ITO, Ward-23(2), V. Neena Jolly,

ITSSA 328/DEL/2003

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 3580 (ITAT-DELHI)
• Duration Of Justice: 14 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 08-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 18-07-2017
• Assessment Year: misc
• Appeal Filed On: 19-06-2003
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARAMITA TRIPATHY
• Keywords: Unexplained cash credit; Unexplained investment; Gift; Income from undisclosed sources; Search and seizure; Document seized; Principle of natural justice; Question of law; Tangible material; Valuation report; Block assessment; Documents seized
• Section: 143(3); 131; 68; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F, NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE, JUDICIAL MEMBER IT(SS)A NO.134/DEL/2003 BLOCK PERIOD : 01.04.1987 TO 03.09.1997 SMT. NEENA JOLLY, S-23, GREATER KAILASH-II, NEW DELHI. VS. JCIT, SPL. RANGE- 20, NEW DELHI. PAN : AALPJ5939J (APPELLANT) (RESPONDENT) IT(SS)A NO.328/DEL/2003 BLOCK PERIOD : 01.04.1987 TO 03.09.1997 ITO, WARD- 23(2), NEW DELHI. VS. SMT. NEENA JOLLY, S-23, GREATER KAILASH-II, NEW DELHI. PAN : AALPJ5939J (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAJ KUMAR GUPTA, SHRI SUMIT GOEL, CAS DEPARTMENT BY : SMT. PARAMITA TRIPATHY, CIT(DR) DATE OF HEARING : 11-10-2018 DATE OF PRONOUNCEMENT : 08-01-2018 O R D E R PER R. K. PANDA, AM : IT(SS)A NO.134/DEL/2003 FILED BY THE ASSESSEE AND I T(SS)A NO.328/DEL/2003 FILED BY THE REVENUE ARE CROSS-APPE ALS. THE FIRST ONE IS FILED BY THE ASSESSEE AND THE SECOND ONE FILED BY THE REV ENUE AND ARE DIRECTED AGAINST 2 IT(SS)A NO.134/DEL/2003 IT(SS)A NO.328/DEL/2003 THE ORDER DATED 10.01.2003 OF CIT(A)- XV, NEW DELHI RELATING TO BLOCK PERIOD 01.04.1987 TO 03.09.1997. FOR THE SAKE OF CONVENIE NCE THE APPEAL FILED BY THE ASSESSEE AS WELL AS THE REVENUE ARE DISPOSED OF BY THIS COMMON ORDER. 2. GROUND NO.1 OF ASSESSEE WAS NOT PRESSED BY THE L D. COUNSEL FOR THE ASSESSEE FOR WHICH LD. DR HAS NO OBJECTION. ACCORD INGLY, THE SAME IS DISMISSED AS NOT PRESSED. 3. GROUND NO.2 BY THE ASSESSEE AND GROUND NO.1 BY T HE REVENUE RELATE TO PART RELIEF GRANTED BY THE LD. CIT(A) BY DELETING T HE ADDITION OF RS.75,000/- OUT OF RS.1,08,024/- MADE BY THE ASSESSING OFFICER ON A CCOUNT OF UNEXPLAINED JEWELLERY. 4. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS AN INDIVIDUAL AND IS A PARTNER IN M/S SACI CHEM, A FIRM MANUFACTURING ACID SLURRY, A RAW MATERIAL SUPPLIED TO FENA LTD. AND SACI ALLIED PRODUCTS LIMI TED. A SEARCH OPERATION U/S 132 WAS CONDUCTED AT THE RESIDENTIAL PREMISES OF TH E ASSESSEE ON 03.09.1997. IN RESPONSE TO NOTICE U/S 158BC, THE ASSESSEE FILED HE R RETURN OF INCOME ON 17.08.1998 DECLARING AN AMOUNT OF RS.5,00,000/- AS INCOME FROM UNDISCLOSED SOURCES FOR ASSESSMENT YEAR 1997-98 AND OFFERED FOR TAXATION. DURING THE COURSE OF SEARCH AND SEIZURE OPERATION AT HER RESID ENCE AT S-23, GK II, NEW DELHI JEWELLERY VALUED AT RS.62,996/- WAS FOUND. S IMILARLY FROM HER BANK LOCKER NO.813 WITH CENTRAL BANK OF INDIA, GK II, JE WELLERY VALUED AT 3 IT(SS)A NO.134/DEL/2003 IT(SS)A NO.328/DEL/2003 RS.2,75,028/- WAS FOUND. DURING THE COURSE OF ASSE SSMENT PROCEEDINGS, THE ASSESSING OFFICER ASKED THE ASSESSEE REGARDING THE ACQUISITION OF JEWELLERY THAT WERE FOUND FROM HER RESIDENCE AND FROM HER BANK LOC KER. IT WAS EXPLAINED BY THE ASSESSEE THAT JEWELLERY VALUED AT RS.1.55 LAKHS BELONGS TO HER TWO MINOR DAUGHTERS AND SHE ALSO CONFIRMED THAT HER JEWELLERY HAS BEEN SHOWN IN HER WEALTH TAX RETURN. 4.1 THE ASSESSING OFFICER ACCEPTED THE EXPLANATION OF THE ASSESSEE REGARDING THE OWNERSHIP OF JEWELLERY SHOWN IN THE WEALTH TAX RETURN. HOWEVER, HE DID NOT ACCEPT THE EXPLANATION OFFERED REGARDING THE BALANC E JEWELLERY FOUND AT THE RESIDENCE AND IN THE LOCKERS. HE FURTHER OBSERVED FROM THE ANALYSIS OF THE SEIZED MATERIAL THAT IN THE BACK PAGE OF 32 A SMALL PAPER IS ATTACHED INDICATING PURCHASE OF JEWELLERY WEIGHTING 627.30 GMS. FURTHE R, ON THE REVERSAL OF THIS PAGE INDICATION OF ADVANCE PAYMENT WAS MADE BY WRIT ING AS FOLLOWS PD RS.30.0 ON 28.08.1997. THE ASSESSING OFFICER THER EFORE INFERRED THAT RS.30,000/- HAS BEEN PAID AS ADVANCE FOR PURCHASE O F JEWELLERY. HE, THEREFORE, TREATED RS.30,000/- AS UNACCOUNTED INVESTMENT IN JE WELLERY. THUS, THE ASSESSING OFFICER MADE TOTAL ADDITION OF RS.1,83,02 4/- AND RS.30,000/- RESPECTIVELY IN ASSESSMENT YEAR 1998-99. 5. BEFORE LD. CIT(A), IT WAS EXPLAINED THAT DURING THE COURSE OF SEARCH AS WELL AS DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS EXPLAINED THAT THE 4 IT(SS)A NO.134/DEL/2003 IT(SS)A NO.328/DEL/2003 ENTIRE JEWELLERY FOUND WAS BELONGING TO HER AND TO HER TWO MINOR DAUGHTERS AGED 10 AND 7 RESPECTIVELY. THE ACCUMULATION OF JE WELLERY BY THE DAUGHTERS WAS ON CEREMONIAL AND AUSPICIOUS OCCASIONS. IT IS NOT UNCOMMON IN HINDU FAMILIES FOR CHILDREN TO RECEIVE GIFTS OF JEWELLERY FROM RELATIONS AND FRIENDS ON SUCH OCCASIONS. THE CBDT INSTRUCTION WAS ALSO BROU GHT TO THE NOTICE OF THE LD. CIT(A) WHICH DIRECTS THE OFFICERS TO GIVE CREDIT FO R JEWELLERY OF 500 GRMS IN THE CASE OF MARRIED LADIES AND 250 GMS IN THE CASE OF U NMARRIED GIRLS AS NORMAL HOLDINGS OF JEWELLERY. 5.1 SO FAR AS ADDITION OF RS.30,000/- IS CONCERNED, IT WAS SUBMITTED THAT THE SAME IS BASED ON CONJECTURES AND NO OTHER CORROBORA TING EVIDENCE WAS FOUND DURING THE COURSE OF SEARCH WHICH COULD SUGGEST THA T THE NOTINGS ON THE PAPER REPRESENTED A PAYMENT MADE BY THE ASSESSEE. IT WAS EXPLAINED THAT IT IS POSSIBLE THAT THE PAPER HAD BEEN LEFT AT THE ASSESSEES RESI DENCE BY SOME OTHER PERSON AND MERE DISCOVERY OF THE PAPER DOES NOT AMOUNT TO PROV E THAT IT PERTAINS TO THE ASSESSEE. 6. HOWEVER, LD. CIT(A) WAS NOT FULLY SATISFIED WITH THE EXPLANATION GIVEN BY THE ASSESSEE. HE OBSERVED THAT THERE IS NO EVIDENC E IN SUPPORT OF HER CONTENTION THAT JEWELLERY VALUED AT RS.1.83 LAKHS HAD BEEN REC EIVED AS GIFTS BY HER DAUGHTERS ON VARIOUS OCCASIONS. FURTHER, THE ASSES SEE, WHO IS A MARRIED LADY, ADMITTEDLY POSSESSES JEWELLERY WORTH RS.1,55,000/- ONLY. CONSIDERING THIS TO BE 5 IT(SS)A NO.134/DEL/2003 IT(SS)A NO.328/DEL/2003 AN INDICATION OF NORMAL FAMILY PRACTICES, IT IS DIF FICULT TO BELIEVE THAT THE ASSESSEES DAUGHTERS HAD RECEIVED GIFTS IN EXCESS O F THE TOTAL HOLDING OF THEIR MOTHER. 7. SO FAR AS INSTRUCTION OF CBDT RELIED UPON BY THE ASSESSEE IS CONCERNED, LD. CIT(A) HELD THAT THIS IS ONLY RELATED TO SEIZUR E OF JEWELLERY AND IS INTENDED TO AVOID HARDSHIPS CAUSED BY SEIZURE OF THE ENTIRE AMO UNT OF JEWELLERY FOUND IN SEARCH. THE INSTRUCTION DOES NOT STATE THAT 250 GM S OF JEWELLERY HELD BY AN UNMARRIED GIRL SHOULD BE ACCEPTED AS EXPLAINED. CO NSIDERING THE TOTALITY OF THE FACTS OF THE CASE, LD. CIT(A) ESTIMATED THE JEWELLE RY VALUED AT RS.75,000/- AS REPRESENTING GIFTS RECEIVED BY THE TWO MINOR DAUGHT ERS AS FAIR AND REASONABLE AND THE BALANCE AMOUNT OF RS.1,08,024/- WAS HELD BY HIM TO BE JEWELLERY BELONGING TO HER AND NOT EXPLAINED BY HER. HE ACCO RDINGLY CONFIRMED THE ADDITION OF RS.1,08,024/- OUT OF RS.1,83,000/- MADE BY THE ASSESSING OFFICER. 8. SO FAR AS THE ADDITION OF RS.30,000/- IS CONCERN ED, HE OBSERVED THAT NOTINGS MADE ON THE PAPER RELATES TO PURCHASE OF JE WELLERY OF RS.627.30 GMS AND NOTING WHICH INDICATES PAYMENT OF RS.30,000/- W HICH IS A TYPICAL NOTING MADE BY THE JEWELERS AS A NORMAL PRACTICE. FURTHER , THE PAPER WAS FOUND FROM THE PREMISES OF THE ASSESSEE AND THE DATE OF PAYMEN T IS JUST SIX DAYS PRIOR TO THE DATE OF SEARCH. ACCORDING TO HIM, IT IS HIGHLY PRO BABLE THAT THE ASSESSEE HAD PLACED AN ORDER FOR PURCHASE OF JEWELLERY AND HAD M ADE THE ADVANCE PAYMENT OF 6 IT(SS)A NO.134/DEL/2003 IT(SS)A NO.328/DEL/2003 RS.30,000/- AND THE PAPER WAS KEPT BY HER IN ORDER TO TAKE DELIVERY OF THE JEWELLERY. HE, THEREFORE, UPHELD THE ACTION OF THE ASSESSING OFFICER IN MAKING ADDITION OF RS.30,000/- BEING PAID BY THE ASSESSEE AS ADVANCE FOR PURCHASE OF JEWELLERY. 9. AGGRIEVED WITH SUCH PART RELIEF BY THE CIT(A), T HE ASSESSEE AS WELL AS THE REVENUE ARE IN APPEAL BEFORE THE TRIBUNAL. 10. LD. COUNSEL FOR THE ASSESSEE STRONGLY CHALLENGE D THE ADDITION SUSTAINED BY THE LD. CIT(A). REFERRING TO THE VALUATION REPORT, COPIES OF WHICH ARE PLACED AT PAGE 15-16 AND 28-29 OF THE PAPER BOOK, HE SUBMITTE D THAT THE LARGE NUMBER OF ITEMS ARE OF VERY SMALL VALUE, WHICH PROVES THAT TH E SAME ARE OF GIFT IN NATURE. HE SUBMITTED THAT JEWELLERY PER DAUGHTER, CALCULATE S ONLY 195.850 GMS WHICH IS LESS THAN 250.00 GMS. RELYING ON VARIOUS DECISIONS , HE SUBMITTED THAT THE JEWELLERY TO THE EXTENT COVERED BY CBDT INSTRUCTION SHOULD BE ACCEPTED AS EXPLAINED. 11. SO FAR AS ADDITION OF RS.30,000/- ON THE BASIS OF SLIP FOUND IS CONCERNED, HE SUBMITTED THAT NO QUERY WAS RAISED DURING THE SE ARCH REGARDING THE SLIP FOUND FROM THE RESIDENCE WHICH CONTAINS WEIGHT 627.309 GM S AND ON THE BACK PD RS.30,000/- ON 20.08.1997. REFERRING TO THE EXPLA NATION FURNISHED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDING S, HE SUBMITTED THAT ASSESSEE HAS DENIED TO HAVE MADE SUCH INVESTMENT/PA YMENT. NO CORROBORATIVE 7 IT(SS)A NO.134/DEL/2003 IT(SS)A NO.328/DEL/2003 EVIDENCE TO ESTABLISH ADVANCE PAYMENT FOR JEWELLERY WAS FOUND. THERE WAS ALSO ABSOLUTELY NO BASIS GIVEN FOR DECIPHERING THE FIGUR E 30.0 AS RS.30,000/- AND PD AS FOR ADVANCE PAYMENT FOR JEWELLERY. FURTHER, THE SLIP WAS NOT IN THE HAND WRITING OF THE ASSESSEE OR ANY OF THE FAMILY MEMBER . HE SUBMITTED THAT HAD IT BEEN IN WRITING OF JEWELER THEN THE NOTING SHOULD H AVE BEEN ON FRONT AND NOT ON BACK AND FURTHER THE NOTING SHOULD HAVE BEEN AS REC EIVED RD AND NOT AS PD. HE SUBMITTED THAT THE ASSESSEE HAS NEVER PURCHASED ANY SUCH JEWELLERY AND THERE IS NO BASIS FOR HOLDING THE SAME AS BELONGING TO ASSES SEE. HE FURTHER SUBMITTED THAT IN ANY CASE JEWELLERY ISSUE HAS ALREADY BEEN C ONSIDERED AND ADDITION MADE. THEREFORE, NO MORE ADDITION SHOULD BE MADE ON ACCOU NT OF THIS NOTING. HE ALTERNATIVELY SUBMITTED THAT IT SHOULD BE TELESCOPE D WITH ADDITIONS, IF ANY, SUSTAINED FOR JEWELLERY FOUND. HE ALSO RELIED ON T HE DECISIONS IN THE CASE OF CIT VS. GIRISH CHOUDHARY REPORTED IN 163 TAXMANN.COM 60 8 AND CIT VS. S.M. AGGARWAL REPORTED IN (2007) 162 TAXMANN.COM 3. 12. LD. DR ON THE OTHER HAND HEAVILY RELIED ON THE ORDER OF THE ASSESSING OFFICER. HE SUBMITTED THAT THE ASSESSING OFFICER H AS ACCEPTED THE JEWELLERY DECLARED BY THE ASSESSEE IN HER WEALTH TAX RETURN A ND THE BALANCE JEWELLERY FOUND FROM THE RESIDENCE AS WELL AS THE LOCKER WAS RIGHTLY ADDED BY THE ASSESSING OFFICER AS THE UNDISCLOSED INCOME OF THE ASSESSEE. SO FAR AS ADDITION OF RS.30,000/- IS CONCERNED, HE SUBMITTED THAT THE SLIP WAS FOUND FROM THE 8 IT(SS)A NO.134/DEL/2003 IT(SS)A NO.328/DEL/2003 RESIDENCE OF THE ASSESSEE. THEREFORE, IT CANNOT BE SAID THAT THE SOMEBODY HAS LEFT THIS SLIP IN THE HOUSE OF THE ASSESSEE. HE AC CORDINGLY SUBMITTED THAT THE ORDER OF THE ASSESSING OFFICER BE UPHELD AND THE RE LIEF GRANTED BY THE LD. CIT(A) SHOULD BE REVERSED. 13. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE LD. CIT (A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. FROM THE DETAILS FILED BY THE ASSESSEE IN THE PAPER BOOK RELATING TO JEWELLERY, THE FOLLOWING PICTURE EMERGES :- JEWELLERY FOUND :- AMOUNT (RS.) WEIGHT (IN GMS.) FROM 2,75,028/- 582.700 LOCKER 62,996 140.000 RESIDENCE TOTAL 3,38,024 722.700 LESS- 1,55,000/- 331.00 (PROPORTIONATE) ACCEPTED BY AO OF AS DECL ARED IN WT RETURN BAL. IN DISPUTE 1,83,024/- 391.700 CLAIMED OF 2 MINOR DAUGHTERS AGED 7 & 10 YRS. 14. FROM THE ABOVE DETAILS, WE FIND THAT OUT OF 722 .700 GMS. FOUND FROM THE RESIDENCE AS WELL AS LOCKER OF THE ASSESSEE, THE AS SESSING OFFICER HAS ACCEPTED 331.00 GMS. OF JEWELLERY AS EXPLAINED WHICH IS AS P ER THE WEALTH TAX RETURN. THE ASSESSING OFFICER MADE ADDITION OF RS.1,83,024/- BE ING THE VALUE OF 391.700 GMS. AS UNEXPLAINED INVESTMENT IN GOLD AND JEWELLER Y. WE FIND THE LD. CIT(A) ACCEPTED THE JEWELLERY VALUED AT RS.75,000/- ON EST IMATE BASIS OF TWO DAUGHTERS. 9 IT(SS)A NO.134/DEL/2003 IT(SS)A NO.328/DEL/2003 IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASS ESSEE THAT IN VIEW OF THE CBDT INSTRUCTION, THE BALANCE JEWELLERY, WHICH HAS BEEN ADDED BY THE ASSESSING OFFICER AND PARTLY SUSTAINED BY THE LD. CIT(A), SHO ULD BE FULLY DELETED. IT IS THE SUBMISSION OF THE LD. DR THAT ONLY JEWELLERY SHOWN IN THE WEALTH TAX RETURN SHOULD BE ACCEPTED AS EXPLAINED. SINCE THE ASSESSI NG OFFICER HAS ALREADY GIVEN CREDIT FOR THE JEWELLERY SHOWN IN THE WEALTH TAX RE TURN, THEREFORE, NO FURTHER RELIEFS SHOULD BE GRANTED. 15. IT IS AN ADMITTED FACT THAT THE ASSESSEE WAS FI LING WEALTH TAX RETURN AND HAS DECLARED JEWELLERY BEING 331 GMS. VALUED AT RS.1,55 ,000/- IN HER WEALTH TAX RETURN. THE CBDT INSTRUCTION RELIED ON BY THE LD. COUNSEL FOR THE ASSESSEE CANNOT BE ACCEPTED, IN THIS PARTICULAR CASE, SINCE THE MOTHER HERSELF HAD DECLARED ONLY 330.00 GMS. AS BELONGING TO HER. AS PER THE S AID INSTRUCTION JEWELLERY UPTO 500 GMS. PER MARRIED LADY AND 250 GMS. FOR UNMARRIE D LADY NEED NOT BE SEIZED. SINCE THE MOTHER HERSELF IS ONLY HOLDING 330.00 GMS . AS DECLARED IN HER WEALTH TAX RETURN THEREFORE IT WILL NOT BE JUSTIFIED IN TH E INSTANT CASE TO ACCEPT THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE TO A CCEPT THE BALANCE JEWELLERY AS BELONGING TO THE TWO MINOR DAUGHTERS. HOWEVER, SOM E CREDIT HAS TO BE GIVEN TOWARDS THE JEWELLERY BEING RELATABLE TO THE UNMARR IED DAUGHTERS BEING CUSTOMARY GIFT RECEIVED ON VARIOUS OCCASIONS. CONS IDERING THE TOTALITY OF THE FACTS OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT JEWELLERY VALUED AT 10 IT(SS)A NO.134/DEL/2003 IT(SS)A NO.328/DEL/2003 RS.1,50,000/- FOR THE TWO DAUGHTERS CAN REASONABLY BE ACCEPTED AS JEWELLERY BELONGING TO THEM. THE BALANCE AMOUNT OF RS.33,024 /- IS SUSTAINED AS UNEXPLAINED JEWELLERY IN THE HANDS OF THE ASSESSEE. 16. SO FAR AS SLIP CONTAINING RS.30,000/- RECOVERED FROM THE RESIDENCE OF THE ASSESSEE IS CONCERNED, IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE NEVER PURCHASED ANY SUCH JEWELLERY AND THERE IS NO BASIS FOR HOLDING THE SAME AS BELONGING TO THE ASSESSEE. IT IS HIS ALTERNATE CONTENTION THAT IT SHOULD BE TELESCOPED WITH ADDITIONS, IF ANY, SUS TAINED FOR JEWELLERY FOUND. IT IS AN ADMITTED FACT THAT THE SLIP WAS FOUND FROM TH E RESIDENCE OF THE ASSESSEE AND IT IS FOR THE ASSESSEE WHO SHOULD EXPLAIN THE CONTE NTS OF THE SAME. IT CANNOT BE ARGUED THAT THE SLIP WAS LEFT BY SOMEBODY ELSE. SI NCE THE SLIP WAS FOUND FROM THE RESIDENCE OF THE ASSESSEE AND NO PLAUSIBLE EXPL ANATION HAS BEEN GIVEN REGARDING THE SOURCE OF SUCH PAYMENT THEREFORE WE D O NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A) SUSTAINING THE ADDITION. A CCORDINGLY, THE SAME IS UPHELD. GROUND NO.1 BY THE REVENUE IS ACCORDINGLY D ISMISSED AND GROUND NO.2 BY THE ASSESSEE IS PARTLY ALLOWED. 17. GROUND NO.3 RELATES TO LEVY OF INTEREST U/S 158 BFA OF THE I.T. ACT. 18. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSES SING OFFICER LEVIED INTEREST U/S 158BFA ON THE GROUND THAT THE ASSESSEE FAILED T O FILE HER RETURN OF INCOME IN TIME. LD. CIT(A) UPHELD THE ACTION OF THE ASSESSIN G OFFICER IN CHARGING INTEREST 11 IT(SS)A NO.134/DEL/2003 IT(SS)A NO.328/DEL/2003 U/S 158BFA ON THE GROUND THAT THE SAME IS MANDATORY AND CANNOT BE WAIVED EVEN IN WHERE THE DELAY IN FILING OF THE RETURN WAS NOT INTENTIONAL. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE DELAY IN FILING OF THE RETURN WAS ON ACCOUNT OF NOT GETTING THE SEIZED PAP ERS AND THE RETURN WAS FILED WITHIN ABOUT ONE MONTH GETTING THE SEIZED PAPERS. HE SUBMITTED THAT THE SEARCH WAS CONDUCTED ON 03.09.1997 AND THE NOTICE U/S 158B C DATED 30.03.1998 WAS ISSUED FOR FILING OF THE RETURN WITHIN 20 DAYS I.E. UPTO 20.04.1998. THE SEIZED MATERIAL REQUIRED FOR FILING RETURN WERE GIVEN IN F IRST WEEK OF JULY, 1998. THEREFORE, THE ASSESSEE SOUGHT EXTENSION OF FILING OF THE RETURN ON THE GROUND OF NON-RECEIPT OF SEIZED MATERIAL AND REQUEST FOR EXTE NSIONS WERE NEVER REJECTED. RELYING ON VARIOUS DECISIONS, HE SUBMITTED THAT THE INTEREST U/S 158BFA IS TO BE LEVIED IF DELAY IS ATTRIBUTABLE TO THE ASSESSEE. I N CASE THE DELAY IS NOT ATTRIBUTABLE TO THE ASSESSEE, THEN INTEREST U/S 158BFA SHOULD NO T BE LEVIED. SINCE IN THE INSTANT CASE THE DELAY WAS DUE TO NON-RECEIPT OF TH E COPIES OF THE SEIZED MATERIAL, THEREFORE, NO INTEREST U/S 158BFA SHOULD BE LEVIED. FOR THE ABOVE PROPOSITIONS, HE RELIED ON THE FOLLOWING DECISIONS :- (A) MANOJ AGGARWAL VS. DCIT, 113 ITD 377. (B) CIT VS. MESCO AIRLINES LTD. 327 ITR 554. (C) RATI RAM GOTEWALA VS. DCIT, 89 ITD 14. (D) MESCO AIRLINES LTD. VS. ACIT, 327 ITR 554. (E) MAHAVIR MANAKCHAND BHANSALI VS. CIT, 154 DTR 1 85. 12 IT(SS)A NO.134/DEL/2003 IT(SS)A NO.328/DEL/2003 19. LD. DR ON THE OTHER HAND HEAVILY RELIED ON THE ORDER OF THE LD. CIT(A). HE SUBMITTED THAT THE LEVY OF INTEREST U/S 158BFA I S MANDATORY AND CONSEQUENTIAL IN NATURE. IF THE ASSESSEE FAILS TO FILE THE RETURN WITHIN THE STIPULATED PERIOD THEN LEVY OF SUCH INTEREST IS MAN DATORY. 20. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. WE FIND THE ASSESSEE IN THE INSTANT CASE FILED HER RETURN OF INCOME ON 17.08.1998 AS AGAINST 20.04.199 8 AS REQUIRED BY THE ASSESSING OFFICER AS PER NOTICE U/S 158BC. IN VIEW OF DELAY IN FILING OF THE RETURN, THE ASSESSING OFFICER LEVIED INTEREST U/S 1 58BFA(1) WHICH HAS BEEN UPHELD BY THE LD. CIT(A). IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE DELAY ON ACCOUNT OF NOT GETTING THE SEIZED PAPERS SHOULD BE EXCLUDED FOR CALCULATING INTEREST U/S 158BFA(1). FROM THE DETAI LS FURNISHED BY THE LD. COUNSEL FOR THE ASSESSEE, WE FIND THE SEIZED PAPERS WERE GIVEN TO THE ASSESSEE ON 16.07.1998 AND THEREAFTER THE ASSESSEE FILED THE RE TURN ON 17.08.1998. THE DELHI SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF MANOJ AGGARWAL (SUPRA) HAS HELD THAT THE ASSESSEE HAVING FLIED THE RETURN FOR BLOCK PERIOD WITHIN 30 DAYS OF BEING PROVIDED WITH THE PROCEEDINGS OF THE SEIZED D OCUMENTS, LEVY OF INTEREST U/S 158BFA(1) IS NOT JUSTIFIED. THE MUMBAI BENCH O F THE TRIBUNAL IN THE CASE OF MAHAVIR MANAKCHAND BHANSALI (SUPRA) HAS HELD THA T DELAY IS CERTAINLY 13 IT(SS)A NO.134/DEL/2003 IT(SS)A NO.328/DEL/2003 ATTRIBUTABLE TO THE LATE GIVING OF INSPECTION OF TH E SEIZED DOCUMENTS ON THE PART OF THE REVENUE AND THEREFORE INTEREST FOR THE DELAY IN FILING THE RETURN OF INCOME HAS TO BE COMPUTED AFTER EXCLUDING THE PERIOD FROM THE DATE THE INSPECTION OF SEIZED DOCUMENTS WAS ASKED FOR I.E. 24 TH MAY, 2001 TILL THE INSPECTION WAS GIVEN I.E. 03 RD JANUARY, 2002. THE HONBLE DELHI HIGH COURT IN TH E CASE OF CIT VS. MESCO AIRLINES LTD. (SUPRA) HAS HELD THAT THE TIME TAKEN BY THE DEPARTMENT TO SUPPLY DOCUMENTS TO BE EXCLUDED FROM THE TOTAL PERI OD. THE TOTAL TIME TAKEN BY THE ASSESSEE FROM THE DAY OF SERVICE OF NOTICE U/S 158BC TILL THE FILING OF THE RETURN IS TAKEN INTO CONSIDERATION AND FROM THIS PE RIOD, THE TIME WHICH IS TAKEN BY THE DEPARTMENT IN SUPPLYING THE DOCUMENTS HAS TO BE EXCLUDED. IN THIS MANNER, IF THE PERIOD EXCEEDS 45 DAYS, THE ASSESSEE WOULD BE LIABLE TO PAY THE INTEREST BEYOND THE PERIOD OF 45 DAYS. IN THE INST ANT CASE, WE FIND THE ASSESSEE WAS SERVED THE NOTICE U/S 158BC ON 30.03.1998 REQUI RING THE ASSESSEE TO FILE THE RETURN WITHIN 20 DAYS. THE ASSESSEE FILED HER RETU RN OF INCOME ON 17.08.1998. THE SEIZED MATERIAL REQUIRED FOR FILING RETURN WAS GIVEN ONLY IN THE FIRST WEEK OF JULY AS STATED BY LD. COUNSEL FOR THE ASSESSEE. TH E EXACT DATE IS NOT MENTIONED. WE, THEREFORE, RESTORE THIS MATTER TO THE FILE OF T HE ASSESSING OFFICER WITH THE DIRECTION TO VERIFY FROM THE RECORDS THE EXACT DATE OF THE APPLICATION FILED BY THE ASSESSEE FOR OBTAINING SEIZED MATERIAL AND THE EXAC T DATE OF PROVIDING OF SEIZED MATERIAL TO THE ASSESSEE AND CALCULATE THE INTEREST IN THE LIGHT OF THE DECISION OF 14 IT(SS)A NO.134/DEL/2003 IT(SS)A NO.328/DEL/2003 THE JURISDICTIONAL HIGH COURT IN THE CASE OF MESCO AIRLINES LTD. (SUPRA). THE GROUND RAISED BY THE ASSESSEE ON THIS ISSUE IS ACCO RDINGLY ALLOWED FOR STATISTICAL PURPOSES. 21. GROUND NO.2 BY THE REVENUE RELATES TO THE ORDER OF THE LD. CIT(A) IN DELETING THE ADDITION OF RS.20,00,000/- ON ACCOUNT OF GIFT AND RS2,00,000/- FOR COMMISSION FOR TAKING SUCH HAWALA GIFT. 22. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSES SING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS OBSERVED THAT DURING THE SEARCH AND SEIZURE, SOME PAPERS WERE FOUND WHICH SHOWS THAT THE JOLLY FAMILY HAD TAKEN GIFTS OF 1,30,00,000/- IN THE NAME OF VARIOUS PERSONS FROM O NE DR. DP PARWAL DURING THE PERIOD NOVEMBER, 1990 TO MARCH, 1994. SINCE THE AM OUNT OF GIFTS CLAIMED TO BE GIVEN BY DR. DP PARWAL WERE OF HUGE AMOUNTS (TOT AL RS.1.30 CRORES) AND OUTSIDE THE IMMUNITY PERIOD, ENQUIRIES WERE INITIAT ED TO VERIFY THE GENUINENESS OF THE SAME. THE INVESTIGATION WING OF THE INCOME TAX DEPARTMENT WAS REQUESTED TO RECORD THE STATEMENT OF DR. PARWAL AS AT THAT TIME HE WAS RESIDING AT 24, SANGRAM COLONY, JAIPUR. THE ADIT IN HIS REPORT STATED THAT THE CLAIM OF DR. PARWAL THAT HE IS CLOSE FRIEND OF JOLLY FAMILY AND THE GIFTS WERE DUE TO CLOSE FRIENDSHIP IS DOUBTFUL. IN HIS STATEMENT RECORDED ON OATH ON 22.09.1997, DR. PARWAL HAD STATED THAT HE KNOWS TWO PERSONS I.E. ON E JOLLY AND OTHER PRADEEP. HE WAS NOT AWARE WHAT IS THE SURNAME OF PRADEEP, WH AT THEIR OCCUPATION ETC. 15 IT(SS)A NO.134/DEL/2003 IT(SS)A NO.328/DEL/2003 HE HAD NEVER VISITED THEM AT THEIR RESIDENCE. DR. PARWAL BELIEVES THAT BOTH JOLLY AND PRADEEP ARE REAL BROTHERS BUT WHO IS YOUNGER OR ELDER, HE DID NOT KNOW. HE HAD FURTHER STATED THAT HE DOES NOT REMEMBER THE NA ME OF ANY OTHER FAMILY MEMBER OF JOLLY AND PRADEEP. HE HAD CATEGORICALLY DENIED KNOWING THE NAME OF THE FATHER, MOTHER, WIFE AND CHILDREN OF JOLLY A ND PRADEEP. HE HAD MET THESE TWO PERSONS THROUGH SHRI R.N. LAKHOTIA AND HIS SON SHRI SUBHASH LAKHOTIA WHO ARE RESIDENTS OF DELHI AND ARE ADVOCATE AND CA BY P ROFESSION. DR. PARWAL HAD FURTHER STATED THAT BOTH JOLLY AND PRADEEP WEAR SPE CTACLES, BUT WOULD NOT TELL WHETHER THEY KEEP BEARD OR MOUSTACHES. HE COULD NO T SAY WHETHER JOLLY IS THE SURNAME OR FIRST NAME. TO A SPECIFIC QUERY, AS TO WHETHER HE HAS VISITED JOLLY AND PRADEEP AT THEIR RESIDENCE OR THEY HAVE VISITED DR. PARWAL AT ANY TIME, HE ANSWERED IN NEGATIVE THOUGH HE WAS INVITED TO DO SO WHENEVER HE VISITED LAKHOTIAS. IN VIEW OF THE STATEMENT GIVEN BY THE D R. PARWAL TO THE INVESTIGATION WING, THE ASSESSING OFFICER HELD THAT GIFT RECEIVED FROM DR. PARWAL IS BOGUS. THE ASSESSING OFFICER ACCORDINGLY MADE ADDITION OF RS.20,00,000/- ON ACCOUNT OF SUCH GIFT. HE FURTHER MADE ADDITION OF RS.2,00, 000/- ON ESTIMATE BASIS BEING HAWALA COMMISSION PAID TO DR. PARWAL @ 10% OF THE G IFT PURCHASED. 23. IN APPEAL, THE LD. CIT(A) DELETED THE ADDITION MADE BY THE ASSESSING OFFICER ON THE GROUND THAT THE ASSESSING OFFICER DI D NOT HAVE SUFFICIENT EVIDENCE TO HOLD THAT THE GIFTS OF RS.20,00,000/- R ECEIVED BY THE ASSESSEE, WERE 16 IT(SS)A NO.134/DEL/2003 IT(SS)A NO.328/DEL/2003 RECEIVED AGAINST CONSIDERATION AND REPRESENTED UNAC COUNTED INCOME OF THE ASSESSEE. SINCE IT HAS NOT BEEN ESTABLISHED THAT T HE GIFTS WERE HAWALA TRANSACTION ADDITION MADE BY THE ASSESSING OFFICER OF RS.2,00,000/- ON ACCOUNT OF COMMISSION PAID FOR ARRANGING SUCH HAWALA TRANSA CTION WAS ALSO DELETED BY THE LD. CIT(A). 24. AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A), TH E REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 25. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW. WE FI ND IDENTICAL ISSUE HAD COME UP BEFORE THE TRIBUNAL IN THE CASE OF ACIT VS. MR. DALIP JOLLY IN ITA NO.153/DEL/2003 ORDER DATED 17.10.2008 WE FIND THE TRIBUNAL HAS THOROUGHLY DISCUSSED THE ISSUE AND THE APPEAL FILED BY THE REV ENUE ON THIS ISSUE WAS DISMISSED. THE RELEVANT OBSERVATION OF THE TRIBUNA L READS AS UNDER :- 6. THE NEXT GROUND OF APPEAL IS AGAINST DELETION O F ADDITION IN RESPECT OF GIFTS RECEIVED FROM DR. D.P. PARWAL. THE ASSESSING OFFICE R NOTED THAT DR. PARWAL IS LIVING IN HONG KONG. HE HAS STATED TO HAVE GIVEN GIFTS TO VARIOUS FAMILY MEMBERS OF ASSESSEE. APART FROM GIFTS TO DALIP JOLLY, HUF, PRA DEEP JOLLY, KL JOLLY & SONS, GIFTS WERE GIVEN TO OTHER FAMILY MEMBERS TOTALING TO RS.1 30 LACS. THE ASSESSEE RECEIVED GIFTS OF RS.20 LACS WHEREAS HIS MINOR SON VARUN JOL LY AND ROHAN JOLLY HAVE RECEIVED GIFT OF RS5 LAC EACH. THE ASSESSING OFFICER ALSO NO TED THAT ADDL. DIT (INV.) JAIPUR RECORDED THE STATEMENT OF DR. PARWAL. IN THE COURSE OF THIS EXAMINATION, DR. PARWAL DID NOT KNOW ALL THE FAMILY MEMBERS OF JOLLY FAMILY , HE WAS-NOT AWARE OF THE SURNAME OF PRADEEP OR REGARDING HIS OCCUPATION. HE ALSO DID NOT KNOW WHO AMONGST THE TWO ELDER BROTHERS ARE , HE EVEN DID NOT KNOW THE NAMES OF FATHER, MOTHER, W IVES AND CHILDREN OF JOLLY AND PRADEEP. HE WAS NOT AWARE ABO UT WHETHER JOLLY AND PRADEEP KEEP BEARD OR MUSTACHE. THUS, ON THE BASIS OF STATE MENT OF DR. PARWAL AS RECORDED BY ADIT (INV.II), JAIPUR, THE ASSESSING OFFICER HELD T HAT THE GIFT FROM THE DR. PARWAL IS BOGUS. THE SAME WAS ACCORDINGLY CONSIDERED AS UNDIS CLOSED INCOME THE ASSESSING 17 IT(SS)A NO.134/DEL/2003 IT(SS)A NO.328/DEL/2003 OFFICER ALSO HELD THAT FOR PURCHASE OF GIFT COMMISS ION AT THE RATE OF 10% WOULD HAVE BEEN PAID. THIS RESULTED INTO FURTHER ADDITION OF R S.3.5 LACS. LD CIT(A) DELETED THE ADDITION AND HENCE THIS APPEAL. 7. LD. DR STRONGLY RELIED ON THE ASSESSMENT ORDER. HE ALSO RELIED UPON THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF RAJEEV TANDON VIS ASSTT. CIT, 294 ITR 488 AND HON'BLE SUPREME COURT IN THE CASE OF CI T V/S P. MOHANAKALA, 291 ITR 278. IN BOTH THE CASES IT WAS HELD THAT WHERE THE A SSESSEE RECEIVED GIFTS WHICH WERE NOT SATISFACTORILY EXPLAINED, THE SAME CAN BE ADDED AS INCOME UNDER SECTION 68 OF THE ACT. 8. LEARNED COUNSEL FOR THE ASSESSEE RELIED UPON THE IMPUGNED ORDER. HE ALSO SUBMITTED THAT DECISIONS RELIED UPON BY ID. DR ARE DISTINGUISHABLE ON FACTS. IN THE CASE OF RAJEEV TANDON (SUPRA) AND ADDITIONS WERE MA DE IN THE COURSE OF REGULAR ASSESSMENT AND NOT FOR THE BLOCK ASSESSMENT. IN THE BLOCK ASSESSMENT, THE ADDITION CAN BE MADE ONLY ON THE BASIS OF EVIDENCE FOUND AS A RESULT OF SEARCH. IN THE CASE OF P. MOHANAKALA (SUPRA) ALSO THE ADDITIONS WERE MADE IN THE COURSE OF REGULAR ASSESSMENT AND THERE THE FACTS WERE THAT THE ASSESS EE DID NOT OFFER PROPER, REASONABLE OR ACCEPTABLE EXPLANATION REGARDING THE SUMS FOUND CREDITED IN THE BOOKS. HOWEVER, IN THE PRESENT CASE, DR. PARWAL HAS CONFIRMED HAVIN G GIVEN GIFTS. HE IS MAN OF MEANS. HE HAS CLARIFIED RELATIONSHIPS BETWEEN THE ASSESSEE AND HIMSELF. HE HAS ALSO CLARIFIED IN WHAT CIRCUMSTANCES HE HAS GIVEN GIFTS. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS RIG HTLY POINTED OUT BY THE LD. COUNSEL FOR THE ASSESSEE THE ISSUE IS DISCUSSED BY THE TRIBUNAL AT LENGTH WHILE DECIDING THE APPEAL IN RESPECT OF KL JOLLY AND DALI P JOLLY IN IT(SS) NO.132/DEL/04 AND 133/DEL/04 DATED 7.9.2007. THE TRIBUNAL WHILE D ECIDING THE APPEAL HELD AS UNDER: '46. WE HAVE CAREFULLY CONSIDERED THE ENTIRE MATERI AL ON RECORD AND THE RIVAL SUBMISSIONS. THE BURDEN ON THE ASSESSEE WAS TO PROV E THE IDENTITY OF THE DONOR, HIS CREDITWORTHINESS AND THE GENUINENESS OF THE TRANSACTION OF GIFT. THE ASSESSEE HAD RECEIVED GIFT IN ASSESSMENT YEAR 1993- 94. AS OBSERVED BY US WHILE DEALING WITH, THE GROUND OF THE ASSESSEE RAIS ED IN THE CROSS OBJECTION, WE HAVE HELD THAT THE TRANSACTION OF GIFT WAS DULY DIS CLOSED BY THE ASSESSEE IN THAT YEAR AND EVEN THE INTEREST INCOME HAD BEEN OFFERED FOR TAXATION. 47. IN THE SEARCH AND SEIZURE PROCEEDINGS FROM THE RESIDENCE OF SHRI DALIP JOLLY CERTAIN DOCUMENTS RELATING TO GIFT MADE TO MR S. K.L. JOLLY & SONS HUF WERE FOUND. THESE DOCUMENTS ARE FILED AT PAGES 82 A ND 85 OF THE PAPER BOOK WE REPRODUCE THESE DOCUMENTS AS UNDER:- 'DATED: 31-03-94. K.L. JOLLY, OF M/S. K.L. JOLLY 7 SONS (HUF) GREATER KAILASH PART-2 DELHI- 110048. MR. K.L.JOLLY, 18 IT(SS)A NO.134/DEL/2003 IT(SS)A NO.328/DEL/2003 I AM ENCLOSING HEREWITH CHEQUE N0.365503 DATED -94 OUT OF MY NRE A/C N0.3317 WITH STATE BANK OF INDIA, NRI, BOMBAY FOR RS.1,000,000.00 90NE MLLIONO ONLY AS A GIFT TO HUF OUT OF LOVE AND AFFECTION. I ACCOUNTANT MEMBER A NON-RESIDENT INDIAN SETTLED IN HONGKONG FOR MORE THAN FIVE YEARS. Y PASSPORT NO. IS 625402. YOURS FAITHFULLY, SD/- (D.P.PARWAL ) SECOND DOCUMENT DATED 17-03-1998. TO WHOM IT MAY CONCERN I. DR. D.P. PARWAL S/O. SH. RAMESHWAR LAL PARWAL RESPECT OF STAR MANSION. 18/F, FLAT 4, KOWLOON, HONG KONG DO HEREBY CONFIRM THAT I HAD GIVEN AN AMOUNT OF RS. TEN LACS BY WAY OF GIFT TO M/S. K.L. JOLLY & SONS (HUF) THROUGH CHEQUE NO. 365503 DATED 21.3.94 DRAWN ON SB1, NRI BRANCH, BOMBAY FROM MY NRE ACCOUNT NO.3317. 1 WAS AN NRI SINCE LAST 23 YEARS WHEN THE ABOVE GIFT WAS GIVEN BY ME. NAME.: D.P. PARWAL SD/- SIGNATURE.' 48. ON CLOSER EXAMINATION OF THESE DOCUMENTS IT IS FOUND THAT THIS DOCUMENTARY EVIDENCE ONLY SUPPORT THE CASE OF THE A SSESSEE. NO INCRIMINATING DOCUMENT OF ANY KIND WAS FOUND DURING THE COURSE OF SEARCH TO INDICATE OR TO CREATE ANY DOUBT REGARDING THE IDENTITY OF THE DONO R OR THE GENUINENESS OF THE TRANSACTION. THE ASSESSEE HAS ALSO FURNISHED COPY OF CHEQUE NO.36550 3 DATED 21.3.1994 FOR RS.1,000,000/- OF STATE BANK OF INDIA , NRI BRANCH, BOMBAY IN FAVOUR OF M/S. K.L. JOLLY & SONS (HUF) ISSUED BY DR. D.P. PARWAL WHICH IS AT PAGE 83 OF THE PAPER BOOK. 19 IT(SS)A NO.134/DEL/2003 IT(SS)A NO.328/DEL/2003 49. THE ASSESSEE HAS ALSO PLACED ON RECORD LETTER O F DR. PARWAL WRITTEN TO ADIT, JAIPUR DATED 11.11. 97 AVAILABLE AT PAGE 4 OF THE PAPER BOOK. IN THIS LETTER HE HAS MADE REFERENCE TO THE DISCUSSION ON 2 2.9.1997 IN REFERENCE TO SUMMONS ISSUED UNDER SECTION 131 DATED 18.9.1997. I N THIS LETTER THE DONOR HAS CONFIRMED THE GIFTS BY GIVING FOLLOWING DETAILS . THE RELEVANT CONTENTS OF THE LETTER ARE AS UNDER:- THAT I PERSONALLY KNOW MR. DALIP JOLLY AND MR. PR ADEEP JOLLY AND THEIR FATHER SHRI K.L. JOLLY AND THEIR OTHER FAMILY MEMBE RS VERY WELL AND THAT WE HAVE VISITED EACH OTHERS HOUSES SEVERAL TIMES. AS D ESIRED BY YOU I AM GIVING BELOW THEIR PRESENT ADDRESSES. 1. MR.K.L. JOLLY AND MR. PRADEEP JOLLY S-23, GREATER KAILASH-II, NEW DELHI- 110 040. 2. MR. DILIP JOLLY, 102, FRIENDS COLONY, NEW DELHI 110 065. THAT I HAVE GIVEN GIFTS TO THEM AND THEIR FAMILY ME MBERS OUT OF LOVE AND AFFECTION AND I HAVE NO BUSINESS DEALING W ITH THEM. HENCE GIFTS HAVE BEEN GIVEN FROM MY NRE ACCOUNT NO.1/NRE/30150 OF STATE BANK OF INDIA, NRI BRANCH, NARIMAN POINT, BOMBAY AND THE SAME CAN BE VERIFIED BY YOU. I AM WRITING THIS LETTER TO REITERATE THE FACTS SO THAT MY DEAR FRIENDS DO NOT FACE ANY HARDSHIP. I HOPE YOU WOULD FIND THE ABOVE IN ORDER AND WOULD REQUEST YOU TO PLEASE INCLUDE MY ABOVE SUBMISSIONS AS A PART OF MY EARLIER DEPOSITION. I SHALL BE GLAD TO FURNISH ANY FURTHER DETAILS AND CLARIFICATIONS REQUIRED BY YOU. SIMILARLY THE ASSESSEE HAS FILED THE PASS-PORT OF D R. PARWAL, HIS PERMANENT ACCOUNT NUMBER, BANK PASS-BOOK OF HONGKON G, VISA AND OTHER DETAILS WHICH GO TO PROVE THE IDENTITY OF THE DONOR BEYOND ANY DOUBT. 50. THE ASSESSING OFFICER REQUIRED THE ASSESSEE TO FURNISH DOCUMENTARY EVIDENCE IN RESPECT OF GIFT RECEIVED FR OM DR. PARWAL, NATURE OF RELATIONSHIP WITH HIM, PURPOSE OF GIFT, S UPPORTING DOCUMENTS ALONG WITH COPIES OF BANK STATEMENTS AS PER CLAUSE 7 OF THE QUESTIONNAIRE ISSUED DURING THE BLOCK ASSESSMENT PR OCEEDINGS. THE ASSESSEE VIDE LETTER DATED 9.4.2003 SUBMITTED THAT THE TRANSACTION OF GIFT HAS ALREADY BEEN DEALT WITH IN ASSESSMENT YEAR 1995-96 AND THE GENUINENESS OF THE GIFT WAS DULY DISCLOSED. IN THI S REGARD REFERENCE WAS MADE BY THE ASSESSEE TO THE ASSESSMENT ORDER PA SSED UNDER SECTION 20 IT(SS)A NO.134/DEL/2003 IT(SS)A NO.328/DEL/2003 143(3) DATED 18.3.1998, A COPY OF WHICH HAS ALSO BE EN PLACED ON RECORD. AGAIN THE ASSESSEE MADE SUBMISSION TO THE A SSESSING OFFICER VIDE LETTER DATED 16.4.2003 AND THEREAFTER VIDE LET TER DATED 28.4.2003. IN THE LETTER DATED 28.4.2003 APPEARING AT PAGES 76 TO 78 OF THE PAPER BOOK, THE ASSESSEE MADE REFERENCE TO THE GIFT DEED LETTER DATED 21.3.1994, BANK CERTIFICATE REGARDING THE PROOF THA T THE PAYMENT WAS RECEIVED ON NRI ACCOUNT OF DR. PARWAL, LETTER OF DR . PARWAL DATED 30.8.1999, 13.9.1999. ON THE BASIS OF THIS DOCUMENT ARY EVIDENCE, IT WAS SUBMITTED THAT THE IDENTITY, CREDITWORTHINESS O F THE DONOR IS PROVED AND GENUINENESS OF THE GIFT IS ESTABLISHED. 51. IN THE LETTER DATED 28/4/03 THE INACCURACIES W HICH APPEARED IN THE STATEMENT OF DR. PARWAL RECORDED BY THE ADIT, JAIPU R WERE ALSO EXPLAINED AND CERTIFIED BY NARRATING CIRCUMSTANCES. A RELEVAN T PORTION OF THIS LETTER IS BEING REPRODUCED HERE AS UNDER:- 'I. THAT DR. D.P. PARWAL'S IDENTITY IS CLEARLY ESTABLIS HED AS HE APPEARED IN PERSON BEFORE THE LD. AO AND CATEGOR ICALLY CONFIRMED HAVING GIVEN GIFTS TO THE FAMILY MEMBERS OF THE ASSESSEE FIRM FROM HIS OWN NRE A/C. II. THAT DR. D.P. PARWAL HAS CREDITWORTHINESS, FINA NCIAL STATUS AND THE FINANCIAL CAPACITY (BOTH IN HONGKOPNG AND I N INDIA) TO GIVE GIFTS TO THE JOLLY FAMILY. III. THAT DR. D.O. PARWAL HAD HIS OWN FINDS IN HIS OWN B ANK A/CS. IN HONGKONG FROM WHERE HE GAVE GIFTS BY A/C. PAYEE CHEQUES TO THE JOLLY FAMILY. IV. THAT DR. D.P. PARVAL HAS HIMSELF ESTABLISHED TH E LONG LINKAGE, RELATIONSHIP, LOVE AND AFFECTION FOR JOLLY FAMILY SINCE 1956. C. IN THE CASES OF OTHER FAMILY MEMBERS OF THE ASSE SSEE, WHICH WERE DEAL U/S 158BC OF THE INCOME TAX ACT BY THE LD. JCI T, SPL. RANGE 20, NEW DELHI (HEREINAFTER REFERRED AS A.O.), THE LOVE AND AFFECTION TOWARDS THE FAMILY OF THE ASSESSEE IS PRO VED BY THE FOLLOWING: I. DR. D.P. PARWAL LETTER DATED. 11.11.1997 GIVEN TO T HE ADIT JAIPUR EXPLAINING THAT INACCURACIES HAD CREPT INTO HIS STATEMENT RECORDED BY THE ADIT DUE TO ANXIETY AS HE IS A NRI FOR OVER 3 DECADES AND WAS DEPOSING BEFORE INCOME TAX DEPT. FO R THE FIRST TIME. II. DR. D. P. PARWAL CAME ALL THE WAY FROM JAIPUR L EAVING HIS EXTREMELY BUSY BUSINESS SCHEDULE AND TOOK PAINS TO PRESENT HIMSELF PERSONALLY BEFORE THE LD. AO AT DELHI ON 10.08.99 A S THE LD. AO 21 IT(SS)A NO.134/DEL/2003 IT(SS)A NO.328/DEL/2003 HAD ASKED TO PRODUCE DR. D.P. PARWAL. THE LD. AO AS KED DR. D.P. PARWAL TO SIGN THE ORDER SHEET TO MARK HIS ATT ENDANCE IN HER OFFICE. 111. DR. D.P. PARWAL TOOK PAINS TO WRITE A LETTER DT. 12 .08.99 (IST LETTER) DIRECTLY TO LD. A.O. FROM JAIPUR BY SPEED P OST CONFIRMING HIS ORAL STATEMENT MADE BEFORE HER DURING HIS APPEA RANCE ON 10.08.99 BEFORE THE LD. AO. THE LETTER OF D.P. PARW AL DT.12.08.99 IS ON RECORD AND IS A VERY STRONG FACTUAL CONFIRMAT ION IN SUPPORT OF HIS HAVING MADE GIFTS TO THE ASSESSEE AND THE MEMBERS. IN THIS LETTER DR. D.P. PARWAL DESCRIBED ABOUT HIS BACKGROUND, HIS RELATIONSHIP WITH SH. K.L. JOLLY'S ROLE IN INSPIRIN G HIM AND CAUSING VITAL TURNING POINTS IN LIFE. HE FURTHER CONFIRMED HAVING GIVEN GIFTS TO MEMBERS OF JOLLY FAMILY. IV. DR. D.P. PARWAL TOOK FURTHER PAINS TO WRITE ANO THER LETTER. DT. 30.08.99 (2 ND LETTER) FROM JAIPUR DIRECTLY TO THE LD. AO BY SPEED POST. THIS LETTER IS ON RECORD AND IS VERY ST RONG FACTUAL PIECE OF EVIDENCE CONFIRMING THE ASSESSEE'S CASE. IN HIS LETTER, DR. D.P. PARWAL DESCRIBED ABOUT HIS FINANCIAL STATUS, BIG BUSINESS & HIGH VALUE PROPERTIES IN INDIA COUPLED WITH HIS SOCIAL FINANCIAL STATUS AND HIS PHILANTHROPIC ACTIV ITIES. V. DR. D.P. PARWAL TOOK FURTHER PAINS AND WENT TO H ONGKONG AND WROTE YET ANOTHER LETTER (3 RD LETTER) DT. 13.09.99 FROM HONGKONG TO THE LD. AO. THIS LETTER WAS SENT BY DR. D.P. PARWAT TO SH. K.L. JOLLY TO BE SUBMITTED BY HAND TO THE LD. AO. THIS LETTER IS ON RECORD AND IS VERY STRONG FACTUAL EVIDENCE I N CONFIRMATION & IN SUPPORT OJ THE ASSESSEE'S CASE PROVING THE GENUINENESS OF THESE GIFTS FROM DR. D.P. PARWAL TO THE ASSESSEE TO THE HILT, HE FURTHER PROVIDED DOCUMENTARY EVIDENCE THAT THE G IFTS GIVEN TO JOLLY FAMILY MEMBERS ARE FROM HIS OWN FUNDS IN HIS OWN NRE A /C. HE ALSO SUBMITTED DOCUMENTARY EVIDENCES TO PROVE TH AT HE SUBMITTED HIS OWN FUNDS FROM HIS OWN BANK A/C. IN H ONGKONG TO HIS OWN NRE A/C. IN SB1 BOMBAY (NRI BRANCH) FROM WH ERE A /C. PAYEE CHEQUES OF GIFTS AMOUNTS WERE ISSUED BY HIM T O MEMBERS OF THE JOLLY FAMILY. FURTHERMORE, THIS VERY GIFT FROM THE DONOR, DR. D.P . PARWAL HAS BEEN ALREADY ACCEPTED IN THE CASE OF THE ASSESSEE I N A. Y. 1995-96 U /S 143(3). EVEN THE HON'BLE C.I. T. (A) XV VIDE HIS ORDERS IN CASE OF MR. 22 IT(SS)A NO.134/DEL/2003 IT(SS)A NO.328/DEL/2003 DALIP JOLLY, MRS. SHOBHA JOLLY, MR. PRADEEP JOLLY A ND MRS. NEENA JOLLY HAS BEEN PLEASED TO ALLOW THE GIFTS FROM THE SAME DONOR, DR. D.P. PARWAL TO THE ABOVE NAMED FAMILY MEMBERS. IT IS ALSO SUBMITTED THAT AS PER SECTION 5(I)(IIB) OF GIFT TAX ACT, THE GIFTS FROM NRE ACCOUNT ARE EXEMPT FROM GIFT TAX AND AS PER THIS SUB-SECTION, RELATION BETWEEN DONOR AND DONEE IS NO T REQUIRED. THE JURISDICTIONAL HON. DELHI HIGH COURT RULING IN THE CASE OF 'COMMISSIONER OF INCOME-TAX, DELHI (CENTRAL-2) VS. MRS. SUNITA VACHANI (184 IIR PAGES 121 TO 123, DELHI), IS BINDI NG AND FINAL AND FULLY SUPPORTS THE ASSESSEE'S CASE. THE GIST OF THE HON .. HIGH COURT OF DELHI'S JUDGMENT IS: 'EVEN THOUGH IT MAY BE SURPRISING AS TO HOW LARGE S UM OF MONEY ARE RECEIVED BY A FAMILY IN INDIA BY WAY OF GIFTS F ROM STRANGERS FROM ABROAD, UNLESS THERE IS SOMETHING MORE TANGIBL E THAN SUSPICION, IT WILL BE DIFFICULT TO REGARD THE MONEY S RECEIVED IN INDIA FROM ABROAD AS REPRESENTING THE INCOME OF THE ASSES SEE IN INDIA. ' 52. WE HAVE REFERRED TO THE LETTER OF DR. PARWAL DA TED 11.11.1997 AND OTHER LETTERS WRITTEN BY HIM TO THE A.O. IN THESE LETTERS , HE HAS FURTHER GIVEN DETAILS OF HIS ACQUAINTANCE WITH THE ASSESSEE. HE HAS ALSO GIV EN DETAILS OF HIS BUSINESS WHICH WAS STARTED IN THE NAME OF BUSINESS CENTRE IN 1997 WHICH WAS INAUGURATED BY DY. CHIEF MINISTER OF RAJASTHAN. WIT H THIS LETTER ALSO DOCUMENTS HAVE BEEN ATTACHED TO SHOW THAT DR. PARWA L COMMENCED THE BUSINESS IN 1997 IN JAIPUR AND HAD USED BANK ACCOUN T IN INDIA AS WELL AS HONGKONG. THE DOCUMENTS ARE AVAILABLE AT PAGES 28 TO 121 OF THE PAPER BOOK ON GOING THROUGH THESE DOCUMENTS NOBODY CAN DO UBT ABOUT THE IDENTITY OF THE DONOR OR HIS CAPACITY TO MAKE THE GIFT OF RS .10 LAKHS TO THE ASSESSEE. THE GENUINENESS OF TRANSACTION OF GIFT IS ALSO PROVED LEYOND DOUBT. 53. THUS FROM THE ENTIRE DOCUMENTARY EVIDENCE WHETH ER COLLECTED DURING THE COURSE OF SEARCH OR FURNISHED BY THE ASSESSEE BEFOR E THE DEPARTMENTAL AUTHORITIES OR FROM THE MATERIAL FURNISHED BY THE D ONOR TO ADIT, JAIPUR AND TO THE ASSESSING OFFICER, IT IS FOUND THAT THE CLINCHI NG VOLUMINOUS DOCUMENTARY EVIDENCE FULLY SUPPORT THE CASE OF THE ASSESSEE. TO REPEAT, NO DOCUMENT WAS FOUND DURING THE COURSE OF SEARCH OR DURING POST SE ARCH ENQUIRIES TO SHOW ANYTHING AGAINST THE GENUINENESS OF THE GIFT. THE A SSESSING OFFICER RECORDED THE STATEMENT OF THE DONEE AND FROM HIS STATEMENT A LSO NOTHING ADVERSE CAN BE TRACED OUT. FOR REASONS BEST KNOWN TO HIM, THE ASSE SSING OFFICER DID NOT EXAMINE THE DONOR ALTHOUGH THE DONOR APPEARED BEFOR E HIM AND ALSO WROTE SEVERAL LETTERS TO HIM. IN ANY CASE THE ASSESSING O FFICER HIMSELF COULD NOT COLLECT ANY EVIDENCE OR MATERIAL TO JUSTIFY THE FIN DINGS THAT THE GIFT WAS BOGUS OR WAS PROCURED BY THE ASSESSEE BY PAYING SOME CONS IDERATION. THE LEARNED DR HAS NOT BROUGHT TO OUR NOTICE ANY INCRIMINATING MATERIAL COLLECTED BY THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS WHICH GOES TO CREATE DOUBT ABOUT THE GENUINENESS OF THE GIFT. 23 IT(SS)A NO.134/DEL/2003 IT(SS)A NO.328/DEL/2003 54. THE ONLY AND MAIN MATERIAL TAKEN INTO CONSID ERATION BY THE ASSESSING OFFICER IS THE STATEMENT RECORDED BY THE ADIT, JAIP UR. THIS STATEMENT WAS RECORDED BY HIM DURING POST SEARCH ENQUIRY AS IS EV IDENT FROM THE OBSERVATION OF THE ASSESSING OFFICER IN 3 RD SENTENCE OF PARA 4 AT PAGE 2 OF THE ASSESSMENT ORDER, WHICH IS AS UNDER:- 'DURING THE POST SEARCH PROCEEDINGS, THE INCOME-TAX DEPARTMENT, JAIPUR HAS RECORDED THE STATEMENT OF DR. PARWAL. IN HIS REPORT THE ADIT, INVESTIGATION-Z, JAIPUR HAS STATED THAT THE CLAIM OF DR. PARWAL THAT HE IS A CLOSE FRIEND OF JOLLY FAMILY AN D THE GIFT WAS MADE DUE TO FRIENDSHIP IS DOUBTFUL ' FROM THE ABOVE PORTION OF THE ASSESSMENT ORDER IT I S CLEAR (1) THAT DURING POST SEARCH PROCEEDINGS THE ADIT, INVESTIGATION-2. JAIPU R RECORDED THE STATEMENT OF DR. PARWAL; (2) THAT AFTER RECORDING STATEMENT HE S ENT A REPORT TO THE ASSESSING OFFICER; AND (3) THAT THE REASONS AND THE PURPOSE O R THE BACKGROUND IN WHICH THE ADIT; INVESTIGATION-2, JAIPUR EXAMINED DR. D.P. PARWAL DURING POST SEARCH PROCEEDINGS IS NOT KNOWN NOR THE DEPARTMENT HAS BROUGHT SUCH MATERIAL ON RECORD. 55. THIS STATEMENT IS THE SOLE TESTIMONY ON THE BAS IS OF WHICH THE ASSESSING OFFICER HAS DRAWN ADVERSE INFERENCE AGAINST THE ASS ESSEE AND ABOUT THE GENUINENESS OF THE GIFT. HENCE, WE WOULD LIKE TO DE AL ABOUT THE COMPETENCE AND JURISDICTION OF THE ADIT, INVESTIGATION-2, JAIPUR F OR RECORDING THE STATEMENT DURING POST SEARCH PROCEEDINGS AND ALSO ABOUT THE E VIDENTIARY VALUE OF SUCH STATEMENT PARTICULARLY IN THE CONTEXT THAT THIS WIT NESS WAS NOT OFFERED FOR CROSS EXAMINATION TO THE ASSESSEE NOR WAS EXAMINED BY THE ASSESSING OFFICER DESPITE THE FACT THAT HE WROTE SEVERAL LETTERS TO ADIT AND ASSESSING OFFICER TO CLARIFY THE SOCALLED DISCREPANCIES AND REMAINED AVAILABLE B EFORE THE ASSESSING OFFICER FOR GETTING HIMSELF EXAMINED. 56, COMING TO THE POWER, JURISDICTION AND LEGAL COMPETE NCE OF THE ADIT, WE HAVE TO TRACE OUT THE POWERS OF THE DEPARTMENTAL OFFICERS AS GIVEN UNDER SECTION 131(1) AND 131(1A) OF THE ACT. WHEREAS SECT ION 131(1) DEALS WITH THE POWERS OF THE ASSESSING OFFICER, DY. COMMISSIONER ( APPEALS), JOINT COMMISSIONER, COMMISSIONER (APPEALS) AND CHIEF COMM ISSIONER OR COMMISSIONER. SECTION 131 (1A) DEALS WITH THE POWER S OF DIRECTOR GENERAL OR JOINT DIRECTOR OR ASSISTANT DIRECTOR OR AUTHORIZED OFFICER. FORMER CATEGORY DEALS WITH THOSE OFFICERS WHO DISCHARGE JUDICIAL JU NCTIONS. THESE, POWERS ARE EXERCISED WHILE MAKING ASSESSMENT OR DECIDING APPEA L OR REVISION. THESE ARE JUDICIAL POWERS DISCHARGED WHILE DOING JUDICIAL OR QUASI JUDICIAL FUNCTION. WHEREAS THE POWERS UNDER SECTION 131(1) ARE IN A WA Y RELATED TO ASSESSMENT PROCEEDINGS, THE POWERS UNDER SEC. 131 (1A) DEAL WI TH PRE ASSESSMENT STAGE AND OTHER THAN ASSESSMENT PROCEEDINGS. WE CONSIDER IT PROPER TO REPRODUCE THE PROVISIONS OF SECTIONS 131(1) AND 13I(1A) WHICH ARE AS UNDER:- '131. (1) THE ASSESSING OFFICER, DEPUTY COMMISSIONE R APPEALS), JOINT COMMISSIONER, COMMISSIONER (APPEALS) AND CHIE F COMMISSIONER OR COMMISSIONER SHALL, FOR THE PURPOSE S OF THIS ACT, HAVE THE SAME POWERS AS ARE VESTED IN A COURT UNDER THE 24 IT(SS)A NO.134/DEL/2003 IT(SS)A NO.328/DEL/2003 CODE OF CIVIL PROCEDURE, 1908 (5 OF 1908) WHEN TRYI NG A SUIT IN RESPECT OF THE FOLLOWING MATTERS, NAMELY:- (A) DISCOVERY AND INSPECTION; (B) ENFORCING THE ATTENDANCE OF ANY PERSON INCLUDIN G ANY OFFICER OF A BANKING COMPANY AND EXAMINING HIM ON OATH; (C) COMPELLING THE PRODUCTION OF BOOKS OF ACCOUNT A ND OTHER DOCUMENTS; AND (D) ISSUING COMMISSIONS. (1A) IF THE DIRECTOR GENERAL OR DIRECTOR OR JOINT D IRECTOR OR ASSISTANT DIRECTOR OR DEPUTY DIRECTOR OR THE AUTHOR IZED OFFICER REFERRED TO IN SUB-SECTION (1) OF SECTION 132 BEFOR E HE TAKES ACTION UNDER CLAUSES (I) TO (V) OF THAT SUB-SECTION, HAS REASON TO SUSPECT THAT ANY INCOME HAS BEEN CONCEALED, OR IS L IKELY TO BE CONCEALED, BY ANY PERSON OR CLASS OF PERSONS, WITHIN HIS JURISDICTION, THEN FOR THE PURPOSES OF MAKING ANY E NQUIRY OR INVESTIGATION RELATING THERETO, IT SHALL BE COMPETE NT FOR HIM TO EXERCISE THE POWERS CONFERRED UNDER SUB-SECTION (1) ON THE INCOME-TAX AUTHORITIES REFERRED TO IN THAT SUB-SECT ION, NOTWITHSTANDING THAT NO PROCEEDINGS WITH. RESPECT T O SUCH PERSON OR CLASS OF PERSONS ARE PENDING BEFORE HIM O R ANY OTHER INCOME-LAX AUTHORITY. ' 57, IN THE CASE OF ARJUN SINGH VS. ASST. DIRECTOR O F INCOME-TAX, 246 TIR 363 (MP) THE HON'BLE MADHYA PRADESH HIGH COURT HAS DEAL T WITH THE SCOPE AND AMBIT OF THE POWERS GIVEN TO THE TWO CATEGORIES OF OFFICERS. THE HON'BLE HIGH COURT HAS OBSERVED AS UNDER:- 'THE PURPOSE OF THE POWER UNDER SUB-SECTION (1) OF SECTION 131 OF THE INCOME-TAX ACT, 1961 IS IN AID OF ACTION UNDER SOME PROVISION UNDER THE ACT AND IT IS A WELL SETTLED PRINCIPLE OF LAW T HAT ALL STATUTORY BODIES MUST ACT FOR THE PURPOSE OF THE STATUTE EVEN THOUGH THE TERM FOR THE PURPOSE OF THE ACT IS NOT EXPRESSLY STATED. THE P URPOSE OF EXERCISE OF POWER UNDER SUB-SECTIONS (1) AND (1A) OF SECTION 13 1 IS NOT THE SAME, AS THE POWER UNDER SUB-SECTION (1) OPERATES IN THE FIELD WHERE THE PERSON IS AN ASSESSEE AND PROCEEDINGS ARE PENDING A GAINST HIM; WHEREAS THE POWER UNDER SUB-SECTION 1A) OPERATES IN THE FIELD WHERE THERE IS NO PROCEEDING FOR ASSESSMENT PENDING AGAIN ST ANY SUCH PERSON OR CLASS OF PERSONS AND THE ENQUIRY/INVESTIGATION I S NECESSARY FOR THE PURPOSE OF MAKING ANY ENQUIRY/INVESTIGATION ON THE BASIS OF REASON TO SUSPECT CONCEALMENT OR LIKELIHOOD OF CONCEALMENT OF INCOME BY SUCH PERSON OR CLASS OF PERSONS. THE OTHER REQUIREM ENT UNDER SUB- 25 IT(SS)A NO.134/DEL/2003 IT(SS)A NO.328/DEL/2003 SECTION (1A) OF SECTION OF THE ACT IS THAT THE AUTH ORITIES/OFFICERS MENTIONED THEREIN IN WHOSE JURISDICTION, THE INCOME IS ALLEGED TO HAVE BEEN CONCEALED OR IS LIKELY TO BE CONCEALED, M UST HAVE REASON TO SUSPECT WHICH IN FACT, IS A CONDITION PRECEDENT FOR THE EXERCISE OF POWER AND SUCH REASON OR SUSPICION MUST BE BASED ON TANGIBLE MATERIAL ON RECORD LEGALLY COGNIZABLE AND NOT MERELY HEARSAY, CONJECTURES AND SURMISES. THE EXPRESSION ' HAS REASON TO SUSPECT THAT ANY INCOME HAS BEEN CONCEALED OR IS LI KELY TO BE CONCEALED' CLEARLY REFERS TO A PRE-ASSESSMENT STAGE . THE POWER UNDER SECTION 131(1A) CANNOT BE SAID TO BE AN INDEP ENDENT POWER IN ITSELF BUT IS THE POWER FOR THE PURPOSE OF MAKIN G ENQUIRY AND INVESTIGATION RELATING TO ANY INCOME WHICH HAS BEEN CONCEALED OR IS LIKELY TO BE CONCEALED BY ANY REASON OR CLASS OF PERSONS, EQUIPPING WITH HIM WITH POWERS REGARDING DISCOVERY, PRODUCTION OF EVIDENCE, ETC., AS PROVIDED UNDER SUB-SECTION (1) OF SECTION 131 OF THE ACT. THE EXPRESSION 'BEFORE HE (I.E. THE AUT HORISED OFFICER) TAKES ACTION UNDER CLAUSES (I) TO (V) OF SECTION 132(1) OF THE ACT. ' IS MATERIAL AND RELEVANT, I.E., THE POWER REGARDING DI SCOVERY, PRODUCTION ETC., AS PROVIDED UNDER SUB-SECTION (1) OF SECTION 131 CAN BE EXERCISED BY THE AUTHORIZED OFFICER BEFORE E XERCISE OF THE POWER OF SEARCH AND SEIZURE IN CLAUSES (1) TO (V) OF SECTION 132(1). THE POWER UNDER SUB-SECTION (1A) OF SECTION 131 IS ONLY AN ENABLING POWER REGARDING DISCOVERY, PRODUCTION OF E VIDENCE, ETC., BEFORE ENTERING INTO THE ACTUAL EXERCISE OF SEARCH AND SEIZURE UNDER SECTION 132 OF THE ACT. SUCH A POWER UNDER SECTION 131(1A) CANNOT BE EXERCISED FOR THE PURPOSE OF REOPENING OF AN ASSESS MENT UNDER SECTION 147. ON GOING THROUGH THE ABOVE DECISION, IT IS CLEAR THAT SUB-SECTION (1A) O F SECTION 131 ENABLES THE OFFICERS OF THE DEPARTMENT TO CONDUCT P RE SEARCH ENQUIRIES. REGARDING THE REQUIREMENT OF SECTION 131(1) THE HON'BLE HIGH COUR T HAS OBSERVED AS UNDER:- 'THE OTHER REQUIREMENT UNDER SUB-SECTION (JA) OF SE CTION 131 OF THE ACT IS THAT THE AUTHORITIES/OFFICERS MEN TIONED THEREIN IN WHOSE JURISDICTION THE INCOME IS ALLEGED TO HAVE BEEN CON CEALED OR IS LIKELY TO BE CONCEALED, MUST HAVE REASON TO SUSPECT WHICH IN FAC T, IS A CONDITION PRECEDENT FOR THE EXERCISE OF POWER AND SUCH REASON OR SUSPICION MUST BE BASED ON TANGIBLE MATERIAL ON THE RECORD AND LEGALLY COGNIZABLE AND NOT MERELY SOME HEARSAY ACCU SATION, CONJECTURES AND SURMISE. 58. THUS THE POWER CAN BE EXERCISED UNDER SECTION 131 (1A) OF THE ACT FOR CONDUCTING INVESTIGATION OR ENQUIRY RELATING TO UND ISCLOSED INCOME OR PROPERTY BY ANY PERSON OR CLASS OF PERSONS ON THE BASIS OF REAS ON TO SUSPECT THAT ANY INCOME IS CONCEALED OR LIKELY TO BE CONCEALED AS PROVIDED UND ER SECTION 131(1A) SUCH INCOME SHOULD BE CONCEALED WITHIN THE JURISDICTION OF SUCH AUTHORITIES'. SO FAR AS THE PRESENT CASE IS CONCERNED, THE DEPARTMENT HAS NOT BEEN ABLE TO SHOW THAT 26 IT(SS)A NO.134/DEL/2003 IT(SS)A NO.328/DEL/2003 THE ADIT, JAIPUR HAD ANY REASON TO SUSPECT THAT INC OME OF THE ASSESSEE WAS CONCEALED INCOME. THE ASSESSEE WAS DEFINITELY NOT W ITHIN HIS TERRITORIAL JURISDICTION. THERE WAS NO CASE THAT THE INCOME HAS BEEN CONCEALED BY THE DONOR. NO SEARCH WAS CONDUCTED IN THE CASE OF THE DONOR WH OSE STATEMENT WAS RECORDED IN JAIPUR. THUS THE LEGAL COMPETENCY OF ADIT, JAIPUR AND AUTHORITY OF HIS JURISDICTION TO RECORD THE STATEMENT OF DR. D.P. PA RWAL IS NOT JUSTIFIED AND WE ARE AFRAID THE STATEMENT RECORDED BY HIM CAN BE JUSTIFI ED IN TERMS OF HIS LEGAL AUTHORITY TO DO SO. IF THE STATEMENT IS FOUND TO BE RECORDED BY AN AUTHORITY NOT COMPETENT TO DO SO, THEN ITS USE IN ASSESSMENT PROCEEDINGS HAS T O BE CONSIDERED WITH THAT ANGLE. 59. NOW COMING TO THE EVIDENTIARY VALUE OF THE STA TEMENT OF DR. PARWAL IT IS ALSO TO BE SEEN THAT AS TO UNDER WHAT CIRCUMSTANCES THIS STATEMENT WAS RECORDED? THE DEPONENT I.E. THE DONOR HAS CLARIFIED THE CIRCUMSTA NCES UNDER WHICH HE HAD GIVEN THE GIFT AND HAD CATEGORICALLY DISCLOSED THE FULL DETAILS OF THE FAMILY OF THE DONEE. HE WROTE SEVERAL LETTERS WHICH HAVE BEEN REF ERRED TO IN THE EARLIER PART OF THIS ORDER. HE ALSO WROTE LETTERS TO CLARIFY HIS ST AND. HOWEVER, THE ASSESSING OFFICER DID NOT EXAMINE HIM NOR OFFERED THE OPPORTU NITY TO THE ASSESSEE TO CROSS EXAMINE HIM. THE ENQUIRY AT THE LEVEL OF THE ASSESS ING OFFICER CANNOT BE SAID TO BE COMPLETE. THE WITNESS REMAINED UN-CROSS-EXAMINED , UN-CONFRONTED AND NO FURTHER ENQUIRY WAS MADE WHICH WAS NECESSARY AFTER THE LETTERS WRITTEN BY HIM. THE ASSESSING OFFICER THEREFORE, IN OUR OPINION HAS NOT DISCHARGED HIS FUNCTIONS PROPERLY. ACCORDING TO THE RULES OF NATURAL JUSTICE ALSO THE TESTIMONY CANNOT BE UTILIZED AGAINST A PERSON IF HE HAD NOT BEEN GIVEN OPPORTUNITY TO CROSS EXAMINE THE WITNESS. 60. IN THE CASE OF CIT VS. S.M. AGARWAL 162 TAXMAN 3, THE HON'BLE DELHI HIGH COURT UPHOLDING THE VIEW TAKEN BY THE ITAT HAS HELD THAT THE STATEMENT MADE BY 'S COULD NOT BE SAID TO BE RELEVANT EVIDENC E AGAINST THE ASSESSEE SINCE THE ASSESSEE WAS NOT GIVEN ANY OPPORTUNITY TO CROSS EXAMINE HER AND EVEN FROM THE STATEMENT NO CONCLUSION COULD BE DRAWN THAT THE ENTRIES MADE ON THE RELEVANT PAGE BELONGED TO THE ASSESSEE AND REPRESENTED HIS U NDISCLOSED INCOME.' IN THAT CASE, DURING THE COURSE OF SEARCH CONDUCTED AT THE PREMISES OF THE ASSESSEE DOCUMENTS OF CERTAIN MONETARY TRANSACTION SUCH AS A DVANCEMENT OF LOAN BY THE ASSESSEE AND ALSO INCOME BY WAY OF INTEREST WERE FO UND. ON ASKING QUESTION THE ASSESSEE EXPLAINED THAT THE ACCOUNT BELONGED TO HIS DAUGHTER S BUT IN HER STATEMENT SHE DENIED TO HAVE ANY TRANSACTION WITH T HE ASSESSEE. ON THE BASIS OF THE STATEMENT OF S, THE ASSESSING OFFICER CONCLUDED THAT THE ASSESSEE H AD EARNED INCOME FROM UNDISCLOSED SOURCES AND ACCORDINGLY ADD ED THE AMOUNT OF LOAN AND INTEREST TO THE INCOME OF THE ASSESSEE. THE COMMISS IONER (APPEALS) SET ASIDE THE ORDER OF THE ASSESSING OFFICER. ON APPEAL BY 'THE R EVENUE, THE ITAT UPHELD THE ORDER AND HELD THAT THE ASSESSING OFFICER HAD TAKEN INTO ACCOUNT THE STATEMENT OF S AND HAD UTILIZED THE SAME AGAINST THE ASSESSEE BUT THE FACT REMAINED THAT THE SAID STATEMENT WAS RECORDED BEHIND THE BACK OF THE ASSESSEE AND NO OPPORTUNITY W{1S GIVEN TO HIM TO CROSS EXAMINE HER. THIS VIEW O F ITAT WAS UPHELD BY THE HON'BLE DELHI HIGH COURT AND THE APPEAL OF THE REVE NUE WAS DISMISSED. 61. IN THE INSTANT CASE ALSO FIRSTLY IN THE STATEME NT RECORDED BY THE ADIT, JAIPUR, THE DONOR HAD CONFIRMED THE TRANSACTION OF GIFT MADE BY TO THE 27 IT(SS)A NO.134/DEL/2003 IT(SS)A NO.328/DEL/2003 ASSESSEE AND THIS STATEMENT, THEREFORE, COULD NOT B E SAID TO BE AN ADVERSE EVIDENCE AGAINST THE ASSESSEE. SECONDLY, IF CERTAIN DISCREPANCIES WERE NOTICED IN THE SAID STATEMENT THEN THE ADIT, JAIPUR, WAS REQUI RED TO PROVIDE OPPORTUNITY TO THE ASSESSEE TO CONFRONT HIM PARTICULARLY WHEN THE DONO R WROTE A SUBSEQUENT LETTER DATED 11.11.1997 TO HIM EXPLAINING ALL THE S OCALLED DOUBTS AND DISCREPANCIES. THIRDLY, THE STATEMENT OF THE DONOR WAS RECORDED BY THE ADIT, JAIPUR AND NOT BY THE ASSESSING OFFICER AND IF THE ASSESSI NG OFFICER WANTED TO UTILIZE THE SAME AGAINST THE ASSESSEE OR WANTED TO DRAW ANY ADV ERSE INFERENCES ON THE BASIS OF SUCH STATEMENT AGAINST THE ASSESSEE, T HEN IT WAS INCUMBENT UPON HIM TO HAVE AFFORDED OPPORTUNITY OF CROSS-EXAMINATION T O THE ASSESSEE. BY NOT DOING SO, THE ASSESSING OFFICER HAS VIOLATED THE SETTLED RULES OF NATURAL JUSTICE. IT MAY BE POINTED OUT THAT EVEN BEFORE THE ASSESSING OFFIC ER THE DONOR APPEARED AND THERE WAS FULL OPPORTUNITY TO THE ASSESSING OFFICER TO EXAMINE HIM. BUT DESPITE HIS INSISTENCE THE ASSESSING OFFICER NEITHER EXAMIN ED HIM NOR GAVE OPPORTUNITY TO THE ASSESSEE TO CROSS-EXAMINE HIM. 62. TEST OF HUMAN PROBABILITY AND CIRCUMSTANTIAL EV IDENCE CAN BE APPLIED IN THE CONTEXT OF SOME MATERIAL AND THE INFERENCES CAN BE DRAWN ON THE BASIS OF SOME EVIDENCE, DOCUMENTARY OR ORAL OR ON THE BASIS OF SO ME CIRCUMSTANCES ATTRIBUTABLE TO A PARTICULAR TRANSACTION. IN OUR OPINION THEREFO RE, THE RATIO OF DECISION IN THE CASE OF SUMATI DAYAL (SUPRA) CANNOT BE APPLIED TO T HE FACTS AND CIRCUMSTANCES OF THE PRESENT MATTER. SO FAR AS GIFT BY A NON RELATIO N IS CONCERNED, IT HAS BEEN HELD BY THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. SUNITA VACHANI, 184 ITR 121, THAT 'EVEN THOUGH IT MAY BE SURPRISING AS TO HOW LA RGE SUMS OF MONEY ARE RECEIVED BY A FAMILY IN INDIA BY WAY OF GIFTS FROM STRANGERS FROM ABROAD, U NLESS THERE IS SOMETHING MORE TANGIBLE THAN SUSPICION, IT WILL BE DIFFICULT TO REGARD THE MONEYS RECEIVED IN INDIA FROM ABROAD AS REPRESENTIN G THE INCOME OF THE ASSESSEE IN INDIA' 63. THUS MERE FACT THAT A PERSON GAVE A GIFT OF HUG E MONEY BY ITSELF CANNOT BE A FACTOR TO DOUBT THE GENUINENESS OF TRANSACTION OF GIFT UNLESS THERE IS SOME OTHER MATERIAL TO CREATE SUCH DOUBT. 64. THE HON'BLE GUJARAT HIGH COURT HAS EXAMINED TH E ISSUE IN THE CASE OF NEK KUMAR 191 CTR 207. IN THAT CASE THE DONOR HAS GIVEN AFFIDAVIT AND ALSO FILED A DECLARATION THAT SHE HAD GIVEN GIFT TO THE ASSESSEE . THERE BEING NO MATERIAL EVIDENCE TO SHOW THAT THE MONEY WAS DEPOSITED BY THE ASSESSE E OR BY ANY RELATIVE IN THE BANK FROM WHERE IT CAME BACK TO THE ASSESSEE, IT WAS HELD THAT THE GIF T COULD NOT BE TREATED AS NON-GENUINE. 65. IN THE CASE OF ITO VS. KAILASH CHAND BANSAL, 129 TAXMAN 112, THE ITO ADDED THE AMOUNTS OF GIFTS RECEIVED BY THE ASSESSEE ON THE GROUND THAT THE ASSESSEE HAD FAILED TO PROVE INGREDIENTS OF LOVE AN D AFFECTION AND THERE WAS ABSENCE OF ANY RELATIONSHIP BETWEEN THE DONOR AND T HE DONEE. ITAT DELHI BENCH 'CIT(A) OBSERVED THAT THE ASSESSEE HAD ADDUCED ALL NECESSARY EVIDENCE IN THE FORM OF GIFT DEEDS, AFFIDAVIT OF DONOR, BANK'S CONFIRMATION AND COPIES OF NRE BANK ACCOUNTS. ON THESE FACTS, IT WAS HELD THAT INITIAL BURDEN WHICH LAY UPON THE ASSESSEE HAD BEEN DISCHARGED AND THE SAME WAS SHIFT ED TO THE ASSESSING OFFICER 28 IT(SS)A NO.134/DEL/2003 IT(SS)A NO.328/DEL/2003 WHO HAD FAILED TO BRING SUFFICIENT MATERIAL ON RECO RD TO DISPROVE THE GIFTS IN QUESTION. THE DELETION OF ADDITION BY THE CIT WAS U PHELD BY THE ITAT. 66. IN THE CASE OF CIT VS. R.S. SIBAL, 269 ITR 430 THE ASSESSING OFFICER NOTICED TWO DEPOSITS OF RS. 7 LAKHS AND RS.2.25 LAK HS ON JULY 8, 1993 AND AUGUST /2, 1993 RESPECTIVELY IN THE ASSESSEE'S BANK ACCOUNT. T HE ASSESSEE WAS REQUIRED TO EXPLAIN THE SOURCES OF THE TWO AMOUNTS. THE ASSE SSEE GAVE DETAILS INCLUDING THE COPIES OF GIFT-DEEDS AND AFFIDAVITS OF THE DONO RS. HOWEVER, THE ASSESSING OFFICER TREATED THE GIFT AS NON-GENUINE. THE COMMIS SIONER (APPEALS) DELETED THE ADDITION WHICH VIEW WAS UPHELD BY ITAT. THE HON'BLE HIGH COURT OF DELHI FOLLOWED THE DECISION IN THE CASE OF SAJAN DASS & SONS VS. CIT, 264 ITR 435 (DEL) AND UPHELD THE VIEW OF THE ITAT AND MADE THE FOLLOWING OBSERVATIONS:- 'HELD, DISMISSING THE APPEAL, THAT THE ONLY GROUND ON WHICH THE GENUINENESS OF THE GIFTS HAD BEEN DOUBTED WAS THE A LLEGED FAILURE ON THE PART OF THE ASSESSEE TO ESTABLISH RELATIONSH IP BETWEEN THE DONOR AND THE DONEE. BOTH THE LOWER APPELLATE AUTHO RITIES HAD RECORDED A CATEGORICAL FINDING THAT BY PRODUCING TH E DOCUMENTS, THE ASSESSEE HAD DISCHARGED THE ONUS WHICH LAY ON H IM WITH REGARD TO THE GENUINENESS OF THE GIFTS. THE INFERENCE DRAW N BY THE APPELLATE AUTHORITIES, ON THE APPRECIATION OF EVIDE NCE WAS FACTUAL, GIVING RISE TO NO QUESTION OF LAW MUCH LESS A SUBST ANTIAL QUESTION OF LAW. ' BEFORE THE HON'BLE HIGH COURT ONE OF THE ARGUMENT R AISED WAS THAT THE ASSESSEE HAD NOT ESTABLISHED THE CAPACITY OF THE DONOR TO MA KE THE AFORENOTED GIFT, IT WAS ALSO URGED THAT THERE WAS NO REASON WHY TWO STRANGE RS WOULD MAKE GIFTS OF HEAVY AMOUNTS AS THE ASSESSEE HAS FAILED TO PROVE A NY LOVE AND AFFECTION BETWEEN THE SAID PARTIES. THE HON'BLE DELHI HIGH CO URT REJECTED THIS CONTENTION AND UPHELD THE VIEW TAKEN BY ITAT 67. IN VIEW OF THE ABOVE DECISIONS, IT IS CLEAR THA T THE GENUINENESS OF THE GIFT CANNOT BE DOUBTED ON SURMISES AND CONJECTURES. IN T HE INSTANT CASE, THE DONOR HAD HUGE RESOURCES WHICH HAVE BEEN BROUGHT ON RECOR D AND ALSO ON CONSIDERATION OF LOVE AND AFFECTION MADE THE GIFT T O THE ASSESSEE. THE ASSESSING OFFICER HAS DOUBTED THE GENUINENESS OF THE GIFT ONL Y ON THE BASIS OF SUSPICION WITHOUT BRINGING ANY COGENT MATERIAL ON RECORD TO D ISPROVE THE GENUINENESS OF THE GIFT. THIS APPROACH, THEREFORE, CANNOT BE JUSTI FIED 68. IN VIEW OF THE ABOVE, THE ORDER OF THE LEARNE D COMMISSIONER OF INCOME- TAX (APPEALS) AND HIS FINDINGS FOR DELETING THE ADD ITIONS CANNOT BE INTERFERED WITH. ' 10. WE FIND THAT THE FACTS IN THE PRESENT CASE AR E IDENTICAL. WHEN THE INCOME IS TO BE COMPUTED AS UNDISCLOSED INCOME UNDER CHAPTER XIV-B, IT CAN BE COMPUTED ONLY ON THE BASIS OF EVIDENCE FOUND AS A RESULT OF SEARCH. HOWE VER, IT IS ADMITTED FACT THAT NO MATERIAL WAS FOUND DURING THE SEARCH WHICH SUGGESTE D THAT THE GIFT RECEIVED BY THE ASSESSEE AND HIS MINOR SONS FROM DR. PARWAL WAS BOG US. THE BOOKS OF ACCOUNT FOUND DURING THE SEARCH PERTAINING TO FINANCIAL YEAR 1993 -94 DULY DISCLOSED RECEIPT OF GIFT. DR. 29 IT(SS)A NO.134/DEL/2003 IT(SS)A NO.328/DEL/2003 PARWAL HAS SENT A LETTER GIVING GIFTS TO ASSESSEE A ND HIS TWO SONS. THESE ARE DULY RECORDED IN THE REGULAR BANK ACCOUNT OF THE ASSESSE E. THOUGH THE STATEMENT OF DR. PARWAL WAS RECORDED WHEREIN DR. PARWAL COULD NOT AN SWER CERTAIN QUESTIONS, HOWEVER, IMMEDIATELY THEREAFTER HE FILED LETTERS BEFORE ADIT , JAIPUR ADMITTING GIFTS AND ALSO GIVING EITHER RELEVANT DETAILS. DR. PARWAL FURTHER APPEARED BEFORE THE ASSESSING OFFICER BUT SINCE NO ADVERSE FACTS WERE FOUND HIS STATEMENT WAS NOT RECORDED. THAT ORDER SHEET DULY SIGNED BY DR. PARWAL WITH ANOTHER LETTER TO TH E ASSESSING OFFICER DIRECTLY CONFIRMING WHATEVER HE EARLIER STATED BEFORE THE ADI, JAIPUR. HE ALSO FILED HIS BANK ACCOUNT AND DOCUMENTS SHOWING HIS SOCIAL AND FINANC IAL STATUS THIS EVIDENCE PROVED THAT THE GIFTS WERE GENUINE. RATHER THERE ARE NO OT HER MATERIAL TO HOLD THAT THE GIFT IS BOGUS OR IT IS ANY HAWALA TRANSACTION. SINCE RECEIP T OF GIFT WAS DULY RECORDED IN BOOKS OF ACCOUNT AND IS ALSO DISCLOSED IN THE RETURN FILED PRIOR TO SEARCH AND S INCE THERE IS NO OTHER INCRIMINATING MATERIAL, LD. CIT(A) WAS JUSTIF IED IN DELETING THE ADDITION IN THIS REGARD. THE DECISIONS RELIED ON BY THE LD. DR ARE D ISTINGUISHABLE IN THE PRESENT SITUATION. IN THE CASE OF P. MOHANAKALA (SUPRA) TH E FACTS WERE THAT THE ASSESSEE RECEIVED FOREIGN GIFTS FROM ONE COMMON DONOR. THE EVIDENCE I NDICATED THAT DONOR WAS TO RECEIVE SUITABLE COMPENSATION FROM THE ASSESSEE. ON THE BAS IS OF THIS MATERIAL THE ASSESSING OFFICER HELD THAT GIFTS THOUGH APPARENT WERE NOT RE AL AND HENCE TREATED THE SUM AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT . THIS WAS CONFIRMED BY THE LD. CIT(A) AND FURTHER CONFIRMED BY TRIBUNAL BY A MAJOR ITY VIEW. ON APPEAL THE HON'BLE HIGH COURT RE-APPRECIATED THE EVIDENCE AND SUBSTITU TES ITS OWN FINDING OF FACTS. THIS DECISION OF HON'BLE HIGH COURT WAS REVERSED BY HON' BLE SUPREME COURT. HON'BLE SUPREME COURT HELD THAT WHERE THE FINDING OF ASSESS ING OFFICER, COMMISSIONER (APPEALS) AND TRIBUNAL WERE PASSED ON MATERIAL ON R ECORD, THE HON'BLE HIGH COURT MISDIRECTED IN DISTURBING THE CONCURRENT FINDING OF FACT. IN THE PRESENT CASE THE FACTS ARE NOT SAME AS WAS BEFORE HON'BLE SUPREME COURT IN THE CASE OF P. MOHANAKALA (SUPRA). THE RATIO LAID DOWN BY HON'BLE SUPREME COURT IS THA T THE DECISION OF APPELLATE TRIBUNAL IS FINAL SO FAR AS IT IS ON FACTS. THE POWERS OF HO N'BLE HIGH COURT CAN BE EXERCISED ONLY WHERE THERE IS A SUBSTANTIAL QUESTION OF LAW OR WHE RE THE FINDING OF FACT IS PERVERSE. THUS ULTIMATE RATIO LAID DOWN IS THAT THE HON'BLE SUPREM E COURT IS NOT TO DECIDE THE QUESTION OF FACTS AND THE DECISION OF TRIBUNAL ON FACTS SHAL L BE FINAL. THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF RAJEEV TANDON (SUPR A) IS ALSO NOT APPLICABLE, IN THE SAID CASE THE ADDITIONS WERE MADE ON ACCOUNT OF UNE XPLAINED GIFTS IN THE COURSE OF REGULAR ASSESSMENT. IN THE PRESENT CASE THE ADDITIO NS WERE MADE IN THE BLOCK ASSESSMENT UNDER SECTION 158 BC. UNDER SECTION 158 BB, UNDISCLOSED INCOME OF THE BLOCK PERIOD SHALL BE COMPUTED IN ACCORDANCE WITH THE PROVISION OF THIS A CT ON THE BASIS OF EVIDENCE FOUND AS A RESULT OF SEARCH AND SUCH OTHER MATERIA L OR INFORMATION AS ARE AVAILABLE WITH THE ASSESSING OFFICER AND RELATABLE TO SUCH EVIDENC E. THUS FINDING OF EVIDENCE AS A RESULT OF SEARCH FOR COMPUTATION OF UNDISCLOSED INCOME IS A SINE QUA NON. IN THE PRESENT CASE DURING THE COURSE OF SEARCH, NO EVIDENCE WAS FOUND WHICH RELEVANT THAT THE GIFT WAS BOGUS. THE QUERIES WERE CONDUCTED BY ADIT AFTER THE SEARCH WAS COMPLETED. THUS, THE DECISION OF HON'BLE DELHI HIGH COURT CANNOT BE APPL IED IN THE PRESENT CASE. ACCORDINGLY, GROUND NOS. 2 & 3 FAILS. 11. IN THE CROSS-OBJECTION, THE ASSESSEE SUPPORTS T HE ORDER OF LD. CIT(A). NO ARGUMENTS ARE ADVANCED AS TO HOW THE ASSESSING OFFICER WAS NO T JUSTIFIED IN FRAMING ASSESSMENT 30 IT(SS)A NO.134/DEL/2003 IT(SS)A NO.328/DEL/2003 UNDER SECTION 158BC. THEREFORE, FRAMING OF ASSESSME NT IS NOT DISPUTED BY THE ASSESSEE THOUGH THE ADDITIONS MADE THEREIN ARE SUBJECT MATTE R OF DISPUTE WHICH HAVE BEEN DEALT IN THE APPEAL. 12. IN THE RESULT, THE APPEAL AND CROSS-OBJECTION ARE DISMISSED. 26. SINCE THE FACTS IN THE INSTANT CASE ARE IDENTIC AL TO THE FACTS DECIDED BY THE TRIBUNAL IN THE CASE OF MR. DALIP JOLLY (SUPRA), TH EREFORE, FOLLOWING THE DECISION OF THE TRIBUNAL IN THE CASE OF THE RELATED PARTY AN D IN ABSENCE OF ANY CONTRARY MATERIAL BROUGHT TO OUR NOTICE, WE UPHOLD THE ORDER OF THE LD. CIT(A) IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER. THE GR OUND RAISED BY THE REVENUE IS ACCORDINGLY DISMISSED. 27. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES AND THE APPEAL FILED BY THE RE VENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 08 TH JANUARY, 2018. SD/- SD/- (SUCHITRA KAMBLE) (R. K. P ANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 08-01-2018. SUJEET COPY OF ORDER TO: - 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT 4) THE CIT(A) 5) THE DR, I.T.A.T., NEW DELHI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, NEW DELHI