH SHRISANDEEP JAIN STOO D AS A GUARANTOR WAS OF A SUM OF RS.150 LAKHS AND IN TURN, SHRISANDEEP JAIN HAD TAKEN GUARANTEE OF THE APPELLANT IN HIS CA PACITY OF ONE OF THE DIRECTORS OF M/S. PHOENIX DEVCONSPVT. LTD. IT W AS AGREED CHIRAG SHAH (SS)193 AND OTHERS 50 UPON BETWEEN ALL THE PARTIES THAT M/S. PHOENIX DEVC ONSPVT. LTD. SHALL PAY THE BALANCE CONSIDERATION ALONG WITH INTE REST ONLY. IV) TO DRIVE HOME THE ASSERTION MADE IN THE PRECEDI NG PARA, IT IS SUBMITTED THAT THE SUBJECT LOOSE PAPER I.E. LPS-A/1 7 PAGE NO.54, WAS FOUND AND SEIZED FROM THE BUSINESS PREMISES OF M/S. PHOENIX DEVCONSPVT. LTD., AS CONCEDED BY THE LEARNED AO HIM SELF, AT PARA 5.1 OF THE IMPUGNED ORDER AND THE LOOSE PAPER SO SE IZED HAS ITS RESEMBLANCE WITH PAGE NO.10 OF LPS-A/4. A COPY OF T HE PAGE NO.10 OF LPS-A/4 IS PLACED AT PAGE NO. 92 OF OUR PA PER BOOK. ON A PERUSAL OF THE ABOVE REFERRED PAGE NO.10, IT S HALL BE OBSERVED BY YOUR HONOURS THAT ON SUCH LOOSE PAPER T OO, THERE IS APPEARING ONE ITEM OF THE SAME AMOUNT OF RS.27 LAKH S, AT SNO.29, WITH THE NARRATION PAID AGT. INTEREST TO SANDEEP JAIN. IT THUS BECOMES EVIDENT THAT AMOUNT OF INTEREST WAS NOT PAID TO THE APPELLANT BUT ONLY TO SHRISANDEEP JAIN. AGAIN, FROM THE COPY OF LOOSE PAPER INVENTORI ZED AS LPS- A/4, PAGE NO.3, A COPY WHEREOF IS PLACED AT PAGE NO . 93, IT MAY BE OBSERVED BY YOUR HONOURS THAT IT CONTAINS THE DE TAILS OF PAYMENTS MADE BY M/S. PHOENIX DEVCONS LTD. TO VARIO US PERSONS AGAINST PURCHASE OF CERTAIN LAND FOR THEIR COLONY P ROJECT AND AT THE BOTTOM OF THE PAGE, THE SAME NARRATION I.E. INTERE ST PAID TO SHRI SANDEEP JAIN AT RS.27 LAKHS IS GETTING REF LECTED. IF THE LOOSE PAPERS FOUND AT PAGE NO. 3 OF LPS-A/4 IS READ IN CONJUNCTION WITH THE LOOSE PAPER FOUND AT PAGE NO.1 0 OF LPS- A/4, ONE CAN FIND THAT THERE IS SIMILARITY IN THESE TWO PAGES ONE AS REGARD TO THE PAYMENT OF STAMP DUTY OF RS.27,70,000 /- AND THE PAYMENT OF INTEREST OF RS.27,00,000/- TO SHRISANDEE P JAIN. NOW, AFTER HAVING NOTICED THESE SIMILARITIES, IT CAN BE SAFELY CONCLUDED THAT THE AMOUNT OF INTEREST OF RS.27 LAKHS WAS PAID BY M/S. PHOENIX DEVCONSPVT. LTD. ONLY TO SOME SHRISANDEEP J AIN AND NOT CHIRAG SHAH (SS)193 AND OTHERS 51 TO THE APPELLANT. SINCE THE LOOSE PAPER LPS-A/17, P AGE NO.54, RESEMBLES WITH THE LOOSE PAPER LPS-A/4, PAGE NO.10, AS AFORESAID, IT CAN BE INFERRED THAT THE NARRATION OF RS.27 LAKHS MENTIONED AT LPS-A/17, PAGE NO.54, ALSO PERTAINS TO THE PAYMENT OF INTEREST PAID TO SOME SHRISANDEEP JAIN AND NOT T O THE APPELLANT, AS ERRONEOUSLY INFERRED BY THE LEARNED A O. HERE, IT SHALL BE PERTINENT TO NOTE THAT WHILE PASSING ORDER OF ASSESSMENT UNDER S. 153A IN CASE OF M/S. PHOENIX DEVCONSPVT. L TD. FOR A.Y. 2008-09, THE SAME AO, AT PARA 8.6, HAS DULY CONSIDE RED THE PAYMENT OF INTEREST OF RS.27 LAKHS MADE BY M/S. PHO ENIX DEVCONSPVT. LTD. TO SHRISANDEEP JAIN. IT WOULD NOT BE OUT OF PLACE TO MENTION HERE THAT THE SAME AO MAKING SIMUL TANEOUS ASSESSMENT IN THE CASE OF M/S. PHOENIX DEVCONSPVT. LTD., HAS NOT TAKEN ANY ADVERSE VIEW IN RESPECT OF THE PRINCIPAL AMOUNT ON WHICH THE ABOVE SAID INTEREST OF RS.27 LAKHS WAS PA ID AND IT WAS A RIGHT APPROACH OF THE AO. IT IS FOR THE REASON TH AT WHILE FRAMING THE ASSESSMENT IN CASE OF M/S. PHOENIX DEVCONSPVT. LTD., THE AO FOUND THAT SUCH INTEREST WAS NOT ATTRIBUTABLE TO AN Y BORROWING BUT IT WAS WHOLLY RELATED TO THE DELAYED PAYMENT OF CON SIDERATION TO VARIOUS FARMERS FROM WHOM THE COMPANY HAD PURCHASED AGRICULTURAL LAND. IT IS SUBMITTED THAT SHRISANDEEP JAIN WAS A PERSON WHO ACTED AS A MIDDLEMAN BETWEEN THE ABOVE N AMED PHOENIX DEVCONSPVT. LTD. AND THE SELLERS OF THE LAN D AND AS SUBMITTED IN THE PRECEDING PARA, SHRISANDEEP JAIN H AD STOOD AS A GUARANTOR BEFORE THE SELLERS OF THE LAND FOR A SUM OF RS.150 LAKHS ON BEHALF OF M/S. PHOENIX DEVCONSPVT. LTD. SINCE, T HE APPELLANT GRANTED HIS COUNTER GUARANTEE TO SHRISANDEEP JAIN O N BEHALF OF M/S. PHOENIX DEVCONSPVT. LTD. PROBABLY IN THE NARRA TION AT PAGE NO.54 OF LPS-A/17, AS REFERRED TO BY THE LEARNED AO , THE NAME OF THE APPELLANT IS ALSO GETTING REFLECTED. IN NUTS HELL, THE APPELLANT NEITHER RECEIVED THE ALLEGED SUM OF RS.1,50,00,000/ - FROM ANY CHIRAG SHAH (SS)193 AND OTHERS 52 PERSON NOR PAID THE ALLEGED SUM TO ANY PERSON. THE APPELLANT ALSO DID NOT RECEIVE ANY SUM AS INTEREST EITHER FROM M/S . PHOENIX DEVCONSPVT. LTD. OR FROM ANY ONE ELSE. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, THE ADDITION OF RS.27,00,000/- SO CONFIRMED BY THE LEARNED CIT(A) B Y ALLEGING THE APPELLANT TO HAVE DERIVED THE INTEREST INCOME UNDER HAWALA BEING GROSSLY UNJUSTIFIED, UNWARRANTED AND ARBITRARY, DESERVES TO BE DELETED IN ITS ENTIRETY. THE LD. DR HAS RELIED ON THE ORDER OF THE ASSESSING OFFICER. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD. WE FIND THAT THE ASSESSEE HAS TAKEN THE CONTENTION THAT A LOOSE PAPER INVENTORISED AT PAGE NO.54 OF LPS A-4 WAS SEIZAED FROM PREMISES OF PHOENIX DEVCONS P. LTD. AS PER THE LOOSE PAPER CONTAINS HAWALA OF RS.1.5 CRORE BY THE ASSESSEE. THE ASSESSEE CONTENDED THAT HE HAS NOT MADE ANY HAWALA AND IT IS ONLY A DUMP DOCUMENT. WE ARE OF THE VIEW THAT ANY LOOSE PAPER FOUND FROM ASSESSEES PREMISES, IT IS PRESUMED THAT THE PAPER BELONGS TO THE ASSESSEE. THE ONUS IS ON THE A SSESSEE TO PROVE THAT IT IS MERELY A DUMP DOCUMENT AND NO INFERENCE CAN BE DRAWN ON THE BASIS OF THIS DOCUMENT. THE ASSESSEE HAS TAKEN THE CONTENTION BEFORE LEARNED CI T(A) THAT AS PER THE LOOSE PAPER, THERE WILL BE ONE INFERENCE THAT AMOUNT OF RS.27 LA CS WAS PAID BY SOME OTHER PERSON. THE FACT REMAINS THAT THE INTEREST OF RS.27 LACS WA S PAID BY PHOENIX DEVCONS P. LTD. TO SOME SANDEEP JAIN WHO HAS ACTED AS MIDDLEMAN FOR ACQUIRING THE LAND FOR PHOENIX DEVCONS P. LTD. THE SELLER OF THE LAND EXECUTED REG ISTRY IN FAVOUR OF COMPANY ONLY UPON TAKING HAWALA BY SHRI SANDEEP JAIN AND PHOENIX DEVCONS HAS PAID THIS AMOUNT CHIRAG SHAH (SS)193 AND OTHERS 53 ALONG WITH INTEREST BUT WE DO NOT AGREE WITH THE CO NTENTION OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE FAILED TO GIVE DOCUMENTARY EVIDENCE IN RESPECT OF SANDEEP JAIN THAT HE WAS GUARANTOR FOR PURCHASE OF LAND FOR PHOENIX DEVCONS P. LTD. THE LEARNED CIT(A) CONSIDERED THE DESCRIPTION OF HAWALA , HE WAS OF THE VIEW THAT INTEREST OF RS.27 LACS PAID AGAINST HAWALA OF RS.1.5 CRORES OF CHIRAG SHAH. CHIRAG SHAH SIGNIFIES MERELY ASSESSEE AS THE PAGE NO.91 OF LPS A-17 CONTAIN DIFFERENT DETAILS OF INDIRECT EXPENSES WHIYCH APPEARS TO BE BUSINESS NAT URE. THEREFORE, LEARNED CIT(A) HAS HELD THAT RS.27 LACS AS UNEXPLAINED INTEREST IN COME IN THE HANDS OF THE ASSESSEE. THE ADDITION WAS CONFIRMED UPTO RS.27 LACS ONLY AND RS.1.5 CRORES HAS BEEN DELETED BY THE LEARNED CIT(A). THEREFORE, OUR INTERFERENCE IS NOT CALLED. IN THE RESULT, ASSESSEES AS WELL AS DEPARTMENTAL APPEALS ARE DISM ISSED ON THIS GROUND. ASSESSEES GROUND NO. 3(A) &3(B) AND DEPARTMENTAL G ROUND NO. 4 TO 4.2 THESE GROUNDS OF APPEAL PERTAIN TO THE ESTIMATION O F BROKERAGE @4% BY THE LD. CIT(A) ON ADDITION OFRS.41,10,00,000/- MADE BY THE AO ON PROTECTIVE BASIS IN THE HANDS OF THE ASSESSEE ON ACCOUNT OF ALLEGED UNEXPLA INED INVESTMENT IN THE CERTAIN AGRICULTURAL LANDS SITUATED AT VILLAGE BHAURASLA, I NDORE. AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE, T HE LD. CIT(A) ESTIMATED THE BROKERAGE INCOME OF RS.9,07,340/- @4% BY FOLLOWING HIS OWN FINDINGS WHILE ADJUDICATING THE SIMILAR ISSUE IN THE CASE OF THE A SSESSEE FOR THE A.Y. 2008-09 . CHIRAG SHAH (SS)193 AND OTHERS 54 BOTHE THE SIDES SUBMITTED THAT THESE GROUNDS OF APP EAL ARE SIMILAR TO THAT OF GROUND NO. 2(A) & 2(B) AND GROUND NO. 3 TO 3.2 TAKE N BY THE ASSESSEE AND THE DEPARTMENT RESPECTIVELY IN THEIR APPEALS FOR A.Y. 2 008-09 (APPEAL NO. IT(SS)(A)- 193/IND/2013 AND IT(SS)(D)-245/IND/2013) AND THEREF ORE, OUR FINDING RECORDED IN RESPECT OF THE AFORESAID GROUNDS WILL ALSO PREVAIL IN THE PRESENT YEAR. WE FIND THAT FOR THIS YEAR, THE ASSESSEE HAS SHOWN BROKERAGE INCOME OF RS.35 LACS IN HIS RETURN FILED U/S 153A WHICH IS MUCH MORE THAN THE INCOME OF RS.9,07, 340/- ESTIMATED BY THE CIT(A) AND THEREFORE, NO SEPARATE ADDITION IS REQUIRED. WE DISMISS THE GROUNDS OF THE DEPARTMENT AND ALLOW THE APPEAL OF THE ASSESSEE ON THESE GROUNDS. ASSESSEES GROUND NO. 4(A) &4(B) THESE GROUNDS OF APPEAL RELATE TO THE ESTIMATION OF BROKERAGE @4% BY THE LD. CIT(A) ON ADDITION OFRS.33,00,000/- MADE BY THE AO, ON ACCOUNT OF CASH RECEIPTS FROM M/S. PHOENIX LEISURE & LIFESTYLE PVT. LTD.. THE BRIEF FACTS RELATING TO THE GROUND, AS NOTED BY THE AO IN THE BODY OF THE ASSESSMENT ORDER, ARE THAT SOME PAGE 1 OF LPS-A/1 C ONTAINS SOME DETAILS OF CASH PAID BY A COMPANY NAMED AS M/S. PHOENIX LEISURE & LIFEST YLES PVT. LTD. TO VARIOUS PERSONS. AS PER THE AO, THE ABOVENAMED COMPANY HAD MADE PAYMENT AGGREGATING TO RS.33,00,000/- TO THE ASSESSEE DURING THE RELEVANT PREVIOUS YEAR. ACCORDING TO THE AO, THE ABOVE COMPANY COULD NOT GIVE ANY SATISFACTORY R EPLY AS TO WHY THE ABOVE AMOUNT WAS PAID BY IT TO THE ASSESSEE. IN ABSENCE OF SUCH EXPLANATION, THE AO MADE AN CHIRAG SHAH (SS)193 AND OTHERS 55 ADDITION OF RS.33,00,000/- IN THE HANDS OF THE ABOV E NAMED COMPANY ON ACCOUNT OF UNEXPLAINED EXPENDITURE ON SUBSTANTIVE BASIS WITH A CORRESPONDING ADDITION IN THE HANDS OF ASSESSEE ON PROTECTIVE BASIS. MATTER CARRIED TO LD. CIT(A) AND LD. CIT(A), BY CON SIDERING THE SUBMISSION OF THE ASSESSEE, DELETED THE ADDITION OF RS.33,00,000/ - BUT MADE AN ADDITION OF RS.1,32,000/- BY ESTIMATING BROKERAGE @4% ON THE SU M OF RS.33,00,000/- IN RESPECT OF LAND DEAL AFTER GIVING HIS FINDINGS AT PARA 9.4, PAGE NO. 25 OF HIS ORDER. 9.4 I HAVE CONSIDERED THE AOS ORDER AS WELL AS THE APP ELLANTS A/R SUBMISSION. HAVING CONSIDERED BOTH, I FIND THAT THE A.O. HAS MADE THE ADDITION OF RS.33,00,000/- IN THE HANDS OF THE APPE LLANT ON PROTECTIVE BASIS. HOWEVER I FIND THAT THE ADDITION MADE BY THE A.O. IN THE HANDS OF M/S PHOENIX LEISURE & LIFESTYLE PVT. LTD. FOR A.Y.- 09-10 ON SUBSTANTIVE BASIS IS CONFIRMED BY ME. HENCE FURTHER ADDITION OF RS.33,00,000/- IN THE HANDS OF APPELLANT IS NOT JUSTIFIED AND CORRECT . EVEN IT IS SEEN THAT THE A.O. HAS NOWHERE ESTABLISHED THAT THE ENTIRE SU M OF RS.33,00,000/- WAS ACCUMULATED AND REMAINS WITH THE APPELLANT AS I NCOME. IN THIS PERSPECTIVE OF THE FACT, I DO NOT AGREE WITH THE A. O.S FINDINGS. BUT IT IS PERTINENT TO NOTE HERE THAT THE APPELLANT WAS WORKI NG AS A BROKER AND ACTIVELY PARTICIPATING IN LAND DEAL. FURTHER IT IS ALSO AN ADMITTED FACT THAT PAYMENT WAS MADE TO SHRI CHIRAG SHAH FOR PURCH ASE OF SOME LAND, HENCE BROKERAGE CHARGES FOR SUCH PURCHASE CANNOT BE RULED OUT. THUS, I CHIRAG SHAH (SS)193 AND OTHERS 56 CONSIDER IT PROPER AND APPROPRIATE TO HOLD THAT THE APPELLANT HAS MERELY ACTED AS A MEDIATOR/BROKER FOR SUCH PURCHASE OF LAND. IN VIEW OF THE SAME, I DIRECT THE A.O. TO ASSESS THE BROKERAGE INCOME ON SUBSTANTIVE BASIS IN THE HANDS OF THE APPELLANT @4% , WHICH IS PREVAILING RATE OF COMMISSION IN LAND DEALS ON ENTIRE SUM OF R S.33,00,000/- WHICH WILL COMES TO RS.1,32,000/-. THUS, THE ADDITION MAD E BY A.O. IS CONFIRMED TO THE EXTENT OF RS.1,32,000/-. ACCORDINGLY THIS GROUND OF APPEAL IS PARTLY ALLOWED. AGAINST THE ABOVE ESTIMATION OF BROKERAGE @4% BY TH E LD. CIT(A), THE ASSESSEE IS IN FURTHER APPEAL BEFORE THIS BENCH. THE LD. AR HAS MADE ORAL AS WELL AS WRITTEN SUBMIS SION AS UNDER: I) IT IS SUBMITTED THAT THE NATURE OF THE BUSINESS OF THE ASSESSEE IS THAT OF A REAL ESTATE BROKER AND COMMISSION AGENT O NLY AND IN THE SUBJECT LAND DEAL TOO HE WAS ONLY ACTING AS A COMMI SSION AGENT. II) IT IS SUBMITTED THAT THE ASSESSEE HAS BEEN SHOW ING INCOME FROM PROPERTY BROKERAGE IN HIS RETURN OF INCOME FOR MANY YEARS AND EVEN FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, T HE ASSESSEE HAS SHOWN A SUBSTANTIAL INCOME OF RS.35,00,000/- UN DER THE HEAD INCOME FROM BUSINESS OR PROFESSION. IT IS SUBMITT ED THAT THE BROKERAGE DERIVED BY THE ASSESSEE THROUGH THE SUBJE CT TRANSACTION CHIRAG SHAH (SS)193 AND OTHERS 57 OF LAND DEAL FOR M/S. PHOENIX LEISURE & LIFESTYLE P VT. LTD. IS DULY INCLUDED IN THE INCOME SHOWN BY HIM IN THE RET URN OF INCOME AT RS.35,00,000/- AND THEREFORE NO SEPARATE ADDITION ON THIS COUNT IS WARRANTED. THE LD. DR HAS RELIED ON THE ORDER OF THE ASSESSING OFFICER. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD. WE FIND THAT THAT THE LEARNED CIT(A) HAS DELETED THE ADDITION ON THE GROUND THAT THE ADDITION MADE BY THE A.O. IN THE HANDS OF M/S PHOEN IX LEISURE & LIFESTYLE PVT. LTD. FOR A.Y.-09-10 ON SUBSTANTIVE BASIS WAS CONFIRMED B Y HIM, HENCE FURTHER ADDITION OF RS.33,00,000/- IN THE HANDS OF ASSESSEE IS NOT JUST IFIED. LEARNED CIT(A) NOTED THAT THAT THE A.O. HAS NOWHERE ESTABLISHED THAT THE ENTI RE SUM OF RS.33,00,000/- WAS ACCUMULATED AND REMAINED WITH THE ASSESSEE BUT HAS GIVEN FINDING THAT THE ASSESSEE WAS WORKING AS A BROKER AND ACTIVELY PARTICIPATING IN LAND DEAL. AS PAYMENT WAS MADE TO SHRI CHIRAG SHAH FOR PURCHASE OF SOME LAND, HENCE BROKERAGE CHARGES FOR SUCH PURCHASE CANNOT BE RULED OUT. THUS, WE CONFIRM THE FINDING OF THE LEARNED CIT(A) THAT THE ASSESSEE HAS MERELY ACTED AS A MEDI ATOR/BROKER FOR SUCH PURCHASE OF LAND AND ALSO DIRECTION THEREOF TO THE A.O. TO ASSE SS THE BROKERAGE INCOME ON SUBSTANTIVE BASIS IN THE HANDS OF THE ASSESSEE @4%, WHICH IS PREVAILING RATE OF COMMISSION IN LAND DEALS ON ENTIRE SUM OF RS.33,00, 000/- WHICH WILL COMES TO RS.1,32,000/-. HOWEVER, WE FIND THAT THE ASSESSEE H AS ALREADY DISCLOSED BROKERAGE INCOME ON ESTIMATED BASIS AT RS.35 LACS IN HIS RETU RN OF INCOME AND THEREFORE, NO CHIRAG SHAH (SS)193 AND OTHERS 58 FURTHER ADDITION IS WARRANTED. ACCORDINGLY, THESE G ROUNDS OF THE APPEAL OF THE ASSESSEE ARE ALLOWED. ASSESSEES GROUND NO. 5(A) &5(B) AND DEPARTMENTAL G ROUND NO. 5 TO 5.2 THESE GROUNDS OF APPEAL PERTAIN TO THE ESTIMATION O F BROKERAGE @4% BY THE LD. CIT(A) ON ADDITION OFRS.60,00,000/- MADE BY THE AO IN THE HANDS OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED RECEIPT IN DEVGURADIA LAND. MATTER CARRIED TO LD. CIT(A) AND AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE, THE LD. CIT(A) ESTIMATED THE BROKERAGE IN COME @4% BY FOLLOWING HIS OWN FINDINGS WHILE ADJUDICATING THE SIMILAR ISSUE IN TH E CASE OF THE ASSESSEE FOR THE A.Y. 2008-09 . BOTH THE PARTIES SUBMITTED THAT THESE GROUNDS OF AP PEAL ARE SIMILAR TO THAT OF GROUND NO. 3(A) & 3(B) AND GROUND NO. 4 TO 4.2 TAKE N BY THE ASSESSEEEAND THE DEPARTMENT RESPECTIVELY IN THEIR APPEALS FOR A.Y. 2 008-09 (APPEAL NO. IT(SS)(A)- 193/IND/2013 AND IT(SS)(D)-245/IND/2013) AND THEREF ORE, OUR DECISION FOR THE A.Y. 2008-09 WILL ALSO PREVAIL IN THE PRESENT YEAR. BY F OLLOWING THE SAME, WE ALLOW GROUNDS OF APPEALS OF ASSESSEE AND DISMISS THE GROU NDS OF THE DEPARTMENT. DEPARTMENTAL GROUND NO. 1 THIS GROUND OF APPEAL OF THE DEPARTMENT IS AGAINST THE ACTION OF THE LD. CIT(A) IN DECIDING THE APPEAL AGAINST THE PRINCIPLES OF NA TURAL JUSTICE, WITHOUT AFFORDING ANY CHIRAG SHAH (SS)193 AND OTHERS 59 OPPORTUNITY TO THE AO OR REMANDING IT BACK IN VIOLA TION OF THE DEPARTMENTAL INSTRUCTION THAT IN SEARCH ASSESSMENTS APPEAL ORDER BE PASSED EITHER BASED ON REMAND REPORT OR AFTER HEARING THE AO. BOTH THE PARTIES SUBMITTED THAT THIS GROUND OF APPE AL IS SIMILAR TO THAT OF GROUND NO. 1 TAKEN BY THE DEPARTMENT IN ITS APPEAL FOR A.Y. 2008-09 (APPEAL NO. IT(SS)(D)-245/IND/2013) AND THEREFORE, OUR DECISION FOR THE A.Y. 2008-09 WILL ALSO PREVAIL IN THE PRESENT YEAR. BY FOLLOWING THE SAME, WE DISMISS THIS GROUND OF APPEAL OF THE REVENUE. DEPARTMENTAL GROUND NO.6 THIS GROUND OF APPEAL IS GENERAL IN NATURE AND, THE REFORE, NO SEPARATE ADJUDICATION IS REQUIRED. A.Y. 2010-11 ASSESSEES APPEAL NO. : 536/IND/2013 ASSESSEES GROUND NO. 1 THIS GROUND OF APPEAL RELATES TO THE ADDITION OF RS .41,92,025/- MADE BY THE AO, ON ACCOUNT OF UNEXPLAINED INVESTMENT IN JEWELLE RY OVER AND ABOVE THE UNEXPLAINED INVESTMENT OF RS.1,00,73,135/- ACCEPTED BY THE ASSESSEE HIMSELF. THE BRIEF FACTS RELATING TO THE GROUND ARE THAT THE AO NOTED THAT DURING THE COURSE OF THE SEARCH OPERATIONS IN THE VARIOUS PREM ISES AND LOCKERS OF THE ASSESSEE AND CHIRAG SHAH (SS)193 AND OTHERS 60 HIS FAMILY MEMBERS, JEWELLERIES OF WORTH OF RS1,58, 03,320/- WERE FOUND AND JEWELLERIES WORTH OF RS1,36,80,797/- WERE SEIZED. D URING THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS REQUIRED TO EXPLAIN T HE SOURCES OF INVESTMENT IN THE JEWELLERIES FOUND DURING THE COURSE OF SEARCH. THE ASSESSEE FURNISHED HIS EXPLANATION BEFORE THE AO AND REQUESTED THAT THE DESIRED CREDIT FOR THE JEWELLERIES FOUND SHOULD BE GIVEN IN ACCORDANCE WITH THE CBDT INSTRUCTION NO.19 16. THE ASSESSEE ALSO SOUGHT CREDIT FOR JEWELLERIES AND BULLION WHICH WERE PURCH ASED BY HIM IN THE FINANCIAL YEAR 1999-2000. HOWEVER, THE AO WAS OF THE VIEW THAT THE ENTIRE SEIZED JEWELLERY AS WELL AS 20% OF THE JEWELLERIES FOUND BUT NOT SEIZED SHOU LD BE REGARDED AS THE ASSESSEES UNEXPLAINED INVESTMENT IN JEWELLERIES. THE AO ALSO DID NOT GRANT ANY CREDIT FOR PURCHASES OF THE JEWELLERIES CLAIMED TO HAVE BEEN M ADE BY THE ASSESSEE DURING F.Y. 1999-2000. ACCORDINGLY, THE AO DETERMINED THE TOTAL AMOUNT OF UNEXPLAINED INVESTMENT IN JEWELLERIES AT RS.1,42,65,160/- [I.E. THE VALUE OF ENTIRE SEIZED JEWELLERY AMOUNTING TO RS.1,36,80,796 + 20% OF JEWELLERIES FO UND BUT NOT SEIZED]. THE AO, AFTER GIVING BENEFIT OF TELESCOPING OF INCOME DECLA RED BY THE ASSESSEE, TO THE EXTENT OF RS.1,00,73,135/-, MADE THE ADDITION OF RS.41,92,025 /- IN THE ASSESSEES INCOME ON ACCOUNT OF UNEXPLAINED INVESTMENT IN JEWELLERY. THE RELEVANT FINDINGS OF THE ASSESSING OFFICER ARE GIVEN FROM PARA 4.1 TO 4.20 AT PAGE NO. 4 TO 15 OF THE ASSESSMENT ORDER. MATTER CARRIED TO LD. CIT(A) AND LD. CIT(A), BY CON SIDERING THE SUBMISSION OF THE ASSESSEE, DELETED THE ADDITION OF RS.41,92,025/ - BY GIVING HIS FINDINGS AT PARA 6.4 OF HIS ORDER. HOWEVER, WHILE ADJUDICATING THE AFORE SAID GROUND, THE LD. CIT(A) DID NOT ALLOW THE CREDIT IN RESPECT OF THE PURCHASES OF JEW ELLERIES AND BULLION MADE BY THE CHIRAG SHAH (SS)193 AND OTHERS 61 ASSESSEE DURING THE PREVIOUS YEAR RELEVANT TO A.Y. 2000-01. FINDINGS OF THE LD. CIT(A) ARE AS UNDER: 6.4 I HAVE CONSIDERED THE AOS ORDER AS WELL AS THE APP ELLANTS SUBMISSION AND ALSO THE DOCUMENTS PLACED ON RECORD. IN MY CONSIDERED VIEW, I DO NOT FIND ANY SUBSTANCE IN THE AOS ACTIO N OF NOT ALLOWING CREDIT IN RESPECT OF STRIDHAN AND ANCESTRAL PROPE RTY IN ACCORDANCE WITH THE CBDT INSTRUCTION NO.1916 AND ACCORDINGLY RESTRI CTING IT ONLY TO THE EXTENT OF 80% OF THE JEWELLERIES FOUND BUT NOT SEIZ ED. HOWEVER I ALSO DO NOT FIND ANY SUBSTANCE IN THE APPELLANTS CLAIM AS REGARD TO PURCHASE OF JEWELLERIES IN THE FINANCIAL YEAR 1999-2000 FOR THE VARIOUS DISCREPANCIES IN THE BILLS PRODUCED AND JEWELLERIES ACTUALLY FOUND, AS NOTED BY THE AO. I FIND THAT FOR THE YEAR UNDER CON SIDERATION, THE APPELLANT HAS SHOWN AN ADDITIONAL INCOME OF RS.2,42 ,14,600/- AND AS AGAINST SUCH INCOME, THE BENEFIT OF TELESCOPING HAS BEEN GRANTED TO THE APPELLANT TO THE EXTENT OF RS.1,99,01,233/- ONLY I. E. RS.75,00,000/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN CONSTRUCTION O F HOUSE, RS.23,28,088/- ON ACCOUNT OF CASH FOUND DURING THE COURSE OF SEARCH AND REMAINING SUM OF RS.1,00,73,135/-, ON ACCOUNT O F UNEXPLAINED JEWELLERY. THUS, AFTER GIVING THE BENEFIT OF TELESC OPIC OF UNEXPLAINED INVESTMENT FOR THE YEAR AGAINST THE UNEXPLAINED INC OME OF RS.2,42,14,600/- DECLARED IN THE RETURN, THERE STIL L REMAINS A BALANCE OF RS.43,13,377/- FOR WHICH THE APPELLANT IS ELIGIBLE TO CLAIM SET-OFF FOR ANY CHIRAG SHAH (SS)193 AND OTHERS 62 OTHER UNEXPLAINED INVESTMENT. SINCE THE AMOUNT OF U NEXPLAINED INVESTMENT IN JEWELLERY DETERMINED BY THE AO AT RS. 41,92,025/- IS STILL ON A LOWER SIDE AGAINST THE APPELLANTS CLAIM OF SE T-OFF AT RS.43,13,388/- , HENCE IN MY CONSIDERED VIEW, EVEN IF THE ENTIRE U NEXPLAINED INVESTMENT IN JEWELLERY AS DETERMINED BY THE AO IS UPHELD, THERE WOULD NOT RESULT ANY ADDITION IN THE RETURNED INCOM E OF THE APPELLANT. ACCORDINGLY, I AM OF THE CONSIDERED VIEW THAT THE A .O. WAS NOT JUSTIFIED IN MAKING THE AFORESAID ADDITION TO THE INCOME OF T HE APPELLANT. THUS, THIS GROUND OF APPEAL IS ALLOWED. AGAINST THE ACTION OF THE LD. CIT(A) IN NOT CONSIDE RING THE PURCHASES OF JEWELLERIES DURING THE FINANCIAL YEAR RELEVANT TO A .Y. 2000-01, THE ASSESSEE IS IN FURTHER APPEAL BEFORE THIS BENCH. THE LD. AR HAS MADE ORAL AS WELL AS WRITTEN SUBMIS SION AS UNDER: I) IT IS SUBMITTED THAT THE LD. CIT(A) HAS DELETED THE ENTIRE ADDITION AMOUNTING TO RS.41,92,025/- MADE BY THE AO ON ACCOU NT OF UNEXPLAINED INVESTMENT IN JEWELLERIES ON THE GROUND THAT THE ASSESSEE HAD DULY DECLARED AN ADDITIONAL INCOME OF RS.2,42,14,600/- IN HIS RETURN OF INCOME FOR THE AS SESSMENT YEAR UNDER CONSIDERATION AND SUCH ADDITIONAL INCOME WAS SUFFICIENT TO COVER THE UNEXPLAINED INVESTMENT IN JEWELLERY DETER MINED BY THE CHIRAG SHAH (SS)193 AND OTHERS 63 AO. HOWEVER, ALTHOUGH THE CIT(A) HAS DELETED THE AD DITION BUT HE HAS IMPLIEDLY CONFIRMED THE QUANTIFICATION OF UN EXPLAINED INVESTMENT IN JEWELLERY AMOUNTING TO RS.41,92,025/- DETERMINED BY THE AO. IT IS SUBMITTED THAT WHILE DETERMINING T HE UNEXPLAINED INVESTMENT IN JEWELLERIES, THE AUTHORITIES BELOW HA VE NOT GIVEN CREDIT TO THE ASSESSEE IN RESPECT OF THE GOLD BULLI ONS AND JEWELLERIES PURCHASED BY THE ASSESSEE DURING THE PE RIOD FROM JULY 1999 TO OCTOBER 1999 RESPECTIVELY FOR A SUM OF RS.2 2,39,688/- AND RS.11,48,448/-. IT IS SUBMITTED THAT DURING THE COURSE OF THE SEARCH, NECESSARY PURCHASE BILLS EVIDENCING SUCH PU RCHASES WERE FOUND FROM THE SAME LOCKER WHEREFROM THE JEWELLERIE S WERE FOUND AND SEIZED. THE PURCHASE BILLS WERE ISSUED BY THE REGISTERED DEALERS OF JEWELLERIES AND THESE WERE SE RIALLY NUMBERED. IF THE CREDIT FOR SUCH PURCHASE BILLS WOU LD HAVE BEEN GIVEN, THERE WOULD NOT HAVE RESULTED ANY UNEXPLAINE D INVESTMENT IN JEWELLERY AS DETERMINED BY THE AO. THE LD. DR HAS RELIED ON THE ORDER OF THE ASSESSING OFFICER. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD. DURING THE SEARCH OPERATION IN THE VARIOUS PREMISES AND LOCKER OF THE ASSESSEE AND HIS FAMILY MEMBERS, THE JEWELLERY OF WORTH 15803320/- W ERE FOUND. THE ASSESSEE WAS REQUIRED TO EXPLAIN THE SOURCE OF SUCH INVESTMENT I N JEWELLERY. THE ASSESSING OFFICER GRANTED 20% OF THE JEWELLERY FOUND WAS NOT SEIZED, THEREFORE, THE CREDIT WAS GIVEN OF CHIRAG SHAH (SS)193 AND OTHERS 64 20% OF THE JEWELLERY. THE ASSESSING OFFICER WAS OF THE VIEW THAT ASSESSEE HAD ALREADY DECLARED RS.1,00,73,135/- AS ADDITIONAL INC OME, THEREFORE, AFTER GIVING THE CREDIT, THE ADDITION OF RS.41,92,025/- WAS MADE. TH E LEARNED CIT(A) HAS GIVEN CREDIT AND DELETED THE ENTIRE ADDITION ON THE GROUND THAT ASSESSEE HAS OFFERED ADDITIONAL INCOME OF RS.2,42,14,600/- INHIS RETURN OF INCOME F OR THE YEAR UNDER CONSIDERATION, THEREFORE, HE HAS DELETED THE ADDITION BUT AS PER T HE ASSESSEE, THE ASSESSEE HAS PURCHASED GOLD BULLIONS AND JEWELLERY DURING THE PE RIOD JULY 99 TO OCT. 99 FOR WHICH THE ASSESSEE HAS PRODUCED NECESSARY PURCHASE BILLS. THE ASSESSING OFFICER HAS NOT GIVEN CREDIT OF SUCH PURCHASE BILLS, THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE RESTORE THIS ISSUE OF ADDITIONAL JEWELLERY FOUND FR OM JULY 99 TO OCT. 99 FOR SUM OF RS.22,39,688/- AND RS.11,48,448/- TO THE FILE OF TH E ASSESSING OFFICER. THE ASSESSING OFFICER WILL VERIFY THE PURCHASE BILLS AND IF THE P URCHASE BILLS ARE RECORDED IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE, NECESSARY CREDIT MAY BE GIVEN, FAILING WHICH, THE ASSESSING OFFICER MAY MAINTAIN THE ADDITION CONFIRM ED BY THE CIT(A). IN RESULT, THIS GROUND OF THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ASSESSEES GROUND NO. 2 THIS GROUND OF APPEAL PERTAINS TO THE ADDITION OF R S.50,00,000/- MADE BY THE AO ON ACCOUNT OF ON ACCOUNT OF UNEXPLAINED CASH REC EIPTS MADE BY THE ASSESSEE AGAINST PARTNERSHIP IN SATELLITE CITY PROJECT. THE BRIEF FACTS RELATING TO THE GROUND ARE THAT THE AO, ON THE BASIS OF CERTAIN LOOSE PAPERS SEIZED AND INVENTORISED AS LPS-A/50 AT PAGE NO. 1, 24 & 35 FROM THE CHIRAG SHAH (SS)193 AND OTHERS 65 PREMISES OF M/S. PHOENIX DEVCONS PVT. LTD., IN WHIC H THE ASSESSEE IS ONE OF THE DIRECTORS, FOUND THAT SOME VOUCHERS CONTAIN DETAILS OF PAYMENTS HAVING BEEN MADE BY SHRI NILESH AJMERA TO THE ASSESSEE AGAINST THE PROJ ECT SATELLITE CITY. SUCH PROJECT, ACCORDING TO THE AO IS BEING DEVELOPED BY M/S. SATE LLITE CITY HOMES PVT. LTD. IN WHICH THE ASSESSEE IS A 50% SHAREHOLDER. THE AO ASK ED THE ASSESSEE TO FURNISH EXPLANATION IN RESPECT OF THE SUBJECT RECEIPTS BUT THE AO NOTED THAT IN ABSENCE OF ANY SATISFACTORY EXPLANATION FROM THE ASSESSEE IN THIS REGARD, THE SUBJECT RECEIPTS AGGREGATING TO RS.50,00,000/- HAVE TO BE REGARDED A S UNEXPLAINED INCOME OF THE ASSESSEE. ACCORDINGLY, THE AO MADE THE IMPUGNED ADD ITION. MATTER CARRIED TO LD. CIT(A) AND LD. CIT(A), AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE, CONFIRMED THE ADDITION TO THE EXTE NT OF RS.48,78,648/- GIVING HIS FINDINGS AT PARA 7.4, PAGE NO. 15 & 16 OF HIS ORDER , WHICH READ AS UNDER: 7.4 I HAVE CONSIDERED THE AOS ORDER AS WELL AS THE APP ELLANTS SUBMISSION. HAVING CONSIDERED BOTH, I FIND THAT THE A.O. HAS DISCUSSED THIS ISSUE IN DETAIL IN PARA-5 OF THE ORDER, WHEREI N HE TOOK NOTE OF LPS- A/50, WHEREIN THE DETAILS OF SUCH PAYMENTS WERE NOT ICED AND EVIDENT TO THE APPELLANT. THE A.O. HAS VERY CATEGORICALLY S TATED THAT THE AFORESAID SUM OF RS.50,00,000/- HAS BEEN RECEIVED B Y THE APPELLANT ON VARIOUS DTAES AS PER CASH VOUCHERS, WHEREIN DESCRIP TIVE NARRATION IS STATED. I FIND THAT THE A.O. HAS VERY METICULOUSLY DEALT THE ISSUE IN DETAIL TAKING NOTE OF APPELLANTS SUBMISSION DATED 11/11/11. HAVING CONSIDERED ALL THE FACTS AND SUBMISSION AVAILABLE O N RECORD, I AM IN CHIRAG SHAH (SS)193 AND OTHERS 66 AGREEMENT WITH THE A.O.S ACTION THAT THE AFORESAID SUM OF RS.50,00,000/-, WHICH IS RECEIVED BY THE APPELLANT FROM SHRI NILESH AJMERA FOR MAKING HIM PARTNER IN SATELLITE CITY PRO JECT. HENCE, IN MY CONSIDERED VIEW THE ADDITION MADE BY THE A.O. IS CO MPLETELY JUSTIFIED AND CORRECT. HOWEVER AS PER DETAILED DISCUSSION MAD E BY ME IN PARA- 6.4 OF THIS ORDER, THE APPELLANT IS LEFT WITH RS.1, 21,352/- ONLY OUT OF ITS UNDISCLOSED INCOME OFFERED AS ADDITIONAL INCOME AS PER RETURN OF INCOME FILED U/S 153A OF THE ACT. AS THE ENTIRE TEL ESCOPIC EFFECT HAS BEEN ALLOWED TO THE APPELLANT AS PER DETAILED DISCU SSION MADE IN PARA- 6.4 OF THIS ORDER, AS PER ENTIRE ADDITIONAL INCOME DISCLOSED. HENCE THE ADDITION MADE ON THIS ACCOUNT IS CONFIRMED TO THE E XTENT OF RS.48,78,648/- (RS.50,00,000 RS.1,21,352) ONLY. W ITH THIS OBSERVATION, APPELLANTS THIS GROUND OF APPEAL IS PARTLY ALLOWED . AGAINST THE ABOVE ACTION OF THE LD. CIT(A) IN CONFI RMING THE ADDITION TO THE EXTENT OF RS.48,78,648/-, THE ASSESSEE IS IN FURTHE R APPEAL BEFORE THIS BENCH. THE LD. AR HAS MADE ORAL AS WELL AS WRITTEN SUBMISS ION AS UNDER: I) FROM THE VARIOUS LOOSE PAPERS INVENTORIZED AS PART OF LPS-50 AS SEIZED FROM THE PREMISES OF M/S. PHOENIX DEVCONS PV T. LTD., IN WHICH THE ASSESSEE WAS ONE OF THE DIRECTORS, IT IS EVIDENT THAT DURING THE RELEVANT PREVIOUS YEAR, THE ASSESSEE HAD RECEIVED THREE PAYMENTS AMOUNTING TO RS.11,00,000/-, RS.30,00,000/ - AND CHIRAG SHAH (SS)193 AND OTHERS 67 RS.9,00,000/- AGGREGATING TO RS.50,00,000/- AGAINST PARTNERSHIP IN SOME PROJECT SATELLITE CITY. IT IS SUBMITTED THA T SUCH SUM WAS RECEIVED BY THE ASSESSEE AS A MEDIATOR FROM M/S. PH OENIX DEVCONS PVT. LTD. AND DUE TO NON-MATURITY OF THE DE AL, THE ENTIRE SUM WAS REFUNDED BACK. EVEN IF SUCH RECEIPT IS CONS IDERED AS AN INCOME THEN THE SAME SHOULD BE REGARDED AS COVERED BY THE POST- SEARCH ADDITIONAL INCOME OF RS.2,42,14,600/- SHOWN BY THE ASSESSEE IN HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. FROM THE COPY OF THE RETURN OF INCOM E OF THE ASSESSEE PLACED AT PAGE NO. 12 AND 13 OF THE PAPER BOOK, IT CAN BE OBSERVED THAT THE ASSESSEE HAS FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION SHOWING INC OME OF RS.2,43,58,938/- WHICH IS INCLUSIVE OF THE AFORESAI D ADDITIONAL INCOME OF RS.2,42,14,600/-. IT IS SUBMITTED THAT IT IS NOT THE CASE OF THE REVENUE THAT THE ADDITIONAL INCOME OF RS.2,4 2,14,600/- WAS DERIVED BY THE ASSESSEE FROM SOME OTHER DEFINITE SO URCES AND IT WAS NOT INCLUSIVE OF THE SUM OF RS.50,00,000/- AS C LAIMED BY THE ASSESSEE. IN NUTSHELL, SINCE THE ASSESSEE HIMSELF H AS SHOWN A HIGHER INCOME, IN HIS RETURN OF INCOME, NO SEPARATE ADDITION ON THIS COUNT IS WARRANTED. THE LD. DR HAS RELIED ON THE ORDER OF THE ASSESSING OFFICER. CHIRAG SHAH (SS)193 AND OTHERS 68 WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD. FROM THE VARIOUS LOOSE PAPERS INVENTORISED AS PART OF LPS-50 AS SEIZED FROM PREMISES OF PHONEIX DEVCONS P. LTD. IN WHICH THE AS SESSEE WAS ONE OF THE DIRECTORS. THE ASSESSEE HAS RECEIVED THREE PAYMENTS TOTALLING TO RS.50 LACS AGAINST THE PARTNERSHIP FIRM IN SOME PROJECT SATELLITE CITY. TH E ASSESSEE HAS TAKEN THE CONTENTION THAT THE ASSESSEE HAS RECEIVED THIS AMOUNT AS MEDIA TOR FROM PHONEIX DEVCONS P. LTD. BUT DUE TO NON-MATURITY OF THE DEAL, THE ENTIRE SUM WAS REFUNDED BACK. THE ASSESSEE DID NOT PRODUCE ANY DOCUMENTARY EVIDENCE BEFORE US TO SHOW THAT ASSESSEE HAS RETURNED THIS RS.50 LACS BACK TO THE M/S. PHOENIX D EVCONS P. LTD., THEREFORE, THIS CONTENTION OF THE ASSESSEE CANNOT BE ACCEPTED. THE ASSESSEE HAS TAKEN THE SECOND CONTENTION THAT HE HAS OFFERED ADDITIONAL INCOME OF RS.2,42,14,600/- IN HIS RETURN OF INCOME, THEREFORE, IF THE ASSESSEE HAS ADDITIONAL I NCOME WHICH COVERS RS.50 LACS THEN NECESSARY CREDIT MUST BE GIVEN TO THE ASSESSEE AND NO SEPARATE ADDITION WOULD BE REQUIRED. WE ORDER ACCORDINGLY. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 18.5.201 6. SD/- SD/- (B.C. MEENA) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 18.5.2016 COPY TO: APPELLANT/RESPONDENT/CIT(A)/CIT/DR, INDORE