Sri Kailash Chandra Moharana, Jagatsinghpur V. ACIT, Cuttack

ITSSA 4/CTK/2008

• Counselvise Citation: [2010] 124 COUNSELVISE.COM (IT) 8807 (ITAT-CUTTACK)
• Duration Of Justice: 2 year(s) 8 month(s) 16 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 19-11-2010
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 18-11-2010
• Assessment Year: misc
• Appeal Filed On: 04-03-2008
• Court: TRIBUNAL
• Department Lawyers: A K GAUTAM
• Assessee Lawyers: P R MOHANTY
• Keywords: Unexplained investment; Document seized; Valuation report; Block assessment; Documents seized

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK ( ) BEFORE . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER. /AND , SHRI GEO RGE M ATHAN, JUDICIAL MEMBER / I.T (SS) A.NO. 04/CTK/2008 BLOCK PERIOD FROM 1.4.1990 TO 23.6.2000 SHRI KAILASHCHANDRA MOHARANA,PLOT NO.01, GOURAV VIHAR, PARADEEP,JAGATSINGHPUR PAN AFKPM 4797 B - - - VERSUS - ASST.COMMISSIONER OF INCOME - TAX , CIRCLE 1(1), CUTTACK. ( /APPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI P.R.MOHANTY, AR / FOR THE RESPONDENT: / SHRI A.K.GAUTAM, DR / ORDER PER BENCH : THIS APPEAL BY THE ASSESSE E RAISES THE FOLLOWING GROUNDS. 1 . FOR THAT THE ORDER OF THE FORUM BELOW IS ILLEGAL, BASED ON INCORRECT APPRECIATION OF LAW, AS WELL AS OF FACTS AND CIRCUMSTANCES OF THE CASE, THUS DESERVES TO BE QUASHED IN LIMINE. 2 . FOR THAT THE SUSTENANCE OF ADDITION OF 2 0,000, DURING ASSESSMENT YEAR 1995 - 96 AND FURTHER 24,000, DURING THE ASSESSMENT YEAR 1997 - 98, TOWARDS INVESTMENT IN MUTUAL FUND, ON THE GROUND THAT THE INVESTMENT WOULD NOT BE EXPLAINED BY THE DISCLOSED INCOME IS TOTALLY UNJUSTIFIED AND ERRONEOUS. 3 . FOR THAT WHEN THE FILING OF RETURN, FOR THE BLOCK PERIOD WAS DELAYED, DUE TO DELAY IN SUPPLY OF SEIZED DOCUMENTS BY THE LD. A.O., THEREFORE, THE CHARGING OF INTEREST U/S. 158BFA(1) IS UNJUSTIFIED. 4 . FOR THAT THE LD. CIT(A) IS ON IN SUSTAIN ADDITION OF 22,11,7 00 TOWARDS INVESTMENT IN SARASWATI MOVIES, PARTICULARLY WHEN THE EXISTENCE OF THE PARTNERSHIP FIRM HAS BEEN ACCEPTED BY THE LD. A.O. I.T(SS)A.NO. 04/CTK/2008 2 5 . FOR THAT THE LD. CIT(A) IS EQUALLY UNJUSTIFIED, IN SUSTAINING ADDITION, ON ACCOUNT OF UNEXPLAINED INVESTMENT IN GUEST HOU SE AT BARAMUNDA FOR 18,87,900. 6 . FOR THAT FURTHER THE LD. CIT(A) IS NOT AT ALL JUSTIFIED, IN SUSTAINING ADDITION OF 4,00,000 ON ACCOUNT OF ONE ROAD ROLLER, CITING NO EVIDENCE WAS FURNISHED BY THE APPELLANT, PARTICULARLY WHEN IN A SEARCH CASE THE BURDEN LIES ON THE DEPARTME NT TO PROVE. 2. THE REGISTRY INFORMS THAT THE APPEAL WAS BELATEDLY FILED BY 22 DAYS WHICH DELAY HAS BEEN PETITIONED TO BE CONDONED BY THE ASSESSEE VIDE AFFIDAVIT DT.12.11.2010.THE ASSESSEE IN THE AFFIDAVIT SUBMITS THAT THE ASSESSEE WAS SUFFERING FROM HIG H FEVER WHICH PREVENTED HIM TO ASSIGN AN AUTHORIZED REPRESENTATIVE OR TO FILE DOCUMENTS DULY SIGNED WHICH DELAY MAY KINDLY BE CONSIDERED FOR CONDONATION. 3. THE LEARNED DR OPPOSED THE CONTENTION FOR CONDONING THE DELAY INDICATING THAT NO MEDICAL CERTIFICA TE HAS BEEN FILED ALONG WITH THE AFFIDAVIT TO SUBSTANTIATE THAT THE ASSESSEE WAS SUFFERING FROM HIGH FEVER. 4. AFTER HEARING THE RIVAL SUBMISSIONS WE ARE OF THE CONSIDERED VIEW THAT THE DELAY OF 22 DAYS ON ACCOUNT OF ASSESSEES INABILITY TO PURSUE FOLLOWI NG UP THE APPEAL EITHER IN CONSULTATION WITH THE COUNSEL OR TO SIGN PAPERS AND DOCUMENTS WAS SUFFICIENT CAUSE FOR PREVENTING HIM TO FILE THE APPEAL WITHIN THE LIMITATION PROVIDED WAS BONAFIDELY ACCEPTABLE AS PUT FORTH BY THE LEARNED COUNSEL BEFORE US. THE DELAY IS CONDONED AND APPEAL IS ADMITTED FOR HEARING IN SO FAR AS THIS APPEAL HAD COME UP FOR HEARING MANY TIMES EARLIER BEGINNING FROM 4 TH MAY,2009 FOR DISPOSAL. I.T(SS)A.NO. 04/CTK/2008 3 5. INITIATING THE ARGUMENTS ON THE GROUNDS RAISED BY THE ASSESSEE IN THIS APPEAL, THE LEARNE D COUNSEL SUBMITTED THAT THE LEARNED ASSESSING AUTHORITY BASING UPON THE SEIZED DOCUMENT MARKED HPL - 65 ADDED AN AMOUNT OF 44,000 TOWARDS INVESTMENT IN MUTUAL FUND STATING THEREIN IN THE ASSESSMENT ORDER AS UNDER: FURTHER FROM SEIZED MATERIAL HPL - 65 IT IS SEEN THAT THE ASS ESSEE HAS PURCHASED SBI MUTUAL FUND AMOUNTING. TO 20,000 DATED 21.01.1995 AN AMOUNT TO 24,000 DATED 21.01.1997. NO EXPLANATION WAS OFFERED BY THE ASSESSEE REGARDING THE SOURCE. NEITHER IN THE CASH FLOW STATEMENT THE SAME IS REFLECTED. THE REGULAR RETUR NS FILED BY THE ASSESSEE FOR THE A/Y 1995 - 96 AND A/Y 1997 - 98 DO NOT REFLECT THE SAME. THEREFORE, AN AMOUNT OF 44,000 IS TO BE TREATED AS UNDISCLOSED INVESTMENT. GENERALLY THERE IS NO SCOPE IN THE FORMAT OF RETURN TO SHOW OR DEPICT ANY INVESTMENT, BUT T HE SAME CAN BE REFLECTED IN THE STATEMENT OF INCOME, AS PER THE SWEET WILL OF THE APPELLANT AND IF THE APPELLANT IS WELL AWARE OF THE FACT THAT AS PER LAW HE SHOULD DISCLOSE IT AND FOR DOING SO HE HAS TO MENTION THE SAME TO THE TAX CONSULTANT SO THAT IT CA N BE INCORPORATED IN THE STATEMENT OF INCOME FILED FOR THE RELEVANT ASSESSMENT YEAR. AS MENTIONED IT IS CLEAR THAT THE APPELLANT IS NOT EXPECTED TO KNOW ALL THE RULES AND REGULATION AND THE CONCERNED PROVISIONS OF INCOME TAX LAWS AND AS FAR AS INVESTMENT I N MUTUAL FUND AMOUNTING TO 20,000 AND 24,000 FOR THE A/Y 1995 - 96 AND A/Y 1997 - 98 IS CONCERNED THE SAME IS FROM THE DISCLOSED SOURCE OF INCOME PARTICULARLY WHEN THE APPELLANT DISCLOSED RETURN OF INCOME DURING THE A/Y 1995 - 96 IS 5,77,550 AND 9,73,580 FOR A/Y 1997 - 98. THEREFORE SUFFICIENT FUND IS AVAILABLE AND AS THE INVESTMENT IS A PALTRY AMOUNT , THE SAME MAY PLEASE BE DELETED. IN THIS CASE THE FILING OF BLOCK RETURN HAS BEEN DELAYED FOR WANT OF XEROX COPIES OF THE SEIZED MATERIALS, WHICH WAS NOT PROV IDED IN DUE TIME EVEN AFTER REPEATED REQUEST BY THE APPELLANT TO THE DEPARTMENT. IN THE CASE I.T(SS)A.NO. 04/CTK/2008 4 OF M/S K.C.BUILDERS, PARADEEP A GROUP CASE WHICH ALSO SUFFERED BLOCK ASSESSMENT ALONG WITH THE APPELLANT THE ISSUE HAS BEEN DECIDED IN FAVOUR OF THE APPELLANT BY T HIS HONBLE ITAT, CUTTACK BENCH, CUTTACK IN I.T (SS)A NO - 03/CTK/2008 DT 12/06/09 THE SAME DECISION MAY KINDLY BE CONSIDERED. THE LEARNED COUNSEL OF THE ASSESSEE DID NOT WISH TO PRESS GROUNDNO.4 WHICH IS DISMISSED AS NOT PRESED. THE LEARNED ASSESSING AUTHO RITY BASING UPON SEIZED DOCUMENT GPI - 1, GPI - 7 & GPI - 8 ADDED AN AMOUNT OF 18,87,900 TOWARDS UNEXPLAINED INVESTMENT IN THE GUEST HOUSE, MORE PRECISELY AN AMOUNT OF 3,65,400 TOWARDS INVESTMENT IN FURNITURE IN THE GUEST HOUSE AND AN AMOUNT OF 15,22,900 T OWARDS RENOVATION OF THE GUEST HOUSE. AS A MATTER OF FACT THE LEARNED ASSESSING AUTHORITY REFERRED THE MATTER TO THE DVO AND THE VALUATION REPORT WAS OBTAINED AFTER THE SEARCH WHICH VALUED THE SAID PROPERLY AT 8,63,900 WHICH INCLUDES RENOVATION COST AT 4,03,900. THE ADDITION TOWARDS FURNITURE AND FIXTURE AMOUNTING TO 3,65,400 IS DONE ON PURE GUESS WORK AS THE STOCK REGISTER DOES NOT CONTAIN ALL THE RATE OF PURCHASE, THE SAME IS LEFT TO THE WILD AND WIDE GUESS WORK OF THE LEARNED ASSESSING AUTHORITY, W HO AFTER THOROUGH DELIBERATION, ACTING UPON HER SWEET WILL ESTIMATED THE COST OF FURNITURE & FIXTURE AT 3,65,400 WHICH ACCORDING TO THE APPELLANT IS ACTUALLY 1,66,913 AND TO SUBSTANTIATE THE SAME EVIDENCE IS ALSO PLACED IN THE PAPER BOOK UNDER THE RELE VANT HEAD, WHICH MAY BE VERIFIED AND SO FAR THE SOURCE OF THIS EXPENDITURE IS CONCERNED, THE SAME HAS BEEN DONE FROM THE TOTAL AMOUNT RECEIVED BY THEGUEST HOUSE AS EVIDENT FROM THE SEIZED DOCUMENT MARKED AS GPL - 7 AMOUNTING TO 15,22,990. AN AMOUNT OF 2, 70,000 HAS BEEN RECEIVED FROM MR.P.C. DALAI, IAS OFFICER, WHO HAS A HOUSE AT B/227, VERY CLOSE TO THE GUEST HOUSE AT B/11, BARAMUNDA, BBSR. MR.P.C.DALAI, IAS OFFICER, PROVIDED THIS MONEY TO THE APPELLANT TO CARRY OUT CERTAIN RENOVATION TO HIS HOUSE AT B/2 27, BARAMUNDA, FOR WHICH THE TOTAL EXPENDITURE INCURRED I.T(SS)A.NO. 04/CTK/2008 5 AMOUNTS TO 2,78,264 AND SO FOR AS RECEIVING OF AN AMOUNT OF 2,70,000 AND EXPENDITURE OF 2,78,246 IS CONCERNED, THE SAME IS WELL VERIFIABLE FROM THE SEIZED DOCUMENT MARKED AS GPI - 7 & GPI - 8 AND THE RELEVANT PORTION OF THE SEIZED DOCUMENT IS ALSO PROVIDED IN THE P APER BOOK FOR THE APPELLATE AUTHORITY TO APPRECIATE THE SAME. AS THE APPELLANT IS A SUPER CLASS CONTRACTOR HAVING EXPERTISE & EXPERIENCE TO CARRYOUT SUCH TYPE OF WORK, HENCE, MR. P.C. DALAI, LAS, WHO HAPPENS TO BE A FRIEND OF THE APPELLANT REQUESTED THE AP PELLANT TO CARRY OUT THE RENOVATION AS DIRECTED BY HIM AS A FRIEND, WHICH CAN BE WELL ESTABLISHED FROM THE SEIZED DOCUMENT AS DISCUSSED ABOVE, HENCE, AN AMOUNT OF 2,78,246 DESERVES TO BE DEDUCTED FROM 15,22,900 AS THE SAME IS EXPLAINED. OUT OF 12,18,245 AN AMOUNT OF 2,03,000 IS RECEIVED FROM DIFFERENT PERSONS APART FROM MR. K. C. MOHARANA, I.E., THE APPELLANT FOR EXECUTION OF DIFFERENT WORKS BY THE GUEST HOU SE STAFFS AND AS THE SAME DOES NOT CONSTITUTE APPELLANTS OWN MONEY AND AS THE SAME IS WELL ESTABLISHED FROM THE SEIZED DOCUMENTS THE SAME MAY KINDLY BE DEDUCTED FROM 15,22,900. AN AMOUNT OF 30,692 IS RECEIVED FROM THE GUEST HOUSE TOWARDS ROOM RENT WHI CH HAS BEEN SEPARATELY ASSESSED AND AN AMOUNT OF 6,56,617.95 HAS BEEN RECEIVED FROM THE APPELLANT TOWARDS EXPENDITURE INCURRED FOR THE GUEST HOUSE DURING THE PERIOD. ALL THIS IS QUITE EVIDENT FROM THE SEIZED DOCUMENT THAT THE DEPARTMENT RELIES UPON BUT U NFORTUNATELY DESPITE OF THE DVOS REPORT AND THE SIZED DOCUMENT THEY ARE ONLY TAKING INTO CONSIDERATION PART OF THE DOCUMENTS WHICH FAVOURS THE DEPARTMENT AND LEAVE THE OTHER PART OF THE SEIZED DOCUMENT WHICH FAVOURS THE APPELLANT TO BE PROVED WHICH IS QUI TE UNLAWFUL AND AGAINST JUDICIAL PROPRIETY. THEREFORE THE ABOVE AMOUNTS I.E., 3,65,400 + 2,78,246 + 30,692 + 6,56,618 + 2,03,000 = 15,33,956 MAY KINDLY BE DELETED FROM THE TOTAL ADDITION OF 18,87,900. O N THE LAST GROUND HE SUBMITTED T HAT THE APPELLANT MR. KAILASH I.T(SS)A.NO. 04/CTK/2008 6 CHANDRA MOHARANA WHO HAPPENS TO BE THE PROPRIETOR OF MIS. RANA CONSTRUCTION SINCE ASSESSMENT YEAR 1992 - 93 AND MANAGING PARTNER OF THE PARTNERSHIP FIRM M/S. K C MOHARANA EXECUTES WORKS CONTRACT UNDER DIFFERENT PRINCIPALS AND FOR MEETING THE REQUIREMENT OF THE TENDER AS SPECIFIED IN THE BODY OF THE TENDER PROVIDES CERTAIN DOCUMENTS WHICH IS A MERE FORMALITY, WHICH IS A WELL KNOWN ASPECT AND TO MAKE THE STAKE MORE ATTRACTIVE. BIDDERS INVARIABLY NOT ONLY INFLATE THEIR TURNOVERS BUT ALSO ASSETS POSSESSED BY THEM TO EXECUTE THE WORK, AS THERE IS NO PHYSICAL VERIFICATIO N CONDUCTED BY THE PRINCIPALS OR THE CONTRACTORS AS IT IS A MERE FORMALITY. DURING THE APPELLATE PROCEEDING IT WAS EXPLAINED THAT THE APPELLANT DOES POSSES CERTAIN ASSETS IF NOT ALL AND MOST OF THE ASSETS WERE PURCHASED PRIOR TO THE BLOCK PERIOD AND DULY D ISCLOSED IN THE RETURN AND AFTER DUE VERIFICATION OF RELEVANT DOCUMENTS THE APPELLATE AUTHORITIES DELETED MOST OF THE ADDITIONS. BUT UNFORTUNATELY THE LIST PROVIDED TO PRINCIPALS FOR PARTICIPATING IN TENDERS ALSO CONTAINS A ROAD ROLLER WHICH THE APPELLANT DOES NOT POSSESS BUT TIME AND AGAIN THE APPELLANT WAS ASKED TO PROVE THAT HE SHOULD PROVIDE EVIDENCE REGARDING THE SAME WITHOUT TAKING INTO CONSIDERATION HOW CAN SOME BODY PROVE THE EXISTENCE OF SOME THING WHICH DOES NOT EVEN EXIST PARTICULARLY WHEN IN A SEARCH CASE THE BURDEN LIES WITH THE REVENUE WHEN THE LAW OF BURDEN IS CANONIZED IN COMMON LAW DOCTRINE. IN VIEW OF THE ABOVE DISCUSSION IT IS PRAYED THAT THE UNJUSTIFIED ADDITION MAY KINDLY BE DELETED. 6. THE LEARNED DR OPPOSED THE CONTENTIONS OF THE L EARNED COUNSEL IN SO FAR AS IN ORDER TO CLAIM A DEDUCTION TO HOLDING THE INVESTMENT IN MUTUAL FUNDS, NO CASH FLOW STATEMENT HAS BEEN FURNISHED TO THE AUTHORITIES BELOW WAS CONSIDERED BY THE LEARNED CIT(A) INDICATING THAT IT WAS ONLY A RESIDUAL AMOUNT TO BE TAXED AS UNDISCLOSED INCOME FOR THE BLOCK PERIOD. I.T(SS)A.NO. 04/CTK/2008 7 6(I) . ON THE ISSUE REGARDING INTEREST U/S.158BFA(1), THE LEARNED DR AGREED TO THE PROPOSITION AS SUBMITTED BY THE LEARNED COUNSEL OF THE ASSESSEE THAT THE ASSESSEE WAS PREVENTED OF NOT HAVING COPIES OF TH E SEIZED MATERIAL WHICH PERIOD MAY BE EXCLUDED FROM LEVY OF INTEREST AS WAS CONSIDERED BY THE TRIBUNAL IN THE CASE OF K.C.BUILDERS, PARADEEP IN IT(SS)A NO.03/CTK/2008 PERTAINING TO THE ASSESSEE BEFORE THE TRIBUNAL NOW. 6(II) . GROUND NO.4 RELATING TO SUSTA INING ADDITION OF 22,11,700 IS NOT PRESSED BY THE LEARNED COUNSEL FOR ARGUMENT, THEREFORE, STANDS CONFIRMED AS CONFIRMED BY THE LEARNED CIT(A). 6(IV) . WITH RESPECT TO GROUND NO.5, THE LEARNED DR POINTED OUT THAT THE ASSESSEE IS TRYING TO ANALYZING THE FACTS AS WERE ENUME RATED FOR VALUATION BY THE DVO WHICH NOW HAS FURTHER BEEN SEGREGATED ACCORDING TO THE ASSESSEES CONTENTION ON VARIOUS GROUNDS WHICH ISSUE MAY KINDLY BE RESTORED FOR CONSIDERATION TO THE ASSESSING OFFICER TO DECIDE AFRESH KEEPING IN MIND THAT THE ISSUE IS BEING DEALT BY THE ASSESSING OFFICER ON RESTORATION BY THE TRIBUNAL IN THE FIRST INNINGS WITHOUT INDICATING WHAT PREVENTED THE ASSESSEE TO SUBMIT THE SAME BEFORE THE AUTHORITIES BELOW. 6(V) . ON THE ISSUE OF ROAD ROLLER HAVING BEEN BROUGHT TO TAX AS UNDIS CLOSED INCOME, THE DOCUMENTARY EVIDENCE THAT THE ASSESSEE WAS HOLDING THIS ROAD ROLLER ALONG WITH OTHER TRUCKS MAY KINDLY BE PERUSED. IT IS NOT THE CASE OF THE ASSESSEE THAT THE ROAD ROLLER DOES NOT BELONG TO HIM WAS THEREFORE APPROPRIATELY CONSIDERED FOR TAXATION AND CONFIRMED BY THE LEARNED CIT(A). HE PRAYED THAT THE ORDER OF THE LEARNED CIT(A) BE CONFIRMED. I.T(SS)A.NO. 04/CTK/2008 8 7 . WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ON CAREFULLY CONSIDERATION OF THE FACTS AND CIRCUMSTANCES, WE PR OCEED TO ANALYZE THE VARIOUS GROUNDS ON THE BASIS OF DISCUSSIONS AS ENUMERATED ABOVE. 7(I) . WE FIND FORCE IN THE CONTENTION OF THE LEARNED COUNSEL OF THE ASSESSEE THAT THE 20,000 IN THE ASSESSMENT YEAR 1995 - 96 AND 24,000 IN THE ASSESSMENT YEAR 1997 - 98 WAS ON THE BASIS OF ASSESSEE DECLARING INCOME WHICH WAS ADVISED TO BE COMPENSATED INVESTMENT IN MUTUAL FUNDS WHICH ENTITLED IT TO CLAIM EXEMPTION. THEREFORE, IT WAS NEVER BROUGHT TO INCOME AS UNDISCLOSED AS MISCONSTRUED AS BROUGHT OUT FOR THE FIRST TIME B Y THE LEARNED CIT(A). THE DRAWINGS OF AN INDIVIDUAL DIVERTED FOR INVESTMENT THEREFORE ARE DISCOVERED ONLY AT THE TIME OF SEARCH IN THE BUSINESS OF ANY CLAIMANT OF HOLDING THE SAME AT THE TIME OF SEARCH. THE IMPUGNED AYS HAS DEFINITELY HAD SUCH INCOME WHICH COULD NOT BE PLACED AGAINST THE CASH FLOW TO SINGLE OUT THIS INVESTMENT IN A PARTICULAR YEAR AS NO SIMULTANEOUSLY BALANCE SHEET HAS BEEN SHOWN FOR THE DRAWINGS WHETHER HELD AS CASH OR INVESTMENT. WE DO NOT FIND MERIT IN THE CONTENTION OF THE LEARNED CIT(A ) ON THIS SCORE AND THE SAME ARE DIRECTED TO BE DELETED. 7(II) . ON THE NEXT GROUND, THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE TRIBUNAL IN THE ASSESSEES PROPRIETORSHIP CONCERN HAS DIRECTED THE INTEREST TO BE BORNE IN ACCORDANCE WITH THE SAID PRINCIPLE OF COMPUTING THE PERIOD OF DELAY ATTRIBUTABLE TO THE ASSESSEE WHEN THE SEIZED MATERIAL WAS NOT MADE AVAILABLE BY THE ASSESSING OFFICER WITHIN THE STIPULATED PERIOD ALLOWED BY HIM FOR FILING THE RETURN. ACCORDINGLY, WE RESTORE THE ISSUE TO TH E ASSESSING OFFICER FOR RE - COMPUTATION OF INTEREST ACCORDINGLY. I.T(SS)A.NO. 04/CTK/2008 9 7(III) . THE LEARNED COUNSEL HAS NOT PRESSED GROUND NO.4, WHICH IS DISMISSED AS NOT PRESSED AS NOTED IN THE ORDER - SHEET. 7(IV) . WITH RESPECT TO THE ADDITION OF UNDISCLOSED INVESTMENT AMOUNTING TO 18,87,900, WE ARE OF THE CONSIDERED VIEW THAT THE VARIOUS SUBMISSIONS WHICH HAD CAME UP FOR CONSIDERATION ON THE BASIS OF SEIZED DOCUMENTS AND FORMING PART OF THE PAPER BOOK AS HAS BEEN PERUSED BY US WHICH INDICATE THAT IT WAS NOT THE CASE OF THE ASS ESSEE TO REBUT THE FINDING OF THE DVO FOR THE MAINTENANCE AND CONSTRUCTION OF BARMUNDA GUEST HOUSE IN SO FAR AS THE ASSESSEE HAS ALREADY INCURRED SUCH EXPENSES FROM VARIOUS SOURCES WHICH INDICATION WAS AVAILABLE ON THE BASIS OF CONCERNS WHICH ARE HOLDING T HE ASSETS OF SUCH MAGNITUDE FROM RESPECTIVE SOURCES. THIS WAS TO BE VERIFIED BY THE ASSESSING OFFICER ON THE BASIS OF ESTABLISHING THAT THESE AMOUNTS STOOD DECLARED IN THE RESPECTIVE UNITS OR INCOME GENERATING ASSETS. THE ASSESSING OFFICERS EFFORTS TO CO - RELATE THE VALUATION TO THE SEIZED DOCUMENTS THEREFORE FALLS SHORT BY THE SUM OF 3,53,944 WHICH THE LEARNED COUNSEL FOR THE ASSESSEE AGREED WAS THE PROPORTION OF THE UNDISCLOSED INCOME NOT IDENTIFIED WITH ANY INVESTMENT IN BARMUNDA GUEST HOUSE AS COMPUTE D BY THE DVO. ON THIS SCORE THIS ADDITION IS DIRECTED TO BE CONFIRMED AT 3,53,944 AS AGAINST 18,89,500 CONFIRMED BY THE LEARNED CIT(A). 7(V) . ON THE LAST GROUND RELATING TO THE COST OF ROAD ROLLER AT 4 LAKHS, WE ARE OF THE CONSIDERED VIEW THAT THE F IGURE ADOPTED BY THE ASSESSING OFFICER WAS NO WHERE MENTIONED. ON EXCLUSIVE QUERY TO THE LEARNED DR THAT WHETHER THE FIGURE OF INVESTMENT WAS DEPICTED ANYWHERE, THE LEARNED DR SUBMITTED THAT ONE ASSET OF SUCH MAGNITUDE DID NOT REQUIRE FURTHER VERIFICATION WAS TO BE CONSIDERED WITH OTHER ASSETS SHOWN IN THE DOCUMENTS SEIZED. THE I.T(SS)A.NO. 04/CTK/2008 10 DOCUMENT SEIZED IS BASICALLY A LIST OF ASSETS SHOWN BY THE ASSESSEE TO BE SUBMITTED WITH THE CONTRACT DOCUMENTS FOR OBTAINING THE TENDER FOR ROAD CONSTRUCTION FOR THE NATIONAL HIGHWA Y AUTHORITIES OF INDIA LTD. WE FIND FORCE N THE CONTENTION OF THE LEARNED COUNSEL OF THE ASSESSEE THAT A NEGATIVE FACT CANNOT BE ESTABLISHED BY A POSITIVE EVIDENCE TO BE BROUGHT ON RECORD IN SO FAR AS THE ROAD ROLLER REQUIRES REGISTRATION WHICH FACT SHOULD HAVE BEEN BORNE INMIND BY THE ASSESSING OFFICER OR THE LEARNED CIT(A) ESTABLISHING THAT AMONGST THE OTHER TRUCKS AND VEHICLES OWNED BY THE ASSESSEE AS WERE ALSO INDICATED IN THE DOCUMENT, EFFORT SHOULD HAVE BEEN MADE TO VERIFY WHETHER THE ASSESSEE OWNED T HE ROAD ROLLER. THE ROAD ROLLER, IF ANY, WAS PURCHASED BEFORE THE BLOCK PERIOD THEREFORE COULD NOT HAVE BECOME PART OF UNDISCLOSED INCOME AS COMPUTED BY THE ASSESSING OFFICER. 7(VI) . IN VIEW OF THE ABOVE, THIS ADDITION IS ALSO DIRECTED TO BE DELETED. 8 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 19 TH NOVEMBER, 2010 SD/ - SD/ - ( ) , (GEORGE MATHAN ),JUDICIAL MEMBER ( . . ) , , (K.K.GUPTA), ACCOUNTANT MEMBER. ( ) DATE: 19 TH NOVEMBER,2010 ( ), ( H.K.PADHEE ), SENIOR.PRIVATE SECRETARY. I.T(SS)A.NO. 04/CTK/2008 11 - COPY OF THE ORDER FORWARDED TO: 1 . / THE APPELLANT : SHRI KAILASHCHANDRA MOHARANA,PLOT NO.01, GOURAV VIHAR, PARADEEP,JAGATSINGHPUR 2 / THE RESPONDENT: ASST.COMMISSIONER OF INCOME - TAX, CIRCLE 1(1), CUTTACK. 3 . / THE CIT, 4 . ( )/ THE CIT(A), 5 . / DR, CUTTACK BENCH 6 . GUARD FILE . / TRUE COPY, / BY ORDER, [ ] SENIOR PRIVATE SECRETARY